commissions, courts or tribunals, for the trial
of ofi'enders 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
some times harsh, and sometimes even tyranni-
cal, 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. Consider-
ing the power that the laws of war give over
secret participants in hostilities, such as ban-
APPENDIX.
407
ditti, 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 has the instinct of justice, or
that can be softened by morcy, 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 interpo-
sition 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 that the Bureau of Military
Justice, regularly organized during this war, has
saved human life and prevented human suffer-
ing. 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 estab-
lished 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 miti-
gating 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 establishment as to our inimitable
and inestimable constitutions. It must be con-
stantly 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 offen-
ders or offenses where the civil courts are open,
except 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 argu-
ment 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 estab-
lished 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 Con-
gress the power to make rules for the govern-
ment of the army and navy, 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 pre-
scribing a punishment for their infraction, and
the mode of proceeding to ascertain whether an
offense has been committed, and what punish-
ment is to be inflicted, the army must be gov-
erned by the laws and usages of war as under-
derstood 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 hor-
rors of war.
But it may be insisted that though the laws
of war, being a part of the law of nations, con-
stitute a part of the laws of the land, that thoss
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 place or places as the Congress may by
law have directed." [xlri. Ill 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 com-
pelled, 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." [Amendment* 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 dis-
trict wherein the crime shall have been com-
mitted, which district shall have been previously
ascertained by law, and be informed of the na-
ture and cause of the accusation ; to be con-
fronted 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 Cotistitution.)
408
APPENDIX
These provisions of the Constitutiou are in-
tended to fling around the life, liberty and prop-
erty 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 tliat for many
weary ages the people suffered for the want of
them; it would not only be stupidity, hut mad-
ness 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 pro-
visions of the Constitution must not 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 won-
derful monument of their wisdom. Well versed
in the history of the world, they knew that the
nation for which they were forming a govern-
ment would, unless all history was false, have
wars, foreign and domestic. Hence the govern-
ment 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 de-
nominated crimes, but offenses. Hence the ex-
pression 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, by the laws of war, lose his life, liis
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
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 punish-
ment 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 cog-
nizance ; 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 mis-
demeanors 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
I lie form and manner prescribed in the Consti-
tution; 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.
Tliere is, then, an apparent but no real con-
flict in the constitutional provisions. Offenses
against the laws of war must be dealt with and
punished under the Constitution, as the laws of
war, they being part of the law of nations di-
rect ; 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 sjiy was a well-known offender under the
laws of war, and that under and according to
those laws he could have been tried and pun-
ished without an act of Congress. This is ad-
mitted 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.
Tliat portion of the Constitution which de-
clares that "no person shall be deprived of hie
life, liberty or property without due process of
law, ' has such direct reference to, and connec-
tion with, trials for crime or criminal proseca-
tions, 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 duo process of law" contemplated
by this provision; every man that holds an-
other as a prisoner of war is liable for false
imprisonment, as he does so without that
due process of law contemplated by this pro-
vision ; every soldier that marches across
a field in battle array is liable to an action
of trespass, because he does it without that
same <lue process. The argument that flings
around offenders against the laws of war the.se
guarantees of the Constitution would convict all
tlie soldiers of our army of murder; no prison-
ers 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 value-
less, 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 tliat he belonged to
the army or navy, and wa.'* held to be tried for
some offense against the rules and articles of
war, the writ should be dismis.sed, and the party
remanded to answer to the charges. So, in
time of war, if a man sliould sue out a writ of
habeas corpus, and it is made appear that he is
in the hands of the military as a prisoner of
war, the writ should be dismissed and the pris-
oner 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
APPENDIX.
409
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 trieil, con-
demned and executed by a military tribunal
without a breach of the Constitution. A bush-
whacker, a jayhawker, a bandit, a war rebel,
an assassin, being public enemies, may be tried,
condemned and executed as ofi'enders against
the laws of war. The soldier that would fail to
try a spy or bandit after his captm-e, would be
as derelict in duty as if he were to fail to cap-
ture; 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 uo
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 ;
BO a spy, a 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 authorize human life to be
taken without legal process, or that legal pro-
cess 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 one 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 war-
rant or otlier 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 Vje-
cause 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 al!
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 con-
fined to offenses against the laws of war, that is
their effect. They prevent indiscriminate
slaughter; they prevent men from being pun-
ished 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 Constitutiou and the law,
then, requires that the military should do their
whole duty ; they must not only meet and fight
tlie 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, ardu-
ous and perilous, but lawful duties. That Booth
and his associates were secret active public ene-
mies, 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 tyraimis, and his
dying message, " Say to my mother that I died
for my country," show that he was not an as-
sassin 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 na-
tions, as an offense against the laws of war,
and a great crime. "1 give, then, the name of
assassination to a treacherous murder, whether
the perpetrators of the deed be the subjects of
the party whom we cause to be assassinated or
of our own sovereign, or that it be executed by
any other emissary introducing himself as a
suppliant, a refugee or a deserter, or, in fine, as
a stranger." ( Va/lcl, 339.)
Neither the civil nor the military department
of the Government should regard itself as wiser
and better than the Constitution and the laws
thatexist under or are made in pursuance thereof.
