In particular the military, are innocent; they have acted only from a necessary obedience."

66

Indeed, in solemn war, the individual members of a nation which has declared war are not punishable by the adverse nation for what they do, because the guilt of their actions is chargeable upon the nation which directs and authorizes them to act. But even this effect may be produced, though not in the respect of all the members of the nation, yet in respect of some of them, without a declaration of war. For, in the less solemn kinds of war, what the members do who act under the particular direction and authority of their nation is by the law of nations no personal crime in them; they cannot, therefore, be punished, consistently with this law, for any act in which it considers them only as the instruments, and the nation as the agent."+

"A mere presumption of the will of the sovereign would not be suffi cient to excuse a governor or any other officer who should undertake a war, except in case of necessity, without either a general or particular order. For it is not sufficient to know what part the sovereign would probably act, if he were consulted in such a particular posture of affairs; but it should rather be considered, in general, what it is probable a prince would desire should be done, without consulting him, when the matter will bear no delay and the affair is dubious. Now, certainly, sovereigns will never consent that their ministers should, whenever they think proper, undertake without their order a thing of such importance as an offensive war, which is the proper subject of the present inquiry. "In these circumstances, whatever part the sovereign would have thought proper to act if he had been consulted, and whatever success the war undertaken without his order may have had, it is left to the sovereign whether he will ratify or condemn the act of his ministers. If he ratify it, this approbation renders the war solemn, by reflecting back, as it were, an authority upon it; so that it obliges the whole common. wealth."

• Vattel, Book III. Ch. II. § 187. Rutherford, Book II. Ch. IX. § 18.

t Burlamaqui, Part IV. Ch. III. §§ 18, 19.

23

TREATY OF WASHINGTON OF 1842.

THE NORTHEASTERN BOUNDARY.

A LEADING object sought to be accomplished, and which was accom. plished, by the treaty of Washington, was the settlement of the con. troversy between the United States and England relative to the northern and northeastern boundary of the United States.

The history of this controversy, from the treaty of peace in 1783, to its final adjustment in 1842, is given in Mr. Webster's speech in the Senate, of the 6th and 7th of April, 1846.* In the summer of 1841, Mr. Webster signified to Mr. Fox, the British Minister at Washington, that, having received the President's authority for so doing, he was then willing to make an attempt to settle the boundary dispute, by agreeing on a conventional line, or line by compromise. In September of that year the ministry of Sir Robert Peel came into power; and in December following, Lord Aberdeen, Secretary of State for Foreign Affairs, informed Mr. Edward Everett, at that time Minister of the United States at the Court of London, that the Queen's government had determined to send Lord Ashburton as a special minister to the United States, with full powers to settle the boundary and all other questions in controversy between the two governments. This information was immediately communicated by Mr. Everett to Mr. Webster, in a letter dated the 31st of December, 1841, to which Mr. Webster replied as follows:

Mr. Webster to Mr. Everett.

[EXTRACT.]

Department of State, Washington, January 29, 1842. By the "Britannia," arrived at Boston, I have received your despatch of the 28th of December (No. 4), and your other de

Vol. V. p. 78.

spatch of the 31st of the same month (No. 5), with a postscript of the 3d of January.

The necessity of returning an early answer to these communications (as the "Britannia" is expected to leave Boston on the 1st of February) obliges me to postpone a reply to those parts of them which are not of considerable and immediate importance.

The President has read Lord Aberdeen's note to you of the 20th of December, in reply to Mr. Stevenson's note to Lord Palmerston of the 21st of October, and thinks you were quite right in acknowledging the dispassionate tone of that paper. It is only by the exercise of calm reason, that truth can be arrived at in questions of a complicated nature; and between states, each of which understands and respects the intelligence and the power of the other, there ought to be no unwillingness to follow its guidance. At the present day, no state is so high as that the principles of its intercourse with other nations are above question, or its conduct above scrutiny. On the contrary, the whole civilized world, now vastly better informed on such subjects than in former ages, and alive and sensible to the principles adopted, and the purposes avowed, by the leading states, necessarily constitutes a tribunal august in character and formidable in its decisions. And it is before this tribunal, and upon the rules of natural justice, moral propriety, the usages of modern times, and the prescriptions of public law, that governments, which respect themselves and respect their neighbors, must be prepared to discuss with candor and with dignity any topics which may have caused differences to spring up between them.

