for the extraordinary right claimed, is to be derived from taking the United States to stand in the attitude of a neutral nation with respect to two parties engaged in actual war; England on one side, and Van Rensselaer, Durfee and their associated assailants on the other. This is what Grotius calls mixed war, being, as he says, "that which is made on one side by public authority, and on the other by mere private persons." B. 1, ch. 13, § 1. Rutherford retains the same distinction under the same name, in characterizing a contest between a nation as such, and its external enemies, coming in the form of pirates or robbers; associates, he says, who act together occasionally and are not united into civil society. Ruth. b. 2 ch. 9, § 9.

imposed by itself; any restrictions derived from an external source would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction." That these are not rules of yesterday; but have formed a part of the acknowledged law of nations for nearly two thousand years, may be seen in Grotius, b. 3, ch. 4, § 8, N. 2. He says we may not kill or hurt an enemy in a country at peace with us. "And this proceeds not from any privilege attached to their persons; but from the right of that prince in whose domains they are. For all civil societies may ordain that no violence be offered to any one in their territories but by a proceeding in a judicial way, as we have proved out of Euripides.

The several invasions of England by Perkin, Warbeck and Lord Herise, mentioned in 1 Hal. P. C. 164, the former "If you can charge these guests with an offence, do it, of which is also noticed in Calvin's case, 7 Co. Rep. 11-12, by law, forbear all violence." But in courts of justice the are instances of such a war; the books saying that in Eng- merit of the person is considered, and this promiscuous purland such offenders must be tried by martial law, for a rea-pose of hurting each other ceases. Livy relates that seven son which I shall hereafter consider. Let Durfee, then, be Carthaginian Galleys rode into a port belonging to Syphax, regarded as England's enemy, who has, with Wells, the boat who, at that time, was at peace both with the Carthagenians owner and his boat, taken shelter in the neutral territory of and Romans; and that Scipio came that way with two Galthe United States. Had England any right to follow him leys. These might have been seized by the Carthagenians, there? None, say the books, not even in the heat of contest, before they had entered the port, but being forced by a strong had he been an enemy pursued and flying for shelter across wind into the harbor, before the Carthagenians could weigh the line. 1Kent's Com. 119-20. Independently of fresh anchor, they durst not assault them in the King's haven.pursuit, no writer on the law of nations ever ventured the Several more modern instances of a like character are stated assertion that one or two belligerents can lawfully do any by Molloy de Jur. Mar. b. 1, ch. 1, § 16. It is said to be a hostile act against another, upon neutral ground. rule of the modern law of nations, that not only must the parties refrain fram hostilities while in a neutral port; but should one set sail, the other must not, till 24 hours after.Marcus' L. of Nations, b. 8, ch. 6, note. And a doctrine about as strong was laid down by Sir William Scott, in the case of the Twee Gebroeders, 3 Rob. Adm. Rep. 162.

If it be not a plain deduction from common sense, yet on principles in which publicists agree, all rightful power to harm the person or property of any one dropped from the hands of McLeod and his associates the moment they entered a country with which their sovereign was at peace. No exception can be made consistently with national safety. Make it in favor of the subordinate civil authorities of a neighboring state, and your territory is open to its constables; in favor of their military, you let in its soldiery; in favor of its sovereign, and you are a slave. Allow him to talk of the acts and machinations of our citizens, and send over his soldiers on the principle of protection, to burn the property or take the lives of the supposed offenders, and you give up to the midnight assault of exasperated strangers the dwelling and life of every inhabitant on the frontier, whom they may suspect of a disposition to aid their enemies. Never, since the treaty of 1783, had England, in time of peace with us, any more right to attack an enemy at Schlosser, than would the French have at London in time of peace with England. "The full domain,” says Vattel," is necessarily a peculiar and executive right. The general domain of a nation is full and absolute; since there exists no authority upon earth by which it can be limited; it therefore excludes all right on the part of foreigners." B. 2. ch. 7, § 79. The same writer defines the jurisdiction of courts within that domain. "The sovereignty united to the domain, establishes the jurisdiction of the nation in her territories. It is her province to exercise justice in all places under her jurisdiction; to take cognizance of the crimes committed, and the differences that arise in the country." Id. § 84. "It is unlawful," says the same writer, "to attack an enemy in a neutral country, or to commit in it any other act of hostility." A mere claim of territory," says Sir William Scott, a British judge of admiralty, "is undoubtedly very high, when the fact is established it overrules every other consideration." In the Vrow, Anna Catharine, 5 Rob. Adm. Rep. 20-1. And he refused to recognize a right of capturing an enemy's ship within a marine league of our coast. The Anna La Porte, id. 332. "We only exercise the rights of war in our own territory," says Bynkershock," or in the enemy's or in a territory which belongs to no one.-Quest. Jur. Pub. b 1, ch. 8.

