Knoxville weekly chronicle. [volume] (Knoxville, Tenn.) 1870-1875, 1870-10-26

aS lstitying he Federal army, under Simi-
lar circumstances and this presents the
question Gs 20 whether in the recent war.
there was any difference in the rights of
the two belljgerents as to what acts each
might perform in the prosecution of the
various operations Of the war in which they
were engaged The solution Of this ques-
ton depends upon various considerations;
and, as there are other cases before Us in
which similar questions are presented, we
proceed 10 state our conclusions, and the
process by which we have arrived at them,
at greater length than would otherwise
seem to be demanded by the circumstances
proved in this case. Aware that some CON
fiict has existed, and still exists, in judicial
opinions as well as in the legal profession,
in regard to various questions arising out
OF the war, and differing, as we do, to some
extent from the views promulgated by our
immediate predecessors, it Is alike respect
tul to others and just to parties litigant
that the reasons for our conclusions should
be presented with more than ordinary elab
Grafton. .f<
When the trainers of the Constitution of
the United States conferred upon Congress
the power Ito provide for calling forth the
militia to execute the laws of the Union, sup
press instructions rnd repel imasions; "
and when Congress passed the Act of 1895,
chap, SO, II L. 5. Statute at large 424)
and the act Of 1907, chap, SO, Ibid. 4l3,D
authorizing the President to call forth the
militia, and employ the land and naval
forces, Tor the purpose Of executing the
laws and suppressing nsurrecion. it can
not be reasonably supposed that either the
lnembers of the Convention, or Congress,
had II n contemplation that any insurrec-
ton or rebellion, would ever attain the gi-
gantc proportions Of the late civil war
and consequently, no provision was made
dor the contingency ofJcull wa. il contra
distinction to an insurrectou, or rcbcii-
ion, as defined By Natel and recognized by
the Supreme Court OF the United States,
In the Pnze cases q Black G6I-1. In the
absence OF any constitutional provision, or
Congressional enactment, he Courts aud
the text writers, have rosortod, to the law
OF nations, for the purpose OF obtaining u
solution OF difficult questions growing out Of
the war and, jnthe case citcd-which was
determined while the war wa, pending
the contest was declared to be not an iusUr-
rection, or rebellion, merely, but " the
greatest civil war known in the history of
the human race ID, 669.) In that ease
it Is said that Under Che very peculiar
construction Of this government, the cti-
zens owe supreme allegiance TO the Federal
Government; they owe, also, aQualiiea al
legiance t9 the State in which theg are
domjcilet. Tlieir person and property are
subject 60 It's laws. Hence, in urgonjzing
this rebellion, .hoy have acted as Smres
claiming t1 he soyereign over all persons
aud property within their respective limits,
AID asserting a right to absoye their citl-
Zans from their ullcgianca to the Federal
Government. Several OF these States have
combined to form a new conteieracy, claim
.it- TO be ac,uowiedg D.. the world as a
sovereign State Their right to do so Is
now to be decided by wager Of battle. The
parts and ycrrtOTy Of clul Of these States
are held in hostility to the Genera Govern
ment II IS no loose, rR0rgmized iRSuTycc-
tioa having no defined boundary or posses
sion. 1t has a boundary marked by lines
of bayonets aud which can be crossed only
by force South of this line is enemies
territory, because it is claimed and held in
possession by "A hostile and belhgerent pow
er, > Black G73-4.
Vattel, whose work on the Law Of
Nations is the very highest says that,
" when nation becomes divided into two
| parties, absolutely independent and no lon.
ger acknowledging common superior, the
two parties stands on the same ground, IN
eye,g rcsDect as O public Jrpr bct,0eea tiCo
| different nations Whether republic be
split into two factions, each main-
taining that it alone constitutes the body
| Of the State, or d Kingdom be divided
| between two competitors for the crown, the
! nation is severed into two parties who will,
| mutually, term each other rebels Thus,
there exists, in the State, two separate
| bodies, who pretend TO absolute independ-
ence, and between whom there is no judge.
! They decide their quarrel, by arms, as two
! different nations would do The obligation
| to observe the common laws Of war to-
ward each other is, therefore, abso-
! lute--indispeusabl binding, on both par-
ties, and the same which the law Of
nature imposes on all nations in transactions
between State and State Wat, hook
! iii, chap. Is, up 426-427, sec 295. 1t is
! thus shown that civil war Is in it, tech
nica sense, public aoar and that while
! ir irooutains, the belligerents, 50 tar as the
laws of war ae concerned, maintain the
same relation towards each Other, as inde
pendent nations, in a public, nr re vuiar
war. The same great author says there
are certain rules adopted by the voluntary
laws Of nations, which m9ybe briefly stated
as follows lst That regular war, as ID is
effects. is % be accounted just on both
sides 2l. That the justice OF thu cause
being reputed equal between lwo enemies,
lrhatace' IS 14'upUe8 10 the DHef nrtue NJ
70 state Of tgar ~ ,tsD permitted ~ M oHrr
And, 3D. .ha- thu voluntary .pw o.. ma