^ ^^, ^. IMAGE EVALUATION TEST TARGET (MT-3) j.U I" ■ I.I 1.25 2.8 1^ 1^ Hi Uk ^ 1^ 2.2 - 6" 2.0 1.8 U IIIIII.6 %^ 4^ >> <^^. d? / /A PhotDgraphJc Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) S72-4503 a\ V ■1>^ :\ \ ' (meaning "CON- TINUED"), or the symbol V (meaning "END"), whichever applies. Les images suivantes ont 6t6 reproduites avec le plus grand soin. compte tenu de la condition at de la netteti de l'exemplaire film«, et en conformity avec les conditions du contrat de filmage. Les exemplaires originaux dont la couverture en pcpier est imprimie sont film6s en commenpant par le premier plat et en terminant soit par la derniire page qui comporte une empreinte d'imoression ou d'illustration. soit par le second plat, salon le cas. Tous les autres exemplaires originaux sont filmAs en commen^ant par la premidre page qui comporte une empreinte d'impression ou d'illustration et en terminant par la dernlAre page qui comporte une telle empreinte. Un des symboies suivants apparattra sur la derniAre image de cheque microfiche, seion le cas: le symbols — ► signifie "A SUIVRE" le symbols V signifie "FIN ". Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate tho method: Les cartes, planches, tableaux, etc., peuvent dtre film^ls d des taux de rdduction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seui clich6, il est filmd d partir de I'angle supArieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images n6cessaire. Les diagrammes suivants illustrent la m6thode. 1 2 3 1 2 3 4 5 6 A LETTFJR TO Tiri': RIGHT HON. LOJID ASHBURTON, RUGGRSTKD HY THr. QUESTIONS <)i INTERNATIONAL LAW, RAISED IN THE MESSAGE OF THE AMERICAN PRESIDENT. BV ROBERT PHILLIMORE, ADVOCATE IN DOCTORS COMMONS, AND LATE STUDENT OF CHRIST CHURCH. '• Ncc ullum, satis validiim imperium erat coerccndis seditionibus populi, flagitia hominum ut cjeriinonias Deuin piotegentis." Taciti Annales, 1. iii.c. 60. LONDON : J. HATCHARD AND SON, 187, PICCADILLY 1842. SYNOPSIS. Introduction — Sanctity of the Law of Nations — Questions at issue between Great Britain and the United States — Self-preservation and inviolability of territDry principles of public law — Prefer- ence given to the former in case of conflict— Authorities — A State may virtually as well as literally declare its inability to control its subjects— Authorities and illustrations on this point — 1, De- struction of the Caroline justified; 2. Macleod's case; 3. Ameri- can liag abused to cover the Slave Trade; 4. Boundary (pies- tion — Conclusion. LONDON: I RIN 1 1 D BY n. .1. PAI.MFR, SAVOY STRFFT. A LETTER, &c. My Lord, The principal questions at issue between Great Britain and the United States of North Ame- rica, which it is the object of 3'our lordship's mission to adjust, involve a consideration of the principles of that law which has necessarily oc- cupied a large sharge of my professional studies. I therefore hope to be excused for the liberty of addressing, in the form of a letter to your lordship, some reflections on those parts of the recent Message of the American President, which relate to the existing differences between the Cabinets of Washington and St. James. And it may, perhaps, be permitted to me, before I enter upon the discussion of these particular topics, to offer a few preliminary remarks upon the general B 2 mafvnitudc and importance of tlic subject en- trusted to your lordship's negociation. The increasing reverence paid in modern times to that part of morality which regulates the in- terconrse of independent states, is not the least among the many circumstances which mark the progress of Christendom in refinement and civi- lization. It is the glory of the age in which we live, that the principles of international law have acquired the precision and stability of positive enactment. It may be true, that despite has been occasionally done to these principles, but so may the precepts of municipal law be sometimes evaded or infringed in countries where they are generally cherished and obeyed. It may be true that signal violations of this law are written on the page even of recent history, but he has been a careless and indocile reader who has not per- ceived that they are written for our admonition. The events of the last seventy years are franght with lessons, that such violations are sooner or later avenged on the heads of those who perpe- trate them. In every instance the severest mea- sures of retributive justice have amply vindicated the eternal majesty of that law, which, for pur- poses of short-sighted selfishness, had been tram- pled underfoot ; and, in spite of certain excep- tions, the Law of Nations has been for many years, and is at this moment, very generally I cultivated and respected ; its power has been upheld and acknowledged even by those who have broken tlirough its obligations, inasmuch as they have invariably sought to shelter their infractions under some misinterpretation of its letter, or some partial and distorted construction of its spirit, rather than under an open defiance of its principles. No nation can now venture openly to despise its sanctions. Such, indeed, have been, in former times, the attempts of arbitrary will, conscious that its condem- nation was to be found in the digests of those great writers, whose deep thought and irresis- tible reason it strove to ridicule as the science of theoretical pedants. It is not so now. While the commonwealth of Christendom is true to itself, no power can be so absolute as to defy with impunity the decisions of this tribunal. There is a growing conviction among the wise and good in both hemispheres, that to the con- science of nations may be applied the profound and beautiful remark on the conscience of indi- viduals, " Had it strength as it had right ; had it power as it had manifest authority, it would absolutely govern the world."* To enumerate the various causes which may have contributed to this desirable result, would be without the scope and exceed the limits of these remarks, * Bishop Butler, Sermon III., on Human Nature. G but among them would certainly be reckoned the rise of independent states on the other side of the Atlantic, various in their forms of govern- ment, advancing daily in commercial wealth and national greatness, rich in the elements of moral power, and though comparatively unprovided with the equipment of immediate war, aflbrding at all times a powerful means of adjusting, by their alliance or interposition, the equipoise of the civilized world. To no people can the main- tenance of International Law, the vital principle of which is, that neither the form of government nor the relative strength or weakness of king- doms, creates any distinction of right, be of nearer interest or greater importance. ** Quoique les Americains, (says their eloquent panegyrist,) soient pour ainsi dire seuls sur le continent, !e commerce leur donne pour voisins tons les peuples avec lesquels ils traffiquent, Malgre leur isole- ment apparent les Americains ont done besoin d'etre forts."* In the North American Re- public we accordingly find a very general study of jurisprudence, and we are indebted to their citizens for many treatises f on the Law of Na- tions, valuable, even if they had no other merit, * De Tocqueville, de la Democratie en Amerique, tome iii. p. 223. \ See the Commentaries of Mr. Chancellor Kent, Mr. Justice Storey, and Mr. Wheaton. I 'I I (*i i for their tendency to imbue the pubh'c mind with the elements at least of this science, however much the thorough mastery of it may belong to an intimate acquaintance with the original writers, whose appearance deters from their perusal a fastidious epitome-loving age, impatient of prolixity, and intolerant of the ponderous volumes which contain the fruits of their wisdom. Now if it be the interest as well as the duty of the United States of America to ex- hibit a practical obedience to the law of nations towards all countries, it is most especially so in their conduct towards Great Britain. It is al- most needless to say that the converse of this proposition is true, that the observation is equally applicable to England, that the coincidence of duty and interest is not less palpable in her case than in that of North America. For to pass over the ties of affinity, of common origin, com- mon language, many common institutions, and a most closely interwoven commercial interest, it is sufficient to observe that these two countries have conterminous possessions, and therefore every infraction of right cannot fail to be immediately felt and resented, while its con- sequences may be incalculable. To avert, in- deed, so horrible a calamity as war between two countries under such relations to each other, it would become the magnanimity of both to pass I 8 over many little affronts, many petty })rovoca- tions, wliicli might arise from the imliseretion or insuhordination of their respective subjects. Their honour stands on too firm a basis to be blown away by the breath of every hot-headed and ignorant babbler, or to be injured by the in- significant and unauthorised misdemeanors of the outcasts of society, whose interest is havoc, and whose delight is confusion. But it must be admitted that there are offences which may not be so treated — offences for which a country which did not seek and enforce reparation would forfeit all reputation among civi- lized nations, and as an infallible consequence invite oppression, would lose all security for national independence, and retain the name with- out the reality or benefit of peace. It cannot, I think, be denied, that the oflPences which are at this moment the subject of com- plaint and remonstrance between the United States and Great Britain are of this description. They charge* us with the grievous crime of violating a most sacred national right — the independence of a pacific territory — and of ac- companying the outrage with the aggravated circumstances of destroying the lives and pro- perty of their subjects. We, on the other hand, bring against th sm the accusation of receiving, * See extract from the recent Message of the American President in the Appendix. 