McLeod's, a State court might take final judgment into its own hands? An ultimate reference, in some way, to the judicial authorities of the United States, of questions connected with the foreign relations of the country, and which may involve its peace, would seem to be quite essential. Under the influence of such a conviction, and with this decision of the Supreme Court of New York before it, Congress, on the 29th of August, 1842, passed the following act:

"An Act to provide further remedial Justice in the Courts of the United States.

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That either of the justices of the Supreme Court of the United States, or judge of any District Court of the United States in which a prisoner is confined, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in all cases of any prisoner or prisoners in jail or confinement, where he, she, or they, being subjects or citizens of a foreign state, and domiciled therein, shall be committed or confined, or in custody, under or by any authority or law, or process founded thereon, of the United States, or of any one of them, for or on account of any act done or omitted under any alleged right, title, authority, privilege, protection, or exemption, set up or claimed under the commission, or order, or sanction of any foreign state or sovereignty, the validity and effect whereof depend upon the law of nations, or under color thereof. And upon the return of the said writ, and due proof of the service of notice of the said proceeding to the Attorney-General, or other officer prosecuting the pleas of the State under whose authority the petitioner has been arrested, committed, or is held in custody, to be prescribed by the said justice or judge at the time of granting said writ, the said justice or judge shall proceed to hear the said cause; and if, upon hearing the same, it shall appear that the prisoner or prisoners is or are entitled to be discharged from such confinement, commitment, custody, or arrest, for or by reason of such alleged right, title, authority, privileges, protection, or exemption so set up and claimed, and the law of nations applicable thereto, and that the same exists in fact, and has been duly proved to the said justice or judge, then it shall be the duty of the said justice or judge forthwith to discharge

such prisoner or prisoners accordingly. And if it shall appear to the said justice or judge that such judgment or discharge ought not to be rendered, then the said prisoner or prisoners shall be forthwith remanded: Provided always, That from any decision of such justice or judge an appeal may be taken to the Circuit Court of the United States for the district in which the said cause is heard; and from the judgment of the said Circuit Court to the Supreme Court of the United States, on such terms and under such regulations and orders, as well for the custody and appearance of the prisoner or prisoners as for sending up to the appellate tribunal a transcript of the petition, writ of habeas corpus returned thereto, and other proceedings, as the judge hearing the said cause may prescribe; and pending such proceedings or appeal, and until final judgment be rendered therein, and after final judgment of discharge in the same, any proceeding against said prisoner or prisoners in any State court, or by or under the authority of any State, for any matter or thing so heard and determined, or in process of being heard and determined, under and by virtue of such writ of habeas corpus, shall be deemed null and void."

The authorities of public law would appear to be under no doubt of McLeod's right to be exempted from personal responsibility for any act he might have committed as a member of a military force acting under the authority of its government.

The following citations may be sufficient to establish this, and to maintain the principles stated in Mr. Webster's letter to the AttorneyGeneral.

"On all occasions susceptible of doubt, the whole nation, the individuals, and especially the military, are to submit their judgment to those who hold the reins of government, to the sovereign. This they are bound to do, by the essential principles of political society and of government. What would be the consequence if, at every step of the sovereign, the subjects were at liberty to weigh the justice of his reasons, and refuse to march to a war which might to them appear unjust? It often happens that prudence will not permit a sovereign to disclose all his reasons. It is the duty of subjects to suppose them just and wise, until clear and absolute evidence tells them the contrary. When, the refore, under the impression of such an idea, they have lent their assistance in a war which is afterward found to be unjust, the sovereign alone is guilty; he alone is bound to repair the injuries. The subjects, and

in particular the military, are innocent; they have acted only from a necessary obedience.”*

"Indeed, in solemn war, the individual members of a nation which has declared war are not punishable by the adverse nation for what they do, because the guilt of their actions is chargeable upon the nation which directs and authorizes them to act. But even this effect may be produced, though not in the respect of all the members of the nation, yet in respect of some of them, without a declaration of war. For, 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."+

