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US/ 5'6*3./<i*5" 




CLASS OF 1882 


















U^ M^b ^5, (b.r 







Page 8| line 10— read discharge or bail, for discharge on bail. 
" " " 15— read judgment or decree, for judgment 091 decree. 
" 15, *• 9— read 12 Ea$t, 225, for 15 Ewt, 225. 


No. 9 Tham€$-itreet, 




The following Review of the Opinion of Judge Coven, of 
the Supreme Court of the State of New-York, in the case 
of Alexander McLeod^ is respectfully inscribed, by 




T*t!' ■ 




The following Review was originally published under ihe 
anonymous designation of " A Citizen of New-York." — The 
principles of law there laid down, and the distinguished ability 
with which they were maintained, excited the attention and 
called forth the unqualified approbation of the most eminent 
Statesmen and Jurists in the country. A new edition being 
required, the author has made the necessary corrections, fur- 
nished some additional authorities, and given permission to 
prefix his name. We are also allowed to add the letters of 
Chancellor Kent and Chief Justice Spencer, each affirm- 
ing and sustaining to the fullest extent, every position taken 
by the Reviewer. The authority which the names of those 
distinguished jurists carry with them, and the well reasoned 
matter of the Review, cannot fail to satisfy every unprejudiced 
mind, that the Supreme Court of the State of New-York egre- 
giously erred in declaring the principles of national law in the 
case of Alexander McLeod. 

To McLeodf individually, the decision of the Supreme Court 
is no longer of any importance. But so far>as it may operate 
as a precedent, or be cited as authority, hereafter, in cases 
involving questions of peace or war with foreign powers, it is 
of vital importance. McLeod having been acquitted, there 
was no opportunity to review the decision of the Supreme 
Court before a higher tribunal. If there had been, we have 
no doubt such tribunal would have come to the same conclu- 
sions to which the Reviewer has arrived. And we venture to 
predict that, whenever such questions shall again arise, this 
Review will be referred to, as containing the true principles 
on which the decision of them must rest. 


Nbw-York, November 6tk, 1841. 
Dear Sir, 

I thank you for your Review of the opinion 
of Judge CowEN in the case of McLeod. 

It is very ably executed. It is clear, precise, neat, accurate, 
and entirely conclusive upon every point. I have read it with 
great satisfaction, and I should have been proud if I had been 
the author of it. 

Yours, very respectfully, 


Lyons, November 12/A, 1841. 
Mr Dear Sir, 

Your letter, accompanied by a Review of 
Mr. Justice Cowen's opinion in the McLeod case, from the pen 
of Judge Tallmadge, has been received, and I thank you for 
them. I have read the Review with great satisfaction, and con- 
sider it a masterly and unanswerable production. It refutes 
and overthrows the opinion most amply. The authorities 
upon all the points, except on that of the proceedings on habeas 
corptiSy are full and perfect. It probably did not occur to Judge 
Tallmadge to examine our Statute of Habeas Corpus, 2 R. S. 
663. The revised act refers to the laws of 1818, which con- 
tain an enactment drawn by me. Prior to this Statute it was 
matter of great doubt whether a Judge at Chambers, or even 
the Court itself, could, after the return made, examine into the 


facts aliunde^ in contradiction or explanation of the return to the 
writ. That act and the revised law give express power to 
make such examination ; and the forty-eighth section authori- 
zes, in express terms, the Judge, after hearing the "allegations 
and proofs to dispose of such party as the justice of the case 
may require." The fortieth section of the act specifically 
directs when the party shall be remanded, and there are only 
three cases. It follows inevitably, that in every other case, the 
Judge, or Court, has plenary powers, if he or they see fit to 
discharge or bail. 

The three cases are. 

First, a detention on process issued by a Court or Judge of 
the United States, where such court or Judge has exclusive 

Second, detention on a judgment or decree of any competent 
Court of civil or criminal jurisdiction, or on an execution issued 

Third, for contempt, &c. 

Now the specification of the case^in which the party suing 
out a habeas corpus shall be remanded, and giving full jurisdic- 
tion to deside all other cases, and to remand or bail, proves that 
the fact of an indictment found, even for murder, raises no 
objection to a discharge or bailing. 

With high esteem and regard, 

Yours truly, 


REVIEW, &e. 

The importance of the questions involved in the opinion de- 
livered by Judge Cowbn, of the Supreme Court of the State 
of New-York, in the case oi Alexander McLeod, and the erro- 
neous principles of national law put forth in that opinion, seem 
to require that the true doctrines involved in the case should be 
placed in a correct light before the country. To that end, we 
have ventured to embody the result of our examination of the 
subject in the following review of Judge Cowen's opinion. 

The opinion is deficient in methodical arrangement of the 
several positions taken and maintained by the Judge ; and this 
confusion is increased by a badly arranged citation of author- 
ities, and a rambling mode of discussing the subjects. It is also 
much too long ; being nearly double the length required to dis- 
cuss the matters really in issue, even in Judge Cowen's mode 
of discussing them. Why, for example, go through with an 
examination of the question whether our courts have jurisdic- 
tion, and a right to try 3, foreigner for a crime committed within 
our State, and quote the authorities bearing upon the subject to 
prove the jurisdiction, when not a person, lawyer or layman, 
ever doubted it! and when the Judge himself finally says, 
" want of jurisdiction has not been put on the ground that 
McLeod was a foreigner." 

The other branch of the question of jurisdiction, discussed 
at great length by the Judge, seems to us an equal waste of 
labour and learning. As we understand it, the case of McLeod 
does not involve any question of jurisdiction: for it must be 
conceded that our state courts have jurisdiction over all cases of 
murder committed within the boundry of the State. McLeod^s 
case presents for consideration — ^not a question of jurisdiction, 
but a question of guilt or innocence ; whether the homicide 


with which he is charged be a crime according to the law of 

If a sheriff should, in pursuance of a sentence, hang a per- 
son convicted of murder, and after the execution it should be 
ascertained that the person executed was innocent, and a grand 
jury should thereupon indict the sheriff for the murder of the 
person executed, the sheriff could not interpose an objection to 
the jurisdiction of the court, but would rely for his defence and 
justification upon the fact of a conviction by a court of com- 
petent jurisdiction ; thereby showing that the homicide in him 
was not a crime. 

So, also, if a soldier should be tried by a court-martial, and 
sentenced to be shot; and, after his execution, those engaged 
in it should be indicted for murder ;. their defence would not 
be a want of jurisdiction in the state court, but a justification 
before that court, under a regular court-martial conviction and 
sentence, thereby showing that the homicide was not a mur- 

Suppose, after the peace with Great Britain, a British sol- 
dier had come within our State, and had been arrested and in- 
dicted for murder committed in the attack on Buffalo during 
the war; he would not think of raising a question of jurisdic- 
tion in the court, but would rely on the law of nations to justify 
the homicide, and relieve him from the charge of crime. 
Indeed, whenever a question of the jurisdiction of a court is 
raised, it necessarily admits the charge or claim preferred. 
The plea to the jurisdiction is one of confession and avoidance ; 
surely the counsel of McLeod never intended to admit, for a 
moment, the crime of murder, with which he was charged, and 
seek to escape its consequences by alleging that the court had 
not jurisdiction over the offence! In this part of the opinion, 
therefore, we think the Judge must have been fighting a sha- 
dow of his own casti ng. 

There is, also, another part of this opinion, and no inconsi- 
derable part of it, that appears to be a waste of learning and 
authorities. It is that part in which the Judge proves, beyond 
question, "that every voluntary entrance into neutral territory, 


with hostile purposes, is absolutely unlawful;" yet, after an 
elaborate discussion of this question, a citation of authorities at , 
great length to prove the unlawfulness of the violation of our 
territory by England, the Judge says, "that the act was one 
of mere arbitrary usurpation; was not denied on the argument; 
nor has this^ that 1 am aware of been denied by any one except Eng- 
land herseip'* 

We concede that the authorities cited show that the hostile 
attack upon the Caroline, and the violation of our territory, was 
unlawful; that is, without adequate cause; but not one of all 
the authorities which pronounce a violation of territory unlaw- 
ful, denounce upon the military of the nation, under whose 
authority it is done, any personal penalty. 

