#### *The People *vs.*McLeod.

During the possession of Navy Island, in the Niagara river, in the winter of 1837, hy *British insurgents,*(aided by misguided individuals of this country,) an expedition was fitted out under the direction of the *colonial authorities of Canada,*for the destruction of a *steam loot,*which was suspected to have been used in conveying warlike stores to the island. The boat was captured whilst moored on the American shore of the river, and burnt, and during the Í melee and American citizen was killed. *It was held,*that a British subject, who was charged to have belonged to the expedition, and was subsequently arrested, was liable to be proceeded against *individually*in the *criminal courts of the state of New-YorJc,*and *held to trial*on an indictment for *arson*in the destruction of the boat and for the *murder*of the deceased, not*369withstanding that the act of the colonial authorities had been subsequently avowed by Great Britain, and that *negotiations were pending between the government of the United States and Great Britain*on the subject of the invasion of our territory and its consequences.

Notwithstanding the alterations in the act relative to the writ of *habeas corpus ad subjiciendum,*allowing the facts set forth in the *return*to be *denied,*and *new allegations*to be made, and requiring the court or officer issuing the writ to dispose of the party as *the justice of the case may require,*the law in respect to the duty of the court or officer to look *behind, the indictment*as to the guilt or innocence ef the party, is not changed; they could not do so previous to the amendments, nor can they now. The want of jurisdiction may now.be shown by proofs aliunde, and *it seems*that matter arising since the commitment may also be shown: such as a reversal of a judgment, a pardon, or a compliance with the terms of the sentence under which the party was committed.

The statute requiring the assent of the court to the entry of a *nolle prosequi*by a district attorney, does not confer the power upon the court to *direct*a discontinuance without the motion of that officer.

Alexander, McLeod was indicted at the *Niagara general sessions,*in February, 1841, and charged with the *murder*of one *Amos Durfee,*on the 30th December, 1837. He was arrested, arraigned, and pleaded not guilty, and then committed to' the jail of the county of Niagara, to remain in custody for trial: A writ of *habeas corpus*was subsequently sued out, upon which he was brought before this court at the last May term. The *indictment*was also remdved into this court by *certiorari.*On the hearing, the counsel for the accused moved that he be *discharged*from custody, either by the entry of a *nolle prosequi,*or upon his -own *recognizance,*or by an absolute discharge ; and in support of the motion, read an affidavit made by him on 6th *May, 1841, in these words:—“ Alexander McLeod, [ *484 ] the defendant in this cause, being duly sworn, doth depose and say, that he has read the return of the sheriff of the county of Niagara, to the writ of habeas corpus, on which this deponent has been brought into this honorable court, and in relation to that return, and the facts therein contained, this deponent says:—

That in the month of December, 1837, and deponent believes about the middle of that month, a body of men, in number, as deponent believes, about 200 or 300, proceeded from the state of New-York, and took forcible and hostile possession of Navy Island in the Niagara river, and lying within the province of Upper Canada, and there organized and defended themselves in a warlike manner against the lawfully constituted authorities of the said province, and against the dominion of her majesty, the queen of Great Britain, and made war by the discharge of cannon, and in other ways, upon her majesty’s subjects at Chippewa, in said province.

That the said occupants of Navy Island, as deponent is informed, and believes to be true, were, to a considerable extent, composed of citizens of the United States, and were commanded by one Rensselaer Van Rensselaer, one of such citizens.

That, as deponent is informed and believes to be true, the said invaders *370were supported with provisions and arms, and whatever else they had for the purpose of the said invasion, chiefly, and deponent believes exclusively, from the United States, and by citizens and residents thereof.

That the object of this invasion of her majesty’s territory, as the same was then proclaimed, was to make a revolution in the said province, to cause the same to be separated from the i government of Great Britain, and to erect it into a new and independent nation by force.

That in order to repel the said invasion, and to prevent the said dismemberment of the British dominions, an army of about 2,500 strong, was assembled at Chippewa, by the authority and under the direction of the provincial government, as soon after the said invasion, as was practicable.

That between this army and the occupants of Navy Island, a frequent and sometimes a heavy cannonade was kept up.

*[**485 ] *That owing to the support which the invaders received from citizens and residents of the United States, the efforts on the part o£ the provincial authorities to dislodge them were for a long time fruitless they having retained the possession of the island until about the 16th day of January, 1838.

That on the 29th day of December, 1837, the steam boat Caroline proceeded from Black Rock or Buffalo, and having, as was alleged and believed, landed a quantity of military stores on Navy island, commenced plying between the said island and Schlosser, in the state of New-York, transporting, as deponent has been informed and believes to be true, to the said island, men and provisions and implements of war, for the support, aid and comfort of those who were there engaged in hostilities against the government of Great Britain.

That in the afternoon of that day, the said boat made two or three trips between the places last aforesaid.

That as deponent has been informed and believes to be true, the evening following, an expedition of seven small boats and sixty-three armed men, was fitted out at Chippewa, by the direction of Colonel McNab, (who was lawfully in command of her majesty’s forces at the last named place, and vested with full authority to do so,) and commanded to take the said steamboat by force, wherever found, and to bring her in or destroy her.

That as deponent has been informed and believes to be true, the persons who composed the said expedition, and who were all subjects of her majesty the queen of Great Britain, embarked in the said boats and- started off in search of the Caroline, and found her fastened to the dock at Schlosser, and there made a hostile attack upon her, by the use of swords and fire arms, and having expelled those who occupied her, destroyed her.

That as deponent has been informed and believes to be true, the said attack was made, between twelve, and one o’clock of the morning of the 30th December.

*371That as deponent has been informed and believes to be true, while the persons who composed the said expedition against the Caroline were engaged therein and acting under the orders they had so as aforesaid received from their superior ’'and commanding oficer, one Amos [ *486 ] Durfee, a man then employed on the said steamboat, was killed, by being shot through the head with a pistol or musket ball.

That the said Durfee, as deponent has been informed and believes to be true, was slain, if slain at all, by some one of the persons engaged in that expedition, and while engaged in accomplishing the objects thereof, and not by any other person, or in any other manner, or at any other time.

That this deponent is indicted in this cause for the crime of murder, in killing the said Durfee, on the occasion aforesaid, and lor being an accessary before the fact of such killing, with various individuals, but not for having any agency in the death of the said Durfee, at any other time or manner than as being one of the persons who composed and accompanied that expedition.

That as deponent has been informed and believes to be true, the act of destroying the said steamboat Caroline, together with the manner in which the same was done, and the conduct of the persons engaged in it, including the killing of the said Durfee, have since been approved and adopted by the national government of Great Britain, as a necessary act of self defence on the part of the authorities of the province of Upper Canada; and

That as this deponent has been informed and believes to be true, the Federal government of the United States, immediately after the destruction of the Caroline, opened a correspondence with the government of Great Britain in .relation thereto, and demanded reparation therefor, and that the said correspondence has not yet been brought to a close.

And in confirmation of the foregoing statements, the deponent craves leave to refer to the published correspondence between the governments of Great Britain and the United States—to the communications of the President of the United States to Congress and the accompanying documents, and to the annexed authenticated extract of a letter from Mr. Fox, her Britannic Majesty’s minister, to the secretary of state of the United States, together with the authenticated copy of the credentials of Mr. Fox, to this government, also hereunto annexed; and he prays that they *may be taken as part of this his answer to the alleged cause [ *487 ] of his detention and imprisonment, and as together furnishing the grounds of his claim to be discharged therefrom.

And this doponent further says, that he was not one of the persons engaged in the said' expedition against the Caroline, nor did he accompany the same, or take any part in'it, nor in the killing of the said Amos Durfee ; nor has he ever so stated either in form or substance to any person whatever.”

*372The counsel for the accused stated that the last paragraph of the affidavit was not intended to have any bearing on the questions now intended to he presented. They then read various public documents shewing the correspondence which had taken place between the *American*and *British*governments on the subject of the destruction of the steamboat Caroline, and the prosecution of the accused.*

[ *488 ] *The counsel submitted in writing the following points, which they said they should insist on in support of their application that the accused be discharged, and permitted to go at large :

*First.*The attack on and destruction of the Caroline was an act of public force, done by the command of the British government, and all the defendant did in it, if any thing, he did by command of his superior officer, *373and in obedience to his own government. For acts done under such authority he is not responsible, personally and individually, in any court of law whatever.

*374*Second.*The supreme court has jurisdiction to try the offence charged in the indictment, and may order it to be tried at bar. It has jurisdiction, therefore, to give advice and grant leave to the district attorney to order a *.nolle prosequi*upon the indictment. 2 *R. S.*330, § 1; 2 *R. S.*609, § 54; 3 *R. S.*845, *Revisers’ Notes,*

*375***Third. The right to enter such *nolle prosequi,*previous to the [ *489 ] enactment of the Revised Statutes, was alone vested in the district attorney or attorney general. It was then and now the exercise of the executive power of government, influenced by considerations of sound policy and wise expediency. The same reasons which would induce the law officer of the government to interpose and prevent a trial, ought to and will induce the ceurt to advise andjallow the same thing to be done.

**Fourth.*Redress for this forcible and hostile invasion of the [ *490 ] territory of the United States, the destruction of property, and the killing.of our citizens, was at an early day demanded of the British *376government, by the government of the United States, and the whole matter is still in the course of. treaty, with a view to a full and just settlement.

The state of New-York, therefore, cannot discreetly or lawfully [ *493 ] interpose its jurisdiction, and take cognizance of any portion *of this public offence against the entire American nation. ■ It is the exercise of an authority by the state, repugnant to the constitution and laws of the United States, and brings the two jurisdictions in collision and conflict. Its tendency is to thwart the constitutional exercise of the treaty-making power of the United States, and thus involve the two countries in war.

*jFifth.*By the constitution of the United States, the power to [ *492 ] *declare war, conclude peace, and generally to superintend the foreign relations of the country, belongs to congress or the gene*377ral government. The act in which McLeod is alleged to have participated, being an exercise of the public force of Great Britain, and of a hostile character, becomes the subject of reclamation, reprisal, and war, on the part of the government of the United States, as it shall see fit; or it may demand acknowledgment, reparation, or indemnity *for [ *493 ] the offence and injury, and thereupon acknowledge itself satisfied. Any interference of the state authorities will be and is incompatible with the exercise of these high powers.

*Sixth.*If the alleged offence were cognizable by the courts of the United States, the trial of the individual would be wholly incompatible with the friendly negotiations between the two governments, and alike unworthy of the honor and dignity of both.

*378[ *494 ] - • **Seventh.*Had the attack been made upon a post or an arsenal in the District of Columbia, or other place within the jurisdiction of the courts of the United States, and an indictment had been found in such court, the ground of discharge would have been the same then as now. If then the United States court ought to forbear to prosecute individuals, so ought now the state of New-Tork.

*Alvin*C. *Bradley*opened the argument for the accused, by [*495 ] remarking, that this prosecution was the first attempt *ever made to hold a man responsible to the municipal tribunals of *another**379*country,*for the obedience rendered by him to the authorities of his own ; and observed, that if it should be adopted here, and infused into the code of nations, no sagacity can predict the evils which will result to the whole civiliz" ed world. He then adverted to the circumstances of the case, and to the reciprocal obligations existing between governments and their citizens or subjects, of *allegiance*and **obedience*to the orders of [ *496 ] rightful authority on the one hand, and of *protection*on the other. The *Caroline*was destroyed by the order of the provincial authorities, and in effecting her destruction our soil was invaded by a friendly power; *380neutral rights were violated, demanding immediate and exemplary redress, but *neutrality*he observed, is a relation between *nations*only, they alone can observe or violate it; *individuals*as such can do neither. When under duress of allegiance, an individual of one nation violates the [ *497 ] Viglitj of another, the offence attaches not to the individual, but to the government of which he is perhaps the involuntary instrument ; and for whatever he may do in obedience to his sovereign and within the range of his allegiance, he cannot be held personally or criminally responsible to the municipal tribunals of other nations. If the act be injurious to another state, that is a matter he may not look into to excuse [ *498 ] his disobedience ; to his government he has ceded *the control of his conduct in this respect, which is to judge, whether the act be right or wrong, and that judgment is his justification. He then proceeded:

*381Whafc then is this case *1*Is it denied that the affair at Sqhlosser, was an armed invasion of our soil ?—denied that the invaders were a part of the Canadian public force ?—denied that they came by command of the provincial authorities ?—denied that the power to give this command had been *previously conferred, and the exercise of it subsequent- [ *499 ] Iy ratified by Great Britain ? Hone of these do, or will the prosecutors question. When the command came, then, were not those to whom *382it was addressed bound to obey ? Did not that command as between them selves and their sovereign, put them on their allegiance ? Volunteers or no volunteers, undoubtedly it did. Are they criminal then ? Mis- [ *500 ] applied as it may have been, and often will be, the principle itself *of 1 submission to constituted authority, acting in self-defence, and repelling lawless invasion, is sacred—and never yet, even in its wildest errors, has been held a crime. No! wrong as may have ■ been their fearful errand, *383the destroyers of the Caroline started on it, that* gloomy night, led by no motive which any municipal court can hold to be malice aforethought, or instigations from the source of all evil, but by that highest constraint known to civilized man—the duress **per*patriam,—that compul- [ *501 ] sion by which nations stand,—to which they owe all that is valuable in public order,—all that is splendid in public glory, and without which they would crumble down and disband, and mankind be thrown again at large, accountable to no superior and restrained by no law.

*384The whole transaction,—what is it but a transgression by one [ *502 *]*independent nation upon another ? By what code then, *is it to be tried ? By that and that alone which defines the rights, and punishes the wrongs of the communities of the world.

*385But the sanctions of this code,—are they administered by the municipal courts of Hew-York ? Ho. These are a part of the machinery devised to , ensure domestic, not international justice. They are framed to deal with citizens,—individual offenders who set up business for themselves and *do crimes on their own account. Examining magistrates [ *503 ] commit not for wrongs done by one independent community upon *386another. The juries hy whom indictments are found, are the grand inquests, not of nations, but of their own particular county. No: The tribunals for the correction of international wrongs begin at a different place, proceed on different principles, are guided by different rules, and in whatever [ *504 ] else they may result, they do not result in bringing the *issue to trial before a jury, who would be compelled by their allegiance, *o take side with the country on whose injuries they would be called to deliberate.

*387Even then, if New-York were an independent nation, over this matter her tribunals would have no jurisdiction. But she is not. So far as Great Britain is concerned, she is but a fragmentary portion of a nation. She has no external relations; can make no treaties ; cannot send or receive *ambassadors, not even surrender to Canada a poor trem- [ *505 ] bling fugitive from justice. How then can her courts take cognizance of national wrongs ?

But we are told an indictment has been found. But can an indictment confer jurisdiction ? Consent cannot—a plea of guilty, would not—a stat*388ute of New-York in a case like this, or of the United States, could not.

How can an indictment then ? What *is*an indictment ? Simply [ *506 J the ^declaration in a criminal suit; and who ever heard that a defendant in a civil suit, arrested by process from a court having no jurisdiction, could not be discharged after declaration filed ? True, the indictment has been found by a grand jury. But if the court had no jurisdiction before, how can a grand jury, a part of its own machinery, give it ? It is the law and the crime which confer jurisdiction; and if New-York has *389not the supervision of international transactions, how can an indictment '’give it ? What mighty magic has this document, that [ *507 ] it is of force to hold the prisoner in confinement against law— against the constitution—making the court powerless to discharge, though having no jurisdiction of the crime ?

*390[*508 ] Another objection to a discharge is, that Durfee was not killed on the boat; and that his death was not necessary to her capture, and therefore, the killing of him exceeded the command. Whether his death were necessary or not is *unknown. But what if it were ? What was the nature of that invasion ? The remonstrance of Mr.^Stevenson tells —the negotiations between the governments tell—it was a hostile invasion ; an entry of our territory with an avowed public force in defiance of our laws, and under the authority of a foreign government. What is that but war ? Temporary indeed, but yet war ; and while it lasted, just as much so *391as that of the revolution, or the one which followed it. If the *force be public, (was this public ?) and put in motion by nation- ■[ *509 ] al authority—(was this so moved ?)—and exert itself by armed aggression—(was this so exerted ?)—it is then war. Will they contend that it was peace ? Hot the amount or continuance of force, but the authority by which it is moved, gives it character. Our minister at St. James calls it hostility, open hostility and undisguised—and when this is committed by an independent nation, who will say that it is *peace ? [ *510 ] And if it be war, who ever before heard—who will ever hear again, that excess of violence gives the municipal tribunals of the invaded nation, jurisdiction of the offence.

*392Invaders owe the municipal laws of the state they enter no obedience, because they owe the state none. The flag they march under shows the country they serve. The law under which they come is found in that chapter of international law devoted to war ; and under that or some [ *511 ] *other of the same code must crimes be punished. Excessive violence ? The very nature of war is outrage. Every evil passion common to man and the tiger is forth. What, then, if Durfee were needlessly slain ? The transaction, still, is national: and Great Britain must answer the consequences. Whether he fell a mile or a yard from the boat, or on it, is, then, quite immaterial.

*393The whole prosecution is founded on the fundamental *error, [ *512 ] that the subjects of one state acting within the territory of another, in obedience to their sovereign, are responsible to the municipal laws prevailing where the act is done. But what obedience owes the American minister at St. James, or the humblest servant in his household, to the laws of Great Britain ? He is there on the business of his sovereign—he is bound by laws undoubtedly, but not of her majesty—she has none for him. So in all cases. Foreigners come for their country or for themselves.

*If the latter, the municipal laws reach them—if the former, oth- [ *513 ] erwise. The affair is national, and to their nation belongs the liability.

Why, then, should not the prisoner be discharged ? For what should he be put on trial ? To find the facts, showing want of jurisdiction ? Here they are—undisputed, indisputable—found already. But it has been said, that his trial is necessary to the dignity of the state. Dignity of the state 1 What dignity is there in injustice ? What dignity can she derive from her courts holding in durance a man over whose conduct they have no jurisdiction ? What dignity can she hope from her tribunals usurping cognizance of the affairs of nations ? Dignity ! not because his release has not been requested, but demanded. Boons are craved, favors asked, but rights demanded ; and if the courts have no jurisdiction in the case, I ask if his release be not a right to be demanded ?

It is now some twenty years since the occurrence of an event at the other extremity of the Union. Whatever analogies it may have to the affair at Schlosser, this is not the place to urge them, or to repel. Florida was invaded ; and I am willing to grant here, what I would not elsewhere, that the transaction was illegal, and that the chieftain by whose orders it was done, exceeded his authority, and that he merited all *that [ *514 ] was charged against him by the illustrious son of Kentucky, whose eloquence, like the sacred bolts of Ancient Jove, sometimes hallows what it strikes. When that army was assembled, and their chief, with the laurels of Hew Orleans fresh on his brow, placed at their head, their country said to them—for it is hardly a figure to give nations a tongue, they speak by their laws, by their constitutions, by their authorities, by the very situations in which they place their citizens and then leave them in silence—she said, “ Him *we*trust and do *you*obey. He will show you the foe; when you find *394them, this banner, while it is the covenant of our protection, let it be the incentive to your duty.” The invasion is over, the army returns; one of the gallant men, a private, suppose, ventures to Spain, is arrested and the municipal courts go about to try him for murder. Who says, who dares say, that his release would have been craved as a boon, or even asked as a favor. Would our minister have gone crawling to the head of Foreign Affair, crouching before any dignitary of that nation, trailing the stars and stripes in the dust, and humbly implored his discharge ? No : that soldier had preformed his part of the compact. He had no longer a duty, but a right. He had obeyed—the price was his due'—that price, protection. His right was high and holy—it would have reached forth and laid hold on the national faith, the national honor, and clutched every sinew of the national power. Begged as a boon, would his release have been? No: demanded as aright. The same eloquence which had flashed around his Chief to destroy, would have beamed over that distant and lowly private, to illume. No gathering of navies—no mustering of armies would there have been ? If the country had not torn open that man’s dungeon, or planted her banner on his grave, she had deserved to be blotted from the roll of nations. Dignity to try McLeod ! Call it rather the sacrament of infamy—the baptism of disgrace.

This, I repeat, is a national affair ; the wrong was national; and such be the redress. To the authorities at Washington and St. James it belongs. Let them settle it; amiciably if they can;—if not, let them arbitrate.

This failing, let them muster their armies, call home their navies, [ *515 ] and *go to trial at the Grand Assize of Nations, and take the solemn adjudication of God as to the right. But never let a nation, calling herself civilized, just, humane, and Christian, wreak her vengeance for a national wrong on an unprotected and humble individual, guilty of no crime but obedience to his country.

The prosecution then has these results. It seeks to make the municipal courts of New-Tork exercise jurisdiction of the right of nations.

It deprives the national government of the power and control over foreign relations conferred on it by the constitution, and drags them down to adjudication by the municipal laws of the state.

It seeks to thrust the municipal courts between the duty of subjects of foreign nations and their own government.

It violates the independence of nations; for what is that independence but the right to be governed by no law save that by which alone they are bound—the Great Common Law of the world.

All these great interests are violated by the principles on which this prosecution is based ; and to hold the prisoner guilty of murder or any crime, would, as I said at the outset, produce in international law a revolution, the extent of which no human sagacity could foresee. And this it is which *395gives the present controversy a solemnity far higher than belongs to any considerations of mere war or peace. War, indeed, may come, foreign commerce be destroyed, frontiers desolated, cities burned, and the land filled with mourning. But it cannot last; peace nust return with its blessings. The mourners will find solace, if nowhere else, at least in the tomb ; the desolate places will blossom again; from the ruins of cities will spring new mansions nobler than the old, and commerce take up her march again on the deep. Hot so however, with the everlasting blight of an evil principle, sanctioned by the highest courts and infused into the code of nations. The doctrine that a man may be made personally or criminally responsible to the municipal tribunals of another country, for the obedience he renders the authorities of his own, if fit to be established here, is worthy of adoption *everywhere, and of a continuance through all genera- [ 516 ] tions. If it be right for this country to enjoin upon the subjects of others, disobedience at the peril of life, it will be right likewise for those others to adopt the same rule towards this nation and among themselves. And let it once be so settled, and every soldier and sailor and citizen on earth, will, from that moment, find himself amid new liabilities, and ensnared by new perils. If he disobey his own government, he is punished with stripes, with infamy, with death; and if he adhere to his allegiance, he is subjected to fines, the dungeon, or the gallows. Meanwhile, that other doctrine, unknown to barbarians, and first seen on earth only when civilization began to dawn, that national wrongs will take no atonement which is not national also, will have become greatly modified, if not altogether repealed. And then, how many of the ties which now bind all in harmonious subjection to lawfully constituted authority, can only be fancied by remembering how the utter imposibility of serving several masters of conflicting interests, produces general lawlessness, and ends in disobedience to all. And what atrocities would not creep into the practice of nations can only be foreseen by reflecting how national vengeance wreaked on private helplessness, stirs up mankind to revenge. And how much of social order would then remain unshaken, can be known only to that mind which could behold the combined operation of these fearful causes as they act and react in the ever quickening progress of international exasperation.

But no fear. It can never prevail. If adopted here, not surer is sunlight on the morrow, than that it will be resisted by a war—a war founded on good faith—that faith which is at the bottom of the social compact—the faith plightéd by a government to her citizens of protection to be given for obedience rendered—of every kind of faith the most sacred. And though all know who *they*are that are thrice armed, and all know too they are not those whose adversaries have their quarrel just, yet whatever may be the result of that strife, the first other attempt to enforce the same principle *396will be met by a like resistance. It can never be enforced; [ *517 j *never. All civilization will rise against it, and it will be arrested by the armed might of the world.

*Jonathan L.*Woods,

(district attorney of Niagara county,) after reading several affidavits, which had been made previous to the.commitment of the accused, tending to show his guilt, submitted the following points, as those upon which the prosecution would insist in opposition to the motion for a discharge.

*First.*It appears by the sheriff’s return that the prisoner is imprisoned and detained on an indictment for murder, to which he has pleaded not guilty, and this court cannot investigate the truth of such indictment or plea.

#Second. The matters set forth in the allegations of the prisioner, do not tend to establish that he was exempt from the arrest, nor that his commitment or detention are or have been illegal; but that the same, so far as they are pertinent to the issue between the people and the prisoner, apply exclusively to the question of his guilt or innocence, which is not now before the court.

*Third.*The attack on the steamboat Caroline, a boat owned by a citizen of the United States, unconnected with the insurgents on Navy island, and navigating the waters of the Niagara river, under a license from the Uni- ■ ted States government, and engaged, for aught that appears, in a lawful business, was made whilst she was moored at Schlosser, in the state of New- , York, and without the jurisdiction of the province of Upper Canada.

*Fourth.*Neither the governor of Upper Canada nor Col. Allan Me Nab had any right, power, or authority to send men into this state to destroy the boat; and all acting under such unlawful orders are individually responsible for their acts.

