The Flimsy Case Against Mary Surratt

[mike86002000]

Bill Binzel wrote, quoting Judge Boynton:
“The decisions of the Supreme Court are binding on the inferior courts; and no decision was ever more willingly followed than would be the decision and the ruling of the majority of the Supreme Court in Milligen’s [sic] case by this Court in any case where that decision was on point. … But I do not think that ex parte Milligen [sic] is a case in point here [i.e., the facts of Ex parte Milligan, are not applicable to the Lincoln assassination conspirators because they were not “civilians”]. … The President was assassinated not from private animosity, nor any other reason than a desire to impair the effectiveness of military operations…. It was not Mr. Lincoln who was assassinated, but the Commander-in-Chief of the army for military reasons [i.e., the Lincoln assassination conspirators were, in modern terminology “enemy combatants”]. I find no difficulty therefore, in classing the offence as a military one, and with this opinion arrive at the necessary conclusion that the proper tribunal for the trial of those engaged in it was a military one.”
-- Ex parte Mudd, 17 F. Cas. 954 (S.D. Fla. 1868)

PS - I am familiar with what Marty Lederman wrote on page 454, but it does not change the fact that Mudd still stands as the final ruling on the Constitutionality of the use of a military commission to try the Lincoln assassination conspirators. One may be of the opinion that Judge Boynton's ruling is incorrect, but that is all it is -- an opinion, and is not a matter of fact or law.

(end of my quotation of Bill)

The ruling in "Milligan" was unanimous, not just a "majority", as Boynton says. Apparently he read the case, even though he had trouble spelling it, (not having the benefit of "spellcheck"). He was either blissfully unaware of, or chose to ignore, the history of the actual charges against Mr. Milligan and his codefendants. They were alleged to have established a secret organization that planned to liberate Confederate soldiers from Union prisoner-of-war camps in Illinois, Indiana, and Ohio, and then seize an arsenal, provide the freed prisoners with arms, raise an armed force to incite a general insurrection, and join with the Confederates to invade Indiana, Illinois, and Kentucky, and make war on the government of the United States. Certainly, they had "a desire to impair the effectiveness of military operations". Certainly their crimes had a "military reason". These facts didn't prevent the Supreme Court from ruling that Mr. Milligan was entitled to a civilian trial, and that trial and sentencing by a military commission was illegal, since he was a civilian and civilian courts were available. By extension, Ex Parte Milligan should apply to the trial of the Lincoln conspirators , even if they also had "a desire to impair the effectiveness of military operations", and their crimes also had a "military reason" .
It is a fact, that it is my opinion, that it is a fact, that:
The enormity of the murder of my distant cousin, President Abraham Lincoln, and the desire for revenge, is what made the trial of the conspirators by military commission even thinkable, at the time. It doesn't make it defensible today. The conspirators were civilians. Civilian courts were available with, I might add, ample resources to try a murder case. Ex Parte Milligan applies.
I've explained, previously, that Boynton's ruling was appealed to the Supreme Court, who actually started to hear the case, and how that was "headed off" by the pardoning of all the conspirators who still survived. Had the case been heard, by the same justices who determined Ex Parte Milligan, I think the finding would have been easily predicted.
Bill, you state your opinion, that it is a fact, that Boynton's ruling "still stands as the final ruling on the Constitutionality of the use of a military commission to try the Lincoln assassination conspirators". At the moment, it may remain the most recent ruling. I think, it is my opinion, that may change.

Mike

[L Verge]

Mike - Your last sentence is "appealing" (pardon the pun). It's been quite a while now; is there someone in the Mudd family who has decided to move forward with the Free Dr. Mudd rally. If so, what's the tactic this time?

[mike86002000]

(01-21-2019 03:19 PM)L Verge Wrote:  Mike - Your last sentence is "appealing" (pardon the pun). It's been quite a while now; is there someone in the Mudd family who has decided to move forward with the Free Dr. Mudd rally. If so, what's the tactic this time?

I still have my "Free Dr. Mudd" bumper sticker, and I'm a lifetime member of the society, but I haven't been involved at the Dr. Mudd Museum for the last several years. Certainly, I'm not a spokesman for them or the family.
I expect the scandalous trial of the conspirators, along with the odious "Korematsu", and the trial of the German saboteurs, (their trial, execution, and burial, done in secret), to be brought up as "precedent" by our "president", for depriving civilians the right to civilian trials. I don't expect this to go unchallenged by the courts, (Brett Kavanaugh notwithstanding), or Congress. Ex Patre Milligan is bound to come up.

I make no apology for the precident/president pun. Remember his difficulty with the distinction?

Mike

[wpbinzel]

Another Mike - We will have to respectfully agree to disagree.

