Something of the same idea inspires the fine opening of Aiken's defense of Mrs. Surratt. It lacks the sinewy assertiveness of Adams's terse and almost defiant apology for doing his duty as a lawyer in spite of public opinion, but it justifies itself and the plea it introduces.
Until within the recent past, political antagonisms have been too strong to allow fair consideration for such orations as that of Aiken at the Surratt trial. But this is no longer the case. It can now be considered on its merits as an oration, without the assumption that it is necessary in connection with it to pass on the evidence behind it.
The assassins of President Lincoln were tried by military commission under the War Department's order of May 6th, 1865. The prosecution was conducted by Brigadier-General Joseph Holt, as judge advocate-general, with Brevet-Colonel H. L. Burnett, of Indiana, and Hon. John A. Bingham, of Ohio, assisting him. The attorneys for the defense were Reverdy Johnson, of Maryland; Thomas Ewing, of Kansas; W. E. Doster, of Pennsylvania; Frederick A. Aiken, of the District of Columbia; Walter S. Cox, John W. Clampit, and F. Stone, of Maryland. The fault of the Adams oration in the case of the Boston Massacre is one of excessive severity of logic. Aiken errs in the direction of excessive ornament, but, considering the importance of the occasion and the great stress on all engaged in the trial as well as on the public, the florid style may have served better than the force of severe logic could have done.
DEFENSE OF MRS. MARY E. SURRATT
For the lawyer as well as the soldier, there is an equally pleasant duty—an equally imperative command. That duty is to shelter the innocent from injustice and wrong, to protect the weak from oppression, and to rally at all times and 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 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 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 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 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 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 court-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 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.