The Judges of the Secret Court

by David Stacton

  While Weichmann was testifying, Payne could almost see Mrs. Surratt’s boarding-house. He’d only been there three or four days, all told, and yet he could remember everything about the place, because it was the first real house he’d been in for years. Mrs. Surratt had been real kind to him. She was a nice lady. He didn’t like to see her here.

  He hadn’t exactly enjoyed sleeping in that tree and wandering round Washington City, not knowing where to find Cap or what had happened to him. He’d only gone to Mrs. Surratt’s to find out about Cap. Then the door had opened, and he’d seen the glitter of spurs and uniforms, in the dim hallway, and made up that story about coming to see about the gutter, and they’d brought her in to identify him.

  All this malarky about her being able to see or not was nothing but lies. She hadn’t recognized him at all. But he had recognized her. Her face had been puzzled and wan. He’d wanted to get right out of there before he got her into any more trouble, but the officers hadn’t let him. So far as he was concerned, he was responsible for her arrest. It never would have happened so bad for her otherwise, if he hadn’t turned up just then.

  He’d been taken down to General Augur’s headquarters, and Mrs. Surratt had recognized him there, all right. He’d never forget the hopeless look on her face when she did. She’d read the newspapers. She must have known how the net was tightening around her.

  Something had to be done. Payne sent for Doster.

  For a wonder, Doster was allowed to come. There wasn’t room for both of them in Payne’s cell, in fact there wasn’t even room for Payne, because the ceiling was so low. But at least in the cells they didn’t have to wear that damned hood. Doster said it was a little late for Payne to want to talk, but that he’d do his best.

  Payne couldn’t understand it. There must be something somebody could do. She was an innocent woman. You could tell that just by the look of her. Doster agreed, but saw no point in telling Payne that no one in court wanted to look. About all he’d learned from Payne’s wish to talk was that the boy’s real name was Lewis Thornton Powell, that he was the son of a Baptist minister, and that he had a heart.

  XLIII

  As for Dr. Mudd’s attitude, nobody could make anything out of it, least of all Mr. Frederick Stone, his counsel. Dr. Mudd seemed determined to hang himself. His prevarications were painful. He had given his whole case away by trusting neither his counsel, his neighbours, his family, nor his kinsfolk. It was a terrible thing to try to extricate him from the web he had woven about himself. Yet Stone was his attorney, and had to try.

  Mudd denied what was true, and claimed to be true what was patently not. Half his coloured people lied for him, the other half against. Either way, Negroes were not good liars. They could be tripped up. But Mudd’s brother Jeremiah was as bad, and so were George and William Mudd. The whole clan was given to a taciturn mendacity.

  It was exasperating. The defence called character witnesses until Dr. Mudd had no virtues left to discuss. Dr. Mudd merely sat there in the dock, with his high bald forehead, compressed lips, and astute little blue eyes, and showed nothing. His attitude seemed to be that the Court had no right to arrest a Mudd. That was ridiculous. This was no time to stand on one’s high horse. But stand on it he did. Stone told him he would hang himself, if he persisted in misrepresenting the facts to his own attorney. Mudd thought that over and reluctantly emitted a little, a very little, truth. It did no good to ask him an outright question. Professional ethics forebade a direct answer about anything. Unfortunately he was applying those ethics to the wrong profession. Yet the man had to be defended. Stone cursed and did his best.

  Ewing, who had Arnold to defend, and Cox, who was saddled with O’Laughlin, had an even worse problem. It was that their clients were obviously innocent. Neither man had anything to do with the assassination. Not even the prosecution had been able to establish that they had. Arnold had repudiated the abduction plot which preceded it, and O’Laughlin had been dropped by Booth as useless. There was scarcely a reason for their presence in the court. O’Laughlin was harmless. The worst that could be said of Arnold was that Booth had once sent him fifty dollars. One might make of that what one would. Booth’s relations with young men were in some ways anomalous. But to be given money was not a hanging offence. True, he had been in the Confederate Army at one time, but supposedly that was not a hanging offence either.

