intoxicated at the time.” Richard Sweeney, who had run into the tavern
owner on the Marlboro road, remembered that “he was considerably under
the influence of liquor and he drank on the road.” James Lusby had
ridden back to Surrattsville with him, and said he was “very drunk on
that occasion.” Mrs. Offutt thought that her brother-in-law was “very
much in liquor, more so than I have ever seen him in my life.” So much
so, in fact, that he had become deathly ill shortly after returning
from Marlboro and had to lie down. But Lloyd was evidently a man of
great recuperative powers, because she had seen him heading back to the
barroom a few minutes later.
As the trial dragged on, it was obvious that the Judge Advocate was
relying heavily on Mrs. Surratt’s refusal (as he called it) to
recognize Payne in the vestibule of her house on the night of April
17th. But Zad Jenkins swore that her “eyesight is defective,” while her
daughter, Anna, testified that “my mother’s eyesight is very bad, and
she has often failed to recognize her friends.” It was only her vanity,
Anna said, that kept her from wearing glasses. Honora Fitzpatrick, who
shared Mrs. Surratt’s room, said that her landlady had “complained
that she could not read or sew at night, on account of her sight. I
have known of her passing her friend, Mrs. Kirby, on the same side of
the street, and not seeing her at all.” Honora had also been unable to
identify Payne that night until “the skull-cap was taken off his head.”
Mrs. Eliza Holahan, another boarder, knew that “Mrs. Surratt’s eyesight
was defective.” Anna Ward, an old friend, stated that the defendant had
frequently “failed to recognize me on the street”
The rest of the case for Mrs. Surratt consisted of evidence of her
good character and loyalty to the Union. Anna Ward knew her as “a
perfect lady and a Christian,” while four Catholic priests attested
to her religious devotion. Her brother recalled that she frequently
gave “milk, tea and such refreshments as she had in her house to Union
troops when they were passing.” Rachel Semus, whom, Pitman noted, was
“colored”, had been the Surratt cook for six years. She remembered that
her employer had “fed Union soldiers at her house, sometimes a good
many of them; and I know that she always tried to do the best for them
that she could, because I always cooked for them.” Rev. E. F. Wiget,
the president of Gonzaga College, had “always heard everyone speak
very highly of her character.” John and Bill Hoxton, Surrattsville
neighbors, had “never heard her utter a disloyal word.”
On June 13th, the defense suddenly recalled Mrs. Offutt. As she took
the stand, Aiken told the Commission “that at the time Mrs. Offutt
gave her testimony before, she came here very unwell. If I have been
correctly informed, she had been suffering severely from sickness, and
had taken considerable laudanum. Her mind was considerably confused at
the time, and she now wished to correct her testimony in an important
particular.” Colonel Bingham was on his feet in a flash.
Q. Is it something you swore to here in court?
A. Of course, I took the oath when I appeared here.
Q. Do you want to correct anything you have sworn to here in court?
A. Yes, sir, I should like to do so.
There wasn’t much Bingham could do with an obviously determined lady,
and he sat down as abruptly as he had gotten up.
Mrs. Offutt reminded Hunter and his colleagues that when she had
testified on May 17th, the Judge Advocate had asked her whether Mrs.
Surratt had handed her a package at Lloyd’s tavern on April 14th, and
her answer had been “No.” Now, she remembered that “she did hand me a
package and said she requested to leave it there.” Later on, she had
seen it “lying on the sofa in the parlor.” After Mrs. Surratt had left
for Washington, the witness had noticed that Lloyd went into the parlor
and “had a package in his hand.” She thought that “after the package
was handed to me, it might have been taken by Mrs. Surratt and handed
to Lloyd, but I did not see her give it to him.”
As Clampitt reminded the Commission, “Mr. Lloyd, under oath, swore that
he received a package from Mrs. Surratt. We wish to show that a package
was received of Mrs. Surratt by Mrs. Offutt. We wish to show in this
connection that it was the same package that Mr. Lloyd swore to. If we
can show that this was the identical package that Mr. Lloyd swore to
receiving, we can show that his testimony is not worth the snap of a
finger.” But Mrs. Offutt did not know what was in the package; all she
remembered was that Mrs. Surratt had given it to her around 5:30 that
afternoon and she had “laid it down” on the parlor sofa. She had no
idea of what had happened to it after that, except that she had seen a
package in her brother-in-law’s hands when he entered the house a few
minutes later.
