The Madisonian. [volume] (Washington City [D.C.]) 1837-1845, 1841-06-05

Die 10 the laws and iounais OF any foreign country
The President is not certain that he understands
precisely the meaning intended by Her Majesty .
Government 10 be conveyed by the foregoing nstruc
ton.
This doubt has occasioned with the President some
hesitation but he ncnes TO take It for granted tnal
the main purpose of the instruction to cause II TO
I've signifed to the Government of the United states
that the attack on the steamboat Caroline" was an
act Of public force, done by the British colonial autno
rites and fully recognized by the Queens Govern
ment at home, and that consequently no inds'uIa,
concerned in that transaction can, according TO the
Just principle Of the laws of nations be h. Id person
ally answerabe in the ordinary courts Of law as oT
private offence; and that upon this avowai OF ner
Maesty's Government Alexander Mcleod, now iuf
prsoned on an indictment for murder alleged 10 nave
been committed in that attack ought TO be released
by such proceedings are usual and are suitable 70
the case.
The President adopts TIE conclusion that nothing
more than this could have been intended TO DC
ed from the consideration that Her Majesty Govern
ment must be fully that in the United STATES
as in England persons confined under judicial process
can be released from that confinement only py
process In neither country, as the undersgneu sup
poses, can the arm of the Executive power iheeie'
directly or forcby release deliver the prisoner
His discharge must be sought in manner coniorma-
BILE to the principles of law and the proceedings OF
courts Of judcature. Ii an indictment me that
which has been found against Alexander MCLEOD,
and under circumstances like those when peiong -
the courts OF England there is no doubt that the law
officer Of the Crown might enter noile prosequ OF
that the prisoner might cause himself to be brought
up on habeas corpus and discharged II his ground O.
discharge should be adjudged sufficient, or that ne
might prove the facts and insist on the same de-
fence or exemption on is trial.
All these are legal modes ofproceeding, well known
to the laws and practice of both countries. But the
undersigned does not suppose that, II sucn case
were 10 arise in England the power of the Executive
Government could be exerted in any more direct man
ner Even in the case of Ambassadors and other
public Minister'S whose right TO exemption from ar
rest is personal requiring fact to be ascertained but
the mere fact Of Diplomatic character and TO arrest
whom is sometimes made highly penal offence, fthe
arrest be actually made it must be discharged by ap
plication to the courts of law.
It'll understood that Alexander Mcleod is holden
well civil criminal process for acts alledg-
ed to have been done by him in the attack on the
" Caroline, and his defence or ground of acquttal
must be the same in both cases AMI this strongly
illustrates as the undersigned conceives the prope-
ty Of the foregoing observations since i Is quite clear
that the Executive Government cannot interfere TO
arrest civil suit between private parties in any stage
judicial termination If therefore, any course different
from such as have been now mentioned was in con-
temptation Of Her Majesty's Government, something
would seem 10 have been expected from the Govern
ment Of the United States little comfortable to the
laws and nsages Of the English Government as to
those Of the United States and to which this Govern
ment cannot accede.
The Government Of the United States, therefore,
acting upon the presumption which i already adopted
that nothing extraordinary or unusual was expected
or requested of it, decided, the reception Of Mr.
Fox's note, to take such measures as the occasion
and its own duty appeared TO require.
liz his note TO Mr.. Fox Of the 26th of December
last Mr. FoRsYTH the Secretary of State of the Unit
ed States, observes that If the Obstruction Of the
Caroline was public act of persons in her Males
TVS service obeying the order Of their superior au-
thortes this fact has not been before communicated
to the Government ofthe United States BY aperson
authorized to make the admssion and II will be for
the court which has taken cognzancc of the offence
with which Mr. Mcleod is charged TO decide upon
its validity when legally established before it, and
adds /" The President deems this to be proper oc-
casion to remind the Government of Her Britannia
Majesty that the case Of the Caroline has been long
since brought to the attention Of her Maestys prnci
bal Secretary of State for Foreign Affairs, who up
10 this day. has not communicated his decision there
npou Its hoped that the Government of Her Ma
esy will perceive the importance of longer leaving
the Government of The United States uniformed of
its views and intentions upon subjects which has
naturally produced much evaporation, and which has
led to such grave consequences.
The communication the fact that the destruction
Of the Caroline was an act Of public force by the
British authorities being formally made to the Go
vernment Of tho United States by Mr. Fox's note,
the case assumes decided aspect
The Government Of the United States entertains no
public transaction, authorized and undertaken by the
British authorities individuals concerned in it ought
not by the principles Of public law and the general
usage Of civilized States to be holden personally
sponslble in the ordinary tribunals oflaw for their
participation in it. And the President presumes that
Il can hardly be necessary say that the American
People not distrustiul OF their ability TO redress pub
lie wrongs by public MEANS cannot desire the punish
ment Of individuals when the act complained OF is de-
cared to have been an act of the Government itself
81 Iat xf M ENoxy,s inetr,
ton was given the Attorney General of the United
States from this Department by direction of the Pres
dent, which fully sets forth the opinions OF this Go
vernment on the subject of Mr. McLeod's imprison-
ment copy of which instruction the unde signed has
the honor herewith to enclose
The Indictment against Mcleod is pending in Q
State court; but his rights whatever they may be-
are no less safe is to be presumed than If ne were
holden TO answer in one of the courts OF this Go
vernment.
He demands immunity from personal responsibility
by virtue Of the law Of nations and that law in civil
lied States is be respected in all courts None ii
either SO high low as 10 escape from its author
~ in cases TO which its rules and principles apply.
This Department has been regularly informed, by
his excellency the Governor of the State Of New
York. that the Chief Justice of that State was as
signed to preside at the hearing and trial of
case hut that owing TO error or mistake in the
process Of summoning the jury, the hearing was ne
cessarily deferred.
The President regrets this occurrence, as he has
desire for speedy disposition of the subject The
counsel for Mcleod have requested authentic evi-
dence Of the avowa by the British Government ofthe
attack on and destruction of the Caroline" acts
done under its authority, and such evidence will be
furnished to them by this Department.
Ii is understood that the indictment has been re-
moved into the Supreme Court Of the State by the
proper proceeding for that purpose and that it is now
competent for Mcleod, by the ordinary process Of
habeas corpus, TO bring his case for hearing before
that tribunal
The undersigned hardly needs to assure Mr.. Fox
that tribunal eminenty distinguished for ability
and learning as the Supreme Court of the State o.
New York may be safely relied upon for the just and
impartial administration Of the law in this well
in other cases; and the undersigned repeats the ex
preston Of the desire Of this Government that de-
lay may be suffered to take place in these proceedings
which can be avoided. OF this desire, Mr.. Fox vii
see evidence in the instructions above referred to.
The undersigned has now to signify to Mr.. Fol
that the Government Of the United States has mol
changed the opinion which il has heretofore expressed
10 Her Maiestys Government Of the character of The