^* Nos.—Original and Nos. 1, 2, 3, 4, 5, 6 and 7—July Special Term, 1942.

¹ From June 12 to June 18,1942, Amagansett Beach, New York, and Ponte Yedra Beach, Florida, were within the area designated as the Eastern Defense Command of the United States Army, and subject to the provisions of a proclamation dated May 16, 1942, issued by Lieutenant General Hugh A. Drum, United States Anjny, Commanding General, Eastern Defense Command (see 7 Federal Register 3830). On the night of June 12–13, 1942, the waters around Amagansett Beach, Long Island, were within the area comprising the Eastern Sea Frontier, pursuant to the ordere issued by Admiral Ernest J. King, Commander in Chief of the United States Fleet and Chief of Naval Operations. On the night of June 16–17, 1942, the waters around Ponte Vedra Beach, Florida, were within the area comprising the Gulf Sea Frontier, pursuant to similar orders.

On the night of June 12–13, 1942, members of the United States Coast Guard, unarmed, maintained a beach patrol along the beaches surrounding Amagansett, Long Island, under written orders mentioning the purpose of detecting landings. On the night of June 17–18, 1942, the United States Army maintained a patrol of the beaches surrounding and including Ponte Vedra Beach, Florida, under written orders mentioning the purpose of detecting the landing of enemy agents from submarines.

² 7 Federal Register 5103.

³ 7 Federal Register 5101.

⁴ As appears from the stipulation, a defense offered before the military commission was that petitioners had had no intention to obey the orders given them by the officer of the German High Command.

⁵ Talbot v. Janson, 3 Dall. 133, 153, 159–61; Talbot v. Seeman, 1 Cranch 1, 40–41; Maley v. Shattuck, 3 Cranch 458, 488; Fitzsimmons v. Newport Ins. Co., 4 Cranch 185, 199; The Rapid, 8 Cranch 155, 159–64; The St. Lawrence, 9 Cranch 120, 122; Thirty Hogsheads of Sugar v. Boyle, 9 Cranch 191, 197–98; The Anne, 3 Wheat. 435, 447–48; United States v. Reading, 18 How. 1, 10; Prize Cases, 2 Black 635, 666–67, 687; The Venice, 2 Wall. 258, 274; The William Bagaley, 5 Wall. 377; Miller v. United States, 11 Wall. 268; Colemanv. Tennessee, 97 U. S. 509, 517; United States v. Pacific R. R., 120 U. S. 227, 233; Juragua Iron Co. v. United States, 212 U. S. 297.

⁶ Compare 28 U. S. C. § 41 (17), conferring on the federal courts jurisdiction over suite brought by an alien for a tort “in violation of the laws of nations”; 28 U. S. C. § 341, conferring upon the Supreme Court such jurisdiction of suits against ambassadors as a court of law caa have “consistently with the law of nations”; 28 U. S. C. § 462, regulating the issuance of habeas corpus where the prisoner claims some right, privilege or exemption under the order of a foreign state, “the validity and effect whereof depend upon the law of nations”; 15 U. S. C. §§606 (b) and 713 (b), authorizing certain loans to foreign governments, provided that “no such loans shall be made in violation of international law as interpreted by the Department of State.”

⁷ 7 Hague Convention No. IV of Oct. 18, 1907, 36 Stat. 2295, Article I of the Annex to which defines the persons to whom belligerent rights and duties attach, was signed by 44 nations. See also Great Britain, War Office, Manual of Military Law (1929) Ch. xiv, §§ 17–19; German General Staff, Kriegsbrauch im Landkriege (1902) Ch. 1; 7 Moore, Digest of International Law, § 1109; 2 Hyde, International Law (1922) §§ 653–54; 2 Oppenheim, International Law (6th ed. 1940) § 107; Bluntschli, Droit International (5th ed. tr. Lardy) §§ 531–32; 4 Calvo, Le Droit International Theorique et Pratique (5th ed. 1896) §§ 2034–35.

