mean that the blood of an innocent man should rest on his hands for want of a bold, animated defence.

Looking further into the question, Mr. Bradley asked whether the gentleman made the proposition by any authority. What was the proposition? It was so plain that every intelligent mind, not darkened by prejudice so strong as to shut out truth and reason, could not fail to see it. The government had offered proof that Surratt left here on the morning of the 15th, and they could not deny it. And now, when that proposition had been repelled by the defence, they seek to fortify themselves by some other evidence. What was the evidence now sought to be introduced, and which was objected to? First, that there was telegraphic communication between Elmira and Washington at that time. Had not the government offered evidence in chief upon that point by the revelations of McMillan, that Surratt had told him he had telegraphed Booth from Elmira?

The ASSISTANT DISTRICT ATTORNEY. To New York.

Mr. BRADLEY. To New York But where is the telegraph operator? Where are the records of the office? What was the object of undertaking to show now that the telegraph was in operation from Elmira here? What evidence was it to rebut? The learned counsel did not inform him what it was to rebut. And he now called upon any one of the three gentlemen, counsel for the prosecution, or any one of their coadjutors, to state what evidence had been offered which was to be rebutted by proof that the telegraph was open at that time. He waited while the testimony was being given in, supposing it was to be followed by some fact to connect it with this case; that was the reason he did not object at that time.

The learned counsel had remarked that the defence insisted that they must prove the prisoner in Washington on the 14th. Suppose they did insist on that; had it anything to do with the evidence they adopted? They had insisted in argument; but could evidence be brought to rebut the argument when no evidence had been offered on that point which could be rebutted? The question had been decided over and over again that rebutting evidence must be as to some new fact brought out in the defence, and which evidence would not have been evidence in chief.

Mr. PIERREPONT. It might or it might not be.

Mr. BRADLEY repeated that it could not be offered as rebutting evidence, if it could have been evidence in chief. There was no distinction between evidence in chief and rebutting evidence upon the ground taken by the counsel. The test must be, was that evidence admissible as evidence in chief, or was it contradictory of the defence set up?

Mr. PIERREPONT said it might be both.

Mr. BRADLEY. Not both, so far as the authority goes, and so far as any reason he had heard for it, less. The counsel had spoken of the prisoner as attempting to overturn the government. Was this a trial for treason? He agreed that it was a great crime that had been committed, a monstrous crime-that nothing but a madman could have committed it. But was it treason? If it was, then the prisoner should be indicted for treason, and tried by the laws governing treason not by the laws governing cases of homicide. If it was not treason, but a case of murder of a most aggravated character, he still asked what this telegraph comunication had to do with it in reply to any evidence brought by the defence. The learned counsel admitted that the prisoner was certainly here on the 13th and asserted that he was in the city of Washington on the 14th. He conceded that the prisoner was in Elmira on the 13th, and was there as a conspirator engaged in trying to overthrow this government, and set the rebel prisoners free engaged in treason and rebellion. Counsel had offered to demonstrate from what had already been shown in this case that the prisoner was here on the 14th. But he (Mr. Bradley) challenged him to it. He proposed to close

F

the case here, and now, without surrebuttal proof, and challenge the counsel for the prosecution to show the iron chain which linked the prisoner here in the city of Washington, and that he came here from Elmira. He defied him in the strongest terms that tongue could utter. He defied human ingenuity to weld a chain out of the proof they had that would bring the prisoner from Elmira to this city on the morning of the 14th of April. He defied them to weld the chain that could prove him here at all on the 14th of April, unless there had been some new discoveries in arithmetic. He defied human ingenuity to bring that man from Elmira here after ten o'clock, after eight o'clock, after two o'clock, or any hour on the 13th, from Elmira. And he defied them to show by their evidence that he could have been in Elmira in time and have taken any of the trains they had spoken of. They had started him at three o'clock from Montreal, and he defied them to forge any chain which would bring the prisoner to Elmira by ten o'clock or half-past ten o'clock on the morning of the 13th, or before eight o'clock in the evening at the earliest hour. But what had the telegraph to do with all this? Was the telegraph to be used to forge that chain? Counsel had remarked that no reason nor law authorized the conclusion he sought to draw. He wanted to know upon what reason, sense, or law this telegraph was to be used unless it was to be shown that the prisoner came here upon the telegraph, for they could get him here no other way.

Mr. Bradley referred in support of his position to the King against Hilditch and others, 5th Carrington and Payne, 299; and the case of the King against Stimpson, 2d Carrington and Payne, 415, and the case of the United States against Hanway, 3d Wallace, jr., page 159, and the case of the United States against Gardiner, 3d Crawford's Opinions, page 62.

