The Sun.
London, England, 1841-10-30 00:00:00

'EVENING SUN

Question raised last night, to which he supposed the
counsel would except that he might carry it up to
another tribunal. The killing of persons on the Ca-
nada shore, therefore, was not adinissabls in proof on
this triel.
Mr. Spencer—We propose to show that three per-
sons were killed on the Canada shore.
Judge Gridl.l—l overrule it.
Examination resumed—l resided in St. Catherine's
ten years. I was a political writer for a nevvspacer. I
Was a Reformer, and was out in opposition to the Go-
vernment ; but circumstances have changed. The
militia with which I was connected was raised by en-
listment, and they were stationed like a regular army.
The perms I enlisted were coloured men. I suppose
they were natives of the United States. I had this
company at Chippewa. The recruiting officers were
bat coloured men. No coloured men were allowed to
he offieers. I was commissioned by Sir F. B. Head in
person. There were Indians in the service.
The Court now took a recess for dinner. On tile
re-assembling of the Court, the cross-examination was
resumed and continued at great length.
„ Tr. Spencer—We now propose to put before the
La a:the following papers :
tlr--
sl-The action of our Minister in England.
,
t'reOnd—A communication from the British Go•
ernment to -Mr. Fox.
Thifd--lastiuctions from Mr. Forsyth to Mr. Ste-
ver!, hen shottiv after the affair of the Caroline.
~aortal-Letter of Mr. Stevenson to the British Go-
verthis, ,
L, s“,-, uemasiaina• satisfaction in this matter.
t 4!iith--Answer of Lord Palmerston, who was Secre-
-41.0f State for Foreign Affairs, to Mr. Stevenson.
Seventh—Letter
letter of Mr. Forsyth to Mr. Fox.
neventh—Letter from Mr. Fox to Mr. Forsyth, with
I rpanying documents.
,"ghtils--Letter from Mr. Fox, 12th March, to Mr.
Ninth—Letter
Secretary of State.
A inth—Letter of Mr. Webster to Mr. Fox, dated
pril 24 1841
( •
ell th!a-m Ss. rlpencer) did not know but these would be
had !night be necessary. There were others which
haI:PP to 'introduce. 'These had all now been pub-
eas-ei%)l9 were public property, which was not the
Co wuen the argument was had before the Supreme
Attorney -General asked with what intent ?
thought the gentleman could scarcely
e,erci l:!.ehend him if ho recalled his (Mr•
•!)Pening. It is with a view to present the
t in such a state before this Court upon the
fr,:erse
• this issue, that having established the
G sethet‘t this was the exercise of the public force of
th'oe.!2.l-3"ltain, 'and being acknowledged as an act of
yid Pate toren on the part of Great Britain, the inch-.
144411,is 'who acted in obedience to their orders are not
eii)l respousible. Substantially upon the prin-
t, econtained in Mr. Fox's letter to Mr. Webster in
iniitrheh last, and the acknowledgment of Mr. Webster
hod *it matter—.both Governments insisting that there
to'• a rCadY L. an invasion of their respective terri-
nes.
tttorney-General—Th at is, a state of war ?
pern ,SPeacer—Such a state of things that when they
oto.Snere the whole of the patty were acting in
Pre
•le,nee to the orders of the Government, and are
kocal individually responsible. Although the Su-
heie Court could not look into the whole case, yet
deeatillon the traverse of the indictment we are en-
tleace— I? so, and by means of this documentary ev-
-4444 snow the extent of the state of the war. We
to eelarge very considerably, to show that a very
• 4.erall!e•aaiourit of arms and munitions of war were
ler•
iertrated upon Navy Island ; to show that the ar-
weft° along the frontier had been plundered, and
eir 'unitary stares taken to Navy Island ; that the
eeiy•L 9:rns which were taken and returned in the
s Were, with the knowledge and consent of' the
.sYr of 1.1
nw
aseeri-ni saurian), aoeu to be taken out of the
;LIY the patriots, and taken to Navy Island
ad.ii;;n short, if your Honour please, there was such
tie 991 things on the frontier, that the whole fron-
°UN
f wilt • acting in subserviency to the attacking partyh
noor riY Island. Not that there were not many o-
Isie: •ie exceptions there, but the authorities of
ache 'HI, as a Sovereign State, were utterly pa-
United; end with respect to the authorities of the
that 1. states, they had no officers or troops ; but
teeth
'was a state of war. Now, Ido not say a
teedi war, but, as between the belligerents con-
e-wing, there was a state of war emphatically—
th'e all intents and purposes. It needed not
einelelaration of war by Great Britain ; it was
elnielt that the dependencies of Great Britain,
gello 'with the duty of defence, had an assail-
ar that..
their territory had been invaded that
416`eci tamp was an iatreached enemy, who pro-
-It4io„to establish a provisional Government, which.
Qrc effect'the dismemberment of the kingdom of
is 4ritain, and lead to the formation of an
te!-Peis.o6nt Government in one of her provinces.
toiAlu.o'v'ert .110 British Government was this armed
aiet Yrnployed.' We propose to go farther still,
Ni.`6. show that it was a necessary act of the
sle;o141 authorities in self defence. We propose to
reitY,lt by establishing the proposition, and in confer-
hoei the well settled rules of war, that this steam.
in !tail in the hands of the assailants, or the attack-
-1 401*, rtY ;:that it was an engine of destruction and
thin Yunce mite' potent and effectual than any other
.i„ _t in their employ. We are to look at the surround-
teareuntatanees. What was Schlosser ? Suppose
01:4iegara liver were no wider than from Navy Island
04 Canada abort. this whole army instead of being
lag o?isl would have been at Schlosser, and receiv-
ing e'l!1 and Munition's of war from the whole surround-
IdouT•ntqs and they were there accordingly, as at Navy
ties, - and opening a war upon the British dependen-
Pro,-,mt. threatening to invade the Provinces, these
lliaCC,lB would have as much right to defend
io442l4tv,,,eis.ll:BY‘thweuyrking the destruction of the assail-
if would Lave had et Navy Island ;
so, :tbis boat, passing • back and forth, was
Vtet ,to destruetion, as a course of necessary self
ee ,
/ • OW what are the rules of war in relation to
nutWailike movement that the party assailed
theih ▪ e7,l▪ t 9: w4s till- the attacking party have reached
41 mil s_-74'''''ktied'tlieir batteries on them? Not at all.
