Thirty Years' View (Vol. II of 2)

The friends of Mr. Webster had a fashion of extolling his intellect when his acts were in question; and on no occasion was that fashion more largely indulged in than on the present one. His letter, superscribed to Mr. Fox – brought out for home consumption forty days after the satisfactory answer had been given – was exalted to the skies for the harmony of its periods, the beauty of its composition, the cogency of its reasons! without regarding the national honor and interest which it let down into the mud and mire; and without considering that the British imperious demand required in the answer to it, nerve as well as head – and nerve most. It was a case for an iron will, more than for a shining intellect: and iron will was not the strong side of Mr. Webster's character. His intellect was great – his will small. His pursuits were civil and intellectual; and he was not the man, with a goose quill in his hand, to stand up against the British empire in arms. Throughout the debate, in both Houses of Congress, the answer to Mr. Fox was treated by Mr. Webster's friends, as his own; and, no doubt, justly – his supremacy as a jurist being so largely deferred to.

The debate in the House was on the adoption of a resolution offered by Mr. John G. Floyd, of New York, calling on the President for information in relation to the steps taken to aid the liberation of McLeod; and the fate of the resolution was significant of the temper of the House – a desire to get rid of the subject without a direct vote. It was laid upon the table by a good majority – 110 to 70. The nays, being those who were for prosecuting the inquiry, were:

Messrs. Archibald H. Arrington, Charles G. Atherton, Linn Banks, Henry W. Beeson, Benjamin A. Bidlack, Samuel S. Bowne, Linn Boyd, Aaron V. Brown, Charles Brown, Edmund Burke, Reuben Chapman, James G. Clinton, Walter Coles, Edward Cross, John R. J. Daniel, Richard D. Davis, Ezra Dean, William Doan, Andrew W. Doig, Ira A. Eastman, John C. Edwards, Charles G. Ferris, John G. Floyd, Charles A. Floyd, Joseph Fornance, James Gerry, William O. Goode, Samuel Gordon, William A. Harris, John Hastings, Samuel L. Hays, Isaac E. Holmes, Jacob Houck, jr., George S. Houston, Edmund W. Hubard, Charles J. Ingersoll, William Jack, Cave Johnson, John W. Jones, George M. Keim, Abraham McClellan, Robert McClellan, James J. McKay, John McKeon, Albert G. Marchand, Alfred Marshall, John Thompson Mason, James Mathews, William Medill, John Miller, Christopher Morgan, Peter Newhard, William Parmenter, Samuel Patridge, William W. Payne, Arnold Plumer, John Reynolds, Lewis Riggs, Tristram Shaw, John Snyder, Lewis Steenrod, George Sweeny, Thomas A. Tomlinson, Hopkins L. Turney, John Van Buren, Aaron Ward, Harvey M. Watterson, John Westbrook, James W. Williams, Henry A. Wise, Fernando Wood.

The same subject was largely debated in the Senate – among others by Mr. Benton – some extracts from whose speech will constitute the next chapter.

CHAPTER LXXVI.

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."