divert it from its original purpose, or to impede its natural
progress to the very utmost limit of academical perfection.

CHAS. STEWART, President, U. S. Navy.
C. B. HADDUCK, Secretary, of N. Hampshire.
LEVI WHEATON, of Rhode Island.

G. TROOST, of Tennessee.

SAM'L ALEXANDER, of Pennsylvania.
JOHN L. Gow, of Pennsylvania.

DAVID HUNTER, of Illinois.

WM. RUGGLES, of the Dist. of Columbia.

ABM. EUSTIS, Brig. Gen. U. S. Army.
CHS. AUG. DAVIS, of N. York.
CHARLES DAVIES, of Connecticut.
J. H. PEYTON, of Virginia.

S. P. WILLIAMSON, of Tennessee.
HODIJAH MEADE, of Virginia.
O. M. MITCHELL, of Ohio.

April Weather.

A correspondent has sent us the following table of the heat in April, giving the average of three observations of the Thermometer, each day through the month, for 22 years from 1820 to 1841 inclusive:

[merged small][merged small][merged small][ocr errors][merged small][ocr errors][merged small][merged small][ocr errors][ocr errors][ocr errors][merged small][merged small][merged small][ocr errors][ocr errors][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][ocr errors][ocr errors][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small]
[blocks in formation]


[blocks in formation]

Capital stock paid in..

[blocks in formation]

$3,514,000 00 1,422,513 00

163,195 27

72,442 82

606,331 64

117,777 71

$5,896,260 44

232,461 52

193,443 23

95,626 76

35,105 95

365,973 48

4,973,649 50

Total amount of the resources of the banks. $5,896,260 44

Dividends, &c. &c.

Amount of last semi-annual dividend..

Debts due and considered as doubtful.

118,241 66

111,012 21

28,985 29

Amount of bills in circulation under five dolls. 270,755 00
Amount due from Presidents and Directors as

Amount due from President and Directors as

320,511 10

.... 305,611 34

Our citizens, yesterday morning, rendered their last honors Amount due from Stockholders as principals.. 335,325 38 to the earthly remains of their late friend and fellow-citizen, William Henry Harrison. The hearse which bore the body from the residence of Col. Taylor to the steamboat that conThe Supreme Court of New York has denied the appliveyed it to North Bend, was preceded by the company of cation of McLeod to be released without trial, and he has Dragoons, and the several military companies which arrived been remanded to prison. In our next Number we shall from the Louisville Encampment in time to join in the pro-publish the opinions of the Court. cession, and followed by relatives and personal friends of the deceased, by the Committee which had brought it from Washington, the Committee of Forty which had been appointed to make arrangements for the obsequies, the City Council, Officers and Soldiers of the Late War, Judges and Officers of the Superior and Common Pleas Courts, members of the Bar, Odd Fellows, Firemen, other Associations, and large numbers of citizens in an individual capacity.

The procession moved, to solemn music, from the residence of Col. Taylor to the steamboat Raritan, which lay at the foot of Main; and the pavements, and doors and windows of houses, for the whole of this distance, were crowded with persons, numbering doubtless from 18,000 to 20,000, who had assembled to have a last look, as it passed, of the coffin which inclosed the body of the venerated dead.

Violent and destructive hail-storms have been experienced lately in various sections of the United States.

The UNITED STATES COMMERCIAL AND STATISTICAL REGISTER, is published every Wednesday, at No. 76 Dock street. The price to subscribers is Five Dollars per annum, payable on the 1st of January of each year. No subscription received for less than a year.Subscribers out of the principal cities to pay in advance.

Where, and at 76 Dock St. Subscriptions will be received.








In the Matter of Alexander McLeod.

On Habeas Corpus, July Term, 1841.

Mr. JUSTICE COWEN delivered the opinion of the Court as follows:

The prisoner's petition, on which I allowed this writ, contained an intimation that his commitment to the jail of the county of Niagara had not been regular; but that ground is now abandoned. The sheriff returns an indictment for murder, found by a grand jury of that county against the prisoner, on which he appears to have been arraigned at the Court of Oyer and Terminer holden in the same courty. It further appears that he pleaded not guilty, and was duly committed for trial. The indictment charges, in the usual form, the murder of Amos Durfee by the prisoner, on a certain day, and at a certain town within the county.

