New-York tribune., 1841-07-14


whether England has placed the offenders above Inc law SIC
bevond sur jgrisdic;ion, BY rang and app7svns Soea
crime lis due her, N the FIRST place, 10 deny na
ha, been 90 ratified and approved She mas approved pao
rs act Of t.aG:e defence oHiy Shs cannot ehanse t
nature Of things She cannot that sio lawful wax h'ch
,x Murder n time OF peace. She NAV that way, JUSTIFY
the offender as between MIN and his government Sne
. him; foei-u courts Justice by insisting that what IN
the eve o; the whole world was deoeFate ana prepared
s-rsc must BE protected or the law OF se!'deiencc
In ,e second place deny that she can, II ttle OF peace
apd hr men INTO OUT territory. and render them ieTlous
TO ou, laws By enbodyng them and putting ans ii .e'
hands. She may declare war: she c!a.'' ie "' u
,eace as both nations have done Il TINS instance the no
nat m of her citizens enter our territory they are as com
pletev obnoxious punishment, oy our 4a~' a. VIC! M
been born and slways resided in this country
viii rot, therefore dispute the construction which c'un
sci put upon the language or the acts OF hns and
the aw o.: the transaction viii concede that she had 0!
ac, of Parliament conferred all the which can De con-
tended for in behalf of the Canadian authorities as 'h S
she could do That Fecitins the danger iron P'raa
steamboats, she had authorised any Colonel os hsF army "
lria on Ispectn- that boat lying n our waters l.rne
ed egav 10 assault the Canada shore TO send he OF sol
der in e av or night ,e burn the boat and destroy the
i've. OF the crew That such should oe executed
bu that ore $: the soldiers failing TO make hS escape
should be arrested and plead the of Parliament Such
Al act would operate we'll | admit Chippewa and Until
the men had thread OF the Nagarz river II
would be an mpenetrabe shield I'll they -ud cross 'he t
OF that country where Parliament haze Jurisdiction Be
Even subsequent statute rafyas snd approving the orsl
nal authority could ndd nothing the Potec'on poef~d
bv the first 1t would be but the junction OF ;ro na!es
So saw, Mr. Locke ION Coz. B. ,, en-. -, sect 2S9 OF
king even in Ms doruions In whatsoever ne mas no
authori.y there he no king and may be resisted for
hersover the authority the KING ceases TOO and
becomes Ike other men who have authority shall
ROT cite books 70 that the Queen OF England mas no a
thorty in this a time OF peace.
But said of the bar. Here i more than mere
br a1v explanation
has been demanded By Secretary O; State and the Brit
in ambassador ha, insisted McLeod release, and coaH
sci claim or the JOINT diplomacy OF the United States ana
ENGLAND some such the OF this court u
cerorar from would nave upon the county court OF
general sessions Il spoken OF incompatible with
judicial proceeding against Mcleod in this State as SUIT
actually pending between nations wherein the seton oil
the General Government IN collision with AMI super
To such an objection the is quite obvious Dlp'o-
judicial but executive Junction. and the oolec
would with the force whether II were urged
against proceeding in si this State or the United
States Whether actual exertion OF the treaty-uaHng
power BY the President and Senate any power delegated
Congress b the Federal Constitution, could work the con-
sequences conended for, not called upon to inquire
whether the OF the Nation supposing the case 10
belong National Court the executive OF this State
might pard.n tue prisoner direct noe proseqm be
entered considerations with which have nothing to DO
The Executive power is constitutional department III
this well organized government entirely distinct
from the judicial And that would be the National
Government boted and the State OF Newly ok lett to
take its place independent nation
Not only constitutions entirely explicit in leaving
the trial Of crimes exclusively the hands of the judiciary
but neither the of things Sound policy
il be- conded the Executive power That never act
upon the individual oesder but only By requson on the
foreign and in the instance before u.s. has nc
power even TO inquire whether it be that Mcleod hai
personally violated the criminal laws OF this State 1t has
charge OF the question national aspect only 1t mus
rely accidental information and place the whole question
on diplomatic considerations. These may be entirely wd,
either of the the law stands between this State
and the accused The whole questions OF na
ona honor national strength the comparative value of ne
ona intercourse, or point of etiquette.
All homicide presumed be malicious and, there fore
murder, until the contrary appear upon evldeace. Inc
OF fact, says Foster, viz: whether the facts al
legged by way of juseaon exercise or alteration arr
true the proper aud only province of the jnry Lawu
defence BY individual til recognized it by the
law Of under the Of private Grot b. l. ch
g. l2) instance. (Fo.,er 273.) That ne acted II
right of nation under public authority, thar
matter of Justification 1t is like the mentioned in Eos
ter 265 the public execution Of maleacors and the JURY
Judge whether the authority may not have been ex
ceeded But more, when either public Or mixed war IS a!
legged mitigation either allegation may be fictitious anc
1t shall be put the jury the proper evidence, whether
it existed he plain says Lord Hale fo!
the may be begun by the foreign prince only where 1t
public and he supposes il still palmer where the war IS be-
the king and invading alien being the subject OF
nation with whom the king peace. Hal. P. 3. l63
The same writer puts the punder and robbery By
enerHy tenn pus BELLE which would general be bur
gIaiy Yet he admits might be otherwise If the were
done the regular prosecution Of the i'd 5s5.
Suppose prisoner OF escape, and that his way
home and before ne the nc he should tire
farmhouse in the night and kill the there doubt
that he might properly be convicted either of
der2 When grand jury have charged that man has
med murder in this STATE can imagine whether
the charge relate the time of public peace in
which ne claim exemption from trial If ne show that
ne in truth acting soldier in of public war the
iuy will acqrit him. The Judge will direct obey
the law Of nations which undoubtedly part OF the
law. So the accused acting in defence against
individual invader of his country. But above all things
is important in the latter for the jury inquire
whether his allegation OF etence be false coorable.
They allow OF defence the wiLfu pursu
ing such enemy, though dictated by sovereign
authority country peace with the sovereign Of the
accused, seeking that enemy and taking MS life Such
indeed be nothing but Of vengeance 1t be
nothing but volation of territory visitation of the
cpa law the faith of treaties and the law Of The