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contrary to the law of nations. McLeod was a soldier acting
under the authority of his government, and obeying orders which
he was bound to obey. It was absurd to say, that a soldier,
who must obey orders or be shot, may still be hanged if he does
obey them. Was the President of the United States to turn
aside from facing the British lion, and fall on a lamb ? Was he
to quail before the crown of England, and take vengeance on a
private soldier? No, Sir, that was not in character for William
Henry Harrison. He held the British government responsible.



24 DEFENCE OF THE TREATY OF WASHINGTON

He soon died, to the great grief of his country, but in the time
of his successor that responsibility was justly appealed to, and
satisfactorily fulfilled.

. Mr. Fox s letter, written under instructions from Lord Palm-
ferston, was a little peremptory, and some expressions were re
garded as not quite courteous and conciliatory. This caused
some hesitation ; but General Harrison said that he would not
cavil at phrases, since, in the main, the British complaint was
well founded, and we ought at once to do what we could to
place ourselves right.

Sir, the members of the administration were all of one mind
on this occasion. General Harrison, himself a man of large
general reading and long experience, was decidedly of opinion
that McLeod could not be lawfully held to answer in the courts
of New York for what had been done by him as a soldier,
under superior orders. All the members of the administration
were of the same opinion, without doubt or hesitation. I may
without impropriety say, that Mr. Crittenden, Mr. Ewing, Mr.
Bell, Mr. Badger, and Mr. Granger were not all likely to come
to an erroneous conclusion, on this question of public law, after
they had given it full consideration and examination.

Mr. Fox s letter was answered ; and from that answer I will
read an extract.

" Mr. Fox informs the government of the United States that he is in
structed to make known to it that the government of her Majesty entire
ly approve the course pursued by him in his correspondence with Mr.
Forsyth in December last, and the language adopted by him on that oc
casion ; and that the 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 transac
tion 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 authori
ties 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.



DEFENCE OF THE TREATY OF WASHINGTON. 135

41 The President is not certain that he understands precisely the mean
ing intended by her Majesty s government to be conveyed by the fore
going 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 recognized by the
Queen s government at home ; and that, consequently, no individual
concerned in that transaction can, according to the just principles 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 Majes
ty 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 adopted 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 circum
stances like those which belong to his case, were pending against an in
dividual 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 gov
ernment could be exerted in any more direct manner.

" Even in the case of ambassadors and other public ministers, whose
right to exemption from arrest is personal, requiring no fact to be ascer
tained 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
11*



126 DEFENCE OF THE TREATY OF WASHINGTON.

attack on the Caroline, and his defence or ground of acquittal must be
the same in both cases. And this strongly illustrates, as the under
signed 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 con
templation of her Majesty s government, something would seem to have
been expected from the government of the United States as little con
formable 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 is already adopted, that nothing extraordinary or un
usual 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 ap
peared 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 de
struction 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 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 Secre
tary of State for Foreign Affairs, who, up to this day, has not commu
nicated its decision thereupon. It is hoped that the government of her
Majesty will perceive the importance of no longer leaving the govern
ment of the United States uninformed of its views arid 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 different aspect.

" The government of the United States entertains no doubt, that, after
this avowal of the transaction as a public transaction, authorized and un
dertaken 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



DEFENCE OF THE TREATY OF WASHINGTON. 127

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 the 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 di
rection of the President, which fully sets forth the opinions of this gov
ernment on the subject of Mr. McLeod s imprisonment ; a copy of
which instruction the undersigned has the honor herewith to inclose.

" 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 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. None is either so high or so low as to escape from its au
thority in cases to which its rules and principles apply."