These facts, although officially returned by the sheriff, were, by the provision in the habeas corpus act, 2 R. S. 471, 2d ed. 50, open to a denial by affidavit, or the allegation of any fact to show that the imprisonment or detention is unlawful. In such case the same section requires this Court to proceed in a summary way to hear allegations and proofs in support of the imprisonment or detention, and dispose of the party as the justice of the case may require. Under color of complying with this provision, which is of recent introduction, the prisoner not denying the jurisdiction of the court over the crime as charged in the indictment, or the regularity of the commitment, has interposed an affidavit stating certain extrinsic facts. One is, that he was absent and did not at all participate in the alleged offence; the other, that if present and acting, it was in the necessary defence or protection of his country against treasonable insurrection of which Durfee was acting in aid at the time.

Taking these facts to be mere matters of evidence upon the issue of not guilty, and, of themselves, they are clearly nothing more, I am of opinion that they cannot be made available on habeas corpus, even as an argument for letting the prisoner to bail, much less for ordering his unqualified discharge. That this would be so on all the authorities previous to the Revised Statutes, his counsel do not deny. The rule of the case is thus laid down in the British Books: A man charged with murder by the verdict of a coroner's inquest may be admitted to bail; though not after the finding of an indictment by the grand jury." 1 Chit. Cr. L. 129, Am. ed. of 1836. Petersd. on Bail. 521, S. P. It has never, that we are aware, been departed from in practice under the English habeas corpus act.

Lord Ch. Justice Raymond said, in Rex. v. Dalton, 2 Str. 911, that he would bail though a coroner's inquest had found the crime to be murder; and the distinction was between the coroner's inquest, where the court can look into the depositions, and an indictment where the evidence is secret. Lord Mahon's case, 1 Salk. 104, S. P. This reason is adopted by Chitty, at the page of his Cr. Law before cited; and by Petersd. on Bail, London ed. of 1835, p. 521. It was also recognised by Sutherland, J. of this court, in 1825. Tayler's case, 5 Cowen's Rep. 56. He says "the indictment must be taken as conclusive upon the degree of the crime," Id.

VOL. V.-5

[ocr errors]

No. 3.

The depositions heretofore taken in the cause being thus cut off, there are no means of inquiry left to us on this motion, by which we can say whether a murder was in fact committed, or whether the charge would probably be mitigated on the trial to a very doubtful case of manslaughter, or to a homicide in defence, or whether all participation might be disproved by showing a clear alibi. Nothing is better settled, on English authority, than that on habeas corpus, the examination as to guilt or innocence cannot under any circumstances extend beyond the depositions or proofs upon which the prisoner was committed.

This would be so, even on habeas corpus before an indictment found, however loosely the charge might be expressed in the warrant of commitment. Chitty, at the page before cited, says, “It is in fact to the depositions alone that the court will look for their direction; where a felony is positively charged, they will refuse to bail though an alibi be supported by the strongest evidence." He cites Rex v. Greenwood 2 Str. 1138, a case of robbery, and eight credible witnesses making affidavit that the prisoner was at another place at the time when the robbery was sworn to have been committed; yet adds the report, the court refused to admit him to bail, but ordered him to remain till the assizes. Here the crime is clearly proved by the depositions which have been read on the side of the people, while, instead of eight witnesses to an alibi, we have the solitary affidavit of the prisoner.

In Rex v. Acton 2. Str. 851, the prisoner had been tried for the murder and acquitted; afterwards a single Justice of the Peace, issued a warrant charging him with the same murder, upon which he was again committed. On an offer to show the former acquittal in the clearest manner, the court refused to hear the proof. On the authority of this case, Mr. Chitty, at the page just cited, lays down the rule that the court will not look into extrinsic evidence at all. He states a case wherein the same question came up in respect to an inferior crime; receiving stolen goods with a guilty knowledge. The prisoner's affidavit denied his knowledge; yet the court refused to bail, saying the fact of knowledge was triable by a jury only.

