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 SPEECH 
 
 oi 
 
 MR. BARNARD, OF NEW YORK. 
 
 in UBiATiua TO 
 
 THE DESTRUCTION OF THE '' CAROLINE,' 
 
 Airo 
 
 THE CASE OF McLEOD. 
 
 Delivered in the Houbc of Kepresentutiveg, August 31, 1841. 
 
 WASHINGTON: 
 
 FRINTED AT THE NATIONAL. INTEl.LIGENCEB 0?riCB> 
 
 1841. 
 

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S P E K C IT. 
 
 THE AFFAIR OF THE CAROLINE AND THE McLEOD CASE. 
 I^r TiiK House of Rei-hesestativks, Almhst 31, 1811. 
 
 The House having under coiiHiileration a resolution calling on the President for inforint- 
 tion, Sic. — 
 
 Mr. BARNARD rose, and addrcssod tlie flouso as fdllows : 
 
 Mr. Si'K.AitEit: [ slcill speak to tln> parliciilar iiioril!) of ilie resolution on your 
 tablo as little, [trobahly, as any nieniber who has ineceded nio in this debate. In 
 trulli, sir, it must be a|»|)arent to all that this resolutioi) was introduced, originally, 
 chielly with a view to make it tlie occasion, not llie subject of a debate ; at any 
 rate, such lias been the result. 
 
 ''^Iie |)0(*iiions which iiad been taken by the Secretary of Slate, Mr. Webster, 
 in his correspondence wiili Mr. Fo,v, ilie ISriiish Minister, residing at Washing- 
 ton, in relation to the destruction of the " Caroline," and the case of McLeod, 
 were assailed at a very early day in the pr'^sent session. The war was begun in 
 the Senate, and it had no sooner ended there tlian it was revived and prosecuted 
 with new vigor in this Hall. Sir, since the last voice was heard on this floor, in 
 tones of condeiTination lowaids the Secretary, we have hud an authoritative opin- 
 ion pronounced on the same subject by the Judges of tiie Supreme Court of the 
 State of New York; and it must be confessed that that opinion goes the full 
 length of aftirming and defending the strongest and most extreme positions which 
 any party man, in either end of this Capitol, however violent and ultra, had seen 
 fit to take upon the subject. What 1 propose, at the present time, is, to enter on 
 a brief analysis and examination of this opinion of the learned judges of my Stale, 
 in order that I may see for niyeelf, and that the House may see, how much defer- 
 ence it is really entitled to. Before entering on this task, however, I must beg 
 leave, by way of preparation for the proper apprehension of the case we have in 
 hand, to submit to the House a succinct statement and recital of facts. 
 
 It was in the night of the 29ili of December, 1837, that an American vessel a 
 
 steamboat called the "Caroline" — with an American crew, and other American 
 citizens on board, lying in American waters — being moored to the dock at 
 Schlosser, on the Niagara river, in the State of New York — was suddenly attack- 
 ed by a body of armed men '". jin the Canada shore, who, with the weapons and 
 in the manner of war, carried the vessel by boarding, killing some and wound- 
 ing others; and then, cutting her loose from her moorings and hauling her into the 
 stream, and setting her on fire, sent her off, with whatever and whoever remained 
 on board, and in whatever condition, to an appalling fate down the cataract of the 
 Niagara. 
 
 Now, sir, in the face of this transaction, without further explanation, all will 
 agree, as all did agree at the time, that here had been coinmitted an outrage for 
 which the Imperial Government of Great Britain must answer — an outrage which 
 must either be justified by some strong and overwhelming necessity, or (or wliicli 
 the most ample reparation must be made, or which must be redressed by war. 
 The case was clearly one upon which an issue of peace or war was to be made 
 up between the two Powers ; and this was an issue which was to be determined 
 
between tlie two fJoveriiments, in the first instanre, !n tlie nsiial form of nepotia- 
 tion — ii matter, ol course, a[)|ierlaiiiiii^ wliolly and exclnsivelv, on our |)art, to tlio 
 President ol' llie United States, as llie Cliiel Kxeciilive Majiisirale ol'liie nation, 
 aided by tlie a|)|)ro|)riat(; functionaries. Such ne;:oliaii(jn would have for its ob- 
 ject (su()|»i)sin/, justification, as was and is still believed, wholly oui of the <|ues- 
 tion) eiiiier to oinain com|ilete re|)araliori for tins national insult and injury — pre- 
 servinj^f at the same time an honorable; |>eace — or to |)la( e on record, and before 
 tjie world, a full and complete jnstifiralion for a necfssaiy and unavoidable war. 
 
 The first thing inciimixnt on the President of the United Stales to do was to 
 am himself with tin; facts in tlie case, and, upon those facts, to determine, for 
 himsell and for the whole country, on the precise nature and character of ilu! trans- 
 action. Accordingly, wn lind 31r. F<irsylh, the Secretary of State, under the di- 
 rection of the President, wiihiii one week alter this astounding event had trans- 
 pired, namely, on the 5lh <l;iy of January, 18.'{8, submitting to the Uritisli Minis- 
 ter, Mr. Fox, certain papers and documents in relation to ibis extraordinary outrage, 
 and askinj^ that Minister to furnish in return any facts or explanations which lie 
 might receive from the [)rovincial authorities of Upper Canada. In the same 
 comnninication, Mr. Fox was informed that this matter " would necessarily form 
 the subject of a riemand fen n-dress on the British (iovernnienl." On the Gtli of 
 February, I808, Mr. Fox submits to Mr. Forsyth a letter which h(« had received 
 from Sir Francis Head, the Governor of Upper Canada, logellier with oiher ofli- 
 cial and lesral papers relating to the destruction of the; " Caroline." 
 
 Now, tlie facts disclosed in all these." papers and documents, when stimmeel up, 
 were chie;lly tlie-se : That a consideralile force of armed men liad taken military 
 possession of \avy Island, on the Canada side of the Niagara river, with the pre)- 
 fossed and avowed purpose ol efl'ectiug a rejvolution in U'jipiT Canada, and wrest- 
 ing that province from the dominion of the British Crown ; that Governor Head 
 had placeel a large military force on that frontier, iinde-r the itnmediate; ce)nimand 
 of Ce)lon(.'l McNab, an officer in regular commission in he-r Britannic Majesty's 
 provincial militia, who was instructed to act on the defensive ajn^ainst the revolu- 
 tionizers of Navy Island, and, particularly, to do no act " which the American 
 Government could justly ce)m[)lain of as a breach of neiitralily ;" that the expe- 
 dition for the destruction of the " Caroline" was ordered by (Jolonel McNab as a 
 defensive act, deemed l)y him indispensable, and expressly on the ground that 
 that vessel '' was identified wiiii tiie lorce which had invath'd Upper Canada ;" 
 th:it the enterpri ? was under the immediate command of Captain Drew, bearing 
 her Majesty's commission as a commander in lufr Majesty's Navy, aided by two 
 other commissioned olficers of the Ke)yal Navy, one a captain and the other a lieu- 
 tenant, and having an armed force of forty men; and, finally, that, in attacking, 
 boardinff, and cutting out and elestroying the " Caroline," the whole was done by 
 force of arms, with military array, and in the manner of war, the attacking 
 party iiaving, according to the official report of Captain Drew, suffered severely 
 in the conflict. 
 
