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."
2nd. "Another guarantee of freedom was broken when" (Mary E. Surratt) "was denied a trial by jury;"
that, in her case, as in his, the Court would have set the prisoner free; there would have been no hanging, no felon's grave, and not even an ulterior attempt at a constitutional trial.
For it is remarkable that although the Military tribunal which tried Milligan pronounced him guilty of crimes deserving a traitor's death; the seeming strength of the evidence must have melted away, strangely enough, when subjected to the prospective investigation of constitutional courts, as there was not even a subsequent effort on the part of the Government to call him to account.
Let us add, as a final corollary to this exposition of the Constitution by the Supreme Court, the following remark: that the ground and argument employed by Attorney General Speed in his opinion upon the right of the President to order the trial of the alleged assassins by Military Commission, and by Judge-Advocate Bingham in his address to that Commission, involve a _reductio ad absurdum_, or, rather, a _reductio ad monstrosum_, that is, a _Reductio ad absurdum quia monstrosum_.
For, that ground and that argument, invoked to uphold and sanction the trial of civilians by military commissions, necessarily and inevitably go farther, and proclaim the right of President Johnson, alone, of his own motion and without the interposition of a formal court, whether military commission or drum-head court-martial, to have commanded the immediate execution of every person whom he might believe to be guilty of participation in the assassination of his predecessor or in the presumed attempt upon himself.
The conclusion forced upon us, therefore,--the one only thing to be said--is, that the hanging of Mary E. Surratt was nothing less than the crime of murder.