Q. Anybody could have written in it, could they?

A. Yes, sir.

Q. You do not know, then, whether that name was written there for two years?

A. No, sir.

Q. Look along on any leaf of that register and tell us whether or not there are vacant lines there on which could have been written half a dozen names? A. (After examination :) Yes, sir.

Q. You have told us where the book lay and when it was put there, and that you did not know that that name was on it. After it was put in that place, where you say it was open to everybody, will you tell the court and jury whether it might not have been taken away and been gone for months? (Objected to by Mr. Bradley. Question withdrawn.)

Q. I will ask you whether there were months that you did not see it and know whether it was gone or not?

A. It lay where it could be seen every day, but it might not have been noticed; it was not in use.

Q. If it had been gone for months would you have noticed it?

A. I might and might not; I had no use for it.

Q. It was in a public place, under the desk, and your attention was not called to it?

A. No, sir. There were envelope boxes and another register there with it. Q. Will you tell us when anybody first came to ask you about that register? A. Mr. Bradley was the first man.

Q. When was that?

A. I cannot tell here; I could at the hotel, as I have a memorandum of it. It was a short time before the trial commenced.

Q. In what month?

A. Last month-June, I think.

Q. Do you think it was the early part?

A. I should think so. (After a pause.) My recollection now is that it was the 23d of May.

Q. Will you tell us what the man said to you who came there to get the register?

A. I cannot recollect all he said.

Q. Tell all you can recollect.

WITNESS. Which man do you mean?

Mr. PIERREPONT. Whoever it was that came to get the register.

WITNESS. Mr. Bradley, jr., it was.

Mr. PIERREPONT. Well, tell us all he said.

A. He subpoenaed me.

Q. Did he say anything to you about ever having examined that book before?

A. He said he had been there twice unbeknown to me.

Q. Did he tell you when he had been there twice unbeknown to you,

amined that book?

A. No, sir.

Mr. BRADLEY, Sr. Mr. Clerk, will you now swear my son?

JOSEPH H. BRADLEY, Jr., sworn and examined.

By Mr. BRADLEY, Sr.:

and ex

Q. Will you state when you first visited Canandaigua, and examined that register?

A. From information which I received from the prisoner, who was confined in jail, I proceeded to Canandaigua, going from the city of New York, and arrived there on Saturday, the 16th day of March, 1867. I proceeded to the Webster House direct. I am not quite sure whether it was the 15th day of

March, or a day earlier or later, but at all events, I arrived there, and proceeded to register my name. In looking around the office, I found under a desk there this register, which I took the liberty of opening, and turned at once to the date of the 15th of April, to look for the name of John Harrison, and found the identical name there registered.

Q. Was the book in the same condition then as now?

A. In precisely the same condition. I made inquiries in regard to it of the clerk in the office. He was not the same one who was there in 1865, that one having, as I was informed, gone to open a public house for himself. Without stating anything as to the object of my visit, I staid at the hotel as long as it suited me, and then proceeded to another point in pursuit of this investigation. In the month of May, on a second trip in search of information on this subject, I returned to Canandaigua in anticipation of the trial which was fixed for the 20th of that month. I arrived there the night of Wednesday, the 22d, or Thursday, the 23d. I again looked at the book, which was just where I had left it, and found it in the same condition. I made my errand known to the clerk of the hotel, and ascertained that Mr. Chamberlin was out of town, having gone to a house-warming of a friend of his, who had opened a hotel at the head of the lake. He returned the next day. I then had a private interview with him, and stated to him the object of my visit. He sent and had the book brought up into the room where we were. I then directed his attention to this entry, and afterwards served the process of subpoena upon him to attend with that book at this court. That is all I know upon the subject, except that I know the entries are precisely the same now as they were then in March last, when I first saw it. I got all my information from the prisoner.

Mr. BRADLEY, Sr. Mr. Clerk, will you now please swear me?

Mr. PIERREPONT said if it was in it then, it could not have been altered since. What possible use, therefore, could there be in swearing Mr. Bradley, as he supposed he proposed to be sworn on this point.

Mr. MERRICK insisted on Mr. Bradley being sworn.

Mr. PIERREPONT remarked that if the gentlemen insisted upon it, they could not help it.

Mr. JOSEPH H. BRADLEY, Sr., was then sworn and examined.

The witness said: Mr. Failing delivered that book to me some three weeks ago. It has never been out of my possession until to-day. It is in precisely the same condition now that it was then.

Mr. BRADLEY, after retirng from the witness stand, inquired if the Court had any difficulty about coming to a conclusion.

JUDGE FISHER remarked that he had.

