Site Ed. Note: Returning a moment to our foray into the hanging of the four convicted conspirators in the Lincoln assassination, as recommended to our attention a week ago by the coincidence of J. Edgar Hoover and Guy Banister taking turns on the night of December 27, 1942, across the hall from two of the Touhy Gang members' apartment on Leland Avenue in Chicago, peering through the "gimlet" hole of the door as the bedbugs bit them, we discovered the interesting sidelight that on the morning of July 7, 1865, the day of the hangings, the attorney for Mrs. Surratt filed in the District of Columbia Supreme Court, now the United States District Court, a petition for writ of habeas corpus on the ground that Mrs. Surratt was improperly tried before a military tribunal lacking jurisdiction of the subject matter for want of any cause involving an act of war by an enemy combatant. Judge Andrew Wylie granted the petition and ordered General Winfield S. Hancock, who had physical custody of Mrs. Surratt, to appear before him with the prisoner at 10:00 a.m. and show cause why the petition should not be granted.

At 10:00, General Hancock, despite evidence of having been served the writ, failed to appear. The Court, however, refused to issue a body attachment on the general, reasoning, in convoluted fashion, that if the general were not disposed to obey the court's order to appear, then surely he would not obey the court's order finding him in contempt and thus would likewise resist, with the might of the Army behind him, the arrest pursuant to the body attachment. The Court therefore declined to act further, surrendering its power to the military might of the Army which had just won the Civil War.

Behind this curious feigned impotence of the court lay, of course, the notion that General Hancock was a hero of the late war, having commanded the Union troops at Gettysburg during the fateful latter two days of that battle after General John Reynolds was killed on the field in the opening salvos on July 1, 1863. General Hancock was so long regarded well in the history of the Republic that he was awarded the Democratic nomination for the presidency in 1880, losing, again fatefully, to James Garfield, who would be assassinated during his first year in office by a rejected Republican patronage seeker.

At 11:30 on the morning of July 7, 1865, however, to everyone’s surprise, General Hancock appeared in the courtroom together with the United States Attorney General, James Speed, brother of Joshua Speed, Abraham Lincoln's friend from his youthful days in Kentucky. The prisoner, Mrs. Surratt, was not present. Attorney General Speed, first apologizing for General Hancock’s tardiness by explaining that he was busy tending to the scheduled executions and other duties and could not break away by the appointed hour of 10:00, presented the judge with an order signed by President Johnson directing that since habeas corpus had been previously suspended "in cases such as this", he "especially suspend[ed]" it in the case at bar. The Attorney General argued it was so on the ground that "this country is now in the midst of a great war" and its war powers and the cause of doing battle in the war superseded necessarily the civil law in order to preserve the civil law, conceding that the civil law returned once the war was concluded. The President's order thus had invalidated the Court's writ of habeas corpus issued to General Hancock.

Judge Wylie therefore felt that he had no choice in the matter but to refuse to act further.

In light of the holding by the United States Supreme Court on July 31, 1942 in Ex Parte Quirin, after emergency session of the Court was called to review whether a writ of habeas corpus should issue to free the eight accused Nazi saboteurs from decision before a military tribunal and allow them to be tried in the civilian courts, was President Johnson correct in issuing his order suspending habeas corpus? Was the Court correct in recognizing the executive order and deferring to the President's power as Commander-in-Chief of the Army to declare emergency habeas corpus suspension, or in this case, continued sustenance of the previous order of President Lincoln, as confirmed by Congress, issued in 1862?

Apparently, the attorney for Mrs. Surratt did not address a petition for writ of certiorari to the Supreme Court, with time running out, less than an hour and a half before the scheduled execution by the time the court session concluded before Judge Wylie.

The Quirin Court subsequently held that any act by "unlawful belligerents", those acting for the enemy outside the normal military uniform of a soldier, who participated in acts of war against the United States were subject to trial in military courts. Acts of treason, by contrast, were to be tried in civilian courts.

Mrs. Surratt lived in the District of Columbia and thus remained throughout the Civil War a citizen of the United States. But that simple fact did not necessarily entitle her, according to the reasoning of the Quirin case, to protected status, immune from the label "unlawful belligerent". The gravamen of the matter is whether the alleged act was committed outside the context of being a soldier, in furtherance of an act of war, for instance, spying and sabotage committed while not in uniform.

Was the conspiracy to assassinate the President, assuming for the sake of argument her complicity in the matter, an act in furtherance of the war?

