Daily union and American. [volume] (Nashville, Tenn.) 1865-1866, 1866-06-22

The Henderson Habeas Corpus.
STPERIORITY OF CIVIL OVER NIL
ITARY YJTRISDICTION.
Important Decision Of Judge Ballard,
at Louisville.

ccedcd for some two weeks or more. Beiori
appearing, however, he was rc-arrested by
the military-having been previously ar
rested and forfeited his reoognizance. HI
then applied for a writ Of hobea8 corpus, re
turnable before Judge BALLARD, Of tn,
United States District Court for the Distric
of Kentucky. The writ was granted, but
General JEFF. c. DAVIS, under instruction,
from General THOMAS, refused to comply
with its iniunctions, and Mr.. HENDERsoN
was brought to Nashville and put upon trial
la the meantime the facts were brought to
the attention Of the President, who directed
that the writ should be obeyed, and that the
body Of the prisoner should be brought be-
fore the Judge, and the case disposed oI
under the civil law. Upon these general
fact, Judge BALLARD rendered the follow.
ing decision:
POINTS ~ THE CASE HEREroFoRE DECIDED.
I have heretofore decided that the rebellion
against the authority Of the United States was
ended prior to the &d day of Aprl, 1850 when
the relator llENpEEsON applied 30 me for writ OF
hubnH opfpHz- that, consequently by the terms OF
writ are restored: that. tu writ directed 10 a
mIlltay officer IL wa- not sufficient for him to re
turH. that hrhel the prisoner under orders of his
supcrIor. aud vas dr"atcd by him 10 obey writ
of bIbsaE ror,,us, aud that he might bee com
PEELED, in answer 10 writ of hab'Gy cgspus, 10
return the body Of any person detained by
hun. even though hc should certify under oath
that such person detained byhim a
prisoner under authority Of the President of
the United States.' / also decided that the
officer who refused 20 obey the writ by re
farming the body Of the prisoner was guilty of a
contempt Of court and might be punished for the
.aus Accordingly, process 0i contempt was ac-
tualy issued.
ms orINIoN EE-ArrIENED.
na not disposed to rrtrnrt or modify anything
formerly decided, nor anything contained in the
upInisn-thon pronounced The opiuiou was not
rendered until after the fullest consideration and
sub . Iuout reflection has confirmed my conviction
Of the correctness of all the views then expressed
hud. too that In every essential particular. they
are directly sustained IN an able opinion recently
pronounced. ia the state OF New \ oTk, by Mr.
Justice NrLsoN. of the Supreme Court of the
United states. IN the matter of JAMES EAGAN.
/ am now gratiied 10 state that, after all the
foregoing proceedings took place. Gen. THONAs
aud Gen. DAVIS have both appeared in court, and
rent cuutempt. that even the counsel Of the pris-
uuur have formally requested The court TO pro-
coed no further ou the process issued ia that be
hall beu. THOMAS, and Gen. DAVIS, have not
only declared that no contempt was intended. but
the body oi the prisoner has bcun produced in
court by Gen. DAVIS and submitted fully To its
by permission of the court, filed an amended re-
turn.
NATURE or THE MOTION rnU the PRISONERS DIS
CHARGE
And now the counsel of the prisoner, alleging
that the return shows no sufficient cause for his
arrest ur detention. have moved that he be dis
charged
The motion made IN this form assumes that all
the facts legally stated in the return true. but
ihHi admitting their truth the prisoner Is entitled
tU his discharge.
-,
Was arrested under orders from Major General
THOMAS for the purpose at being brought to trial
before q General Court Martial then convened in
nashville, Tenn, upon certain charges and spccl-
kcntluus whI'h are made part of the return. II
further states that ho has been put upon his trial
before said court on said chargcs and that the
trial has not vet terminated. but wss progressing
until 20 was suspended u order that the prisoner
might be brought before the court In obedience 10
the writ Of hJhcas corpus.
The return would perhaps have been more for
mal II instead of simply referring 10 the charges
II had set them out at length. Eut the same strict
ness has never been applied 30 return to "a hu-
beaE corpus which is applied to pleadings in civil
actions llurd on llabeas Corpus page 2jg.l
RELATIVE JUEIsnICrGoN ur COURTS, CIVIL AND
MILITARY.
A the return refers 10. and makes part Of H.
the charges and specifications, ann oithc opinion
ihu these charges and specifications must bc re
rardCd 10y this court part of the return fully
~ li they wcro copied bodily into u. Courts mar
tiai are lawful tribunals cNising hv the same au-
thuuty that other courts exist. Their iuTisdic-
ton Il Is true is limited and special. being
fined 10 military persons. charged with military
offences. over such persons, charged with often
cDl defined 3, law. their jurisdiction is complete
They are. iadecd. liable 10 the controlling
thuuiy which the civil courts have at all times
exercised ui preventing them from exceeding the
Jurisdiction given to them. GRANT rs. GoULD.
