MILITARY COMMISSIONS. 



571 



nations." (3d volume Elliott's "Debates on the 

 Federal Constitution," page 140.) 



No reader, not to say student, of the law of nations 

 can doubt but that Mr. Wheaton and Mr. Henry 

 have fairly stated the laws of war. Let it be con- 

 stantly borne in mind that they are talking of the 

 law in a state of war. These banditti that spring up 

 in time of war are respecters of no law, human or 

 divine, of peace or of war ; are 7t,ostes liumani generis, 

 \ and may be hunted down like wolves. Thoroughly 

 , desperate and perfectly lawless, no man can be re- 

 quired to peril his life in venturing to take them 

 prisoners as prisoners, no trust can be reposed in 

 them. But they are occasionally made prisoners. 

 Being prisoners, what is to be done with them? If 

 they are public enemies, assuming and exercising 

 the right to kill, and are not regularly authorized to 

 do so, they must be apprehended and dealt with by 

 the military. No man can doubt the right and duty 

 of the military to make prisoners of them, and, being 

 public enemies, it is the duty of the military to pun- 

 ish them for any infraction of the laws of war. But 

 the military cannot ascertain whether they are guilty 

 or not without the aid of a military tribunal. 



In all wars, and especially in civil wars, secret but 

 active enemies are almost as numerous as open ones. 

 That fact has contributed to make civil wars such 

 scourges to the countries in which' they rage. In 

 nearly all foreign wars the contending parties speak 

 different languages, and have different habits and 

 manners ; but in most civil wars that is not the case, 

 hence there is a security in participating secretly in 

 hostilities that induces many to thus engage. War, 

 prosecuted according to the most civilized usage, is 

 horrible ; but its horrors are greatly aggravated by 

 the immemorial habits of plunder, rape, and murder 



Eractised by secret but active participants. Certain 

 iws and usages have been adopted by the civilized 

 world in wars between nations that are not of kin to 

 one another, for the purpose and to the effect of ar- 

 resting or softening many of the necessary cruel 

 , consequences of war. How strongly bound are we, 

 then, in the midst of a great war, where brother and 

 personal friend are fighting against brother and 

 friend, to adopt and be governed by those laws and 



A public enemy must or should be dealt with in all 

 vrars by the same laws. The fact that they are pub- 

 lic enemies, being the same, they should deal with 

 each other according to those laws of war that ar'e 

 contemplated by the Constitution. Whatever rules 

 have been adopted and practised by the civilized na- 

 tions of the world in war to soften its harshness and 

 severity should be adopted and practised by us in 

 this war. That the laws of war authorized com- 

 manders to create and establish military commissions, 

 courts, or tribunals, for the trial of offenders against 

 the laws of war, whether they be active or secret par- 

 ticipants in the hostilities, cannot be denied. That 

 the judgments of such tribunals may have been 

 sometimes harsh, and sometimes even tyrannical, 

 does not prove that they ought not to exist, nor does 

 it prove that they are not constituted in the interest 

 of justice and mercy. Considering the power that 

 the laws of war give over secret participants in hos- 

 tilities, such as banditti, guerrillas, spies.etc., the posi- 

 tion of a commander would be miserable indeed, if he 

 could not call to his aid the judgments of such tri- 

 bunals; he would become a mere butcher of men, 

 without the power to ascertain justice, and there can 

 be no mercy where there is no justice. War, in its 

 mildest form, is horrible ; but take away from the 

 contending armies the ability and right to organize 

 what is now known as a Bureau of Military Justice, 

 they would soon become monster savages, unre- 

 strained by any and all ideas of law and justice. 

 Surely no lover of mankind, no one that respects 

 law and order, no one that has the instinct of jus- 

 tice, or that can be softened by mercy, would in time 

 of war take away from the commanders the right to 



organize military tribunals of justice, and especially 

 such tribunals for the protection of persons charged 

 or suspected with being secret foes and participants 

 in the hostilities. It would be a miracle if the rec- 

 ords and history of this war do not show occasional 

 cases in which those tribunals have erred ; but they 

 will show many, very many cases in which human 

 life would have been taken, but for the interposition 

 and judgments of those tribunals. Every student of 

 the laws of war must acknowledge that such tribu- 

 nals exert a kindly and benign influence in time of 

 war. Impartial history will record the fact that the 

 Bureau of Military Justice, regularly organized dur- 

 ing this war, has saved human life and prevented 

 human suffering. The greatest suffering patiently 

 endured by our soldiers, and the hardest battles gal- 

 lantly fought during this protracted struggle, are 

 not more creditable to the American character than 

 the establishment of this bureau. This people have 

 such an educated and profound respect for law and 

 justice such a love of mercy that they have, in 

 the midst of this greatest of civil wars, systematized 

 and brought into regular order tribunals that before 

 this war existed under the law of war, but without 



feneral rule. To condemn the tribunals that have 

 een established under this bureau is to condemn 

 and denounce the war itself, or, justifying the war, 

 to insist that it shall be prosecuted according to the 

 harshest rules, and without the aid of the laws, 

 usages, and customary agencies for mitigating those 

 rules. If such tribunals had not existed before, 

 under the laws and usages of war, the American citi- 

 zen might as proudly p_oint to their establishment as 

 to our inimitable and inestimable constitutions. It 

 must be constantly borne in mind that such tribunals 

 and such a bureau cannot exist except in time of 

 war, and cannot then take cognizance of offenders 

 or offences where the civil courts are open, except 

 offenders or offences against the laws of war. 



But it is insisted by some, and doubtless with hon- 

 esty, and with a zeal commensurate with their hon- 

 esty, that such military tribunals can have no con- 

 stitutional existence. The argument against their 

 constitutionality may be shortly, and I think fairly, 

 stated thus : 



Congress alone can establish military or judicial 

 tribunals. As Congress has not established military 

 tribunals, except such as have been created under 

 the articles of war, and which articles are made in 

 pursuance of that clause in the Constitution which 

 gives to Congress the power to make rules for the 

 government of the army and navy, any other tribu- 

 nal is and must be plainly unconstitutional, and all 

 its acts void. This objection thus stated, or stated 

 in any other way, begs the question. It assumes 

 that Congress alone can establish military or judicial 

 tribunals". Is that assumption true ? 



We have seen that when war comes, the laws and 

 usages of war come also, and that during the war 

 they are part of the laws of the land. Under the 

 Constitution, Congress may define and punish of- 

 fences against those laws, but in default of Congress's 

 defining those laws and prescribing a punishment 

 for their infraction, and the mode of proceeding to 

 ascertain whether an offence has been committed, 

 and what punishment is to be inflicted, the army 

 must be governed by the laws and usages of war as 

 understood and practised by the civilized nations of 

 the world. It has been abundantly shown that these 

 tribunals are constituted by the army in the interest 

 of justice and mercy, and for the purpose and to the 

 effect of mitigating the horrors of war. 



But it may be insisted that though the laws of 

 war being a" part of the law of nations, constitute 

 a part of the laws of the laud, those laws must 

 be regarded as modified so far and whenever they 

 come in direct conflict with plain constitutional pro- 

 visions. The following clauses of the Constitution 

 are principally relied upon to show the conflict be- 

 twixt the laws of war and the Constitution : 



