Military Commissions. 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 according 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 which an army has to deal are of two classes: 1st. Open, active participants in hostilities, as soldiers who wear the uniform, move under the flag, and hold the appropriate commission from their government. 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 courtesies. 2d. Secret, but active participants, as spies, brigands, 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 posse comitatis of a civil magistrate. An army, like all other organized bodies, has a right, and it is its first duty, to protect its own existence, 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 Military Commissions. 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 killed, 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. Unless pressed thereto by the extremest necessity, the laws of war condemn and punish with great severity harsh or cruel treatment to a wounded enemy or a prisoner. Certain stipulations and agreements, tacit or express, betwixt the open belligerent parties, are permitted by the laws of war, and are held to be of very high and sacred character. Such is the tacit understanding, 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 regarded ambassadors betwixt belligerents as persons to be treated with consideration and respect. Plutarch, in his Life of Cæsar, tell us that the barbarians in Gaul having sent some ambassadors to Cæsar, he detained them, charging fraudulent practices, and led his army to battle, obtaining a great victory. When the Senate decreed festivals and sacrifices for victory, Cato declared it to be his opinion that Cæsar 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 Cæsar, he would not be delivered to the enemy but would be punished after a military trial. The many honorable gentlemen who hold commissions in the army of the United States, and have been deputed to Military Commisions. conduct 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 fellowsoldier who was guilty of wanton cruelty to a prisoner, or perfidy towards the bearers of a flag of truce. The laws of war permit capitulations of surrender and paroles. They are agreements betwixt belligerents, and should be scrupulously observed and performed. They are contracts wholly unknown to civil tribunals. Parties to such contracts must answer 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 if 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 law and usage of war contemplate that soldiers have a high sense of personal honor. The true soldier is proud to feel and to know that his enemy possesses 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 conduct is imputed, has a right to demand a trial. If such a demand can be rightfully made, surely it cannot 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 Military Commissions. Congress that authorizes it. In time of war the law and usage of war authorize it, and they are a 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 a request should be made before retaliatory measures are taken. Whether the laws of war have been infringed or not, is of necessity a question to be decided by the laws and usages of war, and is cognizable before a military tribunal. When prisoners of war conspire to escape or are guilty of a breach of appropriate and necessary rules of prison discipline, 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 military tribunals exist under and according to the laws and usages of war in the interest of justice and mercy. They are established to save human life, and to prevent cruelty as far as possible. The commander of an army in time of war has the same power to organize military tribunals and execute their judgments that he has to set his squadrons in the field and fight battles. His authority in each case is from the law and usage of war. Having seen that there must be military tribunals to decide questions arising in time of war betwixt belligerents who are open and active enemies, let us next see whether the laws of war do not authorize such tribunals to determine the fate of those who are active, but secret, participants in the hostilities. In Mr. Wheaton's Elements of International Law, he says: "The effect of a state of war, lawfully declared to exist, is to place all the subjects of each belligerent power in a state of mutual hostility. The usage of nations has vol. xi-20 Military Commissions. modified this maxim by legalizing 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 commissioned 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 public 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 every individual of the belligerent states were allowed to plunder and slay indiscriminately the enemy's subjects without being in any manner accountable for his conduct. Hence it is that, in land wars, irregular bands of marauders are liable to be treated as lawless banditti, not entitled to the protection of the mitigated usages of war as practiced by civilized nations." (Wheaton's Elements of International Law, p. 406, 3d edition.) In speaking upon the subject of banditti, Patrick Henry said, in the Virginia convention, "the honorable 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 executed by a tyrannical stroke of power; nor was he a Socrates; he was a fugitive murderer, and an outlaw; 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 soon as apprehended. He was not executed according to those beautiful legal ceremonies which are pointed out by the laws in criminal cases. The enormity of his crimes did not entitle him to it. I am truly a friend to legal forms and methods; but, sir, the occasion warranted the measure. A pirate, an outlaw, or a common enemy to all |