The Flimsy Case Against Mary Surratt

[mike86002000]

(01-10-2019 10:31 PM)wpbinzel Wrote:  The opening sentence of your "article" reads "On June 30, 1865, an illegal military tribunal found Mrs. Mary Surratt guilty of conspiring with John Wilkes Booth...."

Um, Mike, please provide the legal citation of the court case that specifically found the conviction of Mrs. Surratt before a military tribunal to be "illegal." If you cannot provide such a ruling from a court of competent jurisdiction, then your statements are, and should be labeled as, your personal opinion and not as a fact. That seems to be a concept with which you have a very high degree of difficulty.

I would like to comment about the legitimacy of Mary Surratt's "trial" by a military court. I have a copy of the Supreme Court's opinion in the case of "Ex Parte Milligan". It's included in the University Of Chicago's collection, "The People Shall Judge", Vol I, page 772, and deals with the military "trial" of the civilian Milligan in 1864. The opinion was written in 1866.
The question, in the case before the Supreme Court, is stated: "had the military commission … jurisdiction, legally, to try and sentence him?". The answer is based on the Constitutional clause, "That the trial of all crimes, except in case of impeachment, shall be by jury", and the 4th, 5th, and 6th amendments. The answer is NO.
The parallels to Mrs. Surratt's case are striking. Milligan and Surratt were not residents of states that had seceded. Neither had ever been members of the military. Both had been arrested in their home by the military. Both were tried, convicted, and sentenced to be hanged by a military commission, although civilian courts were available at the time.
On line, please see the article at: https://en.wikipedia.org/wiki/Ex_parte_Milligan . Probably the text of the Supreme Court's opinion is online somewhere. It's very clear, and emphatic.
Another Mike

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[L Verge]

Which great, Greek philosopher or statesman stated, "In times of war, the law falls silent?"

Desperate times require desperate measures -- and the courts had not yet ruled on Milligan or other such cases in 1865; the war was still going on; the commander-in-chief of Union forces (who had taken an active part in the conduct of the war) had been killed in a city that came under fire during the war; those who were accused of aiding Booth were considered "enemy belligerents," despite being out of uniform; many very qualified historians today still defend the use of the military commission (for example, The Hon. Frank J. Williams, retired Chief Justice of the Rhode Island Supreme Court, who is a former military officer and a member of the team concerning the prisoners at Guantanamo following 9/11, or Dr. Thomas R. Turner, Dr. Edward Steers, Jr.. the authors of Come Retribution, and quite a number of others).

BTW: Like almost everything that passes through our law systems, the Milligan Case had/has clauses in it that restrict it under certain circumstances. Do some more reading... Start with research that Dr. Steers has done, and don't forget to check out 20th-century cases.

[mike86002000]

(01-13-2019 01:44 PM)L Verge Wrote:  Which great, Greek philosopher or statesman stated, "In times of war, the law falls silent?"

Desperate times require desperate measures -- and the courts had not yet ruled on Milligan or other such cases in 1865; the war was still going on; the commander-in-chief of Union forces (who had taken an active part in the conduct of the war) had been killed in a city that came under fire during the war; those who were accused of aiding Booth were considered "enemy belligerents," despite being out of uniform; many very qualified historians today still defend the use of the military commission (for example, The Hon. Frank J. Williams, retired Chief Justice of the Rhode Island Supreme Court, who is a former military officer and a member of the team concerning the prisoners at Guantanamo following 9/11, or Dr. Thomas R. Turner, Dr. Edward Steers, Jr.. the authors of Come Retribution, and quite a number of others).

BTW: Like almost everything that passes through our law systems, the Milligan Case had/has clauses in it that restrict it under certain circumstances. Do some more reading... Start with research that Dr. Steers has done, and don't forget to check out 20th-century cases.

