DAVIS, NOVEMBER 17, 1902

Reports of investigations regarding the death of Father Augustine de la Pena, and opinion Of the Attorney-General as to trial of Cornelius M. Brownell therefor.

NOVEMBER 17, 1902.

The SECRETARY OF WAR

SIR: In conformity to your written instructions of September 18, 1902, I have the honor to submit the following report upon the case of Father Augustine de la Pena, which was communicated to the President on September 6, 1902, by a connnittee of which Charles Francis

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Adams, esq., was the chairman. The committee's letter of September 6, 1902, together with an earlier communication on the same subject bearing date July 23, 1902, with their inclosures, are attached as exhibits A to E, inclusive. The following are the instructions under which the inquiry has been conducted:

Respectfully referred to the Judge-Advocate-General of the Army with instructions to call upon Mr. Charles Francis Adams and his associates to furnish him with any evidence in their possession showing the commission of the crimes described in these letters by officers or men of the U. S. Army, and if in any case the charges shall appear to be well founded, to take proceedings to bring the offender to justice.

If in any case the charges appear to be well founded against a person who has become separated from the service, such case is to be reported to the Secretary of War for reference to the Department of Justice.

Immediately upon the receipt of the foregoing instructions the following letter was addressed to the Hon. Charles Francis Adams:

I am directed by the Secretary of War to acknowledge the receipt of your letters to the President of July 23 and September 6, 1902, which have been referred to him for administrative action.

With a view to such action he desires me to request that you furnish the Department with any evidence in your possession showing the commission of crimes by officers or enlisted men of the Army in the Philippine Islands, or which will tend to establish the existence of the irregular or unlawful practices which were made the subject of representation in your letters to the President. The favor of an early reply will be appreciated.

Under date of September 25, 1902, the following reply was received from the committee's attorneys, Messrs. Moorfield Storey and Julian Codman, the receipt of which was duly acknowledged:

Mr. C. F. Adams has referred to us your letter of September 20 with the request that we furnish you with such evidence as is in our possession of the facts relating to the death of the Roman Catholic priest mentioned in the committee's letter to the President of September 6.

In accordance with this request we inclose copies of affidavits of William J. Longe, Walter H. Snow, Albert L. Cross, John J. Bresnahan, and Ralph H. Baker, all at the date of the offense charged privates in Company D of the Twenty-sixth U. S. Volunteers, and also their addresses at the time the affidavits were taken.

Other material witnesses, of whose whereabouts we are not informed, are mentioned in the affidavits. Sergeant Woodside was a short time ago employed in the Boston post-office, and Private Labelle, who, we are informed, has some knowledge of the facts of the case, was at that time living at 12 Sheppard street, Lynn, Mass. Captain Brownell lives in Burlington, Vt.

We send also under a separate cover a pamphlet containing the facts in several other cases, marked in red pencil, which would seem to require further investigation.

Copies of the affidavits above mentioned, together with a printed pamphlet, which was inclosed as a part of the committee's case, are attached hereto as Appendices D and L, respectively.

It will be observed that the charges relate to acts which are alleged to have been committed by officers and enlisted men of Company D of the Twenty-sixth Regiment of U. S. Volunteer Infantry, an organization which was mustered out of the military service at San Francisco, Cal., on May 13, 1901. As the organization rolls of Company D, which are on file in the Department, show the place of enlistment of each of the officers and enlisted men who were members of the company at the date of its muster in, it was determined to send Col. Edward Hunter, of the Judge-Advocate-General's Department, to the locality in which that organization was recruited to conduct an investigation among such of the officers and enlisted men as could be found in or near the places of their original enlistment. Colonel Hunter was furnished with detailed instructions which fully outlined

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the field of his inquiry. As it seemed desirable that each witness should be examined under circumstances best calculated to elicit the truth, a clause was inserted in his instructions directing that, as far as possible, the inquiry should be confidentially conducted. (Appendix H.) The duty intrusted to Colonel Hunter was thoroughly performed, and his report, which contains the sworn testimony of the witnesses examined by him, is attached hereto as Appendix H.

Although the organization to which the accused persons belonged had been discharged from the military service, it was still possible that some information in respect to the acts charged might be obtained in the Philippine Islands, and the following instructions were therefore sent to the commanding general, Military Division of the Philippines:

I inclose herewith copy of communication addressed to the President by a committee of which the Hon. Charles Francis Adams is the chairman. In the letter dated August 22, 1902, a specific charge of wrong-doing is made against certain officers of volunteers who were stationed at Banate, Island of Panay, during the month of December, 1900. The returns show that Company D of the Twenty-sixth Regiment of Volunteer Infantry constituted the garrison at Banate at the date in question, and that Capt. Cornelius M. Brownell, Twenty-sixth Volunteer Infantry, was its commander, and that First Lieut. William Sullivan and Second Lieut. Sanford E. Worthington were on duty with the company from March 1, 1900, to February 26, 1901. I also inclose the affidavits of certain members of Company D, Twenty-sixth Volunteer Infantry, which have been submitted to the Department in reply to a request to that effect.

