Chapter 10
With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in. . . .
—Abraham Lincoln, Second Inaugural Address, March 1865
WHEN Ulysses S. Grant and Robert E. Lee met on April 9, 1865, at Wilmer McLean’s farm in Appomattox Courthouse, Virginia, their armies were no longer comparable. Lee’s Army of Northern Virginia was on its last legs. Hunger and desertions had decimated its ranks. Neither, in Grant’s view, were the two armies morally alike. Sitting with Lee at the McLean farm, Grant reflected to himself that his counterpart’s cause was “one of the worst for which a people ever fought.”
Yet the Union commander had no doubt about the Confederate general’s sincerity. Grant thought “the great mass” of Confederate soldiers had fought with the same earnestness, and this made all the difference. The human tendency to persuade oneself of one’s cause was the starting point for the rules of Enlightenment warfare that Grant and Lee had learned at West Point. It was why civilized armies did not hold their enemies’ causes against them, even when they seemed heinous. And it was why, despite all their differences, the two men met that day as equals in the eyes of the law.
In keeping with the customs and usages of enlightened soldiers, Grant accepted Lee’s surrender on remarkably magnanimous terms. Some 25,000 Confederate soldiers went home on the promise not to take up arms again. Grant promised that so long as they kept their oaths, they would not be punished by the United States for their role in the conflict.
What Grant and Lee and every other West Point graduate knew was that civilized wars ended in agreements to forget the perceived wrongs of the contending sides, not in the punishment of a vanquished enemy. Once war was over, the need to retaliate for past violations of war’s rules in order to ensure future compliance virtually disappeared. Moreover, the prospect of punishment threatened to make war a ghastly fight to the bitter end. Men facing punishment and death might never surrender.
The favored practice in the age of enlightened warfare was to grant amnesty to the subjects of the warring states for their actions in the conflict, consigning violations of the laws of war to what eighteenth-century peace treaties called “a general oblivion.” As Francis Lieber’s old Prussian handbook put it, peace offered “forgetting and amnesty” (Vergessenheit in the German) for “all discord, enmity, hostilities and of whatever deeds had been committed during the war.” Nine days after Appomattox, William TecumsehSherman and General Joseph Johnston (two more West Point graduates) agreed to magnanimous terms recognizing the rebel state governments, restoring the citizenship and rights of rebels, and offering a broad amnesty. Newly sworn-in President Andrew Johnson refused to accept the Sherman-Johnston agreement on the grounds that Sherman had badly exceeded his authority, but barely a month later the president issued an amnesty for all rebel soldiers, excepting high-ranking officers and those who had treated captured Union soldiers unlawfully. Peace treaties the following year between the United States and five Indian tribes that had allied themselves with the South took the same approach, adopting a “general amnesty of all past offences.”
Yet there was an alternative approach to the end of war, one that had long been adopted in civil wars. In the seventeenth century, the English Civil War had closed with the execution of prominent royalists. Widespread executions and purposeful starvation marked the grim finale of the uprising in Scotland in 1745. A half century later, Lord Charles Cornwallis (seventeen years removed from his defeat at Yorktown, Virginia) executed thousands of defeated Irish rebels. In the first decade of the nineteenth century,Napoleon imposed terrible punishments on men caught up in guerrilla insurgencies against his puppet governments, first in Calabria and then in Spain.
The code Lincoln issued in 1863 balanced precariously between the honorable soldier’s amnesty and the much harsher approach characteristic of civil wars. The fierce vision embodied in the code had already underwritten nearly 1,000 war crimes trials during the war. By its terms, it authorized treason prosecutions of rebels in the war’s wake, too. After John Wilkes Booth assassinated Lincoln on April 14, a mere five days after the courtly meeting of military commanders at Appomattox, northern sentiment tipped toward a fierce justice for the postwar world. Arrests of high-ranking Confederate officers and civilian officials followed hard on the heels of the April surrenders. The Union Army cast Jefferson Davis into solitary confinement at Fort Monroe in Virginia andheld his vice president, the diminutive Alexander Stephens of Georgia, at Fort Warren in Boston Harbor. In quick succession, Union forces arrested the former justice of the U.S. Supreme Court John Campbell and Confederate cabinet officials George Trenholm, James Seddon, John Reagan, Robert Hunter, and Stephen Mallory. Governors Zebulon Vance of North Carolina, Abraham Allison of Florida, and Joseph Brown of Georgia soon found themselves in prison, as did the Confederacy’s Canadian agent Clement Clay, Senator Benjamin Harvey Hill of Georgia, the Confederate agent for exchange Robert Ould, and a number of others. In May, the Lincoln assassination conspirators went on trial. Captain Henry Wirz, the commandant of the Andersonville prison camp, sat in the Old Capitol Prison in Washington, D.C., awaiting his own trial for abusing Union soldiers. And in midsummer, Secretary of War Stanton sent Francis Lieber into the Confederate archives on a mission to uncover evidence of complicity by Jefferson Davis and other high officials of the Confederacy in the crimes of the war.