That the war was still going on, or that Washington had come under fire doesn't change anything as far as the legality of military jurisdiction. Milligan's case was earlier in the war, and Morgan had invaded Indiana.
The fact is that the Supreme Court ruled that the military had no legal jurisdiction to try and sentence civilians,if civilian courts were available. The opinion of the people you say defend the use of the military commission not with standing. During the "trial", the military's jurisdiction was questioned. It was by no means a new idea in 1866.
The Supreme Court's decision was unanimous although four justices found it necessary to comment that Congress had the right to pass laws that would allow military jurisdiction. They noted it had not done so. That's not a clause that restricts application of the finding. What clauses are you talking about? Have you read "Ex Parte Milligan? What 20th century cases do you think I should read?
Mike

[wpbinzel]

(01-13-2019 01:30 PM)mike86002000 Wrote:  

(01-10-2019 10:31 PM)wpbinzel Wrote:  The opening sentence of your "article" reads "On June 30, 1865, an illegal military tribunal found Mrs. Mary Surratt guilty of conspiring with John Wilkes Booth...."

Um, Mike, please provide the legal citation of the court case that specifically found the conviction of Mrs. Surratt before a military tribunal to be "illegal." If you cannot provide such a ruling from a court of competent jurisdiction, then your statements are, and should be labeled as, your personal opinion and not as a fact. That seems to be a concept with which you have a very high degree of difficulty.

I would like to comment about the legitimacy of Mary Surratt's "trial" by a military court. I have a copy of the Supreme Court's opinion in the case of "Ex Parte Milligan". It's included in the University Of Chicago's collection, "The People Shall Judge", Vol I, page 772, and deals with the military "trial" of the civilian Milligan in 1864. The opinion was written in 1866.
The question, in the case before the Supreme Court, is stated: "had the military commission … jurisdiction, legally, to try and sentence him?". The answer is based on the Constitutional clause, "That the trial of all crimes, except in case of impeachment, shall be by jury", and the 4th, 5th, and 6th amendments. The answer is NO.
The parallels to Mrs. Surratt's case are striking. Milligan and Surratt were not residents of states that had succeeded. Neither had ever been members of the military. Both had been arrested in their home by the military. Both were tried, convicted, and sentenced to be hanged by a military commission, although civilian courts were available at the time.
On line, please see the article at: https://en.wikipedia.org/wiki/Ex_parte_Milligan . Probably the text of the Supreme Court's opinion is online somewhere. It's very clear, and emphatic.
Another Mike

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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.

No court of competent jurisdiction has ever ruled that the trial of the Lincoln assassination conspirators was "illegal," even in the aftermath of Milligan. Judge Thomas Jefferson Boynton of the U.S. District Court for the Southern District of Florida considered that very issue in Ex Parte Mudd, 17 F. Cas. 954 (S.D. Fla. 1868) two years after Milligan. Judge Boynton specifically ruled that Milligan was not on point and was not applicable to the Lincoln assassination conspirators. That decision has never been overruled. In fact, a portion of the decision was cited as good law by the U.S. Court of Appeals for the D.C. Circuit in 2016 in a ruling authored by now-Justice Brett Kavanaugh. See Al Bahlul v. United States, 840 F.3d 757 (2016).

The exercise to apply 21st Century legal theory to a 19th Century case is very problematic. At best, it is highly speculative and a matter of conjecture, and should be labeled as such, and not as fact. Reasonable people can and do have different opinions on the issue, including folks whom I hold in high regard. But just because it is your opinion, does not make it a fact.

[RJNorton]

(01-13-2019 03:59 PM)wpbinzel Wrote:  No court of competent jurisdiction has ever ruled that the trial of the Lincoln assassination conspirators was "illegal," even in the aftermath of Milligan. Judge Thomas Jefferson Boynton of the U.S. District Court for the Southern District of Florida considered that very issue in Ex Parte Mudd, 17 F. Cas. 954 (S.D. Fla. 1868) two years after Milligan.

Here is a part of the heart of Judge Thomas J. Boynton's opinion:

"The President was assassinated not from private animosity, nor any other reason than a desire to impair the effectiveness of military operations, and enable the rebellion to establish itself into a Government; the act was committed in a fortified city, which had been invaded during the war, and to the northward as well as the southward of which battles had many times been fought; which was the headquarters of all the armies of the United States, from which daily and hourly went military orders. The President is the Commander in Chief of the army and the President who was killed had many times made distinct military orders under his own hand, without the formality of employing the name of the Secretary of War or commanding general. It was not Mr. Lincoln who was assassinated, but the Commander in Chief of the army for military reasons. I find no difficulty therefore, in classing the offense 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."

