Case Name: IN RE YAMASHITA, 327 U.S. 1 

Part II

MR. JUSTICE MURPHY, DISSENTING. 

THE SIGNIFICANCE OF THE ISSUE FACING THE COURT TODAY CANNOT BE
OVEREMPHASIZED.  AN AMERICAN MILITARY COMMISSION HAS BEEN ESTABLISHED
TO TRY A FALLEN MILITARY COMMANDER OF A CONQUERED NATION FOR AN ALLEGED
WAR CRIME.  THE AUTHORITY FOR SUCH ACTION GROWS OUT OF THE EXERCISE OF
THE POWER CONFERRED UPON CONGRESS BY ARTICLE I, SEC. 8, CL. 10 OF THE
CONSTITUTION TO "DEFINE AND PUNISH ...  OFFENCES AGAINST THE LAW OF
NATIONS  ..."  THE GRAVE ISSUE RAISED BY THIS CASE IS WHETHER A
MILITARY COMMISSION SO ESTABLISHED AND SO AUTHORIZED MAY DISREGARD THE
PROCEDURAL RIGHTS OF AN ACCUSED PERSON AS GUARANTEED BY THE
CONSTITUTION, ESPECIALLY BY THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT. 

THE ANSWER IS PLAIN.  THE FIFTH AMENDMENT GUARANTEE OF DUE PROCESS OF
LAW APPLIES TO "ANY PERSON" WHO IS ACCUSED OF A CRIME BY THE FEDERAL
GOVERNMENT OR ANY OF ITS AGENCIES.  NO EXCEPTION IS MADE AS TO THOSE
WHO ARE ACCUSED OF WAR CRIMES OR AS TO THOSE WHO POSSESS THE STATUS OF
AN ENEMY BELLIGERENT.  INDEED, SUCH AN EXCEPTION WOULD BE CONTRARY TO
THE WHOLE PHILOSOPHY OF HUMAN RIGHTS WHICH MAKES THE CONSTITUTION THE
GREAT LIVING DOCUMENT THAT IT IS.  THE IMMUTABLE RIGHTS OF THE
INDIVIDUAL, INCLUDING THOSE SECURED BY THE DUE PROCESS CLAUSE OF THE
FIFTH AMENDMENT, BELONG NOT ALONE TO THE MEMBERS OF THOSE NATIONS THAT
EXCEL ON THE BATTLEFIELD OR THAT SUBSCRIBE TO THE DEMOCRATIC IDEOLOGY. 
THEY BELONG TO EVERY PERSON IN THE WORLD, VICTOR OR VANQUISHED,
WHATEVER MAY BE HIS RACE, COLOR OR BELIEFS.  THEY RISE ABOVE ANY STATUS
OF BELLIGERENCY OR OUTLAWRY.  THEY SURVIVE ANY POPULAR PASSION OR
FRENZY OF THE MOMENT.  NO COURT OR LEGISLATURE OR EXECUTIVE, NOT EVEN
THE MIGHTIEST ARMY IN THE WORLD, CAN EVER DESTROY THEM.  SUCH IS THE
UNIVERSAL AND INDESTRUCTIBLE NATURE OF THE RIGHTS WHICH THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT RECOGNIZES AND PROTECTS WHEN LIFE OR
LIBERTY IS THREATENED BY VIRTUE OF THE AUTHORITY OF THE UNITED STATES. 

THE EXISTENCE OF THESE RIGHTS, UNFORTUNATELY, IS NOT ALWAYS
RESPECTED.  THEY ARE OFTEN TRAMPLED UNDER BY THOSE WHO ARE MOTIVATED BY
HATRED, AGGRESSION OR FEAR.  BUT IN THIS NATION INDIVIDUAL RIGHTS ARE
RECOGNIZED AND PROTECTED, AT LEAST IN REGARD TO GOVERNMENTAL ACTION. 
THEY CANNOT BE IGNORED BY ANY BRANCH OF THE GOVERNMENT, EVEN THE
MILITARY, EXCEPT UNDER THE MOST EXTREME AND URGENT CIRCUMSTANCES. 

THE FAILURE OF THE MILITARY COMMISSION TO OBEY THE DICTATES OF THE
DUE PROCESS REQUIREMENTS OF THE FIFTH AMENDMENT IS APPARENT IN THIS
CASE.  THE PETITIONER WAS THE COMMANDER OF AN ARMY TOTALLY DESTROYED BY
THE SUPERIOR POWER OF THIS NATION.  WHILE UNDER HEAVY AND DESTRUCTIVE
ATTACK BY OUR FORCES, HIS TROOPS COMMITTED MANY BRUTAL ATROCITIES AND
OTHER HIGH CRIMES.  HOSTILITIES CEASED AND HE VOLUNTARILY SURRENDERED. 
AT THAT POINT HE WAS ENTITLED, AS AN INDIVIDUAL PROTECTED BY THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT, TO BE TREATED FAIRLY AND JUSTLY
ACCORDING TO THE ACCEPTED RULES OF LAW AND PROCEDURE.  HE WAS ALSO
ENTITLED TO A FAIR TRIAL AS TO ANY ALLEGED CRIMES AND TO BE FREE FROM
CHARGES OF LEGALLY UNRECOGNIZED CRIMES THAT WOULD SERVE ONLY TO PERMIT
HIS ACCUSERS TO SATISFY THEIR DESIRES FOR REVENGE. 

