DESTRUCTION OF THE CAROLINE: ARREST AND TRIAL OF McLEOD: MR.
BENTON'S SPEECH: EXTRACTS.
Mr. Benton said the history of our country contained a warning
lesson to gentlemen who take the side of a foreign country against
their own: he alluded to the case of Arbuthnot and Ambrister,
seized among the Seminole Indians in 1818, and hung as outlaws
and pirates by the orders of General Jackson. The news of that
execution was heard with joy by the American people, who considered
these Englishmen as a thousand times more culpable than the
wretched savages whom they stimulated to the murder of women and
children--men who had abandoned their own country, and the white
race to which they belonged, to join savages against a country with
which their own government was at peace. The country heard the
news of the execution with joy: they approved the act of General
Jackson. Not so with the politicians--the politicians of the federal
school especially. They condemned it; partisan presses attacked
it; and when Congress met, committees of each House of Congress
reported against it--loudly condemned it--and were followed by a
crowd of speakers. All the phrases now heard in claiming exemption
for McLeod, and bewailing his fate, were then heard in deploring
the fate of Arbuthnot and Ambrister. Violation of the laws of
nations--inhuman--unworthy of the nineteenth century--shocking
to humanity--barbarous--uncivilized--subjecting us to reprisals,
and even to war from England--drawing upon us the reproaches of
Christendom, and even the wrath of Heaven: such were the holiday
phrases with which the two Houses of Congress then resounded. To
hear what was said, and it would seem that the British lion would
be instantly upon us. We were taught to tremble for the return news
from England. Well! it came! and what was it? Not one word from the
British government against the act of Jackson! Not the scrape of a
pen from a minister on the subject! Not a word in Parliament except
the unsupported complaint of some solitary members--just enough
to show, by the indifference with which it was received, that the
British House of Commons had no condemnation to pronounce upon the
conduct of General Jackson. Their silence justified him in England,
while committees and orators condemned him in his own country: and
this justification from abroad, in a case where two Englishmen were
actually hanged, should be a warning to gentlemen how they should
commit themselves in a case where an Englishman is merely in the
hands of justice, and has nothing to fear from "God and the country"
if he is as innocent, as he now alleges, and which humanity would
wish him to be. General Jackson was right, and the committees and
orators who condemned him were wrong. He was right in the law, and
in the application of the law. He had no musty volumes of national
law to refer to in the swamps of Florida; and he needed none. He had
the law of nature, and of nations, in his heart. He had an American
heart, and that heart never led him wrong when the rights, the
interest, and the honor of his country were at stake. He hung the
Englishmen who were inciting savages to the murder of our women and
children: and the policy of the measure has become no less apparent
than its legality was clear. Before that time Englishmen were
habitually in the camp and wigwam of the Indians, stimulating to
war upon us: since that time no Englishman has been heard of among
them. The example was impressive--its effect salutary--its lesson
permanent. It has given us twenty-five years of exemption from
British interference in our Indian relations; and if the assassins
of the Caroline shall be hung up in like manner it will give us
exemption from future British outrage along the extended line which
divides the Union from the British Canadian provinces.
It is humiliating to see senators of eminent ability consulting
books to find passages to justify an outrage upon their own country.
Better far throw away the books, and go by the heart. Then, at
least, with American hearts, they would always have the consolation
of being on their country's side. Better even to take the rule of
the illustrious commodore whose actions have shed so much lustre
on the American name (Decatur), and go for their country, right
or wrong. Then they would always have their own hearts on their
side. Besides, there is no book which fits our case--none which
was written for the duplicate form of government which we possess.
We have State governments as well as a general government; and
those governments have their rights, and are sovereign within their
limits. The protection of the lives, liberty, and property of their
citizens, is among these rights: the punishment of murder, arson,
and burglary, are among these rights. If there was nothing in the
law of nations, as written in the books, to recognize these rights,
it would be necessary for us to do an act which would cause a new
line to be written in these books. But this is not the case. The law
of nations as it now stands, is sufficient for us. It has been read
from Vattel by several senators; and is conclusive in our favor.
What is it? Why, that if the citizens of one country commit an
outrage upon another, you must apply to their sovereign for redress:
but if the wrong-doer comes into your country, you may seize and
punish him. This is the law of nations, and it fits our case; and
we have followed it. The United States, as charged with our foreign
relations, have made the demand for redress upon Great Britain: the
State of New York, as the wronged local authority, has seized the
wrong-doer, when he came upon her territory; and is giving him what
he did not give her citizens--a trial for his life: and this she has
a right to do: and if the federal government attempts to give up
that man, she shrinks from the defence of right, violates the law of
nations, and invades the jurisdiction of New York.
This brings us to the case before us. What is it? The facts of the
transaction are all spread out in official documents, and sustained
upon clear and undeniable testimony. Some Canadian insurgents are
on an island, near the Canada shore, entrenching themselves, and
receiving aid in men and arms from the American side. An American
ferry-boat, the Steamer Caroline, carries that aid. She is seen in
the fact--seen by the commanding officer of the British forces, as
he stands on the Canadian shore, looking on. He sees her there late
in the evening--saw her cast anchor near the island--and determines
to destroy her there. Five boats are fitted out in the dark to go
and do the work; and if they had done it there, not a word would
have been said; for it was a British island, and she was there upon
an unlawful business--violating the laws of neutrality, disobeying
the laws of her own country, disregarding the proclamation of the
President; and doing an act which might bring her own country into
trouble. If she had been found there and destroyed, not a word would
have been said: but she was not found there, and the captain of the
boats, of his own head, contrary to the order which he had received,
and which directed him to the British island, and contrary to the
letter written by his commanding officer on that very day, abjuring
all right and all intent to make a descent upon our coast, because
it was ours: this captain, his name Drew, and an officer in the
British navy without the knowledge of his commander, determines
to cross the line--to steal across the river in the night--oars
muffled--all noises silenced--creep upon the unsuspecting vessel,
anchored at the shore, sleeping under the flag, and sheltered by
the laws of her country, and the law of nations: and stealthily get
on board. They run to the berths--cut, stab, slash, and shoot, all
that they see--pursue the flying--kill one man on the shore--no
distinction of persons--and no quarter the word. Several are killed
in the boat: none escape but those whom darkness and confusion
favored. Victorious in an attack upon men asleep, the conquerors
draw the vessel into the middle of the river--it was just above
the falls--set her on fire; and, with all her contents--the dead
and the dying, the living and the wounded--send her, luminous in
flames, over the frightful cataract of Niagara. One man alone had
been spared, and he as a British subject, to be taken home for
punishment. These are facts. What do they amount to in law--that of
nations, and that of New York, where the deed was done? First, a
violation of the law of nations, in invading the soil of the United
States--in attacking a vessel (even if it had been a belligerent),
in a neutral port--in attacking persons on neutral territory--in
impressing and carrying off a man from our territory: then each
of these acts was a crime against the municipal laws of New York.
