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The Conspirator

Posted By - Fred L. Borch III
Mar 14, 2011 at 9:41pm | Filed Under “The Conspirator

“Frederick Aiken: A Proper Defense”

Read historian Kate Larson's opinion of Aiken's defense here.

Did Frederick Aiken (James McAvoy in THE CONSPIRATOR) know what he was doing in defending Mary Surratt? Was his defense theory sound? Did he call the right witnesses and ask the correct questions on cross-examination? Should he have called others? Was his closing argument on point? Did he underestimate the prejudice against Mary's Catholicism? Finally, should Aiken have applied for a writ of habeas corpus at the beginning of the trial rather than after Mary had been sentenced to death?

Aiken's general theory was that Mary was not guilty of conspiring to murder the president because she was simply a good Christian woman who ran a boarding house--and was oblivious to the plotting going on around her. To put it another way, Mary was pious and good but simply at 'the wrong place at the wrong time.' More importantly, it was not her fault if her son, John Surratt, had befriended Booth and brought the other conspirators into her home. She ran a boarding house; she needed boarders; boarders have acquaintances and friends who must be welcomed into the home if she were to be financially successful.

Aiken realized that it was John Lloyd who posed the greatest danger to Mary, because he testified that she came to visit him between four and five o'clock on the afternoon of the assassination--April 14--and ordered him to have "shooting irons" ready for men who would be coming to get them later that day. Lloyd's testimony not only put Mary inside the conspiracy to murder Lincoln, but was evidence that she actually knew that John Wilkes Booth was going to shoot the president later that day.

At the trial, Aiken attacked Lloyd in two ways. First, he argued that Lloyd had a motive to lie about Mary's participation in the conspiracy because Lloyd himself was under suspicion--and lying about Mary would please the government and minimize his own culpability. Second, Aiken insisted that Lloyd was a habitual drinker and spent much of his time under the influence of alcohol--suggesting that when he claimed Mary came to see him on April 14, he was really too intoxicated to know what Mary might or might not have been saying.

The appearance of Lewis Payne at Mary's house also was damaging, and not just because it revealed that the man who had tried to murder Secretary of State William Seward knew Mary and knew where she lived. Rather, the true import of Payne's appearance at Mary's boarding house was that, when he was in trouble, Payne went where he thought he would find refuge. It was the proverbial 'ship in a storm seeking a safe port.'

Aiken tried to diminish the damage done by Mary's denial that she knew Payne by offering evidence that she was near-sighted and had a hard time distinguishing faces because of her poor vision--but with mixed results.

Finally, Aiken knew that what hurt Mary very much was circumstantial -- about which little could be done. Since her son, John Surratt, was a close confederate of Booth's, there is no doubt that some members of the commission believed that a mother who lived under the same roof as her son must have known that that son was plotting to harm the president.

In addition to trying to discredit witnesses through cross-examination, Fred Aiken tried to present evidence tending to support Mary's innocence. For example, he called a number of Catholic priests to testify that Mary was a good Christian. He called a number of newly freed slaves to testify that Mary was friendly toward Union soldiers. He presented some testimony on her poor vision.

'Don’t let your desire for revenge cause you to commit an injustice' [by finding Mary guilty]. That is Aiken's theme--and it is a good one. He also argued that the government had not proved that Mary was guilty beyond a reasonable doubt. Again, a good argument. Aiken attacked the evidence against Mary as weak and mostly circumstantial. The dangerous nature of Lloyd's testimony, however, required a head-on attack -- which Aiken did: he insisted that Lloyd's claim that Mary had come to see him on the afternoon of the assassination was false (because of Lloyd's need to diminish his own culpability) and unreliable (because Lloyd was a drunk). Aiken also argued that there was a good explanation for Mary's inability to recognize Lewis Payne. Finally, Aiken insisted that, as a good Christian woman, Mary simply could not have been a part of anything as evil or nefarious as a plot to kill Lincoln.

