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 constitute 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 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 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 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

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

circumstantial" (Russell on Crimes, Vol. ii., 698.)

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 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 Circumstantial 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 Massachusetts. 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_ _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." (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 analogous circumstances 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 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 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 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 the 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, 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.

The World's Best Orations, Vol. 1 (of 10) · 第 40 / 97 题