They, added, it would be of dangerous consequence to allow such proceedings, as it might induce prisoners generally to lay their case before the court. Page before cited, Petersd. on bail, refers to Chitty, who cites cases K. B. 96. This book, co nomine, does not appear now to be extant; and 12 Mod. the only reference I am aware of which among the English quotations, is synonymous with Chitty's does not appear to contain the case stated by him. But it accords with many others in circumstance; and the reason given is almost too plain to demand any direct authority. To hear defensive matter through ex parte affidavits as a ground for bailing the prisoner, would be to trench on the office of the jury; for in the case of high crimes, bail would be equivalent to an acquittal.

Accordingly, the rule as laid down in Horner's case, 1 Leach, 270, 4th ed. London 1815, is in effect the same with that stated by Chitty. The prisoner had been committed under a charge of defrauding and robbing a man of his money by false pretences. It was insisted that the facts stated in the depositions for the king, made out a mere misdemeanor; and that the prisoner was therefore entitled to bail. But the transaction by which the money was obtained admitted of one construction which migh tmake it a felonious taking.

The court said, "In cases of this kind the course has always been to leave it to the jury to determine quo animo the money was obtained. In such a case the court never form any judgment whether the facts amount to a felony or not; but merely, whether enough is charged to justify the detainer of the prisoner; and put him upon his trial."

The cases I have noticed, were, in several respects, stronger for the prisoners, than the case before us. They were mostly founded on charges of a character much less serious than murder. They were all before indictment found; some of them presented a state of things on which it was plainly impossible to convict; and last, though not least, they were inere applications for bail, a thing which McLeod does not ask for. He demands an absolute discharge, on grounds upon which, according to the laws of England, he would not even be entitled to bail. The laws of England formed in this respect the law of New York, until our new Habcas Corpus act took effect.

It becomes necessary next to inquire whether the new statute has worked any enlargement of our powers beyond what we have seen they were up to the time when it passed. The 2 R. S. 469, 2d ed. § 40, 41, requires us to examine the facts contained in the return, and into the cause of the confinement of the prisoner; and if no legal cause be shown for it, or for its continuation, we are to discharge him. That here is legal cause, viz. an indictment for murder, and an order for commitment, we have seen is denied. By the 45th section p. 470, if it appear that the party has been legally committed for any criminal offence, we are required to let him to bail, if the case be bailable. But so far we have no direction as to what case shall be considered bailable. We are left under the restraints which I have noticed as existing before the statute. Not one of them is removed by it.

Then comes section 50, p. 471, which is relied on by the prisoner's counsel. I briefly noticed this in proposing the question to be considered. But the prisoner is entitled to the benefit of it entire. The words are, that "the party brought before such Court or officer, on the return of any writ of Habeas Corpus, may deny any of the material facts set forth in the return, or allege any fact to show either that his imprisonment or detention is unlawful, or that he is entitled to his discharge, which allegations or denials shall be on oath; and thereupon such Court or officer shall procced in a summary way, to hear such allegations and proofs as may be produced in support of such imprisonment or detention, or against the same, and to dispose of such party as the justice of the case may require. Under this statute, the prisoner's counsel claim the right of going behind the indictment, and proving that he is not guilty by affidavit, as he may by oral testimony before the jury.

We have already shown the absurdity of such a proposition in practice, and its consequent repudiation by the English Criminal Courts. And we were not disposed to admit its adoption by our Legislature, without clear words or necessary construction.

We think its object entirely plain without a resort to the rules of construction. Its words are satisfied, by being limited to the lawfulness of the authority under which the prisoner is detained, without being extended to the force of the evidence upon which the authority was exerted, or which it may be in the prisoner's power to adduce at the trial. This, if necessary, is rendered still more plain by considering the evil which the statute was intended to remedy.

At common law, it was doubtful whether the prisoner could question the truth of the return, or overcome it by showing extrinsic matter, upon the point of the authority to imprison. The statute was passed to obviate the oppression which might sometimes arise from the necessity of holding a return to be final and conclusive, which is false, in fact, or, if true, depending for its validity on the act of a magistrate or Court which can be shown by proofs allowed to have been destitute of jurisdiction. Watson's case, 9 Adolph. and Ellis, 731. 3 R. S. 784, 5, 2d. ed. App. note.

