Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1873-06-08
The statute and Comm on Law o.
sFFA War. z :
Capt. Jack Likened to Henry Writ
and Mrs. Surratt.
The Prisoners RENTED to Gen. Da.
For Trial by Military Commission

For Trial by Military Commission.
Sunday Reading.
WASHINGTON, June T.-The following
is the 6ecision of the Attorney General rel
ative to the Modocs: Y
Department of Justice, Washington, June
Z, lS73.-To the 4, President. Sir: have
the honor to acknowledge the receipt from
you of several papers relative to the Modoc
Indians now in the custody Of the United
States Army, with ree.Goss reS;Gsoosses iormy opinion
as to .-ulnority to try certain of the prison
ers by military tribunal The main facts
out of which the question arises are these:
srE % uai origin of the War. 7g .--
% In 1894, the United States made q treaty
with these indiana, by the terms OF which
they were to go and remain upon a reser-
vation In the State of Oregon. Late last
fall, the Indians beirg away from their
reservation, military detachment was sent
to procure their retu.n. Finding them un-
willing to go peacefully, the officer indica-
ted his determination to use compttlsioD,
in consequence OF which q conflict ensued
between the United States troops and the
Indians. Soon after, several peaceful eisi-
zens and families in the vicinity were mur-
dered by the Indiaes. This done, they
then e1trenched Themselves In the lava
beds. Fighting ensued, and one or more
severe battles, in which persons on both
sides were wounded and killed, and the
United States troops repulsed.
The Massacre. t
Pending hostiities negotiations were
opened for peace, and on the 18th of last
April Gen. Candy, Rev. Thomas and Mr..
Meacbsm, at a point between the opposing
forces and in pursuance Of Mutual rec
ment to that end, met Capt. Jack, the lead
er OF the Indians, with some cheifs, to dis
cuss ;he terms Cf treaty, and while so en-.
gagged Gen. Candy and Mr.. Thomas were
treache ously murdered and Mr.. Meacham
severely wounded by the Indians present
upon that occasion. Battles followed, and
Capt. Jack and all or most of bis tribe have
been captured aud are now in the ha nds Of
the military authorities. aU.JVt@ -
sherman's Recommendation. -al
& Gen. Sherman, in communication to
the Secretary of War, recommt nds that
such of the Indians IS nave violated mill
tary law be tried BY tie military. This re-
commendation is approved by the Secretary
of War. Ho tH- q
fs. Aeber's Law. g..
Instructions were prepared in 1868, by
Francis Leiber, LII. D., revised by a
board of officers, of which Gen. E. A.
Hitchcock was President, and after approval
by the President of the United States we're
published r the government Of the armies
of the United States in the field. Section
13 of these instructions is as follows:
aMilitary jurisdiction is of two kinds !:
First, that which is conferred and defined
by statute; second, that which is derived
from the common law of war. Military
offences under statute must be tried
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 or tie local laws Of each particular
country. In the armies of the United
States the first is exercised by courts mar
tials, while cases which 10 not come within
the rules and articles Of the jurisdiction con-
ferred by statute on court msrtials, are
tried by the military" ...-...
An the authorities which I have been
able to examine upon this subject harmon
ize with these instructions. According to
The laws of war there is DotbiDg more sa-
cred than flag Of truce dispatch ed in good
faith, and there can be [no1 greater act of
per6dy and treachery tnsn the assassina-
tion of its bearers after they have been &C
knowledged and received by those to whom
thev present il. Therefore it is not punish
aole under the rules and articles IF war,
and If punishable at all, must be from the
powers derived from the usages of war. Bad
faith is breaking of his parole by pris0 ner.
Precedents of the Mexican War.
When the United States were at war
with Mexico several officers of the Mexican
army were tried by military commission
composed of officess of the United States
and convicted and sentenced to G shot
and executed for breaking their parole.
Numerous trials of a similar kind took
place during the war cf the rebellion, but
there sreeno statutory provisions whatever
upon the subject, and the whole power of
the military authorities in such cases is de-
rived from the usages OF war.
Poor wirtz-Mrs. Surratt
On The 23d of August, 1865, military COM
mission was appointed and assembled in
the city of Washington for the trial Of
Henry WiriZ, who plead among other
thing that the military commissions had no
jurisdiction over either his person or over
the subject matter of the charges and speci-
fications, being tribunal unauthorized by
statute, military law, marti law or well
established usage. But this plea was over
ruled and he was convicted upon several
charges, one of which was murder in VIOLA
ton of the laws aud customs of war. Af-
ter sentence be vas hung for his crimes.
ALI the proceedings in this case de.
rived their authority and validity from the
common law of war. Certain persons, it
will be remembered, were tried and con
victed in the same way for the assassiDa-
ton of President Lincoln.
Speeds Law.
Attorney General Speed in the discussion
of this subject Opinions, vol. 2, page 297)
says: "INe 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 Con-
gress may define and punish offenses against
those laws, but il default of Congress de-
fining those laws and prescribing punish
ment for their extraction end the mo,ie of
proceeding to ascertain whether sn offence
has been committed, and the punishment
to be inflicted, the army must be governed
by the laws and usages of war as under
stood and practiced by the civilized nations
of the world"
Again: 'If prisoner be aregular unof-
Tending soldier of the opposite party to the
war he should be treated with sllthe cour-
tesy and kindness consistent with safe Gus
tody. Ifhe has offended against the laws
of war, he should nave such trial and pun
ishment as the laws of war require. A spy
though prisoner Of war may be tried. con.
demned and execu ed by military tribunal,
without a breach of the constitution. a
bushwacker, jSyhacker, bandit of war,
rebel, or assassin, being public [enemy,
m2y1 be tried, condemned and executed as
an offender against the law of war. The
Law of nations which is the result of the ex-
perienc, and wisdom of ages has decided
that jsyhackers, bandits, etc, are offen-
ders against the laws of nature aud of war,
and as such are amsnable to the military
Our constitution has made these laws part
OF tte law of the land" see also Vattel, $50;
Wheatcn's international Law 406; Wolsey's
international law 220; Holleck's interna-
tional law 400. tFr.se
Supreme Court Decision Reviewed.
Mulligan's case, Wallace AZ, holds un.
der circumstance therein stated, mil tary