Post by mdenney on Feb 25, 2007 23:44:06 GMT -5
FN303]. See note 299 supra.
[FN304]. See text accompanying notes 95-99 supra.
[FN305]. The statutory provisions were contained in the Articles of War enacted in 1806. Act of Apr. 10, 1806, ch. 20, § 1, 2
43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 54
43 Stan. L. Rev. 13
(Cite as: 43 Stan. L. Rev. 13)
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Stat. 359. Between 1806 and December 1862, there were only 12 amendments to the Articles. See FREDERICK C.
BRIGHTLY, ANALYTICAL DIGEST OF THE LAWS OF THE UNITED STATES, 1789-1857, at 83 (1858);
FREDERICK C. BRIGHTLY, ANALYTICAL DIGEST OF THE LAWS OF THE UNITED STATES, 1857-1863, at 1101-
03 (1863). I discuss in the text all the amendments relevant to the questions raised here.
[FN306]. Article 56 made it an offense to "relieve the enemy with money, victuals, or ammunition, or [to] knowingly harbor
or protect an enemy." Art. 56, 2 Stat. 359, 366 (1862). Article 57 established the offense of "holding correspondence with or
giving intelligence to the enemy either directly or indirectly." Id. art. 57.
[FN307]. Act of Feb. 13, 1862, ch. 25, § 4, 12 Stat. 339, 340. The original Articles of War prohibited only spying "in time of
war." § 2, 2 Stat. 359, 371 (1862). The prohibition on spying during time of rebellion was added in February 1862,
presumably to permit the military to try Confederates found spying within any part of the United States declared by the
President to be in a state of insurrection. See 12 Stat. 339, 340.
[FN308]. See arts. 91-92, 2 Stat. 359, 370. Courts of inquiry could be used to "examine into the nature of any transaction,
accusation or imputation against any officer or soldier." Id. art. 91, at 370. The statute provided that only the president or an
accused could order a court of inquiry, as courts of inquiry could be "perverted to dishonourable purposes, and may be
considered as engines of destruction to military merit, in the hands of weak and envious commandants." Id. art. 92, at 370.
Since a court of inquiry did not sit in judgment of an accused, it required only a recorder "to reduce the proceedings and
evidence to writing" rather than a judge advocate to act as prosecutor. See id. art. 91, at 370.
[FN309]. See Act of July 17, 1862, ch. 36, § 5, 12 Stat. 597, 598 ("the President shall appoint . . . a judge advocate general . .
. to whose office shall be returned, for revision, the records and proceedings of all courts-martial and military commissions,
and where a record shall be kept of all proceedings had thereupon").
[FN310]. See, e.g., Act of Mar. 3, 1863, ch. 75, § 30, 12 Stat. 731, 736 (murder, manslaughter, robbery, larceny, and certain
other crimes, when committed by military persons in time of war or rebellion, punishable by court-martial or military
commission); id. § 38, 12 Stat. 737 (spies to be triable by military commission or court-martial); Act of July 4, 1864, ch.
253, § 6, 13 Stat. 394, 397 (civil officials of quartermaster department amenable to trial by military commission or courtmartial
for neglect of duty and fraud). In each of these statutes, Congress simply stated that cases triable by court-martial
under statutory authority could also be tried by a military commission. Since military commissions and courts-martial were
conducted in the same manner, see note 269 supra, there seems no basis for distinguishing the two forms of trial. In 1864,
Congress enacted the first statute that specified trial by military commission for offenses not triable by court-martial. Act of
July 2, 1864, ch. 215, § 1, 13 Stat. 356 (commanders of departments and armies authorized to execute sentences imposed by
military commissions upon guerrillas for violation of the laws and customs of war). In the debate in the Senate preceding
passage of the Act, however, Senator Lyman Trumbull, committee member and floor manager of the bill, repeatedly stated
that the bill would not confer any new authority on military tribunals but would simply permit sentences of such tribunals to
be carried out without the delay caused by having to seek presidential approval. CONG. GLOBE, 38th Cong., 1st Sess. 3030,
3416-17 (1864).
[FN311]. Gen. Order No. 20, HQ Army at Tampico, Feb. 19, 1847, in Military Orders-Mexican War, NARG 94 (Entry 134).