Your despatch of the 31st of December announces the impor tant intelligence of an intention of despatching a special minister from England to the United States, with full powers to settle every matter in dispute between the two governments; and the President directs me to say, that he regards this proceeding as originating in an entirely amicable spirit, and that it will be met, on his part, with perfectly corresponding sentiments. The high character of Lord Ashburton is well known to this government; and it is not doubted that he will enter on the duties assigned to him, not only with the advantages

of much knowledge and experience in public affairs, but with a true desire to signalize his mission by assisting to place the peace of the two countries on a permanent basis. He will be received with the respect due to his own character, the character of the government which sends him, and the high importance to both countries of the subjects intrusted to his negotiation.

The President approves your conduct in not pursuing in England the discussion of questions which are now to become the subjects of negotiation here.

DANIEL WEBSTER.

Lord Ashburton arrived in Washington on the 4th of April, 1842; and shortly after, Mr. Webster addressed the following letter to the Gov. ernor of the State of Maine:

Mr. Webster to Governor Fairfield.

Department of State, Washington, April 11, 1842. Your Excellency is aware that, previous to March, 1841, a negotiation had been going on for some time between the Secretary of State of the United States, under the direction of the President, and the British minister accredited to this government, having for its object the creation of a joint commission for settling the controversy respecting the northeastern boundary of the United States, with a provision for an ultimate reference to arbitrators, to be appointed by some one of the sovereigns of Europe, in case an arbitration should become necessary. On the leading features of a convention for this purpose the two governments had become agreed; but on several matters of detail the parties differed, and appear to have been interchanging their respective views and opinions, projects and counter-projects, without coming to any final arrangement, down to August, 1840. Various causes, not now necessary to be explained, arrested the progress of the negotiation at that time, and no considerable advance has since been made in it.

It seems to have been understood on both sides, that, one arbitration having failed, it was the duty of the two parties to proceed to institute another, according to the spirit of the treaty of Ghent and other treaties; and the President has felt

it to be his duty, unless some new course should be proposed, to cause the negotiation to be resumed, and pressed to its conclusion. But I have now to inform your Excellency that Lord Ashburton, a minister plenipotentiary and special, has arrived at the seat of the government of the United States, charged with full powers from his sovereign to negotiate and settle the different matters in discussion between the two governments. I have further to state to you, that he has officially announced to this department, that, in regard to the boundary question, he has authority to treat for a conventional line, or line by agreement, on such terms and conditions, and with such mutual considerations and equivalents, as may be thought just and equitable, and that he is ready to enter upon a negotiation for such conventional line so soon as this government shall say it is authorized and ready, on its part, to commence such negotiation.

Under these circumstances, the President has felt it to be his duty to call the serious attention of the governments of Maine and Massachusetts to the subject, and to submit to those governments the propriety of their coöperation, to a certain extent, and in a certain form, in an endeavor to terminate a controversy already of so long duration, and which seems very likely to be still considerably further protracted before the desired end of a final adjustment shall be attained, unless a shorter course of arriving at that end be adopted than such as has heretofore been pursued, and as the two governments are still pursuing.

Yet, without the concurrence of the two States whose rights are more immediately concerned, both having an interest in the soil, and one of them in the jurisdiction and government, the duty of this government will be to adopt no new course, but, in compliance with treaty stipulations, and in furtherance of what has already been done, to hasten the pending negotiations as fast as possible, in the course hitherto adopted.

But the President thinks it a highly desirable object to prevent the delays necessarily incident to any settlement of the question by these means. Such delays are great and unavoidable. It has been found that an exploration and examination of the several lines constitute a work of three years. The existing commission for making such exploration, under the au