McLeod, one of the actors in that cowardly assassination, and
conflagration, guilty upon his own boasting, and caught upon the
scene of his outrage, now in the hands of justice in the State of
New York, while no indemnity is offered for the outrage itself: this
perpetrator we are required, and that under a threat, to release
from the hands of a State, which has the legal right to try him.
All this was years before--near four years before--December, 1837.
The news flew upon the wings of the wind. It fired the bosoms of
the border inhabitants, upon a line of fifteen hundred miles.
Retaliation was in every heart, threats in every mouth, preparation
open--war imminent. Mr. Van Buren was then President. To repress
the popular risings, proclamations were issued: to prevent acts
of retaliation, troops were stationed along the line, and armed
steamers floated the river and the lakes: to punish any violation
of order, instructions were issued to the district attorneys,
and marshals; and the aid of the State authorities was claimed,
and obtained. To obtain redress for the outrage to our citizens,
and the insults to our national character, immediate application
was made to the British government. That government delayed its
answer to our just demand--avoided the assumption of the criminal
act--excused and justified, without assuming it, either in words,
or indirectly, by rewarding the actors, or even giving pensions
to those wounded in the attack: for there were several of them in
the dark and dastardly attack. Diplomacy was still drawing out its
lengthened thread--procrastination the game, and the chapter of
accidents the hope--when McLeod, the boaster in Canada of his active
share in this triple crime of murder, arson, and robbery, against
the State of New York, and of violated neutrality against the United
States, crosses over to the United States, exhibits himself on the
very spot of his exploits, and in the sight of those who had often
heard of his boasts. Justice then took hold of him. He was arrested
on an indictment found against him, immediately after the act; and
he was also sued by the owner of the vessel. A trial, of course,
in each case, was to take place in the courts of the State whose
laws had been violated. Vattel prescribed that. The United States
had nothing to do with it. Her business was with his sovereign.
To the State it belonged to punish the violation of her own laws,
the perpetrator having been caught within her jurisdiction: to
the owner of the boat it belonged to sue for damages; and neither
the United States, nor the State of New York, had any right to
defeat his action, by releasing the defendant. It was a transitory
action, and would lay any where where the defendant was caught.
McLeod went to jail in both cases--the indictment, and the civil
suit; and would seem to have courted that fate by coming over to
defy it. The news of these proceedings fly to the British minister
in this city (Mr. Henry S. Fox): that minister addresses a note
to the Secretary of State (Mr. Forsyth), demanding the release
of McLeod: the Secretary answered, by the direction of President
Van Buren, that this man, being charged with criminal offences
against the State of New York, and sued in a civil action by one
of her citizens, the general government had no right to release
him: and would not undertake to do so. This answer was read in
this chamber on the night of the 5th of January last, when the
Senate was composed very nearly as it is now--nearly all the same
members--when the present Secretary of State (Mr. Webster), and
the present Attorney-general (Mr. Crittenden), were both present:
and we all know in what manner that answer of Mr. Forsyth was
received. It received the unanimous approbation of this chamber!
Mr. B. repeated the expression--unanimous approbation! and said
he would pause for correction if he was mistaken. (He paused.
Several senators said, yes! yes! No one said the contrary.) Mr. B.
continued: I remember that letter well, and the feeling of unanimous
approbation which pervaded the chamber when it was read. Every
senator that spoke, expressed his approbation. No one signified
dissent: and the feeling was then universal that the proper answer
had been given by the American government--the answer which the
law of nations, our duplicate form of government, the dignity of
the Union, the rights of the State of New York, and the rights of
the owner of the destroyed vessel--all required to be given. If I
am wrong in my recollection, I repeat the request: let me be set
right now. (Several voices exclaimed, "right! right!" No one said
the contrary.) Mr. B. resumed: a great point--one vital to the
case as it concerns our action, and conclusive in this debate, is
now established. It is established, that in the month of January
last, when the answer of the American Secretary was read in this
chamber, we were all of opinion that he had given the correct
and proper answer: and among the senators then present were the
present Secretary of State, who has undertaken to get McLeod out
of the clutches of the law in New York; and also the present
attorney-general, who has gone to New York upon that errand. This is
enough. Those gentlemen heard the case then, and uttered no dissent.
The Senate was then unanimous--including those who dissent now. How
was it in the House of Representatives, where the same papers were
read at the same time? How was it there, in a body of 220, and the
immediate representatives of the people? About the same that it
was in the Senate--only more formally expressed. The papers were
sent to the Committee of Foreign Affairs. That committee, through
Mr. Pickens, its chairman, made an ample report, fully sustaining
the answer of the American government: and of that report, five
thousand extra copies were printed by the unanimous consent of the
House, for distribution among the people.
