ARGUMENT

IN DEFENSE OF MRS. MARY E. SURRATT,

BY

FREDERICK A. AIKEN, ESQ.

Of Counsel for Mrs. Surratt.

Mr. President and Gentlemen of the Commission: For the lawyer as well as the soldier, there is an equally pleasant duty-an equally imperative command. That duty is to shelter from injustice and wrong the innocent, to protect the weak from oppression, and to rally at all times and on all occasions, when necessity demands it, to the special defense of those whom nature, custom, or circumstance may have placed in dependence upon our strength, honor and cherishing regard. That command emanates and reaches each class from the same authoritative and omnipotent source. It comes from a Superior, whose right to command none dare question, and none dare to disobey. In this command there is nothing of that lex talionis which nearly two thousand years ago nailed to the cross its Divine Author.

"Therefore, all things whatsoever ye would that men should do to you, do ye ever so unto them; for this is the law and the prophets."

God has not only given us life, but He has filled the world with everything to make life desirable; and when we sit down to determine the taking away of that which we did not give, and which, when once taken, we can not restore, we consider a subject the most solemn and momentous within the range of human thought and human action.

ive of the subject on which it treats. Therefore, in proceeding to the discussion of the merits of the case against her, the jurisdiction of the Court, for the sake of argument, may be taken as conceded.

But, if it be granted that the jurisdiction is complete, the next preliminary inquiry naturally is as to the principles of evidence by which the great mass of accumulated facts is to be analyzed and weighed in the scales of justice and made to bias the minds of her judges; and it may be here laid down as a concessum in the case that we are here in this forum, constrained and concluded by the same process, in this regard, that would bind and control us in any other Court of civil origin, having jurisdiction over a crime such as is here charged. For it is asserted in all the books that courts-martial must proceed, so far as the acceptance and the analysis of evidence is concerned, upon precisely those reasonable rules of evidence which time and experience, ab antico, surviving many ages of judicial wisdom, have unalterably fixed as unerring guides in the administration of the criminal law. Upon this conceded proposition it is unnecessary to consume time by the multiplication of references. We are content with two brief citations from works of acknowledged authority.

In Greenleaf it is laid down, "that courtsmartial are bound, in general, to observe the rules of the law of evidence by which the courts of criminal jurisdiction are governed," 3 Greenleaf, sec. 467.

Profoundly impressed with the innocence of our client, we enter upon this last duty in her case with the heartfelt prayer that her honorable judges may enjoy the satisfaction of not having a single doubt left on their minds in granting her an acquittal, either as to the testi- This covers all the great general principles of mony affecting her, or by the surrounding cir-evidence, the points of difference being wholly cumstances of the case. as to minor matters.

The first point that naturally arises in the And it is also affirmed in Benet, "that it presentation of the defense of our client, is has been laid down as an indisputable princithat which concerns the plea that has been ple, that whenever a legislative act erects a made to the jurisdiction of this Commission to new jurisdiction, without prescribing any partry her a plea which by no means implies ticular rules of evidence to it, the common any thing against the intelligence, fairness, or law will supply its own rules, from which it integrity of the brilliant and distinguished will not allow such newly-erected Court to officers who compose the Court, but which depart. The rules of evidence, then, that obmerely touches the question of the right of this tain in the criminal courts of the country, tribunal, under the authority by which it is must be the guides for the courts-martial; the convoked. This branch of her case is left to end sought for being the truth, these rules depend upon the argument already submitted laid down for the attainment of that end, must by her senior counsel, the grande decus colu- be intrinsically the same in both cases. These menque of his profession, and which is exhaust-rules constitute the law of evidence, and in

volve the quality, admissibility, and effect of low in a civil court. It is, therefore, not only evidence and its application to the purposes a matter of the highest concern to the accused of truth." Benet, pp. 226, 227. themselves as a question of personal and pri Therefore, all the facts that tend against the vate right, but also of great importance upon accused, and all those that make for her, are considerations of general public utility and to be weighed and are to operate upon her con- policy, that the results of this trial, as affecting viction or acquittal precisely as they would in each of the accused, among them Mrs. Surratt, a court of law. If they present a case such shall be rigidly held within the bounds and as would there convict her, she may be found limitations that would control in the premises. guilty here; and if, on the other hand, the if the parties were on trial in a civil court rules of law upon these facts would raise any upon an indictment equivalent to the charges presumption or create any doubt, or force any and specifications here. Conceding, as we have conclusions that would acquit her in a court said, the jurisdiction for the purposes of this of law, then she must be discharged, upon the branch of the argument, we hold to the princi same principles, by this Commission. This is ple first enunciated as the one great, all-importa point which, in our judgment, we can not too ant, and controlling rule that is to guide the strongly impress upon the minds of her judges. Commission in the findings they are now about The extraordinary character of the crime; to make. In order to apply this principle to the assassination that removed from us the the case of our client, we do not propose to President of the United States, makes it most range through the general rules of evidenes desirable that the findings of this tribunal with a view to seeing how they square with the shall be so well founded in reason as to satisfy facts as proven against her. In the examinsand secure public confidence and approval; tion of the evidence in detail, many of these for many of the most material objects of this must from necessity be briefly alluded to; bat prosecution, and some of the most important there is only one of them to which we propose ends of justice, will be defeated and frustrated in this place to advert specifically, and that is if convictions or acquittals, and more espe- the principle that may be justly said to lie at cially the former, shall be adjudged upon the foundation of all the criminal law-a pringrounds that are notoriously insufficient. ciple so just, that it seems to have sprung from