If we examine history, we shall find that quite as many 
wafs have been commenced without, as with adequate cause, 
when tested by the general reason and sense of mankind; yet 
no one ever thought of making that the test of the impunity 
belonging to the military engaged. Such a test can only be 
applied to controversies between individuals, where there is a 
common arbiter or judge to decide ; never between nations, 
who admit no judge but themselves. The argument, there- 
fore, on the side of McLeody is not at all weakened by not de- 
nying that the attack was unjustifiable on thfe part of his nation. 

In the examination of this subject, we shall concede what 
has never been denied, and what has taken so much of this 
learned opinion to prove, to wit : that a foreigner is liable to be 
tried by our courts for crimes cotnmitted within the State ; that 
the state courts have jurisdiction in all cases of murder commit- 
ted within the State ; and, for the sake of the argument, that the 
hostile expedition, in which the Caroline was burned, and 
Duifee killed, was an unlawful violation of our territory. 

We proceed, then, to the discussion of the main question 
involved in this case, to wit: whether McLeod is entitled to the 
impunity of a soldier in time of war. 

The points sought to be established by the affidavit of 
McLeodf are thus concisely stated by Judge Cowen : 


That the Niagara frontier was in a state of war a^inst the 
contiguous province of Upper Canada; that the homicide was 
committed oy McLeod^ if at all, as one of a military expedition, 
set on foot by the Canadian authorities to destroy the ooat Ca- 
roline; 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 time of war." 

From such a state of facts Judge Cowbn takes his position 
in relation to the rights and liabilities of England and her mil- 
itary, as follows : 

*•! deny that she can, in time of peace, send her men into 
our territory, and render them impervious to our laws, by em- 
bodying them and putting arms in their hands. She may de- 
clare war ; if she claim the benefit of peace, a^ both nations have 
done in this instance, the moment any of her citizens enter our terri- 
tory, they are a^s completely obnoxious to punishment, by our law, as 
if they had Accn bom and alvmjs 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 o\ 
Parliament, conferred all the power which can be contended 
for in behalf of the Canadian authorities, as far as she could 
do so." 

This, we confess, is meeting the question boldly; and we 
accept, for the sake of the argument, and for the present, the 
concession of the suflSciency of the power conferred on the Ca- 
nadian authorities. Before we leave the subject, however, we 
will dispense with this concession, and establish the sufl5ciency 
of this power, by the most clear and conclusive authorities. 

Upon the question as before stated by Judge Cowen, he 
applies to it the law of nations, as follows: 

" To warrant the destruction of property, or the taking of life, 
on the ground of public war, it must be what is called lawful 
v^r by the law of nations; a thing which can never exist with- 
out the actual concurrence of the war-making power. This, on 
the part of the United States, is Congress: on the part of En- 
gland, the Queen. A state of peace and the continuance of 
treaties must be presumed by all courts of justice till the con- 
trary be shown; and this is ^ presumptio juris et de Jure, until 


the national power of the country in which such courts sit, offi* 
cially declares the contrary." 

Now the entire error in the opinion of the Judge arises from 
the erroneous principle of international law which he here lays 

All will agree that the war which affords impunity to those 
engaged in it, must be a lawful war. But by the term lawful 
war is not meant a ^^ solemn B.nd formal war" only; on the con- 
trary, it comprehends every description of war, except hostile 
expeditions set on foot for purposes of plunder and pillage, 
without any apparent cause. 

Rutherforth says : " If one nation seizes the goods of another 
nation by force, upon account of some damage, &c. such con- 
tentions by force are reprisals. There may be likewise othe?' 
acts of hostility between two nations, which do not properly 
come under the name of reprisals, such as the besieging each 
other's towns, or the sinking of each other's fleets, whilst the 
nations in other respects are at pea.ce with one another. These are 
public warsy because nations are the contending parties. But 
as they are confined to some particular object, they are of the 
imperfect sorty'^ Sfc. — B. ii, c. 9, sec. 10. 

In opposition to this authority, it will be seen that Judge 
Cow^N starts with the proposition that, so long as the entire 
peace of the two nations is not broken up — in other words, un- 
til Congress shall declare war against England^ or the Queen 
of England against us, there cannot be a state of war that will 
warrant the destruction of property, or the taking of life in con- 
flict, on either side. To controvert this proposition, we bring 
not only Rutherforth, as above cited, but Vattel, in language if 
possible still more explicit. — B. Hi, c. 4, sec. 67. 

" A war lawful and in form, is carefully to be distinguished 
from an unlawful war entered on without any form, or rather 

from those incursions which are committed either mthout lawful au- 
thority or apparent cause, a^ likewise without formalities, and only 

for havoc and pillage. Grotius, b. iii, chap. 3, relates several 
instances of tne latter. Such were the wars of the Grandes 
Compagnies, which had assembled in France during the wars 
with the English ; armies of banditti which ranged about Eu- 
rope purely for spoH and plunder. Such were the cruises of 


Filbustiers, without commission and in time of peace ; and such 
in general are the depredations of pirates. To the same class 
belong almost all the expeditions of the African corsairs, 
though authorized by a sovereign, they being founded on no 
apparent just cause, and whose only motive is the avidity of captures. 
I say these two sorts of wars, lawful and unlawful, are to be care- 
fully distinguished ; their effects and the rights arising from them 
being very different." 

Here we have Vattel, distinguishing all the hostile collisions 
of nations into " tvx) sorts of wars f^ the one sort being underta- 
ken " without apparent cause,^^ and for " havoc and pHlage,^^ and 
all that do not come under this head being of the other sorL 
Having thus divided wars into " two sorts," the one he calls 
unlawful war, the other lawful war. 

Vattel dues not, like Judge Cowen, call all wars unlawful 
that are not formally oxiA solemnly declared by the " war-making 
power" of a Government, but he pronounces all hostile attacks 
lawful wars, if made with lawful authority, and for ^^ apparent 
cause^'^ and not for ^^ pillage and havoc.^^ 

Chancellor Kent, too, admits that a formal declaration of 
was is not essential to make the war lawful. All that is requi- 
red to make a lawful war is, that the hostilities be authorized 
by the proper authorities. — 1 Kent^s Com. 54. 

" Since the time of Brinkershoock, it has become settled, by 
the practice of Europe, that war may lawfully exist by decla- 
ration which is unilateral only, or without a declaration on either 
side. It may begin with mutual hostilities. In the war between 
England and France, in 1778, the first public act on the part of 
England was recalling its Minister ; and that single act was 
considered by France as a breach of the peace between the 
two countries. There was no other declaration of war, though 
each Government afterwards published a manifesto, in vindi- 
cation of its claims and conduct. The same thing may be said 
of the war which broke out in 1793, and again in 1803, and 
indeed in the war of 1756. Though a solemn and formal de- 
claration of war, in the ancient style, was made in June, 1756, 
various hostilities had been carried on for b. year preceding.^* 

In the same explicit manner Rutherforth speaks, denying the 
necessity of a declaration of war to make the war lawful : 


" The only real effect of a declaration of war is, that it makes 
the war a general one, or a war of one whole nation against 
another whole nation ; whilst the impetfect sorts ofwavy such as 
reprisals, or acts of hostility, are confined to particular jjer^tww, 
or things, ox places. '^^ — Ruth. B. it, c. 9, sec. S. 

These questions do not depend entirely upon the opinions of 
elementary writers upon national law. They have been illus- 
trated by judicial decisions, in courts of the highest authority. 

/HiSl East, 225. This was an action to recover back the 
premium paid on a marine policy of insurance ; and the ques- 
tion .was whether a state of war existed at the time the insu- 
rance was effected so as to render the policy void. Hostilities 
had been commenced by Russia against England the day be- 
fore the insurance was effected, but was not known to either 
party at the time. For the defendants it was insisted that " no- 
thins; which was done in Russia, even if it had been known here, 
would have bound British subjects, until the state of war was 
known and recognised by this government." 

