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 or 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 of 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 M'Leod'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 attorney general.

"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, therefore, 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."--Vattel, b. iii., ch. ii., § 187.

"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 can not, 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."-Rutherford, b. ii., ch. ix., § 18.

"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 con-demn 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." -Burlimaqui, Part iv., ch. iii., § 18 and 19.

RIGHT OF SEARCH.

Mr. Everett to Mr. Webster.-[EXTRACTS.]

LEGATION OF THE UNITED STATES, London, December 28, 1841. While at Paris, I received a letter from Lord Aberdeen of the 2d December, with sundry accompanying documents, relative to an extraordinary outrage on the person of Captain Endicott, of the American bark Lintin, in Macao Roads. On my return to London, I acknowledged the receipt of this communication, and herewith transmit you a copy of Lord Aberdeen's note and my reply, and of all the documents in the case. I should have been pleased to confine my answer to a simple expression of satisfaction at the promptness of the action of her majesty's government; but I deemed it but just to Captain Endicott to make an observation in answer to that part of Lord Aberdeen's note in which the burden of the provocation was assumed to be on Captain Endicott's side.

I received on the 23d instant a note from Lord Aberdeen on the African seizures, in reply to one addressed to him by Mr. Stevenson in the last hours of his residence in London, and which, as it appears, did not reach Lord Aberdeen's hands till Mr. Stevenson had left London. As some time must elapse before I could give a detailed answer to this communication, I thought it best at once to acknowledge its receipt, to express my satisfaction at its dispassionate tone, and to announce the purpose of replying to it at some future period. The Presi dent, I think, will be struck with the marked change in the tone of the present ministry, as manifested in this note and a former one addressed by Lord Aberdeen to Mr. Stevenson, contrasted with the last communication from Lord Palmerston on the same subject. The difference is particularly apparent in Lord Aberdeen's letter to me of the 20th inst. Not only is the claim of Great Britain, relative to the right of detaining suspicious vessels, stated in a far less exceptionable manner than it had been done by Lord Palmerston, but Lord Aberdeen expressly declines being responsible for the language of his predecessor.

You will observe that Lord Aberdeen disclaims, in a more distinct manner than it has ever been done, all right to search,

detain, or in any manner interfere with American vessels, whether engaged in the slave trade or not; that he limits the pretensions of this government to boarding vessels strongly suspected of being those of other nations unwarrantably assuming the American flag; and promises, when this right has been abused to the injury of American vessels, that full and ample reparation shall be made. As the United States have never claimed that their flag should furnish protection to any vessels but their own, and as very strict injunctions have been forwarded to the cruisers on the coast of Africa not to interfere with American vessels, I am inclined to think that cases of interruption will become much less frequent. And if this government should redeem in good faith Lord Aberdeen's promise of reparation where injury has been done, I am disposed to hope that this subject of irritation will in a great measure cease to exist. I shall not engage in the discussion of the general principles as now avowed and explained by this government till I hear from you on the subject, and know what the President's views are; but I shall confine myself chiefly to urging the claim for redress in the cases of the Tigris, Seamew, Jones, and William and Francis, which were the last submitted by my predecessor, and on which no answer has been received from this government.

Among the reasons for supposing that fewer causes of complaint will hereafter arise, is thè circumstance that the seizures of last year took place under the agreement of Commodore Tucker, the British commander on the African station, and the officer in command of the American cruiser. I find nothing on the files of the legation showing what order, if any, has been taken by our government on the subject of this arrangement. It is taken for granted by this government that this agreement is disavowed by that of the United States; and since February last positive orders have been given to the British cruisers in the African seas not to interfere with American ships, even though known to be engaged in the slave trade. I shall await with much anxiety the instructions of the President on this important subject.

[INCLOSURE.]

FOREIGN OFFICE, December 2, 1841. SIR,-I have the honor to inform you that the Lords Commissioners of the Admiralty have communicated to me a dispatch and its inclosures, which their lordships have recently received from Commodore Sir J. Gordon Bremer, dated Hong Kong, the 9th of August last, relative to the improper conduct of Mr. Bean, master and commanding officer of her majesty's ship "Herald," toward the master of the American barque

"Lintin," while at anchor in the Taypa Roads, near Macao. It appears from these papers (copies of which I have the honor to inclose, for the information of your government), that some altercation having taken place respecting the mooring of their respective vessels, the master of the " Herald," in the afternoon of the 24th of July, manned and armed a boat, and sent the mate of the "Herald" alongside the "Lintin" with orders to require the master of that vessel to go on board the “ Herald;" and that, upon his refusing to go, he was forcibly conveyed thither, and there detained for some hours.

Although it would appear, from the details given in the inclosed papers, that the master of the "Lintin" brought this indignity upon himself by his own irritating and contemptuous conduct toward the commander of the "Herald," yet her majesty's government consider such provocation as no justification for the proceeding adopted by Mr. Bean, and the Lords Commissioners of the Admiralty have accordingly signified to that officer their high displeasure at his indefensible conduct upon this occasion, and have ordered him to be dismissed from her majesty's service and sent home. I have, &c.,

EDWARD EVERETT, Esq.

ABERDEEN.

Lord Aberdeen to Mr. Everett.-[INCLOSURE.]

FOREIGN OFFICE, December 20, 1841.

The undersigned, her majesty's principal Secretary of State for Foreign Affairs, has the honor of addressing to Mr. Everett, envoy extraordinary and minister plenipotentiary of the United States, the observations which he feels called upon to make in answer to the note of Mr. Stevenson, dated on the 21st of October.

As that communication only reached the hands of the undersigned on the day after the departure of Mr. Stevenson from London, on his return to America, and as there has since been no minister or chargé d'affaires from the United States resident in this country, the undersigned has looked with some anxiety for the arrival of Mr. Everett, in order that he might be enabled to renew his diplomatic intercourse with an accredited representative of the republic. Had the undersigned entertained no other purpose than to controvert the arguments of Mr. Stevenson, or to fortify his own, in treating of the matter which has formed the subject of their correspondence, he would have experienced little impatience; but as it is his desire to clear up doubt, and to remove misapprehension, he feels that he can not too early avail himself of the presence of Mr. Everett at his post, to bring to his knowledge the true state of the question at issue.