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principle of public policy, that of preserving to the country the services of this most useful but most improvident and often destitute class of citizens.
The case at bar was not one of absolute shipwreck, but rather what has been called seni-naufragium. The vessel was brought into port in so damaged a condition, and requiring so large an outlay in repairs to refit her for sea, that for the interest of the owner she was sold as a wreck. Between the owners and the crew she must be considered for the purposes of this case either as a wreck, or not a wreck. Upon the latter hypothesis, the sale must be considered as voluntary, and then the two months wages under the statute will be due. On the other the principles of the maritime law will apply. Between the owners and the crew, it appears to me, in the present case, that the true measure of justice will be, to consider her to be what the owners treated her as being, a wreck. And as the libellant faithfully performed his duty so long as his service was required, he is entitled to the benefit of the rule, that in addition to his wages the master shall provide for his expenses home. I shall allow for this purpose one month's additional wages.
1.- Opinion of the supreme court of New York, delivered by jus
tice Cowen, on the application of Alexander M'Leod, to be discharged from imprisonment. Utica Observer, July 13, 1841.
SOME of the most difficult as well as most interesting questions of international law are those which have grown out of the relations of neutral and belligerent nations.
The neutral power often furnishes an asylum, protection, muni. tions of war, and all the means of annoyance to one of the bel. ligerent parties ; and, as a natural consequence, the party in conflict against whom these advantages are used is frequently compelled to come in collision with the nation professing to assume a neutral attitude. When, a few years since, a band of outlaws were engaged in an unequal contest with Great Britain, the United States occupied the position of a neutral power, and the government scrupulously endeavored to maintain that character. Still the people on the frontier where the contest existed extended not only their sympathy, but the means of war, as well as countenance and protection, to the outlaws. We do not use the term with harshness, for the individuals were violating the laws of the United States, or were rebels against Great Britain, and were clearly out of the protection of law in either country.
The individuals who were engaged in carrying on the contest with Great Britain, at length obtained possession of Navy Island, on the British side of Niagara river, and a steamer called the
Caroline was employed in aiding the various objects of those concerned in the enterprise. An expedition was soon after planned by a detachment of British troops, to destroy her, one of whom was said to have been McLeod, the individual who has been in. dicted for murder and arson within the jurisdiction of the state of New York. She was accordingly attacked in the dead of night whilst lying at the wharves of the American shore, after having been engaged in the service of the outlaws during the day, her crew overcome, a citizen of the United States killed in the melée, and the steamer itself set on fire and sent over the falls of Niagara.
The territory of the United States was therefore invaded, and the crimes of murder and arson were also committed, by an armed band from the British dominions and acting under British authority, unless the circumstances of the transaction were such as to justify the belligerent in pursuing her enemy into the territories of a neutral, and unless the British government is alone responsible. That government, however, was responsible for the aggression, because the armed party consisted of troops under the command of British officers, proceeded from the British dominions, and after consummating the object of their enterprise retired within those dominions, and until this apparent act of hostility was disavowed, the government of the United States might properly consider it as emanating from the British government.
The United States might also, at their election, institute criminal prosecutions against those individuals of the party who should fall into their power, without regarding the British government as a principal in the transaction, until she distinctly recognised and affirmed the hostile proceeding.
If the act was recognised by the British government as an act of hostility against the United States, the two countries would be in a state of war, and the individuals engaged in hostilities, if within the United States, might be treated as prisoners of war.
But if the British government, whilst assuming the responsibility of the aggression, disavowed hostility to the United States, it would then be a question for the latter government whether Great Britain could be permitted to sustain and justify the aggression as not inconsistent with peaceful relations.
The aggression, when acknowledged by the British government, could not be justified for some purposes by the United States and condemned for others. It could not be regarded as excusable in the government and criminal in the subject. If the circumstances of the case justified the British government, the armed force was justifiable.
The only ground upon which criminal proceedings can be sustained against McLeod, if Great Britain is responsible, is that the act in which he participated was either an act of open hostility, or that it was the exercise of such a belligerent pretension and claim of right against a neutral as the United States instantly repelled, electing to treat it as a subject not of negotiation, but of immediate hostilities.
It is true, that even in that event the usages of international law would have required that McLeod and his associates, when arrested, should be treated as prisoners of war, but if they had been executed whilst war was actually existing between the two countries, no other result would have followed than measures of retaliation. It is only when relations of peace exist de facto, and when war may be a consequence of a violation of right, that the question is attended with consequences of great practical interest.
Immediately after the aggression, it became necessary for the government of the United States to determine whether to treat it as an act of hostility on the part of Great Britain, or to regard the aggression as founded upon a claim of right, and whilst waiving a resort to retaliatory measures, to entertain negotiations respecting the claim of right.
If the act was one of decided hostility, admitting neither of explanation nor of justification, it would have been derogatory to the character of the government to enter upon any diplomatic discussion. But after electing to negotiate, and waiving a resort to measures of forcible redress and retaliation, a state of hostilities could not be considered as existing. Neither could the United States, after presenting the outrage as a national wrong against
Great Britain, when that power recognised the act as authorized by the government, to take the ground that the aggression was a private wrong, and a crime committed by unauthorized indi. viduals.
If McLeod and his companions had invaded the territory of the United States, without authority and without sanction, they would be liable to be tried for a crime, and would be subject to the punishment of common felons.
If the same acts of aggression were authorized by Great Britain, the offence of the subject ought, by the usages of nations, to be merged in the act of the sovereign. As we have already observ. ed, the circumstances of the case justified the presumption, that the invasion was made under the authority of Great Britain.
It is true, and it is certainly very remarkable, that when the United States presented the outrage to the notice of the British government, it was neither acknowledged nor repudiated as emanating from British authority. The government of the United States might very properly have repelled this shuffling policy as evasive and unworthy of the generally lofty tone of British diplo. macy. It was due to this country that Great Britain should admit or distinctly disavow the highhanded acts of her subjects. If they were felons, acting under her colors, and wearing her uniform, they ought to have been forthwith punished, or yielded up to the justice of the United States. But it is notorious that these individuals have enjoyed, in return for their services, the distinguished favor of their sovereign. Although not directly acknowledged, the enterprise has been justified as one which British subjects might lawsully undertake. We cannot entertain a doubt, that Great Britain had made herself responsible for the act of McLeod long before his arrest, as fully as if she had distinctly avowed it. As well might she avoid responsibility if her navy had destroyed every American ship on the ocean, when its officers and men had received on their return to port rewards and promotion. All the circumstances showed that the British government all along sanc. tioned the outrage. A reasonable time had elapsed, years even had rolled by, and notwithstanding the circumstances indicating