Lord Ellenborough. " The commencement of hostilities by Rus- 
sia against this country, placed the two countries in a state of 
hostility, and made the subjects of Russia enemies to this coun- 
try at the time when this insurance was effected. Formal de- 
clarations of war only make the slate of war more notorious; 
but, though more convenient in that respect are not necessary to 
constitute such a state.^^ « 

1 Dodson^s Admiralty Reports, 24:7. A declaration of war 
was issued by Sweden against Great Britain, on account of the 
encroachments of the latter upon her rights as a neutral nation. 
It was contended before Sir William Scott, that the two coun- 
tries were not, in reality, in a state of war, because the decla- 
tion was unilateral only. " I am, however, perfectly clear," 
says Sir William Scott, " that it was not less a war on that 
account ; for war may exist without a declaration on either 
side. It is so laid down by the best writers on the law of na- 
tions. A declaration of war by one country only, is not, as has 
been represented, a mere challenge, to be accepted or refused 
at pleasure by the other. It proves the existence of actual 
hostilities, on one side at least, and puts the other party also 
into a state of war ; though he may, perhaps, think proper to 
act on the defensive only." 

Thus, it will be perceived, a lawful war may be conmienced 
without any formal declaration, and it may be manifested by 


an act of hostility, without any previous notice ; and whether 
the war becomes a general one or an imperfect watj depends 
upon the extent to which hostilities are carried. It will al- 
ways be a lawful imr, if the hostilities are authorized by the 
proper authority, and are not mere wanton depredations, with- 
out any apparent cause. 

Are the military^ the general officers and soldiers who engage 
in such hostile attacks to be held personally answerable in the 
ordinary courts of law, as for a private offence ? 

The same principle odmpunity applies to hostilities upon the 
land or sea. When they are wanton and malicums, and for plun^ 
der and spoils, at sea, they are called piracy. HostiUties by 
land, from similar motives and for like objects, are called rob- 
beries. Decisions, therefore, in relation to hostilities at sea, 
and the impunity or liability of vessels and crews, furnish the 
rule of impunity or liability to be applied to the military, in 
cases of hostilities upon land. 

11 Wheaton, 41, Story says : " A piratical aggression by an 
armed vessel sailing under the regular flag of any nation, may 
be justly subjected to the penalty of confiscation for such a 
gross breach of the law of nations. But every hostile attack 
in a time of peace, is not necessarily piratical. It may be by 
mistake, or in necessary self-defence, or to repel a supposed medi- 
tated attack by pirates — ^it may be justifiable, and then no blame 
attaches to the act ; or, it may be without just excuse, and then 
it carries responsibility in damages. If it proceed further ; if it be 
an attack from revenge and malignity, from gross ahise of pouter 
and settled purpose of mischief, it then assumes the character of a 
private unauthorized war, and may be punished by all the pen- 
alties which the law of nations can properly administer." 

The same principle is recognised in 1 Kenfs Com. 188 : "An 
alien, under the sanction of a national commission, cannot 
commit piracy while he pursues his authority. His acts may be 
hostile, and his nation responsible for them. They may amount 
to a lawful cause of war, but they are never to be regarded as pi' 

How perfectly does this principle cover the case in question. 
The attack upon the Caroline was hostile and unlawful, and 
the British nation must be held responsible for it. It amounts 


to a lawful cause of war ; but those engaged in it, acting under 
lawful authority, can never be regarded as robbers or plunderers^ 
or liable to be punished criminally. 

This principle has been fully recognised in a judicial deci- 
sion in the English admiralty. We have not the case at hand 
as reported, and therefore avail ourselves of it as extracted by 
Chancellor Kent. — 1 Kem's Com. 190 : 

" In the English admiralty, in 1801, it was contended that 
the capture and sale of an English ship, by Algerines, was an 
invalid and unlawful conversion of the properly, on the ground 
o[ being a, piratical seizure. It was, however, decided, that 
the African States had long acquired the character of esta- 
blished Governments, and that though their notions of justice 
differ from those entertained by the christian powers, their 
public acts could not be called in question ; and a derivative 
title, founded on an Algerine capture^ and matured by a confis- 
cation, in their voay^ was good against the original owner." — 
Citing The Helena, 4 Bjob. 3. 

Shall it be said that an English court has held an Algerine 
capture lawful, because made under the sanction and authority 
of that Government ; and a title thus acquired valid against 
the original English owner of the captured vessel ; and yet the 
Supreme Court of New-York decide that a hostile attack upon 
us, made (not without apparent cause) under the sanction of 
the British Government, shall not protect the military engaged 
in it from the punishment due to cold-blooded murder ! We 
regret to say it has been so said and decided. 

The decisions of the courts of England and the United 
States, in regard to the impunity of vessels and crews when 
acting under the authority of their Grovernments, are decisions 
merely carrying out principles long since laid down by the 
most approved elementary writers upon national law, and 
giving to those principles the authority of solemn adjudications 
by the highest judicial tribunals of the world. 

These elementary writers, when speaking of war generally, 
and more particularly in reference to hostilities upon land, hold 
that whenever the hostile attack is made under the authority 
of Government, it becomes an affair between the two nations, 
and no individual responsibility rests upon the actors. 


Thus, Vattel, speaking of war that is unjust on the part of 
the sovereign who waged it, but lawful, because not without 
apparent cause, and not for havoc and pillage, says : 

" But as to the reparation of any damage — are the military j 
the general officers and soldiers, obliged, in consequence, to 
repair the injuries they have done, not of their own will, but 
as instruments in the hands of their sovereign !" " It is the du- 
ty of subjects to suppose the orders of their sovereign just and 
wise." &c. " When, therefore, they have lent their assistance 
in a war which is afterwards found to be unjust, the sovereign 
alone is guilty. He alone is bound to repair the injuries. The 
subjects, and in particular the military ^ are innocent; they 
have acted only from a necessary obedience." " Government 
would be impracticable, if every one of its instruments were to 
weigh its commands," &c. — Vattel^ h. m, c. 11, sec. 187. 

" Nothing of all this takes place in a war void of form and 
unlawftd, more properly called robbery ^ being undertaken without 
right — without so much as apparent cause. It can be productive 
of no lawful effect, nor give any right to the author of it. A 
nation attacked by such sort of enemies, is not under any obli- 
gation to observe towards them the rules of war in form. It 
may treat them as robbers J*^ — Vattel, b. m, c. 4, sec. 68. 

Thus we have " these two sorts of wars, lawful and unlawful,^^ 
carried through by Vattel to their consequences ; and all per- 
sons engaged are entitled tahave " observed towards tb6m the 
rules ofwar,^^ except those engaged in "incursions committed 
without apparent cause, and only for havoc and pillage." 

The same position in regard to the immunity of soldiers is 
also maintained by Rutherforth : 

" The external lawfulness of what is done in a war, in 
respect to the members of a civil society, extends to public wars 
of the imperfect sort, to acts of reprisals, or to other acts of fios- 
tility,^^ Sfc. — B. a, c. 9, sec. 15. 

And again he says : 

" Neither the reason of the thing, nor the common practice 
of nations, will give them any other impunity, or allow them any 
otherwise to obtain property in what is taken, where war has 
been declared, than in the less solemn kinds of war, which are 
made without a previous declaration," &c. " In the less solemn 


kinds qftoavj what the members do who act under the particu- 
lar direction and authority of their nation, is by the law of na- 
tions no personal crime in them ; they cannot, therefore, be 
punished consistently with the law, for any act in which it 
considers them only as the instruments, and the nation as the 
agent." — Idem^ b. ii, c. 9, sec. 18. 

We here leave this branch of the case, believing that our 
readers, from our citation of authorities, must be satisfied that, 
if the expedition in which McLeod is said to have been engaged, 
was executed under lawful authority, he was guilty of no per- 
sonal crime in the violation of our territory, the destruction of 
the boat, or the death of Durfee. 

We now proceed to show that the hostile attack took place 
under lawful authority. 

It should be borne in mind that Canada is separated from its 
mother country by an ocean of three thousand miles. That a 
revolution was attempted in Canada, and the disaffected of the 
colony had not only the sympathy of our people generally, but 
were, to a great extent, countenanced and succoured by our 
citizens residing upon the borders. 

Under this state of things, the British Government gave or- 
ders and authority to the chief oflScer in Canada for his instruc- 
tion and guidance in meeting the difficulties then presented and 
an ticipated. 

Not being able to foresee what might take place, the autho- 
rity was made as general as the nature of the case would admit, 
and the exigencies seemed to require ; and was, no doubt, in- 
tended to vest in the chief officer in Canada power to do what- 
ever the home Government would have done under like cir- 
cu mstanccs. He was, says the British Minister, " empowered 
to take any steps, and to do any acts, which might be necessary 
for the defence of her Majesty's territory, and for the protec- 
tion of her Majesty's subjects." 