*Fifth.*Amos Durfee, for the murder of whom the prisoner stands indicted, was a peaceable citizen of the United States, and within the jurisdiction of this state, unconnected with the insurgents on Navy island,' and guilty of no offemce against the laws of this state or the United States, [ *518 3 nor *against the rights of G-reat Britain, and was killed upon the main land in this state, after having left the boat, and flying, unarmed and unresisting, from the assailants after they were in possession of the boat, the assault upon whom, by the prisoner, was neither directly or necessarily connected with the destruction of the Caroline, nor necessary to the defence of the territories of Great Britain, nor the protection of her subjects.

The principal scope of the argument of the district attorney was to show that the court had no authority under the act relative to *habeas corpus*to discharge the accused. He called the attention of the court to § 40,41, 45 *397and 50, of the 2 R. S. 469. He also contended that the invasion of our territory was an unauthorized act on the part of the provincial authorities of Canada ; there was no pretence that they acted under the orders of their government at home, and the subsequent ratification by Great Britain could not excuse the act. It is said, on the other side, that the invasion of our territory created a state of war : neither of the governments have so considered it, and it cannot be allowed to the prisoner to assume a position which his government does not claim. If the act on the part of the provincial authorities was without orders, all concerned in the transaction were in no better plight than the misguided men, who from our shores invaded Canada, and were condemned to ignominious punishments, without complaint on the part of our government, or claim that they should be set at large. Again: he said that if, upon the most liberal construction to be given to the acts of the invaders, tb ey might be excused for the destruction of the boat, no excuse existed for taking the life of the deceased; he was killed on shore after he had left the boat; and the only mode in which the question could be raised whether the prisoner could claim the protection of his government, was by objecting to the jurisdiction of the court on the *trial*of the indictment.

*Willis*Hall, (attorney general,) on the same side.

*The prisoner stands indicted for murder, on which indictment [ *519 ] he was arraigned and pleaded not guilty. Notwithstanding this a motion is made, that without any trial of that issue, and without disposing of the indictment, the prisoner be discharged from custody. There is no pretence that he was informally or illegally charged in the indictment. No pretence that the return of the sheriff shows he was illegally committed, or is' illegally detained in custody.

By the common law, as well as by statute law, both in England and in this state, an indictment must be disposed of by a motion to quash for defects apparent on its face, or by a trial of the record, when issues of law are presented to the court, or by a verdict of a jury, or by a *nolle prosequi.*I know of no other way in which it can be ■ disposed of; I have heard of no other way, and will ask my learned friend, when he is closing his argument, to point out to the court some precedent in which an indictment having been found, and the prisoner having pleaded to it, was afterwards disposed of, except by one of the modes which I have mentioned : and the present motion is not any one of them. This is a motion altogether without a precedent, a mere experiment, the first of the kind that was ever made ; and I trust, •f the view I take of the law is the right one, the court will pronounce on it in such a manner that such an experiment will never be repeated.

*398Our *first*position is, that this court, sitting as a court of law, cannot on this motion look beyond the record of the indictment and the plea.

By the laws of England, a person indicted for murder would not be brought before the court of king’s bench. Nor would a writ of *habeas corpus*be granted at all under such circumstances. I refer the court to the statute of habeas corpus, and particularly to the act of 31 *Charles II. ch.*2, of which England so much boasts, and of which we boast also. In that section which makes it imperative on the court to grant the habeas corpus, cases of this kind are expressly excepted. In the more recent act, 56 *Greo.*[ *520 ] *III.*whch extends *the writ and makes it the duty of judges to grant it in vacation, cases of a criminal character are excepted, and they are not required to issue it in favor of a prisoner charged with a criminal offence. If, therefore, the prisoner thus legally charged with murder was to be tried in his own country, he'would not be allowed to come before a court and be heard on a motion for his discharge. When a return is made by the officer in England, the court gathers the facts from the return, and by those facts determines whether the prisoner is legally arrested. Nor will they allow any other facts to be presented to them beside that return. In the case of *Swallow*v. *The City of*London, *Sid.*287, the plaintiff was committed for refusing to take the oath of alderman. This was returned to the habeas corpus, and the plaintiff desired to have liberty to plead to the r'eturn, and offered to shew that he was an officer of the king’s mint, and privileged from all other offices. But the court remanded Swallow and refused bail, but directed that the privilege should be suggested in the crown office ; whereupon the attorney general prayed for a writ' of privilege, &c. to which the city answered. In *Gardner's*Case, *Cro. Eliz.*821, Gardner was committed on the statute giving a penalty of ¿610 for carrying hand guns, &c. contrary to statute. He was removed by habeas corpus to the king’s bench, and the return disclosed that he was a special bailiff, having a right in the execution of his office to carry such weapons—the prisoner was not discharged by the court, but all the facts were by direction embodied in a plea of justification, which was confessed by the prosecuting officer, and the party discharged by judgment of the court upon the record. So also the act of 56 *George III. ch.*100, extends the old provisions of the habeas corpus, and allows the party to go beyond the return; but excludes cases where the party is criminally charged. Amongst other cases decided in England, is that of *Leonard Watson,*9 *Adolph, & Ellis,*731. This was a case relative to some of the rebels in Canada. When they were at Liverpool, a writ of habeas corpus was taken out, and it appeared that the [ *521 ] officer in whose ^custody they were, made á false return, and the question was how to get at it. The chief justice said, “ how far *399the truth of this return may be canvassed, I do not say. ” The court knew that there was a wrong return, and yet they were not willing to allow the parties to show that the return was false, on the motion to discharge ; but surmounted the point by granting a rule to show cause why the returning officer should not be attached for his false return. In *Bushnell’s case, Vaughan’s Reps.*157, it was held, the prisoner is to be discharged or remanded barely upon the return and nothing else, whether in the K. B. or common pleas. If, therefore, the queen’s bench, in England, should go beyond the requirements of their statutes, and grant the writ of habeas corpus to a person charged as the prisoner is, no evidence would be received except what appears in the return of the sheriff.

It is admitted that our statutes have gone somewhat further. By 2 *R. S. p.*569, § 48, the prisoner may deny the facts stated in the return, and may allege other facts to show that he is entitled to his discharge. But it is denied that this section contemplates the case of a prisoner after indictment; and for two reasons: 1st. An indictment is in the nature of a judgment or decree of a tribunal having exclusive jurisdiction of the subject matter. This court cannot alter or amend an indictment. It may quash for insufficiency in law, because it may see before as well as after trial, that the offence is not legally or sufficiently charged. But neither before or after trial can it question the truth of the finding of the grand or petit jury as to facts. To discharge the prisoner on matters of fact, is to try the indictment; which this court, without a jury, has no power to do. 2d. The section referred to allows both parties to introduce counter allegations and proofs. But the evidence on which the indictment is founded is required to be kept secret by the grand jury, 2 *R. S.*725, § 31. No such investigation, therefore, as the forty-eight section above referred to contemplates, can take place after indictment. In this case, the testimony taken before the grand jury has not been presented to the court. The prosecuting officer has not felt himself authorized thus to make it public. *This objection [ *522 ] may be illustrated by two or three English cases. In *Rex*v. *Dalton,*2 *Str.*911, the defendant had the misfortune to kill his school fellow. Return to habeas corpus before chief justice, that prisoner was committed by the coroner for manslaughter ; prayed for bail. Ch. Justice. The return of the coroner is no reason, for if the depositions made it murder, he would not bail him; or contra, if they amounted only to manslaughter, he would bail though the coroner’s inquest found it murder. The distinction is between a coroner’s inquest when the court can look into the depositions, and an indictment when the evidence is secret. See also *Lord Mahon’s case,*1 *Salk.*103. Bail may be allowed after a coroner’s inquest finding murder, but not after indictment; because the coroner sometimes proceeds upon depositions taken in writing, which we may look into ; but if *400one be found guilty of murder by a grand jury, the court cannot take notice of their evidence which they by their oath are bound to conceal. In *Rex*v. *Bethall,*1 *Salk.*347, the court refused to discharge on habeas corpus, although the commitment held nought, but left the prisoner to his writ of error. The defendant had been indicted. If these cases are correct, if it is true that this court cannot look behind the indictment, and see the evidence on which the grand jury found their verdict, as a matter of course, the provisions of the statute, cannot be extended to a prisoner after indictment, and the argument would end here. The sheriff shows a regular and legal return, and that ends the case in this court.

But the court has intimated a desire that the facts on both sides should be spread before it, that it may decide upon the whole matter, in case it should come to the conclusion that it may legally look aside of the record. We have therefore reluctantly followed the learned counsel for the prisoner in presenting such facts on behalf of the people as were hastily within our reach, without looking into the minutes of the grand jury. In this view of the case, and assuming that the court may determine to look beyond the record, our *second*position is, that the court can consider no facts but such as go exclusively to the *'illegality*of the prisoner’s arrest or deten- [ *523 ] tion—not *to his guilt or innocence. What is the whole scope of the case as appears from the facts presented ? A strong excitement existed along the borders, and men on both sides were arrayed against each other. A rebellion broke out in Canada, and some of the rebels who fought there, fled here, and excited the sympathies of some of our citizens. They went back to Navy island, which is beyond our jurisdiction, and some of our citizens followed them, and there were great apprehensions of violence, both in Canada and in our territories. Our governments at Albany and Washington were doing everything they could to prevent an infringement of our obligations with England. The district attorney of the United States, and of this state, and all the officers of the government at Albany and Washington evinced the greatest desire to prevent any collision between our citizens and the subjects of England; and the letter of Mr. Rogers of Buffalo, the district attorney, distinctly said that the crisis was passed, that our people were quiet and that the patriots had left there, and that the danger was in a great measure overcome. Under these circumstances, this midnight invasion of our territory was made, and Durfee, one of our citizens, was murdered on our own shores. And after this murder had remained for three years without any explanation or satisfaction from England, the hand that committed the deed, the man that said he killed Durfee is found within our jurisdiction, brought before a magistrate and proved om the strongest evidence ever brought before a committing magistrates, guilty of murder; and the magistrate commits him. And I might say more; that at the time *401every effort was made to have him discharged. He was urged to produce witnesses to prove an alibi that the magistrates might let him go ; but he failed to do it. There was no bitterness of feeling evinced towards him, no spirit of revenge or hatred manifested, nor any other disposition shown, but that the laws of this state should not be trampled on with impunity.

After the prisoner was arrested, the British government for the first time avow that he was acting under the orders of his government. The question is, if the court will go *beyond the indictment, [ *524 ] what facts will they consider. We contend that they cannot consider any facts *aliunde,*except what go to' the illegality of the commitment, or detention; not to the guilt or innocence of the party. The words in the statute, “ entitled to his discharge,” are not equivalent to the words *not guilty.*Sections 42 and 43 restrict the court to inquire as to the legality of the commitment; but an inquiry as, to the legality of his detention by no means involves an inquiry as to his guilt or innocence. An innocent man may be legally arrested and detained for trial. The distinction is a broad one, and essential to be made. If not made, where is the court to stop ? In every case of murder the party can allege that he is an innocent man, and claim to be discharged, without trial by jury. If the court can examine into the innocence of any party, nothing can prevent them from examining into the most complicated case of guilt. But the court has no such power. To illustrate my argument, I will suppose the case of an ambassador from a foreign power being arrested and committed, and that he appears before the court on habeas corpus, and says he is the ambassador of a foreign power, sent here by virtue of treaties, and not subject to our laws. The court may allow this fact to be proved, because it shows that the party is illegally detained, and has no reference to his guilt or innocence. But suppose a man to kill another in self defence, and that he was indicted for murder, and came before a court, and offered to show that the homicide was in self defence, could the court listen to him ? Suppose that he was a peace officer, and while making an arrest was necessarily obliged to take a man’s life, could the court, in such a case, listen to him ? Clearly not. Suppose a sheriff to execute the sentence of the law on a criminal at a different place and manner -from that stated in his warrant ? Suppose he is indicted for it, and brings the record, and says that it was in pursuance of the sentence of the court he did it, could the court listen to him ? How could the court, in such a case, enter into any inquiry as to whether the sheriff had an excuse for acting as he did ? That would be a question only for a jury. It is therefore evident, however plain the case, this court cannot listen to any matter of guilt or *inno- [ *525 ] cence. If the governor of this state calls out the militia to execute the law, and one of them kills a citizen, it may, or it may not be mur*402der, according to the circumstances; but suppose the party indicted offered to present those circumstances to the court, would the court listen to him ? Suppose the governor should send a certificate that the soldier killed the man by his order, would such a document produce any sentiment but astonishment ? and should we be called on to pay respect to such an exercise of authority on the part of a foreign government, as would not be tolerated, coming from the executive of our own government ?

Our *third*position is, that the return of the sheriff shows a legal cause for the commitment and detention of the prisoner, and no fact *aliunde*has been disclosed showing that he is entitled to his discharge. Neither the committing magistrate nor the grand jury could have done otherwise than they did. Enough appears before the court to show that they did no more than their duty.' After the party was arrested and the witnesses examined, time was given the prisoner from the twelfth to the eighteenth of the month to procure his witnesses; and every facility was extended to him for the purpose, and after calm consideration, on the part of the magistrate, he felt bound by his oath to detain him. He remained in that situation until the facts were placed before the grand inquest. And I will hero say that the grand jury that indicted, him was not made up of “ patriots,” or “ sympathisers” but of some of the calmest and most unprejudiced men in the country, as cool and dispassionate as the grand inquest of any county inNew-York; though living on the borders in Niagara county, they had no feeling to induce them to find a presentment against the prisoner, unless his guilt was fully borne out by the strongest facts. And the foreman of this grand jury was a member of the society of Friends. (Counsel for the prisoner denied this.) The gentleman on the other side says I am not correct, that he was not the foreman. But he was at least one of the grand jury who found the bill of indictment. And this man was one whose principles and nature made him abhor the shedding of human blood. But to his con- [ *526 ] science the act had been so clearly *proved, and the evidence of it was so strong, that in regard to the oath which he had taken on the inquest, he could not *hesitate to*say it was a true bill. No fact now known to this court, was then unknown to the grand inquest, except the recently avowed order of the British government. What effect is to be given to that order ?

We aver that the recent avowal of the British minister that the prisoner acted under the orders of his government does not render the original commitment or the present detention of the prisoner illegal. The order can have effect but in one of two ways. First, as a justification of the prisoner to establish his innocence; or secondly, admitting that he is guilty, as charged in the indictment, as a protection to exonerate him from the operation of our laws. In the first point of view, as a justification of the prisoner, *403it is a fact exclusively for the consideration of the jury, and comes not in avoidance of the indictment. The indictment charges him with having maliciously killed the man, but the avowal of the British government says he did it in discharge of his duty. It is therefore a fair issue for the jury. If he did it from duty, and not from malice, I presume the jury will find him not guilty of murder. I presume, if the order of the British government is to have any effect, it must be in this way. I see no other way. I can see no reason why a foreign order can have any effect different from an order of our own government; and if such a fact could protect one of our soldiers, in order to do so it must be placed before a court and jury, and not before a court to be tried as a mere abstract question of law. If it is to have any effect, it is a matter for the jury to consider, whether the prisoner out of his own malice killed Durfee, or whether the order gives the murder such a color as it receives in the language of the avowal by the British government. The ground on which the British government makes the demand for the release of the prisoner is, that the transaction for which he was arrested, “ was of a public character, planned and executed by persons duly empowered by her Majesty’s colonial authorities to take any steps, and to adopt any acts which might be necessary for the defence of her Majesty’s territories, and for *the protection of her Majesty’s subjects, and *consequent-*[ *527 ] *ly*they were doing *their*duty, &c.” If I understand the effect intended by this, it is to put the transaction on the ground that the prisoner was not guilty of any criminal act, but was performing an act of duty. And if it were his duty to kill Durfee, it was consequently not murder ; and the jury will so find it. This alleged question of duty clearly involves a matter which must go before a jury, to try whether he was right or wrong; but cannot be a «proper question for the decision of this court. And the question of law as to whether he was legally arrested and detained, had nothing whatever to do with the question of duty.

There are insuperable difficulties in the way of the inquiry whether the order of the British government is a justification of the prisoner. The court must first decide whether the order itself was valid, or whether it was illegal and void ; and whether, if void, it can justify the prisoner. These are questions of law which this court may decide when all the facts are presented. But there is a third most material inquiry—if the order is adduced as a justification or proof of innocence—which this court cannot entertain ; has the prisoner been guilty of no *excess ?*has he not gone beyond the order or aside the order ? This is most emphatically a question of fact, and can be disposed of only by a jury. This is a fatal objection to this motion on every ground on which it can be placed, and renders a trial by jury absolutely indispensable. If the prisoner had been indicted for executing a similar order on British soil, he must, by the laws and usages of Eng*404land, have been tried by a jury. In the case of *Gardner, Kelyng's Rep. p.*46, Gardner and nineteen others were -indicted for breaking open the house of Hutchinson in Cheapside ; and the evidence was, that Darlington, the secretary of state, by direction of the king, made out an order to arrest certain men, and Gardner heard they were then holding a .meeting at Hutchinson’s house. Some of the soldiers broke open the house, and some took away articles from it. Here was a case where soldiers, acting under the order of their own government, were indicted. There was [*528 ] no objection interposed that they had acted * under the orders of the secretary of state. The court did not obey the mandates of the executive, but opened the law books and laid down and carried out the laws. Here was a case in England, somewhat similar to the one that occurred here. There the party arrested men illegally, broke open doors, and stole away articles. This was not in pursuance of their order; neither was the killing of Durfee in pursuance of the order to destroy the Caroline. If then, the motion now beforet he court prevails, you will be administering the law to the prisoner, not as it would be administered to him in England, or as you would administer it to ourown citizens acting under the order of an executive officer in our own country. And I will ask the counsel to show that the order of a foreign executive should have more efficiency when executed by foreigners on our own territories, than it would have when executed by our citizens on our own soil, or by the same foreigners on their soil.

Let us now view the order in the only other way in which it can have effect, and the only way in which it can be considered by the court on this motion, viz.: as exempting the prisoner from the jurisdiction of our laws and protecting him from trial. If the court can go behind the indictment *it*must discharge the prisoner if satisfied of the truth of three propositions; 1st. That the avowal of Mr. Fox is conclusive evidence of the order. This proposition will not be *contested.*2d. That the order is set forth in the avowal with sufficient particularity to show that it covers the act for which the prisoner is indicted; and 3d. That an order of a foreign government can legally protect a murderer from trial in this state. As to the second proposition, the order in the letter from Mr. Fox to Mr. Webster is not sufficiently definite for the court to act upon. The letter says that the transaction for which the prisoner has been arrested was “ planned by persons empowered by her Majesty’s government.” Was the transaction which these persons planned the murder of Durfee ? Such a supposition is absurd. What it was we are left to guess, and without looking to public rumors for information, this court cannot know what that public transaction [ *529 } was. We know from public rumor *that it was to destroy the Caroline ; but we have not the authority of this, letter for it. The court must therefore see, from this document it is not sufficiently defi-

*405nite that the transaction it speaks of, is the occurrence for which the Grand Jury have found their indictment. It also says that they were authorized to take any steps necessary for the defence of her Majesty’s subjects. Can this court decide that the murder of Durfee was necessary for the defence of her Majesty’s subjects *1*Thus far the court must go. They must say that the murder was necessary under the order for the protection of her Majesty’s subjects. The third proposition, which is the main point of the whole discussion, is that the order of a foreign government will protect its agents from trial, though guilty of murder. We assume that the charge is true. Ho matter what his guilt. We will not inquire into it, and must assume that he is guilty. And we must then assume that the order of a foreign government can protect him from a trial in this state, although guilty of murder. The proposition relies on the order, not as a justification, but as a protection.

In connection with this proposition, and before entering upon its discussion, it is proper to answer some of the positions taken by the learned counsel who addressed the court in the opening of this case. Some of those positions are true, but most of them entirely misapplied. It is asserted that a man cannot be held personally responsible for what he does by order of his sovereign. That, generally speaking, is a true proposition, but it is only true as regards his own sovereign, and so far as the order is duly carried out, and not deviated from. It can be inquired into between him and his own sovereign, if he went beyond the order. But between him and any other sovereign it has no application. The counsel said that the individual would be subject to punishment if he did not obey his sovereign; but that has no application here, as the prisoner was a volunteer and a citizen, and not acting involuntarily or under compulsory orders of his sovereign. *Vat-tel*says that those not belonging to the army are not recognized by the usages of war, and if the peasantry mix in war they are not entitled to the privileges *of soldiers, but are cut down wherever [ *530 ] they are met. The prisoner was a civilian, and not an officer of the army or navy, but volunteered (in the language of Gov. Head’s despatch,) to follow Capt. Drew “ to Hell.” If then he was a volunteer to do things in violation of the laws of God and man, he cannot be protected on the ground of coercion. In the times of the Roman republic, soldiers were sworn, and none others were entitled to the laws of war. *Vattel*says that none but soldiers and sailors are entitled to the usages of war. And if a civilian (like the prisoner) go and place his conscience in other men’s hands, to do he knows not what, or go he knows not where, he cannot be protected by an order, for he makes the act his own. Besides it is not a true position, that a subject is bound to obey the orders of his sovereign, no matter how much his conduct will injure other nations or individuals. An *406act of parliament contrary to the laws of nations, *Blaokstone*says, is void —how much more the mere command of a king ? Nor is it true that a subject is not bound to know and observe the law of nations. The law of nations is part of the common law—every nation and every citizen of every nation is bound by it; and it is an essential principle, that every one subject to a law, must know that law, and cannot be permitted to plead ignorance as an excuse for its violation. It is not a true position that the destruction of the Caroline was an act of war, and that therefore the civil courts cannot take cognizance of it or of the matters growing out of it. It was an act of violence, but not of war. The subsequent battle at Prescott was a much more warlike occurrence. Yet the prisoners taken on that occasion were tried by the king’s bench in Canada and some condemned to be shot and some to be transported to Van Pieman’s Land. *Leonard Watson and others,*9 *Adolph, and*Ellis, 731. Nor would a state of war necessarily oust the civil courts of their jurisdiction. When Gen. Jackson, in Florida, seized Arbuthnot and Ambrister in arms, and tried them by a court martial and executed them, it was strongly urged against him that he should have delivered them over to the civil courts to be tried. And his [ *531 ] defenders did not reply that such would not have *been the proper course, or that such courts would not have had jurisdiction ; but that there were no organized courts at that time in Florida.

Let us now proceed with the discussion of the great and main proposition. Is there any power in this court to discharge the prisoner without any reference to his guilt or innocence, and simply because an order of the British government will protect him from our laws ? This order must have a binding effect on this court in one of two ways. It is either an act directory to the court, emanating from a superior jurisdiction having power to issue it, or must derive its efficacy from some general law binding on this court. To the first, there is no pretence that an order from the English government has power over this court. *Secondly,*there is no law, municipal or national, which gives efficacy to this order. It is conceded that the law of nations is part of the common law of which this court has jurisdiction. *Blaokstone*says that “ in arbitrary states, the law of nations, wherever it contradicts or is not provided for by the municipal law of the country, is enforced by the royal power; but since in England no royal power can introduce a now law, or suspend the execution of the old, therefore the law of nations, whenever any question arises which is properly the object of its jurisdiction, is here adopted in its full extent by the common law, and is held to be part of the law of the land.” 4 *Black. Comm,.*67. So that in England no royal power can alter or suspend the law; and no royal order can suspend it here. It is therefore a part of the common law over which this court has jurisdiction. The whole expedition, from beginning to end, could be brought here and *407passed upon as a part of the common law, the administration of which is committed to this court. It is not proposed to go into the question of the jurisdiction of the United States courts and state courts. Ho doubt this would be a proper matter for United States legislation. Perhaps the constitution is sufficiently broad to cover a case of this kind, and therefore an act might be passed to declare which court, circuit or district, should take jurisdiction of it. But no such act has been passed, and therefore no court of the United States has jurisdiction *of the case. And [ *532 ] if so, where is the murderer to be tried ? Hot in the state court, because it is a question of international law. Hot in the court of the United States, because they have no jurisdiction of the offence. Hot in Canada, because the place is not within their jurisdiction ; and the counsel would thus send Cain again abroad with his brother’s blood upon his forehead, if, as we assume it to be, the case is one of rancorous malice.

The law of nations is made up of the natural law, the customary law and treaties. 1 *Kent’s*Comm. 3. In which branch of this law of nations can be found the principle contended for by the counsel for the prisoner ? There is nothing in the treaties between the United States and Great Britain, that an order of the English government should protect her subjects if they murder our citizens. There is no such principle in the natural or moral law. That law condemns the murderer in • as strong terms as our municipal law, and even forbids the unnecessary shedding of blood in open war. *“*It is an untrue position when taken generally, that by the law of nature or nations, a man may kill his enemy ; he has only a right to kill him in particular cases—in cases of absolute necessity for self-defence.” 1 *Black. Comm.*411. The principle is therefore to be found neither in treaty stipulations or the natural or moral law. Is it to be found in customary law ? Has it ever been the practice, as collected from the history of nations, for one nation to send such orders to be executed on the territory of another ? Has such an order ever been considered valid ? If such a military order is valid, why not a civil one, emanating from the same sovereign ? And whether it is of a military or a civil character, what difference does it make in the offence ? If the sovereign of England, can make an order to send soldiers and burn Buffalo in time of peace, why can she not make an order for a sheriff of Canada to go to Rochester and arrest McKenzie ; and if he kill him while making the arrest, why should not the order protect him from trial ? Can the counsel point out to me any difference, or why a civil order should not be as efficacious as a military one ?

