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DOCUMENTS FROM THE DEPARTMENT OF STATE.
Mr. Fox to Mr. Webster.
WASHINGTON, March 12, 1841.
The undersigned, her Britannic Majesty's envoy extraordinary and minister plenipotentiary, is instructed by his Government to make the following official communication to the Government of the United States:
Her Majesty's Government have had under their consideration the correspondence which took place at Washington in December last, between the United States Secretary of State, Mr. Forsyth, and the undersigned, comprising two official letters from the undersigned to Mr. Forsyth, dated the 13th and 29th of December, and two official letters from Mr. Forsyth to the undersigned, dated the 26th and 30th of the same month, upon the subject of the arrest and imprisonment of Mr. Alexander McLeod, of Upper Canada, by the authorities of the State of New York, upon a pretended charge of arson and murder, as having been engaged in the capture and destruction of the steamboat Caroline, on the 29th of December, 1837.
The undersigned is directed, in the first place, to make known to the Government of the United States that her Majesty's Government entirely approve of the course pursued by the undersigned in that correspondence, and of the language adopted by him in the official letters above mentioned.
And the undersigned is now instructed again to demand from the Government of the United States, formally, in the name of the British Government, the immediate release of Mr. Alexander McLeod.
The grounds upon which the British Government make this demand upon the Government of the United States are these: that the transaction on account of which Mr. McLeod has been arrested, and is to be put upon his trial, was a transaction of a public character, planned and executed by persons duly empowered by her Majesty's colonial authorities to take any steps and to do any acts which might be necessary for the defence of her Majesty's territories and for the protection of her Majesty's subjects; and that consequently those subjects of her Majesty who engaged in that transaction were performing an act of public duty for which they cannot be made personally and individually answerable to the laws and tribunals of any foreign country.
The transaction in question may have been, as her Majesty's Government are of opinion that it was, a justifiable employment of force for the purpose of defending the British territory from the unprovoked attack of a band of British rebels and American pirates, who, having been permitted to arm and organize themselves within the territory of the United States, had actually invaded and occupied a portion of the territory of her Majesty; or it may have been, as alleged by Mr. Forsyth, in his note to the undersigned of the 26th of December, "a most unjustifiable invasion in time of peace of the territory of the United States." But this is a question.
especially of a political and international kind, which can be discussed and settled only between the two Governments, and which the courts of justice of the State of New York cannot by possibility have any means of judging or any right of deciding.
It would be contrary to the universal practice of civilized nations to fix individual responsibility upon persons who with the sanction or by the orders of the constituted authorities of a State engaged in military or naval enterprizes in their country's cause; and it is obvious that the introduction of such a principle would aggravate beyond measure the miseries, and would frightfully increase the demoralizing effects of war, by mixing up with national exasperation the ferocity of personal passions, and the cruelty and bitterness of individual revenge.
Her Majesty's Government cannot believe that the Government of the United States can really intend to set an example so fraught with evil to the community of nations, and the direct tendency of which must be to bring back into the practice of modern war, atrocities which civilization and Christianity have long since banished.
Neither can her Majesty's Government admit for a moment the validity of the doctrine advanced by Mr. Forsyth, that the Federal Government of the United States has no power to interfere in the matter in question, and that the decision thereof must rest solely and entirely with the State of New York.
With the particulars of the internal compact which may exist between the several States that compose the Union, foreign Powers have nothing to do the relations of foreign Powers are with the aggregate Union; that Union is to them represented by the Federal Government; and of that Union the Federal Government is to them the only organ. Therefore, when a foreign Power has redress to demand for a wrong done to it by any State of the Union, it is to the Federal Government, and not to the separate State, that such power must look for redress for that wrong. And such foreign Power cannot admit the plea that the separate State is an independent body over which the Federal Government has no control. It is obvious that such a doctrine, if admitted, would at once go to a dissolution of the Union as far as its relations with foreign Powers are concerned; and that foreign Powers, in such case, instead of accrediting diplomatic agents to the Federal Government, would send such agents not to that Government, but to the Government of each separate State; and would make their relations of peace and war with each State depend upon the result of their separate intercourse with such State, without reference to the relations they might have with the rest.
