The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1841-06-17

and the Attorney General OF that State" I" Whe-
thern says the Secretary, IN this Case the Governor
of New York have that power, or, If he have, whe-
ther he would feel il his duty TO exercise Il, are points
upon which not informed"
But the Governor Of New York proved to be a very
FESTIVE subject. He felt inclination Whatever 10
enter a noile prosequi against Mcleod. have seen,
somewhere, correspondence between that omeer anu
the President, but cannot now find IT, ne zone u
this correspondence the part OF the governor e'h
ced spirit of determined resistance 20 ,ne
of the Secretary. The Governor complained that the
District Attorney Of the United States was acting as
the counsel Of Mcleod This however, according TO
the explanation of the President happened by mere
accident the Attorney having been retained counE
sci some time before bis appointment. The couespon-
dence at all events is sufficient to show that Cover
nor Seward did participate in The views and feel
ings Of the Secretary OF State towards Mcleod and
we know that he did not approve of entering noiie
proseqai in his
But the Attorney General Of the United States was
armed with instructions from the Secretary OF State TO
meet every contingency II Mcleod could not be
discharged by noLe Prosequ If he was TO be tried
then Mr.. Cri,tenden was to consult with McLeods
COUNSEL and furnish them the evidence material TO ms
defence, and he Ito that he have shiin,
and eminent counsel, If such be not already retained
IL Is wonder that 1t appeared very strange 10 oo'
Seward 10 find the authorities of the United States
thus ardenily and actively engaged in defending Nc
LeoJ, whilst the authorities OF New ok were enlist
ed with equal vigor in his Prosecu on:
The defence of this man, who had no claim 10 Pc
cular favor except what from earnest desire
to please and satisfy the British Government, became
the object Of the Seeretarys peculiar solc,nde and
this too in the face OF PLAIN, papable menace IRON
that Government.
The next thing we might hear would be bill Of
cost and counsel fees against this Government for the
defence of Mcleod; il having been imposed duty
Attorney General to see that "he had skilful
and eminent counsel"
Now these features in this transaction any thing
but creditabe TO national character. think that
sufficient decision and rmness have not been display
u hxtth he Ca~r x,fSs IL mill
prove miserable policy to attempt to conciate the
British Government by concession. 1t was the max
i'm of General Jackson that, in foreign relations
we should ask only what was right, and submit to
thing that was wrong; and, in my judgment the OBJ
of that maxim is the very best mode Of pre-
serving peace. When nation submits to one aggres-
sion another will follow. II is with nations as it
is with individuals. Manly and prompt resistance i'll
secure you from repetition of insult Ii you yield
once, you will be expected to yield again and then
again. Till at length there is end TO submission. |
do not pretend that Mr. Webster asdone wrong in
ten,ionaiiy all | mean to say is, that in my udg-
ment, he has not in this instance, displayed proper
and becoming American spirit Ii he had waited a
little longer before he prepared his instructions the
Attorney General if he had taken time for reflection
beioie he despatched that officer crusadng to New
York his conduct would probably have been different.
According TO the practice of diplomacy copy these
instructions doubtless sent to Mr. Fox 1t
Is certain that they known the British Gov
eminent before the 9th of May because on that day
flor Of the House of Commons s a document in pos
session of the British Cabinet.
shall now offer few remarks the question of
public law involved in this case and then close what
have to say. sincerely believe the administration
OF Mr. Van Buren, was perfectly correct this doc
trne, as laid down by Mr.. Forsyth. If | had found
any authority 10 induce me to entertain doubt on
that point, would refer to it most freely. | un-
dertake to say that the only circumstance which has
produced confusion and doubt in the minds of we'll
informed men this subject is that they do not make
the proper distinction between state Of national
war and national peace. If nation be at war,
the command of the sovereign power to invade the
nory OF Its enemy, and do battle there against any
hostile force always ustes the troops thus engaged
When any of the invaders seized, they are con-
sdered prisoners of war; and as having done moth
ing hut what the laws of war justified them in doing
In such case, they be held to answer cri-
minally, in the courts of the invaded country That
Is clear. The invasion of enemys territory is one
of the rights of war; and in all its necessary conse-
quences, Is justified by the laws Of But there
are offences, committed even in open war, which the
express command of the offenders sovereign will not
shield from exemplary punishment will give gen
tlemen an example. spy will be hung, if caught,
even though he acted under the express command of
his sovereign. We might cite the case of the unfor-
tunate Major Andre. He was arrested on his return
from an interview with Arnold, and, his life being in
danger, the British commander Sir Henry Clinton |
beieve) made an effort to him, by taking upon
himsetthe responsibility of the act But although he
had crossed our lines hst the two nations were in a
state OF open and fragrant war; in obedience nstruc
tons from his commandment chief yet Washington
Notwithstanding, righttuIly hung him as a spy
Now let me tell whoever shall answer me, (if in
deed any gentleman wi i'll condescend to notice what
have said-for II seems this side of the House
to do all the speaking, and they all the voting
that whilst all the modern authorities concur in de-
claring that the law of nations protects individuals
when obeying the orders of their sovereign during
state of open and fragrant war; whether it has been
soemny declared or not, and whether it be general
partial yet these auI hores proceed further But
to decide correctly on the application of this principle
In the case before u.s. recolect that the tw
bllgerants here were England on the hand and
her DSurgent subjects the other and that the
ted States were neutral power perfect peace with
England. But what is the rule in regard to nations
al peace with each other 2 This is the question As
between such nations, does the command of inferior
officer oil the one to individuals to violate the
regnty OF the other and commit murder and arson If
afterwards recognized by the supreme authority pre-
vent the nation whose laws have been outraged from
Furnishing the offenders Under such circumstances
what IS the law of nations The doctrine is laid
down IN vattel an author admitted TO be Of the high
est authority on questions of international law and
the very question: totidem rerbis which arises in this
case IS IN his book stated and decided He admits
tEnt the lawful commands OF legitimate Government
whether to Its troops other ciizens protects them
from individual responsibility for hostile acts done in
obedience to such Commands, whilst in a state of open
wal IN sucn case, prisoner of war is never to be
subjected to the criminal jurisdiction of the country
whin which he has been arrested But what il the
law OF nations in regard 10 criminal offences commit.
ted by The citizens or subjects of power within the
sovereignty and jurisdiction of another they being AT
peace with each other even if these criminal acts
should be recognized and justified by the offenders
sovereign This is the of the capture and de-
struct'on of the Caroline. The subject is treated OF
by Na'tel, under the head of the concern nation
may have in the actions of her citizens book il chap
3, page l6l. shall read sections 10, IA, and u.s.
However, MS II is impossible" says the author
Tor the best regulated State, for the most vipsn
In enya -
actions OF bis subjects and confne Them on every
occasion to the most obedience il would be nm