*1 will now call the attention of the court to some authorities to [ *533 J show that invasions of this sort, by order of a foreign government, whether civil or military, are always held a violation of national law, and are left to be dealt with, by the jurisdiction within which the crime is committed. *408I refer to *Vattel, B. II, chap.*7, § 93, who says that foreign nations “ cannot, without an injury to a state, enter sword in hand into his territories in pursuit of a criminal, and take him from thence.” This is called a violation of territory, and nothing should be repulsed with more vigor. The instructions given by President Monroe to the Commissioners at Ghent, contains this declaration. “ Offenders, even conspirators, cannot be pursued by one power into the territory of another, nor are they delivered up by the latter, except in compliance with treaties, or by favor.” See Monroe’s Instructions to the commissioners of Ghent. *Vattel, B. III. ch.*2, § 15, *p.*764, shows that the order from a foreign government will not protect a subject from execution. He speaks of foreign enlistment of soldiers within other territories, and says that “ foreign recruiters are hanged, and justly, as it is not presumed their sovereign orders them to commit the crime ; and if they did receive such an order, they ought not to obey it—the sovereign having no right to command what is contrary to the law of nations.” Here is authority that the subject is not bound to obey the order of his sovereign, involving the commission of crime. Again: *Vattel, B. III. ch.*6, § 68. “ Nothing of all this takes place in a war void of form and unlawful, more properly called robbery, being undertaken without right, without so much as an 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 obligation to observe towards them the rules of war in form. It may treat them as robbers. The city of Geneva, after defeating the attempt of the famous Esclade, hung up the Savoyard, whom they had made prisoners, as robbers who had attacked them without any cause or declaration of war. Nobody offered to censure this proceeding, which would have been detested in a formal *[ *534 ]*war.” This would have been the case in the present transaction, if, instead of McLeod coming here three years after the Invasion, he had been taken at the moment and hung up.

What has been the course of the English courts towards our citizens in respect to alleged violations of territory ? See the report of the trial of *John Balcer,*found in the *House Documents, No.*90, *20th Congress, p.*308. Baker was a citizen of the state of Maine, and on the 4th of July, 1829, invited some neighbors to dine with him, and put up the flag of the United States and a liberty pole. *For*so doing he was arrested by the authorities of New-Brunswick, and was tried and sent to prison, and remained there some time. Our government solicited his discharge. There was a question as to the jurisdiction of the place where Baker lived, when he put up the American flag. Both nations claimed it, and the question was pending as to whom the territory belonged. The British authorities, however, did not let the individual question be merged in the national question. They held him personally responsible, and tried and convicted him, although negotiations *409were then going on at Washington and London. In May, 1828, in a letter from Mr. Lawrence to Lord Aberdeen, he holds the following language: <c How far the United States may regard it as an aggravation of their original complaint, that the prosecution of Hew Brunswick was proceeded with during the pendency of a diplomatic discussion on the right to arrest Mr. Baker, and that he was brought to trial more than two months after a formal demand for his release had been made by the American government to the British minister residing at Washington, must rest with the President to decide.” This demand was made on the ground that the jurisdiction of the place belonged to us. But though it was a public affair, and then the subject of negotiation, the British government refused to release him. See also another case, that of *Ebenezer Greely, House Documents, No.*31, *25th Congress.*See his letter to Governor Dunlap, 12 June, 1837. Also, Stevenson to Palmerston, *Sen. Doc.*197, *p.*9, 1841. Palmerston to Stevenson, *p.*9,10. Greely, an American citizen, was sent to Madawasca to take the ^census, and for so doing was sent to jail [ *535 ] by the authorities of Hew-Bmnswick. A demand was made for Ms release, but it seems that the British authorities were not then so expeditious as they seem disposed that we should be now. For after long discussion, the British government declined surrendering Greely, as they had formerly declined surrendering Baker. It is true that in this case there was a question of jurisdiction, as to who were entitled to the territory, but that did not prevent them from detaining the man. Apply this case to the question before us, and according to the argument which has been used here, it was a national affair, and the private injury was swallowed up by the national one. And it should only have been necessary to show an English court that Mr. Webster and Mr. Fox had it under discussion, and the court would of course immediately take his chains off and let him free. Was it so, when the rights of our citizens were at issue ? We asked for their release, because the territory belonged to us, or at least it was a disputed question, and neither party by mutual understanding was to exercise exclusive jurisdiction over it. But they said that the man who raised the liberty pole had committed a treasonable offence, which could not be passed over with safety. On the other hand, we insisted he was but exercising his rights and doing his duty as an American citizen. But notwithstanding the question between the two nations, they seized the man, and said that their laws required he should be punished. Does not this reasoning apply here ? And shall we let our Canada neighbors come here and commit murder ? And shall we tell these bandits, if you come on our shores and murder our citizens by order of your government, you only do your duty ? And shall we thus let men escape punishment, both here and in Canada, on the equally novel and absurd doctrine that there is no jurisdiction to try them ? A *410doctrine so monstrous that it .could never be received by any court; nor can it be supposed that it was ever seriously urged before any court. We will go a step further, and show that by the law of nations, these illegal orders are discredited even by the usages of war. Vattel, *Book*[ *536 ] *III. chap.*8, § 154, *speaking of whether an enemy may be assassinated, condemns it, and says that the assassins should be considered as murderers. He speaks of soldiers getting into the camp of an enemy and killing the general; and he says that even though lawful, the persons doing it, when afterwards taken, are always executed.

In our revolutionary war, when an attempt was made by Sir Henry Clinton to corrupt the soldiers of the Pennsylvania line, the men sent by him for that purpose were taken ; and General Washington ordered them to be immediately hung. 4 *Marshall’s*Washington, 368. Where, then, is it to be found in the practice of nations that an individual is never held responsible for executing the orders of his sovereign ? There is no such principle in war or peace. When the order is unlawful it is never held as a protection to those who execute it. Such a principle would hold out to powerful nations temptations to aggression, and become the fruitful source of war. It is to the softened spirit which civilization has introduced into the modern code of nations that persons in ah alien territory owe their safety in peace or in war. If they violate that code, they themselves abrogate the law by which alone they are protected. “ The law of nature obligeth man to a mutual exercise of the offices and duties of peace, and the person that first violates them to my prejudice, relieves me, as far as lies in his power, from paying any of those offices to himself.” *Puffendorf, Lib.*8, *Chaps.*6 *and*7.

There is another ground assumed here, that the offence of the individual is merged in the national offence. I cannot solve what is meant by such a’ proposition. Is murder an offence which can be transferred from one person to another ? Can the malice of the murderer’s heart be transferred, or wiped out by imputing it as an offence to his nation ? If he acts with the malice of a murderer the crime is his own, fixed upon him forever; and no subsequent order or expiation, except of God, can ever wash the stain of murder from his hands, or transfer the guilt from his heart. It may be said that a civil offence is sometimes merged in a criminal one. But not so [* 537 ] with crimes. The guilt of theft is *not merged in that of murder, though the punishment of it may be. We can have no stronger illustration of it than what takes place between the master and his slave. Suppose the latter to commit an offence by the mandate of the master, who holds all but the life of the slave at his disposal. Was ever the doctrine held, that the crime of the slave is merged in that of the master ? Both are alike punished; and there would be no safety for society were it otherwise, particularly if you could merge the crime of murder by one man, in the crim*411inalifcy of another. According to *Vattel,B.*1, *chap.*6, § 75 : As to emissaries coming into a country to entice away the useful subjects of a sovereign, he has, in such case, a right to punish them severely. Here, according to Yattel, the punishment is cumulative, and the sovereign has a right to claim redress from the nation who employed them. Yattel does not use the sentence in the disjunctive. He says, “ he may punish the subject severely, *and*then call on the nation which sent them for redress.” Another passage in *Book*2, *chapter*6, § 75 : “ If the offended state (in case an individual of a foreign nation commits a crime against it) keeps the guilty in his power, he may, without difficulty, punish him, and oblige him to make satisfaction. If the guilty escape, and returns to his own country, justice may be demanded from his sovereign.”

There is one more view to be taken, before I leave this part of the subject. It has been attempted to place the case of the prisoner on the footing of an ambassador. There is however little or no analogy between this man, acting under the order of the British government and an ambassador from that nation. They stand on distinct grounds. At all times, and amongst all nations, the character of an ambassador has been held inviolable, which arises from necessity and stipulation; as but for the perfect protection thrown around 'ambassadors, there would be no end to national wars. Necessity requires that we receive an ambassador, and consent to the condition that he shall personify the sovereignty of the nation he comes from, and it throws around him an inviolability which no other subject or citizen receives. He therefore ^stands on different ground from, an agent [ *538 ] like the prisoner. The ambassador’s privileges arise from the necessity of nations, and to avoid interminable war. But these reasons do not apply tp the prisoner. They apply to none but an ambassador, and much less to one who is *hostis humani*generis, or in other words, a murderer. I speak not of the prisoner but from the record, and on the supposition that it is true. I do not mean to speak positively, or pronounce him guilty of murder. That is a question for the jury, and I wish to leave it exclusively to its decision. But even ambassadors, great as are their immunities, are, by the common law of England, held subject to be indicted for the crime of murder. How little ground is there then to claim an exemption for so subordinate an agent as the prisoner ? I will refer to authorities on the subject, which are adopted here as well as at Westminster. 4 *Coke’s Inst.*163, speaking of ambassadors, says, “ But if a foreign ambassador commits a crime *contra Jus*gentium, or a crime against the laws of nature, he loses the privileges of an ambassador, and may be punished here as any other alien, and not sent back to his sovereign, except through courtesy. ” See also, *Hale’s Pleas of the Crown, page*90 ; *Foster’s Crown Law, page*188. These authorities are approved by the classic Blackstone, who says : “ Since *412all municipal laws act in subordination to the- primary law of nature, and when they affix a punishment to natural crimes are only declaratory of and auxiliary to that law; therefore to this natural universal rule of justice am-»'" bassadors as well as other men are subject in all countries; and of consequence it is reasonable that whenever they transgress it they shall be liable to make atonement.” 1 *Black. Comm.*254. In the reign of Queen Anne, the ambassador of Peter the Great, Czar of Russia, was arrested for a debt of £50, and taken from his carriage in the streets of London. This was undoubtedly a gross violation of the law of nations. The Czar was much enraged, and demanded that the sheriff and all the officers concerned should be put to death. The queen replied, “ that she could inflict no punishment upon any, the meanest of her subjects, unless warranted [ *539 ] by the law of the land and ^therefore was persuaded he would not insist upon impossibilities.” Yet, England peremptorily demands the release of McLeod, whether warranted by “the law of the land” or not! Our laws are as dear to us as those of England are to her. If an executive act, not 6 warranted by law,’ done by her kings, surrounded as they are with uncontrollable prerogatives, is deemed an impossibility, how much more is such an act impossible by our president or our governor, who have no existence separate from the law, whose breath and voice and" life are given to them by ‘ the law of the land’! I cannot refrain from adding to these English authorities the exalted name of Vattel. He says, *Book*4, *chap.*7, § 100: “ If an ambassador commits such atrocious crimes as affect the safety of mankind, if he undertakes to assassinate or poison the prince who has received him at his court, he doubtless deserves to be punished as a treacherous enemy, as a prisoner, and as an assassin.” “ His character, which he has so basely stained, cannot shelter him from punishment. Is the law of nations to protect a criminal, when the safety of all princes and the welfare of mankind call for his punishment ?” Not only an ambassador, but a sovereign himself, by the laws of England, if he comes into that coun. try, and is guilty of murder, may be tried and executed. It was so held in the celebrated case of Mary, queen of Scots. On a consultation of the most distinguished professors of the common and the civil law, it was decided that although a sovereign queen, while in England she was amenable to the laws of England, and she was tried and executed for an offence alleged to have been committed against those laws. 2 *Ward’s Law of*Nations, *p.*578. These authorities and precedents seem to me conclusive to shew, that by the common law, the law of England and of this country, no immunity however great, no station however high, surrounds the party with an exemption from the liability to punishment for the crime of murder.

Before concluding this argument, I would make some suggestions on the propriety of discharging this prisoner by the law officers of the state, or by *413the interposition of the executive power. The executive can interfere in no way but "through the pardoning power, and that is [ *540 ] expressly restricted by our constitution to be exercised only after conviction. *Art.*2, § 3. Nor is this restriction without reason. It has arisen from the experience of England, and from the maxims of her statesmen. It was introduced effectually to cut off from the executive the power of stifling investigations and dispensing with laws. It was to remedy the mischief disclosed in the decision of the case of *Sir Edward*Hales, 11 *Howard’s State Trials, p.*1165. And although in theory the power may exist in the prerogative of the crown of England to pardon-a murderer before trial, it is believed never as yet to have been exercised. 3 *Inst.*235, 236.

It has also been suggested that a *nolle prosequi*should in this case be entered by the prosecuting officer. Many reasons dissuade him from such a course. The main transaction out of which this indictment grew, was a gross violation of the law of nations. It was an invasion and a violation of our territory. An offence which, according to Yattel, should be repelled with the utmost vigor, by a state which means to maintain its independent position amongst the family of nations. Chancellor Kent declares that there is no exception to the rule that a neutral territory cannot be lawfully invaded. 1 *Kent’s Comm.*120. If the Caroline had given just provocation, no time had been afforded or notice given to the authorities of New-York to remove the offence. Again: Suppose the order for the destruction of the Caroline to be legal and valid, there is evidence which goes to show that the act for which the prisoner was indicted, was not required or even contemplated by the order, and consequently, cannot be justified or protected by it. After the assailants had obtained possession of the boat, they unnecessarily went on our shore, and searched the adjacent ware-house to find more victims to satisfy their insatiable thirst for blood. There is also evidence which goes to show that the prisoner, was the very man who pursued and wantonly and inhumanly shot Durfee upon our territory, as he was flying unarmed from the boat. If these facts should be established on investigation, the British nation would be first to repudiate the act and to declare that it was not done by their authority.

"Another reason why the prosecuting officer deems it improper [ *541 ] to enter a *nolle prosequi,*is that the state of New-York has a frontier of 300 miles on the Canada border; our citizens along that line are excited and alarmed, and it is essential to their peace and quiet that they should know their rights—and know also that the whole state and all our sister states are in earnest in ascertaining and repelling with their united power any aggression that may have been committed upon them. It has been intimated that it is undignified in the great state of New-York to pursue a hum*414ble individual, when the game to be played was between nations. This is a fallacious way of putting the question. The state of New-Tork has not deviated from her ordinary course. She has seen no reason in this case any more than in that of any other indicted felon, to arrest the machinery of her municipal administration. New-Tork pursues no man for revenge; but she places her pride and her dignity in the equal and uninterrupted administration of justice. She would have it so perfect, that it will seek out and protect the humblest—so powerful,-that it will reach and punish the highest; and for that reason she is jealous of the interference of reasons of policy or measures of state, lest it weaken the respect which is due to our courts or diminish the reverence paid to our laws. The prisoner is passing to his trial'like any other offender, and there is no ground for anxiety lest justice should not be done. The law, I venture to say, will be as purely and impartially, and I trust I may add without offence, as wisely and as learnedly administered by our court, as by the court of queen’s bench, and the facts passed upon by the jury as impartially, as they would be, were the case submitted to a jury in England.

Great Britain has taken the lead amongst modern nations in establishing the principle that she will not listen to a demand for redress, however just, after the demanding nation has attempted by violence to redress itself, until the offensive act of violence is first atoned for. About the year 1770, British subjects made a settlement upon Spanish territory near Nootka Sound.

A few years afterwards a similar settlement was made on the Falk- [ *542 ] land Islands. The Spanish government *complained of the aggression, and proceeded violently to dispossess the settlers and destroy their property. England refused to listen to any demand or treat on any question, until the property of her subjects was paid for, and every thing restored as far as possible to its former position; which was accordingly done, and then the rights of Spain were acknowledged. These transactions are not referred to in the spirit of reproach, but in a feeling of respect and admiration. v This principle is one of high-toned national self-respect, and has acquired for England a lofty and enviable position amongst the nations. In my early days in reading the records of Roman greatness, it was not her palaces, nor her temples, nor the extent of her dominions, nor the power of her armies, that thrilled me, but it was the magic power of the exclamation, even amongst the remote and barbarous nations, “lama Roman citizen !” And in modern times, the exclamation, I am an Englishman, has become almost an equal passport and protection throughout the world. When will the time arrive when the exclamation, *“*I am an American citizen 1” shall claim an equal respect ? Never until we learn with equal scrupulousness to protect the lives, liberties and property of the humblest citizen of our republic. Never while we disarrange the decent folds of the drapery of our judiciary with undignified haste to obey the irregular and illegal demands of a foreign nation. *415*Joshua A Spencer*in reply. After adverting to remarks which had been made out of court in reference to his appearing on this motion as the counsel of the accused, he holding the office of district attorney of the United States for the northern district of Hew York, observed that atan early stage of the proceeding, and before his appointment to that office, he had been retained as the counsel of the accused ; and that he would say to all who thought that his appointment should induce thim to relinquish the defence of his client, that they very erroneously appreciated the duties of his office, the merits of the question involved in the defence of the accused, and his own views of responsibility. A counsellor of this court could not refuse to discharge the duties he owed to his client ^because other duties entirely in- [ *543 ] compatible with the first had devolved upon him, and he trusted that he should discharge both to the best of his ability. He also reprobated the attempt which had been made by some of the partizan prints of the two great political parties of the country, to create political capital out of the question, whether his client should be held to trial upon the indictment found against him. Its tendency, he said, was to prevent an impartial trial, if a trial must be had; to strengthen and deepen the prejudices which already unhappily existed on both sides of the borders; to embarrass the negotiations pending between our own and the British Government, and to expose them to an open rupture. He then proceeded :

The question now presented, without doubt, is as novel as it is important. The counsel for the prosecution have argued with much zeal, that the motion to discharge the accused without trial has no precedent; and we have even been charged with temerity for presuming to make it. Grant that it is without precedent, and the argument is briefly answered. Ho precedent can be found within the bounds of Christendom for the prosecution itself. Ho case can be found on the records of the courts of any civilized nation, in which an individual has been indicted, and sought to be capitally punished, for obeying his rightful sovereign. It is indeed a hard dilemma, to be executed as a traitor for disobedience, on one side, and as a murderer, for obedience on the other.

The whole argument on the other side is founded on a fundamental error. It assumes as true, what we utterly deny, that McLeod is guilty of murder; and starting upon this assumption, the counsel for the prosecution have made, it must be confessed, some little headway in proving that the court cannot properly discharge him. But his guilt we deny ; and we have come hither to ascertain the facts, and bring together all the attendant circumstances of the case; on which, as now established without dispute, the questions of law arise; first, what powers do the court possess ? and secondly, how ought they to be exercised ?

*416Let it not be supposed that we have come here to concede [ *544 ] *the prisoner’s guilt, and yet to solicit his discharge. The motion is founded on the assumption that he is guiltless of crime, even if he were one of the expedition which violated our territory and destroyed the property of one, and the life of another of our citizens.

Nor is the objection to a trial, in a state court. He conceded that the supreme court of New-York has as much authority to try offenders as any other court, when the offence has been committed within its jurisdiction. It is not a question of conflict of jurisdiction between the courts of the state and those of the United States; for he denied that any court, under either government, had a right to put McLeod on his trial; and insisted that congress had no power to confer the authority to try him, on the courts of the Union. And why ? Simply because the constitution of the United States clothes the executive and legislative departments of the government with the exclusive jurisdiction and cognizance of the entire offence. The prosecution is without precedent, and it is without jurisdiction; and he trusted the court would so regard it.

Our motion is, that McLeod be discharged without a trial; in what way is indifferent to us. We care not whether by the entry of a *nolle*prosequi, or an order for his discharge absolutely,; or that he be let to bail on his own recognizance, so that he be set free, and it be understood that no trial is ever to be had ; and thus the country saved from the disgrace which must attach to it if the prosecution is pursued ; for we feel quite as much interested in the honor of our country as in the safety of McLeod.

Before proceeding to speak farther on the main question presented by the case, he said it would be proper to see what power the court had over the subject. He insisted that the supreme court had jurisdiction to try the crime of murder at bar when the record and the body of the prisoner, as in this case, are both brought into court. He cited 2 *Rev. Stat. 2nd ed.*330 § 1, as follows : “ All issues of fact which shall be joined in the court of chancery, or in any surrogate’s court, and which shall be sent to the supreme court for trial; and all issues of fact joined in the supreme court, shall be tried at a circuit court or sittings of the supreme court, [ *545 ] in the *proper county, *unless the supreme court*shall, on the motion of either party, in cases of great difficulty, or which require great examination, order such trial to be had at the bar of the said court.” No one will deny that this is a case of such description. The court may, therefore, grant the leave mentioned in § 54 of *R. S.*609. *“*It shall not hereafter be lawful for any district attorney to enter a *nolle*prosequi, upon any indictment, or in any other way to discontinue or abandon the same, *without the leave of the court having jurisdiction to try the offence charged'*entered on its minutes.” The right to enter such *nolle*prosequi, previous *417to the enactment of the Revised Statutes, was vested in the district attorney or attorney general, as it is now in England, and in most of the states of the Union, and in the courts of the United States. It ivas then and is *now*the exercise of the executive power of the government, influenced by considerations of sound policy and wise expediency. The same reasons which would induce the law officers of the government to interpose to prevent a trial, will, it is hoped, induce this court to advise, allow, and order, the samo thing to be done. This is emphatically a question of political expediency, in the highest and best sense of that much abused term. It is one involving the dearest and most cherished rights of the nation; and all the consequences which will naturally flow from its decision, may very properly be taken into the account. The note of the revisers to this 54th section shows where the power was before its enactment, and that it might now be legally exercised. It is as follows, 3 *Rev. Stat.*845—i; It is conceived that after grand juries have found bills on their oaths, such a presumption of guilt arises, that the prosecution of the offence should not rest in the discretion of any officer without the sanction of the court. It may be abused; and there can be no difficulty in obtaining the leave of the court in cases where it should be granted.” Under this branch of the law, then, this court has the power and the right to do what in its discretion shall seem to be proper.

The counsel then proceeded to examine the power of the court under the act in relation to waits of habeas corpus, *when issued [* 546 ] to inquire into the cause of detention, 2 *R. S.*465. Ho insisted that the powers of the court and the officers, charged with the duties of allowing this important writ, are by these enactments greatly extended beyond the former law of this state, or present law of England. They authorize the court to look beyond the indictment, into all the facts of the case, and to dispose of the party “ as the justice of the case may require.” Without examining minutely all the important provisions of this law, the 75th section of which abrogates all the provisions of the common law in regard to this writ, except so much and such parts thereof as may be necessary to carry into full effect the provisions therein contained, it will be sufficient for the present argument to quote the 40th; 41st, and 50th sections.

§ 40th. “ The court or officer before whom the party shall be brought on such writ of habeas corpus, shall immediately after the return thereof proceed to examine into the facts contained in such return and into the cause of the confinement or restraint of such party, whether the same shall have been upon commitment for any criminal or supposed criminal matter, or not.”

§ 41. “ If no legal cause be shown for such imprisonment or restraint, or for the continuation thereof, such court or officer shall discharge such party from custody or restraint under which he is held.”

*418§ 50. “ The party brought before any such court or officer on the return of any such writ of habeas corpus, may deny any of the material facts set forth in the return, or allege any fact to show either that his imprisonment or detention is unlawful, or that he is entitled to his discharge ; which allegation or denial shall be on oath, and thereupon such court.or officer shall proceed in a summary way, to hear such allegations and proofs as may be produced in support of such imprisonment or detention, or against the same, and to dispose of such party as the justice of the case may require.”

