KNOX TO ROOT, JANUARY 26, 1903
Department of Justice,
Washington, D. C, January 26, 1903.
The Secretary of War, Washington, D. C.
Sir: I have your letter of November 21, reading as follows:
"I have the honor to transmit herewith the report of an investigation made by the Judge-Advocate General of the Army, from which it appears that Father Augustine de la Pena, the parish priest at Dumangas, island of Panay, was subjected to torture by an officer of the volunteer forces, with a view to extort information in respect to the operations of the insurrectionary forces in that island. As a consequence of the administration of torture the victim died.
"An expression of opinion is requested as to whether Capt. Cornelius M. Brownell, by whose order and under whose personal supervision the torture was administered, is now amenable to a criminal prosecution therefor. And I remain,
"Very respectfully,
"Elihu Root, Secretary of War."
It appears from the inclosures of your letter that the torture and death referred to occurred in the month of December, 1900, at Banate, Iloilo Province; that Brownell was then captain of Company D, Twenty-sixth Infantry, U. S. Volunteers; that he is no longer in the military service, and is now in the United States.
The alleged offense would, under our system of laws, be either murder or manslaughter, and under Spanish law assassination or homicide, according to the motives and circumstances.
The fact that it might be regarded as a violation of the laws of war is not sufficient to prevent it from being murder or manslaughter. (Minnesota v. Gut, 13 Minn., 341; Gut v. State, 9 Wall., 35.)
An offense may be one against the State, and at the same time one against the United States. In that instance, two sovereignties are offended by it, (Coleman v. Tennessee, 97 U. S., 518.)
It is also true that an offense may be one against the quasi-sovereigntv of a Territory and one against the United States; also, that a crime may be an offense under the rules or articles which govern the Army in peace and war, at home and abroad, and a different offense against the United States, a State or Territory. (6 Opins. A. G., 416; Winthrop's Mil. Law, 2d ed., pp. 1076, 124, 396.)
It seems to be clear from the authorities that no military court can now try Captain Brownell; (1) because a court-martial has no jurisdiction since he has left the service (5 Opins. A. G., 58), and (2) because a military commission has no jurisdiction now that peace has been proclaimed in the Philippines.
Upon the ratification of the treaty with Spain on April 11, 1899, the legal title to the Philippines was vested in the United States (183 U. S., 176). But the cession was completed under very extraordinary circumstances. Instead of peace there existed in full operation a powerful insurrection against the new sovereignty, and the character or extent of this insurrection was not radically changed until after the commission of the act which constituted this alleged offense.
In Coleman v. Tennessee (97 U. S., 509), Coleman was indicted in the criminal court for the district of Knox County, Tennessee, in October, 1874, for a murder alleged to have been committed in that county on the 7th of March, 1865. At the time the offense was alleged to have been committed he was a regular soldier in the military service of the United States, and East Tennessee, where the offense was alleged to have been committed, was then occupied by the armies of the United States as a military district. It was held that, when the armies of the United States were in the enemy's country, the established military tribunals had, under the laws of war and statutory authority, exclusive jurisdiction to try and punish offenses of every grade committed by persons in the military service.
The court, speaking through Mr. Justice Field, said:
"Officers and soldiers of the armies of the Union were not subject during the war to the laws of the enemy, or amenable to his tribunals for offenses committed by them. They were amenable only to their own Government, and only by its laws, as enforced by its armies, could they be punished. * * *
"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 laws of the State for the punishment of crime were continued in force only for the protection and benefit of its own people."
In Dow v. Johnson (100 U. S., 158), the court said:
"Nor is the position of the invading belligerent affected, or his relation to the local tribunals changed, by his temporary occupation and domination of any portion of the enemy's country. * * * The municipal laws, that is, such as affect private rights of persons and property, and provide for the punishment of crime, are generally allowed to remain in force, and to be administered by the ordinary tribunals, as they were administered before the occupation. They are considered as continuing, unless superseded or suspended by the occupying belligerent. But their continued enforcement is not for the protection or control of the army, or its officers or soldiers. These remain subject to the laws of war, and are responsible for their conduct only to their own government and the tribunals by which those laws are administered. If guilty of wanton cruelty to persons, or of unnecessary spoliation of property, or of other acts not authorized by the laws of war, they may be tried and punished by the military tribunals. They are amenable to no other tribunal except that of public opinion, which, it is hoped, will always brand with infamy all who authorize or sanction acts of cruelty and oppression." (See also State of Tennessee v. Hibdom, 23 Fed. Rep., 795.)
On August 14,1898, a proclamation was issued "To the people of the Philippines" by the general in command at Manila, in which he said:
"The government established among you by the United States is a government of military occupation; and for the present it is ordered that the municipal laws, such as affect private rights of persons and property, regulate local institutions, and provide for the punishment of crime, shall be considered as continuing in force, so far
as compatible with the purposes of military government, and that they be administered through the ordinary tribunals substantially as before the occupation, but by officials appointed by the government of occupation."
The same proclamation declared that a provost-marshal-general should be appointed whose duties would be set forth in detail in future orders, but that in a general way he and his deputies were to be charged with the duty of making arrests and sending offenders before courts-martial, military commissions, provost courts, or native criminal courts, "in accordance with the law and instructions hereafter to be issued."
This was followed on August 22, 1898, by one of the orders of instructions thus contemplated as part of the system inaugurated by the proclamation. That order provided, among other things, that the local courts continued by the proclamation should not exercise jurisdiction over crimes committed by or against any person belonging to or connected with the Army of the United States, but that such crimes should be tried by court-martial, military commission, or provost court.
It is clear that it was not then intended to confer upon local tribunals jurisdiction over offenses committed by officers and soldiers of the Army. Nor can we find such an intent in subsequent orders of the military government issued during the insurrectionary period. To do so would be to find one at variance with the actual practice of trying soldiers for all manner of civil crimes exclusively by courts-martial under articles 58, 62, etc., of the Articles of War.
While it is true that the jurisdiction of military tribunals is not exclusive in time of peace, and in territory where the supremacy of the United States is recognized, and the relations between the local government and the national Government normal, and where also the exercise of jurisdiction of the local civil courts is not disturbed, it is equally true that when the armies of the United States are in hostile territory, and, as in the present case, engaged in actual warfare, the jurisdiction of such tribunals over such offenses is exclusive. And it is evident from the decisions cited that in reference to the present question the country was none the less "enemy's country," and the territory hostile, because it was harassed by insurrection against a sovereignty perfect in law, rather than attacked or defended by a recognized belligerent.
As the alleged act of Captain Brownell was committed while he was an officer in the Army of the United States operating in "enemy's country," it is my opinion that he was amenable only to the laws of war, supremacy of which—to use the language of Justice Field in the Dow case—"for the protection of the officers and soldiers of the army, when in service in the field in the enemy's country, is as essential to the efficiency of the army as the supremacy of the civil law at home, and in time of peace, is essential to the preservation of liberty."
Respectfully,
P. C. Knox, Attorney-General.
Subsequent to the trials which have been summarized above, Maj. Edwin F. Glenn, Fifth Infantry, was brought to trial before a court convened by the commanding general, Division of the Philippines, upon a charge of manslaughter. Major Glenn's trial has been completed and the record has been reviewed by the convening officer, but has not yet reached the Department. For this reason it is impossible to submit a summary of the evidence. As the record has already been acted upon by Maj. Gen. George W. Davis, further action by superior military authority in the way of review would be without authority of law.
Elihu Root, Secretary of War.
