The Judicial Murder of Mary E. Surratt

by David Miller DeWitt

There were also specifications, the substance of which was that Milligan had joined and aided a secret society, known as the Order of American Knights or Sons of Liberty, for the purpose of overthrowing the Government and authorities of the United States; had communicated with the enemy; conspired to seize munitions of war in the arsenals, and to liberate prisoners; resisted and encouraged resistance to the draft: at or near Indianapolis, in Indiana, “a State within the military lines of the Army of the United States, and the theatre of military operations, and which had been and was constantly threatened to be invaded by the enemy.”

On these charges and specifications, Milligan was subjected to a lengthy trial by this Military Commission which finally found him guilty on all the charges and sentenced him to be hanged. The record was approved by the Commanding General, and then transmitted to President Lincoln, who held it long under advisement, and was so holding it when he was killed. His successor, at about the same time that he summoned the Commission to try Mrs. Surratt, at length approved the findings and ordered the sentence to be executed on Friday, the 19th day of May, 1865.

But this object-lesson to the Commission sitting at that date in the old Penitentiary was intercepted. On the 10th of May, Milligan brought the record before the United States Circuit Court by a petition for his discharge, and, the two judges differing upon the main question of the jurisdiction of the Commission, the cause was certified under the statute to the Supreme Court of the United States; in deference to which action the President suspended the execution. The argument before that high tribunal coming on in the winter of 1865-66, a great array of counsel appeared upon both sides; David D. Field, James A. Garfield and Jeremiah S. Black for the prisoner, and Attorney-General Speed and Benjamin F. Butler for the United States. The counsel for the Government followed the same line as did Judge Bingham in his argument on the “Conspiracy Trial;” the counsel for the prisoner on their side, only enlarging, emphasizing and enforcing the argument of Reverdy Johnson. At the close of the term the Court unanimously decided that the Military Commission had no jurisdiction to try Milligan; that its verdict and sentence were void; and ordered the defendant discharged.

At the next term, the Court handed down two opinions—one the opinion of the Court, read by Judge Davis, in which four of his colleagues concurred, and one by Chief-Justice Chase, in which three of his colleagues concurred. The two opinions agreed that, as matter of law, the President could not of his own motion authorize such a Commission, and that, as matter of fact, the Congress had not authorized such a Commission; and therefore they were at one in their conclusion. But they differed in this; that, whereas the majority of the Court held that not even the Congress could authorize such a Court, the minority, while agreeing that the Congress had not exercised such a power, were of opinion that such a power was lodged in that branch of the Government.

The attempt has often been made to distinguish the case of Mrs. Surratt from that of Milligan by alleging that Washington at the time of the assassination was within the theatre of military operations, and actually under martial law, whereas Indiana at the time of the Commission of Milligan’s alleged offenses was not.

Now, it must be admitted that at the time of the murder of President Lincoln the war had swept far away from the vicinity of the Capital. There had been no Confederate troops near it since Early’s raid in the summer of 1864, and no enemy even in the Shenandoah Valley since October. It must also be admitted, and was, in fact, proved on the trial, that the civil courts were open and in full and unobstructed discharge of their functions. As for the reiterated affirmation of Judge Bingham that the courts were only kept open by the protection of the bayonet; that is precisely what was affirmed by General Butler, in his argument before the Supreme Court, to have been the fact in Indiana.

None of the counsel in the Milligan case claimed that a Military Commission could possibly have jurisdiction to try a simple citizen in a State where there was no war or rumors of war.

“We do fully agree, that if at the time of these occurrences there were no military operations in Indiana, if there was no army there, if there was no necessity of armed forces there, * * * then this Commission had no jurisdiction to deal with the relator, and the question proposed may as well at once be answered in the negative.”

They contended, as the very basis of their case, that the acts of Milligan “took place in the theatre of military operations, within the lines of the army, in a State which had been, and then was constantly threatened with invasion.”

And, in fact, the record in so many words so stated, and the statement was uncontroverted by the relator.