he had sounded his garrison, and found many brave soldiers among them, but not a single executioner. Suppose a prince should command a soldier to commit adultery, incest or perjury; the prince goes beyond his constitutional power; and has no more right to expect obedience than a corporal who should summarily issue his wariant for the execution of a soldier. Vid. Burl. L. of Nature, Vol. 1, pt. 2, ch. 11, § 8. Every political and civil power has its legal limits. The autocrat may indeed take the lives of his own subjects, for disobeying the most arbitrary commands; but even his behests cannot impart protection to the merest slave as against a foreign government. Public war itself has jurisdictional limits. Even that, in its pursuit after a flying enemy, is, we have seen, arrested by the line of a country at peace. Besides the limit which territory thus imposes, there are also, even in general war, other jurisdictional restraints, as there are in courts of justice. An order, emanating from one of the hostile sovereigns, will not jusitfy to the other every kind of perfidy. The case of spies has been already mentioned. An emissary sent into a camp with orders to corrupt the adverse general, or bribe the soldiery, would stand justified to his immediate sovereign. Vattel, b. 3, ch. 10, sec. 181; though even he could not legally punish a refusal. In respect to the enemy, the orders would be an obvious excess of jurisdiction. The emissaries sent by Sir Henry Clinton in 1781, to seduce the soldier of the Pennsylvania line, falling into the hands of the Americans, were condemned and immediately executed. 4 Marsh. Life of Wash. 366, 1st ed. Entering the adverse camp to receive the treacherous proposition of the general is an offence much more venial. It is even called lawful in every sense, as between the sovereign and employee. Vattel, b. 3, ch. 10, § 191. Yet, in the case of Major Andre, an order to do so was, as between the two hostile countries, held to be an excess of jurisdiction.

These cases are much stronger than any which can be supposed between nations at peace. In time of peace, every citizen, while within his own territory, has a double right to suppose himself secure; the legal inviolability of that territory, and the solemn pledge of the foreign sovereignty.

The distinction that an act valid as to one may be void as to another, is entirely familiar. A man who orders another to commit a trespass, or approves of a trespass already committed for his benefit, may be found to protect his servant, while it would take nothing from the liability of the servant to the party injured. As to him, it could merely have the effect of adding another defendant, who might be made jointly or severally liable with the actual wrong-doer. A case in point is mentioned by Vattel, b. 3, ch. 2, § 15. If one sovereign order his recruiting officer to make enlistments in the dominion of another, in time of peace between them, the officer shall be hanged notwithstanding the order, and war may also be declared against the offending sovereign. Vid. a like instance id. b. 1, ch. 6, § 75.

What is the most legal effect of a foreign sovereign, approving of the crime his subject committed in a neighboring territory? The approval, as we have already in part seen, can take nothing from the criminality of the principal offender. Whatever obligation his nation may be under to save him harmless, this can be absolutely done only on the condition that he confine himself within her territory. Vattel, b. 2 ch, 6, § 74. Then, by refusing to make satisfaction, to furnish, or to deliver him up, on demand from the injured country, or by approving the offence, the nation, says Vattel, becomes an accomplice, id. § 76. Blackstone says, an accomplice or abettor. 4 Com. 68; and Rutherford, still more nearly in the language of the English law, an accessory after the fact, b. 2, ch. 9, § 12. No book supposes that such an act merges the original offence, or renders it imputable to the nation alore. The only exception lies in the case of a crime committed by an ambassador. Not because he is guiltless, but by reason of the necessity that he should be privileged, and the extra-territorial character which the law of nations has, therefore, attached to his person.Hence, say the books, he can be proceeded against no otherwise than by a complaint to his own nation, which will make itself a party on his crime, if it refuse either to punish him

by its authority or deliver him up to be punished by the of fended nation. Ruth. b. 2, ch. 9, § 20.