Such a course of action would have a ten- the brain of Wisdom herself, and so undouble i dency to draw sympathy and support to the and universal as to stand upon the recognition parties thus adjudged guilty, and would rob of all the times and all the mighty intellecis the result of this investigation of the whole-through and by which the common law has some support of professional and public opin- been built up. We allude, of course, to the ion. The jurisdiction of the Commission, for principle which declares that "every man example, is a matter that has already provoked held to be innocent until he shall be prove considerable criticism and much warm disap- guilty". -a principle so natural that it has proval; but in the case of persons clearly found fastened itself upon the common reason C to be guilty, the public mind would easily over-mankind, and been immemorially adopted as a look any doubts that might exist as to the cardinal doctrine in all courts of justic regularity of the Court in the just sentence worthy of the name. It is by reason of th. that would overtake acknowledged criminals. great, underlying legal tenet that we are i Thus, if Booth himself and a party of men possession of the rule of law, administered by clearly proved, by ocular evidence or confes-all of the courts, which, in mere technical ersion, to have aided him, were here tried and con- pression, may be termed "the presumption et demned, and, as a consequence, executed, not innocence in favor of the accused." And it is much stress, we think, would be laid by many from hence that we derive that further applica upon the irregularity of the mode by which tion of the general principle, which has als they should reach that just death which all become a rule of law and of universal applies. good citizens would affirm to be their deserts. tion wherever the common law is respecte But the case is far different when it affects per- (and with which we have more particularly sons who are only suspected, or against whom deal), by which it is affirmed, in common la the evidence is weak and imperfect; for if citi-guage, that in any prosecution for crime "Ta zens may be arraigned and convicted for so ACCUSED MUST BE ACQUITTED WHERE THERE IS grievous an offense as this upon insufficient | REASONABLE DOUBT OF HIS GUILT.” evidence, every one will feel his own personal think it necessary to adduce authorities for the safety involved, and the tendency would be to position before any tribunal. In a CIT intensify public feeling against the whole pro- court we certainly should waive the citation s cess of the trial. It would be felt and argued for the principle as stated would be assume that they had been condemned upon evidence by any civil judge, and would, indeed, be the that would not have convicted them in a civil starting point for any investigation whateve court, and that they had been deprived, there- Though a maxim so common and conceded, it fore, of the advantages which they would have fortified by the authority of all the great ligh had for their defense. Reproach and con- of the law. Before reference, however, is ma tumely upon the Government would be the to them, we wish to impress upon the minds » natural result, and the first occasion would the Court another and important rule which arise in all our history for such demonstrations shall have occasion to refer to: as would be sure to follow the condemnation of "The evidence in support of a conspiracy mere citizens, and particularly of a woman, generally circumstantial." _Russell on Crimes, upon evidence on which an acquittal would fol-2, 2 698.

We hard

In regard to circumstantial evidence, all the best and ablest writers, ancient and modern, agree in treating it as wholly inferior in cogency, force, and effect, to direct evidence. And now for the rule which must guide the jury in all cases of reasonable doubt:

"If evidence leave reasonable ground for doubt, the conclusion can not be morally certain, however great may be the preponderance of probability in its favor." Wills on Circumstantial Evidence. Law Library, vol. 41.

The burden of proof in every criminal case is on the Government to prove all the material allegations in the indictment; and if, on the whole evidence, the jury have a reasonable doubt whether the defendant is guilty of the crime charged, they are bound to acquit him. If the evidence leads to a reasonable doubt, that doubt will avail in favor of the prisoner." 1st Greenleaf, sec 34-Note.

mony, no case is free from possible innocence. Even the most direct evidence of crime may possibly be mistaken. But the doubt required by the law must be so consonant with reason as, in analogous circumstances, would affect the action of a reasonable creature concerning his own affairs. We may make the nature of such a doubt clearer to the Court by alluding to a very common rule in the application of the general principle in certain cases, and the rule will readily appeal to the judgment of the Court as a remarkable and singularly beautiful example of the inexorable logic with which the law applies its own unfailing reason.

