The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1841-10-09

1 lusllce cannot decide adversely. OUCH uas
produces consistency and harmony in every de
partment Of the General Government. and pre-,
vents all collision with the Judicial departments
Of the State Governments. Without such
| rule, the intercourse Of our Government win
other nations becomes empty diplomacy when
national matters, discussed, agreed ON, ana SCI.
| lied by the proper Executive Department are MOI
only disregarded by the Judicial Department o.
the Government, but are perfectly annuled ~
adverse decisions and judgments, ana eAecu'
tons carrying into effect those judgments
IT, in England, the determination OF the 20
yernment as 10 the relation in which another
Government stands 10 il, shall control the nights
of individuals, in q litigation with which inc
Government is not the most remotely Connected
and in which the public has no interest, how
much stronger is the reason for apply ing the rule
to criminal courts especially when the guilt or
innocence Of the accused is made TO depend up
ON the decision, as TO the relation IN which ano'
Their Government stands TO our own, In hostile
collision, where the accused was an actor, I'M
conscious al the time Of the possibility thai the
par, he took could subject him TO the imputaiion
Of crime
We have now concluded our examination oil
the great principles Of national law involved IN
the case Of Nc Leod, and we feel great confidence
in saying we have, by the most ample authority
maintained
LIST. That hostile attack and violation OF ouI
territory, in time Of general peace, by the au-
thorty Of the British Government, with appa'
rent cause is so far ''idpfui mar" Of the I'm.
perfect sori," as to furnish impunity TO the mill
lary engaged in il.
I'd. That the instructions given TO the Gov
ernor or chief officer of Canada, under the CIR
cumstances and situation OF that colony, contain
ed sufficient authority to legalize the attack; or
| If that be doubtful, then,
| Sd. That the sanction by the British Govern
ment of the attack, supplied any possible deh
cheney in the instructions.
4th That the Executive Department OF oul
| Government has decided, that the relation 10
| which Great Britain stands towards our Gov
| eminent, as to the affair OF the Caroline, Is
that of "imperfect par !" and that .'indivdu
ais concerned in that transaction ought not, by
the principles OF public law, and the genera
usage Of civilized States, TO be holden personal
| ly responsible" and
| 9Th. That such decision, by the Executive De
partment Of our Government, is final and con
| elusive upon all the courts in the United States
Ii remains for us now 10 inquire whether th'
mode ofrelef, by habeas corpus sought by NC
LeOd, ought, under the circumstances, to have
availed him.
| Upon this branch of the case Judge CowEN
| for the sake Of argument, comedies TO McLeod
the impuniiy which he claimed, as being one o
| the military force who made the attack upon
| the Caroline, vet decides that he cannot be dis
charged upon habeas corpus, because the grana
jury hare indicted him for murder?
| The principle advanced by the Judge is, thai
man charged with murder By The finding o
| an Indictment By grand jury cannot, ,aide,
any circumstances, be admitted TO bail, or be
| discharged on habeas corpus We readily con
| cede that in case where person cannot bt
admitted 10 bail, he cannot be entitled 10 dis
charge on habeas corpus.
The Judge has cited several cases where ap
| plications were made TO admit 10 bail persons
charged with murder. The cases cited, how
ever, are all cases where the application wa.
| made before Indictment; and what is said bJ
the Judges about the effect of an indictment, a.
precluding the possibility Of letting to bail i
mere dirfn that question not having arisen II
| single case cited But although Judge Cow
EN- admits that his cases .'were all before indict
meni found, "he says the principle Of refusing bal
| after indictment for murder 'has never, thatw'
are aware Of been departed from in practice un
| der the English habeas corpus act" Had thu
Judge searched Us diligently for cases in iayo
of this application, as be seems 10 have done To-
cases against it, he certainly would have COM
| to different conclusion as 10 the existence Q
authorities for letting TO bail after indictment
| whatever might have been his conclusion as 4
the true principle OF law. Whilst the Judg'
| has not been able TO cite single case where
| after Indictment the question Of bail has &C
tually arisen, we have been able 10 find seyera
where the question has not only arisen, hn
where the prisoner has been let to bail after in
dictment for murder and other high crimes.
| 3 RacOn A. 436, title Hdbeds Corpus: "Al
so the court will sometimes examine by athdavi
the circumstances Of fact on which prisone
brought before them by an habeds corpus hat
been indicted, in order to inform themselves, O
examination Of the whole matter, 1rhether Il
reasonable 10 hail him or not. And, agreeabl
hereto, one Jackson, "a Geo. no who had bee
indicted for piracy before the session pt a.
mralty, on a malicious prosecution, brought hi
hdbens corpus in the said court, in order 10 b
diseharged or bailed. The court e.rnmine
he vhoIe circuulstancesof The fact by dbfddrit
upon which il appeared the prosecutor himself
il any one, was guilty, and carried on the pr
sent prosecution to screen himself; and Their,
upon The court, in consideration Of the unrea
condolences Of The prosecution, and the unce
tainy Of the time when another session Of Al
miralty might be holden, admitted the sal
jackson TO bail.
3 East. 1866, King VS.. Marks lie Blan
SAYS; "This court have clearly right to ba
the parties accused in all cases OF felony, if the
see occasion, rhenerer there is any doubt ell
er on the lap or the facfs Of the case"
Woodwork, J. in the case Of Idyioe. Con
SIS, cites with appreciation this rule Of lie Banl
He SAYS. "The court viii bail whenever thel
is any doubt on the iaw or the facts of III
casen
II is irue these were cases before indictmen
But the rule is laid down without; and we ca
see no reason for limiting il 10 cases before il
, dictment, especially where the prisoner show
.,there is doubt on the iaw Of The case" an
more especially when he shows tn ''by ii
law Of the case" he is innocent Of the erin
imputed to him.
baron Al. IS, tile Bail in criminal cases
:" So if man be conricfed Of felony upon ev
| dence by which IL plainly appears 10 the cou
he is mol gully or'h," he win be l., 10 la
Why, then, not Iet him TO bail before conviction
"if Il piainiv appears to The court that he is n,