The Indianapolis daily herald. [volume] (Indianapolis, Ind.) 1865-1868, 1865-11-18


Mccain surrendered. A. Confederate soldier.
20 body o. the United States force.. and was
paroled, etc. subsequently,. a state Court Of
Tennessee indicted MCCA ANY for the murder q
HkUS, in causing him 20 be executed. under
the sentence II a Confederate court martial.
the Tennessee court regarding such court mar
tisl a. simply mob, and it, proceedings en-
titled 70 no respect. MCCAIN. being thrown
into prison on the charge Of murder. applied to
Judge TRIGG 81 the United states Court for
writ of habeas corpus, alleging that the Confed-
eracy was treated as a belligerenf, and it, acts
and the proceedings q it, officers. were 20 e re-
spccted by the international law II war. a.
de facfo valid, and protection 10 those per-
forming them. The ease Is important. a. hay-
ing a bearing on that Of JEFF. DAVE. We
extract from the opinion Of Judge TKIGG:
II i apparent, from the facts stated In the
petition, that the first question presented for
! consideration j. whether the petitioner j. lie
| gdfiy detained In custody. This question has
been 80 ably, zealously and elaborstely argued.
I that feel constrained 10 express an opinion
/ upon II. II j. insisted, ON behalf Of the petit
TONER, that the late rebellion against the au-
| thority q the Government Of the United states
was In fact n cfrH ,rdr. and that the persons
/ engaged In IL were Jeiiigerenfs, and "a such
entitled To all the rights appertaining 10 the
laws o. war. And, inasmuch A. the petitioner,
| A. a member Of the cOurt-martial regularly con-
| yened. by order Of his superiors. I'm conformity
/ 20 the laws and usagcs Of war. and a. such
member, in the regular discharge Of his duty.
| concurrcd In the finding which resulted IN the
death 0f Ham: IL j. argued that he i no more
/ criminal and no more responsible for the act
| than would be the judge Of "A civil court. who.
IN the discharge OF his duty, might pronounce
similar sentence against party found guilty
! by the verdict Of jury. And consequently,
II i insisted that the petitioner cannot be- held
personally responsible for his completely in
the action Of the court-martial. and that he
cannot therefore be held amcnablc 90 the laws
| Of the state Of Tennessee upon the indictment
| pending against him for murder in the Circuit
Court Of Knox county.
IL must be conceded. think. that IL the re-
beffiOR. n " has been almost uniformly de-
nominated by the authorities Of the United
states, became, and was In fact "A ciru icdr, in
the just sense Of that term. and being such
war, that the parties ON both sides were bound
10 observe the common laws Of war: and ii a
court martial, organized as the one in question
= stated 10 have been, be in conformity 20 the
laws and usages Of war, for the trail Of persons
circumstanced a. the petition states that Haun
was, then am unable tOperceiye how the con-
clusiOn Of the counsel Of the petitioner can be
escaped. But IL j. 10 be remembered that. i'm or
der 10 have this effect, the court must be regu-
larly convened 10y order Of the proper authori-
y. and otherwise conducted i'm conformity 10
the law and usages Of war. For il not 80 Or
dered and conducted, the taking Of human life
by The Judgment Of such tribunal could not
be justified.
