Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1873-06-13
HEADQUARTERS.
THE CAPTURED MODOCS,
GENERALS OPIN
ION.

WASHINGTON, June might. The
following is the opinion of the Attor-
ney-G General, on the question submit
ted by the War Department., relative
to the Modocs
DEPARTMENT OF JUSTICE,
June 7, 1873.
To the President
SIR I have the honor to acknoWl-
edge the receipt from you OF several
papers relative to the Modoc Indians
now in custody of the United States
army, with request for my opinion
as to the authority to try certain of the
prisoners by Court-martial tribunal.
The main facts, out of which the Ques-
ton arises, are these: In 1864 the United
States made a treaty with these In
dams, by the terms of which they were
to 90 and remain upon reservation
in the State of Oregon. Late last Fall
the Indians being away from their res
walton, military detachment was
sent to procure their return, but find
ing them unwilling to go peacefully,
the officer indicated his determination
to use compulsion, in consequence of
which, a conflict ensued between the
United States troops and the Indians.
Soon after several peaceahle citizens,
and their families in the vicinity, were
murdered by Indians belonging to this
band. They then entrenehed them
selves in the lava beds in the neigh
borhood. Fighting ensued, and one
or more severe btttles, in which
persons on both sides were wounded
and killed and the United States troops
repuJsed. Pending the hostilities ne
gotiati2ns were opened for peace, and
on the 18th 81 April last Gen. Candy,
Rev. Mr.. Thon.as aud Mr.. Meacham,
at point between the opposing forces,
and in pursuance of a mutual agree
ment to that end, met Captain Jack,
the leader of the Indians, with some
ST his chief warriors, to discuss the
terms at treaty, and while SO engaged
General Candy and Aif. THONGS were
treacherous1y assassinatea and Mr..
Meacham severely wounded by the
Indians present upon that Occa
sion. Battles followed, and Captain
Jack and all or most of his tribe have
been captured and are now in the
hands of the military authorities. Gen
Sherman, in q communication to the
Secretary of War, dated Sd instant
aeec mmends that such of these Indians
as have violated the military law be
tried by q military tribunal. This
recommendation is APPROVED by The
Secretary of War.
Instructions were prepared in 1856:
by Francis Leiber, &. /. D., revised
by board of officers, Of which Gen
Hitchcock Was President, and after
approval by the President of the United
States, were published for the govern
ment of the armies of the United States
in the field. Section - of these in
str4ctions is as follows Military jul
risdictio4 IL Of two kinds. LIST. That
which is conferrea .s2,:4 defined by the
statute. ID That wficlIis d fi-ed from
the COMMON law Of war. The u.litar
offense of the statute law must be
tried in the manner therein di
rected hnt military offences
which do not come within the
statute, must be tried and pun
ishad under the common law of war
The cilata..ter Of the courts which ex,
ercise these surasaieliaas depends
upon the local laws of each particular
country. In the armies of the United
States the Arst is exercised by court
martial, while cases which do not
come within the rules Of war or the
jurisdiction conferred by the statute
on court martials, are tried by military
commissions.
All the authorities which 1 have
been able to examine upon the subject
harmonize with these instructions.
According to the laws of war there is
nothing in4fe saared than a flag OF
truce, dispatched IL go.4 faith, and
there can be no greater act of perfidy
and treaciieiy than the assassination
of its bearers after they have been ac-
knowledged and received by those to
whom they are sent No statute of
the United States makes this act a
crime, and therefore it is not punish
able under the rules and articles of
war. and if punishable all it must
be through power derived from the
usage Of W.T. Kindred to the act in
question, in bad faith, is tn breaking
of bis parole by paroled prisoner
While tile United States were at war
with Mexico, several offiss"s of the
Mexican al my were tried by a military
court compose ed of officers of the L. S.
army, convicted and sentenced to be
shot and executed for breaking their
parole. Numerous trials of q similar
nature took place during the war of
the rebellion, but there are no sta tu-
tory provisions wliateterupout The sub
ject, and the whole power of the mill
tary authorities ia SUCH cases is de-
rived from the usages of war. On the
23d of August, 1865, a military COM
mission, duly appointed, assembled in
the city of Washington, for the trial of
Henry Wirz, who pleaded among otner
things, that the military commission
had no jurisdiction over either his
person OF Oyer the subject matter of
the charges and SPECIFICATIONS, being a
tribunal unauthorized Py either State,
law, martial law, or any we'll
usages. But this plea was
overruIed and he was convicted upon
several charges, one of which was mur-
der in violation of the law and customs
Of war, and after sentence he was hung
for his LINES. All the proceedings in
this case derive tils..r authority and va
lidity from the common law. Of war;
Certain persons, it will be remem-
berel, we're tried and convicted in the
dent Lincoln. Attorney General Speed
~ discussing this subject said ''We
nave ses1 that when war comes the
avs and usage Hf war come also,
md that during the war they arg part
If the laws of the land. Under the Con
'titutlon Congress may define and
punish offenders against these laws,
put in default of Congress defining
hose laws and prescribing a punish
nent for their inffaotion, and the mode
If proceeding to ascertain whether an
fence has been committed and what
i to be inflicted, the
Irmy must be gosetned by the laws
md usages of war As fHnderstesd and !
by the civilized nations of /
he world. Again, if the prisoner be
regular unoffending soldier of the
opposite party TO the war, he should
,e treated with all the courtesy and
consistent with his safe Gus
0dy. If he has offended against the
avs OF was hs should have such trial
nd be punished as tpe ifg Of gar re-
uires. A spy, though q pfis6per Of |