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of Schlosser, though by no means the only disturbing cause, is enough alone to threaten plenty of trouble. On the 29th day of December, 1837, Navy Island, on the river Niagara and within the British border, being occupied by a party of Canadian rebels and a rout of American dom,” their allies, an American steam-boat passed over to it with a reinforcement of men, provisions, and munitions
That night, as she lay made fast to a wharf in the village of Schlosser, full of people asleep, perhaps prepared for a similar expedition the next day, she was attacked by an armed party in boats from the Canada side.
They boarded her, drove out her passengers and crew, threw off her fasts, towed her into the stream, and sent her blazing down Niagara Falls. One man, Amos Durfee, was killed on the shore. Whether others came to their death in the boat, by sword, fire, or drowning, has not been ascertained, the adventurers being little known to each other, and being generally of a class of people whose whereabout is not easily traced.
The " transaction,” as Mr. Fox daintily calls it, occasioned, not unnaturally, a strong feeling of resentment in this country. Armed irruptions into a neutral territory are never kindly taken by the invaded party. When attended with the destruction of property, and the death of men, they do not fail to create extreme dissatisfaction. A nation is tenderly jealous of the sanctity of its soil. The peaceable citizen is thoughtful for the security of his fireside. Mr. Van Buren, then President, applied to the British Government through the Minister at London for explanation and redress. The British government said nothing to the purpose, waiting to be further pressed. By and by, one Alexander McLeod came over to the American side, and boasted, truly or falsely, that he belonged to the boarding party, and with his own hand had put one of the Caroline's people to death. He was apprehended and examined; the Grand Jury of the County of Niagara found a true bill against him for the murder of Durfee, and he was put in prison to await his trial.
As things grew serious for McLeod, they melted the diplomatic reserve of England. A British subject was in peril of his life under a foreign jurisdiction, for doing (so it was said) a subject's duty; and the practised mane of the British lion could not choose but bristle. The minister of that power
at Washington, Mr. Fox, demanded McLeod's release. The American Secretary of State, Mr. Forsyth, replied, that he was in the hands of justice in New York, and must await his deliverance in the regular course. Mr. Fox reported this answer to his government, and in reply was directed by Lord Palmerston 10 assume the attack upon the Caroline as an act done by the authority of the British government ; — an act, therefore, for which that government was responsible, -responsible to any foreign power, which might consider itself aggrieved, and bound to its own subjects to secure to them impunity for whatever agency they had had in it. And on this ground, he, in the name of his government, repeated the demand for McLeod's immediate discharge.
Thus the business assumed a new phase. Mr. Webster, who had become Secretary of State, replied ; Now you let us understand you. You tell us, what you have not told be. fore, that you hold yourselves answerable as a nation for this intolerable wrong, and that, this being so, we ought to put out of the question McLeod and his associates, who were bound on their allegiance to be your instruments, at your discretion, in any act of war. We assent to the principle, and will act in good faith upon it. But as yours and ours are governments of law, we do not understand you to demand of us to compass what we both desire, by any illegal step. In Great Britain and the United States of America, whoever is in the custody of law, must by process of law be delivered. If the matter of McLeod were in a Federal court, the President would release him by directing the prosecuting officer to enter a nolle prosequi. As it is, we must proceed differently ; and should he not be discharged by the inferior tribunals, we will take care to have his case carried up to the Supreme Court of the United States, to whose especial prerogative it belongs to take cognizance of legal questions involved in the foreign relations of the country.
This correspondence, communicated to Congress early in the extra session, in June last, led to a vehement debate in both Houses. When is an individual, engaged in hostile acts against one country or its citizens under the authority of another, clothed with the immunities which attach to a prisoner of war? If he enters foreign lines as a spy, or robs a mail to get at a government despatch, he cannot throw the responsibility on his superiors, and plead their commands in his defence ; what acts can he do, and have that defence avail him? What war is that which will be a legal justification of acts done in its prosecution ; and was the affair of the Caroline, with its concomitants, actually a war in the contemplation of this principle ? If a nation avows an injurious act of its citizen, and we determine to hold it accountable in the way of national redress, are we thereby precluded from visiting the individual also with the penalties of municipal administration ? These are some of the questions which were argued. Some exciting topics naturally came in to extend the range of debate. A piquancy was given to it by an expression in the British minister's letter, construed into a threat of consequences to follow a neglect of his demand ; and one Senator, from a rather turbulent region, professed himself disposed to hang McLeod, if it were for no other reason than ihat the British had threatened us with what they would do in that event.
In the July term, McLeod was brought up before the Supreme Court of the State of New York, under a writ of habeas corpus. Availing themselves of a provision of the recent Revised Statutes of that State, his counsel put in his affidavit to the effect, 1. “ That he was absent, and did not at all participate in the alleged offence ;” 2. “ That, if present and acting, it was in the necessary defence or protection of his country against a treasonable insurrection, of which Durfee was acting in aid at the time.”