'M .4 J I /I 9 fosterinj^, and nbottino' traitors In open arms against their sovereign, llie alUj of Anieriea ; and of ini[)risoning for several months, and nlti- niately trying for his life, a British ollieer, for obeying the commands of his hivvfnl superior, and of continuing to do so after it had been formally notified to them that the act for which this treatment was inflicted, was not the act of an individual, but of his Government. Much irrelevant virulence and idle declamation has been expended on these subjects, but there is only one tribunal before which independent states can plead — and this is, the Law of Nations : in order to obtain its decision, we must first state the facts of the case, and then apply to them the principles of that law. First, then, as to the facts of the case. Towards the close of the year 1S37,* a small portion of the hahitans qI Lower Canada, a vir- tuous and well-disposed peo])le, whose ignorance and simplicity rendered them an easy prey, were instigated by the restless machinations of certain disaffected demagogues, to rebel against their lawful and constitutional Government. The revolt was suppressed in a few weeks from * Gee tlie Annual Register for 18i38 ; and Dispatches from Sir F. i5. Head, Bart., KC.B., relative to Canada, ordered by the Mouse of Commons to be printed 22nd March, 1839. See extracts in Appendix. 10 its commencement with a very inctmsiderable loss of life to the king's troops. The deluded people found themselves generally deserted by the cowardly traitors who had instigated them, and returned, with dearly-bought experience, to their former allegiance. In the meanvvhile the spirit of mercenary sedition (for it deserved no other name) had with difficulty blown into a flame some sparks of disaffection in the uppy j)r(;viuce of Canada, whicli borders upon the territory of the United States. This attempt wa: more abortive than the one already mentioned ; it met with no kind of sympathy from the mass of the people of the province, who v/ere, as the result proved, sincerely attached to the British constitution. The loyalty and fidelity of the native militia and volunteers, unaided by any regular forces, quickly dispersed the rebels. This outbreak took place on the 29th of November ; and on the 8th of December the governor of the province dismissed the greater part of the militia. The chief action was at a place called Montgomeries' Tavern, near Toronto, which was not attended with loss of a single man to the royalists. The Drisontrs were immediately re- leased and dismissed to their homes, and before the lapse of a week perfect tranquillity was restored to the province — with one memorable exception — in the river of St. Lawrence, v.Jirjh » I 11 1 1 m separates the state of New York from Ujipor Canada, lies a small wooded island, called Navy Island, belonging to the latter countr}'. On the 13th of December, this spot was seized by a large body of armed men, among whom some, indeed, were Canadian rebels, but bv far the greater part were citizens of the United States.* In order to throw some light on this unparalleled outrage, we must for an instant retrace our steps in this narrative. After the total rout of the rebels, on the 8th of December, at Montgomeries' Tavern, the leader and instigator of the tumult deserted, like his brethren in Lower Canada, tiie people who he had seduced from their allegiance, and took refuge in the county of Buffalo, in tiie state of New York. During the interval which elapsed, between the 8th and 13th of December, he had succeeded in stimulating a large body of evil-minded and reckless American adventurers to attempt the invasion of Upper Canada, allur- ing them by the hopes of becoming possessors of that territory, which was to be divided, ac- cording to their public proclamation, as so much booty amongst them. Great numbers of American citizens publicly enlisted as soldiers with this avowed object ; no * See Dispatches of 8ir F. B. IJetu', already refbrred to, No. 69, p. 471, Gth March, 1838 ; and Message of the Pre- sident of the United States, Dec. 4, 1838. 12 li concealment was pretended : meetings were convened, arms and provision openly distributed for the purpose. To crown all, (tliougii so flagrant an outrage seems, at this moment, scarcely credible,) artillery and ammunitions were, in the face of day, taken from the arsenals of the i\merican Government, in order to be employed in acts of piratical aggression against the subjects and property of an ally with whom '* tJieij were desirous of maintaining the most friendly relations.''*^ But is it possible — some stranger to the events of this period will here exclaim — that the American Government took no measures to prevent or to punish proceedings so disgraceful to any civilised community ? And the answer must be, that jjractically no sucli measures were taken. Sundry proclamations were indeed issued discountenancing these outra- geous acts, and some kind of military demonstra- tion was made ; but no real or effective impe- diment, it will be seen, was thrown in the way of these piratical hostilities. To say that the American Executive was too feeble, and that these marauders knew and despised its prohibi- tions, is, as will be hereafter more largely shown, either no answer at all to a foreign state, or such a one, as, by the Law of Nations, justifies that December 4, 1838, in .J ' ; ■fc: I 1 'o'-J Lj)[)ei ul IX. ■ 13 [^ state ill a course of action otherwise indofensiblo. By tlic 13tli of December, Navy Island was filled with a numerous force of Americans, among- whom was a handful of Canadian rebels. Into this Bri- tish territory, without the slightest interruption from any constituted American authority, they transported from Buffalo, provisions, stores und artillery, the public property of the United States; they proceeded to throw up defences, and began a series of hostilities against the Canadian side of the river, and at last opened a fire of artillery upon that part which was most thickly peopled. All these proceedings, it may be observed, were strictly aggressive, not a single shot having been re- turned from the British frontier ; while throurih- out a lohole fortnight^ twenty-two pieces of cannon belonging to the American Government were employed in firing upon the subjects of Great Britain ; a landing place on the American shore, called Fort Schlosser, was the chief maga- zine from which they derived their supplies. On the 28th of December, the commander of the Canadian loyalists received undoubted intelli- gence that a small steamer, called the Caroline, had been hired by this body of American citizens and Canadian rebels, for the purpose of securing their communication with the main land, and had actually conveyed a small piece of artillery to the island. The resolution was immediately taken H'l' I ! •'. 14 to (lostroy tliis instrument of piracy. Never was an act of sigfial justice executed with more dis- tinguished gallantry* or in a si)irit of greater mercy. Two men who fired upon the British officers were of necessity cut down, the rest were driven from her deck, the vessel itself was set on fire, and precipitated down the Falls of Niagara. The consequences of this act were immediate ; the pirates fled from Navy Island, the plan of in- vading the Niagara frontiers was abandoned, and the unoffending inhabitants of UpperCanada, after a few more unsuccessful attempts of a like pira- tical character on other parts of the province, were restored to the blessmgs and tranquillity of peace. The proofs that these outrages were in reality perpetrated by American citizens, without whose aid, instigation, and generalship, the hand- ful of Canadian rebels would have sunk into insignificance, may be abundantly collected by the English reader from two distinct sources, the dispatches of the governor of Lower Canada to the British Government in 1838, and the messages of the American presidents in 1838 and 1839. In the appendix to these pages I have inserted * Yet to this day, Captain Drew, U.N., whose conduct is eulogised in the most glowing terms by the Governor of Upper Canada to the Home Government, has received from them no acknowledgment of his services. '(' Ie5 i extracts, the lengtli of whicli would disturb the course of my argument in this place. The fol- lowing citations will suffice for the present to establish the fact. ' It is proper,'* writes Sir F. Head to Lord Glenelg, * however, I should inform your lordship that as soon as I found that this portion of the British Empire was perfidiously attacked and assailed by American citizens under American leaders, termed *generals,' thatartillery and muskets were brought against us from the state arsenals, that Navy Island, belonging to her Majesty, was actually seized by Americans, that batteries were formed there, from which shots were fired for many days on the inoffensive in- habitants of this province, and that the Island was regularly supplied by boats from the American shore with provisions and munitions of war, &c. &c. While the gunboats were being prepared, the * American force, under the American commander stylinghimself General Von Rensalaar, continued day after day to fire from Navy Island upon the unoffending inhabitants of the Niagara frontier, although not a gun had been fired on the part of the British, although the American forces in that island were daily increasing, and although a steam-boat chartered by these pirates was actually employed in transporting to the island munitions of war, &c.' And again, in his address to the * Dispatches alread)/ referred to^ page 466. 