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The Conspirator

Posted By - Kate Clifford Larson
Mar 14, 2011 at 9:53pm | Filed Under “The Conspirator

“Frederick Aiken: A Rookie Defender”

Read historian Fred Borch's opinion of Aiken's defense here.

Did Mary Surratt's lawyer, Frederick Aiken provide her an adequate defense, considering the death penalty hung over the trial like a loosely secured guillotine?

Frederick Aiken was not Mary's sole attorney, as seen in the film. John Clampitt, Aiken's law partner, shared the defense table and deserves to share responsibility for Mary's failed defense. But both men were terribly inexperienced for a trial of such significance -- neither one seems to have had more than a couple years of hands-on legal or courtroom experience.

Mary's first choice of counsel was a former U.S. Attorney General, Senator Reverdy Johnson of Maryland. Johnson brought Aiken and Clampitt on as his assistants, though within days of the start of the trial, Johnson disappeared from the courtroom, leaving the day-to-day trial work in the hands of these two very junior attorneys.

We have no idea if Johnson communicated with Mary during the rest of the trial, but one can only imagine how she must have felt. She was a smart woman, and his desertion would seriously destabilize and prejudice her already weak defense.

There were many facts brought up at the trial that weighed heavily against Mary; and taken together they showed Mary's complicity with Booth's plans to kidnap, and then assassinate, President Lincoln. But she also had some advantages in court. Victorian notions of female behavior and capabilities could have worked in her favor. After all, women were rarely prosecuted for anything in that era; what's more, the Federal government had never hanged a woman. Why would they do so now?

Mary's Catholicism also played a very complicated role during the trial. It both hurt and helped her. Rabid anti-Catholicism, mostly centered on long held, deep suspicions about the Pope's wealth and power, manifested itself in the mid-nineteenth century in the form of racist political parties (the Know Nothings, for instance), anti-immigration laws, deadly violence, and everyday bigotry and prejudice against Roman Catholics. But Mary's intensely felt religious devotion spoke to an audience that also identified with her Christian piety.

The rules and procedures of a military tribunal placed Aiken and Clampitt at considerable disadvantage. Their inexperience and lack of time to prepare for an adequate defense proved to be an ill-fated. They did mount a vigorous defense -- by the end of the trial their passion and dedication to Mary is clear -- but they also made some serious missteps, steps that cost their client potentially valuable sympathy and support from the court and the public. In their defense, however, they had little flexibility, and we have no idea how much or little Mary helped them. From my perspective, she did little to aid her own defense, and an attorney can only do so much if the client is not cooperative. Indeed, it was later reported that Aiken and Clampitt were frustrated by Mary's silence.

Oddly, given the anti-Catholic sentiment of the times, the team called five priests as defense witnesses to testify regarding Mary's Christian piety and goodness. On cross examination, the priests admitted they did not know her very well. Mary seemingly had no friends. All the defense character witnesses either had negligible relationships with Mary, or were rebels themselves whose own characters reflected badly on Mary. Aiken even called Mary's rebel brother Zadoc Jenkins to testify on her behalf without identifying him to the court as a relative of hers. The prosecution took great joy in exposing what appeared to be a sneaky ruse on the part of Aiken.

Perhaps most damaging was Aiken's and Clampitt's cross-examination of prosecution witnesses. Incriminating testimony against Mary intensified almost daily, and their attempts to discredit the witnesses and their testimony nearly always backfired. In some instances, they asked witnesses to repeat their damning testimony over and over again. In fact, in several cases they recalled prosecution witnesses and asked them to repeat their testimony again. Their intent is never clear and any gains they hoped to achieve never materialized. On several occasions, Aiken and Clampitt were caught off guard by negative testimony from witnesses they called to the stand.

Mary, too, seems to have become concerned late in the trial that her defense counsel was not handling her case effectively. Mary approached Frederick Stone, David Herold's attorney, to help her defense team. But it was too late. None of the defense lawyers were having much luck in that courtroom. They all faced the same disadvantages with the military tribunal as Mary's team. Though the other defense attorneys were far more experienced, the significant, incontrovertible evidence against them all could not be overcome. These lawyers could only hope for lighter sentences. Four of the conspirators were lucky. Mary and the other three who hanged with her were not.