110').`'aree;.eii„,arilettaty is approaChing with a view to an-
assn+fedparty has just as much right to
,rittlitesestrtiction of that army, as after they have
4,o:iie ready to'open their batteries. If the
viral'l"nnwn' that she (the Caroline) was coining
eatoinUse tivet —if the Canadians knew that she was
8119)114,!Wti with munitions of war, to annoy them,
%e as good a right to work her destruction on
e!: C. 'are as at any time alter arriving in the Province
',re It is a great mistake to suppose that we
t 4 t WnPPly the principles of an assault and battery
Plynknarlooverneut. It is a fundamental error to ap-
-41. rot auekt doctrine. You cannot apply the doctrine
trilettringii
_to the ;all to get rid of en assailant, it
iltlets hove
commenced
doctrine that, when. open hostili-
eir4Y other means, need, they have a right by stratagem,
, cans, to get advantage and. make a de-
Neey."4,tlefore they have an opportunity of doing an
rho Canadian party were assailed, and had
414 s
' 41441 right to defend themselves as at Navy
tepee h...r the Canada shore. Does it make any diffe-
tirevy.."/41:_e,en Navy Island and Schlosser, or between
„Teti liissa_un and Chippewa ? Suppose a lodgment. had
',Anil) rl atr, Chippewa, and this steamboat hid been
Schlosser and that point to give aid, and
7t,e,e'rif,%nd succour, I would ask whether as between the
a:'''',PCople and Great Britain, that persons on the
Sttitirliair:sore would not have a right to work the de-
tYli4:11;01 that boat wherever they could find her,
lik their own wales or ourz. Would it not
NickllVer Matter of self-defence ? Where was this
'it(' eiis st,b•°‘'ement ? We are to look to the surround-
-4'4'4 !urnstances. They were divided by a rapid
but little above the mighty cataract over
Yuereiso!i4 'human being ever went alive. It was,
pity
tr, extremely perilous to navigate that stream
tliti(se"... boats at any titre, and particularly at
tistr,i3it or the year. They had no steam-boats
`'t hast;u' vessel A sham-boat came down, say
Plarposes. How was it to be guarded
ass'i In the day time, when the steam
'.'boaW what would be the use for a few
411! coyly to make an attack ; with her stream
ki.-`ft tun away from them, or she could run
setieiinf'Nn over any boats which might lie brought
',When th:e* They could not come out in the daytime,
unat was in active employment, with steam
to' ,ny prospect of success. How were they
007.;lq !;her
her ? I ask whether they were bound
tef,r: running continually to strengthen the
Agl~Ft „at' they might make a descent upon Canada ?
.‘4teilf-:„. tuna have been assailed with any hope of
,the daytime, in the vicinity of Navy Island
•'I trust not. 'Where, then, is that boat
I,e,elcoficWiltnied, if at all? Here' in Canada were
IS'At'7"'"3.3 officers—were they bound to lie
kbi° he •
.se•Y era destroyed through the instrumen-
neill.silnthoat 2—let her goon, and do nothing ?
secant., a riglit to work her destruction for their own
Y snself-defence, to prevent a descent, for
Lf^
they intended to work a revolt in Canada.
!etue,s!'new"tliat they would have many of the discon-
t;4o" salliieg e
or 0 teeir standard. it was not whether
en 2,000 were LIDOR the island. 'They bad
• ,ir,ioFt the standard upon a spot where they could
ti;PSI, 'ern was a gathering—a nucleus or rallying
(;itiaign ',which a descent was to be made upon the
Mbi Canada. They had es ected the standard,
vitl.hoe_ the discontented were ready to fly ; a revolt
jw„ already attempted at Toronto, and put down
mgt!''' It was intended again to enter
?~c refit °W was it to be done ? By collecting
gxit .materials at Navy Island, and through the
, 141 entilit„
01 a steam-boat, to make a descent
).:44411.1-Pes".4"d,.tan main. Noes I would submit to
out et :rut' whether the had not a right to put it
wtthi,isttiiii:.p?wer of this party to destroy an instrument
, calculated to promote and further the views of
teg
$e n citintry? Party. Let us see how it is in our own
htlnish 'ew was it with respect to one of the
siii.,tlol.lBl,:atituhdli in Florida, only a few years ago, per-.
tWrt„.
.vn annoyance was expected to the Untted
;tiu grey ants ? They had not opened

their batteries upon the United States. Not at all.
It was a province belonging to Spain ; and what did
our peace-loving President (Mr. Monroe) do?—
He sent the public force of the country against
them, for no ether reason than that it was
a medium of communication by which slaves
were introduced into the United States. A force was
sent with instructicns to destroy the Island. 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 'land ; it was tar from
being a case I.lse the one before us. There was not the
slightest pretence of personal danger ; no other rea-
sons were assigned than frauds upon the revenue and
the introducing of slaves. Suppose the possessors of
the island hail not voluntarily surrendered, and our ba►-
teries had been opened,aed 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
of any other authority, in which way they would he
murderers. This was a case in our own ccuntry, and
the President put it upcn the acknowledged law of na-
tions. I allude to the occupation of Ame!ia Island. It
was earlier than that of St. Marks. We have the or-
ders here. It was not for the suppression of piracy,
but to prevent the introduction of slaves, and frauds upon
the commerce. 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
individual irresponsibility ? Never was a more heterodox
doctrine put forth than that there should be a declara-
tion of war, to work individual irresponsibility. When
General Jackson had commaaded,he bad express orders
not to enter any of the fortifications of Spain in Florida.
The orders were given expressly, but what did he do?
He deemed that the United States required it, and
that the Spanish authorities were too feeble to con-
trol the Indians. Ile marched int') Florida and took
the forts of Florida. Was it ever dreamed of, or
thought of, that General Jackson and his army were
murderers—they killed men there. They took Am-
brista and Arbuthnot and tried them and executed them.
