instructed to demand formally, and in the name of the British Government, the immediate release of Alexander McLeod, for the reason that the transaction was of a public character, planned and executed by persons duly authorized by the Colonial Government to take such measures as might be necessary for protecting the property and lives of Her Majesty's subjects; and being, therefore, an act of public duty, they cannot be held responsible to the laws and tribunals of any foreign country.'

"Mr. Webster, in his correspondence with Mr. Fox, the British minister, said that The Government of the United States entertains no doubt that, after the avowal of the transaction as a public transaction, authorized and undertaken by the British authorities, individuals concerned in it ought not, by the principles of public law and the general usage of civilized States, to be holden personally responsible in the ordinary tribunals of law for their participation in it. And the President presumes that it can hardly be necessary to say that the American people, not distrustful of their ability to redress public wrongs by public means, cannot desire the punishment of individuals when the act complained of is declared to have been an act of government itself. * * *

"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 impunity from personal responsibility, by virtue of the law of nations, and that law, in civilized States, is to be respected in all courts.'

"The Supreme Court of the State of New York (25 Wend. R., 483), held that a subject of a foreign State was liable to be proceeded against individually, and tried on an indictment in the criminal courts for arson and murder, notwithstanding the acts for which the indictment was made had been subsequently avowed by his government, and it, consequently, refused to discharge him from custody. The opinion of the court was delivered by Mr. Justice Cowen, and is of great length. So far as the question of national law is concerned, the opinion rests upon the proposition, that till war is declared by the war-making power, the officers or citizens of a foreign government, who enter our territory, are as completely obnoxious to punishment by our law as if they had been born and always resided in this country; that while two nations are at peace with each other, the acts of hostility by individuals must be regarded as private and not public acts, and that the courts will hold the parties individually responsible, notwithstanding the avowal of such acts by their government."

[McLeod was therefore put upon his trial, but the failure of the jury to convict him, on the evidence, put a practical termination to the matter. But to prevent the recurrence of such controversies in the future, by which the action of one of the States might jeopardize the foreign relations of the federal government, the act of August 29, 1842 (U. S. Stat. at Large, V., 539), was passed by Congress for bringing such cases, by writ of habeas corpus, under the cognizance of the courts of the United States at the inception of the proceedings.-F. S.]

SECTION 17.-EXTRATERRITORIAL ACTS BY A STATE, IN SELF-Defense.

THE "CAROLINE," 1837.

(Wharton's Digest, § 50 c.)

A violation of foreign territory may be justified on the ground of the necessity of self-defense.

In 1837 an insurrectionary movement was made in Upper Canada, having in view a reform in the Government of that province. A proclamation had been issued from Navy Island, in the Niagara River, signed by William Lyon Mackenzie, chairman pro tem. of the provisional government, calling upon the reformers to make that island their place of rendezvous, and to aid otherwise in revolu tionizing the province. It stated that the command of the forces was given to General Van Rensselaer, a son of General Solomon Van Rensselaer, of Albany. The sympathy manifested by some citizens of the United States with the Canadian insurgents, induced the governors of New York and Vermont to issue proclamations, warning the citizens of these states to refrain from any unlawful acts within the territory of the United States. Notwithstanding these proclamations, the insurgents were joined by citizens of the United States; whence also they received arms and munitions of war. The steamboat Caroline owned by an American citizen, was said to be engaged in transporting recruits and supplies to the rendezvous on Navy Island; and it was further presumed that this boat would be the means of transferring the expedition to the Canadian shore. Under these circumstances, the British officer in command determined to destroy the Caroline. A force was accordingly despatched for that purpose on the night of the 29th of December, 1837. Not finding her at Navy Island, the party proceeded to her moorings at

Schlosser on the American shore, attacked the crew, one of whom was killed, took the boat into the stream and left it to be carried over Niagara Falls. A proclamation was promptly issued (January 5, 1838), by President Van Buren, enjoining on all citizens obedience to the laws and warning them that the violation of our neutrality would subject the offenders to punishment. General Scott was forthwith ordered to the Canadian frontier to assume the military command there; and requisitions were made upon the Governors of New York and Vermont for such militia force as General Scott might require for the defense of the frontier.

On the other hand, the act was made a subject of complaint by the American government, on the ground of a violation of territory; but it was justified by Great Britain on the ground of the necessity of self-preservation.

The question remained unsettled till 1842, when Mr. Webster, in correspondence with Lord Ashburton, contended, that for such an infringement of territorial rights, the British government must show "a necessity of self-defense, instant, overwhelming, and leaving no choice of means and no moment for deliberation;" and it should further appear that the Canadian authorities, in acting under this exigence, "did nothing unreasonable or excessive, since the act, justified by the necessity of self-defense, must be limited by that necessity and kept clearly within it." Lord Ashburton admitted the correctness of Mr. Webster's doctrine, and asserted that the destruction of the Caroline came fully within its limits: and, though the act was justifiable, an apology for the violation of territory should have been made at the time. This was accepted by the United States as satisfactory, and the subject was allowed to drop. (Parliamentary Papers, 1843, Ixi. 46-51; Wharton's Digest of International Law, I., § 50 c; Benton's Thirty Years in the Senate, II., 289, 455.)