16 I' n \Ui parliamont of Lower Canada, the oovcrnor re- marks, ' Wilh scarcely an exception, every go- * vernmcnt arsenal from Lake Cliamplain to Lake ' Michigan lias within the last two months been * broken open and plundered, to furnish arms for ' the invasion of this portion of the British * Empire ; and however the circumstances may ' be explained, it is certainly a remarkable fact * that all these robberies have been effected with- * out the sacrifice of a single life, and without * even the imprisonment of the person who is * notoriously the instigator of them.' The Presi- dent of the United States, in his message to the two houses of Congress, Dec. 4, 1838, remarks, ' I had hoped, that the respect for the laws * and regard for the peace and honour of their own * country, which have ever characterized the * citizens of the United States, would have pre- * vented any portion of them from using any means * to promote insurrection in the territory of a * power with which we are at peace, and with which * the United States are desirous of maintaining * the most friendly relations. I regret, deeply, ' however, to be obliged to inform you, that this * has not been the case. Information has been ' given to me, derived from official and other ' sources, that many citizens of the United States * have associated together to make hostile incur- ' sions from our territory into Canada, and to aid '' 17 * and abet insurrection there, in violation of the * obh'gations and laws of the United States, and *in open disregard of their own duties as citizens. * This information has been^ in part, corifirwed by * a hostile invasion actually made by citizens of * the United States, in conjunction with Canadians * and others, and accompanied by a forcible seizure ^ of the property of our citizens, and an applica- * tion thereof to the prosecution of military opera- * lions, against the authorities and people of Canada, * The results of these criminal assaults upon the * peace and order of a neighbouring country have * been, as was to be expected, fatally destructive ' to the misguided or deluded persons engaged in *them, and highly injurious to those, in whose * behalf they are professed to have been under- ' taken.' It is manifest then that the American Govern- ment was not in ignorance of these proceedings on the frontier, and therefore from a considera- tion of this short and simple statement of facts, only one of two conclusions can, I think, by possibility be deduced with respect to its conduct: 1. That being aware of the hostilities exercised by its citizens against Gr^i.t Britain, the Ame- rican Government did r ,t think proper to re- press them. 2. That although aware of, and anxious to repress them, it was })hysically unable to execute its intention. c ? If. ^.1 1' 1 18 Now, wliiclisoever of these hypotheses be true, Great Britain may look with confidence to the Law of Nations for a complete justification of her conduct. In the former case (which is too monstrous to be supposed, and is only stated for the sake of the argument) she would have been unquestionably authorized in making immediate war on the United States ; such conduct is pro- nounced* by all jurists to be one of the justest causes of war, and it would be an idle waste of time to accumulate authorities for the establish- ment of so self-evident a proposition. In the latter alternative, which should seem to have been that which actually occurred, we have to show that she was warranted by the Law of Nations in the destruction of the American steamer and in passing the boundary of the American frontier. Now the Law of Nations f '* grounded upon justice, equity, conscience, and the reason of the thing, and confirmed by long usage," undoubtedly ranks inviolability of territory among its most sacred principles, J but it is because this inviola- * See the shortest and clearest statement in Bynkershoek, Quaest. Jiir. Publ., 1. i. c. ix., " de statu belli inter non hostes." f See the Duke of Newcastle's celebrated answer to the Prussian memorial concerning neutral ships, drawn up by Mr. Murray, (Lord Mansfield) Sir G. Lee, and Sir Dudley Ryder, termed by Montesquieu, " reponse sans replique." - Lcttres Persannes, 1. xlv. X Vattel, 1. L>, c. 7, s. 93. i - ,!< 19 bility must, generally speaking, be an essential condition of national security. Self-preservation is considered as a primary object by all law, wbether of international for tlie state, or of muni- cipal for the individual. * Tous les hommes,' (says Vattel,* concisely expressing the opinion of his predecessors,) * et * tous les Etats ont un droit parfait aux choses sans ' lesquelles il ne peuvent se conserver, puisque ce * droit repond a une obligation indispensable.' And again rf * C'est en vain que la nature prer^crit * aux nations, comme aux particuliers, !e soin de *se conserver, celui d'avancer leur propre perfec- * tion, et celle de leur Etat, si elle ne leur donne * pas le droit de se garantir de tout ce qui peut * rendre ce memo soin inutile. Le droit n'est autre ' chose qu' une faculte morale d'agir, c'est-a-dire * de faire ce qui est moralement possible, ce qui * est bien et conform a nos devoirs. Nous avons * done en general le droit de faire tout ce qui est * necessaire a I'accomplissement de nos devoirs. * Toute nation^ comme tout homme^ a done le droit, ' de ne point souffrire qu une autre donne atteinte a ' sa conversation^ a sa perfection^ et a celle de son ' ctaty cest d-dircy de se garantir de tout lesion * (sec. 18). Cest ce droit de se garantir se toute ' lesion, que Ton appelle droit de srete^ Sec. S^'c, * Le (ni03^en) plus sur est de prevenir la mcd, * Vattel Preliminaires, vol. 1, page 49, oct. ed. t Vattel, 1. 2, c. 4, s. 19. r '^ 20 Hr 'ii .;i! •quand on le pent. Une nation est en droit de * resister au mal qu'on veut lui faire, d'opposer la * force, et tout moyen honnete tl celle qui agit * actuellement contre elle, et meme d'aller au- devant des machinations en observant toutefois de *ne point attaquer sur des soup9on9 vagues et in- * certains, pour ne pas s'exposer a devenir elle- * meme un injuste aggresseur. Quand le mal est * fait, le nienic droit de surete autorise Toffense h 'poursuivre une reparation complete et a y em- *ployer la force, s'il est necessaire/ And Kliiber* yet more forcibly : * L'ohligation de se * conserver soi-mhne Vemportant sur toutes les * autrcsj la lesion de quelque droit que ce soit doit * L'tre cxcnsce, si dans en cas de nccessite evidentCj * et absolue un Hat place entre quelque ohligation^ * envers un autre etat et celles que lui impose la * propre conservation donne la preference a la * dhniere, &c. &c.' So Vattel, speaking of a conflict of duties, says, ' Pour ce qui est des * lois en particulier, on doit sans doute la pre- *ferenceaux plus importantes et aux plus noces- 'saires. C'est ici la grande regie dans leur con- *flit, celle qui merite le plus d*attention ; et c'est * aussi celle que Ciceron met a la tete de toutes * les regies qu'il donne sur la matiere.* C'est *aller contre le but general du legi8lateur, contre * la grande fin des lois, que d'en negliger une de * Kluber, Droit des Gens, ch. i, p. 75. i!'h 1 4 21 *grande importance, sous pretexte d'en observer * line autre nioins interessante et nioins m'^cessaire. * C'est ptk'lier en effet ; car un nioindre l)ien, s'il * en exclut un plus grand, revet la nature du iiud." All the previous writers on International Law might he cited for the same purpose, viz. of proving that in such a conflict of duties, that of self-defence, sometimes called also the law of necessity, is para- mount to that of abstaining from the invasion of an independent territory. Sucii a conflict indeed, hap- pily for the peace of the world, can seldom arise. It is as clearly the duty of the injured nation, to seek, if it be possible, redress at the hands of the government of the off'ending party, as it is of an individual to have recourse to his magistrate in a case of domestic aggression. The case which * Primum igitur leges oportet contendere, considerando utra lex ad majores, hoc est, ad utiliores, ad honestiores, ac magls necessarias res pertineat. Ex quo conficitur, ut si leges duaj, aut si plures, quotquot erunt, conservari noii possint, quia discrepent inter se, ea maxime conservanda putetur, quae ad inaximas res pertinere videatur. — Cicer, ubi supra. Jure naturae vis injusta repellitur qua tenus vis, Jure Gentium qua tenus injusta. Ex Jure naturae licet propul- sare quodcunque inimicum est nullo discrimine aequi vel ini- qui ex Jure Gentium adhibito — Jus gentium duntaxat per- mittit se suaque tueri adversus ea quae inique et injuria in- feruntur. — Bynkershoek Observationes Juris Roraani, cap. ii. (vol. ii. quarto ed.) Tit. Propulsatio vis atque injuria quo sensu Juri Gentium tribuatur — in 1. 