 With the'se facts before him, tlie^ President of the United States, as was his 
 duty, made up his solemn decision aiiel determination, for himself and for the 
 whole country, in regard to the nature and character of this transaction. What 
 that decision and determination we?re may be fully seen by refere-nce to the letter 
 of Mr. Steve-nson, e)ur Minister to Kngland, of the 22d of May, 1838, to Lord Pal- 
 merston, in whicli, under the express instructions of the President, he makes a re- 
 presentation of this outrage to the British (ioveriiment, with a demand for redress. 
 A single sentenete from this despate:h of Mr. Stevenson will show what the nature 
 ; nd character of the; transaction were, as it had been determined by the Presielent. 
 It was charged by the American Minister as " an invasion of the territory/ and so- 
 vereignty of an indrprndent notion, Inj the armed forces of a frievdhj Power" 
 
 To examine the position hero taken with a liiile particularity. The act com- 
 
»f nepotia- 
 lart, to tlie 
 lie nation, 
 or its ob- 
 
 tli(j «|ues- 
 ur> — |»re- 
 iiid before 
 Jable war. 
 do was to 
 •rniinc, for 
 
 the trans- 
 ler tlu' di- 
 liad irans- 
 [isti Minis" 
 ry outrage, 
 i wliich lie 
 I till! same 
 ^arily form 
 
 the 6tli of 
 id received 
 
 oilier olli- 
 
 immed up, 
 en military 
 til tin; pro- 
 and wiest- 
 irnor Head 
 ( command 
 : Majesty's 
 I lie re vol u- 
 ' American 
 tlie expe- 
 ^cNab as a 
 round that 
 Canada ;" 
 w, bearing 
 Jed by two 
 itlier a lieu- 
 1 attackinj;, 
 vasdone by 
 attacking 
 ed severely 
 
 as was his 
 uid for the 
 on. What 
 U) the letter 
 
 Lord Pal- 
 nakes a rc- 
 
 for redress. 
 
 1 the nature 
 a President. 
 ori/ and so- 
 li/ Power." 
 le act com- 
 
 plained of was "an invasion ;" not a mere trespass on private property, siiclt as 
 individuals niiclit commit, but an act appropiiate to war, and such as one nation 
 commits against another nation. It was an invasion " of tli.i territory and .sove- 
 reignty of an iiidej)endent nation;" not a uuwr, iniriision into some man's firivate 
 premises or close, nor even a niero invasinn of the soil or sitvtieigiiiv of .New 
 York ; it was the t(!rritory and sov«!rei||>nty of the American nation ; it was the 
 ri!,'ht of eminent domain; it was the supreme |iower and auiliority in the coun- 
 try; it was llii- peacealile dominion of I he laws; it was national etpialily and in- 
 d'lpemlnicc : it was those that had been forcibly interrupfed and vidlated. And 
 then, tli{! act was done with the aid of " armed fi)rc<'s ;" it was not a mob, this 
 invadiiic parly ; not a com|)any of rioters ; not a band of marauders and robbers ; 
 but it was an organized military force, such as {i; Ttains to fJovf rnmeiits and na- 
 tions. And, finally, here was a military and hostile invasion of the coiiniry by " a 
 friendly Power ;" ^o that thu ai.'uression was a:r!,'ravati:d by the fact that it was 
 committiid against the faith, and in the face of a treaiy of amity and peace actu- 
 ally existintr between \\\{\ two countries. 
 
 Such, then, were the natnn; and character of this transaction, and such were the 
 position and aliiiude of the President and of the country in r(!gard to it ; and now it 
 is material to observe tiiat, from tliat period down to th(! present hour, this posi- 
 tion an! tfiis aitilu.ie have never been relimiiiished or clian'j;ed by the (Government 
 in the slightest niiinner or decree. They \v(!re taken under the Presidency of 
 Mr. Van IJtiren, and when IVIr. Korsyili was .S(;crctary of State, and they iiave 
 been maintained under those who have succeeded to tlie'.r places. 
 
 It is sini^uhir, certainly, that, to the present hour, no answer has ever been giv- 
 en to the demand niadc^ on the* IJritisli (jovernmeni for redress, ttirouii;h Mr. Ste- 
 venson ; lliou(,di it is certainly true, at the same time, that the demand has never 
 been withdrawn. The diicuments in the case show tliai Mr. Stevenson was in- 
 formed, in September, IS'Ji), by Air, I'orsylh, that tiie Prcisident expected, from 
 some inl'ormation he had then lately rec(Mved, that " the liritish (iovernment would 
 answer l!i(! auplication in the case without much further delay." 
 
 Hut though no answer has been received to the demand for redress, yet a cor- 
 respondence has taken place on the subject between \.\w British Minister at Wash- 
 ington and the Secretary of State. Tliis was occasioned by the arrest of one Al- 
 exander McLeod in the county of Niagara, in New York, charged with having 
 been one of the parly or military force engagtjd in the destruction of the Caroline. 
 His arrest took place in November, 1840. He was afterwards indicted lor muj*- 
 dor for his participation in that outrage, and particularly on account of the death 
 of a |)oor creature named Durfee, belongin:: to the steamboat, who bad been found 
 dead on the dock the niorninc after the attack : and he was held in close confine- 
 ment in the jail at Lockport to await his trial on lliai chartie. 
 
 in December, 1810, the correspondence referred to took place. Mr. Fox pre- 
 sented tiif? case of McLi.'od to ihc; (iovernment, and recpiested its inte f^rence to 
 procure his release, avowinir, as the ground of this reipiesf, that "the = i:>"-uction 
 of tli(! (Caroline tons a pulilic act of pi;rsons in her .Majiisty's service, obiying the 
 orders of their superior authorities." 'I'iiis avowal, it will be observed, was in 
 strict accordance ami aiiri^emeiit with the position which had been assumed by 
 our (»ov<'rnment, and wliich had been presented to (Jirat IJritain. Mr. Forsyth 
 RO considers it in his reply, informing tlie IJritish Minister that this was the first 
 time the admission had been made by any one havintf authority to make it, and 
 reminding him that no answer had yet been given to tiie demand which had been 
 presented, upon this very ground, to his (ruvornment for redress. In regard to Mc- 
 Leod, he informs Mr. Fox, in substance, that be is in the hands of the law, and 
 the court will decide on the validity of the defence which the Minister sets up for 
 bim when legally established before it. 
 
