"This was the noblest Roman of them all
All the conspirators, eave only he,
Did that they did in envy of great Caesar;
He only, in a general honest thought,
And common good to all, made one of them.
His life was gentle, and the elements
So mixed in him, that nature might stand up
And say to all the world, "This was a man !”

him converse with freedom and explain all his secret thoughts, in spite of the odious crime with which he is charged, I have formed an estimate of him little short of admiration, for his honesty of purpose, freedom from deception and malice, and courageous resolution to abide by the principles to which he was reared. I find in him none of that obstinacy which I commit him, then, without hesitation, to perseveres in crime because it is committed, your charge. You have fought on the same and hopes to secure admiration in a feigned fields, and as you have never been wanting in consistency. Neither is there about him a mercy to the defeated, so I know you will not false desire of notoriety, nor a cowardly effort be wanting in mercy to him. You have all como screen himself from punishment; only one manded private soldiers, and as you could estiprominent anxiety-that is, lest people should mate the enthusiasm of your own men, so you hink him a hired assassin, or a brute; an aver-will know how to estimate the enthusiasm of sion to being made a public spectacle of, and those who fought against you. The lives of all of desire to be tried at the hands of his fellow-you have shown that you were guided in all peritizens. plexities by the stern and infallible dictates of Altogether, I think we may safely apply conscience and duty, and I know that you will o him, without spurious sympath or exag- understand and weigh in your judgment of the geration, the words which were s 1 of Bru- prisoner, dictates and duties so kindred to your LEWIS PAYNE.

own.

ARGUMENT

ON THE

LAW AND EVIDENCE IN THE CASE OF DR. SAM'L A. MUDD,

BY

THOMAS EWING, JR.

not participate in the guilt of the assemblage, not, after the date of the proclamation, see either if they were guilty (or in any way in the guilty of the parties named therein-dress the wound act of others), a collateral point? This can of Booth or point out the way to Heroldnot be. The presence of the party, when and the proclamation relates to future acts, not presence is necessary, being part of the overt to past. act, must be positively proved by two wit- 5. But of the common law of war, as distinct nesses. No presumptive evidence, no facts from the usages of Military Courts, in carryfrom which presence may be conjectured or ing out and executing the Articles of War, I inferred, will satisfy the Constitution and the know nothing, and on examining the books, I law. If procurement take the place of pres- find nothing. All that is written down in ence, and become part of the overt act, then books of law or authority I am, or ought to be, no presumptive evidence, no facts from which prepared to meet; but it were idle and vain to the procurement may be conjectured or in- search for and combat a mere phantom of the ferred, can satisfy the Constitution and the imagination, without form and void. law. The mind is not to be led to the conclu- I now pass to a consideration of the evidence, sion that the individual was present by a which I think will fully satisfy the Court that train of conjectures or inferences, or of reason- Dr. Mudd is not guilty of treasonable conspiring. The fact itself must be proved by two wit-acy, or of being an accomplice, before or after nesses, and must have been committed within the fact in the felonies committed. the district."

The accused has been a practising physi2. Not of murder. For the law is clear, cian, residing five miles north of Bryantown, that, in cases of treason, presence at the com- in Charles county, Maryland, on a farm of mission of the overt act is governed by the about five hundred acres, given to him by his same principle as constructive presence in father. His house is between twenty-seven ordinary felonies, and has no other latitude, and thirty miles from Washington, and four or greater or less, except that in proof of trea-five miles east of the road from Washington to son two witnesses are necessary to the overt Bryantown. It is shown by Dr. George Mudd, act, and one only in murder and other felonies. "A person is not constructively present at an overt act of treason, unless he be aiding and abetting at the fact, or ready to do so, if necessary." 4 Cr., 492. Persons not sufficiently near to give assistance are not principals. And although an act be committed in pursuance of a previous concerted plan, those who are not present, or so near as to be able to afford aid and assistance, at the time when the offense is committed, are not principals, but accessories before the fact. Wharton Am. Crim. Low, 112 to 127.

