Band at the execution

[NHjohn]

Greetings folks,
I play a bass saxhorn in the Federal City Brass Band out of Baltimore, a Civil War re-enactment band, and authored the book "I Was Detailed to the Regimental Band." During the war, most every execution for desertion and serious crimes such as murder, rape etc., was attended by a regimental band usually playing one of the various "Dead March" pieces, as the condemned was led to his spot. I've never found evidence of any band, regimental or otherwise, entertaining the thousand people waiting at the Old Capitol Prison. Since there were hundreds of military present I find it difficult to believe there was no band present also. Does anybody have any evidence of a band?

[BettyO]

Welcome aboard, NHJohn!

While I'm not sure about the Old Capitol Prison, I do know that according to a newspaper article we found back in 2012 that 10 drummer boys played a "somber cadence" at the execution of the Lincoln Conspirators at the Old Arsenal on July 7, 1865.

Here is the post describing this article as well as an MP3 of a military cadence we found entitled "Execution Cadence." It was supposedly one of the easiest pieces to play and while a complete band wasn't used at the execution as far as we know, this may be the last "music" heard by the hapless foursome, Surratt, Powell, Herold and Atzerodt.

http://rogerjnorton.com/LincolnDiscussio...ht=Drummer

[LincolnToddFan]

The idea of providing background music for an execution is just grotesque.

But maybe it's just me.

[BettyO]

The entire idea of hanging people is grotesque as far as I'm concerned!

[Gene C]

I agree, but so is the crime for which the condemned has been convicted of. I guess that's why the punishment is to serve as a deterrent for "normal", or close to normal people; at the same time it is troubling to people who have a kind and gentle nature.
The consequences for such sinful behavior is supposed to be troubling.

[Eva Elisabeth]

IMO killing is the same sinful behavior if done by the hangman. "Thou shalt not kill," and "Vengeance is mine," says God.” Not to mention "accidental" executions of innocent.

[wpbinzel]

Hence, the admonition that it is very difficult for the people of one era to fairly judge the social/moral/political positions of the people of a different era. I suspect that there are many such positions that are in vogue in the early 21st Century that would have been abhorrent and "grotesque" to the people of the mid-19th Century.

For example, and not to launch a debate on capital punishment, but the Bible also says "an eye for eye." And is it is capital PUNISHMENT -- not capital "deterrent." Hence, their view of an execution is likely different than that of today. And, despite the apparent contradiction, it that era, hanging was viewed as the most "humane" form of execution.

I am not sure that adds anything to the original question (and welcome!), but I have never read anything about a band being present at the execution of the Lincoln conspirators.

[Eva Elisabeth]

(06-23-2014 06:45 PM)wpbinzel Wrote:  For example, and not to launch a debate on capital punishment, but the Bible also says "an eye for eye."

In this case it was 8 eyes for two (and especially in Mary Suratt's case - was it an eye for an eye?). However, I don't and didn't want to launch this debate either (and the hangmen sure made and make it somehow compartible to their beliefs, for me personally it wouldn't work), and those were different times.
Just curious - would the sentences in Mary Suratt's and George Atzerodt's case be the same today?

[RJNorton]

(06-24-2014 03:26 AM)Eva Elisabeth Wrote:  Just curious - would the sentences in Mary Suratt's and George Atzerodt's case be the same today?

That is an excellent question, Eva. I do not know the answer. But I will offer one thought as a possible answer. This involves the concept of vicarious liability which Ed Steers and Laurie have discussed.

Laurie once posted the following:

"One big object lesson that I always want anyone from grade 5 on to learn is the concept of "conspiracy" related to current "gang activity" in order to stress "choose your friends wisely because their actions will reflect on you" and the necessity to report criminal intent or actions. This can be done by introducing the term "vicarious liability," which is based on English common law.

Basically, this means that, when one enters into a conspiracy, one is responsible for whatever any member of that conspiracy might do. To bring this home, I appoint a gang of three to rob a bank. One stays outside to drive the getaway car while the other two go into the bank. In the process of robbing the bank, a teller is shot and killed.

Is the thief who did NOT pull the trigger guilty? (yes) Is the one who waited in the car guilty? (yes)
What if the driver chickens out and drives away? (still yes). What if the driver chickens out and alerts the cop on the corner? (no) He attempted to alert the authorities and stop the crime. That's the secret to saving one's own hide. Then relate it to the Lincoln assassination."