 Ill March, 1841, Mr. Fox renewed his correspondence on this subject with the 
 
6 
 
 SncrctJiry of Stnic. Wn iMfdrms ilf Sccn.'tnry ihiil his fJovcrnnu'iil lind Jipprnvfd 
 of tin? ciiiirsc! puiMii-d l»y liirti in his U'IKts, ;iii'! ot' ihi- liiii<;iMUi' In; liiid t'ni|(l()vr(l ; 
 and ihal hr w^is now instrnctcrl to (li-initiid lorniiilly lln- iiniufdiiiK! ndciisf ofMc- 
 Lcod, lie llii'ii |)idcfc(l.s lo .set loiih iiuniii {\\i'. |iirci-«' utonnds on whicli ihi.s ('o- 
 iDiiinl w;is in idc, uioch is donr in ihrsc words : " Thiit tlu; lran.%ii(:iion on iH-cotint 
 of whi( h iMcfji'od has hrcn iirrcsKid, and is lo lii> put upon his trial, was a Irnns- 
 action ot a pnlilic cliMMCii'r, planiici' and twrLiilfd i)y persons (hd\ cnipowiTtd 
 by her Maji-sly's coinnial iuiiliorilirs to lako any steps and to do any acts wliich 
 niii,'iil. 1)1' iM'i'essary (or the di-Cencc ol' iicr iMiijestv's territories, and lor the ptoiec- 
 tiun of hf'r M ijcsiy's suhjecis." " 'I'he tr.in'«iciioti was a jiistili ible einployinent 
 of force tor the parjiose of (h-fendiiit; iht; IJrilisli territory from an unprovokiid 
 attack," ».Vc. 
 
 Under date of the •2[\\\ of April, 1S41, the letter of Mr. W'ehster, the present 
 yocretary ol State, in repiv to Mr. Fox, was written, and a ni.lile letter it is. 
 " The (act," says Mr. Wehstrr, " thai the di'strnction of the Caroline was an act 
 of pnldic force hy the British aiilhurilies hein;: formally communicated to the 
 (iovermiKiiit of tin; luiiied Siatrs hy Mr. Fox's note, the case assiinir's a decided 
 aspect." " The iiiidersiiMied," hi; .-iays, " has now to signify to Mr, Fox that the 
 (Government of the Uniiid Siati's his not clianiicd the opinion wliicli it has here- 
 tofore expressed to her AIaj<st\'s (iiuci nmriit of tiie character of the a( I of dc- 
 stroyinji the Caroline." 'I'here was no difli reiico of opinion helween the two 
 Governnieiits in ri'i:ard tn tlie character of liiat act^: just as it liad heen (harued 
 on one side, it had now ln'cn .idmiitid and avowed on tiie other. And Mr. \\'ehster 
 proceeds to remind the IJritish Minister liiat it still remains for his Goveriiinent to 
 show how tills ontraiie was to lie defended ; and, in a fi'w words, put together ill 
 his own sii^niiricant and ininiilahle \v;iy. he warns the iMinister and his (jovern- 
 niODt of (he dillicull task whicii those will have who shall onderlakc that defence 
 and justification. 
 
 In reirird to McLeod, Mr. W'ehster inftn'ins Mr. Fox, in snhstance, as he had 
 been informed hefore hy Mr. Forsyth, that McLood was in tlu; hands of tlu^ law, 
 and conid h(; rehiased oiiiy " hy such piocee(!in<:s as are usual and are siiitahle to 
 the case." II(! makes, however, at the same time, the manly and I'xplicil dec- 
 laration, that " the American People, not distrustful of their aliiliiy to redress pub- 
 lic wrotiijs hy |)uhlic. means, cannot desire the punishment of individuals when the 
 act C(,mpi,iiiu'd of is di'cl ired to have heen an act nf the (iovernnient itself.'* 
 And Mr. Fox is informed that the American (iov(!rnnienl, eutertaininjj no doubt 
 that, under the circumstances of the case, individuals concerned in the transaction 
 referriul to ou^ht not to he hohlen personally responsible in the ordinary tribunals 
 of law, had decided to take such measures in regard lo McLeod as the occasion 
 and its own duty ap[)eared to reipiire. 
 
 As is well known, the President sent the hiirhest law ofl'icer of the Ciovernment, 
 the Attorney (General, into the State of New York to confer with the public au- 
 thorities there, and to furnish to them and to the courts tiie authentic evidence, 
 from the records and archive-s of the (government, relative lo the affair of the Car- 
 oline. And it is this act that, has heen so much complaintd of in debate liore, 
 and in New York, 
 
 Sir, I hold it to have-^'cn the boundeii and indispensable duty of this Gov- 
 ernment to have done at lea-.t as much as was done in this case. Let it be re- 
 membered that the character of tiie transaction out of whicli the arrest of McLeod 
 had arisen had already, and at an early day, been determined by the President; 
 that a representation had acconiinaly heen miuie to the British (Government, and 
 a response had been receivetl, conlaininc; an explicit acknowledL'mcnt that the 
 tran.<action had been trufi/ characterized and determined by the President. Let 
 it be remembered, also, tliiit liiis deti^rminalion, on the part of the President, set- 
 tled precisely, for the whole country, the particular relation in which Great Brit- 
 
 I 
 1 
 
 I 
 
pprnvfd 
 |ili)\ ( (I ; 
 
 • of' Me- 
 lius ('e- 
 iiccdunt 
 a I in II s- 
 |ii)\vi'r( (1 
 l.s which 
 
 • pioicc- 
 loyiiii'iit 
 
 l'UV()k(!(i 
 
 proscnt 
 Icr it is. 
 IS an act 
 (1 to llie 
 
 ilccidcd 
 
 (li;it llie 
 liis lieru- 
 cl of (Ic- 
 
 tlio two 
 I cliiir^i'd 
 
 Webster 
 niiiifiit to 
 pcllirr ill 
 
 (jiivf^rn- 
 t defence 
 
 as lie had 
 
 f tiie law, 
 
 litalile to 
 
 it'll (lec- 
 
 Ircss pub- 
 
 w lie 11 tlio 
 
 t itM'lf." 
 
 no doubt 
 
 ansnction 
 
 tribunals 
 
 occasion 
 
 /eminent, 
 iiibiir au- 
 I'videncp, 
 ■ the Car- 
 ale here, 
 
 this (lov- 
 it be le- 
 f Mr Lend 
 resident ; 
 nient, and 
 t that the 
 ent. Let 
 ideni, set- 
 real Brit- 
 
