"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.