The Secretary of War directs that the matter be made the subject of immediate and thorough investigation. The officers composing the garrison are no longer in the military service, and that branch of the inquiry will be conducted in the United States. The post surgeon at Banate, at the date of the acts above alleged, Capt. Oscar W. Woods, assistant surgeon of volunteers, is now in the military service. In December, 1900, he was a contract surgeon, and is possibly familiar with the acts which are said to have occurred there in connection with the treatment of Father Augustine de la Pena. He also directs that, so far as possible, the inquiry shall be confidentially conducted, and that the Adjutant-General be advised from time to time of its progress. Should it appear that any persons now in the military service have been connected with the unlawful acts which have been made the subject of the inclosed allegations, he directs that they be brought to trial with the least practicable delay.

Reports were also called for from General Hughes, the commanding general of the Department of the Visayas, and from Col. Edmund Rice, Twenty-sixth Volunteer Infantry, the commanding officer of the district in which the town of Banate is situated. Similar reports were obtained from officers of the Army who were formerly members of the Twenty-sixth Regiment of Volunteer Infantry. Their replies are hereto attached (Appendix J).

The facts in the case, which are fully set forth in the accompanying testimony and reports, are as follows: The Twenty-sixth Volunteer Infantry formed a part of the force which was assigned to the military occupation of the island of Panay. Company D of that regiment, commanded by Capt. Cornelius M. Brownell, after taking part in the operations in the field which were carried on during the winter of 1899 and 1900, was assigned to a small subdistrict in eastern Panay, of which the town of Banate on the seacoast, about 25 miles to the north of Iloilo, was the administrative center. The garrison of this subdistrict, of which Captain Brownell was the commander, consisted of one company, "D," of the Twenty-sixth Volunteer Infantry, and was augmented from time to time by detachments from the Thirty-eighth U. S. Volunteers and the Eighteenth Regiment of Regular Infantry.

About the middle of October, 1900, Captain Brownell, upon his return from an expedition into the district of Sava [Sara], found that the

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inhabitants of the town of Banate had become disaffected during his absence and that there was some evidence that acts of positive disloyalty were in contemplation. After inquiry, it was ascertained that a bolo company was in process of organization with a view to an attack upon the garrison of the place. The natives implicated were arrested, and the local presidente, after having broken his parole and escaped, was recaptured, tried by military commission and sentenced to ten years' imprisonment in the Bilibid Prison in Manila. It was also discovered that the presidente had been warned by a priest named Augustine de la Pena, the parish priest at Molo, who was a relative of Quintin Salas, the chief insurgent leader in eastern Panay.

Upon inquiry at the department headquarters at Iloilo, Captain Brownell ascertained that Father Augustine de la Pena, while professing sympathy with and loyalty to the United States, was in fact a leader in the insurrectionary party and was acting as treasurer of funds raised in the island with a view to the prosecution of the insurrection against the authority of the United States. So early as February, 1900, the conduct of Father Augustine had become so suspicious that application for his arrest had been made to General Hughes by Lieutenant-Colonel Dickman and Major Henry, both of the Twenty-sixth Volunteer Infantry, but the arrest was not made, as evidence sufficient to incriminate him was not then obtainable. Lieut. Garrison Ball, Artillery Corps, a former officer of the Twenty-sixth Volunteer Infantry, was informed by the parish priest of Janiuay that "Padre Augustine levied taxes for the insurgents and had relatives in the field against our forces;" he also states, upon the authority of a sergeant of native scouts, " that at times Father Augustine took the field in command of forces operating against us." (Lieutenant Ball's report, Appendix I.)

Some months later, about midsummer of 1900, information was received that Father Augustine was about to change his residence from Dumangas to Janiuay, which would have been, in General Hughes' opinion, "an ideal position for the purpose of obstructing our work." (General Hughes' Report, April 30, Appendix G, p. 2.) With a view to meet this movement, and at the same time to advance the interests of the military occupation, it was determined to occupy both Janiuay and Maasin, whereupon Father Augustine established himself at Molo, which was the seat of the insurgent junta, and the commanding officers at Leon and Maasin were instructed to observe the Father closely, as he was an active enemy. Late in November, 1900, in pursuance of General Hughes's instructions, Father Augustine was arrested by the commanding officer at Maasin, Captain Butts, of the Eighteenth Infantry, while attempting to pass the line of posts, and on November 23 was placed on board the United States gunboat Paragua at Iloilo for transportation to Banate, where he landed on the following morning and was transferred to Captain Brownell for safe-keeping. When captured, Father Augustine was dressed in the khaki uniform of a sergeant of the regular artillery. His vestments, which were found in his possession at the time of his capture, were also delivered to Captain Brownell at Banate. In view of his importance, as he was the acting bishop of the diocese of Jaro, General Hughes tried, but without success, to find a suitable place of confinement for the prisoner in Iloilo, but as it had been represented to him

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that he was confined in a church at Banate, where he could be comfortably accommodated, he decided to leave him for the time in Captain Brownell's custody.

