Replies

"Bennett correctly points out that Lincoln was a supporter of colonization. But supporting colonization is not the same as preferring it. Lincoln believed it was one small answer to the larger problem confronting Blacks in a racist society. What the readers of Forced Into Glory should know is that Lincoln advocated voluntary colonization. No Black was forced to leave the country against his or her free will. Only those who wanted to leave were offered the opportunity. The great majority declined, a few did not.

In one instance, Lincoln had approved a contract with an unscrupulous contractor to set up a colony on the Ile de Vache off the coast of Haiti. When Lincoln learned that several hundred Blacks had been abandoned without proper support, he ordered the United States Navy to bring the Blacks back to the United States. If Lincoln's plan was to rid the country of Blacks by deportation, he showed poor judgement in returning those Blacks who had already been deported.

Whatever Lincoln believed in his heart regarding social equality, he believed slavery was morally wrong, and he said so on numerous occasions: "If slavery is not wrong, then nothing is wrong." His views were well known to southern leaders, which is why they rejected his presidency. When Confederate peace commissioners met at Hampton Roads in 1865, Lincoln was willing to entertain terms of peace and reunion, but only on the condition that slavery was not a negotiating point. Lincoln insisted that any peace proposal include ratification of the Thirteenth Amendment abolishing slavery.

To help facilitate acceptance of peace with abolition, Lincoln proposed compensating southern slaveholders to the tune of 400 million dollars to free their slaves. Lincoln had earlier expressed these same views in a letter to Horace Greeley concerning "The Niagara Peace Conference" held in 1864. Lincoln wrote that any peace agreement must embrace "the abandonment of slavery." This position belies Bennett's claim that Lincoln was a white supremacist whose every effort was to prolong slavery until such time as all Blacks could be deported leaving a "lily-White America" -- Bennett's words.

Mr. Bennett's distortion of Lincoln's "racial" policy is not restricted to Blacks. An excellent example of Bennett's style of making "white of black and black of white" is his account of Lincoln's actions regarding the Sioux Indian uprising in Minnesota. In August 1862, hostilities broke out between the Sioux nation in Minnesota and settlers of that state. When the fighting ended, over 400 white settlers were dead. The army captured over 1,500 Indian prisoners, including 1,000 women and children. A military commission was set up to try those Indians accused of atrocities. In the end, 303 Indians were sentenced to hang. Lincoln objected to what he viewed as wholesale slaughter. He wired the commanding officer to stay the executions and forward the "full and complete record of each conviction." He also ordered that any material which would discriminate the most guilty from the least guilty be included with the trial transcripts.

Lincoln then sat down with his Justice Department lawyers and reviewed every case. Lincoln was under tremendous pressure to approve the executions both to intimidate the Indians and to satisfy the white settlers' thirst for revenge. Both the military leaders and the politicians in Minnesota warned Lincoln that anything less than large-scale hangings would result in outrage and more violence against the Indians. Lincoln held firm and pardoned 265 of the 303 condemned Indians, approving a total of 38 cases.

Mr. Bennett focuses only on the 38 and refers to Lincoln's decision as "hard-hearted," and as an example of Lincoln's "double standard" when it came to questions of race. Bennett writes that Lincoln "approved one of the largest mass executions in military history," suggesting that he was motivated to kill Indians because he never forgot that an Indian "sneaked up behind his grandfather and killed him while he was working in a field." Bennett stops short of calling Lincoln's act "ethnic cleansing." He saves that offensive term to describe Lincoln's colonization policy.

Mr. Bennett's revisionist approach to history is not new. What makes his latest work so sensational is not his revisionist approach, but his subject. Abraham Lincoln has become a universal symbol of human ideals. Toppling such an icon is not an easy task. Anyone who seeks to bring down Lincoln will have to do more than cry fraud. Putting dreams in Lincoln's head ("Lincoln dreamed of an all-White nation") or putting someone else's words in his mouth ("the n----- question") will not do the job. While it may titillate the few, it will not convince the many.

Throughout his 627 pages of text, Mr. Bennett does not seem to understand what Lincoln knew so well: Union victory meant the end to slavery. Lincoln didn't stop with abolition, however. In his speech from the White House balcony on April 11, 1865, Lincoln began moving the country forward in the only way that would insure success -- he advocated Negro suffrage in small, sure steps. No amount of drum beating by Mr. Bennett can diminish the revolutionary significance of this act.

While it is important to focus on what Abraham Lincoln did as opposed to what he said, it would do Mr. Bennett and the rest of us well to heed Lincoln's words to his young law partner, Billy Herndon: "History is not history unless it is the truth."

Walt

4CJ, HLII, ping to you in case you may desire to add your legal expertise or correct me if I am in error.

Edward Steers, Jr., Blood on the Moon, University Press of Kentucky, 2001, pp. 210-211

Publication made possible in part by a grant from the National Endowment for the Humanities

Most important to the case of the Lincoln conspirators, a person may be a member of an unlawful consipracy without knowing all of the details of the conspiracy or even all of the other members. If a person understands the unlawful nature of a plan and willingly joins in the plan, even if only on one occasion, it is sufficient to convict the individuals for conspiracy even though that person played only a minor role. The law further states that when a felony has been committed in pursuance of a conspiracy that had as its design only a misdemeanor, the misdemeanor becomes merged into the felony.⁵
Simply stated, if the intent of the conspiracy is to kidnap and a homicide occurs as a result of the conspiracy, the crime becomes one of homicide, not kidnapping. The aims of the conspiracy may shift or evolve. This last point is especially important when considering the case of the Lincoln conspirators. Booth's original conspiracy to capture shifted to one of murder.
One other aspect of the law needs to be recognized, and that is the concept of "vicarious liability." This concept states that any one person involved in a consipracy is liable for the actions of another, even though the first person was not directly responsible for the ultimate actions of the other.
And finally, a person may only withdraw from a conspiracy by making a meaningful effort to prevent the consipracy from ultimately taking place. Having a change of heart and simply walking away from a conspiracy is not sufficient in the eyes of the law to absolve a conspirator.
This law clearly applies to those charged and tried as co-conspirators with John Wilkes Booth in the murder of Abraham Lincoln. While some of the conspirators may have thought they were participating only in a plot to kidnap the president and while others believed they had abandoned the plot, they were still involved in the eyes of the law.
The eventual murder of Abraham Lincoln could have been prevented if any of the conspirators had gone to the proper authorities and exposed the plot along with the plotters. No one did.
On May 1, President Johnson issued an executive order directing that the persons charged with Abraham Lincoln's murder stand trial before a military commission. Johnson's order rested on Attorney General James Speed's decision that the accused were "enemy belligerents" and not citizens. There alleged offenses were military in nature and had a military objective: to adversely affect the war effort of the Northern military. It was a decision that appears to have been more influenced by Stanton that by Speed.
[footnote 5] United States Criminal Code, chap. 18 (sic), sec. 371.

TITLE 18 § 371

|LINK|
---------------------------------------------------------------
United States Code
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 19 - CONSPIRACY
---------------------------------------------------------------
U.S. Code as of: 01/22/02
Section 371. Conspiracy to commit offense or to defraud United States
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

Now let's look at what a real legal hornbook on criminal law says.

CRIMINAL LAW, Wayne R. LaFave and Austin W. Scott, Jr., West Publishing Co., Hornbook Series, Student Edition, 1986, pages 590-1.

Forseeability of Other Crimes.
The question considered above as to whether liability for the conspiracy also suffices for accomplice liability with regard to any crimes committed in pursuance of the conspiracy is, as was suggested, a means for testing the outer limits of the act requirement for accomplice liability. A somewhat similar question is whether, on an accomplice liability theory, one may be held accountable for a crime because it was a natural and probably consequence of the crime which that person intneded to aid or encourage. this tests the outer limits of the mental state requirement for accomplice liability, for it asks, in effect, whether an intent with respect to one offense should suffice as to another offense which was the consequence of the one intended.
The established rule, as it is usually stated by courts and commentators, is that accomplice liability extends to acts of the principal in the first degree which were a "natural and probably consequence" of the criminal scheme the accomplice encouraged or aided. Some accomplice liability statutes, even in recent recodifications, expressly adopt this position. Under this approach, if A counsels or aids B in the commission of a burglary or a robbery of C and B encounters resistance from C and thus shoots at him in the course of the burglary or robbery, A is an accomplice to attempted murder. On the other hand, if A is an accomplice in a scheme to steal a safe from a building, and one of the other parties, B, takes it upon himself while alone to also rob the watchman in the building, A is not an accomplice to the robbery.

DISCUSSION

Simply stated, if the intent of the conspiracy is to kidnap and a homicide occurs as a result of the conspiracy, the crime becomes one of homicide, not kidnapping. The aims of the conspiracy may shift or evolve. This last point is especially important when considering the case of the Lincoln conspirators. Booth's original conspiracy to capture shifted to one of murder.

Booth's original conspiracy to kidnap Lincoln did NOT shift to a murder conspiracy. Booth hatched a second conspiracy, with much more limited membership, to murder Lincoln.

In the Lincoln assassination, the murder of Lincoln did NOT result due to any act in furtherance of any conspiracy to KIDNAP Lincoln. On April 14, 1865 Booth did not take any act intended to KIDNAP Lincoln.

