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section of country where there is no civil court practicable to try him, a military commission has jurisdiction.
2d. It has power to try persons in the service of the enemy for violation of the common laws of war.
Thus, during the Mexican war a number of Mexican officers were captured and released on parol; they were afterwards recaptured fighting against our army. General Scott very properly brought them before a military commission, which tried them, sentenced them to be hung, and they were executed.
It likewise has power to try persons in the enemy's service for the ordinary civil offenses, and would try them, especially when committed in a section of country where the ordinary criminal courts are closed by the fact of
3d. It has jurisdiction over citizens in certain cases, but the most difficulty arises in determining these cases.
In a military department under martial law, when the ordinary criminal jurisdiction both of the United States and State courts is suspended, or the offense is not cognizable by the courts in session, the military commission has jurisdiction. But in Ex parte Milligan, the Supreme Court in December, 1866, held that a citizen, not connected with the military service, and resident in a State where the courts are open and in the proper exercise of their jurisdiction, cannot, even when the privilege of the writ of habeas corpus is suspended, be tried, convicted, or sentenced otherwise than by the ordinary courts of law.?
The court, as we saw in Chapter I, went much farther than this, holding that it was not in the power of Congress to grant jurisdiction in such cases to a military commission; to which four of the nine judges dissented.3 This minority view, as we pointed out in Chapter I, seems to accord with the practice of the government. Under the act of Congress of March 2d, 1867—empowering district commanders to substitute in the rebel states, for the trial of all criminals, military commissions in the place of civil courts—one James Weaver, a citizen of Texas, was tried for murder in 1868, by a military commission, and sentenced to be hung; and this, notwithstanding the courts were in session, and an indictment pending against him before the state courts for the same offense. The question as to the jurisdiction of the military commission was submitted to the Attorney-General, who decided in the affirmative. He said, “The rights of war do not necessarily terminate with the cessation of actual hostilities. I have no doubt that it is competent to the nation to retain the territory and the people which have once assumed a hostile and belligerent character, within the grasp of war' until the work of restoring the relations of peace can be accomplished, and that it is for Congress, the department of the national government to which the power to declare war is entrusted by the Constitution, to determine when the war has so far ended that the work can be safely and successfully completed."
1 See G. 0. 100, 1863.
? 4 Wallace, 4. 8 For their opinion see Chapter I.
Again, in 1873, the question arose as to the right to try certain of the Modoc Indians by military commission after the war had ceased. The Attorney-General held that it had jurisdiction; that although the war was practically ended, it was the right of the United States, as there was no agreement for peace, to determine for themselves whether or not any thing new ought to be done for the protection of the country, or the punishment of crimes growing out of the war.?
· XIII. Opinions Attorney-General, p. 65.
In the case of the assassins of President Lincoln, the courts of the District of Columbia being open, the Attorney-General held that if the persons who are charged with the assassination committed the deed as public enemies, —and whether they did or not was a question to be decided by the tribunal before which they are tried—they not only can but ought to be tried by military commission.
As to Place. The jurisdiction of a military commission, like that of a general court-martial, is not confined to the place of the commission of the offense, but is coextensive with the limits of the federal domain, and extends to any military department in which, on account of facilities for obtaining testimony or for other good reasons, it may be convenient to bring a case to trial.2
As to Time. It would seem, especially in the ordinary criminal offenses, that the two years' limitation prescribed for courts-martial should not apply to military commissions; but to subject military commissions partly to the laws and practice which govern civil courts, and partly to those which control courts-martial, would be to destroy the harmony between the two different military tribunals, and to embarrass the administration of military justice; the two years' limitation therefore applies.
Procedure. The forms of procedure, as before stated, are the same as before courts-martial; formal charges are preferred; the accused has the right of challenge and of counsel; he has the right to cross-examine witnesses before the court; to produce witnesses of his own; and to make a statement.
Oath. The members and the judge-advocate take the oath prescribed for the same officers in a general courtmartial.
1 XI. Opinions Attorney General, p. 297. • Opinions J. A. G., p. 225. 8 Ibid, p. 223.
Punishments. The punishments which military commissions can inflict are regulated by the laws and usages of war adopted by civilized nations. A two-thirds' vote is held necessary where a death sentence is inflicted, and such sentences would, under our present laws, require the approval of the President.
Record. The record is made up in the same way, and authenticated in like manner as court-martial proceedings.
Confirmation. The proceedings are forwarded to the officer who convenes the court, who is required to act upon them and has the same power over them as over court-martial proceedings. He may approve, disapprove, or order them back for revision.
Copy. The proceedings are filed in the JudgeAdvocate General's office; and, while the accused is not entitled by law to a copy, it may be furnished by the Secretary of War on proper application.
Review by Civil Courts. The proceedings of a military commission are not subject to review by the civil authorities. In the case of Mr. Vallandingham, tried by a military commission and sentenced to be confined at a military prison during the war, the Supreme Court decided that, not being a judicial court within the meaning of the 14th Sec. of the Judiciary Act of 1789, it could not issue a writ of habeas corpus ad subjiciendum to review or reverse its proceedings, or a writ of certiorari to revise the proceedings of a military commission.'
Provost Judge or Court. During our late war general officers, commanding a department in which the ordinary criminal courts were suspended, appointed a provost judge or court for the trial of minor offenses. This court consisted of a single person, sometimes a
· Ex parte Vallandingham, 1 Wallace, p. 243.
citizen and sometimes an officer, and derived its authority from the same source as military commissions.
The jurisdiction of these courts, says the Judge-Advocate General, should be confined to cases of police merely, to wit, such cases as are summarily disposed of daily by the police courts in our large cities, as, for instance, cases of drunkenness, disorderly conduct, assault and battery, and of violation of such civil ordinances and military regulations as may be in force for the government of the locality. The provost judge supplies the place of the local police magistrate in promptly acting upon the class of cases described, without, at the same time, being necessitated (as a formal military commission would be) to preserve a detailed record of the testimony and proceed. ings in each case. But he should not assume to take cognizance, on the one hand, of the offenses committed by soldiers in violation of any article of war, or of the regulations of the service; or, on the other hand, of the offenses of civilians of a strict military character, as for instance, those in violation of the laws and custom of war, and so properly triable by a military commission.'
Opinions J. A. G., p. 303.