The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1841-10-09

her Majes,y's territory and subjects To in
sure this end, the Canadian officer is authorized
10 do any act necessary for this protection and
this necessity must, in the nature OF things, de-
pend upon the Judgment and discretion Of that
officer. The authority does not limit the officer
to any specified measures, or confine his acts to
the Canadian territory As England might, IN
defence OF her Canadian subjects and territory,
authorize hostile attack upon the Caroline, I'M
der such circumstances as presented themselves
70 the Canadian authorities, il would seem to fol-
low that the Canadian officers had power, un-
der their orders, to do the same thing.
4 by saying that the sovereign OF England might
authorize such hostile attack as was made on
the Caroline, we do not intend 10 say il would
be an attack that could be justified TO the world.
w only intend 10 say that i would be SO far
Justfiable Or excusable as to furnish impunity to
the military acting under such an order.
But have zoe right to scrutinize and limit an
authority Of this kind, whilst England sanctions
the act done under il, and when the object and
effect Of such limitation is, to make murder of an
act, which, under liberal construction OF the
power, would render the accused innocent Of the
slightest crime 4 fsM
We think the construction which we give to
this power receives confirmation from Burli-
mdgni, pt. A, CHI. /, sec. A. Speaking Of the
power of magistrates or generals, this author
says: They cannot lawfully undertake any act
Of hostility of their own head, and without
formal order of the sovereign, at least reasoaa-
oily presumed, IN consequence OF particular cir
cunstdnces."
But England approved this act, by not imme-
diately disclaiming it, by knighting MacNab,
the chief protector of it, and has since officially
recognized the attack as one embraced within
the powers conferred upon the Canadian autho-
rites. Mr.. Fox, the British Minister, in COM
munication to our Government, says:
The transaction account Of which Mcleod has
been arrested and is 10 be put upon his trial was
transaction Of public character planned and execut-
ed by persons duly empowered by her Majestys colo
NAL authority TO take any steps and do any acts which
might be necessary for the defence of her Majestys
territories and for the protection of her Majesys sub
Jects and that consequently those subjects Of her
Majesty who engaged in that transaction were per-
forming an act Of public duty for which they cannot
be made personally and individually answerable to the
laws and tribunals Of any foreign country"
But Judge CowEN denies that an approval BY
me British Government can. in any way, ope-
rate to screen Mcleod from the punishment due
TO the crime oimurder, for the part he is suppos-
ed to have taken in the attack. To maintain
this position, the learned Judge goes into an Ella
borate citation of authorities which, to avoid the
appearance OF injustice towards him, we here
transcribe
An order emanating from one Of the hostile soye-
reigns, will not justify to the other every kind OF per
hdy. The case of spies has been already mentioned
An emisssry sent into camp with orders to corrupt
the adverse general bride the soldcry would stand
lust'iied TO his immediate sovereign. Vane b. g. ch
~ sec ISO though he could not legally punish
refusal In respect TO the enemy, orders would be
an obvious excess of Jurisdiction
The emissares sent by Sir Henry Clinton, in
i7Si TO seduce The soldiers of the Pennsylvania line
falling into the hands Of the Americans were con-
demned and Immediately execued.--4 Marsh Life Of
Wash 366, LIST ed Entering the adverse camp to re-
ceve The reacherous proposition Of the General is an
offence much more venal II is even called lawful in
every sense as between the sovereign and employee
tahei 3. >, eh. 10, $751; Yet in the case Of Major
Andre, an order to do 50 was between the two hos
tile countries held to he an excess Of jurisdiction
These cases are much stronger than any which
can be supposed between nations al peace In time of
war, such perfdy is expected In time Of peace every
citzen while within his own territory, has double
right TO suppose himself secure the legal involabty
OF that territory and the solemn pledge Of the foreign
sovereignty.
The distinction that an act valid as to one may be
void as to another is entirely familiar A man who
orders another to commit trespass or approves of
trespass already committed for his benefit, may be
bound 10 protect his servant while it would take no.
thing from the liability Of the TO the party in
)ured As to him. II could merely have the effect Of
adding another defendant who might be made Jointly
or severally liable with the actual wrong doer case
IN point is mentioned by Vaftel b. g. ch 2sl5 If
one sovereign order his recruiting officer to make en-
listmens in the dominion Of another in time of peace
between them, the officer shall be hanged notwith-
standing the order, and may also be declared
against the offending sovereign Vid like instance,
id. b. ], oh. 6, IS
What is the utmost legal effect of foreign sove-
reign, approving of the crime his subject committed
in neighboring territory7 The approval as we have
already IN pat seen can take nothing from the crm
naiiiy OF the principal offender. Whatever obIiga-
non his nation may be under TO save him harmless
Tins can be absolutely done only on the condition that
he confine himself within her territory Pattei B. q
a. =, IA. Then, by refusing to make satisfaction
70 furnish OF to deliver him up, demand from the
injured county, or by approving the offence the ma
uon, says Vatte becomes an accomplice. ID rs
Blackstone says, an accomplice or abetter "a
Com Us j and Rutherforth, still more nearly in he
language of the English law an accessory after the
act-B 2 Oh. 2, 8 ~. No book supposes that such
IN act meraes the original offence renders it impu
liable TO the nation alone"
The rights and duties of nations are not. in
general, happily illustrated by reference to the
tights, duties, and liabilities Of individuals In
relation to the case oftrespass, put by the Judge,
we agree that the effect OF another PERSONS ap.
proving il might make him tresspasser also.
md would not discharge the liability of him who
actually committed il; and the reason is, that
he approver had no more right TO make til en-
ny than the actual trespasser
We think il cannot fail to strike every one, !
hat the examples given by Judge CowEN, in I
which the authorization or approval by the sove-
elgn cannot protect the criminal, are all cases
whore the act done 10 unlawful in itself, whether
committed by sovereign or subject The en-
istment of soldiers in the dominions Of another
lation, without its consent, is, by the law of
iatlons, crime, whether the enlistment be
made by the sovereign in person or BY a recruit
ng ofiicer.- pattei, b. l, oh. 6, sec. rs.
Spies also are not The less criminal because
hey are authorized by their sovereign, since
he sovereign could not himself lawfully act The
py
we cannot better answer Judge CowEN on
bis head than BY transcribIng one other Of his |