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 even 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.
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 testimony affecting her, or by the surrounding circumstances 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 this Commission to try her—a plea which by no means implies any thing against the intelligence, fairness, or integrity of the brilliant and distinguished officers who compose the Court, but which 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 columengue 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 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 courts-martial are bound, in general, to observe the rules of the law of evidence by which the courts of criminal jurisdiction are governed.”
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 constitute the law of evidence, and involve the quality, admissibility, and effect of evidence and its application to the purposes of truth.”
Therefore, all the facts that tend against the accused, and all those that make 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 and 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 this Commission. This is a point which, in our judgment, we can not too strongly impress upon the minds of her judges. The extraordinary character of the crime; the assassination 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 this prosecution, and some of the most important ends of justice, will be defeated and frustrated if convictions or acquittals, and more especially the former, shall be adjudged upon 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 and offense as this upon insufficient evidence, every one will feel his own personal safety involved, and the tendency would be to intensify public feeling 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 advantages 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 our 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 purposes 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 of 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 assumed 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, however, is made to them, we wish to impress upon the minds of the Court another and important rule which we shall have occasion to refer to: “The evidence in support of a conspiracy is generally circumstantial.”
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.” “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.”
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 Massachusetts. He said: “The evidence must establish the truth of the fact to 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.”
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 (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.”
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 is sufficient to acquit, but the 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 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 in which it is held it can best be applied is the test whether the facts as proved, circumstantial. 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 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.”
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 evidence, there is not a shadow of direct and positive proof which connects Mrs. Surratt with a participation 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 sex, the case is most singularly and wonderfully barren of even circumstantial facts concerning her. But all there 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:
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.” 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 the defendant.” When an act, in itself indifferent, becomes criminal, if done with a particular intent, then the intent must be proved and found.”
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 charges, 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 6th day of March, A.D. 1865, and on the 20th day of April, A.D. 16865, receive, entertain, harbor and conceal, aid and assist the said John Wilkes Booth, David E. Herold, Lewis Payne, John H. Surratt, Michael O’Lanughlin, George A. Atzerdot, Samuel Arnold, and their confederates, with knowledge of the murderous and traitorous conspiracy aforesaid, and with intent to aid, abet and assist 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 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. 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:
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
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, near the house, and told him to have those shooting irons ready that night, there would 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 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 for the prosecution, who states that while at the house of Mrs. Surratt, on the night of the 17th of April, assisting in making the arrest of its inmates, the prisoner, Payne, came in. He (Smith) stepped to the door of the parlor and said: “Mrs. Surratt, will you step here a minute?” As Mrs. Surratt came forward, he asked her the question, “Do you know this man?” She replied, quoting the witness language, “Before God, sir, I do not know this man, and I have never seen him.” An addition 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 unwearyingly 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 t aid, abet, and
assist them in the execution 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 Payne—and who
within the sound of my voice can say that they know him
now? They are ordinary and commonplace transactions,
such as occur everyday 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 fee them from great doubt, and,
therefore, we will inquire.
