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were published for the Government of the Armies of the U.S. in the field. Section 13 of the "instructions" is as follows:

    "Military jurisdiction is of two kinds - 

first, that which is conferred and defined by the statute, second, that which is derived from the common law of war.

     Military offences under the statute law must be tried in the manner therein directed but military offences which do not come within the statute must be tried and punished under the common law of war."
     The character of the Courts which exercise these jurisdictions depends upon the local laws of each particular country. In the Armies of the United States the first is exercised by Court Martial while cases which do not come within the rules and articles of war or the jurisdiction conferred by statute on Courts Martial are tried by Military Commissions.
     All the authorities which I have been able to examine upon this subject, harmonize with these instructions. According to the laws of war, there is nothing more sacred than a flag of truce dispatched in good faith, and there can be no greater act of perfidy and treachery than the assassination of its bearers, after they have been acknowledged and received by those, to whom they are sent. No statute of the United States makes this act a crime, and therefore it is not punishable under the "rules and articles of war" and if punishable at all, must be through a power derived from the usages of war. Kindred to the act in question in bad faith, is the breaking of his parole by a paroled prisoner.
     While the United States were at war with Mexico, several officers of the Mexican Army were tried by a Military Commission composed of officers of the United States army and convicted and sentenced to be shot and executed for breaking their paroles. Numerous trials of a similar nature took place during the war of the Rebellion but there are no statutory provisions whatever upon the subject and the whole power of the military authorities in such cases is derived from the usages of

war.

     On the 23rd of August 1865 a Military Commission duly appointed, assembled in the city of Washington for the trial of Henry Wirtz, who pleaded among other things that the Military Commission had no jurisdiction over either his person or over the subject matter of the charges and specifications, being a tribunal unauthorized by either statute, military law, or well established usage.
     But this plea was overruled and he was convicted upon several charges, one of which was murder in violation of the laws and customs of war and after sentence he was hung for his crimes.
     All the proceedings in this case derived their authority and validity from the common law of war.