Independently of this exception, therefore, Rutherford insists, with entire accuracy, that, "as far as we concur in what another man does, so far, the act is our own; and the effects of it are chargeable on us as well as upon him."— Ruth. b. 1. ch. 17, § 6. A nation is but a moral entity; and, in the nature of things, can no more wipe out the offence of another by adopting it, than could a natural person. And the learned writer just cited accordingly treats both cases as standing on the same principle. B. 2, ch. 9, § 12. "Nothing is more usual," says Puffendorf, "than that every particular accomplice in a crime, be made to suffer all that the law infiicts." B. 3, ch. 1, § 5. Vattel says of such a case, b. 2, ch. 6, § 75, "If the offended State have the of fenders in her power, she may, without scruple, punish him. Again, if he have escaped and returned to his own country, he may apply for justice to his sovereign, who ought, under some circumstances, to deliver him up-id. § 76. Again, he says, she may take satisfaction for the offence herself when she meets with the delinquent in her own territories." B. 4, ch. 4, § 52. I before cited two instances in which positive orders by his sovereign to commit a crime are distinctly held to render both the nation and its subjects obnoxious to punishment. Vattel, b. 3, ch. 2, § 15; id. b. 1, ch. 6, § 75; vid. also 1 Burl. pt. 2, ch. 11, § 10. Was it ever suggested by any one before the case of McLeod arose, that the approval by a monarch should oust civil jurisdiction or even so much as mitigate the criminal offence; nay, that the coalition of great power with great crime does not render it more dangerous, and therefore more worthy of punishment under every law by which the perpetrators can be reached!

Could approbation and avowal have saved the unhappy Mary, Queen of Scots, where would have been the civil juof an attempt by Mary to dethrone and assassinate the Bririsdiction of Elizabeth's commissioners? The very charge of one crowned head at least. Could the criminal have been tish Queen implied the approbation and active concurrence saved by any such considerations, the enterprise might truly leading governments of Catholic Europe. have been avowed as one which had been planned by the

diction, even in England, had openly approved it under his The Pope then, having at least some pretensions to jurisseal. The Spanish ambassador at Paris was a party relied upon to follow up the event with an invasion. Would James, the son of the accused, have hesitated to join in the avowal, could he have been instrumental in saving the life of his mother? Yet the principle was not thought of in the whole course of that extraordinary affair. Mary openly avowed her general treason as a measure of defence and protection to herself, though she denied all participation in the plot to assassinate Elizabeth. Yet the only ground taken was, the technical one (nor the less valid because technical) that the accused was personally privileged as a monarch, and could not be tried under the English law which required a jury composed of her peers.

It was added that she came into the kingdom under the law of nations, and had enjoyed no protection from the English law, having been continually kept as a prisoner. Vide the case stated and examined in the right of international law, 2 Ward's L. of Nations, 564. No one pretended that her approbation, or that of a thousand monarchs could have reflected any degree of exemption from judicial cognizance, upon the alien servants in her employment.

Such a principle would have filled England with an army in time of peace, disguised as Jesuits; for the bigotry of monarchs would at this day, have led them to avow any system of pernicious espionage which could have served the purposes of the Pope by executing his Bull of excommunication against Elizabeth.

Canada again being disturbed, and our citizens aiding the revolt by boats, provisions, or money, the purposes of England would certainly require such conduct to be put down at all events. Adopt the principle that she may by avowal protect her soldiery who steal upon our citizens at midnight, from all punishment at the common law, and before you

could get even a remonstrance from Washington, your whole frontier might be made a tabula raza. No. Before England can lawfully send a single soldier for hostile purposes she must assume the responsibility of a public war.