Her Majesty's Government apprehend that the above is not the conclusion at which the Government of the United States intend to arrive; yet such is the conclusion to which the arguments that have been advanced by Mr. Forsyth necessarily lead.
But, be that as it may, her. Majesty's Government formally demand. upon the grounds already stated, the immediate release of Mr. McLeod; and her Majesty's Government entreat the President of the United States to take into his most deliberate consideration the serious nature of the consequences which must ensue from a rejection of this demand.
The United States Government will perceive that, in demanding Mr. McLeod's release, her Majesty's Government argue upon the assumption that he was one of the persons engaged in the capture of the steamboat
"Caroline;" but her Majesty's Government have the strongest reasons for being convinced that Mr. McLeod was not, in fact, engaged in that transaction; and the undersigned is hercupon instructed to say that, although the circumstance itself makes no difference in the political and international question at issue, and although her Majesty's Government do not demand Mr. McLeod's release upon the ground that he was not concerned in the capture of the "Caroline," but upon the ground that the capture of the "Caroline" was a transaction of a public character, for which the persons engaged in it cannot incur private and personal responsibility; yet the Government of the United States must not disguise from themselves that the fact that Mr. McLeod was not engaged in the transaction must necessarily tend greatly to inflame that national resentment which any harm that shall be suffered by Mr. McLeod at the hands of the authorities of the State of New York, will infallibly excite throughout the whole of the British empire.
The undersigned, in addressing the present official communication, by order of his Government, to Mr. Webster, Secretary of State of the United States, has the honor to offer to him the assurance of his distinguished con sideration.
H. S. FOX
The Hon. Daniel Webster,
Mr. Webster to Mr. Fox.
DEPARTMENT OF STATE,
Washington, April 24, 1841.
The undersigned, Secretary of State of the United States, has the honor to inform Mr. Fox, envoy extraordinary and minister plenipotentiary of her Britannic Majesty, that his note of the 12th of March was received and laid before the President.
Circumstances well known to Mr. Fox have necessarily delayed, for some days, the consideration of that note.
The undersigned has the honor now to say, that it has been fully considered, and that he has been directed by the President to address to Mr. Fox the following reply.
Mr. Fox informs the Government of the United States, that he is instructed to make known to it, that the Government of her Majesty entirely approve the course pursued by him, in his correspondence with Mr. Forsyth, in December last, and the language adopted by him on that occasion; and that that Government have instructed him "again to demand from the Government of the United States, formally, in the name of the British Government, the immediate release of Mr. Alexander McLeod;" that "the grounds upon which the British Government make this demand upon the Government of the United States, are these: that the transaction on account of which Mr. McLeod has been arrested and is to be put upon his trial, was a transaction of a public character, planned and executed by persons duly empowered by her Majesty's colonial authorities to take any steps and to do any acts which might be necessary for the defence of her
Majesty's territories, and for the protection of her Majesty's subjects; and that consequently those subjects of her Majesty who engaged in that transaction, were performing an act of public duty for which they cannot be made personally and individually answerable to the laws and tribunals of any foreign country."
The President is not certain that he understands, precisely, the meaning intended by her Majesty's Government to be conveyed, by the foregoing instruction.
This doubt has occasioned, with the President, some hesitation; but he inclines to take it for granted that the main purpose of the instruction was, to cause it to be signified to the Government of the United States, that the attack on the steamboat "Caroline" was an act of public force, done by the British colonial authorities, and fully recognised by the Queen's Government at home; and that, consequently, no individual concerned in that transaction can, according to the just principle of the laws of nations, be held personally answerable in the ordinary courts of law, as for a private offence; and that upon this avowal of her Majesty's Government Alexander McLeod, now imprisoned, on an indictment for murder, alleged to have been committed in that attack, ought to be released, by such proceedings as are usual and are suitable to the case.
