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Tous les autres exemplaires originaux sont film6s en commenpani par la premidre page qui comportn une empreinte d'impression ou d'HIustration et en terminant par la dernidre page qui comporte une telle empreinte. Un des symboles suivants apparaitra sur la dernidre image de cheque microfiche, salon le cas: le symbole -^»-signifie "A SUIVRE", le symbole V signifle "FIN". Les cartes, planches, tableaux, etc., peuvent 6tre film6s d des taux de reduction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seul clichi, 11 est film6 d partir de I'angle supdrieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la mdthode. 1 2 3 1 2 3 4 5 6 SPEECH g> OF MR. CHOATE, OF MASSACHUSETTS, ON TUB CASE OF AliDXAI^'DER McLEOD. 3KI.rT£RED IN THE SENATE OF THE U.NITED STATES. June ]1, 1841. WA S H I N G T O N : PBIRTKU AT THE KATIORAL INTELLIOXHCER OFPICB. 1841. M < > I * \ '• SPEECH M * < » t / V 4 ^u rnn of Mr Rives to refer so much of the P.esi.lent's Message as^r;::: i!' i^ :^i'-^ to .. Co..niUee on Fore.n A..i.s .e.g under consideration-- ^^ ^^^^^^^ ^ ^^^^,^^^^t ^f Mr. Choate «;;^^ l^.'^J^I^^J 3^^rdiscus'sion which couhi produce no the crowded time ot the senate \n '» , ., f,iendsot the Sec- practical results. But the suhject wa fo, ced uj on t, c ^^^^^ ^^ .^_ ?etary of State and ^^ i»^t ^dministn tion it os.c^^^^^^^ g ^^^^.^^^ ,„ terest intrinsically, and {^'^r^fl^'-^.'jlf . "^ti^.^J:, " an mopriatHy to beh.n^, Foreign Relations, to who.n 'V'^'^L.n!! it ess matin cly considered he ventured to submit a few ^J-|^^ ^^^^^ ,ou^^ to\he splendid than he could have wished. \ ^/^^^^^^^^^^ (M,, Khes.) and masterly speech ^^f ^.^enf or Horn V . r i , ^ ^,^^ ,^j^^^ I confess (he P>:«^f ^'^^f ){ f ^^'i'" , .S the Senator fro:n I'cnnsyl- ofthe Secretary 01 State to Mr. Fox on wm^ ^^^.^^^^^ ^^.^^^ vania (Mr. Buchanan) has commento.i, It j^cenc .,,, ,,t ,nd much ability, and that it ought to and ^vould sati 1 J b ^ ^^ feelings of the whole American P^'^P^^' .^^l^^^^^; . 'Vot a. unimportant sound; clear, and --^^^^^deT^o ru^ , -/timid; consideration, good; ^^'^a"^^' ^^^^'7^"°' ' ' national, American— and the wholo tone, temper, and ^^»^J^^ij;:^^^?|,;objectic'ns taken to it worthy of the man, tl^e cause and he ^o >n i J conceding just in this debate seemed to me to ^e ^s cssen j ^ ^,^^ j^ ^vhat he did, and by denying jus ^ at ^JJ^ ' '^^.^^^ ^^^ f.lse' position it to withdraw this controversy ^^°"\^''^,.>^';,,X„t jt „,ay be adjusted with rested upon ; and to place it «^V",f\|7;t^^^ t^^ /^^^^ baltle the ap- ease and honor, or, il we must ^'^'^'i'^f''^^^^^ just pride. probation of our own ^o'-'^^^^^^^^'.^^if j,^VJemen, or, at least, one other, So the letter struck my mmd 01 «S^^^^^^^^ by the regard it differently. And in the ^^^'^^ P^^"^: ^^°,. ^^^ concession of the distinguished Senator fro-n P^""«>'V;"^„Ved am^^^^^^ '^ ^"^'''^^ Secretary that a person in the ««^^^^^ .^^ PJ^^fj^^^^ law. He to immunity, assumes an "^/j^^^^.^ .P/X .iinion that we may well enough . argues that it does not -and he hold the op "lon^tn ,^ ^^^.^^ hang that person for robbery and mudertha^^ ^^^^^ ^^ ^^^ conformity with the r^^^/ived amelm ated ^^^^^^^ __^^^^^^ ^ ^^^^,.^^^^. ^^ nineteenth century, and ^^^hou ju t y bnngin„ individual of any disapprobation from any of the f^""'^^«^^°;. 7"\i°i*3 Jeat question of the family. Sir, let us pause for a moment on tins grcai i nations. . c^«,.o*orv nf State ' Why only and cx- What is the concession of the ^/^'^^'^^jl^^^ • • Clime a|i;ainst the municipal code of the country upon which he thus helps to cany war ; that he is not punishable as lor such crime by that country ; and that the responsibility rests upon his own Government alone to an- swer, as nations answer ior their crimes to their equals. That is the con- cession. He docs not deal at all with the case of a soldier straggling away from his colors to commit a solitary and separate murder. He does not deal with a case of alleged excess of authority. He supposes him to obey the precise directions of his Government, and, so doing, he declares him clothed with a personal imnuinity. It has h'^en said in some of the discussions of this subject, although not here, that Mcl^eod left the Caroline alter the whole object of the enter- prise had been accomplished, and committed an unnecessary and distinct and malicious murder on shore. I can say only to this that no such fact forms any part of the basis of the opinion of the Secretary, He had either never heard r>f it, or he disbelieved it, or he assumed that the courts of law or the Attorney General would allow its proper influence to a discriminat- ing circumstance so important. if you turn to the fourth page of his letter you nriy see that the murder for which he supposes McLcod is indicted was " a murder alleged to have been committed in the attack ," forming an inseparable, very painful part of the entire military violence exerted to capture and destroy the vessel, and not succeeding it. For the purposes of the concession, he ti-.'ces for true the express declaration of Mr. Fox, " that the transaction on account of which Mr. McLeod has been arrested and is to bo put on his trial," including the homicide as an unavoidable incident in it, " was a public transaction" conducted by Her Majesty's Government. Such is the concession. I have the honor to submit, /rs/, that the con- cession is right in point of international law ; and