Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1873-06-13
THE MODOCS. HOW SIgALLTTsEf
BE TRIED

THE MODOCS. HOW SHALL THEY
BE TRIED,
The Attorney General of the United
States, at the request of the President,
has given an opinion as to the author
ity to try certain of the Modoc prison
ers by "court martial tribunal" The
Attorney General thinks the President
has the right to organize military TIL
bunals with power to infict even the
death penalty. In SO far as he differs
in this respect from the Supreme
Court of the United States, we pre-
sumo it is only so much the worse for
the Court.
The Attorney General prefaces his
opinion with statement of the facts
upon which it is based. He alleges
that the Modocs were, in violation OF a
treaty, away from their reservation
that military detachment, sent Tor
the purpose, having failed to procure
their return peacefully, the officer in
dicated his determination to use COM
pulsion, after which conflicts and muir
ders, fighting and battles ensued; later
still, the assassination of General
Candy, more battles and fighting, end
ing with the capture of Captain Jack
and his band. This state of affairs
the Attorney General assumes was
" war;" though possibly all the laws
and customs of civilized warfare may
not be applicable to it. He thinks,
however, that the Modocs fully under
stood the baseness and treachery OF
the act of killing General Candy, and
that the rules OF warfare apply to
them, at least, SO far as to make them
punishable by a military commission.
In support Of these views the Attorney
General relies upon the 18th section OF
book of Instructions, drawn up by
Francis Leiber, LII. D., revised by
Board of Army Officers, and published
for the guidance of the United States
Armies in the field. This 18th section
declares that military Jurisdiction is of
two kinds. First-That which is con-
ferred and defined by the statute.
Second-That which is derived from
the common law of war. In the
Armies of the United States the first IS
exercised by court martial, while
cases which do not come within the
rules of war or the jurisdiction conferred
by the statute in court martials, are tried
by military commissions.
! Asthis book of Instructions has no legal
sanction, save that arising from an order
of the President of the United States,
the Attorney-General seeks to fortify
it by precedents, two of which seem
were it not for the fact that they oc-
cured after the publication of the
book of Instructions, to wit: the Wirz
case and the Surratt case. 1t would
perhaps be sufficient to say that any
rule or instruction, depending for its
sanction upon military massacres
like those of Captain Wirz and that
poor, defenceless old woman, Mrs.
| Surratt, needs no argument for its
| rejection. We never expected to see
such lawless butchery called up as a
legal precedent by the chief law officer
| of the United States. Our space will
not, however, permit us to dwell upon
this point further than to say that we
| are glad to see that the Attorney Gen
erals sense of shame was strong
enough to prevent him from desig-
| mating Mrs. Surratt's case by name.
When the Attorney General sought to
drag in as precedent the military
murder of poor old woman, to es-
tablish the right of the Federal Execu-
tive to commit other military muir
ders, it was the consciousness that
he was guilty of dirty work, that
made him refer to the case in such
general terms as that "certain persons
were tried and convicted in the same way
for the assassination of President Lin
coln."
But was there war between the
United States and the SIodocs?
The power to make war is vested by
the Constitution solely in Congress.
Neither the President nor the General
commanding nor any other officer has
the right to make war. Congress has
neither declared nor recognized the
existence of war with the Modocs
More than this, Congress has passed
an act forbidding the making of treaties
with the Indian tribes, which, if it
means anything at all, means that
they were not to be recognized as
nations with whom var could be made.
And indeed if the Federal Constitu-
ton be any guide to their conduct it is
difficult to see what right Congress has
to declare war against the Indians, or
treat them otherwise than as citizens.
The Nth Article Of the Amendments
to the Constitution says:
Section l. All persons born Or natll-
rallzed in the United States and sub
Ject to the jurisdiction thereof, are
citizens of the United States and of
the State wherever they reside.
With this plain mandate before him
it will be difficult for the President, or
for the Attorney General, to show that
the recent troubles constituted in any
legal sense, ga war;"
But suppose there was war, has
the President any right to institute
military commissions? The Constitu-
ton of the United States says:
Section 1, Article ". The judicial
power of the United States shall be
vested in one Supreme Court and in
such inferior Courts as the Congress
may from time ordain and establish.
The Judges, both of the Supreme and
inferior Courts, shall hold their Offices
during good behavior.
1t must be plain to the dullest I'M
derstanding that the Appointment, by
the President, of a'.militaIy commits