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II. 1841. [13 Sheets, Periodical,] • :ji."' I This work is published and sent through the mail, in monthly numbers of 64 pages, — making two volumes a year, of 384 pages each, at $1 the volume, or $2 a year, paya- si£ IN ADVAMCE. — AH communications must be franked, or Postage Paid. O' Address Gould's Reporter, Washington City, D. C. T' ' / Entered according to Act of Congress, in the year 1841, by MARCUS T. C. GOULD, in the Clerk's Office of the District Ccrurt for the Western District of Pennsylvania. 11868 o f.\ STENOGRAPHIC REPORTER. Vol. II 1S41. Nos., I, -J, 3, 4, ■'), 0. PROSPECTUS, TO THE FIRST VOLUME OK A MONTHLY PERIODICAL, PUBLISIIEU IN WASHINGTON CITY, D. C. TIic Subscriber, formerly well known to llic American public by hi» numerous Reports of Convention debates, Legislative debates, Sermons, Trials, Orations, Addresses, Lectures, &c., in tlie principal cities of tlu- United States — as the author of a work on stenography, aiid as editor and publisher of several successful periodical works in the city of Philadelphia — having resumed his Stenographic profession, respectfully announces his intention to publish a series of periodical numbers and volumes, to em- brace important Trials for Treason, Murder, Highway Robbery, Mail Robbery, Conspiracy, Riot, Arson, Burglary, Seduction, <^c. Also, mis. cellaneous speeches of American Statesmen, in Congress, and other Legis- lative bodies ; Lawyers and Judges in the Supreme Court of the United States, and individual Slates ; political addresses, orations, lectures upon arts, sciences, literature and morals. Appropriate materials for such a publication have been accumulated, ill iliort hand, during the last twenty years, from the lips of eminent /Vmcrican orators in fifteen ditlcrent States of the Union. From these materials about 10,000 pages have been published in book and pamphlet form, at ditferent times, and in various places ; but, though liberally patro- nised, in particular States and distri(;ts, no attempt was made to give them a more general spread — they were isolated items, without connection, uni- formity, or order, and are now generally out of print, and not easily ob- tained even for reference, however desirable. At the earnest solicitation of numerous professional gentlemen, and many distinguished citizens of the United States, the subscriber has been induced to enter upon the plan above proposed ; and, as he has hitherto enjoyed the confidtincc and received tbe countenance and favor, of Legis latures, Courts, and public speakers, it will be his aim to deserve their friendly support in future. To select, revise, arrange, and publish, in a uniform series of numbers and volumes, the better portions of the matter alluded to, and to add from time to time new matter of a similar character, when recommended by its merits, and called for by the public, are prominent objects of this pub- Ci (JOULl) S REPORTER. lioation ; nor will nmltor of this cliuructcr be rcjiictcd. tlioiigli oocusioniilly rcpDiU'd hy itthers, or ('iiriiisii(;il liy speakers tlicnisclvcs. Aiiutlirr (>l))<;ct is, tn secure u more general diHusion, liy ii. ri'^ular am! clieap mock' of distribiitioii, llirough the mail, to subscrihers at a distance •Vom the plare of publication, and from the cities, legislative bodies, courts, und other jiiaces, where such materials are ciiiefly furnished ; while those residing in or near the larger cities and towns, may he regularly sup[die(l with sinlgc numbers, or pc^rlect volumes, through \.\w hands of booksellers^ ;ig(!nts, or carriers. The uork will be |)riiitcd upon cxceller.* paper and with new type. The monthly numbers will contain not less than 04 octavo pages each, with H handsome; printed cover. Price, single, to non-subscribers, on delivery, twenty-live cents. Each volume will consist of at least numbers, or ;iy4 pag(\s, with a title page and index ; price, to subscribers who have; their numbers regularly sent through the mail. One Dollar a volume, or Two Dollars a year, payable in advance. If delivered in cities und towns, not in numbers, but at the close of each volume, One Dollar a volume on delivery. When an important Irid/, or other subject, is exciting an intense interest, and is deemed of suHicient importance to authorize its imntcdialc puh/icution, I'lUirc, and in comiectioii, it will be thus published and distriituled at once, in a single pamphlet, though constituting an equivalent for several single numbers of the promised series — for example : The /ate Trial of the Celehrated Mail Rohher, Dr. John F. Braddee, m the United States Circuit Coiu't at Pittsburg, for a succession oi daring and extensive depredations upon the United States Mails, at Uniontown, Penn., having passed through a large pamphlet edition in the course of a few days, without supplying a tenth jjart of the probable demand throughout the Country, is thought deserving of a place at the commencement of this publication ; and will accordingly be revised and republished, iimnediatehj, in a style not derogatory to its importance, and the distinguished legal talents displayed on the occasion. It will make about 190 pages, or equal to 3 regular numbers of the periodical, and be ready for delivery on the 15th September instant, (1841) at Fifty cents — it may be considered as the half part of Volume 1 — of which. The second, it is expected, will embrace the entire Trial of Alex.^npeii McLeod — should it take place as now proposed ; and arrangements art; already made for publishing it, immediately after the close of the Trial, so that it may be distributed through the mails, and otherwise, at once, to all who have subscribed. The character and importance of this Trial, ixnd the interest which it has excited, arc sulficiently known to all, nor is it probable that public anxiety will at all abate, till the subject is definitely disposed of by the legitimate authorities and ultimate tribunal. In relation to the case of Dr. Braddee, a lew words of explanation are necessary. The safety of the United States Mails is a matter of interest to every individual throughout the Country — it strikes at the root of all our varied interests, for the affairs of (jloverninent could scarcely be carried on a week without the mails. The case of Braddee is with jJt a parallel. He was enjoying a Quack Medical Practice worth from ^.'jjOuO to $15,000 a year. He was sus- pected, arrested, his premises searched, and no less than ffleen mail bags were found, cut open, rifled, and secreted under an out- building. Money i if til ai 01 h!. o (' 1' Ct t; #• MCLEOD S TniAL. ^ aiul utlur property w(Te inissiiijr from tin* inaiLs, uUtut this timo, to the aiiKMint of liiilt' a million of cioljars, of wiiioii i4iil(),r>()0 vverf found in Hruddci'.s liay-iiu)\v, and other items paid away In him, were nvovered, though niiich is yet uiis.sing. lie was hcdd to hail in tin; sun> of iSl'iO.OOO, uud continued at large from January till May, HI I. When his trial came on, he chartered a sleamhoat, ami hroiigiit tocuiu't, more than one Inindred witn«\ss's, a distanci; of si-veiity miles, triumphantly hoasting orHiis way, that he had those who would siirar him out (if lirll, if already there^ — he hail also secured tlu; services of no less tiian seven lawyers. lie was ni'jt, on the part of the prosecution, hy about an equal nuinlx r of witnesses, siuumoned hy the United ti^tatcs from St. LouiH, Louisvilh', Cincinnati, NViiceliiig, Niw York, Hoston, Washington City, and other places ; eighteen mutilated mail hags were exhibited upon the llcjor of the court-rooni, I'liiil thousands of dollars of his stolen treasure placed upon tiie table. The mail l»ags and portions of the money were identified, the steal ing proven, guilt established, and sentence pronounced — notwithstanding, extensive subornation had been resorted to, and the most alarrr.ing perjur> perpetrated in his behalf. The trial was conducted with great legal ability — the s|)eechcs of council and the charge of .Fudge Baldwin occupied serciitrcn Iidki's, and the whole are published in the language of the speakers. It is thought that this Trial, at least, should be in the bands of ever} lawyer, every mail-contractor, every stagt^-driver, and every post-mast(!r in the UnitcMJ States — as the report of McLpo(Vs case, doubtless wi/l be, in the hands of every politician. All Post Maslcrs arc respectfully requested to act as agents for thi« publication — to obtain subscriptions, and make reunttances for tlieir re- spective neighborhoods. Every sixth copy of the work will be allowed for obtaining subscribers and forwarding the money — that is, ii five copies are taken and paid for, the sixtii will be free ; or a cash commission of 20 per cent, will bt; allowed on all sunis transmitted by agents. MARCUS T. C. GOULD. Washingtox Crrv, D. C, Skpt. 1841. M N. B. — All communications, by mail, must ■ free from postage, and addressed Goulu's Rki'OHTkk, Washington Citv, '). C. ADVERTISEMENT |i Altlioiiffh it is well known that mimfrouH Reports of thi' trial of At.F.XANnEi; Mcliioii iiave ai»pciiri'(l, iti tlio coliiimis of tin,' ii('\vs|)aj)i'rs and in i)am|)hlt.'t foriii, it is not ho well known that, owing to phj>^i(;al impossibilities, these re- ports wi're, in many respects, necessarily abridged, and less perti-ct than if i)ro- «lnced under other circiuiisfances. In tlu! first place' the language of a public P])eaker, one hour, if recorded in short hand, and written out ni long hatid tor the press, retpiires from tiiur to tivo hours' labor, and makes about half a (|uire of newspa])er manuscript; aiul as th(! court at Utica was in si^shion from 10 to I'J hours each day, for *i days, it was out of the jjower of any one man to i)re|)are the matter of eacli day, for the first evening or morning mail, to New N'ork. Tiie speeches of one single day, 11 hours, furnished matter l(:)r more than HO newspaper co- hnmis, to coj)y which was the labor of at least a week. How, then, wiiliout much jirevious arrangement and concert of action, for the division of labor, could a full and perfect report bo producid, as the trial proceeded ? All was done, tliat could he ilone, and the result was placed Im;- fore the public ; but a work still remained, and that work is here i)resfnted. To lessen the labor of writing out, personally, the whole of what was ex- jiected to pass during this important trial, an arrangement was made, by the hubscriber, with two or three other reporters, to exchange an occasional speech rejjorted by himself, for an e(piivalent, from their notes of testimony. Though this arrangement was ]iin-sued to some small extent, yet the under- signed failed not to record the greater i)art of the testimony, and the whole of every .speech and the charge of the court, with the exception of one hour out of seventeen ; for the supplying of which, and other favors, he is indebted to the politeness of Messrs. Sutton, and Fowler, stenographers. Portions of the testimony having been furnished as above intimated, will ac- count for the occasional change from first to third person, and rice versa, as well as for the introduction of question and answer in some parts, while in other parts tlie (juestions are omitted. This applies chiefly to small portions of the testimony, and to some brief di.scussions between the counsel on oppo- site sides — and even these items have been generally revised, corrected, and amplified by the original stenographic notes of the subscriber — though their phra.seology shows the work of different hands. It is, notwithstanding, confidently believed, that nothing es.sential has been omitted which coidd give greater value to the publication, as a whole, or en- title it to fuller confidence, as to the accuracy of the licporl, either in this coun- try or in Hurope: and as it is looked for with considerable interest, not only throughout tlie United States, but in Canada, in England, and other parts of the British Empire, it may not be improper to state at the clo.se of this brief explanation, that Mr. Harvey Fowler, a well known stenographer and reporter in the Canadian I'arliainent, has been associated with the subscriber in prepar- ing the Report which is here submitted. To the court and its officers — to counsel on both side.s— to jurors, witnesses and the public it is submitted, not oidy for their sanction and approval, but for their patronage and support. MARCUS T. C. GOULD. City of New York, Nov. 1, 1841. I >v ALEXANnEli ill piilii|)hlt;t I'j^i tlii'He ru- tlmn it' pro- rocordt'd in roin Jour to iscript; and diiy, for « Iter of eacli sp('(,'c}lus of *'si)apfr co- ' action, for ais tlie trial placed Ix;. 'I'scntfd. at was ex. adc, by the mal .spi'culi tlie under- tliu whole le hour out ndebted to id, will ac e versa, as i, while in II portions on oppo- Rcted, and 'Ugh their has been 3le, or en- Ihis coun- » not only ■ parts of this brief 1 reporter n prepar- witnesses d, but lor )ULD. CONTENTS. Prospectus to (Jould's Reporter, - - Advertisement to vol. 'J of the Reporter, or The Tfuai, of Adexander McLeod, L'ourt, otficers, couni^el, jurorn, &c First day ok the tkial. Dpening of proceedings at Utica, October 4th, ly41, - Organization of the coin-t, and enipannelliiig of jury, - lx», 13, 14, Indictment of Alexander McLeod for the irmrder of Amos Durleo, by the Grand Jury at Ixjckport, Niagara County, State of New York, February 1st, 1H41 Attoknev-General's opening speech commenced. Judge Cowan's decision of the Supreme Court of the State of New Vork, May, 1841, as read by the Attorney-General, Attorney-General resumes and concludes his opening address, - Test imomj for the prosecution, William Wells, . . Second Day. Daniel J. Stewart, Frederick Emmons, J. C. Haggarty, .... Henry Emmons, John Hatter, Joshua A. Smith, James H: King, Captain Gilmau Appleby, Samuel Drown, Isaac P. Corson, Third Day. Charles Parke, Henry Meyers, Calvin Wilson, Elijah D. Effner, Seth Hinman, t» 10 11 15, 10 17 ■il 41 45 49 51 56 57 57 58 58 59 61 64 66 71 73 75 t76 I ^ CONTKNTS. SiirliH Vatrn, William W. Caswrll. . Arihoii D. i|iiinliy. .In>lii> !•'. 'l'. SirvoiiH, - I.'onaid Aiihoii, PrOMTiiiion ifhtcd. Ml!. Si'K.MKtt's ()|)iiiin^' npcoch for tho priftonnr, Ft)UHni Day. Ti'stimnny fur /lie jfrixoiur. Aluxnnilcr C. Ilaniilton, Hewl(!tt Lott, LaiiKJiig VVtitnmn', Hanmcl Drown, David ('. HiitcH, - JniiicH A. Scort", Mil. SpKM r.ii's romarkn on introiliiciiip (lonmioiitary t'vidont JiiKji: (iKtDi.Ev'.s remarks, explanatory, on do. I)i.scui 8(1 81 8',' 85 01 U» 94 94 94 OT) 99 Ktf) fr. «5, I(»7, KIN IW 110 1^) liJl lay i;j4 I4() 14fi 151 156 161 168 179 177 183 184 190 191 197 19S 199 f John M(-I<*'ar), jHt(|M( Dnt't'iicc ill cliit't I'loM'il iiiid proHocutioii rtrr Jimtirr lltll. AlfVaiidiT McLod't), .1. VV. M()|•ri^'Oll'.s, Arcliilialil Morricon'ft Oi'imsilidns Ink^n hi'J'irrf Jiiiliifi'. Howrn. AloxiiiuItT McLeod'H, Mar>,'iin!f MorriMon'e. Ilnrrit't MurriHoirf, Dqxmtiwis taken l>y ronunissioii, of" Dunniii CaiiKTOti, Rit^ml lii^'lJH, Testitiumy / 231 231 231 231 231 232 247 285 305 340 3r.9 361 370 381 397 415, 416 k 10 TRIAL OF ALEXANDER McLEOD. FOR THE MURDER OF AMOS DURFEE Circuit Court, 5th Judicial District of the State of New York, at Utica, Oneida County, Oct. 4, 1841. Hon. PHILO GRIDLEY Presiding, Sustained by Judges White, Kimball and Jones, of the County Courts of Oneida, though having no voice on this occasion. DAVID MOIJLTON, Esquire, Sheriff'. P. SHELDON ROOT, Esquire, Clerk. 'HERIFF'S OFFICERS. Edward Eames, Under Sheriff. Samuel Hall, Deputy Sheriff. CONSTABLES IN ATTENDANCE. Clark Potter, George Hotchkies, Charles Benedict, Samuel Hall, Ephraim Wilcox, Eli Bridges, John Sutton, Joseph Merrill. COUNSEL FOR THE PEOPLE. WILLIS HALL, Esquire, Attorney-General. JONATHAN L. WOODS, Esquire, Diat. Att'y for Niagara county TIMOTHY JENKINS, Esquire, Dist. Att'y for Oneida county. SETH C. HAWLEY, Esquire, of Buffalo. COUNSEL FOR PRISONER. JOSHUA A. SPENCER, Esquire, United States District Attorney. HIRAM GARDNER, Esquire, of Lockport. ALVIN C. BRADLEY, EsQuire, of Lockport. j:!7k^. rjpn I u D. V York, at inty Courts I? 2. 3. 4. 5. COURT ROOM, UTICA, MONDAY MOPuNING, OCTOBKR 4j 1S41. In pursuancu of arrangements previously made and publislied by tlic City Council, under the advice of the Court, to prevent confusion on the present occasion, the following order of admission to the court-room was observed, viz. "1. The Members of the Court. The Members of the Rar and Reporters. The Prisoner, and Constables who attended l)im. The .Fury drawn to try him. The Witnesses, who had a scat by themselves. 6. Citizens generally." A large number of constables and special deputies were in attendance at the outer door and in the court-room, and other precautions taken to in- sure the most perfect order and decorum, not only while assembling, but throughout the sittings. A few minutes past nine o'clock, .ludgc Gridley entered the Court, at- tended by the usual Common Pleas Ju(lg(\s of Oneida county (who, how- ever, take no part in this trial,) and the counsel engaged in the case, tbllowed by the bar generally. The jurors were next arlmitted ; and when they were seated, the witnesses were accommodated with seats. The spectators next entered in a very orderly manner, which reflects credit on those who conceived and carried out the arrangements and regulations. There was no rushing for the sc:ats, but every one entered as demurely as though the court were a parish church. No more were ad- mitted than could be comfortably seated ; and, indeed, no more appeared desirous to be present. Persons at a distance, who have been wrought up to a feverish excitement on this subject, will be astonished at the apparent apathy felt here. • At fifteen minutes to ten o'clock, the crier opened the court with the usual formality, and Mr. Wood, district attorney for the county of Niagara, applied, to the court for an attachment against Theodore Stone, of Lock[)ort, sherifi' of the county of Niagara, for disobedience to a subpoena sc-rved upon him on the 27th ult., to appear at this court as a witness for the prosecution. The court made the order. A few minutes before ten o'clock the prisoner was brought into court, walking deliberately to a seat within the bar, near his counsel. He was dressed neatly in a suit of black, and was wrapped, as he entered, in the ample folds of a blue cloak. His counsel shook him cordially by the hand, and he gracefully returned the salutations of others. He is a man of gentlemanly bearing and demeanor, and he appeared respectful but not embarrassed. '1^1 p • f r i:. •I 12 GOirLD'.S REl'ORTKR. Judge Gridlcy- — Mr. Hull, are you ready in the case of the PEOPLE OF THE STATE OF NEW YORK VERSUS ALEXANDER McLEOD? Mr. Hall, Attorncy-Oenorul — (with whom were associated, for the prose- (.'ution, Mr. .Fnikiiis, District Attorney for Oneida county, Mr. Wood, Dis- trict Attorney for the county of Niagara, and Mr. Seth C. Huwiey, of BulTalo) — If the court please, I move on the cause. .'udgc (Iridley. — Arc you ready, Mr. Spencer? Mr. Spencer — (with whom were associated IMr. Bradley and Mr. Gard- ner) — \Vc arc ready. .luflge Gridley. — Then wo will proceed with the case, and as the clerk calls the names of the jurors, they will advance to be sworn. Mr. Root, the clerk of the court, called the prisoner, who rose and was informed by the clerk of his right to challenge. Charles O. Curtis of Paris, was the first juror called. Mr. Spencer to the Attorney. General. —Do you purpose to put an\ question generally to the jurors ? Mr. Hall. — Yes. (To the juror.) Mr. Curtis, have you formed or ex- jtressed any opinion as to the guilt or inncicence of the prisoner '? Mr. Curtis. — 1 have not. Mr. Hall. — Have you any conscientious scruples on the subject of giving a verdict involving life .' Mr. Curtis. — No, sir. Judge Gridley. — Let him be sworn. Mr. Hall. — 1 will ask, if the court please, one further question. (T<» the juror.) Do you entertain an opinion founded on motives of public policy, or otherwise, that the prisoner ought to be exonerated from punish- ment, whether he participated in the burning of the Caroline and the mur- der of Durfee or not ? Mr. Spencer. — That is a new question. "Mr. Curtis. — I feel desirous that justice should be done. I have formed no opinion. Judge Gridley. — It strikes me, that where a juror is interrogated in this fo.rmal way, if he answers that he has formed no opinion, and that he has no conscientious scruples on the subject of giving a verdict which ma^■ involve the life and death of the prisoner, the whole ground is covered. The juror w as then sworn. Edmund Allen, of Augusta, answered properly and was sworn. John Mott, another juror, said he felt as if it was his duty to be govern- ed by the evidence. Joseph Cauldwell, of Whit( sborough, had conscientious scruples on the subject of capital punishments. Mr. Hall. — You may stand aside. Judge Gridley. — What arc those scruples ? Juror. — I never felt willing to bring a man in guilty where the law pro- nounces the punishment of death. Judge Gridley. — I think it is better you should stand aside ; but it is no portion of a juror's business to look to consequences. i V' h stol feel to t>) iut MCLEOD S TRIAL. 13 K x)r tlic prose - ■ ^Vood, Dis- Hawley, of d Mr. Gard- as tlic clerk 3se and was to put any med or ex- l subject of ion. (T., of public m punisli- the mur- ^c formed 5irated ill d that he !iich nvn vered. govern- s on fhc- a\v pro. it is no 1 ll ,1 i Mr. Jenkins. — The statute makes it cause of challenge, if your llonoi- plea.se. Th(( juror was told to stand aside. .\shley Hills, farmer, of Kirkland, was next called. Mr. Spencer. — Challenged. Tiie juror was put aside. Elijah Hrush, of Rome, was next called, and the usual questions were put on the subject of conscientious scruples. Judge Gridley said the question was a proper one, when it was under- r^tood. It was not meant that a juror should be excused because lie migiu feel pain on returning such a verdict, but that it was a matter of duty not to return a verrlict involving life by the law of the land. Mr. Hall. — How do you answer ? Would you find a verdict according to the evidence on the guilt or lnnoc(;nce of the prisoner in a capital indictment ? Juror. — Certainly. Mr. Hall. — Swear the juror. Royal Rijbbins, of Marcy, said he had formed no opinion further than he hoped that justice would be done. He had not made up his mind as to what justice; was. Mr. Spencer. — He may .stand aside. Roswell T. Eastman, of Paris, was excused, being too unwell to set aa a juror. Ira Hyington, of Camden, was sworn. Also Wm. Carpenter, of Kirkland. John Swann, jun., of We.ston, did not answer. Edward Scoville — I wish to be excused on the ground that I have doubted the policy of inflicting capital punishment. He was excused. Luther Shepherd, of Verona, was challenged. Josiah Thurbcr, of Utica, answered the questions satisfactorily that were put. -Mr. Hall desired that this juror might stand aside until the panel was exhausted. He believed it was a common law right, although they had lio peremptory challenge. Mr. Spencer — You have no such right. Mr. Hall argued that he had the right to put a juror aside, until the whole [lanel was exhausted, and then, if it were necessary to call t!ic same juror, li'j could only bo put aside on cause shown. Judge Gridley — It is a qualified peremptory challenge Is there any objection ? Mr. Spencer — I never heard of such a right before, it is much more than a qualified cliallenge, and they may thus ask that thirty-six jurors may stand aside, while the prisoner has the right to challenge but twenty. Mr. Hall said a decision had been mudi; in a similar case in the t'nited States Supreme Court, in the case of the United States v. V/ilson aiu! I'orter, which was tried before Judge Baldwin, of Pennsylvania, Mr. Dallas, in that case, claimed the right, and it was contested, upon tlie ground th.'U there was no peremptory challenge allowed by the laws of Pennsylvania. The opinion of the Supreme Court, delivered in the above case, is as I'ollows : — The court observed that they had known no case where the right ikjw claimed had been allowed to the prosecution. That they would not be the 14 GOULDS REPORTER. fi} ('!t ! I first to do it in a capital case, unless it was clearly establisheii ; but that, on exniuinin^ the ()|)iiiioii of tlie Supremo Court in the casi; of the United States V. iMarcliatit and Colsuii, U? Wlieaton, 480, 484, 48o, they did not liM'l themselves at liberty to refuse the qualified right of challenge now claimed by the I'nitcd States. The law as laid dawn by that court is, that in England tin: crown had an acknowledged right of peremptory challenge before the statute of M Edward 1., which took it away and narrowed the riglit down to that for cause shown ; but that an uniform practice had prevailid ever since^down to the present time, to allow a conditional and" (|ualili«d exeruise of that right, if other sufficient jurors remained for tho " trial, by not compelling the crown to show cause at the time of the objec. tion taken, but to put aside the juror until the whole panel is gone through, so that it appears there will not be a full jury without the person chal- longed. That the right of peremptory challenge allowed the prisoner was not to select the jury who were to try him, but merely to reject such as he pleased, though he could assign no reason for so doing, and that the court would not inquire into what was the United States' prerogative, but simply what was the common law doctrine. The court considering the opinion of the Supreme Court as a recognition of the qualified right of the United States to challenge, direct(!(l the juror to be put aside till the panel was exhausted, declaring that if that should happen, and the juror be called again, Th(> United States could not challenge him without showing cause. Baldwin's Rep. p. 8xi. The authority referred to in the above opinion of the Supreme Court is as follows : — Until the statute of 33 Edward I. the crown might challenge pcrempto- . rily any juror, without assigning any cause ; but that statute took away that right, and narrowed the challenges of the crown to those for cause shown. But the practice since this statute has uniformly been, and it is clearly settled, not to compel the crown to .show cause at the time of ob- jection taken, but to put aside the juror until the whole panel is gone through. Hawkins on this point says (PI. Cr. b. 2, ch. 43, §2, §3,) " if the king challenge a juror before the panel is perused, it is agreed that he need not shuw any cause of his challenge till the whole panel be gone through, and it appears that then; will not be a full jury without the per.son .so challen'jed. And if the defendant, in order to oblige the kino; to .show cause, presently challenge ' louts par availe,' yet it hath iieen adjudged that the defendant sludl be first put to show all his causes of challenge be- fore the kiiiy need to show any.'' And the learned autlutr is fullv borne out by the authorities which ht; cites, and the same rule has been recog- nized down to the present times. The Attorney-CTcneral also quoted the following from Chitty's Criminal Law, vol. .'), p. 533 : — The challenge to the array or the polls may be made either by the crown or the defendant. On the part of the former it seems that at common law any number of jurors might have been peremptorily challenged, without alleging any other rca.son fur the objection than •• quod non boni sunt j)ro rege." This power, however, being found very liable t» abuse, was taken away by the 33 Edward I. stat. 4, conimonly called ordinatio do incpiisitionibus. which has been construed to extend to criminal as well as civil proceed- n 1 ffi 'Ht' ii\ —-—~rr: Mcleod's huAL. l-f ; but that, oi) f tlic Ul)iti;il tlicy did nor allfiigo now court is, tliat rycliallcngc id narrowed imctice had itlitional and' inod for tlio ' )i" the objoc. )nc through, Jt-rson chuil. lor was not such as ho at the court ) hut simply the opinion the United p;tiiei was r he called ving cause. remc Court ; pcrcmpto- took awa}- ! for cause 1, !ind it is time of oh- cl is ijonc 3,) "if the ed tliat he 'I be gone the person g to show adjudged illenge be. ully borne -'en rccog. I Criminal 31' by the lumber of any other ien away itionibas. proceed. inf and insisted on by the prosecution. It was, he said in fact, a (jualiiicd peremptory challenge which belonged of right to the prisoner alone, and to support iiis objections he cited 2 R. S. p. 41, sec. 61, and 2 R. S. p. 615, .sec. 9. •' Every person arraigned and put on his trial lor any offence punishable with death, or with imprisonment in a state prison for ten years or any longer time, shall be entitled peremptorily to challenge twenty of the persons drawn as jurors for sucli trial, and no more." Judge Gridley, in deciding on the proposition, said, — In a case where the common law recognizes a right, although the fact be that no attempt has been hitherto made; by a [)ublic prosecutor to avail himself of that right, it is not consequent that it should not be awarded to him, if he does avail himself of it. But it has not been shown that the statute recognizes this right. I see no reason why this common law right should have been pre. served to the king, after the statute took it away from him. But it seems tl]at it was so, and that it was part of the common law which cumc down to us at the time of tlie* revolution. But so far as I can see, the provisions of our statutes have trenched on this common law right. Tlie statute points out how juries should be empanelled in civil and criminal cases, and unless some of them arc set aside for cause shown, or by jien.'mptoiy challenge, the rule is distinctly prescribed, that tlie first twelve men called shall constitute the jury. I therefore decide the ([uestion, that the peoj)le have not the right to have jurors set aside until the panel is exhausted, and the juror must be sworn unless challenged or set aside for cause shown. The juror was then sworn. Henry Addington, of Paris, farnK.r, had rcligiou.s scruples, and was put aside. Peter Sleight, of Westmoreland, was sworn. Henry Hayter, of Kirkland, was challenged. David Tuttle, of Broomville, was challenged. Asher Allen, of Augusta, was sworn. Seymour Carrier, of Steuben, was sworn. Amasa Barnes did not answer. Thomas Noonan, of Amsville, was challenged. Jonathan House did not answer. Joseph Davis, of Remscn, was challenged. Joseph Seymour, of Western, was challenged. Henry D. Babcock, of Marcy, was challenged. Eseck Allen, of Floyd, was sworn. H 16 fiOULD'S REPOKTER. I Stephen Northrup, of Marcy, was excused, being too unwell to cncoun- ter this trial. Levy Yale, of Augusta, was challenged. VoIn<'y Elliott, of Kirkland, was sworn. The jury being now complete, .hulgo (iridlcy directed the sheriff to provide lodgings, and places to lake tlu'ir meals, for the jury, as it would be necessary to keep them toge- ther during the whole of the trial, and to provide them with acconimoda- ti(jns as near the court as possible. The .sheriff promised that it should be done. The following is the jury complete, as sworn, viz. 1. Charles O. Curtis, farmer, Paris. 2. Edmund Allen, physician, Augusta. 3. .lohn Mott, merchant, Sangerfield. . • 4. Elijah Brush, farmer, Rome. 5. Ira Byington, farmer, Camden. - 6. William Carpenter, farmer, Kirkland. 7. Isaiah Thurber, merchant, Utica. 8. Peter Sleight, farmer, Westmoreland. 9. Asher Allen, farmer, Augusta. 10. Seymour Carrier, farmer, Steuben. 11. Eseck Allen, farmer, Floyd. 12. Volncv Elliott, farmer Kirkland. I if « M n illi^ ..'.' - — - 'ell to encoiin- ind places to Lip them togc- acconimofia- I INDICTMENT. At a Court of General Sessions of the Peace, holden at the Court House in the town of Lockport, in and for the county of Niagara, on the first day of February, in the year of our Lord one thousand eiglit hundred and forty- one, before Washington Hunt, Levi F. Bowen, Lathrop Cook, and Hiram McNeil, Esquires, Judges of the County Courts for the said county of Niagara, assigned to keep the peace in the said county of Niagara, and also to inquire, by the oath of good and lawful men of the said county, of all crimes and misdemeanors committed or triable in said county, and to hear and determine, and punish, according to law, all crimes and misdemeanors not punishable with death, or imprisonment for life in the State Prison, and to exercise such other powers and duties as may be conferred and imposed by the laws of this State, and duly authorized to hold the said Court : NL\GARA COUNTY, ss. The Jurors for the people of the State of New York, and for the body of the county of Niagara, to wit : Charles L. Safford, Joseph Cleveland, James Crownoon, George Curtis, James Field, Andrew Pease, Erastus Odell, Warner Green, James Tompkins, Hunt Farnsworth, John Jeffrey, Warren Carpenter, Truman Roberts, Jesse Huntley, Moses Beech, Alfred Pool, and Henry P. Trobridge, good and lawful men of the said county of Niagara, then and there being empannelled, sworn and charged to inquire for .the people of the State of New York, and for the body of the county of Niagara, upon their oaths present — That Alexander McLeod, late of the province of Upper Canada, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the thirtieth day of December, in the year of our Lord one thousand eight hundred and thirty-seven, with force and arms at the town of Niagara, in the county of Niagara, aforesaid, on and upon one Amos Durfee, in the peace of God, and of the people of the State of New York, then and there being, feloniously, wilfully, and in his malice aforo thought, and with a premeditated design to effect the death of the said Amos Durfee, did then and there make an assault upon the said Durfee, and that the said Alexander McLeod, with a certain gun of the value of five dollars, then and there loaded and charged with gunpowder and one leaden bullet, (which the said Alexander McLeod, in his right hand, then and there had and held,) to, against, and upon the said Amos Durfee, then and there feloniously, and wilfully, and of his malice aforethought, and with a pre- meditated design to effect the death of the said Amos Durfee, did shoot and discharge, and the said Alexander McLeod, with the leaden bullet aforesaid, out of the gun aforesaid, then and there by force of the gun- powder, and shot sent forth as aforesaid, the said Amos Durfee, in and upon the back part of the head of him the said Amos Durfee, a little above the neck of the said Durfee, then and there feloniously, wilfully, and of his malice aforethought, and with a premeditated design to effect the death of 3 H ri r. PI f i i|' L I Hi h: ill 19 GOULD'S REPORTER. the said Amos Durfcc, did strike, penetrate, and wound, giving to the said Amos DurCee, tlicn and there with the leaden bullet aforesaid, so, as afore- said, shot, discharged and sent forth, out of the gun aforesaid, by the said Alexander McLeod, in and upon the back p^t otthe head of him, the said Amos Durfee, one mortal wound, the said Durfce, then and there on the said thirtieth day of December, in the year of our Lord one thousand eight hundred and thirty-seven, aforesaid, at the said town of Niagara, in the said county of Niagara, did languish, and languishing, did die, and so the Jurors aforesaid, upon their oaths aforesaid, do say that the said Alexander McLeod, the said Amos Durfee, in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, then and there did kill and murder, against the peace of the people of the State of New York, and their laws and dignity. 2d Count — Presents that Alexander McLeod, killed Amos Durfee, at the time, place, and manner, as specified in the first count, with a pistol. 3d Count — Presents that John Mosier committed the crime of murder ; and that Alexander McLeod was accessory before the fact ; and that the deed was done with a pistol. 4th Count — Presents that the murder was committed by certain evil dis- posed por^'ons to the Jurors unknown, and that Alexander McLeod was accesso.y before the fact ; and that the deed was done with a pistol. 5th Count — Presents that Tliomas McCormick committed the crime of murder, and that Alexander McLeod Mvaa accessory before the fact j and that the deed was done with a gun. 6th Count — Presents that the crime of murder was committed by certain evil-disposed persons, to the Jurors unknown ; and that Alexander McLeod WEis accessory before the fact ; and that the deed was done with a gun. 1th Count — Presents that Rolland McDonald committed the crime of murder ; and that Alexander McLeod was present, aiding and abetting ; and that the deed was done with a pistol. 8th Count — Presents that the crime of murder was committed by John Mosier ; and that Alexander McLeod was present, aiding and abetting ; and that the deed was done with a gun. 9th Count — Presents that the crime of murder was committed by certain evil-disposed persons, to the Jurors unknown, that Alexander McLeod was present, aiding and abetting ; and that the deed was done with a pistol. 10th Count — Presents that the crime of murder was committed by certain evil-disposed persons, to the Jurors unknown ; and that Alexander McLeod was present, aiding and abetting ; and that the deed was done with a gun. llth Count — Presents that the crime of murder was committed by certain evil-disposed persons, to the Jurors unknown, and that Alexander McLeod was present, aiding and abetting ; and that the deed was done with certain instruments and deadly weapons to the Jurors unknown. \2th Count — Presents that Alexander McLeod and divers other evil-dis- posed persons, to the Jurors unknown, &c., wickedly devising and intending to oppress, injure, and prejudice one William Wells, and to injure, damage, and destroy his personal property, seized and destroyed his steamboat called the Caroline, in a manner dangerous to the lives of persons ; , and that the deed was done with deadly weapons. 19th Count — Presents that Alexander McLeod, and divers other pevsons, I to stoi (le( Cai was dis MCLEOD S TRIAL. 19 ■ing to the said id, so, as nlbre- iid, by the said i' lum, the said icicon thcsaid housiand eight ira, in the said i so the Jurors inder McLeod, )usly, wilfully, lurdcr, against vs and dignity. OS Durfee, at with a pistol. le of murder ; ; and that the jrtain evil dis- McLeod was a pistol. the crime of the fact ; and ed by certain uder McLeod vith a gun. the crime of nd abetting J itted by John nd abetting ; ;d by certain McLeod was h a pistol. ed by certain Alexander id was done d by certain der McLeod with certain her evil-dis- nd intending ire, damage, steamboat |!i-sons : and i to the Jurors unknown, tS.:c., conspired together, (fcc, to destroy tin- steamer Caroline, the property of the said Williunj Wells ; and that the deed was dune with a gun. mh Count — Presents that ^oxander McLeod, in destroying the stoanmr Caroline, the property of the said William Wells, caused the death of the said Amos Uurfee ; and that the deed was done with a gun. I5th Count — Presents that Alexander McLeod, in destroying the steamer Caroline, caused the death of the said Amos Durfee ; and that the deed was done with a pistol. IQtIi Count — Presents that Alexander McLeod, with divers other evil- disposed persons, intending to deprive the said William Wells of his pro- perty, *S£c., committed the crime of murder, and that the deed was (lone with dicers instruments, tools, and deadly weapons, unknown to the Jurors. nth and last Count — Presents that Alexander McLeod, with divers other evil-disposed persons, to the Jurori unknown, conspiring to injure the said Wells, and to commit the crime of arson, did commit the crime of murder, by producing the death of the said Amos Durfee, with divers instruments, tools, and deadly weapons, to the Jurors unknown. (Signed) J. L. WOODS, District Attorney. [Indorsed.] Niagara General Sessions, February Term, 1841. The People vs. Alexander McLeod ; Indictment, murder. J. L. Woods, Dis- trict Attorney. A true bill — C. L. Safford, foreman j Filed July 6, 1841. EXPLANATORY NOTE. For the information of persona not familiar with the history of this case, the follow, ing is deemed appropriate in this place, viis: — On the evening of the 29th day of Decem- ber, 1837, a steain vessel called the Caroline, belonging to one William Wells, a citizen of Buffalo, State of New York, was lying in the Niagara river, alongside of the wharf at Schlosser, in the county of Niagara, and had on board a number of our citizens. At that time a civil commotion prevailed in the Canadas, and, as it is alleged, the Caroline had been used to carry arms and munitions of war from the shores of the State of New York to an insurrectionary party on Navy Island, then in arms against the government of Upper Canada. While the Caroline thus lay within the jurisdiction of the State of New York, a party of her Britannic Majesty's subjects left the shores of the province of Upper Canada, and came within our lines, seized and destroyed her, and killed one Amos Durfee, — who was found dead upon the wharf, — and as it has been supposed, sev- eral others of the citizens who were on board of the vessel. The perpetrators of this act were deemed to have been guilty of the crime of murder, and to be amenab'.e to our laws. On the 12th day of Nbvember last, Alexander McLeod, the prisoner, a subject of the crown of Great Britain, and a resident of Upper Canada, came to Lewiston in the county of Niagara, and was there arrested on the charge of having been concerned in the destruction of the steomer Caroline, and in the murder of our citizens ; and on ex- amination was committed to the common jail of said county, to answer to such charge. On the 6th day of February last, at a Court of General Sessions of the Peace, a Grand Jury of said county found a true bill of indictment against him for the murder of Durfee. This indictment, which is now to be traversed, the prisoner, McLeod, removed from the Niagara Oyer and Terminer, to which it had been sent from the General Sessions, into the Supreme Court of Judicature of the people of the State, from which it was sent down to this Circuit to be traversed. It is tried as a civil suit, by the Circuit Judge ; the county Judges, who are Judges of the Oyer and Terminer, having no voice on the trial. Reporter. tier peisons, ly between , a band of )ssession of he name of 1 in Canada [ir borders. ns in their les and St. ■and whos(! Canadian sufferings, ut an easy refugees, ited, some vy Island. n country grievous to vindi- levant to ), without our own Ives with le United een done ctions of le Swiss and who ore than They reeks in han La Fayette — the good, the glorious Im Fnyrtte — who in \m love for luimnn libtTty iTdssod \\v Atlantic, and ^' ive his jiti- and |)rinc<'ly lurinne in tlio Htruj^gle of till' I'atriofs in our ow/i Ht>voliiiion. (ientlemen, I nin not de. vialing I'roin i'"'' case fiiflher fhan \h nrecssary to remove the just odium under which the « 'ise liihofp, l>y having heaped upon it that wlii<'h has been uIljll^^tly thrown lipon those who jf-ined the insurgents. I wi.>*h to set before you distinctly, tfm' in this case, it will appear in |)roof, that the Caroline was not connecteil willi the insiu-gents oa N/ivy Island, that she was not in their eniploynient, or in any way comiected with their opera- tions. It will appear tVntn the testimony, lluit the objects of the. owners of the Caroline was of !i totally dillertint character. Thisi collection upon Navy island had (;xeited great curiosity throughout the country. At this period of the year, the lakes and the canals were closed with Ice. Those whoso usual occu()ation was to navigate those waters, were relieved from their labor — and this was a season of leisure. Winter had set in — the farmer and his sons and laborers were relieved from the cultivation of the soil, and had leisure to enjoy the fruits of their labor. It was about the time of the Christmas holidays. Large numbers of people were assembling at Schlosser, the nearest landing place and port to Navy Island. Is it re- rnarkable that on(! of our countrymen, especially one of our eastern breth- ren, should see an opportunity of gain under these circumstances ? This was the fact, and Mr. Wells saw in the circumstance of the excitement and curiosity which were drawing thousands to Schlosser — of whom not one in a thousand went to the island — he saw an opportunity of making gains by his little boat, which was hardly larger than a ferry boat, and which was lying idle at Buffalo. With this, and no other motive than that of profit, he started from Buffalo, on the 28th of December, 1837, to Schlosser. He stopped at all the intermediate points, or landing places where boats had theretofore stopped. After reaching Schlosser, about 2 o'clock in the day, he went from there to Navy Island ; he made two trips in the course of the afternoon, carrying passengers and such articles as were brought to him to be conveyed, and such as were conveyed by other ferry boats. Among these articles it will appear there was a cannon. Much stress has been laid upon this circumstance ; and I therefore pause one moment to comment upon it, so far that you may perceive what force an act of this kind should have. It was one of those articles which, when nations are at war, neutrals are prohibited to convey, under pain of forfeiture if taken. If a neutral undertake to carry arms and munitions of war, the vessel and articles so conveyed ajjc liable to forfeiture. But if a vessel carry such articles to the destined point and land them, she cannot afterwards be held liable. The moment the articles are landed she is no longer liable to be seized or molested. This law applies upon the high seas, the common high-way of all nations. In this portion of the territory it would apply only in cases of seizure within the waters of Great Britain, and it would not extend to them the right of coming within our own waters. It will be observed that at the same time that this vessel wa.s passing between Navy Island and the American shore, a ferry boat was passing from Black Rock to Waterloo, on the Canada shore daily and hourly, carrying to Canada arms and munitions of war, and the Canadian army "were fed at the same time from the American shore. And I go further and say — but I do not in this case say it with pride — it will be found that American citizens were iu the ranks of the army embodied upon the 24 GOULD S REPORTER. ■ if Canadian side. But when it is brought up against these people as a charge that their interfl-rouoe was unjust and iniquitous, the charge seems to be unfounded in fact. It seems as a course consistent, when citizens of a neutral power enlist in the ranks of their enemies, that our citizens should be equtlly ready to enlist in their ranks. Our relations are such that we can interfere neither on one side nor the other. After having performed these trips, this steamboat was moored at Fort Schlosser. Be not deceived. There is no fort there. The old fort is covered with luxuriant cornfields. There is no building except a warehouse at the wharf, and a tavern about fifty rods from it, and scarcely a house excopt at the Falls, for a distance of two miles. At this tavern the hundreds who were flocking there, and were crowding and thronging this place in the evening could not obtain lodgings, and came to the boat. The captain gave them liberty to lodge upon the boat, so far as her accommodations extended. It will appear that some eighteen or twenty went to the boat and. took up lodgings. It will also appear that this boat was unarmed, tliat she had no equipments of her own, nor had she on board any arms, nor were the men on board armed. Nor were those who came on board to lodge that night armed. At 10 o'clock, as will appear, tlie watch was set, and the inmates retired to their repose, unsuspicious of danger, as they were unccnscious of wrong. But about 12 o'clock — the testimony may vary f.'om half-past eleven until one o'clock — the Captain was aroused by the watch, who informed him that boats full of men were approaching, and that the men were coming on board. Presently the noise of tramping and shouting was heard, and the men aroused in this manner from their slumbers, hastily arose, and seizing whatever of their clothing was at hand, they rushed for the companion-way or gangways, to every avenue " through which they might escape. Some were fortunate enough to escape with their lives, others were met by armed men, and thrust at with swords and pikes, and severely wounded ; yet they were enabled to escape with tlieir lives. It is but too probable that there were still others, who, alarmed at the sudden onset, by the cries and shouts, the clashing of arms and firing of pistols, and cries of no quarter ; and apprehensive of being put to death, concealed themselves beneath and around the boiler and other places, and came forth after those ruffians had left the boat, only to meet the rushing flames, and to hear th" roar of Niagara. But, gentle- men of the jury, those who had escaped from the boat, found that they had not thereby escaped from danger. Some who had escaped from the attack upon the deck of the vessel, were pursued iuto the warehouse. And the warehouse was searched with lights to ascertain — in the language of themselves — if some of the d d Yankees were not concealed there. Amos Durfce, whose sad fate is the immediate cause of your being em- pannelled here, was found upon the wharf, some four rods distant from the boat, a ball having been shot through his head, entering the back part, and coming out in front. It had been so near that the cap upon his head was singed with fire from the gun. He had doubtless been shot upon the spot, and died instantly with the wound. It will appear also that the as. sailants who had committed this bloody rieed were some of a band of armed men, between forty and sixty, who had come from the Canadian shore. It will appear before you that it was a secret and voluntary expedition, armed for the purpose of the destruction of the Caroline. At that time, gentlemen of the jury, there was on the Canada shore an pe tha Mcleod's trial. 26 ae people aa a »e charge seems , when citizens hat our citizens aliens are such After having Schlosser. Be 3 covered with rehouse at the a house except 1 the hundreds g this place in . The captain ;commodations ent to the boat was unarmed, lard any arms, ;ame on board the watch was of danger, as •tlie testimony in was aroused 5 approaching, 50 of tramping »er from their ? was at hand, 3very avenue' ugh to escape It with swords 3 escape with others, who, shing of arms isive of being ie boiler and boat, only to But, gentle. md that they ped from the shouse. And language of ;ealed there. ir being em- distant from e back part, ion his head liot upon the that the as- " a band of le Canadian i voluntary e Caroline, da shore an :4 W. army of some twenty-five hundred men, who had been collected there on the occasion of the seizure of Navy Island by the insurgents. They were there avowedly for the purpose of repelling any attempt at invasion which might be made by the insurgents. From these circumstances, it has been alleged that the transaction was one more of a military character than civil ; that it was a transaction of armed men, acting in an organized manner, and to be governed by laws and rules which do not prevail in courts of justice. Gentlemen, it is but right that your minds should be perfectly disembarrassed ; I therefore present the case to you l)roadly, that when the testimony is brought before you, you may see its bearing and application. I will submit the decision of the Supreme Court, given upon the facts in evidence, after able and eloquent arguments on the part of the counsel for the prisoner — given after great deliberation — an oj)iiiion which is unanswered and unanswerable. In that opinion, all those ques- tions which might embarrass you, under the ingenuity of counsel, have been entirely disposed of, and the real points which you are to pass upon are distinctly pointed out to you. The learned gentleman here read the opinion of Judge Cowen, recently made on the case brought before the Supreme Court of the State by the prisoner some few months ago, which is as follows : — OPINION OF JUDGE COWEN. The prisoner's petition, on which I allowed this writ, contained an intimation that his commitment to the jail of the county of Niagara had not been ree^ilar ; but that ground is now abandoned. The sherilT returns an indictment for murder, found by a grand jury of that county against the prisoner, on wiiich he appears to have been arraigned at the Court of Oyer and Terminer holden in the same county. It further appears that he pleaded not guilty, and was duly committed for trial. The indictment charges, in the usual form, the murder of Amos Durfee by the prisoner, on a certain day, and at a cer- tain town within the county. These facts, although officially returned by the sheriff, were, by a provision in the habeas corpus act, 2 R. S. 471, 2d ed. §50, open to a denial by affidavit, ov the allega- tion of any fact to show that the imprisonment or ('ctention is unlawful. In such case the same section requires this court to proceed in a summary way, to hear allegations and proofs in support of the imprisonment or detention, and dispose of the party as the justice of the case may require. Under color of complying with this provision, which ii of recent introduction, the prisoner, not denying thejurisdiction of the court over the crime, as charged in the indictment, or the regularity of the commitment, has interposed an affidavit, stating certain extrinsic facts. One is, that he was absent, and did not at all participate in the alleged offence ; the other, that if present, and acting, it was in the necessary defence or protection of his country against a treasonable insurrection of which Durfee was acting in aid at the time. Taking these facts to be mere matters of evidence upon the issue of not guilty, and of themselves, they are clearly nothing more, I am of opinion that they cannot be made available on habeas corpus, even as an argument for letting the prisoner to bail, much less for ordering his unqualified discharge. That this would be so on all the authorities previous to the Revised Statutes, his counsel do not deny. Tiie rule of the case is thus laid down in the British books : — " A man charged with murder by a verdict of a coro- ner's inquest, may be admitted to bo'" ; though not after the finding of an indictment by the grand jury." 1 Chit. Cr. L. 129, Am. ed. of 1836. Petersd. on Bail, 5r>l, S. P. It has never, that wc are aware, been departed from in practice under the British habeas corpus act. Lord Ch. .Justice Raymond said, in Rex v. Dalton, 2 Str. 911, that he would bail though a coroner's inquest had foimd the crime to be murder ; and the dis- tinction was between the coroner's inquest, where the court can look into the deposi- tions, and an indictment where the evidence is secret. Lord Mohnn's case, 1 Salk. 104, S. P. This reason is adopted by Chitty, at the page of his Cr. Law before cited ; and by Petersd. on Bail, London ed. of 1835, p. 521. It was also recognised by Suther- 1 'rl n *i p 1 ;; I' 26 GOULD'S REPORTER. land, J. of this court, in 1825. Taylor's case, 5 Cowen's Rep. i)6. He says, " the in- dictment must be taken as conchisive upon the degree of tlic crime," id. The depositions heretofore taken in the cause being thus cut off, there are no incans of inquiry left to us on this motion, by which we can say whether a murder was in fact committed, or whether the charge would probably bo mitigated on the trial to a very doubtful case of manslaughter, or to a homicide in defence, or whether all participation might be disproved by showing a clear alibi. Nothing is bettor settled, on English authority, than that on habeas corpus, the examination as to guilt or innocence cannot, under any circumstances, extend beyond the depositions or |)roofs upon which the pri. soner was committed. This would be so, even on habeas corpus before an indictment found, however loosely the charge might be expressed in the warrant of commitment. Chitty, at the page before cited, says, " It is in fact to the depositions alone that the court will look for their direction : where a felony is positively charged, they will refuse to bail, though an alibi be supported by the strongest evidence." He cites Rex v. Green- wood, 2 Str. 1138, a cbbc of robbery, and eight credible witnesses making aflidavit that the prisoner was at another place at the time when the robbery was committed ; yet, adds the report, the court refused to admit him to bail, but ordered him to remain till the assizes. Here the crime is clearly proved by the depositions which have been read on the side of the people, while, instead of eight witnesses to an alibi, we have the soli- tary affidavit of the prisoner. In Rex v. Acton, 3 Str. S.'il, the prisoner had been tried for the murder and acquitted : afterwards a single justice of the peace issued a warrant charging him with the same murder, upon which he was again committed. On an offer to show the former acquittal in the clearest manner, the court refused to hear the proof. On the authority of 'his case, Mr. Chitty, at the page just cited, lays down the rule that the court will not locik into extrinsic evidence at all. He states a case wherein the same question came up in respect to an inferior crime — receiving stolen goods with a guilty knowledge. The prisoner's affidavit denied his knowledge ; yet the court refused to bail, saying the fact of knowledge was triable by a jury only. They added, it would be of dangerous consequence to allow such proceedings, as it might induce prisoners gene- rally to lay their case before the court. Page before cited, Petersd. on Bail, page before cited, refers to Chitty, who cites cases K. B. 96. This book, eo nomine, does not ap- pear now to be extant ; and 12 mod. the only reference I am aware of, which, among the English quotations, is synonymous with Chitty's, does not appear to contain the case stated by him. But it accords with many others in circumstance ; and the reason given is almost too plain to demand any direct authority. To hear defensive matter throtigh ex parte affidavits as a ground for bailing the prisoner, would be to trench on the office of the jury ; for in the case of high crimes, bail would be equivalent to an acquittal. Accordingly, the rule as laid down in Horner's case, 1 Leach 270, 4th edition, London^ 1815, is in effect the same with that stated by Chitty. The prisoner had been committed under a charge of defrauding and robbing a man of his money by false pretences. It was insisted that the facts stated in the depositions for the king made out a mere misdemea- nor ; and that the prisoner was therefore entitled to bail. But the transaction by which the money was obtained, admitted of one construction which might make it a felonious taking. The court said, " In cases of this kind the course has always been to leave it to the jury to determine quo animo the money was obtained. In such a case the court never form any judgment whether the facts amount to a felony or not ; but merely whe- ther enough is charged to justify the detainer of the prisoner, and put him upon his trial. The cases I have noticed were, in several respects, stronger for the prisoners than the case before us. They were mostly founded on charges of a character much less serious than murder. They were all before indictment found : some of them presented a state of things on which it was plainly impossible to convict ; and last, though not least, they were mere applications for bail ; a thing which McLeod does not ask for. He demandis an absolute discharge, on grounds upon which, according to the laws of England, he would not even be entitled to bail. The law of England formed in this respect the law of New York, until our new habeas corpus act took effect. It becomes necessary next, to inquire whether the new statute has worked any en- largemeut of our powers beyond what we have seen they were up to the time when it passed. The 2 R. S. 469. 2ded. ^40, 41, requires us to examine the facts contained in the return, and into the cause of the confinement of the prisoner ; and if no legal cruse be shown for it, or for its continuation, we are to discharge him. That here is lvgal ve seen, is not 1 legally corn- case be baila- r % ^ 't bic. But so far we have no direction as to what case shall be considered bailable. We arc left under the restraints wliich I have noticed as existing before the statute. Not ont of them is removed by it. Tiien comes section 50, p. 471, which is relied on by the prisoner's counsel. I briefly noticed this in |>roposing the ((ucstion to be considered. But the prisoner is entitled to the benefit of it entire. The words are, that " the party brought before such court or officer, on the return of any writ of habeas corpus, may deny any of the material facts set forth in the return, or allege any fact to show either that his impnaomiient or dclcri. tion is uidaipful, or that he is entitled to his discharge, which allegations or denials^ shall be on oath ; and tliercupon such court or officer .shall proceed in a summary way to hear such allcga;ions and proofs as maybe produced in support of such impri^joninent or detention, or against the same, and to dispose of such party as the justice of the cast- may require." Under this statute, the prisoner's counsel claim the right of going be. hind the indictment, and proving that he is not guilty by utFidavit, as he may i)y oral testimony before the jury. We have already shown the absurdity of such a projiusiiiiin in practice, and its consequent repudiation by the English Criminal Courts. And \v. were not disposed to admit its adoption by our legislature, without clear words or nects-- sary construction. We think its object entirely plain without a resort to the rules of construction. It.-; words are satisfied by being limited to the lawfulness of the authority under which the prisoner is detained, without being extended to the force of the evidence upon which the authority was exerted, or which it may be in the prisoner's power to adduce at tlu trial. This, if necessary, is rendered still more plain by considering the evil which the statute was intended to remedy. At common law, it was doubtful whether the prisoner could question the tnith of the return or overcome it by showing extrinsic matter, upon the point of the authority to imprison. The statute was passed to obviate the oppres- sion which might sometimes arise from the necessity of holding a return to be final and conclusive, which is false in fact, or if true, depending for its validity on the act of a magistrate or court which can be shown by proofs aliunde to have been destitute o* jurisdiction. Watson's case, 9 Adolph. ai.d Ellis, 731, 3 R. S. 78. 5, 2d ed. App. note. An innocent man may be, and sometimes unfortunately is imprisoned. Yet his impri- sonment is no less lawful than if he were guilty. He must await his trial before a jury. There are various cases in which the enactment, allowing proof extrinsic to the return, may have effect without supposing it applicable here. It must, I apprehend, for thir most part apply to the cases where the original commitment was lawful ; but in conse. quence of the happening of some subsequent event, the party has become entitled to his discharge, as if he bo committed till he pay a fine, which he has paid accordingly, and the return states the commitment only ; so after conviction he may allege a pardon, or that the judgment under which he was imprisoned has been reversed. — Nor is it neces- sary to inquire how far we might be entitled to go, were the prisoner in custody on the mere examination and warrant of a committing magistrate. But it is said we have the power to direct the entry of a nolle prosequi, and it is our duty to look into the merits of the case, with a view to decide whether it be a proper one for the exercise of that power. This proposition is also put upon a new section of the Revised Statutes, which most clearly gives no color for the suggestion. At common law the Attorney-General alone possessed this power ; and might, under such precau- tions as he felt it his duty to adopt, discontinue a criminal ...osecution in that form at any time before verdict. The power and practice under it are laid down in 1 Chit. Cr. Law, 478, ed. before cited. — It probably exists unimpaired in the Attorney-General to this day ; and it has been by several statutes delegated to District Attorneys, who now represent the Attorney-General in every thing pertaining to indictments and other cri. minal proceedings local to their respective counties. The Legislature finding the power in so many hands, fcnd fearing its abuse, by the 2 R. S. 609, 2d ed. § 54, provided that it should not thereafter be lawful for any District Attorney to enter a nolle prosequi upon any indictment, or in any other way discontinue or abandon the same- without leave of the court having jurisdiction to try the offence charged. This provision the prisoner's counsel contended, so enlarged our powers that we might arbitrarily interfere on the prisoner's affidavit and other proofs verifying his innocence, or even on grounds of na- tional policy, as where the prosecution would be hkely to affect our foreign relations unfavorably ; and that too in despite of the Attorney-General and District Attorney. Conceded as it was, that before the Revised Statutes, we had no power to give such direction, the argument seeks to draw from the statute giving ua a veto against ' and directed against the power of another ; whether the directions relate to reprisals, the seizure of towns, the capture or destruction of private or public ships, or the per. sons or property of private men belonging to the adverse nation. I mean to exelude all hostility of any kind not having for its avowed object the exercise of some influence or control over the adverse nation as such. I deny that public war in this sense can be made out by affidavit or by any other medium of proof than the denunciation of war by one or both of the two nations who arc parties to it. There are but three sorts of war — public, private, and mixed. Grot. B. 1, rh. 3, ^ 1. Private war is unknown in civil society, except where it is lawfully exerted by way of defence between private persons. To constitute a public war, at last two nations are essential parties, in their corporate capacities. Mixed war can be carried on only be- tween a nation on one side, and private individuals on the other. There is no fourth kind. Grot, ut supra. The right of one nation, or any of its citizens, to invade another, or enter it and do any harm to its property or citizens, does not arise till public war be lawfully denounced in some form. It does not arise where one nation has a quarrel with private persons being within the territory of another. Whether there be any exception to this rule, I shall hereafter inquire. Much was said in argument on the assumption that the state of hostilities on the frontier amounted to unsolemn war. In supposing this to be so, counsel come back to the very error which they repudiated in more general terms. A war is none the less public or national because it is unsolemn. All national wars are of two kinds, and two only — war by pubhc declaration, or war denounced without such declaration. The first is called solemn or perfect war, because it is general, extending to all the inhabitants of both nations. In its legal consequences it sanctions indiscriminate hostility on both sides, whether by way of invasion or defence. The second is called unsolemn or im. perfect war, simply because it is not made upon general, but special declaration. The ordinary instance is a commission of reprisal, limiting the action of the nation plaintifi^, to particular objects and purposes against the nation defendant. It supposes a partial grievance, which can be redressed by a corresponding remedy or action ; and does not authorize hostility beyond the scope of the special authority conferred. Such are several of the instances I have just now mentioned. But they are no less instances of public war. The attack on Copenhagen was mentioned on the argument as an instance of unsolemn war. So indeed it was. The British admiral had a deputation from the war- making power of England to act against the war-making power of Denmark ; to demand the surrender of the Danish fleet, and, on refusal, to destroy public or private property, or take life, not as a punishment of private oH'endcrs, but to coerce the nation. Why was the attack made ? — Because Denmark would not surrender her navy voluntarily ; and there was danger that France would take it either by force or under collusion on the side of Denmark. Those who were in arms on the side of Denmark, acted not in their own right, but as agents of the nations to which they were subject. Before the remotest analogy can be seen in this to tiie case at the bar, the United States must be brought in and made defendant in their corporate capacity. It will be seen, I trust, by this time, that the instance derogates not in the least from the distinction that runs through all the writers on the international law, viz, that whether to constitute solemn or unsolemn war, the authority to act must emanate fi"om the war-niaking power on one side, and be intended to influence that power on the other. Action under such a power is necessarily a collision between two nations ; and answers to Grotius' definition, viz : " That is a public war which is made on each side by the authority of the civil power." B. 1, ch. 3, § I. At § 4 he divides this sort of war into sjoleinn and unsolemn, of which latter he gives an instance in B. 3, ch. 2, ^ 2, N. 3, Vid. Also 2 Ruth. p. 507 & .548. The distinction has been followed to this day, though the legal character of unsolemn war has since been changed. " Both," says Rutherforth, " are now lawful. The only real effect of a declaration of war is, that it makes the w ar a general one ; while the imperfect sorts of war, such as reprisals, or acts of hostility, are partial or arc confined 1. I 1 30 GOULD S REPORTER. i! V *il I! 'IW I :\'t i!'!i| :3 pnrtjrular persons, or tilings, or places. In solemn wars all the membera of one nation .ict iijjainst the other under a general cuintiiiasion ; wheresis in publie wars which are iiot solemn, those members of one nation who act against the other, act under particular /;ommisHions." Ruth. B. 2, ch. 9, § 18. Vattel, B. 3, ch. 15. Both sorts of war are lawful, because carried on under the authority of a power hav. ing, by the law of nations, a right to institute them. In any other war go belligerent rights can be acquired. All captures, all destruction of property must be illegal ; and ihe taking of life a crime. Short of this, war cannot be carried into an enemy's coun. iry, for the simple reason that there is no war to carry there, and no enemy against whom it can be exerted. The nation denouncing war must be explicit. " This makes it," says Vattel, " formal, and so lawful. But nothing of this kind," says he, " is the ease in an informal, illegitimate war, which is more properly called depredation. A nation attacked by enemies, without the sanction of a public war, is not under any obli. gallon to observe towards them the rules of formal warfare. She may treat them as robbers." Vattel, B. 3, ch. 4, § 68. Such unauthorized volunteers in violence," says Blaekstonc, " are not ranked among open enemies ; but are treated like pirates and robbers." ft was accordingly conceded, in argument, that the Canadian provincial authorities had no inherent power to institute a public war. Vide 2 Ruth. 496, 7, 8. We were, iiowever, referred to Burlcm, Pt. 4, ch. 3, § 18, 19, to show that those authorities might do so on the presumption that their sovereign would approve the step ; and that such approbation would reflect back, and render the war lawful from the beginning. On the assumption that this indirect mode of instituting war had actually been resorted to, counsel again bring themselves back to the fundamental error which led to this applica- tion. No one would deny that if the affair in question can be tortured into war between this nation and England, the United States might take possession of McLeod as a pri- soner of war. In such a case, there would have been no need of this motion. But admitting the rule of Burlemaqui, and that counsel might, by the aid of England, get up an ex post facto war, for the benefit of McLeod ; this cannot be done by an equivoque ; and especially not in contradiction to the language of England herself. Neither the provincial authorities nor the sovereign power of either country have, to this day, cha- ractcrized the transaction as a public war, actual or constructive. They never thought of its being one or the other. Both have spoken of it as a transaction, public on one side, to be sure, but both claimed to hold fast the relations of peace. Counsel seem to have taken it for granted that a nation can do no pubhc forcible wrong, without its being at war, even though it deny all action as a belligerent. At this rate every illegal order to search a ship, or to enter on a disputed territory, or for the recaption of national property even from an individual, if either be done vi et armis, and work wrong to another nation or any of its subjects, would be public war, necessarily so, though the actor should deny all purpose of war. Were such a rule once admitted, England and the United States can scarcely be said to have been at peace since the Revolution which made them two nations. My endeavor has been to show, that on the question of war or peace, there is a quo animo of nations, by which we are bound. To prevent all misunderstanding in the progress of the argument, it is proper to ob- serve farther, that an act of jurisdiction exerted by inferior magistrates, civil or military, for the arrest or punishment of individuals, is not public war of either kind. So long as the act is kept within legal compass, though its exertion be violent, where, for in- stance, the object is to suppress a riot, quell an insurrection, or repel the hostile incur- sions of individuals, it is, though sustained by a soldiery in arms, only one mode of enforcing the criminal law. It is like calling out the militia as a posse comitatus to aid a sheriff who is resisted in the execution of process. Force becomes lawful where the laws are set at defiance. We see this in the frequent resort to soldiers of the regular army by the English, in cases of dangerous riots. — Vid. Ruth. B. 2, ch. 9, § 9. Such a state of things, therefore, confers no right to act offensively against individuals who re- side or sojourn in the neighboring territory. Should they be pursued and arrested, or killed, the act would be a naked usurpation of authority, Hke the sheriff of one county going into another to execute process. " If," says R""V;"rforth, B. 2, ch. 9, § 9, " the magistrate, in any instance, use even the force with v nicii he is intrusted in any other manner, or for any other purpose than is warranted by his appointment, this, as it is his own act, and not the act of the public, cannot be called public war." Sensible that all pretence of belligerent right was wanting, it is therefore, in the first view, a lawful act of magistracy that the case was sought to be put by Mr. Fox, both in his letter to Mr. Forsyth and Mr. Webster. I take the words of his last letter, writ. I ten groil Mel ''.*'\. '.iv(; Inw, upon wluit OL'casioMs, for wiiat piirpoMis, and in what nunibiTs t'oiciniKrH t'lml! be uljowcd to uoine within its territories." liiitli. 1). 'J, t;ii. U, sec. G : X'uitil, 1!. 2. oh. 7, § IM. It I'ollowa from tho authorities cited, that ari;jht to carry on a mix-rl w ar ncvi r cxfcndi* mto tilt iLTritory of a nation at i)Lacr. It can be cxercihcd on the hi.'^li sens only, or in a territory which i.-f vacant and beloucin:? to noiiody. It is in modern law contiii'id mainly to tin ra.s(! ol' piratfs. But even these can not bo arresttnl in the territory ot' f. foreign nation at pcaco with the sovereign of the arresting ship. MoUov dc Jiir. Mar. B. 1, ch. 1, § (J. Admitiinff, then, that England might protect a in»n agtiinst our jurisdiction by saying he did a pul)lic act under her authority, does it not liehove her at least to show that she was actinif within the limit of her own jurifdiciion, especially where she has prescribed them to herself? Shall her declaration serve to dejjrivu na of power where she is f\ ceeding her own ? And this bring>< oim to inquire wheth(.'r the transaction in questii'n be such as any national right so I'ar examined can sanction. She puts herself, as we have seen, on the law of defence and necessity; ;ind nothing i-i be'ter defined nor more fami- liar in any sjvstem of jurisprudence, than the juncture of circunistances which ean alor;;- tolerate the action of that law. A force which the defender has a right to resist tn'i'-; itsclf.be within striking distance. It nmst be menacing, and a|)parenily able to iiifiici physical injury, unless ])revented by the resistance wliich he opposes. The rights of Bclf^defence tind the defence of others standing in certain relationa to the defender, d.;- pend on the same ground — at least they are linii'cd by tht; same principle. It will be PUlficient, therefore, to inquire of the riirht so far as this is strictly personal. All writer^J concur in the language of Blackstone, [3 Com. 4,] that, to warrant its exertion at all, the defender must be forcibly assaulted. He may then repel force by force, because he can- not say to what length of rapine or ci'iclty tho outrage may be carried, unless it wer« admissible to oppose one violence vth another. " But," he adds, " care must bo taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become the aggressor." The condition upon whi(;h the right is thus placed, and the limits to which its exercise is confined by this eminent writer, is enough of itself, when compared with McLeod's affidavit, to destroy all color for saying the case is within that condition. The Caroline was not in the act of making an assault on the Canada shore ; she was not in a condition to make one ; she had returned from her visit to Navy Island, and was moored in our own waters for tlie night. Instead of meeting her at the line and repelling force by firce, the prisoner and his associates came out under orders to sefk her wherever they could find her, and were in fa(;t obliged to sail half the width of the Niagara river, after they had entered our territory, in order to reach the boat. They were the assailants ; and their attack might have been legally repelled by Durfee even to the destruction of their lives. The case made by the afTidavir is in principle! this: a man believes that his nei::hbor is preparing to do him a persona) injury. He goes half a mile to his house, breaks the door, and kills him in his bed at midnight. On being arraigned, he cites the law of nature, and tells us that he was attacked by his neighbor, and slew him on the principli! of mere defence and prevention ; or, in the la.iguago of the plea, for an assault demesne — "he made an a.ssault upon me, and would then and there have beat me, had I not immediately defended myself against him; wherefore I did then and there det'end myself as I lawfully might for the cause aforesaid ; and in doing so, did necessarily and unavoidably beat liim, doing him on such occasion no unnecessary damage. And if any damage happened, it was occasioned by his assault and my necessary defence." * , J .1 'iiij; the boiindarieji of strict, not fancied necessity, the remedy lie.s in suit liy the State or citizen whoso ritjhls have been violated, or by demandiiiff the person of the mischievous fui,'itive who has l>roken the criminal law of a foreij,'n soverei^Mi. Accurdiiis^ly, PtiHiindorf, afier con. sideriiiy the rights of private war in a state of nature, adds : " But we must by no means allow nn equal liberty to the rnend)ers of civil Stat(!s. For here, if the adver- sary be a foreigner, wo may reaist and repel him any way at the instaiii when be comes violently upon us. But we cannot, without the sovereiiin's eomiirmd, either assault him while his mischief is only in machination, or revenue t)urselves upon him idler he has performed the injury agidnst us." Puf. B. 2, ch. .'>, § 7. Tlie sovereign's conmiand must, as we have seen, in order to warrant such eonduiJt in Lis subject, be a denuncia- tion of war. England, then, could legally impart no protection to her .subjects concerned in the destruction of the Caroline, either as a party to any Wa ■, to any act of public jurisdic- tion exercised by way of defence, or sendinir her seivunts into a territory at peace. That her act was one of mere arbitrary uburpation v.'iis not denied on the argument, nor has this, that I am aware, been denied by any one except England herself. 1 should not, therefore, have examined the nattire of the transaction to any consideriWc extent, had it not been necessary to see whether it was of a character belonging to the law ot war or peace. I am entirely satisfied it belongs to tlie latter; that there is nothing in the case except a body of men, without color of authority, bearing muskets, and doing the deed of arson and death; that it is impossible even for diplomatic ingenuity to make it a case of legitimate war, or that it can plausibly claim to come within any law of war, public, private, or ndxed. Even the Pniish minister ia too just to call it war ; the Bri- tish government do not pretend it was war. The result ia, that the fitting out of vhe expedition was an unwarrantable act of ju- risdiction exercised by the provincial government of Canada over our citizens. The movements of the boat had been watched by the Canadian authorities from the opposite ehore. She had been seen to visit Navy Island the day before. Those authorities, being convinced of her delinquency, sentenced htr to be burned ; an act which all con- cerned knew would seriously endanger the lives of our citizens. The sentence was, therefore, equivalent to a judgment of death ; and a bmly of soldiers were sent to do the office of executioners. Looking at the case, independently of British power, no one could hesitate in assign- ing the proper character to sueh a transaction. The parties concerned having acted entirely beyond their territorial or magisterial power, are treated by the law as indivi- duals proceeding on their own responsibility. If they have burned, it is arson ; if a man has been killed, it is murder. This brings us to the great question in the cause. We have seen that a capital offence was comtnitted within our territory in time of peace ; and the remaining inquiry is, whether England has placed the offenders above the law and beyond our jurisdiction, by ratifying and approving sueh a crime. It is due to her, in the first place, to deny that it has been so ratified and approved. She has approved a public act of legitimate defence, only. She cannot change the nature of things. She cannot turn that into lawful w ar which was murder in time of peace. She may, in that way, justify the of. fender, as between man and his own goverimicnt. She cannot bind foreign courts of justice by insisting that what, in the eye of the whole world was a deliberate and pre- pared attack, must be protected by the law ot self-defence. In the second place, I deny that she can, in time of peace, send her men into our territory, and render them impervious to our laws, by embodying them, and putting arms in their hands. She may declare war ; if she claim the benefit of peace, as bo£ nations have done in this instance, the moment any of her citizens enter our territory. the\ and I th. •let C;i sti'ii boM sold MUrl (;u| we rive whr was coul of in may I'Jili; / MPLKOn S TRIAL. ritnr, " thn net must to avoid iho violciirr 1st \w with till lioiii'si I liy rciisoii ()(' HoiiU' him, uiid tiii'ii, in liis ?iicd nio trnaiinR of nv (if nniiirc anil of fipiil l soldiers in the day or iiiulit nine, burn llit^ boat, ami destroy llie lives of (be erew. Tliai su<'li a statute should be oxci'utt d ; but tluit one cjI' ibe soldirrs lailiiiL; lo liiiike bis I's- eajte, slioiild be arft -^ted, and jib ad the act of parliaim lit. Solicit an act would operalf well, 1 iidiiiit, at (.'bippewa, mid until the imii hud riiiilu'd ilu' thread of tin,' Niiiijarii tivvr. Il woulil lie ill! iiiipiMctrabJe shield till they fIioiiIiI eross tb(^ line of that eountrv where parliaiiicnt have jiiri-dietiun. Hiyoiid, I need not say it must be considered us waste paper. Kvcii a sulisi iiiieiit Hintiiie, rutilyiiif: and apiiroviiiit the orlHiiiid iiiiiliiiritv, could add notliiny to the protection pioH'crcd by the lirst. It would lie but the jimciioii of two nullities. So says Mr. Locke, (on Gov. li. :J, eh. Ill, sect. !^3!),) of a kiiiu even in Ilia own doiniiiions : " In svbatsoever he has no aulhority, there he is no kiiu,', and may be resisted ; Cor wheresoever the authority eesises, the kiiiL; ceases too, and become,- like other men who have no authority." I shall not cite books to show that the Queen of Enplund has no authority in this state in n time of peace, I will suppose a stronger case ; — that England, being at war with France, should, by statute or by order of the Queen, auihorizo her soldiery to enter our territory and make war upon such French residents as might be plotting any mischief against her. Could one of her soldiers indicted for the murder of a French citizen jilcad such a statute or order in bar? If be could not as against a stranger and sojourner in our land, I need not intpiire whether the aanii! iiieasiire of protection be due to Durfee, our fellow. citizeii. " The lawn of no nation," Kays Mr. Justice Story, " can justly extend beyond its own territories, except so far as it regards its own eiiiz(?ns. Tliey can have no force to con- trol the sovereignty or rights of any other nation within its own jurisdiction. It would be monstruus to suppose that our revenue officers were authorized to enter into forei;,'ii ports and territories for the purpose of seizing vesscds wliieb had ollended against oui laws." The ApoUoii, 9 Wheat. Rep. 3()2-37I. He has examined the question at large in his book on the conflicts of laws, eh. 2, § 17 to 22, p. 19 of 2d ed. The result is, thai no nation is bound to respect the laws or executive acts of any foreign government in. tended to control and protect its citizens while temporarily or permanently out of their own country, until it first declare war. Its citizens are then subject to the laws of war. Till that comes they are absolutely bound by tho laws of peace. While this prevails, a foreign executive declaration saying, " My subject has offended against your criminal laws. I avow his act. Punish me ; but impute nothing to him," is a nullity. As well might a nation seed a company of soldiers to contract debts here, and forbid them to be sued, saying, " The debt was on my account, discharge my men, and charge it over against me ! " Indeed it was urged on the argument that the letter of Mr. Fox had taken away the remedy of Wells, the boat owner, by an action of trespass againt Mc- Leod for burning the boat. This action having, it seems, been settled, counsel resorted to it as an illustrative case. Another action brought against him for shooting a horse on the saiiK! occasion, it was said is also defeated by the same principle. Counsel spoke as if Sclilosser hud undergone a stick, and its booty had become matter of belligerent right ill the soldiery. Surely the imaginations of counsel must have been heated. It seems necessary to remind iheni again and again, even in affirmance of thrir own ad- misgion, that we are sitting to administer the laws of a country-which y/aa at peace when she sent in her soldiery. If they mean that the ajiproval and demand in Mr. Fox's letter should, ueder the law of peace, have the sweeping cfleet which is claimed for it, (hey are bound to show that the royal ninndatc improves by importation. The Queen has no power at home to take away or suspend, for a moment, the jurisdiction of her own courts. Nor would a command to discharge any man without trial who should be suspected of having murdered her meanest subject, be deemed a venal error. It in justly a source of tho Briton's pride that the law by which his life and property an; protected cannot be suspended even by his monarch ; that the sword of Justice is boldert by her own independent ministers, as a defence for those who do well ; but constantly threatening, and ready to descend upon the violator of property or personal safety, aa the instrument of a municipal law which know ' not of any distinction between the throne and the cottage ; a law constantly struggling, iii theory at least, to attain a per- I I' til ).l U\ 36 OOm.D S RRPOKTKR. |i(l l»y nil orilcr Iroin our (JDVcriiriicnt, Mdliiii'in. Hut .should ('iiii/,'rfMS [iaH8 u fee ion ihcit nholl lirinp; all on o«rth to ilo it rrvrroncd ; tlip ffrraif.Hi at fponng ita power* iiiifl ihi' li'iiHi tin iiDi unwurthy of" iix into. 'I'liitt ciim- h our own, MiK'li wiiM Nnnl on tlir tir^funii'tit iiboiii tlut (ixtrciint Imrd^liip ni' trcutint; HoldinrM n* oriniiiials, who, il wum imhisIi'iI, urc olilit,'<'(l to iilny ilicir oovtrtiKii. 'I li" ruin in tho Honii' 111 r<'«|)(:(!t to tliii niijdicr us it in with ribald lo iiiiy ntln r njii'iit who is hound to obey the proci'HN or I'oiniiiiiiid of Ins superior. A Hliirill' n oli!ii;rd to cxi'iiili' n man who ix rt'i;ularly hc iitriH'i-d to ciipiiid cxccuiion in thiH si.if-^. Kut hIiouUI Ih' rxrouto a iTiuniii Ciinadu niidi^r Nuch hciUimu'c, hit would liu h iiiurd> nr, A rtoldii r, in tiinn ot war 1)4 Iwi'i'ii iiH mid Ktii;luiid, iniuhl hu uonip>'l N) riiicr C'lniiila and lii;ht n^'iiiiiHt and kill Iht MtHtuto ronifirliiui; him to do ho on any iiuaL;iinili|ii fxignu'y, nr uiiiUt any pi'inil'y, in (inic of pcarc, il ho Hhoiild obny mid kill a man, hr would hi' j,'iiilty of iiiiirdcr. 'I'hu mistake IS in .xupposinif that n HovurciKn cnn coiupid a nun 'o no into u iiciuhhoriiiii; I'oiiiiiry, wlii'thcr in poacn or war, and do a dnd of iiifuinv. 'I'liiw in cxciiiplilu'd in tho ouHr of spicH. A Noviu'ciijn may Rolicit and hiihd ; hut lit' (.annot I'uiiiinnnd. A liiou* HUnd comniandH would not kuvo tho ncrk of u npy HJiuuld hr ' 'o (mu/.'lit in tlii> cnnip of the cru'iny. — Viittnl, B. 7, i-h. 10, ^ 17'J. It Ih a niistakn to snpposo that a Hiddi'ir in hound lo do niiv act fonirary to the laws of imluri', at ilic hiddiiiL,' of lii.s priiiif, — VHitcl, R. I, ell. 4, I) iU— I, id. H. :«, eh. i2, .S Ifi. (Jrof. U. :», eh. M. f) 3, ii. 2 and 3. Puf. I.. H, I'll. 1. ij (i, 7. Hut if 111! wtTf, 111' iiiiiHt ciidiin' tiit! evil ol liviiif; under ii sovureii;!! who will issue siii'li i;oiiiinandH, It does not follow that iiL'ij;lihoriii;{ euuiilrics must Hub. init to he iiile.- 111! with iiu'undiarieH and UHsassiiis heeaiise im< iI are oluioxinus lo punish, mont in their own (,'ouiiiry, for hv'uxn desirous to go ihroui;ii lite with bli.odlrss hands and ■I ipiii't eoiiHeicneo. Tho I'ariniaiiH ilioui.'lit theniHelvos bound lo oliry Charles IX. wl'.e;i he ordered them lo inasHacrc the IIufriicnoLu. .Suppose ihe> had ohiymi u siniilar order to iiiassnero the Miii^ruciiots in Kngiaiid, would siieh un oril' r have been deemed a \ulid pica on Olio of them heinj{ Hrraiyncd in the Queen's !!■< mh ? It ini^ht have been pinadod to an accusation of mui'der in France — it would luue been );ood us between the rriminal and his own sovereinik; but hardly, 1 t^u^-peer, iinvo been di^enuul so by QiKMin Kli/ubeth's Juil^'es. The simph^ reason would have been that Ch:irles IX, had no jurisdiction in Llngland. lie ini^jht have thr-jateiieil liie Koveriiinent and di'clureJ war, if such a meritorious Kervant, a defender of ilie eliureh, should not he liiierated by the Judges, Hut there is no legal iiriiieiplo on whieli the ileen^es of foreitifn courts or tho li.'fjislator of foreign parliaments could have ousted the Judges of jurisdiction. Charles might have ordered hia minister lo call the mas.'^ncre a public act, {ilanned and cxeouted by himself, ho having authority to defend and protect iiis established church ; and do- manded a release of the man. All this would have added no force to the plea. Neither ICIizabeth herself, nor any of the Tudors, arbitrary as the government of KrrglBiid wwa, would have hat} power directly to take away the jurisdietion of the Judges. Coke, with a law-book in his hand, could have baflled the sceptre within its own territorial jurisdi'*. tion. It should, in justice, be remarked, that one, tin- Governor of Bayonne, and many of Ilia companions in arms, refused to co-ojierate in the massacre at home, and were never punished for disobedience. He replied to the king ; that he hud sounded liia gur- rison, and found many brave soldiers among them, but not a single executioner. Sup. pose a prince should command a soldier to commit adultery, incest, or perjury ; the prince goes beyond liia constitutional power ; and has no more right to expect obedience than a corporal who should summarUy issue his warrant for the execution of a soldier. Vid. Burl. L. of Nature. Vol. I, 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 govern- ment. Public war itself has its 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 jurisdic- tional restraints, as there are in courts of justice. An order emaimtlng from one of the hostile sovereigns will not justify to the other, every kind of perfidy. The case of spies has been already mentioned. An emissary sent into ;i camp with orders to corrupt the adverse general, or bribe the soldiery, would stand justified to his immediate sove- reign. Vattel, B. 3, ch. 10, § 180 ; though I'venhe could not legally punish a refusal. In respect to the enemy, such orders would be an obvious excess of jurisdiction. The enns- saries sent by Sir Henry Clinton in 1781, to seduce the soldiers of the Pennsylvania Una, falling into the hands of the Americans, were condemned and immediately exe. cuted. 4 Marsh. Life of Wash. 366, 1st edit. Entering the adverse camp to receive 1 I Ifl tl; P< b. mn: Hn -^c.. mcleod'.s TKIAL". 37 : franng iw power, rrutiDi; Miililii^rM u% I. '1 li'! riild iH tliu a wfiii iM liimnil to to fXi.'Liiic n man loulil he cxrnuto a :lii in lliM cnnip of iO tliat a Holilier is iH priiu'c. — Vtiitol, 2 iind 3. I'ul'. 1.. undrr a .sovoiniifti jiintrit'i must Hub. iDxious to imnish. I'odliris hands and Ciiarlijs IX. wfifu otl u Himilar ord'r iMi deemed a vulid mi/uiil liave been );ood UM botweei) ■on dccinod so by t Clr.irli'8 IX. had ent and dt'clan^d •Ji be libiratod by cign courts or ilio ^diction. Charles tied and cxi^juted church ; and do. lie plea. Neither of KrrKland was, ?ee. Coke, with rritorial juinsdir. yonne, and many home, and were sounded his gar. ecutioner. Sup. rjury ; the prince obedience than a Koldier. Vid. may indeed take ds ; but even his foreign ju^ovcrn- pursuit after a CO. Besides the r, other jurisdic. from one of the 'he case of spies rdcrs to corrupt mincdiate eove- sh a refusal. In lion. Thceniis- e Pennsylvania nmediately exe- :ainp to receivo the tn-achrroun prnpodiiinii of the jjriiera! ih nii offence much more venial. It m even rallird lawful in every .seiiic t\n between liii' Miiveieij(ii niid emplovee. Vatiil, H. U, ch. (0. ^ \H\. Vet in the cane of Majiir Aniiri', iin order to di> an excess o| jiiriHdieiiciti. Tlie.^r ciiKeH ore inu( ii Hiron^'cr than any which can he !>iippoiied betwrni nntion** ui pence. Ill time of war nuch |m rlidy in expei'led. In tiiiiP of peace, every citi/en, whih t*Jthin luH own l»rriu>ry, \\ns a double rii,'lit to Hupp'>>-e himiti If Hceiire — ilie jefjal mviola t. 'V ot' ihat lerriliiry, and the Moleinn pledge of the foreign HO\erei:rnly. lie di.Hiinciion that an act valid ax to one may lie void an to another, is entirely fanii Uat. A man who orderH imolher to commit a tiespass, or approvts of a ir(;«pai*< already committed for his benefit, iiiiiy be bound to proteci bis servant, while ii wouht take nothinir troni the liabiliiy of the Hcrvimt to the parly Mi|ured. As to him, it could merely have the etl'ect of addiii),' another defeiidiini, "ho minht be made iniiiiK or Hcverully liabli' with the actual wromj-doer. A ciihc in point is nieaiKuied by Valtel, K. 3, eh. 'i, fj ir>. If one soverri^'ii urder his recrnitini; olVicer to make enlistments in the diimiiiion of Hiiother in time of peace beiweeii them, the otlicer ^hall be hanged notwiihstandiiitj the order, and war may also be declared agaiiiNt (he otfeiidin^; suvereigii. Vid. a like insiaiire, id II. 1, ch. (J, ^ ICt. What is till- utmost legal effect of a foreign sovrreigii, approving of the crime hi^ .subject committed in a neighboring territory ' 'I'he approval, as we have alread> in part .seen, can take noihiiig from tlu^ criminality of the principal oll'endcr. Whalover obligation hi.s nation may be under to siivc him harmless, this can be absolutely done only on the condition that he confine himself within her territory. Valtel, H. ij, ch. fi, /) ~4. Then, by rcfii.sing to make saiiKfaction, to furnish, or to deliver him up, on de- mand from the injured country, or by apjiroving the oll'ence, the natiiui, says Valtel, becomes an accomplice. Id. .sec. 76. niaekstone say.s, an nccomplice or abettor — [4 Com. 68] — and Rutherfortli, still more nearly to thi^ language of the Miiglish law, an acecssory after the fact — H. 3, <'h. 2, § li}. No book supposes that hucIi an act merges the oriu'inal olfence, or renders it ini|iutable to the nation alone. The only exception lies in the case of crime commiiit^d by an am- bassadur — not because he is guiltless, but by reason ot the iiccessiiy 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, ho can be proceeded against no otherwise than by a complaint to his own nation, which will make il.self a party in his crime, if it refuses either to punish him by its authority or deliver him up to lie punished by the otfended nation. Kuth. B. 2, ch. 9, () 20. Independently of this exceiiiion, there fore, Rutherfortli insists, with entire accuracy, thai, " as far as we concur i.. what another man does, so (iir the act is our own ; and the effects of it are chargeable upon us aa wrll as upon him." Ruth, R 1, ch. 17, ^ 6. A nation is but moral entity ; and in the nature of things can no more wipe out the oflenca 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. 15. 2, ch. 9, §12. " Nothing is- more usual," says I'ufl'endorf, " than, lhat every particular acc.om. plice in a crime be made to auficr all that the law inflicts." B. 3, ch. 1, § 5. Vattel says of such a case, B. 2, ch. 6, § 75 — If the oflcnded state have the oii'ender in her power she may without scruple punish him. Again, if he have escaped and returned to his own country, she may apply for justice to his sovereign, who ought, under some cirrumstances, to deliver liim up — id. § 76. Again, he says, she may take satisfaction for the offence herself when she meets with the delinquent iii her own territories. B. 4, ch. 4, § 52. I before cited two instances in which positives orders by his sovereign to commit a crime are distinctly held to render both nation and its subject 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 M cLeod arose, that the approval by a monarch should oust civil jurisdiction, or even so much as mitigate the criminal ofl'ence ' — nay, that the coalition of great power with great crime does not render it ntore dan- gerous, and therefore more worthy of punishment under every law by which the perpe- trators can be reached ? Could opprobation and avowal have saved the unhappy Mary Queen of Scots, where would have been the civil jurisdi 'tion of Elizabeth's commissioneus ? The very charge of an attempt by Mary to dethron-.- and as.sas8inate the British Queen implied the appro, bation and active concurrence of one crowned head at least. Could the criniinai have i *, I ;i ■f 38 GOULD S REPORTER. '!l been saved by "".y such considerations, the cnterprize mirjht truly hnvo been avowed as one which had t)i'i>n planned by the leatlini,' government ot' Caihohc fc]ur()[)e. The Pope, then, havin'r at h;iwt some pretensions to jurisuici.on even in England, had openly approved it under his seal. The Spanish ambassador at Paris was a parly relied upon to ibjlow up the event with an invasion. Would James, the son of the accused, have hesitated to join in the avowal could he have thus been insirr'nental in saving the life of his mother ? Yet the principle was not thought of in the wliole course of that (■xtraordinary ntlair. Mary opeidy 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 (not 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. Vid. the case stated and ex- amined in »ho right of international law, 2 Ward's L. of Nations, 564. No one pretended that her approbation, or that of a thousand nionarchs, could have reflected any degree of exemption from judicial cognizance, upon the alien servants in her employment. Such a priniiiple would have fdled England with an army, in time of peace, disguised as .Jesuits ; for the bigotry of nionarchs would, at that day, have led them to avow any system of pernicious espionage which could have served ttie purposes of the Pope by executing his IJuU of excommunication against Elizabeth. Canada again being ditjturbed, 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, I)y avowal, protect her soldiery who steal upon our citizens at nii('"!ght, from all punishment at the common law ; and before' you get < yen a remonstrance from Washington, your whole frontier might be made a tabula rnza. No. Before England can lawfully send a single soldier for hostile pur- poses, she must assume the responsibility of 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 public authority on this side the line, when it sought to cover even territory to which the United States de- nies 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 cen- sor, in what book, or in what usage could she have found that 'his would divest her courts of jurisdiction, and put the cabinet of St. James to a remedy by remonstrance or 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 mean time, all power of her courts over the homicides had been suspended, or finally withdrawn ? But it is said of the case at the bar, here is more than a mere approval by the adverse government ; that an explanation has been demanded by the Sec-etary of State, and the British Ambassador has insisted on McLcod's release, and qounsel claim for the joint diplomacy of the United Slates and England some such clfect upon the power of this court as a certiorari from us would have upon the 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 wiih and supersedes our own. To such an objection thc' answer is quite obvious. Diplomacy is not a judicial, but executive function ; and the objection would come with the same force whether it were urged against proceeding in a court of this State or the United States. Whether an actual exertion of the treaty.making power, by the President and Senate, or any power, dele- gated to Congress by the federal constitution, could work the consequence 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 tlie Executive of this State, might not par- don 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 na- tional government blotted out, and the State of New York left to take its place as an independent nation. 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 "111 ;^ MCLEOD S TRIAL. 39 hnvo been avowed as ic Europi'. ' vcn in England, had rLs was a parly relied 3 son of the accused, ■'nental in saving the whole course of that ice and protection to Elizabeth. Yet the se technical) that the be tried under the added that she came protection from the c case stated and ex- iionarchs, could have the alien servants in an army, in time of . that day, have led I served the purposes ;abeth. by boats, provisions, iduct to be put down ict her soldiery who ion law ; and before ' ier might be made a Idler for hostile pur- lerfectly understands r public authority on le United Slates de. territory under the il magistrates. Had sent to aid the cen. is would divest her by remonstrance or ! had killed him, and she have thought of lioniicides had been oval by the adverse ••etary of State, and ounsel claim for the ; upon the power of of general sessions, list McLeod in this the action of the s not a judicial, but rce whether it were Whether an actual or any power, dele- lequence contended ! nation — supposing tate, might not par- ;rations with which very well organized le so, were the na. take its place as an f crimes exclusively a sound policy, can I :•£ It be confided to the executive power. That can n'.ver act upon the individual offender, but only by requisition on ilu^ furei;,Mi governniiiit ; and in the instance before uh, it has no pu.ver even to in; It MCLEOD S TRIAL. 4& ■^ 44. EXAMINATION OF IVITNESSES FOR THE PROSECUTION. William Well-'i, tlic first witness called and sworn, was examined by Mr. WooiIh. He said : I reside in BuiFalo. I was born there. I am now 35 years old. In Deccnibcr of 1837, 1 was owner ol" the steamboat Caroline. 'Wht;n I bouiilit her, she lay in the slip or ship canul at ButlUlo. 1 fitted her up immediately, and on the 29tli of l)(;ceiiiber I ran her down to Schlosser. I lay up that night at Schlosscr about six o'elock, and made her fast by a chain cable. There is a frame dock there, made of timber. After supper I set a watch, and did what is usual on steamboats. I gave each man his duty and retired to rest. Sylvanus Stearing was on deck. About 12 o'clock I was awoke by the hands of the vessel, who com- plained that their berths were occupied. The hands had been to Niagara Falls, and when they returned, they wished to have their berths. 1 told the strangers who occupied them, that the condition on which they were permitted to occupy them, was, that they should be given up when the hands returned. Those persons were strangers to me, and had come on board for lodging for the night. Afterwards some one put his head into the cabin, and said a boat was coming, with men in it. I do not know who informed me, nor whether it was to inform me alone. Captain Ap- plcby and myself directed him not to let any one come on board, but to see who they were. He stepped from the companion-way, and then said there were four or five boats full of armed men coming, and he called to me to come on deck. I got out of my berth and was dressing, and I heard a terrible uproar, and men on board ; I heard the report of one or more pistols or guns, and the noise of feet on deck. There was much hallooing and noise: I stood by the side of my berth until I was dressed; I made up my mind that they wanted the boat, and thai that was till the harm they would do ; I knew they had possession of the deck, and I secured my papers and little effects in the berth, and started for the companion-way. Before I could get on deck I heard orders given to give no quarter, but to kill the damned Yankees, or words to that effect. I asked Captain Ap- pleby what we should do ? He said he did not know ; we must do as well as we could. I did not get on deck. Capt. Appleby placed one foot upon deck, when some one on the cylinder took hold of his collar and shoved him back, saying they would kill him, which crowded me down stairs. I went back below, turned round to the right to pass forward of boiler, which was below deck, to make escape from forward hatch ; while I stood looking, a man jumped down into fire-room ; I was sta.nding aside of and little back of front of boiler in the dark ; he turned round, took poker, and commenced poking the fire, as I supposed, to get up steam to take off the boat ; I stood till he was busily engaged, then went back to the cabin stairs ; I went up, intending to run out ; ascended on hands and feet ; I put my head up to the cabin door, which was open, brushed against the calf of a man's leg standing on the stairs ; was not yet at the top of the steps ; thought he felt it, and sprang below ; turned round and went forward again ; run against some one, supposed to be one of the at- tacking party ; he spoke ; I knew his voice ; did not name one of his men in the boat ; passed each other — he to the cabin, and I to my first position m f. m if 1 .ll !! 1 n 46 Gould's reporter. near the front of the boilrr, looking for n dmncc to escape up tlio forward hotch ; mini raLscd up from furnace, stepped in front of ni(! and seized a man l)y the eollar who wuh concealed in the wini' iiH! jind scizod a (■ bo.'U, and pidlcd ip ; lit) said Ikj bo- li(! stc|)p(:(| aside, 1 pulled jiim along lid blow his brains ro followed ; held ang on dock ; in- rf('« was on duck t(» get, on shore, hole eight inches im ; put head out, n, threw ofF ovcr- ole, and saw boat id thrown painter with the current, loat registered 46 )m the boat to the escape ; returned ■indow.s had been there ; went aft, ien, and saw two swinging with the ! cabin, to act ac- Jtairs to deck en- lo one standing ; at or near stern rod d n, why out, saw no one, •ee men standing id determined to e boarding pike; looked at him ; ised the third to- olT, placed hand I ; drown these ; d, told him I did istol -fired behind »t behind wheel- road saw a man !et from edge of d to river ; boat larf ; could step mre house ; bow house ; three or rom the house; railroad track I inner edge of rn little east of looked a mo- party ran from boat; cast ofT and towed into stream. Snpposfd mon were after him; spoke to tlicm ; well bitys, how (Idoh it g.); nicogni'/.fd two of his own men; .loliu H. Siuilli ; asked where rest oi' hands; asked for King; did not know ; saw King coming in the road ; went \o im-et him ; saw he was hiu't. You are hurt? Yes, they have cut nie almost to pieces. Assisted him to the house. Cuiild see without recognizing a nian four or five rods; partly starlight. Would have to be well aerpriinted with person and dress. Did not see Durfec again till next morning; h(> was then dead ; lying on his back, between inside track anri warehouse ; arms crossml on br(;ast ; brains blown out and scatteri.'d on the ground ; h(;ad shattered to pieces; ball entered at back of head, came out near middle of forehead ; puddle of blood near him. ^Jaw his cap at the house ; was what is called a sealet cap ; found a hole just above the band behind, and another above vizor, in front ; cap looked as if singed behind ; blood and brains covered a small space where his head lay before he was turned over on his back. Boat was boarded, he thinks, about 12 o'clock, but cannot say. Don't know how many assailants, but think,s forty or fifty ; wen; five yawl boats ; carry about eight or ten men comfortably ; the men or watch on boat were not armed, nor were the men lodging on board arnncd. To his knowledge no arms belonging to boat. About 33 persons on boat. The men "ho came on board had been left by cars. Field's tavern was full, and could not get supper or lodging, and received permission to lodge on board. Durfee did not belong to boat ; was one of the lodgers. Schlosser is in town and county of Niagara, two miles above the falls. Search was made next day for the men on board the boat, of whom seven were missing; two of them prisoners; the rest never heard of. When King reached the house found a bad cut four inches on left shoulder, another on left arm below elbow, as if received in warding off blow of sword. Others wounded. John Leonard received a blow on forehead. Captain Harding received a blow cutting leather front of cap, and skin on forehead. The object in running boat was to make money. Boat made three trips that day — started at Buffalo, landed at Black Rock Dam, Tonawanda, Navy Island, and Schlosser, and made two trips from Schlosser to Navy Island. Carried passengers both ways, to the Island and back, and what freight offered, to the Island. Brought none back. Captain G. Appleby acted as captain that day. Neither boat nor I had any connection with men on Navy Island. Thinks Durfee's not the same body saw previous evening. It was not King. Heard 40 or 50 shots fired and clashing of swords. Men on boat had no swords to my knowledge. One party boarded at forward and one at aft gangway. Were lights on board in lower cabin ? There was light in companion-way, but don't know if lamp was there — thinks it would not have been lighted from any other place. Put out the lights after they were boarded, to prevent their coming in the cabin. Cross-examined by Mr. Spencer — The light was immediately extinguish. ed in companion-way. Boat was of peculiar construction, and a stranger could not well find his way down in the dark. Had but two hands on the boat. King and a black boy ; found but one person killed. Cannot name any person missing ; and do not know those inquired for on the boat. Did not see D. to know him till morning ; saw no other blood. Durfee seemed to have fallen and died on the spot : is quite sure cap was scorched ; knew whether cap i. ■' I'l i^4 Wf' :■■ ; 46 (iOULU S REPORTER. • 'P p! -iij'l Kili was Hcorcliinl or not. liiiko ICrio usually closes lOth December. Boat had b(! vade At with diiti; do w caii, \\v •^^Mi_ 1 3mbcr. flofit had liiid furniHlird the II ship ciinal — cut f^ivoii or written iri(!. IJiidf rstood i|)[»o.scd to indt.'in- it was dune aiid ly live. Luiided t iishorc! by order lard ; don't know including hund.s, got hnlliards for Men ciiriio on e no armal tncn ;ir hiinds. Liuid I'Upied will) loo'.- ! much what was appiicutioii for SG of boat. Ex- [!ij Sehiosser and ;lit ; tliis was the eniployid nior.) ai' the engin(!orM Id not bo safe to 7 from curiosity. n Sehlossscr. A ended for. Did L Tlionght the ion would return cross 1o Canada, ember ; crossed pieces cannon ; ted towards the ing either way. know who paid eceived eight or nber any items e dollar from a iiil — don't know '*favy Island that been firing be- to favor men on 3 took down the ling down with lid make money tee at Bufluio ; Vavy Islanders ; [Jndorstood Dr. not pay for boat feet. Would or other service repairs. Cost -^ MCLEOD S TRIAL. 40 $100. Think I furnished the money. Mr. Swaiiton says he thinks he paid it. ami 1 am very ciTlain 1 fiu'nislii!il it. Purchased 1st Dicenibcr, and I'liniineiiCMl rrpairiuLf i iudi:it''ly. Did not repair for this service ; intended to run li'T to (lattaruug'is Creek, to be above the ice wlirii lake broke up in llie s|)!