War of the Rebellion: Serial 114 Page 0248 PRISONERS OF WAR, ETC.

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individuals. On the contrary it is the usage and custom of war among all civilized nations to refer such cases to a duly constituted military tribunal composed of reliable officers, who acting under the solemnity of an oath and the responsibility always attached to a court of records will examine witnesses, determine the guilt or innocence of parties accused and fix the punishment. This is usually done by courts-martial; but in our country these courts have a very limited jurisdiction both in regard to persons and offenses. Many classes of persons cannot be arraigned before such courts for any offense whatsoever, and many crimes committed even by military officers, enlisted men or camp retainers cannot be tried under the "Rules and Articles of War. " Military commissions must be resorted to for such cases and these commissions should be ordered by the same authority, be constituted in a similar manner and their proceedings be conducted according to the same general rules as courts-martial in order to prevent abuses which might otherwise arise.

II. As much misapprehension has arisen in this department in relation to this subject the following rules are published for the information of all concerned:

First. Military commissions can be ordered only by the General-in-Chief of the Army or by the commanding officer of the department, and the proceedings must be sent to headquarters for revision.

Second. They will be composed of not less than three members, one of whom will act as judge-advocate and recorder where no officer is designated for that duty. A larger number will be detailed where the public service will permit.

Third. All the proceedings will be recorded and signed by the President and judge-advocate and recorder as in the case of courts-martial. These proceedings will be governed by the same rules as courts-martial so far as they may be applicable.

Fourth. Civil offenses cognizable by civil courts whenever such loyal courts exist will not be tried by a military commission. It should therefore be stated in every application for a commission whether or not there is any loyal civil court to which the civil offenses charged can be referred for trial. It must be observed, however, that many offenses which in time of 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.

Fifth. No case which by the Rules and Articles of War is triable by a court-martial will be tried by a military commission. Charles 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.

Sixth. 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.

Seventh. The fact that those persons who are now carrying on hostilities against the lawful authorities of the United States are rebels and traitors to the Government does not deprived them of any of the