Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1873-06-13

war, may be tried, condemned and
executed by military tribunal with
out breach of the Constitution. A
bushwhacker, jayhawker, q bandit,
a war rebel and assassin. being public
enemies, may be tried, condemned
and executed as offenders against the
laws of war.
The law of the nation, which is the
result of the experience and wisdom
of ages, has decided that iayhawkers,
bandits. &C., are offenders against the
laws of the nation, and of war, and as
such amenable to the military. Our
Constitution has made these laws a
part of the law of the land. (See also
Waffle $50; Wheaton's Int, law, 406;
Woolrey's Int, law, 220; Halleck's
Int, law, 400. Miligan's case holds,
under the circumstances therein
stated, military commission to be
illegal, but the facts there are entirely
different from those under considera-
ton. Milligan was the resident of a
State not in rebellion. The courts
were open aud unobstructed for his
prose cution. He was neither a pris-
oner of war, nor attached in any way to
the military or naval service of RI e
United States. According to tie
instructions heretofore rendered
no civil tribunal has jurisdiction i'll
the cases disclosed by the. papers be
fore me. Sections 40 and Al thereof,
are as follows 40 There exists no
law OF body of authoritative rules of
action between hostile armies, except
that branch of law of nature and nations
which is call d the law and usages of
war on land. A. All municipal law
of the ground on which the armies
stand or of the countries to which they
belong, is silent and of no effect be-
tween armies in the field. Manifestly to
a great extent, if not altogether, they are
correct, for it cannot be pretended that
United States soldier is guilty OF
murder if he kills a public enemy in
battle, which would be if the 1nuni-
cipal law was in force and applicable
to an act committed under such cir
cumstances. All the laws and customs
of civilized warfare may not be appli.
cable to t,i AIMED conflict with the IN
dian tribe upon our western frontier.
But the circumstances attending the
assassination of Generals Candy and
Thomas, are such as to make THEN
murder as much a violation of law OF
savage as of civilized warfare, and the
Indians concerned in it fully under
stood the baseness and treachery OF
their acts. It is difficult to define ex,
actly the relations of the Indian tribes
| to the United States, but as they have
! been recognized as Independent com
| mpnities for treaty making purposes
and as they frequently carry on organ
lied and protracted wars, they may
| - r. IL L Il,
subject to those rules of warfare which
make a negotiation for peace or hostil
tiles possible. and which make per
fidy like that i'll question punishable
by military authority. Doubtless the
some of them should escape ani
the United States army, where there is
no agreement for peace, to determine
for themselves whether OF not any
thing more ought to be done for TIE
protection of the country or the pun
ishment of crimes growing out of the
war Sec 50 of said instruction, is a:
| follows: prisoner of war remain:
/ answerable for his crimes, committed
before he was captured, and for whicl
he has not been punished by his Owl
authorities. My conclusion therefore
is that a military commission ma,
be appointed to try such Of the Modo'
Indians now i'll custody, as are charged
| with oitensas against the recognized
law Of war, ana that At upon s!,lch tria
any are found gaiilty they liay he sab
iected to such punishment rs thos.
laws require or justify.
Very respectfully, yours,
GEO. n. WILLIAMS,
| Attorney liannrnl