In the month of January last, it may then be assumed, that the two
Houses of Congress approved the decision of President Van Buren; and
according to that decision, McLeod was neither to be given up, nor
the course of justice in New York interfered with by the federal
government. Mr. Fox received the answer of Mr. Forsyth--transmitted
it to his government--and received from that government precise
instructions to avow and assume the attack on the Caroline as
a national act--to make a peremptory demand for the release of
McLeod--to threaten us with serious consequences in the event of
refusal; and, as the London newspapers said, to demand his passports
and leave the country if his demand was not immediately complied
with. It was on the evening of the 4th day of March--the day of
the inauguration of the new President, so nicely had the British
ministry calculated the time--that the news of these instructions
arrived in this city; and along with that news came the war-threats,
and the war speeches of the press and public men of Great
Britain--the threat of many papers to send admirals and war-steamers
to batter down our cities; and the diabolical speech of a peer of
the realm (Lord Mountcashel) to excite our three millions of slaves
to insurrection--to raise all the Indian tribes against us--and to
destroy our finances by bursting the paper bubbles on which they
floated. Yes! it was on the evening of the 4th day of March that
these instructions--these threats--these war annunciations--all
arrived together in this city. The new President (General Harrison)
had just been inaugurated: his cabinet had just been indicated:
the men who were to compose the presidential council were fully
known: and I undertook at once to tell what would be done. I said to
several--some now in this city if not in this chamber: McLeod will
be given up--not directly, but indirectly. Underhanded springs will
be set in motion to release him, and a letter will afterwards be
cooked up to show to Congress and the people, and to justify what
had been done. This is what I said. Persons are now in this city to
whom I said it. And now let us resume the succession of events, and
see what was done by this new administration which had just been
inducted into office in the midst of triumphal processions--under
the fire of cannon--the beating of drums--the display of flags;
and all the glorious pomp and circumstance of war. Let us see what
they did. On the 12th of March--the new administration having been
allowed a week to organize--Mr. Fox addresses to Mr. Webster a
formal demand, in the name of his government for the release of
McLeod, and goes on to say:
"The grounds upon which the British government made 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 persons 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."
And after enforcing this demand, by argument, contesting the answer
given by Mr. Forsyth, and suggesting the innocence of McLeod, the
letter proceeds to say:
"But, be that as it may, her Majesty's government formally
demands, upon the grounds already stated, the immediate release
of Mr. McLeod; and her Majesty's government entreat the
President of the United States to take into his most deliberate
consideration the serious nature of the consequences which must
ensue from a rejection of this demand."
This letter to Mr. Webster bears date on the 12th of March, which
was Friday, and will be considered as having been delivered on the
same day. On the 15th of the same month, which was Monday, Mr.
Webster delivers to the Attorney-general of the United States, a
set of instructions, and delivers a copy of the same to Mr. Fox,
in which he yields to the demand of this Minister, and despatches
the Attorney-general to New York, to effect the discharge of the
prisoner. The instructions, among other things, say:
"You are well aware that the President has no power to arrest
the proceeding in the civil and criminal courts of the State of
New York. If this indictment were pending in one of the courts
of the United States, I am directed to say that the President,
upon the receipt of Mr. Fox's last communication, would have
immediately directed a _nolle prosequi_ to be entered. Whether
in this case the Governor of New York have that power, or, if
he have, whether he would not feel it his duty to exercise it,
are points upon which we are not informed. It is understood
that McLeod is holden also on civil process, sued out against
him by the owner of the Caroline. We suppose it very clear that
the Executive of the State cannot interfere with such process;
and, indeed, if such process were pending in the courts of the
United States, the President could not arrest it. In such, and
many analogous cases, the party prosecuted and sued, must avail
himself of his exemption or defence, by judicial proceedings,
either in the court into which he is called, or in some other
court. But whether the process be criminal or civil, the fact
of having acted under public authority, and in obedience to the
orders of lawful superiors, must be regarded as a valid defence;
otherwise, individuals would be holden responsible for injuries
resulting from the acts of government, and even from the
operations of public war. You will be furnished with a copy of
this instruction, for the use of the Executive of New York, and
the Attorney-general of that State. You will carry with you also
authentic evidence of the recognition by the British government
of the destruction of the Caroline, as an act of public force,
done by national authority. The President is impressed with
the propriety of transferring the trial from the scene of the
principal excitement to some other and distant county. You will
take care that this be suggested to the prisoner's counsel.
The President is gratified to learn that the Governor of New
York has already directed that the trial take place before the
Chief Justice of the State. Having consulted with the Governor
you will proceed to Lockport, or wherever else the trial may be
holden, and furnish the prisoner's counsel with the evidence
of which you will be in possession material to his defence.
You will see that he have skilful and eminent counsel, if such
be not already retained, and, although you are not desired to
act as counsel yourself, you will cause it to be signified to
him, and to the gentlemen who may conduct his defence, that it
is the wish of this government that, in case his defence be
overruled by the court in which he shall be tried, proper steps
be taken immediately for removing the cause, by writ of error,
to the Supreme Court of the United States. The President hopes
that you will use such despatch as to make your arrival at the
place of trial sure before the trial comes on; and he trusts
you will keep him informed of whatever occurs by means of a
correspondence through this Department."
A copy of these instructions, as I have said, was delivered to Mr.
