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New-York tribune. (New-York [N.Y.]) 1841-1842, May 19, 1841, Image 1

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Tu i : t r i b r x
In the Supreme ( ourt .Tiesday, .May IS.
Tnerewas a brilliant display of eloquence and legal abil?
ity in the Supreme Coutt Room yesterday when the debate
on the question of Alexander McLeod'a release on a writ of
habeas corpus came up. The prisoner came into Court
at Lai! past 0 o'clock, and at ten precisely Chief Justice Nel?
son and Judges Bronson and Cowan took their beats. The
room was densely crowded w ith spectators.
Mr Wood, Junior Counsel for the People, read sundry
?ocuinen** relating to the case ? first the enrolment of the
steamboat Caroline, dated at the office of James- \V. Brown,
Collector of the port of Buffalo, Dec. 1st, 1837: she was
described a.- a steamboat of 45 tons, 75 feel long,belonging
to William Wells of Buffalo. He ne.vt presented a License
from the same office bearing the same date, authorizing'
the said Wells to navigate the Niagara River?this the
Court said it was not necessary to rend.
V lie then brought forward the original deposition of Gil
m*a Appleby, taken before Judge Boweu on the 12 th of
December, when McLeod was brought before that Magis?
trate on a suit sif habeas corpus after committal. It sets
forth iiiat he had command of the boat on the night of the I
29th, when She WttS boarded by some .00 or 00 men who
came from the Canada shore in five or rix rowboats. There
^wa? firing both before and after the men cam" *n hoard.
He wa-s roused by the watch on deck, ami in attempting to
r ime up from the cabin he was met by a sword-thrust
which slightly wounded him but not severely. He saw
the inan who made the thrust, and at that time and ever
afterwards believed him to have been Alexander McLeed.
He had seen McLeod bt fore -md was someWhal acquainted
with him. He could not swear lliat H was the same indi?
vidual then present in Court, w ho made the thrust; the
Jjonly circumstance which prevented him from doino so was
Ithat the one who assailed him on the boat had a more !
?flushed face than the prisoner. Witness did not see Durfee
tints! after he was dead : he saw him then lying upon the
Railroad traek, shot through the head wiih a bullet. He
naw no one dead in^ie warehouse into which he ran.
, Mr. Wood then read the deposition of Samuel Anson,
;taken at the same tim?f with Appleby's. lie re-ides at
Lockport, and was at Chippewa ,*i the time of the burning
[of the Caroline. He knew McLeod, and ?au- him at a
Stavern in Chippewa on the morning after the Caroline was
destroyed. There were a number of persons in the room,
disputing among themselves who had done the most work
in the Caroline allitir. McLeod said "I killed one d?d
Yankee, and there's his blood" ? at the same time
showing a horse.pistol, the breech of which was stained with
i He had on a sword with a red sash ; witness don't
know that McLeod said anything further. Witness is a
i trpenter, and had known the prisoner for some six i>r eight
months; do n't know any of the oilier persons in the room
at the time, nor can he report any of their conversation.
They ail seemed to argree that McLeod had done the most
in the attack.
The affidavit of Norman Barnum, dated Dec. 21, IS37,
taken before N. K. Hall, Alderman of the Fifth Ward of
Buffalo, was then re.nl. He was at the British encamp?
ment a; Chippewa on the night ol Dec; 29th?saw theCaro
Lne passing to and from Navy Island, w hich caused consid?
erable excitement among the British troops. An expedi?
tion wa- arrayed under command of Capt. Moshcrjo cap?
ture the Caroline. At night the boats set off?twelve in
[Bomber; the lights of the Caroline were seen and it was
known that .-he was at Schlosser. Beacons w ere lighted
on shore to guide the boats on their return ; when they
I came ashore McLeod boasted thai his sword hud drunk the
blood of two men. He has no doubt that McNab knew of
and approved the expedition.
