War of the Rebellion: Serial 119 Page 0118 PRISONERS OF WAR AND STATE, ETC.

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"drumhead" court-martial, and by that anomalous tribunal the prisoner was hanged. There are instances familiar to you in military history in which spies have been tried by a special commission ordered by the commander of an army. But it is said that even if such a court as a special commission be recognized by the usage of war it can only sit in a foreign country occupied by an army. This proceeds upon the assumption that at home there can be no adjudication except by the legally established tribunals of the land.

The article of war above referred to confers jurisdiction upon courts-martial to try a certain class of spies, that is, those persons of foreign birth or service found lurking in and about the fortifications or encampments of the Confederate Army. The words "according to the law and usage of nations" seem to refer to the kind of punishment to be inflicted and not to the tribunal to try. Express delegation of power to try only one class or kind has suggested a doubt whether courts-martial which have no implied power, and derive their existence in this country at least entirely from the letter of the law creating them, have any jurisdiction over other classes of spies in the absence of direct authority.

You will allow me to recapitulate the questions:

First. Are the prisoners either traitors or spies?

Second. If spies, by what court are they to be tried?

Third. If neither, what disposition shall I make of them?

I have taken the liberty of suggesting at some length the doubts in my mind, so that by perceiving the points on which I need instruction you can easily see the character of the information to be given.

Trusting that the anxiety I exhibit to act advisedly and in a manner consistent with he dignity and honor of my Government in a matter affecting its relations with the enemy will be received by you as an apology for the communication I have written,

I remain, general, with great respect, your obedient servant,


Major-General, Commanding.

WASHINGTON, July 15, 1863.

Colonel LUDLOW,

Agent for Exchange of Prisoners of War:

The President directs that you immediately place General W. H. F. Lee and another officer selected by you not below the rank of captain, prisoners of war, in close confinement and under strong guard, and that you notify Mr. R. Ould, Confederate agent for exchange of prisoners of war, that if Captain H. W. Sawyer, First New Jersey Volunteer Cavalry, and Captain John M. Flinn, Fifty-first Indiana Volunteer, or any other officers or men in the service of the United States not guilty of crimes punishable with death by the laws of war, shall be executed by the enemy, the aforementioned prisoners will be immediately hung in retaliation. It is also directed that immediately on receiving official or other authentic information of the execution of Captain Sawyer and Captain Flinn, you will proceed to hang General Lee and the other rebel officer designated as hereinabove directed, and that you notify Robert Ould, esq., of said proceeding, and assure him that the Government of the United States will proceed to retaliate for every similar barbarous violation of the laws of civilized war.