Page:Suspension of Habeas Corpus during the War of the Rebellion.djvu/26

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No. 3.]

the constitution a part of the law of the land. As the laws of war constitute part of the law of nations they must also be part of the law of the land, and must exist whenever there is war and be binding on the citizens and the government. Congress may declare war, and when declared, it must be carried on according to its own peculiar laws. By the laws of war the army may capture the soldiers and sailors of the enemy, and, if accused of offences against the laws of war, try and punish them. The army may also capture guerillas, marauders, banditti, spies and other secret or open enemies, try and punish them according to the laws of war. Booth, he thought, was a secret enemy of the government, and his accomplices could accordingly be tried by a military commission. He avoided the constitutional provisions in regard to due process of law and jury trial by saying that the constitution gives the government power to carry on war, and therefore when war comes, the laws of war come with it and are exceptions to those provisions of the constitution. He also had to avoid the argument that the laws of war must, like the rest of the laws of the land, be subject to and modified by the constitution, and this he did by saying that the constitutional provisions for jury trial and due process refer only to crimes, whereas the clause of the constitution on which he relied, speaks of "offences against the law of nations." If an act were a technical crime according to statute or common law it was of course to be dealt with by the judiciary. But if an act were an offence against the law of nations it belonged to the jurisdiction of the army and its military tribunals. If this were not so, every soldier who killed an enemy in battle would be guilty of murder and would have violated the constitution, for he would have deprived a person of life without due process of law. So any one who holds a prisoner of war, is depriving him of liberty without due process of law. And if the army capture a spy and hang him, they are depriving him of life without due process of law, and also of the privilege of trial by jury. But all these acts are lawful because done under the laws of war. They belong to the jurisdiction of the laws of war and have nothing to do with jury trial and