CORRESPONDENCE BETWEEN MR. ROEBUCK AND COLONEL NAPIER ON THE M'LEOD
CASE.
[The following correspondence originated in a question which Co- lonel Napier asked Mr. Roebuck—whether the newspaper reports had not misrepresented his observations in the House of Commons upon the conduct of the American Government in relation to the proceed- ings against Mr. M'Leod
" London, 27th August 1841. " My dear Napier—No; the reporters are quite accurate this time ; but you do not, I think, attend to the words used—' the American Government.' The acts of the American Executive have been perfectly in rule ; and though the Cabinet of Mr. Tyler has chosen to adopt a course totally opposed to that .of Mr. Van Buren, there can be no fault found by our Government with either. Let me state the facts—you always bearing in mind that the American consti- tution has separated the judiciary entirely from, and made it independent of, even the Congress itself.
" The Caroline was burnt in the American territory. I am not now going Into the question whether this was a gross outrage on the law of nations or not. I think it was; but that point is not needed for my argument. The American Government complains of this to us; and gets no answer either avowing or dis- avowing the responsibility of that act. In the mean time, brLeod, is arrested; and then Mr. Fox applies for his release; and Mr. Forsyth says that he has no power to release bins—which was true, and that he had no official notice that the Government of England had avowed and taken upon itself the responsi- bility of the act.
" This neglect to answer such a demand on the part of the United States -Governmentjustifies this answer. Non constat that M'Leod did act under .his superior officer, by his commands, and with the sanction of the Crown. The British Government at length formally took upon itself the responsibility of the attack on the Caroline ; and then the Amencan Government (changed is the interval, however) has formally acknowledged the principle of interna- tional law laid down by the British Government, respecting the commands of the superior officer and the sanction of the Government being a complete pro- tection for all the individuals employed in the destruction of the Caroline. And the United States Government is now proceeding, by the mode which their -laws prescribe, to the release of M'Leod.
" But here begins the difficult part of the case; and all my questions relating to it have been shirked by Lord Palmerston, and the affair will by and by come -upon the English people with the effect of a clap of thunder; for in my heart I believe that the American Executive are wholly unable either legally or phy- sically to release M'Leod : and my reason for so believing is this —M'Leod is at present in the custody of the courts of the State of New York ; be will be tried by them; and his pardon and release will depend, not on the Executive of the United States, but of New York.
Suppose M'Leod convicted. The next step will be to move one of the Federal Courts for a mandamus to the State Court to send the whole proceed- ings by way of appeal to the Appellate Court of the United States. Now then begins the fight. The two great parties in America have on this very ground fought all their great party-fights. The Democratic party, with Jefferson, Madison, and Munroe, and others at their head, have strenuously contended for the exclusive power of the separate States, and, especially in criminal cases, for the exclusive jurisdiction of the States Courts. In a great cause in Virginia, a case occurred wherein the Federal Courts claimed Jurisdiction; the Virginian Courts refused obedience to the commands of the Federal Courts ; and the matter was very near coming to the arbitrement of blows, but Mr. Justice Marshall got rid of the case by a side-wind, and the matter dropped; the decision of the State Court, however, being affirmed. Suppose, then, the State Court refuse to obey the mandamus to remove the cause. What is to be done in that case ? The Executive must ask the Congress to take the matter in hand ; and Congress, I fear, is not very -likely to adopt the principles lately avowed by Mr. Webster. The authority of the great Democratic leaders is still immense ; and in this question of the exclusive jurisdiction of the State Courts, the feelings of the Democratic party are exceedingly excitable. Still the Executive, you see, in this case would be powerless ; and Lord Palmerston was very careful not to answer my -question, Whether the United States Government had declared itself willing and able to guarantee the safety and liberation of M'Leod?' "But suppose that the State Court obeys the Federal Court, and that the -case is removed: what if the Appellate Court affirms the judgment of the State Court ? can the American Executive in this case guarantee the safety of Mr. .111`Leod?