Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1873-06-08
ESTABLISHED 1910.

/ perndy and treachery than the assassin-
alton of its bearer, after they have been
acknowledged ana received by those tC
whom they are sent. No statute of the
United States makes this act crime, and
therefore il is not punishable under the
rules and articles Of war, and il punisha-
BILE at all must be through the power
derived from the usages Of war, kin
dred to the act in question. Bad faith
is the breaking of his parole by pris-
oner of war When the United States
were at war with Mexico several officers
of the Mexican army were tried by MILL
tary commissions composed of officers
of the United States army and convict
ed and sentenced TO be shot, and exc
cuted, for breaking their parole. Nu-
! merous trials Of a similar nature took
place during the war o. the rebellion,
hat there are no statutory provisions
whateverupOn the subject and the whole
power of the military authorities in such
! cases is derived from the usages of war.
! On the twsnty-thiTd of August, 1865, a
military commission, duly appointed,
I assembled Ia the city of Washington fol
I the trial of Henry Writ, who plead
among other things that the military
commission had no jurisdiction over
either his person or over the subject
matter of the charges and specifications,
being a tribunal unauthorized by either
the statutes Of military law, martial law
or well-established usage; but this plea
was overruied, and he was convicted
upon several charges, one of which was
murder in the violation of the laws and
customs of war, and after sentence
he was hung for his crime.
All the proceedings in this case
derived their authority and validity from
the common law of war. Certain per-
sons, it will be remembered, were tried
and convicted in the same way for the
assassination of President Lincoln. At
tOrney-Gene Speed in the discussion
of this subject Opinions, volume two,
page two hundred and ninety-seven) [,
saws: awe have seen that when war
comes the laws and usages of war come
also, and that during war they are part
of the laws of the land. Under
the constitution, congress may
define ano punish Offenses against
those laws, but in default
of congress defining those laws and pre-
scribing a punishment for their infrac-
ton, aud made of proceeding to ascer-
tain whether an OfIense has been COM
mitted, the punishment to be IL
fiicted by the army must be governed
by the laws and Ussges of war as under
stood and practiced by the civilized ma
tions of the world. Again, if the pris-
oner be a regular unOffenGing soldier of
the opposite party to the war, he should
be treated with all courtesy, and
kindness consistent with his safe custO-
dy. If he has offended against the laws
of war, he should have such a trial as
the laws of war require. a spy, though
a prisoner of war, may be tried, con-
demned and executed by military tri-
hunal, without a breach of the constitu-
ton. A bushwhacker, bandit of war,
rebel, or assassin, being public enemy,
may be tried, condemned and executed
as an offender against the laws Of war.
The law of nations, which is the result
of the experience and wisdom of
ages, has decided that jayhswkers,
banditti, etc, are offenders against the
laws of nature and OF war, and such
are amenable to the military. Our con-
stitutiOn has made these laws part of
the laws of the land. See also Rattel,
$50; WheatOn's International law, 40S;
Woolsey's international law, 220; Hal
leck's international law, 400; Mulligan's
case, page four; and Wallace, page two,
holds, under the circumstances herein
stated, military commission to be ille-
gal, but the facts therein related are en-
tirely different from those under cOnsid-
Grafton. Mulligan was q resident of a
State not in rebellion; the courts were
open and unrestricted for his
prosecution; he was neither aprisoner of
war nor attached in any way TO the
military or naval service of the United
States. According to instructions here
tOfOre referred to, no civil tribunal has
jurisdiction in the cases disclosed by the
papers before me. Sections 40 and IL
thereof are as follows: Section 40.
There exists no law or body of authOTi-
ty or rules of action between hostile ar
mics except that branch of the laws of
nature and of nations which is called
the laws ana usages Of war. Section 4.
All municipal law of the ground on
which armies stand, or of the countries
to which they belong, is silent and of no
effect between the armies in the
field.n Manifestly these rules are
to a great extent, if not alto
gether, 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 the
case if q municipal law was in force and
application to an act committed under
such circumstances. All laws and Gus
toms of the civilized world may not be
applicable to an armed conflict with an
Indian tribe upon our western frontier,
but the circumstances attending the as
sassination of Candy and Thomas are
such as to make their murder as much a
violation of the law Of savage as Of civ
ilized warfare, and the Indians con-
cerned in it fully understood the base
ness 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 treaty-making purposes, and as they
frequently carry on organized and pro-
tracted wars, they may properly, as it
seems TO me, be held subject TO those
rules of warfare which make negotia-
ton for peace after hostilities possible,
and which make perfidy like that a
question punishable by the military au-
thOrities. Perhaps the war with the
ModOcs is practically ended, unless
some of them should escape and
renew hostilities; butt is the right Ofthe
United States, as there is no agreement
for peace, to determine for themselves
whether or not anything more ought to
be done for the protection of the cOun-
try, or the punishment Of crime grow
ing out of war.
Section ffty-nine of said instructions
is as follows: "a prisoner of war remains
answerable for his crimes committed
against the captors, the army or the
people before he was captured and for
which he has not been punished by his
own authorities. My conclusion, there
fore, is that a military commission may
he appointed to try such of the Modoc
IndianssnOw in custody as are charged
with oftenses against the recognized
laws of war, and that if, upon such trial,
any are found guilty, they may be sub
ject TO such punishment as those laws
require or justify. Very respectfully,
your Obedient servant,
GEO. II. WILLIAMS. Attorney
TELEGRAMS.