ALEXANDER MCLEOD.

Where a citizen of Canada was arrested in the State of New York, for a criminal offence against the laws of the State, arising from his being engaged in the destruction of the steamer Caroline, in New York, with a party from Canada, during an insurrection in that province, and Great Britain demanded his release on the ground that the acts complained of were done by the orders of that government, and that the nation was responsible and not the individual; and where the difficulties arising from these causes were afterwards adjusted between the two governments, held that such adjustment barred all claims of citizens of either country against the other for individual damage sustained, and that such cases were not within the provisions for the settlement "of outstanding claims," under the convention of February 8, 1853.

Where a citizen of another government was arrested in this country for a criminal offence, and claimed his discharge on the ground that the acts complained of were done under the authority of his government, it does not necessarily entitle him to a release. Time must be had for the action of the proper tribunals on such plea, and the ultimate decision of a court in the last resort, where the same becomes necessary.

Neither does any claim for damage arise where the means provided by law for the adjustment of such questions are less speedy than would be desirable, and may require amendment, or error has arisen, in courts of subordinate jurisdiction, from which appeal might have been taken or correction had.

Alexander McLeod, a British subject resident in Canada, was arrested in Lewistown, in the State of New York, in November, 1840, on a charge of being concerned in the seizure and destruction of the steamer Caroline, attended with loss of life, in the State of New York, on the 29th of December, 1837.

During the pendency of the prosecution, Great Britain notified the government of the United States that the seizure of the Caroline was made under the authority of Great Britain, and claimed the discharge of McLeod on that ground.

He was not discharged, but was tried and acquitted, and now brings his claim before this commission for damages and expenses arising from his detention and trial.

The facts in the case are more fully set forth in the opinion of the commissioner, together with the correspondence on this subject between the two governments relating to the settlement of the same, so far as it has a bearing on the jurisdiction of the commissioners over the claim.

The case was fully argued. On behalf of the claimant,
MCLEOD appeared per se, and by

HANNEN, agent and counsel for Great Britain.

THOMAS, agent and counsel for the United States.

HORNBY, Commissioner of Great Britain:

Considered the adjustment made between the two governments as a settlement merely of the international points of controversy arising in the case, and that any private claims of damage on the part of McLeod remained an open question among outstanding claims existing at the date of the convention.

He was of opinion that McLeod was entitled to immediate release on the assumption by the British government of his acts, and the communication of proper notice of this fact to the American authorities. It then became a national controversy and ought not to have been further prosecuted against an individual.

He held further, that the detention was longer than was necessary in any event, and was rendered unduly severe on account of public excitement, which it was the duty of the government to have repressed, and that from this cause the claimant was exposed to hardship and much expense, for which he was justly entitled to compensation.*

In this case, and some others which were disposed of at a late day during the sitting of the convention, a full report of the decisions of the commissioner was not drawn up at the time, but was to have been subsequently forwarded, and placed on file. It is much to be regretted that they have not yet been received, and therefore a brief note only of these opinions can be furnished.

UPHAM, United States Commissioner:

The claim of Alexander McLeod, which has been presented for our consideration, renders it necessary to recite briefly the details of border collisions between the United States and the Canadas, which occurred some seventeen years since, and which are set forth in the documents presented in this case.

On the 29th of December, 1837, the steamer Caroline, belonging to a citizen of the United States, was lying in the Niagara river, along side the wharf at Schlosser, in the State of New York, having on board a number of American citizens.

A civil commotion at the time prevailed in upper Canada, and it was alleged that the Caroline had been used to carry arms, and munitions of war, from the shores of the State of New York to an insurrectionary party on Navy Island, then in arms against the government of that province.

While the Caroline was thus within the jurisdiction of the State of New York, a party of her Britannic Majesty's subjects left the shore of Canada, came within the limits of the State of New York, seized the Caroline, and destroyed her. During the collision, arising from the seizure, Amos Durfee, a citizen of the United States, was killed, and was found dead on the wharf; and it was supposed the lives of other citizens were lost on board the steamer.

Complaint was early made to Great Britain of the public wrong done to the United States by this invasion and violation of her rights of territory, and the injuries there committed, but no satisfaction or apology had been made for such wrong for a period of three years after the event, when, in November, 1840, Alexander McLeod, who was a citizen of Great Britain and a resident of Upper Canada, came to Lewiston, in the State of New York, and was there arrested on the charge of having been concerned in the seizure of the steamer Caroline, and the wrongs connected with it. On examination, he was committed to the jail in Niagara county; and in February, 1841, the grand jury of that county found a bill of indictment against him for the murder of Durfee. The case was removed to the supreme court for trial, and was afterwards transferred to another county to avoid the local excitement existing on the Niagara border.

The arrest of McLeod revived at once the consideration of the whole

subject of the border difficulties. In March, 1841, Mr. Fox, then minister of Great Britain to the United States, demanded, formally, in the name of the British government, the immediate release of McLeod, and set forth the grounds upon which this demand was made, alleging "that the transaction, on account of which McLeod was arrested, was a transaction 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 subjects, and that they were not personally and individually answerable to the laws and tribunals of any foreign country." It was thus contended that all liability of McLeod for the acts charged against him was merged in the national character given to the transaction by the British government.

Mr. Webster, in reply, on the 24th of April, 1841, stated "that the communication of the act being formally made that the destruction of the Caroline was an act of public force by the British authorities, the case had assumed a decided aspect," and measures would be taken accordingly.

The United States government accepted at once the issue tendered in this form, and insisted on satisfaction or apology for the violation of its rights of territory in the seizure of the Caroline; at the same time the government took immediate measures to communicate, in a proper manner to the judicial authorities, the evidence of the international defence thus set up by the British government, that it might avail to the benefit of McLeod.

The counsel for McLeod sued out a writ of habeas corpus, returnable before the supreme court of New York, and claimed his discharge on the ground thus interposed. It was holden by the court, however, as is stated by Mr. Webster in his letter to Lord Ashburton of August 6, 1842, "that, on this application, embarrassed as it would appear by technical difficulties, McLeod could not be released." Further hearing was proposed on this subject, by a transfer of the case to the United States court for the determination of this question, but McLeod objected to the delay necessarily attendant on such a proceeding, and requested, in writing, a trial by jury; a copy of which request was communicated to the British government. Shortly afterwards the discharge of McLeod was effected by the decision of a jury, and "the further prosecution of the legal question," as Mr. Webster says, was then rendered unnecessary."