Mr. PIERREPONT said the witnesses by whom what he offered to prove was expected to be sustained were not here, but would be here from New York on the morning train. As the counsel, however, had challenged the prosecution to close the case here, they accepted the challenge.

Mr. BRADLEY remarked, then the case was closed, to which Mr. Pierrepont assented.

the

Mr. JOSEPH H. BRADLEY, Jr., said he desired at this point to make a statement before the court, not in evidence, but in reference to what he deemed as a most unjustifiable and most unprofessional imputation made upon Mr. S. B. Nagle. Gentlemen were well aware that he (Mr. Bradley) went to Canada for purpose of procuring witnesses in this case, and he now stated to the court in the presence of the gentlemen, and trusted they would recollect it here, that be found it necessary to employ aid there for the purpose of discharging the duty devolving upon him in this business. He consulted for that purpose a gentleman of high standing and reputation in the community, Mr. S. B. Nagle, and found that he was an important witness in the case; that he was a professional man; that he was a person qualified in every respect to serve his purpose, namely, procure the attendance of the witnesses from Canada. These witnesses, having no interest in this matter, required to be paid in advance for their attendance fees at this court, and that they should be paid in gold, the only currency recognized in that province. And not only their attendance fees but their personal expenses he made a necessary provision for by depositing with a broker in Montreal the money that he supposed would be necessary to start them on their mission to Washington, and he had supplied from time to time such funds as he was advised were necessary for that purpose. His honor was well aware of the great loss in changing currency into gold. Since then he had recognized the drafts that had been made upon him for the amount necessary for this purpose. Under these circumstances he trusted that the character of a gentleman coming from a foreign country would not be impugned as it had been by the counsel for the government.

Mr. BRADLEY, Sr., remarked that these funds did not come out of the contributions referred to, but in great part out of the pockets of the counsel themselves. Mr. MERRICK said he was sorry to confirm that fact.

Mr. BRADLEY, Sr., proposed that the case now be given to the jury without argument on the other side.

The COURT inquired what was to be done with the question pending with relation to the admissibility of evidence.

Mr. MERRICK also called attention to several other motions in relation to other evidence which were still pending.

Mr. BRADLEY said he was willing to withdraw all these motions, and allow all the evidence referred to to go before the jury, if the case was now to be given to them without argument.

The DISTRICT ATTORNEY, while desirous himself to be relieved from the necessity of arguing the case, said that he would not be doing justice to the jury or discharging his duty to the government if he allowed a case of this importance to go to the jury without argument.

Mr. MERRICK inquired what was the rule in relation to the number of speeches. He understood it to be that not more than two speeches on a side was to be allowed.

The DISTRICT ATTORNEY said that had been the rule.

Mr. MERRICK then inquired whether, if after the opening argument on the part of the prosecution, the defence should decline to reply, that would be an end of the argument, and the case then be sent to the jury.

The COURT said the general rule was that the prosecution had the opening and the close.

Mr. BRADLEY remarked that if the defence made no argument the opening argument on the part of the government would be the opening and the close.

Mr. PIERREPONT said the difficulty about that was, that the District Attorney and himself had made a division of the case in preparation to present it to the jury, and that it would hardly be practicable for one counsel to go through the whole of it.

Mr. BRADLEY said it would be exceedingly unfair to the defence if only a part of the case was to be presented in opening.

Mr. MERRICK added that, if such were to be the practice, the defence would have the right to close.

Mr. PIERREPONT thought no such law as that was ever heard of; counsel for the government might reserve all the case until the close, if they saw fit. The COURT said, in relation to the evidence which had just been argued by the counsel, if the case was to be considered as closed, it was perhaps immaterial whether any decision was given upon it or not, as no evidence had so far been offered to connect it with the case. If, however, a decision was required, as the question presented was of great importance, he would take time to consider it, and give his decision to-morrow morning.

Mr. BRADLEY asked what was the decision of the court in reference to the other question raised as to the number of speeches to be made in summing up. The counsel upon the other side had virtually failed to accept the challenge by insisting upon argument.

The COURT said, then the case was not closed. He understood the challenge to have been made to close the testimony on both sides without any other condition.

Mr. PIERREPONT said he certainly so accepted it.

Mr. BRADLEY replied that his proposition was a distinct one to close the evidence, and allow Mr. Pierrepont to make out his case, reserving a reply if deemed necessary, but not to include four speeches.

After further discussion, the court directed the counsel for the prosecution to proceed with their evidence.

WM. ROBERTS sworn and examined.

