Vol. 14 No. 4 (April 2004)
LINCOLN’S AVENGERS: JUSTICE, REVENGE, AND REUNION
AFTER THE CIVIL WAR, by Elizabeth D. Leonard.
New York: W.W. Norton
& Company, 2004. 352
pp. Cloth $25.95. ISBN: 0-393-04868-3.
Reviewed by Judith L. Holmes, Department of Legal Studies,
University of Massachusetts Amherst.
Email: jholmes@legal.umass.edu
LINCOLN’S AVENGERS, by historian Elizabeth D. Leonard,
revisits the prosecution of President Lincoln’s assassins against the
backdrop of the struggle over Reconstruction. Using new sources, Leonard
defines the assassination as “a crucial first act in the period known
as Reconstruction, for it significantly influenced the debates over what
the federal government’s program for the vanquished Confederacy should
look like, and how the South’s eventual return to the political fold should
be effected” (pp.xi-xii). Prosecuting the assassins required the
federal government to decide how high up in the Confederacy the assassination
conspiracy went. Was it simply
the act of a handful of Southern sympathizers living in the Washington,
D.C. area, or was it a desperate act of war orchestrated by Jefferson
Davis and the Confederate leadership?
After John Wilkes Booth’s co-conspirators were summarily tried
and convicted by a military commission, Jefferson Davis languished in
a military prison while President Andrew Johnson battled with Congress
and his cabinet over the scope of punishment for the former Confederate
leadership. Leonard concludes
that “powerful disagreements concerning the punishment of the South as
a whole influenced-and were, in turn, influenced by-powerful disagreements
concerning the punishment of those remaining individuals, including Jefferson
Davis himself, who were associated in one way or another with Booth’s
plot” (p.xiii).
Leonard tells this story from the perspective of Judge
Advocate General Joseph Holt, a complex man whose actions reflect the
intensity of his overriding commitment to union.
A Kentucky native, former slaveholder, and Democrat, Holt seems
an unlikely candidate for chief Lincoln avenger. Holt studied law in Lexington,
Kentucky, before establishing a lucrative law practice in Mississippi
litigating cases arising from the new cotton industry.
Holt also established himself as a staunch Democrat with a flair
for oratory. In 1857, Holt began his government career
as commissioner of patents and then serving as postmaster general and
secretary of war under Democratic President James Buchanan. Throughout his law career and then as a government administrator,
Leonard finds that Holt distinguished himself as a staunch “Union man”
known for thoroughness, integrity, no-nonsense leadership, and numbing
hard work.
After Lincoln was inaugurated in March 1861, Holt left
public service, returned to his home state, and worked fervently to keep
Kentucky in the Union. Lincoln rewarded Holt’s pro-Union work with an
appointment as judge advocate general in the Department of War. From this
position, Holt administered military justice through courts martial and
military commissions. Between
1863 and 1865, Holt empanelled 34,000 military commissions to prosecute
soldiers and civilians. According to Leonard, of particular interest
to Holt as chief legal officer of the Department of War were prosecutions
of Copperhead conspiracies in Western states and other civilian Confederate
sympathizers.
The day after Lincoln’s assassination, Holt, with the
assistance of Secretary of War Stanton, took charge of the investigation
and shaped the subsequent prosecutions.
Leonard finds that Holt quickly concluded the attacks on Lincoln
and Secretary of State Seward were instigated by the Confederate leadership.
At the widely publicized trial of John Wilkes Booth’s motley crew of co-conspirators,
Holt defined the assassination conspiracy broadly and focused as much
attention on the guilt of the absent Confederate leaders as he did on
the people on trial. President Johnson seemed to be in step
with Holt’s view of the assassination when he upheld the capital convictions
including Mary Surratt’s, the first woman executed by the federal government.
With the first trial completed, Holt wanted to concentrate
on Davis. However, he lacked
sufficient hard evidence linking Davis to the assassination conspiracy;
so he turned instead to prosecution of Henry Wirz, the notorious commandant
of the Confederacy’s Andersonville prison, and launched a prosecution
for war crimes related to widespread mistreatment of Union POWs. This prosecution fit with Holt’s agenda to punish Confederate
leadership and, once again, President Johnson authorized the military
commission and upheld the death sentence for violation of laws of war. Leonard concludes that this was one of
the last indications Johnson agreed with Holt’s and the Radical Republican’s
view of Reconstruction. Indeed,
LINCOLN’S AVENGERS argues that “an only partly supportive Johnson was
[already] making his first moves toward enacting the swift, undemanding
reconciliation with the South he had essentially decided to effect by
executive means, with or without congressional approval”
(p.182). From then on, the ensuing political struggles
over Reconstruction altered and reshaped Holt’s plan to punish Confederate
leadership through martial law.