Language could not be employed to confer broader power and more enlarged jurisdiction, than are here given to the court. So solemn, and so much involving the whole merits of the cause, was this proceed- [ *547 ] ing regarded by the legislature, that by the 70th section of the same article, a writ of error is given to either party, to the court for the correction of errors. The supreme court of the United States, in the case of *Holmes*v. *Jennison,*14 *Peter's Reports*540, have decided that the proceeding on the writ of habeas corpus is a suit within the meaning of the 25th section of the judiciary act of congress; so that in the specified cases, a writ of error will lie to that court from the judgment of the highest court of law of the state. The counsel appealed to the experience of the judges that it was the constant practice of the courts of general sessions to exercise their discretion in proceeding to the trial of indictments. A party is indicted separately for several felonies, is tried and convicted on one, for which he may be sentenced to five year’s imprisonment. He may be tried on each, and on conviction, sentenced to imprisonment for a term of years to commence at the expiration of the former term. It is a well known fact, that it rarely happens that more than one trial is had. An individual may be indicted and flee from justice, and after an absence for years return within the jurisdiction of the court with a redeemed reputation, and with an innocent family. Is the law so. inexorable, that our law officers or courts cannot, without the violation of duty omit or bring him to trial and punishment, and his family to wretchedness ? A prisoner in jail is sick and languishing, so that his longer confinement will endanger his life. Have our courts so little discretion or humanity that they cannot set him at liberty and forbear to bring him to trial ? A man is indicted and imprisoned for murder. Before the trial the person supposed to be murdered returns to his kindred or home. Will it be affirmed that in such case a court or an officer cannot discharge the prisoner on habeas corpus ? Must the law officer of the government go on with the solomn mockery of a trial by jury ? Cannot the court be informed and know ; cannot the understanding and knowledge of the community pronounce the verdict without the form of a trial ? Suppose a person to be indicted for an offence made felony by statute, but be*419fore the trial the statute is repealed ; and suppose the repeal effected by a course of enactment which required careful legal *ex- [ *548 ] amination and construction before the conclusion is arrived at— and the court so determine ; must it still put the accused on his trial; Who will say, in all cases, that the court has no discretion ? but must try, for the sake of having an acquittal by a jury ? It seemed to him that the argument need not be further pursued, to prove that this court has power to dispose of this indictment and of the prisoner as in its acknowledged wisdom and discretion shall seem proper.

Acting under this belief, and it is hoped with a proper appreciation of the duty which counsel always owe to their client, and often to their country, these writs of certiorari and habeas corpus have been prayed for and issued, and the prisoner and the record brought into this court, and its judgment upon the whole merits of the great and important questions involved, is now invoked; and when pronounced, it is confidently believed it will not only open the prison doors and set the captive free, but will give an enlightened interpretation and application of the laws of nations, a comprehensive and statesman-like view of the jurisdiction of the national and state governments, and of their different departments, and elevate our country in the estimation of the world.

The counsel said he had now arrived at altogether the most important and interesting question in the case—what under the exercise of its high powers ought this court to do in this matter.

With a view' to present this question, the accused had on his oath set forth all the material facts in the case, and had fully fortified and confirmed them by authentic public documents, not one of which facts had been disputed, much less disproved. They are all before the court and the country, and need not here be repeated. It is not contended that they show a stata of war to exist between the United States and Great Britain, or the State of New York and the British colonial possessions, on her borders. Happily for both nations and all parties, we have as yet escaped this fearful crisis ; but who shall say how long we may, if the tribunals of justice in this state shall fail to respect the laws of nations, or to have a wise regard to the harmonious movements of our complex system of government ? But the prisoner’s *counsel contend that a state of open war did exist and [ *549 ] was waged on the Niagara frontier in the midst of the peace of nations. A war too by American citizens, commanded by a citizen whose name and title were well calculated to inspire confidence in the American soldier, and to excite apprehensions in Canada. True, in their combination and armament they had violated the laws of their own country, and acted in defiance of the known will of the authorities of the state of New York, and the United States government. But these circumstances did not make them *420less the enemies of the Canadian-government, nor deprive those public functionaries charged with the defence of the colonial possessions of Great Britain, of the right to plan and execute every expedition necessary for public security. Whether necessary or not, they are the judges for the time being, subject only to the appeal of nations. It belongs not to a humble individual to question, defy, or disobey their mandate.

For is the question, whether the expedition against the steamboat Caroline, which resulted in the violation of our territory in time of peace with the government, in the destruction of the boat, and in the death of Amos Durfee, was or was not justifiable or excusable, involved in this motion. As counsel for McLeod, we are not before the court to justify, extenuate, or even apologise, for this most extraordinary and rash proceeding of the provincial authorities; nor, on the other hand, do we feel called upon to approve of the conduct of our citizens in their lawless and hostile invasion of a British island, and opening a cannonade upon British subjects in time of peace. These are questions to be agitated and settled before other tribunals, and in afar different way. Already has that tribunal taken cognizance, and now has constitutional jurisdiction of the whole entire matter, and to the determination of that high tribunal it is discreet to leave the issue. All we contend is, that such a state of things existed on the Canadian frontier as made it lawful for the provincial authorities to defend themselves against their assailants and invaders; and for that purpose to command the obedience of every British subject in the province, or to accept the [ *550 ] voluntary service of loyalty ; the government *being alone responsible for whatever was done; and that every subject who entered the service and acted under such authority, whether for a month or an hour, incurred no personal individual responsibility to any American government or laws whatever. So eloquently and ably have the facts been presented to the court, and the relative duties and obligations of governors and governed been illustrated by the opening counsel, that there is but little left on this part of the case to be said or done, save to cite authorities to sustain the principles for which he so manfully contended.

*First,*then, as to the duty of *obedience. Vattel, Book*1, *ch.*1, § 12, says, “ From the very design that induces a number of men to form a society, which has its common interests and which is to act in concert, it is necessary that there should be established a public authority to order and direct what is to be done by each, in relation to the end of the association. This political authority is the sovereignty, and he or they who are invested with it, are the sovereign.” “ It is evident by the very act of the civil or political association each citizen subjects himself to the authority of the entire body, in every thing that relates to the common welfare. The authority of all over, each member therefore essentially belongs to the body politic *421or state ; but the exercise of that authority may be placed in different hands, according as the society may have ordained.” Again: the same writer says, *Book*1, *ch.*4, § 26, “ We have seen already that every political society must necessarily establish a public authority to regulate their common affairs, to prescribe to each individual the conduct he ought to observe with a view to the public welfare, and to possess the means of procuring obedience. This authority essentially belongs -to the body of the society, but it may be exercised in a variety of ways, and every society has a right to choose that mode which suits it best.” In *Book*1, *ch.*4, § 38, speaking of the obligation and rights of a sovereign, he lays down the same great principles. In § 40, and 42, of the same chapter, he says, “ When therefore the people confer the sovereignty on any one person, they invest him with their understanding and will, and make over to him their obligation and rights, so far as relates *to the administraton of the [ *551 ] state, and to the exercise of public authority.” “ All that has been said in chapter second of the general duties of a nation towards itself, particularly regards the sovereign. He is the depository of the empire and of the power of commanding whatever conduces to the public welfare. He ought therefore, as a tender and wise father and faithful administrator, to watch for the nation, and take care to preserve it and render it more perfect, to better its state, and secure it as far as possible against every thing that threatens its safety or its happiness.” One more citation from this authority on the subject of obedience will suffice. In *book*1, *ch.*4, *section*53, he says, “ As soon as a nation has acknowledged a prince for its lawful sovereign, all the citizens owe him a full obedience. He can neither govern the state, nor perform what the nation expects of him, if he be not punctually obeyed. Subjects, then, have no right in doubtful cases, to examine the wisdom or justice of their sovereign’s command. This examination belongs to the prince. His subjects ought to suppose that all his orders are just and salutary. He alone is accountable for the evil that results from them.” Second, as to the effect of a ratification, by the sovereign of the accused, the attorney general inquires, can it protect the prisoner ? Does it show him innocent ? We answer, the facts in the case show McLeod innocent, not only of murder,'but of any other crime or injury whatever. As to the question of protection, let the writers on the law of nations answer. Vattel, B. *II, ch.*6, § 73 *and*74, “ As it is impossible for the best regulated state, or for the most absolute sovereign, to model at his pleasure all the actions of his subjects, and confine them on all occasions to the most exact obedience, it would be unjust to impute to the nation or sovereign every fault committed by the citizens. We ought not then to say in general, that we have received an injury from a nation, because we have received it from one of its members# But if a nation, or its chief, approves or ratifies the act *422of the individual, it then becomes a public concern, and the injured party is to consider the nation as the real author of the injury, of which [ *552 ] the citizen was only the instrument.” **Burlamaqui, Part*4, *ch.*3, § 18 *and*19, “ A mere presumption of the will of the sovereign would not'be sufficient to excuse a governor, or any other officer, who should undertake a war, except in the case of necessity, without either a general or particular order. ” *“*Whatever part the sovereign would have thought proper to act if he had been consulted, and whatever success the war undertaken without his order may have had, it is left to the sovereign whether he will ratify or condemn the act of the minister. If he ratifies it, this approbation renders the war solemn, by reflecting back as it were an authority upon it, so that it obliges the whole commonwealth. But if the sovereign condemn the act of the governor, the hostilities committed by him ought to pass for a sort of robbery, the fault of which by no means affects the state, provided the governor” (not the private citizen who obeyed) “ is delivered up or punished according to the laws of the country, and proper satisfaction be made for the damage sustained.” In this case not only is governor Head’s general conduct approved, but bis original authority covers the whole transaction, and the mode of its execution is sanctioned by the British government.

But the learned attorney general says all these are questions of fact to be passed upon by the jury. A new doctrine this, certainly, that we need a jury to ascertain whether the British minister has spoken ; and if so, whether he has told the truth; and whether the court can properly take jurisdiction of the matter. The attorney general farther insists that the court cannot consider any facts aliunde, except what go to the illegality of the commitment, not to the guilt or innocence of the accused; and that an innocent man may be legally detained and kept for trial. We do not claim that the court can inquire whether McLeod was one of the attacking party, or whether that party killed Durfee ; but assuming these facts to be so, we say the court can and ought to inquire whether any portion of the transaction is cognizable before the state tribunals. The court will see that it has jurisdiction rightfully to try, before it proceeds. The case of the ambassador, put by the attorney general, fully illustrates our position.

[ *553 ] He alleges that he is an ambassador, and therefore protected by the law of nations. We allege that McLeod was a soldier in the service of his country, and therefore protected by the same law. Each goes to the jurisdiction of the court, and may therefore be inquired of here. The supposed cases of killing in self-defence, in the execution of the law in the service of process, in keeping the peace, or in carrying into execution the sentence of the law at a different time and place from that appointed, have no analogy. They are the ordinary cases arising under our laws in *423relation to our own citizens in time of peace, and have no relation to the rights of war, to the laws of nations, to the provisions of our constitution, or to the jurisdiction of our courts rightfully to take cognizance of the questions thus arising. If possible, there is still less analogy between the evidence furnished by the certificate of a governor, and by the diplomacy between two independent nations.

Again: it is said there was an excess of force used ; that the order to take and destroy the steamboat, did not warrant the killing of Durfee. Do the counsel mean to insist on applying the technical doctrine of the action of assault and battery to the movements of armies in time of war ? That to a plea of *son assault demesne,*they may reply an excessive beating ? The wonder is rather that but one life was lost in the midnight execution of the perilous expedition. It cannot be denied that the assailants had reason to expect resistance from a band of armed men on board the boat. It is reasonable to suppose that the discharge of fire arms was expected and intended, both by those who ordered and those who obeyed ; else why were they supplied ?

The validity of an order given by a government cannot be questioned or subjected to a trial by jury. What the order was, is admitted; that it was obeyed, is admitted; the cause of its issue, its • nature and object, are ad. mitted; that Durfee was killed in its execution, is admitted ; and that this is the only murder or killing set forth in the indictment, is also admitted. There is not a single fact disputed, and not a material one that does not fully appear" on this motion. Then why call for the intervention of a jury ? It is the sole province of this court to pronounce the law on facts admitted and known ; *and when this court perceives that there [ *554 ] was no felonious killing, and that the municipal authorities of the state cannot take lawful jurisdiction of any portion of the transaction, has it not power to stay proceedings and discharge the prisoner ? The attorney general has reiterated the hateful word “ murder” so often in his argument, that one is almost led to believe he expected by its utterance to stamp its nature upon this transaction. This court will not be influenced by sounds, but by ideas and arguments alone.

It is insisted that, whether ordered or not, McLeod having been after-wards found within our state jurisdiction, he is individually answerable. This in the judgment of the prisoner’s counsel, is a great and dangerous heresy. But let us again recur to the authorities. *Rutherforth, B.*2, *ch.*9, § 18, says, “ In solemn war the individual members of a nation which has declared war, are not punishable by the adverse nation for what they *do;*because the guilt of their actions is chargeable to the nation which directs and, authorizes the act. But even this effect may be produced without a declaration of war. For in the less solemn kinds of war, what the mem*424bers do, who act under a particular direction and authority of the nation, is by the law of nations no personal crime. They cannot, therefore, be punished consistently with this law for any act in which it considered them only as the instruments, and the nation as the agent.” *Vattel, B.*3, *ch.*2, § 6 says, *“*The sovereign is the real author of war, which is carried on in his name and by his order. The troops, officers and soldiers, and in general, all those by whose agency the sovereign makes war, are only instruments in his hands. They execute his will, and not their own.” Where then is the *malice,*so essential to constitute murder ? Where the wicked and felonious design, if he is not acting his own will, but that of another, which he has no right to question or resist ? !t As war cannot be carried on without soldiers, it is evident that whoever has the right of making war, must also naturally have that of raising troops.” *Id.*§ 7.

It has been farther said, by the attorney general, that McLeod is a civilian, a deputy sheriff, not a soldier, and is a volunteer, and there- [ *555 ] fore not exempt from personal liability. *Let us again have recourse to authority, and see whether there is any warrant for this doctrine. *Vattel, B.*3, *ch.*2 § 8 *and*9, says : “ Every citizen is bound to serve and defend his state as far as he is capable. Society cannot otherwise be maintained, and this concurrence for the common defence is one of the principal objects of every political association. Every man capable of carrying arms should take them up at the first order of him who has the power of making war.” “ Every citizen or subject is bound to serve the state. The sovereign has the right, in case of necessity, to enlist whom he pleases. And it is highly proper that he should as far as possible, confine his choice to *volunteers,*who enlist without compulsion.” Who composed the army of the revolution ? Who the militia of that day ? Who the min* utemen ? Were they not all volunteers, offering themselves a willing sacrifice on the altar of freedom ? Our enemy indeed called them “ rebels,” but that did not make them so. The history of their “ deeds of noble daring” is *“*written in letters of living light,” and the judgment of Christendom upon their character has long since been recorded. Far distant be the day when any other than *“*volunteers” shall serve in the armies and navies of this country, or when they shall be denied the rights and immunities of war—or when these shall by us be denied to others.

But again, it has been said by the attorney general, that there was no war; that none was declared *;*that the party who came over and destroyed the Caroline were a horde of marauders and murderers. It is true that no war had been declared between the United States and Great Britain; but it is equally true that there had been a very significant declaration of war by those who took hostile possession of Navy island, and cannonaded the Canadian main; and that the steamboat destroyed and the man killed, had *425been engaged in transporting *“*volunteers” and munitions of war to the island for the purpose of destroying the inhabitants of Canada, and subverting the government.

*Vattel, Book*3, *ch.*4, § 67, says, *il*Legitimate and formal warfare must be carefully distinguished from those illegitimate and informal wars, or rather predatory expeditions, ^undertaken either without [ *556 ] lawful authority, or without apparent cause, as likewise without the usual formalities, and solely with a view to plunder.” “ Armies of banditti who range about for plunder, cruises of the buccaneer without commission, in time of peace, and such in general are the depredations of pirates.” “ These two species of war, I say, the lawful and* illegitimate, are to be carefully distinguished, as the effects and the rights arising from each are very different.” It is not difficult to tell to which class of war the defence of Canada against an open, hostile invasion, belonged. Nor can it be said with any show of truth, or candor, that there was no “ apparent cause” for the destruction of the Caroline. That there was sufficient to justify the entry upon our territory, at the time and in the manner that it was done, will not be contended for or admitted.

It is now submitted that it has been shown by acknowledged authority that the laws of war, and of nations, must govern this case; and hence we say that no nation, or people, having a proper respect for its own honor and dignity, would ever put McLeod on his trial. Would the courts on the frontier indict a whole army of invaders ! Then let them find bills against Captain Drew and his entire party who made the attack. Nay, more, why not find bills against Col. McNab and Gov. Head ? They must both be accessaries before the fact; and then let the governor make a requisition for their surrender. The attempt to bring these gentleman to trial for this offence would savor more of justice and courage than does the prosecution of an obscure individual, who obeyed their order. In truth, this whole proceeding is an absurdity; its equal cannot be found, and for the honor of our nation it is to be hoped it will remain forever alone—a precedent without a follower. It is the offspring of the excited state of feeling along the frontier, where are to be found refugees from Canada1, and some of our own citizens of desperate fortunes, and not very sound principles, who are anxious that McLeod should be tried, convicted, and executed, that a war between the two governments may be hurried on, in the expectation that they may share the plunder. The attorney general admits that there is excitement on the border, *and he informs us that there [ *557 ] will be again, if this trial of McLeod is not allowed to proceed. Lot it be so, if it must. But it will furnish no reason with this court for turning aside the law, or disregarding the established usages of nations» *426whatever effect it has had in other places, or before other tribunals, or officers.

This court does not know what appeared before the grand jury, nor whether they were “ patriots” or “ sympathysers,” or' “ calm, unprejudiced men ;” nor is it necessary it should. It is enough to know what appears before the court, and that it is now shown that there was no *individual offence,*no cause for the indictment, and none for its farther prosecution. This is not established alone by the late avowal of the British government, but by the indisputable allegations of the prisoner, and by the public documents before the court.

Allusion has been made to the conduct of General Jackson, in the trial and execution of Arbuthnot and Ambrister, taken in Florida. What has this to do with the case at bar ? Where is the analogy ? Moreover, that transaction has not yet become authoritative in the code of nations. The counsel for the people have said that the Canadian authorities tried and condemned our citizens who entered their territory, executing some and transporting others; and that our government had not complained. True ; but are the cases parallel ? These citizens acted by no lawful command, but in open violation of the laws of their own country and of the country they invaded.

Allusion has also been made to the case of John Baker, who was tried in the courts of New Brunswick for raising the American standard in the Madawaska district on the 4th of July, and of Ebenezer S. Greeley, who was in like manner tried for taking a census of the inhabitants thereof, under the laws of the state of Maine, to show that the British provincial government try our citizens without scruple, and punish without mercy ; and that the government at home gave these proceedings its sanction. No enlightened mind will say that these trials have done the provincial or British government any honor. Before they will be acknowledged as authority, or as safe precedent, they *must be shown to be right, and that the case at bar is like them. In truth there is no analogy. In these cases, Baker and Greeley, having American hearts and feelings, with a knowledge of the disputed territory and the conflict of the laws, voluntarily violated those of New-Brunswick passed to maintain her assumed jurisdiction, and intended to operate on just such cases. It has been said also, that General Washington, in the time of the revolution, ordered the men sent by Sir Henry Clinton to corrupt the soldiers of the Pennsylvania line, to be hung. So too, and for the same offence, was Major An. dre ordered to be hung by the same illustrious man, in obedience to the stern mandate of the same code, the law of war. No civil tribunal, however, ever attempted to take cognizance of these offences. But we contend that those laws which relate to spies, to emissaries, to robbers, to bandits, to assassins, to murderers, have no application to this case of McLeod—who, when his country was invaded, stood forth in her defence, and obeyed her orders. He took the hazards of war and perilled his life in the expedition; but for the rightfulness of the order his country alone is responsible. [ *558 ]

*427The attorney general, in his extensive research, cited the trial of the unfortunate Mary, queen of Scots, the bloodiest act of treachery and tyranny and the foulest judicial murder ever recorded, to show that though a sovereign, she might be tried in England for an alleged offence against its laws. He too might have cited the trial of Charles I. as a precedent equally in point, for both objected to the right and jurisdiction of the respective high commissioners to try them ; and both received the same answer, and the same predetermined destiny. The bloody recoids of the doings of the infamous Scroggs and Jeffreys would also furnish precedents to sanction any act of oppression, and would be entitled to as much respect as is the trial of the Scottish queen. Why did he not cite another case, to be found in those bloody state trials, where a nobleman was arrested in the morning on a charge of treason ; was denied a postponement of the trial till the next day, to give him time to prepare for his defence ; and when he asked indulgence till the afternoon, was told it could not be granted, u because in these cases a speedy trial is necessary to secure a conviction.”

*The attorney general seems to suppose that we ask the exer- [ *559 ] cise of the *pardoning power.*Not so, that pre-supposes guilt. We ask the prisoner’s discharge because there is no guilt, no individual responsibility, and because the judicial tribunals have no jurisdiction of any part of the transaction. It is a national concern. In 1 *Knapp's Rep.*316, of cases on appeal to the king in council, in England, a case in point will be found. Elphinstone, one of the defendants, was a high commissioner, acting under the Gov. General of the East India possessions, and gave the order which Robertson, the other defendant, a British colonel, executed, to seize upon the treasures of Narroba Antia, a nobleman of high rank under the Mahratta government. This was done on the' 17th July, 1817. An action of trover was brought by the representatives of the nobleman in the supreme court of Bombay; and on the 6th of Febuary, 1827, an award was recovered against these officers for 1,745,920 rupees damages, and 16,303 rupees costs.* From this award an appeal was taken to the King of England in council. The cause was argued at great length by Sugden, solicitor general, and Wightman, for the appellants ; and Williams and Den-man for the respondents. Tho whole cause turned on the question of fact, whether there was such a state of war or disturbance, as to make the seizure colorable for that reason. Lord Tenterden delivered the opinion of the council as follows : “ We think the proper character of the transaction was that of hostile seizure, made if not *flagi ante,*yet *nondum eessante hello :*regard being had both to the time, the place, and the person ; and consequently that the municipal court had no jurisdiction to adjudge upon the *428subject: but that if any thing was done amiss, recourse could only be had to the government for redress. We shall, therefore, recommend it to his majesty to reverse the judgment.” Here, then, is a case where the officer who gave the command, and the soldier who obeyed, were prosecuted civilly, not criminally for an act done in the nature of war, and the judgment of an enlightened tribunal of statesman and jurists declares, “ that the municipal court had no jurisdiction to adjudge upon the matter,” and that [ *580 *]*the *government alone was answerable for any thing that was done amiss. So we say in the case at bar. Captain Drew and his party who made the attack on the Caroline are not responsible ; nor is Governor Head, who gave orders to Col. McNab ; nor is Col. McNab, who directed the expedition—but the British government alone, from whom reparation has been demanded by the United States government, the injured party. The case cited proves that the municipal courts of this state have no “jurisdiction to adjudge upon the matter”—that this whole proceeding is a usurpation of authority which belongs alone to the federal government, but not to its judicial tribunals. If the courts of this state have no authority or jurisdiction to indict and try McLeod, then clearly they have none to detain or imprison him. There is no fact to warrant the assertion of the attorney general that McLeod pursued and wantonly and inhumanly shot Durfee, on our own territory, as he was flying from the boat. That he was some thirty or forty feet from the water’s edge when he fell, does appear; but that a projectile from a gun fired from the small boats, or the deck of the steamboat, might have overtaken and killed him, without his being pur. sued or seen amid the surrounding darkness is most probable. McLeod has on oath alleged the facts, which are fully confirmed by all the documents, and now undisputed, and which can never be denied or disproved, that show his imprisonment or detention to be unlawful, and that he is entitled to his discharge. He therefore asks this court to dispose of him “ as the justice of the case requires,” in pursuance of the full authority given by our statute.

The question now is, not whether McLeod has or has not committed a homicide, but is he in law a murderer ? This question the code of nations must answer. This court is now sitting in judgment between nations. They are indeed illustrious nations, but the forum is worthy of the cause and the parties—and in this august trial is presented the singular anomaly, that all parties are equally interested in the rendition of the same judgment. On ¡t may be suspended the question of peace or war. The preservation of peace is alike dear to both nations, and both were struggling for [ *561 ] its continuance *when this deeply to be lamented interposition of the municipal authorities of the state occurred, which threatens open rupture. Is it reasonable to suppose that the British nation will continue its friendly negotiation, with a halter about the neck of one of its *429subjects for obeying its orders ? or that after its public avowal by its minister, of the act complained of, and of its readiness to answer, it will submit to the indignity of having McLeod sent back for trial as a murderer ? It seems to us not.

We are now prepared to enter upon the discussion of another important and interesting branch of the case ; one which more immediately concerns the institutions of our own country, their appropriate spheres of action, and their harmonious movements. The United States government is clothed with the exclusive power and duty of taking care of all our foreign relations. Our state government has in charge most of our internal and domestic affairs; each, keeping within its legitimate bounds, will avoid jars and collisions with the other. Under the constitutional exercise of the treaty* making power, redress for this public and hostile invasion of the territory of the United States, the destruction of the steamboat and the killing of a citizen, was at an early day demanded of the British government, by the government of the United States; and the whole matter is still in course of treaty between them, with a view to a full and just settlement. The state of Hew-York, therefore, cannot discreetly or lawfully interpose its municipal jurisdiction, and take cognizance of any part of this public offence against the entire American nation. It is the exercise of an authority by the state, repugnant to the constitution and laws of the United States, and brings the jurisdictions in collision and conflict. Its tendency is to thwart the constitutional exercise of the treaty-making power of the federal government, and to involve the two nations in war. This power is vested exclusively in the United States; *Constitution U. S. art. 2d,*§ *2d.*“ The president shall have power by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur.” *Art.*1, § 10. “ Ho state shall enter into any treaty, alliance or confederation, or grant letters of *marque and reprisal.” The invasion of our [ *562 ] territory, the destruction of the steamboat, and the killing of Durfee, were one entire transaction. The whole was one offence against the United States. Ho one will contend that the state of Hew-York could demand reparation of the British government for any portion of this injury; nor deny that the United States government may, and has properly made the demand of redress, not only for the violation of our territory, but for the destruction of property and life. The general government, therefore, has taken jurisdiction of the entire matter, and that must be exclusive ; for two separate independent jurisdictions cannot lawfully act at the same time upon the same subject. In support of these principles the counsel cited and commented upon the following authorities; 9 *Wheat. Rep.*1, *Gibbons*v. Ogden; 2 *Peters’ Rep.*245; 8 Cranch, 109; 3 Dallas, 199 ; 1 *Crunch,**430103 2 *Dallas,*304 ; 4 Id. 14; 4 *Wheat.*122 ; 5 *Id.*1; 4. *Id.*209; 12 *Wend. Rep.*311.

