Trial By Military Commission First Mentioned

[John Fazio]

(03-03-2016 11:00 AM)Dennis Urban Wrote:  The first mention I have seen of the trial of the conspirators by a military commission is in the wanted poster issued by the War Department on April 20, 1865. Stanton's insistence on severe retribution for the conspirators is well known and he put it in writing on that date. I presume the wording on the poster is his and he states, "accomplices in the murder of the President and the attempted assassination of the Secretary of State, and shall be subject to trial before a military commission and the punishment of death." The legal challenge to trial by military commission was to come on the first day of the trial. However, this proclamation by Stanton of the preordained trial method and punishment is astounding when one realizes that not all the perps had yet been apprehended. This really speaks to the tenor of the times. I wonder if anything was written earlier than this wanted poster about the trial method.

Dennis:

The poster tells us that Stanton had his mind made up very soon after the assassination as to who was going to control the trial, i.e. the War Department, which is to say, him. He wasn't about to let any of the conspirators slip their traces on legal technicalities such as frequently obtain in trials in the civil courts. He probably knew that President Johnson and Attorney General Speed would support him. He did not have to wait long to find out. His control even extended to determining the place of incarceration for the four conspirators who were sentenced to imprisonment rather than death. I know of nothing written prior to the poster as to how the prisoners were to be tried. In any case, a military trial was the right decision and its legality has been sustained. Ex Parte Milligan, which seemed to question its legality, is distinguishable. So found a United States Court of Appeals in Florida a few years later.

John