The Branch and the Scaffold

by The Branch

  Cameras were banned. However, the march of invention had replaced the cumbersome equipment employed by professional photographers with handheld Kodaks available to all, and one such item, smuggled in under a coat, captured the image of the young desperado whose two years on the scout had mobilized more officers than had skirmished with Ned Christie for seven, hatless, with arms and legs in restraints and one cheek still healing from its encounter with the butt of Heck Bruner’s shotgun, the noose snug around his neck. The plate was lost, but not before an artist named Gannaway copied it in charcoal. Lithographic prints sold briskly in Fort Smith for weeks following the event.

  At Cherokee Bill’s request, the Reverend Father Pius of the Catholic church prayed for the soul of Crawford Goldsby. The marshal then asked if Bill had anything to say.

  “I came here to die, not make a speech.”

  He said good-bye to an acquaintance in the crowd. Then he turned to Lawson. “The quicker it is over the better.”

  Lawson fitted a black hood over the prisoner’s head. Eoff, who had not hesitated to volunteer for the duty, grasped the lever worn smooth as polished ivory by the hand of George Maledon and dropped Cherokee Bill into history.

  Four months later, on the same day in July, the five members of the Rufus Buck Gang followed him. Small-time offenders who had all spent time in the jail, Buck, a Ute Indian, Creeks Sam Sampson, Lewis Davis, and Maomi July, and Lucky Davis, a Creek Negro, had scourged through the Cherokee Nation on a gin-driven frenzy of rape, robbery, and murder, and been brought to ground in a gun battle with one hundred deputies, Lighthorse policemen, and outraged citizens in the summer of the previous year. The Supreme Court had rejected their petition for appeal with a shudder, and with one jerk of the lever, one of the more depraved bands in the bloody chronicle of the Oklahoma Territory went to oblivion. Buck and Lucky Davis outlasted the others by several minutes, convulsing in the throes of slow strangulation. Parker turned from his window and missed Maledon.

  The attendance on that occasion equaled Cherokee Bill’s. By spectral telegraph, it was understood that this would be the last mass execution by the judge’s order, and likely the last in the long tradition that had begun when Peter the Great took up the axe to aid in the extermination of the Streltsys; for the troubled century was drawing to a close, and Parker’s ailments could no longer be concealed. His absence was noted at the Methodist service on Sundays; he was said to lie abed, conserving his energy for the Monday session. He had been seen frequently to close his eyes during testimony against the Bucks, and the language of sentencing, as wrathful as when he had consigned John Childers to his death three times over in 1875, had been read in a dreary monotone from his notes without his once looking at the wretches who stood before him. The engine of justice in Fort Smith was winding down. Old Thunder’s lightning had lost its blinding white flash. Those doddering citizens who in their cynical youth had pressed in around the phaeton carrying the callow jurist whom Washington had sent to deliver them from ineptitude and corruption wandered the streets wearing figurative bands of mourning on their sleeves. The coming century promised nothing but an empty hole cut out in the shape of Judge Parker.

  George Pearce, who with his brother, John, had killed a man in the Cherokee to gain possession of a mare and a colt, and who had unwittingly spoiled Cherokee Bill’s shot at Campbell Eoff in the federal cage, stretched the hemp beside his brother on the last day in April, and this, too, drew a mass audience, due in part to George Pearce’s connection with Cherokee Bill’s desperate gamble.

  James Casharago was born on a farm in Arkansas of an American mother and an Italian father, who died from a fall when Casharago was a boy; his stepfather despaired of teaching him discipline, declaring that the love of hard work that existed in the Mediterranean races had in Jimmy’s case been extinguished by the American side. The boy was a petty thief who grew up to become an experienced forger of documents turned easily into cash. Unmasked and driven to flight, he was captured and jailed in Faulkner County, but escaped and went to high ground in the northern part of the state. As George Wilson, he worked as a stock clerk in a country store, where he robbed his employer of a pistol and cash. In his twentieth year, sheriff’s deputies arrested him for breaking into a store in Obion County, Tennessee, for which he served three years in the state penitentiary at Nashville.