When the defense rested on June 13th, the government trotted out John
Ryan, Frank Smith, James P. Young and P. T. Ransford, all of whom
swore that Lou Weichmann, its witness-in-chief, was a very trustworthy
fellow indeed. But only one--Young--had known him for any length of
time. John T. Holohan, who had occupied a second-floor room at Mrs.
Surratt’s in early 1865, swore that he had never heard anyone mention
his landlady’s bad eyesight. With the testimony of six Prince George’s
County neighbors that Zad Jenkins was, among other things, “one of the
most disloyal men in the country,” the prosecution had shot its wad as
far as Mrs. Surratt was concerned.
The closing arguments began on June 16th and continued for twelve
days. While they droned on, John Clampitt tried to introduce the
joint affidavit of Louis Carland and John P. Brophy, two friends of
Weichmann, who swore that he had told them that he had perjured himself
during the trial. He, and not Mrs. Surratt, had suggested that he try
to borrow Booth’s buggy for the April 11th trip to Surrattsville. He
had also informed Carland and Brophy that he had told a fellow clerk in
the War Department all about the kidnap plot as early as February, and
that Stanton had forced him to testify against Mrs. Surratt despite the
fact that Lou thought she was innocent. But he had played along with
the Secretary of War because “I didn’t want to hang.”
But Holt wasn’t going to let a piece of notarized paper spring Mary
Eugenia. He rejected it as hearsay and, when Clampitt offered to
produce Brophy in person, the Judge Advocate thumbed down his request
on the ground that it was too late to call another witness. But on
June 27th, eleven days after the prosecution had closed its case,
Holt called one John Cantlin to testify to an anonymous advertisement
printed in the _Selma_ (Alabama) _Dispatch_ on December 1, 1864,
offering to kill Lincoln, Seward, and Johnson, for one million
dollars. Brophy felt so strongly about the rejection of his affidavit
that he tried to see Andrew Johnson about it but the President was
incommunicado as far as the trial was concerned.
In his closing argument, Reverdy Johnson pointed out that the Military
Commission lacked the power to try Mrs. Surratt. “As counsel for one of
the parties,” he told its members, “I should esteem myself dishonored
if I attempted to rescue my client from a proper trial for the offense
charged against her, by denying the jurisdiction of the Commission,
upon grounds that I did not conscientiously believe to be sound. And,
in what I have done, I have not more had in view the defense of Mrs.
Surratt, than of the Constitution and the laws. In my view, in this
respect, her cause is the cause of every citizen. And let it not be
supposed that I am seeking to secure impunity to any one who may have
been guilty of the horrid crimes of the night of the 14th of April.
Over these, the civil courts of this District have ample jurisdiction,
and will faithfully exercise it if the cases are remitted to them, and
guilt is legally established, and will surely award the punishment
known to the laws.”
Johnson left it to his youthful associates to discuss the substantive
case against Mrs. Surratt and young Aiken did his best. What had “two
months of patient and unwearying investigation, and the most thorough
search for evidence that was probably ever made” developed insofar
as his client was concerned? Only that she knew Booth (and who in
Washington did not?), that she had taken a message to Lloyd (so had
a hundred others), and that she had failed to recognize Payne (bad
eyes in a dim light). The chief witnesses against her--the unreliable
Weichmann and the drunken Lloyd--were both trying to save their own
skins. He ended in a blaze of rhetoric, asking the Commission’s members
to disregard “suspicion fastened and fed upon the facts of acquaintance
and mere fortuitous intercourse with that man in whose name so many
miseries gather, the assassinator of the President.”
Colonel Bingham, who summed up for the prosecution, ended his
two-day presentation with the observation that Mrs. Surratt was “as
surely in the conspiracy to murder the President as was John Wilkes
Booth himself.” After all, wasn’t her house the headquarters of the
conspirators? And didn’t she deliver a fieldglass to Lloyd and instruct
him to have the carbines ready? Would an innocent woman fail to
recognize a man who had been her boarder? If she wasn’t involved in the
plot against the President, why did Booth always ask for her when he
visited H Street? As far as the Special Judge Advocate was concerned,
the questions answered themselves.
When he sat down late in the afternoon of June 28th, the court was
cleared for the last time and the Commission began its deliberation.