It cannot be that an army acting by order of the Go-
vernment, whether right or wrong, are murderers.
It is not so. It is revolting to every man. Compare
this case with the one in question. It is evident that
the United States and England are both desirous of
maintaining peace. It was not intended to interrupt
the friendly relations of the countries. It was intended
for nothing more nor less than to work the destruction
of an instrument of annoyance, which was threatening
immediate destruction to themselves. Because they
could not reach it in the day time, they must seek an
opportunity when they could reach it, and at such point
as they could find most practicable in such extremities,
and with such means as they were able to employ, and
in the employment of such means she was destroyed.
I will go further, and say that it is not a question at all
whether this power and authority were discreetly and
properly exercised—that is not the question. The
British Government may have been in the wrong
throughout, and our Government may demand repara-
tion or satisfaction, or find just cause of war on our
part. It does not at all involve M`Leod, or any other
ono charged with being of that party. There is a wide
distinction between a Government being wrong and
the soldier l eing wrong, arid is it not intolerable and
revolting that individuals should be thus held responsi-
ble ? Let us change tables, and see what would be
thought by our Government and country if the Cana-
dians bad seized upon Grand Island, whilst we were at
peace with Great Britain, and fortified it. Why,
there is no war—Gre it 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 ? I ask if the Attorney-General
would deny that authority ? And could they not do it
without waiting to have the British Government de-
clare war against the United States ? Would not they
have a perfect right to do so? I apprehend they would
have. And if a company, or re giment, 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, notwithstanding
they acted under the authority of the Government, and
in obedience to the commands of their officers, It is a
strange doctrine that you have got to work up a war in
all its forms before individual irresponsibility can be re-
cognised. Thus far I have presented this case as one
when the proceedings, so far as respects M'Leod,
would be entirely justifiable, because of the defence of
the inhabitants. But I have yet another view to sub-
mit ; it is that the public 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 of it ; and having taken
cognizance of the matter,which is within the jurisdiction
of the United States, it is not in common with any in-
ferior jurisdiction. What is the duty of the Execu-
tive when an outrage of this kind has been com-
mitted ? It is to ascertain the facts, and when
they are ascertained, to decide upon the matter,
and this decision is decisive and conclu.ive. That
must he the law, or the Government of the United
States is a rope of sand. They have this subject nit this
moment in a state of treaty—in a state of negotiation
between the two Governments, anti will it be denied
that the United States have as much right to demand
satisfaction for the killing of Durfee as for the desi ruc-
tion of the steam-boat Caroline. Have they not a
right to demand satisfaction for the invasion ? Let us
witness the case where the Leopard made an unjusti-
fiable attack upon the Chesapeake. There was no
declaration of war between Great Britain and the
United States. They were making inroads and com-
mitting depredations. At that time the Commander of
the Leopard insisted on taking and carrying measures
so far as to take hands from on board the Chesapeake,
claiming them as British subjects. No war had
been declared, but was the commander held as a
murderer ? So far from it, that you have only to
look at the facts, to see that the British Govern-
ment made provision for the support of the fami-
lies of those 'individuals who had been destroyed.
It is in conformity to the usage of nations.
When such public force is exerted, it becomes a
subject of public concern, and is a subject of treaty
and as such is within the jurisdiction of the executive
department of the Government. They had a right to
take cognizance of it, and having so done, they have ex-
clusive jurisdiction, and others cannot interfere. It is
in this double respect that we offer this evidence—it
will entitle the defendant to a verdict of not guilty, be.
cause we are now traversing the indictment ; and if it
cannot properly be taken cognizance of there, he will
be acquitted for that reason.
The Attorney-General rose to reply, but
Judge Gridley said—Mr. Attorney-General, I think
I can relieve you. I have considered this question so
far as I have any right to d. chic it. This indictment
has been brought ihto the Supreme Court, and it has
been sent down here to be tried by the Circuit Judge,
like any other issue. While pending there a mo-
tion was made for the discharge of the pri-
soner ; in the first place, on the ground that the
Court had powers to look behind the indictment. The
Court considered that question, and came to the con-
clusion that they had no such right on habeas corpus,
and the motion was denied. But if they had the
right, they decided that this was nbt such a crew as
woule induce them to exercise it, and that the motion
should be denied for wart of right, and on account of
the absence of any thing like war, and for the reason that
there wes nothing in the pending negotiations between
our Government and Great Britain which took away
the jurisdiction of New York for an cffence against its
laws. This opinion has been arrived at by the
Judges of the Supreme Court, on all these questions
being deliberately argued before them, and which,
although written mainly by one, was the united expres-
sion of the views of the whole Court—after the most
solemn and deliberate consideration—on such an
opinion. I de- not feel authorised to entertain, or
express, if I entertained, a different opinion. Their
opinion in th's matter is law with me, and briefly
stated, is this :—A band of men—Canadian refugees
and citizens volunteering with them, took posses-
sion of Navy Island—it was a hostile force for the in-
vading of Canada. Navy Island was a portion of Ca-
nada, and I have no doubt that the Canadian authori-
ties had a right to repel the invasion, suppress the in-
surrection, and use all means which nations may use for
the suppression of 'that invasion and insurrection. But
while that was true, our citizens had the right, so far as
regards their obligations to their own Government, to
expatriate themselves, and join the insurgents, being
subject to the same punishment ; so, too, any citi-
zens of our Government had a right to carry ammuni-
tion and provisions to either of the two belligerent
parties, and to Navy Island, subject, however, to the
penalty of forfeiture in the event that they were cap-
tured. If this boat was a portion of the armament
of Navy Island► at Navy Island, or on the high seas,
it would be subject to capture on the part of Great
Britain. But with regard to the United States,
Great Britain was at peace, and Great Britain, or any
subject of her's, had no right to molest it ; and I can
conceive no more right in the British Government
sending an armed band to make an attack on that boat
and destroy it, for the fear that site :might become
great nuisance to them, than that they have a right to
send armed men to Buffalo to destroy the arsenal that
contained the munitions of war, and kill the Mayor for
fear he would send the arms there to. be used against
them. These are the doctrines of the Supreme Court,
not an Opinion, but an authoritative decision which is
binding on me ; and I have no discretion to set it aside.