The assassination of Lincoln was not a natural or probable consequence of any conspiracy to KIDNAP Lincoln.

Someone such as Dr. Mudd, unaware of Booth's plot to murder Lincoln, is not criminally culpable as a member of any conspiracy to murder Lincoln.

Even were it shown that Mudd had agreed to assist Booth in an attempt to KIDNAP Lincoln, Lincoln's death is certainly not attributable to any kidnap attempt by Booth.

It is impossible to maintain that on April 14, 1865 a homicide occurred as a result of a kidnapping conspiracy. There was no attempt to kidnap. No homicide occurred as the proximate cause or as the natural or probable consequence of any act taken in furtherance of any kidnap conspiracy.

One other aspect of the law needs to be recognized, and that is the concept of "vicarious liability." This concept states that any one person involved in a conspiracy is liable for the actions of another, even though the first person was not directly responsible for the ultimate actions of the other.

"Vicarious Liability: The imposition of liability on one person for the actionable conduct of another, based solely on a relationship between the two persons. Indirect or imputed legal responsibility for acts of another; for example, the liability of an employer for the acts of an employee, or, a principal for torts and contracts of an agent."
Black's Law Dictionary, Sixth Edition

Vicarious Liability: The imputation of liability upon one person for the actions of another. In tort law, if an employee, EE, while in the scope of his employment for employer, ER, drives a delivery truck, and hits and injures P crossing the street, ER will be vicariously liable, under the doctrine of respondeat superior, for injuries sustained by P. In criminal law, in some jurisictions, if EE, who is employed by ER as a bartender, sells liquor to a minor, ER will be criminally liable for the offense of EE.
Law Dictionary, Second Edition, Steven H. Gifis

CRIMINAL LAW, Second Edition, Wayne R. LaFave and Austin W. Scott, Jr.
Hornbook Series, West Publishing Co., Student Edition, 1986
Pages 250-55

§ 3.9 Liability Without Fault -- Vicarious Liability
The last section considered one time of criminal liability based upon conduct withoutfault on the part of the defendant -- the strict liability crime. Now we consider another type of such criminal liability, where the defendant, generally one conducting a business, is made aliable, though without personal fault, for the bad conduct of someone else, generally his employee.
* * *
Although virtually all of the statutes expressly imposing vicarious liability do so only in the context of an employer-employee relationship, this is not inevitably the case. There are, for example, statutes which hold the registered owners of vehicles vicariously liable for parking and similar violations involving their vehicles.
* * *
Vicarious liability is imposed because of the nature and inherent danger of certain business activities and the difficulties of establishing actual fault in the operation of such businesses. A fine, unlike imprisonment, is less personal and is more properly viewed as a penalty on the business enterprise.
* * *
The reason for enacting vicarious-liability statutory crimes, imposing liability upon innocent and careful employers for the conduct of their employees acting within the scope of their employers' business, are the same as those which underlie strict-liability crimes. That the employer knew of or authorized the employee's conduct is sometimes difficult to prove, so the legislature makes the matters of knowledge and authorization irrelevant.

One involved in a conspiracy is only liable for actions taken by another in furtherance of the conspiracy to which he is a member. As one cannot show that Mudd joined a conspiracy to murder Lincoln, one cannot show Mudd was liable for actions taken by Booth in furtherance of such a conspiracy of which Mudd was unaware.

This law clearly applies to those charged and tried as co-conspirators with John Wilkes Booth in the murder of Abraham Lincoln. While some of the conspirators may have thought they were participating only in a plot to kidnap the president and while others believed they had abandoned the plot, they were still involved in the eyes of the law.

This is a pantsload.

Only those who joined Booth in a plot to murder Lincoln were legally involved in said murder conspiracy.

Regarding the crime of murder, at the time of the trial, "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
From closing argument of Thomas Ewing, Jr., attorney for Samuel Mudd.

Regarding the crime of treasonable conspiracy, "the crime of treasonable conspiracy, which is defined by the law of 21st July 1861, and made punishable by fine not exceeing $6,000, and imprisonment not exceeding six years."
From closing argument of Thomas Ewing, Jr., attorney for Samuel Mudd.

Regarding the crime of accessory after the fact, "If a person supply a felon with food, or other necessaries for his sustenance, or professionally attend him sick or wounded, though he know him to be a felon, these acts will not be sufficient to make a party an accessory after the fact." Wharton's American Criminal Law, page 73.
From closing argument of Thomas Ewing, Jr., attorney for Samuel Mudd.

"The prosecution appears to have been instituted and conducted under the proclamation of the Secretary of War, of April 20, 1865. this makes it a crime, punishable with death, to harbor or screen Booth, Atzerodt, or Herold, or to aid or assist them to escape. It makes it a crime to do a particular act, and punishes that crime with death. I suppose we must take this proclamation as law. ... Admitting the Secretary's proclamation to be the law, it, of course, either supersedes or defines the unknown something or nothing which the Judge Advocate calls "the common law of war." If so, it is a definite, existing thing, and I can defend my clients against it; and it is easy to show that Dr. Mudd is not guilty of violating that proclamation. He did not, after the date of the proclamation, see either of the parties named therein -- dress the wound of Booth or point out the way to Herold -- and the proclamation relates to future acts, not to the past.

And finally, a person may only withdraw from a conspiracy by making a meaningful effort to prevent the consipracy from ultimately taking place. Having a change of heart and simply walking away from a conspiracy is not sufficient in the eyes of the law to absolve a conspirator.

CRIMINAL LAW, Second Edition, Wayne R. LaFave and Austin W. Scott, Jr.
Hornbook Series, West Publishing Co., Student Edition, 1986
Pages 593-4.

§ 6.8(d)

(d) Withdrawal From the Crime.

One who has given aid or counsel to a criminal scheme sufficient to otherwise be liable for the offense as an accomplice may sometimes escape liability by withdrawing from the crime. A mere change of heart, flight from he crime scene, or an uncommunicated decision not to carry out his part of the scheme will not suffice. Rather, it is necessary that he (1) repudiate his prior aid, or (2) do all that is possible to countermand his prior aid or counsel, and (3) do so before the chain of events has become unstoppable. If the prior aid consisted of supplying materials to be used in commission of the offense, effective withdrawal may require that these materials be reqcquired so as to prevent their use by the principal. On the other hand, if one's prior efforts were limited to requesting or encouraging commission of the crime, then an intention to withdraw communicated to the others will be sufficient. In the alternative, in either case an effective withdrawal might also be possible by timely warning to the police or similar actions directed toward preventing the others from committing the crime. It is not necessary that the crime actually have been prevented.

THE CHARGES

CHARGE. -- For maliciously, unlawfully, and traitorously, and in aid of the existing armed rebellion against the United States of America, on or before the 6th day of March, A.D. 1865, and on divers other days between that day and the 15th day of April, A.D. 1865, combining, confederating, and conspiring together with one John H. Surratt, John Wilkes Booth, Jefferson Davis, George N. Sanders, Beverly Tucker, Jacob Thompson, William C. Cleary, Clement C. Clay, George Harper, George Young, and others unknown, to kill and murder, within the Military Department of Washington, and within the fortified and intrenched lines thereof, Abraham Lincoln, late, and at the time of said combining, confederating, and conspiring, President of the United States of America, and Commander-in-chief of the Army and Navy thereof; Andrew Johnson, now Vice-President of the United States aforesaid; William H. Seward, Secreatry of State of the United States aforesaid; and Ulysses S. Grant, Lieutenant-General of the Army of the United States aforesaid, then in command of the Armies of the United States, under the direction of the said Abraham Lincoln; and in pursuance of and in prosecuting said malicious, unlawful, and traitorous conspiracy aforesaid, and in aid of said rebellion, afterward, to-wit, on the 14th day of April, A.D. 1865, within the Military Department of Washington aforesaid, and within the fortified and intrenched lines of said Military Department, together with said John Wilkes Booth and John H. Surratt, maliciously, unlawfully, and traitorously murdering the said Abraham Lincoln, then President of the United States and Commander-in-chief of the Army and Navy of the United States, as aforesaid; and maliciously, unlawfully, and traitorously assaulting, with intent to kill and murder, the said William H. Seward, then Secretary of State of the United States, as aforesaid; and lying in wait with intent maliciously, unlawfully, and traitorously to kill and murder the said Andrew Johnson, then being Vice-President of the United States; and the said Ulysses S. Grant, then being Lieutenant-General, and in command of the Armies of the United States, as aforesaid.

ONE OF THE SPECIFICATIONS AGAINST MUDD

And in further prosecution of said conspiracy, the said Samuel a. Mudd did, at Washington City, and within the military department and military lines aforesaid, on or before the 6th day of march, .A.D. 1865, and on divers other days and times between that day and the 20th day of April, A.D. 1865, advise, encourage, receive, entertain, harbor, and conceal, aid and assist the said John Wilkes Booth, David E. Herold, Lewis Payne, John H. Surratt, Michael O'Laughlin, George A. Atzerodt, Mary E. Surratt, and Samuel Arnold, and their confederates, with knowledge of the murderous and traitorous conspiracy aforesaid, and with the intent to aid, abet, and assist them in the execution thereof, and in escaping from justice after the murder of the said Abraham Lincoln, in pursuance of said conspiracy in manner aforesaid.