The complete list of offenses in the General Order was "ssassination, murder, malicious stabbing, or maiming, rape,
malicious assault and battery, robbery, theft, the wanton desecration of churches, cemeteries or other religious edifices and
fixtures and the destruction except by order of a superior officer of public or private property." Id. Some of these offenses
referred to acts committed not by civilians but by soldiers, who were also included in the order establishing military
commissions. See text accompanying notes 313-316 infra.
[FN312]. On its face, Article of War 99 appears to provide ample authority to try soldiers for many acts not expressly made
unlawful by the statute:
All crimes not capital, and all disorders and neglects which officers and soldiers may be guilty of, to the prejudice of good
order and military discipline, though not mentioned in the foregoing articles of war, are to be taken cognizance of by a
general or regimental court-martial, according to the nature and degree of the offence, and be punished at their discretion.
Act of Apr. 20, 1806, ch. 20, § 1, art. 99, 2 Stat. 359, 371. In practice, however, the army had not viewed this provision as a
grant of authority to try soldiers for acts such as rape, murder, robbery, arson, and assault with intent to kill. See Caldwell v.
Parker, 252 U.S. 376, 381-83 (1920). Congress later remedied this problem by providing for military trial for such offenses
43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 55
43 Stan. L. Rev. 13
(Cite as: 43 Stan. L. Rev. 13)
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
by soldiers. Act of Mar. 3, 1863, ch. 75, § 30, 12 Stat. 731, 736.
[FN313]. Gen. Order No. 20, HQ Army at Tampico, Feb. 19, 1847, in Military Orders-Mexican War, NARG 94 (Entry 134).
In fact, individuals brought before these commissions were sometimes tried for offenses not expressly included in the list
enumerated in General Order 20. For example, the orders convening military commissions listed such offenses as burglary,
picking pockets, carrying a concealed weapon, riotous conduct, and attempting to pass counterfeit money, none of which
were contained in General Order 20. 1 W. WINTHROP, supra note 179, at 59-60.
[FN314]. Order No. 5, Mar. 13, 1848, in Military Orders-Mexican War (Puebla), NARG 94 (Entry 134); Order No. 36, May
21, 1848, in id.; Order No. 176, June 14, 1847, in Military Orders-Mexican War (Gen. Scott), NARG 94 (Entry 134).
[FN315]. Order No. 5, Mar. 13, 1848, in Military Orders-Mexican War (Puebla), NARG 94 (Entry 134).
[FN316]. Gen. Order No. 97, Apr. 7, 1847, in Military Orders-Mexican War (Gen. Scott), NARG 94 (Entry 134).
[FN317]. Order No. 30, HQ Dept. of Puebla, May 17, 1848, in Military Orders-Mexican War (Puebla), NARG 94 (Entry
134); Order No. 33, HQ Dept. of Puebla, May 19, 1848, in id.
[FN318]. Order No. 17, HQ Dept. of Puebla, May 3, 1848, in Military Orders-Mexican War (Puebla), NARG 94 (Entry 134).
[FN319]. See, e.g., J. RANDALL, supra note 296, at 91 (martial law declared in New Orleans; William Mumford convicted
and hanged for treason for tearing down United States flag after liberation of city).
[FN320]. See H.W. HALLECK, INTERNATIONAL LAW 782 (1861); see also S. BENET, A TREATISE ON MILITARY
LAW AND THE PRACTICE OF COURTS-MARTIAL 10-16 (4th ed. 1864). Halleck notes that in California, also the scene
of fighting in the Mexican War, such offenses were generally tried in the civil courts; the occupying army set up special
tribunals in only a few cases. H. HALLECK, supra, at 783.
[FN321]. Leitensdorfer v. Webb, 61 U.S. (20 How.) 176, 177-78 (1857); accord Mechanics' & Traders' Bank v. Union Bank,
89 U.S. (22 Wall.) 276, 295-97 (1874); The Grapeshot, 76 U.S. (9 Wall.) 129, 132-33 (1869); Cross v. Harrison, 57 U.S. (16
How.) 164, 189-90 (1853). But see Jecker v. Montgomery, 54 U.S. (13 How.) 498, 515 (1851) ("neither the President nor any
military officer can establish a court in a conquered country, and authorize it to decide upon the rights of the United States, or
of individuals in prize cases, nor to administer the laws of nations"; the courts established in Mexico by the military
commanders were "nothing more than agents of the military power, to assist it in preserving order in the conquered
territory").
[FN322]. Several lower federal courts rejected the use of martial law in the period following the end of hostilities in the Civil
War, granting writs of habeas corpus to release prisoners held under military authority. See, e.g., In re Egan, 8 F. Cas. 367
(C.C.N.D.N.Y. 1866) (No. 4303) (civilian tried for murder in South Carolina seven months after the rebel army surrendered);
United States v. Commandant of Ft. Delaware, 25 F. Cas. 590 (C.C.D. Del. 1866) (No. 14,842) (four civilians tried for
murder of military guard after hostilities had ceased). The Egan court suggested that martial law is really no law at all but
simply the commanding officer's will, which takes the place of law that cannot be enforced under the conditions of war. The
court found that martial law could be indulged only as a matter of necessity; when order is restored, that necessity ceases and
the exercise of martial law is inappropriate.
Whether the military could continue to try civilians once order was restored was the subject of challenges to the use of
military government under the Reconstruction Acts, but was never definitively decided. Congress first sought to block the
Supreme Court's consideration of the question by removing the Court's appellate jurisdiction over habeas petitions. See Ex
parte McCardle, 74 U.S. (7 Wall.) 506 (1868). When the Court decided that it nonetheless had jurisdiction, Ex parte Yerger,
75 U.S. (8 Wall.) 85 (1868), the prisoner was released before the merits of the question were reached. See ERWIN
CHEMERINSKY, FEDERAL JURISDICTION 154-57 (1989) (discussing factual backgrounds of McCardle and Yerger).
[FN323]. Of course, the Dakota might have fared even worse in the state courts. Sibley may have been motivated to convene
a commission in order to ensure fairer trials than would have occurred in the state courts. See text accompanying notes 490-
494 infra. Similar motives may have led to the trial of the Lincoln murder conspirators before a military commission rather
than before a civil jury. See Thomas R. Turner, What Type of Trial? A Civil Versus a Military Trial for the Lincoln
43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 56
43 Stan. L. Rev. 13
[FN304]. See text accompanying notes 95-99 supra.
[FN305]. The statutory provisions were contained in the Articles of War enacted in 1806. Act of Apr. 10, 1806, ch. 20, § 1, 2
43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 54
43 Stan. L. Rev. 13
(Cite as: 43 Stan. L. Rev. 13)
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Stat. 359. Between 1806 and December 1862, there were only 12 amendments to the Articles. See FREDERICK C.
BRIGHTLY, ANALYTICAL DIGEST OF THE LAWS OF THE UNITED STATES, 1789-1857, at 83 (1858);
FREDERICK C. BRIGHTLY, ANALYTICAL DIGEST OF THE LAWS OF THE UNITED STATES, 1857-1863, at 1101-
03 (1863). I discuss in the text all the amendments relevant to the questions raised here.
[FN306]. Article 56 made it an offense to "relieve the enemy with money, victuals, or ammunition, or [to] knowingly harbor
or protect an enemy." Art. 56, 2 Stat. 359, 366 (1862). Article 57 established the offense of "holding correspondence with or
giving intelligence to the enemy either directly or indirectly." Id. art. 57.
[FN307]. Act of Feb. 13, 1862, ch. 25, § 4, 12 Stat. 339, 340. The original Articles of War prohibited only spying "in time of
war." § 2, 2 Stat. 359, 371 (1862). The prohibition on spying during time of rebellion was added in February 1862,
presumably to permit the military to try Confederates found spying within any part of the United States declared by the
President to be in a state of insurrection. See 12 Stat. 339, 340.
[FN308]. See arts. 91-92, 2 Stat. 359, 370. Courts of inquiry could be used to "examine into the nature of any transaction,
accusation or imputation against any officer or soldier." Id. art. 91, at 370. The statute provided that only the president or an
accused could order a court of inquiry, as courts of inquiry could be "perverted to dishonourable purposes, and may be
considered as engines of destruction to military merit, in the hands of weak and envious commandants." Id. art. 92, at 370.
Since a court of inquiry did not sit in judgment of an accused, it required only a recorder "to reduce the proceedings and
evidence to writing" rather than a judge advocate to act as prosecutor. See id. art. 91, at 370.
