The Nashville daily union. [volume] (Nashville, Tenn.) 1862-1866, 1865-11-05

N "A
| eououering State do not extend oFer sue
foreign territory, yet the laws Of war confe
upon il ample power to govern such terri
tory, and to punish ell ofeuses and crime
therein By whomsoeYer committed. Tn
trial and punishment Of the guilty parlie
NAV be left 70 the ordinary eour.s aud al
thorities Of the country, or they may b
referred 70 special tribunals Organized 70
I that purpose BY the government or militars
1 occupation; and where thew are 20 referre,
| 70 special tribunals the ordinary iarisdic
ton is to be considered as suspended quad
hoe. Il must be remembered that the au
thority Of such tribunals has its source
not in the laws Of the conquering, nor in
those Of the conquered State, but, Ike any
ether powers Of the government OF military
occupation in the laws Of war and, in all
cases Eot provided for By the laws actuslly
in force IN the conquered territory, such
tribunals must be governed and guided by
the principles Of universal public iurispru
denee. How far the laws Of the former
government continue in force after the con-
quest and how far they are replaced by
those Of the eonquering state, by those Gu
acted by the government dc fccto, or by
new principles Of jurisprudence, or usages
and customs introduced with the conquer
IS considered in other places, and need not
be repeated here"
He sets forth that the military occupancy
Of the territory gives the possessor the right
70 determine how that part Of toe country
shall be governed Even our military courts
are in the habit Of trying cases Of arson and
other matters, unconnected with the army.
The amnesty is pledge that all the past
is ObliteFated-it wipes away absolutely all
guilt. Il comes from the United States,
paramount in authority. It was decided in
New York that it wiped out all offences
committed against that State in the service
Of the Confederacy, and the cases were dis
missed In any aspect Of the case, the
State court has no power TO prosecute the
man. As well might the courts Of Virginia
institute case against General Lee for his
acts Of war.
This court has the power to relieve him.
II not, the preludices and the hates that
linger about various localities, must have
full sway to the detriment Of justice.
shall not refer to the general jurisdiction Of
this court. l coneede that, in ordidary ca
ses, your Honor could not release him But
il a fair and proper view is taken Of the act
Of ls42, the petitioner falls within its pro-
visions. Il is remedisl in its cha .acter.
Che question narrows itself down to the
meaning of one word in the act. On a bread
and liberal construction it will not exclude
my client. Bonner, in his Law Dictionary,
gives this definition Of that word
FoKEIeN.-That which belongs 10 another
country; that which is strange.
2. Every nation is foreign TO all the rest,
and the several States OF the American
Union are foreign to each other, with res
pect TO their municipal laws.
Let US analyze this act Of Congress. First,
then, The deed must claim to be done under
the authority Of a State. NY client so
claims. ID. 1t must be for an act done or
omitted according to the commission of such
authority. My client claims this also. Sd.
The petitioner must be a citizen. Beyond
all doubt Mccain was a subject of the Con
federate States, bound to obey its authority
more, he was, at the time d1miciled in the
At the time Of the commission Of
the deed in which McCann is arrested, it
formed part Of the territory of the dc facto
government he was serving. The only bond
between one State and another is the au-
thority Of the General Government. If q
bill Of exchange is drawn by Tennessean
on one in Alabams, it is, to all intents and
purposes, foreign bill Of exchange. The
laws Of any other State are foreign laws to
Tennessee. Then, when the Federal tie
was cut, and its authority removed by mil
itary power, he territory covered by that
became, until the reinstatement
Of the Federal authority, foreign State.
In support of this position, the speaker |
read the following extract from Wheaton, |
A cited the cases in point Of the island Of |
santa Cruz, belonging 10 Denmark and the |
Island Of Castiue, belonging 10 the United |
States.
" But while such territory forms no part |
IF the Union, and its inhabitants have one |
)f the rights, immun tias, and privileges of |
,itizer Of the United States, under the Fed |
raj Constitution aud lave nevertheless, |
,taer nations are bound to regard the con |
IueTed territory, while in our possession,
IS territory Of the United States, and to re- |
ipect 1t as such, and to regard its inhabi- I
ants as under our protection and govern
nent for, by the laws and usages of nations,
avs Chief Justice fancy, conquest is a
ralid title, while the victor maintains the
Exclusive possession of the conquered
country. The citizens Of no other nation,
therefore,, have a right TO enter it without
he permission Of the American authorities,
Tor to trade with them. As regards eli
ither nations, it is a part of the United
states, and belongs 10 them as exclusively
s the territory included in our established
81. In the case of the Island of Santa
'ruz, belonging to the Kingdom of Den
mark, bat Ia the military occupation Of
British forces, the Supreme Court says; al
hough acquisitions made during the war,
re not considered as permanent until con-
irmed by treaty, yet to every commercial
nd belligerent purpose they are considered
IL q part Of the domin or Of the conQuerer,
o long as he retains the possession and
government Of them. The Island Of Santa
,ruz, after its capitulation, remained
british island until twas restored to Den
mark >"
"2 Castine in the United States, was cap
urei by the British forces on the first day
4 September, 1914, and remained in their
possession until after the rstifca-
ion Of the treaty of peace, in February,
SIS. BY the conquest and military oocu-
,ation Of Csstine," say the Supreme Court,
the enemy acquired that firm possession
which enablfd him to exercise the fullest
lights Of sovereignty over that place.
he sovereignty o. the United States over
he territory wss OF course suspended,
nd the laws Of the United States could no
ouFsr be rightfully enforced there, or be
obligatory upon the inhabitants who re-
named and submitted to the conquerors.
81 the surrender, the inhabitants passed
nder temporary allegiance TO the british
aud were bound by such laws,
nd such ouy as it chose to recognize ADD
mpose. From the nature Of the case, no
Their laws could be obligatory upon them
or where there is no protection or allegi-
nee. or sovereignty, there can be no clam
0 obedience. Castine was, therefore, du-
ing this period, SO far as respected our
evenue laws, TO be deemed a foreign port,
nd goods imported into it by the inhsbi-
ant, were subject to such duties only as
he British government chose TO require
UGH goods were, in no correct sense, i'm
orted into the United States"
This island was decided to have been
oreign port as far as relates t. the United
tates during the military occupation by
be British The United States could not
unish any citizen for any act committed
uring such occupation. II that principle
rss correct, what hiRders its application 10
be Confederate States
II il is in the constitutional power Of your
ionor to grant the application Of the petit
Ioner, you viii add TO the quiet and peace
tnat part Of the country-to bring on for
etfulness Of the past 4 increase the good
rill between those who have been enemies
1r four years. don't ask that any thing
hall be done not warranted BY law, but If
yer a case existed where a broad and liberal
could be given to a sir gle word
a behalf Of the healing Of old prejudices
I'D restoration Of good feeling, this is one.
ia comes here feeling that he is sustained
V the principles Of law, and if the Court |
oes not inteTf Re, be fears his fate is sealed.
Judge Trigg will probably render de
isioR on Monday, on the application for
be issuance OF a writ Of ka5eaS eoTpus.