As the government' has the right to demand, so it has a right to accept redress, and then to acknowledge itself satisfied. Suppose it had already entered into a treaty with Great Britain, by which that government had acknowledged its wrong in the whole affair; had stipulated to pay the value of the property destroyed, and to provide for the surviving family or relatives of Durfee; and our government had acknowledged itself satisfied :—will any one contend that a civil suit could still be maintained by the owner of the boat against the attacking party ? or that a criminal proceeding for murder could still be had against any of those engaged in the affair ? Surely not. That which is equivalent to all these proceedings has already been instituted, and is now depending in the high court of nations. The complaint is made—the summons has gone forth—the party has appeared and answered, and the trial is now going on ; and no American should entertain a doubt that the issue will be just and honorable to all concerned. In a suit brought in this highest court of original jurisdiction, it is enough to arrest all proceedings, to show that a suit for the same subject matter was before brought and is still depending in the most petty tribunal [ *563 ] in the state. Shall not the same rule obtain here ? *Can an *inferior*court oust this of its jurisdiction; and shall the same power be denied to the high court of nations, by this tribunal now sitting in judgment upon the affairs of nations ? This court cannot fail to perceive, that the finding of this indictment, the arrest and imprisonment of McLeod» directly conflict with the exercise of this high power by the United States government. Is it too much to say, that they have probably already arrested the negotiation—the peaceable mode of trial between nations ; and that it cannot again be resumed until this difficulty is removed ; that the denial of this motion, and the bringing McLeod to trial, may involve our country in war ?

But it is said the laws of the state of New-York have been violated, and that her honor and dignity must be vindicated. No other than the law of nations has been violated, and according to that code must satisfaction be sought and obtained. The honor and dignity of the state cannot be promoted by a disregard of those laws, or of her own duties toward the federal government. Of all the states in the Union, New-York, because of her position, power and dignity, should be the most careful not to trenchupon the acknow-, lodged jurisdiction of the general government.

But let us examine this case, in view of other powers of the general government. If it fail to obtain satisfaction by treaty for this entire offence, what then is to be done ? Can it refer the matter, or any portion of it, back *431to the state of Hew-Yorlc, to be redressed in her tribunals ? Ho, it has yet a strong arm to stretch forth, whose power has been felt, and will again be felt, when justice and national honor require it. *Const. U. S. Art.*1, § 8 : “ Congress shall have power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.” “ To raise and support armies.” “ To provide and maintain a navy.” In this constitution there is power enough, and this portion of it belongs exclusively to the federal government. The act in which McLeod is alleged to have participated, being the exercise of a public force of Great Britian, and of a hostile character, becomes the subject of reclamation, reprisal and war, on the part of the government of the United States, *as it shall see fit, on a [*564] failure to obtain acknowledgment and indemnity for the offence and injury by negotiation. Any interference of the state authority is, and will be incompatible with the exercise of this high power. Suppose congress should anthorize reprisals to be made, and the property of British subjects should bo taken, until the government felt itself satisfied for the entire injury made compensation to the owners of the property destroyed, and provided for the survivors or the friends of Durfee—would not this settle the whole matter? Could Wells still prosecute for his steamboat ? or the state of Hew-Yorlc try, convict and execute for the murder ? Suppose, again, that congress should declare war for this offence, because satisfaction is denied; and after the waste of millions of treasure, and the loss of thousands of lives, peace should be concluded; would it not cancel the offence, and every part of it ? Surely the contrary will not be contended for; nor but that congress may rightfully exercise all these powers, and bring about this result. It cannot be denied that the killing of Durfee is as much embraced within the scope of these powers as any other portion of. this offence. Ho one will deny the right of the provincial authorities to kill and capture the invaders of Havy island, or those engaged in furnishing them munitions of war, while found within their jurisdiction. If the steamboat had been found at the island, instead of at Sclilosser, and there destroyed, with all on board, it might have been barbarous, but would it have been cause of complaint or war ? Ho man in his senses will pretend it. Then wherein is the offence ? Clearly in the hostile invasion of our territory. Against whom committed ? Hot the state of Hew York, but the United States. Their rights and their laws are alone violated; and they alone, through their government, can demand satisfaction. The destruction of the steamboat was the object to be accomplished by this violation ; the killing of Durfee was a mere incident to this warlike measure. All form one entire national offence, and call only for entire national redress. This redress can be sought only in the wray known to the laws of nations. Had this violation of our territory been at a place within the exclusive jurisdiction of the United States,* as [ *565 ] *432a fort, an arsenal, the district of Columbia, or one of our territories, the trial of McLeod, after reparation had been demanded, would be wholly incompatible with the pending negotiations between the two governments, and alike unworthy of the honor and dignity of both. But as between the United States and all foreign nations, we are one people, possessing one territory, having one interest, one voice, one.duty, one responsibility. All, all are the United States. New York is not, Delaware is not, and therefore it is that the general government, and all its- citizens, are alike responsible for the action of the court of general sessions of Niagara, where this indictment was found, and for the judgment of this court on this vastly important question. Nations are alone known to each other, as friends, by their ambassadors ; as enemies, by their armies. Of these New-York has neither; they are forbidden her by the fundamental law of our government. As well as the state of New-York, might Schlosser raise her voice of complaint that her territory was violated, and her honor and dignity stained, and demand reparation therefor. No; it is the territory of the United States alone which has been violated, *her*citizen slain, the property of *her*citizen destroyed. No hostile foot can tread her soil that does not tread upon the whole nation.

We deny the right to put the prisoner upon his trial, in any court, whether of the state or the nation. They are both destitute of jurisdiction. The constitution of the United States clothes the general government with exclusive jurisdiction of this offence, and gives it exclusively to the executive and legislative departments of that government. The one has lawfully taken cognizance of it, and of every part of it; and may God in his mercy forbid the necessity of its transfer to the other.

The offence involves not individual guilt, neither does it call for individual expiation. If McLeod was one of Captain Drew’s party, (which is admitted only for the purpose of this argument,) what then ? He was a British subject, owing allegiance to his government, bound to obey her orders. He kept his faith ; he, with others, rallied to her standard when her [ *566 ] territory was invaded by a band of armed men, amid the *roar of cannon and the din of war ; yes, open war, which threatened the subversion of her government in her Canadian provinces. He obeyed her orders, and fulfilled his duty ; and think, this court, that while he felt the duty of allegiance, Great Britain will fail to acknowledge the reciprocal duty of protection ? No, numerous and deeply interested as is the audience attending this argument, should the state of New-York so far forget the duties and obligations imposed by the law of nations, and by the constitution of the United States, as through this high tribunal to deny McLeod’s discharge, and send him down to a circuit for trial, there is too much reason to believe that we should be surrounded by a far more numerous and a very *433different audience; none other than a British fleet on our coast, and a British army on our frontier, and instead of witnessing the conviction and execution of one man, we should have to mourn the slaughter of thousands.

If war must come, let it come. As Americans we will meet it; but let us not forget, that “he is doubly armed whose cause is just.” Great Britain has avowed this open, flagrant violation of our territory, with all that was done. Let us take her at her word, and hold her to her responsibility. When she has denied our right, and refused to make suitable and honorable reparation ; when moderation and forbearance cease to be virtues, then will the President of the United States inform the council of the nation of the true state of the question, of which we . know so little, and then shall its collected wisdom choose its own time and mode of redress. The trial of McLeod savors of cowardice and revenge, and is unworthy of our country; but the trial of the British nation, we, as Americans, understand ; and when necessary, as Americans, will attend. In that trial there will be no British party on this side the waters.

But let this most troublesome and embarrassing difficulty be removed, in the only way in which it can be done in law or honor, and leave the United States government in the free exercise of its constitutional powers, and there is every reason to believe, that all the great questions which now agitate the two nations will be speedily, justly, and honorably ‘"settled; their peace be perserved, and the prosperity and hap- [ *567 ] piness of our country be perpetuated to after genrations. Let the national and state governments continue to move only in their own respective spheres, regarding alike the rights of each other and the law of nations; let them cherish their own honor and dignity, by regarding the honor and dignity of other nations; and not only the attorney general, but all of us, will be satisfied with the respect according to the exclamation, “ I am an American citizen.”

*

A&. *Fox to Mr. Forsyth.*

*Washington Jan.*4, 1838.

Sib : I have the honor to enclose to you an official dispatch, dated the 23d ultimo, which I have received from Sir Praneis Head, Lieutenant Governor of Upper Canada.

It appears from the statement contained in this despatch,—and I lament to say that the same facts are fully atld notoriously confirmed by information which has reached me through various other channels—that a part of the British territory of Upper Canada is, at this moment, actually invaded, the peace and safety of the inhabitants disturbed, and the existence of the Provincal government threatened by a formidable body, of armed men, proceeding from the United States, furnished with artillery and ammunition, and fully equipped for war. These piratical invaders, who are now established at a point called “ Navy Island,” on the Canadian side of the river Niagara, consist, in part, of outlaws who have fled from Upper Canada after the suppression of the late partial insurrection; in part also of American citizens, and of men of other nations who had been recruited for the present felonious attempt within the confines of the United States. They are commanded by a native American, of the name of Van Rensselaer ; they continue openly and publicly to procure from a number of American towns near to the Canadian frontier, provisions, arms, ammunition, and all other things necessary *to*sustain their criminal enterprise. Their strength and numbers, and means of violence, are daily increasing, by recruits and contributions raised within the United States, in defiance of the known laws of the republic; in defiance, also, of the recorded wishes and feelings of all respectable classes of the American people, and to the scandal of public order and good neighborhood between peaceful nations.

I well know that the President and the government of the United States do, equally with myself, deplore and condemn these strange and unlawful proceedings, which threaten no less a calamity than the waging of an unprovoked war, by a portion of the American people, against a neighboring portion of her Majesty’s subjects, at a time when the two people in general, and their governments, are not only united in peace, but are studying to enlarge the sphere of a happy and beneficial intercourse, and to strengthen the bonds of national affection and friendship. I feel, therefore, that I am doing no unfriendly act in pointing out to the Government of the United States the facts which have been brought officially to my knowledge, showing how the laws of the public are transgressed, and the wishes of its best citizens defied, to the detriment of a friendly and kindred people; and I solemnly appeal to the supreme government qf the republic promptly to interpose its sovereign authority for arresting these disorders, before they shall have produced a train of disasters and of national resentments which it is equally the devout wish of both governments to avert.

*373I have the honor to be, sir, with high respect and consideration, your most obedient and humble servant. H, S. POX.

Hon. John Eorsyth, &c. «

[It is not deemed important to add here the official despatch of Sir Prancis Head.]

*Mr. Forsyth to Mr. Fox.*

Department op state,

*Washington, January*5, 1838.

Sir: I have the honor to receive your communication of the 4th instant, with the official despatch of the 23d ultimo, from the Lieutenant Govenor of Upper Cadada. The President, to whom they were immediately submitted, has directed me to reply that he perceives, with great satisfaction, that you are duly sensible, not only of the wishes and feelings of this Government in relation to the unfortunate state of things on the frontiers of the United States, but of the general disposition of the people and authorities of this country to cultivate and extend that beneficial intercourse with Great Britrin so well adapted to strengthen the existing bonds of national affection and friendship between the two nations.’

You have already seen, in the public journals, the efforts that have been made, and are now malting, both by the general and state governments, to prevent any of our misguided citizens from interfering in the disturbances of the neighboring territory of the Canadas. I have had the honor, also to make you acquainted with other measures which are in progress to the same effect, founded upon the information received from the officers of the United States who were sent to the frontiers to prevent violations of our laws; and I now repeat to you, formally, for the satisfaction of your government, and to relieve the anxieties of the authorities of Upper Canada, that all the constitutional power vested in the Executive will be exerted to maintain the supremacy of those laws, which were passed to fulfil the obligations of the United States to all friendly nations, who may be unfortunately engaged in foreign or domestie war.

Assurances to that effect to the authorities of Upper Canada may be given in the strongest terms ; and the President does not doubt that this object, so desirable in the present crisis to both governments, will be accomplished, if insurmountable obstacles are not thrown in the way by the rashness of persons within the dominions of her Britanic Majesty, who, in their resentment or apprehensions, may think themselves authorized to make aggressions upon the United States for injuries committed by individuals who are violators of our laws, and who escape prosecution and punishment under a temporary excitement produced by the events on the frontier; and by the menaces directed against our own people by some of her Majesty’s imprudent subjects.

With great respect and consideration, I have the honor to be your obedient servant,

JOHN EOESYTH.

H. S. Eox, Esq. &e.

*Mr. Forsyth to Mr. Fox.*

Department oe State,

*Washington, January*5, 1838.

Sir : By the direction of the President of the United States, I have the honor to communicate to you a copy of the evidence furnished to this Department of an extraordinary outrage committed from her Britanic Majesty’s province of Upper Canada, on the persons and property of citizens of the United States, within the jurisdiction of the State of New-York. The destruction of the property and the assassination of citizens of the United States, on the soil of New-York, at the moment when, as is well known to you, the President was anxiously endeav*374¿ring to allay the excitement, and earnestly Seeking to prevent any unfortunate occurrence on the frontier of Canada, have produced upon his mind the most painful emotions of surprise and regret. It will necessarily form the subject of a demand for redress upon her Majesty’s government. This communication is made to you under the expectation that, through your instrumentality, an early explanation may be obtained from the authorities of Upper Canada of all the circumstances of the transaction, and that, by your advice to those authorities such decisive precautions may be used as will render the perpetration of similar acts hereafter impossible. Not doubting the disposition of the government of Upper Canada to do its duty in punishing the aggressors, and preventing future outrage, the President, nevertheless, has deemed it necessary to order a sufficient force on the frontier to repel any attempt of a like character ; and to make known to you that, if it should occur, he cannot be answerable for the effects of the indignation of the neighboring people of the United States.

I avail myself of this occasion, &c. JOHN FORSYTH.

Hbnry S. Fox, Esq. &c.

*Mr. Forsyth to Mr. Fox.*

Department op State, Washington, *Janunry*19, 1838.

Sir: With reference to my note of the 5th instant, communicating to you evidence of an extraordinary outrage committed from her Britanic Majesty’s province of Upper Canada, on the persons and property of certain citizens of the United States, at Schlosser, within the jurisdiction of the state of New-York, on the night of the 29th ultimo, I have now the honor to transmit to you the copy of a letter recently received from the attorney of the United States for the northern district of New-York, dated the 8th of the current month, with transcripts of sundry depositions which accompanied it, containing additional information in regard to that most disastrous occurrence. A letter from Mr. George W. Pratt, of the 10th of January, with enclosures relating to the same subject, is also sent.

I avail myself of this occasion to renew to you the assurance of my distinguished consideration. JOHN FORSYTH.

Henry S. Fox, Esq., &c.

*Mr. Fox to Mr. Forsyth.*

*Washington, February,*6, 1838.

Sir : With reference to the letters which, by direction of the President, you addressed to me on the 5th and 19th ultimo, respecting the capture and destruction of the steamboat “ Caroline,” by a Canadian force, on the American side of the Niagara river, within the jurisdiction of the state of New-York, I have now the honor to communicate to you the copy of a letter upon that subject which I have received from Sir Francis Head, Lieutenant Governor of the province of Upper Canada, with divers reports and depositions annexed.

The piratical character of the steamboat “ Caroline,” and the necessity of self-defence and self-preservation, under which her Majesty’s subjects acted in destroying that vessel, would seem to be sufficiently established.

At the time when the event happened, the ordinary laws of the United States were not enforced within the frontier district of the state of New-York. The authority of the law was overborne, publicly by piratical violence. Through such violence, her Majesty’s subjects in Upper Canada had already severely suffered; and they were threatened with still further injury and outrage. This extraordinary state of things appears, naturally and necessarily, to have *375impelled them to consult their own security, by pursuing and? destroying the vessel of their piratical enemy, wheresoever theyjjmight find her.

I avail myself of this occasionjto renew to you the assurance of my high respect and consideration.

H. S. POX.

Hon. John Fobbtth, &c.

*Mr. Fox to Mr. Forsyth.*

*Washington, February*16, 1838.

Sir: I have the' honor to acknowledge the receipt of your letter of the 13th instant, relating to the question of the capture and destruction of the piratical steamboat Caroline.

Although I cannot acquiesce in the view which the United States government are disposed to take of the facts connected with that transaction, yet, as this legation is not the final authority competent to decide the question on the part of Great Britain, and as you inform me that a representation will in due time be addressed to her Majesty’s government in England, I consider it most consistent with my duty to avoid entering at present into any controversy upon the subject. It will remain for her Majesty’s government at home, when the whole evidence of the case shall have been produced, to form such deliberate resolution thereupon as reason, honor, and justice, shall dictate. I avail myself of this occasion to renew to you the assurance of my high respect and consideration.

H. S. POX.

The Hon. John Forsyth, &c.

*Mr. Stevenson to Mr. Forsyth.*

Legation of United States, *London, May*24,1838.

Sir : I have now the honor of transmitting to you a copy of my note to Lord Palmerston, in relation to the late outrage committed by the British troops, at Schlosser, upon the rights and sovereignty of the United States.

Upon a careful examination of the evidence and circumstances under which this proceeding took place, I found it to be one of such signal atrocity, that I feel it my duty to present it in that light to her Majesty’s government, and make my note as strong as I could well do, to be respectful.

*** *

*Mr. Stevenson to Lord Palmerston.*

23 *Portland Place, May*22, 1838.

The undersigned, Envoy Extraordinary and Minister Plenipotentiary from the United States, has the honor to acquaint Lord Viscount Palmerston,, her Majesty’s Principal Secretary of, *376State for Boreign Affairs, that, in obedience to instructions from his government, it has been made his duty to bring to the view of her Majesty’s government the accompanying documentsj detailing the particulars and proofs of a signal and extraordinary outrage committed by British troops, from the ."province of Upper Canada, upon the persons and property of citizens of the United States, within its limits and jurisdiction, and which, in the view of the President of the United States, form the subject of a demand for redress upon her Majesty’s government.

In communicating this evidence to your Lordship, the undersigned deems it proper to accompany it with an explanation of the manner in which it has been obtained, and the delay which has taken place in not presenting the subject at an earlier period to the consideration of her Majesty’s government.

By an examination of these papers, it will he seen that, as soon as information of the proceeding was communicated to the Executive of the United States, an official note, by the direction of the President, was addressed by the Secretary of State to her Majesty’s minister, Mr. Box, communicating copies of the statements which had been received, and asking an immediate explanation of the circumstances under which the aggression had taken place. Mr. Borsyth’s letter bears date on the 5th of January last, and the papers transmitted to Mr. Box consisted of a letter from the District Attorney of the United States, and the affidavits of the captain and nine others who were on board the steamboat at the time of her seizure and destruction in the port of Schlosser. Copies of those will be found among the papers now transmitted to Lord Palmerston.

These statements would have justified an immediate appeal to her Majesty’s government for suitable reparation; but the President deemed it expedient, preparatory to any demand being made, to have the subject thoroughly investigated, and the facts ascertained. It was, moreover, anticipated that the conduct of the individuals, concerned in this alleged outrage would, under the spontaneous act of their own government, have undergone that official investigation which such a proceeding would so justly seem to call for.

Orders were given to the law officers of the government to take immediate steps for the purpose of collecting the witnesses, and obtaining the fullest information of all the circumstances connected with the transaction.

This was accordingly done, and the body of evidence, which the undersigned has now the honor of communicating, was the result.

Lord Palmerston will then perceive that the delay which has taken place, in not presenting the subject sooner to the notice of his government, has proceeded from no want of a just sensibility to the proceeding, or any doubt of its being a proper subject for redress, but from a desire on the part of the President to accompany the demand with irrefragable proofs as to the nature and extent of the outrage committed.

*377This evidence having been obtained and transmitted to the President, he has, after full consideration, and under a deep sense of what was due as well to the government of the United States as that of her Majesty, deemed the proceeding a fit one for the demand of reparation.

With this demand the undersigned has been charged, and he feels that he shall best fulfil the wishes of his government, and manifest the justice of the appeal which he has been instructed to make, by confining himself to a brief recapitulation of the facts established by the documents which he has the honor of transmitting to Lord Palmerston, and the principles which govern them.

The following are the prominent and important ct s :

On the morning of the 29th of December last, a steamboat called the “ Caroline,” of Buffalo, in the state ot New-York, left that port for Schlosser, another port of that state, upon the eas side of the Niagara river.

That this vessel was the property of William Wells, of the said city of Buffalo, and was commanded by Captain Gilman Appleby, both of whom are citizens of the United States.

That she was cleared with the view of running between the said ports of Buffalo and Schlos» ser, and for the purpose of carrying passengers and freight.

That, on her moving down the Niagara river, she came to at Black Rock dam, and whilst in port, the captain caused the American ensign to be run up.

That, soon after leaving Black Rock harbor, several musket shots were discharged at the said boat, from the Canada shore, but without doing any injury.

That i.er course down the river was continued without further molestation, and she touched at Navy island, where a number of passengers disembarked, and sundy articles of ft\ ight were landed.

That from this place she was run over to Schlosser, where she arrived about three o’clock, P.M.

That, subsequently, two'trips only were made by the boat to Navy Island; and on her return to Schlosser, after the last trip that day, she was made fast to the dock at that place with a chain cable, about six o’clock in the evening.

That the officers and crew of the Caroline were ten in number, and that in the course of the evening of that day, twenty-three other individuals, (ci izens of the United States,) came on board the boat, and requested that they might be permitted to remain there during the night, as they were unable to procure lodgings at the only tavern or,) inn at Schlosser; that this' request was grant d, and they retired to rest, as did the officers and crew of the said boat, with the exception of the night watch.

That about midnight an alarm was given, in consequence of the approach from the river of four or five boats; and a few moments after, the Caroline was boarded by a number of armed men from said boats, who immediately commenced an indiscriminate attack, with' pistols, *378swords, and cutlasses, upon the unarmed crew and inmates of said vessel, under the cry of “give no quarter,” several of whom were slaughtered.

That the steamboat was yielded without resistance, and was immcdiataly afterward set on fire in several places, and cut loose from the dock attached to the main land, towed into the current of the river, abandoned, and ultimately went over the Niagara falls.

That one man, Amos Durfee, (a citizen of -Buffalo,) was killed and left dead on the dock at Schlosser, and others, who escaped with life, most severely wounded and disabled, and amongst them was the captain.

That several individuals who were on board the boat are are still missing, and there is strong reason for believing that they were either murdered or found a watery grave in the cataract of-the river.

That immediately after the boat Was set on fire and cast adrift in the stream, beacon lights were discovered upon the Canada shore near Chippewa ; and when sufficient time had elapsed to enable the armed troops to reach the shore, loud and vociferous cheering was heard at that point, inducing a belief, since confirmed and acknowledged, that the outrage was planned and consummated by a portion of the British force stationed at that place. .

It is in proof that there was no fortification of any kind at Schlosser, that hostilities were not commenced on the American side, and that no shot, from cannon or firearms, were discharged fr om the American shore, on the morning of the 29th of December, as pretended by one of the British officers.

It further appears that two persons, probably Luke Walker and Sylvanus Bearn es Wrigley, were taken prisoners and carried to Queenstown, and there coerced by violence and threats to give evidence and unfold the plans of the forces on Navy island.

That the value of the steamboat and property destroyed amounts to about $5,000.

These are important facts disclosed by the documents, and upon which the application for reparation rests. They cannot be pursued without exciting the deepest surprise and regret. Bor their proof, we are not forced to look to doubtful evidence, or to witnesses of doubtful credit. The whole character of the evidence now submitted to her Majesty’s government *is too*clear and striking to leave any doubt as to its truth, although directly at variance, as Lord Palmerston will perceive, with the statements communicated by Mr. Box, on the part of her Majesty’s provincial officers, to the Secretary of State; copies of which will be found with the papers transmitted.

Indeed, so far from the British statements representing correctly the circumstances under which the outrage was committed, it will be seen that they are, in every essential particular, discredited and disproved by the most unimpeachable evidence.

The concurrent testimony of so many witnesses of respectability and standing strip the proceeding of every pretext alleged in its justification, and mark it is as one-of the most offensive and unwarrantable character.

