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

G.o.d 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 taken away, we cannot restore, we consider a subject the most solemn and momentous within the range of human thought and human action.

Profoundly impressed with the innocence of our client, we enter upon the 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 testimony affecting her, or by the surrounding circ.u.mstances of the case.

The first point that naturally arises in the presentation of the defense of our client is that which concerns the plea that has been made to the jurisdiction of the commission to try her--a plea which by no means implies anything against the intelligence, fairness, or integrity of the brilliant and distinguished officers who compose the court, but merely touches the question of the right of this tribunal, under the authority by which it is convoked. This branch of her case is left to depend upon the argument already submitted by her senior counsel, the _grande_ _decus_ _columenque_ of his profession, and which is exhaustive 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 ma.s.s of acc.u.mulated facts is to be a.n.a.lyzed 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 a.s.serted in all the books that court-martial must proceed, so far as the acceptance and the a.n.a.lysis of evidence is concerned, upon precisely those reasonable rules of evidence which time and experience, _ab_ _antiquo_, 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 necessary 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 courts-martial are bound, in general, to observe the rules of the law of evidence by which the courts of criminal jurisdiction are governed." (3 Greenleaf, section 467.)

This covers all the great general principles of evidence, the points of difference being wholly as to minor matters. And it is also affirmed in Benet:--

"That it has been laid down as an indisputable principle, that whenever a legislative act erects a new jurisdiction, without prescribing any particular rules of evidence to it, the common law will supply its own rules, from which it will not allow such newly-erected court to depart. The rules of evidence, then, that obtain in the criminal courts of the country must be the guides for the courts-martial; the end sought for being the truth, these rules laid down for the attainment of that end must be intrinsically the same in both cases. These rules const.i.tute the law of evidence, and involve the quality, admissibility, and effect of evidence and its application to the purposes of truth." (Benet, pp. 226, 327.)

Therefore, all the facts that tend against the accused, and all those that mate for her, are to be weighed and are to operate upon her conviction or acquittal precisely as they would in a court of law. If they present a case such as would there convict her she may be found guilty here; and if, on the other hand, the rules of law upon these facts would raise any presumption or create any doubt, or force any conclusions that would acquit her in a court of law, then she must be discharged, upon the same principles by the commission.

This is a point which, in our judgment, we cannot too strongly impress upon the minds of her judges. The extraordinary character of the crime--the a.s.sa.s.sination that removed from us the President of the United States--makes it most desirable that the findings of this tribunal shall be so well founded in reason as to satisfy and secure public confidence, and approval; for many of the most material objects of the prosecution, and some of the most important ends of justice, will be defeated and frustrated if convictions and acquittals, and more especially the former, shall be adjudged upon the grounds that are notoriously insufficient.

Such a course of action would have a tendency to draw sympathy and support to the parties thus adjudged guilty, and would rob the result of this investigation of the wholesome support of professional and public opinion. The jurisdiction of the commission, for example, is a matter that has already provoked considerable criticism and much warm disapproval; but in the case of persons clearly found to be guilty, the public mind would easily overlook any doubts that might exist as to the regularity of the court in the just sentence that would overtake acknowledged criminals. Thus, if Booth himself and a party of men clearly proved, by ocular evidence or confession, to have aided him, were here tried and condemned, and, as a consequence, executed, not much stress, we think, would be laid by many upon the irregularity of the mode by which they should reach that just death which all good citizens would affirm to be their deserts. But the case is far different when it affects persons who are only suspected, or against whom the evidence is weak and imperfect; for, if citizens may be arraigned and convicted for so grievous an offense as this upon insufficient evidence, every one will feel his own personal safety involved, and the tendency would be to intensify public feelings against the whole process of the trial. It would be felt and argued that they had been condemned upon evidence that would not have convicted them in a civil court, and that they had been deprived, therefore, of the advantage, which they would have had for their defense. Reproach and contumely upon the government would be the natural result, and the first occasion would arise in all history for such demonstrations as would be sure to follow the condemnation of mere citizens, and particularly of a woman, upon evidence on which an acquittal would follow in a civil court. It is, therefore, not only a matter of the highest concern to the accused themselves, as a question of personal and private right, but also of great importance upon considerations of general public utility and policy, that the results of this trial, as affecting each of the accused, among them Mrs. Surratt, shall be rigidly held within the bounds and limitations that would control in the premises, if the parties were on trial in a civil court upon an indictment equivalent to the charges and specifications here. Conceding, as we have said, the jurisdiction for the purpose of this branch of the argument, we hold to the principle first enunciated as the one great, all-important, and controlling rule that is to guide the commission in the findings they are now about to make. In order to apply this principle to the case of our client, we do not propose to range through the general rules of evidence with a view to seeing how they square with the facts as proven against her. In the examination of the evidence in detail, many of these must from necessity be briefly alluded to; but there is only one of them to which we propose in this place to advert specifically, and that is the principle that may be justly said to lie at the foundation of all the criminal law--a principle so just, that it seems to have sprung from the brain of Wisdom herself, and so undoubted and universal as to stand upon the recognition of all the times and all the mighty intellects through and by which the common law has been built up. We allude, of course, to that principle which declares that "every man is held to be innocent until he shall be proven guilty"--a principle so natural that it has fastened itself upon the common reason of mankind, and been immemorially adopted as a cardinal doctrine in all courts of justice worthy of the name. It is by reason of this great underlying legal tenet that we are in possession of the rule of law, administered by all the courts, which, in mere technical expression, may be termed "the presumption of innocence in favor of the accused."