FROM THE CLOSING ARGUMENT OF PROSECUTOR JOHN BINGHAM

If this conspiracy was thus entered into by the accused; if John Wilkes Booth did kill and murder Abraham Lincoln in pursuance thereof; if Lewis Payne did, in pursuance of said conspiracy, assault, with intent to kill and murder, William H. Seward, as stated, and if the several parties accused did commit the several acts alleged against them in the prosecution of said conspiracy, whether present at the time of its execution or not, whether on trial before this Court or not, are alike guilty of the several acts done by each in the execution of the common design. What these conspirators did in the execution of this conspiracy by the had of one of their co-conspirators they did themselves; his act, done in the prosecution of the common design, was the act of all the parties to the treasonable combination, because done in execution and furtherance of their guilty and treasonable agreement.

The U.S. Government did not allege any kidnapping conspiracy. They alleged it was all a murder conspiracy. Many documents currently available make known the existence of a kidnap plot. Booth's Diary documented a kidnap plot. April 13/14: "Until to day nothing was ever thought of sacrificing to our country's wrongs. For six months we had worked to capture."

The diary was suppressed from the trial, the Congress and the public. With certainty, it had been delivered to Edwin Stanton. Stanton allegedly gave it into the possession of Thomas T. Eckert, Assistant Secretary of War. In 1867, the existence of Booth's diary was made publically known by the former head of the National Detective Police, Lafayette C. Baker. Baker said he tendered the diary intact, with no pages missing. A political firestorm broke loose. When Congress demanded the diary, it was finally produced. It is missing 43 sheets or 86 pages.

BOUVIER'S LAW DICTIONARY, 1856 EDITION

TREASON, crim. law. This word imports a betraying, treachery, or breach of allegiance. 4 Bl. Com. 75.
2. The constitution of the United States, art. 3, s. 3, defines treason against the United States to consist only in levying war (q. v.) against them, or in adhering to their enemies, giving them aid or comfort. This offence is punished with death.
Act of April 30th, 1790, 1 Story's Laws U. S. 83. By the same article of the constitution, no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court. Vide, generally, 3 Story on the Const. ch. 39, p. 667; Serg. on the Const. ch. 30; United States v. Fries, Pamph.; 1 Tucker's Blackst. Comm. Appen. 275, 276; 3 Wils. Law Lect. 96 to 99; Foster, Disc. I; Burr's Trial; 4 Cranch, R. 126, 469 to 508; 2 Dall. R. 246; 355; 1 Dall. Rep. 35; 3 Wash. C. C. Rep. 234; 1 John. Rep. 553 11 Johns. R. 549; Com. Dig. Justices, K; 1 East, P. C. 37 to 158; 2 Chit. Crim. Law, 60 to 102; Arch. Cr. Pl. 378 to 387.
CONSPIRACY, crim. law, torts. An agreement between two or more persons to do an unlawful act, or an act which may become by the combination injurious to others. Formerly this offence was much more circumscribed in its meaning than it is now. Lord Coke describes it as "a consultation or agreement between two or more to appeal or indict an innocent person falsely and maliciously, whom accordingly they cause to be indicted or appealed and afterwards the party is acquitted by the verdict of twelve men."
2. The crime of conspiracy, according to its modern interpretation, may be of two kinds, Damely, conspiracies against the public, or such as endanger the public health, violate public morals, insult public justice, destroy the public peace, or affect public trade or business. See 3 Burr. 1321.
3. To remedy these evils the guilty persons may be indicted in the name of the commonwealth. Conspiracies against individuals are such as have a tendency to injure them in their persons, reputation, or property. The remedy in these cases is either by indictment or by a civil action.
4. In order to reader the offence complete, there is no occasion that any act should be done in pursuance of the unlawful agreement entered into between the parties, or that any one should have been defrauded or injured by it. The conspiracy is the gist of the crane. 2 Mass. R. 337; Id. 538 6 Mass. R. 74; 3 S. & R. 220 4 Wend. R. 259; Halst. R. 293 2 Stew. Rep. 360; 5 Harr. & John. 317 8 S. & R. 420. But see 10 Verm. 353.
5. By the laws of the United State's, St. 1825, c. 76, Sec. 23, 3 Story's L. U. S., 2006, a willful and corrupt conspiracy to cast away, burn or otherwise destroy any ship or vessel. with intent to injure any underwriter thereon, or the goods on board thereof, or any lender of money on such vessel, on bottomry or respondentia, is, by the laws of the United States, made felony, and the offender punishable by fine not exceeding ten thousand dollars, and by imprisonment and confinement at hard labor, not exceeding ten years.
6. By the Revised Statutes of New York, vol. 2, p. 691, 692, it is enacted, that if any two or more persons shall conspire, either, 1. To commit any offence; or, 2. Falsely and maliciously to indict another for any offence; or, 3. Falsely to move or maintain any suit; or, 4. To cheat and defraud any person of any property, by any means which are in themselves criminal; or, 5. To cheat and defraud any person of any property, by means which, if executed, would amount to a cheat, or to obtaining property by false pretences; or, 6. To commit any act injurious to the public health, to public morals, or to trade and commerce, or for the perversion or obstruction of justice, or the due administration of the laws; they shall be deemed guilty of a misdemeanor. No other conspiracies are there punishable criminally. And no agreement, except to commit a felony upon the person of another, or to commit arson or burglary, shall be deemed a conspiracy, unless some act besides such agreement be done to effect the object thereof, by one or more of the parties to such agreement.
7. When a felony has been committed in pursuance of a conspiracy, the latter, which is only a misdemeanor, is merged in the former; but when a misdemeanor only has been committed in pursuance of such conspiracy, the two crimes being of equal degree, there can be no legal technical merger. 4 Wend. R. 265. Vide 1 Hawk. 444 to 454; 3 Chit. Cr. Law, 1138 to 1193 3 Inst. 143 Com. Dig. Justices of the Peace, B 107; Burn's Justice, Conspiracy; Williams' Justice, Conspiracy; 4 Chit. Blacks. 92; Dick. Justice Conspiracy, Bac. Ab. Actions on the Case, G 2 Russ. on Cr. 553 to 574 2 Mass. 329 Id. 536 5 Mass. 106 2 D R. 205; Whart. Dig. Conspiracy; 3 Serg. & Rawle, 220; 7 Serg. & Rawle, 469 4 Halst. R. 293; 5 Harr. & Johns. 317 4 Wend. 229; 2 Stew. R. 360;1 Saund. 230, u. 4. For the French law, see Merl. Rep. mot Conspiration Code Penal, art. 89.
CONSPIRATORS. Persons guilty of a conspiracy. See 3 Bl. Com. 126-71 Wils. Rep. 210-11. See Conspiracy.

[Walt quoting Steers] What the readers of Forced Into Glory should know is that Lincoln advocated voluntary colonization.

What the readers of Steers should know is what was written by Lincoln's Commissioner of Emigration within the administration, out of public view.

|LINK|

Abraham Lincoln Papers at the Library of Congress. Transcribed and Annotated by the Lincoln Studies Center, Knox College. Galesburg, Illinois.

From James Mitchell to Abraham Lincoln, December 13, 1861

The first thing therefore claiming attention is the preservation of the mandatory relation existing between master and slave-- Should this relation be dissolved by the act of confiscation? We think not, but that law should make the title of the slave-holder eschet to the Federal government, and a strict mandatory relation maintained between the authorities and the freed-men for the purpose of affecting the removal of the latter, which work should be slow and gradual, whilst for the time being a strict survalence should be exercised, so that this perplexing mass of population may not suffer demoralization -- the Federal authority and control may be made rest as lightly on them as their good conduct will justify.

As to the field of present occupation and concentration the estates of disloyal men eschet to the Government for the lifetime of the owners, those could be placed in the hands of those companies and worked by the freed men under their control -- whilst the return of the title to the family would compel the removal of the laborers -- this would be as desired.

FROM LINCOLN'S COMMISSIONER FOR EMIGRATION

From a pamphlet published at the Government Printing Office, by the Lincoln administration, at taxpayer expense.

require a separation of the colored or negro race from us

Yet, terrible as is this civil war between men of kindred race for the dominion of the servant, future history will show that it has been moderate and altogether tolerable when contrasted with a struggle between the black and white race, which, within the next one or two hundred years must sweep over this nation,

the removal of the colored race to a proper locality . . . Surely this exercise of influence is a legitimate prerogative of the Chief Magistrate, the guardian of national peace, who, being convinced of impending danger to the country, has the undoubted right to notify the nation of its approach, and recommend the remedy.

Our danger in the future arises from the fact that we have 4,500,000 persons, who, whilst amongst us, cannot be of us - persons of a different race

The social and civil evils resulting from the presence of the negro race are numerous

the license of the races, which is giving to this continent a nation of bastards.

That political economist must be blind indeed; that statesman must be a shallow thinker, who cannot see a fearful future before this country, if the production of this mixed race is not checked by removal.

possibly the next great civil war will be the conflict of this race for dominion and existence.

this population is in the way of the peace of the country

Thus far we have found that their presence here disturbs our social structure. We come now to examine how far our civil structure is damaged by this population.

