The Sun.
London, England, 1841-11-01 00:00:00

THE .SUN, LONDON, MONDAY, NOVEMBER 1, 1841.

boats; I stood within ten or twelve feet of most of the
boats as the men west on board ; and while they
were preparing I was walking about among than,
which afforded me the means of knowing who em-
barked. I know Alexander M'Leod, late Deputy
SI-..eriff of the Niagara district. I did not see him
when the boats shoved off to destroy the Caroline ; he
was not in my presence this evening. I made a return
to the Lieutenant-Governor of Upper Canada, of the
officers and men who destroyed the Caroline. I am
sure the name of Alexander M'Leod was not among
them, because he was not one of the party ; therefore
his name could not have been in any return made by
me. I was not in command when the forces took pos-
session of Navy Island. Captain Drew is now at
Woodstock in the Brock district of this province.
Shepherd M.Cormiclt, Esq., of the township of Lon-
don, in the district of London, Canada, aged 49 years,
being examined on the part and behalf of the defendant
(M'Leod) says •—" The first time I ever saw Alexander
M'Leod was on the night of the 28th of December,
1837, when he was introduced to me by Captain
Graham. I never saw him until the time before men-
tioned. I was in Chippewa at the time of the destruc-
tion of the Caroline, and for some days prior to it. The
persons who went to destroy tl.e Caroline embarked :t
the mouth of the Chippewa R.ver. I think they were
standing there about half an hour before they em-
barket). I was getting the beets ready. I took the
list of the names, and went round to get voluntr era by
direction of Captain Drew, as I was second in com-
mend. When the boats went to destroy the Caroliee
Ido net know where Alexander M'Leod was. I did
not take down his name, and am positive he was not of
the party. I was the second man on board the Caro-
line on the night of her destruction, and in different
parts of her. I was wounded and put into one of the ,
boats before the other assailants left the Caro-
line. I did not see Alexander M'Leod among the
assailants, and am positive he was not one of them.
Alexander"M‘Leod called on me shortly after the de-
struction 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 advantage of the " said
Alexander M'Leod." To ;the cross-interrogations he
says, " I am a Lieutenant in the Royal Navy ; 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. On the night of the 28th
December, 1837, Alexander M'Leod accompanied me
in a boat around Navy Island. I did not again see
him until after the destruction of the Caroline. I ne-
ver conversed with him, nor did I ever hear him con-
verse with any person on the subject of the Caroline
previous to her destruction.
John Harris, of the town of London, in the Dis-
trict of London, Canada, aged sixty years, being ex-
amined on the pet and behalf of the defendant
(Alexander M'Leod) says :—I have no personal ac•
quaint nee with Alexander M'Leod ; I am net eer-
tain that I ever spoke to him in my lite. I knew him
by sight not for a longer period than a week. I recol-
lect the destruction of the Caroline. 1 was in Chip-
pewa about that time, end about a week or ten days
before she was destroyed. Those who went to destroy
the Caroline embarked at the mouth of the Chippewa
Creek, in the district of Niagara. The men were in
the boats half an hour before they started. They
were ordered into the boats as they arrived. I was
amongst them engaged under Captain Drew, in
manning the boat e I had every opportunity that
an officer has of seeing and noticit g those engaged in an
expedition under his command. I saw the Clroline
on the night of her destruction. I was one of the
boarding-party. I hoarded her abaft the wheel house ;
went forward to the forecastle hatchway, and was after-
wards in her cabin. I went on at the same time as the
other assailants. 1 believe I was the last person who
left her. Alexander M'Leod was not with the assail-
ants, and had nothing to do with the destruction of the
vessel. I know of no other matter or thing, nor can I
say any thing touching the matters in question in this
cause, that may tend to the benefit or advantage of the
said Alexander M'Leod, besides what I have been in-
terrogated unto. All I can say is, lam positive Alex-
ander M'Leod was not in the boats, as I was actively
employed as aid-de-camp to Captan Drew, in superin-
tending the manning of the boats.
Angus M‘Leod, of the township of Kingston, in the
Midland District, aged twenty seven years, being
sworn. and examined on behalf of the defendant; says—
Ido know Alexander M'Leod. He is my brother.
