May 6, 1865: Executive Order Establishes Military Commission to Try Conspirators

Lincoln Miliary Tribunal


One hundred and fifty years ago an executive order establishing the military commission to try the accused Lincoln conspirators was issued.  There was some newspaper opposition to not according the alleged conspirators a civil trial, but by and large a military tribunal met with approval throughout the North.  As Commander-in-Chief in time of war it was argued that the murder of Lincoln was a military offense.  Additionally it was pointed out that passions were running so high in the weeks after the assassination that empaneling an unbiased civil jury would have been impossible.   Since the Confederacy was defeated, I can see little justification for trying civilians before a military tribunal in time of peace.  Edward Bates, former Attorney General under Lincoln, and Gideon Welles, Secretary of the Navy, criticized the use of a military tribunal instead having the accused conspirators tried in a civilian court.   Here is the text of the order:





 A military commission is hereby appointed to meet at Washington, D.C., on Monday, the 8th day of May, 1865, at 9 o’clock a. m., or as soon thereafter as practicable, for the trial of David E. Herold, George A. Atzerodt, Lewis Payne, Michael O’Laughlin, Edward Spangler, Samuel Arnold, Mary E. Surratt, Samuel A. Mudd, and such other prisoners as may be brought before it, implicated in the murder of the late President, Abraham Lincoln, and the attempted assassination of the Hon. William H. Seward, Secretary of State, and in an alleged conspiracy to assassinate other officers of the Federal Government at Washington City, and their alders and abettors.

Detail for the court.

Major-General David Hunter, United States Volunteers.

Major-General Lewis Wallace, United States Volunteers.

Brevet Major-General August V. Kautz, United States Volunteers.

Brigadier-General Albion P. Howe, United States Volunteers.

Brigadier-General Robert S. Foster, United States Volunteers.

Brevet Brigadier-General Cyrus B. Comstock,* United States Volunteers.

Brigadier-General T. M. Harris, United States Volunteers.

Brevet Colonel Horace Porter,+ aid-de-camp.

Lieutenant-Colonel David R. Clendenin, Eighth Illinois Cavalry.

Brigadier-General Joseph Holt, Judge-Advocate-General, United States Army, is appointed the judge-advocate and recorder of the commission, to be aided by such assistant or special judge-advocate as he may designate.

The commission will sit without regard to hours.

By order of the President of the United States:


Assistant Adjutant-General.

*Brevet Brigadier-General James A. Ekin substituted;

+Brevet Colonel C. H. Tompkins substituted; see Special Orders, No. 210

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  1. Then, like now, there was a desire to appease the angry crowd. A military tribunal would do that more surely and swiftly than a civilian trial. Besides, they wanted to kill or incarcerate some suspects against whom they did not have particularly good evidence. Again, easier to accomplish with a quick military proceeding (I won’t call it a trial).

  2. They had excellent evidence against all the suspects with the possible exception of Mrs. Surratt. The trial ran from May 9 to June 28, a marathon trial by the standards of the day, and the evidence presented by the prosecution was absolutely damning to all the defendants, except for Mrs. Surratt. That she knew of the conspiracy and aided it I have no doubt, but her participation was so minimal that I would probably have voted not guilty in regard to her.

  3. The case against this guy was flimsy:, certainly not worthy of the death penalty he received.

    Mary Surratt, of course, was railroaded and executed.

    Samuel Mudd was certainly not clearly guilty: That source also mentions an interesting fact of local interest to me: “In 1993 a mock trial was held at the University of Richmond. One of the defense attorneys was none other than F. Lee Bailey. The judges hearing the case (one of which was a member of the State Supreme Court of South Carolina) stated that Dr. Mudd’s conviction had been a flagrant violation of the United States Constitution.”

    Of course, like so much of the federal war effort, it was indeed unconstitutional: the defendants were civilians; the war was effectively over; the tribunal rules allowed for conviction by majority, not unanimous vote, and allowed for the death sentence by 2/3 vote. All kinds of irrelevant and inflammatory “evidence” was presented about the Confederate government’s spying and sabotage efforts (termed “terrorism” by the prosecution), despite no link between the assassination and the Confederate government.

    Worst perhaps, the Commission forbade the defendants from testifying on their own behalf; only about 3 or 4 weeks passed from arrest to trial, in no way an adequate time to prepare defenses; and the government presented perjured testimony and suppressed exculpatory information.

    In 1867, John Surratt, one of the conspirators, was caught (serving a papal Zouave) and tried before a civil jury using the same evidence the Commission heard… and not convicted. Commenting on this, the NY TImes said:

    When, therefore, the Government availing itself of the existing state of war, cited the criminals before a Military Commission, which, while respecting their rights, refused all delays and brushed aside the fictions and technicalities usual and useful in common cases, letting in any ray of light from any quarter upon motives and persons, and scanning the widest range of circumstances, most candid persons agreed that a case transcending all experiences was rightly tried in modes as extraordinary…. John H. Surratt was called to his account in a calmer state of the public mind, after time had appeased its righteous anger and the passion for retribution had been allayed.

    In other words, as another Northern paper, the New York World concluded, “It is clear, therefore, that Mrs. Surratt and the others … were murdered.”

    Surely Booth and probably two others were certainly guilty. The others, not so much, which is likely why Johnson pardoned 3 of them within a couple of years.

  4. George Atzerodt was in the conspiracy up to his neck as his confession indicated. Although not admitted into evidence at his trial it merely stated what other witnesses testified to:

    “Mary Surratt, of course, was railroaded and executed.”

    No, the facts indicate that she was involved in the conspiracy. I would not have voted to execute her because of her involvement was peripheral.

    “Samuel Mudd was certainly not clearly guilty.”

    Nope, Mudd lied about having met Booth only when he set his broken leg. He met Booth in November and twice in December in 1864. George Atzerodt’s confession indicates that Booth sent supplies and liquor to Mudd’s house prior to the assassination.

    “In 1867, John Surratt, one of the conspirators, was caught (serving a papal Zouave) and tried before a civil jury using the same evidence the Commission heard… and not convicted.”

    He was tried in Maryland, and a mistrial resulted with eight jurors voting not guilty and four jurors voting guilty. In Maryland in 1867 I doubt if the Feds could have gotten a guilty verdict if Surratt had come into court admitting his involvement in the plot.

    “In other words, as another Northern paper, the New York World concluded, “It is clear, therefore, that Mrs. Surratt and the others … were murdered.””

    The New York World was a bitterly anti-Lincoln rag and their opinion of the guilt of the conspirators was as worthless as their opinion of Lincoln.

    The Military Commission’s rules unfairly hampered the Defendants, especially in not allowing them to testify on their own behalf, but I have no doubt that the guilty verdicts were factually correct.

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