"There is no exception," says Chancellor Kent, " to the rule that every voluntary entrance into neutral territory with hostile purposes is absolutely unlawful." 1 Kent's Com. 118, 4th ed. "The jurisdiction of courts," says Marshall Ch. J.," is a branch of that which is possessed by the nation as an independent sovereign power. The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not

To apply these authorities: The affidavit of McLeod suggests that Durfee had, on the day before he was killed, aided in transporting military stores to Navy Island, and surmises that he intended to continue the practice. I put it again that the war, if any, was by England against him and his I again ask, had she to pursue him into a territory at peace? associates-not against the United States. But what right, That she had none I have shown from her own judge sitting in the forum of nations, from one of our judges sitting in the like forum, from authoritative publicists, and from all antiquity. I have shown that even punic faith felt itself bound to let an enemy go free whom it accidentally met on neutral ground. Within the territory of a nation at peace, all have passed from the dominion of arms to that of law. "No belligerent power, all belligerent right, is paralyzed. They violence can be offered," says Grotius," but you must proceed in a judicial way." which Durfee had committed, was in setting on foot a hosThe only offence against our law tile expedition against England, with whom we were at peace.

So far I admit he was guilty according to the suggestion in McLeod's affidavit. He had made himself a principal in the aggression of McKenzie and others; for there are no accessories in misdemeanor. The courts were open.Why did not England prefer her complaint? Was it competent for her to allege that our justice was too mild or too tardy, and therefore substitute the fire brand and musket?— To admit such a right of interference on any ground or in any way, says Marshall, would be a proportional diminu tion of our own sovereignty, of which judical power makes a part. "The Law of Nations," says Rutherford, "is not the only measure of what is right or wrong in the intercourse of nations with each other. Every nation has a right to determine by positive law upon what occasions, for what purposes, and in what numbers, foreigners shall be allowed to come within its territories. Ruth. b. 2, ch. 9, § 6; Vattel, b. 2, ch. 7, § 94.

It follows from the authorities cited, that a right to carry on mixed war never extends into the territory of a nation at peace. It can be exercised on the high seas only, or in a territory which is vacant and belonging to nobody. It is in modern law confined mainly to the case of pirates. But even these cannot be arrested in the territory of a foreign na

tion at peace with the sovereign of the arresting ship. Molloy de Jur. Mar. b. 1, ch. 1, 1 6.

Admitting then that England might protect a man against our jurisdiction by saying he did a public act under her authority, does it not behoove her at least to show that she was acting within the limits of her own jurisdiction, especially where she has prescribed them to herself? Shall her declaration serve to deprive us of power where she is exceeding her own? And this brings one to inquire whether the transaction in question be such as any national right so far examined can sanction. She puts herself, as we have seen, on the law of defence and necessity; and nothing is better defined nor more familiar in any system of jurisprudence, than the juncture of circumstances which can alone tolerate the action of that law. A force which the defended has a right to resist must itself be within striking distance. It must be menacing, and apparently able to inflict physical injury unless prevented by the resistance which he opposes. The rights of self-defence and the defence of others standing in certain relations to the defender, depend on the same ground, at least they are limited by the same principle.


It will be sufficient, therefore, to inquire of the right so far as it is strictly personal. All writers concur in the language of Blackstone, (3 Com. 4,) that, to warrant its exertion at all, the defender must be forcibly assaulted. He may then repel force by force, because he cannot say to what length of rapine or cruelty the outrage may be carried, unless it were admissible to oppose one violence with another. But," he adds, "care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become the aggressor.The condition upon which the right is thus placed, and the limits to which its exercise is confined by this eminent writer, is enough of itself, when compared with McLeod's affidavit, to destroy all color for saying the case is within that condition.

