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.
