The Judicial Murder of Mary E. Surratt Part 9

On the 21st day of October, 1864--while the war was still raging--Lambdin P. Milligan, a citizen of the United States and a resident of Indiana, was arraigned before a Military Commission convened by the commanding General of that Military District, at Indianapolis, on the following charges preferred against him by Henry L. Burnett, Judge-Advocate of the Department of the West:

1. Conspiracy against the Government of the United States.

2. Affording aid and comfort to the rebels.

3. Inciting insurrection.

4. Disloyal practices.

5. Violation of the laws of war.

There were also specifications, the substance of which was that Milligan had joined and aided a secret society, known as the Order of American Knights or Sons of Liberty, for the purpose of overthrowing the Government and authorities of the United States; had communicated with the enemy; conspired to seize munitions of war in the a.r.s.enals, and to liberate prisoners; resisted and encouraged resistance to the draft: at or near Indianapolis, in Indiana, "a State within the military lines of the Army of the United States, and the theatre of military operations, and which had been and was constantly threatened to be invaded by the enemy."

On these charges and specifications, Milligan was subjected to a lengthy trial by this Military Commission which finally found him guilty on all the charges and sentenced him to be hanged. The record was approved by the Commanding General, and then transmitted to President Lincoln, who held it long under advis.e.m.e.nt, and was so holding it when he was killed. His successor, at about the same time that he summoned the Commission to try Mrs. Surratt, at length approved the findings and ordered the sentence to be executed on Friday, the 19th day of May, 1865.

But this object-lesson to the Commission sitting at that date in the old Penitentiary was intercepted. On the 10th of May, Milligan brought the record before the United States Circuit Court by a pet.i.tion for his discharge, and, the two judges differing upon the main question of the jurisdiction of the Commission, the cause was certified under the statute to the Supreme Court of the United States; in deference to which action the President suspended the execution. The argument before that high tribunal coming on in the winter of 1865-66, a great array of counsel appeared upon both sides; David D. Field, James A. Garfield and Jeremiah S. Black for the prisoner, and Attorney-General Speed and Benjamin F.

Butler for the United States. The counsel for the Government followed the same line as did Judge Bingham in his argument on the "Conspiracy Trial;"

the counsel for the prisoner on their side, only enlarging, emphasizing and enforcing the argument of Reverdy Johnson. At the close of the term the Court unanimously decided that the Military Commission had no jurisdiction to try Milligan; that its verdict and sentence were void; and ordered the defendant discharged.

At the next term, the Court handed down two opinions--one the opinion of the Court, read by Judge Davis, in which four of his colleagues concurred, and one by Chief-Justice Chase, in which three of his colleagues concurred. The two opinions agreed that, as matter of law, the President could not of his own motion authorize such a Commission, and that, as matter of fact, the Congress had not authorized such a Commission; and therefore they were at one in their conclusion. But they differed in this; that, whereas the majority of the Court held that not even the Congress could authorize such a Court, the minority, while agreeing that the Congress had not exercised such a power, were of opinion that such a power was lodged in that branch of the Government.

The attempt has often been made to distinguish the case of Mrs. Surratt from that of Milligan by alleging that Was.h.i.+ngton at the time of the a.s.sa.s.sination was within the theatre of military operations, and actually under martial law, whereas Indiana at the time of the Commission of Milligan's alleged offenses was not.

Now, it must be admitted that at the time of the murder of President Lincoln the war had swept far away from the vicinity of the Capital.

There had been no Confederate troops near it since Early's raid in the summer of 1864, and no enemy even in the Shenandoah Valley since October.

It must also be admitted, and was, in fact, proved on the trial, that the civil courts were open and in full and un.o.bstructed discharge of their functions. As for the reiterated affirmation of Judge Bingham that the courts were only kept open by the protection of the bayonet; that is precisely what was affirmed by General Butler, in his argument before the Supreme Court, to have been the fact in Indiana.

None of the counsel in the Milligan case claimed that a Military Commission could possibly have jurisdiction to try a simple citizen in a State where there was no war or rumors of war.

"We do fully agree, that if at the time of these occurrences there were no military operations in Indiana, if there was no army there, if there was no necessity of armed forces there, * * * then this Commission had no jurisdiction to deal with the relator, and the question proposed may as well at once be answered in the negative."

They contended, as the very basis of their case, that the acts of Milligan "took place in the theatre of military operations, within the lines of the army, in a State which had been, and then was constantly threatened with invasion."

And, in fact, the record in so many words so stated, and the statement was uncontroverted by the relator.

General Butler with great earnestness put the question:

"If the Court takes judicial notice that the courts are open, must it not also take judicial notice how, and by whose protection, and by whose permission they were so open? that they were open because the strong arm of the military upheld them; because by that power these Sons of Liberty and Knights of the American Circle, who would have driven them away, were arrested, tried and punished.

"If the soldiery of the United States, by their arms, had not held the State from intestine domestic foes within, and the attacks of traitors without; had not kept the ten thousand rebel prisoners of war confined in the neighborhood from being released by these Knights and men of the Order of the Sons of Liberty; there would have been no courts in Indiana, no place in which the Circuit Judge of the United States could sit in peace to administer the laws."

Moreover, the opinion of the minority Judges bases their contention that Congress had the power, if it had chosen to exercise it, to authorize such a Military Commission, upon this very fact.

