MILITARY COMMISSIONS. 



573 



condemned, and executed by a military tribunal with- 

 out a breach of the Constitution. A bushwhacker, a 

 jayhawker, a bandit, a war rebel, an assassin, being 

 public enemies, may be tried, condemned, and exe- 

 cuted as offenders against the laws of war. The sol- 

 dier that would fail to try a spy or bandit after his 

 capture would be as derelict in his duty as if he were 

 to fail to capture ; he is as much bound to try and 

 execute, if guilty, as he is to arrest : the same law 

 that makes it his duty to pursue and kill or capture, 

 makes it his duty to try according to the usages of 

 war. The judge of a civil court is not more strongly 

 bound under the Constitution and the law to try a 

 criminal than is the military to try an offender against 

 the laws of war. 



The fact that the civil courts are open does not 

 affect the right of the military tribunal to hold as a 

 prisoner and to try. The civil courts have no more 

 right to prevent the military, in time of war, from 

 trying an offende_r against the laws of war, than they 

 have a right to interfere with and prevent a battle. 

 A battle may be lawfully fought in the very view and 

 presence of a court ; so a spy, a bandit, or other of- 

 fender against the laws of war, may be tried, and 

 tried lawfully, when and where the civil courts are 

 open and transacting the usual business. 



The laws of war authorize human life to be taken 

 without legal process, or that legal process contem- 

 plated by those provisions in the Constitution that 

 are relied upon to show that military judicial tribu- 

 nals are unconstitutional. Wars should be prosecuted 

 justly as well as bravely. One enemy in the power 

 of another, whether he be an open or a secret one, 

 should not be punished or executed without a trial. 

 If the question be one concerning the laws of war, he 

 shall be tried by those engaged in the war ; they and 

 they only are his peers. The military must decide 

 whether he is or not an active participant in the hos- 

 tilities. If he is an active participant in the hostili- 

 ties, it is the duty of the military to take him a 

 prisoner without warrant or other judicial process, 

 and dispose of him as the laws of war direct. 



It is curious to see one and the same mind justify 

 the killing of thousands in battle because it is done 

 according to the laws of war, and yet condemning 

 the same law when, out of regard for justice and with 

 the hope of saving life, it orders a military trial be- 

 fore the enemy_ are killed. The love of law, of jus- 

 tice, and the wish to save life and suffering, should 

 impel all good men in time of war to uphold and sus- 

 tain the existence and action of such tribunals. The 

 object of such tribunal* is obviously intended to save 

 life, and when their jurisdiction is confined to of- 

 fences against the laws of war, that is their effect. 

 They prevent indiscriminate slaughter ; they prevent 

 men from being punished or killed upon mere sus- 

 picion. 



The law of nations, which is the result of experi- 

 ence and wisdom of ages, has decided that jayhawk- 

 ers, banditti, etc., are offenders against the laws of 

 nature and of war, and as such amenable to the mil- 

 itary. Our Constitution has made those laws a part 

 of the law of the land. Obedience to the Constitu- 

 tion and the law, then, requires that the military 

 should do their whole duty ; they must not only 

 meet and fight, the enemies of the country in open 

 battle, but thfiy must kill or take the secret enemies 

 of the country, and try and execute fhem according 

 to the laws of war. The civil tribunals of the coun- 

 try cannot rightfully interfere with the military in 

 the performance of their high, arduous, and perilous 

 but lawful duties. That Booth and his associates 

 were secret, active public enemies, no mind that con- 

 templates the facts can doubt. The exclamation 

 used by him when he escaped from the box on the 

 stage, after he had fired the fatal shot, " Sic semper 

 tyrannis," and his dying message, " Say to my moth- 

 er that I die for my country, show that he was 

 uot an assassin from private malice, but that he acted 

 as a public foe. Such a deed is expressly laid down 



by Vattel in his work on the law of nations, as an 

 offence against the laws of war, and a great crime. 

 " I give, then, the name of assassination to a treach- 

 erous murder, whether the perpetrators of the deed 

 be the subjects of the party whom we cause to be 

 assassinated or of our own sovereign, or that it be 

 executed by any other emissary introducing himself 

 as a suppliant, a refugee, or a deserter, or, in fine, as 

 a stranger." (Vatteli 339.) 



Neither the civil nor the military department of 

 the Government should regard itself as wiser and 

 better than the Constitution and the laws that exist 

 under or are made in pursuance thereof. Each de- 

 partment should, in peace and in war confining itself 

 to its own proper sphere of action, diligently and 

 fearlessly perform its legitimate functions, and in the 

 mode prescribed by the Constitution and the law. 

 Such obedience to and observance of law will main- 

 tain peace when it exists, and will soonest relieve 

 the country from the abnormal state of war. 



My conclusion, therefore, is, that if the persons 

 who are charged with the assassination of the Presi- 

 dent committed the deed as public enemies, as I be- 

 lieve they did and whether they did or not is a ques- 

 tion to be decided by the tribunal before which they 

 are tried they not only can, but ought to be, tried 

 before a military tribunal. If the persons charged 

 have offended against the laws of war, it would bo 

 as palpably wrong for the military to hand them 

 over to the "civil courts, as it would be wrong in a civil 

 court to convict a man of murder who had, in time 

 of war, killed another in battle. 



I am, sir, most respectfully, 



Your obedient servant, 

 JAMES SPEED, Attorney-General. 



To the President. 



Having received this opinion, the following 

 order was issued for the trial of the assassins : 



EXECUTIVE CHAMBER, WASHINGTON CITY, May 1, 1865. 



Whereas, the Attorney-General of the United 

 States has given his opinion that the persons impli- 

 cated in the murder of the late President Lincoln, 

 and the attempted assassination of the Hon. Wm. H. 

 Seward, Secretary of State, and an alleged conspir- 

 acy to assassinate other officers of the Federal Gov- 

 ernment at Washington City, and their aiders and 

 abettors, are subject to the jurisdiction of, and legally 

 triable before, a military commission, it is ordered : 



First. That the Assistant Adjutant-General detail 

 nine competent military officers to serve as a com- 

 mission for the trial of said parties, and that the 

 Judge Advocate General proceed to prefer charges 

 against said parties for their alleged offences, and 

 bring them to trial before said military commission ; 

 that said trial or trials be conducted by the said 

 Judge Advocate-General as recorded thereof in per- 

 son, aided by such assistant or special judge advo- 

 cates as he may designate, and that said trials be 

 conducted with all diligence consistent with the ends 

 of justice, and said commission to sit without regard 

 to hours. 



Second. That Brevet Maj.-Gen. Hart ran ft be as- 

 signed to duty as special Provost Marshal General 

 for the purpose of said trial and attendance upon 

 said commission and the execution of its mandates. 



Third. That the said commission establish such 

 order or rules of proceeding as may avoid unneces- 

 sary delay, and conduct to the ends of public justice. 



(Signed) ANDREW JOHNSON. 



Adj't.-General's Office, Washington, D. C., May 

 16, 1865. (Official copv). 



(Signed) W. A. NICHOLS, A. A. Gen 



In compliance with this order, the following 

 officers were detailed as members of the mili- 

 tary commission: 



President, Maj-Gen. David Hunter. 



Members. Maj.-Gen. Lew Wallace, Brevet 

 Maj.-Gen. August V. Kautz, Brig.-Gen. Albion 