[FN309]. See Act of July 17, 1862, ch. 36, § 5, 12 Stat. 597, 598 ("the President shall appoint . . . a judge advocate general . .
. to whose office shall be returned, for revision, the records and proceedings of all courts-martial and military commissions,
and where a record shall be kept of all proceedings had thereupon").
[FN310]. See, e.g., Act of Mar. 3, 1863, ch. 75, § 30, 12 Stat. 731, 736 (murder, manslaughter, robbery, larceny, and certain
other crimes, when committed by military persons in time of war or rebellion, punishable by court-martial or military
commission); id. § 38, 12 Stat. 737 (spies to be triable by military commission or court-martial); Act of July 4, 1864, ch.
253, § 6, 13 Stat. 394, 397 (civil officials of quartermaster department amenable to trial by military commission or courtmartial
for neglect of duty and fraud). In each of these statutes, Congress simply stated that cases triable by court-martial
under statutory authority could also be tried by a military commission. Since military commissions and courts-martial were
conducted in the same manner, see note 269 supra, there seems no basis for distinguishing the two forms of trial. In 1864,
Congress enacted the first statute that specified trial by military commission for offenses not triable by court-martial. Act of
July 2, 1864, ch. 215, § 1, 13 Stat. 356 (commanders of departments and armies authorized to execute sentences imposed by
military commissions upon guerrillas for violation of the laws and customs of war). In the debate in the Senate preceding
passage of the Act, however, Senator Lyman Trumbull, committee member and floor manager of the bill, repeatedly stated
that the bill would not confer any new authority on military tribunals but would simply permit sentences of such tribunals to
be carried out without the delay caused by having to seek presidential approval. CONG. GLOBE, 38th Cong., 1st Sess. 3030,
3416-17 (1864).
[FN311]. Gen. Order No. 20, HQ Army at Tampico, Feb. 19, 1847, in Military Orders-Mexican War, NARG 94 (Entry 134).
The complete list of offenses in the General Order was "ssassination, murder, malicious stabbing, or maiming, rape,
malicious assault and battery, robbery, theft, the wanton desecration of churches, cemeteries or other religious edifices and
fixtures and the destruction except by order of a superior officer of public or private property." Id. Some of these offenses
referred to acts committed not by civilians but by soldiers, who were also included in the order establishing military
commissions. See text accompanying notes 313-316 infra.
[FN312]. On its face, Article of War 99 appears to provide ample authority to try soldiers for many acts not expressly made
unlawful by the statute:
All crimes not capital, and all disorders and neglects which officers and soldiers may be guilty of, to the prejudice of good
order and military discipline, though not mentioned in the foregoing articles of war, are to be taken cognizance of by a
general or regimental court-martial, according to the nature and degree of the offence, and be punished at their discretion.
Act of Apr. 20, 1806, ch. 20, § 1, art. 99, 2 Stat. 359, 371. In practice, however, the army had not viewed this provision as a
grant of authority to try soldiers for acts such as rape, murder, robbery, arson, and assault with intent to kill. See Caldwell v.
Parker, 252 U.S. 376, 381-83 (1920). Congress later remedied this problem by providing for military trial for such offenses
43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 55
43 Stan. L. Rev. 13
(Cite as: 43 Stan. L. Rev. 13)
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
by soldiers. Act of Mar. 3, 1863, ch. 75, § 30, 12 Stat. 731, 736.
[FN313]. Gen. Order No. 20, HQ Army at Tampico, Feb. 19, 1847, in Military Orders-Mexican War, NARG 94 (Entry 134).
In fact, individuals brought before these commissions were sometimes tried for offenses not expressly included in the list
enumerated in General Order 20. For example, the orders convening military commissions listed such offenses as burglary,
picking pockets, carrying a concealed weapon, riotous conduct, and attempting to pass counterfeit money, none of which
were contained in General Order 20. 1 W. WINTHROP, supra note 179, at 59-60.
[FN314]. Order No. 5, Mar. 13, 1848, in Military Orders-Mexican War (Puebla), NARG 94 (Entry 134); Order No. 36, May
21, 1848, in id.; Order No. 176, June 14, 1847, in Military Orders-Mexican War (Gen. Scott), NARG 94 (Entry 134).