John L. Turner, John Waters, Joseph Waters, Thomas Davis, John McPherson, Lewellyn Gardiner, and other gentlemen of unimpeached and unquestionable loyalty, who are in full sympathy with the Government, that he is a man of most exemplary character-peaceable, kind, upright, and obedient to the laws. His family being slaveholders, he did not like the anti-slavery measures of the Government, but was always respectful and temperate in discussing them, freely took the oath of allegiance prescribed for voters (Dr. George Mudd), supported an Union candidate against It is, therefore, perfectly clear, upon the Harris, the secession candidate, for Congress law as enacted by the Legislature and ex-(T. L. Gardiner), and for more than a year past pounded by jurists, that Dr. Mudd is not guilty of participating in the murder of the President; that he was not actually or constructively present when the horrid deed was done, either as a traitor, chargeable with it as an overt act, or a conspirator, connected as a principal felon therewith.

regarded the rebellion a failure. (Dr. George Mudd.) He was never known or reported to have done an act or said a word in aid of the rebellion, or in countenance or support of the enemies of the Government.

An effort was made, over all objections and in violation, I respectfully submit, of the plain3. The only other crimes defined by law for est rules of evidence, to blacken his character the alleged commission, of which the Judge as a citizen, by showing that he was wont, Advocate may, by possibility, claim the con- after the war broke out, to threaten his slaves viction of the accused, are: 1st. The crime of to send them to Richmond "to build batteries." treasonable conspiracy, which is defined by the But it will be seen hereafter, that all that part law of 21st July, 1861, and made punishable of the testimony of the same witnesses, which by fine not exceeding $6,000, and imprison- related to the presence of Surratt and of rebel ment not exceeding six years. 2d. The crime officers at the house of the accused, was utof being an accessory before, or after the fact to terly false. And Dyer, in presence of whom the crimes of murder, and of assault with Eglent says the threat was made to him, swears intent to kill. That the accused is not guilty he was not in the country then, and no such of either of these crimes, will be clearly shown threat was ever made in his presence. The in the discussion of the evidence which follows. other colored servants of the accused, Charles4. Admitting the Secretary's proclamation and Julia Bloyce, and Betty and Frank Washto be law, it, of course, either supersedes or ington, say they never heard of such threats defines the unknown something or nothing having been made; and J. T. Mudd and Dr. which the Judge Advocate calls "the common George Mudd, and his colored servants Charles law of war." If so, it is a definite, existing and Julia Bloyce, and Betty and Frank Washthing, and I can defend my clients against it; ington, describe him as being remarkably and it is easy to show that Dr. Mudd is not easy, unexacting and kind to all about himguilty of violating that proclamation. He did slaves and freemen.

From this brief reference to the evidence of the character of the accused, I pass to a consideration of the testimony adduced to prove his connection with the conspiracy.

the neighborhood, after the purchase of the horse and before the assassination.

he bought the horse of Gardiner. She lives at her father's, on the farm adjoining that of accused, and was at his house two or three times a week, and saw him nearly every day on his visits to his mother, who was an invalid, and whose attending physician he was; and never saw or heard of Booth, except on that

3d. Fanny Mudd, sister of the accused, lir. ing with her father, testifies to the same effect. 4th. Charles Bloyce was at the house of the accused Saturday and Sunday of each week of last year until Christmas Eve (except six weeks in April and May), and never saw or heard of Booth's being there.

5th. Betty Washington (colored) lived there from Monday after Christmas until now, and never saw or heard of Booth there before the assassination.