It shows, moreover, that so far from the outrage having been committed under extenuating circumstances of sudden conflict, or in the hurry and excitement of impending war, it was perpetrated after concert and preparation, by an armed and superior force, upon unarmed and *379defenceless men, under cover of night, and circumstances of signal atrocity. It was a proceeding, too, the more unexpected and reprehensible, inasmuch as it was planned and executed at a moment when the earnest efforts of the government of the United States were directed to the preservation of its obligations of neutrality, and whilst both the general and state governments were using every effort in their power to restrain individuals on their northern frontier from unlawfully interfering in the contest between Great Britain and her colonies.

Indeed, at the very moment when the Lieutenant Governor of Upper Canada was declaring to the Provincial Parliament his confidence in the disposition of the American government to prevent its citizens from engaging in the contest that was then raging, and was waiting for replies from the Governor of New York and her Majesty’s minister at Washington, with whom he had communicated, this outrage was, with his knowledge and approbation, planned and executed.

Under such circumstances, it was not to have been expected that the whole proceeding could be regarded by the government of the United States in any other light than as a manifest act of hostile and daring aggression upon its right and sovereignty, utterly inconsistent with all the principles of national law, and wholly irreconcileable with the friendly and peaceful relations of the two countries.

Such is the view which the undersigned has been directed to present to her Majesty’s government; and here he would rest the appeal with which he has been charged, but for the grounds which have been relied on by the provincial authorities in justification of the proceedings, and which were communicated by Mr. Fox to Mr. Forsyth, in his note of the 6th of February last.

To these grounds it may not be unimportant that he should now briefly advert. It is alleged that the character of this vessel was piratical; that she was the property of robbers and pirates, and employed in their service, in carrying men, arms, and munitions of war, from the United States to Canada; and consequently, that she was liable to seizure and destruction, not only *without*but *within*the limits and jurisdiction of the United States.

In the first place, it is denied that this vessel, under any principle of the law or practice of nations, could be regarded as piratical, or those on board of her treated as pirates and robbers.

And here it becomes necessary to ascertain the character and nature of the interest between Great Britain and her Canadian colonies.

The following principles are assumed as incontrovertible:

That civil wars are not distinguishable from other wars, as to belligerent and neutral rights; that they stand upon the same ground, and are governed by the same principles; that whenever a portion of the state seek by force of arms to overthrow the government and maintain independence, the contest becomes one *de facto*of war. That in such contests the principles of public law in relation to belligerents must govern, and all the rights which a state of war gives to public enemies are to be allowed to the respective parties engaged in them.

Applying these principles to the contest between Great Britain and her colonies, it must be regarded, as far as otner nations are concerned, *as a civil war,*and treated accordingly. Now, it may be admitted that foreigners, uniting themselves with a belligerent, become the enemy of *380the party to whom that belligerent is opposed; but in doing so, they only subject themselves to what the belligerent may lawfully be subject, and are entitled to all the rights to which the belligerent would be entitled. If, then, citizens of the United States, by associating themselves with the Canadian insurgents, became identified with them as enemies of Great Britain, they could only be regarded as such whilst in arms, and were to be treated in like manner. By interfering, they made themselves parties in the civil war, and Great Britain could only subject them to the same penalties which she could rightfully enforce against her revolting subjects, with whom, *quoad hoc,*they had become allies.

Voluntary aid and succor, therefore, from foreigners, to persons conspiring to subvert or change their government, can neither be regarded as *piracy*or punished as *criminal,*unless the ¡offending party be taken in arms against the government, and within its jurisdiction.

This doctrine, it is needless to remind Lord Palmerston, stands upon the clearest principles of natural justice and national law, and the usage of all civilized nations ; and Great Britain has herself maintained it, and h.c¡r apnals are full of instruction on the subject.

It is wholly immaterial, then, what the contraband character and employment of this vessel was. She was not piratical, nor could those on board of herbe punished aspirates or outlaws. Piracy, by the public law, can only consist in acts which are offences against all nations.

But if if were not so, and she was admitted to be piratical, and not the property of citizens of' the United States, but of the British insurgents, still there is nothing gained in defence of this proceeding, unless it can also be shown that the British authorities had the right to seek and destroy her, by an armed force, within the limits and jurisdiction of a sovereign and independent state.

Of all the principles of public law, there are none mpre sacred than those which secure the immunity of neutral territory from the exercise of acts of hostility or war, by a foreign power.

The law of nations, therefore, forbids all use of neutral territory for hostile purposes, and emphatically declares that the rights of war shall only be exercised within the territory of the belligerent, on the high seas, or without the jurisdiction of any other nation. Hence it is forbidden, as well by universal as international law, to commence or continue any act of violence against enemies’ ships within the limits and jurisdiction of a neutral nation. Every entrance, therefore, into neutral territory, with hostile intention, is denounced as unlawful This is the general and acknowledged doctrine of the public law, and of essential importance to the tranquillity and security of nations. If, then, the individuals on board the Cappline were violators of the neutrality of the United States and the rights of war, by giving aid and succor to the insurgents, and had forfeited all claim to the protection of their country, they were yet not punishable, within the territorial limits of the United States, by Great Britain or hep officers, but W.ero alpn.e amenable to the law of the United-States.

*381But, it will be said there are exceptions to this rule, and cases arising out of necessity and self-preservation, which suspend in favor of a belligerent, *sub modo,*the right of aneutral nation, and justify the invasion of its territory. The cases are admitted, but they are few and defined. All writers on the law of nations concur in opinion that there can be no entry into the territory of an independent state, but where consent is first given, or where the entry is innocent, and unjustly refused, or in cases of extreme *state necessity.*These are the only exceptions to the general rule. If the right be claimed (as it is admitted to be in this case) on the ground of necessity, we must look to the law of nations for the character and degree of necessity, and the conditions annexed to its exercise. How, all publiseits agree that the necessity which can justify the invasion of neutral territory must be imminent and extreme, and involving impending destruction. It is never permitted for purposes of convenience or ordinary defence, or as a measure of retaliation, however atrocious the injury may have been which it is intended to punish. Wherever, then, there has been a clear invasion of neutral territory, the proof lies-upon the party to bring himself within the exception, and show the character of the necessity under which the violation took place. Was the present such a case? Was the necessity even remote, much less extreme and imminent ? What advantage was gained by the destruction of this vessel, but to revive and swell the deep excitement which then existed on the American frontier, and which the government of the United States were using its best efforts to assuage ? None, certainly. On the contrary, to suppose for a moment that such a measure was dictated by the extreme necessity of self-preservation, which was in fact not even useful, or in any manner conducive to such an end, would be preposterous. It can hardly, then, be presumed that her majesty’s government will maintain that this was a case embraced within the exceptions and justified by the principles of public law or the usages of civilized nations. There is not a feature in the whole proceeding to warrant such an opinion. On the contrary, the case, as proved, is one of an open and admitted invasion of the territory and sovereignty of an independent nation, by the armed forces of a friendly power, and the destruction of the lives and property of its citizens under circumstances of peculiar aggravation, not less injurious to the character and interests of her Majesty’s government than those of the United States.

That such will be the view which her Majesty’s government will take of this proceeding the undersigned cannot donbt.

To the alleged breach of neutrality by the American government, it it is not necessary nor would it be proper that the undersigned should, at this time, do more than briefly advert. Although attempts have been made by the perpetrators of this outrage, and others of her Majesty’s provincials government, to involve the United States and its officers in the odium of countenancing if not participating in the breach of neutrality, the undersigned is happy in knowing that they have signally failed. They were made without the slightest evidence of their truth, and under circumstances which entitled them to no credit. Her Majesty’s government have not been insensible to the efforts which were made, both by the general and state governments, to enforce and preserve their obligations of neutrality. Faithful to the principles which it has always professed,"and on which it has ever acted, the American government determined, from the first moment of the contest, to maintain the strictest neutrality. Every thing was done which her Majesty’s government had a right to expect, and to the promptand vigorous measures adopted by the United States are, in a great measure, to be attributed the cessation of hostilities within the Canadian provinces. The sincerity of the American government in preserving its *382relations of neutrality and peace will therefore be best seen in the early manifestation of its views, and the steps taken to restrain its misguided citizens from interfering in the disturbances of her Majesty’s colonies i These efforts, moreover, were spontaneous and uncalled for. So far from being influenced or stimulated by any requisition on the part of her Majesty’s government, they were prompted solely by its own views of duty and interest, and its love of peace. If, however, the United States had failed to preserve its neutral relations, it would have afforded no ground of defence or justification of this proceeding. That would have been a matter for adjustment between the two governments, and not left to the rashness and caprice of subordinate officers, such as were concerned in the perpetration of this outrage, and upon whose discretion and judgment such little reliance is to be placed. If there had, indeed, been any breach of neutrality on the part of the United States, it was for her Majesty’s government alone to have vindicated its rights upon the principles of international law. The ease, then, is one of open, undisguised, and unwarrantable hostility.

The undersigned has therefore been instructed to invite the early attention of her Majesty’s government to the subject, and, in appealing to its sense of honor, justice, and magnanimity, to express the confident expectation of the President of the United States that the whole proceeding will not only be disavowed and disapproved, but that such redress as the nature of the case obviously requires will be promptly made.

The undersigned prays Lord Palmerston to accept assurances of his distinguished consideration and respect.

A. STEVENSON.

Lord Viscount Palmebston, &c.

*Mr. Stevenson to Mr. Forsyth.*

Legation Of the United States,

London, *June*26, 1838.

Sib : * * * * I have also the honor of forwarding to you a copy of Lord Palmerston’s note, acknowledging the receipt of mine of the 22d of May, in relation to the case of the Caroline. It was not received until some days after the day it bears date.

*Lord Palmerston to Mr. Stevenson.*

*Foreign*Office, *June*6, 1838.

The undersigned, her Majesty’s Principal Secretary of State for Foreign Affairs, has the honor to acknowledge the receipt of the note of Mr. Stevenson, Envoy Extraordinary and Minister Plenipotentiary from the United States of America, dated the 22d ultimo, together with the documents accompanying that note, relative to the destruction of the United States steamboat “ Caroline,” by a British expedition from the province of Upper Canada; and the undersigned has the honor to inform Mr. Stevenson that her Majesty’s government will not fail to give the note and its accompanying documents that attentive consideration which is due to the importance of the subject to which they relate.

The undersigned has the honor to renew to Mr. Stevenson the assurances of his high consideration.

PALMERSTON.

*383■ *Mr. Fox to Mr. Forsyth.*

*Washington December \3th,*1840.

Sir : I am informed by hiá excellency the Lieut. Governor of the province of Upper Canada, that Mr. Alex. McLeod, a British subject, and late deputy sheriff of the Miagara District in Upper Canada, was arrested at Lewiston, in the state of New-York, on the 12th of last month, on a pretended charge of murder and arson, as having been engaged in the capture and de-r struction of the piratical steamboat “ Caroline,” in the month of December, 1837. After a tedious and vexatious examination, Mr. McLeod was committed for trial, and he is now imprisoned in Lockport jail.

I feel it my duty to call upon the government of the United States to take prompt and effectual steps for the liberation of Mr. McLeod. It is well known that the destruction of the, steamboat “ Caroline” was a public act of persons in her majesty’s service, obeying the order of their superior authorities.

That act, therefore, according to the usages of nations, can only be the subject of discussion between the two national governments: it cannot justly be made the ground of legal proceedings in the United States against the individuals concerned, who were bound to obey the authorities appointed by their own government.

I may add, that I believe it is quite notorious that Mr. McLeod was not one of the party engaged in the destruction of the steamboat “ Caroline,” and that the pretended charge upon - . which he has been imprisoned, rests only upon the perjured testimony of certain Canadian outlaws, and their abettors, who, unfortunately for the peace of that neighborhood, are still permitted by the authorities of the state of Mew-York to infest the Canadian frontier.

The question, however, of whether Mr. McLeod was or was not concerned in the destruction of the “ Caroline,” is beside the purpose of the present communication. That act was the public act of persons obeying the constituted authorities of her Majesty’s province. The national government of the United States thonght themselves called upon to remonstrate against it: and a remonstrance which the President did accordingly address to her Majesty’s government, is still, I believe, a pending subject of diplomatic discussion between her Majesty’s government and the United States’ legation in London. I feel therefore, justified in expecting that the President’s government will see the justice and the necessity of causing the present immediate release of Mr. McLeod, as well as of taking such steps as may be requisite for preventing others of her Majesty’s subjects from being prosecuted or molested in the United States in a similar manner for the future.

It appears that Mr. McLeod was arrested on the 12th ultimo; that after the examination of witnesses, he was finally committed for trial on the 18th, and placed in confinement in the jail of Lockport, awaiting the assizes which will be held there in February next. As the case is naturally occasioning a great degree of excitement and indignation within the British frontier, I earnestly hope that it may be in your power to give me an early and satisfactory answer to the present representation.

I avail myself of this occasion to renew to you the assurance of my distinguished consideration.

(Signed)

H. S. FOX.

Hon. John Forsyth, &c. &c.

*384*Mr. Forsyth to Mr. Fox.*

Department op State,

Washington, 26</i *Dec.*1840

H. S. Pox, Esq. &c. &c &c.

Sir: I have the honor to acknowledge, and have laid before the President, your letter of the 13th instant, touching the arrest and imprisonment of Alexander McLeod, a British subject, and late deputy sheriff of the Niagara district, in Upper Canada, on a charge of murder and arson, as having been engaged in the capture and destruction of the steamboat “ Caroline,” in the month of December, 1837 ; in respect to which you state that you feel it your duty to call upon the government of the United States to take prompt and effectual steps for the liberation of Mr. McLeod, and to prevent others of the subjects of her Majesty, the Queen of Great Britain, from being persecuted or molested in a similar manner, for the future.

This demand, with the grounds upon which it is made, has been duty considered by the President, with a sincere desire to give to it such a reply as will not only manifest a proper regard for the character and rights of the United States, but, at the same time, tend to preserve the amicable relations which, so advantageously for both, subsist between the country and England. Of the reality of this disposition, and of the uniformity with which it has been evinced in the many delicate and difficult questions which have arisen between the two countries in the last few years, no one can be more convinced than yourself. It is, then, with unfeigned regret that the President finds himself unable to recognize the validity of a demand, a compliance with which yon deem so material to the preservation of the good understanding which has been hitherto maintained between the two countries.

The jurisdiction of the several states, which constitute the Union, is, within its appropriate sphere, perfectly independent of the federal government. The offence with which Mr. McLeod is charged was committed within the territory, and against the laws and citizens of the state of New-York, and is one that comes dearly within the competency of her tribunals. It does not, therefore, present an occasion where, under the constitution and laws of the Union the interposition called for would be proper, or for which a warrant can be found in the powers with which the federal executive is invested. Nor would the circumstances to which you have referred, or the reasons you have urged, justify the exertion of such a power, if it existed. The transaction out of which the question arises, presents the case of a most unjustifiable invasion, in time of peace, of a portion of the territory of the United States, by a band of armed men from the adjacent territory of Canada, the forcible capture by them within our own waters, and the subsequent destruction of a steamboat, the property of a citizen of the United States, and the murder of one or more American citizens. If arrested at the time, the offenders might unquestionably have been brought to justice by the judicial authorities of the state within whose acknowleged territory these crimes were committed; and their subsequent voluntary entrance within that territory, places them in the same situation. The president is not aware of any principle, of international law, or, indeed, of reason or justice, which entitles such offenders to impunity before the legal tribunals, when coming voluntarily within their independent and undoubted jurisdiction, because they acted in obedience to their superior authorities, or because their acts have become the subject of diplomatic discussion between the two governments. These methods of redress, the legal prosecution of the offenders, and the application to their government for satisfaction, are independent of each other, and may be separately and simultaneously pursued. The avowal or justification of the outrage by the British authorities, might be a ground of complaint with the government of the United State*, distinct from the violation of the territory and laws of the state of. New-York. The *385application of the government of the Union to that of Great Britain, for the redress of an authorized outrage of the peace, dignity and rights of the United States, cannot deprive the stale of New-York of her undoubted right of vindicating, through the exercise of her judicial power, the property and lives of her citizens. You have very properly regarded the alleged absence of Mr. McLeod from the scene of the offence at the time when it was committed, as not material to the decision of the present question. That is a matter to be decided by legal evidence ; and the sincere desire of the President is, that it may' be satisfactorily established. If the destruction of the “ Caroline” was a public act of persons in her Majesty’s service, obeying the order of their superior authorities, this fact has not been before communicated to the government of the United States by a person authorized to malte the admission; and it will be for the court which has taken cognizance of the offence with which Mr. McLeod is charged, to decide upon its validity when legally established before it.

The President deems this to be a proper occasion to remind the government of her Britannic Majesty, that the case of the “ Caroline ” has been long since brought to the attention of her Majesty’s principal secretary of state for foreign affairs, who, up to this day, has not communicated its decision thereupon. It is hoped that the government of her Majesty will perceive the importance of no longer leaving the government of the United States uninformed of its views and intentions upon a subject which has naturally produced much exasperation, and which has led to such grave consequences.

I avail myself of this occasion to renew to you the assurance of my distinguished considertion.

(signed)

JOHN EOBSYTH.

*Mr. Fox to Mr. Forsyth.*

Washington, *December*29, 1840.

Sib: I have the honor to acknowledge the receipt of your letter of the 26th instant, in which, in reply to a letter which I had addressed to you on the 13th, you acquaint me that the president is not prepared to comply with my demand for the liberation of Mr. Alexander Me- */*Leod of Upper Canada, now imprisoned at Lockport, in the state of New-York, on a pretended charge of murder and arson, as having been engaged in the destruction of the piratical steamboat “ Caroline,” on the 29th of December, 1837.

I learn with deep regret, that such is the decision of the President of the United States : for I cannot but foresee the very grave and serious consequences that must ensue, if, besides the injury already inflicted upon Mr. McLeod of a vexatious and unjust imprisonment, any further harm should be done to him in the progress of this extraordinary proceeding.

I have lost no time in forwarding to her Majesty’s government in England, the correspondence that has taken place, and I shall await the further orders of her Majesty’s government with respect to the important question which that correspondence involves.

But I feel it my duly not to close this communication without likewise testifying my vast regret and surprise at the expressions which I find repeated in your letter with reference to the destruction of the steamboat “ Caroline.”

I had confidently hoped that the first erroneous impression of the character of that event, imposed upon the mind of the United States government by partial and exaggerated representations, would long since have been effaced by a more strict and accurate examination of the facts. Such an investigation must even yet, I am willing to believe, lead the United States *386V government to the same conviction with which her Majesty’s authorities on the spot, were impressed, that the act was one in the strictest sense of self-defence, rendered absolutely necessary, by the circumstances of the occasion, for the safety and protection of her Majesty’s subjects, and justified by the same motives and principles, which, upon similar and well known occasions, have governed the conduct of illustrious officers of the United States. The steamboat “ Caroline” was a hostile vessel, engaged in piratical war against her Majesty’s people, hired from her owners for that express purpose, and known to be so beyond the possibility of doubt. The place where the vessel was destroyed, was nominally, it is true, within the territory of a friendly power; but the friendly power had been deprived through overbearing piratical violence, of the use of its proper authority over that portion of territory. The authorities of New-York had not been able to prevent the artillery of the state from being carried off publicly at midday, to be used as instruments of war against her Majesty’s subjects. It was under such circumstances, which it is to be hoped will never recur, that the vessel was attacked by a party of her Majesty’s people, captured and destroyed.

A remonstrance against the act in question has been addressed by the United States *to her \*Majesty’s government in England. I am not authorized to pronounce the decision of her Maj''"esty's government upon that remonstrance; but I have felt myself bound to record in the mean time the above opinion, in order to protest in the most solemn manner against the spirited and loyal conduct of a party of her Majesty’s officers and people being qualified, through an unfortunate misapprehension, as I believe, of the facts, with the appellation of outrage or of murder.

I avail myself of this occasion to renew to you the assurance of my distinguished consideration.

(Signed)

H. S. EOX.

The Hon. John Eorsxth, &c. &c. &c.

*Mr. Forsyth to Mr.- Fox.*

Department ox State,

*Washington, Dec.*31, 1840.

Henry S. Fox, Esq. &c. &c. &c.

Sir : I have the honor *to*acknowledge the receipt of your note of the 29th instant in reply to mine of the 26th on the subject of the arrest and detention of Alexander McLeod, as one of the perpetrators of the outrage committed in New-York when the steamboat “ Caroline”' was seized and burnt. Full evidence of that outrage has been presented to her Britannic Majesty’s government, with a demand for redress, and of course, no discussion of the circumstances here can be either useful or proper, nor can I suppose it to be your desire to invite it. I take leave of the subject with this single remark, that the opinion so strongly expressed by you on the facts and principles involved in the demand for reparation on her Majesty’s government by the United States, would hardly have been hazarded, had you been possessed of the carefully collected testimony which has been presented to your government1 in support of that demand.

I avail myself of the occasion to renew to you the assurance of my distinguished consideration:

(Signed)

JOHN FORSYTH.

*387*Mr. Fox to Mr. Forsyth.*

*Washington, February 8th,*1841.

Sir : Reports have reached me, of which, though the details may be inaccurate, I see no reason to doubt the general truth, that Mr. McLeod of Upper Canada, after being admitted to bail by order of the judicial authorities of the state of New-York, has been again made prisoner, and been replaced in confinement in Loekport jail, in obedience to a lawless act of popular violence. This appears to have happened on or about the 28th of last month.

Without recurring at present to the grave international question of the legality of the judicial proceedings instituted against Mr. McLeod by authority of the New-York magistratse, which formed the subject of a former correspondence, and upon which I await the orders of my government, I shall in the mean time be much obliged to you to make known to me, if you are at liberty to do so, what authentic accounts the general government of the United States have received regarding the act of popular violence above reported, which affects the liberty and life of one of her Majesty’s subjects ; and also what course the general government intend to pursue under this new state of circumstances ; in order that I may transmit with the least practicable delay to her Majesty government in England, and to her Majesty’s authorities in Canada, such information as you may be able to communicate to me upon both these points.

I avail myself of this occasion to renew to you the assurance of my distinguished consideration.

H.S.FOX.

The Hon. John Forsyth, &c. &c. &c.

*Mr. Forsyth to Mr. Fox.*

Department of State,

*Washington, 10th Feb’y.*1841.

H. S. Fox, Esq. &e. &c. Ssc.

Sir: I have the honor to acknowledge the receipt of your letter of the 8th instant in relation to Mr. McLeod of Upper Canada, in which you request me to make known to you what authentic accounts the general government of the United States has received regarding Ms continued imprisonment in consequence of alleged popular violence.

TMs department has had no other accounts than those derived from the public newspapers and handbills. Judging from them, one of wMch is herewith enclosed for your inspection, it would appear that you have formed erroneous conceptions of what has occurred.

I avail myself of tMs occasion to renew to you assurances of my distinguished consideration.

JOHN FORSYTH.

*Mr. Fox to Mr. Webster.*

*Washington, March*12, 1841.

The undersigned, her Britannic Majesty’s envoy extraordinary and minister plenipotentiary, is instructed by Ms government to mak;e the following official communication to the government of the United States:

*388Her Majesty’s government have had under their consideration the correspondence which took place at Washington in December last, between the United States Secretary of State, Mr. Forsyth, and the undersigned, comprising two official letters from the undersigned to Mr. Forsyth, dated the 13th and 29th of December, and two official letters from Mr. Forsyth to the undersigned, dated the 26th and 30th of the same month, upon the subject of the arrest and imprisonment of Mr. Alexander McLeod, of Upper Canada, by the authorities of the state of New-York, upon a pretended charge of arson and murder, as having been engaged in the capture and destruction of the steamboat Caroline, on the 29th of December, 1837.

The undersigned is directed, in the first place, to make known to the government of the United States that her Majesty’s government entirely approve of the course pursued by the undersigned in that correspondence, and of the language adopted by him in the official letters above mentioned.

And the undersigned is now instructed again to demand from the government of the United States, formally, in the name of the British government, the immediate release of Mr. Alexander McLeod.

The grounds upon which the British government make this demand upon the government of the United States are these: that the transaction on account of which Mr. McLeod has been arrested, and is to be put upon his trial, was a transaction of a public character, planned and executed by persons duly empowered by her Majesty’s colonial authorities, to take any steps and to do any acts which might be necessary for the defence of her Majesty’s territories, and for the protection of her Majesty’s subjects; and that consequently, those subjects of her Majesty, who engaged in that transaction, were performing an act of public duty, for which they cannot be made personally and individually answerable to the laws and tribunals of any foreign country.

The transaction in question may have been, as her Majesty’s government are of opinion that it was, a justifiable employment of force, for the purpose of defending the British territory from the unprovoked attack of a band of British rebels and American pirates, who, having been permitted to arm and organize themselves within the territory of the United States, had actually invaded and occupied a portion of the territory of her Majesty; or it may have been, as alleged by Mr. Forsyth, in his note to the undersigned of the 26th of December, “ a most unjustifiable invasion in time of peace of the territory of the United States.” But this is a question especially of a political and international kind, which can be dis,cussed and settled only between the two governments, and which the courts of justice of the state of New-York, cannot by possibility have any means of judging or any right of deciding.

