The Judges of the Secret Court

by David Stacton

  That was never done. From time to time the world enjoys its holiday, and reverts to its natural condition, and is shamefaced only afterwards. There will always be wars. Now if Doster had just mentioned the destruction of private property attendant upon a conflict, he might have sobered his judges’ military exhilaration. All men own some property. But no other restraint would govern the outbreak of that hilarious charade, a war. Men do not like to die. But from time to time, given they do not have to knot the rope themselves, they like the kill.

  Doster was a man of action. He admired vigour. He had a fine eye for a good horse. And something about Payne moved him, as he had once been moved by a good horse who went wild and had to be shot. One hates to see the proud beast go.

  It was Booth who had gotten the boy here, just as that horse had been savaged by having the wrong owner. Booth, whom the boy called Cap, was dead. Given an easy rider, the boy would behave well enough. Yet the case was hopeless. He knew that.

  “What then has he done that every rebel soldier has not tried to do? Only this: he has ventured more; he has shown a higher courage, a bitterer hate, and a more ready sacrifice.”

  It was true. He had only attacked Seward because Cap had asked him to.

  “As Arnold Winkelried was braver than all the combined legions of Switzerland, as Leonidas, as Mucius Scaevola, as Harmodius and Aristogeiton, as Gerard of the Netherlands, Revaillac, Jacques Clément, Orsini, Byron, Garibaldi, Kossuth, Hofer, and Washington …” Doster had gotten carried away. From there it was only a step to Shakespeare. “So Brutus said in the market place: As I slew my best lover for the good of Rome, I have the same dagger for myself when it shall please my country to need my death.”

  The boy was determined to die. And all because of that white skinned wretch Booth, and Mrs. Surratt, perhaps. The boy, at least, was capable of grief, compunction, and atonement. Who else in this courtroom, prisoners, judges, and counsel, reporters and sensation mongers, even himself, could say as much?

  Doster realized he had gone too far. He doubled back to call the late President the great salvator, and then dived into Shakespeare again. In Shakespeare he knew where he was.

  “Why, man, he doth bestride the narrow world

  Like a Colossus, and we petty men

  Walk under his huge legs, and peep about

  To find ourselves dishonourable graves.”

  That was how Payne must have seen Lincoln and Seward.

  Payne had not seen them at all. It was Cap who had done the seeing. He didn’t understand what Doster was talking about. Rogeri and Catherine de Medici, Orloff and Catherine of Russia, Richard III, Tiberius, Philip II, Mary Queen of Scots, Louis XI, the Sand of Kotzebue, Corday, Murat, Count Ankarström, Gustavus III: who were all these people? Then there was Shakespeare again.

  “For, let the gods so speed me, as I love

  The name of honour more than I fear death…”

  That was true enough. But why did they have to have poetry? Why couldn’t they just hang him?

  That is what they meant to do.

  When Doster had finished, the court adjourned for lunch. There he was twitted on his oration. It had been a fine speech. It had also been useless. As one of the Military Commission said, over his boiled beef, “Payne seems to want to be hung, so I guess we may as well hang him.” There was no difficulty there.

  It was a better than average lunch. Afterwards the judges filed back to their table, and the arguments in defence of Mudd, Arnold, and O’Laughlin were heard. The room was as sultry as ever. Under the bench the Wellingtons of the Military Judges creaked, as they tried to stretch their legs, and the hot weather brought up the stench of well-polished morocco.

  On the 27th and the 28th of June, Assistant Judge Advocate Bingham got up to deliver the rebuttal. It was only four months since Lincoln had given his Second Inaugural Address, with its last sentence about “malice towards none; charity for all; and firmness in the right.” But the Inaugural had been delivered on a rainy day and few people had listened to those last sentences. They had been more concerned about their dinners. And it was unlikely that anyone in the courtroom remembered them now.

