HC Deb 26 August 1841 vol 59 cc263-70
Mr. Roebuck,

seeing the noble Lord the Secretary of State for Foreign Affairs in his place, would, in fulfilment of the notice he had given on the first night of the Session, proceed to ask the noble Lord certain questions as to the state of the relations between this country and the United States of America, respecting the detention of Mr. M'Leod. He had stated that he would make some few remarks to put hon. Members in possession of the real nature of the questions, and their pith and significance. The House, on Tuesday evening, had been so kind as to hear some observations of his, which would enable him now to save them; but as some misconception was abroad as to his purpose and object in what he attempted then to say, he would still address a few remarks to the House, that they might understand his object in putting these questions. His object in so doing was, as far as possible, to promote peace between this country and the United States, and any one who fancied that any question of his had any other object, was very much mistaken. His purpose was to promote peace, and, to attain that end, he thought it best that hon. Members should understand the real object of the questions he was about to put. Those questions were five in number, but they might be answered in a breath, and they related to the detention of Mr. M'Leod by the authorities of America. That detention arose out of the transactions connected with the Caroline, the attack on which in the waters of the United States gave great umbrage, not only to the people of New York, but to the United States generally. Thereupon an application was made to the Government of this country, and to that no answer was returned. It so happened, that in the meantime M'Leod happened to be in the state of New York, and from his own boastful statements respecting the transactions, and he believed incorrect ones, was arrested in consequence of the belief created upon the subject. When he was so arrested, a feeling on his behalf arose in this country, and then orders were sent out to Mr. Fox, our Minister, to make an immediate application to the government of the United States, demanding the liberation of Mr. M'Leod. An answer was made by the then American secretary, Mr. Forsyth, to the application of Mr. Fox, and to that answer he had to request the most serious attention of the house—always recollecting that that answer was given to Mr. Fox before any notice had been taken by the noble Lord the Secretary of State for Affairs of the communication which he had received regarding the Caroline. Mr. Forsyth's answer was in substance that the United States had no jurisdiction at all over the matter spoken of; that it was a subject wholly within the cognizance of the State of New York, and that the President of the United States could not give any answer, and could not interfere in the matter, though, it related to the safety of a British subject; and he went further, and said, that even supposing the President had any power, he had no wish and no feeling in the matter, which would induce him to interpose. Mr. Forsyth then went out of office, and then came in the new government, Mr. Webster being its representative in the post previously held by Mr. Forsyth. He wished to know from the noble Lord whether there had been any change in the language of the government of the United Stales, since the accession of the new government to power? It should be always recollected, and this should have been the answer made when an answer was given to Mr. Fox, that on the establishment of the government of the United States, very early in the history of those states, that they declared, that they considered themselves amenable to the international laws established among nations, and they had always declared that the sole medium of communication between them and other nations should be by means of the federal government, by means of the President; and therefore, in point of fact, we had no more notion of the State of New York, than the United States had of the county of Rutland, and the answer which should have been made to Mr. Fox was, that they did not know anything respecting the state of New York, but that all communications which should be made must be had with the President of the United States. He wished now to ascertain from the noble Lord certain facts, in connection with these transac- tions. He had put them on paper, and having put them in order, he would place the paper in the hands of the noble Lord, so that there should be no mistake upon the questions. He wished to know whether her Majesty's Government, by any formal declaration, had assumed the whole responsibility of the attack upon the Caroline? He then wanted to know whether the government of the United Slates of America, had admitted that responsibility, and had demanded reparation for the outrage and injury done to the Caroline, being a vessel belonging to the United States? Because it should always be taken into consideration, that if they demanded reparation for the injury done by the attack, it did not lie in their mouth to turn round and say, that the state of New York was the only power which had jurisdiction. Next, he would ask, whether the Government of her Majesty had stated to the government of the United States, specifically, that Mr. M'Leod had acted under the command of his superior officers, and with the express sanction of her Majesty? Fourthly, he desired to know whether her Majesty's government had demanded of the government of the United States, whether, after such a declaration, they would be able, and, at the same time, willing to guarantee the safety and the delivery up of Mr. M'Leod, notwithstanding any determination of the state of New York with regard to any proceedings now pending in the courts of that state against him? Lastly, he wished to know whether the government of the United States had admitted the validity of such authority as a protection for Mr. M'Leod, and whether the noble Lord could state any circumstances from which might be expected any justification of the continued detention of Mr. M'Leod, by the authorities of the state of New York? He believed, that it would turn out that the answers to be given to these questions would very materially relieve the minds of the people of this country, and he thought, that the importance of the subject demanded that it should be fully explained, so as to relieve the feelings of the public, promote peace, and allay that heat which he knew existed on all sides upon the subject.

