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BT JUDGE TALLMADGE, OF THE SUPERIOR COURT OF THE CITY OF NEW-YORK. NEW. YORK: PUBLISHBD BY N. T. ELDRBDGE. 1841. ■ ' '1.1 !<■ •I ' '-J ■ I I- -•; K. ,^ •1 I i Z, A. CLAYTON, PRINTEB, /fo. 9 Thamcistrcct, ii -.1.1 a t TO THE HON. DANIEL WEBSTER, SECRETARY OF STATE OF THE UNITED STATES The following Review of the Opinion of Judge Cowen, of the Supreme Court of the Slate of New-York, in the case of Alexander McLeod, is respectfully inscribed, by A CITIZEN OF NEW-YORK. . ii F^ ; f %', : . V 11 ..«. n • ♦.' I PnUMSIlKirS IMM'IKACK. The follovvitit^ KcvifiW w;i,s originally publislicd under llu; anonymous (Icsignatioii of " A ('ilizcu of INcw-Vork." — 'J'liu principles of law i\ivav. laid down, and iIk; dislin^niislicd abilily willi which they were maintained, cxciled the attenlion atid called forth the nncpialilicd approbation ol" the most eminent Statesmen and Jurists in the country. A new edition being rc(juire(l, the author has ma.de the necessary corrections, lur- nislicd some additional auliiorilics, and given p(;rmission to prelix his name;. VVc are also allowed to add the huters of CuANCKLLOu Kknt aud (JiiiKK Jiis TUK Si'JCNCKK, cacli afllrin- ing and sustaining to the fullest extent, every position taken by the llevicwcr. The authority which iIkj names of those distinguished jurists carry with them, and the well reasoned matter of the Keview, cannot fail to satisfy every unj)rejudiced mind, that the Su[)remc Court ol'the State of j\'ew-Vork egro- giously erred in decdaring tlic principles of national law in the case of Alcrandcr McJ^cod. To McLcod, individually, the decisi'f of the Supreme Court is no longer of any inn)ortancc. Hut s far as it may b])eratc as a precedent, or be cited as autliority, hereafter, in cases involving questions of peace or war with foreign powers, it is of vital importance. McLcod having been accjuitted, there was no opportunity to review the decision of the Supr(;me Court before a higher tribunal. If there had been, we have no doubt such tribunal would have come to the same conclu- sions to which the Reviewer has arrived. And we venture to predict that, whenever such <]uestions shall again arise, this Review will be referred to, as containing the true principles on which the decision of them must rest. f > \ ill ji' iir Ii' m i!. / :lj I I ii.MMKMiAlnHV l.i;!! KKS I MuM i II \N( ll.l.oil M.IN I ANI> (1111,1 .M'SIHI, SI'I.M I |( NUW ■ Vnllll, Ni>i ciilh, t li/A, I II It l)(.kll .Sill, I lllllllk V"" l">IV«»l|l lf(\ HW iiT llir (i|Mliinii «»r.)u(l;j[ti (-'uWION ill (lid < limi ul Ml l.riiil. Il in vny iihly nxmilrd. ||. i.s clnif, lurri'ir, iiciil, iirciiruh', (111(1 niliirly ((HicliiMivd ii|m»ii fvciy |i(iiiil. I Iiiiv(! i«wiil il uiih L(l('llt Miiti'ilJii'liiiii, iilid I mIkhiM Iiiivi! Iici'Ii |)|(ii|(I il' I Ii;ii| \u(i\ llid aiilliiii oi il. \'(ii|l I, very K; i|ic(irii||y, HON. nANiin, II. I'Ai.i.M Aitdi'; JAMKM IsKNI ' ' f - i ' -'' \ \ ' t , I m 1 I.ViiNi, Siiftmlni !"//(, lull Mv |)l' All .Sill, V'diii Idler, nrc(»iii|);iiii(;(| liy ;i Ifcvicw (»| Mr. .Iii'ilicc ( !(»wi.;n',m o|tiiii(iii m llic Mrl.md nisv, Tkhii llie; pi-ii ol .lii(l;^c Tallmaimii.:, luis Imcm itccivcd, .-iiid I lliiink y,,ii liti lliclii. I liiivc rcid llir Kcvicw with ;>rc;i| H;ilisl;i(lioii,;iiid cmi .sidcr il ;i iiiii,s|(;ily and iiiiMiiHVvci.ilth; (irodiiciioii. Il, n'\\\\r;( nii /////y^.s rorims, ;ii(; iiill :iiid |((ili'r(. || |)i(»l);il)ly did iml occm iK.lndct; TallmaikjI': I(» (ixuiiiinc om Si.ilnlcdl /A//;m.v (\nfiit.n, XJ //. ,S'. ACM. Tlic icvi.scd ;i((. KJiis lo the l.iw.'i of |s|s, vvliicli con t;iiii ;iii (•iiiiclniciil (li;i\vii l)y inc. I'tioi lo llii* Sliiliilc i|, w.i.t iiiMllcrorLMciit .IoiiIm. wIiciIici a .Uuluv, ;j| ( lliambcr.s, uv t.Vi:u tli(; Couil ilscir, lotild, al'icr (lie rcliirn made, cxariiiiKr info the M I ri! 8 fiirfs (ili until', ill contnidicliou nr rxplanfUion ofilic return totlie \viif. 'I'liat :ic| .'111(1 iIh; revised l;i\v ^'ive ex[)ress power to iiiiiUc! such cxjimiiiMliiMi ; mid llio lorly-oi^dilli s(;etinii aiitliori- z«.'.s, iti express leriii.s, the .Judge, idler liriiriiig llic "allegations juid proofs to dispose olsneli parly as llic justict; of the case may rr(iulre." Tlio l()rlietii section of the act spc(;ilicnlly directs wlicn the party sliall be rcmomkiU and liune are only thr(!C eases. It follows inevitably, that in every other ease, the Judge, or Cyurt, has plenary powers, if he or they sec fit to discharge ort bail. The three; cases arc. First, a detention on process issued by a. Court or .Judge of the Uniteil Stales, where such court or Judge has exclusive jurisdiction. Second, detention on a judgnicnt ort decree of any competent Court of civil or criminal jurisdiction, or on an execution issued thereon. Third, for contempt, kc. Now the speciricaiion of the rn«jo iti whicli tl;.c party suing owi -A hdlmis corpus shall bo remanded, and giving full jurisdic- tion lo deside till other cases, and to remand or bail, proves that the fact of an indictment found, even for murder, raises no objection to a discharge or bailing. With high esteem and regard. Yours truly, A. SrENCEK >'!' •! REVIKW, &ic. The importance of the (juestioiis involved in the opinion de- livered by Judge Cowen, of the Supreme (Jourt of the iStale of New-York, in the case of Alexander McLrml, nnd the erro- neous principles of n;ilional law put forth in that opinion, s(!cm to require that the true doctrines involved in the ciisc should he placed in a correct !iu[ht l)('l()r(' the country. To thiit cud, we have ventured to emhody the result of our exaininntion of the subject in the l()llowiiig review of Judge Cowen's oj)inion. I^he o|)inion is delicicnt in rncihodic;d arrangenuMit of the sevv'ral positions taken and maintained by the .ludgc ; ;ind this confusion is increased by a b;i(lly arranged citation of author- ities, and a rambling mode of discussing the subjects. It is also much too long ; being nearly double tlu: length re(]uircd to dis- cuss the matters rmllij in issue, even in Juilge Cowicn'h mode of discussing them. Why, for exam[)le, go through witii an examination of tiio (jucslion whether our courts have; jurisdic- tion, and a right to try a.Jutrlirnf;r for ;i crime commit tJ^l within our State, and (juole the authorities bearing upon the subject to prove the jurisdiction, when not a person, lawyer or layman, ever doubted it! and when the Judge liimself finally says, "want of jurisdiction has not been put on the ground that McLcod was a foreigner." The other branch of the question of jurisdiction, discussed at great length by the Judge, seems to us an equal waste of labour and learning. As we understand it, the case oi' McLeod does not involve any question of jurisdiction : for it must be conceded that our state courts have jurisdiction over all cases of murder committed within the bound ry of the State. McLeod^s case presents for consideration — not a question of jurisdiction, but a question of guilt or innocence ; whether the homicide 2 , r 1 ' 1 ' i 1' l 'f'\ ■itfl ill 10 V^' t. with wliicli lie is i-liiirged be a riime acrorcling to the law of" iiiilidiis. It'll sheriir should, in piirsunnco ol" ;i ponloncc, hiuig a poi- son convirtcd of iiiin-(hritish sol- dier had come within our State, and had been arrested and in- dicted ibr murder committed in the attack on Jiullido during the war; he would not think ot" raising a (piestion of jurisdic- tion in the court, but would r<'ly on the law of nations to justify the homicitle, and reliev(> him from the charge ot" crime. Indeed, whenever a (juestion of the jurisdiction of a court is raised, it necessarily admits the charge or claim preferred. The plea to the jurisilictiou is one of confession and avoid.ance ; surely the counsel of McLrtni never intended to admit, tin" a moment, the crime of munhu', with which he was charged, and seek to escape its conse(|uences by alleging that the court had not jurisdic-tion over the otlence! In this part of the opinion, therett)re, we think the Judge must have been fighting a sha- dow of his own casting. There is, also, ;mother [)rnt of this opinion, and no inconsi- derable part ol" it, that appears to be a, waste of learning and authorities. It is that [);irt in which the Judge proves, beyond question, "thiit every voluntary entrance into neutral territory, 11 dic- ifily me. It is icd. nco ; )r a and Kid tvlth hostile purposes, is ahsolulely uiiliiAvfnI ;" yet, aller nn elaborate disciission of this (|ii(!Stion, a ciliitioii o("aiithorili<\s at great length to prove xho vntaujiibicss of the violation of our territory by England, the Judge says, "that the aet was one of mere arbitrary usurpalion; tvax iiul dnurd on the ar'^iimcnt ; nor hits (his, I hat 1 am mvarc of, been denied hij omj one cxapt Knij;- land hcr.sclf.''