In December, 1865, the Senate passed a resolution demanding
to know why Davis had not been tried.
Meanwhile, Johnson pardoned thousands of former Confederate leaders,
including Davis’ vice-president, and disbanded many military commissions. In April 1866, Johnson declared unilaterally
the war was over, thereby eliminating the exigent circumstances that justified
use of martial law for civilians. The day after Johnson’s declaration, the Supreme Court, in
EX PARTE MILLIGAN, overturned the convictions of civilian Confederate
sympathizers from an 1863 military commission on the grounds that the
defendants had never been residents of any state that had participated
in the rebellion, there was no state of war in southern Indiana, and the
civilian courts remained open and fully operational.
While this meant there would be no prosecution of Davis in a military
commission, there was still the possibility of a civilian trial for treason. Unfortunately, Holt never gathered the
hard evidence he needed to convict Davis, and a Congressional investigation
revealed Holt’s overreaching and bad judgment in relying on dubious informants
and witnesses. A month after
Johnson declared peace, he transferred Davis from military custody to
civilian authorities in Virginia who immediately released him on $100,000
bail. It would take two more years before the
federal government announced it would not prosecute Davis.
The final blow to Holt’s strategy to punish the Confederacy
came in the summer of 1867 when Booth’s fugitive co-conspirator, John
Surratt, the son of previously executed Mary Surratt, was arrested in
Egypt and returned to Washington, D.C.
Surratt was tried by a civilian jury, composed of seven Southerners
and five Northerners and immigrants-not before a military commission. When the jury was unable to reach a verdict, the trial judge
declared a mistrial and Surratt was released.
Throughout LINCOLN’S AVENGERS, Leonard convincingly shows
how the debate over Reconstruction affected the postwar prosecutions. For instance, Leonard finds that John
Surratt’s trial took place “in the shadow of, the same bitterness that
prevailed on both sides of the debate over control of Reconstruction”
(p.262). She finds evidence of this in “the very
heatedness with which the case was argued, the ill behavior of the lawyers,
their vicious attacks on one another and on the witnesses” and in the
failure of the jury to reach a unanimous verdict (p.262). She also finds evidence of the bitter struggle between Johnson
and Congress over the form Reconstruction would take, specifically with
regard to punishing the Confederate leadership.
Although not of central interest to Leonard, LINCOLN’S
AVENGERS also shows how civil liberties give way to the exigencies of
war, in this case through the Executive Branch’s use of military commissions
to silence and punish its critics as well as its enemies. The use of military commissions instead of civilian criminal
courts gave Holt a much freer hand to pursue Confederate sympathizers
in the North. Holt credited
military commissions with “bringing to justice . . . a large class of
malefactors in the service or interest of the rebellion, who otherwise
would have altogether escaped punishment” because military commissions
were “unincumbered by the technicalities and inevitable embarrassments
attending to the administration of justice before civil tribunals” (p.166).
Indeed, with a military commission, Holt defined the crime, used
military resources to gather evidence, and handpicked the members of the
tribunal. Defendants were
denied traditional due process rights and subjected to summary justice. In EX PARTE MILLIGAN, Justice Davis, a
close personal friend of Lincoln, vehemently rejected the use of wartime
military commissions to try civilians when the courts were open and functioning
as usual. Writing for the
Court, he said “a country, preserved at the sacrifice of all the cardinal
principles of liberty, is not worth the cost of preservation.” For readers
interested in pursuing civil liberty aspects of military commissions,
ALL THE LAWS BUT ONE by William H. Rehnquist, is an excellent companion
book to LINCOLN’S AVENGERS.
To reiterate, though, what Leonard defines as her task-to
show the relationship between the prosecution of Lincoln’s assassins and
the struggle over Reconstruction-she accomplishes persuasively. LINCOLN’S AVENGERS makes an important
contribution to our understanding of the troubled, and troubling, era
of Reconstruction.
REFERENCE:
Rehnquist,
William H. 1998. ALL THE LAWS BUT ONE: CIVIL LIBERTIES
IN WARTIME. New York: Random
House.
CASE REFERENCE:
EX PARTE MILLIGAN, 71 US 2 (1866).
***********************************************************
Copyright 2004 by the author, Judith L. Holmes