DEPARTMENT OF THE ARMY
OFFICE OF THE ASSISTANT SECRETARY
MANPOWER AND RESERVE AFFAIRS
111 ARMY PENTAGON
WASHINGTON DC 20310-0111

REPLY TO
					February 2,1996

74 Riverside Drive
Severna Park, Maryland  21146

Dear:

I apologize for the delay in responding to your request on behalf of                                            to reverse the Army’s previous decision regarding this matter issued by former Acting Assistant Secretary William D. Clark. The delay was caused, in large part, by the need to review the voluminous record provided to the Army Board for Correction of Military Records (ABCMR) and by a further examination of the jurisdictional issue.

After a careful and complete review of this matter, I have decided to let the Army’s previous decision stand. The appropriate legal authorities have already scrutinized and approved the military tribunal’s jurisdiction over Dr. Mudd.                       The existing evidence fails to call their conclusion into question.

As you have acknowledged in your request, the Army has consistently indicated to the Mudd  family that our review was confined to whether the military tribunal had jurisdiction to try  Dr. Samuel Alexander Mudd for his role in the assassination of President Abraham Lincoln in 1865. My review focused upon this issue and my decision does not involve the substantive aspects of whether                   Dr. Mudd was actually guilty or innocent.

As to the jurisdictional question, the evidence submitted has not convinced me to modify the Acting Assistant Secretary’s decision. The evidence of record does not demonstrate a probable material error, nor that the military commission lacked jurisdiction over Dr. Mudd at the time of trial. Although the ABCMR determined that conditions in Washington, DC, were such that  Dr. Mudd             could have been tried by civilian courts, that was never the issue. As both Attorney General Speed and Federal District Court Judge Boynton   emphasized, it was not President Lincoln in his role as President who was assassinated, but President Lincoln in his role as the Commander-in-Chief of this nation’s military. On the night he was assassinated, President Lincoln was the Commander-in-Chief and Washington, DC, was considered a fortified city, which served as the nation’s military headquarters. The city, throughout the course of the insurrection, was under a declared state of martial law and civil policing was conducted, for the most part, by soldiers. The insurrection was not legally declared at an end until April 1866; therefore, a state of war still existed at the time of                           trial. The assassination was an offense against the law of war. Thus, the military tribunal had the proper constitutional authority to try Dr. Mudd.               .

History is always subject to interpretation. Certainly the full and unconditional Presidential Pardon is strong evidence that within a relatively short period those better positioned and with more knowledge of the circumstances than we determined that Dr. Mudd's role in the assassination aftermath may well have been misconstrued. I believe that the words of the pardon indicate that President Andrew Johnson himself believed that Dr. Mudd may have acted out of medical obligation. On February 8,1869, President Johnson wrote:

...	upon a consideration and examination of the record of said trial and conviction, and the evidence given at said trial, I am satisfied that the guilt of said                               Samuel A. Mudd, found by said judgment, was of the receiving, entertaining, harboring and concealing of John Wilkes Booth and David E. Herold  with the intent to aid, abet and assist them in escaping from justice after the assassination of the late President of the United States, and not of any other or greater participation or complicity in said abominable crime. . . the circumstances of the surgical aid. . . and the imputed concealment of his flight are deserving of a lenient construction, as within the obligations of professional duty, and, thus inadequate evidence of a guilty sympathy with the crime or the criminal; and whereas, in other respects the evidence, imputing such guilty sympathy or purpose of aid in defeat of justice, leaves room for uncertainty as to the true
 measure and nature of the complicity of the said Samuel A. Mudd, in the attempted escape of said assassins... l... do hereby grant.. a full and unconditional pardon
(emphasis added).

Any further Army action would be an ill-advised attempt to alter legal history by non-judicial means. It would improperly disturb the importance of the finality of both judicial and executive decisions. Even if one could argue with hindsight that jurisdiction was improper, the appropriate time to make that challenge was 130 years ago within the confines of our judicial system. This was attempted by Dr. Mudd and he lost. His appeal of Judge Boynton's  decision to the U.S. Supreme Court was not heard because of the pardon. At that time, he decided not to judicially challenge the jurisdiction again. For the sake of the law and history, his descendants must live with the ramifications of his decision.

Your pursuit of and patience with this matter are recognized and appreciated.

Sincerely,

~
Assistant Secretary of the Army
(Manpower and Reserve Affairs)

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