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a more picturesque arrangement of the spectacle of war. But the essential character, the legal name, the legal conse quences — national and personal — were the same. Sir, if one government trespasses on the rights of another by the employment of warlike instruments, it is, to the extent of the trespass, war on the injured nation.
But I advance to a second and far more important circumstance. The expedition in which he served was the act of a government competent to compel him to serve. Independent of or prior to any knowledge or approval of the act by the mother-country, it was so. I wholly reject the sugges, tion that this daring enterprise was at first an unauthorized proceeding of individuals, and that it subsequently became the act of a government by ratification. From beginning to end it was the work of a government, and of a government having the right to exact McLeod's obedience to the last drop of his blood. Who planned and conducted the attack ? The Colonial authorities. Such is, for substance, the explicit declaration of Mr. Fox. Such is the legal conclusion from the facts stated by Sir Francis Head in his despatch of the twentieth of January, 1838. Sir, the matter stands exactly thus : The Colonial authorities specially empowered Colonel McNab to defend her Majesty's territories, and to defend her Majesty's subjects. Such is the concurrent statement 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 implication, with the discretionary power of judging what measures were needful. In the exercise of that discretion, he judged this measure to be needful, and he adopted it. Now, for the protection 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 this 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 McLeod, and for the purposes of this question of individual immunity 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 subordinate relations to the imperial head, to set on foot an enterprise of war. But it is everywhere conceded that such a government may undertake defensive war. The mothercountry, by the act of establishing it, clothes it with the power, and imposes on it the duty of defending itself; and it clothes it also with the power of judging for itself, in the first instance, 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 unavoidable, and as effective for individual immunity as the obedience of a conscript or an impressed sea
Such was this case. 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 Upper 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 everything. It is all of majesty, of monarchy, of aristocracy 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 individual responsibility is, that bonâ fide obedience to his actual and lawful government on a requisition of warlike service shall never be reckoned a crime in any man.
You have before you, then, the case of a government commanding a subject who was bound to obey, to shoulder his musket for the defence of his country. It is true, the Senator from Pennsylvania tells us that McLeod was a volunteer. But he deduces no legal conclusion from the fact ; undoubtedly because he remembers that, by the admitted doctrine of international law, no distinction is recognized between volunteer and any other soldiers. He will remember that Vattel, at page 401, is a direct authority for this. In the reason of the case there can be no distinction. The regularly enlisted
soldier engages voluntarily at first for a longer term, and for all service; the volunteer engages for a shorter term, and for a special service. But both alike
forth to execute an authoritative public will, and both stand, therefore, on the same plane of immunity and hazard. Consider, Sir, what a great concern of all nations it is, — and of ours more than all others, — to hold a rule of international law on this subject that shall make their inhabitants willing and ready to leap to arms, at half a moment's warning, at the midnight cry of their country.
You have, then, I repeat, the case of a government commanding a subject to go forth to an enterprise of war. Why is he not, then, within the terms and spirit of the great principle of immunity which we all agree surrounds the soldier of a formal and public war ? What are the peculiarities that distinguish this particular service from the general trade of war? Why, Sir, they are said to be these: that it was a single act of hostility, not preceded nor followed by any other, not preceded by a declaration, and wholly unjust. This is all true, but for the objects of this inquiry it is wholly immaterial. Sir, publicists and the practice of nations recognize various modes, kinds, and degrees of hostility. War is not always general or “ perfect,” nor is it always preceded by a declaration. It sometimes begins and ends with one single crushing blow. Such was the attack on Copenhagen in 1801, and that in 1808. It may be limited to one single act of reprisals, by a single individual, under a license communicated to him alone. A foreign power
has seized his ship, and his own government gives him letters of marque to help himself to another. In point of fact, too, war often begins without any declaration at all, at home or abroad. The bolt outruns the flash. Modern history is full of such instances; but I spare you the rehearsal of them. Now, Sir, what I would say, is, that for the purposes of immunity to the soldier and sailor, all these modes, kinds, and degrees of war, come exactly to the same thing. They are all, and all alike, modes of governmental action, involving only governmental responsibility. In many things they certainly differ one from another. Some of them are more chivalrous, more magnanimous, more conformable with a strict and punctilious proceeding, and a technical law of war, than others.
Some of them afford less ground of complaint to the government assailed than others. But, for the purpose
of personal irresponsibility, they are all one and the same thing. 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 common soldier. And what an unavailing, uncertain, ensnaring thing it would prove for him, if his title to it depended on such shades of diversity as these! How 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 enterprise, 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 from his post when the storm of battle rages highest, he dies by the hands of his officers ; and he goes forth relying on the armed but manly justice of civilized war.
And so are all the authorities. The Senator from Virginia recited them so copiously to you last evening, that I shall spare you the repetition, and content myself with a reference or two. The Senator from Pennsylvania and the Secretary of State tell you that the attack on The Caroline was unjust. But look into Vattel, on pages 380 and 383, and Rutherforth, second 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 the 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 was only a single act of hostility, breaking out in a time of general peace, unannounced by any declaration. So it was. But Rutherforth expressly declares, that this does not withdraw it from the law of immunity. I read at large the passage from page 548 of his second volume, and commend it to the meditations of the Senator from Pennsylvania. “ This external lawfulness, in respect of the members
of a civil society, extends to public wars of the imperfect sort, to reprisals, or to other 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 universal civilized man. Against this authority there cannot be placed one solitary act of a Christian nation for the last five hundred years, nor one word of any writer who undertakes to record the existing systems of international law. What is the nation now on earth, or descended into the graves of empire — where is the modern Christian nation that has shed the blood of a prisoner because the war to which his government detached him was informal, insolemn, unannounced by a declaration, beginning and ending with one single act? Call up the nation, if such there is or has been, and let it answer to the outraged spirit of law ? Did Denmark claim the right to do such an atrocity — humbled and exasperated by the repeated bombardments of her capital did that ancient and gallant race ever dream of avenging the defeats of the castle by the triumphs of the gallows? Did Spain, the most formal, the most punctilious of governments, and adhering the most tenaciously to the slow and prescriptive solemnities and technicalities of the old fashions of war did Spain dream of it when, in 1804, England, in a time of peace, intercepted her treasure-ships returning from America, and captured or destroyed them
Nor can you find, as I have said, a word in any approved expounder of the actual law of nations, to oppose to the text of Rutherforth. Dicta of Grotius seem to conflict with it. But they only seem to conflict with it. Even these the Senator from Pennsylvania has not availed himself of, because he knows that Grotius, admirable for his genius, his studies, his most enlarged and excellent spirit, lived too early to witness the full development of his own grand principles and the accomplishment of his own philanthropic wishes. The existing law of nations has been slowly built up since his time, and to learn it we must have recourse to writers far his inferiors in capacity and learning, but fortunate in being able to record the ameliorated theory and practice of a better day than his. From no one of these can you cite anything in opposition to the authority I have relied on. The Senator from Pennsylvania thought he