[AussieMick]

One 20th century case that I can think of is the Nuremberg Trials after WW2. The US was a major participant during those trials.

I also point out that the difficulty of finding jury members that are independent and unbiased becomes enormous during high profile cases.

"Milligan and Surratt were not residents of states that had succeeded." ( I think you mean "seceded" )
Why is that relevant ?

[mike86002000]

(01-13-2019 03:59 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.

No court of competent jurisdiction has ever ruled that the trial of the Lincoln assassination conspirators was "illegal," even in the aftermath of Milligan. Judge Thomas Jefferson Boynton of the U.S. District Court for the Southern District of Florida considered that very issue in Ex Parte Mudd, 17 F. Cas. 954 (S.D. Fla. 1868) two years after Milligan. Judge Boynton specifically ruled that Milligan was not on point and was not applicable to the Lincoln assassination conspirators. That decision has never been overruled. In fact, a portion of the decision was cited as good law by the U.S. Court of Appeals for the D.C. Circuit in 2016 in a ruling authored by now-Justice Brett Kavanaugh. See Al Bahlul v. United States, 840 F.3d 757 (2016).

The exercise to apply 21st Century legal theory to a 19th Century case is very problematic. At best, it is highly speculative and a matter of conjecture, and should be labeled as such, and not as fact. Reasonable people can and do have different opinions on the issue, including folks whom I hold in high regard. But just because it is your opinion, does not make it a fact.

Does the ruling of a District Court Judge overrule a finding of the Supreme Court?

The Only fact I intended to assert is that the Supreme Court Ruled in Ex Parte Milligan that the military had no jurisdiction in the trial and sentencing of civilians if civilian courts were available. This is a fact, not merely my opinion.

Mike

[Steve]

(01-12-2019 04:27 PM)Christine Wrote:  I have often wondered if there was a connection between JWB and Mary Surratt and George W Gayle of Alabama who posted an ad in December 1864 in Selma Alabama newspapers soliciting money to fund the assassination of Lincoln, Johnson, and Seward. Would be interesting to know if JWB knew Gayle. To say there was no credible plans to decapitate the union is to ignore some pretty strong evidence. Perhaps he was acting alone or bluffing, but it seems I remember Booth went to Montgomery didn't he? Anyone know if they knew each other?

There's no known connection between Gayle and Booth, personally, that I know of. According to John Wilkes Booth: Day by Day by Art Loux, the last time Booth was in Montgomery was on 02 Dec. 1860. Gayle's ad appeared in the 01 Dec. 1864 Selma Dispatch. I did a thorough search of multiple newspaper databases and could not find it reprinted in any southern newspapers. But the New York Herald ran a news story on the ad (with its full text) on page 1 of the 21 Jan. 1865 edition. Here's an image of the ad as it was reprinted in the Herald:

   

The Herald article was reprinted in a very few northern newspapers before the assassination. Interestingly, the Herald article was reprinted much more widely in Britain before the assassination. Probably due it being published in New York. According to Day by Day, Booth went to New York ten days after the Herald article was published, so I guess it's possible that somebody showed Booth the ad. But it's probably more likely that Lincoln, Seward, and Johnson - the three men in the Administration targeted in the ad - enjoyed the most enmity for partisans of the Confederate cause. The Philadelphia Inquirer rediscovered the Herald article a few days after the assassination, and it was soon widely reprinted nationwide. This let to Gayle's arrest, but he was later released by authorities in Oct. 1865, after authorities were confident that Gayle had nothing to do with the assassination. President Johnson later pardoned Gayle:

https://www.raabcollection.com/andrew-jo...derate-who

Gayle later claimed the ad was a joke. My thinking is the ad probably was partially a joke and a scam. The ad itself was anonymous and Gayle only said he would fund the attempt if he received an impossibly large one million dollar amount; pretty quickly if the assassinations were supposed to take place by 01 March 1865. My thinking is if people were stupid enough to send money to the address, he figured he could just keep it for himself.

[mike86002000]

(01-13-2019 04:34 PM)AussieMick Wrote:  One 20th century case that I can think of is the Nuremberg Trials after WW2. The US was a major participant during those trials.

