The Surratt Cause Celebre. choose to here appear? Moreover where is your authority to demand the oath? I have taken this same oath in many courts. It would be very singular if one who has a right " — repeating it — "a right to appear before the supreme judicial tribunal of the land, and a right to appear before one of the legislative departments of the Government whose laws create courts-martial, should not have a right — a right to appear here in any event." To this manly and eloquent defiance the President (General Hunter) replied with some irritation of manner and rather un judicially: " I had hoped the day had passed when freemen from the North were to be bullied by humbug chivalry, but for my own part I hold myself personally re sponsible for everything I do here." General Lew Wallace, with that kindness of tone that now appears on every page of his almost matchless romance, " Ben Hur," became peacemaker, and remarked that inasmuch as Mr. Johnson had already taken this oath as a senatorial move, its readministration be dis pensed with. But Mr. Johnson never took an active part in the defense, having many previous engagements, but he was active in consultations. He however prepared an argument against the jurisdiction of the tri bunal to arraign Mrs. Surratt, because she was a civilian and entitled to a hearing by grand and petit juries in a civil court. Great use was made of this consummate argument during the ensuing winter in briefs by Messrs. Garfield, Jeremiah S. Black, and Dudley Field, in the Milligan case. Mr. Johnson, however, drew a plea to the jurisdiction for Mrs. Surratt, and demanded a separate trial. To which the Judge-Advocate took the usual objection that such separate trial was not a right in a conspiracy case, and there was no differentiation of her from her associates — under the charges or evidence — the act of any one conspirator, when the conspiracy is established, being the act of all. An unprecedented incident on a criminal trial was noticeable throughout it in the
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shackling of the accused while seated with counsel. Many years afterwards, when the incident came into a Congressional discus sion, General Holt denied that Mrs. Surratt was shackled. The legal profession may recall that the custom for a prisoner or ac cused to hold up his right hand on his ar raignment for plea, was originally instituted in England to show the court that he was no longer handcuffed, as was once a prac tice in the days when accused were not allowed counsel. But many witnesses claimed that Mrs. Surratt, although freed from hand cuffs, had steel anklets on. It is certain that during the hearings all the others were both handcuffed and fettered at the legs so as to hamper walking. Two, Payne and Atzerodt, had attached to their leg-chains iron balls which the guards who escorted them were compelled to lift up when entrance and exit was made to and from the trial room. But it must be remembered that at this time Washington, and indeed much of the North, was in tremors of excitement; and allowance in 1895 must be made for 1865. No lawyer of experience in criminal juris prudence can now read the testimony' for the prosecution taken before the Commission without arriving at the conclusion that, if it had been offered in calm times before a learned court, the great bulk of it would have been excluded either on the ground of incompetency or irrelevance — and mainly on the latter ground. The Military Commission seemed to be not only ascertaining guilt for purposes of public example, but also educa ting public sentiment of the North as to alleged complicity of Confederate officials with the assassination. Of the unarraigned conspirators named in the charges, only Jefferson Davis and Clement C. Clay were within Federal jurisdiction, and they could have been brought before the Commission for trial had the Judge-Advocate so desired. One hundred and forty-seven witnesses were presented by the prosecution, and about sixty of these directed testimony toward the