By Mr. PIERREPONT:

Q. Were you in Elmira in the month of May or June last?

A. In June I was.

Q. Did you have a conversation with him in reference to the prisoner?

Mr. MERRICK asked that the testimony proposed to contradict should be designated.

Q. Did you go with Mr. Knapp, the deputy marshal, to the store in which Mr. Carroll was engaged?

A. I went with Mr. John Knapp, the city marshal, to the store, where I saw him at work.

Q. Did you tell Deputy Marshal Knapp that the man who came into the store was, in your opinion, a tailor?

(Question objected to and withdrawn.)

Q. Will you state whether you were present there with Mr. Knapp?

(Question objected to. Objection sustained.)

Q. Now state what he said on that occasion in your hearing.

(Question objected to by Mr. Bradley, and withdrawn.)

Q. Did he say it was on the 13th or 14th?

A. He did not mention any date.

Q. Now state what he did say?

(Question objected to by Mr. Bradley, and withdrawn.) Q. What did he say as to dates?

(Question objected to and withdrawn.)

Q. Did he tell you whether it was on the 13th?

A. He was not talking to me; he was talking to Mr. Knapp.
Q. Did he say that to Mr. Knapp in your presence?
A. I did not hear anything about the 13th mentioned.
Q. Did he say whether he could give the dates or not?
(Question objected to by Mr. Merrick and withdrawn.)
Q. Did he say he could not identify the prisoner?
A. There was no conversation of the kind.

Q. Did he state these two dates-the 13th and 14th?

(Question objected to as having been answered. Objection overruled. The witness could be asked categorically as to the two dates. While he had spoken of them together, he had not named them separately.)

Q. Did he say that he saw him on the 13th or 14th?

A. He said that Mr. Ufford was in New York; that was the way he got at it. Q. My question is, did he say the 13th or 14th; that he saw him on those days?

A. When Mr. Knapp asked him about it, he got it out in this way

Q. My question is, did he say he saw him on the 13th or 14th?

A. I do not think he made use of any date.

JOHN WALKER BROWNING, clerk in the office of the commissary of prisoners, sworn and examined.

By Mr. PIERREPONT:

Q. Do you know whether, as late as the 14th of April, 1865, any confederate prisoners were left at Elmira ?

(Question objected to by Mr. Merrick. The court had already ruled upon

that description of evidence. Objection sustained. The evidence of General Lee had been rejected at the instance of the prosecution, and the prosecution could not now, of course, introduce evidence upon the same subject)

Mr. PIERREPONT said his offer was to show that 5,025 rebel prisoners were confined at Elmira on the 14th and 15th of April, 1865. He understood the court to rule it out.

MARGARET A. FITHIAN-residence, corner of Tenth and C streets, Washington, D. C.-sworn and examined.

By the DISTRICT ATTORNEY:

Q. Did you formerly reside in the city of Philadelphia ?

A. Yes, sir.

Q. What was your former husband's name?

A. Alderman Joseph Sherman.

Q. I ask you if you knew John Lee in Philadelphia, and whether, as an officer, your husband transacted business with him?

A. Yes, sir.

Q. Do you know his reputation among the people there for truth and veracity? if so, state whether it was good or bad.

A. I knew his reputation as an officer with my husband.

(The COURT explained that the general reputation was what was called for.) A. It was good at the time he was an officer under my husband.

JOHN E. HATFIELD-residence 339 Tenth street, Washington, D. C.—sworn and examined.

By the DISTRICT ATTORNEY:

Q. How long have you lived in Washington?

A. Since 1863.

Q. What is your occupation?

A. I am doing nothing now.

Q. Did you formerly live in Philadelphia ?

A. Yes, sir; for a number of years.

Q. Did you know John Lee, a witness who was examined here in this case? A. Yes.

Q. How long did you know him?

A. About seventeen or eighteen years.

Q. Did you know his general reputation among the people there for truth and veracity?

A. To my knowledge I have never heard it questioned.

Cross-examined by Mr. BRADLEY :

Q. Did you know him when he was here as one of Baker's detectives?
A. I met with him frequently.

Q. Did you know the officers and men with whom he associated-officers under Colonel O'Beirne ?

A. I have seen him I know with some detectives. I do not know their

names.

WILLIAM PARKER, clerk in the Treasury department-residence, corner of Seventh and F streets, Washington, D. C.-sworn and examined.

By the DISTRIct Attorney:

Q. Where did you formerly reside?

A. In Philadelphia.

Q. Did you know John Lee, a witness who was examined in this trial, who was formerly a magistrate in Philadelphia ?

A. Yes, sir, I did.