Fox at the time they were written. At the same moment they were
delivered to the new Attorney-general [Mr. CRITTENDEN], who, thus
equipped with written directions for his guide, and accompanied by
an officer of high rank in the United States army [Major-general
SCOTT], immediately proceeded on the business of his mission to
the State of New York, and to the place of the impending trial,
at Lockport. About forty days thereafter, namely, on the 24th day
of April, Mr. Webster replies to Mr. Fox's letter of the 12th
of March; elaborately reviews the case of McLeod--justifies the
instructions--absolves the subject--and demands nothing from the
sovereign who had assumed his offence. Thus, what I had said on the
evening of the 4th of March had come to pass. Underhand springs
had been set in motion to release the man; a letter was afterwards
cooked up to justify the act. This, sir, is the narrative of the
case--the history of it down to the point at which it now stands;
and upon this case I propose to make some remarks, and, in the
first place, to examine into the legality and the propriety of the
mission in which our Attorney-general was employed. I mean this as
a preliminary inquiry, unconnected with the general question, and
solely relating to the sending of our Attorney-general into any
State to interfere in any business in its courts. I believe this
mission of Mr. Crittenden to New York was illegal and improper--a
violation of our own statutes, and will test it by referring to the
law under which the office of Attorney-general was created, and the
duties of the officer defined. That law was passed in 1789, and is
in these words:
"And there shall also be appointed a meet person, learned in the
law, to act as Attorney-general of the United States, who shall
be sworn, or affirmed, to a faithful execution of his office;
whose duty it shall be to prosecute and conduct all suits in the
Supreme Court in which the United States shall be concerned,
and to give his advice and opinion upon questions of law,
when required by the President of the United States, or when
requested by any of the heads of the Departments, touching any
matters that may concern their departments; and shall receive
such compensation for his services as shall be by law provided."
Here, said Mr. B., are the duties of the Attorney-general. He
is subject to no orders whatever from the Secretary of State.
That Secretary has nothing to do with him except to request his
legal advice on a matter which concerns his department. Advice
on a question of municipal law was doubtless what was intended;
but no advice of any kind seems to have been asked of the
Attorney-general. He seems to have been treated as the official
subordinate of the Secretary--as his clerk or messenger--and sent
off with "_instructions_" which he was to read and to execute.
This was certainly an illegal assumption of authority over the
Attorney-general, an assumption which the statute does not
recognize. In the next place, this officer is sent into a State
court to assist at the defence of a person on trial in that court
for a violation of the State laws, and is directed to employ eminent
and skilful counsel for him--to furnish him with evidence--to
suggest a change of venue--and to take a writ of error to the
Supreme Court of the United States, if the defence of the prisoner
be overruled by the State court. If brought to the Supreme Court
by this writ of error--a novel application of the writ, it must
be admitted--then the Attorney-general is to appear in this court
for the prisoner, not to prosecute him in the name of the United
States, but to dismiss the writ. Now, it is very clear that all
this is foreign to the duty of the Attorney-general--foreign
to his office--disrespectful and injurious to the State of New
York--incompatible with her judicial independence--and tending
to bring the general government and the State government into
collision. McLeod, a foreigner, is under prosecution in a State
court for the murder of its citizens; the importance of the case has
induced the Governor of the State, as he has officially informed
its legislature, to direct the Attorney-general of the State to
repair to the spot, and to prosecute the prisoner in person; and
here is the Attorney-general of the United States sent to the same
place to defend the same person against the Attorney-general of the
State. The admonition to Mr. Crittenden, that he was not desired
to act as counsel himself, was an admission that he ought not so
to act--that all he was doing was illegal and improper--and that
he should not carry the impropriety so far as to make it public
by making a speech. He was to oppose the State without publicly
appearing to do so; and, as for his duty in the Supreme Court of
the United States, he was to violate that outright, by acting for
the accused, instead of prosecuting for the United States! From all
this, I hold it to be clear, that our Attorney-general has been
illegally and improperly employed in this business; that all that
he has done, and all the expense that he has incurred, and the fee
he may have promised, are not only without law but against law; and
that the rights of the State of New York have not only been invaded
and infringed in this interference in a criminal trial, but that the
rights and interests of the owners of the Caroline, who have brought
a civil action against McLeod for damages for the destruction of
their property, have been also gratuitously assailed in that part of
the Secretary's instructions in which he declares that such civil
suit cannot be maintained. I consider the mission as illegal in
itself, and involving a triple illegality, _first_, as it concerns
the Attorney-general himself, who was sent to a place where he had
no right to go; _next_, as it concerns the State of New York, as
interfering with her administration of justice; and, _thirdly_, as
it concerns the owners of the Caroline, who have sued McLeod for
damages, and whose suit is declared to be unmaintainable.
I now proceed, Mr. President, to the main inquiry in this case, the
correctness and propriety of the answer given by our Secretary of
State to Mr. Fox, and its compatibility with the honor, dignity, and
future welfare of this republic.
I look upon the "_instructions_" which were given to Mr. Crittenden,
and a copy of which was sent to Mr. Fox, as being THE ANSWER to
that Minister; and I deem the letter entitled an answer, and dated
forty days afterwards, as being a mere afterpiece--an article for
home consumption--a speech for Buncombe, as we say of our addresses
to our constituents--a pleading intended for us, and not for the
English, and wholly designed to excuse and defend the real answer so
long before, and so promptly given. I will give some attention to
this, so called, letter, before I quit the case; but for the present
my business is with the "_instructions_," a copy of which being
delivered to Mr. Fox, was the answer to his demand; and as such was
transmitted to the British government, and quoted in the House of
Commons as being entirely satisfactory. This quotation took place
on the 6th day of May, several days before the, so called, letter
of the 24th of April could possibly have reached London. Lord John
Russell, in answer to a question from Mr. Hume, referred to these
instructions as being satisfactory, and silenced all further inquiry
about the affair, by showing that they had all they wanted.
I hold these instructions to have been erroneous, in point of
national law, derogatory to us in point of national character, and
tending to the future degradation and injury of this republic.
That the Secretary has mistaken the law of the case in consenting
to the release of McLeod is persuasively shown by referring to
the opinions of the two Houses of Congress in January last. Their
opinions were then unanimous in favor of Mr. Forsyth's answer; and
that answer was a peremptory refusal either to admit that McLeod
ought to be released, or to interfere in his behalf with the courts
of New York. The reasons urged by Mr. Fox in his letter to Mr.