  In some curious way, Arnold and O’Laughlin went together in everybody’s mind. It was not so much that they seemed twins, as that they both seemed to be slightly different versions of the same thing. So O’Laughlin’s case was treated as summarily as Arnold’s had been. The best defence for Arnold and O’Laughlin seemed to be to ignore them.

  Meanwhile the Defence tried to prove that Payne was morally insane. It was a strange thing to do to the son of a Baptist minister, who was probably as sane as anyone in that room, but he had to be defended in some way, and Doster could think of no other. Unfortunately his doctor bucked and quibbled, and had not been allowed to examine Payne anyway, so that Doster could present him only with a hypothetical case.

  The prosecution’s surgeons had been allowed to examine the accused at length, and had pronounced him sane.

  Payne could have told them that himself. He had been costive for three weeks, which had nearly driven him mad, but the question was one of sanity. The test used by the Government surgeons was called the Shakespearian Test. Barnes, the Surgeon General, considered it an infallible test of moral and mental sanity. The Shakespearian Test consisted of seeing whether or not the subject could tell the same story the same way twice. Sanity, then, consisted of no more than consistency, an idea not exposited by Shakespeare in his plays, but the test was no doubt more reliable than its name.

  As an added safeguard, the surgeons had asked Payne if he believed in God. He had said that he did, and that He was a just God. That settled the problem of God. As for Payne’s statement that he thought private assassination upon an enemy in a public war justifiable, Dr. Hall, Barnes’s colleague, said that he could readily conceive that there were persons whose minds and morals were such that they would believe a crime similar to that committed by Payne to be justifiable and proper, even a duty. The question of the sanity of such persons was not gone into. Dr. Hall had heard of monomaniacs, he said, but never met one. The insanity plea was dropped.

  By then the trial was almost over. The last testimony was heard on the 16th of June. The proceedings had lasted for thirty-seven humid days. It was now time for the summing up, and for the arguments of the Defence; and then the verdict and sentences would be delivered.

  Now that the preliminary ordeal was over with, Mrs. Surratt was moved to more comfortable quarters on the third floor of the prison. Annie was allowed to visit her. General Hartranft, the Provost Marshal in charge of the prisoners, sent her food from his own table. It was what was usually done for condemned prisoners, but everyone pretended not to notice that. General Hartranft was thought most kind.

  The male prisoners were also treated better now. Stanton was worried about their health. Dr. John T. Gray had informed him that the men had nothing to sit on in their cells but a hair pillow. That was shocking. Why had he not been told before? Stanton authorized the governor of the prison to give them a box or stool apiece, and suggested that Mrs. Surratt might be allowed a chair. Such changes or additions to her furniture as might add to her comfort were also authorized.

  Her exoneration was not.

  XLIV

  The Defence did its best. Mr. Ewing tried to establish the illegality of the court. He knew he could not expect to explain law to a courtroom of military men still under orders, but such was his duty as he saw it.

  “I should like an answer to my question, if it is to be given: How many distinct crimes are my clients charged with and being tried for? I cannot tell.”

  It was Assistant Judge Advocate Bingham who answered him. He was the ablest of the judges, and had the least compunction about what he did of any man Ewin
g had ever seen.

  “We have told you, it is all one transaction,” he said. And so it was. Ewing tried again. He pointed out that in a crime of treason, the accused had legally to have a copy of the indictment, a list of the jury, and of the witnesses to be brought against them, which they were to receive three days before they were to be tried. Nor were they to be kept in the dock in chains. Yet the prisoners were chained, and they had received the indictment only the night before their arraignment. What of it? It would never have been allowed in a civil court. But this was not a civil court. It was not a court at all. It was merely a self-constituted viewing stand. Further, the charge against the accused stated that they had maliciously, unlawfully, and traitorously conspired. So stated, the charge was meaningless, said Ewing, under any known rules of war, coming only under the head of what the Judge Advocate called, “The common law of war”. What was this law of war? It was a term unknown, a quiddity, and incapable of definition.