So I think if we relate this to the Lincoln assassination I think it's possible all would be held responsible for Booth's actions. All except Mary Surratt were at the "final meeting." And I believe the court heard enough evidence that Mary Surratt was helping Booth until the very end. All knew enough about Booth's plans that they had time to alert the police in an attempt to save the President. Thus, if my understanding of vicarious liability is correct, this was indeed a conspiracy, and all are equally liable for what another did. So I think it could be argued that, in theory, the four could still get the death penalty nowadays, but whether this would really happen, I cannot tell for certain, but my best guess is "no" this would not happen. Perhaps they would get life. The one exception would be Lewis Powell. He intended to kill, but he ended up not killing anyone because his gun misfired, so perhaps his case would be handled more harshly. I am just speculating.

[BettyO]

I have to agree; especially considering vicarious liability. Seems to me that in college, we talked about this in a law class I took, and the professor also stated that this crime was also basically considered treason. The sentence for treason in the US always has been death. So, these four conspirators were considered traitors (and you see them variously described thus in some newspaper accounts) and therefore received the death sentence. I also have always believed that Stanton and the Commission wanted some scapegoats to serve as examples - and these four were tagged as "it!"

[NHjohn]

[quote='BettyO' pid='34656' dateline='1403602578']
I have to agree; especially considering vicarious liability. Seems to me that in college, we talked about this in a law class I took, and the professor also stated that this crime was also basically considered treason. The sentence for treason in the US always has been death. So, these four conspirators were considered traitors (and you see them variously described thus in some newspaper accounts) and therefore received the death sentence. I also have always believed that Stanton and the Commission wanted some scapegoats to serve as examples - and these four were tagged as "it!"
I believe they were considered traitors to their country compounded by the fact that at least one had served in the Confederate Army, come back over to the Union and taken the "Oath of Allegiance," not to take up arms. Washington, DC was still under martial law at the time of Lincoln's murder. It is estimated at least 500 soldiers, north and south were executed during the war, mainly for desertion but usually what I call "desertion plus," such as desertion plus deserting towards enemy lines intending to desert TO the other side, as opposed to just taking off for home; desertion plus a serious crime such as rape, murder, serious assault with a weapon. The execution ceremony was a tradition going back forever to make a show of justice with the hopes this would dissuade future deserters. Soldiers were usually shot, not hung. The thought being they at least deserved a soldier's death. However, hanging was reserved for scoundrels who committed other crimes plus desertion. I would have to disagree that "scapegoat" applies to these conspirators as my understanding of the word. I have some modern day "Confederate" friends who say Wirz, Commandant of Andersonville Prison was a scapegoat, the only man hanged for war-crimes. I also disagree. Now, Mary? maybe... interesting that some soldiers felt Mary would be spared at the last minute. I see in one of the photos of the execution, only three wooden coffins stacked up. Anyway, reference the info. on the drummer, 29th Maine Infantry. Hit the books last night, the 29th Maine was in DC for the Grand Review and kept there for a few days for provost duty before heading south. The regimental makes no specific reference to the trial, guard duty etc. Author, who was an officer in the 29th states the regiment was there 8 days after the review on May 23rd and makes no reference to anybody on detached service, such as Chase, the drummer who claims to have been at the execution. That doesn't mean Chase is lying about being a drummer. Soldiers were sent on detached service all the time.

[wpbinzel]

Today’s federal criminal conspiracy laws, while certainly more detailed, are not unrecognizable from those used in the trial of Lincoln conspirators. The essence is an agreement between two or more persons in furtherance of a criminal enterprise. Under some aspects of the today’s law, the mere existence of criminal conspiracy is sufficient to warrant conviction; however, conviction under 18 U.S.C. 371 for conspiracy to commit a substantive offense requires proof that one of the conspirators committed an overt act in furtherance of the conspiracy. The overt act need not be the substantive crime which is the object of the conspiracy, an element of that offense, nor even a crime in its own right. Moreover, a single overt act by any of the conspirators in furtherance of plot will suffice.

Criminal enterprises may involve one or many conspiracies. In an analogy suggested by the U.S. Supreme Court, when separate spokes meet at the common hub they can only function as a wheel if the spokes and hub are enclosed within a rim. When several criminal enterprises overlap, they are one overarching conspiracy or several overlapping conspiracies depending upon whether they share a single unifying purpose and understanding—one common agreement. That would certainly apply to all who knew of Booth’s change in tactics (i.e., murder instead of abduction); and would also suggest that an agreement to assault the President with the potentially lethal force necessary to kidnap him would constitute a “common agreement” with the use of lethal force to murder him. While that may be subject to debate, at least the argument can be made.