Willis Hall th :; read fro:.-: page 2vi o! Sir Franc.?
iBond Head's Narrative two extracts from his despatch to
Lord Gletielg. to show that if Sir Francis could he believed.
lue assailants actually set foot upon the territory t-f New
s Yeri.
Mr, Wood then read Gov. Marty's Special Message to :
?the Legislature, dated Jan. 2d, 1335, with a letter front Mr. 1
?Rogers, District Attorney for the County of L'rie, to Gov. j
jMarcy. dated Dec. 3, setting forth the facts and cir- .
jcumstances attending the destruction of the Caroline. It
?enclosed an affidavit of Capt. Appleby, stating that he left j
puffalo in the Caroline, on the morning of December 2i>,
ifor Schlosser, having cleared to run between Buffalo and !
?hat place. While at I'luck Kock ran up the American flag :
ja volley of musketry was fired at the boat from the Cana
Idian shore, bur did no damage. Landed passengers and
borne articles of freight at Navy Wand; thence went to
;S,h:. s : : made two more trips in the afternoon, landing -
passeng. :> and freight as before. At G P. M. moored at
Ithe wharf at Schlosser.
His crew consisted in all often persons; twenty-three
Oil rs came on board ami asked leave to stay for the night
ras they could get n > lodgings at the tavern. All turned in*
ut'out 10 o'clock. About midnight was rou-ed by the watch
fondees-, who told him that boats were approaching Be?
fore :.e could reach the deck the boat was boarded by some !
ISO or 70 armed men, w ith cries of " G?d d?n the Yan?
kees ! kill them al!?give them no quarter/'
N'o resistance was made?all fled for their lives. After
?the boat was cut loose he made diligent search, but could
?find ot.ly twenty-one of these who were on board. Be
ueves that twelve men were killed on board or drowned in
?o ag over the falls. Saw the beacon-lights and heard the
ca?tts oa the Canada <id>-.
<< i de?ire vou ?? B*der?Uiadl the true pi
Depositions of James H. King, C. F. Harding, and five i r
-ix others were read, confirming that of Capt Appleby.
j Mr. IJ nil then read the remainder of Mr. Forsyth's note
J to Mr. Fox, of December, 2G, iSV), of w hich part wi<
j read by McLeod's counsel yesterday. In the part now read
Mr Fonryth assert? the indepen ientjurisdic?on of the several
routes and the right of Xew-York to take judicial cogni
zrtncj? of this matter?denies the power of tha Federal gov?
ernment to interfere, and it* duty to do so even if it had
:ite right; assert? the existence ?.f two distinct methods of
redress, one by the National Government for the National
i wrong, tb*j other by the State of New-York for the wrong
! done to that Star-, Arc, and argues in support of the course
taken by the tribunals of New-York, See.
Mr. liail said that the testimony in behalf of the people
. was then closed, as it was deemed sufficient to present a
! jrrima facit cass in testimony.
Mr. Bradley, one of the Prisoner's Counsel, then rose
, to address the Court. In consequence of ill health, he said
he felt unable to go fully into the merits of this case, and to
discharge the high duty of arguing great question?, com?
pared with which the bare question of peace or war was
of secondary importance: This, he said, was the first at?
tempt ever made in any court, to hold an individual re?
sponsible to the municipal tribunals of one government for
acts done in obedience to another?and that other his own.
j If this principle were sustained and infused into the code
of nations, a revolution would ensue, the consequences of
; which no eye could foresee, and no judgement rightly esti
' mate.
lie then recapitulated the fac ts developed in the testimony
presente?! on Monday, stating them as follows: That Cana?
da is a distant extremity of a trans-Atlantic monarchy, with
! local powers fully adequate to her situation : along her
Southern border i>- a country with different institutions,
whose people were ardently attached to their republican
. principles, and desirous of seeing them widely diffused
! Meetings were held, attended by men of respectability, ad
dresses delivered, recruits beaten up, arms and provisions
j solicited and contributed, and Navy Island occupied, mostly
by citizens of this republic! The object of all the-e trans
, actions was to arouse a population of more than hall a mil
i lion against a nation whose fortresses belt the globe
Schlosser was a point of communication between this Navy
' l.-lapd and our shore ; the men on the former place looked
; to our coast for supplies, and they had good cause thus to
i look : for our arsenals had been broken open, our arms
j plundered ; and the same spirit prevailed all along the bor?
der, from Buffalo to Vermont. The motive for all this was
known and proclaimed.
