The Nashville daily union. [volume] (Nashville, Tenn.) 1862-1866, 1865-11-17
For the Nashville Union.
The Mccain Case Arain.

and Times Of the 18th ult., entitled Judge
Trigg on the Belligerent Rights Of the
Rebels" We know not who is the legal |
critic Of the Press and Times, but we
sincerely pity the head which could ray out
such darkness as the contents Of that ar
tiele- Take this portion Of it for q sample.
We conceive that it is an offense Of no
ordinary magnitude, for Judge OF the Uni
ted STATES Court, TO announce from the !
bench, that the late bloody struggle through
which we have passed was g civil war, and
not q rebellion and that the charge Of trea-
son cannot be legally preferred against one
Of its siders and abettOrs."
The writer is commenting upon Judge
Trigg's opinion in the Mccain case, aud he
actually eonceives the Judge to hold that
the siders snd abesters Of ethe late bloody
struggle, cannot be legally charged with
treason because it grew beyond mere re-
bellion into the proportions Of civil war.
And this right in the teeth Of the fact that
under Judge Trigg's charge bushels Of such
Indictments hare been found, which would
have given divers Of such aiders and abet
tiers 1--WE may remark in passing) some an
hoysnce, had not President johnson fur
nished them with certain potent specifics Of
highly protective character, yclept, "spe
cial psrdons." We think had this writer Of
the Press and Times hourished in Pope's
time, he would have achieved an immortal
/ ity and been embalmed in the imperishable
amber Of the Duneiad. We do not blame
the legal critic Of the Press and Times
Cor not undertaking Judge Trigg' sopiniOn,
but we do condemn him for this, that, not
comprehending it, he thouid, neyerthe-
less, have made it bis business to gable
about it, and thereby to distOrt and per-
vert il. As this case was one Of interest, il
may not be amiss 20 set forth in a more
popular form the doctrine actually
enouneed in his Honor's opinion, as We con-
eeive it. One thing We premise, Judges
opinion must always be read by the light
Of the facts on which ii was .predicated. In
McCann's case, the facts were briefly these
Dick Mccain, rebel officer, was detailed
on Conrt Martial, which, at Knoxville,
tried, convicted, and executed Ham, for
attempting 10 break up the rebel railroad
/ communication in East Tennessee BY burn
ing the railroad bridges. After the war,
McCsnu took the beneftof President John
sons amnesty. Nevertheless, at Knoxville,
he was subsequently arrestedluDder States
warrant, and committed TO Jail on q charge
Of having murdered Haun. lie applied to
Judge Trigg for a writ Of habess corpus.
His application was ably pressed by his
counsel on two grounds. First, that he was
improperly arrested, ard ought to be dis
charged, because his legged offense was
eondoned by the amnesty. Second, that
the Federal Court had the power to dis
charge him. In delivering his opinion, the
Judge, abiding to the FIRST position taken
by the prisoners counsel, did hold that be
was entitled 10 be discharged, declining,
however, to interfere on the second
ground, because be had no power to do 50.
His Honor thought Mccain was improp-
arly arrested, because having been regu-
lsrly detailed on the court martial above
mentioned, and having acted in pursuance
Of the commands Of his superior officers in
regard thereto, his conduct was--not guilt
less, for il was treason-but simple act Of
war, like killing Union soldiers on the
battle -6eld-which is also treason--and
like this, clearly covered by the
protecting p1is Of the smnesty. The critic
Of the Press and Times leaves out Of view
the bearing Of the amnesty on the case al
together, and supposes the Judge 70 have
held thst the laws Of war or the belligerent
rights Of the rebels themselves would operate
to take the act Of sitting on the court mar
tial out of the category Of treason, and this
because the slate bloody struggle" attained
| 10 the propartions Of a civil war. nnssinG he
yond the dimensions Of a mere rebellion.
But the point is this. The amnesty con-
dones all acts arising out Of participation
in the late rebellion, instruction, civil war,
an qHo epnque nomiHs gaudet. OF course,
however, il does not condone mere private
murders. In given case, therefore, it be-
comes important to draw the line separating
, the sets condoned from those not condoned.
Let US illustrate Suppose France is waging
= an unjust war against us, and French troops
I occupy portion of Texas. A French sol
AltN hlAAn ANANA NNAfAAtA an hANtANf ave- AAAN
war he is found in Texas; can he be arrested
and tried for murder? Assuredly not. His
act was not private act. Il was Of an i'm
personal character, aud justified by the
laws OF war. But suppose this French sol
der, straying from his camp, had murdered
/. a Texan woman. and after the war he is ar
rested in Texas; clearly for this be could be
tried and convicted, Cor this was his private
act, and not justified by the laws Of war.
0 Now, in the case Of the confederate soldier
: there was no sovereignty to back him, It is
T. true. Still, his acts-Which had he been
French soldier would have been in accord
q ance with the laws Of war-though treason
aud liable 10 be punished with death-thesc
acts, are oondoned by the amnesty. Il lie
these impersonal acts, so 10 speak, which the
amnesty covers; those acts not done on private
accent, but as part Of the general move
ment; of the vast organised rebellion calling
u itself the Confederate States Of America.
with its Congress, lie Tribunals, lie Prcsi-
dent, It's Departments, its Armies, etc, etc,
- in word, an the apparatus, machinery,
aud semblance Of regular government.
Hence again, We say, the Importance Of as
certaining whether McCsnn's acts were Of
this impersoRai nature, OF something on his
own private account. Not that it is less
oulpsble on the one footing than on the
other but, in she former case, the amnesty
wrought remission in the latter, not.
Hence the necessity Of inquiring whether
the court-martial was regularly convened,
and whether its sction wss in conformity
with the laws Of war, and also whether
= haun's act were one punishable with death
: by the laws OF war. in case it had been COM
ID mitted against foreign Zoe in the ooeupa-
uon Of East Tennessee at the time. because,
'' If all this was 80, then, clearly. McCann's
amnesty condoned his action on she court
martial just as clearly as il he had killed
- HsuR in the progress Of . ght undertaken
90 keep him from doing what be attempted
70 compass. The Judge thought, and SO do
We, that the pardon Of the General Govern
meat precluded the State Government from
Furnishing this act. This in q sin0is Gov
ernmsnt, like that Of England, where ali
ohenses ofeyery kind are committed scaiust
:, the same Government, would be clear. lis
= complicated somewhat by The d.aaiity Of our
Government An American oves a So.bl,
allegiance, one ~ the General Government
3 and one TO the State Government. Their.
. are oaenses sgainst the General Government
: and Ofienses sgaiust the State Government.
, The self same act may at the sslf-sane
r time vialate Federal lau spl
Z State law. Take the cases ct eoun-
tsrseiting the ooin or forging greeuback
Tor example, or the McCanR case itself,
where the same act was al once treason
against the Uuited States, aud murder viols-
; tive Of the State laws. Nov, surely. in such
cases, the criminal csEnst be first tried, con
victed and punished in the Federal Court,
Cor the act regarded as a violation Of a Fed
eral law, and thea turned over 10 the STATE