This is a power most general and extensive in its terms. 
The object is, "the protection of her Majesty's territory and 
subjects." To insure this end, the Canadian officer is autho- 
rized to do any act necessary for this protection ; and this ne- 
cessity must, in the nature of things, depend upon the 


judgment and discretion of that oflScer. The authority does 
not limit the officer to any specified measures, or confine his 
acts to the Canadian territory. As England might, in defence 
of her Canadian subjects and territory, authorize a hostile at- 
tack upon the Caroline, under such circumstances as presented 
themselves to the Canadian authorities, it would seem to follow 
that the Canadian officers had power, under their orders, to 
do the same thing. 

By saying that the sovereign of England might authorize 
such a hostile attack as was made on the Caroline, we do not 
intend to say it would be an attack that could be justified to 
the world. We only intend to say that it would be so far jus- 
tifiable or excusable as to furnish impunity to the military 
acting under such an order. 

We think the construction we give to this power receives 
confirmation from Burlimaque, pt. 4, c. 3, sec. 14. Speaking 
of the power of magistrates or generals, this author says: 
" They cannot lawfully undertake any act of hostility of their 
own head,»and without a formal order of the sovereign, at least 
reasonably presumed, in consequence of particular circumstances. 

But have we a right to scrutinize and limit an authority of 
this kind, whilst England sanctions the act done under it, 
and when the object and effect of such limitation is, to make 
murder of an act, which, under a liberal construction of the 
power, would render the accused innocent ofthe slightest crime. 

In a review of " Wheaton's Elements of International Law," 
we find the following apt illustration ofthe right of a nation to 
give its own construction to its own commissions : 

**If a state extended its protection to its lawless subjects, 
committing violence out of its local jurisdiction, there would be 
endless disputes with other states, and probably a great delay 
of justice. On the other hand, if an officer duly commissioned 
in war by one state were to be punished by another for exceed' 
ing or deviating from the purport of his commission, the commis- 
sioning power could not be expected to rest satisfied vnth the judgment 
of the foreign court on the construction or execution of its ovm com-- 
mission, and the dispute which must necessarily occur between 


the two powers would be embarrassed by a questionable pun- 
ishment, in addition to the original cause of complaint." — Bri- 
tish and Foreign Review, vol. xi, p. 158. 

England approved this act, by not immediately disclaim- 
ing it,* by knighting MacNab, the chief projector of it, and 
more recently by officially recognising the attack as one em- 
braced within the powers conferred upon the Canadian 
authorities. Mr. Fox, the British Minister, in a communica- 
tion to our Government, says : 

" The transaction on account of which 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 do any acts which might be necessary for the de- 
fence 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 per- 
forming an act of public duty for which they cannot be made 
personally and individually answerable to the laws and tri- 
bunals of any foreign country." 

But Judge CowEN denies that an approval by the British 
Government can, in any way, operate to screen McLeod from 
the punishment due to the crime of murder, for the part he 
is supposed to have taken in the attack. To maintain this 
position, the learned Judge goes into an elaborate citation of 
authorities, which, to avoid the appearance of injustice to- 
wards him, we here transcribe : 

" An order emanating from one of the hostile sovereigns, 
will not justify 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. 
— Vatteli 6. Hi, c. 10, sec. 180 ; though even he could not le- 
gally punish a refusal. In respect to the enemy, orders would 
be an obvious excess of jurisdiction. 

" The emissaries, sent by Sir Henry Clinton, in 1781, to 

* Barlimaqui seems to consider such an act of the subordinate officer approved, 
unless the sovereij^n officially duclaimt it.'^Bwh pU 4, c. 3, $€C, 19, quoted at 
length hereafter. 


seduce the soldiers 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 
awful in every sense as between the sovereign and employee. 
Vattel, b. Hi, c. 10, sec. 181. Yet in the case of Major Andre, 
an order to do so was, as between the 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 war, such 
perfidy is expected. In time of peace, every citizen> while 
within his own territory, has a double right to suppose him- 
self 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 com- 
mitted for his benefit, may be bound 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. Hi, c. 2, sec. 15. 'If one sove- 
reign 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. i, c. 6, sec. 75. 

" What is the utmost legal effect of a foreign sovereign, 
approving of the crime his subject committed in a neighbouring 
territory ? The approval, as we have already in part seen, 
can take nothing from the criminality of the principal offender. 
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. ii, c. 
6, sec. 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. sec. 76. 

" Blackstone says, an accomplice or abettor; (4 Com. 68 ;) 
and Rutherforth, still more nearly in the language of the English 
law, an accessory after the fact. — B. ii, c. 2, sec. 12. No book 


supposes that such an act merges the original ofience, or ren- 
ders it imputable to the nation alone." 

The rights and duties of nations are not, in general, happily 
illustrated by reference to the rights, duties, and liabilities of 
individuals. In relation to the case of trespass, put by the 
Judge, we agree that the effect of another person's approving 
it might make him a trespasser also, and would not discharge 
the liability of him who actually committed it; and the reason 
is, that the approver had no more right to make the entry than 
the actual trespasser. 

We think it cannot fail to strike every one, that the exam- 
ples given by Judge Cowen, in which the authorization or 
approval by the sovereign cannot protect the criminal, are all 
cases where the act done is criminal in itself, whether com- 
mitted by sovereign or subject. The enlistment of soldiers in 
the dominions of another nation, without its consent, is, by the 
law of nations, a crime. — Vattdy 6. i, c. 6, sec. 75. It is not the 
less criminal if done by the sovereign in person instead of his 
recruiting oflBcer. 

Spies also are not the less criminal because they are autho- 
rized by their sovereign, since the sovereign could not himself 
lawfully act the spy. 

We cannot better answer Judge Cowen on this head thafi 
by transcribing one other of his examples, and annexing to it 
a quotation of his from Locke : 

" Suppose a prince should command a soldier to commit 
adidtery, incest^ or perjury ; the prince goes beyond his constitt^ 
tional power.^^ 

" So says Mr. Locke (on Gov. b. ii, c. 19, sec. 239,) of a 
king even in his own dominions : * In whatsoever he has no 
authority^ there he is no Jdng, and may be resisted ; for where- 
soever the authority ceases^ the Jdng ceases too, and becomes 
like other men who have no authority.' " 

Examples to show that a jsubject may not do an act, with 
or without his sovereign's authority, fall far short .of showing 
that the act he may do by the direction of his Government, 
may not receive equal validity from a subsequent approval of 

the act by that Grovernment, as if it had directed it orignally. 
Omnis ratihabito retrd trahitur et mandato aquiparatur^ is a 
maxim of the law. 

We have already, as we think, established the position, that 
the hostile violation of our territory, resulting in the destruction 
of the Caroline and the killing of Durfee, had the same been 
ordered by the British Government, would have protected the 
military engaged in it from any personal liability. We now 
maintain that the subsequent approval of the attack, especially 
under the circumstances of the original order and the situatioD 
of the mother country in relation to her colony, and of Canada 
in relation to our border, furnishes equal impunity and protec- 
tion to all concerned in it. 

The authorities quoted by Judge Cowen on this head, as 
we have already shown, do not in the slightest degree impugn 
the correctness of this position ; whilst the authorities we shall 
now produce will fortify and fully sustain it. 

Burlimaqui pt. 4, c. 3, sec. 18. — " A mere presumption of the 
will of the sovereign would not be suflScient to excuse a Go- 
vernor or any other oflBcer who should undertake a war, except 
in case of necessity, without either a ^eneroZ or particular order. 
For it is not suflBcient to know what part the sovereign would 
probably act if he were .consulted in such a particular posture 
of affairs ; but it should rather be considered in general what 
it is probable a prince would desire should be done, without 
consulting him, when the matter will bear no delay and the 
affair is dubious. Now, certainly, sovereigns will never con- 
sent that their ministers should, whenever they think proper, 
undertake without their order a thing of such importance as 
an offensive war, which is the proper subject of the present 

Sec. 19. — ** In these circumstances, whatever part the sove- 
reign would have thought proper to act if he had been con- 
sulted ; and whatever success tne war undertaken without his 
order may have had ; k is left to the sovereign, whether he will 
ratify or condemn the (ict of his ministers. If he ratify ity this 
approbation renders the war solemn^ by reflecting back^ as, it werCf 
an authority upon it ; so that it obliges the whole commonwealth. 
But if the sovereign should condemn the act of the Governor, 
the hostilities committed by the latter ought to pass for a sort of 


robbery^ the fault of which by no means affects the State, pro- 
vided the Governor is delivered up and punished according 
to the law of the country, and proper satisfaction be made for 
the dannages sustained." 

