The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1841-06-19

10, DC held individually responsible for what was don,
~ 'ue execution OF those enterprises Mcleod how
ever was IN the hands of the judicial tribunals of III,
country ana by regular Judicial process only could h,
DC discharged, The Executive authority had no ripb
70 hierpose It's arm for his release What then wa
i io answer OF ihe Administration to the communica
non 81 the British Government 1t was such as Mr.
H. believed the Senate would feel 10 be in accordance
WIN 'he honest national pride of every American bo-
SON. II was IN substance, this for he had not the
| ais"ei OF the Secretary OF State then before him
| lou the British Government now avow the desruc-
ton of the Caroline as a public act of military and ma
sa iorce, done under your authority. Henceforw ard
hcLeod anu others, who acted under your orders
must stand excused in the eye OF the law Let the
courts VA the exercise OF the jurisdiction which OF
ight belongs to them allow his plea of immunity and
discharge; but we hold you responsible in his place,
through all those modes ofinternatona redress which
'e code OF nations has provided for the prosecution
V,ndieation of national rights. "The American Peo-
PIE, (ahu mere said MIR. r., use, in part, the very
words OF the answer returned by the Secretary OF
otae) not disrustul of their ability 10 redress pub
nc prohgs by public means is incapable of the poor
revenge OF pursuing individual for national of
iehce, IN which he was but the instrument of his Go.
vernment
Mr. RlyEs appealed to the Senate--to the senti-
ment OF American pride-to that Roman spirit which,
ne believed yet survived in the bosoms of his
'rymen To say whether such reply was not worthy
OF The country and the Government Parcere sub
and magnanimous spirit, whether in individuals or in
states Historians have recorded the conduct of the
Roman Senate on the occasion of their ambassador
being Killed by the subjects Of Demetrus of the
most powerful princes of antiquity. Demetrious de-
hvered up the perpetrators of the act TO the Romans
but the Senate suspecng that he had connved at or
encouraged the crime, Immediately sent back the in
divitua offenders, notifying Demetrius that they
would hold the sovereign and not the subject respon
slble Ii is in following the example of that proud
lp
MIA finds ground for impuling TO the Administration
IN the case of Mcleod, want of proper national
tone and spirit
But the Senator tells u.s. also that he dissents en-
trey from the views Of the Administration in req ard
to the principle of international law involved in the
correspondence between Mr.. Fox and the Secretary
OF State What is the principle thus denied | cite
It, as the honorable Senator did from the letter of in
structions 10 the Attorney General Ii is there laid
down in the following words:
There is, therefore, now an authentic declaration
that the attack on the Caroline was an act Of pubIc
lorce done by military men, under the orders Qf their
superior otfcers, and is recognized as such by the
Queens Government" That an individual form
Ing part of public forcc and acting under The au-
hmHyqf his Government is not to be held answera-
bic as private trespasser or maefactor, is principle
OF public law sanctioned by the usages of all civil
lzed nations and which the Government Of the United
STATES has no inclination to dispute
The Senator from Pennsylvania contends that this
doctrine is applicable only TO state of open, formal
anddeclared In this beg leave to differ from
hun II is applicable to every of military aggres-
sion committed by military men, acting in obedience
to their superior authorities whether it be in state of
general and formal war or not, What is the reason
of the thing Let not stick in the letter but look
TO the considerations on which the rule Is founded
Why are soldiers and military not held response
BILE for acts OF violence and trespass committed IN
military operations, the persons and property of
another nation Rprausp in these acts
they are the mere instruments of a higher Power
bound lmperaively by their allegiance to yield their
services at the call of the constituted authorities Of
their country and 10 obey implicitly the orders of their
commanding officers. Ii is not for the soldier or the
volunteer (or they both stand the same ground) to
auiiir' '.AL-., - v.s~.s.'e, ''.'. '..s ~f.----
ty for his orders is with his sovereign, the superior
officers who issue them And here beg leave TO re-
fer the honorable Senator TO his fayorte authority
Vattel, from whc. he read an extract which shall
presently show completely sustains, when properly
understood the position he used it to assail. The
passage am about 10 read refers TO the of
ton and unjust war Of SO fragrant character as to
expose the sovereign who wages It to the unanimous
reprobation of the whole family Of nations. The
author there says
" But, as 10 the reparaon Of any damage the
1nihfury the general officers and soldier obliged IN
consequence To repair the injuries which they have
done Of their will, but as Instruments in the
hands OF their sovereign e. " II is the duty Of subjects
TO suppose the orders Of the sovereign Just and
wise &c. When, therefore, they have lent their as
sstance in a war which is afterwards found to be un
Just the Sorereign alone IS guilty lie atone IS bound
to repsrthe injuries The subjects, and in particular
the military, innocent they have acted only from
necessary Obedience " Government would be
impractlcablc, il every of its instruments We're
to weigh its commands Sc.-Vattel, b iii c. ! sec.
1877.
In this passage both the rule and the reason of it.
respecting the immunity from individual sibllity
of persons employed in military operations, are lad
down in the most comprehensive terms They are
regarded as mere instruments in the hands of the
sovereign or superior authorities much SO, IN effect,
the havoncts they ply or the cannon they discharge
The rule too is expressed in terms SO large and com
prchensiyc as 10 apply every kind of war IN regard
10 its character for Justice and TO every degreeof war;
in respect to formany duration, and extent There
are many forms and varieties of the state OF war In
general declaration Of war Is required 10 constitute
solemn or formal war, But defensive war requires
no declaration, even, on urgent OCCASIONS an ex-
press order from the sovereign" Vattcl b. m, c 4,
sec 66 50 as 10 reprisais, and other specific and
martial acts or hostihig They are not accompanied
with declaration of war, and yet they are public
1rars though of the imperfect sort Rutheflorth, an
able writer on the law Of nature and Of nations, has
well described these various degrees and denominations
of He says
"If one nation seizcs the goods Of another nation
by force upon account of some damage, &c. such con
tentons By force reprisas. There may be like
wise other acts Of hostility between two nations whch
do not properly come under the name OF reprisas,
such as the bcseigng each others towns or the sink
ing Of each others fleets, whilst hc nations n other
respects are al peace ciH another These are
public ,ears because nations the contendng par
ties But az they are confined to some particular OBJ
jects they Of the imperfect sort, &c.-B. II. =,
s. 10.
OF these informal and imperfect wars neither &C
companied with declaration Of war, nor extending
$50 M continued hoStGg the q Dnlplps