Immediately after he arrived at Banate, as a prisoner, and during the temporary absence of the post commander, Father Augustine addressed the following communication to General Hughes, in which he admitted having taken part in the insurrectionary movement:

I hereby certify that I am the head of the insurrection on the island of Panay; that I have been the headquarters for furnishing money and arms for the insurgent cause; that in the future I promise allegiance to the United States of America, and that I will do all in my power to aid you to establish peace in this island. Also that I send this letter of my own free will and accord. (Brownell's statement, Appendix H.)

Captain Brownell returned to Banate on the following day, and a few days later summoned Father Augustine into his presence and told him "plainly that he would be compelled to deliver to me [Captain Brownell] the funds in his possession belonging to the insurgent forces, and papers known to be in his possession implicating others who had taken the oath of allegiance to the United States." (Captain Brownell's statement, Appendix H, p. 4.) This Father Augustine refused to do, denying that be was a sympathizer with the insurgent forces, or that he had had dealings or communications with them of any sort, or that he knew anything about their cause. Captain Brownell says in his statement that he "held daily conversations with him for a period of three or four days, endeavoring in every possible way to influence him to surrender the papers and money in his possession without compulsion," and "promising him fair treatment on the part of the Government." (Ibid., p. 4.) Father Augustine concluded by denying "everything in the statement he had previously made, said that it was written in English, and he was told to sign it, and he thought it was a letter to be used to inform his friends where he was."(Ibid., p. 5.)

A limited time was then given Father Augustine in which to decide whether to surrender the money and papers which were believed to be in his possession. The time having expired, he was told that he would be blindfolded and subjected to the administration of the "water cure" until he acceded to Captain Brownell's demand. The priest having again denied all knowledge of the matters above mentioned, the water cure was administered by a detachment of enlisted men belonging to Company D, Twenty-sixth Volunteer Infantry. As a consequence of its administration Father Augustine admitted that he had some money in his possession, but that it belonged to the church. He was then informed that he would be required to deliver the papers and moneys to Captain Brownell immediately (Ibid., p. 5), and as he refused to do this the water cure was again administered; as a consequence of which the prisoner consented to sign the order upon the house of Hoskyn & Co. without further resort to force. After having agreed to do this he subsequently declined; whereupon, seeing that preparations to again administer the water cure were being made, he signed the order for the delivery of the funds to the military authorities.

A little later his cassock was examined, and in it were found the original deposit receipts on the banks and the house of Hoskyn & Co., together with numerous papers, receipts for money from different citizens and churches, which were delivered by me to the then judge-advocate of the Department of the Visayas, together

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with other papers and evidence collected by me bearing on this case and implicating some of the prominent natives in the city of Iloilo and that vicinity. One of these papers was a receipt which read, so near as I can remember, as follows, being written in Spanish:

"We, the undersigned, commissioners of the revolutionary army on the island of Panay, acknowledge to have received from Señor ___ ___ , presidente of Jaro, Panay, the sum of 10,000 pesos, which sum, with others of like amount, has been raised by the church at Jaro for the use of the revolutionary army."

This was signed, if I recall correctly, by two commissioners. The original of this paper can be found in the records of the Department of the Visayas. The presidente mentioned in that paper was then presidente of Jaro, and as such was an American official. (Captain Brownell's statement, pp. 6, 7.)

Captain Brownell then undertook to obtain from the prisoner some information as to the whereabouts of Col. Quintin Salas, the chief insurgent leader in eastern Panay, promising to shield him should he tell the truth.

Father Augustine, at this time, was in a dejected mood, despondent, thoroughly discouraged. He told me that he had better be dead, and wished he might die. He had nothing further to live for, and expected if the American Government did not hang him the insurgent forces would, and that he realized he had been a traitor to both sides, and a traitor to his church, and upon exposure of his traitorous conduct while acting at the head of the church in the island he would certainly be deposed and disgraced in the church, and he repeatedly called on the Virgin Mary to take his life. I gave him until a certain hour to consider whether he would disclose this hiding place or not, and explained to him how I knew he was in possession of this information. At the expiration of this time he declined to disclose Salas' whereabouts, and again, more emphatically, said he had better be dead than living anyway, and hoped he would die before morning. (Captain Brownell's statement, p.7.)

The prisoner having persisted in his refusal to disclose the information of which he was believed to be possessed, the water cure was again administered. During such administration the prisoner died. Attempts were made to resuscitate him, but without avail, as apoplexy, or heart failure, not asphyxiation, was the cause of his death. Captain Brownell, elsewhere in his statement, speaks of the prisoner, after the first administration of the water cure, as being "in a very excited and desperate mental condition;" he also describes him as "a man of low vitality, large and fat," and this description of his personal appearance and physical condition is corroborated by the testimony of the other witnesses. The circumstances attending the administration of the water cure are fully set forth in Captain Brownell's statement, which is corroborated by Albert S. Fox, who says:

I think Captain Brownell went about this in as easy a manner as possible, and took men that would handle the man as easy as possible. I think the captain did not want to hurt any man whatever, nor do anything only just where he knew he was going to get some information that he could not get in any other way. (Appendix H, p. 12.)