At the lime of the Caroline's destruction, Canada was at
peace ; but these preparations amply warranted the belief,
that she would not long remain .-o. The apprehensions oi
her people were aroused, and well might they be?for what
i chains were ever lightened by an unsuccessful effort to cast
them off!?It was necessary to their safely that this com?
munication between Navy Island and Schl?sser should be
t lo?ed. Beyond the imaginary line separating Canada from
the 1*. S., her cannon would protect the Caroline : within
: that line she relied upon the neutrality of the United States
for safety. Thus was neutrality made the strongest argu?
ment by one nation for inv ading the territory of another.
To close this communication, a farce was organized by
the Canadian authorities, and despatched to capture the
Caroline : of those on oard this boat, some fell, some (],-<) ;
the boat herself was turned into the current, and .- nt over
1 the cataract: th* adventurers turned back, and beacon
lieht.- Matted along the shore, to guide them to their friends.
.Mr Bradley said that he would here pause to tell the coun.
sei on the other side, that whatever eloquence they im^ht
have t? spare upon this as an unauthorized aggression of our
territory, would be well bestowed. Such is the view taken
of the transaction by our Minister at the Court of St. James;
such were the views ol Gov. Marcy and of .J! our authori?
ties ; and he tntsted the counsel on the other side would
i ever be animated by the Mime z.-al in behalf of their couh
. try's rights. In making good thai position, said Mr. Wood,
they establish our own. Jt must be borne in mind that neu
tralily can only be preserved and can only be violated ly
nation*: individuals, as agents of their government only,
can do both, and then the nations become responsible. It
then becomes an act of public force?of one sovereign -tot
done upon another. The doctrine to which this case re?
solves itself is, that allegiance is a duty which all men owe,
and upon which all civilized nations insist, and which they
universally recognize. When a man under duress of that
allegiance violates that neutrality, the government whose
agent he was only becomes responsible.
The prisoner is charged with murder in the first ind se?
cond degrees, and with having been an accessary after the
fact. In order to fasten this upon htm, it must be proved
that his conduct was purely voluntary; that assent must
have been uncaused by Any restrain: either physical, which
allows no power, or political, which aiiows ao rieht, to act
This leads to the question how far nations will recognize
the duty of obedience which subjects of other nations owe
to their own country. Seme preliminary considerations
wen- to be regarded previous to the discussion of this
Publicists all refer to a state of nature for a model of the
rights a:ui duties of nations: in that state all men are equal
_independent: each gives no law, because he has no
inferior, and receives none, for there are none above him
In matters of right he consults only his own conscience :
in matters of judgement, his own understanding: iti matters
of power, his own right arm. A man ? but a miniaturt na?
tion. Kach state comes in the course of its growth to have
a conscience, an understanding, and a right arm. Kach in?
dividual in it agrees to obey, and all agree that thus ibey
?ncr ?ach shall have protection: and this is allegiance and
the reward for it- To assist in carrying out these designs
and laws, armies and all the machinery of government are
devised. Fach nation is thus but a moral person, and codes
have been framed by which their rights have been defined
and enforced, and wrongs redressed.