Forsyth for making the demand, were precisely the same with those
subsequently given in the letter to Mr. Webster. The only difference
in the two demands was in the formality of the latter, being under
instructions from his government, and in the threat which it
contained. In other respects the two demands were the same; so that,
at the outset of this inquiry, we have the opinions of the Secretary
of State, the Attorney-general, and the body of their friends in the
two Houses of Congress to plead against themselves. Then we produce
against our Secretary the law of nations, as laid down by Vattel. He
says:
"However, as it is impossible for the best regulated State, or
for the most vigilant and absolute sovereign to model at his
pleasure all the actions of his subjects, and to confine them on
every occasion to the most exact obedience, it would be unjust
to impute to the nation or the sovereign every fault committed
by the citizens. We ought not, then, to say, in general, that we
have received an injury from a nation, because we have received
it from one of its members. But if a nation or its chief
approves and ratifies the act of the individual, it then becomes
a public concern, and the injured party is then to consider the
nation as the real author of the injury, of which the citizen
was, perhaps, only the instrument. _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._ If he
has escaped, and returned to his own country, she ought to apply
to his sovereign to have justice done in the case."
This is the case before us. The malefactor is taken, and is in the
hands of justice. His imputed crime is murder, arson, and robbery.
His government, by assuming his crime, cannot absolve his guilt,
nor defeat our right to try and punish him according to law. The
assumption of his act only adds to the number of the culpable, and
gives us an additional offender to deal with them, if we choose. We
may proceed against one or both; but to give up the individual when
we have him, without redress from the nation, which justifies him,
is to throw away the advantage which chance or fortune has put into
our hands, and to make a virtual, if not actual surrender, of all
claim to redress whatsoever.
The law of nations is clear, and the law of the patriot heart is
equally clear. The case needs no book, no more than the hanging of
Arbuthnot and Ambrister required the justification of books when
General Jackson was in the hommocks and marshes of Florida. A band
of foreign volunteers, without knowing what they were going to do,
but ready to follow their file leader to the devil, steal across a
boundary river in the night, attack unarmed people asleep upon the
soil, and under the flag of their country; give no quarter--make
no prisoners--distinguish not between young and old--innocent or
guilty--kill all--add fire to the sword--send the vessel and its
contents over the falls in flames--and run back under cover of
the same darkness which has concealed their approach. All this in
time of peace. And then to call this an act of war, for which the
perpetrators are not amenable, and for which redress must be had by
fighting, or negotiating with the nation to which they belong. This
is absurd. It is futile and ridiculous. Common sense condemns it.
The heart condemns it. Jackson's example in Florida condemns it; and
we should render ourselves contemptible if we took any such weak and
puerile course.
Mr. Fox nowhere says this act was done by the sovereign's command.
He shows, in fact, that it was not so done; and we know that it
was not. It was the act of volunteers, unknown to the British
government until it was over, and unassumed by them for three
years after it occurred. The act occurred in December, 1837; our
minister, Mr. Stevenson, demanded redress for it in the spring
of 1838. The British government did not then assume it, nor did
they assume it at all until McLeod was caught. Then, for the
first time, they assume and justify, and evidently for the mere
purpose of extricating McLeod. The assumption is void. Governments
cannot assume the crimes of individuals. It is only as a military
enterprise that this offence can be assumed; and we know this affair
was no such enterprise, and is not even represented as such by
the British minister. He calls it a "_transaction_." Three times
in one paragraph he calls it a "_transaction_;" and whoever heard
of a fight, or a battle, being characterized as a transaction? We
apply the term to an affair of business, but never to a military
operation. How can we have a military operation without war? without
the knowledge of the sovereign? without the forms and preliminaries
which the laws of nations exact? This was no military enterprise
in form, or in substance. It was no attack upon a fort, or a ship
of war, or a body of troops. It was no attack of soldiers upon
soldiers, but of assassins upon the sleeping and the defenceless.
Our American defenders of this act go beyond the British in exalting
it into a military enterprise. They take different ground, and
higher ground, than the British, in setting up that defence; and
are just as wrong now as they were in the case of Arbuthnot and
Ambrister.
Incorrect in point of national law, I hold these instructions to
have been derogatory to as in point of national character, and given
with most precipitate haste when they should not have been given at
all. They were given under a formal, deliberate, official threat
from the minister; and a thousand unofficial threats from high and
respectable sources. The minister says:
"But, be that as it may, her Majesty's government _formally
demands_, upon the grounds already stated, the _immediate_
release of Mr. McLeod; and her Majesty's government entreat the
President of the United States to take into his most _deliberate
consideration_ the serious nature of the consequences which
must ensue from a rejection of this demand."
Nothing could be more precise and formal than this demand--nothing
more significant and palpable than this menace. It is such as should
have prevented any answer--such as should have suspended diplomatic
intercourse--until it was withdrawn. Instead of that, a most sudden
and precipitate answer is given; and one that grants all that the
British demanded, and more too; and that without asking any thing
from them. It is given with a haste which seems to preclude the
possibility of regular deliberation, cabinet council, and official
form. The letter of Mr. Fox bears date the 12th of March, which was
Friday, and may have been delivered in office hours of that day. The
instruction to Mr. Crittenden was delivered on the 15th of March,
which was Monday, and a copy delivered to Mr. Fox. This was the
answer to the demand and the threat; and thus the answer was given
in two days; for Sunday, as the lawyers call it, is _dies non_; that
is to say, no day for business; and it is hardly to be presumed that
an administration which seems to be returning to the church and
state times of Queen Anne, had the office of the Department of State
open, and the clerks at their desks on Sunday, instead of being in
their pews at church. The answer, then, was given in two days; and
this incontinent haste to comply with a threat contrasts wonderfully
with the delay--the forty days' delay--before the letter was written
which was intended for home consumption; and which, doubtless, was
considered as written in good time, if written in time to be shown
to Congress at this extra session.