But there is one clause of this sacred compact which requires the Federal government to "guarantee to the several States a republican form of government." . . . When rightly construed it must and will require the gradual removal of such anti-republican elements and peoples as cannot be engrafted on the national stock

It is admitted on all hands that our mixed and servile population constitute the root of those issues and quarrels; what shall be done with them is the question of the hour.

this repulsive admixture of blood

the men of the Exeter Hall school, who, far removed from the scene of danger, see not the degradation of this admixture of race.

he does not choose to endanger the blood of his posterity by the proximity of such a population; that here is no command in the Word of God that will oblige him to place this race on the high road to such an amalgamation with his family

they rejected the black because they could not or would not amalgamate on legal or honorable terms.

Nothing but the authority of the Divine law will change his purpose to hedge himself in and erect legal protections against this possible admixture of blood,

Where men are truly moral and religious, the white and black races do not mix, so that the influence of religion will never effect fusion,

hatred of those who would engraft, as they say, negro blood on the population of their country

We must regard the extension of equal social and civil rights to this class of persons as distasteful to the mass of the nations; the majority will never submit to it

we cannot make republican citizens out of our negro population

a possible corruption of blood in future generations

The government of Great Britain is composed of a few thousand titled and privileged persons, located in a small island, who are born to rule and govern. From their isolated position it is not possible for them to come in contact with the numerous, heterogeneous, and inferior tribes and races under their rule. They are thus protected from possible admixture of inferior blood

How can such a people comprehend the necessity or use of removing the man of color?

to protect them against this repulsive admixture of blood

What is to protect us as a people from degenerating as a race, but the resolve to receive no blood from the other races but that which can be honorably and safely engrafted on the stock of the nation.

Let us then, earnestly and respectfully recommend as a remedy for our present troubles and future danger, the perfecting the proposed plans of the administration in regard to those two conflicting races, and the careful and gradual removal of the colored race to some desirable and convenient home.

Some affect to fear that the man of color will not remove to a separate locality. It is not to be expected that a race, which has hardly attained a mental majority, will rise in a day to the stature of the men who found empires, build cities, and lay the ground work of civil institutions like ours; nor should they be expected to do this unaided and alone. They should receive the kind attention, direction, and aid of those who understand such things; nor will the world condemn a gentle pressure in the forward course to overcome the natural inertia of masses long used to the driver's will and rod. Let us do justice in the provision we make for their future comfort, and surety they will do justice to our distracted Republic.

If they should fail to do this, there would then be more propriety in weighing the requirement of some to remove without consultation, but not till then.

We know that there is a growing sentiment in the country which considered the removal of the freed man, without consulting him, "a moral and military necessity" -- as a measure necessary to the purity of public morals and the peace of the country; and this unhappy war of white man with white man, about the condition of the black, will multiply this sentiment.

But we cannot go further now than suggesting, that the mandatory relation held by the rebel master should escheat to the Federal government in a modified sense, so as to enable his proper government and gradual removal to a proper home where he can be independent.

We earnestly pray that a perpetual barrier may be reared between us and that land of the mixed races of this continent - Mexico.

As Abraham and Lot agreed to separate their conflicting retainer and dependents, the one going to the right and the other to the left, so let those two governments agree to divide this continent between the Anglo-American and mixed races

|LINK|

James McPherson

This book must be taken seriously. Bennett gets some things right. ... But Bennett gets more wrong than he gets right. The book suffers from crucial flaws. Least important are the factual errors, for there are not many.

McPherson abjectly admits he could not find factual errors, but buries his admission in partisan puke.

|LINK|

Edward Steers, Jr.

Bennett begins his book with the notion that Lincoln's Emancipation Proclamation did not free a single slave and that Lincoln deliberately exempted slaves in those areas under Union control to keep slavery alive as long as possible. ... Bennett is correct in concluding that the Emancipation Proclamation freed few if any slaves.

As Steers must admit Bennett is correct, it is not just a notion.

Mr. Bennett's revisionist approach to history is not new.

The Trial, Edited by Edward Steers, Jr., page xxv, Thomas Reed Turner:

It is only in the last twenty years that historians have begun a re-examination of the events of the Lincoln assassination, once again reconsidering issues such as the fairness of the military trial. In taking this new look, revision of previously held views has begun to emerge. In the first place, the military court was not convened with the certainty that it would convict."

|LINK|

Mr. Bennett's book is not without factual content and many of his quotations drawn from Lincoln are accurate.

A typical example of the putrescent slop served up by Mr. Steers. Mr. Steers notes that Mr. Bennett's work is not without factual content. At nearly 700 pages, it is loaded with factual content, and neither Mr. McPherson nor Mr. Steers were able to cite errors of factual content.

"Many" of his quotations drawn from Lincoln are accurate. There are many, many quotes of Lincoln, with a source provided, many attributed to the Collected Works of Abraham Lincoln. Mr. Steers fails to show any quote as being inaccurate. Accordingly, "many" are accurate, as in about 100%.

The Emancipation Proclamation was NOT an executive order or a legislative act. It was a military order whose sole LEGAL justification was under the War Powers granted the President in the Constitution. The reason for this is because the President had no authority to issue such an order except as a military decree to injure the military capability of the Confederacy. Both Bennett and Seward sound as if Abraham Lincoln held the power to abolish slavery at any time he chose.

Where does the President derive the authority to issue such and order to injure the military capability of the Confederacy? Is he imbued with some extra-Constitutional power as commander-in-chief?

If the Confederate states were going to rejoin the Union, they would now do so without slavery.

Steers said it. It must be true.

On July 17, 1862, Congress passed the Confiscation Act that authorized confiscating the property of anyone supporting the rebellion, but only after being given 60 days' notice, allowing sufficient time for them to return voluntarily to the Union. Failing a return, their property was to be confiscated -- but ONLY, and this is SO important -- by the Federal courts.

If Mr. Steers says so, and he does, then it must be true. Once upon a time, the Union confiscated property -- but ONLY, and this is SO important -- with the approval of a Federal court in each individual instance. And they all lived happily ever after.

While it is true that Lincoln supported colonization and even asked Congress to appropriate funds for colonizing Blacks, his support for colonization ended abruptly on January 1, 1863, with the issuance of his final Emancipation Proclamation.

Another putrescent pantsload.

Butler's Book, Benjamin F. Butler, 1892, pp. 903-8

April 11, 1865

"But what shall we do with the negroes after they are free? I can hardly believe that the South and North can live in peace, unless we can get rid of the negroes. Certainly they cannot if we don't get rid of the negroes whom we have armed and disciplined and who have fought with us, to the amount, I believe, of some one hundred and fifty thousand men. I believe that it would be better to export them all to some fertile country with a good climate, which they could have to themselves.

Lincoln's colonization policy, in my opinion, was not aimed at Blacks as most people believe -- it was aimed at whites!

The man is as certifiably demented as Mary Lincoln and Boston Corbett. To see him try to sell that pile of revisionist slop to a Black audience would be priceless. As it is, one does not find biographies praising Lincoln written by Black historians.

Frederick Douglass said: "Mr. Lincoln takes care in urging his colonization scheme to furnish a weapon to all the ignorant and base, who need only the countenance of men in authority to commit all kinds of violence and outrage upon the colored people of the country." (FD 3:267)

Lincoln denied that slavery "could be at once eradicated, without producing a greater evil, even to the casue of human liberty itself" (CW 2:130, Lincoln's italics).

And what was this envisioned greater evil to the cause of human liberty than slavery?

Abe was not anti-slavery, he was anti-Black. He did not seek to rid the continent of slavery, he sought to rid the continent of Blacks. Indeed, Abe not only sought to rid the continent of Black people, but any non-white color of the rainbow as well.

Abe. Unlike Dr. Martin Luther King, Jr., Abe dreamed of an endless vista of White America. There would be no n-----s, as Lincoln chose to call them without any elision. There would be no Mexican mongrels, as he called them. Nor would we have any of those American Indian savages either. No, Abe was a true White Supremecist.

In Peoria he said he wanted the territories "should be the happy home of teeming millions of free, white, prosperous people, and no slave among them" (CW 2:249)

He said it again. The territories "should be kept open for the homes of free white people" (CW 2:363)

And again. "We want them [the territories] for the homes of free white people." (CW 3:311)

And again. In defense his interest in the territories, Abe the pimp said to Douglas, "I think we have some interest. I think that as white men we have. Doe we not wish for an outlet for our surplus population, if I may so express myself?" (CW 3:311)

Abe said: If Northerners permitted slavery to spread to the territores, "Negro equality will be abundant, as every White laborer will have occasion to regret when he is elbowed from his plow or his anvil by slave n-----s" (CW 3:378). There goes Abe with that N-word again.

No sir. We can't be having any of that Negro equality, now can we? The White laborer should never permit such a thing. And Abe had the final solution in hand.

Abe spelled it out: "Is it not rather our duty to make labor more respectable by preventing all black competition, especially in the territories?" (CW 3:79)

Abe believed it was our duty. The duty of the white man. The duty to make labor more respectable. It was the sacred obligation of the superior White race, so ordained by god and Abraham, one and the same, to prevent ALL black competition.

Abe was not just for keeping slaves out of the territories, he was for keeping out or removing all non-whites from the territories. Abe had a White Dream. It did not include Blacks. The rest of the rainbow was excluded as well.

|LINK|

[Edward Steers, Jr.] Putting dreams in Lincoln's head ("Lincoln dreamed of an all-White nation") or putting someone else's words in his mouth ("the n-----question") will not do the job. While it may titillate the few, it will not convince the many.