The President adopts the conclusion, that nothing more than this could have been intended to be expressed, from the consideration, that her Majesty's Government must be fully aware, that in the United States, as in England, persons confined under judicial process can be released from that confinement only by judicial process. In neither country, as the undersigned supposes, can the arm of the Executive power interfere, directly or forcibly, to release or deliver the prisoner. His discharge must be sought in a manner conformable to the principles of law, and the proceedings of courts of judicature. If an indictment, like that which has been found against Alexander McLeod, and under circumstances like those which belong to his case, were pending against an individual in one of the courts of England, there is no doubt that the law officer of the crown might enter a nolle prosequi, or that the prisoner might cause himself to be brought up on habeas corpus, and discharged, if his ground of discharge should be adjudged sufficient, or that he might prove the same facts and insist on the same defence or exemption on his trial.
All these are legal modes of proceeding, well known to the laws and practice of both countries. But the undersigned does not suppose, that if such a case were to arise in England, the power of the Executive Government could be exerted in any more direct manner. Even in the case of embassadors, and other public ministers, whose right of exemption from arrest is personal, requiring no fact to be ascertained but the mere fact of diplomatic character, and to arrest whom is sometimes made a highly penal offence, if the arrest be actually made, it must be discharged by application to the courts of law.
It is understood that Alexander McLeod is holden as well on civil as on criminal process, for acts alleged to have been done by him, in the attack on the "Caroline;" and his defence, or ground of acquittal, must be the same in both cases. And this strongly illustrates, as the undersigned conceives, the propriety of the foregoing observations; since it is quite clear that the Executive Government cannot interfere to arrest a civil suit, between private parties, in any stage of its progress; but that such suit must
go on to its regular judicial termination. If, therefore, any course, different from such as have been now mentioned, was in contemplation of her Majesty's Government, something would seem to have been expected, from the Government of the United States, as little conformable to the laws and usages of the English Government as to those of the United States, and to which this Government cannot accede.
The Government of the United States, therefore, acting upon the presumption, which it readily adopted, that nothing extraordinary or unusual was expected or requested of it, decided, on the reception of Mr. Fox's note, to take such measures as the occasion and its own duty appeared to require.
In his note to Mr. Fox of the 26th of December last, Mr. Forsyth, the Secretary of State of the United States, observes, that "if the destruction of the Caroline' was a public act, of persons in her Majesty's service, obeying the order of their superior authorities, this fact has not been before communicated to the Government of the United States by a person authorized to make the admission; and it will be for the court which has taken cognizance of the offence with which Mr. McLeod is charged to decide upon its validity when legally established before it." And adds, "the President deems this to be a proper occasion to remind the Government of her Britannic Majesty, that the case of the Caroline' has been long since brought to the attention of her Majesty's principal Secretary of State for Foreign Affairs; who, up to this day, has not communicated its decision thereupon. It is hoped that the Government of her Majesty will perceive the importance of no longer leaving the. Government of the United States uninformed of its views and intentions upon a subject, which has naturally produced much exasperation, and which has led to such grave consequences."
The communication of the fact that the destruction of the "Caroline" was an act of public force, by the British authorities, being formally made to the Government of the United States, by Mr. Fox's note, the case assumes a decided aspect.
The Government of the United States entertains no doubt that, after this avowal of the transaction, as a public transaction, authorized and undertaken by the British authorities, individuals concerned in it ought not, by the principles of public law, and the general usage of civilized States, to be holden personally responsible in the ordinary tribunals of law, for their participation in it. And the President presumes that it can hardly be necessary to say that the American people, not distrustful of their ability to redress public wrongs, by public means, cannot desire the punishment of individuals, when the act complained of is declared to have been an act of the Government itself.
Soon after the date of Mr. Fox's note, an instruction was given to the Attorney General of the United States, from this Department, by direction of the President, which fully sets forth the opinions of this Government on the subject of McLeod's imprisonment, a copy of which instruction the undersigned has the honor herewith to enclose.
The indictment against McLeod is pending in a State court, but his rights, whatever they may be, are no less safe, it is to be presumed, than if he were holden to answer in one of the courts of this Government.
He demands immunity from personal responsibility by virtue of the law of nations, and that law in civilized States is to be respected in all courts.