"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.