The Judges of the Secret Court

by David Stacton

  John was irresponsible. She had always known that, even though she had refused to admit it, even to herself. And she was deeply hurt that he had not managed to smuggle some word to her in prison. Hurt, but not surprised. He had none of the character of his older brother.

  She was not unduly worried for herself. But what had happened to John, Annie, and poor Honora Fitzpatrick, her boarder, who certainly had nothing to do with this mummery? For herself, she had been told that she had merely to sit through this trial. That was her punishment, but that would be the end of it. No matter what the judges might say, no man would hang a woman. When the furore had died down, she would be quietly paroled.

  Such was Stanton’s way of keeping her quiet. He wanted no one to speak out, which was why he allowed the prisoners to speak to counsel only in court, and he had bought her silence with a rumour. She believed that rumour. There was no reason why she should not, for it was only what Stanton did that was novel. His promises were as conventional as any man’s, and so far he had not told even the judges what it was he meant to have them do.

  Yet she was bewildered. She had been put in a solitary cell with damp walls and very little light. Only the Superintendent of the prison, a Mr. Wood, had been so much as civil to her.

  One day, during her constitutional, she ran into Annie and Honora. Honora had a newspaper with her. In it Mrs. Surratt could read a denunciation of herself and of everyone she knew. It shocked her. There was no trick her captors did not stoop to. No doubt the newspaper was another one. She read the account and said, “I suppose I shall have to bear it.”

  And so she bore it. It was not, however, so easy to endure.

  On Thursday, May 11th, the prisoners were allowed to consult their attorneys, whom they had never seen, for the first time. Court adjourned for the day to make that possible. But what can one say about a matter of life or death in one day?

  On the 12th, the legal jockeying over with, the indictment began. It lasted for days, alternating with the general testimony, so that as soon as Counsel defended client against one charge, up rose another. The indictment shook her. It was monstrous what she was accused of.

  It was monstrous what they were all accused of. Only Payne seemed to take those accusations calmly. He knew perfectly well how much justice the world contains. That was what had made him willing to commit murder for a friend.

  She was guilty of the plot to capture Lincoln. She was the intimate tool of Jefferson Davis. She was in the conspiracy to destroy naval vessels and buildings in the Capital. She was responsible for the City Point Explosion. She would share in the million dollars a Mr. Gayle, a mad lawyer from Selma, Alabama, had demanded as the price of assassinating everyone in the Northern cabinet. He had put an advertisement in the papers in order to make his bid public. She had never even heard of Selma, Alabama. Nor had anyone else in the courtroom. But there was the newspaper clipping of Mr. Gayle’s advertisement, entered as a government exhibit against them.

  She and the others had conspired to raid Buffalo, Detroit, and New York. She had aided in the starvation of Union prisoners, she who had fed Yankee soldiers at Surrattsville for nothing, because she was sorry for the boys, whatever side they were on, when their own commissariat failed and they were hungry. She was guilty of Andersonville. She had helped to mine Libby Prison, she who did not even know what a torpedo was. And a wretched shirtmaker’s jobber from London, England, reported that one Dr. Blackburn, a Freemason, had promised him 100,000 dollars, if only he would sell shirts infected with plague, and so spread pestilence in Washington City. A Mr. Brenner, of Washington City, even said that the shirts had been sold to him.

  In some way the prisoners were responsible for that, too, right down to Dr. Mudd, who, being a doctor, must surely be fully conscious of the mischief planned.

  The web of the assassination plot was outlined while she listened. She was caught in its strands. What did she, or anyone else there, know of shirts sold by an anonymous Englishman? He might just as well have been selling Jesus’ cloak, for all the sense that shirt selling made. Indeed, he might better have been.

  He was a little man who stood in the dock on tiptoe. He had perjurer written all over him. Or perhaps he believed what he said. Perhaps they all believed it. It was patent: everyone but the Defence was doing as he had been told. And for that matter, who could believe in the probity of the Defence? Who could believe in anything?