  Upon his release he returned home, borrowed a mule from his stepsister, and sold it to buy a wagon, which he mortgaged to obtain a team and merchandise and turned peddler; it was remarked upon later that had he set his sights higher, his talent for swindling might have earned him the acclaim of a Vanderbilt or a Morgan and a brownstone mansion on Fifth Avenue in New York City instead of a cell in Fort Smith. He was arrested again, but broke out of jail and fled to the shelter of an uncle, in tears and declaring his intention to lead an honest life thenceforth. The uncle provided him with a letter to Zachariah Thatch, a friend in Washington County, introducing his nephew and asking Thatch to give him work on the farm.

  Casharago was twenty-five, a personable young man in full possession of his health. Thatch, aged and infirm, enjoyed his company, and in April 1895 asked him to travel with him on a horse-trading expedition into the Creek Nation. Casharago loaded a wagon with camping gear, hitched up a team, and tethered the trade horses, including a splendid stallion, to the tailgate. They started out, and on May 13 reached Buck Creek near Keokuk Falls. There Casharago split open Thatch’s head with an axe, weighted down the body with rocks, and threw it in the creek.

  Nearly two weeks passed before the bloated corpse broke loose and floated downstream toward discovery. A search on foot ended at an old campsite where a fire had been built atop a bloodstained patch of clay. Thatch and Casharago had been seen together, and deputies matched the description to a man found driving a wagon in Sapulpa, who gave his name as Wilson and who when taken to see the body said he’d never known the man. Asked about bloodstains in the bed of his wagon, he said he’d killed a prairie chicken for supper some days before. He was taken to Fort Smith regardless, and there his story disintegrated when acquaintances identified him as James Casharago, the murdered man’s hired hand. Simultaneously a neighbor of Thatch’s examined a fine stallion that Wilson had sold to a breeder of racing horses in Sapulpa and declared it the property of Zachariah Thatch.

  “James Casharago,” Parker said, “even nature revolted against your crime. The ground cracked open and, drinking up the blood, held it in a fast embrace until the time that it should appear against you. The water, too, threw up its dead and bore upon its once chaste bosom the foul evidence of your crime.”

  The apparatus of justice in Fort Smith was now firmly connected to the sprawl of gears, pulleys, and plunging piston rods that stretched across civilization and ended in Washington. Automatically the Casharago case entered it, and in course of time the justices of the U.S. Supreme Court passed around the particulars, forcing Parker to order a stay of execution pending a ruling. It was at this time that he began to stay home from church, and as the days of the week lost their light to recess cases that traditionally he had tried late into the night. His face was pallid almost to the point of transparency; he appeared to be fading away like an old photograph.

  The justices upheld his decision unanimously. The Fort Smith papers crowed that the gray lion had shown his teeth and the nine old men had recoiled. Parker was at home and could not be reached for comment.

  On July 30, 1896, an officer of the Fort Smith jail tugged a black hood over James Casharago’s head and stepped away from the trap. For twenty-one years, Judge Parker had stood at the window in his chambers to witness the execution of sentence; he was as much a fixture on the appointed day as the dread solid scaffold. When a second officer pulled the lever, many in the packed crowd turned their heads to look at the window on the third floor of the court house. It was empty.

  Isaac Charles Parker had hanged his last man.

  “Oyez! Oyez! The Honorable District and Circuit Cour
ts of the United States for the Western District of Arkansas, having criminal jurisdiction of the Indian Territory, are now adjourned, forever. God bless the United States and the honorable courts.”

  J. G. Hammersly stood now with the support of a wooden cane, and the golden bell of his tenor had long since turned brazen and harsh, but it didn’t crack even on this occasion. He glanced from habit toward the man behind the bench, but it was not Parker who slapped the gavel; a nobody from South Dakota had been appointed to sit in his place. Parker lay on his deathbed.