We may start out with the proposition that a body of men, banded together for the consummation of an unlawful act against the Government, naturally would not disclose their purpose and hold suspicious consultations concerning it in the presence continually of an innocent party. In the light of this fair presumption, let us look at the ACTS OF WEICHMANN, as disclosed by his own testimony. Perhaps the most singular and astonishing fact that is made to appear is his omnipresence and co-action with those declared to be conspirators, and his professed and declared knowledge of all their plans and purposes. His acquaintance with John H. Surratt commenced in the fall of 1859, at St. Charles college, Maryland. In January, 1863, he renewed his acquaintance with him in this city. On the 1st of November, 1864, he took board and lodgings with Mrs. Surratt, at her house, No. 541 H street, in this city. If this testimony be correct, he was introduced to Booth on the 15th day of January, 1865. At this first, very first meeting, he was invited to Booth’s room, at the National, where he drank wine and took cigars at Booth’s expense. After consultation about something in an outer passage between Booth and the party alleged to be with him by Weichmann, they all came into the room, and for the first time business was proceeded with in his presence. After that he met Booth in Mrs. Surratt’s parlor and in his own room, and had conversations with him. As near as Weichmann recollects, about three weeks after his introduction, he met the prisoner, Atzerodt, at Mrs. Surratt’s. (How Atzdrodt was received at the house will be referred to.) About the time that Booth played Pescara, in the “Apostate,” at Ford’s theater, Weichmann attended the theater in company with Surratt and Atzerodt. At the theater they were joined by Herold. John T, Holahan, a gentleman not suspected of complicity in the great tragedy, also joined the company at the theater. After the play was over, Surratt, Holahan and himself went as far as the corner of Tenth and E streets, when Surratt, noticing that Atzerodt and Herold were not with them, sent Weichmann back for them. He found them in a restaurant near by, in conversation with Booth, by whose invitation Weichmann took a drink. After that the entire party went to Kloman’s on Seventh street, and had some oysters. The party there 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 I would introduce him to the family, and did introduce him to Mrs. Surratt—under the name of Wood.” What more? By Weichmann’s request Payne remained in the house all night. He had supper served to him in the privacy of Weichmann’s own room. More than that, Weichmann went down into the kitchen and got the supper and carried it up to him himself, and as nearly as he recollects, it was about eight weeks previous to the assassination. Payne remained as Weichmann’s guest until the next morning, when he left in the early train for Baltimore. About three weeks after that Payne called again. Says Weichmann, “I again went to the door, and I again ushered him into the parlor;” but says he had forgotten his name, and only recollected that he had given the name of Wood on the former visit, when one of the ladies called Payne by that name. He who had served supper to Payne in his own room, and had spent a night with him, could not recollect for three weeks the common name of “Wood,” but recollects with such distinctness and particularity scenes and incidents of much greater age, and by which he is jeopardizing the lives of others. Payne remained that time about three days, representing himself to the family as a Baptist preacher; that he had been in prison in Baltimore about a week, and that he had taken the oath of allegiance and was going to become a good loyal citizen. To Mrs. Surratt this seemed eccentric, and she said “he was a great looking Baptist preacher.” “They looked upon it as odd, and laughed at it.” It seems from Weichmann’s testimony that he again shared his room with Payne, and when returning from his office one day, and finding a false mustache on the table in his room, he took it and threw it into his toilet box, and afterward with a box of paints, in his trunk, and the mustache was subsequently found in Weichmann’s baggage. When Payne, according to Weichmann’s testimony, inquired, “Where is my mustache?” Weichmann said nothing, but “thought it rather queer that a Baptist preacher should wear a mustache.” He says he did not want it about his room; “thought no honest person had any reason to wear a false mustache,” and as no “honest person” (?) should be in possession of it, he locked it up in his own trunk. Weichmann professes throughout his testimony the greatest regard and friendship for Mrs. Surratt and her son. Why did he not, on this occasion, and while his suspicions were aroused—if he is an honest man, why did he not go to Mrs. Surratt and communicate them atonce? She, and innocent and guileless woman, not knowing what was occurring in her own house; he the friend, coming into possession of important facts, and not making them known to her, the head of the household, but claiming now, since this overwhelming misfortune has fallen upon Mrs. Surratt, that, while reposing 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 wit contemptuous ridicule in a civil court.
But this is not all. Concede Weichmann’s account of the mustache t be true, and if it was not enough to rouse his suspicions that all was not right, he states that, on the same day, he went to Surratt’s room and found Payne seated on the bed wit Surratt, playing with bowie-knives, and surrounded wit revolvers and spurs. Miss Honora Fitzpatrick testifies that Weichmann was treated by Mrs. Surratt, “more like a son than a friend.” Poor return for motherly care! Guilty knowledge of and participation in crime or I wild schemes for the capture of the President, would be a good excuse for not making all this known to Mrs. Surratt. In speaking of the spurs and pistols. Weichmann knew that there were just eight spurs, and tow long navy revolvers. Bear in mind, we ask you, gentlemen of the Commission, that there is no evidence before you showing that Mrs. Surratt knew anything about these things. It seems farther on, about the 19th of March, that Weichmann went to the Herndon House with Surratt to engage a room. He says he afterward learned that it was for Payne, from Atzerodt, but contradicts himself in the same breath by stating that he inquired of Atzerodt if he was going to see any at the Herndon House. His intimate knowledge of Surratt’s movements between Richmond and Washington, fixing the dates of the trips with great exactitude; of Surratt’s bringing gold back; of Surratt’s leaving on the evening of the 3d of April for Canada, spending his last moments here with Weichmann; of Surratt’s telling Weichmann about his interviews with Davis and Benjamin in all this knowledge concerning himself, and associations with those named as conspirators, he is no doubt truthful as far as his statements extend, but when he comes to apply some of this knowledge to others, he at once shakes all faith in his testimony bearing upon the accused.
