Lincoln Herald

At one o’clock on the afternoon of July 7, 1865, a blue-clad officer stepped through the east door of the deputy warden’s quarters into the sun-filled courtyard of the Arsenal grounds. The heat of the early afternoon had become oppressive to the large gathering that had been waiting for over an hour. Major General Winfield Scott Hancock, a combat veteran known to his men as "Hancock the Superb," removed a white linen hankerchief from his coat and carefully wiped the perspiration from his reddened face. He had already delayed the official proceedings for nearly an hour in the vain hope of receiving word from the new president, Andrew Johnson. Feeling sure that Johnson would stay the hanging of Mary E. Surratt, Hancock had set up a cavalry relay from the President's House to the Arsenal grounds on Greenleaf Point insuring rapid communication for a last minute reprieve. Knowing that the execution could not take place without his express orders, he delibertly absented himself from the grounds hoping to gain as much time as possible while others sought to reach the president.

Three hours earlier, Hancock had personally appeared in the District Court for Washington carrying President Johnson's executive order refusing a writ of habeas corpus on behalf of Mary Surratt. The issuing judge, John T. Wiley, acquiesced in the President's removing the last obstacle to the government's effort to hang Mary Surratt.

A veteran soldier, Hancock had no sympathy for the three convicted male conspirators, but this pathetic woman was a different story. Now as the oppressive heat passed its midday peak, he could wait no longer. Time was slipping toward its inevitable end. Carefull replacing the linen kerchief in the lining of his tunic, Hancock brought his eyes to bear on those of a small, rigidly posed officer who dutifully awaited his orders. Captain Christian Rath, a precise soldier who was officially charged as executioner by provost marshal John F. Hartranft, had seen that every detail was ready for the midddy hanging. Rath had been standing in the searing heat next to his massive gallows for nearly an hour waiting Hancock's order.

The two officers fixed their eyes on each other. Hancock felt a bead of perspiration across his forehead as he squinted at the little man's inquiring gaxe. A nonsensical rumor had spread earlier that Mary Surratt's attorneys had actually arranged for Hancock's abduction in a desperate effort to delay her execution after failing to obtain a writ earlier that morning. Nothing could save the poor woman now, And all was in readiness for the final order. Hancock closed his eyes as if to shut out the scene before him and nodded almost imperceptibly to Rath. Pivoting toward the soldiers waiting nervously in the shade of the scaffold. Rath barked his command. The soldiers swung the bludgeons against the posts supporting the twin platforms that held all that was mortal of the condemned souls. The crack from the rams resonated across the courtyard as they struck away the supporting pillars. The eyes of every spectator were transfixed on the wooden trapdoors still suspended level in the burning air. Everything was deathly still. Time was frozen for a brief moment. Then, with a horrible screeching sound the platforms plunged from beneath the bodies they had held so safely only moments before. The four wretched beings dropped in unison with a snapping thud. Justice had been served - or had it?

The execution of the four condemned conspirators on July 7, 1865, was the finale to the sentences of a military commission established at the direction of President Andrew Johnson with the official approval of Attorney-General James Speed.

With the conclusion of that final act on July 7th, the justice of the punishments meted out by the military commission, which was charged with "removing the stain of innocent blood from the land," became a matter of controversy that still swirls about the heads of historians and students alike.

The principle question arising from this unique episode is whether the military commission was a properly constituted body that had legal authority to try, convict, and execute the accused conspirators in the murder of Abraham Lincoln. those who answer against the commission cite as their principal justification for its illegal basis the Supreme Court decision of 1866 known as Ex Parte Milligan.

The serious student of the assassination can readily cite this landmark decision in which the supreme court ruled that the military commission was without jurusdiction in those districts removed from military zones in which the civil courts were open and functioning as they were within the District of Columbia in May of 1865. This ruling has been used by scholars and students alike to condemn the trial of the conspirators and brand the commission that tried them as illegal. But is it so?

