A Treasury of Foolishly Forgotten Americans (14 page)

The crimes were heinous, even by the lawless standards of the Wild West. Daniel Evans, a young Texan, had shot his traveling companion in the head and made off with his horse, saddle, and boots. William Whittington slashed his friend's throat and robbed him of $100 while the victim's son watched in horror. Horse thief James Moore murdered a deputy marshal and boasted that the lawman was “the eighth man I've killed—niggers and Indians I don't count.” Smoker Mankiller, an eighteen-year-old Cherokee, borrowed his neighbor's new Winchester rifle and then, for no apparent reason, shot him with it. Samuel Fooy robbed and killed an itinerant schoolteacher in the Cherokee Nation. And Edmund “Heck” Campbell resolved a dispute with one Lawson Ross by shooting the man and his mistress after a prayer meeting. All six murderers were condemned to swing together on the same gallows by Isaac C. Parker, the “Hanging Judge” who came to personify rough frontier justice.

“I sentence you to hang by the neck until you are dead, dead, dead,” Parker reportedly said to Evans, the first man he ever condemned, as the judge's eyes filled with tears. To Smoker Mankiller he pronounced, “The sword of human justice is about to fall upon your guilty head.” And in an address to Campbell, Parker stated in biblical tones, “Your fate is inevitable…. Let me, therefore, beg of you to fly to your Maker for that mercy and pardon which you cannot expect from mortals…and endeavor to seize upon the salvation of the cross.” On September 3, 1875, before an estimated crowd of five thousand, the sentences were carried out on a gallows built for six at Fort Smith, Arkansas. Over the next two decades, seventy-three more men, in various combinations, would meet a similar fate under Parker's judicial maxim: “Permit no innocent man to suffer; let no guilty man escape.”

The much-feared judge presided over a unique federal court at Fort Smith: the U.S. District Court for the Western District of Arkansas, known by some as “the Court of the Damned.” Its jurisdiction encompassed a staggering seventy-four thousand square miles, the largest in the nation, and included not only eighteen counties in Arkansas, but the entire Indian Territory to the west in what is now Oklahoma. Because of its sheer size and remoteness, criminals of every kind found ample refuge in the territory that had been set aside for displaced Native Americans and divided into separate “nations” for the “Five Civilized Tribes”: Creek, Cherokee, Seminole, Chickasaw, and Choctaw. The vast majority of offenses tried at Fort Smith were “crimes committed in the Indian country by…refugee criminals from every state in the Union,” Parker later wrote. And though he labored for over twenty years to “establish the supremacy of law in the Indian country,” he was ultimately unsuccessful. The job was simply too onerous. Parker did his best, though. Over the course of his tenure—from his appointment at age thirty-seven by President Ulysses Grant in 1875 to his death in 1896—more than 12,800 cases were docketed, most of them criminal. He may have exaggerated when he wrote that more “desperados, murderers and outlaws” had been “brought to merited justice…than in any other courts in the world,” but he certainly proved himself a committed force for law and order.

Parker, a Civil War veteran and two-term congressman from Missouri, arrived at Fort Smith after his appointment as a man on a mission—not only to tackle the lawlessness that infested the Indian Territory, but to restore the reputation of the notoriously corrupt court over which he was to preside. Five marshals and three district attorneys had been removed from office during the prior eight years, and Parker's predecessor, William Story, had been facing impeachment when he resigned in 1874. Diligent attention to his duties and swift justice quickly earned the new judge respect from a skeptical community. Just a week after his arrival in May, Parker opened court and tackled the enormous backlog of cases left by the ineffectual Story. That September the first six convicted murderers were hanged together. Another batch of five soon followed, and the fearsome reputation of the Hanging Judge was launched.