  Since he was a Congressman, the Honourable John A. Bingham was a strong winded and drafty speaker, but he made short work of Mrs. Surratt’s case. He reshaped the evidence with all the professional agility of a hatter blocking a hat. Since he was supposed to present an unbiased review of the case, for the benefit of the Military Commission, he did so. He said she was guilty. That Payne had gone to her house proved that.

  As for the legality of the court, Lincoln, in his proclamation of 24th September 1862, had taken care of that by establishing martial law. If he had done nothing else, the late President had at least constituted a competent authority.

  So Lincoln was mentioned at last. A martyr of vision, he had long ago established the conditions under which his assassins should be tried. It was an astute point, and justified everything. On the 29th, the Commission adjourned to deliberate its verdict. There was nothing more for the Defence to do.

  XLV

  Stanton was furious. He was the ruler of the country, not that treacherous booby, Johnson. Whatever happened, he did not mean to let loose his grip upon the reins of government. But he had made an error of judgment. Martial law had not yet been repealed, but the war was over. It was no longer possible entirely to disregard public opinion. He had made a mistake.

  It was because of the theatre manager, Ford. Ford had the gall to announce the reopening of his theatre. Stanton could not allow a crowd of sensation mongers in there, so he seized the theatre in the name of the Government. If forty days in Old Capitol Prison had not taught Ford a lesson, this would.

  But it was no longer possible to stifle the press. Someone called Orville Brown, a hired columnist, wrote Ford was helpless, without means of defending himself, in a free country. Of course it was a free country. What was that man Brown jabbering about?

  But there was also criticism of himself, and Stanton was sensitive to personal criticism. An Edward Bates said publicly that if Stanton could seize a theatre, he could go so far as to transfer estates from one man to another, or to dissolve the marriage ties.

  Whatever else he had done, Stanton had never touched private property, except when necessary. Bates’ statement was a canard. But this was no time to have questions raised in Congress. Johnson, he knew, would take any excuse to deprive him of office. So Stanton agreed to buy the theatre. He hated to expend the money, for Congress begrudged him every penny, so that it was already necessary to pad the budget with imaginary expenses, in order to pay his secret police, but there was nothing else he could do. At least the theatre would remain closed.

  And now, just when he had thought the Conspiracy Trial over and done with, Holt, who as Judge Advocate should never have permitted such a thing, had arrived to tell him that five out of nine members of the Commission, though agreeing on Mrs. Surratt’s guilt, had written out a clemency plea to be laid before President Johnson.

  It was too much. The woman had to hang. Where was justice, if females were allowed to do what they pleased, while their husbands and sons could be restrained only by fear of reprisal? Half the Southern spies had been women. That had not saved them. Why should it save her? Besides, her son was still at large. What right had she to clemency, when her son evaded arrest?

  The plea could not very well be torn up. In small matters Stanton practised an exact legality. But there were other ways of dealing with it.

  Johnson wanted no trouble. That was clear from his behaviour, for he seemed unwilling to go out of the White House until the trial was over with, and saw few visitors. The clemency plea would have to be presented to him, of course. But that did not mean that he had to see it.

  One had merely to slip the plea inside the end of the record, out of order, and begin the death warrant immediately after the last signature on the report of the proceedings of the Commission. Instead of continuing the death warrant from to
p to bottom on the obverse, begin it from bottom to top, so that, having to turn the papers over to see where to add his signature, Johnson would be even less likely to riffle through the endless pages of the report, and so find the plea. Holt had not thought of such a device. Stanton had. That was why he was still Secretary of War.

  Holt delivered the papers to the White House. When they came back, there was Johnson’s signature all right, on the reverse of the last page. As for the clemency plea, that could now be taken out and buried in the official files.

  The execution was scheduled for the 7th of July, between noon and two in the afternoon. As an added precaution, Stanton suggested that the Commission need not read the verdict to the accused until the afternoon of the 6th.

