"But when a nation becomes divided into two parties absolutely independent and no longer acknowledging a common superior, the State is dissolved, and the war betwixt the two parties, in every respect, is the same with that in a public war between two different nations. Whether a Republic be torn into two factious parties, each pretending to form the body of the State, or a Kingdom be divided betwixt two competitors to the Crown, the nation is thus severed into two parties, who will mutually term each other rebels. Thus there are two bodies pretending to be absolutely independent, and who having no judge, they decide the quarrel by arms, like two different nations. The obligation of observing the common laws is therefore absolute, indispensable to both parties, and the same which the law of nature obliges all nations to observe between State and State."
"If it be between part of the citizens, on one side, and the sovereign, with those who continue in obedience to him, on the other, it is sufficient that the malcontents have some reasons for taking arms, to give this disturbance the name of civil war, and not that of rebellion. This last term is applied only to such an insurrection against lawful authority as is void of all appearance of justice. The sovereign, indeed, never fails to term all subjects rebels openly resisting him; but when these become of strength sufficient to oppose him, so that he finds himself compelled to make war regularly on them, he must be contented with the term of civil war."
Clause of section 293:
"A civil war breaks the bands of society and government, or at least it suspends their force and effect. It produces in the nation two independent parties, considering each other as enemies, and acknowledging no common judge. Therefore, of necessity, these two parties must, at least for a time, be considered as forming two separate bodies—two distinct people. Though one of them may be in the wrong in breaking up the continuity of the State—to rise against lawful authority—they are not the less divided in fact. Besides, who shall judge them? On earth they have no common superior. Thus they are in the case of two nations who, having dispute which they cannot adjust, are compelled to decide it by force of arms."
First clause in sec. 294:
"Things being thus situated, it is evident that the common laws of war, those maxims of humanity, moderation and probity which we have before enumerated and recommended, are, in civil wars, to be observed on both sides. The same reasons on which the obligation between State and State is founded, render them even more necessary in the unhappy circumstance when two incensed parties are destroying their common country. Should the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals; if he does not religiously observe the capitulations and all the conventions made with his enemies, they will no longer rely on his word; should he burn and destroy, they will follow his example; the war will become cruel and horrid; its calamities will increase on the nation."
Remember you are an American Jury; that your fathers were revolutionists; that they judged for themselves what Government they would have, and they did not hesitate to break off from their mother Government, even though there were penalties of statutes with which they were threatened. And remember, also, that from the beginning of your fathers' revolution, they claimed that they were not liable to the treatment of offenders against British statutes, but that the Colonies were a nation, and entitled to belligerent rights—one of which was, that if any of their army or navy fell into the hands of the British army, they should be held as prisoners of war.
Your fathers never admitted that the continental army were liable to punishment with the halter, if taken prisoners.
To be sure, the statute of Great Britain, literally construed, so provided, but the law of nations had supervened, and rendered that statute no longer applicable. Vindicate your respect for your fathers' claims, by extending the same immunities to the prisoners at the bar, whose situation is analogous to that of our fathers.
At the commencement of the Revolution, preceding the Declaration of Independence in 1776, the Colonies became each a separate sovereignty. That became the status, with some, without documentary declaration to that effect; but most of them have left on record positive enunciations of their assumption of independence and sovereignty as States, unconnected with the proceedings of any other State. [ [4] ] They entered into a Confederation as independent States, declaring, however, distinctly, in a separate article, that each State retained its own sovereignty, freedom, and independence, and every power of jurisdiction and right not expressly delegated to the United States in Congress assembled. And at the close of the war, when the treaty of peace was made, recognizing the independence of the Colonies, each State was named individually. I have never been able to discover when and where, since that period, any State has surrendered its sovereignty, or deprived itself of its right to act as a sovereign. The Constitution suspends the exercise of some of the functions of sovereignty by the States, but it does not deprive them of their power to maintain their rights as sovereigns, when and how they shall think best, if that Constitution shall, in their judgment, be broken or perverted as a delegated trust of power.