« AnteriorContinuar »
in regard to foreign relations, represent the general government. If the United States disclaim a measure of hostility, they may be liable for the wrong inflicted, but not as for a measure of retaliation.
In almost every instance of aggression and wrong by one nation against another, the injury may properly be presented in the ordinary course of negotiation to the party guilty of the aggression. There is at least one case, however, where this can never be done, though formal war may not have been declared. Where a nation in the pursuit of a claim of belligerent right is primâ facie guilty of a wrong, and the injured nation, instead of offering to negotiate, retaliates for the supposed wrong by another aggression, in which the latter nation persists, there can be no negotiation, for war substantially exists. It is impossible to make the case stated clearer, than by citing the instance which has actually occurred. The government of Great Britain authorized a detachment of its army, under a claim of belligerent right, to follow the Caroline into the waters of the United States and there destroy her. It was prepared to justify the act by the plea of necessity, which would, if allowed, show that the individuals engaged in the enterprise were guilty of no crime, but the state of New York, without entertaining the claim of right, and the plea of justification took the ground, that there could be no such justification of an act, which was primâ facie a crime. If this ground had been taken by the general government, actual war would have existed because it precluded an inquiry into the claim of right. It would have been an election to consider the supposed wrong as a cause of war and to enter upon acts of retaliation, after which the two countries could only negotiate as for a restoration of peace. Negotiations upon the footing of existing relations of peace would be absurd, and incompatible with acts amounting to retaliatory hostilities, This consequence only results from the consideration, that
the proceedings which have this effect are on behalf of the government supposing itself wronged, against an individual, who, being a party to that wrong, represented the government under whose authority he acted. They are equivalent to an act of war, because they are retaliatory upon acts of quasi hostility on the part of Great Britain, which were primâ facie unjustifiable, and made it in some measure necessary for the United States to elect, whether to meet the aggression by peaceful or hostile measures. If a British subject had been arrested by the authorities of the state of New York for obedience to the lawful commands of Great Britain within her own dominions, no such result would have followed, because it would not have been in itself an act of war. The wrong to Great Britain, perhaps, would be greater than in the case which has occurred, but the character of that wrong would be different. Though indefensible, it might be a proper subject for negotiation during the existence of relations of amity, and not have the effect of creating a state of war. It is not then the nature or degree of the wrong done by one nation to another, which would determine their existing relations. The greatest might not create actual war, the least might constitute, in other circumstances, a state of existing hostilities. It is therefore apparent that the design, the motive, and the intention of governments, are to be regarded in considering the effect of their acts of aggression. The great question then is, have the United States, by any act of retaliation, engaged in measures inconsistent with relations of peace with Great Britain. And, certainly, if any measures of hostility have been pursued by way of retribution for the burning of the Caroline, they have not been adopted by the government of the United States. The government has never sanctioned criminal proceedings against individuals concerned in that enterprise, nor sought by the punishment of the subject to obtain satisfaction from the sovereign. Nor has the govern
ment been content simply to repel the conclusion, that the United States were a party to the criminal proceedings against the individual supposed to have been engaged in that affair, but it has resorted to all suitable measures to prevent the occurrence of the wrong. McLeod has been detained and tried not only without the concurrence of the government, but after the decision of the executive of the United States, that his entire immunity was a right resulting from the existing relations between the United States and Great Britain, and notwithstanding such efforts for his release as were competent to the general government, following the prompt admission that the claim for his discharge ought to be admitted. How then can it be said that the United States are a party to these hostile proceedings ? Simply upon the ground, we presume, that the United States are to be regarded as identical with the sovereignty of the state of New York, because criminal proceedings on behalf of the commonwealth could not have been instituted in any other tribunal. But it is by no means true that the state of New York is capable of establishing a state of war between the United States and any foreign power, except at the election of the latter. If that state had marched an army into Canada by way of retaliation for the violation of her territory, such a belligerent act would not of necessity have involved the United States in war. To prevent that result, it would only have been necessary for the government to disavow the acts of the state, and then the hostilities of the state would have been viewed in no other or higher light, than the military operations of those unauthorized brigands, whose warlike aggressions clothe them with none of the rights and privileges belonging to regular warfare.
But if it is admitted that the United States are not, by the measures of the state of New York, involved in immediate hostilities, still the question may arise whether it is not the duty of the general government to prevent such
measures on the part of the individual states as are in their nature hostile, and whether, by a neglect to coerce obedience to the government, the United States are not as a nation involved in the hostile measures set on foot by an individual state. We think it must be conceded that the United States are, as a government, fully responsible for the wrongs done by the individual states, whether they are in a state of revolt, or refuse to yield to the just claims of a foreign power, but the question which we are now considering is not whether the United States are eventually liable for the acts of the states, whether they are bound to indemnify Great Britain for the unjust detention of her subject, which must be admitted, nor whether Great Britain may not at her election treat this injury as a cause of war, which must also be conceded, but whether the injury was in itself an act of war, an indignity which admitted of no peaceful redress, but produced a state of things incompatible with the existence of negotiations.
There are several causes which may operate to prevent the government of the United States from exercising its authority, in restraint of hostile proceedings against a foreign power by an individual state. The state may not only be in a condition of revolt, but the officers of the state may refuse to execute the duties which the constitution of the United States has devolved upon them, and which by their oath of office they are bound to perform, or the constitution of the United States may have failed to provide for the intervention of the general government, or for a resort to its tribunals. In each of these cases, notwithstanding the eventual responsibility of the general government, it may be entirely impossible for it to withhold an individual state from hostile measures against a foreign power. The hostile intention, however, is absent, for it cannot be in ferred that the government is a party to acts which it disavows, but has no legitimate means of preventing.
In the case of McLeod, the executive of the state of New York failed to perform his constitutional duties, and to yield to the claims of Great Britain, the justice of which the executive of the United States had in its appropriate functions, acknowledged. The executive of the state, in this case, grossly violated its duties and endangered the peace of the two countries, but the executive of the United States had no constitutional wer to interpose directly, and a direct and immediate intervention was the only mode in which proper redress could be given, because the detention for a period, however short, was in violation of right.
It might seldom happen, perhaps, under a monarchical government, that there could be a constitutional difficulty in the way of any intervention of the sovereign in the tribunals of the kingdom, which his foreign relations might require, and yet the action of the government might be obstructed, and the fulfilment of its duties embarrassed, in the same manner as has happened to the government of the United States. There may be stated not only the case of a disputed succession to the crown and the occupation of a province by a rival claimant of the throne, and the case where parts of the kingdom are in a state of revolt, so that protection could not be given to the subjects of a foreign country within those districts, but the officers of the state might also refuse to perform their duties even under a form of government like that of Great Britain, and thus embarrass the foreign relations of the kingdom as effectually as has happened in the instance which we have noticed. If the judges of Westminster hall should refuse on a writ of habeas corpus, to discharge a subject of a foreign state unjustly detained without color of right, in violation of the duties of the government to his sovereign, they could be reached, if at all, only by the slow process of impeachment, a remedy as tardy and perhaps as certainly ineffectual, as such a proceeding would be against any of the executive