The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1867-07-16


the case at the bar.
If the plaintiff in error had been the
citizen or subject of a foreign or inde-
pendent power, aud had done the acts
in question by order of fhissuperior, as n
soldier, in an international war, no one
questions the fact of his immunity from
personal liability.
But where has the case been decided
that has applied the same rule to the
rebel in civil war?
Yes, one has been cited from Ken
lucky, aud while this court regards the
courts of kentucky rs high persuasive
authority, but by no means binding,
OmIv rs the decision shall be sustained
by principle or authority.
And tried by this rule l feef con-
strained to say that IL review OF the
case has failed to satisfy me of Its cor
rectness in principle or in accordance
with the authorities on which 1t pur-
ports to be based.
On the contrary, the converse is rath
er established by the counter decisions
of some of the courts of the same State,
viz: Lucas rs. Bruce, Ky. chy. ct. i
Am. Law Register new series) 95.
Norris Us. DOniphan, reported in
AM. Law Register June No. 1861,
new series: by the Supreme Court OF
South Carolina i'll the case of White Us.
McNeily and others, Bay IL, and also
ker Us. English, l Bay IL: by the Circuit
Courts OF the United States for the
District of Pennsylvania in the jeff.
DHViS!pirHcy cases; and for the District
of New York in the Savannah piracy
cases; by tho District Court of the
United States for the District of Massa-
chusetts in the case of the Amy War
wick: by the Supreme Court of Maine in
the case of Dole Us. Merchants Mutual
Marine Insurance Co. 81 Maine Il. 465;
and by this court i'll the case of Hood
Us. Maxwell; and by the Supreme Court
of the United States in the prize cases,
Black G73.
Aud Judge BulliLt, delivering the
opinion of the Court of Appeals of
kentucky in the case of Norris Us.
Douiphnn, suys: 1.-THE law of Nations
has no obligatory force upon the
sovereign in dealing with his subjects.
He may disregard and establish diff
ierent rule; and If he does so, those
within his Jurisdiction must observe
the rule so estH blished, however it may
conflict with the usage of Nations"
And again he says: "Civil wars being
in many respects of the same nature
as public wars, the right TO treat armed
rebels, in many respects, as If they
were alien enemies, necessarily results
from the power. to make war upon
them. The facts. that prisoners are
exchanged, that flags of truce are re.
spected by the opposing forces, that
armed rebels may be lawfully slain in
battle, that their arms, ammunition, and
stores may be lawfully taken and used
or destroyed, that articles contraband
of war being sent to them, may be
lawfully contiscated, that their forts
may be lawfully bluckaded, and that
their property on the high seas may be
lawfully seized as prizes of war, these
fn that civil ynFSnrn. in MANY
respects, the same ms wars between
seperate Nations; and they prove moth
We hnve said the same rule applies
in both wars-so far, and so far only,
us the reason and necessity OF the case
require.
What then is the reason that the SOL
dier in an international war is not re-
spousible personally? We answer, be-
cause the war is not his quarrel but his
sovereiEn's, and he an humble iustru-
ment i'll the hands of that sovereign
whom he is i'll duty bound to obey.
1t would be contrary, therefore, to the
first principles of justice to punish him
instead of the sovereign.
Again, the sovereign in prosecuting
the war or in treating tor peace, is sup
posed to secure indemnity for his in
jured subjects as we'll AS himself, from
the other State,
But no such reason can apply in the
ease of rebels ngninst their lawful gov
ernment, when they have been reduced
by force to obedience.
Instead of the law suppOsing the reb-
ell to be influenced by dnty and con-
strained by riGhtful authority to take
up arms, it supposes him TO be guilty
of treason i'll doing so, which the law
regards as the highest crime.
And when the rebellion is suppressed,
ho aud hig iniIFp1 subjects
have no chance of redress or imdenni-
ty as from IL hostile State. In the eye
of the law the success of the sovereign
establishes beyond controversy, i'll all
his courts, the criminnlity of the rebel
lion, whatever salvo the rebels may
choose to lay to their consciences.
And if there was no personal respon-
sibilily, then there would be wrong
without remedy, government with
out protection To its people, but rather
Il screen TO its enemies.
1t would be to give immunity to crime
and every species of robbery, encour-
agement 10 traitors and punishment to
patriotism.
The reason and necessity, therefore,
which required immunity in the one
case, not only do not require it in the
other, but absolutely forbid it.
And since such rule would violate
the principle on which all rightful au-
thority i'll government is maintained,
and Justice enforced, it would seem to
require an express ratification by all
the nations of the earth to make 1t OBJ
ligatory as part of the jus gentium.
Again, much has been said in the ar
gument about sovereign and belliger-
ent rights. take it to be a fact not con-
troverled, that every government de-
serving the name, has the sovereign
right TO suppress rebellion by all the
niy,il U'h
that fails, the belligerent right to do 1t,
by military force: in other words, by
war. That the latter is cumulative and
not Il Limitation of the former, and may
be both exercised mt the same time, and
often are.
And further, that the established gov
ernment in asserting its belligerent
rights in suppressing n rebellion, there
ny gives to the rebels no rights which
they did not have before, further than
that government may choose TO accord
corresponding privileges to those
rebels.
Nor does the law OF nations confer
any rights upon such rebels which the
established government refuses TO con-
cede either in express terms or by neces-
snry Implication from its cause ana
dealings in the war.
By appealing to its belligerent powers
the established government may OBJ
tain rights 1t DID not nave before. Dut
does not lose any of its sovereign pow
ers that it had before.
For instance, by war the property OF
n loyal man in the hostile territory,
would be liable TO capture, whether the
owner resided in the hostile district or
in loyal State, and so likewise the
property of loyal citizen wherever
resident, going 10, or coming from the
hostile districts Cranch 10. Wal
lace; Mrs. Alexander's case; . Black G73.
But even this right of capture, the
established government may not choose
to exercise, and until so done the rlgnIs ,I