The Caroline was not in the act of making an assault on the Canada shore; she was not in a condition to make one; she had returned from her visit to Navy Island, and was moored in our own waters for the night. Instead of meeting her at the line and repelling force by force, the prisoner and his associates came out under orders to seek her wherever they could find her, and were in fact obliged to sail half the width of the Niagara river, after they had entered our territory, in order to reach the boat. They were the assailants: and their attack might have been legally repelled by Durfee even to the destruction of their lives. The case made by the affidavit is in principle this: a man believes that his neighbor is preparing to do him a personal injury. He goes half a mile to his house, breaks the door and kills him in his bed at midnight.

On being arraigned, he cites the law of nature; and tells us that he was attacked by his neighbor, and slew him on the principle of mere defence and prevention; or, in the language of the plea, for an assault demesne; "he made an assault upon me, and would then and there have beat me, had I not immediately defended myself against him, wherefore I did then and there defend myself as I lawfully might for the cause aforesaid; and in doing so did necessarily and unavoidably beat him, doing him on such occasion no unnecessary damage. And if any damage happened, it was occasioned by his assault and my necessary defence."

[ocr errors]

To excuse homicide in self defence," says another English writer, "the act must not be premeditated. He must first retreat as far as he safely can, to avoid the violence threatened by the party whom he is obliged to kill. The retreat must be with an honest intention to escape; and he must flee as far as he conveniently can by reason of some impediment, or as far as the fierceness of his assault will permit him, and then in his defence, he may kill his adversary." 1 Russ. on Cr. 544.

Such is the law of mixed war, on neutral ground. The books cited are treating of no narrow technical rule peculiar to the common law; but the law of nature and of nations, the same every where, of such paramount price as no municipal or international law could ever overcome; and intelligible to every living soul! It is easily applied both as be

tween individuals in civil society and nations at peace. Passing the boundaries of strict not fancied necessity, the remedy lies in suit by the State or citizen whose rights have been violated, or by demanding the person of the mischievous fugitive who has broken the criminal law of a foreign sovereign. Accordingly, Pufendorf, after considering the rights of private war in a state of nature, adds: " But we must by no means allow an equal liberty to the members of civil States. For here, if the adversary be a foreigner, we may resist and repel him any way at the instant when he comes violently upon us. But we cannot without the sovereign's command, either assault him whilst his mischief is only in machination, or revenge ourselves upon him after he has performed the injury against us." Puf. b. 2, ch. 5, § 7.— The sovereign's command must, as we have seen, in order to warrant such conduct in his subject, be a denunciation of war.

England, then, could legally impart no protection to her subjects concerned in the destruction of the Caroline, either as a party to any war, to any act of public jurisdiction exercised by way of defence, or sending her servants into a territory at peace. That her act was one of mere arbitrary usurpation, was not denied on the argument; nor has this, that I am aware, been denied by any one except England herself. I should not, therefore, have examined the nature of the transaction to any considerable extent, had it not been necessary to see whether it was of a character belonging to the law of war or peace. I am entirely satisfied it belongs to the latter: that there is nothing in the case except a body of men, without color of authority, bearing muskets and doing the deed of arson and death; that it is impossible even for diplomatic ingenuity to make it a case of legitimate war, or that it can plausibly claim to come within any law of war, public, private or mixed. Even the British Minister is too just to call it war; the British Government do not pretend it was


The result is that the fitting out of the expedition was an unwarrantable act of jurisdiction exercised by the provincial government of Canada over our own citizens. The movements of the boat had been watched by the Canadian authorities from the opposite shore. She had been seen to visit Navy Island the day before. Those anthorities, being convinced of her delinquency, sentenced her to be burned; an act which all concerned knew would seriously endanger the lives of our citizens. The sentence was, therefore, equivalent to a judgment of death; and a body of soldiers were sent to do the office of executioners.

Looking at the case independently of British power, no one could hesitate in assigning the proper character to such a transaction. The parties concerned having acted entirely beyond their territorial or magisterial power, are treated by the law as individuals proceeding on their own responsibility. If they have burned, it is arson; if a man has been killed, it is murder.

This brings us to the great question in the cause. We have seen that a capital offence was committed within our territory in time of peace; and the remaining inquiry is whether England has placed the offenders above the law and beyond our jurisdiction, by ratifying and approving such a crime. It is due to her in the first place, to deny that it has been so ratified and approved. She has approved a public act of legitimate defence, only. She cannot change the nature of things. She cannot turn that into lawful war which was murder in time of peace. She may, in that way, justify the offender as between him and his own government. She cannot bind foreign courts of justice by insisting that what in the eye of the whole world was a deliberate and prepared attack, must be protected by the law of self-defence.

