The Portland daily press., 1873-06-09


to the MoGoc captives:
DEPARTMENT OF JUSTICE,
Washington, June Z, 1873.
To the President:
SIR have the honor to acknowledge the re-
ceipt from you of several paper relative to the
Modoc Indians now in the cusbdy of the Unit
ed States army,with the reques tor my opinion
as to authority to try certain Of the prisoners
by military tribunal.
The main facts out of wh!h the question
arises are these:
In 1884 the United States mde tseaty with
these Indians, by the terms ofwhich they were
to go and remain upon reservation in the
State of Oregon. Late last fall, the Indians be-
ing away from their reservatin, q military de-
tachment was sent to proCre their return
Finding them unwilling so 70 peacefully, the
officer indicated his determination to use com.
pulson, in consequence of whch conflict ell
sued between the United Staes troops and In
dams. Soon after several eaeeable settlers
aud their families, in the vanity, were MUIR
dered by the Indians of thisband They then
entrench' d themselves in tk lava beds in the
neighborhood. Fighting enned. and one or two
severe battles took place, in which persons on
both sides were wounded and killed and the
United States troops repulsd Pending hos
tilities, negotiations were oEned for peace and
on the 18th of April last, Cen. Canby Rev. Mr.
Thomas and Mr.. Meachaua at point between
the the opposing forces aud in pursuance
of q mutual agreement tolhat end, met Capt
Jack, the leader of the Ihians, with some OF
his chief warriors to discus the terms of a trea-
~, ard while so engaged, Gen. Candy and Mr..
Thomas were treacherousy assasnated, and
Mr.. Meacham severely woaded by the Indians
present upon that occasi0 Battles followed,
and Capt Jack and all, ornast all of his tribe
have been captured, and all are now in the
hands of the military autbrities. Gen. Sher-
- !" ~ "unication the Secretary of
War, dated the third inS, recommends that
,.... -. ....-, .dians as hive violated military
law, be tried by militaryrbunai.
This recommendation ispproved by the Sec
rotary of War. lnstructns were prepared in
1868 by Francis Leiber, IL. D.. revised nv a
board Of officers. of whid Gen. E. A Hitch
cock was President, and fterwards approved
by the President of the United States, were
published for the government of the armies of
the United States in thefed. Section 10 of
these instructions is as fobws: military juris-
diction is of two kinds First. that which is
conferred and defined byaatute; second, that
which is derived from counon laws of war"
Military offences undc, statute law must be
tried IN the manner therea decided but militia
ry offences which do 0tcome within statute
''"st he tried aud punishd under common law
of war.
.oiuce the character of De courts which exer-
else these Jurisdictions dpends upon the local
laws of each particular cmnty. in the armies of
the United States, the frst is exercised by
courts martial, while sass which do not come
within the rules and articles of war or the ju-
risdiction conferred by st,ute on courts martial
are tried by military COMMISSIONS. All the au-
thorties which have hen able to examine
upon this subject harmoize with these instrac-
tions
According to the law,of war there is moth
ing more sacred than fag ,.f truce dispatched
in good faith, and thereon he no greater act
of perfidy and treachery San the assassination
of its bearers after they have been acknowledge
ed and received by those wbnm thew are sent.
No statute of the United Ma tes makes this act
q crime, and therefore itk NOV nnnisha lie nm
der the ''rules and articlesof var and if pun
ishable at all, must be thsnrh a mower derived
through the usages of wa E,rdrad tn the act
in question is bad faith ii tho hraalxino of his
parole by a paroled priso@r While lie Unit
ed States we're at war win Moyico several Off
GERS of the Mexican arm wara tried Inv militia
ry commission, cOmpo@d n officers of the
United States army, and conv;ctaJ and sentenc
ed to be shot and execued cor breaking their
parole. Many trials of as;ro;,or natnre took
place during the war of Se raheliion Int there
are no statutary provisiops ubateyer mon the
subject and the whole Oou,or Of tho military
authorities in such casesia darived from the
usages of war. A-
wiz me nvsoi ~ ueuelal then cites the case of
~, auu =, enHeo 4eGted for the murder of
of Attorney General Sped ~, qou' tba subject
After several quotations upon s vuv "a II tbe
laws and customs Of lvi,s, NC oayo ., nov not
be applicable to an armed o a: a. III, ~ In.
dian tribes upon our wes,n' fnout;ars Init the
circumstances attending ~ oaaas;r,o,t;on Of |
Gen. Candy and Mr.. ae 'ssa'' s,ah 90 70
make their murder as mnoa a iJ,t;",, of Tho
laws of savage as of civil n,J." and the
indians concerned in It mndors}ood the |
pasene05 anu 'ieaonIiy " their act. 1t is diff |
tribes to the United Stat, ieiation' 49, hara
been recognized as inderss pay a. sno ;y,,i tics
for treaty making purposautu 1o .s tIau fre,
quenty carry on organs, a nnd 20 nrotyacted
wars, they may properly a. !. aa RI me he
hela suoJeo. w snos ~ rules of warfare which
make nes9',ait ,;ai ior Nace after hostilties
possible, anu hmase perfdy like that in
q1es.,,T, tho ,yar ~ Military authority
tically ended, unless sons .ee ~, sbonlg as.
cape and renew hostilites III ~ IL the rioht of
the United States as then ou. IL a ,o for
peace, to determine forthaSs NJ as whetber or
not anything more ousht n s Nv dane for the
nrotection of the county,. 10 oe uG of
crimes growing out of Rssp t GtR;,n by of said
is as f0lon oecnoN nr;sonar of
war remains aus o..o.s hf his crimes commit
TED against shG en 1Tos - army or people, com.
mltted DeIore NC ma; SSaptured, and for which
ne has not oeeh pun''ned BY his own authori-