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whole object of the enterprise had been accomplished, and committed an unnecessary and distinct and malicious murder on shore. I can only say to this that no such fact forms any part of the basis of the opinion of the Secretary. He had either never heard of it, or he disbelieved it, or he assumed that the courts of law, or the Attorney-General, would allow its proper influence to a discriminating circumstance so important.
If you turn to the fourth page of his letter, you may see that the murder for which he supposes McLeod 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 takes for true the express declaration of Mr. Fox,“ that the transaction, on account of which Mr. McLeod has been arrested and is to be 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, first, that the concession 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 this 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 everybody, 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 nations 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 virtue — to be obedient to his own government. They have agreed to regard him, as our Decatur, the elder Decatur, said of his children, as the property of his country. Whithersoever he goes, whatsoever he does, wheresoever 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 at all. His nation, the collective natural person, must answer it on the high places of the world, and to the whole extent of the undefinable responsibilities of war.
If, therefore, McLeod had been a member of one of those bodies of troops which, during the last war, occasionally passed our line of boundary, burning our dwellings and killing our people, and had been taken even at the time, and with the red hand, he could not have been declared guilty of a crime against any law of a State or of the Union.
Setting out from this admitted principle, the real question is, whether the special circumstances, under which McLeod's
goyernment sent him forth to this midnight work of strife and blood, withdraw him from the protection of the principle of individual immunity with which humanity and wisdom have relieved and adorned the law of nations ? What were those special circumstances ? Exactly these. He was a soldier or sailor, de facto, for the time, for the act, in a military and naval expedition of force, planned and sent abroad by his own legitimate government, having the right to exact his service to the last drop of his blood, -sent abroad not to plunder, but, as it represented to him when it called him out of his bed, and disclosed its purpose, to do an act for the defence of the country he lived in against invasion. This expedition was a single act
, not preceded nor followed by any other ; it was preceded by no declaration of war, and, as this government alleges, it was unjustifiable. Such were the circumstances ; and the question is, Do they withdraw him from the principle of personal responsibility ?
Let me say, then, first, that in proceeding to determine
whether that principle shall or shall not be applied to a given special case arising in the ever-varying developments of things, the inclination of civilized States will be, and ought to be, to take the principle largely and liberally in favor of individual immunity, and of exclusive national responsibility. Every motive which operated to introduce the principle into the law of nations at first is a motive to an enlarged and benignant construction and application of it to-day. Its adoption originally marked a vast advance on the ferocious systems of what we call natural society. It was a grand triumph of reason as well as of humanity. Policy and wisdom carried the world up to it, as well as right feeling. It was resorted to to relieve war of its horrors while it lasted ; to make it easier to go back to peace, which is the true condition of man; to ameliorate the stern lot of the millions whom, in one age and in one country and another, force or patriotism crowds into the ranks of their country; and to lift up war itself from a vulgar and dreary business of general butchery, to a service of glory, in which great souls may engage without degradation and without deterioration. These were the motives in which the principle was made part at first of the law of nations; and every one of them is a motive to give it the most expanded application in the light of this better day. Sir, it is one of the brightest glories of civilization. Do not cause it to be dimmed by a penurious and reluctant interpretation and application. To do so would be to misconceive the direction in which the world is moving. I do not know when wars shall wholly cease ; but I believe, I trust, that as the world comes nearer to that time, it will regard war more and more every day as an enormous evil, if a necessary evil, and will desire to relieve it more and more every day by the offices of Christian and of chivalrous forbearance towards individual actors, — struck down, unarmed, and unresisting.
Giving, then, to the law of personal immunity that enlarged effect which the time and the country demand, let us attend to the special circumstances, one by 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 first place, observe that the expedition on which he went out was an expedition of war. It was not an expedition
to rob the mail, or to rob 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 enterprise of war, undertaken under the iron responsibilities, surrounded by the iron rights of war. Its exact legal denomination is “ informal, insolemn hostility.” Let us call things by their right names, and hold England and hold ourselves up consistently to this view of the transaction. Look at it. There was a forcible 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 from without. What sort of act is that, Sir ? The mover is a government; the inducement à 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, beneath 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 publicists, is “informal hostility” against the United States; and the responsibility 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 invade 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, and to effect that purpose by military violence and by shedding innocent blood in battle. And this act is hostil
ity against us because our rights are outraged, — and they are outraged by the methods and the processes and according to the forms of war; and because every nation and every man must bé holden to intend the acts which he does and their necessary consequences. How do you distinguish this proceeding from the attack on Copenhagen in 1808, to which the Senator from Virginia alluded last evening ? What was that transaction ? England, cherishing no hostile feeling against Denmark, (for Denmark, like herself, was actually in arms against the Emperor of the French,) conceived a fear that that ancient, gallant, but not very powerful nation might fall before him ; in which case her sixteen ships-of-war would become his, - a formidable accession to the strength by which he was urging forward his aim of universal dominion. Thereupon she sent Admiral Gambier to Copenhagen, bombarded it, killed and wounded above a thousand persons, and carried off the whole Danish fleet. That is, she forcibly invades the Danish territory for the purpose of possessing herself of divers ships, of which, as against Denmark, she had no right to take possession, not for the purpose of weakening or insulting her, but to prevent their becoming, in other hands, the instruments of annoyance against herself. So here. She invades our territory with military force for the purpose of possessing herself of a vessel, of which, as against us, she had no right thus to take possession, - not to weaken or insult us, but to prevent its being, in other hands, the instrument of annoyance against herself. The cases are alike cases of informal war against the nation whose national rights are invaded. In the affair of Copenhagen, the object of the invasion was the capture of Danish government ships. If, instead of that, it had been Danish merchant ships, — lest their cargoes might go to fill the coffers of France, or to transport French munitions of war, would the act have been at all the less an act of hostility against Denmark ? Nay, if Denmark had been neutral, and the object had been to cut out a French ship which had fled to Copenhagen for shelter, it would still have been a hostile aggression against Denmark herself. The attack upon Copenhagen was upon a grander scale than that upon The Caroline, — more ships, more men, greater names,