Trial By Military Commission First Mentioned

[John Fazio]

(03-06-2016 07:44 PM)Dennis Urban Wrote:  

(03-06-2016 01:26 AM)John Fazio Wrote:  

(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

I agree with your analysis and such pre-determination and pre-judgement certainly fits Stanton's personality throughout his time in the Lincoln cabinet. I agree the military trial was the correct course. It's much easier to achieve the success you desire when you are out ahead of the curve as Stanton was. He certainly had the outcomes determined and I believe he wished he could have hung others as well. I'll never understand why others who aided and abetted were allowed to walk free. Perhaps Stanton's blood lust was satisfied but I doubt it.

Dennis:

I believe I understand why so many suspects were permitted to walk. There were a lot of factors involved. Probably the most important was the fact that the trial of the conspirators, from early May to late June, 1865, was a terrible ordeal. There were about 370 witnesses, most of the testimony was tedious and boring and the heat was stifling. By the end, everyone was wilting and only too happy to be done with it. At that point, the thought of another such trial, and perhaps another and another, etc., was absolutely anathema to everyone concerned: Stanton, the War Department, the Prosecution (the Judge Advocates General), the Military Commissioners and the defense counsel. The wad was shot. Furthermore, the case against the biggest fish, i.e. the Confederate leadership, principally Davis, collapsed when the planted perjury of Montgomery, Dunham and Merritt was exposed. Neither Stanton, Holt, Bingham, Burnett, nor anyone else on their side had any interest in prosecuting those whom they considered to be minnows, compared to the sharks against whom they could no longer maintain a case. And still further, there was a general absence of proof against many of the suspects, e.g. B. F. Ficklin, Preston Parr and his wife, Sarah Slater, Augustus Howell, et al. And still further, a lot of the suspects, who were almost certainly complicit, fled the country, e.g. B. F. Stringfellow, Thomas Harbin, Judah Benjamin, John Breckenridge, et al. And still further, some big fish were already out of the country at the time of the assassination, namely Fernando Wood, Mayor of New York; General George McClellan; and August Belmont, the New York millionaire who headed a circle of Copperheads. And still further, by the end of the trial, Lincoln had been dead for two and a half months, the shock was beginning to fade and there was therefore a sense that the country needed to move on and address other pressing issues, such as Reconstruction, rather than belabor the business of prosecution of additional malefactors. Booth was dead. The most obviously guilty had been tried and convicted, four had been hanged and the other four were out of sight, out of mind. It was enough. (Too bad that the perfectly innocent Spangler was swept up in the whirlwind.) Recall that Thomas A. Jones, head of the Confederate Secret Service in Maryland, later wrote that he was surprised that the Federal government stopped where it did in the prosecution of Lincoln's murderers. We can say, as a general statement, that conspirators count on the fading of the object of their conspiracy in the public mind and in the minds of law enforcers.

John