"In Indiana, for example, at the time of the arrest of Milligan and his co conspirators, it is established by the papers in the record, that the State was a military district; was the theatre of military operations, had been actually invaded, and was constantly threatened with invasion. It appears, also, that a powerful secret a.s.sociation, composed of citizens and others, existed within the State, under military organization, conspiring against the draft, and plotting insurrection, the liberation of the prisoners of war at various depots, the seizure of the State and national a.r.s.enals, armed co-operation with the enemy, and war against the national government."

Not one of which circ.u.mstances (except that it was a military district) can be truthfully predicated of the District of Columbia at the time of the a.s.sa.s.sination.

As for actual martial law, there was no declaration of martial law claimed for the City of Was.h.i.+ngton, other than the proclamation of the President which applied as well to Indiana, and, indeed, to the whole North.

We are justified, therefore, in saying, that the Supreme Court of the United States, in this case of Milligan, p.r.o.nounced the final condemnation of the whole proceedings of the Military Commission which tried and condemned Mary E. Surratt; declaring, with all the solemn force of a determination of the highest judicial tribunal known to this nation, that every one of its acts, from its creation by the President to its transmission of its record of doom to the President, was in direct contravention of the Const.i.tution of the United States and absolutely null and void.

That ill.u.s.trious Court, speaking by Judge David Davis, thus enunciates the law:

"The Const.i.tution of the United States is a law for rulers and people, equally in war and in peace, and covers with the s.h.i.+eld of its protection all cla.s.ses of men, at all times, and under all circ.u.mstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.

Such a doctrine leads directly to anarchy or despotism."

"From what source did the Military Commission * * derive their authority?"

"It is not pretended that the commission was a court ordained or established by Congress."

"They cannot justify on the mandate of the President; because he is controlled by law and has his appropriate sphere of duty, which is to execute not to make the law; and there is no unwritten criminal code to which resort may be had as a source of jurisdiction."

"The laws and usages of war can never be applied to citizens in states which have upheld the authority of the government and where the courts are open and their processes un.o.bstructed. And no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life, in nowise connected with the military service. Congress could grant no such power; and to the honor of our national legislature be it said it has never been provoked by the state of the country even to attempt its exercise."

"All other persons," (_i. e._, all other than those in the military and naval service) "citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of state or political necessity."

"It is claimed that martial law covers with its broad mantle the proceedings of this Military Commission."

"Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration."

"Martial law can never exist where the courts are open, and in the proper and unmolested exercise of their jurisdiction. It is also confined to the locality of actual war."

Had the swift process by which this unfortunate woman was hurried to the scaffold been interrupted by a stay to allow a review by the same high tribunal which rescued Milligan from the jaws of death, it cannot be doubted that in her case, as in his, the same conclusions would have been reached, viz.:

1st. "One of the plainest const.i.tutional provisions was, therefore, infringed when" (Mary E. Surratt) "was tried by a court not ordained and established by Congress, and not composed of judges appointed during good behavior."

2nd. "Another guarantee of freedom was broken when" (Mary E. Surratt) "was denied a trial by jury;"

that, in her case, as in his, the Court would have set the prisoner free; there would have been no hanging, no felon's grave, and not even an ulterior attempt at a const.i.tutional trial.

For it is remarkable that although the Military tribunal which tried Milligan p.r.o.nounced him guilty of crimes deserving a traitor's death; the seeming strength of the evidence must have melted away, strangely enough, when subjected to the prospective investigation of const.i.tutional courts, as there was not even a subsequent effort on the part of the Government to call him to account.

Let us add, as a final corollary to this exposition of the Const.i.tution by the Supreme Court, the following remark: that the ground and argument employed by Attorney General Speed in his opinion upon the right of the President to order the trial of the alleged a.s.sa.s.sins by Military Commission, and by Judge-Advocate Bingham in his address to that Commission, involve a _reductio ad absurdum_, or, rather, a _reductio ad monstrosum_, that is, a _Reductio ad absurdum quia monstrosum_.

For, that ground and that argument, invoked to uphold and sanction the trial of civilians by military commissions, necessarily and inevitably go farther, and proclaim the right of President Johnson, alone, of his own motion and without the interposition of a formal court, whether military commission or drum-head court-martial, to have commanded the immediate execution of every person whom he might believe to be guilty of partic.i.p.ation in the a.s.sa.s.sination of his predecessor or in the presumed attempt upon himself.

The conclusion forced upon us, therefore,--the one only thing to be said--is, that the hanging of Mary E. Surratt was nothing less than the crime of murder.

Murder, not only in the case of the private soldiers who dragged her to the scaffold and put the rope about her neck; they, at least can plead the almost irresistible force of military discipline.

But murder, also, in the case of the Major-General whose sword gave the signal for the drop to fall. General and soldiers are in the precise position, before the law, of a mob of Lynchers carrying out the judgment of a Lynch court.

Murder, not only in the case of the one military officer who superintended the details of the execution. He, too, though with much less force, can plead that he was the mere bailiff of what he believed to be a competent Court.

But murder, also, on the part of the nine military officers and the three advocates who tried and sentenced this woman to death. These men, in the forum of the law, stand in the precise position of any nine policemen steered by any three police attorneys in the city of New York, who should dare to try, convict and sentence to death a citizen of that city.

Murder, not only on the part of the Commission and its lawyers; they too might, possibly, plead--though with still diminis.h.i.+ng force--that, although they were warned and took the awful responsibility, still they believed in their competency.