1 am administering law in the Circuit Court, subject
to the decision of that very tribunal which has settled
all these questions, and after a more full argument than
we have had here. I therefore feel bound to reject the
proposition to offer these matters in evidence, on the
brief grounds I. have stated. •
The Attorney-General reminded the Court of the de-
cision of Chief Justice Spencer, in a we 18th Johnson,

to show that this decision of the Court would be found
on examination not to be a novelty.
Mr. Bradley said t 1 ere we s one point ;n this case
which had not been p-esensed to the Supr. Me Count.
There was a class of cases in which even neutral terri-
tory may be entered for a hostile purpose—nominally
neutral, not really so. Teat class of cases is referred
to in the celebrated letter of Mr. Webster to Mr. Fox,
in the last paragraph but one, which states what will be
necessary for the British Government to show, in order
to justify the attack on the Caroline. Now, we suppose
that if the defendant can comply, and show such facts
as would exonerate his country from the act that be
would be discharged. It can be shown that
_it was a
nscessary act of war.
Judge Gridley—Equivalent to lawful war.
Mr. Bradley—Not equivalent to lawful war, but a
ease where even private individuals may undertake, and,
as necessary to repel impending danger, mty act of
their own mind and will ; under the necessity of seV-
defence, instant and overwhelming, leaving no choice
of means ; then he would be exonerated. We offer to
comply with this case. That point was not raised in '
the Supreme Court.
Judge Gridley did not think it appeared a case of
that description. On an indictment for murder, who
ever heard that it might be shown that in self-defence
a man may cross tile Niagara and destroy his adversary
for fear he might destroy Lim. I think it would not
approach a case of sell-defence. That will not justify
the murder of Murree.
Mr. Bradley said the point which they proposed to
establish was, that the Navy Islanders were the striking
party, and were within striking reach.
Judge Gridley—Suppose the Navy Islanders, if they
could get a forty-two pounder, could do immense injury
to those on the opposite shore, and an individual has
possession of that ; and the Canadians for fear that the
Navy Islanders will obtain that forty-two pounder, go
and find a body of men who make this instrument and
kill its owner, that would be justified by this doctrine.
The illustration shows that the doctrine is unsound.
The defence is on the other ground.
Mr. Spencer—And in an application to the Court of
last resort I hope no obstacle will be thrown in the way.
Judge Gridley—You shall have every faciky from me.
The interrogatories and answers were then read and
contested severally by the Attorney-General.
At six o'clock the Court took a recess for an hour.
The Court re-assembled at seven o'clock, and the
answers of Cal. M'Nab to the cross-interrogatories were
proceeded with.
We have given his testimony in a more intelligible
shape, and in a less verbose form, but with all neces-
sary fullness and accuracy. During the reading, the
Attorney-General objected to various portions, so as to
bring the testimony within the rule laid down, and to
make it applicable solely to the indictment for the mur-
der of Durfee. .The various points were warmly con-
tested by Counsel on both sides.

FIFTH DAY,

goner as a crime, to'have been an act of duty—to a na-
tion which stands ready to vindicate the faith plighted
by all Governments to their subjects for their protec-
tion—to this nation it is closed ; and, I confess to you,
that when I sat down to the trial of this cause, I did it
with a sinking heart—knowing the clamour which has
pervaded the country—knowing the anticipated triumph
which has been. been pealed through the land on the part
of the prosecution. I did it with a sinking heart, lest
there should be an adverse verdict ; but, I confess to
you, that that hour has some time since passed,
and those feelings have altogether subsided.
It has already been said in your presence, by the
Counsel on the part of the prosecution, and of the
Court, that the simple question for you to try is the
fact of the presence of the prisoner at Schlos-
ser, on the night of the burning of the Caroline,
aiding and abetting in that enterprise. This is
the only testimony that you are to regard—
all other must be considered as only collateral to this
main point—no further to be considered than so far
as it tends to throw light upon this main and princi-
pal question. Now, it is a principle of law with
which you are doubtless ad familiar, that in criminal
cases—even in the slightest and most unimpor-
tant, when the punishment following conviction
would be a trifling confinement in the county gail,
every doubt as to the guilt of the accused should be
taken into the account for his benefit. It is not enough
that there be a preponderance against the prisoner.
It must be full—it must be conclusive—it must ex-
clude all doubt—it must annihilate every doubt of
guilt. Now let us look at the circumstances of this
case ; let us sec how near the prosecution has come
to this clearness of proof. In the first place the
prisoner is guarded by the principle of law, that every
man is presumed to be innocent until he is proved to
be guilty. In the next place, the testimony of those
men who were engaged in the expedition—testimony
taken in the only way in which evidence from a
foreign country can be obtained, by commission, this
testimony goes to show that ha was not present.
Gentlemen, it is well known to you, indeed it has been
stated in almost every sentence of the testimony in the
progress of this case, tnat it had its origin in a natiortal
question. Throughout both the Canada=, discontent,
deep-seated, had prevailed. Whether that is right or
wrong, it is not for us to determine. Resort was had to
arms, and with no success to the insurgents ; after the
failure of the movement on Toronto, peace was restored
throughout both provinces ; no hostile force continued
there; the insurgents—a few—fled to the United States;
and after about a fortnight, again returned to Navy
Island. The object of this movement was to create hos-
tile war ; the dangers and the horrors of war can be
imagined by you from some portion of the testimony
which has been given ; how furious and bloody war
must always be you can imagine from the transaction
at Schlosser, and but faintly imagine ; for in the accu-
mulated atrocities of a whole campaign, to what part
would this little transaction, horrid as it seems in the
detail, have been equal ? One man was killed ; several
wounded slightly, and one severely. But what would
have been a whole campaign in Canada, amid the snows
and frosts of a Canadian Winter ; a brutal soldiery
around, and a peasantry likely to become more brutal
still. Two hundred and fifty thousand soldiers—giving
the insurgents half of the province ; what could they do
against the other half, and all Britain beside ? At
the first relenting of spring, if indeed they had been
able to have resisted through the winter, it would
all have vanished, as the tempest vanishes, leaving the
sky clear, but desolation all around. Now, gentlemen,
evidently to kindle sect.' a war—so mad in its origin—
so hopeless in its result, Navy Island was seized by
American citizens, headed by one American chief. A
strange spectacle this for a land of law, bound by treaties
itself had made! Why this effort to create a war,
which all had alike an interest to share ? 'like
answer, while it shows the interests which have
fomented in this case against the prisoner,
will carry us another step in its progress.