Lieber’s foray into the rebel archives promised to undo the magnanimous spirit of Grant and Lee at Appomattox. His project aimed to support a vast system of war crimes trials and to carry the uncompromising approach to the laws of warfare into the postwar world. But it was not to be. Within two years, Jefferson Davis would walk out of Fort Monroe arm-in-arm with his wife. Eighteen months thereafter, Johnson would issue an amnesty for Davis and the last few Confederate officials yet to be pardoned. The project of turning the laws of war into a vehicle for prosecuting Confederate leaders had come to naught. But why?
JOHN WILKES BOOTH’S bullet denied Lincoln the chance to elaborate a full-blown plan for dealing with the rebels in the postwar world. But the martyred president left clues.
In his Second Inaugural Address, delivered on March 4, 1865, Lincoln voiced the thoughts that had preoccupied him in the fall of 1862 as he considered Emancipation and a more aggressive Union war effort. The problem, he told the inaugural crowd, was that each side to the conflict imagined it was in the right. Men in the North and the South “read the same Bible, and pray to the same God; and each invokes His aid against the other.” It seemed impossible that those who fought to defend the evils of slavery could lay claim to God’s authority. But Lincoln cautioned against overconfidence. “Let us judge not that we be not judged,” Lincoln said, echoing the New Testament’s Matthew 7:1 God would judge, for there was sin enough for both sides. (“He gives to both North and South, this terrible war, as woe due to those by whom the offence came. . . .”) Our role on earth was to leave revenge behind and to move forward to “bind up the nation’s wounds.” Exquisitely attuned to the limits on man’s capacity to know for certain whether his way is the way of God, Lincoln finished the address with words that balanced humility with righteousness: “With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in . . . to do all which may achieve and cherish a just, and a lasting peace, among ourselves, and with all nations.”
Lincoln’s thinking in the final weeks of the conflict was singularly forward-looking. Charles Sumner remembered that the president “had been gentle & forgiving” down to the last. The president, Sumner recalled, “said nothing harsh even of Jefferson Davis,” and urged fellow Union men to “repeat the words quoted in his late address, ‘Judge not that ye be not judged.’” Lincoln’s actions matched his words. In December 1863, he offered full pardons to rebels willing to swear an oath of loyalty to the Constitution of the United States and respect all laws and presidential proclamations regarding Emancipation. (Lincoln excluded several classes of rebels, including high-ranking military officers, civil or diplomatic agents, and anyone who had treated black Union soldiers or their officers “otherwise than lawfully as prisoners of war.”) A year later, in his December 1864 message to the Congress, the president assured the nation that the offer remained open, though he warned that it would not remain open forever. All but Jefferson Davis, he said, would be allowed to “reaccept the Union.” (Privately he hoped Davis would escape abroad.) In February 1865, Lincoln even presented a plan to his cabinet that would have paid the South $400 million in compensation for Emancipation (equal to the cost of 200 days of war) and offered amnesty for treason if the rebels would agree to put down their arms.
When prominent American actor and Confederate sympathizer John Wilkes Booth assassinated Lincoln at Ford’s Theatre in Washington, he eliminated the Union leader most committed to the amnesty tradition in postwar justice. For there was a powerful backward-looking and sometimes vengeful streak in Union sentiment as well. In the Congress, Senator Benjamin Wade and the powerful Joint Committee on the Conduct of the War had been pressing since January for retaliation against the South for its treatment of Union soldiers and other atrocities. “If you go to war,” Wade thundered, “you have departed from the great principles laid down by Christ and His followers.” The forgiveness principle of the Sermon on the Mount, Wade insisted, thus had no application to conduct in war. Sumner disagreed, and cited his friend Lieber as an authority on the dangers of retaliation. But others, such as Senator Timothy Howe of Wisconsin, sided with the Joint Committee. The better biblical frame of reference, he said on the Senate floor, was not New Testament forgiveness but Old Testament retaliation: the law of an eye for an eye. “If they take a tooth,” Howe announced, the Union ought “to take another” in reprisal.
JOSEPH HOLT IN the War Department’s Bureau of Military Justice believed the assassination of Lincoln demanded severe postwar measures. But where Wade and Howe had pressed for retaliation, Holt sought the criminal punishment of Confederate leaders. In the spirit of his departed president’s code, he aimed to adapt the fierce law of war of the wartime military commissions for the postwar world.
In the days after Booth shot Lincoln, the assassination of the president was Holt’s overwhelming preoccupation. Booth had leapt to the stage and escaped (hobbled by his fall) through a back door. In the hours that followed, even before the president was dead, Edwin Stanton personally launched a fevered investigation, which he soon handed off to Holt and the Bureau of Military Justice. Within ten days, the government had arrested seven people Holt believed had conspired in the assassination. On April 26, Union troops tracked down and killed Booth in a Virginia barn seventy-eight miles from the capital and arrested his companion, the impressionable David Herold.
