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?'

"If Judge Fisher's instructions made you find it, bring Judge Fisher. Where is the Judge? Think you he will step forward and say, 'I will take the burden.' No, gentlemen. Let me say to you now, that by the laws of the land, and by the laws of God, the responsibility is on the judge to instruct you rightly, to guide you correctly, to give you wise and judicious counsel, not as mandatory and binding on your conscience, but as advisory to your judgment, to enlighten the pathway you are to tread in your investigations. We shall ask no instructions, and desire none. The law of murder is too plain to need any, and you, gentlemen, are too intelligent not to understand it. Indeed, if we desire some explanation, _we would prefer to give it to you in the way of argument, rather than trust it to the distinguished judge who presides_. We would trust it to argument, because, with regard to these plain questions, all men can comprehend what the law is. _We would prefer trusting it to the weight of our own character with the jury as men and lawyers._" After this ingenious appeal to the jury, the learned advocate then proceeded to recount and expound the propositions of law on which the District Attorney had invoked the instructions of the Court.

Judge Fisher in charging the jury made the following reference to this remarkable argument by Mr. Merrick: "You have been told, gentlemen, by the counsel for the defense, in a manner not very respectful, certainly by no means complimentary to the Court, that you are the judges of the law as well as the facts in criminal cases, and that you have the right to disregard the instructions of the Court in matters of law; and they tell you that their expositions of the law, and the weight of character they possess, may be more safely relied upon than the instructions which may be given you by the Court. The weight of character of a prisoner's counsel would be a variable, and not unfrequently a very unsafe criterion by which the jury should judge as to the law of his case. Perhaps they would have you regard the court as sitting on the bench merely to discharge the duty of preserving order and decorum in the court room, which probably the crier of the court or baliff might be disposed to regard as an usurpation of his prerogative. If the jury are entirely to disregard the judge's instructions as to the law of a case, I confess I can see but little left than that for him to perform.

"It is true, gentlemen, that you have the power, and in cases where your consciences are satisfied that the instructions of the Court are dictated, not by an honest desire to enlighten the jury as to the true state of the law, but by corrupt and wicked motives, you have the right to disregard the instructions purposely intended to mislead you. But to claim that the jury are better judges of what the law may be than the Court, is about as reasonable as to assert that a plain farmer or merchant may be taken fresh from his plough or his counter, and be more capable of navigating and manoeuvering a steam frigate, or to lead your armies to certain victories, than your admiral or commander-in-chief. In my opinion, you have just the same right to disregard the evidence of the witnesses who stood before you unimpeached in any matter respecting the facts involved in the cause, as you have to disregard what the Court may say to you, under an official oath, as to the law that may apply to the facts. A jury have the _power_, if they choose to exercise it, after having assumed the obligations of an oath, to say that they will neither believe the judge nor the witnesses, but decide upon the law and facts according to their own caprice, or the confidence which they may repose in the character of counsel on either side, but such is not the purpose for which juries were instituted, and they have no right so to act. When the witnesses in the cause have testified before you as to the facts, it is then the office of the judge, under his official oath, to testify to you in the spirit of truth, according to the best of his knowledge and ability, as to what is the law which may be applicable to those facts; and an honest jury will disregard neither the testimony of the witnesses nor the instructions of the judge, unless they are satisfied that corrupt motives have actuated them. They will leave the party where the law leaves him, to his legitimate redress,--a writ of error to the appellate court."

Referring to the course of counsel in this illegitimate appeal to the jury in their argument on this point, and to their appeal, based on the number of their exceptions to the rulings of the Court, the judge made this further remark in vindicating the position and dignity of the Court: "In reference to these matters I may observe that, perhaps, I owed it to the dignity of the bench to have interrupted counsel in the conduct of the case in this particular, but in a cause involving the life of the prisoner upon the one hand and the vindication of the outraged justice of a nation in mourning upon the other, I deemed it my duty to cast not an atom in the one scale or in the other which might by any possibility tend to prejudice either side of the issue."