An innocent man may be, and sometimes is unfortunately imprisoned. Yet his imprisonment is no less lawful than if he were guilty. He must await his trial before a jury. There are various cases in which the enactment, allowing

proof extrinsic to the return, may have effect without supposing it applicable here. It must, I apprehend, for the most part, apply to cases where the original commitment was lawful; but in consequence of the happening of some subse quent event, the party has become entitled to his discharge as if he be committed till he pay a fine, which he has paid accordingly, and the return states the commitment only; so after conviction he may allege a pardon, or that the judgment under which he was imprisoned has been reversed. Nor is it necessary to inquire how far we might be entitled to go, were the prisoner in custody on the mere examination and warrant of a committing magistrate.

But it is said we have power to direct the entry of a nolle prosequi, and it is our duty to look into the merits of the case with a view to decide whether it be a proper one for the exercise of that power. This proposition is also put upon a new section of the revised statutes, which most clearly gives no color for the suggestion. At common law the Attorney General alone possessed this power; and might, under such precautions as he felt it his duty to adopt, discontinue a criminal prosecution in that form at any time before verdict. The power and practice under it are laid down in 1 Chit. Cr. Law, 478, ed. before cited. It probably remains unimpaired in the Attorney General to this day; and it has been by several statutes delegated to District attorneys, who now represent the Attorney General in nearly everything pertaining to indictments and other criminal proceedings local to their respective counties.

The Legislature finding the power in so many hands, and fearing its abuse, by the 2 R. S. 609, 2d. ed. § 54, provided that it should not thereafter be lawful for any District Attorney to enter a nolle prosequi upon any indictment, or in any other way discontinue or abandon the same without leave of the court having jurisdiction to try the offence charged. This provision, the prisoner's counsel contended, so enlarged our powers that we might arbitrarily interfere on the prisoner's affidavit and other proofs verifying his innocence or even on grounds of national policy as where the prosecution would be likely to affect our foreign relations unfavorably; and that too in despite of the Attorney General and district Attorney. Conceded as it was, that before the Revised Statutes we had no power to give such direction, the argument seeks to draw from the statute giving us a veto against the nolle prosequi a positive power to compel its entry. Even if we had such power, the argument would be quite extraordinary. It demands that we should finally dispose of an indictment for murder, on the sort of evidence by which we are guided upon a motion to set aside a default or change a venue. In any view this question belongs primarily to the Executive Department of the Government.

I shall have occasion to inquire hereafter whether these views should not be regarded as a final answer to this application. That will depend on the question whether facts stated on the part of the prisoner, supposing them to be admissible at all, are proper for the consideration of the juryonly; or whether, as counsel have insisted with great zeal, they are such as to divest our Criminal Courts of all jurisdiction either over the subject matter or person of the prisoner. We should, as we thought at the close of the argument, have felt ourselves entirely satisfied to dispose of the case on the first question, without looking any farther into the nature of the transaction out of which this indictment has arisen. But, as counsel made the question of jurisdiction their main topic, we preferred to reserve the case, and have looked into it as far as possible during a very short vacation, consistently with other pressing judicial avocations.

Want of jurisdiction has not been put on the ground that McLeod was a foreigner. An alien, in whatever manner he may have entered our territory, is, if he commit a crime while here, amenable to our criminal law. Lord Mansfield, in Campbell v. Hall, Cowp. 208. Vattel, B. 2. ch. 8, §101-2. Story's Confl. of L. 518, 2d ed. Nay, says Locke, though he was an East Indian, and never heard of our laws. On Civ. Gov. B. 2, ch. 2. § 9.

But it is said his case belongs exclusively to the forum of nations, by which counsel mean the diplomatic power of the United States, and England, or in the event of their disa

greement, the battle-field. I have already admitted that counsel may, under the 50th section of the Habeas Corpus act, allege and prove a want of jurisdiction. To show this the affidavit of McLeod is produced, from which the inference is sought to be raised that the Niagara frontier was in a state of war against the contiguous province of Upper Canada; that the homicide was committed by McLeod, if at all, as one of a military invading expedition, set on foot by the Canadian authorities to destroy the boat Caroline; that he was a British subject; that the expedition crossed our boundary, sought the Caroline at her moorings in Schlosser, and there set fire to and burned her, and killed Durfee, one of our citizens, as it is lawful to do in the time of war.