^ We concede that \\\v, aiuhorities ciled .^how that the hostile attack upon the Caroline, and the violation of our territcny, was unlawful; that is, without adecjuate (;ause; but not one of all the authorities which pronounce a violation of territory unlaw- ful, denounce upon iIk; military of the nulion, under whose authority it is done, any personnl penalty. If we examine history, we shnll find that (juite as many wars have hcvn commenc;ed without, as with ade(]uat(! cause, when tested by the general reason and sense of mankind; yet no one ever thought of making that the test of the impunity belonging to the military engaged. Such a test can only be applied to controversies between individuals, where there is a common arbiter or judge to (liH'ide; never l)elween nations, who admit no judge but themselves. 'V\\v. argument, there- fore, on the side oi' McLcod, is not at all weakened by not de- nying that the attack was unjustifiable on the part of his nation. In the examination of this subject, we shall concede what has never betai denied, and what has taken so much of this learned opinion to prove, to wit : tiiat a foreigner is liable to be tried by our courts for crimes committed within the State; that the state courts have jurisdiction in all cases of murder commit- ted within the State; and, lltrthe sake of the argument, that the hostile expedition, in which the Caioline was burned, and Durfee killed, was an unlawful violation of our territory. We proceed, then, to the discussion of the main (piestion involved in this case, to wit: whether McLcod is entitled to the impunit}^ of a soldier in time of war. The points sought to be established by the affidavit of McLcod, are thus concisely staled by J udge Cowen : !i ifr.i l\ t: ir> 'SI 12 Tlint. llic Niii^iim iVoiilior wiis in m stnleorwnrM^'ninst tlir conti^iMtiis ]»n)viii('(^ of I '|»|t(M" ( ';iii!i(l;i ; lli.-il llic lioiiiicidc wms Odiiiinillcd i>y McLmd, il ill .ill, iin uiii- ()|';i iiiilil;il y cNliciillidii, nrl on loot hy ilic ('.-iiiiuliiiii iintliorilirs lo dcslroy llic lio.il Cii- loliiic ; lliMl lie \v;is ;i, lliilisli siiiijcci ; lli.il llic cx|ic(lili()M iTosscd our l)ouiid:nv, soiinlil tin; (';ii'n|iiic jit licr iiiooi iii;;>i in Sclilnsscr, iiiid llicic scl, lilt' lo ;iiid Imiiii'd licr, and kil!cd Diiilcc, (Jiic oliiiir citi/ciis, ;is il is luwCiil lodo in lime ofwar." From siicli M, sliilc oi" I'licis .liidij;(! C)()\vi:n iJikcs liis posiiioii in t'cliition lo llic ri^lil.^ nnd liiihililics oC iMi^hnul nnd lior riiil- ilury, as l()llo\vs: '*[ deny lliiil she c:m, in lime of |)e;iee, send licr men irilo our Iciritory, imd rende?- ihem impeivioiis looiir Iiiwh, Uy cin- hodvin^ lliem mid pntliii^ ;iiiiis in llieir liiinds. Slie niiiy di'- cliire Wiir; if ahv cluim titr hcinjit af priuw, as holli mifioiis lidi'v done in this iiis/(iti<(\ the iiioiiinif anij (if lur citiznis nilvr our ft rri- tori/y (/irij tire as coinplrldii ohiio.rioiis to punishmrnt, loj our loir, os if t/in/ Itdil firm bom oiiil (i/inii/s rc.sulnl in f/iis coinifri/. " I w ill nol, tliercli)re, dis|)iite llic conslniclion wliieh coun- sel |)iil upon llic l;ingii;i<;e or llie iicls oi' l'',n_L!;l;in(l. TotesUlic law ol'ilu* Iriinsiiciioii, I will concede llial. slic had, hy aei ot I'arliament, conreinvl all ihc power which can be (;oii!ended for in hchairollln.! C'anadian aulhoriliey, as Car as she could do so." 'This, we confess, is mcclini^ !hiM|n(\stioii holdly; and we accept, for ihe sake of llic nrmimcnt, and liir llii- pre.scnl, the coneession of die siinieiciKry of ihc power conliirrcc! on the C'a- nadian aiilhorilies. IW-liiic \vc leave iIk^ subject, howt'ver; we will dispense with this concession, and establish the sniliciency of this power, by lh(> most clenr and conclusive^ authorilies. Upon the (|ncsiion as before^ slated by Judge Cowi'.N, he applies lo it the law of nations, as i()llows: "To warrant the dcstrncrion of property, or the lakini> of life, on the unMind of public war, if must bi* what, is called htuj'ul H-ar by the law of nations; a lliin<;- which can nevcrcNist wiih- t)Ut the (ic/iio/ cn/ifiirrciiff of llir iror-niii/iiiiir power. This, on the |>arl of the I'niled Slates, is I'omrrcss: on the part; of Kn- gland, the (^loai. A statc^ of peace and the conlinuance of Irealics nuist be presumed by all courts of justice till the con- trarv be shown ; and this \h( IS IS II 2>f'('iii(i>i2)( 10 juris ct dc jure, unlil 13 we the Ca- \ve Micy lie life, iiij'ul 'illi- Oll Kii- •e of coii- iiutil tlio niilioniil power oI'iIk; coiinlry in wliich such coiiils sit, olli- ciiilly (If'i'liMcs the conirjiry." Now ilio ciiliif CI Tor ill tlic opiiiinn olilic .lii(lji^(! .'irises iVoiri tlie eiToiieoiiH piinciplc ul" iiilci iiiilioiiiil law w lii"li lie liei(^ liiy.s down. All will Jif^ree thai llie war which alKirds iiii|niiiily to lliosc; reac|i other's Meets, whilst, llir 7i(i/i(ins in oilier rcxjKrls ore ainst us, tlier(< eaunot. hc^a, staU; of war that will warrant tlu; (h'strncliou ol" property, or tlu; taking; olliif! incon- ili(jt, on either side. To controvert this j)ro])ositioii, we hriiig not only l{iitli(!rl()rlli, as ahove (uted, l)Ut Valtel, in language if possihl(! still inon; explicit. — Ii. Hi, c. ^, see. 07. •' A war lawful and in form, is carefully to he distinguished from an unlawful warenteicdon wilhoul any l()rm, or ralhrr from f/iosr iiiciirsioiis irlncli arc roiiDiiitlrd lillirr irillioiil hnrfiil iiu- thori'ij or (ri)]iornif nri/sr, as lihiirisr irillioiil fornuiHlics, (nid, ovltj for liariH: iiiiil i)ill(ii!;r. (Irotius, h. iii, chap. ^5, I'clalcs several insianc's of the latter. Such were the wars of the (Irtr/ii/rs Conipoiriiirs, wliich had asscmhied in France during the wars with the iMiglish; armies ol" handitti whicii ranged uhout Eu- rope purely ibr siioil and plumkr. {Sucli were the cruises of * 'i ' :l Im I'd • ii^ l|i i ■ 14 Filbustlcrs, wiiliout commission and in time ofpeace ; and such in general are the depredations of pirates. To the same class belong almost all the expeditions of the African coroairs, though authorized by a sovereign, they being founded on no Of parent just cause, ajid whose only motive is the avidity of captures. I say these two sorts of wars, laufulam] unlaivful, are to be care- fully distinguished ; their effects and the rights arising from them being very different." Here \vc have Vattel, distinguishing all the hostile collisions of nations into " tivo sorts of wars ;^^ the one sort being underta- ken " without apparent caiise,''^ and for " havoc and pillage,^^ and all that do not come under this head being of the other sort. Having thus divided wars into •' two sorts," the one he calls unlawful war, the other lawful war. Vattel does not, lUce Judge Cowen, call all wars unlawful that are not formally and solcjnnly declared by the " war-making power" of a Government, but he pronounces all hostile attacks lawful wars, if made with lawful authority, and for ^'■apparent cause,'''' and not for ^^ pillage and havoc.'''' Chancellor Kent, too, admits that a formal declaration of was is not essential to make the war lawful. All that is requi- red to make a lawful war is, that the hostilities be authorized by the proper authorities. — 1 KeiiCs Com. 54. " Since the time of Brinkershoock, it has become settled, by the practice of Europe, that war may lawfully exist by decla- ration which is unilateral only, or loithout a declaration on either side. It may begin with mutual hostilities. In the war between England and France, in 1778, the first public act on the part of England was recalling its INIinister; and that single act was considered by France as a breach of the peace between the two countries. There was no other declaration of war, though each Government afterwards published a manifesto, in vindi- cation of its claims and conduct. The same thing may be said of the war which broke out in 1793, and again in 1803, and indeed in the war of 1756. Though a solemn and formal de- claration of war, in the ancient style, was made in June, 1756, various hostilities had been carried on for a year preceding.''