ALL LINKS go to the Complete Works of Abraham Lincoln, Roy. P. Basler. Italics in original.

Here are some of Lincoln's documented words, as they came OUT of Lincoln's own mouth:

=============

|LINK|

Speech at Carlinville, Illinois

August 31, 1858

He [Lincoln] said the question is often asked, why this fuss about niggers?

=============

|LINK|

Speech at Elwood, Kansas

December 1 [November 30?], 1859

People often ask, ``why make such a fuss about a few niggers?''

=============

|LINK|

CW 2:396

Springfield, May 25, 1857.

There is no longer any difficult question of jurisdiction in the Federal courts; they have jurisdiction in all possible cases, except such as might redound to the benefit of a ``nigger'' in some way.

=============

|LINK|

First Debate with Stephen Douglas
August 21, 1858
Ottawa, Illinois

CW 3:20 When my friend, Judge Douglas, came to Chicago, on the 9th of July, this speech having been delivered on the 16th of June, he made an harangue there, in which he took hold of this speech of mine, showing that he had carefully read it; and while he paid no attention to this matter at all, but complimented me as being a ``kind, amiable, and intelligent gentleman,'' notwithstanding I had said this; he goes on and eliminates, or draws out, from my speech this tendency of mine to set the States at war with one another, to make all the institutions uniform, and set the niggers and white people to marrying together.

CW 3:27 There is no danger that the people of Kentucky will shoulder their muskets and with a young nigger stuck on every bayonet march into Illinois and force them upon us.

=============

|LINK|

Third Lincoln-Douglas debate.
September 15, 1858
Jonesboro, Illinois

We have seen many a ``nigger'' that we thought more of than some white men.

=============

|LINK|

August 9, 1856

Lincoln then took the stand and made a three hours speech. It was prosy and dull in the extreme---all about ``freedom,'' ``liberty'' and niggers.

=============

|LINK|

Then if Mr. Douglas did not invent this kind of Sovereignty, let us pursue the inquiry and find out what the invention really was. Was it the right of emigrants in Kansas and Nebraska to govern themselves and a gang of niggers too, if they wanted them? Clearly this was no invention of his, because Gen. Cass put forth the same doctrine in 1848, in his so-called Nicholson letter, six years before Douglas thought of such a thing. Gen. Cass could have taken out a patent for the idea, if he had chosen to do so, and have prevented his Illinois rival from reaping a particle of benefit from it. Then what was it, I ask again, that this ``Little Giant'' invented? It never occurred to Gen. Cass to call his discovery by the odd name of ``Popular Sovereignty.'' He had not the impudence to say that the right of people to govern niggers was the right of people to govern themselves. His notions of the fitness of things were not moulded to the brazen degree of calling the right to put a hundred niggers through under the lash in Nebraska, a "sacred right of self-government." And here, I submit to this intelligent audience and the whole world, was Judge Douglas' discovery, and the whole of it. He invented a name for Gen. Cass' old Nicholson letter dogma. He discovered that the right of the white man to breed and flog niggers in Nebraska was POPULAR SOVEREIGNTY!

Chicago Press and Tribune, September 11, 1858.

Way to go Abe!! Dropped the N-bomb four times in one paragraph in a public speech.

=============

|LINK|

Speech at Edwardsville, Illinois

September 11, 1858

Then, if Mr. Douglas did not invent this kind of sovereignty, let us pursue the inquiry and find out what the invention really was. Was it the right of emigrants in Kansas and Nebraska to govern themselves and a gang of niggers too, if they wanted them? Clearly this was no invention of his, because Gen. Cass put forth the same doctrine in 1848, in his so-called Nicholson letter---six whole years before Douglas thought of such a thing. Gen. Cass could have taken out a patent for the idea, if he had chosen to do so, and have prevented his Illinois rival from reaping a particle of benefit from it. Then what was it, I ask again, that this ``Little Giant'' invented? It never occurred to Gen. Cass to call his discovery by the odd name of ``Popular Sovereignty.'' He had not the impudence to say that the right of people to govern niggers was the right of people to govern themselves. His notions of the fitness of things were not moulded to the brazen degree of calling the right to put a hundred niggers through under the lash in Nebraska, a "sacred right of self-government." And here, I submit to this intelligent audience and the whole world, was Judge Douglas' discovery, and the whole of it. He invented a name for Gen. Cass' old Nicholson letter dogma. He discovered that the right of the white man to breed and flog niggers in Nebraska was POPULAR SOVEREIGNTY!---[Great applause and laughter.]

Alton Weekly Courier, September 16, 1858.

Way to go Abe!! Quite a stump speech you have going there! Different newspaper, four n-bombs.

=============

|LINK|

Seventh and Last Debate with Stephen A. Douglas at Alton, Illinois

October 15, 1858

We profess to have no taste for running and catching niggers---at least I profess no taste for that job at all. Why then do I yield support to a fugitive slave law? Because I do not understand that the Constitution, which guarantees that right, can be supported without it.

=============

|LINK|

Editor of the Central Transcript. Springfield, Dear Sir: July 3, 1859

Your fling about men entangled with the "Matteson Robbery" as you express it; and men indicted for stealing niggers and mail-bags, I think is unjust and impolitic. Why manufacture slang to be used against us by our enemies? The world knows who are alluded to by the mention of stealing niggers and mail-bags; and as to the Canal script fraud, the charge of being entangled with it, would be as just, if made against you, as against any other Republican in the State.

=============

|LINK|

Speech at Clinton, Illinois

October 14, 1859 He then spoke of the evils and disasters attending the repeal of the Missouri Compromise, by which the barriers protecting freedom and free labor were broken down and the Territories transformed into asylums for slavery and niggers....

=============

|LINK|

Speech at Hartford, Connecticut

March 5, 1860

[Daily Courant Version]

They say that between the nigger and the crocodile they go for the nigger. The proportion, therefore, is, that as the crocodile to the nigger so is the nigger to the white man.

============

|LINK|

Speech at a Republican Banquet, Chicago, Illinois

December 10, 1856

Their conduct reminded him of the darky who, when a bear had put its head into the hole and shut out the daylight, cried out, ``What was darkening de hole?'' ``Ah,'' cried the other darky, who was on to the tail of the animal, ``if de tail breaks you'll find out.'' [Laughter and cheers.] Those darkies at Springfield see something darkening the hole, but wait till the tail breaks on the 1st of January, and they will see. [Cheers.] The speaker referred to the anecdote of the boy who was talking to another as to whether Gen. Jackson could ever get to Heaven. Said the boy ``He'd get there if he had a mind to.'' [Cheers and laughter.] So was it with Col. Bissell,---he'd do whatever he had a mind to.

=============

The Trial, edited by Edward Steers, Jr., 2003, introduction by Edward Steers, Jr., at page XVI:

A second example involves the controversy over one of the trial exhibits. "Exhibit No. 1," a photograph identified as John Wilkes Booth. The photograph currently found among the trial exhibits located in the National Archives and marked "Exhibit No. 1" is a photograph of Edwin Booth, John Wilkes Booth's brother. This finding has led those who advocate a government conspiracy aimed at framing innocent people to suggest that the government conspiracy aimed at framing innocent people to suggest that the government deliberately used the wrong photograph to mislead certain witnesses.
And yet, a careful reading of the summation reproduced in Pitman by Samuel Mudd's own defense attorney, Thomas Ewing, proves that the photograph introduced as "Exhibit No. 1" was a photograph of John Wilkes Booth and not his brother." Thus the closing argument of Ewing, found only in the Pitman version, is vital to understanding the true nature of Exhibit No. 1, the photograph of John Wilkes Booth.

Of course, Steers does not identify anything said by Thomas Ewing, Jr. which would support his inane assertion.

As argument by counsel, nothing Ewing said is considered evidence. It would not prove anything. I can find nothing said by Ewing which could remotely support the claim of Steers.

Further, I cannot imagine anything Ewing could have said to prove that the photograph marked as Exhibit No. 1 was a photograph of John Wilkes Booth. It is indisputable that the photograph on file as evidence, marked as Exhibit No. 1, in the official trial record, is a photograph of Edwin Booth and not John Wilkes Booth. You are invited to believe Edward Steers or your own lying eyes.

The trial testimony (actual evidence) is far more illuminating than The putrescent blather of Edward Steers, Jr.

Henry Von Steinacker

Q. Look at that photograph.
A. There is a resemblance; but the face was fuller.
Q. You think it is the same person, but he had a fuller face than this?
A. I believe it is.

Poore, Conspiracy Trial, Vol. I, p. 21

Henry Von Steinaker

[A photograph of John Wilkes Booth being shown to the witness, he identified a resemblance between it and the person referred to. The photograph was offered in evidence.]

Pitman, page 38

Col. H.H. Wells

I exhibited to him a photograph of Booth, but he said he [Mudd] could not recognize him from that photograph.

Pitman, p. 169.

Col H.H. Wells

I then exhibited what was said to be a photograph of Booth; and he said, that, from the photograph, he could not recognize him.

