Brownlow's Knoxville Whig, and rebel ventilator. [volume] (Knoxville, Tenn.) 1863-1866, 1865-11-22
From the Nashville Press and Times.
Judge Trigg On the BeIllgerent Rights
of Rebels.

Yesterday morning we made few hastily written
comments upon an elaborate decision Of His Honor,
Judge Trgg on the belligerent rights of The rebels
which was very singularly, we thought, connected
with his decision in the United States Court on the
petition of McCann for writ of habeas corpus 20
take him out of the power of the Circuit Court at
Knoxville before which he has been indicted for the
hanging Of Haun, and also of Jacob Harmon and
son, all loyal citizens of East Tennessee His de-
csion, as TO the petition is brief and decided. BE
says
The l4th section of the Judiciary Act of 1889
provides "That the courts of the United States
shall have no power issue writs of Scre aciaS, ha
beaS corpus and all other wrts not specially pro-
vded for by statute which may be necessary for the
exercise of their respective jurisdiction and agree
able TO the principles and usages of law. And that
either Of the Justices of the Supreme Court well
as Judges of the District Courts shall have power
TO grant wrts of habeas corpus for the purpose of
inquiry into the cause of commitment: Prouded,
that wrts of habeas corpus shall in extend
prisoners in jail unless, where they are in custody
under or by color OF the authority of the United
States committed for trial before some Court
of the same, necessary to be brought into
court to testify.
The law is so plain that it cannot be misappre-
hended and it admits of no comment
The petitioner, according to his own showing, is
a prisoner in JAIL upon the charge of murders pre-
ferred against him by indictment in the State Court
and he is not in custody under or by color of the
authority Of the United States, or committed for
! trial before any court Of the same
l have, therefore, no power or jurisdiction under
the law to grant the prayer of the petitioner in this
case, and consequently the writ must be denied
See the ec-parte Dorr, Howard, l04 er-parte
Cabrera, Wash, C. c. 234.)
No respectable lawyer, we presume will seriously
controvert this decision, which is based upon law
of the United States, and which is too plain to be
misapprehended. We could have wished that the
Court had seen proper to stop here but it did not
After decision so clear, why was it thought neces-
sary to deliver an o5itel' dicta, filing several col
umns of newspaper containing an elaborate and in
genous argument to show that persons in the rebel
service not amenable to the civil laws for put
ting Union citizens to death?
/ With the case of McCann we have nothing what
to do at present. 1t is from no ilfeeling nor
prejudice against him that we protest against the
dangerous doctrines announced on this occasion by
Judge Trigg We refer to it, for the second time,
because we conceive that it is oense of no ord-
nary magnitude for Judge of the United States
/ Court to announce from the bench that the late
bloody struggle through which we have passed was
Grill 2ru, and not Il rebellion and that the charge
Of treason cannot be legally preferred against one
of its authors or abettors. Let us quote from this
remarkable opinion. Says Judge Trigg:
Then we come to the question-was the late rebel
lion IN Its lnceptionS and progress mere rebellion
did it pass beyond those boundaries which ordina-
ry limit rebellion and attain the proportions of
cC5t rar, and by consequence enttle the parties
/ gagged in it to all the rights of belligerents
" GIRL icGr" says Mr.. Vatte, is when party
, arises in a State which no longer obeys the sove-
reign and is sufficiently strong to make head against
him; or when, IN republic, the nation is divided
into two opposite factions and both sides take up
arms. Usage applies the term civil war to every
war between members of the same political society
If 1t Is between part of the citizens one side
and the sovereign, and those who obey him,
on the other, it is sufficient that the malcontents
have some reason TO take up arms, in order
that the disturbance may be called civil war,
and not rebellion. The prince never fails to
call rebels all his subjects who openly resist him;
but when the latter become sufficiently strong to
make head against him, to compel him to carry on
regularly against them he must be contented
with the term Grill 0aI Civil war breaks the bonds
Of society and the government; it gives rise in
nation TO two independent parties who acknowledge
no common Judge. The common laws of war are In
civil wars to be observed on both sides The same
reasons which make them obligatory between for
eign States render them more necessary in the IN
happy circumstances where two exasperated parties
are destroying their common country"
To any one at all familiar with the incidents of
the past four years if upon reading this quotation he
will recall the number, power and organization of
the persons engaged in hostile operations against the
Government, he will be willing to concede that the
recent conflict of arms between the opposing forces,
although at the beginning it may have been conse-
quent upon mere rebellion yet that it soon culmi-
mated into n cirU lrGr
satisfaction, His Honor next proceeds to inquire
whether the rebel Court Martial had right TO hang
Haun, loyal citizen, guilty Of ofen.e against
the laws of the land, and charged with crime ex-
cept endeavoring to obstruct the movements of the
rebel army. Judge Trigg says on this point:
Taking then the statement III the petition of Nc
Cam to be tue ii only remains to inquire so far as
this branch of the subject is concerned whether the
court martial regularly convened it is alleged, for
the trial Of Haun upon the charges set forth in the
petition was such military tribunal is recogniz-
ed by the laws of war, or in other words by the law
of nations
The petition asserts that Haun was charged as a
secret active, public enemy Of the socalled Confed
crate States and of the armies in the occupation of
East Tennessee with committing an act contrary TO
the laws Of war, viz: conspiring and attempting
with others secretly, and not in connection with any
organized body of the troops of the United States,
to DESTROY the railroad running from Chattanooga to
Bristol which road was used by the armies of the
so-caed COnfedoraCy for the daily transportation of
troops munitions of war, supplies, etc. that he with
others, actually burned and destroyed important
bridge on said road, and shot and captured divers
Confederate soldiers then guarding said bridge.
These were the acts, it is alleged of secret,
tive and public enemy Of the socalled Confederate
States and the question is, whether the court which
tried him was such tribunal as is recognized by
the laws of war.
To establish this proposition it is unnecessary to
do at this time than to refer TO the opinion of
Attorney General Speed in answer TO the question of
President JOhnson-whether the persons charged
with the oense of having assassnated the President
could be tried by military tribunal whether
they must be tried before Grill court The whole
scope Of that opinion goes to show, not only that
there must be military tribunals to decide questions
arising in time OF war between beligerents who arc
open and active enemies, but also TO determine the
fate of those who active but secret participants
in the hOStlities He says: The commander of
an army, in time of war, has the same power to or
ganize military tribunals and execute their judy
ments that ne has to set his squadrons in the field
and fight battles. His authority in such from
the law and usage Of war" He also says that
buShwhacker, jayhawker, bandit, war REBEL an
assassin, being public enemies may be tried, con-
demned and executed as offenders against the laws
Of war. The soldier that would fail 10 try spy, OF
bandit after his capture land l suppose any other
secret active enemyl would be derelic in duty
If he were to fail TO capture he is as much bound
to try and TO execute if guilty he is to arrest the
same law which makes it his duty TO pursue and kill
capture makes it his duty to try according to the
usages Of war. The Judge of civil court is not
more strongly bound under the constitution and the
law TO try criminal than is the military to try an
lou ,ofr-