then, that it was the duty of the Secretary of State to make it, and of the Government to act upon it, exactly as it was made and acted upon. In entering on ihis investigation, then, you observe that, to a certain distance, we proceed on all sides of the Senate harmoniously together. Thus, it is admitted by the Senator from Pennsylvania, and"^ by every body, that persons taken fighting, or for having fought, in the battles of an open, general, regularly declared war, are not responsible as for crime committed by the act of fighting against the country which they devastate and wrap in mourning and blood. They become technically prisoners of war. As such, on a principle of policy, as a mode of prosecuting war, they are subjected to restraint, imprisoned, held to ransom, exchanged, and otherwise disposed of, with more or less indulgence and humanity, according to circumstances. But criminals, robbers, murderers, by the act of fighting, although the act involved the destruction of property and life, they are not, by the theory or practice of any civilized race of men. Thus far we proceed together. On this admitted principle we all stand ; and from this we all take our departure. The truth is, the na- tions have agreed, and that agreement makes the law of nations, that it is a duty and a virtue in the individual citizen, his first duty, his highest vir- tue, to be obedient to his own Government. They have agreed to re* gard him, as our own Decatur, the elder Decatur, said of his children, as the property of his country. Withersoever he goes, whatsoever he does, wheresover he lies down slain in battle, in obedience to her sacred and parental command, it is, as the general rule, not imputed to him for crime J> } I I < ..l> 1 the general eon5e.a«i 2''";md,,^,;; 'a nulion ^^^ „,^ eomm.nJ of the whatsoever is done by the nicmucis m ^ pub c, p'?^'"'°::tt:ar:-'::d?-hori"Xurl^-^ IS the act of the nation , auu i ^. nation, and not ui'on the .„e ,aw of nations .s charge, e p n^x,,._ ~.t,o.^, ^^^^ ^ ^ Terr^triX ..e p,.rticu.„r f^-f ™, ^'i "i^-'f ;^^ ":';:ot lion, is, by the law of natrons, "o P« ■^o" , i hw for any' act in which therefore, l>« P""-''^^^' ^""^^^ ."/l^I ''a''d't ho a.ion a's the agcnt.'^ it considers them only »\"f ,'""'""" "J,-' '. i,„aics of troops wliicli, dur- f d '^Urth^-'r^i't^ndTL'ToSld'^rre tZ ^Sed gnil.y of a eri^e against any law of a State or of the Lnion ^^^^^ "setting out from this adnnjt.d F" ^'l'^^^^^^^^^^^^^^^ hiai the specbl circumstances under ^^^^^^ ^^/j^^j^'^t^^ar^^^^^^ Uim from the pre forth to this midnight work « . f.;,^fy ^^^^^^^^ humanity and tection of the prmc.p e o »"f ^^'^^^VnTv^of^^^^^^ What were those .visdom have re ieved and adorned ^^^^^^ ^^ ^^.^^^. ^^ special circumstances ? hxactly I'^ese ix exnedition of force, /L/o, for the ti-, for f ac. rn a nnl^^^^^^^^^^^^^ TofjZU having the planned and sent abroad b> ^' ^'J ^^^a'^/^ni is blood : sent abroad, not to right to exact h.s «^^^'^\*°,*^'",^'? ,„ ^^n it called him out of his bed, plunder, but, as it represented to him when u c . i ^^ Ld disclosed its purpose, to do - ^ . ^^^ jf^^n^^ie ' ct, not pree'eded liorlia^^njXr.^S^J^^^ principle of personal •■e^Po^f^'^d'^ proceeding to determine whether that Let me say, then, f^ist, that mproceeam .^ ^^^ principle shall or not be ^PP^/^^J.^^ %given sp^^^^^^^^^ « ^^^^^^ ^ver-varying developments f , f "f ' ^" ^^ '^^ S and liberally ' fa- Avill be, and ought to be, to take V^^^ .P'";Xi4''«„Xnal responsibility, vor of individual immunity, and ot /''^^f ';\ ^nSe into the law bf Every motive which operated to ^"/^od^^.'^^^^a ben?«naK^ and nations at first, is a motive to an ^"^^^'f^.^.^jl^'Sd a^ advance on application of it to-day. »ts adoption oiginUym^^^^^^^^ ^ the ferocious systems of ^'l^^/^^^^^^^^^'^^trand wisdom carried the triumph of reason as well as o humanity. Po^ ^J'^ .^;^ \^ t, relieve war .vorld'up to it, as wel as "ght fe^ ^f ^^ e s er t g Wk to peace, which of its horrors while it lasted ; to "^^^^.l^^^^.^; ' f.^^ ^^t of the millions is the true condition of man ; to am^ ^'^^e th^ ^^ " ^^^/^^ ^,. ,,i,asra whom, in one age and m one ^ouu^/^^f'i-f' 'up ^^^^ itsllf from a crowds into the ranks of their country ; and to ^^^^^PJJ^^ ^^ ^^ -^ vul-ar and dreary business ot general but.he.j to a se . ,. 6 4 which f^roat >?otiIs may en^.igo without (lofj^.adation and without detcrio- ralion. These were the motives in wliicdi the principle was made part at fust of the I nv of nations, and every one of them is a motive to fiivc it the n)o-.t cxp iM'led ;:})p!ication in the light of this hotter day. Sir, it is one of l!ie htightes-t f;h)iies of civili/ution. Do not cause it to ho dimmed by a penurious and reluctant interpretation and application ! To do so would he to misconceive the direction in which the world is moving. ( i]o not know when wars shuli wholly cease, hut I helicve, I trust, that as the world comes nearer to that time, it will regard war more and more pvcry day as an enormous evil, if a necessary evil, and will desire to re- lieve if, more and more every day, hy the tWlices of Christian and of chiv- alrous fotheirance towards individual actors, struck down, disariiied, and uniesisting. Giving, then, to the law of personal immunity that enlarged effect which the time and the country demand, let us attend to the special cir- cumstances, one hy one, which mark the case of McLeod, and see if they do or do not leave him the protection