The Judicial Murder of Mary E. Surratt

by David Miller DeWitt

At this point—when the Commission had sentenced to death three men and had just declined to sentence to death two more whom it had pronounced guilty of the same crime—at this point it was, that the sentence of Mary E. Surratt came up for determination.

Now, the crimes of which Arnold had been found guilty were both in law and in fact the same of which she had been found guilty. Even the particular allegation in the Specification is the same in both cases, except some immaterial variance in the verbiage and in the names of co-conspirators.

Of course, it will be presumed that the Commission had found the woman guilty without being pressed. But, equally of course, it will not be doubted that, in determining the sentence which should follow the verdict, the question of exercising the same mercy as the Commission had just exercised in the case of a man convicted of the same crime, must have arisen in the case of the woman. And, the question once having arisen, the first impulse of the majority, if inclined still to mercy, must have been to exert their own unquestioned function, and, as in the other cases, mitigate the sentence themselves. They would have, originally, no motive to thrust upon the President, who was to know comparatively nothing of the evidence, the responsibility of doing that thing, which they themselves who had heard the whole case thought ought to be done, and which in a parallel case they had just done. Even if they believed the woman’s crime had a deeper tinge of iniquity than either Arnold’s or Mudd’s (of which the respective verdicts, however, give no hint), but that nevertheless her age and sex ought to save her from the scaffold, they need not have turned to the President for mercy on such a ground. The woman clothed upon by her age and sex had sat for weeks bodily before them. This very mitigation was what a majority of the Court had power to administer. The reason of the mitigation was a matter of no moment. The Court could commute for “age and sex” as well as the President, and, for that matter, could state the reason for the milder penalty in the sentence itself.

Therefore, it may be taken for granted that here the Judge-Advocates again found that two-thirds of the Court would not concur in the infliction of the death penalty. Nay, that even a majority could not be obtained. Five out of the nine officers announced themselves in favor of imprisonment for life.

Here, indeed, was a coil! The prosecutors were at their wits’ ends. And lo! when they passed on to consider the last case, that of Dr. Mudd, the same incomprehensible reluctance to shed more blood did but add to their discomfiture. The verdict indeed had been easily obtainable, but the coveted death-sentence would not follow. The whole day had been spent in these debatings. The expedient of adjourning over to the next day, perhaps, was now tried; and the dismayed Judge-Advocates, with but three out of the eight heads they had made so sure of, and their “female fiend” likely to slip the halter, hurry away to consult with their Chief.

Edwin M. Stanton, as he had presided over the whole preparatory process, so too had kept watch over the daily progress of the trial from afar. Every evening his zealous aide-de-camps made report for the day and took their orders for the morrow.

After the death of Booth and the escape of John H. Surratt, the condemnation to death of the mother of the fugitive had become his one supreme aim.

The condemnation of the other prisoners was to him either a matter of no doubt or was a minor affair. Three heads of the band of assassins stood out in bloody prominence—Booth, John H. Surratt and Payne. The first had been snatched from his clutches by a death too easy. Payne, with hand-cuffs and fetters and chains and ball and hood, he might be confident, could not evade his proper doom. Surratt, by the aid of some inscrutable, malignant power, had contrived to baffle all the efforts of his widespread and mighty machinery of military and detective police. But he had the mother, the friend of Booth and the entertainer of Payne; and she, the relentless Secretary with his accordant lackeys had sworn, should not fail to suffer in default of the self-surrender of her son. She, moreover, was to be made an example and a warning to the women of the South, who, in the judgment of these three patterns of heroism, had “unsexed” themselves by cherishing and cheering fathers, brothers, husbands and sons on the tented field.

In the conclave which Stanton and his two co-adjutors held, either during the recesses of the prolonged session of the first day, or most likely during the night of the adjournment, it was resolved, that if the manly reluctance of five soldiers to doom a woman to the scaffold could be overcome in no other way, to employ as a last resort the “suggestion,” that the Court formally condemn her to death, and then, as a compromise, the soft-hearted five petition the President to commute—the three plotters trusting to the chances of the future, with the petition in their custody and the President under their dominion, to render ineffectual this forced concession to what they scorned as a weak sentimentalism. This suggestion of what was in truth a most extraordinary device—a petition to the President to do what the Court could do itself—could not have emanated from the merciful majority of the Court, which subsequently did sign the fatal document. They, at least, were sincere, and, if let alone, would have proceeded immediately to embody their own clemency in a formal sentence, as they had done with O’Laughlin and Arnold, and as they were about to do with Mudd. Had there been but one, or two, or three dissentients, so that they were powerless in the face of two-thirds of the Commission; or even had there been four—a number sufficient to block a death-sentence but not sufficient to dictate the action of the Court, then, indeed, recourse to the clemency of the Executive might have been a natural proceeding. But a clear majority had no need to look elsewhere for a power of commutation which they themselves possessed in full vigor, and which, in all probability, after the first three death-penalties, they had determined to apply in every one of the other cases. Neither could the suggestion have been made by one of the minority, because none of them signed the petition to the last. The four must have been steadfast and uncompromising for blood. The whole scheme proceeded from a quarter outside the Court—a quarter which, on the one hand, was possessed by an overmastering revengeful passion, such as was required to point the five officers to a seeming source of mercy to which they might appeal and thus avoid the exercise of their own prerogative in antagonism to their four brethren, and, on the other hand, harbored some secret knowledge or malign intent that the petition would or should be, in fact, an empty form; from a quarter, in short, where the desire for the condemnation to death of Mrs. Surratt was all-controlling and where the condition of the President was well known. They, who suggested the death-sentence and the petition as a substitute for the milder penalty, were surely all on the side of death, and hoped, if they did not believe, that the prayer of the petition would be of no avail; else they would not have adopted such a circuitous method to do what the five officers could immediately have accomplished themselves. In one word, the contrivers of the device of petition were not those who desired to save the bare life of the convicted she-conspirator, but were those who would be satisfied with nothing less than her death on the scaffold. The suggestion was wholly sinister and malevolent. On the other hand, the majority of the Court did really desire that her punishment should not exceed that of Arnold, O’Laughlin and Mudd, and they certainly would never have had recourse to a petition to the President, had they not been cheated into believing that that method of proceeding was likely to effectuate what they had full power to do. Never would these five soldiers, or any two of them, have given their voices for the death of this woman, had they dreamed for a moment that their signing of the petition was, and was meant to be, but a farce. They would not have played such a ghastly trick under the shadow of the gibbet.

Accordingly, when the Commission reassembled, either after recess or adjournment, the reinvigorated counsellors immediately unfolded their plan. We can almost hear their voices, in that upper room of the Old Penitentiary, as they alternately urge on the Court. Holt, making a merit of yielding in the cases of Spangler, of O’Laughlin, of Arnold and of Mudd, denounces the universal disloyalty of the women of the South, and pleads the necessity of an example.