murder. His particular right under those circumstances, to be defended by a counsellor who holds the office of district-attorney of the United States, may, if you deem it material, be admitted to have been involved. Yet your position on that subject thus most liberally stated, and excluding the peculiar circumstances relied upon on my part, is very different from the proposition you have through misapprehension now stated, and to which you have affixed my dissent. It contains no question concerning the right of that accused person to a fair and impartial trial, and no denial of his right to be confronted with his accusers. In regard to his right to a fair and impartial trial, I beg leave to recall to your recollection, that in my first communication to the government of the United States in relation to his case, it was expressly stated that a just regard for the honor of this state, as well as a due consideration of the importance of the case to the accused, and the possible influence of the result of the proceeding upon the relations existing between this country and Great Britain had seemed to me to require that he should have a fair and impartial trial; and it was announced that, to secure that important object, the chief-justice of the supreme court, who is the highest judicial officer in the state authorized to try criminal cases, and who does not usually preside on such occasions had been required to hold the court, and that no objection would be raised to the removal of the scene of trial beyond the reach of excitement and of every prejudicial influence. The same determination to afford the accused person a fair and impartial trial has been repeatedly avowed, and nothing inconsistent with it will be found in any of my communications.

Again, so far from the prisoner's right to be confronted with his accusers having been challenged, it has been considered a grievance that, while a menace from Great Britain is impending over the government of the United States, a person holding the office of district attorney under the latter government is engaged in an effort to procure the discharge of the prisoner, without his being confronted with his accusers. What has been objected to was that the district attorney of the United States was acting in conflict (as was assumed) with the authorities of New York in a proceeding deeply interesting to the state, and sanctioned by the president of the United States. The prisoner's right, under all the peculiar circumstances of the case, to be defended by the

district attorney of the United States because that officer was a counsellor in the courts of this state, has been denied, and this, it is respectfully submitted, is the extent to which I can justly be said to have dissented from the humane and enlightened proposition you have now laid down, and to which as a general rule, with some necessary modifications, I am happy in being able to declare my free assent.

What has been denied, if my position be stated in the form you have preferred to adopt, is the absoluteness of the right of an accused person to be defended by counsel of his own retaining. If the right be absolute, the accused may disarm public justice by retaining the witness, the prosecuting attorney, or even the judge. You have admitted, however, that the rule is not universal; while you maintain that the present case is not to be received among admitted exceptions. The converse has been held on my part, and this is precisely the point at issue. The proposition being thus accurately presented, and my dissent properly understood, I cheerfully concur in waiving further argument on that question.

The correction thus made renders it almost unnecessary for me to advert to the misapprehension with which your communication opens. I am there represented as having requested you to deprive a man, on trial for his life, of his retained counsel, merely because that counsel holds a commission from the government, the nature and character of which in no way conflict with the engagement he has entered into with the person under trial. Certainly no one reading this statement would suppose that a question had been raised at any time, whether, when the circumstances of the case, and the nature and character of the office of district attorney were considered, there was not in fact a conflict between his official duties and character, and his engagement as counsel for the accused. And yet that question has been among the chief points in controversy throughout the whole discussion.

Again, the form you have adopted in presenting the suggestion I had the honor to make, seems to me not altogether liberal. That suggestion was, that the district attorney of the United States was acting in the proceeding in question, in a manner which indicated an apparent conflict between the authorities of the United States and those of this state. The previous retainer of that functionary by the accused was set up, on your part, as

a reason why he ought not to be required to desist from the defence. Even though this might be admitted to be a sufficient reason for declining to deprive the prisoner of his retained counsel, it would by no means follow that there was no other mode of avoiding the conflict deprecated. If it be so certainly wrong to deprive an accused person, on trial for his life, of his retained counsel, because that counsel happens to be the district attorney of the United States, I trust I may nevertheless be permitted now to express my regret that, if that relation of the counsel was known at the time of his appointment, it was not thought important, in view of the peculiar circumstances of the case, to inquire whether it was indispensably necessary to assign the duties of district attorney to a person lying under such an engagement.

