The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1841-06-29

tered rssoft might DO had 10 habsds eorYl. l. ~
in bar, or to plea 70 the jurisdiction qae.taa ol
jurisdiction question for the court ana Tie es.e
of Mcleod never could be- Jury case but "as ess
for the judge A demurrer always assumed TIE &ct,
and superseded the resort TO jury.
Mr. =, N the next place Proceeded % diseu'' 'br
\ question Of natlonal law he quoted The position
ia led by Mr. Fox in his leller-a position ~ttl
every dictate Of his judgment, well as every eno!,n
his heart to confirm. So obvious dad he cohslltt
its rectude, that II any nation deyated from The lt
cple that nation fps0 Jacto ce ased TO be c,iLd iit
was not aware that such nation did exist but
II did he stigmaized II a. uncIyiZed. Tie noticed
curious circumstance thai the lang usge of Lord
Paimerson almost identical with that OF Nattel,
whilst the acknowledgment on the part OF Mr.. Web
ster The very words Of kutheuonh. lflhey were
both us AIKEN they had least the comfort Of eTIing IA
company with two Of the enlightened puhlicis.s
which the world had seen. Aiter some general re-
marks upon national law as science and the ds'in-
gushing characteristics of the chief writers upon u,
particularly that Of Grous Mr.. L. came down To NE
case hand and contended that the mistake q Mr..
Buchanan and Mr. Calhoun arose from not noticing
ihe distinction which ought to BE- made between Act
ordered By Government and those which Govern
meLt only permitted To be done ia other words, BE-
tween COMMANDS ant conniyance.
In reply 10 the position that Ia case Of outrage
like that Of the Caroline our Government had accu
INFLATED remedy first against the perpetrators and then
against their Government Mr. +. said that that might
be true, If the OBJ Ct were sens and tetr
button but vengeance not principle recognized
by national law by the criminal law "A particular
nations far less by The genius and spirit OF Christi
aniy No such principle had been recognized since
the days of Beccara The true motive in all penal
law was the prevention of future crime or the obtain
ing of redress for that which was past Now if the
object 10 prevent repetition of such acts as the
invasion Of territory and the burning of YES
sells by order OF British colonial authority, ou course
proceed against Great Britain and not against
miserable iudisidua-to proceed against him would
neither prevent crime hereafter nor obtain redress for
that which had been committed IL would be equally
cruel and futile 10 place the people OF Canada IN such
position that # they obeyed order from their
Government they must be hanged on our side OF The
line and If they refused, must be hanged their side
of il. Mr. r. had some reason TO feel this subject
for he had been in position himself which
CURED him very seriously 10 look into his liabilities
He had been placed between the orders of his ow
State and those of the General Government and had
matters TO the aIbtrament of force, take which
he would, lie might have been exposed TO fr.
Ions death. The Senator from Pennsylvania ai-
United that fagrdnte beio, the individuals committn.
violence by order Of their superors were not amen9
bic 10 municipal authority. But then he had drawn
distinction between such case OF the Caroline an
open war. In this the publicsts were against him
In support Of this position, MIR. z quoted Grotus
and referred TO Rutherforth If the doctrine Of The
Senator true, then the Courts of Russia miIAt
have tried and hanged the whole army of Bonapaf'e
for most wanton and unjustifable invasion of thor
territory. And might the Sultan the Pacha II
Egypt have disposed in like of the French
my IN Egypt The only question TO be asked IN scch
this Does there exist state OF war; III
there does, then the parties committing violence III
taken were to be tried by the laws of war; they
subject TO military, no civil jurisdiction. TIE
capture of the Caroline an act of law, and
know lodged by Great Britain. The war which then
endured for moment might become war of years ~
Mr. 2. earnestly deprecated such result but thought
the two nations stood in very awkward position to.
wards each other.
The doctrine he had assumed applied only to cose.
n act q Ell hv
OF the Government; il had application where the
act was only permitted connved at. la such cases
the individuals must suffer for their individual and
then he would not deny that the remedy might be
mulatve The Government injured might hrst lay
hold on the respassers and then if their al
forwards acknowledged 1t might look to their Govern
men too. In confirmation of this, he quoted Grotius
4s2
He denied that this case could fairly be likened IL
that of spies or emissaries. There was no common
principle between them. A spy was not acknowledge
by the laws of war; or, if recognized it provided
that if captured the spy might be shot But was lie
to be shot by the sentence Of civil tribunal Was
he brought up before judge and jury No, he was
tried and sentenced by a drum-head court martia
Nor was the case of an emissary any in point
no ever heard Of trying prisoners of war by
and jury They might indeed among barbarous ma
Tons have been considered liable death slavery
but even this was not according TO civil but to militia
~ law The rules Of national law in reference to "a
state OF war thing those relating to a state
OF peace, another II an emlssary was sent from
nation into another in time of peace and was detected
and seized he might be tried for in a municipal
court But II IN state OF war, the laws of war applied
to his An emissary acting without force which
according to Groius constitutes the essence of war
was amenabe TO the civil tribunals but if he came
into the country, and there acted in forcibe manner
he was subject 10 the laws of war. Mr. p. alluded t.
the embarrassment Of our position having arisen Ia
great measure from the long delay of the last Admin
lsration, from the nhammaiory report and from The
assumption by them of false grounds New ground
had now been taken. To this true ground we mus
adhere and, in doing, must take whatever God
should send. He trusted we should get into no fur.
Their difficulty, but if should in conseq uence III
pursuing course of open justice and rec,ude WHY
then in Gods name let the difficulty come Win
truth and justice side he trusted the Govern
ment would 60 straightforward leaving consequence
with the Almighty. He sorry that Great Britain
should ever have ayowed such outrageous act a.
the capture and destruction of this vessel American
waters. Her avowa had taken the case out of the
municipal tribunals and transferred the responsibility
TO the Government but he trusted she would yet re
fleet and reconsider her course and take the ground
that the perpetrators of that outrage exceeded their
thority This would be a proceeding marked with
that marnanimily which became that great and pow
erfu nation But, whatever she might think it right
do her part, had done every thing that could
he required