Alonzo F. Woodside, the former first sergeant of Company D, corroborates this in his testimony (Appendix H p. 39), and says that the administration of the water cure was intrusted to "the best men in the company," and that the men selected for that work" were both humane and intelligent."

The prisoner's remains were buried by a detail of enlisted men, under the direction of the company commander, near the residence of the parish priest, and in the immediate vicinity of the church and the guardhouse. (Appendix H, Branch, p. 44; Cross, p. 29.)

It appears from the testimony of the witnesses that no evidence or admissions which were susceptible of judicial use were obtained from

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the prisoner, save such as were contained in the papers concealed in his clothing, and Captain Brownell could have possessed himself of these without difficulty had he caused the clothing and belongings of his prisoner to be searched.

The incident was reported to the department commander, by Captain Brownell in person, a few days after its occurrence. Of the circumstances attending the report General Hughes gives the following account:

Shortly after this discovery the commanding officer of Banate reported the death of Padre de la Pina, and came to department headquarters and stated to me in person that it had occurred to him that the padre had the check concealed in his soutane, and that he demanded his soutane from him and found the check, and that the excitement or disturbance caused by so doing had apparently caused his death.

The written report was returned to the medical officer of the station for report as to the cause of death, and while I can not state now from memory the wording of his report, yet he stated that heart disease was the cause of death. (General Hughes' report, April 30, Appendix G, p. 3.)

It thus appears that information respecting the administration of the "water cure" was scrupulously withheld from Captain Brownell's military superiors, the incident being reported in terms calculated to convey the impression that the death of the victim was an accidental and unavoidable circumstance, and that no act of his had contributed to bring it about.

It appears from General Hughes' report of October 25, 1902 (Appendix G), that the matter was first brought to his attention in the following manner:

While in Samar about the last of July or early in August a letter came to me from an ex-soldier of the Twenty-sixth Volunteers, saying that a Spaniard from Boston had been in Burlington, Vt., inquiring about the death of Father de la Pena, and stating that he knew all about it.

I replied, saying in substance that I had supposed I knew all about the death of Father de la Pena, but his letter had raised a doubt in my mind, and if he would give me some data to go on I would have an investigation of the matter.

No reply was ever received to that letter, and as all the troops who were on the island of Panay at the time of the occurrence had returned to the United States, it was impracticable to do anything in the way of further investigation from where I then was.

I do not have this soldier's letter here, and no copy of my letter to him was retained, as at the time it was written I was confined to my room in Calbayoc and wrote the letter myself. I regret to say that I am now totally unable to recall the soldier's name, nor do I believe that I could recognize it if it was suggested to me.

General Hughes's attention was next drawn to the incident by the appearance of an article which was published in the Washington Post on April 24, 1902. Immediately upon his attention being drawn to it, at his headquarters in San Francisco, that officer prepared a report (Appendix G), setting forth such facts in the case as were within his knowledge. This report was forwarded to the Adjutant-General of the Army on April 30; it was submitted to the Secretary of War on May 10 following, and was forwarded by him on the same day to the Hon. Henry Cabot Lodge, the chairman of the Senate committee of investigation, with the following letter of transmittal:

WAR DEPARTMENT,
Washington, May 10, 1902.

DEAR SENATOR LODGE: I hand you herewith some statements by General Hughes regarding the death of Father Augustine.

Very sincerely, yours,

ELIHU ROOT,
Secretary of War.

Hon. H. CABOT LODGE,
United States Senate.

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The testimony taken by Colonel Hunter shows that the water cure was administered by the order or direction of Captain Brownell in a number of other cases. Albert S. Fox testifies that it was administered to the presidente of Astancia [Estancia] "to find where he had some men who were fighting against us," and that the victim "was let loose after we got the information and the arms." (Appendix H, pp. 10, 11.) John Bresnehan testifies that it was administered "to a native of the town of Antileo [Anilao] in the fall of 1900." In this case the torture was inflicted by Robinson and Campbell by order of Captain Brownell (ibid.,. 16); in this Bresnehan is corroborated by Privates Snow and Cross (ibid., pp. 23, 31). Private Snow gives the following account of its administration to the prisoner at Antileo [Anilao]:

I seen it once given in Antileo [Anilao]. While we were in the town there we went out and got some prisoner, and Captain Brownell tried to get some information out of him and he would not give it. There were three or four men got him and put him down and held him down; took a stick and pried his mouth open. Then we went out and got a bucket of water and kept pouring it into his mouth, but he would not tell. Then they let him up. We then held him down again, poured more in him, and the Captain says, "I will fix him." He takes out a rifle-a six-shooter-and he says to one of the lads-to Moran of the same company-"When I fire this pistol you hit him on the head-not very hard-with a stone"-a little, small stone that just cut his head, and the nigger when he heard the pistol shot thought he was shot, and he told him that if they let him up he would show them some rifles. Corporal Banye and three or four more started out with him, and they got out I don't know how far from town when the nigger said he didn't know where they were. Then he came back in town, and we stayed around there for a while. Then we had to go back to Banate. (Appendix H, pp. 31, 32.)