Sir, I hold it to have been derogatory to our national character
to have given any answer at all, much less the one that was given,
while a threat was hanging over our heads. What must be the
effect of yielding to demands under such circumstances? Certainly
degradation--national degradation--and an encouragement to Great
Britain to continue her aggressive course upon us. That nation
is pressing us in the Northeast and Northwest; she is searching
our ships on the coast of Africa; she gives liberty to our slaves
wrecked on her islands in their transit from one of our ports to
another; she nurtures in London the societies which produced
the San Domingo insurrection, and which are preparing a similar
insurrection for us; and she is the mistress of subjects who hold
immense debts against our States, and for the payment of which the
national guarantee, or the public lands, are wanted. She has many
points of aggressive contact upon us; and what is the effect of
this tame submission--this abject surrender of McLeod, without a
word of redress for the affair of the Caroline, and under a public
threat--what is the effect of this but to encourage her to press
us and threaten us on every other point? It must increase her
arrogance, and encourage her encroachments, and induce her to go
on until submission to further outrage becomes impossible, and war
results from the cowardice which courage would have prevented. On
this head the history of many nations is full of impressive lessons,
and none more so than that of Great Britain. It is a nation of
brave people; but they have sometimes had ministers who were not
brave, and whose timidity has ended in involving their country in
all the calamities of war, after subjecting it to all the disgrace
of pusillanimous submission to foreign insult. The administration
of Sir Robert Walpole; long, cowardly and corrupt--tyrannical at
home and cringing abroad--was a signal instance of this; and, as a
warning to ourselves, I will read a passage from English history to
show his conduct, and the consequences of it. I read from Smollett,
and from his account of the Spanish depredations, and insults upon
English subjects, which were continued the whole term of Walpole's
administration, and ended in bringing on the universal war which
raged throughout Europe, Asia, Africa, and America, and cost the
English people so much blood and treasure. The historian says:
"The merchants of England loudly complained of these outrages;
the nation was fired with resentment, and cried for vengeance;
but the minister appeared cold, phlegmatic, and timorous. He
knew that a war would involve him in such difficulties as must
of necessity endanger his administration. The treasure which
he now employed for domestic purposes must in that case be
expended in military armaments; the wheels of that machine on
which he had raised his influence would no longer move; the
opposition would of consequence gain ground, and the imposition
of fresh taxes, necessary for the maintenance of the war, would
fill up the measure of popular resentment against his person
and ministry. Moved by these considerations, he industriously
endeavored to avoid a rupture, and to obtain some sort of
satisfaction by dint of memorials and negotiations, in which
he betrayed his own fears to such a degree as animated the
Spaniards to persist in their depredations, and encouraged the
court of Madrid to disregard the remonstrances of the British
ambassador."
Such is the picture of Walpole's foreign policy; and how close is
the copy we are now presenting of it! Under the scourge of Spanish
outrage, he was cold, phlegmatic, and timorous; and such is the
conduct of our secretary under British outrage. He wanted the public
treasure for party purposes, and neglected the public defences: our
ministry want the public lands and the public money for _douceurs_
to the States, and leave the Union without forts and ships. Walpole
sought some sort of satisfaction by dint of negotiation; our
minister does the same. The British minister at Madrid was paralyzed
by the timidity of the cabinet at home; so is ours paralyzed at
London by our submission to Mr. Fox here. The result of the whole
was, accumulated outrage, coalitions against England, universal war,
the disgrace of the minister, and the elevation of the man to the
highest place in his country, and to the highest pinnacle of glory,
whom Walpole had dismissed from the lowest place in the British
army--that of cornet of horse--for the political offence of voting
against him. The elder William Pitt--the dismissed cornet--conducted
with glory and success the war which the timidity of Walpole begat;
and, that the smallest circumstances might not be wanting to the
completeness of the parallel, our prime minister here has commenced
his career by issuing an order for treating our military and naval
officers as Pitt was treated by Walpole, and for the same identical
offence.
Sir, I consider the instructions to Mr. Crittenden as most
unfortunate and deplorable. They have sunk the national character
in the eyes of England and of Europe. They have lost us the respect
which we gained by the late war and by the glorious administration
of Jackson. They bring us into contempt, and encourage the haughty
British to push us to extremities. We shall feel the effect of
this deplorable diplomacy in our impending controversies with that
people; and happy and fortunate it will be for us if, by correcting
our error, retracing our steps, recovering our manly attitude,
discarding our distribution schemes, and preparing for war, we shall
be able thereby to prevent war, and to preserve our rights.
I have never believed our English difficulties free from danger.
I have not spoken upon the Northeastern question; but the senator
from that State who sits on my right (looking at senator WILLIAMS)
knows my opinion. He knows that I have long believed that nothing
could save the rights of Maine _but the war countenance of our
government_. Preparation for war might prevent war, and save the
rights of the State. This has been my opinion; and to that point
have all my labors tended. I have avoided speeches; I have opposed
all distributions of land and money; I have gone for ships, forts
and cannon--the _ultima ratio_ of Republics as well as kings. I go
for them now, and declare it as my opinion that the only way to
obtain our rights, and to avoid eventual war with England, is to
abandon all schemes of distribution, and to convert our public lands
and surplus revenue, when we have it, into cannon, ships and forts.
Hard pressed on the instructions to Mr. Crittenden--prostrate and
defenceless there--the gentlemen on the other side take refuge under
the letter to Mr. Fox, and celebrate the harmony of its periods,
and the beauty of its composition. I grant its merit in these
particulars. I admit the beauty of the style, though attenuated
into gossamer thinness and lilliputian weakness. I agree that
the Secretary writes well. I admit his ability even to compose a
prettier letter in less than forty days. But what has all this to
do with the question of right and wrong--of honor and shame--of war
and peace--with a foreign government? In a contest of rhetoricians,
it would indeed be important; but in the contests of nations it
dwindles into insignificance. The statesman wants knowledge,
firmness, patriotism, and invincible adherence to the rights, honor,
and interests of his country. These are the characteristics of the
statesman; and tried by these tests, what becomes of this letter, so
encomiastically dwelt upon here? Its knowledge is shown by a mistake
of the law of nations--its firmness, by yielding to a threat--its
patriotism, by taking the part of foreigners--its adherence to the
honor, rights and interests of our own country, by surrendering
McLeod without receiving, or even demanding, one word of redress or
apology for the outrage upon the Caroline!