 ain, a foreisii nation, had stood to liiis n ition in that partinilrir trnnsartion, nnd 
 whether it was n rehitioit of war or of peace — a deterniiiialion which belinufdex- 
 oliiHively to the Kxeciiiivo of ihe nation to make, nnd -.vliicli, as 1 siiall have oc- 
 casion lo show more fully before I close my ,einarks, when made, was eonciiiviive 
 on all courts, and all persons and pariii s t' (jU'iIioiiI llie country. But all the au- 
 thentic proof of the facts her.; adverted to — of the actual character of the trans- 
 action, and the de<'ision of the Kxeciitise thai, in this transac'ion, the British au- 
 thorities iiad placeil iheiiisi Ives in an attitude and relation ot hostilily and war to- 
 wards the United States — the authentic proof of all thisi remained witli the Kxec- 
 iitive, amonij the archives ui the (iovernmeiit, sicret, except so far as he niiiiht 
 see fii to disclose ilit-iii : and I should be 'j;lad to know what could have been more 
 appropriate, lioiind, as I contend he was, to furnish lo the authoritii s and the courts 
 of New York the facts necessary to the proper understandini^ of the affair of the 
 Caroline, than that he shuulfl send lo that Stale tiie projier (aw ollicer of the (iov- 
 ernmeiit, with lh(! jiapersand documents which contained the only authentic proofs 
 applicable lo ihe ciise ? Sir, I am sorry thai any body connected with the public 
 authorities of N.-u York should have ihou'^ht it iiicunihent on them to complain 
 of this act, as an interference in the affairs or with the courts of justice of that 
 State. I remember an occurrence, not iinconiK cti d with McLeod, which it would 
 liave lieen much more ciediialle to have coiiiplainerl of, as an imjustifiable inter- 
 ference with the courts and ih" adniinistialioii of the law, and, indeed, to have 
 noticed in some etJici.-nt way — I alluih? lo the disiiraceful spectacle of an excited 
 populace, "lathered liefore or about tin; courl-laane and jail at Lockporl, where 
 M(-lieod bad bicn confined, and wbicli, liy menaces, and a show ot arms and 
 force, compelled a judicial fimclionaiy, who, in the exercise of his own lawful au- 
 thority, had dc'-ided and decreed, upon 'iioiinds satisfaciorv lo himself, that Mc- 
 Leod should l)e h-t to bail, to reverse ihe judL'meut he had pronounced, and give 
 back McLeod ai'ain lo the reslrainl ot his [irisou and his cell. If any loud com- 
 plaint (d this transaction was ever made in the f|uarters whore il should have been 
 complained of, it whollv escaped my heaniiu or observation. I do not remember 
 that any lari;e rewards were ever offered tor the deleclioii of the leaders in that 
 ontraf^e, or that any sp(;cial ord(;rs were ever jjiven to the otVicers of justice to aid 
 in brinsrinsr the aeiois concerned in il, or any of tli>iii, to condiiLMi punishnient. 
 Sir, I speak of this aliair, so disi.rra<« I'ul, not to ,\ew York only, hut to the whole 
 country, with the more freedom, as I do willi llie more reirrel, because it is New 
 York that is more immeiliately concerned, .uul liecause the administration of that 
 Stale is in ilu- hands of iliose to whom I am limii p<isoiially and politically at- 
 tached. Within my recollection, this is ihi' first, and [ irust in (jod it will be the 
 last instance, occuriin'.' in lliat noble Stale of a direct pojiular interference with 
 the administialion (d justice in the criminal cfjiirls. 
 
 Mr. Speaker, having presented vou with a liriel recital of the leadinfj facts in 
 relation to the de>tru( timi of the ('aiolinr — liuNiin: sIionmi what that transaction 
 was, as characteri/rd and (hMerniined by the President, and what the steady and 
 unwavering course of ibis <iovernmeni has been on the subject, in whose hands 
 soever the (lovernment has been, I come now to consider the opinion of ihe judges 
 of the Supreme (.'oiiit ot" New N'oik in tlie case of McLeod, to which I have be- 
 lore retVr.'ed. I desire to treat this opinion with p(;rfecl respect, not only on ac- 
 count of the personal re<>ard which i have for ihe iearivd iientlemen who compose 
 that tribunal, iiut beca'isr of the profound veneration which ( fet;! for the sacred 
 office which they fill. I must taki' occasion to remark, however, that this opin- 
 ion, in all thai part of it which I shall now examine, was and is wholly extrajudi- 
 cial, and I shall consider it, therefore, as the ojiinion of three gentlemen of high 
 siandins and respectability, and enlillo^d to jusi so much weioht as its own merits 
 mielit rjive it, siipposinir it to have been delivered by lliem, in debate, on this floor, 
 ^landing where, from their well-known political associalions, they would have 
 
•toud, if hero — in the ranks of tlui ()|>|iositi<)ii, Tlic cnso of Mchi'od wns hroii^lit 
 befuru lliu cuiirt on habeas corpus, iiu bc-iiu>, under indiriniiiit for nun Jcr ; and his 
 dittchari;*! was askod for hy hi!« counsel on (lie 'jronnd. snlisiiiiiiinlly, of tlie farts as 
 I havo hiid occasion in re to relate tlieni. The court decided, in (lie first place, 
 that the law wituld not allow tlieni to discharire the (irisoner on this process, after 
 inilictiiiinl, wilhont a trial, snpposint,' and iidrnilliiiL' iIk' defence, on the lac's \nv.' 
 svnU'il, to be perfect and conclusive ; he niusi he delivcMed at tlii' hands of a jury. 
 So far, tlie decision was judicial, and it covered the whole case before th«'ni. 
 When (hey had found this conchixion, (Ik re was notiiiuL' lel't, for (hem to do, be- 
 cause it could not aliect (heir ailjudii ation in the case, in the least dcjcee, to con- 
 sider and decide whether the defence set np would or would ni)t avail the prison- 
 er on his trial helore a jniy- Vet thi>y wiMit on to consider and decide this very 
 question — a |)roceedinji wholly extrajudicial, anrl, in my opinion, lla^iandy im- 
 proper, since i( was andcip i(in<.' and hnislatlinu; a judicial proceeding; and judj;- 
 ment which the) niii^ht be called on to entonain and |>ronounce in this very cusu, 
 af(er trial before a jury. 
 
 In this opinion, drawn up by Mr. .Iintice Cowen, one tbin<; is very clear and 
 certain, and that is (he conclusion to which be conies; and be seems to mu to ^et 
 out Willi (be same conclusion, that IMcLeod, for the part ho took in (he destruc- 
 tion of the Caroline, was a lelou and a murderer. I!ut it must be confessed that 
 the reasoniiiij; by which this rtsult is arrived at, jirob.ibly on account of its ex- 
 treme subdely, is a li((le diflicult to t'ollow or (o (hd c(. A weij^lay opinion it 
 cor(ainly is, since i( is made (o press uixni (he subjiu t under a siipi rincumbent 
 mass of ponderous lf;;al aiiihoritics, which are piled up and heaped lotietber, with 
 iiow much resjard to method or to meaninp, I shall leave others to determine. FJy 
 comparing (his with some aruumenls which ha<l preceded it, on (he same side, es- 
 pecially some which had been |)resen(ed in (he oilier end of this caj)itol, and with 
 which it alVords sonu' instances of reniarkable coincidence, the fieneral strain and 
 course of tboegbt may, I think, be discernnl. 'I'he learned judge has put lliR 
 argument into a legal form, and built it up in a lawyer-like way, upon a show of 
 authorities. Well, sir, I shall undertake to meet the argument widuuit any au- 
 thorities : 1 will not (pioK! one, except, peihaps, a single aullioiity to a single 
 point, and that an authoiils t|Uoted and inisa|i|)lied by himself. I shall undertake 
 to present the case, I sny, without authoriiies ; bu( I (hink I may safely challenge 
 all the lawyers and all the Jiidgiis in Christendom to produce one reputable au- 
 thority against the plain, practical positions which I shall lay down as governing 
 the case. 
 
 In order, Mr. Speaker, that the [louse may under-t ind the reasoning of the 
 learned judgft in this case, I will undertakf; (o present it, in a brief form, and ac- 
 cording to the best analysis that I have been able to make of it. I believe this 
 analysis will present his argument with perfect fairness, as well as I can under- 
 stand it. 
 
