The Nashville daily union. [volume] (Nashville, Tenn.) 1862-1866, 1865-11-14
az CAsE oF pIcK lIecANN.

ION II me oultc4 1laAt- Di1-iict lolft ye
teraay morning
3 Ez.Rass ] r Mccaan
This case CONES up on the petition Of
r. McCana TO the United States Distris
4 Judge f5r the District Of Tennessee, for
a writ cfhabeas corpus 70 be directed to On
! n. D. Beardsn, who, il IS alleged, Illegal
dstains the petitioner in custody, aud De
Prives him Of his liberty. The petitione
2 states a'thst he was lately en- officer in ID
3 armies Of the so-ealssd Confederate Stale,
and az such surrendered and was reguiarl
J par5led, under the agreements ma1s. an
entered into, BY the authorities Of tn
X United States, aud The commanders Of tn
armies Of said Consoderacy-tha be there
after took and subscribed The oath pre-
. scrlbed ia the amnesty proclamation OF th'
President Of the United States. Of Nav -
l5g5-that be has fully end faithfully KEEP
said parole and oath, aud is entitled 70 Ell
the immunities and protection offered ana
extended by fhem-thst, IN direct and pal
pable violation Of said parole ana pardon
be has been arrested and confined in jail
IN Knox county, Tennessee, % answer foi
an set before State Courtl iully condoned
and pardoned by the national Govern
ment.' And proceeding 70 SET forth the
causes Of his arrest and detention, he states
the allegation against him 10 be, chat he
was q member OF a court martial before
which one A c. Haun was tried dur ng the
war Ht Knoxville, and whs vas subsequently
executed by the military authorities Of the
eO-called Confederate States, after the pro-
clamalion Of martial Law; and upon this
state Of facts an indictment vas found and
is now pending against HIM in the Circuit
! Court Of Knox county for murder"
He ales in his petition that the said
/ Eaun was arraigned and tried at Knoxville
ia the winter Of 1861, by a court martial
regularly ordered aad convened BY the mill
I tsry authorities Of the Confederate States,
then 90 war with the United 5taies, and
thea 10 full, complete and undissarbed &C.
eupancy and possession Of she whole Of that
division Of tbs State Of Tennessee wherein
I the trial occurred.
Ham, il IS stated, vac charged as g Sc
cret, active public enemy Of the % called
Confederate States, and Of the armies in
the occupation Of said country, being that
division o. the State known IS East peEnes-
see,) with b wing committed az act contra
~ g the laws OF war. he vas charged as
i s stated a the petition, with c0ntpiring
and attempting With others, secretly and
clandestinely, and in the night time, aud
not IN connecti0n with any organized OF
recognized body Of the troops Of the United
States, TO destroy the railroad from Chatta-
nooga TO Bristol-said road running and
lying wholly within the military lines Of
toe Confederate forces, and being used By
the armies Of the said Confedsrecy for She
daily transportation Of troops, munitions Of
war, supplies etc. It was also charged
against said Haun that he actually burned
and destroyed one Of the important bridges
upon ssid road, and shot and capiared d.
vers Confederate soldiers, guarding said
bridge, on the night Of the day Of No
yembcr, 1861. The petitioner states that
the Trial Of Haun occupied some eight days,
that he was allowed counsel Of hia own
choice to defend him, and that the whole
proceeding was conducted entirely IN accoT-
dance with the ialos, rHles and Hss9eS 81 lrar.
Tao petition then ayers ''thst the holding
Of him, under these-circumstances, BY State
authority, is direct nsgation, and setting
aside Hths amnesty ana pardon authorized
bv tho Gene 81 Government 10 induce ell
persons 20 lay iWn their arms, to return 10
their loyalty, and 20 restore the authority Of
the United States
Upon the foregoing state Of facts, the petit
toner prays that the writ Of habcaS corpus
may issue, to the end that justice may be
done him in the premises, and that ne be
released IRON his alleged illegal conf ement.
OF course upon this application, the state
ment Of facts sppesring on the face Of the
petition, which Is daily verified by the oath
OF the pstitione-, is 10 be taken and eonsid-
cred as true, and upon the facts 50 stated
must this hpplication be determined.