^ In the same explicit manner Rutherforth speaks, denying the necessity of a declaration of war to make the war lawful : 15 igh the I- " The only real cfTect of a declaration of war i^^, that it makes the war a general one, or a war of one whole nation against another wiiole nation ; whilst the imperfect sorts of war, such as reprisals, or acts ontosfilif)/, are confined to ])anicular persons, or things, or p/accs." — Path. B. ii, c. 9, sec. S. These questions do not depend entirely upon the opinions of elementary writers upon national law. They have been illus- trated by judicial decisions, in courts of the highest authority. 15 East, 225. This was an action to recover back the prennium paid on a marine policy of insurance; and the ques- tion was whether a state of war existed at the time the insu- rance was eflected so as to render the policy void. Hostilities had been commenced by Russia against England the day be- fore the insurance was eflccted, but was not known to either party at the time. For the defendants it was insisted that " no- thing which was done in Russia, even if it had been known here, would have bound British subjects, until the state of war was known and recognised by this government." Lord Ellcnborough. " The commencement of hostilities by Rus- sia against this country, placed the two countries in a state of hostility, and made the subjects of Russia enemies to this coun- try at the time when this insurance was eflected. Formal dc- claratio7is of war only make ihe state of war more notorious; but, though more convenient in that respect are not necessary to constitute such a state.''^ 1 Dodson^s Admiralty Reports, 247. A declaration of war was issued by Sweden against Great Britain, on account of the encroachments of the latter upon her rights as a neutral nation. It was contended before Sir WiUiam Scott, that the two coun- tries were not, in reality, in a state of war, because the decla- tion was unilateral only. " I am, however, perfectly clear," says Sir William Scott, "that it was not less a war on that account ; for war may exist without a declaration on either side. It is so laid down by the best writers on the law of na- tions. A declaration of war by one country only, is not, as has been represented, a mere challenge, to be accepted or refused at pleasure by the other. It proves the existence of actual hostilities, on one side at least, and puts the other party also into a state of war ; though he may, perhaps, think proper to act on the defensive only." Thus, it will be perceived, a lawful war may be commenced without any formal declaration, and it may be manifested by !1 .| m m ?i li'i:;! ■ 16 an act of hostility, without any previous notice ; nnd whether the war becomes a general one or an imperfect war, depends upon the extent to wliicli hostilities are curried. It will al- ways be II la ijf III war, if the hostilities are authorized by the jiroper authority, and are not mere wanton depredations, with- out any a[)parcnt cause. Are the militari/, llie general ofliccrs and soldiers whoengnge in such hostile attacks to be held personally answerable in the ordinnry courts of law, as for a private otlencc .'' The same principle ol' imp imlfy ai)])lies to hostilities upon the land or sea. When they are wo,nton and malicious, and ^ov plun- der and spoils, at sea, they arc called inracy. Hostilities by land, from similar motives and for like objects, are called rob- beries. Decisions, therefore, in relation to hostilities at sea, and the impunity or liability of vessels and crews, furnish the rule of impunity or liability to be applied to the military, in cases of hostilities upon land. 11 Whcoton, 41, Story says : " A piratical aggression by an armed vessel sailing under the regular flag of any nation, may be justly subjected to the penalty of confiscation for such a gross breach of tiie law of nations. But every hostile attack in a time of peace, is not necessarily piratical. It may be by mistake, or in necessary selt-defence, or to repel a supposed medi- tated attack hy pirates — it may be justifiable, and then no blame attaches to the act; or, it may be without just cxcme, and then it carries responsibHity in damages. If it {)roceed further ; if it be an attack from rceengc and malignity, from gross abuse of power and settled purpose of mischief, it then assumes the character of a private unauthorized war, and may be punished by all the pen- alties which the law of nations can properly administer." The same principle is recognised in 1 Kenfs Com. 188 : "An alien, under the sanction of a national commission, cannot commit piracy ■while he pursues his authority. His acts may be hostile, and his nation responsible for them. They may amount to a lawful cause of war, but they arc never to be regarded as pi- racy.^^ How perfectly does this principle cover the case in question. The attack upon the Caroline was hostile and unlawful, and the British nation must be held responsible for it. It amounts 17 Pi'it, !f' t" < .,1.' 4- to a lawful cause of war ; but. those rrigaged in it, acting under lawful authority, can never be rc^ru.dvxl as robbers or jjiunderers, or liable to be punished critTiinally. This principle has been fully recognised in a judicial deci- sion in the English admiralty. We have not the case at hand as reported, and therefore avail ourselves of it as extracted by Chancellor Kent. — 1 Kcnt^s Com. 190 : " In the English admiralty, in 1801, it was contended that the capture and sale of an English ship, by Algcrines, was an invalid and unlawful conversion of the property, on the ground of he.'mg a piratical seizure. It was, however, decided, that the African States had long acquired the character of esta- blished Governments, and that though their notions of justice differ from those entertained by the christian powers, their public acts could not be called in question; and a derivative title, founded on an Algcrine capture, and matured by a confis- cation, in their way, was good against the original owner." — Citing 7Vic Helena, 4 Rob. 3. Shall it be said that an English court has held an Algerino capture lawful, because made under the sanction and authority of that Government; and a title thus acquired valid against the original English owner of the captured vessel ; and yet the Supreme Court of New- York decide that a hostile attack upon us, made (not without apparent cause) under the sanction of the British Government, shall not protect the militar}' engaged in it from the punishment duo to cold-blooded murder ! We regret to say it has been so said and decided. The decisions of the courts of England and the United States^ ia regard to the impunity of vessels and crews when acting under the authority of their Governments, are decisions merely carrying out principles long since laid down by the most approved elementary writers upon national law, and giving to those principles the authority of solemn adjudications by the highest judicial tribunals of the world. These elementary writers, when speaking of war generally, and more particularly in reference to hostilities upon land, hold that whenever the hostile attack is made under the authority of Government, it becomes an affair between the two nations, and no individual responsibility rests upon the actors. m m I i^a r i 1 f ' I ' '■ I 18 hit h Thus, Viittel, speaking of wnr that is vnjust on the part of the sovereign who wjiged it, but luwliil, because not without apparent cause, and not tor havoc and pillage, says : " But as to the reparation of any damage — are the military, the general oflicers and soldiers, obliged, in conseciucnee, to repair the injuries they have done, not of their own wili, but as i/is(riiincnls in the hands oftheir s')vercign !" " It is the du- ty of subjects to su|)pos(!the orders oi" their sovereign just