-ing. Hoal e(jst fJil'SllO— .l" John 1'. Murriiy, bill of sale in his name — made I'w bargain with I*. II. limkin. .M-'etiu'^' at Hullido theatre — .sympatlii/iiig with Canadians. .M.- Ken/it; of (Janada spoke. Don't know whether then; was a proctissioti or martial music. Undiu'stood the ol)|ect of the islanders was to froo Cuiada, that they intended l(» in- vade Canada. Attorney (ieneral — .\in not connected in any way, op >nly or secretly, with the islandi;rs. Undi'r.stood iIk; nniuing of the boat would acconimo- date the islanders iind people in IJullalo, ami denied havinti; any thing to do with b )nd. Went in good faith and vtuly for i^ain. Hole in liutk of cap, soinid in front, triangular. \)ou'\. know of his own knovvl(;dge that the committee of thirteen existed. Don't know whether I invited tin: engin(;ers to go, they always go on the lake by courtesy, and 1 asked no (|U<'stions. Spencer — Did not take caimon balls i'rom W.'s furnace. Don't know they were taken. Cask was a quurtt.'r cask. Did not take boihn- iron punchings. Collector told me I coidd carry any thing — arms and annmi- nilion as freight if I would run the risk of being taken iti the Hritish waters, without violating a llnii(;d States law. Don't recollect taking a cask of boiler punchings from Black Rock. Adjourned to a quarter before 8 to-morrow morning. Second Day of the Trial. Daniel J. Stewart was the first witness called this morning Ho was examined by Mr. Hawley. I reside in Buflhlo. I resided there in December 1837. I was on board the Caroline at Sclilosser. I left Buffalo in her about 8 o'clock in the morning, touched at tlie Island, and then proceeded to Schlosser, where I arrived about two o'clock. We made two trips to the Island afterwards the same day. We tied up at the wharf about six o'clock. The boat lay with her bows up stream, moored to the wharf. I was called on watch at 12 o'clock. About half an hour after I and Capt. Kennedy came on watcli, we discovered boats nearing us. My first impression was, they were Indians ; the woods making a considerable of a shade on the water, it was hard to tell what they were filled with. I mean the wooden buildings. Some of those boats were opposite the bows, but oft' in the stream a little when I saw them ; they were inside of the small island, which lies eight or ten rods from the dock. It may be more ; I merely guess, perhaps it is twenty rods. I told Captain Kennedy he had better call them up from below — from the little cabin. The boats that I saw, I think were floating down stream ; they did not use their oars I think. Capt. Kennedy called those in the cabin. There was a man w^ho came on deck just before j his name was Nichols, and he hailed them. He asked, "who comes 7 '. II ^''i lt:;|i 5U (fOULR » REI'OUTER. there?" The nnHwer WHS, " frlcmls." They nppoiiicd to spriiip on their nmH then, as if ihey round they were (iJsoDVi'red. \\ hen Nieliols hiiih'd, lh<' hrst boat was not inr)ie tlian three or I'onr rods from lh<' how ol' the hoat ; one hoat ran down t tiiMc I had w himself in an )rd«'rc(l liis jncn e act of pottiiifr thp .'iliirni thiT(.'. ailor (Mionre than any thinp else. 1 don't remember doinjr nny tliintr <»ii hitard. There were perhaps seven w lor whal jnirpo e th" boat was taken down lo Schlosser. At Navy Island some few things were put ashore, but 1 don't know what they were ; I did not handle them. Soirnj men J)erhaps went ashore at Xuvy Island, hut they retiirn<;d again. I tliiidi. none stayed ashore there. Wc then went lo Schlosser, and there they took on some ihinirs lor the Island. On one of the trips ihey took some straw, and one pieces of cannon. There was a (piarter of beef too, and some boards, I think. I saw no other provisioi»s, or mnni- lious of w.ir. These are all I saw. A good many men passed over from Schlosser to Navy Island. I ean't say how immy, perhaps lil- tcen or twenty. I can't say as to their being armed. Some might li;ive been so, bat I dcni't recollect seeino: any arnu'd men laiul on the Island. I saw one or two innskets standint; in a corner in the ladies' cabin, but I can't say if they were landed at Navy Islatul. I saw no armed men on the boat al all. I did not go ashore at the Island. I had never been at Schlosser before. There were a good nniny men there. They appeared to be going and coming the whole time, but I can't say as to their nnmbers. I was not molested in getting ashore on the night of the attack from the boat. I saw two or three persons pass ashore ahead of me. Those are all I saw go ashore. I don't know the weight of the can- non wc took over, but I heard it was a six-ponnder. I only heard the bout was going down the evening before she went down. I re- side now in Buffalo, and have resided there all the time since the occurrence. Frederick Emmons Exnmincth — I reside at Buflalo ; lived there in December, 1837. On the night the Caroline was destroyed, I was staying at the inn, at Schlosser. (A map was here handed to the wi'.ness.) I believe this map to be a correct map of the localities of Schlosser. The small island in front of Schlosser, is called Horner's Island, and is about 30 rods from the wharf. When the attack was made on the Caroline I was iri bed at Field's house. To a question by the Court. — The length of the wharf up and down the river, is perhaps seventy-five feet ; the warehouse occupied thirty or forty feet of the upper part of the dock, so that it left at|out thirty-five feet of docking below the warehouse ; tiie dock extended into the river ; the lower front of the warehouse was open to enable boats to load and unload ; the upper part was closed ; the floor oi -^ the docking constituted the floor of the warehouse; the railroad /.^:^; '■! ,..r ,:.t 52 GOULD S REPORTER. • :l ■*> I track was below the warehouse ; there were five or six feet between the railroad and the warehouse ; the floorinof of this dockinfr had holes in it to the water ; there is very little business there, and it is not kept in jrood repair. By Mr. Hawley. — I was roused from bed by some one who said the boat was attacked. We ssillicd out, and I went partly down to the warehouse. I was not armed. I knew Amos Durfce ; I had known him for a number of years. I went, down to the warehouse after the boat was hauled off; I went down in ten or fifteen minutes after — the row boats were still in sight. I found Durfee on the railroad, twelve or fourteen feet from the river ; he was on the dock, between the rails of the railroad ; his head lay from the river ; I turned him over and recognized him ; there were two or three others with me, and we had a light ; he seemed to be dead ; I left immediately after, and went to Buffalo. On examining Durfee, I saw he was shot in t.hc back part of his head. 1 think Capt. Appleby was with me, and Capt. Haggerty. I think Durfee's cap lay near him. I saw the body of Durfee afterwards, in Buffalo; he was laid out at Baldy's. Where Durfee lay I should think it would be sharp shooting to reach him with a shot from the tavern. I went on board the Caroline, after she was tied up that night, with Durfee. I did not see any arms on board the Caroline. Fields, who keeps the public house, is my brother-in-law, and I am much at home there. During the time the boat was attacked, we feared the house would be attacked also, and we looked for arms, but could only find one musket about the pre- mises. When the row boats cast off from the Caroline, they went in the direction of " Horner's Island'* and Chippewa. The planks of the floor of the warehouse lay loose. It was not used a great deal. Cross-examined by Mr. Spencer. — I resided at Buffalo at that time, I was then at Schlosser only for the night. I assisted my brother-in- law in the Inn. I was there frequently for two or three days at a time. I was not there when the party took possession of Navy Island, which was about the 17th or 18th of December. From that time to the 29th, I cannot say how many days I spent there. I was there three days at a time. There were arrivals from Buffalo, with what, I cannot say ; they crossed over to the Island. The Attorney General thought the Counsel was traveling too far in his cross-examination, when he inquired what other boats car- ried. Judge Gridley said it was desirable to be as brief as possible, and to ask no more than was necetisary to give the Jury a history of the the transaction. Mr. Spencer assented, and the examination was resumed. Witness — I saw a piece of ordnance go over in a scow boat, and I saw armed men go over. I was on the island the day the Caroline was destroyed. The musket found a* Field's tavern on that night, was discharged once by Captain Keeler. He ran out in the road and fired it off. I did not see which Avay the gun was pointed. After the Caroline was turned loose she grounded and remained so until she burned near the water's edge. Tlie stream there is 5^ knots. The -^. MWI currei knots By By Carol! By the ic out ; passei was gi that w not gc ways ; passei was tc Niivy Islaudi Mcleod's trial. 53 et between )ckiiijT had e, and it is rho said the ^wn to the had known se after the tes after — e raih'oad, k, between urned him s with me, ately after, as shot in h me, and w the body ^'s. Where reach him R, after she r arms on se, is my 3 time the [ also, and t the pre- ey went in inks of the deal. : that time, >rother-in- days at a of Navy rom that !. I was falo, with ig too far )oats car- sible, and )ry of the oat, and I Caroline at night, road and I. After so until lots. The 3 i current on the Canada side is 6, and on the American side about ;") knots. By a Juror. — I saw Durfce after the gun was fired from the house. By Judge GiiiDLEY. — The gun was fired while they were casting the Caroline loose. By Mr. SrENCER. — I helped to get the Caroline out at Buffalo, from the ice ; I do not recollect how many were engaged in cutting her out ; I supposed she was to run between Bufliilo and Schlosser with passengers ; there was a good deal of excitement and passing there ; I was going down to my brother's that evening or , the next day, and that was the reason I assisted ; I was not engaged by any one ; I did not go by the boat, but by the railroad, which ran twice a day both ways ; 1 have seen limes when the railroad could not take all the passengers ; the curs ran near Field's tavern ; I supposed the boat was to carry passengers ; I did not know that she was going to Navy Island nor that she was to promote the interests of the Navy Islanders. By Mr. Jenkixs. — The man who fired the gun was three or four rods below the main railroad track. By Mr. Hawley. — The railroad employs horse-power. There have been two boats on, the last season, and there is one now; there was a horse express at the time from Schlosser to Buffalo; the people who went there went from curiosity ; there were all sorts of people there ; Mr. Field was out of health, and I stayed two or three days at a time to help him. By Mr. Spencer. — He had a great run of custom then. The ex- press, I suppose, was for the press. An invasion of the Island was expected from Canada, and they wanted to get information. I did not understand that there was to be an invasion of Canada from the island. They were not strong enough. The express ran from the time the Navy Islanders took possession of the Island until the Caro- line was destroyed, once a day I believe. The Attorney General here addressed the Court, and said, that the Counsel for the prisoner was going into irrelevant inquiries, un- less he intended to set it up as a matter of defence ; and, in that case, it would be well for the Court at once to decide, that the cir- cumstances now sought to be brought out in evidence could con- stitute no defence whatever. Judge Gridley said, that the particular inquiries which were now made by the prisoner's Counsel, had grown out of the direct exam- ination. But the Court thought that the details of this part of the case should be given with as little delay as possible, as they could constitute no defence. They were but the historical parts of the case, and necessary only so far as to render the testimony intelligi- ble to the jury. But, except for that purpose, they had no bearing on the case. The Attorney General again objected to this mode of cross-exa- mmation . The Court intimated again that the examination should be brief, but as the subject alluded to was part of the examination in chief, and a part of the history of the drama, it was admissible. i .if 1 '% '!- t \h ^,lf•. 1 ( ' - r t HI, •Jh 54 GOULD S REPORTER. I Mr. Spencer said he hnd finished, but nevertheless he should insist upon having out the wliolc truth of the matter. James Field — Examined by Mr. H7\wley — I live at Schlossev, and lived there in December, 1837. I kept the public house there. I recollect the night of the destruction of the Caroline. I got up; I saw Durfec about one o'clock that morning ; he was lying on the wharf dead ; he lay with his head from the water, partly on his face ; I saw the wounds ; he appeared to have a ball shot through his head ; it appeared to have gone in at the back, and come out in front ; the orifice was small behind, and bursted out in front j I should suppose he fell where he 'ay ; he lay about four feet on the dock from the water ; there was blood near where he lay ; there was not a great deal of blood, but some might have run through the plank ; 1 saw his cap ; it lay partly right off from his ear, by his head. The perforations in that were the same as in his head — one behind, and the other before. I thought the cap was singed. I kept it a year. The singe was at the back, about the small hole. Finally, I gave the cap to a man who called himself his brother. I was not on board the Caroline that day or night. Tlie people in my house that night were not armed. There was one gun in the house, and that was all. That gun was fired. The man wlio fired it stood about ten rods from the house ; he fired south, or towards the river. He fired at the men who Avere taking the boat ofT; the boat was then in the stream, but she had not got to the foot of the Island by 30 rods ; they were about 10 rods below the warehouse. A line from where the man stood to the men who were towing the boat, would go 20 rods below where Durfee was. Question by the Court — How can that be if the boat was only ten or fifteen rods below the storehouse, and the gun was fired from a point between the public house and the river / Answer. — Upon reflection, the line would pass five or six rods be- low where Durfee was lying ; the gun was fired at the boat ; I remon- strated against the gun being fired, telling the man it 'might aggra- vate them, and make them attack the house ; don't know the appear- ance a shot wound would prer-icnt. By Mr. Spenckr. — 1 lived at Schlosser Avhen Navy Island was in- vaded. It was a week or so before the boat was burned. The in- vaders, I understood, went from Grand Island. There was a good deal of passing and re-passing after the Island was invaded. The land where my house stands is about level. At that time they were carrying men and munitions of war to Navy Island daily. There was a great assemblage at Schlosser daily and nightly. Provisions were brought in on wagons and railroad cars. There were a good many pieces of artillery taken over. I cannot tell how many. I had as much business as I could attend to, and I saw only three. I saw a man go over occasionally, with a gun on his shoulder. The Attorney General, again objected to the cross-examination. The Court thought the nature of this expedition should be brought out. The Attorney General said he conceded that there was an expe- dition and great excitement, but it had nothing to do with the case :^l ■^' Mcleod's trial. •oo should insist ;hlossev, and se there. I I got up; I lying on the on his face ; gh his head ; n front ; the luld suppose dock from ! was not a the plank ; head. The behind, and it it a year. '■, I gave the )n board the t night were IS all. That ids from the at the men stream, but were about an stood to elow where /^as only ten ired from a six rods be- ; I remon- ight aggra- the appear- and was in- The in- vas a ofood aded. "The ! they were ily. There Provisions ere a good iny. I had r>ee. I saw mination. be brought IS an expe- th the case here. Before another forum Mr. Field's testimony might be neces- sary. Mr. Spkncer. — If you concede that it is all we require. The Court thought the nature of the proceedings should be made known. Examination continued. — I saw beef and other provisions carried over for the Navy Islanders ; the burn which 1 saw on the cap was round the hole where I supposed the ball had gone in. The hole was singed round, about as big as a quarter of a dollar. The cap was a snuft' color knit or woollen cap ; it was a kind of plush. The body was not moved until the next morning ; it was turned over when I then saw it. I was about ten or twelve feet north, or back of the man when he fired ; he fired ruther at random. By Mr. Hawlev. — There were militia ordered out about my place ; the militia were not ordered out until after the burning of the Caro- line ; there were marshals there to preserve neutrality. When I spoke of provisions and other things being carried over to Navy Island, I alluded to the time both before and after the burning of the Caroline. By the Court. — The beef, hogs, flour, and cannon that went over, were some before the burning and some after ; one cannon and flour went over before ; two cannon and other things after. By Mr. Spencer. — One cannon went over about a week before the lining; I was on the Island then, .'he Attorney General protested against the prosecution of this inquiry further. It was admitted on the part of the prosecution, and was not necessary to this cause. Judge Gridley said : I understand Mr. Spencer offers the testimo- ny as part of the transaction, and insists upon his right to do so I do not think those parts of the transaction are material. They are merely material in order to show the jury what was the character of the transactions amongst which the Caroline was burned. It now appears that there was an armed force at Chippewa, that there vvas a hostile force on Navy Island, and that this force was recruited by men and furnished with arms and provisions from this side, and that the Caroline was employed in transmitting them. It seems to me, that the minute details of those circumstances cannot be very mate- rial. But if Mr. Spencer desires it, I will note that he offers to prove them. « Mr. Specenr said that he intended, in a more formal way, to pre- sent he question to the Court ; he intended to show the strength and force on Navy Island ; he understood that there were twenty or thirty pieces of artill^y on it, and he supposed that this witness knew something about- it. It was a little remarkable that so many persons should get on and off it, without knowing any thing about it. The Attorney General took wide ground in his opening, and if he expected to confine the examination to the single fact that five boats came over, he was mistaken. Judge Gridley said if Mr. Spencer desired it, he would make a note, that minute evidence was offered on this point and overruled, so that advantage could be taken of it hereafter. !*■ "PiJi m 56 GOULD S REPORTER. i Mr. Spencer said at a future period of the trial he intended to sub- mit some questions to the Court respecting the strength of the force on Navy Island, the batteries there, &c. The examination was then continued. — There was a military force on the Canada shore, and cannonading from there and the Island. J. V. Hftfrfrcrty — Examined by Mr. Hawley — I reside at Buffalo, and resided there in December, 1S37 ; I was on board the Caroline when the attack was made upon her ; I was in her When the watch called us ; I am a sailor ; I sailed a vessel as master that year ; I was only a passenger on board the Caroline ; I did not pay anything nor expect any pay ; it is a custom among sailor folks not to pay on any boat on which they may travel; they are then called "dead heads," but they are required to assist on a pinch; William Kennedy was on watch, and he put his head in the ladies' cabin, on deck, and said a boat was coming ; we did not believe him at first, and nobody got up ; he went away for about a minute and then came back, kicked at the door, with an oath, and said Ave had better get up, or we should be burned up very soon ; two men then got up with me ; I went to the starboard stern gangway, next to the river, abaft the wheel house ; I saw a boat full of men — ten or twelve I should think ; they were armed ; one boat had a man standing up in her ; she stood with her head up stream, as the steamboat did ; I and the two men stood at the rail next the river, and three pistols were fired at us; one of the men fell ; I do not know who he was ; Mr. Leonard, one of the two men, started and went into the cabin ; I started to the gangway on the larboard side to go ashore, but I met men with swords and cutlasses, and could not get ashore ; they were getting out of a boat under the guard of the steamboat ; a; \ some of them were on the wharf, and some of them were on the steamboat ; I went back to the ladies' cabin to get off at the fore end of the boat ; when I got to the starboard side, I saw a man lie there ; the men were then in the act of getting on deck ; I went forward, and when I got on the forecas- tle, I heard pistols fired and clashing of swords; I imagined the par- ties were fighting themselves, and I got a chance to go ashore through the main building of the warehouse ; I saw Durfee three quarters of an hour after ; he lay on his face when I first saw him ; the boats then had gone ; I had not been asleep when the attack was made ; I had not been aboard more than half an hour ; I had been to the Falls, and could get no lodgings ; -there were fi^ve others with me ; we went on board the boat to sleep, and lay on mattresses ; I had a nocket pistol which was not loaded ; I saw no other arms; I heard no firearms discharged from on board, before I went to the gangway ; I think there could not have been any pistols discharged without my hearing them ; I don't know that I heard more than one man speak before 1 left the boat ; as I passed the dead or fallen man, I heard one man say, " give it 'em, God d n 'em." When I got ashore I heard them cursing among themselves. Cross-examined by Mr. SjI'encer — There was a light which hung m the gangway that led from the ladies' to the gentlemen's cfibin. I broke the lamp with a bolt. Somebody cried " put out the lights." There was a light forward, and also in the cabin. That light was on 1S( and MCLEOD S TRIAL. 57 nded to sub- of the force lilitary force je Islund. at Bu/Talo, the Caroline n the watch year ; I was inything nor pay on any lead heads," ledy was on , and said a nobody got k, kicked at r we should ! J I went to t the wheel think ; they ! stood with ) men stood us; one of , one of the le gangway swords and lut of a boat ere on the back to the I got to the (i in the act he forecas- ted the par- go ashore urfee three saw him ; attack was lad been to others with Lttresses ; I ler arms; I ivent to the discharged e than one fallen man, iVhen I got /hich hung en's cabin. ;he lights." isfht was on 4 I the for'castle, and I believe it was put out too. The ladies'cabin was on deck ; the gentlemen's cabin was below. I got ashore as soon as I could. The boats had not got fast to the steamboat. I saw five of them. Durfee lay ten or twelve feet from the edge of the wharf; his head was farther off. I did not help to get the boat out at Buffalo. There was another boat came down after the Caroline was destroy- ed ; she was called the Barcelona, Henry Emmons —examined by Mr. Jenkins — 1 lived at Schlosser, when the Caroline was destroyed; I was awoke by a noise in the house, and an alarm that the boat was attacked. I j^ot down into the road leading to the Falls. I heard a loud noise: there was hallooing, and guns were fired. I could not hear what was said so as to under- stand it. I remained there till the boat was got loose and set fire to ; she was towed off fifteen or twenty rods from the wharf, and ten rods down the stream. They left her, gave three cheers, and rowed up towards the wharf. We thought they were coining to burn the warehouse, but they did not. When they had gone, we went down with a light, and found Durfee. He was eight or ten feet from the boat, in a direction from the gangway, on the railroad which runs to the edge of the wharf. I saw his cap ; it is called a Canadian cap. It is of a dark color. There was not a great deal of blood there. There was one gun fired from the road. I was two or three rods from where the man stood who fired. He fired in the direction of the steamboat Caroline. The man was thirty or forty rods from the warehouse. The shot could not have gone within seven or eight rods of the warehouse. I saw no arms there more than his gun. Cross-examined by Mr. Spencer. — There was a Captain Lawton, who formerly run a steamboat, who had two pistols. I was looking at the Caroline ; and the man who fired went two or three rods from me. The steamboat was then burning. I was looking at the man with the gun ; there was a remark made, that if we had arms we could kill some of them without much danger. That attracted my attention to the man who fired. John Hat(er, — (examined by Mr. Hawley) — I live in Niagara Coun- ty. I was at Mr. Field's, at Schlosser, on the night the Caroline was destroyed. The gun was loaded with powder merely, and was fired to alarm the company that boarded the Caroline. I did not fire it. I think there was no other gun fired from the house. By the Attokney General — I was on board the Caroline that night, and did not notice that she was armed. I was aboard about 11 o'clock at night. Cross-examined by Mr. Spencer. — I lived at that time at Lockport ; I happened to be at Schlosser; out of curiosity mostly; were many there at that time ; I had not been to bed ; I had been to the Falls with some gentlemen who requested me to walk down with them ; we returned about eleven o'clock ; the distance from Field's is about three miles ; I had no particular business there, and went to Field's to get lodging ; there was no chance to get any there, and I went to the boat, but the berths were full, and I returned to Field's ; the gun was loaded in the kitchen ; a man brought it from another room, and Mrs. Field brought the powder j I stood about five feet from the man who 8 li ■ r-M,. >i ■ :ii if -I t '■■It 5S GOULD 8 REPORTER. ''\l Si; loaded it ; I might have drank some that night ; it is very natural for a man to drink a little, but I was sober ; 1 think I stated the next day, that the gun was only loaded with powder ; the man who fired tiie gun loaded it ; but I cannot tell who he was ; 1 stated it to sev- eral persfms at the Falls, that the gun was only loaded with pow- der, and I stated it to-day to Mr. Emmons ; I saw the gun fired ; it was fired about four rods from Field's house towards the warehouse ; I have stated all I know about it, and I cannot say whether it would not have answered the same purpose, if it had been fired at the house, if it were loaded only with powder. By the Coukt. — The steamboat, when the gun was fiicd, was cast off and going down stream ; but I can't say which Avay the row boats were going. The Caroline was moving down the river. The object of firing was to prevent the party from coming to the house. Cross-examined. — Mr. Emmons did not tell me to come forward and swear to the fact about the gun. I told it to him about two hours ago down by the canal. Direct resumed. — I was subpoenaed as a witness, at my residence in Niagara County, a week ago last Tuesday. I was called on to tell what I knew, I suppose. I was subpoenaed by Allen Buck, sent down by the District Attorney. I don't know that they told me or talked to me about what I could swear. Nothing was said to me about the loading of the gun, or about testifying as to that point. Joshua Jl. iS//mV//— ^examined by Mr. Hawlky. I reside in Buffalo, and did in December, 1837 ; I follow steamboating and engineering ; I was on board the Caroline at the commencement of the attack ; I was in the ladies' cabin when the alarm was given ; I had not been asleep ; I had just laid down on a row of mattresses, and the alarm was, a boat or boats are coming ; I thought it was a false alarm to get us out of our berths that others might get them ; in about a min- ute after, they came again in a good deal of alarm, and said there were boats coming filled with armed men ; we then got out ; I went to the starboard gangway and looked over ; there was considerable of a rumpus ; I went aft and saw people getting onboard from a sm.ill boat, on the river side there was a gun fired, and some one fell by my side, who apparently came from forward aft ; I thought he fell from a shot ; I was somewhat frightened at the time ; I went across the boat and went aft not very slow ; I was not armed, nor were any of the men to my knowledge ; I think there were no fire-arms dis- charged until after the alarm, and then I think there was one ; when I went aft I did not see one of the assailants' boats imder the guard of the steamboat. Cross-examined by Mr. Spencer — I went on board the boat at Black Rock dam the morning before ; I had not been down before, that winter, to my recollection ; I do not know whether the person who fell was one of the assailants or pf the persons on board ; there was a good deal of clashing. By Mr. Hawley — I was one of the " dead heads" on that occasion. James H. King — examined by the Attorney General — In Decem- ber, 1837, 1 resided in Buffalo ; I was the mate of the Caroline steam- MCLEOD S TRIAT. 69 natural for the next wlio fired it to sev- Avith pow- n fired ; it '^arehouse ; it would the house, , was cast row boats The object ie. c forward ibout two residence led on to Juck, sent at I could i gun, or n Buflgilo, ineering ; attack ; I not been the alarm alarm to )ut a min- iaid there t ; I went siderable Ti a small ell by my fell from cross the e any of rms dis- e ; when he guard at Black ore, that son who lere was ccasion. Decem- e steam- boat ; I was on board on the 2rtth December, 1837 ; I remember t'c attack made on her that nigh ; I retired to the ladies' cabin about S o'clock, and was asleep when the alarm was given ; I was awoke by the firing of guns and a noise on deck ; I jrot up, put on my boots and hat, threw my overcoat on mj'^ arm and went out, but armod men shoved me back to the l)ack part of the cabin, where they made me lie down on the mattresses, and they beat me and stamped upon me ; they beat me with swords and cut and mani^led me a good deal ; they asked me wlicre 1 came from, and a good deal ; they cut my arm as I " fended" off the blow with it ; there were five or six struck me ; the place was not high enough for them to use their swords mucii, and my coat saved my arm some ; there was noise and con- fusion and low talking ; as 1 was lying on the mattresses, after I was wounded, one man came in and said, " Koll over, you damned yankee son of a bitch, and give me these mattresses ;" 1 rolled over and he threw the mattresses through the window ; they took a large corn basket, set the lamp in it, and put the cross bars from the win- dow upon it, and set fire to them, which drove iisout. As I lay there one said, " What shall we do with this man — kill him 1" " No," said the other, " take him prisoner ;" a man then came in who was an of- ficer and said, " Oh, Ave want no prisoners ; he's pretty nearly dead, let him go ashore" — I was then very weak ; I made towards the sen- try, but he would not let me pass ; I spoke again to the officer, and told him the sentry would not let me pass, and he sent a man to pass me ; I did not get a very good sight of tiiat officer ; I do not know that I could recognize him ; 1 have not seen any man that I suppos- ed might be that man since; I went ashore; I staggered along the railroad track and my fiiends met me — Mr. Wells, i believe, was one — and they took me into the house ; I had a serious wound on the left arm and other very serious ^uts ; I was not aware of arms being on board that night, nor armed men. Cross-examined by Mr. Spk.nceu. — I was in the ladies' cabin ; there was a light burning in it all that time ; all the others escaped when I was in the cabin, as 1 have mentioned ; I do not know that the basket was the only fire made on board ; all mattresses and the bedding were thrown out of the cabin window; I should think there were twenty of the attacking party in the ladies' cabin ; I went on shore ; the boat then had moved from her moorings ; I did not see any one go ashore after me ; there was a little boy in the cabin, and I have the impression he was there when I left ; he was 1*2 or l-i years of age; I helped to get the boat out of Buffalo Creek. By the Attokmiy Genkual — I was not acquainted with the prisoner at the bar previous to that time. It was now 1 o'clock, and the Court took a recess for dinner; the jurors, the prisoner, the bar and the reporters, the Court and the au- dience, retired in the usual order, one class retaining their seats until the other had retired. Afternoon Session. At 2 o'clock. Judge Gridley again took his seat on the bench, and the trial proceeded. Gilman Appleby, examined by Mr. Woods. — I reside in BufTalo, P,i i\ •• I i ', H ( \i ,.j: , ' ' I.; ', 60 GOULD S REPORTER. and have lived there more than six years. I was on board of the Caroline when she vvns attacked. I took charge of her at the request of the owner, Mr. Wells. I went to bed on board of her that night ; 1 was awoke about 1") or 20 minutes after 12; 1 was alarmed by one of the watch ; he came to the companion way, and said there were armed boats approaching. I was in a berth in the lower or gentlemen's cabin. 1 got up as soon as I could ; I got my boots on and my vest ; I had my pantaloons on ; I went to the companion way with my coat on my arm ; the companion way is a very narrow pas- sage ; one side, next to the engine, was not .sealed up; the stairs are winding and very narrow; 1 attempted to ascend the stairs; Captain Harding, was ahead of me, and perhaps some others; a scuffle took place between him and some one on deck, and the door was closed, perhaps by the scuflling, ;xnd shut me in ; I remained on the stairs two or three minutes, and heard such expressions as " show the damned Yankees," or " the damned Yankee rebels no quarter." There was firing and scuffling ; it was one general noise and confusion. I again got to the door and had got it open about a foot ; a man sprang at it and said " down," and the door was shut in a twinkling ; he struck at me with a sword which cut my vest ; it went down to my pantaloons and struck a metallic button which turned the sword off. 1 sallied back and went below ; there were a number behind me ; I had the lights in the cabin blown out, for I expected they would come to search for us when they had done all they wanted to on deck. I re- collected that I could get through the engine to the deck, and I crept through to the upper or promenade deck. There was no one on the upper deck, but there was considerable noise on the main deck. I got from the deck to the warehouse. I hung on to it some minutes. When there, I heard one say, " God damn them, what has become of the six-pounder that was there before night." In a very few min- utes I heard some one say from near the warehouse door, " Bring a light, God damn them, we may find some of the damned Yankees here." There was no floor nor any thing but sleepers; as they searched there, I thought that I was discovered, and 1 jumped from where 1 stood into the water. I went down and was rather strangled ; as I came up some one struck me on the bjick. I got under the pier, and afterwards crept out and made the best of my way to the tavern ; I thought at the time that I was struck with an oar or a boarding pike ; saw the man who gave me the blow with the sword ; there was a globe lamp hung at the head of the companion way ; it hung just so a man could clear it as he got up ; I then sup- posed that man to be the prisoner, Alexander McLeod ; I had had an introduction to him at the Eagle tavern in Buflalo a week or ten days before ; I thought then I knew him ; I was examined the day after this transaction at Schlosser before a magistrate ; my attention was called to this subject the next day, and 1 told every one, I sup- posed it to be Mr. McLeod, but it was done very quick, and I might possibly have been mistaken about it ; I went to Field's tavern ; I afterwards saw Durfee lying on his face, dead ; I saw where he was wounded ; the ball passed through his head from behind, and came out in front ; the brains were blown out j there were blood and brains d ii Mcleod's trial. hoat ; I saw them all pet out of the i)oat ; VIr. Smith was with me when I came up tho canal ; I said I would Q^o and see who was in those boats, nn(i I ran to tiie spot ; the men who came from the hoats went to .Mr. J)avis's Tavern, which was dis- tant ten or twelve roils; they were talking about the Caroline; there were other persons who came to the boats, hut I asked no qnesiious ; when they ijot to Davis's Tavern, some said, "Let's po in and lake somethini; to drink ;" there was light in the house and the door was opened two or three tinjcs ; the man was there that I call McLeod, and I don't think I'm mistaken about it ; I was within eight or ten feet of hiin when they made a halt at Davis's Tavern ; he stood about ten feet from the stoop ; persons talked with him ; there was a good deal said, and many questions asked ; I am as sure that it was McLeod as I am that he is now sitting before me ; he then went into Davis's; some of them said "our bar-tender is here," (meaning me.) we will go over to Smith's ;" five of them went with me ; between daylight and sunrise the next morning, some one came in and said McLeod was standing on the steps at Davis's Tavern. The man that said McLeod was on the steps, said McLeod was wounded last night at the burning of the Caroline. I said hp was mistaken, for I saw him last night and he was not wounded. Question by the Court. — Who mentioned to you that McLeod was wounded 1 Witness. — Peter Smith. I think it was Peter Smith tha*; spoke to me about McLeod being wounded ; it was spoken of by several. I went over to see if McLeod had his arm slung up, but did not see him. I asked Davis's bar-tender if McLeod was there, and he said he was somewhere about. When I looked out, McLeod stood on Davis's stoop, near the hall door ; that might have been four or five rods from where I stood. McLeod had a belt round him, and a sword at his side, when he got from the boat. Cross-examined by Ma. Spencer. — I am about 47 years of age. I went from (Janandaigua to go to Canada. I left there the 1st Sep- tember, eight years ago. I left to go there to make money. I did not run away. I did not go away for debt, or anything dishonest. I returned to Canandaigua in April, 1838 ; I am a farmer ; I know Mr. David C. Bates and Mr. Phineas Bates ; I went into the baking business at St. Catherine's : from there I went to Chippewa ; I built me a house there, and some part of the time I was in the lumbering business, and some part of the time I was carrying passengers from the steamboats ; I only stayed with Smith in the bar six weeks ; I commenced there at the time thej'' began on the Island ; Piatt Smith returned with me that night, and a couple of sailors that I did not know, and Captain Miller also, I believe : we started together from the front of Davis's ; the sailors were of the party that came from the I ansi t!un| the doul if ll theil for(> hell lass tlicii MCLHou a TniAr<. (i.l iloiipthc Nia- ^ itNf'if, it runs muled jiist |)('. lauded there ; e were ton or tlu'in ; I WHS t of the boat ; said I would pot ; tlie nieu '■liich was dis- iroh'ue ; there no questions ; ) iu aiui tiilie the door was pall MeLeod, I cinfiit or ten rn ; he stood n ; there was re that it was icn went into mrnninnf me.) ne ; between ?■ in and said The man that led last nifrht )n, for I saw McLeod was tliat spoke f by several, did not see and he said d stood on four or five him, and a s of age. I he 1st Sep- ney. I did dishonest, er ; I know the baking \va ; I built 3 lumbering ngers from X weeks ; I Piatt Smith at I did not ether from came from the boats ; I asked them their uaiiies, but they gave mn no other answer than that Col. Clark would pay iImm" hoard ; they boirdi'd there two or three days herorc! and one d;iy after the nllliir of the ("uroliuc : the sailors had belts and boiinling pik(?s ; i snw ilieni down at the boats ; I know theui: iu iVont of Davis's they askod me if 1 wa-i '/oiug home ; the first day liiey came there they i^^ave me their pistols, cutlasses nrid blankets ; they were there two ui'^'hts be- fore the alliiir of the Caroline ; they wore their eutlass(;s iu their bells ; they had their blankets rolled up ; they called lor their cut- lasses and pistols the evening they came, alter supper ; they too!i thorn and \t'ulke(| out ; I saw them again the next morniuir. .Mr. Piatt Smith laiil them away for them the next morning iu the same place wlusre I had put them the day before. 'They remiiiued till evening again. The sailors then called for the arujs, but not for th«' blardicts. The sailors lay up stairs part of the day ; I saw them at their meals. Tlu; night the Caroline wa bunuid they took their arms again, and said " we'll take something to drink, wc shall never sec you again." The fire where the rails were burned was a little above the head of the cut. 1 thought there were but two boats at first, for they went pretty quick, but when I came up, I saw there were three. It was as late as 3 o'clock when they landed. I was not absent above three-quarters of an hour from Smith's. I was ab- sent to see the boat burn ; I was not in bed for six weeks. It was a busy time, and I slept on the counter. I went up to where the big light was to see the Caroline burn. I could see it from the house, but there was not so good a view there. — Some thought they saw men on the boat, but I did not ; I thought they were trees that ilitercepted our view: I only knew Mr. McLeod and the two sailors that landed from those boats ; it was a cloudy night ; I should think there was a moon, but I did not see it shine ; it was a dark night, but I think I should know a man ten feet off; I did not speak to the sailors ; I did not think it was my business to meddle with other people's business ; they spoke to me first ; I don't recollect seeing any other light than that at Davis's tavern ; 1 went up within twelve or fifteen feet of the stoop ; McLeod stood on the stoop ; his side face was towards me ; folks were talking with him ; McLeod was asked the question, how many were on board the Caroline ; he said there were a good many ; he was asked if any of his own party were hurt, and he said there was only one armed man on the Caro- line, and he stood sentry ; I don't know how many lights there were in the bar ; McLeod stood between me and the light ; I camiot tell whether there was a light outside Davis's bar or not ; tluMc was a lamp hung out there sometimes on dark nights ; I knew Al.'Leod by his voice and also by the light. The light by which I saw McLeod was inside the tavern. I cannot say whether it was a lamp, a candle, or a fire-light. I only saw a light shine through the window, and I stood ten or twelve feet from him. I cannot say how the prosecutor knew that I knew this. I was subpoenaed last winter to go to Lock- port. I don't know but I told this story to Mr. David C. Bates. I don't know that I ever told it to Mr. Wheeler, postmaster of Canandai- gua. Many people have asked me questions about it. When I M •I M A el' dl 1 ■ . »!' :'i I is f \4 k 'W': ,1 "' H y ''hill u OOULD S nEPORTBR. % : i-'i' m wns Imnbcriiicr, I whs somntiiiicH with Mr. Wiilkor, nnd Honinlimos u'iih I'lntt Siiiitli. Al'icr I went Ikmiic with the sailorM that iiiirht, I liiil iij) thi'ir tiriiiH, I Miuv th(^ HiiilorH auiiiii the next day. Tht-y tolrl nin thoy wpre cfointj to board on a schooner. They e.allod for their hliuiKeN, niiil said they were croinuf on a sehooner. I saw one after and aslied him wiierc he " put np," and he said " on the seliooner." I never hehl any conversation with McLeod. I had seen him at the court rooiri, and at Niairara, and St. Cath(»rin(?'s, and Chippewa ; I have " passed the lime of (hiy" with him, l)nt never held any conversation with him; I thonnht I knew McLcod's voice and his face also; I am satisfied that I Know him. I knew an expedition was fjot up Olio nij^lit to ifo round tlie island. I was not iiceus- tonied to run about that time of night, but I then suspected they wer*' goinrr on the ishmd ; I knew nothing of the burning of the Caroline until I saw her on fire going down the river ; 1 did not know that the expedition was for that purpose until they landed from the boat; I iioard in the evening that there was an expedi- tion on foot ; the sailors asked me if they could get in in the night, if they came back. I told them they would find me up ; i ran ■ .*» '^ % nnd HomntiincN H that iiiirlit, i ly. 'riicy toKI called lor tlicir Niiw one al'icr llu> sclidoiior," 1(1 seen liiiii ;U aid Cliippcwii ; •viT hold any < voice and liis ■ an t'xpculitiojj 'Hs not ucciis- suspectcd liicy )iirniii!>' of the vvv ; 1 did not il tlicy landed ruB au oxpedi- n in tiic niprlit, ue lip; 1 ran 3 if tlu! sailors I saw the lot know any- stayed to pick cs, and about le at Niaofara )tember, 1838 ; il-H ; 1 was a e was destroy- niy liouse was c village liiat knew him in ous to the de- fternoon about the back part its, were with iread around ; 3 store wished ame was Call, e evening at IS I went in ; lind him, but igain the next p of Davis's J was telling 3 performance want to see two. There T bragging of of them dis- lim that day I MCLKOU .i TRIAL. (;r» u:>ain ; I saw him a day or two after that, coming up from tiie north M ic of the Creek to Kiri told .S(|uire Hraduer issued the pro(ress; he was sent to liockpori then, as I was lold ; 1 do not know whether ho was discharged by S(|uire Hradner or committed, but I was told he was siMit for to Lockport ; wh(>n I came up there I was told h^ was under a warrani, was to be examined the next morning ; I did not appear against liiiu as a witness, nor did I tell anybody that night what 1 knew about this matter ; 1 appeared before the graml jury against him, at liockport, after that, three or four months after; I don't think he was discharged before Sipiire Ikadner ; I heard that McLeod had a hearing on Habeas Corpus there, and was discharged and went home ; I appeared against him before the graml jury in February ; 1 was at the Falls when he was arrested at Lewiston ; he was there under arrest three or four, perhaps live days ; i did not go down ; I was not subpanaed ; I diil not tell anybody what I knew ; I did not want to have any trouble about it ; 1 did lutt tell anybody until I was taken to Court, no more than what I had tidd on the other side the river before I moved over ; 1 moved in September, 1838 ; I had told there, what he had said about thd Caroline ; 1 recollect his being examined before Squire liell ; il was the same fall that he was discharged under Habeas Corpus ; I heard of his examination befgtre Judge Bowcn ; I did not attend cither ex- amination ; 1 kept it to myself on this side; the Captain Usher that 1 saw was the Captain Uslier that was murdered at his own door ; I only knew Capt. Drew and Capt. Mo/ier by sight ; it was the 28th or 2i)th of December that I saw them ; I only knew it was that time from the almanacks ; I was doing a lieavy business, and I kept my books, and put down the date usually at the foot of my bills ; I was engaged three or four weeks making out my bills, off and on; I am well convinced it was the latter end of December that I saw them at Macklem's ; it was on the day previous to the destruction of the Caroline 1 saw the lire on the opposite shore ; I lived in the village of Chippewa ; I was in at Macklem's frequently ; I have seen McLeod at Davis's frequently ; I saw him there at 9 o'clock that night ; I hud heard a whisper about 2 or 3 o'clock that day, that the troops or vol- unteers that they were getting up, were going round the Island or to cut out the Caroline that night ; I don't know that McLeod was oiif of the troops, but he was among them some times. 1 did not know one in a hundred that came out of Davis's that day, nor do I know in particular why I noticed McLeod then. I did not speak to him ; he went towards Macklem's store, and he went off towards the cut. It was as late as 9 o'clock. The next morning I was within four or five J I 4< r '" i t'i il ' 5 .,ri CG GOULD S KEPOPtTEn. in ?!!'! .1 foet of him. I did rot speak with him. There were a great many llocking round him. The people tliat were round him were princi- pally strangers. I think Mr. William Caswell was there, but I am not certain. Mr. Caswell is here as a witness. It lirst struck me this moment that Caswell was there. We have talked some little about it. Caswell told me he was subpoenaed as a witness ; I think we have talked about seeing McLeod that morning. By the (,'ouiiT. — 1 cannot say which spoke of seeing McLood that morning first ; 1 think I did ; I think he said he saw McLeod the next morning after the burning of the Caroline. By Mr. Spkncek. — I think Caswell told me McLeod bragged about being on the boat. We did not fix what he said and the time together. The Attorney General objected to the witness being.asked what another witness had said. Judge GuiDLEY thwight it was proper ; the witness had said that it never occurred to him till this moment that Caswell was there, and he also said that Caswell and he had talked on the subject before, and that Caswell told him he was there. The examination was pro- per to ascertain whether the witness was mistaken or alluded to some other time. By Mr. Spencer. — Caswell resides in BufTalo. By Mr. Woods. — Chippewa was filled with troops and other peo- ple ; there were 2,000 there ; many were quartered at Davis's. By the Attorney General. — Recently, after the affair, I told several at Chippewa what I had heard and seen. By Mr. Spencer. — I told Mr. Frederick Smith and John C. Davis, who keeps the hotel. Mr. Davis is here as a witness. It being now 6 o'clock, the Court adjourned until 15 minutes to S o'clock to-morrow morning, and the Jurors and others retired with their usual order and regularity. The prisoner was re-conveyed to Bagg's hotel, where he was kept in the custody of the SherifT. "Jhe prisoner sat throughout the day with his counsel, much sit his ease, notwithstanding the strong testimony of some of the witnesses against him. THE THIRD DAY. Judge Gridley took his seat this morning at 15 minutes to 8 o'clock, at which time there were but a few officers, lawyers and reporters, and not a single spectator present. The prisoner was brought in soon afterwards ; the jury were a few minutes later, and then about a dozen witnesses and idlers took possession of the spec- tator's seat. Charles Parke was the first witness called — Examined by Mr. Woods. — I reside in the Niagara District in Canada ; I am a native of Canada ; I was raised on Chippewa Creek ; I was there when the Caroline was destroyed ; I was attending bar for Mr. Davis ; I was there rising three months, commencing about the 10th or 15th of December, on the day on which they first discovered people on the Island ', I have known Mr. McLeod th^ greatest portion of the time ; 4 It; 1 ters ; • i, f ':M > a great many were princi- here, but I am irst struck me !(l some little !ss ; I think we McLood tliat McLeod the bragged about time together, ig.asked what had said that ivas there, and Libject before, ition was pre- luded to some linutes to 8 lawyers and )risoner was es later, and of the spcc- ned by Mr. am a native re when the )avis ; I was or 15th of eople on the of the time ; 1 id other peo- Davis's. 1 1 told several ohn C. Davis, || minutes to S retired with -conveyed to BherifT. ^he 1 Jil his ease, lesses against MCLEOD S TRIAL. 67 he has held the office of Deputy Sheriff of the Niagara District. I saw him at Chippewa in the afternoon of the day previous to tiie night on which the Caroline was destroyed ; I saw him pretty much that day, and almost every day for that matter ; 1 saw him that day ; he v\ . nt ti) bed at Mr. Davis's pretty early — before dark; I saw hi tfi again after dark ; a gentleman came and asked for McLeod, and he was sliown wlierc he was; ]Mr. McLeod got up; it was between eight and ten o'clock ; he came down into the bar-room, and J think he sfiid to Mr. Davis, if his brother should come to say he had gone to Niagara; [ saw him after he left the house that night, between .vi;. Davis's and Chippewa Cut ; it was perhaps three-quaners of an hour after; there were a good many people along the road ; whether you could consider them in his company or not I cannot say ; he went to some boats tied up at the side of the river ;^ there were from lOO to 200 people there — 100 at all events ; he proceeded up the Nia- gara river with the boats ; I think he got into one of them ; he went, I should think, three-quarters of a mile up the river with the boats ; they had got out of the boats again and towed the boats up the river to the point of embarkation, nearly opposite the lower end of Navy Island ; the current is stifT, and they towed the boats to get them up earlier; they shoved ofTfrom shore, and steered across the river as far as I could see ; I remained there an hour, and then returned to Mr. Davis's and went to bed ; I left Mr. Johnson, the bar tender, with me, up; I have understood he is in Detroit; I have not seen him since the fall of '38 ; I saw McLeod again next morning, about sun-rise or a little after, or a little before ; I saw him in the village of Chippewa, either in front of Mr. Davis's house, or in the square ; there were a great many people stirring at that time ; there were none very close to him ; I do not recollect hearing him say anything ; if I recollect right McLeod had a sword by his side ; I believe I saw him again during that day ; I think not a great while after, standing on Mr. Davis's platform or stoop ; I don't recollect how often 1 saw him ; I have seen him very often since that day ; he was about Chip- pewa a good deal that winter ; he was often in the officers' mess room ; I think 1 have heard him say something about the destruction of the Caroline; it was two or three days after; [ think it was in the mess r »m where the officers dined; Captain Stennot was one that was there, and Major Cockle of the dragoons ; there were four or five of them ; he said he had killed a Yankee, or something to that purport ; they were conversing in reference to the Caroline ; I speak with considerable certainty when 1 say that McLeod got into the boat •opposite the lower part of Navy Island. I have no doubt of it. Cross-examined by Mr. Spencer. When I am at home I live now in the township of Mamfleet, seventeen or eighteen miles up the Chippewa Creek; I am farming and have a family; I cannot exactly say 1 own the farm ; it would be a lengthy story to say how I hold it ; I hold it with the other heirs of my father — my brothers and sis- ters ; my age is twenty-nine. I attended bar for Mr. Davis some- thing like three months and a half ; it was a busy time there ; there was a man named Johnson attended bar there ; he was there before 1 came ; Mr. Davis attended sometimes; the regular number that be- y., ■■■ •1 !'- '. I- '•: ! t'« ^■^1 ■\ "^ i: '; Ma 'I 'Ill GS GOULD S REPORTER. i 'if J longnd to the officers' mess was six or eight ; there was Capt. Win. Steniiot, Lieut. Caldwell, Captain Lackey, Mr. Cockle, who had some office in the Dratroons, whether Major or Captain I cannot say ; I don't recollect the names of the others. There were other guests about the house. There was a great deal of business doing. I savv .'several persons in the square that I knew the next morning. The mess room was up stairs immediately over the bar-room; McLeod spoke boastfully there of the Caroline affair; there were several in tlie room ; I had busincfs there as bar tender ; it was a day or two, or three, after the Caroline affair ; they were all talking ; I cannot say exactly what they said ; they were speaking in praise of the deed, or something that purported to be that; they were all talking ; I can- not tell what either one said ; 1 was in the room five or ten minutes ; I was called into the room ; I never went in unless I had business, but I had business there sometimes when I was not called ; I don't know whether I went there with beer or liquor, or Avhat it was. I don't know the date on which the Caroline was burnt ; the evening before I don't think I left the house ; I was very seldom away unless it was to go to a store on business; I had business enough to con- fine me to the house ; after the night on which the expedition took place it was some time before I left the house again ; I think it was as much as a month ; we were kept busy night and day ; for aught 1 know the 29th Dec. was as busy a day as any other ; there was no room that night ; I think I left the house that night about 10 o'clock, perhaps it was^.later, probably 11 o'clock; I left the house that night on the invitation of a friend of mine, Peter B. Nellis, who then lived on the Grand River, who said there was to be an expedition to de- stroy the Caroline ; I think he has removed to the Forty Mile Creek. I saw something burning over at Schlosser ; we were up the river side, 1 should think, a full hour ; I came back alone ; my friend did not wish to go back so soon, and as I had been up a good deal, and was fatigued, I went back and went to bed ; perhaps it was 12 o'clock when I returned ; it might be later ; I saw the fire but a short time before I started to go home ; I was not then where the boats started; I looked at the fire but a few minutes — perhaps three minutes — perhaps five ; I got tired of being there before that ; it was quite still then ; there was no noise from any quarter. When 1 saw the fire, I only knew what it was from imagination, and from what Mr. Nellis said it was ; he and I had come back together as far as the beacon light ; there was another Nellis with us — Captain Wil- liam Nellis ; he is cousin to the other Nellis, and he now lives on the Forty Mile Creek. We three were in company ; there were many others strolling along; Mr. Davis's house was perhaps 60 rods from the beacon light by the road ; there were several sentinels that I had to pass on going up ; I had to give them the countersign ; I got it from Mr. Nellis, the man who invited me to walk up the river with him; it was "Place," if I recollect right ; I think I was only hailed by the first sentinel as we went up and by none as we returned ; tho sentinel cried "who goes there," I said "friend;" he said "advance friend and give the countersign ;" I advanced and said " Place" in a low tone ; we each gave the countersign; the soldier was Robert i "¥.- Capt. Wm. o had some not say ; I ither guests ing-. I saw ning. The ; McLeod several in day or two, cannot say r the deed, ing ; I can- ^n minutes ; d business, ed ; I don't t it was. I the evening iway unless ugh to con- jdition took ;hink it was for aught 1 lere was no : 10 o'clock, B that night > then lived lition to de- Mile Creek, up the river Y friend did ad deal, and 5 it was 1-2 fire but a I where the ;rhaps three )re that ; it r. When I n, and from ether as far aptain Wil- ow lives on there were aps 60 rods tinels that I gn; I got it ! river with only hailed ;urned ; tho J " advance Place" in a ivus Robert MCLEOD S TRIAL. fii) I % Miller, who had been a student under my brother at Dundas ; he ]r,id sHulied physic or something of that sort ; when I left tiie house that night there were very few people tliere ; Mr. Nellis had been slaying at our house two or three days at that time ; there were a good many men got into the boats where thev were lirst towed up at the mouth of the Chippewa. There were e ght boats towed up the river ; they were towed up by hand ; there were no candles or lamps about the boats ; I cannot say McLcod got into the boats at the mouth of the Chippewa. I saw three or four others that I knevv of the party. I saw Captain Drew there, or a person I considered to bo Captain Drew ; I did not speak to any of the party ; I knew a person (if the name of McDonald j I believe he belonged to the Coburg Company ; I was quite close to McLeod, sometimes three feet from him, sometimes our elbows might touch ; I was very close to where they were getting out the boats ; I did not speak to him; I think 1 heard him speak ; it was something in reference to ihe men getting into the boats ; I don't recollect what it was ; I don't know how many got into the boats at the point of embarkation from which they left the Canada side ; perhaps 60 or 70 ; I think there were some in the boats as they were towed up the river ; I cannot tell how many composed the whole party ; I was with the party, and among them as they were going up ; sometimes I was a little ahead of them. There were a considerable many persons besides ; I was close to them when they embarked finally ; I was within four or five feet of them ; I was with them and among them ; I looked McLeod in the face as he went aboard; I am in the habit of looking men in the face, it is cona- mon ; I had no more reason than I have ordinarily when I meet a man. By the Court. — The embarkation was not from one boat to an- other, but to each one. By Mr. Spencer. — The boats lay along shore ; I do not recollect whether McLeod went aboard with Capt. Drew ; he did not go on board with McDonald ; the boats did not all leave the shore ; seven only left ; one remained, and I believe there was a man in it, who had it tied up ; I think eight or nine went on board each boat ; 1 think they were all about an equal number; I think Capt. Drew went on board one of the centre boats ; i cannot say that 1 knew any one man in particular who went on board with Capt. Drew. By the Court. — I cannot recollect whether Capt. Drew and McLeod went on board together. By Mr. Si'encer. — I knew what they were going for ; Mr. Nellis told me ; he is a militia officer ; I don't know Col. McNab ; lie was generally understood to be commander-in-chief; he had his head quarters somewhere in the place ; 1 had a man pointed out to me as McNab; I know Davis's tavern; that was possibly five rods distant from Smith's ; I do not know that McNab had his quarters there. I have had some conversation with the counsel in this case, since I came here ; it was with this gentleman (the Attorney General) and Mr. Wood. Attou-ney General. — I can tell the Counsel ; I desired him to tell me all he knevv. Mf. Si'ENCER. — I don't desire the Counsel to tell me any thing. ^ t r 'ii I ro GOULDS REPORTER. Cross-examination continued. — I did not see any papers, but I have heard commissions were taken in Canada. Hy Judge Gridley. — The embarkation was mucli about tlie same time ; they were two or three minutes getting ready. By Mr. Si'KNCEu. — I think McLeod went aboard a centre boat ; 1 was acquainted with him; I iiad done business with him; I had tw(» executions against a man, and I wished his goods to be levied on, and I called upon McLcod as Deputy Sheriff, on the subject ; on an- other occasion I went with Mr. Ford to settle some Sheriff's fees; that was in the fall of 183(j ; I went to be a witness to the transac- tion ; that was at Niagara ; 1 lived on Grand River at that lime ; that is seventy miles from Niagara ; I went from my mother's down to witness that transaction at that time, a distance of 28 or 30 miles ; I don't recollect the sum ; Ford is my brother-in-law ; he was in the lumbering business; Ford paid my expenses; indeed 1 was in their employ at that time ; he lived at Grand River too. I think Mr. McLeod carried arms at times; I have seen him wear arms in his official ca- pacity ; I saw him once at the Falls, wearing a sword ; Sheriil's sometimes wear swords there ; they wear them when going on some dangerous expedition. By the Court. — The High Sheriff wefu's a sword in Court some- times. By Mr. Spencer. — The guard I spoke to was up the Chippewa Creek ; after I had passed young Miller I think I saw other guards ; they were militia ; I don't recollect that I was challenged by any others ; I do not know that there was a guard-house there, with colored guards ; I saw McLeod the next morning about sunrise ; .1 went to bed, leaving the boat burning, and did not get up till morn- ing ; I crossed a bridge near Davis's tavern as I went ; Miller, the guard, stood there ; I cannot tell when I first mentioned what I knew of this matter ; I told many I was on business at Buffalo, and was there subpoenaed by a man of the name of Pierce, I think ; it was last Monday week ; 1 had been spoken to before about coming here. The Attorney General objected to this examination, and to the names of persons being mentioned who might be prejudiced in Can- ada, when the disclosure was not material to the case. Judge Gridley thought the means and agency by which he was brought here was admissible. By such examinations it sometimes turned out that witnesses had been bribed. Examination continued — I was spoken to last winter ; they wished me to go across the river that I might be caught or subpoenaed against McLeod ; I think the persons were not engaged in the patriot mat- ter; they are religiously bound against taking up arms; they are " Reformers ;" one said, if he was in my place he would go over, and he asked me why I would not go over ; 1 was spoken to a week before I went across, to know if I wouM not go to Buffalo; I told them that I would not. This conversation took place at the mouth of the Chippewa; I was then on my way to Buffalo ; I had come from home ; I was not spoken to some few days before I came ; 1 was spoken to a month or two months before I came, by different persouj was g(. nothin^j 1 did n< brary, waf. tall siiid hi n'lo ; ail canmiit thein I if no on notice, Chippev the Can said his expect 1 said ($50) t Hawley would r to work MCLEOD S TRIAL, rs, but I have Hit the sfinic ntre bout ; 1 1 ; I had two )e levied on, ject ; on an- erifl''s fees ; -he traiisac- it time ; that r's down to 30 miles ; I '■ was in the .vas in their Vir. McLeod s official ca- rd ; SheriliVi ng on some vourt somo- i Chippewa her guards; ged by anj'^ there, with ; sunrise ; .1 p till morn- Miller, the led what 1 iuflalo, and I think ; it out coming and to the ced in Can- ich he was sometimes bey wished aed against atriot mat- i ; they are Id go over, 1 to a week ilo ; I told the mouth had come I came ; I y different 71 persons than those who spoke to me last winter ; they asked me if I was going, and why I would not go ; I told them I would liuve nothing to do with it. Wlu-u I left home this time to go to Bufliilo, 1 did not expect to come to tiiis trial j i came to buy books for a li- brary, a stove, a pump, and a plough ; I did none of that business ; I was taken early after sunrise ; he knew I was there in this way ; he siiid he was in Ciiippewa when 1 drove through, and he knew me ; and I suppose it was known that I was going ; we had held a C(urnnittee about buying books two or three weeks before, and I told them I had business in Bull'alo, and would do tlie business for them if no one else went first ; a few days before i started 1 gave them notice, that they might have the money readj' ; Pierce crossotl from Chippewa to the Falls ; I charged hiin with having au emissary ou the Canada side, for the purpose of giving him information ; and he said his emissary was himself; my brother took my team home, I expect ; I was hurried off to this place immediately after breakfast ; 1 said I would rather pay the penalty mentioned in the subpcuna ($50) than go ; but I was told it must be left with Mr. Hawley ; Mr. Hawley came and said I could prove some important facts, and if I would not go, he would detain me on that subpu;na, and set himself to work to arrange means to force me to go ; he had some name for it that I do not recollect ; I was ignorant of the power he had ; when I left home I understood the trial was to come on, but I thought a week before. By the Attorney General. — I came to Chippewa and returned home again ; my reason Avas, that I was asked by a man whether I was going to Buffalo ; he was a man who had asked me some time before to go ; I returned home, and stayed a week from fear of being taken as a witness ; when I had the interview with the counsel which has "been alluded to, I had not any evidence read to me, nor was I prompted in any way ; I was asked, on the night of the expedition, to join it, and enter the remaining boat which they had not men enough to man, but I declined. By Air. Spencer — Who was the man that asked you to come to Buffalo I The witness hesitated. The Attorney General objected to the question. Judge Griuley said if Counsel insisted upon it the Court had no discretion. Mr. Spencer waived the question. The cross-examination continued — When I turned home, as I have mentioned, I did so because I was afraid of being taken ; [ understood they took witnesses under warrants sometimes ; I am ignorant of the laws of this State. He?iry Meyers — Examined by the Attorney General. — I reside about 4 miles this side Canandaigua ; I work on a farm ; I have a family ; I am a blacksmith by 'rade ; I have resided in Canada ; I am a citizen of the United States born. I went to Canada 7 years ago, and left there 8 or 10 days after the Caroline was burned ; I have seen McLeod twice before ; I saw him once when 1 came from Canada to Geneva, to see my friends at St. David's ; and } saw him i J ^ \Tfi \.-v- 72 GOULD S nEPOUTEn. .' I ' moving out of Canada, at Niagara in Canada ,VJ it was when about a year before I left Canada that I saw liiin at St. David's ; when I saw hiin at Niagara I had stopped with my horses to " bait" ihem , it was cold, and I went into the bar to warm myself. There were f>0 or (JO persons there, some of whom had weapons, and some h:ul not; wlien 1 was in the tavern, there was a conversation as to w'i(» had shot Durfee ; somebody spoke and said, " where is the man 1" .McLood spoke and said, " here he is; by God I'm the one ;' Tlien he pulled out a horseman's pistol, and said *' that's the pistol that shot him ;" he then put np his pistol, and pulled out his sword, and said, " there's the blood of a damned Yankee ;" there was blood on the sword about five or six inches long ; it was dried on ; I then went out of doors to the shed to feed iny horses with oats, and he and two or three others followed me out ; they asked me where I was moving to ; I said to Geneva ; they asked me Avhy, and I said my friends all lived there, and my wife was not satisfied with Canada. Some of the company Said I was a damned rebel, and McLeod said I was a damned Yankee, and should go no further ; they were under the shed some time talking, and at last McLeod said if I had a mind to treat the company I might go on ; 1 did so. I said I had nothing against either party ; we went into the bar and drank till it amounted to a dollar, which I paid, and was then allowed to go ; I have not, neither before nor since, heard McLeod say any thing about it, nor do I know any thing about the Caroline. Cross-examined by Mr. Spencer. — I did live about 6 miles from Geneva ; I now live 13 miles from Geneva. I left Canada on account of the troubles ; my Avife was not content there, and my friends kept writhig to me to come back. I lived one year at Long Point, in the London District, in Canada. I then moved to Victoria and set up shop ; that was four miles from the Furnace, where I lived a year ; I then went to live at Round Plains, about six miles from Simcoe ; I lived there two years and set up shop ; and from thence I moved to this country ; Round Plains is eighty or one hundred miles from Niagara ; I first saw McLeod at St. David's, about a year before, at a place where I stayed all night. I believe he stayed there all night ; he was there during the evening before 1 went to bed. I did not know him before ; but 1 heard his name mentioned that night ; I never saw him after until I saw him at Niagara ; the conversation there about the man who shot Durfee took place in the bar-room ; there were twenty or thirty in the bar-room at the time ; I told of the circumstances and the conversation there, at Canandai- gua ; I cannot mention the names of the persons I told it to ; it was talked of pretty much every day there ; I was asked by Dr. Woodruff and others if I knew any thing about the Caroline ; I don't remember whether I told him the story ; I live now at the third place since I came from Canada ; lived at Phelps ; I talked of these things there ; my neighbors asked me some questions about it, and I told the same stoi-y I have told here ; I talked to — Sherman, and I believe he wrote to Lockport about it ; I was subpoenaed last week to go to Lockport by Sherman ; I don't know that he is one of the patriots there ; I did not go to Lockport. I got a letter to say I need not go to Lockport. I was paid n some n nearest cross Niagar saw sc' 1 came came t left Sm Smiths ing tha %. dn ; it was t. Diivid's ; i to " bait" If. There and some tion as to tlu'iiianr' [>;■' Then pistol that iword, and Viis blood in ; I then its, and he le where I and I said til Canada, eod said I ere under id a mind d nothing amounted have not, 3ut it, nor liles from anada on !, and my r at Long Victoria where I six miles and from or one David's, telieve he re 1 went lentioned rara ; the ce in the he time ; 'anandai- it was V"oodrufF emember e since I fs there ; he same le wrote ockport re j I did ockport. MCLEOD S TUIAL. 73 I was subpoenaed to come here two weeks ago last Monday ; I was paid nothing for coming, but I was told I should be paid, and that some means would be provided for me here ; Niagara was not my nearest way to this State ; I was told 1 should not be aUowod to cross at Black Rock ; I got a " pass" at Qiieenston ; it was at Niagara Falls that I saw McLeod on the north side of the road ; I saw several soldiers before I came to that house, at various places ; I r.ame in sight of the Niagara River two or three miles before I came to the Falls ; I arrived at the Falls about 1 or '2 o'clock ; I left Smithsville that morning a little before sunrise; I cu me from Smithsville to the Falls, because I was told there was better sleigh- ing that way ; I am 32 years of age ; I heard McLeod called by name at Niagara, I do not know by whom ; I knew him by sight, and was pretty sure he was the man I had seen at St. David's ; I heard his name called under the shed ; he was called " Alexander," and then somebody called him " Sandy McLeod ;" the man who spoke to him and called him "Alexander," said, "Alexander McLeod, is it best to let him go or notl" McLeod said, "If he'll treat he may go." I said I had nothing to do with the party, but as to treating I would say notliing about it ; then one of them said, " Sandy McLeod, let's go in and take something." I did not know what " Saudy" meant ; I had never heard it before ; some of them took rum, some whiskey, I and some brandy ; I took nothing ; at St. David's I heard him called " McLeod j" there were several drinking there ; my wife and one child were then with me ; the pistol appeared to me to be a horse- rrian's pistol ; he had it under his coat in a bolt ; I believe the sword was not very wide ; he wore it hanging to his side ; there were other men there with swords, and I think one man had a pistol in a belt. By the Attorney General — I had never travelled from Smithville before ; the country is not thickly settled as in this country, and I took directions from others ; the person that I saw there was the prisoner ; I have no doubt of it ; I took particular notice of him, for, as he used me in that way, I thought if ever I caught him on this side, I would try and use him in the same way. Calvin Wilson — Examined by the Attorney General. — I live in the town of Wilson, in the county of Niagara ; I have seen the pri- soner at the bar, and am somewhat acquainted with him ; I was in Canada in 1838 ; I owned and kept the ferry from Youngstown to the town of Niagara — it is the lowest ferry on the Niagara river ; I saw the prisoner somewhere between the 4th and 15th .laniiary, 1838, at the house of James Miller, a public house in the village o( Niagara ; there was quite a number of people Avith him ; I knew a young man of the name of Raincock, who was with him ; I saw Mr. Miller pass- ing in and out ; I think John Mozier was there ; I suppose I saw a young man named Meredith that I wanted to see, and a man called Elmsley ; they Avere in a sitting-room in the public house. Mr. Raincock brought up the subject of the destruction of the Caroline, and how many were killed, murdered, or bur|^ ; this Mr. McLeod then replied, he did not think there were more than three or four ; he did not know but there might be five. One thing, he said, he 10 i it*- M' A I' : !■■';'■ ■i. ?> 111-.,': |i, -J -•/ 74 GOULD 3 ttEPORTER. :'■)■'] I i'; i • 'i 4 ^ ,"i V 1 i! did know, ihiit one " damned Yankee" or " damned rebel," got shot on the wliarf j Mozicr did not say any thing, if it was Mozier ; I don't recollect Elmslcy saying anything; I believe I am sure the prisoner said very near the words 1 have given; I have no doubt the prisoner is the man. Cross-examined by Mr. Spencer — Raincock had formerly boon a custoni-honse collector at the Canada side; I understood Mr. IMerc- dith had assumed the station of Mr. Raincock, whom I had known a year and a half; the last lime 1 saw him was a few days after that ; I recollect the time, because, for above a week, we were prohibited from landing ; tlio prohibition commenced on the 6th ; I had never spoken to McLeod, but I had seen him frequently, and knew him very well ; I am just as sure that I saw him there as I am that I saw Raincock ; and as sure of Raincock as of McLeod ; I am sure they were both there ; I don't know that I said any thing except to ask if Mr. Meredith was to be the collector of the port ; I inquired from Rain- cock ; I had heard that Meredith was appointed, and Raincock told me he was ; Raincock did not run away from Canada before Mere- dith was appointed ; I don't think he ran away to Europe before the Caroline was burned ; he was there that night ; I have heard that he did run away ; I think I saw him there after that time ; I believe I cannot tell any other conversation which I heard there ; there was a good deal of talking ; I war subpa:'naed to come to Utica ; I don't know but I mentioned at the time that I had heard the conversation ; I mentioned it to Christopher Herring ; he lives at Niagara ; I have not taken a great part in this " Patriot" matter. The Attorney General objected to questions that were not spe- cific. Mr. Spencer. — To the witness. — Have you belonged to a patriot lodge 1 That's specific. The Attorney General objected to the question. It would be ne- cessary to go into the rules and regulations of patriot lodges, and their objects, if such questions were to be put. Mr. Spencer said he wished to know whether this man had taken part against the authorities of Canada, that he might show the state of feeling which brings these witnesses here. Judge Gridley advised Counsel to change the form of the question. The obje :t could be gained by other questions. The examination was continued. — I have taken some interest in the movements against Canada ; since the destruction of the Caro- line, I have aided the Canadian refugees by giving them what little I had to spare ; at a rough guess, I have given them two hundred dollars ; I have entertained them at my house ; some were my namesakes. By Judge Gridley — Since that time I have given means to aid in promoting an enterprise against Canada. By Mr. Spencer — Have you entered into a concert to join parties to get up an enterprise against Canada 1 Judge Gridley informed "the witness that such an enterprise was an offence against the laws of this State, and if the witness thought his answer would trod to convict him, he might decline to answer. Witness — I decline to answer, then. M that I Ml .Iif en bl \\1 Tl t'vcrl con\i MCLEOD S TIUAL. nil b1," got shot /ier ; I don't the prisoner the prij^oner Tierly boon a )d Mr. Merc- had known a rs after that ; re prohibited I had never d knew him n that I saw Ti sure they to ask if Mr. 1 from Rain- aincock told cfore Mere- Q before the 3ard that he i I believe I there was a caj 1 don't nversation ; ara j I have 3re not spe- to a patriot ould be ne- odges, and had taken w the state le question. interest in the Caro- littlelhad ed dollars ; lesakes. to aid in oin parties rprise was s thought answer. t ]\Ir. Si'KNCER — Are you a member of any secret society, other than that of Freemasons 1 Mr. Hall said that question was like the last, Jiuliro (Ikiulkv said he might refuse to answer for the reasons giv- en before. WiTNEjijs — I rf^fiise, then. The cruss-exaiiiiuiition was then continued — I don't think I hav*; ever conversed with any body on the importance of getting McLeod convicted ; I have never said that the cunviction of McLt^od -vould get the country into a war ; 1 have never expressed to any one a de- sire to have McLeod convicted; I should be willing for him to hav(» a fair trial. liy the Attornkv Genkhai, — 1 think I have been desired not to talk with any one respecting my testimony on this trial. Mr. Si'ENCER — Have you entertained Benjamin Lett 1 The Attorney Geneual objected to the question. Judge GiiiDLEV — If he has entertained and protected him, it is an ofl'ence, punishable by indictment, and therefore he may refuse ; otherwise it is evidence, as it shows strong feeling. Attorney Ge.neral — If he answers the question, 1 may ask him questions respecting Lett's history, and the circumstances which operated on his sympathy. Witness — I refuse to answer. He also declined answerinir whe- ther he knew Lett. Cross-examination continued — Mr. Buck subpoenaed me here ; I am rather a poor man ; when I contributed the $200 I had more than I have now ; I have a family. The Court now took a recess for dinner, it being one o'clock The Court was again opened at two o'clock. Elijah D. Ejfner examined by the Attorney General — I live at. Bufialo ; I recollect the Caroline steamboat ; I was on board the boat while she was at Schlosscr ; I went to endeavor to get accommoda- tion for the night ; this was in the afternoon about two or four o'clock ; I said to the persons on board, how do you expect to defend this boat if she should be attacked ! The reply wag, they were a ferry boat, and were not allowed to carry arms; I saw persons go on board with arms, but I did not see that the boat was armed | I was a dept. marshal ; 1 saw no arms in the possession of citizens ; the persons who h-ul arms told me they were from Canada ; they were dressed as Canadians ; they told me they were going a hunting ; the United States Marshal had appointed a large number of marshals, and I sup- pose all those appointed were ready to go on any duty on which they might have been directed. Cross-examined by Mr. Spencer — I don't think Navy Island was good huntiniT ground then ; the commander of Navy Island, General Van Renssellaer, was reputed to be an American ; General Suther- land was there occasionally ; I don't remember how many stand of arms were taken from Buffalo. The Attorney General objected to evidence being given on this point. Mr. Bradley said the ATTbRNEv General had endeavored to show ■^ 1 * VitF ! 1,1 .1 Ii iTi '{; id COVhV S nEI'OnTKH. I.y tliis wiliu'ss that inni-lmls were appointed to prosorvc ncntnilitv, and flint tlioy woro t'lrioient ; and tlio prisoner's Counscd wished to sliow tlint 200 htund of arins were taken from Biiti'ulo and conveyed to the Island. CrosK-exaniination rcsnnicd — Immediately after ue heard of the movements of the patrio(s (iii (»ur shore, and before the hurning of the Caroline, the arms were stolen ; I went with the Sheriff, and we found Sutherland and others with arms in their hands ; the Sheriff' took tliem and other arms which were found ; they were half a car full ; 1 have only hearsay knowledge that tin; arms were taken back to Hulfalo, and were again stolen ; those were the only arms and munitions of war that I was aware were taken froniBulfalo ; I know nothing but newspaper report about the Batavia arsenal. Sc(/i lliuin(ti) — exumined by Mr. Woods — I reside at Vonngstown, Niagara comity ; I wns i,, Chippewa in December, 1837 ; 1 had work- ed there at the joiner business ; I was there when the Caroline was destroyed ; I knew Alexander jMcLeod; I had seen him repeatedly ; I saw him the night that the Caroline was destroyed, at Mr. Davis s, between seven and nine o'clock; I saw him pass through the bar- room ; there were a good many people there ; he passed out ; I could not say that he was armed ; 1 saw him the next morning near Mr. Davis's, a little before sunrise. There was not a crowd of men around him when I saw him ; he was in the street near Davis's, go- ing towards Davis's ; it was very early in the morning ; four men came in to get something to drink where I attended bar, before light, and they told me of the destruction of the Caroline ; I went dow'n to hear the news, as Davis's was the place where they met. Cross-examined by Mr. Spencer — I live now at Youngstown, Nia- gara county ; I attended bar for Patrick Cameron, eighty or a hundred rods from Davis's ; I went to Davis's to hear the news ; 1 saw a great many people there on the evening I have mentioned ; there were a great many soldiers there ; the reason for noticing McLeod was that 1 had seen him arrest people and the way in which he did it ; and when I saw him I noticed him ; i was sworn before Squire Bell ; I did not then say any thing about seeing him that morning ; I did not then recollect it; 1 believe I mentioned it to Mr. Corson; I don't know that there was counsel for the people before Squire Bell ; I swore then it was between seven and eight o'clock that I saw Mc- Leod that night ; I never was able to give any thing to the patriots; I never aided in secreting Benjamin Lett, nor did I ever ferry him across a river ; I decline answering whether I belong to a secret society. The Attorney General objected to the question, and insinuated that the counsel for the prisoner w^as endeavoring to elicit testimony on this trial for other purposes. Mr. Spencer said it was not the first time that the learned Counsel had insinuated that we were taking testimony for other purposes ; and I rise now to say to him, in presence of the Court and this audi- ence, that I am here defending Alexander McLeod, as his Counsel, on his trial for life. I purpose to put no enquiry, to elicit no fact, which has not a direct tendency upon this question. I am not here 1 \- V. €^ iiciitriility, vvi^slled to conveyed rd of the liming of i, and wu le Sheriff hiilf a car liicn back arms and ; I know ingstown, had work- oline was poatedly ; •• Davis s, I llie bar- id out ; I iiinij near d of men ivis's, go- four men 'ore light, ent down iwn, Nia- i hundred w a great e were a was that it ; and 11 ; I did did not I don't e Bell ; I saw AIc- latriots ; erry him a secret isinuated 3stimony Counsel urposes ; his audi- Counsel, no fact, not here MCLEOD 3 THIAL. t i for the United States tioveiument, to ascertain fiu-l.s lor the iisr* of the (Jovcnunent, which the Attorney (Jeneral would imply. If I know any thing about the (h-fi^utc of a man on trial f<»r \us life, it depends essentially upon the very kiu'l of testimony which we are seekinir to elicit ; and I would ask the Attorney (Jencral whither he supposes that an intelligent, law-obscrv iiig people will as readily be- lifnc those who are contributing iheir means, their inlluence and their feelings, in behalf of those who would make war upon the fron- tier, by saeiificing the individual now on trial, as they would .Mr KH'uer, a re[)Ula.ble citizen irom Huliido ! Does any man believe that Wilson and others will command [)elief like EtI'ner \ He is not as well ac(piaiiiteil with an Oneida jury as I am, who believes any such thing. Now, sir, 1 propose to usk this ((uestion of this witness and some others, to show that they are connected throughout with this movement; and 1 have some reason to believe that in this movement they are connected from the forty-fifth degree of north latitude to the entrance into Lake Huron; that the witness is one of those who have been engaged throughout in this movement, for the purpose of disturbing Canada, and dislodging it from the British Government, Tiie objection is a novel one. Does the Attorney General suppose that Wilson, the keeper of the ferry, who would take Benjamin Lett back and forth as often as he pleased, without lee or reward, will command respect and confidence like Mr. EHner, and others of re- spectability 1 I propose to show by this witness that he is connect- ed W'lh this whole movement — that he h;«s contributed, and been in concert with lliese persons, to furnish evidence to convict McLeod — and if need be, it could be proven by the Attorney General and Dis- trict Attorney — because I am in possession of the facts, that they have been in correspondence with them — giving letters to both these ofHcers, as to McLeod's crossing the river, or that he went into the boats. May we not, then, show that they arc connected with this matter, and see if they will command belief ! I will not shrink in bringing out proof in favor of a man whom I believe to be falsely ac- cused ; having no participation whatever in the affair. I do not be- lieve one single word of his guilt, and I will convince the world that I have warrant for my belief and scepticism. It is, that these men, who have been acting in concert, have not been able to conunand re- spect upon me, or disbelief before this jury; and if they would tell the truth, they would say that it is their heart's desire to effect the conviction of McLeod, guilty or innocent — that their other desires may be gratitied. The Attofinev GF.NEnAL thought the remarks of the learned gen- tleman somewhat extraordinary. The time will soon come, said he, when these remarks will be in place and proper; perhaps they are not so much so now. He would advert to the fact, which he had discovered, as had also the jury, that the learned Counsel had come here prepared to believe, that every witness on the part of the peo- ple, had come to perjure himself; and a system of cross-examination has been adopted, which, under any other circumstances, would not be permitted. He had not objected to this course as often as his duty required, though he had observed that whenever a witness took i! i I ■ ' .i :f! m •i r ■ ; '■ ■ ■•*, ,"i ■'f r; m OOlILD'i REPORTER. )t! « ': I ■ ii * ■: m tho Htand, there was n nncor. Tho lenriiod pontlcnian believed in liis heart, nn he sa\>*, weeks atid months a^Mi — and I iini of ihe same «i|)inii»n, that we mi know- H'Vl liiiii, if cxlrcinc of )t insist. I iinent upon ini. If the nie that he When we ight before e admitted To show ir — to show ;s, is so in- striction. association ts against sy m get- )er of such you give jd for the to work, MCLEOIi S TRIAL. 70 for l»iisiiien«i was broken up Ny the troiiMf?. ; f h:iv no douht about seiiu;,' till" prisoner tli;tt ni<)rniii;j[ ; it was early in the inorning. Siir/cs Yute^ — exaniined by Mr. Woons. — I reside in the we(*t part of the town «)f Clarkson, Monroe County ; 1 lived in ('arnid.i when the Caroline was dc^^troyed, al)u;ii 100 niih's from Toronto, down the Lake; I don'l know that ever I saw AfcFieod to know him but once before; that was in iN'iajrara v^no], Fioekporl, Xiatjara County ; i believe it was last April ; 1 ttoiild iiol say that 1 had seen him before that; I have been to (Jiieenslon several times; 1 was there in the latter part of the wiutj'r of 1S:V\ for the (irsttime; 1 cannot say positively that I saw liim ; I was mi the public house where there were |)ersons lakinjf somclhinii^ to drink ; one said this is something like the night after the burning of the Caroline ; another said, yes, damn them, we gave them " aleck," and I should like another job of the same kind ; I was told .M'-Leod was the person who made that ob-iervation. Mr. Si'i:.\cuit. — 1 hope the Jury will have sense enough to know that is not evidence. .Tiidgc GiiiuLKV said he bad heard much that was not evidence, iuul he regretted to hera" it. Counsel should avail themselves of the rules of evidence. The witness was asked if be saw McLcod there, and he said ho ilid not recollect ; he did not appear to know him at all. William W. Canwe/l — examined by Mr. Woo.)3. — I reside at UufTalo and have lived there nearly three years ; I resided at Chip- pewa when the Caroline was destroyed ; 1 know McLeod ; I had known him some two years before the Navy Island affair ; I saw him at Chippewa about 9 o'clock of the night on which the Caroline was destroyed ; he was going fvoni Davis's towards Macklein's ; I did not see him again that night ; I saw a number of men collected together, Hnd a mail with whom I was acquainted told me there was something going to take place ; I thought they were going to attack Navy Island ; I saw the Caroline on fire ; I saw McLeod a few minutes before sunrise the next morning on Mr. Davis's stoop ; there was quite a number there ; he came from towards the barn when I first saw him ; I heard him talking with some others about going to cut out the Caroline and the Avay it was done ; they talked about it being done pretty cleverly ; they talked that they had made the damned rebels run when they came ; there appeared to be two or three of the company there ; one said he saw a man lie dead on the dock ; and he added " damn him, he'll never come back to annoy us;" I don't know whether that was McLcod or the man that was with him ; he had a pistol in his hand ; it is three miles across the river there to Schlosf.er ; it may be a little shorter at the lower end of Navy Island, but it is usually called three. Cross-examined by Mr. Spencer — I know Mr. Corson ; I saw him often in Canada. I left Canada in March, 1838, and went to Buflalo. I have had nothing to do with the Canada affairs ; I follow the Lake ; I have been mate of a steamboat this season ; I talked with Mr. Corson on the subject ; I asked him if those depositions taken in Canada would come up against positive witnesses ; he said he did ■'•^^ i ■\i ■:i ,' U ; ^ ■r 'I :.t Wt h h. ' f !,r, (■ •j>' ) ao GOULD S KEI'ORTEK. l^ u m not know : he then askeJ me if I saw McLeod nnd 1 said 1 did the next morning ; he told me that he saw him that morning ; I only saw McLeod once that night; as he went through the door I knew him; I should have known him ten feet from him ; I had been told they were going to attack Navy Island that night, and I had some curiositjr to know who was going ; I went to Davis's to see what was going on ; I went on the stoop as McLeod was going off. There are two windows in the bar room that come out on the stoop ; the light of the door or windows shone so that I could see McLeod ; he went off pretty nuich in front of the door : I started the next morn- ing before it was cleverly light to hear what was going on ; I went down every nu)rning, almost, during the Navy Island alliiir ; I saw Col. Clark and Col. McNab ; Col. McNab's quarters were in Mack- lem's duelling ; I noticed jMcLeod because 1 knew he had been engaged in the concern ; I saw him in company with others who were in it. Mr. Smith told me tl e night before that thcv v.'ere going to do something ; I thought it was to attack Navy Island. I saw McLeod there — J. did not see him with any arms ; I saw the Captain of the Artillery tiie next morning or the mornintr following ; 1 ^aw Captain John Mozier the morning after the Caroline was burned. I saw an Englishman they called Byron, who went over. .'1/isun D, Qainb// — examined by Mr. Hawlkv. — I reside in the town of Columbus, Warren county, Pa. in December, 1S37, I resided two miles from Chippewa village : I recollect the destruction of the Caroline ; I then knew McLeod by sight ; J was not intiinafcly acquainted with him ; I think I saw him on tlie night of the burning of the Caroline, at Mr. Davis's, in Chippewa, about 8 o clock ; he ' was coming out of the bar-room as I w^as going in ; I saw him again the next morning, about sunrise, near Mr. Davis's house ; it was not. far from the end of the bridge that crosses Chippewa creek. I didn't know any body with him ; there were some that they call the Cobuiijj' troops; I think he had a belt on, but I am not sure that he had aky thing hung to it ; some one came across the bridge, and asked how they made it go last night ; he said they made it go very well 5 he said we killed two of the damned Yankees and destroyed the boat ; he then remarked he had Yankee blood on his sleeve ; I saw a light that night, but 1 was not near enough to know it was the light of the Caroline. Cross-examined by Mr. Spencer — I live at Columbus, and about three or four miles from Lottsville ; I never lived in Lottsville, but! know many that live there ; the patriot war was the principal cause of my leaving Canada ; I did not take part in that matter, nor have I since ; I came here as a witness at the solicitation of others ; Mr. Love, at Buffalo, came ; he was at my house a week ago last Friday ; 1 had never known him before ; I had a letter a week before brought to me ; the Attorney General had written to Mr. Grosvenor, who lives near Lottsville; somebody had informed the Attorney General that I knew something about it ; Mr. G. jsvenor is under indictment ; f went directly to Pennsylvania when I left Canada ; I made an affidavit before Squire Woodin ; I have no knowledge of ever having told this story to Grosvenor ; I told it to others ; Mr. Love paid my -4'inu. expense frt)'n M had a pi was in hay; I McLeoi ing, an( should next mc which I morning a deman Pettits's. expect t( know w to the ('( about su at. that h By th( my busii there. Justus live in C the nigh him then '_8« ; I ha versation , pewa, no Caroline Vjery nea: *' gpiJie fift( ■ there wi' boats ; tl . get into i ■or six ft was arin( went out into the 1 above wl were reti this, I thi after I sa the same the boat, embarkei Mr. Si Severn Judge be foui.L would bi gether 01 h '( lid 1 did the ling ; I only door I knnw id been told . I had some ee what was off. There ! stoop J the iIcLeod ; he I next morn- on ; I went idiiir ; I saw ro in Mack- e had been others who ■ were S'oing ind. I saw the Captain ring ; 1 fiiw 3 burned. I side in the er, 1S37, I destrnction t intiinafely the burning o clock 5 lie ■ r him again it was- not. sk. I didn't the Cobai;g' he had asj-^ asked how y well 5 he d the boat ; saw a light he light of and about sville, but i cipal cause nor have I thcrs ; Mr. 1st Friday ; re brought cnor, who 3y General idictment ; made an ver having 'e paid my MCLEOD S TRIAL. 81 expenses to Buffalo from Pennsylvania, and there I received $10 fro'n Mr. Hawley ; that did not quite pay my expenses, but I have had a promise of having my expenses paid and reasonable wages ; I was in Chippew the day the Caroline was destroye ', with some hay ; I think the government had the hay ; I don't recollect seeing McLeod until the evening ; he was a man I was not in the habit of see- ing, and that was one reason why I recollect seeing him, better than I should those I was iu the habit of seeing, and the conversation the next morning brought him to my recollection ; on the night on w Inch I saw him he passed out from the bar ; I was down the next morning, because I hoard they were going to pay money, and I had a demand against the Commissary ; I had staid that night at Mr. I'ettits's, about a mile out of the village ; he is a farmer ; I did not expect to get money from the Commissary before sunrise ; I did not know who came np and spoke to McLeod that morning ; 1 was going to the Commissary's office, when I was crossing tiie bridge ; it was about sunrise ; I don't know that I expected to find the Commissary in at that hour of the morning. By the Court. — My intention was to be at the office, ready to do my business ; I did not know but there might be some of the clerks there. Justus F. P. Stevens — examined by the Attorney General. ] live in Orleans county, in the town of Gaines ; I was in Chippewa the night the Caroline Avas destroyed; I know the prisoner ; I sav/ him there that night ; I have known the prisoner since the fall of '86 ; I have seen him six or eight times; I have never had any con- versation with hiin since the first time I saw him ; I saw him at Chip- pewa, not a great ways from ten to eleven o'clock, on the night the Caroline was destroyed. When I first saw him that night he was Vjery near the Niagara river. There is a canal or race, and it was S.o'me fifteen rods trom the head of that cut that I saw him. He was there with a number of others ; they were about getting into some boats ; they got into them and went off; I think I saw the prisoner get into a boat ; 1 am positive of it. At one time I was within five •or six feet of them; part of the men were armed; the prisoner was armed ; they rather layed up the river, off from tlie shore ; they went out of sight ; they started off from the head of the cut to get into the river ; I saw three boats ; I saw the prisoner next, a little above where they started from, pretty ^lear the shore ; the boats were returning to the shore; there were some rails burning there; this, I think, was not far from three o'clock, and four or five hours after I saw them embark. McLeod came ashore there ; three boats, the same number that went off, came ashore there ; after they left the boat, they went to Davis' tavern ; the point where McLeod dis- embarked was four or five roc'^ love the head of the cut. Mr. Spencer declined cross-examining him. Several other witnesses were called, but did not answer. Judge Gridley said it was very desirable that the witnesses should be foui-J, as, if possible, this cause must be finished this week. It would be very unfortunate if the Jury should have to be kept to- gether on Sunday. 11 m /^f- .'W -W ■■•V' W' m If' I ', fi^lr 'T-j f S'^ 82 GOULD S RKPORTER. 5 ■■'.; ill -:■ < w ^ U' lif I- m Mr. Hawley was examined to show that due diligence had been made to procure persons whose names had been mentioned, us wit- nesses. This was offered that counsel in summing up might not make use of the non-production of those persons to prejudice the case. The court here took a recess for tea. The court re-assembled at seven o'clock to hold a night session, for the purpose of completing the case for the [irosecution, if possi- ble. It was, however, understood that certain Avitnesses had not yet arrived, for whom attachments had been issued, but Judge Gkidley said he would take their testimony when they did arrive. His de- sire was to complete the case that week, if it could possibly be accom- plished. Mr. Woods statfed to the court that sickness in his family, which was likely to terminate fatally, called him home. He made this statement that it might not be imagined he abandoned his duty with- out good and sufficient cause ; but he vvas satisfied the pubhc inter- ests would not suffer so long as the .case was in such hands as those of the counsel who were associated with him. The Attorney General regretted the necessity which called the District Attorney home, but he was satisfied the cause was sufficient, and that it was his duty to go. He should feel the loss of the Dis- trict Attorney's valuable assistance in the progress of the case, and in the summing up ; but perhaps the District Attorney for this county, Mr. Jenkins, would take his place. Judge Gridley said hf had been advised of the state of Mr. Woods' family, an 1 lo deemed the cause sufficient to justify his ab- sence. Leonard Jlnson was called and examined by the Attorney Gene- ral — I am a carpenter, and live at Lockport ; I was at < hippewa in Dec. 1837, and remember the expedition against the Caroline ; in the night, the sentinel in front of the house called me up, and I saw the light of the Caroline burning; I was sleeping at Smith's liouse ; early in the morning I went over to Davis's, and saw a number of persons in the bar room, and among the company was Mr. McLeod ; I knew McLeod, and had seen him frequently ; I had -•>eeu him through that summei", perhaps, once a week, or oft^'ner; he was generally known ; he was deputy sheriff; I have no doubt that he was there that morning ; he was standing by the side of the l/ar ; I believe the lights had been blown out; it was just at th*- break of day ; the room was full all round ; it was a large room ; he had just been drinking, apparently ; he had hold of a glass, and had his hand on the counter ; they were all talking of the expedition they had been on that night, and which had done the greatest crime ; the per- sons with him talked as if they had been on the exredition ; he said, " I have killed one damned Yankee, and here's his blood," pulling out a pistol and exhibiting it. I don't recollect any thing else said by him ; when he said he had killed a damned Yankee, those that were there did not contradict him, nor express surprise, as though that was the first time they had heard of his being there ; when the sentinel called me, he said, " they have cut out the boat and set her ^1 on fir( liinc ness ; count ter's Cro pcop! in-, 1 fee! ; ffOlll wards West went Lundy pcwa, tavern Decern has be I went year ; and vei the mo then f(J ton thn way I liorsebi pretty get a i come (] Lewist living r in 1837 over at MCLEOU S TRIAL. 83 ncc had been ioned, us wh- ip might not prejudice the night session, ition, if possi- 3s had not yet UDGE GhiDLEY •ive. His de- bly be accom- family, which de made this lis duty with- 3 public inter- lands as those ich called the was sufficient, 3s of the Dis- the case, and r this county, state of Mr. ustify his ab- ORNEY Gene- Chippewa in Caroline ; in up, and I saw aith's iiouse ; number of r. McLeod ; id .-iecn him ler ; he was oubt thfli he >f 'he \mr ; I vf break of he had just acJ his hand 311 they had ne ; the per- on ; he said, »d," pulling ng else said those that , as though ! ; when the and set her ,1 J on (ire," or words to that cflect ; I drove Mr. Smith's team at tliat lime ; when tiie oiilbrcuk took place, there was no work in my busi- ness; lama native of liie United States, and was born in Albany county; I now work at my business; I am employed by Judge Por- ter's son. Cross-examined by Mr. Si'ENCEr — I have no connection with the people on this side wlio are acting against Canada ; I have feel- inc, but I suppose it is only such as any American citizcui would feel ; 1 was examined on this subject before S(iuire Bell ; I removed from Albany county at six years of age to Tioga County, after- wards to Ohio when I was 1!) years of age ; I afterwards travelled West to Indiana and 3Iicliigan ; I was there about three weeks ; I wont on to Detroit and crossed over into Canada ; I came out at Limdy's Lane on the Niagara River, and from there I went to Chip- pewa, where 1 arrived in January, ISIH; I boarded at Philo Smith's tavern, and worked at my trade till the outbreak, about the 1st of December; I was a journeyman and worked for Mr. Corson, who has been sworn here; I stayed in Canada till September of 1838; I went then to Ohio and remained there, in Lorraine County, about a year ; 1 worked at my trade there ; I then came back to Lockport, and remained there till last spring, when I went to Niagara Falls ; the morning I ft it heard McLeod was taken I was at Lockport, and then for the first time I told what I knew about it ; I went to Lewis- ton that same night ; Lewiston is 21 or 22 miles from Lockport, the way I went ; I arrived there about 10 o'clock; I went alone on horseback ; it was about the 10th of November ; the roads were pretty bad ; I went as a witness at the request of Mr. Bell ; I did not get a subpcrna, but I got a line from Philo Smith desiring me to come down ; I first told of this matter the morning before I went to Lewiston;! told it to Philo Smith just as I do now ; he was then living at Lockport ; he is the man who kept the tavern at Chippewa in 1837 ; Philo Smith testified in this matter ; we had not talked it over at all; I went over to Davis's the morning I have mentioned, out of curiosity, the same as i^ny body would have done ; I believe I spoke to no one ; they were talking about the expedition, but I '^armot tell what was said more than I have mentioned ; I saw the blood on the breech of the pistol. By the Attorney General — I went to Ohio in pursuit of employ- ment. Attorney General — If the Court please, I rest here. Mr. Spencer — I wish the Attorney General to understand my views <>i lliis case, if he rests, he cannot call evidence, to the main charge afterwards, but only in reply. The Attorney General — I have endeavored to come up to the ^•ule, and bring all my evidence up to it. I shall only call witnesses lor the purpose of rebutting testimony, though other facts may come out. Mr. Spencer said it must be understood that no cumulative evi- dence could be afterwards adduced. The Judge ^aid it was very desirable that the cause should pro- ceed as fast as possible. He called upon Mr. Spencer to proceed. it' r W: 1 ll ' \fl r^'M •■. . IV ' r 1; ivisi I Hii ick :^' Mcleod's trial. 85 .r c the sound law of the case or not, and whether the learned Judge who now presides on this trial will so regard it, I know not, but I feel bound to conduct this case on the broad grounds of what I consider the true princi- ples of the law as applicable to it. We shall then, in the first place, after a few more facts shall have been made to appear in evidence before you, insist that there can be no such offence as that of murder proved as grow- ing out of the destruction of the steamboat Caroline. And here allow me to say, that in the whole course of my reading — limited, I admit, it has been — I never knew of a similar case. It is now for the first time that we see an individual icting under the authority and by the orders of the govern- ment whoso subject he was, having been put on trial for obeying those orders. This is indeed a remarkabh? occurrence, almost at the end of the rirst half of the 19th century ! As the counsel of Alexander McLeod then, I shall have occasion to contend that there can he no such thing as murder charged against any of the persons who formed the expedition sent to de- stroy the Cproline. And k t me here add, that the question as to whether thn.t act was a justifiable procedure or not on the part of the British Pro- vincial Government cannot be entertained by you. The facts, gentlemen, to be adduced, will show that this party which made the attack upon the '■>: H- I ^ y: ' ' ,1 ji -e. -the insur- gents on the island were right or wrong, i.s wholly immaterial. Whether the British Government had been tyrannical, and had driven these people, to desperation, is wholly immaterial. The Canadian subjects of Great Britain had seen fit to revolt, and, with the aid of American citizens, had made open war in Car'-^i ; and whether they were right or wrong, it was a war, and all the rignts and immunities that belonged to those engaged in war, pertained to tliem. This is the broad ground on which we rest the case. We will show to you, gentlemen, that the federal government of the United Stales took this view of the case ; that they took cognizance of this offence, and demanded reparation from the government of Great Britain, and that at a later day the British government acknowledged the responsibility of that act, and declared that it was done in obedience to tlie British provincial government, and justified it as a necessary act for the protection of the subjects of Great Britain, then lix'ug in Canada. The fc ' ral government, then, under the constitution, had taken full cognizance of ' le whole matter, en bracing not only the invasion of our territory, Ijt also the destruction of ihe steamboat the property of one of our citizens, and the taking away of the life of anothc". All, all those considerations were presented to t!io notice of Great Britain, and our government, mind- ful of the nation's rights and ready to vindicate them, had demanded full and entire satisfaction for the injury which our country has received. But the individual who formed part of that public force of Great Britain stands excused, as he always must, from all the consecjuenccs of his action under those orders. As an individual offender ho is not answerable to any tribu- nal. Passing from this, I will now take up another branch of the case, in which I am well persuaded the intelligent Judge who presides here and ^;] I . V f # *i*-v... 'WW MCLEOD S TRIAL. 87 .