“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, when he delivered the message. One of two 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.
“St. Lawrence Hall, }
If he can be so mistaken about those facts, may he not be in regard to the whole transaction? It is also proved by Weichmann that before Mrs. Surratt started for the country, on the 14th of April, Booth called; that he remained three or four minutes, and then Weichmann and Mrs. Surratt started for the country.
All this comes out on his first examination in chief. The following is also told in his first cross-examination : Mrs. Surratt keeps a boarding house in this city, and was in the habit of renting her rooms out, and that he was upon very intimate terms with Surratt; that they occupied the same room; that when he and Mrs. Surratt went to Surrattsville on the 14th, she took two packages, one of papers, the contents of the other were not known. That persons have been in the habit of going to Mrs. Surratt's and staying a day or two; that Atzerodt stopped in the house only one night; that the first time Payne came to the house he was dressed genteelly, like a gentleman; that be heard both Mrs. Surratt and her daughter say that they did not care about having Atzerodt brought to the house? and at the conclusion, in swearing as to Mrs. Surratt's character, he said it was exemplary and lady-like in every particular, and apparently, as far as he could judge, she was all the time, from the lst of November up to the 14th of April, "doing her duties to God and man." It also distinctly appears that Weichmann never had any conversation with 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 converse together, we know; but if anything treasonable had passed between them, would not the quick ears of Weichmann have caught it, and would not he have recited it to this Court?
When Weichmann went, on Tuesday, the llth of April, to get Booth's buggy, he was not asked by Mrs. Surratt to get ten dollars. It was proffered by Booth, according to Weichmann, and he took it. If Mrs. Surratt ever got any money from Booth, she paid it back to him. It is not her character to be in any one's debt.
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 would have excused Mrs. Surratt to herself in accepting such a favor, bad it been made known to her. Moreover, Miss Surratt has attested to remarks of her brother, which prove that intimacy of Booth with his sister and mother were not desirable to him.
The preceding facts are proven by statements made by Weicbmann during his first examination. But., as though the Commission bad not sufficiently exposed the character of one of its chief witnesses in the role of grand conspirator, Weichmann is re?called and farther attests to the genuineness of the following telegram:
“NEW YORK, March 28d, 1865--To Weichmann, Esq., 541 H
street: Tell John telegraph number and street at once."
What additional proof of confidential relations between Weichmann and Booth could the Court desire ? If there was a conspiracy planned and maintained among the persons named in the indictment, Weichmann must have had entire knowledge of the same, else he had not been admitted to that degree of knowledge to which he testifies; and in such case, and in the alleged case of Mrs. Surratt's complicity, Weichmann must have known the same by circumstances strong enough to exclude doubt, and in comparison with which all present facts of accusation would sink into insignificance.
We proceed to the notice and review of the second chief witness of the prosecution against Mrs. Surratt, John M. Lloyd. He testifies to the fact of a meeting with Mrs. Surratt at Uniontown on the 11th of April, 1865, and to a conversation having occurred between Mrs. Surratt and himself, in regard to which he states: "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." Q. "Was her question to you first, whether they were 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." The question was asked Lloyd, "During this conversation, was the word carbine mentioned?" He answered, "No." "She finally came out, but can not be determined about it?that she said shooting irons?asked me in relation to them." The question was then asked: "Can you swear, on your oath, that Mrs. Surratt mentioned the words 'shooting irons' to you at all?" A. "I am very positive she did." Q. "Are you certain?" A. "I am very positive that she named shooting irons on both occasions. Not so positive as to the first as I am about the last."
Here comes in the plea of "reasonable doubt." If the witness himself is not absolutely positive as to what occurred, and as to the conversation that took place, how can the jury assume to act upon it as they would upon a matter personally concerning themselves?
On this occasion of Mrs. Surratt's visit to Uniontown, three days before the assassination, where she met Lloyd, and where this conversation occurred between them, at a time when Lloyd was, by presumption, sober and not intoxicated, lie declares definitely before the Commission that he is unable to recollect the conversation, nor? parts of it, with distinctness. But on the 14th of April, and at a time when, as testified by his sister-in-law, he was more than ordinarily affected by intoxicating drink--and Capt. Gwynn, James Lusby, Knott, barkeeper, and others, corroborate the testimony as to his absolute inebriation--he attests that he positively remembers that Mrs. Surratt said to him: "Mr. Lloyd, I want you to have those shooting irons ready." " That persons would call for them." "That was the language she made use of, and she gave me this other thing to give to whoever called."