2d. Mary Mudd says she saw Booth one Sunday in November at church, in Dr. Queen's And, first, as to his acquaintance with Booth. pew, and with his family, and that she heard J. C. Thompson says, that early in November of his being at the house of her brother, the last Booth went to the house of witness' father-accused, on that visit, but did not hear that he in-law, Dr. William Queen, four or five miles stayed all night; and that on the same visit south of Bryantown, and eight or ten from Dr. Mudd's, and presented a letter of introduction from a Mr. Martin, of Montreal, who said he wanted to see the county. It does not appear who Martin was. Booth said his business was to invest in land and to buy horses. He went with Dr. Queen's family to a church next day, in the neighborhood of Bryantown, one occasion, before the assassination. and was there casually introduced, before service, by Thompson, to the accused. After service Booth returned to Queen's house, and stayed until the next morning, when he left. While at Queen's, he made inquiries of Thompson as to horses for sale, the price of lands, their qualities, the roads to Washington, and to the landings on the Potomac; and Thompson told him that the father of Dr. Samuel Mudd was a large landholder, and might sell part of his land. On Monday morning, after leaving Dr. Queen's, Booth came by the house of the accused, who went with him to the house of George Gardiner, to look at some Nor is there any evidence whatever of horses for sale. The accused lives about one- Booth's having stayed all night with the accused quarter of a mile from Gardiner's (Mary on the visit when the horse was bought of Mudd, Thomas L. Gardiner), and on the most Gardiner, or at any other time, except that of direct road to that place from Dr. Queen's, Col. Wells, who says, that after Mudd's arrest, through Bryantown. (Mary Mudd, Hardy.) "he said, in answer to another question, that There Booth bought the one-eyed saddle-horse he met Booth sometime in November. I think which he kept here, and which Payne rode he said he was introduced by Mr. Thompson. after the attempted assassination of Mr. Sew-son-in-law of Dr. Queen, to Booth. I think ard. Mudd manifested no interest in the he said the introduction took place at the purchase, but after it was made Booth di- chapel or church on Sunday morning; that, rected the horse to be sent to Montgomery's after the introduction had passed between Hotel, in Bryantown, and Booth and the accused rode off together in the direction of the house of the accused, which was also the direction of Bryantown. Witness took the horse to Bryantown next morning, and delivered him in person to Booth there. Witness says the horse was bought on Monday; but he thinks in the latter part of November; though he says he is "one of the worst hands in the world to keep dates."

6th. Thomas Davis lived there from 9th of January last. Same as above.

them, Thompson said, Booth wants to bug farming lands; and they had some little e versation on the subject of lands, and the Booth asked the question, whether there were any desirable horses that could be bought it that neighborhood cheaply; that he mentioned the name of a neighbor of his who had some horses that were good travelers; and that he remained with him that night, I think, and the next morning purchased one of those horses." Now, it will be recollected that Thompson says Booth stayed at Dr. Queen's on that visit Saturday night and Sunday night, and Thomas L. Gardiner says the horse was bought Monday mor ing. So that, if Col. Wells is correct in recollecting what Mudd said, then Thomps There is nothing whatever to show that must be wrong. It is more probable that Mudd saw Booth on this second visit, or at any Thompson is right, as to Booth's having spen other time, in the country, prior to the assas- Sunday night at Queen's. Thompson's testisination; but a great deal of evidence that he mony is strengthened, too, by that of Mary never was at Mudd's house, or in his immedi- Mudd, Fanny Mudd, and Charles Bloyce, who ate neighborhood, prior to the assassination, would, in all probability, have heard the fact except once, and on his first visit. I will refer of Booth spending Sunday night at the hous to the several items of testimony on this of the accused, had he done so; but they di point. did not hear it.

Thompson further says, that after Booth's first introduction and visit to Dr. Queen's, "he came there again, and stayed all night, and left very early next morning. I think it was about the middle of December following his first visit there."

1st. Thomas L. Gardiner says he was back It is here to be observed, that though the and forth at Mudd's house, sometimes every accused was not permitted to show, by Booth day, and always two or three times a week, declarations here, that he was contemplating and never heard of Booth being there, or in and negotiating purchases of lands in Charis

county, yet evidence was admitted as to his spring near Dr. Mudd's house. Bedding declarations made there to that effect. Dr. taken from the house; meals carried by Mary Bowman, of Bryantown, says that Booth nego- Simms, generally, though they sometimes ate in tiated with him, on one of these visits, for the the house, and they all slept at the spring, purchase of his farm, and also talked of buy-except one called John Surratt, who slept once ing horses. And a few days after witness in the house. Don't say how long they had negotiated with Booth for the sale of his stayed. It was in "planting tobacco time." farm, he met Dr. Mudd, and spoke of the He attended their horses in Dr. Mudd's stable. negotiation with Booth, and Mudd said, "Why hat fellow promised to buy my land." It is also shown by Dr. Blanford, Dr. Bowman, M. P. Jardiner, and Dyer, that Mudd, for a year past, wanted to sell his land, and quit farm

ng.