> mvself sliall hiivn no fliflbrenco of opinion — wiiatevor may bo our rospi^ftivc views of tlic otiier fcntiu'i; of the c;i.so, and tli:it is tlu- point as to wln'tiicr McLcod hud any thiii;fvent before the grand jury. There may be a few exceptions, but I believe my assertion will be found to be correct. And permit me to add, that in my judgment, if this case were tried as often as the moon changes, new witnesses could be found to prove the case as strong as it has been now presented on this trial. But the commissions have been returned, and the evidence ^ill be read b fore yoi>. With a great deal of pains and perse- verance, iny respected colleague succeeded in finding some men, more or less, who were on board each of the boats which formed the expedition against *he Caroline. Twelve or so of our witnesses are of this descrip- tion. First, on the part of the defence, we have Colonel McNab, who proves tiae issuing of the orders to Captain Drew, the individual who had charge of the expedition. Colonel McNab states that the expedition, when planned, was a profound secret, unknown to any except himself and one V3 ?sMiK '' \m : ^1 98 GOULD S REPORTKR. hj' or two confidential ofTiotirs. Tliti party coIlLctcil on the shore, and went on biKird tlif ljo;ils, iiiifl then the ptirpusc of tli(3 cxiiodition wus d- "" 'i. MCLEOD S TRIAL. ^'J and went on iclurod, wlicn i(! expedition !d in iIk; ox- mark of ap. i (.'Xpodilioii. iisactioi), tlio ticliiovenient. iul(;rtakiii<^^ is s tluis made iiut appear. :)i'(Irr liiat no already well tliemselves. le expedition st iiiliinatelv. they respee- surely liivoly ! boat wliici) fu of tiio boat own, and the ler says that says that ho Oilier pcr- and say tliat 1 of the jury, irty, to stand agara. would ider IvIcLeod lubstance the be iirst laid ith attention, itnesses who itisfaction of )cak of what ition. These mittcd of no J me times be ersation with ow we will the year, be- d Hamilton, md, and was jreak in Ca- at Hamilton With respect k'as received in Warren as a witness, ssness ; and n'e whf has iu recollect, is the fellow who sold his load of hay, and went to got pay m( lit before day-light of the cornnussary. We will then show you, gcnilcnien, that iMcLeod was at Chippewa, in Davis's tavern, on the day of the di'struriinn of the ( 'arolinf! ; that he went to bed early, as he was fatigued, having hein one of till' party wiio row(;d round Navy 1n1:iikI. 1 le reniained in l)i'(l till sun- down, wIkmi hAV S rUOCKlUHNOS. Jiuliff ("ii'idli'y vfmnrkcd, dii tlic opi'iiinu; .' wl>u1iI oC necessity go over into the (ollowinij; week. Mr. Hall said, that he had no doubt that the counsel on both sides wore extremely anxious to brin^f the trial to a (dost! this week. It was a trial of very great imptirtanee, and orK; which iiad excited such universal in- terest, that the coinised might i\;v\ bound to take greater latitude in the pro- secution of it than under ordinarv ■ircuinstaiicM's. It was expected of them, that all the cireumslancfjs conm cted with the transaction would be fully developed, and the people would be disap[)ointed if they were not. For his own part he would endeavor to throw no obstacle in the way of bring, ing the cause to a close at the earliest possible hour, but it was nujre than doubtful, if the desire of all parties to close it this week could bo attained. The counsel for the defence than commenced the examination of wit- nesses on behalf of the accused, and culled to the stand Alexander C. Hamilton, Esq., who was examined by Mr. Spencer, to contradict one of the witnesses for the prosecution, who dc^posed to a con- versation between him and Raincock and McLeod, after the alfair of the Caroline. I reside at Niagara, U. C, and have resided there since the summer of '35, excepting some partial absence. 1 knew William Raincock very well ; he was deputy collector of the customs at Port Niagara ; caimot say the exact period he left Canada, but he was not a\ Niagara in the month of November, 18;37 ; I rccolh'ct the date from my own marriage, which took place about that time. I went to England in January '87, and when I re- turned in the beginning of November, or the last of October, he was not there. I took my wife with m(; to England; 1 had bei'u very intimate with him ; to my knowledge he has not been in Canada since, and could not have been there without my knowing it, I think ; he went to I'ingland I understood when he left Canada ; the outbreak occurred after I returned from England. Cross-examined — He was deputy collector of customs at Niagara; the office is just opposite the ferry ; the principal collector was Thomas McCormick — is so still ; Raincock did not do buisness at the office of the principal collector ; McCormick only sees tliat tlie accounts arc correct ; I had known Raincock since the summer of '35 ; he was a native of England ; he was purser of the steamboat Col)()urg, when I first knew him ; I cannot say which party he belonged to, and I dont't know that he took part with the insurgents ; to my knowledge he was not there ; I can't swear he was oot in Canada of course ; there were, previous to my leaving, two parties — I .:Jf !^^ .i\ 'Il '^!' 4 i' I i; ■' ' 1 ' • ! h h . Ill '4 r,' ■ ^. IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I 1^ |2.5 2.2 IL25 i 1.4 2.0 1.6 Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 -^^ V lV \\ 6^ ^Jg "^i^ "^^ ' ^fe; . i>*; ■%^^ ' -■* *' ._, ' inconvenient for him to leave home at that on account of his poverty. He is a poor him to keep silent upon the subject. How long have you known Drown ? I have known him ever since he was a boy character called in question in a court of justice. From your knowledge of his character how does he stand for truth and veracity ? I have never heard him called in question for truth and veracity. Mr. Spencer objected to this mode of interrogating the witness. The court remarked that the rule laid down by Judge Oakley was to ^ agait T k^: y. / *. 5- J MCLEOD S TRIAL. 95 ive induced inquire as to the character of the witness for truth and honesty. He says the inquiry as to trutli and voracity is too limited, since wliich 1 liave adopted the same rule, and 1 know of no decision of our Supreme Court against it. The Attorney-General remarked that that decision had arisen from the circumstance that the witness produced, had proved himself to be a despi- cable character, living in illicit intercourse in the same neighborhood ; it came out on his own cross-examination ; then the question arose whether the party introducing him might not show that his character, though bad in some respects, was good so far as his truth and veracity were con- cerned. And the Circuit Court ruled that they might. It was also dis- cussed before the Supreme Court and confirmed : Bkonson dissenting. Mr. Spencer — This cross-examination I supposed admissible under the decision in 12 Wendell. I therefore allowed the inquiry to be put to Mr. Bates as to the general character of this man for truth and veracity. Yet I hold that I am allowed, on cross-examination, the same right which would be allowed when I call a witness as to the credit of another. The court decided that the Attorney-General was within the rule ; it was proper to sustain the witness by showing that he had a good cha- racter. They had a right to inquire into such particulars as involve his charac- ter in its general principles, as had been decided by the Superior Court upon the reasons assigned by Judge Oakley in the first place ; and sec- ondly, that when a witness is sought to be impeached, it is not solely what his character is for truth and veracity, but you may go to the length of asking what his character is for truth and honesty, — not whether he is lascivious or intemperate, but as to his integrity, for that goes to his truth j for if a man is dishonest, he is not a man of truth. Judge Oakley gave the soundest reasons for his opinion ; I have, therefore, adopted the rule, and I understand that others have. Mr. Spencer — How is his reputation in your community for truth and honesty ? For the last two or three years it has been good. Before that it was rather bad. Mr. Hall — As to Mr. Brown's previous bad character, did it reach his truth and veracity ? He was reputed dishonest, and a man not to be re- lied upon. ; A Juror — How long had he lived there ? Six or eigut years. When . be went to Canada his character had become good, and remained so after his return from there. I think he had redeemed his reputation two or three years before he went to Canada, and I have heard of no relapse. James A. Sears, examined by Mr. Spencer — I reside at St. Catha- rine's, in the district of Niagara ; I resided there on the .5th December, 1837, when the rebellion broke out ; after that I entered the service as a captain in the incorporated militia, and was at Chippewa ; I was in com- mand of the in-line piquet guard, from outside the main guard, which terminated at a little bridge near Davis's tavern, to the point opposite the end of Navy Island. The bridge was about half way from Davis's tavern to the place of embarkation. After crossing the little bridge, outside the main guard, there was a sentinel stationed. The first sentinel on the piquet guard was nearly opposite the place of embarkation, and perhaps ten or twelve rods from the main guard. There is a road there, and the sentinel was in that road. The place of embarkation was' very .Jiear s?.J t<:':':^ ill- M GOULDS REPORTER. where the cut entered the Chippewa ; there were a large number of trees there, quite close to the shore, and between the shore and the road ; they form a very beautiful shade ; the second sentinel was about six or eight rods above the cut ; there was a guard-house built of boards ; it was about a quarter of a mile below the lower point of Navy Island ; there was a sentinel there on the bank of the river; there was another sentinel at the door of the guard-house ; there was another sentinel about 20 rods further up on the bank of the river ; all the sentinels were in the road ; there was another sentinel 20 rods further up ; they were placed along the road, 15 or 20 rods above each other ; there were frequent challenges that night ; I was up all night ; I was there at the embarkation of the ex- pedition ; I do not know that Col. McNab was there ; it was so very dark I could not distinguish any one, unless 1 was very particularly acquainted with him ; there were seven boats in which the men were embarked ; I was mix'jd up with the party ; I then knew McLeod ; I had known him very well since 1834; I was acquainted with him as with a man in a public oflice ; 1 did not see him in that party ; when they embarked they began to row ; then some of the sailors landed and " tracked ;" 1 received directions that when the sentinels saw boats approach, they were not to challenge, lest it should be heard on Navy Island ; I instructed the guard to that effect, and to prevent mistake, an officer of Col. McNab's staft* rode up the line of sentinels as the boats went up ; the expedition was to be kept as secret as possible ; I went with the expedition as far as I had charge ; there was another officer who had charge of a guard above my guard that night ; when the boats took their departure from the Canada shore, I did not sec them ; it was then about ten o'clock ; I went back to the guard-house, and remained there until I saw a light at Schlosser, of the Caroline on fire ; I then went immediately down to where the beacon light was just blazing up ; I stopped there but a few moments ; I went to the orderly house to some officers who were camping on the floor, to in- form them of the circumstance ; I then returned to the beacon light, and the fire of the boat enabled me to see it was the Caroline, as it got her steam up ; the beacon light was to aid the expedition on its return ; they returned between two and three o'clock ; the general orders were, that no person should pass the sentinels without the countersign ; when the expedition returned, I went among them ; I had some friends and acquaint- ances in the party, and I wished to learn the result ; I saw all the men as they disembarked respectively, and I learned these were the five boats which had reached the Caroline ; I did not see McLeod among the num. ber ; I saw the other two boats come in ; I think it was daylight ; the beacon light was then nearly burned out ; I understood they had separated from the rest of the party in the river ; the other party had all gone to their quarters silently. I was frequently in Davis's tavern in the night, and also in the morning ; T saw nothing of McLeod there ; I saw him about noon of that day ; I and another officer had gone up the river to near the residence of Capt. Usher, who was murdered ; while standing there, looking across to Navy Island, to observe their movements, we saw them bring out a cannon from behind a pile of cord wood, and prepare to discharge it ; we looked down the road, and the officer that was with me said, "here comes Col. McNab;" two men were coming on horseback! I said one of them is McLeod ; they passed on ; the Navy Islanders fired at the horsemen, and that fixes it on my recollection ; there had been MCLEOD S TRIAL. w a man in a cannon fired from Navy Islmid almost, I think quite, daily, and frequently in the night ; they fired at the people on the Canada main, and people were killed. The Attorney-General olijoctcd to this course of e.xamination. He .said they were not tryin{^ the Navy Island affair. Mr. Spencer said he should show yet that two hundred stand of arms had heen stolen from JJufllilo. These circumstances, immediately in con- nection with the affair, were competent to he given in evidence. He wa»< surprised that the learned Attorney-General should he so restive on this huhject. Mr. Jenkins argued that the evidence was inadmissible. Judge Gridley .said the opinion of the Supreme Court would he hindinii on him, and would govern him if the pri.-^oncr's counsel should offer testi- mony on the question rai.sed Inst night, to which he supposed the counsel would except, that he might carry it up to another tribunal. The killing of person.s on the Canada shore, therefore, was not admissible in proof on this trial. Mr. Spencer — VVc propose to show that three persons were killed on the Canada shore. Judge Gridley — I overrule it. The examination resumed — The river there is not frozen over in win- ter, and persons accustomed to it may cross with perfect safety. Mr. Spencer — Would not a steambeat, in the employment of the Navy Islanders, be of great use to them, and a great annoyance to the Cana- dians ? Mr. Jenkins — I object to that. Judge Gridley — It is overruled. By the Atlorney-General — I am a native of Lower Canada, forty mih's east of Montreal, Caldwell's Manor ; I have resided a few years in Ro- che.ster, in the county of Munroe, in this State ; I went there in 1824, and returned in 1828 or 1829 ; I came from the Gore District ; I resided at Niagara Falls in 1818, and in the Gore District in 1820 ; in the close of the spring of 1815, after the close of the war, I came to the United States to see the different parts of the country ; I was in the army during the latter part of the war ; I was drafted into the incorporated militia in 1813 ; I went to Rochester for the purpose of publishing an elementary school book ; in the Gore District I cultivated a farm of one hundred acres, and I followed the business of house joiner ; at Niagara Falls I followed mv trade. Judge Gridley objected to the examination. He said if they were to have as many biographies as witnesses, they would not get through for a long time. Examination resumed — I resided in St. Catharine'.s ten years ; I was a political writer for a newspaper ; I was a reformer, and was out in oppo- sition to the government ; but circumstances have changed ; the militia with which I was connected was raised by enlistment, and they were sta- tioned like a regular army ; the persons I enlisted were colored men ; I suppose they were natives of the United States ; I had this company at Chippewa ; the recruiting officers were not colored men ; no colored men were allowed to be officers; I was commissioned by Sir F. B. Head in person ; there were Indians in the service. Judge Gridley thought this was not relevant. 13 This cause should be ;j*i ,.,;,,,^', K i'-'l. m '^ oe fiOULD S REPOKTER. tried in n hwycr-likc way, but much evidoncn had been given that hnd The time of the court was too vuktablo ti miic ic case. IK) sort of relevancy to to be thus consumed. Cross-examiuation n>sumcd — I was at Chippewa on the night of the drstruclion of the Caroline, as 1 iiave stated, and these persons were the sentinels; wlien the beacon-light was burning, it was ligiiter out of tho shade of tho trees than b(!fore ; it was an excessively dark night ; the trees might not all have ln-en willows ; while I was present, no person was allowed to pass the sentinel without the countersign ; 1 was always challenged myself, and that led me to suppose that they were attentive to their duty. I came down from the guard-room when the men were as- sembling to go on the expedition ; I knew there was an expedition in pre- j)aration ; I was told by a friend who was one of the expedition ; when the expedition left the place of embarkation I saw five or six men remain at Chippcnva creek ; I did not see many persons ; 1 did not see hundreds ; I could not distinguish persons going on the expedition without a close >'xamination ; it was very dark ; it was a secret expedition ; 1 was invited to go ; they only wanted volunteers and some sailors to man the boats ; (^ol. McNab was the oflicer in cotnmand ; I know him by sight ; Captain .\ndrew Drew was point(!d out to me some days previous ; I knew John Klmsley in the same way ; he was an officer in the navy ; I was told, in- <'.luding sailors and volunteers, there were about sixty persons in tho expe. dition ; I know Rowland McDonald, George Chalmers, John B. Warren, Captain Mozier, and Richard Arnold ; Arnold was wounded in that expe. dition ; I cannot say that I saw Col. McNab there that evening; I heard captain Drew giving directions about the embarkation ; I saw no person in uniform ; 1 think there were five persons in that expedition that 1 knew. The court now took a recess for dinner. Thursday, 2 o'clock, P. M. The proceedings were resumed by the Attorney-General, who continued the cross-examination of Scars. How did the men go when they got out of the boats — in military order ? No. How long were you there altogethei* ? Can't exactly say. Did you wait for the other boat that lagged behind ? Yes. The companies of these four boats went away together ? I can't say. Did tho fifth boat come up after the others left ? Yes. Were people coming back and for- ward ? I couldn't say that. Only a few were in the secret ? Yes, very few knew of it. When did you get to Davis's 1 About two or three o'clock at night. Did you speak to any one of the party there ? No. Did you find any in the orderly room ? Yes — one person. Was that either of the persons that you saw when tl ey landed ? Yes. When after that did you see McLeod ? I saw him between ten and twelve o'clock the next day. How do you recollect that ? From the circumstance of their firing at him. How far off" was he ? A short distance. On foot or on horseback ? On horseback. Did you speak to him ? No. Did he not accost you ? It strikes me he did on his return. When did he return ? In the afternoon. At what hour ? Can't say exactly. Had you dined ? No. What hour did you dine? No particular hour. Have you been present during the trial ? During part of it. When did you arrive ? On Tuesday morning. Have you been present all the time since ? No, one MCLEOD .S TRIAL. 09 :^n that Imd too vulimblo night of the ns wore the r out of tho : night ; tho it, no ]H!rson was always nltontivo to en were us- ^ition in pre- lltion ; when men rcmuin 30 hundreds ; ithout a close 1 was invited n the boats ; ght ; Captain I knew John was told, in- 3 in the expe- 1 B. Warren, in that expe- lay I was absent. Have you taken an active part as agent for tiie pii- ? No. Have yon doiie ar.y thing in that way ? I ha not. ling I heard law no person idition that 1 ock, P. M. vho continued itary order ? ay. Did you companies of ho fifth boat jack and for- Yes, very two or three there 1 No. Was that When after ire o'clock the ance of their )n foot or on Did he not d he return ? d you dined ? ive you been arrive ? On e 1 No, one 1. sonei' you acquainted in Niagani ? A little. Voii know some of the inliahi- tants ? Yes. Do you know .Mr. Hamilton? Slightly. Did you know ih(! Deputy Collector ? Raincock ? Yes — do you know him i No. By .Mr. Spencer — Did the fit'ili boat arrive before the others left ? A considerable portion of the persons in the others had gone. By a Juror — I think it was a mile from the place of embarkation to where the last sentinel was posted. Mr. Spencer thfii proposed to bring forward tlu^ ducumcntary evidence. Ho would first introduce the various odiei.il doeuments that had refer- ence to the negotiations at present pending between the (.iovcrnment of the United States and Great Britain. First — Communication to our Minister in England. Second — A communication from the British (iovernment to Mr. Fox. Third — Instructions from Mr. Forsyth to Mr. Stevenson, given shortly after the aflair of the Caroline. Fourth — Letter of Mr. Stevenson to the British Government, demand- ing satisfaction in this matter. Fifth — Answer of Lord Palmerston, who was Secretary of State for Foreign Afiairs, to Mr. Stevenson. Sixth — A letter of Mr. Forsyth to Mr. Fox. Seventh — Letter from Mr. Fox to Mr. Forsyth, with accompanying documents. Eighth — Letter from Mr. Fox, r2th March, to .Mr. Webster, Secretary of State. Ninth— ^Letter of Mr. Webster to Mr. Fox, dated April 24, 1841. He (Mr. Spencer) did not know but these would be all that might be ne- cessary. There were others which he desired to introduce. These had all now been published, and were public property, which was not the case when the argument was had before the Supreme Court. The Attorney-General asked, with what intent ? Mr. Spencer thought the gentleman could scarcely misapprehend him if he recollected his (Mr. Spencer's) opening. It is with a view to present the question in such a state before this court upon tho traverse of this issue, that having established the fact that this was the exercise of the public force of Great Britain, and being acknowledged as an act of the public force on the part of Great Britain, the individuals who acted in obedience to their orders, are not individually responsible. Substantially upon the princi- ple contained in Mr. Fox's letter to Mr. Webster in March last, and the acknowledgment of Mr. Webster in the matter — both Governments insist- ing that there had already been an invasion of their respective territories. Attorney-General — That is, a state of war ? Mr. Spencer — Such a state of things that when they were there, the whole of the party were acting in obedience to the orders of the govern, rtient, and are not individually responsible. Although the Supreme Court could not look into the whole case, yet here upon the traverse of the in- dictment, we are enabled to do so, and by means of this documentary evi- dence to show the extent and state of the war. We intend to enlarge very considerably, to show int, tu f^ivc aid, and Ntr(!iir;th, and succour, I wtnild ask wlicthcr, as hctwcdii the Ainorican people and (treat Britain, persona on thu Canada Nhorc woidd not have had a riffht to work tiio destruction of that boat wherever they ciaild liiid \\vjr, whether in tlieir own waters or ours 1 Would it not be a itro|ter matter of sclf-defenco f Where was this warlike movement I VVe are to look to the surrounding circumstanees. They were divided by a rapid Ntrcam, and but little above the mighty cataract over which no human being i!ver went alive. It was therefore extremely perilous to navigate that stream with row-boats at any time, and particularly ut tluit season of the year. They iiud no steamboats or armed vessels. A steamboat came down, say for liostile purposes. How was it to be guarded against .' In the day time, when the steam was up, what would be the use for a few row-boats to make an attack ? with lier steam she could run away from them, or she could run down, ami run over any boats whicli might bo brought against her. They could not come out in the day time, when tin; boat wa.s in active employment, with steam up, with any prospect of suc- <;ess. How were they then to come at her? 1 ask whether they were bound to let her be running continually to strengthen the post, so that they might make a descent upon Canada ? Were they bound to lie by and do nothing to prevent supplies being sent to the Navy Islanders ? I think your honor will sustain the doctrine, that they had a right, and that the Attorney-General will not contend that they had no rigiit to attack those upon Navy Island, or to attack the boat at Navy Island. I think that he will not contend, that with this rapid stream running past, and the cataract below, and no means to get at the boat in the day time, that they were not justified in making the attack at night. What were they to do ? Would you expect them to come from the Canada shore round Navy Island, with the whole island bristling with bayonets pointing in every direction ? Would that bo tbuught practicable ? Would any person think that cxpe- dient ? Surely not. When they came with their row-boats, would it not be the easiest thing imaginable for the steamer to escape to Schlosscr, or up the river ? Let them look at this subject as if they had some know- ledge of military movements. Could this boat have been assailed with any hope of success in the day time, in the vicinity of Navy Island or Schlos- ser ? 1 trust not. Where then is that boat to be destroyed, if at all ? Here in Canada were the commanding officers — were they bound to lie by and be destroyed through the instrumentality of that boat. — let her go on whilst they did notliing i Would they fold their arms and never fire a gun ? Must they remain at home ? Is it military, is it prudent ? Then what are they to do? I repeat the question. They must do one of two things — they must destroy the boat, or allow her to remain unmolested for their own annoyance. Were they bound to submit to her annoyance ? They had a right to work her destruction for their own security and self- defence, to prevent a descent, for they knew it was intended to work a re- volt in Canada. They knew that they would have many of the discontents rallying to their standard. It was not whether •'iOO or even 2000 were upon the island. They had only to erect a standard upon the spot where they could rally. This was a gathering, a nucleus or rallying point from which a descent was to be made upon the province of Canada. They had 1 i I'l ;.'-i'€- k I.; ?• ; ■^ W 102 UOITLD's RCl'OHTKR. crtTtfd the Mandnni to wliich the diHOontentpH wore ready to fly ; a revolt had Itruii nh't'iidy titU'iiiptod at Tonnito and put down l)y the inilitiu. It was ititeiidrd again to futi". (Canada. How was it to hu doiio ? Hy col. It'ctin«; sidlicicnt niatt-rials at Nuvy Island, and through tin' instrunu'ntidity of a slcand)')at, to rnako a dcsciint upon tht; Canadian main. Now I would Nid)tnit to your honor, whether they hud not a right to juit it out of the power of this party to annoy them, hy destroying an instrument which was calculated to promote and further the views of the attarking party ? Let me illustrote tliia matter. Suppose the ohject of thu invaders was to get across to thu Canadian main — suppose they go across to (Irand Island and cut down tind)er for the purpose of making a flotilla to carry the at- tacking party. Grand Island is within the territory of the United States. Will iliis court, will any court, will the law hold that the Canadians, knowing that this flotilla was constructing, would not hav(< a right to go upon ( I rand Island and destroy the timber, and those engaged in making the flotilla, as well upon (Jrand Island as upon Navy Island ( Let us see how it is it> our (mn country. How was it with respect to one of the Sjmnisli islands in I'Morida, only a few years ago, perhaps 1818, when an- noyance was expected to the United States from the occupants ? They hud not opened their batteries upon thu United States. Not at all. It was a province, belonging to Spain ; and what did our peace-loving pre sident, Mr. Moiu'oe, do? He sent the public force ol' the country against them, for no other reason than that it was a n)edium of communication by which slaves wore introduced into the United States. A force was sent with iustruc- tlons to destroy the island. Wo have the documents to show, your honor, the grounds which he presented for doing as he did ; for no other reason under the sun was that public force put on foot and sent to the island — for the purpose of capturing those who were there, after having been requested to surrender, if they did not do it voluntarily — than that it would atlbrd opportunities for the introduction of slaves, and interfere with our revenue ; the Spanish authorities were so feeble, as not to be able, or they did not exert their power, to dislodge those persons who had taken possession of the island. It was far from being a case like the one before us. There was not the slightest j)retence of personal danger ; no other reasons were assigned than frauds upon the revenue and the introducing of slaves. Suppose the possessors of the island had not voluntarily surrendered, and our batteries had been opened, and they slaughtered — now let me ask if it would have been tolerated had they taken the commander, or a sailor who obeyed orders, and hung him ? I ask the Attorney-General to say — if he knows, from the authority of the Supreme Court, or any other authority, in which way they would be murderers? This was a case in our own country, and the President put it upon the acknowledged law of nations. I allude to the occupation of Amelia Island. It was earlier than that of St. Marks. We have the orders here. It was not for the suppression of piracy, but to prevent the introduction of slaves, and frauds upon the com- merce. Had the United States declared war against Spain, or Spain against the United States ? Was it the exertion of the force of the United States against Spain which constituted war, and which worked the indivi- dual irresponsibility ? Never was there a more heterodox doctrine put forth, than that there must be a declaration of war to work individual irre- sponsibility. When General Jackson had command, he had express orders not to enter any of the fortifications of Spain in Florida. The orders MCLRODS TRIAL. uc. fly ; a revolt ! iiiilitiu. h r. ? Ily coU itruiiKMititlity til). Now I put it out ol' iimciit wliicli ■king party i iiders wus to Jraiul Island curry the fit. nitod States, e Canadians, a right to go L:d in making Let us SCO one of the 18, when an- mis ? Tht-y ot ut all. it ing pr< sident. uguiiist thcni. lion by which t with instruc- ', your honor, 1 other reason le island — lor eon requested would afibrd our revenue ; they did not lossession of us. Then- reasons were g of slaves, endercd, and me ask if it a sailor who to say — if he er authority, in our own of nations. than that of ippression of )on the com- n, or Spain jf the United d the indivi- doctrine put dividual irre- press orders The orders were given expressly, hut what did ho do / IIu deeniiMt thai tho I'uited States rt'({uired it, and that ihi: Spiuiish iiiitliDrilirs wi'r<- too f iMc to con- trol the Indians. Ho nian-licd into Floridii, ikiid took the forts of I'loridn. Won it ev«!r ilreainid of or thought of, that (icn. Jackson and liis nnny were murderers ? They killed nifii then' — ihey look Ainhri-^ti r :iiid Ar- hulhiiot, and tried them ami executed them, it cannot lie iluit an army act- ing hy order of the government, whether li^ilit or wrong, are murderers. It is not so. It is revolting to every man. ('urnpaii! this case with the oin in (piestion. It is evident that tlit! I'nited States and England are both desirt)ns of maintaining peace. It was not intended to interrupt the friendly relati(jns of tlie countries. It was intended lor nothini; mon- nor loss than to work the destruction of au instrument of annnyanee, which was threatening immediate destruction to them.selves. Hci-ause they could not reach it in the day time, they must seek an opportunity when they could reach it, and at such jioint as they could tind most praclicalile in such extremities, and with such means as they were able to employ ; and in the employmi'Ut of such means she was destroyed. I will go furtlnu* and say, that it is not a question at all whether this power and authority were discreetly and properly exercisisd — that is not tho question. The Uritish liovernmcnt may have been in tlx; wrong throughout, and our ( }o- vernminil may demand reparation or satisfaction, or find just cause of war on our part. It does not at all involve McLeod, nor any other one charged with Urmg of that party. There is a wide distinction between a government being wrong and the soldier being wrong, and is it not intol- erahl(! and revolting, that individuals should be thus held responsible ? Let us (;hange the tables, and sec what would be thought by our govern- ment and country, if the Canadians had seized u[)on (Jrand Island, whilst wo were at peace with Gn;at Britain, and fortified it. Why, there is no war — Great Britain has not declared war — Canada has no authority to declare war. Would it not be justifiable for the American Government, if they had it in their power, to send an armed force to drive them away ? 1 ask, if the Attorney-General would deny that authority? And could they not do it without waiting to have the British government declare war against the United States I Would not they have a perfect right to do so ? I apprehend they would have. By that rule of reasoning, if a com- pany, or regiment, were sent there to dislodge the invaders, should they be taken and treated as murderers ? If our government had ordered a regiment of men to take possession without declaring war, and they had opened their batteries, they would have been held to be murderers, not- withstanding they acted under the authority of the government and in obedi(!nce to the commands of their oflicers. It is a strange doctrine that you have got to work up a war in all its forms before individual irrespon- sibility can be recognised. Thus far I have presented this case as one where the proceedings, so far as respects McLeod, would be entirely justi- fiable, because of the defence of the inhabitants. But I have yet another view to submit, it is that the pui)lic documents to which I allude, show that this matter is already taken possession of by the government of the United States as an entire transaction, that they have taken cognizance of it, and have a right to take cognizance, and having taken cognizance of tho mat- ter, it is within the jurisdiction of the United States ; it is not in com- mon with any inferior jurisdiction. The United States alone have the treaty-making power. The constitution takes it from the individual Stales 104 tiOULD S REPORTER. and places it with the United States, It is with the executive department vho went in the boats to destroy the Caroliun • •mbarked and the boats put off from the shore, where was said McLeod ? If you do not know where he was, do you know any place where he was not ? If so, name if. Thirteenth. Flow long after the boats left the shore on the expedition to destroy t!io (Jarolino, was it before they returned to the Canada shore again ? At what o'clock ? In what direction, in reference to the Canada shore, did those bo'its proceed ? Fourteenth. When those boats returned, where were you ? Where were you, whon all the men in those boats got out of thorn and landed on the Canada shore I When they landed, how near to them were you ? What portion of the men who disembarked did you observe the faces of? If you cannot tell where said Alexander McLcod was at that time, can you mention any place where you know he was not ? If so, name it. Fifteenth. Between the departure of the boats on this expedition from the Canada shore, and their return to it, what means had you of knowing what became of the Caroline ? What appearances, if any, did you see, and what sounds, if any, did you hear in the direction of Schlosser ? Sixteenth. Did you ever furnish the Lieutenant Governor of Upper Canada with the names of the officers and men who destroyed the Caro- line ? If yea, was the name of the said Alexander McLcod among those names as furnis|ied ? If nay, why was it omitted ? Seventeenth. When did the forces under your command, or any part of them, take possession of Navy Island ? Where is Captain Drew at this time ? Lastly. Do you know any other matter or thing, or can you say any thing touching the matters in question in this cause that may tend to the benefit and advantage of the said Alexander McLeod, besides what you liave been interrogated unto ? Declare the same fully and at large, as if you had been particularly interrogated thereto. The foregoing interrogatories settled and allowed this 10th day of Sep- ttnnber, 1841. _ ELIAS RANSOM, Jun. . .^ ;.,. ^ ^i. First Judge of Niagara County Court and . .^ j,*'" ; Counsellor of the Supreme Court. Interrogatories to be administered to Niel McGregor and such other witnesses as may be produced, sworn, and examined on the part and be- half of Alexander McLeod, in a suit now depending in the Supreme Court of judicature of the people of the state of New York, before the justices thereof, at the suit of the people, for raurder, before Seeker Brough, Eiaq., •;; H -1 Mcleod's trial. 113 Adam Wilson, Esq., James E. Small, Esq., James Mcrvey Price, Esq., and Francis Hincks, Esq., all of Toronto, or b«.;fore any one or more of them, under and by virtue of a commission issuing out of the said Supreme Court of judicature, and under the seal thereof, pursuant to an order of the said court, entered on the 20th day of July, 1841. First. Where do you reside ? Do you know any person of the name of McGregor, who is' now or was in October, November, or December last, a clerK for a gentleman in Chippewa, whose name is Macklem ? If so, give the christian name of the said McGregor and of the said Macklem, and how long the clerkship of the said McGregor has continued. Second. During the last fall, was any person whose last name is McGregor, other than the individual of that name mentioned by you in your answers to the foregoing interrogatory, a clerk for any person whose name is Macklem, residing in Chippewa. Third. What relation is this McGregor, named by you in your answer to the first foregoing interrogatory, to yourself. Fourth. Do you know Alexander McLeod, late dcputy-sherilF of Ni- agara district, in the late province of Upper Canada ? If so, l»ow long have you known him ? Fifth. Did you in January, 1838, or at any other time, in Chippewa or at any other place, have any conversation with said Alexander McLeod in regard to the destruction of the Caroline ? If so, what did he say he had done during the attack on that boat ? What, if any thing, did he say as to his being one of the company who destroyed the Caroline ? Sixth. How long before the burning of the Caroline had you known said McLeod ? Before that event, have you seen him in Chippewa in the month of December, 1837 ? If so, how often ? State particularly. Seventh. In December, 1837, in whose employ were you, and in what capacity ? Eighth. On the 29th day of December, 1837, did you know of the selection of a body of men to go on some secret expedition ? State par- ticularly what you know about it. Ninth. Did these men thus selected assemble in any one place in Chip- pewa ? If so, state what took place at that assembly as to some of the men refusing to go, and the grounds of their refusal ; and how long they were assembled together, and where you were at that time. Tenth. How were the vacancies in the body made by these refusals supplied ? Eleventh. Was Alexander McLeod at that assembly, or his name among those who had been selected to go on that expedition ? Twelfth. Did those men, who were to go on that expedition, assemble again either at the same place or on the beach ? • If so, where did they assemble ? Were you among them ? What opportunities had you of distinguishing the individuals who were at this last meeting ? Thirteenth. What can you say as to the presence or absence of the said Alexander McLeod on that occasion ? Fourteenth. What w*as the expedition on which those men who had been thus selected, went ? And where was the object of the expedition first communicated to them as a body ? Who commanded the expedition ? Answer particularly. Fifteenth. Did you accompany it ? Who commanded the boat in which you went ? Who commanded each of the other boats ? How many boata 15 f ■r<. •''ft^.^i- 114 OOUr.D S REPORTER. ':."■•!' , m: started, and how many reached the Caroline? VVus tlic said Alexander McLcnd in the boat in which yon went, or in any oilier of tlu;in ? Sixteenth. Were you on the Caroline tliut nifxlit ? U'yea, do you know where the said Alexander McLedd was then ? Can you name any place where he was not ? If ho, name it. Seventeenth. After your return, did you learn tlio names of all the per- sons who went to destroy the Caroline ? What can you say as to said JVIcLeod's name being among the number ? State the circumstances fully. Lastly. Do you know any other matters or things, or can you say any thing touching the matter in question in this cause that may tend to the benefit and advantage of the said Alexander JMe[jeod, besides what you have been interrogated unto ? Declare the same fully and at large, as if you had been particularly interrogated thereto. The foregoing interrogatories settled and allowed this 11th day of Sep- tember, 1841. ELIAS RANSOM, Jr. First Judge of Niagara County Court and Counsellor of the Supreme Court. Interrogatories to be ndminist'^red by way of cross-examination to Sir Allan McNab, Neil McCregor, Andrew Drew, Edward Zealand, Richard Arnold, Shepherd McCormick, John Elmsley, Christopher Bier, John Batter.sby, Thomas Hector, George Chalmers, and Russell Inglis, and such other witnesses as may be produced, sworn, and examined on the part and behalf of Alexander McLeod, in a suit now depending in the Supreme Court of judicature of the people of the state of New York, before the justices thereof, at the suit of the said people, for murder, before Seeker Brough, Esq., Adam Wilson, Esq., James E. Small, Esq., James Harvey Price, Esq., and Francis Hincks, Esq., or before any one or more of them, un- der and by virtue of a commission issuing out of the said Supreme Court of judicature, and under the seal thereof, pursuant to an order of the said court, entered on the twentieth day of July, in the year of our Lord one thonsand eight hundred and forty-one. First cross-interrogatory. Where do you reside, and how long have you resided there ? Are you a native of Canada ? If not, of what country are you a native, and how long have you resided in Canada ? What is your age and occupation ? Second. In what capacity or command were you at Chippewa, in De- cember, in the year of our Lord one thousand eight hundred and thirty- seven ? Were you in command of or attached to any vessel ? If so, state what vessel, her size, and character, and in what capacity you were attached ? If attached to the land forces, state in what capacity ? Third. Did you see Alexander McLeod the week preceding the burn- ing of the Caroline ? How often ? Once, twice, thrice, or more ? State particularly on what days and hours of the day. At what places ? Fourth. In any interview with McLeod, previous to the burning of the Caroline, did you converse with him, or hear J^im converse or speak on the subject of the Caroline 1 Fifth. Did he tell you at any time that he had been at Buffalo and seen the Caroline ? Did he tell you she was preparing to come to Navy Island ? Did he describe to you her size and equipments and character, or tell you any thing about her ? State fully what he told you, together with the time and place. Iiik;, ^ niglit- wlmt ' Scv ago. v\l •^ff^-iU ■■■:. ^fiA-' km MCLEOD'S TUIAL. 11") I Alexander n? you know ! uny |)lacf ull tlie per- r as to said tnnces fully, /ou sny any r tend to the cH what you largo, as it' day of Sep- ty Court and e Court. nation to Sir and, Richard • Bier, John tUs, and such 1 the part and uprcnic Court e the justices icker Brough, larvoy Price, of them, un- jpreme Court er of the said our Lord one ong have you what country a? Whatia )ewa, in De- and thirty. Issel ? If 80, ]ity you were fity? ig the burn- lore ? State laces ? jrning of the or speak on talc and seen ^avy Island ? |r, or tell you irith the time Sixth. Did you the night nr tnnrninjT hofore the htirnin^r of the Caro. liiK.', or nt any other time aiui wlicrc, ;mil al what hour in the day or night-time, go with McLfod in a small boat around Navy island ? If so, what was the object of this excursion ? Sivenlli. Did McLeod, ns you know, or as you have understood from him, f^o around Navy Island iho nij^ht (jr iiiiiriiini^', or at si>me other and 4 what other time before tlio Caroline w!>s destroyed .' And what was the 5 object of his doing so, as you know or have understood from him ? And who went with him ? And how did he 11 ^m 'tf n ■ ''..».. 118 GOULD S REPORTEU. I 'Mi Island or Schlosser, or near there, or for any other purpose 1 If yea at what time did ho ffo { How long did he remain in BufTalo I What did ho learn on the snbject 1 Forty-fifth — Did Alexander McLcod tell you or any person in your presence, the day or night before the Caroline was destroyed, or at any other time before, that she was coming down from Buffalo to Navy Island, or any other place in that vicinity! If yea at about what hour in the day or night time was it ? When was it 1 and who was present 1 and what did he say on that subject in substance! Forty-sixth — Did Alexander McLeod as you know or have heard him say remain at Chippewa the day before the Caroline was de- stroyed, and keep a look out to see when she came down to Navy Island or Schlosserl If yea how long did he keep a look out for her, and did he discover her at any time in the course of the day, and if so at about what hour 1 Where did he go and what did he do and say after he discovered her ! Forty-seventh — Did Alexander McLeod have any conversation, and if so what 1 Was it with you, or did you with him on the sub- ject of the Caroline the day before she was destroyed, or did you with any other person in his presence, or did he with any other per- sons in your presence 1 If yea how many 1 at abo"t what hour or hours in the day 1 Where was ii ( Who was present 1 and what was the substance of the conversation or conversations 1 State the whole fully and very particularly. Forty-eighth — Did you hear Alexander McLeod say before the Car- oline was destroyed that she ought, or could, or would, or might be cut out or destroyed, or any thing ^o that efTect or import 1 Forty-ninth — Did Alexander McLeod in any manner, either di- rectly or indirectly, advise that the Caroline should be cut out or destroyed, or attacked as you know or have understood from him 1 Fiftieth — Did you ever hear McLeod say he was at the burning of the Caroline or took any part in the expedition % Fifty-first — How many boats were at first engaged for the expedi- tion 1 Five or seven 1 How many started from Chippewa village 1 How many from near the mouth of the creek above Chippewa { How many got aground on Buckhorn Island 1 Fifty-second — Was any person employed to pilot the boats 1 How many 1 In which boats were they % [VVhat were their names 1] Do you know or have you heard of one or more man by the name of Weiskuhu (pronounced Wiscoon,) who resided at Chippewa in 1837 I Were they or either of them, or any man of that name in the expedition ? Fifty-third — If to the twelfth and thirteenth direct interrogatories you answer that the expedition was undertaken by command of Sir Allan N. McNab, state whether his order was public or private, in writing or verbal ! If verbal, what was its language or the sub- stance of it as near as you can recollect 1 Was it a permission or a command 1 To whom was it addressed 1 When and where was it given \ On what day and at what hour of the day 1 Ip. whose presence % Fifty-fourth — Was there any armed force stationed on land, at or near the wharf where the Caroline was lying \ Were you attacked allo\ MCLEOD 3 TRIAL. 119 osel If yea in Buffalo'. ly person in IS destroyed, from Buffalo yea at about it 1 and who jbstance 1 r have heard line was de- lown to Navy look out for e of the day, : what did he conversation, n on the sub- , or did you iny other per- what hour or and what was ;1 State the >efore the Car- I, or might be port 1 er, either di- be cut out or d from him 1 the burning of or the expedi- pewa village 1 re Chippewa'. boats 1 How names 1] Do f the name of pewa in 1837 1 he expedition 1 nterrogatories command of lie or private, re or the sub- ermission or a where was it y 1 Ip. whose on land, at or you attacked or fired upon from the shore, or the warehouse, or from any quarter 1 Was Lieutenant Elnisley or any other person sent on shore with sixteen, or any other number of men to protect the expedition while cutting loose the Caroline ! If Lieutenant Elmsley or any other person went on shore, did he meet any opposition, or discover any armed men ? Lastly — Do you know of any other matter or thing, or have yoii heard or can you say any thing touciiing the matters in question in this cause that may tend to the benefit and advantage of the said peo- ple, besides what you have been interrogated unto 1. Declare the same fully and at lai'ge as if you had been particularly interrogated thereto. The foregoing cross-interrogatories settled and allowed this elev- enth day of September, 1841, except the part of fifteenth surrounded with black lines, and in the words following, [" please name all whom you saw and recognized,"] and the words in the sixteenth surrounded as aforesaid as follows, ["name them and"] and the words in the thir- tieth surrounded as aforesaid as follows, [" and who were wounded,"] and the words in the fifty-second and surrounded as aforesaid as fol- lows, ["what were their names 1"] All those thus excepted are dis- allowed. ELL\S RANSOM, Jr. First Judge of the jYiagara County Courts and Counsellor of the Supreme Court. Additional Interrogatories, to be administered by %vay of cross-examina- tion, to Sir Allan J\\ McJVab. First cross-interrogatory : — If to the 8th direct interrogatory addressed to you, you reply, that you advised Captain Drew to destroy the Caroline, please state whether your order was written or verbal 1 whether at the time you knew the Caroline was lying within the territory of the United States 1 If the order was verbal, state the language of it 1 If j'^ou cannot recollect the words used, state the substance as near as you can recollect '! On what day and hour was it given 1 At what place was it given 1 Did it direct him to invade the territory of the tfnited States 1 Please state also, whether you had any order, instructions, or authority, to invade the territory of the United States % If so, were such instructions written or verbal 1 If verbal, state as near as you can recollect the language and purport thereof. State also from whom you received them, and where 1 Second — Did the steamboat Caroline come down to Navy Island or Schlosser, more than once 1 Did you receive information of her intended coming before she arrived 1 From w'hom 1 Did you receive any such information from Alexander McLeod, when and where 1 Did you receive any information of her state and condition after she arrived at Schlosser 1 From whom 1 Was any information received from any person on the boat, or who had been on, or near the boat, after her arrival at Schlosser 1 Third — If to the 16th direct interrogatory addressed to you, you answer, that you did furnish the Lieutenant Governor of Upper Canada with the names of the officers and men who were in the expedition to destroy the Caroline, state whether the names were r 120 GOULD'S HEPORTER. ■ contained in a written list, or accompanied with any written com- munication referring to such list, and explanatory thereof — if yea annex such [^fist and] accompanying communication to your answer. And state from whom you received the names — how many names there were in the list, and answer whether from your own personal knowledge that list contained the true names of all the persons who embarked in the expedition to destroy the Caroline 1 Did Captain Usher's name appear in that list 1 Fourth — How many boats did you see start on the expedition to destroy the Caroline 1 From what place or wharf did they start 1 And where did you stand at the time 1 Fifth — Did McLeod at any time inform you that the Caroline was reported to have left Buffalo on her way to Navy Island 1 And did he solicit permission to prepare an expedition to destroy her % Or did he suggest that such an expedition should be fitted out 1 Or did you say anything to him, or he to you, on the subject of such an expe- dition, the night before the Caroline came down, or at any other time 1 The foregoing additional interrogatories settled and allowed, except the part of the third surrounded with Mack lines and in the words [list and]. These words disallowed. September 11th, 1841. ELIAS RANSOM, Jr. First Judge of Miagara County Court, and Counsellor of the Supreme Court. Additional Interrogatories, to be administered by way of Cross-examino' tion to Niel McGregor. First cross-interrogatory. — If you answer the 17th direct inter- rogatory addressed to you, that you did learn the names of all the Kersons engaged in the expedition, and that that of Alexander IcLeod was not among the number, state how you learned the names. Was it by a list of their names in writing % If so, attach that written list which you saw to yotir answer, and state by whom that list was made. Do you know of your own knowledge that that list is a true and faithful list of all the persons who embarked or were engaged in the expedition against the Caroline 1 Second — If to the 9th direct interrogatory addressed to you, you answer that a certain number of men selected to go on the expedition to destroy the Caroline did meet together in Chippewa, state how these men were selected. What was their number, and occupation 1 At what house or place did they meet 1 At what hour of the day, and on what day ? Third — If to the 12th direct interrogatory addressed to you, you answer that the men you spoke of did assemble on the beach, state how many assembled there. And whether there were any others, and how many persons were there or near there 1 And at what hour they assembled there 1 And at what point or place on the beach they did assemble 1 And did they all embark together 1 How many boats did they occupy 1 And at what place did they embark 1 Fourth — Did McLeod ever express to you an unwillingness to be known to be in the expedition ^ Or that if it were known, it would be Mu mritten com- eof— if yea our answer, many names wn personal the persons >line 1 Did sxpedition to . they start 1 the Caroline iland 1 And iestroy her % out 1 Or did such an expe- jT other time 1 ind allowed, js and in the T nth, 1841. r. t, and erne Court. 'ross-examina- direct inter- ies of all the f Alexander learned the so, attach that lom that list is a true and igaged in the to you, you le expedition a, state how occupation 1 r of the day, to you, you beach, state any others, And at what jlace on the ether 1 How ley embark 1 ngness to be , it would be Mcleod's trial. 121 injurious to him 1 Or did you ever hear that the Sheriff threatened to remove him for being engaged in the destruction of the Caroline ? The foregoing additional interrogatories, settled and allowed this 11th day of September, 1841, except the word [names] surrounded by black lines ; this is disallowed. ELIAS RANSOM, Jr. First Judge of the Jfiagara County Court, and Counsellor of the Supreme Court. Deposition of Sir Allan N. McNab. Answers to interrogatories administered to Sir Allan N. McNab, a witness produced, sworn and examined before James E. Small, and James Harvey Price, Esquires, Commissioners on the part and behalf of Alexander McLeod, in a suit now depending in the Supreme Court of Judicature of the people of the State of New York, before the Justices thereof, at the suit of the said people for murder, under and by virtue of a Commission issuing out of the said Supreme Court and under the seal thereof pursuant to a rule of the said Court made on the twentieth day of July in the year of our Lord one thousand eight hundred and forty-one. Joseph Center, being present and approving for the People of the State of New York, and Hiram Gardner for said defendant, Alexander McLeod. To the 1st interrogatory. I am a Barrister. I reside at Dundurn in the Gore District, in the province of Canada, about 45 miles from the town of Niagara. To the 2d interrogatory. I know a body of militia was assembled at Chippewa in the month of December, 1837, and January, 1838, to the number of between two and three thousand to repel an expect- ed invasion from rebels and American brigands assembled on Navy Island and on the American shore near Schlosser. (They were or- dered out by the Lieutenant Governor of Upper Canada, Sir Francis Bond Head, for the purpose aforesaid. I was the officer in actual command of the force then and there assembled.) To the 3d interrogatory. Sir Francis Bond Head was at that time Lieutenant Governor of Upper Canada. To the 4th interrogatory. Sir Francis Bond Head was at Chip- pewa more than once during the months mentioned in t"he foregoing interrogatories. The force assembled there by his direction. I as- sumed the command of the forces there assembled by his order, di- rected to me as Colonel of the 3d Regiment of Gore Militia. To the 5th interrogatory. The Governor General of Her Britannic Majesty's Provinces of Upper and Lower Canada, was not at Chip- pewa at the time mentioned in the foregoing interrogatory. To the 6th interrogatory. I do remember the last time when the steamboat Caroline came down previous to her destruction. From the information I received, I had every reason to believe that she came down for the express purpose of assisting the rebels and brigands on Navy Island with arms, men, ammunition, provisions, stores, &c., to ascertain thi" fact I sent two officers with instructions to watch the movements of the boat, to note the same and report to me. These 16 • ■ r 'Ml/' fl i.' "i! tr "N ,.»t"iii" 122 GOULD S REPORTER. gentlemen reported they saw her land a cannon, (a six or nine pound- er) several men armed and equipped as soldiers, and that she had dropped her anchor under the east side of Navy Island — upon the in- formation I had previously received from highly respectable persons ill Buffalo, together with the report of those gentlemen, I determin- ed to destroy her that night. I entrusted the command of the ex- pedition for the purpose aforesaid to Captain A. Drew, Royal Navy. Seven boats were equipped and left the Canadian shore. I do not recollect the number of men in each boat. Captain Drew held the rank of Commander in her Majesty's Royal Navy. To the 7th interrogatory. I ordered the expedition and first com- municated it to Captain Andrew Drew on the beach where the men embarked, a short time previous to their embarkation. To the 8th interrogatory. Captain Drew was ordered to take and destroy the Caroline wherever he could find her. I gave the order as officer in command of the force assembled, for the purpose before stated. To the 9th interrogatory. They embarked at the mouth of- the Chippewa river. I was there when they embarked, and when^the boats shoved off'. I had been there about one quarter of an hour. I noticed most of the persons going into the boats. I stood within ten or twelve feet of most of the boats as the men went on board, and while they were preparing I was walking about among them, which afl!brded me the means of knowing who embarked. To the 10th interrogatory. I know Alexander McLeod, late Deputy Sheriff" of the Niagara District in the late province of Upper Canada. I have known him for about five or six years. My acquaintance with him was of a professional nature. I did not meet him frequently, the nature of my intercourse with him was professional. To the 1 1th interrogatory. I think I saw and spoke to Alexander McLeod, two or three times while I was in command of the forces at Chippewa. I do not recollect where it was I saw Alexander Mc- Leod,or the nature of his business. I think I saw Alexander Mc- Leod on the day previous to the destruction of the Caroline, and in what place and on what business I do not recollect. To the 12th interrogatory. I did not see Alexander McLeod when the boats shoved off" to destroy the Caroline, he was not in my presence that evening. To the 13th interrogatory. I think the boats returned about two hours after they left the Canada shore. I do not recollect the hour, the boats seemed to go in the direction of Navy Island when they left. To the 14th interrogatory. I was on the shore when the boats returned, and was near some of the boats when the men landed. I saw the faces of several of the men who landed, perhaps one half of the whole. I did not see Alexander McLeod, I do not know where he was, he was not in my presence. To the 15th interrogatory. I saw the Caroline on fire going down the river after the boats had left the Canada shore. I heard two or three shots in the direction of Schlosser. To the 16 th interrogatory. / think I made a return to the Lieu- nine pound- timt she had upon the in- able persons , I detevmin- d of the ex- Royal Navy, e. I do not ew held the tid first com- lere the men I to take and ve the order rpose before louth of- the id whenilthe ' an hour. I stood within nt on board, mong them, I. , late Deputy pper Canada, lintance with I frequently, o Alexander of the forces xander Mc- exander Mc- oline, and in er McLeod as not in my d about two ct the hour, when they n n the boats landed. I one half of enow where going down ;ard two or to the Lieu- MCLEOD S TRIAL. 1-23 tenant Governor of Upper Canada of the officers and men wlio des- troyed the Caroline. 1 am sure the name of Alexander McLcod was not among them, because he was not one of the party, llierefore )»is name could not have been in any return made by me. To the 17th interrogatory. I was not in command when the force took possession of Navy Island. Captain Drew is now at Woodstock, in the Brock District of this province. Lastly : I know of no other matter or thing, and can say nothing that can tend to the benefit or advantage of the said Alexander Mc- Leod besides what 1 have been interrogated upon. Signed, ALLAN N. MAC NAB. Taken and sworn before us this thirteenth day of September, in the year of our Lord one thousand eight hundred and forty-one, at the town of Kingston, in Canada. Jas. E. Small, J. H. Price, Commissioners. It being now 6 o'clock, the Court adjourned for one hour. The Court reassembled at 7 o'clock, and the answers of Col. Mc- Nab to the cross interrogatories were proceeded with. Answers to interrogatories administered by way of cross examina- tion to Sir Allan McNab, a witness produced, sworn and examined on the part and behalf of Alexander McLeod, in a suit now depending in the Supreme Court of Judicature of the people of the state of New York, before the Justices thereof at the suit of the said people for murder, before James E. Small and James Harvey Price, Esquires, of Toronto, in the Province of Canada, under and by virtue of a com- mission issuing out of the said Supreme Court under the seal thereof, pursuant to a rule of the said Court made on the twentieth day of July, in the year of our Lord one thousand eight hundred and forty- one. To the 1st cross interrogatory, he says : I reside at Dundurn, in the Gore District and Province of Canada. I have resided in that District for about sixteen years. I am a native of Canada, and have always resided there. I am forty-one years of age and am a Barris- ter at Law. To the 2d cross-interrogatory, he says : I was commanding offi- cer of the whole force at Chippewa, naval and military ; was not attached to any vessel. To the 3d cross-interrogatory, he says : I saw Alexander McLeod once during the week preceding the destruction of the Caroline. I do not recollect the particular day, the hour of the day, or the place at Chippewa, but I think it was the day before the destruction. To the 4th cross-interrogatory, he says : I have no recollection of conversing with Alexander McLeod, of hearing him converse, or of speaking to him on the destruction of the Caroline. To the 5th cross-interrogatory, he says : I do not recollect at any time McLeod informing me that he had been at Buffalo and seen the Caroline, that she was preparing to come to Navy Island, nor did he describe to me her size, her equipments or character, nor do I recol- mm <■■ m )!■ ik.. J1 Jil m Gould's reporter. lect his telling me any thing about her, but I do recollect that the information which induced me to order the destruction of the Caro- line was not received from Alexander McLeod. To the 6th cross-interrogatory, he says : I did not at any time be- fore or after the burning of the Caroline, during the day or night, go with McLeod in a large boat or a small boat round Navy Island. To the 7th cross-interrogatory, he says : I have no knowledge or recollection respecting any of the matters contained in the 7th cross- interrogatory. To the 8th cross-interrogatory, he says : I never did to my recol- lection. To the 9th cross-interrogatory, he says : After I heard that she was coming down to assist the rebels, and after the officers appoint- ed by me to watch her movements had reported to me, I made up my mind to have her destroyed ; this was on the day of her destruc- tion. I did not communicate my intention to Alexander McLeod, or in his presence, nor do I think that he could have known any thing about it. To the 10th cross-interrogatory, he says u I did not see the boat at Schlosser, it may have been reported to me that she had returned to the American shore, but I have no recollection of the circumstance, McLeod did not so inform me. I commenced preparing for the at- tack immediately after the report was made to me of her having landed the men and cannon at NaVy Island. This was on the day of her destruction. I was on the shore when the boats returned and went from thence to my own quarters. To the 1 1th cross-interrogatory, he says : I do not recollect being at Davis's tavern on the day after the burning of the Caroline, nor did I see or have any communication with Alexander McLeod on that day, or any other day after the burning of the Caroline, on the sub- ject of the destruction of that boat. To the 12th cross-interrogatory, he says : I was not present at the burning of the steamboat Caroline at Schlosser. I ordered the ex- pedition for that purpose. I was present at the embarkation of the expedition from Chippewa, and saw it embark ; there were on the shore at or near the place where the embarkation took place about from sixty to one hundred men. To the 13th cross-interrogatory, he says : I think there were about forty persons embarked in the expedition. I think I knew them'all. I was not one of them. I have before stated' that I order- ed her destruction. To the 14th cross-interrogatory, he says : The boats used are com- monly named ship's cutters as I understand. I think there were seven or eight men in each boat. The boats were nearly of the same size and description, they wer - seven in number, but as I had not the personal direction of the boats I cannot speak positively. To the 15th cross-interrogatory he says : I think I know all who embarked on the expedition. I saw the faces of most of them, and recognized those whom I saw. To the 16th cross-interrogatory he says : I was not in any boat, MCLEOD S TRIAL. 125 t that the the Caro- y time be- • night, go land. wledge or 7th cross- my recol- i that she rs appoint- I made up er destruc- r McLeod, n any thing •e the boat ad returned cumstance, for the at- her having on the day ^turned and oUect being iroline, nor eod on that Ion the sub- 'esent at the Ired the ex- ition of the ere on the Iplace about there were link I knew lat I order- led are com- there were [, they wer )f the boats )w all who them, and any boat, as I have before stated. Captain Andrew Drew commanded the ex- pedition, as I have before stated. To the 17th cross-interrotratory ho says : I was not in any boat. To the 18th cross-interrogatory he says : I know nothing of the matters inquired after by this cross-interrogatory except from infor- mation from other persons. To the 19th cross-interrogatory he says : I have no knowledge that there was any person of the name of McLeod in the expedition. If there had been a person of that name I think I should have known it. To the 20th cross-interrogatory he says : There was no wharf or pier where the expedition embarked at the mouth of the Chippewa River. To the 2l8t cross-interrogatory he says : The boats in which the expedition embarked all lay at the same landing place, near each other, and started about the same time. To the 22fl cross-interrogatory he says : The boats did not all re- turn at the same time. Five arrived at about the same time, two at a different time, but I do not recollect whether they were before or after the others. They disembarked nearly at the same place as from where they started. I cannot say that I saw and recognized all the persons that embarked. To the 23rd cross-interrogatory he says : I do not think that any of the persons composing the expedition belonged to the regular army. Some of them belonged to the Royal Navy. Others were militiamen. The force under my command volunteered their ser- vices on being called upon by the Lieut. Governor of the Province, from which force the expedition was composed of men selected by Captain Andrew Drew, under my orders. I think the men compos- ing the expedition marched to the boats in a body, except such as took the boats down the river to the place of embarkation. To the 24th cross-interrogatory he says : The force composing the expedition was under the immediate orders of Csiptain Drew who superintended the embarkation. I have already stated they came to that point in a body, and on their return they marched to their quarters in a body without any particular military display. To the 25th cross-interrogatory he says : The persons composing the expedition were dressed in their usual clothing. The militia were not at that time provided with uniform. I can give no more definite answer to this cross-interrogatory. To the 26th cross-interrogatory he says : The party were armed with pistols and cutlasses. The pistols belonged to some Provincial Dragoons then on service under my command. I think the cutlasses were procured from the Queen's stores. To the 27th cross-interrogatory he says : After the expedition re- turned, the men composing it continued on duty until the force un- der my command was disbanded about the end of January or begin- ning of February to the best of my recollection. To the 28th cross-interrogatory he says : It was about midnight when the force disembarked. It was not a moonlight night. I think it was cloudy. I do not recollect whether the moon was up or not. The force after their return went to their respective quarters. I do i , ■■■1 ' '^ em. '■{. i\ "w ti«K ',',1 I 128 GOULD S REPORTER. *i j ■{*• says : My order to The substance of To the 1st ndditionnl cross-interrogatory he Captain Drew was verbal as I have before stated, wbi«!h was to take and destroy the Caroline, as nearly as I can re- collect. The order was given on the evening of the day on which she was destroyed, on the beach near to the place where the boats put off. I had no orders to invade the territory of the United Statds. in my orders to Captain Drew nothing was said about invading the territory of the United States, but such was their nature that Cap- tain Drew might feel himself justified in destroying the boat where ever he might find her. To the 2d additional cross-interrogatory he says: I do not recol- lect her coming down more than once. I did receive information of her intended coming before she arrived. The peculiar circum- stances under which I received the information makes me feel that I cannot with any propriety disclose the names of those who commu- nicated it to me. — The information, however, was not received from Alexander McLeod. I received no information of the state or con- dition of the Caroline after she arrived at Schlosser. To the 3d additional cross-interrogatory he says : I am under tli«^ impression, although I will not be positive, that I did furnish the Lieutenant Governor of Upper Canada with the names of the officers and men who were in the expedition to destroy the Caroline. If I did so it must have been a written list. I do not recollect whether it was accompanied with a written communication or not. Captain Usher's name could not have been in the lisrt, as he was not one of the party. . To the 4th additional cross-interrogatory he says : ^ have already answered the matters inquired after in this addition):! cross-inter- rogatory. To the 5th additional cross-interrogatory he says : I do not recol- lect Alexander McLeod having informed me of the Caroline having left Buffalo on her way to Navy Island, nor did he solicit permission to prepare an expedition to destroy her, nor did he suggest that such an expedition should be fitted out, nor did I say any thing to him or he to me on the subject of such an expedition the night before the Caroline came down, or at any other time to the best of my recol- lection. Signed ALLAN N. MACNAB. Taken and sworn before us this 13th day of September, in the year of our Lord one thousand eight hundred and forty-one, at the town of Kingston, in Canada. Jas. E. Small, J. H. Price, Commissioners. John Harris of the town of London in the District of London in the Province of Canada, Esquire, aged sixty years, being produced sworn and examined in behalf of the defendant in the title of these depositions, doth depose as follows, viz : To the 1st interrogatory he says : I have no personal acquain- tance with Alexander McLeod, I am not certain that I ever spoke to MCLEOD S TRIAL. 121) ir order to balance of 1 I can rc- on which the boats ted Stat (J s. irading the that Cup- boat where not recol- nfornmtion iar circinn- J feel that I 'ho coinmu- ceived from tate or con- n under the furnish the ' the olficcrs roline. If I lect whether ot. Captain la not one of have already cross-inter- io not recol- |oline having t permission est that such ng to him or t before the if my recol- [ACNAB. iber, in the [forty- one, at liissioners. of London Ing produced litle of these il acquain- kver spoke to him in iny life, 1 knew him by sijjht not for u lonp J. W, I'nicE, J uniHsionurH. ■<„. . ^ti^- 4'. «* Answers to the intcrropntories by way of cross-examination. The said John Harris to the 1st cross-interr«)nfatory says: I reside in the town of London, in tiie District of London in the Province of Canada. I have resided there since the year IHHk I am not a na- tive of Cana(hi but am a native of England. I iiave resided in Cana- da since ISl'J. i am sixty years of ago, and am Treasurer of the London District. To the 'id cross-interrogatory he says : I was attached to the Na- val lirigade at Chippewa. 1 was acting as Aide-de-camp to Captain Drew. I was not in command of or attached to any vessel. To the 3d cross-interrogatory he says: It is probable 1 did see him daring the week previous to the burning of the Caroline, but when or where or how often, i cannot say. To the 4'th cross-interrogatory he says : I never spoke to him nor did 1 hear him converse on the subject of the Caroline. To the .oth cross-interrogatory he says : I never spoke to him in my life, nor did he to me on any subject. To the Gth cross-interrogatory he says : Alexander McLeod never was in a boat with me at any time whatever. To the 7th cross-interrogatory he says : I do not know nor have I understood from him that he ever went round Navy Island at any time. To the 8th cross-interrogatory he says : I have before stated hat I never had any conversation with Alexander McLeod whatever. To the 9th cross-interrogatory he says : The plan for destroying the Caroline first occurred to me on the afternoon of the 29th of De- cember, 1837, in consequence of having been directed either by Colonel MacNab or Captain Drew to observe her motions. I saw her go twice from Schlosser to Navy Island and land men at the lat- ter place. She then returned to Schlosser and let off her steam. I reported this circumstance either to Colonel MacNab or Captain Drew or both and suggested the expediency of cutting her out. I did not communicate my views on the subject to Alexander McLeod or any other person than those above named, nor could McLeod have known of it to the best of my knovUedge. To the 10th cross-interrogatory he says : I observed the Caroline during the afternoon of the 29th December, 1837, coming down the river to Schlosser. McLeod did not communicate anything respect- ing her to me. We commenced our preparations toward dusk after she had let her steam off. To the 11th cross-interrogatory he says : I have no recollection of being in Davis's or any other tavern at Chippewa the day after tiic 'X A. . ?LEOD s TniAr,. i;!i Cnptniii UilUS. •iiiImt, in I'oily-oiif ier«. [ion. ; 1 rcs'ulo 'roviiioo of I not n nil- 1(1 ill Ciiim- rer of the to the Nn- to Cnptaiii tlid see him I, but when to him nor e to him in :Leod never nor have 1 land at any stated hat intever. destroying i 29th of De- either by |)ns. I saw tn at the lat- Ir steam. I or Captain I her out. I lev McLeod IcLeod have Ihe Caroline [tr down the fing respect- dusk after ;ollection of ly after tiiC Imrninjjf of the ('arolinc, or nt nriy otluT time during my stay iif ("hippcwii, nor did I see IVIcLood rhcTc to llu" host ot'iny r«'i'oll c wlio emliarkcd in the enterprise, others 1 knew by si;.'lii, and some I did not Khow. 1 have before stated I was one nf tliem. Tliere were nitie in the boat I was in. I was on board the Caroline, and [ took a very active part in setting lire to her, and was the last that left her. To the lith cross-interrogatory ho says : They were live, six, and one from onr boats. I cannot say exactly how many were in each boat; there were nine in the boat in which I was. I believe they were boats belonging to steamboats, such as are generally known a^ cutters. There were seven started, and live reached the Caroline. To the fifteenth cross-interrogatory he says : I have already stated that many I knew well, some I knew by sight, and others I did not know. I saw the whole of them, but cannot suy that I saw all theii faces, or recognized the whole of them. To the 16th cross-interrogatory he says: I knew everyone that was in the same boat with me, particularly, I spoke to and recognized each one of them. Captain Andrew Drew commanded the expedition, and he also commande(J the boat I was in. To the 17th cross-interrogatory hf» says : I returned in the same boat as I embarked in, but all the nine persons did not return with me. To the 18th cross-interrogatory he says : All the boats that em- barked did not reach the Caroline. Five did, two failed. Captain Andrew Drew commanded one boat. Shepherd McCorniack, Lieuten- ant in the Royal Navy, commanded another boat, Christopher Rice commanded another boat, Mr. (jor'on commanded another, and the Honorable John Elmsley commanded the fifth. The two which did not reach the Caroline were commanded by Messrs. Hector and Battersby. The seven boats returned to Chippewa. There were nut many seconds between each of the live boats reaching the Caroline. The boat in which I was, was the first boat that arrived. To the 19th cross-interrogatory he says : There was no man of the name of McLeod in the expedition. To the 20th cross-interrogatory he says : From the bank at the mouth of the Chippewa, there was no wharf or pier. To the 21st cross-interrogatory he says : They did, and all started at the same time. To the 22nd cross-interrogatory he says : They did not all return at the same time, nor did they all disembark at the same time, five only returned shortly after each other. I was in the last of the five boats. ..V ^ A: -II k -!'■•*'. A i t I 132 nOULB S KEPORTER. '19 Tlic crews of the four other boats were on the beach when I landed, iiiid the wliolc were immediately mustered, and the names taken down. I did not see and recognize all the persons who embarked. I did not stop to sec the names taken down, but left a person in the act of doing it. To the '23rd cross-interrogatory he says : There were none of the regular army, several of the navy, the remainder were of the militia un- der Co!. McNab. They volunteered from the force under Col. IMcNab, upon being informed that their services were required forasecrot ex- pedition. They walked down together, but did not go in rank and (ile. To the 2 Uh cross-interrogatory he says : It was not, nor upon its ilisembarkation. To the 25lh cross-interrogatory he saj'^s : They were not dressed as soldiers or sailors, but in their ordinary clothing. Captain Drew, i think, was the only person in uniform. To the 26th cross-interrogatory he says : With sabres, pikes, cut- lasses, and some pistols, I cannot say where they were procured — their dresses were their own. The impression upon my mind is, that some of the arms were procured from the Provincial Dragoons. To the 27th cross-interrogatory he says : They went to their respective quarters. To the 28th cross-interrogatory he says : They disembarked about midnight. It was cloudy, but not a dark night. I cannot positively say whether the moon was up or had set. 1 have already stated that the force separated and went to their respective quarters. They were at Chippewa the next morning at sunrise, with the rest of the force, under Colonel McNab, but not embodied as a distinct corps. 1 have not since seen them together. I have not since seen them armed and equipped as they were that night. To the 29th cross-interrogatory he says : I cannot say positively, but it must have been after nine o'clock, as we were absent two hours and some minutes. I do not recollect that I consulted my watch on the occasion. To the 30th cross-interrogatory he says : I was not. Some of the party were. Mr. McCormack was severely wounded, and another slightly. I think that was ail. There were none killed. To the 31st cross-interrogatory he says: Yes. Resistance was made by the persons attached to the Caroline. Some of them had weapons. Whether they all had or not I cannot say. There were tire arms. I saw a pistol in the hands of one person, who snapped it at one of our men, but whether it went off or not I cannot say. Another had a gun or rifle and fired from the bow of the vessel at us. As we approached, the- ball passed between Captain Drew and myself. The person who fired called out, " turn up boys, the enemy are coming. What boats are there 1 give the countersign," and then lired. I think I saw other weapons in the hands of the people on board the Caroline, but I cannot describe them. To the 32nd cross-interrogatory he says : Besides what I have stated in the foregoing answer, fire-arms were discharged from the direction of a white house not far from the wharf, probably at the distance of sixty or seventy yards. I cannot say whether they used McLec MCLEOD S TRIAL. in:i I landed, les taken nbavked. on in the me of the nilitia un- 1. McNab, secrot cx- k and die. r upon its 3t dressed ain Drew, pikes, cut- irocurod — J mind is, Dragoons. It to their rked about t positively stated that ers. They rest of the .inct corps. I seen them lositively, jsent two suited my 5ome of the md another istance was them had There were snapped it cannot say. /essel at us. and myself, enemy are ," and then e people on ,vhat I have ed from the bably at the r they used any swords or pikes, or other military weapons. The steamboat luid no cannon mounted. I saw no caimon, fire-arms, or nuinitions oi' war or military stores on board of the Caroline, as I did not soarcii for any, further than those which I saw in the hands of the people, as above stated. To the 83d cross-interropatory he says : I am not awnro that any one was killed on board. There were one or two wounded. One of them had a sabre cut, who 1. believe, was put on the wharf, by some of our men. I did not kill or wound any one. I saw no one killed I saw no wound inliicted. I did not discharge a gun or pistol, hav- ing none with me. I struck no one with a sword or pike or other weapon. To the 34th cross-interrogatory he says : No one. They were all driven ashore before she was cast loose, as Captain Drew's orders were to drive them on shore and hurt as few as possible, and to cast her ofTfrom the vharf previous to setting (ire to her, so as to prevent the possibility of any injury to private property on shore.' To the 35th cross-interrogatory he says : I was not on shore, but I think Mr. Elmsley and some of the men were on the wharf. I di r ■ V'^W 134 gourd's reporter. To the 48th cross-interrogatory he says : I have before said I never heard McLeod speak to any person upon the subject of the Caroline. To the 49th cross-interrogatory he says : I do not know, nor have 1 understood from him that he, directly or indirectly, advised the destruction of the Caroline, nor do I believe he ever did. To the 50tii cross-interrogatory he says : I never did. To the 51st cross-interrogatory he says: Seven. And seven started from the mouth of the Chippewa creek. I am not aware that any of them got aground on Buckhorn island. To i.n 52d cross-interrogatory he says: There was no pilot em- ployed I know a family living near Chippewa of the name of Wiscoon. There were none of them employed as pilots. . There was no one of that name in the expedition. To the 53d cross-interrogatory he says : His order was given to Captain Drew. It was verbal and private ; it Avas not a permission, it was a command — it was given on the 29th December, 1837, at head quarters at Chippewa. The final command was given on the beach, just before starting, in my presence, but not in the hearing of any one else. To the 54th cross-interrogatory he says : I do not know that there was an armed force stationed on the land at or near the wharf at which the Caroline was lying. I have before stated, that shots were iired from the front of the white house near the wharf. — I have before stated, that I believe that Lieut. Elmsley was on the wharf, but with how many men, or whether he was ordered there, I cannot say, nor do I know whether he met with any opposition, or discovered any armed men. To the last cross-interrogatory he says : I do not. Signed. JOHN HARRIS. Taken and sworn before us, this 30th day of September, in the year of our Lord, one thousand eight hundred and forty-one, at the town of Kingston, in Canada. J ij p ' > Commissioners. Filed, September 18th, 1841. J^ote. — In the original, the signatures of the Commissioners appear at the foot of each page, but these are omitted in the copy. (A copy) H. Dana, Clerk. Edward Zealand, of the town of Hamilton, in the Gore District, and Province of Canada, mariner, aged forty-five years, being pro- duced, sworn and examined on behalf of the defendant, in the title of these depositions named, doth depose as follows : To the first interrogatory he says : I do know Alexander McLeod, and have known him since about January or Kebruary, 1838, I was not acquainted with him in December, 1837. I knew his person by sight in December, 1837, but did not know his name was McLeod until 18^8. I think him a native of Scotland and a British subject. To the f acond interrogatory, he says : I do recollect the destruc- -.-. »■•. re said I ct of the nor have ivised the nd seven not aware pilot cm- I name of rhere was s given to ermission, ■, 1837, at en on the hearing of that there le wharf at shots were lave before •f, but Avith Dt say, nor overed any lARRIS. ber, in the ty-one, at sioners. nets appear j Clerk. re District, )eing pro- in the title McLeod, ;38. I was person by s McLeod h subject. le destruc- MCLEOD S TRIAL. 135 lion of the Caroline. I was in Chippewa at that time, and had been there from about the twenty-fifth day of December, 1837. To the third interrogatory, he says : The expedition embarked from the Chippewa creek. I think those who embarked were en- gaged in preparation on the beach, for about an hour before starting. I was among the others assisting in the preparations during that time. I had no opportunity of noticing tliose who went, except the persons in the boat in which I went. To the fourth interrogatorjr, he says : I do not know where Alex- ander McLeod was at the time mentioned in this interrogatory. 1 know he was not in the boat in which I was. To the fifth interrogatory, he says : I do not know where the said Alexander McLeod was at the time mentioned in this interrogatory. I know he was not in my immediate neighborhood. To the sixth interrogatory, he says : I went on the expedition in a boat commanded by Captain Drew. To the seventh interrogatory, he says : I saw all the persons in the boat I went in from Canada to Schlosser. Alexander McLeod was not one of them, and I did not see him on my way from Canada to Schlosser. To the eighth interrogatory, he says : I did see the Caroline the night of her destruction. I was on board of her, aft, in the cabin, and on the larboard side of the deck. I got on board of the Caroline about the same time with the other assailants. I left her nearly the last. I did not see Alexander McLeod among the assailants, and I do not believe he was one of them. To the ninth interrogatory, he says : There was a dead man lying on the dock at Schlosser, but he was not conveyed there. The man referred to met his death during the attf k upon the Caroline, but I do not know whether he received the shot on the Caroline, or on the dock. I Uiink the shot which struck him proceeded from the direc- tion of the tavern on shore. He could not have been carried or conv yed to the dock without my knowledge. To the tenth interrogatory, he says : I did see the men who had been engaged in the destruction of the Caroline, when they landed on the Canada shore, upon their return from Schlosser. I did not see Alexander McLeod among them, and believe that he was not among them. I did not see hm. at any time after the boats left the Canada shore for the purpose of destroying the Caroline, and up to their return and landing on the Canada shore after her destruction. To the eleventh interrogatory, he says : Seven boats started, five reached the Caroline, and five returned almost in company. To the twelfth interrogatory, he says : I know Sir Allan N. Mc- Nab. I do not know where he was at the time the expedition start- ed. I do not know by whose command the expedition was under- taken. I did not hear Sir Allan N. McNab give any directions. I have no doubt the expedition was undertaken by comrr>and of Sir Al- lan N. McNab. Knowing Captain Drew to have been in the Royal Navy, I think he would not have entered on the expedition without being properly authorized to do so ; and on that account I joined the expedition, and served as in the regular service. .■ ' . I 1 ( 1 J' I ■ Iff ■ h: f fif IM J** %:5 136 GOULD'S UEPORTER. ■#!f>" - /■ ' To the thirteenth interrogatory, he says: Captain Drew was in command of the expedition, but 1 do not know by whose order. To the last interrogatory, he says : I know nothing further respect- ing the matters in question. EDWARD ZEALAND. Sworn, taken and subscribed, at the town of Hamilton, Canada, this eighteenth day of September, 1841, before me, SECKER BROUGH, Commissioner. Answers to the interrogatories by way of cross-examination propos- ed to Edward Zealand. To the first cross-interrogatory, he says: I reside at Hamilton, and have resided there about six years. I am a native of England, and have resided in Canada since the year eighteen hundred and thirteen. I am aged forty-five years, and am a mariner. To the second cross-interrogatory, he says : I was in charge of the boats and seamen on shore at Chippewa at the time mentioned in this interrogatory. I was not attached to any vessel. To the third cross-interrogatory, he says : I did only once. I saw him in a boat as one of a reconnoitering party. I think, but am not sure it was McLeod, as I did not know his name at the time. I think it was the person whom I afterwards understood to be McLeod. I think this was on the day before the day of the burning of the Caroline. To the fourth cross-interrogatory, he says : I neither conversed with McLeod, nor heard him converse, nor speak on the subject of the Caroline. To the fifth cross-interrogatory, he says : I never at any time heard McLeod speak on the subject of the Caroline. To the sixth cross-interrogatory, he says : I went in a boat with Captain Graham round Navy Island, for the purpose of reconnoiter- ing, on the daj"^, 1 think, before the day of the burning of the Caro- line, and a person was in the boat who, I think, was McLeod, but am not certain. To the seventh cross-interrogatory, he says : I only know of Mc- Leod's going round Navy Island according as I have stated in my answer to the last preceding interrogatory. I have never understood from him that he went round Navy Island at any time. On the oc- casion of going round Navy Island, as I have mentioned, I remember nothing particular occurring, but that the people on the Island fired constantly at us with grape, round shot, and musket shot. To the eighth cross-interrogatory, he says : Never. To the ninth cross-interrogatory, he says : It did not occur to me that an expedition was contemplated ; it was communicated to me about two hours before it started, but I was not aware that the de- struction of the Caroline was the object of the expedition, until the time of starting. I did not communicate the plun, nor any part of it to McLeod. He was not present, to my knowledge, when it was communicated to me. To the tenth cross-interrogatory, he says : I did not discover she was at Schlosser until we failed in finding her at Navy Island. Mc- Leod never informed me where she was. We commenced prepara- tions some time near eight o'clock in the evening of the 29th of De- />. MCLEOD S TRIAL, 137 w was in )rder. errespect- lLAND. 1, Canada, ssioner. ion propos- Hamilton, if England, indred and charge of lentioned in nee. I saw , but am not me. I think McLeod. I he Caroline, r conversed e subject of y time heard a boat with reconnoiter- of the Caro- eod, but am :now of Mc- Itated in my understood On the oc- I remember Island fired I occur to me Ijated to me I that the de- m, until the Iny part of it ifhen it was Idiscover she [sland. Mc- jed prepara- 2Dth of De- ,(*."■ '*fv After the expedition, wo went to our respective s's comber, 1837 quarters. To the eleventh cross-interronratorj', he says : I was at Davi tavern at the time mentioned in this interrogatory. I did not see McLeod at or near Davis's tavern, or converse with him at any time during my stay at Chippewa. To the twelfth cross-interrogatory, he says : I was at the burning of the Caroline. Was concerned in the expedition, and saw it em- bark in the Chippewa creok. I think there were within one hun- dred persons on the shore when the boats started, but I did not pay much attention to the numbers. To the thirteenth cross-interrogatory, he says : I think about fifty or sixty persons embarked. I did not know them all. I was one of them. Eight persons went in the boat I went in. I went on board the Caroline and assisted in the destruction. To the fourteenth cross-interrogatory, he says : The kind of boats used were such as arc c'>^iployed about steamers and schooners. The average number in each boat was about eight. The boats were of pretty much the same size and description, and were seven in number. To the fifteenth cross-interrogatory, he says : I did not know or recognize all who were in the expedition. To the sixteenth cross-interrogatory, he says : I was not previous- ly personally acquainted with all, nor do I remember to have spoken to each individual ; but I observed the face of each of them. Capt. Drew commanded the expedition, and the boat in which I was. To the seventeenth cross-interrogatory, he says: I returned in the same boat in which I went, and all the persons, except Captain Drew, who embarked in the same boat with me, returned with me. To the eighteenth cross-interrogatory, he says : Only five boats reached the Caroline — two of the seven failed. I do not know who commanded them. I believe they lost their way. The boats Avhich reached the Caroline arrived nearly at the same time. To the nineteenth cross-interrogatory, he says: I do not know whether any man of the name of McLeod was in the expedition. To the twentieth cross-interrogatory, he says : The expedition did not embark from any wharf or pier. To the twenty-first cross-interrogatory, he says : The boats all lay near each other along the beach, and started at the same time. To the twenty-second cross-interrogatory, he says : The five boats which reached the Caroline, returned at pretty nearly the same time, and same place. I did not recognize at the disembarkation all who embarked. To the twenty-fourth cross-interrogatory, he says : The force was not paraded or displayed in military order, either previous to its em- barkation, or on its disembarkation. To the twenty-fifth cross-interrogatory, he says : They were dress- ed in their usual and customary dress; not in clothes given out to them, but in their own clothes. Those who came from schooners, were dressed as sailors — civilians as civilians — there was no particu- lat uaiform. ■«»■■ )-■ t '""m :'■. Jt-; -J" I. ••,i ' /• Vdb GOULD S REPORTER. 15 , '^Z To the 26th ross-interrogatory he says: They were armed wiUi pistols, cutlasses and pikes. The arms were issued from the Ordi- nance Department. To the 27th cross-interrogatory he says : After the expedition re- turned, the crews did not continue together but went to their respec- tive quarters. To the 28th cross-interrogatory he says : I think the force disem- barked about two o'clock in the morning — it was not moonlight, or cloudy, but a little hazy, sufficiently light to distinguish each other as we sat in the boats. The forces on their return went to their re- spective quarters ; they were not together at sunrise that morning as a body on duty, though some of them might have happened of their own accord to be together. I have not since seen them to- gether as a body. I have since seen individuals of that force on duty in the different departments. To the 29th cross-interrogatory he says : At about ten o'clock. To the 30th cross-interrogatory he says : I was not wounded, Lieut. McCormiok and Richard Arnold of the assailing party were wounded, but I am not aware that any one was killed. To the 31st cross-interrogatory he says : I did not see any resist- ance made on board of the Caroline, with the exception of a shot which was fired from the after-part of the vessel at the time of board- ing. I think that shot struck and wounded Lieut. McCormick. I saw no weapons. To the 32d cross-interrogatory he says : One gun or pistol was discharged as stated in my answer to the last preceding interro- gatory. I did not see them use any swords or other weapons. The boat was not armed in the after-part where alone I was. I did not see any arms or munitions of war of any description on board of the Caroline. To the 33d cross-interrogatory he says : I did not see any one of the Caroline's crew killed, or receive a wound. I saw one man lying dead on the dock, who I suppose belonged to the Caroline but on what spot he received the shot I do not know — but I did not kill or wound any one. I did not discharge a gun or pistol, or strike any one with any weapon. To the 34th cross-interrogatory he says : Not one ! To the 35th cross interrogate 'y fie says: I went on shore at Schlosser for the purpose of cutting loose the stern-fast of the Caro- line, to prevent the flames from her communicating with the store- house on shore. I saw some two or three others of the assailing party on shore. I did not myself nor did I see any body else go into the warehouse. To the 36th cross-interrogatory he says : Mr. Harris of London, having fallen overboard, while getting from the Caroline to his boat, and having pulled him out of the water, I returned from my boat on board the Caroline for the purpose of getting something to cover Mr. Harris, as it was a cold night, and took a piece of old carpet for the purpose. I saw also a mattress taken from on board the Caroline, and saw it thrown or fall into the water, and carried off by the water. MCLEOD S TRIAL. 139 mcd wl»h the Ordi- idition re- eir respec- rce disem- anlight, or jach other 3 their re- it mornhig .ppened of I them to- rce on duty o'clock. t wounded, party were ! any resist- I of a shot ne of board- Dormick. I • pistol was ing interro- lapons. The I did not board of the else go into of London, to his boat, Imy boat on Ito cover Mr. Irpet for the lie Caroline, Ly the water. I believe a dog was also taken from the boat. I did not see nor am I aware that any other article was taken from the Carolhie. To the H7th cross-interrogatory he says: I never heard the Caro- line was coining from Buiralo, but on the day she was destroyed ; on the day before I heard she was plying between Navy Island and the American shore. I cannot remember wlio informed me, McLeod did not so inform me. To the 38th cross-interrogatory he says : I never knew and do not remember ever to have seen or heard of Sylvanus S. Kigby before this, the time of my examination. To the 39th cross-interrogatory he says: No ! To the 40th cross- interrogatory he says: No! To the 41st cross interrogatory he says : 1 neither know, nor have I heard from him that he was on board of the Caroline when she was attacked. To the 42d cross-interrogatory he says : No ; and I know not where he is. To the 43d cross-interrogatory he says : I know nothing about him. To the 44th cross-interrogatory he says: I neither know, nor have I understood from McLeod anything of the matters inquired after by this interrogatory. To the 45th cross-interrogatory he says : McLeod neither told me nor any person in my presence anything respecting the matters in- quired after by this interrogatory. To the 46th cross-interrogatory he says : I neither know, nor have heard McLeod say anything of the matters inquired after by this in- terrogatory. To the 47th cross-interrogatory he says : I neither had nor have had any conversation with McLeod, nor with any person in his pres- ence respecting any matters inquired after by this interrogatory. To the 48th cross-interrogatory he says : No. To the 49th cross-interrogatory he says : I neither knew nor have understood from McLeod, that he Avas in any manner advised, as mentioned in this interrogatory. To the 50th cross- interrogatory he says: Never! To the 51st cross-interrogatory he says : Seven boats were en- gaged in the expedition, and all started from inside the mouth of the Chippewa Creek, I do not know how many, or v/hether any grounded at Buckhorn Island. To the 52d cross-interrogatory he says : I am not aware that any person was engaged to pilot the boats. • I have an indistinct recollec- tion of the person of the name mentioned in this interrogatory, re- siding, I think some years since, at or about Chippewa, but not in 1837, I believe he was a pilot, but no person of that name was to my knowledge engaged in the expedition. To the 53d cross-interrogatory he says: I know nothing of the character of the ordef or command mentioned in this interro- gatory. I was placed by Sir Allan N. McNab under the command of Captain Drew, and to him alone I looked for orders. To the 54th cross-interrogatory he says : I did not see any armed force at, or upon the wharf, but several shots were fired towards us f.'fi W iv> uo GOULD S REPOttTER. iii Hi' i I f ?* I from the direction of the tavern, near the wharf. I do not know whctiier Lieutenant lilmsley, or any other person was sent or went on shore for the purpose mentioned in this interrogatory or any otiier such purpose. To tlie last cross-interrogatory he says: I know nothing further than what I have already stated in my answers to the foregoing in- terrogatories touching the matter in question. EDWARD ZEALAND. Sworn, taken and subscribed at Hamilton, Canada, this ISth day of Sep- tember, IStl, before mo, Skcker Brougii, Commissioner. DEPOSITION OF WILLTAJI S3MUT LIGHT. William Smart Liii;lif, of the township of North Oxford, in the Dis- trict of Brock and Province of Canada, Esquire, ngcd twenty-two years and upwards, being produced, sworn and examined in behalf of the defendant in the title of these depositions named, doth depose as follows, viz. To the 1st interrogatory, he says: I have no personal acquain- tance with Alexander McLeod, he was once pointed out to me in the streets of Chippewa, but whether before or after the 29thT)ccember, 1837, I cannot say. I believe him to be a British subject. To the 2d interrogatory, he says : I perfectly recollect the des- truction of the Caroline. I was at Chippewa at the time, and had been thei'c about four or five days previous. To the 3d interrogatory, he says: The persons who went to des- troy the Caroline, embarked at the mouth of the Chippewa Creek near some willow trees. I had been appointed to Mr. Elmsley's boat pre- vious to my setting out, and entered her as soon as I arrived, and re- mained on board the boat until the expedition started. I cannot speak positively as to the persons who went on that expedition ex- cept such as went in the same boat with myself. To the 4th interrogatory, he says : I do not know where the said Alexander McLeod was when the boats put off. I know he was not in my boat. To the 5th interrogatory, he says : I do not know where the said Alexander McLeod was, he was not in my presence. To the 6th interrogatory, he says: When the boats pushed off from the Canada shore on the expedition to destroy the Caroline, they pulled towards her. I was in one of the boats, which boat Mr. Elms- ley commanded. To the 7th interrogatory,* he says : I saw all the persons in the boat in which I was on my way to Schlosser. Alexander McLeod was not one of them, neither did I see him on my way from the Can- ada shore to Schlosser. To the 8th interrogatory, he says : I saw the Caroline on the night of her destruction. I boarded her on the §tarboard bow, and was the first on board from my boat. I left her immediately after the other assailants. The said Alexander McLeod was not among the assail- ants from the first attack upon her till her final destruction, to the best of my knowledge and belief. To the 9th interrogatory, he says : I saw no one killed on board I not know !nt or went ory or any linfr further »rejroininbark jil the same time, '['lie boat 1 was in disptnhaikfd at the place from wliointc we started. I (lid not soe and recognize all the persons 1 saw embark. I return- ed in another boat. To the 'I'.kd cross-interrorratory he says: The force employed consisted of vohintecrs. There wer(; some <;oiitlemen who had pre- viously been in the iloyid Navy and Army. The men volunteered. The force marched up in n body, but the men composing it entered such boats as they ch6se. To the 21tli cross-interrojratory he says: Many of the parties composing the force were mustered at the quarters of the Naval Hri^rade and furnished with a pistol, cutlass and two cartridges. The force was not displayed or paraded in military form on its disembar- kation. To the 25th cross-interroffatory he says: The persons composing the expedition were dressed in their ordinary clothing. Those who could procure it had a red badge round their arm. To the 2()th cross-interrogatory he says: The party were armed with pistols, cutlasses and sabres, which were obtained from the (juarters of the Naval Brigade and from the Provincial Cavalry. To the 27th cross-interrogatory he says: I believe the force dis- persed. To the 28th cross-interrogatory he says : I should think between one and two o'clock in the morning. The night was clear, but I cannot say whether there was any moon. The force, I think, dis- persed to their quarters. The whole party were not together that morning at sunrise. I have never seen that force together since. I have since seen some of the parties armed and equipped as they were that night on board of a gun boat, but who they were I cannot say. To the 29th cross-interrogatory he says: I cannot now recollect at what hour the expedition embarked. To the 30th cross-interrogatory he says : I was not wounded. Some of the assailing party were wounded in the attack upon the Cai-olinc. No one was killed. To the 31st cross-interrogatory he says: Resistance was made by the crew or by persons attached to the Caroline. They had weapons, pistols and swords. I saw also one gun fired by the sentry. The Caroline, I believe, was not armed. I cannot say that there were any military stores, simunition, provision or munitions of war of any kind or description found on board the Caroline. To the 32d cross-interrogatory he says : They discharged both guns and pistols, and they had swords on board. There were no cannon, fire-arms, military stores, amunition, provision or munition of war of any kind or description found on board the Caroline with the exception of such as appeared to have been used in the conflict and which lay scattered about the deck. To the 33d cross-interrogatory he says : I saw only one wounded as I have before stated. I saw no one killed. I wounded no one, r \m i \ S" I, ■ 1 ■ !i I -'I.; W ', (■ ■m f ,!; . \ "' « ■ C 141. GOWLU .S HKroilTER. r) i :,._:*:t nor (1!(1 I Kill any our. I (irod ii pistol. I ilid not strike with sword, pikf or Dtlicr wt'npoii. To l!n! Illtli i;ross-iiitt'rr(»(riUory lie says: I am pcrlVctly coniidciit thai no person was on board tlic Carolnic wIhmi she; was«'nt Nxtsi,' and sent over tlic I'alls, Cor wlicn 1 leli lu-r 1 had to run frtMn the alter ••ahin to the how wilh niy licad down to escape the smoke and llames wliieh were hursliiiif from helow. 'To tin! !{r)ih eross-intcrrcc^riitory he says: I went on shore at Scidosser. I did not ^it into the warelntnse near the wharf nor did I si!C! any of the party jjo into the warcdnnisc. To the ."Mth eross-interroifatory he says : I did take away a mat- trass for the aeeom.iiodation (»f -Mr. .MeCormick, who was severely woMinled, ami I also took away a sword which was lyinir on the deck. 1 know of no olln-r articles h«vinV4 f _i/- '' -ii 'i*l ,' ■ ■11 to m 146 GOULD'S KEPOUTER. 1: -If the commissiioneTs on the interrogatories previously framed by the counsel for the people and the prisoner. Judge Gridley said he saw no impropriety in the course taken. The commissioners were armed with full powers to take the examin- ations, and counsel had had the opportunity to frame the inter- rogations previously. Some explanations were made between the Attorney General and Mr. Spencer, and the reading was resumed. Previous to the reading of the following deposition of Mr. Armour, Mr. Hall objected to it — not desiring to set it aside altogether — that the name of this witness was not included in the list of witnesses to be examined by commission ; consequently the prosecution 'had no opportunity of framing cross interrogatories, such as might be pe- culiarly adapted to the knowledge, circumstances or character of the -..itness. Mr. Spencer explained — it was true this witness was not originally in the list mentioned ; but he had been substituted at great trouble for another in the list, who refused to be examined, and whose knowl- edge was supposed to be similar to that of Mr. Armour. Mr. Hall did not press any objection to the reading of the deposi- tion, but wished the jury to understand the particular circumstance that attended it. The deposition was then read. Deposition of Robert Armour. Robert Armour, of the town of Coburg, in the New Castle District, in the Province of Canada, Esquire, aged twenty-three years, maketh oath and, to the first interrogatory, he says : I have known Alexan- der McLeod from about the beginning of the month of December, 1837. I had seen Alexander McLeod once or twice before the 29th day of December, 1837. I only knew him by sight at that time. I had no acquaintance with him other than as I have just stated. I believe him to be a British Object. To the 2nd interrogatory, he says : I do remember the time of the destruction of the Caroline. I was in Chippewa about that time. I had been there for about twelve days before the destruction of the Caroline. To the 3d interrogatory, he says : All the boats were in Chippewa creek. Some of the party that were in the boats afterwards landed and tracked the boats along the shore a few hundred yards, until we came opposite to Schlosser. We may perhaps have stood upon the beach at the Chippewa creek about five minutes or so, before we em- barked. I went into one of the boats that were lying in the Chippe- wa creek. I landed to help to track the boat that I was attached to, along the shore, as I have before stated. And when the boat had been tracked a sufficient distance, I got into it again. I was with the party that went upon the expedition, and was one of them. To the 4th interrogatory, he says : I do not know where Alexan- der McLeod was, but I know he was not in the boat that I was in. To the 5th interrogatory, he says : I do noi know wheie Alexan- der McLeod was, and I do not think he was upon the beach at all ■e,- MCLEOD S TRIAL. W7 ed by the rse taken. le examin- the inter- eneral and r. Armour, ther — that itnesses to ion 'had no ight be pc- icter of the t originally :eat trouble lose knowl- the deposi- rcurastance 3tle District, jars, maketh )\vu Alexan- : December, ore the 29th hat time. I it stated. I 1 time of the at time. I ction of the In Chippewa tards landed l-ds, until we lod upon the Vore we em- the Chippe- [attached to, le boat had iras with the |m. Iiere Alexan- 1 1 was in. (eic Alcxun- Ibeach at all during the time of embarkation ; at any rate he did not come under my view. To the 6th interrogatory, he says : I went in Capt. Elmsley's boat, and he commanded it. To the 7th interrogatory, he says : I saw all the persons that were in the boat I was in. Alexander McLeod was not in the boat with me. I did not see Alexander McLeod at all that night. To the 8th interrogatory, he says : I saw the Caroline that night. I was on board of her, and over nearly all her deck. I boarded about the same time as the others. I was one of the last, or among the last that left her. I did not see Alexander McLeod at all that night, and do not think he was one of the assailants. To the 9th interrogatory, he says : 1 know nothing of the malter.s contained in this interrogatory. To the 10th interrogatory, he says : I saw the greater part of the men that had been engaged in the destruction of the Caroline after they landed. Alexander McLeod was not one, or among those that I saw, nor did I see him that night. To the 11th interrogatory, he says: Seven started, five crossed the river, two of which remained in the stream, and the other three attacked her. They came back, I believe, one after another. To the 12th interrogatory, he says : I do know Sir Allan N. McNab. I think he was on the bank opposite to Schlosser at the time the expedition started. I think the expedition was undertaken at the suggestion or command of Sir Allan N. McNab. I did not hear him give any directions. To the 13th interrogatory, he says: Captain Drew was in com- mand of the expedition. He commanded it, I believe, by the order or wish of Sir Allan N. McNab. To the last interrogatory, he says : I know of nothing further that can tend to the benefit of the said Alexander McLeod, than what I have before stated to the foregoing interrogatories. R. ARMOUR. Sworn, taken and subscribed at the city of Toronto, in the Home District, in Canada, this day of September, IS-il, before us, SeCKER BrOUGII, i ri • • A inT I Commissioners. Adam Wilson, J Answers to the interrogatories by way of cross-examination pro- posed to Robert Armour : To the 1st cross-interrogatory, he says : I reside in Cobourg. 