I fully concur in the opinion just announced. Iu none of the pleas is it averred that the appellant, iu committing the trespasses complained of, was at the time acting from compulsion-, against his will, or while under duress. The averment that he “was a soldier in the service of the Government called the government of the Confederate States of America,” cannot be considered as meaning or implying that he acted involuntarily as such soldier — in the absence of apt and positive words to that effect. It is neither claimed in the argument nor is there anything in the pleadings tending even to show that his becoming a soldier in the rebel army was not a voluntary act on his part, or that he did not voluntarily place himself in a position to become the subject of those orders and commands of his superior officers, which he now pleads in j ustification of his acts.
Much of the conflict of opinion that exists among the learned counsel as to the rights and immunities of rebels under the law of nations, arises mainly, I think, from a failure to recognize the fact that international law, though based upon principles of humanity- — though breathing a sound and wise policy, and though affording valuable guides to governments in their political departments, yet lacks some of the essential characteristics pertaining to municipal law as technically understood, in this: it is not a rule of action prescribed by a superior to an inferior, which the latter is bound to obey. Sovereign nations may adopt or reject it at pleasure, and in actual practice never hesitate to do so. To the great credit however of Christian and civilized nations be it said, that even in rigorous prosecution of their wars they seldom make flagrant departures from the humane principles recommended so forcibly by the great writers on international law; but this is not proof of compulsion on their part to recognize and obey it.
If the policy of foreign nations constitutes supreme law, then courts must ever remain in uncertainty as to their respective statutes, for these are to be controlled and modified by a constantly varying policy. Our legislation must be *239interpreted by the light of opinions prevailing under forms of government differing from ours; opinions, too, depending in a great measure for their stability on the interest and ambition of rulers. But whatever may be claimed as good policy for the government of armies, 'pendente bello, or what-, ever political powers a nation may choose to exercise, these are not subjects for courts to consider in their efforts to expound the law.
The citations from the various writers on international law in support of the proposition that the same rules and practices governing the conduct of armies at war between different nations, apply equally in civil wars, most clearly refer to the period of actual hostilities, and this, for the reason assigned, namely: in order to mitigate the horrors of war, and relieve it as much as is possible from its terrible enormities. The reason for the observance of the principles of humanity and forbearance, exists the same in civil, as in national wars. But the conduct of the victorious 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 conquered nation is not held accountable by the victor for legitimate acts of warfare, although such acts would amount to trespass, theft, robbery or murder, if done in a time of peace, because these acts having been done in obedience to the commands of his sovereign, while engaged in war, he would, if held accountable for them afterwards, appeal to his sovereign for protection; the sovereign would demand his discharge, and if refused such refusal would be just cause for a renewal of hostilities.-
The soldiers constituting the armies of a foreign nation, at war with us for example, owe allegiance to their sovereign and are compelled to obey his commands whether willingly or not; on no principle of justice then can they be held personally accountable for legitimate acts of warfare, because by force of their rightful allegiance they are without option in the premises.
*240But in the present ease of an unsuccessful rebellion no such reasons exist. The insurgents were acting in violation of express law from the beginning, and though during the actual continuance of hostilities they were treated with that forbearance generally observed between different nations at war, but now when hostilities have ended, and the so-called Confederacy ceases to have an existence, and the chief insurgents are in prison or held at the mercy of the rightful government, that government may deal with the privates and officers of the rebellion as to it may seem proper; it may pardon the former, and rightfully hang the latter; may punish either or both, or grant amnesty to all. This it may do in the exercise of its sovereignty. In vain would the rebel soldier call upon his annihilated government for protection; in vain would he expect a renewal of hostilities by his rebel chief if the victorious government persisted in holding the insurgents personally accountable for their treason. Hence it is plaiu that the 'policy of a nation in dealing with those who have been at war, or in revolt against it, is modified by circumstances; and courts cannot give interpretation to laws, and shape private rights so as to conform with an ever varying political policy. Laws to be of value must be certain, and of a nature to be understood. The existence of war may cause the execution of the civil laws to be temporarily suspended, but they are not thereby abrogated. The forbearance and moderation of a nation during hostilities, cannot be afterwards construed into a relinquishment of rights that existed before the war, ñor an acknowledgement of the justice of the enemies’ cause.
If the facts set Up in these pleas amount to a justification of the trespasses complained of, then loyalty to' the government and fidelity to the laws, occasion positive danger to the citizen in times of great public commotion. The insurgents secure immunity to themselves, in proportion as their numbers are formidable, their deeds unlawful, and as they increase their own necessities for converting the private property of unoffending citizens. While they are few in number, and their deeds of lawlessness limited, they are re*241garded as thieves, robbers, or murderers, and treated accordingly. But when their numbers are so multiplied as not tobe quelled by the local authorities, their depredations and atrocities so vast as to create a wide-spread terror in the land, then it is maintained they are to be treated with consideration — entitled to respect if successful in their resistance to the rightful authority, and because of the enormity of their crimes, and the magnitude of their numbers are not ■even to be held responsible for private wrongs done to private persons and property. If this be the true rule, the peaceful private citizen may be plundered without redress, for he must submit to the loss, if the rebellion succeeds, and the law affords him no remedy if it fail.
"When the courts of the country shall maintain the doctrine claimed by the plaintiff in error in these cases, they offer a premium to treason, and beset the pathway of peace and loyalty with difficulty and danger.
Maxwell, J. concurred in the judgment of the court.Judgment affirmed.