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 Peterson 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 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