A MILITARY COMMISSION WAS APPOINTED TO TRY THE PETITIONER FOR AN
ALLEGED WAR CRIME.  THE TRIAL WAS ORDERED TO BE HELD IN TERRITORY OVER
WHICH THE UNITED STATES HAS COMPLETE SOVEREIGNTY.  NO MILITARY
NECESSITY OR OTHER EMERGENCY DEMANDED THE SUSPENSION OF THE SAFEGUARDS
OF DUE PROCESS.  YET PETITIONER WAS RUSHED TO TRIAL UNDER AN IMPROPER
CHARGE, GIVEN INSUFFICIENT TIME TO PREPARE AN ADEQUATE DEFENSE,
DEPRIVED OF THE BENEFITS OF SOME OF THE MOST ELEMENTARY RULES OF
EVIDENCE AND SUMMARILY SENTENCED TO BE HANGED.  IN ALL THIS NEEDLESS
AND UNSEEMLY HASTE THERE WAS NO SERIOUS ATTEMPT TO CHARGE OR TO PROVE
THAT HE COMMITTED A RECOGNIZED VIOLATION OF THE LAWS OF WAR.  HE WAS
NOT CHARGED WITH PERSONALLY PARTICIPATING IN THE ACTS OF ATROCITY OR
WITH ORDERING OR CONDONING THEIR COMMISSION.  NOT EVEN KNOWLEDGE OF
THESE CRIMES WAS ATTRIBUTED TO HIM.  IT WAS SIMPLY ALLEGED THAT HE
UNLAWFULLY DISREGARDED AND FAILED TO DISCHARGE HIS DUTY AS COMMANDER TO
CONTROL THE OPERATIONS OF THE MEMBERS OF HIS COMMAND, PERMITTING THEM
TO COMMIT THE ACTS OF ATROCITY.  THE RECORDED ANNALS OF WARFARE AND THE
ESTABLISHED PRINCIPLES OF INTERNATIONAL LAW AFFORD NOT THE SLIGHTEST
PRECEDENT FOR SUCH A CHARGE.  THIS INDICTMENT IN EFFECT PERMITTED THE
MILITARY COMMISSION TO MAKE THE CRIME WHATEVER IT WILLED, DEPENDENT
UPON ITS BIASED VIEW AS TO PETITIONER'S DUTIES AND HIS DISREGARD
THEREOF, A PRACTICE REMINISCENT OF THAT PURSUED IN CERTAIN LESS
RESPECTED NATIONS IN RECENT YEARS. 

IN MY OPINION, SUCH A PROCEDURE IS UNWORTHY OF THE TRADITIONS OF OUR
PEOPLE OR OF THE IMMENSE SACRIFICES THAT THEY HAVE MADE TO ADVANCE THE
COMMON IDEALS OF MANKIND.  THE HIGH FEELINGS OF THE MOMENT DOUBTLESS
WILL BE SATISFIED.  BUT IN THE SOBER AFTERGLOW WILL COME THE
REALIZATION OF THE BOUNDLESS AND DANGEROUS IMPLICATIONS OF THE
PROCEDURE SANCTIONED TODAY.  NO ONE IN A POSITION OF COMMAND IN AN
ARMY, FROM SERGEANT TO GENERAL, CAN ESCAPE THOSE IMPLICATIONS.  INDEED,
THE FATE OF SOME FUTURE PRESIDENT OF THE UNITED STATES AND HIS CHIEFS
OF STAFF AND MILITARY ADVISERS MAY WELL HAVE BEEN SEALED BY THIS
DECISION.  BUT EVEN MORE SIGNIFICANT WILL BE THE HATRED AND ILL-WILL
GROWING OUT OF THE APPLICATION OF THIS UNPRECEDENTED PROCEDURE.  THAT
HAS BEEN THE INEVITABLE EFFECT OF EVERY METHOD OF PUNISHMENT
DISREGARDING THE ELEMENT OF PERSONAL CULPABILITY.  THE EFFECT IN THIS
INSTANCE, UNFORTUNATELY, WILL BE MAGNIFIED INFINITELY, FOR HERE WE ARE
DEALING WITH THE RIGHTS OF MAN ON AN INTERNATIONAL LEVEL.  TO SUBJECT
AN ENEMY BELLIGERENT TO AN UNFAIR TRIAL, TO CHARGE HIM WITH AN
UNRECOGNIZED CRIME, OR TO VENT ON HIM OUR RETRIBUTIVE EMOTIONS ONLY
ANTAGONIZES THE ENEMY NATION AND HINDERS THE RECONCILIATION NECESSARY
TO A PEACEFUL WORLD. 

THAT THERE WERE BRUTAL ATROCITIES INFLICTED UPON THE HELPLESS
FILIPINO PEOPLE, TO WHOM TYRANNY IS NO STRANGER, BY JAPANESE ARMED
FORCES UNDER THE PETITIONER'S COMMAND IS UNDENIABLE.  STARVATION,
EXECUTION OR MASSACRE WITHOUT TRIAL, TORTURE, RAPE, MURDER AND WANTON
DESTRUCTION OF PROPERTY WERE FOREMOST AMONG THE OUTRIGHT VIOLATIONS OF
THE LAWS OF WAR AND OF THE CONSCIENCE OF A CIVILIZED WORLD.  THAT JUST
PUNISHMENT SHOULD BE METED OUT TO ALL THOSE RESPONSIBLE FOR CRIMINAL
ACTS OF THIS NATURE IS ALSO BEYOND DISPUTE.  BUT THESE FACTORS DO NOT
ANSWER THE PROBLEM IN THIS CASE.  THEY DO NOT JUSTIFY THE ABANDONMENT
OF OUR DEVOTION TO JUSTICE IN DEALING WITH A FALLEN ENEMY COMMANDER. 
TO CONCLUDE OTHERWISE IS TO ADMIT THAT THE ENEMY HAS LOST THE BATTLE
BUT HAS DESTROYED OUR IDEALS. 

WAR BREEDS ATROCITIES.  FROM THE EARLIEST CONFLICTS OF RECORDED
HISTORY TO THE GLOBAL STRUGGLES OF MODERN TIMES INHUMANITIES, LUST AND
PILLAGE HAVE BEEN THE INEVITABLE BY-PRODUCTS OF MAN'S RESORT TO FORCE
AND ARMS.  UNFORTUNATELY, SUCH DESPICABLE ACTS HAVE A DANGEROUS
TENDENCY TO CALL FORTH PRIMITIVE IMPULSES OF VENGEANCE AND RETALIATION
AMONG THE VICTIMIZED PEOPLES.  THE SATISFACTION OF SUCH IMPULSES IN
TURN BREEDS RESENTMENT AND FRESH TENSION.  THUS DOES THE SPIRAL OF
CRUELTY AND HATRED GROW. 

