Gen. Henry L. Burnett's Memories of the Lincoln Assassination Trial

Assassination of President Lincoln
And the Trial of the Assassins
Brigadier-General Henry Lawrence Burnett

The Trial and Its Aftermath

A Lawyer/Soldier Called To Serve
Colonel Burnett, Mood of the Time, Deathbed

What Was Known
Investigation, Assassination, Seward's Attack, Other Attempts
The Investigation
First Steps, Military Court

The Conspiracy
Planning, 14 April 1865, The Escape

The Search Tightens
Cornered, Garrett's Barn
The Trial and Its Aftermath
The Sentences, Habeas Corpus, Gen. Hancock, Mrs Surratt,
An Inhuman Crime?, Pres. Johnson and Gen. Holt, Military or Civil
Lincoln
A Man for the Ages, Lincoln Links, Lincoln Books, Newspaper Accounts
Assassination Microfilm
Brig.Gen. Henry L. Burnett

The Trial and Its Aftermath
THE SENTENCES

Azerodt Herold Payne

The trial of the accused occupied the commission from the 10th day of May to the 30th day of June inclusive, and resulted in the conviction of Herold, Atzerodt, Payne and Mrs. Surratt, and their sentence to be hanged at such time and place as the President might direct; and the conviction of O'Laughlin, Spangler, Arnold and Mudd, and the sentence of all except Spangler to imprisonment at hard labor for life.
On July 5, 1865, these sentences were approved by President Johnson and the sentences of Herold, Atzerodt, Payne and Mrs Surratt were ordered to be carried into effect on the 7th of the same month, between the hours of ten o'clock AM and two o'clock PM.
HABEAS CORPUS
On the morning of the 7th, a writ of habeas corpus issued by Justice Wylie, of the Supreme Court of the District of Columbia, was served upon General Hancock, commanding him to produce before his Honor the body of Mrs Surratt. Justice Wylie signed the order for the issuance of the writ at ten o'clock in the morning, and at half past eleven, General Hancock appeared in person, accompanied by Attorney General Speed, before his Honor and submitted the following return:
"I hereby acknowlege the service of the writ hereto attached and return the same, and respectfully say that the body of Mary E. Surratt is in my possession, under and by virtue of an order of Andrew Johnson, President of the United States and Commander of the Army and Navy, for the purpose in said order expressed, a copy of which is hereto attached &c., and that I do not produce said body by reason of the order of the President of the United States, indorsed upon said writ, to which reference is hereby respectfully made."

The President's endorsement was:
"I, Andrew Johnson, President of the United States, do hereby declare that the writ of habeas corpus has been heretofore suspended in such cases as this, and I do hereby especially suspend this writ and direct that you proceed to execute the order heretofore suspended in such cases as this, and I do hereby especially suspend this writ and direct that you proceed to execute the order heretofore given upon the judgement of the military commission,and you will then give this order in return to the writ."

The court ruled that it yielded to the suspension of the writ of habeas corpus by the President, and the sentences were duly carried into execution.

NY Times Account of Execution
For the trial, and especially for the trial and execution of Mrs Surratt, that portion of the Press and the persons in sympathy with the late rebellion, indulged in most bitter denunciations of the Court; the Judge Advocates, General Marranfe, who was in immediate command of the detail leaving the prisoners in charge, and who carried into execution the sentence of the court; and of General Hancock who was in command of the military forces in and around Washington. No falsehood was too extravagant to be imagined, stated and believed. As an illustration of this, I remember once in pausing along a street in Cincinnati, when a lady beside whom was standing one of these rebel sympathizers honored me with a bow and a pleasant smile. The gentleman turned to her and said, "Do you know who that is your have just bowed to?" "Oh, yes, very well", she said, "Well, do you know that he hung Mrs Surratt with his own hand, and smile as he came down from the scaffold?"
The fact being that I never saw one of the accused after the close of the trial on the 30th of June and that I left Washington soon after the close of the trial, I think on the 5th of July.
But as illustrating still further the malicious representations that followed this trial, let me recall to your minds the letter of Mrs Jane Swisshelm, published in the New York Tribune of September 16th, 1873. In this letter she gives the impression that Mrs Surratt was manacled in court during her trial, and vividly pictures how on one occasion she (Mrs Swisshelm) was present in the court, and gave public exhibition of her suffering and indignation at this outrage and cruelty. The Washington Chronicle, noticing this letter of Mrs Swisshelm, addressed a note to Mrs Surratt's counsel, Mr Aiken, making inquiry as to the fact. He replied as follows:
"I have your letter of this date, inclosing the letter of Jane G. Swisshelm, published in the Tribune, the 16th inst. and asking me, 'Is her statement true that Mrs Surratt was manacled during her trial?' Without reference to any other fact, or to any of the details of the case of that most unfortunate lady, I have to say in reply that at no time during her unlawful trial was Mrs Surratt manacled, either on her wrists or her ankles, while in the presence of the court. I not only speak from my own absolute knowledge, but from recollections of Mrs Surratt's oft-repeated statements to me that she was not manacled."

