Friday, April 24, 2015

May 1, 1865---Requiem For A President: Abraham Lincoln's Chicago Funeral



MAY 1, 1865:              

“Love is a rare attribute in the chief magistrate of a great people” --- Reverend P.D. Day



I


The U.S. Government establishes a Military Tribunal (the Hunter Commission) to try the accused conspirators in President Lincoln’s assassination. Although Civil Libertarians object, the newspapers question whether the United States is a military dictatorship, and leading jurists question its Constitutionality, most (northern) citizens are disinterested in such legal blather. They simply want to miscreants to hang. 




President Johnson’s Executive Order and (excerpts from) Attorney General James Speed’s carefully crafted (oddly postdated), tautological, and torturously reasoned justification appear below:



Order of the President

PROCEEDINGS OF A MILITARY COMMISSION,

Convened at Washington, D.C., by virtue of the following Orders:

{Executive Chamber Washington City, May 1, 1865.}



 WHEREAS, the Attorney-General of the United States hath given his opinion:


That the persons implicated in the murder of the late President, Abraham Lincoln, and the attempted assassination of the Honorable William H. Seward, Secretary of State, and in an alleged conspiracy to assassinate other officers of the Federal Government at Washington City, and their aiders and abettors, are subject to the jurisdiction of, and lawfully triable before, a Military Commission;


 It is ordered:  


1st  That the Assistant Adjutant-General detail nine competent military officers to serve as a Commission for the trail of said parties, and that the Judge Advocate General proceed to prefer charges against said parties for their alleged offenses, and bring them to trial before said Military Commission; that said trial or trials be conducted by the said Judge Advocate General, and as recorder thereof, in person, aided by such Assistant and Special Judge Advocates as he may designate; and that said trials be conducted with all diligence consistent with the ends of justice:  the said Commission to sit without regard to hours.


 2d.  That Brevet Major-General Hartranft be assigned to duty as Special Provost Marshal General, for the purpose of said trial, and attendance upon said Commission, and the execution of its mandates.


 3d.  That the said Commission establish such order or rules of proceedings as may avoid unnecessary delay, and conduce to the ends of public justice.


[Signed]


ANDREW JOHNSON



***


OPINION ON THE CONSTITUTIONAL POWER OF THE MILITARY

TO TRY AND EXECUTE THE ASSASSINS OF THE PRESIDENT.

BY ATTORNEY GENERAL JAMES SPEED.

ATTORNEY GENERAL'S OFFICE

Washington, July — , 1865.


SIR: You ask me whether the persons charged with the offense of having assassinated the President can be tried before a military tribunal, or must they be tried before a civil court. The President was assassinated at a theater in the city of Washington. At the time of the assassination a civil war as flagrant, the city of Washington was defended by fortifications regularly and constantly manned, the principal police of the city was by Federal soldiers, the public offices and property in the city were all guarded by soldiers, and the President's House and person were, or should have been, under the guard of soldiers. Martial law had been declared in the District of Columbia . . . 


Such being the facts, the question is one of great importance— important, because it involves the constitutional guarantees thrown about the rights of the citizen, and because the security of the army and the government in time of war is involved; important, as it involves a seeming conflict between the laws of peace and of war.


Having given the question propounded the patient and earnest consideration its magnitude and importance require, I will proceed to give the reasons why I am of the opinion that the conspirators not only may but ought to be tried by a military tribunal.


A civil court of the United States is created by a law of Congress, under and according to the Constitution . . . A military tribunal exists under and according to the Constitution in time of war. Congress may prescribe how all such tribunals are to be constituted . . . Should Congress fail to create such tribunals, then, under the Constitution, they must be constituted according to the laws and usages of civilized warfare . . .  I do not think that Congress can, in time of war or peace . . . create military tribunals for the adjudication of offenses committed by persons not engaged in [warfare] . . . But it does not follow that because such military tribunals can not be created by Congress . . . that they can not be created at all . . .  


That the law of nations constitutes a part of the laws of the land, must be admitted. The laws of nations are expressly made laws of the land by the Constitution, when it says that "Congress shall have power to define and punish piracies and felonies committed on the high seas and offenses against the laws of nations." . . . No one that has ever glanced at the many treatises that have been published in different ages of the world by great, good and learned men, can fail to know that the laws of war constitute a part of the law of nations, and that those laws have been prescribed with tolerable accuracy.

Congress can declare war. When war is declared, it must be, under the Constitution . . . 


. . . The legitimate use of the great power of war, or rather the prohibitions against the use of that power, increase or diminish as the necessity of the case demands. When a city is besieged and hard pressed, the commander may exert an authority over the non-combatants which he may not when no enemy is near. 


