What Is To Be Done With The Modocs

WASHisarojf, Juno ".- Tha following h thü daaieion of the Attorney General rlU--toth Modoc opti: 1):;)'AliLMKNT OF JUSTICE, ) WasHINOTOS, Juno 7, 1873. f Xö the President: SlR- t Uavr) thts honor la liéknowledge tho receipt from yon of íáverol papera relativa to thè ííodod indiana now in the eustoly of tüe Ürtited Status imny, with a requBst tor my opiniori, g to the authority to try oertain of the prïsonefs by rail rtary tnbaaafei The main faota out of ■which the quöstion avises ;iro these : In the United States made a treaty with these Indians, by the terms of wbioh thej' wcro to go riml reraaia upon thcir reiervation in the State of Oiegou. Ijate last fall, tho Indians beilij away from tbeir reservatioiii a military detachment was sent to procure thúr return. Finding tUein uu willing to go peafcöttbly, tho otfi.j.-ir indioated his deterulination to use oompulsioa, in consequenoe of whioh a contiict eniUtíd botween the United State troopa and Indians. Soon aftei several peaceable estilen and thuir families wero murdered by the Indians. Aftor this deed they intrenched in the lava buds in tho noighborhood. Fightiüg ensucd, and one or more'severo battles, in which SPveral persons on both uide wtüo wouuded and killed, and the United States troops repulsed. Negotia tions wero opened for peace, and on tüe 15th uf April last Gen. Canby, tho Eev. Mr. Thomas and Mr. Moachaiu, at a point between the opposing forces, nud in pureuance of a mutual agreemeiit to that oud, met CaptainJack, the leader of ths Indians, with souie of bis ehief warriors, to discuss the terms of a treaty, and whüo so engaged Gen Canby and Mr. Thomas vveiu treacherously murderod, and Mr. Meaohain sovoroly wounded by tho Indians present upon that occasion. Jt.vtUes followed, and Captain Jack and almost all of his tribe have boen captured and aro now in tho hands of tlió military ttuthorities. Gen. Sherman, in a ooramunioation to the Saoretary of War, daled the 'd inst., recouimends that such of these Indians as have violated military law be tried by u military tribunal. Tnis recommen'lation is upproved by the Secretary of War. Instruotious were prepared in 1863 by Francia Lí'i!fr, LL. 1) , revised bj' the board of offiuers of whioh Gen. E. A. Hitohcock was President, and after approval by tho President of the United States, were published for the Government of the armios of the United States in the üeld. Section 13 oí these ïnstructions is 08 foliows : ''Military jurisclictiun is of two kinds. First, tbat which is couferred and defiued by statute ; second, that which is derived from the eommon law of war. Military offtiuses uuder the siatute law must be tried in the niannar therein dcoided, but military offenses which do not come within the statute must be tried and punished uader the common law of war." The character of Üia coui-ts which exercise these jiuisdictions depends upon tho local luws ot' each particular country. In armies ol the United Status the flrst is exercised Ly courts martial, while cases which do not come within the rules and articles of jurisdiction conferred by the statuto on oourts-martial are tried by military commiasion. AU tho authovilies which I have been able to examine n this subject harmonizo with these inttructions. According to tho laws of war there is nothing nïore sooicd than a flag of truce dispatched in good iaitli, and there eau be lio greater aot ot perlidy and treachery than the assassination of ita bearers after they have been ttoknowledged and vecciveu by tliosc to wliom they are sent. No btatut'e of tho United States makes tiiis act a crime, and therefore it is not punishable under the rules and articles of war, and, if puniahable at al, iiiutt be through a p wer derived fruju the mages of war. Eandred to the act in question is bad faith in breaking his parol as a jiriaoner. When the United States was at war with Mexico several officers of the Mexican army were tried by a military coinmission composed of officers of the United States arrny, and convicted and sentenced to be shot and executtd for breakinjr tlieir parol. Numerous trials of a similar nature took place during thé War of tliti BfebellioB, but there are no Btatutory proviflioas whatever upon the Bubject, and the wholfi power of military nuthorities in sueh cases is derived froiu the usages of war. Ou the 23d of August, 1863, a military commission, duly appointed, assembled in the city of AVashington for the trial of Henry Wurz, who pleaded, among other things, that a military coramission had no jurisdiction over either his person or the subject matter of the charges aud epecificatione, being a tribunal unauthorized by eithor statute, military law, niartial law or well established usage. This plea was overruled, and he was couvicted upon several charges, ono of which was inurder in violation of the laws and customs of war, und, after