Stanton and Holt thought that the authority of their wartime military tribunals extended to the eight alleged conspirators in custody. Less than twenty years after Winfield Scott had pioneered the idea of the military commission in Mexico, the criminal punishment of those who violated the laws of war had become standard operating procedure in the Union war effort. The code of 1863, which set out much of the law that the military commissions applied, listed assassination as a violation of the laws of war. Though the provision had been drafted with the Confederate outlawry of Benjamin Butler and David Hunter in mind, it would apply just as well to the killing of Lincoln. The trial of the assassination conspirators would proceed in a military tribunal, as had hundreds of trials for violations of the laws of war in the preceding four years.
The new attorney general of the United States, James Speed, agreed. Lincoln had appointed Speed in December 1864 to replace the aging and ill Edward Bates. As a longtime antislavery lawyer from Kentucky, his instincts now ran to the protection of the freedpeople, something that became more apparent with time and that ultimately led to his resignation in 1866. But he was not the sharpest lawyer. Lincoln had chosen him for his border state political connections, not his legal acumen. An unsympathetic Justice Samuel Miller wrote that Speed was “one of the feeblest men” he had seen argue before the Court. And when President Johnson asked him whether the Lincoln conspirators could be tried in a military commission, Speed made what would prove to be a fateful error. In a long opinion, Speed contended not only that the assassination could and should be tried by military commission but that it could not be tried in any other forum. “If the persons charged have offended against the laws of war,” Speed opined, “it would be as palpably wrong for the military to hand them over to the civil courts, as it would be wrong in a civil court to convict a man of murder who had, in time of war, killed another in battle.”
Perhaps Speed was not to be blamed for erring. The law governing punishment for violations of the laws of war was startlingly new; the term “war crime” had not yet even come into use. But his mistake was an important one. There was no reason to see resort to the courts as legally unavailable. The theory of the prosecution was that Booth and his accomplices were not acting as lawful soldiers and therefore could not claim the privilege to kill that the law of war afforded. There was thus no need to charge Booth’s accomplices with war crimes at all. They might just as well have been charged with conspiracy to commit murder. But given the standard operating procedures of Holt’s Bureau of Military Justice, and given that the White House was in post-assassination disarray, little or no thought was put into whether the trial might better have taken place in the federal courts in Washington, D.C. Speed had reached his conclusion by May 1. And once the case was set for trial in a military commission, a series of tactical mistakes ensued, mistakes that almost certainly would not have been made in a civilian courtroom and that would soon come back to haunt Holt’s postwar effort to bring rebel leaders to trial.
WHEN THE LINCOLN assassination commission opened on May 9, 1865, six male defendants shuffled into a low-ceilinged room in the Old Arsenal Penitentiary in Washington. They were dressed in black and hooded so that they could not see. The two defendants who followed close behind—a woman named Mary Surratt and a seventh man named Dr. Samuel Mudd—were spared the indignity of the hood, but all the defendants wore shackles of one kind or another. Some were chained to heavy iron balls. At Holt’s order, the room had been closed to the public.
Having persuaded themselves that a military commission was necessary, Holt and his judge advocates had pressed the commission to its limits. Brevet Major General August Kautz, who sat as one of the members of the commission, thought the scene looked like something out of the Spanish Inquisition. “I was quite impressed with its impropriety in this age,” Kautz later recalled. Holt soon pulled back. On subsequent days, the hoods disappeared. The secrecy rule was lifted when the newspapers protested and Holt realized that he would not be able to prevent selective leaks. But the damage was done. The shackles remained, and so did the lasting image of the hooded defendants before a secret tribunal.
Two of the most trusted members of Holt’s wartime judge advocate team, John Bingham and Henry Burnett, assisted the judge advocate general in the trial. The three men presented a stream of witnesses whose testimony connected the defendants to Booth. Against six of them, the evidence (while not bulletproof) was relatively clear. George Atzerodt, who was supposed to have attacked Vice President Johnson but had failed to do so, had taken a room at the Kirkwood House hotel where the vice president was staying; weapons and a bankbook in Booth’s name were found in the room. Lewis Powell, who had been assigned to kill Secretary of State Seward and had nearly accomplished his goal, was identified by multiple eyewitnesses to his brutal knife attack on Seward in the secretary’s Washington home. David Herold had been captured with the assassin. Statements by one of the defendants, Samuel Arnold, convincingly connected Arnold and his co-defendant Michael O’Laughlin to an earlier plot by Booth to kidnap Lincoln, though there was little to suggest that either man had been involved in the events immediately surrounding the April 14 assassination. Edman Spangler, a stagehand and carpenter, was implicated by testimony showing that he had helped Booth get away down the back alley behind the theater.
The cases against Mary Surratt and the Virginia doctor named Samuel Mudd, the remaining two defendants, were considerably more controversial. Fleeing Washington, Booth and Herold had sought medical assistance at Mudd’s home within hours of the assassination; Mudd set Booth’s broken leg and failed to alert authorities to the possibility that his patient might have been the fugitive assassin. A boarder at Mary Surratt’s boardinghouse named Louis J. Weichman further testified that he had spent time together with Mudd and Booth in the capital weeks before Booth sought medical assistance from Mudd in Virginia.