Her own interests demanding the application of the rule, she perfectly understands its force. What regard have her courts ever paid to the voice of the public authority on this side of the line, when it sought to cover even territory to which the United States denies her title? The mere act of taking a census in the disputed territory under the authority of Maine, was severely punished by the English municipal magistrates. Had a posse of constables or a company of militia bearing muskets been sent to aid the censor, in what book or in what usage could she have found that this would divest her courts of jurisdiction, and put the cabinet of St. James to a remedy by remonstrance of war? Had the posse been arrested by her sheriff, and in mere defence had killed him, and this nation had, after some two or three years, avowed the act, would she have thought of conceding that in the meantime, all power of her courts over the homicides had been suspended, or finally withdrawn?

But it is said of the case at bar, here is more than a mere approval by the adverse government; that an explanation has been demanded by the Secretary of State, and the British Ambassador, has insisted on McLeod's release, and counsel claim for the joint diplomacy of the United States and England some such effect upon the power of this court as a certiorari from us would have upon a county court of general sessions. It was spoken of as incompatible with a judicial proceeding against McLeod in this State; as a suit actually pending between the two nations, wherein the action of the general government comes in collision with and supersedes our own.

To such an objection the answer is quite obvious. Diplo macy is not a judicial executive function: and the objection would come with the same force whether it were urged against proceeding in a court of this State, or of the United States. Whether an actual exertion of the treaty-making power, by the President and Senate, or any power delegated to Congress by the Federal Constitution, would work the consequences contended for, we are not called upon to inquire; whether the Executive of the nation, (supposing the case to belong to the national court,) or the Executive of this State might not pardon the prisoner, or direct a nolle prosequi to be entered, are considerations with which we have nothing to do.

The Executive power is a constitutional department in this, as in every well organized government, entirely distinct from the judicial. And that would be so, were the National Government blotted out, and the State of New York left to take its place as an independent nation.

fence as no breach of treaty which the judiciary would be obliged to punish as a breach of international law. Suppose some of our citizens to attack the British power in Canada, and the Queen's soldiers to follow the heat of repelling them by crossing the line and arresting the offenders, doing no damage to any one not actually engaged in the conflict. The line being absolutely impassable in law for hostile purposes, the arrest on this side would be a technical false imprisonment, for which we should be bound to convict the soldiers, if arrested here; while the executive power might overlook the intrusion as an accidental and innocent violation of territory. Vattel, b. 4, ch. 4, § 43.

I forbear now to notice particularly some of the legal passages and cases which were referred to by the prisoner's counsel in the course of his argument; not for the reason that I have omitted to examine them, but because I consider them inapplicable under the views I have felt it my duty to take of the prisoner's case. They were principally of three classes: First, passages from books on the law of nations as to what is public war and the protection due to soldiers while engaged in the prosecution of such a war by their sovereign against a public enemy; secondly, the general obligations of obedience as between him and his sovereign, whether in peace or war; and thirdly, cases from our own books relative to the conflicting power of the General and State Governments. The case of Elphinstone v. Bedreechund, 1 Knapp's Rep. 316, related to the breach of an actual military capitulation entered into during an acknowledged public war between England and one of the petty sovereignties of India.

In considering the question of jurisdiction, I have also forborne to notice that branch of the affidavit which sets up an alibi. McLeod's counsel very properly omitted to insist on it as at all strengthening the claim of privilege. Indeed he said the clause was put in merely by way of potestando. If it was inserted with the intention of having it taken as true upon this motion, that alone would destroy all pretence for any objection to our jurisdiction.

His surrender was demanded upon the hypothesis that he was acting under public authority. If in truth he was not, or was not acting at all, he enjoys, according to his own concession no greater privilege than any other man. The cssential circumstance relied on as going to the question of jurisdiction, turns out to be fictitious; and the argument must be that we have no power to try the question of alibi, On that and every other lawful ground of defence he will be heard by counsel on his trial.

It is proper to add, that if the matters urged in argument could have any legal effect in favor of the prisoner, I should feel entirely clear that they would be of a nature available before the jury only. And that according to the settled rules of proceeding on Habeas Corpus, we should have no power ever to consider them as a ground for discharging the prisoner. I took occasion to show in the outset that in no view can the evidence for the prosecution or the defence be here examined, independently of the question of jurisdiction, and I entertain no doubt that whenever an indictment for a murder committed within our territory is found, and the accused is arrested, these circumstances give complete jurisdiction.

