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: email@example.com
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.
Rehnquist, William H. 1998. ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME. New York: Random House.
EX PARTE MILLIGAN, 71 US 2 (1866).
Copyright 2004 by the author, Judith L. Holmes
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