Rutland weekly herald. [volume] (Rutland, Vt.) 1859-1877, 1867-08-22
RUTLANt ii EkALD.
TUESDAY, AUGUST 20, 1867,
Protest or Brief OF the Hon Frederic
Hall, i'm the case OF Maximilian.

imilian, to which reference was made in
the letter from Mexico, published in
Mondays HERALD, and it is printed from
the manuscript sent by Judge Hall. 1t
is interesting from the fact that II con-
tains several law points of importance;
also that it was prepared and presented
by an American lawyer, and native of
Rutland. The New York press have
recently spoken IN high terms OF the
document:
Whreas, Macmillan is now a prisoner
in the city Of Mexico, by virtue OF his
surrender to the Mexican forces hereto
fore, to wit on the 10Th day OF May, A.
d. 1867 and whereas certain criminal
proceedings have been ordered on GER
tain charges and accusations against
him by the Mexican authorities, and
whereas the said Macmillan has here.
totore made his solemn protest, denying
the Jurisdiction OF the court established
for the purpose Of trying him on said &C
cusations and charges, Therefore, be it
known, the said Macmillan hereby
further protests against the jurisdiction
OF said military court or tribunal, and
against the right OF any military tribu-
nal to try him; that he is only pris-
oser Of ,car, and was so considered, and
so to be, by the commander-in.C chief of
the Mexican Liberal Army, to whom he
surrendered himself as aforesaid. And
the said Macmillan hereby sets forth
the following reasons and principles of
law in his defense, and as against the le-
gality OF the proceedings so ordered
agsins: him as aforesaid
First He contends that he is only
prisoner Of ,oar, and that according to the
generally recognized usages and rules
OF war, II he is to be tried by any court,
or by any law, the trial should be be-
fore competent court, and in accord
ance with International laW, as understood
among civilized nations, which consists
OF those rules of conduct which reason
deduces as consonant TO justice, from
the nature of the society existing among
independent nations, with such defni-
tions and notifications as have been es-
tablished by general consent.
Second. That according to the gener-
ally recognized rules oi International
lac, no use OF force is lawful, ercept so
.ar as it is necessary. A belligerent has,
therefore, no right 10 take away the
lives of those subjects OF the enemy
whom he can subdue by any other
means. Those who are actually in arms,
and continue to resist, may be lawfully
killed but those, who being in arms,
submit and surrender themselves may
not be slain, because their destruction is
not necessary for attaining the just ends
Of war. Theikilling of prisoners can only
De justified in those extreme cases where
resistance on their part, or on the part
Of Others who come to their rescue, rem
der it impossible to keep them. Both
reason and general opision concur ia
showing that nothing but the strongest
necessity will justify such an act. (See
Wheaton on the law of nations, part 4th,
chapter ID, Sec. I'd,
Third. That if it be lawful to try him
by court martial, the officers who
compose the court, established by the
order of the Mexican authorities Of the
Liberal party, are of too low rank,
according to the rules of civilized ma
tions.
Fourth. That the internal Sovereignty OF
i State, does not in any degree depend
upon the recognition of other States.
The existence of the State de facto, is
sufficient in this respect, to establish its
sovereignty deJre. 1t is State because
it exists. Upon this principle the
Supreme Court of the United States,
held IN 1908, that the internal sovereignty
of the United States of America, was
complete FROM the time they declared
themselves free, sovereign, and inde,
pendent States" on the 4th OF July,
1915. The same principle was recog.
njzed in the treaty with Great Britain
and the United States, in 1882. (See
Wheaton on the law OF nations, part lst
chapter I'd, section 9Th
FJth. That he, Macmillan, was En-
peror and Sovereign head OF Mexico, for
0ug tue; as such Sovereign bad
express jurisdiction and control over
the greater part Of the territory o.
Mexico
Sxtk. That he, Maximilian, being the
Sovereign head, so recognized by nearly
all the nations of the world, was not
ana is not, subject to any laws or decree;
made by the President of the Liberal ol
any other party, although said Presiden
was recognized by the United States a.
the President OF Mexico; because SAID
Liberal party was not the governmen
de focto of Mexico. Aud therefore, h'
ought not 10 be sdjutsed by any suct