.d liINEN BLNNk STONES, Rep. lOt. WISE against
Nrrm.HS, ID Cr 566l They may. by appropriate
proceedings in the civil courts. be prohibited from
trying a civilian or carrying their sentence into
execution IA any case not warranted by law.
UrNpERGRASTS Law Pertaining TO Officers in the
Army, page 202; WOLFE ToNEsS case referred TO,
do. page lOD But in respect 10 persons subject 20
their authority and charged with offences subject
tu their Jurisdiction the civil courts do sit
courts Of error 10 review the regularity of their
proceedings. lntugmaity, therefore, Iu the pro-
cccdings ui court martial cannot be remcdicd
ur inquired into by a civil court.
rNrFNr on Tnr POWERS OF CoURrs-NARTIAL.
The ground work of the jurisdiction aud the cx-
tent Of the powers Of courts martial are 60 be
found Ia the Rules aud Articles of War. aud upsn
all questions arising ON them, the civil courts Of
the United States, are competent to decide: but
those articles do not alone constitute the military
Code they are for the most part silent On all that
relates to the procedure of military tribunals TO
bc organized under them.
Th procedure Is founded upon the usagcS and
customs ui war, upon the regulations prescribed
bv the President under the authority of Congress,
and upon old practice IN the army as To all which
points common law judges have no opportunity,
clthcr from their law books or from the course Of
their experience 90 inform themselves. 10 would,
therefore. Zoe most illogical 10 say nothing of the
Impcdimcnts 10 military discipline which would
thereby be lnterposcd, to apply a. the procedure
ui uris-marial those rules which are applicable
90 another and different course of practice. See
Luud hynman's opinion ia Re Poe 5th Barncwall
aud Adolrhus Reps. 5NS
rH TWO QUESTIONS ro UE CONSIDERED.
The questions, then. presented on this motion
have mo- relation 20 the regularity or irregularity
ul the proceedings of the court-martial before
which the rylajur has been arraigucd.
Those proceedings are IN fact. not before me,
and ll ghHN ] U1sglHrlu all nufhRrlfN ID rp-
view them. The questions which have 70 con
fldcr are two and only No-to wit; First, Do
thc charges show the rolator % be = person who
Is suhirci Co be tried by court-murtial Second,
DO She charges set forth o1cusc for which hc
can hc tried by such court Accordingly rs these
pcsttunsaTe answered ln the Affirmative or in the
negative, must thcrclator hp rcmaudch for trial
before the court martial or DISCHARGED from Gus
tudy.
Nur AIIECFp rHhr HENDERSON VA. IN rur a. s.
NilNNUN SERVICE.
Looking. now into the charge. ON which the
Iylaiur ha, been arraigncd before thc court mar
uIi uud a. was nowhere alleged that hc Is or
has been au officer soldier in the army, uT that
hr has ever been in the land naval forces or iu
lbr militia, ur that he has ever e., en- been camp
retainer. or that he has served with the armies m
the Hrld. IL Is simply rccitet that he was. lat"
contractor engaged an furnishing supplies 20 the
United States Government for the use OF the mil
tlary service thereof" And II is charged that,
,rll ui the adonscs dcununcct 10y the act OF Con
5rss approved March. e., O.
$50 tH,rDr or FRAUD. OR w1IrUI NEGLrCr or
Duty. As A CONTRACTOR.
Those charges and specifications are too long 10
hc here reproduced nor can their complete re
production hc necessary, since do not propose
Go question thcjr sut"ioucy IN form. Suffice II 10
lay they do NOT charge tho rclator with amy
fraud or wiliul neglect ut duty" in respect to his
alleged contract for supplies; or that whilst he had
charge possession, control. or custody OF any
money or other public property used OF be used
an tho military or naval service Of the nlted
States, he did with intent 10 dciraud the United
States, on WllliullN conceal such money OF other
property, deliver or cause 70 be delivered 20 any
other person having authority 60 rcCciN the same.
any amount ut such money ur other public pro-
thcatc or receipt" The charge, ON which ne was
arraiEu,d are wholly distinct from either OF these.
This cannot and will not be disputed. and has in
fact. been admitted throughout the argument Of
this case before me.
ACT uF CONGRESS- on WHICU Il HASIp TUr RIGHT
ru TRY HENDERSON nN A MILITARY Court.
The only act uf Congress referred Co In the
charges j. that of March "a, lsoa, and entitled
An act g. prevent and punish frauds upon the
Government of the United States .l2 stat,
UAiI
Ii provide
SrCrIuN J. That any person In the land OF ma
val io-ccs of the nitcd states or IN the militia
ir actual service of the jnIted States. in time of
war. who shall make or cause 20 be made. or pre-
sent OF cause 90 be presented for payment OF ap-
proNai Co or by any person ar officer IN the civil
or military service Of the United States, any
claim upon OF against the Goycrnmont OF the
United States, any department officer
thereof knowing such claim 10 be false. fictitious,
or fraudulent; any person in such forces OF ser
vice who shall. for the purpose ut obtaining or
hiding IA obtaining, the approval or payment 90