Each department should, in peace and in war,
confining itself to its own proper sphere of ac-
tion, diligently and fearlessly perform its legiti-
mate functions, and in the mode prescribed by
tlie Constitution and tlie 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 per-
sons who are charged with the assassination of
the President committed the deed as public ene-
mies, as I believe they did, and whether they did
or not is a question to be decided by the tribu-
nal before which they are tried, they not only
can, but ought to be tried before a military tri-
bunal. If the persons charged have offended
against the laws of war, it would be as palpa-
bly wrong for the military to hand them over
to the civil courts, as it would be wrong in a
civil court to convict a man of murder who had,
in time of war, killed another in battle.
I am, sir, most respectfully, your obedient
servant,
JAMES SPEED,
Attorney General.
To the President
INSTRUCTIONS
GOVERfflENT OF ARMIES OF THE UNITED STATES
IN THE FIELD.
GENERAL ORDERS, NO. 100.
ICE, I
iG3. J
Wae Department,
Adjutant General's Office,
Washington, April 24, 18G3
The following "Instructions for the Govern-
ment of Armies of the United States in the
Field," prepared by Francis Leiber, L. L I)., and
revised by a Board of Officers, of which Major-
General E. A. Hitchcock is President, having
been approved by the President of the United
States, he commands that they be published for
the information of all concerned.
By Order of the Secretary of War :
E. D. TOWNSEND,
Assistant Adjutant General.
SECTION I.
Martial Law — Military Jurisdiction — Military Ne-
cessity — Retaliation.
1. A place, district or country occupied by
an enemy, stands, in consequence of the occupa-
tion, under the martial law of the invading or
occupying army, whether any proclamation de-
claring martial law, or any public warning to
the inhabitants has been issued or not. Martial
law is the immediate and direct effect and con-
iequence of occupation or conquest.
The presence of a hostile army proclaims its
martial law.
_ 2. Martial law does not cease during the hos-
tile occupation, except by special proclamation,
ordered by the Commander-in-Chief, or by
special mention in the treaty of peace conclud-
ing the war, when the occupation of a place or
territory continues beyond the conclusion of
peace as one of the conditions of the same.
3. Martial law in a hostile country consists
in the^ suspension, by the occupying military
authority, of the criminal and civil law, and of
the domestic administration and government in
the occupied place or territory, and in the sub-
etitution of military rule and force for the s.ame,
•B well as in the dictation of general laws, as
far as military necessity requires this suspen-
aion, substitution or dictation.
The commander of the forces may proclaim
that the administration of all civil and penal
law shall continue, either wholly or in part, as
In times of peace, unless otherwise ordered by
the military authority.
410
4. Martial law is simply military authority
exercised in accordance with the laws and
usages of war. Military oppression is not mar-
tial law ; it is the abuse of the power which that
law confers. As martial law is executed by
military force, it is incumbent upon those
who administer it to be strictly guided by the
principles of justice, honor and humanity — vir-
tues adorning a soldier even more than other
men, for the very reason that he possesses the
power of his arms against the unarmed.
5. Martial law should be less stringent in
places and countries fully occupied and fairly
conquered. Much greater severity may be ex-
ercised in places or regions where actual hos-
tilities exist, or are expected and must be pre-
pared for. Its most complete sway is allowed —
even in the commander's own country — when
face to face with the enemy, because of the ab-
solute necessities of the case, and of the para-
mount duty to defend the country against in-
vasion.
To save the country is paramount to all other
considerations.
15. All civil and penal law shall continue to
take its usual course in the enemy's places and
territories under martial law, unless interrupted
or stopped by order of the occupying military
power ; but all the functions of the hostile gov-
ernment — legislative, executive or administra-
tive — whether of a general, provincial or local
character, cease under martial law, or continue
only with the sanction, or if deemed necessary,
the participation of the occupier or invader.
7. Martial law extends to property, and to
persons, whether they are subjects of the enemy
or aliens to that government.
8. Consuls, among American and European
nations, are not diplomatic agents. Neverthe-
less, their offices and persons will be subjected
to martial law in cases of urgent necessity only:
their property and business are not exempted.
Any delinquency they commit against the es-
tablished military rule may bepunished as in the
case of any other inhabitant, and such punish-
ment furnishes no reasonable ground for inter-
national complaint.
9. The functions of Ambassadors, Ministers
or other diplomatic agents, accredited by neu-
tral powers to the hostile government, cease, so
far as regards the displaced government; but
the conquering or occupying power usually
recognizes them as temporarily accredited to
itself.
APPENDIX.
411
10. Martial law afiFects jhiefly the police and
collection of public revenue and taxes, whether
imposed by the expelled government or by the
invader, and refers mainly to the support and
efficiency of the army, its safety, and the safety
of its operations.
11. The law of war does not only disclaim all
cruelty and bad faith concerning engagements
concluded with the enemy during the war, but
also the breaking of stipulations solemnly con-
tracted by the belligerents in time of peace, and
avowedly intended to remain in force in case
of war between the contracting powers.
It disclaims all extortions and other transac-
tions for individual gain ; all acts of private
revenge, or connivance at such acts. Offenses