 In the lirst |)lacc, then, the judge finds a party, composed of a lunnber of per- 
 sons, (reading on ground wliicli, it is acknowledged, does not belong to tliein. 
 Prima facif f {Uey are unlawfully there ; and this is thcrctore, in law, a trespass — 
 it is trespass qiiasc clansiim fngit. lie finds, also, a violence committed, and a 
 homicide, by this parly ; and this, of course, is an assault and battery, and a 
 murder. And this is the |)roseciiior's case. And how stands the defence? Why, 
 tho judge finds that the prisoner says, by his counsel, that this was not a tres|)ass, 
 but an invasion in lawful war, and the homicide was not a murder, but a kiliing 
 in battle ; and here his honor, the judge, lays out all bis strength in the critical 
 examination and repudiation of this defence. I give his argument as well as I can 
 comprehend it. 
 
 Two things are necessary to make out this defence : first, that war actually ex- 
 isted ; and next, that it was a lawful war. Now, only two suppositions can bt in- 
 
 V*^i-" 
 
es- 
 
9 
 
 dulged in regard to tlie existence of war at all : one is, that war existed between 
 Great Britain and tin- United Status; tlie other is, that war existed between Up- 
 per Canada and the rcvohitionizers of Navy Island. 
 
 The first supposition is easily disposed of. No war existed between the United 
 States and Great Britain; because, first, no war had been declared by Congress, 
 which alone is the war-makinv^ power in this country ; secondly, nu war had been 
 declared by the British Qiumso, who alone had the war-niakini» power for Great 
 Britain ; and, finally, the provincial anlhoritios of Upper Canada had not the 
 power to declare or make war on the United States. All this is plain as the way 
 to chtirch. 
 
 The remaining sn[t[)()silion, then, is, llial war (i.xisKid between the revolutioni- 
 7.ers of Navy Island and Upper ('anada — what is called in the Books a "mixed" 
 war — so called, to distinguish it from a " [xiblic" war, because one of the parties 
 to it, as in all cases of a civil or revolutionary conflict of arms, ihouji;h organized 
 for war, is not yet organized or recoL'nised as a nation. Adniiitinfr, for ilie sake 
 of the argument, that such a war existed, and that it was a lawful war in Canada — 
 that is, one to which the riti;hts and the laws of war attached — yet, the moment it 
 was transferred to our shores, it was unlawful ; and there was wanting, therefore, 
 one of the indispensable lefpiisites to give validity to the defence set up for Mc- 
 Leod. 
 
 The learned judge goes on to make out this want of lawfulness, by a very par- 
 ticular examination of the various grounds on which the case had been or could 
 be placed. 
 
 First, nothing is clearer, he insists, th<in that beHig(;rants cannot follow one an- 
 other into neutial ground, and there do battle. It is unlawful to do so ; it is ex- 
 pressly forbidden by the Code of Nations ; and he ijuotes lar^'ely from authorities 
 to fortify this position, as if they had any ihing ut do with tiie ciise ! 
 
 Then, it is equally clear, in his judgment, that this pursuit by the provincial 
 powers, of their enemy on to our territory, could not be justified on any pretended 
 necessity of self-defence ; because, by recurring to the plain principl(!s of the 
 common law, as applicable to cases of assiult, a homicide can only be excused 
 when the [larty assailed lias retreated to the wall, and turned then upon his adver- 
 sary ; in short, he must retreat as far as lie can, and not, as in tliis case, actually 
 seek an opportunity to pursue his enemy ! 
 
 And, finally, it is clear also, tiiat a sthsefpiont approval of the act liy the Im- 
 perial Governmonc could not make that lawful which was unlawful before ; no, 
 not even if a special ad ol Parliament had been passed to that efi'ecl I That (jOV- 
 ernment might thus make itself a parly to the crime, but could not legalize the 
 act in those who committed it. 
 
 And thus the learned judge dis[)oses of the whole case — with many more words, 
 certainly, but with no more arguments than I have here presented. He does go, liow- 
 cvlt, one step further, and, as the case is somewhat remarkable, and seems to re- 
 <|uirc to be characterized and explained, in some way, beyond any explanation or 
 inference to be diwived from tlie aruument, lie proceeds to give his conclusion on 
 the whole matter. What think you, Mr. Speaker, was this transaction according 
 to his construction of it ? Hear him : " Tne result is, that the fitting out of the 
 expedition was an unwarr.intable act of jurisdiction exercised by the provincial Gov- 
 ernment of Canada over our citizens." There ! there is the affair of the Caroline ! 
 The civil magistracy of Upper ('anada exceeded their municipal jurisdiction in 
 seeking //i«;ir criminals, to do execut " upon them, on our shores. Hear him : 
 *' Those authorities, being convincc'd oi uer delinquency, [the (Jaioline,] sintenctd 
 her to be burned! an act which all concerned kn(!w would seriously endanger the 
 lives of our citizens. The sentence, therefore, was equivalent to a judgment of 
 death ! and a body of soldiers were sent to do the office of executioners." There ! 
 there is the gospel of the aflair of the Caroline, according to Mr. Justice Cowen ! 
 
10 
 
 The mat^istrates of l^|)ppr Canada excord^d their jtirisdiclion, by scndinc; n posse 
 comitatus — wlir-io was iht; sherill? — to seize or desiroy certain (illeiiders ajiainst 
 their inunicipai laws, heyoiid llie Imitorial iiniits ol llie provincR ! Sir, sir, if (liis 
 wer»i not too gravo a siil)jeit, 1 would just propose to tlie wiiol'j House that we 
 should now indulge ourselves in one universal, broad laiipb, at the utter ludicroiis- 
 iiess of these notions, and I do not tliink there is a man on this lloor, of all who 
 are now honoring: nie with their attention, of any parly, who could refuse to join it> 
 it. Bui it is too <i;r;ive and serious a niniter to he disposed oi in that way. 
 
 Mr. .Speaker, wt! have seen already, in tlio recital I made at the coniiiience- 
 ineni of my remarks, wiiat this transaction in fact was. It is just as easy to un- 
 derstand tlie law of the case as it is to understand tli(! facts. 
 
 I be^in with laying down ci-rlain positions and princijiles, which are too plain 
 to need the sup[»ort ol'any uutliorities. 
 
 First, then, to make a war lawful, it is not necessary that it he preceded by a 
 declaration, or by any notice whatever, troui the party comiiu iiciuii it; and this 
 rule applies to every kind ol war, whether it be siilimii war, or an insohmn war, 
 as in the case of reprisals and the like, or a ini.r<'(l war, or a simple act of war. 
 
 Afjain : Tiiere may l)e, and tlu.'r(> often are, individual or sini.'le acts of war, to 
 wliicii all the laws and rii:hts of war, as between the parties or actors, attach, when 
 there is no staii: jI war, but on the contrary a stuti, of peace between the Powers 
 concerned ; such peace, liowever, beini,^ broken or interrupted in such cases just 
 for the time, and to the extent ot the hostile acts. 
 
 Ayain : (n order to make war, or any act \yi war, lawful, it is not ie(piisite that 
 it sliould be, at least in the estimation of any body except the parties undertaking 
 it, either necessary or just. Every civilized and independent People determines 
 for itself whether war, or an act of war, be just and necessary ; and that determi- 
 nation is conclusive on all the world in regard to the lawftiliiiss of tin; war, or the 
 act of war. Tiiis rule a[>[)lies to a warlike act, done on tlu' plea of a necessary 
 self-defence, as well as an\ other. 
 
