Daily Richmond Whig. [volume] (Richmond, Va.) 1840-1842, 1841-05-26
CASE OF ALEXANDER MCLEOD.

CASE OF ALEXANDER Mcleod.
MAr 10, is4l.
Mr. Spencer commenced by saying that 50 mucl
had been said out of doors in respect Of this case
and in relation the motion, which appeared to hin
80 extraordinary, that he deemed ht and proper tC
state the relation he bore TO it and the motion he
had presented TO the Court. lie received sPccia
retainer in the early part OF the proceedings and the
whole had been done in conformity with his views
and directly under his sdvice, and il there was any
odium any crime in what had been done, he wa,
willing to bear his full share, and answer TO the
laws of his country.
Il was said that his appointment under the Fede-
raj Government ought to induce him to step out OF
the defence Of Mcleod, but they little understood
the merits of the question his views Of his rcspon
siblity and duty, il they thought him capable OF
such thng-he had vet to learn that Counsel OF
the State Of New York was called upon 10 give up
the duties he owed his client because other duties
deyolved upon HIM.
He was not there as a District Attorney, but as
Counsel Tor Mcleod, and he did not believe that his
duty as such would run counter to the duty he owed
to his country.
Party prints had endeavored TO make this po-
lrical concern. Both parties had awaited themselves
of it, aud stepped aside to make one oil political
consideration.
II was doubtless question as novel rs it I'M
nor,ont and il had been urged with great zeal that
there was the absence Of all precedent lie had
been charged with temeriIy tor presumng to come
and require the Court TO perform what their duty
The other party were equally so, and he dehed them
TO find one in Christendom. So, as some case must
ALWAYS form precedent, he hoped the discharge of
this man will form precedent that man could
not be indicted COR murder while o6eying the order
OF his sovereign.
The whole argument was founded funda-
mental error for the other party assumed what they
utterly denied, and the whole argument was based
on an assumption OF a fact, they say Is untrue
They assume TO be true that Mcleod was guilty of
murder, and assuming that they made considerable
head way in showing that the Court could not dis
charge him-but was it sol Had they come to con-
reds that he was guilty AMI ask the Court TO dis
Charge him from trial. mol they came to ascertain
the facts and those facts question law arose
rs TO what the Court can do, and what ii ought TO
do. Il was founded different assumption that
he not guilty.
lie did not insist that there any thing pecu-
liar to that Court, the State Courts; he conce-
ded that the Supreme Court had as much right TO
try offenders as any other Court, when the offence
had been committed within its jurisdiction. Ii was
not a question Of State rights and the rights of the
General Government; he denied that any Court un-
der the Government had the slightest right TO put
Mel ,eod on his trial He denied that Congress had
power to egislate and bring this within the iu
riSdction Of the Courts and make 1t one for trial
Why' because there offence: II was unheard
of, unprecedented, and the Court ought not pro-
coed wth the cause.
Then cane the question, had the Court the pow
er to prevent III If they had not the power, then
surely they would deny the motion; but If there was
yet LETT to the Couit some discretion in the admin
Istrnton OF the law, he hoped TO shew that II res
ted in that Court.
His motion was TO discharge the prisoner without
trial-the form they were Indifferent about, wheth-
er by nellie pr0S,quf or without, whether they should
order HIM TO be discharged absolutely on his own
recOsn:zance, they were alike Indifferent to each,
80 long as was perfectly understood that the tria
TO be proceeded with, and the country pre-
served from the disgrace which must atlach TO IL; he
MIR. Spencer felt much interest in saving his
country from indellible disgrace as to save Mcleod
ON trial.
The gentleman then proceeded TO prove that the
Court had power to order noLle proSsqli be en-
tered; to look beyond the indictment and try the
at bar if they pleased.
The gentleman said he did not appear there 10
Justify party the other; TO enquire into the
right to come our shore and burn the Caroline
&c; that question was not invoved-hc would
leave It to be selled by the proper tribunals; the
only question To be presented there was, there
an open resstance-was there IN form and substance
a war; II So the rights and immunities Of war must
attach to all concerned in the transaction. If their
HOnors found that all quiet and peacea BILE and
riots and disorders ragged frontier then they
might say il was invaded-but could they hnd il
so-what said all the documents? why, thew all
spoke Of n state OF instruction of lawiess marau
ders on side, and the British Provinces on the
other It state OF war to all inIenis and pur-
poses, and must be so considered.
The gentleman denied the murder. IL had been
said he continued, that the Grand Jury were not
composed Of patriots--it might be true that they
were not patriots; but II the Jury were not the
witnesses patriots, who were ready to heap
peIIurIes and peIjurers mountains high, and as many
more could be had as they were pleased TO order
Col. McNab had admitted that he ordered the expe
dition-he was guilty Of MURDER then why not find
Indictment against himl IL was said that one
was found-why did not the Governor send a re-
QUESTION for hIml he was 10 he found, better TO do
81.
like Mitchell, who had heen taken few days since
on the ST. Lawrence. Gov. Head was also an &c.
cessary before the TACT, why ndict him as a muir.
dercr and marauder and burner of steamboats,
there would be courage and mln'iness in this, If it
was presumption. The whole proceeding was an
absurdty-its equal cannot he found, and he hoped,
Tor the honor Of the world it would remain single
and alone, precedent without followers
The gentleman appealed to the Court TO arrest
the progress Of the cause and not crafty the NAL.
contents on the border and in Canada. by putting
him on triol and thus hurryng on a war which they
desired. that they might share the spoils-the Court
would surely never lend its sanction TO such pro-
ceedng this.
The gentleman then proceeded TO reply TO the ar.
gumenis Of the other side, that the men composing
the expedition were only volunteers, and contend.
ed that all soldiers were Volunteering matter
whether for a term Of years or for one expedition
they we're soldiers in the public service if only en-
gagged Tor an hour or for years.
This case he said in continuation, was one of
merest acknowledgement that the boat did deserve
70 he burnt and destroyed; but that they passed an
imaginary line to do il II they within the terri.
tory. Let the English answer II then. He called
upon the Court n say that they rightfully en-
ployed. II the persons on board had been found on
the other SIDE, they would have been dealt with &C
cOrdIng 10 law, and could not have in,erfered
with IL, bat the question then Of the boundary line
snoud be settled 10y the proper authorities.
The gentleman then proceeded 10 show that by
thc sound construction Of the Constitution of the y
States, and With proper regard TO the system Of
Government, every thing pertaining 10 the executive
department, and them alone, they must have Rxcu
sive jurisdiction u. Redress for this hostile in
yhson, destruction OF property and murder Of a 81
uzen had been demanded, and still was IN the course
II tTenty. Reference thea made to the arti-
fles Of the Constitution, To prove that the United
States Government could alone take cognzance Of
this Transaction.
u was an offence against the United States Go.
vernment. and u had taken II IN hand, and when
they assume the authority, that authority became
exclusive n not, II would be subiectng a party TO
answer twice two.
II was a public act Could they ndict On invading
army and hold them responsible 10 the authorities Tor
any Ohencei The offence must be against the United
states Government and not against the State iurs-
dlcton, and the murder Of Duree was as much sub
sect Of redress ss the burning Of the Caroline.
There was no offence against one state that was
not an offence against the whole. The gentleman
also denied that ny the Court acting in this matter
they we're cneroaehing upon or interfering with the
general government
tie admitted that there we're no Courts in the Union
IN which Mcleod could be better tried than in the