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 cence 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. 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. 631. The intent to do a criminal act, as defined by Bouvier, implies and means a pre-conceived purpose and resolve, and determination to commit the crime alleged. To quote again: "But the intent or guilty knowledge must be brought directly home to the defendant." Wharton's American Criminal Law, sec. 635. When an act, in itself indifferent, becomes criminal, if done with a particular intent, then the intent must be proved and found." 3 Greenleaf, sec. 13. 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 first invited to the house and introduced to the family 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 I have inquired, came to your house? A. They were there. 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? A. When they drove up there, in the morning, John H. Surratt and Atzerodt came first; they went from my house, and went toward T. B., a post-office kept about five miles below there. They had not been gone more than half an hour when they returned with Herold; then the three were together-Herold, Surratt and Atzerodt. 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 or 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. All three of them, when they came into the barroom, drank, I think, and then John Surratt 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 ammunition? A. There was a rope and also a monkeywrench. "And in further prosecution of the said conspiracy, Mary E. Surratt did, at Washington eity, 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 right Wilkes Booth, David E. Herold, Lewis Payne, smart bundle-probably sixteen or twenty John H. Surratt, Michael O'Laughlin, George feet. A. Atzerodt, Samuel Arnold, and their confederates, with knowledge of the murderous and A. Q. How long a rope? Q. Were those articles left at your house? Yes, sir; Surratt asked me to take care of them, to conceal the carbines. I told him there was no place there to conceal them, and I did not wish to keep such things in the house. Q. You say that he asked you to conceal those articles for him? 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 net, 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 previous 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. Q. Were they put in that place? A. They were put in there according to his directions. Q. Were they concealed in that condition? A. Yes, sir; I put them in there. I stated to Colonel Wells through mistake, that Surratt put them there; but I put them in there myself. t carried the arms up myself. Q. How much ammunition was there? Q. For what purpose, and for how long, did he ask you to keep these articles? A. I am very positive that he said he would call for them in a few days. He said he just wanted them to stay for a few days and he would call for them. It also appears in evidence against Mrs. Surratt, if the testimony is to be relied on, that on the Tuesday previous to the murder of the President, the 11th of April, she met John M. Lloyd, a witness for the prosecution, at Uniontown, when the following took place: Question by the Judge Advocate: Q. Did she say anything to you in regard to those carbines? A. When she first broached the subject to me, I did not know what she had reference to; then she came out plainer, and I am quite positive she asked me about the "shooting irons." I am quite positive about that, but not altogether positive. I think she named "shooting irons," or something to call my attention to those things, for I had almost forgotten about their being there. I told her that they were hid away far back-that I was afraid the house would be searched, and they were shoved far back. She told me to get them out ready; they would be wanted soon. Q. Was her question to you first, whether they were still there, or what was it? A. Really, I can not recollect the first question she put to me. I could not do it to save my life. tion to this is found in the testimony of the same witness, as he was drawn out by the Judge Advocate. The witness repeats the language of Mrs. Surratt, "Before God, I do not know this man, and have never seen him, and did not hire him to dig a gutter for me." The fact of the photographs and card of the State arms of Virginia have ceased to be of the slightest importance, since the explanations given in evidence concerning them, and need not be alluded to. If there is any doubt as to whom they all belonged, reference to the testimony of Misses Surratt and Fitzpatrick will settle it. These three circumstances constitute the part played by the accused, Mary E. Surratt, in this great conspiracy. They are the acts she has done. They are all that two months of patient and unwearying investigation, and the most thorough search for evidence that was probably ever made, has been able to develop against her. The acquaintance with Booth, the message to Lloyd, the non-recognition of Payne, constitute the sum total of her receiving, entertaining, harboring, and concealing, aiding, and assisting those named as conspirators and their confederates, with knowledge of the murderous and traitorous conspiracy, and with intent to aid, abet, and assist them in the execu tion thereof, and in escaping from justice. The acts she has done, in and of themselves, are perfectly innocent. Of themselves they constitute no crime. They are what you or I, or any of us might have done. She received and entertained Booth, the assassin, and so did a hundred others. She may have delivered a message to Lloyd-so have a hundred