which is thrown round the captive of open, regular war. In the fust place, ohserve that the expedition on which he went out was an expedilion oi war. It was not an expedition to rob the mail, or to loh a hen roost, or to throw an assassin or spy into an enemy's camp, by which happy analogies we have had it illustrated. It was an enter- prise of war ; undertaken imder the iron responsibilities, surrounded by the iron rights of war. Its exact legal denomination is ^^ infonnnl, in- solemn hostUil >).'''' Let us call things by their right names, and hold t^ng- land and hold ourselves up consistently to this view of the transaction. Look at it. There was a for»;iblc temporary occupation of our territory by an armed foreign body, acting in organization, sent across by a foreign Government, as a Government, not for plunder, but as an alleged grave measure of state policy — for the alleged defence of its own soil and its own law against revolutionary invaders fiom without. What sort of act is that, sir? The mover is a Government ; the inducement a high reason of state ; the instruments and the effects such as ordinarily do the work, and mark the giant tread of war. Armed men violently assail a vessel moored on our waters, owned by our citizens, reposing, as we allege, be- neath the protection, not forfeited, of the folds of our flag. It is the cry of brief but actual battle, which rises above the murmur of that onward, unreturning stream. The peace of our territory was disturbed, its sanctity was violated, the charmed life of an American citizen was taken in fight, the property of an American citizen, itself part of the general wealth of the community, was destroyed. This, sir, in the language of the publi- cists, is " informal hostility" against the United States, and the responsi- bility of England, who ordered it to be committed, and the immunity of the soldiers who enforced the order with the bayonet and cutlass, result, of course, according to the principle on which, as I have said, we all take our stand, and in which all publicists agree. I do not say that by this act England intended to begin a war on the United States, or to impair our strength, diminish our treasure, or insult our flag as a nation. Certainly not. But the act which she does is to ihvade our territory forcibly and unlawfully, for the purpose of reaching and destroying the property of one of our citizens, which she had no right so to reach and so to destroy, an I J to cfl^et that pur^e by rrf^;;^:^::^!^^^^^ in hatlle. And tins act ,9 »^;>«"'' ^ '^P;;;^ J,' „„,, the processes, and ae- rated, and they are outraged \ ,\^'^^^^^^^^^^ nation and every .nan cording to the forms 0^^/'' ^ ^v icli he does, and their necessary eon- must be hoUlen to intend the f.^^;^,,^ '^ .f^.^ecedins iVom the attack on seHuences. ^'- do you '^^ Lr six'teen ships of war -^^'l;* ''f ^^"^J^j^ij' ^ ^of universal do.ninion. strength by which he ^fV^J^g'^il^'to Copenhagen, bon.barded it, Thereupon she sent Admua ^^"^ '^"^ ;° 'and carried olV the whole killed and wounded above 'V;^ -";,;"f,/^^^^^ territory for the Danish (leet. That .s «^;.jj.^'^f '/iJ,";'', p^ of which, as against Den- purpose of possessing hcrse t o t^'ve ^^" \^^ r^^ ^^^ purpose of weak- L.r'k, she had no right [o take po^ s i n , i.o^t^.^. ,\ J^^^ ^,^ ening or insulting her, but to I '^J^"^ ;"^jf ^^ ,,ere. She invades our instruments of annoyance '^J?''^.« . ^/ ,^ ;,3e "^ possessing herself of a territory with military 'f''^^^'f"' ^^'Jfn^o tht thus to take possession; vessel, of which, as against us she ^^^ ^ f bein., in other hands, the not to weaken or insult us, ^uto event . s t) ., ^^^ ^^.^^ ^^^^^ ^^ instrument of annoyance ^^^^^.'f Xle national rights are invaded. In infonralwar against the "f ^«" jj f „Vthe i^^^^^ the capture ot the affair of Copenhagen, ^^'^.^^^f^ ^^^^^ jf^at, it had been Danish mer- Danish Government ships. J^^Jl^^f ^^^ \^^\^,^ coffers of France, or to chant ships, lest their cargoes might S« *« " ^^ ^.^^^ been at all the transport French '""">t'°"«.^f,^;V'l''3,!^ > Nay, if Denmark had been less an act of hostility against l^e"maik • my, ^^^.^^ ^^^^ ^^^ neutral, and the object had been t«/" ^"^ ^^ ^ '^;";„ , hostile aggression to Copenhagen i;or shelter. It would til have ^^^^^ ^^^^ „p,„ , against Denmark herseli. /.^^^^^Xe more slips, more men, greater grander scale than that upon the Cai oline , ™°' » ^f ,,,^,,. But the Lmes,a more P-^uresque arrang^ement o t^^^^ ^ Sequences, national and essential character, the ^^S^^ "^•"[; '.^VG^overnment trespasses on the Latent of the trespass, war on the ^;^,,,, circumstance. The But I advance toj^ second and tar mo. e p ^^^^^ competent to expedition in which he served was the ««t °^ '^ knowledge or ap- compel him to serve. Independent of'^"^ P^\"' '^^ \ ^^holly .eject the pZd of the act by the mother country, it ^^"^ ^'^/..^uthorized pro- Lggesstion that this faring enterpsew«a^ ^^^ ^^^ ^^ ^ celding of individuals, and that ^ ^"^^^^^^^^ it was the work of a ernment by ratitication t'«'" J^^^^""X" the right to exact McLeod's Government, and of a Government havin^ the ig ^^^ ...ducted the obedience to the last urop of his bloody VV ho pi ^^e explicit attack ? The colonial authorities buch >«, o ^^^^ ^^^ ^^^^^ declaration of Mr. Fox. Such is the Itgal con^ ^^^ ^^^^^^^ ^^^^ g.^^ by Sir Francis Head i" ^J*- .