In determining whether they are faced with a single conspiracy or a “rimless collection of overlapping schemes,” the courts will look for the existence of a common purpose; interdependence of various elements of the overall play; and overlap among the participants. Interdependence is present if the activities of a defendant charged with conspiracy facilitated the endeavors of other alleged co-conspirators or facilitated the venture as a whole.

If this common agreement exists, it is of no consequence that a particular conspirator joined the plot after its inception as long as he joined it knowingly and voluntarily. Nor does it matter that a defendant does not know all of the details of a scheme or all of its participants, or that his role is relatively minor.

Conspiracy is a crime which begins with a scheme and may continue on until its objective is achieved or abandoned. The liability of individual conspirators continues on from the time they joined the plot until it ends or until they withdraw. The want of an individual’s continued active participation is no defense as long as the underlying conspiracy lives and he has not withdrawn. An individual who claims to have withdrawn bears the burden of establishing either that he took some action to make his departure clear to his co-conspirators or that he disclosed the scheme to the authorities.

As Roger noted in his discussion of vicarious liability, anyone who “aids, abets, counsels, commands, induces, or procures” the commission of a federal crime by another is punishable as a principal, that is, as though he had committed the offense himself (18 U.S.C. 2). If the other agrees and an overt act is committed, they are conspirators, each liable for conspiracy and any criminal act committed to accomplish it. If the other commits the offense, they are equally punishable for the basic offense.

[I apologize for the length of this post, but lawyers can never say in few words when many more will do; and I thought it to be an opportunity to add to the understanding of the core concepts of federal criminal conspiracy law. Most of the above comes from an excellent overview prepared by Charles Doyle of the Congressional Research Service, a division of the Library of Congress. Mr. Doyle’s complete overview with citations may be found at: http://fas.org/sgp/crs/misc/R41223.pdf ]

[NHjohn]

(06-24-2014 10:31 AM)wpbinzel Wrote:  Today’s federal criminal conspiracy laws, while certainly more detailed, are not unrecognizable from those used in the trial of Lincoln conspirators. The essence is an agreement between two or more persons in furtherance of a criminal enterprise. Under some aspects of the today’s law, the mere existence of criminal conspiracy is sufficient to warrant conviction; however, conviction under 18 U.S.C. 371 for conspiracy to commit a substantive offense requires proof that one of the conspirators committed an overt act in furtherance of the conspiracy. The overt act need not be the substantive crime which is the object of the conspiracy, an element of that offense, nor even a crime in its own right. Moreover, a single overt act by any of the conspirators in furtherance of plot will suffice.

Criminal enterprises may involve one or many conspiracies. In an analogy suggested by the U.S. Supreme Court, when separate spokes meet at the common hub they can only function as a wheel if the spokes and hub are enclosed within a rim. When several criminal enterprises overlap, they are one overarching conspiracy or several overlapping conspiracies depending upon whether they share a single unifying purpose and understanding—one common agreement. That would certainly apply to all who knew of Booth’s change in tactics (i.e., murder instead of abduction); and would also suggest that an agreement to assault the President with the potentially lethal force necessary to kidnap him would constitute a “common agreement” with the use of lethal force to murder him. While that may be subject to debate, at least the argument can be made.

In determining whether they are faced with a single conspiracy or a “rimless collection of overlapping schemes,” the courts will look for the existence of a common purpose; interdependence of various elements of the overall play; and overlap among the participants. Interdependence is present if the activities of a defendant charged with conspiracy facilitated the endeavors of other alleged co-conspirators or facilitated the venture as a whole.

If this common agreement exists, it is of no consequence that a particular conspirator joined the plot after its inception as long as he joined it knowingly and voluntarily. Nor does it matter that a defendant does not know all of the details of a scheme or all of its participants, or that his role is relatively minor.

Conspiracy is a crime which begins with a scheme and may continue on until its objective is achieved or abandoned. The liability of individual conspirators continues on from the time they joined the plot until it ends or until they withdraw. The want of an individual’s continued active participation is no defense as long as the underlying conspiracy lives and he has not withdrawn. An individual who claims to have withdrawn bears the burden of establishing either that he took some action to make his departure clear to his co-conspirators or that he disclosed the scheme to the authorities.

