Third George S. Prugh Lecture in Military Legal History: Abraham Lincoln in Law and Lore: The Lincoln Conspirators' Trial by Military Commission

AuthorChief Judge Frank J. Williams
Pages07

THIRD GEORGE S. PRUGH LECTURE IN MILITARY LEGAL HISTORY1: ABRAHAM LINCOLN IN LAW AND

LORE: THE LINCOLN CONSPIRATORS' TRIAL BY

MILITARY COMMISSION

CHIEF JUDGE FRANK J. WILLIAMS*

Thank you very much, Colonel Borch, ladies and gentlemen, General Chipman. Mrs. Prugh and your family, thank you so much for the opportunity to be the third lecturer in honor of your late husband, a true patriot. When I go around the country speaking to young lawyers and citizens-our fellow citizens-I remind them that they all enhance certain values. There are values and characteristics that many of our fellow citizens think of as old-fashioned. You know them, don't you? Loyalty, friendship, patriotism, family, and nation. It's unfortunate that our fellow countrymen have to be reminded of these values from time to time. This is why I remain so inspired about Abraham Lincoln. Just as Colonel Borch indicated, Lincoln saw the vision of America as enshrined in the Declaration of Independence, and a vision that you fulfill every day.

I hope that all of you who serve in the Judge Advocate General's (JAG) Corps, and who are being taught here, realize how lucky you are to have these opportunities. I wanted to go into JAG from a combat branch. I had always wanted to be a lawyer. When I was thirteen in junior high school, I recognized what a good lawyer Abraham Lincoln was and wanted to be just like him. We didn't have a Reserve Officers' Training Corps then, as you do now. Nor did we have programs that allowed an officer to transfer to another branch like JAG after completing an initial tour of duty. I regret that very much. So, I went to law school and practiced law for twenty-five years. Much like Abraham Lincoln, I engaged in a very general law practice doing litigation. I decided that I was tired of being the 800-pound gorilla. I wanted to become a judge-a trial judge-who could mediate cases. Lincoln, believe it or not, was a great mediator and believed in alternative dispute

resolution before that term was ever invented.2 As a judge I mediated disputes, and we continue to mediate in our courts in Rhode Island. I am proud of each and every one of you for your service to our country. I think about you every day; you and the men and women in arms, across the seas.

I would like to recognize the members of the Afghan delegation and the Afghan National Army. Everyone in this room, and many millions across the United States, wish peace for you and your country. We have found in our own history, before that peace can be obtained, certain things have to be done and they are not pleasant. Abraham Lincoln did not win the Civil War with a powder puff, and unfortunately that's what your beloved country is undergoing right now. I'm glad we are there to help you.

General Malinda E. Dunn and General Clyde "Butch" Tate, thank you for being with us today. You honor me with your presence. Dean, Colonel Robert A. Burrell, it is good to have you with us. My co-author, Bill Bader is here. He and I are working on a book together. It is not on the most distinguished Supreme Court justices-but rather the undistinguished Supreme Court justices. We are having fun doing it, aren't we, Bill?

[To which Mr. Bader responds, "Yes."]

My wife Virginia told me you're a tough group. She suggested, "Don't try to be charming, witty, or intelligent-just be yourself." So, I'm glad to be here to talk about one aspect-really, a subset of-the Lincoln story. It is one for which you may see parallels today. I intend for you to notice these parallels and I hope there will be a heated, or at least a good discussion about them in the Q & A period that will follow. Today, I belong to you. You can ask me anything you want; tomorrow, when you're in my court, you belong to me.

As the twenty-first century lurches forward, it is tempting to wonder, who among the presidents, that have served and that will serve, will ever

join Abraham Lincoln in the rarified ranks of Monday holidays. How can a culture that picks apart its president's infirmities-that looks for dye in the hair or clay on the feet and writes books on dysfunctional first families-compete for heroes with one that nourished the image of the rail-splitter? In the avalanche of intense mourning that greeted Lincoln's death 144 years ago this month, Americans pursued a dual, and not entirely compatible, course of revenge and mythification. On the one hand, his admirers elevated Abraham Lincoln to the status of icon, a transfiguration into secular sainthood that was as swift as it was sure.3

On the other hand, concurrently, Americans thirsted for revenge against the conspirators who had perpetrated the murder of the man they now mourned.4

