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Certain persons it will be remembered were tried and convicted in the same way for the assassination of President Lincoln.

  Attorney General Steed in discussing this object (opinion Vol. II page 297) says that we have seen that when war comes, the laws and usages of war come also, and that during the war they are part of the laws of the land under the Constitution. Congress may define and punish offences against the laws, but in default of Congress defining those laws and prescribing a punishment for their infraction, and the mode of proceeding to ascertain whether an offence has been committed, and what punishment is to be inflicted - the Army must be governed by the laws and usages of war as understood and practiced by the civilized Nations of the world."
   Again - "If the prisoner be a regular unoffending soldier of the opposite party to the war, he should be treated with all the courtesy and kindness consistent with his safe custody. If he has offended against the laws of war, he should have trial and punishment as the laws of war require.
   A spy, though a prisoner of war, may be tried, condemned and executed by a military tribunal without a breach of the constitution.
   A Bushwacker, a Jayhawker, a bandit, a war rebel, an assassin - being public enemies - may be tried, condemned and executed as offenders against the laws of war." 
   The laws of Nations, which is the result of the experience and wisdom of ages has decided that Jayhawkers, bandits etc. are offenders against the laws of Nature & War, and as such amenable to the military.
   Our Constitution has made these laws a part of the laws of the land ( see also Vattel 359, Wheaton's International Law 416, Woolsey's Int. Law 220, Halleck's Int. Law 400) Milligan's case 4, Wallace page 2, holds under the circumstances herein stated, a Military Commission to be illegal, but the facts there are entirely different from those under consideration. Milligan was the resident of a state not in Rebellion. The Courts were open an unobstructed for his persecution. He was neither a prisoner of war nor attached in any way to the military or naval service of the United States.
   According to the instructions referred to, no civil tribunal has jurisdiction in the case disclosed by the papers before me.
  
 Sec. 40 and 41 therefore are as follows:

 Sec. 40:  There exists no law or body of authoritative rules of action between hostile enemies, except that branch of the law of nature and Nations which is called the law and usages of war on land.

Sec. 41: All municipal law of the ground, on which Armies, or of the countries to which they belong, is silent and of no effect between Armies