others. She might have said she did not know Payneand who within the sound of my voice can say that they know him now? They are ordinary and commonplace transactions, such as occur every day and to almost everybody. But as all the case against her must consist in the guilty intent that will be attempted to be connected with these facts, we now propose to show that they are not so clearly proven as to free them from great doubt, and, therefore, we will inquire. On the afternoon of the 14th of April, at about half-past five, Lloyd again met Mrs. Surratt, at Surrattsville, at which time, according to his version, she met him by the wood-pile, 2d. How are these acts proven? Solely by near the house, and told him to have those the testimony of Louis J. Weichmann and John shooting irons ready that night, there would M. Lloyd. Here let us state that we have no be some parties calling for them, and that she gave him something wrapped in a piece of paper, and asked him to get two bottles of whisky ready also. This message to Mr. Lloyd malice toward either of them, but if in the analysis of their evidence we should seem to be severe, it is that error and duplicity may be exposed, and innocence protected. We may start out with the proposition that a next morning, when he left in the early train body of men, banded together for the consum- for Baltimore. About three weeks after that mation of an unlawful act against the Govern- Payne called again. Says Weichmann, "I ment, naturally would not disclose their purpose again went to the door, and I again ushered and hold suspicious consultations concerning it him into the parlor;" but says he had forgotten in the presence continually of an innocent his name, and only recollected that he had given party. In the light of this fair presumption, the name of Wood on the former visit, when let us look at the ACTS OF WEICHMANN, as dis-one of the ladies called Payne by that name. closed by his own testimony. Perhaps the most He who had served supper to Payne in his own singular and astonishing fact that is made to room, and had spent a night with him, could not appear is his omnipresence and co-action with recollect for three weeks the common name of those declared to be conspirators, and his pro-"Wood," but recollects with such distinctness fessed and declared knowledge of all their plans and particularity scenes and incidents of much and purposes. His acquaintance with John H. greater age, and by which he is jeopardizing Surratt commenced in the fall of 1859, at St. the lives of others. Payne remained that time Charles College, Maryland. In January, 1863, about three days, representing himself to the he renewed his acquaintance with him in this family as a Baptist preacher; that he had been city. On the 1st of November, 1864, he took in prison in Baltimore about a week, and that board and lodgings with Mrs. Surratt, at her he had taken the oath of allegiance and was house, No. 541 H street, in this city. If this tes- going to become a good loyal citizen. To Mrs. timony be correct, he was introduced to Booth Surratt this seemed eccentric, and she said he on the 15th day of January, 1865. At this first, was a great looking Baptist preacher." "They very first meeting, he was invited to Booth's looked upon it as odd, and laughed at it." It room, at the National, where he drank wine and seems from Weichmann's testimony that he took cigars at Booth's expense. After consulta-again shared his room with Payne, and when tion about something in an outer passage be-returning from his office one day, and finding a tween Booth and the party alleged to be with false mustache on the table in his room, he took him by Weichmann, they all came into the room, it and threw it into his toilet box, and afterand for the first time business was proceeded ward with a box of paints, in his trunk, and with in his presence. After that he met Booth the mustache was subsequently found in Weichin Mrs. Surratt's parlor and in his own room, mann's baggage. When Payne, according to and conversations with him. As near as Weichmann's testimony, inquired, "Where is Weich an recollects, about three weeks after my mustache?" Weichmann said nothing, but his intro, ction, he met the prisoner, Atzerodt, "thought it rather queer that a Baptist preacher at Mrs. Surratt's. (How Atzerodt was received should wear a mustache." He says he did not at the house will be referred to.) About the want it about his room; "thought no honest time that Booth played Pescara, in the "Apos- person had any reason to wear a false mustate," at Ford's theater, Weichmann attended tache," and as no "honest person" (?) should be the theater in company with Surratt and At-in possession of it, he locked it up in his own zerodt. At the theater they were joined by |trunk. Weichmann professes throughout his Herold. John T. Holahan, a gentleman not testimony the greatest regard and friendship suspected of complicity in the great tragedy, for Mrs. Surratt and her son. Why did he not. also joined the company at the theater. After on this occasion, and while his suspicions were the play was over, Surratt, Holahan and him- aroused-if he is an honest man, why did he self went as far as the corner of Tenth and Enot go to Mrs. Surratt and communicate them streets, when Surratt, noticing that Atzerodt at once? She, an innocent and guileless woman, and Herold were not with them, sent Weichmann not knowing what was occurring in her own back for them. He found them in a restaurant house; he, the friend, coming into possession near by, in conversation with Booth, by whose of important facts, and not making them known invitation