Through the summer of 1865, the public was entirely able to sanctify the memory of Lincoln, the forgiver, the preserver of American democracy, while simultaneously encouraging the trial of his assassins by questionable military means and in conditions that would ordinarily have been repugnant to lovers of liberty.5 Precisely what did the military trial of the Lincoln assassination conspirators mean in law, culture, and history? Despite the intense and widespread hatred for Lincoln that existed during the War, even in the North, there was an avalanche of intense mourning for him when he was assassinated.6 No doubt, some Lincoln haters experienced a strong, emotional reaction in his favor,7 but

others would have found it impossible to forgive him his despotism and championship of a despised race simply because of his death.8 Like Booth, they would have thought he had it coming to him and that the assassination served a patriotic end.

But who can stand against an avalanche? Most of the individuals who continued to hate Lincoln were smart enough to keep quiet about it; so quiet that it soon came to seem that mourning for him had been universal. In his first and beautifully written chapter in Lincoln in American Memory, titled, "Apotheosis," Merrill Peterson, who taught right here at the University of Virginia, gives this precise impression.9

Another friend, Californian William Hanchett, who taught in San Diego too, made this point. He also stated that some of the ostentatious grief displayed was not sincere, as many pronounced Copperheads in the North, who believed in the justice of the Southern cause and who were virulently anti-Lincoln, sought to appease Republican mourners by overdecorating their houses and businesses with flags and mourning crepe and by solemnly attending memorial services.

Professor David Donald at Harvard wrote, "Within eight hours of his murder, Republican congressmen, in secret caucus agreed that his death was a godsend to their cause because Andrew Johnson, the new President, would punish the errant South in ways that Lincoln was resisting . . . politicians of all parties were apparently startled by the extent of the national grief over Lincoln, and, politician-like, they decided to capitalize upon it."10 Of course, the mourning was very real, and the long train ride to Springfield moved Americans in a way that is still reflected in the Lincoln myth. But the President who led the North to victory is more admirable than the myth. And, this is the President whose death silenced, but did not convert, all his enemies. The fact that Americans elevated Lincoln to secular sainthood, while, at the same time, sought to discover and punish those responsible for his murder may not be incompatible. In fact, love for Lincoln would strengthen determination that those who took his life not be allowed to get away with it. This is one explanation of the military trial which permitted a wide-ranging investigation of the assassination conspiracy in an attempt

to implicate the Confederate government, not just the band of John Wilkes Booth, and the use of a military trial as opposed to a civil trial, which would have had to confine itself to the guilt and innocence of the accused.11

As it turned out, the U.S. Government could not prove a Confederate conspiracy. It was four o'clock on the morning of April 15th, 1865, when John Wilkes Booth and David E. Herold turned their horses onto the narrow, rutted lane which led to the home of Dr. Samuel A. Mudd, a quarter of a mile off the main road to Bryantown in Southern Maryland's Charles County.12 After a few minutes, the riders could make out the doctor's plain, two-story, clapboard house silhouetted against the sky at the top of a long rise. They stopped at the edge of the lawn, and Herold, who had ridden ahead of Booth, dismounted and pounded on the door while Booth sat hunched on his horse. Booth was the very image of misery and discomfort. The doctor and his wife were asleep in a back room on the first floor of the house and were startled by the heavy pounding on their door. So, the 31-year-old doctor rose and trudged wearily to the door in his nightshirt. Without opening the door, he asked who was there and was told, he would later insist, that his callers were two strangers on their way to Washington.13 One of their horses had fallen, the voice said, and the rider believed his leg had been strained or fractured.14 Dr. Mudd opened the door and helped the dismounted rider bring the injured man into the parlor where they laid him on a sofa. Trouble-big trouble-had descended on the little household of Dr. Samuel A. Mudd.

With the exception of Mrs. Mary Surratt, a woman tried as a conspirator in the Lincoln assassination and the first woman to be sentenced to death in the federal system,15 no other person punished for complicity in the Lincoln plot has been so steadfastly and vociferously defended as an innocent victim of the Federal Government's thirst for

vengeance as has Dr. Mudd. Not only has an elementary school in Maryland been named in his honor,16 in 1936, for example, 20th Century Fox released a film, "The Prisoner of Shark Island," which sympathetically portrayed the doctor's imprisonment.17 In 1973, the Michigan legislature, at...

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