New-York tribune., 1841-07-14
rur CASE OF MCLEOD.
IN s1rREME COURT.

co,ygy The following summary OF its NEST import
ant points:
The prisoners petition, which the writ allowed
stated that MS commitment the ls OF Niagara County
had been regular; but this yroand asandoned-
The indictment, returned by the sheriff which Mcleod
pleaded guilty, charges tne usual form, the murder OF
AMOS Duree oy the prisoner ms fact and others contained
the bill, open denial bv affidavit or the allegation
Of any fact show that the imprisonment IS unlawful Ia
such the Court proceed summary manner 10
allegation. support Of the imprisonment and 20 dispose
Of ,he party the justice Of the MAJ require Under
color Of complying with this provision, the prisoner rot de-
nying the jurisdiction OF the Court the regularity OF the
commitment mas inerpo-ed affidavit stating certain
,rsic facts Is tina; he absent and did aot parc
pate in the alleged offences the other that present and
acting it was in necessary defence OF his country against
reasonable nsurrectOn which Duree nldiag AZ the
time.
Taking these facts OF evidence upon the
issue Of guv and Of heseve, they clearly nothing
more OF opinion that hey De made available
nabeas corpus argument ;o letting the prisoner
TO bail much less for ordering ma unqualified discharge
That would be all the authorities previous the
Revised Statutes his Counsel do deny The rule Of the
laid down in the British books aud which has
leen departed from practice under the English habeas
corpus ac that charged VeIth murder by verdict OF
he Corones inquest may be admitted 10 bail though not
after the finding Of indictment by the Grand Jury.
The dispositions heretofore taken in the being thus
cut of have left OF inqurng as TO the guilt
OF the accused nothing be better settled
the as OF
under am circumstances extend beyond the
iepo,ons or proofs which the prisoner committed
Many be found the English books were brought
forward BIZ the Court which in several respects stronger
Tor the prisoners than the before Us Iney were mostly
founded charges OF character much less serious than
murder Thev were all before Indictment found some Of
them presented of things which was plainly I'M
possible convict; and last though not least they were
applications ba-a thing which McLsod doeS not
isk for. He demands absolute discharge, on grounds
nrhic ne o
be entitled bail The Law Of England formed in this
espec the law of Newior until habeas corpus
took effect.
It Is necessary next to inquire whether the new
mas worked any enlargement OF powers beyond what
they up the time when It passed The
section which the prisoners Counsel chiefly rely R.
30, AZ and the words thai tie party brought
before such officer the OF any writ Of ha
corpus may deny any of th- material facts forth in
the return, ailege fact 10 ShO either that has
prisonment detention Is lscfri or Tint he ~ entitled
70 his dscarge winch allegations denias shall be on
oath Under th, the COUNSEL claim the right 60
behind Indictment, and prove by affidavit that hc Is
guilty. We have already shown the absurdy Of such
proposition in practice and not disposed TO admit its
adoption by Legislature without clear words necessary
construction.
It's object is entirely pan without the rule. of
construction 1t plainly limited the awfuness OF the
authority under which the prisoner detaiSed without being
extended the force OF the evidence upon which the author
" exered which may be IN the prisoner power 70
4dducc the TRIAL
But it i, said we have power direct the entry OF noe
proseqa and this proposition Is also put upon
Of the Revised Statutes, which most clearly gives 10
oor for the Suggestion, At common law the Attorney
General alone possessed this power but 1t has been by sew
eral Statutes delegated District Attorneys. The Legisa
ture finding the power in so many hands and fearing its
abuse provided that should thsreatter be lawful for
aav District Attorney RoLe proSequ without leave
the Court having jurisdiction try the and this
r vision the prisoners counsel contended, enlarged
avt grounds OF national policy and that
despite of the Attorney General and District Attorney
Conceded that before the Revised Statutes We had
power give such drccten the argument seeks TO draw
from tile Statute giving Ueto agGtnSt c noHc rosequl
positive power compel It's entry. Even ii we had such
power the argument would be quite extraordinary II de-
nand that should finally dispose Of indictment for
murder the of evidence by which guided upon
a motion to aside default change Il In any
view this question belongs primarily the Executive De
partrnent OF the Government.
We should have felt ourselves perfectly satisfied to dis
pose OF the this first question: without looking farther
the Of the transaction out OF which this indictment
has But counsel made the question Of lurisd:c-
ton their main topic have looked this far pos
sble.
Ii Is said tba, this belongs exclusively the forum
of nations To show this the affidavit of Mcleod Is pro-
duced, from which the inference is sought to be raised
that the Niagara frontier in a of against the
contiguous province OF Upper Canada that the homicide
committed by Mcleod If at all as OF military IN
DESTROY the boat Caroline tha, he British subject.
That the expedition crossed boundary sought the Caro-
line her moorngs in Schosser and there FIRE and
burned her. and killed Duree of citizens,
lawful to do in time OF
To the destruction Of property the taking OF
life, the ground of public war, II must be what is called
larfi By the law Of naons-a thing which can never
exist without the Of the rcaymakng power
No private hosties, however general however just will
constitute what called legitimate and public state Of war
So fnr he WO
ted States from being of when the Caroline
destroyed, that both struggling avoid such
of the excitement then prevailing the frontier as
might furnish the least occasion fer Both had long
maintained the relations of national aiy and have done
ever since under actual eay So far from England t
ting out warke expedition against the United States
any pAbc body she utterly disavows any such object while
on our side we inflicted legal punishment the leaders
the expedition of which Dure made part the ground
that Esgland then at peace with US Whatever hestie
she did aimed exclusively private offenders and
if there any sense The parties Eng on
one side and her rebel subjects aided BY certain citizens of