One correction, though. While the holding of the Supreme Court in Milligan was unanimous, the "ruling" or opinion of the Court was 5 to 4, hence Judge Boynton's reference to the majority and minority opinions. Justice Davis delivered the opinion of the Court and was joined by four other Justices (Clifford, Field, Grier and Nelson). Chief Justice Chase and three other Justices (Wayne, Swayne, and Miller) agreed with the result but filed a separate concurring opinion that was less restrictive than the majority opinion.

[mike86002000]

(01-21-2019 05:04 PM)wpbinzel Wrote:  Another Mike - We will have to respectfully agree to disagree.

One correction, though. While the holding of the Supreme Court in Milligan was unanimous, the "ruling" or opinion of the Court was 5 to 4, hence Judge Boynton's reference to the majority and minority opinions. Justice Davis delivered the opinion of the Court and was joined by four other Justices (Clifford, Field, Grier and Nelson). Chief Justice Chase and three other Justices (Wayne, Swayne, and Miller) agreed with the result but filed a separate concurring opinion that was less restrictive than the majority opinion.

The distinction between a decision and a ruling is a technicality. The decision of the court was unanimous. As I acknowledged above in this thread, four justices thought it necessary to state that that the Congress had the power to pass laws that would make military tribunals legal. They also noted that they had not done so. That's hardly a restriction on the unanimous decision.
Mike

[wpbinzel]

(01-21-2019 06:43 PM)mike86002000 Wrote:  

(01-21-2019 05:04 PM)wpbinzel Wrote:  Another Mike - We will have to respectfully agree to disagree.

One correction, though. While the holding of the Supreme Court in Milligan was unanimous, the "ruling" or opinion of the Court was 5 to 4, hence Judge Boynton's reference to the majority and minority opinions. Justice Davis delivered the opinion of the Court and was joined by four other Justices (Clifford, Field, Grier and Nelson). Chief Justice Chase and three other Justices (Wayne, Swayne, and Miller) agreed with the result but filed a separate concurring opinion that was less restrictive than the majority opinion.

The distinction between a decision and a ruling is a technicality. The decision of the court was unanimous. As I acknowledged above in this thread, four justices thought it necessary to state that that the Congress had the power to pass laws that would make military tribunals legal. They also noted that they had not done so. That's hardly a restriction on the unanimous decision.
Mike

No, it is not just a technicality. The rationale and reasoning behind a court's decision is every bit as important as the result, if not more. In Milligan, there were two opinions, a majority opinion and a minority opinion. Above, where you wrote: "The ruling in "Milligan" was unanimous, not just a "majority", as Boynton says.", you are misconstruing Boynton's reference to the majority opinion.

[mike86002000]

Bill wrote;
No, it is not just a technicality. The rationale and reasoning behind a court's decision is every bit as important as the result, if not more. In Milligan, there were two opinions, a majority opinion and a minority opinion. Above, where you wrote: "The ruling in "Milligan" was unanimous, not just a "majority", as Boynton says.", you are misconstruing Boynton's reference to the majority opinion.
end quote

Is it not true that Ex Parte Milligan was a unanimous decision?
Mike

[wpbinzel]

(01-21-2019 07:48 PM)mike86002000 Wrote:  Bill wrote;
No, it is not just a technicality. The rationale and reasoning behind a court's decision is every bit as important as the result, if not more. In Milligan, there were two opinions, a majority opinion and a minority opinion. Above, where you wrote: "The ruling in "Milligan" was unanimous, not just a "majority", as Boynton says.", you are misconstruing Boynton's reference to the majority opinion.
end quote

Is it not true that Ex patre Milligan was a unanimous decision?
Mike

Because the minority opinion was a concurring opinion and not a dissenting one, yes, Milligan (and, by the way, it is "parte" and not "patre") was a unanimous decision with a majority opinion and a minority opinion. In short, the result of the case was unanimous, but the rationale and reasoning for reaching that result was not.

[Rob Wick]

Quote:From what I’ve seen in this forum, most members of this community are unaware of the degree to which “outside” scholars, i.e., scholars who do not focus on Lincoln’s murder, have rejected and debunked key elements of the War Department’s version.

And that proves what? I have to say that my interest in Lincoln's assassination pretty much ended when I stopped researching about Everton Conger. However, I have researched those "outside" scholars far more than you have (even publishing in peer-reviewed journals on them) and just because a consensus of Lincoln scholars who otherwise glossed over the assassination accepted something doesn't make them correct. Those same scholars found William Herndon's material troublesome and of little value, yet today's scholarship has all but proven them wrong. They refused to believe that Lincoln fell in love with Ann Rutledge, yet they again have been proven wrong.