Executions at Fort Smith were public affairs where thousands gathered, many from distant parts, to witness the grisly spectacle of death. A carnival-like atmosphere pervaded. People brought picnics; hawkers sold whiskey and souvenirs. The condemned were taken from the squalid prison in the courthouse basement known as “Hell on the Border”
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and led in chains to the gallows. On the scaffold their death warrants were read, after which the doomed men were given the opportunity to speak their last words. Some were contrite; others defiant. James Moore, for one, surveyed the crowd in front of him and declared, “There are worse men here than me.” Many were too paralyzed by fear to speak at all. As local clergy led the crowd in hymns and prayers, black hoods were placed over the heads of the condemned and the nooses adjusted around their necks by George Maledon, the so-called “Prince of Hangmen” who presided over nearly all the executions during Judge Parker's tenure. The trap-door was then sprung.

Although Maledon took great pride in the skill and technique he brought to his job—importing handwoven hemp from St. Louis, which he oiled and impregnated with pitch to avoid slippage—not all the criminals were dispatched efficiently. Indeed, some struggled and convulsed for five minutes or more before they finally breathed their last. Nineteen men died in front of huge crowds before a wall was erected around the gallows to keep executions more private. Thus, potential onlookers were spared such ghastly episodes as the hour-long strangulation of Edward Fulsome in 1882, and the near decapitation of John Thorton a decade later. Still, newspapers could always be relied upon to report the lurid details of executions the public could no longer see.

Judge Parker has often been portrayed as a man who relished sending other men to the gallows, watching their executions with grim satisfaction from a courthouse window. Although he did hand down more death sentences than any other American judge, he presided over an enormous district where an extraordinary number of capital crimes were committed. The law mandated the ultimate punishment in cases of murder and rape, which left Parker no options in his sentencing, and at the end of his life he professed to favor the abolition of the death penalty—as long as there was “a certainty of punishment.”

Until 1889, there was no appeal in capital cases from the Western District of Arkansas,
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and the condemned could only hope for a presidential commutation or a pardon. Parker frequently supported applications for executive clemency, which suggests he may not have been as bloodthirsty as people believed. On the other hand, he was often indignant when clemency was granted against his wishes. And, if he really was opposed to the death penalty, he nevertheless seemed to favor the prosecution in those cases where it would be applied, particularly with his often biased jury instructions. “Juries should be led,” he wrote. “They have a right to expect that, and if guided will render that justice that is the greatest pillar of society.” Or, as his critics complained, that justice demanded by Parker.

Though Judge Parker's reputation rests largely on the capital cases he heard, they were only a small percentage of those that came through his courtroom—the busiest criminal tribunal in the federal system.
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A small army of deputy marshals patrolled the Indian Territory and followed the judge's admonition to “bring [outlaws] in alive—or dead!” Many deputies were killed while performing their duties in the territory (a “Golgotha to [law] officers,” as Parker once called it), and a few, like the infamous Dalton brothers, became criminals themselves. Among the horde of thieves, smugglers, bigamists, and embezzlers hauled into Fort Smith, one of the most notorious was the “Bandit Queen” Belle Starr, who frequently stood as a defendant before Parker (and with whom he reportedly participated in a mock stagecoach robbery during a local Wild West exhibition in 1886).

The rampant lawlessness in the Indian Territory was not caused by its legal Indian inhabitants, Parker always said, but by white interlopers who exploited them and their land. Indeed, the vast majority of crimes committed in the territory were violations of the Intercourse Act of 1834, which sought to protect Native Americans from whiskey peddlers, unauthorized hunters, coal thieves, timber poachers, and other such intruders. Tribal courts in the five Nations were not permitted to try whites, and Parker saw his court as the only shield against crime and exploitation that the Indians in his jurisdiction could rely upon. “The territory was set apart for the Indians in 1828,” he said. “The government of that time promised them protection. That promise has been ignored. The only protection that has ever been afforded them is through the courts. To us who have been located on this borderland, has fallen the task of acting as protectors.”

Yet while Parker maintained, with all the paternalism typical of the time, that his court had guarded Indian rights and “aided them in their journey along the pathway to civilization,” many of his rulings demonstrated his conviction that the U.S. government held ultimate authority over them. “Time and again he ruled against the Five Civilized Tribes,” writes historian Roger H. Tuller, “declaring that they could not prevent the construction of railroads across their lands, denying their rights to extradite criminals or to try adopted citizens. In fact, Parker contributed to the diminution of tribal self-determination and hastened the territorial status [of Oklahoma] that he stridently opposed by consistently undermining American Indian sovereignty.” It was one of many peculiar contradictions in this remarkable judge. His allegiance to rule of law, and his apparent contempt for it, was another.

