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is not necessary for any purpose connected with this communication now to discuss. The views of this Government in relation to it are known to that of England; and we are expecting the answer of that Government to the communication which has been made to it.

“All that is intended to be said at present is, that, since the attack on the“ Caroline'is avowed as a national act, which may justify reprisals, or even general war, if the Government of the United States, in the judgment which it shall form of the transaction and of its own duty, should see fit so to decide, yet that it raises a question entirely public and political, a question between independent nations; and that individuals connected in it cannot be arrested and tried before the ordinary tribunals, as for the violation of municipal law. If the attack on the ‘Caroline' was unjustifiable, as this Government has asserted, the law which has been violated is the law of nations; and the redress which is to be sought is the redress authorized, in such cases, by the provisions of that code."

Mr. Webster, Sec. of State, to Mr. Crittenden, Ittorney-General, March

15, 1811, Webster's Works, VI. 262, 264. See, also, Bancroft's

Seward, I. 111-116.
See Vattel, Book III. ch. ii. $ 187; Rutherforth, Book II. ch. ix. $ 18;

Burlamaqui, l'art IV. ch. iii. $$ 18, 19; Lawrence, Com. Sur. Droit
Int. III. 130; 18 Alb. L. J. 506; Ilall, Int. Law (4th ed.), 328 ;
Memoirs of J. Q. Adams, XI, 26 ; 4 Boston Law Rep. 169; Gould,
McLeod's Trial, pamph.; Neilson's ('hoate, 173-184; Am. Law Mag.

I. 348.
Halleck says: "As McLeod was acquitted on the trial, there was no

opportunity to obtain, by appeal to the Federal courts, an opinion of
the highest tribunal of the United States on this important question,
and the subsequent act of ('ongress has obviated all danger of the
recurrence of a similar case. The opinion of Mr. Justice Cowen,
however, seems not to have received the approbation of the best
judicial minds of his own State, and to have been very generally
condemned in other States and by the political authorities of the
Federal Government." And he goes on to say that " among Euro-
pean writers on public law there seems to be a very general unanim-
ity of opinion” sustaining Mr. Webster's view. But the act of Con-
gress which General Hallerk cites does not settle the law, but only
indicates a way in which such cases may be reached by the Federal

courts. (Int. Law, ed. 1861, 305, 306.)
Sir R. Phillimore appears to accept Mr. Webster's conclusions. (3 Int.

Law, 3d ed. 188.5, 60.)
Ilall cites Mr. Webster's conclusions without dissent, and declares that!

“when a state in the exercise of its right of self-preservation, does
acts of violence within the territory of a foreign state, while remain-
ing at peace with it, its agents cannot be tried for the murder of per-
sons killed by them, nor are they liable to a civil action in respect to
damages to property which they may have caused."

Mr. Calhoun, June 11, 1811, when the McLeod case was under discussion in the Senate, stated the position of the British Government

to be “ that where a government authorizes or approves of the act of an individual, it makes it the act of the government, and thereby exempts the individual from all responsibility to the injured country.” The position, as thus stated by him, Mr. Calhoun controverted. “ The laws of nations,” he said, " are but the laws of morals, as applicable to individuals, so far modified, and no further, as reason may make necessary in their application to nations. Now, there can be no doubt that the analogous rule, when applied to individuals, is, that both principal and agents, or, if you will, instruments, are responsible in criminal cases; directly the reverse of the rule on which the demand for the release of McLeod is made. ... Suppose, then, that the British, or any other government, in contemplation of war, should send out emissaries to blow up the fortifications erected, at such vast expense, for the defense of our great commercial marts,