In connection with the fact that Lloyd can not swear positively that Mrs. Surratt mentioned “shooting irons" to him at Uniontown, bear in mind the fact that Weichmann Fiat in the buggy on the same seat with Mrs. Surratt, and he swears he heard nothing about "shooting irons." Would not the quick ears of Weichmann have heard the remark had it been made?
The gentlemen of the Commission will please recollect that these statements were rendered by a man addicted to excessive use of intoxicating liquors; that he was even inordinately drunk at the time referred to; that he had vol. unitarily complicated himself in the concealment of the arms by J. H. Surratt and his friends; that he was in a state of maudlin terror when arrested, and when forced to confess, that for two days he maintained denial of all knowledge that Booth and Herold had been at his house; and that at last, and in the condition referred to, he was coerced by threats to confess, and in a weak and common effort to exculpate himself by the accusation of another, he proceeded to place blame upon Mrs. Surratt by statements of conversation already cited. Notwithstanding his utter denial of all knowledge of Booth and Herold having called at his house, it afterward appears, by his own testimony, that immediately Herold commanded him (Lloyd) "for God's sake, make haste and get those things," he comprehended what "things" were indicated, without definition, and brought forth both carbines and whisky. He testifies that J. H. Surratt had told him, when depositing the weapons in concealment in his house, that they would soon be called for, but did not instruct him, it seems, by whom they would be demanded.
All facts connecting Lloyd with the case, tend to his implication and guilt., and to prove that he adopted the dernier resort of guilt--accusation and inculpation of another. In case Lloyd were innocent and Mrs. Surratt the guilty coadjutor and messenger of the conspirators, Lloyd would have been able to cite so much more open and significant remarks and acts of Mrs. Surratt that he would not have been obliged to recall, in all perversion and weakness of uncertainty, so common and unmeaning deeds and speech as his testimony includes.
It is upon these considerations that we feel ourselves safe and reasonable in the position that there are facts and circumstances, both external and internal, connected with the testimony of Weichmann and Lloyd, which, if they do not destroy, do certainly greatly shake their credibility, and which, under the rule that will give Mrs. Surratt the benefit of all reasonable doubts, seem to forbid that she should be convicted upon the unsupported evidence of these two witnesses. But even admitting the facts to be proven as above recited, it remains to be seen where is the guilty knowledge of the contemplated assassination; and this brings us to the inquiry whether these facts are not explainable so as to exclude guilt.
From one of the most respected of legal authorities the following is taken: "Whenever, therefore, the evidence leaves it indifferent which of several hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such evidence can not amount to proof. The maxim of the law is that it is better that ninety?nine offenders should escape than that one innocent man should be condemned."
The acts of Mrs.Surratt must have been accompanied with a criminal intent in order to make them criminal. If any one supposes that such intent existed, the supposition comes alone from inference. If disloyal acts and constant disloyal practices--if overt and open action against the Government on her part bad been shown down to the day of the murder of the President, it would do something toward establishing the inference of criminal intent. On the other hand, just the reverse is shown. The remarks here of the learned and honorable Judge Advocate are peculiarly appropriate to this branch of the discussion, and, with his authority, we waive all others:
"If the Court please, I will make a single remark. I think the testimony in this case has proved, what I believe history sufficiently attests, how kindred to each other are the crimes of treason against a nation and the assassination of its Chief Magistrate. I think of those crimes, the one seems to be, if not the necessary consequence, certainly a logical sequence from the other. The murder of the President of the United States, as alleged and shown, was pre?eminently a political assassination. Disloyalty to the Government was its sole, its only inspiration. When, therefore, we shall show, on the part of the accused, acts of intense disloyalty, bearing arms in the field against that Government, we show, with him, the presence of an anitnus toward the Government which relieves this accusation of much, if not all, of its improbability. And this course of proof is constantly resorted to in criminal courts. I do not regard it as in the slightest degree a departure from the usages of the profession in the administration of public justice. The purpose is to show that the prisoner, in his mind and course of life, was prepared for the commission of this crime; that the tendencies of his life, as evidenced by open and overt acts, lead and point to this crime, if not as a necessary, certainly as a most probable result, and it is with that view, and that only, that the testimony is offered."
