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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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  • 03/16/2011 at 5:32pm


    Aiken provided the best defense he could but Surratt was innocent. That's the American judicial process and innocent people are sometimes found guilty and vice versa. The American public was interested in a "lynching" and refused to accept that its protection of the President could be circumvented by a lone assassin.

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  • fred_borch
    03/16/2011 at 3:48pm


    It is certainly true that more than a few Americans have been unwilling to believe that Lee Harvey Oswald was a lone gunman -- and some still believe that there must have been a conspiracy to assassinate JFK.

    So your point is a good one -- and it also illustrates how we tend to see the Lincoln assassination thru the lens / prism of the Kennedy murder. But, unlike Lee H. O., Booth not a lone gunman -- and he certainly was not a scapegoat.

    After all, he hasn't been unjustly or unfairly blamed for killing Lincoln. Booth was, in fact, proud of what he had done and he sincerely thought that many Americans would be proud of him as well. And there is no doubt that there were others who were helping Booth (Herold was with him when he died; Payne tried to kill Seward). So there was a conspiracy.

    But did the government need a scapegoat in the Lincoln assassination? Secretary of War Stanton wanted the seven men and one woman on trial to be punished severely -- because he thought the American people wanted and needed this. He wasn't particularly concerned with how fair was their trial -- because he was convinced that they were guilty and that they had to be punished as soon as possible. But is this scapegoating??

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  • AnnF
    03/16/2011 at 1:04pm


    Another "have to find more quilty", like the Kennedy assassination? Was Booth a scapegoat. Did they need a scapegoat in the Lincoln assassination as well?

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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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