The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1867-07-16
If The sovereign granting the pardon


nor in any other courts.
Admitting, then, as the proposition
seems TO suppose, the rebel soldier To
have offended against the United States,
and to be responsible therefor TO the
Government, il is not perceived on
what principle that offence and Tespon-
sibility can be made IL ground to defeat
the right of the injured citizen to re-
dress, or release the offender from liza
bilitv for his acts. 1t is certainly very
competent for the Government to par
don the public offence, but know OF
no way by which it can discharge the
obligation or liability of the party to
make restitution for the damages he
has done to private citizen, but by
paying the damage done by the person
purdOned. 1t is certain the pardon has
no such effect.
By the law of nature as well as by the
civil law, the right of personal security
and private property exists, and who
ever invHdes Ihosp rights intlicts an
injury upon the owner which II Is the
duty of the government, through the
forms OF law, to redress.
Ip every we'll ordered government
these rights are sHcredly guarded,and Il
complete remedy furnished by action
in the courts Tor their violation.
From these rights spring duties which
are correlutive. The law therefore Is
but tho mandate OF the Government,
commanding what is right and prohibit
| ing what is wrong, addressed TO those
who are bound to obey II. The parties
were both citizens, and ns such both
are subject 10 the same law.
This right OF property in the citizen
has been violated, and the party who
did il, 20 avoid making restitution or
compensation, justities the act upon the
| ground that he was II citizen and soldier
| of another government, viz: OF the con-
federal States, so called, and acted uu-
der its authority.
According 10 the principles laid down
| by this court i'll the case OF Hood Us.
| Maxwell l. w. Va. 2l9, there could be
no rightful or lawful government of the
| description pretended, and that all who
| aided and abetted it were in the wrong,
and that wrong doers cannot screen
each other from the consequences OF
! their wrongful acts by setting up their
| pretended or usurped authority. Nor
has the Government of the United
| States by word or net ever acknowledge
| ed, or recognized the sO-called cOnfed-
eracy as ii government, or nHtiOn-nor
! in any other way than as II powerful
combination of citizens in a state of in
surrection and rebellion against their
| lawful government. And the above
views are corroborated by the reason
! ing and principles of the following
cases: Luther Us. Borden How. l;
Z Mitchell as. Harmony 10 How. l2o;
{ Rose rs. Himely Cranch. 2il; Filkins
( Us. Hawkins, decided by the Circuit
Court of Arkansas, january; No. 1856,
| American Law Register, Hlldreth as.
J. j.; Marshall 2O6.
II is claimed by the plaintiff in error
TINT by the law of nations the soldier is
not responsible for his acts done Ud-
QreIltO beItO, between two sovereigntles
which are the belligerents, and which
must both be taken TO be i'll the right.
And this is not coutrovcrted.
But it is further claimed that in q
civil war the same rules apply, and in
uSmuch as the late rebellion swelled 10
the proportions and assumed the char
acter of evil war, upon grand scale,
that, therefore, the acts of the party In
question were right, and whether right
or wrong he is not responsible, because
the acts were done by him as II soldier,
in civil war, by order of an officer,
under the authority of the sorcalled
Confederate Government.
Now irit be true that the same rules
are to be applied in civil wars and in
ternHtiOnal wars, or rather, If the same
rules are 10 be applied to the estab-
Iished and rightiui government-iu n
civil war resulting from the effort 10
suppress n rebellion declared TO be un-
lust and wicked, and by the result
proved TO be SO, and the rebels thus
suppressed, then unquestionably would
the party here stand justified upon the
proposition assumed by the plnlhtlu III
error.
And this brings US to the cOnSidera-
ton of the ID proposition, which is the
question of great interest now perpleX-
ing the minds of the people, bar, and
bench, more particularly in the border
States.
But is it true, that the same rules
apply as supposed i'll the sense ana TO
the extent chained?
Nnttel and other authors are cited
stating the doctrine in general Terms.
The former says, book ;, chap. Is, sec.
2gI, that "the common laws OF war,
those maxims of humanity, mbdern-
ton, and prObitY, which we have before
enumerated aud recommended, are in
civil wars, 10 be observed on both
sides" Aud again, 'should THE SOW
ereign conceive lie has IA right TO hang
up his prisoners as rebels, the opposite
party will make reprisals; If he does
not religi0usly observe the capitula-
tiOus and all the conventions made with
his enemies, they will no longer rely
on his word; should he burn and de-
stroy, they will follow his example; the
war will become cruel and horrid; its
calamities will increase on the nation"
But here it may be well to bear in
mind the remark of Chief Justice Mar
Court in the case of Rose as. Himely,
4th Cranch, 2il, i'll which he said: "ln
support of this argument the doctrines
of FRttel have been particularly refer
red 10. But the language OF that writer
is obviously addressed TO sovereigns,
not to Courts"
But, it is equally true that Vattel and
other elementary writer's on the law of
nations also lay down the doctrine with
equal clearnesS, that when rebellion
is suppressed, the sovereign or esiab-
lished government may punish the in
surGents and make examples OF the
instigatOrS or rinEleaders and such
others as it may be thought proper TO
reward with the punishment due TO
their deserts; in the words of Vattel
"may bring them TO legal trial, and on
conviction, punish them." This would
be strange language TO hold of soldiers
or prisoners in an international war,
and utterly inconsistent with the doc;
trines he had laid down with regard to
them. He says, again, "it will be wise
in the Prince to secure his prisoners
till, having restored tranquility, he Is
in II condition of having them tried ac-
cording to the laws" But who ever
tried prisoners OF war according to the
laws in any but a civil war or insur-
rection? None. He also says, "As to
the other effects which the law of ma
tions attributes to public war (see chap.
II, OF this book) and particularly the ac-
QUESTION of things taken i'll war; sub
iects who take arms against their SOW
ereign without ceasing 10 acknowledge
him, cannot pretend to these effects"
Such is the rule in reference to rebels
who take aims against their sovereign
| without ceRsing to acknowledgelhim;
and the same rule equally applies to
those who. repudinting the sovereign
authority, take arms aud fail at estaO.
fishing attempted independence, at
least after the suppression OF the rebel