and wise." Hcc. " WJKMi, ihcreibre, they have lent their assistance in a war whieli is afterwards (bund to be unjust, the sovereign alone is guiltij. lie ahmc is bound to repair the injuries. Tlie subjects, and in particular the militanj, are innocent; they have acted oidy from u nrccmnij obedience." " (iovernnient would be inij)ractical)le, if every one of its instrnmcnta were to weigh its connnands," »Src. — fatfcl, b. Hi, c. 11, sec. 1S7. "INolhingofall this takes place in a war void oi' fonn and unhiuful, more 2>rojirrlij called robbery, being nndertalen leidiout right — xoithout so much as apparent cause. It can be productive of no lawful edect, nor give any right to the author of it. A nation attacked by such sort of enemies, is not under any obli- gation to observe towards them the rules of war in Ibrin. It may treat them as robbers.''"' — Vattcl, b. Hi, c. 4, sec. 68. Thus we have ^'' these two sorts of wars, laufiil and wilauyul,^'' carried through by Vattel to their consequences ; and all per- sons enffasied are entitled to have '* observed towards them the ndes of war,'' ^ except those engaged in " incursions committed without apparent cause, and only for havoc and pillage." The same position in regard to the immunity of soldiers is also maintained by Rutherforth : " The external lawfulness of wliat is done in a war, in respect to the members of a civil society, extends to public wars of the imperfect sort, to acts of reprisals, or to other acts of hos- tility,^'' ^'c. — B. ii, c. 9, sec. 15. And again he says : *' Neither the reason of the thing, nor the common practice of nations, will give them any other impwiity, or allow them any otherwise to obtain proiicrty in what is taken, where war has been declared, than in the less solemn kinds of war, which are made without a previous declaration," &c. " In the less solemn kinds lar di tions punisl consi( agent. 19 ictice any r has ;hare olemn kinds of war, wliat the members do who act under the particu- lar direction and autliority of their nation, is by the law of na- tions no ycrsonol crime in them ; they cannot, thon^fore, be punished consistently witli the law, for any act in which it considers them only as the instruments, and the nation as the agent." — Idem, h. ii, c. 9, sec. 18. We here leave this branch of the case, believing that our readers, from our citation of authorities, must be satisfied that, if the expedition in which McLcod is said to have been engaged, was executed under lawful authority, he was guilty of no per- sonal crime in the violation of our territory, the destruction of the boat, or the death of Durfce. We now proceed to show that the hostile attack took place under lawful authority. It should be borne in mind that Canada is separated from its mother country by an ocean of three thousand miles. That a revolution was attempted in Canada, and the disaffected of the colony had not only the sympathy of our peopk; generally, but were, to a great extent, countenanced and succoured by our citizens residing upon the borders. Under this stale of things, the British Government gave or- ders and authority to the chief oflicer in Canada for his instruc- tion and guidance in meeting the difficulties then presented and anticipated. Not being able to foresee what might take place, the autho- rity was made as general as the nature of the case would admit, and the exigencies seemed to require ; and was, no doubt, in- tended to vest in the chief officer in Canada power to do what- ever the home Government would have done under like cir- cumstances. He was, says the British Minister, " empowered to take any steps, and to do any acts, v/hich might be necessary for the defence of her Majesty's territory, and for the protec- tion of her Majesty's subjects." This is a power most general and extensive in its terms. The object is, "the protection of her Majesty's territory and subjects." To insure this end, the Canadian officer is autho- rized to do any act necessary for this protection ; and this ne- cessity must, in the nature of things, depend upon the ; h i Tj 20 judgment nnd discretion of that officer. The authority does not liiiiil the officer to any spcciliod measures, or corilino his acts to the Canadian territory. As England might, in dfCence of her Canadian subjects and territory, authorize a hostile at- tack upon theCarohnc, under such circumstances as presented themselves to the Canadian authorities, it would seem to Ibllow that the Canadian officers liad power, under their orders, to do the same thing. By saying that the sovereign of England might authorize such a hostile attack as was made on the Caroline, we do not intend to say it would bo an attack that could be juslilied to the world. We only intend to say that it would be so far jus- lifiable or excusable as to furnish impunity to the military acting under suclj an order. We think the construction we give to this power receives confnniation from IhirUmaque^ pt. 4, c. 3, sec. 14. Speaking of the power of magistrates or generals, this author soys: " They cannot lawfully undertake any act of hostility of ilieir own head, and without a formal order of the sovereign, at least reasonabhj 'presumed^ In cojiscqucnce of particular circumstances. But have we a right to scrutinize and limit an authority of this kind, whilst England sanctions the act done under it, and when the object and effect of such limitation is, to make murder of an act, which, under a liberal construction of the power, would render the accused innocentoflhe slightest crime. In a review of " Wheaton's Elements of International Law," we find the following apt illustration of the right of a nation to give its own construction to its own commissions : "If a state extended its protection to its lawless subjects, committing violence out of its local jurisdiction, there would be endless disputes \viih other slates, and probably a great delay of justice. On the other hand, if an officer duly commissioned in war by one state were to be punished by another f()r exceed- ingor deviating from the purport of his commission, the commis- sioning poicer cotild not be expected to rest satisfied with the judgment of the foreign court on the construction or execution of its own com- mission, and the dispute which must necessarily occur between the '.>' the Ivvo powers would he cml)arm.ss('(l by a (jiicslionahh; puii- isluuent, in addition lo llio orij^inid causi' of (X)U)iilaint." — Jiri- tish and Forciaily, as we lliink, eslablislicd the position, that the hostile violation of our territory, resulting in the destruction of the Caroline and the killing of Durfec, had the same been ordered by the British (lovernmcnt, would have protected tiie military engaged in it from any [)ersonal liability. We now maintain that the subsecjue'it approval of the attack, especially under the circumstances of the original order and the situation of the mother couniry in n'lation to her colony, and of Canada in relation to our border, furnishes equal im[)unity and protec- tion to all concerned in it. Tlu! authorities ([noted by Judge Cowen on this head, as we have already shown, do not in the slightest degree impugn the correctness of this |)osiiion ; whilst the authorities we shall now produce will fo'lify and i'ully sustain it. liurlhnaqui yt. 4, c. 3, sec. IS. — '* A mere prcsimj)tioH of the will of ilie sovereign would not be sndicicnl to excuse a Go- vernor or any other oHic(M' who should undertake a war, except in {,'ase oltu^cessilv, wiijiont either a general or particular order. For il is not snllicient to know what part the sovereign would ])nib.ii)lv act if Ik> wer(^ consulted in such a particular posture of alliurs ; but it shoidd rather be consid(Med in general what it is prob;d)le a jirince won hi desire sliouki be done, without considling him, when tlie mattcn* will bear no delay and the atfair is (lul)i(uis. Now, certainly, sovereigns will never con- sent that tiller ministers should, whenever they think proper, undertake without their order a thing of such importance as an oili'usive war, which is the proper subject of the present inquiry." Sec. It). — " In these circumstances, whatever part the sove- reign would have thought projjcr to act if he had been con- sulted ; and whatever success the war undertaken without his order may have had ; it is left to the sovereign, whether he will rallfij or condemn (he act of his ministers. If lie ratifij it, this approbation renders the war solemn, bij rejlecting hack, as it were, an authority vpon if ; so that it obliges lh(! whole commonwealth. But if the sovereign should condemn the act of the Governor, the hostilities committed by the latter ought ,0 jiass for a sort of Si 26 as )VC- pon- bis uhis \crCf lllh. lior, V of robbery, llie fiiult of wliidi by no iiir;ins fiffncts tbe State, pro- vided tbc CJoveriior is delivered ii|) tirid piinisbed according to tbe law ofibe country, a,' i proper satisfaction bo made for tbe (bimages sustained." 