And now, Sir, who will deny that this decision was entirely
correct ? Who will deny that this arrest of McLeod, and this
threatening to hang him, were just cause of offence to the British
government? Sir, what should we ourselves have thought, in a
like case ? If United States troops, by the lawful authority of
their government, were ordered to pass over the line of boun
dary for any purpose, retaliation, reprisal, fresh pursuit of an
enemy, or any thing else, and the government of the territory in
vaded, not bringing our government to account, but sleeping
three years over the affront, should then snatch up one of our
citizens found in its jurisdiction, and who had been one of the
force, and proceed to try, condemn, and execute him, Sir, would
not the whole country have risen up like one man ? Should we
have submitted to it for a moment? Suppose that now, by
order of the President, and in conformity to law, an American
army should enter Canada, or Oregon, for any purpose which
the government of the United States thought just and was
ready to defend, and the British government, turning away from
demanding responsibility or satisfaction from us, should seize
an individual soldier, try him, convict him, and execute him.
Should we not declare war at once, or make war ? Would this
be submitted to for a moment? Is there a man, with an Amer
ican heart in his bosom, who would remain silent, in the face
of such an outrage on public law and such an insult to the



128 DEFENCE OF THE TREATY OF WASHINGTON.

flag and sovereignty of his country ? Who would endure that
an American soldier, acting in obedience to lawful authority,
as a part of a public military force, should be arrested, tried,
and executed as a private murderer? Sir, if we had received
such an insult, and atonement had not been instantly made, we
should have avenged it at any expense of treasure and of blood.
A manly feeling of honor and character, therefore, a sense of
justice, and respect for the opinion of the civilized world, a
conviction of what would have been our own conduct in a
like case, all called on General Harrison to do exactly what
he did.

England had assumed her proper responsibility, and what was
it ? She had made an aggression upon the United States by
entering her territory for a belligerent purpose. She had in
vaded the sanctity of our territorial rights. As to the mere de
struction of the vessel, if perpetrated on the Canadian side, it
would have been quite justifiable. The persons engaged in that
vessel were, it is to be remembered, violating the laws of their
own country, as well as the law of nations ; some of them suf
fered for that offence, and I wish all had suffered.

Mr. Allen here desired to know where the proof was of the fact that
the Caroline was so engaged ? Was there any record of the fact ?

Yes, there is proof, abundant proof. The fact that the vessel
was so engaged was, I believe, pretty well proved on the trial
and conviction of Van Rensselaer. But, besides, there is abun
dant proof in the Department of State, in the evidence taken
in Canada by the authorities there, and sent to Great Britain,
and which could be confirmed by any body who lived any
where from Buffalo down to Schlosser. It was proved by
the res gestce. What were the condition and conduct of the
Caroline ? Mr. Stevenson, making the best case he could for

O

the United States, said that she was cleared out at Buffalo, in
the latter part of December, to ply between Buffalo and Schlos
ser, on the same side of the river, a few miles below. Lord
Palmerston, with his usual sarcasm, and with more than a
usual occasion for the application of that sarcasm, said, " It
was very true she was cleared out; but Mr. Stevenson forgot
that she was also cut out of the ice in which she had been
laid up for the winter, and that, in departing from Buffalo, in-



DEFENCE OF THE TREATY OF WASHINGTON. 129

stead of going down to Schlosscr, she went down to Navy
Island " ; and his Lordship asked, " What new outbreak of
traffic made it necessary to have a steamboat plying, in the
depth of winter, between Buffalo and Schlosser, when exactly
between those two places, on the shore, there was a very conven
ient railroad ? " I will most respectfully suggest all this to the
consideration of the chairman of the Committee on Foreign Re
lations. And, as further evidence, I will state the entire omis
sion of the government of the United States, during the whole
of Mr. Van Buren s administration, to make any demand for
reparation for the property destroyed. So far as I remember,
such a suggestion was never made. But one thing I do very
well remember, and that is, that a person who had some interest
in the property came to the city of Washington, and thought of
making an application to the government, in the time of Mr.
Van Buren, for indemnity. He was told that the sooner he
shut his mouth on that subject the better, for he himself, know
ing that the purpose to which the vessel was to be applied came
within the purview of the statutes of the United States against
fitting out hostile expeditions against countries with which the
United States were at peace, was liable to prosecution ; and he
ever afterwards, profiting by this friendly admonition, held his
peace. That is another piece of evidence which I respectfully
submit to the consideration of the chairman of the Committee
on Foreign Relations.

