Lord Ashburton thus rested his claim, and in the same letter and spirit tendered an apology for the violation of the United States' right of territory in the seizure of the Caroline, "which transactions," he says, "are connected with each other."

His Lordship then does not wait for the reply of Mr. Webster as to the adoption of a provision for more prompt means of redress, in cases like McLeod's, but, reposing confidence in advance in the proper action of the American government, closes his letter by saying, in reference to both these subjects of controversy: "I trust, sir, I may now be permitted to hope that all feelings of resentment and ill will resulting from these truly unfortunate events may be buried in oblivion and that they may be succeeded by those of harmony and friendship, which it is certainly the interest, and I also believe the inclination of all to promote."

Mr. Webster, in his reply to the subjects of this letter, adverting to the matter .of McLeod, stated the reasons why delay had occurred in his case, and that "in regular constitutional governments persons arrested on charges of high crimes can only be discharged by some judicial proceeding. It is so in England. It is so in the colonies and provinces of England." He further says: "It was a subject of regret that McLeod's release had been so long deferred;" and, in answer to the question proposed to him by Lord Ashburton, stated: "It was for the Congress of the United States, whose attention has been called to the subject, to say what further provision ought to be made to expedite proceedings in such cases, and that the government of the United States holds itself not only fully disposed, but fully competent, to carry into practice every principle which it avows or acknowledges, and to fulfill every duty and obligation which it owes to foreign governments, their citizens or subjects."

During the same month, on the 29th of August, 1842, Congress passed a law by which immediate transfer of jurisdiction might be made to the courts of the United States of all cases where any persons, citizens, or subjects of a foreign state, and domiciled therein, should be held in custody on account of any act done under the commission, order, or sanction of any foreign state or sovereignty.

The delay, therefore, attendant on the previous means of removal of such cases to the jurisdiction of the United States courts for their decision, which was the only ground of complaint, was thus provided against, and every suggestion which had been made on the subject was thus fully met and answered.

In reference to the other grounds of complaint-the violation of the rights of territory of the United States in the seizure of the CarolineMr. Webster, in reply to the declarations of Lord Ashburton, thus disposes of the matter in the same letter: "Seeing, he says, that the transaction is not recent; seeing that your lordship, in the name of your government, solemnly declares that no slight or disrespect was in

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401

tended to the sovereign authority of the United States; seeing it is acknowledged that, whether justifiable or not, there was yet a violation of the territory of the United States, and that you are instructed to say that your government considers that as a most serious occurrence; seeing, finally, that it is now admitted that an explanation and apology for this violation was due at the time, the President is content to receive these acknowledgments and assurances in the conciliatory spirit which marks your lordship's letter, and will make this subject, as a complaint of violation of territory, the topic of no further discussion between the two governments."

These subjects of difficulty and controversy between the two countries were thus fully and finally adjusted, so that the able and patriotic statesmen by whom this settlement was effected trusted, in the words of Lord Ashburton, "that these truly unfortunate events might thenceforth be buried in oblivion."

The question then arises, what was the effect of this settlement on the private claims of any citizen of either country against the other? It is quite clear that this settlement was not made, leaving the private wrongs of the owners of the Caroline to be pressed against the British government for adjustment by an American agent; nor were the claims of McLeod to indemnity for injuries he may have received for supposed participation in these transactions to be set up through an agent of the British government against the United States.

Such a construction of the adjustment made between Mr. Webster and Lord Ashburton would be a violation of the whole tenor of the correspondence between the two governments; and of the international ground on which they both concurred in placing the collisions between the two countries. In my view the entire controversy, with all its incidents, was then ended; and if the citizens of either government had grievances to complain of, they could have redress only on their own governments, who had acted as their principals, and taken the responsibility of making the whole matter an international affair, and had adjusted it on this basis. *

*

BATES, Umpire. The commissioners under the convention having been unable to agree upon the decision to be given with reference to the claim of Alexander McLeod, of Upper Canada, against the government of the United States, I have carefully examined and considered the papers and evidence produced on the hearing of the said claim.

