The Branch and the Scaffold

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by The Branch


  Moore, whose deep sunburn had had little time to fade since his capture, plucked at his moustaches and glared at the witnesses against him, who identified him as one of the territory’s leading horse thieves. While fleeing a citizens’ posse led by two of James Fagan’s deputies, the desperado had shot and killed William Spivey, the first federal officer to give his life in the service of the Eighth District court. On that occasion Moore escaped, only to be arrested by two more deputy marshals when he abandoned horse stealing for cattle rustling. A partner testifying against him gave evidence that Moore had been traveling with the owner of a herd, intending to murder him to gain possession, when he wandered into the deputies’ hands. Shackled during the journey to Fort Smith, the defendant had boasted of having killed eight men.

  “The United States versus Edmund Campbell. Charge, murder.”

  A Negro native of the Choctaw Nation, the heavy-shouldered Campbell had drunk himself into a fury over a hasty remark made by a neighbor, Lawson Ross, gone to Ross’s house, and butchered the man and his common-law wife. He stared at the floor throughout the trial with angry eyes in a sullen face.

  “The United States versus Smoker Mankiller. Charge, murder.”

  Unfortunately named for his present circumstances, the Choctaw sat broad and motionless at the defense table, not understanding a word of the evidence against him in English. For no reason ever given he’d borrowed a gun from an acquaintance named William Short and shot him to death with it. He’d been overheard proudly acknowledging the act, but since his arrest had changed his story, blaming it on two brothers named Welch.

  “The United States versus John Whittington. Charge, murder.”

  The defendant was visibly ill, sallow-featured and shining with perspiration. The eighteen-year-old son of the victim in the case, John J. Turner, confirmed that he’d seen Whittington stab Turner’s father along the Red River in the Chickasaw Nation, and had subdued and held him until help came to bring him to justice. Whittington and the elder Turner had been seen drinking in a low saloon on the Texas side of the river, where Turner had paid the bartender from a swollen leather poke. It was determined that on the way back home, the man under examination had bludgeoned his companion with a makeshift club, then brought his knife into play when the other had refused to stay down. When arrested, Whittington had had a large sum of money in his pocket.

  “The United States versus Samuel Fooy. Charge, murder.”

  Fooy, Cherokee on his mother’s side, had confessed to the slaying of John Emmett Neff, a schoolteacher in the Cherokee Nation whose skeleton had been found a year later with a bullet hole in the skull. Returning from the tribal capital of Tahlequah with three hundred dollars in back salary, Neff had offered the farm wife who had put him up for the night a five-dollar bill to settle the fifty-cent fee. Told she could not change it, the schoolteacher had struck out on foot for a nearby store to procure the silver. Fooy, a neighbor visiting the house, had gone out after him. When the victim was identified based on his name in a book found near the remains, the rest was leg-work.

  The six men were tried and convicted in a little more than a month. Judge Parker’s charges to the juries left small doubt as to his sympathies, and Chief Prosecutor Clayton listened in wonder as the man behind the desk instructed them which way to vote. When the foreman in the Evans case informed him of the panel’s decision, Parker thanked him in a tone of satisfaction Clayton hadn’t heard from him previously. At his sentencing, the young man who had coveted a pair of fine boots even unto death stood tight-faced before the cruel voice from the bench. Execution was scheduled for September 3, 1875.

  “I sentence you to hang by the neck until you are dead, dead, dead!” Parker banged his gavel.

  And then he wept.

  Clayton stood throughout each sentencing, accompanied by his assistant, a young, ham-faced man named James Brizzolara, who at the age of fourteen had risen to the rank of colonel in the insurgent army of Giuseppe Garibaldi in Italy. The judge’s tone on these occasions remained level.

  “There, on the morning of September third, eighteen seventy-five, you will be conducted . . .”

  “. . . on the morning of September third, eighteen seventy-five . . .”

  “. . . September third, eighteen seventy-five . . .”

  “. . . September third . . .”

  “By God,” Clayton was heard to mutter, when the date was repeated a fourth time. “By God.”

