Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1865-11-21

IS cases recently decided by the Suprem
z Court. and which are known a. tn
+ .' prize A" eases reported in the second vol
q ume OF Blacks Reports, the Court, as Z
seems % me, has settled this question
IL. aud no United States COurtOr Judge, nO
indeed can any state Court disregard tha
Z decision. Mr.. Justice Gliyer, in deliver
ing the opinion of the Court iu tho-,
cases, says: The parties helligereut il
[ public war are independent nations.
b But IL j. not necessary % constitute Wa
that both parties should be OeacllnOWledged
a. independent nations or sOyer-
eign States. A var may exist
. where one of the belligereut-
claims sovereign rights as against the
other insurrecti0n against Govern
ment nav or may not eliminate in an
Organized rebellion, but civil war al
ways begins by insurrectiOn against the
lawful authority of the Government A
cfrH Irqr Is never soleInuly declared IL
becomes such bv accideuts-the number,
mower and organization Of the persons
who originate and carry it on. " hen
the party in rebellion occupy and hold in
"a hostile manner certain portion Of ter
riterv: have declared their independence;
have east of their allegiance; have or
gduized armies; have commenced hos
tiIities against their former sovereign, the
world Acknowledges them as belligerent-,
and III contest 5Cur. I,telj claim 10 be
in arms TO establish their liberty and in
dependence. IN order 10 become a sOver-
eigu state, while tie sovereign party
treats them as insurgents and rebels who
. owe allegiance and who should be pun
Z isled with death for their treason.
The laws Of war, a- established
7 among nations, have their foundation in
4 reason, and All tend to mitigate the cru
eldes and misery produced by the scJurge
. Of WEr. Hence the parties % civil war
/ usually coucede 70 each other beIigerenJ
rights. They exchange prisoners, and
adopt the other cOurtesies and rules COM
/ mon 10 public OF national wars The
1 learned Judge then quotes from Nattal
substantially the same paragraph given
/ in the preceding part Of this opinion, and
. then proceeds thus - As q civil war Is
. never publicly proclaimed, e. HoW12e,
. against Insurgents, IFS actual existence Is
! q fact in -tsHr domestic history which the
court IS bound 10 notice and % know.
The true test Of its existence, as found IN
the writings Of the sagss Of the common
law, may be thus summarilY stated
When the regular course of justice is
interrupted by revolt, rebellion or in-ur-
reCti0u. so tnat the courts Gi Justice gaQ-
not be kept opau, civil war exists, and
hOsrilities may be prosecuted on The same
footing as il those opposing the Govern
maut were foreign enemies invading the
land"
Again LB says "This greatest of civil
wars was not gradually developed 10y
popular cOmmOtiOn, tumUitdOus assem-
bli5s, or local unorgauized instructions.
However long may have been It's previous
conception, 10 neNertleless sprung forth
Suddenly from the parent brain, Mi
ueTva IN the full panoply 0f wsr. Ii is
not the less @ civil war with bellIger8nt
parties in hostile array, because it may
be called gn 'insurrectiUu' by one side,
and the insurgents be considered as rpn6is .
or traitors. 1t Is not necessary that the
inaaueudeuce of the reyOlted Dr0vircr or .
state be aohHCE lodged IN order 10 eOnsfI- .
tute il party beiligeEeut Ia a war ac-
cording 70 the law Of nations.
Ia .ha case Of the SantissIma Trinidad
seventh Wheaton, thtge hundred AID
tkirtv-seventh, quoted in the same
opinion the Court Saws: The Govern +
meut of the nited states has recognized
the existence OF civil var between
spain ami hsg colonies, and has ayoWed
her determination to remain neutral Dee
tween the parties. Each party Is, there
having So rar - concerns ssr iEe sOylr
eirn -;;ghts Of war,'
Now with the facts Of the late rebel
lion, a. it Is usually called, staring us
an in the faao, ami iu view OF the authuIi-
Ties Just cited, aud especially that eIlaua-
ting from the highest judicial tribunal ln
our country, I am at loss 10 perceive
how any Judge or court, whether state or
Federal can assume the responsibility OF
ur5namciug OlHerw ise than that 10 was
d civil War-thaJ the parties engaged in
ft We're heIIiEerenrs. and as such, entitled
10 exercise every right accorded 10 them
hv he laws Of war. 1t viii Of course be
conceded that If it were civil war, and
the parties engaged in il were bellIgereuts
in the sense OF International law, then
whatever one of the belliCerent pAties
might do in conformity % the law and
usages Of war, 50 also might the other
party.