1 have been there for about twelve months past. I am not a native of Canada. I am a native of Scotland. I have resided in Canada be- tween twenty-one and twenty-two years. I am twenty-three years of age past, and my profession is that of an attorney at law. To the 2nd cross-interrogatory, he says : I was a private. I was attached to a vessel during part of the time. I was in Chippewa. " The Queen" was the name of her. She was a large schooner, and was armed. I was attached to her as a private. I was also attached to the land force a part of the time. I was in Chippewa aforesaid, and served as a private. ^: if iiif '■wm 1. ''f . 'W-.'i ill} **\A Pj, ^ '-n .w.,f 148 gottld's reporter. ^111 m To the 3d cross-interrogatory, he says : I did not see Alexander McLeod the week preceding the burning of the Caroline, to my recollection. To the 4th cross-interrogatory, he says : I did not. To the 5th cross-interrogatory, he says : I did not. To the 6th cross-interrogatory, he says : 1 did not. To the 7th cross-interrogatory, he says : I know nothing of the matters contained in this interrogatory. To the 8th cross-interrogatory, he says : He did not. To the 9th cross-interrogatory, he says : I knew nothing of the in- tended destruction of the Caroline until it was communicated to me about two hours before we started for that purpose. I did not com- municate it to McLeod, and he was not present when it was commu- nicated to me, and I do not know whether McLeod knew of it or not. To the 10th cross-interrogatory, he says : I did see the Caroline plying between Schlosser and Navy Island, a day or two before she was burned. McLeod did not inform me of it. We commenced our preparations for an attack upon her about an hour before we started. After the return of the expedition, I returned to my quar- ters in Chippewa. To the 11th cross-interrogatory, he says: I do not remember whether I was in Davis's Inn at Chippewa on the day after the burning of the Caroline or not ; at any rate I did not see McLeod there, and consequently did not converse with him. Nor did I see McLeod on the Monday, or on any other day after the burning of the Caroline, at or near Davis's tavern. To the 12th cross-interrogatory, he says : I was present at the burning of the Caroline at the time mentioned in this interrogatory, and was concerned in it as one of the attacking party. There were then from one to two hundred persons standing on the shore when the boats started. To the 13th cross-interrogatory, he says : There were about sixty persons that embarked in the expedition — I knew about half the num- ber of these persons. I was one of the party. Nine altogether were in the boat that I was in. I was on the Caroline, and did all in my power to aid in her destruction. To the 14th cross-interrogatory, he says : Row boats, such as schooners use for jolly boats : there were nine persons in each boat. The boats were nearly all of the same size and description. There were seven boats. To the 15th cross-interrogatory, he says : I did not know all the persons that went on the expedition, though I did know about one- half of them. I did see most of the faces of those that were on the expedition, and I recognised a great part of them. To the 16th cross-interrogatory, he says : I knew all those that were in the same boat with me but two, and those two were entire strangers to me. I think I spoke to all those in the boat that I was acquainted with ; and I think I observed the faces of all that were in the boat with me. Capt. Drew commanded the expedition, and Capt. Elmsley commanded the boat I was in. ^14 «!l*ff> ^-' MCLEOD'S TRIAL. 149 Alexander ine, to my ing of the ig of the in- jated to me id not com- vas commu- lew of it or he Caroline > before she commenced r before we to my quar- t remember f the burning )d there, and s McLeod on J Caroline, at resent at the titerrogatory, There were shore when e about sixty half the num- altogether md did all in lats, such as in each boat, tion. There mow all the about one- lat were on 111 those that were entire |»at that I was 1 that were in Ion, and Capt. person To the 17th cross-interrogatory, he says : I did return in the same boat in which I embarked, and I think besides those that embarked with us, one other person returned with us from the expedition. To the 18th cross-interrogatory, he says: Only three of the boats that set out for the Caroline reached her. I do not know who com- manded the boats which did not reach her. Two of them lay out in the stream, and the other two lost theit course altogether. The boats that reached the Caroline arrived at nearly the same time. I do not know which arrived first. To the 19th cross-interrogatory, he says : There was no in the expedition of the name of McLeod, to my knowledge. To the 20th cross-interrogatory, he says : There was no wharf or pier where the boats were lying ; they embarked from the Chippewa beach. To the 21st cross-interrogatory, he says; The boats all lay at the same landing place. They started at nearly the same time. To the 22d cross-interrogatory, he says : The boats did not all re- turn at the same time, and the crews of the different boats disem- barked as they arrived, and I believe about the same place where they embarked from. I did not see all those return that went on the expedition, but I saw and recognized several of them. To the 23d cross-in. (.-i ^gatory, he says: The men that embarked on the expedition wer^ . ■ \ volunteers. Some of them had been in the Royal Navy, 'j' , -.lat went volunteered to go, and came down to the boats in a uouy. To the 24th cross-interrogatory, he says : It was not. To the 25th cross-interrogatory, he says : They were all dressed in their common every-day clothes. I cannot describe particularly the different articles of their dress. To the 26th cross-interrogatory, he says : The party was armed with sabres and boarding pikes, and some few had pistols. I cannot tell from whence the weapons were procured. They were served out to us in a house in Chippewa. To the 27th cross-interrogatory, he says : It dispersed. To the 28th cross-interrogatory, he says : The force disembarked about one of the clock in the morning. The night was dark and rather cloudy than otherwise. The force dispersed to their separate quarters after their return. They were not together at sunrise. I have not seen that force together as a body after that night, though I have seen several of the persons that composed it ; but I cannot say whether or not they were armed as they were that night. To the 29th cross-interrogatory, he says : I believe ten and eleven o'clock at night. To the 30th cross-interrogatory, he says : I was not wounded, but some of the party were. No one was killed. To the 31st cross-interrogatory, he says: There was some little resistance made by those attached to the Caroline, and I think they had pistols. To the 32d cross-interrogatory, he says : I think the sentinel on board the Caroline fired a musket or rifie, and some of them on board, I think, fired pistols. I cannot say whether they made use of '■*• ^'^' ^^K- 4.. II •;i ■«t ;.' ill : m *!-HK' -a " uk ii' liife |k m u** 150 Gould's reporter. any other weapons. I did not see, and do not know whether there were any canncn or munitions of war on board of the Caroline. To the 33d cross-interrogatory, he says: I think there were one killed and two or three wounded. I did not kill or wound any one, nor did I see any one of them killed or wounded. I did not discharge a gun or pistol, or strike or wound any one. To the 34'th cross-interrogatory, he says : I do not believe there was one. To the 35th cross-interrogatory, he says: I only know of one person that went on shore, and he went into the ware-house for the purpose of casting the cable off that fastened the Caroline. To the 36th cross-interrogatory, he says : I did not, nor did any of the attacking party, to my personal knowledge, take or carry away any of the articles found on board, or belonging to the Caro- line, though there were some mattrasses thrown into the boat in which I was, which I threw over board into the stream. To the 37th cross-interrogatory, he says : I do not know who first mentioned it, but McLeod certainly did not. To the 38th cross-interrogatory, he says : I do not know, and have never heard from him. To the 39th cross-interrogatory, he says : I did not. To the 4-Oth cross-interrogatory, he says : I did not. To the 41st cross-interrogatory, he says: He was not that I know of. To the 4<2d cross-interrogatory, he says : I know nothing of the matters contained in this interrogatory. To the 43d cross-interrogatory, he says : I never saw him, nor heard of him. To the 44th cross-interrogatory, he says : I know nothing whatever of the matters contained in this interrogatory. To the 45th cross-interrogatory, he says : He did not. To the 46th cross-interrogatory, he says : Alexander McLeod never so informed me ; nor did I ever hear him say so ; nor do I know anything of the matters contained in this interrogatory. To the 47th cross-interrogatory, he says : Alexander McLeod did not converse with me, nor did I with him, nor did he with any per- son in my presence, nor did I with any person in his presence, on the subject of the Caroline, at any time whatever. To the 48th cross-interrogatory, he says : 1 did not. To the 49th cross-interiogatory, he says : Not that I know of. To the 50th cross-interrogatory, he says : I did not. To the 51st cross-interrogatory, he says: Seven boats were first engaged in the expedition, and seven started from the mouth of the creek near to Chippewa village. I do not know whether any got aground on Buckhorn Island. To the 52d cross-interrogatory, he says : I do not know whether any person or persons were employed to pilot the boats. I know, and have heard of no such person or persons as are named in this interrogatory. To the 53d cross-interrogatory, he says : I do not know anything of the matteis contained in this interrogatory. m- jMcleod's trial. 151 ether there aroline. e were one ad any one, 3t discharge elieve there low of one ouse for the ne. nor did any £6 or carry to the Caro- the boat in low who first ow, and have t that I know jthinw of the lim, nor heard ing whatever der McLeod so ; nor do I ratory. McLeod did vith any per- sence, on the enow of. ,ts were first nouth of the ther any got now whether ats, I know, amed in this low anything To the 54th cross-interrogatory, he says : I do not think there was any armed force stationed on shore at or near where the Caroline was lying. I do not think we were attacked or fired upon from the shore or from the ware-house, and I was very busy during the whole time that I was engaged on board of the Caroline. I do not thin): Captain Elmsley went ashore at all, but one of our party went on shore to cast off the cable, but he met with no opposition, and dis- covered no armed men. To the last cross-interrogatory, he says : I do not know of any other matter or thing that could tend to the benefit or advantage of the people of the State of New York. R. ARMOUR. Sworn, taken and subscribed, at the city of Toronto, in the Home District of Canada, this twenty-fifth day of September, 1841, before us, Secker Bkough, ) n ^ • • Adam Wilson, \ Commissioners. deposition of JOHN GORDON. John Gordon, of the town of Hamilton, in the Gore District, and Province of Canada, Esq., aged twenty-eight ydlirs and upwards, being produced, sworn and examined, in the behalf of the defendant, in the title of these depositions named, doth depose as follows, viz : To the 1st interrogatory he says : I know Alexander McLeod, late Deputy Sheriff, of the District of Niagara, by sight, but have no personal acquaintance with him. I think the time that I saw him was, when he was a passenger on board of the steamboat I command. I cannot state positively that I saw him more than once. I believe him to be a subject of Great Britain, and a native of Scotland. To the 2d interrogatory he says : I perfectly recollect the time of the destruction of the Caroline. I was in Chippewa about the time of her destruction. I had been there a few days before that time. To the 3d interrogatory he says : The persons embarked near the mouth of the Chippewa river. I was there about half an hour before the embarkation. 1 do not know how long the others were there before I came. I remained on the beach during that time. I had no opportunity of knowing any of the persons, except those in the boat which I commanded. To the 4th interrogatory he says, I do not know where the said Alexander McLeod was. He was not in my boat. To the 5th interrogatory he says : I do not know where he was, he was not in my presence. To the 6th interrogatory he says : Schlosser, which boat I commanded. To the 7th interrogatory he says : I went in one of the boats to I saw all the persons in the boat 1 went in, from Canada to Schlosser. I am satisfied Alexander McLeod was not one of them. I did not see him on my way from Canada to Schlosser. To the 8th interrogatory he says : I saw the Caroline on the night of her destruction. I was on board of her. I was not below ; that is to say, not in the gentlemen's cabin, but with this exception, I think ■:^ mi w 152 GOULD'S BEPOBTBB. I was in every part of her. I went on board at the same time as the other assailants, and went on board at the aft part of her, after the whole of the assailants had left her. I returned for the purpose of securing her colours ; was on board for I should think nearly five minutes. I did not sec Alexander McLeod on board of the Caroline. To the best of my knowledge he was not there. To the 9th interrogatory he says : I did not see, nor do I know any thing of any person having been killed during the attack on the Caroline, or conveyed on the dock at Schlosser, and left remaining there. To the 10th interrogatory he says : 1 do not think I saw any of the men, with the exception of my own boat's cre^v, at the time men- tioned in this interrogatory. I did not see Alexander McLeod that night or since. To the 11th interrogatory he says: I cannot say how many boats started ; five reached the Caroline. I do no know how many returned in company. To the 12th interrogatory he says : I know Sir Allan McNab. He was on the beach when the boats started. It was by his command, to the best of my knowledge, that the expedition was undertaken. I did not hear him give any directions. To the 13th interrogatory he says : Captain Drew commanded the expedition. Does not know under whose orders Captain Drew acted. To the last interrogatory he says : I have stated all I know in my answers to the foregoing interrogatories. JOHN GORDON. Sworn, taken, and subscribed before me, this 16th day of Septem- i her, one thousand eight hundred and forty-one, at the town of ^ Hamilton, in Canada. Secker Bbough, Commissioner. Answers to the interrogatories by way of cross examination. The said John Gordon being duly sworn, to the 1st cross-interrogatory says : I command the steamboat " Britannia." I am twenty-nine years of age, and when on shore usually reside at Hamilton. I have Been seven years in Canada — am a native of Scotland. To the 2d cross interrogatory he says : I commanded the third division of the Naval Brigade at Chippewa, in the month of Decem- ber, 1837; that is to say, I did so after the destruction of the Caroline. I was not attached to any vessel. I commandt d a division of boats previous to the destruction of the Caroline. I was a captain in a regiment of " Gore Militia." To the 3d cross interrogatory he says : I did not to my knowledge see Alexander McLeod at the time mentioned in this cross interroga- tory. To the 4th cross-interrogatory he says : I never had any conver- sation or interview with Alexander McLeod respecting the Caroline, nor did I ever hear him converse on that subject. To the 5th cross-interrogatory he says : I have already answered 'i^'-^:r. * ..•■■■, w; '■r '• ■■*, boats nine. Mcleod's tbial. 153 nne as the after the iirpose of learly five Caroline. lo I know ick on the remaining law any of time men- ;Leod that lany hoats y returned :Nab. He command, 3 r taken. I nanded the itain Drew :now in my ORDON. of Septem- he town of lissioner. lation. [terrogatory wenty-nine n. 1 have \A the third of Decem- lion of the Id a division IS a captain J knowledge Is interroga- [ny conver- ge Caroline, ly answered that I never spoke to Alexander McLeod respecting the Caroline. I have not spoken to him since the year 1836. To the 6th cross-interrogatory he says : I did not at any time go with McLcod round Navy Island. To the 7th cross-interrogatory he says : I know nothing of the matters inquired after in this cross-interrogatory. To the 8th cross-interrogatory he says : He never did. To the 9th cross-interrogatory he says : The plan for the destruc- tion of the Caroline was communicated to me about two hours before the starting of the expedition. I did not communicate the plan, or any part of it, to Alexander McLeod, nor was he present when it was communicated to me. I am not aware that he knew of the same. To the 10th cross-interrogatory he says : I was not aware that the Caroline was at Schlosser. I was under the impression that she was at Navy Island, until after I had passed Navy Island on my way to destroy her with the other boats. Alexander McLeod did not inform me that she was at Schlosser. I made every preparation a short Ume before the expedition started. After the return of the expedi- tion, I went to Davis's tavern at Chippewa. To the 1 1th cross interrogatory he says : I do not recollect whe- ther I was or not at Davis's tavern. I did not see Alexander McLeod there. I did not on any day after the destruction of the Caroline see McLeod, or converse with him on any subject. To the 12th cross-interrogatory he says : I was present at the burning of the steamboat Caroline. I commanded one of the boats. I was ^t the embarkation of the expedition and saw it embark. I cannot say how many persons were present, at or near the place, when the boats started. I should think at least two hundred or three hundred. To the 13th cross-interrogatory he says : I should think between forty and fifty persons embarked on the expedition. I did not know them all. I was one of them. I think there were seven including myself in the boat I commanded. I was on board of the Caroline. I assisted in casting her off, and in towing her into the stream, as I think. To the 14th cross interrogatory he says: Cutters and Jolly boats ; I should think the number in each averaged from seven to nine. There were five boats at the destruction of the Caroline ; they were nearly of the same size. I cannot say how many boats started on the expedition. To the 15th cross interrogatory he says : I did not. To the 16th cross interrogatory he says: I did not know all who were in the same boat with me ; I did not recognize each one of them, nor did I speak to each individually ; Captain Drew com- manded the expedition ; I commanded the boat I was in. To the 17th cross interrogatory he says : I returned in the same boat in which I embarked, and believe that all those who went with me returned with me, but cannot say positively. To the 18th cross interrogatory he says : I believe not ; I have vy understood that two failed : I cannot say who commanded them, -:*^ 20 ^1' \i I J Ijf ■■(.',',' iii ■■^. '»?.■■ \ -■:<■•■ 'i^-r- 154. gould'b reporter. f i^: or what beeame of them. The boats arrived as nearly together as possible ; cannot say which arrived first. To the 19th cross interrogatory he says: lam not certain there was any man by the name of McLeod in the expedition. To the 20th cross interrogatory he says : The expedition embark- ed from no wharf or pier, but from the bank of the river. To the 21st cross interrogatory he says: All the boats were together on the bank of the river ; they started as nearly as possi- ble at the same time. To the 22nd cross interrogatory he says: I cannot say. To the 23rd cross interrogatory he says: The force em- ployed consisted entirely of volunteers ; there were some half-pay officers of the Navy amongst them ; the men came as volunteers, and entered the boats in the order in which they chose. The force was not drafted or levied; I am not aware that they marched up in a body ; I understood there was a party at the Naval Officers' quar- ters who acted in a body, but cannot say whether they marched up together or not. To the 24th cross interrogatory he says : I believe it was not before or after the embarking so displayed. To the 25th cross interrogatory he says : They were in their own ordinary dress ; they were not dressed in any uniform. To the 26th cross interrogatory he says : I cannot exactly say how the men were armed ; some probably had no arms, others had swords and pistols ; I believe the arms were principally procur- ed from the quarters of the Naval Officers. To the 27th cross interrogatory he says : To the best of my knowledge the force dispersed to their different quarters ; my party did so. To the 28th cross interrogatory he says: I think the force disembarked about one in the morning ; it was a star-light, not a moon-light night ; it was neither a very clear nor a very dark night. To the best of my knowledge the force dispersed to their quarters ; I am hot aware that they were together the next morning ; I have not seen them together since ; I have not seen that force or any part of it armed and equipped as it was that night. To the 29th cross interrogatory he says : The expedition em- barked I think between 10 and 1 1 o'clock. To the 30th cross interrogatory he says : I was not wounded ; I believe Mr. McCormick was wounded, and two others ; Richard Arnold and Major Warren were the two ; no one was killed. To the 31st interrogatory he says: We were fired upon before we boarded by the persons keeping sentry at the after gang- ways ; I cannot say of what description the weapons were ; I heard numerous shots fired, but cannot say whether on board the Caroline, or from the shore. To the 32nd cross interrogatory he says : I answered the first part of this interrogatory in my answer to the preceding interroga- tory. I am not aware whether they used any swords or pikes, or other military weapons, except as I have before stated. I dj not know whether the boat was armed, or any of the men on board her, ^:% MCLEOD S TRIAL. 155 ly together iertain there ion embark- boats were ly as possi- force em- me half-pay volunteers, The force arched up in fficers' quar- marched up e it was not were in their 'orm. mnot exactly arms, others ipally procur- ; best of my rs ; my party ik the force r-light, not a y dark night, leir quarters ; ning ; I have e or any part cpedition em- lot wounded ; jrs ; Richard iUed. upon before ang-ways ; I rd numerous line, or from tred the first ag interroga- or pikes, or Id. I dj not W board her, •>•'■ or whether there Avere any munitions of war on board, except us I have before stated. To the 33rd cross interrogatory he says : 1 am not aware whether any of the persons found on board the Caroline were killed or wounded ; I did not kill or wound any one. To the Slth cross interrogatory he says : No person was on board the Caroline that I am aware of when she was cut loose and sent over the Falls. To the 35th cvogs interrogatory he says: I did not go on shore j I cannot say whether any of the others did ; I believe some of the party did, but do not know that any of the party went into the store- house near the wharf. To the 36th cross interrogatory he says : I did not take any thing from on board the Caroline; I believe some lamps were taken from on board, and one mattrass on which Lieutenant McCormack was laid when wounded ; I believe also the boat's flag was taken from on board ; I do not know of any other property being taken ; I cannot state where the articles taken, if any were taken, were carried to. To the 37th cross interrogatory he says : I cann'ot at all remem- ber that I heard that the steam-boat was coming to Schlosser or Navy- Island, before I saw her in the neighborhood of Navy Island. To the 38th cross interrogatory he says : I am not aware of hav- ing seen or heard of the person enquired after by this cross inter- rogatory until this the time of my examination. To the 39th cross interrogatory he says : I have answered this cross interrogatory in my answer to the preceding one. To the 40th interrogatory he says : Never. To the 41st interrogatory he says: I have answered this in my answer to former cross interrogatories, from number 38 to the 42nd cross interrogatories he says, I know nothing of the matter enquired after by this cross interrogatory. To the 43d interrogatory he says : I have no other answer to give to this cross interrogatory than what I have answered to the enqui- ries respecting this individual. To the 44th cross interrogatory he says : T never heard nor do I know that Alexander JVJcLeod went to Buffalo for the purpose men- tioned in this cross interrogatory, or for any other purpose in De- cember one thousand eight hundred and thirty-seven, or at any oth- er time. To the 45th cross interrogatory he says : McLeod never spoke to me, or to any other person in my presence, on the subject. To the 46th cross interrogatory he says : 1 know nothing of the matters enquired after by this cross interrogatory. To the 47th cross interrogatory he says : McLeod never had any con- versation with me, or with any person in my presence, on the sub* ject of the Caroline, nor did I ever converse with any person in his presence on the subject of the Caroline. To the 48th cross interrogatory he says : Never. To the 49th cross interrogatory he says ; Never to my knowledge, nor have I ever understood so from him. To the 50th cross interrogatory he says : Never. |l;4vi'. 1 u 'ii ^\ 'lii l-f'i St!'1 156 oovld's reporter. i To the 5l8t cross interrogatory he says: To the best of my knovvlcMJge seven bouts were at first cnpajretl in the expedition, and ull started ii little above the mouth of Chippewa Creek ; I do not know how many, or whether any boat got aground at Buckhorn Island. To the 52nd cross interrogatory he says: I am not aware that any person was employed to pilot the boats ; I know a person of the name of Weishuhu who resided at Chippewa in December 1837 ; he has I believe two or three sons ; I believe none of them were enga- ged in the expedition against the Caroline ; 1 boarded at Weishuhu's house at the period in question ; I am not aware Ihat any person of the name mentioned in this interrogatory was engaged in the expe- dition. To the 53d cross interrogatory he says : I entered into the expe- dition at the personal request of Sir Allan McNab, and I have no further knowledge of any order or command, public or private, ver- bal or in writing, given by him. I cannot state whether Sir Allan McNab requested any other person to join the expedition ; Sir Allan McNab's request to me as above mentioned, was made about two hours before the expedition started. To the S-ith cross interrogatory he says : I am not aware that any armed force was stationed on the land at or near the wharf where the Caroline was lying. I do not know whether the shots came from the store-house ; I rather think ihey came from the neighbor- hood of a tavern, or from that direction ; I understood at the time, but do not know, there was a guard placed on the wharf to protect the expedition while cutting loose the Caroline. I do not know whether Lieutenant Elmsley was there or was sent there, or what number of men the guard consisted of, or whether the guard met with any opposition or discovered any armed men. To the last interrogatory he says : I do not know nor can I state any thing other than what I have stated, touching the matters enquir- ed of by this interrogatory. * JOHN GORDON. Sworn, taken and subscribed, at the town of Hamilton, Canada, this 16th day of September, 1841, before me, Secker Brough, Commissioner. DEPOSITION OF CHRISTOPHER BIER. Christopher Bier, of Chippewa, aged forty-nine, being produced, sworn and examined on behalf of the defendant in the title of these depositions named, doth depose as follows : To the 1st interrogatory, he says : I have seen McLeod but have had no acquaintance with him. I have known him by sight since about the beginning of January, 1838, but not before the destruction of the Caroline. To the 2d interrogatory, he says : I recollect the destruction of the Caroline, I was in Chippewa at that time. I had been in Chippe- wa since the 24ith December, 1837. To the 3d interrogatory, he says : They embarked from Chippewa Creek. I can only speak with certainty as to those who went in the boat with me, and they entered the boat immediately upon their coming a-!' Mcleod's trial. 157 t of my ion, and )t know Island, that any 1 of the 837 j he re enga- ishuhu's erson of he expe- the expe- have no /ate, vcr- Sir Allan Sir Allan ibout two 3 that any arf where ots came nelghbor- the time, ;o protect not know p, or what guard met can I state rs enquir- )0N. anada, this ssioner. produced, le of these but have sight since (estruction ruction of |in Chippe- Chippewa irent in the sir coming to the beach. I accompanied my crew. I had no opportunity of Hceing and noticing pcrNons who went on the expedition, excepting officers commanding boats, and my own boat's crow. To the 'I'th interrogatory, he says : I do not know where Alexander McLcod was. I know ho was not in the boat I commanded. To the 5th interrogatory, he says: I do not know whore Alexan- der McLood was at the time mentioned in this interrogatory. I do not recollect to have seen him at all during tliat evening. To tile 6th interrogatory, he says: I went in a boat on the expe- dition, and I was in command oi the boat in which I went. To the 7th interrogatory, he says: I saw all the persons who went with me in my boat from Canada to Schlosser. I knew them per- sonally. McLeod was not one of them. I did not see him at all that evening. To the 8th interrogatory, he says : I saw the Caroline on the night of her destruction. I was on board of her, and in every part of her. I went on board of her as nearly as possible at the same time with the other assailants. We all left her about the same time. I did not see McLcod among the assailants. To the 9th interrogatory, he says : I know nothing of the transac- tion enquired after by this interrogatory. To the 10th interrogatory, he says : I saw a number of the men, but not all of them who had been engaged in the destruction of the Caroline, when they landed on the Canada shore on our return. 1 did not see McLeod either before or after my return from the Caro- line that evening or night. To the 11th interrogatory, he says : Seven started, five reached her, •hey returned straggling, but within ten minutes one after the other. To the 12th interrogatory, he says : I know Sir Allan McNab. He was on the beach of Chippewa Creek when the expedition started. We received our orders from Captain Drew, who commanded the expedition. I cannot say by whose command the expedition was undertaken. Captain Drew's orders were, " the steamboat is our ob- ject, follow me." To the 13th interrogatory, he says : Captain Drew. I do not know by whose orders he assumed such command. To the last interrogatory, he says : I know nothing further than what I have already stated in my foregoing answers. CHRISTOPHER BIER. Sworn, taken and subscribed at the village of Chippewa, in the province of Canada, this twentieth day of September, in the year of our Lord one thousand eight hundred and forty-one, before us. o ti ' ? Commissioners. Secker Brough, / Answers to the interrogatories by way of cross-examination proposed to Christopher Bier. To the 1st cross-interrogatory, he says : I reside on board of Her Majesty's Steamer " Minos," on lake Erie, resided there for twelve months. I am a native of England, and have resided in Canada about nine years. I am forty-nine years of age, and am a naval officer. eA 1 \ I i ti I ' 158 (■OI/LD's REPOnXER. To the '2(1 crosH-iiitcrropntory, ho Hnys : I wnH commnndinpf ii rli- viHion of bouts in Dcccmbijr, 1837. I was not there in coinninnd a: nttnolicd to any vomscI. I was not attached to the Kind fore*', hut re- ceiveil pay iis a captain of militia. There was a force at that time ealled the Nuval IJriirach' to whicli I was attached. To the 'M crosH-iiiterrooutory, he says: I did sec McLeod some two or three days previous to the burning of the Caroline. I do not kn(»w how often or what purtiuular times. It was at Chippewa I Muw him. To the 4th croHs-intorrogatory, he says: I never heard him speak or converse on the subject of the Caroline. To the oth croHH-interrogatory, ho says: He never told me any thing about the Caroline. To the (ith croHH-interrogatory, ho soys : I did not at any time go in a boat with McLcod around Navy Island. To the 7th cross-interrogatory, ho says: I neither know nor have I ever understood any thing from McLeod respecting the matters en- quired after by this interrogatory. To the 8th cross-interrogatory, he says : He never did. To the 9th cross-interrogatory, he says : It did not occur to me. I was first nuxde aware that nn expedition was intended, about 6 o'- clock on the evening of the day on which the Caroline was destroy- ed, but did not know nor was informed the object of that expedition. About ten or eleven o'clock that evening 1 was informed that the steamboat was our object. I did not communicate the object or any part of it to McLeod. He was not present when it was communica- ted to me, nor do I know whether he was aware of it. To the 10th cross-interrogatory, he says : No person informed me that the Caroline was at Schlosser. McLeod tfid not inform me. We commenced preparations for the expedition about 8 o'clock in the evening. After the return of the expedition wc went to our quarters. To the 11th cross-interrogatory, he says: I was not at Davis's tav- ern on the day after the night of the burning of the Caroline. I did not see or converse with McLeod at or near Davis's tavern on the Monday or any day after the burning of the Caroline. To the 12th cross-interrogatory, he says : I was present at the burning of the Caroline. I was concerned in the expedition, and saw and was present at its embarkation. About some hundreds were present on the shore where the boats started from. To the 13th cross-interrogatory, he says : Sixty-three started up- on the expedition, there being seven boats and nine men in each boat. Five boats only reached the Caroline, containing forty-five men. The strict orders were, that each boat should contain only nine men, the officers in command included. I was one of the men en- gaged in the expedition, there was eight men in the boat with me. 1 was on board of the Caroline and assisted in every way in my pow- er to destroy her. To the 14th cross-interrogatory, he says : The kind of boats be- longing to merchant vessels, they were nearly of the same size and description. The rest of this interrogatory I have already answered. To the rccogni/c To the boat and Ciipfain L was in. To the boat I cm with me, ( also. To the Caroline, one, and I I do not k To the edge of til To the 'J pier. To the 2 together at To the 2 intervals, ai place when To the 2i from the m and navy, tl der the con peetive boai To the 2 To the 2 tiieir usual, To the 26 cutlasses an gade. To the 27 their respeci To the 28 about 1 or 2 it was cloud to its quarte them togeth( in their respi they were th To the 291 the morning To the 301 one was kilh To the 31 tance, they h ing and demi our the id saw were ed up- each ty-five only en en- L me. pow- its be- ZG and Mrt.EOD's TUIAr,. 1.^0 To the ir>th orosB-interrojTfitory, he nnyn: I did not know nil, or rccogni/c tlic face of ciicli who went on the rxpcdition. To the Kith crosH-intcrroiriUory, he says: I knew every one in the l)oat and spolic to and recof^nizcd each one in the boat 1 was in. Captain Drew cointnantk'd tho expedition. 1 coininanded the boat I was in. To the 17th cross-interropatory, he anys : I rotnrned in the same boat I embarked in, the same persons that wont with mo returned with me, eight otlicrsthat belonged to other b«)nts returned with me also. To the ISth cross-interrojrntory, he says: Five boats reached the Caroline, two failed, of which (-aptain .1. P. Uattersby commanded one, and I think .1. P. Currant was the senior olficer in the other, but I do not know from my own knowledge who commanded her. To the 19th cross interrogatory, he says : No person to my knowl- edge of tho name of McLeod was in tho expedition. To the *20th cross-interrogatory, he says : Not from any wharf or pier. To the 21st cross interrogatory, he snys : The boats all lay close together at the same landing place, and started at the same time. To the '2id cross-interrogatory, he says : The boats returned at intervals, and the crews disembarked as they arrived, and at the same place whence they started. I did not see them all disembark. To tho 23d cross-interrogatory, he says: They were volunteers from the militia, some of them had formerly belonged to the army and navy, they were not drafted or levied, they came up as crews un- der the command of their different officers and so entered their res- pective boats. To the 24'th cross-interrogatory, he says : No. To the 25th cross-interrogatory, he says : They were dressed in their usual, and in their own clothing and in no uniform. To the 26th cross-interrogatory, he says : They were armed with cutlasses and pistols, the arms were served out from the Naval Bri- gade. To the 27th cross-interrogatory, he says : The force dispersed to their respective quarters. To the 28th cross-interrogatory, he says : The force disembarked about 1 or 2 o'clock, A. M. The night was not moon-light. I think it was cloudy, but cannot remember exactly. The force dispersed to its quarters. It was not together at sun-rise. I have never seen them together as a force since. I have seen individuals of them serve in their respective corps, some of whom were armed and equipped as they were that night, such being their usual equipment. To the 29th cross-interrogatory, he says : About 1 or 2 o'clock in the morning we disembarked. To the 30th cross-interrogatory, he says : I was not wounded. No one was killed. Three were wounded. To the 31st cross-interrogatory, he says : Yes, there was resis- tance, they had a musket or rifle, for the sentry fired after challeng- ing and demanding the countersign.- I suppose they had other fire- '^ Ji^'H .i •^;i w^ 160 MCLEOD 8 TRIAL. arms from the circumstance of hearing pistols on board, and from the fact of some of our party being wounded. To the 32d cross-interrogatory, he says : A gun was fired, as 1 have stated in my snswer to the previous interrogatory. My im- pression is strong, that they were armed, because so few of our men were allowed to go forward. Captain Drew himself prevented them, and from the number of pistol shots fired there must have been more shots than those proceeding from our own party. Of the few who did advance towards the people on board three were wounded. I did not see any cannons or any munitions of war on board, no search was made for such. The boat was immediately cut loose, towed into the current, fired and set adrift. To the 33d cross-interrogatory, he says : I saw two wounded and none killed oa board of the Caroline, but saw one man lying dead on the dock. I did not to my knowledge kill or wound any one. I did not discharge a gun or pistol, nor did I strike any one with a sword or other weapon. To the 34'th cross-interrogatory, he says : None. To 35th cross-interrogatory, he says : I did not, but saw some of the attacking party on the shore, who went ashore to cast the vessel loose, none of them went into the ware-house. To the 36th cross-interrogatory, he says : I did not, nor was there any thing carried away in the boat I was in from on board the Caroline. To the 37th cross-interrogatory, he says : I never heard of the Car- oline coming down from Bufllalo. McLeod did not so inform me, but I saw her plying between Navy Island and Schlosser with a great many people on board. To the '■'8th cross-interrogatory, he says : I neither know nor have heard of, nor to my knowledge have ever seen Sylvanus Rigby. To the 39th cross-interrogatory, he says : I did not. To the 4iOth cross-interrogatory, he says : I did not. To the 41st cross-interrogatory, he says : No. To the 42d cross-interrogatory, he says : I know nothing, nor have I ever understood any thing from the said Rigby enquired of by this interrogatory. To the 43d cross-interrogatory, he says : I am ignorant of the sub ject of this interrogatory. To the 44th cross-interrogatory, he says : I know nothing of the matters inquired after in this interrogatory. To the 45th cross-interrogatory, he says : McLeod never made any communication to me respecting the Caroline. To the 46th cross-interrogatory, he says : No. To the 47th cross-interrogatory, he says : I had no conversation with McLeod nor had he with me on the subject of the Caroline, nor had I with any other person in his presence, nor had he with any person in my presence any conversation relating to the Caroline. To the 48th cross-interrogatory, he says : No. To the 49th cross-interrogatory, he says: Not to my knowledge. To the 50th cross-interrogatory, he says : No. To the 51st cross-interrogatory, he says : Seven were engaged and starte pewa I up th< when barkec know Toi pilot tl person To ansAver Tot force SI from th other m Toth of the n Sworn, 1 this t' thousi Mr. Si O'Reilly, Mr. ffi he shoult allowed t went exa Mr. Sp, can 1 Mr. Ha reading o be able tc that fact, Mr. Spe which was Hamilto District, ( examined named, de To the i about nine Deputy Sh met him w sizes, and ] subject. . To the 2 time. I r< MCLEOD S TRIAL. 161 and from red, as I My im- w of our prevented iiave been If the few wounded, no search se, towed lunded and ig dead on me. I did ;h a sword ,w some of [ the vessel r was there board the 1 of the Car- inform me, with a great know nor anus Rigby. ig, nor have d of by this of the sub ling of the ■never made lonversation Paroline, nor le with any Caroline. mowledge . Ingaged and started, and all from the same place, from or near the mouth of Chip- pewa creek, there we put part of our crew on shore to track the boats up the Niagara river about a mile opposite the foot of Navy Island, when those of the crew who had been tracking up the boats re-em- barked and thence we finally shoved ofT on the expedition. 1 do not know how many, or that any got aground on Buckhorn Island. To the 52d cross-interrogatory, he s:xys : No one was employed to pilot the boats. I know nothing of, nor have I ever heard of any person of the name mentioned in this interrogatory. To the 53d cross-interrogatory, he says : Before answered in my answers to the 12th and 13th interrogatory in chief. To the 54th cross-interrogatory, he says : I did not sec any armed force stationed on shore, but heard tlie report of three rifles fired from the direction of the tavern towards us. I kn-^w nothing of the other matters enquired after by this interrogatory. To the last cross-interrogatory, he says : I know nothing further of the matters in question. CHRISTOPHER BEER. Sworn, taken and subscribed at the village of Chippewa, in Canada, this twentieth day of September, in the year of our Lord one thousand eight hundred and forty-one, before us. Adam Wilson, Secker Brough, .J Commissioners. DEPOSITION OF HAMILTON ROBERT REILLY. Mr. Spencer then introduced the deposition of Hamilton Robert O'Reilly, and was proceeding to read, when Mr. Hall rose and said that he was informed, and believed that he should be able to prove at a proper time, that this deponent was allowed to read the depositions of other witnesses before he under- went examination himself. ?.Ir. Spencer — Do you intend to set it aside for that reason, if you can 1 Mr. Hall — No. I do not mention it with a view to prevent the reading of the deposition. The fact which 1 mention I believ e I shall be able to prove, and 1 state it no"', that the jury may judge from that fact, what degree of credibility the deponent is entitled to. Mr. Spencer then proceeded to read the deposition of O'Reilly, which was as follows : Hamilton Robert O'Reilly of the town of Hamilton, in the Gore District, Canada, Esquire, aged thirty, being produced, sworn and examined on behalf of the defendant in the title of these depositions named, deposeth as follows : To the first interrogatory deponent says : I have knowTi him for about nine years or upwards. I have met him in his character of Deputy Sheriff and transacted business with him, and have casually met him while traveling, at inns, and at several sittings of the As- sizes, and I have no doubt he is a native of Scotland and a British subject. To the 2d interrogatory he says : i do. I was at Chippewa at that time. I reached Chippewa on the twenty-sixth day of December, 21 'Mm, .■ im J' W'i 162 GOULD S KEPORTER. 1837, and continued there until some time after the destruction of the boat. To the 3d interrogatory he says : We embarked from near the mouth of the Chippewa creek. We were upon the beach about fif- teen minutes before our embarkation. During that time 1 was in the boat with the exception of a short period while in search of oars. I had not a good opportuuity of knowing all persons engaged in the expedition, but speak positively with regard to those persons in the boat with me, as it was my duty to determine the number by count- ing them. To the 4th interrogatory he says : I know not where Alexander McLeod was at the time of the expedition, but I know that he was not in the boat with me. To the 5th interrogatory he says : I do not know where he was at the time mentioned in this interrogatory. He was not within my observation, and I think I should have seen him had he been on the expedition. interrogatory he says: I went on the expedition in the command of Captain Beer — 1 think Christopher To the 6th a boat under Beer. To the 7th boat in which interrogatory he says : I saw all the persons in the 1 went. I can say positively that McLeod was not in the boat in which I went on its way to Schlosser. I did not see hini on my way from the Canada shore to Schlosser. To the 8th interrogatory he says : I did. I was on board. I be- lieve 1 was on every part of the deck^ — in the Captain's state room — and in the fire-house or room. I went on board at the same time with the other assailants. I first left the Caroline with the other assailants, afterwards returned on board with part of my own boat's crew to lift the Caroline's anchor. To the last part of this interrog- atory I can only say I did not see the said Alexander McLeod among the assailants at any time during the attack on the Caroline. To the 9th interrogatory he says : I have no personal knowledge of the circumstances attending the transaction inquired after by this interrogatory. To the 10th interrogatory he says : I saw a majority of the per- sons engaged in the destruction of the Caroline upon their landing upon the Canada shore, or immediately afterwards. 1 did not see Alexander McLeod among them. I did not see the said Alexan- der McLeod among them at any time that night, and I have no re- collection of seeing him any where that night. To the 11th interrogatory he says : I believe seven boats started — five reached her. I think the five boats returned about one and the same time. To the 12th interrogatory he says : I know Sir Allan N. McNab. I saw him standing on the shore of the Chippewa creek when the expedition started. I believe the expedition was undertaken by command of Sir Allan N. McNab who was in command of the Brit- ish forces upon the frontier at that time. I heard him give no di- rections, but saw him in conversation with Captain Drew immedi- reside ed thi To and Ja an inc attach( er unc Royal " Rose To ^¥cLeo Januar' line I ticular To lection ing of 1 Tot never t( he ever To tl with M( Toth toJd me that he before derived Island, pressed red on turned. Toth^ of my re "it^. t* % '^m I MCLEOD S TRIAL. 163 uction of near the about fif- vas in the f oars. I sd in the )ns in the by count- Alexander lat he wfis ; he was at within my een on the pedition in Christopher 3ons in the I was not in not see him loard. 1 be- itate room — e same time h the other y own boat's lis interrog- Leod among line. 1 knowledge after by this If of the per- their landing did not see said Alexan- have no re- )ats started — one and the In N. McNab. ek when the tidertaken by A of the Brit- Im give no di- Vew immedi- ately before the departure of the expedition. I recognized Sir Allan .\. McNab, then Colonel, as being in command. 'I'o the 13th interrogatory he says: Captain Drew was in com- mand of the expedition, and I am satisfied he assumed such command under the order of Sir Allan N. McNab. • To the last interrogatory he says : Nothing farther oco'irs to m^ touching the matters in question than what I have already stated i>. answer to other interrogatories. H. R. O'REILLY. Sworn, taken and subscribed this 17th .day of September, in the year of our Lord one thousand eight hundred and forty-one, at the town of Hamilton, Canada, before me, Secker Brougii, Commissioner. Answers to Interrogatories by way of Cross Examhiation. The said Hamilton Robert 0''Reilly in answer to the first cross-in- terrogatory says : I reside in the town of Hamilton, Canada. I have resided there since June, 1829. I am a native of Canada. 1 am pass- ed thirty years of age. I am a Barrister at Law. To the 2d cross-interrogatory he says : I held in December, 1S37, and January, 1838, the temporary rank of lieutenant at Chippewa in an independent volunteer company. I was for a few days at first, attached to the land forces and was afterwards removed to a schoon- er under the command of Lieutenant or Captain Graham of t!ie Royal Navy. The schooner referred to was at that time called the " Rose." I still held the temporary rank above referred to. To the third cross-interrogatory he says: I saw Alexander McLeod three or four times during the months of December and January. But whether before or after the destruction of the Caro- line I cannot state. Nor can I state with certainty the days or par- ticular places. To the 4th cross-interrogatory he says : To the best of my recol- lection I never conversed with McLeod on the subject of the burn- ing of the Caroline or heard him speak on the subject. To the 5th cross-interrogatory he says : To my recollection he never told me he had been at Buffalo and seen the Caroline, nor did he ever say anything to me about the Caroline. To the 6th cross-interrogatory he says : I never went in a boat with McLeod around Navy Island. To the 7th cross-interrogatory he says : McLeod, I think, never told me he went around Navy Island, but I am under the impression that he did go round or partly around. I cannot say whether it was before or after the destruction of the Caroline, nor can I say how I derived the impression. I believe the object was to reconnoitre the Island. I do not know who went with him. If he went, as I am im- pressed he went, he went in a small boat. I cannot say what occur- red on his passage, nor how long he was absent, nor when he re- turned. To the 8th cross-interrogatory he says : he never did to the best of my recollection. W'^A M I h *■;;. . ''^; iff.": ;.4iC,. , ; ■ ^ I ■-■;/•■ m GOULD 3 REPORTER. To the 9th cross interrogatory he says : I first knew that the de- struction of the Caroline was contemplated when we set olF from the shore, when Captain Drew stated in the boats that that was the ob- ject of tlie expedition ; it did not occur to me at all ; I never, that I can recollect, spoke to McLeud on the subject ; I believe he was not present when it was communicated to me j my conviction is that he was not present ; nor did McLeod know of it to my knowledge. I may be under a misapprehension as to Captain Drew stating tiie ob- ject of the expedition, it may have been Captain Beer ; I am inclined to think it was Captain Drew. To the 10th cross interrogatory he says : I first discovered she was at Schlosser when we reached within sight of her ; when receiv- ing our orders on our passage we were told by Captain Beer,' that ahe would probably be on her passage from Schlosser to Navy Island ; JMcLeod never so informed me. I commenced my preparations for the expedition about two hours before we embarked ; not knowing at the time the object of the expedition ; immediately after the return of the expedition I went to Davis's tavern, then to visit Lieutenant McCormick and then to my quarters. To the 11th cross interrogatory he says : I have no distinct recol- lection, but think it probable that I was at Davis's tavern the day af- ter the night of the burning of the Caroline ; I do not recollect to have seen McLeod there j on the 1st of January I was at Queenston ; I cannot recollect to have seen him at any particular day at Davis's tavern, nor at any time to have conversed with him about the burn- ing of the Caroline. To the 12th cross interrogatory he says : I was present at the burning of the Caroline at Schlosser at the time mentioned in this in- terrogatory. I was concerned in the expedition and embarked with it. A good many persons were present at the embarkation, but I cannot form any idea of the number. To the 13th cross interrogatory he says: to the best of my judg- ment, there were seven boats with eight in each boat ; I think I was personally acquainted with all or nearly all who went on the enter- prise ; I was one of them ; I think nine started with the boat in which I went — one of whom was disabled before we left the shore of the river and remained on shore. We started at the mouth of the Chip- pewa Creek and tracked up the river some distance. I was on the Caroline and assisted to light the fire in the fire-room. To the 14th cross interrogatory he says : I believe they were jolly boats or cutters and such as are usually attached to steamboats and schooners. I think they were nearly all of the same size and de- scription. I think some of them were pulled with six oars and some with four. I believe seven boats started and five reached the Caro- line. To the 15th cross interrogatory he says : I was personally ac- quainted with all or nearly all. I cannot swear that I recognized the face of each one who Avent in the expedition. To the 16th cross interrogatory he says : I knew all who were in the same boat with me ; I recognized every one of them; cannot swear that I spoke to all of them individually. Captain Drew com- 11'' i the (le- 'rom the 1 the ob- r, that I was not s that he ledge. 1 g the oh- \ incliaed ered she ;n receiv- eer,' that :y Island ; ations for knowing the return ^lieutenant inct recol- Lhe day af- jcoUect to ^ueenston ; at Davis's t the burn- sent at the I in this in- fcd with it. ut 1 cannot f my judg- think I was the enter- lat in which ,ore of the if the Chip- was on the were jolly iboats and |ze and de- Irs and some the Caro- Isonally ac- losnized the [ho were in \\-n ; cannot Drew com- MCLEOD S TRIAL. 165 manded the expedition and Captain or Lieutenant Beer commanded the boat in which I was. To the 17th cross interrogatory he says : I returned in the same boat in which I embarked, with the same persons and I am inclined to think another person named Richard Arnold. To the 18th cross interrogatory he says : Only five of the boats which started reached the Caroline, two failed, Lieutenant Battersby, commanded one of those which failed ; I don't know who command- ed the other ; they returned to the Canada shore ; 1 believe those which reached the Caroline arrived nearly at the same time — Captain Drew's boat reached first, a few moment's difference. To the 19th cross interrogatory he says : I do not know that there was any one of that name engaged in the expedition. To the 20th cross interrogatory he says : The expedition did not embark at any pier or wharf, but from the bank of the Chippewa Creek. To the 21st cross interrogatory he says : The boats were near each other when they started, and started as nearly at the same time as they could, to enable them to track up the Niagara river — the place where the boats were lying cannot properly be called a landing place, but they lay near each other. To the 22d cross interrogatory he says : I think the boats which reached thn C.iroline returned at the same time, nearly at the same time and place. I did not see or recognise all the persons disembark, whom I saw embark. To the 23d cross interrogatory he says : I believe none of the per- sons composing the expedition belonged to the regular army, then upon full pay, and but three or four naval officers who were on half- pay, otherwise they were militia volunteers. They were not drafted or levied by military orders ; they came as volunteers ; I think they were collected in parties, and so went into their respective boats. To the 24ith cross interrogatory he says : It was not displayed in any military order except as mentioned in my answer to the last pre- ceding interrogatory. I did not see it displayed or paraded in any military form after its disembarkation. To the 25th cross interrogatory he says : They were dressed in usual and customary clothing, and in their own clothing, and not in any military or naval uniform ; I am unable to give any particular description of their hats, caps, or coats. To the 26th cross interrogatory he says : The party was generally armed with swords, sabres, cutlasses and pistols. 1 cannot state where the arms were generally procured, I got mine at the quarters of the Naval Brigade. To the 27th cross interrogatory he says : After the expedition re- turned I think the force dispersed to their respective quarters. I did not see them assemble. To the 28th cross interrogatory he says: I think the force disem- barked between the hours of one and two o'clock in the morning. I think it wias not moonlight, the night was neither very dark nor light. 1 think the force after its return dispersed to quarters, in and about the village of Chippewa j I am not aware whether they were together at sunrise or not j I was asleep at that hour. I do not recollect to ^ ^&-' ■f'^' .%. n! 1' "lit!: ■t.^,5i!'? i,., tjl i.'W"' •: ill!.! ■si' ii'-i ',S ■■!># ' 1 1st I'' i ■M: il 166 GOULD S UEPORTEK. have seen them together since as a separate force, or any part of it. I think the arms were given up to the Naval Brigade. To the 29th cross interrogatory he says : I think at between ten and eleven o'clock. To the 30th cross interrogatory he says : I was not wounded nor was any one of the assailing party killed. But two of the assailing party to my knowledge were wounded, but have understood a third was wounded. ,♦>.--)'• To the 31st cross interrogatory he says: When approaching the boat Caroline I ^ .rd the sentry on board at the after-gangway chal- lenge twice or thrice and ask for the countersign. I heard him say give me the countersign or I will fire, and I think discharged a shot, I am not personally aware of any further resistance by persons belonging to the Caroline. I saw no weapons with any of the persons belonging to the Caroline except the sentry. 1 saw several persons leave the Caroline for the American shore, but \ could not see whether they were armed or not. To the 32d cross interrogatory he says : I cannot positively state that any more than one shot was fired from the boat Caroline, and cannot state positively whether that was a gun shot or a pistol. I saw no swords or pikes or other military weapons used by the per- sons belonging to the Caroline. I saw no arms of any kind except that had by the sentry, nor any military stores or munitions of war. To the 33d cross interrogatory he says : I saw none of the people belonging to the Caroline killed or wounded. I neither killed nor wounded any one. I did not discharge a gun or pistol, nor did I strike any one with a sword or pike or any other weapon. To the 34th cross interrogatory he says: I do not know, nor have I reason to believe that any body was on board of the Caroline when she was cut loose and sent over the Falls. To the 35th cross interrogatory he says : I did not go ashore or into the warehouse at Schlosser, nor do I know that any of the at- tacking party did. To the 36th cross interrogatory he says : I did not take or carry away any article whatever, as mentioned in this cross interro- gatory. I believe there were one or two mattresses taken from the Caroline to Chippewa, but I have no personal knowledge that such were talren, or any other article whatsoever. To the 37th cross interrogatory he says : I incline to think I first heard that the steamboat Caroline was coming down to, or had come down to Navy Island on the day she was destroyed. I have no dis- tinct recollection who informed me, but I think it was either Mr. Harris of London or Mr. Cleverley of the same place, but to my re- collection, Mr. McLeod did not so inform me. To the 38th cross interrogatory he says : I neither know nor am I aware of having seen a person of the name of Sylvanus S. Rigby, but I have heard that a person by the name of Rigby was taken prisoner on board of the Caroline and brought to Chippewa. I first heard of him either on the night of the destruction of the Caroline or the next day. I am not aware that he was engaged in any way in her Brit- tannic Majesty's service, either at the time mentioned in this interro- gatory or any other time. MCLEOD S TRIAL. 167 ween ten To the 39th cross Interrojrfitory he snys : I ncer knew, saw, or heard of him to my knowledge before the destruction of the Caro- line. To the 40th cross interrogatory he says : I never did. To the 41st cross interrogatory he says : I do not know, nor have I ever heard from him that he was on board of the Caroline. To the 42d cross interrogatory he says: I know nothing of the matters inquired after by this interrogatory. To the 43d cross interrogatory he says: I never saw him before the attack of the Caroline or ever. To the 44th cross interrogatory he says : I know nothing of the matters inquired after by this interrogatory, either from my own knowledge, or from any information derived from the said Alexander McLeod. To the 45th cross interrogatory he says : Alexander McLeod never told me nor any person in my presence at any time anything respecting the subject matter of this interrogatory. To the 46th interrogatory he says : I do not know that he remain- ed at Chippewa that day, nor have I heard him say he had done so, nor have I ever heard him say that he kept a look-out for the Caro- line when she came down to Navy Island or Schlosser, nor have I heard him say, nor do I know that he discovered her ; I do not know that he kept a look-out. To the 47th cross interrogatory he says: I have no recollection of any conversation had, of the nature inquired after by this interro- gatory. To the 48th cross interrogatory he says : No. To the 49th cross interrogatory he says : not to my knowledge, nor have I understood so from liim. To the 50th cross interrogatory he says : Never ! To the 51st cross interrogatory he says : I think seven boats were first engaged in the expedition. 1 think they all starced from Chip- pewa Creek below the village, cannot say how many grounded on Buckhorn Island. To the 52d cross interrogatory he says : There was no person to my knowledge engaged to pilot the boats. I am not aware that any person of the name mentioned in this cross interrogatory resided in Chippewa in 1837, nor am I aware that any one of that name was engaged in the expedition. To the 53d cross interrogatory he says : I am not aware whether the order given by Sir Allan N. MacNab was in writing or verbal, 1 have reason to believe it was private, inasmuch as the officers under whom I volunteered assured me that they were not themselves aware of the object of the expedition, until pushing off from the shore of the Niagara River, some distance, probably two hundred yards, above the Chippewa Creek; I neither saw nor heard the order given by Sir Allan N. MacNab. To the 54th cross interrogatory he says : There was one or more persons on shore near the wharf where the Caroline was lying. Several shots were fired from the shore upon us. Cannot state from what particular quarter the shots proceeded, but I think from the di- ■ r . ij it . * > 168 GOULD S REPORTER. 'iv rectlon of the tavern. I am not aware that Lieutenant Elmsley, or any other person was sent on shore to protect the expedition — nor ain 1 aware that he or any other person went on shore. T(i the last cross interrogatory he says : I do not know, nor can 1 say at this the time of my examination any thing further touching the )n;itters in question, than I have already answered in previous inter- rogatories. H. R. O'REILLY. Sworn at the town of Hamilton in Canada, this 17th day of Septem- ber, IS-ll, before me, Secker Brough, Commissioner. DEPOSITION OF SHEPHERD MCCORMICK. Shepherd J\IcCormick, of the township of London, in the District of ^London, in the Province of Canada, Esq., aged forty-nine years and upwards, being produced, sworn and examined, on behalf of the defenilant, in the title of these depositions named, doth depose as follows, viz : To the 1st interrogatory he says: The first time I ever saw Alexander McLeod, was on the night of the 28th of December, 1837, when ho was introduced to me by Captain Graham. I never saw him until the time I have before mentioned. To the 2d interrogatory he says : I perfectly recollect the time of the destruction of the Caroline. I was in Chippewa at the time, and for some days prior to it. To the 3d interrogatory he says : The persons who went to des- troy the Caroline, embarked at the mouth of the Chippewa river. I think they were standing there about half an hour before they em- barked. I was getting the boats ready. I took the list of the names and went round to get volunteers, by direction of Captain Drew, as I was second in command. To the 4th interrogatory he says : When the boats went to destroy the Caroline, I do not know where the said McLeod Avas. He was not in my boat. / did not take down his name, r.nd am positive he was not of the party. To the 5th interrogatory he says : I did not see the said Alexander McLeod during the time the p( rsons who went to destroy the Caro- line were standing on the beac.i. He was not with the party I com- manded. To the 6th interrogatory he say : When the boats pushed off from the Canada shore to destroy the Caroline, I went in one of them, which boat I commanded. To the 7th interrogatory he says : I did see all the persons in the boat I went in from the Canada shore to Schlosser. Alexander McLeod was not one of them. I did not see him at all that night. To the 8th interrogatory he says : I was the second man on board the Caroline on the night of her destruction. I was in different parts of her. I was put into one of the boats after I was wounded, before the other assailants left the Caroline. I did not see the said Alexander McLeod among the assailants. I am positive he was not one of them. MCLEOD'S TRIAL. 169 isley, or ion — nor nor canl jhing the lus inter- :iLLY. I Septem- ;sioner. e District ine years alf of the depose as ever saw iber, 1837, never saw ;he time of ; time, and ent to des- ^a river. I they em- the names Drew, as to destroy He was positive he Alexander the Caro- rty I corn- ed off from le of them, !ons in the Alexander that night. n on board lerent parts ^ed, before . Alexander Ine of them. I do know Sir Allan N. expedition started. The I did not hear him give To the 9th interrogatory he says : I know nothing of the matters inquired after in this interrogatory. To the 10th interrogatory he says : I was so weak from the wounds I had received, that 1 cannot recollect who I saw on my return. To the 11th interrogatory he says: Seven boats started in search of the Caroline — five reached her. I cannot say how many returned in company. To the 12th interrogatory he says : McNab. He was on the beach when the expedition was undertaken by his command. any directions with reference to it. To the 13th interrogatory he says : Captain Drew was in com- mand of the expedition. He received his orders from Sir Allan N. McNab. To the last interrogatory he says : Alexander McLeod called on me shortly after the destruction of the Caroline, and expressed his regret that he had not heard of the expedition, as he would have accompanied it. Further than this, I know of nothing more that may tend to the benefit and advantage of the said Alexander McLeod. SHEPHERD McCORMICK. Taken and sworn before me, this 20th day of September, in the year of our Lord, one thousand eight hundred and forty-one, at the town of London, in the District of London, and Province of Canada. J. H. Price, Commissioner. Answer to the interrogatories, by way of cross-examination. The said Shepherd McCormick to the first interrogatory says : I reside in the township of London, District of London, and province of Canada, and have resided there three years. I am a native of Ireland, of the age of forty-nine years, and am a Lieutenant in the Royal Navy. To the 2d cross-interrogatory he says: I was third in command of the Naval Brigade, at Chippewa, under Captain Drew, until Captain Graham left, when I was second in command. I neither commanded nor was attached to any vessel. To the 3d cross-interrogatory he says : Alexander McLeod was first introduced to me on the night of the 28th of December, 1837, on which night he accompanied me in a boat round Navy Island. I did not again see him until after the destruction of the Caroline. To the 4th cross-interrogatory he says : I never did converse with the said Alexander McLeod, nor did I ever hear him converse with any other person on the subject of the Caroline, previous to her destruction. To the 5th cross-interrogatory he says : The said Alexander McLeod never told me any thing about the Caroline, previous to her destruction. To the 6th cross-interrogatory he says : I did go round Navy 22 i mm mm ^:^. ill'' ■'*■■» I'l ,' . 1 I (. i i no GOULD S REPORTER. Isltind, very early in the morninj? of the 20th Daccmber, 1837, in coinpiiny with Alexander McLcod, to reconnoitre. To the 7th crosB-interrofratory he snys : Alexander McLeod did fro round Navy Island early in the mornincr of the '29th December, 1837. The object way to reconnoitre. He went in a boat. I accompanied him. Thirty-six cannon shot were fired at us from Navy Island. We were absent about four hours. To the 8th cross-interrogatory he says: Alexander McLeod never spoke to mo on the subject of cutting out the Caroline, in case she Hhould come down to Navy Island. To the 9th cross-interrogatory he says : The plan for the destruc- tion of the Caroline was i'lrnt communicated to me by Captain Drew, on the evening of the 29th December, 1837. I did not communicate it, or any part of it, to Alexander McLeod. He was not present when it was communicated to me, nor did he to my knowledge know of it. To the 10th cross-interrogatory he says: The first time I saw the Caroline was, during the day of the 29th of December, 1S37, on her passage from Schlosser to Navy Island. Alexander McLeod never spoke to me on the subject. We commenced our preparations to attack her about nine o'clock of the night of her destruction. On my return, I was carried to the house of Mr, Kirkpatrick at Chippewa. To the 11th cross-interrogatory he says : I was confined to my bed from the wounds I had received, and know nothing of the matter? inquired after in this cross interrogatory. To the 12th cross-interrogatory he says : I was present at the burning of the steamboat Caroline at Schlosser, on the night of the 29th December, 1837. I was present at the embarkation of the expe- dition at Chippewa, and saw it embark. I cannot possibly say how many persons were present on the shore, or near the place of em- barkation. To the 13th cross-interrogatory he says : About fifty persons embarked on the expedition. I was not personally acquainted with all the persons who entered the boats and went on the enterprize. 1 was one of them — there were eight in my boat including myself. I was on board of the Caroline. I was wounded immediately after getting on board, and consequently took no part in her destruction. To the 14th cross-interrogatory he says : The boats used were row-boats. They were all nearly of the same size and description. There were about eight persons in each boat — there were seven boats. To the fifteenth cross-interrogatory he says : I did not know all who embarked on the expedition, nor did I see and recognize the faces of each one. To the 16th cross-interrogatory he says : I knew all who were in the same boat with me. 1 spoke to and reeognized each one of them. Captain Drew commanded the expedition. I commanded the boat that I was in. To the 17th cross-interrogatory he says: From the weak state I was in, I do not recollect in what boat I returned. To the 18th cross-interrogatory he says : All the boats that em- barked in the expedition did not reach the Caroline — two failed. I !M !i' 1837, III Leod (lid )ecember, I boat. I t lis from leod never I case sho le destruc- tain Drew, mmunicatc ot present knowledge 3 I saw the 37, on her Lieod never iirations to ion. On my Jhippewa. d to my bed the matter? ssent at the night of the of the expe- bly say how jlace of em- ty persons minted with \terprize. 1 myself. 1 iiately after destruction, used were description. seven boats, not know all cognize the who were in each one of timanded the weak state 1 its that em- wo failed. 1 MCLEOO's TRIAL, 171 The boats that readied the C'aptain Drew's boat arrived ino do not know what became of thcin. Cnroline arrived about the same time. (irst. To the 1 nth cross-interrogatory he says : There was no man in the expedition of the name of JMcLeod, to my knowledge. To the '20th cross-interrogatory : The expedition embarked at the »uth of the Chippewa river. 'Ihere was no wharf or pier. To the2l8t cross-iiitcrrogatorv he says: The boats wore all lying on the beach together. They afl started at the Haiiio time. To the 22d cross-interrogatory he says: 1 know notiiing o( whnt took place at the disembarkation, nor did I recognize any one, owing to the exceeding weak state in which I was. To the 23d cross-interrogatory he says : The persons composing tlie expedition were civilians, with the exception of a few naval offi- cers. The men came as volunteers ; they marched up and entered the boats in a body. To the 2 1th cross-interrogatory he says : The force was not dis- played in any military form previous to its embarkation ; and as 1 have already stated, I cannot say what took place at its disembark- alifii. To the 23th cross-interrogatory he says : The men composing the expedition were dressed in their ordinary clothing — they had no particular uniform. To the 2Gth cross-interrogatory he says : The party were armed with swords and pistols, some of which belonged to the party them- selves ; the remainder were obtained from the Queen's stores. To the 27th cross-interrogatory he says: As I have already stated, I know nothing of what took place after the expedition returned. To the 28th cross-interrogatory he says: I don't recollect the hour at which the expedition disembarked. The night at the time we embarked was very dark. I was confined to my bed for three months, and therefore cannot say what became of the force after its disem- barkation. To the 29th cross-interrogatory he says : The expedition embarked about ten o'clock at night. To the .'JOth cross-interrogatory he says : I was desperately wounded in the attack on the Caroline. I believe that no one was killed. To the 31st cross-interrogatory he says: There was a strong re- sistance for a short period, made by the persons on board of the Caroline ; they were armed with pistols and swords. To the 32d cross-interrogatory he says : They did discharge guns and pistols and used swords, but not pikes. I am not aware that the boat was armed. I have no knowledq;e of any arms, military stores, or amunition, or provisions, or munitions of Avar of any kind or de- scription being found on board the Caroline. To the 33d cross-interrogatory he says : I believe one of the per- sons found on board the Caroline was killed. His death was caus- ed by a blow from me immediately after he had wounded me. I fired neither gun nor pistol. To the 34 of these depositions named, doth depose as follows : To the 1st jnterrogatory he says : I know Alexander McLeod, late Deputy Sheri'*' of file District of Niagara, and have known him since sometime n the y«ir 1836 down to the 29th day of December 1837. I have frequently seen him, but have had no personal inter- course with him. ' am not aware of what nation he is a citizen or 33 I :i i y-r I, i' ' ::S--. # 178 Gould's reporter. ilr subject, but believe him to he a British subject, and know tliat he was then a resident in the Niagara District in Canada. To the 2nd interrogatory he says: I recollect the time of the de- struction of the Caroline ; it was on or about the 29th day of Decem- ber, 1S37. I wan residing at Lundy's Lane and was in Chippewa daily for about a fortnight pr'^vious to the destruction of the Cars- line. To the 3d interrogatory he says: Those that went to destroy the Caroline embarked from the southern bank of the Chippewa Kiver, in the Niagara District. They left the beach in about half an hour after I arrived there, but I cannot say how long they had been there before my arrival, it was about 10 o'clock in the evening when I ar- rived. I was on the bank among those who were going on the ex- pedition, surrounded by a great concourse of people. 1 mixed with those going on the expedition, and recognized and spoke to several, but from the darkness did not recognize all ; the night was clear but we were shaded by some willow trees. I could see all those within two or three yards ; there was no moon. To the fourth interrogatory he says : I cannot say where Alexan der McLeod was. I did not see him that night. To the 5th interrogatory he says : I do not know where he was while those going on the expedition were standing on the banks and down to the time -when they embarked. I did not see him on the bank or in any boat. To the 6th interrogatory he says : I embarked on board one of the boatti and vowed to the mouth of the Chippewa River ; we there landed and towed the boats up the Niagara River to a point oppo- site Navy Island, where I again embarked in one of the boats enga- ged in the expedition, and a second time returned to change the rowers, owing to their inability to stem the current of the river. I then finally embarked to join the other boats in taking the Caroline. I went to a part of the river within about two hundred yards of Fort Schlosser, when the Caroline burst suddenly into a blaze. We did not land, but approached su*'^ I'ently near to see persons on th^ wharf, and then returned to the v^anada shore. I was in c mmand of tiie boat. To the 7th interrogatory he says : I did see all the persons in the boat I went in. Mr. McLeod was not in the boat ; I did not see him at all that night. To the 8th interrogatory he says : I saw the Caroline when on fire but did not go on board of her. I was not nearer to her than between one hundred and two hundred yards. I have before stated I did not see Alexander McLeod that night, and I have no knowledge of his being there. To the 9th interrogatory he says: I know nothing as to the mat- ters contained in this interrogatory. To the 10th interrogatory he says : I can state positively Alexan- der McLeod was not among those whom I saw, who consisted of the greater number of those engaged in the expedition assembled at the tavern, where we were stationed immediately after our return, where we supped together. We conversed for the greater part of the night re names < . \fcLeod listfi ?naa versatioi >cvcn o'( To th« ^'oven or not say 1 turned, i which 1 \ To the >IcNab, } started ; inan(!ed h N. McNa To the niand of i "V. McNal To the lating to t Answers The sai( saith : I ai the tenth ed in Can iind am a To the Captain El attached t( To the 'c during the To the hear him s To the 5 To the 6 To the matters coi To the 8 To the At 2 o'cloc ill readines for what the Carolir Alexander ted to me. To the 1( ( i Mcleod's trial. 179 V that he >f the dc- f Decem- Jhippewa he Car»- stroy the va Kiver, f an hour een there rhen I !iv- )n the ex- lixed with o several, ! clear but 3se within re Alexan re he was banks and im on the one of the we there )oint oppo- )oats enga- ;hange the e river, I Caroline. yards of aze. We ons on the c^ nimand sons in the lot see him le when on to her than ;fore stated knowledge to the mat- ely Alexan- isted of the bled at the turn, where )art of the night respecting the parties engaged in the expedition. I heard the names of all that had been so engaged, but the name of ^Ilexandcr .McLeod was not one of those mentioned^ nor was it entered in any of the h'st Commissioners. James E. Small, 3 Answers to the interrogations by way of cross examination. The said Thomas Hector, in answer to the 1st cross interrogatory saith : I am at present residing in Kingston, have been here since the tenth day of June last. I am a native of England, and have resid- ed in Canada since the year 18.33. I am thirty-three years of age, imd am a Clerk in the Surveyor General's Department. To the 2d cross-interrogatory he says I was a volunteer under Captain Elmsley, and held no particular rank. I was not at that time attached to any vessel. To the 3d cross interrogatory he says : I did not see him at all during the week preceding the burning of the Caroline. To the 4th cross interrogatory he says : I did not at any time hear him speak, or speak to him on the subject of the Caroline. To the 5th cross interrogatory he says : He did not. To the 6th cross interrogatory he says: I never wei>t with him. To the 7th cross interrogatory he says : I know nothing of the matters contained in this interrogatory. To the 8th cross-interrogatory, he says I did not. To the 9th cross-interrogatory, he says : It did not occur to me. At 2 o'clock in the day I was told by Captain Drew to hold myself in readiness at 10 o'clock that night, but he did not inform me for what purpose. It was not aware until I went in the boat that the Caroline was to be destroyed. I did not communicate it to Alexander McLeod. He was not present when it was communica- ted to me. I do not know whether he knew of it or not. To the 10th cross-interrogatory, he says : I think I saw her one or i :|' mn I ' 'C;; '■;■•*' l^i-! ISO GOULD S REPORTEB. ^ 1 t n,:' i:^' r^': two days before she was destroyed making' trips from Schlosser to Navy Island. Alexander McLeod never informed me of her beinof at Schlosser. The preparations were made on the day on which she was destroyed. I went to Kirkpatrick's tavern, as stated in my an- swer to the 10th interrogatory in chief. To the 11th cross-interrogatory, he says: I was not at Davis' tav- ern. I did not see McLeod at or near Davis' tavern at any time aftei' the destruction of the Caroline. To the 12th cross-interrogatory, he says: I cannot say how many persons were present when the expedition started oviing to the dark- ness of the nighty nor cf.n I form an opinion on the subject. There was a large assemblage of people. I can state no more in answer to the other parts of this cross-interrogatory thim I have before stated in my examination in chief. To the 13th cross-interrogatory, he says: I cannot state positively how many persons were embarked, but I think between forty and fifty. I did not know the whole of them. I knew the greater part of them by sight. I was one of them. There were only four. 1 \vas not on board of the Caroline. I took no other part except en- deavoring to reach her, but failed as I have before stated. To the 14th cross-interrogatory, he says : They were all rowboats. I cannot say how many men in each boat. Some of the boats were eight oar boats, and some of them four oar boats. There were seven boats. To the 15th cross-interrogatory, he says : I did not know all nor did I see the faces of all. To the 16th cross-interrogatory, he says : I did. I did speak td and recognize each one of them. I have before stated that Captaiii Drew commanded the expedition, and I commanded the boat I was in. To the 17th cross-interrogatory, he says : Yes. To the IBth cross-interrogatory, he ^-js: All did not reach the- Caroline. I cannot say how many failed or who commanded them except the one 1 was in. 1 do not know what became of all those that failed, but believe they regained the Canada shore. I cannoi say whether the boats that reached the Caroline arrived at the same time, or which arrived first. To the 19th cross-interrogatory, he pays: I cannot say whether there was a man in the expedition by the name of McLeod or not. To the 20th cross-interrogatory, he says : I have before stated when the expedition embarked. To the 21st cross-interrogatory, he says : The boats were all lyin Commissioners. Jas. E. Small, ) $ if. DEPOSITION OF NEIL MCtiUr.GOR. J\'eil McGregor, of Chippewa, nged twenty-four, hc'incr produced, sworn and examined on behalf of the defendant, in the title of these depositions named, doth depose as follows : To the 1st intcrrooatury, he says: I reside in Chippewa. I d(i know a person of the name of McGregor, who was a clerk to a Mr. Macklem, of Chippewa, at the period nieutioned in this interrogato- ry. I am the person I have just alluded to. Mr. Macklem's chris- tian name is Oliver T. 1 was clerk with him at that time, and have continued constantly in his employ for nearly the last two years. To the '2d interrogatory, he says : No other person of the name of McGregor than myself, was clerk for a Mr. Macklem residing iu Chippewa during the last fall. To the 3d interrogatory, he says • I am the person mentioned in iny answer to the first interrogatory. To the 4lh interrogatory, he says : I am not acquainted personally with McLeod, but have known him by sight for the last live or six years. To the 5th interrogatory, he says : 1 had no such conversation as is set forth, mentioned in the fifth interrogatory with McLeod. To the 6th interrogatory, he says : I did not know McLeod only as before stated, and had so known him for about two years before the destruction of the Caroline. I do remember of having seen McLeod in Chippewa during the xlisturbance, in the winter of 1837 and 1838. I do not remember the month. To the 7th interrogatory, he says • I was clerk to James Macklem. To the 8th inte*rogotary, he says: Yes. I was one of the expedi- tion. On the day in question I was one of a number of men assem- bled in a private house near the mouth of the Chippewa creek, for the purpose of some secret expedition. What the object of the ex- pedition was, I did not then know. There was an officer in the room with us. I was in the room about two hours, when Colonel McNab came in with some others. I do not remember all he stated, but I do recollect his saying if you miss your aim, the Falls would make a very fine winding-sheet. Arms were then given to us, consisting of cutlasses, pistols, boarding pikes. We then proceeded over Chip- pewa bridge towards the Chippewa creek. I do not remenrber wheth- er Colonel McNab .accompanied us. We there found boats in readiness for us, and after remaining a short time, embarked and proceeded up the Niagara river about three quarters of a mile, quite close to the shore, to a point nearly opposite the foot of Navy Island. Some of the boats were tracked up the river. The boat I was in was not, it was rowed. We then drew up for a few minutes. The men of the crews who tracked up the boats then embarked, and we finally pushed ofi'upon the expedition. The expedition was propos- ed to me privately. I do not know by whom. i ., ..Wji . ffi- f H'k ' w 184 uOULD S REPORTER. m pi. ii ' To the 9th interrogatory, he says : So of the men in the room refuaed to go. They declined because they were not intbrnu'd where they were to go, and for wliat purpose. I have answered an to the other matters inquired after by this interrogatory, in my an- swer to the last preceding interrogatory. To :hj 10th interrogatory, he says: By otiiers, volunteers. To the 1 1th interrogatory, he says: Not that i know of. To the 12th interrogatory, he says : They assembled again on the beach as before stated. I was among them. 1 had no opportunity of distinguishing the individuals at the meeting on the beach, as the night was dark. To the 13th interrogatory, he says: I cannot say whether he was there or not. To the l-Ath interrogatory, he says : The cutting out of the Caro- line. The object of the expedition was first communicated to us as a body opposite Navy Island. Captain Drew commanded the ex- pedition. To the 15th interrogatory, he says : I accompanied the expedition, J. P. Battersby commanded the boat I went in. I forget who com- manded the other boats. I believe seven started and five reached the Caroline. I believe he was not in the boat I was in, or in any other. I did not see him. To the 16th interrogatory, he says : I was not on the Caroline that night. To the 17th interrogatory, he says : I did not learn their names at that time. To the last interrogatory, he says : No. NiEL McGregor. By consent of the counsel for the ;*espective parties to this case, the examination of the witness, Niel McGregor, on the cross interro- gation, was waived. Sworn, taken and subscribed, at the village of Chippewa, in Cana- da, this twentieth day of September, in the year of our Lord IS^l, before us, Seoker Brough, ) ^ A iir } Commissioners. Adam Wilson, ) I u deposition of JOHN PALMER BATTERSBY. John Palmer Battersly, of the village of Ancaster, in the Gore Dis- trict Canada, Esquire, aged forty-four years, being produced, sworn, and examined on the behalf of the defendant in the title of these de- positions named, doth depose as follows : To the 1st interrogatory he says : I do not J^now him, and never met him to my knowledge. To the 2d interrogatory he says : I do recollect the destruction of the Caroline. I was at Chippewa at that time. I think I was there four or five days before the destruction of the Caroline. To the 3d interrogatory he says : From the bank of the Chippe- wa River, a little inside of the mouth. Some perhaps were on the beach about twenty minutes before they embarked, others immedi- ately embarked upon their coming there. I was there twenty min- 4 MCLEOD'S TRIAL. the room int'ornicd Hwcrod ftK in my an- ixa. ain on the pportunity ach, as the ler he was the Caro- ;d to us as ;d the ex- expedition. who com- ve reached , or in any le Caroline ir names at GOR. this case, OSS interro- ra, in Cana- our Lord jners. Gore Dis- ed, sworn, )f these de- and never struction of was there the Chippe- rere on the ;rs immedi- wenty min- 185 utes or half an hoiii, and was employed in petting my hoat ready. I had no opportunity of secinjr or noticiiijr thoso who went on the expedition except those who went in the boat with me. To the ^th interrogatory he say« : I do not know where Alexander AIcLeod was, but he was not in the bt)at with me. To the .'ith interrogatory he says: I do not know where he was at the period mentioned in this interrogatory, and cannot say where he was not. To the Hth interrogatory he says : I went with the expedition in a boat. I commanded the boat in which I was. To the 7th interrogatory he says ; f did nut go toSchiosser, but I saw all the persons in the boat I went in. Alexander AIcLeod was not on board of the boat with me. I did not see him at all. The boat I was in did not reach the Caroline, or go to Schlosser. To the Sth interrogatory he says : 1 did not see the Caroline on the night of her destruction ; 1 was not on board of her. The boat in which I was, did not reach the Caroline in conse(|uence of my men being bad rowers, we lost sight of the other boats, and were then ignorant of the point of attack. I can say nothing as to the rest of the matters inquired after by this interrogatory. To the 9th interrogatory he says: I know nothing of the transac- tion inquired after by this mtrerogatory. To the 10th interrogatory he says : I did not see any of them. I did not see Alexander McLeod at the time mentioned in this inter- rogatory to my knowledge. To the 11th interrogatory he says: Seven boats started ; I do not know how many reached her, nor how many returned in company. To the 12th' interrogatory he says : I know Sir Allan N. iVIcNab ; I do not know where he was at the time the expedition started. I do not know by whose command the expedition was undertaken. 1 never heard Sir Allan McNab give any directions in reference to it. To the 13th interrogatory he says : Captain Drew was in com- mand of the expedition. I do not know by whose orders he took the command. To the last interrogatory he says : I know nothing further touch- ing the matters in question. J. P. BATTERSBY. Sworn at the (own of Hamilton, Canada, this 17th day of Septem- ber, 184-1, before me, Secker Brough, Commissioner. Answers to the interrogatories by way of cross-examination, pro- posed to John Palmer Battersby, a witness produced, sworn, and ex- amined on the part and behalf of Alexander McLeod, in a suit now pending in the Supreme Court of Judicature of the people of the State of New York, before the Justices thereof, at the suit of the said people, upon an indictment for murder, before Secker Brough Esquire, a Commissioner, under and by virtue of a commission issued out of the said Supreme Court, and under the seal thereof, pursuant to an order of the said Court, entered on the 13th day of July, in the year of our Lord one thousand eight hundred and forty-one. To the 1st cross-interrogatory he says : I reside at the village of 24 ' iV '»i. J !• M K y IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I l^|28 |2.5 | 5o ■^~ M^H IK ■^ Igg 1.8 L25 1.4 |l.6 ^ 6" — ► V] <^ /a /. W ';' Hiotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 186 GOULD S REPORTER. rU Ancaster in the Gore District and Province of Canada, and have resi- ded there about four years. 1 am a native of Ireland. I have resi- ded in Canada between four and five years. I am forty-four years of age, and am a farmer. The tlie 2d cross-interrogatory he says : I was employed at Chip- pewa as a Lieutenant in the Navy, in December 1837. I was not at- taclied to any vessel, but I had charge of a number of boats. I was not attached to the land forces. To the 3d cross-interrogatory he says: I never saw Alexander McLeod to my knowledge. To the 4th cross-interrogatory he says : I never had an interview with McLeod, or heard him converse or speak on any subect to my knowledge. To the 5th cross-interrogatory he says : The answer to this inter- rogatory i^ contained in the answer to the last preceding interroga- tory. To the 6th cross-interrogatory he says : No. To the 7th cross-interrogatory he says . I know nothing of the matter inquired after by this interrogatory, nor have I ever under- stood anything from him on this subject. To the 8th cross-interrogatory he says : No. To the 9lh cross- interrogatory he says : It never occurred to me, and I was not aware at any time what vessel we were going to at- tack ; but as we were about to push off from the shore Captain Drew called me out of the boat and told me we were going to attack a steamboat. I did not communicate with McLeod on the subject in any way. McLeod was not present to my knowledge when it was communicated to me. I do not know whether McLeod knew of it or not. To the 10th cross-interrogatory he says : I first discovered that the Caroline was at Schlosser when I observed the fire, or at least that the vessel attacked was at Schlosser, for at that time I did not know the name. McLeod never at any time informed me where the Caroline was. I think I commenced preparations for an expedition about three hours before we started ; though I was not aware what the particular object of the expedition was to be ; went immediately upon my return to my quarters. To the 11th cross-interrogatory he says: I do not recollect whether I was at Davis's tavern, the day after the night of the burning of the Caroline. I did not see JlcLeod there to my knowledge, nor did I ever converse with him about the burning of the Caroline, on the Monday or at any other time. To the 12th cross-interrogatory he says : I was present at the burn- ing of the Caroline in December, 1837. I was concerned in that ex- pedition and did see the embarkation. I suppose about two hun- dred people were upon the shore at or near the place where the boat started. To the 13th cross-interrogatory he says : I do not know, but to the best of my judgment, fifty or fifty-five persons embarked in the expe- dition. I did not know all the persons who went on the enterprize, I was one of the number. Seven persons were in the boat which I m my o Toth few bel ing the drafted boats, beliel'e. To til played know w To th usual an form, of their 'r M. .*i MCLEOD S TRIAL. 187 ive resi- ive resi- years of at Chip- s not at- . 1 was lexander nterview !ct to my his inter- nterroga- ig of the -^er under- red to me, )ing to at- tain Drew a attack a he subject e when it leod knew irered that or at least e I did not where the expedition rt'are what (imediately recollect le burning i?ledge, nor aroline, on It the burn- in that ex- two hun- where the but to the in the expe- enterprize, at which I went in, I was not on the Caroline, and took no part in her destruc- tion. To the l-lth cross-interrogatory he says : Small boats of about four oars, cannot say how many were in each boat. 1 think the boats were all of the same size and description, except the one I went in. Seven boats started. The boat I went in, was a rough unpainted boat without a keel. To the 15th cross-interrogatory he says : I did not know all who embarked in the expedition. I did not see the face of each one who went on the expedition. To the 16th cross-interrogatory he says: I knew all in the boat with me. I recognised each of them, but cannot say that I spoke to each of them individually. Capcain Drew commanded the expedi- tion. I commanded the boat I was in. To the 17th cross-interrogatory he says :"I did return in the same boat in which I embarked, and the same persons returned with me. To the 18th cross-interrogatory he says : They did not — two failed in reaching the Caroline ; 1 comijianded one of them and do not know who commanded the other. We rowed up to the Buckhorn Island — and on perceiving the fire from the vessel we returned to Chippewa. I have no knowledge of the other matters inquired after by this in- terrogatory. To the 19th cross-interrogatory he says ; I da not know of any man in the expedition of the name of McLeod. To the 17th cross-interrogatory he says: The expedition did not embark from any wharf or pier, but in the first instance from the bank of the Chippewa, and having tracked up the Niagara river about a quarter of a mile, then finally pushed ofT. To the 21st cross-interrogatory he says ; The boats all lay at the brink of the river Chippewa, at a short distance from each other, the boats all started at the same time, with the exception of the second boat, which failed to reach the Caroline, which latter started a short time after the others. To the 22d cross-interrogatory he says : The two boats which failed to reach the Caroline returned at the same time — I do not know when the others returned, or when or where they disembarl'ed. I did not see 01' recognise any person engaged in the expedition, except those in my own boat. To the 23d cross-interrogatory he says : With the exception of a few belonging to the Royal Navy. I believe all the persons compris- ing the expedition were militia volunteers. They were not levied or drafted but came as volunteers. They were not marched up to the boats. Each commander of the boat collected his own crew as I beliefe. To the 24'th cross-interrogatory he says : The force was not dis- played in military order previous to its embarkation. I do not know whether it was so displayed upon its disembarkation. To the 25th cross-interrogatory he says : They were dressed as usual and customary, and in their own clothing, and not in any uni- form. 1 have no recollection of what particular kind was any part of their dress. Hi him \ ■■ ■MM mJ'0M' u i 1^ ''if 188 GOULD'S REPORTER. ■Ml To the 26th cross-interrogatory he says : The party in general were armed with swords and pistols. 1 think the greater portion of the swords were usual cutlasses, and were procured through Capt. Drew. To the 27th cross-interrogatory he says : I have no knowledge of the matter inquired of by this interrogatory. To the 2Sth cross-interrogatory he says : I do not know at what time the force which reached the Caroline disembarked. I and those in the same boai with mc, and the people in the other which failed to reach the Caroline disembarked about midnight. The night was not moonlight or cloudy, but rather dark. Those in my boat dispersed to their quarters in Chippewa. I know nothing of the movements of the others. They were not together, to my knowledge, at sunrise. I have not seen that force or any part of it since together as a separate force, but have seen individuals of it in and about Chippewa serving in different corps. To the 29th cross-interrogatory he says : I think about nine o'clock. To the 30th cross-interrogatory he says : I know nothing of the matters inquired of by this interrogatory. To the 31st cross-interrogatory he says : I answer to this the same as to the last preceding interrogatory. To the 32d cross-interrogatory he says : My answer to this is the same as given to the preceding interrogatory. To the 33d cross-interrogatory he says : I have no knowledge whether any one of the persons found on board of the Caroline was killed or wounded. I did not see any one killed or wounded. I did not discharge a gun or pistol, or strike any one with any weapons. To the 3ith cross-interrogatory, he says : I have no knowledge of, or reason to form a belief respecting the matter inquired of by this interrogatory, except the statements of individuals who have inform- ed me, and I believe correctly, that no person was on board of the Caroline when she was cut loose and sent over the falls. To the 35th cross-interrogatory, he says : I have never been on shore at Schlosser. I have no knowledge whether any of the attack- ing party went on shore there. To the 36th cross-interrogatory, he says : I did not take or carry away anything whatever from the Caroline, and have no knowledge of the acts of any other individual in reference to the matters inquir- ed after by this interrogatory. To the 37th cross-interrogatory, he says : I believe I heard in the course of the day of the destruction of the Caroline, that a steam- boat was plying between Schlosser and Navy Island.' Do not recol- lect whether I heard she came or was coming from Buffalo, and do not recollect that the name of the steamboat was told to me before her destruction. I do not recollect who informed me — Alexander McLeod did not. To the 38th cross-interrogatory, he says : I do not know, nor have I ever seen, to my knowledge, or even heard of a person named Syl- vanus S. Kigby. MCLEOD S TRIAL. 189 ■I ;eneral tion of 1 Capt. dge of ,t what I and which le night \y boat of the I have separate serving lut nine y of the the same [lis is the nowledge jline was id. I did eapons. edge of, f by this fe inform- ird of the been on le attack- er carry mowledge ers inquir- ard in the a steam- not recol- o, and do me before •Alexander /, nor have lanied Syl- To the 39th cross-interrogatory, he says : My last answer is a re- ply to this interrogatory. To the 40th cross-interrogatory, he says : I never did. To the 41st cross-interrogatory, he says : I do not know whether he was on board the Caroline or not, and have never heard from him that he was. To the 4'2d cross-interrogatory, he says : I have no knowledge of the matters inquired of by this interrogatory, and have received no information respecting them from the said Rigby. I have no know- ledge where he now is. To the 43d cross-interrogatory, he says : I never saw him to my knowledge. To the 44th cross-interrogatory, he says : I neither know, nor have I heard McLeod say anything upon the subject of this interro- gatory. To the 43th cross-interrogatory, he says : Alexander McLeod nev- er told me, nor any person in my hearing, anything relating to the Caroline. To the 46th cross-interrogatory, he says : I neither know, nor have heard McLeod make any statement respecting any of the matters in- quired after by this interrogatory. To the 47th cross-interrogatory, he says: I never spoke to Mc Leod, and never heard him speak, to my knowledge, nor to my knowledge did I ever speak in his presence. To the 48th cross-interrogatory, he says : I did not. To the 49th cross-interrogatory, he says : He did not, as I know, or have understood from him. To the 50th cross-interrogatory, he says : I did not. To the 51st cross-interrogatory, he says: Seven were first engag- ed in the expedition, and all started from Chippewa creek. One boat grounded at Buckhorn Island : it was the boat I was in, and it was so grounded to rest the crew. To the 52d cross-interrogatory, he says : No person was employ- ed to pilot the boats, to my knowledge. I never heard the name mentioned in this interrogatory, mentioned before this, the time of my examination. To the 53d cross-interrogatorj^, he says : In my answer to the 12th and 13th interrogatories, I stated that I did not know by whose command the expedition had been undertaken. To the 54th cross-interrogatory, he says : I have no knowledge whatever of the matters inquired after by this interrogatory. To the last cross-interrogatory, he says : I have no further know- ledge touching the matters in question than what I have already stat- ed in this my examination. J. P. BATTERSBY. Sworn at the town of Hamilton, Canada, this 17th day of Septem- ber, 1841, before me, SECKER BROUGH, Commissioner. :f ti, ( PI 100 GOULD S REPORTER. U.* At the conclusion of the reading of this deposition, the court adjourned 10 2 o'clock. KRIUAY AFTERNOON. On the resumption of the proceedings after the recess for dinner, Mr. Spencer said tiiat, as the remainder of the depositions contained merely collateral evidence, he proposed to introduce at present other oral testimony. William Press was then called and examined by Mr. Spencer — I now reside at Hamilton, in Canada; 1 am a tavern keeper; I keep the Prome- nade House ; I lived at the village of Niagara, from 1835 to the first of last July ; 1 was a tavern keeper tiiere ; 1 knew MeLcod well at that time •, 1 made his acquaintance soon after I went to reside at Niagara ; I lived about 300 or 400 yards from him ; I recollect the troubles in Cana- da; 1 was at Chippewa only once during those troubles; I was there on the 29th of December ; I returned to Niagara the same evening ; I went on business ; I took two passengers in a wagon from Niagara to Chippe- wa ; I recollect the day from an entry in my cash book of the sum I re- ceived for their conveyance ; I also recollect it by the burning of the ('arolinc, of which I heard the next day ; the magistrates were sitting there ; I left Chippewa the evening of the 29th, a little after dark ; I |)Ut my horses in a place a little way from Davis's ; Mr. O'Keith rode down with me, and Mr. McLcod rode with me to Stamford ; I mean the prisoner at the bar ; Stamford is about six miles from Chippewa ; the roads were very bad from Chippewa to the Falls ; they always are in wet weather ; in the state in which the roads were then, it would take an hour and a half to ride down ; McLeod left me at Mr. Morrison's gate ; I knew Raincock, who has been spoken of, very well. He left Canada before the troubles ; shortly after I received a letter from him from New York ; I expect he has not been back since ; I have heard of his being in England since, as a clerk on a railroad ; I was told by a person who saw him. Cross-examined by the Attorney-General — The wagon of which I speak was an open wagon ; the distance from Niagara is about 18 miles ; 1 tra- vel about frequently with passengers ; I always make an entry when I take passengers, because I was in partnership with another person ; O'Keith was clerk of the steamboat Coburg ; I always enter the date of the transaction ; I cannot recollect what time I reached home, it must have been after ten o'clock ; there was a guard at Niagara ; the fire com- pany was the principal guard ; I was a member of that company ; we relieved guard every hour ; I was drawn on guard that night ; it was an independent company, and we always drew ; I was not on guard that night ; I believe I spoke to some one respecting the time I might have been at home that night; I might have said I was there about nine o'clock ; it was not before sundown that I left Chippewa ; it was twilight ; I arrived in Chippewa before dinner ; I saw McLeod in Chippewa ; he asked me when I was going back again, I told him ; he asked me if I would take him down ; I saw him some time before I stai-ted, for I know I waited for him and got very impatient ; I believe he got into my wagon at Davis's ; when the roads are bad it usually takes me about four hours to drive to Niagara ; I hud to walk my horses some times ; from Chip- pewa to Stamford the roads were very bad, the other part was better ; McLeod had not a horse there ; I have no recollection that he had a MCLEOD S TniAI-. 191 horse ; my recollection is porfcct thnt it was that day ; I might have been at Cliippcwu six moiitlis before ; I win ii(»t tlicn; bdon! (hiring th(! occu- pation of tlio island ; I was not tiiorc again until thn summer; the burn- ing of the (Jurolino fixed the day on my nrollection ; I don't recollect l!ie day on which tlie island was evncunlcd ; I don't recdllect that I ever told sheriil" Stone, of Niagara, lliat 1 could not recdllrrt that McLeod rode with mo that night ; I don't believe I ever did ; 1 rec^illect hearing of McLeod's arrest; I was told he referred to uw. for proof of where he was, but he never sent for me ; I was always convin('ed he was not present at the burning of the Caroline ; 1 have never said I was doubtful about it ; the two persons that I took up were Mr. O'Kciili and Mr. Troop ; l.)"Keith I took again with Mr. McLeod ; 1 received §.5 for the conveyance of Troop and O' Keith. Did you carry them up and bring (^"Keith l>ark, for Sr) ? It may have been so. Did you go on guard on your return .' No. Did you make the entry then ? It is like 1 did. llave ynu a reenUcction of the act? No. Might it not have b( en the next week ? No, certainly not — the other entries follow on under the next day. Might you not have made it liie ne.xt morning? I think not — that would have been quite unusual, ^'ou recollect they paid $5 ? Yes, because it is entered. Where did they pay it ? I don't know. Who was 'J'roop ? I don't know — he was a stranger to me. Was the niglit dark .' No. Was it moonlight ? I am not sure, but it wasn't very dark. May it not be that, as you don't recol- lect receiving the $5, that it may have l)ecn received at some subsecjuent time ? No. VVhen you left McLeod, did he intend going on to Niagara ? No. You lion't know any thing of him after he got out of yoin* wagon ?