^^f ^^^^e coTonTai authorities^ specially .m- the matter stands exactly thus, me ^ 8 Kli powered Colonel McNah to defend Her Majesty's territories, and to de- fend Her Majesty's subjects. Such is the concurrent Ntatcn)ent of Mr. Fox and Sir Francis Head. For this purpose they expressly empowered him to adopt all needful defensive measures, and they thereby clothed him by inevitable imjilication with the discretionary power of judging what measures were needful. In the exercise of that discretion, he judged this measure to be needful, and hq adopted it. Now, for the pro- tection of the soldiers by whom it was achieved, it is precisely as if the colonial authorities had directly and in terms planned and commanded it. Colonel McNab for ibis purpose conclusively represented them. How could a common soldier pronounce or conjecture that the judgment of the official representative was erroneous ? Sir, he had the right, and was bound to assume it to be the judgment of the colonial authorities. And who were they? Why, as between them and McLcod, and for the pur- poses of this question of individual im:nunity as between McLeod and ourselves, they were his rightful and only Government. Nice questions may be moved on the competency of a colonial Government from its sub- ordinate relations to the imperial head, to set on foot an enterprise of war. But it is every where conceded that such a Government may un- dertake defensive war. The mother country, l)y the act of ?stablishing it, clothes it with the power and imposes on it the duty of defewding itself; and it clothes it also with the power of judging lor itself in the first in- stance how that duty shall be done. When, therefore, it resolves that a particular measure of war is necessary for its defence, and that the crisis requires a blow to be struck at once, and without waiting for advice from the paramount power at home, it may call the whole colonial population to arms by day or night, and obedience to such a call is as rightful as un- avoidable, and as cfTective for individual immunity as the obedience of a conscript or an impressed seaman. Such was this oase. Was McLeod to say that the colonial authorities misjudged on the question of necessity ? They told him the defence of the territory and of the Constitution of Up- per Canada required this act. Did he know better? Did he command a wider horizon of view ? Could he be sure he had all the elements of a sounder opinion ? Consider that to the colonial residents the colonial Government is every thing. It is all of majesty, of monarchy, of aristo- cracy that he ever sees in his life. To that all his duties appear to be owing ; and consider, too, that the spirit of this grand principle of indi- vidual responsibility is, that bona fide obedience to his actual and lawful Government on a requisition of warlike service shall never be reckoned a crime in any man. I do not mean to say that the subsequent approval and adoption of this act of the colonial authorities, by the mother country, are not of them- selves equivalent precisely to a previous command of the mother country. Under the special circumstances I think they are. But had the destruc- tion of the Caroline been the act of a mere mob, such effect could hardly be ascribed to a subsequent ratification. It is because it was the act of a local government ; subordinate indeed, yet competent to defend itself, competent to judge for itself on the mode of self defence, in the first in- stance, and, in the exercise of its own discretion, to call out its subjects to an act of war ; it is because it was the act, not of a mob, but of such a Government, that it is susceptible of a ratification by the imperial head, ■. * t k 9 xL •»., lint fnr the sauio icnson ; .hich i. o„uivalcnt^o n P-^--^',,,!!: t t:ca» .overn.cnt call, to a,n,H; such '-^'^^^'^'^l"" ' ";;;;;^^^^^^^^^^^^ here it has hcen, then, nccordinj; to ^^^'X T^^^^^ u „• (he sovereign %l title to personal «'""--;>' JJf^'f^^^'.^t^ th^ approhation ren- ratify the act of war undortukon by >'«'"">; au horitv upon U ; 1 ! 7tho war solemn by rejhcln.^ ''^'^^ '^^^ ^^ 1^,',!'.^ nurUmiuini. 206 «o that it obliges <»!%- 'f ,;; 3' :^ act ol the in-livi^lua! <' Hut if a nation or a chief appioNes «" ;7 . , ^y is to consider the. itlh.n becomes a public ---)-' -y^;^^ 7u oK'l'c citizen was, per- nation as the real author,/ '^^tu'hoA 2 chap, 4, sec. 74. haps, only the •'>«^''''"«'^^'' 'T;'^^^^^^^ , (Jovernnunt conuuaiu ing a Vou have bclorc y^^^^^^^^^v to shoulder his naisUet for the d ^^nce subject, who was bound to obey, to shou^^c^ Pennsylvania tells us, that of his country. It is true, t^;; '^^^f/^^ J^^,^ ,,.,{ conclusion f.on. the McLeod was a volunteer. But he ^1^\'"'^,^J' " ^^ ,,j,, admitted doctrine tJ: undoubtedly '•-^-.^-Jirt^'^e'o-s' 'between volunteer and of i.uernational law, no d.s nction '^ J^.*^ .^r^.^^t^., ^t page 401, is a di- any other soldiers. . He will •'^'"^'^^^Jf ;^^ J f t, ,•. can be no distinc- rect authority for this. n the ^^^^^^^^^^^^^^ at first, lor a tion. The regularly enlisted sol l.eic^^^^^^^ a shorter term longer term and for a 1 service the vo mtcc .^ ^^^^^^^ ^^ ^^^^,. and for a special service. B"^ ';,"\\\"^^^^^^^^^ ^n the same plane ol immu- tative public will, and l^?> V ^^^wh.' great concern of all nations U ,8, nity and hazard. Consider sir what a greai -^^^^ i,,v on thi8 and of ours more than a of^*^;" ' !^^J,^ ' wiling and ready to leap to arms, subject that shall make their "\^^^' ^^ ^^j^ '.