IF WE ARE EVER TO DEVELOP AN ORDERLY INTERNATIONAL COMMUNITY BASED
UPON A RECOGNITION OF HUMAN DIGNITY IT IS OF THE UTMOST IMPORTANCE THAT
THE NECESSARY PUNISHMENT OF THOSE GUILTY OF ATROCITIES BE AS FREE AS
POSSIBLE FROM THE UGLY STIGMA OF REVENGE AND VINDICTIVENESS.  JUSTICE
MUST BE TEMPERED BY COMPASSION RATHER THAN BY VENGEANCE.  IN THIS, THE
FIRST CASE INVOLVING THIS MOMENTOUS PROBLEM EVER TO REACH THIS COURT,
OUR RESPONSIBILITY IS BOTH LOFTY AND DIFFICULT.  WE MUST INSIST, WITHIN
THE CONFINES OF OUR PROPER JURISDICTION, THAT THE HIGHEST STANDARDS OF
JUSTICE BE APPLIED IN THIS TRIAL OF AN ENEMY COMMANDER CONDUCTED UNDER
THE AUTHORITY OF THE UNITED STATES.  OTHERWISE STARK RETRIBUTION WILL
BE FREE TO MASQUERADE IN A CLOAK OF FALSE LEGALISM.  AND THE HATRED AND
CYNICISM ENGENDERED BY THAT RETRIBUTION WILL SUPPLANT THE GREAT IDEALS
TO WHICH THIS NATION IS DEDICATED.    THIS COURT FORTUNATELY HAS TAKEN
THE FIRST AND MOST IMPORTANT STEP TOWARD INSURING THE SUPREMACY OF LAW
AND JUSTICE IN THE TREATMENT OF AN ENEMY BELLIGERENT ACCUSED OF
VIOLATING THE LAWS OF WAR.  JURISDICTION PROPERLY HAS BEEN ASSERTED TO
INQUIRE "INTO THE CAUSE OF RESTRAINT OF LIBERTY" OF SUCH A PERSON.  28
U.S.C. SEC. 452.  THUS THE OBNOXIOUS DOCTRINE ASSERTED BY THE
GOVERNMENT IN THIS CASE, TO THE EFFECT THAT RESTRAINTS OF LIBERTY
RESULTING FROM MILITARY TRIALS OF WAR CRIMINALS ARE POLITICAL MATTERS
COMPLETELY OUTSIDE THE ARENA OF JUDICIAL REVIEW, HAS BEEN REJECTED
FULLY AND UNQUESTIONABLY.  THIS DOES NOT MEAN, OF COURSE, THAT THE
FOREIGN AFFAIRS AND POLICIES OF THE NATION ARE PROPER SUBJECTS OF
JUDICIAL INQUIRY.  BUT WHEN THE LIBERTY OF ANY PERSON IS RESTRAINED BY
REASON OF THE AUTHORITY OF THE UNITED STATES THE WRIT OF HABEAS CORPUS
IS AVAILABLE TO TEST THE LEGALITY OF THAT RESTRAINT, EVEN THOUGH DIRECT
COURT REVIEW OF THE RESTRAINT IS PROHIBITED.  THE CONCLUSIVE
PRESUMPTION MUST BE MADE, IN THIS COUNTRY AT LEAST, THAT ILLEGAL
RESTRAINTS ARE UNAUTHORIZED AND UNJUSTIFIED BY ANY FOREIGN POLICY OF
THE GOVERNMENT AND THAT COMMONLY ACCEPTED JURIDICAL STANDARDS ARE TO BE
RECOGNIZED AND ENFORCED.  ON THAT BASIS JUDICIAL INQUIRY INTO THESE
MATTERS MAY PROCEED WITHIN ITS PROPER SPHERE. 

THE DETERMINATION OF THE EXTENT OF REVIEW OF WAR TRIALS CALLS FOR
JUDICIAL STATESMANSHIP OF THE HIGHEST ORDER.  THE ULTIMATE NATURE AND
SCOPE OF THE WRIT OF HABEAS CORPUS ARE WITHIN THE DISCRETION OF THE
JUDICIARY UNLESS VALIDLY CIRCUMSCRIBED BY CONGRESS.  HERE WE ARE
CONFRONTED WITH A USE OF THE WRIT UNDER CIRCUMSTANCES NOVEL IN THE
HISTORY OF THE COURT.  FOR MY OWN PART, I DO NOT FEEL THAT WE SHOULD BE
CONFINED BY THE TRADITIONAL LINES OF REVIEW DRAWN IN CONNECTION WITH
THE USE OF THE WRIT BY ORDINARY CRIMINALS WHO HAVE DIRECT ACCESS TO THE
JUDICIARY IN THE FIRST INSTANCE.  THOSE HELD BY THE MILITARY LACK ANY
SUCH ACCESS; CONSEQUENTLY THE JUDICIAL REVIEW AVAILABLE BY HABEAS
CORPUS MUST BE WIDER THAN USUAL IN ORDER THAT PROPER STANDARDS OF
JUSTICE MAY BE ENFORCEABLE. 

BUT FOR THE PURPOSES OF THIS CASE I ACCEPT THE SCOPE OF REVIEW
RECOGNIZED BY THE COURT AT THIS TIME.  AS I UNDERSTAND IT, THE
FOLLOWING ISSUES IN CONNECTION WITH WAR CRIMINAL TRIALS ARE REVIEWABLE
THROUGH THE USE OF THE WRIT OF HABEAS CORPUS:  (1) WHETHER THE MILITARY
COMMISSION WAS LAWFULLY CREATED AND HAD AUTHORITY TO TRY AND TO CONVICT
THE ACCUSED OF A WAR CRIME; (2) WHETHER THE CHARGE AGAINST THE ACCUSED
STATED A VIOLATION OF THE LAWS OF WAR; (3) WHETHER THE COMMISSION, IN
ADMITTING CERTAIN EVIDENCE, VIOLATED ANY LAW OR MILITARY COMMAND
DEFINING THE COMMISSION'S AUTHORITY IN THAT RESPECT; AND (4) WHETHER
THE COMMISSION LACKED JURISDICTION BECAUSE OF A FAILURE TO GIVE ADVANCE
NOTICE TO THE PROTECTING POWER AS REQUIRED BY TREATY OR CONVENTION. 

THE COURT, IN MY JUDGMENT, DEMONSTRATES CONCLUSIVELY THAT THE
MILITARY COMMISSION WAS LAWFULLY CREATED IN THIS INSTANCE AND THAT
PETITIONER COULD NOT OBJECT TO ITS POWER TO TRY HIM FOR A RECOGNIZED
WAR CRIME.  WITHOUT PAUSING HERE TO DISCUSS THE THIRD AND FOURTH
ISSUES, HOWEVER, I FIND IT IMPOSSIBLE TO AGREE THAT THE CHARGE AGAINST
THE PETITIONER STATED A RECOGNIZED VIOLATION OF THE LAWS OF WAR. 