  The Judges Advocate let him talk on. When he had finished, Bingham informed the lawyers for the Defence that they might proceed with their arguments. Ewing had accomplished nothing. But then he had not expected to do so. To state the truth in that room was futile. No one could expect justice there. Justice does not sit in so low ceilinged or so squalid a room. At the most, they could hope for mercy or reprieve. But of what use was mercy? What use was reprieve? The soul has no reprieve. The best one can hope for there is an extended sentence.

  Yet the arguments had to be made. The first man to rise was Frederick Stone, in defence of Herold. Stone had dignity, common sense, and humanity. He faced the court. The judges sat before him, bored, a little uncertain, but with their minds made up like a picnic lunch, awaiting only a delayed departure, after one last errand was done, and they had delivered a prepared verdict and so were free to leave. Did they not realize that none of them would ever leave the memory of this sweat soaked room and this injustice?

  Herold sat between his two guards, motionless, and yet quivering, with his look of a shabby porcupine too heavy to amble off. He must have had that look sometimes in the parlour, peering into a stereopticon. To him, now, life, punishment, and the nature of his crime must be as real, as close, as flat, and as endlessly far away as that. So was the court.

  The ceiling was too low for the dimensions of the room and the acoustics were bad. Stone spoke, for what seemed a very long time, of the legalities of the case. Herold stirred. It was his life that was being discussed out there, but it did not sound like his life. His life was a matter of salt marshes and indistinguishable plump hounds who came when you called them, with a pheasant in their mouths. He was beyond thought, being simple minded, but he could not help but look indignant.

  “Who is this Herold?” asked Stone. “And what does the testimony disclose him to be? A weakly, cowardly, foolish, miserable boy. Dr. McKim, who probably knew him best, declared that his mind was that of a boy of eleven years of age, although his age was actually about twenty-two.”

  Herold did not know what his lawyer was talking about. Murder and treason, he had not been guilty of that. Booth had been guilty of that, but what had that to do with him?

  “I beg leave to conclude this defence with a quotation from Benet on Military Law and Courts-Marshal,” said Stone. “The Mandate of the Constitution must be strictly kept in view, and the benign influence of a mandate from a still higher law ought not to be ignored, that justice should be tempered with mercy.”

  Well, it would not be. Stone knew that. He sat down, and let Thomas Ewing rise to the defence of Edward Spangler, who was so innocent of any crime, there was nothing to say in his defence. Mrs. Surratt stirred uneasily. They had come to her now. Her small clothes were foul. Under her dress, she could feel the sleezy dirt of her muslin pantalettes and chemise. She had always been fastidious. It was torture for her, as she sat there, a demurely clad pyramid, to feel what might or might not be lice crawling beneath her clothes. How could they hang her? There was mercy in this world, if nothing else.

  That was what Frederick Aiken, her counsel, asked for, but he misjudged his tone. He was a young man, scarcely out of Howard College. He had not yet had the experience to learn that those things which we must learn in order to qualify for a profession have little or nothing to do with the business of practising it successfully. The schools teach us how to behave in the world as it should be. Confronted with the world as it was, Aiken made the mistake of an appeal to reason.

  He referred to Reverdy Johnson, as the great panjandrum of the legal profession who had already, so said Aiken, defined the illegality of the proceedings. And so he had, which was why Johnson was not here. He said the accused should be acquitted when there was reasonable doubt of his or her guilt. The faces of the judges did not change expression. He hit at all Weichmann’s insinuations and perjuries. Unfortunately, Weichmann had spoken for the government, which had itself spoken to them.

  And yet she was a woman. That made them restive. They had no objection to doing as they were told. They were military men of the second class. Initiative was not part of their responsibility. But they did not like to be asked to consider whether or not what they were told to do was justified.

