Evening star. [volume] (Washington, D.C.) 1854-1972, 1867-07-31
4 with Feelings Of pleasure bee ause he kne


iovs for constitutional law ana liberty, NOR
who have ideas of monarchy and Of rank. Give
mr. the Constitution OF my country, and iiberty
unaimmeo oy anything like monarchy or no.
ouitg, Our only kinga our only sovereign. d
the Constitution. w hen that ceases to IS the
suprtme law OF the land, and we vest indi
s v.ouais with special titles, we take away the
more deeply than do the enormity OF this
crime committed by these crazy. fanatic men
YET the charge here was murder. Are you
trying this prisoner for treason Are you
sworn 70 try treason, gentlemen Of the Jury!
A party indicted for treason is entitled to lis,
OF his witnesses. II he is tried for treason,
why did you not furnish Us with a list Of that
Ifyou meant to eali this treason, why did You
not furnish me with the list sir! II Is dis
honest. II is attempting TO trick the man out
OF his Ire The American people would revolt
condemn such q piece Of conduct. .T.'-t
Mr.. ID. then read the sixth proposition, sub.
nitted by Mr.. Pierrepoiat yesterday, and said:
Does the gentleman mean to argue that Sur
raft was in EImira participating In the con-
spiracy? That that WAS his allotted place ?
II You do, turn back to those minutes and
blush, gentlemen, tor shame. for You know
we had Z. g Lee to prove what Surratt was
In Elmira for, and the Court would not let us.
The prosecution announced that they had net
attempted to prove what Surratt was in Ell
not argue It now Let us deal fairly with this
young man, and even though the character OF
Joseph Holt should not be ylndicated by this
Judicial murder, let us do justice sull, aud
deal fairly with this young man. Mr.. Mer-
rick here read from Hae's Pleas for the
Crown, LIST vol, p. 43o, and argued to show the
9dnerence between principal and accessory.
Fret principal must be present; and, Sec
ond, must be aiding and abetting; and it he was
not present. but absent, coanseliing. Then he
was merely accessory, and could be indicted as
such only. He next read from the same vol.
ume. p 615, and argued at some length as to
the position OF principal and accessory He
next read from the same volume, AS TO
snow when party was deemed accessory be-
lore the fact. II man employ another to kill
third party, the agent committing the muir
der could be tried and hung, but the party
employing him could be tried as accessory
only, and read from the same volume %. Gle
and SIT. These principles were at the yery
foundation OF English law. The learned coun-
sci would ask the Court to abolish all differ
ences as 70 principal and accessories, but he
submitted il could not be done.
Mr. Merrick here read from Russell and
Ryens Grown cases, PIP. 25, liz, 2i6, 1853, al, to
snow that persons not present who were not
sufhciently near to give aid, were not princi-
pals. What becomes of the learned gen.ieman's
principle that if Surratt started ont from
Canada, and did not get here in time he was
responsible! Was this the law of the land !,
UT would they attempt to set all law aside in
order to nave the judicial murder of this poor
young man Your honor Will he ,p to these
sscred principles of the great common law
We want the common law On this rock we
stand and by that rock we intend forever to
stand From the earliest DAYS down to the
latest in England this principle has been rec
osnlzea. Had the President of the United States
ever ad his temples pressed with a crown. By
tue laws OF france it was treason to wish the
deaih or the Emperor. Was il treason to wish
the death OF Andrew Johnson! II so, sir. when
Indlct ThadGeus Stevens and all his corps
America ID free. Our public men are open to
discussion by that constitution once tempo
rarity suspended by usurpation: but now
70 ,rja
our free Institutions is that our President is
our servant. He claims no Fictitious authori-
", or no Fictitious sanctity. His power is de-
MIR. Merrick here referred TO the case of the
Commonwealth against Knapp Pickering
PIP. SIT. SIS, and read from the decision OF the
constructive presence. The party must he
near enough to render material aid-where he
can reach the scene with shout. 1t must be
known to the principal that he was in GER
tain place by appointment, and not there by
accident or circumstances, 1t must be proved
tnat ne was in such position by agreem emit
that ne was where he could assist; and while
there he was actually aiding in the perpetra.
ton OF the murder. Mr.. Darlington proposes
that II they have shown the prisoner was in
the conspiracy originally he was equally
guilty II they prove thai this man was in thu
theatre, or near enough to give aid, then l ad-
NIT the burden is upon me to show what he
was deing there. Mr.. M. next referred to the
t tr,an OF II, Aaron Burr, pages 3a3 3a and read
IL.
There has been introduced in this case to
harrow up your feelings against the prisoner
tsat most shocking scene At the residence OF
the Secretary OF State. Booth starts out to
murder the President, and Payne TO murder
the Secretary OF State. Can Booth be held for
the murder OF the Secretary of State! No.
Chief Justice Marshall has laid down the
law He next sp, Ike Of the case OF Aaron
Burr He was indicted for treason 1t was
alleged that he was at Blennerhassett's Island
where the overt act was committed, and it
M fnn Icyu
though he had started out the forces from that
place. Does your honor dare TO follow Chief
Justice Marshall! Do you think the people OF
America will dare to censure your honor for
treading in the pathway OF that great and
shining light in The judicial world,
Al this time i2k G'clock.) the court took a
recess for half an hour.
On reassembling at one O'clock
Mr.. Merrick resumed his argument, stating
that he " as quite unwell, but if he died he
would do so In the defence of this case, He
called attention to the decision Of the Court ii
self, and said tLat when the counsel for the
prosecution endeayered TO rebut the testimony
offered by the defence that the prisoner was IN
Elnira, they objected, claiming that they
should have proved it in chief. ard have
shown that he was not in Elmira The Court
had held that it it was not necessary to show
that he was in New York. nor anywhere else
butin Washington. The Court decided that it
was su ficient for the origin 81 case Of the pros
ecution TO prove thar he was here. HIS Honor
had determined this question, and on this de-
tel mination the case had been shaped
The Indictment charge that he was here and
committed the murder: and 1t was defective if
they had not proved that he was here He
again referred to the trial of Bnrr TO show that
the indictment should charge where the priso-
ner was In the case of Burr the Overt act " as
committed on Biennerhass cts Island, and
Chief ustice Marshal (page $500 held that as
Burr was not present there was no Evidence
to the overt act and stopped the reception of tes-
timony, because in this 1t was defective
There is another principle of law to which
he desired 10 call the aften ton of the Jury. and
that was that there should be no conviction
unless the guilt Is proved beyond a reasonable
doubi; itrequired certainty. Ii, when the Jury
re'ired. there were ten for acquittal and two
for conviction, the latter would be Influenced
the fact would cause them to doubt whether
they were correct in their Judgment or not. He
read from Sharswoods Roscoe on Criminal
Evidence, page G5i, TO show that there must be
certainty OF proof Ii they followed this law
they could not convict the prisoner. They
must find all the facts alleged. 10 be true to a
reasonable and moral certainty, and not prob
ability, to convict prisoner. There must be
a conviction satisfying judgment.
here on the 14th OF April? His presence here
must be proved. and II he was not present at
the time Of the murder, that very fact goes TO
show that he was not in the conspiracy. He
would shew that he was not here and the
burden OF proof Is or The counsel on the other
side. They come into court to prove this and
the defense 10 meet Il. The first witness they
called to prove this was Sergeant Dye, aud 1t
had been charged that he (NIr. M had
published libel On Sergeant Dve when he
offered to show that a charge was pending
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