In the second place, I deny that she can in time of peace, send her men into our territory, and render them impervious to our laws by embodying them and putting arms in their hands. She may declare war if she claim the benefit of peace, as both nations have done in this instance, the moment any of her citizens enter our territory, they are as completely obnoxious to punishment by our laws, as if they had been born and always resided in this country.

I will not, therefore, dispute the construction which coun

sel put upon the language or the acts of England. To test the law of the transaction, I will concede that she had by act of Parliament conferred all the power which can be contended for in behalf of the Canadian authorities, as far as she could do so. That, reciting the danger from piratical steamboats, she had authorized any colonel of her army or militia, on suspecting that a boat lying in our waters intended illegally to assault the Canada shore, to send a file of soldiers in the day or night time, burn the boat and destroy the lives of the crew. That such a statute should be executed; but that one of the soldiers failing to make his escape should be arrested, and plead the act of Parliament. Such an act would operate well, I admit, at Chippewa, and until the men had reached the thread of the Niagara river. It would be an impenetrable shield till they should cross the line of that country where Parliament have jurisdiction. Beyond, I need not say it must be considered as waste paper. Even a subsequent statute ratifying and approving the original authority could add nothing to the protection proffered by the first. It would be but the junction of two nullities. says Mr. Locke, (on Gov. B. 2, ch. 19, § 239,) of a king even in his own dominions: "In whatsoever he has no authority there he is no king, and may be resisted; for wheresoever the authority ceases, the king ceases too, and becomes like other men who have no authority." I shall not cite books to show that the Queen of England has no authority in this State in a time of peace.


I will suppose a stronger case; that England being at war with France, should by statute or by order of the queen, authorize her soldiery to enter our territory and make war upon such French residents as might be plotting any mischief against her. Could one of her soldiers, indicted for the murder of a French citizen, plead such a statute or order in bar? If he could not as a stanger and sojourner in our land, I need not inquire whether the same measures of protection be due to Durfee our fellow-citizen.

[ocr errors]

"The laws of no nation," says Mr. Justice Story, can justly extend beyond its own territories except so far as regards its own citizens. They can have no force to control the sovereignty or rights of any other nation within its own jurisdiction. It would be monstrous to suppose that our revenue officers were authorized to enter into any foreign ports and territories for the purpose of seizing vessels which had offended against our laws." The Appollon, 9 Wheat. Rep. 362, 371. He has examined the question at large in his book on the conflict of laws, ch. 2, § 17 to 22, p. 19 of 2d. ed. The result is that no nation is found to respect the laws or executive acts of any foreign government intended to control or protect its citizens while temporarily or permanently out of their own country, until it first declare war. Its citizens are then subject to the laws of war. Till that comes, they are absolutely bound by the laws of peace. While this prevails, a foreign executive declaration saying, "My subject has offended against your criminal laws. I avow this act. Punish me; but impute nothing to him," is a nullity.

As well might a nation send a company of soldiers to contract debts here, and forbid them to be sued, saying, "The debt was on my account, discharge my men, and charge it over against me!" Indeed it was urged on the argument that the letter of Mr. Fox had taken away the remedy of Wells the boat owner, by an action of trespass against McLeod for burning the boat. This action having it seems been settled, counsel resorted to it as an illustrative case. Another action brought against him for shooting a horse on the same occasion, it was said is also defeated by the same principle. Counsel spoke as if Schlosser had undergone a sack, and its booty had become matter of belligerent right in the soldiery. Surely, the imagination of counsel must have been heated. It seems necessary to remind them again and again, even in affirmance of their own admission, that we are sitting to administer the laws of a country which was at peace with England when she sent in her soldiery.

