Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-06-12
FHE rRsAIx' + cIFIzENs BY MILI-
rAaV GOM NlSSHARx

TAsY COMMIssIaNs $3.50
The opinion of Attorney Genera
Hoar, which has justbeen published
in the case of Weaver, a citizen o
Texas, tried and convicted of muir.
der by military tribunal held in
Sthat State, September, 1868, refers
to several cases which have been
decided in the Supreme Court OF
the United States as sustaining the
various propositions of his argu-
ment that military commission, al
the time and place indicated, had
jurisdiction over a citizen not in
the military or naval service,
charged with the murder of another
citizen, and under indictment and
arrest in the State courts therefor
70 show that "the territory pos
sessed by the Rebels might law
fully and constItutionally be treated
by the United States as enemy's
territory" Mr. Hoar quotes from
the Supreme Court in the prize
cases, viz: at is a proposition
never doubted that the belligerent
party who claims to be sovereign
may exercise both belligerent and
sovereign rights" 4 "All
persons residing within this terri
tory whose property may be used
to increase the revenues of the hos
tile power are in this contest liable
to be treated as enemies, though
not foreigners. They have cast off
their allegiance and made war on
their government, and are none the
less her enemies because they are
traitors" The Milligan case is next
referred to as conceding the right
to govern by military rule until the
law can have its free courses. This
case, 1T will be remembered, was
that of a citizen of Indiana, one
Milligan, who, in October, 1864,
was arrested by the commander of.
that military district, tried by mill
tary commission and sentenced to.
be hung. In the opinion of the
Supreme Court it was said : '1f in
foreign invasion or civil war the
courts are actually closed, and it is
impossible to administer criminal
justice according to law, then on
the theatre of active military opera .
tons, tohere sOar really PreUaiIS,
there is a necessity to furnish
a substitute for the civil authority
thus Overthrown to preserve the
safety of the army and society
and as no power is left but the mil
itary, it is allowed to govern by
martial rule until the laws can have
their free course" But the court
adds; "As necessity creates the
rule, so it limits its duration; for if
this government is continued, it is
continued after the courts are rein
stated, it is a gross usurpation of
power. Martial rule can never ex-
list where the courts are open and
in the proper and unobstructed ex-
ercise of their Jurisdiction" As
the courts were and had been open
in Indiana, and Milligan was not in
the military or naval service, the
Supreme Court ordered his dis
charge. Mr.. Hoar next quotes
from Chief Justice Chase in the
case of Texas vs.. White and others,
decided at the late term of the
United States Supreme Court, in
volving the sale of United States
bonds belonging to the State early in
the late war, TO show that Texas has
been 50 in armed hostility to the
government As TO be subject to mil
itary law when possession was re-
gained by the military power of the
United States The Chief Justice
had said
(" No one has been bold enough to con
tend that, while Texas has been con-
trolled by government hostile to til,
United States and in utilization with {
hostile confederation, waging war upor
the Uuited States, Senators chosen by
her Legislature or Representatives elect
cd by her citizens were entitled to seat
in Congress, OF that any suit instituted
in her name would be entertained il
this court All admit that during thi
condition of civil war the right Of tn
State as a member, and of her people a
citizens of the Union were suspended
The government and citizens Of tn
State, refusing to recognize their consti
tutional obligations, assumed the char
acter of enemies and incurred the con
sequences Of rebellion
The matter to which the Chic
Justice was referring, however, oC
Cured during the war, and it is
question, says the Baltimore SHr
whether it be applicable in cas-
occurring since the war, as late a
1868, as did this case of Weaver
Yet Mr. Hoar SO applies it, and III
dertakes next TO show in substanc
that the rights Of war have not VI
ended so far rs Texas is concerned
and contends that it is competer
for the nation to retain the territor
and the people which have once a!
summed a hostile and belligerer
character "within the grasp Of wal
until the work Of restoring the r,
lations Of peace can be accon
pIished and that it is for Co
gress, the department Of the n
tional government to which Il
mower TO declare war is entrust