IT IS IMPORTANT, IN THE FIRST PLACE, TO APPRECIATE THE BACKGROUND OF
EVENTS PRECEDING THIS TRIAL.  FROM OCTOBER 9, 1944, TO SEPTEMBER 2,
1945, THE PETITIONER WAS THE COMMANDING GENERAL OF THE 14TH ARMY GROUP
OF THE IMPERIAL JAPANESE ARMY, WITH HEADQUARTERS IN THE PHILIPPINES. 
THE RECONQUEST OF THE PHILIPPINES BY THE ARMED FORCES OF THE UNITED
STATES BEGAN APPROXIMATELY AT THE TIME WHEN THE PETITIONER ASSUMED THIS
COMMAND.  COMBINED WITH A GREAT AND DECISIVE SEA BATTLE, AN INVASION
WAS MADE ON THE ISLAND OF LEYTE ON OCTOBER 20, 1944.  "IN THE SIX DAYS
OF THE GREAT NAVAL ACTION THE JAPANESE POSITION IN THE PHILIPPINES HAD
BECOME EXTREMELY CRITICAL.  MOST OF THE SERVICEABLE ELEMENTS OF THE
JAPANESE NAVY HAD BEEN COMMITTED TO THE BATTLE WITH DISASTROUS
RESULTS.  THE STRIKE HAD MISCARRIED, AND GENERAL MACARTHUR'S LAND WEDGE
WAS FIRMLY IMPLANTED IN THE VULNERABLE FLANK OF THE ENEMY  ...  THERE
WERE 260,000 JAPANESE TROOPS SCATTERED OVER THE PHILIPPINES BUT MOST OF
THEM MIGHT AS WELL HAVE BEEN ON THE OTHER SIDE OF THE WORLD SO FAR AS
THE ENEMY'S ABILITY TO SHIFT THEM TO MEET THE AMERICAN THRUSTS WAS
CONCERNED.  IF GENERAL MACARTHUR SUCCEEDED IN ESTABLISHING HIMSELF IN
THE VISAYAS WHERE HE COULD STAGE, EXPLOIT, AND SPREAD UNDER COVER OF
OVERWHELMING NAVAL AND AIR SUPERIORITY, NOTHING COULD PREVENT HIM FROM
OVERRUNNING THE PHILIPPINES."  BIENNIAL REPORT OF THE CHIEF OF STAFF OF
THE UNITED STATES ARMY, JULY 1, 1943, TO JUNE 30, 1945, TO THE
SECRETARY OF WAR, P. 74. 

BY THE END OF 1944 THE ISLAND OF LEYTE WAS LARGELY IN AMERICAN
HANDS.  AND ON JANUARY 9, 1945, THE ISLAND OF LUZON WAS INVADED. 
"YAMASHITA'S INABILITY TO COPE WITH GENERAL MACARTHUR'S SWIFT MOVES,
HIS DESIRED REACTION TO THE DECEPTION MEASURES, THE GUERRILLAS, AND
GENERAL KENNEY'S AIRCRAFT COMBINED TO PLACE THE JAPANESE IN AN
IMPOSSIBLE SITUATION.  THE ENEMY WAS FORCED INTO A PIECEMEAL COMMITMENT
OF HIS TROOPS."  IBID., P. 78.  IT WAS AT THIS TIME AND PLACE THAT MOST
OF THE ALLEGED ATROCITIES TOOK PLACE.  ORGANIZED RESISTANCE AROUND
MANILA CEASED ON FEBRUARY 23.  REPEATED LAND AND AIR ASSAULTS
PULVERIZED THE ENEMY AND WITHIN A FEW MONTHS THERE WAS LITTLE LEFT OF
PETITIONER'S COMMAND EXCEPT A FEW REMNANTS WHICH HAD GATHERED FOR A
LAST STAND AMONG THE PRECIPITOUS MOUNTAINS. 

AS THE MILITARY COMMISSION HERE NOTED, "THE DEFENSE ESTABLISHED THE
DIFFICULTIES FACED BY THE ACCUSED WITH RESPECT NOT ONLY TO THE SWIFT
AND OVERPOWERING ADVANCE OF AMERICAN FORCES, BUT ALSO TO THE ERRORS OF
HIS PREDECESSORS, WEAKNESSES IN ORGANIZATION, EQUIPMENT, SUPPLY WITH
ESPECIAL REFERENCE TO FOOD AND GASOLINE, TRAINING, COMMUNICATION,
DISCIPLINE AND MORALE OF HIS TROOPS.  IT WAS ALLEGED THAT THE SUDDEN
ASSIGNMENT OF NAVAL AND AIR FORCES TO HIS TACTICAL COMMAND PRESENTED
ALMOST INSURMOUNTABLE DIFFICULTIES.  THIS SITUATION WAS FOLLOWED, THE
DEFENSE CONTENDED, BY FAILURE TO OBEY HIS ORDERS TO WITHDRAW TROOPS
FROM MANILA, AND THE SUBSEQUENT MASSACRE OF UNARMED CIVILIANS,
PARTICULARLY BY NAVAL FORCES.  PRIOR TO THE LUZON CAMPAIGN, NAVAL
FORCES HAD REPORTED TO A SEPARATE MINISTRY IN THE JAPANESE GOVERNMENT
AND NAVAL COMMANDERS MAY NOT HAVE BEEN RECEPTIVE OR EXPERIENCED IN THIS
INSTANCE WITH RESPECT TO A JOINT LAND OPERATION UNDER A SINGLE
COMMANDER WHO WAS DESIGNATED FROM THE ARMY SERVICE." 

THE DAY OF FINAL RECKONING FOR THE ENEMY ARRIVED IN AUGUST, 1945.  ON
SEPTEMBER 3, THE PETITIONER SURRENDERED TO THE UNITED STATES ARMY AT
BAGUIO, LUZON.  HE IMMEDIATELY BECAME A PRISONER OF WAR AND WAS
INTERNED IN PRISON IN CONFORMITY WITH THE RULES OF INTERNATIONAL LAW. 
ON SEPTEMBER 25, APPROXIMATELY THREE WEEKS AFTER SURRENDERING, HE WAS
SERVED WITH THE CHARGE IN ISSUE IN THIS CASE.  UPON SERVICE OF THE
CHARGE HE WAS REMOVED FROM THE STATUS OF A PRISONER OF WAR AND PLACED
IN CONFINEMENT AS AN ACCUSED WAR CRIMINAL.  ARRAIGNMENT FOLLOWED ON
OCTOBER 8 BEFORE A MILITARY COMMISSION SPECIALLY APPOINTED FOR THE
CASE.  PETITIONER PLEADED NOT GUILTY.  HE WAS ALSO SERVED ON THAT DAY
WITH A BILL OF PARTICULARS ALLEGING 64 CRIMES BY TROOPS UNDER HIS
COMMAND.  A SUPPLEMENTAL BILL ALLEGING 59 MORE CRIMES BY HIS TROOPS WAS
FILED ON OCTOBER 29, THE SAME DAY THAT THE TRIAL BEGAN.  NO CONTINUANCE
WAS ALLOWED FOR PREPARATION OF A DEFENSE AS TO THE SUPPLEMENTAL BILL. 
THE TRIAL CONTINUED UNINTERRUPTED UNTIL DECEMBER 5, 1945.  ON DECEMBER
7 PETITIONER WAS FOUND GUILTY AS CHARGED AND WAS SENTENCED TO BE
HANGED. 