  On the sixth and last, young Colonel Brizzolara whispered to his superior, “They’ll not make mention of Sam Grant’s wash line after this. What do you think they’ll call the infernal machine now?”

  “‘Parker’s tears.’” Clayton smoothed a cigar between his fingers.

  Ropes were not difficult to obtain in Fort Smith, where cattle outfits from Texas stopped to lubricate their throats and replenish their equipment before swimming the herds across the Arkansas to the railroad depot. George Maledon, however, was particular, and incurred the impatience of clerks in half a dozen saddleries before settling on two hundred feet of the best and thickest hemp to be found east of El Paso. He procured linseed oil as well and spent hours working it by hand into the fibers until they were as pliant as a gentlewoman’s hair and would glide around the coarsest neck until the gargantuan knot fixed itself beneath the mastoid bone behind the left ear and snapped the cervical vertebra like a stalk of celery; to the knot itself he applied pitch to prevent slipping. He’d paid close attention to the process when John Childers was hanged for killing a peddler, and obtained the technical information from Dr. Ben T. Du Val, who stitched up the prisoners when they got into fights and had timed Childers’ moment of death against his heavy pocket watch for the official record. Forty-five, Bavarian-born, Maledon had been raised in Detroit, served with the First Arkansas Federal Battery during the rebellion, and been a city policeman before accepting a position as deputy sheriff of Sebastian County and a part-time appointment as deputy U.S. marshal to legitimize his service in the Fort Smith jail. He’d slain a man during an escape attempt and thought no more of it than he had of shooting Confederate rebels.

  Two-hundred-pound sandbags manufactured for the purpose of damming the banks when the Arkansas River swelled in the spring were tied to ropes, and Maledon spent the weeks leading to the executions industriously, testing the single twenty-foot trap and the ropes’ tensile strength several times daily. Soon, the squee-thump of the apparatus became as much a part of the sounds of Fort Smith as the creak and rattle of wagons and the tintack pianos in the Silver Dollar, the House of Lords, the Last Chance, and the whorehouses in the Row.

  From time to time, as the settlement on the river entered the smothering heat of late summer, the little man paused to mop his brow and watch the steady stream of traffic turn up the dust on Garrison Avenue. Dust and traffic both grew heavier by the day.

  A former military man who had taught tactics and strategy at a seminary in Pennsylvania, William H. H. Clayton stood absolutely erect at the window in Parker’s chambers. From one angle showed Maledon’s mighty engine of human destruction, from another the incoming tide of carriages, buckboards, and riders on horseback. Wheels locked hubs, mules balked, curses flowed.

  “They’ve been coming in all week,” the prosecutor said. “The hotels and boardinghouses are filled. The price of tent canvas has gone up three times in three days. I don’t know how many more our little hamlet will hold.”

  “It’s good for trade. Why should the saloons be the only ones to profit?” The judge, in shirtsleeves and the black waistcoat he wore to church, sat behind the desk reading sworn affidavits. On Sundays it was his habit in this his first season on the bench to accompany his wife and son to Methodist services, dine with them at noon in the stone commissary where they had taken up residence, then report to the courthouse to bring himself up to date on the docket.

  “There isn’t a farmer in the state who’s stayed home to bring in the harvest,” said Clayton, “nor a civilized Indian in the t
erritory who hasn’t pawned his watch to make the trip. They’ve all read about the grand exhibition, or had an account read to them if they don’t know their letters. Something about it appeared in the New York Herald last week.”

  “Splendid. A public judgment followed by public punishment is the swiftest way to clear the foul air left by Story and his cronies.”

  “The Eastern press seems to hold that the fate of these men should be private.”

  “An execution carried out in secrecy is no better than lynching from a dry branch.”

  “You ought to write that, and set the record straight. The journalists have all convinced themselves we’re savages out here.”

  “They’ll write what they please regardless. I used to see them on Capitol Hill, scribbling in their grubby little blocks before they’d been in to meet with their subjects. They have their forum and I have mine.”