It took only minutes for it to decide that Payne, Herold and Atzerodt
should hang. Dr. Mudd, Mike O’Laughlin and Sam Arnold were sentenced
to “hard labor for life,” while Ed Spangler drew six years. But the
Commission couldn’t make up its collective mind about Mrs. Surratt.
On its first ballot, only four of its members voted to execute her.
The other five could not be convinced that the evidence had disclosed
that she was guilty of anything more than running a boardinghouse that
catered to a mighty strange lot of roomers.
But two days of Washington’s heat did what all of the Judge Advocate’s
arguments had failed to accomplish. At noon, on June 30th, the five
recalcitrants voted that “the said Mary E. Surratt be hanged by the
neck until she be dead, at such time and place as the President of the
United States shall direct.” However, they insisted on appending a
petition for commutation of the “sentence of death ... to imprisonment
for life” to the record of the case which Holt was to submit to
Johnson. On July 5th, the President formally approved the Commission’s
sentences and ordered that Herold, Atzerodt, Payne and Mrs. Surratt be
executed “on the seventh day of July, 1865, between the hours of ten
o’clock a.m. and two o’clock p.m. of that day.” Whether he ever saw the
recommendation for mercy or not, no one could say.
But Clampitt and Aiken weren’t ready to call it quits yet. At two
o’clock on the morning of July 7th, the two young men persuaded Andrew
Wylie, one of the Justices of the Supreme Court of the District
of Columbia, to issue a writ of habeas corpus on the ground that
prosecution by the Military Commission had deprived Mary Eugenia of her
right to trial by jury. Major General W. S. Hancock, the commander of
the Middle Military District, was ordered “to produce ... the body of
your said petitioner” at ten o’clock the next morning. But Stanton had
an ace up his sleeve. When Hancock, accompanied by Attorney General
James Speed, walked into Judge Wylie’s courtroom, almost two hours
after the time specified in the writ, he did not have Mrs. Surratt
with him. What he did have was a message from the President, declaring
that “I do hereby especially suspend this writ.” Judge Wylie had no
choice--he yielded to the suspension.
The scaffold had been built in the courtyard of the Old Penitentiary
Building. Just as General Hancock was presenting Johnson’s suspension
order to Judge Wylie, Captain Christian Rath, the officer in charge of
the execution, approved the drop. Four graves had been dug to the left
of the gallows near the prison wall. At the side of each one was a
pine box containing glass bottles in which the name of each defendant
had been placed. Shortly before two o’clock, Mrs. Surratt, despite
Payne’s last minute statement that she “was innocent of the murder of
the President,” was led from her cell. Accompanied by two priests, she
climbed the fifteen steps to the gallow’s platform where she sat in an
armchair while an officer read the sentences aloud. Five minutes later,
with her hands tied behind her back and her face covered by a white
hood, she dropped into eternity.
On July 15th, the four surviving defendants, who had begun serving
their terms in the Albany Penitentiary, were re-sentenced to “hard
labor in the military prison at Dry Tortugas, Florida.” In 1867,
O’Laughlin died of yellow fever, but Mudd was pardoned in 1868, and
Spangler and Arnold one year later. In 1867, John Harrison Surratt,
whom spectator Walt Whitman described as “very young ... with sharp
eyes,” was tried by a Washington civil court for his part in the
conspiracy. The jury voted eight-to-four for acquittal and the
government decided to call it a day and dropped the charges against
him. By this time, everyone knew that Stanton had suppressed Booth’s
captured diary which contained an entry for April 14th, clearly
indicating that it had not been until that very day that the actor had
decided to kill rather than kidnap the President. Mary Eugenia had
never had even a fighting chance.
2
_Atlanta’s Northern Jew_
The State of Georgia
_versus_
Leo M. Frank
The southern Negro stands halfway between slavery and freedom. On
one hand, he is his own man, able to own property, to be compensated
for his labor and even, in some areas, to vote. On the other, he
must endure many forms of segregation, perform his community’s less
desirable chores, and suffer whatever slings and arrows his white
neighbors choose to send his way. But occasionally he finds himself
an honest-to-goodness hero. This metamorphosis occurs whenever he
mounts the witness stand to testify against another Negro whom, for one
reason or another, the state wants to put out of the way. In Atlanta,
in 1913, it didn’t seem to make much difference that the victim was a
twenty-nine-year-old northern Jew.