Weichmann took a drink. After that to her, the head of the household, but claiming the entire party went to Kloman's, on Seventh now, since this overwhelming misfortune has street, and had some oysters. The party there fallen upon Mrs. Surratt, that, while reposing separated, Surratt, Weichmann and Holahan going home. In the month of March last the prisoner, Payne, according to Weichmann, went to Mrs. Surratt's house and inquired for John H. Surratt. "I myself," says Weichmann, “went to open the door, and he inquired for Mr. Surratt. I told him Mr. Surratt was not at home, But this is not all. Concede Weichmann's but I would introduce him to the family, and account of the mustache to be true, and if it did introduce him to Mrs. Surratt-under the was not enough to rouse his suspicions that all name of Wood." What more? By Weich- was not right, he states that, on the same day, mann's request Payne remained in the house all he went to Surratt's room and found Payne night. He had supper served to him in the seated on the bed with Surratt, playing with privacy of Weichmann's own room. More than bowie-knives, and surrounded with revolv that, Weichmann went down into the kitchen ers and spurs. Miss Honora Fitzpatrick and got the supper and carried it up to him testifies that Weichmann was treated by Mrs. himself, and as nearly as he recollects, it was Surratt "more like a son than a friend.” about eight weeks previous to the assassination. Poor return for motherly care! Guilty knowl Payne remained as Weichmann's guest until the edge of and participation in crime or in wild in the very bosom of the family as a friend and confidant, he was a spy and an informer! and that, we believe, is the best excuse the prosecution is able to make for him. His account and explanation of this mustache would be treated with contemptuous ridicule in a civil court. ARGUMENT OF FREDERICK A. AIKEN. schemes for the capture of the President, would | mann and Mrs. Surratt started for the country. eight spurs, and two long navy revolvers. Bear boarding house in this city, and was in the "Do you remember," the question was asked him, "early in the month of April, of Mrs. Surratt having sent for you and asking you to give Mr. Booth notice that she wished to see him?" Weichmann in his reply stated that she did; that it was on the 2d of April, and that he found in Mr. Booth's room John McCullough, the actor, One of two when he delivered the message. things to which he swears in this statement can not be true: 1. That he met John McCullough in Booth's room, for we have McCullough's sworn statement that at that time he was not in the city of Washington, and if, when he delivered the message to Booth, McCullough was in the room, it could not have been on the 2d of April. Mrs. Surratt touching any conspiracy. One thing is apparent to our minds, and it is forced upon us, as it must be upon every reasonable mind, that in order to have gained all this knowledge Weichmann must have been within the inner circle of the conspiracy. He knows too much for an innocent man, and the conclusion is perfectly irresistible that if Mrs. Surratt had knowledge of what was going on, and had been, with others, a particeps criminis in the great conspiracy, she would have certainly done more than she did or has been shown against her, and Weichmann would have known it. How does her non-recognition of Payne, her acquaintance with Booth, and the delivery of the message to Lloyd, compare with the long and startling array of facts proved against Weichmann out of his own mouth? All the facts point strongly to him as a co-conspirator. Is there a word on record of conversation between Booth and Mrs. Surratt? That they did treasonable had passed between them, would converse together, we know; but if anything not the quick ears of Weichmann have caught it, When Weichmann went, on Tuesday, the 11th and would not he have recited it to this Court? "ST. LAWRENCE HALL, "MONTREAL, June 3, 1865. "I am an actor by profession, at present fulfilling an engagement at Mr. Buckland's theater, in this city. I arrived here on the 12th of May. I performed two engagements at Ford's theater, in Washington, during the past winter, by Mrs. Surratt to get ten dollars. It was profthe last one closing on Saturday evening, 25th of April, to get Booth's buggy, he was not asked of March. I left Washington on Sunday even-ferred by Booth, according to Weichmann, and ing, 26th March, and have not been there since. he took it. If Mrs. Surratt ever got any money I have no recollection of meeting any person from Booth, she paid it back to him. It is not her character to be in any one's debt. by the name of Weichmann. "JOHN MCCULLOUGH. "Sworn to and subscribed before me, at the United States Consulate General's in Montreal, this third day of June, A. D. 1865. "C. H. POWERS, There was no intimacy with Booth, as Mrs. Surratt has proved, but only common acquaintance, and such as would warrant only occasional calls on Booth's part, and only intimacy I would have excused Mrs. Surratt to herself in accepting such a favor, had it been made known If he can be so mistaken about those facts, to her. Moreover, Miss Surratt has attested to may he not be in regard to the whole transac- remarks of her brother, which prove that intition? It is also proved by Weichmann that be-macy of Booth with his sister and mother were fore Mrs. Surratt started for the country, on not desirable to him. "U. S. Vice Consul General." the 14th of April, Booth called; that he re The preceding facts are proven by statements mained three or four minutes, and then Weich-made by Weichmann during his first examina |