Well, Sir, McLeod s case went on in the court of New York,
and I was utterly surprised at the decision of that court on the
habeas corpus. On the peril and at the risk of my professional
reputation, I now say, that the opinion of the court of New
York in that case is not a respectable opinion, either on account
of the result at which it arrives, or the reasoning on which it
proceeds.*

McLeod was tried and acquitted ; there being no proof that
he had killed Durfree. Congress afterwards passed an act, that,

* This opinion has been ably and learnedly reviewed by Judge Tallmadge, of
the Superior Court of the City of New York. Of this review the late Chief Jus
tice Spencer says : " It refutes and overthrows the opinion most amply." Chan
cellor Kent says of it : " It is conclusive upon every point. I should have been
proud if I had been the author of it." Th is opinion of the Supreme Court of
New York is not likely to be received, at home or abroad, as the American un
derstanding of an important principle of public law.



130 DEFENCE OF THE TREATY OF WASHINGTON.

if such cases should arise hereafter, they should be immediately
transferred to the courts of the United States. That was a
necessary and a proper law. It was requisite, in order to enable
the government of the United States to maintain the peace of
the country. It was perfectly constitutional ; because it is a just
and important principle, quite a fundamental principle, indeed,
that the judicial power of the general government should be co
extensive with its legislative and executive powers. When the
authority and duty of this government are to be judicially dis
cussed and decided, that decision must be in the courts of the
United States, or else the tie which holds the government to
gether would become a band of straw. McLeod s acquittal put
an end to all question concerning his case ; and Congress hav
ing passed a law providing for such cases in future, it only re
mained that a proper explanation and apology, all that a nation
of high honor could ask, or a nation of high honor could give,
should be obtained for the violation of territorial sovereignty ;
and that was obtained. It was not obtained in Mr. Van
Buren s time, but obtained, concurrently with the settlement of
other questions, in 1842.*

Before Mr. Fox s letter was answered, Sir, the President had
directed the Attorney- General to proceed to New York, with
copies of the official correspondence, and with instructions to
signify to the Governor of New York the judgment which had
been formed here.f These instructions have been referred to,
and they are public. The moment was critical. A mob had
arrested judicial proceedings on the frontier. The trial of Mc-
Leod was expected to come on immediately at Lockport ; and
what would be the fate of the prisoner, between the opinions
entertained inside of the court-house and lawless violence with
out, no one could foresee. The instructions were in the spirit
of the answer to Mr. Fox s letter. And I now call on the mem
ber from New York to furnish authority for his charge, made in
his speech the other day, that the government of the United
States had "interfered, directly and palpably," with the proceed
ings of the courts of New York. There is no authority, not a
particle, for any such statement. All that was done was made

* See the letter of Mr. Webster to Lord Ashburton, of the 27th of July,
1842, and Lord Ashburton s answer, in the sixth volume,
f See the instructions to Mr. Crittenden, in the sixth volume.



DEFENCE OF THE TREATY OF WASHINGTON. 131

public. He has no other authority for what he said than the
public papers ; they do not bear him out. To say, on the
ground of what is publicly known, that the government of the
United States interfered, " directly and palpably," with the pro
ceedings in New York, is wholly to misconceive and mistake
the transaction. There was no demand for the delivery of
McLeod to the United States ; there was no attempt to arrest
the proceedings of the New York court. Mr. Fox was told that
these proceedings must go on, until they were judicially termi
nated; that McLeod was in confinement, by judicial process,
and could only be released by judicial process under the same
authority. All this is plainly stated in the instructions to Mr.
Crittenden, and no man who reads that paper can fall into any
mistake about it. There was no "direct and palpable" inter
ference with the New York courts, nor any interference at all.
The Governor of New York did not think there was, nor did
any body else ever think there was, who informed himself of the
facts of the case.