I know it is stated by the English books, that even in a case of mixed war, viz: a hostile invasion of England by private persons, the common law courts have not jurisdiction. It was so held in Perken Warbeck's case. He was punish

Not only are our constitutions entirely explicit in leaving the trial of crimes exclusively in the hands of the judiciary; but neither in the nature of things, nor in sound policy, can it be confined to the Executive power. That can never act upon the individual offender; but only by requisition on the foreign government; and in the instances before us, it has no power even to inquire whether it be true that McLeod has personally violated the criminal laws of this State. It has charge of the question in its national aspect only. It must rely on accidental information and may place the whole question on diplomatic considerations. These may be entirely wide either of the fact or the law as it stands between this State and the accused. The whole may turn on ques-ed with death by sentence of the constable and marshal, who tions of national honor, national strength, the comparative it is said in Calvin's case, 7 Co. Rep. 11, 12, had exclusive value of national intercourse, or even a point of etiquette. jurisdiction. Dy. 145, a S. P. 1 Curw. Hawk. ch. 2, § 1, Upon the principle contended for, every accusation which p 9. But that rests on a distribution of judicial power has been drawn in question by the executive power of two entirely unknown to this state or this nation. The court of nations, can be adjusted by negotiation or war only. The the constable and marshal seems to have had an ancient individual accused must go free, no matter to what extent right, not very well defined by the common law, of trying his case may have been misapprehended by either power. all military offences by the stat. R. 2, ch. 2 (vide 2 Pick St. No matter how criminal he may have been, if his country, at large. p. 310,) which was passed to settle conflicting claims though acting on false representations of the case, may have of jurisdiction between that and the ordinary courts, vide been led to approve of the transaction and negotiate con- also 3 Inst. 48. The whole is obviously inapplicable to cerning it, the demands of criminal justice are at an end. this country; and is pretty much obsolete in England. It Under circumstances the executive power might in the never can have been held in England or any country, that exercise of its discretion, be bound to disregard a venial of where a common law Court is proceeding on indictment for VOL. V.-6

ports, and to foreign ports; to advertise for proposals for the establishment of such lines as he may deem most important and practicable, and to report to this House at the next session of Congress.

Official.

DEPARTMENT OF STATE, July 12, 1841. Information has been officially received from the Government of Venezuela of the following changes in the tariff of duties on exports and imports of that Republic, which changes are to take effect from and after the 1st day of July. 1. All duties on exports from the ports of the Republic

cease.

2. The following articles will hereafter be admitted into those ports free from import duty:

Bricks, bran, moulds for sugar mills, living animals of all kinds, ploughs, pease, rice, oats, scarfs for the use of churches, drills, casks, and barrels, pumps of wood or iron for irrigation, coal, carts or wagons, wheelbarrows, surplices and other garments for priests, collection of books of music or drawings and paper prepared for music or drawings, columns of all kinds for buildings, iron cooking stoves, jackets, staves, juniper berries, baggage of passengers, statues of all sorts, copper or iron sugar or still boilers, Dutch ovens, beans, engravings, mathematical or other scientific instruments, boats of iron or wood, set up or in pieces, lentils, parts of sugar mills, printed books and maps, files, Indian corn, apples, cotton gins, machines for dredging, mining, spinning, weaving, shelling corn, steam engines, gold and silver, pans of copper, brass, or zinc, potatoes, printing paper, carriage and cart wheels, seeds, brushes.

3. The duties on the following articles have been diminished, and will in future be thus:

To the Judges of the Court of General Sessions in the
City and County of Philadelphia.

In the matter of the Petition of the Pennsylvania

Hall Association.

