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§ 86. Final disposition of the case; McLeod's acquittal. -After McLeod had been remanded the trial proceeded and resulted in a verdict of acquittal, after which he was released. While this prevented all further complications, it left undecided the important questions as to whether or not the Federal Government could have interfered and taken McLeod from the jurisdiction of the State courts, and either tried him under some federal statute, or released him in accordance with diplomatic arrangements made between the two countries.

§ 87. Federal statutes passed to meet similar cases.-At that time there were no federal statutes under which the United States could prevent the trial, in State courts, of McLeod or other persons similarly indicted; in order that the recurrence of such controversies might be prevented thereafter, and that the action of a single State might not jeopardize the foreign relations of the entire country, the act of August 29, 1842,' was passed by Congress under which fed$ 85.

11 Wharton's Digest, § 21, for citation. See also, 25 Wendell, 491, 512, 513, where correspondence is printed in full as a note.

$87.

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,

1 Sec. 752. The several justices and judges of the said [Federal] | privilege, protection, or exempCourts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty.

"Sec. 753. The writ of habeas corpus shall in no case extend to a prisoner in jail, unless when 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

tion 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; or unless it is necessary to bring the prisoner into court to testify.

"Sec. 754. Application for writ of habeas corpus shall be made to the court, or justice, or judge authorized to issue the same, by complaint in writing, signed by the person for whose relief it is intended, setting forth the facts concerning the detention of the party restrained, in whose custody he is

eral courts have jurisdiction of such matters. That statute has since been incorporated in sections 752-4 of the Revised Statutes of the United States. The United States courts are thus enabled to investigate the cause of detention of any person held under a State indictment for offences similar to those with which McLeod was charged, and which are really not so much violations of the sovereignty of any particular State as they are of the sovereignty of the United States. The right of the United States to intervene in such cases is apparent when it is considered that if any international complications had arisen owing to the McLeod incident, they would have. affected not only the State of New York, but the entire country. Had Great Britain seen fit to resort to arms to redress the injuries which she claimed her citizen has sustained, she would not necessarily have limited her attacks to the northern frontier of New York State, but could have commenced hostilities wherever she saw fit, at any point on land or sea; nor would the State of New York have been able, nor would she have been permitted, to meet these attacks solely with her own State militia. The entire naval and military forces of the United States, as a nation, would necessarily have been called into action in order to repel the invasion by, or the hostile attacks of, a foreign State, on any part of the domain of the United States, State or national.

§ 88. Anti-Spanish Riots in New Orleans of 1851.-In August, 1851, a mob in New Orleans demolished the building in which the office of the Spanish consul was located. At the same time attacks were made upon coffee houses and cigar shops kept by Spanish subjects. American citizens were involved in the loss which, in the aggregate, was large. The supposed cause of the mob was the intelligence of the execution of 50 young Americans in Havana and the banishment to Spanish mines of nearly 200 citizens of the United States. The victims were all members of the abortive Lopez expedition against Cuba. In consequence of these depre

detained, and by virtue of what 5 U. S. Stat. at Large, p. 539; 29 claim or authority, if known. The Aug. 1842, c. 257, s. 1; see also facts set forth in the complaint Wharton's Int. Law Dig. vol. 1, shall be verified by the oath of the section 21. person making the application.”

dations of the mob upon the property of the Spanish consul, as well as against Spanish subjects, the Minister of Spain demanded indemnification for all the losses, both official and personal. Mr. Webster admitted that the Spanish consul was entitled to indemnity, and made a proposition as to how the indignity offered to the representative of the Spanish government should be accorded; but when pressed by the Spanish Minister to afford an indemnity to Spanish subjects who were injured by the mob, in common with American citizens, Mr. Webster declined to accede to the demand, and gave as his reasons that as many American citizens had suffered equal loss, the private individuals, Spanish subjects, coming voluntarily to reside in the United States had no cause of complaint, for they were protected by the same laws and the same administration of law as native born citizens of this country.1

§ 88.

rests with the government, according to the general principles of law, public faith, and the obligation of treaties.

1 The history of the anti-Spanish riots in New Orleans will be found in the Foreign Relations Reports for 1851-2, and rehearsed in the "Mr. Calderon thinks that the Reports for 1891, during the Mafia enormity of this act of popular Riot correspondence. The follow-violence is heightened by its insult ing is an extract from a note sent to the flag of Spain. The Governby Daniel Webster, Secretary of ment of the United States would State, to Mr. Calderon, the Spanish earnestly deprecate any indignity Minister, November 13, 1851: offered in this country, in time of peace, to the flag of a nation so an

as Spain. No wonder that Mr. Calderon should be proud, and that all patriotic Spaniards of this generation should be proud of the Castilian ensign which in times past has been reared so high and waved so often over fields of acknowledged and distinguished valor; and which has floated, also, without stain, on all seas, and especially, in early days, on those seas which washed the shores of all the Indies.