Sovereignty?including the power and right to determine
what is to be done?every state must have. No matter
where it is placed, or how exercised. There is a supreme
power in every state, to which all othurs must be obedient
?governing absolutely and without appeal. Correspond?
ing with this right of sovereignty, and coeAleaaive with it.
is the duty of obedience : wherever the command comes,
it mu-t be obeyed. It" the law be unwise or unjust, they
riaciclo- of the Goir-nmcnl. I vrt?iti them carricrl e
' may reason, remonstrate or uke up arms against it, am; |
; overturn the power that gives it force : but while they con
; tmue subjects they have nothing to do but to obey it. So
i far-reaching i- this doctrine that it has warned into asenti
I ment, arousing the best feelings in its behalf, glowing in
j every heart, and brightest in the purest.
It follows that whenever a nation recognizes another as
having an independent existence, she recognizes ipso facto
1 right of that nation to command and the duty to obey-.
Every nation which rec0gni7.es another's independence is
estopped?legally estopped, from denying this right and
duty; and even- interruption oi'thU i.- a just ground of war?
i not merely in self-defence, but because it i- a breach of faith
' ?denying in practice what it has recognized in theory. A
j nation which will not recognize this rieht to command, and
its correlative duty to obey, in the opinion of Publicists,
J should be extirpated.
Since, then, sovereignty and'ofcedicneeone constitute a go?
vernment, and since the lawful existence of both is recogniz?
ed by the recognition of independence, it inevitably follows ;
that whatever any subject or citizen may do. in obedience !?>
j his own government, under duress of its law*, he can never
I be punished for by another: for what can be worse than to
punish a man for doing what you acknowledge to have been
his duty. I'.e the act war. or i.wa-ion. jenend or local hos?
tility, destruction of the Northern Fleet at Copenhagen or of
j the Caroline at Schlosser, whenever the command is given
by a competent authority, it must be implicitly obeyed t the I
j ritrht of sovereignty demands it : the duty of obedience com- ?
j pels it: and the recognition of independence pardons it.
lite actor was an involuntary cm?in duress?bound by
: claims which nothing but revolution can sever: other States
! have no right to give him any inducement to do otherwise
He may go on in obedience to an unjust law if he choose? I
; it ishi- own matter, and no other state cau blame, much le-s
punish him for doing thus. If n state be injured she may
j redress it, but no individual : as well hold tin- tumbling ;
'. granite responsible for the ruins ?fits fall as any man for hi*
j act?when compelled by as strong a necessity as thu laws of
1 ature impose. I
Have not the United States and Great Britain reeo_-:.ized
, each other's independence by war, by treaties, by every ne- <
; gociation which can be transacted between Nations '
Mr. BltAOt.i:Y here alluded tu the justice ,,f State llLhts.
: which has been harped upon in connection with this matten
; showing that the case would in ho wise have been altered if
j New York had been it separate Empire. An act is done by
Great Britain?an invasion of our soil by her commands?
? what code includes this transaction ? the cub- by which na- I
I tions' rights are defined and redressed. TJ?e municipal tri?
bunals of New York have nothing to do with it: thev are
devised to deal with her own citizens, individual- who c*tu- '
I mit critnes on their own account, not on that of Nation-.?
j Juries are the Inquests of their own Courts, not of Nations.
Tribunals for the redress of national wrongs begin at dif?
ferent place.?, act on different principles, and arrive a: dif
ft-ront results; they never refer to juries. It", then, New
York were an independent State, her municipal tribunals
could have nothing to do with this case. P,ut she is not : she
ha-no external relations, can make no treaties, cannot even
. surrender a fugitive demanded by Canadian uutlioritics;?
' haw then can she take cognizance of a national wrong ?
Why then should the prisoner be longer Held ui*custody
; Because in.the first place- we are told, an indictment has
: been found, on which the prisoner must be tried. Bui
this confer jurisdiction1 Consent, a plea of guilty, the sta?
tutes of N. Y.?those of the I". S. cannot do it: and shall aa
indictment then effect it ? What is an indictment' Simply
a declaration in a criminal suit; and who ever heard that in
.1 ? ivil suit a defendant could not be discharged after a decla?
ration .'