^^ of their country. «t half a moment's ;-^'';';S't/ase of a Government commanding a sub- You have, then, I repeat, the case oi u^ ^^.,ji^,„ the lect to go forth to an enterprise of war. J^^ '^ j ^^.j^j^y, ,ve all agree erms and spirit of tb^ .r^^\!;f'";;f ,U j^^^^^^ the pccuU- surrounds the «"l^''^'-,°* %^^"l\l'utr^e v ce from the general trade of arities that distinguish this P.^tticular se.v .^ ^^^^^ ^ single act of ^ar ? Why, sir, tbey are said to be these ^^^ ^^ ^ hostihty, not preceded "^r fo"^^ is aU t>"e; but for the objects of declaration, and wholly unjust. 1 his ^«/*" S^jj^ ^t^ ^^d the practice of this inquiry it is wholly ""^jf 'f^^s nd^ e'\^es of hostility. War .s n3tions\ecognise various ";,?f^.«;,^^^f^ ^t alwfys preceded by a declara- not always general or ' P^^^'*^;*' "^'i^ "^^ single crushing blow. Such tion. It sometimes begins and ends with one si g ^^^^ ^^ ^^^^ ^ las the attack on ^^^P^^-f^'^^.i'b^ single individual, under a l^. limited to one single act of repusals, uy a ^ ^^j^^^^ ,^,3 ghip, cense communicated to ^-.^^^"f;^^ ^ ter^o marque to help himself to • and his own Government gvcs bun leUer ^4.^^^^^ any declaration another. In point ol fact, t^,°' ^^J^^^^^X Aasb. Modern history at all, at home or abroad. ^ he bolt out ^^^^^^^^ ^^ is full of such instances ; but I spaie > ou i^^^^nity to the soldier Bir, what 1 would say is, that,fo« the purposes ^^^^^ ^^^^^^^ ^^ ^^^ and sailor, all these modes k«nds, and degrees o ^^^^^^^,^,1 ,et.on, ,1 . L 'rur.^r nrp all and all aiii».e muuca & . — ^ ,i,nsibility, tliey are all one and the same thin}^. In reason it must be so. Consider that a leading object of this principle of immunity is the protection of the unfriended instruments of ambition or patriotism who furnish the rank and file of war. it is to protect the com- mon soldier. And what an unavailing, uncertain, ensnaring tning it \yould prove for him if his title to it depended on such shades of diversity as these ! Mow does he know whether the war, to which you hurry him away from all that is dearest to him in the world, is just or unjust ? How does he know by what heralds of declaration it has been preceded ? How does he know whether the desperate midnight enterpiise for which you have called him up from sleep is to be a single enterprise, or whether it is designed to kindle the fires of a war that shall encircle the world ? Sir, he knows only that his own Government, in obedience to which he was bred — that the land of his birth— that the land of his fathers' graves, bids him go forth ; and that, if he shrinks for a moment fiom his post when the storm of battle rages highest, he dies by the hands of his othcers ; and he goes forth relying on the armed but manly justice of civilized war. And so are* all the authorities. The Senator iron v'irginia recited then, so copiously to you last evening that I ahall spare you the repetition, and content myself with a I eference or two. The Senator from Pennsylva- nia and the Secretary of State t3ll you that the attack on the Caroline was unjust. But look into Vattel^on pages 380 and 383, and Rutherforth, 2d volume, page 546, and you find that they concur that the injustice of the war does not affect the soldier's title to immunity. If it did, the nations would at once return to tlie murder of prisoners ; for was there ever a war in which each belligerent did not think his antagonist in the wrong ? But you say this w.-'s only a single act of hostility ; breaking out in a time of general peace, unannoun-^^ ed by any declaration. So it wa». But Rutherforth expressly dLclarss that this does not v.'ithdraw it from the law of '"mmunity. I read at large the passage from page 548 of his se- cond volume, and commend it to the meditations of the Senator from Penn- sylvania. " Th's external lawfulness, in respect of the members of a civil society, extends to public wiis o( the imperfect sort, to reprisals, or to ether acts of hostility." Such is the doctrine of this publicist, vindicated and illustrated by a masterly train of reasoning ; approved by the heart and judgment of uni- versal civilized man. ;\gainst this authority there cannot be placed one solitary act of a Christian nation for the last live hundred years, nor one word of any wiiter who undertakes to record the existing systems of inter- national law. What is the nation now on earth, or descended into the «;raves of empire ; where is the mode»"n Christian nation that has shed the blood of a prisoner because the war to which his Government detached him was informal, insolemn, unan',ounced by a declar;:tion, beginning and ending with one single act ? Call up the nation, if sueh there is or has been, and let it answer to the outraged spirt of law ! Did Denmark claim the right to do such an atrocity ; iiumbled and exasperated by the repeated bombardment of her capital ; did that ancient and gallant race ever dream of avenging the defeats of the castle by the triumphs of the gallows r Did Spain, the most formal the most punctilious of Governments, and adhering !'• 11 «,e .0. .en».™s,y .0 Uje s.w ^a p..en,ive ;^;'-^- ^^^ Hic3 of .he oia fashions of vi.a'a^P'';^"^^ ,_.^^,^„,,, ,,,!,„ .eUTn.ng l,om •^ No c n you flncl, as 1 have sa.d ■^J'"'^!,^;^ nlWcUn^^^- K-cl'', f the actual law of -'7'' » j;';'" l^uUl^y only seen> .0 00 .rtict «,. h .t. . Grotius, seen, lo conflict n ith it. "'\ .' , •'n(,t availed himsell of, be Fven these the Senator from I'o,""?