The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1841-10-09
me rule OF IMMUNITY or liability to be applied to
the military, IN cases Of hostilities upon land.

me rule OF IMMUNITY or liability TO be applied TO
'he military, IN cases Of hostilities upon land
u Wheaton, Al, Story says "A piraiical aggres-
sion oy an armed vessel sailing under the regular flag
o. any nation, may be justly subjected TO the penalty
o. for such gross breach Of the law OF
nauons But every hostile attack IN time Of peace,
y not necessarily Pirafcai Il may be by mistake,
necessary selfdefence repei supposed medifa-
tsa attack by pirates-it may be justfabe, and then
no Diane attaches to the act il may be ioiio just
sIeuse and then II carries responsibility IN damages
IL proceed further If il be an attack from rersngs
ana mafgniy from gross abuse Of pooer and settled
purpose Of mischief il then the character OF
| private, unauthorized war and may be punished by
III 'ne penalties which the Law Of nations properly
The same principle is recognized in Kent's
| Com. 1885, 6f 4s4884J
An alien, under the sanction Of national COM
mission, cannot commit piracy nhiie he pursues his
authority. His acts may be hostile and his nation
responsible for .hem. They may amount TO a lawful
cause Of war, but they neper to be regarded as
piracy" Ne s#s@ 8af since Nsfa fel
How perfectly does this principle cover the
case In question The attack upon the Caroline
was hostile and unlawful, and the British nation
must be held responsible for it. II amounts TO a
| lawful cause Of war; but those engaged in il,
acting under lawful authority, can never be re-
garded as robbers or plunderers, or liable TO be
punished criminally.
This principle has been fully recognized in
the judicial decisions of the English courts.
| We have not the case at hand as reported, and
therefore avail ourselves of it as extracted by
Chancellor Kent Kent Com. 1907
g Inthe English Admiralty in 1901 it was contend
ed that the capture and sale of English ship by
Aigerines, was an invalid and unlawful conversion OF
the property the ground Of being pirdtical seis
ure II was however decided that the African States
had long acquired the character Of established Gov
ernments. and that though their motives Of justice
differ from those entertained by the Christian powers
their public acts could be called in question and
deriyative title founded on Aigerine capture and
matured by confscation in their ndy, was good
against the original owner. Citing The Helena,
Rob. g.
Shall ii be said that an English court has held
an Algerine capture lawful, because made under
the sanction and authority of tina, Government
| and title thus acquired valid against the orig-
nal English owner of the captured vessel and
yet the Supreme Court of New York decide
that a hostile attack upon us, made (not without
apparent cause) under the sanction of the Bri-
tish Government, shall not protect the military
engaged in it from the punishment due to cold
blooded murder2 We regret 10 say it has been
so said and decided.
The decisions of the courts OF England and
the United States, in regard to the IMMUNITY Of
vessels and crews when acting under the autho-
rity OF their Governments are decisions merely
carrying out principles long since adopted by
the most approved elementary writers upon ma
tional law, and giving TO those principles the au-
thority Of solemn adjudications by the highest
judicial tribunals Of the world.
These elementary writers, when speaking Of
war generally, and more particularly in refer
ence to hostilities upon land, hold that when
ever the hostile attack is made under the autho-
rity oil Government, il becomes an affair be-
tween the two nations, and no individual re-
sponsibility rests upon the actors.
Thus Vatte, speaking Of war that is unjust
on the part OF the sovereign who waged II, but
lawful, because not without apparent cause, and
not for havoc and pillage, says:
But as 10 the reparation Of any damage are the
military, the general officers and soldiers, obliged in
consequence, TO repair the injuries which they have
done, not Of their will but instruments in the
hands OF their sovereign" 1t is the duty of sub
ects TO suppose the orders Of their sovereign just and
assistance in war which is afterwards found TO be
unjust, Me sovereign alone is gully He alone is
bound to repair the injuries. The subjects, and in
particular the military, are innocent; they have act
ed only from necessary obedience" " Government
would be impractcable, If every one of its insiru
ments to weigh its commands" &c Vatiel, b.
| iii. c. IL sec. 1877.
"Nothing of all this takes place in war void of
form and uniacfii, properly called robbery, be-
| ing undertaken Without right-irithout much as
apparent cause. 1t can be productive Of no lawful
effect give any right to the author Of it, nation
attacked by such such sort Of enemies, is not under
any obligation to observe towards them the rules Of
war in form Hmay treat them robbers. Patel
b. 3, 4, 6S.
Thus we have " these taro sorts of ,ears, laao-
tiA and uSlantul," carried through by Vattel
to their consequences and all persons engaged
are entitled to have observed towards them
the rules Of aoar," except those engaged in Sin
cursions committed without apparent cause, and
only for havoc and pillage."
The same position in regard to the immunity
Of soldiers is also maintained by Rutherforth:
"The external awfaness of what is done in a
war, in respect of the members of civil society
tends to public wars Of the imperfect Sort to acts Of
prsals TO other acts ofhosty, 4'c.-B. ii. 9,
s. 10.
And again he says:
Neither the of the thing, the common
practice of nations will give them any other inpuniy
or allow them any otherwise TO obtain property In |
,ohat is taken where war has been declared than in
the less solemn kinds of war, which made without
previous declaration," &c :" In the less solemn
kinds Of ioar what the members do who act under the
particular direction and authority of their nation is
by the law of nations no personal crime in them
they cannot therefore, be punished consistently with
the law, for any act in which il considers them only
the instruments, and the nation as the AGENT
Idem b. IL, G. 9, IS. IL.
We here leave this branch of The case, believ
ing that our readers, from our citation OF author
ties, must be satisfied ehat, il the expedition in
which Mcleod is said TO have been engaged |
was executed under lawful authority, he was
guilty Of no personal crime in the violation Of
our territory, the destruction of the boat, or the
death of Durfee.
We now proceed TO show that the hostile at
tack took place under lawful authority.
Ii should be borne in mind that Canada is Sc
parated froro its mother country bv an ocean of
three thousand miles. That I volution was
attempted in Canada, and the di affected of the