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assertions, and the admission of his comrades, he was one of the foremost in that cruel work, and actually killed one of the * damned Yankees,' (to use his own words) with his own hands." - Mr. Benton's speech in Senate United States.
Now, sir, on these facts, which it warms one's American blood to recite, can this band of merciless desperadoes be liable to punishment under the laws of New York, where their crimes were perpetrated? To my mind, after the best examination I have been able to give to the subject, there can be but one response. McLeod, one of the perpetrators, is answerable, unless he can show that it was a public military expedition, set on foot by the proper authorities in Canada, with or without a previous declaration of war against this country, commanding the specific things to be done for which he now stands indicted in the State of New York. I repeat-commanding the specific things to be done for which he is indicted.
In time of open public war, such authority would be presumed. The courts would look to the public acts, proclamations, declarations of war, and other proceedings of notoriety; and out of these would find immunity to the individuals engaged, whilst the Government would retaliate on the enemy by like incursions into their territory. But in time of profound peace, with all subsisting treaty stipulations of amity in full force, no such presumptions can be resorted to. Express, positive, and unequivocal commands from competent authority are all that can justify him. Were such commands given? The whole case turns upon that fact. The case will turn on that fact in the courts of New York. The prisoner must come forward with the orders of Sir Francis Head, I believe then Governor General of Canada. If not direct from him, he must show order from some military commander who issued them, and who received his orders from the supreme Colonial Government. Further back than that it would not be necessary, as I conceive, to trace the orders. If such orders covered and embraced the specific act for which he was indicted, the courts of New York will and ought to discharge him. But if the orders were general, “ to break up the establishment at Navy Island,” that would not do; or if they were “to destroy any vessel conveythe protection of her Majesty's subjects,” such orders would not do. They would not justify an invasion of our territory, nor the burning of a vessel lying peaceably moored to our own shores, with no military stores, and with no troops for transportation. No prior use of the boat and no prior conduct of her crew could justify the attack, because not essential “to the defence of British territory nor of British subjects.” It might be an act of revenge for the past, but it could not be necessary for protection in future.
In any event, capture without burning, capture without the murder of her crew, would surely have been all that could have been necessary. But, sir, when only ordered to defend British territory, they come at the dead hour of midnight and invade American soil ; when only ordered to protect British subjects, they shoot, and stab, and murder American citizensinstead, at most, of taking and towing the vessel over to the British side, and detaining her until the insurgents were expelled from the island, they tow her out to the middle of the river, set fire to her, and thus commit to the flames the remaining portion of her crew, sending them and the blazing wreck over the mighty falls of the Niagara. Sir, place yourself in that dark and bloody night, on the shore of that river, standing proudly as you would do on American ground. In the stillness of that night, listen to the landing of hostile soldiers on our shores, to the attack on one of our vessels; hear the groans of our dying countrymen: a moment after, look at that blazing sheet of fire, slowly moving on to the dreadful cataract, till at last it makes its awful leap on the floods below.
Sir, the waves of Niagara have extinguished the fires of that vessel—they have silenced forever the agonizing shrieks of her remaining crew; but the cry of vengeance still comes up from her deep and agitated bosom, in tones louder than the thunder of her own mighty cataract. I carry you back to that midnight scene--the tramp of British soldiers; I point you to the dead bodies of your countrymen—to the blazing victim of the falls. Contemplating all these things, in the stillness
mission of the American Secretary of State?
Submission to what? I answer, first. To the impudent menace or threat of the British Government. Do you ask me what he should have done? I answer, that he should have stopped all negotiation at once-instantly have stopped ituntil that menace was withdrawn. I answer further, that the least he should have done would have been, the moment the British Government avowed her approbatien of the act, he ought to have retorted her own language of peremptory demand of satisfaction, and to have flung back her own menace of the serious consequences of a refusal. This, sir, is the least he should have done on that proud and insulting occasion. What else should he have done? Answering at all, he should have said to Mr. Fox: Your avowal of this act by the British Government is vague, prevaricating and unsatisfactory.
