MILITARY COMMISSIONS. 



569 



Government, Mr. Randolph, then Attorney-General, 

 said : "The law of nations, although not specifically 

 adopted by the Constitution, is especially a part of 

 the law of the land. Its obligation commences and 

 runs with the existence of a nation, subject to modi- 

 fication on some points of indifference. (See opin- 

 ion, Attorney-General, vol. i., page 27.) The fram- 

 ers of the Constitution knew that a nation could not 

 maintain an honorable place among the nations of 

 the world, that does not regard the great and essen- 

 tial principles of the law of nations as a part of the 

 law of the land. Hence Congress may define those 

 laws, but cannot abrogate them, or, as Mr. Randolph 

 says, may "modify on some points of indifference." 



That the laws of nations constitute a part of the 

 laws of the land is established from the face of the 

 Constitution upon principle and by authority. 



But the laws of war constitute much the greater 

 part of the law of nations. Like the other laws of 

 nations, they exist and are of binding force upon the 

 departments and citizens of the Government, though 

 not defined by any law of Congress. No one that 

 has ever glanced at the many treatises that have 

 been published in different ages of the world by great, 

 good, and learned men, can fail to know that the 

 laws of war constitute a part of the law of nations, 

 and that those laws have been prescribed with toler- 

 able accuracy. 



Congress can declare war. When war is declared, 

 it must be, under the Constitution, carried on accord- 

 ing to the known laws and usages of war among 

 civilized nations. Under the power to define those 

 laws, Congress cannot abrogate them or authorize 

 their infraction. The Constitution does not permit 

 this Government to prosecute a war as an uncivilized 

 and barbarous people. 



As war is required by the framework of our Gov- 

 ernment to be prosecuted according to the known 

 usages of war among the civilized nations of the 

 earth, it is important to understand what are the 

 obligations, duties, and responsibilities imposed by 

 war upon the military. Congress not having de- 

 fined, as under the Constitution it might have done, 

 the laws of war, we must look to the usage of nations 

 to ascertain the powers conferred in war, on whom 

 the exercise of such powers devolve, over whom, and 

 to what extent do those powers reach, and in how 

 far the citizen and the soldier are bound by the legit- 

 imate use thereof. 



The power conferred by war is, of course, adequate 

 to the end to be accomplished, and not greater than 

 what is necessary to be accomplished. The law of 

 war, like every other code of laws, declares what 

 shall not be done, and does not say what may be 

 done. The legitimate use of the great power of war, 

 or rather the prohibitions upon the use of that power, 

 increase or diminish, as the necessity of the case 

 demands. Where a city is besieged and hard pressed, 

 the commander may exert an authority over the non- 

 combatants which he may not when no enemy is near. 



All wars against a domestic enemy or to repel in- 

 vasions are prosecuted to preserve the Government. 

 If the invading force can be overcome- by the ordinary 

 civil policy of a country, it should be done without 

 bringing upon the country the terrible scourge of 

 war; if a commotion or an insurrection can be put 

 down by the ordinary process of law, the military 

 should not be called out. A defensive foreign war is 

 declared and carried on because the civil police is 

 inadequate to repel it; a civil war is waged because 

 the laws cannot be peacefully enforced by the ordi- 

 nary tribunals of the country through civil process 

 and by civil officers. Because of the utter inability 

 to keep the peace and maintain order by the custom- 

 ary officers and agencies in time of peace, armies 

 are organized and put into the field. They are called 

 out and invested with the powers of war to prevent 

 total anarchy, and to preserve the Government. 

 Peace is the normal condition of a country, and war 

 abnormal, neither being without law, but each having 



laws appropriate to the condition of society. The 

 maxim inter arma silent leges is never wholly true. 

 The object of war is to bring society out of its abnor- 

 mal condition ; and the laws of war aim to have that 

 done with the least possible injury to persons or 

 property. 



Anciently, when two nation!? were at war, the con- 

 queror had or asserted the right to take from his 

 enemy his life, liberty, and property; if either was 

 spared, it was as a favor or act of mercy. By the 

 laws of nations, and of war as a part thereof, the con- 

 queror was deprived of this right. 



When two governments, foreign to each other, are 

 at war, or when a civil war becomes territorial, all 

 of the people of the respective belligerents become 

 by the law of nations enemies of each other. As ene- 

 mies they cannot hold intercourse, but neither can 

 kill or injure the other except under a commission 

 from their respective governments. So humanizing 

 have been and are the laws of war, that it is a higb. 

 offence against them to kill an enemy without such 

 commission. The laws of war demand that a man 

 shall not take human life except under a license from 

 his government ; and under the Constitution of the 

 United States no license can be given by any depart- 

 ment of the Government to take human life in war, 

 except according to the law and usages of war. Sol- 

 diers regularly in the service have the license of the 

 Government to deprive men, the active enemies of 

 their Government, of their liberty and lives. Their 

 commission so to act is as perfect and legal as that 

 of a judge to adjudicate, but the soldier must act in 

 obedience to the laws of war, as the judge must in 

 obedience to the civil law. A civil judge must try 

 criminals in the mode prescribed in the Constitution 

 and the law; so soldiers must kill or capture accord- 

 ing to the laws of war. Non-combatants are not to 

 be disturbed or interfered with by the armies of 

 either party except in extreme cases. Armies are 

 called out and organized to meet and overcome the 

 active, acting public enemies. But enemies with 

 whom an army have to deal are of two classes : 



1st. Open, active participants in hostilities, and 

 soldiers who wear the uniform, move under the flag, 

 and hold the appropriate commission from their Gov- 

 ernment. Openly assuming to discharge the duties 

 and meet the responsibilities and dangers of soldiers, 

 they are entitled to all belligerent rights, and should 

 receive all the courtesies due to soldiers. The true 

 soldier is proud to acknowledge and respect those 

 rights, and ever cheerfully extends those cour- 

 tesies. 



2d. Secret but active participants, as spies, brig- 

 ands, bushwhackers, jayhawkers, war rebels, and 

 assassins. In all wars, and especially in civil wars, 

 such secret, active enemies rise up to annoy and 

 attack an army, and they must be met and put down 

 by the army. When lawless wretches become so 

 impudent and powerful as not to be controlled and 

 governed by the ordinary tribunals of a country, 

 armies are called out and the laws of war invoked. 

 Wars never have been and never can be conducted 

 upon the principle that an army is but a fosse comi- 

 tatm of a civil magistrate. 



An army, like all other organized bodies, has a 

 right, and it is its first duty to protect its own exist- 

 ence, and the existence of all its parts, by the means 

 and in the mode usual among civilized nations when 

 at war. Then the question arises, do the laws of war 

 authorize a different mode of proceeding and the use 

 of different means against secret active enemies from 

 those used against open active enemies? 



As has been said, the open enemy or soldier in time 

 of war may be met in battle and k'illed, wounded or 

 taken prisoner, or so placed by the lawful strategy 

 of war as that he is powerless. Unless the law of 

 self-preservation absolutely demands it, the life of a 

 wounded enemy or a prisoner must be spared. Un- 

 less pressed thereto by the extremist necessity, the 

 laws of war condemn and punish with great severity 