We need not stay to examine the conclusion, viz: a want of jurisdiction, if the premises be untrue. To warrant the destruction of property or the taking of life on the ground of public war, it must be what is called lawful war, by the law of nations, a thing which can never exist without the actual concurrence of the war-making power. This on the part of the United States is Congress : on the part of England the Queen. A state of peace and the continuance of treaties must be presumed by all courts of justice till the contrary be shown; and this is a presumptio juris et de jure, until the national power of the country in which such courts sit, officially declares the contrary. A learned English writer on the Law of Nations makes this remark. (1 Ward's L. of Nations, 294.) Although I am aware that there is a great authority for the contrary opinion, yet it is upon the whole settled that no private hostilities, however general, or however just, will constitute what is called a legitimate and public state of war."

[ocr errors]

So far indeed has my Lord Coke carried this point, that if all the subjects of the King of England were to make war with another country in league with it, but without the assent of the King, there still would be no breach of the league between the two countries." 1 Bl. Com. 267, S. P. Again, in Blackburne v. Thompson 15 East. 81-90. Lord Ellenborough, Ch. J., delivering the opinion of the court of King's Bench, said, "I agree with the Master of the Rolls in the case of the Pelican, (1 Ed. Adm. Append. D.) that it belongs to the government of the country to determine in what relation of peace or war any other country stands towards it; and that it would be unsafe for courts of justice to take upon them without that authority, to decide upon those relations. But when the crown has decided upon the relation of peace or war in which another country stands to this, there is an end of the question." 3 Camp. 66, 7 S. C. and S. P.

So far were the two governments of England and the United States from being in a state of war when the Caroline was destroyed, that both were struggling to avoid such a turn of the excitement then prevailing on the frontier, as might furnish the least occasion for war. Both had long maintained the relations of national amity; and have done so ever since under an actual treaty. So far from England fitting out a warlike expedition against the United States or any public body, she utterly disavows any such object; while on our side we have inflicted legal punishment on the leaders of the expedition of which Durfee made a part, on the ground that England was then at peace with us. Whatever hostile acts she did were aimed exclusively at private offenders; and if there was a war in any sense, the parties were England on one side and her rebel subjects aided by certain citizens of our own, acting in their private capacities and contrary to the wishes of this government, on the other.

such. I deny that public war in this sense can be made out by affidavit or by any other medium of proof than the denunciation of war by one or both of the two nations who are parties to it.

There are but three sorts of war, public, private, and mixed. Grot. B. 1, ch. 3, § 1. Private war is unknown in civil society, except where it is lawfully exerted by way of defence between private persons. To constitute a public war, at least two nations are essential parties, in their corporate capacities. Mixed war can be carried on only between a nation on one side and private individuals on the other.There is no fourth kind. Grot. ut Supra.

The right of one nation, or any of its citizens, to invade another, or enter on it and do any harm to its property or citizens, does not arise till public war be lawfully denounced in some form. It does not arise where one nation has a quarrel with private persons being within the territory of another. Whether there be any exception to this rule, I shall hereafter inquire.

Much was said in argument on the assumption that the state of hostilities on the frontier amounted to unsolemn war. In supposing this to be so, counsel came back to the very error which they repudiated in more general terms." A war is none the less public or national because it is unsolemn. All national wars are of two kinds, and two only; war by public declaration, or war denounced without such declaration. The first is called solemn or perfect war, because it is general, extending to all the inhabitants of both nations. In its legal consequences it sanctions indiscrimi nate hostility on both sides, whether by way of invasion or defence. The second is called unsolemn or imperfect war, simply because it is not made upon general, but special declaration. The ordinary instance is a commission of reprisal limiting the action of the nation plaintiff, to particular objects and purposes against the nation defendant.

It supposes a partial grievance, which can be redressed by a corresponding remedy or action; and does not authorize hostility beyond the scope of the special authority conferred. Such are several of the instances I have just now mentioned. But they are no less instances of public war. The attack on Copenhagen was mentioned on the argument as an instance of unsolemn war. So indeed it was. The British Admiral had a deputation from the war-making power of England to act against the war-making power of Denmark; to demand the surrender of the Danish fleet, and, on refusal, to destroy public or private property, or take life, not as a punishment of private offenders, but to coerce the nation.Why was the attack made? Because Denmark would not surrender her navy voluntarily; and there was danger that France would take it either by force or under collusion on the side of Denmark.

