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power in this proposition is meant any thing which shall cause the proposition to be at all a pertinent one. Nothing can be more preposterous than to deny that colonial authorities may take hostile measures for the defence of their soil, and of their sovereign's right in it, and that this action of theirs will clothe the armed men whom they employ, with the immunities, whatever these may be, of soldiers in public war. No publicist, of credit, has ever ventured any thing like such a denial. Judge Cowen refers, for his doctrine, to Rutherforth (Vol. II. pp. 496-8). But Rutherforth, though perhaps he does not express himself with entire clearness or consistency, is evidently treating no such case as that of the powers of the military authority of a colony threatened with invasion; and when, in this passage, he says, "A war, though it begins from a person who is a magistrate, will not be a public war, unless it begins from him as a magistrate, that is, unless he is authorized by the society to make war, he leaves all to depend on the very question of fact which is the only one that can be at issue in this part of the case; viz. Are the colonial authorities to be considered as so charged with the safety of the colony, as to be competent to take hostile measures in their sovereign's behalf, for its defence? And Rutherforth immediately adds (p. 502), in a passage which Judge Cowen appears to have overlooked; "An inferior magistrate may use what force he has at hand to repel such an immediate danger, as will not allow him time to have recourse to the supreme executive body." Again, Judge Cowen quotes Ward ("Foundation and History of the Law of Nations," Vol. I. p. 294), as saying, that no private hostilities, however general, or however just, will constitute what is called a legitimate and public state of But Ward here means by private hostilities, as any one may see who will turn to the passage, hostilities carried on by individuals possessing no public character, and authorized by no public commission ;" and the same is the intention of Blackstone in the passage ("Commentaries," Book I. chap. vii. § 3) to which Judge Cowen merely refers; he is treating the case of "unauthorized volunteers in violence," by whose hostilities, he says, "the state ought not to be affected, unless that should justify their proceedings." Once more; Judge Cowen cites a dictum of Lord Ellenborough; (Blackburne vs. Thompson, East's "Reports," XV.
90.) "I agree, that it belongs to the government of the country to determine in what relation of peace or war any other country stands towards it, and that it would be unsafe for courts of justice to take upon them without that authority to decide. upon those relations. But, when the Crown has decided upon the relation of peace or war, in which another country stands to this, there is an end of the question." Judge Cowen italicizes the last words, denoting their meaning to be, that there can be no other end to the question. He perhaps did not observe that Lord Ellenborough goes on; "And, in the absence of any express promulgation of the will of the sovereign in that respect, it may be collected from other acts of the state." Indeed, in the report of the same case in Campbell, (Vol. III. p. 66,) his Lordship is represented to have said, "the most potent evidence upon such a subject is the declaration of the state," establishing the inference that there may be other evidence.
Proceeding from the concession of counsel "that the Canadian provincial authorities had no inherent power to institute a public war," Judge Cowen says;
"We were, however, referred to Burlamaqui, Part 4, ch. 3, §§ 18, 19, to show that those authorities might do so on the presumption that their sovereign would approve the step, and that such approbation would reflect back and render the war lawful from the beginning."
The language of Burlamaqui is as follows;
"A mere presumption of the will of the sovereign would not even be sufficient to excuse a governor, or any other officer, who should undertake a war, except in a case of necessity, without either a general or particular order. ..... Certainly sovereigns will never consent that their ministers should, whenever they think proper, undertake without their orders, a thing of such importance as an offensive war, which is, the proper subject of the present inquiry. In these circumstances, whatever part the sovereign would have thought proper to act, if he had been consulted, and whatever success the war undertaken without his orders may have had, it is left to the sovereign to determine whether he will ratify, or condemn, the action of his minister. If he ratifies it, this approbation renders the war solemn, by reflecting back, as it were, an authority upon it, so that it obliges the whole Commonwealth."
Nothing, it would seem, could be more unquestionable than this doctrine, or more directly applicable to the present
case. Judge Cowen, however, proposes to regard it as inapplicable, simply because England, in the guarded civility of diplomatic correspondence, has refrained from giving to the assault upon the Caroline the very plain-spoken title of an act of public war. "Neither the provincial authorities nor the sovereign power of either country," he says, "have, to this day, characterized the transaction as a public war, actual or constructive." Perhaps they have not, and perhaps they will not, at least till they have gone further in losing their temper and their manners. But, diplomacy apart, Mr. Fox's periphrastic expression, "a transaction of a public character, planned and executed by persons duly empowered by her Majesty's colonial authority to take any steps and do any acts which might be necessary for the defence of her Majesty's territories and for the protection of her Majesty's subjects,' is one, we take it, not so very far from being synonymous with "public war," or any other equivalent shorter phrase which Judge Cowen might prefer. "Again," says the Judge, if this view of the transaction [that is, as a lawful act of magistracy'] can be sustained, it was lawful ab initio. It required no royal recognition to render it national." Of course not. It is not the nature of recognition to render a thing one thing or another, but simply to explain and determine what it was and is. Avowal, in a case like the present, does not invest the subordinate with any new power, but it ascertains the point, that with such and such a power he had already been invested. As to the assailants of the Caroline, we of this country could not tell at first whether they acted on their own behalf, or on that of England. Had it turned out that they acted on their own, we should have been entitled to punish them ourselves, if in our hands, or to demand their punishment at the hands of England. England, who certainly has a right to know, says that they did it in her behalf and by her authority. All that remains then is, that she will justify it to our satisfaction, or expose herself to our displeasure and its consequences.