⁸ Great Britain, War Office, Manual of Military Law, Ch. xiv, §§ 445–451; Regolamento di Servizio in Guerra, § 133, 3 Leggi e Decreti del Regno d’Italia (1896) 3184; 7 Moore, Digest of International Law, § 1109; 2 Hyde, International Law, §§ 654, 652; 2 Halleck, International Law (4th ed. 1908) § 4; 2 Oppenheim, International Law, § 254; Hall, International Law, §§ 127, 135; Baty & Morgan, War, Its Conduct and Legal Results (1915) 172; Bluntschli, Droit International, §§ 570 bis.

⁹ On Sept. 29, 1780, Major John André, Adjutant-General to the British Army, was tried by a “Board of General Officers” appointed by General Washington, on a charge that he had come within the lines for an interview with General Benedict Arnold and had been captured while in disguise and travelling under an assumed name. The Board found that the facts charged were true, and that when captured Major André had in his possession papers containing intelligence for the enemy, and reported their conclusion that “ Major André… ought to be considered as a Spy from the enemy, and that agreeably to the law and usage of nations… he ought to suffer death.” Major André was hanged on Oct. 2, 1780. Proceedings of a Board of General Officers Respecting Major John André, Sept. 29,1780, printed at Philadelphia in 1780.

¹⁰ During the Mexican War military commissions were created in a large number of instances for the trial of various offenses. See General Orders cited in 2 Winthrop, Military Law (2d ed. 1896) p. 1298, note 1.

¹¹ During the Civil War the military commission was extensively used for the trial of offenses against the law of war. Among the more significant cases for present purposes are the following:

On May 22, 1865, T. E. Hogg and others were tried by a military commission, for “violations of the laws and usages of civilized war,” the specifications charging that the accused “being commissioned, enrolled, enlisted or engaged” by the Confederate Government, came on board a United States merchant steamer in the port of Panama “in the guise of peaceful passengers” with the purpose of capturing the vessel and converting her into a Confederate cruiser. The commission found the accused guilty and sentenced them to be hanged. The reviewing authority affirmed the judgments, writing an extensive opinion on the question whether violations of the law of war were alleged, but modified the sentences to imprisonment for life and for various periods of years. Dept. of the Pacific, G. O. No. 52, June 27, 1865.

On Jan. 17, 1865, John Y. Beali was tried by a military commission for “violation of the laws of war.” The opinion by the reviewing authority reveals that Beali, holding a com· mission in the Confederate Navy, came on board a merchant vessel at a Canadian port in civilian dress and, with associates, took possession of the vessel in Lake Erie; that, also in disguise, he unsuccessfully attempted to derail a train in New York State, and to obtain military information. His conviction by the commission was affirmed on the ground that he was both a spy and a “guerrilla,” and he was sentenced to be hanged. Dept. of the Elast, G. O. No. 14, Feb. 14,1865.

On Jan. 17, 1865, Robert C. Kennedy, a Captain of the Confederate Army, who was shown to have attempted, while in disguise, to set fire to the City of New York, and to have been seen in disguise in various parts of New York State, was convicted on charges of acting as a, spy and violation of the law of war “in undertaking to carry on irregular and unlawful warfare.” He was sentenced to be hanged, and the sentence was confirmed by the reviewing authority. Dept. of the East, G. O. No. 24, March 20, 1865.

On Sept. 19, 1865, William Murphy, “a rebel emissary in the employ of and colleagued with rebel enemies” was convicted by a military commission of “violation of the laws and customs of war” for coming within the lines and burning a United States steamboat and other property. G. C. M. O. No. 107, April 18, 1866.