  There was a leak, somewhere, to the press. Damn the press. The Defence Counsel sat in their offices. No one expected the hanging of Mrs. Surratt, least of all themselves. But the sentence was certainly long delayed. At noon Aiken heard newsboys crying in the street, and opened the window. Both he and Clampitt leaned out. Reverdy Johnson, needless to say, was not with them. He was off somewhere denouncing President Johnson one moment, and intriguing, successfully it turned out, to be appointed by him Minister to England the next.

  “Execution of Mrs. Surratt,” shouted the newsboys. “Execution of Mrs. Surratt.”

  The two men did not bother to go down for a paper. There was too much to be done in too short a time. Yet they hardly knew how to proceed. The law is not adjusted to haste, and yet it was now five o’clock in the afternoon.

  They tried to reach the President, without success. Then they wired Reverdy Johnson. Johnson wired back telling them to get a writ of habeas corpus. His answer was delayed until midnight. None the less, they called on Judge Wylie at two in the morning. After telling them he would probably land in the Old Capitol before the day was out if he did so, he issued them a writ, which they left off at the United States Marshal’s office at four, with instructions that it be served on Hancock, the Governor of the Prison. At ten, President Johnson informed Hancock that since the writ of habeas corpus had been suspended by Lincoln, and had not been restored, he hereby especially condemned the writ. The execution was to proceed.

  Annie Surratt went to the White House. All she wanted was three days’ stay of execution, so that her mother might prepare for death. It was useless. The President would see no one.

  Even Wood tried to intervene. He went to the White House, and, being turned away from the portico, tried the rear entrance instead. He found Lafayette Baker waiting for him there, on Stanton’s orders. Of all people, said Stanton, Wood specifically was to be prevented from seeing the President. That took care of Wood.

  But then Stanton found that he had Father Walter to deal with.

  XLVI

  When the prisoners’ religious advisers asked for a stay of execution, so that the condemned might prepare for death, the Commission answered that the prisoners had had the whole period of the trial to prepare for death. And so they had. But death was not the same as being confronted with a death sentence.

  At noon on the 6th of July the Military Commission appeared at the prison. They made a spot of colour in that grey gloom. Methodically they moved from cell to cell. Stopping before the door of Mrs. Surratt’s, they informed her, drily, that she was guilty of the specification. She was to hang. She was not, however, guilty of harbouring Arnold and O’Laughlin.

  She burst into tears. Before the doctors calmed her with valerian, she had time to request that she be allowed to see Annie and her spiritual adviser, Father Walter. She had asked for him before, though without success, but surely now he would be allowed to come. She was a Catholic. They had no right to condemn her to die unshriven.

  The Commission made note of her request, and then moved on to the other cells.

  Herold was to die.

  Atzerodt was to die.

  Payne was to die.

  It was what Payne wanted, but even he was shaken by the haste with which he was to be shuffled off. He sent for Captain Rath. He wanted to attest to Mrs. Surratt’s innocence again. The woman must not be hanged. That was all he cared about any more.

  The Commission stopped before Spangler’s cell. He was virtually exonerated. Someone had testified to having seen two men conspiring in front of Ford’s Theatre, the one Booth, the other a man with a moustache who resembled Spangler. But Spangler had never worn a moustache. Not even the prosecution could prove that he had. So he was innocent. He would not hang. He had only to serve at hard labour for six years.

  Dr. Mudd received hard labour for life. So did Arnold and O’Laughlin. The Commission had shown its clemency in the case of Spangler. That was enough.

  It was not enough, however, for Stanton. Johnson had foolishly assigned the men to Albany Penitentiary, in New York State, where anyone might speak to them, and who was to know what they might say? New York State had been disloyal during the war. Its Governor had defied Stanton himself. Let them therefore be transferred to the Dry Tortugas.

  He forced Johnson to sign the transfer. Perhaps they would catch the yellow fever there, and so die. The Dry Tortugas were notorious. They were dry only in the sense that they were not under water, and Fort Jackson was the toughest, and least healthy of all the Federal prisons. A red brick fort, surrounded by a moat, it sat in the bright shark infested sea off Florida, unvisited and ominous. No one had ever escaped from there. No news came from there. If a prisoner tried to escape, the sharks would get him, even if the guards did not.