  XXXVII

  The accusations were the worst. The Defence, before the fury of those, sounded almost meaningless. Even the judges showed their boredom: there was nothing novel about a man’s defence. The accusations, at least, had a certain interest, for they were levelled by such disparate people.

  The courtroom was forty-five feet long and thirty feet wide. It had four badly placed windows. The judges sat against one wall, the reporters and the Defence Counsel against the wall opposite. The witness stand was in the middle. The prisoners sat on a raised dais at one end of the room, so they could see and be seen. The room had new furniture and was freshly painted. It had been fitted up for the trial. But after a few days it smelled dingy and discouraged enough.

  Atzerodt, Arnold, Spangler, Herold, and O’Laughlin were only small fry. Not much was to be said either about them, or in their defence. Along that far wall, only Mrs. Surratt and Dr. Mudd were worth the catching, only that insensate giant Payne worth the pulling down.

  The small fry did not see the trial in that way. As far as Herold was concerned, the longer he was talked about the better he liked it. The testimony lengthened his life. At least to have people talking about him was better than silence. He did not like to be ignored.

  He sat there with the absurd quavering self-importance of the mentally retarded and did not much care for what the witnesses had to say. He saw no reason why he should be condemned. He had run away when Payne did that wicked thing. And as for going along with Booth, what choice had he had? Surely he was not to be blamed for doing that.

  He looked curiously at people he had once known.

  James Nokes was up there in the witness box. Old Mr. Nokes was the Herolds’ nextdoor neighbour, and an old friend. He tried to wave to Mr. Nokes, but being shackled that way, he couldn’t. Mr. Nokes would get him out of this.

  Mr. Nokes said that Herold was a light and trifling boy, and that very little reliability was to be placed in him.

  Herold did not think that fair. Mr. Booth had relied on him. And of course he lied. After all, nobody wanted to be caught out. He felt hurt. He had always liked Mr. Nokes. He didn’t understand why Mr. Nokes had to talk about him that way.

  Now it was Dr. Charles W. Davis, who agreed that Herold was a trifler. What was that supposed to mean? What was wrong with trifles? Davis also said he was easily led. Well, if that had anything to do with Mr. Booth, he had liked Mr. Booth. He never followed anybody he didn’t like.

  “He was more a boy than a man,” said Davis, and stepped down. Herold didn’t like it. On the other hand, they wouldn’t hang a mere boy, would they? A boy didn’t mean any harm.

  Dr. Samuel McKim testified next. Dr. McKim had never liked him. Again there was that line about his being a very light, trivial, unreliable boy. “So much so that I would never let him put up a prescription of mine if I could prevent it, feeling confident he would tamper with it if he thought he could play a joke on anybody. In mind, I consider him about eleven years of age.”

  Well, what was wrong with a joke once in a while? You had to get some fun out of life. Herold waited to see what the next witness would have to say.

  There wasn’t one. This was supposed to be his defence, and yet there wasn’t one.

  It was the turn of the prosecution. A Mr. Doherty was telling the court what Herold had said when they tied him to that tree. He’d forgotten, but they said he’d said: “Let me go. I will not go away. Who is that who has been shot in there in the barn? I did not know that it was Booth.”

  He’d been pretty sharp to think of saying that, but what
he had said did not seem to help. Nobody ever believed you. Even when he’d said he’d met Booth by accident, seven miles out of Washington City, at midnight, they hadn’t believed him. Well, he had met Mr. Booth by accident. He had never wanted to see Mr. Booth again. All he’d been doing was lighting out for the swamps until things blew over. He always felt safer in the swamps than he did at home.

  And now they wouldn’t even let him go home. It wasn’t his fault Mr. Booth had made him guide him through the swamps. He’d been scared. He hadn’t known what to do, and at least Mr. Booth had been somebody to be with. Didn’t they understand that?

  No, they didn’t.

  XXXVIII

  It was Edward Spangler’s turn to stand accused.