While the supreme court was never petitioned to rule on the legality of the trial of 1865, a series of rulings have emerged over the years that bear on this question and warrant our review. In attempting to arrive at a conclusion concerning the status of the commission, however, we need to reach back to those opening days of the rebellion when constitutional questions and civil liberties were being subjected to a series of executive actions that ultimately led to the commission's existence and sanction.

If the days between Lincoln's election and his inauguration were filled with strife and discord, the ones immediately following were even moreso. Acts of open hostility against the Federal government increased with alarming frequency until open warfare finally erupted with the Confederate bombardment of Fort Sumter. Ten days later, Federal troops were involved in open riot on the streets of Baltimore within forty miles of the national capital.

Experiencing increasing difficulty and frustration in dealing with individuals and groups opposed to the government's efforts to suppress the rebellion, Lincoln decided to move quickly to render harmless those people whom he deemed detrimental to his, and therefore, the Union's cause. On April 25, 1861, he issued an order to General Winfield Scott authorizing Scott to suspend the priviledge of the writ of habeas corpus along certain military lines, but only under the "extremest necessity." Within two days, on April 27, Lincoln issued a second simi,ar order to Scott authorizing him to suspend the writ "if necessary" along the military line from Philadelphia to Washington.

Lincoln desperately needed troops and, having the experience of Baltimore on the 19th of April fresh in his mind, meant to obtain them as quickly as possible without further hindrance. He had seized upon the opportunity of suspending the writ of habeas corpus as a military necessity. In the eyes of Lincoln and many of his supporters civil processes were becoming increasingly ineffectice. The increasing number of arrests for treasonist acts and the growing failures to stem the tide of opposition caused Federal authorities to lose confidence in the civil courts and turn instead to the military.

In suspending the writ of habeas corpus, Lincoln contended he was authorized by the constitutional provision that states in part: "The Priviledge of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the Public Safety may require it." Lincoln interpreted this to mean that the president was empowered to suspend the writ if and when he deemed the public safety to be in jeopardy.

Censure of Lincoln's action was immediate. Controversy swirled about the embattled president and his order to limit civil liberties. His first hard test arose in a confrontation with the venerable, 84-year-old Supreme Court Chief Justice, Roger Brooke Taney.

On the 25th of May, 186, a troop of Pennsylvania militia had arrested a prominant Marylander, John B. Merryman, in the early hours of the morning at his Cockeysville home. Merryman, whose sympathies and militant actions were clearly against the government, was taken to Baltimore where he was confined in the military prison at Fort McHenry.

Merryman, an astute lawyer, immediately petitioned for his release on a writ of habeas corpus before Judge Taney who was then acting as a circuit court judge for the District of Baltimore. Taney promptly issued the writ ordering the commander of the district, Major General George B. Cadwallader, to deliver Merryman to the court immediately. The General replied by asking Taney for more time so that he might consult with his Commander-in-Chief as to whether he should comply with the judge's order, whereupon Taney answered by sending the marshal for the district of Baltimore to Fort McHenry to arrest the general on contempt charges. The marshal was met at the gate to the fort by an armed guard which refused his admittance, forcing him to return to Taney empty-handed. The military had stood down the civil law and its most prestigous judge, and Taney well knew exactly where to level his wrath.

On the 28th of May the aging Chief Justice strode into the overflowing courtroom in Baltimore to tumultuous cheers and delivered a stinging oration. In his castigation of the President, Taney traced the history of the writ down through the English common law to the U. S. Constitution sharply pointing out that the President of the United States had no authority whatsoever to suspend this sacred and valuable right. He further admonished Lincoln by pointing out Lincoln's oath to uphold the Constitution and the law of the land, and told him to start doing so now! But outwitting Lincoln, as the country and the English-speaking world would soon learn, was not an easy task. Sensing the difficulty of his position and realizing that he could gain little and lose much in a jousting match with the wily Chief Justice, Lincoln pocketed the judge's ruling and kept silent. Tany had had his day in court but lost to Lincoln and the weight of arms.