After a full hearing, the writ was dismissed. The opinion of the court was delivered by Mr. Justice Cowen. "The Judge, in the first place, produces the authorities to show, that by the Common Law, McLeod, being under indictment for a felony, could not claim even to be admitted to bail on such grounds as those on which he had claimed a final discharge. Then he considers whether the statutes of New York have, in this respect, enlarged the powers of the court, and concludes, that when, on a writ of habeas corpus, they allow the allegation of any fact “to show that imprisonment or detention is unlawful,” they refer to facts touching the lawfulness of the authority for imprisonment or detention, and not to facts touching the guilt or innocence of the prisoner, these being only cognizable by a jury. Next, he inquires whether it is the duty of the court to direct the entry of a nolle prosequi, the concurrence of the court with the prosecuting officer being required for this by the laws of New York; and he answers the question in the negative, for the reason that the statute gives the court no power of directing this entry, but only of consenting 10 it when proposed by the public prosecutor.
The shell broken, the Judge addresses himself to the kernel, in a consideration of the argument of counsel, denying jurisdiction on the ground that the case “ belongs exclusively to the forum of nations, by which counsel mean the diplomatic power of the United States and England, or, in the event of their disagreement, the battle field.” We need not follow him in the distinctions, which he here labors at length, between solemn and unsolemn war, since, as he rightly concludes, by the modern law of nations, “both sorts of war are lawful, being carried on under the authority of a power, having, by the law of nations, a right to institute them.' But, he says, “to warrant the destruction of property, or the taking of life, on the ground of public war, it must be what is called lawful war, by the Law of Nations, a thing which can never exist without the actual concurrence of the war-making power. This, on the part of the United States, is Congress ; on the part of England, the Queen.”
Without the actual concurrence of the Congress of the United States, or the Queen of England, no hostile act can be lawfully done by a portion of the American or the British people ; — if by the phrase actual concurrence, in this proposition, is not meant that which it seems to mean, the proposition is a very sound and unassailable truism ; if otherwise, it is a very bold absurdity. It would be worth while to assist at General Gaines's reception at his first visit to the Presidential mansion, if a party of Indians should come to beat up his head-quarters at Memphis, and he should stack his arms, and take steam-boat to report at Washington that he had no intimation of the actual concurrence of Congress in his adopting measures of defence. The concurrence of the sovereign is necessary, without doubt, to constitute a lawful war, but it is a concurrence, which, in a variety of circumstances, must be presumed. It is to be presumed that the Queen of England, and the Congress of the United States, mean that their frontier shall be defended whenever it is threatened, and the officers and soldiers who defend it may very safely rely on their actual concurrence in
the defence, and would be very imprudent to entertain any doubt about the matter. According as Judge Cowen's words here are construed, bis doctrine is altogether immaterial to the purpose in hand, or else it is not only not true, but admits of, or rather is, a reductio ad absurdum. If the actual concurrence of the sovereign in necessary
hostilities for the defence of his territory, (this doctrine, of course, is independent of the question what hostile measures of defence may in any case be necessary,) if this is not to be understood as expressed in a general commission, or presumable from the object of self-protection, incident to the organization of civil communities, there is small safety for the subject except as he seeks it close by the capital ; — there is nothing to prevent our company on the Aroostook from installing itself next week in Quebec; the garrison at Quebec will point a cannon against them at its peril. And as this is common sense, so it is good, old-fashioned law. Says Vaitel ;
Every military officer, from the ensign to the general, enjoys the rights and authority assigned him by the sovereign; and the will of the sovereign in this respect is known either by his express declarations, contained either in the commissions he confers, or in the military code, or is, by fair deduction, inferred from the nature of the functions assigned to each officer ; for every man who is intrusted with an employment is presumed to be invested with all the powers necessary to enable him to fill his station with propriety, and successfully discharge the several functions of his office. . .
These particulars merit the utmost attention, as they furnish a principle for determining what the several commanders, who are the subordinate or inferior powers in war, may execute with sufficient authority. Exclusive of the consequences which may be deduced from the very nature of their employments, we are likewise to consider the general practice and established usage in this respect. If it be a known fact, that, in the service of a particular nation, officers of a certain rank have been uniformly invested with such or such powers, it may reasonably be presumed that the person we are engaged with, is furnished with the same powers. Book it. Chap. ii. $ 19.
" It was conceded in argument,” however, says Judge Cowen, “that the Canadian provincial authorities had no inherent power to institute a public war." Then something utterly absurd was conceded, if by public war and inherent VOL. LIII.