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England, in time of peace with us, any more right to attack an enemy at Schlosser, than would the French have at London in time of peace with England."

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This last statement is precisely correct. If an attack of the French upon London would not, under similar circumstances, be justifiable, then cannot the Canadian attack upon Schlosser be justified. The question simply is as to the exigency of the dispensing circumstances. Judge Cowen, though he had just now ruled that the law knows no exception, proceeds presently to allow that some exception must be made, and accordingly goes on to inquire whether the attack upon the Caroline was made under such circumstances as entitled it to the plea, in itself relevant and sufficient, - of necessary self-defence. If what he had before said was well-founded, it was needless to ask this question as to the lawfulness of that movement; de re actum esset; but he does ask it, and concludes that the circumstances were not such as to afford that justification. The Secretary of State had so concluded before him, and in our judgment both concluded rightly. But in their ulterior conclusions they differ. England, says the Secretary, has by her colonial authorities done us a wrong, and must answer for it. England, says the Judge, has does us a wrong and must answer to our sovereignty in negotiation or war; McLeod also has done us a wrong, and must answer to our courts in the issue of an indictment and trial. And as to the practical application of the doctrine of individual irresponsibility under the given circumstances, Mr. Webster further says, The doctrine being sound, McLeod ought to have the benefit of it before trial, and be forthwith discharged. Judge Cowen says, The doctrine being unsound, McLeod ought not to have the benefit of it either before or on trial, but (the facts being proved) he should be convicted. We humbly conceive that neither ground can be defended. As we view the matter, the doctrine is sound, and McLeod, things having gone on as they have, ought to be put upon trial, and then to have the benefit of it, if the facts permit. The supposed facts being proved, it will be a good defence to a jury, and after conviction (should that take place) it will be a valid ground of further proceedings to stay judgment.

As to the soundness of the doctrine, all the writers agree to what common sense itself dictates, that, civil government being instituted for the common security, one of the obligations of a citizen is to do military service at the command of

his lawful governors. The government has a right to command that service, and to proceed to any length of compulsion or punishment in order to enforce it. This being so, the government is bound to save the citizen harmless for what he does in this way, under its dictation. It is not right that he should be liable to be hung, if he disobeys, by his own government; if he obeys, by the government of a foreign nation. In other ages a different practice has prevailed, and still does among barbarians. But this is the approved doctrine of modern times, and by civilized communities the person of a prisoner of war is now held to be inviolable.

The answer of Judge Cowen and some of the debaters in Congress to this, is two-fold. One part of it consists in adducing cases where the command of a government does not justify the citizen; the other, in an erroneous interpretation of a few passages from the publicists, chiefly one from Vattel. They say, the command of a government to its subject will not justify him to other governments for every thing that he may do. It will not justify him for entering foreign lines as a spy or a recruiting-officer, nor for robbing a mail, nor for poisoning wells, nor for private assassination.

Certainly it will not; the understanding among nations is, that it shall not; and, accordingly, such cases do nothing to illustrate the question in hand, being what the logicians call impossible suppositions. A government will not and does not command its subject to become a spy, or a mail-robber, or a private assassin, for the very reason that it knows its command will be no protection, if he obeys. The policy of nations has determined that it is not expedient to allow individual impunity to certain acts, even though they should be done under public direction, and accordingly the public abstains from directing them. The policy of nations, on the contrary, has agreed with the dictate of humanity in according individual impunity to public military operations, carried on under the authority of governments; and accordingly governments, as they see occasion, direct such operations without scruple, and the citizen, with as little scruple as to what his duty is, takes his own prescribed part in them. War, solemn and unsolemn, may lawfully be carried on by a government for sufficient reason; and, when it is carried on, the soldier engaged in it cannot lawfully be punished for doing any of the acts properly incident to its prosecution. Of

the sufficiency of the reason for waging war in either form, the government waging it is the only judge, and the soldier is not responsible for the correctness of the judgment. A government, when it can make out an extreme case of necessary self-defence, may lawfully send troops into a neutral country. When it determines to do so, the soldier whose agency it commands is bound to presume that it is proceeding rightfully, just as much as in any other case of hostile movement; at any rate, the right or wrong is not for him to determine in this case, more than in any other. And if he obeys orders, and does a soldier's part, (not a spy's, or robber's, or assassin's, these he is not bound to do, while a soldier's he is,) then he is personally to be held harmless, if taken. And that is the whole plain common-sense philosophy of the matter.