Is there anything in Mrs.Surratt's mind and course of life to show that she was prepared for the commission of this crime? The business transacted by Mrs.Surratt at Surrattsville, on the 14th, clearly discloses her only purpose in making the visit. Calvert's letters, the package of papers relating to the estate, the business with Nothe, would be sufficiently clear to most minds, when added to the fact that the other unknown package had been handed to Mrs. Offutt; that, while at Surratteville, she made no inquiry for, or allusion to, Mr. Lloyd, and was ready to return to Washington when Lloyd drove up to the house. Does not this open wide the door for the admission of the plea of "reasonable doubt?" Had she really been engaged in assisting in the great crime, which makes an epoch in our country's history, her only object and most anxious wish would have been to see Lloyd. It was no ruse to transact important business there to cover up what the uncharitable would call the real business. Calvert's letter was received by her on the forenoon of the 14th, and long before she saw Booth that day, or even before Booth knew that the President would be at the theater that night, Mrs. Surratt had disclosed her intention to go to Surrattsville, and had she been one moment earlier in her start, she would not have seen Booth at all. All these things furnish powerful presumptions in favor of the theory that, if she delivered the message at all, it was done innocently.
In regard to the non-recognition of Payne, the third fact adduced by the prosecution against Mrs. Surratt, we incline to the opinion that, to all minds not fore-judging, the testimony of Miss A. E. Surratt, and various friends and servants of Mrs. Surratt, relative to physical causes, might fully explain and account for such ocular remissness and failure. In times and on occasions of casual meeting of intimate acquaintances on the street, and of common need for domestic uses, the eyesight of Mrs. Surratt had proved treacherous and failing. How much more liable to fail her was her imperfect vision on an occasion of excitement and anxiety, like the night of her arrest and the disturbance of her household by military officers, and when the person with whom she was confronted was transfigured by a disguise which varied from the one in which she had previously met him, with all the wide difference between a Baptist person and an earth soiled, uncouthly dressed digger of gutters? Anne E. Surratt, Emma Offutt, Eliza Holahan, Honors Fitzpatrick, Anne Ward, and a servant, attest all to the visual incapacity of Mrs. Surratt, and the annoyance she experienced there from, in passing friends without recognition in the daytime, and from inability to sew or read even on a dark day, as well as at night. The priests of her church, and gentlemen who have been friendly and neighborhood acquaintances of Mrs. Surratt for many years, bear witness to her untarnished name and discreet and Christian character, and absence of all imputation of disloyalty, to her character for patriotism. Friends and servants attest to her voluntary and gratuitous beneficence to our soldiers stationed near her; and, "in charges for high treason, it is pertinent to inquire into the humanity of the prisoner toward those representing the Government" is the maxim of the law; and, in addition, we invite your attention to the 'singular fact that of the two officers who bore testimony in this matter, one asserts that the hall, wherein Payne sat, was illuminated by a full head of gas; the other that the gaslight was purposely dimmed. The uncertainty of the witness, who gave testimony relative to the eoat of Payne, may also be recalled to your notice.
Should not this valuable testimony of loyal and moral character shield a woman from ready belief, on the part of judges who judge her worthiness in every way, that within the few, few moments in which Booth detained Mrs. Surratt from her carriage, already waiting, when he approached and entered the house, she became so converted to diabolical evil as to hail with ready assistance his terrible plot, which must have been framed (if it were complete in his intent at that hour, half-past two o'clock), since the hour of eleven that day?
If any part of Lloyd's statements is true, and Mrs. Surratt did verily bear to his or Mrs. Offutt's hands the field-glass, enveloped in paper, by the evidence itself, we may believe she knew not the nature of the contents of the package; and, had she known, what evil could she, or any other, have attached to a commission of so common a nature? No evidence of individual or personal intimacy with Booth has been adduced against Mrs. Surratt; no long and apparently confidential interviews; no indications of a private comprehension mutual between them; only the natural, and not frequent, custom on the part of Booth--as any other associate of her son might and doubtless did do--of inquiring through the mother, whom he would request to see, of the son who, he would learn, was absent from home. No one has been found who could declare any appearance of the nursing or mysteriously discussing of anything like conspiracy within the walls of Mrs. Surratt's house. Even if the son of Mrs. Surratt, from the significances of associations, is to be classed with the conspirators, if such body existed, it is monstrous to suppose that the son would weave a net of circumstantial evidences around the dwelling of his widowed mother, were he never so reckless and sin-determined; and that they (the mother and the son) joined hands in such dreadful pact, is more monstrous still to be thought.
