Review of the Opinion of Judge Cowen, of the Supreme Court of the State of New-York, in the Case of Alexander McLeod
N. T. Eldredge, 1841 - 43 σελίδες
In 1837 an attempted insurrection in Canada was put down, and the group fled to an American island in the Niagara River. A small steamer, the Caroline, brought provisions to them, and the British sent out a force to destroy it, which they did, killing Amos Durfee in the effort. The incident led to a controversy between the United States and England. McLeod, while in Buffalo, boasted of being Durfee's killer. He was arrested and charged by New York state with the murder. The United States government tried to prevent the trial, and failing, the United States Attorney successfully defended McLeod, who probably had no part in the event.
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actual admit afterwards apparent cause application approval authority becomes belongs British Government called Canadian Caroline carried cause character charged Chief Justice circumstances cited civil committed concerned conclusive consider crime criminal decide decision depend determine discharge doubt effect engaged England English entirely evidence examination Executive Department existence facts force foreign formal furnish habeas corpus held hostile attack impunity indictment indictment for murder individuals Judge Cowen judgment judicial jurisdiction justice law of nations let to bail liability maintain matter McLeod ment military Minister murder necessary NEW-YORK objection offence officer opinion original particular party peace person position principle prisoner proper protect prove punishment question reason recognised reference refused regard relation responsible Review rule says side soldiers sovereign stands sufficient supposed Supreme Court territory thing tion trespass trial tribunals tried United unlawful Vattel vessel wars whilst
Σελίδα 15 - Lord Stowell (1 Dodson, 247) observes : " It is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers on the law of nations. A declaration of war by one country only, is not a mere challenge to be accepted or refused at pleasure by the other.
Σελίδα 25 - British authorities, being formally made to the Government of the United States, by Mr. Fox's note, the case assumes a decided aspect. The Government of the United States entertains no doubt that, after this avowal of the transaction, as a public transaction, authorized and undertaken by the British authorities, individuals concerned in it ought not, by the principles of public law, and the general usage of civilized States, to be holden personally responsible in the ordinary tribunals of law, for...
Σελίδα 21 - McLeod has been arrested, and is to be put upon his trial, was a transaction of a public character, planned and executed by persons duly empowered by her Majesty's colonial authorities to take any steps and to do any acts which might be necessary for the defence of her Majesty's territories, and for the protection of her Majesty's subjects; and that, consequently, those subjects of her Majesty who engaged in that transaction were performing an act of public duty, for which they cannot be made personally...
Σελίδα 25 - That an individual forming part of a public force, and acting under the authority of his government, is not to be held answerable as a private trespasser or malefactor, is a principle of public law, sanctioned by the usages of all civilized nations, and which the government of the U. States has no inclination to dispute.
Σελίδα 22 - In these circumstances, whatever part the sovereign would have thought proper to act if he had been consulted ; and whatever success the war undertaken without his order may have had ; it is left to the sovereign, whether he will ratify or condemn the act of his ministers. If he ratify it, this approbation renders the war solemn, by reflecting back, as it were, an authority upon it. ; so that it obliges the whole commonwealth.
Σελίδα 33 - If those departments which are entrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its rights of dominion over a country of which it is in possession, and which it claims under a treaty ; if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied.
Σελίδα 33 - The judiciary is not that department of the government, to which the assertion of its interests against foreign powers is confided; and its duty commonly is to decide upon individual rights, according to those principles which the political departments of the nation have established. If the course of the nation has been a plain one, its courts would hesitate to pronounce it erroneous.
Σελίδα 33 - Buenos Ayres has not yet been acknowledged as a sovereign independent government by the executive or legislature of the United States, and, therefore, is not entitled to have her ships of war recognized by our Courts as national ships. We have, in former cases, had occasion to express our opinion on this point. The government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed...
Σελίδα 33 - ... from the posture of neutrality. All captures made by each must be considered as having the same validity, and all the immunities which may be claimed by. public ships in our ports, under the law of nations, must be considered as equally the right of each, and, as such, must be recognized by our courts of justice, until Congress shall prescribe a different rule. This is the doctrine heretofore asserted by this court, and we see no reason to depart from it.
Σελίδα 33 - The government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed her determination to remain neutral between the parties. Each party is therefore deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war.