Again, Durfee was not killed upon the boat, but on the
: shore : it is then said that bis death was not necessan to the
! capture of the boat, that therefore the assailants exceeed
I their order. It must bo remembered that the nature of that
' invasion wa- one of hostility?it w n . during a temporary war;
and if so i; i perfectly immaterial w hat outrages we com
! milted. We have no nght to inquire whether too much or
too little blood was -lied. The invasion w as in defiance of
, our law?such defiance as a nation makes. 'J"ii.. j.,v.-,.l. rs
j owe no obedience to the invaded nation : their banner shows
I what nation they serve. Never before has it been contended
that the members of an expedition are to be held responsible
for what was done. All the facts of the <w -how that this
j is a national affair, and that our municipal cuutt? have :10th
j ing to do with it.
The whole ?t'this ease is founded upon the error that sub
: jects of one government w ithin the territory ofanother, there
' doing business in obedience to their own. arc responsible to
the municipal laws of the other. Oh this the whole claim to
j detain McLeod for one moment, is based. This claim is ] d
; tuiblv disproved by the exemption of our Minister at the co
of St. James, and the meanest of his servants from til! rc??pon
' sibilitv to the English laws: he is amenable to law, but not
to that of Her Majesty ?
1: has -K-eti said, also, that the dignity of the State is con- .
cerned in bringing McLeod to trial. What dignity can the
State have or derive from her municipal Courts holding in
? duress a man over whose conduct they have ho jnrisdicti ??:?
I in usurping cognizance of questions of international law I
1 Manv, too. suppose that an arrogant demand f?r his release
! has been made. Boons, let me remind you. are craved; fa*
vors are asked, bur rights are and always si, >ul ! 1 e demand?
ed. Twenty year* ago a transact:T. f. k place y. 1'i.irida.
' -lien under Spanish jurisdiction, not unlike the one before -.is
? in some of its principles: the Territorj was invaded by at
! American leader, who. it was acknowledged, had exceeded
his powers; he went farther even than was charged upon '
him by the eloquent orator of Kentucky, whose bolts,! like
! those of Jove, fall oft and hallow what they strike. The
: Court under whose cognizance this case v. as brought told
the -.'l.iiers that their chief would direct them and that him
thev must 1 bey. Suppose now one of these men had after
? wards been taken in Sfain anil tried for the murder of one of
t ,? r tn : would his rr'?:?.? have been claimed a? a boon,
I asked as a favor, or demanded as a rightly our Government'
, Would oar Minister have rowe to the Spanish authorities
i trailing behind him the banner tearing the star- and stripes
? of hi- aarivo land ? It would have been claimed as a sol
? die.'- right; this would have laid hold of Che National pro
I tection?it would have clutched every sinew of the National
I power, and the same elocuence which flashed around his
chief to destroy would have gleamed around that lone and
distant man :o illumine and protect: and if the country hid
nl?.1 :i?k nothing more.**?!!?? ?- v
not rescued thai man from hi* dungeon, or plant''.! it* banner
?>n Iiis grave, she would have iescrved ti> be blotted from the
roll of nations.
This is a national aruir: let tis*? Nation then settle it?
amicably if they can, but if not let them carry it to the grand
assize of Na::..t;s. calling upon Ciod to sustain the right'*
but never let it bo ?aid that a civil, humane and Christian Na?
tion had wreaked its vengeaa v upon a helpless Individ'.::.!
forced to yield to the commands for obedience to u kich he
In conclusion the whole prosecution resolves itself into
those principle*:
1. It seek* to make the Municipal Court* of New York ex- ^
orcise jurisdicticn over the ri;;?it- of Nations.
I: -eck-to deprive the National (iuvornment of power :
conferred upon it by the Constitution, and drag it down to
the lev.-; of the Municipal Courts.
o". It seeks to thrust tin- Municipal Courts of this State
between the duty of subjects of foreign Nations and their j
own Government. ?