8 Peters, 522. — Story, speaking of tbc seizure of an Ameri- can vessel and cargo by a i^panisb vessel, says : " If sbo bad a commission under llie roynl autbority of Spain, sbc was beyond ritisb Government has removed all doubt about tbe sufficiency of tbe original authority of tbe Canadian officers. We bave thus far discussed this matter, as if tbe question, as to the relation in which the United States Government stands to the British Government, in the matter of this attack, was an open one — one in which the judiciary of tbe country is at liberty to decide by a direct application of tbe principles of the law of nations to the facts as they might be established by proof; and in this view of" tbe matter, we feel confident of having established, by the fads and tbe law, tbat the attack upon the Caroline was made upon sufficient autbority from the British Government ; or, if tbe authority was in any respect equivocal, that it has been ratified by the British Government, so as to require of the judiciary of the country, upon- \.he facts and the laio, a judgment establishing the perfect impunity of the military engaged in the expedition. We now propose to show that the character of the expedi- tion against the Caroline, and the relation m which the two 4 I v; mi' m iff m 26 coiiiiliics stand in iclrn-iicc to it, lins hern settled aiid diridnf. Iw our ( lovcrmiKMil to he that ol' " lair/'ii/ //v/r" of'i/ir '* iiupnirct sort ;"' Mild lliJit coiiils ol'iusiifc Jin- not at liberty to pionoiinec a dillerent jiidmnent (Voin that pronouneed by the ( Jovernment iiflbi.' count ry. Man our (loviMinnent deterniiiied the reliiiion in which thn two connliies stand to t>acli other in relerencc to the iiii|iiiiiiiy lo whii'h McLiod is entitled, as l)eiii<^ one ol" this military (>\|)C(litioii ? in May. IS.'IS, shortly alter the ilestiiiction ol* tli(> Caroline, in a coninmnicalion to the Hrilish (!ovt;ninieiil, our INlinister, Mr. Stevenson, <'liaracteri/,ed llu; nttiick as " an invasion of the territory and sovereiLMity olan inde|)endent nation by an Jiniicd force' ofa iViendly Towim;" iind Mr. Webster, Stcio- tary of Stale, in his letter to Mr. Kox of the XJllh April, IS'll, says: "tlu" (lovernnient, of the United States lias not, changed the opinion which it lias heretofore e\press(>d to her Maji'sly's (lovernnient, of the clidmctcr of the acl of desiroyinu; tlio Caroliiii'." C^an langnanc bt.; belter adapted to tleliiu; the first acl of war by one nation upon another, where tlieic^ has been no previous deelaraiion of war, than that. oinp!(»yed by Mr. Sle- venson tt) charai'tcri/.e this attack by (ireat Britain ? So loiif^ ago, then, as May, LSIIS, the Mxeonlive Depart- ment of our (lovcnniionl deKMiiiined that the attack n|)on the Caroline was an ai-t of war, and so far as that act of hostility was concerneil, placed the British Ciovernincnt in that rela- tion to onr own. Ill the letter of Mr. VVi'bster, before referrcMl lo, he recites the ground upon which the Jirilish (lovernment jjlaee the hostile attack, so I'ar as the military enij;agc(l in it are con- cerned, and the assent of our (iovcrnmcnt to this same view of the matter. Mr. Webster in his letter, says : " The President inclines to lake it for granted that the main purpose of the inslrnetion was, to cause it to be siiini- tied lo the Government of the United States thai the attack hi h'llcs ! the coii- \)fthe the liiriii- Itack 27 on the striinil)ont •Cnrolinc' vvns nn act (fnuhlii; I'orco, done. I)y thn lliitish cdloiiifil Miithotitirs, tirid liiily iccogtiisrd hy lh(! (iiift'ii'H (lovcnmirni .-il home; ;iii(l thiii, ((in.scfiiiniily, no it)(livi lu lh<^ jilsl |)i'iM('i|ilc of the liiws of iiMlioiis, ix; lirld pcisoiiidly uiis\viM','d>l(< ill die nrdiiiiity coiiiim ol' l.iw, uu liir ii private olU'iicc; iiiid diiit ii|MHi this avowid of her Miiji sly's (luvcni- ini-iil, Alexander Melieod, now iinprisoned on imi iiKhelnietit lor iiiiir(h-r, alle^i^ed to havt* heen eonnnittcd in that attack, ont^dit lo he ndeased, hy snch proeeechngs i\» are UHual and are siiilahN- to the caHe." After thin recital of the position in which tlu! British (Jo- verninenl pla('«\s iIk; iJiall(;r, Mr. \Vel>sl<;r, speakin/,, in holialf dConr ( Jovernnient, says: •• 'I'Ik! coimniinication oltla! Ijict that thfi deHtrnctinriof the '('aroline' was an a<'t olpiihlie lorce, hy the hritish •mlliori- ties, hciii^ ("ormally made to tlic^ (Jonernnieiit ol the United Slates hy Mr. I'\)x's note, the case assumes n di'cided .aspect. "The (jov(>rnmeiit of the United Stales (ailertain no douht tliat, after this avowal of tli(; of the question in its national aspect," and yet its decisions be void of all efficiency and (>ll('ct upon the subject dcc'ulcd vjmn, is, wo conless, beyond our compre- hension. The General (Jovernment cnnnot, it is true, after deciding the (juestion, issue any mandiile to a court to cnrry its determination into ellect, or remove a cnuse, or withdraw a suitor or criminal Irom ihe custody of the courts. But its decision becomes binding upon all courts or tribunals wliere the question arises ; and thus the Executive departniont of the Government " has charge of the (juestion in its national as- pect," and the law makes its (/rt-iivwt nil-powerful and efficient. It can hardly be necessary to resort to any course of reason- ing, or to the citation of authoriles, to show tiiat the Executive of the United States possesses all the power in regard to the matter in <[uestion that usually belongs to the Executive de- partment of every (lovernment. " The command and application of the public force to exe- cute the law, maintain peace, and resist foreign invasion, are powers obviously of an Executive character, and require the exercise of (lualities so characteristical of this department, that they have always been exclusively appropriated to it, in every well-regulated Govcnmient upon earth," — 1 Keiu''s Com. 28iJ. The memorable attack of the iiritish ship of war Leopard, Capt. Humphreys, upon the frigate Chesapeake, Capt. Barron, in which several American sailors were killed, became the subject of discussion between the two Governments, and re- sulted in an adjustment, in which, amongst other things, En- gland ofTered ** the American Government a suitable pecu- niary provision for the suflerers in consequence of the attack on the Chesapeake, including the families of those seamen who unfortunately fell in the action, and of the wounded survivors." Could Captain Humphreys afterwards have been proceeded against in a court of our country, and held personally respon- sible, notwithstanding the Executive department of our Go- vernment had settled the whole matter with the British Government ? There cannot be a doubt, as we think, that this I ^ii 4' J' ' I I I 11 I i .!!, If" r 30 ndjiistnirnt of tlir in;itt(M-, "in its iiMlioniil aapocl," vvns nii ji(ljiislincMt (iIiIk! miillcr in nrri/ iiH|)(icl, uiul Uiiidiim >i|'**" ""' coiirls iiiid trilxiiiMls ol'llut coiiiiIiy* This |)iiiici|)li' liiis been jiKliciiilly rcrou^niscd in l<'ni>liMi(l. 'riuM(i wlicrc llic Mxcciilivt! dcpiirlniciil, (»(" llic ( Jovcniinciit li;is d)M(Miniii('d llic nd.-ilioii in wliicli llic Kiilisli (iovcriiiiKMit st.'iiuls lowiinls Jiiiy oilier coiiiiHy, in rcgiird lo lioslililics, such decision is conclusive, nnd in all ihc courts pnuiludoa any fur- ther c\!iniiii:iiion or invitation of llu; (|iieslion. li Ctnup. I{. (il. This was a case of insurance tried l)el()ro Lord lli, and the cause luriKMJ upon iIk; llicr the trade lo St. Domingo was, at, lluit lime, with a country iit peace with I'aii^land. Lord FJIrnhoroiio-h. " In the present situation of th(^ world, th(Miaiional characler of dilltMtnt places, niust from lime to time l)t! diMcMiiiiiuMl hy conrls of justice. We had lately oo(Nision to try the national character of Oorfu. 