Richmond Whig. [volume] (Richmond, Va.) 1862-1865, 1863-05-15
RETALIATIoN UPON THE ENEMY.
REPORT OF THE JUDICIARY COMMITTEE OF
THE CONFEDERATE sENATE--THE ACTION OF

-
CONGRESS-. rs I.+-3~
The following report of the Judiciary Committee OF
the Confederate Senate on the resolution in regard to
retaliation on captured officers, through State tribunals
was submitted by Mr.. Semmes of La, in secret ses-
sion
The judiciary Committee in response TO resolution
adopted by the Senate on the 26th January 1868, d
recng an inquiry to be made as to the liability OF cap
tured officers o. the United States army to be treated
as criminals under State laws and punished as such by
the State tribunals, submit the following report:
The resolution alluded 70 requires the committee TO
inquire and report whether an officer Of the army OF
the United States acting under the authority OF that
Government can be made liable to punishment as
criminal for violation of the criminal laws OF State by
State tribunal when turned over to State authorities
by order of the President" -
understood by referring to that portion oil the Fresi
dents Message transmitted TO the Senate ON the IZth Oh
January last in which the President, after treating VITA
proper deestaton and contempt the emancipation pro-
calatiOn issued the lst day OF January, 1868, by
the Chief Magistrate Of the United States, uses the fol-
lowing language $50 far regards the action OF this
Government on such criminals may attempt its exc
cuton confue myself informing youI that shall,
unless in your wisdom you deem some other course
more expedient deliver TO the several State authorities
oil commissioned officers that may be hereafter captured
by our forces in any of the States embraced IN the pro-
camatiOn that they may be dealt with IN accordance
ment of criminals engaged in exciting serve insurree-
| ton"
The course indicated in the Executive Message s re-
earded as part of system of retaliation which the
President PROPOSES to naugurate, and therefore, the
question presented in the resolution referred to- the com
ni,tee is question in which the enemy has interest
Retaliation having been determined on by the Presi-
dent tie mode OF its execution so far as the beliger.
ents are concerned is of discreon and the enc
my cannot complain whether itbe contaminated through
/ Tlff he ant
hem TO be solved is whether the proposed plan OF
aliaon con.be put into effective operation, through
the agency Of the State tribunals. Can The State tri-
bunals try and punish the captured officers of the Uni
ted States as ieons under ;he State aws clear he
can be punished who violates the law but it must be
determined in the first instance, whether or not the
pubaenemy can be subjected TO the operation OF the
| municipal law. If the local Law be obligatory on the
public enemy the difficulty surmounted, and not only
would the President be justified in turning over the
eaDured officers TO the State authorities for punishment
but the State might lawfully demand of him the surren
der of such criminals for trial. aud refusal to comply
with such demand would be inconsistent with executive
duty. Such action, however, could not be denomnated
reaFatioa which is an incident of and belHger
ent right il could be regarded in no other light than
Nhe ordinary administration Of ustce-the trial and
punishment Of felops-the performance OF duty
as obligatory in peace as in war. Therefore, in ordr
10 asceItai whether or not the captured othce
of the enemy nav be lawfully tried and punished
criminals by the State tribunals, must first deter
mine the extent 70 which they are affected by the mu
ricipal laws Of the State. The committee, after DELHI
crate reflection have reached the conclusion that the
municra law Of an Invaded State is not obligatory
an Invading army OF the public enemy, acting under
the authority Of It's government end, therefore, the
members of that army, officers men, cannot be sub
iected TO trial and punishment by State tribunal r
crimes alleged 10 have been committed against the
safe. Ii tie public enemy, when captured, may be
tried and puujshRd for exciting seEvie instruction, no
reason Z be assigned why he may not be tried and
punished tor murder arson, larceny, Iobbing any
other crime misdemeanOr. The turpuude OF the
ime res affect the principle, for If the municipal
law he bgaiory the enemy al all, 1t IS obligatory
in oil its parts.
What Is tie principle which vitalizes the municipal
law and constitutes /, an obligatory ue Of action for
the individual members oil society? Il is tails; in
exchange Tor the projection afforded by society the
corresponding obligation Of obedience to the laws
Is exacted from its members. Protection and
obedience correlative obligations Where there is
duty the part Of the State to protect there sno
obligation the part OF the individual 10 obey. When
an alien friend his loot territory, he enjoys
Inc protection Afforded by our government snd during
his sCjOurn here his lie his liberty and his property
are faithfully guarded BY the municipal law; hence he
owes to the government what is call temporary ale
galce, or more properly obedience. Hence, lie je
hound By yiuo OF that obedience to respect AID con-
lo,m TO the laws Of the land and may be punished for
violating them in the same manner as a citizen
The alien eneny Who is found scjourGng in the country
ut the breaking out Of hostites, and is rot ordered 10
depart i permitted TO remain under, q tac safe con-
duct; while thus reUaEiug, he enjoys the protection Of
our laws and therefore, Is punishable for crimes COM
mitted here. The prisoner of who submits TO
arms receives qualified protection and, therefore, be
may perhaps he punished for offences against the inu
uicpa law committed uTter capture. But the invading
army and al is members enter our territory open
and public eneuies under authority from the begerent
government; protection Is afforded on the side
and none is expected on the other; 10 obedience to
any law OF The invaded country is exacted, aud none is
given en- the contrary, the invading army, within
the limits of the territory occupied BY ii, dis.
places the local law and substitutes in its stead,
that Of its Government. Or if the local law
be permitted TO operate at alt h ceases to BE- the law of
the country invaded and becomes the municipal law OF
the government of the enemy. To constitute the oense
Of MURDER Blackstone informs us that the decesse at
the time Of the killing mast be in the peace Of the King
aud therefore, any one may kill an alien enemy with
mpunity. This rule, OF course, does not apply TO
prisoners Of war; persons under safe conduct express
or mpes for the reasons heretofore stated An alien
enemy unless he be in tie country under conduct
osLnO. nstac suit in courts, because he is not
entitled TO protection can he apply for
the writ Of hdbsds corpus, be brought.ou such
writ TO testify as witness. For him there
Is no law H. therefore, ~ law DC suspended to him,
hathe may be allied pleasure, it would be mani
testify unjust aud unreasonable, 20 exact from hih ODE
dience to the law which repudiate5 and outlaws him..
These not novel doctrines. The English courts in
the time OF Qoeen Elizabeth decided that 81 if aliens
come a. eucme into tberelm aud possess themselves
Of a town or fort and one OF them have issue born
here this s is alien for it is not cocum solunl
that makes subject 6m .Ee being born wiip the ale
gianee AID ,sndss Ms proieetioH Of the King" The
same court ;b0ry afterwards held THAT if the King of
England enter with bis army, in hostile Manner the
territories Of sny other Prince if any be born within
the places possessed by the Kings army, and con,ss
gasay 0ithh h5 protection, such person ia subject
born TO the King England If from parents subject On
not hostile"
The doctrine has been repeatedly recognized
and acted upon America. In the case of the United
STATES Rice, reported in 4th Wheaton, the Supreme
Court used the following language "By The conquest
and military occupation of Castme, the enemy acquired
that firm possession which enabled him to exercise the
fullest rights Of sovereignty that place. The soUe-
roigHty Of he United States oas Of course sapndsd,