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

REVIEW
OPINION OF JUDGE CoWEN,
Ofhe Supreme Court ofthe State Of ~ York,
IN THE
CASE OF ALEXANDER MCLEOD.
TO THE HON. DANIEL WEBSTER,
SECRETARY OF STATE OF THE UNITED STATES,
The following Review Of the Opinion Of Judge
York, in the case Of Aierander sLsod, is respect
fully inscribed, by A CITIZEN OF New YoaK.
NIX REVIEW, &c.
I The importance Of the questions involved in
| the opinion delivered BY Judge CowEN. Of the
Supreme Court of the State Of New York, in
the case of Alexander Mcleod and the erro-
neous principles of national law put forth in that
opinion, seem TO require that the true doctrines
involved in the case should be placed in a cor
rect light before the country. To that end, we
have yentured to embody the result of our ex-
| animation of the subject in the following review
OF Judge CowENs opinion. Asa
The opinion is deficient in methodical ar
rangement Of the several positions taken and
maintained by the Judge; and this confusion in
creased by badly arranged citation of authori-
ties, and rambling mode Of discussing the sub
jects IL is also much too long being nearly
double the length required to discuss the matters
really in issue, even in Judge CowEN's mode OF
discussing them. Why, for example, go through
with an examination of the question whether
our courts have Jurisdiction, and right 10 try a
foreigne1 for crime committed within our
State, and quote the authorities bearing upon
| the subject 10 prove the, jurisdiction, when not
| a person, lawyer or layman, ever doubted il
aud when the Judge himself finally says, g want
of jurisdiction has not been put on the ground
that McLsod was foreigner
The other branch of the question of jurisdc
ton, discussed at great length by the Judge,
seems to us an equal waste OF labor and learn
ing. As we understand il, the case of Mcleod
does not involve any question Of jurisdiction;
for il must be conceded that our courts have ju-
risdiction over all cases of murder committed
within the boundary of our State. McLeod's
case presents for consideration--not a question
Of jurisdiction, but a question of guilt or limo
cence whether the homicide with which he is
charged be crime according to the law of ma
tions.
If sheriff should, in pursuance Of sentence,
hang person convicted Of murder, and after
the execution il should be ascertained that the
person executed was innocent, and grand Jury
should thereupon indct the sheriff for the muir
der Of the person executed, the sheriff could not
interpose an objection to the jurisdiction of the
court, but would rely for his defence and justif-
cation upon the fact of conviction by court
Of competent jurisdiction; thereby showing that
the homicide in him was not a crime.
So also il soldier should be tried by a court
martial, and sentenced to be shot; and, after his
execution, those engaged in it should be indict-
ed for murder their defence would not be
want Of Jurisdiction in the State court, bu.
justification before that court, under a regular
court martial, conviction and sentence, thereby
showing that the homicide was not murder,
Suppose, after the peace with Great Britain,
a British soldier had come within our State, and
had been arrested and indicted for murder com
mitted in the attack on Buffalo during the war !;
he would not think of raising a question of ju-
risdicion in the court, but would rely on the law
Of nations to justify the homicide, and relieve
him from the charge of crime. Indeed, when
ever question of the jurisdiction of court
is raised, it necessarily admits the charge or
claim preferred. The plea to the jurisdiction is
one of confession and avoidance; surely the
counsel Of Mcleod never intended to admit, for
moment, the crime Of murder, with which he
was charged, and seek to escape its consequent
ces by alleging that the court had pot jurisdic-
ton over the offence! In this part of the OPT
Mon, therefore, we think the Judge must have
been fighting shadow Of his own casting.
There is, also, another part of this opinion,
and no inconsiderable part Of it, that appears to
be waste of learning and authorities. II is that
part in which the Judgeproves, beyond question,
'that every voluntary entrance into neutral ter
ritory with hostile purposes, is absolutely I'M
lawful" yet, after an elaborate discussion Of
this question, citation of authorities at great
length to prove the unfdpJuines Of the viola
ton Of our territory by England the Judge says,
g that the act was one of mere arbitrary usurpa-
ton mas not denied on the argument; nor has
this, that / am d,eare OF, been denied by any
one e.rcept England herself"
We concede that the authorities cited show
that the hostile attack upon the Caroline, and
the violation of our territory, was unlawful;
that is, without adequate cause; but not one OF
all the authorities which pronounce aviolation of
territory unlawful, denounce upon the military
of the nation, under whose authority it is done,
any personal penalty.
If we examine history, we shall find that
quite as many wars have been commenced with
out, as with adequate cause, when tested by the
general reason and sense of mankind yet no
one ever thought of making that the test of the
impunity belonging 10 the military engaged
Such test can only be applied to controversies
between individuals, where there is a common
arbiter or Judge to decide; never between ma
tons, who admit no Judge but themselves. The
argument, therefore, on the side of NcLeod, is
not at all weakened by not denying that the at
tack was unJustnaOie on the part OF MS nation.
In the examination of this subject, we shall
concede what has never been denied, and what
has taken so much of this learned opinion to
prove, to w.t. that foreigner is liable TO be
tried by our courts for crimes committed with
in the State; that the courts have jurisdiction in
all cases of murder committed within the State;
and, for the sake Of the argument, that the hos
tile expedition, in which the Caroline was burn
ed, and Durfee killed, was unlawful viola
ton of our territory.
We proceed, then, to the discussion Of the
main question involved in this case, 10 wit /:
whether Mcleod is entitled 10 the impunity ofa
\ .,Il,ar ~ ,ir,a of war