Martinsburg gazette. [volume] (Martinsburg, Va. [W. Va.]) 1833-1855, 1841-07-22
ngcIsIoN 81 AseLfoDss cAsg

ed his release from 4cuSt0cg Wtboas tftdf i
upon the charges brought against hun by
the Grand Jufy or Niagara county. TIE
.aDpf,catfon is denied, and Mcleod IS re-
mandcd 10 prison 10 d,raa his trtdI IN due
course Of lar.
The opinion delivered by the Court IN
the case occupies large space, and goes
into thorough examination oitAe vari-
Gus poinfs involved in Il.
The points as laid down by the Court
are thus sumnariy stated IN the Evening
Pest:
/. That the points raised by the prison.
or. FIRST. that ne did not participate IN the
alleged offence, and second, that, If pre-
sent, he was acting in defence OF his coun-
,ry from reasonable insufrecson, can
no, be made available in Habeas Cor
pus. even for letting him 10 bail, much
less for ordering his unqualified discharge.
2. Tat on Habeas Corpus, the exami-
nation as 20 guilt or innocence cannot,
under any circumstances, extend beyond
the depositions OF proof by which the pr.
soner is committed.
8. That these views are sufficient an-
swer to the present application, but as
counsel hud raised the question Of Juris-
d.gton, the court were willing to go into
it.
A. That the plea that this IS national
question, TO be settled by the diplomatic
puwers of the United States and England,
does not divesi the court Of jurisdiction,
because to warrant the destruction OF
property or the taking of life, on the
ground OF public war, there must be what
IS called lawful war, by the law Of nations,
which can never exist without a concur
renee Of the war-making power.
5. Taat if the affair in question can be
tortured into war between this nallon and
England, The United States might take
possession of Mcleod as prisoner OF war
6. That the order, under which Nc
Leod and his associates acted was not a
lawful act Of majesty, as contended for
by Mr.. Fox, since the transaction was
Iben lawful db inttio and required no roy
al recognition, which is not pretended on
either side.
7. Tha; regarding Durfee as the enemy
of England, who had taken shelter on the
neutral territory Of The United States, she
had no light, on any pretence, TO pursue
him beyond her own limits, without vio.
lating the rights of the neutral nation.
S. That the transaction in which Nc
Leod was engaged, is not to be justified
on The ground Of sell.defence and neces-
sIty, as no such necessity can be proved
10 have existed, the Caroline not being in
the act OF making an assault upon Cana
da, nor in condition to make one. AS
well might man who walks half mile
TO his ueighbor in bed at midnight, because
he suspected him of meditatng injury,
plead necessity as an excuse.
8. That the fitting out of the expe dltlon
under Capt. Drew, was an unwarruntable
usurpation of authority on the part Of the
Provincial authorities.
The Judge then says:
"This brings US to the great question
in the cause. We have seen that u capt
tai or nee was committed within our ter
rtery in lime Of peace /; and the remain
ing inquiry is whether England has placed
the offenders above the law and beyond
our jurisdiction, by ratilying ard APPROX
ing such a crime. ii is due 10 her, IN the
first place, to deny that II has been so ru-
fled ard approved. She has approved a
public act Of legitimate defence enly. She
cannot change the nature of things. She
canuot turn that into lawful war which
was murder in time e peace. She may,
in that way, justify the offended ns be-
tween him and his government. She can
not bind foreign courts Of justice by in
sting thai what III the eye Of the whole
world was n deliberate and prepared at.
tack, must be protected by the law Of self
defence.
la the second place, deny tia, she
can, in time OF reace, scnd her men into
| our territory, and render them mperyous
to our laws by cmbodying them aud put
ting arms ia their hands. She may de-
clare war: if she claim the benefit OF
peace, US both nations have done in this
instance, the moment any Of her citizens
enter our territory, they are as complete
" obnoxious TO punishment BY our law,
as if they had been born and always re-
sided in this country"
The concluding paragraphs are as fol.
lows :
When a Grand Jury have charged that
| a man has committed murder in this State,
can imagine no case whether the charge
relate to the time OF open public war or
peace, in which he can claim exemption
from trial. If he show that he was in
truth acting as soldier in time Of public
war, the jury will acquit him. The judge
will direct them 10 obey the law of nations,
which is undoubtedly part of the COM
mon law So if the accused were acting
in defence against an individual invader
of his country. But above all things is il,
important in the latter case for the jury
to inquire whether his allegation be not
false or colorado.
They cannot allow as an act OF defence,
the wiiul pursuing even such an enemy,
though dictated by sovereign authority,
into a country at peace with the sovereign
of the accused, seeking out that enemy
and taking his life. Such indeed can be
nothing but an act Of vengeance. 1t can
be nothing but a violation of territory, a
violation OF the municipal law, the faith
of treaties, and the law of nations.
The government of the accused may