It's a B or B- at worst. Given that the military commission process so favored the government, and that Aiken had little courtroom experience, his defense of Mary was really quite good. After all, despite Judge Advocate General Holt's insistence that Mary be sentenced to death, five of the nine members of the commission pushed back--and, while they ultimately agreed to vote for death, they signed a petition to Andrew Johnson in which they asked that Mary's life be spared. Without extraordinary intervention at the very highest levels of the U.S. government, Frederick Aiken would have saved his client's life, at the very least.

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  • arthurc
    09/15/2011 at 2:58pm


    whats needed is a new movie about gettesburg

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  • 04/15/2011 at 5:32pm


    this should be a movie that should scream "Oscar". If any american director can create a great movie look no further than Redford. I would love to see this film soon. Lincoln was our 16th President. This looks like a first rate film.

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  • laverge-01
    03/27/2011 at 9:51pm


    In regards to the question as to why Reverdy Johnson stepped aside in the defense of Mary Surratt, the dean of assassination studies, Dr. James O. Hall, once told me that Johnson was summoned to defend her without having the opportunity to review all facts. He commented that he would conduct the defense unless he found circumstances to indicate that she was guilty.

    When he, himself, became the target of the court regarding his wartime questioning of the validity of oral oaths of allegiance and his vociferous objection to the military trying a civilian, he retreated from appearing in the courtroom for fear that he was hurting her cause. He turned the case over to Aiken and Clampitt (who were not his law partners as many thought/still think) and worked behind the scenes. The average citizen, however, took his disappearance to mean that he thought Mrs. Surratt was guilty.

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  • fred_borch
    03/24/2011 at 12:34pm


    Robin's question / comment is a good one. I don't know how many of the commissioners were "Republicans" or "Democrats" -- and I am not at all sure about the political views of the defense attorneys either. Does someone else know??

    That said, I think you/we need to be careful with these labels for a few reasons. First of all, the Republican Party was brand new -- and so any affiliation with it would have been unusual at this point. Republicans in 1860 were pro-Union and opposed to the expansion of slavery. But they were not necessarily interested in freeing the slaves (and neither was Lincoln). In fact, abolitionists in 1860 were considered to be radicals and extremists by the vast majority of white people in America. Second, while the Democrats in 1864 were anti-war (and pro-negotiated peace), there had been a sizeable number of pro-Union Democrats in 1860.

    But all these points aside, Robin's point about Mary having an attorney with the "right" political sympathies is on-point -- which is why Reverdy Johnson says in THE CONSPIRATOR that Fred Aiken's prior service as a Union officer will help her defense.

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  • robin
    03/24/2011 at 12:49am


    One question I haven't seen addressed is this: just how politically motivated do you believe the tribunal was? It appears (from brief searches I've done) that most of the conspirators' defense attorneys were Democrats. Aiken and Clampitt were so well known in Democratic circles that they co-authored the Democrats response to Lincoln's assassination. Among the statements they wrote is this: " Resolved, that in order to vindicate the violated law, we pledge ourselves to use our utmost endeavors to ferret out and bring to merited punishment the guilty perpetrators of this most unnatural crime," I wonder what their thoughts were days later when they were asked to help in Mary's defense?

    Were most of the tribunal judges Republican? Were Democrats the only ones willing to defend the Conspirators, and was the underlying thread at the trial the same Democrat vs. Republican rhetoric that tore the country apart in the 1860 election, and during the war?

    Do you think that if Mary had Republican attorneys she may have had a better chance at avoiding the gallows?

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Fred L. Borch III

U.S. Army (Ret.) Historian

Colonel Fred L. Borch (Ret.) is the Regimental Historian and Archivist for the U.S. Army Judge Advocate General's Corps - one of only two full-time legal historians in the U.S. Armed Forces.

Fred served 25 years as a military lawyer in the Army Judge Advocate General's Corps. His areas of... More

Fred L. Borch III

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