During the next year and a half Lincoln suspended the writ on five separate occasions each time specifying special and somewhat narrow circumstances. Then on the 24th of September, 1862, he issued a sweeping proclamation in which all "rebels, and insurgents, their aiders and abettors" were subject to martial law and trial by military commission, and further, suspended the writ of habeas corpus for all persons ... confined by military authority."

Up to this point the suspension of the writ had been supported by presidential authority only in narrowly defined cases. This new proclamation, however, had broad and sweeping implications. The suspension pertained to only those instances that involved military arrest of civilians presumably based on military necessity. While this suspension of the writ had a very precise applicability, in reality it became an order for wholesale arrests.

The use of the military commission throughout the Civil War was not infrequent. During the four-year period approximately 4,200 commissions sat in judgement over nearly 13,000 defendants and were not at all advaerse to "hanging judgements."

This relatively new form of military justice actually had its origin during the war with Mexico in 1846. When General Winfield Scott took his American forces into Mexico he was faced with a dilemma not previously encountered. He was forced to improvise ways to deal with serious crimes committed by civilians that would have been triable in the civilian courts while in the United States. Not having U. S. civil courts available to try American citizens for their alleged offenses in Mexico, Scott established two courts of his own: the military commission, which handled civil offenses, and the Council of War, which covered offenses against the "Laws of War." Scott apparently took this option reluctantly and only after unsuccessfully petitioning the Congress for direction in this troublesome manner

The Council of War did not survive the Mexican conflict, and merged into the military commission, which now also assumed responsibility for trying those cases that involved offenses against the "laws of war."

It is interesting to note that although the authority for establishing military tribunals throughout this period was without statuatory basis, their legal basis and use were never challenged before the Supreme Court during the four years of the Civil war save in one instance. In this case, which the Supreme Court had an opportunity to hear arguements on the legal jurisdiction of military tribunals, it avoided the issue by decioding it lacked jurisdiction. The case involved the Copperhead congressman from Ohio, Clement L. Vallandigham. Vallandigham had been arrested by the military for his anti-war efforts in Ohio and elsewhere and was brought to trial before a military tribunal in Cincinnati in 1863. The outcome of the trial, which proved to be an embarrassment to Lincoln, resulted in Vallandigham's "banishment" from Union territory sending him to the Confederacy. Vallandigham filed a petition with the Supreme Court for a writ of habeas corpus and challenged the jurisdiction of the tribunal that tried him. The court side-stepped the issue by ruling it was without jurisdiction in the case, military tribunals falling outside the Judicial Act of 1789. The court, in effect, gave its back-of-the-hand approval to the military tribunal as a war court. Interestingly, in the several cases that have come before the Supreme Court over the 83-year period involving military tribunals, that court has never ruled against the authority of the tribunal, only as to its jurisdiction in certain instances.

The use of the military tribunal was put to its severest test following the murder of President Lincoln. With all but two of the principles in shackles, the new president, Andrew Johnson, issued an executive order on May 1, 1865, subjecting the accused in the former president's murder to stand trial before a military tribunal composed of nine Union officers. While the reasons for turning to a military trial may be many and varied, we have only the written justifications of the attorney general to guide us. Attorney General James Speed issued an official opinion on the validity of a military tribunal as ordered by President Johnson on May 1, 1865.

Speed's lengthy opinion, often rambling far afield, seems at times to attempt to legitimize the tribunal by sheer weight of words. Its essence, however, comes down to two important points: that the offenses that the accused were charged with were offenses against the laws of war, and that the defendents were "billigerents" who served as "secret, but active participants [spies] in the recent hostilities." Thus Speed cast a net about the accused that placed them in an exclusionary category, denying them a trial in the civil court that lacked jurisdiction over such offenses and persons.