The letter, besides its fatal concessions, is deficient in manly
tone--in American feeling--in nerve--in force--in resentment of
injurious imputations--and in enforcement of our just claims to
redress for blood spilt, territory invaded, and flag insulted.
The whole spirit of the letter is feeble and deprecatory. It does
not repel, but begs off. It does not recriminate, but defends. It
does not resent insult--not even the audacious threat--which is
never once complained of, nor even alluded to.
This letter is every way an unfortunate production. It does not
even show the expense and trouble we took to prevent our citizens
from crossing the line and joining the Canadian insurgents. It
does not show the expense we were at in raising a new regiment of
infantry expressly for that service (several voices said yes, yes,
it mentions that). Good, let it be credited accordingly. But it
does not mention the appropriation of $650,000 made at one time
for that object; it does not mention the numerous calls upon the
militia authorities and the civil authorities along the line to
assist in restraining our people; it does not mention the arrests of
persons, and seizures of arms, which we made; it does not mention
the prosecutions which we instituted; it does not show that for
two years we were at great expense and trouble to restrain our
people; and that this expense and trouble was brought upon us by
the excitement produced by the affair of the Caroline. The British
brought us an immense expense by that affair, for which they render
us no thanks, and the Secretary fails to remind them. The letter
does not repel, with the indignant energy which the declaration
required, that we had "_permitted_" our citizens to arm and join the
insurgents. It repels it, to be sure, but too feebly and gently,
and it omits altogether what should never be lost sight of in this
case, that the British have taken great vengeance on our people for
their rashness in joining this revolt. Great numbers of them were
killed in action; many were hanged; and many were transported to the
extremities of the world--to Van Diemen's Land, under the antarctic
circle--where they pine out a miserable existence, far, far, and for
ever removed from kindred, home and friends.
The faults of the letter are fundamental and radical--no beauty of
composition, no tropes and figures, no flowers of rhetoric--can
balance or gloss over. The objections go to its spirit and
substance--to errors of fact and law--to its tameness and
timidity--and to its total omission to demand redress from the
British government for the outrages on the Caroline, which that
government has assumed. She has now assumed that outrage for the
first time--assumed it after three years of refusal to speak; and
in the assumption offers not one word of apology, or of consolation
to our wounded feelings. She claps her arms akimbo, and avows the
offence; and our Secretary, in his long and beautiful letter, finds
no place to insert a demand for the assumed outrage. He gives up the
culprit subject, and demands nothing from the imperious sovereign.
He lets go the servant, and does not lay hold of the master. This
is a grievous omission. It is tantamount to a surrender of all
claim for any redress of any kind. McLeod, the culprit, is given
up: he is given up without conditions. The British government
assume his offence--demand his release--offer us no satisfaction:
and we give him up, and ask no satisfaction. The letter demands
nothing--literally nothing: and in that respect again degrades us as
much as the surrender upon a threat had already degraded us. This is
a most material point, and I mean to make it clear. I mean to show
that the Secretary in giving up the alleged instrument, has demanded
nothing from the assuming superiors: and this I will do him the
justice to show by reading from his own letter. I have examined it
carefully, and can find but two places where the slightest approach
is made, not even to a demand for redress, but to the suggestion of
an intimation of a wish on our side ever to hear the name of the
Caroline mentioned again. These two places are on the concluding
pages of the letter, as printed by our order. If there are others,
let gentlemen point them out, and they shall be read. The two
paragraphs I discover, are these:
"This government, therefore, not only holds itself above
reproach in every thing respecting the preservation of
neutrality, the observance of the principle of non-intervention,
and the strictest conformity, in these respects, to the rules of
international law, but it doubts not that the world will do it
the justice to acknowledge that it has set an example not unfit
to be followed by others, and that, by its steady legislation on
this most important subject, it has done something to promote
peace and good neighborhood among nations, and to advance the
civilization of mankind.
"The President instructs the undersigned to say, in conclusion,
that he confidently trusts that this and all other questions of
difference between the two governments will be treated by both
in the full exercise of such a spirit of candor, justice, and
mutual respect, as shall give assurance of the long continuance
of peace between the two countries."
This is all I can see that looks to the possible contingency of any
future allusion to the case of the Caroline. Certainly there could
not be a more effectual abandonment of our claim to redress. The
first paragraph goes no further than to "trust" that the grounds may
be presented which "justify"--a strange word in such a case--the
local authorities in attacking and destroying this vessel; and the
second buries it all up by deferring it to the general and peaceful
settlement of all other questions and differences between the two
countries. Certainly this is a farewell salutation to the whole
affair. It is the valedictory to the Caroline. It is the parting
word, and is evidently so understood by the British ministry. They
have taken no notice of this beautiful letter: they have returned
no answer to it; they have not even acknowledged its receipt. The
ministry, the parliament, and the press, all acknowledge themselves
satisfied--satisfied with the answer which was given to Mr. Fox,
on the 12th of March. They cease to speak of the affair; and the
miserable Caroline--plunging in flames over the frightful cataract,
the dead and the dying both on board--is treated as a gone-by
procession, which has lost its interest for ever. Mr. Webster has
given it up, by deferring it to general settlement; and in so giving
it up, has not only abandoned the rights and honor of his country,
but violated the laws of diplomatic intercourse. Outrages and
insults are never deferred to a general settlement. They are settled
_per se_--and promptly and preliminarily. All other negotiations
cease until the insult and outrage is settled. That is the course
of Great Britain herself in this case. She assumes the arrest of
McLeod to be an offence to the British crown, and dropping all
other questions of difference, demands instant reparation for that
offence. Mr. Webster should have done the same by the offence to
his country. It was prior in time, and should have been prior in
settlement--at all events the two offences should have been settled
together. Instead of that he hastens to make reparation to the
British--does it in person--and without waiting even to draw up a
letter in reply to Mr. Fox! and then, of his own head, defers our
complaint to a general settlement. This is unheard of, either in
national or individual insults. What would we think of a man, who
being insulted by an outrage to his family in his house, should say
to the perpetrators: "We have some outstanding accounts, and some
day or other we may have a general settlement; and then, I trust
you will settle this outrage." What would be said of an individual
in such a case, must be said of ourselves in this case. In vain do
gentlemen point to the paragraph in the letter, so powerfully drawn,
which paints the destruction of the Caroline, and the slaughter
of the innocent as well as the guilty, asleep on board of her.