If they mean that the approval and demand in Mr. Fox's letter, should, under the law of peace, have the sweeping effect which is claimed for it, they are bound to show that the royal mandate improves by importation. The queen has


no power at home to take away or suspend, for a moment, the jurisdiction of her own Courts. Nor would a command to discharge any man without trial who should be suspected of having murdered her meanest subject, be deemed a venial error. It is justly a source of Briton's pride, that the law by which his life and property are protected cannot be suspended even by his monarch; that the sword of Justice is holden by her own independent ministers, as a defence for those who do well; but constantly threatening, and ready to descend upon the violator of property or personal safety, as the instrument of a municipal law which knows not of any distinction between the throne and the cottage; a law constantly struggling, in theory at least, to attain a perfection that shall bring all on earth to do it reverence; "the greatest as fearing its power, and the least as not unworthy of its care." That case is our own.

Much was said on the argument about the extreme hardship of treating soldiers as criminals, who, it was insisted, are obliged to obey their sovereign. The rule is the same in respect to the soldier as it is with regard to any other agent who is bound to obey the process or command of his superior. A sheriff is obliged to prosecute a man who is regularly sentenced to capital execution in this State. But should he execute a man in Canada under such sentence he would be a murderer. A soldier, in time of war between us and England, might be compelled by an order from our Government, to enter Canada and fight against and kill her soldiers. But should Congress pass a statute compelling him to do so on any imaginable exigency, or under any penalty, in time of peace, if he should obey and kill a man, he would be guilty of murder.

The mistake is in supposing that a sovereign can compel a man to go into a neighboring country, whether in peace, or war, and do a deed of infamy. This is exemplified in the case of spies. A sovereign may solicit and bribe, but he cannot command. A thousand commands would not save the neck of a spy, should he be caught in the camp of the enemy. Vattel, b. 7, ch. 10, sec. 179. It is a mistake to suppose that a soldier is bound to do any act contrary to the law of nations, at the bidding of his prince-Vattel, b. 1, ch. 4, sec. 53-4, id. b. 3, ch. 2, sec. 15. Grot. b. 2, ch. 26, sec. 3, n. 2 and 3. Puf. b. 8, ch. 1, sec. 6-7. But if he were, he must endure the evil of living under a sovereign, who will issue such commands. It does not follow that neighboring countries must submit to be infested with incendiaries and assassins because men are obnoxious to punishment in their own country, for being desirous to go through life with bloodless hands and a quiet conscience.

The Parisians thought themselves bound to obey Charles IX, when he ordered them to massacre the Hugenots. Suppose they had observed a similar order to massacre the Hugenots in England, would such an order have been deemed a valid plea on one of them being arraigned in the Queen's Bench? It might have been pleaded to an accusation of murder, in France-it would have been good as between the criminal and his sovereign; but hardly, I suspect, have been deemed so by Queen Elizabeth's Judges. The simple reason would have been that Charles IX, had no jurisdiction in England. He might have threatened the government and declared war, if such a meritorious servant, a defender of the church, should not be liberated by the Judges. But there is no legal principle on which the decrees of foreign courts or the legislator of foreign Parliaments could have ousted the judges of jurisdiction.

Charles might have ordered his minister to call the massacre a public act, planned and executed by himself, he having authority to defend and protect his established church; and demanded a release of the man. All this would have added no force to the plea. Neither Elizabeth herself, nor any of the Tudors, arbitrary as the government of England, was, would have had power directly to take away the jurisdiction of the judges. Coke, with a law book in his hand could have baffled the sceptre within its own territorial jurisdiction. It should, in justice be remarked, that one, the governor of Bayonne, and many of his companions in arms refused to co-operate in the massacre at home, and were never punished for disobedience. He replied to the King, that

he had sounded his garrison, and found many brave soldiers among them, but not a single executioner. Suppose a prince should command a soldier to commit adultery, incest or perjury; the prince goes beyond his constitutional power; and has no more right to expect obedience than a corporal who should summarily issue his warrant for the execution of a soldier. Vid. Burl. L. of Nature, Vol. 1, pt. 2, ch. 11, § 8. Every political and civil power has its legal limits. The autocrat may indeed take the lives of his own subjects, for disobeying the most arbitrary commands; but even his behests cannot impart protection to the merest slave as against a foreign government. Public war itself has jurisdictional limits. Even that, in its pursuit after a flying enemy, is, we have seen, arrested by the line of a country at peace. Besides the limit which territory thus imposes, there are also, even in general war, other jurisdictional restraints, as there are in courts of justice. An order, emanating from one of the hostile sovereigns, will not jusitfy to the other every kind of perfidy. The case of spies has been already mentioned. An emissary sent into a camp with orders to corrupt the adverse general, or bribe the soldiery, would stand justified to his immediate sovereign. Vattel, b. 3, ch. 10, sec. 181; though even he could not legally punish a refusal. In respect to the enemy, the orders would be an obvious excess of jurisdiction. The emissaries sent by Sir Henry Clinton in 1781, to seduce the soldier of the Pennsylvania line, falling into the hands of the Americans, were condemned and immediately executed. 4 Marsh. Life of Wash. 366, 1st ed. Entering the adverse camp to receive the treacherous proposition of the general is an offence much more venial. It is even called lawful in every sense, as between the sovereign and employee. Vattel, b. 3, ch. 10, § 191. Yet, in the case of Major Andre, an order to do so was, as between the two hostile countries, held to be an excess of jurisdiction. These cases are much stronger than any which can be supposed between nations at peace. In time of peace, every citizen, while within his own territory, has a double right to suppose himself secure; the legal inviolability of that territory, and the solemn pledge of the foreign sovereignty.