'I'lie most potent evidence upon such a suhjtM't is t/w declaration of the. State; and iflht; Slate recoonises any placid as not hein;^' in the relation of hoslilily to this country, that is ohiiifatonj on courts of justice.'''' This cause afterwards came hel'oro the KiiiL^'s JJench, and is reported in 15 East, SI. Lord Kllcnhorough ilelivcriny; the opinion of the court, says : *' This is a r country slaiids to tlss [)ro- inuli>alion of the wid of the sovereign \\\ ih.it respect, it may be collected from other acts of the Stale. TIk; Master of the Rolls, in the case of the Pelican, lays down the rule generally ♦ that it belongs to the Government of the country to determine in wh »r J>> I 31 wliut roliiliou rniy otlior coiuilry sIhikIh I(»w;i,i(Im il, undthdl the. Court$ of justicr ((tniiitt diriilc ujnm t/n: jxiiiU ;^ hy wliicli 1 iiiiiisl llli(lcrsl;iii(l liiiii lo have s;ii(l llial llicy ciniiiot dccidr tidv(:rin:bj to lli*Mlccliir:ili(Mi oi' llic sovci'ciL^ii iipon ihai point. •' For vvaiil. ol'a (Icclaialioii oIiIk; (/'rowii ai ono period, dil- foronl Vi^rdiclH \vd frean [)ersonal res|)e)nsihility." The; moelo e)f rcincelyiiig this dillie;ulty, anel preventing such ce)nllicts in the; twe) departments of (jovc'rntnent, suggested by Mr. Buchanan, is, we; ce)nfe;ss, me)sl extraoreliriary. It is that the Secrt;tary of State, r(;prescuiing the executive department of Cioveirnment shall suspeuel the eleeisie)n e)fa epiestion pend- ing with a feaeigu (Ie)vernme!nt until tliej ejuestioti shall have been judicially decided ; and this course is suggested even ^ % ;| y mI i as in a proceeding where the Govcrnmeut is not a party, and where a decision may be delayed until those interested in the question see fit to bring the matter to a close ! Our remedy for what Mr. Buchanan calls this " awkward dilemma," is, the rule which prevails in England: when the Executive Department has decided a question between our own and a foreign Government, which properly belongs to the Executive Department to decide, "courts of justice cannot decide adversely." Such a rule produces consistency and harmony in every department of the General Government, and prevents all collision with the Judicial Departments of the State Governments. Without such a rule, the intercourse of our Government with other nations becomes empty diplomacy, where national matters, discussed, agreed on, and settled by the proper Executive Department, are not only disregarded by the Judicial Department of the Government, but are per- fectly annulled by adverse decisions and judgments, and exe- cutions carrying into effect those judgments. If, in England, the determination of the Government as to the relation in which another Government stands to it, shall control the rights of individuals, in a litigation with which the Government is not the most remotely connected, and in which the public has no interest, how much stronger is the reason for applying the rule to criminal courts ; especially when the guilt or innocence of the accused is made to depend upon the decision, as to the relation in which another Government stands to our own, in a hostile collision, where the accused was an actor, unconscious at the time of the possibility that the part he took could subject him to the imputation of crime.'' But this principle has received the sanction of the highest Court of our own country. — 3 Wheat. 634. — The U. S. vs. Palmer and others. This was an indictment for piracy, and grew out of a foreign civil war, in which Palmer and others, of the crew of a vessel of the revolutionary party, attacked a vessel of the other party. Palmer afterwards coming to the United States was arrested and indicted for piracy committed in that attack. w *> > !■ m. a J)fa Ithe [tes ck. 33 Several questions arose upon the trial and came before ihe United States Court. Chief Justice Marshall delivered the opinion of the Court, and in the course of that opinion fully recognised the right of the Government to dispose of all questions with foreign na- tions, and the duty of the courts to adopt the determination of the Government as the basis of their decision in all questions that might arise. "Those questions," says Marshall, "which respect the rights of a part of a foreign empire, which asserts and is contending for its independence, and the conduct which must be observed by the Courts of the Union towards the subject of such section of an empire who may be brought before the tribunals of this country, are equally delicate and difficult. Such questions are generally r aihcr jJoliticol than legal in their character." " The proceedings in courts must depend so entirely on the course of the Government that it is difficult to give a precise an- swer to questions which do not refer to a particular nation. It may be said, generally, that if the Govcrnmeiit remains r\eyx' XvdA., and recognises the existence of a civil war, its courts connot consider as criminal those acts of hostility which war authorizes, and which the new Government may direct against its enemy. To decide otherwise would be to determine that the war pro- secuted by one of the parties was unlauful, and would be to arraign the nation to which the court belongs against that party. This ivould transcend- the limits prescribed to the Judicial Depart- ment.^^ The saine principle was also recognised in a case 4 Wheat. 52. F. 63, Chief Justice Marshall again says : " The Govern- ment of the United States having recognised the existence of a civil war between Spain and hercolonies, but remaining neutral, the courts of the United States are homid to consider as laioful those acts ivhich tear authorizes, and which the new Governments of South America may direct against her enemies." Upon this principle it would seem to follow that our Govern- ment having determined that the attack upon the Caroline was an act of war " the Courts of the United States are bound to 6 '•i < > - V! 34 consider as Inioful those acts (of the attacking parly) which war authorizcs.^^ 7 Wheaton, 283. This was a libel, filed in behalf of the original Spanish owner, against certain merchandise alleged to have been piratically taken from a Spanish vessel. The defence was, that the property was taken by a vessel belong- ing to the revolutionary ])arty of Buenos Ayres, and duly commissioned by their government. Taswell, of counsel for the claimants, insisted that it was not surticient that our government recognised the existence of a civil war there. That until the government of the United States acknowledged Buenos Ayres as a sovereign and inde- pendent government, her ships could not be considered by our courts national ships. He conceded, however, that such questions belong to the government \.o decide. " Sovereign rights," says he, " may be settled not only in the federal courts but in the Slate courts, and to guard against the effects of a conflict of opinion in such cases between the different local tribunals, appeals are brought from the State courts to this court. It would be in vain, however, to translate a cause here, from the State cour's, if this court might decide it dif- ferenthj iVom the other dciiartmcnts of the government ^ " This must not be, however ; the people, though sovereign, can have but one will, and that will must be spoken by all their agents, or our government is a many headed monster. The question, then, at last results in this : In what department of the government does this will in relation to foreign stales re- side ^ for wherever it does reside, that will must be littered here, or we shall have two conflicting wills on the same matter. This does not impugn judicial independence. The judiciary are not independent of the law. They utter the legislative will of the people when declared by the legislature. They pursue its executive icill lohen communicated by the executive depart' mcnt. All nations have felt the necessity of such a course." Judge iSW)/, (p. 337,) upon this point of the case, says: "The objection is urged that Buenos Ayres has not yet been acknow- ledged as a sovereign independent government by the executive, expn Unite 35 eimi, jy all The ent of es re- here, liter, iciary ative They cpart- rse." 