Sunbury American and Shamokin journal. [volume] (Sunbury, Northumberland Co., Pa.) 1840-1848, 1841-07-24

nary forms of law. The opinion was delivered by
Judge CowAN, and was unanimous. 1t occupies
nearly eight columns the New York American
The express Of yes,erd,y says
What course Mel Gods counsel will take is no,
known, but it is said that he will serve out writ of
error, and that the case will be carried to the Couu
for the Correction oil Erors, which meets in August
Then, il the prcsen, decision should be affirmed, an |
appeal lies TO the Supreme Court of the Uuited
States.
We learn" the Albany Advertiser says, "ftom |
Mr.. Hilyer, one of the n Y. Deputy 'Shenffs, who |
arrived from Utica this morning, that Mcleod re-
mains for the present in custody of the Sheriff of
Oneida county. Whist further course of proceed
ngs viii bc taken is not yet determined. Mcleod,
II is said, is anxious to go TO jury forthwith should
he determine upon this course, the application for
writ of error on the judgment of the Supreme
Coult, as intended by his counsel, will, of course
be Abandoned
awe caunot say" says the n. Y. American, awe |
disappointed in this resut-for the qucs ion is !
one which, not free from difficulties in itself, ol
thoIgh we have doubrs about it, has teen rem
dered yet more difficult for a New York Court to
decide upon its mer Is, by the attitude in which the
State has been placed y its observation-disclosures, as
it were TO the Federal Government. If the Cour,
of Errors should affirm the decision Of the Supreme
Court, appeal lies, and will he taken 10 the
Supreme Court ofthc United States and meantime,
a rule, on application of the pisioner's counsel,
would doubtless he made hy the Couit of Errors to
stay proceedings in the case, until final decision
could be had"
We avail ourselves the following synopsis of
the case, from the New York Evening Post:
Judge Cowap, after stating tina, the prisoner was
charged with the murder of Amos Durfee, proceeds
| TO discuss the propiety of dischargins him on the
facts stated in his affidavit. The points laid down
by the learned judge, as We gather them from
hasy perusal, are
! /. Tha, the points raised by the prisoner, first,
! that he did not participate in the alleged offence,
and second, that, if present, hd%as acting in de-
fence of his country from reasonable insuuecton,
canno, be made available in Habels Corpus, even
for letting him TO bail, much less for ordering his
unqualified discharge.
=. That on Habeas Corpus, the examination as
to guilt or innocence cannot, under any crcum-
stances extend beyond the depositions or proof by
which the prisoner is committed
3. That these views are a sufficient answer to
the present application, but counsel had raised
the question of jurisdiction, the coult willing
TO so into it.
a. That the plea that this is national question
to be settled by the diplomatic powers Of the United
States and England does not divest the court of
jurisdiction, because to warrant the destruction of
properly or the taking of the ground ofpubc war,
there must be what is called lavh war, by the law
of nations, which can never exist withuu, concur.
! renee of the war.makng power
s. Tha, il the affair in question can he tortured
into war between this nation and England, The
United States might take possession of Mcleod as
prisoner Of war.
6. That the order, under which Mcleod and his
associates acted not lawful act of majesty, as
con,endcd for by Mr.. Fox since the transaction
was then lawful 0J initio and required royal
recognition, which is not pretended on either side
7. That regarding Duriec, the enemy cf Eng
land, who had taken shelter on the neutral territory
of the United States, she had no right, any pre-
0 ,ence, to pursue him beyond her own limits, with
0 out violating the rights of a neutral nation.
i s. That the transactions in which Mcleod wa'
engaged is not to he justified on the ground OF sc
u defence and necessity, such necessity can b'
proved to have existed the Caroline not being in h'
e act of making assault nPon Canada, nor IN
l. condition to make one. As well might man wh'
s. walks half mile TO his ncghbor in bed at midnight
because he suspected him of medtlling injury
plead necessity as an excuse.
:, 9. That the fitting out of the expedition und
Capt. Drew, was unwauantsbe usurpatIon {
authority the par, of the Provincial authorities
The Judge then says
"1hs brings US to the great question in The caus
We have seen that a capital offence was commte
y, within our territory in time of peace; aud the n
e. naming inquiry is whether England has placed IL
a. offenders above the law and beyond our jurisdiction
n 10y ratiying and approving such crime.-lt
due 10 her, in the first place. 10 deny that it h
nd been so ratified and approved. She has approve
cir A PUBLIC ACT OF LEGITIMATE bErENcE oNL
IRE She canno, change the nature Of things. She
10 time of peace. She may in that way justify Il
offender as between him aud his own goveinmeI
nts She cannot bind fJiogn courts of justice by ins
ses ting that what in the eye Of the whole world was
, bp oil