The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-06-08


which a conflict ensued between the United States
troops and the Indians
THE noDoCs COMMENCE TO MURDER.
Soon after several peaceable citizens and their
families in the vicinity were murdered by In
dams OF this band. They then intrenched them
selves in the lava beds in tho neighborhood.
Fighting cnsHed and one or more severe battle, in
which persons both sides were wounded and
killed and the United States troops repulsed.
ASSASSINATION OF CANsy AND THOMAS.
Pending hostiIities negotiations were opened for
peace, AMI on the 18th of April last General Candy
Rev. Mr.. Thomas and Ma. Mcachasn, at point be-
tweenthe opposing forces, and in pursuance OF a
mutua, agreement to that end, met Captain Jack
theiosdcr OF the Indians, with some ofhis chief war
riors, to discuss the Berms Of treaty, and while
30 engaged, General Candy and Mr.. Thomas were
treacherous!y assassinated and Mr.. Meacham &C.
verely wounded by the Indians present upon that
occasion. Battles followed and Captain Jack and
an or most all OF his tribe have been captured. and
are now in the hands OF the military authorities.
HOW THEY SHOULD BE TRIED.
General Sherman, in communication to the
Secretary OF War, dated the 81 instant, recon-
mcnis that such OF these Indians as have violated
military law be tried by a military tribunal This
recommendation is approved by the Secretary OF
War. Instructions were prepared in 1888 by
Francis Leber, LID. revised by Board Of ON.
GERS, OF when General u. A. Hitchcock was Prest
dent ana after approval by the President Of the
United States were published for the government
OF the armies OF the United States in the field.
section 10 Of these instructions is az i0lows:
Military jurisdiction is OF two kinds; first, that
which il conferred and defined by statute; second,
that which is derived from the common law OF war;
Military offences under the statute law must be
tried in the manner therein decided; but military
oInnces which do not come within the Jtatnte
hfa "A m
Of war. The character OF the courts when exer-
else these jurisdictions depends upon the local
the United States the lrst IL exercised bv cpurts
martial, while cases which do not come within the
rnles and articles OF war or The jurisdiction con.
TERED by statute on courts martial are irled
by military commissions.
sACREDNEss or A FLAG OF TRUCE.
All the authorities which have been able 10 eN-
anime upon this subject harmonize with these IN
structions. According to the laws OF war there is
nothing more sacred than nag OF truce de-
spatched in good faith, and there can be no greater
act or perGdy and treachery than the assasslIla-
ton OF It's bearers after they have been acknow-
edged and received by those 10 whom they are
sent No statute OF the United states makes this
act crime, and, therefore, ii Is not punishable
under the "rules and articles OF war;" and, If
punishable at all, must be through power de-
rived from the usages OF war.
VIOLATING THE PAROLE.
Kindred to the action in question in bad faith is
the breaking OIL his parole by paroled prisoner.
While the United States were at war with Mexico
several officers Of the Mexican Army were tried by
q military commission, composed OF officers OF the
United States Army, and convicted and sentenced
to be shot and executed for breaking their paroles.
Numerous trials OF similar nature TOOK place dur
ing the war OF the rebellion but there no statu
tory provisions whatever upon the subject, and
the whole power OF the military authorities in such
cases IL derived from the usagcs Of war.
On the I'D OF August, 1865, q military commission
duly appointed assembled in the city Of Washington
for the trial Of Henry Wirz, who pleaded. among
other things, that the military commission had no
Jurisdiction over either his person over the sub
ject matter OF the charges and specifications
being a tribunal unauthorized by either statute
military law, martial law or well-estab1shed usage.
But this plea was overruled, and he was convicted
upon several charges, one Of which was murder in
violation OF the laws and customs of war, and
after sentence, he was hanged Tor his crimes All
the proceedings in this case derived their authority
and validity from the common law Of war.
Certain PERSONS IL will be remembered, were
tried and convicted IN the same way for the assas-
sination OF President Lincoln.
SPEED ON TIE UsAGEs or Wal.
Attorney General Speed, in discussing this sub
ject, tOpinions. vol. H. p. 2o7) says
We have seen that when war comes
and that during ''t Inc war they are ana
part OF the laws Of the land. Under The conStitu-
non Congress may define and punish oncnces
hning those laws and prescribing q punishment
for their miracti0n and the mode Of proceeding to
ascertain whether an offence has been committed
ana what punishment is 10 be inflicted, the army
must be governed by the laws and nsages Of war
az understood and practiscd by The civilized ma
tons Of the world.
Again
II the prisoner he u regular unofIendlng sol
der OF the opposite party TO the war, he should
be treated with all the courtesy and Kindness con-
sistent with his safe custody. " he has offended
against the laws OF war he should have such trial
and punishment rs the laws OF war require.
spy, though a prisoner OF war, may be tried, con.
demned ana executed by military tribunal with
ont n breach of the constitution. bushwhacker,
a Jayhawker. bandit, a war rebel, an assassin
being public enemies. may be tried, concerned
and executed as Offenders against the laws OF war.
THE LAW OF NATIONS
which is the result Of the experience and wisdom
OF ages. has decided that jayhawkers, bandith,
&c, are offenders against the laws OF nature and
OF war and, az such amenable 10 the military. Our
constitution has made these laws part OF the law
OF the land, tSee also vattel 800; Wheaton's Int.
Law, s06: Woolsey's Int Law. 30; Haleck's Int.
Law, 400. Mligan's case, Wallace. p. =, holds,
under the circumstances herein stated, military
commission to be illegal; but the facts there are
entirely different rom those under consideration.
Mnligan was the resident OF State not In rebel
lion. The courts were open and unobstructed
for his prosecution. He was neither a prisoner
OF war nor attached in any way TO the
military or naval service OF the United States.
According to the instructions heretofore re-
ferred TO- civil tribunal has jurisdiction in the
cases disclosed by the papers before me. sections
40 and Al thereof are as folows:-
SECTION 4O.-There exists no law or body OF
authoritative rules OF action between hostile
armies except that branch OF the law OF nature
and nations which is called the law and usage OF
war on land.
SIC. 41.-An municipal law OF the ground
which armies stand. or OF the countries 10 which
they belong is silent and OF no effect between
armies in the field.
CIVIL LAW OF NO FORCE IN TIME OF WAR.
Manifesty these rules are 10 great extent, If