  Aiken finished his argument and swept into his oratory, which was florid, but hopeless.

  “A daughter of the South, her life associations confirming her natal predilections, her individual preferences inclined, without logic or question, to the Southern people, but with no consciousness nor intent of disloyalty to her Government, and causing no exclusion from her friendship and active favours of the people of the loyal North, nor repugnance in the distribution among our Union soldiery of all needed comforts within her command, and on all occasions.…”

  That was true.

  “A strong but guileless hearted woman, her maternal solicitude would have been the first denouncer, even abrupt betrayer, of a plotted crime in which one companion of her son could have been implicated, had such cognizance reached her.”

  She no longer knew whether that was true or not. She could not understand why John had not found some way to get in touch with her. And yet she did. The irresponsible are always cruel to save their own skins. But surely a message would have gotten him in no danger?

  Perhaps it had been intercepted.

  “In our country, where reason and moderation so easily quench the fires of insane hate, and where La Vendetta is so easily overcome by the sublime grace of forgiveness, no woman …”

  She did not listen. She had once thought the country so herself. In the past few weeks she had learned much of those fires, and the judges, so far as she could tell, very little.

  “Since the days when Christian tuition first elevated womanhood to her present free, refined, and refining position, man’s power and honouring regard have been the palladium of her sex. Let no stain of injustice, eager for a sacrifice to revenge, rest upon the reputation of the men of our country and time. Let not this first State tribunal in our country’s history which involves a woman’s name, be blazoned before the world in the harsh tints of intolerance.”

  Such was her only hope. She admitted it. There was no one here with the will to exonerate the innocent. Innocence did not matter here. But there remained the plea to mercy. There remained only that.

  Now it was the others’ turn. Doster turned to his defence of Payne.

  “The question of his identity and the question of his sanity are settled, and among the things of the past. The sole question that remains is how far shall his convictions serve to mitigate his punishment.”

  They sure were, but Payne did not want his punishment mitigated. He had told Doster that.

  “Let us pause a moment in this narrative, and consider what, in the eyes of this Florida boy, was the meaning of war, and what the thoughts that drove him from a pleasant home to the field of arms.”

  What pleasant home? War had no meaning. It was an environment, not an idea. It might mean something to those who lost it, and to those who won
it, but all it meant to those who fought it was a sea of mud, kill or be killed, pain, boredom, and a crap game on Saturday night.

  Doster knew that. He was a military man himself, young enough to remember what war was like, and unlike the judges, out of uniform.

  “These two years of carnage and suffering, from sixteen to eighteen, when the character is mobile and pliable, and which he would have naturally spent at college among poets and mythologies and tutors [that was a laugh] are spent on picket, with fierce veterans, in drunken quarrels, with cards, with oaths, in delirious charges, amid shot and shell, amid moaning wounded and stinking dead [that wasn’t], until, at eighteen, he has the experience of a Cambronne, the ferocity of an Attila, and the cruelty of a Tartar.”

  Payne didn’t know who all those fancy people were, but he had never been cruel. Like his judges, he had merely followed orders, until he could follow them no more and had deserted.

  Military judges have no sympathy with a deserter. They forget the man in the offence, and few of these had seen a battle any closer than the nearest hill. They were career men, in a few years they would retire on pension. They had never wished to desert. Why should the ranks under them? They had served their country and their country had paid them well. No, they did not approve of deserters.

  Doster began to tell them what war was. “This, gentlemen, is the horrible demoralization of civil war. It makes loyalty a farce, justifies perjury, dignifies murder, instills ferocity, scorns religion, and enjoins assassination as a duty. And whose fault is it that he was so demoralized, and so educated in public vices, on the field of war? Was it our forefathers who sowed the seed of discord in the charter of the Union? Was it Lee and Jackson and Hill? Then punish them, and spare their pupil.”