.. would the production of the most authentic papers, signed by all the authorities of the British Government, make it a public transaction, and exempt the villains from all responsibility to our laws and tribunals? Or would that Government dare make a demand for their immediate release? Or, if made, would ours dare yield to it, and release them? ... But, setting aside all suppositious cases, I shall take one that actually occurred—that of the notorious Henry, employed by the colonial authority of Canada to tamper with a portion of our people, prior to the late war, with the intention of alienating them from their Government, and effecting a disunion in the event of hostilities. Suppose he had been detected and arrested for his treasonable conduct, and that the British Government had made the like demand for his release, on the ground that he was executing the orders of his Government, and was not, therefore, liable, personally or individually, to our laws and tribunals: I ask, would our Government be bound to comply with the demand?” Mr. Calhoun, after accepting the position taken by Mr. Webster, that the case was not one of war, proceeded to say that the attack on the Caroline was an invasion of the territorial sovereignty of the united States not justified by necessity, and that persons concerned in such attack were responsible to the State of New York for the wrong done by them in it.

('alhoun's Works, III. 618. In accord, Benton's Thirty Years' View, II.

434 et seq. ; Life and Letters of Francis Lieber, 149.

“ Then the violence and bad spirit displayed in America have produced no small consternation here, though everybody goes on saying that a war between the two countries and for so little cause is impossible. It does seem impossible, and the manifest interest of both nations is opposed to it; but when a country is so mob-governed as America, and the Executive is so destitute of power, there must be great danger. However, the general conviction is, that the present

exhibition of violence is attributable to the malignity of the outgoing party, which is desirous of embarrassing their successors, and casting on them the perils of a war or the odium of a reconciliation with this country, and strong hopes are entertained that the new Government will be too wise to fall into the snare that is laid for them, and strong enough to check and master the bad spirit which is rife in the Northern States. The real difficulty arises from the conviction here, that in the case of McLeod we are in the right, and the equally strong conviction there that we are not, and the actual doubt on which side the truth lies. Senior, whom I met the other day, expressed great uncertainty, and he proposes and has written to Government on the subject, that the question of international law shall be submitted to the decision of a German university—that of Berlin, he thinks, would be the best. This idea he submitted to Stevenson, who approved of it, but the great difficulty would be to agree upon a statement of facts. Yesterday Lord Lyndhurst was at the council office, talking over the matter with Sir Herbert Jenner and Justice Littledale, and he said it was very questionable if the Americans had not right on their side; and that he thought, in a similar case here, we should be obliged to try the man, and if convicted, nothing but a pardon could save him. These opinions, casting such serious doubts on the question of right, are at least enough to restrain indignation and beget caution."

Greville's Memoirs, second part, I. March 12, 1811, p. 383. “ Connected with these transactions there have also been circumstances, of which, I believe, it is generally admitted that Great Britain has had just ground to complain. Individuals have been made personally liable for acts done under the avowed authority of their Government; and there are now many brave men exposed to personal consequences for no other cause than having served their country. That this is.contrary to every principle of international law it is useless for me to insist. Indeed, it has been admitted by every authority of your Government; but, owing to a conflict of laws, difficulties have intervened, much to the regret of those authorities, in giving practical effect to these principles; and for these difficulties some remedy has been by all desired. It is no business of mine to enter upon the consideration of them, nor have I sufficient information for the purpose; but I trust you will excuse my addressing to you the inquiry, whether the Government of the United States is now in a condition to secure, in effect and in practice, the principle, which has never been denied in argument, that individuals acting under legitimate authority are not personally responsible for executing the orders of their government? That the power, when it exists, will be used on every fit occasion, I am well assured; and I am bound to admit that, looking through the voluminous correspondence concerning these transactions, there appears no indisposition with any of the authorities of the Federal Government, under its several administrations, to do justice in this respect in as far as their means and powers would allow."

Lord Ashburton, British plenipo., to Mr. Webster, Sec. of State, July 28,

1842, Webster's Works, VI. 294, 300.

* This Government has admitted that, for an act committed by the command of his sovereign, jure belli, an individual cannot be responsible in the ordinary courts of another state. It would regard it as a high indignity if a citizen of its own, acting under its authority and by its special command, in such cases were held to answer in a municipal tribunal, and to undergo punishment, as if the behest of his government were no defence or protection to him.

