[CHAPTER II.]
A CRITICISM OF THE DEFENSE.
It now remains for the writer to review the course of the defense in this trial, and to point out its policy, its spirit, its perversion of facts, and disregard of evidence in carrying out its purpose to appeal, first, to the prejudice of the jury, and then to pervert public opinion.
The prisoner was defended by counsel of known and acknowledged ability—men of reputation for their knowledge of law, and ability as advocates at the bar. But despite all this, their defense of Surratt was as unique in its character as was the case itself. Made by men learned in the law, it ignored the requirements of law, and so was managed by them more in the light of its political relations, than that of its legal requirements. In proof of this assertion I shall quote freely from the arguments of counsel, and I think I shall be able to show that I am fully justified in expressing this opinion. I shall first refer to the remarkable number of exceptions taken by the counsel for the defense to the rulings of the Court on questions of evidence, and the use made of them. I will quote first from the argument of Mr. Merrick.
"In a prosecution such as this, conducted against one of its citizens by a government, what should be the course of that government, and what is due to the jury and to the prisoner? Whatever there is that can throw light upon the alleged crime should be let into the jury box. All evidence that could go before the human mind calculated to impress it with conviction, or modify its opinions, should be allowed to come before you. What has been the case with regard to this trial? Wherever any technical rule of law could by any constraint whatever exclude a piece of testimony calculated to enlighten your judgment, it has been invoked to exclude that testimony; has been bent from its uniform application and its generally understood principle for that purpose. I shall find no fault with his honor on the bench in his rulings, for this is not my place to express an opinion about a decision of the Court.
A member of the bar should be loyal to the tribunal before which he practices, to the full extent of gentlemanly and professional courtesy, and in the court-room bow with pleasant acquiescence in whatever the judge may say. With that acquiescence I bow, and yet there is nothing—and I must say this, and say it in justice to myself—there is nothing that has fallen from his honor in the adjudication upon these questions of testimony that has changed my opinion that the testimony should be allowed to go to the jury. One hundred and fifty exceptions taken by the defendant's counsel encumber this record. It is certainly strange that there should have been so wide a difference, and I regret it. Without complaining, as I said, of the decisions of the Court, it can only be accounted for from the fact that the attorneys representing the government in this case have strained every principle of law, and invoked in their behalf every discretionary power of the court, as against the prisoner."
Notwithstanding his semblance of disclaimer, Mr. Merrick here makes an appeal to the jury, on the implied charge of partiality on the part of this Court. In giving his charge to the jury Judge Fisher very properly takes notice of this charge, and effectually rebukes the arrogance of the counsel in the following language: "Much stress has been laid by the counsel for the defense upon the fact, which they assert, that during the progress of this trial more than one hundred and fifty exceptions have been taken to the rulings of the court concerning the admissibility of evidence. If they have found themselves under the necessity of calculating the number of these exceptions, and parading them before you, with a view of having you render a verdict according to irrelevant evidence not before you, rather than according to the legal evidence which you have heard, I have no disposition to criticise their taste, but leave them to present their case in their own way. At the same time I feel it my duty to remark to you that if counsel will be so bold as to present propositions to the Court which every tyro in the profession ought to know are untenable, it does not necessarily follow that the judge must always be so weak as to sustain them. It has heretofore been supposed that exceptions to the rulings of a judge at nisi prius were intended to be passed in review before the appellate tribunal. I have never before known them to be neatly calculated and presented to the jury by way of argument."
A jury is sworn to decide according to the law and evidence in the case. But how are jurors to decide according to the law, not being acquainted with law? It is manifest they cannot take their instructions on the law from the counsel employed in the case, as they will naturally differ widely in their constructions of law. It is made, therefore, the duty of the court, an impartial tribunal, skilled in law, to instruct the jury on all the points of law involved in the case. In this remarkable case the counsel for the defense, feeling that the court could not sustain the interpretations of the law on several important points which they had endeavored to impress on the jury in their arguments, took the remarkable position that the jury was to be its own judge of questions of law. Mr. Merrick, in the course of his argument, took this position, and argued it at some length, as follows: "The jury is specially charged, it is true, with the fact; but they are also charged with the law. You are to instruct them by your learning, your wisdom, and by your authority. You are to advise them; but they must know and they must believe. My learned brother on the other side (Mr. Carrington) seemed to feel that it was necessary to press you, gentlemen, very hard upon your obligation to follow the instructions of the Court. I have never heard him say that before. Other cases have been tried before this, but I have never heard him talk so earnestly to the jury about being obliged to follow the instructions of the Court. Why is he so solicitous in this case? Does he think you won't dare to do right? He told you, gentlemen of the jury, that you were sworn to try this case according to the law and the fact, and that you must take the law from the court; and if you departed from the law so given you, you would be perjured. I tell you it is no such thing. If you find a verdict of guilty, and do not believe the party to be guilty in every particular, in your judgment and in your hearts, then you are perjured men, I care not what the Court's instruction is.
"Has my learned friend read the oath? I don't think he has. Mr. Clerk, will you be kind enough to read it." (The clerk then read the oath.)
Mr. Merrick resuming, said: "Where is the law? Why did you tell the jury what you did? The language is, 'And a true verdict give according to the evidence.' My learned brother has had that oath ringing in his ears for six years. Why didn't he tell you what it was? You are, gentlemen, to find a verdict according to the evidence. What sort of verdict are you to find? Guilty, or not guilty. That is all you can say. You cannot say 'Guilty,' under the Court's instruction, or 'Not guilty,' under the Court's instruction. If you say 'Guilty,' you say 'Guilty as indicted,' upon your conscience resting the weight of the guilt. If your verdict should be 'Guilty,' it will be followed by blood, for you see there is no mercy anywhere in those that represent the government. If your verdict is guilty, then, indeed, you look upon a dying man. Upon your consciences will rest the responsibility of that verdict.
"And let me say to you, gentlemen of the jury, that on that awful day when you shall stand before the last tribunal to be judged, and the All-Seeing Eye shall look into your hearts and ask you why you found this verdict of guilty, think you He will harken if you say, 'The judge's instructions made me do it.' He will say to you, 'Were you not free agents, with minds and intellects, sworn as a jury in a free country? Were you not told by the counsel for the prisoner at the bar that it was your duty to find this verdict according to your judgments, your consciences, and didn't you disregard him?'