Phenix gazette. [volume] (Alexandria [D.C.]) 1825-1833, 1825-08-09

and degree of it, in this particular in
stance, and to infame the guilt Of sim.
pie disobedience, by any wanton abuse
in the manner and circumstances at
tending the commission of the act, as
in the divers acts of hostility" said to
have been committed against the sub
jects and property ofthe king Of Spain;
are questions left in the characteristic
obscurity and uncertainty which have
yelled the "head and front Of my Of
fending," from any distinct view oft,
that mighthave enabled me to perceive,
or to divine its extent.
shall hold myself, however, COM
pletely dispensed from any obligation
or necessity, to pursue further the la
byrinths into which this indefinite
member of the charge might lead us:
Since, I think, if any proposition can
be made clear, by human evidence, it
would be impossible, for the most vim
dictive accuser, to find any pretext in
the facts of this case, for pushing the
charge beyond simple departure from
the letter Or spirit of the positive rule
of action supposed to have been pre-
scribed to me, whether it be the Con-
sti,ution of the United States, or the
law of nations, or my instructions, that
establishes the law or rule which am
supposed to have "contravened' or
violated" If I have offended at all,
It is in the single transgression Of that
law or rule: -" the head and front Of my
offending hath that extent, no more"
| shall therefore leave it to the court,
without further remark, to decide, from
the evidence, whether it were possible
to have conducted military operation,
on neutral territory, with more scru-
pulous regard to,all the rights of per-
son and property, which such an ope-
ration could, in the nature OF things,
have left inviolate. 1.-THE act were un-
lawful in itself, must abide the con-
sequence; but it lies not, / think, with
in the compass Of human ingenuity or
malice, to contend, that the act, as be-
ing either lawful in itself, was stripped
Of its legal sanctions, and had its qua
lily of lawful changed 10 unlawful or,
as sheer trespass, that it was infiam-
ed beyond its intrinsic character and
degree, by any wanton aggravations or
abuses in the manner and circumstan-
ces.
The question, then, is presented in
the simple form: Whether the act COM
planned of were, under the circumstan-
ces and inducements that led to it, an
infraction, either of the Constitution of
the United States, or the La,o Of Ma
tions, or my instructions from the 60
uernmsat of the United States; and, in
that order, proceed to consider it.
/ Whether belligerant operation, in
the course of an authorized war, be
constitutional or not, is a question
which, if it have any signiGcancy, or
be capable of any determinate solution,
may be considered as nearly identical
with the other question suggested by
this charge; namely, whether it be con-
sonant to the Law of Nations: suPpos-
ing the law here intended, to consist of
conventional or customary rules, by
which civilized nations have agreed to
control and mitigate the ferocity and
the caIamities incident to a state OF
war, and which constitute what is call
ed the law of war. All that the Consti-
tuition of the U. S. has to do with the
matter is, that it has communicated to
the General Government the uEquali-
fed Jurisdiction ofwar and peace. The
power to carry on war, offensive or de-
fensive, involves, in its terms, every right
Immediately or remotely, incidental to
that state and condition of human So
ciety. In what these incidental rights
consist, must be determined by the
known or necessary conditions and con-
sequences Of war. Whatever OF these
/ the most comprehensive Specification
| of the term may embrace, are necessa-
rily constitutional, and the law oil war,
| as it is called, is in many respects so
vague, and so dependent upon arbitra-
nv views of necessity or expediency, 20
be Judged of by hostile parties, as JUS
| tilted by an infinite and incalculable va
| riety of peculiar circumstances, that it
scarce furnishes a definite or intelligl-
BILE rule by which it may be predicated
of any military operation, that it is Ell
Their constitutional or unconstitutional.
The only constitutional question, there
fore, is, whether the war itself were,
itself, authorized? that is, whether COM
menced or carried on by that authority
| to which the constitution has exclu-
sively delegated this high power.
This brings us to the consideration
of the second test, which it is suggest
ed, should be applied to my conduct,
| on the occasion in question-and that
| is the law of nations.
That branch of public law which de-
| termines the correlative rights and du-
ties either of the hostile belligerants,
l..,oo,, chow, calyec or Of neutralS