* No. Did he ask you to stop with him ? No. Did you ever say that your evidence wouldn't be of avail, as McLeod had time enough to go to Schlosser and back again I Yes. The proceedings of the court were here interrupted by a terrific hail storm. The court room became almost dark as night, and the rattling of the hail against the windows, some of which were much broken, over- powered the voice of the witness. The rain fell in torrents, the lightning flashed, and the thunder rolled for some time after, and rain fell through the ceiling of the court room in copious showers. When the storm sub- sided, the examination was resumed. I may have said that my evidence would not be of much importance to McLeod, as he might have got a horse and gone back twice from the time I left him to the time the act was done. The roads were soft and miry. John W. Morrison, examined by Mr. Spencer — I live at Stamford, in Upper Canada ; I have lived there six years ; I removed from Toronto j I arrived in this country from Europe in June, 1835 ; 1 know Alexander McLeod, perfectly ; I made his acquaintance in 1836 ; I had seen him occasionally from that time ; I heard of the destruction of the Caroline on tly morning of the 30th Dec(!mber, 1837, about eight o'clock ; my boy told me that Col. Cameron, late of the regiment that I belonged to, wanted to see me at the gate ; I went to the gate and saw him, and he asked me if I had heard the news ; I asked him what it was ; he told me a party had cut out the Caroline, and brought her, and sent her over the Falls ; he said it was done the night before ; I then said to him, your friend, McLeod, is in our house, won't you come up and see him ? He ■■ M H nw w ';i^«'^*^' V I' {J; 102 GOULD S REPORTER. IV w begged to bo excused, as ho was in a great burn ; be was travelling in a wagon; lie gave rnu a piccf of wood, wliicb lu; said was part of tbf Caroline ; I cut a piccf from it, and nturned tlic remainder to liim ; I un- derstood it had l«;cn got under the F.ills ; I beard several people pass t\v gate during tlie day, and make remarks on the burning of tbe Caroline. Col. Cameron was an arquaintance of mine ; wo served togetber for four teen years in France, Spain, and Portugal, under the great Duke of Wel- lington. McLeod was then in my eottagc ; be came there about balf-pasl seven the night before, and slept in our |)arlor; be drank tea there that night ; he took his breakfast in tbe same room that he slept in at my cot- tage ; MeLeod and myself retircfd to bed about half-past twelve o'clock ; Mr. McLeod was an old acquaintance ; he was not used as a stranger, and I left him in the evening with the family ; about half-past nine, or from that to ten, we sat down and had a tumbler of toddy ; be had not left his room fluit morning when I saw Col. Cameron; when I returned to the cottage from Col. Cameron, I said, " McLeod, what do you think has bappfiued ?" I then told him Col. Cameron bad just told me, that a party bad gone last night and cut out the Caroline, and sent her over the Falls; be said, "you don't say so;" I said I understood it was so; Mc- Leod said, " I would to God I had been there — Captain, where is Arcby ? I wish you would tell him to get my horse ready." Archibald, my .son, went otf to g(!t tbe horse from tbe stable; McLeod was pressed not to think of going without breakfast ; be agreed to remain ; he dressed before breakfast, and after breakfast be went down to tbe gate where bis horse was ; he rodi; up towards Cbip|)ewa ; I did not see McLeod again, I think, until tbe afternoon of the 2d of January following. Cross-examined by Mr. Ilawley — My age is 58 ; I was born in Ayr- shire, North Britain ; I was in service under Sir John Moore, who was killed at Corunna, and afterwards under his Grace tbe Duke of Wel- lington. Mr. Hawlcy — Were you drafted into the army ? Witness (with great astonishment) — Did you ever hear of an officer being drafted into his majesty's service ? (Laughter.) Mr. Ilawley — How did you get in ? Witness — As other gentlemen do. Mr. Ilawley — Were you drafted from the militia ? Witness (with a Scotch accent) — I beg you will not talk to me about being drafted, for I cannot bear it, as a British officer ! Mr. Ilawley — Well, I am a plain republican, I don't know much about these things. Will you tell me how you got into tbe service, an4 in what regiment and capacity. Witness — I entered the British army in 1807 as ensign in the 79th re- giment of Highlanders. Mr. Hawley — Is that a commissioned office ? Witness (with apparent astonishment) — I should think so. , Mr. Hawley — IIow did you get it ? Witness — By my friends. My father was in the service under till Earl of Stair and George II., which is a pretty long story. Mr. Hawley — Was your commission purchased for you ? Witness — I purchased it for myself in 1807. Mr. Hawley — How long did you remain in the service in Europe ? Witness — I remaiDed until 1821, upwards of 14 years. Mr. Witi Mr. Witr Mr. Witri Mr. 1 Witn I serve Mr. I Witn Mr. [ Witm Mr. I Witnc as forme Mr. H Witne Mr. H Witne in his lift Mr. H in? Witnej when he out rappi lect who say much Mr. Hi Witne; and was i and very Mr. II Witnes table, myi Mr. Hj Witnes Charley Mr. Ha Witnesi Mr. Ha Witnes: Mr. Ha Witnesi Mr. Ha Wigie and Sophit Mr. Ha Witnesi now be 24 of Jersey. Mr. Ha !Sf illing ill rt f)f the 1 ; I un- pass \\v ^nrolint'. for four of Wei- half- past licre that ; my cot- o'clock ; stranger, nine, or c had not returned you think ne, that a over thp so ; Mc- 3 Archy ? I, my son, led not to 3ed before : his horse in, I think. n in Ayr- u who was e of Wel- an officer me about nuch about nd in what e 79th re- jr tli Earl uropel MCLEOD'8 TRIAL. 103 jMr. Ilawlcy — How high was your rank when you left ? Witness — I was a lieutenant. Mr. Hawley — Are you a lieutenant now ? Witnes.s — I retired on full pay as a li«!Utenant in his majesty's army. Mr. Hawley — Are you on fulf pay now i Witness — Yes. Mr. Hawley — Which of the political parlies do you favor? Witness — Political parties! None whatever! I serve my country — I serve the government be it what it will, for the period. (A laugh.) Mr. Hawley — When did you come to America .' Witness— 1 landed at New York, May 28, 1835. Mr. Hawley — And became acquainted with McLeod in 1830 ? Witness — Yes. Mr. Hawley — And you remained on intimate terms with him? Witness — Yes, and am so yet, but he has not been so olten at my house as formerly. Mr. Hawley — Did he often come to eat at your house ? Witness — Oh, yes. Mr. Hawley — And to lodge ? Witness — No. I don't think he slept there above three or four times in his life. Mr. Hawley — Were you in the house, and did he knock when he came in? Witness — I think, to the best of my knowledge, I was in the house when he came ; we do not expect gentlemen to come into our house with- out rapping ; if they attempted it, they would not get in. 1 do not recol- lect who went to the door, it might have been myself; McLeod did not say much, but seemed to befogged a little. Mr. Hawley — How came McLeod to stay at your house ? Witness — Because we asked him ; he said he was going to Niagara ; and was intending to return in the morning ; I told him it was a long way, and very muddy ; and after a little persuasion, he got off his boots. Mr. Hawley — What next ? Witness — I fancy they were carried away to the kitchen. At the tea table, myself, my wife, and sons, and daughters sat down together- Mr. Hawley — How many sons have you, Mr. Morrison ? Witness — I had three at home, at the time, Archibald, George, and Charley. Mr. Hawley — How old was Archibald at that time ? Witness — He was eleven at the time. Mr. Hawley — How old was George ? Witness — He was two years old. Mr. Hawley — How old was Charley then ? Witness — He must have been very young. Mr. Hawley — How many daughters had you at home ? Wi|^ss — Let me think, I believe I had four, Ellen, Harriet, Emma) and Sophia. Mr. Hawley — How old was Ellen then? . . Witness — She was born in France on the 6th of June, 1817, and must now be 24. The next was two years younger, she was bcrn in the island of Jersey. Mr. Hawley — Was your lady at home ? 25 f,1 1 I ' i, IP ■ ; •■•l Mi 1- ''■:- J '.t ! i- WM i,,_:i 194 GOULD S REPORTER. Witness — My wife; ? Mr. Hawlfv — Vcs. Witness — Uliich vifc ? I had two wives. (Here the audience were convulsed with tliat which, but for the stern ncss of tiio court, and their rigid exaction of order, would imve proved an open outhreak of Inujihter. Tiie mind of tiu; witness iiad doubtless been inatlvertently thrown back ti[)on by-gonu days, rather than the cot. tuge scene under consideration.) Mr. Hawley — Had Mr. McLeod walked to your place ? Witness — I suppose lie had rode, because ho generally rode. Mr. Huwlcy — Uid you put his horse away i Witness — No, Archibald had care of the horses; McLeod always had a spare horse in my stable, and a wagon ; ho had a great deal of business at that time. Mr. Hawley — What made you think that McLeod was a little/«^'i,'crf ? Witness — Because he was all muddy, and cold, riding in a wagon, or any way, whiitevcr, that ho might come. Mr. Hawley — Do you know what way he came tlicrc ? Witness — 1 tell you plainly, 1 do not know what way he came there ; but I have reason to suppose that he rode. Mr. Hawley — When a gentleman comes to your house, to stay over night, ilo you not, as a matter of course, ask if he has a horse, and sec that it is put up ? Witness — McLeod knew the barn as well as I did, and could put his horse up as well as 1 could. Mr. Hawley — But did not Archy see to such matters ? Witn.ss — He did, when told to do so. Mr. Hawley — Did you tell him to do so that night ? Witness — When I told him to supper the horses, I told him if he found McLeod's horse at the gate, to supper him also. McLeod had two horses with m'!, Bob and Charley, one had been at my place two months. Mr. Hawley — What hour of the night was it, when you took your tea ? Witness — It might be about eight o'clock ; the family retired, I think, about nine or ten o'clock. Mr. Hawley — Do you generally have a bed in your parlor ? Witness — We do not ; it was upon a stretcher. Mr. Hawley — When was the toddy brought on ? Witness — It might have been pretty nearly ten o'clock. Mr. Hawley — What was the subject of conversation, that occupied you till so late an hour as half past twelve ? Witness — Really, I do not recollect the subject of conversation. Mr. Hawley — Did you ask him in relation to the movements at Navy Island ? Witness — I do not remember that I asked him about any particular movements — though it is probable I did ask him about Navy Island. ■*' Mr. Hawley — Did he tell you the state of affairs at Chippewa ?• Witness — Not particularly. Mr. Hawley — Did he say any thing about the steamboat Caroline ? Witness — It strikes me there was very little known of the Caroline at that time. We had heard she. was assisting the Navy Islanders, in carry- ing munitions of war, but I did not trouble myself with the like of that. ;he stern- c proved doubtlcs^- n the cut- Iwuys hail if busineb> fugiicd ? wagon, or me there ; ) stay over se, and see uld put his if he found two horses iths. your tea ? ■ed, I think, ;cupied you ion. nts at Navy y particular jland. ra?* roline ? Caroline at rs, in carry- of that. MCLEOD S TRIAL. IJ.-) Mr. Iluwiey — But if timt boat wtt.s iu;lu:illy ussisiing the rebels, would vou not have tlioiiglit ill of it ? Witness — I did liiink ill of it — it was niiturul. Mr. S|ii iicer lliouglit lliat an uiijusliliuMc lutitudo was taken by llir couii.scl I'ur tlie pro.sceiuiuri. The witness, wliost" ft(liiistioiH (IK I iierrn (tsscntial. Tho court — \V»'ll, sir, then you niunt Htop. The Attornt'y-(ji«'ncral reiimrlird, that his rollcnguc, Mr. Ilnwiey, oould not havi! intendrd any thing like diMre.s|)(H;i to th(! court, or nny thing not calculutcid to elicit truth — tJKtugh couiis*;! uro often cnlled on to put (pics, tions which are painful to all parlies. The court would not say timl it was an intentional dc^parture from tho ndes of propriety, but the etlect was Huch. All tho (picstions alwut his txiing drafted and his commission, had no more to do with the cuso than tlie liistory of the Kgyptians. The Attorney-CJencral then proceeded with tho cross-examination. The Attorn«'y-tieneral — Have you ever said to uiiy one that you could not lix the day McLeod was with you ? Witness — No, never. Did you ever say any thing of this kind to Mr. Dcfield, of Kingston ? Witness — I would not bo seen at all with him. Judge Clriilley, to tho witness — Vou will restrain your feelings. Attorney-General — Mr. Ucficld has been at your house ? Witness — lie was once brought to my house, but never came by invitation. Attorney-lieneral — Was Mr. Dofield at your house in January, 183S ? Witness — 1 do not recollect ; he was at one time. Attorney-General — Was ho ever at your hous(3 more than once ? Witness — 1 think he was, but was never asked to my house ; he has never been in my house more than twice to the host of my knowledge. Attorney-General — Do you recollect at any time of saying, in the pre- sencc of Mr. Defield, that you hoped the United States would get hold of McLeod, that they might punish him for tho affair of the Caroline i Witness — Never, never. Attorney-General — From what point did Colonel Cameron come that morning ? Witness — It appeared to me that Colonel Cameron had come from the Falls that morning ; I did not learn from him how he had got the infor- mation at all ; I do not recollect what piece of wood it was ; I am not a judge of wood ; it was a piece painted ; I think there was green paint on it. Attorney-General — Colonel Cameron told you it was a piece of the Caroline? - Witness — He did. Attorney- General — But did not tell you how he had got it ? Witness — No, no. Attorney-General — Do you say that you had heard of the Caroline be- fore? Witness — We had spoken of it. » Attorney-General — Who told you that the Caroline was carrying mu- nitions of war, Sac ? Witness — I think I was up there the day before, at Chippewa. Attorney-General — ^You there learned that the Caroline was conduct- ing in this manner ? Witness — ^Yes, from Col. Kenneth Cameron, not the one that I talked with, Col. Cameron, commandant under Sir Allan McNab, with the rank of irryipg niu- MCLkUU S TRIAL. 197 Colonel in Upper Canada; he and I were litutcnants together in the 7Uth re^iinent a lew yeiu'H. Mr. Speneer — Vou had heiter answer in few words. Jiidgt; (tiidley — Just answer the precise (piestions put to yon. Witness — i gcnierully leiirM( d liow tilings were gniiijj; on at ins ofl'iee in Chippewa ; I usually eulled tlurt; and saw iiiui ; I had heeii at the ollice of Col. (luMjeron the day i)e('ore ; I tlien; hariied tliut a vessel was seeneurry- ing tnuiiitions of war, vVe., hut diil not make particular iiii|uiry ahout it. There was not at this lime any particular cause of dissatisl'aclion lietwicn myself and McLeod. Attorney. General — Suhsequenlly st)nie domestic matter occurred, which <;ave yi»u dissatisfaction ? Witness — Now 1 hey you that — 1 would he very happy not to answer further. Attorn ing after leaving McNab's quarters ; he left there about ten or eleven o'clock in company of Dr. Foote, in a wagon ; and near the Pavilion Hotel McLeod passed witness on horseback, going toward the camp. Cross-examined by the Attorney-General. — Is a citizen of the United States ; went down there at the request of the Attorney of the northern district of New York j slept in the military quarters ; had an interview 26 t ; :(;■'' ! I'i I 2^ 'M w ' iv.4 202 GOULD S REPORTER. of upwards of an hour"with Col. McNab ; it was mostly a private inter- view ; on his arrival went to a Hotel ; got out and engaged a bed for driver and stabling for the horses ; then inquired for McNab's quarters ; went there immediately ; he had been at the Canadian camp at Waterloo, where he was furnished with a conveyance ; after the interview with Col. McNab had a glass of wine and went to the supper-room ; had some re- freshments there ; continued there for about two hours ; there were about half a dozen officers there ; Col. McNab left soon after going into the supper-room, saying he had business that would keep him out all night ; witness then went to his lodgings which were assigned him by the Colonel ; heard of the destruction of the Caroline when she was in flames going over the Rapids ; was awakened by a man rushing in and calling to a com- panion, saying, " Here's a splendid sight ; the Caroline's in a flame !" Did not himself see the Caroline ; knew it was an American vessel ; Dr. Footc heard all this ; witness wished Dr. Foote to get up ; but they both resolved not to get up, as officers would be there who might make un- pleasant remarks for them to hear ; there was not much disturbance ; saw McNab next day ; witness rose at sunrise ; went to McNab's quarters ; wished to know the circumstances attending the burning of the Caroline ; saw him ; breakfasted about nine o'clock ; then started for the Falls ; it was then about ten o'clock ; got there in about an hour ; it was there wit- ness saw McLeod ; he was then near the Pavilion ; would not swear to the particular house ; thinks he would not be safe in saying it was before eleven o'clock ; could not swear positively ; did not accost McLeod ; the prisoner was on horseback ; witness recognised him ; did not catch his eye, that he remembered ; have taken no particular interest in McLeod ; mentioned to Mr. Foote that he saw McLeod ; he said, " there goes McLeod;" nothing more was said then of that subject; I sent the wagon back with the boy, Luke Walker. Jasper T. Gilkinson was next sworn, and deposed that he has lived at Niagara since March, 1836 ; knew Raincock ; he left before the troubles ; he did not go in any notorious way ; he went in September or October ; wit- ness was of the force at Chippewa ; a volunteer ; was in Chippewa on the 29th ; lodged about half a mile below Stamford, at a tavern towards Niag- ara ; returned to Chippewa the next morning about ten o'clock ; saw McLeod ; he overtook witness and a person who accompanied him ; McLeod was on a bay horse ; it was between Stamford and the Pavilion ; when they got to Chippewa, rode along to near Capt. Usher's house ; two guns were 5red from" Navy Island at the party ; witness suggested the propriety of returning ; in returning, the lower battery was discharged at us ; one shot entered the bank of the river ; a soldier of the 24th picked up the ball and gave it to McLeod ; he took it home. Cross-examined by Attorney-General. — Went up to the end of Navy Island ; the upper end ; it was about ten o'clock when he came up with McLeod ; the roads were bad ; they might have been absent from Chip- pewa three-quarters to one hour ; it was an every day custom of his to go to Chippewa. The Court then adjourned. Mcleod's trial. 203 ate inter- a bed for quarters ; Waterloo, with Col. some re- vere about T into the all night ; 3 Colonel ; Toing over to a com- a flame!" jssel ; Dr. they both make un- ance ; saw 1 quarters ; Caroline ; c Falls ; it i there wit- t swear to was before ;Leod ; the t catch his 1 McLeod ; there goes the wagon as lived at roubles ; he ;ober ; wit- cwa on the ^rards Niag- jlock ; saw mied him; e Pavilion ; louse ; two Tgested the icharged at ;4th picked of Navy Inrie up with from Chip- of his to go SIXTH DAY. The Court re-asscmbled at the usual hour. Mr. Spencer informed the Court, that he had many witnesses in attendance that he intended to produce, to show more extensively the nature of the transaction out of which this trial had arisen. He now wished the Court to understand that the evidence was odered, though under the rule laid down, it was excluded. Jared Stockings brother of Mr. Samuel Stocking of Utica, was then called and examined : Resides at Niagara, was a Captain, and had command of a detachment of Dragoons, at Chippewa, during the out- break. He was there in December, 1837, knows William Press well. Press resided nearly opposite to him at Niagara. He was not related to witness. Witness saw Press at Chippewa, on the 29th December, and spent most of the afternoon with him. He said it was his first appearance there, and desired witness to show him the batteries. Press dined with witness. Witness also knew Mr. Raincock well. He was a custom-house officer at Niagara. Witness thinks Raincock left the country in the summer, or in Septem.ber. Witness was his creditor to a small amount, which Raincock could not pay when he went away. Cross-examined by the Attorney General. — Witness went to Niagara, immediately after the close of the late war with England, 1815, and has resided there ever since. He is a native of the United States — went to Chippewa' a few days after the occupation of Navy Island : was in service about five months — at Chippewa two months, at the Falls or Drummondville, nearly three months. Supposes there were troops to the number of four or five thousand — the Assistant Commissary having informed him, that he dealt out about five thou- sand rations daily. They felt themselves very safe with so many troops. Witness did not think of being subpa?naed here ; but was on his return from Montreal. Witness thinks it was three weeks after the destruction of the Caroline, when the evacuation of the island took place. Witness believes that a military party were sent over to the island after the evacuation, but he did not understand it was to take pos- session of the island. A fatigue party went over, with a view of cut- ting down the timber, which had previously, in some measure, obstructed the sight of the fortifications, so that, if they should return to the island, their movements could be better seen. Insurgents evacuated the island about the middle of January. After the evacua- tion witness went to the island. Witness was never examined or (juestioned on this subject before, or until since he came to Utica. What refreshed his memory was, that when it was learned McLeod was arrested. Press showed him the book in which he had made the entry. That was the first time it was ever mentioned, which was about three years afterwards. Re- collects hearing Press say, when told that McLeod was arrested, 'Good God, it cannot be, for he came from Chippewa with me that night.' After Press came to witness' quarters at Chippewa, he wished him to walk up with him to see the batteries. Witness did so, and the Caroline was making her first trip to Navy Island. p. ■ \ ^t:;-,-. ^M i fm I in 20i GOULD S REPORTER. Question by the Attorney General. — Are you, or are you not aware, Mr. Stocking, that after the Caroline was destroyed, another boat came down 1 Witness : Yes, Sir, I think there was a boat there at the time of the evacuation of the island. It was sent down, I think, by order of General Scott. The Attorney General. — Do you know that it was the Caroline which you saw crossing to Navy Island 1 Witness. — I knew, or I supposed I knew it to be the Caroline. I saw it go twice back and forth to the Island on the 29th, and that was the only boat that I saw. Mr. Press was with me at the time. Witness usually dined at about 2 o'clock. It was after dinner they walked up the river, and they may have been up there two or three hours. Witness was with Press both before dinner and after return- ing from the walk. The boat was easily perceived from where they were. Men were at work at the time, erecting the batteries with large timber which had been got out to ship to England. The Island was within rifle shot. The boat was a small one from appearance ; it appeared to be one of the smallest class. The battery was eigh- teen or twenty feet in length. One battery was completed and a gun mounted. There were three batteries. One which was in progress of building was nearly opposite the head of Navy Island. There was one at the end of the island and one nearly at the centre. It was three or four days, and perhaps a week after the evacuation that witness went to the Island. Although he did not recollect the day of the evacuation, yet he recollected distinctly the day when Mr. Press dined with him. Question by the Attobney General. — How is it that you cannot recollect within a day, or week, or fortnight of the time of the evacuation, when you recollect so distinctly the day that Mr. Press dined with you 1 Witness. — From the circumstance of Press dining with me, of our walking up the river togethei', and of seeing the Caroline cross- ing to and fro, and the burning oi the boat on that night — all these things helped to confirm me as to the time. Witness found on the Island nothing more than the appearance that there had been soldiers there. There was a log building standing which he was told had been their head-quarters. Witness saw upon the island the remains of some buildings put up with rails or logs, and covered with brush. They were small, from ten to eighteen feet, and three in number. Besides these there was the old log building previously occupied for a dwelling. They found no person on the Island. Witness saw McLeod that day ; thinks it was near Davis's tavern. Did not see him after that. He was not in the military business, and do not recollect seeing him again. Wit- ness belonged to a troop of dragoons, and did his duty as a militia man. His quarters were down at the Chippewa creek. Had never interfer- ed much with the politics of the country. By Mr. Jenkins. — There was about two-thirds of the way up the Island the remains of a battery which appeared to be Very well con- structed. The engineer must have understood his business. There were batteries in the course of construction on the main shore when MCLEOD S TRIAL. 205 witness went up with Mr. Press. Knows that the upper battery was there, for they could see people movinjr about it. They could be plainly seen at work. There were, witness thinks, but two bntteric upon the Canada shore, neither of which was erected behind a house. The corps to which witness belonged had been organized about ten years. By Mr. Spencer. — Col. McNab's quarters were a short distance from Davis's tavern — eight or ten rods. I received a note about six or 7 o'clock on the evening of the 29th from Col. McNab, desiring me to give to an orderly that he sent as many arms as we could spare. Mr. Spencer then rose and said, this Court having felt it its duty to exclude the evidence which we proposed offering at the com- mencement of the trial, founded on national law, it, of course, leaves but a single question of fact to be investigated in this trial ; and that is, whether in truth McLeod was one of the party who attacked and destroyed the Caroline. To this point, therefore, we have directed our attention, and produced all the evidence in our power to bear on it ; and therefore close the defence on^ which we shall rely for the acquittal of McLeod. REPLY TO THE DEFENCE. The Attorney General said, before Ave call witnesses I will offer some documentary evidence. I offer first the enrollment and then the license of the boat in Buffalo. Mr. Spencer. — Let it be read, sir. The Attorney General. — It is not necessary, unless you dispute it. The enrolment is dated the 1st of December, 1837. The license bears the same date. I will now, also, if the Court please, read the statement of the prisoner. Mr. Spencer. — At what time and place made ? The Attorney General. — Before Justice Bell. Judge Gridley. — I think evidence cumulative is not strictly ad- missible. Attorney General. — It is the statement of the prisoner, made be- fore Mr. Justice Bell, when he was informed of his rights. Judge Gridley. — Is it properly authenticated 1 Attorney General. — Yes, sir. Mr. Jenkins. — And it conflicts with the statement of some of the prisoner's witnesses. The Attorney Generak here proceeded to read the statement of Alexander McLeod, taken before Justice Bell, which is as follows : Alexander McLeod states that the evening of the night previous to the attack of the Caroline he was informed she had left Buffalo for the service of the Navy Island people. Was one of ten persons who went in a boat with Captain Graham on the morning oi the 28th December. Went round Navy Island to look out for the Caroline. Did not see her and returned about 8 o'clock to Chippe- wa. About 3 o'clock that afternoon went to bed at Mr. Davis's. Got up about 7 o'clock or half-past. Came to Mr. Davis and told him to tell the hostler to get his horse. The stable keeper brought ? If 206 Gould's reporter. the horse to the door. I mounted him and went to Stanford, five or six miles from Chippewa, in company with Mr. Press, ii tavern keep- er of Niagara. Went to Captain Morrison's, tiuve the horse to his son, eat supper and went to bed about 11 o'clock. Next mornirifr w'as dressing, when Capt. Morrison came in and told me that Col. Came- ron had just come from l/hippewaand told him that they had burned a steamboat that morning or the evening before. Remarked to Capt. Morrison that it must be the Caroline, as the was expected down. Eat breakfast between eight and nine o'clock, and immedi- ately after got upon horseback and went to Chippewa. I met with James M. Dyke between Stamford and the falls, who informed me of the particulars. Was in the Pavilion a few minutes, and, arrived at Chippewa between nine and 10 o'clock, A. M. ALEXANDER McLEOD. Taken the day and year last above written, before me, Jonathan Bell, Justice of the Peace. The Attorney Gknf.ral then read the following : John Whitford .Morrison, a witness on the part of the said Alex- ander McLeod, on his oath before me, the said Justice, in the pres- ence and hearing of the said Alexander McLeod, saith : — that ho re- sides at Stamford, Niagara District ; resided there since 1836 — Col. Cameron first informed witness of the burning of the Caroline, at witness's gate, from 8 to 10 o'clock, he thinks, it was before 11 o'clock. The front gate of witness is on the road leading from Stamford to the Falls of Niagara. Remembers that between 7 and 9 o'clock on the evening previous to the burning of the Caroline, McLeod, the prisoner, came to witness's house ; next morning about 7 o'clock he saw Mr. McLeod lying upon the stretcher. Went to the gate and saw Col. Cameron, who informed witness of the destruction of the Caroline. Thinks it was near 10 o'clock when he informed prisoner of the destruction of the Caroline. Prisoner Avent to Chippewa, as witness believes. W^itness is a retired officer of the British army on full pay. Witness knows prisoner was at his house at the usual time of going to bed, say from 10 to 12 o'clock, but witness does not recollect the exact hour that prisoner went to bed. Cross-examined. — Went to Chippewa next morning, thinks it was about 11 o'clock when witness started. Prisoner went first. Thinks it was about 8 o'clock when defendant eat breakfast. Witness saw Mr. McLeod's horse in the stable about 9 o'clock in the evening. Saw the horse again in the morning somewhere from 8 to 10 o'clock in the morning. Thiiiks Mr. McLeod was walking in front of the house when witness informed him of the destruction of the Caroline. Witness knew of his going to bed. Defendant might have got up and gone out of the house without witness's knowledge. Witness has never stated to any person that Mr. McLeod was not at his house on the evening in question, or that he did not know wheth- er he was there or not. Has not told any person witness did not know whether Mr. McLeod was there or not. Thinks he has had no conversation with McLeod on this fact or subject. Has told Mr. McLeod of his being charged with being there, and laughed about it itness saw Mcleod's trial. 207 Witness had not heard previously tlmt there was a steamboat com- ing down. Thinks it was dark when McLeod came to his house. Did not sec the liorse wiicn he came, but saw him afterwards. De- fendant generally kept his horses in witness's stable. Thinks the horse was a large bay horse : thinks he had a spot in the forehead. Thinks his son is about It years old. Has seen Wm. Defield and does not recollect having said any thing on the subject. Was examined by defendant. Witness has a family of 8 or 10 persons, who also saw defendant on the same night as before stated by witness. J. W. MORRISON, Lt. late 9th Regiment. Jlrchibald Morrison^ a witness on the part of said Alexander Mc- Leod, on his oath, before me, the said Justice, in the presence and hearing of the said Alexander McLeod, saith that he lives in Stan- ford with his father. Recollects hearing of the burning of the Caro- line next day. Defendant came to the house after dark, does not know the hour. Witness took defendant's horse and put him in the stable and fed him. Saw prisoner at supper that night. Saw defen- dant at the house the next morning. That morning two gentlemen called at the gate, one of whom was Col. Cameron, witness informed his father who went to the gate ; witness went with his father to the gate. Does not recollect where defendant was then. Thinks it was 10 or 11 o'clock when witness brought the horse for defendant. Witness recollects that defendant breakfasted there that morning Witness's mother and sisters were present at breakfast that morning. Cross-examined. — Witness is about 14 years old. Thinks the cir- cumstances now related occured last summer. Mr. McLeod was frequently at the house to spend the night. Recollects this particu- lar time in consequence of the burning of the Caroline. Witness saw defendant about 8 o'clock in the room. Thinks he was there about a week before, does not recollect the precise hour, thinks he did not take supper or stay all night. Was there again the same day, but did not stay all night. Was there two or three days after. Defen- dant occasionally when he came late at night would stay all night, frequently took supper. Witness thinks he was then about 13 years of age. Is not certain that this was last year. Does not recollect whether his father went to Chippewa that morning or not. Examined by defendant. — Defendant has noi been in the habit of going to his father's house since last winter. In chief. — Witness knew Col. Cameron when he saw him. ARCHIBALD MORRISON. Taken and acknowledged before me the day and year last above written. Jonathan Bell, Justice of the Peace. William Defield, a witness on the part of the prosecution on his oath before me, the said justice, in the presence and hearing of the said Alexander McLeod, saith he knows Captain Morrison. Never conversed with Captain Morfison on the subject of the burning of the steamboat Caroline until last evening. Captain Morrison inform- ed witness then, that he could not testify positively as to Mr. Mc • ,> !•'> ra: ,4 ■ , ■ '1" :), ill: J' SOS GOULD 8 REPOHTER. I Leod bcinfj at his hoiiso the night the Cnroline was burned, but he was there fref{iiently. This was stated in the presence of a third person whom witness tiiinks was Mr. Handy. Cross-exiiiniiied. — Docs not know where Mr. Handy is. Witness resides in Qncenston. Is nn intimate acquaintance of Captain Mor- rison. Was at Qneenston at the time the Caroline was burned. De- fendant itiquired where Mr. Defield resided during the winter after the burning of the Caroline, which question he declined answering. WM. W. DEFIELD. Taken and acknowledged before me the day and year last above written. Jonathan Bei.l, Justice of the Pence. Frederic Tench, a witness on the part of the said Alexander Mc- Leod, on his oath before me, the said Justice, in the presence and hearing of tiie said Alexander McLeod, saith that he resides in the vicinity of Queenston. Has known Captain Morrison several years. His reputation is that of a very honorable man. Witness having previously sent a letter to Captain Morrison requesting his presence at this examination. Yesterday afternoon went to Captain Morri- son's house. Captain Morrison came over with witness after his arrival at this house. Captain Morrison appeared to be excited con- siderably from drinking. Saw him and Mr. Defield together. Took Captain Morrison away into the other room. Cross-examined. — Did not hear Mr. Defield say any thing to Cap- tain Morrison. Saw them going to the window, Mr. Defield in the advance. FREDERIC TENCH. Taken and acknowledged before me the day and year last above written. Jonathan Bell, Justice of the Peace. Henry Phelps, a witness on the part of the prosecution on his oath before me, the said Justice, in the presence and hearing of the said Alexander McLeod, saith that he lives at the Center House in this village. Lived at Chippewa in the fall and winter of 1837. Lived there at the time of the burning of the Caroline. . Saw the boat burn- ing. Knows the defendant and has known him 3 or 4 years. Saw him the evening of the burning between 6 and 8 o'clock in the eve- ning, saw him again just before daylight or betwixt daylight and sun- rise. Thinks he could not have been mistaken in the man as he knows him well. Cross-examined. — Saw the defendant first coming across the bridge on horse back. Witness was 30 or 40 rods off. There were a num- ber of persons coming along across the bridge. Witness boarded at Mr. Smith's. The bridge is over a small creek. Witness lifted up the window at Smith's. Had been playing cards with Anson. Saw from Smith's window the defendant and other people crossing the bridge. Was up all night. Had been drinking, but could see well. Anson was teaming for Mr. Smith. Witness saw defendant at Mr. Davis's stable in the evening between 6 and 9 o'clock in the evening. !!li MCLEOU S TKIAL. 209 Defendant came about dusk witli liis hor.^p, had hiia put up and fod, and between tl and !) o'clock be went away on Iwtr.se back again. Did not stie the boats return from the biirnlii;; of the Can»line. but heard the people going np .stairs at Davis's. Thinks defendant i» not much altered. Tiiiidis his whiskers were then shaved ofl', thinks lie was lighter then than now, has never told this story before. Witness told MT. Robinson that he knew Mr. MeLcod, and told him if witness was wanted as a witness he would come. lias never heard defen- dant say that he was at the burning of the Caroline, but has lieurd otlier persons at Chippewa say so. HENRY PHELPS. Taken and acknowledged before me the day and year last above written. Jonathan Bki.i,, Justice of the Peace. Attornfa' Gknekal. — These examinations were had on the Ikli of November, 1810, before Jonathan Bell, at Lewiston, State of Neu York. I will now read the examination before M. T. Bowen upon the habcaa corpus. The date of the writ, li)th of November, the ex- amination, December 12, 1810. .'llcxamkr McLcod on being examined by the District Attorney, not on oath, says that on the Christmas-eve before the Caroline was burned he was at Bull'alo, and there learned that the steamboat Caro- line was then preparing to enter into the Navy Island service, antl that she was then lying at or near the mouth of Buffalo creek ; that he (defendant) the next day went from Bulfalo to Chippewa, Upper Canada, and there gave information that the Caroline was fitting out for the Navy Island service, and on the next day, which was Tues- day, made affidavit to it ; and on the night previous to the burning of the Caroline, defendant, on his way to Niagara, stopped at the Pavilion, Niagara Falls, and there learned that the Caroline cither had left, or was about to leave BufTalo, to come down to Navy Island ; and then defendant returned to Chippewa and called on Col. McNab and informed him of the fact, and McNab said he could not a<;t upon the fact that the Caroline had merely come down, and could do noth- ing. Defendant and Captain Philip Graham then got a boat between five and six o'clock, either on Thursday or Friday morning, and got eight sailors and went round the Island. They passed between Grand and Navy Islands about daylight, when they commenced firing upon them from Navy Island, and two musket shots were fired upon them from Grand Island. They got back to Chippewa about eight o'clock, and defendant remained at Chippewa all that day. Defend- ant went round the island to see if the Caroline had come down, but did not discover her ; but about two o'clock in the afternoon defend- ant saw her passing from Schlosser to the Island. Defendant then returned to John C. Davis's tavern, at Chippewa, and being rathei' unwell, went to bed about three o'clock in the afternooij, and got uj» again about seven o'clock, or a little before, intending to go to Nia- gara, and directed Davis to get his (defendant's) horse. Defendant got his horse and started away with a Mr. Press, in his (Press's) 27' ''\i mfl 210 nOVlU 8 UKPORTKn. '^m^RB^^ui 1 ,Wm 1 v|H| li wnc^on, (IcftMidnnt Ifmdiiia: liishorHp ; aiid when they nrrived at Stan ford, about live miles from (.'liipp«!\va, dcfoiidant ciillod in at Cajitain Morrison's, nn uc(|iiaiiiianco of defendant, and Morrison asked him (ven o'eloek next niMrninj ; and at between eii^ht and nine Captain Morrison eanie to defendai' in the parlor where he (defendant) had slept. Defendant then stand- ini^ in the door of the room, and AfcM'i'ison said : '•They have burned an America:! steamboat last niken well sim lew nion Subset tlii^ The A Morrison Marga being by vue cotta lain Mori place, wh ing of the heard her small pari Caroline \ tween sev she thinks eight and he came t night, unti put at the where the lire and w door open recollect. was a thin McLeod £ kitchen ; the kitche in the sam were in th close to w room door kept, to wi evening. witness's 1 Member of remained { was burnec MCLEOD S TRIALi 211 I. "" • Iff! some one hIjoiiM po to HiiU'alo, niid (I<>f'eii Hc lins had his ll, rh l»rt»kiMi. 'This hapiteiiud the vJ'id of April, is;js, and he lius Imrdly been well since, lie has had the a^jfiie, and recovoretl from that only a lew iiioiiths »>inco. AI.HX.WDICK MtLKOl). Subscribed by said defendiiiii, Alexander .Mclicod, in my presi«nee, this 17th ol December, INK). L. F. 13()\vi;.\, Jiidjjre, Counsellor, cVc. The Attounkv CiKNEIiai, n(!Xt read the depositions of AfariTuret Morrison, and Harriot Morrison, taken before .Indj^e Howeii, vi/ : ■i • DEI'OSITON OK MARfiAUKT .^lOIUUSON. .Mnrf^nrcl .Morrison, ti witness called on the part of the defendant, being by me duly sworn, deposes and says, that she resides at IJelle- vue cottage, near Stanford, Upper Canada. She is the wife of Cap- tain Morrison. In the latter part of IS.'JT, siie resided in the same place, which is about five miles from Chi|)pcwa. Kememhci's hear- ing of the burning of the Caroline. The lirst she heard (»f it, she heard her husband tell defendant of it in his, defendant's, bed- rttoin, n small parlor in witness's house. This was the morning after the (Caroline was burned. Thiidcs MeLeod came to witness's house be- tween seven and eight o'clock the evening before. He totdc tea, and she thinks supper, at witnesses house. Thinks that it was between eight and nine that he took tea or supper. It was some time after he came there. Thinks McLeod set up with witness's husband that night, until about twelve o'clock. That evening, McLeod's boots were put at the lire to dry, and witness slept within foiiif or live feet of where the boots were. There was a little space between the kitchen lire and witness's bed-room — that she always sleeps with the kitchen door open j thinks she, the witness, put the boots there, but cannot recollect. McLeod was not in the kitchen that evening. There was a thin partition between witness's bed-room and the room where McLeod slept, and the same partition between the parlor and the kitchen ; and there was a door which opened out of the parlor into the kitchen. She saw those boots by the kitchen lire in the morning in the same place where they were put the night before, and they were in the morning entirely dry. The key to the stable was kept close to witness's bed-room door ; was hung up a little over the bed- room door in the kitchen. McLeod did not know where the key was kept, to witness's knowledge. McLeod came there with his horse that evening. Col. Cameron, from Toronto, brought the intelligence to witness's house, that the Caroline was burned, and a Mr. Cameron, a Member of Parliament was with Col. Cameron at the time. McLeod remained at witness's house after he was informed that the Caroline was burned, until after breakfast ; she, witness, was getting break h i •^' 1^' 4i 1.V '^f 212 GOULD S REPORTER. fast at the time, and she then hurried it as fast as possible. McLeod left witness's house between nine and ten o'clock that morniiifr, and went towards Chippewa. No one went with him from witness's house. McLeod was not away from witness's house, from the time he came there that evening, until he went away the next morning, td witness's knowledge. M. MORRISON. Subscribed and sworn to, this 17th day of December, 1840, before me, L. F. BowEN, Judge, Counsellor, &c. The said witness, Margaret Mmrison^ on being cross-examined, deposes and says, that she has lived at Stanford five years, and has known McLeod about the same time. McLeod lives about ten or eleven miles from witness's house. McLeod came to witness's house that night on horseback. Cannot say whether he came there in a waggon and lead his horse. McLeod had been at witness's house before, but not frequently — thinks he had stayed there one nigli! before, which was Christmas evening. He stayed all night at thni time, and left there the morning after breakfast, which was the day after Christmas. He spent Christmas-day at witness's house. He came to witness's house in the evening of Christmas-day, and tin next morning she understood from him that he was going honn He never hud stayed at witness's house over night at any other time, nor has he stayed at witness's house since that time, but has been at witness's house since. She can't answer whether h^; daughter is the wife of McLeod. She cannot answer that \\i?' daughter is married to McLeod, for she has never heard anything of the kind. Witness's daughter lives with McLeod. Cannot answer whether they live together as man and wife. Her name is Ellen Norman Morrison. She was married to a man by the name ol Taylor, in Buffalo, and left him. When witness's husband informed McLeod of the burning of the Caroline, McLeod was dressing him- self in the parlor — ^this was before breakfast. She is sure this was the morning after the Caroline was burned. Witness's husband is now at home, or she left him at home. She thinks that Mr. Morri- son's second son, Archibald, put out defendant's horse that night. He is about fourteen years old, and is at home. Mr. Morrison wished McLeod to stay at their house that night. He came there between seven and eight, as she thinks, in the evening. Thinks her daughter was married to Mr. Taylor, in July, 1839. M. MORRISON. Subscribed and sworn to, before me, this 19th day of December. 1840. L. F. BowEN, Judge, Counsellor, &c DEPOSITION OF HARRIET MORRISON. * Harriet Morrison, a witness called, on the part of the defendant, being duly sworn, tleposes and says, that she is the daughter of Cap- tain Morrison. She remembers the time when the Caroline was Caroline ^va^ MCLEOD'S TRIAL. 213 burned. The first she heard of it, she heard her father tell McLeod iif it. This was the same morning after it was burned. McLeod was then in the parlor at her father's house. McLeod came to her lather's house sometime during the previous evening. McLeod that night slept in the parlor. McLeod vvent away between nine :iiid ten o'clock in the morning. Thinks he came there about seven or eight o'clock in the evening, and took tea there, but cannot say u'hether he took supper there. He went away after breakfast in the morning. She heard her mother remark the next moning, that .McLeod and her father had set up the night before till about twelve if'clock. Witness left the room, and went to bed between nine and len o'clock that evening. She saw tlie persons who brought the news of the burning of the Caroline, through the window, down by I lie gate. She had nevfer seen them before. When witness's lather told McLeod of the burning of the Caroline, witness was in ihe kitchen. A person cannot look out from the kitchen to the street, but can from witness's mother's bed-room ; and it Avas rhrouorh that window that she saw the men wlio brourjht the intel- ligence. HARRIET MORRISON. Subscribed and sworn to, before me, this 17th day of December, 1840. L. F. BowEN, Judge, Counsellor, &c. The said witness, Harriet Morrison, on being cross-examined, deposes and says, that she has known McLeod about five years ; that s;he cannot say how many times he, McLeod, had slept at her fatlier's liouse before tiie burning of the Caroline. He has slept there two or three times in all. She cannot tell wlien the first time was ihat he slept there. She recollects that he slept there on Christmas- night, and the night the Caroline was burnt, but she cannot specify any other night ; and if he ever slept there at any other time, she cannot recollect whether it was before or after the Caroline was burned. She don't recollect what time he came to her father's house on Christmas-day ; but recollects that he supped there. She (Joes not recollect what time they hau supper, the night the Caroline was burned. Thinks they had tea between eight and nine o'clock. McLeod came there on horseback. Witness's brother, Archibald, took care of his horse. McLeod was not walking in the road when lie was informed of the burning of the Caroline. He was in the parlor, and was not fully dressed at the time. She cannot re( ollect precisely what time in the morning this was; but McLeod break- fasted immediately after, and left witness's father's house about ten o'clock. HARRIET MORRISON. Subscribed and sworn, before me, this 17th day of December, 1810. L. F. Bow EN, Judge, Counsellor, &c. Here the Attorney General read, on the part of the prosecution, '"Mi. 1.' ..t»^ 214 GOULD'S REPORTER. although taken on behalf of the prisoner, but omitted to be read by his Counsel — 'the deposition of Duncan Cameron, as follows : Duncan Cameron, of the township of York, in the Home District, in the Province of Canada, Esquire, atfed sixty years and upwards, being produced sworn and examined on behalf of the Defendant in the title of these depositions named, doth depose as follows : To the 1st interrogatory. he says: I first became acquainted with Alexander McLeod at Toronto, in the Home District, aforesaid, in the year 1835, at which time I had a few words conversation with him, and since then, though I have seen him upon one or two occa- sions, I have never had any further conversation or communication with him. I do not know of what nation Alexander McLeod is a citizen or subject, but I believe him to be a Scotchman. To the 2d interrogatory he says : I do recollect of the destruc- tion of the Caroline. The time was about the end of the month of December in the year 1837, so far as 1 recollect. I was in Chippe- wa upon the night the Caroline was destroyed — and i arrived at Chippewa as well as I can remember upon the morning of the day upon which the Caroline was destroyed. The 3d, 4th, 5th, 6th, 7th, Sth, 9th, 10th, 11th, 12th, and 13th in- terrogatories were waived by consent of the said .Joseph Center and Hiram Gardner, and were not thereupon proposed to the witness. To the last interrogatory he says: Upon the morning of the de- struction of the Caroline, he thinks about 9 o'clock A. M., in com- pany with Mr. M. C. Migan, the Presbyterian minister of St. Thomas, I stopped at Lieutenant John Morrison's gate, in front of his house near Stamford, about three or four miles from Chippewa — and Mr. Morrison came down to his gate. I then and there had a conversa- tion with him for about five minutes. I do not remember any par- ticular subject of conversation, though I may have mentioned to him the destruction of the Caroline, but 1 could not swear that I did so. I only now remember the fact of having held a conversation with Mr. Morrison at that time. D. CAMERON. Sworn at the city of Toronto, in the Home District, this l6th day of September, 1841, before me, Adam Wilson, Commissioner. The Attorney General — I will also, if the Court please, read the indictment which is now pending in the county of Niagara, against several persons for the same offence as that with which the prisoner is charged. This is matter which does not go to the exclusion of their testimonj^, but I wish it to go to the Jury to affect their credit. Mr. Bradley — If the Court please, the indictment is an ex parte proceeding. Judge Gridley — My impression is that there is an express decision against its admissibility. Attorney General — I wish to show if your honor please, that they stood in the light of accomplices. Mr. Spencer — They prove that themselves. eadby his ! District, upwards, jndant in 's : [ited with resaid, in ,tion with two occa- lunicatiou Leod is !i e destrnc- month of n Chippe- arrived at »f the day id 13th in- Center and vitness. of the de- :., in com- Jt. Thomas. f his house — and Mr. L conversa- r any par- ined to him t I did so. )n with Mr. VIERON. 6th day of lissioner. read the ira, against le prisoner xclusion of heir credit, an ex partv ess decision >lease, that MCLEOD 6 TRI.\L. 2 If) It, Attorney General— Well then there cau be ao objection to my giving the best proof I can of it. Mr. Spencep. — Col. McNab was indicted too ; was he not ! Judge Giudlev — I think there is an express decision against addressing himself to Mr. Jenkins, do you recollect it 1 Mr. Jenkins responded, I must admit there is, but there is a con- trary English decision. Judge Gridlev — If there is an indictment, it is found on ex parte testimony, when the parties had no opportunity to cross-examine and confront the witnesses. Mr. Jenkins — That principle has been acted upon nor do I think it material in the present instance. The Attornev General — Well, then, I now propose to offer one of the depositions which the defendant has taken and returned here, but which he does not think it hnportant for him to read. I will now read it. Mr. Spencer — For what purpose 1 The Attorney General — It is the deposition of Russel Inglis ; and I read it to rebut the testimony which you have offered. Mr, Spencer — ^Perhaps you had better be a little more particular, Mr. Attorney General. Attorney General — This testimony conflicts with the testimony given on the part of the prisoner. I suppose no better reason can be given for its introduction^ JufGE Griuley — If it conflicts I do not see why it is not evidence. Mr. Spencer — If it is to impeach any of our witnesses it is. The Attorney General then read the deposition of Russell Inglis, bar-keeper at the North American Hotel, Toronto, Upper Canada, as follows : Russel Inglis, of the city of Toronto, in the Home District and Province of Canada, aged thirty-two years and upwards, being pro- duced, sworn and examined on behalf of the defendant, in the title of these depositions named, doth depose as follows, viz : To the first interrogatory, he says : I have known Alexander Mc- Leod from about the beginning of February, 183t). I am bar-keeper of the North American Hotel, and the reason of my being acquaint- ed with him is, that he was in the habit of residing at the hotel when in Toronto. His visits were very frequent. I believe that he is a Scotchman. To the 2d interrogatory, he says : I believe that it was on or about the 29th day of December, 1837. I never was at Chippewa, I was at Toronto at that time. The 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th and 13th di- rect interrogatories were waived by consent of the said Joseph Center and Hiram Gardner, and were not, therefore, proposed to the witness. To the last interrogatory, he says : I know that Alexander Mc- Leod arrived at the North American Hotel aforesaid, in the city of Toronto, on the evening of the 31st December, 1837, and put up there in company with Major Kingsmill, Robert Throop, Mr. Boswell, and a Mr. Gordon, and several others. He remained at the said ho- tel until Wednesday the 3d of January, 1838. •!, 1 0\ '' I * mk •216 GOULD S REPORTER. I The cross-interrogatorias were waived by consent of the respec- tive counsel, with the exception ol" the eleventh, which was put at the request of the defendant's counsel — tlie counsel for the people <»bjcctin? ; to which witness says : I was not at Davis's tavern at Chippewa at the time mentioned in tliis cross-interrogatory, nor have I ever been at Chippewa. I did not see him at or near Davis's tavern at that time, or at any other time. I was in Toronto during the whole time included in this cross- interrogatory, and Alexander McLeod was residing at the said North American Hotel on the Monday mentioned therein. The counsel for the people of the State of New York objected to this portion of the evidence as irresponsive. RUSSEL INGLIS. Sworn at the city of Toronto, in the Home District^, this 16th day of September, 1811, before us. The said witness having been rtrst sworn that the answers given by him to the interrogatories proposed to him, sho.ild be the truth, the whole truth, and noth- ing but the truth; and he having subscribed the same in our presence. Adam Wilson, ) ^ . . o D } Commissioners. Skcker Buough, ^ Rev. John J\Iarsh was then called and examined by the Attorney General — lam acquainted with Samuel Drown; I have been ac- ([uainted with him in Canada about four years ; since that we have lived at a distance apart ; I am a minister of the gospel ; of the Meth- odist Episcopal denomination ; I was intimately acquainted with Drown, during the time he resided in Canada ; I have never heard any thing against him; J. have no reason to believe that he is not worthy of credit under oath ; I lived at Chippewa during the whole time he did. Cross-examined by Mr. Spencer — I am intimately acquainted with Drown : 1 was not in habits of daily intercourse with him during the first year at St. Catherine's ; I was a local preacher at Chippewa dur- ing the four years ; Di-ovvn was in the employ of my brother Charles Marsh and myself, as baker, the greater part of the time ; the first year he was at St. Catherine's, driving team and doing such work as was necessary at a baking establishment ; my brother kept a temper- ance house one year, and had a livery stable ; Drown drove team part of the year ; falls and winters he was in our employ, and when we did not employ him, he attended to the lumbering business, taking care of saw logs for other people ; part of the time he worked for himself, getting out some barrel staves ; one summer he was in our employ ; he had the team and drove with passengers, and had a share in the profits ; I never heard any thing said one way or the other re- specting his character for truth ; I never heard it questioned. Piatt Smith examined by Mr. Hawley — I reside in Lockport ; I never lost my residence there ; in December, 1837, I resided in Can- ada ; I was in Canada then, at the mouth of the Chippewa creek, at Chippewa. MCLEOD S TRIAL. 217 lit :M e respec- iras put ut le people itioned in a. 1 did any other this cross- said North bjected to ^LIS. i ]6th day ving been rocratories , and noth- me in our ners. I Attorney ; been ac- Lt we have F the Meth- inted with ever heard he is not the whole linted with during the jpewa dur- ler Charles the first ch work as t a temper- rove team and when less, taking worked for was in our had a share le other re- led. ockport ; I ded in Can- a creek, at Mr. Spencer — What do you propose to prove by this witness 1 I object to cumulative testimony. Mr. Hawlev said he intended to prove the same facts which had been proved by Drown, to show that the evidence of McLeod having been at Morrison's was false. We bring this witness to show that McLeod was at Chippewa. If, in sustaining a witness, who has been attacked, it should incidentally happen to be cumulative evidence, it should not on that account be excluded. Judge Gridley — You are entitled to replicatory testimony ; if a witness is attacked, to sustain him. But the question is, whether you are entitled to sustain any witness by cumulative evidence. Mr. BttAOLEY— I have, in "evidence, a case in r)th Carrington and Payne, 299, 2ith vol. com. law reports, page 330 ; it was an indict- ment for robbery, the case for the prosecution had been closed, and che defence was an alibi. W. J. Alexander for the prosecution, wished to call a witness in reply, to prove that he saw the prisoner near the spot where the robbery was committed. The justice decid- ed that whatever is a confirmation of the original case, cannot be given as evidence in reply ; and the only evidence that can be receiv- ed, is that which goes to cut down the evidence on the part of the defence. The learned counsel referred to 22 Wendell, 22."). The authority of the case, as relating to criminal cases, was referred to by Mr. Justice Cowen in that case. There is another case — 1st Car- rington and Payne, 118 ; and also 2d Carrington and Payne, il.'). Tiie Attorney General — Your Honor will recollect that the charge in this case is that the prisoner killed Amos Durfee, in the county of Niagara and the State of New York. We have produced various witnesses to sustain that charge ; among others, one who swears that he heard him declare, in so many words, that he was the man who killed Amos Durfee. If, iffter having produced that wit- ness, we had rested there, and the prisoner had gone on to make out the case he has, by attempting to show that at that very time he was at Morrison's, in Canada, I would submit to the Court, if there is any part of the testimony we have given in chief, out of our liberality, which would not have been within the rule of rebutting evidence against his alibi. We have given very much testimony in the open- ing of the case, which was strictly rebutting testimony — for instance, two or three witnesses state they saw McLeod at Chippewa at that time. The whole point of this is derived from the testimony after- wards given. What is all this testimony given on the part of the State, but rebutting testimony 1 Now, because out of liberality we have gone so far, will the counsel for the prisoner insist that our lib- erality shall be turned against us 1 Above all things, in a case of this kind, when the great object in view is justice, and the public in- terest requires that nothing that is pertinent and proper to the case shall be excluded, material evidence of this kind should not be thrown out through mere technical forms. The witness now on the stand will testify to the character of Drown ; and his oath will di- rectly and positively sustain Drown. This is a case which, it seems, the learned counsel for the defendant have deliberately prepared for, as to their authorities ; I had not the least idea of it, and am not pre- 28 "l^ ■t' s> :A^:f ft ^if' 218 mcleod's trial. pared to look to authority on this point. We contend that the testi- mony we propose to offer, will coine fully and fairly within the defi- nition of rebutting testiin .my. What is the case referred to here ^ It Dears no analogy to this; it would, if we should go on and prove that McLeod was on the wharf at Schlosser — that would be testimony in chief; but the fact that he was at Davis's tavern — what connection would it have with the case, until the testimony of the defendant was first in ! When they go to establish the fact that he was at Morri- son's, we may bring witnesses to show that he was not there; and for this cause, if no other, that the witnesses who said that he was, are not to be believed ; it will then go to show a fact that is utterly irreconcileable with the truth of the testimony, thqy have brought here. Is there any evidence that can be produced that comes more strictly within the rule of rebutting testimony 1 They prove a col- lateral fact, which is inconsistent with the charge of the indictment, viz : they prove a second collateral fact, which is inconsistent with the collateral fact they first set up ; that is the whole force of it. By this witness we propose to show directly his knowledge of the witness on the part of the prisoner, and of the character of this Avit- ness. The question is made, to what extent we have a right to go"? I think, if your Honor please, that in any view of the case, the case cited here does not bear at all — there the prosecutor attempted to show the party present at the robbery ; that is a leading affirmative fact, but this which wo attempt to prove was not essential to our ori- ginal case at all. Mr. Jenkins. — There are certain rules laid down, which, as taken up, from some authorities guide us one way ; and from other author- ities, guide us the other way, but the principal rule is the rule of good sense. Thus, it is laid down in the note, that where a party calls on a witness, and proves a certain fact, necessary to his cause, and gives over the witness for cross-examination, if the party intro- ducing the witness desires then to proceed further to prove material facts, he has not the right, because he did not open that subject, at his first examination ; and yet, in the trial in this case, how often it has happened on the re- examination of a witness, that he has been permitted, without objection, to give further testimony ; and it is so, by the universal practice in this State, not to require parties to ad- here strictly to the rules laid down in the books. But to this case ; first we prove the fact, that there has been a murder committed — or we assume it for the purpose of this argu- ment — we prove that the defendant was engaged in this murder, and embarked in the boat ; now, how do we know what defence the de- fendant is going to set up 1 If we were bound by this rule in this case, we should have to be able to foresee the amount and strength of evidence he might produce, before we could rest our cause ; now is this to be required of any living man 1 All the pros- ecution is bound to make out is, a case charging on the defendant the crime which has been committed, and then we have a right to rest our cause, and if they introduce proof of the fact that he was in another place, manifestly we have the right to do it away by such evidence, that shows he was not at Morrison's at that time. We ness. %''^ MCLEOD S TRIAL. 219 the testi- the defi- here \ It )rovc that timony in onnection ndant was at Morri- iiere ; and t he was, is utterly 2 brought mes more 3ve a col- idictment, stent with )rce of it. Ige of the f this wit- ght to go \ ;, the case jmptcd to afRrmative to our ori- h, as taken ler author- he rule of are a party his cause, )arty intro- fe material subject, at ow often it fj has been .fid it is so, ties to ad- has been a this argu- fiurdtr, and nee che de- his rule in imount and rest our 11 the pros- defendant a right to ■t he was in ray by such time. We propose to show the fact that he was in another place ; are we bound to cumulate evidence to show the fact that he was not there, when no/i con^liit it may he denied tiiat he was not ihere at all \ Surely this is not consistent with any ground of reasoning or good sense. .ludgc Gridlky. — It would be satisfactory to me, to hear the note, read. Mr. HAWLEif then read at some lennfth from Cowan's and Hill's notes, citinff various cases: a strict uniformity at all times is not to be expecte(l, and indeed in some instances will prove injurious to justice ; much therefore is to be left to the sound judgment and pru- dence of the Judge. All testimony in chief or special, that which goes to affirmative matter should be produced as far as possible in opening the cause. In conducting the examination of a single wit- ness, we have a miniature course of the examination of a cause. The witness! is first examined by the party producing him ; after which the party opposite can examine ; and then the other party re- examine. On the primary examination of a witness you are bound on your peril to ask all material questions, and if you omit them, it can- not be done in reply. If a question has been omitted in chief exam- ination, the usual course is to ask the question to the Court. " It is discretionary with the Court, after charging a jury, on a witness's testimony, which is vaijue and indefinite, whether they will allow him to be called back/' 4th Wendell, 24.9, Law vs. Merrill, 268. *' Evidence should not be given by piece-meal generally, but some- times be left to the judgment and sound prudence of the Court, and a Court of Errors ought never to interfere except when injustice has been done by it." 1st Monroe, 117,118. "The general rule is ad- hered to with the greatest strictness in crii^inal cases." " Your evi- dence in reply must in direct and express terms, negative the pris- oner's proof." Various other cases were cited in the note, which then continued — " all this shows that the Court must have a discre- tion ; the English Courts have allowed exceptions to the rule, though with formality and caution." " In the Courts of Pennsylvania the counsel is allowed to ask any question, on any matter, in reply." " The omission or rejection of a witness after a case is closed, is a mere matter of discretion." ]Mr. Jenkixs. — I feel that it is preity well established in this Court, that it is a matter in the discretion of the Court, whether the testi- mony shall be introduced or not. The reason of this deviation from the strict rules as authorized in the note just read, I return to, and I repeat, how shall we know the nature of the evidence to be brought forward, or any thing pertaining to it 1 Is it possible that after we have examined a great number of witnesses to show that he was there, and left our cause without any sort of defect whatever, that we must gv forward and anticipate not only the defence to be set up, but the strength of it 1 It is utterly impossible. Mr. Spencer said in sustaining this objection we may properly ad- vert to the proceedings in this cause. We apprised the party of our objection before the people rested. If — Judge GuiDLEr said, I will relieve you. In looking at this I am satisfied, I have no doubt ; but ordinarily there is discretion left to ' . ffilH •If .tfi I 220 Gould's reporter. M i I .«; the Court ; in this note of Cowan's and Hill's, probably about all the r-ascs on this subject have been cited — the cases in England, in sevc- lal of the States, and among others, in Pennsylvania. In Pennsyl- vania the rule has been laid down in the utmost extent of liberality and indulgence, and ii is a decision from the courts of that State that testimony whicli is replicatory is admissible, although it be di- rect evidence to establish the original proposition. The decisions in that State arc more indulgent than those which arc found to have taken place in England, or in the United States courts, or in the courts of the other Slates. So far as I can see from the reading of this note, 1 have not a doubt but to a certain extent, in civil cases, it is a rule of discretion, as in cases of accident, the sudden illness of the witness, &c., that such cases do afford good reasons for an ex- ception to the general rule ; the ground is this, that the general rule is adhered to with the greatest strictness in criminal cases — that the proof which is to be admitted in reply, is to be strictly in reply, in opposition to being cumulative. After having considered this rule as applicable to civil cases, the following remarks are made ; the general rule is adhered to with the greatest strictness in criminal cases. [Judge Gvidley then referred to one of the cases just read ; he then continued]. Now in this case, the Court refused to admit the evidence, saying that it was such as would be proper to have originally been given ; therefore the case is an admission in favor of the rule, in this sense, that although the evidence offered in reply is in truth contradicto- ry to that of the defendant, yet if the evidence is proper to establish the main proposition originally to be established by the people — or the king in England — then it is inadmissible. The following civil case presents the same adherence to the rule : " Whatever is confirmation of the original case, cannot be given as evidence in reply ; and that which can be, is that which is reply, without being in confirmation of the original case." This accords with the other cases. Now to apply this case — it is said that the evidence given by the witness sought to be sustained was not in confirmation of the original case, but strictly in reply. If we look to the circumstances of this case, I think we shall see with entire clearness, that it is a portion of the evidence, necessary to establish the original case. The charge is the murder of Amos Durfee. In order to make out IMcLeod's connection with this transaction, no one swears that they saw him there. Appleby thought he saw him — but it was shown that the murder was committed by the crews of five boats, whicli made an attack on the Caroline ; and in the course of that attack, some person of the crews performed that deed. Ill order to show that McLeod was one of the party, evidence was given to show that the party embarked near the cut leading into Chippewa Creek. This witness Drown is called to prove that he saw McLeod disembark, and saw him at a tavern the next morning. Now then, this is material evidence, directly necessary to connect the prisoner with the traiisaction which originated the murder. It is, therefore, not only pertinent, but very material evidence, to show that McLeod was connected with the crime of murder. Now, in r 4 Mcleod's trial. 221 Hi It all the in sevc- Pennsyl- liberality lat State it be di- iecisions 1 to have ir in the eading of cases, it illness of 'or an ex- neral rule -that the , reply, in 1 this rule nade ; the 1 criminal ust read ; ce, saying en given ; this sense, intradicto- ) establish leoplc — or wing civil t be given h is reply, is accords id that the vas not in If we look ith entire establish irfee. ransaction, rht he saw r the crews ind in the 1 that deed, idence ^vas lading into ove that he a morning. to connect nurder. It ce, to show Now, in order to show that ho is guiltless of the crime of murder, he intro- duces an n ibi. The prosecution brouglu forward the testimony of Drown conlradicting this, and now propose to rebut that evidence by the additional evidence of Smitli. Now, it seems to me tiiat if tl|p evidence is in confirmation of the original case, although if would go to contradict the witnesses who have testified that McLeod was at Chippewa at the time, yet it will be direct evidence : and if evidence were produced to show that McLeod fired the fatal gun, it would be equally evidence that McLeod was there ; it would be ex- press, positive evidence of the guilt of McLeod, and as such, would be inadmissible. With respect to the discretion — Mr. Je.nki.ns — Allow me to cite the authority of the case of the People vs. Mather. That was a criminal case, and the court allowed a witness to be re-called and re-examined by the same party on mat- ters on which he had been before examined ; and the Supreme Court held that it was discretionary. This shows that the discretionary power is appiicublo to criminal cases, because this was an indict- ment against Mather for murder. Judge Gridlev — In that case the witness was the same person who had been introduced before ; the opposite party might have had an opportunity to introduce witnesses to show that he was a man luiwortby of credit. In this case, I remark, there are none of the circumstances to justify it, if it were true that tliero existed a discre- tion, in criminal and capital cases, in relation to opening branches of the defence not before opened. It seems to me, therefore, that if I ascertain what the rule is,, which Cowan doclaves is adhered to with the greatest '^irictness in criminal cases, and which is proved to be the rule in adjudged cases, that 1 am bound to regard it ; if it is to be regarded at any time, it should be in criminal cases. This is my opinion, and I so adjudge. The Attornkv Ge.neual — The rule, as laid down by the court does not apply to the evidence we propose to offer. I have this to remark, that the discretion vested in the court is properly to avoid anytiiing like unfairness or surprise ; but in a case where the court is satisfied that there has been no disposition to entrap the party, if would seem to me that the discretion of the court to exclude from the jury the light of important testimony, is settled in a case ex rig- ore. We are by this rule, taken entirely by surprise, in testimony which is material ; as bearing on the case attempted to be set up by tiie defendant — not only material, but vital. On that point, what- ever may be the case in court, it will not be satisfactory as to th" innocence of the prisoner, unless this testinmny is allowed. Smith was an employer of Drown, who knows bis character and can testify of it. That is of all men in the w^orld, the proper man, to call, to strengthen and corroborate the witness, who is a vital witness. If ever, therefore, there was a witness who was a rebutting witness, or one who could sustain an impeached witness, it is Smith, who will sustain th3 testimony of Drown. It is not cumulative evidence ; all we ask is, that we may be allow-ed to show that the testimony of Drown is true ; it is not to go over the same story, by any means, but to sustain the evidence of Drown. We also propose to show. -. .1 m <- I '222 fiOULo's REPORTER. ii ^f^i by thosR who emjiloyptl him, the reputation and the chnrncter of the witness. In any point of view, I cannot conceive that this witness is not nnost strictly within the rules of evidence, if, in this vital case, they are to he strictly applied; most assuredly, had I not supposed that this would have been within the rule, I should have broutjht it forward previously ; I would ask of the court to exercise the dis- iTetion in this case, cautiously, and with reference to this witness, I ask the court to allow nic to examine him, us a witness to sustain Drown. Mr. Jknkins. — .We ofTer to show that the prisoner was not at Mr. Morrison's, by showinnf that he was at Chippewa the 29th of De- cember, at nif^ht, and was there the next morninjr, and also the iden- tical time when the Caroline was burned, that is when they were embarkinfj and debarkinfr ; and that lie was at Chippewa on the morning afterwards, before simrise, and from that time to 10 o'clock. 1 wish to put that as a distinct offer, and I apprehend it does not come within the rule, so as to be excluded. .fudge GiUDLEV. — I have a single remark to make, not assigning any further reason for the decision made ; but in relation to the judgment made, I am sorry to hear an argument suggested, on the part of the Attorney General, that the decision will not be satisfac- tory to the public. The AxTORNKy Gunhral. — If the court refers to my remarks, I beg to say I did not intend anything of that kind. Judge Gridley. — Sitting here, as I do, independent of all public opinion, on a question of law, as I regard it conscientiously, I can entertain no anxiety whatever as to whether the deci-iou will address itself to the feelings, good or ill, of others. I havt: in this very cause excluded from those depositions every portion which was not responsive. Because I felt myself rigidly bound to decide according to my own notion of law. 1 felt that I had no right in a capital case to enlarge the rules of evidence, but was bqund to follow them, as they existed. I mean this decision to stand, to exclude the evidence offered, but not in any way to exclude testimony which may be adduced in support of Drown, who may have been impeached. The Attorney General then proceeded to examine the witness. Plait Smith, examined by the Attorney General. — I am ac- quainted with Samuel Drown ; I have known him about a year ; he was employed by my brother, who kept a tavern ; I boarded there ; I was woke up on the night the Caroline was destroyed. Mr. Spencer. — What do you propose to prove ^. Attorney General. — The character of Drown, and also to sustain his testimony. Judge Gridley. — Howl Attorney General. — Mr. Drown has here made a statement, and I wish to show that he had before made the same statement to the witness. Mr. Spencer. — That has been overruled. The learned gentleman cited 23 Wendell, p. 50, to show that evidence to corroborate the testimony of a former witness in this way was inadmissible. There were, however, special circumstances under which it might be done, as wl was 1 I'iVide was a the MK The witnos Drown and pli cumstfl some r port ai portion t'/fer tc Jiidg fo be ii Judg >>n a fo: Siiprem lu ai'C( !:uv, as would i cases. dence n The I. to show attacked he (the \ line was that wit into the ran forw on and f until the with the roborate: Judge the case strike mt The A here shoi cept wha down tog together- JUDGE ( that this portions ( he knew His (Jt verned by Mr. Br MCLEOD s TItML. 223 ■r of the wilncHS lal case, upposed ouafliLit the (lis- ilnt'ss, I [> sustain 3t iit Mr. Ii of De- the iden- iiey were a on the ) o'clock, does not assigninfT m to the d, on the e satisfac- emarks, I all public sly, I can i.-.iou will vt: in this ion which to decide right in a to follow cclude the vhich may eached. witness. -I am ac- year ; he led there ; } to sustam ement, and lent to the gentleman borate the le. There It be done. as where the dmrgo was iniulo that thr statement of the witness was colored, and lliat motive existed for coloring the testimony. Evidence might be given to show this if charged that his evidence was a fabrication of a late date, that he had told a similar story when tlie motive to distort his evidence did not exist. The ArroiiNKV CiKM".it,\i. replied. — lie wislie 1 to prove by this witness, that certain things stated in court by Drown were true. Drown had stated that this witness was with him at certain periods and places, and the Attorney General wished to prove that those cir- cumstances were true by other testimony, Drown having been in some respects impeached. This testimony was offered to give sup- port and credence to Drown's entire statement, by showing that a portion of what he had said was true. He said he should afterwards offer to prove Drown's declarations. Judge Gkiulrv asked the opinion of Judge Denio, who happened to be ii< court as a spectator, on this point. Judge Dc/iio said that he had his attention called to this question 1)11 a former occasion ; that he was the referee whose judgement the Supreme Court had set a>idc. The fads in that case Avcre those of :ui accomplice called on the part of the prosecution ; and yet the l;iw, as laid down by the Chief Justice, was exceedingly broad, and would admit the testimony now otfered ; it seemed to cover all cases. But under the present circumstances he thought the evi- dence now offered was inadmissable. The Attokxey, fiENnuAL said that testimony having been offered to show that Drown was unworthy of belief, his whole evidence was attacked. He now proposed to prove by the witness called, that he (the witness) was awakened by Drown, who told him that the Caro- line was on fire — that Drown proposed to go up to the beacon light ; that witness got up and went with Drown ; that they went down into the road together ; that they saw boats coming in ; that Drown ran forward of him to see who were in the boats ; that Drown ran on and fell in with the party ; that Smith continued on his course until their paths again came together ; they then walked together with the party, which evidence most materially strengthens and cor- roborates the testimony of Drown. Judge Demo. — If this testimony would have been immaterial in the case, except as connected with what was material, it does not strike me how it is now admissible. The Attorney General — If we can produce a witness who will here show the correctness of all which has been stated by Drown, ex- cept what was seen by the eyes of that witness alone — that they went down together — that they came up together— that they were there together — Judge Gridley interrupted the Attorney General by remarking that this evidence, if admitted, would also goto strengthen the other portions of the former witness's testimony in which he declared that he knew nothing which would materially affect the case. His (Judge Gridley's) opinion was, that this case should be go- verned by the rules laid down in the 12th Wendell. Mr. Bradley said, Mr. Bates, the witness, was not called to prove Tli .. >I "I »' * '.fll )-;;,. 12'V (iOVLD h REl'OKTER. that Drown wns unworthy of hpliof, hut hiitiply ns to dot-hirntion^ wliich hu liad iiiiidu on (mother oucasion, to show thut they di(- fored. Judjro f'liiiii.r.v thonij^ht proof couhl not ho pfiviMi to show thnt ,t witMJ's-* h:id ti»|f| the sunit! story elsewhere. It 1111181 he taken on iht- Holcinnity of Win own oath. The ArruitNKv (iKNKiiAi, said lio was unahle to perceive why thi>. ease did not eoine within the cxeepticni in '2!M Wendell, since it ha> been insinnated, by the Counsel for the prisoner, that the witness Drown, was impelled hy a slronir desire to eorivict the prisoner, and now it is od'ered to show the declarations of the witness. Drown, h( • r>ro Huch a state of thing's could have existed. lie did think that he had a rijrht to do so, and that it would throw li^Jflit upon the case. At the siipriifestion of the Court the decision in 2.'3d Wendell, p. ;')(•, was then read and commented upon by the Court. '• Proof of (led, u'ations made by witnesses out of Court, in corro- boration of testimony jrivcn by him on the trial of a cause, is a- a (jeneral, and almost iiiiiversal rule, in'idmissiljfc. It seems however that to this rule llierc arc exceptions, and that under special circumstances such proof will be received : as where the witness is charpred with giving his teslimi»ny under tlic influence of some motive prompting him to make a false or eolov^d statcmeii!. a may be shown that he made similar declarations at a time when the imputed motive did not exist. .So in contradiction of evidence t<'nding to show that the account of the Iransaclion given by the wit ness, is a fabrication of lute, ilittc, it may he shown that the same ac- count was given by him before its nliimatc effect and operation ariv- ing from a change of circumstarwres could have betM foreseen." '• When a witness is contradicted his testimony may, of course, he fortified by proving the same facts by others. If his character fi»r trntli is attacked, it may be supported by proving it good ; and ii evidenf^e is given that the witness has made declarations out of Couri iuconsistant with his testimony, it may be shown that'those declara tions were made under such circumstances as not to detract from liis credibility. If an attempt is made t() discredit the witness on the frround that his testimony is given under the influence of some motive prompting him to make a false and colored statement, the party calling him has been allowed to show, in reply, that the wit- ness made similar declarations at a time when the imputed motive did not exist. But as a general, and almost universal rule, evidence of what the wimes^s has said out of Court, cannot be received to fortify his testi- mony. It violates a first principle in the law of evidence, to allow ii party to be affected, either in his person or his property, by the de- clarations of a witness made without oath. And besides, it can he no confirmation of what the witness has said on oath, to show tlr.it he has made similar declarations when under no such solemn obli- gation to speak the truth. It is no answer to say that such evidence will not be likely to gain credit, and consequently will do no harm. Evidence should never be given to a jury which they are not at lib- erty to believe. it is s/)en'ii/ of rvi( laff dm llio sai tion art The the pro Itself, t Itft had MOt be I •ommit ('ourt t^ Judg( saying •< that he wa, and that he would s Phn I never boats as saw thre fell shori five. Pf on the bj the bea( gave t pass by resident the coui don't ki Judge rule to Exaini Attoim knew, Stanfort Mr. The A trial a ri manifest( would at TheC, going to and not the quest any othe if not yoi Mn.llfH) fl TRIAL. 2M i'Iiiration> thoy dil- w tint ;i ;cn on till' why till'- nco it l>:i~ c \vitnps»«. sonor, aiiti >ro\vi>, Im • ik that Ik (' case, lell, p. ')<>. , ill covrci- Aisf, is a- nnd tliat us wllCMT D infliicnci statcniPiH. liino wlieii f cvidoiiC' by the \vi' > snme ac ■ration ari-- seen. ■ courso, he laractor for )()cl ; and ii lit of Cour; )se dcclara- etract from witness on CO of some itemcnt, tlie hat the wit- ited motive of what the ify his testi- er to allow a -. by the do ;s, it can he to show tlia' solemn obli- ich evidence do no harm, •e not at lib- it in also iiprret'd by Mr. Stnrki* tl.iit such evidence nuiy, Kmlir iiil rirruifistdnrrs he admit I e spfii IIS lor instance, in contiiidicl ion of evidence teiidinpT to show tlia« tlie nceoiiiil was ii fabrication of htf ilntp, ntid where conse(|iieiirly it brcoincs material to hIiow ihnt the siiiiie aceoiint has been ''ivcri, /iij'orc ifs I'/ltimnfr ilj'erf a/iil ojieni- tion arisiiii^ J'rum n vlntn^i' of ini "'Pstnnrr.< nu/id hnvf lirtn forisiin. The Attoii.ney GK\i;K.vr< said tl,;it he oO'ered to show that before the prosecution of the prisoiHT loul immediately after the triiii^iaction itself, the witness, l)i(»wn, Iml made stutements similar to those which I.e had now made before this jury, and asked the Court if he niiLrht not be permitted to introilnre smli evidence. Are we secKitiir to •ominit a felony that we are thus headed and pursued ! 1 ask the I'oiirt to protect me. .Ind^rc (IicDi.Kv. — 'I'lie ('ourt will protect yon. If I am riii-lit in sayin? when yon have irivcii allirmative evidc'iice a-rainst MeLijoil, that he was seen loiin)ome were comiiifr from the villaixe to the beacon li^ht, and some were rcturniii!? to the villaflfe. Some gave the countersin^n, and some did not. Citizens were allowed to pass by the jruard. They were hailed, and if they said they we'e residents of the place they were allowed to pass. I believe I heard the countersifTR, but I think 1 had forgotten it before I trot there. I don't know how I passed. Judge (jRiDLEY said JVIr. Sears only stated that it was the general rule to demand the countersign. Examination continued. — This occurred about one o'clock. Attoiiney General. — Can you say whether, from any thing you knew, Alexander McLeod could not have been at Mr. Morrison's, at Stanford, between 1 and 2 o'clock that m. ruing I Mr. Spencer objected. The Attorney General was astonished that at that stage of the trial a rigorous rule was insisted on after such a liberality had been manifested all along in favor of the priscmer. He trusted the Court would at once decide that the question was proper. The Court had already excluded on suificicnt grounds, questions going to elicit the answer now sought ; this evidence was in chief and not in reply, and of course inadmissible. The Court then put the question thus — If you can state that McLeod was not there from any other reason than that he was at Chippewa, yon may answer — if not you cannot answer. The Court then adjourned for dinner. 29 \ .< \ '" ♦ w 226 GOULD S REPORTER. TRIAL RESUMED. Saturday, 2 o'clock, P. M. The examination of Piatt Smith was continued by the Attonev General who asked the witness if any delay had occurred at the dis- embarkation ! Mr. Spencer objected. The Attorney General. — I only intended impeaching the evidence of Sears. Mr. Spkncer. — Go on then. Witn'jss. — There was a delay only of a very few minutes — I after- wards fell in with this party ; they stopped at Davis's house, and some one asked if they should wait for the others ; they did not wait ; whilst witness was there the party from the other boats did not come "P; The Attorney General then desired to ascertain from the wit- ness where the prisoner was in the evening. i\lr. Spencer. — Where do you propose to show he wasl Attorney General. — At Chippewa. The Court.— When ^ Attorney General. — At sunset ; it is not at all cumulative evi- dence. The Court. — It is still evidence of the same description, connect- ing the prisoner with the transaction. The Attorney General. — Not independently of the other evi- dence. The Court decided the evidence was inadmissible. The rule was laid down in a late case at Nisi Prius, Littledale Judge, the decision in which case the court then read. The Attorney General then proposed to ask the witness : Do you know any place where McLeod was not between 1 and 8 o'clock on the morning of the 30th Dec. 1837 } The Court remarked that that was substantially the. same question as before, and therefore inadmissible. The Attorney General then proposed to ask : Do you know that McLeod was not at Morrison's at 8 o'clock on the morning after the destruction of the Caroline 1 The Court observed that as the fact intended to be elicited came within the rule, it was not to be got at, in any such ingenious way as that. The Attorney General would then ask : Did you see the prisoner as late as 10 o'clock at Chippewa or any other place 1 The Court decided that this question might be put, as none of the evidence fixed the time of McLeod's arrival at Chippewa, nor where he was at 10 o'clock. The witness then replied that he did, about 10 o'clock, see Mc- Leod go frem Davis's across the bridge down the Chippewa ; there might have been one person with McLeod ; he was going from the quarters of Col. McNab ; saw him on the Sunday following ; then saw him very near the guard-house, three-quarters of a mile above ; it was about 11 o'clock — did not know who they were with McLeod ; cannot Leod a it was I horse. Cros< lost m^ ]S3u-7 Canada and can two we( iind was liis depi it was t] ed, I fix triot bus when I E 30th De( cause th was not! Jo/in i Chippew when thi home ; r the bar ; Exami am the h, was burn The A' for th ^ pi The e: about 12 boats app returned ed before room at n officers n mess rooi persons s sions; I voices in several ; not say, t'\ talking th The At the voice did not se others, w( ken that t Did no There was , p. M. Attoney t the dis- cvidence } — I after- and some not wait ; not come a the wit- lative evi- 1, connect- other evi- le rule was le decision ess : en 1 and 8 le question o'clock on cited came ous way as ewa or any none of the nor where pk, see Mc- ewa ; there ig from the wing ; then nile above ; ^ McLeod ; II h MCLE )D S TRIAL. 227 did not recollect seeinor Mc- s spolcen of as being McNab ; he rode upon a whito cannot say whether it was Gilkinso Leod after that ; one of the persons was spoii it was not him ; it was a stranger to witness horse. Cross-examined by ?ilr. Spenckh. — I now live at Lockport ; I never lost my residence there, lliough I v/as in business in Canada in lS3i)-7 ; during those ye;irs I often saw .McLeod; while I was in Canada I soM a draft for 8500 to a man in Albany ; it was protested and came back; 1 was arrested and iiuprisoned, but it was paid in two weeks after, and 1 was released ; 1 was taken for that to Niagara, and was pnt into jail, but not by 3,IcLeod, it might have been one of his deputies ; that deputy might have been his brother ; I don't tliink it was the prisoner; when 1 saw McLeod on the day I have mention- ed, I fix the time as after breakfast ; 1 had taken no part in tiie Pa- triot business, nor in any secret society ; was in my brother's store when I saw McLeod at the bridge ; it was on the morning of the 30th Dec. 1837 ; it was on Saturday ; know it \vas on Saturday, be- cause the boat was burnt on Friday, and this was the d?^'' after j it was nothing uncommon for me to meet McLeod. Jo/m C. Davis was then sworn, and deposed that he resides at Chippewa; is the proprietor of " Davis's Tavern" house ; was there when the Caroline was burnt; recollects tiiat time; was then at home ; recollects distinctly the transaction ; knows tlie prisoner ai the bar ; he usually stopped at witness's house when in Chippewa. Examined by the Attop.^-ey General. — I reside at Chippewa, and am the bar keeper of Davis's tavern ; I was there when the Caroline was burned ; I know the prisoner; he usually stopped at my tavern. The Attorney General repeated the questions before overruled, for th ■• purpose of having a note taken of them. The examination was then resumed. I retired to bed that night about 12 or 1 o'clock ; I w is at the mouth of the creek when the boats approached tlie shore ; the men commenced hurraing and 1 returned home before they had all landed; I cannot say I had retir- ed before the party came to my house ; 1 did not go into the bar room at all that night after the expedition ; quite a number of the officers messed at my house ; my bed room is separated from their mess room only by a tiiin partition of lath and plaster ; I can hear persons speaking from one room into the other on particular occa- sions; I have heard it repeatedly; I imagine 1 might have iieard voices in that room that ni:,ht ; 1 had an idea I knew the voices of several ; there was a good deal of loud talking that night ; I could not say, from the language I heard there that night, that the persons talking there had been of the party. The Attorney General then asked the witness if he did not hear the voice of McLeod in that mess room, and afterwards, whether he did not see McLeod the next morning. These questions, like the others, were put to save the right of parties, and to have a note ta- ken that they had been offered. Did not see any of the party that night drinking except one. There was a bed took out of his house that night, and there was some $ r M : Hi" ,■* ■ •'is,,.. 288 GOULD S REPORTER. [it talk about that. Waked about sunrise. Before he got out of bed saw some person. The Attounky Genkral. Who 1 Mr. Spenckii objected. The Court overruled the question upon the reasons already stated. Attorney General — Do you know Mr. Park 1 Mr. Spencer objected to the question. Attroney General — Did you see McLeod the day before the destruction of the Caroline 1 Mr. Spencer objected. The C) ''^T admitted tlie question. Witness ■?he prisoiiev went to bed in my house that afternoon ; he got up in the evening ; saw him about eight or nine o'clock ; he ordered his horse then, and said he was going to Niagara. A gen- tleman came in and asked for him afterwards; it was not Mr. Press. P/iilo Smith was then called and sworn. — He deposed that he resided at Chippewa when , the Caroline w.is burnt ; recollects the occurrence. Was there part of the next day. Was there about eight o'clock next day. Knew McLeod well. Mr. Spencer — What do you propose to do ? Mr. Jenkins Does that come within the rule % The Court. Yes. Mr. Jenkins continued. Are you acquainted with Samuel Drown \ Yes. What's his character for veracity ! Never have heard it ques- tioned. Mr. Spencer. Did Drown run away \ Well — no I believe not. How did he get away ] Oh, on account of some mob or other. Do you belong to a secret lodge I or ever did \ Well, I once attended one, two years ago. Mr. Spencer. That's all, sir. By the Attorney General. Drown was bar-keeper for me. There was some censure thrown upon him for striking some one. The soldiers came upon him, and he had to escape for his safety. James M. Dyke, examined by the Attorney General. Reside at Niagara Falls, on the American side. I am acquainted with the prisoner. I saw him on the morning after the patriots left the Island at Stanford. The Court did not see how the Attorney General could go on to contradict the statements of the witness, which he (the Attorney General) had himself introduced. Cross-examined by Mr. Spencer. Went to the Falls of Niagara the morning after the destruction of the Caroline. Went to the Falls the day before, and was there the night the boat was burnt. Had once said he met McLeod going to thr Falls. Was mistaken in that, but would have sworn to it then. Would not swear to it now, the circumstance of recollecting his having seen a flag raised on Navy Island enabled him to correct his mistake. Timothy Wheaton sworn. Examined by Mr. Haavley. The coun- sel for the prisoner stated his objection to this evidence, inasmuch as he was one of the witnesses called before the prosecution rested agara. MCLEOD'S TRIAL. 229 and did not appear, and there was no provision that his testimony should be admitted at any subsequent period of the trial. The witness deposed that he resided in Canada in IS.'JS. Lives now in Chemung county. Left Canada in the fall of 1838, Recollects beinsr then in the town of Niagara. Was in Niagara the last of October, or the first of November, 1838. Saw the prisoner there. Conversed with him. Was standing near the ferry. Passed the time of day with McLeod, and said that " the poor fellows, (moaning the sentinels) had a hard time of it." Conversed about the dillicultics in Canada before that, and then asked him iiow many had boon killed on the Canada shore, by the Navy Islanders \ Ho replied two, if witness rightly remembered. He said they never would have the Caroline to assist them again, if they got on to the Island. Witness then said he understood she had been destroyed, and the prisoner said she had. He, the prisoner, said he was the second or third man that boarded her. He was going on to say, that he came near being killed. Then some one came up, and said, " McLeod, come here for a moment." And McLeod, witness thiidis, said, " Hold on a moment, Herron !" That's all the conversation witness had with McLeod, for he started off then. Witness had never seen McLeod before. Lived then at Whitby*, about, sixty-five miles from Ni- agara. Cross-examined by Mr. Spencer. Knew it was McLeod, because the other man called him McLeod. He said, "cOme here a minute, I want to speak to you." Didn't hear any thing more said. Didn't see McLeod after that till he saw him here on trial. Recognizes McLeod now. He looks some paler than he did. Witness came here because he was subpn;naed about the 22d of last month. Did not know who subpojnaed him. Understood the man was from Elmira. Don't know how he learned that vitness knew any thing about it. Wrote a letter, either to William Lyon Mackenzie, or John MontgOTuery, about what he knew. Montgomery lives at Rochester. This was about a year ago. Witness then lived in Chemung county. Don't recollect, particularly, what he wrote. Has forgotten it. Witness read in the papers, that such a man was taken. Wrote to Mackenzie because he had acquaintance with him. First saw him in Toronto. Witness belongs to one of the patriot lodges. Joined in the fall of '38. Couldn't tell the time precisely. It was in Canada. Before he had the interview with McLeod, some of the witness's acquaint- ance had been taken up for stealing harness. Has had some inter- course with members of patriot lodges. Couldn't describe the ferry. No one was present at the conversation witness had with McLeod. Herron was a pretty good sized man. Is not sure he could recog- nize him. It was about twenty rods from the ferry to Niagara. Mr. SpenCer. I believe it is nearly a mile. You may go, sir. Wm. Dejield, examined by the Attorney General — I reside at Queenston, District of Niagara, Upper Canada. I know Mr. and Mrs. Morrison. I have not been at their house more than three times. I saw Mr. Morrison on this side, at Lewiston, in November, 184)0. I • ,.^.' '^^^J: .M I (I 'I'S m i:-'-': 1. " M H . III] 230 GOULD S REPORTER. I had then some conversation with him, he siiid to me in convcrsii- lion at his own house lliat he hoped the American authorities would ^et hold of -Mr. McLeod, and punish him fur his participation in the burnin■ f'U* .:;^i i] . \< 236 GOULD S REPORTKR. Throiiijli Schlossrr {\\p irifluonco of all tliis was to be carried into Ca- nadii. Navy island once occupied, the next slcip was to form a provisional government,' tin; olijcc't licing not an inimediulcMlescent, but to orffam/.e, to fortify tlie post, ejitablisli liead-(iuartera, to give tbe revolutionary ban- ner a ebanee at tlie sini, and tben t(» await tbe expeeted uprising wbieb it was tbe sole purpose; of tlu; movement to create and sustain, (len- tiemen, I warn you against tbe (.-rror to wbicb all men in contemplating past events an; exposed. Time, it is true, has cleared tbo atmospbere ; things have sine*; taken their proper si/e and color. In the distin- guishi'd bead of this frail sister of nations, wo now behold only a par- doned convict ; and in bis military chief — a convict also, pardoned or otherwise — nothing else hut a name, another has m.tde illustrious by a gallant adventure on Canadian soil ; and, with somi! few excep. tions, in the men who swelled their ranks, nothing but the collected idle- ness, vice, and profligacy of the border — kindly named by the Attorney- General "the more n ckless of our young men" — men whom nothinii good could rally, nothing bad disperse. Such, after four years of sun- light on their character, we behold llumi now : not such were they then beheld. Bad, indeed, they were known to be ; but this knowledge only deepened the terror their projects bad created. If, even when guided by the wisdom and purified by the virtues of Washington, aided by the self- restraint of a whole land, our revolution was traced in blood and ruin, what must have heen a war in Canada, conducted by such leaders, backed by such a soldiery ? Gentlemen, standing here on this solemn occasion, speaking to interests which touch this country, not only, but reach beyond the Atlantic, and ac- countable for what I utter, not to man, but to Him alone whose jus- tice we arc attempting to administer, I am not at liberty to employ other than tbe language of truth. I say, then, that in a country which has Plattsburgb and New Orleans on its map, none can say, none shall dare say, that resistance to invasion, of whatever kind, incited by whatever motive, is aught but tbe highest virtue. To come to the rescue, to meet the fuc on the beach, and to keep the soil stainless of hostile tread, is a holy call uttered in all lands and pealing to all hearts, and loudest to the noblc^st. At this call came forth those assembled at Chippewa ; and such as in like circumstances we should have gone — such they came. N(5t the squadron, well-equipped and trained to the field ; not the close column, stout as rock to the assault, and though liable to fall, yet falling where they met the foe, sure to remain a rampart still. Such were not at hand ; but men, stepping out of the common walks of life, on business which, as the evidence has so often told you, brought all other business to a pause. The artisan from the shop, the merchant from tbe store, the sheriff quitting his writs, and the legislator the council-chamber, all undiscip- lined, but all true, each, like Young Gilkinson, seeking some, but as yet unknowing what, way to make his right arm felt in the general cause. Thousands of such, twenty-seven years ago, were seen rushing along the Green Hills of Vermont, soon to return chagrined and mortified that the foe was already routed, they having no chance in the fight, no share in the glory. But mark the contrast ! those boys of the mountain, in their march to the field, left behind a people of steadfast faith : no danger that the foe in front would be aided by a deadlier foe in the rear. In that direction all was MCLKOD S TKIAL. 237 i\'. (1 into Ca- provisionul > organize, annry ban- ig wliich it ill. (Ion- itcmplnting inosplicrc ; the distin- )u\y a par- , parduiujil illustrious 'OW f'XOf'p- Ik'ctcd idlc- 3 Attorney- jm nothinc ars of sun- 3 tlicy tlien vlcdge only n guided by by the sclt- d ruin, what , backed by to interests itic, and ac- whose jus- tnploy other which has shall dare y whatever ;ue, to meet tread, is a udest to the ; and such e. Not the ose column, dling where lot at band ; ss which, as to a pause. the sheritr ill undiscip- '; but as yet neral cause, ig along the fied that the no share in march to the foe in front tion all was srife. Not so in (.'aiinda. It is the curse of ci\il strifi', that none know in whom to confule. All hearts boconie baiuits of su,s|iici()n and dnad. Ilo who suiiles wilh you now, may, iiii luur lunci', be your assassin. ,ll(! who yi'sterday partook of the hospitality of ymir board, may, I(j.nigiit, riot in the (Irstruction of your ilwelling. Such was the stah; ol" socii^ly thesu lucn left b ■hind. Fiom Navy Island bad goni; forth a proclamation, invoking re volt, oiitjring a reward I'or liic goviriior's lead, and |)r()mising, as a stimu- lus to treason, a distribution of the j)ul)lic domuiii. Such wcie the incnte- nicnts to ri'volt ; and it might ciimc, conic any moment, but come only to bo marked by desolation and crushed in blood. 'I'lic island, though far from imj)rcgiial)K', was yet dillicult to assail, standing in a current of six miles an iiour, guarded by twelve cannon, occupied by a force of Iiundreds and supported from the United States in the rear, with all that private contribution and |)lunder from thi; public could furnish. A regular siege was therefore begun, and pressed with sucli energy and skill as were at command. Cut off from the Canadian main, the whole strength of the post lay in the passage to the American shore. While that was open, the island was invincible by its undi.sci. l)lined enemy; the moment it was closed, dispersion or starvation be- came inevitable. Hither, then, all attention was directed ; and tin; Caro- line appeared, not on a transient call, but for permanent employment, after negotiation and with a definite object. I know that Wells has souglit to give this adventure the character of a private enterprise, undertaken for mere gain. Be it so. The danger arising from it to the Canadians was tlie same as if the vessel bad been owned'by the islanders. All lltcy could have used her for had been to convey to them arms, and provisions, and munitions of war, and fresh accessions of strength. And all this she per- formed. VVHiether owned by Wells or Van Rensselaer, was all the same. She took the character of the enterprise she aided. For, "if 1 lay siege to a place," says Vattel, 53:39, " I have a right to tukat as knk.mies all who atti'mpt to enter it, or carry any thing to the besieged without my leave." Wells, then, and his vessel and her crew, were to be treated as enemies, embarked in one and the same cause with V^an Rensselaer, taking the same risks, assuming the same responsibilities, and exposed to the same retri- butions. A private, enterprise ! What but such was that of any man on the island ? By what public authority were Ihcy acting ? Under that of the United States ? — that gathering was hostile ; we at peace. Under that of Canada ? — but she was resisting them as bandits, rebels, pirates. What was Van Rensselaer's but a private enterprise ? what George Howel's ? what Sutherland's ? what any man's ? What was the whole undertaking but a combination of private enterprises, acknowledged by no government, sanctioned by no law ? A partnership of individuals, each contributing something to the capital stock, to be recompensed by an equivalent in the dividends. Howel giving his militia colonel's commission for a regiment; Sutherland his lawyer's profession, such as it was, for a brigade ; Van Rensselaer, his uncle's name for the chief command ; and Wells, his steamboat for passengers' fare ! — each promoting the common object for private ends, some seeking profit, some honor, but all impatient for the dawn of that auspicious morn when they should no longer bo pcnsioi^ers on the bounty of the American border, but be transferred to the Canadian main, there to subsist on — what? Without property, without supplies, k I! ■' p *J38 » GOULD S RKPOHTRR. Iiiiving no tirnsury, no credit, no rlothin;^ {\>v n wiiitrr cnrnpnitin, on what cnii/il they siilisist .' Iiow l)i' lid, how rhu\, liow paid, Init liy pluudt'r and rapine f •llow be slieltered, hilt liy rjecMintr I'i'oiii liieir dsvelhii^s the inhii- hilants in niid-wintir ? Mcsides tlnsi', thy the people invuded, hut dealli by cold, deulh by hunger, awaited thorn. Such is till' cause which the Attorney-( leneral has soiir ; witli- L)|il, d( atli lipiiity l»y time lifts iVoiititr^. with wi a- Sllijircst tn riiitt; limn iii'niiis of incii, it is 111 nut; is — c.ilii Iv on ■iUioii, ami surface of •Mtt' IIS not ij^lit in ovn- worgliulr ? curefring I tllHl tllOSl-' Tlu> ciirlli (' flan' np- [ilM wl\(. I cauic tliis , ami all I pray that, o tills higii jnry, hold- \ml against n-lief under d to do so ; n<"niy tliey in et it is the least of our ea.su. Still little us il is, il wholly reptd.^ the pos- lihility ol' guilt. FJul the prosecutors themselves have thrown their own case into douht. Why did the prisoner, on rpiittini; Mavis's, lefwe word for his brother that lie had gone to NiiKjara ! \\ lial could have hi in the motive ? riKjues. tioiiahly, not concealment; forif thc're he no mistake;, no talsehood. in the proof against him, he went openly with the crowd which assembled to see the expedition embark; nay, himself embarked in the very preseiKM- of the man with whom lie had left the message. Why, too, did he order his horse? Surely this is not the usual wny of passage from Chippewa to Schlosser. Surely there is no proof that the Caroline was attacked by any on horse, back. Whither was the horse led i W here left i Certainly these an; not badges of guilt, unless it be shown that they wore used for deception. Hut this is not shown. lJn(;.\plained, they arc proofs of innoCenee : yet une,\. plaiiied they are. Is this nothing ? Hut we have still other helps from tlu; people's case. To prove the ol)i*;ct of the prisoner's visit to Butliilo, and for what end ho went round the island, his own declarations have been oifered. Undoubtedly tli life of a ther right ir>'ly con- judge who new. Of ) desire to which he argument ;n without it is other ose whose judge who merely to im not dis- } court be- the decie- 10. I have eluded this men of the ir Supreme id been in- sional gov- ;s and citi- e band of ur arsenals f our coun- ind opened thought fit le exertion T were tres- ;an citizen, ourt of the from our he safe de- ires 1 No, remains for it to be un- belief, no 1 have been >ide by it — it, if needs he decision enable me , so that, in t have been Mcleod's trial. •251 mistaken — if that decision should not be in accordance with the law of the land, it may be reversed, and that established which I believe to be tbc law of the land — namely, that where there was such a war being corried on, between the British (lovernment and those who waged it on our side of the waters, the British (lovern- mcnt might properly exert its power to put down that war, and that those who acted in obedience to the orders of that government, discharged their duty as faithful subjects and citizens, and are not murderers. I desire it to be understood here, in this court-house, and by this audience, as well as in this nation, and throughout Christendom — for our doings interest all Christendom — that I do, with all duo re- spect to the Supreme Court of the State of New York, as a mem- ber of the bar of the State of New York, protest against the doc- trine which has been promulgated as the law of the land. It is not the law of nations — it is not the law of reason— and I, for one, never will submit to it so long as it may be necessary to contend against it for the safety of McLcod. On this trial I submit to it — 1 will abide by it; — 1 will submit, so far as this trial is concerned, without complaint and without murmur; and I only now refer to that doctrine of the Supreme Court of the State, to express my regret that it should be sent forth as a doctrine springiijg out of tin; bw of nations, as belligerents in the afiairs of war. The remaining ground of defence is that to which I secondly alluded on opening our defence to you. It is one of common occurrence, and may as naturallj' arise in a case of murder as in any other. Sometimes the books say it is a defence of some suspicion. And we will see what suspicions rest upon this part of the case, before we close the re- marks which we have proposed to submit to your consideration. And the books also say, when it is established, it is perfectly con- clusive. His honor has listened, I doubt not, to this portion of the evi- dence with all the attention and solicitude which his duty calls upon him to bestow ; and this portion of the defence his honor will tell you you must alone regard, and he will take pains to exclude from your minds any consideration which can influence your verdict, growing out of the law of nations. Of that I shall make no com- plaint. When you advance to the question as to the truth of the alibi, for, as the opinion of the Supreme Court is understood by his honor, it becomes his duty to charge you not to look at the law of nations at all,- -you will look beyond that, and inquire carefully and seek diligently for the truth as it shall exist in other portions of the defence ; and when you have found it, you, gentlemen, will embrace it — yes, gentlemen, you will embrace the truth in this case as a treasure, and regard it as apples of gold in pictures of silver; for, if ever it were desirable that truth should be found, it is now, — that you may know where your duty lies. The true question for your determination is, where was the pris- oner at the bar on the night of the 29th of December, 1837 1 If, as it has been proved on the part of the prosecution, he was at Chip- pewa, after we took him from there — if he made a portion of the ',i 5H.r» ,*"' v4. 