  At least Spangler knew why he was here. He sat unshaven in the dock, blinking only because he had tic douloureux. He was here because for once in his life, he had done something decent, and he was not ashamed of it.

  Spangler had no doubts about what he was. He was a drunk. Life hadn’t gone right for him ever, and it had been a lot worse since his wife had died a couple of years ago. She was buried in Baltimore. That was why he always called Baltimore home, even though he worked in Washington City and slept at Ford’s Theatre. Why shouldn’t he sleep there? That way he saved money.

  He knew what the world thinks of a drunk, and what it can do to a man who can’t defend himself. He’d had forty years to find out. But because a man’s a bum doesn’t mean he’s stupid, and since he hadn’t been able to get any booze in prison, his head was pretty clear. He could follow what was going on, all right.

  He hadn’t given a damn about President Lincoln, and he had a pretty good hunch that these men didn’t either, except perhaps some of the Counsel for the Defence and General Lew Wallace, on the judges’ side. General Lew Wallace sometimes had the bamboozled look of a soft-shell liberal who doesn’t quite believe that what he is doing for the public good is necessarily justified. Wallace was a gentleman, all right, but the other judges were politicians, and a gentleman among politicians is the easiest dupe in the world. He has about as much chance of survival as a piece of ice on a hot stove.

  Alone of the conspirators, Spangler wasn’t guilty of anything, apart from having given Booth a head start. That meant he could see the trial for the farce it was.

  Through some accident, at the beginning of the trial four of the conspirators had entered with those canvas snuffers on. The snuffers were something Stanton insisted they wear, but not something he wanted seen. The accident did not happen again. One gasp from the spectators abolished the snuffers. But Edward Spangler had been one of those four.

  He did not like to be stared at. It was quite true, as the witnesses said: he had no self-respect. But he did not like people to observe that for themselves.

  He could neither see nor talk to his fellow prisoners, most of whom were strangers to him. He had met Herold and Payne casually, the others he did not even recognize by name. What he could see was the court, the spectators, and the Counsel for the Defence.

  Of Defence Counsel he did not think much. Only two of the men seemed worth bothering about: former Provost Marshal William E. Doster, because he seemed to know his business, and Reverdy Johnson, because everyone knew who he was. Not that Johnson wasn’t an over-bloated gasbag. He had a mouth modified by too much sucking at the public tit, and the result was an angry and petulant expression. On the one hand, he posed as a person of probity. On the other, he wanted more. You could tell just by looking at him that he was not happy to be here. He had chosen the wrong lost cause. To get a reputation as a fearless champion of lost causes, you must be canny to choose only that lost cause which people secretly long to find again. One look at the judges, and Johnson knew that he was in the wrong room. He was chief counsel for Mrs. Surratt’s defence.

  General Hunter, the presiding officer for the prosecution, rose to read a statement by General T. M. Harris, one of the judges. No one could ever be quite sure of what Reverdy Johnson might do, but if he wanted out as much as his appearance indicated he did, Stanton was prepared to give him a pretext.

  In 1864 Reverdy Johnson had advised the members of the Maryland Convention to take the oath demanded of them, even though at the same time telling them that the Convention had no right to impose it. Therefore, said Hunter, reading patiently, Johnson did not appear to believe in the validity of sworn oaths, and so was not competent to stand attorney in this court.

  Johnson’s face turned the colour of boiled beef. It was an out, of course, but he was so infuriated to have his integrity impugned, that he launched into a defence of himself which soon turned, as most of his nobler speeches did, into a denunciation of everybody else. Who gave the court jurisdiction to decide the moral character of the attorneys appearing before them, he demanded. What had his own moral standing to do with the case in hand? Besides, he was a member of the United States Senate, and who was responsible for the legality of this court, if not the Senate?

  The court had to back down. Its leaders had misjudged Johnson.