Poore, Vol I, p. 284

Look at that curious difference between the Pitman and Poore transcript. Why I do declare, Col. Wells' testimony would not be perjury even if he knew the photograph was not of John Wilkes Booth, but of Edwin Booth, or even a little green man from Mars.

Now look at the closing argument of prosecutor John A. Bingham.

He [Mudd] further stated to this witness that he returned to his own house about four o'clock in the afternoon; that he did not know this wounded man/ said he could not recognize him from the photograph which is of record here, but admitted that he had met booth some time in November, when he had some conversation with him about lands and horses; that booth had remained with him that night in November, and on the next day had purchased a horse.
Pitman, page 400.

Look at that curious phrasing: "from the photograph which is of record here." I do declare that Mr. Bingham made a truthful argument, even if the picture was that of Edwin Booth. Why, even if Bingham knew for a fact that Exhibit No. 1 was a picture of Edwin Booth, he did not misrepresent it.

A note on Poore and Pitman.

Boston newspaper journalist Ben Perley Poore published the second version. Using the transcripts published daily in the Intelligencer; Poore published the entire transcript in three volumes containing 1,584 pages. Poore released two volumes immediately but didn't publish the third until 1866....
Pitman, the originator of the trial transcript, was the last to publish. Hes version was an abridged, 421-page hardback edition released in November of 1865....
The three versions differ in several ways. The first two, by Petersen and Poore, were copied from the daily newspaper accounts and lack editing of any sort. ... Pitman carefully edited the 4,900-plus pages of hand-transcribed testimonyh and collated it by defendant and indexed the arranged testimony by name, date, and whether the witness was a prosecution or defense witness, then gave a one-line summary of the subject of the testimony....
Pitman, more often than not, merges the witnesses' responses to multiple questions by the prosecutors and defense attorneys, summarizing them into a single response.
The Trial, edited by Edward Steers, Jr., 2003, introduction by Edward Steers, Jr., at page XIV-XV

And let's look at the Exhibit List:

Exhibit No. 1 is listed as "Booth's portrait."

Why, I do declare, that is legally accurate whether the portrait is one of John Wilkes Booth, Edwin Booth, Junius Brutus Booth, or Shirley Booth.

[Edward Steers, Jr.] Mr. Bennett's distortion of Lincoln's "racial" policy is not restricted to Blacks. An excellent example of Bennett's style of making "white of black and black of white" is his account of Lincoln's actions regarding the Sioux Indian uprising in Minnesota. In August 1862, hostilities broke out between the Sioux nation in Minnesota and settlers of that state. When the fighting ended, over 400 white settlers were dead. The army captured over 1,500 Indian prisoners, including 1,000 women and children. A military commission was set up to try those Indians accused of atrocities. In the end, 303 Indians were sentenced to hang. Lincoln objected to what he viewed as wholesale slaughter. He wired the commanding officer to stay the executions and forward the "full and complete record of each conviction." He also ordered that any material which would discriminate the most guilty from the least guilty be included with the trial transcripts.

Let's look at what Steers refers to as a "full and complete record."

http://www.lfc.edu/~mackiag/lincoln.html

Case 178: Na-pay-shne
Camp Release opposite
the mouth of Chippewa River, Minn.
The Military Commission met pursuant to the above order
Present
Col Brooks, 6th Regt. to M.V.
Members
Major Bradley, 6th Regt. to M.V.
Capt. Grant, 6th Regt. to M.V.
Capt. Bailey, 6th Regt. to M.V.
Lt. Olin, 3d Regt. to M.V.
Judge Advocate
Adjutant Heard, McPhail's Mounted Rangers
Recorder
The Military Commission was then duly sworn and Na-pay-shne a Sioux Indian was arraigned on the following charges and specifications.
viz --
Charge and specification against Na-pay-shne, a Sioux Indian--- Charge -Participation in the murders, outrages and robberies committed by the Sioux Tribe of Indians on the Minnesota Frontier.
Specification - In this that the said Na-pay-shne, Sioux Indian did join with and participate in the murders, outrages and robberies committed on the Minnesota Frontier by the Sioux Tribe of Indians between the 18th day of August 1862 and the 28th day of September 1862 and particularly in the Battles at Fort, Birch-Coulie, New Ulm and Wood Lake-- Was wounded at New Ulm-- Said he killed nineteen persons.
By order of Col. H. H. Sibley, Brigadier General Commanding
Witnesses -
Wakinya David Faribault Thomas Robertson
Signed - S.H. Fowler. Lt. Coe - State Militia A.A. _______________
Prisoner states-- I was not at the Fort-- I was not at New Ulm-- I had a sore knee and couldn't go.
Thomas Robertson being sworn states-- I heard the prisoner say the morning after the first massacre that ___ (his gun) was old gun, but that he had killed 19 with it-- This was in front of John Moore's house. His wife and children ____ (seen?) at the Beaver Creek Massacre.
Wakinya being sworn says-- I never knew anything about the prisoner.
Prisoner states I never fired my gun off.
And therefore the case being closed the Commission was cleared and proceeded with findings and sentence.
The Military Commission after due deliberation on the foregoing find the prisoner, the said Na-pay-shne, a Sioux Indian as follows --
Guilty of the specification
Guilty of the charge
and sentence him to be hanged by the neck until he is dead.
We certify that the foregoing are the minutes of the proceedings and testimony on the annexed charge, under order No. 55 of Col. H. H. Sibley.
I. V. D. Heard}
Recorder }
[Signed by the five members of the Commission]

Case 238: Ta-hoh-pe-wa-kan
[The complete record of testimony follows. The charge, specification, and order are in a form similar to the case above (178)]
Prisoner states-- I went with a party which pick up things which the whites left behind.
Louis LaBelle being sworn says-- The prisoner was among those who were on horseback in the battle referred to in case 236-- He had a horse and was up on it when I saw him, belonging to the soldiers. (See case No. 236)
[Ta-hoh-pe-wa-kan was found guilty and was sentenced to be hanged.]

Text of Order to General Sibley, St. Paul Minnesota:
"Ordered that of the Indians and Half-breeds sentenced to be hanged by the military commission, composed of Colonel Crooks, Lt. Colonel Marshall, Captain Grant, Captain Bailey, and Lieutenant Olin, and lately sitting in Minnesota, you cause to be executed on Friday the nineteenth day of December, instant, the following names, to wit ... The other condemned prisoners you will hold subject to further orders, taking care that they neither escape, nor are subjected to any unlawful violence.
Abraham Lincoln,
President of the United States"

The Dakota Conflict Trials
by Douglas Linder

A framed photograph of the scene depicted on this homepage, the execution of thirty-eight Sioux on December 26, 1862, used to fascinate me when, as a boy in Mankato, Minnesota, I would visit the Blue Earth County Historical Museum. Apart from its macabre appeal, the picture impressed me because it captured the most famous event in the history of my hometown (easily surpassing in significance the death there of an obscure Vice President who died while changing trains on his way to the Black Hills). The hanging, following trials which condemned over three hundred participants in the 1862 Dakota Conflict, stands as the largest mass execution in American history. Only the unpopular intervention of President Lincoln saved 265 other Dakota and mixed-bloods from the fate met by the less fortunate thirty-eight. The mass hanging was the concluding scene in the opening chapter of a story of the American-Sioux conflict that would not end until the Seventh Calvary completed its massacre at Wounded Knee, South Dakota, on December 29, 1890.

In 1862 the Sioux Nation stretched from the Big Woods of Minnesota to the Rocky Mountains. There were seven Sioux tribes, including three western tribes, collectively called the Lakota, and four eastern tribes living in Minnesota and the eastern Dakotas called the Dakota. About 7,000 members of the four Dakota tribes lived on a reservation bordering what was in 1862 the frontier, the Minnesota River in southwestern Minnesota. The Dakota Conflict (or Dakota War or Sioux Uprising) involved primarily the two southernmost Dakota tribes, the Mdewakantons and Wahpekutes. Tribes consisted of bands, each with a leader or chief. The Mdewakantons, for example, were divided into nine bands. A majority of the 4,000 members of the two northern tribes, the Sissetons and the Wahpetons, were opposed to the fighting. A large number of Sissetons and Wahpetons had been converted both to farming and Christianity, and had both moral objections and strong reasons of self-interest for keeping peace with the whites. In addition to pure-blood Indians, there were many so-called mixed-bloods, the products of relationships between Indians and settlers. A majority of mixed-bloods sided with whites or avoided participation in the Conflict altogether.

A decade before the Dakota Conflict, the Minnesota Territory, stretching from the upper Mississippi to the Missouri River, was still mostly Indian country. The conifer forest and lakes of Northern Minnesota belonged to the Ojibway (or Chippewa), while the deciduous forests and prairie of southern Minnesota was shared by the Dakota and a much smaller number of Winnebago. In 1851, however, the Dakota by treaty agreed to give up most of southern Minnesota. The land was ceded to the United States in return for two twenty-mile wide by seventy-mile long reservations along the Minnesota River and annuity payments totaling $1.4 million dollars over a fifty-year period. Seven years later, in exchange for increased annuity payments, the Dakota ceded about half of their reservation land.

