Green-Mountain freeman. [volume] (Montpelier, Vt.) 1844-1884, 1873-06-11

OPINION OF THE ATToRNEY-GENERAL.
DEPARTMENT OF JUSTICE,
WASHINGTON, June 7, 1873.


to acknowledge the receipt from you of sever
al papers relative to the Modoc Indians, now
in the custody of the United States army,
with request for my opinion as to the au-
thority to try certain of the prisoners oy
military tribunal. The main facts out OF
which the question arises are these In 1904,
the United States made a treaty with these
Indians, by the terms of which they were 70
90 and remain upon a reservation IN the state
of Oregon. Late last fall, the Indians being
away from their reservation, q military de-
tachment was sent to procure their return.
Finding them unwilling to 60 peacefully ,the
officer indicated his determination to use
compulsion, in consequence of which con-
hict ensued between the United States troops
and the Indians. Soon after, several peace
able citizens and their families in the vicinity
were murdered by Indians of this band. They
then entrenched themselves in the lava beds
in the neighborhood. Fighting ensued, and
one or more severe battles occurred. in which
persons on both sides were killed. and the
U. S. troops were repulsed. Pending nos
tilities, negoti atoms were opened for peace,
and, on the 18th of April last, Gen. Candy,
Rev. Mr.. Thomas and Mr.. Meacham, at a
point between the opposing forces, and In
pursuance of mutual agreement to that end,
met Capt. Jack, the leader of the Indians,
with some of his chief warriors. to discuss the
terms of a treaty, and while so engaged, zen.
Candy and MIR. Thomas were treacherousiy
assassinatcd, and Mr. Meacham severely
wounded, by the Indians present on that oc-
cason. Battles followed and Capt. Jack and
all, or almost all of his tribe, have been cap
tured, and are now in the hands OF the mill
tary authorities.
Ger. Sherman, in a communication to the
secretary of war, dated the Sd inst, recon-
mends that such of these Indians as have vIo-
lated military law, be tried by military
tribunal. This recommendation is approved
by the secretary of war. Instructions were
prepared in 1868 by Francis Leiber, LII ID.
revised by board of officers, of which Gen.
s. Z. Hitchcock was president, and after being
approved by the president of the United
States were published for the government OF
armies of the United States in the field.
Sec. Is of these instructions is as follows
Military jurisdiction is of two kinds first,
that which is confirmed and defined by
statute; second, that which is derived from
the common law of war. Military often ;cs
under statute law must be tried in the man
ner therein decided. But military ofenses
which d. not come within the statute must
be tried and punished under the common
law. The character of the courts which ex-
ercse these jurisdictions depends upon the
local laws of each particular county. In ar
mics of the United States the first is exercised
by courts-martial, while cases which do not
come within the rules and articles of war, or
the jurisdiction conferred by the statutes on
courts-martal, are tried by military commits
siOns.
All the authorities which | have been able
to examine on the subject harmonic with
these Instructions According to the laws OF
war there is nothing more sacred than fl ~
of truce, dispatched in good faith, and there
can be no greater act of perfdy and treachery
than the assassination of its bearers, after
they have been received by those to whom
they are sent. No statute of the United
States makes this act Il crime, and therefore,
it is not punishable under the rules and arti-
Giles of war ,.and, if punishable at all, must be
through power derived from the usages OF
war. Kindred to the act in question in bad
faith is the breaking of his parole by parOl-
ed prisoner. While the United States were
at war with Mexico, several officers of the
Mexican army were tried by military com
mission, composed of officers of the United
States army, and convicted and sentenced to
be shot, and were executed, for breaking
their parole. Numerous trials of a similar
nature took place during the war of the re-
belllon, but there are no statutory provisions
whatever upon the subject, and the whole
power of the military authorities 10 such
cases is derived from the usages of war. The
attorney general then cites the case OF w urZ,
and of those executed for the murder OF
President Lincoln. He lso quotes opinions
of Attorney General Speed bearing on the
subject. After several quotations, he says ::
All the laws and customs of civilized warfare
may not be applicable to an armed conflict
with Indian tribes on our western frontier,
but the circumstances attending the assassin
alton of Candy and Thomas are such as to
make their murder as much a violation of
the lows of savage, as of civilized warfare,
and the Indians concerned IN it fully under
stood the baseness and treachery OF their act.
1t is difficult to define, exactly, the relations
OF the Indian tribes to the United States, but
as they have been recognized as Independent
communities for trea5y-making purposes, and
as they frequently carry on organized and
protratad wars, they may properly BE- held
subject to rules OF warfare which make ne
gotiation for peace, alter hostilitles, possible
and which make perf1y like that IN ques-
ton, punishable by autho ity Doubtless
the war with the ModOcs is practically ended
unless some Of them should escape and renew
hostilities, but it is the right OF the United
States, there is no agreement of peace, to
determine for themselves whether or not any
thing more ought to be done TOR the protec-
ton of the country, or the punishment of the
| crimes growing out of the war. Section 81
| of the said '.nstr uctions' is as follows -
A prisoner of war remains answerable fol-
crimes committed against the captor's army
or people, committed before he was captured
and for which he has not been punished by
his own authorities.
My conclusion therefore is that military
commission may be appointd to try such OF til,
Modoc Indians now IN custody as are char
ged with offenses against the recognized laws
of war, and that, if, upon such trial, any art
| found guilty, they may be subjected to suct
punishment as those laws reqaire or justify
| Very respectfully, your obedIent servant,
GEO. Ii. WILLIAMS, Attorney General.
AFFAIRS IN CAMP
| A correspondent writes from B1yle's camp
Tule lake, an account of an Interview with
Capt Jack, through the medium Of an in
terpreter. At FIST he was retcent, but
finally his sister Mary prevailed on BIN t.
talk His first remark was in relation to
his shackles He said it made him feel NEAR
to be hobbled like a horse. He was moi
afraid to die, and had no idea of running
aa ay. AS he spoke, his eyes snapped anC
he looked very lion in a rage. All ques-
tions pertaining to his fighting he declined
to answer. When asked his age, he gave the
the correspondent to understand that he was
thirty-six, and he then voluntarily began
statement of his grievances, and those OF
his people, with reference to the Ben
Wright ARRAY. He said that the white
man murdered his people, years ago, and
that what he had done was only in payment
of old debts He did not enter into details,
but left the interpreter, " Scar-faced Char
ley" to patch up the story. A critical
study of Jacks face corroborates the impress
sion derived at fret sight. He is a thorough
Indian His head is large, quite square, and