Burlington free press. [volume] (Burlington, Vt.) 1827-1865, 1841-07-02


extending into general and continued hostlities,
the examples in modern times are very mum.
erous. Not to speak of the memorable attack
on Copenhagen, we have had, in our own day,
repeated instances Of these local, partial, and
isolated hostilities, amounting, nevertheless
during their continuance, to a state of war, and
carrying with them all the legal consequences
Of that state. One instance was too fresh in his
recollection, Mr.. r. said having occurred during
the period OF his residence in France, and fur
nshed too apt an illustration of the principles
under discussion, not to justify passing notice.
While the tyrant Don Miguel was on the throne
of Portugal, he practised the grossest atrocities,
not only on his own subjects, but on foreigners
residents IN his kingdom. The subjects of
France came in for large share of these inju-
ries and indgntles. Failing to obtain suitable
reparation for them by negotiation France re-
s,rted first to reprisals OIL the Porugues: flag !;
but these, too, failing Of their desired effect, she
despatched squadron under Admiral Roussin,
which forced the entrance of the Tagus, and
passing through the fire Of the fortresses which
line its banks, anchored within gun-shot of the
Royal Palace. The required concessions were
speedily yielded to this vigorous display of force,
and Admiral Roussin returned in few days to
Bres, with the whole Portuguese fleet in his
train, as the trophy of his sudden and successful
coup-de main. Here was no formal or declar-
ed war. twas an isolated act of force. And
yet will any one contend that if a sailor Of Ad-
miral Roussin had been afterwards found in
Portugal, he could have been made personally
answerable for the loss OF life or destruction OF
property which may have attended the operation
in which he bore a part
But Mr. X, said he would hasten to present TO
the Senate most respectable authority on the
law of nations, which, direct and explicit to
the pointn question. Before doing so, he
would merely premise that the legal effects at
trlbuted by pubcists to a state Of war, related,
first, to the impunuy of individuals for any in
jury toperson or property they might commit in
the execution o. military operations, and, Sec
ondly, to the right ofpropcrty acquired in goods
taken by one bcgercnt from another The
passages he was about to read from Rutherforth
would show that both of these consequences
applied as well to imperfect and informal wars
to reprsas, and to insulated acts of hostility, as
TO wars OF the more formal and solemn kind
First, he says
"The external lawfulncss Of what is done in
war, in respect OF the members ola civil soci-
ETY., extends topubllc wars of tho imperfect sort,
to acts on repr ials Or to other acts Of hostility"
&c.-Rntherforth, b. ii, 60, 5. Ii.
And again he says:
"Neither the reason of the thing nor the com
mon practice OF nations will give them any other
property in what il taken, where war has boon
declared, than in the less solemn kinds Of war,
which are mado without pray o IS declaration
&c. sin the less solemn kinds Of war, what the
members do, who ac, under the particular dircc-
tlon ana authority OF their nation, is by the law
OF nations no personal crime in them: they cam
not, therefore, DO punished consistently with
this law for any act in which ii considers them
! only as the Instruments aud the nation as the
agen.' -Hem, b. IL c.. 9,s. Il.
Mr. K. said he would put ono more case, and
only one more, in order to bring more mmcdi-
ately home to the Senate the principle We have
been discussing. lie referred to tho attack up
! on the irigate Chesapeake. 1t occurred in
time OF profound peace, Oh tho bosom Of ono OF
our great cstuarias, and within the jurisd cton
| OF his own native Comnonweaith.--Woul pen-
! tiemcn have held the sailors and marines of the
! Leopard personally amenabla to our laws, and
avenged the national irs upon them pre-
sumo not.
! Mr.. BEN TON, speaking across. would
have hanged every one of them
The Senator from Missouri, We all know, said
Mr. r., loves summary mode Of proceeding !;
but would such an act have beon recognised BY
civilized nations, and approved by the general
sense of mankind {! For tho sake Of securing
the conflicts OF war from the crueltics and Bit
tu'nuss of personal revenge the principle OF in
dIrldual immunity has been established by the
code of Nations and rather think that the
Senator himself, upon reflection, would have
pursued nobier course. lie would have obey
ed the suggestions Of loftier chlvalrv, and d.
rcctcd his demands for redress TO the offending
| sovereign, and not have wrcakod his vengeance
upon an involuntary and an unresisting victim.
Mr.. r. said he would now proceed to show
that the passage read by The Senator from Penn
sy.vanina from Natel and on which no 70
! confidently rcliedl 10 assaIl and overthrow the
position assumed by the Administration in rcla-
ton to the prncip pie ofpublc law involved in the
case OF Mcleod, was in truth, an authority d.
rectly and expressly sustaining th1t postion.--
Let us again read the passage which the gentle
man cited from that author, b. ii, c. g. s. "a and
10. 1t consists of two sections. The first is in
the following words.
"But il a nation or its chief approves and
ratiies the act of the individual, it then becomes
a public concern and the injured party is to con-
slider the nation as the real author of the injury,
OF which the citizen was perhaps, only tho in
strument."
Now, This describes identicaly the case of
Mcleod, in reference to the burning and des-
truction of the Caroline, Which act has been
approved and ratified by the British Govern.
ment, and, consequently, in tho words Of Vattel,
IT. "then becomes public question" between
ialion ana natlOn, IN winch the Government OF
the individual is the real and only responsible
party. But the honorable Senator passed lightly
over this section and dwelt with particular
emphasis on the 18th sectio", which immediate y
follows, and is in these words:
off the offended State has in her power the
individual who has done the injury, she may,
without scruplc. bring him to justice and punish
him. If he has escaped and returned to his own
country, she ought to apply to his Sovereign
to have justice done in the case"
The Senator from Pennsylvania read this
section as if it applied to the same case sup
posed in the preceding section to wit, where
the act has been approved and ratified by the
Sovereign. But it is perfectly evident from the
last sentence of the section that it does not for
it would he idle and absurd TO apply to Sover-
eign to have justice done upon his subject, when
he had already ratified and approved the act OF
that subject. This section therefore, must ne.
| cessarilv cOntemDlate tho q ,Sc whoro tho az, oT