This case arose out of the burning and destruction of the American steamboat Caroline, at Schlosser, in the state of New York, on the Niagara river, by an armed force from Canada, in the year 1837, for which the British government appears to have delayed formally answering the claims of the United States, until 1840, when the claimant was arrested by the authorities of the state of New York on a charge of murder and arson, as having been one of the party which destroyed the "Caroline." The British government then assumed the

SCOTT INT. LAW-26

responsibility of the act, as done by order of the government authorities in Canada, and pleaded justification on the ground of urgent necessity.

From this time the case of the claimant became a political question between the two governments, and the United States used every means in their power to insure the safety of the claimant, and to procure his discharge, which was effected after considerable delay.

It appears by the diplomatic correspondence that the affair of the "Caroline," the death of Durfee, who was killed in the affray, and the arrest of the claimant, were all amicably and finally settled by the diplomatic agents of the two governments in 1841 and 1842.

The question, in my judgment, having been so settled, ought not now to be brought before this commission as a private claim. I therefore reject it."

79 See, also, People v. McLeod, 25 Wend. (N. Y.) 483, 37 Am. Dec. 328 (1841); Id., 1 Hill (N. Y.) 375, 37 Am. Dec. 328 (1841).

In speaking of the New York court, Mr. Webster said: "I was utterly surprised at the decision of that court on the habeas corpus. On the peril and at the risk of my professional reputation, I now say that the opinion of the court of New York in that case is not a respectable opinion, either on account of the result at which it arrives, or the reasoning on which it proceeds." Webster's Works, Vol. V, p. 129. See, also, 26 Wend. (N. Y.) 663, and 3 Hill (N. Y.) 635, for criticism and defence of Justice Cowen's opinion in 25 Wend. 483, 567, 37 Am. Dec. 328 (1841).

Further instances are: The seizure of St. Marks (1 Wharton's Digest [2d Ed.] $50b [1887]; 2 Moore's Digest, 402, 403 [1906]) holding that necessity justifies an invasion of foreign territory so as to subdue an expected assailant, and the seizure of Amelia Island, in 1817 (1 Wharton's Digest, § 50a; 1 Moore's Digest, 42, 76, 173, 175; 2 Moore's Dig. 80, 406). In the technical language of private as distinguished from public law, these transactions amounted to the abatement of a nuisance, the right to do which exists in the aggrieved party. Its exercise, however, is decidedly hazardous. 3 Black. Com. 5, and Pollock's Torts (10th Ed.) p. 439 (1916).

These instances were on land: the case of the Virginius was on the high

seas.

"The Virginius was registered in the United States and carried the Ameri can flag; but, as it eventually appeared, she was really the property of certain Cuban insurgents, and was employed in aid of the rebellion in Cuba. On the 9th of July, 1873, she arrived at Kingston, Jamaica, and on the 23d of October she cleared ostensibly for Limon Bay in Costa Rica, but really for the coast of Cuba. Being chased by a Spanish warship, she put into Port-au-Prince, Hayti. Thence she proceeded again to the coast of Cuba, and was again chased by a Spanish war vessel, the Tornado, and was captured ten or fifteen miles from the coast of Jamaica, on the 31st of October. She was taken to Santiago de Cuba, where a court was assembled for the trial of the persons found on board-155 in number. Of these four were tried on the 3d of November, and shot on the 4th, thirty-seven on the 7th, and sixteen on the 8th. Among those executed were nine Americans and sixteen British subjects.

"The government of the United States, supposing that its rights on the high seas had been violated, demanded reparation. And by an agreement of the 29th of November, Spain stipulated to restore the Virginius and the survivors of the passengers and crew, and to salute the flag of the United States on the 25th of December following, unless Spain should in the mean time prove that the vessel was not entitled to carry said flag. The matter was submitted to the Attorney General of the United States, who, after SCOTT INT.LAW

careful examination, reported on the 12th of December that the registry of the Virginius was fraudulent, and that she had therefore no right to carry the American flag. But he added: 'I am also of opinion that she was as much exempt from interference on the high seas by any other power, on that ground, as though she had been lawfully registered. Spain, no doubt, has a right to capture a vessel, with an American register, and carrying the American flag, found in her own waters assisting, or endeavoring to assist, the insurrection in Cuba, but she has no right to capture such a vessel on the high seas upon an apprehension that, in violation of the neutrality or navigation laws of the United States, she was on her way to assist said rebellion. Spain may defend her territory and people from the hostile attacks of what is, or appears to be, an American vessel; but she has no jurisdiction whatever over the question as to whether or not such vessel is on the high seas in violation of any law of the United States.' Spain having proved her point, the salute to the flag was dispensed with. The vessel was delivered to the United States authorities on the 16th of December, 1873; but on her way north, sank, off Cape Fear, on the 26th of that month.

