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ties are, forfeiture of the ship and the owner's goods, and of double the value of the shipments; and the offences are besides, a transportable felony in superior officers and persons, and a misdemeanor in petty officers and seamen serving on board such ships.'
In the construction of the 45th section of this act, which extends to persons seizing and prosecuting under the benefit of the 4 Geo. 3, c. 15, and any other act made for the protection of officers seizing and prosecuting for any offence against the said acts, it has been decided by the judicial committee of the privy council,' " that it is not the provisions for their benefit, but for their protection only, that are referred to, such as the exemption from liability to costs and actions for seizures, if the judge should certify that there was reasonable cause for seizure; and that therefore the burthen of proof of the facts necessary to constitute a liability to forfeiture or penalties lies on the prosecutor, as in ordinary cases, and not on the defendant as under those acts, and consequently, that it does not lie on the master to prove that any persons on board of his ship were not slaves, or persons falling within the description of the act, nor to disprove his knowledge of that circumstance, if such knowledge be necessary to constitute the offence."
15 Geo. IV, c. 113, ss. 2, 4, 10, 11.
ART. IV. – THE RIGHTS OF GREAT BRITAIN TO REDRESS, AND OF THE UNITED STATES TO INDEMNIFICATION, RESPECTIVELY, IN THE AFFAIR OF McLEOD AND FOR THE BURNING OF THE CAROLINE.
The acquittal and discharge of McLeod, we may be permitted to believe, will prevent the occurrence of actual war
between the United States and Great Britain, by removing that miserable entanglement which existed in their diplomatic relations. Still there remain serious difficulties growing out of questions connected with that subject and the respective rights of the two countries involved in those questions.
If the detention and trial of McLeod amounted to an act of retaliatory hostility on the part of the United States, their responsibilities and the degree of redress will be immeasurably greater than if the wrong inflicted in that case, though constituting a claim for redress, was not of a character to dissolve existing relations of peace. The British government, as we have attempted to show on a former occasion, was aggrieved by the arrest of that individual, because it was an attempt to avoid the consequences of the pendency of negotiations. If Great Britain should establish her right to make the incursion in the case of the Caroline, a consequence would be the entire justification of the individuals of the party, within the line of their authority. There was an incompatibility in proceeding criminally against the subject, whilst negotiating with the sovereign respecting the lawfulness of an act, in which the subject was an agent only of the state. In such proceedings there would be faithlessness on the part of the state resorting to them, and indignity to the sovereign whose subject is indicted for obedience to commands, the rightfulness of which, it is agreed, shall be made the subject of negotiation.
This incompatibility, this faithlessness, and manifestation of indignity, all result from the consideration that the criminal proceedings are instituted by the state, which, claiming to have suffered a wrong, yet consents to negotiate and to waive the right of enforcing measures of redress.
The obligations of the government of the United States affect directly only the federal government, and do not create any claim on the individual states. The general government
is, to a certain extent, answerable for the action of the state tribunals, but cannot directly control them. Although the weakness or peculiarity of our system furnishes no excuse for failure in the performance of our obligations, yet if there is a mode in which those duties may be performed, it is quite unimportant that the mode is indirect.
In the case of McLeod, if the United States had been a consolidated nation, exercising all the functions of government, instead of a confederacy, acting under a constitution of enumerated powers, whilst the residue of the functions of government were exercised by the individual states, that person would have been indicted in a court of the United States, and if the obligations of the government required it, the executive might have ordered a nolle prosequi to be entered at once: but as the indictment was pending in the state of New York, over the criminal jurisdiction of whose courts the president had no direct authority, he could only call on the executive of the state to perform those acts which the general government, as representing the state of New York, was responsible for. Then it became the duty of the governor of the state to direct a nolle prosequi to be entered immediately, and as it was a part of the oath of office of the governor, faithfully to execute his duties under the constitution of the United States, he would be guilty of a gross violation of those duties, in failing to yield to Great Britain those rights which the president had recognised in the exercise of his constitutional functions. The detention and trial of McLeod was not, therefore, a national act. The courts are bound to proceed and try indictments pending before them. The president has no other way of suspending proceedings, than by applying to the governor to exercise his official duties, by ordering a nolle prosequi. If the governor of the state refuses or fails to perform that duty, he is guilty of malversation in office, for which, perhaps, he is impeachable; but his neglect or refusal to execute those duties which
have been settled by the general government, and which have been prescribed to him as flowing from rights vested by treaties in a foreign power, does not present the United States in the light of a nation faithless to treaties. And if the president resorts to all constitutional means within his power to fulfil the duties of the country, certainly no indig. nity is offered to the sovereign, whose subject is detained by an officer of the government, who in that detention not only acts without authority from the government, but violates his own constitutional duties. No incompatibility exists between negotiations and criminal proceedings under such circumstances, because the United States are not a party to such proceedings. The governor of the state has acted on his own responsibility, and violated his duties to the general government. Although he is the head of a sovereign state, still where the federal government supersedes the individual states, becomes responsible for them, as it does in all foreign relations, and represents them, creating obligations by treaties and divesting them of preëxisting rights, the officers of the states, in the exercise of duties imposed upon them by law relative to those subjects, become subordinate to the general government.
The wrong done to McLeod was regarded as injurious to Great Britain, because it was considered a measure of retaliation, and an act of war on the part of the United States, such as would not admit of the existence of relations of peace on the part of Great Britain. But if the hostile act is disclaimed by the United States, and if it is shown to depend upon the breach of duty by a subordinate officer, subordinate on all questions of war and peace, then it cannot be regarded as retaliatory on the part of the United States. Under these circumstances, the subject is to be regarded precisely as if the wrong had been inflicted by a subordinate officer of the United States upon a British subject, entirely disconnected with the government, instead of
an individual arrested for having acted in obedience to its commands. The United States might be responsible for the safety of a British subject thus unlawfully detained, but if the detention was not a measure of retaliatory hostility, the act would not preclude negotiation, and might be redressed or atoned for like any other wrong.
So, if, on the other hand, a citizen of the United States had been arrested within the territories of the United States and carried into Canada, as has recently happened, the British government might be responsible for his safety, but the mere arrest and detention would not be an act of hostility. If the individual could be connected with the government of the United States, however, as McLeod has been with the British government, the case would be different. And if the Canadian authorities should refuse compliance with the requisitions of Great Britain for his release, that power would not, in the case supposed, be responsible as for an act of aggressive hostility, even if the individual represented the government of the United States in the act for which he might be indicted.
If a different rule were to prevail, great mischief would be the consequence. Nations have it not in their power, at all times, to carry into effect their laws throughout the extent of their dominions, or to render the officers of government in every department of the state obedient to the behests of the sovereign head. The admiral of a British fleet
for example, detain a sailor who has been impressed and punish him as for a personal offence, for obeying the commands of a foreign government, and he may refuse to deliver him up on the requisition of the government of Great Britain, without compromising the relations of peace sustained by his sovereign. He has been guilty of a great offence against the state, for which he would be liable to punishment, but the sovereign, having made all proper exertions to fulfil the duties of the state, would not be considered as standing in