, 1841-07-10
CORRESPONDS
THE CASE OF Mcleod.
SPEECH OF MR.. BUCHANAN.
IN SENATE,
THURSDAY, June 10, 1871.
~lcoNcLUDED.1

CONCLUDED
shall now offer q few remarks on the
question of public law involved in this case,
and then close what | have to say. ! sincere.
IL believe the Administration Of Mr.. Van
Buren, was perfectly correct on this doctrine,
as laid down by Mr.. Forsyth. If had
Sound any authority to induce me TO enter
tain q doubt on that point. | would refer to it
most freely. now undertake to say that
the only circumstance which has produced
confusion and doub, in the minds ci..welI in
formed men on this subject is. that they do
not make the proper distinction peace. II
a nation be al war. the command of the
sovereign power TO invade the territory of
its enemy, and do battle there against any
hostile force, always j~ustifies the troops thus
engaged.
When any of the invaders are seized. they
are considered as prisoners of war. and as
having done nothing bat what the laws Of
war justified them in doing. In such n case
thew can never he held to answer. crimina'lv.
in the courts Of the invaded country. That
is clear. The invasion of an enemv's terri
tory is one Of the rights of war, and. in all
its necessary consequences. is justified by the
laws of war. But there are offences. corr
mitted even in open war. which the express
command of the offenders sovereign will
not shield from exemplary punishment. |
will give gentlemen an example. A spy will
be hung. if caught, even though he acted I'M
der the express command oi his sovereign.
We might cite the case Of the unfortunate
Major Andre. He was arrested m his re-
turn from an interview with Arnold. and, his
life being in danger. the British commander
(Sir Henry Clinton. ] heliPve) made an effort
TO save him. by takingunnon himself the res
possibility OF the act. Bat although he had
crossed our lines whilst the tw o nations were
in a state o. open and fragrant war. in ODE
dience TO Instructions from his commander
in-chief. vet Washington, Notwithstanding.
rightfullv hung him as a spy.
Now. let me tell whoever shall answer me,
(f, indeed, any gentleman will condescend to
notice what | have said-for it seems we on
this side OF the House are TO do ali the speak
ing, and they aNehe voting.) that whilst all
the modern authorities concur 10 declaring
that the law of nations protects individuals
when obeying the orders of tfeir sovereign,
whether it has been solemnly declared or not,
and whether it be general or partial. yet
these authorities proceed no further. But,
TO decide correctly on the application of this
principle in the case before us. we must re-
collect that the two belligerants here were
England on the one hand and her insurgent
subjects on the other, and that the United
States were a neutral power, in perfect peace
with EngIond. But what is the rule in re-
gard to nations at peace with each other?-
This is the question. As between such ma.
tons, does the command of an inferior Of
fcer of the one, 10 Individuals, to violate
the sovereignty Of the other, and commit
murder and arson. If afterwards recognised
by the supreme authority, prevent the nation
whose laws have been outraged from punish
ing the offenders! Under such circumstan-
ces, what is the law Of nations? The doc.
trine is laid down in Vattel, an author ad-
mitted TO be of the highest authority on ques-
tons of International law; and the very ques-
ton, tofidem rcrbis, which arises in this case,
is in bis book stated and decided. He ad-
mits that the lawful commands Of a legiti-
mate Government, whether to its troops or
other citizens. protects them from individual
responsibility for hostile acts done in obedi-
ence to such commands, whilst in a state
Of open war. In such a case, a prisoner of
war is never to be subjected TO the GRIMM
a Jurisdiction of the country within which
be has been arrested. But what is the law
Of nations in regard to criminal offences COM
mitted by the citizens or subjects OF one
power, within the sovereignty and j~urisdic-
ton Of another they being at peace with
esch other, even il these criminal acts should
Be recognised and justified by the offenders