I have known him since he came to this country, ex-
cept when he paid a visit to our family in Scotland, He
came to this country in 1831, since which time I have
known him intimately as my brother. Ido recollect
the time of the destruction of the Caroline. I was at
Chippewa at that time. I went to Chippewa the day
previous to the destruction of the Caroline, in company
with my brother, Alexander M'Leod. I was not con-
cerned in the expedition, and did not know of it unt 1
they had started. I do not know when the expedition
embarked and pushed off from the Canada shore. To-
wards the evening of that day I saw Alexander M‘Leotl
on horseback. As I think, he told me he was going
on horseback to Stamford, distant about three and a half
or four mile., L JeulA
that evening for Stamford. He was not in my pre-
sence from the time that he was on horseback as I
have before stated, until the next morning ; I was not
on the beach when the boats started, and did not go in
any boat from Canada to Schlosser upon that occasion ;
the nearest I was to the Caroline on the night of her
destruction was at the bank of the Chippewa Creek,
being distant two and a half miles from Schlosser ; with
regard to the presence or absence of Alexander M'Leod
during the attack upon the Caroline, I can say nothing
more than what I have already stated ; I have reason
to believe I saw the men who were engaged in her de-
struction, as I saw them land from the boats that came
to the Canada shore from that direction, after I saw the
boat on fire ; I did not see Alexander M'Leod among
them, and I believe he was not among them. I did not
think of looking for him, knowing where he had gore.
Ido not know Sir Allan M'Nab by sight. I do not
know where he was when the expedition started, nor do
I know who commanded the expedition, or by whose
command the expedition was undertaken. I saw Alex-
ander M'Leod about nine o'clock in the morning after
the destruction of the Caroline, either in Stamford or
on his way from Stamford to Chippewa. This was the
first time I saw him after we had parted the evening
before in Chippewa, when I either saw him on horse-
back, or when he stated he was going on horseback to
Stamford.
Evidence of F.' Clevely, Esqe—The first time I
ever saw Alexander M'Leod was on the evening of the
28th of December, 1837, when he was preparing to
accompany Captain Graham round Navy Island ;
he
remained during the greater part of the night at our
quarters ; I was present when he embarked and when
he returned, hut have not seen him since ; I perfectly
recollect the time of the destruction of the Caroline ;
I was at Chippewa about that time ; I had been there
three days when it took place; the persons who went
to destroy the Caroline embarked at the Chippewa
river, near its mouth ; they were standing on the bank
about half an hour before starting; I was there during
the time, and saw most of the men embark ; when the
persons who went to destroy the Caroline embarked I
do not know where the said Alexander M'Leod was.
He was not in the boat with me. I have never seen
the said Alexander M‘Lcod since the morning of the
29th of December, 1837, when be returned from the
expedition round Navy Island with Captain Graham.
When the boat pushed off to destroy the Caroline I
went in the boat commanded by Lieutenant Beers,
of the Royal Navy. I saw all the persons in
the boat, I went in from Canada to Schlosser.
Alexander M'Leod was not one of them. I
did not see him on my way from the Canada shore to
Schlosser. I was on board of the Caroline on the
night of her destruction, and went into most parts of
her. I boarded her at the same time as the other as-
sailants, and left her about the same time they did. I
did not see the said Alexander M'Leod among the as-
sailants, neither do I believe that he was one of them.
I saw all the men who composed the expedition. Alex.
M'Leod was not one of them.
In answer to the cross-interrogatories, he said—l re-
side in the town of London, in the district of London,
and province of Canada, and I have resided there be-
tween six and seven years. lam a native of England,
and a barrister-at-law.
Edward Zealand, of the town of Hamilton, in the
Gore District and Province of Canada, mariner, aged
45 years, deposed as follows :—I do know Alexander
M'Leod, and have known him since about January or
February, 1838. I was not acquainted with him in
December, 1837. I knew his person by sight in De-
cember, 1837, but did not know his name was M'Leod
until 1838. I think him a native of Scotland and a
British subject. Ido recollect the destruction of the
Caroline. I was in Chippewa at that time and had been
there from about the 25th December, 1837. The ex-
pedition embarked from the Chippewa Creek. I think
those who embarked were engaged in the preparations
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 those who
went except the persons in the boat in which I went.