THE PETITIONER WAS ACCUSED OF HAVING "UNLAWFULLY DISREGARDED AND
FAILED TO DISCHARGE HIS DUTY AS COMMANDER TO CONTROL THE OPERATIONS OF
THE MEMBERS OF HIS COMMAND, PERMITTING THEM TO COMMIT BRUTAL ATROCITIES
AND OTHER HIGH CRIMES."  THE BILLS OF PARTICULARS FURTHER ALLEGED THAT
SPECIFIC ACTS OF ATROCITY WERE COMMITTED BY "MEMBERS OF THE ARMED
FORCES OF JAPAN UNDER THE COMMAND OF THE ACCUSED."  NOWHERE WAS IT
ALLEGED THAT THE PETITIONER PERSONALLY COMMITTED ANY OF THE ATROCITIES,
OR THAT HE ORDERED THEIR COMMISSION, OR THAT HE HAD ANY KNOWLEDGE OF
THE COMMISSION THEREOF BY MEMBERS OF HIS COMMAND. 

THE FINDINGS OF THE MILITARY COMMISSION BEAR OUT THIS ABSENCE OF ANY
DIRECT PERSONAL CHARGE AGAINST THE PETITIONER.  THE COMMISSION MERELY
FOUND THAT ATROCITIES AND OTHER HIGH CRIMES "HAVE BEEN COMMITTED BY
MEMBERS OF THE JAPANESE ARMED FORCES UNDER YOUR COMMAND  ...  THAT THEY
WERE NOT SPORADIC IN NATURE BUT IN MANY CASES WERE METHODICALLY
SUPERVISED BY JAPANESE OFFICERS AND NONCOMMISSIONED OFFICERS; ...  THAT
DURING THE PERIOD IN QUESTION YOU FAILED TO PROVIDE EFFECTIVE CONTROL
OF YOUR TROOPS AS WAS REQUIRED BY THE CIRCUMSTANCES." 

IN OTHER WORDS, READ AGAINST THE BACKGROUND OF MILITARY EVENTS IN THE
PHILIPPINES SUBSEQUENT TO OCTOBER 9, 1944, THESE CHARGES AMOUNT TO
THIS:  "WE, THE VICTORIOUS AMERICAN FORCES, HAVE DONE EVERYTHING
POSSIBLE TO DESTROY AND DISORGANIZE YOUR LINES OF COMMUNICATION, YOUR
EFFECTIVE CONTROL OF YOUR PERSONNEL, YOUR ABILITY TO WAGE WAR.  IN
THOSE RESPECTS WE HAVE SUCCEEDED.  WE HAVE DEFEATED AND CRUSHED YOUR
FORCES.  AND NOW WE CHARGE AND CONDEMN YOU FOR HAVING BEEN INEFFICIENT
IN MAINTAINING CONTROL OF YOUR TROOPS DURING THE PERIOD WHEN WE WERE SO
EFFECTIVELY BESIEGING AND ELIMINATING YOUR FORCES AND BLOCKING YOUR
ABILITY TO MAINTAIN EFFECTIVE CONTROL.  MANY TERRIBLE ATROCITIES WERE
COMMITTED BY YOUR DISORGANIZED TROOPS.  BECAUSE THESE ATROCITIES WERE
SO WIDESPREAD WE WILL NOT BOTHER TO CHARGE OR PROVE THAT YOU COMMITTED,
ORDERED OR CONDONED ANY OF THEM.  WE WILL ASSUME THAT THEY MUST HAVE
RESULTED FROM YOUR INEFFICIENCY AND NEGLIGENCE AS A COMMANDER.  IN
SHORT, WE CHARGE YOU WITH THE CRIME OF INEFFICIENCY IN CONTROLLING YOUR
TROOPS.  WE WILL JUDGE THE DISCHARGE OF YOUR DUTIES BY THE
DISORGANIZATION WHICH WE OURSELVES CREATED IN LARGE PART.  OUR
STANDARDS OF JUDGMENT ARE WHATEVER WE WISH TO MAKE THEM." 

NOTHING IN ALL HISTORY OR IN INTERNATIONAL LAW, AT LEAST AS FAR AS I
AM AWARE, JUSTIFIES SUCH A CHARGE AGAINST A FALLEN COMMANDER OF A
DEFEATED FORCE.  TO USE THE VERY INEFFICIENCY AND DISORGANIZATION
CREATED BY THE VICTORIOUS FORCES AS THE PRIMARY BASIS FOR CONDEMNING
OFFICERS OF THE DEFEATED ARMIES BEARS NO RESEMBLANCE TO JUSTICE OR TO
MILITARY REALITY. 

INTERNATIONAL LAW MAKES NO ATTEMPT TO DEFINE THE DUTIES OF A
COMMANDER OF AN ARMY UNDER CONSTANT AND OVERWHELMING ASSAULT; NOR DOES
IT IMPOSE LIABILITY UNDER SUCH CIRCUMSTANCES FOR FAILURE TO MEET THE
ORDINARY RESPONSIBILITIES OF COMMAND.  THE OMISSION IS UNDERSTANDABLE. 
DUTIES, AS WELL AS ABILITY TO CONTROL TROOPS, VARY ACCORDING TO THE
NATURE AND INTENSITY OF THE PARTICULAR BATTLE.  TO FIND AN UNLAWFUL
DEVIATION FROM DUTY UNDER BATTLE CONDITIONS REQUIRES DIFFICULT AND
SPECULATIVE CALCULATIONS.  SUCH CALCULATIONS BECOME HIGHLY
UNTRUSTWORTHY WHEN THEY ARE MADE BY THE VICTOR IN RELATION TO THE
ACTIONS OF A VANQUISHED COMMANDER.  OBJECTIVE AND REALISTIC NORMS OF
CONDUCT ARE THEN EXTREMELY UNLIKELY TO BE USED IN FORMING A JUDGMENT AS
TO DEVIATIONS FROM DUTY.  THE PROBABILITY THAT VENGEANCE WILL FORM THE
MAJOR PART OF THE VICTOR'S JUDGMENT IS AN UNFORTUNATE BUT INESCAPABLE
FACT.  SO GREAT IS THAT PROBABILITY THAT INTERNATIONAL LAW REFUSES TO
RECOGNIZE SUCH A JUDGMENT AS A BASIS FOR A WAR CRIME, HOWEVER FAIR THE
JUDGMENT MAY BE IN A PARTICULAR INSTANCE.  IT IS THIS CONSIDERATION
THAT UNDERMINES THE CHARGE AGAINST THE PETITIONER IN THIS CASE.  THE
INDICTMENT PERMITS, INDEED COMPELS, THE MILITARY COMMISSION OF A
VICTORIOUS NATION TO SIT IN JUDGMENT UPON THE MILITARY STRATEGY AND
ACTIONS OF THE DEFEATED ENEMY AND TO USE ITS CONCLUSIONS TO DETERMINE
THE CRIMINAL LIABILITY OF AN ENEMY COMMANDER.  LIFE AND LIBERTY ARE
MADE TO DEPEND UPON THE BIASED WILL OF THE VICTOR RATHER THAN UPON
OBJECTIVE STANDARDS OF CONDUCT. 