"Both the United States and England demanded reparation for the persons of their respective nationalities who had been executed by the captors of the Virginius; and this Spain eventually agreed to make. Even assuming that the vessel was lawfully seized, it was contended that there could be no justification of the summary execution of foreigners by order of a drum-head court-martial.

"The position of the Attorney General, that Spain had no right to capture such a vessel on the high seas, etc., has called forth much adverse criticism. Both Woolsey and Dana justified the capture at the time. "The register of a foreign nation,' said Dana, 'is not, and by the law of nations is not recognized as being, a national voucher and guaranty of national character to all the world, and nations having cause to arrest a vessel, would go behind such a document to ascertain the jurisdictional fact which gives character to the document, and not the document to the fact.' It was the duty of the Spanish captain, says Woolsey, to defend the coasts of Cuba against a vessel which was known to be under the control of the insurgents, for which he had been on the lookout, and against which the only effectual security was capture on the high seas. Woolsey's International Law (6th Ed.) pp. 368, 369.

"In a pamphlet on the 'Case of the Virginius,' Mr. George T. Curtis took similar ground. 'We rest the seizure of this vessel,' he says, 'on the great right of self-defence, which, springing from the law of nature, is as thoroughly incorporated into the law of nations as any right can be. [No state of belligerency is needful to bring the right of self-defence into operation. It existed at all times-in peace as well as in war. The only questions that can arise about it relate to the modes and places of its exercise.]'" Freeman Snow, Cases and Opinions on International Law, pp. 179, 180 (1893).

See, also, on the question of self-defence, Great Britain's seizure of Danish Fleet in 1807, Hall's International Law (4th Ed.) 285.

The right to visit and search foreign merchant vessels upon the high seas does not exist in time of peace, other than as the result of treaty stipulation. It is essentially a war power and its exercise is rightly incident thereto.

SECTION 4.-EXTRADITION **

RESPUBLICA v. DE LONGCHAMPS.

(Court of Oyer and Terminer at Philadelphia, 1784. 1 Dall. 111, 1 L. Ed. 59.)

MCKEAN, Chief Justice. 81 Charles-Julian De Longchamps: * * These offences having been thus legally ascertained and fixed upon you, his Excellency, the President, and the Honorable the Supreme Executive Council, attentive to the honor and interest of the State, were pleased to inform the Judges of this Court, as they had frequently done before, that the Minister of France had earnestly repeated a demand, that you, having appeared in his house in the uniform of a French Regiment, and having called yourself an officer in the troops of his Majesty, should be delivered up to him for these outrages, as a Frenchman to be sent to France; and wished us in this stage of your prosecution, to take into mature consideration, and in the most solemn manner to determine :

1st. Whether you could be legally delivered up by council, according to the claim made by the late minister of France?

2ndly. If you could not be thus legally delivered up, whether your offences in violation of the law of nations, being now ascertained and verified according to the laws of this commonwealth, you ought not to be imprisoned, until his most christian majesty shall declare, that the reparation is satisfactory?

And 3dly. If you can be thus imprisoned, whether any legal act can be done by council, for causing you to be so imprisoned?

To these queries we have given the following answer in writing: "In compliance with the request of his excellency, the President, and the honorable the Supreme Executive Council, we postponed passing sentence upon Charles-Julian De Longchamps, until we had maturely considered the three questions above proposed for our determination. On the 10th and 12th days of July the several questions were argued before the court by five counsel, two on the affirmative and three on

80 Extradition exists between the states of the American Union, in accordance with article 4, § 2, of the Constitution of the United States, which provides that:

"A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the Crime."

On interstate rendition, as distinguished from international extradition, see State v. Patterson, 116 Mo. 505, 22 S. W. 696, post, p. 413 (1893).

81 For the statement of facts of this interesting case of first impression, see ante, p. 295.

The portion of the case here given relates to the question of extradition.