3 ft. dc Just, et Jud. ill tir'i Q'2 justifies the invasion of territory, must be, in tlic l;niii:iiis, quod salva amicitia non licet." — Bynkcrshoek Qua:stiones Juris Publici, 1. i. c. ix. 40 against a nation to whom she was bound by no common ties of amity ; she trusted that this de- fect in their constitution (a defect which, as it leaned to the excess of freedom, slie must regard uith an indulgent eye) would induce her legis- lature to administer the proper remedy, and she contented herself with only taking such steps as were absolutely necessary for her own security. Such conduct was worthy of a great and gene- rous nation ; she might reasonably have hoped that it would be so considered by the United States. But that a nation so leniently treated should formally complain of a violation of her strict territorial rights, recalls to our recollection the se- ver' comment of Tacitus on the abused asyla of the Greek temples, in which the outcasts of so- ciety found shelter irom punishment, and pre- pared fur the perpetration of new infamies : " Complebantur templa pessimis servitiorum eo- dem subsidio obaerati ad versus creditores, sus- pectique capitalium criminum receptabuntur, nee ullum satis validum imperium erat coercendis scditionibus populi flagitia homlnum ut ccerimonias Dehn protegentis.' I have said that Great Britain exercised a wise magnanimity in forbearing, under the cir- cumstances, to exact the full reparation to which her wrongs entitled her. J think so, because her 41 lionour (wliicli it must be remembered is the se- curity of nations) was in no wise tarnished. I wish the same opinion could be expressed with respect to the next injury, intimately con- nected with the foregoing circumstances, which she sustained at the hands of the United States — I mean the trial of Mr. Macleod. The particulars of this case have obtained too melancholy a noto- riety to need more than a brief statement in this place. This gentleman, some time subse- sequent to the transactions related in these pages, was arrested in the State of New York on a charge ')f murdering a man of the Caro- line, who was cut down while resisting the attack of Captai.i Drew. The British govern- ment, on receiving intelligence of his arrest, notified to the government of the United States that the seizure of the Caroline was a national act ordered and sanctioned by the government, and, consequently, for which, according to every principle of law ever yet heard of, the British Government was alone responsible. The American Executive demanded the trans- fer of the case from the court of New York to the Federal judiciary, (whether with the intention of releasing the prisoner or not is immaterial,) the court refused its application, and ufter many nmnths' confinement in prison, with the peril of d(;ath impending over him, Mr. Macleod was 42 III! !i!il KM Ill': m brought to trial and finally acquitted ; not because the seizure of the Caroline was an act of the British government and not of the individual, but be- cause Mr. Macleod was not present at or con- cerned in the event. Of course, the fact and grounds of the acquittal can in no way affect the question of this grievous violation of the Law of Nations^ — for such in truth it is. It is long since Christendom has seen an act more unjust in its theory, or more pernicious in its consequences. Its theory is, that th'^t subject is individually re- sponsible for being th', Urument of executing the commands of his lawful sovereign — a theory repudiated by every moralist, publicist, or states- man of every civilized land ; its consequences must be, to keep perpetually alive the most exa- cerbated feelings of hostility, to necessitate con- tinual war on the part of the state in defence of its subject, and to replunge nations into that bar- barity of feudal times, for their deliverance from which they were mainly indebted to the adoption of those wise and just principles of jurisprudence wliich consider the act of the subject executing the orders of his sovereign as matter of adjust- ment between the governments of states, and not of personal vengeance against the individual. Let us suppose that war had been promulgated between the United States and Great Britain at the time of the seizure of the Caroline ; that a 43 treaty of peace Iiad been subsequently concluded between tbe belligerent parties ; and t!iat, alter tlie conclusion of such treaty, tbe arrest and trial of Mr. Macleod had taken place. Such a glaring atrocity would require only to be stated to be condemned, and yet the principle is the same in the hypothetical case, as in that which has actually occurred. Great Britain forbore to execute her '* summum jus'* of war, but self-defence gave her, pro tanto, belligerent rights ; and the recognition by her government of the capture of the Crroline invested those concerned in that act with precisely the same character as if they had been the servants of a belligerent country. Our minister at Washington should have been directed, I must think, to demand his passport the very moment the liberation of Mr. Macleod had been refused. It must ever seem to me that the ruling powers of Great Britain aban- doned, in this instance, the most sacred obliga- tion of a government, the protection of an in- nocent subject, and forgot what was due to national honour and security, when they ab- stained from taking so just and so necessary a measure. A regard to truth, a deep veneration for the guardian principles of society, extorts from mc this reluctant avowal. Nevertheless, 1 must ob- serve that what it behoved Great Britain to have 44 done six months ago, and what it may become her to do now, form the subject of very different considerations. 'I'he peril which threatened the life of her subject has passed away, and the recent Message of the President gives other na- tions, (and all are equally interested in this matter,) reason to hope that by some * modifica- tion of her internal constitution, she is about to se- cure the civilized world against the recurrence of such an injury; this would be a substantial repa- ration for what I verily believe was an involun- tary wrong ; and it would be, I earnestly hope, an unmerited insult to her national character to suppose that she would refuse to accompany an act acknowledged by her to be one ** of pro- priety "t and *' necessity," with expressions of * De Tocqueville seems to have thought such a provision already existed. See his chapter " DifFerents cas de Juris- diction." " La personne et la matiere devinrent done les deux bases de la competence federale. Les ambassadeurs re- presentent les nations amies de I'Union ; tout ce qui inte- resse les ambassadeurs interesse en quelque sorte I'Union entiere. Lorsque un ambassadeur est partie dans un proces le proces devient une affaire qui touche un bien-etre de la nation — il est naturel que ce soil en tribunal federal qui pro- nonce." — La Democratie en Amerique, tom. i. p. 267. See also Kent's Commentaries, vol. i., part ii., lecture 14. f " In cases of this kind a government becomes politi- cally responsible only when its tribunals of last resort are shown to have rendered unjust and injurious judg- ments in matters not doubtful. (! !) "I cannot fail, how- ever, to suggest to Congress the propriety, and in some 45 I fe regret for the evil wliich the want of it had hitherto occasioned. It is not my intention to do more than refer to the other ohjects of your Lordship's mission. The boundary question has been already treated with great abihty, and a thorough knowledge of the subject in another publication,* and as it seems to be confessed on all sides, that the pro- visions of the original treaty are impracticable, there can be little doubt that two friendly coun- tries will agree de novo, upon such a line of demarcation as may satisfy the fair claims of both to the security of their frontiers. The more delicate and difficult question relating to the right of Great Britain to ascertain the sincerity of the flag^ admitted by the American ministers to be often fraudulently assumed for the purposes of screening guilt from detection and punishment — the right of Great Britain to prevent her subjects from violating her own laws by an additional violation of those of the United States, is fully degree the necessity, of making such provisions by law, so far as they constitutionally may do so, for the removal, at the commencement, and at the option of the party, of all such causes as may hereafter rise, and which may involve the faithful observance and execution of our international obli- gationSf from the state to the federal judiciary." — Message of American President for 1841. * See the articles in the Quarterly Review for March and December, 1841. 4r '•m discussed in tlie correspondence of tlie courts oi' St. James and Washington, recently laid before the public. But I cannot refrain from observing that, though I do not yield to Mr. Stevenson in admiration for that masterpiece of judicial elo- quence the case of " Le Louis," yet Lord Stowell's judgment is not exactly applicable to the present question. Lord Stowell in that case reversed the sentence of a Vice-Admiralty Court which had condemned a French ship for being employed in the slave trade, and for forcibly resisting the right of search claimed by the British cruisers. We do not claim a right to search American vessels for the purpose of ascertaining whether or not they have slaves on board, nor the right of condemning them and liberating the wretched objects of such nnholy traffic, if it prove to be the case. We claim only to verify the fact that they are American amd not British ti^aders^ or belonging to one of the Powers with whom we have a specific treaty, conferring on us the belligerent right which we do not pretend to exercise towards America ; and as Mr. Stevenson admits that we are entitled to ascertain that such parties do not violate the law, it is difficult to see how he can deny us the only means of doing so. It seems as little reasonable as to say, " This spot of ground may be yours, in which case you may exercise over it the full rights of a proprietor, but its pre- 47 sent occupier asserts that it is ours, and we deny your right to examine into the truth of his asser- tion/' Surely, according to every principle of reason, it would seem that a party interested in the observance of a law, should have the means of ascertaining the fact of its violation. I cannot believe that the United States will continue to exhibit their policy to the rest of the world, as alone among the nations of Christendom opposing a technical obstacle to the achievement of an unspeakable good, and the destruction of a frightful evil whi(;h she has herself repeatedly and vehemently denounced. I feel confident that the North American republic will be convinced that to present the spectacle of so discreditable an nnomaly to all other christian communities, is far too dear a price for the maintenance