THE COURT'S RELIANCE UPON VAGUE AND INDEFINITE REFERENCES IN CERTAIN
OF THE HAGUE CONVENTIONS AND THE GENEVA RED CROSS CONVENTION IS
MISPLACED.  THUS THE STATEMENT IN ARTICLE 1 OF THE ANNEX TO HAGUE
CONVENTION NO. IV OF OCTOBER 18, 1907, 36 STAT. 2277, 2295, TO THE
EFFECT THAT THE LAWS, RIGHTS AND DUTIES OF WAR APPLY TO MILITARY AND
VOLUNTEER CORPS ONLY IF THEY ARE "COMMANDED BY A PERSON RESPONSIBLE FOR
HIS SUBORDINATES," HAS NO BEARING UPON THE PROBLEM IN THIS CASE.  EVEN
IF IT HAS, THE CLAUSE "RESPONSIBLE FOR HIS SUBORDINATES" FAILS TO STATE
TO WHOM THE RESPONSIBILITY IS OWED OR TO INDICATE THE TYPE OF
RESPONSIBILITY CONTEMPLATED.  THE PHRASE HAS RECEIVED DIFFERING
INTERPRETATIONS BY AUTHORITIES ON INTERNATIONAL LAW.  IN OPPENHEIM,
INTERNATIONAL LAW (6TH ED., REV. BY LAUTERPACHT, 1940, VOL. 2, P. 204,
FN. 3) IT IS STATED THAT "THE MEANING OF THE WORD 'RESPONSIBLE'...  IS
NOT CLEAR.  IT PROBABLY MEANS 'RESPONSIBLE TO SOME HIGHER AUTHORITY,'
WHETHER THE PERSON IS APPOINTED FROM ABOVE OR ELECTED FROM BELOW; ..." 
ANOTHER AUTHORITY HAS STATED THAT THE WORD "RESPONSIBLE" IN THIS
PARTICULAR CONTEXT MEANS "PRESUMABLY TO A HIGHER AUTHORITY," OR
"POSSIBLY IT MERELY MEANS ONE WHO CONTROLS HIS SUBORDINATES AND WHO
THEREFORE CAN BE CALLED TO ACCOUNT FOR THEIR ACTS."  WHEATON,
INTERNATIONAL LAW (7TH ED., BY KEITH, LONDON, 1944, P. 172, FN. 30). 
STILL ANOTHER AUTHORITY, WESTLAKE, INTERNATIONAL LAW (1907, PART II, P.
61), STATES THAT "PROBABLY THE RESPONSIBILITY INTENDED IS NOTHING MORE
THAN A CAPACITY OF EXERCISING EFFECTIVE CONTROL."  FINALLY, EDMONDS AND
OPPENHEIM, LAND WARFARE (1912, P. 19, PAR. 22) STATE THAT IT IS ENOUGH
"IF THE COMMANDER OF THE CORPS IS REGULARLY OR TEMPORARILY COMMISSIONED
AS AN OFFICER OR IS A PERSON OF POSITION AND AUTHORITY  ..."  IT SEEMS
APPARENT BEYOND DISPUTE THAT THE WORD "RESPONSIBLE" WAS NOT USED IN
THIS PARTICULAR HAGUE CONVENTION TO HOLD THE COMMANDER OF A DEFEATED
ARMY TO ANY HIGH STANDARD OF EFFICIENCY WHEN HE IS UNDER DESTRUCTIVE
ATTACK; NOR WAS IT USED TO IMPUTE TO HIM ANY CRIMINAL RESPONSIBILITY
FOR WAR CRIMES COMMITTED BY TROOPS UNDER HIS COMMAND UNDER SUCH
CIRCUMSTANCES.    THE PROVISIONS OF THE OTHER CONVENTIONS REFERRED TO
BY THE COURT ARE ON THEIR FACE EQUALLY DEVOID OF RELEVANCE OR
SIGNIFICANCE TO THE SITUATION HERE IN ISSUE.  NEITHER ARTICLE 19 OF
HAGUE CONVENTION NO. X, 36 STAT. 2371, 2389, NOR ARTICLE 26 OF THE
GENEVA RED CROSS CONVENTION OF 1929, 47 STAT. 2074, 2092, REFERS TO
CIRCUMSTANCES WHERE THE TROOPS OF A COMMANDER COMMIT ATROCITIES WHILE
UNDER HEAVILY ADVERSE BATTLE CONDITIONS.  REFERENCE IS ALSO MADE TO THE
REQUIREMENT OF ARTICLE 43 OF THE ANNEX TO HAGUE CONVENTION NO. IV, 36
STAT. 2295, 2306, THAT THE COMMANDER OF A FORCE OCCUPYING ENEMY
TERRITORY "SHALL TAKE ALL THE MEASURES IN HIS POWER TO RESTORE, AND
ENSURE, AS FAR AS POSSIBLE, PUBLIC ORDER AND SAFETY, WHILE RESPECTING,
UNLESS ABSOLUTELY PREVENTED, THE LAWS IN FORCE IN THE COUNTRY."  BUT
THE PETITIONER WAS MORE THAN A COMMANDER OF A FORCE OCCUPYING ENEMY
TERRITORY.  HE WAS THE LEADER OF AN ARMY UNDER CONSTANT AND DEVASTATING
ATTACKS BY A SUPERIOR RE-INVADING FORCE.  THIS PROVISION IS SILENT AS
TO THE RESPONSIBILITIES OF A COMMANDER UNDER SUCH CONDITIONS AS THAT. 

