OPINION ON THE
CONSTITUTIONAL
POWER
OF THE MILITARY
TO TRY AND EXECUTE THE ASSASSINS OF THE PRESIDENT.
BY ATTORNEY GENERAL JAMES SPEED.
ATTORNEY GENERAL'S OFFICE
Washington, July — , 1865.
SIR: You ask me whether the persons charged with the
offense
of having
assassinated the President can be tried before a
military tribunal, or
must they be tried before a civil court. The President
was assassinated
at a theater in the city of Washington. At the time of
the
assassination
a civil war as flagrant, the city of Washington was
defended by
fortifications
regularly and constantly manned, the principal police of
the city was
by
Federal soldiers, the public offices and property in the
city were all
guarded by soldiers, and the President's House and
person were, or
should
have been, under the guard of soldiers. Martial law had
been declared
in
the District of Columbia, but the civil courts were open
and held their
regular sessions, and transacted business as in times of
peace.
Such being the facts, the question is one of great
importance—
important,
because it involves the constitutional guarantees thrown
about the
rights
of the citizen, and because the security of the army and
the government
in time of war is involved; important, as it involves a
seeming
conflict
between the laws of peace and of war.
Having given the question propounded the patient and
earnest
consideration
its magnitude and importance require, I will proceed to
give the reasons
why I am of the opinion that the conspirators not only
may but ought to
be tried by a military tribunal.
A civil court of the United States is created by a law
of
Congress,
under and according to the Constitution. To the
Constitution and the
law
we must look to ascertain how the court is constituted,
the limits of
its
jurisdiction, and what its mode of procedure. A military
tribunal
exists
under and according to the Constitution in time of war.
Congress may
prescribe
how all such tribunals are to be constituted, what shall
be their
jurisdiction,
and mode of procedure. Should Congress fail to create
such tribunals,
then,
under the Constitution, they must be constituted
according to the laws
and usages of civilized warfare. They may take
cognizance of such
offenses
as the laws of war permit; they must proceed according
to the customary
usages of such tribunals in time of war, and inflict
such punishments
as
are sanctioned by the practice of civilized nations in
time of war. In
time of peace, neither Congress nor the military can
create any
military
tribunals, except such as are made in pursuance of that
clause of the
Constitution
which gives to Congress the power "to make rules for the
government of
the land and naval forces." I do not think that Congress
can, in time
of
war or peace, under this clause of the Constitution,
create military
tribunals
for the adjudication of offenses committed by persons
not engaged in,
or
belonging to, such forces. This is a proposition too
plain for
argument.
But it does not follow that because such military
tribunals can not be
created by Congress under this clause, that they can not
be created at
all. Is there no other power conferred by the
Constitution upon
Congress
or the military, under which such tribunals may be
created in time of
war?
That the law of nations constitutes a part of the laws
of the
land,
must be admitted. The laws of nations are expressly made
laws of the
land
by the Constitution, when it says that "Congress shall
have power to
define
and punish piracies and felonies committed on the high
seas and
offenses
against the laws of nations." To define is to give the
limits or
precise
meaning of a word or thing in being; to make, it is to
call into being.
Congress has the power to define, not to make, the laws
of nations; but
Congress has the power to make rules for the government
of the army and
navy. From the very face of the Constitution, then, it
is evident that
the laws of nations do constitute a part of the laws of
the land. But
very
soon after the organization of the Federal Government,
Mr. Randolph,
then
Attorney General, said: "The law of nations, although
not specifically
adopted by the Constitution, is essentially a part of
the law of the
land.
Its obligation commences and runs with the existence of
a nation,
subject
to modification on some points of indifference."
The framers of
the
Constitution knew that a nation could not maintain an
honorable place
among
the nations of the world that does not regard the great
and essential
principles
of the law of nations as a part of the law of the land.
Hence Congress
may define those laws, but can not abrogate them, or as
Mr. Randolph
says,
may "modify on some points of indifference."
That the laws of nations constitute a part of the laws
of the
land is
established from the face of the Constitution, upon
principle and by
authority.
But the laws of war constitute much the greater part of
the law of
nations.
Like the other laws of nations, they exist and are of
binding force
upon
the departments and citizens of the Government, though
not defined by
any
law of Congress. No one that has ever glanced at the
many treatises
that
have been published in different ages of the world by
great, good and
learned
men, can fail to know that the laws of war constitute a
part of the law
of nations, and that those laws have been prescribed
with tolerable
accuracy.