  But Johnson had misjudged himself. He backtracked. Having been offered an out, he took it. His honour was impugned. He would not appear before this court again. He withdrew, and left Mrs. Surratt to the mercies of his colleagues, two bright young men competent enough to toddle through a straightforward case in a court of law, given a judge to guide them, but not old enough to stand up against an unjust magistrate. Lost causes were one thing. Being trapped on the losing side was quite another. Johnson had his career to think of. As a parting shot, he filed an argument on the jurisdiction of the Military Court. It was futile, of course. One cannot sway a group of generals by means of a legal quibble. But it would look well in the newspapers.

  The court had no difficulty in turning down his argument. That wily creature, the Honourable John A. Bingham, the Assistant Judge Advocate, knew his business. He said that no Court had the power to declare its own authority null and void. “Is it possible,” he asked, “that any body of men, constituted as a tribunal, can sit in judgment upon the proposition that they are not a court? Why not crown the absurdity by asking the members to determine that they are not men?” That silenced the argument on jurisdiction, and Johnson slipped gratefully out from under.

  The absurdity remained. Edward Spangler watched the Honourable John A. Bingham, who had the hard face of a Longfellow who had gone into banking. In that face Spangler could see that their lives had already been bought and sold. Bingham was only there to supervise the transaction. He knew Stanton and had a seat in Congress to keep.

  Spangler began to sweat. The courtroom was sultry, and he suffered from prickly heat. But he went on watching. As for the evidence itself, he could make nothing of it. Ford was on the stand. Booth, he said, was a peculiarly fascinating man. He had known how to control the lower class of people better than an ordinary man would have done.

  That’s me, thought Spangler. I’m the lower class of people, all right. But he was grateful to Ford. Ford was doing his best for him, and under the circumstances, that was not only damn decent, but showed courage. It was more than most of the witnesses were trying to do.

  He began to see quite easily how a man could be hanged for trying to help a friend. He didn’t see that was his fault. You don’t usually ask a friend if he’s done anything criminal, before you help him.

  Now they were talking about whether he wore a moustache. He didn’t bother to listen. He’d never worn a moustache in his life.

  That was what would save his life.

  XXXIX

  The first thing which made Mrs. Surratt panic was the withdrawal of Reverdy Johnson. He was an older man. She had always trusted older men. Clampitt and Aiken, her other lawyers, were only children. She sent a message to Stone, who represented Herold and Dr. Mudd. Of all that crowd clustered beyond the dock in their defence, only he seemed to have enough character to stand up to the court. But there was nothing Stone could do for her. He had double work already. There was nothing anyo
ne could do.

  Yet there was always a rustle of attention whenever witnesses appeared for or against her. There were more women in the courtroom on those days. She had seen the faces of such women before, as they chattered away amiably about the downfall of a friend. She knew all about that snakelike false sympathy. She had once or twice been guilty of it herself.

  Honora Fitzpatrick was on the stand. She was an innocent girl, but Stanton had given her the privilege of seeing the inside of a prison, all the same. She appeared as a witness, though not a willing one, for the prosecution, and was forced to admit that she had gone to Ford’s Theatre one evening in March, accompanied by John Surratt and by Payne. Poor girl, that was as close to conspiracy as the detectives had been able to draw her.

  By the time the Defence recalled her, at the end of May, Honora had become hollow eyed. No doubt she did not like to be so close to death. For the defence she said that Mrs. Surratt’s eyesight was defective.

  It was a fault one usually did one’s best to conceal. Now her life seemed to depend upon it. It was because she had said she had not recognized Payne in the hall, that night of her arrest. One detective said the hall had been purposely dimmed, another that it had been as purposely brilliantly lit. Whether purposely or not, she remembered it had been dim. Why did the first detective seem so nervous about telling what was merely the truth?

  She found it strange to see her former boarders in the witness box. They were only boarders but, a lonely woman, she had tried to make friends out of them, as she did of everyone she met. Perhaps that had been her mistake. There must be some moral reason why she was here.

  Now they had her brother on the stand. He, too, had been flung in jail. There seemed no end to the capacity of that prison. It was to her brother that Stanton had relayed that rumour about her own eventual release, if only she would say nothing. So she said nothing. But she began to tremble.