The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1841-06-19
WHOLE NO. 664.

which may have attended the operation in which b,
: bore a part
But Mr. r. said he would hasten TO present to IN,
, Senate most respectable authority on the laws o
nations, which is direct and explicit TO the point il
question Before doing 80, he would merely premis,
mat the legal effects attributed by pubcs,s TO STATE
Of war related, first, TO the impuaity of individuals
LOT any injury to person or property they might com
INIT IN the execution of military operations and Sc
condly, to the right Of property acquired in goods
taken by one bellgerant from another The passages
ne was about to read from Ruiherforlh would show
thal ooih OF these consequences applied as well to inn
perfect ana informal wars 10 reprisas and to isolated
acts oil hostility, 10 wars of the more formal and
solemn kind. First, he says:
"The external lawfuness of what is done in war.
IN respect OF the members of civil society extends
to public wars of the imperfect Sort To acts of repr-
sails or to other acts Of hostility &c-Rutherforth r.
II. c. 9, s.. 10.
And again he says
Neither the reason of the thing nor the common
practice of nations will give them any other inprtnff
or allow them any otherwise to obtain propertv IN
l1taf IS taken where war has been declared than in
the less solemn kinds of wal which made without
previous declaration, &c. ain the less solemn
hinds q mar, what the members do, who act under
the particular direction and authority of their nation
s by the law of nations personal crime in Thorn
they cannot, therefore, be punished consistently with
'hs law Tor any act In which considers them only as
,he instruments, and the nation as the agent "-Iden
b. ii. c. 9, s. Is.
MI H. sad he would put one case, and only
one more, order to bring more Immediately home To-
the Senate the principle we have been discussing
lie referred to the attack upon the frgate Chesapeake
IL occurred IN time of profound peace on the bosom
OF one OF our great estuarles and within the urisdc-
ton of his native Commonwealth WonIJ Gen
temen have held the sailors and Marines of the Leo
/ pard personally amenable to our laws and avenged
the national insult upon them Ipresume not
Mr.. BENTON, speaking across | would have
hanged every one of them
The Senator from Missouri, all know said Mr.
H., loves a summary mode of proceeding but would
such act have been recognised by civilized nations
and approved by the general sense Of mankind For
The sake OF rescuing the conflicts of from the
cruetes and bitterness of personal revenge the prin
cple OF individual immunity has been established by
the code of nations; and rather think that the Sc
naor himself upon reflection would have pursued
nobler course he would have obeyed the sugges-
tons OF oftier chivary and directed his demands
for redress to the offending sovereign, and have
wreaked his vengeance upon involuntary instru-
ment and an unIeslsng victim.
Mr., H. said he would now proceed to show that the
passage read by the Senator from PENNSYLVANIA from
Vatel, and on which he confidently relied to assai
and overthrow the position assumed by the Admins
tration in relation to tie principle Of public law nvolv
ed IN the of Mcleod, was, in truth authority
directly and expressly sustaining that position Let
US again read the passage which the gentleman cited
e. 8. III
of two sections The first is in the following words
"But fa nation its chief approves and ratifes the
act OF the individual 1t then becomes public concern;
and the injured party is to consider the nation as the
real author of the injury of which the citizen was
perhaps only the instrument"
Now, this describes identicay the case of Mcleod
in reference to the burning and destruction of the
Caroline That act has been approved and
tlfed by the British Government and consea uently
IN tha If fol
ton between nation and nation in which the Gov
eminent of the individual the real and only respon
sible party But the honorable Senator passed lightly
over this section, and dwelt with particular emphasis
on the 10Th section, which Immediately follows and
'lf the offended State has in her power the indvl-
dual who has done the injury she may, without scru-
pie bring him to justice and punish him. II he has
escaped and returned TO his own country, she ought
10 apply to the Sovereign to have justice done IN Inc
case"
The Senator from Pennsylv ania read this section
if applied TO the same case supposed IN the pre-
ceding section wit where the act has been approved
and ratified by the Sovereign. But IT is perfectly ev
dent from the last sentence of the section that does
not for it would be idle and absurd TO apply to So
yereign to have justice done upon his subject, when
he had already ratified and approved the act OF that
subject. This section therefore, must necessarily
contemplate the where the act Of foreign subject
has not been approved and ratified by his Sovereign,
and afms the principle that, in such case the offend
ed State may by virtue of her jurisdiction all
persons within her territory, punish the offending IN
diyidual though foreigner, if she haze him in her
power 1t does contradict in any degree, the prln-
cipe laid down in the preceding section, that, lchere
the act has been approved and ratified by the Sore
reign ne responsible for the injury, and the ndl,i-
dual is to be regarded only the instrument IL IS
an universal rule of Interpretation that where there IS
an apparent conflict between parts OF the same autho
rity or law such construction shall be made, If pos
sibe as will give effect to both, The obvious expla
nation given above these two sections of attel salts
fcs this rule well as the plain import OF the text
The Senator from Pennsylvania put case which
he seemed suppose would fairly test the principle OF
international law involved in this discussion. lie
asked Il Col McNab should, under the orders OF the
Colonial authorities of Canada seize and rob the mail
Of the United States, could he set up his orders as
bar to prosecution for such offence IN the hmer-
can courtsl The case put has not the remo,est
analogy to the case of Mcleod Such proceeding
would be common felony, incapable of being shelter
ed under any plea of military obedience. The duty
OF military man can never lay nun undef inc opgh
ton Of becoming highway robber. The capture and
destruction of the Caroline the other hand how
ever unustifable upon any sound application OF the
principles Of international law, IS shown by all the
pondence and documents relating TO It TO nave
been military and naval operation, governed by all
the rules and discipline of military service and subor-
dnaiion
come now (said Mr.. r. to notice some of those
topics of party elimination which the honorable Se.
nator from Pennsylvania notwithstanding ms usual
parliamentary courtesy, scattered with no stnted hand
in the progress of his observations lie told us OF
some mysterious panic which seemed to have seized
upon the minds OF in regard to our relations with
Enoland extending to Government and People. The
gentleman seemed to insinuate that il under the
influence Of this panic that the Attorney General was
despatched with fiery speed to Lockpor, attended Ivy
gallant and distinguished general officer OF the Army,
Major General ScotD 70 shield Mcleod from I'M
nendnp danger In order to complete this fancy pic
ture the honorable Senator for the want of other ma
teria brought in the precipate return OF the Medi-
squadron the effect of this same panic at
Washington If the public Journals have not grossly