The Nashville daily union. [volume] (Nashville, Tenn.) 1862-1866, 1865-11-03


, been entitled to even the indulgence he 7
-e ceived
The Court before which Mccain is 8
raignrd, was a State Court II any par
y was offended it was the nation but
! made no complaint. 2 he United States hi
81 held the so-called Confederscy as a belli
erent, and therefore regarded the prison
as excused, except for treason, aud his p
l. role and amnesty had wiped that out. !
. allow the State Courts 70 try cases Of th
kind, would be TO uullify the President
L amnesty, which had been promulgated wit
v a view TO the restoration Of harmony, peac
and good will. Courts, under such circuu
stances, would indeed become institutions
Is strife and turmoil.
= Wheaton opp 1924 declared that a civ
N war broke up the bonds Of society; an
each party must be regarded as a bellig,
= rent. If Col. Mccain had been capture
during the war could he have been tried +,
the murder Of Horne? Certainly not, an
therefore be could not now be. He hs
committed but a single offence-treason
and Of that he had purged himself. His act
were within the rules Of legitimate warfar,
! and he did only what he was ordered TO d
< by his superiOrs.
He then read the ha5eas corpus act Z
1912, and claimed that the prisoner cam
under its provisions and then made som
reference 10 the case Of Mcleod, and th
burning Of the Caroline, during the Cana
disn rebellion. These remarks are omttet
here, a. they were repeated, and enlarge,
on, by Col. Guild, in whose speech they ar
: given.)
, He then reviewed the application, and re
stated its provisions, and concluded by ask
( ing: If the Confederacy had succeeded
would the prisoner have been liable for his
act? Ii it was outside the range Of legiti
mate warfare, he certainly would. But {
not ameuabie under Confederate success, b,
cannot be held 70 now. His act was on,
recognized as legitimate in a belligerent
aud he was but carrying out the orders o.
/ has superlors. What are the consequence,
Of disobedience 10 orders? Death. He had
no option.
Judge Guild followed, for the prisoner
III rcstated the points made in the applicH-
ton, and said that there would be no diff
/ Guilty IN substsntating them. But that was
not now the question. Could the case be
reached, by the present process2 That was
The point at issue; and he believed that il
could be go reached. He should urge the
1 following points:
l. a great civil war existed, the bellig-
erent- being the United States, and the So
called Confederate States.
.. The prisoner was a commissioned Off
/ Ger in the se-called c ntederCcy.
3. The court martial was regularly con
stituted.
4. The prisoner was assigned to that
court
s. All his actions We're in obedience to or
! ders from his superiors.
! g. The hanging Of Horn wss public act,
| recognized by the Confederate States au-
| thorlty.
z. The fo-called confederacy was &C.
] -f.s1 all -. Ill
! eut power, and hence it had a right TO order
court martiu's.
There were three kinds of opposition to e
| government, as follows:
l. When opposition is confined to par
! tiCular law, il is a mere schism.
?. when it is an attempt TO overthrow
| State Government, entirely, il constitutes
/ rebellion.
3. when it assumes great proportions, and
| the opposition is long, and stubborn, it is a
I civil war
In the last named instance, there must be
| a regularly constituted government in oppo-
sit.on to the old and regular one. When
that was the case civil war existed, without
regard 10 the justice or injustice of the
cause Of either party. In that cass, each
Of the beligerents had the same rights, aud
was BIO and by thelssme duties. According
% Hslleck, (lnt. J., 34S) every war must be
regarded as just, ON both sides aud what
ever Is permitted OF one, Is permitted OF sthe
other.
Grotius calls such q struggle as ours
mixed war but Wheaton u. 500 denies
the distinction, and declares that each par
~ is e belllgerent as much as IL they were
foreign nations. What is a civil war IN
monarchy, is equally 80 in a republic; and
rules of warfare are even more necessary in
such a case than IN a contest between for
eign nations.
