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The Conspirator

Posted By - Fred L. Borch III
Mar 28, 2011 at 8:43pm | Filed Under “The Conspirator

“Brig. Gen. Joseph Holt - His Role as Chief Prosecutor in the Military Tribunal”

Joseph Holt, a Kentucky lawyer and staunch Unionist, was confirmed by the Congress as President Lincoln's Judge Advocate General on September 3, 1862. This made Holt the top lawyer in the Army, and the principal legal advisor to Lincoln on all military legal matters. Holt was a well-known figure in political circles, as he had served in President Buchanan's administration as Commissioner of Patents (1857), Postmaster General (1859), and Secretary of War (1861). Holt worked closely with Lincoln during the Civil War and met regularly with the President in the White House to discuss courts-martial; by law, Lincoln had to approve every death sentence imposed by a court-martial, and Holt brought these records of trial to Lincoln and discussed each case with him.

After the decision was made to try Mary Surratt and the other seven conspirators at a military commission, Brigadier General Holt took charge of the proceedings. He was considered by his contemporaries to be an excellent courtroom lawyer and was widely respected and admired. But, although Holt had overall responsibility for the prosecution of the conspirators, much of the work (especially the questioning at trial) was done by his two able assistants: Judge Advocate Major Henry L. Burnett and Special Judge Advocate John A. Bingham. That said, when the proceedings began on May 9, 1865 in Washington City, it was Holt who had shaped their form.

First, no doubt assisted by his friend (and boss) Secretary of War Stanton, Holt had chosen the seven generals and two colonels who would sit as the commission members. All were Unionists who owed their commissions as officers to the president and who presumably felt a strong personal loyalty to him. These men were unlikely to develop any sympathy for the conspirators, much less consider acquitting them. In any event, there was no "presumption of innocence" at a military commission.

Second, because the charge of conspiracy leveled against Mary Surratt and her seven co-conspirators included claims that the leaders of the Confederacy were involved in the plot to kill Lincoln, Holt and his assistants introduced much evidence that had nothing to do with Surratt or the seven defendants. For example, the military commission heard testimony that Confederate agents had plotted to infect Northern cities with small-pox infected blankets and that Union prisoners had been mistreated at Andersonville prison.

Third, Holt used both direct evidence (for example, the testimony of Lloyd that Mary had come to him on the afternoon of the assassination and told him to get the 'shooting irons' ready) and circumstantial evidence (for example, that Mary ran the boarding house that hatched the conspiracy to kill Lincoln) to put together a very strong case against her. Her guilt was a foregone conclusion -- the only question was whether she would hang for her part in the conspiracy.

At the end of a two-day deliberation, the commission voted to hang Mary Surratt. At the same time, five members signed a petition requesting that President Johnson commute Mary's sentence. What happened to this petition continues to be controversial. General Holt insisted that he delivered the clemency petition to Johnson -- and that the president rejected it. Johnson later denied having seen it. But this claim by Andrew Johnson seems disingenuous because he had the power to commute Mary's sentence at any time if he had felt justice required such clemency. Additionally, when Johnson suspended the writ of habeas corpus in Mary's case -- thereby rendering the writ that Aiken had obtained from Judge Wiley a nullity -- Johnson made it clear that he did not want Mary to escape the hangman's noose.

But Johnson's charge that Holt had withheld the petition from him stuck to Holt; he spent the rest of his life attempting to vindicate himself of the charge.

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  • laverge-01
    03/22/2012 at 8:00pm


    Please do not believe the old escape theories related to John Wilkes Booth. The Enid, Oklahoma story is just one of about a half-dozen that have him all over the globe.

    The Oklahoma version was made popular in the early-1900s by a Memphis lawyer named Finis Bates, who did more to screw up history than you can imagine. It has been perpetuated over the past forty years through the undying efforts of a man in Maryland, who even attempted to get the body of Booth exhumed. His efforts failed in civil court and in a special appeals court for lack of evidence.

    Your classmate's story is even wrong to the point of saying that someone else was executed in place of Booth. Four other conspirators were hanged for their involvement with Booth, but not one of them was a Booth look-alike.

    There are thousands of Lincoln assassination researchers and scholars around the world who have worked tirelessly to bring the true facts of the crime to public attention. It is time to start listening to them instead of theorists.

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  • taletotell
    03/11/2012 at 8:12pm


    Quick addendum to the story:

    About 30 years ago(give or take a few), I was in Oklahoma History class at the University of Tulsa. Our assignment was to come up with un unusual research paper regarding a little known part of Oklahoma history. We were encouraged to do this through unconventional means, like actual interviews and personal accounts if possible.

    I thought I probably had the most unusual report because mine was first hand accounts of rooster fighting and how much the underground enterprise affected the economy of the state. I was wrong.

    A fellow classmate by the name of Jana Boothe(not sure I spelled her name correctly) had family documents and photos regarding her great-great(don't know how many greats)uncle John. Apparently he actually escaped to Indian territory and resided in what is now Enid, Oklhoma where he died a natural death some years into his old age. Another was actually hanged in his place.

    She was quite convincing. And, of course,she would have no reason to WANT to be associated with John Wilkes Boothe if in fact she didn't have to. Her family had actually been protecting the shameful secret all these years.

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  • laverge-01
    01/03/2012 at 7:03pm


    Mr. Beaven,

    I am director of the Surratt House Museum in Maryland and also friends with some lateral descendants of the Herolds. I would love to have you contact me.

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  • historybuffcbt
    12/28/2011 at 1:15pm


    I thoroughly enjoyed the presentation of "The Conspirator". It motivated me to study many websites, books and links to information that I would not have ever considered otherwise. The movie and the premise of The American Film Company has brilliantly accomplished their purpose to educate about little-known historical stories that were part of momentus events formative to the United States. Thank you, thank you for staying so close to the true events and true people! Thank you also for avoiding obvious screen-play embellishments that often twist or shade the truth of the actual circumstances and people. Robert Redford is a master director! Kevin Kline in a rare dramatic role was great as well as the rest of the cast! I am very impressed and I look eagerly forward to the next finished project!! Keep up the excellent work!!

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  • Warren_Beaven
    12/26/2011 at 7:21pm


    I have joined the discussion because I am a descendant of George Isaac Herold, first cousin to David E. Herold. I am very knowledgeable aabout the Heorld family both before and after the War Between the States. I appreciate Mr. Redford and the production team's careful use of historical settings.

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Fred L. Borch III

U.S. Army (Ret.) Historian

Colonel Fred L. Borch (Ret.) is the Regimental Historian and Archivist for the U.S. Army Judge Advocate General's Corps - one of only two full-time legal historians in the U.S. Armed Forces.

Fred served 25 years as a military lawyer in the Army Judge Advocate General's Corps. His areas of... More

Fred L. Borch III

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