Mr. BRADLEY begged to call the attention of the Court to the evidence in the case. The government had taken the trouble to prove that certainly from the 18th of April, 1865, to this day the prisoner could not have been in Canandaigua, and the defense had proved the entry in that book to be in the handwriting of the prisoner. Could he have made it after the 18th-up to this day? Mr. PIERREPONT said that he could have made it in the jail here without the least difficulty, from the evidence already given in the case. The witness Chamberlin had stated it might have been away two months and he not have known it. There was no difficulty whatever about it. They were not suggesting now nor had they suggested that the counsel for the defence had anything to do with any such thing, and therefore the great effort to repel an intimation of this kind seemed to be quite uncalled for.

The COURT thought that when a record of the description of this book was offered in evidence there ought to be some evidence accompanying it, showing the fact that some party came there and made an entry at the time this is pure ported to have been made. Two years and some months had elapsed since that time this entry purports to have been made, and they did not know where the

prisoner was all that time. It was possible, though he did not wish to be understood as intimating any opinion on the subject, that the entry might have been made after the 15th of April and before the 17th of September, the day when he is said to have sailed from Canada for Europe. That was the question that presented itself to his mind.

Mr. BRADLEY reminded the court of the evidence given by the government, that while in Canada, up to the time he sailed, he was kept in concealment.

The COURT said that might have been so and yet he have been in this country. He was under a great misapprehension if there was any evidence to show a negative of the fact that he never was in the United States after the 15th of April.

Mr. BRADLEY said that having proved the handwriting, he thought the weight of the evidence was a matter for the jury. He offered it as tending to show that the entry was made by the prisoner in Canandaigua on the date mentioned in the book.

The Court here examined the book, and Mr. Bradley called attention to the fact that several entries had been torn from the check or night book, and that it had been packed away until it was placed in the hands of the government.

Mr. MERRICK argued that the prisoner could not have written the entry after the 18th of April, as Surratt was out of the country, and remarked that it could not have been done since his arrival on board the ship in February last, for the prisoner had been confined in jail, and prohibited from intercourse with the outside world. He was debarred by the warden from the use of pen and ink, and the Court had ordered that no one should visit him.

Judge FISHER. I never issued an order of the kind, for I never thought it necessary to do so. I have always thought a prisoner's friends had a right to visit him while in confinement.

Mr. MERRICK stated that the prisoner's counsel had requested the court to give orders admitting parties to visit the prisoner, because there were certain members of Congress prowling around the jail desirous to see the prisoner for bad purposes, and the counsel did not wish them or other persons who desired to see him for bad purposes to go there.

The COURT said that something might have been said on the subject, but he was sure that he had given no such order, nor said anything that could be so construed.

Mr. MERRICK went on to argue that on principles of common sense the book should be admitted. It was as much entitled to admission as was the pockethandkerchief offered by the prosecution, with Surratt's name on it.

Mr. PIERREPONT said this was the first time he had ever heard a person, who claimed to be educated as a lawyer, get up in a court of justice and seriously argue that a man could make evidence for himself, and then bring it in for the purpose of securing his acquittal; that it was the same thing when a man undertook to bring in his own writing, his own acts, as when the government undertook to bring in such against him. Anybody who had the slightest particle of common sense in his head knew perfectly well that if that entry could be introduced in evidence, as in the prisoner's handwriting, every word that it should say could be introduced. Suppose, then, there stood on that register such an entry as this: "John Harrison Surratt, Washington city. Wilkes Booth murdered the President. I thank God I never had anything to do with it, and never heard of it.". Such would have to be admitted if the name could be. See what the effect would be. If such were allowed, any murderer, any assassin, could acquit himself. Test the case. This murder occurred on the 14th of April, 1865, and, from the testimony in the case, the prisoner at the bar had never left this country until the 17th of September, 1865. From April to September, five months after the murder, did he remain in this country in his various disguises. He knew that his mother had been tried; he knew that his co-conspirators had been tried; and he knew, as the proof is, that some of them

had been executed; and he lay on the border, within twelve hours' ride of Canandaigua, this whole five months, while these things were going on, and he shrinking from the investigation. Why should not he be preparing to defend himself? Why should not he come down in his disguises and make this entry there for the purpose of raising the presumption, if he should be seized and brought to trial, that he was there at the time now claimed? As the court would see, on looking at the register, that there were five or six blank lines on each page, and from the easy access which was had to the book, he could very easily, in his disguise, have gone and made this entry there. He had ample opportunity to do it. If he was not an idiot he would be fixing up such testimony as would help him in his defence when he should be tried, which he anticipated would finally come.

Judge FISHER said that it was past the usual time for adjournment, and he would hold the point over till the next sitting. He ordered that the court now take a recess until Monday morning at 10 o'clock.

The court was opened at 10 o'clock.

MONDAY, July 15, 1867.