^ \'^"':' '' ,„s «onius, his studio., Ixs cau'e he k-.o»s that Orotius, aa.mraWo lot h . ^<^^^^^ ,,,„ ,.,„ j^- ™s\ en'a.sed and excellent sp.n , .ved >f° ^J* ^^ ,ii,,„„e„t of his own veTopm nl'f his o«n grand r"""^^^^^^^, U been slowly bu.l Bh lanthropic v^ishes. '1 ho «'". "f, '■'" " ,", ,-0 recourse to writers, far Csince his time, and to learn it we '"=" ^^.^ ;„ teins able to record hfs'rferiors in capacity and learning, but 1mm o^.^ ^, „^ Aeame. orated theory and pract,«. ol » be ^ "^ >„ ,|^^ ,„„,„,,„, I have cneoT these can you cite »"y''''"|;",i°,'ir thought he had discovered relied on. The Senator Irom ^^"nsylY. j, , ^^^|^ 3^^ ,!,„,„„ ome such doctrine »» h«= "^'^t, f om V rR "ia was entirely accurate in fiT nf Vattel. But the Senator V°'" .;''>. refers to the ease of all h sVbleivattn upon this pass.ge • ' -^,^'\ .•^'Sv, .Lent, and to nothins dividual acting withotitautho 1 omta^^^^^^^^^^^^^l^^ , j else. And then, m suppoit ol ' '^ l™" ^,,„, requires to be preceded that as the law ol nations is ho den "»«. "° ,^ \,,, ,f Nations, 12 ; bv a declaration. Martens, ?''' edition. Defensive war never re- l^tof Kent's Commentaries .-, 2d e ton ^^^ ;,,,,, jefcnstve war nuired it according to any 'h^"') • ; •'" ,,;,„ „,,( he was summoned fo h. to hich McLeod'sGovernmen a,su.ed .iim^ ^^^^^.^„^^ ^u.Uy 'The ant of declaration, theieloije^^^^ ,„ j^^ge better If ,l,e indecent and "^-■;;^'';,:','',:^%'f resorting ^o a particular measure 'r ^>:d?e:=fo" f e^ '„°r''>;tdfarve'S;it;Vr:? victories, ay.ahuudredyearso. .0. tnrv would not wioc away. ■ y. ^I^en, in point of m- ""Vhe concessl,.n of the Sf -f// "^ ^'"j! .„" l^^ni; thinks he ought not ternational law. But the Senato. f'™j5,",",j („ the second place that '.rhave made it, -is" or w..n j < jbmi.,.^_^^ ,^^ ,^^^^ ^^^^, „„ „, ex- tip nuffht to have mane it, am. m^ .„il\, . it was made and acted on. , ,2,(, of March last. What v" he duty of the Secretary « SWe °n H e ^^^^ ^^ when McLeod, guilty of no -'^""'l^l^^^ZlL, had been indicted, York by participation in the f ■>^'^ °" ' !^ „„ (he 22d of March, S'S lor Lirisoned, and' ordered or t™' °,^^ ""^ ," reasonable anxiety, lest he such crime, under circumstances J'f''> 'f j„„s popular excitement; Jght fall a victim to ^ »»'."" ""came fo ward, announced the doctr.ne . -'«'-."-,S"2^;;;wra'l.row ;» beV., a„d Oemande fa Her Msijesty's n™-''!,'^,''''^^ ™ be iu" , and demanded that -„f international lai, which we ?! kri^nJnnit rd;r it > What was .he McLeod should be holdeti eni.t.e- to J !'• 12 SRcretary of State to do ? Should he have wrapped his diplomatic mantle about him and have answered, Sir, I do not know about your doctrine of international hw ; the American Government is not advised exactly ■whether it may bans; prisoner? of war or not ; besides, it happens to have nothin"- at all to do with the matter : Mcl.eod ic in the hands of the State of New York ; a great and patriotic State, Mr. Minister, giving forty odd electoral votes ; slie will do what is right ; if she hangs him, why then we shall know that he deserved it ; and if she does not, so much the better for himself. Should he really, so saying, have bowed the minister out, and have retreated into an Epicurean heaven of indifference and noncommital, until he and you were startled by the thunder of an enemy's cannon— a music I acknowledge at which a brave nation has no great objection at any moment to wake up ? No, sir. I submit, on the contrary, that the duty of our Government was perfectly clear ; to avow its acknowleag- ment of the doctrine of internaliond law advanced by the minister ; to de- clare its purpose to do what it constitutionally might to secure McLeod the benefit of it ; to do it ; and then, having removed this disastrous interlo- cutory controversy out of the way, to demand satisfaction at once of Eng- land for the burninji: of the Caroline, as that language is understood among rations of the first class. To simplify the matter somewhat, suppose that McLeod had at that moment been in our jail, in our courts, instead of those of New York, then, I repeat, it was most palpably our duty to have con- ceded the proposition of law ; to have expressed our assurance that the courts would acquit him of the accusation of crime against our municipal codes, and even that the Attorney General representing the Government would enter a nolle prosequi^ thus committing him to the disposal of the Executive as a prisoner, o'- a quasi prisoner of war, or whatever else his legal character might be ; and then and thus having washed our hands clean, and set ourselves right before God and man, to call this island mis- tress of a thousand ships of war to instant account. That this was the duty of our Government is too plain to be debated. Was it not its duty to cause this nation to keep the law of nations ? Was it not its duty to be just? And was not this bare justice to McLeod, to England, to the universal spirit of humanity ? Was it not its duty to pre- serve peace if it might be had with honor, and if war must come, to se- cure us one in which a Christian people might draw its sword ? Now, sir, the difficulty was, that, on the 12th of March, we were in an eminently false position. With ample materials of the highest tone of complaint, per- haps even of reprisals or war against England, for herconduct towards us, here she was holding us up before all the world, for a little piece of our own conduct, in which we were, or were apparently, just about to be en- tirely in the