!. [t violates the independence of Nation*, which allows
each to be governed by laws of its own framing. This it i*
which gives to the subject a solemnity greater than attaches
to any mere question of war or peace; these are but tempo?
rary in their character: not so. however, with the everlasting ,
blight i t un evil principle ?nnetiotied by the high Courts of j
ttje Innd. I
After Mr. Bradley had concluded hi., argument, Mr. WooD;
District Attorney for Niagara Co., and o:;o of the Counsel for ]
the People in this case, arose. nu?l after some remarks of a
general character, proceeded to explain the circumstances
out of which the present trial grew. (litizcns of our govern?
ment, he said, had. participated in the invasion of Canada,
and had paid the penalty: they had been seized, trie.I und
executed?and our government had interposed n? claim for
iheir surrender. The same justice, he maintained, should
be meted out to those Canadian subjects who had, in a like
unwarrantable manner, invaded our soil, and that die British
government have no ground for demanding their surrender.
He contended, moreover, that before die prisoner could
justify himself, he must prove that the person under whose
authority he acted, had aright to is-ue such orders, and that
he was bound to obey them. There is no principle, said Mr.
U.H..1. by which this act could be justified, except in case ,,f
war: and it i- conceded on all hands, that at lite tittle ot'its
perpetration, there was no war between the two govern?
II.- denied also the ground dint if a British subject invn-Io
our soil, the avowal of the net by hi- government does not
release him from responsibility and punishment. Thee..tit.
?nunei.ver, he maintained. h?<! no authority to impiire into the
rase i:i its jtjjj^etit *hnp.\ The prisoner had been indict. ,!
f r murder, and had pleaded not guilty, that is. hud demand?
ed that tho#caso be tried by a jury :?In? had thus formed an
issue which could be tried only by a jury.
I tie only propci inquiry for this Court was whether he had
been legally committed, ami several portions of the Revised
Statutes were rend to show that they had nudtority to in?
quire into no other point than this, viz : whether the papers
wem regular upon their face. In this case iris conceded
that nil the papers are exactly and properly ma le our. there
has been no error is the process, and the whole investigation
must therefore !<e at an en.I. The several grounds maintain?
ed by the prisoner's Counsel, that of Iiis having acted under
orders, Sic , ore proper t.me before a jury on his trial :
the C "I.: could ncitherconsider this point nor inquire whe?
ther the orders had been exceeded: they cannot go behind
the indictment to enquire into any^matter wltatcver.: if they
may there is no case in which an accused individual may not
come up to this court anil ash hi- relc iso.
After Mr. Wood had concluded hi- argument, which, tor
want of space, we have been compelled to omit. Hon. Wtr.
i t- II ti t.. Attorney General for tint State ami Counsel for
tin- People in this case, commenced hi. pica by saying that
the matter before the Court was strict!*, a matter of law : the
Court was a Court of Law, and he intended to argue die
case strictly a* a question of law. The demurrer he consid
erod withdrawn', and thcxase rested on allegations to be pro
The prisoner stand* here indicted for murder: he has
pleaded not suiiiy. Notwithstanding th:*, a motion has been
made that, without trial of this issue, without any disposition
of the indictment, the prisoner bo discharged. There is no
pretence of informality, or that he is not legally detained in
custody, Now by the common law as well as by statute,
both in tili- country und in England, an indictment must be
dismissed either by a motion to quash, for prima facia in?
formality, by a trial by the record, when issue-* of law are
presented to the Court by questions of fact presented to the
jurv or bv a v.ollr prosequi. He asked the e,iur:-e! to show n
preci dent for any other way ra d sposc a:. im^Ictment.?
XI : motion before the Court is a novelty, a motion without
pr -ccdent?an experiment upon the Court, the first of the
kind that had ever been made; and he trusted the decision
wonld be* such that it wou!: speedily be repeated.