8 Peters J 622. — Story, speaking of the seizure of an Ameri- 
can vessel and cargo by a Spanish vessel, says : 

" If she had a commission under the royal authority of 
Spain, she was beyond question entitled to make the seizure. 
It she had no such authority, then she must be treated as a 
non-commissioned cruiser, entitled to seize for the benefit of 
the crown ; whose act, if adopted and acknowlpdffed by the crovm^ 
or its competent authorities, become equally binding. Nothing is 
better settled, both in England and America, than the doc- 
trine that a non-commissioned cruiser may seize for the benefit 
of the Government ; and if his acts are adopted by the Go- 
vernment, the property, when condemned, becomes a droit of 
the Government." 

Upon these authorities, and for the reasons before stated, 
we have come to the conclusion, that the approbation of the 
attack by the British Government has removed all doubt 
about the suflBciency of the original authority of the Canadian 

We have thus far discussed this matter, as if the question, 
as to the relation in which the United States Government 
stands to the British Government, in the matter of this attack, 
was an open one—- one in which the judiciary of the country 
is at liberty to decide by a direct application of the principles 
of the law of nations to the facts as they might be established 
by proof; and in this view of the matter, we feel confident of 
having established, by the facts and the law, that the attack 
upon the Caroline v/sls made upon sufficient authority from the 
British Government ; or, if the authority was in any respect 
equivocal, that it has been ratified by the British Government, 
so as to require of the judiciary of the country, upon the facts 
and the law, a judgment establishing the perfect impunity of 
the military engaged in the expedition. 

We now propose to show that the character of the expedi- 
tion against the Cardinef and the relation in which the two 


countries stand in reference to it, has been settled and decided 
by our Grovemment to be that of " lat^l war'* of the " imperfect 
tort ;" and that courts of justice are not at liberty to pronounce 
a different judgment from that pronounced by the Government 
of the country. 

Has our Government determined the relation in which the 
two countries stand to each other in reference to the impunity 
. to which McLeod is entitled, as being one of this military 
expedition ? 

In May, 1838, shortly after the destruction of the Caroline, 
in a communication to the British Government, our Minister, 
Mr. Stevenson, characterized the attack as " an invasion of 
the territory and sovereignty of an independent nation by an 
armed force of a friendly Power;" and Mr. Webster, Secre- 
tary of State, in his letter to Mr. Fox of the 24th April, 1841, 
says : " the Government of the United States has not changed 
the opinion which it has heretofore expressed to her Majesty's 
Government, of the character of the act of destroying the 

Can language be better adapted to define the first act of 
war by one nation upon another, where there has been no 
previous declaration of war, than that employed by Mr. Ste- 
venson to characterize this attack by Great Britain f 

So long ago, then, as May, 1838, the Executive Depart- 
ment of our Government determined that the attack upon the 
Caroline was an act of war, and so far as that act of hostility 
was concerned, placed the British Government in that rela- 
tion to our own. 

In the letter of Mr. Webster, before referred to, he recites 
the ground upon which the British Government place the 
hostile attack, so far as the military engaged in it are con- 
cerned, and the absent of our Government to this same view of the 

Mr. Webster in his letter, says : 

" The President inclines to take it for granted that the 
main purpose of the instruction was, to cause it to be signi- 
fied to the Government of the United States that the attack 


oa the steamboat * Caroline' was an act of public force, done 
by the British colonial authorities, and fully recognised by 
the Queen's Government at home ; and that, consequently, 
no individual concerned in the transaction can, according to 
the just principle of the laws of nations, be held personally 
answerable in the ordinary courts of law, as for a private 
offence ; and that upon this avowal of her Majesty's Govern- 
ment, Alexander McLeod, now imprisoned on an indictment 
for murder, alleged to have been committed in that attack, 
ought to be released, by such proceedings as are usual and 
are suitable to the case." 

After this recital of the position in which the British Go- 
vernment places the matter, Mr. Webster, speaking in behalf 
of our Government, says: 

" The communication of the fact that the destruction of the 
* Caroline' was an act of public force, by the British authori- 
ties, being formally made to the Gouernment of the United 
States by Mr. Fox's note, the case assumes a decided 

" The Government of the United States entertain no doubt 
that, after this avowal of the transaction as a public transac- 
tion, 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 their participation in it. And the President presumes 
that it can hardly be necessary to say that the American 
people, not distrustful of their ability to redress public wrongs 
oy public means, cannot desire the punishment of individualst 
when the act complained of is declared to have been an act 
of the Government itself." 

In a letter of instructions to the Attorney General, which 
was also communicated to Mr. Fox, Mr. Webster says : 

" That an individual forming part of a public force and act- 
ing 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 United States has no inclina- 
tion to dispute." 

Judge CowEN makes a criticism upon the communication of 

the British Afinister, which, perhaps, requires a passing re- 
mark. He says : 

" Even the British Minister is too just to call it tear; the Bri- 
tish Government do not pretend it was tmr." 

As words in a promise, indicative of an undertaking to war- 
rant, amount, in law, according to " CowerCs Treatise^^^ to a 
vxtrranty^ without the use of the term warrant so, in the letter 
of the British Minister, a description of hostilities that by the 
law of nations constitutes "imperfect war," is equivalent to the 
assertion in terms that it was war of the imperfect sort. 

But the Judge, evidently not feeling much confidence in his 
criticism upon the British Minister's communication, after- 
wards seems to admit that our Government, so far as it could, 
had decided the question in regard to the character of the hos- 
tile attack, and, consequently, in regsurd to the individual lia- 
bility of those concerned in it. 

The language of the Judge is this : 

" 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 Briiish 
Ambassador has insisted on McLeod's release, knd his coun- 
sel claim for ihe joint diplomacy of the United States and En- 
f[land some such effect on the powers of this court as a certiorari 
irom us would have upon the county court of general sessions. 
It was spoken of as incompatible with the judicial proceedings 
against McLeod in this State ; as a suit actually pending be- 
tween the two nations, wherein the action of the General Go- 
vernment comes in collision with, and supersedes our own. 

** To such an objection the answer is quite obvious. Diplo- 
macy is not a judicial but executive function : but the objection 
would come with the same force, whether it were urged against 
proceedings in a court of this State, or the United States.'^ 

But the Judge insists that " the Executive power has charge 
of the question in its national aspect onZy;" by which, from 
the context, we must understand, that the two Governments 
may agree that the hostile attack was of that character which 
furnishes impunity to the military concerned, yet that the 
courts, Federal and Sta^Cf may determine otherwise, and in- 


flict capital punishment upon the offenders ! How "the exe- 
cutive power has charge of the question in its national aspect," 
and yet its decisions be void of all efficiency and effect upon 
the subject decided upon, is, we confess, beyond our compre- 
hension. The General Government cannot, it is true, after 
deciding the question, issue any mandate to a court to carry 
its determination into effect, or remove a cause, or withdraw 
a suitor or criminal from the custody of the courts. But its 
decision becomes binding upon all courts or tribunals where 
the question arises ; and thus the Executive department of the 
Government " has charge of the question in its national as- 
pect," and the law makes its decision all-powerful and efficient. 
It can hardly be necessary to resort to any course of reason- 
ing, or to the citation of aulhorites, to show that the Executive 
of the United States possesses all the power in regard to the 
matter in question that usually belongs to the Executive de- 
partment of every Government. 

" The command and application of the public force to exe- 
cute the law, maintain peace, and resist foreign invasion, are 
powers obviously of an Executive character, and require the 
exercise of qualities so characteristical of this department, that 
they have always been exclusively appropriated to it, in every 
well-regulated Government upon earth." — 1 KenVs Com. 282. 