of a point of etiquette, and is inconsistent with the dignity and character of a great nation. With these observations, my Lord, I will close my remarks on the questions of international law, which are now pending between this country and the United States of America, and which have given rise to your Lordship's embassy. I should much regret if these observations had any other tendency than to facilitate, in however feeble a degree, the success of that mission. It is as far from my intention as it is beyond my power to sound *' the blast of war" upon this occasion. I have not 48 s Ir; ):■>■ '■'I endeavoured to blow the trumpet, or to deserve tlie epitaph of Misenus. It seemed to me that a calm investigation both of the facts relating to the cap- ture of the Caroline, (the princij)al subject of re- monstrance in the Message of the American President,) and of the principles of public law ap- plicable to these facts, would materially contribute to close the breach between the United States of America and Great Britain. Neither nations nor individuals are disarmed by being disen- cumbered of their passions ; and 1 thought that if the result of such an investigation should de- monstrate, as I humbly hope it has done, that England has conr^'jcted herself with singular forbearance and moderation under circumstances of no ordinary provocation towards her kinsfolk in the other hemisphere, that her ambassador would be entitled to a favourable hearing at Wash- ington, and that your Lordship's hands would be strengthened for the conciliatory purposes of your mission. And here I must observe, that your Lordship's appointment itself is not the least among the many evidences of the feelings of amity, respect, and goodwill entertained towards America by this country. That nation is held in no light estimation to whom we send, as the harbinger of reconciliation, the chief of the Medici of our country — the possessor of high rank and great wealth, versed in the ad minis- 4i I,!' abled ; and I much fear that one of his five wounds will require the amputation of his left arm. " This loss to a backwoodsman, upon wliose manual labour his family is dependent for support, is irreparable; and I feel confident that her Majesty's government will consider that as it is highly advantageous that the Queen should be enabled to call upon the retired naval officers in this province, whenever their professional services on the Lakes may suddenly be required, so it is not only just but politic, that if disabled they should not be allowed to suifer from privations, which might tend to deter others from following their noble and patriotic example. " Although naval or mihtary officers, when called upon by their government, are in no way responsible for the political consequences of the daring measures they are ordered to effect, yet 1 cannot help assuring your lordship that the capture of the Caroline has been pro- ductive of the most beneficial consequences. " Before it took place, American ' sympathy ' for our absconded traitors was unbridled and unchecked. " The state arsenals were openly plundered, subscrip- tions were openly collected, provisions as well as muni- tions of war were openly supplied; and while her Ma- jesty's government in Upper Canada was subjected to enormous expenses, and while the unoffending inhabi- tants of this province were kept in a state of painful anxiety, the inhabitants of the American frontier were actually amusing themselves at our sufferings, and were even making parties of pleasure for the purpose of in- specting the preparations on Navy Island. " No sooner, however, was the Caroline in flames t (il than a sudden excitornent prevailtd, but it was the ox- citoment o^fear. The women fled from tlie villages on the const, people who had fancied themselves hed-ridden decamped, and the citizens of Buffalo evinced the greatest possible consternation for the safety of their town. *' Immense expenses were immediately inrurred by the Americans for the purpose of self-defence ; and con- sidering how much Upper Canada had been obliged to expend on this principle, I trust your lordship 'vill admit that it was salutary, politic, and above all,y/Av/, to make our American allies participate in the lamoi table conse- quences of their own perfidy towards us, " Of course there were not wantinpf those v. bo argued that the excite^nent produced by thi'^ bold act of justice would irritate our assailants. However, it may be ob- served that it is impossible to make war palatoable to one's enemy, and that indeed it is not advisable it ^should be so. " The result has now spoken for itself. The pirates have fled from. Navy Island : tbeir plan of in- vading the Niagara frontier has been abandoned, and our allies, arrantly asliJ^med of themselves, are now irerely our enemies from that odd principle in human nature which invariably makes men hate and envy those whom their consciences tell them they have injured. " Our militia forces on the frontier have nearly all been allowed to retire to their homes ; but as the flotilla of boats requires to be guarded, and as I think it highly adviseable that some officer of experience should w'tch the naval movements of the Arrericans, 1 have directed Captain Drew, by two orders, (copies of which are here- 1 — —~ 1 '] \ G2 with enclosed,) to continue his pendant flying tinfil I shall have had time to communicate to your lordship. " As the expense of this precautionary observation will be very trifling, I would strongly recommend that it should be continued for at least a year ; for as several vessels are now building on the Lake, it would be pru- dent that we shoald have some one whose duty it is to ascertain whether any suspicious alteration is effected in their structure. ** Trusting that your lordship will offer to the lords commissioners of the Admiralty my apology in case I should have given any orders they may see reason to disapprove of, and that you will be so good as to lay be- fore them Colonel Macnab's recommendation in favour of Lieutenant Elmslie, a member of my executive council, to whose intrepidity 1 can myself bear tes- timony, " I have, &c. (Signed) **F. B. Head. '* The Right Hon. Lord Glenelg e» &c. &c. &c." III. Speech of Sir F, JB. Head to the'^Legislative Council at Toronto. " Honourable Gentlemen, and Gentlemen, " I regret to say that there still exists among a por- tion of the American people so strong a desire to force upon the free inhabitants of this province republican institutions, that with scarcely an exception every Go- C3 vernment arsenal from Lake Champlain to Lake Michigan, has within the last two months been broken open and plundered, to furnish arms for the invasion of this por- tion of the British Empire ; and however the circum- stance may be explained, it is certainly a remarkable fact that all these robberies have been effected without the sacrifice of a single life, and without even the im- prisonment of the person who is notoriously the instiga- tor of these acts. "The wrong which citizens of the neighbouring states have committed, by thus attempting to dictate to the inhabitants of Upper Canada the form of govern- ment under which they are henceforward to exist, will, as the assertion of a new theory, be condemned by the civilized world as severely as in practice it has been re- pudiated by the people of this province. ** What right, it will be calmly asked, have the in- habitants of one country, armed with the artillery and weapons oi" their Government, to interfere with the political institutions of another? What excuse, it will be gravely considered, had citizens of the United States for invading the territory of Upper Canada ? " When our coloured population vver^ informed that American citizens, sympathising with their sufferings, had taken violent possession of Navy Island, for the double object of liberating them from the domination of British Rule, and of imparting to them the blessings of republican institutions, based upon the principle tha: all men are born equal, did our coloured brethren hail their approach? — No! on the contrary, they has- tened as volunteers in wagon loads to the Niagara rontier to beg from me permission, that in the intended ()4 I .)!:' atUick upon N.ivy Island, they might he permitted to form the fi)rK)in hope; in bhort, they aiipplieated that they mi;;ht he uHowed to he foremost to defend the glo- rious institutioLs of Great liritain. *' When the mild ahorgines of this eontinont, who live among us uninjured and respected, were informed that citizens of the United Stites, disregarding the wampum hclt \vlu(!h was sacredly connecting them with Great Britain, had invaded our shores to sympathise with the 8ufibrin„s of the red tenants of the forest, and to offer them American friendship instead of the en- mity of British ndc, did our Indian brethren hail their aj^proach? No; their chiefs and warriors instantly painted their faces for battle, and wiih rifles in their hands these free-born defenders ot their native soil ap- peared before me with a solitary request, namely, that in case of their death, their wives and children might be pensioned. The Six Nations, Indians, the Missisa- guas, the Chippewas, the Hurons, and the Ottawas, spontaneously competed with each other in a determi- nation to die, if necessary, in defending the British Go- vernment, under whose parental protection they and their fathers had been born. " When the Canadian farmers and yeoman of British origin were mformed that citizens of the United States, sympathising with their sufl'erings, had in three in- stances taken forcible possession of her Majesty's terri- tory, for the purpose of liberating them from British domination ; that with this object in view the American leaders had issued proclamations, promising to each liberator three hundred acres of the best lands of Upper Canada, with one