Cross testified to another case having occurred at the "Demangas [Dumangas] Swamps." (Ibid., p. 24.) The testimony of Cross is fully corroborated by that of Sergeant Woodside, who recalls the victim as a lieutenant in a company of insurgents.

Captain Brownell, in his statement (Appendix H, pp. 9, 10), expressly admits its administration upon several occasions.

The water cure was administered by my order several times to different natives, and through this agency I was enabled to obtain possession of many arms and very valuable information without firing a shot or shedding blood. When my regiment first reached the island it was customary and necessary, in order to accomplish anything on the offensive, to make long night marches, rounding up and capturing towns in the darkness, not only exposing our men to hardships and disease, but to gunshot wounds, as well as endangering the lives of noncombatant natives by the fire from our men. In these night attacks it was always possible to have women and children killed, and frequently the insurgent soldiers for whom we were seeking would escape, and usually few arms could be taken in this manner. From service and observation I became fully convinced that the lives of both our troops and of the natives could be saved and munitions of war and valuable information obtained by the discreet and humane use of the water cure. I do not and never have believed it cruel or barbarous in any manner, and whenever it became necessary in my judgment to administer it the men chosen for that duty were chosen with a view to having only intelligent, careful, and humane men perform the operation. There was no secrecy about it; every officer and every man, both in my regiment and of every other regiment with which I served, knew when it was given, and I was never criticised by any officer while in the service for administering it.

The reports of Col. Edmund Rice, Nineteenth Infantry, formerly colonel of the Twenty-sixth Volunteer Infantry, and 20 officers of the Army who held commissions in that regiment, and who state that no cases of administration of the water cure came within their observation during their service with the Twenty-sixth Volunteer Infantry in the island of Panay during the years 1899-1901, would seem to indicate that the practice was casual and local rather than general.

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It thus appears that Captain Brownell, having been charged with the custody of an important prisoner of war, did, of his own motion and without the knowledge or sanction of his military superiors, administer a form of torture known as the "water cure" to a prisoner intrusted to him for safe-keeping, and that as a result of such administration the prisoner died; that he obtained incriminating evidence tending to show that the deceased had taken an important part in the insurrectionary movement against the authority of the United States in the island of Panay is conceded; but that evidence could have been obtained by a simple search of the person and garments of the deceased, and the administration of torture added nothing to the amount or importance of the evidence obtained.

The rule of international law which places limitations upon the kind and amount of force which may be used in the prosecution of military operations is set forth in paragraph 16 of General Orders, No. 100, Adjutant-General's Office, of 1863, which contains the requirement that-

Military necessity does not admit of cruelty-that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and in general military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.

This view is fully supported by text writers of authority:

Men who take up arms against one another in public war do not, as one of the articles of our instructions for the government of armies states, cease on that account to be human beings, responsible to one another and to God. The laws of war do not recognize in belligerents an unlimited liberity as to the means of injuring the enemy. Belligerents are expected to avoid all needless severity and all perfidious, unjust, or tyrannical acts.

* * * * * * *

Offenders against the laws of war are liable to the punishments prescribed in the criminal law. In all cases of serious importance, reprisals, if necessary, shall not exceed the violation of the laws committed by the enemy. They must be expressly authorized by the commander in chief, and conform to the rules of humanity and morality. * * * (International Law, Snow, sec. 44, p. 87; Walker, sec. 50, p. 139; Halleck, Chap. XVI, sec. 18; Risley, p. 130; II Halleck, pp. 22, 73, 74; Manning, pp. 210, 211; Woolsey, secs. 131-134; Walker, Manual, pp. 139, 140; III Phillimore, pp. 155-157, 162, 163; Lawrence Int. Law, see. 186; I Guelle, pp. 197, 198; IV Calvo, secs. 2134, 2135.)

Having regard to the circumstances attending Captain Brownell's act in extorting information from the native priest at Banate, I find it difficult to escape the conclusion that it was not justified by military necessity; and that there did not exist, at the time of its commission, a condition of emergency so instant, imperious, and overwhelming in its character as to justify Captain Brownell in the specific violation of the requirements of General Orders, No. 100, which has been made the subject of this investigation.

In the case under examination Captain Brownell had no duties to perform in connection with Father Augustine de la Pena save to safely hold him as a prisoner of war. Captain Brownell had no orders to execute, no operations to carry on, which he could not safely undertake with the force under his immediate command, no duty to perform save to maintain order in the vicinity of the town of which his company constituted the garrison.