The memorable attack of the British ship of war Leopard, 
Capt. Humphreys, upon the frigate Chesapeake, Capt. Barron, 
in which several American sailors were killed, became the 
subject of discussion between the two Governments, and re- 
sulted in an adjustment, in which, amongst other things, En- 
gland offered " the American Government a suitable pecu- 
niary provision for the sufferers in consequence of the attack 
on the Chesapeake, including the families of those seamen who 
unfortunately fell in the action, and of the wounded survivors." 
Could Captain Humphreys afterwards have been proceeded 
against in a court of our country, and held personally respon- 
sible, notwithstanding the Executive department of our Go- 
vernment had settled the whole matter with the British 
Government ? There cannot be a doubt, as we think, that this 


adjustment of the matter, ** in its national aspect," was an 
adjustment of the matter in eoery aspect, and binding upon all 
courts and tribunals of the country. 

This principle has been judicially recognised in England. 
There where the Executive department of the Government 
has determined the relation in which the British Grovernment 
stands towards any other country, in regard to hostilities, such 
decision is conclusive, and in all the courts precludes any fur- 
ther examination or agitation of the question. 

3 Camp. IL 61. This was a case of insurance tried before 
Lord Ellenborough, and the cause turned upon the question 
whether the trade to St. Domingo was, at that time, with a 
country at peace with England. 

Lord Ellenborough. *' In the present situation of the world, 
the national character of different places, must from time to 
time be determined by courts of justice. We had lately 
occasion to try the national character of Corfu. The most 
potent evidence upon such a subject is the declaration of the 
State; and if the State recognises any place as not being in 
the relation of hostility to this country, that is obligatory on 
courts of justice.'*^ 

This cause afterwards came before the King's Bench, and 
is reported in 15 East^ 81. Lord Ellenborough delivering the 
opinion of the court, says : 

" This is a grave question, and depends in a great measure 
upon the consideration of the Orders in Council which have 
been referred to. I agree with the Master of the Rolls in the 
case of the Pelican^ that it belongs to the Government of the court- 
try to determine in what relation of peace or loar any other country 
stands towards it^ and that it would be unsafe for courts of jus- 
tice 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; and in the absence of any express pro- 
mulgation of the will of the sovereign in that respect, it may 
be collected from other acts of the State. The Master of the 
Rolls, in the case of the Pelican, lays down the rule generally 
< that it belongs to the Government of th^ country to doermim in 


what relation any other country stands towards it, and that the 
courts of justice cannot decide upon the point ;^ by which I must 
understand him to have said that they cannot decide adversely 
to the declaration of the sovereign upon that point. 

•' For want of a declaration of the Crown at one period, dif- 
ferent verdicts were given in different causes, in respect to 
commercial adventures of the same description to Hamburgh. 
But courts and juries cannot do otherwise than decide secun^ 
dum allegata et probata in such particular cases without regard 
to other proof in other causes." 

This, let it be remembered, was a private litigation between 
individuals ; and the court held that the determination of the 
Government^ as to the relation in which another (Jovernment 
stood towards it, controlled the rights of the parties litigant, 
and put an "cmi to the question^ How much stronger is the 
reason for the application of the rule to our country and 

Without such a rule, conflict and collision arise between 
the Executive and judicial branches of the General Govern- 
ment, and between the General and State Governments. 

Mr. Buchanan, of the Senate, has well described the conflict 
which such adverse decisions, between the Executive and 
judicial departments of the (Joverament, will produce : 

" The judicial authority will be on one side of the question, 
and the Executive Government on the other. Whilst the ju- 
diciary decide that McLeod is responsible in the criminal 
courts of New- York, the Secretary decides that he is not. By 
prejudging this pending judicial question, the Secretary has 
placed himself in an awkward dilemma, should the Supreme 
Court of New- York determine that the recognition and justifi- 
cation by the British Government of the capture of the Caro- 
line does not release McLeod from personal responsibility." 

The mode of remedying this diflSculty, and preventing such 
conflicts in the two departments of Government, suggested by 
Mr. Buchanan, is, we confess, most extraordinary. It is that 
the Secretary of State, representing the executive department 
of Government shall suspend the decision of a question pend- 
ing with a foreign Government until the question shall have 
been judicially decided ; and this course is suggested even 


in a proceeding where the Government is not a party, and 
where a decision may be delayed until those interested in the 
question see fit to bring the matter to a close ! 

Our remedy for what Mr. Buchanan calls this " awkward 
dilemma," is, the rule which prevails in England: when the 
Executive Department has decided a question between our 
own and a foreign Government, which properly belongs to the 
Executive Department to decide, "courts of justice cannot 
decide adversely." Such a rule produces consistency and . 
harmony in every department of the General Government, and 
prevents all collision with the Judicial Departments of the 
State Governments. Without such a rule, the intercourse of 
our Government with other nations becomes empty diplomacy, 
where national matters, discussed, agreed on, and settled by 
the proper Executive Department, are not only disregarded 
by the Judicial Department of the Government, but are per- 
fectly annulled by adverse decisions and judgments, and exe- 
cutions carrying into effect those judgments. 

If, in England, the determination of the Government as to 
the relation in which another Government stands to it, shall 
control the rights of individuals, in a litigation with which the 
Government is not the most remotely connected, and in which 
the public has no interest, how much stronger is the reason 
for applying the rule to criminal courts ; especially when the 
guilt or innocence of the accused is made to depend upon the 
decision, as to the relation in which another Government 
stands to our own, in a hostile collision, where the accused 
was an actor, unconscious at the time of the possibility that 
the part he took could subject him to the imputation of crime ? 

But this principle has received the sanction of the highest 
Courtof our own country. — 3 Wheat. 634. — The U. S. vs. 
Palmer and others. 

This was an indictment for piracy, and grew out of a 
foreign civil war, in which Palmer and others, of the crew of a 
vessel of the revolutionary party, attacked a vessel of the 
other party. Palmer afterwards coming to the United States 
was arrested and indicted for piracy committed in that attack. 


Several questions arose upon the trial and came before the 
United States Court. 

'Chief Justice Marshall delivered the opinion of the Court, 
and in the course of that opinion fully recognised the right of 
the Government to dispose of all questions with foreign na- 
tions, and the duty of the courts to adopt the determination of 
the Government as the basis of their decision in all questions 
that might arise. 

"Those questions," says Marshall, ** which respect the rights 
of a part of a foreign empire, which asserts and is contending 
for its independence, and the conduct which must be observed 
by the Courts of the Union towards the subject of such section 
of an empire who may be brought before the tribunals of this 
'country, are equally delicate and difl5cult. Such questions 
are generally rather political than legal in their character." 

*' The proceedings in courts must depend so entirely on the 
course of the Government that it is difficult to give a precise an- 
swer to questions which do not refer to a particular nation. 
It may be said, generally, that if the Government remains neu- 
tral, and recognises the existence of a civil ujar, its courts connot 
consider a>s criminal those acts of hostility which war authorizes^ 
and' which the new Government may direct against its enemy. 
To decide otherwise would be to determine that the war pro- 
secuted by one of the parties was unlauftd, and would be to 
arraign the nation to which the court belongs against that party. 
This would transcend the limits prescribed to the Judicial Depart" 

The same principle was also recognised in a case 4 Wheat. 
b2. P. 63, Chief Justice Marshall again says : " The Govemr 
ment of the United States having recognised the existence of a 
civil war between Spain and her colonies, but remaining neutral, 
the courts of the United States are bound to consider <m lawful those 
acts which war authorizes^ and which the new Governments of 
South America may direct against her enemies." 

Upon this principle it would seem to follow that our Govern- 
ment having determined that the attack upon the Caroline 
was an act of war " the Courts of the United States are bound to 


camider as lawful those acts (of the attacking party) which war 

1 Wheaton, 283. This was a libel, filed in behalf of the 
original Spanish owner, against certain merchandise alleged 
to have been piratically taken from a Spanish vessel. The 
defence was, that the property was laken by a vessel belong- 
ing to the revolutionary party of Buenos Ayres, and duly 
commissioned by their government. 