Congress can declare war. When war is declared, it must
be,
under the
Constitution, carried on according to the known laws and
usages of war
among civilized nations. Under the power to define those
laws, Congress
can not abrogate them or authorize their infraction. The
Constitution
does
not permit this Government to prosecute a war as an
uncivilized and
barbarous
people.
As war is required by the frame-work of our government
to be
prosecuted
according to the known usages of war among the civilized
nations of the
earth, it is important to understand what are the
obligations, duties,
and responsibilities imposed by war upon the military.
Congress, not
having
defined, as under the Constitution it might have done,
the laws of war,
we must look to the usage of nations to ascertain the
powers conferred
in war, on whom the exercise of such powers devolve,
over whom, and to
what extent to those powers reach, and in how far the
citizen and the
soldier
are bound by the legitimate use thereof.
The power conferred by war is, of course, adequate to
the end
to be
accomplished, and not greater than what is necessary to
be
accomplished.
The law of war, like every other code of laws, declares
what shall not
be done, and does not say what may be done. The
legitimate use of the
great
power of war, or rather the prohibitions against the use
of that power,
increase or diminish as the necessity of the case
demands. When a city
is besieged and hard pressed, the commander may exert an
authority over
the non-combatants which he may not when no enemy is
near.
All wars against a domestic enemy or to repel
invasions, are
prosecuted
to preserve the Government. If the invading force can be
overcome by
the
ordinary civil police of a country, it should be done
without bringing
upon the country the terrible scourge of war; if a
commotion or
insurrection
can be put down by the ordinary process of law, the
military should be
called out. A defensive foreign war is declared and
carried on because
the civil police is inadequate to repel it; a civil war
is waged
because
the laws cannot be peacefully enforced by the ordinary
tribunals of the
country through civil process and by civil officers.
Because of the
utter
inability to keep the peace and maintain order by the
customary
officers
and agencies in time of peace, armies are organized and
put into the
field.
They are called out and invested with the powers of war
to prevent
total
anarchy and to preserve the Government. Peace is the
normal condition
of
a country, and war abnormal, neither being without law,
but each having
laws appropriate to the condition of society. The
maxim enter
arma
silent leges is never wholly true. The object of war is
to bring
society
out of its abnormal condition; and the laws of war aim
to have that
done
with the least possible injury to persons or property.
Anciently, when two nations were at war, the conqueror
had, or
asserted,
the right to take from enemy his life, liberty and
property: if either
was spared, it was as a favor or act of mercy. By the
laws of nations,
and of war as a part, thereof, the conqueror was
deprived of this
right.
When two governments, foreign to each other, are at
war, or
when a civil
war becomes territorial, all of the people of the
respective
belligerents
become by the law of nations the enemies of each other.
As enemies they
can not hold intercourse, but neither can kill or injure
the other
except
under
a commission from their respective governments. So
humanizing have
been,
and are the laws of war, that it is a high offense
against them to kill
an enemy without such commission. The laws of war demand
that a man
shall
not take human life except under a license from his
government; and
under
the Constitution of the United States no license can be
given by any
department
of the Government to take human life in war, except
according to the
law
and usages of war. Soldiers regularly in the service
have the license
of
the government to deprive men, the active enemies of
their government,
of their 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:
1. 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 every
cheerfully
extends those courtesies.
2. Secret, but active participants, as spies, brigands,
bushwackers,
jayhawkers, war rebels and assassins. In all wars, and
especially in
civil
wars, such secret, active enemies rise up to annoy
attack and army, and
must be met and put down by the army. When lawless
wretches become so
impudent
and powerful as to not 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 comitatus 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 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 solider 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
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
Caesar, tells us that the barbarians in Gaul having sent
some
ambassadors
to Caesar, he detained them, charging fraudulent
practices, and led his
army to battle, obtaining a great victory.
When the Senate decreed festivals and sacrifices for
the
victory, Cato
declared it to be his opinion that Caesar 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 Caesar,
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 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
fellow-soldier
who was guilty of wanton cruelty to a prisoner, or
perfidy toward 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 laws and usages of war contemplate that soldiers
have a
high sense
of personal honor. The true soldier is proud to feel and
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 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 can not 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 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 offense
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 laws and usages 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 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 national and all others
called out in its
defense,
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." In
speaking
on 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 crime 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 mankind, may be put
to death at any
time. It is justified by the law of nature and nations."