I also point out that the difficulty of finding jury members that are independent and unbiased becomes enormous during high profile cases.

"Milligan and Surratt were not residents of states that had succeeded." ( I think you mean "seceded" )
Why is that relevant ?

I did, of course mean "seceded", thanks. I was pointing out the similarity between the cases of Milligan and Surrat.

People on trial at Nuremberg were not U.S. citizens. I don't think that has anything to do with Milligan or Surratt.

Yes, it's difficult to find "twelve men, good and true".

Mike

[wpbinzel]

(01-13-2019 04:48 PM)mike86002000 Wrote:  

(01-13-2019 03:59 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.

No court of competent jurisdiction has ever ruled that the trial of the Lincoln assassination conspirators was "illegal," even in the aftermath of Milligan. Judge Thomas Jefferson Boynton of the U.S. District Court for the Southern District of Florida considered that very issue in Ex Parte Mudd, 17 F. Cas. 954 (S.D. Fla. 1868) two years after Milligan. Judge Boynton specifically ruled that Milligan was not on point and was not applicable to the Lincoln assassination conspirators. That decision has never been overruled. In fact, a portion of the decision was cited as good law by the U.S. Court of Appeals for the D.C. Circuit in 2016 in a ruling authored by now-Justice Brett Kavanaugh. See Al Bahlul v. United States, 840 F.3d 757 (2016).

The exercise to apply 21st Century legal theory to a 19th Century case is very problematic. At best, it is highly speculative and a matter of conjecture, and should be labeled as such, and not as fact. Reasonable people can and do have different opinions on the issue, including folks whom I hold in high regard. But just because it is your opinion, does not make it a fact.

Does the ruling of a District Court Judge overrule a finding of the Supreme Court?

The Only fact I intended to assert is that the Supreme Court Ruled in Ex Parte Milligan that the military had no jurisdiction in the trial and sentencing of civilians if civilian courts were available. This is a fact, not merely my opinion.

Mike

It is not a question of one court "overruling" another; it is a question of whether a decision of the Supreme Court is "on point"; i.e., whether the facts of a subsequent case fall within the Court's ruling. In this instance, a federal judge ruled that Milligan was not on point and, therefore, not applicable to the Lincoln assassination conspirators. That decision has never been overruled and, consequently, still stands.

Your correctly summarize the holding of the Court in Milligan. Where you are incorrect is the relevance and application of that ruling to the conspirators. The "fact" is that the only court of competent jurisdiction to consider the matter said that Milligan was not relevant or applicable to the Lincoln assassination conspirators. You certainly may disagree with Judge Boynton's ruling, but that is a matter of your opinion, and your opinion does not make it a fact.

[L Verge]

Another Mike - Welcome to the forum. When I advised Mr. G (the Mike of the Moment) to read further on the Milligan case, I was referring to historic cases of the 20th century that have been cited in relation to the legality of the 1865 Tribunal. Here is an excerpt from an excellent review done by Dr. Thomas R. Turner (one of the first academic historians to embrace the research of us amateurs) upon the publication of Steers's The Trial:

Another area that Steers tackles head on is the military trial. Many authors citing the 1866 Supreme Court decision Ex parte Milligan, which stated that military tribunals were illegal if the civil courts were open and functioning, have argued that all of the defendants were unjustly tried. However, Steers is one of the few historians to vigorously argue that the military tribunal was legal.

Steers believes that rather than being a universal condemnation of military trials, the Milligan decision was much more limited in its application. In his view, the conspirators were civilians who were aiding the enemy in time of war in the nation's capital and in making an attack on the commander-in-chief they were opening themselves to the possibility of military justice. Steers backs his position by citing a similar opinion from Attorney General James Speed, an 1868 decision by Judge Thomas Boynton where he denied Mudd's request for a writ of habeas corpus ruling explicitly that the Milligan decision did not apply to Mudd, and the trial of German saboteurs during World War II which was reviewed by the Supreme Court in the case Ex parte Quirin. The Quirin trial, held before a secret military court, involved the trial of eight German nationals, six of whom were hanged.