The distinction that an act valid as to one may be void as to another, is entirely familiar. A man who orders another to commit a trespass, or approves of a trespass already committed for his benefit, may be found to protect his servant, while it would take nothing from the liability of the servant to the party injured. As to him, it could merely have the effect of adding another defendant, who might be made jointly or severally liable with the actual wrong-doer. A case in point is mentioned by Vattel, b. 3, ch. 2, § 15. If one sovereign order his recruiting officer to make enlistments in the dominion of another, in time of peace between them, the officer shall be hanged notwithstanding the order, and war may also be declared against the offending sovereign. Vid. a like instance id. b. 1, ch. 6, § 75.

What is the most legal effect of a foreign sovereign, approving of the crime his subject committed in a neighboring territory? The approval, as we have already in part seen, can take nothing from the criminality of the principal of fender. Whatever obligation his nation may be under to save him harmless, this can be absolutely done only on the condition that he confine himself within her territory. Vattel, b. 2 ch, 6, § 74. Then, by refusing to make satisfaction, to furnish, or to deliver him up, on demand from the injured country, or by approving the offence, the nation, says Vattel, becomes an accomplice, id. § 76. Blackstone says, an accomplice or abettor. 4 Com. 68; and Rutherford, still more nearly in the language of the English law, an accessory after the fact, b. 2, ch. 9, § 12. No book supposes that such an act merges the original offence, or renders it imputable to the nation alone. The only exception lies in the case of a crime committed by an ambassador. Not because he is guiltless, but by reason of the necessity that he should be privileged, and the extra-territorial character which the law of nations has, therefore, attached to his person.Hence, say the books, he can be proceeded against no otherwise than by a complaint to his own nation, which will make itself a party on his crime, if it refuse either to punish him

by its authority or deliver him up to be punished by the offended nation. Ruth. b. 2, ch. 9, § 20.

Independently of this exception, therefore, Rutherford insists, with entire accuracy, that, "as far as we concur in what another man does, so far, the act is our own; and the effects of it are chargeable on us as well as upon him."Ruth. b. 1. ch. 17, § 6. A nation is but a moral entity; and, in the nature of things, can no more wipe out the offence of another by adopting it, than could a natural person. And the learned writer just cited accordingly treats both cases as standing on the same principle. B. 2, ch. 9, § 12. "Nothing is more usual," says Puffendorf, "than that every particular accomplice in a crime, be made to suffer all that the law inflicts." B. 3, ch. 1, § 5. Vattel says of such a case, b. 2, ch. 6, § 75, “If the offended State have the offenders in her power, she may, without scruple, punish him. Again, if he have escaped and returned to his own country, he may apply for justice to his sovereign, who ought, under some circumstances, to deliver him up-id. § 76. Again, he says, she may take satisfaction for the offence herself when she meets with the delinquent in her own territories." B. 4, ch. 4, § 52. I before cited two instances in which positive orders by his sovereign to commit a crime are distinctly held to render both the nation and its subjects obnoxious to punishment. Vattel, b. 3, ch. 2, § 15; id. b. 1, ch. 6, § 75; vid. also 1 Burl. pt. 2, ch. 11, § 10. Was it ever suggested by any one before the case of McLeod arose, that the approval by a monarch should oust civil jurisdiction or even so much as mitigate the criminal offence; nay, that the coalition of great power with great crime does not render it more dangerous, and therefore more worthy of punishment under every law by which the perpetrators can be reached!