The war had in large part concluded of course with the surrender of Lee's Army of Northern Virginia to General Grant at Appomattox on April 9, 1865. But the remaining forces operating south of Virginia under General Johnston had not yet surrendered and would not until General Johnston gave up his sword to General Sherman at Bennett Place outside Durham, N.C. on April 26. Thus, technically, at the time of the April 14 assassination of President Lincoln, the war still continued.

Yet, on July 7, 1865, when President Johnson issued the order suspending habeas corpus "especially" as to Mrs. Surratt, the war was plainly over, even if a state of military occupation existed in all the Southern states formerly in rebellion. The order, therefore, appears to be outside the normal powers of the President to act pursuant to the emergency powers to suspend habeas corpus, a right normally only granted to the Congress by Article I, Section 9 of the Constitution when it is in session and capable of being summoned to act, as it was not in the summer of 1865. But, there was no emergency causing the suspension or causing its continued vitality by July, as there had been in 1862: no army to be summoned by conscription, no extant state of rebellion necessary to put down by military force.

Furthermore, the order of the President amounted to a bill of attainder, prohibited by the Constitution, as it applied only to one person "especially", not a general state of affairs, as with President Lincoln's 1862 suspension of habeas corpus on the ground that it was necessary to prevent Confederate sympathizers from interfering with conscription or otherwise aid and abet the cause of the Confederacy.

So, we conclude that President Johnson exceeded his authority as chief executive officer of the United States. Mrs. Surratt's attorney should have applied for certiorari to the Supreme Court, seeking in the meantime an emergency stay of the execution, assuming that he did not, and the matter should have been heard in the highest court of the land to determine whether, first, the President had authority to order habeas corpus suspended at that time, whether, even if not, habeas corpus, as previously ordered suspended by President Lincoln, remained suspended at the time of Mrs. Surratt's arrest, and whether, if so, Mrs. Surratt's alleged actions fell within the proscribed acts subject to the suspension, that is constituted an act of war by an unlawful belligerent such that she could be tried by a military tribunal.

Having concluded that President Johnson could not act anew to suspend habeas corpus on July 7, 1865, there being no emergency or state of open insurrection or rebellion then in effect, was habeas corpus properly still suspended either on April 14, 1865 or, at the time of the planning of the assassination, which, by the evidence adduced before the military tribunal, had preceded the surrender at Appomattox? Regardless, was the war still proceeding to a significant enough extent on April 14, given that Johnston's army had not yet surrendered, to justify continued suspension of the writ at the time of the assassination?

President Lincoln’s order of September 24, 1862 stated in part:

[D]uring the existing insurrection, and as a necessary measure for suppressing the same, all rebels and insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice affording aid and comfort to the rebels against the authority of the United States, shall be subject to martial law, and liable to trial and punishment by courts-martial or military commission.

Did this order, of its own terms, therefore end with the surrender at Appomattox? Did it nevertheless apply to all acts committed before the surrender, i.e., the conspiracy to assassinate President Lincoln?

But, since habeas corpus pertains to constitutionally mandated rights pursuant to an arrest, is it not the case that the point of arrest, not the time of the crime, is the significant point in time for consideration of whether habeas corpus applies? It would certainly so appear.

Mrs. Surratt was arrested on April 18, eight days before General Johnston's surrender to General Sherman at Bennett Place, (coincidentally (or not?), the same day Booth was shot in the neck and killed at Port Royal, Virginia). Was the war still sufficiently ongoing therefore on April 18 to warrant continued suspension of habeas corpus, despite the April 9 surrender of Lee to Grant?

Was she rather committing instead treason, not an act of war, if she was deliberately and with knowledge providing aid and comfort to the unlawful belligerents, the co-conspirators, offering her boardinghouse as a meeting place, rather than participating directly in furtherance of the conspiracy?

These are complex questions of fact and law which the Supreme Court would have needed to address had the case ever gotten to it.

So, consider yourself the Supreme Court and determine how it ought have decided the issues.

Had the case been heard by the Court, and had the Supreme Court reasoned similarly to the high court of almost precisely 77 years subsequent, then Mrs. Surratt might well have been released and re-tried in a civilian court. Whether, given public antipathy to her plight and that of the other co-conspirators, that would have changed her ultimate fate rather than merely delayed it for a time, no one may say. She and the other co-conspirators went to the gallows with no right of appeal from the military tribunal convicting them. Was it fair, in light of all the historical circumstances of the time and the case, putting aside sentimental considerations?

