The foregoing discussion of the constitutional aspects of the question will no doubt be regarded by most people as somewhat tedious, and perhaps outside of the legal profession will be read, much less carefully studied, by but few. Yet by those who study it, it will be found to be a most profound and masterly analysis of the questions involved, viz., those of military and civil jurisdiction as provided for in the Constitution, and to fully justify the opinion given as the conclusion of the argument.
We cannot too highly revere the Constitution, as it is that which gives permanence, security, and prosperity to our national life; yet there is a power greater than the Constitution—a power that by authority expressed or understood reserves the right to amend, alter, or abolish its provisions. That power is the sovereignty that resides in the people. Self preservation is a national, as much as an individual instinct, and self preservation is the first law of nature.
A government that has a right to live has a right to the use of all the means that may be found indispensable to the perpetuation of its existence. When war comes the laws of war come with it as a matter of necessity; because war, being an abnormal state of society, brings with it conditions that render inoperative and useless the means provided for the safety and security of the life, liberty, and property of the citizen, as guaranteed by the Constitution and laws. These interests are too sacred to be left wholly unprotected; and so the civilized nations of the world have adopted those rules which the wisdom and experience of mankind have found necessary for their protection in time of war. These rules, or laws, we denominate the laws of war. If the experience of mankind should dictate modifications of, or additions to, those rules for the better protection of these sacred interests of life, liberty, and property, it would be as proper to amend these as it is proper and competent to amend statute law, or to alter, amend, or abolish constitutions. Such additions or alterations, if wisely made, receive the sanction of mankind, and thus become a part of the unwritten law, having in them the authority of this sanction.
In dealing with this question, however, it was not found necessary that anything new should be devised, as the laws of war were found to authorize all that was necessary to the adjudication of the question, and to furnish the means and appliances for securing the ends of justice.
The nature of the offense charged against these prisoners placed them under the domain of martial law, as they were shown by their own acts and declarations to be secret, active enemies of the government, the purpose of their crime being to give aid to the existing rebellion. For this reason the government left them in the hands of the military to be dealt with according to the laws of war; and the President, being ex-officio Commander-in-Chief of the army and navy, ordered the Assistant Adjutant General of the army to detail a military commission, and send the accuse before it for a speedy trial.
[CHAPTER VIII.]
A MILITARY COMMISSION—ITS NATURE, CONSTITUTION, DUTIES, AND JURISDICTION.
A military commission, as we have seen, is a judicial tribunal authorized by and constituted under the laws of war during a state of war. It consists of a definite number of commissioned officers designated by the order of detail. Its jurisdiction is limited, and its duties are also prescribed by that order. It is a military court detailed to try offenders against the laws of war, and clothed with power to decide both on the law and evidence in the case, and to prescribe the punishment due to the offense. It is constituted to act under a presiding officer, who is also designated in the order of detail. It has the assistance of a judge advocate with whom it consults in regard to any questions of law or of evidence that may arise.
The office of a judge advocate does not exactly correspond with that of a states attorney in a civil court, for at the same time that it is his duty to see that the case of the government and the evidence are fairly presented, it is as much his duty to see that the accused shall have a fair and impartial trial. The party on trial has the right to have counsel of his own choice, and the government must secure the attendance of such witnesses in his defense as he may designate. The rules of law and of evidence are very nearly the same as those which prevail in the civil courts. A military commission combines, to a great extent, the functions of both court and jury, as it has to decide on questions of law and evidence as a court, and on the guilt or innocence of the accused, in the light of law and evidence, as a jury. Again, in rendering a sentence, in case of conviction, it exercises the functions of a court. The oath taken by the members of the detail, and which constitutes it a court, requires them to diligently try the case and judge and decide impartially, according to the law and evidence. Thus it will be seen that the rights of the accused are carefully guarded, and every precaution taken to make it certain that justice shall be done. This is the purpose as much in the constitution of a military as of a civil court. The only object of its constitution is to protect the innocent and condemn and punish the guilty, and thus secure the ends of justice and mercy. It is a benign provision of military law, and entitled to the highest respect and honor. Its decisions and sentences, however, must have the approval of the President of the United States to give them validity.