After he graduated from Cornell, Brooklyn-born Leo M. Frank married
a Georgia girl. With her parents’ help, he was able to buy a small
interest in the National Pencil Factory, a medium-size enterprise
which operated out of a four-story building on South Forsyth Street in
Atlanta. National employed more than one hundred employees, most of
whom were women, and Frank, who was also its production superintendent,
directly supervised their work from his tiny second-floor front office.
The factory building was a narrow rectangular structure which ran 150
feet back from South Forsyth Street to a small alley. The entrance
to the plant was through an enclosed hallway on the first floor.
An elevator shaft was located in this hallway near the foot of a
glass-enclosed stairwell. Behind this shaft there was a hatchway which
opened into the basement. Outside of a boiler and some lockers for
Negro employees, the cellar was empty.
The stairs led up to the building’s second floor where Frank’s small
cubicle was located. His office opened into a large room where most of
the plant’s clerical help worked. At the very rear of the building was
National’s metal room where tips were attached to the ends of completed
pencils. The metal room, which was separated from the rest of the
second floor by a wooden partition, was entered by means of a double
glass door. The actual manufacturing of lead pencils was performed on
the third and fourth floors.
National’s employees were normally paid at noon on Saturday. However,
Saturday, April 26, 1913, was a holiday--Confederate Memorial Day--and
Frank had met his payroll the day before. But some of the girls who
worked in the metal room had been laid off the preceding Monday because
the plant had run out of pencil tips. Some of them decided to take
advantage of the holiday and pick up the few dollars owed them for
their single day’s work. One girl, fourteen-year-old Mary Phagan,
who lived in an Atlanta suburb, decided to kill two birds with one
stone--she would pick up her pay at the plant and then take in the
parade which was scheduled to start at two p.m.
Mary ate an early lunch of cabbage and wheat bread and left her house
at 11:45. She boarded a street car which let her off at the corner of
Broad and Hunter Streets, just a block away from the pencil factory.
She arrived at National shortly after noon and went immediately to
Frank’s office where she received a pay envelope containing $1.25. She
asked the superintendent whether a new supply of metal had arrived
and, when he said “No,” she left the office, and he listened to her
footsteps as she went down the stairs to the first floor. Only one
other person was ever to see her alive again.
Fifteen hours later, Newt Lee, the factory’s night watchman, was making
his rounds through the darkened building. In the cellar, near the back
of the building, he found the body of Mary Phagan. The girl had been
strangled and it appeared that she had probably been raped. Although no
spermatozoa were found on her body or her clothes, the epithelium of
the walls of the vagina was torn and bruised and her underwear, which
was ripped, was spotted with blood. From the condition of her clothes,
it was obvious that whoever had killed the girl had dragged her body
along the cellar floor. There was a deep cut on her head and numerous
bruises on her arms and legs.
Newt Lee was a Negro which was enough to make him a prime suspect. He
was immediately arrested and thrown into the Fulton County Jail, and it
seemed that the Atlanta police had more than enough to mark the case
solved. But because somebody thought that Frank had appeared unduly
nervous when he was informed of Mary’s death, the police decided to
book him, too. Frank proved anything but an uncooperative prisoner.
He hired private detectives to assist the Atlanta constabulary in its
efforts to find the girl’s murderer, and persuaded his captors to allow
him to spend some time alone with Lee in his cell in order to induce
him to talk.
But the night watchman stuck to his plea of innocence and was soon
released while his employer was held for the action of the grand jury.
A garrulous prostitute informed the police that Frank had telephoned
her the night before the murder and pleaded for a room. He had told
her that it was a matter of “life and death.” She also swore that, on
the day after Mary’s body was found, he had offered her a large sum of
money to leave town. Although she later repudiated her entire story
and disappeared, the damage was done and Frank, who was referred to
by a local magazine as “this filthy, perverted Jew of New York,” was
indicted on May 24, 1913, for Mary’s murder.
When the dead girl’s body was found, two notes, scribbled on sheets
of paper ripped from a scratch pad, were discovered on the floor near
her. Written in pidgin English, they claimed that “a long tall negro”
had been making love to Mary and that “i write while play with me.”
According to the author “he said he wood love me, laid down, play like
the night witch did it, but that long tall negro did buy his self.”
