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The argument of the learned judge is founded upon the complex view, taken by him, of the relations of the state and general govern: ments to each other. He seems to view the state government as a third party in those foreign relations of which he treats. But the two jurisdictions can properly be viewed only as identical The general government, so far as its jurisdiction is called into action, supersedes entirely, and controls the state government. It also represents the state and acts on its behalf. Now it is a mistaken idea, that the government, in its diplomatic functions, can be distinguished from the government in its municipal functions, or in its administration of criminal law. Viewing then the state and the federal government as one, any compact, any concession or arrangement which it may make with a foreign power, respecting a transaction which is prima facie of a criminal nature, is entirely conclusive respecting the character of that transaction. If the state agrees, or is “ led to admit” that the transaction is lawful in respect to diplomatic considerations, the state being a party to all criminal prosecutions is estopped to treat the transaction as unlaw. ful. If the state agrees to regard the offence as no crime on the part of the foreign power which is the principal, shall it constitute a crime on the part of the subject who is the agent ?

If the admission on the part of the injured nation, that an aggression is lawful, is not attended as a consequence by the indemnity of the individuals concerned, because the crime against the state remains, then a treaty which declared that the aggression was the exercise of a lawful belligerent right, and provided expressly for the immunity of the armed force by which it was effected, might, for the same reason, be treated as a nullity by a court whose duty it is to give full effect to the treaty as the law of the land. The whole doctrine is monstrous and full of absurdities.

The very reverse of the rule acted upon by the supreme court of New York is the true rule on this subject. The jury and the court are only competent to try the naked question, whether those facts existed which constituted in point of law the crime alleged in the indictment. They are not competent to decide upon questions of diplomacy pending between the government of the United

States and a foreign power, because their decision cannot be a rule of action for the two governments. And it is quite possible that the discussion might end in a result entirely different from the decision of the court. The facts of the case as presented by the foreign power cannot be known. The case may be doubtful in principle, and the degree of necessity urged on behalf of the belligerent may be so uncertain as to be incapable of settlement but by treaty. Then the treaty, with all its conventional rules and principles, would be the rule of decision for the court, and not any preconcerted doctrines or notions of international law. It is a rule too that courts are not to question the principles established, as existing in the relations of their own government with foreign powers.

It would be impossible, therefore, for the court to weigh any of those diplomatic considerations which might serve to show the guilt or innocence of McLeod.

We, however, entertain the opinion that as the question is no longer pending in discussion, but the right of McLeod to a discharge has been established by the decision of the executive of the United States, a jury would be justified in a verdict of acquittal.

We do not differ from the learned judge, whose opinion we have considered, in the conclusion at which he arrived, on the imperfect disclosures upon an ex parte application. Our objec. tions are to that strain of reasoning in which he passes beyond the exigencies of the case, and decides, in effect, upon

the duties of the executive.

We now come to the real, practical difficulty in the case of McLeod. The executive of the United States has responded with great clearness to the demand of the British government that he ought to be discharged. The governor of the state has refused, however, to perform that duty, and unless the case can be removed, in some of its stages, into the tribunals of the federal government, so that a nolle prosequi can be entered by the requisi. tion of the president, an insuperable bar appears to be interposed to the execution of our obligations to the government of Great Britain.

We are disposed to sustain the doctrine of the sovereignty of the states, so far as may be consistent with the constitution of the United States, but as all foreign relations are entrusted to the general government, any attempt on the part of the executive of the states, to interfere with or embarrass those relations, is a gross violation of duty as well to the people of the states as to the federal government.

The acts of the governor of the state of New York cannot be properly regarded as emanating from the state sovereignty. He has sworn to maintain the constitution of the United States as well as of the state, and his imperative duty was to yield to the action of the federal government, within its appropriate functions.

The United States find themselves withheld from the fulfilment of their duties to a foreign power, by the refusal or neglect of a state functionary to perform his constitutional duties, and the question arises, whether the government has fully executed its obligations to that power, in using every means within its reach to procure the discharge of her subject, and we entertain the belief that those obligations are fulfilled.