"The assembling of mobs happens in all countries; popular vio-cient, so respectable, so renowned lences occasionally break out everywhere, setting law at defiance, trampling on the rights of citizens and private men; and sometimes on those of public officers, and the agents of foreign governments, especially entitled to protection. In these cases the public faith and national honor require, not only that such outrages should be disavowed, but also that the perpetrators of them should be punished, whenever it is possible to bring them to justice; and further, that full satisfaction should be made in cases in which a duty to that effect

"Mr. Calderon may be assured that the government of the United States does not and cannot desire

§ 89. Mr. Webster's position.-The above section is quoted almost verbatim from a résumé of the occurrences of 1851,

"Mr. Calderon expresses the opinion that not only ought indem

to witness the desecration or deg-| erroneous, that they had been exeredation of the national banner of cuted without any trial whatever, his country. It appears, however, caused an excitement in the city, that in point of fact no flag was the outbreak of which the public actually flying or publicly exhib- authorities were unable for the ited when the outrage took place; moment to prevent or control. but this can make no difference in regard to the real nature of the offence or its enormity. The per-nification to be made to Mr. Lasons composing the mob knew that borde, her Catholic Majesty's conthey were offering insult and injury sul, for injury and loss of property, to an officer of Her Catholic Majesty, but that reparation is due also from residing in the United States under the government of the United States the sanction of laws and treaties; to those Spaniards residing in New and, therefore, their conduct ad- Orleans whose property was injured mits of no justification. Neverthe- or destroyed by the mob; and inless, Mr. Calderon and his gov-timates that such reparation had ernment are aware that recent been verbally promised to him. intelligence had been received from The undersigned sincerely regrets Havana, not a little calculated to that any misapprehension should excite popular feeling in a great have grown up out of any conversacity, and to lead to popular ex- tion between Mr. Calderon and officesses. If this be no justification, cers of this government on this as it certainly is none, it may still unfortunate and unpleasant affair; be taken into view, and regarded but while this government has manas showing that the outrage, how-ifested a willingness and determinever flagrant, was committed in the heat of blood, and not in pursuance of any predetermined plan or purpose of injury or insult.

ation to perform every duty which one friendly nation has a right to expect from another, in cases of this kind, it supposes that the "The people of the United States rights of the Spanish consul, a pubare accustomed, in all cases of al- lic officer residing here under the leged crime, to slow and cautious protection of the United States investigation and deliberate trial Government, are quite different before sentence of condemnation is from those of the Spanish subjects passed, however apparent or how-who have come into the country to ever enormous the imputed offence mingle with our own citizens, and may be. No wonder, therefore, here to pursue their private busithat the information of the execu- ness and objects. The former may tion, so soon after their arrest, of claim special indemnity; the latter the persons above referred to are entitled to such protection as most of whom were known in New is afforded to our own citizens. Orleans, and who were taken not "While, therefore, the losses of in Cuba, but at sea, endeavoring to individuals, private Spanish subescape from the island-should jects, are greatly to be regretted, have produced a belief, however yet it is understood that many

contained in a note written in 1891 by Mr. Blaine to the Marquis Imperiali, in regard to the Mafia riots, which will be referred to at a subsequent point in this chapter.1

Mr. Webster in 1851 took the position that the widows and children of the United States citizens who had lost their lives by mob violence could sue the leaders and members of the mob only in the courts of the State of Louisiana, while the widows and children of Spanish subjects had the right to sue each member of the mob, not only in the State courts, but also before the federal tribunals for the District of Louisiana; there was an attempt made to disclaim all responsibility American citizens suffered equal "In conclusion, the undersigned losses from the same cause. And these private individuals, subjects of her Catholic Majesty, coming voluntarily to reside in the United States, have certainly no cause of complaint, if they are protected by the same law and the same administration of law as native-born citizens of this country. They have, in fact, some advantages over citizens of the State in which they happen to be, inasmuch as they are enabled, until they become citizens themselves, to prosecute for any injuries done to their persons or property in the courts of the United States, or the State courts, at their election. The President is of opinion, as already stated, that for obvious reasons the case of the consul is different, and that the government of the United States should provide for Mr. Laborde a just indemnity; and a recommendation to that effect will be laid before Congress at an early period of its approaching session. This is all which it is in his power to do. The case may be a new one; but the President, being of opinion that Mr. Laborde ought to be indemnified, has not thought it necessary to search for precedents.

has to say, that if Mr. Laborde shall return to his post, or any other consul for New Orleans shall be appointed by her Catholic Majesty's Government, the officers of this government, resident in that city, will be instructed to receive and treat him with courtesy, and with a national salute to the flag of his ship, if he shall arrive in a Spanish vessel, as a demonstration of respect, such as may signify to him, and to his government, the sense entertained by the government of the United States of the gross injustice done his predecessor by a lawless mob, as well as the indignity and insult offered by it to a foreign State, with which the United States are, and wish ever to remain, on terms of the most respectful and pacific intercourse.

"The undersigned avails himself of this occasion to offer to Mr. Calderon renewed assurances of his most distinguished consideration." (Foreign Relations of the U. S., 1851-52, pp. 63-65.) See also 2 Wharton's Digest, § 226. $ 89.

1 See § 94, post, and extracts from Secretary Blaine's note in the footnote to that section.

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