3d. Rachel Spencer, slave of Dr. Mudd and cook at his house, left him early in January, 1865; saw five or six men around Dr. Mudd's house last summer; slept in the pines near the house, and were furnished with meals from it. Were dressed in black and blue. Were there This, then, is all that is shown of any meet-only a week, and never saw them there before or since. ng between Mudd and Booth in that country She heard no names of the men except Andrew before the assassination-a casual introduc- Gwynn and Watt Bowie. That Albin Brooke ion at church on Sunday in November-Booth lived at Dr. Mudd's then, and was with these going next morning to Mudd's, talking of men occasionally. uying his farm, and riding with him a quarer of a mile to a neighbor's to buy a horse, nd their going off together toward Mudd's nd Bryantown, where the horse was delivred to Booth next morning.

We will now turn to consider the evidence s to the accused's acquaintance with John H. Surratt. If he knew Surratt at all, the fact is ot shown by, nor inferable from, the evilence. Miss Surratt was educated at Bryanown, before the war, and her family lived at Surrattsville, and kept the hotel there (which 8 on the road from Dr. Mudd's house to Washngton), until they removed, in October last, a house on H street, in this city, where they ave since resided. (Miss Surratt, Holahan, eichmann). Dr. Mudd probably had met Surratt at the hotel at Surrattsville, or, before he war, at Bryantown, while his sister was at chool; but it is not shown by credible testiCony that he knew him at all. Let us examne the evidence on this point.

4th. Elzee Eglen, formerly Dr. Mudd's slave, left him 20th August, 1863; saw a party sleeping in the pines, by the spring, near the house, summer before last. Knew Andrew Gwynn, and he was one of them; did not recollect any other names. Mary Simms carried them meals, and Milo Simms attended the horses in Dr. Mudd's stable. Some wore gray clothes with brass buttons, but without other marks-some black clothes. Did not say how many there were, nor how long they stayed.

5th. Melvina Washington, formerly Dr. Mudd's slave, left him October, 1863; saw party sleeping in the pines near the house summer before last; victuals furnished from the house. Party stayed there about a week, and then left. Some were dressed in gray, and some in short jackets with little peaks behind, with black buttons. She saw them seven or eight times during one week, and then they all left, and she never saw any of them at any other time except during that week. That Andrew Gwynn's name was the only one she heard; that Mary Simms used to, tell her, when the men were there, the names of others, but she had forgotten them.

1st. Mary Simms, formerly Dr. Mudd's slave, ays that a man whom Dr. and Mrs. Mudd alled Surratt was at Mudd's house from almost very Saturday night until Monday night brough the latter part of the winter, and That these five witnesses all refer to the hrough the spring and summer of last year same party of men and the same year is cerntil apples and peaches were ripe, when she tain, from the fact that Elzee Eglen says that aw him no more; and that on the last of No- Mary Simm3 carried the party he describes as ember she left Dr. Mudd's house. That he being there in the summer of 1863, their ever slept in the house, but took dinner there victuals, and that Milo Simms kept their horses x or seven times. That Andrew Gwynn, Ben- in the stable, and Melvina Washington says ett Gwynn, Capt. Perry, Lieut. Perry, and Mary Simms used to tell her the names of the apt. White, of Tennessee, slept with Surratt party which she describes as being there in a the pines near the spring, on bed-clothes 1863; and also from the fact that all of them, arnished from Dr. Mudd's house, and that except Milo Simms, named Andrew Gwynn as ey were supplied by witness and by Dr. being one of the party. I will not waste the Judd with victuals from the house. That time of the Court in pointing out to it in Villiam Mudd, a neighbor, and Rachel Spen- detail the discrepancies in their evidence er, and Albin Brooke, members of Mudd's apparent from the foregoing synopsis of their ousehold, used to see Surratt there then. testimony; and therefore, only calling its he says that the lieutenants and officers had paulettes on their shoulders, gray breeches ith yellow stripes, coat of same color and rimming. Their horses were kept in Dr. ludd's stable, by Milo Simms.

2d. Milo Simms, brother of Mary, fourteen ears old, formerly slave of Dr. Mudd, left here Friday before last Christmas. Saw two 7 three men there last summer, who slept at the

attention to the fact that all of these witnesses were living with Dr. Mudd during and after the year 1861 (Dyer), down to the several dates given above, when they respectively left, I will proceed to show from the evidence what and when the occurrences really were about which they have testified.

1st. Ben. Gwynn (named by Mary Simms as one of the party) says: