individuals. On the contrary it is the usage and custom of war among all civilized nations to refer such cases to a duly constituted military tribunal composed of reliable officers, who acting under the solemnity of an oath and the responsibility always attached to a court of record will examine witnesses, determine the guilt or innocence of parties accused and fix the punishment. This is usually done by courts-martial; but in our country these courts have a very limited jurisdiction botli in regard to persons and offenses. Many classes of persons cannot be arraigned before such courts for any offense whatsoever, and many crimes committed even by military officers, enlisted men or camp retainers cannot be tried under the "Rules and Articles of War." Military commissions must be resorted to for such cases and these commissions should be ordered by the same authority, be constituted in a similar manner and their proceedings be conducted according to the same general rules as courts-martial in order to prevent abuses which might otherwise arise. II. As much misapprehension has arisen in this department in relation to this subject the following rules are published for the information of all concerned: First. Military commissions can be ordered only by the General-inChief of the Army or by the commanding officer of the department, and the proceedings must be sent to headquarters for revision. Second. They will be composed of not less than three members, one of whom will act as judge-advocate and recorder where no officer is designated for that duty. A larger number will be detailed where the public service will permit. Third. All the proceedings will be recorded and signed by the Presi dent and judge-advocate and recorder as in the case of courts-martial. These proceedings will be governed by the same rules as courts-martial so far as they may be applicable. Fourth. Civil offenses cognizable by civil courts whenever such loyal courts exist will not be tried by a military commission. It should therefore be stated in every application for a commission whether or not there is any loyal civil court to which the civil offenses charged can be referred for trial. It must be observed, however, that many offenses which in time of peace are civil offenses become in time of war military offenses and are to be tried by a military tribunal even in places where civil tribunals exist. Fifth. No case which by the Rules and Articles of War is triable by a court-martial will be tried by a military commission. Charges therefore preferred against prisoners before a military commission should be "violation of the laws of war," and never "violation of the Rules and Articles of War," which are statutory provisions defining and modifying the general laws of war in particular cases and in regard to particular persons and offenses. They do not apply to cases not embraced in the statute; but all cases so embraced must be tried by a court-martial. In other cases we must be governed by the general code of war. Sixth. Treason as a distinct offense is defined by the Constitution and must be tried by courts duly constituted by law; but certain acts of a treasonable character such as conveying information to the enemy, acting as spies, &c., are military offenses triable by military tribunals and punishable by military authority. Seventh. The fact that those persons who are now carrying on hostilities against the lawful authorities of the United States are rebels and traitors to the Government does not deprive them of any of the rights of war so far as the military authorities are concerned. In our intercourse with the duly authorized forces of the so-called "Confederate States" and in the treatment of prisoners of war taken from such forces we must be governed by the usages and customs of war in like cases. But the rights so given to such prisoners by the laws of war do not according to the same code exempt them from trial and punishment by the proper courts for treason or other offenses against the Government. The rights which they may very properly claim as belligerents under the general rules of belligerent intercourse-commercia belli-cannot exempt them from the punishment to which they may have subjected themselves as citizens under the general laws of the land. Eighth. Again a soldier duly enrolled and authorized to act in a military capacity in the enemy's service is not according to the code military individually responsible for the taking of human life in battle, siege, &c., while at the same time he is held individually responsible for any act which he may commit in violation of the laws of war. Thus he cannot be punished by a military tribunal for committing acts of hostility which are authorized by the laws of war but if he has committed murder, robbery, theft, arson, &c., the fact of his being a prisoner of war does not exempt him from trial by a military tribunal. Ninth. And again while the code of war gives certain exemptions to a soldier regularly in the military service of an enemy it is a wellestablished principle