Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1841-07-16
From The .v,u YORK. american, .Ju'y l3.

CASE OF MCLEOD.
Judge Cnwan pronounced the decision Of the Court,
after careful and able Of the whole argument
Of counsel After stating that the prisoner charged
with the murder of Amos Duriee, lie proceeds 10 DIS
cuss the proprie,y Of dischargng him on the facts
stated in his affidavit. The points LAID down by the
learned Judge, gather them from hasty peruss
are
l. That the points raised by the prisoner, first that
he did not participate in The alleged offence and sc-
cond, that IT present, he was acting IN defence OF hls
country from reasonable lnsufrec'ion' cannot DC
ma de available in flabeas Corpus, even tor letting
him to ball. much less for ordering his unqualified DIS
charge.
guilt cannot, uuder any circumstances ex-
tend beyond the depos't';rs or proof ny "hich lhe
prisoner is committed.
3 That these views arc n sufficient answer 10 the
present applications but counsel had raised the ques
ton Of jurisdiction, the court were willing 10 go INTO It.
A. That the plea that this IS national question 10 be
settled by the diplomatic powers OF the Unitrd States
and England does not vest the court OF jurisdiction,
because to warrant the destruction Of property or the
taxing of liie the ground Of public war; there must
be what is called lawful war, by the law OF nations,
which can never exist without concurrence oil the
war-mahing power.
D. That If the affair in question can be tortured into
war between this nation and England, the H. ). might
take possession Of Mcleod a prisoner of war.
g. That the order under which Mcleod and his as
socia,es acted was not lawful act Of majesty,
tended for by Mr. Fox, since the transaction then
lawful ab in,tio and required no royal recognition,
which is not pretended on either side
= That regarding Durlte as the enemy of England,
who had taken shelter the neutral territory Of the
IT, S she had no tight, any pretence to pursue him
beyond her own limits without violating the rights of
The neutral nation.
6 That the transactions in which Mcleod was n
on ged is not be justified the ground sedeence
and necessity as no such necessity can be proved TO
have existed the Caroline not being in the act OF max.
ing an assault upon Canada, nor in condition 10 make
one As well might man who walks half mile to
his neighbor in bed at midnight, because he suspected
him OF meditang injury, plead necessity as an excuse
g. That The fitting out of the expedition under Capt.
Drew was an unwarrantable usurpaon Of authority on
the part Of the Provincial authorities.
The Judge then says:
This brings US to the grea. question The cause
We have seen that capital offence was committed
within our territory time of peace and the remaining
inquiry is whether England has placed the offenders
above the law and beyond our jursdction by ratfy
and approving such crime. Ut IS due TO her, in the first
place 10 deny that it has been so ratified and approved
She las approved public &C, Of legitimate defence only
She cannot change the nature Of things. She cannot
turn that into lawful war which was murder in time oil
peace She may, in that way, justify the offender as
between him and his own government She cannot
hind foreign courts Of justice by insisting that what in
the eve Of the whole world deliberate and pre-
pared attack must be protected by the law Of selfde
fence
ain the second place. deny that she can, in time o.
neace send her into our territory, and rendei
Them inn pervious to our laws by embodyng them ant
uniting arms in their hands. She may declare war:
she claim the benefit Of peace, as both nations have
done in this instance the moment any OF her citizens
enter our territory they completely obno xous
punishment by our law, if they had been born an'
always resided in this country