A mother and son associate in crime! and such & crime as this half of the civilized world never saw matched, in all its dreadful bearings! Our judgments can have hardly recovered their unprejudiced poise since the shock of the late horrors, if we can contemplate with credulity such a picture, conjured by the unjust spirits of indiscriminate accusation and revenge. A crime which, in its public magnitude, added to its private misery, would have driven even the Atis-haunted heart of a Medici, a Borgia, or a Madame Bocarme to wild confession before its accomplishment, and daunted even that soul, of all the recorded world the most eager for novelty in license, and most unshrinking in sin the indurated soul of Christina of Sweden ; such a crime as profoundest plotters within padded walls would scarcely dare whisper; the words forming the expression of which, spoken aloud in the upper air, would convert all listening boughs to aspens, and all glad sounds of nature to shuddering wails. And this made known, even surmised, to a woman I a mater familias, the good genius, the “placens uxor" of a home where children had gathered all the influences of purity and the reminiscences of innocence, where RELIGION watched, and the CHURCH was MINISTER and TEACHER.
Who--were circumstantial evidence strong and conclusive, such as only time and the slow weaving fates could elucidate and deny who, will believe, when the mists of uncertainty which cloud the present shall have dissolved, that a woman born and bred in respectability and competence a Christian mother, and a citizen who never offended the laws of civil propriety ; whose unfailing attention to the most sacred duties of life has won for her the name of "a proper Christian matron;" whose heart was ever warmed by charity; whose door unbarred to the poor, and whose Penatee had never cause to veil their faces;--who will believe that she could so suddenly and so fully have learned the intricate arts of sin? A daughter of the South, her life amociations confirming her natal predilections, her individual preferences inclined, without logic or question, to the Southern people, but with no consciousness nor intent of disloyalty to her Government, and causing no exclusion from her friendship and active favors of the People of the loyal North, nor repugnance in the distribution among our Union soldiery of all needed comforts within her command, and Oil all occasions.
A strong but guileless-hearted woman, her maternal solicitude would have been the first denouncer, even abrupt betrayer, of a plotted crime in which one companion of her son could have been implicated, had cognizance of such reached her. Her days would have been agonized and her nights sleepless, till she might have exposed and counteracted that spirit of defiant hate which watched its moment of vantage to wreak an immortal wrong--till she might have sought the intercession and absolution of the Church, her refuge, in behalf of those she loved. The brains, which were bold, and crafty, and couchant enough to dare the world's opprobrium in the conception of a scheme which held as naught the lives of men in highest places, never imparted it to the intelligence, nor sought the aid nor sympathy of any living woman, who bad not, like Lady Macbeth, "unsexed herself "--not though she were wise and discreet as Maria Theresa or the Castilian Isabella. This woman knew it not. This woman, who, on the morning preceding that blackest day in our country's annals, knelt in the performance of her most sincere and sacred duty at the confessional, and received the mystic rite of the Eucharist, knew it not. Not only would she have rejected it with horror, but such proposition, presented by the guest who had sat at her hearth as the friend and convive of her son, upon whose arm and integrity her widowed womanhood relied for solace and protection, would have roused her maternal wits to some sure cunning which would have contravened the crime and sheltered her son from the evil influences and miserable results of such companionship.
The mothers of Charles the IX and of Nero could harbor, underneath their terrible smiles, schemes for the. violent and unshriven deaths, or the moral vitiation and decadence which would painfully and gradually remove lives sprung from their own, were they obstacles to their demoniac ambition. But they wrought their awful romances of crime in lands where the sun of supreme civilization, through a gorgeous evening of Syberitish luxury, was sinking, with red tents of revolution, into the night of anarchy and national caducity. In our own young nation, strong in its morality, energy, freedom, and simplicity, assassination can never be indigenous. Even among the desperadoes and imported lazzaroni of our largest cities, it is comparatively an infrequent cause of fear.