And it is from hence that we derive that further application of the general principle, which has also become a rule of law, and of universal application wherever the common law is respected (and with which we have more particularly to deal), by which it is affirmed, in common language, that in any prosecution for crime "the accused must be acquitted where there is a reasonable doubt of his guilt."

We hardly think it necessary to adduce authorities for this position before any tribunal. In a civil court we certainly should waive the citations, for the principle as stated would be a.s.sumed by any civil judge and would, indeed, be the starting point for any investigation whatever. Though a maxim so common and conceded, it is fortified by the authority of all the great lights of the law. Before reference is made to them, however, we wish to impress upon the minds of the court another and important rule to which we shall have occasion to refer:--

"The evidence in support of a conspiracy is generally circ.u.mstantial" (Russell on Crimes, Vol. ii., 698.)

In regard to circ.u.mstantial 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 that must guide the jury in all cases of reasonable doubt:--

"If evidence leave reasonable ground for doubt, the conclusion cannot be morally certain, however great may be the preponderance of probability in its favor." (Wills on Circ.u.mstantial Evidence. Law Library, Vol. xli.)

"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 lead to a reasonable doubt, that doubt will avail in favor of the prisoner." (1 Greenleaf, section 34--Note.)

Perhaps one of the best and clearest definitions of the meaning of a "reasonable doubt" is found in an opinion given in Dr. Webster's case by the learned and accurate Chief-Justice of Ma.s.sachusetts. He said;--

"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 versus 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_ _facinus_ _nocentis_, _quam_ _innocentem_ _d.a.m.nare_."

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 (court-martial) 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.)

These citations may be indefinitely multiplied, for this principle is as true in the law as any physical fact in the exact sciences.

It is not contended, indeed, that any degree of doubt must be of a reasonable nature, so as to overset the moral evidence of guilt.

A mere possibility of innocence will not suffice, for, upon human testimony, no case is free from possible innocence. Even the more direct evidence of crime may be possibly mistaken. But the doubt required by the law must be consonant with reason and of such a nature that in a.n.a.logous circ.u.mstances it 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 case 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 circ.u.mstantial, the plea of "reasonable doubt" becomes peculiarly valuable to the separate accused, and the mode in which it is held it can best be applied is the test whether the facts as proved, circ.u.mstantial, as supposed, can be made to consist just as reasonably with a theory that is essentially different from the theory of guilt.

If, therefore, in the developments 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 cannot 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 a.s.sa.s.sin, 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 partic.i.p.ation 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 a.s.sistant 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 pa.s.s 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."

This rule of construction, we humbly submit, in connection with the question of doubt, has a direct and most weighty bearing upon the case of our client. Some indication of the mode in which we propose to apply it may be properly stated here. Now, in all the evidence, there is not a shadow of direct and positive proof which connects Mrs. Surratt with a partic.i.p.ation in this conspiracy alleged, or with any knowledge of it. Indeed, considering the active part she is charged with taking, and the natural communicativeness of her s.e.x, the case is most singularly and wonderfully barren of even circ.u.mstantial facts concerning her. But all there is, is circ.u.mstantial. Nothing is proved against her except some few detached facts and circ.u.mstances 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 a.s.sume, 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 const.i.tuent 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, section 631.)

The intent to do a criminal act as defined by Bouvier implies and means a preconceived 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, 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, section 13.)

In the light of these principles, let us examine 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;--

"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 sixth day of March, A.D. 1865, and on divers other days and times between that day and the twentieth of April, A.D. 1865, receive and entertain, harbor and conceal, aid and a.s.sist, the said John Wilkes Booth, David E. Herold, Lewis Payne, John H. Surratt, Michael O'Laughlin, George A. Atzerodt, Samuel Arnold, and their confederates, with knowledge of the murderous and traitorous conspiracy aforesaid, and with intent to aid, abet, and a.s.sist them in the execution thereof, and in escaping from justice after the murder of the said Abraham Lincoln, as aforesaid."

The first striking fact proved is her acquaintance with John Wilkes Booth--that he was an occasional visitor at her house. From the evidence, if it can be relied on, it distinctly appears that this acquaintance commenced the latter part of January, in the vicinage of three months only before the a.s.sa.s.sination of the President, and, with slight interruptions, it was continued down to the day of the a.s.sa.s.sination 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. Surratt--John 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:--

Question.--Will you state whether or not some five or six weeks before the a.s.sa.s.sination of the President, any or all of these men about whom I have inquired came to your house?

Answer.--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?