laws, but as belligerent enemies to the United States for as violation of the rules of war.
They cinfessedly formed part of a hostile force engaged in civil war against the United States.
In reference to such--
The following principles are assumed as incontrovertible: That civil wars are not distinguishable from other wars as to belligerent and neutral rights; that they stand upon the same ground and are governed by the same principles; that whenever a portion of the State seek by force of arms to overthrow the Government and maintain independence the contest becomes one de facto of war; that in such contests the principles of public law in relation to belligerents must govern, and all the rights which a state of war gives to public enemies are to be allowed to the respective parties engaged inthem. (Stevenson to Palmerston.)
Belligerent rights have been accorded by the United States to the parties engaged in this rebellion agaist them. With those rights go also the duties and liabilities of belligerents. If, "as belligerents," persons violate the laws and usages of war, vilations not provided for in any statute or by the common law, can the U. S. civil courts take cognizance of such vilations? If not, what tribunal shall?
During war cases arise which resquire investigation and frequently those which rquire punishment. Courts-martial have only a limited jurisdiction. They take cognizance of offenses arising under the act for the governemnt of the armies of the United States known as the Rules and Aricles of War, which act, save in a few exceptional cases, affects only persons in the U. S. military service. It is the court which administers the "military law."
Cases which arise in the course of war not provided for by the civil courts, which affect persons or cases not liable to the U. S. Rules and Articles of War, are tried by military commission. (General Orders, Numbers 100, War Department, of 1863.)
Military commissions, though not created by statute, are yet recognized by law and by the U. S. Supreme cort to exist, and their action is privided for by Congress as a part of the machinery by which war is carried on. It is the tribunal before which war is carried on. It is the tribunal before which cases asrising under what may be called the common law of war are tried.
Section 5, act of July 18, 1862, calling forth militia, &c., provides that the Presidnet shall be sent the records and proceedings of all "courts-martial and military commissions."
Section 30, act of March 3, 1863, for enrolling and calling out the national forces, &c., provides that in time of war "murder, robbery, arson," &c., 'shall be punished by the sentence of a genereal courtmartial or military commission."
Section 38, same act, declares that persons found lurking or acting as spies in or about any of the fortifications, &c., of the United States shall be triable by a general court-martial or military commission.
Section 1, act of July 2, 1864, provides that dcepartment commanders may carry into execution sentences of military commissions, as well as of courts-martial, against guaerrila marauders for robbery, vilation of the laws of war, &c.
In ex parte Vallandigham (1st Wallace, U. S. Supreme Court Reports, p. 243) the court refused to review the proceedints of a military commission on certiorari. The question of jurisdsiction was not decided Justice Wayne, in delivering the opinion of the court, referred to General Orders, Numbers 100, of 1863, defining the jurisdsiction of courts-martial and military commissions, and said that it applied in cases of rebellion and civil war, as well as in foreign war.