“From what source did the Military Commission * * derive their authority?”
“It is not pretended that the commission was a court ordained or established by Congress.”
“They cannot justify on the mandate of the President; because he is controlled by law and has his appropriate sphere of duty, which is to execute not to make the law; and there is no unwritten criminal code to which resort may be had as a source of jurisdiction.”
“The laws and usages of war can never be applied to citizens in states which have upheld the authority of the government and where the courts are open and their processes unobstructed. And no usage of war could sanction a military trial there for any offence whatever of a citizen in civil life, in nowise connected with the military service. Congress could grant no such power; and to the honor of our national legislature be it said it has never been provoked by the state of the country even to attempt its exercise.”
“All other persons,” (i. e., all other than those in the military and naval service) “citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of state or political necessity.”
“It is claimed that martial law covers with its broad mantle the proceedings of this Military Commission.”
“Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.”
“Martial law can never exist where the courts are open, and in the proper and unmolested exercise of their jurisdiction. It is also confined to the locality of actual war.”
Had the swift process by which this unfortunate woman was hurried to the scaffold been interrupted by a stay to allow a review by the same high tribunal which rescued Milligan from the jaws of death, it cannot be doubted that in her case, as in his, the same conclusions would have been reached, viz.:
1st. “One of the plainest constitutional provisions was, therefore, infringed when” (Mary E. Surratt) “was tried by a court not ordained and established by Congress, and not composed of judges appointed during good behavior.”