[FN315]. Order No. 5, Mar. 13, 1848, in Military Orders-Mexican War (Puebla), NARG 94 (Entry 134).
[FN316]. Gen. Order No. 97, Apr. 7, 1847, in Military Orders-Mexican War (Gen. Scott), NARG 94 (Entry 134).
[FN317]. Order No. 30, HQ Dept. of Puebla, May 17, 1848, in Military Orders-Mexican War (Puebla), NARG 94 (Entry
134); Order No. 33, HQ Dept. of Puebla, May 19, 1848, in id.
[FN318]. Order No. 17, HQ Dept. of Puebla, May 3, 1848, in Military Orders-Mexican War (Puebla), NARG 94 (Entry 134).
[FN319]. See, e.g., J. RANDALL, supra note 296, at 91 (martial law declared in New Orleans; William Mumford convicted
and hanged for treason for tearing down United States flag after liberation of city).
[FN320]. See H.W. HALLECK, INTERNATIONAL LAW 782 (1861); see also S. BENET, A TREATISE ON MILITARY
LAW AND THE PRACTICE OF COURTS-MARTIAL 10-16 (4th ed. 1864). Halleck notes that in California, also the scene
of fighting in the Mexican War, such offenses were generally tried in the civil courts; the occupying army set up special
tribunals in only a few cases. H. HALLECK, supra, at 783.
[FN321]. Leitensdorfer v. Webb, 61 U.S. (20 How.) 176, 177-78 (1857); accord Mechanics' & Traders' Bank v. Union Bank,
89 U.S. (22 Wall.) 276, 295-97 (1874); The Grapeshot, 76 U.S. (9 Wall.) 129, 132-33 (1869); Cross v. Harrison, 57 U.S. (16
How.) 164, 189-90 (1853). But see Jecker v. Montgomery, 54 U.S. (13 How.) 498, 515 (1851) ("neither the President nor any
military officer can establish a court in a conquered country, and authorize it to decide upon the rights of the United States, or
of individuals in prize cases, nor to administer the laws of nations"; the courts established in Mexico by the military
commanders were "nothing more than agents of the military power, to assist it in preserving order in the conquered
territory").
[FN322]. Several lower federal courts rejected the use of martial law in the period following the end of hostilities in the Civil
War, granting writs of habeas corpus to release prisoners held under military authority. See, e.g., In re Egan, 8 F. Cas. 367
(C.C.N.D.N.Y. 1866) (No. 4303) (civilian tried for murder in South Carolina seven months after the rebel army surrendered);
United States v. Commandant of Ft. Delaware, 25 F. Cas. 590 (C.C.D. Del. 1866) (No. 14,842) (four civilians tried for
murder of military guard after hostilities had ceased). The Egan court suggested that martial law is really no law at all but
simply the commanding officer's will, which takes the place of law that cannot be enforced under the conditions of war. The
court found that martial law could be indulged only as a matter of necessity; when order is restored, that necessity ceases and
the exercise of martial law is inappropriate.
Whether the military could continue to try civilians once order was restored was the subject of challenges to the use of
military government under the Reconstruction Acts, but was never definitively decided. Congress first sought to block the
Supreme Court's consideration of the question by removing the Court's appellate jurisdiction over habeas petitions. See Ex
parte McCardle, 74 U.S. (7 Wall.) 506 (1868). When the Court decided that it nonetheless had jurisdiction, Ex parte Yerger,
75 U.S. (8 Wall.) 85 (1868), the prisoner was released before the merits of the question were reached. See ERWIN
CHEMERINSKY, FEDERAL JURISDICTION 154-57 (1989) (discussing factual backgrounds of McCardle and Yerger).
[FN323]. Of course, the Dakota might have fared even worse in the state courts. Sibley may have been motivated to convene
a commission in order to ensure fairer trials than would have occurred in the state courts. See text accompanying notes 490-
494 infra. Similar motives may have led to the trial of the Lincoln murder conspirators before a military commission rather
than before a civil jury. See Thomas R. Turner, What Type of Trial? A Civil Versus a Military Trial for the Lincoln
43 STNLR 13 FOR EDUCATIONAL USE ONLY Page 56
43 Stan. L. Rev. 13