The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1873-06-09
THE MODOCS.
OeciuiUn of Attorney General vii.
llamR.

NPciUiOn of Attorney General WlI'
IIamS.
WASHINGTON, June 7.-The following
is the decision OF the Attorney Genera
relative 10 the Modoc capuves:
DEPARTMENT OF JUSTICE,
WASHINGTON, Juno Z, 1873. !
10 the PreHdent'
sIR:-I have the honor to acknowledge
the receipt from you OF several papers
relative 10 the Modoc Indians now in the
custody Of the United States Army, with
request for my opinion as to the author
ity 10 try certain ones oil the PFis0neEs by
& military tribunal.
The main facts out OF which the ques-
.ion arises are: In 1904, the United States
made treaty with these Indians, by the
terms oil which they were foreman upon
their reservation in the State Of Oregon.
Late last fall, the Indians being away
from their reservation, q military detach.
ment was sent to procure their return.
Finding them unwilling 10 return peace
fully, the officer indicated his determine
Iion TO use compulsion, In consequence OF
which, conflict ensued between the
United States troops and the Indians.
Soon after, several peaceablc citizens
and their families in the vicinity were
murdered by the Indians OF this band.
They then entrenched themselves In the
Lava Beds. In the neighborhood fighting
ensued and one or more severe battles
were fought, in which persons on both
aides were wounded and killed and the
U. 3. troops repulsed. Pending hostilities
negotiations were opened for peace and
on the 10Th Of April last General Candy,
Rev. Mr.. Thomas and Mr.. heacham at
point between tho opposing forces, and In
pursuance of mutual agreement to that
end, met Capt. Jack, the leader Of the ln'
dians, with some Of his chief warrters to
discuss terms OF treaty, and while so en-
gagged Gen. Candy and MIR. Thomas we're
ireacherouSly murdered and Mr.. Mea-
cham severely wounded by the Indians
present on that on occasion. Capt. Jack
and all or most all of his tribe have been
csptured and are now In the hands OF the
military authorities.
General Sherman in communication
10 the Secretary Of War;, dated the I'd
inst, recommends that such ot these In
dams as have violated military law be
tried by the military tribunal. This rec
Ommendatlon is approved by the Secre-
larry OF War. Instructions were pre-
pared in 1868, by FranciO Lieber, l.. l.. D.,
revised by tho Board OF Officers, OF which
Gen. Z. A. Hitchcock was president, and
after approval by the President Of the
United States, were published for the
government OF the armies OF the United
States in the field. Sections l3 OF these
instructions Is as follows:
Military Jurisdiction is ot two kinds;
First, that which Is conferred and defined
by statute; second, that which Is derived
from common law of war. Military Of
fences under the statute law, must be uied
In the manner therein decided but
military offences which do not come
within the statute must be tried
and punished under the common
law OF war. The character Of the courts
which exercise these jurisdictions depends
upon the local law Of each particular
country. In the armies OF the United
States the frat Is exercised oy court
martial, while cases which do not come
within tho rules and articles or Jurisdic'
ton conferred by statute on courlS'maF'
tial, arc tried by military commissions.
All authorities which I.have been able to
examine upon the subject harmonize with
these inst ructions. According 10 the
laws Of war there Is nothing more sacred
than flag OF truce, despatched In gooc
luith: and there can be no greater act oi
perldy and treachery than the assassina-
lion Of is bearers after they have been
acknowledged and received BY those TO
whom they are sent. NO statute
Of the United States makes this
sct a crime, and therefore Is not punish
able under the rules and articles ol war,
and II punishable at all, must be through
power derived from usages ot war, KIN
dred TO the act in question. Bad faith
Is breaking ol his parole by q paroled
prisoner. When the United States were
ST war with Mexico, several officers oil
the Mexican army were tried by mill
Gary commission composed Of oihcers tne
the United States army, and convicted
and sentenced 10 10 shot and executed
for breaking their parole. Numerous
trials Of q similar nature took place dur
Ing the war Of tue rebellion, but there
are no statute or provisions whatever
upon the subject, and the whole power
Of military authorities In such cases IS
derived from usage Of war. On the 23d
Of August, 1865, q military commission
duly sDpointed assembled in the city Of
Washington for the trial Of Henry Witzr
who pleaded among other things that the
military commission had no jurisdiction
over either his person or over the subject
matter oI the charges and specifications,
beInR tribunal unauthorized by either
the statute, military law, martial law or
we'll established usage. But this plea
was oyerruled and he was convicted upon
the several charges, one of which was Tor
murder In violation Of the laws and Gus
toms OF war, and after sentence he was
hung Tor bis crimes. All the proceedings
in this case derived their authority and
validity from the common law OF war
Certain persons, il will bO remembered,
yerc tried and convicted In the same way
for the assassination Of President Lincoln
Attorney General Speed, in discussing
this subject, Opinions, vol. II, p. 2VO
says: We have seen that when war
comes the laws and usages ol war come
also, and that during war they arc n
part Of the laws Of the land. In
der the Constitution Congress may
define and punish offences aGainst
these laws, but In default Of Congress DO
dnIng these laws and prescribing pun,
Shment for their iniraction and mode ol
proceeding, to ascertain whether an oil
ence has been committed, and that pun
hhment Is to be inflicted, the army
must be governed by the laws and us9gca
Of war, Is understood and practiced by
the civilized nations ol the world. Again
1.-THE prisoner be a regular inottending
colder Of the opposite party 10 the war
be should haVs such trial and punishment
Is the laws Of war require. A spy