hundred dollars in silver ; t, 05 tliat the American self-Htyletl ^^eiieral in command <>t the liberators had called upon the citizens of Upper Canada * to free their land from tyrannyi * to raUij round the standard of liherty^* *to lay down their armsy in which case it was beneficently promised to them that Uhttt their pertanis and property should he proteetedi* a"d that if they vvouUl * cease resistance all would he well with them ,-' — did the Canadian inhabi- tants hail their approach ? No; on the contrary, their brave and loyal militia, although totally deprived of the assistance of her Majesty's regular troops, rose simul- taneously, and, regardless of every private considera- tion, wherever the invaders appeared thousands of bayonets were seen bristling on our shore ready to re- ceive them. On the eastern, as well as on the western frontier, but one feeling prevailed ; it was a noble deter- mination on the part of free men to conquer or die in the defence of their religion, their constitution, their character, their families, and their farms. Yet, notwith- standing their excited feelings, when the American citizens, who from an armed schooner had cruelly bat- tered the town of Amherstburgh, fell into the hands of the brave militia of the western district, (in which not a single rnbel had been in arms,) did these prisoners fall victims to popular fury, or were they even insulted? No; the instant our invaders surrendered to British power they experienced that mercy which adorns the British name ; their wounds were healed at our hospi- tals ; and from the western extremity of Upper Canada they were conducted unharmed through the province, safe under the protecting aegis of our laws. " When a band of rebels, defeated in their cruel ob- F ()(') !i I iJ; i;!;i|' n ject to reduce this capital to aahos in the -Icpth of a Canadian winter, wore, after the conflict at Gallows Hill, brought to nie as prisoners on the field, was any flistinction made between American born and our other Canadian subjects ? No ; all were released. Before the assembled militia of Upper Canada all were equally pardoned. And thou^n many of our brave men, smart- ing under feelings natural at the moment, evidently dis- approved of the decision, yet all bowed in obedience to the administrator of their laws ; and under the noble influence of monarchical government, they allowed their assailants to pass uninjured through their ranks. '' When the gallant inhabitants of the provinces of New Brunswick and Nova Scotia received intelligence that American citizens had commenced an attempt to free the British North American Colonies ''from the tyranny of British rule,' did they rejoi3e at the event? No ; a burst of loyalty resounded through their lands, and a general desire to assist us was evinced. " If Upper Canada was merely a young healthy province, with no })rotection on the continent of Ame- rica but its character, its industr}-, and the agricultural difficulties it has to contend with, its filial attachment to its Government, the bravery it has shown in its defence, and the mercy it has extended to its captured assailants, ought to be sufficient to make its aggressors ashamed of their late attempt to force upon their neighbour inst'tutions which they conscientiously and unequivocally reject. But when it is considered that Upper Canada is an integral portion of the British Empire, and that the two coun- tries are at this moment bound together by a solemn treaty of peace, the faithless attack of citizens of the 67 \ e United States upon the province, after it had com- pletely quelled a slight domestic insurrection, will, if persisted in, excite feelings among the generous nations of Europe, which will add hut little to the character of repubhcan institutions ; for surely the smile of a nation should not be more dreaded than its frown, or its ex- tended hand be more fatal than its uplifted arm, " When the facts just stated are clearly comprc' bended by intelligent men, how will the American citi- zens, who have so wantonly attacked the British Em- pire, find it possible to explain, that the province of Upper Canada required them to interfere in its con- cerns? ** But it now seems to be admitted that our invaders have been deceived, that they falsely estimated the Canadian people, and that they have at last learned that the yeomen, fai lers, militia, Indians, and coloured population of this pro. ..c, prefer British institutions to democracy : nevertheless, as an ex poste fticto excuse for the sinful and repeated invasion of the province, it is urged that the crew of the Caroline steam-boat, which was captured more than fourteen days after Navy Island had been forcibly taken from us, have been ' assassi- nated,' and that ' an extraordinary outrage ' has been committed upon the Americans by our militia, who so ably and gallantly cut out that pirate vessel. " If Navy Island had been violently taken possession of by Canadian rebels, instead of by a body of Ameri- cans, armed, fed, and commanded by American citizens, — if these Canadian rebels had then thought proper to invade the United States, to break open half a dozen of their State arsenals, to rob each of many hundred I- 2 08 ill I M r';:.i inn •X"f stand of arms, to plunder from the American Govern- ment twenty-two pieces of cannon, and to set the laws and authorities of the Republic at defiance, — could any reasonable man declare that we should offer, or that we could be supposed to intend to offer, any offence to our allies, if in a moment of profound peace we were to j)ursue in the Niagara river the guilty vessel which had transported to the island these American arms, and capture her, whether she were in British waters, in American waters, moored to the British shore or to the American shore ? Would it not be our bounden duty to the American people to capture this pirate vessel ? And if we were to fail to do so might not our allies hold us responsible for acts of such unprovoked aggression committed upon them by British subjects inhabiting a British island ? '* Again, supposing that the Americans were to co- operate with us (as under such circumstances of course they would have done) in chasing this pirate vessel, could it be supposed for a moment that each power would only be permitted by the other to capture her so long only as she continued in their own half of the river ; and that if our British boatmen, at the peril of their lives, were to capture the vessel in American waters or on the American shore, it would be considered by the Americans as a ' violent outrage?' There can be no doubt in the mind of any reasonable man, that we should only perform our duty to the Americans by destroy- ing a vessel belonging to our own islanders, which had so grossly insulted them, which had completely overpowered their Government, and which in a mo- ment of peace had so flagrantly violated the laws of 69 nations. And if we should be justified in capturing the vessel of our islanders, on account of the wi-on"-s they had perpetrated upon the American nation, surely we should have additional right to do so on our own account, if the twenty-two pieces of cannon forcibly wrested from the American Government had not only been employed for a fortnight in firing from the island upon the peaceable subjects of her Majesty, but to our certain knowledge were about to be transported to our main land for the purpose of committing murder, arson, and robbery, in this province. '* It is, however, declared by our allies, tliat because these lawless possessors of our island turned out to be American citizens, and because their own Government was totally unable to control them, the capture of the vessel by us became a ' violent outrage.' "It would not have been considered by them an outrage, had we by force of arms prevented Canadian islanders from violating American arsenals, from in- sulting American authorities', and from firing twenty- two pieces of the United States cannon upon British subjects ; but it is considered as an outrage for us to prevent an Ainerican vessel from enabling American citi- zens to commit these unparalleled aggressions. " In the history of this province the capture of the Caroline (whoever might have been her crew) will, I maintain, be respected by future ages as a noble proof of the sincerity of the Canadian people to fulfil their engagements by crushing a pirate force which, in viola- tion of existing treaties, was insulting from a British island their American allies, and which General Arcu larius, Governor Mason, Governor Marcy, the President '0 •, ill::. k i!!: 5!,, ';!■ ■'.