All wars against a domestic enemy or to repel invasions, are prosecuted to preserve the Government . . . Because of the utter inability to keep the peace and maintain order by the customary officers and agencies in time of peace, armies are organized and put into the field . . . 


[E]nemies with which an army has to deal are of two classes:


1. Open, active participants in hostilities, as soldiers who wear the uniform, move under the flag, and hold the appropriate commission from their government. Openly assuming to discharge the duties and meet the responsibilities and dangers of soldiers, they are entitled to all belligerent rights, and should receive all the courtesies due to soldiers. The true soldier is proud to acknowledge and respect those rights, and every cheerfully extends those courtesies.


2. Secret, but active participants, as spies, brigands, bushwackers, jayhawkers, war rebels and assassins . . . When lawless wretches become so impudent and powerful as to not be controlled and governed . . . armies are called out, and the laws of war invoked. Wars never have been and never can be conducted upon the principle that an army is but a posse comitatus of a civil magistrate.


The Romans regarded ambassadors betwixt belligerents as persons to be treated with consideration, and respect. Plutarch, in his Life of Caesar, tells us that the barbarians in Gaul having sent some ambassadors to Caesar, he detained them, charging fraudulent practices, and led his army to battle, obtaining a great victory.


When the Senate decreed festivals and sacrifices for the victory, Cato declared it to be his opinion that Caesar ought to be given into the hands of the barbarians, that so the guilt which this breach of faith might otherwise bring upon the State might be expiated by transferring the curse on him who was the occasion of it.


Under the Constitution and laws of the United States, should a commander be guilty of such a flagrant breach of law as Cato charged upon Caesar, he would not be delivered to the enemy, but would be punished after a military trial . . .  


. . . The laws and usages of war contemplate that soldiers have a high sense of personal honor. The true soldier is proud to feel and know that his enemy possesses personal honor . . . Justice and fairness say that an open enemy to whom dishonorable conduct is imputed, has a right to demand a trial . . .  


It is manifest . . . that military tribunals exist under and according to the laws and usages of war, in the interest of justice and mercy. They are established to save human life, and to prevent cruelty as far as possible . . .


Having seen that there must be military tribunals to decide questions arising in time of war betwixt belligerents who are open and active enemies, let us next see whether the laws of war do not authorize such tribunals to determine the fate of those who are active, but secret, participants in the hostilities . . .

Cicero tells us in his offices, that by the Roman feudal law no person could lawfully engage in battle with the public enemy without being regularly enrolled, and taking the military oath. This was a regulation sanctioned both by policy and religion. The horrors of war would indeed be greatly aggravated, if every individual of the belligerent States were allowed to plunder and slay indiscriminately the enemy's subjects, without being in any manner accountable for his conduct . . . 


. . . These banditti that spring up in time of war are respecters of no law, human or divine, of peace or of war, are hotes humani generis, and may be hunted down like wolves . . . But they are occasionally made prisoners. Being prisoners, what is to be done with them? If they are public enemies, assuming and exercising the right to kill, and are not regularly authorized to do so, they must be apprehended and dealt with by the military. No man can doubt the right and duty of the military to make prisoners of them, and being public enemies, it is the duty of the military to punish them for any infraction of the laws of war. But the military can not ascertain whether they are guilty or not without the aid of a military tribunal . . . 


 . . . But it may be insisted that though the laws of war, being a part of the law of nations, constitute a part of the laws of the land, that those laws must be regarded as modified so far, and whenever they come in direct conflict with plain constitutional provisions[:]


"The trial of all crimes, except in cases of impeachment, shall be by the jury; and such trial shall be held in the State where the said crime shall have been committed; but when not committed within any State, the trial shall be at such or places as the Congress may by law have directed." (Art. III of the original Constitution, sec. 2.)


"No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, nor shall be compelled, in any criminal case, to be witness against himself, nor be deprived of life, liberty or property, without  due process of law; nor shall private property be taken for public use without just compensation." (Amendments to the Constitution, Art. V.)


"In all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and be informed of the nature and cause of the accusation; to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense." (Art. VI of the amendments to the Constitution.)


These provisions of the Constitution are intended to fling around the life, liberty and property of a citizen all the guarantees of a jury trial. These constitutional guarantees can not be estimated too highly, or protected too sacredly . . .  


