Review of the opinion of Judge Cowen, of the Supreme Court of the State of New-York: in the case of Alexander McLeod

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N. T. Eldredge, 1841 - 43 sider
 

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Side 15 - Lord Stowell (1 Dodson, 247) observes : " It is not the 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 nations. A declaration of war by one country only, is not a mere challenge to be accepted or refused at pleasure by the other.
Side 27 - British authorities, being formally made to the Government of the United States, by Mr. Fox's note, the case assumes a decided aspect. The Government of the United States entertains no doubt that, after this avowal of the transaction, as a public transaction, authorized and undertaken by the British authorities, individuals concerned in it ought not, by the principles of public law, and the general usage of civilized States, to be holden personally responsible in the ordinary tribunals of law, for...
Side 21 - McLeod has been arrested, and is to be put upon his trial, was a transaction of a public character, planned and executed by persons duly empowered by her Majesty's colonial authorities to take any steps and to do any acts which might be necessary for the defence of her Majesty's territories, and for the protection of her Majesty's subjects; and that, consequently, those subjects of her Majesty who engaged in that transaction were performing an act of public duty, for which they cannot be made personally...
Side 27 - That an individual forming part of a public force, and acting under the authority of his government, is not to be held answerable as a private trespasser or malefactor, is a principle of public law, sanctioned by the usages of all civilized nations, and which the government of the U. States has no inclination to dispute.
Side 24 - In these circumstances, whatever part the sovereign would have thought proper to act if he had been consulted ; and whatever success the war undertaken without his order may have had ; it is left to the sovereign, whether he will ratify or condemn the act of his ministers. If he ratify it, this approbation renders the war solemn, by reflecting back, as it were, an authority upon it. ; so that it obliges the whole commonwealth.
Side 35 - If those departments which are entrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its rights of dominion over a country of which it is in possession, and which it claims under a treaty ; if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied.
Side 35 - The judiciary is not that department of the government, to which the assertion of its 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 nation have established. If the course of the nation has been a plain one, its courts would hesitate to pronounce it erroneous.
Side 35 - Buenos Ayres has not yet been acknowledged as a sovereign independent government by the executive or legislature of the United States, and, therefore, is not entitled to have her ships of war recognized by our Courts as national ships. We have, in former cases, had occasion to express our opinion on this point. The government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed...
Side 35 - ... from the posture of neutrality. All captures made by each must be considered as having the same validity, and all the immunities which may be claimed by. public ships in our ports, under the law of nations, must be considered as equally the right of each, and, as such, must be recognized by our courts of justice, until Congress shall prescribe a different rule. This is the doctrine heretofore asserted by this court, and we see no reason to depart from it.
Side 35 - The government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed her determination to remain neutral between the parties. Each party is therefore deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war.

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