peace are civil offenses become in time of war military offenses, and are to be tried by a military tribunal, even in places where civil tribunals exist.
Fourth. No case which, by the Rules and Articles of War, is triable by a court-martial will be tried by a military commission. Charges, therefore, preferred against prisoners before a military commission should be "violation of the laws of war," and never "violation of the Rules and Articles of War," which are statutory provisions, defining and modifying the general laws of war in particular cases and in regard to particular persons and offenses. They do not apply to cases not embraced in the statute, but all cases so embraced must be tried by a court-martial. In other cases we must be governed by the general code of war.
Fifth. Treason, as a distinct offense, is defined by the Constitution, and must be tried by courts duly constituted by law; but certain acts of a treasonable character, such as conveying information to the enemy, acting as spies, &c., are military offenses, triable by military tribunals and punishable by military authority.
Sixth. The fact that those persons who are now carrying on hostilities against the lawful authority of the United States are rebels and traitors to the Government does not deprive them of any of the rights of war, so far as the military authorities are concerned. In our intercourse with the duly authorized forces of the so-called Confederate States, and in the treatment of prisoners of war taken from such forces, we must be governed by the usages and customs of war in like cases. But the rights so given to such prisoners by the laws of war do not, according to the same code, exempt them from trial and punishment by the proper courts for treason or other offenses against the Government. The rights which they may very properly claim as belligerent under the general rules of belligerent intercourse-commercia belli-cannot exempt them form the punishment to which they may have subjected themselves as citizens under the general laws of the land.
Seventh. Again, a soldier duly enrolled and authorized to act in a military capacity in the enemy's service is not, according to the code military, individually responsible for the taking of human life in battle, siege, &c., while, at the same time, he is held individually responsible for any act which he may commit in violation of the laws of war. Thus, he cannot be punished by a military tribunal for committing acts of hostility which are authorized by the laws of war; but if he has committed murder, robbery, theft, arson, &c., the fact of his being a prisoners of war does not exempt him from trial by a military tribunal.
Eighth. And again, while the code of war gives certain exemptions to a soldier regularly in the military service of an enemy, it is a well-established principle that insurgents, not militarily organized under the laws of the State, predatory partisans, and guerrilla bands are not entitled to such exemptions; such men are not legitimately in arms, and the military name and garb which they have assumed cannot give a military exemption to the crimes which they may commit. They are, in a legal sense, mere freebooters and banditti, and are liable to the same punishment which was imposed upon guerrilla bands by Napoleon in Spain and by Scott in Mexico.
By command of Major-General Burnside:
W. P. ANDERSON,
42 R R-VOL XXX, PT III