1841, "to ascertain and report the amount of the loss sustained in consequence of a mob or riot," which resulted in the destruction of the Pennsylvania Hall; and also, whether the owners of the Hall had any immediate or active participation in said mob or riot." The jury being organized, immediately entered upon the discharge of their duty. From that time they met once or twice in every week, for the purpose of examining written or printed evidence, and witnesses, under oath or affirmation, and hearing the arguments of counsel, which were not concluded until the 21st of June. The jury, the five professional gentlemen engaged and the persons most immediately interested, were regular in their attendance, and great care was taken in sifting and recording the evidence. The jury entered upon the discharge of their duty with a deep conviction of its importance, which conviction has been their constant attendant in every stage of their proceedings.

The phraseology of the act of Assembly, under which this jury has been qualified has been found peculiar and somewhat embarrassing. It appears to them that they are not authorized to assess damages, but simply to report the amount of loss. Nothing seems left to their discretion. They are not allowed to modify or compromise, or even to express an opinion of damages, if any, which should be paid by the county to the owners of the property destroyed. It is their opinion that their duty is, by the law under which they have been appointed, narrowed down to ascertaining and reporting to the Court, the amount of the loss sustained, and whether the owners had any immediate or active participation in the mob, or riot, which caused it.

After the mass of evidence, oral, written and printed, which has been heard, and the length of time consumed in sifting and examining it by able and eloquent counsel, the Court may expect and desire that some of the leading facts connected with the destruction of the Pennsylvania Hall should be submitted. In this belief, the jury make the fol lowing statements:

The Pennsylvania Hall was erected by the subscriptions of Societies and individuals. Those who thus placed their funds in a common stock for a common purpose, called themselves" the Pennsylvania Hall Association." They adopted articles for their government, and elected Managers to carry out their views, prepare certificates of stock, superintend the erection of a Hall, rent it, and receive the rents. The Managers were restricted by the Stockholders from renting the saloon, "for any object subversive of good morals, or in such manner as should not afford reasonable and frequent opportunities for the discussion of the subject of Slavery," especial care being taken "in a form to be devised by counsel learned in the law," that the Stockholders should "not personally, or in this property, be liable for any of the debts, contracts, or engagements, entered into touching or concerning the business or operations of the Association." paid in money, or what amount of money was paid, or how it was expended, has not been satisfactorily made known to the Jury.

Who

County, and a copy of it furnished to each of them. It is proved, by that and other evidence, that from the first to the last meeting in Pennsylvania Hall, the attendants were numerous both inside and outside thereof. A large proportion of the people assembled, particularly of those around the Hall, were colored people, and they were indiscriminately, male and female, intermixed with the whites.

The Pennsylvania Hall was opened on the 14th of May, 1833. A volume purporting to contain an account of “all that was said and done" in it, from that time to the night of the 17th of May, when it was destroyed by fire, has been The jury about to report, cannot forbear to congratulate published by authority of the Managers. That volume has the Court, and the public, on the prospect of a final settle-been given in evidence to the jury by the Counsel for the ment of the much vexed question of the Pennsylvania Hall. For various reasons, there has been a very general indisposition throughout the community to take any part in the measures necessary to produce such a result, as has been evidenced by the number of jurors that the Court has been required to appoint. But one of the present jury men was originally appointed to that station. He, and those with whom he has acted, were induced to do so from a strong sense of duty, and they have given to the consideration of the subject submitted to them, all the time and attention that appeared to be demanded by the importance of its character, with a view to be enabled, fairly, to ascertain and report as by the law required.

This jury, appointed by the Court, in the above mentioned case, were sworn, or affirmed, on the 1st of February,

During the period the Hall was opened, there was a more public and general intermixture of the white and colored population; more parade of familiarity between persons of different sexes and colors, and the better dressed portion of both white and colored people, than had ever before, or has ever since, been exhibited in the city of Philadelphia.

The effect upon the public mind and the public feeling was more than commensurate with these displays, because,