interpret. The British government proposed to hold the Federal government of the United States directly responsible, under the threat of war, for the imprisonment of one of its subjects, without regard to any plea of non-liability, based upon the internal structure of the Federal Union. Never before, or perhaps since, has the nation been so near the brink of war upon an international question involving the relative jurisdictions of the Federal and State authorities.

§ 5. DIPLOMATIC DILEMMA OF THE SECRETARY OF STATE

Mr. Webster was now called upon to meet the whole issue which was joined with Great Britain, growing out of the destruction of the "Caroline" and the imprisonment of Mr. McLeod. The complicated problem presented to the new Secretary of State may perhaps be reduced to three main questions, namely: (1) Whether the destruction of the "Caroline" by an armed Canadian force in American waters was a violation of the territorial rights of the United States; and if so, whether such violation should be condoned on the plea of necessity and legitimate self-defense. (2) Whether the individual persons engaged in a public act under orders of their superior officers and for which public act their own government had assumed entire responsibility, can be held personally amenable to a judicial process. And (3) whether, under the existing Constitution and laws of the United States, the Federal government has the power to interfere in the judicial proceedings of a state court in a case involving an offence against a state, and when such case also involves a question of international law, the

decision of which may affect the international relations between the United States and a foreign power.

The last mentioned question was of the most pressing importance in view of the insistent demand of Great Britain for the immediate release of McLeod. Whether the Federal government possessed the legal authority to interfere in the proceedings of a state court must, of course, be determined by reference to the Constitution and to the laws of Congress. "The Constitution and all laws of the United States which shall be made in pursuance thereof" are declared to be "the supreme law of the land, and the judges in every state shall be bound thereby, anything in the Constitution or laws in any State to the contrary notwithstanding." (Const. Art. VI, sec. 2.) With reference to the Federal judiciary it is provided that "the judicial power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may, from time to time, ordain and establish." (Ibid., Art. III, sec. 1.) The Constitution specifically defines the various kinds of cases over which the Supreme Court shall have jurisdiction; and among these there is no provision for such a case as the present one. It is evident that all the judicial power of the Federal government, not vested in the Supreme Court, must be provided for and apportioned among the inferior courts, ordained and established by Congress. In other words, the jurisdiction of the Federal inferior courts must be determined by Congressional legislation. In respect to the case before us it was found that Congress had made no law which justified the proposed interference with a state court. It was, therefore, evident to Mr. Webster that through the failure of proper Congressional legislation the

Federal government was without any authorized power to interfere for the release of Mr. McLeod. The humiliating fact was thus made clear that under the existing laws of Congress, the question whether the United States should or could accede to the imperative demand made by Great Britain, backed as it was by a threat of war, was solely within the jurisdiction of a state court.

In this delicate and embarrassing dilemma, Mr. Webster resorted to a most extraordinary procedure which, it is safe to say, was never employed before. As it was impossible to bring the case within the jurisdiction of the Federal courts, Mr. Webster determined to use all the skill and influence of the departments of State and Justice in assisting the counsel of Mr. McLeod to obtain the release of the prisoner through the procedure of the state courts. This could only be obtained either: (1) by a nolle prosequi, that is, an order to suspend further criminal proceedings, which order, at that time, could be issued only by the Governor of the State; or else (2) by a writ of habeas corpus issued by the Supreme Court of the State.

In order that there might be no further complications growing out of a disputed question of international law, Mr. Webster accepted the contention of the British minister, that individual persons engaged in a public act under public authority, are not themselves amenable to ordinary judicial procedure. He expressed his opinion in these words: "The government of the United States entertains no doubt that, after the avowal of the transaction as a public transaction authorized and undertaken by the British authorities, individuals concerned in it ought not, by the general usages of civilized states, to be holden re

sponsible in the ordinary tribunals of law for their participation in it." (Mr. Webster to Mr. Fox, April 21, 1841.) This seemed to settle, once for all, the mooted question of international law, and to exclude it from all further consideration. At the time of making this concession, Mr. Webster assured the British minister that the case would now be easily disposed of by a writ of habeas corpus, and that "a tribunal so eminently distinguished for ability and learning as the Supreme Court of the State of New York, may be safely relied upon for the just and impartial administration of the law in this as well as other cases."

§ 6. THE FEDERAL APPEAL TO THE STATE FOR RELIEF

After thus attempting to allay the importunity of the British government, Mr. Webster set to work to assist the counsel of McLeod to conduct the case. before the state courts. He gave instructions to the Attorney-general of the United States as follows: "Having consulted with the Governor, you will proceed to Lockport, or wherever the trial may be holden, and furnish the prisoner's counsel with the evidence of which you may be in possession material to the case." And to emphasize the attitude of the Federal government in the matter he said to the Attorney-general: "You are well aware the President has no power to arrest the proceedings in the civil and criminal courts of the State of New York. If the indictment were pending in one of the courts of the United States, I am directed to say that the President, upon the receipt of Mr. Fox's last communication, would

have immediately directed a nolle prosequi to be entered." (Mr. Webster to the Attor. Gen., 1841.)

With these instructions the Attorney-general of the United States repaired to the State of New York on his strange mission-to appeal to the state authorities to relieve the Federal government from the difficulties growing out of a diplomatic controversy with a foreign power. The most summary way to solve the present difficulty would be to call upon the Governor to suspend further criminal proceedings by a nolle prosequi, which he had the legal power to do. But the Governor, who was at that time William H. Seward, refused to issue such an order, and complained that the Federal government's assistance in McLeod's defense was an "unwarrantable interference by Webster in the internal affairs of the State of New York." Thus it was that the efforts of the Attorney-general acting under the instructions of the Secretary of State, who was proceeding under the directions of the President of the United States, was at the outset balked by the Governor of the State.

There remained but one other resource, and that was to apply to the proper State court for the discharge of the prisoner upon a writ of habeas corpus. McLeod was therefore brought before the Supreme Court of the state. His discharge was sought on the ground. that, even though he had any concern in the destruction of the "Caroline," he had acted therein as a soldier under orders from his superior officers in a military expedition, planned and authorized by the British colonial government of Canada, afterward avowed and sanctioned by the Queen's government in England. Therefore, the prisoner should be discharged from the custody of the State, not being amen