APPENDIX.

AN MATEO COUNTY, CALIC

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 was 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, is to call into being. Congress has 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 nary process of law, the military should not be on some points of indifference." (See opinion called out. A defensive foreign war is declared Attorney General, vol. 1, page 27.) The framers and carried on because the civil police is inadeof the Constitution knew that a nation could quate to repel it; a civil war is waged because not maintain an honorable place among the the laws can not be peacefully enforced by the nations of the world that does not regard the ordinary tribunals of the country through civil great and essential principles of the law of na-process and by civil officers. Because of the tions as a part of the law of the land. Hence utter inability to keep the peace and maintain Congress may define those laws, but can not order by the customary officers and agencies in abrogate them, or as Mr. Randolph says, may time of peace, armies are organized and put into " modify on some points of indifference." 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.

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 do 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 upon 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.

Anciently, when two nations were at war, the conqueror had, or asserted, the right to take from his 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 All wars against a domestic enemy or to re- soldiers who wear the uniform, move under the pel invasions, are prosecuted to preserve the flag, and hold the appropriate commission from Government. If the invading force can be over- their government. Openly assuming to discome by the ordinary civil police of a country, it charge the duties and meet the responsibilities should be done without bringing upon the coun- and dangers of soldiers, they are entitled to all try the terrible scourge of war; if a commotion belligerent rights, and should receive all the or insurrection can be put down by the ordi- courtesies due to soldiers. The true soldier is

proud to acknowledge and respect those rights, | to a prisoner, or perfidy toward the bearers of a and ever cheerfully extends those courtesies. flag of truce. 2. Secret, but active participants, as spies, brigands, bushwhackers, jayhawkers, war rebels and assassins. In all wars, and especially in civil wars, such secret, active enemies rise up to annoy and attack an army, and must be met and put down by the army. When lawless wretches become so impudent and powerful as not to be controlled and governed by the ordinary tribunals of a country, armies are called out, and the laws of war invoked. Wars never have been and never can be conducted upon the principle that an army is but a posse comitatus of a civil magistrate.

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 An army, like all other organized bodies, has war do not permit that he should be punished a right, and it is its first duty, to protect its own without a trial, or, if innocent, that he shall existence and the existence of all its parts, by have no means of wiping out the foul imputathe means and in the mode usual among civil- tion. If a paroled prisoner is charged with a ized nations when at war. Then the question breach of his parole, he may be punished if 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?

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.

As has been said, the open enemy or soldier in The law and usage of war contemplate that time of war may be met in battle and killed, soldiers have a high sense of personal honor. wounded or taken prisoner, or so placed by the The true soldier is proud to feel and know that lawful strategy of war as that he is powerless. his enemy possesses personal honor, and will Unless the law of self-preservation absolutely de- conform and be obedient to the laws of war. mands it, the life of a wounded enemy or a pris- In a spirit of justice, and with a wise apprecioner must be spared. Unless pressed thereto by ation of such feelings, the laws of war protect the extremest necessity, the laws of war condemn the character and honor of an open enemy. and punish with great severity harsh or cruel When by the fortunes of war one open enemy treatment to a wounded enemy or a prisoner. is thrown into the hands and power of another, Certain stipulations and agreements, tacit or and is charged with dishonorable conduct and a express, betwixt the open belligerent parties, breach of the laws of war, he must be tried acare permitted by the laws of war, and are held cording to the usages of war. Justice and to be of very high and sacred character. Such fairness say that an open enemy to whom disis the tacit understanding, or it may be usage, honorable conduct is imputed, has a right to of war, in regard to flags of truce. Flags of demand a trial. If such a demand can be righttruce are resorted to as a means of saving hu-fully made, surely it can not be rightfully reman life, or alleviating human suffering. When fused. It is to be hoped that the military aunot used with perfidy, the laws of war require thorities of this country will never refuse such that they should be respected. The Romans a demand, because there is no act of Congress regarded ambassadors betwixt belligerents as that authorizes it. In time of war the law and persons to be treated with consideration and usage of war authorize it, and they are a part respect. Plutarch, in his Life of Caesar, tells us of the law of the land. that the barbarians in Gaul having sent some One belligerent may request the other to punambassadors to Cæsar, he detained them, charg-ish for breaches of the laws of war, and, reguing 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 Cæsar ought to be given into the hands of the barbarians, that so the guilt which this breach of faith might otherwise bring upon the State might be expiated by transferring the curse on him who was the occasion of it.