Bv the English Law a w rit of haSeas corpus would not be
-ranted t" one indicted for tnurdcr by the Court of Queen's
1" 'uch. He referred to the izreat Statute of which Lugland
and we her defendants, alike are proud, the 31st Charles
II. < iiant. il. He also referred to statutes specially excepts
ins from the benefit of ha?>eas corpus coses of a criminal
character. (56, Gco. LIT. Chap, ion.) If, therefore, tie
prisoner were being tried by the legal tribunals of hi* own
counn-y, he would not be allowed the privilege of appearing
in (' mrt and being heard on this question.
The indictment of a Grand Jury is in its nature and in the
reason ?f the thing, of the *ame character as the decision of
a Court. This Cattrt cannot alter the verdi rt or the finding
of a Grand Jury. If. then the prisoner be discharged, the
Court 'will assume a jurisdiction over the indictment which
no tribunal has ever yet claimed
Art:-: tiie provision is that die rmrty may make ailegs.
t; ,...'?.-proof* :'the State also, or the plaintiff may make
. .. r alb gatitrns and counter proofs. Li this case, after
the indictment has been found, this Court cannot investigate
dm matter-: n a part of the testimony on which the decision
ii:. bebased, is -hut out by the law. Aiitbonties were
. , -,- .u- 7?*;, !~* true, then, tnat tins Court
,-jted to iBusrrate this. It u -* iru '
cannot Kok b. hind tbc indicunent. it they are shut out from
pun of the testimony offered to the Grand Jury, and it the
case cannot be heard after the indictment, it must end here
, s- far as the Court is concerned
What now d" the facts which have been laid before
0 F FIC E NO. :i <} A S \ - S T. \
vol. I. !\0. 35.
al along our northern border; on Doth ?ido* the inhabitants
! an- greatly ewaged with earl, other; a bitter tebelKon ha*
! hr,Aen furUl' n,aa.T o( the unsuccessful rebels have tied u>
thu countj-j-, and have excited the sympathies of o..r rwophs
tn their behalf. They have ngmn gone back to Navy Island
a locality out of our jurisdiction?and some of our cidzen*
have followed them. There were high apprehension* of
violence on the Canadian side, nor without leason : at th*
; same time our Government was doing all it could to put a
: stop to all violations of the neutrality between this country
in.l England. The letter of Mr. Rogers, too. shows that
the vrisi- had passed, the matter was over, and the patriot*
kad altn >st entirely disperse.!.
I nder these circumstances this invasion of our Territory
was committed and some of our citizens murdered. After
this transaction, which had rested now for three years with?
out any explanation from the British Government, this nan,
McLeod, who charged with having committed the murder,
is found within our jurisdiction : he is arrested and brought
before our magistrates, und proved by strong evidence to have
been guilty of the murder. Me is committed for trial. At
?the tame time, too. every effort was made to procure his re?
lease; ha was urged to prove an alibi, and every'facility
afforded to aid him in procuring n discharge; there was every
disposition to enable him to take all possible advantage of
I tin' circumstances attending his arrest and his agency in the
capture of the Caroline. This is all of the case that they
can make out.
What kind of facts, now, can the Court take into consid?
eration ' Plainly none except guch as go to show the legal?
ity or illegality of the commitment or detention, not t>> the
guilt or innocence of the party. The statute positively re
stricts the inquiry to the legality of the commitment : but au
innocent man may bo legally committed,and even convicted.
The distinction is broad nud essential: if it be not made,
where U the ('o ut to stop? Why may not every murderer
be brought into the Court and allowed (o plead lor a dis?
charge ? This da?s of facts, then, covering aught but thu
i ? . ? ?
question of legality, is cxclxded.
To illustrate the case: If an Embnssador of any foreign
? government were to be arrested and committed on any charge,
and he w ere to appear iti this Court by writ of habeas corpur,
alleging hi? irresponsibility to our laws, the Court could only
consider the facts which go to show this irresponsibility.
Again: if a man should kill another in self-defence, and
' should he arrested tor it: nay. if a Sheriff should be arrested
tin executing the sentence of the law upon a condemned crim?
inal, could either of them come into this Court and spread
out all the<e circumstances, pleading the causes why they
should net bo condemned, and thereupon asking" discharge?
