too, so likely to produce the most serious consequences to society, until we justify our conduct on the ground of its absolute necessity. The possessor may, therefore, remain in the possession till proof is adduced to convince him that his possession is unjust. "As long as that remains undone," says Vattel, "he has a right to maintain himself in it, and even to recover it by force, if he has been despoiled of it. Consequently, it is not allowable to take up arms in order to obtain possession of a thing to which the claimant has but an uncertain or doubtful right. He is only justifiable in compelling the possessor, by force of arms, if necessary, to come to a discussion of the question, to accede to some reasonable mode of decision or accommodation, or, finally, to settle the point by articles of agreement upon an equitable footing." And where the title to the thing seized seems indisputable, to attempt to gain forcible possession against the actual occupant, without first resorting to the milder modes of adjustment, is equally as objectionable as it would be to declare war, under the same circumstances. Indeed, it may be regarded as even more objectionable, for the reason that such seizures are sometimes made by subordinate authorities, without consulting the war-making power of the state. (Vattel, Droit des Gens, liv. 2, ch. 18, § 337; Wheaton, Elem. Int. Law, pt. 4, ch. 1, §2;. De Cussy, Droit Maritime, liv. 2, ch. 37; Garden, De Diplomatie, liv. 6, § 2.)

§ 16. It is a well settled principle of international law, that reprisals, strictly speaking, affect the persons as well as the property of the subjects of the government against which they are granted; but, in modern times, they have been chiefly confined to goods. In executing the right of reprisal upon vessels, the persons of the commanders and crews are necessarily affected, although it is usual to release them immediately on bringing into port the vessel taken by way of reprisal. Nevertheless, the right of reprisal, extends also to all persons of the offending nation. Vattel very justly remarks that "as we may seize the things which belong to a nation in order to compel it to do us justice, we may equally, for the same reason, arrest some of its citizens and retain them till we receive full satisfaction. This is what the Greeks called Androlepsia." The practice of ancient times, in this, respect,

is not often followed by modern civilized nations, except by way of retaliation, or in the case of taking vessels on the high seas, in the manner already alluded to. It is proper to remark that while all subjects of the injuring government are liable to reprisals, whether they be native, naturalized, or domiciled, travelers and passing guests are, in general, excepted from such liability. (Vattel, Droit des Gens, liv. 2, ch. 18, § 351; Rutherforth, Institutes, b. 2, ch. 9. § 13; Phillimore on Int. Law, vol. 3, § 19; Grotius, de Jur. Bel. ac Pac., lib. 3, cap. 2, § 7; Bynkershoek, Quaest, Jur. Pub. lib., 1, cap. 24; Heffter, Droit, International, § 110; De Cussy, Droit, Maritime, liv. 1, tit. 2,§ 51; Wildman, Int. Law, vol. 1, p. 192; Le Louis, 2 Dod. Rep., p. 245.)

§ 17. But the seizure and punishment of the individuals offending, is an act not unusual on the part of the offended state. Where such persons are found within the jurisdiction of the state, and they are duly tried and condemned by the lawfully constituted tribunals of the country, the act is nothing more than the ordinary and legitimate exercise of the authority of sovereign and independent states. But such offenders are sometimes seized upon the high seas, or elsewhere beyond the jurisdiction of the offended nation, an exercise of force which is justifiable only in case of offenses most manifest and palpable, and where the government of the offender plainly refuses, or most unreasonably delays, to inflict punishment, to surrender the criminal, or to afford satisfaction. Such forcible seizure beyond the jurisdiction of the state, is an act, not of war, but in violation of pacific international rights, and is sometimes followed by war, although more usually by a demand for explanation and satisfaction. And such diplomatic discussion, if properly conducted, will generally lead to an arrangement both of the original offense and of the consequent forcible seizure. The act, however, is, in its character, hostile. (Ortolan, Diplomatie de la Mer, liv. 2, ch. 16; Vattel, Droit, des Gens, liv. 2, ch. 18, § 350; Rutherforth, Institutes, b. 2, ch. 9, § 13; Vide Ante, chapter vii.)

§ 18. In case the government of the offending individuals should assume the responsibility of their acts, the question arises, whether the seizing and holding of the individuals for punishment, under the municipal laws of a state, is justi

fied by the law of nations, or whether such a proceeding is to be regarded as a reprisal or forcible seizure, hostile in its nature, and which, without explanation or satisfaction, might justify retaliation or war. The question is one of the highest importance, as its determination may lead to the most serious results. There seems to have been, at one time, a difference of opinion on this subject in the United States, and a conflict of jurisdiction, as claimed by the federal authorities and state tribunals. All difficulties, however, where afterward removed by the act of congress passed August 29th, 1842, directing the discharge of any subjects or citizens of a foreign state, and domiciled therein, confined, or in custody for any act done or omitted under the authority of a foreign state or sovereignty, the validity or effect whereof depend upon the law of nations. (Webster, The Works of, vol. 6, pp. 247-270; Brightly, Digest of Laws of U. S., p. 302; Dunlop, Digest of Laws of U. S., p. 1014; U. S. Statutes at Large, vol. 5, p. 539.)