For the first fifteen years of his tenure at Fort Smith, Parker was the most powerful district judge in the nation. His decisions were final, and those sentenced in his court had no right to appeal. In 1888, however, a series of bills were introduced in Congress that would curb the judge's authority and allow appeals of capital convictions to the Supreme Court. Senator James K. Jones of Arkansas declared that “the commonest principles of humanity” demanded that “this anomaly in our judicial system” be changed to provide a “remedy for what seems to be an outrageous wrong.” He was echoed by Senator George G. Vest of Missouri, an outspoken critic of Parker's, who said that “for years men have been executed without any right to ask the Supreme Court of the United States whether it be judicial murder or not.” Although President Grover Cleveland killed one bill with a pocket veto, a nearly identical one passed in both Houses the following year and became law without the president's signature. Parker's nearly absolute power had been broken. Coinciding with this, his court's jurisdiction in the Indian Territory was gradually reduced until it was abolished altogether in 1896. For the judge who saw himself and his court as the only bulwark against chaos in the troubled region—and who had gotten rather used to operating with near autonomy—these developments were intolerable. And he lashed out fiercely at the system that imposed them.

Beginning in 1890, the Supreme Court remanded nearly two-thirds of capital appeals from Fort Smith for new trials, often because of the judge's leading jury instructions, which tended to favor the prosecution. This enraged Parker, who contemptuously ignored admonitions from his superiors in the Justice Department to modify his instructions, and decried the Supreme Court's “mania for reversing murder cases” as well as its ignorance of criminal matters. He viewed the appellate process as a hindrance to the imposition of law and order in his jurisdiction—his way. It destroyed the “effect of trial, conviction, and punishment,” he wrote in one of his many screeds, and gave comfort to dangerous criminals.

The judge gave full vent to his anger and frustration in 1895, when an outlaw named Crawford Goldsby, better known as “Cherokee Bill,” killed a guard while in prison awaiting a decision on the appeal of a murder conviction. The Supreme Court was responsible for the guard's death, Parker fumed in an interview with the
St. Louis Globe-Democrat,
as well as for the general upsurge in crime. The appeals process allowed condemned convicts a “long breathing spell” before the high court heard their cases, allowing murderers like Goldsby the opportunity to kill again. And, Parker charged, when the justices overturned convictions, they “always” did so “upon the flimsiest of technicalities.”

Judge Parker's final years on the bench at Fort Smith were not happy ones. His rants in the press continued as what he perceived as his life's work was unraveled by a gradually shrinking jurisdiction and an appeals process that severely undermined “the certainty of punishment” he so valued. After one particularly vitriolic newspaper exchange with Solicitor General Edward B. Whitney, whom he called a “legal imbecile” who knew “absolutely nothing of criminal law,” Parker was reprimanded by Attorney General Judson Harmon for his general conduct. “I do not doubt your ability or devotion,” Harmon wrote, “but it is quite apparent that you are…disposed to be insubordinate and not yield fully to…the Supreme Court.”

Despite Parker's best efforts for more than twenty years, crime continued unabated in the Indian Territory. On July 30, 1896, James C. Casharego became the seventy-ninth and last man to be hanged during the judge's tenure at Fort Smith. Casharego had killed his traveling companion in the Creek Nation, and tried to cover up the crime by dumping the body into a creek and setting a fire on the spot where the victim had bled to death. The earth was dry, however, and some of the blood had seeped into cracks. Deputies dug up several samples of the tainted soil, which were then introduced at Casharego's trial. He was duly convicted. “Even nature revolted against your crime,” Parker told the condemned man. “The earth opened and drank up the blood, held it in a fast embrace until the time it should appear against you; the water, too, threw up its dead and bore upon its placid bosom the foul evidence of your crime.”