Most clearly not. This is nil a question for the Grand Jury.
It is plain, therefore, that this Court can listen to no matter
which go.-* barely to show the guilt orinnocoriceof the party.
Let us consider now what i- to be the effect the resent
avnwal by Great Britain that she approves and sanction- the.
act for which McLeod ha- been indicted. This order can
have effect only in one of two cases.
!. When used as a justification of the prisoner, to estab
lish his innocence of the crime charged, or
?>. When, th.- guilt of McLeod being admitted, the order
is used ns a protection te.cxonernte him and take him away
from iubjociioii to our Courts and amonabihty to our laws.
In the first case, it' the order i- to be used as a justifica?
tion- of die prisoner it is exclusively for the consideration of
the Jurv; i' is not in avoidance but in denial of the indict?
ment. The indictment charges that the prisoner did mali?
ciously, instigated by the devil and out of his malice kill the
said Durfcc, but this order denies and says that he did it,
not at the instigution'of the devil, but in the discharge of his du?
ty; It is then clearly a matter for die consideration of tin-jury
on the prisoner's trial, and the avowal can properly come up
unl\ before them. The ground- as laid down in the order of
the British Minister are these; the transaction was one of av
pul.lie rlmnieter: tie- scheme of cnpttiriiitr the Caroline is as?
sumed to have been planned and executed by the pri-ouer,
who was authorized to take any steps ami do any nets ncCCS
sarv to the welfare and peace of her Majesty's -ubjeets in
Canada; and therefore, any subject who did this w as per?
forming na act of public duty. This then put, it on the
"round thut lie was doing no criminal net ; this i? clearly a
matter for the Jurv to decide upon : indeed it necessarily in.;
valves going to the Jury, for the question of duty hoi no con
v ttion with that of the legality or illegality of his detention.
The question too would arise whether the prisoner had ex?
ceeded his eitler-, ar.d this is also most clearly a matter of
which a Jurr only eiui take cognizance.
J*o order of an Execulivecnn justify any act for which ait
individual has I ecu indtctcd and then tube his ease put of the
: Court*. Suppose that the Governor of this State should call
out the militia of the State, and that one of the soldiers should
kill a citizen, for which he should be indicted and brought
lit' for trial. What effect would an order from the Governor,
, - fying tie- facts and ordering his release, pr.alucc in this
Court but astonishment? And -hall we Usten to an order
I a Foreign Potentate when one from our own Chief
Matristrate would be powerless .'
We have thus corundcred the order of the British .Miaister
for his release in the only lighr in which I am confident the
prisoner can be discharged by virtue of it. and have seen that
i: is then only a m itter for the eon-iderati.m-.of a jury. Let
now suppose the prisoner guilty, and regard this order as
iate, .led to pr-tect htm from the authority of our laws: this
ii q pertinent subject for discussion in this Court: there are
three inquiries we are to consider, viewing it in this Ught:
1-t. Is the order sufficiently authenticated by Mr. Fox's
Vtter to Mr- Webster ' (The authenticity of the fetter itself
., i ;, ? be contested, dwugh the original would have been
more salis/actory than a copy.)
.->,! j, the order set forth with sufficient particularity in
letter to show that i: covers the act for which the paitf
is indited?
:;,!. < aa the or let of a foreign gorerumer.t protect a mur?
derer from trial in this State ?
As to the second inquiry* the letter alluded to says that
the " transaction tor which McLeod has been arrested ar.d
is to be put on his trial, was a transaction of a public charac?
ter, planned and executed by persons duly empowered by
her Majesty's colotiol authorities to lake any steps and to do
any necessary for the defence of her Majesty's territories and
for the protection of her Majesty's subjects." But McLet d
is indicted for th? murder of Durfee: is Ulis the transact" a
-.'lanned and executed by the Canadian authorities ? It can

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