The Judges of the Secret Court (28 page)

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.”

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.

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.

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.

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?