It was said by the Court, before you were empannelled
that you had nothing to do with consequences. In one
point of view, it is true, and in another erroneous. If
the prisoner be proved guilty by testimony which ex-
cludes doubt, which loaves no chance of innocence,
coming from witnesses who have had fair opportunity
to see, and clear and unclouded memories to retain the
facts they depose ; and of unimpeached veracity ; it'
his guilt be proved by such testimony, then it is ti ue
that you have nothing to do with the consequences
of conviction ; it is your duty, whatever the con-
sequence is, to find a verdict of " guilty ;" and
though from it war should come—though our com-
merce should be swept from the ocean, and our land
invaded—your duty is a plain one. If you should suffer
yourselves to falter you would commit a crime for which
li', whose justice you are now administering, would at
a future day call you to account. But there is another
view, in which you cannot, without the same responsi-
bility. overlook the consequences. If .war is to come
from your verdict, then it is your duty to look and see
wbether the witnesses who came one after another, on
the stand, did not come forward by the desire to pro-
dues this consequence ; it is your duty to look abroad
and see whether there are not influences existing through
the land which May prompt witnesses to stand and tes-
tify to that which they do not only not know to be true,
but do Isticaor to be false. These same men, by whom
Navy Island was occupied, are still in our midst ; if
war was then the object to be attained, is it not so
still ? If Van Rensselaer was then a valuable acquisi-
tion to lead their forces, would not the Commander-
in-Chief of a main army he still more valuable ? The
motive exists still strange; now than then. It is now
reduced ahnost to a certainty that the conviction
and txecueee of .be prisoner would lead to a war ; aud
if witnesses who have ascended the stand have had in-
tercourse with those who have violated our neutrality,
then it becomes a serious question to you, whether the
credit of these witnesses is not impeached—whether
they did not testily under the influence of a motive
which causes them to swerve from the truth.
I leave the cause-1 merely designed to run over the
prominent features, and then leave the cause to my
associate. I told you at the opening, that I had no
anxiety as to the result. There is no longer a doubt as
to the issue of this trial ; deep anxiety and alarm have
been felt ; there is now no danger of war, or that our
foreign relations will be disturbed. 1 anticipate a reso-
lute acquittal, which shall satisfy not only the crowds
assembled around, not only public justice, but your own
conse'ences, in that hour to which the AttorneyoGene-
ral alluded in his opening, that shall be not only for a
pleasure through life, but gratification in the last hour
of terrible account.
Mr. Spencer spoke as follows :—May it please your
Honours, Gentlemen of the Jury—lt is the first time in
my life that I have ever risen, having in my charge an
important trial or defence, when I felt that the remain-
ing duty of Counsel, after the evidence was disclosed,
was entirely a work of supererogation ; and the consci-
ousness that it is so, really oppresses me. It seems to
enervate the whole system that circumstances should
thus attend me, and that I should be obliged to det Ain a
jury whose patience has been largely tried, by comment-
ing on evidence, when my judgment satisfies me
that that evidence has already been carefully con-
sidered by the jury, and that their judgment is now
ripe to be pronounced. But in all this I relay be
mistaken ; it is very possible that my convictions
of the evidence of 11‘Leod are stronger than are yours,
or those of any other person who has not been so inti•
mately acquainted with the whole interests of this case
as I have been. It is because I have no right to remit
any exertion which shall lead to the development of
truth and the innocence of IlPLeod, and the securing
of your: verdict of acquittal, that I will even now at-
tempt to draw further on your patience, and submit
such considerations as deserve to be reflected on by you ;
such as the prisoner has a right to demand, and such as
the State and our common country have reason to ex-
pect. As I took occasion, Gentlemen, to remark in the
opening of the defence, this case is one, as the evidence
has now disclosed it to be, of greater importance than
almost any other ever brought before an American bar
for trial. Cases involving the life of an individual have
an all-sufficient interest to awaken the deepest emotions
of the human heart ; but when we consider that this
is a case involving other interests far beyond the life
and death of iNPLeod, no man with an American heart
beating in his bosom can fail to be alive to every con-
sideration that shall lead him to a right conclusion ; and
equally as jurors and as citizens I invoke your attention
to such considerations as I shall address to you.
Gentlemen of the Jury, I hope you will be spared all
your lives from such cxeitement as has been manifested
here. You may have observed, in the progress of this
trial, in the examination of witnesses, that there was a
want of kindness and charity, and you may think
there may have been a rigour and a rigidity to which,
perhaps, witnesses should not be subjected who ap-
pear here in obedience to the mandate of the law.
I believe that the case of the prosecution is untrue ;
and I am sorry to say that I firmly believe a large
portion of it is not only untrue, which implies
mistake and misapprehension, but I hope I shall
not be suspected of a want of charity when I say
that a large portion of it is evidently false, and
desire that word to be understood in its legiti-
mate acceptation. I believe it is sought to be up-
held by the rankest perjury that was ever brought into
a Court of Justice since the sun shone en Christendom.
This case, Gentler ten, involves not only the life of a
fellow-being, but the highest interests of two great na-
tions, in the two hemispheres, which hold the first rank
in all Christendom, speak one common language, one
common people, one kith and kin ; and the object of
this prosecution is to involve these two nations in a
bloody war. Believing this—and I doubt the power of
may learned adversaries, able as they are, to convinces me
that such is not the character of the prosecution, and
that such are not the reasons and the motives for
its being brought, I confess frankly, I felt little
charity for those who sought to take the life
of l‘l'Leod. Such must be my apology for the man-
ner in which I nay . have conducted this de-
fence. I took occasion, Gentlemen of the Jury, in
opening this defence, to state to you that it would
be twofold—the one founded entirely on the broad
ground that the killing of Durfee was not murder

in any one—that by the law of nations the exertion
of the public force of a country—those acting
in obedience to the command of a superior in
the d;scharge of a duty which the circumstances
of the case seem to devolve upan them—were not sub.
jrct to arraignment and trial for murder, though it was
hostile in its nature and calculated to destroy the life of
a fellow-being. That defence, Gentlemen of the Jury,
has, by the direction of the Learned Judge who presides
over our deliberations, been excluded from our view.