wrong. With the burning of the Caroline, with the ground- less yet pertinacious grasp of our territory in the Northeast, with the re- peated seizures and searches of our ships at sea to complain of and go to war about, if a wise and moral people had a taste for such entertainment, we were actually just about compelling England to declare war on us for hanging one of her soldiers because he did not run away from his colors ! Why, sir, this was not a position for men of sense to stand on long enough for fler Majesty's minister to pull off his hat. Policy, honor, justice, hon- esty, humanity, all required us to quit it in an instant, "vhy give Eng- gland such a perilous advantage as to make up a false issue like this ? Why unite all her classes, and every man in every class, in what they must 13 > Why alienate the sympathies ' •' . . 11 ..o o r>iim of the world hy such a he is . \. think a holy war ? Why alienate ^'^^ syup-."^" thins ? Why commit a blunder as well as a nme J^^^^^ ^^^^ ebly armed'that has hi. quarrel J^^t ? Why shoc«. ^^^^^^^ ^ g.^^ of America by turning away ^^^"^ J"S^J^ of this country would choose to if you speak of blows, 1 believe t»e people oil J ^,^^^^^. ^j^^^ b/seen'aiming full at the front ^/j-^P^.^f.^.l^l^d cuffed, to the gallows, drao-ein'' the servant, unarmed, ""'''^""^V' „„k ., field by a nation ol gal- 'K^ficel that no laurels are to ^.^^^^''^^yl^^i sLk those laurels lant men, of men of honor and ot C-^nst an • » ^^ ,.j^^^^ ^^ ^t battle ather where they do -^^"''^^^^ S^^^^ "a t Lu the late Chief Magistrate oh- when it rages." Sir, I ^yas J", ?7^^^^^^ served to a friend, some time dunng ^^^^ J^J^^ \ ° ^^^„ ,„d money, he had no IZ in a just cause, if Congress wulc^gvoh^^ ^^^^^ ^^^ objection to going into a wai ^ut h> •„ , ^ Alexander Mc- S" rr a;;:^^-hni;lnci:n^aon of the Uind, brave, and ^ust old awaiting trial in the courts " '^^^^^ ^^^^.^^^ adm^it your proposition to the demand of Her Majesty '^ mm stei ta ^^^^^^^ ^^^^^^^^ ^^^^ of international law ; we are not ^"^l^; ° ^" ^^^ Uie fanuliesof the earth to- as not to know the elements o the coda 1^^^^ ^^^,, ,, fe crethcr. From this accusation ot mun cip ^^.^ ^^^^.^ ^ ^e^i S now will you in y°-i-.;^;,t\Te Mnrosty's fo?-ces,atthe dead hour invaintoknow) onwhatp ctinceuei J J^^^^^ .^^^^^^^ j , g^il ^^^Xpened, however, tj- -- -^^^^^^ ^^^^^i McLeod was awaiting his tn I !," ' ; ^^^^^^^ . .^j the distinguished Sena- New York prison, under ^^^^\ J^^y^/i^i, ^^usc, at least, the Government tor from Pennsylvania insists ^'^^ V^^ ^'^^^ ^ j the demand, but just have should have done "«tl^l^t•^l^v and c "it his law to New York VVe directed Mr. Fok to tell his sto y ^f^^'^^^.^^^ ,inciple ; we should not should have made no concessions o^ tho o J ^^^^^^ ^^ate the official e vi- have dared to communicate to tj^^ ^xe^^^^ ^^^ ^^j ,,, own opinion death, among themselves. ,, ^ ..^eat and admirable State un- Sir the position McLeod stood in toJ_l^^^^^^^^^ .^tion of the General doubtedly limited the rights and ^»f •\'^^;^:^ii' '^at we would, were we Governm^ent. But because we covdd n^t do all tb^ ^^ ^ ,^1 not to do the little ^^J%'f^. New York ? How ? By desiring to have we offended ? The State ot f^^'^^' ,, i,,ge and so precious secure to this prisoner, to whose ^^ \"^Xve it. New York was pro { were attached, a fair trial ? ^f^' l^'^^'^^^^^ ^f the administration of cr.mi- ceeding against him in tl- ord - ,°^^ ,' him, which in /l-^^P^^^^^ nal law. To recognise ^^^ J^n ^k ^^^, ^.^ ^^^^ ^^,^^^ New --- S^!,^^r ^f tt^:' soc^l privileges-a f.ir trial : was there X orii. wisut" !'^> -' — J 14 in this any thing to alTront her pride of character ? any thing to ruffle a feather in the phune of her acknowledged prerogative But we souglit to opei ate on the Government of that State by commu- nicating our opinion on the points of international law, and in effect ad- V 3inl U what course to pursue. Well, sir, does the conveyance of advice ImpU" disrespect towards the object of it, or a distrust of h.s integrity or his capacity ? Does it prove any thing more than that you ee a deep solicitude that, in a great crisis of his fortunes and yours, he sl.a 1 or his sake and yours, make no mistake ? Sir, here was a State with he phjs.- cal power of engaging you in a national war. If hostilities followed the execution of Mcleod^ it would not have been a war on New York alone but on Louisiana, on South Carolinu, on Maryland, on Massachusetts. If they should be more immediately aimed at her, your valor and your treasure must have united with hers, for her defence. A State, then, might plunge you in a general war; and yet, under the Cons itu tion, no St.te hastl^ legal and direct right to make a war for you or for herself. She has no right to terminate it, by treaty, alter it has begun. 