 Again : The power to make war may be ^iven, and often is <riven, by a fiov- 
 ernment, to a distant province. It has been ijiven by Knt;land even to a com- 
 mercial corporation, as to the Kasi (nJia Company, and that not only for defence, 
 but even h)r a;,'i>ression and for confiuest. And in order to make a war under- 
 taken by such province a lawful war. it is not neces-sary that the express warrant 
 or authority for it siiouid be shown ; it is enoiejh, and it is conclusive on all for- 
 eign parties cmicernefl, that the Imperial (lovernntent admits and avows that the 
 authority for the war, or tin; particular act of Imstility, existed. The authority 
 may not exi>t in any charter, or in any spe<'iiil iii>lruclions, hut may result from 
 the general ndation between (he Impel iai (Joveinnit lit and the province, and the 
 general duties arisiuij; from that relation ; and this is a matter to he jud'jed of exclii- 
 isively by such CJoverinnent. in the case before us, the C'anadiaii authorities had 
 power to maki war, in defence of the territory and citizens of lier Britannic Ma- 
 jesty, in that provimu; — a power claimed and exercised by them, and conceded 
 and approved by her Majesty's (iovernment at home, which is, in itself, conclu- 
 sive on us, and on all loreien nations, in regard to tia' Inwfulntss of the war. It 
 must not 1)0 for«roilen, all. the while, that, whether this war was just or necessary, 
 and can i)e del'eiided, especially in the particular act wiiich is the subject of this 
 debate, is another and a totally dili'erent tpiestion. All that is meant, when I speak 
 of a lawful war, or act of war, is, that it is such a war or act as that the laws of 
 war and the riglits of war attach to it. covering with perfect immunity, for exam- 
 ple, the incident of killing in military assaults and in battle. 
 
 Now, Mr. S[)eaker, I beg leave to n!cur to the fict, hr'retofore stated, that, at 
 the pf^riod of ihi; d(;struclion of the Caroline, a war actually existed between tap- 
 per Canada, on one side, and the force assembled on Navy Island, on the other; 
 tliat war having for its object, on the part of the Navy Islanders, nothing less that* 
 
11 
 
 llio wresting of tlie provincn of Upprr CniiHclH from tlu; possession and dominion 
 of tins Biilisli Crown. It was in tin- prosecution of lh<il war that tlie transaction 
 we are considering look place — » transaction wliicli we all believe, and which wo 
 have pronounced, to have heen unnecessary, unjust, and outrageous. 
 
 It was undertaken, however, as we have seen, on the alleged ground that iho 
 Caroline " was identilied wiiii iIk; forces which had invaded Upper Canada," and 
 her destruction, th( re h)rc, iiad become necessary, in the judgment of the provin- 
 cial authorities, as an act of self-defence; so necessary that, in the judgment of 
 the same authorities, she might lie attacked and destroyed in American waters, 
 without subjecting theru to the cliar^ie of doing an act " which the American 
 Government could justly complain of as a lireach of neutrality." 
 
 The case thus presented, wlien we are looking at it in regard to the question of 
 ilie personal responsibility ol McLeod, may be con.>idered in either one of two 
 aspects. In the first place, liii.' proviuci^d authorities may have regarded the Ca- 
 roline as " identified wiih (ho force which had invadid Upper Canada," by hold- 
 ing her to hav(; actually hc.loitged to that force, and have mad<; a part of it. In 
 this aspect, it would present the case of one belliizerant put suing another into a 
 neutral territory, and then; giving liim battle. This, says the learned jiidge- 
 whose arL'iujienl ] am revi'-wirig, wiis unlawful ; such a thing is expressly t'orbid, 
 den by the law of nations. No (loui)| of it, Mr. Speaker, in the world. But how, 
 and towards whom, is such an act unlawful? Why, towards the neutral nation, 
 undou'niedly, it is not oidy unlavt liil Imt an outrage — so unlawful is it, that tho 
 neutral nation may at once lly to arms, give battle to both parties, and drive them, 
 if it can, by tbrce of arms from its territory. But does the judge here mean to 
 say, that every battle that has ever taken place between hostile armies, over and 
 across the line from the territory of eiiher,and on neutral ground, was not a battle 
 but a mere trespass and assault, in which every tleath was a murder, punishable in 
 the municipal courts of the neutral coitntry ! Yes, sir, tliis is his position ; since 
 I u.iderstand him to insist that the death of Durfee, though happening as the con- 
 sequence of the ntidnitibt military attack, made by the authorities of Upper Cana- 
 da on thf! (!!aroiine — maile, in the case here suppos(;d, by one belligerent on 
 another — was a murd(>r, bei^ause tie attack took place in the territory of a neutral 
 l'ow«r. Admitting thiit the attack, if it had been madt; at Navy Island, would 
 tiave boon an act of lawful war, yet, made at the American shore, it was unlaw- 
 ful, f.vni as hctwecn the part'us, and (Aery death was a nnirder ! 
 
 .Sir, it was al)out the y.'ar 17i)l>, I think, that Admiral Boscawen attacked and 
 destroyed a F'rench lleet on the coist, and so near th;,> shore as to be deemed with- 
 in the waters of i'ortugal. The British (Joverument sent ii special and solemn 
 embassy to the C'ourt ot' Portugal to apologise for tiiis breach of neutrality, which 
 was satisfactory ; and, I believe, the world would have heard with amazement that 
 the Government of Portugal projiosed to hold the parlies to that alfair individually 
 responsible in her municipal tribunals, as for murder, for every dtiatli that had 
 happened in that sanguinary conllict. 
 
 But, Mr. Speaker, tlio true history of this case, considered in reference to the 
 personal res|)onsibility of Mcf^eod and others who may have been actors in it, may 
 be read in anoth(>r aspect of it. If the Caroline was identified at all with the force 
 which had invaded Up|)(r Canada, it must li:ive been as being engaged, while 
 owned and maniifMi by Vuierican ciii/,ens who wi^re not a part of the invading 
 force, in aiding and abetting the designs and operations of the Navy Islanders, by 
 aflbrding facilities for su[)plying them with men and munitions of war. The pre- 
 tence is, that the desiruction of ihis boat became indispensable, and was under- 
 taken as a necessary act (d' self-defence; or, to use Mr. Fox's language, an act 
 "necessary for the defence of her Majcstv's territory, and the jjroteclion of her 
 Majesty's subjects." In this aspect, the act ws an act of war, committed within 
 ihe territory and upon the citizens of the United States. The authorities of Ca- 
 
12 
 
 nada determined, ms tlio Inipotial (Jovcrnnipnt dorlnrrs tliry liad a ri|7lit to deter- 
 mine, and were riglii in dctermiiilDsr, tliat il li.id lieconic lU'Cessary lor them to 
 diil'cnd liio provinre, not miiy ayninst tiie force nn Navy Islaiui, but ajjainst cili- 
 xens of tlie United St;Hes on ilie American ^ll()rl!, wlm, as they ilioiiglit, or pr«- 
 ttMided to tliink, had idenlilii'd liieiii.selves wiih that revohjtionary I'oicl'; that il 
 was neiTssary, in short, to cairy the dei'ensive war in which llicy were tMigajj;«;d 
 into the United States. 
 