252 GOULD'S REPORTER. iittnckiiip pnrty — if ho wn« one who bonnlcd the Caroline ot the (lend hour of midnight — thuii^li hin hniid dciilt not the death-bh>w, or the pistol whicli he held went not forth the deadly bullet — yet, if Diirfee reeeivod his denlh, it is murder, and all those who were enpnped in the enterprise are iiiiplicntcd. You are to inquire where, in reality, was AleLeod at that time I Had he the honor or the disijraeo to be enpaped in that expedition I If he had, then, under llie law, as applied to this caise, I confess it will be your duty to find a verdict of puilty. When I make this eonfession, I must be understood as refcrrinp to the law as it lias been laid down and established by one of the hifrlier tribunals of the State with refer- ence to this ease, but not as 1 believe it exists in tlie Jirm and un- shaken principles of tlie law of nations. Tiiis case, gentlemen, presents some features of preat peculiarity, to which allusion should be made, and which you should fully understand and proper- ly appreciate. It is, that, from the bepinninjy, as I have before had occasion to mention, long before the trial comtnenced, nay, nearly a year ago the main features of our defence, with nearly every attending circum- stance were fully and pnrrectly known to the counsel for the prosecu- tion; not indeed to the learned gentleman who now has it in charge, but Jo the Counsel for the people. And further, gentlemen, long since — a month ago, or nearly a month ago — our defence as fur as respects the evidence which we have produced from witnesses in Canada — so far as respects our evidence taken by commission, was fully and perfectly known — al- thougb generally speaking such evidence should be known to our- selves only ; in cases of a high criminal nature especially. Yet have we been driven to exhibit to the world as well as to the counsel for the prosecution, long ago, almost every word of that evidence ' — almost every word of our defence disclosing every minute linea- ment of our defence as it has been spread out before you. These depositions were in the hands of our learned adversaries days and days before their witnesses were produced upon the stand here to be sworn ; and every word of those depositions had been read, (or else our learned adversaries have failed to do their duty, which we do not charge upon them in this instance,) and what has been the result 1 Every one of those witnesses produced on the part of the govern- ment has had conferences with the learned counsel day after day, and night after night ; and they have had these conferences with others also; with the counsel it wos no more than was fit and proper, to be sure it was the business of counsel to have a previous examination of witnesses : and if they had brought them forward without first ascertaining what their witnesses would prove, I should have no hesitation in saying that they were guilty of a dereliction of du- ty, but I have no such belief. — If I had brought forward witnesses without knowing what they would testify, I would blush at the omission of an important duty. Neither of us I trust have omitted that portion of our duty. This becomes a high responsi- bility of counsel in trials of this character and importance j but 1 ICI,KOD 8 TRIAL. 253 e (it the th-blow, —yet, if »o were inquire lu>m>r or nd, then, our duty n, I must lown nnd th refer- \ and un- MitlcMncn, iilluHion d proper- cnsion to ir ago the T circutn- ! prosecu- in charge, nearly a which we pects our nown — al- ,vn to our- Yet have counsel evidence jute linea- These days and here to read, (or which we been the le govern- T day, and ith others oper, to be ination of lOut first ould have ion of du- witnesses ish at the rust have responsi- ,ce ; but 1 nUude, Ronthimnn of the jury, to the fact tliat the witncBsen for the prosecution hnv«! been roiiverNod with ^y other perHons than their counsel ; I am well convinced of thiii (act. This trial has not gone forward without having eyes open to nee abroad, without having earsi open to hear; and i have reason to be- lieve that there have been what may be called t'otninittec-rooinH \n this city, where those witnesses have congrc'gated, nnd where they have had read to them, if unable to read themselves, from time to time, a report of the evidence which had been given in the case, and where they have had their niinds prepared for the part which they themselves were about to take in the case. And you may be assured there was not one of thobe witnesses who iiad not a full knowledge of everything material in the depositions from Canada. 1 do not believe that the Attorney General or any one in this city has done it, but do you suppose that the learned Attorney General for the State of New York, that the District Attorney for the county of Niagara ; that the District Attorney for the coimty of Oneida, and the learn- ed counsel from Uufliilo, who was himself one of the committee of vigilance — do you suppose that these are the only persons enga- ged as counsel to uphold this prosecution — do you suppose that they are the only four engaged in upholding this prosecution ? If you do I desire that such a misconception should be removed from your minds. These four gentlemen, learned, able, and eloquent as they are, are but the corporal's guard of the army of conductors of the prosecution, which spreads itself from one of the frontier to the other. Generals, colonels, captains, soldiers, all have lent their aid here and their missives have been sent forth in nil directions. — The post- office department has been made stibservient to their purposes ; se- cret communications have been successfully kept up, and no efTort has been left unexerted which was calculated to secure the convic- tion of McLeod — and for what ? Not, certainly, that they desire the blood of an innocent man should be shed on the scaffold, but that the two countries should be involved in war, and that these persons who cannot on account of their offences return to their own country, may by that means be enabled again to enter Canada, though not as the vanguard, yet as the rearguard of an American army, for the purpose of wresting it from British dominion. How does it happen, if this be not true, that fresh witnesses spring up on all sides like hydras, gathering fresh strength as the cause proceeds 1 I do not speak without authority ; for after the evidence was closed, and the learned Attorney for the District of Niagara was about to leave, I desired him, in all frankness, to declare what witnesses, who appeared on this trial, ever appeared on any former occasion, when the case was under examination. And he was compelled to acknowledge that they were exceedingly few com- pared with the whole number. How then, gentlemen, does it hap- pen that in every successive movement of this trial, new witnesses spring up 1 if it be not that an army such as I have mentioned are at work — not for the purpose of eliciting truth, but of aggregating falsehood, till they add so much weight to falsehood itself as to \u ill, 11 . ,1U .\ f' »,1 jiii ' i . ,j-- i Pi"> 'i^ 1 1 ' Mil Ijil 'tk ijiiil;' 254 Gould's reporter. i l:ii E ?! give it an overwhelming power to crush the truth in its onward pro- gress. Why, gentlemen, we have not been unmindful of who has been sworn on former occasions ; there was in the first instance an ex- amination before Squire Bell, — nay, I will go farther back, to the time when witnesses appeared before the grand jury of the county of Ningara, in 1838, shortly after the burning of the Caroline, to charge certain persons, residents of Canada, with the oflcnce. We have been furnished with a copy of the testimony on that occasion. There was also an examination before Judge Bowen of the county of Niagara. You have heard, I dare say, gentlemen, of these ex- aminations, and of the names of the five witnesses who gave testi- mony on those occasions. But here, gentlemen, we have had a cloud of witnesses — thirty-three have been examined on this trial — and in the nature of their testimony there has been a great and radical chaiiire. And think you that these thirtjr-three who have been examined on the part of the government compose the whole army ] Why, gentlemen, there is a corps de reserve, which far out- numbers all who have been brought forward into immediate action in the fighting of this battle. This intelligence came to our knowl- edge long ago, it was legitimately within our possession, and we have come up to it in our preparation, although our learned adver- saries never condescended to declare to us who their witnesses were. The learned counsel for the prosecution have withheld all knowl- edge of .what witnesses were before the grand jury at Niagara. The Attorney General — I am sure the learned counsel does not mean to represent that the names of our witnesses were withheld from him. The names of those who were sworn before the grand jury were communicated to Mr. Bradley. Mr. Spencer — Yes, they were communicated at a very late day to Mr. Bradley. The complaint is, that few of the witnesses pro- duced here are those of whom we have any knowledge. Upon those examinations before Squire Bell and Judge Bowen, were the principal witnesses to prove the alibi. They were exam- ined and though not so fully nor so carefully, as in a court of jus- tice, still, they gave the leading features of the case as it exists on our side, and so strong was the evidence before Judge Bowen, showing that McLeod had no participation in the affair, that he de- termined to release him on his recognizance for his appearance. But as it happens in that district of the country, an appeal lies from a judicial officer to a popular assembly. Thank heaven, we have no evidence that such an apped will be brought here, or if brought, that it will be entertained. No artillery or martial music, will be brought here — no artillery, will^be planted in front of the prison- door to coerce us in our decision— no midnight mob assembled to the notes of martial music, has the power to exert an influence over OUT deliberations ! You have an easier duty to perform than had Judge Bowen on that occasion. You will have it in ypur power to open the prison- doors, and set the captive free ; if in your deliberate judgments, you determine tba* justice requires that you should do so, without fear irard pro- has been ;e an ex- k, to the le county roline, to ice. We occasion. ^e county these ex- rave testi- ve had a Ills trial — trreat and who have the whole ;h far oul- ate action )ur knowl- m, and we led adver- sses were, all knowl- igara. 1 does not e withheld the grand •y late day esses pro- re Bo wen, rere exam- urt of jus- exists on Bowen, that he de- ppearance. lies from n, we have if brought, ic, will be the prison- embled to lence over Bowen on the prison- tnents, you ithout fear MCLEOD'S TRIAL. 235 of popular tumult : and it is your duty — ;justice requires it, without the fear of outrage from the populace assembled for the purpose of murder and rapine. You will be able to render your verdict as the result of your deliberate considerations — you will not feel yourselves called upon as did that hijrh functionary, to apologise for the de- liberate judgment which you have formed. No, gentlemen, Utica, Oneida, New York, America, itself, I hope, will be saved from an- other exhibition so disgraceful to our country and our laws. Thus, gentlemen, you perceive that, from the beginning, t'ae op- posite counsel have been possessed of our whole case, and every witness has been well informed of it, and I challenge any man of ordinary capacity, to wink so hard as not to see thai these witnesses have shaped and framed their teiitimony in conformity to the case. They knew the exact time when our testimony takes McLeod from Chippewa, and returns him there ; they knew full well the testimony which fills up the intermediate space fr( ."n the moment when he left Chippewa, until he returned there again. And hence the whole strength of the prosecution has been brought to show that our testimony is false, and conjured up for the sake of saving the life of an individual ; while on the other hand, the evidence on the part of the prosecution is true as holy writ. These witnesses from the ends of the earth, come like angels of heaven to speak the truth, as if the light of heaven was, by their voices, to be reflected upon the case befone you, and you are not to doubt that it is all true. If so, take it, and give your verdict, and answer to your country for the consequences. But if I do not mistake the evidence, and my own feeble powers in unravelling evidence, I shall be able to show you that it has been made up of the blackest perjury that was ever brought to bear upon atrial. Indulge me, gentlemen, in another channel of remark, be- fore I come to the unpleasant duty of examining these witnesses one by one. It is, gentlemen — and it is not the first time that I have said It — that there can be no truth whatever in the one side or the other of this case. It presents a singular instance that it is impos- sible for human ingenuity to reconcile that both are true, or both may be believed to be true, so as to furnish an apology for witness- es who have been brought to sustain one side or the other — it is impossible. To Him alone who gave us our existence, can be ascribed the at- tribute of ubiquity. While tabernacled in clay, we are limited to a single spot at the same instant of time. No man is able, while thus living, to be at Chippewa and at Stamford at the same moment. McLeod was not at Stamford at all, if he had the slightest par- ticipation in the destruction of the Caroline, or in taking the life of Durfee. He was not at Chippewa on the night of the 29th of De- cember, 1837, if he were at Stamford, as we maintain he was. It follows, therefore, gentlemen of the jury, that, painful as must be the duty, you cannot escape its discharge; you must find that ei- ther the one side or the other of the evidence which has been ad- duced before you is utterly false — a sheer fabrication, got up to answer the purposes of the present trial. Now, gentlemen, allow f1 ■:'1 % . I h^\ I W':i:- 11 ' 256 GOULD'S REPORTER. m m me to ask what motive could there be, for the witnesses on the part of the defence, to come forward and fabricate falsehoods, while, on the other hand, you have seen exhibited in those witness- es, again and again, motives strong in death, to give success to this prosecution, that their own darling object of involving our country in a war with Great Britain may be accomplished. I charge it upon them unhesitatingly. With few exceptions, if any, I believe, most solemnly, that they are every one of them engaged in the enterprise which by many has been called the patriot enterprise, wliich has been undertaken to get up a war and carry it into Canada. All their witnesses are of this character and description ; if there are any exceptions they do not occur to me at this moment. Many of them are members of those secret lodges, of whose objects and purposes we are ignorant. And I am not addressing men who can inform me of their objects. They themselves know, and they keep the se- crets, except so far as their public exhibitions disclose them. Bound by frightful oaths to act in concert for the accomplishment of that which they dare not disclose, for fear of being subjected to punish- ment by the laws, they certainly cannot complain of us if we judge of them by their fruits. And what are those fruits 1 In the first place, the contribution of money, which is the sinew of war, to carry on their unholy purposes ; next, the contribution of personal ser- vices, encountering danger, and cold, and hunger ; also the contri- bution of food and raiment, munitions of war — *very species of ma- t'^rial necessary to carry on war against our neighbors. All this has been done by these men who compose these secret societies. Can you desire to have stronger evidence than the very secrecy of their proceedings. These men dare not' give publicity to their doings j but they are kept a profound secret, under the sanction of an unholy oath. Does virtue, truth, and true hone^y and patriotism, require this : that a man's motives should be buried in the dark, or locked up in impenetrable obscurity 1 No, gentle- men ; virtue and honesty need no concealment. A virtuous action may be performed, without putting him who performed it to the blush- — without exciting one uneasy moment. But these men take the witness-stand, and on their oaths declare that they dare not con- fess the natur*? of their society's oaths, for fear it should expose them to a criminal prosecution ; and yet they expect to obtain cre- dence from an intelligent jury ! Tell it not in Gath; publish it not in the streets of Askelon ! No such thing will ever find belief in the honest heart of an in- telligent man. These men, gentlemen, who have, by their oaths and associations, given protection and security to a notorious felon who, after conviction, had escaped from punishment before he reached the state-prison, take the stand and declare that they dare not confess it, and yet come into a court of justice, and ask you to believe their story. Yes, the witness Wilson, who kept the ferry, not across the river Styx, but across the Niagara, and who man- aged, not Charon's boats, but his own, could give free passage to the felon Lett, that he might burn and destroy the property of the peaceable inhabitants ; that he might murder the lamented Usher ; 5 on the sehoods, witness- ss to this ' country e it upon !ve, most nterprise l)ich has All their I are any y of them purposes in inform ep the se- I. Bound n of that to punish- \ve judge I the first r, to carry sonal ser- he contri- ies of ma- ese secret 1 the very ; publicity under the le hone^y be buried o, gentle- ous action it to the men take re not con- ild expose )btain cre- ilish it not of an in- leir oaths ious felon before he they dare isk you to the ferry, who man- )assage to rty of the ed Usher ; MCLEOD'S TRIAL. 25- that he might destroy the monument of Sir Isaac Brock ; that h<> might set fire to steamboats, and destroy the lives of innocent per- sons. But alas ! that celebrated captain-general in the army of the prosecution has been lost to them, and they have bitterly felt tlie sting of their mortification. These are the witnesses ; these are the con- stituent parts of that gallant and virtuous combination of leries, who come forward to take away the life of an innocent man, iliink- ing to claim belief from an intelligent jury. I am, gentlemen of the jury, really at a loss to determine what 1 ought to do with respect to the duty which I owe to this cause and to you. Ordinarily, I should feel called upon to enter miruitely into the evidence which has been given to uphold the prosecution. But ?o much time ha- been consumed — so many draughts have been made upon your pa- tience, that I hardly dare enter into the thankless office of com- menting on the evidence of the witnesses seriatim. But not being able, gentlemen, to discover, among you twelve, though some of you are well known to me, any window which opens a view to your hearts, and as long as there is a shadow of a possibility that you are not fully satisfied, I shall feel compelled to proceed, that no shadow of doubt may remain. I will promise you as much brevity as I am able, in examining a few witnesses, until I come to those who connect JMcLeod with the transaction. I shall dispose of the whole at a. glance, who were connected with the steamboat at the time of its destruction. It is enough, in thus glancing, to say that they came here with no in- tention to disclose fully and fairly the whole truth. Take the first witness, Wells :, Did he come here with an honest intention, and freely and frankly give you the honest truth, the whole truth, and nothing but the truth 1 Upon his direct examina- tion, it appeared that his only purpose, in fitting out his boat, was for the sake of private gain, giving a little scope to the enterprise which naturally distinguishes an eastern man — an enterprise under- taken for his own individual emolument. Such, gentlemen, was the plausible appearance of this witness's testimony on his direct examination. Was this true, or was it false 1 You saw with what reluctance he admitted one fact after another in his cross-examination. He started from BufTalo with this steamer, of which he was the owner, his crew consisting of a negro and a boy, and so exceedingly enamored was he of the mo'TP- ment of the machinery, that he stood gazing in silence ; and it is surprising that he had not, while beholding with such intense inter- est the wonderful operations of the engine, been converted into a statue, or like Lot's wife, into a pillar of salt. Before he left the stand, a few facts leaked out, like rain-drops after a long drought, and those facts were quite sufficient to overthrow the whole of his direct testimony. He stands utterly impeached and convicted of direct perjury. When a man takes an oath, he swears that he will Jell the whole truth ; and when his direct examination closed, he had not told the hundredth part of the material truth. Because, first when he stated that his resolution was to carry passengers and freight, he intended 33 > 11 } Ml^ !• ' I. I I '■^;;i, ..i' 258 fVOUto's REPORTKR. to communicate ihe idea to the jury that ordinary freight and pas- sengers were meant. But did he mean that ! if he did, ther the whole of his testimony is as false as the Koran ; if he did not mean that, he was guilty of a prevarication which should discredit his whole testimony. Either way he is upon the horns of a dilemma. But it came out th.it he had carried upward of one hundred aimed men — [where was the evidence of tliat I said the Attorney-Genera!] — and it turns out, also, that before he brought his stenmboat into the employment at all, ho went to the Island, saw General Van Rensselaer, Colonel McKeuzie, &c., and the result was, tho (IttiniT out the boat for the service of tlje Navy Islanders ; and he was, besides, referred to the executive committee, composed of thirteen, which is spoken of as having a commissary, secretary, and chairman, in Buffalo ; to these he was referred to conclude the details of the ar- rangements. In the early part of the examination he knew nothing of a bond of indemnity ; but it ultimately turned out that there was to be a bond signed by twenty of the executive committee, and it was at last actually signed by five of them. What was the intention of this bond I To indemnify Mr. Wells for the expense of cutting out and repairing his boat, and against all risks to which his employ- ment in the service of the brigands would expose him. This was the bond which should have been furnished by this committee of safety, who had the honor of being commissioners between the Islr anders and this contracting party. This is their first witness. Let him be taken as a specimen of the whole ; and see if you cannot discover reasons and motives enough, on the part of those on board the boat, for describing their dangers and perils with a little more coloring than the truth would warrant. I will pass over a few of the succeeding witnesses, and will ex- amine with a little minuteness, though it has already been done with much ability by my learned associate, the evidence of those witnesses who connect this affair with the killing of Durfee. And that there may be no confusion in the matter, we will take them up as they were called ; and while considering this, we will show that every one of these witnesses knew perfectly well all the pur- poses of the enterprise. I:et us examine and see how their testi- mony reads. Mr. Spencer here recapitulated the evidence of Philo Smith, of Caswell, and of Corson, and added, all these witnesses have been acting in concert. One of these was the witness who put the anxious question to the other, "Will the evidence taken by commission overthrow that taken upon the stand 1" The bar-tender of Smith says, he " saw McLeod only once that evening, and that was at the place where the rails were burning. After the Caroline was on fire he saw two or three boats come into the cut, and having some friends in the boats, he ran down to the mill where the three boats landed." Now mark, gentlemen, three boats came in — three landed ; he had some acquaintances on board, you recollect, and he came within eight or ten feet, where he saw that McLeod was one of them. From there he went to Davis's tavern with the party, and the wit* ness then says, they were debating in front of the tavern whether might # MCLEOD'S TRIAL. 259 c: I J ixnd pas- til ei the lot ineati reflit his dilemma. ,>d mined Genera!] boat Into lernl Van ittinsT out ;, besides, en, which irman, in of the ar- IV nothing ere was to ind it was tention of utting out is employ- Tliis was imiltee of :en the IsU ness. Let fou cannot e on board little more [id will ex- been done :e of those rfee. And e them up will show 1 the pur- their testi- ce of Philo witnesses \e witness evidence stand 1" once that re burning, come into own to the landed ; he ;ame within fie of them, md the wit- rn whether ihey would go in and talcc something to drink. But all this time he had not broken silence ; and then we have the singular fact of the soldiers' saying, " No, we'll not go in here, we have our bar- tender with us; we will go back and have something at Philo Smith's." These three or four or five soldiers then separated from their par- ty, and went home with the witness to take somcfhino;- to drink, lint the witness does not stop here. Why not ! I will give you the reason — first, because the darkness of the night would greatly weaken his statement, as there might have been a littio doubt about identifying the prisoner. He goes on to say, that he saw McLeod the next morning about daylight, and speaks of his being wounded. Smith's tavern, he says, is on one side of the public square, and Davis' on the other, at six or eight rods distance. Witness looked out, he says, and saw McLeod across the square, and recognized liim. But when he went over to speak to him he was gone, and . f.ould nowhere be found, although the witness sought him carefully (perhaps not with tears) ; — he did not afterward find him, or see !iim at all that morning. This Samuel Drown is the same man who, when he was summoned last winter to go to Lockport to give evi- dence, said he knew nothing which could beneficially afifect either McLeod or the people, and for that reason refused to go. And now what is his p»idence produced for, — to satisfy your minds that Mc- Leod was at Chippewa — that he was in the boats which formed the expedition. This is the same Drown who now tells you that he saw McLeod lirst by the light of the beacon ; that he came within eight or ten feet of him at the boat ; and in the darkness of midnight, and in the shade of those willow trees, his vision was such, that he asks you now to say upon oath that McLeod was the man he saw there, and that therefore you should hang him. He asks you to believe that he looked out in the gray of the morning and saw McLeod; and he wants you to believe, also, that he was not at Stamford, and not being there, that you should hang him, on the oath of this same Samuel Drown. Is this the testimony upon which to find a man guilty of a capital offence 1 It is enough, if true, I will admit, and the Attorney General might have abandoned all other proof. But, gentlemen, we main- tain that this Samuel Drown cannot command your belief. It is a singular fact, but so, by the eternal laws of our creation, will the fact always remain, that when a witness comes forward and commits a wilful perjury, he never covers the whole ground — never. He will always have some awkward feature in it, which might, by perjury, as well be supplied as not. A man committing perjury has unlimited means at his command — he will avail himself of some known and admitted circumstance which he can speak of and which will prove to be true, and with this he will connect the falsehood. Now what is the reason of this 1 I will fui-nish you with the best reason I am able, after several years' experience in the trial of causes. I say it with humiliation, but we never witness the :i' ■I ■'■\' It ' ■ ; 1 1' : 1 .4 f 1' t , ^ tetr ' 260 GOULDS REPORTER. sitting of a court for the trial of causes, where we do not wiuics- deliberate perjury. You need not be surprised then, p^entlemen. that there should be perjury upon this trial. The reason is this : as to the omission to fill up the given niche, it affords an opportu- nity to the learned counsel to say, why, would it not have been jus.t as easy to fill up that niche 1 He has therefore furnished you an argu- ment that he has not been guilty of perjury. This, gentlemen, is one of the subterfuges to which felons resort, in order to lay hold on public confidence and command belief. If he speak as to one important fact which 's corroborated by others, so much of his story is true, and having lOid the truth with regard to one circumstance, lie argues that it is reasonable to presume that the rest of the story is true also. These are the ordinary supports which a perjured witness will always call to his aid, in order to command belief. How is it with regard to the testimony of Samuel Drown 1 It is perfectly true there were boats which passed through the cut and went up the Niagara River, and it is also true that a part of the ex- pedition came up to Davis' tavern afterward. Though there is a discrepancy as to the number of boats, and it would also have been as easy for him to state that he saw McLeod at Davis' the next morning, as to say that he saw him across the public square, leavina something to be supplied by other witnesses. I pronounce the whole of this testimony to be, in my deliberate judgment, a sheer fabri- cation. Now with respect to Corson. He begins by saying that he saw McLeod at Macklem's at four o'clock in the afternoon. Well, we have no evidence to show that this may not be true, but see how he alludes to this circumstance to give plausibility to his story, and obtain for it credence. He has failed to mention a single human being who was with him at Macklem's store tow'itness the interview of which he speaks. Why does he bring in the names of Drew, Mosier, and Usher 1 He speaks of the unfortunate Usher who, a year afterward was murdered at midnight, at his own door, as you have all heard — a man w^ho was understood to be one of the party engaged in taking the Caroline, and who, for that reason, paid the forfeit of his life to the midnight assassin, when he rose from his bed to answer the call of a voice which he knew to be that of his neighbor. This Usher was vouched as one who was present upon the expedition. Mosier was vouched as another, and Drew as an- other, in this man's testimony; and why I because he saw these persons in Macklem's store in conversation with McLeod. Now what would he have you believe from this unsupported testimony ■? Why, he would wish to fasten upon your hearts and understandings the conviction that McLeod was a partaker in that enterprise, be- cause he swears that he saw him engaged in confidential conversa- tion with those men, who confessedly formed a part in it. Is not this his expectation 1 Surely it is. And yet you will have to fornj this conclusion against the united testimony of McNab, who com- manded the performance of the act ; of Drew, who executed it, in obedience to that command; and of Harris, who acted under tli.e MCLEOD S TRIAL. 261 itlemen. 1 is this : opportiJ- )een ju&t anJirgii- letneii, is lay hold IS to one his story imstance, the story perjured nd belief, •n 1 It is e cut and )f the ex- there is n have been i' the next :e, leavinsT the whole leer fabri- hat he saw Well, we ',ee how he I story, and gle human 5 interview of Drew, ler who, a or, as you the party 1, paid the e from hi? that of hii^ esent upon Tew as an- saw these lod. Now ;estimony '' irstandings rprise, be- conversa- it. Is not ive to fornt who com- [cuted it, in under th.e .lirections of captain Drew. And you must recollect the parties were in a public store contemplating a project which required se- crecy to insure its success. And you are called on to believe that men so engaged would publish on the house-tops the subject of their consultation. Gentlemen, I give you my full assent to believe, if you are able, the statements of Isaac P. Corson. Then he says, lie saw McLeod again on the '29th of December, in the evening. Well, I inquired what pretence he had to know. He said he met him at the door. The man he met coming from the light, he going toward it. Well, it would have been easy to say that he went over to Davis' and saw him there, and spoke to him ; this would have been just as easy, but it would have been more suspicious. To say he met him at the door, seems exceedingly honest, it is this plan which every man guilty of perjury would adopt to give credibility to his story. He stated also, that he saw him again the next morning, amid a crowd of persons, and heard him say he had killed one or two damned Yankees. He could see at this time only McLeod, al- rhough there were a number of persons present, and he could hear only what was said by McLeod, and no one else. Now, this looks very like fitting the evidence to the case. It was important to find a witness who would swear to a good deal of materiality. Unfor- tunately he cannot speak as to what any one ■said but McLeod, of whom, he could see only the head and shoulders projecting above the crowd. Now gentlemen there is another matter which is worthy of some note, this same Isaac P. Corson testified at a later period of his cross examination that he had heard of the arrest of McLeod, and of his examination before Squire Bell, in October or December, IS-liO, and it so happened that it was November; and he knew also that McLeod was brought before Judge Bowen by habeas corpus for examina- tion, with a view to his release, and during all this time this witness never opened his lips with respect to what he knew. The examination lasted several days in succession; it was during that examination that Defield, made his attempt to impeach the testi- mony of the Morrisons. "I knew the whole transaction, but I kept it to myself," says the witness. And why ? " Oh ! because 1 am not in the habit of speaking of such things," such is the testimony of this infamous I beg pardon gentlemen, I will not allow myself to make use of that expression, however, just and applicable it may be ; it escaped me unguardedly. He says that McLeod had confessed that he wae one of those who had set on foot and assisted in the enterprise. I ask you gentlemen, if you can give any credence to Corson, who can give such a relation as this 1 This shows the importance of cross examination, though it may seem to be rigid and unkind, it shows that these are witnesses who call for no very great exercise of charity or kindness towards them. These overwhelmning and contradictory facts were drawn out on the cross examination) But this is not all, there is another circumstance of impeachment of the witness, wherein he stands impeached, in the very witness's stand in our presence. I was desirous of koowing whether he J , . r m: 3 tS?i 262 CiOULD's REPORTEK. would venture to name any other person who was present, and who saw what he saw ; and after a good deal of scrutiny — a good deal ol pressing (for he had to be brought to the scratch sevenil times, he was so skilful in dodging, like the race horse hard to be brought to the starting post, but when once engaged in the race pursuing it with pleasure), upon being at last brought to the mark. He says, "It occurs to me at this moment, for the first time, that Mr. Caswell was there." I do not know whether any of you regarded this Avitness as I did, and if you did not it was no dereliction of duty, though I hope some of you did notice it, but my own conviction was that every word he uttered was rank perjury. You will have noticed how sud- denly it flashed across his mind for the first time that Caswell wa;? there, while it appears from his subsequent acknowledgment that he has since conversed with Caswell as to the particular day when these occurences took place and yet he told you on that stand, that then for the first time it occurred to him that Caswell was there. Gentlemen I will apply to this witness, the old adage Falsus in uiw falsus in omnibus^ which means, that falsehood in one particular throws discredit upon the whole. If he is unworthy of confidence in one particular he is in al! — a liar is not to be believed even when he speaks the truth. This witness — and the remark applies to ma- ny — was at a loss to tell how the people found out that he knew any thing about the case, but this is a point of no great consequence, i will now dismiss this same Isaac P. Corson as one of the colleague^ of Caswell and the two Smiths, who could not do better than adopt for their motto " united we stand, divided we fall," but whether wt consider their testimony together or separately, I believe it will not be considered worthy of belief. Let us next come to Charles Parke, he was bar tender for Davis, and consequently had good opportunities of knowing whether Mc Leod was there ; and yet he was exceedingly cautious. He saw McLeod in the afternoon, cannot tell the hour, and saw him again in the evening. You have the statement of iVicLeod himself thai he went to bed at about three o'clock, and Davis also states that he went to bed about three o'clock. But this witness makes the time of his getting up a little later than the others do, so as to make it dif- ficult for him to get to Stamford. At this point Mr. Press takes hiui to Stamford. Three quarters of an hour afterwards this man saw him at the cut at Chippewa. Now either Press has uttered a deliberate falsehood, or this same Charles Parke is perjured ; about this there is no mistake. He says he thinks McLeod got into one of the boats and proceed- ed up the river three quarters of a mile ; nearly opposite Navy k- land —witness remained there an hour or two upon the bank of the river and then returned and went to bed. Well, do you suppose, whether he was there or not, that he was ignorant of what Avas done — of the fact that the boats after they left the Chippewa were tow- ed up the river 1 He knew precisely what the testimony of four- teen or fifteen other witnesses was, upon this point, and he made his testimony to square with theirs. Now, the next morning he saw wishe that its an he wa here, comp( measi Nox standi howev courts do not and h( know he got the ex come asked then, \ .rA , and who (xl deal ol times, lu- ight to tlu' tr it with says, » It iswell was tness as I jgh I hope that every 1 how sud- 'aswdl wa^ TiTient that f day when stand, thtil s theve. Isus in vno : particular confidence even when plies to ma- le knew any sennence. I } colleaffue> r than adopt whether we fe it will not er for Davis, vhether Mc IS. He saw V him again himself thai ates that he tes the time o make it dif- ;ss takes him man saw^ him a deliberate ut this there and proceed- iite Navy 1^- ; bank of the you suppose, hat was done va were tow- lony of four- nd he made )rnine he saw MCLEOD .S TRUr,. 2fi:< McLeod and saw him also tiirongh every part of the day. Well, this was not necessary, because our own witness brought liiiu Imc!; the next day. His next statement is that at sunrise or a little Inter he aofain saw MeLeod in the public square at Chippewa with a swortl by his side, he could not say that any one was with him, nor did he hear him say anythinir. Now is it very likely that he should have seen McLeod alone with a sword by his sido at that early hour in the morninof 1 If you believe this story you will have to disbelieve our whole case ; if you doubt it a little the witness cannot complain, after you have heard a little more which will appear in the sequel. He says he afterwards heard McLeod boast of havintr taken part in the expedition. I, (jentlemen of the jury, standinpc i" "ly place as counsel for McLeod, authorized by him, take upon myself to say that he never made any such hoast. When these statements have appeared from time to time in the public prints, McLeod has said " Can it be possible that they should suppose i am so very a fool as to boast of having had a part in this matter, when every person living along the frontier knows I had nothing to do with it!" If he had boasted of it on this side of the line would the evidence not have been brought forward here on the part of the prosecution '. But if he boasted of it on the Canada side of the Niagara river he would have been guilty of the most arrant folly J I have had to in- terpose my authority to prevent McLeod from contradicting through the public prints, these absurd statements. I represented to him that it would be much better to allow the trial to exculpate him from the folly which had been imputed to him of boasting of an achievement in which he had no share, and at a place too where it was perfectly well known that he had nothing to do with it. There is another circumstance regarding this witness, Charles Parke, to which I would desire to direct your attention. You will recollect that he lives seventeen miles up the Chippewa, and he wished to give you to understand that he came here reluctantly; that emissaries were stationed to watch his entrance within the lim- its and jurisdiction of the State of New York ; and when, at last. he was surprised and caught at BufTnlo, and subpa-naed to come here, he went to Mr. Hawley to ascertain whether he would be compelled to go, and was told, that unless he consented to go, measures would be taken to compel him. Now it strikes me, gentlemen, that there was no want of under- standing on the part of this witness. He knew perfectly well, that however potent the arm of the law is within the jurisdiction of our courts, that it could not have reached him, if he had gone home. I do not believe a word that Parke has said. He was a bar-tender ; and he represents himself as being so busy that he did not even know where McNab's quarters were : and it is a little sinjjular that he got away up the Niagara river three quarters of a mile, to see the expedition embark ! Then, with respect to his unwillingness to come here, he says he was on his way to Buffalo, and a person asked him if he was going to Buffalo ; he replied that he was, and then, like a scape-goat, got into his wagon and drove home ; and 1 ..— « I ■ , t ■10 :64. •jould's reportkr. lor no reiison b\it because a man asked him if lie was going to IJufralo. Now if he was really poinp to Buffalo on busiiu'SB, and believed that this man was a spy, who would pive intelligence to somebody that he was poiiip there, would it not have been easy for liiin to put the man off his guard by what Afrs. Opie would have called a white lie ! But he was so very scrupulous in truth-telling, that he said he was going, and then IUmI away ! I will give you my interpreta- tion of his conduct. He started to go to Bulfalo, to be sulipii naed to attend this trial ; and when he got to Chippewa, he ascertained that he was one week too soon. He went home and waited a week, and then what happened ! Wc find him next coming, with a two- horse wagon, into Chippewa ; and, as he says, he was inquired of again if he was going to ]{nffalo, and there was a man standing by who turned away his face as though he did not notice him ; and this man crossed below the falls, and got to Buffalo before him, and was ready with a subpoiia for him when l.e arrived. He had his team there, and what did ho do ! Did he buy his plough, and pump, and stove ! No such thing ; but sent his team home without them. Now, gentlemen, if this be a story which commands your belief, 1 confess I am greatly mistaken. In my opinion, the whole of this statement is set up to give force and consequence to his evidence ; to give you an idea that he came here by constraint of the law, that this circumstance might furnisli to you evidence that he had no mo- tive in falsifying the truth. If it be not so, then I confess I have been wholly unable to see its purpose. He knew full well that he would have plenty of time to come here before his evidence would be required ; and I submit to you, whether, if his statement be true that he come reluctantly, he would not have purchased his plough and the other articles which he professed to have gone to Buffalo to buy, and sent them back with his teamster 1 But if I know any- thing about it, he brought a person with him expressly for the purpose of taking the team back, knowing that he would be sub- pcBnaed. This man also endeavors to fortify his statements with other cir- cumstances. He says he was invited to leave the tavern and go up the river with Captain Nellis. This same Captain Nellis was a stranger in Chippewa ; but he had procured the countersign, which was the word "Place," and gave it to the first sentinel; and thus they could wander about, never having the countersign demanded after the first time. This part of his story may be true ; but as I do not belie /e any part of it, you will pardon my skepticism in doubting this also. He says he went up merely from motives of curiosity, as the house was more empty then than common. He says he looked McLeod in the face, but did not speak to him. It became important that this same Charles Parke should testify that he saw him at a distance of eight or ten feet in midnight darkness, and that he looked him in the face. This is the same man who, several years ago, went with his brother-in-law, some twenty-eight or thirty miles, to settle sheriff's fees ; and this is his apology for knowing McLeod ! This ends the patchwork. He was afraid of *1 ; I. ' mt MCLEOD 8 TRIAL. 26') It I going to • 1 bo lie veil poiiiebody liin to put .'(1 a white it lie said iiiterprctn- ;ultpa nuetl scertainod ed a week, /ith a two- iiquired of lauding by him ; and re him, and He had his and pump, hunt them. »ur belief, 1 ole of this i evidence ; le law, that had no mo- ifess I have veil that he ence would ent be tvue lis plough to Buffalo know any- sly for the aid be sub- 1 other cir- and go up ellis was a sign, which ; and thus demanded 16 ; but as I epticism in motives of mon. He to him. It testify that It darkness, man who, iventy-eight apology for s afraid of going to be a witness, and would flee from any one wiio was likely lo 8ubpa:na him, as front the " wrath to come. Meyers lived in Canada, and says that eiirht or ten days after the burning of the Caroline he saw AlrLciod. This is the man who wandered about the country from the round plains near Lake Sim- coe ; and the forty years' wandering of the children of Israel in tho wilderness was never drawn upon a map more devious and crooked than was the route which he pursued ; and it is a wonder that he was not as long in getting to the land of promise, as were Moses and his followers. I wish you could look upon a map : to puss by Smitli- ville from the round plains, he must have gone forty or fifty miles out of his way. Did he go through St. David's ? No ; he went west of St. David's. Did he go to Chippewa ! No; for he saw no soldiers. Where did you strike the Niagara river ? I do n't know ; it was two or three miles from the falls. The sequel shows that he was brought through this devious way to have an interview with Alexander McLeod. Now let us have it. [Mr. Spencer here turned to his notes of the testimony, and read : " Somebody said, Where is the man that shot Durfee. McLeod cried out, ' Here ho "s ; I am the man,' — and drew out a pistol and said, 'that is the pisiol that h'lot him.' He then drew his sword, and said, 'there is the blood of a d d Yankee.' There was blood dried upon the sword, for live or six inches from the point."] Nowifthisisa story which you are ready to credit, that, eight or ten days after the burning of the Caroline, McLeod was at the Pavilion, or any other tavern near the Falls — if you believe that McLeod was there, with a pistol in his pocket, and a sword by his side with six inches of blood upon it, — then you will be able to believe the story of Meyers, who wan- dered forty years before he found Alexander JMcLeod. But I think, before you give credence to the story of the wandering Meyers, you will set him down with those who have preceded him, and who have fabricated their stories from beginning to end, and told the most foolish lies to get into the presence of McLeod. Calvin Wilson is the man who kept the ferry at Niagara. He would not acknowledge that he harbored Benjamin Lett ; but he is the same man who gave $200 to promote the patriot cause, and the man who belongs to a secret society, and who was afraid of a crim- inal prosecution, if he swore to the truth — the same man who swears to the confession of McLeod. Now look, and see if his confession does not follow up in the chain with those who testified before. When some one inquired how many were killed at Schlosser : "He did not know ; but one thing he did know, that one d d Yankee, or rebel, had got shot upon the wharf." Well, gentlemen, our commissions prove that there was, in point of fact, a man shot upon the dock, and that he fell dead ; and it is well known that Durfee was found thus shot : and this confession, which was put by this witness into the mouth of McLeod, was framed just to suit the case. I intended to treat this Wilson fairly. I asked him how the con- versation was introduced. He says he went over the river to see Mr. Meredith, the successor of Mr. Raincock, and that he saw Rain> U ( : ■ t ■i ,(• 266 OOULD 8 REPORTEIl. PSi i U'V,: cock in tlic bni'-rnoin ; tliiit Kiiincock mndo the inqniry, nnd McLeod unHwcrcd iiiiii. I put, llic (|uc?.tioii lo him — " Ar«' you not nii.siiik7 dMcLcod . miNtiikcii r,y stirr. I c\i (lid imt ' Now il le coiivfr- •If tnltl UK' Dnr or five : time. It I'ltlsehood. to his tes< thtit iilso. cn|H[th ; In- iild not be he witness 9 do. He uld not be im, and no im, lie has ory utterly one of the the natural ; needs not along nny- le truth is Isehood to ivolves the h leads to r dwelling, rt to those discovery. to us the !y General in his oath. us farl 1 xrshly. as to Sei/i ter the de- 1 this story say he was tness must one hun- ith troops : >uld get up ^ar that he id been ex- Leod, and orning; he ing. Now, ^(■lUlonieii, thin mnn — thi» Scth (lininan — in a brother-in-law of Cor- son, and a collen^'ue of the Smiths. This iH the man who had Ix'eu railed, one year ago, and then only tostilicd to the inlerviou in the eviMiiiig ; hut now, having heard our depoHilionx, and kiiowinu our wholu case, and iiuding this an nn|i(irii)nt point, he conjiircH up tlii.>^ story, that he came down in pursuit of news at duylij^ht, and that he tluM\ saw McLeod. Oh! the depth of the wickeduoss of man! to fabricate a story to swear a human being to the gallows. May (iod grant him deliverance, for no other power is equal to ii. Here the Court took a recess for dinner. Afteknoon SEsaroN. The court-room this afternoon was more densely crowded than in the morning, and the number of ladies was greatly ii\creased — among whom were to be seen the ladies and daughters of the first citizens of Utica, attracted, tloubtless, by the fame of the gentle- men who were to address the jury ; and well indeed were they re- paid for the eager attention with which the arguments of the elo- quent coimscl were received — lor perhaps on no previous occasion, in this section of the country, have been heard more splendid dis- plays of forensic, eloquence and elaborate argimient. Mr. Spencer proceeded as follows : — At the time the Court took a recess, I had partly finished what I conceived to be my duty to the prisoner, in pursuing the examina- tion of witnesses for the prosecution, upon whouj their case rests — though when I take a view of it, it appears to me to have no resting- place under the canopy of heaven, i have yet to examine the tes- timony of several other witnesses, because there are emphatically a great cloud of witnesses; and if in this case, as in others it is said, by the mouth of two or three witnesses shall all things be estoblished, how much greater is the danger of my client, when such a host of witnesses are marshalled against him I Before pro- ceeding further in this examination, which I admonished you would not be interesting, but dry and desultory, I will add, that, though I may seem harsh and severe in my strictures upon this evidence, I will "nothing extenuate, nor set down aught in malice," but truth- fully, faithfully — and I hope fearlessly, present my views of the evi- dence connecting McLeod with the destruction of the Caroline, so that it will appear, as by the light of the brightness of the sun's rays, in its true character — the whole of it, as I verily believe it is from beginning to end, an unholy and wicked combination of wick- ed men, to promote the most base and wicked purposes. Sn7-les Yates will not, need not, receive much attention at my hand. I notice him simply to remark, that the least trifle on earth has been hunted up with the hope of making it available in this case. The whole of his evidence amounts to nothing at all. He says, that somebody said, "This is something like the night of the burning of the Caroline." Another answered, " Yes — we gaA'e them '■Jlleck^ — I should like another job like that." His evidence, it was hoped, would connect McLeod with the affair, but that failed ; and when he had got through, I was about to call upon him, when the Court interposed, and almost censured me for not objecting to < . .^ Ii 268 GOULD S REPORTER. m.^^ iW asii it at the time. I have no doubt the prosecution hoped, by means of his evidence, to connect McLeod with this afiliir, and I have only to call your attention, and say how signally it has failed. This witness shrunk from the service which he had pledged himself to perform. The next is William Caswell ^ and here, you will bear in mind, I bring in one of the group, in respect to whom I have commented already. He is one and indivisible with Corson, the two Smiths, and Hinman. They all stand in the same category, or little knot, with combined hands ; they have looked into the depositions, and have calculated to command belief from the greatness of their numbers. It needs no greater strength of ingenuity or depravity — the wickedness is the same — the depravity of which it furnishes the evidence is the same ; — and this is a matter which involves in- terests sufficiently diversified to find more than one, or five, or twenty-live, or five hundred, as depraved as Caswell and the Smiths. It is my solemn conviction, that this most dangerous combination along the frontiers of our country can furnish any number of men for any purpose, whether to hang McLeod, or to involve the coun- try in war. I have no confidence in them — I repeat it, I have no confidence in one single soul of them. I believe they are all steeped in desperation. My acquaintance along the frontier coun- ties has satisfied me that they are a body of men, who, if conse- quence enough can be attached to them, will involve our country in a war ; but if Great Britain and the United States will view this subject in its true light, they will find no cause for war, merely be- cause such schemers shall undertake the work of pressing them into conflict. There are some within my hearing — within my look too — and I say to them, as I say to every other one along the fron- tier, that this efl!brt to get up a war shall never meet with success, if their character and motives can be well appreciated by the com- munity, to whom they owe a solemn duty, but disregard it. This Caswell says, that he saw McLeod at 9 or 10 o'clock, more or less — he concluded that he was talking to a scrivener, who was making out a deed, and who says, seventy-five acres, more or less — going from Davis' to Mecklem's. He began, as did Corson, and as did the other two witnesses, and Parke, with taking latitude enough to meet any and every emergency. He says he saw him again the next morning on Davis' steps. If McLeod was there at 9 o'clock, and remained till ten, it would not be very strange if he were one of the party who entered a boat at that hour, and put off' for the American shore ; and if he were there at 7 on the next morning, never having been away through the night, it would not be strange that he should have been one of the party. Caswell swears to this with great positiveness : it is true or false, and he knows which, just as well as any human being can: and it becomes the duty of you and me, to put what construction we consider right, as to whether it be true or false. He says there was quite a number of persons about there at the time when he came into the bar room, and heard McLeod talking and heard him say that they made the d — d rebels run when they m~{i^ more who was or less , and as enough Tain the o'clock, ere one for the nornms;, strange Mcleod's trial. 269 came there ; that he had seen one dead on the dock, and adds 1 think he had a large pistol in his hand by the muzzle. This witness spoke witii Corson and asked if the depositions would come u|> against the witnesses on the stand ; two or three of the party, who had been over, were talking together ; one had seen a man dead on the dock ; and, if Corson was not mistaken, McLeod held a pistol in his hand. 1 submit to you, gentlemen, whether you are not satisfied that this man who says he went on to the steps just as McLeod went off, that he came half a mile before daylight, that he did not speak to Mc- Leod, that he had no arms, but " knew he was engaged in the Caroline affair," may not very well be set down with the rest. What do you think of this expression: — "If 1 am not mistaken, I think he had a large pistol in his hand by the muzzle" \ If the fact took place and he saw it upon the morning of the 30th December, there was no need of his expressing doubt as to being mistaken ; if he saw him handle the pistol by the muzzle there was no need of thinking or doubting ; but even here, this man is not the first instance where men have failed in having courage, — 1 will not .say moral courage, he failed in nerve — and dare not come up to the labor of positively asserting that this man then held a pistol by the niuz'/le and that it was the instrument of death which was used agamst Durfee ; why notl Becau'>ehe is like every other coward and knave, and villain, that stalks abroad in our land ; when did you ever know a man of nerve who was steeped in iniquity ] It is hon- esty, generosity, nobleness of soul, which enable a man to declare boldly and fearlessly what he knows. But no' such thing ever per- vaded tbe bosom of this Caswell ; if so, it has been long since ex- tinct, nnd if not, he only needed to be swayed by those who ap- peared before him to extinguish every particle which ever mingled in liis composition. Thus much for this man ; which brings me to the evidence of Anson D. Quinby. The testimony of this man has been thoroughly examin- ed by my associate, I shall not have occasion to say much respect- ing it ; but I owe it to the Attorney General to say that he is not responsible for the character of this witness. I presume he has received many letters from persons with whom he would not be the first to open a correspondence. The man Grosvenor, who first wrote to the counsel for the prosecution on the subject of Quinby's testi- mony, is a fit associate of Quinby, as I verily believe, for he stands under an indictment in Pennsylvania on a criminal charge: He was a fit tool to inform the Attorney General thnt Quinby woul:' be an important witness, but did he ta'.ce the precaution not to be him- self deceived ! I believe he has been again and again deceived. It would seem so from the account which Quinby gives, and Mr. Lotl, the magistrate, who would not put the statement in the form of a deposition, which was required ; but the magistrate, Grosvenor, took ti\e deposition and certified to his character and foujiu at induce- ment snfliciently strong to bring this Quinby here to depose. He did come ; we have seen him — we have heard him — and we have •1 M 'i Ml. a • t •> :.M J m *270 ^OUI^D S REPORTER. lieartl his character from his neighbors, and it is now submitted whether lie is deserving of vo'ir confidence. The witness s«ys, 1 saw .McLeod again at sunrise, not far from the end of the bridge. This is an entirely new location ; he was not a very apt scholar, or he has not observed his teaching with the same attention or fidelity as some others. He says there was no one with him, and he is not sure that McLeod had a belt around him or anything hanging at his side. He says that some one came across the bridge and asked him how they made it go. He said, "I or we, killed two d d Yankees." He held up a sword and said, there was Yankee blood upon it. If he had seen it and knew it to be Yankee blood, it would have been almost proof conclusive that it was the blood of Durfee ; as he was the only Yankee slain on the occasion. He says he saw McLood at Davis'. But you cannot find a man to agree with him in this statement, because he says it was at eight o'clock, and it is stated by others to have been at seven ; but as to the time, it is quite immaterial. It became necessary that this Quinby should come all the way from Pennsylvania, and have his expenses paid from where he lives fo Buffalo, then have $10 given him to get to Utica, and a promi:-c of pay for his return, and for his time also. This, gentlemen, is the man we find, where the point pressed the hardest, ready to supply all deficiencies. He probably was at Chippewa on the night of the •i9th. And if he was there on the '29th, with a load of hay, he might have seen McLeod, and it would not have weakened the force and strength of our defence, in the smallest degree ; but since he came here, he has found, that it was much more important to have seen him in the morning. Think you that he had not learned that those witnesses, upon whom I have commented before, were ready to swear that they saw him in the morning, and that he himself has not taken courage to swear that he also saw him in the morning. We will now see what reasons he assigns. He says he saw Mc- Leod ia the morning at a very early hour, between daylight and sunrise, not far from the end of the bridge. He says that he came in with a load of hay in the afternoon, with a team which was owned by his neighbor, for it seems he was not himself the owner of a fa^m, or a team. H.i did not know where the hay was weighed ; he did not get pay for his hay. The man who brought it went home, to Sodom^ a distance of about five miles ; a fitter place for this man could hardly be selected on the face of the earth. The man went away and left him, and he saw McLeod there tibout nine o'clock in the evening. According to his story, he undertook to walk home about two miles, which he could do in thirty minutes. Well, he started ; but, did he get home ] No, he stopped at Mr. Pettis\ about half way to Sodom. He never had staid at the house of Mr. Pettis before. Was he invited to stay that night 1 Not at all ; why did he stop there, and stay instead of going home to his family 1 Why, it occurred to him that he had a settlement to make with the commissary, and he wished to return early in the morning, and thought he would stay at Mr. Pettis' over niglil, as he would be just so far on his way next day. That is the reason. He therefore MCLEOD S TRIAL. •271 Itccl 31)11 LV from he vas vith the was no around ie came said, " I nd said, ew it to e that it n on the nnot find s it was t seven ; the way ! he lives L promi:-e 211, is the to supply ht of the he might force and ; he came lave seen ,hat those ready to mself has orning. saw Mc- light and le came as owned tvner of a hed ; he nt home, place for th. The jout nine ertook to minutes, d at Mr. the house Not at me to his t to make morning, would be therefore left Pettis', and having only fifteen minutos' walk instead of thirty, he g-ot to Chippewa about sunrise. Well, did he do any business at the office of the commissary ! He did not ; but he passed by Davis', rind there he chanced to see ^IcLcod nt the end of the bridge. He went on to the olfice, lliinking that lie rviiaht find the clerk "in. He -itaid there without his breakfast, and finally got home about noon, without seeing the connnissary general or his clerk; without his money, and without his breakfast. He could not but have known that these offices are not open until nine o'clock, but he foi'n'J it necessary to furnish some excuse for being back at Chippewa in the rnorning. If you can believe this long slory of Quinby's — if it does not carry its utter overthrow upon the very face of it — we may be obliged to show you something of his character. Lott and Wet- more, both of Pennsylvania, say they would not believe him on oath. That is his reputation where he is best known. It is a re- mark of the neighborhood — " If you want a man to swear up to the mark, call on Quinby." He came here and has sworn up to the mark, as perfectly as in Warren county, Pennsylvania. If you are satisfied, and can put reliance in him, as he has come so fully up to the mark, you will give to Ins testimony ail the con- sideration it deserves. We will now pass to Justus F. T. ^icvcns. T did not ask this witness a word, for I saw the pain and distress that my adversaries endured while he was upon the stand. He had not got his lesson. He is contradicted by every other witness whom they have brought before you. After he had told his story, he was permitted to re- tire. I do not recollect whether it was after you had retired, but I saw the same Justus F. T. Stevens coming forward to the stand, where he received a certificate of attendance here, to entitle him to a reward for his services — the stipulated price to be paid for per- jury. This is the man who spoke of seeing three boats put ofT di- rectly '^lom the cut across the river, and come back to the same place. This brings me to another, who was considered by the prosecu- tion an important witness. / thought he was entitled to be placed alongside of Parke. It was fun-and-frolic Leonard Anson. He was among the latest witnesses. I have no doubt the Attorney General had been deceived. When they made their foraier statements, .hey perhaps were not crf-ss-examiried. I will not believe that those who had ttie management of this prosecution ever had ci..y just con- ception of the charactpr of their testimony. One thing I have re- gretted that among the number of the prosecuting counsel — com- posed (/ gentlemen whose reputation stands high for professional ability — gentlemen holding high and responsible judicial offices imder the government — that not xne among them, when this testi- mony wa« concluded, had risen and said: This testimony will not justify a conviction 'Yf*txe is so much doubt thrown over this ;ase that we cannot isk r verdict of guilty. If this had been rione, o would have been an antidote for many evidences of asperity For the evidence which hiis been given has not been confined under a wishel ; it has been given in open day : P '■ \: '|::'kli- ^^-l; 27-i Gould's reporter. it has already gone forth to the work) ; it will be read by our reading) cotninuriity — by ihc European reading community ; and throughout Christendom. The public v ill read and will judge it; and it may .safely be said, they would justify the prosecuting counsel in rising in their places and disclaiming a verdict of guilty. I spoke of this Leonard Anson. I am willing to leave to the learned gentlemen the conduct of their case ; but, at the same time, I claim the right to judge of the manner in which it is conducted ; and having formed a deliberate judgment, I claim the right to ex- press it ; and I have thus frankly expressed it before you. This Leonard Anson was in bed at l^liilo Smith' Th ere was a sentinel at the door ; he got up and looked out, and saw the Caro- line burning. He went to Davis' tavern ; where he heard McLeod say that he had killed one d d Yankee, holding out a pistol which had blood upon it. He afterwards heard of McLeod's arrest before Squire Bell, and he went forwai'd as a witness on that occa- sion. I have taken the pith and marrow of this testimony, and you will judge whether there is any fun in it at all. In the first place, he stated that it was just t the dawn of day — when light scarcely was streaming from the horizon — it wrs not sunrise — ii was not broad daylight, when he went from Smith's over to Davis'. Arrain, he states that the lights were all blown out. Do not forget that, for he says so. We bring him to Davis' tavern, then, just as the day peeped ; here is a room full of men discussing the question as to who had committed the greatest crime — McLcod declareti that he had killed one d d Yankee. Witness saw the pistol. six inches besmeared with blood. He resided at Niagara Falls. Mr. Spencer here recapitulated the whole of the testimon}'^ of this witness, and proceeded to remark : — Here you have the story of this itinerant witness. I have read his testimony pretty fully ; and now I want you to bear in mind, that he went over just at the break of day ; that he saw the bloody pistol in the darkness of the room, when every body knows that these horseman's pistols are very ne^ "ly the color of blood. An- other singular circumstance is, that this man should have lived at Smith's, bedded and boarded with him, come to Lockport with him. and been constantly with him, and never mentioned, until after McLeod was arrested, what he knew; but when Smith went to tes- tify, and having been unable to make himself believed, sent ofl twenty-one or two miles, in the night-time, for this witness — he was then ready to swear to this story, which it had never been con- venient for him to tell before that day. If you are inclined to believe him, I have nothing to say. John C. Davis, I will have occasion to allude to again, when 1 come to our part of the case. Philo Smith supported Drown ; now. Drown will support Smith ; and Corson will support Caswell, and Caswell the Smiths ; you may thus go round the Avhole circle ; and I wonder that had not been re- ported to, for they are ready to swear for one another. I will now comment for a single moment upon the evidence of James M. Dvke. He would not own that he was a stage-driver, mm !.i. MCLEOD S TniAL. 273 read in «> oiighoui i it may in risint! 'e to the me time, nducted ; ;ht to ex- 2 re was a tlie Cani- McLeod t a pistol d's arrest hat occa- ', and you the first 'hen liglit LUirise — it to Davis', not forget • n, just :is e question I declared ihe pistol, rara Falls. ny of this lave read in mind, e bloody news that ood. An- e lived at with him. nntil after nt to tes- sent ofl s — he was jeen con- to believe in, when >rt Smith ; ; you may )t been re- idence of lore-driver, but he had been entrusted to receive the pay. I wonder whether he has not been employed to lie too. He was called to disparaire the examination of McLeod before Judge Bowen or Bell. McLeod had stated before Bell or Bowen, that on his return from Stamford, he met one James M. Dylcc. McLeod \oiiched him, to prove that he was not at Chippewa. They then called James IM. Dyke to swear he did not see McLeod atthrt time, and he did swear so, most stout- ly ; he must have a pretence for his inconsistency, and he says Mc- Leod was mistaken altogether ; that he met him at Stamford on the morning that the patriots deserted the Island ; and that a boat was sent from the Canada shore to take off a single individual ; lie says that was the morning that he met McLeod. Well, how did he see him I McLeod had stated that he met Dyke a little way from the Pavilion. On the morning of the 30th December, Dyke swore that he saw McLeod hitching a hoktie ; but he intended it as a contradic- tion. I have no doubt the circumstance he mentioned was false ; it was one of those wicked devices which have been practiscMl to get up a pretence to sustain them in iniquity. What further did he swear to when he came into our hands / He would swear that he did not see McLeod, but did leave the Pavilion to go to Niagara on the 30th December. If Dyke did go from the Pavilion to Niagara on the hour mentioned, McLeod may have seen him and Dyke not have seen or noticed McLeod. But he had told that he did meet McLeod, and never discovered his error until quite recently. It came as suddenly as it did across the mind of another witness that Caswell was present — as suddenly as electricity itself. He had de- clared that he m.et McLeod on the way ; and this James M. Dyke was called to overthrow the deliberate declaration of McLeod when he was examined before the magistrate ; for there they could sum- mon James M. Dyke, Mr. Morrison, and his whole family. Press, and a cloud of witnesses to give the lie direct before Judge Bell. And so before Judge Bowen on the habeas corpus. I have done with Dyke, and it brings me almost through this painful business. We come now to the testimony of Timothy Wheaton. When the prosecution rested, I advertised the Attorney General that we should insist upon the rule of law, that no further confirmatory evidence would be admitted. I did not then disclose the reason ; but I now do, thus disclose it : I knew there were hordes of witnesses here who would, if it became necessary, come forward ; that it would be in his power to add any number of witnesses to those already called. I intended, therefore, that he should exhaust his privilege, and nc further door should be thrown open into which the step of perjury could enter. But the Attorney General seemed to differ from us, he declared afterwards in the presence of the court, and I have no doubt he did it sincerely, that he embraced also the absent witnesses whom he had left, and upon his word as a gentleman the court allowed him to come in and examine those witnesses. I at the time made no com- plaint against it, and I make none now, I make him welcome to every pound, ounce, scruple, and grain of evidence which he derived from those witnesses ; he needs it all, I would not detract one par- 35 ( ■ ■rA Ci ^' is M- i!: 274 GOULD 3 REPORTER. \:'i It tide. With every support which can be gathered on all sides his case can hardly stand alone, and I will not therefore desire to take any thing from him. Now this same Timothy Wheaton was not at Chippewa, he lived at Whitby some thirty-five miles from Toronto. He says in October, one year after the afl'air, that he was at Niao;ara ferry ; that he then lived at Whitby, and was never at Niagara before ; that he bad star- ted to go to Lockport ; and when asked why he did not go, he said because he would have to get a pass, so he turned about and went back to Whitby again. Yon see again, how foolish a man can be as well as how wicked. Did you ever hear a more foolish thing than the story related by this same witness ; first that he should have left Whithj"^ and travelled to Niagara, with a view of going to Lockport, and not cross the river because he would have to get a pass ; but turned back and went to Whitby again. No cause for his coming, no cause for his returning, except that he had heard a con- versation from McLeod, so that he could come into court and swear. Again, I submit to you, gentlemen of the jury, whether you will believe, if McLeod has one drop of European blood coursing in his veins, he would have opened a conversation of this kind with this witness. It outstrips the veriest Yankee. I never knew a man from the utmost confines of Ehode Island or Connecticut, with all his eagerness in boasting of the excellencies of his wife, and the success which had attended his peddling enterprises, who suffered himself to be guilty oi so very foolish a volunteer statement, never ; and do you believe all this 1 that a man like McLeod, coming from a land where they are famed for their silence, would have been guilty of such an indiscretion ? Though last this witness may be regarded as not least in the stock of evidence. Welcome ; 1 bid the prose- cution thrice welcome ; and this brings me towards a close — it only remains forme to allude to the evidence r" 'Hlliam Dejield. What was he called for 1 To impeach the veracity of Captain Morrison, and for no other purpose. Who is this man '! It is enough to know that he was a British soldier in Canada, while the patriots were on Navy Island, and that from the service of his country, where he had taken the oath of allegiance, he deserted in the night time, and came to Navy Island , who did he find there 1 William Lyon McKenzie ; who would not trust him at all, but put him in gaol and kept him until the Island was evacuated ; for fear he would spy out " the nakedness of the land," and return. Wil- liam Lyon McKenzie never did a wiser act — I have no cause to com- plain of his conduct ; if he had kept him there to the present hour, he would have been just as useful on this trial as he has been. This same William Defield said that the only conversation he had with Morrison was when Morrison gave his evidence at Niagara in which Morrison said he could not swear positively that McLeod was at his house on the night of the 29th December, that he had been there a great many times ; he says that was the only conversa- tion he ever had on the affair, and now v/hen he swore here, he stated that he had heard Morrison at his own house,with his own family, ex- Mcleod's trial. 275 I • 1 ' ides his i to take he lived October, he then had slar- 3t go, he bout and man can lish thiniT he should going to to get a ise for his ird a con- court and ir you will sing in his I with this man from ith all his ;, and the lo suffered ent, never ; iming from Deen guilty e regarded the prowe- se — it only 'ield. of Captain Ian? It is ^ while the ice of his deserted in ind there 1 all, but put ; for fear urn. Wil- ise to com- esent hour, een. tion ]it; had Niagara in McLeod lat he had conversa- j, he stated family, ex- it press a strong desire that the American government would get hold of McLeod and punish him for the part he had taken in the destruc- tion of the Caroline. This is the evidence of the redoubtable Defield — this deserter — • this prisoner upon Navy Island ; — I think I may now say this liar, prowling about ; he was bore to-day, and there to-morrow. I can scarcely speak with composure of tlicsp miscreants, when brought up to swear in contradiction to that which has been testilied by per- sons of respectability, and with a view to consign to the gallows an innocent man ; I have much difilculty in preserving my compo- sure. What think you of a prosecution for murder which must be sustained upon such evidence '? I have now gont^ through witli this branch of my duty, 1 shall not name nnolher witness individually, who has be^n called, but speak of them in general. From Samuel Drown down to Deficid — take them all; put them together; melt them down in a crucible, and see how much virtue, dignity, and honesty of mind, can be found in the entire mass. I am aware I have dealt somewhat plainly with this body of men, and the treatment which they have received at my hands, as ex- amining counsel, may savor of harshness and unkindness. Thej- are to me strangers ; I judge of them by their conduct and story; and believing, ar I do, that every material word is a fabrication, you will pardon n)e when 1 say, that I have no sort of respect for them whatever ; and but little for the prosecution. But the law officers of Government are not answerable for this; they were only called on to sustain the indictment as they found it. They, however, in my judgment, have failed to do their duty fully, and faitlifully ; they were influenced, overwhelmed by the excited state of feeling along the frontier ; — any man could be readily indicted there ; any county which would give rise to a mob, and set at defiance the ministers of justice, is capable of finding an indictment, and convic- tion upon any and every character brought before them. The evi- dence of an unhealthy and unsound state of morals there, induced the removal of this trial elsewhere, and to bring it to the central part of the State ; and old Oneida was selected as the fit portion in the State, where this trial should be had. And if we needed any evidence of the propriety of the selection, we have it in the order and absence of excitement among our citizens -in the perfect observance of the laws of decency and propriety which has been manifested here upon this trial. I rejoice at it. I am willing, liv- ing in the centre of the great State of New York, that an Oneida jury shall give a safe deliverance to an innocent man, and take him from the fa*" gs of a combination as wicked as it is dangerous. I have now gone through with the evidence on the part of the prosecution, and I ask if I was not warranted in saying, in my open- ing address, that I had no fear of leaving the case with you where the prosecution had left itl I ask you, if you would feel justified in convicting even upon the prosecution alone — notwithstanding these midnight witnesses have sworn that he was the man who per- petrated the offence 1 I know you would not convict ; it is impossi- ble that you could give credence enough to this entire case, without ,.»:" % 276 GOULD 8 REPORTER. one word of defence. Would you, upon such testimony, consign a fcUow-being to the pfallowsl No! no such degradation would be cart upon the tribunals of justice. But we arc not at liberty to sport with the life of a fellow-being ; we have endeavored faithfully, to prepare this defence, and I make my acknowledgements to my colleagues for thus preparing it ; it evinces a greater diligence and faithfulness, on the part of those young gentlemen, than I have for myself any claim to the discharge of. IJut I came into the defence of McLeod at a later day than either of them. They dared to stand forth in the midst of a Lock- port mob, which, aided and fortified as it was, made the magistrate quail, and called him out to apologise, for having dared to do his duty! My learned colleagues dared to stand up and send forth a manifesto to the world, that the conduct of the populace might be condemned by the world, and our country never again disgraced by such foul proceedings. This brings me briefly to notice our case upon the defence of Mc- Leod. it consists of two species of evidence which have been ad iluced before you. One by depositions, the other, evidence which was delivered orally, by witnesses on the stand. And I am persuad- ed, gentlemen, that you will vastly better appreciate the testimony of those who have stood before you, than of those who have seiit it to you by writing. But who loses by it ] Is this the misfortune of the prosecution or of the prisoner! It is our misfortune. Those who live in Cana- da would not come here. They are not to throw themselves within the grasp of these men who live along the borders, and are ready to seize upon any one whose life they can put in jeopardy by charg- ing him with murder. They did not see fit to throw themselves in the way of prosecution. They could not come. We sent, and brought the testimony which they have given, and we now submit to you whether it be for this reason less w^orthy of belief; but here again, we are in darkness ; the opposite counsel have said nothing in their opening remarks or in the progress of the trial, as to the manner in which they intend to treat this part of our testimony. I have taxed myself to know what they will say to detract from it, and I can find no plausible argument. We commence with the evidence of Sir Allan McNab. There is but one single point of inquiry ; where was McLeod on the 29th December, 1837. If a man cannot defend himself upon such evidence, where, oh where, I ask can he be safe if accused of murder ! Where is the man in this audience — who is there that can look back, and say where he was on a particular night, and call to his aid witnesses, to show where he was 1 Is there not difliculty in this ? Is it not hem- med in with difficulty! It seems to me to be extremely difficult; and I regard it an outpouring of Divine benevolence that has put it in the power of McLeod to show so satisfactorily where he was on that memorable night. I ask if we have not first shown where he was not, and secondly where he was ! Will it be the argument of our learned adversaries that they were all implicated in a lie ! 1 MCLEOD'S TRIAL. ZTi iiild be ■being ; I innke ff it ; It f those scharge ay liian a Lock- gistrate do his 1 forth a night be raced by e of Mc- oeen ad ;e which persuad- estimony ^e sent it jsecution ! in Cana- es within ire ready by charg- iselves in sent, and w submit but here nothing as to the stimony. from it, There the 29th here, oh Where is , and say nesses, to not hem- difficult ; las put it le was on where he umcnt of a liel I consider that it depends upon the state of moral ft^cling which per- vades the licarls and consciences of those men who speak, wliich determines the measure of credit which you will give to their sto- ry. If a man feels that he is a felon — if he is conscious of being degraded — that he has taken tlie life of a fellow-being, and has just- ly forfeited his life : if he has broken his neighbor's house, and stolen his money, or committed any other ollenco which exhibits a man as degraded and simk to the level of the brutes; then, indeed, may you doubt the story which that man tells ; but think you that McNab of the army, or Drew of the navy, or McCormactk of the navy, feel degraded by the part which they took in the destruction of the Caroline 1 Do you believe the British Government looks upon them as degraded 1 Nor are they degraded in the eyes of the American people ; look over this vast continent and inquire of every single human being ; interrogate men of intelligence, patri- otism, and of consideration, and if you receive the response that they are degraded, then I will be willing to give up the defence. How stood these men'? Tliey say they acted in obedience to the orders of their Government : I will say they did ; but it is said that these men are degraded ! that they were volunteers in the perpe- tration of a crime ! Volunteers! Yes, they were volunteers at their country's call ; into that service every man to the niunber of 2,500 did come forth voluntarily, in defenre of his country. These then, are the degraded individuals ! subjects of Great Britain and her dependencies. I trust I have American feelings as well as other men around me, but I speak of Great Britain, and her Government, as they are ; if there is a country under the light of Heaven, whose subjects have reason to feel a conscious pride that they belong to it, it is that country — it is Great Britain, our own dear mother. To that country and her laws which have given distinction to mon- archs, statesmen, jurists, poets, arlisans, all will ur ite in render- ing her a just meed of veneration. No country can reflect more honor and glory upon her subjects — none desei'ves better the love and veneration, not only of her own subjects but of other nations ; and I ask any American, who claims to be a full sharer in this vast amount of national honor, which may well be accorded — descend- ants of British parents, who now have an opportunity to speak the same language before an American tribunal ; whether that is not the last country, where men hiding commissions under its Gov- ernment, and those under them, should feel degradation from obey- ing its orders. It is said they were volunteers : I have heard of other volunteers before. I will give you the memorable instance at Yorktown of the for- lorn hope who led he attack upon the works and fortifications of Cornwallis, Who held and occupied the place of Captain Drew! That forlorn Jiope was headed by LAFAYETTE — the forlorn hope of the American army was headed by Alexander Hamilton. They engaged in that perilous enterprise ; and because a little chosen band have ventured to volunteer in the Canadian cause, are they less entitled to the honors and immunities of war? Never — never! If n !■■ -ni 278 rjOULD's REPORTER. T^ecnusc Captain Drew at the sijofrestion AIcNab nnilertook this enterprise — be«;ause IMcCorniaoK, EInisly and Mosicr, uiuler- took voliMiliuily this enterprise, are tliey in the fsiimation of the world iTiurderers 1 Never — never; until you can degrade Hamilton and LaFayette to tlie level of murderers. Well did McNab declare to one or two of his friends, by whom the danprr of the enterprise was fully understood, "If you miss your aim a glorious winding sheet awaits you below the cataract." Navy Island iu scarcely a mile above the rapids which descend to the mighty cataract of Ni- iigara. It it: but about three fourths of a mile from Navy Island to that place from which no bark ever did or can return; the current passing at the rate of six miles an hour, ten minutes delay would have taken them wliere their fate would have been remedi- less ! Shrouded in darkness they put forth, and think you, when they encountered the perils of the deep, and of the darkness, and of the cataract, that those gentlemen wi!ose names have been men- tioned regarded themselves as murdererL' 1 If so, detract from the credit of their testimony. If when the tables are turned, and Americans destroy marauders, who dare to tread upon our soil, for the performance of those per- ilous entefprises you commend them, then you will commend these men. McLeod stands charged with murder. I wonder what would have been said by this coimtry and this government, if the Canadians had come forward and planted their standard upon Grand Island, in tlie Niagara River, and our militia would refuse to drive them off? What would be said to them if theyhad not hearts equal to the dis- charge of that duty ? They would no longer deserve the protection of the government ; but I will not dwell upon these circumstances. I know the reputation of these men is to be assailed, and I have only done it to show that so far from their being engaged in an en- terprise calculated to militate against their honor, it should, on the other hand, elevate it; for almost universally where you find a brave mar, you find a generous and a just man. The question then is, was Alexander McLeod in that party 1 Who has the best opportunity to know ■? Is it those witnesses who come here on the part of the government, or the men who were engaged in the enterprise at the time ! Col. McNab Avas a man who saw almost every man, and who actually knew a large portion of them. He knew McLeod well, and thinks he was not there ; he re- turned a list to Governor Head, and McLeod's name was not among the number contained in that list. Why was this list made out 1 I answer : it was because those who were engaged in the expedition had been engaged in a perilous enterprise. It had been successfully executed. They had returned, and having thus returned were entitled to the glory of the achiev- ment; for it was thus esteemed by them. It is among the common occurrences that those who have distinguished themselves in battle, and encountered dangers, should have their names enrolled in the archives of the government. It was for that reason that a list was made out j and I ask you whether the evidence of Col. McNab alone not, it. GOULD 8 RErORTEn. S79 lulertook r, iiiuler- )ii of the llatnilton b declare !iiterprise winding oiirccly a ct of Ni- vy Island turn ; tho tes delay 1 reniedi- ou, when ss, and of >een nien- , from the laraudcrs, hose per- commend irouldhave idians had and, in tho them ofF! to the dis- protection imstances. nd I have i in an en- nld, on the ind a brave lat party 1 lesses who who were a man who portion of re ; he re- not among luse those a perilous 1 returned, ;he achiev- e common s in battle, lied in the ; a list was Nab alone is not sufficient to ovc-tlirow the testimony of all those who have been hrounrjit forward, on the part of tiie prosecution. Next is Mr. Har- ris, Aiil-dc-Camp to Captain Difw, \\v says that he knew alniofl i;very man in the expedition, and hrlpcd to nialu; il up. He says that a list of the names was taken down at the lime of disembarking, and completed by another person who had it in oharpfe, and furnished to Col, McNab, and upon tliut list the name of Alexander iMcLeud was not to be found. Having disposed of these two points, I will dispatch another mass of evidence in very few words. It having been taken on commission, the questions must be general, and the answers are results ; they never can contain details — but they present llie great and leading facts contained in the case. What is that evidence \ It is that seven boats started on that expedition ; that a certain number of men went on tlutse boats, eight in each, except tliat of Drew, and that had nine, live reached the Caroline, two lay in the stream for a short time, but ultimately boarded the Caroline. Two failed, and were oblifred to return to the Canada shore. They landed on lUick-horn Island, for a time. The oarsmen were not good, and they fell back, but finally made their way, and landed on he Island to rest. They l)ad to contend against the mighty ciurcnt of Niagara; six miles to the hour, to keep from going over the falls. I ask you whether the men who had a hand in making up this par- ty, and who knew Alexander McLeod, can be mistaken I Aio they mistaken 1 Can there be any doubt, when they say th' / know not where he was ! But one thing Uiey did know : " he was not on board the boat which I commanded; ne was not in the boat in which I went; that I do know." And that thing is the very thing which yo\i are desirous to know; and, knowing it settles and decides the fate of Alexander McLeod. It is the only thing to understand — the only thing about which you need to be informed. Was he on any of those seven boats'? If he was, then your duty is plain, though painful. If not, then equally plain, and vastly more pheasant. You have heard the evidence ; it has been read before you ; it is the evidence of brave and honorable men, who have no cause to support other than that of truth. Believing them, then, there is no difficulty in finding that he was not on board the boats which left in pursuit of the Caroline. This one question, and this one only, re- mains to be considered. This is not material, except to show that he was not on the boats ; as those officers who composed the party, and who have given evidence, have fully shown. I will glance at this evidence very hastily. First, you will notice a little discrepancy in the evidence, as to the horse of McLeod. I presume that my learned friend will not for- get about the horse, and he is welcome to all he can make of it. I regard it as wholly immaterial whether he had a horse with him or not, because we have strength of evidence enough, independent of it. It has been attempted to show that Press speaks of a diflerent .ri f^ J filifltit i • J'i 1 lUilBi r^ t| ■.% ^. Vv^, o^. \t IMAGE EVALUATION TEST TARGET (MT-3) y ^ . .>. >^. V '/ /A Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 873-4503 V -^^ \\ LV ^ A ' ^^ 280 MCLEOD S TRIAL. time from that spoken of by other witnesses. In no other respect is it material whether he took a horse or not. It is enough that he went, whether with or without the horse ; but it is due to the case to say that you have heard the confession of McLeod, and his hon- or will tell you that, so far as it makes for him, it will be received. You have a right to consider it ; and having considered it, if com- patible with circumstances, and not contradicted, you have a right to believe it. McLcod says that he left after dark, having called for his horse ; he may have been mistaken, he had so often gone from Davis' to Stamford on horseback, as well as every other way. He had so freqnently passed along there, he may well have con- founded one time with the other. McLeod says he rode in the wagon with Press, to Stamford. That was his confession. He says his horse was hitched to the wagon. Mr. Press says that he got into his wagon, having spoken before to get in with him : whether at Davis', or at Stocking's quarters, he is unable to tell you ; but this much he does say, that he has no recollection of McLeod's having a horse with him that night. That he rode in his wagon, he knows. Archibald Morrison says that he first saw McLeod coming into his father's house that night, but whether he came on horseback, or otherwise, he does not know ; but he put out his horse, and brought it up the next morning. But he had put out, and taken up the horses of McLeod so frequently, while they were kept at the stable of Mr. Morrison, that even he may be mistaken ; because on that night, as well as on former occasions, he had put out the horse of McLeod. - Davis, the tavern-keeper, rememoers well, that on the 29th De- cember McLeod went to bed at his house, at about 3 o'clock ; that he rose in the evening, called for his horse, and started ; and that was the last he saw of him. It is due to Mr. Davis to say that McLeod had been there so often, and had his horse brought up for him, that he might be mistaken. Still this may be true, without in the slightest degree impeaching the veracity of Davis, of Morrison, or of McLeod. It would show that Press was wrong, when he says that there was no horse fastened to the wagon ; that Archibald Morrison was right about putting the horse out ; that McLeod is right, when he says he led the horse by the wagon, and that Press himself has now forgotten the circumstance that the horse was along. I make them welcome to either horn of the dilemma — ei- ther one, or both. They need it, and they are welcome to it ; this is wholly immaterial. I will show you the starting point. How does Mr. Press fortify himself. He tells you that he kept a public house at Niagara; that on the 29th of December he went to bear two passengers to Chippewa ; that one returned with him ; that he ma^^e an entry in his cash-book, because he has a partner. That entry shows that five dollars were paid as compensation for transporting those gen- tlemen to Chippewa. He cannot tell you, in the abstract, about making the entry, or about their paying the five dollars. One thing vA;, t T MCLEOD S TRIAL. 281 er respect gh that he the case id his hon- ; received. it, if com- ave a ripht viiig called often gone jther way. 1 have con- rode in the ission. He ays that he with him : lable to tell )llection of rode in his joming into )rseback, or md brought uken up the It the stable iiise on that he horse of [he 29th De- clock ; that d ; and that to say that )ught up for !, without in of Morrison, fhen he says it Archibald t McLeod is d that Press » horse was ilemma — ei- e to it ; this Press fortify at Niagara ; assengers to ! an entry in shows that g those gen- stract, about One thing he does remember, that he went to Stamford and Chippewa ; and as to the time, the date fi.xes it. It is like the entry of a name upon the register at one of the hotels in this city. Suppose the clerk should be called on to prove when a man was there, do you suppose he could remember writing every name upon the register of per- sons who put up there in the course of six months ? No ; but he would tell you this : When a stranger arrives, if he does not write his own name, I write it for him ; and I never make such entries unless they are compatible with truth. Further he cannot (ro. What does Press say 1 He looks at his ca.sh book and finds such an entry there, like those of a previous and subsequent date. Again he tells you that upon the following morning he heard of the de- struction of the Caroline. What further have we 1 We have a witness of whom I had no previous knowledge till he chanced to come from Montreal here ; we detained him on subpoena ; he proves that this William Press was a friend of his for v/hom he entertained a high respect ; that while in command at Chippewa, Press visited there and dined with him. After dinner, to pay the respect due to Press, he walked up with him to the head of Navy Island. That while walking up or down they saw the Caroline passing to and from Navy Island. The evidence is that she left Buifulo on the morning of the 29th. That she made two trips from Schlosserto the Island, and then made fast at about six o'clock in the -evening, and that very night she met her fate, by going down in a blaze over the cataract of Ni- agara. If Captain Stocking witnessed that boat, it could have been at no other time than the 29th ; if in company with Press, it could only have been the 29th. Now, I ask you, gentlemen of the jury, whether there can be any mistake as to the time when Mr. Press bore McLeod to Stamford 1 This is the starting point. Here we stand firm and unshaken. Here is the anchor of hope to which we will cling ; and I challenge the learned counsel on the other side to make this matter swing from the firm bearing that we have thus established. Press leaves McLeod at Stamford. Where do we find him then 1 At Mr. Morrison's. But the public papers have assailed the char- acter of this family. I am happy to learn from Doctor Hamilton of Niagara, that there is not a family of higher respectability in the vicinity. It is a family which has not escaped affliction, and has felt deep grief; but I have yet to learn, that it has shaken confidence in that family, or furnished proper occasion for the learned Attorney General to tear open the wounds which are scarcely cicatrized, by an examination of any member of the family. Now, does that family stand confirmed in any way further 1 We have brought the deposition of Col. Cameron, and when objected to by ofllicers of the government who conduct this prosecution, it did excite my surprise. I will not, however, repeat the sentiment I entertained, nor give further vent to the feelings which I suffered. Truth, justice —neither of them required that that deposition should be excluded. 36 ( I 4 t " 888 goucd's reporter. It was taken in presence of counsel on both sides. Col. Came- ron is a gentleman of high respectability, living at Toronto. He says he was at Chippewa when the Caroline was destroyed ; that he left in the morning ; that on his way he called at Captain Mor- rison's gate, and held some conversation ; he does not remember the substance of the conversation ; but it proves another fact ; that the news of the destruction of the Caroline must have been carried that morning and no other morning. Was he mistaken when he tells you that it was on the morning after that memorable night ! Was he mistaken when he tells you that on his way down the river he procured a trophy, and delivered a part of that trophy to Captain Morrison 1 Was that a matter of mistake 1 No, never. It is confirmation strong as holy writ. All point to the hour, and that hour alone which is material for the safety of McLeod. But, gentlemen, this is not all. Miss Harriet Morrison, when asked, where next did you see McLeod 1 says, "I saw him in the afternoon of the same day, passing by. Making a pause in front of the house, he exhibited a cannon ball, which I understood to have been fired from the Island." Does she stand confirmed 1 Let us examine and see. Young Gilkinson, an oflicer in the British service, says, that on the night of the 29th of December he slept at Stamford ; that the next morning, on his way to Chippewa, befell in company with Mc- Leod. They were both on horseback ; that, without dismounting at Chippewa, he and McLeod rode up the Niagara river; and the batteries on the Island were opened upon them. A cannon shot fell a little short of them, and one of the soldiers picked it up and handed it to McLeod, as a memorial of the movements upon the Can- adian frontier. Does not that go to confirm what has been said by Captain Sears'? He says that he saw him come there in company with another man, and that they were fired on either in their as- cent or descent. This leads me next to consider the evidence of the family of Captain Morrison. McLeod took tea there, and spent the night there ; remained there until morning and took breakfast there ; so says Mrs. Morrison ; so says Archibald Morrison ; so says Harriet ; so say all. If, after all this, you can doubt where McLeod was not, and where he was ; I ask where you find a foundation for that doubt 1 It is so strong and so overwhelming, that it sets argument at defi- ance ; and the case will set argument at defiance to effect its over- throw — it is right ; it is true ; and no man can doubt it. But there is another point of no little moment, fixing the time, and proving that McLeod was not at Chippewa. I have already alluded to the testimony of Gilkinson. I say he was away, when they say he was there. Is it likely that McLeod would go to Stamford and re- turn back at that hour in the morning 1 Gilkinson's testimony is important, as it proves the truth of what is testified by the Morri- son family. Here is a gentleman in our own State, Judge McLean, who slept at the quarters if Col. McNab, at Chippewa, on the night of the Col. Cnme- ronto. He oyed ; that uptaiii Mor- remember r fact ; that leen carried he morning he tells yon id delivered a matter of y writ. All erial for the rison, when V him in the ise in front derstood to rmed 1 Let lays, that on d ; that the lywith Mc- ismounting r; and the cannon shot ed it up and pon the Can- seen said by in company in their as- evidence of ■e, and spent ok breakfast orrison ; so as not, and that doubt 1 lent at defl- ect its over- But there ind proving luded to the hey say he ford and re- ;estimony is f the Morri- I, who slept light of thu MCLEOD S TRIAL. 2S3 •2nth December, and conversed with him in the evening, though we were not pcrmittpd tu show what the subject of this conversation was ; but this much wc have a right to show that, during the evening and morning. Judge McLean did not see McLeod at Chippewa, al- though he had seen him at Bulfalo, on the ikh December, and put forth his hand to shield him from the violence of a ruthless mob. It was natural that he should have inquired for him. If he had been at Chippewa, would he not have inquired* him out and seen him I Judge McLean tells you that after breakfast, between nine and ten o'clock, he left Chippewa for Niagara Falls, and on his way, in company with Doctor Foote, he met McLeod, and knew him. If this be so, it is in conformity with the tale told by the family of Cap- tain Morrison. Would not Judge McLean be as likely to know as any of the witnesses that the government Jias brought here to uphold this prose- cution '. A man who knew him well, and not shrouded in darkness — would he not have seen him if he had been there at the dawn of day, or at sunrise — or later in the morning, before McLean left the village, as well as those witnesses. Smith, Corson, and others '. I think you believe with me, that he* would have been far more likely to have seen him, having inquired for him, and being de- spatched there by the District Attorney of the United States, to consult with McNab. Would he not have been likely to find McLeod, if he had been there 1 Not having done so, proves that McLeod was not in Chippewa; and havincf met him at or near the Falls, riding toward Chippewa, puts it beyond all doubt. If McLeod is unable to defend himself on alibi, I despair of de- fence. If necessary to prove him at Chippewa, as was urged by my eloquent young friend, instead of his being at Stamford, it would have crushed us to the earth. Had he been accused of a murder perpetrated at Stamford on that fatal night, it would have been im- possible for us to prove an alibi with all this crowd of witnesses to swear, that at midnight they saw him at Chippewa — some of them within ten feet, others, at cock-crowing in the morning, saw him somewhere else ; «nd when daylight had streaked in the east, he was in a different place. Could they stand up against the overwhelming testimony of the Morrisons and those who corroborate their statements ? The evidence showing where he slept, where he remained, and where he might have perpetrated the crime, if he had conceived it in his heart, cannot be destroyed by that which attempts to prove him at Chippewa ; and I need not add one further consideration to what I have already stated, because the strength of our defence is so overwhelming that there is nothing of the prosecution left. It is enough ; there is no cause of doubt. It is enough that the doubts and probabilities are on the other side. Juries are usually reminded, that where a doubt exists, the prisoner should have the advantage of that doubt ; but I will make no such appeal to you, for the evidence shows that, so far from having par- ticipated in the destruction of the Caroline, he is as free from it as i^ 'lMl!,..i . M ,.#.^' i t 1 1 1 284 G0ULD*8 REPORTER. you, or the learned counsel for the prosecution, or those who have conducted his defence. Having taxed your patience beyond endurance, in discharge of the last duty which devolved upun me, I commit him to youi charge ; and if I have not deceived myself as to the duty which still remains for you, it will be as pleasant to you, as it will be pro- pitious to our country. ^ MCLEOD S TRIAL. •:sj m MR. JENKINS ADDRESS TO THE JURY. May it please the Court, Gentlemen of the Jury — Owin{j to the great variety of suhjcrls which the learned counsel for the prisoner have scon proper Jo dis- I'ourse upon, the remarks wlfich I may make, may be regarded as scarcely at» answer to tiiem. I had supposed when we appear in courts of justice, it was to try causes upon the facts established, not upon extraneous circumstances which do not pertain to the case. It is utterly impossible tliat a court or jury shall understand the cause, and be able to decide it, urdess they arrive at the facts through the me- dium of legal evidence. Much that has been said by the prisoner's counsel is addressed to men in England, not to Americans ; to those who will not decide the issue in (juestion ; not to this Court and this jury. I concede that it is proper to look at the position of the two countries — to the position of Canada, and of the insurgents upon Navy Island, and in our own country, for the purpose of ascertaining the po- sition of those concerned. But when wo go beyond that, we have ex- ceeded the bounds of our duty. • What, I would ask, was the situation of the two countries at that time ? We all know that Canada had been afHicted with ruptures within its borders. We know that some of her inhabitants, consider- ing themselves aggrieved, had been judged guilty of a violation of the law ; and they had been punished with death. The state of New York, and others, deeply sympathised with those who had been ar- rested. Was it not to be expected that there should be people in (Janada desirous and anxious to press forward and accomplish a revo- lution — that some individuals in the United States should synipathise and unite with them in accomplishing their design ? Is it not matter of surprise that from a republic containing 17,000,000 of people, only some two or three hundred should have been found congregated at Navy Island ? If there were no more, it is a cause of reproach to the British nation, that a handful of insurgents should agitate and alarm the whole empire. The facts upon this trial show that this is a peace-loving community, having no disposition to disturb their neighbors. There arc individ- uals here, as in other countries, who will sometimes unite with others in waging a fruitless war. When this nation was sympathising with the sufferers at the North, and those.who had created the disturbances in Canada were desirous of establishing there, a government like our own, is it not surprising that, among this immense population, so few hundreds should be ready to join in the combat? Prior to the burn- ing of the Caroline, and the commission of the murder in question, little excitement existed in the United States relative to the northern difficulties. It is true that a man by the name of Van Rensselaer was on the island, and had command of a few men whom he had gathered there. It is said they were there for the purpose of invading the Ca- nadian mainland. What had they to expect when a large British ar- my was assembled in their immediate neighborhood, and only some two or three hundred upon the island ? They could not expect to < • ; '* i •i ' 1 3 t v .1. 1 286 OO0LD's REI'OUTER. maintain thoir position t'or a moment. They could do l)iit little mis- chivf, and tliiTfCoro no extraordinary incasurcH on ilie part oi'CJovern- inciit \v(M-e ciillcd for. In a sinj^Ie hour the Finirlish army could have made ihcir way across the river, and captured every insurifenl. 'I'his is pressed into the snl)ject, as thouirh the Oanadas were in danjjcr o( hnw^ rcvolutioni/od ! To show that the ('anudlan authori- ties were authorized to make extra exertions to destroy this boat, then doatinjr ill Atneriean waters, the forces of tlie insurirents aremairnified from a handful of men to an immense army, and this litth; ferry-boat has grown into a vast en!i;ine of war. The only purpose for whirli this subject is pnisscd into this trial is, to form som(! sort of apolojiy thereby, for the destruction of that vessel. The Supreme (Jourt have decided that, for any purpose of justification, the warlike movements on Navy Island are to be laid out of the case. The vessel was seen at some two or three o'clock in the af:ernoon of the tiOth Pecember, 'IH, plying between Navy Island and Schlosser. Who saw her? Alexander McLeod. To determine whether the prisoner was there, it is proper for us to ascertain the bias which he had previously entertained on this subject. For if he were opposed in principle to the destruction of the boat, more proof would be re- (|uired to establish the fact^hat he was in the expedition, than if he entertained the opposite opinion. Establish the bias, and the man \s not far distant. I therefore ask your attention to the position of the prisoner at the time. He says in his confession that the Governor of Canada had requested him to go to BuiTalo and ascertain whether she was to be sent down to Navy Island. The consummation of that mission, which took place on Christmas eve, IK}?, in the city of Buf- falo, it appears from Capt. Appleby's testimony, was effected under strange circumstances. Such was the tumult which he excited, that he required the aid of Appleby and McLean, to escape, and he fled from the house-top. How he got away, not being a witness, I am .not at liberty to state. On the day following he returned to Chippe- wa, and gave intelligence of what he expected would occur, and made affidavits to the facts. What does he do next .' He says in his con- fession, that on the evening of the 38th he was about to go to Niagara, the place of his residence, and had advanced as far as the falls of Ni- agara, and there received information that the Caroline had left, or was about to leave, for Navy Island. That he returned and informed WcNab that she was about to come down. Did not that man feel some interest in the transaction ? Was he not essentially in the em- ploy of the Government? Surely he was a spy. And most admira- bly did he perform his duty. What next? On the morning of the 29th he, with some others, went into a boat and passed round Navy Island, for the purpose of reconnoitering. I would ask, had he not some motive in view? Surely it must be so. He felt extreme anxi- ety to know when she would arrive — and for what purpose ? To de- stroy her the moment he could have an opportunity to do so. Why was the prisoner at the bar spending his time at Chippewa ? For what purpose? — was this his residence? No, it was not for ordi- nary business that he remained there. Had he any such business that appears in evidence before us here? For what purpose, then, was he renftining at this place ? It was for the purpose of carrying MCLEOD'S TRIAL. 