570 



MILITAEY COMMISSIONS. 



harsh or cruel treatment to a wounded enemy or a 

 prisoner. 



Certain stipulations and agreements, tacit or ex- 

 press, betwixt the open belligerent parties are per- 

 mitted by the laws 01 war, and are held to be of very 

 high an d sacred character. Such is the tacit under- 

 standing, or it may be usage of war, in regard to flags 

 of truce. Flags of truce are resorted to as a means 

 of saving human life, or alleviating human suffering. 

 When not used with perfidy, the laws of war require 

 that they should be respected. The Romans regard- 

 ed ambassadors betwixt belligerents as persons to be 

 treated with consideration and respect. Plutarch, in 

 his Life of Caesar, tells us that the barbarians in Gaul 

 having sent some ambassadors to Caesar, he detained 

 them, charging fraudulent practices, and led his 

 army to battle, obtaining a great victory. 



When the Senate decreed festivals and sacrifices 

 for the victory, Cato declared it to be his opinion 

 that Caesar ought to be given into the hands of the 

 barbarians, that so the guilt which this breach of 

 faith might otherwise bring upon the State might 

 be expiated by transferring the curse on him who 

 was the occasion of it. 



Under the Constitution and laws of the United 

 States, should a commander be guilty of such a 

 flagrant breach of law as Cato charged upon Caesar, 

 he would not be delivered to the enemy, but would 

 be punished after a military trial. The many hon- 

 orable gentlemen who hold commissions in the army 

 of the United States, and have been deputed to con- 

 duct war according to the laws of war, would keenly 

 feel it as an insult to their profession of arms for any 

 one to say that they could not or would not punish a 

 fellow-soldier who was guilty of wanton cruelty to a 

 prisoner, or perfidy toward the bearers of a flag of 

 truce. 



The laws of war permit capitulations o_f surrender 

 and paroles. They are arguments betwixt belliger- 

 ents, and should be scrupulously observed and per- 

 formed. They are contracts wholly unknown to 

 civil tribunals. Parties to such contracts must an- 

 swer any breaches thereof to the customary military 

 tribunals in time of war. If an officer of rank, 

 possessing the pride that becomes a soldier and a 

 gentleman, who should capitulate to surrender the 

 forces and property under his command and control, 

 be charged with a fraudulent breach of the terms of 

 surrender, the laws of war do not permit that he 

 should be punished without a trial, or, if innocent, 

 that he shall have no means of wiping out the foul 

 imputation. If a paroled prisoner is charged with a 

 breach of his parole, he may be punished i_f guilty, 

 but not without a trial. He should be tried by a 

 military tribunal constituted and proceeding as the 

 laws and usages of war prescribe. 



The laws and usage of war contemplate that sol- 

 diers have a high sense of personal honor. The true 

 soldier is proud to feel and know that his enemy pos- 

 sesses personal honor, and will conform and be 

 obedient to the laws of war. In a spirit of justice, 

 and with a wise appreciation of such feelings, the 

 laws of war protect the character and honor of an 

 open enemy. When, by the fortunes of war, one 

 open enemy is thrown into the hands and power of 

 another, and is charged with dishonorable conduct 

 and a breach of the laws of war, he must be tried 

 according to the usages of war. Justice and fairness 

 say that an open enemy, to whom dishonorable con- 

 duct is imputed, has a right to demand a trial. If 

 such a demand can be rightfully made, surely it can- 

 not be rightfully refused. It is to be hoped that the 

 military authorities of this country will never refuse 

 such a demand, because there is no act of Congress 

 that authorizes it. In time of war the law and usage 

 of war authorize it, and they are part of the law of 

 the land. 



One belligerent may request the other to punish 

 for breaches of the laws of war, and, regularly, such 

 ft request should be made before retaliatory measures 



are taken. Whether the laws of war have been in- 

 fringed or not, is of necessity a question to be de- 

 cided by .the laws and usages of war, and is cog- 

 nizable before a military tribunal. When prisoners 

 of war conspire to escape, or are guilty of a breach 

 of appropriate and necessary rules of prison disci- 

 pline, they may be punished, but not without trial. 

 The commander who should order every prisoner 

 charged with improper conduct to be shot or hung, 

 would be guilty of a high offence against the laws of 

 war, and should be punished therefor, after a regular 

 military trial. If the culprit should be condemned 

 and executed, the commander would be as free from 

 guilt as if the man had been killed in battle. 



It is manifest, from what has been said, that mil- 

 itary tribunals exist under and according to the laws 

 and usages of war in the interests of justice and 

 mercy. They are established to save human life, and 

 to prevent cruelty^ as far as possible. The com- 

 mander of an army in time of war has the same power 

 to organize military tribunals and execute their judg- 

 ments that he has to set his squadrons in the field 

 and fight battles. His authority in each case is from 

 the law and usages of war. 



Having seen that there must be military tribunals 

 to decide questions arising in time of war betwixt 

 belligerents who are active and open enemies, let us 

 next see whether the laws of war do not authorize 

 such tribunal to determine the fate of those who 

 are active, but secret, participants in the hos- 

 tilities. 



In Mr. Wheaton's "Elements of International Law " 

 he says: " The effect of a state of war, lawfully de- 

 clared to exist, is to place all the subjects of each 

 belligerent power in a state of mutual hostility. The 

 usage of nations has modified this maxim by legaliz- 

 ing such acts of hostility only as are committed by 

 those who are authorized by, the express or implied 

 command of the State - } such are the regularly com- 

 missioned naval and military forces of the nation and 

 all others called out in its defence, or spontaneously 

 defending themselves, in case of necessity, without 

 any_ express authority for that purpose. Cicero tells 

 us in his ' Offices,' that by the Roman feudal law no 

 person could lawfully engage in battle with the pub- 

 lic enemy without being regularly enrolled and 

 taking the military. oath. This was a regulation 

 sanctioned both by policy and religion. The horrors 

 of war would indeed be greatly aggravated if overy 

 individual of the belligerent States were allowed to 

 plunder and slay_ indiscriminately the enemy's sub- 

 jects without being in any manner accountable for 

 his conduct. Hence it is that, in land wars, irreg- 

 ular bands of marauders are liable to be treated as 

 lawless banditti, not entitled to the protection of the 

 mitigated usages of war, as practised by civilized 

 nations." (Wheaton's "Elements of International 

 Law," page 406, 3d edition.) 



In spunking upon the subject of banditti, Patrick 

 Henry said, in the Virginia Convention: "The hon- 

 orable gentleman has given you an elaborate account 

 of what he judges tyrannical legislation, and an ex 

 post facto law (in the case of Josiah Phillips) ; he has 

 misrepresented the facts. That man was not ex- 

 ecutea by a tyrannical stroke of power, nor was he a 

 Socrates; he was a fugitive murderer and an out- 

 law; a man who commanded an infamous banditti, 

 and at a time when the war was at the most perilous 

 stage he committed the most cruel and shocking 

 barbarities; he was an enemy to the human name. 

 Those who declare war against the human race 

 may be struck out of existence as POOU as appre- 

 hended. He was not executed according to tlm-^ 

 beautiful legal ceremonies which are pointed out l>y 

 the laws in criminal cases. The enormity of bis 

 crimes did not entitle him to it. I am truly :i friend 

 to legal forms and methods, but, sir, the occasion 

 warranted the measure. A pirate, an outlaw, or a 

 common enemy to all mankind, may be put to death 

 at any time. It is justified by the faw ot nature and 