That paragraph aggravates the demerit of the letter: for, after
so well showing the enormity of the wrong, and our just title to
redress, it abandons the case without the slightest atonement. But
that letter, with all its ample beauties, found no place to rebuke
the impressment and abduction of the person claimed as a British
subject, because he was a fugitive rebel. Whether so, or not, he
could not be seized upon American soil--could not even be given up
under the extradition clause in Mr. Jay's treaty, even if in force,
which only applied to personal and not to political offences. But
that letter, was for Buncombe: it was for home consumption: it was
to justify to the American people on the 24th of May, what had been
done on the 12th of March. It was superscribed to Mr. Fox, but
written for our own people: and so Mr. Fox understood it, and never
even acknowledged its receipt.
But gentlemen point to a special phrase in the letter, and quote it
with triumph, as showing pluck and fight in our Secretary: it is the
phrase, "bloody and exasperated war"--and consider this phrase as
a cure for all deficiencies. Alas! it would seem to have been the
very thing which did the business for our Secretary. That blood,
with war, and exasperation, seems to have hastened his submission to
the British demand. But how was it with Mr. Fox? Did it hasten his
inclination to pacify us? Did he take it as a thing to quicken him?
or, did the British government feel it as an inducement, or stimulus
to hasten atonement for the injury they had assumed? Not at all! Far
from it! Mr. Fox did not take fright, and answer in two days! nor
has he answered yet! nor will he ever while such gentle epistles are
written to him. Its effect upon the British ministry is shown by
the manner in which they have treated it--the contempt of silence.
No, sir! instead of these gentle phrases, there ought to have been
two brief words spoken to Mr. Fox--first, your letter contains a
threat; and the American government does not negotiate under a
threat; _next_, your government has assumed the Caroline outrage to
the United States, and now atone for it: and as to McLeod, he is in
the hands of justice, and will be tried for his crimes, according
to the law of nations. This is the answer which ought to have been
given. But not so. Instant submission on our part, was the resolve
and the act. Forty days afterwards this fine letter was delivered.
Unfortunate as is this boasted letter in so many respects, it has a
further sin to answer for, and that is for its place, or order--its
collocation and connection--in the printed document which lies
before us; and also in its assumption to "enclose" the Crittenden
instructions to Mr. Fox--which had been personally delivered to
him forty days before. The letter is printed, in the document,
before the "instructions," though written forty days after them;
and purports to "enclose" what had been long before delivered. Sir,
the case of McLeod is not an isolation: it is not a solitary act:
it is not an atom lying by itself. But it is a feature in a large
picture--a link in a long chain. It connects itself with all the
aggressive conduct of Great Britain towards the United States--her
encroachments on the State of Maine--her occupation of our territory
on the Oregon--her insolence in searching our vessels on the coast
of Africa--the liberation of our slaves, wrecked on her islands,
when in transition from one part of the Union to another--her
hatching in London for the Southern States, what was hatched there
above forty years ago for San Domingo: and the ominous unofficial
intimation to our aforesaid Secretary, that the federal government
is bound for the European debts of the individual States. The
McLeod case mixes itself with the whole of these; and the success
which has attended British threats in his case, may bring us threats
in all the other cases; and blows to back them, if not settled to
British liking. Submission invites aggression. The British are
a great people--a wonderful people; and can perform as well as
threaten. Occupying some islands no larger than two of our States,
they have taken possession of the commanding points in the four
quarters of the globe, and dominate over an extent of land and
water, compared to which the greatest of empires--that of Alexander,
of Trajan, of the Caliphs--was a dot upon the map. War is to them
a distant occupation--an ex-territorial excursion--something like
piracy on a vast scale; in which their fleets go forth to capture
and destroy--to circumnavigate the globe; and to return loaded
with the spoil of plundered nations. Since the time of William
the Conqueror, no foreign hostile foot has trod their soil; and,
safe thus far from the ravages of war at home, they are the more
ready to engage in ravages abroad. To bully, to terrify, to strike,
to crush, to plunder--and then exact indemnities as the price of
forbearance--is their policy and their practice: and they look
upon us with our rich towns and extended coasts, as a fit subject
for these compendious tactics. We all deprecate a war with that
people--none deprecate it more than I do--not for its dangers, but
for its effects on the business pursuits of the two countries, and
its injury to liberal governments: but we shall never prevent war
by truckling to threats, and squandering in douceurs to the States
what ought to be consecrated to the defence of the country. The
result of our first war with this people, when only a fifth of our
present numbers, shows what we could do in a seven years' contest:
the result of the second shows that, at the end of two years, having
repulsed their fleets and armies at all points, we were just ready
to light upon Canada with an hundred thousand volunteers, fired by
the glories of New Orleans. And in any future war with that nation,
woe to the statesman that woos peace at the repulse of the foe. Of
all the nations of the earth, we are the people to land upon the
coasts of England and Ireland. We are their kin and kith; and the
visits of kindred have sympathies and affections, which statutes and
proclamations cannot control.