  Clayton observed Maledon at work. The scaffold was visible from every building in the garrison. “How much more must he test? The man is a fanatic.”

  “Fanatics have their uses. I’m confident he’ll serve this court well.”

  “No doubt. He’s committed. I confess I preferred having him in the basement. The faces in the jail are milder.”

  “I didn’t reassign him for his looks.”

  Spectators began entering the garrison at dawn. By ten o’clock, the hour scheduled for the execution, the grounds of the old powder magazine were no longer visible for the bodies that had pressed themselves in around the scaffold. Others perched like pigeons on porch roofs and hung like fruit from trees. Deputy marshals and guards from the jail, armed with revolvers and carbines, kept the central structure clear. The songbird colors worn by the women from the Row showed brightly among dark suits, overalls, and gingham dresses, and the stooped shoulders of the Reverend H. M. Granade drew a question mark at the top of the gallows stairs beside the brief apostrophe of George Maledon, turned out in a new suit and a gray slouch hat. His hands hung at his sides, within reach of the lever that opened the long trap by means of a simple gear. It was difficult to tell where his tangled beard ended and black broadcloth began. His eyes hid beneath a mantel of bone as substantial as the scaffold itself.

  Parker’s stolid figure stood framed in a ground-floor window of the courthouse. It was not seen to move.

  On the stroke of the hour the condemned, escorted by deputies led by Marshal Fagan, shuttle-stopped their way from the jail, wrists shackled and irons on their ankles. They climbed the stairs and assumed their places on the paired planks of the trap, nooses stirring before them in the breeze from the river. Granade read aloud a pious statement dictated by John Whittington, the knife-murderer, then led the crowd in a hymn. Asked by Fagan if they had anything to say, only two of the men in shackles spoke: Boot-fancier Daniel Evans looked out over the crowd and said, “There are worse men here than me.” James Moore, the horse thief, said good-bye to an acquaintance in the audience. Maledon left his post to adjust the black caps and fuss with the nooses. When at length he was satisfied with their placement, he returned to the lever and pulled.

  Dr. Du Val, standing beneath the platform, inspected the six men for pulses, waiting two minutes for each with watch in hand. At the end of the month he would collect two dollars per man for this service.

  He nodded. The man in the window turned away.

  THREE

  The day of a hanging was not a holiday at the courthouse. Sessions took place daily except Sundays and Christmas and were not suspended even on Independence Day, when Parker directed the windows be shut to reduce distraction from early fireworks explosions. On September 3, while the bodies unclaimed by relatives were being laid to rest in a plot behind the building, the judge signed witness-and juror-fee vouchers in his slashing hand, instructed clerk Wheeler to handle them with dispatch, and summoned James F. Fagan into his chambers.

  The U.S. marshal’s round Irish face retained its high color as Parker spoke. His hands hung at his sides. He considered crossing one’s arms an indicator of weakness and standing with one’s hands in one’s pockets a breach of etiquette.

  He listened with increasing wonder and no expression on his features. The judge was a man of clarity, who employed none of the ambiguous turns of phrase that Fagan had expected from a former member of Congress. When Parker stopped, he said, “Bringing the deputy census up to two hundred’s a tall order. Washington pays two dollars per prisoner and six cents a mile one way. The nigger that cleans the spitoons in the Hole-in-the-Wall clears more than that Saturday night when the herd’s in. Then there’s the privilege of getting killed, like poor Bill Spivey.”

  “They’re entitled to collect rewards offered for fugitives not wanted for federal crimes, so long as those activities don’t interfere with their responsibility to this court. An enterprising man can shelter and clothe a family on much less. And this court isn’t interested in what becomes of the chattel of the criminals they’re forced to kill in the course of duty.”

  “They’re fortunate if whatever it brings pays for the burial. Up to now they’ve been responsible for that if there’s none else to stand the cost.”

  “So they’ll remain. I don’t intend to encourage the vigilante compulsion.”