(3d volume
Elliott's
Debates on 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 constantly 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 hotes
humani generis,
and may be hunted down like wolves. Thoroughly
desperate, and perfectly
lawless, no man can be required 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 punish them for any
infraction of the laws
of war. But the military can not 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 practiced by secret,
but active
participants.
Certain laws and usages have been adopted by the
civilized world in
wars
between nations that are not kin to one another, for the
purpose and to
the effect of arresting or softening many of the
necessary cruel
consequences
of war. How strongly bound we are, 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 usages.
A public enemy must or should be dealt with in all wars
by the
same
laws. The fact that they are public enemies, being the
same, they
should
deal with each other according to those laws of war that
are
contemplated
by the Constitution. Whatever rules have been adopted
and practiced by
the civilized nations of the world in war, to soften its
harshness and
severity, should be adopted and practiced by us in this
war. That the
laws
of war authorized commanders 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 participants in the
hostilities, can
not
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 hostilities, such as banditti,
guerrillas,
spies,
etc., the position of a commander would be miserable
indeed if he could
not call to his aid the judgments of such tribunals; 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, unrestrained by any and all ideas of
law and justice.
Surely no lover of mankind, no one that respects law and
order, no one
that the instinct of justice, 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 records
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 tribunals
exert
a kindly and benign influence in time of war. Impartial
history will
record
the fact the Bureau of Military Justice, regularly
organized during
this
war, has saved human life and prevented human suffering.
The greatest
suffering,
patiently endured by soldiers, and the hardest battles
gallantly 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 general rule. To
condemn the
tribunals
that have been 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
citizen
might as proudly point to their establishments as to our
inimitable and
inestimable constitutions. It must be constantly borne
in mind that
such
tribunals and such a bureau can not exist except in time
of war, and
can
not then take cognizance of offenders and offenses
against the laws of
war.
But it is insisted by some, and doubtless with honesty,
and
with a zeal
commensurate with their honesty, that such military
tribunals can have
no constitutional existence. The argument against their
constitutionality
may be shortly, and I think fairly, stated thus:
Congress alone can
establish
military or civil 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, and any other tribunal 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
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 a part of the
laws of the land. Under the Constitution, Congress may
define and
punish
offenses against those laws, but in default of Congress
defining those
laws and prescribing a punishment for their infraction,
and the mode of
proceeding to ascertain whether an offense 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 practiced 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
land, that
those
laws must be regarded as modified so far, and whenever
they come in
direct
conflict with plain constitutional provisions. The
following clauses of
the Constitution are principally relied upon to show the
conflict
betwixt
the laws of war and the Constitution:
"The trial of all crimes,
except in
cases of
impeachment, shall be by the jury; and such trial
shall be 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 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 arising in the land or naval forces, or in
the militia when in
actual service, in time of war or public danger; nor
shall any person
be
subject for the same offense 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, liberty or property,
without due process
of law; nor shall private property be taken for
public use without just
compensation." (Amendments
to the Constitution, Art. V.)
"In all criminal prosecutions, the
accused
shall enjoy
the right of 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 informed 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 defense." (Art. VI of the amendments to the Constitution.)
These provisions of the Constitution are intended to fling
around the
life,
liberty and property of a citizen all the guarantees of a
jury trial.
These
constitutional guarantees can not 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 sincere desire to preserve and perpetuate
them than I
have.
