questions of military law on which I beg to ask that you will do me the favor to give me such instructions as you may deem proper.
Some of the prisoners are officers in the Federal army, caught within the lines of this department attempting to enlist recruits. Others are enlisted men secretly visiting their homes. All were at the time they entered the Federal service citizens of Tennessee, which State was then a member of the Southern Confederacy.
The first question which suggests itself is, are they traitors?
I have gathered from the practice of both Governments during the country and take service under the other belligerent, provided this was done before there were laws of conscription or others of like character creating present military obligations. The act of departure and the taking of arms seem to have been considered as an initiatory step of expatriation, giving the person a character somewhat similar to that of a foreigner who has made an official declaration of an intention to become a citizen. The examples of this are to be found in the case of citizens of Maryland and Delaware in the Confederate service, and of citizens doctrine intimated in some of the books on public law, that in civil wars time is given to all citizens to choose the flag they will support, has any bearing on the case, is a question I merely suggest without meaning to express an opinion.
If the prisoners are not traitors, are they spies?
As a general rule, the armed citizens of one belligerent can offer no excuse or justification for being within the territory of the other except for battle. If caught it seems that they are liable to other treatment than that which is extended to prisoners of war taken on the field. General Burnside, commanding the Department of the Northwest, has declared that by the laws of nations they are spies, and I have reason to believe that he has lately caused two such persons to be hanged. It is suggested by some that a soldier cannot be deemed a spy withheld within the actual lines of the army. By others it is maintained that this view is too narrow, and that a soldier caught within the territory occupied and held by the enemy cannot defend against the charge of being a spy, except by showing that he was there for the purpose of giving battle. It is said that an exploration of the territory of an enemy is as criminal in point of military law as an entry within the camp lines of an army, and stamps the offenders with a similar character.
Section 2 of the 101st Article of War designates those persons not citizens of the Confederacy who shall be found lurking in and about the fortifications and encampment of the Confederate Army as spies. From his it might be inferred that Congress did not deem those persons spies who entered our territory without they should be found in proximity to our armies. It seems also to affirm that a citizen cannot be a spy, the lesser military crime being merged into the graver one of treason. The same article of war is to be found in the Federal code, yet judging from the order of General Burnside he seems to have a different view from that suggested above of what by military law constitutes a spy.
If the prisoners be considered spies, by what tribunal are they to be tried?
I presume it may be stated as a general rule, applicable to public as well as to domestic criminal law, that there cannot be two different tribunals or courts having concurrent jurisdiction of the same offense. General Bragg has ordered spies to be tried by a court-martial. General Rosecrans ordered Major Orton Williams to be tried by a