That most of the mid-20th century Lincoln scholars rejected the radical cause and disliked Stanton proves nothing but that most of the mid-20th century Lincoln scholars rejected the radical cause and disliked Stanton. The most prominent of that class was James Garfield Randall, a Wilsonian Progressive. In a letter to Edgar J. Rich, a prominent Boston attorney and Lincoln student, Randall wrote of Stanton, "His radical intrigues, his conduct as a member of Johnson's cabinet, his methods in connection with the conspiracy trial, his and Holt's harshness toward Mrs. Surratt, his treatment of General Sherman, and many other things in his career are, in my opinion, not very easily susceptible justification. What it boils down to as I see it is this; the fact that Stanton did not do the horrible thing suggested by Eisenschiml does not necessarily imply that he was altogether a statesmen of pure and unblemished record." (James G. Randall to Edgar J. Rich, September 21, 1939, Box 5, James G. Randall Papers, University of Illinois Archives, Urbana-Champaign).

Randall's outsized influence on other Lincoln scholars, as well as the results of their own researches and prejudices, led them to the same conclusion. In the final volume of his eight-volume history of the war, Allan Nevins, another liberal in the John F. Kennedy mold, wrote "The trial of Mrs. Surratt excited especial interest because she stoutly protested her innocence, and bore herself with dignity in the most trying circumstances. A number of witnesses, some of them Catholic clergymen (for she was a Roman Catholic), and including also several colored people of transparent honesty, testified to her character, Cristian piety, and readiness to befriend Union soldiers during the war. She had clearly been a Confederate sympathizer, but no substantial evidence was offered that she had participated in any murder plot." (Nevins, The War For the Union: The Organized War to Victory: 1864-1865, 333)

You mention Thomas and Hyman as well. I would be careful with that example, given that we have little in the way of knowledge as to who wrote what. In looking at Thomas's biography of Lincoln, he writes "Eisenschiml's Why Was Lincoln Murdered? (1937) brings forth much new material, with startling implications about men in high position, especially Stanton." (Thomas, Abraham Lincoln: A Biography, p. 548). That's hardly damning commentary.
Thomas wrote an essay located in his papers titled "Edwin M. Stanton Takes Over the War Department" in which Stanton is painted as acerbic, emotional, and often times short tempered, but again there is little of real dislike for the subject here. ("Edwin M. Stanton Takes Over the War Department" in Michael Burlingame, ed., "Lincoln's Humor" and Other Essays, pp. 189-203).

Thomas's biographer, John Hoffman, writes of the Thomas-Hyman connection "It is virtually impossible to apportion credit for Stanton" (Hoffman, "Benjamin P. Thomas", Journal of the Abraham Lincoln Association, p. 53). Given that Hyman is a Constitutional scholar who has focused in other works on the question of military and civilian control, it's likely he was more involved in the final product written about the trial. Hyman was suggested to Thomas's publisher as the one to complete the biography by none other than Allan Nevins, who knew Hyman when he was a student at Columbia.

However, Hyman has taken issue with some of the nonsense that has passed for Lincoln assassination "scholarship" in an essay entitled "With Malice Toward Some: Scholarship (or Something Less) on the Lincoln Murder" which I close with.

[mike86002000]

(01-21-2019 08:07 PM)wpbinzel Wrote:  

(01-21-2019 07:48 PM)mike86002000 Wrote:  Bill wrote;
No, it is not just a technicality. The rationale and reasoning behind a court's decision is every bit as important as the result, if not more. In Milligan, there were two opinions, a majority opinion and a minority opinion. Above, where you wrote: "The ruling in "Milligan" was unanimous, not just a "majority", as Boynton says.", you are misconstruing Boynton's reference to the majority opinion.
end quote

Is it not true that Ex patre Milligan was a unanimous decision?
Mike

Because the minority opinion was a concurring opinion and not a dissenting one, yes, Milligan (and, by the way, it is "parte" and not "patre") was a unanimous decision with a majority opinion and a minority opinion. In short, the result of the case was unanimous, but the rationale and reasoning for reaching that result was not.

Of course, it's "Parte", thanks. I corrected it where I could above. I didn't always misspell it. Perhaps I have something in common with Boynton, in that he didn't consistently spell it "Milligen", either.
Mike

[L Verge]

Rob - I just want to thank you for your excellent rebuttal/analysis above. Your depth of reading, research, and 'riting shines through.

[Rob Wick]

Thanks. I only hope it makes a difference (although I won't hold my breath).

Best
Rob

[wpbinzel]

Regardless of your position on the civil versus military tribunal question, if you have not read (or if it has been a while since you have) Thomas Reed Turner's article, "What Type of Trial? A Civil Versus a Military Trial for the Lincoln Assassination Conspirators," I highly recommend it to all. It was published in 1982 in the Journal of the Abraham Lincoln Association. The article does not argue the legal question one way or the other (although Professor Reed views the decision to use of a military commission to have been "unwise"), but provides some excellent insight into the historic context and perspective of the time.

The article may be found at:
https://quod.lib.umich.edu/j/jala/262986...w=fulltext

[L Verge]

(01-22-2019 03:46 PM)Rob Wick Wrote:  Thanks. I only hope it makes a difference (although I won't hold my breath).

Best
Rob

It makes a difference to those who are open-minded to factual history and want to learn accurate information.