My son! the road the human being travels,
That on which blessing comes and goes, doth follow
The river’s course, the valley’s playful windings,
Curves round the cornfield and the hill of vines,
Honoring the holy bounds of property;
And thus, secure, though late, leads to its end.”[10]
It only remains now to show that this rule of International Law is applicable to the present case. Of course, our late war was not between two nations; therefore it was not strictly international. But it was between the National Government, on one side, and a Rebellion which had become “territorial” in character, with such form and body as to have belligerent rights on land. Mark the distinction, if you please; for I have always insisted, and still insist, that complete belligerency on land does not imply belligerency on the ocean. As there is a dominion of the land, so there is a dominion of the ocean; and as there is a belligerency of the land, so there is also a belligerency of the ocean. Therefore, while denying to our Rebels belligerent rights on the ocean, I have no hesitation with regard to them on the land. But just in proportion as these are admitted, is the rule of International Law made applicable to the present case.
Against our Rebels the Nation had two sources of power and two arsenals of rights,—one of these being the powers and rights of sovereignty, and the other the powers and rights of war,—the former being determined by the Constitution, the latter by International Law. The Nation might pursue a Rebel as traitor or as belligerent; but whether traitor or belligerent, he was always an enemy. Pursuing him in the courts as traitor, he was justly entitled to all the delays and safeguards of the Constitution; but it was otherwise, if he was treated as belligerent. Pursuing him in battle, driving him from point to point, dislodging him from fortresses, expelling him from towns, pushing him back from our advancing line, and then building fortifications against him,—all this was war; and it was none the less war because the enemy was unhappily our own countryman. A new law supplied the rule for our conduct,—not the Constitution, with its manifold provisions dear to the lover of Liberty, including the solemn requirement that nobody shall “be deprived of life, liberty, or property without due process of law,” and then again that other requirement, that “private property shall not be taken for public use without just compensation.” All these were silent while International Law prevailed. The Rebellion had grown until it became a war; and as this war was among countrymen, it was a civil war. But the rule of conduct in a civil war is to be found in the Law of Nations.
I do not stop to quote the familiar views of publicists, especially of Vattel, to the effect that in a civil war the two parties are to be treated as “two different nations.”[11] Suffice it to say, that such is the judgment of all the authorities on International Law. But I come directly to the decisions of our Supreme Court, which recognize the rule of International Law as applicable to our civil war.