Sidor som bilder
PDF
ePub

ment, exempts an individual from all responsibility to the injured government, exists, even in case of war.

Turning, then, from a state of peace to that of war, we find at the very threshold a very important exception to the rule, if it exists at all, in the case of spies. None can doubt that, if a spy is detected and arrested, he is individually and personally responsible, though his pockets should be filled with all the authority the country which employed him could give.

But is the case of spies the only exception ? Are they alone personally and individually responsible ? Far otherwise. The war may be declared in the most solemn manner; the invaders may carry with them the highest authority of their government, and yet, so far from exempting them individually, officers, men, and all, may be slaughtered and destroyed in almost every possible manner, not only without the violation of international laws, but with rich honor and glory to their destroyers. Talk of the responsibility of the government exempting their instruments from responsibility? How, let me ask, can the government be made responsible, but through its agents or instruments ? Separate the government from them, and what is it but an ideal, intangible thing ? True it is, when an invading enemy is captured or surrenders, his life is protected by the laws of nations, as they now stand ; but not because the authority of his government protects it, or that he is not responsible to the invaded country. It is to be traced to a different and higher source—the progress of civilization, which has mitigated the laws of war. Originally it was different. The life of an invader might be taken, whether armed or disarmed. He who captured an enemy had a right to take his life. The older writers on the laws of nations traced the lawfulness of making a slave of a prisoner to the fact that he who captured him had a right to take his life; and, if he spared

ernment to release them on a peremptory demand to do so ? And if that could not be done forthwith, from the embarrassment of State laws and State authorities, ought this Government to employ counsel and use its authority and influence to effect it ? And, if this could not accomplish its object, would it be justified in taking the case into its own tribunals, with the view of entering a nolle prosequi?

But, setting aside all supposititious cases, I shall take one that actually occurred—that of the notorious Henry, employed by the colonial authority of Canada to tamper with a portion of our people, prior to the late war, with the intention of alienating them from their Government, and effecting a disunion in the event of hostilities. Suppose he had been detected and arrested for his treasonable conduct, and that the British Government had made the like demand for his release, on the ground that he was executing the orders of his Government, and was not, therefore, liable, personally or individually, to our laws and tribunals: I ask, would our Government be bound to comply with the demand ?

To all these questions, and thousands of others that might be asked, no right-minded man can hesitate for a moment to answer in the negative. The rule, then, if it does exist, must be far from universal. But does it exist at all ? Does it even in a state of war, when, if ever, if we may judge from the remarks of gentlemen on the opposite side, it must? They seemed to consider that nothing more was necessary to establish the principle for which they contend but to show that this and all other cases of armed violence on the part of one nation or its citizens against another, is in fact war ; informal war, as they call it, in contradistinction to one preceded by a declaration in due form.

Well, then, let us inquire if the principle for which they contend—that the authority, or the sanction of his govern

ment, exempts an individual from all responsibility to the injured government, exists, even in case of war.

Turning, then, from a state of peace to that of war, we find at the very threshold a very important exception to the rule, if it exists at all, in the case of spies. None can doubt that, if a spy is detected and arrested, he is individually and personally responsible, though his pockets should be filled with all the authority the country which employed him could give.

But is the case of spies the only exception ? Are they alone personally and individually responsible ? Far otherwise. The war may be declared in the most solemn manner; the invaders may carry with them the highest authority of their government, and yet, so far from exempting them individually, officers, men, and all, may be slaughtered and destroyed in almost every possible manner, not only without the violation of international laws, but with rich honor and glory to their destroyers. Talk of the responsibility of the government exempting their instruments from responsibility? How, let me ask, can the government be made responsible, but through its agents or instruments ? Separate the government from them, and what is it but an ideal, intangible thing ? True it is, when an invading enemy is captured or surrenders, his life is protected by the laws of nations, as they now stand ; but not because the authority of his government protects it, or that he is not responsible to the invaded country. It is to be traced to a different and higher source—the progress of civilization, which has mitigated the laws of war. Originally it was different. The life of an invader might be taken, whether armed or disarmed. He who captured an enemy had a right to take his life. The older writers on the laws of nations traced the lawfulness of making a slave of a prisoner to the fact that he who captured him had a right to take his life ; and, if he spared

it, a right to his service. To commute death into servitude, was the first step in mitigating the horrors of war. This has been followed by a further mitigation, which spares the life of a prisoner, excepting in the case of spies, to whom the laws of war, as they stood originally, are still in force. But, because their lives are spared, prisoners do not cease to be individually responsible to the invaded country. Their liberty for the time is forfeited to it. Should they attempt to escape, or if there be danger of being released by superior force, their lives may be still taken, without regard to the fact that they acted under the authority of their country. A demand on the part of their government for an immediate release, on the ground assumed in this case, would be regarded as an act of insanity.

Now, Sir, if the Senators from Virginia and Massachusetts (Mr. Rives and Mr. Choate) could succeed in making the case of the attack on the Caroline to be an act of war, it would avail them nothing in their attempt to defend the demand of Mr. Fox or the concession of Mr. Webster. McLeod, if it be war, would be a prisoner of war; a condition which, if it protected his life, forfeited his liberty. In that character, so far from his Government having a right to demand his immediate release, under a threat of war, our Government would have the unquestionable right to detain him till there was a satisfactory termination of the war by the adjustment of the question.

To place this result in a stronger view; suppose, after the destruction of the Caroline, the armed band which perpetrated the act had been captured on their retreat by an armed force of our citizens; would they not, if the transaction is to be regarded as war, justly have been considered as prisoners of war, and to be held as such, in actual confinement, if our Government thought proper, till the question was amicably settled? And would not the demand for their immediate release in such a case be regarded as one of the most insolent

ever made by one independent country on another? And can the fact that one of the band has come into our possession as McLeod has (if it is to be considered as war), vary the case in the least ? Viewed in this light, the authority or sanction of the British Government would be a good defence against the charge of murder or arson, but it would be no less so against his release.

But, this is not a case of war, formal or informal, taking the latter in the broadest sense. It has not been thought so nor so treated by either Government; and Mr. Webster himself, in his reply to Mr. Fox, which has been so lauded by the two Senators, speaks of it as "a hostile intrusion into the territory of a power at peace.” The transaction comes under a class of cases fully recognized by writers on international law as distinct from war—that of belligerents entering with force the territories of neutrals; and it only remains to determine whether, when viewed in this its true light, our Secretary has taken the grounds which our rights and honor required, against the demand of the British Minister.

Thus regarded, the first point presented for consideration is ;—whether Great Britain, as a belligerent, was justified in entering our territory under the circumstances of this case ? And here let me remark, that it is a fundamental principle in the laws of nations, that every State or nation has full and complete jurisdiction over its own territory to the exclusion of all others—a principle essential to independence, and therefore held most sacred. It is accordingly laid down by all writers on those laws who treat of the subject, that nothing short of extreme necessity can justify a belligerent in entering, with an armed force, on the territory of a neutral power; and, when entered, in doing any act which is not forced on them by the like necessity which justified the entering. In both of the positions I am held out by the Secretary himself. The next point to be considered is ;—did Great Britain enter our territory in this case under any such neces

[ocr errors]

VOL. III.40

« FöregåendeFortsätt »