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 mportance 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 consistentwith 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 itexists, 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 |