§ 1. CANADIAN REVOLT AND DESTRUCTION OF THE "CAROLINE"

The circumstances of this case occurred during the well-known revolt against the Canadian government in the year 1837. The revolt was prompted by the desire of certain persons to bring about a reform in the existing government of Canada. The insurgents found many sympathizers among the American people, especially among those residing in the western part of the State of New York. To carry on their hostilities, the insurgents had selected, as a base of operations, a point called "Navy Island" situated on the Niagara river near the Canadian side. This point served a double purpose-not only as a base from which to harass the Canadian government, but also a suitable spot from which to maintain communications with their American sympathizers, who were ready to assist them with men and munitions of war. Such assistance would, of course, be in violation of the neutrality laws; and our President, then Martin Van Buren, made conscientious efforts to enforce these laws, but it appears that these efforts were not always very effective. Among other things, the insurgents had chartered an American steamboat called the "Caroline," which was used to ply between the American and Canadian shores for the purpose of supplying any needed military equipment.

The Canadian government naturally felt the necessity of putting a stop to the hostile acts in which the "Caroline" was engaged. Accordingly, on the night of December 29, 1837, a military force was sent out. by the Canadian authorities to destroy this vessel, which was supposed to be moored at Navy Island, that

is, within Canadian territory. But the captain of the "Caroline," in order to ensure the safety of his vessel and the crew, had taken the precaution to retire to the American side, that is, within the territory of the State of New York and the jurisdiction of the United States. She was there discovered by the Canadian force, boarded, set on fire, and left to drift over the Niagara Falls. After this melée it was discovered that an American citizen (by the name of Durfee) was killed, shot through the head by a musket-ballwhich fact betrayed the cause of his death. These were the simple facts which furnished the basis of a complicated controversy between Great Britain and the United States, and also between the United States government and the State of New York.

On receiving information of this affair, the American Secretary of State, Mr. Forsyth, addressed a note to the British Minister resident at Washington, Mr. Fox, alleging that "the destruction of property and the assassination of citizens of the United States on American soil had produced the most painful emotions of surprise and regret, and that the incident would be made the subject of a demand for redress."

In his reply to this note the British Minister, Mr. Fox, addressed a letter to Mr. Forsyth, setting forth the following points: (1) that it was admitted that the "Caroline" was destroyed by a Canadian military force under command of a British military officer; (2) that the business, however, in which the "Caroline" was engaged was clearly of a piratical character, which would of itself justify her destruction; (3) that the neutrality laws of the United States were not at the time enforced along the frontier so as to prevent Americans from engaging in hostile acts against the

British territory; and (4) that the destruction of the "Caroline," although taking place in American waters, was an act of self-defense and hence justifiable.

These claims of the British minister in justification of the alleged hostile act within American territory were not allowed by the United States government, and a formal demand for reparation was presented to the British government by the American minister at London. This letter was received and acknowledged by the British Minister of Foreign Affairs, Lord Palmerston, with a promise of due consideration.

§ 2. JURISDICTION ASSUMED BY THE STATE OF NEW YORK

Thus far the case of the "Caroline" had been made simply a matter of discussion between the two national governments, and had not been complicated by any question regarding the rights of the State of New York, within whose territory the criminal act had been committed. If the act were regarded as merely a public act, authorized by the British government and under the direction of British military officers, it would then seem to involve a purely international question, namely, whether the territorial rights of the United States had been violated-which question would come entirely within the sphere of diplomatic negotiation. But if the act were looked upon as the criminal act of private persons, resulting in the destruction of private property and the murder of a private citizen, within the jurisdiction of the State, then the person or persons engaged in such a crime should evidently be held amenable to the laws of the State.

We thus see the dual aspect of the question growing

out of the destruction of the "Caroline,"-that presented to the Federal government, and that presented to the State government. The Federal government regarded the incident from the point of view of international law, as the invasion of American soil by British subjects and the commission of hostile acts within the jurisdiction of the United States, for which the British government should be held responsible. On the other hand, from the point of view of the State government, the acts committed by the persons engaged in the affair, were infringements upon the rights of life and property, which were under the protection of the laws of the State; and hence such persons should be subject to indictment and punishment according to the municipal law. But these persons could not, as a matter of fact, be reached by the State authorities, since they had already escaped to the Canadian border.

But, by a strange turn of events, an incident soon. occurred which introduced a new feature into the case. The incident was this: A certain Canadian and British subject, by the name of McLeod, was in the habit of boasting that he was one of the destroyers of the "Caroline," and, to use his own refined language, that he had himself killed one of the "dd Yankees." This boastful and offensive assertion served to inflame the excitement already existing in the State, and a popular demand was made to indict McLeod, and to punish him should he ever appear within the jurisdiction of the State authorities. Accordingly, in the spring of 1838, a grand jury of Niagara county, wherein the criminal act was committed, found a bill of indictment against McLeod for murder and arson. McLeod was then in Canada, and

had he remained there would never have been troubled about the indictment, and would have saved the government at Washington from a serious diplomatic embarrassment. But after three years subsequent to the destruction of the "Caroline," that is, in 1840, McLeod had the temerity to show himself on American soil, in the very county in which the indictment lay. He was there promptly arrested, lodged in jail and held for trial by the Niagara court of Sessions sitting at Lockport, N. Y. The State of New York thus assumed jurisdiction in the case of McLeod, who was held as a private person for a criminal act committed within the territory and against the laws of the State.

3. THE PLEA OF NON-LIABILITY BY THE UNITED STATES

The arrest and imprisonment of Mr. McLeod brought a still further factor into the international controversy. It was three years before this time that the United States had made the demand upon the British government for reparation, on account of the violation of American territory. But up to this time no reply to this demand had been received from Great Britain; nor had the British government yet made a distinct avowal that it had assumed the responsibility of the hostile acts committed by the "Caroline." But the detention of a British subject by an American authority changed the entire aspect of affairs. Instead of the United States as heretofore, Great Britain now became the aggrieved party, and a demand was immediately made for the release of Mr. McLeod.

This demand was formally expressed in a note, dated December 13, 1840, sent to the American Sec