The causes of the the Dakota Conflict are many and complex. The treaties of 1851 and 1858 contributed to tensions by undermining the Dakota culture and the power of chieftains, concentrating malcontents, and leading to a corrupt system of Indian agents and traders. Annuity payments reduced the once proud Dakota to the status of dependents. They reduced the power of chiefs because annuity payments were made directly to individuals rather than through tribal structures. They created bitterness because licensed traders sold goods to Indians at 100% to 400% profit and frequently took "claims" for money from individual Dakota paid out of tribal funds. No effective means of legal recourse was available to wronged Dakota, leading some Dakota to talk of another option open to them: robbery and violence. The fact that the Dakota people were squeezed into a small fraction of their former lands made it easy, according to Minnesota historian William Folwell, "for malcontents to assemble frequently to growl and fret together over grievances."

Annuity payments for the Dakota were late in the summer of 1862. An August 4, 1862 confrontation between soldiers and braves at the Upper Agency at Yellow Medicine led to a decision to distribute provisions on credit to avoid violence. At the Lower Agency at Redwood, however, things were handled differently. At an August 15, 1862 meeting attended by Dakota representatives, Indian Agent Thomas Galbraith, and representatives of the traders, the traders resisted pleas to distribute provisions held in agency warehouses to starving Dakota until the annuity payments finally arrived. Trader Andrew Myrick summarized his position in the bluntest possible manner: "So far as I am concerned, if they are hungry, let them eat grass." Unbeknownst to those gathered at the Lower Agency, the long delayed 1862 annuity payments were already on their way to the Minnesota frontier. On August 16, a keg with $71,000 worth of gold coins reached St. Paul. The next day the keg was sent to Fort Ridgely for distribution to the Dakota. It arrived a few hours too late to prevent an unprecedented outbreak of violence.

On Sunday, August 17, four Dakota from a breakaway band of young malcontents were on a hunting trip when they came across some eggs in a hen's nest along the fence line of a settler's homestead. When one of the four took the eggs, another of the group warned him that the eggs belonged to a white man. The first young man became angry, dashed the eggs to the ground, and accused the other of being afraid of white men, even though half-starved. Apparently to disprove the accusation of cowardice, the other Dakota said that to show he was not afraid of white men he would go the house and shoot the owner. He challenged the others to join him. Minutes later three white men, a white woman, and a fifteen-year old white girl lay dead.

Big Eagle, a Dakota Chief, recounted what happened after the young men reached Chief Shakopee's camp late on the night of August 17:

The tale told by the young men created the greatest excitement. Everybody was waked up and heard it. Shakopee took the young men to Little Crow's house (two miles above the agency), and he sat up in bed and listened to their story. He said war was now declared. Blood had been shed, the payment would be stopped, and the whites would take a dreadful vengeance because women had been killed. Wabasha, Wacouta, myself and others still talked for peace, but nobody would listen to us, and soon the cry was "Kill the whites and kill all these cut-hairs who will not join us." A council was held and war was declared. Parties formed and dashed away in the darkness to kill settlers. The women began to run bullets and the men to clean their guns....

At this time my village was up on Crow creek, near Little Crow's. I did not have a very large band -- not more than thirty or forty fighting men. Most of them were not for the war at first, but nearly all got into it at last. A great many members of the other bands were like my men; they took no part in the first movements, but afterward did. The next morning, when the force started down to attack the agency, I went along.... The killing was nearly all done when I got there. Little Crow was on the ground directing operations. I saw all the dead bodies at the agency. Mr. Andrew Myrick, a trader, with an Indian wife, had refused some hungry Indians credit a short time before when they asked him for provisions. He said to them; "Go and eat grass." Now he was lying on the ground dead, with his mouth stuffed full of grass, and the Indians were saying tauntingly: "Myrick is eating grass himself." When I returned to my village that day I found that many of my band had changed their minds about the war, and wanted to go into it. All the other villagers were the same way.

Events moved quickly. Forty-four Americans were killed and another ten captured in the first full day of fighting in and around the Lower Agency at Redwood. Nearly two hundred additional whites died over the next few days as Dakota massacred farm families and attacked Fort Ridgely and the town of New Ulm. Panicking settlers fled eastward from twenty-three counties, leaving the southwestern Minnesota frontier largely depopulated except for the barricaded fortifications at Fort Ridgely and New Ulm. On August 23, a second Dakota attack on New Ulm left most of the town burned to the ground, and 2,000 refugees, mostly women, children, and wounded men, set off in wagons and on foot for Mankato, thirty miles away. On August 26, three days after Governor Alexander Ramsey appointed Colonel Henry Sibley, a former governor, to command American forces that would attempt to suppress the uprising, Sibley advanced from the east with 1,400 soldiers toward Fort Ridgely. The next day, Sibley and his men succeeded in lifting the Dakota siege at Fort Ridgely, and the second phase of the Dakota Conflict-- an organized American military effort to defeat and punish the Sioux-- began.

The Dakota offensive continued to achieve success through early September. At dawn on September 2 at Birch Coulee Creek, Dakota warriors attacked a 170-man party of soldiers sent out to bury the bodies of settlers, killing twenty soldiers and ninety horses. Other Dakota attacks were made at Acton, Hutchinson, and Fort Abercrombie. Little Crow is generally acknowledged to have been the leader of the warring Dakota, but Chiefs Mankato, Big Eagle, Shakopee and others played significant leadership roles.

By mid-September, the initiative had shifted to the American forces. On September 23, in the decisive Battle of Wood Lake, 700 to 1,200 Dakota warriors were forced to withdraw after suffering heavy casualties. Meanwhile, divisions among Dakota on the war increased. To the north, chiefs of the Upper Agency Sisseton and Wahpeton continued to oppose the fighting. Chiefs Red Iron and Standing Buffalo threatened to fire upon any of Little Crow's followers that entered their territory. During the Wood Lake Battle, "friendlies" (Dakota opposed to the war) were able to seize control of white captives and bring them into their own camp. In late September, the friendlies released 269 white prisoners to the control of Colonel Sibley. Penned in to the north and south, facing severe food shortages and declining morale, many Dakota warriors chose to surrender. Together with those taken captive, the ranks of Dakota prisoners soon swelled to 1,250. A decision had to be made soon what to do with them. On September 28, 1862, Colonel Sibley appointed a five-member military commission to "try summarily" Dakota and mixed-bloods for "murder and other outrages" committed against Americans. Whether Sibley had authority to appoint such a commission is a matter of substantial dispute. The commission was convened immediately, meeting in La Bathe's log kitchen near Camp Release. Sixteen trials were conducted the first day, convicting and sentencing to death ten prisoners and acquitting another six. Over the six weeks that followed, the military court would try a total of 393 cases, convicting 323 and sentencing 303 to death by hanging. Reverend Stephen Riggs, a man who spoke Dakota and was not unsympathetic to their plight, reportedly served as a virtual grand jury, gathering evidence and witnesses.

The trials were quick affairs, getting quicker as they progressed. The commission heard nearly forty cases on November 3, the last day it met. The commission believed that mere participation in a battle justified a death sentence, so in the many cases, perhaps two-thirds of the total, where the prisoner admitted firing shots it proceeded to a guilty verdict in a matter of a few minutes. Somewhat more deliberation was required for trials in which the charge was the murder or rape of settlers, because admissions were much rarer in these cases. After the defendant gave whatever response he cared to make to the charge, prosecution witnesses were called. Where prosecution witnesses contradicted the testimony of the defendant, the commission almost invariably found the prisoner to be guilty. The best witnesses for the prosecution turned out to be some of the accused. A mixed-blood named Godfrey, or Otakle, who was the first prisoner tried, gave evidence in fifty-five cases and was described by Recorder Isaac Heard as "the greatest institution of the commission." With his "melodious voice" and "remarkable memory" he seemed to Heard "specifically designed as an instrument of justice."

Critics have challenged the fairness of the trials. In addition to raising concerns about the sufficiency of the evidence supporting convictions and the rapidity of trials, critics have charged commission members of harboring prejudice against the defendants. the critics may have a point. The commission members, though men of integrity, were also military men whose troops had recently been under attack by the very men whose cases they were judging. Critics of the trials also have argued that the commission was wrong to treat the defendants as common criminals rather than as the legitimate belligerents of a sovereign power. Finally, they have suggested that the trials should have been conducted in state courts using normal rules of criminal procedure rather than by military commission.

Colonel Sibley may well have viewed summary trials by a commission as necessary to avoid vigilante justice by angry mobs of Minnesotans. As it was, the 303 condemned prisoners were attacked in New Ulm on November 9 as they being transported to Mankato to await their execution. Another planned attack of the prison camp by several hundred armed local citizens on December 4 was foiled by soldiers guarding the Dakota prisoners.

The final decision on whether to go ahead with the planned mass execution of the 303 Dakota and mixed-bloods rested with President Lincoln. General John Pope, having been sent to Minnesota after his defeat at Bull Run, campaigned by telegraph for the speedy execution of all the condemned. Virtually all of the editorial writers, politicians, and citizens of Minnesota agreed with Pope. One of the few who did not was Henry Whipple, the Episcopal Bishop of Minnesota. Whipple traveled to Washington to meet with Lincoln and discuss the causes of the Dakota Conflict. By Lincoln's own account, the visit impressed him deeply and he pledged to reform Indian affairs. Lincoln knew well that the lust for Dakota blood could not be ignored; to prevent any executions from going forward might well have condemned all 303 to death at mob hands. Lincoln asked two clerks to go through the commission's trial records and identify those prisoners convicted of raping women or children. They found only two. Lincoln then asked his clerks to search the records a second time and identify those convicted of participating in the massacres of settlers. This time the clerks came up with the thirty-nine names included in Lincoln's handwritten order of execution written on December 6, 1862.