So clear is the general doctrine, that the doing of a soldier's duty is not imputable as a felony, that it would be quite superfluous to collect authorities in its support. Let one or two suffice. Says Rutherforth;

"The members of a civil society are obliged, in general, and those members that have engaged themselves in the military service of it, are obliged in particular, to take up arms and to fight for it at the command of the constitutional governors, in the defence and support of its rights against its enemies from without. . . In consequence of the general consent of mankind to consider nations as collective persons, whatsoever is done by the members of a nation at the command of the public, or of the constitutional governors who speak the sense of the public, is the act of the nation, and, if the act is unjust, the guilt in the view of the law of nations is chargeable upon the nation, and not upon the individual members. When all mankind have agreed to consider the several members of a civil society only as parts of a collective person, that act under the direction of the common will of such collective person, however inexcusable a man who fights against them might be in the view of his own conscience, or of the law of nature, which considers him as an individual, they cannot consistently with this agreement, that is, they cannot consistently with the law of nations, charge him with having been guilty of a personal crime, merely upon account of his having fought against them."- Book 11. Chap. ix. § 15. (Vol. II. pp. 545-547.)

Again ;

"By giving the name of public war to reprisals or other acts 54 NO. 113.


of hostility which fall short of being solemn wars, I suppose the reprisals to be made, or the acts of hostility to be committed, by the authority of a nation, though it has not solemnly declared war. For if the members of the nation make reprisals, or commit acts of hostility, without being thus authorized, they are not under the protection of the law of nations. - Ibid. p. 548. Again;

"In the less solemn kinds of war, what the members do, who act under the particular direction and authority of their nation, is, by the law of nations, no personal crime in them; they cannot therefore be punished consistently with this law for any act, in which it considers them only as the instruments, and the nation as the agent. - Ibid. § 18. (Vol. 11. p.


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But, say the opponents, Vattel lays down a different doctrine; and to show this they refer to the sixth chapter of his second book. The whole passage is as follows;

"§ 73. As it is impossible for the best regulated state, or for the most vigilant and absolute sovereign, to model at his pleasure all the actions of his subjects, and to confine them on every occasion to the most exact obedience, it would be unjust to impute to the nation or the sovereign every fault committed by the citizens. We ought not then to say in general, that we have received an injury from a nation, because we have received it from one of its members.

"S74. But if a nation, or its chief, approves and ratifies the act of the individual, it then becomes a public concern; and the injured party is to consider the nation as the real author of the injury, of which that citizen was perhaps only the instru


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§75. If the offended state has in her power the individual who has done the injury, she may without scruple bring him to justice, and punish him. If he has escaped, and returned to his own country, she ought to apply to his sovereign to have justice done in the case.

"76. And since the latter ought not to suffer his subjects to molest the subjects of other states, or to do them an injury, much less to give open audacious offence to foreign powers, he ought to compel the transgressor to make reparation for the damage or injury, if possible, or to inflict on him an exemplary punishment, or, finally, according to the nature and circumstances of the case, to deliver him up to the offended state, to be there brought to justice."

Now it seems to us to be clear beyond the shadow of a

doubt, that Vattel is here asserting, in the strongest and most express terms, the doctrine which we maintain to be the cor

rect one.

In the first of the paragraphs quoted above, he says, that one nation having received an injury from a citizen of another, may not absolutely conclude that other nation to be in fault; and this for the simple reason, that the nation to which the offender belongs may not have commanded or approved, but on the contrary may be ready to disavow and punish, its citizen's injurious act.

But, he says in the second paragraph, should the contrary prove to be the case, should the "nation or its chief approve or ratify the act of the individual, it then becomes a public concern." And the language which Vattel here uses would alone show his opinion to be the opposite of that for which his authority has been appealed to. The act, he says, "becomes a public concern," not a public and private concern both. And again; "The injured party is then to consider the nation as the real author of the injury of which the citizen was perhaps only the instrument." There can be no meaning in these words, except to define who is the real author of the injury, and accordingly the person who is to be held accountable, in distinction from him who is only the instru ment, and therefore to be suffered to go free. The second paragraph accordingly disposes of the case where, an individual having done a wrong, his "nation or its chief approves and ratifies." This is the predicament of the assailants of the Caroline, and Vattel's rule is that adopted by our gov



The third paragraph, by every reasonable principle of interpretation, requires to be construed as disposing of the remaining case under the general subject; viz. the case in which a nation or its chief" does not " approve and ratify." Then it is, and then only, that "the offended state "bring to justice and punish" the offender, if she has him in her power. That this is the meaning we hold to be altogether unquestionable, because to suppose the contrary is 1. to suppose that Vattel has passed over, without the slightest notice, one feature of the general question, as important as any; 2. it is to suppose that Vattel was capable of writing such nonsense as this; "If a nation or its chief approves and ratifies the act of the individual," and "the offended state

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