287 little mis- ()i'(i<)vrrn- noultl have iTcnt. as were in tin aulhori- i boat, tlicii nmai^nirinl ! ferry-l)oal [! fur whifli of apology (3o»irt have movements IP afternoon il Sclilosser. ivhether tin- as which he ere opposed ould be re- , than if he I the man i:^ lition of the Governor of whether she tion of that city of Buf- fectetl under 5xcited, that , and he fled itness, I am d to Chippc- iir, and made in his con- ) to Niagara, falls of Ni- had left, or md informed lat man feel y in the em- rjiost admira- rning of the roimd Navy , had he not xtreme anxi- )se? To de- so. Why pewa ? For lot for ordi- iich business urpose, then, of carrying the project of destruction into execution. Had she been found at Navy Island, it would have been a diiiereiit (juestion. He kwv.w that she was plylnfr between that island and Srhloss(T. He saw her cross to the island twice and back, and at ni^rht sin; let ufl* steam and laid up l)y the American shore. Now, I ask you, where is McLeod when the boat is safely moored at Schlosser I He had been round the island in the moriiintr, and a number of witnesses have spoken of the fact that the boat was there laid uj) at the dock. Now, would you not naturally expect when a man was so anxious as Ik; was to accomplish the mischief — the man who hud been a s])y at Ihitfalo — who had ukkIc alfitlavit — who had returned from the Pavilion at the falls — who saw her passing back and forth, in full view — who was found in private consnltaiion with the commanding olliccr of the expedition ? ^See how faithfully the bent of his inclinations tallys with the fact! Corson swears that on the afternoon of the 2\hh, he was in the store of Mecklin. That the prisoner Ca/it. Drew and others were there. They were not sitting in the business part of the store, but in the back part, surrouiid 1)0 taken, lihinls, tluty luul (iiil iiol 1 li;ive done. 1(1 seen tlie prisoner he- csrape IVoin I retoguized , hut turned d it uhout a il was thrnst ed oU" hy ii uneous sight i next day — liin, was Al- )ss-exaniina- r MeLcod"f said, that he ievcs that it len the lif^ht !Ct liirf coun- would ini- luch was the leath. Oap- s impression t he was the ited to make that all this not believe and now he es. I agree a man does When a man once that it ay that it is muel Drown, went on to re the oppor- dislinctly, ol .w him there re the benelit of the light direrlly, yot he could sec the form of the face. They in- sist, on the part of the prisoner, that this man is impenclwd, for if they did not' insist on that, — the proof of one, if helit ved, in as good as twenty. Now, 1 ask yon, if a nnin who is a humhie niun— a plain farmer — appears \ipiMi the stand without disguise, and seems willing to tell his simple story, they call upon a witness to impeach him, and to whose testimony I shall nsk your attention, they call upon a respectable man living in the vicinity, and what does he sav '. After they had taken him, he did say to his brother, if they could ilot get a bill against .McF^eod without his testimony, tlu-y could not con- vict him with it. This witness, Mr. Hates, says thai Drown Miu< 'if ono OOUr.D tf nEl'OHTF.K. more than ntio linlf (»f it rrlntrd to ihnt wliirh did not cxiHt in tl\o cnsr. Stril^f ont timt whicli (Idch not pcrtiiin to t'lo vhhc and wciirli tin- rv- iii:iiiidiT ill the hcuIoh of iiitcllcrt, and Hcoifit is cntillcd to iiiiicli con- sidrration. I iiiiofit lis wfdl h'TP reitiark tlint llic lour ^vltncs^rs wliorn we lir«l called to the Htaiid prrtaiiiiiisf to this sulijcct I i<'lt tho!**' nj; (lone so I •lial)lo \n the I liavr odiuKi lich h(i tosti- il givr conl'i- l it wnfl jHir- I miinncr and node of cross nd 1 mean tn irow-bcat Uic vcrc the lives any counry, istions in tlir ations, sneci- imcpscs who aUc these re- life of a wit- t a loss to nn- t story which collect. The lerc, and that I cut out, and )ticcd him to infifs, and no inst that city, the Caroline, that boat. It ! uttered over o not wonder ould consider \o were enga- mff done that being at the it act of which ask you then I with that of to that which jury would be isince npon it. Will ,) jury nil lierc aufi listen to nil this nlioiit (•(•nil»iiiali(.iis ? Shall (•.)Uii-i'| ask a jirry I'l Itrlirvr ilicir ou ii xiatcninii.^ ami call w itneH«(■^ t'» iii\|)('acli ruiil Ki't down oilier \vitin'-Hi s as mil to he rreditt'd, at \\i Imve wilut'-^Hed on thin oivaKion '. 1 1 |lial is lo \w ihv ruHP, ihe sooner our rinlil Imt it is yon;' duly, lint wlun yon have weiuhed it yioi are not to eon-ider the witness ini|>e,i, !ici!. liU'rely Iteeanse eoiitiMl have naid so. Sni>|»onged to any of the societies which have been mentioned. Is it pos- sible that a society so saps the moral;? of men as to render them en- tirely unworthy of belief { If that be so, we have got into a new sphere of action in relation to the administration of the laws of the land. The witness yet resides in Canada, he is a farmer — a man well known there. He set out for the purpose of coming to Buffalo, about the time of the commencement of this court, and ascertaining that the trial was about to come on, though he had business in Buffalo, he con- cluded to return home, and wait till the trial was over. He is not one of those who might be liable to the charge of want of integrity. He resided in the very village and house where Davis did. The vigilance of the learned counsel, through the particular friends of the prisoner himself, and the whole British Government, would surely have been able to produce those men, or to have taken their testimony on commission, who could impeach this witness, if he was in truth liable to impeachment. He came to Chippewa, and there as- certaining the fact, of the trial being about to take place, and being unwilling to come, returned to his home. The first week of the court having passed over, he again went to Buffalo, to attend to his business. He was discovered in Chippewa by a person who crossed the Niagara, and who, taking a different route, was ready as soon as the witness rose from his bed the uext morning to subpoena him to appear in this case. Now, the learned counsel says this was all a trick on his part. I ask where ii the evidence of it? Is there the least evidence of the fact ? If so, I have failed to hear it. He did not know the eflect of a subpoena, other than it laid him under a penalty of fifty dollars, and he concluded to send his horses back by his brother-in-law, and come to court. And this is made a subject of impeachment, as though what he has said under the sanction of an oath is nothi.ig worth. I never have seen counsel driven to such extremities. His whole story is, from the beginning to the end of it, a continued chain of transactions bearing the impress of consistency. M >'fi •294. ooiild's REF0RT£R. Lft the (Tentleiimn's arirnrnpnt l)e published, as it will be published, iind 1 am glad that an arrought out his horse, do you not suppose his testimony would be brought to bear upon this trial, personally or by deposition? Ye«, he would have been the first man. Here Mr. Jenkins recapitulated the substance of Parke's testimony, bearing upon this point, and then proceeded as foUoAvs : Whenever you find two witnessfs essentially corroborating each other's testimony, and establishing the same fact, and there is no in- herent evidence of its untruth, it gives to it a force in arithmetical progression ; if you add a third it is stronger, if a fourth, it contin- ues to increase in strength. Novv% the force of this testimony, all tending to one point, is stronger and of higher verity than if sworn to by one only. Henry Alcj'^ers, of Canandaigua, swears that he saw McLeod at the falls of Niagara, where he stopped at a house on the north side of the road. He had previously seen him at St. Davids; someone asked him who shot Durfee ? McLeod said, "By God, I am the man." He then sai;!, " That is the pistol that shot him," Now, how do they seek to impeach this witness ? He is made to go the grand round, to ahovr where he was born, and where he has lived. I would not have said a word, if the learned counsel had not recommended you to look and see whether the witness had pursued the most direct route to get K) the several places named. I have no olijections to your looking at tlie map, but those who are better acciuainted thari my learned friend or myself with the points at which he arrived, say that the route was the most direct that he could have pursued, except where he varied it in order to get better sleighing. And think you, — when that learned irentlemen is surrounded by many high in station from Canada, — think you they would not be called on to testify and show the falsity of this evidence in that respect? Gentlemen, I am astonished that my learned friend should have gone so far beyond his ordinary prudence — but he cannot blind men, with things so feeble and futile, upon their face. ■'•fKrt, Mcleod's trial. 295 published, [)ul)lislicd ; ut this cn- ['coniplish- iiity to his ivvs of our of submit- ved or not. lys that ho lis brother for? Was in conver- ; mind that 3 attention, avy Island ing was to to know of ying, brin»ig certainty ; but still it is evidence and you arc bound to allow it some weight. But I do object against goinjr out of the record to impeach this man, for 1 verily believe he has told the truth, as nearly as he was able to set it forth. The witness says, that McLeod had a sword and a pistol. The stock of the pistol was painted red. I care not whether it was or not. Me saw it and it was stained, no doubt, whether with the blood of Durfee, or of any body else, or not I)lood at all, it is evident that the prisoner Avished to hold out the idea that ho was the man who had committed the deed. We introduce this man, for the purpose of show- ing that McLeod confessed himself to be on this excursion. When we have taken the testimony to that extent it has performed its oflice. Gentlemen, add that to the foundation work, which has been erect- ed in this case, and let the learned gentleman produce all the force he can against it, and we will see whether he has been able to raze its foundation. Calvin Willson was acquainted with the prisoner, who in reply to a question from Raincock said there was one thing which he did know, and that was, that one damned Yankee got shot on the wharf. Now, they have undertaken an impeachment of him also ; and they have shown by Alexander C Hamilton, a lawyer of undoubted respectability, that Raincock had left the place before the time allud- ed to. But is it not possible that he had gone to the American side and was back there on that occasion I Hamilton swears that he ran away for debt, and others say that he e Canadians t arms at all. the habit of ,o do this du- any where, ling- moleod's trial. SOO We now approach a more important jiart of the prisonrr's defence — the depositions. A conirnission is made up here at home, by the icHpectable counsel, to examine; witnessed in behalf of the prisoner. Ill making up these ciuestioiis, the counsel on the j)urt of the prisoner makes out the ordinary questions, called interrogatories; and the counsel on the other side make out the pri)por cross-interrogatories ; and they are sent to Canada, or wherever the witness resides, and these interrogatories are read over, and the ansu(!rs of the witness taken down. Now, you perctiive, yon cannot change your cross- questions to meet any other thing wiiicli the witness holds out, l)»it have to examine iiiin on the old (juestions. Of course therefore the witnesses can screen themselves from saying many things, tliat the counsel would think proper to in(juire about, were the witness on the stand. Why, suppose tliat the learned counsel had been rc(iuired, in any manner, to draw up written interrogatories for the witnesses, he has examined — how much would he have found out ? Very little. You cannot go into a cross-examination, where depositions are taken, that shall elicit important facts, many of which would otherwise be l)rought to light. I grant that the testimony, on the part of the party issuing the commissions, may not be as forcible, yet the cross-ques- tioning of the testimony amounts to little or nothing. In these com- missions, do you find tlic question put, who were on board these boats? You do not. If the witnesses were on the stand, they would have to answer, who were there ; tliis matter was of the utmost im- portance. Suppose you should come forward in a court of justice, and swear that you did not see the Attorney (ieneral on board such a boat, that night', on the cross-examination, yon would be asked, how many were there — who were there. If the witness could give in the names of all on board and say that he knew them, and give their number, and all these marks which make the truth, what would be the ell'ect ? To carry strength, and force, with sucli answers. Now what is done, in this manner of testimony ? You find witness after witness, swearing not only strongly, but positively, that the prisoner was not on board the boats, at all, when it is utterly impossible, posi- tively to know whether McLeod was on board or not — utterly im- possible : it is true, they might know he was not on board the boat where they were ; but, to know that he was not on any of them, is utterly impossible. Mr. Spencer here interrupted. They have not said that ; but the witnesses on board each boat — have declared that he was not on board the boat which they were in. Mr. Jenkins. That is not very important; if they desired to show with certainty that the prisoner was not on board the boat, they should have asked the question, themselves ; it would brace up the residue of the testimony beyond all description : every man would see if they knew those on board and could describe them, that McLeod was not among them ; and their testimony couhl be relied on ; but let them put the naked question only, and it shows that these persons could not be satisfied with a degree of certainty. Mr. Spencer. The question is put and answered, whether they knew every man on board the boat. Mr. Jenkins. But if the answer was made that they knew the lil .J t i v.* 1.4 1 300 GOULD 8 REPORTER. l\ names of all on board, would it not add to the testimony ? If they could say, " I knew all on board, and MeLcod was not there," — docs it not atnonnt to nothinj? at last? And, I will show you that these re- marks are strictly applicable to the position I am al)out to take. The learned counsel did anticipate me — in sayinjf that it would be iirged by the counsel on the part of the people, that the parties to a crime, are not such as can be relied on in a court of justice, and I do admit, I was pained with the praise, which the distin<>uished counsel thoucrht proper to attach to the transaction of these persons in this dark trage- dy. Will the persons who are engaged in this business, be left to the tender mercies of those who, in the night time, invade our borders and attack in this manner our boats ? when they know not who are on board how many private citizens -who go and raise a gang of men, putting into their hands the most dangerous weapons, who cry out that they will " give no quarters," who shot one man on the spot, and how many others they killed, no man can tell ; and after they had done all tnnt, the learned counsel compares them with the heroes of the American Revolution. This is elevating them to a position to which the human mind can never give its assent ! Shall those who commit an act of which they are ashamed, be thus praised, and in an American Court? It is to me, absolutely and exceedingly unpleasant. Did they not know they were crossing the important line that divides two nations jealous of each other? Did they know when they were I'lbout to commit this murder, how many fathers they would ren- ner childless, and how many wives widows ? Not, at all : and yet they were willing to go and tire indiscriminately on that boat. Now, I say, a man who will do this, is as hardened a villain, as. ever swung on the gallows ; they went and raised the murderous knife in the night- time, with a view of slaughtering those people indiscriminately, and without any cause whatever ; and yet, it is claimed, although they possessed feelings thus hardened — it is said by the learned counsel op- posite me, that you are to believe them, as much as though they had not been parties to the crime : it is hard work, and never, in this coun- try or in England where common sense prevails, can it be assented to. Depend on it, the man who has participated in such a transaction, has lost his moral sense, and will be more easily swerved from the truth, than the man who is not thus stained with the commission of an evil deed: and, gentlemen, I would prove this, in the very witnesses them- selves. The law on this subject is this — that a party to a crime, although he turn states-evidence, cannot alone support the prosecution for a criminal offence, without strong corroborative circumstances, for the purpose of enabling a court, to authorize a jury to bring in a %'erdict of " guilty" against the prisoner. But if this testimony is of itself entitled to but loose credence, witnesses have been called against them ; and I therefore insist that the testimony of these men should be looked into with great care, whatever it might amount to, were it not thus circumstanced, by the fact of their connection in the guilt of the prisoner. I will take one example — and that is the boat in which the commandant. Drew was himself; and the first question is this — it appears from the evidence of other witnesses, that Drew is in Canada; why is he not produced here? The man who must have known McLeod better than any other person — why is not the commandant f^ MCLEOD 8 TRIAL. 301 ? If Ihcy "c," — (Iocs it thcso re- akc. The le urRCfl by crime, arc lo admit, I icl thouirhl lark traire- 1 left to the ur borders who are on ng of men, lo cry out e spot, and ■ they had heroes of position to those who , and in an impleasant. ,hat divides when they would ren- 1 : and yet at. Now, I r swung on 1 the night- nately, and liough they counsel op- gh they had n this coun- assented to. saction, has m the truth, n of an evil esses them- to a crime, prosecution cumstances, o bring in a mony is of been called f these men ; amount to, iction in the t is the boat t question is t Drew is in have known commandant of the boats —the man too, who was in company with the prisoner iliat very afternoon, and in whose boat the prisoner would be likely to enter -why is he not on the stand, and recjiiired to testify? In this country every thing was at the command of tlie prisoner, and |)ersons from his own country came here to watch the trial ; why was not Drew authorized in that way, and re(iucstcd to give evideiico, as to whether he saw the prisoner at all or not ? Remember that the prisoner, un- der the advice of his able counsel hero, and perhaps e(iually able counsel in the Provinces, would not have called on men who were able to swear against him. Gentlemen, depend on it there is acute management in this case ; that they have not called on him, to testify ; if he could have sworn that the prisoner was not there, he would have been the first man pitched upon, and would have been called as a wit- ness ; but he was not. The second in command, Harris — Mil. Si'KNCER. — There was one other of the officers of the navy, who was in the boat together with Drew, who declined to testify, for the reason that he would not give any countenance, by giving testimo- ny, to the right of trial before the courts of the States. Mr. Jknkins. — I presume the counsel has been so informed, and that is about as truexifl^that the priscMior was not in the expedition, because he was at MH^sou's ; but I hope the learned counsel will not always be deceived with pretences so slight and flimsy; to save a man's life, it is true, he would not be sworn — he would not commit perjury, and therefore was not sworn. Who have they sworn out of that boat? The first was Harris, who was second in command ; he says there were nine in the boat he went in. Edward Zealand, who was in the same boat, says there were eight in it ; now, where is the odd man ? I suspect it was McLeod ; there is a diflercnce of one between them ; and how will they reconcile it ? At any rate, there is a con- tradiction ; and where is the odd man ? If they can swear with such certainty — one swearing that there were nine, and another that there were eight, in the boat, it seems to me that it goes somewhat to in- validate the force of their evidence. Put that in connection with the fact that Drew himself would not swear, and let us see whether, as an American jury, who are not placed below mankind in general, for knowledge and good sense, cannot see that there existed a conscious- ness that McLeod was a sharer in this deed of violence. Now, Har- ris says there was no man of the name of McLeod in the expedition — he knew every person — " I did not sec every person who embarked." " On their return home they went to their respective quarters ; I had no acquaintance with McLeod ; "I believe I was the last person who left her." Zealand says, when they came to get out, he jumped in- to the river ; I do not know but it may be that he, and the prisoner, had drank deeper than they should have done, and therefore were unable to perform their fiendish duty. Now, we come to the point raised by the testimony of Center. He swears that he threw a couple of carcasses, one into the fore, and one into the after cabin, and then came away. I should like to know how they burned, after the boat and he himself were wet. No man pretends that this Harris ever put any such article into this boat, for the purpose of firing her ; it is contradicted by the other facts sworn to. What is there further on this branch of the case ? It is t . #J i'!\i*J K ■K;; -. :.,• n ■ ft? 303 OOVLD*8 nEPORTRR. perfectly obvious, that when yon look thronirh the evideijre, niid ox- iitniiic it, with rcspcrt to thrse coniinissioriH, it ariioiintH at Ix-st t<> very little. It would luil be expected that they would be eareCul to iioijre who were there ; piddy and excited as they were. If a list hod been made (iftbosc? who were there, and MeLeod's name had been on it, they would have been the last to j)ro(luee it, in a VAyc of life nnd death. No sneh list wa.^ made. The people, when the temper of iho times has cooled down, will hold up the ])erpetrntors of this deed to the indignation of both nations. Yon perceive then, that the evidence from the coinrnission, and that of Sears, (h)es m)t amount to much. Now, how do they estal)lish their alibi ? On this poitit of the rase, I shall not detain you lonaroline. Now, Mor- rison swore with ecpial certainty that on that very evening, this same McLeod was at his house, and staid all night. Mr. Spencer. N6 — but on Christmas cr^cning. The Attorney General. No, Morrison himself corrected the statement, and said it was on Christmas eve; the Judge will find it so, b}^ reference to his minutes. Mr. Jenkins. I understand it so; when the question was asked what time he was there, he said Christmas eve ; that is Avhat T under- stood him to say; if it is wrong, you will correct it. If so, then, of course, the witnesses stand contradicted in one point, foi the reason that they swore that they remembered as distinctly that the prisoner was there on the 24th of December, as on the 29th : what is their recol- lection then good for? It is good for nothing. Inglis in his deposi- tion, states that he was a bar-keeper in Toronto — that McLeod came there the 31st of Dec. 18137, and staid there three days ; McLeod says that he did go to Toronto on the 1st January, 1838, and the next day was there ; although they had been at the expense of examining In- glis, his testimony was not read at all, and it contradicted that of the whole Morrison family, with respect to his being there, the 1st and 2d January, 1838. The depositions of these Morrisons, taken on another occasion, have been read to you ; what do they say? That McLeod came there with his horse, and that Morrison directed his son to put up the horse and supper it. The old man swears he knew nothing about the horse ; his wife and daughter swear that they knew nothing at all about the horse, except from the boy ; what has produ- ced this change? They would rather have it suspected that Morrison's \\\ J I '" MCLEOD H XniAI. 30N I t re, niul px- icst III very I to iioiice t liiul l)ecn bct'ii (111 it, of lit'«! nnil npcr of lli(! lis (lord to ic evidence o imich. f the case, Hliall leave to the re- ti) prove 11 e you not 18 the. most icrefore the :i uH almost he qaestion riortant one. Morrison's o ascertain orrisons, in •cember, he ippcwa, and Now, Mor- s, this same irrected the ill find it so, n was asked lat 1 under- go, then, of the reason le prisoner their recol- his deposi- cLcod came IcLeod says le next day amining In- that of the the 1st and taken on say? That directed his ars he knew t they knew t has produ- ; Morrison's fumily did not tell the truth, than that MrLeod wont there on horse- back. Ill liin (lepositioii he says that he went on lniis«'i>ack liiinseil'; he says, " I j^ot up alioul hall' p;ist seven or v\'^\\l o'clock, yjot my horse, uiiumlcd him, and went to Staiil';ird in company with I'ress *' (n the cvaininatioii before the jinlije, he says he led tli<' horse and rode ill the wa<;on with I'nss: I'rci-is says he lias no rccolleclioii about the horse. Tiic jrentleinan says he reconciles it in this way — that McljRod hitched his horse bcliiiid the wajroii, and I'n'ss never found it out at all; is that possible? Not at all; if they were b-itlicred by leaditij;- the horse, remember that the feeble recollection of Press, who i'l brouifht here to j)rrss every thiiifr into service, would have remember- ed it as long as the fa<;l of Mclicod's beiii'jf with him; it is not to be forgotten ; but, there is somelliing more improliable than that with rcsjiect to this. Press is brought to fortify Morrison ; and when you come to ascertain the fact, Press's and (jaswell's testimony goes for less than nothing, in support of the testimony of this family. That it is not true in fact, is manifest. Press believes he went down to Chippewa, and at tlie door of Davis's tavern saw the prisoner ; thinks he mentioned to the prisoner that he was in a hurry. McTieod had a horse at Da- vis's, and still, in a muddy state of the roads and darkness of night, liC detains Press from home, and takes a nap, while Press is wait- ing for him; it will do to tell this to new recruits, but not to us old soldiers. Do you suppose he got Press to wait for him to take a nap, and when he got to Morrison's, he was so sleepy as to t:ike another? It is preposterous; men of sense see through the llimsy manocuvering of which this is composed. The Mor- risons say they usually go to bed at eight or nine o'clock : that night they were up till twelve o'clock ; the old man remembers one thing — that McLeod took a glass of sling at ten o'clock, but what they talked about, no man can tell ! Why, gentlemen, it will not do to prove an alibi by sucli evidence as that. They had heard that the Caroline was there, they say, before that time — Mr. Si'KNCER interrupted. None but the young lady entertained any thought of the Caroline's coming down, before. Mr. Jknkins. My recollection is as I have stated it; you will re- member whether it is true or not: the young lady says that in the af- ternoon of the 30th, McLeod returned to Chippewa, bringing a ball that had been fired at him from Navy Island ; is it to be credited that any man would carry a cannon ball in his hands, for the purpose of showing it to the young ladies ! Gentlemen, it is not so. A little farther back, and let us see how this alibi is introduced. The Caro- oline was burned on the 29lh of December; Cameron is shown to have been along there early in the morning ; and that he brought along a piece of this ill-ftited vessel — so anxious was Cameron to keep a piece of a vessel that had gone over the falls : that might all have been ; yet it was quite early in the morning that Cameron should get hold of it; it is not very probable that he would have got hold of it, and taken it down to Morrison so early in the morning. If Mor- rison had sawed off a piece, Cameron would have remembered the special anxiety of a man to obtain a little piece of wood ; and he would have been the last one of whom they would have for- gotten to ask this question — what does he say ? That on the morn- ! If' ■t m U' 304 nOIILD 8 REPURTIR. injf after tlio biirnirifr of the ('nrolinn, about nine o'clock, ho Miopprd lit J<»lin MorrJHoii'H i;iit(>, in front of tht; )iouHi! ncur Stanford, and that MorriHon rainc to the (rate ; " 1 thrn> iiad a ('onvcrHalion with hint of about fivr ritinutCH; I may have nH>ntion«!d th(t (h'Hlrnction of lht> Carolina to hiin ; I now ronuMnhcr the fact of having h(dd a convcr- i^atioti with MorriHon at that rniic." Now, if that nnin had taken the [minri to Hccuro such an article as thin, and the «)ld Holdier, IMorri^ion, pleaHed with it, had thought |)ro|)er to flaw it oil', Cameron could have remembered it. I ank if it doen not look an if thifl alibi wan manu- factured? 1 rejjard this defence as made up for the occanion. It is posHiblo, and baridy possible, that it is true ; but I regard it as made up for the occasion ; and all the circumstances, to which I have allu- ded, show distinctly and positively that it is false ; but when you place to it, the o|>posite testimony, it solves all these dilTiculties, What man can say that the force of the testimony of the four Morri- sons, and the other testimony to sustain them, can ever woi^h at all, against any witness positively showing that on this occasion, the pris- oner was on the ground ? I do not feel very much enlisted in this cause; I believe the pris- oner is guilty ; if he be, and it clearly appears so, remember not only this country, but England herself, holds you responsible, under the exaction of a juror's oath, in the presence of God, and the face of man, to pronounce him guilty. Should motives of policy be brought into the jury-box? No; look through the case, examine it faithfully, and it you are not convinced that the prisoner was one of those per- sons on the expedition, I feel confidant that you will acquit him. " I feel no apprehensions of his conviction," says the learned gentleman for the prisoner, and yet adds, if there be a doubt in your minds, ac- quit him : so say I. But the door of doubt should be shut up till ev- ery etfort is made for the purpose of direct conclusion; it is only in cases where the mind cannot come to a conclusion, that there is room for doubt: but begin with doubt, and so treacherous is the mind, that it will continue to doubt — doubt- doubt, and never come to a con- clusion. I ask you to take-up this testimony, and view it with all the powers of mind you have ; the people will see this testimony, and when the verdict is pronounced, it will be such as we can look into : then we can say whether it has been decided according to jus- tice, though perhaps it might have been more politic, to have decided it ag tinst the force of evidence. 'V \ \ \ 1 V i ^^ McLRoi>'« tiHai-. 305 ( Htopprd ford, iiihI witli hirii )n of tin' :i coMver- takfii lli(> Morrison, oiilil linvi! us iiinmi- nn. It in : iiH made have all 11- ttlion you lifTiciiUit's. )ur Morri- i^h at all, [I, tlic priri- 3 the pris- ir not only under the the face of he hro»i|a[ht ; faithfully, those pov- t him. " I gentleman minds, ac- np till ev- is only in re is room mind, that to u con- vith all the imony, and c can look ing to jus- ive decided THE ATTORNEY (JKNKKM/^ ('r.OS[N(! AODURSS. May rrri. i:\sR Tin; ''n'n'r wit (Jk^sti.f.mkn nv tiik Ji'hv: Worn down with the Jaliors of this c ■'•^>\ I nmciillMl upon at thin late hour lo lirar lip, not ni,'iiinst llif iiilriiiMc merits of the < ,,:i(i, hut auaiiist the powei*- fill elo(|ii(Miee and the (jreiit prr^omil inlliieiiee o( 'h'* eoiintei for the prisoner — to hear up this «•«•«' under my own latirfue. and <>x- liaiisted ii« you are hy this Iriiil, whieh lm< h en of so irreiit extent, aifainst false issues, wliieh the in(t(i(i^cl lins hern loo sue- c United States. When he was arrested for that act, and thrown into prison, and our government complained of the proceeding, what was the reply of the Britisli ffovernment ! — " VVe cannot interfere — our laAVs must be respected." That answer, as far as the law went, was conclusive and our govern- ment acquiesced. The same answer is equally applicable and equally conclusive now, and the principle on which we acquiesced then, compels us to insist now. But so far as this was an act of war, that question has also been disposed of by Great Britain. When she seized our citizens taken on her shores, she tried them in her civil courts, and she condemned some to be executed and feonie to be ban- ished. Yes, gentlemen, our citizens have been thus treated, and the wives and cliildren and brothers of those men have kneeled to the government at Washington, again and again, imploring that some- thing may be done to procure their release from foreign bondage ; but they have been told that we could not interfere. Shall not, then, liie same laws which bind us from interfering with those who tres- pass on their soil, be equally imperative and binding when the sides are turned, and their citizens trespass on our soill During this dis- cussion, gentlemen, your attention has been directed to some few in- stances, supposed to be analogous to this case. I will not detain you at this late hour, but I cannot allow an occasion of so much interest here and elsewhere, to pass without one word with reference to these instances, which are cited. We are reminded of the case of Flori- da ; a protracted system of aggression and annoyance continued there for more than three years. At last General Jackson, compelled by the very extremity of necessity in the defence of our frontier, pur- sued the fugitive Indians beyond our boundary into the territory of a nation at peace with us. What was the result 1 Why as you all remember, gentlemen, the subject was brought before Congress and referred to committees of the Senate and of the House of Represent- atives. These committees, a majority of which were the personal and political friends of General .lackson, then covered with fresh lau- rels, the darling of the nation, were compelled in spite of their person- al admiration of the man, to declare that the act was an unlawful asf- gression upon a friendly nation. Why then is the case so totally dis- similar in every particular, brought up as a precedent on this occasion^ Again, we are referred lo the case of the Leopard and the Chesa- peake. It is the very case I would select to prove the correctness of the decision of our Supreme Court. The commander of the Leopard MCLEOD S TRIAL. 309 iffht. If it icre will be deed, if it ly openiniT, Chippewa, 'y an indi- ion of our n only say, ir as the ef- he refused ia, for tak- hen he was trovernment the British respected." our govcrn- and equally esced then, of war, that When she in her civil lie to be ban- Lted, and the 3eled to the that some- n bondage ; all not, then, e who trcs- sn the sides ring this dis- some few in- jt detain you uich interest ;nce to these se of Flori- itinued there ompelled by rontier, pur- territory of y as you all Jonjrress and )f Represent- the personal ith fresh lau- their person- unlawful ag- ;o totally dis- lis occasion ? d the Chesa- ►rrectness of the Leopard made an unprovoked attack upon the Chesapeake in time of profound peace. Our government complained to Great Britain of the outrage, and demanded that the commander should be punished, and he was punished by being removed from his command. The learned coun- sel asks, with an air of triumph, " Could that man have been tried here '." Passed all question, had he been found here, he could and would have been tried and punished here — else the demand upon England for his punishment would have boon an absurdity. Else an ofibndcr in such cases should tlee, not to his own country, but to the offended nation, where alone he is protected from punishment. In that case the British Government disavowed the act, in this it has not. Can the views of the British Government alter the nature of the act, or effect the power and jurisdiction of our Courts ! Our Government declares it to be, not an act of war, but an act of lawless violence in time of peace. The British Government agrees it was not an act of war, but insists that it was an act of justifiable defence. The question of the lawfulm'ss of the act, which is the point of dif- ference between the two Goveinments, is one which belongs peculiar- ly to the judiciary ; and if the executive opinions of either Government are to influence us, shall we not be controlled by the views of the Executive of our own Government, rather than by the groundless assumptions of the Executive of Great Britain ! Mr. Spencer — The British Government say that it was an ex- ertion of force, defended by the circumstances, and declare that the orders given by the Provincial government, received their sanction. Attorney General — And when our Government admits the cor- rectness of this assumption, it will be time enough for our Courts to take notice of it. The United States have jurisdiction of this matter as an Executive, not a Judicial power ; the acts of the Executive are binding here ; if to-morrow, at Washington, tliey make a treaty in which it is stipulated that the prisoner is to be delivered up, his chains fall from him. One word more ; although I am conscious I am trespassing ou your patience, permit me to say one word more before I leave this subject ; for another opportunity may not occur to vindicate the course of our State. It is false that the authorities of New York have been delinquent in reference to these transactions ; the authorities have done all they could. Governor 3Iarcy issued his proclamation, he went personally, and it will be obs rved that the information of the acts of the insurgents arrived at Albany about the 16th of December, and there was but scarcely a week before this catastrophe occurred. I stand boldly here and say tluit A"ew York has done her duty, and her whole duty in this case ; her Sheriffs, her District Attorneys, and her officers have done their whole duty. At the very time the event took place the excitement was almost quiet- ed, and but for this foul and fatal deed, all would have gone of! peacefully. There is not the shadow of a cause of complaint against the State, that she has not caused her laws to be executed, or against the United States, that she has not been able and willing to fulfil, to the point of honor, all her obligations to her friend and ally. Mr. Spencer — I take occasion to say that neither Mr. Bradley nor myself have said one single word, arraigning the United States Gov m ■ 1 ' 1 i { \ k !» 310 GOULD S IlEPORTER. ernment or the Government of the State of New York, in this mat- ter, for omission of duty, but have confietl ourselves expressly to those participating in it. Judge Gkiulev here intimated that the Court would adjourn until to-morrow morning, and the learned counsel suspended the conclu- sion of his remarks. EIGHTH DAV. The Court re-assembled this morning at a quarter to 8 o'clock, at which time many ladies were in attendance, and the court was completely filled in every part. As soon as the jury had been called and the court had been properly opened, the Attorney General re- sumed his address to the jury, in which he was interrupted last night. He spoke as follows : Gentlemen ot" the .Jury : Wc have established that Amos Durfee was murdered; it now remains for us to show by whom this murder was committed, and whether by the prisoner who is charfred with it. Let us first, look into the circumstances which immediately preceded this transaction, and in this manner explain something of the position of the parties, and see if there arises a probability or improbability as to the prisoner's par- ticipation in that transaction. We have from him an account of himself the previous day ; he tells us that the night before this he started from Chippewa to Niagara; he had proceeded as far as the Pavilion, when he was informed that the Caroline had come down, and although it was then night, he mounted his horse and went back to Chippewa with that important information ; he goes to the head quarters of the commander-in-chief, Sir Allan McNab, and informed him that the Caroline had come down ; the reply was that McNab could not act merely on her coming down. Act howl The subse- quent catastrophe shows. He tells you that before daylight he fur- nishes a crew of eight persons, and they went round Navy Island, to investigate, in order to furnish materials on which Sir Allan McNab could act : that he did not lind the Caroline till two o'clock, when he found her coming down, and passina- from the Island to Schlosser, and from Schlosser to the Island. What does he next do 1 We next discover him at three o'clock, P. M.; we find him, with closed doors, in consultation with Captain Drew, McNab, and others. He had exposed his life to peril the night previous by shots from Navy Island ; the great fact has now become developed, and the chiefs were assembled in counsel. You are told that this is very improba- ble, that they would be collected in a counting-room or a store, to consult al)out matters of this kind. Under other circumstances, it would have been improbable ; if the plot was some open and gallant act, you would have found them at head quarters, in their places consulting on the measures to be pursued ; but it was an act of an- other kind — a midnight incendiarism ; and they had met thus ; it would not do to be collected in any other manner. It is in perfect keeping, and throws light and confirmation on the case in all its fea- tures. They were met in consultation, there, at three o'clock ; and tlenK lieve it is at th( man. I testin was Ei^ at di the c It is Thef morn the s is tesi a moE been 111 MCLEOD S TRIAL. 311 m 1 1 this mat- (prcssly to journ until ;he conchi- 1(1 the fletermination to desti the 1 8 o'clock, court was been called jeneral re- d last night. low remuins ad whether lok into the ion, and in ies, and see isoner's par- account of fore this he is far as the :omc down, ^vent back to the head [id informed that McNab The subse- light he fur- vy Island, to illan McNab clock, when to Schlosser, t do 1 We with closed others. He s from Navy the chiefs cry improba- )r a store, to imstances, it 1 and gallant their places ,n act of an- Tiet thus ; it is in perfect in all its fea- o'clock; and then and there was the desion and the rlelermmation to destroy the Caroline, fixed upon. You find the prisoner then retiring from his council to his bed ; was it all then so quiet and peaceful 1 Had the great object buen achieved, that all his cares should be thrown aside, and he quietly retire to rest ! No : that was but to refresh his na- ture for a night's expedition to destroy the Caroline; all this is in keeping. If any man on the border would have engaged in it, it was that man ; you find him busied about. and consulting immediately be- fore it was carried into execution; you find him on the spot equally busy after the return of the expedition. If we should go no further, governed by the laws of motive which regulate the conduct of men, we could all say that the individual would probably be found in this expedition ; these facts alone establish a sort of presumption of it. We next produce a witness from on board the Caroline, who was there during this fatal and dastardly attack. We find one gentleman, who had seen him but a few days before, who knew his appearance as it then was — for men change in their appearance from year to year — • and if you produce a witness who has seen an indidividual a year be- fore, he may not be able to say it is the same man. We produce a witness who had seen him but a few days before ; he says that when he opened the door of the companion way, to escape, he saw the prisoner,who made a thrust at him with a sword ; it was but a moment, but he believed then, and had no doubt but it was the prisoner, so the next day, and the day after. Thiswitness, you will recollect, was the captain of the boat — Captain Appleby ; he was inquired of whether he would -now swear that this was the individual ; he says " no," four years had passed ; the circumstancfes under which the prisoner had lived and acted, had changed, and in human probability, his appear- ance had changed. I might refer to the sickness and confinement of the prisoner having changed his appearance ; but he swore at the time that he believed it was the prisoner. Up to this time, gen- tlemen, although the proof is such as would induce any of us to be- lieve the prisoner was the man, unless it was shown to the contrary, yet it is not conclusive ; the busy conspirator may have proved a coward at the pinch, and Captain Appleby may have been mistaken in his man. I will now call your attention to the next class of evidence ; the testimony of those witnesses who have heard the prisoner declare he was one of the marauders. Eight witnesses have sworn before you, that they heard him declare at different times and places, that he was there and participated in the destruction of the Caroline. Can you disbelieve this testimony ? It is impossible ; the laws of your minds will not allow you to do it. The first witness is Corson, who on two different occasions — on the morning after, and two or three days after, when he was standing on the shore with his spy glass, heard him make the expression, which is testified to by this witness. I will dwell a moment on this matter ; a most virulent attack has been made on Corson. This witness has been examined before us, and is well known to the counsel for the prisoner ; it was known that he would be here ; he was a neighbor of the counsel ; will you tolerate that the counsel should come here, i I 1 - % [ 9 312 Gould's aEPoRTSR. and by their own word denounce n witness, instead of bringing wit- nesses to impeach him, when they knew he would be here. They could not impeach him ; not a more respectable man lives in the country, and if his character could be touched by an impeachment, ihe wilnessess would have been brought forward, if there were any on earth ; the importance of his testimony we all know. What has been doni; I A single expression in his testimony has been caught at and ur^-ed upon you as improbable. He was asked who was pre- sent when he heard the prisoner declare, the morning after, what he had done on board the Caroline. He answered "It seems to me at this moment, that Caswell was there, but I am not positive." On bein:; further questioned, ho said that Caswell was present, and that they had conversed on the subject that morning, and naturally told each other what they had seen and heard on the morning after the destruction of the Caroline. Now the prisoner's counsel says it is improbable that it should have occurred to the witness then for the first time, that Caswell was there. It must have occurred to him in the morning when they Avere talking together. Well, what then J The witness used a common form of expression, which is not to be taken literally, and which did not necessarily imply that it had never occurred to him before. Now is there any thing in it, even if taken liter.ally 1 Caswell did not tell witness that he saw him there, nor had any question arisen between them, whether they saw each other or were there at the same time. For the first time the ques- tion was put to the witness on the stand — " Who was there {" It is the first time his mind is turned to that point, and not improbable It did then first occur to him that Caswell was there. We are here surrounded by many people, some of whom you know. We go home, and the scene passes away, and none of you will task his mind to re- collect who was here. Three years hence you are placed upon the witness's stand, and for the first time asked who was present here. You then go into your own mind ; your imagination calls up the scene, and for a moment you seem to contemplate the picture again — and face after face again is seen, and among them there is some dim glimmering of a face that you know — it may be imagination and it may be fact. But then for the first time it occurs to you. Why 1 Because then for the first time the question is put to you. There is nothing remarkable or inconsistent with our experience in supposing that it should for the first time have occurred to the witness that he saw the face of his acquaintance, Caswell, when on the stand the question was for the first time put to him. This is the only objection which the ingenious counsel has been able to discover in the testimony of Corson. And on such con- temptibly frivolous matter has he ventured, in his desperate zeal, to charge a well-known and respectable citizen wit!' "A^iiiul perjury. But, gentlemen, if this unimpeached witness is to be believed, he establishes, not only that the prisoner on two occasions, in the pre- sence of numerous persons, boasted that he was one of the destroy- ers of the Caroline, but also the all-important facts that the prisoner was not at Morrison's at sunrise the next morning, but at Davis's ta- vern in Chippewa. H. Mcleod's tbial. 313 Ting wit- c. They H in the lachment, were any What has n caught was pre- , what he to me at ive." On , and that irally told after the says it is en lor the to him in hat then ? not to be had never en if taken [lim there, saw each the ques- eV It is jrobable It • are here e go home, mind to re- d upon the esent here. s up tlie cture again _re is some ination and ou. Whyl There is (1 supposing ,ess that he stand the has been such con- ite zeal, to perjury. jelieved, he in the pre- he destroy- le prisoner Davis's ta- The next witness, to whom I will call your attention, ou this point of the declaration of the prisoner that he was there, is Park. He says a day or two after the destruction of the Caroline he heard the subject discussed in the officers' mess-room, and McLeod was there, and made the declaration that he participated in the destruc- tion of that boat. I will not stop now to comment on his testimony, but defer it till I come to where it is more material. It appears from the testimony of Davis and Park that there were two bar- keepers, Johnson and Park; it was a busy time then; twenty-five hundred soldiers were there. You can easily perciive liow in these circumstances any of our country villages would be overrun by a body of twenty-live hundred men. This was the case at Chippewa ; the taverns were full, everybody was put in requisition about them, and tliey were open night and day. Park says he retired to bed at 11 o'clock, and Johnson was up during the remainder of the night. I have shown to you that every elFort has been made to procure the attendance of the barkcopor at this trial. He lives in another State, and I am not authorized to compel him to come, or pay him any fur- ther than his expenses. But it is not so with the prisoner ; our law gives him the power to issue a commission and take testimony everywhere ; it gives no such power to the prosecutor ; I cannot do it ; he can ; where then is the testimony of this barkeeper I This is not a new thing ; the counsel well knew the importance of the testi- mony of Johnson, if they wished to contradict the testimony of other witnesses. Why did they not get Johnson to show the trans- actions of that night at Davis's tavern 1 The next Avitness who testifies to the prisoner's declaration is Henry Myers; he was the one who in moving from Canada with his family had so much difli- culty in finding his way across the river. He tells you that while at Niagara baiting his horse, there was a crowd of persons assembled together, some of them dressed in military habiliments, and were carousing in the tavern, and drinking there together ; that McLeod was among them, and he testifies to some expressions there used by McLeod. The learned counsel supposes, because the prisoner could not well have done all that he boasted of, while brandishing his pistol and his bloody sword, and attempting to astonish the Canadian militia in a bar- room, that therefore our witness is discredited. Not so. We do not pretend that all the prisoner has said is true ; his statements here in evidence prove the contrary. His improbable boasts may discredit himself, but not the witness who heard him make them. The counsel also urges you to disregard the testimony of this witness, because the expressions sworn to by him are unusual. If you knew the prisoner you might pretend to judge whether such expressions were usual with him, and might probably issue from his mouth; but without such knowledge you can only judge from the unimpeached testimony of the witness ; you can see only by his eyes, and hear only by his ears. You -are told that this witness is stupid, that he has not sense enough to keep the highway. It may be so. But remember that the counsel also told you that all the witnesses for the prosecution 40 ^ . i \ . 1 ' /'i Iff m '> iU Hi 314 GOULD S REPORTER. had combined find conspired tofretlicr to invent a talc of falsehood in order to procure tlic conviction of the prisoner. Are stupid men selected to act a part in so intricate and complex a jr-inie, when '<) our witness, Drown t When he comes to Drown, who, wIm'Ii his , imily \\( re sick, inul he couM not ntlcml, siiid he did imi Know luiv iliih'jf of conMM|urucc in the cause ! VV lien lie comes lo Down, the lie is black enouirli. I wish the j:entl('iniin to bo consis- tent, iMid if "white lies" may b<' used in one e:ise, why not in anoth- er ! Another olijeelinn niiule to tli'- lesliniony of this witness is, thai he said he did not know to whom he had over told the story. " i\iMV, how improltiible," say theyt "that is!" "How came he here !'" NVhy, believinuf tliiit this was true, we iiKjuired who saw it, if true ! and we found that Davis, Park, and Johnson, were men, of all others, who must be broutrht l)ef(tre you, and without stopping to in(iuire what ihtry would state, we proceeded to get them here ; we knew that J'arko was present in the bar room, and must have seen the prisoiu-r there ; there was no necessity for him to divulge what he would testify to. Wo ht did not return in it. Again, Harris and Zealand embarked in the same boat, conunanded by Drew, the leader of the expedition — and Harris said that all re- turned in the boat that went out in her. But Zealand says that Drew did not return in his own boat, but came back in another. Is there then any reliance to be placed upon their statements as to who were, and who were not in the boats, except in a very general sense? I might call your attention to the fact of their recognizing each other on the Caroline. The fact is, they met and fought each other — which is pretty conclusive proof that they did net recognize each other there. The learned gentleman examined with great minuteness the evidence of the persons engaged in the expedition. Gentle- men, I wish to call your attention to this matter, in another point of view. It seems that the number embarked, was about sixty, of whom twelve are called to give testimony before you; that is, one in five. In such an expedition, and on such a night, it would be more wonderful if you could not find twelve out of sixty, than it would to find twelve who could swear they did not see or recognize particular individuals. Let us see what they did know. Their an- swers to the first interrogatory gives the following result. Three out of the twelve say they did not know McLeod at all ; six of them say they had no personal acquaintance with him, but had merely seen him. One says he had been introduced to him. Two only say that they had known him for some time. Only two out of the twelve knew him in- timately ! Remember, they could have examined all Canada, if they chose. They had a commission with them which enabled them to examine any and every man ; and you have a right to presume that, out of the whole sixty, but twelve could be found, who could swear that they did not see him. Three of these did not know him at all, and six knew him but slightly. Well, gentlemen, there is one other consideration with reference to this subject, and we will then leave this branch of the testimony. All these witnesses, I believe, without exception, have sworn that they were resisted on the boat : that they were fired at. I suppose I need not say one word upon this subject. I presume that you, and the Court, are perfectly satisfied that there was no resistance — that no gun was fired — that those who were upon the boat were unarmed and help- less, and fled for their lives; and yet almost every one of these wit- nesses has sworn that they were resisted by those on the boat. I was astonished when I read it ; and the expression occuried to me which Sterne has put into the mouth of my uncle Toby — " Our ar- ray swore terribly in Flanders" — but they swore worse in Canada. I do not believe that respectable men would come forward, and de- liberately perjure themselves; but it is very certain that they swore broadly and carelessly upon the side on which their feelings were en- listed. Now, gentlemen, if you will pardon me for being so tedious, in re- lation to this evidence, which was not given to you upon the stand, and which I have thought it necessary to sift a little, in summing it up before you — I will ask you next to go with me in one or two of these boats. Mcleod's trial. 329 irn in it. lunandcd at all re- :mt Drew Is there ho were, ensc? I ich other r — which ch other inuteness Gentle- lier point sixty, of at is, one ivoiild be y, than it recognize Vhi'ir an- Three out them say seen him. t they had vv him in- ley chose. 1 examine out of the t they did six knew ference to nony. worn that suppose I )u, and the hat no gun I and help- these wit- 3 boat. I ed to me -" Our ar- Canada. d, and de- hey swore s were en- ous, in re- the stand, ming it up o of these With reference to thia subject, some of the witnesses say, that seven boats' crews embarked ; that five reached the Caroline and participat- ed in the conflict. Armour says that three, only, reached the Caro- line. Hector says that nine boats left. Light says that seven or nine left the shore ; which corroborates Drown : that is, their own witness corroborates our witness. Light also says that four of theso l)oat8 reached the Caroline, and that no boat returned in company with the boat in which he was ; but Scars says that five boats returned toge- ther. Battcrsby was in one of the boats that failed, and he says that his boat and one other that failed, returned about midnight. Others state that they came back at a little after daylight, notwithstanding that those who commanded them have sworn that both returned toge- ther about midnight. How can you reconcile all these conflicting statements? You cannot. You can only come to the conclusion that in such darkness and confusion, they are unable to state the facts with certainty. Now, gentlemen, these seven boats were commanded as follows : The first, by Capt. Drew, from which we have two witnesses, Zea- land and Harris. The second, by Capt. Beer, from which we have three witnesses, Beer, Cleverly, and O'Reilly. Th(! third by Capt. Hector, and he is the only witness from that boat. The fourth, by Capt Gordon, who is the only witness from his boat. The fifth, by Capt. Battersby, from which we have two witnesses, Battersby and McGregor. The sixth, by Capt. McCormick, and he is the only witness. The seventh, by Capt. Ehnsley, from which boat we have Light and Armour. Now, gentlemen, let us see if we can get a passage for McLeod on board of Capt. Elmsley's boat, without being discovered ? In order to ascertain this matter, let us turn to the depositions of the witnesses who were ou'board of this boat. How much did Light and Armour know of McLeod ? Armour says that he had met him only once or twice before the 29th December, and knew him only by sight. " I had no personal acquaintance with Alexander McLeod ; he was pointed out to me in the streets of Chippewa," He is asked wjien he was pointed out, whether before or after, and he could not say ; he believed him to be a British subject. Armour says, " 1 did not know all the persons who went on the expedition ; I did'not see all ; but I think I saw half ; I recog- nized a part of them." Light says, " I did not see or recognize the face of each one of them ; I knew all in the boat with me hut two, who were strangers to me." He does not speak with positiveness at all. Now, may not McLeod have been one of those two ? Here Judge Gridley referred the Attorney General to their an- swers to the fifty-sixth and fifty-seventh cross-interrogatories, where. Light says, " I do not know where he was ; he was not in my presence." The Attorney General. — Armour says he did not know Mc- Leod by sight. Here we have sweeping declarations, from witnesses who acknowledge they did not know McLeod by sight. What effect 42 V( !;-*••■ »i» I h ■ At «!;• lii ^y Ml it iuiiy u 330 Gould's reporter. can such declarations have. Arinour^s answer to the same question aa that put to Light is, that he did not thiuk McLcod was on the beach ; he did not come within his view. Light says that when they pushed oir, they pulled two oars ; that he was on the boat which Elmslcy commanded ; that he saw all the persons who were in that boat, but did not see Alexander McLeod that night. He saw all, but McLeod was not one of them. In the cross-interrogatories, 1 have (juestioned him as to his means of knowledge. He says he did not know McLeod by sight ; he did not recognize and speak to all who were in his boat. When they are inquired of, and say they re- cognized all but two, how strong the suspicion that one of those two might have been the prisoner. When they have said that they did not recognize all, and did not know McLcod, I ask if there is not room enough left in Elmsfey's boat for McLeod, without contradicting these witnesses? And again I ask, where ia Elmsley? Why is he not here to testify ? We will now pass to Gordon's boat ; and Gordon, you will recol- lect, is the only witness on board his own boat. Gordon says, "I knew him, but had no personal acquaintance with him." " I think he was once a passenger on board a steamboat which 1 commanded. I cannot say positively, that I saw him more than once." And yet gentlemen, this is the degree of knowledge possessed by that individual, by which to discover him in the black darkness of midnight. Now let us turn to see how many he knew on board that boat. Gordon says I did not know all in the same boat with me, I did not recognize each one, nor did I speak to each individual. This is the whole that yon have, to exclude him from Gordon's boat. He did not see or recognize all that were on board his boat. Here is the testimony of a man who had seen him but once before, and who says he did not recognize all who were on board of his boat. But gentlemen, are you to throw twelve men into the position of black perjurers, on such a statement. If, then, gentlemen, there were room enough in Gordon's boat, it is enough, and the whole that follows is valueless. Now, if there is one boat in which the testimony is not such as to render it improbable that he was there, it is precisely the same as if all were left open. One is enough, for he could only have gone in one at a time. If there is room enough in Gordon's boat without contradicting Gordon, it is enough ; and the whole mass of testimony as to the alibi falls to the ground, and is utterly valueless. Gentlemen, I fear I have fatigued you too long with this part of the testimony, and I take my leave of it. Here Mr. Spencer interrupted the Attorney General, but the Court interposed and read from the testimony of John Gordon, as follows : " I know Alexander McLeod ; I have no particular acquaintance with him ; I think at the time I saw him, he was a passenger on board a steamboat which I commanded. I believe him to be a British sub- ject. I recollect the time of the destruction of the Caroline ; I was in Chippewa, and was on the beach half an hour before the departure of the boats. He was not in my boat, he was not in my presence. I saw all the persons in the boat t went in, and I am satisiied that Mc- Leod was not one of them. MCLEOD S TRIAL. 331 ic question an on the when they )out which ere in that aw all, but gatories, I ays he did peak to all ,y they re- those two t they did here is not ntradicting Why is he will recol- itance with iboat which more than issessed by larkness of board that nth me. I lual. This boat. He t. Here is e, and who boat. But m of black were room t follows is nony is not ecisely the 1 only have rdon's boat le mass of ' valueless. part of the it the Court as follows : ntance with on board a Jritish sub- line ; I was e departure resence. I ed that Mc- Now, gentlemen of the jury, let us look into the teflliniony of those witnoHses wlu) have been presented to you, and have teHlilled ft)r the jiurpose of satisfying you that the prisoner was at the house of Mr. Morrison at Stamford, five or six miles from Chij)|)ewa. I confess, gentlemen of the jury, to my mind a shade is cast o\er the testimony bearing on that point, by the considerations to which 1 have before re- ferred when I called your attention to the remarks t)f a writer on the defence of nlil)i. When they decide on making this defence, they se- lect the place where they will set up the ulihi, and they have the whole world to select from; and you will observe where the prisoner makes that selection. If he declared at the time he was among his associ- ates — if he placed himself in some position where it is manifest he has some control over those around him, it is a matter which a Jury should carefully consider. The prisoner at the bar locates himself in a family over which the testimony shows he had obtained a too fatal inlluencc — or over one at least of its members. Now if it appear that he had a control over that family and its movements, their testimony when brought here to save his life, must be cautiously received. If it appears, gentlemen of the jury, that he bears a relation, whether le- gitimate or illegitimate, to tliat family, and it is shown that she who lived with him as his wife, resides with that family as the daughter of Mr. Morrison, it is a circumstance to which you will not shut your eyes. There is another consideration which you will legitimately and properly take into your view. When the prisoner went to that house, the question will occur to you, what did he go there for? Men do not act without motive. And again review his course. He started on Thursday to go to Niagara on business ; he got to Chippewa ; he was there on the afternoon that the Caroline came down ; he rested in the afternoon, and at night, a witness says, he started in the wagon with Press again ifrom Chippewa. Press got home about nine or tea o'clock ; but McLeod stopped at this house. Now, gentlemen, look if there is any motive for going to Morrison's house that night. There are two witnesses, gentlemen of the jury, who have sworn to you that the prisoner was at the house of Mr. Morrison during that night. Mr. and Mrs. Morrison both say they sat up until twelve o'clock with tiie prisoner, whose guilt is utterly inconsistent with the truth of that statement — and they are the only witnesses presented before you whose statement is inconsistent with the guilt of the prisoner. If he had been there at twelve o'clock that night, he could not have been present at the destruction of the Caroline. But what the rest say may be true, and yet he may have been present at the destruction of the boat. I do not say that if McLeod was not at that house at twelve o'clock, that the witnesses are perjured ; far from it. I only say they have mistaken one night for another. They may have added some circumstances — I fear they have. The foct that he staid there and had done so repeatedly, they have disclosed ; that he was there on that night, is what no human being can testify to, three or four years afterwards. Neither you nor I could testify whether a fact which took place in 1828, '29 or '30, happened on a particular day; we might say al)out what time, whether Sunday or the day after Sunday ; but to swear to a particular day of the month, is what none can do af- ter that lapse of time. .1 ' ■ i '^ V„ . f 332 (joiild's reporter. Tlic tCHtinioiiy of f!a|»tairi Morrinon has born l)cforo taken, nnA to Mint I irinsi now rffcr yon. Hi- thi'ii statcil sdoif iliiiins which he docs not now rrcolU'ct ; and ho rcoollccls now soinr thin^rs of which ho had then no kn nvlrdjfo. Tlic Icarncil jr('nth'incn here read the testimony of i\Ir. Morri-^on, which waH talien Ix'foro Sijnire Bi'll, in which he said he thouijht it waH near eleven o'ciocU, when (Joloncd ('ameron called at his gate; on Jiis examination in court, he fixed the honr at eight. lie, Mr. Morrison, now recollects, that McLcod had two horses, for when this new testimony of I'ress came out, there was a diffi- culty. The testimony of I'ress went to show, that he had no horse with him. It then became necessary to vary this a little. I will not say it was by desinjn. Then, he was represented us coming on horse- hack — that the witness saw the horse m the evening and in the morning. Now, he siiys that he had two horses there. One which he rode, and the other in the stable. And he has here said, that he saw his horse in the stable at night and the next morning — though he does not say that he had two liorscs, and the implication is, that he had only one ; for you see, that the testimony would have no applicatir)n if he had two horses. Mr. Morrison again says, that he saw McLcod in the morning, and that he was walking in front of the hous(!, when he informed him of the destruction of tlie Caroline. Now, it seems that it was in the house. McLeod might have got up and gone out. He never stated that he was not out of the house. He thinks he had never told any one so, or had any conversation upon this subject. He also stated, that he had not heard previously that the steamboat Caroline was coming down. Now he says, he had previously heard it. I have a distinct recollection of putting the question, and of his answering. He first stated, that it was dark when McLeod came, and that he did not see his horse ; but after- wards adds, that he, the defendant, generally kept a horse there. You perceive, therefore. Gentlemen of the Jury, that the statements now made, differ somewhat from the statements at first made. It will have its weight with you, as to the infirmity of this witness's recollection. There is another circumstance which goes to impeach his testi- mony, with respect to McLeod's being there on Christmas night. You will correct me if I am wrong. If it was Christmas eve, xMcLeod contradicts him. But if he said Chrisii.ias nicht, then there IS no contradiction. There is another fact, which is sufficient to do away any great weight that the testimony would otherwise have. Each and all of them — Mr. Morrison, Mrs. Morrison, Miss Morrison, and Archy, state, that he staid at their house on the second day of January. They recollect it well, for a son of Mr. Morrison was at home, and they had to remove him out of the parlor to make room for Mr. McLeod. If there is a doubt, you are to take it in favor of the prisoner. There is no question about the room. But now, for the second of January. He and his wife, and his daughter and son, all say that they are clear and positive that he was there on the second I, nni\ to c'Pt ; antl Ii>n'Hre ; but he tioii of the recollects the horse ny, several he was at I waggon ; oken to by He made m, but was before the :, the entry s he has no ppewa, and was asked ade the en- this he had ,ce upon it. ay was not ut when he it, for they lys that he f he had a 1 that there hen Archy le came in md did not led. ave return- ss and Mor- it that time miles after ro eighteen how many ^gonl My I have re- Avhat time, Let us take d take two there, and linl There was an object on the part of McLeod not to be known in this trans- action. What that object was, has not been fully disclosed. There appears to be this, that McLeod, on that night, chose not to be known. It was an experiment, a secret matter not openly counte- nanced. It was not known how the Government would consider it ; it was of a rash character ; and one engaged, like McLeod, in public business, might have been greatly injured in his affairs. There were, therefore, grave reasons why, in the firr,t instance, he might not choose to be known in this transaction. We see that he was par- ticularly cautious to say to Davis and Parke — " Order my horse, I shall have to go to Niagara." These same persons state, however, that after thus saying, in this public manner, that he was going to Niagara, they both saw him afterwsirds the same evening at Chippe wa. This only shows that for some reason he had a motive for choos- ing to throw a disguise over this affair ; and not to have his move- ments known. You see then why he might have rode with Press in his waggon, and have taken his horse and rode back again from Mor- rison's in time to engage in this expedition. I am not now stating that these are matters which did actually take place, but I am stating that they are matters which might have taken place, according to the testimony of their own witnesses, and must have taken place ac- cording to the testimony of Avelve men under oath, produced by the prosecution. Yet you are called on to say that they are all per- jured. But you never will do that, while you can find any other way for him to go down, for the purpose of disguising his move- ments, and having the means and time to come back again. Rather than to suppose that these men have all perjured themselves, you are to suppose any thing which is not physically impossible in itself. This supposition also disposes of the testimony of Mr. Stock- ing. Take the supposition that Mr. Press has stated every thing per- fectly correct — for this is all that they both prove — that he started to go down at about five or six o'clock ; he might have been back at eleven to engage in the enterprise, as our witnesses have said they saw him. You have a painful and solemn duty to perform, and you will not blame me for placing all the facts before you, that now and hereafter there may be no relenting that you may have given a false verdict. You will, therefore, be patient with me, if I am longer than I other- wise should be. As to the deposition of Colonel Cameron, we have had no oppor- tunity of cross-examining him. I have no doubt he is a very worthy and good man, of about sixty years of age. I have no doubt he has stated what he believes to be correct, that, on the morning after the destruction of the Caroline, about nine o'clock, he stopped at Mr. Morrison's, and that Mr. Morrison came down to his gate, that he then and there held a conversation with him of about five minutes, in which he may have mentioned the destruction of the Caro- line. Now let us see the statement of Morrison as to this man. He says Mr. Cameron sent for him to come down to the gate. He then told him that an American steamboat had been burnt. The old man was so much engaged in the matter that he had gone down from 1 i 4 ':| 336 GOULD S REPORTER, the Falls to the eddies of the river, and picked up a fragment of the boat. He gives to Mr. Morrison a part of it. His whole lieart is full of the subject. Alas! the old man has now forgotten that he even mentioned that subject. Not a word about the fragment. If I could have had an opportunity to examine this good old man, if I could have put a cross-interrogatory — do you believe, if the old gen- tleman had been asked, " Did you not bring a fragment of the Caro- line" — he would have answered ' YesV We know the answer would have been ' No' — because it is not here ; it is a most conclusive cir- cumstance, that the prisoner's counsel did not put the question, or omitted to note his answer. Captain Morrison says it was about eight o'clock ; he says that it was about nine o'clock ; that he left Chip- pewa in the morning, and had travelled six miles over a very bad road, such that a horse had to walk ; and if he was there at eight, he must have started at six. Then this old gentleman must go from the high road down to the brink of the river to pick up this fragment. It is very extraordinary that they did not question the old gentleman, to see how fai he sustained this account. If both the isolated facts are true in themselves, it only wants some link to be forged to con- nect them together. It is a trifling difficulty to be detected, but when it is brought to bear against the oath of innocent men, unitn- peached, it should have but very little \veight. I shall not detain you, to dwell upon the testimony of Gilkinson and Judge McLean. It is not for me to make out that McLeod was not there on the road at ten or eleven o'clock, because there was time enough for him to have travelled back and forward four or five times after the expedition — but that it was the day after the one that he speaks of; that it was on Sunday that he rode up the river. Smith said that he saw a group-of two or three persons on Sunday, which is not inconsistent with the case made out by the prosecution. But if deemed essential, I would ask where is Mr. Foote, who has been subpoenaed by the prisoner and has been here present { Considering they had to combat the oaths of twelve men they had not such a mass of testimony as to render it a work of supererogation. Now I have said all tha,t I propose to say in relation to those wit- nesses who are brought to confirm the testimony of the Morrisons. What they state may be true, and yet what the Morrisons state may be false. They state circumstances which are consistent with the Morrisons ; but further than that, their testimony is rebutted by all those who say that they saw McLeod at Chippewa at ten o'clock, and between eight and nine the previous evening. They testify directly in opposition to the Morrison family, for they say that they saw McLeod there in Chippewa at sunrise or thereabouts, which is incon- sistent with what has been testified by the Morrisons. In addition to this we have produced a witness here to impeach Morrison by his own declaration in other situations. It is Defield. Thej' pro- duced a witness to impeach Defield, and we another to sustain him. They produce a man who says his reputation foi truth and veracity is not good, and he cites an instance where he heard several gentlemen commenting upon an oath of Defield, in which he stated that Morrison told him that he could not say whether it was that or !:isi MCLEOD S TRIAL. 337 |:,,. y enl ot the 3 heart is (1 that he ment. If man, if I i old gen- the Caro- wer would ilusive cir- uestion, or ibout eight ; left Chip- a very bad at eight, he ro from the gment. It gentleman, slated facts f justice. If ewhere, have they reached ul administra- jpeal. his trial, loyal le recent trou- e have had the tors connected ition in the Ca- as others who >rs and specta- i heard — not a ieen quietness here is a spot lat here, if no- 3, and all bow to pass, allow appreciate this n the conside- The coun- her, have pre- ntial to further altogether dif- th the interests f all the adven- no more than The fir th has lurder been conn 'd f us tatc U(!stion Secondly, is the prisoner at tl>c t)ar guilty ot t Upon the first question the Supreme Court Their decision is authoritative on you and on me. We are sitting here to dispense justice -in the Circuit Court. This issue, as well as others, has been brouf^ht from the Supr(>me Court to bo tried here, and we are to be governed by the decision of that superior tribunal which has sent down this issue to be tried her(>. It is no longer an open question ; it is an adjudicated one, and with it you have no concern. The circumstances out of which tlie indictment originated are briefly these. In Deceml)er, 18;n, a body of Canadian refugees and American citi- zens occupied Navy Island, fortified themselves there, and opened a can- nonade upon the Canadian main, where some twenty-five hundred or three thousand men were assembled, to protect the territory upon which they stood. It was alleged that the citizens of Buffalo had given some aid to the occupants of Navy Island. William Wells, the owner of the steamboat Caroline, for the purpose of promoting his own interests, as he swears before you, had the .steamboat cut out from the ice where she lay, in Buf- falo creek, and on the morning of the twenty-ninth of December that fatal boat made h'T first trip from Buffalo to Schlosser, touching at Black Rock and at Navy Island. After that she made two trips between Schlos- ser and Navy Island ; and -.vas instrumental in conveying armed men, as well as arms, provisions, and one piece of ordinance, to Navy Island. Further than this, it does no* appear that the Caroline was instrumental in promoting the interests of the occupants of Navy Island. The Canadian authorities saw fit to regard this boat as a portion of the arniament of the insurgents, and resolved to destroy her ; and if, in order to effect this, it should become necessary to destroy life, to do that also ; and hence, in furtherance of this design. Sir Allan McNab, the commander of the provincial forces at Chippewa, ordered volunteers to emi)ark in boats. Seven boats started, two of which failed to arrive, but five did arrive, and from these five boats the Caroline was boarded while her peace- ful occupants were asleep in their b(;rfhs ; and with swords, pistols, board- ing pikes, and fire-arms, the attacking party chased the pei-sons from on board, wounding some, and killing one ; and whether others experienced a similar fate we know not ; and having set fire to the boat, the attacking party sent her over the Falls. This is a brief history of the transaction, so far as it is necessary for you to consider it, for the purpose of understanding, appreciating, and disposing of this question. The act which I have described, is held, by the prisoner's counsel, to be excusable in the individuals performing it, for these reasons : First, that it was authorized by the government which they served, and by the officers to whom they owed obedience. Secondly, because it was done in necessary self-defence. Thirdly, because the act, though not formally authorized, was afterwards avowed by the government. Fourthly, because the whole transaction has already become the sub- r'» ¥ } iv,m 342 r.OUI.D S REPOKTER. ject ctf negotiation between the two governments, so as to deprive tliis court, of jurisdiction to try the oll'unce. Tlicsc arguments liave been laid before, and acted upon by, the Su[)ronic (x'ourt, and tliat court i)as, deliberately, and with great learning and un- common research, examined thcin all, and pronounced that the killing of Durfee, although performed in the prosecution of an cnterprize such as that which 1 have already described, was murder ; and it follows that all who were engaged, aiding or abetting, are guilty of the same oflence ; and it is not necessary that the arm of AlcLeod should have struck the mortal l)low, to render him guilty. It is enough, that he engaged with others in that enterprize, to authorize you to pronounce him guilty upon evidence which satisfies you of these facts. Tiiis question, tht^n, is to be excluded from your consideration, and I mention it only lor the purpose of enabling you to understand how far this portion of th(j case has been disposed of by a higher tribunal. This (juestioti has been already adjudicated, and is at rest. 'J'lien comes the important question upon which you are to pass, is Alex, ander McLeod guilty of that murder? The counsel lor the people have presented many witnesses before you, the tendency of whose testimony has been to show that the prisoner is guilty, and in order that you may understand and appreciate this testi- mony, I shall briefly pass it in review before you. I shall distinguish it into two classes : the first branch will consist of direct and circumstantial evidence, other than that arising from confessions connecting the prisoner with this charge ; the second class of evidence will consist entirely of confessions. The first witness, according to this classification, who has testified be- fore you, is Ciilman Aj)pleby. He is the only witness who was on board of the boat at the time of the attack, who has sworn that McLcod was there. He was the captain of the boat ; he slept in the gentlemen's cabin ; lie was awoke a little past twelve o'clock, as he thinks, by information that there were boats approaching ; he arose and partially dressed, made his way up the companion-way till he found his farther progress arrested ; he retreated, but again returned, and had opened the door about a foot, when it was violently thrust open by some one outside, who then made a plunge at him with a sword, which cutoff two of his vest buttons, and struck against the metal button of his pantaloons. He was considerably excited, but in that momentary glance he saw the features of the man thus attack- ing him, and his impression then was, that the individual was Alexander McLeod ; but with all commendable prudence and caution, for which I honor him, this witness says, that amid the agitation of that moment, and in that hasty glance, he cannot say that it was McLeod. He had once before seen the prisoner in Buffalo, and it struck him that the person who thrust at him was similar in appearance to Alexander McLeod; but it was only one hurried glance ; and he immediately replied to the question of counsel when on the stand here, that he could not say that it was Alexan- der McLeod. The next witness is Samuel Drown. He resided at Chippewa, and was engaged in tending bar for one Smith, who kept a tavern there ; and he says that he went up on the evening of this transaction to what is called the " cut," and up the Niagara river where the embarkation took place ; that he was at the entrance of this "cut;" that he was at the beacon- MCLEOD S TRIAL. 343 icprivc this liu Supreme ing and un- c killing of ize such as ows that all llbiicc ; and i the mortal ith oth(;r.s in on evidence •ation, and I how far this lunal. This )as3, is Alcx- before you, e prisoner is ,c this testi- iistinguish it ircumstantial the prisoner it entirely of testified bc- 'as on board VIcLcod was men's cabin ; jrmation that ed, made his arrested ; he a foot, when lade a plunge 3, and struck •ably excited, thus attack- is Alexander , for which I moment, and ^e had once 3 person who d ; but it was e question of was Alexan- ewa, and was lere ; and he rhat is called n took place ; the beacon- light when they kindlod thtir fire for the purpose of aifording a beacon to guide the boats on their return. On that occasion lie saw the boats passing into the "cut." They came along up the " cut " to the place where they had first embarked, and there they disembarked. lie stood near by ; within a i'ew feet ; it was dark. When asked whether McLeod was among tliinn, his answer is, " I should say lie was." He says he went from there to Davis's tavern, where a portion of these persons came, and there, by a liglit which shown from witliin the bar-room, or by a light on the stoop, although he cannot remember any light hanging out there, he professes to hav(^ seen there, again, Alex- ander McLeod. He says that the next morning, between daylight and sunrise, he heard some of the men in the tavern talking of McLeod's being wounded, and spying he was over on the opposite stoop, some four or five or six rods distant ; the witness looked across, he says, and then thought he again recognized McLeod. He says he went over to sec whether McLeod was wounded ; he saw no one apparently wounded, and did not see him. He was inquired of in relation to the degree of cer- tainty with which he could say that the man whom he saw was McLeod, and he said in reply that "he saw a man whom he called McLeod." An- other question was put to him, and he then said, " I mean that I am as sure that it was McLeod, as that he now sits before me." This is his testi- mony. He submitted to a long cross-examination ; and how far it went to weaken your confidence in his statements, it is your province, gentle- men, to decide. There is, however, one consideration which I will sub- mit to you. It is this ; When you arc to judge of the credibility of a witness, it is right and proper that you should observe his manner on the stand ; the degree of intelligence which he exhibits ; the amount of powers of observation and accuracy of recollection ; and, having done so, you are to decide whether his answers satisfy you that he is honest ; and on the whole, whether his statement is of such a character, when taken all in all, that you can rely upon it. If you cann(Jt entirely rely upon it — if it admits of some doubt, you are to weigh it, and give it just so much credit and confidence as you think it merits, and no more. It is argued by the prisoner's counsel that the darkness which prevailed then, and is testified to, was such as made it exceedingly rash for tliis witness to pronounce so confidently, that he was able to recognize McLeod as well, and as clearly, and certainly, as now, by the light of day. It is also argued that he stands before you impeached as to his character for truth and veracity, upon this principle, that where a witness, out of court, has made a different statement from that made by him in court, it should weaken confidence in the statement which he makes under oath. Mr. Bates has been called, who testifies that he lives near the residence of this witness, and he says that he heard him speaking on this subject, I think, at some former period when subpoenaed, and among other things he said he knew nothing in re- ference to this matter that could do McLeod any harm or any good. The statement which he makes of what he said is somewhat qualified. It is re- marked on the other hand that witnesses who are subpoenaed, frequently make careless observations, and that this person being a poor man, might wish to avoid attendance on this trial. This is very true, that persons often make careless remarks, and had Drown made such a statement in pre- sence of any one who could have excused him from attending here, then the plea of counsel would have been entitled to greater regard from you. .M •4 \ m U, v<: m ! 344 GOULD S KEi'ORTKK. [f in truth the fucts which ho has hen* stutcd were remembered by him at thut time — fucts wliicii wcro uil materiul, when the life of tlio prisoner is at stake — he could not liavo said consistently with truth that he itnew nothing of suHicient importance to liarm or benefit the prisoner. This, gentlemen, is the extent of the impeachment of this individual's testimo- ny. You are to take it into your consideration, and so far as it detracts from confidence, you are to exercise your judgment, in order to restonj him from this impeachnuiit. I may add, that in order to restore your confidence in Druwn, Bates was (|uestionefl, and in reply stated that that individual's character fur veracity had latterly improved. Mr. Bates went on to say that Drown hud been au intemperate man, and these habits had an effect upon his character, and made him dishonest ; but fur several years bcifore he went to Canaila he had reformed, and since his return he liad known of no relapse. So I'ar as he knew, he was an inolfensive man ; he was a man in an humble walk of lite, and not very intelligent ; a man who had not had many o|>portuiiilies to exhibit what his character was as to withstanding temptation, if oll'ered to him. You have his tiistimony in the extent in which it has been given ; you have heard the reply of the witness called by the Attorney-General, and whether you believe him or not is for you to decide. The next witness, gentlemen, is Isaac P. Corson. He is a native of this State, a carpenter by trade ; he had boon in Chippewa in prosecution of his business. He testifies that he was at Mecklem's store three or four times on the afternoon of the 29th December, 1897 ; that he there saw Mo- sier, Usher, and the prisoner, and at nine o'clock he saw the prisoner coming out of Davis's tavern ; and that he also saw him next morning at sunrise, with others, on the " stoop ; " that he was at some little dis- tance ; that he could see only his head and shoulders ; that he was telling of his exploits, and saying that he had killed a d — d Yankee ; that he saw him again two or three days afterwards ; that he then said he would like to be on another such expedition, and cut out and burn Buffalo. This is an an- alysis of this witness's testimony which is spread over several pages of my minutes. You will recollect, gentlemen, this witness's cross-examina- tion, and will judge how far that weakened the force of the statements made by him on his direct examination. There is, however, one point that demands your particular attention ; — it is a point which you should take into consideration and pass upon. This witness was inquired of as to who else were present when he heard McLeod flourishing and boasting of having killed a Yankee. At first the witness could not recollect any one ; at length he said he could name one Caswell. He was then asked whether he was present at this trial, and he said yes. He was then asked when it first occurred to him that he saw Caswell there that morning, and he confessed that it was that very moment. The cross-examination was protracted, and in the course of it, it came out that he had conversed with Caswell as late as the morning of the day on which he testified on the stand before you ; that they talked of the affair of the Caroline, and that Caswell informed him that he was there that morning. It may be that that was all true, and that it really did not occur to him that Caswell was there, till the moment the question was put to him. But you are to judge of that. The next witness is Charles Parke, bar-keeper at Davis's tavern — ^he testifies that the prisoner went to bed at Davis's tavern early in the day. 1 mci.kod's trial. 3ir> I I by him at prisoner is il ho knew icr. This, I's tesliino- i it dotiacts to restoiu c'Store your v(\ that lliat Bates went J liabits had for several is return he nsive man ; jnt ; a man cter was as eslimony in reply of the icve him or a native of prosecution hree or four 3ro saw Mo- the prisoner :)Xt morning (ic little dis- ! was tcllini; that ho saw vould like to 'his is an an- ral pages of )ss-examina- e statements r, one point you should quired of as and boasting ecoUect any s then asked s then asked norning, and ni nation was n versed with nified on the ino, and that may be that Caswell was are to judge 3 tavern — ^he y in the day, and got up between 8 and 9 o'clock in the evoning ; that a gentleman called liir iiim and he went out; that half an hour or three. ([iiartors of an hour allerwards ho saw him between J)avi "s and iIk! (Jhippcwa creek; that a good many people were on the road; that McliCod went into one of the boats ; that at about sunrise next morning he saw him at Davis's ; that ho again saw him a few days afterwards in the ofllcers' mess-room, and there heard him say that he had killed a d — d Yankee, or something like that. At tiio close of his examination this witness was asked whether he could say witii considenihlti certainty that he saw Mc- Leod at the "cut," and he said he could ; he was asked furllu r, and said ho had no doubt of it ; he also states that it was pretty dark that night ; and testifies also to other facts, on account of which the counsel for the prisoner contends you should takt; his testimony with con- siderable grains of allowance, lie ttslilies as to his knowledge of Mc- Lcod, and among other things, says that he once went a distance of thirty miles with a brother-in-law, to witness the payment of a sum of money, for which he thi'iks u receipt was taken, although he camiol re- member the amount. It was expected there might be difliculty in relation to it, and his brother-in-law wanted a witness present. It is also argued that this whness tells a very extraordinary slory in relation to the; manner in which he has been induced to appear here : that he started from home a week before the trial, and had aulually got as far as Chippewa, on his way to Buffalo, where he intended to make certain purchasi-s ; that he suspected some one who accosted him on th(! way, of the design of ar- resting him, to insure his attendance as a witness on this trial ; that he returned home — again set out with another man, to purchase in BuH'ulo some books for a library, a stove, a |)ump, and a plough ; and that early on the morning after his arrival, he was subpumaed by a man who had seen him pass through Chippewa, who had crossed the Niagara river, and had gone up to Buffalo for tliat purpose. He says, too, that he was ignorant as to the law, and supposed it was a process u|)on which he could be compelled to attend. That he referred to Mr. Havvley, and Mr. Hawley told him that if he did not consent to at- tend he would put means in operation to compel him to do so. Well, this may, or may not, be true. It is not the fact, however, that he could have been compelled, however much he may have been urged. He might have made his purchases, and gone o\it of the country before an attachment could have arrested him. It was only after he had been called here and failed to appear, that an attachment could have been issued, upon which to arrest him, and which would have been powerless in Canada. As to Mr. Hawley having given him that information, we have no light, except what the witness has himself stated. I am not aware that upon a subpoena any witness can be arrested. It is urged that he appears like an intelligent man, and is presumed to know something of the law. It is further urged that this will be more apparent when you look at other facts ; he was asked, whether he had seen any person, who solicited him to come, within a week of the time when he started ; he says he had been thus solicited within a month ; he was inquired of who the persons were that solicited him. He says, they were persons religiously opposed to bearing arms. Now, I have no opinion to express upon these matters. They have been insisted on by the prisoner's counsel, and it is urged that they ought 44 ■' I ! I '«3fc| ■il: r f iilit' ;• iil.il I i.u;; M6 GOULD !* REl'ORTER. to drstrny \\v confnli-iiro which you would otherwise place in his state T. o you I Icttvo it. incuts. Tli(' next witness is Caswell. Ho snys, that ho saw tho prisoner tlio cveiiiuj; l)eli)r<' the hurniiig of thoCarolinu, and tho niorninjjj Hl\er, on tho steps of Davis's tnv«'rn. Then comes Anson U. Quinhy. IIo is tho witness from I'cnnsyl. vania ; he testified that ho resigis which the law has thrown around and over the heads of those who are brought to the bar of justice for crime. It is then with you. I have thus gone through the great mass of evi- dence in this case, much of it not in detail, as it would have occupied much time to do so ; yet I have gone through the great leading features of the case ; and have presented them to you, together with the principles by which you are to be governed, according to the best of my ability. Now my duty is performed ; your duty — and it is the highest duty which you can ever be called to discharge — the most solemn duty which your country ever reposes in her citizens — your duty is about to commence. You are to take this subject into your deliberate consideration, weigh and decide upon every portion of it ; call into exercise your best powers of judgment ; free your minds from bias, if any exist : you are to approach the consideration of this question, looking at it through the testimony which you have heard upon the stand, and that alone ; discarding all considerations which have been held out by counsel, all rumors which may have reached your ears ; every thing but the polar star of looking to the evidence to ascertain what is the truth. When you come to your de- cision, and determine where the truth is, let it be with an independence that shall do honor to a jury — with that impartiality which your country expects at your hands. With a single eye to the demands of justice, pro- nounce your verdict : and when you have pronounced it in the best exer- cise of your judgment, and of this great duty which you have to perform, I trust that all those who have witnessed this trial, and the manner in which it has been conducted — all those who have heard the able argu- ments which have been submitted by counsel, and the patience with which you have heard and drunk in the evidence, as portion after portion of it has been unfolded before you — that all those who have seen your anxious endeavors to arrive at the truth, will be satisfied. If you shall believe that this man is guilty of murder, then, fearless of consequences, whatever those consequences may be — though they shall wrap your country in a flame of war — whatever the result, look with M if I t (■V K, ili;| m ;»-<{• 358 GOULDS REPORTER. a single eye to truth, and a hand firm to duty ; look to the (jod of Justice, and say whether the prisoner be guilty or not. If he has .successfully met thix charge and dcfundod himself against il, then there is another duty tu perform, irrespective of any rumors oi charges ; irrespective of any con.siderations which may b(! held out to you, or which may have entered your minds or exercised an influence over you — with the same fearless intrepidity pronounce that he in not guilty. Now, gentlemen, I commit to you this great case with its solemn duties, and the rights of your country ; and may Uie God of all justice and truth preside over your deliberations, and may the verdict whicli you render be in accordance with tlie foundations of his throne and his government. 359 >f Justice, igainst il, nmors oi lid out to influence ho is not inn duties, and trutli render be unt. PUBLIC DOCUMENTS. FROiM THE DEPARTMENT OF STATE OF THE UNITED STATES. IV o. 1. Mn. Fox TO Mk. Webster. Washington, March 12, 1841. The undersiprned, Her Britannic Majesty's envoy extraordinary and minister plenipotentiary, is instructed by his Government to make the following official communicittion to the Government of" the United States : Her Majesty's Government have had under their consideration the correspondence which took place at Wasliington in December last, between the United States Secretary of State, Mr. Forsyth, and th(! imdersigned, comprising two official letters from the undersigned to Mr. Forsyth, dated the 13th and 29th of December, and two offi- cial letters from Mr. Forsyth to the undersigned, dated the 2Gth and 30th of the same month, upon the subject of the arrest and imprison- ment of Mr. Alexander McLeod, of Upper Canada, by the authorities of the State of New York, upon a pretended charge of arson and murder, as having been engaged in the capture and destruction of the steamboat Caroline, on the 29th of December, 1837. The undersigned is directed, in the first place, to make known to the Government of the United States that her Majesty's Government entirely approve of the course pursued by the undersigned in thai correspondence, and of the language adopted by him in the official letters above mentioned. And the undersigned is now instructed again to demand from the Government of the United States, formally, in the name of the Brit- ish Government, the immediate release of Mr. Alexander McLeod. The grounds upon which the British Government make this de- mand upon the Government of the United States are these : that tho transaction on account of which Mr. 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 per- forming an act of public duty for which they cannot be made per- sonally and individually answerable to the laws and tribunals of any foreign country. 1. ^-j'lion' of the territory of her Majesty ; or it may have been, «h al- icjfed by Mr. Forsyth, in his note to the undersigned of the 'itlth of December, "• a must nnjustihable invasion in time of peace of the ter- ritory of the United States." Uut this is n ([iiestion especially of a political and international kind, which can be discussed and settled only between the two Governments, and which the courts of justice of the State of New York cannot by possibility have any means of judging or any right of deciding. It would be contrary to tlic Jinivcrsal practice of civilized notions to fix individual responsibility upon persons who, with the sanction or by the orders of the constituted authorities of a State, engaged in military or naval cnteryirises in their country's cauRe ; and it is ob* vious that the introduction of such a principle would aggravate be- yond measure the miseries, and would frightfully increase the de- moralizing effects of war, by mixing up with national exasperation the ferocity of personal passions, and the cruelty and bitterness of individual revenge. Her Majesty's Government cannot believe that the Government of the United States can really intend to set an example so fraught with evil to the community of nations, and the direct tendency of which must be to bring back into the practice of modern war, atrocities which civilization and Christianity have long since banished. Neither can her Majesty's Government admit for a moment the validity of the doctrine advanced by Mr. Forsyth, that the Federal Government of the United States has no power to interfere in the matter in question, and that the decision thereof must rest solely and entirely with the State of New York. With the particulars of the internal compact which may exist be- tween the several States that compose the Union, foreign Powers have nothing to do : the relations of foreign Powers are with the aggregate Union ; that Union is to them represented by the Federal Government ; and of that Union the Federal Government is to them the only organ. Therefore, when a foreign Power has redress to demand for a wrong done to it by any State of the Union, it is to the Federal Government, nnd not to the separate State, that such power must look for redress for that wrong. And such foreign Power can- not admit the plea that the separate State is an independent body over which the Federal Government has no control. It is obvious that such a doctrine, if admitted, would at once go to a dissolution of the Union as far as its relations Avith foreign Powers are con- cerned ; and that foreign Powers in such case, instead of accrediting diplomatic agents to the Federal Government, Avould send such agents not to that Government, but to the Government of each sep- arate State ; and would make their relations of peace and war with each State depend upon the result of their separate intercourse MCLCOD'a TRIAL :?r. I ty'H fiOV- t of forrc u" utiprii- ilCH, wlio, -illiiit the cciipieil ii it'll, ns iil- e "ititli of )f the tcr. uiiilly of ii nd KCtllcd of justice means of ed nations 3 Hanction snpnged in id it is ob- rravaie be- se the de- lasperation terness of srnment of aught with y of which atrocities ed. loment the lie Federal rfere in the rest solely ly exist be- gn Powers with the he Federal is to them redress to it is to the such power Power can- ndent body is obvious dissolution :s are con- accrediting send such f each sep- e and war intercourse vo with such State, without reference to the rclutions tlioy iniirht hn with the rest. Her Majesty's Govornnicnt apprehend tliiit the above is not the conclusion at which the Government of the United States intend to arrive; yet such is the conclusion to which the arguments that have been advanced by Mr. Forsyth necessarily loail. But, be that as it may, her Majesty's Government formally de- mand, upon the grounds already stated, the iiiunediate rt'lt^asp of Mr. McLeod ; ond iier Majesty's Government entreat the l'i(?sidcnt of the United States to take into his most delilturale consideration the serious nature of the conse(|uences which must cnsuo from a re- jection of this demand. The United States Government will perceive that, in demanding Mr. McLcod's release, her Majesty's CJovernment argue upon the assumption that he was one of the persons engaged in the capture of the steamboat " Caroline ;" but her Majesty's Government have the strongest reasons for being convinced that Mr. McLeod was not, in fact, engaged in that transaction ; and the und(>rsigned is here- upon instructed to say that, although the circumstance itself makes no difference in the political and international question ut issue, and although her Majesty's Government do not demand Mr. McLeod's release upon the ground that he was not concerned in the capture of the " Caroline," but upon the ground that the capture of the " Caro- line" was a transaction of a public character, for which the persons engaged in it cannot incur private and personal responsibility ; yet the Government of the United States must not disguise from them- selves that the fact that Mr. McLeod was not engaged in the trans- action must necessarily tend greatly to inflame that national resent- ment which any harm that shall be suflfered by Mr. McLeod at the hands of the authorities of the State of New York, will infallibly ex- cite throughout the whole of the British empire. The undersigned, in addressing the present oiHcial communication, by order of his Government, to Mr. Webster, Secretary of State of the United States, has the honor to ofTer to him the assurance of his distinguished consideration. H. S. FOX. The Hon. Daniel Webster, Secretary of State. fio. 9. Mr. Webster to Mr. Fox. Department of State, Washington, April 24, 1841. The undersigned. Secretary of State of the United States, has the honor to inform Mr. Fox, envoy extraordinary and minister plenipo- tentiary of her Britannic Majesty, that his note of the 12th of March was received and laid before the President. 46 ii fl V i\ '■i 362 Gould's reporter. Circumstances well known to Mr. Fox have necessarily delayed, for some days, the consideration of that note. The undersigned has the honor now to say, that it has been fully considered, and that he has been directed by the President to address to Mr. Fox the following reply. Mr. Fox informs the Government of the United States, that he is instructed to make known to it, that the Government of her Majesty entirely approve the course pursued by him, in his correspondence with Mr. Forsyth, in December last, and the language adopted by liim on that occasion ; and that that Government have instructed him " again to demand from the Government of the United States, for- mally, in the name of the British Government, the immediate release of Alexander McLeod ;" that " the grounds upon which the British Government make this demand upon the Government of the United States, are these : that the transaction on account of which 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 empow- ered by her Majesty's colonial authorities to take any steps and to do any acts which might be necessary for the defence of her Majes- ty'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 and individually answerable to the laws and tribunals of any foreign country." The President is not certain that he understands, precisely, the meaning intended by her Majesty's Government to be conveyed, by the foregoing instruction. This doubt has occasioned, with the President, some hesitation ; but he inclines to take it for granted that the main purpose of the in- struction was, to cause it to be signified to the Government of the United States, that the attack on the steamboat " Caroline" was an act of public force, done by the British colonial authorities, and fully recognised by the Queen's Government at home ; and that, conse- quently, no individual concerned in that transaction can, according to the just principle of the laws of nations, be held personally answer- able in the ordinary courts of law, as for a private offence 5 and that upon this avowal of her Majesty's Government, Alexander McLeod, now imprisoned, on an indictment for murder, alleged to have been committed in that attack, ought to be released, by such proceedings as are usual and are suitable to the case. The President adopts the conclusion, that nothing more than this could have been intended to be expressed, from the consideration, that her Majesty's Government must be fully aware, that in the United States, as in England, persons confined under judicial process can be released from that confinement only by judicial process. In neither country, as the undersigned supposes, can the arm of the Executive power interfere, directly or forcibly, to release or deliver the prisoner. His discharge must be sought in a manner conformable to the prin- ciples of law, and the proceedings of courts of judicature. If an in- dictment, like that which has been found against Alexander McLeod, and under circumstances like those which belong to his case, were elayed, Ml fully address it lie is Majesty ondence ipted by ited him ;es, for- e release 1 British ! United McLeod insaction empow- 3 and to ;r Majes- 5cts ; and id in that lich they the laws isely, the eyed, by >sitation ; of the in- it of the was an and fully It, conse- siccording y ansAver- and that McLeod, ave been oceedings than this ideration, he United sss can be [n neither •Executive prisoner. the prin- If an Jn- McLeod, ase, were MCLEOD S TRIAL. 