Could approbation and avowal have saved the unhappy Mary, Queen of Scots, where would have been the civil juof an attempt by Mary to dethrone and assassinate the Bririsdiction of Elizabeth's commissioners? The very charge tish Queen implied the approbation and active concurrence of one crowned head at least. Could the criminal have been have been avowed as one which had been planned by the saved by any such considerations, the enterprise might truly leading governments of Catholic Europe.

diction, even in England, had openly approved it under his The Pope then, having at least some pretensions to jurisseal.


upon to follow up the event with an invasion.
The Spanish ambassador at Paris was a party relied
James, the son of the accused, have hesitated to join in the
avowal, could he have been instrumental in saving the life
of his mother? Yet the principle was not thought of in
the whole course of that extraordinary affair. Mary openly
avowed her general treason as a measure of defence and pro-
tection to herself, though she denied all participation in the
plot to assassinate Elizabeth. Yet the only ground taken
was, the technical one (nor the less valid because technical)
that the accused was personally privileged as a monarch, and
could not be tried under the English law which required a
jury composed of her peers.

It was added that she came into the kingdom under the law of nations, and had enjoyed no protection from the English law, having been continually kept as a prisoner. Vide the case stated and examined in the right of international law, 2 Ward's L. of Nations, 564. No one pretended that her approbation, or that of a thousand monarchs could have reflected any degree of exemption from judicial cognizance, upon the alien servants in her employment.

Such a principle would have filled England with an army in time of peace, disguised as Jesuits; for the bigotry of monarchs would at this day, have led them to avow any system of pernicious espionage which could have served the purposes of the Pope by executing his Bull of excommunication against Elizabeth.

Canada again being disturbed, and our citizens aiding the revolt by boats, provisions, or money, the purposes of England would certainly require such conduct to be put down at all events. Adopt the principle that she may by avowal protect her soldiery who steal upon our citizens at midnight, from all punishment at the common law, and before you

could get even a remonstrance from Washington, your whole frontier might be made a tubula raza. No. Before England can lawfully send a single soldier for hostile purposes she must assume the responsibility of a public war.

Her own interests demanding the application of the rule, she perfectly understands its force. What regard have her courts ever paid to the voice of the public authority on this side of the line, when it sought to cover even territory to which the United States denies her title? The mere act of taking a census in the disputed territory under the authority of Maine, was severely punished by the English municipal magistrates., Had a posse of constables or a company of militia bearing muskets been sent to aid the censor, in what book or in what usage could she have found that this would divest her courts of jurisdiction, and put the cabinet of St. James to a remedy by remonstrance of war? Had the posse been arrested by her sheriff, and in mere defence had killed him, and this nation had, after some two or three years, avowed the act, would she have thought of conceding that in the meantime, all power of her courts over the homicides had been suspended, or finally withdrawn?

But it is said of the case at bar, here is more than a mere approval by the adverse government; that an explanation has been demanded by the Secretary of State, and the British Ambassador, has insisted on McLeod's release, and counsel claim for the joint diplomacy of the United States and England some such effect upon the power of this court as a certiorari from us would have upon a county court of general sessions. It was spoken of as incompatible with a judicial proceeding against McLeod in this State; as a suit actually pending between the two nations, wherein the action of the general government comes in collision with and supersedes our own.

To such an objection the answer is quite obvious. Diplomacy is not a judicial executive function: and the objection would come with the same force whether it were urged against proceeding in a court of this State, or of the United States. Whether an actual exertion of the treaty-making power, by the President and Senate, or any power delegated to Congress by the Federal Constitution, would work the consequences contended for, we are not called upon to inquire; whether the Executive of the nation, (supposing the case to belong to the national court,) or the Executive of this State might not pardon the prisoner, or direct a nolle prosequi to be entered, are considerations with which we have nothing to do.

The Executive power is a constitutional department in this, as in every well organized government, entirely distinct from the judicial. And that would be so, were the National Government blotted out, and the State of New York left to take its place as an independent nation.