„ It would be contrary to the universal practice of civilized nations to fix individual responsibility upon persons, who, with the sanction or by the orders of the constituted authorities of a state, engaged in military or naval enterprises in their country’s cause; and it is obvious, that the introduction of such a principle would aggravate beyond measure the miseries, and would frightfully increase the demoralizing effects of war, by mixing up with national exasperation the ferocity of personal"passions, and the cruelty and bitterness of individual revenge.

Her Majesty’s government cannot believe that the government of the United States, can really intend to set an example so fraught with evil to the community of nations, and the *389direct tendency of which must be to bring back into the practice of modern war, atrocities which civilization and Christianity have long since banished.

Heither can her Majesty’s government admit for a moment the validity of the doctrine advanced by Mr. Forsyth, that the federal government of the United States has no power to interfere in the matter in question, and that the decision thereof must rest solely and entirely with the state of New-York.

With the particulars of the internal compact, which may exist between the several states that compose the Union, foreign powers have nothing to do: the relations of foreign powers are with the aggregate union; that union is to them represented by the federal government; and of that union the federal government is to them the only organ. Therefore, when a foreign power has redress to demand for a wrong done to it by any state of the union, it is to the federal government, and not to the separate state, that such power must look for redress for that wrong. And such foreign power cannot admit the plea that the separate state is an independent body, over which the federal government has no control. It is obvious that such a doctrine, if admitted, would at once go to a dissolution of the union, as far as its relations with foreign powers are concerned; and that foreign powers in such case, instead of accrediting diplomatic agents to the federal government, would send such agents not to that government, but to the government of each separate state; and would make their relations of peace and war with each state, depend upon the result of their separate intercourse with such state, without reference to the relations they might have with the rest.

Her Majesty’s government apprehend, that the above is not the conclusion at wMch the government of the United States intend to arrive; yet such is the conclusion to which the arguments that have been advanced by Mr. Forsyth necessarily lead.

But, be that as it may, her Majesty’s government formally demand, upon the grounds already stated, the immediate release of Mr McLeod; and her Majesty’s government entreat the President of the United States, to take into his most deliberate consideration the serious nature of the consequences which must ensue from a rejection of this demand.

The United States government will perceive that, in demanding Mr. McLeod’s release, her Majesty’s government argue upon the assumption, that he was one of the persons engaged in the capture of the steamboat “ Caroline;” but her Majesty’s government have the strongest reasons for being convinced that Mr. McLeod was not, in fact, engaged in that transaction; and the undersigned is hereupon instructed to say that, although the circumstance itself makes no difference in the political and international question at issue, and although her Majesty’s government do not demand Mr. McLeod’s release, upon the ground that he was not concerned in the capture of the “ Caroline,” but upon the ground that the capture of the “ Caroline” was a transaction of a public character, for which the persons engaged in it cannot incur private and personal responsibility; yet the government of the United States must not disguise from themselves, that the fact, that Mr. McLeod was not engaged in the transaction, must necessarily tend greatly to inflame that national resentment, which any harm that shall be suffered by Mr. McLeod, at the hands of the authorities of the state of New-York, will infallibly excite throughout the whole of the British empire.

The undersigned, in addressing the present official communication, by order of his government, to Mr. Webster, secretary of state of the United States, has the honor to offer to him the assurance of his distinguished consideration.

H. S. FOX

The Hon. Daniel Webstee,

*Secretary of State.*

*390*Mr. Webster to Mr. Fox.*

Department op State,

*Washington, April*24, 1841.

The undersigned, secretary of state of the United States, has the honor to inform Mr. Fox, envoy extraordinary and minister plenipotentiary of her Britannic Majesty, that his note of the 12th of March, was received and laid before the President.

Circumstances well known to Mr. Fox, have necessarily delayed, for some days, the consideration of that note.

The undersigned has the honor now to say, that it has been fully considered, and that he has been directed by the President to address to Mr. Fox the following reply.

Mr. Fox informs the government of the United States, that he is instructed to make known to it, that the government of her Majesty entirely approve - the course pursued by him, in his' correspondence with Mr. Forsyth, in December last, and the language adopted by him on that occasion; and that that government have instructed him “ again to demand from the government of the United States, formally, in the name of the British government, the immediate release of Alex. McLeodthat “ the grounds upon which the British government make this demand upon the government of the United States, are these: that 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 authorities, to take any steps and to do any acts which might be necessary for the defence of her Majesty’s territories, and for the protection of her Majesty’s subjects ; and that consequently those subjects of her Majesty who engaged in that transaction, were performing an act of public duty, for which they cannot be made personally and individually answerable to the laws and tribunals of any foreign country.”

The president is not certain that he understands, precisely, the meaning intended by her Majesty’s government to be conveyed, by the foregoing instruction.

This doubt has occasioned, with the President, some hesitation; but he inclines to take it for granted that the main purpose of the instruction was, to cause it to be signified to the government of the United States, that the attack on the steamboat “ Caroline” was an act of public force, done by the British colonial authorities, and fully recognized by the queen’s government at home; and that, consequently, no individual concerned in that 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 government, 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.

The President adopts the conclusion, that nothing more than this could have been intended to be expressed, from the consideration, that her Majesty’s government must be fully aware, that in the United States, as in England, persons confined under judicial process can be released from that confinement only by judicial process. In neither country, as the undersigned *391supposes, can the arm of the executive power interfere; directly or forcibly, to release or deliver the prisoner. His discharge must be sought in a manner conformable to the principles of law, and the proceedings of courts of judicature. If an indictment, like that which has been found against Alexander McLeod, and under circumstances like those which belong to his case, were pending against an individual in one of the courts of England, there is no doubt that the law officer of the crown might enter a *nolle prosequi,*or that the prisoner might cause himself to be brought up on *habeas corpus,*and discharged, if his ground of discharge should be adjudged sufficient, or that he might prove the same facts and insist on the same defence or exemption on his trial.

All these are legal modes of'proceeding, well known to the laws and practice of both countries. But the undersigned does not suppose, that if such a case were to arise in England, the power of the executive government could be exerted in any more, direct manner. Even in the case of ambassadors, and other public ministers, whose right of exemption from arrest is per.sonal, requiring no fact to be ascertained but the mere fact of diplomatic character, and to arrest whom is sometimes made a highly penal offence, if the arrest be actually made, it must be discharged by application to the courts of law.

It is understood that Alexander McLeod is holden as well on civil as on criminal process, for acts alleged to have been done by him, in the attack on the “ Carolineand his defence, or ground of acquittal, must be the same in both cases. And this strongly illustrates, as the undersigned conceives, the propriety of the foregoing observations; since it is quite clear that the executive government cannot interfere to arrest a civil suit, between private parties, in any stage of its progress; but that such suit must go on to its regular judicial termination. If, therefore, any course, different from such as have been now mentioned, was in contemplation of her Majesty’s government, something would seem- to have been expected from the government of the United States, as little conformable to the laws and usages of the English government as to those of the United States, and to which this government cannot accede.

The government of the United States, therefore, acting upon the presumption, which it readily adopted, that nothing extraordinary or unusual was expected or requested of it, decided, on the reception of Mr. Box’s note, to take such measures as the occasion and its own duty appeared to require.

In his note to Mr. Box of the 26th of December last, Mr. Borsyth, the secretary of state of the United States, observes, that “ if the destruction of the ‘ Caroline’ was a public act, of persons in her Majesty’s service, obeying the order of their superior authorities, this fact has not been before communicated to the government of the United States by a person authorized to make the admission; and it will be for the court which has taken cognizance of the offence with which Mr. McLeod is charged, to decide upon its validity when legally established before it.” And adds, “ the President deems this to be a proper occasion to remind to government of her Britannic Majesty, that the case of the 1 Caroline’ has been long since brought to the attention of her Majesty’s principal secretary of state for foreign affairs, who, up to this day, has not communicated its decision thereupon. And it is hoped, that the government of her *392.Majesty will perceive the importance of no longer leaving the government of the United States, uninformed of its views and intentions upon a subject, which has naturally produced much exasperation, and which has led to such grave consequences.”

The communication of the fact, that the destruction of the “ Caroline” was an act of public force, by the British authorities, being formally made to the government of the United States, by Mr. Fox’s note, the case assumes a decided aspect.

The government of the United States ^entertains no doubt that, after this avowal of the transaction, as a public transaction, authorized and undertaken by the British authorities, individuals concerned in it ought not, by the principles of public law, and the general usage of civilized states, to beholden 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, by public means, cannot desire the punishment of individuals, when the act complained of is declared to have been an act of the government itself.

Soon after the date of Mr. Fox’s note, an instruction was given to the attorney general of the United States, from this department, by direction of the President, which fully sets forth the opinions of this government on the subject of McLeod’s imprisonment, a copy of which instruction the undersigned has the honor herewith to enclose.

The indictment against McLeod is pending in a state court; but his rights, whatever they may be, are no less safe, it is to be presumed, than if he were holden to answer in one of the courts of this government.

He demands immunity from personal responsibility by virtue of the law of nations, and that law in civilized states is to be respected in all courts. None is either so high or so low as to escape from its authority, in cases to which its rules and principles apply.

This department has been regularly informed by his excellency the Governor of the state of New-Tork, that the chief justice of that state was assigned to preside at the hearing and trial of McLeod’s case, but that, owing to some error or mistake in the process of summoning the jury, the hearing was necessarily deferred. The President regrets this occurrence, as he has a desire for a speedy disposition of the subject. The counsel for McLeod have requested authentic evidence of the avowal by the British government, of the attack on and destruction of the “ Caroline,” as acts done under its^authority, and such evidence will be furnished to them by this department.

It is understood that the indictment has been removed into the supreme court of the state, by the proper proceeding for that purpose, and that it is now competent for McLeod, by the ordinary process of *habeas corpus,*to bring his case for hearing before that tribunal.

The undersigned hardly needs to assure Mr. Fox, that a tribunal so eminently distinguished for ability and learning as the supreme court of the state of New-Tork, may be safely relied upon for the just and impartial administration of the law in this as well as in other cases ; and the undersigned repeats the expression of the desire of this government, that no delay may be suffered to take place in these proceedings which can be avoided. Of this desire, Mr. Fox will see evidence in the instructions above referred to.

*393[The secretary then proceeds to discuss the question, how far the destruction of the Caroline was justifiable on the ground of self-defence, lie admits that a just right of self-defence attaches to nations as well as to individuals, and is equally necessary for the preservation of both. But the extent of this right is to be judged of by the circumstances of each particular case; and when its alleged exercise has led to the commission of hostile acts within the territory of a power at peace, nothing less than a clear and absolute necessity can afford ground of justification, &c., as in the residue of his letter, which it is not deemed necessary here to state.]

*

 A rupee is equal to forty-nine and eight-tenths cents.

*By the Court,*

Cowes', J.

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

These facts, although officially returned by the sheriff, were, by a provision in the habeas corpus act, 2 *R. S.*471, *2d. ed.*§ 50, open to a denial *434by affidavit, or the allegation of any fact to show that the imprisonment or detention was unlawful. In such case, the same section requires this court to proceed in a summary way to hear allegations and proofs in support of the imprisonment or detention, and dispose of the party as the justice of the case may require. Under color of complying with this provision, which is of recent introduction, the prisoner, not denying the jurisdiction of the court over the crime as charged in the indictment, or the regularity of the commitment, has interposed an affidavit stating certain extrinsic facts. One is, that he was absent, and did not at all participate in the alleged offence ; the other, that if present and acting,- it was in the necessary defence or protection of his country against a treasonable insurrection, of which Durfee was acting in aid at the time.

[ *568 ] ^Taking these facts to be mere matters of evidence upon the issue of not guilty, and, of themselves, they are clearly nothing more, I am of opinion that they cannot be made available on habeas corpus even as on argument for letting the prisoner to bail, much less for ordering his unqualified discharge. That this would be so on all the authorities previous to the Revised Statutes, his counsel do not deny. The rule of the case is thus laid down in the British books: *“*A man charged with murder by the verdict of a coroner’s inquest may be admitted to bail; though not after the finding of an indictment by the grand jury.” 1 *Chit. Cr. L.*129, *Am. ed. of*1836. *Petersd. on*Bail, 521, *S. P.*It has never, as we are aware, been departed from in practice, under the English habeas corpus act. *Lord Chief Justice Raymond*said, in *Rex*v. *Dalton,*2 Str. 911, that he Would bail though a coroner’s inquest had found the crime to be murder; and the distinction was between the coroner’s inquest, where the court can look into the depositions, and an indictment where the evidence is secret. *Lord Mohun's case,*1 *Salk.*104, *S. P.*This reason is adopted by *Chitty,*at the page of his *Cr. Law*before cited ; and by *Petersd. on Bail, London ed. 1835,p.*521. It was also recognized by *Sutherland, J.*of this court, in 1825. *Tayloe’s case,*5 *Cowen’s Rep.*56. He says, “ the indictment must be taken as conclusive upon the degree of the crime.”

The depositions heretofore taken in the cause being thus cut off, there are no means of inquiry left us on this motion, by which we can say whether a murder was in fact committed, or whether the charge would probably be mitigated on the trial to a very doubtful case of manslaughter, or to a homicide in defence, or whether all participation might be disproved by showing a clear alibi. Nothing is better settled, on English authority, than that on habeas corpus, the examination as to guilt or innocence' cannot, under any circumstances, extend beyond the depositions or proofs upon which the prisoner was committed. This would be so, even on habeas corpus before an indictment found, however loosely the charge might be expressed in the war*435rant of commitment. *Ohitty,*at the page before cited, says, “ It is in *fact to the depositions alone that the court will look for their [ *569 ] direction: where a felony is positively charged, they will refuse to bail, though an alibi be supported by the strongest evidence.” He cites *Rex*v. *Greenwood,*2 *Str.*1138, a case of robbery, and eight credible witnesses making affidavit that the prisoner was at another place at the time when the robbery was sworn to have been committed; yet, adds the report, the court refused to admit him to bail, but ordered him to remain till the assizes. Here the crime is clearly proved by the depositions which have been read on the side of the people, while, instead of eight witnesses to an alibi, we have the solitary affidavit of the prisoner. In *Rex*v. *Acton,*2 *Str.*851, the prisoner had been tried for murder and acquitted : afterwards a single justice of the peace issued a warrant charging him with murder, on circumstances similar to those upon which he had been acquitted, and 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. Ohitty, at the page just cited, lays down the rule that the court will not look into extrinsic evidence at all. He states a case wherein the same question came up in respect to on inferior crime: receiving stolen goods with a guilty knowledge. The prisoner’s affidavit denied his knowledge: yet the court refused to bail, saying the fact of knowledge was triable by a jury only. They added, it would be of dangerous consequence to allow such proceedings, as it might induce prisoners generally to lay their case before the court. *Petersd. on Bail,*522, refers to *Chitty,*who cites *Cas. K. B.*96 . This book, *eo nomine,*does not appear now to be extant; and 12 *Mod.*the only reference I am aware of, which, among the English quotations, is synonymous with *Ohitty*s,*does not appear to contain the caso stated by him.* But it accords with many others in circumstance ; and tbo reason given is almost too plain to demand any direct authority. To hear defensive matter through ex parte affidavits as a ground for bailing the prisoner, would be to trench *on the office of the jury; for in the esse of high crimes, bail [ *570 ] would be equivalent to an acquittal. Accordingly, the rule as laid down in *Horner's case,*1 *Leach,*270, *4th ed. London,*1815, is in effect the same with that stated by *Ghitty,*The prisoner had been committed under a charge of defrauding and robbing a man of his money by false pretences. It was insisted that the facts stated in the depositions for the King made out a misdemeanor; and that the prisoner was therefore entitled to bail. But the transaction by which the money was obtained admitted of one construction which might make it a felonious taking. The court said, *“*In cases of this kind the course has always been to leave it to the jury to determine *quo animo*the money was obtained. In such a case the court never *436form any judgment whether the facts amount to a felony or not; but merely whether enough is charged to justify the detainer of the prisoner, and put him upon his trial.”

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

It becomes necessary next to inquire whether the new.statute has worked any enlargement of our powers beyond what we have seen they were up to the time when it passed. The 2 *R. S.*469, *2d ed.*§ 40, 41, require us to examine the facts contained in the return, and into the cause of the confinement of the prisoner; and if no legal cause be shown for it, or for its continuation, we are to discharge him. That here is legal cause, vi z: an indictment for murder, and an order of commitment, we have seen is not denied. By the forty-fifth section, page 470, if it appear that the [ *571 ] party has *been legally committed for any criminal offence, we are required to let him to bail, if the case be bailable. But so far we have no -direction as to what case shall be considered bailable. We are left under the restraints which I have noticed as existing before the statute. Hot one of them is removed by it.

Then comes section fifty, page 471, which is relied on by the prisoner’s counsel. I briefly noticed this in proposing the question to be considered. But the prisoner is entitled to the benefit of it entire. The words are, that *“*the party brought before -such court or officer, on the return of any writ of habeas corpus, may deny any of the material facts set forth in the return, or *allege any fact to show either that his imprisonment or detention is*unlawful, *or that he is entitled to his discharge,*which allegations or denials shall be on oath; and thereupon such court or oiticer shall proceed in a summary way, to hear such allegations and proofs as may be produced in support of such imprisonment or detention, or against the same, and to dispose of such party as the justice of the case may require.” Under this statute, the prisoner’s counsel claim the right of going behind the indictment, and proving that he is not guilty by affidavit, as he may by oral testimony before the jury. We have already shown the absurdity of such a proposition in practice, and its consequent repudiation by the English criminal courts. And we are not disposed to admit its adoption by our legislature, without clear words or necessary construction.

*437We think its object entirely plain without a resort to the rules of construction. Its words are satisfied by being limited to the lawfulness of the authority under which the prisoner is detained, without being extended to the force of the evidence upon which the authority was exerted, or which it may be in the prisoner’s power to adduce at the trial. This, if necessary, is rendered still more plain by considering the evil which the statute was intended to remedy. At common law, it was doubtful whether the prisoner could question the truth of the return or overcome it by showing extrinsic matter, upon the point of the authority to imprison. The statute was passed to obviate the oppression that might sometimes ‘'arise from [ *572 ] the necessity of holding a return to be final and conclusive, which is false in fact, or if true, depending for its validity on the act of a magistrate or court which can be shown by proofs aliunde to have been destitute of jurisdiction. *Watson’s case,*9 *Adolph, and Ellis,*731. 3 *R. S. 784, 5, 2d ed. App. note.*An innocent man may be, and sometimes unfortunately is imprisoned. Yet his imprisonment is no less lawful than if he were guilty. He must await his trial before a jury. There are various cases in which the enactment, alowing proof extrinsic to the return, may have effect without supposing it applicable here. It must, I apprehend, for the most part, apply to the cases where the original commitment was lawful; but in consequence of the happening of some subsequent event, the party has become entitled to his discharge, as if he be committed till he pay a fine, ■ which he has paid accordingly, and the return states the commitment only; so after conviction he may allege a pardon, or that the judgment under which he was imprisoned has been reversed. Nor is it necessary to inquire how far we might be entitled to go, were the prisoner in custody, on the mere examination and warrant of a committing magistrate.

But it is said we have power to direct the entry of a *nolle prosequi,*and it is our duty to look into the merits of the case with a view to decide whether it be a proper one for the exercise of that power. This proposition is also put upon a new section of the Revised Statutes, which most clearly gives no color for the suggestion. At common law the attorney general alone possessed this power; and might, under such precautions as he felt it his duty to adopt, discontinue a criminal prosecution in that form at any time before verdict. The power and practice under it are laid down in 1 *Chit. Cr. Law,*478, edition before cited. It probably exists unimpaired in the attorney general to this day ; and it has been by several statutes delegated to district attorneys, who now represent the attorney general in nearly every thing pertaining to indictments and other criminal proceedings local to their respective counties. The legislature finding the power in so many hands, and fearing its abuse, by the *2 R. S.*609, *2d ed.*§ 54, provided that it should not thereafter be lawful for *any district attorney to enter a *[ *573*] *438*nolle prosequi*upon any indictment, or in any other way discontinue or abandon the same without leave of the court having jurisdiction to try the of" fence charged. This provision, the prisoner’s counsel contended, so enlarged our powers that we might arbitrarily interfere on the prisoner’s affidavit and other proofs verifying his innocence, or even on grounds of national policy, as where the prosecution would be likely to affect our foreign relations unfavorably ;vand that, too, in despite of the attorney general and district attorney. Conceded as it was, that before the Revised Statutes we had no right to give such direction, the argument seeks to draw from the statute giving us a *veto against*the *nolle prosequi*a positive power to compels entry. Even if we had such power, the argument would be quite extraordinary. It demands that we should finally dispose of an indictment for mupder on the sort of evidence by which we are guided upon a motion to set aside default or change a venue. In any view, this question belongs primarily to the executive department of the government.

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

Want of jurisdiction has not been put on the ground that McLeod was a foreigner. An alien, in whatever manner he may have entered [ *574 ] our territory, is, if he commit a crime *while here, amenable to our criminal law. Lord Mansfield, in *Cambell*v. *Hall, Cowp.*208 ; *Vattel, B.*2, *ch.*8, § 101—2; *Story’s Confl. of L.*518, *2d ed.*Nay, says Locke, though he were an Indian, and never heard of our laws. On *Civ. Gov. B.*2, *ch. 2,*§ 9.

But it is said,' his case belongs exclusively to the forum of nations, by which counsel mean the diplomatic power of the United States and England, or in the event of their disagreement, the battle-field. I have already ad-« mitted that counsel may, under the 50th section of the habeas corpus act, allege and prove a want of jurisdiction. To show this the affidavit of McLeod is produced, from which the inference is sought to be raised, that the Niagara frontier was in a state of war against the contiguous province of *439Upper Canada ; that the homicide was committed by McLeod, if at all, as one of a military invading expedition, set on foot by the Canadian authorr ties to destroy the boat- Caroline ; that he was a British subject. That the expedition crossed our boundary, sought the Caroline at her moorings in Schlosser, and there set fire to and burned her, and killed Durfee, one of our citizens, as it was lawful to do in time of war.

We need not stay to examine the. conclusion, viz: a want of jurisdiction, if the premises be untrue. To warrant the destruction of property or the taking of life on the ground of public war, it must be what is called *laivful war,*by the law of nations, a thing which can never exist without the actual concurrence of the war making power. This on the part of the United states, is congress ; on the part of England, the Queen. A state of peace and the continuance of treaties must be presumed by all courts of justice till the contrary be shown ; and this is *presumptio juris et de jure,*until the national power of the country in which such courts sit, officially declares the contrary. A learned English writer on the law of nations, makes this remark ; (1 *Ward’s L. of Nations,*294.) “ Although I am aware that there is a great authority for the contrary opinion, yet it is upon the whole settled, that no *private*hostilities, however general, or however just, will constitute what is called a legitimate and public state of war. So far indeed has my Lord Coke carried *this point, that he holds, [ *575 ] if *all*the subjects of a king of England were to make war on another country, in league with it, but without the assent of the king, there would still be no breach of the league between the two countries.” 1 *Bl. Com.*267, *S. P.*Again, in *Blackburn*v. *Thompson,*15 *East,*81, 90, Lord Ellenborough, Ch. J. delivering the opinion of the court of King’s Bench, said, “ I agree with the master of the rolls in the case of the Pelican, 1 *Edw. Adam. Rep. Append. D.,*that it belongs to the government, of the country to determine in what relation of peace or war any other country stands towards it; and that it would be unsafe for courts of justice to take upon them without that authority, to decide upon those relations. But when the crown has decided upon the relation of peace or war in which another country stands to this, *there is an end of the question.”*3 *Camp.*66, 7, *S. C. and S. P.*

So far were the two governments of England and the United States from being in a state of war when the Caroline was destroyed, that both were struggling to avoid such a turn of the excitement then prevailing on the frontier, as might furnish the least occasion for war. Both had long maintained the relations of national amity; and have done so ever since under an actual treaty. So far from England fitting out a warlike expedition against the United States, or any public body, she utterly disavows any such object; while on our side we have inflicted legal punishment on *440the leaders of the expedition of which Durfee made a part, on the ground that England was then at peace with us. Whatever hostile acts she did, were aimed exclusively at private offenders; and if there was a war in any sense, the parties were England on one side, and her rebel subjects aided by certain citizens of our own, acting in their private capacities and contrary to the wishes of this government, on the other.

In speaking of public war, I mean to include, all national wars, whether general or partial, whether publicly declared or carried on by commissions, such as letters of marque, military orders or any other authority, emanating from the executive power of one country, and directed against the power of another; whether the directions relate to reprisals, the seiges [ *576 ] *of towns, the capture or destruction of private or public ships, or the persons or property of private men belonging to the adverse nation. I mean to exclude all hostility of any kind, hot having for its avowed object, the exercise of some influence or control over .the adverse nation as such. I deny that public war in this sense can be made out by affidavit, or by any other medium of proof, than the denunciation of war by one or both of the two nations who are parties to it.