—No; cer,ainly not. a Our law authorities say, that the mere trial of M'Leod after the acknow- ledgment on the part of the American Executive is an offence against the law of nations; and they complain of the peculiarity of the American con- stitution, which does not give the Executive power immediately to release him ; and they say that for the comity of nations, for the peace of the civilized world, it is necessary that such a power should be in the hands of the Ameri- can Government. On the other hand, the great law authorities of the United States deny the doctrine admitted by the President. They say, that there are cases of outrage against law and morality, which the sanction of no govern- ment can justify ; and this is one of tliern. You do not, for example, hang prisoners of war, but you hang a spy; and no protection or sanction on the part of a government is able to save a spy. So when two nations are at peace, a murder cannot be justified. Suppose England to send a secret agent to New York, giving him directions secretly to fire the town : he is caught, and produces his authority. In this case ought any avowal or sanction on the part of our Government to save him ? They say not ; and I confess I am much of their opinion. The reason of my mentioning this is to show you why I think there is great reason to be apprehensive of the result. I see no way for the American Executive to get out of the difficulty if the Judiciary go against them ; and I see great reason to believe that the Judiciary will deem the act of killing Durfee one that cannot be justified, and that the party killing cannot be protected by any commands or sanctions of our Government. But to re- turn to my first position. " The American Executive is in no way to blame. If any censure is to fall on any thing or person, it ought to be on the omission, now for the first time discovered, in the American constitution. The complication of the great ques- tion of international law respecting the protection that may be afforded to a sub- ject by the commands of his Sovereign, through the perplexing difficulties arising out of the peculiarities of the American constitution, is a serious evil ; one which our countrymen do not appreciate, and about which they are too apt to speak with all the arrogance which ignorance always produces. The settle- ment of the relative powers of the States Governments and that of the United States has been and ever will be the most difficult task for the statesmen of America. The difficulty met them at the outset of their existence as a nation ; and the wonder has ever been how it was possible for Washington and the men who acted with him so far to conciliate the jarring interests and feelings of separate States in 1783-84, as to produce so extraordinary, so wonderful a com- promise as the present constitution of America. Made at once, made to suit many prejudices and many interests, it necessarily contains faults, exhibits omissions of great moment ; but, nevertheless, possesses a vital power of amend- ment that must, I think, add to its gradual improvement. And the fanit which I have here pointed out will, among the rest, be soon quickly amended. In the mean time, I am anxious to prevent any outbreak on the part of our ignorant legislators, who know nothing of the difficulties I am speaking of, but who are quite ready for a row if every thing is not done to their liking at once and com- pletely. if we are calm, firm, and forbearing, I hope and trust that no harm may eventually happen ; but I cannot avoid perceiving that the American Executive has before it a very difficult and very dangerous obstacle to meet and conquer. We should do all that we can to assist them in their strait ; and not by hasty, rash, and harsh language, to obstruct, perhaps utterly frustrate their good intentions. " Yours most sincerely, " J. A. Roenrcit."
