The Nashville daily union. [volume] (Nashville, Tenn.) 1862-1866, 1865-11-14

i4AIAntAIDA A~---
nate aud carry Il on. When The party I
5 fsbeilion occupy sad hold il q hostile man
e rer q ceftein portion Of territory; have cas-
z OF their alleciance; have organised armies
; have comrnerced hcstiiities against thei
former sovereica, and the world acknoal
edges them Is 1eiiigsreEts, and the contss
e ircr. Tacy clam 70 be N arms to esteb
: liih their liberty and independence, Will
the sovereign party trests them as bellig
erents and rebe.s who owe sllegiaace, ans
wlo should be punished with death to
I. their treason.
q The avs Of war, Is established s1aonr
nations, have their foundation in resson
snd al tend 70 mitigate the cruelties and
misery produced BY the seourge Of war
Hence the parties 70 = civil war USUALLY
esncede 70 each other bellseerent rights
They exchange prisoners, end adopt the
ether eourtesies and rules common 70 public
or nstional wars" The learned Judge thea
quotes from Aattel substantially the same
I paragraph given in the preceding part OF
this opinion, and then proceeds thus "As
q civil war b never publicly pfociaimed, g
a94itIte, again { insurgents, rs actual exist
ence IS fact in our domestic history which
the Court is bound to a ,tiee and 10 know.
The true test OF ia existence, Is found in
the writings Of the sagea Of the common la
may be thus summarily stated when the
regular course Of justice is Interrupted by
revolt, rebellion, OF instruction, so that the
Courts Of Justice cannot be KEEP. open, eitH
tOar erisfs, and hasiisilies Nay be prosecuted
On the same footing as II these opposing the
! 6overnmeat were foreign enemies Invading
the land"
Agaia he saws: This greatest Of civil
! wars was not gradually developed by popu-
lar commission, tumultuous assemblies, or
local unorganised instructions. However
long may have been is previous eoneep-
ton. il nevertheless sprung forth suddenly
from The parent brain, Minerya in the full
panopiy NJ fg0y- Il il not the less q clUii
car, with 5cilicereNf parties in hostile array,
| because Il may be called an " insured. on -
/ By enc side, and the insurgents be consider
/ ed as rebels or traitors. Il is not necessary
that the iadcpeadcace Of the revolfed pro-
vince or SAFE be acknowledged in order 20
COZ sutute it a party 5eilicereaf in 8 war ae-
cording 70 the Jaw Of nations"
In the case Of The SantiEsima Trinidad
| (Ith wheaton, SS7, quoted il the same opin-
ion) the Court say: s4The Government q the
United States has recognized the existence
OF a civil war between Spain and her colo
MES, and has aVoWed her dissemination 10
remsin neutral between the parties. Each
party is therefore deemed By "a O belliger-
ent nation, having 30 far as concerns rs. the
sovereign rights Of war"
Now with the facts Of the late rc5clfioa as
il Is usually called, staring Us in the face,
and IN view Of the authorities just cited,
and especially that emanating from the
CHEST judicial tribunal in our country,
am a q loss 70 perceive how any Judge or
cou-t. whether State or Feaeral, can assume
the responsibility Of pronouncing otherwise
than that IL was cfrif icar--thztihe parties
engaged in il we're beliigerents, end, as such,
entitled 20 exercise every rigat accorded 10
them by the laWs Of war. Il wil Of course
be conceded, that, If it were cicik l1aT, and I
the parties engaged ID it were belligcrents in
the sense Of International lev, then what
ever one Of the bellieerent parties might do
IL conformity 10 the law and usages Of war,
80 also might the other party.
Taking then the statement in the petit
ticn Of MeCan 10 be true, il only remains 10
inquire, 50 far as this branch Of the subject
Is concerned, whether the court martial |
regnlarly convened, as il is aliedged, for the |
trial Of Haun, upon the charges set forth in |
the petition, was such a military tribunal |
and Is recognized BY the laws Of war, or in |
other words by the law Of nations.
