The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1867-07-17
COURT OF APPEALS
Opinion of Hon. q. IIOOmiS ON the
Que lion of BelIIgerent Rights.
Delivered July 18th, 1867
ENocu HEDGES, Appellant, u. JACOB PRICE,
Appellee.

ENocH HEDGES, Appellant, u. JACOB PRICE
Appellee.
l fully concur in the opinion just an
nounced. In none of the pless II is
averred that the appellant in commit
ting the trpEpasses complained OF, was
/ AT the time acting from compuisiun
/ against his will, or while under uuress.
The ayerment that he "was II soldier in
the service Of the Government called
the government OF the Confederate
States of America, cannot be consider
{ ed as meaning or implying that he act
ed involunt8rlly as such soldier, in
/ the absence OF apt and positive words
/ to that effect. Ii is neither claimed IN
the argument nor is there anything IN
the pleadinEs tending even 10 show that
. his becoming "A soldier in the rebel army
. was not voluntary act on his part, or
I that he did net voluntarily place him
self in Il position to become the subject
I Of those orders and commands OF ms
superior officers, which he now pleads
/ in Justification of his acts.
Much of the conflict of opinion that
exists among the learned counsel as 10
I the rights and imInunIties OF rebels un-
der the law of nations, arises mainly, l
think, from Il failure to recognize the
fact that international law, though
based upon principles of humanity
though breathing a sound and wise
. policy, and though atfording valuable
guides to governments in their political
dppartmentS, yet lacks some OF the es
senIiHl characteristics pertaining 10
municipal law AS technically under
stood, in this: it is not II rule of action
prescribed by superior to an inferior.
which the latter is bound to obey. Sow
ereigu nations may adopt or reject II nj
pleasure, and in actual practice never
hesitate to do so. To the great credit
however of Christian and civil
lied nations be it said, that even
i'll rigorous prosecution OF their
wars they seldom make fragrant
departures from the humane
principles recommended SO forcibly by
| The great writers on international law;
I but this is not proof OF couIpuision on
their part to recognize and obey 1t.
! 1.-THE policy OF foreign nations constl-
Z tutes supreme law, then courts must
ever remain in uncertainty as TO their
respective statutes, for these are to be
controlled and modified by IA constantly
VARYING policy. Our legislation must
be interpreted by the light of opinions
prevailingunde forms of government
differing from ours: opinions, 100, de-
pending in great measure for their
l stability on the interest aud ambition
of rulers. But whatever may be
claimed al good policy for the govern
nent of armies, Pcndente bctLo, or what
ever political powers nation may
choose to exercise. these are not sub
iects for courts to consider in their eI-
forts to expOund the law.
The citations from the various wri-
ters on international law in support OF
The propoiitiOn that the same rules and
practices governing the conduct OF ar
Inies AT war between deterrent nations,
apply equally i'll ciUiL lCurS, most clear
" refer 10 the period of actual hosil!i-
ties, and Ibis, for the reasOn assigned,
namely: In order 10 mitigate the nor
rurs of war, and relieve il as much as
is possible from its terrible enOrmltles.
The reason for the observence of the
principle+ OF humanity aud iorbearance,
exists thu same in civil, as i'll national
wars. Bit the conduct of the victori-
Gus party towards the conquered enemy
after the war has terminated, may be
very different in the one case from the
other.
After a war between two nations is
over, the private soldier of the conquer
ed nation il not held accountable by the
victor Tot legitimate acts OF warfare,
although such acts would amount 10
trespAss, theft, robbery or murder, II
done in q time OF peace, because THESE
acts having been done in obedience 10
the comnuHnds of his sovereign, while
engaged i'll war, he would, II
held accountable for them afterwards
appeal Il, his sovereign for protection !;
the sovereign would demand his dis
charge, and if refused such refusal
would he just cause for renewal OF
hostilitics.
The soldiers constituting the armies
of IA foreign nation, at war with us Tor
example, owe allegiance 10 their Sover-
eign nj are compelled to obey his COM
mands whether willingly or not: on no
principle of justice then can they be
held personally accountable for leglti-
mate acts of warfare, because by force
of their righiful allegiance they are
without option in tie premises.
But in the present case of an unsuc-
cessful rebellion no such reasons exist.
The Insurgents were acting In violation
of express law from the beginning, and
though during the actual continuance
OF hOsliIities they were treated WIN
that forbearanCe generally observed
between different nations at war, but
now when hostillties have ended, and
the so-CalIed Confederacy ceases have
an existence, and the chief insurgents
are in prison or held at the mercy OF the
rightIuL government, that government
may deal with The privates and officers
of the rebellion us it may seem proper ;
il may pardon the former, and right
fully hang the latter; may punish eth
er or boIh, or grant amnesty to all.
This il may do in the exercise OF its
sovereignty. In vain would the rebel
| soldier call upon his annihilated gov
eminent for protection: in vain would
he expect renewal of hOstilities by his
rebel chief if the victorious government
persisted in holding the insurgents per-
sonaIIy accountable for their treason.
Hence it is plain that the policy OF ma
lion in dealing with those who nave
been at war, or in revolt against it, Is
modified by circumstances; and courts
cannot give Interpretation 10 laws,
and shape private rights SO as TO
conform with an ever varying political
policy. Laws to be of value must be GER
lain, and of u nature 10 be understood.
/ The existence ofwHr may cause the exc
cutiou OF Fthe civil laws to be temporarily
suspended, but they are not thereby
abrogaled. The forbearaDce and mod
GRAFTON of a nation during hostilities
cannot be afterwards construed into Il
REIMBURSEMENT of rights that existed
before the war, nor Hu acknowledge
meDl of the justice of the enemies cause.
If the facts set up in these pleas
amount to justification of the tres
pass complained OF. then loyalty to the
Government and fidelity TO the laws,
occasion positive danger to the citizen
in times OF great puolic cOmmotion.
The insurgents secure immunity to
themselves, in proportion as their num-
bers are formidable, their deeds unlaw-
full, and as they increase their own ne
cessities for converting The private pro-
perty Of unOGendinR citizens. While
thev are few in number, and their deeds
oflawlessness limited, they are regarded
as thieves, robbers, or murderers, and
treated accordingly. But when their
numbers are SO multiplied Ms not TO be
auellei by the local authorities, thei:
depredations and atrocities s. vast as
to create widespread terror in the
| land, then 1t is maintained they are to
| be treated with consideration-entit
| to respect If successful in their resis-