Having an important individual of the enemy in his power, he yielded to a prurient curiosity and, in an attempt to extort information,

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caused the death of the prisoner upon whose person the torture had been inflicted. For the offense which is shown to have been committed it is my opinion that Captain Brownell should be brought to trial.

A resort to torture in order to obtain either confessions or information from a prisoner of war is, in view of what has been said, a violation of the laws of war and, as such, is triable by military commission. The taking of human life under the circumstances above disclosed constitutes a form of felonious homicide which is triable by military commission, by a general court-martial, and in certain cases by a civil court having criminal jurisdiction. The jurisdiction of the tribunals above mentioned will be discussed in the order named.

The military commission is a court having jurisdiction to try offenses against the laws of war committed in time of war in occupied territory of the enemy. Its authority to hear and decide cases is derived, not from statutes, but from the law of nations, and its jurisdiction ceases with the termination of the war, or with the restoration of the civil authority to its normal functions. The question as to whether a state of war existed in the island of Panay in December, 1900, is one of fact, and to be determined by the political departments of the Government. The President's proclamation of July 4, 1902, which declares a state of internal peace to exist in the Philippine Islands, is decisive in that regard. Since that date, therefore, no general officer exercising military command in those islands has been empowered to convene a military commission.

The fifty-eighth article of war provides that:

In time of war, insurrection, or rebellion, larceny, robbery, burglary, arson, mayhem, manslaughter, murder, assault and battery with an intent to kill, wounding, by shooting or stabbing, with an intent to commit murder, rape, or assault and battery with an intent to commit rape, shall be punishable by the sentence of a general court-martial, when committed by persons in the military service of the United States, and the punishment in any such case shall not be less than the punishment provided for the like offense by the laws of the State, Territory, or district in which such offense may have been committed.

It has been seen that the military commission was the proper forum for the trial, in time of war, of offenses against the laws of war. The terms of the fifty-eighth article are so sweeping, however, as to include offenses like that committed by Captain Brownell, but the grant of jurisdiction is, by the express terms of the article, restricted to a time of war. For that reason a prosecution can not be instituted at this time.

The sixty-second article of war confers an extensive though somewhat indefinite jurisdiction upon courts-martial to try "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." Its operation is expressly restricted to "crimes not capital," as to offenses, and, as to persons, to "officers and soldiers"-that is, to individuals who belong to and constitute a part of the military establishment. A question therefore arises as to whether Captain Brownell, being no longer in the military service, is now amenable to military jurisdiction. Upon this point it has been held at this office in a number of cases that-

An officer or soldier (except as otherwise provided in the sixtieth article) ceases to be amenable to the military jurisdiction, for offenses committed while in the military service, after he has been separated therefrom by resignation, dismissal, being dropped for desertion, muster out, discharge, etc., and has thus become a

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civilian. The old English precedent in Sackville's case (which appears indeed to stand alone even in England) has not been followed in this country or recognized in our law. (Par. 1027, Digest of Opinions of the Judge-Advocates-General of the Army, par. 1.)

A discharge of a soldier, when subject to trial and punishment for a military offense, is a formal waiver and abandonment by the United States of jurisdiction over him. Nor does a soldier, after having been dishonorably discharged by sentence, remain liable to the military jurisdiction for desertion or any other military offense committed before discharge, by reason of being still held in military custody as a prisoner in confinement under the same sentence; for he is then held not as a soldier but as a civilian convict. (Ibid., par. 2.)

Had Captain Brownell been appointed into the Regular Army, subsequent to his discharge from the volunteer service, such appointment, would not have operated to revive the lapsed jurisdiction.

Nor can a person, who, by reason of acceptance of resignation, dismissal, discharge, etc., has become wholly detached from the military service, be made liable to trial by court-martial, for offenses committed while in the service, on the ground that such offenses were not discovered till after he had left the Army. (Ibid., par. 3.)

The returning by a dismissed, etc., officer to the service under a new commission does not revive a jurisdiction for offenses committed while he was in the service, which had lapsed upon his being separated from it. (Ibid., par. 4.)

The rules of law above stated are derived from Article I, section 8, paragraph 13, of the Constitution, which vests in Congress the power "to make rules for the government and regulation of the land and naval forces." The rules made in pursuance of the clause above cited are operative upon persons belonging to the military establishment, but have no operation upon those whose connection with the military service has been formally and lawfully severed. It has been attempted, as to a single class of cases (those arising under the sixtieth article of war), to extend the liability to court-martial trial to offenders who have been regularly discharged from the military service, but the requirement of the sixtieth article, inasmuch as it subjects civilians to trial by a military tribunal, has been regarded as of such doubtful constitutional validity that it has been taken advantage of in but a very limited number of cases.

There remains to be discussed the question of Captain Brownell's amenability to a criminal prosecution in the civil courts of the United States, or in those established in the Philippine Islands as an incident of their military occupation.