Those who were in arms on the side of Denmark, acted not in their own right, but as agents of the nation to which they were subject. Before the remotest analogy can be seen in this to the case at the bar, the United States must be brought in and made defendant in their corporate capacity. It will be seen, I trust, by this time, that the instance derogates not in the least from the distinction that runs through all the writers on the international law, viz: that whether to constitute solemn or unsolemn war, the authority to act must emanate from the war-making power on one side, and be intended to influence that power on the other. Action under such a power is necessarily a collision between two nations: and answers to Grotius definition, viz: "That is a public war which is made on each side by the authority of the civil power. B. 1 ch. 3, § 1. At § 4, he divides this sort of war into solemn and unsolemn, of which latter he gives an instance B. 3 ch. 2, § 2, N. 3. Vid. also 2 Ruth. p. 507 and 548.

In speaking of public war, I mean to include all national wars, whether general or partial, whether publicly declared or carried on by commissions, such as letters of marque, military orders, or any other authority emanating from the executive power of one country and directed against the power of another; whether the directions relate to reprisals," the sieges of towns, the capture or destruction of private or public ships, or the persons or property of private men belonging to the adverse nation. I mean to exclude all hostility of any kind not having for its avowed object the exercise of some influence or control over the adverse nation as

The distinction has been followed to this day, though the legal character of unsolemn war has since been changed.— Both," says Rutherforth," are now lawful. The only real effect of a declaration of war is, that it makes the war a general one; whilst the imperfect sorts of war," such as reprisals, or acts of hostility, are partial or are confined to particular persons or things, or places. In solemn wars all the members of one nation act against the other under a ge

neral commission; whereas in public wars which are not solemn, those members of one nation who act against the other, act under particular commissions." Ruth. b. 2, ch. 9. § 18. Vattel, b. 3, ch. 15.

Both sorts of war are lawful, because carried on under the authority of a power having, by the law of nations, a right to institute them. In any other war no belligerent rights can be acquired. All captures, all destruction of property, must be illegal; and the taking of life a crime. Short of this, war cannot be carried into an enemy's country, for the simple reason that there is no war to carry there, and no enemy against whom it can be exerted. The nation denouncing war must be explicit. "This makes it," says Vattel, formal, and so lawful." "But nothing of this kind," says he," is the case in an informal, illegitimate war, which is more properly called depredation. A nation attacked by enemies, without the sanction of a public war, is not under any obligation to observe towards them the rules of formal warfare. She may treat them as robbers." Vattel, B. 3. ch. 4, § 68. "Such unauthorized volunteers in violence," says Blackstone, are not ranked among open enemies; but are treated like pirates and robbers."

[ocr errors]


sued and arrested, or killed, the act would be a naked usurpation of authority, like the sheriff of one county going into another to execute process. "If," says Rutherford, b. 2, ch. 9, sec. 9, "the magistrate, in any instance, use even the force with which he is entrusted in any other manner, or for any other purpose than is warranted by his appointment, this, as it is his own act, and not the act of the public, cannot be called a public war."

Sensible that all pretence of belligerent right was wanting, it is therefore, in the first view, a lawful act of magistracy, that the case was sought to be put by Mr. Fox, both in his letter to Mr. Forsyth and Mr. Webster. I take the words of his last letter, written after the question had been deliberately considered by his government :-"The grounds upon which the British Government make this demand" (the surrender of McLeod,) are these: "that the transaction on account of which Mr. 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 authority, 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 It was accordingly conceded, in argument, that the Cana- subjects: and that consequently, these subjects of Her Madian provincial authorities had no inherent power to in-jesty who engaged in that transaction were performing an stitute a public war. Vid. 2, Ruth. 496-7-8. We were, act of public duty, for which they cannot be made personhowever, referred to Burlem. Pt. 4. ch. 3, § 18-19, to show ally and individually answerable to the laws and tribunals that those authorities might do so on the presumption that of any foreign country." In the same letter he re-states the their sovereign would approve the step; and that such ap- opinion of his government that "it was a justifiable emprobation would reflect back, and render the war lawful from ployment of force for the purpose of defending the British the beginning. On the assumption that this indirect mode territory from the unprovoked attack of a band of British of instituting war had actually been resorted to, counsel rebels and American pirates." again bring themselves back to the fundamental error which led to this application. No one would deny that if the affair in question can be tortured into war between this nation and England, the United States might take possession of McLeod as a prisoner of war. In such a case, there would have been no need of this motion. But admitting the rule of Burlemaqui, and that counsel might, by the aid of England, get up an ex post capto war for the benefit of McLeod, this cannot be done by an equivoque; and especially in contradiction to the language of England herself.