Under the Constitution and laws of the United States, should a commander be guilty of such a flagrant breach of law as Cato charged upon 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

larly, 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 hu

man life, and to prevent cruelty as far as possible. | nations, can doubt but that Mr. Wheaton and Mr. The commander of an army in time of war has Henry have fairly stated the laws of war. Let the same power to organize military tribunals it be constantly borne in mind that they are and execute their judgments that he has to set talking of the law in a state of war. These banhis squadrons in the field and fight battles. ditti that spring up in time of war are respectHis authority in each case is from the law and ers of no law, human or divine, of peace or of usage of war. war, are hostes humani generis, and may be hunted Having seen that there must be military tri- down like wolves. Thoroughly desperate and bunals to decide questions arising in time of perfectly lawless, no man can be required to war betwixt belligerents who are open and peril his life in venturing to take them prisonactive enemies, let us next see whether the laws ers-as prisoners, no trust can be reposed in of war do not authorize such tribunals to deter- them. But they are occasionally made prisonmine the fate of those who are active, but secret, ers. Being prisoners, what is to be done with participants in the hostilities. them? If they are public enemies, assuming In Mr. Wheaton's Elements of International and exercising the right to kill, and are not Law, he says: "The effect of a state of war, law-regularly authorized to do so, they must be apfully declared to exist, is to place all the sub-prehended and dealt with by the military. No jects of each belligerent power in a state of mu- man can doubt the right and duty of the militual hostility. The usage of nations has modified tary to make prisoners of them, and being this maxim by legalizing such acts of hostility public enemies, it is the duty of the military to only as are committed by those who are author- punish them for any infraction of the laws of ized by the express or implied command of the war. But the military can not ascertain State; such are the regularly commissioned whether they are guilty or not without the aid naval and military forces of the nation and all of a military tribunal.

others called out in its defense, or spontane- In all wars, and especially in civil wars, ously defending themselves, in case of necessity, secret but active enemies are almost as numerwithout any express authority for that purpose.ous as open ones. That fact has contributed to Cicero tells us in his offices, that by the Roman make civil wars such scourges to the countries feudal law no person could lawfully engage in in which they rage. In nearly all foreign wars battle with the public enemy without being the contending parties speak different languages regularly enrolled, and taking the military oath. and have different habits and manners; but in This was a regulation sanctioned both by policy most civil wars that is not the case; hence and religion. The horrors of war would indeed there is a security in participating secretly in be greatly aggravated, if every individual of hostilities that induces many to thus engage. the belligerent States were allowed to plunder War prosecuted according to the most civilized and slay indiscriminately the enemy's subjects, usage is horrible, but its horrors are greatly without being in any manner accountable for aggravated by the immemorial habits of plunhis conduct. Hence it is that, in land wars, ir-der, rape and murder practiced by secret, but regular bands of marauders are liable to be treated active participants. Certain laws and usages as lawless banditti, not entitled to the protection of the mitigated usages of war as practiced by civilized nations." (Wheaton's Elements of International Law, page 406, 3d edition.)

have been adopted by the civilized world in wars between nations that are not of 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 are we, 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.

In speaking upon the subject of banditti, Patrick Henry said, in the Virginia Convention, "The honorable gentleman has given you an elaborate account of what he judges tyrannical legislation, and an ex post facto law (in the case of Josiah Phillips); he has misrepresented the A public enemy must or should be dealt with facts. That man was not executed by a tyran- in all wars by the same laws. The fact that nical stroke of power; nor was he a Socrates; they are public enemies, being the same, they he was a fugitive murderer and an outlaw; a should deal with each other according to those man who commanded an infamous banditti, and laws of war that are contemplated by the Conat a time when the war was at the most perilous stage stitution. Whatever rules have been adopted he committed the most cruel and shocking bar- and practiced by the civilized nations of the barities; he was an enemy to the human name. world in war, to soften its harshness and Those who declare war against the human race severity, should be adopted and practiced by us may be struck out of existence as soon as ap- in this war. That the laws of war authorized prehended. He was not executed according to commanders to create and establish military those beautiful legal ceremonies which are commissions, courts or tribunals, for the trial pointed out by the laws in criminal cases. The of offenders against the laws of war, whether enormity of his crime did not entitle him to it. they be active or secret participants in I am truly a friend to legal forms and methods, the hostilities, can not be denied. That the but, sir, the occasion warranted the measure. judgments of such tribunals may have been 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

some times 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 ban

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, 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?

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 We have seen that when war comes, the laws and all ideas of law and justice. Surely no and usages of war come also, and that during lover of mankind, no one that respects law and the war they are a part of the laws of the land. order, no one that has the instinct of justice, or Under the Constitution, Congress may define that can be softened by mercy, would, in time and punish offenses against those laws, but in of war, take away from the commanders the default of Congress defining those laws and preright to organize military tribunals of justice, scribing a punishment for their infraction, and and especially such tribunals for the protection the mode of proceeding to ascertain whether an of persons charged or suspected with being offense has been committed, and what punishsecret foes and participants in the hostilities. ment is to be inflicted, the army must be govIt would be a miracle if the records and history erned by the laws and usages of war as underof this war do not show occasional cases in derstood and practiced by the civilized nations which those tribunals have erred; but they will of the world. It has been abundantly shown show many, very many cases in which human that these tribunals are constituted by the army life would have been taken but for the interpo- in the interest of justice and mercy, and for the sition and judgments of those tribunals. Every purpose and to the effect of mitigating the horstudent of the laws of war must acknowledge rors of war.

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." (Art. III of the original Constitution, sec. 2.)

that such tribunals exert a kindly and benign | But it may be insisted that though the laws influence in time of war. Impartial history of war, being a part of the law of nations, conwill record the fact that the Bureau of Military stitute a part of the laws of the land, that those 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 establishment 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 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 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

"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.)