> li.l. \i: I i:l J! \i in m m and Legislature of the United States, had absolutely found too powerful for the executive force of the lle- jmblic to control. *' The f.ict that the pirate force was composed of and commanded by American citizens adds to the aggression committed against the Canadians, but subtracts nothing from the crime of robbery perpetrated upon the United States arsenals, unless indeed the American people or the American authorities should deem it proper to declare that it was no robbery at all, for that the aggression was approved of, that the State cannon and State muskets were knowingly and wilfully lent to the invaders of Navy Island for the purpose of forcing republican institutions upon the people of Upper Canada, and that under these circumstances (which are incredible) the attack of Canadian militia upon the American citizens who were on board the Caroline was ' an extraordinary outrage' " But supposing for a moment this false reasoning lo be unanswerable, — supposing even that the commis- sion of the outrage were to be admitted by the Cana- dians, and that it were also to be admitted by them that the capture by Canadians of a small steam-boat moored to the American shore was an outrage equal in magni- tude to the capture of Navy Island by American citi- zens, — still, to make the Canadian outrage as flagrant as that which had been committed upon us by citizens of the United States, it would have been necessary for the Canadians, after they had taken posses^sion of the Caroline, to have fired from her deck with twenty-two pieces of cannon for more than a fortnight upon the American shore ; and even then, thou*-!! the outrages 71 would certainly have been rendered apparently equal, still the former would have been an outrage of retalia- tion upon an enemy, the latter an outrage of unprovoked attack upon a friend. " There are two facts which the American nation have not power to deny : — *' 1st. That it is their interest as well as tiieir duty to fulfil their treaties : " 2nd. That if their people be permitted to rob the United States' arsenals in order to invade a friendly power, the lawless body will very soon find out that it is easier to plunder their own wealthy defenceless citi- zens, than the poor, brave, well-armed people of Upper Canada. " I have felt it to be the especial duty of the legisla- tive station 1 hold, not only to protest against the un- principled invasion of this province by its allies, but to vindicate the inhabitants from the unreasonable accu- sation which without due inquiry was made against them by the federal government of the United States, of having * assassinated' the crew of the Caroline. " The memoir of the attack which has just been made upon us offers a moral to the rnothcr-country, which I feel confident will create throughout the empire consi- derable sensation ; for although the old country is not without its share of human misapprehension and preju- dice, particularly as regards its transatlantic possessions, yet, when ficts are clearly submitted to it, its judgment is always sound, and its verdict nobly impartial. " The struggle on this continent between monarchy and democracy has been a problem which Upper Canada has just solved. 72 !;:; f . r i ;■ m t 11* Ik: "It had been very strongly argued, even in England, that Democracy was the only form of government in- digenous to to the soil of America, and that Monarchy was a power which required here artificial support. " With a view to subvert this theory, the whole of the Queen's troops were allowed to retire from the pro- vince, and the result, as, had been anticipated, was that the people of Upper Canada were no sooner left uncon- trolled than they proclaimed themselves in favour of monarchical institutions, Surrounded by temptations on almost every side, they indignantly rejected them all. In a few hours they successfully put down insurrection in their own land ; and when American citizens, asto- nished as well as disappointed at their loyalty, deter- mined to force them to become Republicans, people of all religions and of all politics rushed to the frontier to die in defence of their glorious constitution. " The conduct of the militia of Upper Canada at- tracted the attention of the gallant and loyal inhabitants of New Brunswick and Nova Scotia, whose legislatures have done themselves, as well as this province, the honour of promptly expressing their unqualified appro- bation of the attachment which has been evinced here to the British constitution. " When these facts shall arrive before the English people, and when they shall also have taken into their consideration the devoted and unalterable attachment which the British population of Lower Canada have evinced for our revered institutions, surely they will come to the conclusion, that the concurrent opinions of her Majesty's North American Colonies respecting the I 73 relative advantages between monarchy and democracy in America must be sounder than their own can be, inas- much as eye-witnesses judge more correctly than people can possibly do who are living four thousand miles off. ** The people of England will, I trust, not fail to ad- mire the calmness, the resolution, the generosity, and the honourable subjection to their laws, which have dis- tinguished the inhabitants of Upper Canada; and, on"the other hand, they certainly cannot fail to observe, that the republican project of our English reformers, namely, to make the people bit by bit responsible only to them- selves, has ended in America by the Government of the United States confessing its total inability to restrain the passions of its citizens, to guard its State arsenals, or to maintain its <^.eaties with its oldest and most na- tural ally. '* Lastly, the British people will, I trust, observe with considerable alarm, that the leading advocates for organic changes in our institutions are either at this moment lying in our gaols as traitors, or, from having absconded are self-banished from the province ; in short, that their pretended efforts to obtain in Upper Canada what they called ' liberty for the people ' has ended in a most infamous and self-interested attempt to plun- der private property, rob the banks, and burn to ashes the rising capital of their country ! " With this experience before our eyes, I must con- fess I join with the legislature and people of Upper Canada in shuddering at the abused name of ' reform^' just as we now recoil with abhorrence when we hear sud- denly pronounced the word ^sympathy.' 74 [¥ }¥<■ " As my successor is hourly expected here, I return to the mother-country as I left it, totally unconnected with party or with politics : hut in retirement I shall remem- ber the lessons which the people of Upper Canada have taught me. And I feel it my duty to declare, that I leave the continent of America with my judgment perfectly convinced, that the inhabitants of Europe, Asia, and Africa are right in their opinion that all men are not by nature equal ; that the assertion of the contrary in America is a fallacy ; and that talent, industry, and character must elevate individuals as they do nations in the graduated scale of society. '* May the resplendent genius of the British Constitu- tion ever continue to illuminate this r.oble land, and, animated by its influence, may its inhabitants continue to be distinguished for humility of demeanour, nobility of mind, fidelity to their allies, courage before their enemy, mercy in victory, incegrity in commerce, reverence for their religion, and, ac all times and under all circum- stances, implicit obedience to their laws, " Honourable Gentlemen, and Gentlemen, farewell." !v( IV. Messaye of the American Preskleni at the close of the year IH.m "I had hoped, that the respect for the laws and re^^ard for the peace and honour of their own country, which have ever characterized the citizens of the United States, would have prevented any portion of them from using any means to promote insurrection in the terri- tory of a power with which we are at peace, and with which the United States are desirous of maintaininff the most friendly relations. I regret, deeply, however, to be obliged to inform you, that this has not been the case. Information has been given to me, derived from official and other sources, that many citizens of the United States have associated together to make hostile incursions from our territory into Canada, and to aid and abet insurrection there, in violation of the obligations and laws of the United States, and in open disregard of their own duties as citizens. This in- formation has been, in part, confirmed by a hostile invasion actually made by citizens of the United States, in conjunction with Canadians and others, and accom- panied by a forcible seizure of the property of our citizens and an application thereof to the prosecution of military operations, against the authorities and people of Canada. "The results of these criminal assaults upon the peace and order of a neighbouring country have been, as was to be expected, fatally destructive to the mis- guided or deluded persons engaged in them, and highly injurious to those, in whose behalf they are professed 7(5 I'.i ifii. I'll ',l.-l to have boon undcrtakon. The authorities in Canada, from intolhgonce received of Hnch intended movements among our citizens, have felt themselves obliged to take precautionary measures against them, have actually embodied the militia, and assumed an attitude to repel the irvasion to which they believed the colonies were exposed from the United States. A state of feeling on both sides of the frontier has thus been produced, which called for prompt and vigorous interference. If an insurrection existed in Canada, the amicable dispositions of the United States towards Great Britain, as well as their duty to themselves, would lead them to maintain a strict neutrality, and to restrain their citizens from all violations of the laws which have been passed for its en- forcement. But this Government recognizes a still higher obligation to repress all attempt on the part of its citizens to disturb the peace of a country, where order prevails, or has *jeen re-established. Depre- dations by our citizens upon nations at peace with the United States, or combinations for committing them, have, at all times, been regarded by the American Government and people with the greatest abhorrence. Military incursions by our citizens into countries so situated, and the commission of acts of violence on the members thereof, in order to effect a change in its government, or under any pretext whatever, have, from the commencement of our Government, been held equally criminal on the part of those engaged in them, and as much deserving of punishment as would be the disturbance of the public peace by the perpe- tration of similar acts within our own territory. " By no country or persons have these invaluable 77 principles of intcnintional law, principles, the Htrict observance of which is so indispensable to the preserva- tion of social order in the vvorUI, been more earnestly cherished or sacredly respected than by tho.se ^neat and good