The petition asserts that Haun was chargl /
ed as a secret, active, public enemy. of the /
so-called Confederate States, and Of the 4
armies ia the occupation OF East Tennessee,
with committing an act costrary 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, 10 destroy the railroad run
ming from Chattanooga to Bristol, which
road was used by the armies Of the social
ed Confederacy for the daily transportation
Of troops, munitions Of war, .uppiies, &C.,
that he, with others, actually bur ed and
destroyed an important bridge on said road,
aud shot and captured divers Confederate
soldiers then guarding said bridge
These were the acts, il is alleged OF a
secret, active and public enemy Of the So
called Confederate States, aud tue 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 70 do more At this time Than to
refer 10 the opinion Of Attorney General
Speed in answer 10 the question Of Presi-
dent Johnson--whether the persons charged
with the 0iiense Of having asasina.ed the
President could be tried BY a miiitary tribu-
nal, or whether they must be, tried before
cicI 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 belligersnt who are
open and active enemies, but also to de-
iermine the fate Of those who are active.
but secret participants in the hostilities. He
sayss ''the commander OF an army in time
Of war has the same power 10 organize mill
tary tribunals and execute their judgments,
that he has 20 set his sQuadr0ns IN the field
and fight battles. His authority in such
case Is From the law and usage OF war"
He also says that a bushwhacker, Jay
hawker, a bandit, war reeel, an assassin,
being public enemies, may be tried. con-
demned and executed IS offenders against
the laws OF war. The soldier that would
fail to try > spy or bandit, after his capture,
land suppose any other secret, active enc
my, would be as derelict IN duty as il he
were 70 fail 10 capture he is rs much bound
to Try and 70 execute, II guilty, as he is 20
srEest the same law which makes It his
duty 70 pursue and kill or capture, makes 1t
his duty 10 ny according TO the Snsages Of
war. The judge of q civil court is not more
strongly bound under the constitution and
the law TO try a criminal than is the military
10 Try an offender against the laws Of war"
These are among the rights which accrue to
belligerents from the laws Of war, and Of
couue any belligerent has the right 70 ex-
ercise them. The petitioner insists that
they were lawfully exercised BY the
court martial for the trial Of Haun, Of which
he was > member, aud J confess that I am
unable 70 perceive any distinction between
that case and the cases enumerated by the
Attorney in the opinion 10 which
have referred.
Il Is my opinion, therefore, that If the
charges made sgainst Haun, as the same are
stated in the petition, are true, he would be
an offender against the laws of war, and
might properly te tried BY military court.
And that the members of suoh court, If
they acted in good faith, even slough they
may have given wrong Judgment, cannot
be held personally responsible upon en-
indictment, or other proceeding, civil or
- Oa.aa. - a
may have enacted in such trial. The laws
Of war being part of the laws Of nations,
and consequently are laws OF the Unite q ]
States, the courts of the respective States 1
ara as much bound 10 respect them, as are
the courts Of the United States.
Upon the question rs 70 whether the 80
called Confcderate States was 8 Government
&c facf0, deem Is unnecessary now te az
press an opinion. But il is certain thst the
Government Of the United States never ac-
knowiodged Il, nor did any other power Of /
which / am aware Such scknowledg-
lnent presume, would be essential % make
il q DC Tdct0 Government within the mean
ing Of the law Of nations.
Tbs only remaining question 10 be con
tidered Is that made upon Che power Of
Federal Judge 70 issue the writ Of kdbeas
corpEs in this case. This is a question Of
paramount importance, and 50 far IS this
hppucAlon - colctfAeuf must apeofo al
oilers which have preceded il. Il is enc
however which has been 50 definitely and 4
absolutely settled thst it would seem impos
sible that there could now BE- any oonaict
Of opinion upon it.
Is must be remembered that tte District
and the Circuit Courts Of the unitsd States,
and the Judges Of said courts, can exercise
jurisdiction IN those cases only, where il is
expressly conferred upon them BY law Of
Congress. And 50 upon application made /
10 3 District judge, IS n he case on this pc
tition. 10 issue the writ Ct iatcas c0rpHs, be /
must consult the acts OF Congress - ascer- /
tain what his power and jurisdiction are /
upon that spbisct.
The l8th section Of The Judiciary Act Of /
lTs9, provides, . that the Courts Of the /
United States shall have power 10 issue
sore Jaasas, Aa5sas corPss, and all other
writs net specially provided for BY statute |
"a ich may be Necessary for the exercise on
their respective igrisdictions, and agreeable |
10 ihe principles and uaages Of law And |
that ciibsr Of the justices of the Supreme
Court, Is vel as judges 81 Dist-itt Court,
shall have power e grant Writs 81 he3eas
e,..nus Tor the purpose Of inquiry into the !