The police were convinced that Frank had written the notes in an
attempt to throw the blame on Lee. This theory was somewhat shaken
when, on the Thursday after the murder, a Negro porter named Jim Conley
was discovered scrubbing a bloodstained shirt in the factory’s basement
sink. Conley, who was later described as a “low squatty Negro with a
gingercake complexion,” was picked up and lodged in the county lockup
where he languished for almost three weeks. However, when he finally
convinced the police that he could not write, he was given back his
shirt and released.
Then Harry Scott, a Pinkerton operative engaged by the pencil factory
to solve the crime, discovered that Conley was much more literate than
he had let on. Now thoroughly frightened, the porter was returned
to jail where he poured out a tale of sex and murder that was sure
to find ready listeners. He said that on April 26th he had stood
watch for Frank, who habitually used the factory as seraglio, when
the superintendent had assaulted and killed Mary Phagan. Then, after
helping his employer hide the body in the basement, he had written
the two notes which had been found near her corpse. In all, he told
the investigators from the Solicitor General’s office four different
versions of this story. As each one was investigated and found
untenable, Conley assured his avid audience that “Sure, I lied but I
swear to God I am telling the truth this time.” The following July, he
was to tell a fifth story on the truth of which a man’s life was to
depend.
Although Frank testified before the coroner’s jury and claimed that he
neither knew Mary Phagan nor had killed her, he was swiftly indicted
for her murder and his trial began on July 28, 1913, in the Fulton
County Courthouse before Superior Court Judge L. S. Roan and an
all-male jury. By the time the trial got under way, all Atlanta had
prejudged the “Jew of New York” and the newspapers were off and running
on an orgy of sensationalism that was not to die down until Leo Frank
had become the symbol of the Gate City’s greatest shame.
Conley was, by all odds, the prosecution’s most important witness.
Ordinarily, the testimony of a Negro who “always seemed to be
kind of nervous or half drunk” wouldn’t have carried much weight
in a Georgia court. But what Arthur Garfield Hays referred to as
“counter-prejudices” were at work. To the rednecks, a Jew from Brooklyn
was even worse than a “no-account nigger” and Conley’s audience was
sublimely ready to believe every word he uttered.
He told a fantastic story. Frank had come to him early on the morning
of April 26th and said: “I want you to watch for me like you have
been doing the rest of the Saturdays.” According to Conley, for more
than two years he had been picking up a little extra change by acting
as Frank’s lookout while the superintendent was enjoying himself with
various women in his office. “I always stayed on the first floor ...
and watch for Mr. Frank, while he and a young lady would be upon the
second floor chatting.”
On this particular Saturday, the witness had been given very precise
instructions as to the afternoon’s activities. “Now, there will be a
young lady here after a while,” Frank had told him, “and me and her
are going to chat a little.” When the girl arrived, the superintendent
would “stomp like I did before” and Conley was to shut the door that
led to second floor. “Now, when I whistle, I will be through, so you
can go and unlock the door and come upstairs to my office like you were
going to borrow some money from me and that will give the young lady
time to get out.”
Shortly after noon, he swore, he had seen Mary Phagan climbing up
the steps to the superintendent’s office. He had heard her footsteps
approaching Frank’s cubicle and then the sound of two people walking
toward the metal room. A few minutes later, there was a scream,
followed by the sound of someone running from the metal room to
the front of the building. At that moment, another young lady had
entered the building, walked up the stairway to the second floor and
immediately come down and left the factory. How she had opened the
locked door was anybody’s guess.
Apparently, Conley was used to an occasional scream or two emanating
from the second floor on Saturday afternoons because he promptly went
to sleep. “Next thing I knew, Mr. Frank was up over my head stomping,
and then I went and locked the door ... and the next thing I heard Mr.
Frank whistling. When I heard him whistle, I went and unlocked the door
just like he said and went on up the steps. Mr. Frank was standing up
there at the top of the steps, shivering and trembling and rubbing his
hands like this. He had a little rope in his hand, a long, wide, piece
of cord. His eyes were wide and they looked right funny. He looked
funny out of his eyes. His face was red.”
After Frank had composed himself, he told the porter that there had
been a little trouble upstairs. “I wanted to be with the little girl,”
he had said, “and she refused me, and I struck her, and I guess I
struck her too hard, and she fell and hit her head against something,
and I don’t know how bad she got hurt. Of course, you know that I ain’t
built like other men.”