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.