Then we come to the question. was the late
rebellion in it, inception and progress mere
rebellion, or did IL pass beyond those bounda-
ries which ordinarily limit rebellion and at
tain the proportions Of civil war, and by con-
sequence entitle the parties engaged IN il 10 all
the rights OF belligerentsg
a civil war;" says Mr.. Vattel, sis when
party arises in a State which no longer Obeys
the sovereign. and il sufficiently strong TO
make head against him. or when, in republic
the nation l. divided into twOoppOste factions,
and both sides take up arms Usage applies
the term civil war 10 every war between men,
beers ofthe same political society. IL is between
part OF the citizens ON one side, and the SOW
ereign and those who obey him the other;
lt l. sufficient that the indictments have some
reason TO take up arms, in order that the dis
turbance should be called civil war. and not re-
belliOn. The prince never fails TO call rebels
all his subjects who openly resist him; but
when the latter become sufficiently strong 10
make head against HIM he must be contented
| with the term civil war. Civil war breaks the
bonds Of society and the Government, il gives
rise In n nation 10 two independent parties,
! who acknowledge no common Judge. The
| common laws Of war are, in civil wars, 10 be
! observed on both sides. The same reasons that
| make them obligatory between foreign States
| renders them more necessary In all the unhap-
| py circumstances where two exasperated par
To any one ut all familiar with the incidents
| Of the past four years. If upon reading this
quotation he will recall the number, power
and organization Of the persons engaged in
| hostile operations against our Government, he
will be willing 10 concede that the recent con-
diet Of arms between the opposing forces, al
| though nj the beginning IL may have been con-
| sequent upon mere rebellion, yet that il soon
| eliminated INTO a civil war
| |When "A part of state says another mod
| rrn writer takes up arms against the Govern
nent, if il is sufficiently strong 10 resist its
iction and 10 constitute two parties Of two
| equally balanced forces, the existence of civil
var is thenceforward determined. If the con-
,pirators against the Government have not the
means Of assuming this position, their move
ment does not pass beyond rebellion. As true
ivil war breaks the bonds Of society. by di-
yiding II in fact into two independent socie-
ties, ii Is for this consideration that treat Of
Il in international law, since each party form
ng as II were "a separate nation. both should
De regarded subject TO the laws of war.
| This subsection 10 the law of nations j. the
more necessary i'm civil war. since these. by
ieuTishing more hatreds and resentments than
| Oreign wars, require more the corrective of
| The law Of nations in order TO moderate their
ravages. See Note 10 VhedtOR's InterRG-
tiOHdl Lac, 523.
But il would seem 20 be unnecessary 10
iuote other authorities 10 establish the true
haracter of the great civil commotion through
which our country has just passed, when we
nave a decision of the supreme Court Of the
| United States which establishes and defines its
| rue character. In the cases recently decided
| ~ the Supreme Court, and which are known
| - the "priZe" eases reported IN the second
| .olume Of Blacks Reports, the Court, n il
| seems 10 me. has settled this question, and no
| United States Court, or judge. nor indeed can
any state Court disregard that decision. Mr..
| Justice Gricr, in delivering the opinion Of the
| oOurt in those cases, says: " The parties bel
| tigerent i'm public wa are independent ma
-
| that both parties should be acknowledged n
| independent nations or sovereign States. \
| war may exist where one Of the belligerents
| claims sovereign rights a. against the other.
| Instruction against Government may or
may not eliminate in an organized rebellion.
| out civil war always begins by instruction
| against the lawful authority Of the Govern
| ment \ civil war i never solemnly declared;
| Il becomes such by its accidents-the number,
| power and organization Of the persons who orr
| ginate and carry il on. When the party in re-
| belliOn occupy and hold in a hostile manner a
certain portion Of territory; have cast of their
| allegiance; have organized armies, have COM
menccd hOStiities against their former sOVer-
| ign. the world acknowledges them u bel
| iigerents. and the contest war. They claim
| 10 De in arms 10 establish their liberty and in
dependence. while the sovereign party treats
them as belligercnts and rebels who owe allie
glance, and who should be punished with death
for their treason.
| The laws Of war. a. established among ma
tons. have their foundation in reason. and all
| tend % mitigate the crueltes and misery pro-
| luced by the scourge Of war. Hence the
| parties 10 a civil war usually concede 10 each
| lther belligeTent rights. They exchange prs-
lners. and adopt the other courtesies and rules
| ommon 10 public OF national wars" The
| learned Judge then quotes from Nattel sub
,tantially the same paragraph given in the pre-
! 'eding part of this opinion. and then proceeds
| thus: =. A. civil war l. never publicly pro-
laimed. IS H0mine, against insurgents, IT. ac-
/ tual existence l. fact in our domestic history
| which the court j. bound 10 notice and 10
| snow The true test Of its existence, a. found
! IN the writings Of the SageS Of the common
law, may be thus summarily stated: q" When
| the regular course Of justice l. interrupted by
| revolt. rebellion. or instruction, 80 that the
courts Of justice cannot be kept open. civil war
/ eXists. and hostilities may be prosecuted on
| The same footing II if those opposing the Gov
rnment were foreign enemies invading the
/ land"
Again he SAYS: " This greatest Of civil wars