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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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  • kcliflar
    05/16/2011 at 2:46pm


    Fred, you are right in that Stanton and Holt wanted justice for Lincoln's murder, and they were assured a quick and deliberate trial by supporting a military one. However, this doesn't make them villains, as the film hints at. Elizabeth is right - Stanton and Holt were indeed honorable men who served the Union and Lincoln admirably and with single-minded devotion. Yes, they were determined to get harsh sentences - as we would expect of those prosecuting assassins! Conover was the only witness that really perjured himself. None of the witnesses against Mary did - although a couple who testified in her defense flirted with perjury. And we have to remember that though the trial in the film focuses on Mary exclusively, the trial involved all eight co-conspirators. Powell (Payne), Atzerodt, and Herold were deep in the conspiracy and received the death sentence accordingly. Mudd escaped the noose miraculously. The others were sentenced to prison terms. Testimony against them was not perjured - though as with Mary, some of the defense witnesses certainly gave perjured testimony or came close to it. The evidence against Mary was so significant that the justices voted to hang her with the other three - that is no small matter. I doubt that given the incredible seriousness of hanging a woman they would have based their decision on perjured testimony. That hanging a woman was so distasteful to them is represented in their plea for clemency - even though they had unanimously decided she was a primary co-conspirator worthy of the death penalty. If Stanton and Holt were so awful then the rest of the co-conspirators, and probably more, would have hanged, too.
    In my mind, it wasn't Stanton's and Holt's behavior that is so troubling, but rather the post-war politics of a still-divided nation that continued to wreak havoc on American society and law. Resistance to a new social and political order dominated by the victors was (and in some places, still is) too bitter a pill to swallow. Stanton and Holt became victims of that post-war environment. The trial became a political weapon.
    And frankly, can you imagine what would have happened if there had been a civilian trial?

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  • edleonar
    05/16/2011 at 4:34am


    I ran out of space on my last posting, and woke up this morning thinking of something that I really need to add with regard to my concerns about the portrayal of Stanton and Holt. These concerns go beyond the issue of their motivations, as they are portrayed in the film. They also include, significantly, my concern that the emphasis on Stanton and Holt's apparent malice and steely manipulation seems to crowd out any real possibility that Mary Surratt, who is depicted, in contrast, as a pious and long-suffering mother, was rightly found guilty! Instead, the possibility of her guilt (at the very least, of knowing collaboration with Booth and her son in the developing conspiracy) is clouded by the clear "evidence" of Holt's and Stanton's corruption and lack of moral or professional principles, and this seems highly problematic to me.

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  • edleonar
    05/15/2011 at 8:23pm


    Hi again!

    Perhaps we really do see some aspects of the film quite differently, Fred, and even read aspects the historical record differently. And of course I respect your years of research on Holt! Moreover, there are certainly many important points of contact between us, and I agree with most of what you wrote! I would certainly agree that Holt and Stanton sought a harsh verdict for Booth's co-conspirators. And yes, Holt did use flawed witnesses (Conover chief among them), but these witnesses were deployed to prove his grand conspiracy theory and implicate Davis, wouldn't you agree, not Surratt? Anyway, the point I was trying to make is that in the film both Stanton and Holt seem to me to be completely two-dimensional villains, whose reasons for seeing things the way they arose only from malice, not even vaguely from their devotion to the Union (though it's true, the film's Stanton does make one comment about Union, but Huston's Holt is offered no such opportunity to explain himself). I would like to have seen more explicit appreciation on the part of the filmmakers of the view that I believe Holt and Stanton both held, that such a hard war would almost certainly have to be followed by a hard peace. Instead, I think their possible motivations were distilled down to simple vengeance, and that really bothered me. Still, I am willing to entertain the possibility that my own tone in attempting to explain this view was perhaps a bit harsh!

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  • fred_borch
    05/13/2011 at 9:37am


    Hi Elizabeth:

    I guess we just haven't seen the same film -- and I guess we have been studying different history as well. "The Conspirator" is not apology for the Confederacy and the movie I saw doesn't have a "Lost Cause-ish" message. But we can certainly disagree about that. However, I've studied Holt just as long as you have and the fact is that both he and Stanton were determined to get quick and harsh results in the trial. Stanton wanted the conspirators tried and hanged before Lincoln was buried (and he said so). Stanton and Holt knew that a civilian trial would be a disaster becasue they couldn't control the results; there is no question that they lobbied Attorney General Speed to arrive at a legal opinion that required trial by military commission. Holt wanted a secret trial (and only grudgingly decided to open it to the public). Holt hand-picked the jury. Holt presented perjured testimony at trial (and he knew it was perjured or else he was reckless). Holt participated in the commissoners' deliberations to guarantee that they made the correct decisions. He wanted Mary hanged -- and he got his way. But he didn't do this because he was a vengeful or evil man -- rather, both he and Stanton genuinely believed that the assassination was part of a diabolical plot that included Jeff Davis and other Confederate leaders. And the only way to deter future similar attacks was to come down hard on the conspirators.

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  • edleonar
    05/10/2011 at 10:58am


    Well, I've seen the film (twice), and I have to say that I was pretty troubled by its portrayals of both Holt and Stanton, which are virtually identical to the original script (except that Holt is now described properly as the army's judge advocate general instead of its "chief adjutant general").

    My complaints have nothing to do with the individual actors' abilities: both Kline and Huston did a fine job with the script they had. But I would vigorously dispute the film's heavy-handed depiction of them as shameless Yankee scoundrels who were determined, at all costs, to find a way to convict and execute poor, pious Mary Surratt, as a stand-in not only for her son but, apparently, also for the vanquished Confederacy. The film ahistorically (and irresponsibly) indicates that both Holt and Stanton were entirely content to dispense with the rule of law--with justice in any form, actually--in order to manipulate the trial towards their own mean and vengeful ends. Not so.

    I would like to note, as well, how strange it seemed to me that Huston's Holt gave not even the slightest indication of being a native southerner. For goodness sake, couldn't they even give him a slight southern accent, which the historical Holt surely had, having spent the first fifty years of his life in Kentucky (and, briefly, Mississsippi)? Frankly, I do not think this omission was an oversight. Rather, it strikes me as a "creative" choice that strengthens the film's Lost Cause-ish message.

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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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