The Chronicle adds, "Now can any fair-minded person, however prejudiced, come to any other conclusion than that the garrulous lady had willfully and maliciously misrepresented the facts, for the mere purpose of glorifying herself?"
I must agree with this conclusion because I know personally that Mrs Surratt was not manacled, and that no such scene as Mrs Swisshelm described ever took place in the courtroom. But this letter of Mrs Surratt's counsel did not put underground the falsehood that she was manacled during her trial -- periodically it reappears, fresh and vigorous.
GEN. HANCOCK'S REPUTATION
General Hancock was especially denounced because he was obedient to the order of the President -- the Commander-in-Chief of the Army under the Constitution -- and had failed to deliver Mrs Surratt over to the custody of the Court under the habeas corpus proceedings. His rivals and enemies made most unscrupulous use of this weapon against him as soon as he became prominently talked of as democratic candidate for President in 1880.
In 1871, one of the leading papers of St. Louis said, "Quite a number of the Federal officers, dissatisfied with the political character and partisan purposes of the late war, resigned their positions in the army at one time or antoher. Some of them felt that the 'Union' had somehow come to be a secondary consideration in the fight: others, that it was a merely partisan struggle for the ascendency: but General Hancock, the favorite of a few Western Democrats as a candidate for President, seems to have detected none of these objections. He did his duty like a stolid serving-man through the war. When at New Orleans, he issued an order that made his great capital among the Southern people; and, when at the North, he distinguished himself equally as a Federal zealot.
"It was General Hancock, then in command of the Middle Military Division of Washington, who declined to interfere with the order of the court-martial sentencing Mrs Surratt to death. It was he who became party to one of the most inhuman crimes ever perpetrated in the name of justice."
This sort of criticism and abuse embittered many an hour of General Hancock's life up to the day of his death. General Hancock, as we all know who knew him well, in his personal relations with his fellow-men was as kindly and gentle as a child; was a man with the highest ideals and rules of conduct, and as a soldier was as brave and knightly as ever buckled sword.
Of a peculiarly proud and sensitive disposition, any word which assailed either his personal honor or his record as a soldier tortured him like a festering wound.
He talked with me several times about these attacks which had been made upon him, and in 1873 I determined to write an article reviewing some of the incidents of the trial of the assassins and General Hancock's relation to it. This purpose I made known to him; and he then informed me that an article had been prepared by some friend of his upon the subject, and if I wished he would have it sent to me, and I could make such use of it in the preparation of my article as I wished. It was subsequently sent to me, and I still have it in my possession. About the same time I received from him the following note:
New York, October 1, 1873
My dear General:
General Mitchell has the paper I spoke to you of. It reached me this A.M. If you will notify General M. (W.G. Mitchell) where to send it and when, he will send it by messenger to you.
The latter part of the paper contains the matter I particularly desire you to see, although it might be well for you to read the whole. You are at liberty to use any part of it verbatim ornil. It was not printed. I should be pleased if you would preserve the paper for me.
I leave for St. Louis this P.M. The only true plan is to meet and crush out this Surratt matter, not to "dally it" -- as this paper, for example. It is about my idea of meeting the question.
Yours truly,
Winfield S. Hancock
To General Burnett, N.Y.