that insurgents not militarily organized under the laws of the State, predatory partisans and guerrilla bands are not entitled to such exemptions; such men are not legitimately in arms and the military name and garb which they have assumed cannot give a military exemption to the crimes which they may commit. They are in a legal sense mere freebooters and banditti and are liable to the same punishment which was imposed upon guerrilla bands by Napoleon in Spain, and by Scott in Mexico. By order of Major-General Halleck: JNO. C. KELTON, Assistant Adjutant-General. ST. LOUIS, January 2, 1862. CHARLES C. WHITTELSEY, Esq., Saint Louis, Mo. SIR: Your letter of the 31st has been received and its contents noted. You are entirely mistaken in relation to the animus of General Price. The fairest offers have been made to him but he scouts them and says he will fight the Federal Government to the bitter end. The time for conciliation I am sorry to say has passed. Nothing but the military power can now put down the rebellion and save Union men in this State. It is useless now to try any other remedy. Your suggestions about detecting railroad bridge-burners will receive due consideration and be acted on where circumstances will permit. Very respectfully, &c., H. W. HALLECK, WELLSVILLE, Mo., January 2, 1862. Col. J. C. KELTON, Assistant Adjutant-General, Saint Louis, Mo. COLONEL: I have the honor to urgently request the immediate action of the commanding general upon a matter which I regard of vital importance. Upon my arrival at Warrenton I found a battalion of Reserve Corps Cavalry under command of Major Hollan the only cavalry at my disposal. These men had preceded me only a few days but they had already murdered one of the best Union men in that vicinity and committed numerous depredations upon the property of peaceful citizens. Since that time their conduct has been absolutely barbarous-a burning disgrace to the Army and the Union cause. In spite of all my efforts to the contrary they have plundered and destroyed the property of citizens, many of them the best Union men in the State, to the amount of many thousands of dollars. Their officers either counive at it or else have no power to restrain their men. I cannot trust them out of my sight for a moment and of course they are of no use to me as cavalry so long as this is the case. I have succeeded in detecting five of the robbers and have them in irons, and have arrested the major and one of the captains and placed them in close confinement. I have placed Lieutenant Sheldon, of my staff, in command of the two companies at this post, but I cannot long spare him from his proper duties and there are still three companies at other posts and it is beyond my power to prevent their acts of robbery if I make any use of them. No doubt there are some good men in this battalion but as a class they are well-armed and well-mounted barbarians. I am told there is at Benton Barracks a considerable force of good mounted men without arms. I therefore urgently request that a battalion of them be sent without arms or horses and that I be authorized to dismount and disarm Major Hollan's battalion and send it to Saint Louis. If something of this kind be not done soon there will be very few Union men in this part of the State. I will as soon as possible forward charges against Major Hollan, Captain Wenkel and the men I have arrested. Very respectfully, your obedient servant, J. M. SCHOFIELD, Brigadier-General, Commanding. SAINT LOUIS, January 3, 1862. Brigadier-General SCHOFIELD, Wellsville, Mo. GENERAL: Your letter of yesterday is just received. I have no cavalry to send in place of Hollan's command. As soon as you can dispense with this command send it back to Benton Barracks. If you think the officers and men who are in arrest had better be tried there I will order a military commission immediately on your sending the names of five officers suitable for such a court and one for recorder. If you think that they can better be tried here send all the prisoners and witnesses to this city where there is now a commission in session; but don't send them at the same time with the command. They will require a different escort. The offenses of each should be stated fully so that charges and specifications may be drawn up here. If their crimes are proved they will not be likely to escape punishment. Having all the witnesses there I think a military commission might dispatch the cases in a few days. I send you a couple of memoranda which may help you in finding out some of the bridge-burners. The names of the writers are known to me and are represented as reliable men. Very respectfully, your obedient servant, H. W. HALLECK, Major-General. HEADQUARTERS DEPARTMENT OF THE MISSOURI, Brigadier-General SCHOFIELD, Wellsville, Mo. GENERAL: It has been represented to me by Union men who live along the North Missouri Railroad that the best way to ascertain who are the bridge-burners would be to appoint a military commission to sit at Wellsville or Mexico who might try parties accused and compel