Viscount Palmerston

was the last man in the House who would wish in any way to interrupt what, however, he was bound to remark upon as an irregular proceeding of the hon. and learned Member for Bath, though founded on the most laudable intentions; but the House would see that if questions on matters of great delicacy, and very complicated in their nature, were proposed by hon. Members, and were prefaced by a narration of the transactions to which they related, and were interspersed with arguments, it became very difficult for an individual who was to answer such questions, to refrain from going very much into the subject, and thus, under the form of asking a question, a debate might be brought on without notice on matters of very great national importance. He hoped, however, that he should be able to give the hon. Member the information which he asked for, and he had no doubt that the statement which he was about to make would tend to relieve the minds of any persons who might think that the present state of the question with regard to Mr. M'Leod was likely to bring on serious differences between the two countries. The narrative of the hon. Member was, he believed, substantially correct. He had no particular remark to make upon, it. It was quite true, as he had stated, that upon the first demand made by her Majesty's Government for the liberation of Mr. M'Leod, an answer was returned by the late Secretary of State in America, which was by no means satisfactory; and he was ready to admit that, as a doctrine of international law, no one country had a right to say in reply to a demand of redress for a wrong clone to another country, or to a subject of another country, that it had peculiar institutions, which prevented it from giving the redress which was due. Nations dealt with each other as aggregate communities, and one nation could know nothing of the municipal laws or the internal constitution of another. If a wrong were done, redress must given; and if the laws and constitution of the country did not enable the Government to give that redress, they must either alter the laws and change their constitution, or submit to the alternative which every country, in. such a case, was like a private individual, entitled to adopt. But in carrying this indisputable principle into practice, every Government must be guided by a sense of expediency, and a regard to the urgency of the matter under consideration. Now, although the first reply was, as he thought, entirely wrong in relation to the principles of international law, yet he had the satisfaction to inform the hon. Member and the House, that from the present Government of the United States a communication had been received, of a formal instruction given to the Attorney-General of the United States, which contained doctrines perfectly just and consistent with the law of nations, and entirely in accordance with the principles upon which the British Government had demanded the release of Mr. M'Leod; and the passage which he should read from the instructions given to the Attorney-General by Mr. Webster, answered at once two, and perhaps more, of the questions of the hon. Member, because it showed that the British Government had avowed their entire responsibility for the attack made upon the Caroline, and that the American government considered that question as one to be discussed between the two governments, and totally unconnected in any way whatever with the question how Mr. M'Leod was to be dealt with. This instruction was dated the 15th March in the present year, from Mr. Webster to Mr. Crittenden, the Attorney-General of the United States, who was proceeding to New York on business connected with the States. It recited, first, what had passed about Mr. M'Leod's arrest, and then went on say,— I have now to inform you that Mr. Fox has addressed a letter to this department, under date of the 12th inst., in which, under the immediate instruction of his government, he demands, formally and officially, M'Leod's release, on the ground that the transaction on account of which he has been arrested, and is to be put upon his trial, was of a public character, planned and executed by persons duly empowered by her Majesty's colonial authorities to take any steps, and to do any acts which might be necessary for the defence of her Majesty's territories, and for the protection of her Majesty's subjects, and that, consequently, those subjects of her Majesty who engaged in that transaction were performing an act of public duty, for which they cannot be made personally and individually answerable to the laws and tribunals of any foreign country; and that her Majesty's Government has further directed Mr. Fox to make known to the government of the United States, that her Majesty's Government entirely approve of the course pursued by Mr. Fox, and the language adopted by him in the correspondence above mentioned. There is, therefore, now an authentic declaration on the part of the British Government, that the attack on the 'Caroline' was an act of the public force, done by military men, under the order of their superiors, and is recognised as such by the Queen's Government. The importance of this declaration is not to be doubted, and the President is of opinion, that it calls upon him for the performance of a high duty. That an individual forming a part of a public force, and acting