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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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  • fred_borch
    03/23/2011 at 9:35am


    Kissable25 is right. It isn't at all clear that Aiken believed Surratt was not involved in the conspiracy. And I think it is correct to say that Aiken thought---as did every man on the commission panel -- that Mary had to know what was going on in her boarding house and what her son was doing.

    Of course, a defense counsel's personal belief in a client's innocence isn't required -- all that is required is an adequate and zealous defense. My colleague, Kate Larson, thinks Aiken did a poor job. I think he did the best he could -- and my bottom line is that even the best lawyer in Washington City in 1865 couldn't have saved Mary from the hangman's noose. Stanton and Holt were determined to see her dead.

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  • fred_borch
    03/23/2011 at 9:29am


    In re Reverdy Johnson. Somewhat of a mystery here (in my opinion). Reverdy was right on the money in contesting the jurisdiction of the military commission to try Mary Surratt. But there was no way that Gen. Hunter and the other commissioners were going to rule that they lacked jurisdiction to try the conspirators. So why Reverdy withdrew is an open question. He may have been so insulted by the questions about this loyalty that he did not want to participate. He may have been unwilling to defend Mary because he thought she was guilty. But he certainly abandoned here to Aiken and Clampit and a weaker defense.

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  • fred_borch
    03/23/2011 at 9:25am


    I'd like to stick with talking about Aiken's defense of Mary --- but -- in light of your many comments on the conspiracy ---

    It is true that the government (esp. Stanton and Holt) believed that the conspiracy was much larger than the eight defendants who were tried. I don't think you can say that they were "low level" conspirators, however. What we really have here is a trial of "trigger-pullers" or "doers" rather than "planners." The government thought that Booth and the eight defendants were part of a larger conspiracy that included Jeff Davis. But the proof adduced at trial for this larger conspiracy was quite weak. However, it is a good question as to why "only" seven men and one woman were put on trial? Why not 10 or 12? There were other conspirators out there.

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  • Lincolnite
    03/22/2011 at 2:31am


    The Federal Government had to produce guilty persons in the assassination of Abraham Lincoln, a President had never before been murdered in this country. But the guilty persons produced were very low echelon, with the exception of Booth who actually shot the President. All the others were only Booth's confederates. J. Powell (Payne), D. Herold, G. Atzerodt, S. Arnold, M. O'Laughlen, E. Spangler, J Surratt and of course Mary Surratt were nothing more than Booth's accomplices. Dr. Samuel Mudd was a part of the larger conspiracy. I realize I am straying from the discussion, but I feel it's important for all concerned to know about the real conspiracy.
    Let's not forget George Nicholas Sanders, one of the higher up conspirators. These upper echelon conspirators went to the top of the Confederate Government. Up to and including Jefferson Davis. I hope we can see discussions concerning this in the future.

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  • Kissable25
    03/21/2011 at 11:38pm


    I like this article, however I don't think you can say he adequately defended her. It sounds as though he didn't believe her at all and went out of his way to bring people to the stand who would tilt the scales too far in the other direction. No woman is as pious and perfect as he wanted to portray her. She was the owner and in charge of the boarding house and was sure to hear things just in her daily activities. Men aren't very good at keeping things to themselves, especially things that make them seem like more of a man in their eyes.

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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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