men who first declared, and finally established, the independence of our own country. They promulgated and maintained them at an early and critical period iu our history ; they were subsequently embodied in legis- lative enactments of a highly penal character, the faith- lul enforcement oi* which has hitherto been, and will, I trust, always continue to be, regarded as a duty inse- parably associated with the maintenance of our national honour. That the people of the United States should feel an interest in the spread of i)olitical institutions as free as they regard their own to be, is natural; nor can a sincere solicitude for the success of all those who are at any time, in good faith, struggling for their acquisi- tion, be imputed to our citizens as a crime. With the entire freedom of opinion, and an undisguised expression thereof on their part, the Government has neither the right, nor, I trust, the disposition, to interfere. But, whether the interest or the honour of the United States require that they should be made a party to any such struggle, and by inevitable consequence to the war which is waged in its support, is a question, which, by our constitution, is wisely left to Congress alone to decide. It is, by the laws, already made criminal in our citizens to embarrass or anticipate that decision by unauthorized military operations on their part. Offences of this cha- racter, in addition to their criminality, as violations of the laws of our country, have a direct tendency to draw down upon our own citizens at large, the multiplied 78 evils of u foHM^Mi war, and expose to injurious iinpu- tations the good faith ami honour of the country. As sucli they deserve to be put down with promptitude and decision. I cannot be nuHtakon, I am confident, in counting on the cordial and general concurrence of our fellow-citizens in this sentiment, A copy of the pro- clamation which I have felt it my duty to issue, is herewith communicated. I cannot but lu)j)o, that the good sense and })atriotistn, the regard for the honour and reputation of their country, the respect for the laws which they have t-liemselves enacted for their own government, and the love of order for which the mass of our people have been so long and so justly distin- guished, will deter the comparatively few who are en- gaged in them, from a further prosecution of such desperate enterprises. In the mean time, the existing laws have been, and will continue to be, faithfully exe- cuted, and every effort will be made to carry them out to their full extent. Whether they are sufficient or not to meet tho actual state of things on the Canadian frontier, it is for Congress to decide." lii If '::ii:. No. V. Messcif/e of the American President at the dose of the year 1830. " There is every reason to believe, that disturbances like those which lately agitated the neighbouring British provinces will not again prove the sources of border contentions, or interpose obstacles to the continuance of that good understanding which it is the mutual in- tcrcst of Great Britain and the United States to pre- serve and maintain. " Within the provinces thcMnselves tranquillity is re- stored, and on our frontier that misguided synipatiiy in favour of what was presumed to bo a general etlbrt in behalf of popular rights, and which in some instances misled a few of our more incxpcrieneod citizens, has subsided into a rational conviction strongly opposed to all internicddliii.',^ with the internal alVairs of our neigh- bours. The peo[)le of the United States feel, as it is hoped they always will, a warm solicitude for the suc- cess of all who arc sincerely endeavouring to improve the political condition of mankind. This generous feel- ing they cberish towards the most distant nations; and it was natural, therefore, that it sfiould be awakened with more than common vvarmti\ in behalf of their im- mediate neighbours. But it does not belong to their character, as a community, to seek the gratification of those feelings in acts which violate their duty as citi- zens, endanger the peace of their country, and tend to bring upon it the stain of a violated faith towards fo- reign nations. If, zealous to confer benefits on others, they appear for a moment to lose sight of the perma- nent obligations imposed upon them as citizens, they are seldom long misled. From all the information I re- ceive, confirmed to some extent by personal observa- tions, I am satisfied that no one can now hope to en- gage in such enterprizes without encountering public indignation, in addition to the severest penalties of the law. " Recent information also leads me to hope that the emigrants from her Majesty's provinces, who have sought m iiiJ- i pill lit' Hi 1; 80 refuge within our boundaries, are disposed to become peaceable residents, and to abstain from all attempts to endanger the peace of the country which has afforded them an asylum. On a review of the occurrences on both sides of the line, it is satisfactory to reflect, that in almost every complaint against our country the offence may be traced to emigrants from the provinces who have sought refuge here. In the few instances in which they were aided by citizens of the United States, the acts of these misguided men were not only in direct contravention of the laws and well-known wishes of their own government, but met with the decided disap- probation of the people of the United States. " I regret to state the appearance of a different spirit among her Majesty's subjects in the Canadas. The sentiments of hostility to our people and institutions, which have been so frequently expressed there, and the disregard of our rights which have been manifejted on some occasions, have, I am sorry to say, been applauded and encouraged by the people, and even by some of the subordinate local authorities of the provinces. The chief officers in Canada fortunately hav^e not entertained the same feeling, and have probably prevented excesses that must have been fatal to the peace of the two coun- tries, " I look forward anxiously to a period when all the transaotioud which have grown out of this condition of our affairs, and which have been made the subjects of complaint and rem.onstrance by the two governments respectively, shall be fully examined, and the proper satisfaction given where it is due from either side." I-..- a 81 VI. E.vtract from Message of American President, at the close of the year 1841. " I regret that it is not in my power to make known to you an equally satisfactory conclusion in the case of the Caroline steamer, with the circumstances con- nected with the destruction of which, in Decem- ber, 1837, by an armed force fitted out in the province of Upper Canada, you ar ; already acquainted. No such atonement as was due for the public wrong done to the United States for the invasion of her territory, so wholly irreconcilable with her rights as an independent power, has yet been made. In the view taken by this government, the inquiry whether the vessel was in the employment of those who were prosecuting an unautho- rised war against that province, or was engaged by the owner in the business of transporting persons to and from Navy Island in hopes of private gain, which was most probably the case, in no degree alters the real question at issue between the two governments. This government can neve concede to any foreign govern- ment the power, except in a case of most urgent and extreme necessity, either to arrest the persons or destroy the property of those who may have violated the muni- cipal laws of such foreign government, or have disre- garded their obligations arising imder the law of nations^ " The territory of the United States must be regarded as sacredly secure against all such invasions, until they shall voluntarily acknowledge their inability to acquit G IfiBHi 82 If; I IS I.I '/■ill m ti themselves of their duties to others. And in announ- cing this sentiment, I do but affirm a principle which no nation on earth would be more r^ady to vindicate at all hazards than the people and government of Great Britain. If, upon a full investigation of all the facts, it shall appear, that the owner of the Caroline was governed by a hostile intent, or had made common cause with those who were in the occupancy of Navy Island, then so far as he is concerned, there can be no claim to indemnity for the destruction of his boat, which the government would feel itself bound to prosecute, since he would have acted not only in derogation of the rights of Great Britain, but in clear violation of the laws of the United States. Bat that is a question, which, howvver settled, in no manner involves the higher consideration of the violation of the laws of territorial sovereignty and jurisdiction. To recognise it as an admissible practice, that each government in its turn, upon any sudden and unauthorised outbreak on a frontier, the extent of which renders it impossibl*^ for either to have an efficient forcv^ on every mile of it, and which outbreak, therefore, neither may be able t(> suppress in a day, may take vengeance into its own hands, and without even a commission, and in the absence of any pressing or over- ruling necessity, may lead them to violate the territory of another, would inevitably lead to results equally to be deplored by both. " When border collisions come to receive the sanction, or to be made on the authority of either government, general war must be the inevitable result. While it is the ardent desire of the 'Jnited States to cultivate the relations of peace with all nntioiiHi and to fulfil all the 83 duties of good neighbourhood towards those who ])ossess territories adjoining their own, that very desire would lead them to deny the right of any foreign power to in- vade their territory with an armed force." LONDON : PRINTED BY G. J. PALMER, 3AY0V STHEET, STRAND. "Vtefpppmvvnripi^g^ms^w