Not only are our constitutions entirely explicit in leaving the trial of crimes exclusively in the hands of the judiciary; but neither in the nature of things, nor in sound policy, can it be confined to the Executive power. That can never act upon the individual offender; but only by requisition on the foreign government; and in the instances before us, it has no power even to inquire whether it be true that McLeod has personally violated the criminal laws of this State. It has charge of the question in its national aspect only. It must rely on accidental information and may place the whole question on diplomatic considerations. These may be entirely wide either of the fact or the law as it stands between this State and the accused. The whole may turn on questions of national honor, national strength, the comparative value of national intercourse, or even a point of etiquette. Upon the principle contended for, every accusation which has been drawn in question by the executive power of two nations, can be adjusted by negotiation or war only. The individual accused must go free, no matter to what extent his case may have been misapprehended by either power.No matter how criminal he may have been, if his country, though acting on false representations of the case, may have been led to approve of the transaction and negotiate concerning it, the demands of criminal justice are at an end. Under circumstances the executive power might in the exercise of its discretion, be bound to disregard a venial of VOL. V.-6

fence as no breach of treaty which the judiciary would be obliged to punish as a breach of international law. Suppose some of our citizens to attack the British power in Canada, and the Queen's soldiers to follow the heat of repelling them by crossing the line and arresting the offenders, doing no damage to any one not actually engaged in the conflict. The line being absolutely impassable in law for hostile purposes, the arrest on this side would be a technical false imprisonment, for which we should be bound to convict the soldiers, if arrested here; while the executive power might overlook the intrusion as an accidental and innocent violation of territory. Vattel, b. 4, ch. 4, § 43.

I forbear now to notice particularly some of the legal pas sages and cases which were referred to by the prisoner's counsel in the course of his argument; not for the reason that I have omitted to examine them, but because I consider them inapplicable under the views I have felt it my duty to take of the prisoner's case. They were principally of three classes: First, passages from books on the law of nations as to what is public war and the protection due to soldiers while engaged in the prosecution of such a war by their sovereign against a public enemy; secondly, the general obligations of obedience as between him and his sovereign, whether in peace or war; and thirdly, cases from our own books relative to the conflicting power of the General and State Governments. The case of Elphinstone v. Bedreechund, 1 Knapp's Rep. 316, related to the breach of an actual military capitulation entered into during an acknowledged public war between England and one of the petty sovereignties of India.

In considering the question of jurisdiction, I have also forborne to notice that branch of the affidavit which sets up an alibi. McLeod's counsel very properly omitted to insist on it as at all strengthening the claim of privilege. Indeed he said the clause was put in merely by way of potestando. If it was inserted with the intention of having it taken as true upon this motion, that alone would destroy all pretence for any objection to our jurisdiction.

His surrender was demanded upon the hypothesis that he was acting under public authority. If in truth he was not, or was not acting at all, he enjoys, according to his own concession no greater privilege than any other man. The essential circumstance relied on as going to the question of jurisdiction, turns out to be fictitious; and the argument must be that we have no power to try the question of alibi. On that and every other lawful ground of defence he will be heard by counsel on his trial.

It is proper to add, that if the matters urged in argument could have any legal effect in favor of the prisoner, I should feel entirely clear that they would be of a nature available before the jury only. And that according to the settled rules of proceeding on Habeas Corpus, we should have no power ever to consider them as a ground for discharging the prisoner. I took occasion to show in the outset that in no view can the evidence for the prosecution or the defence be here examined, independently of the question of jurisdiction, and I entertain no doubt that whenever an indictment for a murder committed within our territory is found, and the accused is arrested, these circumstances give complete jurisdiction. I know it is stated by the English books, that even in a case of mixed war, viz: a hostile invasion of England by private persons, the common law courts have not jurisdiction. It was so held in Perken Warbeck's case. He was punished with death by sentence of the constable and marshal, who it is said in Calvin's case, 7 Co. Rep. 11, 12, had exclusive jurisdiction. Dy. 145, a S. P. 1 Curw. Hawk. ch. 2, § 1, p. 9. But that rests on a distribution of judicial power entirely unknown to this state or this nation. The court of the constable and marshal seems to have had an ancient right, not very well defined by the common law, of trying all military offences by the stat. R. 2, ch. 2 (vide 2 Pick St. at Large, p. 310,) which was passed to settle conflicting claims of jurisdiction between that and the ordinary courts, vide also 3 Inst. 48. The whole is obviously inapplicable to this country; and is pretty much obsolete in England. It never can have been held in England or any country, that where a common law Court is proceeding on indictment for

« ForrigeFortsett »