In so far as felonious homicide is concerned, the jurisdiction of the criminal courts of the United States is restricted, by appropriate legislation, to the offenses of murder and manslaughter committed on the high seas, or in certain portions of the navigable waters of the United States, or upon reservations over which jurisdiction has been ceded to the United States. The situs of the offense in the case under consideration was on land-not on the high seas-and not within ceded territory; nor was the offense committed at a place which had been assigned by law to any judicial district of the United States. I am therefore of opinion that Captain Brownell's case does not fall within the jurisdiction of any of the criminal courts of the United States.

At the time the offense was committed (December, 1900), Eastern Panay, in which the town of Banate is situated, constituted a territorial subdivision of the judicial system then in force in the Philippine Islands, with the sanction of the United States Government; and the court of first instance for the district within which was included the town of Banate had jurisdiction of the offenses of murder and manslaughter, when committed by a person not in the military service of

COURTS-MARTIAL IN THE PHILIPPINE ISLANDS. 89

the United States. It will presently appear that either of the offenses above named, if committed in time of war by a person belonging to the military establishment is exclusively triable by a general court-martial under the authority conferred by the fifty-eighth article of war. The island of Panay, however, was at that date in the military occupation of the United States; such occupation being made necessary by reason of the fact that there was armed resistance to the operation of the laws throughout the island; such resistance amounting to and constituting an insurrection against the sovereign authority of the United States, so formidable in character as to make it necessary for the Government to employ its military forces with a view to the suppression of the insurrectionary movement.

It was held by the Supreme Court, in the leading case of Coleman v. Tennessee (97 U. S., 515-518), that:

In denying to the military tribunals exclusive jurisdiction, under the section in question [see sec. 30, act of March 3, 1863; 12 Stat. L. 736, fifty-eighth article of war] over the offenses mentioned, when committed by persons in the military service of the United States and subject to the articles of war, we have reference to them when they were held in States occupying, as members of the Union, their normal and constitutional relations to the Federal Government, in which the supremacy of that Government was recognized, and the civil courts were open and in the undisturbed exercise of their jurisdiction. When the armies of the United States were in the territory of insurgent States, banded together in hostility to the National Government and making war against it, in other words, when the armies of the United States were in the enemy's country, the military tribunals mentioned had, under the laws of war, and the authority conferred by the section named, exclusive jurisdiction to try and punish offences of every grade committed by persons in the military service. Officers and soldiers of the armies of the Union were not subject during the war to the laws of the enemy, or amendable to his tribunals for offences committed by them. They were answerable only to their own Government, and only by its laws, as enforced by its armies, could they be punished.

It is well settled that a foreign army permitted to march through a friendly country, or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place. The sovereign is understood, said this court in the celebrated case of The Exchange (7 Cranch, 139), to cede a portion of his territorial jurisdiction when he allows the troops of a foreign prince to pass through his dominions: "In such case, without any express declaration waiving jurisdiction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faith. By exercising it the purpose for which the free passage was granted would be defeated, and a portion of the military force of a foreign independent nation would be diverted from those national objects and duties to which it was applicable, and would be withdrawn from the control of the sovereign whose power and whose safety might greatly depend on retaining the exclusive command and disposition of this force. The grant of a free passage, therefore, implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline and to inflict those punishments which the government of his army may require."

If an army marching through a friendly country would thus be exempt from its civil and criminal jurisdiction, a fortiori, would an army invading an enemy's country be exempt? The fact that war is waged between two countries negatives the possibility of jurisdiction being exercised by the tribunals of the one country over persons engaged in the military service of the other for, offenses committed while in such service. Aside from this want of jurisdiction there would be something incongruous and absurd in permitting an officer or soldier of an invading army to be tried by his enemy whose country he had invaded.

The fact that when the offense was committed, for which the defendant was indicted, the State of Tennessee was in the military occupation of the United States, with a military governor at its head, appointed by the President, can not alter this conclusion. Tennessee was one of the insurgent States, forming the organization known as the Confederate States, against which the war was waged. Her territory was enemy's country, and its character in this respect was not changed until long afterwards.

The doctrine of international law on the effect of military occupation of enemy's territory upon its former laws is well established. Though the late war was not

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between independent nations, but between different portions of the same nation, yet having taken the proportions of a territorial war, the insurgents having become formidable enough to be recognized as belligerents, the same doctrine must be held to apply. The right to govern the territory of the enemy during its military occupation is one of the incidents of war, being a consequence of its acquisition, and the character and form of the government to be established depends entirely upon the laws of the conquering State or the orders of its military commander. By such occupation the political relations between the people of the hostile country and their former government or sovereign are for the time severed, but the municipal laws-that is, the laws which regulate private rights, enforce contracts, punish crime, and regulate the transfer of property-remain in full force, so far as they affect the inhabitants of the country among themselves, unless suspended or superseded by the conqueror. And the tribunals by which the laws are enforced continue as before, unless thus changed. In other words, the municipal laws of the State and their administration remain in full force, so far as the inhabitants of the country are concerned, unless changed by the occupying belligerent. (Halleck, Int. Law, c. 33.)

