The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1841-06-22
CONGRESSIONAL.
THE CASE OF EOD.
IN SENATE,

sage as relates to our foreign affairs the Committee
on Foreign Affairs
! Mr. CHOATE regretted TO be obliged TO consume
a moment of the crowded time of the Senate ina dis
cu-sion which could produce practical results
But the subject was forced upon the friends Of the
Secretary OF State and of the Administration; pos
sessed good deal of interest ntrnscay, and there
| FORE holding place upon the Committee on Foreign
Relations, to whom it might be thought appropriately
10 belong, he venturei to submit few thoughts upon
it less iurey considered than he could have wished
He feared he could add little to the splendid and mas
| terly speech Of the Senator froa Virginia Mr.
| Rives.)
| confess Che proceeded) that when read few
days since the letter of the Secretary of State To Mr.
Fvx, on which the Senator from Pennsylvania Mr.
Buchanan) has commented, IL seemed 10 written
with much ability and that il ought To and would
tisty the judgment and feelings of the whole Ameri
can People The views represented ! thought sound
| clear, and some of them new the manner, not I'M
important consideration, good frank decided rude
boisterous not timd; and the whole tone temper
and spirit elevated national, American worthy of
the man this cause and the country. The objections
taken to il in this debate seemed to to he It's
tial merits. BY concedtng just what he did, and by
denying just what he did, he had gone far thought
to withdraw this controversy about the Caroline from
the false position it rested upon and To place it on
such grounds that it may be ad justed with and
honor, or, if we must fight, that may carry into
battle the appreciation Of our own consciences, and
the supports OF just pride.
90 the letter struck my mind. Other gentlemen
or, at least, one other, regard it differently. And in
the first place doubt is intimated by the disn.
gushed Senator from Pennsy lvania whether the con
cesson OF the Secretary that person in the asserted
pred cament of Mcleod is entitled TO immunity. He
argues that II does not and he holds the opinion that
may well enough hang that person Tor robbery and
murder; that may do this in entire conformity with
the received ameorated codes of ntcrnatio nal law Of
the nineteenth century, md without justly bringing
on ourselves murmur of dsapproballon from any of
he m q of m M InIik of nnyf n,iIv
Sir let pause for moment on this great question
of the nations.
What the concession Of the Secretary of State
Why only and exactly this that a soldier sailor
de facto such-actuaIly engaged in a military or naval
enterprise OF force, under the authority, in obedience
to the command of his Government and Keeping him
self within the scope OF that authority, guilty
the law OF nations administered to-day of crime
against the municipal code of the country upon which
he thus helps TO cary war that he punishable
for such cIpe by that country and that the resppn
sibility rests upon his own Government alone TO
swe nations for their crimes to their equals
That is the concession. lie does not deal at all with
the OF soldier struggling away from his coors
commit solitary and separate murder fle does not
deal with Of alleged excess of authority. lie
supposes him to obey the precise directions of his Gov
ernment and SO doing, he declares him clothed with
personal immunity.
Ii has been said in some Of the discussions of this
subject although not here, that Mcleod left the Caro-
line after the whole object OF the enterprise had been
accomplished and committed an unnecessary and dis
tinct and malicious murder on shore | can say only
to this that such fact forms part Of the basis of
the opinion Of the Secretary. He had either never
heard OF IT, he disbeeved it, he assumed that the
courts of law or the Attorney General would allow its
proper influence discriminating circumstance SO
important
lfyou to the fourth page Of his letter you NAV
that the murder for which he supposes Mcleod Is
indicted was "a murder alledged to have been commit
ted in the attack forming inseparable very pain
pa 81 tied n
ture and destroy the vessel, and not succeeding il
For the purposes of the concession, he takes for true
the express declaration Of Mr.. Fox that the ransac
| ton on account of which Mr. Mcleod has been ar
rested and is be put his trial !" including The ho-
homicide unavoidable incident in il, was pub
lie transaction, conducted by Her Majesty Govern
ment.
Such is the concession ! have the honor 10 sub
nit first that the concession is right in point OF in
ternaunal law and then, that il the duty Of
the Secretary OF State 10 make IL and Of the Govern
ment TO act upon IT. exactly as II was made and acted
upon.
I In entering on this nvestiga alton then YOU observe
that to certain distance, proceed all sides Of
the Senate tremendously together. Thus, il is admit
ted by the Senator from Penn, ,ana, and by every
body, that persons taken lighting, for having fought
in the battles OF an OPEN general regularly declared
war are not responsible as Tor crime committed by the
act Of fighting against the country which they de,as
tate and wrap in mourning and blood. They become
technically prisoners Of war. A such, prnclle
jecled 10 restraints imprisoned held ransom, cx
changed, and otherwise disposed OF with " less
indulgence and humanity, according TO circumstances
But criminals robbers murdcr"rs by The ACT OF fight
ing although the act involved the destruction of pro-
priy and life, they not, by the theory prac
4 nee Of civilized race OF men.
Thus far proceed together On this admitted
principle all stand and from tins all take our
departure. The truth is, the nat ons have agreed
and that agreement makes the law OF nations TIA, il
is duty and virtue in the individual citizen, his first
duty is highest virtue, 10 be obedicnt to his Go
vernment They have agreed To regard him, as nu-
own Decatur the elder Decatur said OF his child en-
as the property Of his country. Whithefsoever he
\ goes whatsoever he does, whefesoye he lies down
slain in battle in obedience to her sacred and parental
command II Is, the general rule, not imputed To
him for crime at all HIS nation his nation the col
leclive natural person, must answer IT on the high
places Of the world and 10 the whole extent Of the IN
de6nahe responsibilities of
/ IT, therefore Mcleod had been of those bodies |
of troops which, during the last war occasionally I
passed our line Of boundary, burning dwellings
and killing our people, and had been taken even at /
the time, and with the red hand, he could not have
been declared guilty Of crime against any law OF q
| State or of the Union
Setting out from this admitted principle, the real
question whether the special circumstances under
which McLeod's Government sent him forth To this /
midnight work of strife and blood withdraw him from
the protection of the principle OF individual immunity
with which humanity aud wisdom have relieved and
adorned the law of nations VIVA, were those spe- I
cal circumstances Exactly these. He was soldier /
sailor dc facto, the time for the act in mill
tary and naval expedition OF force planned and sent
abroad by his own legitimate Government having the
right exact his to the last drop Of his blood
abroad not to plumber, but, il represented TO
/ him when il called him out OF his bed and disclosed i
purpose 10 do act Tor the defence of the country
| he lived in against invasion This expedition a
single act preceded followed by any other; It
preceded by declaration Of war and this |
Government alleges, it was unjustifabe, Such were
the circuu stances and the question debate is DO
they withdraw him from the principle of personal re-
sponsibity