[1841]

THE MCLEOD CASE.

65

Of course, the English government meant that McLeod ought to be released by such proceedings as are usual, and suitable to the case. For both in the U. S. and in England persons confined under a judicial process can be released only by judicial process. In a case like McLeod's in England, the prosecuting att'y might (1) enter "a nolle prosequi"; or (2) the prisoner might have himself brought up on "Habeas Corpus," and discharged, if the ground for his detention should be adjudged insufficient; or (3) he might prove the same facts (as would give him a Habeas Corpus), and insist on the same defense or exemption on his trial. In this country, he continued, there are TWO WAYS of arresting proceedings of the court. (1) By "nolle prosequi." By this in a criminal (only) case, the prosecuting att'y states that the prosecution does not desire to proceed, and so the case is dropped. McLeod's case, however, was in part criminal—the killing of the man—and in part civil-the destruction of the Caroline; and Webster doubted that the government could arrest proceedings in a civil suit. (2) Habeas Corpus. This was used in McLeod's case; and, moreover, Webster (Works, VI. 67) sent the Att'y-General to N. Y. to watch the case, with instructions that, if the court did not accept McLeod's plea (the responsibility of the British government), he should take the prisoner by a writ of error before the supreme court of the U. S. (which could be done only after a final decision by the State supreme court).

By a writ of Habeas Corpus McLeod was taken before the supreme court of the State. Judge Towne decided. that McLeod's trial must proceed, because there was at the time no war, and could be none unless declared by either of the two governments. This act, therefore, was

66

TOWNE VS. TALMADGE.

[1841]

the act of an individual; and, since the crime was committed in N. Y., it was a crime of an individual amenable to the laws of that State. This decision was ably reviewed (Wendell's Reports, XXVI. Appendix) by Judge Talmadge of the Superior Court of New York; and this review was supported by Webster, Kent, Chief Justice Spencer, and most of the other eminent jurists and statesmen.

Oct.

Nevertheless, the N. Y. Legislature ordered 1841 a special term of the circuit court, at Utica, to try the case. The trial lasted a week. McLeod proved an alibi, and the jury said "not guilty." Had he been convicted, there would have been a direct issue between a State and the U. S., and probably war with England.

This affair showed plainly the necessity of some final reference from State courts to U. S. courts of questions involving foreign relations. Hence Congress 1843 passed the following ACT: Justices of the SuAug. 29 preme Court or the judge of any district court of the U. S. in which a prisoner is confined, should have power to grant writs of Habeas Corpus where subjects of foreign States are in custody of the U. S., for any act committed under the alleged authority of that foreign State. If, on hearing the case, the prisoner is found to be entitled to discharge upon this alleged ground, the justice shall forthwith discharge him. If this ground is not substantiated, the prisoner shall be remanded—PROVIDED always that, from any decision of the said judge, an appeal may be made to the U. S. Circuit Court in that district, and thence to the Supreme Court of the U. S. Then, until final judgment and until after discharge, proceedings in the State courts are null and void. (Stat. at L., V. 539; Webster's Works, VI. 267.)

[1842]

VIOLATION OF NEUTRALITY.

67

The question of violation of neutral territory by the burning of the Caroline was little referred to in the McLeod case, and was not settled by the Treaty of '42; but, afterwards, it was settled by a correspondence between Webster and Ashburton. Benton (II. 434), overlooking the wrong done England by our citizens crossing the border, called it "a disgraceful negotiation."

Webster (Works, VI. 261) says: To justify the destruction of the Caroline upon neutral territory, "it will be necessary for that government (England) to show a necessity of self defense, instant, overwhelming, leaving no choice of means and no moment for consideration— now a fixed principle of international law.

Ashburton, in reply, admits this principle, but asserts that "it must be so for the shortest possible period during the continuance of an admitted, overwhelming, necessity, and strictly confined within the limits imposed by that necessity." And to show that there was such a necessity in the case of the Caroline, he asserts that Capt. Drew was sent with a force of men expecting to find the boat at Navy Island; but, finding it on the American side, and having no time for deliberation because of the threatened invasion, they were justified in destroying the boat-the means of accomplishing that invasion. (Webster, VI. Works, 296–301.) This claim of the necessity of self defense was a good one, and was admitted by Webster, the Pres., and most of the eminent jurists. (Ibid. 301-3; Dana's Wheaton, 526-7.)

Neither was the question of the Impressment of American seamen mentioned in the treaty of '42. Benton (II. 430) says: "I want Mr. Jefferson's act-rejection of any

treaty with Great Britain that does not renounce 1806 impressment." Webster (Works, V. 145-6) says: "Fifty years of experience . . . and a careful reconsidera

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IMPRESSMENT

SLAVE TRADE.

[1842]

tion have fully convinced this government that this is not only the simplest and best, but the only, rule which can be adopted and observed, consistently with the rights and honor of the U. S. and the security of her citizens, (It) will hereafter be the principle maintained by this government. In every regularly documented American merchant-vessel, the crew who navigate it will find their protection in the flag which is over them” - also a principle of international law. England claimed that when one was once a British citizen he remained so forever. The war of 1812 arose out of this question. Ashburton would not admit this last principle (Webster's Works, VI. 326–8); and not till 1856 did England

change its view. Three years later, however, 1859 England passed a law providing that its citizens might transfer their allegiance. (Ibid.; Dana's Wheaton, 175, N. 67.)

For the suppression of the slave trade, however, the Ashburton treaty provided. The right of search was not given up.. (Webster's Works, V. 143.) Each country was to keep a squadron on the African coast to keep their respective citizens from the slave-trade. England claimed that the right of visitation and that of search were different; that the former was for the purpose of finding out to what nation a ship belonged, and did not include the right of search. But the U. S., remembering the war of 1812, would not allow the vessel to be stopped at all and, therefore, saw no distinction between the two terms. International law is now against any distinction. This claim was made in order to aid the suppression of the slave-trade, which England most desired. For, ordinarily, in time of peace the right of search was not allowed.

[1844]

THE ELECTION OF 1844.

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XVIII.

THE ELECTION OF 1844.

Parallel Young, 799-814; Chase's Hist. of the Polk Administration, 1-29; Gillet, 231-3; Bryant and Gay, IV. 368; Von Holst, II. 515-47, 657-714: Sargeant, II. 220-53; Greeley, I. 161-9; Benton, II. 625-6.

Apr. 20

In the presidential election of 1844, the Democratic candidates were Jas. K. Polk of Tenn. and G. M. Dallas of Penn. Until the publication of his 1844 letter to W. H. Hammet (Notes, 28), opposing the immediate annexation of Texas, Van Buren was the choice of the people and of the party; and most of the delegates to the Democratic convention, held at Baltimore, May 27, had been instructed to vote for him. But the party leaders had decided to make immediate annexation the main issue of the campaign, and, after this letter appeared, they tried to have the instructions to the delegates changed. Still Van Buren received a large vote on the first ballot. Thereupon Saunders of N. C. moved to adopt the rules of the national convention of '32, the principle one of which was that two-thirds of all the votes should be requisite for the nomination. When Benton asserted that this rule was undemocratic and that the majority should rule, it was answered that the greater endorsement from the delegates a candidate should receive, the greater would be his chances of success; and in this way the great States could not control the nomination.

The adoption of this rule by 148 to 118 secured the defeat of Van Buren. No one received two-thirds of