Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-10-29

of course crushed, and to all intents and
purposes peace was restored. There may,
in the minds of those lately in rebellion,
still remain some discomfort on account Of
their defeat, but, nevertheless, there is no
open, no organized hostility, or opposition
to the government or laws; and it may be
safely assumed that peace is restored, and
this assumption is fully verified by the fact,
that the courts are open and in the full ex-
ercise Of their legal and proper functions,
an evidence, always, that the civil. and
not the military authority, is in the ascend
ant. Independently Of the question whether
1t was necessary 10 make declaration OF
peace or not, when we see the country re-
stored to condition of peace, the civil laws
having their proper sway, the courts OF
Justice opened to hear the complaints Of
citizens, and TO punish offenders against the
laws, | cannot see upon what principle ii can
be claimed, that the war is still going on.
The courts of the country, in the judgment
Of this court, may take judicial notice OF
the fact, that war does not exist, and con-
seauently that peace has been restored, es~
pecially when the Executive Department
has so declared.
sing, would seem ridiculous, when We see
all around us thesevidences of peace. To
everybody it is apparent that the country
is at peace. Ask any one, any citizen, the
most humble, if you please, and lie will
tell you that there is no longer any insdr-
rection or rebellion in the country, but
tnat there is peace Everybody through
out the land is Impressed with that idea,
and vet. il il insisted that this court shall
c.ose its judicial eve sagainst fact which
is apparent 10 the whole country, and de-
clare that we are still at war-that the
military authority is still in the ascend
ant, and that the civil must be subject to
that military power, until some formal dec
laration of peace is made by the Congress
of the United States! The fact of peace is
80 impressed upon me, from the eonsidera-
tions stated, that i cannot bring myself TO
pronounce iudicially that there is war at
this time in the United States. If the war
has terminated, the parole, according to
the views / have expressed, terminated
with it, and with the termination of the
parole, the control of the military over the
citizens, for ofienses which they may come
init against the laws of the United States,
or of any State, is supplanted.
But there is another point of view in
which this matter may be considered. Ii
the military authorities have any right to
hold party and to punish him, even sup
posing that the war still existed, they must
punish him for a military and not for a
fciua offense. The offense of which it is
declared the petitioner has been 'guilty-is it
military offense or an otiense against the
laws of the State of Tennessee? F? If ac-
cording to the views before expressed, peace
had not been restored, and the country was
still in state Of war, and this party had
taken up arms against the government Of
the United States, it would have been yio.
lation of the parole in that part fit where
in he solemnly obligated himself that he
would not take up arms against the United
States. But the latter clause, that he will
obey the laws Of the State where he resides,
Is NOT strioiIy-a part of ihe parole, but is
added as condition upon which be viii
not be disturbed by the United States au-
thorities.
His obligation is, that he will not taksup
arms against the United States, and upon
assuming that, he is permitted TO return to
his home, with the promise that he shall
not be disturbed by the United States au-
thorities so long as he observes the obliga-
tion not TO take up arms, and obeys the laws
| of the State. This latter clause does not
constitute part of the military parole, but
| is intended as a mere protection to him from
prosecution or arrest by the civil or militia
~ authorities so long as he conducts himself
as a good citizen. 1t seems to me that it is
a condition upon which he shall be per-
mitted to remain at large.
1t was not the province of the military
commander to impose upon him any obli-
CATION not strictly military in its charac-
ter, but he might properly impose condi-
tions upon the non-observsnce Of which
the paroIed party would forfeit his right to
be and remain at large upon his parole
and that, in the Judgment of this Court, i:
| the only effect of the latter clause of the
parole in this case.
| II, during the existence of the war, thi!
party had broken the conditions aforesaid
of his parole, he might have been arrested
and held for trial by the military; If ht
took up arms against the United States
and by the civil authorities for his treason
or any other violation of the laws, either o
the State or of the United States, of which
he might have been guilty prior to the
date of his parole. But it is repugnant t
onr sense of Justice and right, during {
time of profound peace, that the military
authorities should institute commission
TO try and punish citizens for a violation O
the laws, State or Federal, when the courti
are open for the trial Of all such of
tenders. 1t would be giving an ascend
ancy TO the military power which th'
court deems against the spirit of oul
institutions and a palpable infraction 0
the ffth and sixth articles of the amend
ments to the constitution of the United
States.
According to the return made in thi
case, if the petitioner has been guilty o
anv violation of law, he has ofiende,
: against the laws of the State of Tennessee
and was certainly not in armed opposition
tothe laws ofthe United States and tskini
the view which the court has herein ex
pressed, nothing less can be done than {
=. discharge the petitioner from the custod
, in which it appears that he has been,
, now illegally detained.
The court then caused the following {
: be entered
In he Matter Of w. A. MiHikin, Petitio
! for Habeas C5rpus.-This day this cans
: came on for further hearing, and the office
4 in charge of the prisoner having so amende
2 his return, in obedience to the order OF th
$ court, as 20 show the facts constituting III
: alleged violation Of the parole, the scour
2 on consideration of the return so amendes
4 being of opinion that the military paro
r of the petitioner was limited TO the dnratio
e of the war, and the return OF peace operate
; a. termination Of the parole; and bein
0 also OF opinion that the suppression {
i the insurrection, the submission OF tt
e parties engaged in it to the authority
a the government and laws of the Unite
e States. and the restoration OF the cour
Y to their legal and proper functions, SUI
1 planted the jurisdiction of the miiitar
: over crimes and ofienses committed again
The laws of the United States and of Il
e respective States; and the President of Il
. United States having, in May, 1856, d'
e olared in substance, by his public proclaim
o ton. that.tEe insurrection was suppressed
4 and that there was no longer any resls
s ance TO the authority and laws OF Il
n United States, and in effect, that the W;
= was at an end and peace restored to Il
4 country; and Congress having recogniz'
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