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wpbinzel · 01-18-2019, 09:41 PM

(01-18-2019 02:54 PM)mike86002000 Wrote:
(01-15-2019 12:32 PM)mike86002000 Wrote:
(01-13-2019 04:59 PM)wpbinzel Wrote: Hello, Another Mike. Welcome to the forum.
I know a little bit about the law and Ex Parte Milligan. See the March 2018 issue of the Columbia Law Review.

Mr. Binzel,
I'm in the process of reading the article you mentioned. Thanks for bringing it up. It is in Vol. 118, Issue 2, titled: "The Law (?) Of The Lincoln Assassination", by Martin Lederman. I'm becoming a fan of his. I see you and Laurie Verge are mentioned in the acknowledgements. You should be proud.
I had problems accessing the article using the URL Laurie provided, probably because of my browser, and found it on "myjstor" @:
https://www.jstor.org/stable/26371823?se...b_contents . Other folks may find it useful to do the same. Free membership requires only a user name and password. You can come and go on the article as you please. It's about 168 pages long but there is an abstract and an excellent table of contents that would let one "cherry pick".
The article supports Ex Patre Milligan in the strongest terms, and considers military trials of civilians an aberration. The author is concerned about the recent invocation of these few trials as precedent, supporting the legitimacy of more of them, the opinions of Brett Kavanaugh and Donald Trump not with standing.
Mike

I've finished a first reading of the Columbia Law Review article, on line. It took a snow storm, two pots of bean soup, and several hours.
I've ordered a paper copy of that issue of the law review, which I can copy, (for my own use), high light, and mark up. A serious student of the subject may want to do the same. I checked with the law review, it's in stock and the price remains $20. (They require a check, no credit cards.) That includes Fed Ex shipping. They need a physical address, not just a PO box, and a phone #.
https://columbialawreview.org/back-issues/ .

It's an especially fine article.

Mike

Thank you, Mike. Allow me to return the compliment to you on your efforts to tackle Martin Lederman's missive. I believe your summation of the article and the author's concerns are on the mark.

I have great respect for Marty and his scholarship; however, I do not agree with his conclusion. The principle source of our disagreement is his basic premise, which he states on page 329: "As dramatic and consequential as the assassination may have been, however, it was also—both in form and as a matter of law—a standard-issue homicide, of the sort the criminal justice system routinely handled." In my view, his premise dictated his conclusion. If you begin with the premise that the Lincoln assassination conspiracy was "a standard-issue homicide" (which I read as “civilian”), then I readily grant you that Milligan will lead you to conclude that the conspirators should have been tried in a civilian court.

In my view, the premise is flawed. In April 1865, Abraham Lincoln was not just another “civilian.” He was the President and Commander-in-Chief of the military in the time of war. The Union government believed that the conspirators acted in conjunction with the enemy, as Judge Boynton phrased it in Ex parte Mudd, “to impair the effectiveness of military operations.” Booth himself said much the same thing, writing: (1) "But our cause [the Confederacy's war for independence] being almost lost, something decisive & great must be done."; and (2) “I hoped for no gain. I knew no private wrong. I struck for my country [the Confederate States of America] and that alone.” Reasonable people can (and do) fairly debate whether, in the course of the trial, the Government adequately linked the conspirators with the Confederate government and whether it established that the conspiracy was a “military offence.” In 1865, the argument against the use of a military commission to try the conspirators was raised and rejected. It was raised again in federal court in 1868, two years after Milligan, and was again rejected in a ruling that has never been overturned. I am somewhat skeptical of the argument that it would not stand in a case today because the same facts and circumstances do not exist . At best, I find it to be a matter of supposition and conjecture to apply 21st century legal theory to a mid-19th century proceeding. Historical events are better understood when viewed in the time and context in which they occurred, as best we can ascertain it.

However, if we are going to use the benefit of 21st century knowledge, I would suggest that – thanks to the work of people such as General Tidwell, Messrs. Hall and Gaddy, Ed Steers, Laurie Verge, Bill Richter, John Fazio, and many others – the Government got it right. I believe that there is sufficient evidence to support the conclusion that Booth, et al., Thomas Harney, and others targeted Lincoln and other Union officials as a military objective.

And that seems to be the crux of the matter. If you don’t see a connection between Booth and the Confederate government, then you are likely to be in the camp for a civilian trial. Conversely, the more you see of the connection, the more you are likely to side with the use of a military commission. Not everyone views history through the same lense, and that’s OK – and that is why I am very grateful to Roger for having a forum where we can have this kind of discussion.