EVEN THE LAWS OF WAR HERETOFORE RECOGNIZED BY THIS NATION FAIL TO
IMPUTE RESPONSIBILITY TO A FALLEN COMMANDER FOR EXCESSES COMMITTED BY
HIS DISORGANIZED TROOPS WHILE UNDER ATTACK.  PARAGRAPH 347 OF THE WAR
DEPARTMENT PUBLICATION, BASIC FIELD MANUAL, RULES OF LAND WARFARE, FM
27-10(1940), STATES THE PRINCIPAL OFFENSES UNDER THE LAWS OF WAR
RECOGNIZED BY THE UNITED STATES.  THIS INCLUDES ALL OF THE ATROCITIES
WHICH THE JAPANESE TROOPS WERE ALLEGED TO HAVE COMMITTED IN THIS
INSTANCE.  ORIGINALLY THIS PARAGRAPH CONCLUDED WITH THE STATEMENT THAT
"THE COMMANDERS ORDERING THE COMMISSION OF SUCH ACTS, OR UNDER WHOSE
AUTHORITY THEY ARE COMMITTED BY THEIR TROOPS, MAY BE PUNISHED BY THE
BELLIGERENT INTO WHOSE HANDS THEY MAY FALL."  THE MEANING OF THE PHRASE
"UNDER WHOSE AUTHORITY THEY ARE COMMITTED" WAS NOT CLEAR.  ON NOVEMBER
15, 1944, HOWEVER, THIS SENTENCE WAS DELETED AND A NEW PARAGRAPH WAS
ADDED RELATING TO THE PERSONAL LIABILITY OF THOSE WHO VIOLATE THE LAWS
OF WAR.  CHANGE 1, FM 27-10.  THE NEW PARAGRAPH 345.1 STATES THAT
"INDIVIDUALS AND ORGANIZATIONS WHO VIOLATE THE ACCEPTED LAWS AND
CUSTOMS OF WAR MAY BE PUNISHED THEREFOR.  HOWEVER, THE FACT THAT THE
ACTS COMPLAINED OF WERE DONE PURSUANT TO ORDER OF A SUPERIOR OR
GOVERNMENT SANCTION MAY BE TAKEN INTO CONSIDERATION IN DETERMINING
CULPABILITY, EITHER BY WAY OF DEFENSE OR IN MITIGATION OF PUNISHMENT. 
THE PERSON GIVING SUCH ORDERS MAY ALSO BE PUNISHED."  FROM THIS THE
CONCLUSION SEEMS INESCAPABLE THAT THE UNITED STATES RECOGNIZES
INDIVIDUAL CRIMINAL RESPONSIBILITY FOR VIOLATIONS OF THE LAWS OF WAR
ONLY AS TO THOSE WHO COMMIT THE OFFENSES OR WHO ORDER OR DIRECT THEIR
COMMISSION.  SUCH WAS NOT THE ALLEGATION HERE.  CF. ARTICLE 67 OF THE
ARTICLES OF WAR, 10 U.S.C. SEC. 1539. 

THERE ARE NUMEROUS INSTANCES, ESPECIALLY WITH REFERENCE TO THE
PHILIPPINE INSURRECTION IN 1900 AND 1901, WHERE COMMANDING OFFICERS
WERE FOUND TO HAVE VIOLATED THE LAWS OF WAR BY SPECIFICALLY ORDERING
MEMBERS OF THEIR COMMAND TO COMMIT ATROCITIES AND OTHER WAR CRIMES. 
FRANCISCO FRANI, G.O. 143, DEC. 13, 1900, HQ. DIV. PHIL.; EUGENIO
FERNANDEZ AND JUAN SORIANO, G.O. 28, FEB. 6, 1901, HQ. DIV. PHIL.;
CIRIACO CABUNGAL, G.O. 188, JUL. 22, 1901, HQ. DIV. PHIL.; NATALIO
VALENCIA, G.O. 221, AUG. 17, 1901, HQ. DIV. PHIL.; ANICETA ANGELES,
G.O. 246, SEPT. 2, 1901, HQ. DIV. PHIL.; FRANCISCO BRAGANZA, G.O. 291,
SEPT. 26, 1901, HQ. DIV. PHIL.; LORENZO ANDAYA, G.O. 328, OCT. 25,
1901, HQ. DIV. PHIL.  AND IN OTHER CASES OFFICERS HAVE BEEN HELD LIABLE
WHERE THEY KNEW THAT A CRIME WAS TO BE COMMITTED, HAD THE POWER TO
PREVENT IT AND FAILED TO EXERCISE THAT POWER.  PEDRO ABAD SANTOS, G.O.
130, JUNE 19, 1901, HQ. DIV. PHIL.  CF. PEDRO A. CRUZ, G.O. 264, SEPT.
9, 1901, HQ. DIV. PHIL.  IN NO RECORDED INSTANCE, HOWEVER, HAS THE MERE
INABILITY TO CONTROL TROOPS UNDER FIRE OR ATTACK BY SUPERIOR FORCES
BEEN MADE THE BASIS OF A CHARGE OF VIOLATING THE LAWS OF WAR. 

