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has him in her power," "she may without scruple bring him to justice and punish him. If he has escaped, and returned to his own country, she ought to apply to his sovereign to have justice done." If the case of an act having been approved and ratified (which is that of Captain Drew's enterprise against the Caroline), is the case treated in the third paragraph of the above extract, then it is the case treated in the second period of it as well as in the first; but will any man of common sense pretend, that after a sovereign had approved and ratified an act, Vattel meant to advise an application to him "to have justice done" upon the actors?
This passage, which it seems extraordinary that any reader should misunderstand, and which contains so express a contradiction of the doctrine of Mr. Benton and Mr. Buchanan, was the only one relied on by them in argument in the Senate. It also figures for the same purpose in the opinion of Judge Cowen, who further refers to Blackstone, (Book iv. ch. 5,) and Rutherforth (Book ii. chap. 2. [an error for 9.] § 12.), in which passages, a nation neglecting to punish the offence of a citizen, which it has not authorized, is called an accessory, an accomplice, and abettor, of his crime; another passage of the latter writer (Book ii. chap 9. § 20.) which treats of the privileges of ambassadors, and in which nothing more to the purpose is to be found than that an ambassador 66 can be proceeded against no otherwise than by a complaint to his own nation, which will make itself a party in his crime, if it refuses either to punish him by its own authority, or to deliver him up to be punished by the offended nation; Rutherforth, again, (Book i. chap. 17. § 6.) and to Burlamaqui, ("Natural Law," Part 2. chap. 11. § 10.) where the subject under discussion is not any relations of states to individuals, but the relations of individuals who become accomplices in each others' acts; and to Vattel, (Book iv. chap. 4. § 52.) where the case treated is so far from being in point, that in an express reference to the important passage above quoted from the same writer, it is stated to be a different one from the case therein discussed, and to be that of "refractory subjects," "who commit acts of hostility without being able to produce a commission from their sovereign.
But, while we are clear respecting the validity of the principle asserted by the British Minister, and acquiesced in by the American Secretary of State, we are equally satisfied of
the correctness of the decision of the New York court, in refusing to discharge McLeod upon habeas corpus. Said Judge Cowen;
"That he acted in right of a nation, or under public authority, is no more than matter of justification. It is like the case mentioned in Foster, 265, the public execution of malefactors; and the jury must judge whether the authority may not have been exceeded. But more; where either public or mixed war is alleged in mitigation, either allegation may be fictitious, and it shall be put to the jury, on the proper evidence, whether it existed or not.”
We have argued that the principle of personal impunity for doing a soldier's duty, is a sound one. But whether the facts are such as to bring McLeod under its shield, is another question, and one which can only be solved when he shall have been put upon his trial. A legal principle, however good, protects only those who come within its conditions. A prisoner of war, keeping within his prerogatives as such, is secure; but if on his way homewards he steps into a house, and butchers its master, he shall be tried and executed. A public military expedition will protect its agents; but it will not protect any one, who, feigning himself engaged in it, shall have taken advantage of the disorder of the time to gratify a private enmity. Lord Hale appears to intimate, ("Pleas of the Crown," i. 565.) that plunder or robbery by an enemy, in time of war, may be burglary, if not done in the regular prosecution of the war, but " by those that are not in hostility one to another."* McLeod claims the benefit of a legal principle, which has reference to a certain class of acts, done under a certain set of circumstances. The principle is a good one, and let him have the benefit of it, if he ought. But who knows whether he ought or not? Who knows what acts he did, and under what circumstances? Who can know, till a jury has made inquisition? For any thing that the New York court had learned to the contrary,
Burlamaqui, upon this point, after adverting to the difficulty there is in "determining precisely how far it is proper to extend acts of hostility even in the most legitimate wars, in defence of our persons, or for the reparation of damages, or for obtaining caution for the future," goes on to say; "Those who, in a just and solemn war, have pushed slaughter and pillage beyond what the law of nature permits, are not generally looked upon as murderers or robbers, nor punished as such. The custom of nations is to leave this point to the conscience of the persons engaged in war, rather than
when McLeod was brought before them on habeas corpus,· for any thing that it knows yet, or can know before the trial, he was invited home to breakfast by Durfee the morning after the fray, and shot him across the table. The British government claims that he shall immediately have the benefit of a rule of public law, and yet it does not itself pretend to be informed whether the facts are such as properly to bring him under its protection. So far from it, that it is rather of opinion that the facts are not such. "Her Majesty's government," says Mr. Fox, in his letter of March 12th, "have the strongest reasons for being convinced that Mr. McLeod was not in fact engaged in that transaction." That, of the truth of which "her Majesty's government have the strongest reasons for being convinced," may very likely turn out to be true. If it does turn out to be true, then what McLeod did on that night, whether more or less, has nothing to do with the legal principle, so strenuously urged. And at any rate, until it turns out to be false, the American court cannot safely proceed to apply a principle, which it does not know, and even the British government does not suppose, to be applicable. It seems that we are not here reasoning on a mere abstract possibility of McLeod's having done a deed of blood, without the justification put forward for him; for, according to Mr. Choate,
"It has been said, in some of the discussions of this subject, although not here, that McLeod left the Caroline after the whole object of the enterprise had been accomplished, and committed an unnecessary, and distinct, and malicious murder on shore. I can say only to this, that no such fact forms any part of the basis of the opinion of the Secretary. He had either never heard of it, or he disbelieved it, or he assumed that the courts of law or the Attorney-General would allow its proper influence to a discriminating circumstance so important." Speech, p. 4.