In Mankato, at ten o'clock on December 26, thirty-eight (one person was reprieved between the date of Lincoln's order and the execution) prisoners wearing white muslin coverings and singing Dakota death songs were led to gallows in a circular scaffold and took the places assigned to them on the platform. Ropes were placed around each of the thirty-eight necks. At the signal of three drumbeats, a single blow from an ax cut the rope that held the platform and the prisoners (except for one whose rope had broke, and who consequently had to be restrung) fell to their deaths. A loud cheer went up from the thousands of spectators gathered to witness the event. The bodies were buried in a mass grave on the edge of town. Soon area doctors, including one named Mayo, arrived to collect cadavers for their medical research.

In April, 1863, Congress enacted a law providing for the forcible removal from Minnesota of all Sioux. Most Dakota, after suffering through a harsh Minnesota winter at a Fort Snelling encampment, moved to South Dakota. Prisoners previously held at Mankato were transported on the steamboat "Favorite" down the Mississippi to Camp McClellan, near Davenport, Iowa.

On March 22, 1866, President Andrew Johnson ordered the release of the 177 surviving prisoners. They were moved to the Santee Reservation near Niobrara, Nebraska.

Little Crow was not among the Dakota tried by the military commission. He, along with 150 or so of his followers, fled to present-day North Dakota and Canada. In June 1863, Little Crow returned to Minnesota on a horse-stealing foray. On July 3, a farmer shot Little Crow while the Dakota chief picked berries with his son near Hutchinson.

The farmer received a $500 reward from the state.

The Sioux Wars went on for many years. A military expedition carried the fighting into the Dakota Territory in 1863 and 1864. As the frontier moved westward, new fighting erupted. Finally, in 1890 at Wounded Knee, the generation of warfare that began at Acton, Minnesota in August of 1862 came to an end.

FARIBAULT, September, 1862
H.B. Whipple
Bishop of Minnesota

THE DUTY OF CITIZENS CONCERNING THE INDIAN MASSACRE

* * *

The voice of this whole nation has declared that the Indian Department is the most corrupt in the Government. Citizens, editors, legislators, heads of the departments, and President alike agree that it has been characterized by inefficiency and fraud. The nation, knowing this, has winked at it. We have lacked the moral courage to stand up in the fear of God and demand a reform. More than all, it was not our money. It was a sacred trust confided to us by helpless men, where common manliness should have blushed for shame at the theft. . . .

It hardly needed any act of wrong to incite savage natures to murderous cruelty. But such instances were not wanting. Four years ago the Sioux sold the Government part of their reservation, the plea for the sale being the need of funds to aid them in civilization. . . . Of ninety-six thousand dollars due to the Lower Sioux not one cent has ever been received. All has been absorbed in claims except eight hundred and eighty dollars and fifty-eight cents, which is to their credit on the books at Washington. Of the portion belonging to the other Sioux, eighty-eight thousand, three hundred and fifty one dollars and twelve cents were also taken for claims. . . . For two years the Indians had demanded to know what had become of their money, and had again and again threatened revenge unless they were satisfied. Early last spring the traders informed the Indians that the next payment would be only half the usual amount, because the Indian debts had been paid at Washington. They were in some instances refused credit on this account.

It caused deep and widespread discontent. The agent was alarmed, and as early as May he wrote me that this new fraud must bring a harvest of woe, saying "God only knows what will be the result." In June, at the time fixed by custom, they came together for the payment. The agent could give no satisfactory reason for the delay. There was none to give. The Indians waited at the Agencies for two months, dissatisfied, turbulent, hungry, and then came the outbreak. . . . The money reached Fort Ripley the day after the outbreak. A part of the annuity had been taken for claims and at the eleventh hour, as the warrant on the treasury shows, as made up from other funds to save an Indian war. It was too late! Who is guilty of the causes which desolated our border? At whose door is the blood of these innocent victims? I believe that God will hold the nation guilty.

Our white race would not be proof against the corrupt influences which have clustered round these heathen. It would make a Sodom of any civilized community under heaven.

The leaders in the massacre were men who have always been the pliant tools of white men. When men like Little Crow and Hole-in-the-Day desired to open their budget of griefs, they could cite wrongs enough to stir savage blood to vengeance.

H.B. Whipple
Bishop of Minnesota
March 6, 1862

TO THE PRESIDENT OF THE UNITED STATES.

* * *

The Indian agents who are placed in trust of the honor and faith of the Government are generally selected without any reference to their fitness for the place. The Congressional delegation desires to award John Doe for party work, and John Doe desires the place because there is a tradition on the border that an Indian agent with fifteen hundred dollars a year can retire upon an ample fortune in four years.

The Indian agent appoints his subordinates from the same motive, either to reward his friends' service, or to fulfil the bidding of his Congressional patron. They are often men without any fitness, sometimes a disgrace to a Christian nation; whiskey-sellers, bar-room loungers, debauchers, selected to guide a heathen people. Then follow all the evils of bad example, of inefficiency, and of dishonesty, ---- the school a sham, the supplies wasted, the improvement fund or curtailed by fraudulent contracts. The Indian, bewildered, conscious of wrong, but helpless, has no refuge but to sink into a depth of brutishness. There have been noble instances of men who have tried to do their duty; but they have generally been powerless for lack of hearty cooperation of others, or because no man could withstand the corruption which has pervaded every department of Indian affairs.

* * *

The first thing needed is honesty. There has been a marked deterioration in Indian affairs since the office has become one of mere political favoritism. Instructions are not worth the price of the ink with which they are written if they are to be carried out by corrupt agents. Every employee ought to be a man of purity, temperance, industry, and unquestioned integrity. Those selected to teach in any department must be men of peculiar fitnesss, --- patient, with quick perceptions, enlarged ideas, and men who love their work. They must be something better than so many drudges fed at the public crib.

* * *

In all future treaties it ought to be the object of the Government to pay the Indians in kind, supplying their wants at such times as they may require help. This valuable reform would only be a curse in the hands of a dishonest agent. If wisely and justly expended, the Indian would not be as he now is, ---often on the verge of starvation. . . .

* * *

I have written to you freely with tll the frankness with which a Christian bishop has the right to write to the Chief Ruler of a great Christian Nation. My design his not been to complain of individuals, nor to make accusations. Bad as I believe some of the appointments to be, they are the fault of a political system. When I came to Minnesota I was startled at the degradation at my door. I give these men missions; God has blessed me, and I would count every trial I have had as a way of roses if I could save this people.

May God guide you and give you grace to order all things, so that the Government shall deal reghteously with the Indian nations in its charge.

Your servant for Christ's sake,
H.B. WHIPPLE,
Bishop of Minnesota.

LETTER TO THE BOARD OF MISSIONS
"Report on the Moral and Temporal Conditions of the Indian Tribes on Our Western Borders"

In every instance the original cause which led to our recent wars was conduct which would have been regarded as ample grounds for war by any civilized country on earth. The first outbreak was in Minnesota in 1862. These Indians had sold us a country as large as the State of New York, as beautiful as the eye ever rested upon; it had everything which the bounty of God could give for the use of wild men. Fish and wild game made it an Indian's paradise. Of the first sale I know nothing; the Indians said that after the bargain was made, their chiefs were bribed to sign a provision, which gave the larger part of the first payment to certain white men. They say they were then kept for months in a starving condition, until many of their people died; and it was this which made red men say to the Governor, "I will leave these bones of my people on the prairie, and some day the Great Spirit will look the white man in the face and ask him what has become of his red brother." For some time they were left without a reservation, and then denied the one which had been promised to them. In 1858 these Indians sold the Government eight hundred thousand acres of their reservation. The plea was they needed money for civilization. The treaty provided that no debts should be paid except as the Indians should acknowledge in open council. No such open council was ever held. There was a provision inserted in the treaty, --- of which the Indians say they were ignorant, --- which provided that the Secretary of the Interior might use any of their money as he thought best for them. After four years they had received nothing except a lot of useless goods sent to the Upper Sioux. Of the entire amount going to the Lower Sioux for this immense tract of land, all was taken for claims except about eight hundred and sixty-eight dollars. They waited four years; the story of our broken faith was often the subject of angry discussion. Old Wabasha said to me: "My father, four years ago I went to Washington. Our Great Father said to us, "If you live as white men I will help you more than I have ever done.' Four winters have passed and the fifth is nigh. It is so long a way to Washington the agents forget their Father's words, for they never do as he told us. You said you were sorry my young men had these foolish dances. I am sorry. The reason their wild life clings to them like a blanket is that their hearts are sick. The Indian's face is turned to the setting sun, and he thinks these are long journeys for himself and children. If your great Council at Washington would do as they promised, our people would believe them. The good Indian would become like his brother, and the bad Indian go away. I have heard of your words for my poor people. You have none of my blood in your veins, and I have none of yours; but you have spoken as a father speaks for his child whom he loves well. Often, when I sit alone in my tipi, your words will come back to me, and be like music to my heart."

* * *