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from the sovereign, and her answer would be to the offer to negotiate in regard to the violation of territory, that this country had already prejudged the question, and that it was therefore incapable of being made the subject of negotiation.
But when the government of the United States disclaimed the intention of punishing the agents of the government for the offence of the sovereign, and renewed the demand for explanation and indemnity on Great Britain, holding the nation alone responsible, an entirely different state of things was established. As the wrong of the British government and not of her subaltern, it was worthy of the vengeance of the United States — Dignus vindice nodus. And, now, if the government of Great Britain finds that the expedition, set on foot against a power at peace with her by subordinate colonial authorities, was conceived in hot blood and executed with rash weapons, she may without dishonor make the amends worthy of a great nation and a just people.
It would have been impossible for her to abandon those who had acted under her commands, or to suffer any question in regard to the justice of the expedition, whilst the United States consented to the detention of McLeod. But after protection was secured to the individuals composing the expedition (and there cannot be a doubt of their ultimate protection by the United States), the justice of the enterprise might be considered on the part of the government, and any concession which the British government may now make, any indemnification which the circumstances of the case may require, may be yielded without dishonor, although it could not without disgrace have failed to secure the protection of those subjects, who acted under her authority even in the execution of an enterprise which was acknowledged to be unjust.
This is the great advantage of the new turn given to affairs, by the government of the United States. We have not merely found a responsible principal, capable of atoning for past injuries and of securing the country against future aggressions, but war is not now unavoidable, negotiation is not precluded, the government is not de barred, as at one time it would seem to have been, by a false position, from appealing to those principles of right on the true
point in controversy, which no country can at the present day disregard, without forfeiting its standing among the nations of the earth.
If the United States had persisted in the claim of right to punish McLeod on a criminal indictment, such criminal proceedings would per se have constituted an act of hostility against Great Britain ; so that the negotiations which were in progress on the boundary question, and many other subjects which have been long in dispute between the two governments, would at once have been terminated, and the country engaged in war on a collateral issue.
We now proceed to consider the question in other relations. The United States have yielded to the demand of Great Britain for the discharge of her subject, and have taken all proper measures to procure his release by the state of New York.
McLeod, failing however to obtain his liberty by any of the modes resorted to on his behalf, sued out a writ of habeas corpus returnable to the supreme court of the state. That court has decided that he must be remanded, and that the trial on the indictment must proceed.
The result at which the court arrived seems to us unavoidable, on the ex parte application, for a reason urged with great ability by the attorney general of the state, that the court could not know that the accused had not passed beyond the line of authority assumed by Great Britain ; but from the opinion of Mr. Justice Cowen, which covers the whole ground in question, we must respectfully dissent.
Mr. Justice Cowen, in his opinion, says, “ England then could legally impart no protection to her subjects concerned in the destruction of the Caroline, either as a party to any war, to any act of public jurisdiction exercised by way of defence, or sending her servants into a territory at peace. That her act was one of mere arbitrary usurpation, was not denied on the argument, nor has this, that I am aware, been denied by any one except England herself. I should not therefore have examined the nature of the transaction to any considerable extent, had it not been necessary to see whether it was of a character belonging to the law of war
or peace. I am entirely satisfied it belongs to the latter ; that there is nothing in the case, except a body of men without color of authority, bearing muskets, and doing the deed of arson and death ; that it is impossible even for diplomatic ingenuity to make it a case of legitimate war, or that it can plausibly claim to come within any law of war, public, private, or mixed.” Now, could the learned judge fail to discern, that if this ground is taken and persisted in by the state of New York, she affirms her entire independence as a distinct sovereignty, and withdraws the whole subject from the decision of the federal government? And yet Great Britain could not be permitted to entertain any negotiations with the state of New York, though a sovereign state.
It is for the federal government and not for the state of New York or her courts of justice, to determine whether England is at war with this country, or could “impart any protection to her subjects concerned in the destruction of the Caroline."