In his opinion Speed asserts that "If the question be one concerning the laws of war, he [the accused] should be tried by those engaged in the war - they, and only they, are his peers. The military must decide whether the accused is or is not a participant in the hostilities. If he is an active participant in the hostilities, it is the duty of the military to take him a prisoner without warrant or other judicial process, and dispose of him as the laws of war direct." This point, which Speed rather effectively developes in his opinion to Johnson is not dismissed lightly. Some historians express the view that the hysteria of the times equated participation in the rebellion with participation in the assassination. While the observation may have some basis in fact, it should not cloud Speed's position that the accused assassins were Confederate agents (belligerents) and therefore legally triable before a military tribunal. The distinction is important.

Despite the feeling by some that the Attorney General was not guided by constitutional law in his opinion regarding the military tribunal, Speed was cognizant of the constitutional provisions that later came to haunt members of the commission and its advocates. Speed, in his opinion, readily acknowledges the existence of the civil courts within the District of Columbia and their jurisdiction under normal circumstances, but dismisses their right to try the accused conspirators. Speed writes: "The fact that the civil courts are open does not effect the right of the military tribunal to hold [the accused] as a prisoner and to try. The civil courts have no more right to prevent the military, in time of war than they have a right to interfer with or prevent a battle."

The government maintained that the Commander-in-Chief of the armed forces of the nation had been murdered by enemy agents within a military zone that had been subjected to invasion by hostile forces at a time when martial law existed, and asserted that martial law supercedes civil law in every instance. The defense countered by challenging the legality of the military commission as a court in what was purely a civil matter. The accused were civilians (not enemy belligerents) charged with what should be a civil offense, conspiracy to murder, and therefore, should be tried in the civil court of the District of Columbia, which were open and functioning without any difficulty. The defense further maintained that the need or justification for martial law ended with the surrender of Lee on April 9, 1865.

The question of its legal jurisdiction was held to be without merit by the commission and the trial proceeded over the protests of the defense. But the question of jurisdiction was to rise again, not once but several times, over the next eighty years, and the first hard test arose scarcely a year after the 1865 conspiracy trial in the famous case known as Ex Parte Milligan.

Lambdin P. Milligan, a long-time resident of Indiana and a citizen of the United States, had been actively engaged in a series of overt acts in opposition to the Federal government's prosecution of the war, playing a major role in organizing a chapter of the Order of the Sons of Liberty in 1863 within Indiana. This group had as one of its objectives the forced take-over of certain government arsenals in the Midwest together with the liberation of thousands of Confederate prisoners of war from various camps. This elaborate scheme by Milligan and his collaborators was no amateurish operation, and disasterous probabilities of this internal threat to the Union were promptly reconized. Unfortunately for Milligan and his co-conspirators, Federal agents had successfully infiltrated the organization and carefully monitored it activities. In May of 1864, Major General Alvin P. Hovey, who commanded the military district encompassing Indiana, ordered the arrest of Milligan and several of his supporters. Milligan was tried before a military commission in Indianapolis, found guilty on all counts, and was sentenced to death by hanging.

Milligan, an accomplished lawyer who had been admitted to the bar with Edwin M. Stanton, petitioned the United States Circuit Court for Indiana on a writ of habeas corpus. Milligan's plea was based on his belief that he had been tried and sentenced by a military commission that lacked jurisdiction. The court that received Milligan's petition consisted of Supreme Court Justice David Davis who was sitting as a circuit court judge during the Supreme Court recess, and judge David McDonald. Davis was strongly opposed to both the death penalty and the use of military commissions to try civilians during wartime, and these feelings were well known by those who had followed his career. Davis apparently felt that the military who were holding Milligan would ignore the court's ruling and proceed to execute him under "presidential authority," so he shrewdly persuaded Judge McDonald to "oppose" him in their ruling to take advantage of a procedure whereby, if two judges of a circuit court are opposed on a question of law, they could take the question to the Supreme Court for an answer. Davis then importuned Governor Morton of Indiana to persuade President Johnson to commute Milligan's sentence to life imprisonment, thereby allowing a resolution of the issur befopre the court when would not have been permissible if Milligan were executed. On March 6, 1866, the petition came before the Supreme Court in its spring session.

Three questions were posed to the court on which Davis and McDonald said they, between themselves, were opposed: