Imágenes de páginas
PDF
EPUB

a hostile attitude. If the judges of Westminster hall should permit the ambassadors of foreign powers to be arrested by the process of their courts for debt, or to be subjected to indictments for the violation of municipal regulations, they would be worthy of impeachment, but the government would not be regarded as having violated the obligations of treaties, if it had resorted to suitable means to prevent the outrage. If the Canadas or Ireland should be in a state of revolt, and if the government should be unable to sustain the principles of international law, Great Britain would not be responsible for their infraction, however foreign states might be injured by the violation of those rights, of which Great Britain had guarantied the observance. So, if in the case mentioned in the British parliament, an appeal of murder had been made in England, in a case similar to that of McLeod, the government might be unable to intervene and put an end to the process by a pardon or in any other way, by reason of a constitutional difficulty, and yet the nations would not have been chargeable with any act or neglect calculated to disturb relations of peace.

Some confusion has existed in England, in the view taken of the case of McLeod, from not discriminating properly between the rights of that individual and those of Great Britain. It has been supposed, that as Great Britain had a right to exact from the United States a consistent line of conduct, and that as Great Britain was bound to protect her subject, in acting in obedience to her commands whilst the United States continued at peace with the sovereign, and as, in certain circumstances, a wrong inflicted on the individual would constitute hostilities against the state, that, therefore, under all circumstances, an injury to McLeod must be considered an outrage upon Great Britain. It has been assumed in the debates in parliament, and we believe in diplomatic communications, that unless his safety was guarantied, war was inevitable, but this view of the subject

is erroneous. The importance attached to the wrong done to McLeod depended upon the consideration, that he was a party to the exercise of the claim of belligerent right, and that the United States was proceeding against him as the representative of his government in its belligerent acts. But the proceedings against McLeod do not constitute a wrong amounting to hostilities, unless the United States are a party to those proceedings. Acts of hostility cannot be committed by integral parts of the nation, though gross injuries may be inflicted for which the nation is eventually liable. It is true, that an indictment instituted by the state of New York is the only mode in which the commonwealth could proceed against the parties concerned in the aggression on their territory, and primâ facie such criminal process might be regarded as sanctioned by the United States; but it might also be disavowed, and then it could no longer be considered as emanating from the government. If the United States had not disavowed the acts of the state of New York, they would have been regarded as retaliatory, and would have been followed by hostilities on the part of Great Britain. When disavowed by the United States, those acts should be regarded simply as wrongs, for which the United States were bound to render an indemnity. McLeod is not benefited by the disavowal of the United States. His wrongs continue the same as if the federal government had authorized the indictment, and the United States may be bound fully to indemnify him, but Great Britain is not directly injured by the proceedings, because the United States, as a nation, are not a party to them. Great Britain is bound to protect her subject in the execution of her commands, and the United States to do every thing within their competency to prevent or redress a wrong; but if by reason of the failure of individuals to execute their official duties, or by a quasi revolt of an integral member of the confederacy, the government is made unable to perform all its obligations, such redress must be furnished as it has power to render.

If Great Britain should deem that redress inadequate, she may find therein a cause and a motive of war, but surely if the government of the United States has not been instrumental in the injury; the wrong in itself is not an act of war.

The great difference between the present relations of the two countries, and such as would have existed if the United States had not yielded to the justice of the demand of Great Britain, consists in this, that in the event that the United States had sanctioned the indictment, actual hostilities would have existed, because the criminal proceedings themselves would have been an act of war. The United States having disavowed that measure, Great Britain can treat the wrong which she receives from the state of New York as a cause of war or not, at her election. Actual war it does not constitute. If the United States had justified the detention of McLeod, and thus rendered it the act of the government, the negotiations pending between the two countries must have been broken off. The injury to the subject, perhaps the injury to Great Britain, would have continued the same as if the United States had been the actor, but the mode of redress would have been different. When the United States disavowed the criminal proceedings, Great Britain might seek redress by negotiation, but if the United States had been a party to those proceedings, to have continued negotiations would have been impossible; Great Britain must have sought redress by arms. There may be stated many cases of aggression against a foreign power, by an individual state, where the general government, if a party, must have been regarded as engaged in actual war, but if disavowed by the United States, the injured nation may treat the wrong as an act of war or not, at its election. If the state of New York, by way of retaliation for the supposed wrong of burning the Caroline within the territory of the state, had occupied a part of Canada with an army, Great Britain might very properly have made war upon New York in return, which would in effect have amounted to hostilities against the United States, or she might have sought redress from the general government by negotiation ; but if the United States had been a party to the occupation of Canada, such an act of war could only have been met by correspondent hostilities. Even while New York continued in possession of a part of the British dominions, there would be no incompatibility in the pendency of negotiation between Great Britain and the federal government, of which New York is an integral part; but there would be a very great absurdity in any attempt to carry on negotiations, as compatible with relations of peace, whilst the United States occupied and persisted in the claim to occupy, by way of retaliation, a part of the British dominions in like manner. »

If the United States, hereafter, with a view to terminate an unsuccessful war respecting the disputed boundary, should yield to the claim of Great Britain, and cede by treaty a part of the state of Maine, and if that state, resting upon her alleged sovereignty, should refuse to submit to the treaty and continue to occupy the territory ceded, Great Britain might waive her right to repel the hostile occupation, and whilst continuing at peace with the United States, seek redress from the general government. She might, with entire honor, disregard the hostile demonstrations of the state, which might be guilty of hostile aggressions, but could not carry on regular war. But if the belligerent state was maintained by the general government, the refusal to yield to the engagement of the treaty, would be incompatible with peace, and would amount to a renewal of hostilities. The case stated, however, would by no means be so strong as that in question, because the occupation of the territory might be regarded as a simple claim of right, but the deten

tion of McLeod by the government would be retaliatory, and affect the honor of his sovereign.

It may be said, that the general and state governments do together but constitute the complement of sovereignty; that in those departments where the powers of the general government do not reach, the state government is sovereign, and that so far as it acts within its legitimate sphere, it is the only sovereignty which can subject the nation to liabilities; that it is a matter of very little importance to establish the point, that the United States are not a party to the wrong, if the injury suffered by Great Britain is still the same, and if that power can find redress only from the United States, which are responsible for every integral part of the confederacy. Great Britain, it may be said, cannot negotiate with the individual states, and she cannot declare war against them and thus enforce redress, and that, therefore, the general government representing the states assumes all their liabilities, and must bear all the responsibilities which result from their acts in their sovereign capacity.

But although certain of the powers of sovereignty are reserved to the individual states, the entire department of foreign relations is entrusted to the general government, and on every subject relating to this department, the several states are entirely divested of power. The United States are responsible for all the acts of the states within the range of their proper jurisdiction. They are responsible for the safety of McLeod in the same manner as if his trial had taken place in the courts of the United States, because the proceedings against him were maintained by a branch of the sovereignty. But the peculiar liability of the government of the United States in the present case, as for an indignity, must depend upon the hostile intent; when it becomes there important to determine quo animo any measure was adopted, it is not sufficient to infer a hostile intent from the act itself of an individual state, because a state cannot,

« AnteriorContinuar »