If I remember correctly the former Chief Justice of the Supreme Court, Judge Rehnquist, wrote on this subject also in All the Laws but One. We also had a former JAG officer and current law professor, Burrus Carnahan, speak on the legality of the Commission several years ago at a Surratt Conference. He upheld the court's legality. Being aware of details like this is what causes me to find fault with faulty comments. I have spent too many years of my life trying to spread good, documented history -- and in quite a few cases have actually changed my mind when hit with better evidence.

[mike86002000]

(01-13-2019 05:57 PM)wpbinzel Wrote:  It is not a question of one court "overruling" another; it is a question of whether a decision of the Supreme Court is "on point"; i.e., whether the facts of a subsequent case fall within the Court's ruling. In this instance, a federal judge ruled that Milligan was not on point and, therefore, not applicable to the Lincoln assassination conspirators. That decision has never been overruled and, consequently, still stands.

Your correctly summarize the holding of the Court in Milligan. Where you are incorrect is the relevance and application of that ruling to the conspirators. The "fact" is that the only court of competent jurisdiction to consider the matter said that Milligan was not relevant or applicable to the Lincoln assassination conspirators. You certainly may disagree with Judge Boynton's ruling, but that is a matter of your opinion, and your opinion does not make it a fact.

You put it succinctly, thanks. It is indeed my opinion that "Milligan" should, and was intended to, apply to cases like Surratt's. I supported my argument by pointing out the similarities between the two cases.

As I understand Judge Boynton's argument, from the excerpt posted above, military jurisdiction was justified since Lincoln was Commander In Chief of the Armed Forces. Justified how? By law?

Mike

[wpbinzel]

(01-13-2019 06:47 PM)mike86002000 Wrote:  You put it succinctly, thanks. It is indeed my opinion that "Milligan" should, and was intended to, apply to cases like Surratt's. I supported my argument by pointing out the similarities between the two cases.

As I understand Judge Boynton's argument, from the excerpt posted above, military jurisdiction was justified since Lincoln was Commander In Chief of the Armed Forces. Justified how? By law?

Mike

You understand my point, i.e., there is a distinction between what one assumes or believes and what is fact. To be able to differentiate between the two is essential in law and in history. I do not agree with, but totally respect your opinion on the application of Milligan to the case of Mrs. Surratt, et al. In my opinion, and as matter of law, Judge Boynton was right.

I do not have Boynton's ruling as a cut and paste document. Roger (or anyone else), do you have the full ruling in a form that you could post it without having to retype it (or is it already posted elsewhere on the Forum)?

[mike86002000]

(01-13-2019 07:17 PM)wpbinzel Wrote:  I do not have Boynton's ruling as a cut and paste document. Roger (or anyone else), do you have the full ruling in a form that you could post it without having to retype it (or is it already posted elsewhere on the Forum)?

I found Boynton's ruling at: https://timesmachine.nytimes.com/timesma...957038.pdf .

I've also found Att Gen Speed's argument for the jurisdiction of the commission at the Surratt Society Site.
I'll be rereading them both, but Boynton's ruling has to do with denying a petition for a Writ of Habeas Corpus. Milligan acknowledged that Congress had made that legal. Speed's argument refers to "The Rules Of War". Milligan says it would be a waste of time to ask what rules.
Mike

[wpbinzel]

(01-13-2019 07:43 PM)mike86002000 Wrote:  I found Boynton's ruling at: https://timesmachine.nytimes.com/timesma...957038.pdf .
I've also found Att Gen Speed's argument for the jurisdiction of the commission at the Surratt Society Site.
I'll be rereading them both, but Boynton's ruling has to do with denying a petition for a Writ of Habeas Corpus. Milligan acknowledged that Congress had made that legal. Speed's argument refers to "The Rules Of War". Milligan says it would be a waste of time to ask what rules.
Mike

Glad you found it. The relevance of Ex Parte Milligan and Ex Parte Mudd is that the basis of Dr. Mudd's petition for habeas corpus was Milligan, which Judge Boynton rejected as not being on point or applicable. I find Boynton's legally undisturbed ruling compelling, while you (and others) do not. I have no problem with that and doubt that we could convince the other of our respective positions. That is the value of this Forum and healthy debate, not to mention what makes the world go around. My problem is with an assertion as fact that the Military Commission was "illegal" versus stating it as "in my view" or "it is my opinion"....