'The now- cutive, or the legislature of the United iStates, and therefore i» i I entitled to have her ships of war recognised by our courts fM national ships. We have, in former cases, had occasion to express our opinion on this point. The Government of the United States has recognised the existence of a civil war be- ll tween Spain and her colonies, and has avowed a determina- tion to remain neutral between the parties. Each party is therefore deemed by us a bclligerant nation, having, so far as t- concerns us, the sovereign right of war, &c., and as such must be recognised by our courts of justice until Congress shall prescribe a different rule. This is the doctrine hereto- fore asserted by this court, and we see no reason to depart from it." The duty of the court to follow and adopt the decision of its government, in all matters relating to foreign nations, was again more recently asserted by the United States Court in a case where a question of national boundary incidentally arose. 2 Peters. Rep. 307. Chief Justice Marshall says, " in a controversy between two nations, concerning national boun- dary, it is scarcely possible that the courts of either should refuse to abide by the measures adopcd by its own governmctit. There being no common tribunal to decide between them, each determines for itself, ou its own rights ; and if they can- not adjust their difference peaceably, the right remains with the strongest. The judiciary is not that department of the government to which the assertion of the interests against foreign powers is confided, and its duty commonly is to decide upon individual rights according to those principles which the political departments of the natioii have established.^^ Again, p. 309, " If those departments which are entrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivo- cally asserted its rights, it is not in its own courts that this con- struction is to be denied." We have now concluded our examination of the great principles of national law involved in the case o{ McLeod, and we feel great confidence in saying we have, by the most ample authority, maintained, 1st. That a hostile attack and li 1 'L' ;! • . 36 violation of our territory, in liino of general pence, by the aulliority oi'tliu Biilisli (iovcriiiiiciit, wiili aiipiiKMil ciiiisc, is no liir a '* hnij'ul uar^ otllic " iinprrfnt sort,'' lis lo luiiiisli im- [juiiily lo llic inililaiy ciiqa/^cd in it. 2nd. That ihc instructioiiH given lo the Ciovenior or (.liicf ofliccr ol'Oaiuula, uikIit tlio circtiinslances and situation of thut colony, cotitaiiuul siiiliciciii. aiiihoiity to lc<,rali/e the ut- tack ; or, if thut be (iouhtful, then, Jkl. That the sanction by the Hritisli (lovciJitnctit of thu attack, supplied any possible delieiency in tin; instructions. 4ih. 'J'hat the Kxeculive Department ol" dur (Jovcrnnient has decided, that the relation in whieh (jieal jirilain stands towaids our (loveriuneul, as to the alliiir of the Caroline, is that of '* i/w/J'tAy/ u'(ir;^^ and that "individuals con(.'eincd in that transaction ouij;hi not, by the principles of public law, and the general usage of civilized Stales, to bo holden |)erson- ally responsibh.'," and, 5th. That such decision, by the Kxeculive Dcpailmenl of our Government, is final and conclusive upon all the courts in the United Stales. It remains for us now to incpiire whether the mode of relief, by habeas corjjus, sought by McLcod, ought, under the circum- stances, lo have availed him. Upon this branch of the case Judge Cowkn, lor the sake of argument, concedes to McLcod the impunity which he claimed, as being one of the military force who made the attack upon the Caroline, yet decides that he cannot be dis- charged upon habeas corpus, because the grand jury have in- dicted him for murder. The principle advanced by the Judge is, that a man charged with rtiiHrdcr bij the Jindinr murder and other high crimes. 3 Baton A'>. 4^0, title Habeas Corpus : " Also the court will sometimes examine by aflidavit the circumstances of a fact on which a prisoner brought before them by an habeas coj-jms bath been indicted, in order to inform themselves, on examina- tion of the whole matter^ whether it be reasonable to bail him or not. And agreeably hereto, one Jackson, (4 Geo. III.) who had been indicted for jn racy before the session of Admiralty on a malicious prosecution, brought his habeas corpus in the said court, in order to bo discharged or bailed. The court examined the whole circumstances of the fact by affidavit ; upon which it appeared the prosecutor himself, if any one, was guilty, and carried on the present prosecution to screen himself; and thereupon, the court, in consideration of the unreasonableness of the prosecution, and the uncertainty of the time when another session of Admiralty might be holden, admitted the said Jackson to bail. 3 East. 165, King vs. Marks. Le Blanc says : '* This court have clearly a right to bail the parties accused in all cases of t ; I 38 folony, if llicy sec occnsion, whnicver there is auij douht cithtr on the law or (hv facts ol" I ho ca^•o." Wood worth, J. in thr cjise of 'I'aij/oc, 6 Cow. 58, citrs with approhaliou this vn\c ol' Lc; lUaiic lie srivs: " Tlir ((tiut will hail whenever there is any doiiht on th(> law or the /acts of the ease." It is true these were eases hcfore iiulietiiuMit. Ihil liie rule is laid down wilhoul liiiiilatioii ; and we eaii se(^ no reasf)n for limitinu; it to eases before indielnient, espcH'ially where the prisoner shows "there is donht on \\\c lair of \hr. ease," and more espeeially when he shows (hat " hv the law of the ease" he is innoecnt of th(» crime iinnnled to him. I liacon Ah. '>\()''\, title, Hail, in rriiiiinal cases : " So if a man be convicted of ielony upon evidence! by which // p/aivli/ ap- pears to the court he is not (rnilfij of /V," he will hv let to hail. Why, then, not let him to bail before conviction, " 'ii'hidainhj appears to the court that he is not guilty of it." 5 Mod. 444, ("apt. Kirk's case: Mr. Monlai!;u(j moved that Mr. Kirk mi^ht bc^ admitt(ul to bail, " f()r that he was very ■'dangerously ill by reason of the badness of the air and the inconveniences of the prison." There had been an inquest by the coroner for nnndi'r, and also an indictment by the grand The couns(d who opposed the motion for bail, said, " It is true your lordshij) has poirer to bail in treason or murder ; but you will not exert that power nidess it bo in extraordinary circunistanecs, as in somi^ cases that have been (juoied, and especially in such whtre the prosecution is thonght not to be tvcll grounded.''^ [Holt, Chief .lusticc.] *' In this case I do not thiidv the aflUlavits are lull enough. It does not appear that by this imprisonment they are in danger of their lives." Here is 'no intimation that tlu^ iudictm(Mit precludes all inquiry, on 'the contrary, the refusal to bail is upon a full intpiiry into the merits of the facts upon which the application is founded. In Cohi's Entries, ;554 to M^O, are three eases, copied from the rolls of the court, where there had been uidictments for murder, and the prisoner afterwards let to bail. f • -- -jr /T 39 13 on ic m 'or rii I Sdl/c, 104. — .1. S. hciri^^ coininilird upon fiu indirtmcnt for mdcr, iii()V(!(l to he liiiilcd. " (1 ,.' ' Unhrshij niul Tiirtnn worn lltl IdiililiL; liilii, IxMMii^i; t/ic rviiliiicc ujinu, the (i/JldavU.t iffitl (ltd not nccrn la (hem miJIUirnl li> jinnr /niii. iniil/ij. Iloll, (/'liirlj iis- tifc, jiikI (ii>uliL nuifni. 'I'lic cvidrncc il (irs !i Wrv.y liilM, :iti(l l,li;il, is ciioiiL'Ji. 'I'lic ;illn\viiiH llic rrccdftiii (»!" Ii;iil rii;iy flis- (;(»iii;ii;{! llic |»ios('ciiii()ti ; iImucIoic il is ii(»l lit llic coiiil should (locli ire. llicir oiiiiiioiiol (Ik; (fvidciicc liclui'li.