This doctrine does not affect, in any respect, the exclusive character of the jurisdiction of the military tribunals over the officers and soldiers of the Army of the United States in Tennessee during the war; for, as already said, they were not subject to the laws nor amenable to the tribunals of the hostile country. The laws of the State for the punishment of crime were continued in force only for the protection and benefit of its own people. As respects them, the same acts which constituted offenses before the military occupation constituted offenses afterwards; and the same tribunals, unless superseded by order of the military commanders, continued to exercise their ordinary jurisdiction.

It is proper to observe that the rule of international law, which was recognized by the Supreme Court and applied in the case of Coleman v. Tennessee, above cited, was announced in appropriate military orders by the general commanding the forces charged with the military occupation of the Philippine Islands, of which the foregoing is a copy.

GENERAL ORDERS,
No. 8.

HEADQUARTERS DEPARTMENT OF THE PACIFIC,
AND EIGHTH ARMY CORPS,
Manila, P. I., August 22, 1898.

I. For the maintenance of law and order in those portions of the Philippines occupied or controlled by the Army of the United States and to provide means to promptly punish infractions of the same, military commissions and provost courts, composed and constituted in accordance with the laws of war, will be appointed from time to time as occasion may require.

II. The local courts, continued in force for certain purposes in proclamation from these headquarters dated August 14, 1898, shall not exercise jurisdiction over any crime or offense committed by any person belonging to the Army of the United States, or any retainer of the Army, or person serving with it, or any person furnishing or transporting supplies for the Army, nor over any crime or offense committed on either of the same by any inhabitant or temporary resident of said territory. In such cases, except when courts-martial have jurisdiction, jurisdiction to try and punish is vested in military commissions and the provost court, as hereinafter set forth.

* * * * * * *

By command of Major-General Merritt:

J. B. BABCOCK, Adjutant-General.

The exclusive jurisdiction thus created in favor of military tribunals terminated on July 4, 1902, in pursuance of the President's proclamation of that date, terminating such occupation and announcing the restoration of the civil authorities to their normal functions in connection with the maintenance of public order in the Philippine Islands.

It would thus appear that the court of first instance for the proper district in the island of Panay would have jurisdiction of the offense of murder or manslaughter, when committed by a person not in the military service of the United States; but that such court of first instance

COURTS-MARTIAL IN THE PHILIPPINE ISLANDS. 91

would not have jurisdiction to try either of the offenses above named when committed by an officer or enlisted man of the Army in time of war, and in territory in the military occupation of the United States.

If it be conceded, for the purposes of argument, that such jurisdiction over persons in the military establishment did belong to the court of first instance in the island of Panay, a question would arise as to whether, the offender having returned to the United States, the offense is extraditable and, if it be, whether the law provides a method of securing his return to the place in which the offense was committed. Section 5278 of the Revised Statutes, which regulates the extradition of fugitives from justice, is restricted in its operation to a case in which—

the executive authority of any State or Territory demands any person as a fugitive from justice of the executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory charging the person named with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the executive authority of the Stale or Territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear.

It will be observed that extradition can be effected in conformity to section 5278, Revised Statutes, between the State or Territory from which the offender has fled and the State or Territory in which he has taken refuge. The term "territory," as used in the section above cited, has obvious relation to a political "territory" within the continental limits of the States and Territories comprising the Union, and it is not believed that the Philippine Islands constitute such a "territory" as is contemplated in the section under consideration.

The act of June 6, 1900 (31 Stat. L., 656), authorizes the extradition of a person who has committed one of the offenses named therein in "any foreign country or territory, or any part thereof," which "is occupied by or under the control of the United States." But the Philippine Islands are not "a foreign country or territory" which is held by the United States in military occupation, and the arrest of an offender against the laws in force in the Philippine Islands who has taken refuge in the United States, and his surrender to the insular authorities, would not be authorized by that enactment.

It would thus appear that Captain Brownell, being no longer in the military service, is not amenable to the jurisdiction of a general court-martial, as a state of war no longer exists in the Philippine Islands he is not now subject to trial by a military commission; for the same reason, and because of the exclusive jurisdiction over the offenses named in the fifty-eighth article of war, which is vested in general courts-martial, he is not triable by the proper court of first instance in the island of Panay, which would have jurisdiction of the case had the offense been committed by a person not belonging to the military establishment.

In view of the importance of the case and of the circumstances under which the offense was committed, it is not believed to be proper that the question of Captain Brownell's criminal accountability should be finally determined by the War Department, and it is therefore

92 COURTS-MARTIAL IN THE PHILIPPINE ISLANDS.

recommended that this report be referred to the Attorney-General for an opinion as to whether, under the circumstances therein stated, Captain Brownell can now be brought to trial.

Very respectfully,

GEO. B. DAVIS,
Judge-Advocate-General.