TaswcUj of counsel for the claimants, insisted that it was 
not sufl5cient that our government recognised the existence of 
a civil war there. That until the government of the United 
States acknowledged Buenos Ayres as a sovereign and inde- 
pendent government, her ships could not be considered by 
our courts nationfil ships. He conceded, however, that such 
questions belong to the government to decide. ** Sovereign 
rights," says he, " may be settled not only in the federal 
courts but in the State courts, and to guard against the effects 
of a conflict of opinion in such cases between the different 
local tribunals, appeals are brought from the State courts to 
this court. It would be in vain, however, to translate a cause 
here, from the State courts, if this court might decide it dif- 
ferently from the other departments of the govemment*^^ 

** This must not be, however ; the people, though sovereign, 
can have but one mlU and that will must be spoken by all 
their agents, or our government is a muny headed monster. The 
question, then, at last results in this : In what department of 
the government does this will in relation to foreign states re- 
side i for wherever it does reside, that will must be vttered hercj 
or we shall have two conflicting wills on the same matter. 
This does not impugn judicial independence. The judiciary 
are not independent of the law. They utter the legislative 
will of the people when declared by the legislature. They 
purstte its executive mil when communicated by the executive depart- 
ment. All nations have felt the necessity of such a course.'* 

Judge Story, (p. 337,) upon this point of the case, says : " The 
objection is urged that Buenos Ayres has not yet been acknow- 
ledged as a sovereign independent government by the executivet 


or the legislature of the United States, and therefore is not 
entitled to have her ships of war recognised 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 recognised the existence of a civil war be- 
tween Spain and her colonies, and has avowed a determina- 
tion to remain neutral between the parties. Each party is 
therefore deemed by us a belligerant nation, having, so far as 
concerns us, the sovereign right of war, &c., and as such 
must be recognised by our courts of justice until Congress 
shall prescribe a different rule. This is the doctrine hereto- 
fore asserted by this court, and we see no reason to depart 
from it." 

The duty of the court to follow and adopt the decision of 
its government, in all matters relating to foreign nations, was 
again more recently asserted by the United States Court 
in a case where a question of national boundary incidentally 

2 Peters. Rep. 307. Chief Justice Marshall says, ** in a 
controversy between two nations, concerning national boun- 
dary, it is scarcely possible that the courts of either should 
refuse to abide by the measures adapted by its awn government. 
There being no commorf tribunal to decide between them, 
each determines for itself, on its own rights ; and if they can- 
not adjust their difference peaceably, the right remains with 
the strongest. The jtidiciary is not that department of the 
government to which the assertion of the interests against 
foreign patoers 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.*^ 

Again, p. 309, ** If those departments which are entrusted 
with the foreign intercourse of the nation, which assert and 
maintain its interests against foreign powers, have unequivo- 
cally asserted its rights, it is not in its own courts that this con- 
struction is to be denied." 

We have now concluded our examination of the great 
principles of national law involved in the case o{ McLeod^ and 
we feel great confidence in saying we have, by the most 
ample authority, maintained, 1st. That a hostile attack and 


violation of our territory, in time of general peace, by the 
authority of the British Government, with apparent cause, is 
so far a " lawful tcar^^ of the ** imperfect sortf** as to furnish im- 
punity to the military engaged in it. 

2nd. That the instructions given to the Governor or chief 
officer of Canada, under the circumstances and situation of 
that colony, contained sufficient authority to legalize the at- 
tack ; or, if that be doubtful, then, 

3d. That the sanction by the British Government of the 
attack, supplied any possible deficiency in the instructions. 

4th. That the Executive Department of our Government 
has decided, tliat the relation in which Great Britain stands 
towards our Government, as to the affair of the Caroline, is 
thai o[ ^^ imperfect war;^^ and that *' individuals concerned in 
that transaction ought not, by the principles of public law, 
and the general usage of civilized States, to be holden person- 
ally responsible," and, 

6th. That such decision, by the Executive Department of 
our Government, is final and conclusive upon all the courts 
in the United Stales. 

It remains for us now to inquire whether the mode of relief, 
by habea>8 corpus^ sought by McLeod, ought, under the circum- 
stances, to have availed him. * 

Upon this branch of the case Judge Cowen, for the sake 
of argument, concedes to McLeod the impunity which he 
claimed, as being one of the military force who made the 
attack upon the Caroline, yet decides that he cannot be dis- 
charged upon habeas corpus, became ike grand jury have in- 
dicted him for murder. 

The principle advanced by the Judge is, that a man charged 
with murder by the finding of an indictment by a grand Jury, 
cannot, under any circumstances, be admitted to bail, or be dis- 
charged on habeas corpus. We readily concede that in a 
case where a person cannot be admitted to bail, he cannot be 
entitled to a discharge on habeas corpus. 

The Judge has cited several cases where applications were 
made to admit to bail persons charged with murder. The 


cases cited, however, are £^11 cases where the application was 
made brfore indictment ; and what is said by the judges about 
the effect of an indictment, as precluding the possibility of 
letting to bail, is mere dicta; that question not having arisen 
in a single case cited. But although Judge Cowen admits 
that his cases ** were all before indictment Jound,^^ he says the 
principle of refusing bail after indictment, for murder, " has 
never, that we are aware of, been departed from in practice 
under the English habeas corpus act." Had the Judge 
searched as diligently for cases in favour of this application, 
as he seems to have done for cases against it, he certainly 
would have come to a different conclusion as to the existence 
of authorities for letting to bail after indictment, whatever 
might have been his conclusion as to the true principle of law. 
Whilst the Judge has not been able to cite sl single case where, 
cifter indictment, the question of bail has actually arisen, we 
have been able to find several, where the question has not 
only arisen, but where the prisoner has been let to bail after 
indictment for murder and other high crimes. 

3 Bacon A^k 436, title Habeas Corpus : *' Also the court wnll 
sometimes examine by affidavit the circumstances of a fact 
on which, a prisoner brought before them by an haieas corpus 
hath been indicted, in order to inform themselves, on examina- 
tion of the whole matter, whether it be rea^onaile to bail him or not. 
And agreeably hereto, one Jackson, (4 Geo. III.) who had 
been indicted for piracy before the session of Admiralty on a 
malicious prosecution, brought his habeas corpus in the said 
court, in order to be discharged or bailed. The court examined 
the whole circumstances of the fact by affidavit; upon which it 
appeared the prosecutor himself, if any one, was guilty, and 
carried on the present prosecution to screen himself; and 
thereupon, the court, in consideration otthe unreasonableness 
of the prosecution, and the uncertainty of the time when 
another session of Admiralty might be holden, admitted the 
said Jackson to bail. 

3 East. 165, King vs. Marks. Le Blanc says : " This court 
have clearly a right to bail the parties accused in all cases of 


felony, if they see occasion, whenever there is any doybt either on 
the law or the facts of the case." 

Woodworth, J. in the case of Tayhe^ 6 Cow. 68, cites with 
approbation this rule of Le Blanc He says : " The court 
will bail whenever there is any doubt on the law or the facts 
of the case." 

It is true these were cases before indictment. But the rule 
is laid down without limitation ; and we can see no reason 
for limiting it to cases before indictment, especially where the 
prisoner shows " there is doubt on the law of the case," and 
more especially when he shows that " by the law of the case" 
he is innocent of the crime imputed to him. 

1 Bacon Ah. 353, title. Bail in criminal causes : " So if a man 
be convicted of felony upon evidence by which it plainly ap^ 
pears to the court he is not guilty of it,^^ he will be let to bail. 
Why, then, not let him to bail before conviction, ^^ if it plainly 
appears to the court that he is not guilty of it." 

6 Mod. 444, Capt. Kirk's case : Mr. Montague moved that 
Mr. Kirk might be admitted to bail, "for that he was very 
dangerously ill by reason of the badness of the air and the 
inconveniences of the prison." There had been an inquest 
by the coroner for murder, and also an indictment by the grand 

The counsel who opposed the motion for bail, said, " It is 
true your lordship has power to bail in treason or murder; but 
you will not exert that power unless it be in extraordinary 
circumstances, as in some cases that have been quoted, and 
especially in such wliere the prosecution is thought not to be well 
grounded.'*^ [Holt, Chief Justice.] " In this case I do not think 
the affidavits are full enough. It does not appear that by this 
imprisonment they are in danger of their lives." Here is 
no intimation that the indictment precludes all inquiry ; on 
the contrary, the refusal to bail is upon a full inquiry into the 
merits of the facts upon which the application is founded. 

In Cohens Entries, 364 to 366, are three cases, copied from 
the rolls of the court, where there had been indictments for 
murder^ and the prisoner aflerwards let to bail. 