Weichman also implicated Mary Surratt, testifying that Atzerodt, Powell, Herold, and Booth had all frequented the Surratt boardinghouse in the weeks leading up to the assassination and that Booth had spoken secretively with Mary and her son John, who later fled the country to evade arrest. Another witness, John Lloyd, also testified against Surratt. Lloyd, who had leased a farm and tavern from Surratt at the tiny Virginia crossroads known as Surrattsville, swore that John Surratt along with Herold and Atzerodt hadleft guns and ammunition at the tavern several weeks before the assassination, and that Mary Surratt had checked to make sure the guns were at the ready in the days before the assassination and had done so again on the fateful day itself. Also weighing against Surratt was the inconvenient fact that Powell had implicated her by his actions. He had been arrested three days after the assassination when he arrived poorly disguised at her boardinghouse while investigators were searching the premises.
The testimony of Weichman and Lloyd laid powerful, if circumstantial, cases against Surratt and Mudd. Had Holt stopped there, and especially if Surratt had been imprisoned with Mudd rather than executed, the Lincoln assassination trial might not have generated the controversy it has for the past 150 years. But Holt was not satisfied with pursuing the eight defendants before the commission. The charges named Jefferson Davis and seven Confederate agents in Canada as unindicted co-conspirators in the assassination plot. And when the case delved into this broader conspiracy theory, it began to come apart at the seams.
THE PRINCIPAL STRATEGY of the defense was to contest the authority of the military commission to try the defendants for violating the laws of war. Senator Reverdy Johnson of Maryland represented Mary Surratt and took the same position that John Lee had adopted when he was the Union judge advocate in 1862 and that Clement Vallandigham had advanced in 1864. Military tribunals, Johnson told the commission, had jurisdiction only over soldiers and moreover could try only those crimes that were specified in Congress’s Articles of War from 1806. Johnson willingly conceded that there might be an exception when the U.S. military operated outside its own borders, as it had in Mexico when Winfield Scott instituted military commissions in 1847. But to do so in the United States was an entirely different matter. The defendants here were not enemy aliens, they were U.S. citizens, living in the nation’s capital and in Maryland. Under such circumstances, Johnson contended, military tribunals were illegitimate substitutes for the kinds of treason prosecutions that the Constitution expressly committed to the federal courts. Indeed, Thomas Ewing, Jr. (the foster brother and brother-in-law of William Tecumseh Sherman and veteran of the bitter Missouri guerrilla war), argued on behalf of Dr. Mudd that the tribunals operated without law at all.
Holt’s team had powerful responses at the ready. Could it be the case, Bingham replied, that the military was empowered to shoot down Booth in cold blood but not to put assassins on trial under the laws of war? “By what law” was a president justified in killing one of the conspirators, but condemned for “subjecting to trial” others “according to the laws of war”? Attorney General Speed made the same argument in his opinion supporting the authority of the military tribunal. Military tribunals were the self-imposed restraint that soldiers adopted to be sure the particular person before them deserved death. War usually brought death to its victims with far less individualized attention to justice. No one other than pacifists (of whom there were precious few in 1865) doubted the legality of legitimate military killings in wartime. How, then, could trying and executing the same people for violations of the laws of war be unlawful?
As Speed saw it, “the civil courts have no more right to prevent the military, in time of war, from trying an offender against the laws of war than they have a right to interfere with and prevent a battle.” Was it really the defendants’ position that the military should give way to the civilian authorities in precisely the domain in which it was already seeking to exercise restraint? “It is curious,” Speed concluded, “to see one and the same mind justify the killing of thousands in battle because it is done according to the laws of war, and yet condemning that same law when, out of regard for justice and with the hope of saving life, it orders a military trial before the enemy are killed.” The implication of Speed’s and Bingham’s words was only too clear: If the defendants were right, the military would in the future resort to more traditional modes of military force, ones that would not be nearly as discriminating or restrained as those exercised by the commission.
Ultimately, Bingham and Holt could barely even understand the nature of the defendants’ objection. Had the defendants’ lawyers not noticed the hundreds of military tribunal prosecutions in which the United States had prosecuted rebels for violations of the laws of war over the previous four years? The work of the judge advocates had been to mobilize what the Union’s 1863 code and Justice Wayne’s opinion in the Vallandigham case had called “the common law of war.” By “what code or system of laws is the crime of ‘traitorously’ murdering” defined, Ewing demanded to know on behalf of the defendants. Holt’s reply was straight from the vigorous version of the customs and usages of war crafted by Lieber and issued by Lincoln at the nadir of the Union war effort:“the common law of war,” he answered. If there was any doubt whence Holt derived the authority for the charges, he dispelled it on June 8 when he offered into evidence for the prosecution a copy of General Orders No. 100, Lieber’s Instructions for the Government of Armies of the United States in the Field.
