By William F.B. Vodrey
The Cleveland Civil War Roundtable
Copyright © 2003, 2007, All Rights Reserved
On July 7, 1865, Mary E. Surratt was hanged in the Arsenal grounds at Washington’s Old Penitentiary Building, having been convicted of conspiracy in the assassination of President Abraham Lincoln. Also executed were Lewis Payne, George A. Atzerodt and David Herold. Mrs. Surratt’s execution was perhaps the most extreme example of how the American rule of law was put to the severest test – and in some ways failed – in the cauldron of the Civil War.
President Lincoln took extraordinary measures to maintain order in the North during the war. He ordered the arrest of treasonous Maryland legislators, exiled the Copperhead leader Clement Vallandigham of Ohio, and widely suspended the writ of habeas corpus, even where Federal and state courts were open for business. Lincoln defended his actions, saying “Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?” The Lincoln administration claimed the right to take into military custody anyone who demonstrated “substantial and unmistakable complicity with those in armed rebellion,” and between 12,000 and 18,000 citizens were held without trial. Secretary of State William H. Seward relished his authority to arrest those whom he saw as enemies of the United States, telling a visitor, “If I tap that little bell, I can send you to a place where you will never hear the dogs bark.” In the case of Ex parte Merryman, Chief Justice Roger B. Taney ordered the release of such prisoners, but Lincoln ignored the order.
We now know that there were indeed some Confederate spies and plotters in the North, and many Copperhead sympathizers, but they never posed a threat remotely proportional to the Lincoln administration’s internal-security policies. With the benefit of hindsight, it’s clear that Lincoln badly erred, both legally and politically. The President did the best he could under very trying circumstances, but he overreached, and freedom suffered.
After Lincoln’s assassination, hysteria swept through the North. Coming so soon after Lee’s surrender at Appomattox, while Jefferson Davis and many top Confederate officials were still at large, John Wilkes Booth’s crime was thought by many to be a last murderous stab of the Richmond government-in-exile. Secretary of War Edwin M. Stanton exercised virtually dictatorial power in the hours after Lincoln’s shooting, setting up a command post in the front parlor of the Petersen House, opposite Ford’s Theatre, even as Lincoln fought for life in a small back room. Stanton issued a flurry of orders, offering a reward for the capture of the Lincoln conspirators, and seeing to it that a military tribunal was established to try the conspirators when they were arrested.
Whether Mary Surratt should have been prosecuted before a military tribunal was ably debated at the Roundtable’s meeting in January 2003; I have grave doubts that she should have been. However, the evidence as to her guilt was certainly less than overwhelming. It’s quite possible that she would have been acquitted, or at least pardoned by the new President, in a less grief-stricken and vengeful time.
Mary Surratt was, to some degree, a victim of one of those periods of constitutional crisis that often follow a great national calamity. She found herself in a time, such as we are now in, when public opinion is at its most inflamed, and when constitutional rights and the rule of law – bedrock principles of American democracy – are seen by some as costly luxuries in the face of a mortal threat to the nation. After Ft. Sumter, Lincoln took actions which severely curtailed constitutional freedoms in the North. After World War I and widespread anarchists’ bombing attacks, hundreds of suspected radicals and revolutionaries were arrested or deported in the Palmer Raids, sometimes just because they “looked” like enemies of the state. After Pearl Harbor, many thousands of Japanese-Americans were herded into internment camps just because of their ethnic background, even though no charges of sabotage or spying were brought against them. After World War II, McCarthyism and anticommunist paranoia ruined many lives.
Have we learned anything from these gross violations of the Constitution? I fear not. Since the monstrous terrorist attacks of September 11, 2001, the Federal government has laid claim to sweeping new powers. The government has gone so far as to designate two U.S. citizens, Jose Padilla and Yaser Hamdi, as “enemy combatants,” asserting the power to hold them indefinitely, without charges and without access to counsel. This is a power found nowhere in the Constitution, breathtaking in its implications and, in my view, repugnant to American ideals of freedom and justice. However, the U.S. Court of Appeals for the Fourth Circuit (based in Richmond, ironically enough) upheld the government’s claim on January 8, the very day of our debate, and now the case is sure to go before the Supreme Court. No one wants terrorists to strike again, but we must be mindful of the Constitution that sets our nation apart from all others. As we fight the very real threat of terrorism, we should remember Benjamin Franklin’s warning: “They that give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
Our rights are never more endangered than during a national crisis. Now more than ever, we must do all what we can to preserve, protect and defend the Constitution, that structure of ordered liberty that has seen us through so many crises: a civil war, a great depression, two world wars, a cold war. This nation will endure and prevail, if we each decide that it shall be so, and if we are true to the principles on which it was founded.
That’s the least we can do for ourselves, for our country, and for the memory of Mary Surratt – whether she was guilty or innocent.