  Mudd quailed when he heard the news. As he told his jailers, he was a gentleman. He could not survive in such a place.

  Stanton heartily hoped he would not. Meanwhile there was this meddlesome fool, Walter, to be dealt with. Mrs. Surratt had sent for him. He was a priest. He would have to be bottled.

  Stanton bottled him. A Protestant himself, he was at least the equal to a Catholic priest.

  Mrs. Surratt did not know Father Walter, except by repute. She had first sent for him on the 23rd of April, before the trial had begun. He had not been allowed to attend her then. He did not intend to be prevented from seeing her now.

  He was an absurd looking person. He had a flat white face, an enormous nose, wore his hair long, and beamed at the world from behind chunky spectacles. He looked more like Hans Christian Andersen than a real person. But though people often found him tedious, no one had ever called him dishonest. He was not a political priest. He was not a famous orator. In fact, he could scarcely deliver a sermon at all. But he did believe in his vocation. He scarcely knew who Mrs. Surratt was, but since she had called for his help, he would not let her go to the scaffold unshriven. As soon as he had received her request, he asked the War Department for a pass, so he might visit her. A messenger brought him one. He told the messenger he believed her innocent, and prepared to go to the prison.

  He did not get there. An hour later Hardie, one of Stanton’s men, called on him to say that the pass was invalid unless countersigned by Stanton.

  Father Walter did not understand.

  Hardie explained. Walter must promise to say no more about Mrs. Surratt’s innocence. Only then might he receive the necessary pass.

  Walter was indignant. What right had the Government to deny Mrs. Surratt the rights of her religion? He told Hardie he would say what he believed to be true.

  Hardie looked embarrassed. He said that as yet there were no charges lodged against Walter at the War Department.

  Walter lost his temper. He said he would proclaim the woman’s innocence, and the War Department could hang him if it thought proper. Hardie turned to leave. There was an overweaning cringe about the man Walter did not care for, but he could not allow him to leave. Scruples or no, it was his duty to give the woman what comfort he could. He said he would agree to the conditions.

  Even so, he was not allowed into the prison until the morning of Mrs. Surratt’s execution. In the meantime, one of Stanton’s men was sent to Bishop Spaulding of Baltimore, to urge
that silence be enjoined upon Walter. Spaulding had to agree. He also believed Mrs. Surratt to be innocent, but like Walter, he did not see why, on that account, she should be denied extreme unction and the solace of confession. He wrote to Walter, as Stanton directed, but he refused to make his advice an order. He made the condition a suggestion and a request, nothing more.

  Stanton did not care about that. He had bottled Walter. Walter did not care either. It was his duty to save the woman’s soul, and that he had succeeded in doing. As for damning the Government, that could wait.

  XLVII

  The morning of the execution indicated a hot, windless, and suffocating day. It was scarcely dawn, the prisoners were not to be killed until one, and yet the crowd was already assembling outside the prison walls, and, for those privileged actually to gain admittance to the spectacle, inside. After all, in the history of the country so far this was to be a unique event.

  Payne was still trying to exonerate Mrs. Surratt. He had sent his statement to General Hartranft, the Provost Marshal in charge of the execution, who believed him, soothed him, but could do nothing.

  Herold was surrounded by his sisters. He had wept ever since his sentence had been read to him. Now his sisters wept. In their best dresses, black, and with long trailing skirts, they clustered around him, all seven of them. Rath, the executioner, found the sight an affecting one. They wept, but they did not seem to have much to say. What was there to say?

  Atzerodt and Payne had no visitors.

  Atzerodt’s conduct was disgusting. Since he did not believe in God, he had no one to appeal to, so prayer meant nothing to him. He could only kneel, as though at a block, and shriek, “Oh, oh, oh.” It was a demeaning sight.