THE CONSPIRATOR's Frederick Aiken is a young idealist, utterly unprepared for the U.S. government's seeming disregard of Surratt's rights as a citizen. This may be an accurate depiction of Aiken. In reality, Aiken and Clampitt, convinced of their duty to defend Mary to the best of their abilities, lacked experience as trial attorneys and were left to defend her against great odds. But some of that responsibility must be placed squarely with Senator Reverdy Johnson. His actions may have ultimately doomed her.

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  • loveshistory63
    10/11/2011 at 7:16pm


    Thankyou laverge-0 for all the info on Frederick's disappointing there are no photos of him, I loved James McAvoy's portrayal of him he was brilliant!!

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  • laverge-01
    10/10/2011 at 6:55pm


    We recently had the screenwriter, James Solomon, speak at an event at the Surratt House Museum in Clinton, Maryland. He kept an audience of nearly 100 spellbound with his explanations as to what it takes to make points in limited amounts of time, use artistic license to get those points across, decide what to leave in and what to leave out. It is not as easy as one would think - especially when the target audience needs to be entertained as well as educated. This was never intended to be a documentary.

    That said, I believe Sarah was shown as Aiken's fiancee instead of wife to reinforce the idea of how much Frederick was risking in order to fight for legal justice. In 19th-century culture, 98% of wives stood by their man through thick and thin. A fiancee still had options. Frederick was risking his love by supporting his ideals.

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  • jimknut
    10/10/2011 at 4:16pm


    In the film Frederick Aitken (James McAvoy) is presented as if he is courting Sarah (Alexis Bledel). However, I have read that they married in 1857; well before the events of this film. Has Mr. Redford and his screenwriters and historians offered any explaination as to why they took dramatic licence with this?

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  • bluegreydude4
    10/04/2011 at 12:46pm


    I don't believe that Aiken's lack of experience had as much to do with Mary Surrat's conviction as did the fact that the government making sure that they were tried by a military tribunal. As anyone who is familiar with military courts martial will tell you, it is nothing like civilian court. In civilian court, the burden of proof lies with the prosectution, with military courts martial, the accused is assumed guilty and must prove his or her innocence. By controlling what could be entered into evidence, who could or could not testify and by not allowing the defense fair access to the evidence and witnesses being brought against her, the government assured a conviction and because of the duplicity of the Secretary of War and the President of the United States,(both of which openly sought to punish the South for the Civil War) everyone who truly understood what was at stake, knew that there could be only one Stanton himself said after the executions, "We wish to know their names no longer".

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  • laverge-01
    09/24/2011 at 6:55pm


    There is no known photograph of Frederick A. Aiken. He and Sarah had no children, and all personal effects appear to have been discarded by distant relatives years ago.

    It was not until after The Conspirator went into production that anything of real substance was known about Aiken. A fan of James McAvoy, C. Christensen, decided to read about the character he would be portraying and found nothing. Being a family genealogist, however, she knew the right buttons to push and has done a remarkable job of fleshing out his biography -- a very interesting one. She has shared her findings with the Surratt House Museum in Maryland and also with its 1500 associate members around the world.

    If you would like to receive a copy of the article she shared in the museum's monthly newsletter, contact me at Just this week, she has found even more information about him prior to the war.

    You don't have to be a professional historian to do historical research - and find neat things.

    BTW: Frederick Aiken is buried in an unmarked grave in Oak Hill Cemetery in Georgetown, Washington, D.C., home of some famous "residents" such as Edwin Stanton.

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Kate Clifford Larson

Historian and Author

Kate Clifford Larson, PhD., is an historian and author of "The Assassin's Accomplice: Mary Surratt and the Plot to Kill Abraham Lincoln" (Basic Books, June 2008). With degrees from Simmons College and Northeastern University, and a doctorate in history from the University of New Hampshire, Larson... More

Kate Clifford Larson

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