 On every account, theret'ore, uirieccssary, iininsiiliahh!, and onlra(;eons as we 
 liold, and tliinU we know, lliis act of war to iiave heen, yet we liave no warrant or 
 auiliority to dispute its liiirfittiitss — we Invi^ no warrant oi' aiiliioriiy to sa\' that 
 the laws and rii:hls of war did not aiiacii to it, as far as llie parti(>s «.'neat;ed in it 
 were concerned. It was uiiderttUen on aiitiioriiy, the siiliiciency of wliicii we are 
 Kot at iiherty to (lunstion ; it was plaiuied an(i executed hy ol'ficers hearin;: rocniar 
 coniinissjojis and liie 11 i!,' of iIk ir country, and was cotidiicte-d in tiie manner of 
 lawful tliuuuh ol ferocious war, prosecut(id in tiie name and for th(; behoof of their 
 sovereit;n. It needed no suhseipicMt approvd or iivowal on ilit; part of that sov- 
 €reit;n to cive it tiie chractcr oi Liwluiuess ; iioi is its character of lawfulness af- 
 fected in any manner by tlie consideration of what our opinion may be, or what 
 the facts may show thi world, iti reirard to the (picstion whether it may or may not 
 be defended and justile.d as a mxtssaiy act of sell-defci.ce. 
 
 But the iearni'd jud<.'e, with wliosc arirMUicnt 1 am dcaliuLT. still and stronsjly in- 
 sists that ih.re can bf; no such thinu; as lawful war, or a lawful act of war, in a 
 state of jieace. Well, sir, on this point I shall content myself with referring, 
 briefly, lo a few cases, wiiich seem to me to be very much in point, and which [ 
 shall love him, aiif! others who tiiiuk with him, todit'esl as well as lliey can. 
 
 in 17"1, a Spanish comniodort , with four or live I'riL'ates under his command, 
 Eiade a military attack on Falkland's island, then in the peaceable possession of 
 the ICuL'lish, with whom the Sj)aiiis!i nation were at [)eace, and compelled a sur- 
 render to tli(^ arms of his master. His Catholic iMai<>siy disavowed the act of his 
 officer, and ofli red every ecjuilable satisfaction ; but it was iicve.r heard of, I be- 
 lieve, that till' comumdore, or any body under him, was held lo be amenable to the 
 Kiunicipal laws of Ent'laud, as for trespass and munier. 
 
 A similar occurrence took place in ITSf), between the sante itarties, in regard to 
 an EuLdish selllemeul at Nootka Sound, and with very similar results in al 1 
 respects. 
 
 And we are not without some cases which t(uich ourselves much ntore nearly. 
 What was the attack of the Leopard on the American IVitjaie Ches;ipeake ] The 
 two countries were at peace ; was or was not this an act of war? No war had been 
 declared l.>y either party ; and certainly the iJritish commander had no authority 
 to mak(! war. But he bote the commission and Ibej of his sovereiixn, and under 
 these, and in the name of his sovereign, he p'oured a broadside into an American 
 Rian-of-war ; was it an act of war, or was it not ] and, if not, what was it ? It 
 was doiu! without sulticii nt warrant ; whs disiivovved by his sovereiL'n, who, by 
 way of reparation, made provision for the families ol those who were killed by the 
 murderous tire of his artillery ; but lU) body ever dreamed of holdins tlif; commander 
 r.f the Leopard, mucii less one of his sailors, rrsp(Uisible lo our municipal tribunals 
 as for a murder committed on tlie hiuh seas. 
 
 To allude to only one casi; more. In ISiS, we were euiraszed in a war with the 
 Seminoles, the conduct of which was comiuilted to General .fackson, with in- 
 structions which forbid his enterintr Florida, then a [irovince of Spain, with whom 
 we were ,it peaci;, iir.ccpt in clusv. pursnit of his rncnii/ ; and, in that case, to r<;- 
 specf (he Spanish aiifhnriti/ wherever it was viaintuincd. General Jackson en- 
 tered Florida, not in pursuit of his enemy, the Seminoles, but to take forcible and 
 military possession of the forts of St. Mark and Pensacola, then under Spanish 
 authority, which he accomplished. This was done, of course;, as an act of hostility 
 
13 
 
 and war against tlm Spanish possessions in Florida ; and, tliough the forts were 
 ordered to he innnodiutcly restored, these acts were deem( d by tiie Government 
 not unjtistiriahle, on the ground of the protection, if not aid, which the Seniinoles 
 were accnsloint"! to find at the hands ol' the Spanisli authorities. Pray, Mr. .Jus- 
 tice Cowen, was this an act of war or ot peace ? And do you iiold that every 
 vioh.'nt dealli whicli may iiave occurred in liiis expedition was a ;i:urder, for which 
 not only tlie old hero, but the meanest soldier in hi.i army, might have been, and 
 oiifiht to have l)een, tried and hanged, under the municipal laws of Spain ? 
 
 But let me make a supposition or two, in regard to this very affair of the hostile 
 attack we are now considerinj:. Suppose, for example, tnat some briuadier or col- 
 onel of militia, having got wind of the meditated attack on the Caroline, had sud- 
 denly assembled a force of a liundrt^d men, and, in concrt with the crew, had 
 been prepared to receive Captain Drew and eive him battle, and that then, in- 
 stead of one or two, half a hundred had fallen in the engagement, what would Mr, 
 Justice Coweo think of the case then '? 
 
 Or suppose! that Colonel McNab, instead of the Caroline, had thought it a ne- 
 cessary act of self-defence to attack and destroy the city ol IJulfalo, on the alleged 
 ground that that city was engaged in aidint; the revolulionizers of Navy Island 
 with sup[)lies of men, provisions, and niutiitions of war ; and for this purpose he 
 liad come over himself to a midnight attack in command of a thousand men: Or 
 suppose, in his zeal to serve his Queen, he had projetied another Con ord affair, 
 and had sent a heavy force to march to Balavia, Ibrly miles in the interior, to 
 destroy the arsenal and military stores at that place, on tiie <:round that that arse- 
 nal had supplied, and would supply, such stores to the lorces on Navy Island: 
 Will any gentleman here undertake to distinnuish, in principle, between tho 
 cases 1 have here supposed, and the case of the attack on tlie Caroline as it actu- 
 ally occurred { No, no; they are cases of more breadth and magnitude, and 
 there might have been a greater destruction of property and of life, but the char- 
 acter of the transaction would have been the same. It is only enlarging a little 
 the scale of the niap, that we may see more distinctly the character and features 
 of the country we are «!xploring. 
 
 Mr. Speaker, quitting now the grounti 1 have occupied thus far, I nuist take 
 the libertv to sui'gesl another position, which I assume in this case, and to which 
 I have alrcad\ allud"d, in reference to the duty of the courts in New York, in re- 
 <;ard to McLeod. The time that remains to me will allow me to do little more 
 than make the suggestion. 
 