under the authority of his government is not to be held answerable as a private trespasser or malefactor, is a principle of public law sanctioned by the usages of all civilised nations, and which the government of the United States has no inclination to dispute. This has no connection whatever with the question whether in this case the attack on the ' Caroline' was, as the British Government think it, a justifiable employment of force for the purpose of defending the British territory from unprovoked attack, or whether it was a most unjustifiable invasion in time of peace of the territory of the United States, as this Government has regarded it. The two questions are essentially different, and while acknowledging that an individual may claim immunity from the consequences of acts done by him, by showing that he acted under national authority, this Government is not to be understood as changing the opinion which it has heretofore expressed in regard to the real nature of the transaction, which resulted in the destruction of the Caroline. That subject it is not necessary for any purpose connected with this communication to discuss. All that is intended to be said at present is, that since the attack on the Caroline is avowed, as a national act which may justify reprisals, or even general war, if the government of the United States, in the judgment which it shall form of the transaction, and of its own duty should see fit so to decide, yet it raises a question entirely public and political; a question between independent nations, and that individuals concerned in it cannot be arrested and tried before the ordinary tribunals, as for a violation of municipal law. If the attack on the Caroline was unjustifiable, as this Government has asserted, the law which has been violated is the law of nations; and the redress which is to besought is the redress authorised in such cases, by the provisions of that code. You are well aware that the President has no power to arrest the proceedings in the civil and criminal courts of the state of New York. If this indictment were pending in one of the courts of the United States, I am directed to say that the President, on the receipt of Mr. Fox's last communication would have directed a nolle prosequi to be entered. Nothing, therefore, continued the noble Viscount, could be more entirely honourable to the government of the United States, or more satisfactory to the Government of this country, than this public declaration of principle which had been made by the President. He believed that this paper answered all the questions of the hon. Member, but one, which was, whether the United States had made their demands, in the case of the Caroline, as for an injury to the United States at large, or as one to the state of New York in particular. Most unquestionably, their demand had been placed, upon the ground of an injury done to the United States; and in the last Session of Parliament, when he had a few words to say upon this subject, he stated that it was on that very account impossible for the United States to turn round and deny redress in the case of M'Leod, on the ground that this was a question between Great Britain and the State of New York. It was true, as stated by the hon. Member, that the constitution of the United States places all matters between the States and foreign powers in the hands of the federal government. The 10th section of the constitution, article 1, is in these terms:— No state shall enter into any treaty, alliance, or confederation, or grant letters of marque or reprisal; no state shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. Therefore, it was quite true, as the hon. Member had said, that this question could no more be said to be between Great Britain and the state of New York, than if America had felt herself aggrieved by Great Britain, it could be said, that the question was between America and the county of Rutland. But while this must be taken to be the result of that which was the real state of things, an answer was thereby afforded to a suggestion thrown out by the hon. and learned Gentleman the other evening, that the Government of Great Britain should, at the outset of the affair, have sent a special envoy or ambassador to the government of the state of New York; because such a proceeding would have been an act of nullification on the part of Great Britain, and a denial of the fundamental principles of the consitution of the United States; and the government of that country would have been entitled to resent such an interference, as being a course which the British Government had no right to take. Therefore, it was not from any neglect on the part of the Government that such a step had not been taken, but from respect which they were bound to show to the constitution of the United States. He would not enter into any speculation, nor make any conjectural statement as to what was to come. He was sure that the House would feel that it was more fitting in the present position of affairs, that he should not anticipate the course which the government of the United States might think proper to follow, in order to carry out those principles of international law which they had themselves so fully admitted, and he thought that the object which the hon. and learned Member himself had in view would be better attained by his silence.

Subject at an end.