witnesses to attend and give their testimony. For example it is said that one Wells, who lives at Mexico and is a rank secessionist-although he pretends to be a Union man-has two sons in Price's army, or had-knows all about who are the bridgeburners in that part of the country and will give evidence if compelled to. Other names have also been given. If you think well of this and suggest the names of officers for such a commission I will order it. I can send one officer from here to act if necessary. It is all-important that these culprits be brought to justice and I hope you will not leave until you accomplish it. Those condemned can be brought here for punishment. Perhaps it would not be safe to execute any one there. Yours, truly, H. W. HALLECK, LANCASTER, OHIO, January 5, 1862. Maj. Gen. H. W. HALLECK, Saint Louis, Mo. DEAR SIR: The ground on which you can treat these railroad destroyers as military criminals is that they are within your lines in the guise of peaceful citizens, destroying life and property, and therefore as secret enemies caught in the warlike act amenable to martial law. The secessionists cannot except to it for in Tennessee they hang all the bridge-burners they can catch, and in this case you very truly say severity is mercy. However, all you want is to protect life and property and perhaps the best way to do it is this: Try by a court-martial all that you have caught; hang at once two or three of the ringleaders in the presence of their fellows; sentence a dozen or twenty or even fifty of the most culpable and reprieve them for a time with the distinct understanding that they will be hanged according to sentence if further depredations are committed by their associates but that they may hope for mercy if there is order and peace. Discharge the least culpable and let them go home and carry the conditions with them with the assurance that if they themselves are caught again they will find no mercy. And in holding as hostages care should be taken to hold from each neighborhood, family and clique one or more. The scoundrels engaged at the Little Platte deserve more severe handling than those you have caught for they deliberately planned and committed the most cruel, indiscriminate murder of men, women and children. I am, very respectfully, yours, T. EWING. Major-General HALLECK. SAINT LOUIS, January 6, 1862. GENERAL: The man you mention calling himself colonel in the State militia has authority to raise a regiment. You have seen the general order prohibiting all intermeddling with home guards and reserve corps. I will send him a copy of that order and of your note and if he continues to excite disaffection in either body in the U. S. service shoot him by all means as he will deserve it as well at my hands as at yours. I would like very much to see the shooting process begin and will undertake to provide you with suitable subjects (beginning with Jennison) until the service is purged from men who disgrace humanity and ruin the cause of our Government. Very respectfully, your obedient servant, H. R. GAMBLE. SAINT LOUIS, January 7, 1862. H. R. GAMBLE, Governor of Missouri. MY DEAR GOVERNOR: I hardly know what to do with the class of persons to whom you allude in your note which is just received. Reliable gentlemen in the interior write that nearly every one of this class when released and allowed to return to their homes secretly assist in stirring up rebellion, bridge-burning, &c., and are continually sending information to Price of the state of affairs within our lines. Indeed Ï believe many of them pretend to give themselves up for that very purpose and are nothing more or less than spies. Of course there are some honorable exceptions. I speak only of the mass. It seems to be too hard to arrest and confine all and yet it is difficult to make distinctions except in cases where their loyalty is fully vouched by reliable Union men. The only feasible plan suggested is to require a stringent oath and parole of honor of all persons released with the full understanding that they would incur the penalty of death by violating it. If they refuse to take this hold them as prisoners of war subject to exchange as such if an exchange should be authorized. It is proposed moreover to permit no one to take this oath and receive his release unless we have very satisfactory assurances that he will keep it. If after voluntarily taking it he shall violate it then impose the penalty with rigor. A few examples would probably put a stop to its violation. If however you can propose anything better I shall be most happy to receive your suggestions. I inclose a copy of the proposed oath and parole.* Very respectfully, &c., Major-General HALLECK, H. W. HALLECK, WELLSVILLE, Mo., January 8, 1862. Commanding Department of the Missouri, Saint Louis, Mo. GENERAL: I find here your ordert appointing a military commission in accordance with my suggestion and also your letter of the 3d *Not found. Omitted. Refers to Special Orders, No. 17, revoked in Special Orders, No. 28, of January 10, 1862, for which see p. 254. |