There are many supposable cases, where it would be impossible for an independent and sovereign state, because of internal difficulties, to protect the subjects of a foreign dominion. Insurrection, rebellion, the occupation of a province by a rival claimant of the throne, as happened in England during the wars of the houses of York and Lancaster, may render actual protection impossible, and yet there may be no refusal of justice which would render a resort to war inevitable.

Whilst our diplomatic relations with Great Britain are conducted by that statesman, whose duty it has been to encounter the diffi. culties which attend this subject, we do not apprehend that the reputation of the country can be tarnished, or her justice brought in question.

He might, if he could have stooped to that low ambition, have won the plaudits of the unthinking by a different and less magnanimous line of diplomacy. But he saw the truth with clearness, and his nature was too noble to deny or conceal it. Alii multitudinis judicio feruntur, quæque majori parti pulcherrima videntur, ea maxime exoptant : nonnulli tamen, sive felicitate quadam, sive bonitate natura, rectam secuti sunt viam.

S. F. D.

2.- Argument of Robert J. Walker, Esq., before the Supreme

Court of the United States, on the Mississippi Slave Question, at January Term, 1841, involving the Power of Congress and of the states to prohibit the interstate Slave Trade. Philadelphia: John C. Clark, 1841.

The only real question, presented by the case above alluded to, was, whether a clause in the constitution of the state of Mississippi, declaring that the introduction of slaves therein as merchandise should be prohibited after a specified time, was operative by itself and without any legislative act; and, this question, we think, was rightly decided in the negative. Another question was also raised, namely, whether a law of the state, carrying out the constitutional provision, was void or not, as interfering with the powers of congress to regulate commerce. On this question, Justices Story, Thompson, Wayne, and M'Kinley, expressed their opinion in the negative, and Baldwin in the affirmative. Mr. Walker's argu ent in the affirmative of the first question and the negative of the other, though exceedingly full and able, does not satisfy us that the decision was wrong.

3.- A Catalogue of the Law Library of Harvard University in

Cambridge, Massachusetts. Second edition. Cambridge: Folsom, Wells, and Thurston. 1841.

The first edition of this catalogue was prepared and published in 1834, by our late co-editor, Mr. Sumner, then librarian of the law library attached to Harvard University. The second, which has been made necessary by the very great additions to the library since received, appears under the auspices of Mr. Woodward, the present librarian. These additions, consisting in part of dona. tions, and in part of purchases, have doubled the number of volumes contained in the first catalogue : thus affording gratifying

evidence of the interest with which the institution is regarded, as well as of the prosperous condition of its finances.

Having run over the titles of the works in this catalogue, with considerable attention, we are prepared to admit, that the law library of Harvard University is one of very great value; that in some few branches, it is far from incomplete; and that in the departments of English and American law, it may be regarded as nearly if not quite perfect; but we are wholly unable to agree with the librarian in his (as it seems to us) most extravagant estimate of its value and completeness, in any other branches than those of English and American law. Some of this gentleman's assertions are so extraordinary, that we cannot refrain from noticing them.

“ This library," says Mr. Woodward, is now “among the first in this country, or perhaps in any country, as a collection of general and municipal jurisprudence.” This may be true, só far as law libraries in the United States are concerned; but if Mr. Woodward imagines, that the law library of Cambridge stands among the first (even with a perhaps) “ in any country,” in the departments of general and municipal jurisprudence, we cannot help thinking, that by its proximity to himself, his field of vision has been sadly obscured if not altogether covered up. We shall not undertake to enumerate the law libraries of Europe, which are richer than that of Cambridge in works of general jurisprudence. If it were necessary to do so, in order to demonstrate the extravagance of Mr. Woodward's remark, we should begin with the Advocate's Library in Edinburgh, which contains eighty thousand volumes, of which ten thousand are works of a strictly juridical character. This library we should call “ among the first in any country," and, unless we judge by something besides numbers, the law library at Cambridge, with its two or three thousand volumes of works on general jurisprudence, can scarcely be put into the same class.

Another statement of Mr. Woodward's is, that the additions since 1834 “nearly complete the collection of European law, both British and continental, from the earliest times down to the

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