Of that judgment it becomes not me to complain ; I
feel no desire to complain in the progress of this trial.
What, then, Gentlemen of the Jury, remaias? Are we
without defence? As far as our Supreme Court has
decided, though the Canadian territory had been in-
vaded by an hostile army which had established a
Provisional Government, and issued a proclamation in-
viting our subjects and citizens to come to their stan-
dard, and (though they were bound as American citi-
zens by their obligations to the law of that country and
of our own, to respect the peace of a neutral nation) to
rally and come to their aid aid comfort—though our
arsenals were .rifled, and armies were collected, and bat-
teries were estebli had, and cannonading had com-
menced on the Canada main land, yet if the subjects
of Canada thought fit to exert their power to over-
throw this enemy, and should in the excicise of that
power put their feet on American soil, they Were tree-
passing, and if they dared to take the life of an Ame-
rican citizen, they were murderers. Although, I
say, the Supreme Court of the -State of New York
have thus decided, have they swept from our posses.
sion every defence which can be relied upon for the safe
deliverance of 111‘Leod from the bonds which he now
endures ? No, Gentlemen, there is yet another remain-
ing. I have no belief—l have no confidence in the
doctrine which the Supreme Court has promulgated
in this case. I shall repeat it—l shall abide by it—
and I shall abide by the decision of his Honour here ;
but, if needs be, have taken the precaution to pro-
vide, to review the decision of his Honour here, and to
secure the right which will enable me to review the de-
cision of the Supreme Court elsewhere, so that in the
event of M‘Leod's conviction, if that decision should
not be in accordance with the law of the land, it may
be reversed, and that established which 1 believe to be
the law of the land—namely, that where there was such
a war carrying on, the British Government m:glit
properly exert its power to put down that war, and
that those who acted in obedience to that Government,
in the discharge of their duty as faithful subjects and
citizens, are not murderers. I desire it to be under-
stood here, in this Court-house, and before this au-
dience, as well as to this nation, that I protest against
that doctrine being promulgated as the law of the land.
It is not the doctrine of the law of nations, and I, for
one, will never submit to it as long as it is necessary
to contend against it, for the safety of Al'lseod. On
this trial I submit it—l will abide by it—l will submit,
so far as this trial is concerned, without murmuring,
and I only now refer to that doctrine of the Supreme
Court of the State, to express my regret that that
doctrine should be sent forth as the doctrine of the law
of nations, in their movements as belligerents in affairs
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 well arise in a case of murder as in any other.
The true question for your determination is, where
was the orisoner at the bar on the night of the ?9th
of December, 1837. lf, as it has been proved on the
part of the prosecution, he was at Chippewa, it
does not follow from thence that he went on board
the boats—that he was one of those who, at dead
hour of midnight, set fire to the steam-boat Caro-
line—that it was his hand which dealt the deadly
blow which deprived Durfee of life. You are to
inquire where, in reality, was M'Leod at that
time ? Had he the honour or the disgrace to be en-
gaged in that expedition ? If he had, then, under
the law, as applied to this case, I confess it will be your
duty to find a verdict of guilty. When I make this
confession, I must be understood as ref,rring to the law
as it has been laid down and established by one of the
higher tribunals of this State with reference to this' case,
but not as I believe it, the firm and unshaken principles
of the law of nation;. This case, gentlemen, presented
some features of great peculiarity, to which allusion
should be made, and which you should fully understand
and properly appreciate. It is that from the beginning,
as I have before had occasion to mention, long before
the trial commenced, nay, nearly a year ego, the main
features of cur defence, with nearly every attending cir-
cumstance, were fully and perfectly known to the counsel
for the prosecution ; not indeed to the Learned Gentle-
man who now has it in charge, but to the Counsel for
the people. And further, gentlemen, long since—a
month ago, or nearly a month ago, our defence as
far as respects the evidence which we have produced
from witnesses in Canada—so far as respects our evi-
eene3 taken by comm'ssion, was fully awl perfectly
known. Although generally speaking such evidence
should be known to ourselves only, in cases of a high
criminal nature especially, yet have we been driven t
exhibit to the world as well as to the Counsel for Vie
prosecution, long ago, almost every iverd of the evi-
dence, covering:cvery rniciute l'nearnent of our defence
as it has been spread oat before you. The deposi-
tione were in the hands of our learned ale ersaries
days and days before their witnesses were pro-
duced upon the stand here to be sworn ; and
every word of these depositions had been read
by their counsel. I am well convinced of this fact.
This trial has not gone forward without having cars
listening ; and 1 have reason to believe that there have
been what may be called committee rooms, where those
witnesses have had read to them from time to time the
evidence which had been given in the case, and where
they have had their minds prepared for the part which
they themselves were about to take in the case. And
you may be assured there was not one of those witnesses
who had not a full knnwledge of the depositions. Ido
not say, that the counsel for the prosecution have
instructed the witnesses in this way, but do you
suppose th st 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
County of Oneida, and the Learned Counsel from
Buffalo, who was himself one of the committee of vigi-
lance ; do you suppose that these are the only persons
engaged in upholding th's prosecution ? I desire that
such a misconception should be removed from your
minds. 'These four gentlemen a-e but the corporal's
guard of the army which spreads itself from one end of
the State to the other. There arc generals, colo-
nels, subalterns, and privates, employed in this cru
sade. The post-office department has been made
subservient to their purposes ; secret communi-
cations have been successfully kept up, and no
effart has been left unexerted which was calculated
to secure the conviction of M4Leed—and for what ?
Net, certainly, that they desire the blood of an in-
nocent man should be shed on the scaffold, but that
the two countries should be involved in war, and
that these persons may, by that means, be enabled
again to enter Canada, though not as the vanguard,
yet as the rear-guard of an American army, for
the purpose of wresting it from British dominion.