Soldiers and officers “now or late of the Confederate Army,” were tried and convicted by military commission for “being secretly within the lines of the United States forces,” James Hamilton, Dept. of the Ohio, G. O. No. 153, Sept. 18, 1863; for “recruiting men within the lines,” Daniel Davis, G. O. No. 397, Dec. 18, 1863, and William F. Corbin and T. G. Mc-Graw, G. O. No. 114, May 4,1863; and for “lurking about the posts, quarters, fortifications and encampments of the armies of the United States,” although not “as a spy,” Augustus A. Williams, Middle Dept., G. O. No. 34, May 5,1864. For other cases of violations of the law of war punished by military commissions during the Civil War see 2 Winthrop, Military Laws and Precedents (2d ed. 1896) 1310–11.

See also Paragraph 100: “A messenger or agent who attempts to steal through the territory occupied by the enemy to further in any manner the interests of the enemy, if captured, is not entitled to the privileges of the prisoner of war, and may be dealt with according to the circumstances of the case.”

Compare Paragraph 101.

¹² Great Britain, War Office, Manual of Military Law (1929) § 445, lists a large number of acts which, when committed within enemy lines by persons in civilian dress associated with or acting under the direction of enemy armed forces, are “war crimes.” The list includes: “damage to railways, war material, telegraph, or other means of communication, in the interest of the enemy….” Section 449 states that all “war crimes” are punishable by death.

Authorities on international law have regarded as war criminals such persons who pass through the lines for the purpose of (a) destroying bridges, war materials, communication facilities, etc.; 2 Oppenheim, International Law (6th ed. 1940) § 255; Spaight, Air Power and War Rights (1924) 283; Spaight, War Rights on Land (1911) 110; Phillipson, International Law and the Great War (1915) 208; Liszt, Das Völkerrecht (12 ed. 1925), § 58 (B) 4; (b) carrying messages secretly: Hall, International Law (8th ed. 1924) § 188; Spaight, War Rights on Land 215; 3 Merignhac, Droit Public International (1912) 296-97; Bluntschli, Droit Internar tional Codifié (5th ed. tr. Lardy) § 639; 4 Calvo, Le Droit International Theorique et Pratique (5th ed. 1S96) § 2119; (c) for any hostile purpose : 2 Winthrop, Military Law and Precedents, (2nd ed. 1896) 1224. Cf. Lieber, Guerrilla Parties (1862), 2 Miscellaneous Writings (1881) 288.

These authorities are unanimous in stating that a soldier in uniform who commits the acts mentioned would be entitled to treatment as a prisoner of war; it is the absence of uniform that renders the offender liable to trial for violation of the laws of war.

¹³ See Morgan, Court-Martial Jurisdiction over Non-Military Persons under the Articles of War, 4 Minnesota L. Rev. 79, 107–09.