SEIZURE OF SAINT MARK'S.

(1 Wharton's Digest, 224.)

Necessity justifies an invasion of foreign territory so as to subdue an expected assailant.

In 1815, under orders of Mr. Monroe, measures were taken for the destruction of a fort held by outlaws of all kinds on the Appalachicola River, then within the Spanish territory, from which parties had gone forth to pillage within the United States. The governor of Pensacola had been called upon to suppress the evil and punish

the marauders, but had refused; and on his refusal, the Spanish territory was entered, and the fort attacked and destroyed on the ground of necessity.

General Jackson put his seizure and occupation of the fort at Saint Mark's, which was within Spanish territory, expressly on the ground of necessity. In his letter to the governor of Saint Mark's, he declared that the Spanish garrison, from its feebleness, would be unable to resist the attacks of Indians who intended to make it a base for their operations against the United States.

"To prevent the recurrence of so gross a violation of neutrality, and to exclude our savage enemies from so strong a hold as Saint Mark's, I deem it expedient to garrison that fortress with American troops until the close of the present war. This measure is justifiable on the immutable principles of self-defense, and cannot but be satisfactory, under existing circumstances, to his Catholic Majesty the King of Spain. Under existing treaties between the two governments, the King of Spain is bound to preserve in peace with the citizens of the United States, not only his own subjects, but all Indian tribes residing within his territory. When called upon to fulfill that part of the treaty in relation to a savage tribe who have long depredated with impunity on the American frontier, incompetency is alleged, with an acknowledgment that the same tribe have. acted in open hostility to the laws, and invaded the rights of his Catholic Majesty. As a mutual enemy, therefore, it is expected that every facility will be afforded by the agents of the King of Spain to chastise these lawless and inhuman savages. In this light is the possession of Saint Mark's by the American forces to be viewed." 1

THE "VIRGINIUS," 1873.

(U. S. Foreign Relations, 1874; Parl. Papers, 1874, vol. 76.)

Seizure, on the high seas, of a vessel carrying a foreign flag, on the ground of self-defense.

The Virginius was registered in the United States and carried the American flag; but, as it eventually appeared, she was really the property of certain Cuban insurgents, and was employed in aid of the rebellion in Cuba. On the 9th of July, 1873, she arrived at Kingston, Jamaica, and on the 23d of October she cleared ostensibly for

1 The seizure of Amelia Island, in 1817, by authority of the government of the United States, was put upon similar ground. (1 Wharton's Digest, § 50 a.)

Limon Bay in Costa Rica, but really for the coast of Cuba. Being chased by a Spanish war-ship, she put into Port-au-Prince, Hayti. Thence she proceeded again to the coast of Cuba, and was again chased by a Spanish war-vessel the Tornado and was captured ten or fifteen miles from the coast of Jamaica, on the 31st of October. She was taken to Santiago de Cuba, where a court was assembled for the trial of the persons found on board-155 in number: Of these four were tried on the 3d of November, and shot on the 4th, thirtyseven on the 7th, and sixteen on the 8th. Among those executed were nine Americans and sixteen British subjects.

The government of the United States supposing that its rights on the high seas had been violated, demanded reparation. And by an agreement of the 29th of November, Spain stipulated to restore the Virginius and the survivors of the passengers and crew, and to salute the flag of the United States on the 25th of December following, unless Spain should in the meantime prove that the vessel was not entitled to carry said flag. The matter was submitted to the Attorney-General of the United States, who, after careful examination, reported on the 12th of December, that the registry of the Virginius was fraudulent, and that she had therefore no right to carry the American flag. But he added, "I am also of opinion that she was as much exempt from interference on the high seas by any other power, on that ground, as though she had been lawfully registered. Spain, no doubt, has a right to capture a vessel, with an American register, and carrying the American flag, found in her own waters assisting, or endeavoring to assist, the insurrection in Cuba, but she has no right to capture such a vessel on the high seas upon an apprehension that, in violation of the neutrality or navigation laws of the United States, she was on her way to assist said rebellion. Spain may defend her territory and people from the hostile attacks of what is, or appears to be an American vessel; but she has no jurisdiction whatever over the question as to whether or not such vessel is on the high seas in violation of any law of the United States." Spain having proved her point, the salute to the flag was dispensed with. The vessel was delivered to the United States authorities on the 16th of December, 1873; but on her way north, sank, off Cape Fear, on the 26th of that month.

Both the United States and England demanded reparation for the persons of their respective nationalities who had been executed by the captors of the Virginius; and this Spain eventually agreed to make. Even assuming that the vessel was lawfully seized, it was contended that there could be no justification of the summary execu tion of foreigners by order of a drum-head court-martial.