I do not know where Alexander
k now M‘Lel d was
he
at
the time mentioned in the interrogatory ;
was not in the boat in which I was ; I went on the ex-
pedition in a boat commanded by Captain Drew ; I
saw all the pet sonsin the boat I went in from Canada
to Schlosser. Alexander M'Leod was not one of them,
and I did not see him on my way from Canada to
Schlosser. I did see the Caroline on 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 M'Leod among the assailants, and I do not
believe he was one of them. There was a dead man
lying on the dock at Schlosser, but he was riot conveyed
there. The man referred to met his death during the
attack upon the Caroline, but I do not know whether
he received the shot on the Caroline, or on the dock.
I think the shot which struck him proceeded from the

direction of the tavern on shore. He could net have
been carried or conveyed to -the dock without ray
knowledge.
In answer to the cross-intern tgotories be said—l re-
side at Hamilton, and have resit led there about 6 years
lam a native of England, and have resided in Canada
since the year 1813 ; I am aged 45. years ; I am a mariner
Hamilton Robert O'Reilly, Esq., of the town of Ha-
milton, in the Gore District, Ca nada, says--I have
known Alexander M'Leod about nine years or upwards.
I have met him in his character of Deputy-Sheniff, anti
transacted business with him, and had occasioteally met
him while travelling at inns, and at several 'sittings of
the Assizes, and I have no doubt he is a native of Scot-
land, and a British subject. I was at Chippewa on the
26th day of September, 1837, and continued there un-
til some time after the destructicn of the leant. We
embarked from near the mouth of; the Chippewa creek.
We were upon the beach about. fifteen nainntes before
our embarkation. During that time I was in the boat,
with the exception of a short period while in search of
oars. I had not a good opportunity of knowing all
persons engaged in the expedition, but speak positively
with regard to those persons in the beat with me. as it
was my duty to determine the 'number by counting
them. I know not where Alexande r M'Leod was at the
time of this expedition, but I know that he was not in
the boat with me. Ido net know where he was at the
toe: mentioned in this interroga.tory. He was not
within my observation, and I think I should have seen
bins had he been on the expedition. I saw a majority
of the persons engaged in the destruction of the Caro-
line upon their lending upon the Canada shore, or im-
mediately afterwards. I did not see Alexander M‘Leo'l
among them. I did not see the said Alexander M'Leod
among them at any time that nig ht.
In answer to cross interrogate tries he said—l reside
in the town of Hamilton, in Canada. I have resided
here since June 1839. I am a native of Canada. lam
past 30 years of ege, and am a barrister-at-law. I held
in December 1837, and January 1838, the temporary
rank of Lieutenant at Chippewa, in an independent
volunteer company. I was for a few days at first at-
tiched to the land forces, and was afterwards removed
to a schooner under the command of Lieut. or Capt.
Graham, of the Royal Navy.
William Srnartlight, of the township of North Ox-
ford, in the district of Brock, and province of Canads,
was in one of the beats commanded by Mr. Elmsby,
and he deposed that M‘Leod was not in it. In other
respects he corroborated the other witness. He did
not see M'Leod, nor did he believe he was in the ex-
pedition.
Thomas Hector, of the city of Toronto, in his exami-
nation pare an account of the transaction in agreement
with the statements of the preceding witnesses.
Amongst other things he said :—He was in command
of one of the boats, and Alexander M'Leod was not in
that boat, nor did he sec him at all that night ; the boat l
which be commanded was one of the boats which did
not reach the Caroline, he having returned to change
the rowers ; after the expedition they supped together
at a tavern where he saw a list of those engaged in the
enterprise, and M‘Leod's name was not one of then,.
Duncan Cameron's deposition contained no ne w fact.
John Gorden commanded one of the boats, and he
deposed that M`Lood was not in his boat. His exami-
nation closely resembled preceding once.
Christopher Beer, a naval officer, who commanded
another boat, gave similar testimony.