I ask your attention, and that of this House and nation, to the precise words of that avowal :
« The grounds on which the British Government make this demand upon the Government of the United States are these : That the transaction 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 per. sons duly empowered by her Majesty's colonial authorities 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.”
These are the precise words of the British minister. It is fair to presume that they are the precise words of the orders of Colonel McNab, under whom McLeod was acting. Well, sir, suppose these orders to be before us now, or before the courts of New York on the trial : will such orders cover the case of McLeod? Will they justify the burning of the Caroline, the invasion of our territory, and the murder of our people? Surely not; because these acts did not come within the scope of their orders or authority. They were only authorized or ordered to do such acts as were necessary for the " defence of her territory, fication, because they exceeded their authority. When is it that individuals by the law of nations, are exempted from municipal liability in such cases? It is only when the act done was by the command of the sovereign. Of course that command must precede the act, and must clearly and satisfactorily cover it. Sir, Vattel, nor Grotius, nor any other writer on the laws of nations, any where lays down the doctrine that subsequent approval, without previous commands, would excuse the individual committing the crime. Such a doctrine would perish by its own absurdity. It is true that a subsequent approval may also involve the nation, and, in the language of the books, “make it a matter of public concern”-as it was, before that avowal, only one of individual concern. This, however, only adds another party to the controversy, without releasing the first. Hence it is said by Vattel, “ if the offended State has in her power the individual who has done the injury, she may, without scruple, bring him to justice, and punish him.”
This case from Vattel is precisely the case of McLeod. He was, to say the best for him, but the servant, or agent, or soldier of the Canadian Government, ordered and sent to do one thing, to wit: to defend the British territory, and protect the British subjects; but exceeding his authority-going beyond his orders-he invaded our territory, burnt our property, and murdered our citizens. He fled back to his own country; and, if he had remainded there, our only recourse would have been to demand him of the British Government. When demanded, if the British Government refused to surrender him, she would have made it a “public concern,” and we might have looked to her for satisfaction for the refusal; not for the original act of her subject, but for the refusal; and the measure of satisfaction for that refusal would justly be, indemnity for losses sustained by the original act. But if, before, or pending, or subsequent to such a demand, the individual returns within our jurisdiction, we may hold him responsible for his transgression of our laws, and punish him accordingly. When that is done, the original offence is atoned for. No double satisfaction for of aggravation attending it.
But, sir, I repeat, that nothing short of a previous order to do the specific act complained of, given by competent authority, can save McLeod in the courts of New York. No subsequent approval of it by the British Government can do it. McLeod will find it so on his trial ; and the American Secretary of State should have told the British Government so, and should have demanded the production of the original order, or a copy of it, so as to see precisely its extent and operation. And here is my highest objection to the conduct of our Secretary of State. He never had the fearlessness to say to Eng land, “Show me your order to this man or his leader ; show me that—its date, its every word—that my Government may see whether these crimes are yours or his. If yours, the courts of New York, in due season, will send him home unharmed and uninjured, whilst I will hold you instantly responsible for his conduct."
This is what Mr. Webster, in my humble opinion, should have said and done. What did he say and do? He affects to see no distinction between a prior order and a subsequent approval of the conduct of McLeod. In fact, he substitutes the latter for the former, and, with indecent haste, gives the British Government to understand that the claim of New York constituted the only difficulty in the way of an instant compliance with its demand. What more? Why he gives Mr. Fox a copy of his instructions to the Attorney General, and thereby informs him of the hasty and extraordinary means by which he was endeavoring to snatch McLeod out of the hands of New York, the only remaining obstacle to his surrender.
Sir, Mr. Fox saw at once that his threat had told the British ministry saw the same thing-the British Parliament saw itand they are all now waiting in full assurance the heroes of Acre will have no opportunity to increase their laurels on the coast of America.
But, sir, they may be mistaken after all. There is but one thing can save him on his trial. If indeed he were absent from