The Nashville daily union. [volume] (Nashville, Tenn.) 1862-1866, 1865-11-05
CAsE OF pICK MccANN.
of Hon. Jordan stokes.
The following is the argument Of Hon.
Iordan s. -kes. in che MCCAIN Gaze;

M
70 him a matter Of life and death, to saJ
nothing Of its vital importance 70 other.
similarly pardoned, who viii be liable L
the same process Of law if his petition shall
not be granted. The faith and the honor o.
the Cover ment are alike involved, and
/ both viii be Vi lated in the OLtinuance oil
the prosecution, shiie it Is Z matter Of vital
I Importance 70 d cCsnn alone. IONS dering
the position I have occupied IN the late
struggle, and looking 10 the known loyalty
| Of me section in which this proceeding
originates, it is to me cause OF profound re-
| grst that any have thought q state prosecu-
ton necessary, although in violation Of the
| plsinest principle Of law applicable for II
| NAV iniuriousIy affect others hereafter.
But the case is made up here, and must be
| decided Ny client has been arrested and
| Imprisoned, and he s--:ies here for relief
He gives plainly the fscts Of his case. BE
was regularly commissioned ohcer. The
CJnfederate States wee at war with The
United STATES. Under orders be was com
manded to try q case at Knoxville, thea IN
| possession of the Confederate forces. he is
among the pardoned, though not included
among those excepted by the proclamation,
| and he nov claims the benefits Of that am
nesty. He was guilty OF no Ofense for
/ which he would be punished IN any State
| court. Looking 10 the action OF the court
martial OF which he Wss q member, # they
we're setting irresp0naIbly, without an-
| ia srity, It might be assumed that those
| members. il death resulted from their SEN
| tencs, might be liaDle criminally. But
/ looking 10 the authority which organized
and convened the curt, no such prosecution
| could legally follow. What was the stalus
Of the Confederate States Were they not
marked out as dc fact0 government and
was it not authorized by the laws Of nations
| 10 organize the court ~ question: The Pc
culiar conjunction OF our form Of govern
lnent effects these cases in such way tnat
no one has pretended 10 decide. But apply
ing 10 general rules, what was the statEs-
tho position Of the power organizing the
court, according to the international Jaw
Six States had proposed to leave the Union,
and had set up or themselves; had passed
laws, raised money, organized armies, COM
missloned officers, had Iuaugurated modes Of
operation and possessed all the elements, all
the officials, all the principles Of a regular
government. II was no mass Of men re-
sisting law like q mob, but a government de
fact0. Tennessee joined the association Of
States. How far the mass Of the people
South wens into the movement, needs no
discussion here, for il IS a matter Of the
past. II is, however, matter Of fact, which
40 one will contradict, lhat, for four years,
the Confederacy exercised all the functions
Of a government, laid down taxes, passed
laws and enforced obedience 10 its authority,
within the sphere OF its limits, in spite OF
al the efforts VI the United states. II was
meanwhile wsging q civil war, as an ac-
knowledged belligersnt, and claiming TO be
an Independent Lower. 1t was acknowl-
edged b. every officer Of the United States
10 be civil war Of the greatest magnitude.
The FIRST act OF President Lincoln IN closing
81.
position Of pending civIl war. Eleven
states combined in eTecHng new form Of
government, and in exercising claimed
rights as States, aud binding themselves 70
support tier action with blood and treasure.
Tue following extract from the decision OF
Justice GrIer, OF the eupreme Court ia The
case Of the Amy Warwick and toe HIawstha,
supports this view, He says: "fhis great
est " civil wars was not gradually devsl- |
oped by popular cJmmOtion, tumultuous |
assemblies, or local unorgsn. Eed Iusurree- |
tIons. However long may have been its |
previous conception, il new, rtheless sprung |
10th suddenly ON the parent brain Of |
Miaerva in tue fu panOP y Of war. TIE |
President was bound TO meet the shape IL
presented itself, without waiting Tor Con- 1
gress TO bsptize it with q name, and NJ
change given to it by him or them could /
change tue fact"
Are there no acts on the part Of the United /
States recognizing de faeto government
LoJk 10 the recognition, in the case Of the
priysteers, wnen the Court decided that the
title OF purchaser Of prize was good, if
made in accordance with the decision Of /
the Court, and done during tho contest
Look TO the provisions Of the cartel for the
exchange Of prisoners, not only recognizing
the South as a brlligerent but a, go recognize
ing the civil government there in providing
for the exchange Of civil officers, rank for
rank Tn S arrangement vas made between
the Commissioners regularly appointed on
each side. / assume that as sOon as q civil
war is inaugurated--as soon as rebellion
assumes such magnitude as to become a
civil war, Rll the rights of belligelents i'm
attach to both parties.