Thus, in cases of conspiracy, and some others, where many persons are charged with joint crime, and where the evidence against most of them must, of necessity, be circumstantial, the plea of "reasonable doubt" becomes peculiarly valuable to the separate accused, and the mode Perhaps one of the best and clearest defini- in which it is held it can best be applied is the tions of the meaning of a "reasonable doubt" test whether the facts as proved, circumstantial, is found in an opinion given in Dr. Webster's as supposed, can be made to consist just as case by the learned and accurate Chief-Justice reasonably with a theory that is essentially difof Massachusetts. He said: ferent from the theory of guilt.

The evidence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it." Commonwealth vs. Webster, 5 Cush.,

320.

Far back in the early history of English jurisprudence we find that it was considered a most serious abuse of the common law "that justices and their officers, who kill people by false judgment, be not destroyed as other murderers, which King Alfred caused to be done, who caused forty-four justices in one year to be hanged for their false judgment. He hanged Freburne because he judged Harpin to die, whereas the jury were in doubt of their verdict; for in doubtful cases we ought rather to save than to condemn."

The spirit of the Roman law partook of the same care and caution in the condemnation of those charged with crime. The maxim was: "Satius est, impunitum relinqui fecinus nocentis, quam innocentem damnare."

That there may be no mistake concerning the fact that this Commission is bound as a jury by these rules, the same as juries in civil courts, we again quote from Benet:

"It is in the province of the Court (Courtmartial) to decide all questions on the admissibility of evidence. Whether there is any evidence is a question for the Court as judges, but whether the evidence is sufficient is a question for the Court as jury to determine, and this rule applies to the admissibility of every kind of evidence, written as well as oral." Benet, pp. 225, 226.

If, therefore, in the development of the whole facts of a conspiracy, all the particular facts against a particular person can be taken apart and shown to support a reasonable theory that excludes the theory of guilt, it can not be denied that the moral proof of the latter is so shaken as to admit the rule concerning the presumption of innocence. For surely no man should be made to suffer because certain facts are proved against him, which are consistent with guilt, when it can be shown that they are also, and more reasonably, consistent with innocence. And, as touching the conspiracy here charged, we suppose there are hundreds of innocent persons, acquaintances of the actual assassin, against whom, on the social rule of "noscitur a sociis," mercifully set aside in law, many facts might be elicited that would corroborate a suspicion of participation in his crime; but it would be monstrous that they should suffer from that theory when the same facts are rationally explainable on other theories.

The distinguished Assistant Judge Advocate, Mr. Bingham, who has brought to the aid of the prosecution, in this trial, such ready and trenchant astuteness in the law, has laid the following down as an invariable rule, and it will pass into the books as such:

"A party who conspires to do a crime may approach the most upright man in the world, with whom he had been, before the criminality was known to the world, on terms of intimacy, and whose position in the world was such that he might be on terms of intimacy with reputable gentlemen. It is the misfortune of a man that is approached in that way; it is not his crime, and it is not COLORABLY his crime either."

These citations may be indefinitely multiplied, for this principle is as true in the law as This rule of construction, we humbly submit, any physical fact in the exact sciences. It is not in connection with the question of doubt, has a contended, indeed, that any degree of doubt is direct and most weighty bearing upon the case sufficient to acquit, but the doubt must be of a of our client. Some indication of the mode in reasonable nature, so as to overset the moral which we propose to apply it may be properly evidence of guilt; a mere possibility of inno- stated here. Now, in all the evidence, there is tence will not suffice, for, upon human testi- not a shadow of direct and positive proof, which

connects Mrs. Surratt with a participation in traitorous conspiracy aforesaid, and with intent this conspiracy alleged, or with any knowledge to aid, abet and assist them in the execution of it. Indeed, considering the active part she thereof, and in escaping from justice after the is charged with taking, and the natural com- murder of the said Abraham Lincoln, as aforemunicativeness of her sex, the case is most said." singularly and wonderfully barren of even circumstantial facts concerning her. But all there is, is circumstantial. Nothing is proved against her, except some few detached facts and circumstances, lying around the outer circle of the alleged conspiracy, and by no means necessarily connected with guilty intent or guilty knowledge.

It becomes our duty to see: 1. What these facts are.