  Fagan scanned the large-scale territorial map pinned to the wall behind the desk, divided into the five nations. “Two hundred deputies to cover seventy-four thousand square miles of raw country. It might be worth twenty dollars to the undertaker just to avoid the hazard of dragging some murthering scum all the way back along the Canadian without a citizens’ posse for support.”

  “I can’t challenge their discretion without witnesses to the contrary.”

  “You’re safe enough there. If they won’t peach on the killers, they sure won’t come forward against them what killed them.”

  Parker thunked a dilapidated leather portfolio onto the marshal’s side of the desk. “I’ve reopened the files on unsolved murders and other felonies extending back five years. Here are warrants for the arrests of the better known transgressors. Tell your deputies to bring them back alive or dead.”

  “Won’t that encourage the vigilante compulsion?”

  “You said yourself we won’t be inundated with applicants. If we can’t attract them with gold, we’ll offer them a feudal system of independent action. That should appeal to the sort we require.”

  “Men like that are sure to have paper out on them somewhere.”

  “I don’t insist upon appointing men of character, although if there’s graft in the business it had better be small enough not to reach my ears. I detest men of violence, but that’s what’s needed to keep the peace in a place outside the jurisdiction of every local court. It’s been let fester too long while men have sat here who by all that’s decent should have been in shackles downstairs.”

  “If it’s killers you’re after hiring, you might consider going down there for your recruitment.”

  Parker gestured with folded spectacles. “Cowards and back-shooters. Child molesters. Wife beaters and whiskey smugglers and howling lunatics. Animals who slew whole families of samaritans under their own roofs. I want the jail population to increase, and Maledon not kept idle. That means saturating the territory, and I can’t do that with sixty men. Begin with the rangers in Texas. Find out who’s restless and like to resign. Make contact with county sheriffs and city marshals who have worked with your office and whose performances meet your standards. Review every county election and city appointment over the past year, discover who lost by a hair or because he was unpopular for any reason other than corruption or incompetence. There’s a limit to the first and I won’t tolerate the second. Send the wires and this court will assume the expense.”

  “Is it your intention to strip every Western community of its protection?”

  “That is not my intention, although it will likely be the result. My needs are more pressing. I don’t want drunks and gamblers like that preening man Hickok, or bushwhackers like the gang
in Dodge City. Such men are timid when they become separated from the pack. Pin that star on men of swift judgment and good instincts.”

  “It’ll be the roughest bunch of hooligans this side of County Limerick,” Fagan said.

  Early on, as news of the sextuple execution in Fort Smith spread, rooted itself in the umber soil of the western Indian Nations, and grew into the solid stalk of legend, the men whom Marshal Fagan appointed to swell the judge’s standing army abandoned the practice of introducing themselves as deputy U.S. marshals. Instead, when they entered the quarters of local law enforcement officers and tribal policemen to show their warrants, they said: “We ride for Parker.”

  Sometimes, in deference to rugged country or to cover ground, they broke up and rode in pairs or singles, but as the majority of the casualties they would suffer occurred on these occasions, they formed ragged escorts around stout little wagons built of elm, with canvas sheets to protect the passengers from rain and sun for trial and execution. With these they entered the settlements well behind their reputation. The deputies used Winchesters to pry a path between rubbernecks pressing in to see what new animals the circus had brought. Inside, accused felons, rounded up like stray dogs, rode in manacles on the sideboards and decks. At any given time—so went the rumor—one fourth of the worst element in the Nations was at large, one fourth was in the Fort Smith jail, and one fourth was on its way there in the “tumbleweed wagons.”

  “That’s three-fourths,” said tenderheels. “What about the rest?”

  “That fourth rides for Parker.”

  Charlie Burns had served as jailer under judges Caldwell—a good fellow, cheerful and kind to subordinates—Story—a distracted man with eyes too mobile in his head for trust—and now Parker, whose jury, to his mind, was still deliberating—and seen a number of things that few would accept as truth if they weren’t part of the record that continued to grow on shelves and in pigeonholes upstairs, like mushrooms in the damp.

 

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