But we must do Judge Cowen the justice to say, that though his so explicitly asserted doctrine forbids colonial authorities, without express antecedent warrant from their sovereign, to protect their soil by warlike operations, he forthwith virtually rejects that doctrine. He speaks of a "power which the Canadian authorities held from England
to act in her place and stead," and says, "So long as they confined themselves within the territorial line of Canada, they were doing no more than the nature of their connexion with England required, sustaining that absolute and exclusive jurisdiction to which she is entitled with every other nation." So then, the rule is not precisely what it was just now. Just now, to justify any hostilities whatever on the part of colonial authorities, the actual concurrence" of the sovereign at home was necessary. Now it is not necessary to justify hostilities within the colonial border, but only those exterior to it. The Judge is arguing here the question, what colonial authorities may do without the express direction of the government, and he now says, that they may not cross their border in any operations pretended to be for its defence. If they do, they divest themselves of the immunities of public war. This doctrine is a wide enough departure, to be sure, from what had before been so elaborately maintained; still it makes an intelligible distinction, as it appears designed to make a grave one, between the lawfulness of foreign hostilities waged by the sovereign, or by colonial, authority. But the confusion of ideas is rendered complete, when, in the very next sentence it is said; "Whether they had power, without pretence of being engaged in a war with the United States, or could derive power from England, to fit out an expedition, cross the line, and seize or destroy the property and persons of our citizens in this country, and whether any one acting such an assumption of power can be protected, is quite a different question." And so, after all, the question is not about the power of colonial authorities to conduct, 1. hostilities of any kind, or, 2. hostilities beyond their own border; but, about the power of England to command any of her subjects to enter in arms a neutral country.
This is nothing more nor less than the old question, unembarrassed with any foreign incidents whatever, What circumstances those are which will justify a breach of the well-established rule that a nation's soil, like a man's house, is its castle. Neutral territory is in theory inviolable; no doubt of it; and so are many other things which, notwithstanding, are in fact violated, and for the violation of which the violator is held justified by the emergency of the case. I have no right to roil my neighbour's fish-pond; but if my child has fallen into it, I shall take the risk of the trespass,
and expect to be excused. I have no right to tread down his standing corn; but this consideration will hardly keep me quiet, if I see some one, whom he cannot control, pointing a blunderbuss at me from his side of the fence. The inviolability of territory is a law; but self-defence, and this extending to aggressive operations, if the necessity of the case requires them, is the supreme law, to which every other does and must yield. It is a law, no doubt, subject to be referred to in erroneous applications, to justify what cannot be justified by it; but its reasonableness as a law, and its cogency when fitly applied, no sane man will call in question. All that, in such an event, the government of the invaded country can say to the invader is, You have not made out that case of extreme danger to yourselves, which alone can justify a step so extraordinary. The mischief apprehended by you was not intolerable; or it was not imminent; or you might have been protected against it by our own action; or your action transcended the limits which the existing emergency covered. If none of these pleas can be maintained, all that it can do is to sit down content, and guard itself for the future by such precautions as it may, against the recurrence of occasion for a step so justifiable in the other party, but still to itself so unpleasant. Our own government stood on the correctness of this statement, in its justification of itself to the Spanish government for the invasion of Florida by General Jackson, in 1817. In the following paragraph, Judge Cowen remembers only the rule, and forgets the exception. What is more to the purpose, he waves all distinction between colonial and national hostilities.
"All rightful power to harm the person or property of any one, dropped from the hands of McLeod and his associates the moment they entered a country with which their sovereign was at peace. No exception can be made consistently with national safety. Make it in favor of subordinate civil authorities of a neighbouring state, and your territory is open to its constables; in favor of their military, you let in its soldiery; in favor of its sovereign, and you are a slave. Allow him to talk of the acts and machinations of our citizens, and send over his soldiers on the principle of protection, to burn the property or take the lives of the supposed offenders, and you give up to the midnight assault of exasperated strangers, the dwelling and life of every inhabitant on the frontier, whom they may suspect of a disposition to aid their enemies. Never, since the treaty of 1783, had