  Parker lay on his deathbed, propped up with pillows, and responded animatedly to questions put to him by Ada Patterson of the St. Louis Republic. It was warm for September, and Mary stood beside the bed fanning him slowly with a palm leaf; Miss Patterson reflected, not for publication, that he looked like an aging sultan in his figured dressing gown. The cap of chalk-white hair—luxuriantly abundant despite his travails, as if it fed directly upon that immense legal brain, irrigated by the waters of Jordan—fit him as closely as a turban. These fanciful thoughts she kept from the record, which was demonstrably the final testament of a great man, greatly flawed. She leaned over in her chair to make shorthand notes in the light of an electric lamp on the nightstand; the curtains were drawn, creating a twilight condition at odds with the squeak and jabber of busy Fort Smith outside the window, a Fort Smith he had done more than anyone to create in his own image.

  “When President Grant appointed me, I didn’t expect to stay but a year or two,” Parker said.

  “You said that, Isaac.”

  “It bears repetition.”

  “It was the greatest mistake of your life. It has broken your heart and your health.” Mrs. Parker turned to the journalist. “He’s only fifty-eight.”

  Miss Patterson made note of the figure, ignoring the faint scent of strong spirits that drifted from the judge’s wife.

  “It wasn’t a mistake.”

  “My readers want to know how it feels to have hanged so many men.”

  “I’ve never hanged a man. It is the law that has done it.”

  Followed one of those monologues Miss Patterson had been warned about, as Parker summed up his case before the jury of public opinion. “Do equal and exact justice,” he finished. “Permit no innocent man to be punished; let no guilty man escape. No politics shall enter here. I have this motto in my court.”

  “But you have no court.”

  “No.” His head leaned back, his eyes closed. Blue veins showed in the paper-thin lids. “But the court has had me.”

  “Please don’t print that last part,” said Mary as she saw the woman out through the parlor. “It will start the whole thing all over again.”

  “What do you think of capital punishment, Mrs. Parker?”

  “I’ve never believed in it since I read Eugene Aram. It was the first novel I ever read.”

  The journalist looked for the book to read on the train, but there was not a copy to be had in town. In St. Louis she checked it out of the library, read the first chapter, and skimmed the rest, stopping here and there to read a passage. She tossed the book aside. It was a silly romance about a man on trial for his life and presented only the case for the defense.

  Parker lay on his deathbed, marking time by the gong of the hall clock and the ebb and flow of traffic in the street and the passage of the filtered sunlight as it crossed the papered ceiling. The counterpane felt heavy, making breathing difficult, but he hadn’t the strength to adjust it. It was hard to concentrate on anything for more than a few seconds; for him, who had listened to testimony for hours on end and noted when a small detail had changed before an attorney did and raised an objection. Charlie visited, in the middle of a busy legal season in St. Louis, and that was a certain sign. The Reverend Father Smyth, pastor of Mary’s church, came; at Parker’s request he kissed and put on his vestments, baptized Parker into the Catholic faith, and performed the last rites. His convert thanked him and closed his eyes. The sheet covering his chest rose and fell shallowly.

  In the Fort Smith jail, the men on Murderers’ Row smoked and waited. They had only the sounds of the building for distraction; the echo of a turnkey’s footsteps on the iron-oak floor, the sigh of the foundation settling, the current of air passing in and out through the ventilation ducts like the tenuous breathing of a dying man. The scaffold stood idle once again; no squee-thump! to stand one’s skin on end and make him drop ash.

  Parker lay on his deathbed. He found he could center his thoughts on numbers, cold and intractible in the face of relentless arguing on the part of opposing counsels: 13,490 cases tried, not counting 4,000 petty offenses settled in preliminary. Of 9,454 convicted and pled guilty, 344 were capital in nature. One hundred sixty-five of these had ended in conviction, with 160 sentenced to hang. Upon the dissolution of the court—Parker’s court, as securely his own as the British Empire belonged to Queen Victoria—seventy-eight jurisdictions had sprung up to hear complaints civil and criminal; one fewer than the number of men he had caused to suspend from the scaffold. Two others had swindled the system through natural death behind bars, five had died in escape attempts, dispatched by George Maledon’s brace of pistols. The rest had been spirited away through appeal, commutation, and presidential pardon. He did not count those prisoners who had managed to escape or forfeited bond; one must make allowances for the natural will to survive. The respect and love of those wards of the United States government he had pledged himself to protect from marauders from inside and outside the Nations lay without the realm of cold mathematics, and so exceeded the grasp of the remarkable brain whose whorls had worn smooth, like the grooves on the tips of the fingers of a postal clerk through whose hands had passed many thousands of letters and circulars and memoranda from the postmasters general in Washington.