The daughters of women to whom, in their yet preserved abodes, the noble mothers who adorned the days of our early independence are vividly remembered realities and not haunting shades--the descendants of earnest seekers for liberty, civil and religious, of rare races, grown great in heroic endurance, in purity which comes of trial borne, and in hope born of conscious right, whom the wheels of Fortune sent hither to transmit such virtues--the descendants of these have no heart, no ear for the diabolisms born in hot-beds of tyranny and intolerance. No descendant of these, no woman of this temperate land could have seen, much less joined, her son, descending the sanguinary and irrepassable paths of treason and murder, to ignominious death, or an expatriated and attainted life, worse than the punishing wheel and bloody pool of the poets' hell.
In our country, where reason and moderation so easily quench the fires of insane hate, and where "La Vendetta" is so easily overcome by the sublime grace of forgiveness, no woman could have been found so desperate as to sacrifice all spiritual, temporal, and social good, self, offspring, fame, honor, and all the desiderata of life, and time, and iramortality, to the commission, or even countenance, of such a deed of horror as we have been compelled to contemplate the two past months.
In a Christian land, where all records and results of the world's intellectual, civil and moral advancement mold the human heart and mind to highest impulses, the theory of old Helvetius is more probable than desirable.
The natures of all born in equal station are not so widely varied as to present extremes of vice and goodness, but by the effects of rarest and severest experience. Beautiful fairies and terrible gnomes do not stand by each infant's cradle, sowing the nascent mind with tenderest graces or vilest errors. The slow attrition of vicious associations and law-defying indulgences, or the sudden impetus of some terribly multiplied and social disaster, must have worn away the susceptibility of conscience and self respect, or dashed the mind from the height of these down to the deeps of despair and reckless, before one of ordinary life could take counsel with violence and crime. In no such manner was the life of our client marked. It was the parallel of nearly all the competent masses; surrounded by the scenes of her earliest recollections, independent in her condition, she was satisfied with the mundus of her daily pursuits, and the maintenance of her own and children’s status in society and her church.
Remember your wives, mothers, sisters and gentle friends, whose graces, purity and careful affection ornament and cherish and strengthen your lives. Not widely different from their natures and spheres have been the nature and sphere of the woman who sits in the prisoner's dock to-day, mourning with the heart of Alcestis her children and her lot; by whose desolated hearthstone a solitary daughter wastes her uncomforted life away in tears and prayers and vigils for the dawn of hope; and this wretchedness and unpitied despair have closed like a shadow around one of earth's common pictures of domestic peace and social comfort, by the one sole cause--suspicion fastened and fed upon the facts of acquaintance and mere fortuitous intercourse with that man in whose name so many miseries gather, the assassinator of the President.
Since the days when Christian tuition first elevated womanhood to her present free, refined and refining position, man's power and honoring regard have been the palladium of her sex.
Let no stain of injustice, eager for a sacrifice to revenge, rest upon the reputation of the men of our country and time.
This woman, who, widowed of her natural protectors; who, in helplessness and painfully severe imprisonment, in sickness and in grief ineffable, sues for justice and mercy from your hands, may leave a legacy of blessings, sweet as fruition-hastening showers, for those you love and care for, in return for the happiness of fame and home restored, though life be abbreviated and darkened through this world by the miseries of this unmerited and woeful trial. But long and chilling is the shade which just retribution, slow creeping on with its "pede claudo," casts around the fate of him whose heart is merciless to his fellows bowed low in misfortune and exigence.
Let all the fair womanhood of our land hail you with a paeon of joy that you have restored to her sex, in all its ranks, the aegis of impregnable legal justice which circumvallates and sanctifies the threshold of home and the privacy of home life against the rude irruptions of arbitrary and perhaps malice-born suspicion, with its fearful attendants of arrest and incarceration, which in this case have been sufficient to induce sickness of soul and body.
Let not this first State tribunal in our country's history, which involves a woman's name, be blazoned before the world with the harsh tints of intolerance, which permits injustice. But as the benignant heart and kindly judging mind of the world-lamented victim of a crime which wound, in its ramifications of woe, around so many fates, would himself have counseled you, let the heralds of PEACE and CHARITY, with their wool-bound staves, follow the fasces and axes of JUDGMENT and LAW, and without the sacrifice of any innocent Iphigenia, let the ship of State launch with dignity of unstained sails into the unruffied sea of UNION and PROSPERITY.
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