The Speaker then read the following from.
the opinion Of Justice Nelson, dissenting in
the case Of the Amy Warwick and the
Hawatna
ain the case Of & rebellion or resistance
by q portion Of the people of q country
against the established government, there
is no doubt, if, in its progress and enlarge
ment, the government thus sought TO be
overthrown sees Ct, it may by the compe-
tent power recognize or declare the exist
ence Of a state Of civil wsr, which viii
draw after IL all the consequences and RICH Is
Of war twesn the contending parties, as in
the case of public war. Mr.. Wheaton OBJ
served, speaking Of civil war, But the gen
esnl usage Of nations regards such war as
ali the contend ng parties 10 all
the rights Of war IS against each other, and
even a. respects neutral nations"
"This ASt Of Congress, [l3th July, 1881
we think, recognized q state OF civil war be-
tween the government and the Confederate
States, and made it territorial"
He then read the following from the cartel
alluded to in his remarks;
60 A cartel was signed the 22d Of July, 1862,
BIZ q general officer Of the United States and
4 general officer Of the Confederate States,
IN which they are referred 10 as having
been commissioned BY the authorities they
represent for a general ex-
change Of prisoners"
" Local, STATE, civil, and militiry rank
held BY persons not in actual military
service win not be recognized, the basis Of
the exchange being the grade actually held
in the naval and military service Of The re-
pective parties"
az citizens held by either parties on
charges OF disloyalty, or any civil officers
are exchanged, it shall be only for citizens
captured, suffers and tesmsters, and all
civilians ia the actual service Of either
party are TO be exchanged for persons in 8
similar position"
Then he resd the following extract, in
support Of his argument from the opinion
Of the majority Of the court in the csse Of
the Amy arwick and the Hiawsths:
~W. have shown that a civil war such as
that now wsg d betweerthe Northern and
Southern States, is properly conducted, ac-
cordinE 20 he humane regulations Of pub |
lie law, as regards captures on the ocean.
'sUnder the very peculiar Constitution Of
his Government, although the citizens owe
supreme allegiance 20 the Federal Govern
n Mt. they owe also 3 qualified allegiance
10 the state in which they ere domIeiled;
their persons and property are subject to its
laws.
Hence, in organizing this rebellion, they
have acted as states claiming TO be sovereign
over ell persons and property within their
respective limits, aud asserting right % |
absolve their citizens from their allegiance
10 .he Federal Government. Several Of the
states have combined 10 form q new Con
reaeracv, claiming TO be acknoWledg by
he world as a sovereign State Their
-irhi 70 do 90 is now being decided by wa
ger Of battle The ports end territory Of
.srh Of these States are held in host ity 70
lie General Government. Il is no loose, IN
,rran zed insurrect on, having 10 defined
,oapdarv or possession. Il has bou Bdery,
ma -ked BY lines Of bsyrnets, and which
an be CT ssed onlF hy force. Sou Of this
Inc is enemy's territory, because it is claim
d aud held 10 possession By sn organised,
hostile and be ligereut power"
He theu continues As belligsrent, the
south nav seize The prop rty Of its adver- {
,s-les: il msy command the officers q lie
,-nlies e take even The life Of its enemies.
rhe existence cf civil war shows the ex-
steuce Of q government 70 organize aod
AIRY on q government 70 direct that civil .
gar. In N = civil war both parties bad the I
sights Of bell gerents, snd tie armies Of 1
.ach might meet in the field and take the I
lie Of esch other without personal RESPONSE {
onity. A conqueror entering territory, II {
be has no power behind 10 guide him, b. J
comes the Jaw making power When Gen {
aral Scott entered the City Of Mexico, II 4
he had had no government behind him, (
~ would have been the making power. {
Where can you 60 10 for rules 10 decide this 4
was not q DC facto government; no2e ~ al 3
nay reading in al the mili'sry ccmmis- Z
sions organized throughout the country, it ]
is not necessary 70 prove the existence Of q
comm ission; lt is enough % show that the
sccused vas acting in ) capscity called for
by such COMMITS on; Tat &c wss axercis-
ing IT'S fuuoilors and duties. II this was