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

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

Much was said in argument on the assumption that the state of hostilities on the frontier amounted to *unsolemn war.*In supposing this to be so,, counsel come back to the very error which they repudiated in more general terms. A war is none the less *public*or *national*because it is *unsolemn.*All national wars are of *two kinds,*and two only; war by *public declaration,*or war denounced without such *declaration.*The first is called solemn or perfect war, because it is general, extending to all the inhabitants of both nations. In its legal consequences it sanctions indiscriminate hostility on. both sides, whether by way of invasion or defence. The second is called - unsolemn or imperfect war, simply because it is not made upon general, but special declaration. The ordinary instance is a commission of reprisal, limiting the action of the nation plaintiff, to particular objects and purposes *441against the nation defendant. It supposes a partial grievance, '■"which can be redressed by a corresponding remedy or action; [ *577 ] and does not authorize hostility beyond the scope of the special authority conferred. Such are several of the instances I have just now mentioned. But they are no less in stances of public war. The attack on Copenhagen was mentioned on the argument as an instance of unsolemn war. So indeed it was. The British admiral had a deputation from the war-making power of England to act against the war-making power of . Denmark ; to demand the surrender of the Danish fleet, and, on refusal, to destroy public or private property, or take life—not as a punishment of private offenders, but to coerce the nation. Why was the attack made ? Because Denmark would not surrender her navy voluntarily; and there was danger that France would take it either by force or under collusion on the side of Denmark. Those who were in arms on the side of Denmark, acted not in their own right, but as agents of the nation to which they wereflsubject. Before the remotest analogy can be seen between that case and the one at bar, the United States must be brought in and made defendant in their corporate capacity. It will be seen, I trust, by this time, that the instance derogates not in the least from the distinction that runs through all the writers on the international law, viz. that to constitute either solemn or unsolemn war, the authority to act must emanate from the war-making power on one side, and be intended to influence that power on the other. Action under such a power is necessarily a collision between two nations; and answers to Grotius’ definition, viz: “ That is a public war which is made on each side by the authority of the *civil power.” B.*1, *ch.*3, § 1. At the fourth section, he divides this sort of war into solemn and unsolemn, of which latter he gives an instance in *B.*3, *ch. 2,*§ *2,*N. 3. Vid. also *2 Ruth. ch.*9, § 9,10. The distinction has been followed to this day, though the legal character of *unsolemn*war has since been changed. “ Both,” says Rutherforth, “ are now lawful. The only real effect of a declaration of war is, that it makes the war a general one; whilst the imperfect sorts of war, such as *reprisals,*or acts of *hostility,*are partial or are confined to *particular*persons, or things, or places. In a *solemn*war, all the members of one nation act against the [ *578 J other under a general commission; whereas in public wars which are not solemn, those members of one nation who act against the other, act under particular commissions. *Ruth. B. 2, ch.*9, § 18. *Vattel, B.*3, *ch.*15. And see this distinction well treated, 1 *Hal. P.*C. 162, 163.

Both sorts of war are lawful, because carried on under the authority of a power having, by the law of nations, a right to institute them. In any other war, no belligerent rights can be acquired. All captures, all destruction of property must be illegal, and the taking of life a crime. Short of *442this, war cannot be carried into an enemy’s country, for the simple reason that there is no war to carry there, and no enemy against whom it can be exerted. The nation denouncing war must be explicit. *“*This makes it,” says "Vattel, *“formal,*and so *lawful.*But nothing of this kind,” says he, i£is the case in an informal, illegitimate war, which is more properly called depredation. A nation attacked by enemies, without the sanction of a public war, is not under any obligation to observe towards them the rules of formal warfare. She may treat them as robbers.” *Vattel, B.*3, *ch.*4, § 68.‘ “ Such unauthorized volunteers in violence,” says Blackstone, *“*are not ranked among open enemies, but are treated like *pirates*and *robbers.”*3 *Bl. Com.*267.

It was accordingly conceded, in argument, that the Canadian provincial authorities had no inherent power to institute a public war. *Vid.*2 *Ruth, ch.*9 § 9, We were, however, referred to *Burlamaqui, Pt.*4, *ch.*3, § 18, 19, to show that those authorities might do so on the presumption that their sovereign would approve the step ; and that such approbation would reflect back, and render the war lawful from the beginning. On the assumption that this indirect mode of instituting war had actually been resorted to, counsel again bring themselves back to the fundamental error which led to this application. No one would deny that if the affair in question can be tortured into war between this nation and England, the United States might take possession of McLeod as a prisoner of war. In such a [ *57 9 ] case, there would have been *no need of this motion. But admitting the rule of Burlamaqui, and that counsel might, by the aid of England, get up an *ex post facto*war for the benefit of McLeod, this cannot be done by an *equivoque ;*and especially not in contradiction to the language of England herself. Neither the provincial authorities? nor the sovereign power of either country have, to this day, characterized the transaction as a public war, *actual*or *constructive.*They never thought of its being one or the other. Both have spoken of it as a transaction *public on one side,*to be sure, but both claimed to hold fast the relations of peace. Counsel seem to have taken it for granted that a nation can do no public forcible wrong without being at war, even though it deny all action as a belligerent. At this rate every illegal order to search a ship, or enter on a disputed territory, or for the recaption of national property even from an individual, if either be done *vi et armis,*and work wrong to another nation or any of its subjects, would be public war, necessarily so, though the actor should deny all purpose of war. Were such a rule once admitted, England and the United States can scarcely be said to have been at peace since the revolution which made them two nations. My endeavor has been to show that on the question of war or peace there is a *quo animo*of nations, by which we are bound.

*443To prevent all misunderstanding in the progress of the argument, it is proper to observe farther, that an act of jurisdiction exerted by inferior magistrates, civil or military, for the arrest or punishment of individuals, is mot *public*war, of either kind. So long as the act is kept within legal compass, though its exertion be violent, where for instance, the object is to suppress a riot, quell an insurrection, or repel the hostile incursions of individuals, it is, though sustained by a soldiery in arms, only one mode of enforcing the criminal law. It is like calling out the militia as a *posse comitatus*to aid a sheriff who is resisted in the execution of process. Force becomes lawful where the laws are set at defiance. We see this in frequent resort to soldiers of the regular army by the English, in cases of dangerous riots. *Vid. Ruth. B. 2,, ch.*9. § 9. Such a state of things, therefore, confers no right *to act offensively against individuals who [ *580 ] reside or sojourn in the neighboring territory. Should they be pursued and arrested, or killed, the act would be a naked usurpation of authority, like the sheriff of one county going into another to execute process. *u*If,” says *Rutherforth, B. 2, ch.*9, § 9,“ the magistrate, in any instance, use even the force with which he is entrusted, in any other manner, or for any other purpose than is warranted by his appointment, this, *as it is his own act,*and not the act of the public, cannot be called public war.”

Sensible that all pretence of belligerent right was wanting, it was, therefore, in the first view, as a *lawful act of magistracy,*that the case was sought to be put by Mr. Fox, both in his letter to Mr Forsyth and Mr. Webster. I take the words of his last letter, written after the question had been deliberately considered by bis government: “ The grounds upon which the British government make this demand” (the surrender of McLeod,) 66 are these: that the transaction on account of which Mr. McLeod has been arrested, and is to be put upon his trial, was a transaction of a *public character,*planned and executed by persons duly empowered by her majesty’s colonial authority, to take any steps and do any acts which might be necessary for the *defence*of her majesty’s territories, and for the *protection*of her majesty’s subjects ; and that *consequently,*those subjects of her majesty who engaged in that transaction were performing an act of *public duty,*for which they cannot be made *personally and individually*answerable to the laws and tribunals of any foreign country.” In the same letter he re-states the opinion of his government, that “ it was a *justifiable*employment of force for the purpose of *defending*the British territory from the unprovoked attack of a band of British rebels and American pirates.”

If this view of the transaction can be sustained, it was lawful *ab initio.*It required no royal recognition to render it national. It came within the power which the Canadian authorities held from England to act in her place and stead. So long as they confined themselves within the territorial line *444of Canada, they were doing no more than the nature of their con- [ *581 ] nection with England *required;*sustaining that absolute *and exclusive- jurisdiction to which she is entitled in common with every other nation. Whether* they had power without pretence of being engaged in a war with the United States, or could derive power from England, to fit out an expedition, cross the line and seize or destroy the property and persons of our citizens in this country, and whether anjr one acting under such an assumption of power, can be protected, is quite a different question.

One decisive test would be furnished- by admitting that Durfee had committed a crime against England, for which he was liable to arrest and trial in Canada. None would pretend that any warrant from the English nation could be used to protect one of her officers from an action of false imprisonment, if he had merely arrested the offender on this side the line. No one would pretend that a military order and the addition of the Queen’s soldiers and sailors would, in such case, strengthen a plea of justification ; nor would the subsequent approval of the nation. This would have no greater effect than the original authority; accordingly it was not pretended on the argument that England had any right whatever to send and arrest Durfee as a fugitive from justice. The pretence that she had any such right would have been too absurd to bear the name of argument. Nor is it pretended that her magistrates, civil or military, had any power within our territory to seize and bind him over to keep the peace towards England or her subjects. “ We cannot,” says *Vattel, B.*2, *ch.*7, § 93, *“*enter the territory of a nation in pursuit of a criminal, and take him from thence. This is what is called a violation of territory; and there is nothing more generally acknowledged as an injury that ought to be repelled by every state that would not suffer itself to be oppressed.” The rule is too familiar, even as between the states of this confederacy, to require that it should be insisted on at large.

But the civil war which England was prosecuting against various individuals, was insisted on as a ground of protection ; and I am free to admit that the strongest possible color for the extraordinary right claimed, is to be derived from taking the United States to stand in the attitude of a [ *582 ] 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.*3, § 1. Rutherforth 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. The several invasions of *445England by Perkin Warbeck, and Lord Heries, mentioned in 1 *Hal. P. C.*164, the former of which is also noticed in Calvin’s case, 7 *Co. Rep.*11 —12, are instances of such a war ; the books saying that in England, such offenders must be tried by martial law, for a reason which I shall hereafter consider. Let Durfee, then, be regarded as England’s enemy, who has, with Wells, the boat owner and his boat, ‘taken shelter in the neutral territory of the United States. Had England any right to follow him there ? Hone say the books, not even in the heat of contest, had he been an enemy pursued and flying for shelter across the line. 1 *Kent's Com.*119—20. Independently of fresh pursuit, no writer on the law of nations ever ventured the assertion that one of two belligerents can lawfully do any hostile act against another upon neutral ground. If it be not a plain deduction from common sense, yet, on principles in which publicists universally 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. Ho exception can be made consistently with national safety. Make it in favor of the subordinate civil authorities of a neighboring state, and your territoiy 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 [ *583 ] 1 of every inhabitant on the frontier whom they may suspect of a disposition to aid their enemies. Hever since the treaty of 1783, had England, in time of peace with us, any more right to attack an enemy at Sehlosser, than would the French have at London in time of peace with England.

“ The full domain,” says Yattel, “ 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 sovreignty united to the domain, establishes the jurisdiction of the nation in ■ her territories. It is her province to exercise justice in all the 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.” *B.*3. *ch.*7, § 132. “ 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 Catharina,*5 *Rob. Adm. Rep.*20-1. And he refused to recognize a right of capturing an enemy’s ship within a *446marine league of our coast. *The Anna La Porte, Id.*332. “ We only exercise the rights of war in our own territory,” says Bynkershoek, “ 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 1 that every voluntary entrance into neutral territory with hostile purposes, is I absolutely unlawful.” 1 *Kent’s Com.*119, 4th *ed.*“ The jurisdiction of courts,” says Marshall, C. 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 imposed by itself;' any restriction derived from an external source would imply a diminution of its sovereignty to the [ *584 ] extent of the Restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction.” *The schr. Exchange*v. *McFadden et. al.,*7 *Cranch,*116, 136. 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—

> ‘ If you can charge these guests with an offence, Do it by law; forbear all violence.’

But in courts of justice the merit of the person is considered, and this promiscuous purpose of hurting each other ceases. Livy relates that seven Carthaginian gallies rode in a port belonging to Syphax, who, at that time, was at peace both with the Carthaginians and Romans ? and that Scipio came that way with two gallies. These might have been seized by the Carthaginians before they had entered the port, but being forced by a strong wind into the harbor, before the Carthaginians could weigh" anchor, they durst not assault them in the King’s haven.” Several more modern‘instances of a like character are stated by *Molloy de Jur. Mar. B.*1, *ch.*1, § 16. It is said to be a rule in the modern law of nations, that not only must the parties refrain from hostilities while in a neutral port; but should one set sail, the other must not till 24 hours after. *Martens’ L. of Nations, B. 8, ch.*6, § 6, *note.*And a doctrine about as strong was laid down by Sir.Wm. Scott, in the case of the *Twee Gebroeders,*3 *Rob. Adm. Rep.*162.

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 *447put it again that the war, if any, was by England against him and his associates : not against the United States. But *what [ *585 J right, I again ask, had she to pursue him into a territory at peace ? 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 bonnd to let an enemy go free whom it accidentally met on neutral ground. Within the territory of a nation at peace, all belligerent power, all belligerent right, is paralyzed. They have passed from the dominion of arms to that of law. “ No violence can be offered,” says Grrotius: “ but you must proceed in a judicial way.” The only offence against our law which Durfee had committed, was in setting on foot a hostile expedition against England with whom we are 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 hardy, and therefore substitute the firebrand and musket. To admit such a right of interference on any ground or in any way, says Marshall, would be a proportional diminution of our own sovereignty, of which judicial power makes a part. “ The law of nations,” says Rutherforth, *“*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 bh 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 nation at peace with the sovereign of the arresting ship. *Molloy de Jur. Mar. B.*1, *ch.*1, § 16.

*But admitting that England might protect a man against our [ *586 ] jurisdiction, by saying he did a public act under her authority, does it not behoove her at least to show that she has acted within the limits of her own jurisdiction, especially where she has prescribed them to herself?- Shall her declaration enure to deprive us of power where she is exceeding her own ? And this brings me 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 jurispru*448dence, than the juncture of circumstances which can alone tolerate the action of that law. A force which the defender 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, are enough of themselves, when compared with McLeod’s affidavit, to destroy all color for saying the case is within that condition or those limits. 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 [ *587 ] *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 of *son 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.”

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 *449retreat 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 the 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 everywhere, of such paramount force as no municipal or international law could ever overcome ; and intelligible to every living soul. It is easily applied both as between individuals in civil society and nations at peace. Passing' the boundary 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 for- [ *588 ] eign sovereign. Accordingly, Puffendorf, 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.” *Puff. 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 to show 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 war.

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 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 authorities, being convinced of her delin*450z quency, sentenced her to be burned : an act which all concerned [ *589 } 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 adopting and approving such a crime. It is due to her, in the first place to deny that it has been so adopted 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; but 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 law, as if they had been born and always resided in this country.

I will not, therefore, dispute the construction which counsel 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 steam boats, she £ *590 3 had authorized any colonel of her army or *militia, on suspecting - that a boat lying in our waters intended illegally to assault the Can- • adian 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 exeóuted ; 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 *451approving the original authority, could add nothing to the protection proffered by the first. It would be but the junction of two nullities. So says Mr. Locke, *(on Gov. B. 2, ch.*19, § 239) of a Icing, 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 Franco, 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 against a stranger and sojourner in our land, I need not inquire whether the same measure of protection be due to Durfee, our fellow citizen.

“ 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 foreign ports and territories, for the purpose of seizing vessels which had offended against our laws.” *The Apollon,*9 *Wheat. Rep.*362, 371,2. He has examined the question at large in his *book on the *Conflict of Laws, ch.*2, § 17 *to*[ *591 ] *22, p.*19,2d ed. The result is, that no nation is bound to respect the laws or executive acts of any foreign government intended to control or protect its citizens while temporarily or permanently out of thei.i 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 his 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 even 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 imaginations 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 *452which was at peace with England when she sent in her soldiery. If they mean that the appoval 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 the 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 [ *592 ] 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 xyhich 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.”

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 execute 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.*3, *ch.*10, § 179. It is a mistake to suppose that a soldier is bound to do any act contrary to the law of nature, at the bidding of his prince. Vattel, *B.*1, *ch.*4, § 53-4; *id. B.*3, *ch.*2, § 15. *Grot. B.*2, *ch,*26, § 3, *N.*2 *and*3. *Puff. B.*8, *ch.*1, § 6—7. But if he were, he must endure the evil of living under a sovereign who will issue such commands. It docs not follow that neighboring countries must submit to be infested with incendiaries and assassins, because men are obnoxious to to punishment in their own country, for being desirous to go through life *453with bloodless hands and a quiet conscience. The Parisians thought themselves bound to obey Charles IX. *when he ordered [ *593 ] them to Massacre the Huguenots. Suppose they had obeyed a similar order to massacre the Huguenots 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 own 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, abitrary 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 Orte, 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 [ *594 ] has its jurisdictional limits. Even that, in its pursuit after a flying enemy is, we have seen, arrested by the line of a country at peace. Beside 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 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 sodilery, would stand justified to his immediate sovereign. *Vattel, B.*3, *ch.*10, § 180; though even he could not legally punish a refusal. In *454respect to the enemy, orders would be an obvious excess of jurisdiction. The emissaries sent by Sir Henry Clinton, in 1781, to 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 propositions of the genez-al 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, § 181. 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 war such perfidy is expected. In time of peace, every citizen, while within [his own territory, has a double ground for supposing 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. Aman who orders another to commit a trespass, or appro ves of a trespass already committed 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 bo 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 [ *595 ] *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 sovoreign. Vide a like instance, *Id. B.*1, *ch.*6, § 75.

What is the utmost legal effect of a foreign sovereign, approving of the crime which his subject has committed in a neighboring 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 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 punish, 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 Rutherforth, 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 extraterritorial character, which the law of nations has, therefore, attached to his *455person. Hence, say the hooks, he can be proceeded against no otherwise than by a complaint to his own nation, which will make itself a party in his crime, if it refuse either to punish him by its authority, or to deliver him up, to be punished by the offended nation. *Ruth. B.*2, *ch.*9, § 20. Independently of this exception, therefore, Rutherforth insists, with entire accuracy, that1 *c*as far as we concur in what another man does, so far the act is our own; and the effects of it are chargeable upon 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 [ *596 ] that the law inflicts.” *B.*3, *ch.*1, § 5. Yattel says of such a case, *B.*2, *ch.*6, § 75, if the offended state have the offender in her power, she may, without scruple, punish him. Again, if he have escaped and returned to his own country, she 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 subject obnoxious to punishment. *Vattel, B.*3, *ch.*2, § 15. *Id. B.*1, *ch.*6, § 75. *Vide 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 perpetrator can be reached ?

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

The Pope then, having at least some pretensions to jurisdiction, *even in England,*had openly approved it under his seal. The Spanish ambassador at Paris was a party relied upon to follow up the event with an invasion. Would James, the son of the accused, have hesitated to join in the avowal, could he have thus been instrumental in saving the life of his mother ? *456Yet the principle was not thought of, in the whole course of that extra. ordinary affair. Mary ' openly avowed her general treason as a [ *597 ] measure of *defence*and *protection*to herself, though she denied all participation in the plot to assassinate Elizabeth. Yet the only ground taken was, the technical one (not the less valid because techni. cal) 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 light of international law, *2 Ward's Law of Nations,*564. Ho 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 that 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 *tabula rasa.*Ho. Before England can lawfully send a single soldier for hostile purposes, she must assume the responsibility of 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 public authority on this side the line, when it sought to cover even territory to which the Uunited 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 [ *598 ] St.’ James to a remedy by remonstrance, or war ? Had the posse been arrested by her sheriff, and in mere defence had killed him, this nation had, after some two or three years, avowed the act, would she have thought of conceding that in the mean time, all power of her courts over the homicides that 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 secreta*457ry 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 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, but executive function; and the objection would come with the same force whether it were urged against proceeding in a court of this state, or 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, could 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 exclusive 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 Hew-York left to take its place as an independent nation.

Hot only are our constitutions entirely explicit in leaving the trial of crimes exclusively in the hands of the judiciary : *but [ *599 ] neither in the nature of things, nor in sound policy, can it be confided to the executive power. That can never act upon the individual offender; but only by requisition on the foreign government; and in the instance before us, it has no power even to enquire 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 nego. tiation or war only. The individual accused must go free, no matter to what extent his case may have been misapprehended by either power. Ho 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.

*458Under circumstances the executive power might, in the exercise of its discretion, be bound to disregard a venial offence 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 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 national territory. *Vattel, B.*4, *ch.*4, § 43.

I forbear now to notice particularly some of the legal passages and cases which were referred to by the prisoner’s counsel in the course of [ *600 ] the 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 powers 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 stipulation 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 they said the clause was put in merely by way of protestando. If it was inserted with the intention of having it taken as true upon this mo- . tion, 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 defénce 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 pow*459er even to consider them as a ground for discharging the prisoner. I took occasion to show in the outset that in no view *can [ *601 ] 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 said 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 no jurisdiction. It was so held in Perkin Warbeck’s case. He was punished with death by sentence of the constable and marshall, who it is said in Calvin’s case, 7 *Co. Rep.*11, 12, had exclusive jurisdiction. *Vide Dy.*142, *a.*1 *Curw. Hawk. ch.*2, § 6, *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 marshall seems to have had an ancient right not very well defined by the common law, of trying all military offences, as appears by the *Stat. R.*2, *vid.*2 *Pick. St. at Large,p.*310, which was passed to settle conflicting claims of jurisdiction between that and the ordinary courts / *vid. also*3 *Inst.*48. The whole is obviously inapplicable to this country; and I suspect 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 an indictment for a common law offence against one arrested and brought before it, a mere suggestion by affidavit that the offence imputed pertains to deeds of arms, either in a public or mixed war shall take away power to try whether the prisoner be guilty or not of the charge contained in the indictment.

All homicide is presumed to be malicious, and, therefore, murder, until the contrary appear upon evidence. *“*The matter of fact,” says Foster, “ viz. whether the facts alleged, by way of *justification, excuse*or *alleviation*are true, is the proper and *only*province of the *jury,” Post.*255. Lawful defence by an individual, (still recognized it seems by the law of nature under the name of private war, *(Grot. B.*1, *ch.*3, § 2,) is one instance. *Poster,*273. That he acted in right of a nation, or under public authority, is no more than matter of justification. It is like the case mentioned in *Poster,*295 ; *the public execution of malefactors; and [ *602 ] the jury must judge whether the authority may not have been exceeded. But more, when public or mixed war is alleged in mitigation, either allegation may be fictitious ; and it should be put to the jury, on the proper evidence, whether it existed or not. The reason is plain, says Lord Hale ; for the war may be begun by the foreign prince only, where it is public ; and he supposes it still plainer where the war is between the king and an invading alien being the subject of a nation with whom the king is at peace. 1 *Hal. P. C.*193,4. The same writer puts the case of plunder or robbery *460by an enemy, *tempus belli,*which would not in general be burglary. Yet he admits it might be otherwise if the act were not done in the regular prosecution of the war, *Id.*565.

Suppose a prisoner of war to escape, and that on his way home, and before he crossed the line, he should set fire to a farm house in the night and kill the inmates; is there a doubt that he might properly be convicted either of arson or murder ? When a grand jury have charged that a man has committed murder within this state, 1 can imagine no case, whether the charge relate to the time of open public war or peace, in which he can claim exemption from trial. If he show that he was in truth acting as a soldier in time of public war, the jury will acquit him. The judge wili direct them to obey the law of nations, which is undoubtedly a part of the common law. So if the accused were acting in defence against an individual invader of his country. But above all things is it important in the latter case, for the jury to inquire whether his allegation of defence be not false or colorable. They cannot allow as an act of defence, the wilful pursuing even such an enemy, though dictated by sovereign authority into a country at peace with the sovereign of the accused, seeking out that enemy and taking his life. Such a deed can be nothing but an act of vengeance. It can be nothing but a violation of the municipal law, the faith of treaties, and the law of nations. The government of the accused may approve, diplomacy may gloze, but a jury can only inquire whether he was a party to the deed, or to [ *603 ] any act of illegal violence which he knew *would probably endanger human life. If satisfied that he was not, as I sincerely hope they maybe, upon the evidence in the case before us, they will then have the pleasant duty to perform of pronouncing him not guilty. But whatever may be their conclusion, we feel the utmost. confidence that the prisoner, though a foreigner, will have no just cause to complain that he has suffered wrong at the hands of an American jury.

*At*cur hands the prisoner has a right to require an answer upon the facts presented by his papers, whether in law he can properly be holden to a trial. We have had no choice but to examine and pronounce upon the legal character of those facts, in order to satisfy ourselves of the bearing they might have on the novel and important question submitted. That examination has led to the conclusion that we have no power to discharge the prisoner.

He must, therefore, be remanded, to take his trial in the ordinary forms of law-*

*

 See the case in Cunningham’s Rep. 96, 2d ed. printed in 1770.

*

 The *venue*was changed in this case to the county of *Oneida,*at the oyer and terminer in which county the prisoner was tried in October, 1841. He proved an *alibi,*and was *acquitted.*