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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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  • JohnITW
    08/11/2011 at 3:30pm


    Hi Col.Borch,

    While I respect your service to the country and expertise as a historian, you and I don’t agree on many things and I welcome your rebuttal. It seems to me that your comments are based more on opinion than fact. I’m not a historian, so please feel free to correct me where I am wrong. I have a list of disagreements which I posted here for your reply:

    Since I have limited space here, I'll post one of my many questions:

    I have you seen you state on many occasions that Holt or Stanton hand-picked the military commission. Can you please clarify Andrew Johnson’s May 1 Order:

    It is ordered: 1st. That the Assistant Adjutant-General detail nine competent military officers to serve as a Commission for the trial of said parties…

    ** Special thanks to the wonderful folks at The American Film Company for bringing this little known story to the big screen. While I didn't agree with the implied portrayals of some of the characters, I found the film engaging and interesting and recommend others to see it. I would also recommend that they look further in to the story to draw their own conclusions. DVD - August 16 !

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  • AStudentofHistory
    06/27/2011 at 4:34pm


    An interesting point no scholar has pointed out: since this was for all intents and purpuses a military tribunal as opposed to a civilian court certain rules and procedures did not apply-namely the 5th adn 6th amendments! Professors I would like to know what you think about those applications in this trial!

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  • AStudentofHistory
    06/27/2011 at 4:30pm


    Made or mad: credit or debit *he he he*

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  • AStudentofHistory
    06/27/2011 at 11:38am


    Galesburgir, I agree the American Film Company should get made credit from the Press for the willingness to produce historical fiction!

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  • Galesburgirl
    06/24/2011 at 2:47pm


    I can't wait to view this film and to follow the research on which the film is based. As an African-American "history mystery sleuth" and writer, I commend Robert Redford and the American Film Company for taking on this subject. I hope it encourages this film company & other filmmakers to dig deep into original sources to correct all of our misconceptions about American History. Hip, Hip, Hooray!

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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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