Page:Suspension of Habeas Corpus during the War of the Rebellion.djvu/27

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480
[Vol. III.
POLITICAL SCIENCE QUARTERLY.

due process. The constitution has established the laws of war and also the rule of jury trial and due process, and has assigned to each its own sphere and domain.

The answer to this reasoning brings us back again to the Milligan case. If a man commit an offence which is cognizable in a court, and the courts are open, he must be tried by a court and due process of law, for the simple reason that the constitution commands it. Undoubtedly the constitution provides for carrying on war, and war is to be waged according to the laws thereof. Undoubtedly there are acts, such as killing and capturing the enemy, which are lawful only under the laws of war, and undoubtedly there are offences which are purely offences against the laws of war and cannot be punished by the courts. The trial and punishment for spying, breaking parol, breaking a blockade, violating a flag of truce, uniting with guerillas and bush-whackers, belong entirely to the military. But proving that the laws of war apply to these does not prove that the laws of war apply to offences for which a remedy is provided in the statute book. If the constitution says that no one shall be deprived of life, liberty, or property without due process of law, must not that provision be obeyed whenever it is possible to obey it? Although the constitution provides for war, the war cannot be carried on so as to violate other parts of the constitution. The constitution gives us power to deal with the enemy by the laws of war, but it does not give us power to administer the laws of war to our fellow-citizens. Every offence which can be tried in a court must be tried there, and an offence which cannot be tried in a court, and is purely military, may be left to the army. An offence which is both an offence against the laws of war and a crime triable in court should go to the court, for the command of the constitution is express in this respect and the right of trial by the laws of war is, at best, only implied. Neither the law of nations nor the laws of war can be allowed to overcome, within our own territory, the express words of the constitution. The constitution is the supreme law of the land, and no outside influence or outside law can be paramount to it. The laws of war as laid down by Vattel and