THE GOVERNMENT CLAIMS THAT THE PRINCIPLE THAT COMMANDERS IN THE FIELD
ARE BOUND TO CONTROL THEIR TROOPS HAS BEEN APPLIED SO AS TO IMPOSE
LIABILITY ON THE UNITED STATES IN INTERNATIONAL ARBITRATIONS.  CASE OF
JEANNAUD (1880), 3 MOORE, INTERNATIONAL ARBITRATIONS (1898) 3000; CASE
OF THE ZAFIRO (1910), 5 HACKWORTH, DIGEST OF INTERNATIONAL LAW (1943)
707.  THE DIFFERENCE BETWEEN ARBITRATING PROPERTY RIGHTS AND CHARGING
AN INDIVIDUAL WITH A CRIME AGAINST THE LAWS OF WAR IS TOO OBVIOUS TO
REQUIRE ELABORATION.  BUT EVEN MORE SIGNIFICANT IS THE FACT THAT EVEN
THESE ARBITRATION CASES FAIL TO ESTABLISH ANY PRINCIPLE OF LIABILITY
WHERE TROOPS ARE UNDER CONSTANT ASSAULT AND DEMORALIZING INFLUENCES BY
ATTACKING FORCES.  THE SAME OBSERVATION APPLIES TO THE COMMON LAW AND
STATUTORY DOCTRINE, REFERRED TO BY THE GOVERNMENT, THAT ONE WHO IS
UNDER A LEGAL DUTY TO TAKE PROTECTIVE OR PREVENTIVE ACTION IS GUILTY OF
CRIMINAL HOMICIDE IF HE WILLFULLY OR NEGLIGENTLY OMITS TO ACT AND DEATH
IS PROXIMATELY CAUSED.  STATE V. HARRISON, 107 N.J.L. 213, 152 A. 867;
STATE V. IRVINE, 126 LA. 434, 52 SO. 567; HOLMES, THE COMMON LAW, P.
278.  NO ONE DENIES THAT INACTION OR NEGLIGENCE MAY GIVE RISE TO
LIABILITY, CIVIL OR CRIMINAL.  BUT IT IS QUITE ANOTHER THING TO SAY
THAT THE INABILITY TO CONTROL TROOPS UNDER HIGHLY COMPETITIVE AND
DISASTROUS BATTLE CONDITIONS RENDERS ONE GUILTY OF A WAR CRIME IN THE
ABSENCE OF PERSONAL CULPABILITY.  HAD THERE BEEN SOME ELEMENT OF
KNOWLEDGE OR DIRECT CONNECTION WITH THE ATROCITIES THE PROBLEM WOULD BE
ENTIRELY DIFFERENT.  MOREOVER, IT MUST BE REMEMBERED THAT WE ARE NOT
DEALING HERE WITH AN ORDINARY TORT OR CRIMINAL ACTION; PRECEDENTS IN
THOSE FIELDS ARE OF LITTLE IF ANY VALUE.  RATHER WE ARE CONCERNED WITH
A PROCEEDING INVOLVING AN INTERNATIONAL CRIME, THE TREATMENT OF WHICH
MAY HAVE UNTOLD EFFECTS UPON THE FUTURE PEACE OF THE WORLD.  THAT FACT
MUST BE KEPT UPPERMOST IN OUR SEARCH FOR PRECEDENT. 

THE ONLY CONCLUSION I CAN DRAW IS THAT THE CHARGE MADE AGAINST THE
PETITIONER IS CLEARLY WITHOUT PRECEDENT IN INTERNATIONAL LAW OR IN THE
ANNALS OF RECORDED MILITARY HISTORY.  THIS IS NOT TO SAY THAT ENEMY
COMMANDERS MAY ESCAPE PUNISHMENT FOR CLEAR AND UNLAWFUL FAILURES TO
PREVENT ATROCITIES.  BUT THAT PUNISHMENT SHOULD BE BASED UPON CHARGES
FAIRLY DRAWN IN LIGHT OF ESTABLISHED RULES OF INTERNATIONAL LAW AND
RECOGNIZED CONCEPTS OF JUSTICE. 

BUT THE CHARGE IN THIS CASE, AS PREVIOUSLY NOTED, WAS SPEEDILY DRAWN
AND FILED BUT THREE WEEKS AFTER THE PETITIONER SURRENDERED.  THE TRIAL
PROCEEDED WITH GREAT DISPATCH WITHOUT ALLOWING THE DEFENSE TIME TO
PREPARE AN ADEQUATE CASE.  PETITIONER'S RIGHTS UNDER THE DUE PROCESS
CLAUSE OF THE FIFTH AMENDMENT WERE GROSSLY AND OPENLY VIOLATED WITHOUT
ANY JUSTIFICATION.  ALL OF THIS WAS DONE WITHOUT ANY THOROUGH
INVESTIGATION AND PROSECUTION OF THOSE IMMEDIATELY RESPONSIBLE FOR THE
ATROCITIES, OUT OF WHICH MIGHT HAVE COME SOME PROOF OR INDICATION OF
PERSONAL CULPABILITY ON PETITIONER'S PART.  INSTEAD THE LOOSE CHARGE
WAS MADE THAT GREAT NUMBERS OF ATROCITIES HAD BEEN COMMITTED AND THAT
PETITIONER WAS THE COMMANDING OFFICER; HENCE HE MUST HAVE BEEN GUILTY
OF DISREGARD OF DUTY.  UNDER THAT CHARGE THE COMMISSION WAS FREE TO
ESTABLISH WHATEVER STANDARD OF DUTY ON PETITIONER'S PART THAT IT
DESIRED.  BY THIS FLEXIBLE METHOD A VICTORIOUS NATION MAY CONVICT AND
EXECUTE ANY OR ALL LEADERS OF A VANQUISHED FOE, DEPENDING UPON THE
PREVAILING DEGREE OF VENGEANCE AND THE ABSENCE OF ANY OBJECTIVE
JUDICIAL REVIEW. 

AT A TIME LIKE THIS WHEN EMOTIONS ARE UNDERSTANDABLY HIGH IT IS
DIFFICULT TO ADOPT A DISPASSIONATE ATTITUDE TOWARD A CASE OF THIS
NATURE.  YET NOW IS PRECISELY THE TIME WHEN THAT ATTITUDE IS MOST
ESSENTIAL.  WHILE PEOPLES IN OTHER LANDS MAY NOT SHARE OUR BELIEFS AS
TO DUE PROCESS AND THE DIGNITY OF THE INDIVIDUAL, WE ARE NOT FREE TO
GIVE EFFECT TO OUR EMOTIONS IN RECKLESS DISREGARD OF THE RIGHTS OF
OTHERS.  WE LIVE UNDER THE CONSTITUTION, WHICH IS THE EMBODIMENT OF ALL
THE HIGH HOPES AND ASPIRATIONS OF THE NEW WORLD.  AND IT IS APPLICABLE
IN BOTH WAR AND PEACE.  WE MUST ACT ACCORDINGLY.  INDEED, AN UNCURBED
SPIRIT OF REVENGE AND RETRIBUTION, MASKED IN FORMAL LEGAL PROCEDURE FOR
PURPOSES OF DEALING WITH A FALLEN ENEMY COMMANDER, CAN DO MORE LASTING
HARM THAN ALL OF THE ATROCITIES GIVING RISE TO THAT SPIRIT.  THE
PEOPLE'S FAITH IN THE FAIRNESS AND OBJECTIVENESS OF THE LAW CAN BE
SERIOUSLY UNDERCUT BY THAT SPIRIT.  THE FIRES OF NATIONALISM CAN BE
FURTHER KINDLED.  AND THE HEARTS OF ALL MANKIND CAN BE EMBITTERED AND
FILLED WITH HATRED, LEAVING FORLORN AND IMPOVERISHED THE NOBLE IDEAL OF
MALICE TOWARD NONE AND CHARITY TO ALL.  THESE ARE THE REASONS THAT LEAD
ME TO DISSENT IN THESE TERMS. 

Part I  Part II   Part III  Part IV  Part V