Il is apparent, from the facts stated in the
petition, that the FIRST question presented for
consideration is whether the petitioner IS
illegally detained in custody. This question
has been so ably, zealousiy and slaborstely
argued, that I feel constrained 20 express an
opinion upon il. Il IS insisted, on behalf Of
4
the authority Of the Government Of the
Uniied States was in fact q ciUii s0ar, and
that the persons engaged in il were ociiigsr-
eafs. and as such entitled 20 all the rights
appertaiuing 10 the laws Of war. And, IN
nsInuch Is The petitioner, as 3 member Of
she c0urt-martial regularly convened, by
order Of superiors, in conformity 70 the laws
and uaages Of war, and IS such member, IN
the regular discharge q his duty conturred
In the finding whicn resulted in the death
Of Hanu; i is argued that be Is no more
criminal and no more responsible for the act
than would be the Judge Of civil court,
whs. IN lie discba Re Of his duty, might
pronounce similar sentence againsi par
" found guilty by the verdict OF e jury,
And consequently, Il Is insisted that the pc
titioner cannot BE held personally responsi-
HE for his com plicity ia the action Of she
eourt-inartisl, aud that he oannot therefore
be held anlenabio 70 The laws % the state OF
Tennessee upon the Indictment pending
arainsi bin Tor murder IN the Circuit Court
OF Knox county.
u must be conceded, I think, that II the
rebellioa. as it has been almost Uniformly de-
nominaied By the authorities Of the United
States. became. and was in fact cirl iodf,
in the Just sense Of that terIus and being
such a war. that the parties on both sides
were bound TO observe the common laws OF
var: and il q court martial, organized Is the
one IN question IL stated 70 have been, be in
conformity 20 the laws and usages Of war,
f,r the trial Of persons circumstaneed as the
petition states that Hsun was, then am
unable to perceive how the conclusion Of
the counsel Of the Petitioner can be escaped.
But il is 90 be remembered that, IN order 70
have this effect, the court must be regularly
convened BY order Of the proper authority,
and otherwise conducted in conformity TO
the law and usages of war For II not so
ordered and conducted, the taking Of humsn
life bv the Judgment of such e tribunal could
not be justfsd.
Then we come TO the question, was the
late rebellion in ita Inception and progress
a aaere rebellion, or did il pass beyond those
boundaries which ordinar ly limit rebellion
and stain the proportions Of cipii aoar, snd
BY consequence entitle the parties engaged
il Is 10 al he rights Of belligerenis2
"a ciuig van" says Mr.. Natiel sis when
q party arises in q STATE which no longer
obeys che sovereign, and is sufficiently
strong % make head against him, o. when,
IN 3 republic, the nation IL divided into two
opposite factions, and both sides take up
arms. Usage applies the term eivl.war TO
every war between members Of the same
political society. IL i il between psrt Of
The citizens on one side, and the sovereign
and those who obey him on the other, it is
suficieui that the malcontents have some
reasrr 10 take up arms, IN order that the
disturbances should be called ciuii srEr and
not -sbeiiioR. The prince never fails to call
y,sbeis an his subjects who openly resist him:
but when the latter become sufficiently
strong % make head against him, TO compel
him v carry on war regularly against thems
he must he conte1 ted with the term ciuii
,-ar. Civil war breaks the bonds Of society
and the government Il gives risein a nation
10 two Independent parties, who scknoEl-
edre no common judge. The common laws
Of war are 10 civil Wars 70 BE- observed on
bofh aides. The same reasons that make
them obligatory between foreign States,
renders them more necessary 10 the unhap-
~ Circumstances where two exssP7ra;fd
parties are destroying their common eoun-
Try"
To any one 81 al AaAliliAl Win tAeal ltl
dents ii the past four years, i upon read
iur this Guo5stion he viii recall the num-
81. power and organization Of the persons
fed in hostile operations against our
Gsyerfiment. be viii be wiiiog toconcede
thst The recent conflict az arins between the
Opposing forces. although a. the beginning
a nav have been consequent upon acre
.,sssitser. vet ths; it soon eliminated int
.ii,ii lrdr.
awhen q part Of State lssys smother
modern writdr) takes up arms against the
Caverptaent. II &c is sufficiently strong 80
resist iss sctfon and 20 CONSTITUTES two parties
hi eousllr balanced forces, the exislencs Of
-s-l car Is theace3ofEard datermi1ed. II
ne conspirators sgainst the Government
tsre not the means cf assuming this posi-
Ion. thasr movement does no, pass beyond
a rebellioa. Ae true evil war breaks the
bands Of society, BIZ diriding i II tact into
tvs independent societies, i Is ior tbs con.
siderniion shat VIC treat ni j. IN inteTnationai
law. since each party forming - i were
separate usi Al. both should be regarded as
sab 81 10 he laws OF war. This sublecton
10 the lsN nf nations j. the mose necessary
in civii war, since these. By nourishing
more hairels aud rrsentlneRts than ioreign