mend that Captain Jack, Schonchin, and the others who were present at the peace council when General Cauby and the Rev. Mr. Thomas were murdered, be tried by a general court-martial as violators of military law; that such of the other prisoners as are indicted for murder by the civil courts of Oregon and California be surrendered to the sheriffs of the respective counties on the proper requisition of the governors of said States; and, finally, that the rest of these Indians be transported east, and be distributed among a tribe easily guarded, say the Winnebagos of Lake Superior.

Thus the tribe of Modocs would disappear, and the example would be salutary in dealing with other Indians similarly disposed and similarly situated.

With great respect, your obedient servant,

These papers seem of sufficient importance to be forwarded without delay to the Secretary of War.

Respectfully,

E. D. TOWNSEND.

Respectfully referred to the President for orders, with General Sherman's recommendations as to disposition of Modocs approved.

WEST POINT, N. Y., June 4, 1873.

WM. W. BELKNAP,
Secretary of War.

[Inclosures.]

[Telegram received at Headquarters Army of the United States, Washington, D. C., June 2, 1873, from San Francisco, Cal., 2d.]

Gen. W. T. SHERMAN :

Colonel Davis reports, June first, Modoc scouts sent out Tuesday, twenty-seventh May, from Tule Lake, reported to him at Applegate's evening twenty-eighth, having found Jack and band encamped on Willow Creek at crossing emigrant-road, fourteen miles east of Applegate's; Hasbrouck's and Jackson's squadrons, under Major Green, immediately in pursuit, came upon them evening twenty-ninth, pursued them till evening thirtieth, when fourteen warriors, ten women, and nine children were captured, after slight skirmish, among them Schonsin and Scarfaced Charley. Jack, with three warriors, escaped in one direction, remaining nine escaped in different directions, leaving twelve men not captured. He will push them lively until caught; hopes to close the war in a few days and start the troops to other points.

J. M. SCHOFIELD,
Major-General.

[Telegram received at Headquarters Army of the United States, Washington, D. C., June 3, 1873, from San Francisco, Cal., 2d.]

Subsequent dispatch from Davis, dated Applegate's, June first, announces capture of Jack and two warriors and families. He expects the few others to come in soon, and considers the war terminated.

Gen. W. T. SHERMAN, Washington, D. C.

J. M. SCHOFIELD,
Major-General.

[Telegram.]

HEADQUARTERS ARMY OF THE UNITED STATES,

Washington, D. C., June 3, 1873. Your two dispatches of June 2, announcing the capture of the Modocs, Captain Jack included, are received. I will submit them to the War Office for reference to the highest authority, with a view to what disposition is to be made of the prisoners, according to law and justice. Some should be tried by court martial and shot; others be delivered over to civil authorities, and the balance dispersed so that the name of Modoc should cease. If any promises have been made any of them notify me, and meantime distribute the troops employed according to your better judgment; only be certain that all prisoners are held in military custody till final orders are received. Also assure General Davis and the troops that their labors and patience are fully appre ciated at headquarters.

Gen. J. M. SCHOFIELD,

Commanding Division, San Francisco, Cal.

W. T. SHERMAN,

General.

[Telegram.]

SAN FRANCISCO, June 5, 1873. Have directed General Davis to hold Modocs where they are till orders are received for their disposition, and report any promises made to or special treatment deserved by any. I think those guilty of the murder of General Canby and the commissioners and Lieutenant Sherwood should be tried by a military commission; those who murdered citizens on Lost River turned over to the civil authorities of Oregon for trial, and the other men to be imprisoned at Aleatras.

The women and children should be placed on some reservation in charge of the Indian Bureau. But I shall be glad to have the orders of the Government on the subject.

Gen. W. T. SHERMAN.

J. M. SCHOFIELD,

Major-General

[Telegram.]

WAR DEPARTMENT, ADJUTANT GENERAL'S OFFICE,

Washington, June 5, 1873.

The Secretary of War directs me to express the President's and his own high appreciation of your success, and of the labors of your officers and men in the Modoc campaign.

Col. JEFFN. C. DAVIS,

E. D. TOWNSEND,
Adjutant-General.

U. S. Army, Applegate's Ranch, via Yreka, California.

[Telegram.]

WEST POINT, June 5, 1873.

Inform the President immediately that I have received the following telegram from governor of Oregon:

SALEM, June 4, 1873.

As to the Modoc outlaws, now in custody of the United States military authorities, I most respectfully request that those now standing indicted in the circuit court of Jackson County, Oregon, for the crime of murder, who are not amenable to military execution, be delivered to the civil authorities of this State for trial and punishment. If they have a legal defense, based either upon amnesty or upon denial of guilt, let the defense be pleaded before the proper tribunal.

S. F. GROVER,
Governor of Oregon.

The following is just received from General Davis, dated Tule Lake, June 5:

Your dispatch and General Sherman's, concerning Indian prisoners, is just received · The [they] are all here under a safe guard; only a few unimportants now out; shall keep them as directed, and await your instructions. I had already made arrangements to execute eight or ten of the ringleaders; scaffold and ropes were prepared. I was engaged in determining the exact list, with a view to executing them at sunset to-morrow, when your dispatch was handed me. I have no doubt of the propriety and the necessity of executing them on the spot at once. I had no doubt of my authority, as department commander in the field, to thus execute a band of outlaws, robbers, and murderers like these, under the circumstances. Your dispatch indicates a long delay of the cases of these red devils, which I regret. Delay will destroy the moral effect which their prompt execution would have had upon other tribes, as also the inspiring effect upon the troops. Hooker Jim, Shacknasty Jim, Steamboat Frank, and Bogus Charley, soon after their capture, feeling, I suppose, the halter draw, offered to do mne important service. I accepted their proposition without any promise of reward other than that implied in the fact of accepting their services. Their daring exploits and usefulness in capturing Jack has won the admiration of all. Without their services We might not have succeeded yet in capturing Jack and his band. It was my intention to exempt them from the death-penalty, at least. Honor on my part requires me to urge their exemption to this extent, although two of them, Hooker Jim and Frank, have been among the worst of the band.