AN INHUMAN CRIME?
This paper is too long to present here, but I will give only a few extracts showing General Hancock's views of his relation to the habeas corpus episode and Mrs. Surratt's connection with the conspiracy. I quote from the paper as follows:
"On the 7th day of July, 1865, the day of the execution, the Honorable Andrew Wylie, a Judge of the Supreme Court of the District of Columbia, issued a writ of habeas corpus directed to General Hancock, commanding him to produce the body of Mary E. Surratt in court. Thereupon Andrew Johnson, as president of the United states, and as such superior in authority to General Hancock, assumed the responsibility of suspending the writ of habeas corpus and setting aside the order of the judge. The president's order was in these words and was indorsed on the writ of habeas corpus. (Here is given the President's order, as given above.)
"Nevertheless, General Hancock deemed it his duty to appear before Judge Wylie and submit himself to the judgment of the civil court. Having appeared before the civil court, General Hancock filed the following statement in writing, in obedience to the command of the writ of habeas corpus, setting out the return above.
"Judge Wylie said: 'The Court finds itself powerless to take any further action in the premises, and therefore declines to make an order, which would be vain for any practical purpose. As regards the delay, it having been fully accounted for, the Court has no fault to attach to the respondent (General Hancock) in that respect.' ...
"Against such a record as this nothing but inveterate malice would prefer a censure against General Hancock. The conduct of General Hancock was not only dutiful and obedient to the civil authority, but much as to manifest for that authority profound respect and reverence.
"It was not necessary he should appear in person before the Court. He went, however, laid aside the sword, and submitted himself to its judgment. He could have assumed an air of defiance. He could have spurned the puny power of the civil magistrate, who had presumed to send his mandate to a military commander of a hundred thousand soldiers. But no, he deemed it an imperative duty to submit himself personally to the authority and jurisdiction of the Court.
"If General Hancock was responsible for the non-production of the body of Mrs Surratt, the Court was armed with jurisdiction to fine and imprison him for the dereliction of duty, and for a contempt of the authority of the Court.
"But the Court did neither. Judge Wylie dismissed the General from his court without punishment and without censure; assigning the failure of the writ, not to an act of General Hancock, but to an act of the President. ... The suggestion that General Hancock should have resigned is simply silly. His resignation could have no tendency to bring the body of Mrs Surratt into court or to prevent her execution.
"It has been a common thing for those who, from political partianship or personal malice, have been most violent in their clamor against General Hancock in this connection, to omit all mention of the other parties who suffered with Mrs Surratt. It would seem as if, in their opinion, no inhuman crime was perpetrated in the execution of Herold, Atzerodt, or Payne. The reason for this is plain enough. There is always sympathy for a woman. And it is supposed that much will be conceded for her which could not be asked in the case of another person.
"It is quite immaterial to our present purpose whether Mrs Surratt was innocent or guilty of the crime for which she suffered, since General Hancock was in no wise responsible for it. But when she is pronounced perfectly innocent and her execution 'an inhuman murder' committed by nine respectable officers of the army, and by the approbation of the President, without evidence of guilt, it is not amiss to state the simple facts of her case.
"That nine men of ordinary respectable character in the Federal army, colonels, brigadiers, and major-generals, should have been so lost to all sense of duty and humanity, so ineffably brutal, as to sentence a woman to death for nothing, is a very strong proposition.
THE EVIDENCE AGAINST MRS SURRATT
"Anyone who looks into the evidence will find out that for some weeks before the assassination, Mrs Surratt was holding frequent private interviews with Wilkes Booth; and was also on terms of intimate communication in her own house with Lewis Payne, alias Wood, alias Powell, who attempted the life of Mr Seward. Some weeks before the assassination, John H. Surratt, David E. Herold, and George A. Atzerodt left at the house of a Mr Floyd, near Washington, two carbines, ammunition, and a rope sixteen to twenty feet long, which were laid away under a joist until they should be wanted.
"On the Monday preceding the assassination, Mrs Surratt came to Floyd's house and inquired about the 'shooting irons', and told Floyd 'they would be wanted soon.' On the very day of the assassination, Mrs Surratt was at Floyd's house again and told him 'to have the shooting-irons ready for that night.' She then gave Mr Floyd a field-glass and asked him to have all the things ready, with two bottles of whiskey, for the parties who would call for them in the night, and left."
"True to her prediction, at about a quarter past twelve o'clock the same night, Booth and Herold came to Floyd's and called for the carbines, field-glass and whiskey, which Floyd delivered to them according to Mrs Surratt's directions. Herold took his carbine, but Booth was unable to carry his, having a broken leg, and so left it behind. The assassins were at Floyd's house about five minutes. Booth said, as they rode off: 'I will tell you some news. I am pretty certain we have assassinated the President and Secretary Seward.'
About midnight on the 17th of April 1865, the third day after the assassination, Payne, who till then had secreted himself, came disguised to Mrs Surratt's house and was arrested by soldiers then in possession of it. He said Mrs Surratt had sent for him to dig a ditch.
Mrs Surratt, though she knew him well, denied she ever saw him. Her words were, 'Before God, I do not know this man, and have never seen him.'
"It is not for us to pass upon the guilt of Mrs Surratt. We would prefer to behold her pure and stainless, 'as the angels in heaven.'
"But whomever indulges in wide-mouthed proclamations, or pronounces her conviction 'an inhuman crime', unsupported by evidence, betrays an animus, to say the least, not overcareful of the truth. The same malevolent animus which, in defiance of all truth, calls General Hanock her murderer, also denounces him for having been a Union solder, and for not resigning his commission, and for all the gallant service he has rendered to his country.