0 28th August 1841. " My dear Roebuck—Your view of the M‘Leorl, or rather of the American question, is clear enough as regards the General Government up to the point it has reached. No doubt the American Government has been, and is still ham- pered by great difficulties ; no doubt caution and forbearance are alike called for by reason and by humanity. But do not these difficulties spring from the ill-understood notions of liberty entertained by the Americans themselves ? They seem to imagine, that to do whatever is agreeable or profitable to them- selves is liberty, and make that word the justification of any wrong to others. But there are in justice and reason as solid grounds for restricting the liberty of nations for the benefit of the world at large, as there are for restricting the liberty of individuals for social good. If the States, repudiating the decision of national questions, do nevertheless assume exclusive powers when placed by their own acts in collision with foreign nations, they are de facto sovereign states, and their union must be considered a league of independent nations, offensive towards the rest of the world, as not holding themselves amenable to the common general law, offering no security for good behaviour, nor any fixed point upon which a suitor for national justice can take ground for negotiation. Such a league can only be upheld by force the Americans must abandon it, or bear the brunt of war, with the odium of being a barbarous community, whose destruction or subjection to civilized international customs is absolutely ne- cessary to the wellbeing of the world. For if their General Government is by the institutions of their country rendered powerless to amend wrongs to foreigners, they can only take rank with the barbarous Moorish piratical states. " There is, you say, an amending principle in the American constitution, which will, if we are firm and temperate, correct this anomaly. This is scarcely to be doubted, although as yet that vital principle has not been manifested; but to stimulate its action, a voluntary and complete apology should be offered by our Government fur the attack on the Caroline, which cannot be justified, though the provocation may be honestly pleaded. But if, meanwhile, the anomaly in the American constitution leads to the execution of M'Leod, is England to bear the insult ? Is she to proclaim herself no longer able or will- ing to protect her subjects from punishment when they have only obeyed her orders—lawful orders to them, though unlawful in their Government ? I can- not conceive a greater degradation. The transaction would be one of cowardly cruelty on the part of the Americans, of cowardly submission on the part of England. " The case of a spy or an incendiary is not, I think, in point. The spy goes disguised ; he takes advantage of the civilized hospitality of the enemy to mix among his people ; he lives with them ; he calls -himself their friend, a fellow subject, and de facto he is for the time being their fellow subject. He is then a traitor to them, and meets a traitor's death. The incendiary is in the same predicament. The law of nations in these cases is known and admitted with- out dispute. The spy or incendiary knows what he is going to do; he cannot be ordered on such a service ; he is only tempted; he knows what his fate will be if detected; he is paid accordingly, and never expects the protection of his Government. Moreover, in both cases the man is put to death, not for the acts of mischief he commits, but for his treason. For if an officer, clothed in uniform, and choosing to risk his life, enters an enemy's camp, and trusting to his address and boldness for impunity, discovers all the weak points, (I have known an example,) he cannot, if taken, be injured according to the laws of war, because he acts under lawful orders. Quarter may, indeed, be refused to him ; the right of refusing quarter being inherent to fighting men ; but he can- not he judicially executed. So a town or magazine may be set fire to by troops, be they few or many, stealthily or openly, provided they are in uniform ; nay, they need not be in uniform, provided they do not enter the precincts of the enemy's lines as friends ; and, however barbarous or unnecessary the act may be, it is one recognized by the laws of war; and the perpetrators, if acting under orders, cannot be legally made responsible when taken prisoners, though quarter may be refused to them. This is the case of the Caroline. " But both sides have put themselves so much in the wrong—the English Whig Government on one part, and the American people on the other—that it has become a Gordian knot only to be cut by the sword; that is, unless, what never happened yet, both sides agree to acknowledge their errors and make mutual amends. For if M'Leod is put to death, England must avenge the wrong or be degraded as a nation. And if the Americans, admitting the defect in their constitution, should proceed to remove it as offensive to civiliza- tion, that must take time; and England is dishonoured every hour that she permits one of her subjects to languish in prison, in constant fear of an iogno- minions death, because he obeyed his orders as a military man. If M'Leod bn acquitted—which will happen or not, it would appear, as the power of a certain faction predominates—his imprisonment and sufferings and trial will still remain an insult to England, and a violation of international law based on the assump- tion of a right of internal regulation at variance with common sense, because opposed to civilization. So also the affair of tbe Caroline will remain a viola- tion of international law on our part, mitigated, however, by the provocation. Amends may indeed be made to ISPLeod personally ; the faulty institutions of the Americans may be pleaded in apology to heal our wounded •honour ; and the correction of the defect will give weight to that apology and afford a secu- rity for the future.; but until the attack on the Caroline is atoned for, it can hardly be expected that the Americans will remedy their faulty institutions to Telieve England from the difficulty and disgrace brought upon her by the mis- conduct of her Canadian Government. War, therefore, 1 look upon as certain, sooner or later. Thanks to Lord John Russell and his celebrated Canadian resolutions !
Previous page