Mr. President, the honorable Senator from Ohio* bestowed, I
believe, a very considerable degree of attention upon topics con
nected with the treaty of Washington. It so happened that
my engagements did not permit me to be in the Senate during
the delivery of any considerable portion of that speech. I was
present occasionally, however, and heard some parts of it. I
have not been able to find any particular account of the honor
able member s remarks. In the only printed speech by him on
which I have been able to lay my hands, it is said that he took
occasion to speak, in general terms, of various topics, enumerat
ing them, embraced in the treaty of 1842. As I have not seen
those remarks, I shall not now undertake to make any further
allusion to them. If I should happen to see them hereafter, so
far as I may believe that they have not been answered by what
I have already said, or may now say, I may, perhaps, deem it
worth while to embrace some opportunity of taking such notice
of them as they may seem to require.

MR. ALLEN. I will state, for the satisfaction of the Senator, the gen
eral substance of what I said on the subject. If he so desires, I will
now proceed to do so.

* Mr. Allen.



132 DEFENCE OF THE TREATY OF WASHINGTON.

I think that, upon the whole, when the gentleman shall fur
nish the public with a copy of his speech, I may, perhaps, have
a more proper opportunity to pay attention to it, especially as I
have to say something of other speeches, which may at present
occupy as much of the time of the Senate as can well be de
voted to this subject.

The honorable member from New York, nearest the chair,*
made a speech on this subject, of which I propose to take some
notice. Before doing so I shall take notice of the " extracts
from the speech of Mr. C. J. Ingersoll, in the House of Repre
sentatives," which he has borrowed and incorporated into his
speech by way of note.

Mr. Dickinson explained that he was not responsible for the statement
in the note to his speech, and that he did not make the extracts from Mr.
IngersolPs speech a part of his own. Mr. Webster proceeded.

The passage quoted by the gentleman from New York from
the speech of Mr. C. J. Ingersoll is as follows :

" Out of this controversy arose the arrest of Alexander McLeod.
What het intended to state now consisted of facts not yet generally
known, but which would soon be made known, for they were in progress
of publication, and he had received them in no confidence, from the
best authority. When McLeod was arrested, General Harrison had just
died, and Mr. Tyler was not yet at home as his successor. Mr. W r eb-
ster, who was de facto the administration, Mr. Webster wrote to the
Governor of New York, with his own hand, a letter, and sent it by ex
press, marked l private, in which the Governor was told that he must
release McLeod, or see the magnificent commercial emporium laid in
ashes. The brilliant description given by the gentleman from Virginia
of the prospective destruction of that city in the case of a war was, in
a measure, anticipated on this occasion. McLeod must be released,
said the Secretary of State, or New York must be laid in ashes. The
Governor asked when this would be done. The reply was, forthwith.
Do you not see coming on the waves of the sea the Paixhan guns ? and
if McLeod be not released New York will be destroyed. But, said the
Governor, the power of pardon is vested in me, and even if he be con
victed, he may be pardoned. O, no, said the Secretary, if you even try
him, you will bring destruction on yourselves."

Notwithstanding the circumstantial detail of facts in the fore*
* Mr. Dickinson. f Mr. Ingersoll.



DEFENCE OF THE TREATY OF WASHINGTON. 133

going passage, they are wholly without foundation. It is im
plied that a correspondence consisting of an exchange of letters
took place between me and the Governor of New York. A sin
gle letter only, which I shall presently read to the Senate, was
written by me ; and the entire detail of the supposed contents of
the correspondence ; the conflagration " of the commercial empo
rium," the " Paixhan guns," the assertion ascribed to me, that
" McLeod must be released or New York must be laid in ashes,"
the repetition of this remark in a subsequent letter, the intima
tion of the Governor of New York that he had the pardoning
power, and my alleged reply, that, "if you even try McLeod,



Online LibraryDaniel WebsterThe works of Daniel Webster (Volume 05) → online text (page 13 of 53)