The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1841-06-24

ne ACT OF tue Queens Government which authorized
the transaction in which Mcleod was engaged made
that transaction national one and therefore the at
lack on the Caroline Is considered act of that
Government which is regarded by US as an unjusi.
liable invasion in time Of peace Of our territory and
dfec' infringement OF our national sovereignty and
as such, one which may justify reprsas or even gene
raj war iithe Government of the ned States in the
Judgment which II shall form of the transaction and
OF ns ownduty, should fit or think proper SO To de-
eide And II II be sound doctrine by what right car
we treat The subjects of Great Britain engaged in this
interference who may have fallen into our hands as
trespassers or liable TO indictment IL the transac
ZION be one which may Justly be treated by US an
act OF open hostility, those who were employed in it
were open enemies; they engaged in an act equ-
vaient 70 an act of war; they acting in hostile
movements under competent auth oriiy and whether
Il be an Isolated act Of war preceded by demand
TO reparation public declaration ofwar the ind
vlduai responsibility is merged The rules of inter
national law apply. The community which orders
the act alone ne responsible party and every view
OF the subject which urges the personal responsibility
OF Mcleod IN effect exonerates the Government of
Great Britain from all blame, and although she vo-
UNFAIRLY assumes the responsibility very kindly abb
solves her from against her will
In conneNion with the preceding view of the sub
ject may be added that the question of the right
to enter upon our territory is public question. Ii
arises between independent nations. The individuals
concerned in II are mere agents. and the principals
are the two Governments. II is not, for the present
purpose material to inquire in whose favor this ques-
ton oughtto be decided As to the citizens engaged
IN II, they are mere Instruments and if they can be
made subject to municipal law, the question ceases
to be public and political one. II then becomes a
mere private matter between the government invaded
and the persons invading and thus every invasion by
Independent Government may be treated as ati-
horHed, entirely lawess, at the option of the in
yaded State and the actors in il treated prisoners
of var, or pirates, robbers, murderers, as may
Government " a has IN ken -
1t surely cannot be necessary 10 add that such prin-
cipe Is as unjust a. II IS unsupported by authority
Such are the grounds on which the doctrines set
forth in the document referred to rest II is believed
that they solid, and cannot be shaken. II is be-
eted, also that the opposite doctrines would tend
greatly TO increase the evils of war, and introduce
rgan practices which have been long exploded as I'M
Just and barbarous by the whole family Of civilized
nations II personal liability of officers and soldiers
is enforced in the courts of law for acts done under
national authority if they to be treated crimi-
nals, and punished such; and especially, if this
can be lawfully done by the authority of State Coy
ernment, which is irresponsible TO the foreign Gov
erlment, and without the power of declaring war or
making peace then shall we be driven back to the
practices of the most barbarous nations, and the
aneorated code of international law cease to exist
A reference to the analogies and authorities bear
ing upon the point now under consideration will finish
what have to say upon it. To constitute piracy, the
depreciation must be committed without the authori-
Therefore, it is said whether one be pirate not
depends upon the fact whether he has has not a
commission 10 cruise Bynkershoeck, chap. H. II
he acts under lawful authority the act done in pur-
Of is not piracy So also in relation to
prsas which are a means of redress to be used only
in case of denial of justice They are an author-
cation granted by Sovereign, to take the persons
and goods of another Prince for injury committed
upon his subjects, for which justice has been denied
BY the Sovereign of the offending party, and are ge
neral special II is only the lawful authority un
der which the acts are done that relieves them from
the charge and punishment Of piracy If such au-
thority exists will it be claimed that the individuals
acting under it be punished maefactors Il
has been urged that supposed distinction between
acts done in state Of war and in state of peace
has not been sufficiently attended to. But Is II neces
sary, to exonerae individuals from personal RESPONSE
bility when acting as part of military force under
the orders Of an acknowledged Government that wal
should have been declared, or hostties have beer
commenced, previous to the acts complained of Let
me answer these questions by another inquiry. Sup
pose Mcleod had been tried the 22d of March
and found guilty, and sentence of death had beer
passed upon him, and he had been executed and i'm
mediatey upon this being known by the commanders
of the British squadrons on the West India and Hall
fax stations they had entered, with their squadrons
the port of New York. and attempted to burn and
destroy that city, acting under the orders of the
Queens Government, and they had been captured
would the officers, sailors, and marines have been
liable 10 rs tried murderers robbers, and exeeu-
ted And yet, in such case, there could have been
no demand for redress and no declaration of war
1t would have been isolated act of hostility. The
direct authorities bearing upon the rule of public law
have been referred to by the Senators from Virginia
and Massachusetts. There some which will
merely cite, but not read Nattel, 223 359 1888, 444
Rutherforth, b. ,, c. 9, $ lS Bynkershoeck, 1877,
1874 1876. Putiendorf, 50. The authority read from
Vatte supposed to be opposed to the doctrine admit
ted by the Secretary of State, has been commented
on by other gentlemen will not refer 10 il, except
TO saw that il to be quite evident that II sus-
tans rather than opposes that doctrine, A single
quotation from Rutheriorth, which think very much
in point, is all which shall read.
''The members of civil society are obliged in gene
raj and those members that have engaged themselves
in the military service of it obliged in particular to
take up arms and to gh forit at the command of the
constitutional governors in the defence and support OF
its rights against its enemies from without The con-
sent by which the subjects in general, or the soldery
in particular lay themselves under these obligations, is
the only act that can, by the law of nations be looked
upon as a personal act of the individuals who bear
arms In consequence of the general consent Of man
kind TO consider nations collective persons whatso-
ever is done by the members of nation, at the com
mand of the Public of the constitutional governors,
who speak the of the Public is the act of the
ton and if the is unjust the guilt in the view of
the law of nations is chargeable upon The nation and
not upon the indiridudi members" " And if he was
TO fight anindepcndent individual at bis choice
and upon his motion, those against whom he fights
might look upon the act of bearing against them
in such war personal crime Blu, when they,
with all mankind have agreed to consider the several
members of civil society only parts Of collective
person. that act under the direction of the common
will of such collective person. however inexcusable a
man, who fights against them, might he in the view
OF his own conscience of the law of Nature, which
considers him as individual they cannot, consist
emily with the law Of nations charge him with having
been guilty OF personal crime merely on account of
his having fought against them" " The law Of Ma
ture applied to individual persons would make it
crime, not only in the view Of conscience but likewise
in the view Of mankind to fight in an unjust war.
But when mankind have agreed to keep individuals
out of sight, as it were and to apply this law only to
collective persons they cannot consistently with this