  The progress of his crusade was measurable in terms of time. The James Gang had confounded the Pinkerton National Detective Agency and peace officers in five states for nearly twenty years. Ned Christie had hung on for seven, the Daltons for four. Cherokee Bill had managed two, and through the railroads and the telegraph and the iron determination of the pioneers, Rufus Buck and his assembly of perverts had faced justice after just two weeks. Decades had been distilled to days. The wheels now ground as small as at the beginning, but swiftly rather than slow. The time was near when mere hours separated the miscreant from the inevitable. He had done his part, minuscule as it was. A footnote was preferable to blank space.

  Was it?

  Of course it was. A man who failed to inspire love and hate in equal measure might as well have run for public office, or taken up arms against order and the rule of law.

  Isaac, we’ve made a terrible mistake.

  No, Mary. We are faced with a great task.

  You will listen to the sentence of the law . . .

  George J. Crump, colonel of the Army, retired, United States marshal for the Eighth District Court, which no longer existed, sat smoking a cigar in his office in the Fort Smith courthouse and considered the task of assembling boxes in which to place his personal effects, that the man who succeeded him would not have them removed to the attic, there to gather dust among the bloodied axes, arsenal of firearms, and pair upon pair of handsome boots, each of which represented a man struck down before his time and family and friends in mourning, that a killer would not go unshod. He thought also of that jackanapes J. Warren Reed, doomed to dull his blade with no Parker to grind it against, and the junior senators in Congress deprived of their devil; for surely there was nothing so ludicrous as St. George without his dragon. Crump had disliked the old bastard, but he hadn’t a friend as constant.

  He thought of calling his secretary to crank up the disturbing new telephone instrument and inquire after the health of Judge Parker. Then he became aware of an unearthly groundswell of noise from the direction of the jail.

  He rose, threw up the window sash, and felt the whooping from Murderers’ Row like a hot wind upon his face. He’d been told the same thing
had happened the first time the Supreme Court reversed Parker. If he lived to be a hundred in the service of the United States Department of Justice, he would never learn how the lowliest convict in the system became aware of momentous events ahead of the official channels.

  A SUMMATION FOR THE DEFENSE

  In writing The Branch and the Scaffold, I’ve departed from the example set by Sir Walter Scott and told a historical tale without any fictional characters. Coupling invented people with real events serves to heighten drama, which is unnecessary in the case of Judge Parker and his remarkable court. Every figure in this book is real.

  It’s the privilege of the historical novelist to make certain adjustments in the interests of animation and clarity: I’ve introduced manufactured dialogue into episodes the record reports only in narrative, altered the order of some events, installed bits of business where details are spotty, and in the case of Deputy U.S. Marshal George Lawson and Will Lawson, a guard in the Fort Smith jail, consolidated two minor players into one. Such measures were seldom called for; the story provides so much that’s required to entertain and instruct that it’s a mystery so few writers have undertaken to retell it.

  Beginning in 1875 and until his death in 1896, Isaac Charles Parker tried civil and criminal cases in the Western District of Arkansas and the Indian Nations—an area larger than today’s United Kingdom—every day except Sunday, Christmas Day, and one brief period of rest ordered by his physician, made even shorter by Cherokee Bill’s attempt to escape from the federal jail. During his first fourteen years on the bench, Parker’s sentences were not subject to appeal except directly to the president of the United States. He hanged seventy-nine men, and an examination of the record suggests far beyond a reasonable doubt that all were guilty of murder or rape or both. Sixty-five deputy U.S. marshals were slain in the line of duty during his tenure. His charge to the jury at the end of Cherokee Bill’s trial for the murder of Lawrence Keating (too long and specific to include in this book) is still cited in legal references as a model of understanding and explanation of the law as it applies to murder in the first degree.