Neither the provincial authorities nor the sovereign power of either country, have, to this day, characterized the transaction as a public war, actual or constructive. They never thought of its being one or the other. Both have spoken of it as a transaction public on one side, to be sure, but both claimed to hold fast the relations of peace. Counsel seem to have taken it for granted that a nation can do no public forcible wrong without its being at war, even though it deny all action as a belligerent. At this rate, every illegal order to search a ship, or enter on a disputed territory, or for the recaption of national property, even from an individual if either be done vi et armis, and work wrong to another nation or any of its subjects, would be public war, necessarily so, though the actor should deny all purpose of war. Were such a rule once admitted, England and the United States can scarcely be said to have been at peace since the Revolution which made them two nations. My endeavor has been to show on the question of war or peace, there is a quo animo of nations, by which we are bound.

To prevent all misunderstanding in the progress of the argument, it is proper to observe farther, that an act of jurisdiction exerted by inferior magistrates civil or military, for the arrest or punishment of individuals, is not public war of either kind. So long as the act is kept within legal compass, though its exertion be violent, where for instance the object is to suppress a riot, quell an insurrection, or repel the hostile incursions of individuals, it is, though sustained by a soldiery in arms, only one mode of enforcing the criminal law. It is like calling out the militia as a posse comitatus to aid a sheriff who is resisted in the execution of process. Force becomes lawful where the laws are set at defiance.We see this in the frequent resort to soldiers of the regular army by the English, in cases of dangerous riots. Vid. Ruth. B. 2, ch. 9, sec. 9. Such a state of things, there, confers, no right to act offensively against individuals who reside or sojourn in the neighboring territory. Should they be pur

If this view of the transaction can be sustained, it was lawful ab initio. It required the Royal recognition to render it national. It came within the power which the Canadian authorities held from England to act in her place and stead. So long as they confined themselves within the territorial line of Canada, they were doing no more than the nature of their connexion with England required; sustaining that absolute and exclusive jurisdiction to which she is entitled with every other nation. Whether they had power, without pretence of being engaged in a war with the United States, or could derive power from England, to fit out an expedition, cross the line, and seize or destroy the property and persons of our citizens in this country, and whether any one acting under such an assumption of power, can be protected, is quite a different question.

One decisive test would be furnished by admitting that Durfee had committed a crime against England, for which he was liable to arrest and trial in Canada. None would pretend that any warrant from the English nation could be used to protect one of her officers from an action of false imprisonment, if he had merely arrested the offender on this side of the line. No one would pretend that a military order and the addition of the Queen's soldiers and sailors would, in such case, strengthen a plea of justification; nor would the subsequent approval of the nation.

This would have no greater effect than the original authority; accordingly it was not pretended on the argument that England had any right whatever to send and arrest Durfee as a fugitive from justice. The pretence that she had any such right would have been too absurd to bear the name of argument. Nor is it pretended that her magistrates, civil or military, had any power within our territory to seize and bind him over to keep the peace towards England or her subjects. "We cannot," says Vattel, b. 2, ch. 7, § 93. "enter the territory of a nation in pursuit of a criminal, and take him from thence.

"This is what is called a violation of territory; and there is nothing more generally acknowledged as an injury that ought to be repelled by every State that would not suffer itself to be oppressed."

The rule is too familiar, even as between the States of this confederacy, to require that it should be insisted on at large.

But the civil war which England was prosecuting against various individuals, was insisted on as a ground of protection; and I am free to admit that the strongest possible color

« ForrigeFortsett »