The COURT proceeded to deliver his opinion on the question of the admissibility of the Webster House register, offered for the purpose of showing the prisoner to have been in Canandaigua on the 15th of April, 1865. It is as follows:

The register of the Webster House, Canandaigua, offered in evidence when we took a recess on Saturday, cannot be allowed to go to the jury at present. It was proved by the proprietor of the house, who kept it on the 15th April, 1865, to have been the register used by him and turned over by him on Monday, April 17, 1865, to his successor, who swears that he kept the same book lying open on his counter until all the blank leaves were filled up, and then placed it under the counter, where it could have been, without his knowledge, used for any purpose, whether honest or fraudulent. This is just precisely one of the cases which the ancient and well-established rule of evidence, that a prisoner shall not be allowed to manufacture evidence for himself, was intended to meet. It is said that the name "John Harrison," standing on that register for the 15th April, 1865, having been sworn to by Miss Jenkins as the handwriting of Surratt, it ought to be admitted as evidence tending to prove that he was present at Canandaigua at that date. But, as I have just said, it is evidence made by himself, and, although it might be put in evidence against him if in his handwriting, yet it cannot be used as evidence in his favor, just as any diary which he may have kept in his handwriting might be produced against him, but could not be produced in evidence in his behalf.

Besides, the fact, if established beyond all peradventure, that the name “John Harrison" is in the prisoner's handwriting, does not even tend to show that he was in Canandaigua on the 15th April, 1865. The name could as well have been written by him in Canada, or Rome, or Egypt, as in Canandaigua. The book has been at the mercy of anybody for more than two years. It could have gone to Canada and back a hundred times; or the prisoner, during his stay there in Canada, could have gone to the book just as often. The entries below the name of "John Harrison," as well as that entry itself, may as well have been made at any other time as on the 15th April, 1865. It is to guard against just such contingencies as this that the rigid rule of evidence to which I have alluded was established.

If the defence had proved by any credible witness that the entry of the name of "John Harrison" had been made at the hotel in the regular course of business, on the 15th of April, by a person passing under that name, the book might go in evidence as a memorandum of a fact made at the time of its occurrence, and thus proof that the entry was in Surratt's hand would tend to show he was there at that time. It is only as a memorandum, so made, that it is allowed to

speak at all, and it cannot take the character of such memorandum until it be shown that it was so made at the time and place of which it is desired to speak.

Let the principle be once established that such evidence as this register as it now stands is admissible, and the proof of an alibi will be the easiest thing made that could possibly be conceived of. A crime may be committed here, the guilty party may escape to Canada, registering himself in an assumed name wherever he may stop, and will only have to travel back again, write his true name at or near the bottom of the appropriate page of the hotel register wherever he stops on his return, with one or two friends to write their names under his, and the defence of the alibi is complete.

Mr. BRADLEY stated that he was in a condition to show, by evidence, that Surratt was not in the United States between the 18th of April, 1865, and September of that year; that he remained in Canada; and it could be shown that he was in the charge of friends there all the time, and never left there until he went out of the country. He proposed to offer that evidence. Witnesses were on their way who would state those facts; persons of the highest respectability. He reserved an exception to the ruling of the court.

WILLIAM FAILING-examination resumed.

By Mr. BRADLEY:

Q. What was the ordinary railroad route from Elmira going to Albany, and thence to Canada-would it have come through Canandaigua, or not?

A. Yes, sir; most generally it would.

Q. That would be the ordinary route?

A. Yes, sir. There are other routes from Elmira.

Q. Looking at that entry in the register, can you state at or about what time of day the parties reached Canandaigua-I mean Harrison, and the other two parties whose names follow on the register?

Mr. PIERREPONT objected. If the question was made general, and the witness asked what time parties would naturally arrive, he would raise no objection. Mr. BRADLEY. I will then ask the witness this question :

Q. Looking at the entries in that book, and from them, taking the regular course of business, at what time would parties arriving from Elmira reach Canandaigua?

Objected to by Mr. Pierrepont, on the ground that the "book" had nothing to do with it.

The COURT said it seemed to him that the proper question would be: "What time would parties coming from Elmira to Canandaigua, and stopping there, arrive according to the regular course of travel and business?" The book he did not consider at a'l in evidence.

Mr. BRADLEY inquired if the court overruled the question he had put.

The COURT said he did. That he thought the question he had suggested was the proper one.

Mr. BRADLEY reserved an exception; and then requested the reporter to read to the witness the question framed by the court. This being done

The WITNESS said: There were different trains. One train arrived in the forenoon, between 10 and 11 o'clock, and another, I think, but I am not positive about that, arrived in the evening, between 9 and 10 o'clock.

Q. What is the direct route from Canandaigua going to Montreal from New York?

A. There are two or three different routes. One is called a direct route, going from Canandaigua to Rochester, from Rochester across to Coburg, and so on down the Great Western railway.

Q. Going by way of Albany, how?

A. You want to go through Syracuse, Canandaigua, and Auburn.