Holt’s arguments carried the day before the military commission. After deliberating for several days, the commission returned guilty verdicts for all eight defendants on June 30. President Johnson approved the commission’s findings on July 5. Arnold, O’Laughlin, and Mudd received terms of life imprisonment. The commission sentenced Spangler to six years at hard labor. But as for Atzerodt, Herold, Powell, and Surratt, the commission sentenced them to be hanged by the neck until dead. Two days later,Judge Andrew Wylie of the District of Columbia courts reluctantly acquiesced in the president’s refusal to recognize Mary Surratt’s emergency habeas petition. (Johnson insisted that the writ of habeas corpus was still suspended, but just in case it was not, he issued a special order suspending it for Surratt’s case in particular.) Within hours, Union military officials hanged Atzerodt, Herold, Powell, and Surratt from a newly built scaffold in the south yard of the Old Arsenal Penitentiary.
THE LINCOLN CONSPIRATOR trial raised serious questions about flaws in the military commission system and accordingly about the utility in the postwar world of the fierce version of the laws of war that Lincoln and Lieber had advanced in early 1863.
The military commission placed virtually no constraints on the scope of the conspiracy theory that Holt’s team proposed. A court would almost certainly have required that the judge advocates stick closer to the defendants in the dock. But lacking any such limit, Holt and his team exhausted themselves trying to connect Booth’s accomplices to the highest reaches of the Confederate government. Calling a shadowy network of informants as witnesses, they aimed to prove the existence of a nefarious plot reaching from the Confederate capital at Richmond to agents in Canada and back to Booth in Washington. The commission heard about surreptitious Confederate plots to burn the North’s major cities and destroy its ports. The prosecution presented evidence of efforts to destroy civilian steamboats and blow up the Union supply lines at City Point in Virginia by means of a new torpedo device. Witnesses testified to plots to burn New York City, to introduce infectious diseases in the North, and to starve captured Union soldiers at prison camps in the South. Holt’s team submitted testimony describing Confederate agents’ involvement in a raid on civilian property at St. Albans, Vermont, launched from across the Canadian border.
Most important, Holt relied on a man he introduced to the commission as Sanford Conover. Conover testified that he had worked as a Confederate agent in Canada under the alias James Watson Wallace and that he had there met with numerous Confederate agents (including some named as co-conspirators in the charges against Booth’s accomplices) to arrange “the plot to assassinate Mr. Lincoln and his cabinet.” Conover helped expand Holt’s case against the alleged accomplices into a wholesale attack on the war methods of the South. He testified to schemes to attack Union prison camps and release entire regiments of captive Confederate soldiers to plunder the interior of the Union. He described a plan to destroy the Croton Dam, which supplied New York City with its water. He detailed plans to set off a yellow fever epidemic by sending infected goods to the North’s most populous cities. Most of all, he connected the schemes to the highest levels of the Confederate government.
Holt’s reliance on Conover backfired even before the trial had come to a close. Conover, whose real name was Charles Dunham, was actually a con man. By mid-June, reports were circulating in the press to indicate that Conover had concocted a fantastic series of lies. A Canadian came forward to say that he was the real James Watson Wallace and that he had no knowledge of the conversations Conover claimed to describe. The Toronto Globe published evidence that Conover had simply made up his stories from whole cloth. The New York Times reported that the testimony that had “caused such a sensation” now “seem[ed] to be in a muddle.” In late June, John A. Dix, commander of the Union’s Department of the East, privately warned Holt that Conover was a notorious character. But blinded by his zeal to connect the Confederate hierarchy to the assassination and to an entire scheme of unlawful warfare, Holt plunged forward in reliance on his dubious witness nonetheless.
Holt’s team reached too far in its arguments about the law as well. Law of war commissions had become a basic part of the Union war effort. Yet Bingham in particular sought to use the trial to establish a breathtaking expansion in the scope of the military commissions. Arguing before the commission, he insisted that every single rebel soldier was implicated in the assassination, or at the very least in unlawful killings. “Everybody” who “entered into the rebellion,” he thundered, “entered into it to assassinate everybody that represented this Government.” Assassination and unlawful killing were the natural consequences of the rebellion; they were the very purpose for which men had joined the southern armies. Thomas Ewing grasped the implications. Why, he asked the commission, had the prosecution adopted such a novel position? It was for the same reason that Achilles immolated a dozen Trojans at the funeral pyre of Patroclus: “simply because they were Trojans, and because Patroclus had fallen by a Trojan hand.” Now Holt and Bingham were threatening to burn every rebel at the pyre. Indeed, Ewing warned, it could even prove to be worse. In his view, the eight people accused of being the accomplices of Booth were no more subject to military jurisdiction than any other American—unless, that is, military law extended over and embraced “all the people of the United States.”
EWING’S CLAIM WAS an exaggeration, but it was not as much of one as it has seemed in the years since. Though it has long been forgotten by historians, the men participating in the Lincoln conspiracy tribunal knew full well that dozens of war crimes trials were taking place all around the country in the waning days of the conflict and in its immediate aftermath. Many such trials took place far from the spotlight. Others, though a good deal less prominent than the prosecution of the Lincoln assassination conspirators, were nonetheless high-profile affairs.