§ 19. The case which gave rise to this difficulty, and to the subsequent act of congress, was that of Alexander McLeod, who was indicted, in 1841, for the burning of the steamboat "Caroline," and the killing of one Amos Durfee, in effecting the capture of that steamboat within the jurisdiction of the state of New York, in December, 1837. The responsibility of McLeod's acts was assumed by the British government, as having been done by its authority and under its protection, McLeod having acted as an officer of that government, and under the orders of his superiors. This was one of the grounds on which the discharge of McLeod from custody was demanded. The case was argued at great length and with distinguished ability on both sides, and the decision, it was thought, would determine the question of peace or war between the United States and Great Britain. (The People v. McLeod, 25 Wendell Rep., p. 483; Webster, Dip. and Off. Papers, pp. 120-140; Webster, The Works of, vol. 6, pp. 247-270; Phillimore, Letter to Lord Ashburton, 1842, pp. 27, 183.)

§ 20. The supreme court of the state of New York held that a subject of a foreign state was liable to be proceeded against individually, and tried on an indictment in the crimi

nal courts for arson and murder, notwitnstanding the acts for which the indictment was made had been subsequently avowed by his government, and it, consequently, refused to discharge him from custody. The opinion of the court was delivered by Mr. Justice Cowen, and is of great length. So far as the question of national law is concerned, the opinion rests upon the proposition, that till war is declared by the war-making power, the officers or citizens of a foreign government, who enter our territory, are as completely obnoxious to punishment by our law as if they had been born and always resided in this country; that while two nations are at peace with each other, the acts of hostility by individuals must be regarded as private, and not public acts, and that the courts will hold the parties individually responsible, notwithstanding the avowal of such acts by their government. (The People v. McLeod, 25 Wendell Rep., pp. 483, et seq.; Annual Register, 1841, vol. 8, pp. 310, et seq.; Phillimore, On Int. Law, vol. 3, § 38.)

§ 21. Mr. Webster, the American secretary of state, in his correspondence with Mr. Fox, the British minister, said that "The government of the United States entertains no doubt that, after the avowal of the transaction as a public transaction, authorized and undertaken by the British authorities, individuals concerned in it ought not, by the principles of public law and the general usage of civilized states, to be holden personally responsible in the ordinary tribunals of law for their participation in it. And the President presumes that it can hardly be necessary to say that the American people, not distrustful of their ability to redress public wrongs by public means, cannot desire the punishment of individuals when the act complained of is declared to have been an act of government itself. The indictment against McLeod is pending in a state court, but his rights, whatever they may be, are no less safe, it is to be presumed, than if he were holden to answer in one of the courts of

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this government. He demands impunity from personal responsibility, by virtue of the law of nations, and that law, in civilized states, is to be respected in all courts." On an other occasion, he spoke of the opinion of Mr. Justice Cowen, as "not entitled to be called a respectable opinion." (Webster, Dip. and Off. Papers, p. 126.)

§ 22. As McLeod was acquitted on the trial, there was no opportunity to obtain, by appeal to the federal courts, an opinion of the highest tribunal of the United States on this important question, and the subsequent act of congress has obviated all danger of the recurrence of a similar case. The opinion of Mr. Justice Cowen, however, seems not to have received the approbation of the best judicial minds of his own state, and to have been very generally condemned in other states, and by the political authorities of the federal government. It can, therefore, hardly be regarded as an authoritive exposition of the principles of international law, however sound its interpretation of the statutes of his own state may be regarded by the courts of that state. Moreover, opinions and decisions of state courts are not deemed of binding authority in questions of international law, even where supported by sound reasons, the federal courts alone having jurisdiction. of questions of that nature. (Webster, Dip. and Off. Papers, p. 137; Tallmadge, Review, etc., 26 Wendell, Rep. app., p. 663; Brightly, Digest of Laws of U. S., p. 302; Dunlop, Digest of Laws of U. S., p. 1014; U. S. Statutes at Large, vol. 5, p. 539.)

§ 23. Mr. Lee, the third attorney-general of the United States, says: "It is as well settled in the United States as in Great Britain that a person, acting under a commission from the sovereign of a foreign nation, is not amenable for what he does, in pursuance of his commission, to any judiciary tribunal of the United States." Judge Story, in speaking of the seizure of an American vessel and cargo by a Spanish vessel, said, that if she had a commission, it was an act of the Spanish government; and if she had no commission, but the act was adopted and acknowledged by the crown, or its competent authorities, the seizure must be considered as for the benefit of the crown, and the property, when condemned, becomes a droit of the government. This view of the question is supported by the opinions of chancellor Kent, chief justice Spencer, and judge Tallmadge, of New York; chief justice Gibson, of Pennsylvania; Professor Greenleaf, of Harvard University, and numerous other distinguished jurists of the United States. (Lee, Opinions of U. S. Att'ys Gen'l., vol. 1, p. 81; Carrington, et al. v. C. Ins. Co., 8 Peters, Rep., p.