The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1841-10-09

.E,eo ,he Blush Minister Is too just oeaI il
the British Government do not pretend IL was rar
As words in a promise, indicative OF an I'M
dertaking 10 warrant, amount, in law, accord
ing. 10 s1Couen's Treatise 10 rarTan.y,
without the use Of the term udrrdnf, so, In sns !
letter of the British Minister, description Oh
hosiIities that by the law of nations constitutes
imperfect war; is equivalent 10 the ASSERTION
IN terms that il was rar If the importer sori.
But the Judge. evidently not feeling mucn
confidence IN his criticism upon the BRUSH M
nis,er,s communication, afterwards seems 10 al.
mi, ,ha, our Government, so far as Il could, had
decided the question in regard 10 The character Q,
,he hostile attack, and, consequently, IN regard
~ ~ individual liability Of those concerned IN
II.
The language Of the Judge is this;
nBu, i, is said OF case al bar here Is more than
mare au,aoyal BY the adverse Government; that an
srnanaon has been demanded by the Secretary OF
State and the British Ambassador has insisted on NC
L@ods release and his counsel claim fr the Joni Ut
plonacy Of the United States and England some
such effect upon the powers Of this cour as eerso
rari from us would have upon the county court OF gs-
neral sessions. II spoken OF as incompetence WIN
the judicial proceedings against Mcleod IN TINS oa'e
as suit actually pending between the two nations,
wherein the action Of the General Government comes
in collision with and supersedes our own
40 such an objection the answer Is quite obvious
Diplomacy is not Judicial but executive function;
but the objection would come with the same force,
whether il urged against proceedings IN cour
Of this State, or The United Sfafes
But The Judge insists that sthe Executive
power has charge Of the question in ITS national
aspect only; !" by which, from the context, we
must understand that the two Governments may
agree that the hostile attack was OF that charac-
Ter which furnishes impunity TO the military
81 hot
State may determine otherwise, and infiict
criminal punishment upon the offenders How
.sthe Executive power has charge Of the ques-
ton in its national aspect" and yet lis decisions
be void Of all efficiency and effect upon The sub
ject decided upon, is, we confess, beyond our
comprehension. The General Goyernmentcan-
not, il is true, after deciding the question: issue
any mandate 10 a court To carry II, determine
ton into effect or remove cause, or withdraw
a sutton or criminal from the custody OF the
courts. But its decision becomes binding upon
all courts OF tribunals where the question arises
and thus the Executive department OF the Gov
eminent has charge Of The question in It's ma
tiona aspect" and the law makes its decision
all-poweru and efficient
Il can hardly be necessary to resort to any
course Of reasoning, or to the citation OF au-
thorities. 10 show that the Executive Of the Uni
ted States possesses all the power in regard 10
The Executive department Of every Govern
ment
THE command and application Of the public force
TO execute the law maintain peace and resist foreign
invasion, are powers obviously Of an Executive cha
racter and require the exercise Of qualities charac-
teristical Of this department. that they have always
exclusively appropriated 10 il, ~ every well regu
lated Government upon earth - kenfs Com. 2o6.
The memorable attack OF The British ship Of
war Leopard, Capt. Humphreys, upon the frigatr
Chesapeake, Capt. Barron. IN which several
American sailors were killed, became the sub
iect Of discussion between the Two Govern
ments, and resulted in an adjustment in which,
amongst other things England offered "the
American Government suitable peeuniary pro-
vision for the sufferers in consequence OF the at
tack on the Chesapeake, including the families
Of those seamen who unfortunately tell IN the
action, aud Of the wounded survivors" Could
Captain Humphreys afterwards have been pro
ceeded against in a court Of our country, and
held personally responsible, notwithstanding the
Executive department Of our Government had
settled the whole matter with the British Gov
eminent? There cannot be doubt, as we
think, that this adjustment Of the matter, Sin its
national aspect" was an adjustment OF the mat
Ter in erery aspect, and binding upon all courts
and tribunals Of the country.
This principle has been judicially recognized
in England There, where the Executive de-
partment of the Government has determined
The relation in which the British Government
stands towards any other country, IN regard to
hostilities, such decision is conclusive. and IN
all the courts precludes any further examination
or agitation of the question.
Is East. Sl.-This was case OF insurance,
and the cause turned upon The question whether
the trade to ST. Domingo was, al that time, with
a country at peace with England.
Lord marlborough says, this is grave question
and depends in great upon consideration
of the Orders Council which have been referred to
agree with the Master Of the Rolls in the case Of hs
Pelican, that II belongs 10 The Gorernmenf gf m
country 10 determine irhaf relation Of peace a'
ann other country stands tOrards IL and that woult
~ unsafe Tor courts Of justice TO take upon them
without that authority to decide upon those relations
a But when the Crown has decided upon the reIa-
ton of peace or in which another country s,ands
10 this there is an end Of NE question; and m The 40
sence Of any express PRONUNCIATION Of the Will OF the
other acts Of the State. The Master Of the Rolls il
the case of the Pelican lays down The rule generally
that il belongs 10 the Gorernmenf Of the country q
determine in what relation any Of her country stands
towards it, and that The courts Of Justice cannot dsad
upon the point" by which must understand him u
have said that they canned decide adrerseiy to the de
caration Of the sovereign upon that point.
g For want OF declaration by the Crown at ont
period different vercts given in different ause
in respect To commercial adventures Of the same de
scrip,ion TO Hamburger. But courts and juries can
not do otherwise than decide secundum aiiegata e
probata in such particular cases, without regard I,
other proof in other causes"
This let il be remembered, was private lti
CATION between individuals; and the court hel,
that the determination Of the Government, as I,
the relation in which another Government stand
towards il, controlled the rights of the parties
ltigant, and put an " end TO the question" How
much stronger is the reason for the application
OF the rule TO our country and Government.
Without such rule, conflict and collision
arise between the Executive and Judica
branches Of the General Government, and be
tween the General and State Governments
Mr Buchanan. Of The Senate. has well de