J. M SCHOFIELD,
Major-General.

Official copy respectfully submitted to the Secretary of War for his information. It is to be regretted that General Davis was interrupted in his proposed dealing with the Modoc criminals, but the dispatch having been shown to the Attorney General, he thinks that no action should be taken until he has furnished his opinion on the subject of their final disposition to the President.

SIR: I have the honor to acknowledge the receipt from you of ser eral papers relative to the Modoc Indians now in custody of the United States Army, with a request for my opinion as to the authority to try certain of the prisoners by a military tribunal.

The main facts out of which the question arises are these:

In 1864 the United States made a treaty with these Indians by the terms of which they were to go, and remain, upon a reservation in the State of Oregon. Late last fall, the Indians being away from their re servation, a military detachment was sent to procure their return. Find ing them unwilling to go peaceably, the officer indicated his determination to use compulsion, in consequence of which a conflict ensued be tween the United States troops and the Indians. Soon after several peaceable citizens and their families in the vicinity were murdered by Indians of this band. They then intrenched themselves in the lava-beds in the neighborhood. Fighting ensued, and one or more severe battles, in which persons on both sides were wounded and killed, and the United States troops repulsed.

Pending hostilities negotiations were opened for peace, and on the 13th of April last, General Canby, Rev. Mr. Thomas, and Mr. Meachem, at a point between the opposing forces, and in pursuance of a mutual agreement to that end, met Captain Jack, the leader of the Indians with some of his chief warriors, to discuss the terms of a treaty, and while so engaged, General Canby and Mr. Thomas were treacherously assassinated, and Mr. Meacham severely wounded by the Indians present upon that occasion. Battles followed, and Captain Jack and all or mos of his tribe have been captured, and are now in the hands of the mi tary authorities.

General Sherman, in a communication to the Secretary of War, dated the 3d instant, recommends that such of these Indians as have violated military law be tried by a military tribunal. This recommendation is approved by the Secretary of War.

"Instructions" were prepared in 1863, by Francis Lieber, LL. D., revised by a board of officers of which General E. A. Hitchcock was president, and, after approval by the President of the United States were published for the government of Armies of the United States ia the field. Section 13 of these "Instructions" is as follows:

Military 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 of fenses, under the statute law, must be tried in the manner therein directed, but nijtary offenses, 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 upon the local laws of each particular country.

In the Armies of the United States the first is exercised by courts-martial, while cases which do not come within the "Rules and Articles of War," or the jurisdiction conferred by statute on courts-martial, are tried by military commissions. All the authorities which I have been able to examine upon this subject harmonize 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 perfidy and treachery than the assassination of its bearers after they have been acknowledged 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 punishable under the "Rules and Articles of War," and if punishable at all, it must be through a power derived from the usages of war. Kindred to the act in question in bad faith is the breaking of his parole by a paroled prisoner. While the United States were at war with Mexico, several officers of the Mexican army were tried by a military commission composed of officers of the United States Army, convicted and sentenced to be shot and executed for breaking their parole. Numerous trials of a similar nature took place during the war of the rebellion. But there are no statutory provisions whatever upon the subject, and the whole power of the military authorities in such cases is derived from the usages of war.

On the 23d of August, 1865, a military commission, duly appointed, assembled in the city of Washington for the trial of Henry Wirz, who pleaded, among other things, that the military commission had no jurisdiction over either his person or over the subject-matter of the charges and specifications, being a tribunal unauthorized by either statute, military law, martial law, or well-established usage. But this plea was overruled and he was convicted upon several charges, one of which was "murder in violation of the laws and customs of war," and, after sentence, he was hung for his crimes. All the proceedings in this case derive their authority and validity from the common law of war. Certain persons, it will be remembered, were tried and convicted in the same way for the assassination of President Lincoln.

Attorney-General Speed, in discussing this subject, (Opinions, vol. 11, 297,) says:

We have seen that when war comes the laws and usages of war come also, and that during the war they are a part of the laws of the land. Under the Constitution, Congress may define and punish offenses against those laws, but in default of Congress defining those laws and prescribing a punishment for their infraction, and the mode of proceeding to ascertain whether an offense has been committed and what punishment is to be inflicted, the Army must be governed by the laws and usages of war as understood and practiced by the civilized nations of the world.

Again:

If the prisoner be a regular unoffending soldier of the opposing party to the war, he should be treated with all the courtesy and kindness consistent with his safe custody; if he has offended against the laws of war, he should have such trial and be punished as the laws of war require. A spy, though a prisoner of war, may be tried, condemned, and executed by a military tribunal without a breach of the Constitution. A bushwhacker, a jayhawker, a bandit, a war rebel, an assassin, being public enemies, may be tried, condemned, and executed as offenders against the laws of war.

* * *

The law of nations, which is the result of the experience and wisdom of ages, has decided that jayhawkers, banditti, &c., are offenders against the laws of nature and of war, and as such amenable to the military. Our Constitution has made those laws a part of the law of the land.

See also Vattel, 359; Wheaton's Int. Law, 406; Woolsey's Int. Law, 220; Halleck's Int. Law, 400.

Milligan's case (4 Wallace, p. 2) holds, under the circumstances therein