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had discovered some such doctrine as he needs in the 75th section of book 2d, chapter 6th, of Vattel. But the Senator from Virginia was entirely accurate in his observation upon this passage; that it plainly refers to the case of an individual acting without authority from his government, and to nothing else. And then, in support of the position of Rutherforth, I піау
remind you that, as the law of nations is holden now, no war requires to be preceded by a declaration. (Martens, 274; 2 Wheaton's Laws of Nations, 12; 1 Kent's Commentaries, 54, 2d edition.) Defensive war never required it, according to any theory. (Vattel, 317.) But it was defensive war to which McLeod's government assured him that he was summoned forth. The want of declaration, therefore, cannot affect him, unless we are guilty of the indecent and ludicrous barbarity of requiring him to judge better than his government on the necessity of resorting to a particular measure of armed resistance to a threatened invasion.
I submit, then, Sir, that McLeod is not responsible as for crime against the municipal law of New York or of this Union by participating in this act of English national wrong. Criminal in England, in him it was no crime. Let me add that if, in thoughtlessness or anger, we had stooped to shed his blood, it would have impressed a stain on the radiant flag of our pride and love which a hundred victories, aye, a hundred years of victory, would not wipe away.
The concession of the Secretary of State was right, then, in point of international law. But the Senator from Pennsylvania thinks le ought not to have made it, right or wrong. I submit, then, in the second place, that he ought to have made it, and the government to have acted on it, exactly as it was made and acted on.
What was the duty of the Secretary of State on the 12th of March last, when McLeod, guilty of no manner of crime against the law of New York by participation in the attack on The Caroline, had been indicted, imprisoned, and ordered for trial to be had on the 22d of March, as for such crime, under circumstances justifying a reasonable anxiety, lest he might fall a victim to a natural and a tremendous popular excitement; and when her Majesty's minister came forward, announced the doctrine of international law,—which we all know to be just,
and demanded that McLeod should be holden entitled to immunity under it? What was the Secretary 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 law; the American government is not advised exactly whether it may hang prisoners of war or not. Besides, it happens to have nothing at all to do with the matter; McLeod is in the hands of the State of New York, a great and patriotic State, Mr. Minister, giving forty odd electoral votes; she 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 non-committal, until he and you were startled by the thunder of an enemy's cannon,-a music I ac*knowledge at which a brave nation has no great objection at any moment to wake up? No, Sir, 1 submit on the contrary, that the duty of our government was perfectly clear ; to avow its acknowledgment of the doctrine of international law advanced by the minister; to declare its purpose to do what it constitutionally might to secure McLeod the benefit of it; to do it, and then, having removed this disastrous interlocutory controversy out of the way, to demand satisfaction at once of England for the burning of The Caroline, as that language is understood among nations 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 conceded 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, or 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 islandmistress 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 preserve peace, if it might be had with honor, and, if war must come, to secure us one in which a Christian people might draw its sword ? Now, Sir, the difficulty was, that, on the twelfth of March, we were in an eminently false position. With ample materials of the highest tone of complaint, perhaps even of reprisals or war against England, for her conduct 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 entirely in the wrong. With the burning of The Caroline, with the groundless yet pertinacious grasp of our territory in the north-east, with the repeated 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 her Majesty's minister to pull off his hat. Policy, honor, justice, honesty, humanity all required us to quit it in an instant. Why give England 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 think a holy war? Why alienate the sympathies of the world by such a thing? Why commit a blunder as well as a crime? Why forget that he is trebly-armed that has his quarrel just? Why shock and shame the pride of America by turning away from England to strike down McLeod ? Sir, if you speak of blows, I believe the people of this country would choose to be seen aiming full at the front of the proud and giant master, rather than dragging the servant, unarmed, unfriended, and handcuffed, to the gallows. They feel that no laurels are to be won in such a field by a nation of gallant men, of men of honor, and of Christians. They will seek those laurels rather where they do naturally grow, far up. on the “perilous edge of battle when it rages.' Sir, I was just now told that the late Chief Magistrate observed to a friend, some time during that fleeting month of his administration, that in a just cause, if congress would give him men and money, he had no objection to going into a war with England;
but that he could not bring himself to buckle on his armor and take the field against Alexander McLeod. I can appreciate the disinclination of the kind, brave, and just old man to such a service.
I repeat, then, Sir, that if, on the twelfth of March, McLeod had been awaiting trial in the courts of the United States, we ought to have replied to the demand of her Majesty's minister thus: We admit your proposition of international law; we are not quite so rude and recent among the nations as not to know the elements or the code that knits the families of the earth together. From this accusation of municipal offence your subject is safe.
And now will you in your turn inform us (for three years we have waited in vain to know), on what pretence her Majesty's forces, at the dead hour of night, crossed the inviolate line of our boundary, invaded our soil, dishonored our flag, wasted the property and shed the blood of American citizens ?
It happened, however, that at the time when this demand was made, McLeod was awaiting his trial in the courts of New York. He was in a New York prison, under New York process; and the distinguished Senator from Pennsylvania insists that for this cause, at least, the government should have done nothing, and said nothing to the demand, but just have directed Mr. Fox to tell his story and carry his law to New York. We should have made no concessions of the legal principle ; we should not have dared to communicate to the Executive of that State the official evidence of the claim and of the doctrine of England, and our own opinion of it; we should not have lifted a finger; we should have stood speechless, unconscious, innocent, and dignified, to see England, New York, and McLeod settle this little concern of national law, peace, war, life, and death among themselves.
Sir, the position McLeod stood in to that great and admirable State, undoubtedly limited the rights, and embarrassed the action of the General Government. But, because we could not do all that we would, were we not to do the little that we could ? Were we to do nothing? Whom have we offended ? The State of New York? How? By desiring to secure to this prisoner, to whose fate interests so large and so precious were attached, a fair trial ? Sir, I cannot believe it. New
York was proceeding against him in the ordinary course of the administration of criminal law. To recognize her jurisdiction over him, which in the amplest manner this government did, and then to wish for him just what New York wished for him, that first of social privileges, a fair trial; was there in this anything to affront her pride of character ? Anything to ruffle a feather in the plume of her acknowledged prerogative?
But we sought to operate on the government of that State by communicating our opinion on the points of international law, and in effect advising it what course to pursue. Well, Sir, does the conveyance of advice imply disrespect towards the object of it, or a distrust of his integrity or his capacity ? Does it prove anything more than that you feel a deep solicitude that, in a great crisis of his fortunes and yours, he shall, for his sake and yours, make no mistake ? Sir, here was a State with the physical 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 Carolina, 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 Constitution, no State has the legal and direct right to make a war for you or for herself. She has no right to terminate it by treaty, after it has begun. That great prerogative is yours alone. Those transcendent imperial powers, by which and through which we are known to the nations, are your powers. And now, is it possible that a State, prohibited by the Constitution from making war, from making treaties, may consummate an act for which we must answer with our best blood, on the field and on the deck; and yet that this government, clothed by the Constitution with all these great trusts, charged with the conservation of peace, with the conduct, expenditures, and hazards of war, - this government, whose flag alone it is that waves over the universal American family, wheresoever a member of it wanders, on land or sea — that we cannot respectfully approach any State with the communications of advisory suggestion, and deliberate with her - on a subject of great novelty, difficulty, and importance ? I have no