So strong was the evidence before Judge Ballwin,
showing that M'Leod had no participation in the affair,
that he determined to release him on his recognizance
for his appearance. But as it happens in that dis-
trict of the country, an appeal lies from a judicial
officer to a popular assembly. But I thank God
that here no midnight mob, assembled to the noise
of martial music, has the power to exert an influ-
ence over our deliberations. You will have it in
your power to open the prison doors, and set your cap-
tive free ; if in your deliberate judgments you deter-
mine.. that justice requires that you should do so, v%:ith ,
out fear of popular tumult. When you hare gc_n t
your verdict, after duo deliberation, you will not find
necessary to apologise for the judgment which you
hare formed. No, gentlemen, Utica. Oneida, America
itself, I hope, will be spared another exhibition so dis-
graceful to our law—so subversive of our liberties.
1 shall have occasion yet to show up the blackest per-
jury that was every brought to bear upon a trial. In-
dulge me, Gentlemen, in another remark, before I enter
upon the tedious and thankless duty of examining the
testimony of the witnesses one by one. It is, Gentle-
men, and it is not the first time that the thought has
been suggested to you—it is that either one side or the
other must be destitute of truth. That it is impossible
for human ingenuity to reconcile the two sides of this
case so as to furnish an apology for the witnesses on
both sides. 'fo that Being alone who gave us existence
is attributable the power of Übiquity. It is impossible
for a human being, tabernacled in clay, to be in two
places at once and the same instant of time. Alexander
M'Leod was not in Stamford at all as it has been
proved be was, if he had the slightest participa-
in the attack upon the Caroline and the murder
of Durfee. Leod was not at Schlosser if
he was at Stamford, as we maintain ho was.
It follows, therefore, Gentlemen of the Jury,
that painful as [must be the duty, you cannot
escape its discharge ; you must find that either the
one side or the other of the evidence which has been
adduced before you is utterly false—a sheer fabrication,
got up to answer the purposes of the present trial. Now,
gentlemen, allow 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 motives strong as death, viz. their
darling object to involve this country in a war with
Great Britain. I charge it upon them unhesitatingly.
All their witnesses are of this character and descrip-
tion—if there are any exceptions they do not occur to
me at this moment. Members of those secret
lodges, bound by frightful oath to act in concert for
the accomplishment of that which they dare not disclose
for the laws.ose
for fear of being subjected to puishment by
bTyhetbyecier r
fruitstai ly
;caannndowt
hcoamt
aprlaeinthoefsuesfrifuiwtse?ju
them
; dlgnet ofh e t
place, the contribution of money, which is t‘ht,etsihenecwolol-f
war, to carry on their unholy purposes
tribution of personal services,
of material
aiment, munitions of war; every spectes
cold and hunger ; also, the contribution°netenflneeg danger and
.of food and
men who compose
this h
necessaryas to
beenca drryoonn
ew abryagainste our neighbours

these secret societies. Can you desire to have
stronger evidence than the very secrecy of their
proceedings, under the sanction of an unholy oath ?
These men take the witness stand, and on their caths
declare that they dare not confess the nature of their
society's oaths for fear it should expose them to a cri-
minal prosecution ; and yet they expect to obtain cre-
dence from an intelligent Jury ! The witness Willson,
who kept the ferry, not over the River Styx, but over
the Niagara, and sailed not Charon's brat, 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, that he might destroy the monument
of Sir Isaac Brook ; that he might set fire to the steam-
boats and destroy the lives of innocent persons. But
alas! that celebrated C rptain-General has been lost
to them, and they here bitterly felt the sting of
their mortification. These are the witnesses—
these are ti.e constituent parts of thet gallant and
virtuous comleira'ion of ht roes, who come forward
to teke away the life d an innocent man, thinking to
cl tiro belief from an intelliget t. Jury. I shall pass oser
at a glance, all that which has not an immediate and
direct bearing upon the point at issue. They all show
a desire to prevaricate and cenceal the truth. Take for
example the first witness, Wells. Did he freely and
franle'y give you tie honest truth, the whole truth, and
nothing but the truth? He stands utterly impeached and
convicted of dircet perjury.
The Court assembled at two o'clack, after the recess
for dinner, and the number of ladies present was consi-
derably ine•eased,
Mr. Spencer resumed his argument, and his exami-
nation of the evidence for the prosecution, which he
said he verily believed was a wicked combination of
wicked men to promote a hese and wicked purpose. He
believed it was only necessary for those men to put forth
their order and it would be obeyed, and it was his so-
lemn conviction that that dangerous combination along
the frontiers of which lie had spoken, could furnish des-
perate men for any purpose, lie it even to hang I\l‘Lood.
But if the British and American Goaernments would
only see tin se things in their proper light, there would be
no necessity to go to war, for tint combination consisted
butof the scum cf the earth. The Learned Gentleman
minutely examined the evidence for the prosecution,
and the character of those who gave it ; and he expressed
his surprise that the law officer of the Government who
conducted the prosecution had not abandoned the
case without asking a conviction on such testimony.
The Attorney General at nine o'clock commenced
his clos.ng address, r.nd spoke as follows :
Gentlemen of the Jury Worn down with the
labours of this case, I an calved upon at this late hour
to bear up, not against the iatrinsic merits of the
case, but against the powerful eloquence and the
great - personal influence of the counsel for the
prisoner—to bear up this case under my own fatigue,
and exhausted as you are by this trial, which
has been of so great extent, against false isaues,
and extraneous issues, which the ingenuity of counsel
has too successfully succeeded in placing before you.