1 Salkf 104. — ^J. S. being committed upon an indictment for 
murder, moved to be bailed. " Ol?* Rokesby and Turton were 
for bailing him, because the evidence upon the affidavits read did 
not seem to them sufficient to prove him guilty. Holt, Chief Jus- 
tice, and Gotdd, contra. The evidence does affect him, and 
that is enough. The allowing the freedom of bail may dis- 
courage the prosecution ; therefore it is not fit the court should 
declare their opinion of the evidence beforehand ; for it must 
prejudice the prisoner on the one side, or the prosecution oil 
the other." Here, too, the merits of the application were 
looked into ; and although bail was refused, it was not because 
there was an indictment, but because the court were equally 
divided upon the merits of the application. 

Judge CowEN cites a case on the same page as the above, 
to show that a person cannot be let to bail under any circum- 
stances after indictment ! and yet overlooked the one cited 
above ! 

The case cited by Judge Cowbn is the case of Lord 
Mohuns^ and even in that, it does not appear from the report 
in Salk. whether he had or had not been indicted! The case is 
referred to in 2 Strange^ 911, Rex vs. Dalton. The Chief 
Justice there said, " that the Lord MohurCs case was at Lord 
Holt's chambers, and not in court, as the book reports it ; 
and that the lords hailed him after indictment for murder ivas 

Another case may be added, of a person indicted for mur- 
der being let to bail. We refer to the late case of the young 
student, who was indicted for the murder of Professor Davis, 
at the University of Virginia. 

As to the right of courts to bail, there is no diflference be- 
tween cases of murder or the highest grades of manslaughter. 
— See Sutherland's opinion in Taloe's case^ 5 Cow. 55. 

Selfridge, indicted in Massachusetts for manslaughter, was 
let to bail iifier indictment. Goodwin^ indicted in New York 
for manslaughter, was, after one trial, and the jury not agree- 
ing, let to bail by Chief Justice Spencer. — 1 Wheeler's Crim. 
Cos. 434. 

Thus it will be perceived, that whilst Judge Cowbn is not 
able to cite a single case, where, upon application to bail after 
indictBunt for murder, the court has said the fact of an indict- 
wiaU tau condutice agaimst U, we have been able to cite several 
cases in which the application was made after indictment ; in 
some of which the indicted person was let to hail^ and in 
others refused. Yet in none of these cases is the idea ad- 
vanced that the indictntent precludes aU inquiry* In all of them 
the power is conceded, but not to be exercised, '* unless in 
extraordinary circumstances." All the cases to be found in 
which the idea is advanced that an indictment prechdes all 
tM^ry, are cases where no indictment had been found ; and the 
remarks of the judges upon that point are mere dicta^ and 
unworthy the character of grave authority. That the court 
have the power to look beyond the indictment, may be 
proved to the common sense of every one, by a few ex- 
amples : 

Suppose, upon circumstantial evidence before a grand jury, 
a person is indicted for the murder of another, and is arrested 
and imprisoned to take his trial ; suppose such prisoner 
should afterwards sue out a habeas corpus^ and upon being 
brought before Judge Cowbn, should make a prqfert of the 
supposed murdered man, in full life and vigour, his identity 
placed beyond all question ; would Judge Cowen say, there 
being an indictment by a grand jury precludes all inquiry , and 
you must continue in prison until a court shall be held for 
your trial ? Such are the doctrines of this opinion ! 

Suppose Robinson^ the murderer of Ellen Jewett^ should be 
again indicted by a grand jury, and arrested, and finally 
brought before Judge Edwards on habeas corpus, for a dis- 
charge, on the ground that he had been once tried for the 
same offence and acquitted. He produces the record of ac- 
quittal ; yet, by the decision of Judge Cowen, the Judge who 
tried him would refuse to look behind the indictment, would 
refuse a discharge, and remand him to prison to wait the sit- 
ting of a court, there to go through the form of producing 
before a jury the record of his former trial and acquittal ! 


Judge CowEN fancies that he has cited a case even stronger 
than the one we have supposed, of a second indictment of 
Robinson. He says : 

" In Rex vs. Acton, 2 Sir. 851, the prisoner had been tried 
for the murder, and acquitted. Afterward, 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." 

Now this case is stated by the Judge entirely wrong. The 
person was not arrested for the same offence. The defendant 
was the keeper of a prison, and was indicted hy four several 
indictments for four several murders, and the question on the 
trial was, whether a place called the strong room was a proper 
place to confine disorderly prisoners in, the four prisoners . 
having died whilst so confined. The jury acquitted the de- 
fendant. A single justice afterwards, upon a new information 
oi 9. fifth person having been put into that room, and dying, 
thought fit to commit the defendant again for o^fifih murder. 

The court refused to bail the defendant, and he remained 
until the Assizes, when no bill being found, be was dis- 

Thus, instead of being, as Judge Cowen supposed, a com- 
mitment a second time, after acquittal for the sam^ offence^ it 
was for an entire new offence. We cannot but express our 
surprise that the Judge should, even if he had found such a 
monstrous CEise, cite it with approbation. 

Suppose a person in 1816 had been arrested and indicted 
for murder and arson, committed in the attack on Buffalo, by 
the British, during the war. Suppose such person brought 
up by habeas corpus before the Supreme Court, claiming the 
impunity of a soldier in time of war. Could the court say, 
we are satisfied that you cannot be guilty of murder, but as 
the grand jury have found an indictment^ we are precluded 
from looking into the matter, and you can neither be dis- 


charged or let to bail, but must remain in prison until the 
proper court sits for your trial ? 

Such are clearly the doctrines of Judge Cowen. He 
says : 

** It is proper to add, that if the matters urged in argument 
could have any legal effect in favour 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 carpus, we should have no power ever 
to consider them as a ground for discharging the prisoner.'* 

Now, instead of such a rule prevailing, we have seen that 
in numerous cases, both in this country and in England, pri- 
soners have been let to bail after indictment for murder and 
other crimes of the highest grade. We have also seen " that 
after a man has been convicted of felony, upon evidence by 
which it plainly appears to the court he is not guilty, he will 
be let to bail." 

In the famous conspiracy cases in the city of New- York, 
after the Lamberts had, by writs of error, reversed the judg- 
ments against them, Hyatt and Mowet, who were under sen- 
tence and suffering punishment, by separate indictments and 
convictions, applied to the Supreme Court, and were dis- 
charged on habeas corpus, without being put to their writs of 
error to reverse the judgments. 

The true rule upon the subject of bail or discharge, after 
indictment for murder, undoubtedly is, for the judge to refuse 
to bail or discharge upon any aflSdavits or proof that is sus- 
ceptible of being controverted on tlie other side. When, however, 
the prisoner's evidence is of that positive and certain charac- 
ter that it cannot be ^^ gainsaid,^^ then the prisoner is entitled 
to be bailed or discharged, as in the case where the man 
supposed to be murdered is living ; where the prisoner has 
been tried and acquitted of the same offence ; or where the 
supposed murder was a homicide committed in a war between 
two nations. 

As applicable to the case under consideration, if the attack 
on the Caroline was authorized and sanctioned by the Cana- 


dian authorities and the British Government, the evidence of 
such authorization furnished by the British Government and 
the United States is of that conclusive and record character 
that it cannot be controverted at the trial. If produced at a 
trial of the indictment, it would show a state of war between 
the two countries of the " imperfect sori*^ stated by Rutherforth, 
but nevertheless a " lawful war^^ which furnishes, under the 
law of nations, an impunity to McLeod, a soldier engaged in 
it. If such would be the effect of that evidence on a trial of 
the indictment, then, on habeas corpus^ the same incontrover- 
tible evidence authorizes a discharge by the court. 

Another ground upon which the application for a discharge 
ought to have prevailed is, that our own Government has set- 
tled the character of this hostile attack. It has decided it to 
be an " imperfect sort ofvmr^'* and that " individuals concerned 
in it ought not to be holden personally responsible." That 
decision being, as we have shown, binding and conclusive 
upon courts, the prisoner ought to have been discharged on 
his habeas corpus. 

We here dismiss this subject, hoping, for the character of 
our country, that the judgment of the Supreme Court may be 
reviewed, and an opinion so unsound in all its parts, as we 
conceive Judge Cowen's to be, rendered nugatory as an 
authority for the future. 

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