The Sun.
London, England, 1841-03-26 00:00:00

CAN AUTHORITY ABSOLVE

FROM RESPONSIBILITY?

TO THE EDIT 01? OF THE SUN.
Silty—The Examiner and the Morning Chro-
nicle, supported by some authorities, concur in
stating that when an officer obeys the commands
of his superiors, he is exonerated from all respon-
sibility to other tribunals. As this seems tivil me
to carry the doctrine of military obedience too
far, I must quote the remarks of your two Con-
tc mporaries, that I may run no risk of misrepre-
senting them. The passage from the Examiner
runs thus :

Lastly, both the Chronicle and the Globe imputed to us the
opinion that, if the seizure of the C:iroline be unlawful, the
conduct of all those who participated in it, though acting un-
der the orders of their military superiors, was consequently pu-
nishable ; and a correspondent of the Globe has quoted Chan-
cellor Kent's great authority to prove that an alien cannot be
guilty of piracy Y. he act under the orders of his Govern-
ment. Now on this subject we have given no opinion what-
ever. We have stated that if Mr. M.Leod failed in proving an
alibi, he will plead the orders of Mr. Macnab ; that we hope
the Court will allow the plea, but that that .is a purely legal
question. .

We are quite ready to state what our opinion is • and it co-
incides with that of the correspondent of the Globe. We think
the plea valid; and that a contrary decision would destroy mi-
litary discipline, and convert war into a series of deadly feuds,
under which the military servants of every nation would be
liable to civil execution fur military services.
The passage of the Chronicle is this:—

Upon grounds which our Contemporary states with sufficient
clea-ness, it would be absurd to hold an agent responsible for
that which he does under the authority of Ins superior. " The
State by whom the Commission is granted," says Dr. Wheaton,
so long American Minister at Berlin :—" The State by whom
the Gimmission is granted being responsible to other nations
for what is done by its commissioned cruisers, has the exclusive
jurisdiction to try and punish all offences committed under
colour of its authority." ( Wheaton's Principles of Interna-
tional Law, vol. i., p. 163). The British Government having
given the Commission under which Al‘Leod acted, is responsi-
ble to the Federal Government, but has itself exclusive juris-
diction to try and punish whatever was unlawfully done under
colour of its authority. So that M'Leod, as an agent doing
the bidding of a lawful superior, is not responsible to any tri-
bunal, and whoever is responsible is amenable to the exclusive
jurisdiction of the State that commissioned him.
The Examiner has already seen reason to
qualify, and thereby retract, some of its expres-
sions on this subject, and I shall not, therefore,
be surpris3d should it, after reading my re-
marks, qualify and retract more. It is clear
that both passage..go the whole length of assert-
ing that whatever a proper authorAty orders
military- men to do, without any reference to
what that is, they are answerable only to it, and
to no other tribunal. It releases them from
every other jurisdiction and responsibility. Pass-
ing over the particular case under the discussion
of your Contemporaries, which is one of doubt,
and is sub judice, I wish to ask, if the order, in-
stead of being to destroy a piratical vessel, had
been to capture the Sheriff of New York, with-
out any declaration of war, and one of those who
went to execute it had been taken in the at-
rempt, after murdering an unoffending citizen,
would not the New York authorities have I.):en
authorised t o try him for the murder ? lam in-
clined to s ppose that they would; and the de-
claration of the British Government that it had
given the order, neither could, nor ought, to
save the offender from punishment. If it were
otherwise, I see no-reason why some detestable
Government might not commission individuals
to commit assassination in foreign countries,
who, when they were apprehended, might
plead the authority of their Government. Major
Andre, if I remember right, had the authority
of his Government for playing the part of a spy,
but he was, nevertheless, executed. It is plain,
therefore, and to be recognised, I think, in the
statement of the Examiner, that the orders of a
Government will only justify the common and
authorised practices of war. That is the proper
limitation, and it follows, I think, that each in-
dividual soldier and officer, is bound to know
what are those authorised practices, and to be
careful only to execute orders that do not over-
pass them._

Nor can I believe that this doctrine would not
lead to some good results. ' If, as the Examiner
says, it would convert war into a series of deadly
feuds, would it not tend to prevent wars of
aggression. Suppose the Marshals and General
Officers of Bonaparte's army, who were conquered
and captured after his marauding expedition to
Moscow, had been held responsible for the murders
committed by their master, and had been hanged
like felons, would it not have made all future
Marshals careful at least as to what wars
they engaged in, satisfying themselves that the
war was just, or making quite sure that they
would neither be defeated nor captured. I am
much afraid that this doctrine of non-responsibi-
lity in the servants of Governments to any other
persons or any authorities than the Governments
themselves, excluding, of course, the authority
of reason, nature, and God, is far better calcu-
lated to secure immunity for their somejimes
guilty instruments, than to promote the welfare
of the rest of mankind. It constitutes Govern-
ments the sole judges of what is right and wrong
in their own cases, and releases them from all
responsibility to the public. However pleasing
that may be to them, it cannot be for the advan-
tage of those over whom their instruments may
exercise their power. Through your enlightened
Journal, then, I beg leave, fbr one, to enter my
protest against the doctrine, however great may
he the names that sanction it, though I never
heard of Dr. Wheaton before, that the State or
Government which grants commissions or gives
orders has the exclusive jurisdiction to try and
punish all offences committed under colour of its
authority, and let me add by its authority.

Your obedient servant, -
CIVILIAN.
P.S.—I think all men are interested in this
subject, as the question at issue is whether civil
authority, which is the. law of reason, shall pre-
vail over military authority, which is the law of
violence ; the one requiring nothing to be done
but what the agent himself approves of, the other
compelling obedience without consulting his opi-
nions.