We take the liberty to suggest, for the consideration of the learned judge, the doctrine of lord Ellenborough, 15 East's Rep. 81, adopted by him in another part of his opinion. “I agree," said his lordship, “ with the master of the rolls, in the case of the Pelican, that it belongs to the government of the country to determine in what relation of peace or war any other country stands towards it ; and that it would be unsafe for courts of justice to take upon them without that authority, to decide upon those relations. But when the crown has decided upon the relations of peace or war in which another country stands to this, there is an end of the question.” If the states of this union have parted with any branch of their sovereignty, it is that with which they have so fully invested the federal government in the conduct of foreign relations. It belongs to the federal government to determine in what relations of peace or war any other country stands towards it, and it would be unsafe for the courts of justice of the several states to take upon them, without that authority, to decide upon those relations. We presume it would not be contended, that if the United States should by a solemn treaty recognise the right which Great Britain claimed to make the incursion, or if they
should engage to deliver up McLeod, or to do any other lawful act in the premises, that the state of New York and her courts of law were not bound as by a law of the land ; but the action of the executive of the United States is not conclusive merely in the treaty-making powers of the general government. The rights of sovereign states and their relations with each other do not depend upon written treaties alone. The executive of the United States is bound not only to execute treaties with foreign powers, but to fulfil those duties which grow out of common right.
Those duties were not created by a compact, which, under the peculiar constitution of the United States, required the concurrent action of the executive and one branch of the legislature.
The executive is bound to decide upon the extent of such duties, and to fulfil them in the same manner as those which result from treaties. In the case of the Caroline, Great Britain claimed certain rights as a power carrying on war with individual outlaws. Among others, she claimed the right of following her assailants beyond the frontier of the United States. She rests her plea upon the ground of necessity, and cites from the American code of diplomacy as a stringent authority, the case where general Jackson violated the Spanish territories, as one that was fully sustained and justified by the United States.
Now, whether our government were wise in consenting to negotiate with Great Britain at all, after the aggression, is quite immaterial to the present point. Having entered into negotiations, all hostile proceedings on the part of the state of New York are precluded. The executive may decide, and it is his duty to decide, upon the claims of right made by Great Britain, and his decision is final, and a recognition of the existing law of the land, which is as binding upon courts and upon the several states as a treaty could be. It is binding, not simply because it is a construction of law, but because it imparts a right to the foreign power. If, therefore, when Mr. Fox made a demand on the United States for the dis. charge of McLeod, the president had reviewed the whole case of the burning of the Caroline, and decided that the incursion was lawful for reasons of necessity, that decision would have been con.
clusive on this nation. A consequence of that decision must have been the discharge of McLeod. If instructions had been sent to the American minister in London to withdraw the demand for redress, and to concede the justice of the enterprise, we presume that McLeod would at once have been liberated by the authorities of New York. If our conclusion is just on this subject, and if it was competent to the executive of the United States to decide the whole question as one of admitted right, a fortiori, the executive might decide, and his decision would be an imperative construction of law, that McLeod was not personally responsible for executing the commands of his sovereign.
But the views of Mr. Justice Cowen are entirely different. We trust they are peculiar to himself, and they are certainly gratuitous, for the exigencies of the case did not demand an expression of them. He does not admit, that if a government negotiates respecting any transaction, and “is led” to the approval of it, that the nation, thus giving its sanction to the act, is precluded from treating the transaction as a crime.
“Upon the principle contended for," says the learned judge every accusation which has been drawn in question by the executive power of two nations, can be adjusted by negotiation or war only. The individual accused must go free, no matter to what extent his case may have been misapprehended by either power. No matter how criminal he may have been, if his country, though acting on false representations of the case, may have been led to approve of the transaction, and negotiate concerning it, the demands of criminal justice are at an end." “ Under circumstances, the executive power might, in the exercise of its discretion, be bound to disregard a venial offence as no breach of treaty, which the judiciary would be obliged to punish as a breach of international law."
He expresses the opinion, also, that the executive of the United States had no power to inquire whether McLeod had personally violated the criminal laws of the state of New York, that it had charge of the question in its national aspects only, and that diplomatic considerations may be entirely wide, either of the fact or of the law, as it stands between the state and the accused.