sentence, he was hung for his crimes. All the proceedings in this case derived their authority and Talidity froni the conimon law of war. Oertain persons, it will be remembered, ■were tried and convicted in í'ue same way for the assjassination of President Lincoln. The Attorney General, in discussing this subject says : " Av e have seen that ■when war comes, tbe laws and usages of war come álso, and that during the war tbey are part of the laws of the land. Tinder the Conetitution, C'ongress may define nnd panif.ii uü'enses againgt thoKo lawn ur.d prescribe a puniahinent for their ini'raclicn. and modo of procceding to ascertain whether n offerae hns been comrnitü'd, and tliat }unishu;tnt. is to bo nflicted, the ariny must ba govc-rriïd by the lav.'s and usagps oi' war as understood and peaotioed by the civilizad uations of the world. Agnin, if lbo prisoner be a regular, unoffonding soldier of the Gppo site party, be shouJd bc treated withall oourtesy and kindness consistent with his safe oustody. If he lias oftVaded against the laws of war, he should havo Buch trial and punishmeufc as the laws of vi ar require. A spy, though a prisoner of war, ïuay be coiidtmiud and exeouted Vy a njilitary tribunal without a violation of the Constitution. A bushwhiicker, jayhawker, bandit of tvar or rebel asnassin, boing public euemiea, tnay be triocl, conderuned and executed as offenderg againet the luws of war. Thejlaw of nations, whiofa is fcfafl resul t of the experience and wisdom of ngos, has decided 4hat }íiyhawkers, bandits, etc., are offenders against the laws. of nations and of war, nnd as such amenable to the military. Our Constitution hls made theso laws part of the laws of the land." (See aleo Vattel, 359 ; Wlioatou's Internationftl Law, 40(i ; Woolsey's International 'Jjftw, 390 ! Halleck' International Law, 400 ; Milligan's case.) Fourth Wallace, p. 02, holds, under the circum8tances herein 'stated, a military corauiission to be illogal, but the facts there ure pntirely different from those nader oonsideration. Milligan was 'a resident of a State not in rebellion. The courts were open and unobstructed for Lis prosecution. He was neither a prisoner of war nor attached ia any way to the military or naval service of the Ubited States. According to the instructions horetoforo rtferred to, no civil tribunal has jurisdiction in tho cases disclosed by tho papers before me. Section 40 and -il thereof aro as folio ws : " There ecists no law or body of authoritative rules of action between hostile armies, except that brancli of the law of nature and nationa whieh is called the Law and TTsago of War on Land." Seotion 41 gy8 " at[ municipal law of the ground on whieh armies stand, or of the countrios to which they belóng, is silent and of no effoct betweiüi aimies in tho field." Manifostly thf-so rules are to a groat extent, if not ftHowther, correct, for it cannot bn pr.:renrld that tho United States soldior 's gwilty of murder if he killed a public cneiny in battle, which rroii be the case if the municipal law was in forco and appücable to an act ooinmitted uuder such cireumstancos. A il i.iws and customs of civilizud wurfiire may not bu applicablu to an armed conflict with [ndian tribwi tepon our. western froutier, bul the öiröunistanioes attending the of Canby and Thomas are as inuofa a violation of savage as of civilizad warfare, and tho Indiana ctin oorned in it fully nndersteod the bttsenosa and treacllery of' tliis ac:t. It is ditficult to define exaútly tbo relsitions of Indi.'in tribes in tko United ítatea, but as tluy bave lii'i-n reoagnised is independent cotümunities fot treaty-making purposes, and ai they frequently oarried on organized and protrsctad wurs, Ihey ray properly, as t seems to më, be bold subject to tfaose inlea of warfate which makes a negotiation for pt;;ico aft er bostilities possible, and which innkes perfldy like tlmt in quostion punishablo by militury authority. Doubtless, the war with the Modócs is practically ended, unless soino of thom should escape and roiiew bostilities, but it is tho right of tho United Htates, as there is no agreement i'or peace, to dotermine for themdilves whether or not anything more ought to bo done i'or the protection of the country or punishmerit of the crimes growing out of the war. Section 59 of said instructions is as follows : "A irisoner of war reinaina answorable for his crimo, committed Ogain8t the captor'n army or people, committed before he was capturod, and for wliich ho has not been iunishcd by his own authorities." iiy conclusión, therfore, is that a military oommissión may be appointed to try such of the Modoc Ihdians, now in oustody. as ure charged with offenges ag'ainst the reoognized -lavvs of war, and that if upon any such trial auy are fouud guilty, they may be gubjeoted to such puuishmefit as thoso laws require pr justify. Verv resiiectt'ullv vour obfidient