 I have before referred to the distinct fact that, in an early stage of this business, 
 the President — the tlxecutive of the Federal Government — took upon himself to 
 determine the character of the transaction by whicii the Caroline was destroyed, 
 and that that decision had never been changed. By determining that this was au 
 act of war, directed against the LInited Stalen, it resulted that, quoad hoc, the 
 relation between the United States anl (ireat Britain was a relation of war, 
 and not of peace. This, then, was, in substance and efi'ect, the decision in the 
 case — a decision which it was the province of the F^xecutive to make, and which, 
 once made, was binding and conclusive on all persons and parlies who might be 
 affected by it, and on every court in the country. 
 
 On this point it is that 1 (|uote a single authority. It had been determined by 
 Kxecutive authority in Entdand that a certain port in St. Domingo, at a certain 
 period, (about the year 1807,) was no longer in possession or under the dominion 
 of France. ,\ (piestion in relation to trading at this port arose in the courts, and 
 it was in reference to that question that Lord Ellenborougli said,* " It belongs to 
 the Government of the country to determine in what relation of peace or war any 
 other country stands towards this ; and it woidd he unsafe for courts of Justice to 
 
 • 15, East R. p. 90. 
 
14 
 
 take upon them, without tlmt authority, to decide upon these relations. But when 
 the Crown h;is decided upon the relation of peace or war in which another coun- 
 try stands to this, there is an end of the question ; and, in the ahsence of any ex- 
 press promulgation of the will of the sovereign in that respect, it may be collect- 
 ed from other acts of the State." " The courts cannot decide adversely to the 
 declaration of the sovereign upon that point." 
 
 Mr. Speaker, I shall not pursue the case further. 1 do not in this place, what- 
 evf>r I mii;hl do elsewhere, impeacii the opinion of the Supreme Court of my State, 
 so far as that opinion was judicial in its characti-r. The court decided that they 
 could not leirally discharge McLeod on habeas corpus. Very Well ; 1 regret that 
 the judges did not stop there. But, with the whole of the facts he.fore them, with 
 facts to show what the character of the transaction in the destruction of the Caro- 
 line was, and what the Govennnenl of tlie United Slates had decided and declar- 
 ed it to have beeti, and thougii there was no longer any matter or parties before 
 them, upon which, or between whom, they could adjudicate, yet they went on to 
 give their opinions in the case, and, in so doin;r, thus committed, in my humble 
 judgment, a triple error and injury — first, in giving any opinion at all in a case 
 where they could decide nothing by it judicially ; next, in giving an opinion too 
 palpably wrong to admit of doubt or question ; and, finally, in attempting, by that 
 opinion, to reverse the high d»'cision of the Fxecutivc in a national matter with 
 which th(;y had no ri^ht whatever to intermeddle. 
 
 Once tor all, sir, let me here say — not, perhaps, to prevent, hut to condemn he- 
 forehand, all misri-presentations of my sentiments on this snbji'ct — that I regard this 
 transaction, the destruction of the Caroline, as' a high-handed outrage, and among 
 the very rankest of the many rank and gross outrages which have been committed, 
 at sundry times, by the authority of Great Britain, in the name of thai hauglity 
 nation. And in regard to the persons concerned in it, there was an apparent rea- 
 dir>ess and alacrity in ihem for this bloody business, which has aroused, and justly 
 aroused, a sense of burning indignation towards tliem in the breast of every riglu- 
 hearted American. The vainglorious boasting of McLeod is almost enough to 
 make a Clirisiian wish to give his offal to the dogs. Sir, the name of no man 
 connected with this outrage can or ought to he mentioned, in any company where 
 Americans are assembled, without all voices being raised in one common shout of 
 execration. And I doubt not that, at this moment, the resolution lives and burns 
 in a thousand patriot hearts to seek out, at any distance of time, on the very ear- 
 Jiest lawful occasion, or single out in the first battle field in which tiKjy shall dare 
 show themselves, every man, high or low, who is known to have had a part in 
 that deed of butchery and blood, and immolate him to the manes of our murdered 
 countrymen. What I want is, that they should wait for a lawjul occasion. 
 
 Mr. Speaker, I cannot tell what is to be the end of the controversy between 
 Great Britain and us. I trust that our Government will not softer itself to be 
 turned aside from its high duty by any collateral matter, but will keep England 
 steadily to the great issue which it has tendered ; and that, above ail, it will yield 
 nothing to any attempts, in whatever quarter made, to take the mai.agement of 
 our foreign affairs and relations out of its hands. 
 
 In my opinion. New York has gone quite far enough, especially considering the 
 political relation in which the authorities of the Stale stand to those of the United 
 States, in thwarting the proper views and action of this Government in a matter 
 of great national interest. Talk of Federal interference and State rights in New 
 York ! Sir, she has no inherent or other weakness to make it necessary for her 
 to gasconade about State rights ; she can afford to do her whole duty, ns a mem- 
 ber of the confederacy, towards the Federal Government ; and, above all things, 
 I want her to know that there is no harvest of glory left in all the broad field of 
 nullification for her to reap. 
 
 Sir, this man McLeod ought to have been released by some appropriate pro- 
 
15 
 
 ceeding in tlio courts witliout a trial. He sliould either iiavp. been discharged on 
 habeas corpus or by a nolle prosfqui, entf red by tlie Attorney (ieneral, under 
 the direction of tiie (lovernor, or be should iiiive been let to bail on his own recog- 
 nizance. But it seems he is to be put to iiis trial before a jury. Well, sir, he 
 will be acquitted ; admitting it [)roved that he was one of the party that attacked 
 and destroyed the Caroline, he will be acquitted, and accjuitt'id on the law of the 
 case as i have here presented it. ISir, they n)i^ht take a jury from Lockport, 
 half of whom should be " sympathizers" or "patriots" — for 1 profess to know 
 what honesty a Lockport jury is capable of, in times oftiie greatest excitement — 
 I have tried them in such a time — and they mi^ht send Mr. Justice Cowen to pre- 
 side at the trial, as another judge of the Supreme ('ourt was sent to preside there 
 on another occasion — the occasion to which I have just alluded — and he might 
 appp,ar there with this learned opinion of the whole bench to back him ; and, my 
 life for if, only let McLeod be faiihfully deA-nded, as he would be if he had the ser- 
 vices of his present counsel, no such jury could be found that would pronounce 
 him piiilly. I know these people who compose the juries in our court: of law in 
 New Vork ; and, whatever others migiit do, they cannot be made deliberately to 
 stain their iiinds and souls with the blood of any man, liowever odious, who is 
 shown to lie innocent of any hgal oflcnct^, ihouch ihey he offered all the securities 
 and immunities for their own crinie which the imposius^' forms of judicial proceedings 
 can afford. Tiie actpiittai of McLeod will relieve the main issue between the 
 two countries, in relation to the destruction oftiie Caroline, of a collateral matter, 
 unhappily thrust into the case, and leave the American (Jovernment free and un- 
 embarrassed, 10 bring the dispute to a decision ; so that if, after all proper and 
 earnest endeavors to avoid the necessity, we shall be compelled to take up arms 
 in the case, we shall go to war, not in defence of a judicial murder, as some would 
 seem disposed to have us, but in vindication of the sovereignty, the independence, 
 and honor of the country, against a great national wrong and injury, for which we 
 could not obtain redress in any other way. 
 
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