Gold Hill daily news. [volume] (Gold Hill, N.T. [Nev.]) 1863-1882, 1873-06-09
BY TELEGRAPH Fs& WASHINGTON.

v~AsHISoToN, June 7.-Followingls
tpk decision Of the Attorney General
Relative to the Modoc captives:
DEPARTMENT OF JUsLIcE.
WASHINGTON, June z, 1873.
To the President Of the United
States-Slr: / have the honor TO &C
knowledge the receipt from you Of sew
eral papers relative to the Modoc H.
dams now in custody of the u. 8. ar
my. with n request for my opinion as
to the authority to try certain prison.
ers by military tribunal. The main
facts Of the case under which the ques-
ton arises are these: :.
In 1854 the United States made a
treaty with these Indians, by the terms
Of which they were to 60 and remain
upon a reservation in the State Of Ore
goa. Late last Fall the Indians took
themselves away FROM their reserya-
ton, and a military detachment was
sent to procure their return. Finding
them unwilling to 20 peacefully, the
officer In command announced his de-
termination to use compulsion. In con-
sequence Of which a conflict ensued be-
tween the U. S. troops and the lndt-
ans. Soon after, several peaceable cit
liens and their families were murdered
| by Indians Of this band. They then
entrenched themselves In tho lava
beds in the neighborhood fighting en-
| sued, and one or more severe battles
In which persons on both sides were
wounded and killed, and the U. 5.
troops repulsed. Pending hostilities,
negotiations were opened for peace, ana
on the 18th Of April last, Gen. Candy,
Rev. Mr. Thomas and Mr.. Meacham,
at a point between the opposing forces
and in pursuance Of q mutual agree
ment to that end, met Captain Jack,
the leader Of the Indians. with some
of his chief warriors to discuss terns
Of treaty. aud while Sd engaged, Gen.
Candy and Mr.. Thomas were treacher-
ously murdered and Mr.. Meacham Sc
verely wounded by the Indians upon
that occasion. Battles followed, and
Captain Jack and all or most all Of his
tribe have been captured, and are now
in the hands of the military authori-
ties. Gen. Sherman, in a communica-
ton to the Secretary Of War, dated the
third inst, recommends that such Of
these Indians as have violated military
law, be tried by military tribunal.
Thi, Recommendation IL approved by
the Secretary Of War.
Instructions were prepared in 1858
by Francis Leider, LID, devised by
a board OF officers, of which Gen. A.
Hitchcock was President, and after
approval by the President Of the Uni
ted States, were published for the good
Of the armies Of the United States In
the field. Section Is OF these instruc-
tions Is as follows: Military jurls-
diction Is of two kinds. First, that
which Is confined and defined by stat
ute ; second, that which Is derived
from the common law Of war;" Mill
tary offences, under statute law, must
be tried In the manner therein decided;
| but military offences which don't come
| within the statute, must be tried and
| punished under tho common law of
war. The character of the courts
which exercise these jurisdictions de-
ponds upon the local laws Of each par
ticular country. In the armies Of the
United States, it is first exercised by
courts-martial, which, In cases which
do not come within the rules, articles
or jurisdiction conferred BY statute on
courtS-martial, are tried by military
| Commissions. All authorities which
have been able to examine upon this
subject, harmonic with these inStruc-
tions. According to the laws Of war,
there is nothing more sacred than a
flag of truce. dispatched in good faith.
aud there be no greater act Of per-
idy and treachery than the assassina-
ton OF its bearers, after they have been
acknowledged and received by those
to whom they are sent. No statute
| of the United States makes this act a
crime. therefore 1t Is not punishable
under the rules and articles Of war. and
il punishable at all must be through
power derived from the usages of war,
or from usages Of war kindred to the
act In question, rs bad faith or break
ing his parole by n psroled prisoner.
When the United States were at war
with Mexico, several officers of the
Mexican army were tried by a military
commission, composed OF Unit
ed States army officers, and con-
yicted and sentenced to be shot,
tor breaking their paroles. Numerous
trials Of = similar nature took place
during the war Of the rebellion, but
there are no statutory provisions what
eyer on the subject, and the whole
power Of the military authorities In
such cases Is derived from the usages
Of war. On the 23d of August, 1865, a
military commission, duly appointed,
assembled In the city of Washington
for the trial Of Henry Wirz, who
pleaded among other things that mil
itary' commission had no Jurisdiction
over either his person or over the sub
ject matter Of the charges and specifi-
cations, being n tribunal unauthorized
by either statute, military law, q
tial law. or well established usages,
but this plea was overruled and he was
convicted on several charges, n Of
which was "murder in violation Of
the laws and customs Of war;" and af-
tCE StulclCc uo was uuIk lux uiS
crimes. All the proceedings in this
case derived their authority mud valid
ity from the common law Of war. Ger
tain persons, 1t will be remembered,
were tried and convicted in the same
way for the assassination Of President
Lincoln. Attorney General Speed in
discussing this subject, Opinions vol
ums IL, page 1911 says 1--WE have seen
that when war comes, the laws and
usages OF war come also, and that dur
ing war they are part Of the laws Of
the land. Under the constitution
| Congress may define and punish Of
lenses against those laws, but in de-
fault of Congress defining those laws
and punishment for their iEfractlon
and mode Of proceeding to ascertain
whether an offense has been committed
and what punishment Is to be inflicted,
the army must be governed by the
laws and usage, Of war as was under
stood and practiced by the civilized ma
tions OF the world" Again, "if the
prisoner DO a regular unoffending SOL
der Of the opposite party to the war,
he should be treated with all courtesy
and kindness consistent with his safe