572 



MILITARY COMMISSIONS. 



" The trial of all crimes, except in cases of im- 



Kachment shall be by the jury ; and such trial shall 

 held in the State where the said crime shall have 

 been committed; but when not committed within 

 any State the trial shall be at such place or places as 

 the Congress may by law have directed." (Art. III. 

 of the original Constitution, sec. 2.) 



" No person shall be held to answer for a capital 

 or otherwise infamous crime unless on a presentment 

 or indictment of a grand jury, except in cases aris- 

 ing in the land or naval forces, or in the militia 

 when in actual service, in time of war or of public 

 danger; nor shall any person be subject for the same 

 offence to be twice put in jeopardy of life or limb, 

 nor shall be compelled, in any criminal case, to be 

 witness against himself, nor be deprived of life, lib- 

 erty, or property, without due process of law; nor 

 shall private property be taken for public use with- 

 out just compensation." (Amendments to the Con- 

 stitution, Art. V.) 



"In all criminal prosecutions, the accused shall 

 enjoy the right to a speedy and public trial by an 

 impartial jury of the State and district wherein the 

 crime shall have been committed, which district shall 

 have been previously ascertained by law, and be in- 

 formed of the nature" and cause of the accusation ; to 

 be confronted with the witnesses against him, to 

 have compulsory process for obtaining witnesses in 

 his favor, and to have the assistance of counsel for 

 his defence." (Art. VI. of Amendments to the Con- 

 stitution.) 



These provisions of the Constitution are intended 

 to fling around the life, liberty, and property of a 

 citizen all the guaranties of a jury trial. These con- 

 stitutional guaranties cannot be estimated too highly 

 or protected too sacredly. The reader of history 

 knows that for many weary ages the people suffered 

 for the want of them ; it would not only be stupidity, 

 but madness, in us not to preserve them. No man 

 has a deeper conviction of their value, or a more sin- 

 cere desire to preserve and perpetuate them, than I 

 have. 



Nevertheless, these exalted and sacred provisions 

 of the Constitution must not be read alone and by 

 themselves, but must be read and taken in conuec- 

 tion with other provisions. The Constitution was 

 framed by great men, men of learning and large ex- 

 perience, and it is a wonderful monument of their 

 wisdom. Well versed in the history of the world, 

 they knew that the nation for which they were form- 

 ing a government would, unless all history was false, 

 have wars, foreign and domestic. Hence the Gov- 

 ernment framed by them is clothed with the power 

 to make and carry on war. As has been shown, 

 when war comes, the laws of war come with it. In- 

 fractions of the laws of nations are not denominated 

 crimes, but offences. Hence the expression in the 

 Constitution that " Congress shall have power to de- 

 fine and punish * * * offences against the laws of 

 nations. Many of the offences against the law of 

 nations for which a man may, by the laws of war, 

 lose his life, his liberty, or his property, are not 

 crimes. It is an offence against the law of nations 

 to break a lawful blockade, and for which a forfeiture 

 of the property is the penalty, and yet the running a 

 blockade has never been regarded as a crime. To 

 hold communication or intercourse with the enemy 

 is a high offence against the laws of war, and for 

 which those laws prescribe punishment, and yet it is 

 not a crime; to act as a spy is an offence against the 

 laws of war, and the punishment for which, in all 

 ages, has been death, and yet it is not a crime ; to 

 violate a flag of truce is an offence against the laws 

 of war, and yet is not a crime of which a civil court 

 can take cognizance; to unite with banditti, jay- 

 hawkers, guerrillas, or any other unauthorized ma- 

 rauders, is a high offence against the laws of war : 

 the offence is complete when the band is organized 

 or joined. The atrocities committed by such a band 

 do not constitute the offence, but make the reasons, 



and sufficient reasons they are, why such banditti 

 are denounced by the laws of war. Some of the of- 

 fences against the laws of war are crimes, and some 

 are not. Because they are not crimes they do not cease 

 to be offences against those laws ; nor because they 

 are not crimes or misdemeanors do they fail to be 

 offences against the laws of war. Murder is a crime, 

 and the murderer, as such, must be proceeded against 

 in the form and manner prescribed in the Constitu- 

 tion. In committing the murder an offence may also 

 have been committed against the laws of war ; for 

 that offence he must answer to the laws of war, and 

 the tribunals legalized by that law. 



There is, then, an apparent but no real conflict in 

 the constitutional provisions. Offences against the 

 laws of war must be dealt with and punished under 

 the Constitution as the laws of war, they being a part 

 of the law of nations, direct ; crimes must be dealt 

 with and punished as the Constitution, and laws 

 made in pursuance thereof, may direct. 



Congress has not undertaken to define the code of 

 war, nor to punish offences against it. In the case 

 of a spy, Congress has undertaken to say who shall 

 be deemed a spy, and how he shall be punished. But 

 every lawyer knows that a spy was a well-known of- 

 fender under the laws of war, and that under and ac- 

 cording to those laws he could have been tried and 

 punished without an act of Congress. This is ad- 

 mitted by the act of Congress when it says that he 

 shall suffer death "according to the law and usages 

 of war." The act is simply declaratory of the law. 



That portion of the Constitution which declares 

 that "no person shall be deprived of his life, liberty, 

 or property, without due process of law," has such 

 direct reference to, and connection with, trials for 

 crime or criminal prosecutions, that comment upon it 

 would seem to be unnecessary. Trials for offences 

 against the laws of war are not embraced or intended 

 to be embraced in those provisions. If this is not so, 

 then every man that kills another in battle is a mur- 

 derer, for he deprived "a person of life without that 

 due process of law " contemplated by this provision; 

 every man who holds another as a prisoner of war is 

 liable for false imprisonment, as he does so without 

 that due process of law contemplated by this provi- 

 sion ; every soldier that marches across a field in bat- 

 tle array is liable to an action of trespass, because he 

 does it without that same due process. The argu- 

 ment that flings around offenders against the laws of 

 war these guaranties of the Constitution would con- 

 vict all the soldiers of our army of murder ; no pris- 

 oners could be taken or held ; the army could not 

 move. The absurd consequences that would of ne- 

 cessity flow from such an argument show that it can- 

 not be the true construction it cannot be what was 

 intended by the framers of the instrument. One of 

 the prime motives for the Union and a Federal Gov- 

 ernment was to confer the powers of war. If any of 

 the provisions of the Constitution are so in conflict 

 with the power to carry on a war as to destroy and 

 make it valueless, then the instrument, instead of 

 being a great and wise one, is a miserable failure. 

 a .few de se. 



If a man should sue out his writ of Tvdbeas corput, 

 and the return shows that he belonged to the army 

 or navy, and was held to be tried for some offence 

 against the ruhjs and articles of war, the writ should 

 be dismissed, and the party remanded to answer the 

 charges. So, in time of war, if a man should SHO 

 out a writ of habeas corpus, and it is made to appear 

 that he is in the hands of the military as a pri 

 of war, the writ should be dismissed, and the prisciin- 

 remanded to be disposed of as the laws and usai 

 war require. If the prisoner be a regular unoffend- 

 ing soldier of the opposing party to the war he should 

 be treated with all the courtesy and kindness con- 

 sistent with his safe custody; if he has ofl 

 against the laws of war, he should have such tnul 

 and be punished as the laws of war require. 



A spy, though a prisoner of war, may be tried, 