2. The character of the evidence in support of them, and of the witnesses by whom they are said to be proven. And,

3. Whether they are consistent with a reasonable theory by which guilt is excluded.

The first striking fact proved is her acquaintance with J. Wilkes Booth-that he was an occasional visitor at her house. From the evidence, if it is to be relied on, it distinctly appears that this acquaintance commenced the latter part of last January, in the vicinage of three months only before the assassination of the President, and, with slight interruptions, it was continued down to the day of the assassination of the President. Whether he was firs invited to the house and introduced to the fanily by Weichmann, John H. Surratt, or some other person, the evidence does not disclose. When asked by the Judge Advocate "whom did he call to see," the witness, Weichmann, responded, "He generally called for Mr. SurrattJohn H. Surratt-and, in the absence of John H. Surratt, he would call for Mrs. Surratt."

Before calling the attention of the Commission to the next evidence of importance against Mrs. Surratt, we desire to refresh the recollection of the Court as to the time and manner. and by whom, according to the testimony of Lloyd, the carbines were first brought to his (Lloyd's) house.

From the official record the following is taken:

Q. Will you state whether or not, some five or six weeks before the assassination of the President, any, or all of these men, about whom have inquired, came to your house? A. They were there.

I

We assume, of course, as a matter that does not require argument, that she has committed no crime at all, even if these facts be proved, unless there is the necessary express or implied criminal intent, for guilty knowledge and guilty intent are the constituent elements, the principles of all crime. The intent and malice, too, in her case must be express, for the facts proved against her, taken in themselves, are entirely and perfectly innocent, and are not such as give rise to a necessary implication of malice. This will not be denied. Thus, when one commits a violent homicide, the law will presume the requisite malice; but when one only delivers a message, which is an innocent act in itself, the guilty knowledge, malice and intent, that are absolutely necessary to make it criminal, must be expressly proven before any criminal consequences can attach to it. And, to quote, "Knowledge and intent, when material, must be shown by the prosecutor." Wharton's American Criminal Law, sec. 681. The intent to do a criminal act, as defined by A. When they drove up there, in the mortBouvier, implies and means a pre-conceived ing, John H. Surratt and Atzerodt came firs: purpose and resolve, and determination to they went from my house, and went toward T. commit the crime alleged. To quote again: B., a post-office kept about five miles below "But the intent or guilty knowledge must be there. They had not been gone more than half brought directly home to the defendant." Whar- an hour when they returned with Herold; ther ton's American Criminal Law, sec. 685. When an the three were together-Herold, Surratt and act, in itself indifferent, becomes criminal, if Atzerodt. done with a particular intent, then the intent must be proved and found." 3 Greenleaf, sec. 13.

Q. All three together?

A. Yes; John H. Surratt, Herold and Atzerodt were there together.

Q. What did they bring to your house, and what did they do there?

Q. What did they bring to your house?

A. I saw nothing until they all three came into the bar-room. I noticed one of the bug

In the light of these principles, let us ex-gies-the one I supposed Herold was driving amine the evidence as it affects Mrs. Surratt. 1. What are the acts she has done? The specification against her, in the general charge, is as

follows:

went down in-standing at the front gate. A three of them, when they came into the barroom, drank, I think, and then John Surras called me into the front parlor, and on the sofa were two carbines, with ammmunition. I think he told me they were carbines.

Q. Anything beside the carbines and a munition?

A. There was a rope and also a monkeywrench. Q. How long a rope?

"And in further prosecution of the said conspiracy, Mary E. Surratt 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, receive, entertain, harbor and conceal, aid and assist the said John A. I can not tell. It was in a coil-a rigt Wilkes Booth, David E. Herold, Lewis Payne, smart bundle-probably sixteen or twen John H. Surratt, Michael O'Laughlin, George feet. A. Atzerodt, Samuel Arnold, and their confederates, with knowledge of the murderous and A.

Q.

Were those articles left at your hous
Yes, sir; Surratt asked me to take ca

is the second item of importance against Mrs. Surratt, and in support of the specification against her. The third and last fact that makes against her in the minds of the Court, is the one narrated by Major H. W. Smith, a witness A. Yes, sir; he asked me to conceal them. for the prosecution, who states that while at I told him there was no place to conceal them. the house of Mrs. Surratt, on the night of the He then carried me into a room that I had 17th of April, assisting in making the arrest never been in, which was just immediately of its inmates, the prisoner, Payne, came in. above the store room, as it were in the back He (Smith) stepped to the door of the parlor building of the house. I had never been in and said: "Mrs. Surratt, will you step here a that room previons to that time. He showed minute?" As Mrs. Surratt came forward, he me where I could put them, underneath the asked her the question, "Do you know this joists of the house--the joists of the second man?" She replied, quoting the witness' lanfloor of the main building. This little unfin- guage, "Before God, sir, I do not know this ished room will admit of anything between man, and I have never seen him." An addithe joists.