"A mere presumption of the will of the sovereign would not be sufficient to excuse a governor or any other officer who should undertake a war, except in case of necessity, without either a general or particular order. For it is not sufficient to know what part the sovereign would probably act, if he were consulted in such a particular posture of affairs; but it should rather be considered, in general, what it is probable a prince would desire should be done, without consulting him, when the matter will bear no delay and the affair is dubious. Now, certainly, sovereigns will never consent that their ministers should, whenever they think proper, undertake without their order 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 order may have had, it is left to the sovereign whether he will ratify or condemn the act of his ministers. If he ratify it, this approbation renders the war solemn, by reflecting back, as it were, an authority upon it; so that it obliges the whole commonwealth."

* Vattel, Book III. Ch. II. § 187. Rutherford, Book II. Ch. IX. § 18. Burlamaqui, Part IV. Ch. III. §§ 18, 19.

23*

TREATY OF WASHINGTON OF 1842.

THE NORTHEASTERN BOUNDARY.

A LEADING object sought to be accomplished, and which was accomplished, by the treaty of Washington, was the settlement of the controversy between the United States and England relative to the northern and northeastern boundary of the United States.

The history of this controversy, from the treaty of peace in 1783, to its final adjustment in 1842, is given in Mr. Webster's speech in the Senate, of the 6th and 7th of April, 1846.* In the summer of 1841, Mr. Webster signified to Mr. Fox, the British Minister at Washington, that, having received the President's authority for so doing, he was then willing to make an attempt to settle the boundary dispute, by agreeing on a conventional line, or line by compromise. In September of that year the ministry of Sir Robert Peel came into power; and in December following, Lord Aberdeen, Secretary of State for Foreign Affairs, informed Mr. Edward Everett, at that time Minister of the United States at the Court of London, that the Queen's government had determined to send Lord Ashburton as a special minister to the United States, with full powers to settle the boundary and all other questions in controversy between the two governments. This information was immediately communicated by Mr. Everett to Mr. Webster, in a letter dated the 31st of December, 1841, to which Mr. Webster replied as follows:

Mr. Webster to Mr. Everett.

[EXTRACT.]

Department of State, Washington, January 29, 1842. By the Britannia," arrived at Boston, I have received your despatch of the 28th of December (No. 4), and your other de

* Vol. V. p. 78.

spatch of the 31st of the same month (No. 5), with a postscript of the 3d of January.

The necessity of returning an early answer to these communications (as the "Britannia" is expected to leave Boston on the 1st of February) obliges me to postpone a reply to those parts of them which are not of considerable and immediate importance.

The President has read Lord Aberdeen's note to you of the 20th of December, in reply to Mr. Stevenson's note to Lord Palmerston of the 21st of October, and thinks you were quite right in acknowledging the dispassionate tone of that paper. It is only by the exercise of calm reason, that truth can be arrived at in questions of a complicated nature; and between states, each of which understands and respects the intelligence and the power of the other, there ought to be no unwillingness to follow its guidance. At the present day, no state is so high as that the principles of its intercourse with other nations are above question, or its conduct above scrutiny. On the contrary, the whole civilized world, now vastly better informed on such subjects than in former ages, and alive and sensible to the principles adopted, and the purposes avowed, by the leading states, necessarily constitutes a tribunal august in character and formidable in its decisions. And it is before this tribunal, and upon the rules of natural justice, moral propriety, the usages of modern times, and the prescriptions of public law, that governments, which respect themselves and respect their neighbors, must be prepared to discuss with candor and with dignity any topics which may have caused differences to spring up between them.

Your despatch of the 31st of December announces the important intelligence of an intention of despatching a special minister from England to the United States, with full powers to settle every matter in dispute between the two governments; and the President directs me to say, that he regards this proceeding as originating in an entirely amicable spirit, and that it will be met, on his part, with perfectly corresponding sentiments. The high character of Lord Ashburton is well known to this government; and it is not doubted that he will enter on the duties assigned to him, not only with the advantages