North American. [volume] (Swanton, Vt.) 1839-1841, 1841-07-24
THE CASE OF MCLEOD

decision 81 The Septeme Copri Of the State
OF New York, IN regard TO the Application
of Alexander Mcleod for his discharge
from arrest on a writ oi Aabees corpus.
We have now received the repor, of
Judge Cowan, but from It's great length.
we are prevented from laying it before thc
people. We cannot however. do Justice
to our own feelings, without makiag some
extracts from document, 90 detcfyedly
worthy Of univef,oI commentator.
II appearS by this report. thai the ground
upon which his discharge was asked. ives
altogether unlenable as he neither pleaded
The inrgularily Of his commitment, nor
The uon.jurisdiclion Of he Court. bu,
merely rested on bis owa AFFIDAVIT.
hled N CONT, setting forth two pleas, one
that he was not presest and consequently
took no part in the alcgej offence, anil
the other was, that il pfcsrnt and aiding il
was IN the necessary defence or protection
OF his country against Reasonable con.
spiracy in which Durfee was engaged.
After stating the principles Of law upon
which the case rested, the Judge thus con-
sludes on this count, according to the old
Statute.
" Taking these facts to be mere matters
OF evidence upon the issue Of not guilty
and Of themselves, they are clearly moth
ing more, | atu OF opinion that they can.
not be made available on habess corpus,
even as an argument for letting the pris-
oner to bail, muct less for ordering his
unqualified discharge"
He next proceeds TO examine The new
Statutes, 30 ascertain whether under thai
the plea Of the prisoner was good, upon
which he remarks, " We are left onAer
the restraints " hich have noiicrd hs ex-
isting before the statute. Not one Of them
i removed by it,"
The Judge then proceeds 10 enquire
whether the Court has the power TO enter
nole prosecute in this case, on which he
says, But il is said that we have the
power 10 direct the entry Of q nollr prose.
que, and il is our duty to look into the
merits Of the case, with view to decide
whether il be a proper enc for the exercise
of that power. This proposition is also
put upon new section II the Revised
Statutes, which most clearly gives no color
for the suggestion"
The Court then proceeds in an able and
conclusive manner 10 show, that England
has no right 10 send her subjects ipio the
United States, 10 commit depredatious on
the persons or properties Of American cili-
zens, in time of peace, nor can she afford
any protection whatever, to those who
are found 50 engaged. He thus speaks,
Z" We have seen that capital offence was
committed within orr territory ia time OF
peace; aud the remaining inquiry is wheih-
er England has placed the offenders above
The law and beyond our Jurisdiction, by
ratiiyiug and approving such crime
II is doe TO her, in the frat place 20 deny
that il has been so ratified and approved.
She has approved public Get OF legitim
ate defence only. She cannot change the
nature Of things. She cannot torn that
into lawful war, which was murder in
time of peace. She NAV, in that way,
justify the offender as between him and
his own government. She cannot bind
foreign courts oi justice by insisting lha;
what in the eye Of the whole world was
deliberate and prepared attack, must be
protected by the law OF sell-deience :"
Again the Judge says,
sin the second place, deny that she
can, in time of peace, send her men into
our territory, and render them impcrvioos
to our laws by embodying them and pos.
ting arms in their hands. She NAV declare
war: ii 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 obD0xious
to punishment ~ our law, a. if they he'd
been born and always resided in this
counuy.'i
Judge CowsB, after having 10 an ab.e
and eloquent manner laid open the whole
case, in which he fortified every position
that he laid down, vita indispulable aa-
,hority,--6naily sums OPP with tbs lod3w-
ing appropriate conclusion.