able to judicial proceedings, and because the whole transaction in which he was engaged was a matter solely for international negotiation.

§ 7. PROCEEDINgs Before the New York Supreme COURT

There are certain remarkable features in the proceedings before the New York Supreme Court which are worthy of special notice. In his argument before the court, the counsel for McLeod insisted that the prosecution of this case by the State involved certain undesirable results. He very pertinently said: “It seeks to make the municipal courts of New York exercise jurisdiction of the rights of nations. It deprives the national government of the power and control over foreign relations conferred upon it by the Constitution and drags the matter down to adjudication by the municipal laws of the State."

A single statement should here also be quoted from the argument of the counsel for the prosecution (the Attorney-general of the State)-which statement, though incidental to his own argument, is very significant and relevant to the main purpose of our present discussion. In the course of his argument he made this most apposite remark: "It is not my purpose to go into the question of the jurisdiction of the United States courts and the State courts. No doubt this would be a proper subject for United States legislation. Perhaps the Constitution is broad enough to cover a case of this kind, and therefore an act might be passed to declare which court, Circuit or District, should take jurisdiction. But no such law has been passed, and therefore no court of the United States

has jurisdiction of it." (25 Wendell's Reports, 531.) The learned counsel evidently meant to be understood by this statement that the reason why this case, involving important international relations, could not be tried before a Federal court was due not to any defect of the Constitution, but to the failure of proper Congressional legislation, which had been authorized by the Constitution.

But one of the most remarkable features of this remarkable case is yet to be mentioned. Almost the entire argument of the prosecuting counsel, as well as the opinion of the Court (together covering 119 pages of the twenty-fifth volume of Wendell's Reports), was devoted to an elaborate argument upon the very principle of international law which had now ceased to be a matter of controversy between the United States and Great Britain, namely, whether persons engaged in a public act under orders from their superior officers and for which their own government had assumed the sole responsibility, were personally amenable to judicial proceedings.

This was the specific point of international law which Mr. Webster had already conceded to the British minister in the interests of peace, and was no longer a matter of controversy between the two governments. But in spite of this fact, the learned Justice of the Supreme Court of the State of New York permitted this question of international law to be reopened, and upon its decision to depend the issue of the writ of habeas corpus and, consequently, the question of war with Great Britain; and the present counsel, who were accustomed to discuss questions of municipal law, were now called upon to enter the larger arena of international jurisprudence. Quota

tions were freely made from the writings of the great publicists-Grotius, Vattel, Burlamaqui, Rutherford, Kent and others: the contending counsel, of course, arriving at opposite conclusions.

It will be remembered that Mr. Webster had assured the British minister that, on account of its great learning and ability, the Supreme Court of New York could be safely relied upon to render a just and impartial decision. What must have been his surprise and astonishment when this court, not only permitted the reopening of the question that he had closed with Great Britain, but in its decision actually annulled the principle of international law which Mr. Webster had conceded to the British minister; the Court finding, contrary to the principle now accepted by both the contending governments, that persons engaged in a public act under the authority of their own government are not relieved from personal liability! The attempt to obtain the release of McLeod upon a writ of habeas corpus thus proved a failure. The last resort of the Federal government to avert the threatened war with England was now exhausted. The prisoner was remanded to jail to await his trial in the State Court on the original indictment found against him by the Grand jury of Niagara county.

§ 8. THE CLOse of the Case and the REMAINING PROBLEM

The case had now reached a stage of almost tragic interest. The conviction and execution of McLeod by the authorities of the State of New York would, without the slightest doubt, be the signal for war between Great Britain and the United States. But from this

strain of intense anxiety, there followed a grateful relief, turning the tragedy, into an almost comic dénouement. At the trial, which was now transferred from the Niagara court of sessions to the Supreme Court of the State, it was approved that McLeod was an adventurous and blustering braggart, fond of boasting of his imaginary exploits before a wondering crowd, and was not, in fact, either directly or indirectly, connected with the destruction of the "Caroline," and had nothing to do with the murder of the American citizen found dead at the time. On the plea and proof of an alibi, he was therefore discharged and ceased to be a factor in the judicial and diplomatic controversy.

With McLeod out of the way, the settlement of the "Caroline" affair proved to be a comparatively easy task. The British government acknowledged that the destruction of the vessel in American waters was a violation of the territory of the United States, and that an apology should have been made at the time. Mr. Webster accepted this apology, and admitted that there may have been some ground for the plea of selfdefense; laying down the principle, which was accepted by both parties, that the violation of territorial sovereignty might be justified on the ground of “a necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation." With these amenities the case of the "Caroline" was closed.

But while the diplomatic incident was closed, the acquittal of McLeod did not remove the legal difficulties which had so clearly been brought to light. It is sometimes supposed, and perhaps openly alleged-as was done by Secretary Forsyth, at the beginning of

this controversy-that with our dual system of Federal government, it is impossible for the Federal authorities to interfere with the judicial processes of a State court, even though the case may involve a question of international law and the possible interruption of the peaceful relations with a foreign power. The fallacy of this claim was clearly set forth by Mr. Fox, the British minister, in his reply to Mr. Forsyth. It was shown in his reply that the international liability of the United States to a foreign power cannot be affected by the federal structure of the American government.

Moreover, it has been seen that the inability of the Federal government to interfere with the jurisdiction of the State courts, in a case like the present one, is not due to our Federal system of government or to any essential defects in the Constitution. If the Constitution, in the distribution of judicial powers, has conferred upon Congress the authority to provide for such an emergency as that herein described, and Congress has failed to exercise the power delegated to it, then it is this branch of the government that is at fault, and not the Constitution. In the discussion of the McLeod case, the Attorney-general of the State was evidently correct when he gave as his opinion that "the Constitution is broad enough to cover a case of this kind, and an act of Congress might be passed to declare what court should take jurisdiction. But no such law has been passed, and therefore no court of the United States has jurisdiction of it."

It need hardly be said, in conclusion, that the principles we have considered have a far wider application than to the complicated state of affairs growing out of the destruction of the "Caroline" and the impris