Taking then the statement in the pc
titi0n of McCaun 70 be true 1t only re-
mains 20 INQUIRE. 80 far rs this branch Of
Tie subject is concerned, whether the
court martial regularly convened, as it is
alleged, for The trial OF Haun, upon the
charges set f0rthin the petition, was such
"a military tribunal IS Is recognized hy
the laws af war, OF, I'm other words, by
the law Of nations.
The petition asserts that Haun was
charged a. a secret, active, public enemy
Of the so-caIled Confederate States, and
Of the arnies Ia occupation Of East Ten
nezSeo, with committing an act contrary
90 the laws of war, viz: c0uspiring and
attempting with others secretly, and not
F. in correction with any organized holy
of the troops OF the United States, 70 de
nooga to Bristol, which road was used
by ths armies pf the s0-called Confece-
racv for the daily transportation Of troops, /
munitions Of war, supplies, etc; that he,
with Others, actually burned and de-
srro. Ell ala Important bridge on said road,
and shot and cauturcd iivers Confederate
soldiers thal slarilug said bridge.
These are the acts, 10 Is alleged, OF
seeret. active, and public enemy Of the
so-raIled Confederate States, and the
question Is. whether the court thaJ Jrled
MIN il such a tribunal as Is recognized by
tLe lave OF war. To establish this propO-
-irion II IS unnecessary to DO more nj this
time than 10 rsfer 70 pne opIlisn Of At
. toruey GepeTaI speed " answer TO the
question of President JOhnson-v ssS=,ller
the persons charged with the Offense OF
sssass sinatipg The President could lie
tried by a military tribunal, or whether
they must be tried before civil COURT
The whole scope Of that opinion goes 70
show. not only that there must be mill
lary tribunals 90 decide questions arising
In time Of war between bel ger
euts, who are open and active
enemies, but also 70 determine the
fate of those who are active but
esaret partieipaEts r. the h0stlities. He
savs. {. The commander of an army IN
time of Of war has the same power 20 or
ganize military tribunals and execute
their judgments that he has to set his
-glsdrons ~ the field and fight battles
His authority in such cases is from the
law and usage Of var He also says
that a blshwhaeker, a jayhawker, a ban
Iif "a war rebel an assassin, being public
enemies. nay be uled, condemned, and
executed as offenders against the laws OF
var The soldier that would fail to Try
q SOW OF bandit, after his capture and /
9r..Icse any other secret, active enemy y
would be IS derelict Ia duty - a. ne
were 10 capture He is as much bound
10 try and execute, if guilty as ne Is 70
atresf The same law which makes II ms
duty % possas AMI sili or capture MAKES
. it his duty TO Try according ~ the dsi.ses
of war. The Judge Of q civil court Is
NlL more es4DlEaA IElAA-Af st-ANA--
. Consultation end the law, to try criml-
nal than Is the military " t. gn Of
feu6er against the laws Of war. These
are among the rights which accrue 70
heIligerent7 from the laws Of war and
! . Of course any belligerent has a right TO
. e&ele e,se them. The petitioner insists that
they were la'-fgily exercised by the
court martial for Tie trial Of HAM, Of
Niheh he was member, and / confess
lhat 4 Az unable 10 perceive any distiuc-
ton between tHat eass and the eases emu
merated by the Attoruey-C General in the
. Qninlon % which i have referred.
} it Is my Stnion, therefore, that If the
charges made against HauE. - the same
ere stated IN the petition, were true. he
would be an offender against The laws of
war, and might properly be tried bv a
military court. And that the mem bers
Of such court, II they acted I'm good faith.
e.en though they may have given a
wrong Judgment, cannot be held response
ble upon an indictment, o. oti.ei no
ceeding, civil or criminal, in a State
1ogIt. for the part they may have enacted
10 such rriaI. The laws Of war being a
part Of the laws Of nations, and ecnse-
quendy are laws Of the United States, the
courts Of the respective States are as much