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approval, the representations of the government of the United States were disregarded. The neglect on the part of the government of the United States to follow up the subject resulted from the delay and evasions of the British ministry, and from a natural reluctance to precipitate war, while the British government affected an attitude of irresponsibility. It is certain that under the circumstances of the case, the right to redress was neither waived nor abandoned, and the arrest of a British subject, who was one of the armed party, at length made it necessary for Great Britain to assume the full responsibility.

It has been gravely argued, that in consequence of the neglect of Great Britain to assume the act, the arrest of the individual enabled the United States to treat the whole aggression, even after the recognition of Great Britain, as the unauthorized crime of isolated individuals.

Those who employ such an argument seem to forget, that the great point to be sustained by the United States is the immunity of their soil, and that the principal question is one of national honor. We cannot say that this is simply the crime of an individual. Great Britain has taken a very different stand, which has precluded us from that position. She assumes the aggression, avows it as founded upon principles of national law, hereafter to be acted upon, and declares that the act of her subject was her own act. The great point, therefore, with which negotiations commenced, still continues and has been presented and strongly enforced by the present secretary of state, while the other question, the personal liability of McLeod and his associates, is drawn after it as an incident.

The negotiations commenced by a waiver of individual liability, and a resort to the sovereign as primâ facie liable, by a waiver of hostilities, and with a claim of indemnity from Great Britain. Those negotiations continue. Though they have been embarrassed by delay, their character has never changed, and the inconsistency of proceeding criminally against the agent, whilst negotiating with the principal, continues as striking as in the VOL. XXVI. -NO. LI.


commencement of difficulties. This inconsistency results from the very course taken by the United States. They have never regarded the burning of the Caroline as such an aggression as placed the two countries in a hostile attitude. The government has never in any stage of the discussion acquiesced in releasing Great Britain, with the purpose of holding her subject to responsibility.

It is not denied, that the United States might have immediately retaliated, for the hostile act of Great Britain, upon McLeod and all the other individuals concerned, nor that they might before negotiations commenced have proceeded criminally against those individuals, but only that such proceedings could have been pursued concurrently with negotiations.

If, after the arrest of McLeod, negotiations had been broken off, the case would have been somewhat varied, but although the British government assumed the responsibility of the act, negotiations were continued on the part of the United States, whilst at the same time the indictment was pending.

If the British ministry had not evaded the question of responsibility, McLeod would never have been arrested, because the United States at all times sought indemnity from England, and not from her subject. The assumption of the act by England changed the character of this arrest. Henceforward, in the opinion of the government of the United States, it became impossible to detain McLeod, and at the same time hold England to her responsibilities.

The secretary of state therefore distinctly declared to Mr. Fox that McLeod ought to be released, but at the same time announced the firm determination of his government to exact redress from England. Mr. Webster did not content himself with admitting the claim of Mr. Fox for McLeod's liberation, and rest upon a demand of satisfaction from his government, but anticipating that the English government would attempt to vindicate itself by the plea of necessity, stated the very predicaments within which it would be necessary for that nation to bring itself to sustain that justification

It is impossible to deny that there are many cases, in which an aggression upon neutral territory would be justifiable, where two conterminous powers are separated by an imaginary line. Suppose that a British fleet, anchored in Niagara river, were attacked by fireships from the American side. Can there be any doubt of the right to fire across the “ thread of the river.” Would it be claimed that the incendiaries might pursue their designs with perfect impunity, if protected by an imaginary line ?

But these rights of defence and aggression are evanescent. They cannot be deferred, for they vanish with the hour. They exist in hot pursuit, and disappear entirely when the blood has had time to cool. We are bound to acknowledge, that if the Caroline had been engaged in conflict with the armed force which destroyed her, and had been pursued into American waters, the aggression would have been entirely justifiable. Such, however, was not the fact. If there had been any conflict during the day, there had been time for the blood to cool. There was no hot pursuit, and the steamer was quietly moored in the night season, on the American shore.

It is not now assumed in these negotiations, that the act of destroying the Caroline and the military excursion were of course wrongful, but it is distinctly admitted, that if the British government can bring itself within certain conditions stated, then its acts were justifiable. Now, whilst these negotiations are pending, and whilst the facts of the case and the principles which govern them are in controversy, we think it most absurd to proceed in a' criminal indictment against McLeod, the agent. It is admitted by the government, that though he may have been guilty of the offence stated in the indictment, still in a case supposed he is not guilty of any crime, because the act of his government was justifiable. Will it be said that the question of his guilt depends upon the ability of the British government to bring itself within the predica. ments stated ? Must McLeod allege in his defence all the reasons of state which might have influenced and justified the government of Great Britain ? Does his guilt or innocence depend upon the issue of negotiations ? Will it be said that he may be detained provisionally until the event of negotiations is known ? But his very detention would be regarded as an act of retaliation, and might possibly be considered as such an act of hostility as would put an end to negotiations.

The true rule seems to be, that the injured nation has a right to elect between negotiation and acts of retaliatory hostility, between taking the means of redress into her own hands, and yielding up the very instruments of wrong to the sovereign of whom indemnity and satisfaction is claimed.

The very time of the act of aggression is the moment when the nation injured must decide upon the remedy. It may then punish the individual aggressors in the heat of strife. It may repel, and assail the country of the aggressor in turn. But if, when the heat of battle is over, negotiations and conferences have followed, then the wrong inflicted in the individual instance furnishes one only in the list of wrongs which may remain to be redressed by general war. The object of the war would be not to reach the individual aggressor, not to wreak vengeance upon the parties to the injury, but to render the sovereign responsible, and to seek from the head of the state, as the consequence of hostilities, full and adequate indemnity as well as security for the future.

They who maintain that the secretary of state erred in conceding that McLeod ought not to be tried, if the responsibility for his acts was assumed by Great Britain, suppose that the aggressors might be punished for a crime, and yet peace be maintained with that government under whose authority the alleged crime was committed. The error is palpable. That government would be base and abject, which would permit those who had acted under its authority, in a measure of quasi hostility, or in the assertion of a claim of belligerent right against a foreign state, to be punished for that obedience, without exerting her utmost force for their protection. When the act of the subject was acknowledged and authorized by the sovereign, peace with the state would be inconsistent with criminal proceedings against the subject. Those proceedings would constitute open war against the sovereign, and the war which was directed against individuals, would of necessity

become general. It would be impossible for the British government to decline a war thus forced upon it. Great Britain would be required, by every principle of justice, to protect her subjects, whose safety was compromised only by obedience to the commands of the sovereign. The propriety of the enterprise, its consistency with relations of peace and the obligations of treaties, its lawfulness, and its necessity in such an emergency, can never be permitted to come into discussion. Proceedings against the individ. uals engaged in the expedition would precipitate a conclusion, and bar all negotiation. The only inquiry on the part of the British government would be, whether the parties implicated had acted under her authority; and there could be no question entertained as to the character of the enterprise, because it was of a public nature, and the government had impliedly guarantied to the individuals engaged in it immunity and protection.

If, however, Great Britain should suffer the outrage to pass unnoticed, still an occasion would be furnished for a refusal on her part, further to entertain negotiations respecting other subjects of controversy, and the consideration of the claim of the United States, to redress and satisfaction for the invasion of their territory, would be precluded. This would be a certain consequence of the attempt to subject the agents of a foreign government to punishment for their acts in a public character, without regard to the claim of right presented on the part of the foreign state.

It could not be pretended that the injured government was entitled to double satisfaction. In the case under consideration, the United States demand redress of Great Britain for the invasion of their territory. Whilst this demand is pending, the subject of the latter power, who was employed as the instrument of the aggression, comes within their reach, is arrested, and it is proposed to subject him to punishment in his own person, as if the national wrong was his own private offence. The consequence would be, that Great Britain would refuse entirely to atone for the public wrong, or even to consider it. She would take the ground and with great justice, that we had sought and found satisfaction from her subject, and that, therefore, we were not entitled to redress

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