"'Cease, viper: you bite a file!'"
Of General Hanock's connection with the trial and the habeas corpus proceedings, in an interview published in the New York World, August 5, 1880, after his nomination for the presidency by the Democratic party, although I was a Republican and voted against him, I took occasion to say:
"I do not think that anybody who ever examined the case fairly could impute the least blame to General Hancock. I think from first to last he only performed what was his strict military duty." After citing the record: "Thus you see that General Hancock fully respected the writ of habeas corpus and made a proper and respectful return to it, pleading a higher authority for not obeying it by producing the body of Mrs Surratt... Any attempt to cast blame on General Hancock for his action in connection with these events I feel confident must fail. He simply performed his duty like a good soldier."
MILITARY OR CIVIL
This paper is too long to present here, but I will give only a few extracts showing General Hancock's views of his relation to the habeas corpus episode and Mrs. Surratt's connection with the conspiracy. I quote from the paper as follows:
"After the nomination of General Hancock for the presidency in 1880 by the Democratic party, at the request of the editor of the North American Review, Mr Speed, Mr Lincoln's Attorney-General, prepared a paper for that periodical on the trial of Mrs Surratt. In that article, among other things, in speaking of the military commission and the fairness of her trial, he said:
"The military commission which tried the assassins of the President was carefully selected. It was composed of men taught by experience and habit to maintain coolness and equanimity in thr midst of the most exciting scenes. If it was possible at that period and at that place to have secured a fair trial, the method adopted was the most certain to secure it. That commission certainly had no desire to wantonly and recklessly inflict punishment upon a woman. It patiently investigated the case. If Mrs Surratt had not been guilty -- if there had been any reasonable doubt of her guilt -- she would have been acquitted, as some of the other accused persons were.
"The Government never showed any disposition to deal severely with any of those guilty of crimes connected with the rebellion. Its military power was exercised mildly and humanely. It was only in a few instances of absolutely hideous crimes that the perpetrators suffered the extreme penalty.
"There is no ground for the complaint that the military court was harsh, or unjust, or cruel. There is every ground for the conclusion that it did its duty with judicial calmness and perfect conscientious impartiality. It found the proofs of guilt clear and incontestable, and rendered judgment accordingly... There was an additional guarantee of fairness of the proceedings against the assassins of the President in the fact that General Hancock, a disciplined, trained and accomplished soldier, was in command at Washington at the time. His calmness and equipose in the midst of excitement, cultivated by familiarity with scenes of carnage in the whirlwind of scores of terrific conflicts, would naturally inspire calmness in others.
"Had the assassins been turned over to the civil courts for trial, the result would doubtless have been the same; and, in that case, we would have heard a more just complaint, perhaps, that instead of a trial by an impartial military tribunal, they were remanded to the mercies of an angry and revengeful mob of passionate civilians, from whom it was impossible to obtain a fair jury."
This was the calm judgement on this trial and the justice of Mrs Surratt's conviction of one of the purest of men -- one of the ablest lawyers of his time -- after the thought and reflection of fifteen years.
PRESIDENT JOHNSON AND JUDGE HOLT
I have given briefly the circumstances connected with the assassination and the trial of the assassins, and the criticisms of those opposed to the Government in relation tot he trial the execution of Mrs Surratt, but these criticisms did not end the matter. There was attached to the record of the evidence, when it was transmitted to the office of the Judge Advocate General of the Army, to be transmitted to the President for his approval, a recomendation to mercy as to Mrs Surratt signed by five of the nine members of the court. While Mr Johnson was still President a charge had circulation through the public press that Mr Johnson never saw this recommendation of mercy, that it had been suppressed by the Judge Advocate General Judge Holt, Mr Johnson himself never openly made the charge until after his term had expired, and sometime in 1873.
No graver charge could be made against a public officer than this against Judge Holt and, if true, no more cruel and treacherous betrayal of a public trust was ever committed by a man in high official position. It would be murderous in intent and effect. This charge rested, so far as human testimony went, upon the solemn assertion alone of President Johnson and, if untrue, was one of the most cruel wrongs ever perpetrated by one man against another.
This controversy was heated and active for many years, and in a paper read several years ago before the Commandary of the Loyal Legion of New York, I have reviewed all the testimony bearing upon the question and, given my personal connection with the affair, and I do not propose now to go into the matter, I came to the conclusion without any doubt that the charge made by Andrew Johnson was absolutely false.
CONTINUE

A Lawyer/Soldier Called To Serve
Colonel Burnett, Mood of the Time, Deathbed

What Was Known
Investigation, Assassination, Seward's Attack, Other Attempts
The Investigation
First Steps, Military Court

The Conspiracy
Planning, 14 April 1865, The Escape

The Search Tightens
Cornered, Garrett's Barn
The Trial and Its Aftermath
The Sentences, Habeas Corpus, Gen. Hancock, Mrs Surratt,
An Inhuman Crime?, Pres. Johnson and Gen. Holt, Military or Civil
Lincoln
A Man for the Ages, Lincoln Links, Lincoln Books, Newspaper Accounts
Assassination Microfilm
Brig.Gen. Henry L. Burnett

Map to Gen. Burnett Pages

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NJ Governor
Lewis Morris

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Night Before Xmas
Henry Livingston

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Bradley Van Deusen

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Jean Van Deusen

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Copyright © 1998, Mary S. Van Deusen