War of the Rebellion: Serial 114 Page 0356 PRISONER OF WAR, ETC.

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accuracy; third, by assimilating councils of war to courts - martial; fourth, by restricting punished to the known laws of some one of the States of the Union. " This project met with no favor from the President. General Taylor in October, 1846, informs the Secretary of War of the " most shameful atrocities " being commited without punishment, and he asks for instructions as to the proper disposition of the culprit in a case of cold - blooded murder at Monterey. Mr. Marcy replied:

The competency of a military tribunal to make congizance of such a case as you have presented, viz, the murder of a Mexican soldier and other offenses not embraced in the express provision of the articles of war, was deemed so questionable that application was made to Congress at the last session to bring them expressly within the jurisdiction of such a tribunal, but it was not acted upon.

He adds:

I am not prepared to say that under the peculiar circumstances of the case, and particularly by the non - existence of any civil authority to which the offender could be turned over, a military court could not rightfully act thereon; yet very serious doubts are entertained upon the point and the Government does not advise that course. It seriously regrets that such flagrant offender cannot be dealt with in the manner he deserves. I see no other course for you to pursue than to release him from confinement and send him away from the army and this is recommended. [See Military Distionary, Scott's, 659 and 660.]

Now nothing is clearer than that the rules and articles of war went with our army in its invasion of Mexico. If they did not provide for the trial by a military tribunal of an American soldier who in a foreign country murdered a Mexican soldier in cold blood how can it be that in the United States where the civil tribunals have excusive jurisdiction of such offenses that a military tribunal can claim to try a citizen for the murder of a soldier? This view is enforced by the celebrated Order Numbers 287, issued by General Scott on the 17th of September, 1847, from the National Palace in Mexico. [See Scott's Military Distionary, p 383 et seq.]

Under the head " Law, " page 382, I submitted to the court the following extracts:

Within the United States therefore the effect of a declaration of martial law would not be to subject citizens to trial by court - martial, but it would involve simply a suspension of the writ of habeas corpus under the authority given in second clause of section 9 of the Constitution, viz: " The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion of invasion the public safety may require it. " The suspension of this privilege would enable a commander to incarcerate all dangerous citizens, but when brought to trial the citizen would necessarily come before the ordinary civil courts of the land. [Page 383.]

There os not perhaps a finer military statute on record, and its autor bases his right to establish military tribunals for the trial of offenses exclusively upon the ground that he is in a foreign country and out of the reach of the civil tribunals which in a government of law and order would have exclusive jurisdiction over them. So reluctant was General Scott to encroach upon the action of the civil tribunals of Mexico that in section 13 of his order he provides:

That the administration of justice both in civil and criminal matters throught the ordinary courts of the country shall nowhere and in no degree be interrupted by any officer or soldier of the American forces except, first, in cases to which an officer, soldier, agent, servant or follower of the American Army may be a party; second, in political cases - that if prosecutions against other individuals on the allegation that they have given friendly information, aid or assistance to the American forces. [See p. 385, Scott's Distionary.]

This is a proceeding not under martial law but military law, and it is settled even in England that the military law does in no respect