Now if this has been said, or has been liable, from the circumstances, to be said, the court could not proceed with too much caution. Until it has been ascertained that the putting involve themselves in troublesome broils, by taking upon them to condemn either party (Part iv. chap. 5. §14). This is well said; but in the case of mere sudden and transient hostilities, the reason for this connivance at acts of individual malice and wantonness not existing, it seems to follow that they remain to be judged upon their demerits, if the injured party should esteem it worth the while.
to death of Durfee by the hand of McLeod was an act done in furtherance of the objects for which the expedition from the Canada side was set on foot, it is to no purpose to inquire how far the colonial authority could extend protection. No matter what immunity its orders might confer, provided the thing done proves to be altogether different from what it ordered.
We are therefore decidedly of the opinion that the case cannot be properly disposed of without going to a jury. In the uncertainty, necessarily existing at this stage of the business, concerning the nature of the act done, we are not sure that a nolle prosequi would be a right and prudent measure. At all events we entertain no doubt respecting the proper action of the Court on the writ of habeas corpus. When it has been proved, if it should be, that McLeod put Durfee to death, and that he did it in the execution of a military enterprise set on foot by his lawful superiors, then his counsel will argue that it was justifiable homicide agreeably to the doctrine. we have been maintaining, and the jury, being so instructed, as we doubt not they will be, by the court, will pronounce a verdict of acquittal. Should he, on the other hand, which we cannot imagine to be probable, be convicted through erroneous instruction concerning the law, the point will be reserved, and the matter will remain to be set right by the court of ultimate appeal.*
We have argued in defence of the course pursued by the New York court in remanding McLeod for trial, not only because we believe it to be correct, but because it intimately concerns the peaceful relations between the two countries that it should be seen to be so. If he ought not to be tried, then, in refusing his application for a discharge, a great wrong has been done to him, and to England whose subject he is, which country will accordingly be justified in resorting to the most energetic measures of redress. If, on the contrary, as we undoubtingly believe, no wrong has as yet been done, England will have to see that it is so, and to own that
* Under an indictment for murder, the plea of self-defence is as good as the best to procure an acquittal, provided the fact can be made out. But it would not do to discharge a person so indicted, on a writ of habeas corpus, in consideration of his affidavit of having been compelled to defend himself, even if the statement were further confirmed by common report and universal belief. So in the case of McLeod. If he killed Durfee in the discharge of a soldier's duty, he ought to go harmless. But the fact that the homicide was committed under that circumstance of justification must be shown, and the burden of proof is on the accused.
as yet she has no cause of complaint. We only regret, and that we do right seriously, that the New York court has compromised its own impartiality, by arguing and adjudging that decisive question, which, on its own showing, belongs to a later stage of the proceedings.
We have no great anxiety about the case of McLeod. The worst of it is over, as soon as the parties begin to understand one another. If he killed Durfee in the discharge of a soldier's duty, however unjustifiable the proceeding on the part of his superiors, we have no fear that he will suffer for it. If he killed him under other circumstances, he ought to suffer, and the English government cannot pretend to have cause of dissatisfaction. Our apprehensions are not upon that score, nor can we persuade ourselves that that government feels all the uneasiness which it expresses. Its ingenious diplomacy well knows how to present another issue, in order to keep out of view the true one. The real difficulty will begin when McLeod is at large; for then there will be no longer an excuse for neglecting to look at the great question of the commanded and avowed outrage upon the American territory. No nation, which means to keep the peace with its neighbours, can do such an act without reasons of urgent necessity, showing the act to be consistent with friendly dispositions on its own part, and with security for the future on the other. No nation which means to hold its own, and to extend protection to its citizens, none which has not made up its mind to become a by-word and a prey, can think of sitting down quietly with such an assault unexcused or unatoned for. Before the matter can be disposed of, that strong case is to be made out, which Mr. Webster, in his letter of the 24th of April, has laid before the British minister.
'It will be for her Majesty's government to show upon what state of facts and what rules of national law the destruction of the Caroline is to be defended. It will be for that government to show a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation. It will be for it to show, also, that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act justified by the necessity of self-defence must be limited by that necessity, and kept clearly within it. It must be shown that admonition or remonstrance to the persons on board the Caroline was impracticable, or would have been unavailing; it must be