1 hat great prerogative is yours alone. Those transcendent imperial powers, by which and through which we are known to the nations, are your pov;ers. And now is it possible that a Stale, prohibited by the Constitution from making war, from making treaties, may consummate an act for which we must a^nswer with our best blood, on the field and on the deck ; and ye that this Government, clothed by the Constitution wMth all these great trusts, charged with the conservation of peace, with the conduct, expen- ditures, and hazards of war-this Government, whose flag alone it is that ^vaves over the universal American family, wheresoever a member ol it wanders, on )and or sea-that we cannot respectfully approach any ^ ate with the communication of advisory suggestion, and deliberate with her on a subject of great novelty, difficulty, and importance ? I have no great opinion of such transcendentalism of delicacy as this-good for winning electoral votes, possibly, but unfitting a man or a Government for manl> and useful action. Sir, New York is ably represented here, by gentle- men of both political parties, and they can answer for her; but 1 be leNe she will lauiih to scorn the suggestion we hear of out of doors, that any disrespect h^as been shown or felt for her Government or her people {or her judicial learning, or for the temper, feelings, and views ot any portion of her widespread community. . ,. . . , r *u:c Pnv In iudgin- on this part of the subject, in this inquiry how far this Gov- ernment ha.^^ exceeded its powers, invaded State rights, or betrayed indec- orous anxiety and haste to save this person from the gallows, I ask you to take one thing into your consideration^ Sir, it is no answer at all to Eng- land to say this is the affair of New York. She knows nothing even of that magnificent Empire State as a separate State. We do not allow her to know any thing of any State by our Federal Constitution »" that capa- cilv. We do not allow her to have diplomatic access to any. 1 o attempt to make a treaty with any would be clear ground of war. VVe inform her th^.t, hv our Federal Constitution, the foreign relations of New York are reposited here ; and if she has any cause of complaint against her, she will please to leave her card at our door. England of course all the nations, must hold us to this; and if any State affords her ground of war it is against us that we ourselves direct her to turn her steel. At the same time, therefore, that our Federal relations to New York hindered I. 15 „s from doing much, our obligation on the \-vs of nations to ^^^^If^^o do every thing was not in the least degree essened b> hem. ^^e clear " •'., , ^^ ,-„t thprpfnrp \v«s to do what it did , to appiize '"^MrTresWont, I l.avc one dut, more .0 perform, not so much to the SerrL;:fo;s,ateas.on,o^^^^^^^^^^^ have SMd tha ,t «^s tl e busnie s o ^^^^^ McLeod, to demand ESn; S"fdra':d"'4t upon .y ^^^f -'-trin'r Seme".; „,:i do he ^'^c'-el" y o ^,'"'"i, ae'voled to the peiformance of what he part of '^'^l^X^VtliUobth^s most agiieable duty. They will but degrade the seat vvh.ch ho M n h.s h S P e by p b ^ ^, ,^^_^ ^^^^^ any man, even of ""v,f''''ilUvth.t the ability and spirit with which he no apology at all. Yf^' "" ^-X'/^/e among the ablest diplomatic irafpra^ hts-^ that England h., no r,^^^ 'e" .i:h Er .Wll'teU us': 'ain'at t end of three more years, that he undo stood our claim for satisfaction had been w.thdrawn That this argument is ably conducted, you al admit. But 'he couise ^"th; Son.tor from Virginia [Mr. Rives] last evening read to as a por- series of patriotic service, to speak for himsell . 16 *• Under these circumstances, and under those immediately connected with the transaction itself it will be for Her Majesly'H Government to show upon what state of facts and what rules of na- tional law the destruction of the Caroline is to be defended. It will be for that Government to show a neccsuity ot self-dcfi-nce, instant, overwhelming, leaving no choice of moans and no mo- ment for dcliberition. It will le for it to t,! ow, also, thnt the local authorities of Canada, even supposing the necessity of the momiiit iiuthorized them to enter the territories of the United States at all, did nothing unreasonable or excessive ; since the act, justilicd by the necessity of self-de- fence, must be limited by that necessity, and kept clearly within it. ♦'It must be shown tbat admoiiiliou or remonstrance to the persons on board the 'Caroline* was impracticable, or would have been unavailing; it mnst be shown that day-light could not bo waited for; that there could be no attempt at discrimination between the innocent and the guilty ; that it would not have been enough to seize and detain the vessel; but that there was a necessity, present and inevitable, for attacking her in the darkness of the night, while moored to the shore, and while unarmed men were asleej) on board, killing some and wounding otliero, and then drawing her into the current, above the cataract, setting her on fire, and, careless to know whether there might not be in her the innocent with the guilty, or the living with the dead, committing her to a fate which fills'the imagination with horror. A necessity for all this, the Government of the United States cannot believe to have e.\iated." To these hands, for one, I am willing to entrust the rights and the fame of my country. Mr. President, I concur entirely with both the Senators who have pre- ceded me that there need be felt no apprehension of a war with England. Like them, I neither expect nor desire it. Heaven forbid ! I know of nothing between the Govcrnnjents that ought not to be and may not be easily and honorably composed. But whatever may befall, I claim it as the praise of this /\dministration, that it has had the manliness to seek peace by justice ; and thai, if war shall come, it has done all that man can do to enable us so to go into it that we may have the approval of our own consciences, self-respect, the moral judgments of the world, and, may I not add, the God of our fathers with us in the conflict. ' 1 >,"■ 'y