Nevertheless, these exalted and sacred provisions of the Constitution must not be read alone and by themselves, but must be read and taken in connexion with other provisions [viz., regarding the law of nations and the laws of war] . . . to act as a spy is an offense against the laws of war, and the punishment for which in all ages has been death, and yet it is not a crime; to violate a flag of truce is an offense against the laws of war, and yet not a crime of which a civil court can take cognizance; to unite with banditti, jayhawkers, guerrillas or any other unauthorized marauders is a high offense against the laws of war; the offense is complete when the band is organized or joined. The atrocities committed by such a band do not constitute the offense, but make the reasons, and sufficient reasons they are, why such banditti are denounced by the laws of war. Some of the offenses against the laws of war are crimes, and some not. Because they are crimes they do not cease to be offenses against those laws; nor because they are not crimes or misdemeanors do they fail to be offenses against the laws of war. Murder is a crime, and the murderer, as such, must be proceeded against in the form and manner prescribed in the Constitution; in committing the murder an offense may also have been committed against the laws of war; for that offense he must answer to the laws of war, and the tribunals legalized by that law. 


There is, then, an apparent but no real conflict in the constitutional provisions. Offenses against the law must be dealt with and punished under the Constitution, as the laws of war, they being part of the law of nations; crimes must be dealt with and punished as the Constitution and laws made in pursuance thereof, may direct . . .


The fact that the civil courts are open does not affect the right of the military tribunal to hold as a prisoner and to try. The civil courts have no more right to prevent the military, in time of war, from trying an offender against the laws of war than they have a right to interfere with and prevent a battle . . .


My conclusion, therefore, is, that if the persons who are charged with the assassination of the President committed the deed as public enemies, as I believe they did, and whether they did or not is a question to be decided by the tribunal before which they are tried, they not only can, but ought to be tried before a military tribunal. If the persons charged have offended against the laws of war, it would be as palpably wrong of the military to hand them over to the civil courts, as it would be wrong in a civil court to convict a man of murder who had, in time of war, killed another in battle.


I am, sir, most respectfully, your obedient servant,


JAMES SPEED.

Attorney General.

To the President





II



An impromptu funeral service and viewing was held in the town of Michigan City, Indiana during an 8:00 A.M. unscheduled stop of the Presidential Funeral Train. The townspeople, who had previously scheduled a funeral in absentia, managed to use the 35-minute layover to best advantage to honor their fallen leader.   



Just an hour after leaving Michigan City, the Lincoln Funeral Train reached Chicago.


Lincoln had been intimately connected with Chicago for the bulk of his legal career and his political career.  America’s Second City (and the first city of Illinois, which had been Lincoln’s home since 1830), held a massive funeral for the man who had been nominated as President there in 1860.  

 

Rather than create chaos at the main depot (which was and is the major rail hub for the entire Midwest) a special receiving trestle was built out over Lake Michigan to hold the Funeral Train.  



The catafalque provided by Chicago was a massive gothic construction that cost the city more than $15,000.00 (this did not include the cost of the funeral service and procession).  It flew a banner reading, THE HEAVENS ARE DRAPED IN BLACK.  So was the city, in almost complete entirety.



Some 300,000 mourners (equal to the entire population of Chicago at the time) participated in the event. 



10,000 schoolchildren marched along with their teachers. At least 5,000 soldiers marched in ordered ranks, followed by city employees, business leaders, and a mass of ordinary and everyday human beings. The city’s church bells rang, cannons were fired, and brass bands played. The pall-bearers were Lincoln’s own friends.


While the procession was not as lengthy as the ones in New York and Washington, reviewing stands along the route groaned under the weight of observers. Many people climbed trees for a better view. Several toppled from the weight of climbers.  


President Lincoln’s body was laid in state in the Old Cook County Courthouse; he remained there for 27 hours. Some 250,000 mourners viewed the body --- again, nearly equal to the entire population of Chicago.  




For the first time since the assassination, news editors and commentators began to publicly criticize the seemingly endless cycle of funerary rituals. By the First of May the preserved corpse was being described as having “sunken, shrunken features.” Viewers noted that Lincoln’s face was progressively “growing . . . darker” (it would eventually turn an iconic bronze due to his wounds).  


Particularly in the South, editors blamed Northern “morbid curiosity” for the President’s still being above ground, by way of an acceptable mocking of the Yankees.    


Northern editors accused Edwin Stanton of “desecrating [Lincoln’s] remains” by “making a show of all that was mortal of a fellow-man.”


But many Americans, belatedly, realized that with the loss of Lincoln --- a truly remarkable man --- that the course of human events had been altered irrevocably, and they grasped at what little they understood of him by way of honoring him.





III


The first Memorial Day celebration was held in Charleston, South Carolina by former slaves. The newly freed chose to honor 257 dead Union soldiers who had been hastily buried in a mass grave on the grounds of a former Confederate prison camp. The Freedmen dug up the bodies beginning on April 16th. They worked for two weeks nonstop in order to give the dead a proper burial as a mark of gratitude for their role in the fight for freedom. On this day, the African-American community of Charleston held a parade in which 10,000 people participated, including 2,800 children. Flowers were laid on the new graves in accordance with the new custom being observed in connection with President Lincoln’s funeral services. 




  

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