As Roger noted in his discussion of vicarious liability, anyone who “aids, abets, counsels, commands, induces, or procures” the commission of a federal crime by another is punishable as a principal, that is, as though he had committed the offense himself (18 U.S.C. 2). If the other agrees and an overt act is committed, they are conspirators, each liable for conspiracy and any criminal act committed to accomplish it. If the other commits the offense, they are equally punishable for the basic offense.

[I apologize for the length of this post, but lawyers can never say in few words when many more will do; and I thought it to be an opportunity to add to the understanding of the core concepts of federal criminal conspiracy law. Most of the above comes from an excellent overview prepared by Charles Doyle of the Congressional Research Service, a division of the Library of Congress. Mr. Doyle’s complete overview with citations may be found at: http://fas.org/sgp/crs/misc/R41223.pdf ]

And if the conspiracy is conspiracy to commit capital murder, then the punishment is the same as the actual act of capital murder, yes? Death by hanging. Death, a not uncommon occurrence during the Civil War at 600,000+ with many families losing all their sons, towns, most of the young men who enlisted from that town in one infantry company. And as stated, around 500 soldiers executed for desertion. Desertion was a common crime, and execution a common punishment. Our recent deserter, Sgt. Bergdahl would be hung already. Today we give him medical treatment, an investigation by a two star general and he'll probably get "time served" with the Taliban. Assassination of the President in 1865? The first assassination? Shocking, horrendous. Why wouldn't conspirators and assassins by hung? I'm amazed more of those convicted for aiding the conspirators weren't hung, and didn't make more of a show of the execution. The powers that be must have still been fearful this plot extended way beyond these conspirators and nobody knew what Confederate elements were still out there ready to free these people. The conspirators were already in custody before Gen. Joe Johnston surrendered to Gen. Sherman in North Carolina, April 26, 1865, and the last battle is generally accepted to be Palmito Ranch, Texas, May 13, 1865, which was during the trial. Nobody knew it was the last battle of course. I'm also wondering why Lincoln's so-called body guard, John Parker wasn't charged with anything or disciplined?

[NHjohn]

[quote='BettyO' pid='34656' dateline='1403602578']
I have to agree; especially considering vicarious liability. Seems to me that in college, we talked about this in a law class I took, and the professor also stated that this crime was also basically considered treason. The sentence for treason in the US always has been death. So, these four conspirators were considered traitors (and you see them variously described thus in some newspaper accounts) and therefore received the death sentence. I also have always believed that Stanton and the Commission wanted some scapegoats to serve as examples - and these four were tagged as "it!"
[/quote
Correct me if I'm wrong but seems like everything I read states Gen. Hartranft "commanded the Old Capitol Prison," and "was appointed special provost," etc. I believe that is not entirely accurate. From what I could find, Lt. Col. Newton Colby, 19th Veteran Reserve Corps had actual command of the prison, before during an after. His rank would be appropriate for commanding a Federal installation. There would be a hospital there also, and the VRC were responsible for guarding Federal installations, prisons, draft rendezvous and hospitals etc., and almost all "US General Hospitals" had brass bands made from VRC members assigned to guard duty, and inmates who were well enough to play a horn. I have documented many cases where camp commandants, hospital administrators kept sick/wounded soldiers on, past the point they could be returned to their unit, just because they played in the "hospital band," or "post band." In DC, I have documentation of the US General Hospitals known to have bands: Finley, Lincoln, Harewood, Carver, Emory, Armory Square, Mount Pleasant, Campbell to name some. Plus the hospital at the "Draft Rendezvous, Alexandria," all manned with Veteran Reserve Corps musicians,plus Military Governor of Alexandria Post Band. I have not found a band in the 18th or 19th VRC yet, but I'm looking. Any thoughts?

[L Verge]

Col. Julian Raymond, who commanded Ft. Lesley J. McNair (previously the Arsenal in 1865) a century later, documented much of his historical research when he caught the bug of assassinitice. I'm having our librarian at Surratt House check our files to see if we have a copy. If not, I know someone who does.

Personally, I just have to think that some mention would have been made of a post or regimental band at some point with all of the fantastic researchers that have plumbed the depths over the past 100 years looking for every speck and tidbit in any way related to our addiction.