government, the United States accepted it as satisfactory and allowed the matter to drop.1

§ 83. McLeod's connection with the "Caroline"; his arrest by New York State.-Some time after the destruction of the Caroline, Alexander McLeod, a subject of Great Britain, was arrested by the State of New York on the charge that he had been engaged in the Caroline transaction and had committed murder within the jurisdiction of the State of New York. He was indicted, tried and ultimately acquitted. Pending his trial, a writ of habeas corpus was applied for on the ground that he was engaged in a governmental act and was not therefore amenable to the local jurisdiction of the State Courts of New York or even those of the United States, as the matter was in course of adjustment by diplomatic departments of the two governments. The State court dismissed the writ and remanded McLeod for trial. Judge Cowen rendered an opinion, in which he asserted that the State of New York had jurisdiction, notwithstanding the matter was the subject of diplomatic discussion between the two countries. In that respect he said :1

"But it is said of the case at bar, here is more than a mere approval by the adverse government, that an explanation has been demanded by the secretary of state; and the British ambassador has insisted on McLeod's release, and counsel claim for the joint diplomacy of the United States and Eng§ 82.

The most complete account of the Caroline and McLeod affairs will be found in Wharton's International Digest, § 21, vol. I., and §350, vol. III. Citations were there given of all public documents, correspondence and decisions.

§ 83.

1 Judge Cowen's decision including the extract here quoted from his opinion has been severely criticised. Wharton's Digest in section 350 says: "As to McLeod's case, Mr. Webster, in his speech in the Senate on the treaty of Washington (April 6, 1846) said: '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 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.' In a note it is added that the opinion had been reviewed by Judge Tallmadge, of New York City, and that of this review Chief Justice Spencer said that 'it refutes and overthrows the opinion most amply,' and that Chancellor Kent said, 'It is conclusive at every point. "

land some such effect upon the power of this court as a certiorari from us would have upon a county court of general sessions. It was spoken of as incompatible with a judicial proceeding against McLeod in this state; as a suit actually pending between two nations, wherein the action of the general government comes in collision with, and supersedes

our own.

"To such an objection the answer is quite obvious. Diplomacy is not a judicial, but executive function; and the objection would come with the same force whether it were urged against proceeding in a court of this state, or the United States. Whether an actual exertion of the treatymaking power, by the President and Senate, or any power delegated to congress by the federal constitution, could work the consequences contended for, we are not called upon to inquire whether the executive of the nation, (supposing the case to belong to the national court,) or the executive of this state might not pardon the prisoner, or direct a nolle prosequi to be entered, are considerations with which we have nothing to do.

"The executive power is a constitutional department in this, as in every well organized government, entirely distinct from the judicial. And that would be so, were the national government blotted out, and the state of New York left to take its place as an independent nation.

"Not only are our constitutions entirely explicit in leaving the trial of crimes exclusively in the hands of the judiciary: but neither in the nature of things, nor in sound policy, can it be confided to the executive power. That can never act upon the individual offender; but only by requisition on the foreign government; and in the instance before us, it has no power even to enquire whether it be true that McLeod has personally violated the criminal laws of this state. It has charge of the question in its national aspect only. It must rely on accidental information, and may place the whole question on diplomatic considerations. These may be entirely wide either of the fact or the law as it stands between this state and the accused. The whole may turn on questions of national honor, national strength, the comparative value of national intercourse, or even a point of etiquette.

"Upon the principle contended for, 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.2"

§ 84. Great Britain's position expressed by Mr. Fox.While the trial of McLeod was pending the British government made a demand upon the State Department for his release. To this Mr. Forsyth, who was then Secretary of State, replied that the matter was within the jurisdiction of the State of New York, and that the judicial action of that State, under all the circumstances, was proper.

Mr. Fox, the then accredited minister of Great Britain to Washington, was not contented with this, and on March 12, 1841, before the trial of McLeod and after Mr. Webster had become Secretary of State, he delivered a further protest against the continuance of the trial in which he expressed the views of his government in regard to the national responsibility for all acts in violation of treaty or national rights committed by any of the State governments. In the course of his letter he said:

"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

2 People vs. McLeod, N. Y. Su- | pp. 598, 599, COWEN, J. preme Ct. 1841, 25 Wendell, 483,

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 each 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."

§ 85. Mr. Webster's Reply.-Mr. Webster's reply rather evades the subject of federal responsibility for acts of states; in the course of it, however, he says:

"Soon after the date of Mr. Fox's note, an instruction was

$84.

1 Wharton's Digest, § 21, for citations. See also 25 Wendell, 491,

p. 508, where correspondence in full is printed as a note.

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. None is either so high or so low as to escape from its authority, in cases to which its • rules and principles apply.

"This department has been regularly informed by his excellency the Governor of the state of New York, that the chief justice of that state was assigned to preside at the hearing and trial of McLeod's case, but that, owing to some error or mistake in the process of summoning the jury, the hearing was necessarily deferred. The President regrets this occurrence, as he has a desire for a speedy disposition of the subject. The counsel for McLeod have requested authentic evidence of the avowal by the British government, of the attack on and destruction of the Caroline,' as acts done under its authority, and such evidence will be furnished to them by this department.

"It is understood that the indictment has been removed into the supreme court of the state, by the proper proceedings for that purpose, and that it is now competent for McLeod, by the ordinary process of habeas corpus, to bring his case for hearing before that tribunal.

"The undersigned hardly needs to assure Mr. Fox, that a tribunal so eminently distinguished for ability and learning as the supreme court of the state of New York, may be safely relied upon for the just and impartial administration of the law in this as well as in other cases; and the undersigned repeats the expression of the desire of this government that no delay may be suffered to take place in these proceedings which can be avoided. Of this desire, Mr.