Nevertheless, these exalted and sacred provisions of
the
Constitution
must be read alone and by themselves, but must be read
and taken in
connexion
with other provisions. The Constitution was framed by
great men— men of
learning and large experience, 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 forming a government would, unless
all history is
false,
have wars, foreign and domestic. Hence the government
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. Infractions of
the laws of
nations
are not denominated crimes, but offenses. Hence the
expression in the
Constitution
that "Congress shall have power to define and punish
offenses against
the
law of nations." Many of the offenses against the law of
nations for
which
a man may lose his life, his liberty or his property are
not crimes. It
is an offense 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
of a blockade has never been regarded a crime; to hold
communication or
intercourse with the enemy is a high offense 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 offense 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 offense against the laws of war,
and yet not a
crime
of which a civil court can take cognizance; to unite
with banditti,
jayhawkers,
guerrillas or any other unauthorized marauders is a high
offense
against
the laws of war; the offense is complete when the band
is organized or
joined. The atrocities committed by such a band do not
constitute the
offense,
but make the reasons, and sufficient reasons they are,
why such
banditti
are denounced by the laws of war. Some of the offenses
against the laws
of war are crimes, and some not. Because they are crimes
they do not
cease
to be offenses against those laws; nor because they are
not crimes or
misdemeanors
do they fail to be offenses 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 Constitution; in committing the murder
an offense may
also have been committed against the laws of war; for
that offense 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. Offenses against the law must be dealt with
and punished
under
the Constitution, as the laws of war, they being part of
the law of
nations;
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
offenses 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 offender under the
laws of war, and
that
under and according to those laws he could have been
tried and punished
without an act of Congress. This is admitted 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 offenses 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 murderer, for he deprived a
"person of
life
without that due process of law" contemplated by this
provision; every
man that holds another as a prisoner of war is liable
for false
imprisonment,
as he does so without that same due process. The
argument that flings
around
offenders against the laws of war these guarantees of
the Constitution
would convict all the soldiers of our army of murder; no
prisoners
could
be taken and held; the army could not move. The absurd
consequences
that
would of necessity flow from such an argument show that
it can not be
the
true construction— it can not be what was intended by
the framers of
the
instrument. One of the prime motives for the Union and a
Federal
Government
was to confer the powers of war. If any provisions of
the Constitution
are so in conflict with the power to carry on war as to
destroy and
make
it valueless, then the instrument, instead of being a
great and wise
one,
is a miserable failure, a felo de se.
If a man should sue out his writ of habeas corpus, and
the return shows
that he belonged to the army or navy, and was held to be
tried for some
offense against the rules and articles of war, the writ
should be
dismissed,
and the party remanded to answer to the charges. So, in
time of war, if
a man should sue out a writ of habeas corpus, and it is
made to appear
that he is in the hands of the military as a prisoner of
war, the writ
should be dismissed and the prisoner remanded to be
disposed of as the
laws and usages of war require. If the prisoner be a
regular
unoffending
soldier of the opposing party to the war, he should be
treated with all
the courtesy and kindness consistent with his safe
custody; if he has
offended
against the laws of war, he should have such trial and
be punished as
the
laws of war require. A spy, though a prisoner of war,
may be tried,
condemned
and executed by a military tribunal without a breach of
the
Constitution.
A bushwacker, a jayhawker, a bandit, a war rebel, an
assassin, being
public
enemies, may be tried, condemned and executed as
offenders against the
laws of war. The soldier that would fail to try or spy
or bandit after
his capture, would be as derelict in duty as if he were
to fail to
capture;
he is as much bound to try and to 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 offender 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, or bandit or
other offender
against
the law 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 authorized human life to be taken
without
legal process,
or that legal process contemplated by those provisions
in the
Constitution
that are relied upon to show that military judicial
tribunals 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 trial. If the question be once
concerning the laws
of war, he should 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 hostilities. If he is an active
participant in the
hostilities,
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
that same law when, out of regard for justice and with
the hope of
saving
life, it orders a military trial before the enemy are
killed. The love
of law, of justice and the wish to save life and
suffering, should
impel
all good men in time of war to uphold and sustain the
existence and
action
of such tribunals. The object of such tribunals is
obviously intended
to
save life, and when their jurisdiction is confined to
offenses against
the laws of war, that is their effect. They prevent
indiscriminate
slaughter;
they prevent men from being punished or killed upon mere
suspicion.
The law of nations, which is the result of the
experience and
wisdom
of ages, has decided that jayhawkers, banditti, etc.,
are offenders
against
the laws of nature and of war, and as such amenable to
the military.
Our
Constitution has made those laws a part of the law of
the land.
Obedience to the Constitution 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 they must kill or
take the secret
enemies
of the country, and try and execute them according to
the laws of war.
The civil tribunals of the country can not 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 contemplates the facts can doubt. The
exclamation used by
him when he escaped from the box on to the stage, after
he had fired
the
fatal shot, sic semper tyrannis, and his dying message,
“Say to my
mother
that I died for my country,” show that he was not 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
offense
against
the laws of war, and a great crime. “I give, then, the
name of
assassination
to treacherous murder, whether the perpetrators of the
deed be the
subjects
of the party whom we cause to be assassinated or of our
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.”
(Vattel, 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
department should,
in
peace and in war, confining itself to its own proper
sphere of action,
diligently and fearless perform its legitimate
functions, and in the
mode
prescribed by the Constitution and the law. Such
obedience to and
observance
of law will maintain 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 President committed the deed as
public
enemies,
as I believe they did, and whether they did or not is a
question 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 be as
palpably wrong of
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
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