Hers was swift justice, but one which has often been considered flawed, and especially as to the highly questionable role of Mrs. Surratt as merely the keeper of the boardinghouse at which the conspirators, including her son, met to plan the assassination. The rest of her supposed involvement was established only by hearsay testimony of a handful of witnesses who attributed statements to her which were at worst subject to varied meaning in terms of imputing intent to aid and abet the assassination of the President. She may have been involved, but the evidence of direct participation in the planning, encouragement, or action was more tenuous than that against the other co-conspirators.

Given the climate of the times, however, we think it doubtful that the Supreme Court would have declared, even if antagonistic to President Johnson for his Tennessee roots, that habeas corpus should not have been continued in suspension, even if in the form presented to Judge Wylie, the time of suspension appeared erroneously considered by the President to be continuing through July 7 when at the time the insurrection and rebellion were plainly abated. Yet, the time of arrest being the salient moment for testing the continued viability of the suspension, the Court would have likely considered the absence of full surrender at the time by the Confederacy to have not yet nullified the emergent circumstances which had precipitated the original 1862 suspension--and that despite President Lincoln having ordered the military band on the lawn of the White House during the celebration on the night of April 9 to play "Dixie".

As to the issue of whether the act of conspiracy to assassinate the President was one sufficiently embraced by the suspension, that is in aid and furtherance of the rebellion and insurrection of the Confederacy, that would have likely been resolved against Mrs. Surratt, in light of Booth's alleged statement, to which a percipient witness testified before the military tribunal, that, just before he leaped from the President's box onto the stage, he had loudly exclaimed, "The South is avenged!" That was followed by the more usually quoted pre-exeunt flourish, "Sic semper tyrannis," the state motto of Virginia, as he hotly hit the stage and ran out the back of the theater to his awaiting horse, boot-kicked the horse tender with the other leg not broken in the leap, after having caught his right boot heel spur on the moulding of the box and in the blue square of the Union flag draping off it, riding then in a hard, hotspurred lather into the night of notorious history.

Both statements evidenced, along with other statements attributed to the co-conspirators against the Government and for the Confederacy, states of mind indicative of intent motivated by antipathy to the Union and in aid of the continued vitality of the Confederacy, the attenuation of which attitudes and actions performed in furtherance of them formed the reason for suspension of habeas corpus in the first instance.

Thus, we conclude that, even had the Supreme Court ever heard the matter, it likely would have reached a similar conclusion to that which the Court 77 years later determined in Ex Parte Quirin against the eight Nazi saboteurs, six of whom were executed on August 8, 1942, a mere nine days after the two-day Supreme Court hearing of oral argument and decision the third day, July 31. Mrs. Surratt, if having her sentence delayed by a few months to await the reconvening of the Supreme Court to hear the case, would have likely seen her end in the same manner, even if, by sometime in mid-October or November, it would have been unnecessary to shield with an umbrella her black-ensconced countenance from the piercing rays of the sun bearing down on the prison yard where her hanging took place as scheduled, July 7, 1865 at or around 1:30 p.m.

Would it have made any difference to history had she gone to her death not shielded by the umbrella?

Were the other three co-conspirators hanged with her on July 7 not equally entitled to consideration for habeas corpus?

Would the Supreme Court have deferred to the fact that the war was over and therefore concluded that no emergent circumstance of open insurrection and rebellion any longer existed justifying the suspension of habeas corpus?

Well, we leave you with those intriguing questions on this Martin Luther King Day.

Whatever the case, on July 2, 1964, the Civil Rights Act was signed by President Lyndon Johnson, eighty-three years to the day after James Garfield was shot, that being 18 years to the day after the fateful observance, via binoculars held by Major Gouverneur Kemble Warren, of the Confederates slipping close to Union lines at Little Roundtop from down in the Devil’s Den, preventing what otherwise would likely have been a rout of the Union position, winning the day, winning the battle, and perhaps thereby even winning the Civil War. Gouverneur Warren stopped the Confederacy dead in its tracks.

The front page this date tells of the first bombing of Berlin since November, 1941, a pair of bombing raids Saturday and Sunday nights. The Saturday night raid met with light resistance, with only one bomber not returning. The Sunday raid, by contrast, encountered heavy dogfights, resulting in 22 planes, apparently most four-motored, not returning. There was only slight retaliatory bombing of London, even if several Londoners were reported killed by friendly shells falling unspent on civilian areas when fired directly at the Luftwaffe bombers--contrary to the usual practice of firing more generally in order to disperse them in the direction of British interceptors.

Another raid from London was reported over the White Cliffs of Dover, headed in the direction of Boulogne in France.

From Libya came the report that the British Eighth Army was again on the move, now within 100 miles of Tripoli, as it attacked Rommel's defenses at Buerat El Hsun, reaching Beni Ulid.

From Russia came the report that a new drive had been commenced by the Russians on the Voronezh front toward the Ukraine and Kharkov, fifty miles west of the Don River, along the Kupyansk-Kharkov railway. The Nazis continued in fast retreat.

In London was received an unconfirmed Moscow radio report which claimed that Soviet forces had crossed the Donets River at a point presumed to be twelve miles southeast of Kamensk.

And, from Lenoir, N.C. came the report of a young lad, one Arley Clinton Coffey, who sought to avoid the draft by hiding in his mother's basement clad in women's garments. When the deputy sheriff arrived looking for a fresh meet with young Coffey, as Coffey was scarce, he was betrayed to the deputy's eyes by the simple fact that he forgot to erase all trace of his beard.

He should've used cream.

Well, should the Army service have not worked out for the youngster, he always had a stint available in the circus, we suppose. That, or in the Office of Price Administration, where five o'clock shadows, we understand, were somewhat common, even if coffee was still scarce.

Anyway, it's too bad the name of the deputy-sheriff was Goble and not Coffey, or we might have related it to the Silver City matter.

On second thought, it could have been his great-great grandson, losing strength, generationally dissipated, under the strains of the old West's Beans, sinking slowly into watered down men, as they returned to their original Devil's tramping grounds.

Or, he might've simply been in the occasional predicament whereby his beloved had recently joined the WAVE's, necessitating therefore his going sailing soon in pursuit of her, dressed, perforce, as he must to become a WAVE himself, as a lady.

On the editorial page, Burke Davis takes up the topic of the new bombing raid on Berlin and how its impact on the city’s residents would likely be received, especially in response to the relatively tepid reaction by the Luftwaffe and anti-aircraft batteries, the bulk of the best of which forces had been moved to the Russian front or to North Africa or dotted in defense against the anticipated invasion of southern Europe. He concludes that the raids would serve notice on Berliners, after 433 consecutive nights of respite from bombs, and on the people of Germany generally, that the war was nigh its end.

In fact, it was yet not even two-thirds through, but that was only because the madmen of the bunker would not come to grips with reality. The war was over, had been since late July, 1941 when Hitler failed in his decisive Russian offensive, necessary of success for him to continue to wage war on so many fronts simultaneously. He simply had no longer sufficient gasoline by which to operate in so diffuse areas the vast war machine he had now spent a decade cultivating to serve his will. And, by November 8, 1942, with the Allied landings in Morocco and Algeria, the war was completely lost, the combat thereafter relegated of force to defensive, attritive fighting in the European and Mediterranean theaters.

"Forgotten" urges again the Legislature to provide increased funding for the mentally deficient children of Caswell Training School and to establish another school to accept the overflow on the Caswell waiting list, as had been sought by Dorothy Knox in her late December, early January series on the Caswell School.

Both Dorothy Thompson and Raymond Clapper again tackle the complex issue of North Africa's leadership, who should run it and who should determine that leadership, the Allies or the people to be governed. Ms. Thompson describes the dichotomy between that favored by the British, insisting that General De Gaulle be given full political authority over French North Africa, and the American State Department led by Cordell Hull, favoring General Giraud, primarily for the State Department's continued disenchantment with De Gaulle over his having established, without U.S. or Canadian approval, Free French control of the islands off Newfoundland of St. Pierre and Miquelon on December 24, 1941. Ms. Thompson believes that the State Department's position is unduly turgid and should be relaxed in favor of the British position, as De Gaulle had the greater confidence of the people, sufficient to unite the French forces in North Africa against the anti-fascist forces.

Mr. Clapper continues discussion of the British-American division on the issue. He believes that American censorship on the matter, as British reports leaked their favor of De Gaulle, had disserved the cause of certainty to be achieved from open debate on the issue, regardless of which side had the better of the argument, even if he suggests that the better approach of the press, with a tough military campaign still in the offing in North Africa, was to keep a safe distance and allow the war to be fought without undue political interference from the home front.

Samuel Grafton first discusses the positive diplomatic efforts of American soldiers to impress upon India’s natives their willingness to serve India, not rule it. He then finds resemblance of the Indian national effort at revolution, cutting across all class lines, to that of the American Revolution, thus rendering itself in a positive light to any thinking American.

