
    EX PARTE RICHARD R. PEEBLES, AND OTHERS.
    Applicants were arrested by order of Maj. Gen. Magruder, Commander of District of Texas, &c., on a charge of treason and conspiracy against the Confederate States. Writ issued on the 7th of March, 1864, by, and returnable before the Supreme Court. Return specified at length the grounds of the charge of treason and conspiracy. Case submitted on petition and return, without the introduction of any evidence in proof of the charges. Held, that the applicants are entitled to be discharged.
    A military officer, charged with the defence of any district of the country, may arrest any one who, by his acts, has made himself a public enemy ; but his power to arrest, can extend no further than this.
    A citizen who commits treason, thereby makes himself a public enemy.
    Treason can only be committed, by levying war against the government, or adhering to the enemies of the government, giving them aid and comfort.
    When a military commander arrests a citizen, not belonging to the army or navy, or to the militia when in actual service, he holds such citizen, at all times, subject to the demands of the civil power; and when the civil power takes the citizen from the hands of the military officer, if no evidence be offered to make good the accusation against the citizen, he is entitled to be discharged.
    Pending trial, motion was made to remand the applicants to the custody of the military authorities. Motion sustained by note of commandant of post at Austin, stating that he received from Major Gen’l Magruder, an order to take charge of, and detain the applicants, by order of Lieut. Gen’l Smith, Commanding T. M. D.; said order being issued in conformity with a recent act of Congress, providing for a suspension of the writ of habeas corpus ; also, by an affidavit of said post commandant, stating, in substance, what was stated in his note addressed to the Court; also, by an affidavit of Major Guy M. Bryan, A. A. G., to Lt. Gen. E. K. Smith, that Maj. Gen. Magruder was directed by Lieut. Gen. Smith, in October, 1863, to hold and detain the applicants, upon representations made by said Gen. Magruder to Gen. Smith; also, by a letter to Col. Cone, from Edmund P. Turner, of the staff of Maj. Gen. Magruder, stating that he was instructed by Gen’l Magruder to say, that he wished it to be represented to the Court, that in directing the commanding officer at Austin, to detain the applicants, he acted under the law of Congress, and in accordance with the order of the Lieut. General commanding the Department. Held, that the evidence is not legally sufficient to establish the fact, that the applicants are detained by order of the General commanding the Trans-Miss. Department.
    Under the provisions of the act of Congress, suspending the writ of habeas corpus, the proper evidence, that a party has been arrested by order of the President, Secretary of War, or the General officer commanding the Trans-Miss. Dept., is the certificate, under oath, of the officer having charge of any one so detained, that such person is so detained by him, as a prisoner, under his authority.
    It seems that other evidence may be offered, to establish the fact that a party is detained by such authority.
    
      Pending trial, applicants submitted a statement under oath, that they are informed that this Court will order their discharge from their present custody ; that the post commandant at Austin intends to re-arrest them, as soon as they are discharged by the Court, in obedience to orders which had already been shown to the Court; and asked the interposition of the Court to protect.them against an intended unlawful arrest. Held, that these facts do not warrant the interposition of the Court.
    Under the late act of Congress, suspending the writ of habeas corpus, the General commanding T. M. D., has the right to issue an order to arrest and detain parties charged with the offences enumerated in the statute, and it would be the duty of the Court to respect it.
    Tried before the Supreme Court.
    
      John Hancock, for applicants.
    
      C. L. Robards, Horace Cone, and Spencer Ford, for respondent.
   Bell, J.,

delivered the opinion of the Court.

Applicants discharged.  