“But your lordship is aware that, in regular constitutional governments, persons arrested on charges of high crimes can only be discharged by some judicial proceeding. is so in England; it is so in the colonies and provinces of England. The forms of judicial proceeding differ in different countries, being more rapid in some and more dilatory in others; and, it may be added, generally more dilatory, or at least more cautious, in cases affecting life, in governments of a strictly limited than in those of a more unlimited character. It was a subject of regret that the release of McLeod was so long delayed. A State court, and that not of the highest jurisdiction, decided that, on summary application, embarrassed, as it would appear, by technical difficulties, he could not be released by that court. His discharge shortly afterward by a jury, to whom he preferred to submit his case, rendered unnecessary the further prosecution of the legal question. It is for the Congress of the United States, whose attention has been called to the subject, to say what further provision ought to be made to expedite proceedings in such cases; and, in answer to your lordship's question toward the close of your note, I have to say that the Government of the United States holds itself, not only fully disposed, but fully competent, to carry into practice every principle which it avows or acknowledges, and to fulfill every duty and obligations which it owes to foreign governments, their citizens or subjects."

Mr. Webster, Sec. of State, to Lord Ashburton, British plen., Aug 6, 1812,

Webster's Works, VI. 301, 302–303.
See Mr. Webster's speech in the Senate, April 6 and 7, 1816, Webster's

Works, V. 123 et seq.
See, also, Mr. Olney, Sec. of State, to Mr. Thomas, min. to Venezuela,

June 25, 1896, directing the latter to urge unofficially the release of
the British surveyor, Harris, who had been arrested by the Venezue.
lan authorities on territory claimed by Venezuela. “ He acted under
orders," said Mr. Olney ; "any settlement should be between two ́goy-
ernments." (MS. Inst. Venez. IV. 425.)

A claim for indemnity, preferred by McLeod before the mixed commission

under the treaty of Feb. 8, 1853, was dismissed on the ground that the entire incident was disposed of by the correspondence between Mr. Webster and Lord Ashburton. (Moore, Int. Arbitrations, III. 2419 et seq.)

By the act of Congress approved Aug. 29, 1842, and since embodied in sec. 753, Rev. Stat., the United States courts, in view of the difficulty encountered in the McLeod case, were empowered to issue a writ of habeas corpus, in the case of a prisoner in jail," where he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof; or is in custody in violation of the Constitution or of a law or treaty of the United States; or, being a subject or citizen of a foreign state, and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, or order, or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations."

The obvious effect of this act is to bring the prisoner into the custody of the Federal courts, but it does not prescribe what the decision of those courts upon a particular application may be.

Early in 1892 a revolution was begun in Venezuela, under the lead of General Crespo, against the government of President Palacio. August 8, 1892, an engagement took place at Buena Vista, and on the 13th of the month the victorious revolutionary forces entered Bolivar under the command of General Hernandez, who assumed command of the city as civil and military chief, filling all the local offices which had been vacated by their incumbents. October 6, 1892, the revolutionary forces took possession of Caracas, and on the 23d of the month the government of General Crespo was formally recognized by the United States as the legitimate Government of Venezuela. After the entry of General Hernandez into Bolivar, George F. Inderhill, a citizen of the United States, who had constructed and was in charge of the waterworks of the city, besides carrying on a machinery repair business, applied to him as commanding officer for a passport to leave the city. Hernandez refused to grant this request, as well as similar ones subsequently made, until October 18, 1892, when Underhill obtained a passport and left the country. Subsequently Ilernandez, being in the State of New York, was sued by Underhill for damages for detention, caused by the refusal of the passport, for alleged confinement in his own house, and for certain alleged arrests and affronts by soldiers of the revolutionary army. On the trial of the case in circuit court of the United States for the

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