During the progress of this case, and the summing up,
counsel for the prisoner have complained loudly of the
manner in which the prosecution has been conducted,
as if the:e had been something harsh and improper
on the part of those whose duty it was to conduct it
before you. We have been accused of concealing
from him the names of the witnesses. Gentlemen, Ido
not feel that that charge is properly brought against
us. For one, 1 can say, it is not properly brought
against me. As to harshness in the case, I owe it to
the position which I hold to say, from the outset—from
the first moment that the prism er at the bar was ar-
rested at Lewiston, to the present moment in which Pam
addressing you, by the direction of the Executive o'
your Sate, as well as those in whose more immediate
hands the prosecution was, every attention given to
the prisoner, and there has net been left the shadow
of a shade of ground for the enemies of our State
here or elsewhere, to charge us with having tarnished
the mune of the State of New York in the adminis-
tretion of justice to tile prisoner at the bar. Gen-
tlemen of the Jury, I believe it not. Ido not believe
it. So far as my knowledge extends I can say it is not
so. If any such thing has been done it has been done
without my knowledge. Sornethine has been said here
of the mob at Lockport es connecting itself with
the merits of this C.l C. 1 would nut lave men-
Cenci' this, but that it has been trumpeted forth
that in this State we arc so wild and regardless of
law that we are ready to asassinate a judge on the
bench. I stand not here to apologize for any ap-
pearance of vich nee at Lockport, but the circum-
stances were not as they have been exaggerated
here this day, and as they have been represented in
the public prints both here and in Europe. Get:-
tlearearr—the prhsoner was, by a Judg,, let to bail
without a precedent ; and the people, who were
somewhat indignant at the outrage which had
been committed at their very thresholds, were some-
what excited. They did net do yielence to any one ;
they insisted that those who had become bound should
cancel their bond, and that was the whole. Now,
G.2ntl 'men, what progress have we mode in this case ?
May I say, G..nil2men, that we have provcd.that the
Caroline was destroyed, aed that D srfec was murdered.
I confess, when the Counsel for the prisoner attacked
so violently the testimony of Mr. Wells—the
first witness who was caked to prove the de-
struction of the Caroline-1 began to be alarmed
lest we bad riot proved that the Caroline was
destroyed, and that Durfee was murdered. Gen-
tlemen, I do not think perjury is quite so common
as the counsel seem to suppose ; but, Gentlemen, it is
a common thing to swear to a little more than the
witnesses know. MeNah, in his testimony, not that
be intended delibarately to perjure himself, but
he was willing to swear to more than be knew.
Gentleman, the life of a man may he taken
in lawful self defence, or it may have been
taken by some individual in the protection of
his own life. Yes, Gentlemen, it might be taken
by some one in the patriotic defence of his country. On
that point I will go as far as the Counsel for the pri-
soner, and I wou'd not restrict it to one individual
alone. But does the testimony here make out a lawful
taking away of life? Gentlemen, it does not approach
it, though an attempt was made to put. forward testi-
mony in the nature of a defence. The Learned Gent.
here read an extract from the diplomatic correspondence
which has taken place between the British Minister and
our Secretary of St ate, in which oar Secretary lays
down the position that the airsir of the Caroline was
unjustifiable even in a national point of view, unless
there was strong necessity for instant stir defence,
leaving no choice of means nor moment of deliberation,
a necessity which the Government of the United
States could not believe to have existed. The
Learned Gentleman resumed :—Gentlemen, this
has been extolled as an act entitled to be ranked
among the glorious achievements of men. Yoe well
recollect the description of this boot ; it was a ferry
boat. It was so small that a person could step
out of a row bo it on to her clack. Was it then so ter-
rible an engine, as would warrant such extraordinary
services? The persons on Navy Island might have been
s'arved out ; bat this fact, though it may have been a
sagacious one, was one of barbarian cruelty—lt was one
which nothing but the rigour of war would justify. H
our citizens were on Navy Island, they were no longer
our
citizens, and if Cies h.d been butchered or hung,
there could be no appeal to our law-s ; but when
they come within our lines, God grant that we may
ble can always
add nothing
naobtlieli
nagodto woirellizntbgleo
to protect our citizens.
pinion of our Supreme
Court, which I read to you in nay opening. I can only
say, that Great Britain herself has decided that ques-
tion, when she refused to our Government to deliver up
Greeley, when he wee taken at Madawaska for taking
the census, on what may be alleged to be British
ground. \\Then he was arrested for that act, and
thrown into prison, and our Government complained
of the impropriety of the act, what was the
reply of the British Government ? " We can-
not interfere—our laws must be respected." That
answer, so far as the law went, was conclusive. But so
far as this was an act of war, that question bad also
been disposed of by Great Bri'ain. When she seized
our citizens taken on her shores, she tried them in her
civil Courts, and sire condemned some to be executed
and some to be banished. Yes, Gentlemen, ourclti-
zens have been thus treated, and the wises and children
and brothers of those men have kneeled to Govern-
menttircsome.
atWashington, again and again,
imploring that
thing may be done to procure their
releaset from
w e could
fo-
reign bondage ; but they have been tollthat
aws which
not interfere. Shall not, then, the
who same
bind us from interfering with thoseimperative rind
tres-
pass on their soil, be "1"
il
turned, and their
binding when the sides
are
rne
soil ? During this
citizens trt spass on our
discussion, Gentlemen, attention has beets
your
directed to some
tances, supposed to be
few inst
will not detain you at
analagous to this case.
I cannot allow an occasion of
this late hour, but
se much interest here and elsewhere, to pass without
one word with reference to these instances which are
1 of the case of Florida • it ,a
cited. We are remindes
~
and annoy a ' Is
's
system of aggression , oaance contt-
a protracted .
more than three years. No two cases are
nued there for
more dissimilar ; at last
Gen. Jackson followed the fugi-
tivelndians out of their territory ; and what then was
the result ? there was no case so extreme as that, yet
iby the very extremity of necessity, n protection of our
own rights, as you remember, gentlemen, a committee
of both Houses of Congress, to whom was referred the
subject, reported against the conduct of General
Jackson ; although the majorities, were his political
friends, yet they reported that the act was illegal ; he,
then the darling of the nation, covered by fresh laurels,
committed this deed, which that committee were com-
pelled to declare an unlawful act of aggression. Why is
that brought fore and here ? Again you are referred to the
case of the Leopard and the Chesapeake ; if I should so-
lect one case to maintain the decisions of our Court, it
should be that case ; a gross outrage was committed by
that vessel on our crews ; the Government complained ;
England disavowed the act and the individual was pun-
ished. One word more ; although lam conscious lam
trespassing on your patience, permit me to say one