It may be here remarked that the existence of a common law of war is recognized in the acto of Congress establishing rules and articles for the government of the armies of the United States, in the oath prescribed by the Sixty-ninth Article for the members of a court-martial, who are required, in cases not explained by the said articles, to be governed by the "custom of war in like cases."
Military courts are not restricted in their jurisdiction by any territorial limits. They may try in one State offenses committed in anothyer, and may try in the United Statesw offenses committed in foreign parts, and may try out of the United States offenses committed at home. They have to do only with the person and the offense committed; all else is simply a matter of congenience, of witnesses, of the means of assembling a court, &c.
It is conceded that the act alleged to have been committed by the prisoners may be in violation of the laws of 1790, 1818, or 1862, and may constitute offenses congnizable by the U. S. civil courts; but if so, this would not affect the case now under consideration, nor prevent its trial by the military commission, for by one and the same act the prisoners may have committed several offenses, each to be tried and judged by the tribunal having, respectively, jurisdiction of it.
An offense, in its legal signification, means the transgression of a law. A man may be compelled to make reparation in damages to the injured party, and be liable also to punishment for a breach of the public peace inconsequence of the swame act, and may be said, in common parlance, to be twice punished for the same offense. Everycitizen of the United States is also a citizen of a State or Territory. He may be ssaid to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense, or transgression of thelaws of both. Thus an assault upon the marshal of the United States and hindering him in the execution of legal process is a high offense against the United States, for which the perpetrator is laible to punishemtn, and the same act may be also a gross breach of the peace of the State, a riot, assault, or a murder, and subject the same preson to a punishment under the State laws for a misdemeanor or felony. That either or both may (if they see fit) punish such an offender cannot be doubted. Yet it cannot be truly averred taht the offender has been twice punished for the same offense, but only that byone act he has committed two offenses, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other; consequently this court has decided in the case of Fox vs. The Stte of Ohio (5 Howard, 432) that a State may punish the offense of uttering or passing false coin, as a cheat or fraud practiced on its citizens, and in the case of The United States vs. Mongold (9 Howard, 560) that Congress, in the proper exercise of its authority, may punish the same act as an offense against the United States. (Moore vs. State of Illinois, 20 Curtis, p. 9.)
Therefore, a soldier assaulting his commanding officer in the streets of San Francisco might by the same act be liable to punishment for the offense of a breach of peace, and under the Ninth Article of War for the capital offense of striking his superior officer.
And an officer who should commit forgery would be liable to be tried by the civil courts for felony and by the military courts "for conduct unbecoming an officer and a gentleman."
It is maintained, moreover, that the prisoners were captured before they reached the "high seas;" that the going on hboard of the Salvador, if that be claimed as the overt acct in their offense, was done within the jurisdiction of a neutral power, whose jurisdiction is claimed to be absolute and exclusive; that the act might be punishable by the laws of New Granada, but is no infraction of the laws of war, "for there could be o war between the belligerents within the jurisdiction of a foreign power."
To this it must be said,as a matter of fact, that the bay or gulf of Panama is not within the exclusive jurisdiction of any power. That