¹⁴ In a number of cases during the Revolutionary War enemy spies were tried and convicted by military tribunals: (1) Major John André, Sept. 29, 1780, see note 9 supra. (2) Thomas Shanks was convicted by a “Board of General Officers” at Valley Forge on June 3, 1778, for “being a Spy in the Service of the Enemy” and sentenced to be hanged. 12 Writings of Washington (Bicentennial Comm’n ed.) 14. (3) Matthias Colbhart was convicted of “holding a Correspondence with the Enemy” and “living as a Spy among the Continental Troops” by a general court martial convened by order of Major General Putnam on Jan. 13, 1778; General Washington, the Commander in Chief, ordered the sentence of death to be executed, 12 Id. 449–50. (4) John Clawson, Ludwick Lasick, and William Hutchinson were convicted of “lurking as spies in the Vicinity of the Army of the United States” by a general court martial held on June 18, 1780. The death sentence was confirmed by the Commander in Chief. 19 Id. 23. (5) David Farnsworth and John Blair were convicted of “being found about the Encampment of the United States as Spies” by a division general court martial held on Oct. 8, 1778 by order of Major General Gates. The death sentence was confirmed by the Commander in Chief. 13 Id. 139—40. (6) Joseph Bettys was convicted of being “a Spy for General Burgoyne” by coming secretly within the American lines, by a general court martial held on April 6, 1778 by order of Major General McDougall. The death sentence was confirmed by the Commander in Chief. 15 Id. 364. (7) Stephen Smith was convicted of “being a Spy” by a general court martial held on Jan. 6, 1778. The death sentence was confirmed by Major General McDougall. Ibid. (8) Nathaniel Aherly and Reuben Weeks, Loyalist soldiers, were sentenced to be hanged as spies. Proceedings of a General Court Martial Convened at West Point According to a General Order of Major General Arnold, Aug. 20–21, 1780 (National Archives, War Dept., Revolutionary War Records, MS No: 31521). (9) Jonathan Loveberry, a Loyalist soldier, was sentenced to be hanged as a spy, Proceedings of a General Court Martial Convened at the Request of Major General Arnold at the Township of Bedford, Aug. 30–31,1780 (Id. MS No. 31523); he later escaped, 20 Writings of Washington 253n. (10) Daniel Taylor, a lieutenant in the British Army, was convicted as a spy by a general court martial convened on Oct. 14, 1777, by order of Brigadier General George Clinton, and was hanged. 2 Public Papers of George Clinton (1900) 443. (11) James Molesworth was convicted as a spy and sentenced to death by a general court martial, held at Philadelphia, March 29, 1777; Congress confirmed the order of Major General Gates for the execution of the sentence. 7 Journals of the Continental Congress 210. See also cases of “M. A.” and “D. C.,” G. O. Headquarters of General Sullivan, Providence, R. I., July 24, 1778, reprinted in Niles, Principles and Acts of the Revolution (1822) 369; of Lieutenant Palmer, 9 Writings of Washington, 56n; of Daniel Strang, 6 Id. 497n; of Edward Hicks, 14 Id. 357; of John Mason and James Ogden, executed as spies near Trenton, N. J., on Jan. 10, 1781, mentioned in Hatch, Administration of the American Revolutionary Army (1904) 135, and Van Doren, Secret History of the American Revolution (1941) 410.

During the War of 1812, William Baker was convicted as a spy and sentenced to be hanged by a general court martial presided over by Brigadier General Thomas A. Smith at Plattsburg, N. Y., on March 25, 1814. (National Archives, War Dept., Judge Advocate General’8 Office, Records of Courts Martial, MS No. O–13). William Utley, tried as a spy by a court martial held at Plattsburg, March 3–5, 1814, was acquitted (Id., MS No. X–161). Elijah Clark was convicted as a spy, and sentenced to be hanged, by a general court martial held at Buffalo, N. Y., Aug. 5–8, 1812; he was ordered released by President Madison on the ground that he was an American citizen. Military Monitor, Vol. I, No. 23, Feb. 1, 1813, pp. 121–122; Maltby, Treatise on Courts Martial and Military Law (1813), 35–36.

In 1862 Congress amended the spy statute to include “all persons” instead of only aliens. 12 Stat. 339, 340; see also 12 Stat. 731, 737. For the legislative history, see Morgan, Court-Martial Jurisdiction over Non-Military Persons under the Articles of War, 4 Minnesota L. Rev. 79, 109–11. During the Civil War a number of Confederate officers and soldiers found within the Union lines in disguise were tried and convicted by military commission for being spies. Charles H. Clifford, G. O. No. 135, May 18, 1863; William S. Waller, G. O. No. 269, Aug. 4, 1863; Alfred Yates and George W. Caeey, G. O. No. 382, Nov. 28, 1863; James R. Holton and James Taylor, G. C. M. O. No. 93, May 13, 1864; James McGregory, G. C. M. O. No. 152, June 4, 1864; E. S. Dodd, Dept. of Ohio, G. O. No. 3, Jan. 5, 1864. For other cases of spies tried by military commission see 2 Winthrop, Military Law and Precedents, 1193 et seq.