New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-06-08
PROCEEDINGS ofthysD sY ORDERS
! CAPTAIN JACK INTERVIEWED
UNSUCCESSFUL a1JEMp1 70 ESCAPE
NCTINT OF SPANISH TROOPS


OptnIon OF Attorney General WlLl1am0 on
the Disposition to be Made Of the
Nlodoc Priso1ers--lIe Considers Them
Liable 20 Trial BY Military Come
mission, fer Violating the Lave of
Warfare-Pestofic Appointments.
WASHINGTON, June 1.-THE following is
the opinion Of the Attorney General, on the
question submitted by the War Depart
nent. relative to the captive MOdOcs:
DEPARTMENT ~ .'U.riCR,e
Washington, y. G.. JIne :. 1850. J
10 the President:
SIR Il have the honor 70 acknowledge the
receipt from you Of severa! papers relative
to the ModOc Indians. now in custody of
the United States army. with a request for
captain Of che prisOne1s Cy . military
tribunal.
The main facts on: Of which the question
arises are these:
In 1864 the United States made = treaty
with these Indians. bv the terms Of which
they we're to go end remain upon ressrva.
t;on in the State OF Oregon. Late Last fall.
the Indians being away from sheiY 1ess1ya.
ton. :: .liii.ayy detachment was seat 20 pro-
cure theiy return. Finding them unwilling
20 60 peaceablr, the Officer !ndicsSea his
determination to use cOmpulsiOn, in cOnses
guence Of which = copfie. easued between
tue Cnited States troops and the Indians.
Soon after several peaceable citizens and
their families in the vicinity were murdered
by the Indians o4 this band.
They then intyelched themselves In the
lava beds in the nsighborhoOd; fighting
slsued and one or more severe battles. IL
which persons On both sides wey0 wounded
and killed, and the United States troops
yepulsed. Pending hOstilities negotiations
were opened for peace, and on the thirteenth
of Apri! last General Canby, Rev. Mr..
Thomas and MI NeachaIR, at = point be.
tween che opposing forces, and in the l,ur.
suance OF mutual agreement 20 that end,
met Captain Jack. the leader Of the Indians,
with some Of his chiefs. 70 discuss the tsrAs
Of a treaty. amt while 60 engaged General
Capby and Mr.. Thomas were treacherOusly
assassinated and Mr.. Meacham severely
wounded by the lndians present on the
occasion.
Battles followed. and Captain Jack and all
and are now in the hands Of the military an
thorities. General Sherman. in a eOmmuni.
cation to the Secretary of War dated The
third instant, SeeOm1neAds that such OF
those Indians as have violated military
law be tried by a military tribunal. This
recommendation is approved by the Secge.
.ary OF War.
Francis Lieber. LID. revised Oy q board
cock was president. and, after npproval by
che President Of the United States, were
published for the government Of the armies
Of the United States in the field.
Section thirteen OF these Instructions Is as
follows:
Military jurisdiction is Of two kinds:
First-Vhat which is conferred All De.
Tended by statute.
second--That which Is derived from sue
common law of war. Military Offenses un.
deE the statute law must be tried in the
manner therein declared; but military OF.
lenses which do not come within the statute
must be tried and punished under the com.
mon law of war. The character OF the
courts which exercise these jurisdictions
depends upon the ioca! laws VI each par.
ticular country.
In the forms Of the United States. the
first is exercised by courts martial, while
cases which do not come within the rules
and articles Of war, OF the jurisdiction con-
ferred by statute in courts martial, are
tried by military commissions.
ALL the authorities which have been
able 70 examine upon this eubject, har.
monize with these instructions. According
to the laws of war there is nothing more
sacred than a flag of truce dispatched in
good faith, and there can be no greater act
Of pertdy and treachery than the assassina-
| UlOu VI AS UCdACiSs altCl tuNy u0NO UOCA
acknowledged and received by those
to whom they are sent. Nc statute
OF the United States makes this
act crime, and therefore 10 is not permis.
sible under the rules and articles OF war,
and if punishable at all must be through a
power derived from the usages OF war.
Kindred 10 the act IN question is Dad
| faith in the breaking Of his parole OF q pa
roled prisoner. While the United States
! of the Mexican army were tried ty inlIs'
! tary commission composed of officers Of the
United States army, convicted and een-
fenced to be shot and executed, i0g break.
| ing their parole.
Numerous trials Of q similar nature took
! place during the war OF the rebellion, Gri
! there are NO statutory provisions shat
! ever upon the subject. and the whGie power
| of the military authorities in such cases .a
derived from the usages 81 war.
| On the twenty.thiiI of August. 1860, .
! military commission, duly appointed, as
| sembled in the city Of Washington. Tor thu
! trial of Henry Werz, who pleaded among
other things tha: a military commission hat
no jurisdiction either over his person. o
over the subject matter Of the charges ant
I specifications. being tribunal unauthor
lied bv either statute, military law, mar
tial law, or we'll established usage, but tnl
plea was overruled, and he was convicoe'
upon several charges, one OF whlcn we wa
murder, in violation OF the laws and cus a
toms Of war, and, after sentence. he ,' wa
hung for his crimes. AL the proceeding s
in the case derive their authority an" Va
lidity from the common law OF war.
Certain persons, it will be remembered
we're tried and convicted in the same Wa
l for the assassination Of President 1lncoi!
Attorney General Speed. in discussing 'n'
! subject, Gays: ,o,.a. n
laws aud ussges Of var come also' saS w