It seems to be regarded by you as a light consideration that an officer holding a commission from the United States may be paid by the government of Great Britain for challenging the jurisdiction of the courts of this state in a cause instituted for the purpose of vindicating the lives and property of its citizens, with the sanction of the president; and when a war between Great Britain and the United States is supposed to depend upon the exercise of the jurisdiction thus challenged. I can only excuse the error which I have committed in dwelling upon a circumstance which you regard as so unimportant, by pleading the prejudice supposed to be sustained by the history of our own as well as of other countries, and even by higher authority, which inculcates the danger of intrusting a cause to one who lies under obligations to an adversary.

You are pleased to observe that misapprehending the tenor of your communication, and detaching a sentence from its connection, I had made an occasion to ascribe to you an indifference to the rights of the state of New York which nothing that has occurred can justify. I acknowledge most gratefully the kindness of the succeeding remark, that upon further reflection, and with more extended information, I would have been among the last to have done you such injustice.

I owe it to myself to state, that when writing the communication referred to, it did not occur to me that the effect of the sentence to which you have alluded was qualified by the context. I will not recur to the correspondence which has passed, either to

inquire whether it was not my duty to act upon such information as I possessed, or to ascertain whether the error into which it appears I have fallen might not be defended or excused, but will freely admit that injustice was done in supposing you to have felt any less interest in the rights of the state of New York, than that which you have now carefully defined. As this is a subject, however, of deep interest not only on account of its bearing upon the matter out of which this correspondence has arisen, but also because it involves the mutual rights and obligations of this state, and the government of the United States, I shall deem it my duty to state the positions of both parties accurately, and shall then be content to leave them without discussion.

Your positions are stated by you as follows: "The attack on the Caroline, when viewed as an act of public force, committed by the British government within the territory of the United States, is undoubtedly a matter in which the government of the United States is bound to take an interest, and to which, I trust, neither my predecessor nor myself have shown any degree of inattention. But when it is viewed as divested of its character as a public transaction, and when those concerned in it are regarded merely as individuals committing crimes against the laws of New York, then certainly the case requires nothing to be done by this government as auxiliary to the power of that state. Nor can this government have more to do with that trial than with a trial for any other offence against the laws of the state, unless, indeed, it find itself called upon, for the protection of some interest of the United States, or by its high duty of preserving the peace of the country, and of superintending its foreign relations, to take care, by the exercise of its acknowledged powers, that such interest be guarded, or that no just ground of complaint be furnished to other nations. It was in this sense, and in this only, that I spoke of M'Leod's trial as one in which the government of the United States had no interest, and I repeat my regret that your excellency should have thought there was ground for ascribing to me any other meaning." Again, you declare that you concur with me in opinion, that "the destruction of the Caroline is a question in which every state of this Union is interested equally." You observe, also, that "the interests of New York are merged in those of the United States;" that "the question is no longer local, but national." And you

add: "While I shall at all times be pleased to receive suggestions from your excellency in regard to it, and shall give to them all the consideration to which they are entitled, as emanating from the chief-magistrate of an independent state, yet I shall be equally prepared to receive, and maturely to consider, similar suggestions from the governor of any other state."

These are the views of the government of the United States, concerning its interest in the subject of the attack upon the Caroline. On my part, I declare most cheerfully my concurrence with them, so far as they relate to the attack upon the Caroline, viewed as an act of public force committed by the British government within the territory of the United States, and directly cognisable by the government of the United States, and a national question. I will take leave also to say, that I should be especially grieved if my communications had anywhere manifested the disposition, indirectly, and I must be allowed to say, prematurely censured, to obtrude advice in regard to this branch of the subject, or to claim any especial attention from you beyond what might be due to the executive of any other state, or even any other citizen of any one of the United States.

In regard to the same subject viewed in the aspect presented by the prosecution by this state against Alexander M'Leod, as a participator in the attack upon the Caroline, and the murder of a citizen of this state, the following positions are held on my part. The offenders in the transaction referred to, if they had been arrested at the time, might unquestionably have been brought to justice by the judicial authorities of this state, and the prisoner's subsequent voluntary entrance within that territory places him in the same situation. There is no principle of international law, or of reason or justice, which entitles such offenders to impunity before the legal tribunals, when coming voluntarily within their independent and undoubted jurisdiction, because they acted in obedience to their superior authorities, or because their acts have become the subject of diplomatic discussion between the two governments. The avowal or justification of the outrage by the British authorities, so far from in any way entitling the offender or his government to a discontinuance of the prosecution commenced by this state, might itself be an additional ground of complaint. The application of the government of the Union to that of Great Britain, for the redress of an