In January 1865, a military commission in Cincinnati had attracted nationwide press attention when it tried and convicted a group of seven men, including a swashbuckling British mercenary named George St. Leger Grenfell, for conspiring in violation of the laws of war to set fire to Chicago and free the captured rebel soldiers held there at the Union’s Camp Douglas. The next month, one of Holt’s close associates, Judge Advocate John Bolles, led the closely watched prosecution of a well-connected young Virginian named John Yates Beall at Fort Lafayette in New York Harbor. A military commission convicted the handsome but impetuous Beall of unlawful attacks on vessels in the Great Lakes, attempted sabotage of civilian railroads in upstate New York, and being a spy.“It is a murder,” declared Beall as he mounted the scaffold and turned to face his beloved South. (Orville Browning would later wonder whether John Wilkes Booth had hoped to avenge Beall’s death when he entered Lincoln’s box at Ford’s Theatre a month and a half later.) At around the same time, Union officials in New York also tried, convicted, and executed a Confederate agent named Robert Kennedy on charges of violating the laws of war and spying in connection with a failed attempt to set a great fire in Manhattan. Little damage had been done, in part because Kennedy had been drunk the whole time. P. T. Barnum’s museum, which was one of Kennedy’s targets, had a wax figure of the dead Confederate saboteur on display less than a month after his execution.
Champ Ferguson in custody: pictured in front at center with an armed Union guard, Ferguson was one of the most feared southern guerrilla leaders. After the war he was tried and executed for war crimes, including the execution of captured black soldiers.
The end of open hostilities did little to slow the pace of the commissions, at least not at first. Even as Holt was overseeing the trial of Booth’s accomplices, his office presided over dozens of military commissions for violations of the laws of war. Commissions trying such violations moved forward in the Department of the Cumberland under Major General George H. Thomas; in the Department of the East under John Dix; in Virginia and North Carolina under Benjamin Butler; in the Department of the Gulf under Major General Stephen A. Hurlbut; and in Missouri under Major General Grenville Dodge. All through the summer in Nashville a military tribunal tried and convicted Champ Ferguson for unlawful guerrilla warfare and the systematic execution of black soldiers at Saltville, Virginia. Ferguson was executed in October. That same month, another commission in Wilmington, North Carolina, tried and convicted two men for the murder of a Union guide in violation of the laws and customs of war.
FAR AND AWAY the most prominent case tried in the wake of the Lincoln conspiracy trial was the prosecution of Captain Henry Wirz, the commander responsible for overseeing captured Union soldiers held at Andersonville, Georgia. It did almost as much damage to the reputation of military commissions as the worst excesses of the Lincoln assassination trial had done just weeks before.
When the first Union prisoners had arrived at the tiny hardscrabble town of Andersonville in southwestern Georgia in February 1864, they found a bleak seventeen-acre camp with no structures surrounded by an eighteen-foot stockade fence. A creek ran down the middle of the camp. Around the compound’s edges ran a “dead line” about twelve feet inside the stockade wall. Andersonville had been designed to hold 10,000 Union men, though given the absence of buildings it would not have held even that number comfortably. But over the course of the next year, the camp at Andersonville took in between 41,000 and 45,000 Union soldiers. As many as 32,899 prisoners resided inside the stockade at any one time. For six months in 1864 and early 1865, the press of prisoners turned the little town into the fifth most populous city in the South. Conditions were deplorable. The camp’s principal water source quickly became foul and polluted. Gangrene and disease ran rampant among the prisoners. Three quarters of the patientsadmitted to the camp hospital died. All told, more than a quarter of those who entered the stockade—some 12,912 men—never left.
In May 1865, Union officials arrested Wirz for his conduct as commander of the prison interior. Wirz seemed to be a comic book villain. With a thick accent and a temper made worse by a festering wound received in the Peninsula Campaign in May 1862 that had rendered his right arm almost completely useless, the Swiss-born Wirz was reviled by former prisoners and disliked by many of his own men as well. Lew Wallace, who served as president of the military commission that tried Wirz, described him as having the eyes of a cat “when the animal is excited by a scent of prey.” Wirz, Wallace decided, was “altogether well-chosen for his awful service in the Confederacy.”
Yet the trial got off to a bumpy start on August 21. When the judge advocate handling the case, Norton Parker Chipman, filed charges against Wirz that named Jefferson Davis, Robert E. Lee, and Confederate secretary of war James Seddon, an angry Stanton called a halt to the proceedings and demanded that Chipman redraft the charges to leave out the Confederate leadership. With Lieber’s help, Stanton was trying desperately to find evidence that would support Holt’s accusations at the trial of the Lincoln assassination conspirators by definitively linking Davis to the worst atrocities of the war. The last thing Stanton needed was for the Wirz prosecution to force his hand before he had found the evidence he needed. Nor did he want to create an occasion for bringing Davis to the capital.