-iiid : li»i it, iiiiist. pr('jiidi(;(! tli(! prisoner mi tlic om- side, or tlio proscriitioti on the oilier." Here, loo, llie i.'ieiils of llic Mppliciil iitli wero loolv( (I into; ;ind :illlioiinli l);iil w ;is rdiised, it vv;is not Itreunse tliei(! \v;is ;iii iii(li5. Seljridsfc, indicted in Massachusetts for manslaughter, was let to hail after indictment, (ioodwin, in(Jicte(l in New York for manslaughter, was, after one trial, and the jury not agree- ing, let to bail by Chief Justice Sj/encer. — 1 Wheder^t Crim. Cas. 434. ;i •■'. I i "1 I: I i; y ii » I; t ^ 40 m .^ Thus it will be perceived, that wliilst Judge Cowen is not able to cite a single case, where, upon applicntion to bail after inJictmevt for murder, the court has ?aid the I'.ict of an indict- ment was conclusive against it, we have been nble to cite S(.'veral cases in which the application was made after indictment ; in some of which the indicted person was let to bail, and in others refused. Yet in none of these cases is the idea ad- vanced that the indictment ineckules all inquiry. In all of thcni the yowcr is conceded, but not to be exercised, " unless in extraordinary circumstances." All the cases to be found in which the idea is advanced that an indictment j'rcch/des all inquiry, are cases where 7io indictment had been found ; and the remarks of the judges upon that point are mere dicta, and unworthy the character of grave authority. That the court have the power to look beyond the indictment, may be proved to the common sense of every one, by a few ex- amples : Suppose, upon circumstantial evidence before a grand jury, a person is indicted for the murder of another, and is arrested and imprisoned to lake his trial ; suppose such prisoner should afterwards sue out a habeas corpus, and u[)on being brought before Judge Cowen, should make a jn-ofert of the supposed murdered man, in full life and vigour, his identity placed beyond all question ; would Judge Cowen say, there being an indictment by a grand jury precludes all inquiry, and you must continue in prison until a court shall be held for your trial .'' Such are the doctrines of this opinion ! Suppose Robinson, the murderer of Ellen Jcwctt, should be again indicted by a grand jury, and arrested, and finally brought before Judge Edwards on habeas corjms, for a dis- charge, on the ground that he had been once tried for the same offence and acquitted. He produces the record of ac- quittal ; yet, by the decision of Judge Cowen, the Judge who tried him would refuse to look behind the indictment, would refuse a discharge, and remand him to prison to wait the sit- ting of a court, there to go through the form of producing belbre a jury the record of his former trial and acquittal ! 4 ¥' ^..,-Jg.. H^K A 41 ♦ Judge CowEN fancies that he hasciied a case even stronger than the one we have supposed, of a second indictment of Robinson. He says : " In Rex vs. Acton, 2 Str. 851, the prisoner had been tried for the murder, and ac(iuittcd. Afterward, a single justice of the peace issued a warrant, chargliig him with the same murdeVt upon wliich he was again committed. On an offer to show the Ibrnier acquittal in the clearest manner, the court refused to hear the prool". On the authority of this case, Mr. Cliitty, at the page just cited, lays down the rule that the court will not look into extrinsic evidence at all." Now this case is stated by the Judge entirely wrong. The person was not arrested for the same ojjhicc. The defendant was the keeper of a prison, and was indicted hyjmir several indlcla)ents for four several murders, and the question on the trial was, whether a place called the stro7ig room was a proper place to confine disorderly prisoners in, the four prisoners having died whilst so conlined. The jury acquitted the de- fendant. A single justice afterwards, upon a new information oi' II Jl/th person having been put into that room, and dying, thought fit to commit the defendant again for n fifth murder. Tb : court refused to bail the defendant, and he remained until the Assizes, when no bill being found, he was dis- charged. Thus, instead of being, as Judge Cowen supposed, a com- mitment a second time, after acquittal for the same offence^ it was for an entire new offence. We cannot but express our surprise that the Judge should, even if he had found such a monstrous case, cite it with approbation. Suppose a person in 1816 had been arrested and indicted for murder and arson, committed in the attack on BufTalo, by the British, during the war. Suppose such person brought up by habeas corpus before the Supreme Court, claiming the impunity of a soldier in time of war. Could the court say, we are satisfied that you cannot be guilty of murder, but as the grand jury have found an indictment, we are precluded from looking into the matter, and you can neither be dis- 6 l':} 42 4* cliart^od or lot to bail, but must reiimiti in prison until llic pn^pcr court sits lor your irinl ? Sucli iiro ck'arly I ho doclrincs ol" Judge ('ovvkn. lie says : '• It if! proper 1(» ndd, lliat il'llir matters urged in argument could have any li>gal ellei-t in favour ol" the prisoni-r, I should i'vv\ ei.;irely clear that ihey would be of a naliu'c availnble belore the jmy "«///• And that aeeordiug to the setthnl rules of ])roeeediug on liabrdu coijiiis, w(! should have no power ever to consiiler them as a ground for disithaiging llu; prisoner." Now, instead of su(di a rule pr(wailing, we liavc seen tbat in tunnerous oases, both in this (M)untry and in Kngland, ])ri- soners have been let to bail after indietmeui l()r murder and otb(M' crimes of the- highest grade. We have also seen " that alter a, man h;is be(Mi amvictcd of felony, uj)on evidence by which it plainly appears to the court he is not guilty, ho will be let to bail." In the famous conspir.^icy cases in the city of New- York, after the Land)crts had, by writs of error, reversed the judg- ments agaiust them, Hyatt and Mow(.'t, who were under .svw- taicc and sull(?ring punishmenl, by sejxirofc indictments and convietious, applied to the Su])reme (~^ourt, and were dis- cliarii;cd on luihrtn rovju/s, without bcnug put to tlieir writs of error to reverse the judgments. The true rule upon thi' sul)j(>et of bail or discharge, after indictment for murder, undonbt(Mlly is, for the judge to refuse to bail or discharge upon any alhdavits or proof that is sns- ceptihlc of being controverted on the other side. WIkmi, however, the prisoner's evidence is of that positiv(^ and certain charac- ter that it cannot be '\irainsnid" then tin; prisoner is entitled to be bailed or discharged, as in the case whi^re the man supposed to be nnnulered is living; when; the prisoner has been tried and acipiitted of the same olli-nce ; or where the supposed murder was a homicide connnitttul in a war between two nations. As applicable to the ease under consideration, if the attack on the Caroline was authorized and sanctioned by the Cana- I % m if 9 liter ('use svs- ncr, irnc- illcd iiKin lins the /ecu f * : J. v,\ (li.'in jujtlioritios and tlio British ( Jovcrnment, ihc evidence of such aiiihori/atioM riiniished by the Hrilish (Government and the Utiiied Slates is ol' that eoiichisive and record cliaractcr that it cjinnot be controverted ;il the irinl. If [)ro(bici'(l at a trial of the indictirient, it would show a stute ol" war between the two eountrit;s of tlie " impnfcct .so/y" st.-ited by Uutherforth, but neverthelefls a " lawful war,''^ whieli furnishes, under the hiw of nations, an inii)unily to Mefiiiod, a soldier eng;igt;d in it. If such would be the efUuM of that evidence on a trial of the indictment, then, on hahais anims, the sn,me incontrf)Vcr- tible evidence authorizes a disch:trge by the court. Another ground ui)on which tlu^ application for a discharge ought to have prevailed is, that our own Government has set- tled the chnrader of this hostile attack. It has decided it to be an " miwrfcct sort of war" and that " individuals concerned in it ought not to be holden persouidly i-es|)on.sible." That decision being, .as we have shown, binding and conclusive upon courts, the prisoner ought t(j have been disciiarged on his haljcas corjius. We here dismiss this subject, hoping, for the chfiracter of our country, that the judgment of the Supreme ('ourt may be reviewed, and an opinion so unsound in all its parts, as we conceive Judge Cowkn's to be, rendered nugatory as an authority l<)r the future. It '. r « 4 4 l'!,V. > ■ J 4i: