ON the first of May, 1865, President Johnson ordered the assistant adjutant general to select nine high ranking officers of the army to serve as a military commission to try all persons implicated in Lincoln's assassination. At the same time he requested his attorney general to furnish him with an opinion on the jurisdiction of a military tribunal. Advance information on these proceedings came to the retired chief law officer of the government, Edward Bates, then living in St. Louis.
"I am pained to be led to believe," he wrote in his diary on May 25, "that my successor, Atty. Genl. Speed, has been wheedled out of an opinion, to the effect that such a trial is lawful. If he be, in the lowest degree, qualified for his office, he must know better."1
Speed's opinion was not given to the public until two months later, for reasons that were never explained but which are easy enough to guess; in fact, the paper bears no date except "July 1865." When Bates finally read it, his disgust found vent in strong words.
"This is the most extraordinary document I ever read, under the name of a law opinion," he declared. "This opinion is . . . dated ' July -- 1865'. After the sentence, and in fact, after the execution of the accused who were condemned to death! And thus, it is apparent that the opinion was gotten up (a mere fetch of the War Office) to bolster up a jurisdiction, after the fact, so generally denounced, by lawyers and by the respectable press . . ."2____________________