The trial resumed three days later with new charges that left out Davis and the Confederate high command. But Wirz’s two lawyers both dropped out immediately. The lawyers who replaced them, Orrin Baker and Louis Schade, threatened to walk off the casethemselves when the tribunal frustrated their attempts to call certain witnesses on Wirz’s behalf. The judge advocate arrested James Duncan (Wirz’s subordinate at Andersonville) while Duncan waited to testify for the defense. And when Schade sought to call Robert Ould to testify to the Union’s responsibility for the collapse of the 1862 prisoner exchange cartel, Chipman chased him back to Virginia on the threat of arresting him for breaking the terms of his parole if he left his home state. A court reporter deliveredWirz’s closing statement when the tribunal refused to give Baker the two weeks he requested to prepare his final arguments.
Such procedural irregularities were bad enough, but the case prepared by Chipman and Holt was plagued by a deeper problem too, one that Chipman’s ill-advised initial charges had inadvertently betrayed. Chipman made heroic efforts to bring out testimony that would tie prison conditions at Andersonville to Confederate officials in Richmond. Doing so suggested a wide and nefarious conspiracy. But such efforts also cast doubt on Wirz’s personal responsibility for the prison conditions that had killed so many Union men. Multiple witnesses (some unreliable, others more credible) testified to instances of abuse by Wirz, including the shooting and beating of individual prisoners. But the real burden of the case was to charge Wirz with responsibility not for isolated incidents of brutality, but for the deaths of thousands. And here the evidence was far less clear. Wirz, it came out, had sought on more than one occasion to bring the miserable conditions at his camp to the attention of Richmond officials. He made plans to improve the camp bakery and petitioned Richmond for improved rations. He enlarged the space enclosed in the stockade. And he looked into relocating the hospital to cleaner, less crowded space outside the stockade altogether. Wirz also put together a plan to create an elaborate series of dams and floodgates to improve the water quality at the camp and began work on the project, though it was never completed.
Wirz doubtless could have done more. He failed to carry out most of his plans to improve conditions, and his notoriously erratic temper made life worse for many of the men under his care. But the evidence brought out in the tribunal also made clear that he had possessed little control over the resources his superiors provided to the prisoners. Wirz’s lawyers argued that he was merely “a servant and instrument in the hands of the Southern authorities.” The Swiss consul-general remonstrated on Wirz’s behalf with President Johnson, conceding that Wirz was “detestable,” but arguing that he had been the “tool of monsters in human form.” “Shall the hand suffer,” he asked, “for the arm that wielded it, for the soul and mind that controlled its ultimatum of crime?” As the proceedings unfolded, it came to seem that Confederate brigadier general John Winder—who had established the prison, presided over the selection of its site, and overseen all Confederate prisons from November 1864 onward—would have been a far better target for the Union’s ire. One witness testified that Winder had planned to improve conditions by a horrible attrition; he would leave the prisoners “in their present condition until their number has been sufficiently reduced by death to make the present arrangements suffice for their accommodation.” Even Winder objected to the quality and size of the prisoners’ rations and wrote Richmond seeking improvements. But his responsibility for prison conditions seemed far clearer than Wirz’s. If he had not died of a heart attack while inspecting a South Carolina prison in February 1865, he surely would have been on trial alongside his German-speaking subordinate.
The Wirz prosecution also threatened to raise embarrassing questions for the Union. Conditions at some prisons in the North, and especially the notorious prison at Elmira, New York, had been almost as bad as those at Andersonville. Death rates in northern camps rivaled those in the South, and northern officials bore their share of the responsibility for conditions that led to the unnecessary deaths of Confederate soldiers.16 Prisoner of war camps on both sides had simply never caught up to the massive organizational task of maintaining populations of thousands and even tens of thousands of men.
In particular, Wirz and his defense lawyers worked to turn attention back on Union authorities’ unpopular refusal to engage in prisoner exchanges after the summer of 1863. That was why they had called Robert Ould (the Confederate agent for exchange) to testify, and it is almost certainly why the judge advocates chased Ould back to Virginia on the threat of arresting him for breaking his parole. Even so, the defense’s cross-examination of government witnesses directed attention to the question of prisoner exchanges and the collapse of the exchange cartel. And in his closing statement, Wirz did so again, urging on the commission his view of “where the responsibility rested for non-exchange of prisoners of war.”
None of these difficulties affected the outcome of the case. Enough witnesses, including Confederate and Union veterans alike, testified to brutal acts by Wirz that his responsibility for atrocities at Andersonville was well established. With characteristic fury, Holt described the trial as giving the picture of Wirz “rather as a demon than a man.” In late October, the commission returned verdicts of guilty on the charges of murder and conspiring against Union prisoners in violation of the laws of war. It sentenced Wirz to death. On November 10, Wirz was hanged at the Old Capitol Prison, the site where John Marshall’s fellow justices had stayed while deliberating over prize cases a half century before and where in 1819 Congress had debated Andrew Jackson’s conduct in Florida. Wirz’s body was interred next to the Lincoln conspirator Atzerodt in the Old Arsenal Penitentiary.