Finally, he opines that the French who collaborated with the Nazis out of coercion, stupidity or fear, are not the ones sought by the Free French for retribution. Rather, the targets of their wrath were the soulless quislings who collaborated purely for their own calculated self-interest in terms of economic and political power. Mr. Grafton finds this distinction wholly acceptable and elucidating of the French picture--presumably meaning to imply application of the standard to clarify any muddled understanding of the North African situation.

Chapter 13 of They Were Expendable first chronicles the prolonged goodbye of Lieutenant Kelly to Peggy. Awaiting her call for days, he continued preparing the boats for the departure with General MacArthur, his family, various generals, and Admiral Rockwell.

To secure the pen and typewriter of New York Times correspondent Nat Floyd against leakage of the story, as he hung around the boats during preparation of the supplemental decking to accommodate the per boat complement of twenty 50-gallon gasoline drums sitting astride the dock, Lieutenant Bulkeley approved, with a wink, a plan to allow Mr. Floyd accidentally to stowaway in the lazaret, the stern storage compartment behind the engine on each of the PT-boats. No leaks were allowed.

Finally, the phone call came from Peggy telling Lieutenant Kelly that she could not break away from her nursing duties at the hospital on Bataan before the 15^th, perhaps the 16^th, if that were better. Neither was any good, he told her. There was silence at the other end. After a long pause, her voice flattened as it came to her that Kelly was leaving the Philippines for good, his orders having been issued. He couldn’t breathe a word of the nature of the mission. She understood. That was that.

As he offered that he had written her a letter, two generals, needing the common line, suddenly interrupted the call.

["We hate to interrupt the tender, touching love scene there, Pilgrim, but we have a war to win and a general to transport, and before you spill the beans completely and get the Japs on our trail, who could be, after all, listening in on these calls, we'll just have our own tender love scene here, if you don't mind surrendering the phone line for a brief spell, that is."]

When Kelly finally got the line back, he was told that Peggy had waited around for fifteen minutes at the other end, but then had gone.

They had said their good-byes the night before.

The night of the 11^th arrived and the four boats departed at twilight, carrying MacArthur, the other generals, and the admiral, in all, twenty guests aboard the squadron's complement. Kelly's 34 boat carried Admiral Rockwell. Per the plan, General MacArthur and family rode on Bulkeley's 41 boat at the head of the party.

Kelly's boat had never been overhauled and so was substantially slower than the other three, even at full throttle, eventually falling behind by two hundred yards, and then beyond the horizon. The admiral, nervous at the separation, remonstrated Kelly and ordered him to catch up. Kelly told the crew to take the throttle linkage off the carburetor and manually operate the valves from the engine compartment to obtain more speed. Doing so, they finally caught up, as Bulkeley, seeing their distance to the rear, had slowed his boat.

But then, without any regulator at the immediate disposal of Kelly via the throttle linkage and before he could tell the crew below to reposition the governor so that he might limit the speed deliberately, the boat went sailing on past Bulkeley's position, leaving it in 34's wake, as the Admiral pronounced, albeit softly, "My God!"

It was plain to Kelly that the admiral, not understanding the reason for the unaltered speed, believed he had hitched a ride with a madman.

His concerns were not allayed when, as Kelly stuck his fingers at right angles before him in compliance with the admiral's order to take a bow-and-beam reading to determine precisely their distance from shore, Kelly informed him, upon inquiry, that they navigated by "guess and by God".

"My God!"

Meanwhile, Superman, stuck in an elevator with Lois, in his clever disguise as the mild-mannered reporter for the great metropolitan Daily Planet, in need of immediate conversion to enable the Man of Tomorrow to catch The Voice who had just murdered the radio commentator during a live broadcast and was presumably going to cut in on that broadcast with his Nazi propaganda if not first prevented by the Man of Tomorrow, determines a clever resolution to the dilemma. As Lois and the elevator operator have their backs turned, he simply takes off his suit.

Well, what next? Stay tuned until Tomorrow.

It could well be that the Man of Tomorrow quickly discovers that the thief who stole the pants in Salt Lake City and returned them in Denver, had reverted to his old ways and started into his fresh recidivist valley with Superman's wardrobe as his first object, in which case there may be red faces all around.

"He was attended by a lady dressed in deep black, who carried a prayer book, and who seemed more exercised in spirit than the prisoner himself. Who the lady was could not be ascertained. She left him at half past twelve o'clock, and exhibited great emotion at parting."

"Ten years ago, on a cold, dark night..."