The Federal Government had recognized
the so-called Confederscy as a belligerent
power not only had the government done
50. but also each department in its proper
capacity had done Il. The first was the
Presidents proclamation in April, 1851,
calling out troops; then Congress on the 18th
Of July, and often subsequently, did the
same and the Judiciary had done so, not
only in the casv of the Hiawatha, but in the
case Of every prize It condemned.
Wheatou's supplement to.hisiIuternation-
al law, had expressly recognized ours as
civil war, and nothing else. Both parties
were actual belligereuts, and their rights
were reciprocal. The United States had
hanged spies, guerrillRs, and bridge burners,
and the so-called Confederate authorities
could do the same. The Attorney General
had declared, in one Of his opinions, that il
was the right and duty Of a commanding
General TO preserve his own army, and
further his cause, by any means known 10
the laws Of war.
No one but an actually enlisted soldier
could enCsge ia hostile acts. A regularly
enlisted man could kill an eoemy; and do
any act. IN obedience 10 the orders Of his
superiors. but any act Of hostility, on the
part Of one not a soldier, sub ected the party
to the penalty Of death.
Hatleck, Wheaton, and Attorney General
Speed, all agree that q beIhgerent csn or
ranize military courts for the trial Of offend
ers Of this character. tSee she works of
wheaton, Halleck, aud De Hart, and pages
3 and no. Of Attorney General Speed opin-
ION On the trial Of the assassins.) East Ten
nessee was in the exclusive occupation Of
the so-called C0nlsierates, in 1901; aud the
acts Of Horne were calculated 70 materially
cripple their resources, and not only were
these acts committed within the Contedcr-
ate lines, but by q man who was not a sol
dirr. Col McCann could not have disoboy-
ID the orders O. sit on that court martial;
had be gone &c, he would have been liable
% the death penslty.
WheatOn Int i. 2S6l saws that in civil
war private individuals are not responsible
for public acts. Citizens must obey the de
facto authorities. Sir Matthew Hale ofhci-
ated as Chief Justice, under Cromwell. yet
II
sonal,v responsible: on the other hand, be
was continued in office. under Charles II.
Col Guild then took up the case Of Mr..
NcLead, who was indicted in the State OF
View York, on & charge OF murder, for hay
ing sent the Caroline" over the falls, with
its crew, during the Canadian troubles,
nearly thirty wears ago, sud contended that
l the present csse was nearly similar.
/ itCertain parties had baeu purchasing cup
| plies for the "patriots" Of Causds, and
! sending them across the Niagara river, by
I the "Caro.lpt;" and Colonel Mcleod, with
/ out authority, cut the boat loose, with those
: on board, and sent il over the falls. He
/ had received no orders 20 do SO. bat the
! brush government, on learning Of Is, ct
once assumed the responsibility, and Mr..
/ heoster, theu Secretsry Of Slate, ackowl-
] edged Us right 90 do so. But Mcleod was
| srres'ed pa New York, and held on "a charge
Z Of murder ana when demand was made
for bis re.esse. Che authorities OF New York
refused % give HIM up. writ al err,r
was taken q the supreme Court Of that
State. and Mr.. Webster. for the President.
sent the Al orney General 10 New York
with directions O. secure the release OF
/ Mcleod. by that court, if possible; and If
| not % 90 once get Uut a writ OF error and
[ take il % the United States supreme Court:
I and IL that could be done, in that instance.
I why not 10 the present one' The COLONEL
/ cantended that the circumstances were eveu
more favorable in the case Of Mccain,
than that OF Mcleod.
A state can neither make peace nor war;
and hence % cannot Be allowed 70 interfere
With peace or war made by the General
1oNeruueut. To allow i 20 do 50, would
ee virtual dissolution Of the Federal Union.
IN, Vas question srising exclusively M
eer 'Ae Laws of war.
'ns Aaoeas corpus act Of 1882, was very
. Z - IN 'ls operations, having been passed
ai,er The excitement ove- IN, Mcleod aase.
a -l.l was intended 10 apply TO ali coairover-
s'es q slmilsr nature
O., s -lse IHgg-But does no. that law apply
49,. - S ,.--lt does make use Of the term
| amen ; but il il generally applicable 70 .