CONVICTIONS IN THE Lincoln assassination case and the Wirz prosecution distracted the single-minded Joseph Holt from difficulties that his military commissions were fast running into. Rather than being chastened, Holt began to plan on expanding the use of military commissions to try the Confederate officers whose names came up during the Wirz proceedings.
Yet the difficulties that arose in the two most prominent trials of the summer and fall of 1865 showed up in less closely watched prosecutions as well. At Beall’s trial in February, James T. Brady, the prominent trial lawyer, had accused the Union of hypocrisy.“Where do you make the distinction,” he wondered
between the march of Major-General Sherman through the enemy’s country, carrying ravage and desolation everywhere, destroying the most peaceable and lawful industry, mills and machinery, and everything of that nature; where do you draw the line between his march through Georgia and an expedition of twenty men acting under commission who get into any of the States we claim to be in the Union, and commit depredations there?
In retrospect, even the Lincoln assassination case seemed troubled. What, after all, was assassination? Why was killing the commander in chief of the Union armies unlawful while killing a conscripted private on the battlefield was not? It was not that there were no answers to these questions. Booth had acted without a uniform or any other distinguishing mark to set himself off as a combatant. So, too, with John Yates Beall on the Great Lakes, Robert Kennedy in New York City, and George St. Leger Grenfell in Chicago—all had engaged in a kind of violence that threatened to undo the distinction between soldiers and noncombatants. But the differences were subtle ones, the categories new and unfamiliar to combatants and lawyers alike.
Sure enough, as Wirz’s trial was getting underway, a military commission trial of guerrillas in Texas resulted in the acquittal of all the defendants. In December 1865, a commission in the Department of North Carolina concluded that it lacked jurisdiction to prosecute Confederate general George Pickett (of Pickett’s Charge fame at Gettysburg) for executing twenty-two North Carolinians captured while serving in the Union Army after deserting from Confederate service. Holt was infuriated (Lieber was too), but he dropped the case after a second tribunal could not find enough evidence to show that the executed men had been entitled to prisoner of war treatment. (It did not harm Pickett’s prospects that Ulysses S. Grant intervened on his old friend’s behalf.) A January 1866 commission acquitted Confederate general Hugh W. Mercer of charges that he murdered seven captured Union soldiers near Savannah in 1864. In June, a military commission trial in Raleigh of Major John H. Gee, the prison commandant at the smaller Salisbury camp in North Carolina, resulted in yet another acquittal. By some measures, conditions at Salisbury had been worse even than those at Andersonville; Union prisoners died faster there than at any other southern prison. Yet the commission vindicated Gee against charges of abusing and murdering prisoners in violation of the laws of war. After James Duncan was arrested in the Wirz commission courtroom, a commission in Savannah managed to convict him of manslaughter and violation of the laws of war for his gross abuse of Union prisoners while serving as the quartermaster at Andersonville. But the commission split on the sentence and could not agree on more than fifteen years’ imprisonment at hard labor. When Duncan escaped a year later, no one seems to have looked very hard for him. For the next thirty years he lived more or less openly with his wife in Pennsylvania.
As actual hostilities receded into the past, problems for the military commissions grew still more acute. The simple fact of the war having come to a close created difficulties. Grant insisted that Confederate soldiers covered by the surrender agreements of April 1865—including controversial partisans such as John Singleton Mosby—were immune from prosecution under the terms of their paroles. Holt maintained otherwise. His commissions had proceeded in the face of such objections in the past; Wirz’s lawyers had made the same argument. But now Grant successfully prevented the trial of Harvard Law School graduate Bradley T. Johnson, one of two Confederate brigadier generals in command at the burning of Chambersburg, Pennsylvania, in 1864. Johnson had also served as the commander of the grim prison camp at Salisbury, North Carolina, in the final months of the war. Nonetheless, Grant insisted that “the terms of the parole given by officers and soldiers . . . exempt them from trial for acts of legal warfare.” Moreover, when President Johnson announced the formal end of the insurrection in all states other than Texas on April 2, 1866 (Texas followed on August 20), many doubted that the authority of the military commissions would continue at all.
Most of all, the commissions seemed not to be targeting the leaders of the Confederacy, but to be scapegoating its minor players. Republican congressman James G. Blaine (later secretary of state under Presidents James Garfield and Chester Arthur) said at the time that prosecuting Wirz “seemed like skipping over the president, superintendant, and board of directors in a great railroad accident and hanging the brakeman on the rear car.” John Gee’s lawyers made the same objection, and the commission that tried him agreed; its report concluded that it could attach “no responsibility” to Gee “other than his weakness in retaining a position when unable to carry out the dictates of humanity.”
Yet for all the difficulties the commissions faced, Holt’s severe temperament and stubborn personality prevented him from understanding that public opinion was shifting the ground beneath his feet. Nowhere was the seismic shift clearer than in the debates that raged in the Congress over Reconstruction and the condition of the former slaves.