Wheeling times and advertiser. [volume] (Wheeling, Va. [W. Va.]) 1839-1849, 1841-07-20


Of the State New York.n The case OF McLeod. un-
der the writ OF habeas corpus which claimed his
lease from custody without trial upon the charges
brought against HIM b. the Grand Jury Of Niagara
county. The application is denied. and Mcleod |
Is remanded TO prison 10 await his trial in due
course of law.
The opinion delivered by the Court in the ease
occupies large space. aud goes into a thorough
animation OF The various points involved in n.
The points as laid down by the Court are thus
summary stated IN the .ening POST
j. That the points raised by the prisoner. first.
that he did not participate in the ALLEGED offence and
second that. II present. he acting in defence Of
his country from n reasonable instruction, cannot
be made available in Habeas Corpus even tor let
ting him TO BAIL much less for ordering his unquali-
fed discharge.
2. That on Habens Corpus. the examination M TO
quit ar Innocence cannot. under any circumstanc es
ext end beyond the depoSiIions or proof by which
ihe.prisoner, Is committed.
s. That these views arc sufficient answer TO the
present application, but counsel had raised tho
question OF jurisdiction, tho were willing to 60
into 10.
4, That the plea thlt this is a national question
10 be settled by the diplomatic powers Of the United
States nnd England does Tot divcsi The court OF ia.
risdiciion because To he destruction OF pro-
Pery or the taking of life the ground of public
war; there must be what is called lawful war; by
the law Of naIOns which can never exist without a
concurrence OF the war making power
D, That Il the alIiir in question can be tortured
into war between this naiiun and England, the L.
niled State. might take possession Of Mcleod as
/ prisoner OF wur.
6. That The order, under which Mcleod and his
asst ciaes acted was q lawful act of maiesty as
contended for by MIR Fox. since the Transaction was
then lawful ab into and required royal recogni.
ton. which is not pretended on either side
! ! q, That regarding Durlee. the enemy OF Eng
land who had shelter The
CT the United States she had no right ON any pre-.
ience, 10 pursue HIM beyond her own limits with
out violating the rights of the neutral nation.
8, That the transactions in which Mcleod was
engaged, Is not 10 be justified the ground of self
defe,.ce and necessity, such necessity ran be
proved 10 have existed. the Caroline not being ia
the act of making an assault upon Canada, nor in
condition To make one. As well might a man who
walks half mile, 20 his neighbor in bed at midngh t
because he suspected him Of medtaiing injury
plead necessity an excuse
y, That the fitting out of the expedition under cap
tain Drew. was an understandable usurpaiion of au
thoriiy ON the part of the Provincial author tiles
The Judge then says;
This brings us 10 the great question in the cnuse
We have seon that n capital offence wa. cominire,
within our territory ia time of peace; and the remain
ing inquiry is whether England has placed the OF
lenders above the law and beyond our jurisdic
by ralilying and approving surh q crime IL is du,
| IL
ratified and approved. Sac has proved publi,
act of defence only. She cannot change the naiur,
OF things. She cannot turn That into lawful wal
which was murder IN time of peace She NAV, n
that way, justify the offended rs between him al.
his own government She Cannot bind foreign
courts oiJusIice by insisting that what in the eye
| The whole world was deliberate and prepared Of
tack, must be protected by the law ofselr defence
In the second place, deny that she can in time
OF peace send her men into territory aud render
| them impervious TO our laws by emboIyins them
aud putting arms IN their hands. She may declare
war; If she claim the benefit of peace as both ma
lions. have done IN this instance the moment
any Of her citizens enter territory they are n
completely obnoxious TO punishment by our law n
II they had been born and ALWAYS resided in Ibis
country.
The concluding paragraphs are as fonows
When Grand Jury have charged that n man has
committed murder in this Stale, / Gun imagine no
case whether the charge relate to the time of omen
public war; or peace. IN which lac ear claim cxemo-
lion from Iiial. II he show that he was in rruth act
ing as soldier in time Of public war the Jury will
acqnii him. The judge will direct them To- obey
The law Of nations. which is undoubtedly a mart Of
the common law So il the accused were aching IN
defence against mn individual invader ofhIs coun-
try. But above all things is il important i'm The lat
ter case for tho jury TO inquire whether his alIega
ton Of deience be not false or colorado
They cannot allow act Of defence. The vii.
iui pursuing even such enemy, though dictated
by sovereign authority, IN country nj peace with
The sovereign OF the accused seeking out that enc
my and taking his life. Such indeed can be moth.
ing but an act OF vcngonce. IL can be nothing bat
an act OF vengeance. II can be nothing bul n vim
la,ion of territory violation Of the nun einal law
the faith of treaties. and the law OF nations
The government Of the accused may approve din.
lomacy may glaze, but Jury can only inouire .ba
'net he was a party in the deed, or to any net Of
illegal violence which he knew would probably en-.
danger human life. IL satisfied that he was n1, os
| sincerely hope they may be- upon the evidence
~ The case beiore US, they will then have the plea
SAINT duty TO perform of pronouncing him not guilty
But whatever may be Their conclusion we feel Tho
utmost confidence that the prisoner ibouob n ca,
ei3ner viii have no just cause 10 complain that lac
has suffered wrong nI the hands Of an American in.
~.
Al our hands the prisoner had n rirb, IN ,oo,;..
an answer upon tho TACT presented by his pano,.
WHISTLER IA law he can properly be holden To iriol
we have had no declaration but 10 examine and
pronounce upon the legal character Of those f.ct. !,
order 10 saisiy ourselves of tho bearing they ,n;yb,
have on the novel and important question snbmnIed
That examination has led the conclusion thai ,.
have no power 10 discharge The prisoner.
lie must. therefore, be remanded, 10 take his ,ria
IN the ordinary forms Of law
u must be understood, says the Journal Of Com.
mcfce HAT the only question before the Supreme
Conri wss' whether The prisoner should. or should
not. be discharged without trial. They decided thai
he ought not 20 he 81 discharged
The New York American. speaking Of the de,i
sion, snys-
The counsel Tor Mcleod. as we learn by let
Ter Of yesterday from Utica, will Immediately su.
out writ Of error, md the case will be cnrr;ed n,
ihe Conri for the Correction Of Errors, which noe,s
IN August.
Wecssnoi soy NO are disappointed in tl,i, re,uIt
lof 'he question - one which. not free from diaj.
'ulie' ~ ITSELF although we have no doubts sbou,
~ has been rendered yet more difficult for Me-
iofS CONT 10 decide upon he merits. by tho an.
,ude 20 which the State hos been placed BY n. Er
.,,-, ,s-adyerss. a. 81 we're, " the Federal Gov
we 1"u" on n----s sbould oG;,r, ,,. A.
OF he Supreme Cont an spj,s.., ,''e necis'on
Nel,' 20 we supreme CouH n The Onfso $50. "
and meantime, rule on application Of Tho -,
counsel would doubtless be made BY the O., :,
E'rors 10 sioy prooeedings IN the case. until s,.I
decision could be had "''al
A. H..