36 i pciidinnr against an individual in one of the courts of England, there is no doubt that the law officer of the crown might enter a nolle pro- sequi, or that the prisoner might cause himself to be brought up on habeas corpus, and discharged, if his ground of discharge should be adjudged sufficient, or that he might prove the same facts and insist on tlic same defence or exemption on his trial. All these are legal modes of proceeding, well known to the la\v.> and practice of both countries. But the undersigned does not sup- pose, that if such a case were to arise in England, the power of the Executive Gbvernment could be exerted in any more direct manner. Even in the case of ambassadors, and other public ministers, whose right of exemption from arrest is personal, requiring no fact to be ascertained but the mere fact of diplomatic character, and to arrest whom is sometimes made a highly penal offence, if the arrest be ac- tually made, it must be discharged by application to .the courts of law. • It is understood that Alexander McLeod is holden as well on civil as on criminal process, for acts alleged to have been done by him, in the attack on the " Caroline ;" and hi:i defence, or ground of acquit- tal, must be the same in both cases. And this strongly illustrates, as the undersigned conceives, the propriety of the foregoing observ- ations ; since it is quite clear that the Executive Government can- not interfere to mrest a civil suit, between private parties, in any stage of its progress ; but that such suit must go on to its regu!r.r judicial termination. If, therefore, any course, different from such as have been now mentioned, was in contemplation of her Majesty's Government, something would seem to have been expected, from the Government of the United States, as little conformable to the Ir.v.s and usages of the English Government as to those of the United Str.fes, and to Avhich this Government cannot accede. The Government of the United States, therefore, acting upon the presump*.ion, which it readily adopted, that nothing extraordinary or unusual was expected or requested of it, decided, on the reception of Mr. Fox's note, to take such measures as the occasion and its own duty appeared to recjuire. In his note to Mr. Fox, of the 26th of December last, Mr. Forsyth, the Secretary of State of the United States, observes, that " if the destruction of the 'Caroline' was a puMic act, of persons in her Ma- jesty's service, obeying the order of their superior authorities, this fact has not been before communicated to the Go»^ernment of the United States by a person authorized to make the admission ; and it will be for the court which has taken cognizance of the offence with which Mr, McLeod is charged, to dof 'f^e upon its validity when le- gally established before it." And adds, "the President deems this to be a proper occasion to remind the Government of her Britannic Majesty, that the case of the ' Caroline' has been long since brought to the attention of her Majesty's principal Secretary of State for For- eign Afi'airs ; who, up to this day, has not communicated its decision thereupon. And it is hop'tl Jiat the Government of her Majesty will perceive the importance of no longer leaving the Government of the United States uninformed of its views and intentions upon a n 1 ■ 1 1 "1 ;■ 1 ( 1 ! ;i' I ■ill Me U m - fi: .§ 364. uOULD S REPORTER. subject which has naturally produced much exasperation, and which has led to such grave consequences." The communication of the fact, that the destruction of the " Caro- was an act of public force, by the British authorities, being ime 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, author- ized 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 ordi- nary tribunals of law, for their participation in it. And the Presi- dent presumes that it can hardly be necessary to say that the Ame- rican people, not distrustful of their ability to redress public wrongs, by public means, cannot desire the punishment of individuals, when the act complained of is declared to have been an act of at in other cases ; and the undersif^ned repeats the expression of the de- sire of this Government that no delay may be suflered to take place in these proceedings which can be avoided. Of this desire, Mr. Fox will see evidence in the instructions above referred to. The undersigned has now to signify to Mr. Fox that the Govern- ment of the United States has not changed the opinion which it has heretofore expressed to her Majesty's Government of the character of the act of destroying the " Caroline." It does not think that that transaction can be justified by any rea- sonable application or construction of the right of self-defence un- der the laws of nations. It is admitted that a just right of self- defence attaches always to nations as well as to individuals, and is equally necessary for the preservation of both. But the extent of this right is a question to be judged of by the circumstances of each particular case, and when its alleged exercise has led to the com- mission of hostile acts within the territory of a power at peace, no- thing less than a clear and absolute necessity can afford ground of justification. Not having up to this time been made acquainted with the views and reasons at length, which have led her Majesty's Gov- ernment to think the destruction of the "Caroline" justifiable as an act of self-defence, the undersigned, earnestly renewing the remon- strance of this Government against the transaction, abstains for the present from any extended discussion of the question. But it is deemed proper, nevertheless, not to omit to take some notice of the general grounds of justification stated by her Majesty's Government in their instructions to Mr. Fox. Her Majesty's Government have instructed Mr. Fox to say, that they are of opinion that the transaction which terminated in the de- struction of the " Caroline," was a justifiable employment of force, for the purpose of defending the British territory from the unprovok- ed attack of a band of British rebels and Ai.urican pirates, who, hav- ing been "permitted" to arm and organize themselves within the territory of the United States, had actually invaded a portion of the territory of her Majesty. The President cannot suppose that her Majesty's Government, by the use of these terms, meant to be understood as intimating that these acts, violating the laws of the United States and disturbing the peace of the B-itish territories, were done under any degree of countenance from this Government, or were regarded by it with in- diflerence ; or, that under the circumstances of the case, they could have beeii prevented by the ordinary course of proceeding. Although he rt-'/rets that, by using tlio term "permitted," a possible inference of that kind might be raised, yet such an inference the President is willing to believe would be quite unjust to the intentions of the Bri- tish Government. That, on a line of frontier, such as separates the United States from her Kfitanuic Majesty's North American Provinces, a line long tiiough to divide the whole of Europe into halves, irregularities, vio- letiaen, wn4 eonflicts should sometimes occur, equally against the will oi both Governments, is certainly easily to be supposed. This may be more possible, perhaps, in regard to the United States, with- |.. !r . r r 1 m it; ^i. ^-6 GOULD S REPORTER. o\it any reproach to their Government, since their institutions en- tirely discourajre the keeping up of large standing armies in time of peace, and their situation happily exempts them from the necessity «'f maiiitiiinirig such expensive and dangerous establishments. Ail that can be expected from either Government, in these cases, is good raith, a sincere desire to preserve peace and do justic", the use of nil proper means of prevention, and that if oflences cannot, never- )l)cless, be always prevented, the offenders shall still be justly pun- ished. In all these respects, this Government acknowledges no de- linquency in the performance of its duties. Her Majesty's Government are pleased, also, to speak of those American citizens, who took part with persons in Canada, engaged in an insurrection against the British Government, as "American pirates." The undersigned does not admit the propriety or justice of this designation. If citizens of the United States fitted out, or were engaged in fitting out, a military expedition from the United States, intended to act against the British Government in Canada, they were clearly violating the laws of their own country and expos- ing themselves to the just consequences, which might be inflicted on them, if taken within the British dominions. But notwithstanding this, they were certainly not pirates, nor does the undersigned think that it can advance the purpose of fair and friendly discussion, or hasten the accommodation of national difficulties, so to denominate ihcm. Their offence, whatever it was, had no analogy to cases of piracy. Supposing all that is alleged against them to be true, they were taking a part in what they regarded as a civil war, and they were taking part on the side of the rebels. Surely England herself has not regarded persons thus engaged as deserving the appellation which her Majesty's Government bestows on these citizens of the United States. It is quite notorious that, for the greater part of the last two centuries, subjects of the British Crown have been permitted to en- gage in foreign wars, both national and civil, and in the latter in every stage of (heir progress ; and yet it has not been imagined that Eng- land has at any time allowed her subjects to turn pirates. Indeed in our own times, not only have individual subjects of that Crown gone abroad to engage u civil wars, but we have seen whole regiments openly recruited, embodied, armed, and disciplined in England, with the avowed purpose of aiding a rebellion against a nation with which England was at peace ; although it is true that, subsequently, an act of Parliament was passed to prevent transactions so nearly approach- ing to public war, without license from the Crown. It may be said that there is a difference between the case of a civil war arising from a disputed succession, or a protracted revolt of a colony against the mother country, and the case of the fresh out- break, or commencement of a rebellion. The undersigned does not deny that such distinction may, for certain purposes, be deemed well founded. He admits that a Government called upon to consider its own rights, interests, and duties, when civil wars break out in other countries, may decide on all the circumstances of the particular case upon its own existing stipulations, on probable results, on what its «>wn security requires, and on many other considerations. It may MCLEOD S TRIAL. •.m he alrea'ly bound to assist one party, or it may become botind, if it so chooses, to assist the other, and to meet the consequences of such assistance. But whether the revolt be recent or lonjr continued, they who join those concerned in it, whatever may bo their oHenco airainst their own country, or however they may be treated, if taken with arms in their hands in thi3 territory of the Government, against which the standard of revolt is raised, cannot be denoininated pirates, without tlepa'-'.ing from all ordinary use of laniruage in the definition of ofib'ices. A cause which has so foul an origin as piracy cannot, in its ])rogress, or by its success, obtain a claim to any degree of respect- ability or tolerance among nations ; and civil wars, therefore, are not understood to have such a commencement. It is well known to Mr. Fox that authorities of the hifrhest emi- uence in England, living and dead, have maintained* that the general law of nations does not forbid the citizens or subjects of one Gov- ornme... from taking part in the civil comtnotions of another. There is some reason, indeed, to think that such may be the opinion of her Majesty's Government at the present moment. The undersigned has made these remarks from the conviction that it is important to regard established distinctions, and to view the acts and offences of individuals in the exactly proper light. But it is not t;» be inferred that there is, on the part of this Government, any pur- pose of extenuating, in the slightest degree, the crimes of thosr per- sons, citizens of the United States, who have joined in military ex- peditions against the British Govermnent in Canada. On the con- trary, the President directs the undersigned to say that it is his fixed resolution that all such disturbers of the national peace and violators of the laws of their country, shall be brought to exemplary punishment. Nor will the fact that they are instigated and led on to these excesses by British subjects, refugees from the provinces, be deemed any excusp or palliation ; although it is well worthy of being remembered that the prime movers of these disturbances on the bor- ders are subjects of the Queen, who come within the territories of the United States, seeking to enlist the sympathies of their citizens, by all the motives which they are able to address to them on account of grievances, real or imaginary. There is no reason to believe that the design of any hostile movement from the United States against Canada has commenced with citizens of the United States. The true origin of such purposes and such enterprises is on the other side of the line. But the President's resolution to prevent these transgressions of the laws is not, on that account, the less strong. It is taken, not only in conformity to his duty under the provisions of existing laws, but in fidl consonance wiii^ the established princi- ples and practice of this Government. The Government of the United States has not, from the first, fallen into the doubts, elsewhere entertained, of the true extent of the duties of neutrality. It has held that, however it may have been in less enlightened ages, the just interpretation of the modern law of nations is, that neutral States are bound to be strictly neutral ; and that it is a manifest and gross impropriety for individ- V f , ilk M 368 GOULD S REPORTER. uals to engage in the civil conflicts of other States, and thus to be at war while their Government is at peace. War and peace are high nationiil relations, which can properly be established or changed only by nations themselves. The United States have thought, also, that the salutary doctrine of non-intervention by one nation with the aflfairs of others is liable to be essentially impaired if, while Government refrains from interfer- ence, interference is still allowed to its subjects, individually or iu masses. It may happen, indeed, that persons choose to leave their country, emigrate to other regions, and settle themselves on unculti- vated lands, in territories belonging to other States. This cannot be prevented by Governments, which allow the emigration of their subjects and citizens ; and such persons, having voluntarily abandon- ed their own country, have no longer claim to its protection, nor is it longer responsible for their acts. Such cases, therefore, if they occur, show no abandonment of the duty of neutrality. The Government of the United States has not considered it as r.ufficient to confine the duties of neutrality and non-interference to ihe cf.se of Governments whose territories lie adjacent to each other. The application of the principle may be more necessary in such cases, but the principle itself they regard as being the same, if those lerriiories be divided by half the globe. The rule is founded in the impropriety and danger of allowing individuals to make war on their own authority, or, by mingling themselves in the belligerent opera- tions of other nations, to run the hazard of counteracting the policy, or embroiling the relations of their own Government. And the United States have been the first among civilized nations to enforce the observance of this just rule of neutrality and peace, by special and adequate legal enactments. In the infancy of this Government, on the breaking out of the European wars, which had their origin in the French Revolution, Congress passed laws with severe penalties for preventing the citizens of the United States from taking part in those hostilities. By these laws, it p-^o^ribed to the citizens of the United States what it understood to be their duty, as neutrals, by the law of na- tions, and the duty, also, which they owed to the interest and honor of their own country. At a subsequent period, when the American colonies of an Euro- pean Power took up arms against their sovereign, Congress, not di- verted from the established system of the Government, by any tem- porary considerations, not swerved from its sense of justice, and of duty, by any sympathies which it might naturally f^el for one of the parties, did not hesitate, also, to pass acts applicab o to the case of colonial insurrection and civil war. And these provisions of law iiave been continued, revised, amended, and are in full force at thc present moment. Nor have they been a dead letter, as it is well known that exemplary punishments have been inflicted on those who have transgressed them. It is known, indeed, that heavy pen- alties have fallen on individuals, citizens of the United States, en- gaged in this very disturbance in Canada, with which the destruction of the Caroline was connected. And it is in Mr. Fox's knowledge, MCLEOD S TRIAL. 3oD igin in lalties jart in States of na- honor Euro- not di- ny tem- and of of the case of of law at the is well »n those ivy pen- ates, en- itructi«^-u wledge, also, that the act of Congress of 10th Murcfi, 1S38, was passed for llic precise purpose of more effectually restraining military enter- prises, from the United States into the British provinces, by author- izing the use of the most sure and decisive preventive nicans. The undersigned may add, that it stands on the admission of very high British aulh(trity, that during the recent Canadian troubles, although bodies of adventurers appeared on tiie border, making it necessary for the people of Canada to keep themselves in a state prepared for self-defence, yet that these adventurers were actinia by no means in accordance with the feeling of the great mass of the American peo- ple, or of the Government of the United States. This Government, therefore, not only ludds itself above reproach in every thing respecting the preservation of neutrality, the observ- ance of the principle of non-intervention, and the strictest conformi- ty, in these respects, to the rules of international law, but it doubts not that the worU! will do it the justice to acknowledge, that it has set an example, not unfit to be followed by others, and that by its steady legislation, on this most important subject, it has done some- thing to promote peace and good neighborhood among nations, and to advance the civilization of mankind. The undersigned trusts, that when her Britannic Majesty's Govern- ment shall present the grounds, at length, on which they justify the local authorities of Canada, in attacking and destroying the " Caro- line," they will consider that the laws of the United States are sucji as the undersigned has now represented them, and that the Govern- ment of the United States has always manifested a sincere disposi- tion to see those laws eflectually and impartially administered. If there have been cases in which individuals, justly obnoxious to pun- ishment, have escaped, this is no more than happens in regard to other laws. Under these circumstances, and under those immediately connect- ed with the transaction itself, 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, overwhelm- ing, leaving no choice of means, and no momer.t 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 en- ter the territories of the Uniied States at all, did nothing unreasona- ble 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 un- availing ; it must be shown that day-light could not be waited for ; that there could be no attempt at discrimination between the inno- cent and the guilty ; that it would not have been enough to seize and detain the vessel ; but that there was a necessity, present and inevitabk.. for attacking her in the darkness of the night, while moored to the shore, and while unarmed men were asleep on board, killing some and wounding others, and then drawing her into the current, above the cataract, setting her on fire, and, careless to know r., iif; m '.. 'i \t J70 GOULD S REPORTEH. whether there might not be in her the innocent with the piiilty, or the living with the dead, committing her to a fate which (ills the iinugiiiatiou with horror. A necessity for nil this, the Crovcrnnient of the United States cannot believe 'to have existed. All will see that if such things be allowed to occur, they mnst lead bloody and >rated And wlu idividual jonies into the United States from Canada, and to the very place on which tliis drama was performed, and there chooses to make public and vain- glorious boast of the part he acted in it, it is hardly wonderful that jrreat excitement should be created, and some decree of commotion arise. This republic does notAvish to disturb the tranqnillity of the world. Its object is peace, its policy peace. It §ecks no aggrandizement by foreign conquest, because it knows that no foreign acquisitions could augment its power and importance so rapidly as they are al- ready advancing by its own natural growth, under the propitious circumstances of its situation. But it cannot admit that its govern- ment has not both the will and the power to preserve its own neutrality, and to enforce the observance of its own laws upon its own citizens. It is jealous of its rights, and among others, and most especially, of the right of the absolute inununity of its territory against aggression from abroad ; and these rights it is the duty and determination of this governmenl fully, and at all times, to maintain, while it will at the same time as scrupulously refrain from infringing on the rights of others. . The President instructs the undersigned to say, in conclusion, that lie confidently trusts that this, and all other questions of difference between the two governments, will be treated by both in the full exercise of such a spirit of candor, justice, and mutual respect, as shall give assurance of the long continuance of peace between the two countries. The undersigned avails himself of this opportunity to assure Mr. Fox of his high consideration. DANL. WEBSTER. Henry S. Fox, Esq., Envoy Extraordinary and Minister Plenipotentiary. SUPREME COURT OF THE STATE OF NEW YORK. Wo. 3. ARGUMENT OF MR. BRADLEY. Mr. Bradley addressed the Court as follows : The interest created everywhere by this controversy is no greater than justly belongs to it. This prosecution is the first attempt ever made to hold a man responsible to the municipal tribunals of another country for the obedience which he has rendered to the authorities of his own. And all can see that if it be adopted here, and infused a fruit love of ing dr polled could sage tt Just of the employ ous con ed by t I ween t tlie bou island nation \ MCLEOD S TRIAL. a7i liltv, or ills thr uent of ust lead nic« into lich \.h\-^ nil vaiu- .rfiil thai iniiiotion lie worUl. idi/oiiicnt rjuisitions cy are al- propitious ts govern- neutrality, n citizens. ecially, of ao-gression tion of this vill at the ; rights of lusion, that difference in the full respect, as etween the assure Mr. LBSTER. Iyokk. K |s no greater ittempt ever Is of another authorities and infused into the code of nations, no sngacity can predict the extent of the revolution which must follow. A hrief review of the evidence intro- duced for the defendant yesterday, and the prosecution to-day, while it unfolds the true origin of this question, will show its fearful im- portance. Canada is a far distant extremity of a transatlantic monarchy, but lia\ iug a local government with powers adetiiiate to every exifrency of her institution. Though lately the scene of a transient rebellion, she was now (|iiiet and her peoph; apparently contented. Alonj her .southern honler lay a country of dillcrent institutions, in spirit as in name, republican. Here public meetings were held — arms collected — military stores provided — volunteers enlisted to aid a projected invasion of the Upper Province. On this same soil, the I'nitcd States and Great liritain being at peace, these forces were publicly organized, and an American citizen placed at the head as Commanci- er-in-Chief. Navy Island was their first object, and this they seized. The motives of this invasion — what were they ? To produce war — a civil war, and this too in winter, and to arouse a population of less than half a million to rebellion against a nation whose fortresses belt the globe. Behind them lay the United States, and Sclilossor was made their poim. of communication. In that direction, they looked for recruits, for supplies, for encouragement and succor of every kind. Thither too, in case of disaster, they could retreat, and arm for fresh aggression. All this, and more, they had a right to expect ; because for their support, the shcritrof Erie had been robbed of two hundred stand of arms — twelve pieces of ordnance stolen, and the Batavia arsenal plundered of its contents. And the same lawless spirit was raging along the whole frontier, from Buffalo to Vermont. How was it in Canada the while \ After the event it is easy to he wise, — not so before. She was' invaded by a force, then said, and here proved to have been, a thousand strong — and with what motives we know. One rebellion had just bv-en, and another might come. If it did, all Canadians saw that the journey before them lay through ruined business, desolated homes, and a bleeding land, to a new con- dition worse than the old ; for what chains were ever made lighter by a fruitless efTort to cast them ofT? Motives enough there were, — if love of country, then that, — if fear, that, — if pride, which scorned be- ing driven, even to freedom, by a ruffian band of invaders, that im- pelled them — to what \ Self-dei«!nce. For aught they knew or could then know, their entire safety depended upon closing that pas- sage to Schlosser. Just at this moment, the Caroline appears, moving on the waters of the Niagara ; and no matter by whom owned or with what motives employed, the effect of her presence was toMnake closer that danger- ous connection and more difficult to sever, — a result most to be dread- ed by the Provincials, and most to be hoped by their invaders. Be- tween the isle and the American mainland, runs an imaginary line — the boundary of the two nations. To this line, the cannon of the island would protect her, and beyond it she was in the waters of a nation with whom Great Britain was at peace. Thus our very neu- ;i t' '. y7'2 GOULD S REPORTER. trality wns mnde im instilment of wnr, and the moans of a then in- ciilciilnblc dniiper to the Provitice. 'v The steamer, ImvidjT deposited on the island her weij^ht from above, and transported thither n field-piece and othci warlike instruments from .Sclilosser, wns fastened at the latter place, which, for whatever purposes of the war it had hoon used, was deemed neutral enough for protection. But she had been watched, and was already doomed. An armed force, (whether of regulars or volunteers, is no matter, for in war all citizens are soldiers, and should be prompt at the earliest call,) organized and dispatched by c(»tnmand of the Provincial Au- thorities, appeari'd at midnight by her side, and at once discharging their Jire-arms, and shouting to their utmost voice, leaped on board. Her inmates unarmed and unresisting — some fell, — some fled. On the dock, and dead, Durfce was found. The assailants having fired her, and cast off the fastening chains, towed her into the current ; she drifted slowly down a space, lodged an instant, — was again put afloat. And as the flames, now racing over her burning decks, announced in Chippewa, the success of the expedition, beacon lights there shot up to guide the adventurers back, while the Caroline was left to taJic her own blazing way down the rapids and over the cata- ract, to be extinguished in the abyss below. Hciu allow me to pause a moment to tell the counsel for the pro- secution, that any eloquence they may have to spare on this transac- tion as an unauthorized invasion of our soil by a friendly Power, — an nnjustifiable violation of neutral rights, and demanding immediate and exemplary redress, — will be bestowed in exceeding good place. Such was the view taken by the Federal Government — such, by Gov. Marcy — such, by the American Minister at St. James, whose spirited remonstrance would furnish them an excellent brief. And \Vhen in their reply to my poor remarks, they give vent to the orator's noble fervor of an hour, let them be animated by the consciousness that from within a marine league of the coast, to where the farthest axe has new-hacked the wilderness, few American tracts will be found to say to them. Nay. And I pray that for the occasion, they may be inspired with the power of " those ancients, who shook the Arsenal and fulmined over Greece," to do justice to the theme. And why \ Because in making good that position, they establish ours. For, neutrality is a relation between nations onlj*. 'I'hey alone . can keep, — they alone violate. Individuals, as such, can do neither ; although, acting for their government and by its commands, they may do both. But then their country is responsible. And when the prosecutors shall have driven home this charge npon Great Britain, they will have brought the destroyers of the Caroline and of Durfee within the operation of a principle which can be no more rightfully denied, than can be the mysterious influence which binds the earth in its orbit, — the same principle by which this Court ad- ministers justice, and all are bound to reverence its decrees and obey. For allegiance to their own government and to that alone, is a duty which all men owe and all civilized nations recognize. When under duress of that allegiance, a person violates the rights of another nation, the crime attaches not to the individual, but to the state « stl MCLEOD S THIAL. a:;} .,1 then in- ill above, triunents whatever iiough for (loomed, mtter, for le earliest ncinl Au- jichnrginff on bonrJ. fled. On iving fired current ; ^as again ing decks, icon lights roline was r the cata- ir the pro- lis transac- 'ower, — an immediate cod place. ;h,byGov. )se spirited nd \Vhen in iter's noble isness that arthest axe be found to ley may be the Arsenal And why \ lours. For, alone can do neither ; nands, they And when upon Great )line and of le no more vhich binds IS Court ad- decrees and lat alone, is nize. When ts of another to the state whose helpless and involuntary instrnnient he is, ronsequenlly, he w illy or o obeys Iiih o\.'n governuicnt, can never rtc ni;i(le persona '•riminally responsible for that act by the municipal tribunals of any other. The prisoner is indicted for murder as a priiicipnl in the first and second degrees, and as an accessary before the fact. IJut to them all, this remark is applicable. The conduct co'uplained of, must liave been voluntary. It is not enough that the will assented before and at the time ^ that assent must have beoif uncaused by any of those constraints, either physical, which allow the accused no power, or political, which allow him no right to resist. And bound by this last, is every man under orders from his superior, having, us between the citizen and sovereign, jurisdiction to give them. This brings me to the (|U('( nature. In that state, all were (^qual, — all independent. J'^ach ha\ lug no inferior, gave no law, and having no supt rior, took none. In matters of right, he consulted his own conscience alone, of wisdom. Iiis own understanding, of force, his own good right arm. His mijid, his powers, his members were all his own ; and as /le commanded l/iey obeyed. By one set of faculties, he could preserve peace within ; and by another set, and totally dif- ferent, he could secure it from without. Thus each man was a min- iature nation. But framed as human nature was, some men weak, some rapacious, unions became necessary, and they betook themselves to distinct clusters. And the several clusters stood apart from each other, as equal in rights, and independent in power, as the individuals of whom they were composed had been before. A method was devised to determine what was right, what expedient, and the means provided to effect both. Thus each nation came to have a conscience, an un- derstanding, and a right arm. This is a sovereignty. Each indi- vidual agreed with all, that he would obey; and all agreed with each, that obeying, ho should be protected. This duty of submis- sion is allegiance. This protection the price paid for it. To ensure domestic justice and repose, municipal laws, and muTiicipal courts, and ministerial oflicers and process were devised. The care of ex- ternal justice and tranquillity was entrusted to armies and navies and foreign ministers. And both the departments met in the supreme E-vecutive Head, which gave a unity and identity to the whole. Thus, in all important analogies, each nation is a moral person, and the several nations several persons. The stute framed a code among themselves, by which, and by which .ilL»iie, their rights were to be enforced — by which, and by which alone, their wrongs redressed — the great Public Code of the World. But to return to the internal rights and obligations of the several states : — sovereiglity, embracing the right to judge conclusively for 1$ n ti I: I m 4 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 M 125 ■10 K £»■ I.I ■ 40 IL25 liu 1 2.2 20 1.6 Photographic Sciences Corporation # v :\ \ ^ ^ yj^i U.. % I ^ 374 GOULD s REPORTEH. itself, what is to be done, and the power to use every necessary means to do it, every state has and must have. In what. part of the body politic it may be placed, and throusrh what forms to be exer- cised, are alike immaterial. From the People it originally came, and was by them placed either where they pleased, or where necessity compelled. No matter whether it be vested in one despotic will as in Russia, or in a Q,ueen, Lords and Commons, as in Great Britain, or in the singularly combined and interwoven system enjoyed by us in the United States, there is yet in every state, a Supreme Power, to which all other powers in it must do obedience. Every nation governs conclusively and has a right to govern, — commands in the last resort, and has a right to command, her own subjects. Indeed, withou^ this power and right, she would be no nation. Take them away, and her people are at once landed back in that state of nature whence they had emerged. Co-relative to this right of sovereignty and co-extensive with it, is the duty of obedience. From its obligation none are exempt. To the government, by the very terms of the social compact, all have, as to public affairs, bowed their wills, surrendered their power, and ceded av/ay their rights and obligations. No longer can they do whatever they please, — no longer obey whatever may be the dictates of their own judgment. There is now a power above them whose laws are Supreme — and these, they must not, cannot resist. If they deem the mandate unjust and unwise, thej"^ iriay, indeed, reason and expostulate, and procure a change if they can ; or, they may arise, and overthrow the decree and government together ; that while it remains a law, and they subjects, they must bide their time, and look for better auspices. Meanwhile, however, they have nothing to do but to submit. , So far, indeed, reaches this principle, and such is the gratitude of men for the benelits it has conferred, that the obligation to render it, has warmed into a sentiment, and kindled into a passion, and glows more or less in every — or nearly every human heart, and brightest in the purest. It waits not for the command, but anticipates it, and renders that from love, which the state would hardly venture to ask under the compact. In this form, it is called patriotism or love of country, and has given birth to many of the virtufis which most enno- ble man. Since, then, this right to command, and this duty to obey, are of the very essence, — nay, the very idea of government — it follows, that, whenever one nation recognizes in another a national existence, she recognizes also, ipso facto, the right of that other to exercise this sovereignty, and the duty of the subjects to yield this obedience. For, without them, she would be no nation, — have no government, and could not, therefore, be recognized. The existence of both then, every state which treats her as an independent community, is sol- emnly estopped, — legally and politically estopped — estopped in every form, from denying. And any interference with the subjects as yet in peace, of another, is, per se, just cause of immediate war. And why 1 Not merely on the ground of self-defence, although it disturbs the repose, endangers tie happiness and perils the existence of the •i ;ij(i MCLEOD S TRIAL. 375 I I injured state: but, because, it is treachery, breach of faith, -denying in practice what is stipulated by treaty. Nay, it is worse, far worse, than treachery, because, by striliing at that without which civil organ- i;!ation cannot exist, it is digging away the very foundulion-stone of the social edifice. And if she Avill not desist, her just doom is re- corded by the Publicists when they say she may be utterly extermin- ated. And whyl Because nations, owing their own very existence to civil submission at home, must not either become themselves, or employ others, as the missionaries of disobedience abroad. And al- low me to add, that by nothing is more strongly marked the progress of correct principles and >-ound morals among the nations, than by the Total Abstinence on this subject, now practised by the nations. Since, then, all governments possess this right of sovereignty, and all citizens, while they remain such, owe an equally extensive duty of obedience ; and since the obligation of this duty is unquali- fiedly admitted by the recognition of other iiations ; it inevitably fol- lows, that for whatever any subject or citizen may do, in obedience to his sovereign, and within the range and under the duress of his al- legiance, he cannot be held personally or criminally responsible to the municipal tribunals of other nations. For, what greater outrage can human atrocity perpetrate, than while admitting an act to be duty, to punish the performance of it as a crime 1 No: to his own master stands or falls every citizen, and to his own master alone. Be the act, then, war, or invasion, — general or local hostility, — on a scale broad or narrow — be it the destruction of the Combined Fleet of the North at Copenhagen, or of the Caroline at Schlosser, whenever the command to do it is given by authority having ju- risdiction, it must be implicitly obeyed. Tlie right of sovereignty demands it — the duty of allegiance requires it ; and the recognition of both, by the injured State, pardons it. Between submission and rebellion, there is no middle ground. The citizen subject is helpless, involuntary, and, therefore, unaccountable. He is bound by ties which nothing but Revolution can sever ; and revolution no other state, as such, has a right to give him a single motive of hope or of fear to attempt. Revolution, he may, indeed, try ; but he tries it on his own sole responsibility and at his own proper peril. If the com- mand be such as violates the social compact, it is his right ; but like every other right that is his, he may forego, waive, abandon it, and keep right on in the even tenor of his allegiance. And for doing so, no other state has a \vord of blame and much less a stripe of punish- ment to bestow. If the act be injurious to another state, that is not a matter he may look into to find security for disobedience — to his government he has ceded his control over foreign affairs — she is to judge whether the act be right or wrong ; and as a justification for him, that judg- ment is always right. Not so, however, to the injured state — as to her it may be very wrong. What be wrong ? That judgment, and that command given under it. Who then is culpable ! They who formed the one and gave the others, — not he, the instrument, hav- ing no power to resist, and stipulated by international recognition to have none. He is bound by a political necessity growing out of al- ' !. I 1 I i' li;. :i76 GOITLD S REPORTER. lenfianoc, as stern as matter by the physical, sprincfin^r from gravita- tion. Both, indeed, operate under the same Ahnighty sanction. For, He who has tied the material universe togetlier by the one, has said to man by his Revelation, "Let every soul be subject to ihe higher powers, and they which resist, shall receive to themselves danmation." As well, then, hold the tumbling granite responsible for the devastations of the avalanche, as man personally or criminally for the ruin he spreads in obeying the lawful commands of his coun- try. The United States, then, and Great Britain, have they recognized in each other a national existence 1 By war, by peace, by the De- claration of Independence, by the treaty of 1783, by that of 1815, by the interchange of ministers, — by every recognition which nations can give or nations receive, they are mutually estopped from deny- ing to each other the rights of sovereignty, and from disputing in the citizens of each other the duties of obedience. By these acts, done unrler the highest national solemnities, the United Stateg are concluded — throughout all their borders — not the Union alone, but all its parts — New York and its Courts — this Court — and the one above it and all below it. I know the sacred tocsin of State Rights — which, however, is of late losing its just reverence, by being rung at every bonfire, — has been pealed through the country. But what of it '! Were New York struck off from the Union and formed into a separate Empire, — could she deny to Great Britaina national existence ( By her North - cm Boundary, by her name, by her Constitution which adopts the English Common Law, — by that very Common Law, thus adopted, on every bright page of which it is written that the country wher- ever it came has a Supreme Power which all the other powers must obey, — by these, one and all, she would be held to take notice that Great Britain was, like herself, an independent State giving com- mands and laws, and exacting obedience. In the Union then, ox out of it, it is the same with New York. Her people are concluded, and all her servants, from the lowest to those who sit in high au- thority on the summit. What then is the easel Is it denied that the affair at Schlosser Avas an armed invasion of our soil ? — denied that the invaders were a part of the Canadian public force \ — denied that they came by command of the Provincial Authorities'? — denied that the power to give this command had been previously conferred, and the exercise of it subsequently ratified by Great Britain 1 None of these do, or will the prosecutors question. When the command came, then, were not those to whom it was addressed bound to obey 1 Did not that command as between themselves and their sovereign, put them on their allegiance 1 Volunteers or no volunteers, undoubtedly it did. Are they criminal then 1 Misapplied as it may have been, and often will be, the principle itself of submission to constituted au- thority, acting in self-defence, and repelling lawless invasion, is sa- cred — and never yet, even in its wildest errors, has been held a crime. No ! wrong as may have been their fearful errand, the destroyers of the Caroline started on it, that gloomy night, led by no motive which at s .11* MCLEOD S TRIAL. 377 i t one or out •hlosser frs were a me by )wer to txercisc do, or 1, then, iDid not It them tedly it len, and Ited au- is sa- . crime. /^ers of which any municipal court can hold to be malice aforethought, or instiga- tions from the source of All Evil, but by that highest constraint known to civilized man — the duress per patrium^ — that coinpnlsion by which nations stand, — to whicli they owe all that is valuable in public order, — all that is splendid in public glory, and without which they would crumble down and disband, and mankind be thrown again at large, accountable to no superior and restrained by no law. The whole transaction, — what is it but a transgression by one in- dependent nation upon another \ By what code, then, is it to be tried 1 By that and that alone which defines the rights, and pun- ishes the wrongs of the communities of the world. . But the sanctions of this code, — are they administered by the municipal courts of New York ^ No: These are a part of the ma- chinery devised to ensure domestic, not international justice. They are framed to deal with citizens, — individual offenders who set up business for themselves and do crimes on their own account. Ex- '.unining magistrates commit n6t for wrongs done by one independent community upon another. The juries by whom indictments are found, are the Grand Inquests, not of nations, but of their own par- ticular County. No: The tribunals for the correction of interna- tional wrongs begin at a different place, proceed on diflerent princi- ples, are guided by different rules of practice, and in whatever else they may result never end by bringing tiie issue to trial before a jury who would be compelled by their allegiance to take side with the country on whose injuries they would be called to deliberate. Even then, if New York were an independent nation, over this matter her tribunals would have no jurisdiction. But she is not. So far as Gr ^at Britain is concerned, she is but a fragmentary portion of a nation. She has no external relations, can make no treaties, send or receive no ambassadors ; not even surrender to Canada a poor trembling fugitive from justice How then can her courts take cognizance of national wrongs 1 But we are told an indictment has been found. But can an indict- ment confer jurisdiction! Consent cannot, — a plea of guilty would not, — a statute of New York, in a case like this, or of the United States, could not. How can an indictment then! What is an in- dictment I Simply the declaration in a criminal suit — and who ever heard that a defendant in a civil suit, arrested by process from a court having no jurisdiction, could not be discharged after declara- tion filed 1 True, the indictment has been found by a grand jury. But for whose benefit is that jury impannelcd 1 Civil prosecutions may be commenced at the will of flie plaintifl^, but the criminal are more oppressive. The law, in mercy to the defendant, then, declares that no suit of that kind shall be prosecuted at the will of any one man, and that the accused shall not be put on trial till the jury has looked into the cause for it. If they find cause, then he is in the same situation as a defendant in the other class of cases, after declara- tion on file. Then, if the court had no jurisdiction before, how can a grand jury, a part of its own machinery, give one 1 It is the law and the crime wliich confer jurisdiction ; and if New York has not the supervision of international transactions, how can an indictment 48 ) ■ . I ! i 378 GOULDS REPORTER. give it 1 What mighty magic has this document, that it is of force to hold the prisoner in confinement against law — against the Con- stitution, making the court powerless to discharge, though having no jurisdiction to try 1 • Another objection to a discharge is that Durfee was not killed on the boiit, and that his death was not necessary to her capture, and therefore the killing of him exceeded their commands. Whether his death were necessary or not, is unknown. But what if it were .' What was the nature of that invasion 1 The message of Governor Marcy tells — the remonstrance of Mr. Stevenson tells— the negotia- tions between the governments toll — it was a hostile invasion, an en- try of our territory with an avowed public force, in defiance of our laws and under the authority of a foreign government. What is that but war 1 Temporary, indeed, but yet war, and while it lasted, just as much so as that of the revolution or the one which followed it. If the force be public (was this publicl) and put in motion by national authority — (was this so moved 1) and exert itself by armed aggression — (was this so exerted 1) it is then war. Will they con- tend that it wiis peace '! Not the amount or continuance of force, but the authority by which it is moved, gives it character. Our minister at St. James's calls it hostility, open hostility and undisguis- ed — and when this is committed by an independent nation, who will say that it is peace 1 And if it be war, who ever before heard — wh(» will ever again hear that excess of violence gives the municipal tri- bunals of the invaded nation, jurisdiction of the offence 1 Invaders owe the municipal laws of the State they enter, no obe- dience, because they owe the State none — the flag they march under shows the country they serve. The law under which they come is found in that chapter of international law devoted to war ; and under that or some other of the same code, must crimes be punished. Ex- cessive violence 1 The very nature of war is outrage. Every evil passion common to man and the tiger is put forth. What, then, if Durfee were needlessly slain 1 The transaction still is national : and Great Britain must answer the consequences. Whether he fell a mile or a yard from the boat, or on it, is, then, quite immaterial. The whole prosecution is founded on one fundamental error, that the subjects of one State acting within the territory of another, in obedience to their sovereign, and as part of his public force, are re- sponsible to the municipal laws prevailing where the act is done. But what obedience owes the American Minister at St. James's, or the humblest servant in his household, to the laws of Great Britain 1 He is there on the business of his sovereign — he is bound by laws un- doubtedly, but not of her majesty — she has none for him. So in all cases. Foreigners come for their country or for themselves. If the latter, the municipal laws reach them — if the former, otherwise. The affair is national, and to their nation belongs the liability. Why, then, should not the prisoner be discharged ! For what should he be put on trial 1 To find the facts showing want of juris- diction 1 Here they are — undisputed, indisputable, — found already. But it has been said in those quarters whence, if not legal arguments, speeches for courts of justice are sometimes drawn, that his trial is I' I (» 1 >* 1 MCLEOD S TRIAL. 371) of force he Con- iving no billed on lire, and ether his t were ? Governor iicgoliu- •n, an en- o of our What is it lasted, followed notion by by armed they con- ; of force, ter. Our undisguis- , who will jard — who nicipal tri- er, no obe- arch under [ey come is and under ished. Ex- Every evil jat, then, if tional : and Ir he fell a itcrial. error, that another, in Irce, are re- ;t is done. les's, or the ritainl He ly laws un- So in all res. If the ■rwise. The For what int of juris- Ind already. ] arguments, his trial is k necessary for the dignity of the State. Dignity of the State ! V\ hat dignity is there in injustice ? What dignity can she derive from iier Courts holding in durance a man over whose conduct they luive no jurisdiction ! What dignity can she hope from her tribunals usurp- ing cognizance of the affairs of nations ! Dignity! because his re- lease liiis iKit boon refincsted, but demanded ! Hoons are craved, favors asked, but rights demaiuled — and if the courts have no juris- diction, I ask, if ills release be not a right to be demanded ? It is MOW some twenty years since the occurrence of an event at the other extremity of the Union — whatever analogies it may have to the affair at Schlosser, this is not the place to urge them, or to repel. Florida was invaded: and I am willing to grant here, wliat I would not elsewhere — that the transaction was illegal, and that the chieftain by whose orders it was done, exceeded his authority, and that he merited all that was charged against him by the illustrious son of Kentucky, whose eloquence, like the sacred bolts of ancient Jove, sometimes hallows what it strikes. When that army was as- sembled, and their chief, with the laurels of New Orleans fresh on his brow, placed at its head, their country said to them : — for it is hardly a figure to give nalions a tongue — they speak by their laws, by their constitutions, by their authorities, by the very situations in which they place their citizens and then leave them in silence — she said, "Him, wc trust, and do you obey. He will sIkjw you the foe : when you find them, — this banner, while it is the covenant of our protection, let it be the incentive to your duty." The invasion is over, the army returns — one of the gallant men, a private, suppose, ventures to Spain, is arrested, and the municipal courts go about to try him for murder. Who says, who dares say, that his release would have been craved as a boon, or even asked as a favor \ Would our Minister have gone crawling to the head of Foreign Affairs, crouching before any dignitary of that nation, trailing the stars and stripes in the dust behind, and most humbly implored his discharge I No: that soldier had performed his part of the compact. He had no longer a duty, but a right now. He had obeyed — the price was his due — that price, protection. His right was high and holy — it would have reached forth and laid hold on the national faith — the national honor, and clutched every sinew of the national power. Begged as a boon, would his release have been? No: demanded as a right. Tl'.e same eloquence which had flashed around his Chief to destroy, would have beamed over that distant and lowly private to illumine. No "fathering of navies — no musterinsf of armies would there have been ! If the country had not torn open that man's dungeon, or planted her banner on his grave, she had deserved to be blotted from the race of nations. Dignity to tryMcLeod! Call it rather the sacrament of infamy — baptism into disgrace. This I repeat is a national affair ; the wrong was national ; and such be the redress. To the authorities at Washington and St. James's it be- longs. Let them settle it amicably if they can ; if not, let them arbitrate. This failing, let them muster their armies,call home their navies, and go to trial at the Grand Assize of Nations and take the solemn adjudica- tion of God as to the right. But never let a nation, calling herself Si! I ^ nbo GOULD S nEPORTER. ♦Mvilized, just, humane and Christian, wreak her venf^eance for a na- tional wronpf on an tinprotected and humble individual, guilty of no l)elheir» case: ]{i'x vs. Uethell, 1 Salk. 'WJ. The Court refused to discharfjc on Habeas Corpus, althoun^h the connnitment hold nau^rht, hut left the prison<'r to his writ of error. The defendant had heeii indicted. If thes(> points are correct, — if it is true that this Court cannot look hehind tlie iinlictment, and sec the evidence on which the grand jury found their verdict, — therefore, as a nnitter of course, tlie pro- visions of the statute could not bo extended to a prisoner after indict- • ueut, ami the ar«fumenl would end there. The Sheriir shows a regu- lar and legal return, and that ends ti»e case in this Court. I re<^ret heiui^ compelled to go into any further arirumrnt on this point, hut as the Court expected the ease to he placed fully helore them, unci as the counsel on the other side went into general consid- erations, 1 will also proceed, and examine what are the facts and tlie scope of tliis case. It is no more than this. There was a strong excitement existin;, along the borders, and men on both sides were arrayed against each other. A rebellion broke out in Canada, and some of the rehels who fought there lied here, and excited the sympathies of some of our citizens. They went hack to Navy Island, which is hcyond our ju- risdiction, and some of our citizens followed them, and there were great apprehensions of violence, both in Canada and in our territo- ries. And if the Court will look at the papers in this case, they show that our governments at Albany and Washington were doing every thing they could to prevent an infringement of our obligations with England. The District Attorney of the United States, and of this State, and all the oliicers of the government at Albany and Wash- ington, evinced the greatest desire to prevent any collision between our citizens and the subjects of England. And the letter of Mr. Rogers of BufTalo, the District Attorney, distinctly said that the crisis was past, that our people were quiet, and that the patriots had left there, and then the danger was in a great measure overcome. Under these circumstances this midnight murder in our territories was made, and Durfee, one of our citizens, was murdered on our own shores. And after this murder had remained for three years without any explanation or satisfaction from England, the hand that commit- ted the deed, the man that said he killed Durfee, is found within our jurisdiction, brought before our magistrate, and proved on the strong- est evidence rarely brought before a committing magistrate, guilty of murder, and the magistrate commits him. And I might say mclkod'h trial. 3er) Is who of our our ju- jre were territo- ise, they doing igiitious and of Wush- )et\vcen of Mr. le crisis lad left strong- ;, guihy ght say more : that nt that time every effort wiih iniuh^ to hnvo him discharg- ed, lie was nrge«l to get liis witnesses to prove an alihi, that the rnagisiriites might h't him tjo, hut the pris out. The horders were inllnnuMl, as ihey will prohahly l)(! again ami again, as long ns (.Canada iH under one Hovereign and this state iintler dillerent juris- diction. The next (|neslion is, if the court will go heyond the indictment, what facts will the Court consider. 1 cfiiiteinl that the Court cannot consider any iiu'ts iiliit/nlc, excr-jjt what go to the illegality of tlie commitment or deteniion, not to the guilt or innocence of the party. The words in the statute, ""entitled to his disctharge," are imt e((uiva- lent to the words not guilty. Sections I'i and ['.i instruct the Conn to in(|uirc as to the legality of the commitmenl, hut an iuquiry as to the legality of his detention hy no means involves an in(|uiry as to his guilt or innocence. The distinction is a hroad «>tie, and essential to he nutde ; and if the Court does not make that say it was le transac- t alter the feet of that astification admitting lis then to If our laws. Iner, it is a les not in Jiaving ma- ^ovemment , fair issue for the jury. If he did it from duty and not from malice, I presume the jury will find iiim not guilty of murder. I presume, if the order of the British Government is to have any effect, it must he in this way. I see no other way. I can see no rea- son why a foreign order can have an effect different from an order of our own government ; and if such a Axet could prol(;ct one of our soldiers, in order to do so, it must be placed before a Court and jury, and not before a Court to be tried as a mere abstract question of law. If it is to have any effect, it is a matter for the jury to consider, whether the prisoner out of his own malice killed Durfee, or whether the evidence in the case gives the murder such a color a.s it receives in the language of the avowal by the British Government. The ground on which the British Coveniment makes the demand, is that the transaction for which McLeod was arrested, " was of a publi*c character, planned and executed by persons duly empowered by her Majesty's colonial authorities to take any steps, and to adopt any acts which might be necessary for the defence of her Majesty's Territories, and for the protection of her Majesty's subjects, and consequently they were doing their duty, &c." If I understand the effect intended by this, 't is to put the trans- action on the ground that the prisoner was not guilty of any criminal act, but was performing an act of duty. And if it were his duty to kill Durfee, it was consequently not murder ; and the jury will so find it. This alleged question of duty clearly involves a matter which must go before a jury, to try whether he was right or wrong, but cannot be a proper question for the decision of this court. And the question of law as to whether he was legally arrested and detain- ed, has nothing whatever to do with the question of duty. It seems to me that there arc insuperable difficulties in the way of the Court taking a different view of the matter. The Court must say was this invasion right or wrong, which fact could not be presented now. There is also another question, which perhaps as a question of law this Court could decide, which is, supposing that the party acted under illegal orders, whether those orders would be a protection for them. Another question would be, Avas the party guilty of any excess in executing his orders 1 If he went beyond the order or aside the or- der, that would be a question for a jury, and I think that question alone would be fatal to this motion; for that is a question oi which this Court cannot judge. Whether there was excess in this case, is a question -vhich should go before the jury under the restrictions o( the Court, to find a verdict in it when all the evidence was brought out. Another suggestion arises, which is, that in considering the ques- tion in that way, the Court can give the same effect to the order which would be given to it by a court in England. They have made the case their own, and ought to be satisfied if the same laws which they boast of are here administered and In the same manner. If the Court ought to consider this order as a justification, i^is of course a question for the jury, as that would be giving to the order of the i I II: ■n I' Hi. 398 GOULD S REPORTER. Rritish Government, the same effect which would be given to it in a court of England. In the case of Gardner, Kelyrig's Rep. p. 46, he and nineteen others were indicted for breaking open the house of Hutchinson in Cheapside, and the evidence was, that Darlington, the Secretary of State, by order of the King, made out an order to arrest certain men, and he heard they were then holding a meeting at Hutchinson's house. Some of the soldiers broke open the house and some of them took away articles from it. Here was a case where soldiers acting under the order of their own government were indicted. There was no objection interposec. that they had acted under the orders of the Secretary of State. The Court did not in this case obey the mandate of the Executive, but opened the laws and laid down and carried out the laws. Here was a case in England, some- v/hat similar to the one that occurred here. There the party arrest- ed men illegally, broke open doors, and stole away articles. This was not m pursuance of their orders, neither was the killing of Dur- fee in pursuance of the order to destroy the Caroline. If then the motion now before the Court prevails, you will then be administering the law to the prisoner, not as it would be admin- istered to him in England, or as you would administer it to our own citizens acting under the order of an executive officer iu our own country. And I will ask the counsel when summing up, to show that the order of an executive should have more efficiency when execut- ed by foreigners on our own territories, than it would have when executed by our own citizens on our own soil, or by the same foreign- ers on their own soil. I will now ask this Court to consider this order in the only other point of view it can be considered, as a ground on which the Court can discharge the prisoner Let us suppose him to be guilty, and that this order is to have the effect of protecting the party from the authority of the laws of this State. In that view it would be a pertinent question for discussion, on this motion, and in no other view of it. Considering it in this way, there are three propositions which are to be considered before thu prisoner can be discharged. The first is, was the order of the British Government sufficiently authenticated by the avowal of the British minister 1 It would be more satisfacto- ry to have the order itself, but the authenticity of it is not contested. The second proposition is that the order is not set forth with suffi- cient particularity in the letter from Mr. Fox to Mr. Webster, to show that it covers the act for which the prisoner is indicted. The third is that the order from a foreign government can protect a mur- derer from trial in this btate. As to the second proposition, the order in the letter from Mr. Fox to Mr. Webster is not sufficiently definite for the Court to act upon it. That letter says that the transaction for which the prisoner has been arrested, was " planned by persons empowered by her Majesty's Government." Was the transaction which these persons planned, the murder of Durfee 1 Such a supposition is absurd. What it wa» MCLEOD S TRIAL. 389 Ik to It m a nineteen jhinson in jretary of St certain tchinson's I some of er of their under the I this case s and laid and, some- irty avre st- iles. This ng of Dur- a will then , be adm in- to our own ill our own show that ;ien execut- have when me foreign- only other the Court to have the aws of this discussion, which are The first is, thenticated satisfacto- contested. with suffi- W^ebster, to cted. The tect a mur- om Mr. Fox to act upon risoner has ;r Majesty's ns planned, l^hat it wai we are left to guess, and without looking to public rumors for inform- ation, this Court cannot know what that public tianmction was. We know from public rumor that it was to destroy the Caroline, but we have not the authority of this letter for it. The Court must therefore see from this document it is not sufficiently definite to show that the transaction it speaks of is the occurrence for which the Grand Jury have found their indictment. It also says that they were authorized to take any steps necessary for the defence of her Majesty's subjects. Can this Court decide that the murder of Durfee was necessaiy for the defence of her Ma- jesty's subjects. Thus far the Court must go. The Court must say that the murder was necessary under the order for the protection of her Majesty's subjects. The third proposition, which is the main point of the whole dis- cussion, is that the order of a foreign government will protect its agents from trial, though guihy of murder. We assume that the charge is true. No matter what his guilt. We shall not inquire into it, and must assume that he is guilty. And we must then as- sume that the order of a foreign government can protect them from a trial in this State, although gi\ilty of murder. The proposition re- lies on the order, not as a justification, but as a protection. In connection with this proposition I will answer some of the other propositions of the gentleman who addressed the Court on the open- ing of this case. Some of those propositions are false, and some of them are true, but have no application to this case. He laid down that whatever a man does by order of his sovereign, he cannot be held personally responsible for it. That, generally speaking, is a true proposition, hut it is only true as regards his own sovereign, as concerned, and to far as the order is duly carried out and not deviated from. But it cannot be inquired into between him and his own sovereign if he went beyond the order. But between him and any other sovereign it hass no application. The gentleman said that the person would be subject to punishment if he did not obey his sovereign, but that has no application here, as the prisoner was a volunteer and a citizen, and not acting under involuntary or compulsory orders of his sovereign. Vattel says that those not belonging to the army are not recogniz- ed by the usages of war, and if the peasantry mix in war they are not entitled to the privileges of men, but are cut down wherever they are met. The prisoner was a civilian and not an officer of the army or navy, but volunteered to follow Capt. Drew " to hell." If then he was a volunteer to do things in violation of the laws of God and man, I do not know any principle of national or municipal law which can cover his conduct. In the times of the Roman republic, soldiers Avere sworn, and none others were entitled to the laws of war who were not so. And Vattel says that none but soldiers and sailors are "entitled to the usages of war. And if civilians, (like the prisoner,) go and place their consciences in other men's hands, to do he knows not what, or I >• 390 GOULD S REPORTER. go he knows not where, he cannot be protected by such an order, for he makes the act his own. The gentleman has stated other propositions, in which there is some truth : that the law of nations is part of the common law, and that every nation and every citizen of every nation is bound by the lav.' of nations. And it is an essential principle that every one sub- ject to tiie law must know that law, and cannot plead ignorance of it. Therefore, if tiie law of nations is the common law, and the pri- soner is guilty of murder under that law, he cannot plead ignorance in his defence. It is not true that a subject is bound to obey the orders of his sov- ereign, no matter how much his conduct will injure other nations or individuals. He is bound to act in conformity with the law of nature and of nations, and he is legally and morally responsible to do so. It is said that the destruction of the Caroline was an occurrence of war, and that therefore the civil courts are ousted from taking cognizance of it. In the case of Arbuthnot, those who opposed what was done by General Jackson, said that Arbuthnot should have been turned over to the civil courts, and it was not replied that such would not have been the right course, but that there were no civil courts there to try him. But it was conceded on all hands that he. General Jackson, might have given up those men to the civil courts had there been courts in Florida to take charge of them. I will now proceed with the discussion of the great and main pro- position : Is there any power in this Court to discharge the prisoner, without reference to his guilt or innocence, but merely that there is an order of the British Government to protect him from our laws 1 This order must have a binding effect on this Court in one of two ways. It is either an act directory to the court emanating from a superior jurisdiction having power to issue it, or derives its efficacy from some general law, binding on this Court. As to the first there is no pretence that an order from the English Government has power to bind this Court. Secondly, I deny that there is any laAV, municipal or national, which gives efficacy to this order, so as to make it binding on this Court. It is conceded that the law of nations is part of the common law, of which this Court has jurisdiction. Blackstone says that " in arbi- trary States the law of nations, wherever it contradicts, or is not pro- vided for by the municipal law of the country, is enforced by the royal power ; but since in England no royal power can introduce a new law, or suspend the execution of the old, therefore the law of nations, whenever any question arises which is properly the object of its jurisdiction, is here adopted in its full extent by the common law, and is held to be a part of the law of the land." 4 Bl. 67. So that in England no royal power can ever alter or suspend the law ; and no royal order can suspend it here. It is therefore a part of the common law over which that Court has jurisdiction. I say that the whole expedition from beginning to end could be MCLEOD S TRIAL. 391 I an order, h there is 1 law, and ind by the y one sub- orance of nd the pri- ignorance of his sov- nations or he law of responsible occurrence rom taking IS done by lurned over 1 not have rts there to il Jackson, there been [ main pro- le prisoner, lat there is )ur laws 1 one of two ting from a its efficacy ;he English )r national, ling on this immon law, \t " in arbi- is not pro- rced by the introduce a the law of the object le common Bl. 67. So d the law; part of the d could be brought here and passed on as part of the common law, the adminis- tration of which is committed to the charge of this Court. I do not propose to go into the question of the jurisdiction of the United States courts and State courts. No doubt this would be a proper matter for United States legislation, or it would be a proper matter for the United States Court. Perhaps the Constitution is suf- (iciciiily broad to cover a case of this kind, and therefore any act might be passed to declare whicli Court, Circuit or District, should take jurisdiction of it. But no such act has been passed, and there- fore no court of the United States has jurisdiction of the case. And if so, where is the murderer to be tried 1 Not in the State Court, be- ciiuse it is a question of international law. Not in the Court of the United States, because they have no jurisdiction of the offence. Not in Canada, because it is not within their jurisdiction, and the counsel would thus send him again abroad with his brother's blood upon his forehead, if the case is, as we assume it to be, one of rancorous malice. I, however, do not mean to be understood as expressing an opinion of his guilt, except for the purpose of this argument. The law of nations is made up of the national law, the customary law and treaties. — 1st. Kent's Commentaries, p. 3. In which branch of this law of nations can be found the principle contended for by the gentlemen of the other side 1 There is nothing in the treaties between the United States and Great Britiin that an order of the English Government should pro- tect her subjects if they murder our citizens. There is no such principle in the national or moral law. That law condemns the murderer in as strong terms as our municipal law, and even forbids the unnecessary shedding of blood in open war. " It is an untrue position, when taken generally, that, by the law of nature or nations, a man may kill his enemy ; he has only a right to kill him in particular cases — in cases of absolute necessity for self- defence."—!. Bl. Com. 411. The principle is therefore to be found neither in treaty stipulations nor in the national or moral law. Is it to be found in customary law ^ Has it ever been the practice, as collected from the history of nations, for one nation to send such orders to be executed on the territory of another 1 Has such an or- der ever been considered valid 1 If such a military order is valid why not a civil one, emanating from the same sovereign 1 And whe- ther it is of a military or a civil character, what difference does it make in the offence I If the sovereign of England can make an order to send soldiers and burn Buffalo in time of peace, why can he not make an order for a sheriff of Canada to go to Rochester and arrest McKenzie 1 And if he kill him when making the arrest, why should not the order protect him from trial 1 Can the gentlemen point out to me any difference, or why a civil order should not be as effica- cious as a military one 1 I will now call the attention of the court to some authorities to show that invasions of this sort, by orders of a foreign government, •^ ^' '( Um !i % i *• I i 392 Gould's reporter. whether civil or military, are always held a violation of national law, and are left to be dealt with by the jurisdiction within which the crime is committed. I refer you to Vattel, b. 11, chap. 7, sec. 93 ; who says that foreign nations " cannot, without an injury to a State, enter sword in hand into his territories, in pursuit of a criminal, and take him from thence." Thus trampliujD^ on the rights of the State or territory which they invade. It is called a violation of the territory, and that nothing should be repulsed with more vigor. The instructions given by President Monroe to the commissioners at Ghent, contain this declaration : " Offenders, even conspirators, cannot be pursued by one power into the territory of another, nor are they delivered up by the latter, except in compliance with treaties, or by favor." See Monroe's In- structions to the Commissioners of Ghent. Vattel, b. 3, ch. 2, sec. 15, p. 76-i, shows that the order from a foreign government will not protect a subject from execution. He speaks of foreign enlistment of soldiers within other territories, and says that foreign recruiters are hanged, and justly, as it is not pre- sumed that their sovereign orders them to commit the crime ; and if they did receive such an order, they ought not to obey it, the sove- reign having no right to command what is contrary to the law of nations. Here is authority that a subject is not bound to obey the order of his sovereign involving the commission of crime. I refer again to Vattel. B. 3, chap. 6, sec. 68 : " Nothing of all this takes place in a war void of form and unlawful, more properly called robbery, being un- dertaken without right, without so much as an apparent cause. It can be productive of no lawful effect, nor give any right to the author of it. A nation attacked by such sort of enemies is not under any obligation to observe towards them the rule of war in form. It may treat them as robbers. The city of Geneva, after defeating the at- tempt of the famous Escalade, hung up the Savoyards, whom they had made prisoners, as robbers who had attacked them without any cause or declaration of war. Nobody offered to censure this pro- ceeding, which would have been detested in a formal war." This would be the case in the present transaction, if, instead of McLeod coming here three years after the invasion, he was taken at the moment and hung up. Then it would have been exactly the same case as I have cited. In the case of John Baker, a report of whose trial is to be found in the House documents, No. 90, 20th Congress, p. 308. In this case Baker was a citizen of the State of Maine ; and on the 4th of July, 1829, he invited some neighbors to dine with him, and put up the flag of the United States and a liberty-pole. For so doing he was arrested by the authorities of New Brunswick, ahd was tried and sent to prison, and remained there seme time, when he was enlarged. ' And all this time our government solicited his discharge. There was a question as to the jurisdiction of the place where Baker lived nal law, lich the foreign in hand im from ich they nothing issioners le power lie latter, iroe's In- from a ion. He tries, and J not pre- le ; and if the sove- le law of obey the » in a war being un- ause. It he author inder any It may ig the at- lom they lout any this pro- istead of taken at actly the )e found In this le 4th of put up doing he tried and snlarged. There ker lived MCLEOD S TRIAL. 393 when he put up the American flag. Both nations claimed it, and the question wjis pending as to whom the territory belonged. The Bri- tish authorities, however, did not let the individual question bo merged in the national (juestion. They held him personally respon- sible, and tried and convicted him, although negotiations were then going oVi at Washington and London. In May, 182S, there was a letter from Mr. Lawrence to Lord Aberdeen ; he holds the following language : " How far the United States may regard it as an aggra- vation of their original complaint, that the prosecution of New Brunswick was proceeded with during the pendency of a diplomatic discussion on the right to arrest Mr. Baker, and that he was brought to trial more than two months after a lormal demand for his release had been made by an American government to the British minister residing at Washington, must rest with the President to decide." This demand was made on the ground that the jurisdiction of the place belonged to us. But though it was a public affair, and then the subject of negotiation, the British government refused to re- lease him. Another case, that of Ebenezer Greely, which took place a year since. — See House doc. 1st, 1st Sen., 25th Congress. See his letter to Governor Dunlap, 12th June, 1837. Also Steven- son to Palmerston, Sen. doc. 197, p. 7, 1841. Palmerston to Steven- son, H. doc. p. 9 and 10. In this case Greely, an American citizen, was sent to Madawasca to take the census, and for so doing was sent to jail by the authori- ties of New Brunswick. A demand was made for his release ; but it seems that the British authorities were not then so expeditious as they seem disposed that we should be now. For, after much discus- sion, the British government declined surrendering Greely, as they had formerly declined surrendering Baker. It is true, that in this case there was a question of jurisdiction, as to who Avere entitled to the soil, but that did not prevent them detaining the man. Apply this case to the question before us, and, according to the argument which has been used in this case, it was a national affair, and the pri- vate injury was swallowed up by the national one. And it should only have been necessary to show an English court that Mr. Web- ster and Mr. Fox had it under discussion, and the court would of course immediately take his chains off and set him free. Was it so when the rights of our citizens were at issue 1 We asked for his release, because we owned the soil, or at least it was a disputed question, and neither party by mutual understanding was to exercise exclusive jurisdiction over it. But they said that this man, who raised the liberty pole, had committed a treasonable offence, Avhich could not be passed over with safety. They did not make it a question between the two nations, but seized the man, and said that their laws required that he should be punished. Does not this reasoning apply here 1 And shall we let our Canada neighbors come here and commit murder 1 And shall we tell these bandits, if you come on our shores and murder our citizens by order of your government, you only do your duty 1 And shall we thus let men escape punishment both here and in Canada on the equally 50 !' f 11 •!^ 394. GOULD S REPORTER. novel and absurd doctrine, that there is no jurisdiction to try tliem \ A doctrine so monstrous that it couUl never be received by any Court, or can it be supposed that it was ever seriously urged before any Court ! I will lake you a step further, and show, that by the law of na- tions these illegal orders are discredited even by the usages -of war. Vatlil, book 3, chap. 8, sec. IM, speaking of whether an enemy may be assassinated, condemns it, and says that the assassins should be considered as murderers. He speaks of soldiers getting into the camp of an enemy and killing the general ; and he said that even though lawful, the persons doing it, when afterwards taken, were al- ways executed. I will now refer to what is a matter of history. In our revolu- lionary war, when an attempt was made by Sir Henry Clinton to send men to corrupt the soldiers of the Pennsylvania lines, these men were taken, and General Washington ordered them to be imme- diately hung. — 4. Marshall's Washington, 368. Where then is it to be found in the prtictice of nations, that an in- dividual is never held responsible for executing the orders of his sovereign 1 There is no such principle in war or peace. When the order was unlawful, it was never held as a protection for the men that execute it. 1 was surprised to hear the gentleman say that it was dangerous to establish such a principle. And I said, that I thought it was more dangerous to establish the doctrine, that a sovereign can protect his own acts in a foreign territory. Gnce establish sucli a doctrine, and every petty expedition of marauders becomes a war, as the men who commit it cannot be held responsible, and there is no resource left but the sword. Such must be the consequence of establishing the doctrine that the individual is never to be held responsible, but in every case the nation. There is another ground assumed here, that the offence of the in- dividual is merged in the national offence. I cannot solve what is meant by such a proposition. Is murder an offence which can be transferred from one person to another '{ Can the malice of the mur- derer's heart be transferred or wiped out by imputing it as an offence to his nation T If he acts with the malice of a murderer, the crime is his own, fixed upon him for ever, and no subsequent order, except of you, can ever wash the stain of murder from his hands, or transfer the guilt from his heart. Such a d9Ctrine is at once so absurd and abominable, that carelessness or ignorance can alone account for its ever having been asserted. It may be said that a civil offence is sometimes merged in a crim- inal one. But not so with crimes. The guilt of theft is not merged in that of murder, though the punishment of it may be. We can have no stronger illustration of it than what takes place between the master and his slave. Supposing that the latter com- mits an offence by the mandate of the master, who holds all but the life of the slave at his disposal. Was there ever such a doctrine held, as that the crime of the slave is merged by that of the master \ Both are alike punished, and there would be no safety for society MCLEOD S TRIAL. aof) I tliem 1 by any J before IV of na- •of war. enemy s should into the luvt even were al- revoUj- linton to es, these )e imme- lat an in- rs of his V^hen the the men anarerous ivas more •otect his Tine, and men who •urce left shing the le, but in 9f the in- e what is h can be the miir- n offence he crime , except r transfer tsurd and nt for its n a crim- t merged ces place tter com- II but the L doctrine B masler \ r society . were it otherwise, particularly if you could merge the crime of mur- der by one inaii in the criminality of another. According to Vattcl — B. 1, chnp. 6, sec. 75 — As to emissaries coming into a country to entice away the useful subjects of a sove- reign, lie has in sucii case a right to punijili them severely. Here, according to Valtcl, the punishment is cumulative, and the sovereign lias a riglit to claim redress from the persons who employed them. Vattel docs not use the sentence in the disjunctive. He says that he may punish the subjects severely, and then call on the nation which sent them for redress. Another passage in Vuttel, book 2d, chap. 6, sec. 75, says : " If the ofl'ended State (in case an individual of a foreign nation commits a crime against it) keeps the guilty in his power, he may without difficulty punish him, and oblige him to make satisfaction. If the guilty escape, and return to his own country, justice may be demanded from his sovereign." There is one more view to be taken, before I leave this part of the subject. It has been attempted to place the case of the prisoner on the footing of an ambassador. There is, however, little or no anal- ogy between this man, acting under the order of the English gov- ernment and an ambassador from that nation. They stand on dis- tinct grounds. At all tunes and amongst all nations, the character of an ambassador has been held inviolable, which arises from neces- sity and stipulation. As, but for the perfect protection thrown around ambassadors, there would be no end to national wars. Necessity requires that Ave receive an ambassador and consent to the condition that he shall personify the sovereignty of the nation he comes from, and that throws round him an inviolability which no other subject or citizen receives. He therefore stands on different ground from an agent who comes to effect an order. The ambassador's privileges arise from the ne- cessity of nations, and to avoid interminable war. But these reasons do not apply to the prisoner at all. They apply to none but an am- bassador, and much less to one who is liostis humani ge/ieris, or in other words a murderer. I speak not of the prisoner but from the record, and on the supposition that it is true. But I do not mean to speak positively, or give an opinion of the fact that he is guilty of murder ; that is a question for the jury, and I wish to leave it exclu- sively to its decision. But even ambassadors, great as are their immunities, are by the common laAV of England held subject to be indicted for the crime of murder. How little ground is there then to claim an exemption for so subordinate an agent as the prisoner 1 I will refer to authorities on the subject, which are adopted here as well as at Westminster. Coke's institute 163, speaking of Am- bassadors, says, " but if a foreign ambassador commits a crime con- tra jus gentium, or a crime against the laws of nations, he loses the privileges of an ambassador, and may be punished here as any other alien, and not sent back to his sovereign, except through courtesy." Next, 1st Hale's pleas of the CroMrn, page 99. Foster's Crown law, page 188. ^ %■ 396 GOtTLO's REPORTER. ■' Ist Blackstone's Commentaries, 245-6. Vattol, l{. l, chill). 7, sec. 100. Vattel says. Book 4. C. 6. Sec. 100. " If an ambassador commits such atrocious crimes as nflect the safety uf inaiikiiid, if lie undertaken lo assassinate or poison tlie Prince ^\ lu) has received him at his Court, he doubtless deserves to be pun- ished as a treacherous enemy, as a prisoner and as an assassin. " His character, which he has so basely stained, cannot shelter him from punishment. " Is the law of nations to protect a criminal when the safety of all I'rinces, and the welfare of mankind, call for his punishment '." Not only an ambassador, but a Sovereign himself, by the laws of England, if he comes into that country and is guilty of murder, may be tried and executed. It was so held in the celebrated trial of Mary Queen of Scots, on a consultation of the most distinguished professors of the common and the civil law, that although a sover- eign Queen, while in England, she was amenable to the laws of Eng- land ; and she was tried and executed for an ofTence alleged to have been committed against those laws. 2 Ward's Law of Nations, p. 578. These authorities and these precedents seem to me conclusive that by the common law of England and of this country, no ninmu- nity, however great, no station, however high, surrounds the party with an exemption from the liability to punishment for the crime of murder. Before concluding this argument I would make some ggestions, on the propriety of discharging this prisoner by the law officers of the State or by the interposition of the Executive power. The Executive can interfere in no way but through the pardoning power, and that is expressly restricted by our constitution to be ex- ercised only after conviction. Article 2, sec. 5. Nor is this restriction without reason. It has arisen from the ex- perience of England and from the maxims of her statesmen. It was introduced eflectually to cut ofT the executive from the power of stifling investigations and dispensing with laws. It was to remedy the mischief disclosed in the decision of the case of Sir Edward Hall, 11 Howard's State Trials, page 1165. And although in the- ory the power may exist in the prerogative of the crown of England to pardon a murderer before trial, it is a power which it is believed has never yet been exercised. 3 Institute 235, 236. It has also been suggested that a rao/Ze^ro^e^t^z should in this case be entered by the prosecuting officer. Many reasons dissuade him from such a course. The main trans- action out of which this indictment grew was a gross violation of tho laws of nations. It was an invasion and a violation of our territory. An ofTence which according, to Vattel, should be repelled with the utmost rigor, by a state which means to maintain its independent position amongst the families of nations : — Chancellor Kent declares that there is no exception to the rule, that a neutral territory cannot be lawfully invaded. Kent, p. 121. If the Caroline had given just provocation, no time had been af- .^' f^ MCLEOD S TRIAL 397 of forded or notice given to the authorities of New York to remove the offence. Agiiin : Siipposinpf the order for the destruction of the ('iiroline to be u legal nnd valid order, there is cvidoucc which goes to show that the act for which the prisoner was indicted was not recjuired t>r even contemplated by the order, and consequently cannot be justified or protected by it. After the assailants had got peaceable possession of the boat, they unnecessarily went on our shore and soarcliod the adjacent ware- houses to find more victims to satisfy their insatiable thirsting for blood. There is also evidence which goes to show that the prisoner was the very man who pursued, and wantonly and inhumanly shot Durfee upon our territory, as he was flying unarmed from the boat. If these facts should be established on investigation, the British nation would be the first to repudiate the act, and to declare that it was not done by their authority. Great Britain has taken the lead amongst modern nations, in es- tablishing the doctrine, that she will not listen to a demand for re- dress for o subsequent injury while a previous one against herself re- mains unatoned for. Witness her transactions with Spain, in 1770, with reference to the dispossession of her subjects at Nootka Sound, by the Spaniards, and subsequently, in 1778, relative to a similar dis- possession of her subjects at the Falkland Islands. These are not referred to in the spirit of reproach, but in a spirit of respect anu admiration. This principle is one of high-toned na- tional self-respect, and has acquired for her a lofty and enviable po- sition amongst the nations. In my early days, in reading the records of Roman greatness, it was not her palaces, nor her temples, nor the extent of her domi- nions, nor the power of her armies, that thrilled me, but it was the magic power of the exclamation, even amongst the remote and bar- barous nations, " I am a Roman citizen." And in modern times, the exclamation, I am an Englishman, has become almost an equal pass- port and protection throughout the world. When will the time arrive when the exclamation, I am an Ameri- can citizen, shall claim an equal respect I Never, until we learn with equal scrupulousness to protect the lives, liberties and property of the humblest citizen of our republic. Never, while we disarrange the decent folds of the drapery of our judiciary, with undignified haste, to obey the irregular and illegal demands of a foreign nation. Ho. 5. ARGUMENT OF MB. SPENCER. J« Mr. Joshua Austm Spencer commenced his argument in reply, on behalf of the prisoner, by observing, that he deemed it not improper, in view of what had been said out of doors, with regard to this case, 808 OOVLD 8 REPORTRR. nnd his npponnuicc «« counB"! for the nccuspd, to stnlo tho rpliition lie l)i)ro to it, luifi titu motion which had hoeii brought buforc the Court. It hud been said that his appointment under the Federal Govern- in(!nt should iaduec liim to relinquish the defetie(^ of Mcl.eod ; hut he would say to all such, that they little underslood, either the duties of his odiee, the merits of the ([uestiun involved in this defence, or liis own views of responsibility, if tlioy thoufrlit liiin capable of siicii conduct : for ho had yet to hMirn that n counsellor of the Stale of New York was called upon to pivc up duties ho owed to his client, because other duties, entirely compatible with the faithful disobarpe of his former ones, had devolved upon him. He should endeavor to discharge both duties accordinq; to the best of his ability. At an early stage of the proceeding, and before his appointment to oflicc, he had been retained as t'Minsel for McLeod ; as such, and not as attorney for the United States, he now appeared before this Ourt, nnd he did not believe that the duties he owed to his client in the one case, would run counter to those he owed to his coimtry in the other. All that had been done in this case by his elorpient young friend who opened this argument, and by his partner, moreover, had been done in conformity with hia views, or under his advice ; nnd if there was any odium or crime in what had been done, he was willing to bear his full share, and answer therefor before the tribunals of his country and in the face of the world. The attempt to make political capital out of this question, which he said had been made by some of the partizan prints of both politi- cal parties, deserves the reprobation of every fair mind. Its tendency is to prevent an impartial trial, if a trial is to be had ; to strengthen and deepen the prejudices which already unhappily exist on both sides of our borders ; to embarrass the negotiations pending between our own and the British Governments, and to expose them to open rupture. Without doubt, he said, this is a question as novel as it is import- ant. The opposing counsel have argued, with much zeal, that this motion to discharge has no precedent ; and he had been charged vith temerity for presuming to come into Court, to perform what his iuty in this motion required of him. Grant that the motion is with- out precedent, and the argument is briefly answered. No precedent can be found within the bounds of Christendom for the prosecution Uself. No case can be found on the records of the courts of any ?<.-ilized nation, in which an individual has been indicted, and sought to be capitally punished, for obeying his rightful sovereign. It is indeed a hard dilemma, to be subject to be executed as a traitor for disobedience, on the one side, and as a murderer for obedience on the< other. The whole argument on the other side was founded on a funda- mental error, namely : they assumed as true, what we utterly deny, that McLeod is guilty of murder ; and starting upon this assumption, they have made, it must be confessed, some little headway in proving that the Court cannot properly discharge him. But his guilt we deny ; and we have come hither to ascertain the facts, and bring together all the attendant circumstances of the case ; on which, as *. <<:■■ MCLEOD 8 TRIAL. 309 which now CKtnbliuhed, without dispute, the qupntionn of Inw nvino ; first, what hus the CfHirt power [o 4o ^ nnd Ht'condly, how ought llio Court to exer'-isf tlint power ! I(Ct it 111* be suppofsod Ihnt we hnve come here to concede the pri- Houer's guilt nnd yet to solicit Win dischurge. Tiie motion in founded on flu> asMHinptioM ilnt h(> is puiltless of" L-rinie, even if lie were one of tlic expedition which violiUed our territory and destroyed tli« property of one, and the life of another of our eitixen^. \i)r is the ol)ji'ctio?i to friiil in (i t»te court, lie conceded that the Supreiru' 'Jonrt of New York has ns niiidi iiuthority to try oIIImuI- erH ns any other Court, when the oflence lias heen committed within its jurisdiction. It is not a fpiestion of conflict between the Courts of the state, and those of the United States; for he denied that any Court, under either (Government, had a riij;ht to put McLeod on his trial ; nnd he insisted that Connrross had no power to confer the au- thority tc try him on the Courts of the Unit>n. And why I Simply because the constitution of the United States clothes the Executive nnd Legislative departments of the (rovcrnment, with the exclusive jurisdiction and cognizance of the entire oU'encc. The prosecution is without precedent, as it is without jurisdiction; nnd he trusted the Court would so regard it. Our motfon is that McLeod be discharged without a trial ; in what way is indiflerent to us. Wo care not whether by the entry of a nolle proacqui, or an order for his discharge absolutely; or that he be let to bail on his own recognizance, so that he be set free, and it be understood that no trial is ever to be had ; nnd thus the country saved from the disgrace which must attach to it if the prosecution is pursued ; for we feel quite as much interested in the honor of our country as in the safety of McLeod. Before proceeding to speak farther on the main question presented by tlie case, the counsel said it would be proper to see what power the Court had over the subject. He insisted that the Supreme Court had jurisdiction to try the crime of murder at bar, when the re- cord and the body of the prisoner, as in this case, are both brought into court. He cited 2 Rev. Stat. 2nd Ed. 330 §1, as follows : "All issues of fact which shall be joined in the Court of Chancery, or in any surrogate's court, and Avhich shall be sent to the Supreme Court for trial ; and all issues of fact joined in the Supreme Court, shall be tried at a circuit court or sittings of the Supreme Court, in the proper county, unless the Supreme Court shall, on the motion of either party, in cases of great difficulty, or which require great ex- amination, order such trial to be had at the bar of said Court." No one will deny that this is a case of such description. The Court majr therefore grant the leave mentioned in § 54- of R. S. 609. " It shall not hereafter be lawful for any district attorney to enter a nolle prosequi., upon any indictment, or in any other way to discontinue or abandon the same, without the leave of the Court having jurisdiction TO TRv THE OFFENCE CHARGED, entered on its minutes." The right to enter such nolle prosequi, previous to the enactment of the R. Statutes, was vested in the District Attorney or Attorney General, as it is now in Entrland, and in most of the States of the Union, and in the U. States. 'f. v.. 400 GOULD S REPORTER. It was then and is now the exercise of the Executive power of the Gov- ernment, influenced by considerations of sound policy and wise ex- pediency. The same reasons which would induce the law officers of the Government to interpose to prevent a trial, ought to, and will, induce this Court to advise, allow and order, the same thing to be done. This is emphatically a question of political expediency, in the l.\ighest and best sense of that much abused term. It is one involv- ing the dearest and most cherished rights of the nation ; and all the consequences which would naturally flow from its decision, may very properly be taken into the account. The note of the revisers to this 54-th section shows where the power was before its enactment, and that it might now be legally exercised. It is as follows, 3 Rev. Stat. 845 — " It is conceived that after grand juries have found bills on their oaths, such a presumption of guilt arises, that the prosecution of the offence should not rest in the discretion of any officer without the sanction of the Court. It may be abused ; and there can be no difficulty in obtaining the leave of the Court in cases where it should be granted.' Under this branch of the law, then, this Court has the power and the right to do what in its discietion shall seem to be proper. The counsel then proceeded to examine the power of the Court under the act in relation to writs of Habeas Corpus, when issued to inquire into the cause of detention, 2 R. S. 465. He insisted that the powers of the Court and the officers, charged with the duties of al- lowing this important writ, are by these enactments greatly extend- ed beyond the former law of this state, or present law of England. They authorise the court to look beyond the indictment, into all the facts of the case, and to dispose of the party " as the justice of the case may require." Without examining minutely all the important provisions of this law, the 75th section of which abrogates all the provisions of the common law in regard to this writ, except so much and such parts thereof as may be necessary to carry into full effect the provisions therein contained, it will be sufficient for the present argument to quote the 40th, 41st, and 50th sections. § 40. " The Court or officer befoic whom the party shall be brought on such writ of Habeas Corpus, shall immediately after the return thereof proceed to examine into the facts contained in such return and into the cause of the confinement or restraint of such party, whether the same shall have been upon commitment for any criminal or supposed criminal matter, or not." § 41. "If no legal cause be shown for such imprisonment or re- straint, or for the continuation thereof, such Court or officer shall dis- charge such party from custody or restraint under which he is held." § 50. " The party brought before any such court or officer on the return of any such writ of Habeas Corpus, may deny any of the mate- rial facts set forth in the return, or allege any fact to show either that his imprisonment or detention is unlawful, or that he is entitled to his discharge ; which allegation or denial shall be on oath, and thereupon such Court or officer shall proceed in a summary way, to bear such allegations and proofs as may be produced in support of I MCLEOD 3 TRIAL. 401 the Gov- wise ex- f officers and will, ng to be jy, in the le involv- ed all the may very vhere the e legally lived that sumption at rest in 'ourt. It the leave ower and er. the Court issued to d that the ties of al- ly extend- England. ito all the ce of the mportant ;es all the so much uU effect present shall be after the in such of such for any nt or re- shall dis- is held." er on the the mate- iw either s entitled oath, and Y way, to ipport of such imprisonment or detention, or against the same, and to dispose of such party as the justice of the case may require." The counsel said that it seemed to him that language could not be employed to confer broader power, and more enlarged jurisdiction, than are here given to the Court. So solemn, and so much involvin'«r. Capt. Drew and his party who made the attack on the Caroline are not responsible ; nor is Gov. Head, who gave orders to Col. McNab ; nor is Col. McNab, who di- rected the expedition — but the British Government alone, from whom reparation has been demanded by the United States Government, the injured party. The case cited proves that the municipal courts of this state have no "jurisdiction to adjudge upon the matter" — that this whole proceeding is a usurpation of authority which belongs alone to the Federal Government, but not to its judicial tribunals. If the courts of this state have no authority or jurisdiction to indict and try McLeod, then clearly they have none to detain or imprison him. There is no fact to warrant the assertion of the Attorney General that McLeod pursued and wantonly and inhumanly shot Durfee, on our own territory, as he was flying from the boat. That he was some thirty or forty feet from the water's edge when he fell, does appear ; but that a projectile from a gun fired from the small boats, or the deck of the steamboat, might have overtaken and killed him, without his being pursued or seen amid the surrounding darkness, every body knows. McLeod has on oath alleged the facts, which are fully con- firmed by all the documents and now undisputed, and which can never be denied or disproved, that show his imprisonment or deten- tion to be unlawful, and that he is entitled to his discharge. He therefore asks this Court to dispose of him " as the justice, of the * A rupee ia equal to 49 and eight.tentha oenta. a V tl ■M.7 iblemau lono on B repre- and on hese of- * From council, jreneral, I for the of fact, tiake the Hows : that of 'llo : re- and con- adjudge recourse all there- » ommand, •immally, 1 enlight- Tiunicipal d that the me amiss, tarty who |r is Gov. , who di- im whom ment, the Icourts of r"— that belongs nals. If indict and ison him. eral that le, on our Lvas some |s appear ; , or the without rery body Fully con- Ihich can lor deten- rge. He te of the MCLEOO's TRIAL. 441 case requires," in pursuance of the full authority given to it u>jr our statute. The question now is, not whether McLeod has or has not commit- ted n iioiriicide, but is he in law a iniirdcrer 1 This((iiestion1lie code of nations must answer. This Court is now sittiiij; in judgment be- tween nations. They are indeed illustrious nations, but the fo- rum is worthy of the cause and the parties — and in this august trial is presented the singular anomaly, that all parties are equally interested in the rendition of the same judgment. On it nmy be sus- pended the question of peace or war. Tlie preservation of peace is alike dear to both nations, and both were struggling therefor when this deeply to be lamented interposition of tlie municipal authorities of the state occurred, which threatens open rupture. Is it reasonable to suppose that the British nation will continue its friendly negotia- tion, with a halter about the neck of one of its subjects for obeying its orders ] or that after its public avowal by its minister, of the act com- plained of, and of its readiness to answer, it would submit to the indig- nity of having McLeod sent back for trial as a murderer 1 It seems to us not. • We arc now prepared to enter upon the discussion of another im- portant and interesting branch of the case ; one which more imme- diately concerns the institutions of our own country, their appropriate spheres of action, and their harmonious movements. The United States Government is clotiied with the exclusive power and duty of taking care of all our foreign relations. Our state government has in charge most of our internal and domestic aflairs ; each, keeping within its legitimate bounds, will avoid jars and collisions with the other. Under the constitutional exercise of the treaty-making power, redress for this public and hostile invasion of the territory of the United States, the destruction of the steamboat and the killing of our citizen, was at an early day demanded of the British Government, by the Government of the United States ; and the whole matter is still in course of treaty between them, with a view to a full and just settlement. The state of New York, therefore, cannot discreetly or lawfully interpose its municipal jurisdiction, and take cognizance of any part of this public offence against the entire American nation. It is the exercise of an authority by the state, repugnant to the con- stitution and laws of the United States, and brings the jurisdictions in collision and conflict. Its tendency is to thwart the constitutional exercise of the treaty-making power of the Federal Government, and thus involve the two nations in war. This power is vested exclu- sively in the U. States ; Constitution U. S. art. 2d, sec. 2d. " The President shall have power by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur." Art. 1, sec. 10. " No state shall enter into any treaty, alliance or confederation, or grant letters of marque and reprisal." The invasion of our territory, the destruction of the steamboat, and the killing of Durfee, were one entire transaction. The whole was one oflence against the United States. No one will contend that the state of New York could demand reparation of the British n. 112 •lOULD 8 REPORTER. and comnriented (jibbuiiH vs. Og« 1!)9 ; 1 Cranch, 1; 4 id. 209; 11 government for any portion of thin injury j nor dony that the United States govcrnniont miiy, and hutt properly made the demand of re- dreHH, n<|l only for the violatiun of our territory, but for tlie destruc- tion of property and life. The Government, therefore, ha8 taken Jurisdiction of the entire itvitter, and that must be cxchisive ; for two ecparute independent juriHdictionH cannot lawfully act at the same tune upon the Hume Hubject. In support of these prniciples the counsel cited npon the following anlliorities : 9 Wheat. Hep. 1, den ; 2 I'eter's Rep. 24-5 : H Crunch, 109 ; .'} Dallas. 103 ; 2 Dallas, 304 ; 4 id. U ; 4 Wheat. 122 ; 5 id. Wend. Rep. 311. As the Government has the right to demand, so it has a right to accept redress, and then to acknowledge itself saiislied. Suppose it had already entered into a treaty with Great Britain, by which that < fovernment had acknowledged its wrong in the whole afTair, had stipulated to pay the value of the property destroyed, and to provide for the surviving family or relatives of Durfee, and our Government had acknowledged itself satisfied. Will any one contend that a civil suit could still be maintaiued by the owner of the boat against the attacking party ? or that acrimiiuil proceeding for murder could still be had against any of those engaged in the afTair 1 Surely not. That which is equivalent to all these proceedings has already been instituted, and is now depending in the high court of nations. The complaint is made— the summons has gone forth — the party has appeared and answered, and the trial is now going on ; and no American should entertain a doubt that the issue will be just and honorable to all concerned. In a suit brought before your honors, in this highest court of original jurisdiction, it is enough to arrest all proceedings, to show that a suit for the same subject matter was before brought, and is still depending in the most petty tribunal in the state. Shall not the same rule obtain here 1 Can an inferior Court oust this of its jurisdiction; and shall the same power be denied to the high court of nations, by this tribunal now sitting in judgment upon the affairs of nations 1 This Court cannot fail to per- ceive, that the finding of this indictment, the arrest and imprison- ment of McLeod, directly conflict with the exercise of this high power by the United States Government. Is it too much to say, that they have probably already arrested the negotiation — the peaceable mode of trial between nations, and that it cannot again be resumed until this difficulty is removed ? That the denial of this motion, and the bringing McLeod to trial, will most certainly involve our coun- try in war 1 But it is said the laws of the state of New York have been violated, and that her honor and dignity must be vindicated. No other than the law of nations has been violated, and according to that code must satisfaction be sought and obtained. The honor and dignity of the state cannot be promoted by a disregard of those laws, or of her own duties toward the Federal Government. Of all the states in the Union, New York, because of her position, power and dignity, should MCI.EOD A TRIAL. 41» nf re- htruc- ontiTC !iulcnt Huine nented !rancn, 39; li ight to poHc it •h thnt ir, hiul provide irnmcnt I a civil lust the uld still cly not. dy been s. lie party and no list and honors, arrest .ter was [banal in inferior lower be litting in 1 to per- Inprison- l»is high lay, that nceable esumed [ion, and iV coun- liolated. Lor than Ide must of the Iher own in the , should he the moHt careful not to trench upon the acknowledged jiirindictiun of the General Government. But k't US examine this ciihc in view of other powers ()f the Gen- erwi Government. If it fail to obtain HatiHfactittn by treaty for this entire offence, what then ih to be