Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1825-08-11


the subjects and the property of that power'' and
instead oil any ayerment that, in no doing the or
aers OF my commanding or superior officer were
dsobeyed, tie conclusion of the specification
BRANCHES out into (" contrav ention of the consfi
tutton OF the United States, and of the la,v of
mo'fo"S' ana violation OF insh uctiens from
the government Of the United States.''
NOW, whether any " contr0uerrtion of The con-
Staaion or OF the lao of nations not inyoly ed
IN cisobedence of military orders, be an offence
coshisaDie' under this charge, by court martial /;
or whether general instructions from the gorern-
ment; be identical with the orders of a COM
mdnding or superior officer, and a violation of
such instructions equivalent to a diso5edience of
such orders, requestions of grave import; and will
oouoiess In their due order, receive the deliberate
consideration Of the court. At present, however,
we are endeavoring to ascertain the essential cha
racter and terms of the offence actually intended to
be charged; its legal attributes and consequences
may be separately considered.
Asto the second member of the general charge,
" Conduct unbecoming an Officer;' '-whether it be
intended TO describe mere incident to every act of
hiii'ary disooedience; or to impute some grautous
anu supera'ded circumstance of aggravatIon in the
mode and degree of it, in this particular instance
and TO infiame the guilt of simple disobedi-
ence, by any wanton abuse in the manner and cir
cumstances attending the commission Of the act as
In the divers acts of hostility" said to have been
committed against the subjects and property OF
the King OF Spain;' are questions left in the cha
racteristic obscurity and uncertainty which have
yelled the " head and front of my offending, -
from any distinct view Oft, that might have ena-
bed me to perceive, or to divine its extent.
shall hold myself, however, completely, dis
pensed from any obligation or necessity to pursue
further The labyrinths into which this indefinite
member of the charge might lead u.s. Since, think,
IL any proposition can be made clear, by human
evicence 1t would be impossible, for the most vim
dctVe accuser, TO find any preteXt in the facts OF
tilis case, tor pushing the charge beyond simple
departure from the letter or spirit of the positive
rule OF action supposed to have been prescribed 10
me, whether it be the Constitution OF the United
States, or the law of nations, or my instructions,
that establishes the law or rule which am sup
posed 10 have contravened'' or " violated" IL
have offended at all, it is in the single transgres-
sion oil that law or rue Sc the head and front OF nv
ohending hath that extent, more'' shall there
lore leave II 10 the court, without further remark
10 decide, from the evidence, whether il were pos
siDie 10 have conducted military operation on
neutral territory, with more scrupulous regard to
all the rights oil person and property, which such
an operation could, in the nature of things have
lett inviolste. If the act were unlawful in itself
must abide the consequence; but il lies not think
within the compass of human ingenuity or malice.
10 contend that the act, being either lawful in it.
SELF was stripped OF its legal sanctions and had its
quality OF lawful changed unlawful; or as sheer
trespass, that it was nfamed beyond its intrin sic
character and degree, by any wanton aggravations
or abuses in the manner and circumstances.
Inc question, then, is presented in the simple
form: Whether the act complained of were, under
the circumstances and inducements that led 10 il an
nraction, either of the Constitution of the United
states, or The Lotc Of Nations or of nv instruc-
lions from the Government of the United States,
and, In that order, proceed to considerit
Whethera belligerant operation in the course of
An authorized war, be constitutional or not is aues
tion which, II it have any sgnihcancy, or be capa-
Die OF any determinate solution may be considered
as nearly identical with the other question suggested
oy this charge; namely, whether it be cons0,ant TO
the Law OF Nations: supposing the law here in
Tended 10 consist of the COW enional or customary
rules, by which civilized nations have agreed TO
control and mitigate the feroiciy and the caami,ies
incident to Stale OF war, and which constitute
what Is called the law Of war. All that the Consti-
tuiion oil the Uued States has TO do with the mat
ter IS that 1t has communicated to the General Go
vernment the unqualified jurisdiction of war and
peace. The power to carry on war, offensive or
defensive, involves, in its terms, every right i'm
mediateiy or remotely, incidental to that state and
condton OF human society. In what these Incl
dental lights consist, must be determined by the
OF war. Whatever of these The most comprehe,,-
sve slgnihcatIon OF the term may embrace. are ne
cessariiy CONSTITUTIONAL; and the law of war az il il
called, Is IN many respects vague, and SO Deepen
dent upon arbitrary views of necessity or expedien
cy TO judged ofby hostile parties as justifiedby an
Infinite and ncaculabe variety of peculiar circum-
ces, that 1t scarce furnishes definite or ine-
sibie rule by which may be predicated of any mill
tary operation, that it is either constitutional or un
he Lee
therefore, is, whether the war itself were. itself. au
thorized! that is, whether commenced or carried on
by that authority TO which the constitution has ex
ciusively delegated this high power.
lhis brings Us to the consideration Of the second
test, which, it is suggested should be applied TO my
conduct, on the occasion in question--and that is
the law OF nations
That branch Of public law which determines the
rights and duties either of the hostile
as between themselves, or of nestras &
as between themselves or of allies mr.
ro-belligerants, as between themselves, constitutes
a voiumlnous code, which is perhaps, the theme of
rs much undetermnate controversy, both as TO its
and It's authority, any that eves under
ook 10 prescribe rules of human conduct: and !, /
would scarce be practicable 10 ded1ce from il snv
iehnite rule applicable to the infinitely varied cir
oil actual war, and by which a military
1tlicer might be condemned for presumed violation
u 'nc Jaw an t'is case, however, II Will not be
iecessaryto trouble the Court with any reference 10
he more reconcile theoretical definition Of general
ules; because, insofar my conduct depends for
IS justification upon such rules. il may be referred
o an authoritative aud practical exposition of them,
IS applicable TO The particular circumstances under
which acted. The rights and duties incidental to
state Of war as il affects every party directly or
Indirectly concerned, have been the subject Of such
requent and elaborate discussion, in our own inter
ourse with foreign nations, and have received such
ucid definition and such various illustration from
'pr most eminent statesmen, that we may be said
o have compiled and digested, from the best au-
IA fnoat ,ta.., a.