Colonel John Chisholm, of the 7th Gaze Regiment,
of the township of East Flamborough, Canada, was on
the beach when theexpedition started, and raw and knew
most of the men composing it. He said I cannot state of
my own knowledge where Alexander M'Leod was at the
time mentioned. I have reason to believe that he was
on his way ,to Queenston. I have reason to believe
so from the following circumstances :—I was then eat-
ing as Assistant Quarter-Master General, at Chip-
pewa. The horses of all bearers of despatches were
fed at my quarters. Amongst them Alexander itl‘Lectel
arrived at my quarters on horseback, in the afternoon
of the day on which the Caroline was destroyed. I
understood at the quarters of Sir Allan M‘N ab that
M'Leod was to leave Chippewa with despahches for
Sir Francis Head, at Toronto, and saw M‘Le orl's horse
taken out of the yard at my quarters, before sunset of
the same evening, and at the weme time 1. saw M'Leod
within the Square, and I have no doubt but he left
with despatches, and I have no doubt '.bat be was not
among those who embarked on the extredition.
John P. Batterby, Esq., of the Gore district, Canada,
who commanded one of the boats, gave the same ver-
sion of the whole transaction as was given by others,
and deposed that M'Leod was not in his boat. His
boat did not reach the Caroline in consequence of his
crew being bad rowers.
Neil M'Gregor, of Chippewa, who was one of the
expedition, and sailed in J. P. Batterby's boat, was ex-
amined, but no new fact was elicited.
Robert Armour, of the town of Cobourg, in the
New Castle District, in the province of Canada, was
one of the expedition, and he deposed that AP Leod was
not in the boat in which he was, nor did he think that
M'Leod was upon the beach at the embarkation. He
sailed in Capt. Elmesley's boat. He, with all the other
witnesses whose depositions were taken, deposed that he
did not see M'Leod at all in the transaction.
Hewlett I.ott, a Justice of the peace, from Pennsyl-
vania, examined by Isle. Opencer.—.l would nut beltuse
the witness Quimby on his oath.
By the Attorney-General—lnquiry was made of me
about the standing and character of Quimby, and that
led to my being here. He had known Quimby since the
summer of 1838, but any man being near Quimby would
soon form an opinion respecting his reputation.
Lansing Whetmore (examined by Mr. Spencer)—l
live in the borough of Warren, Pn_ ; I know Quimby ;
from what I know of him I would not believe a word
he said on his oath unsupported by other testimony. He
has been a pretty regular attendant on our Courts, and
has been in law himself.
By Mr. Spencer—lt was generally said by Counsel,
that if a witness was necessary they might send for
Quimby.
David C. Bates, examined by Mr. Spencer—l reside
at Canandaigua ; I know Samuel Brown ; I had a
conversation 1 think in February wills him respecting
his knowledge of this matter, and he said ho was sub-
poenaed to go to Lockport in the M`Leod case ; basked
him what he knew about it ; he said he did not know
much about it, or not enough to do M'Leod good orharm.
Mr. Spencer proposed to inquire into Drown's gene-
ral character for moral worth.
The Attorney-General objected.
The Judge said this question bad been elaborately
argued, and Judge Oakley had decided that the inquiry
should be as to the witness's character for truth and
honesty. This was the rule which he (Judge Gridley)
acted upon—truth and veracity was considered too
limited. If a man is dishonest, he is not a man of truth.
Examirasion resumed—For the last two or three
years Drown's character has been pretty good ; for-
merly it was rather bad.
By the Attorney General—He was formerly dissi-
pated, and he was considered rather dishonest. He
could not be relied upon, owing to his bad habits. It
was seven or eight years ago. Since that he has
been a pretty good citizen. He was in Canada two
years. I believe be had reformed before he went
there. He reformed some years ago, and then fell
into bad habits again ; and then he reformed again.
James A. Sears, examined by Mr. Spencer—l re-
sided at St. Catharine's, in the district of Niagara. 1
resided there on the sth of 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 command of the in.line picquct
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. I was there
at the embarkation of the expedition. I was mixed
up with the party. I then knew M'Leod.
I had known him very well since 1834. I
was acquainted with him as with a man in a
public office. I did not see him in that party. When
they embarked they began to row. Then some of the
sailors landed and " tracked." I received directions
that when the sentinels saw boats approach they were
not to challenge, lest it should be heard on Navy Is-
land. I instructed the guard to that effect, and to pre-
vent mistake, an officer of Co!. M'Nab's staff rode up
the line of sentinels as the boats went up. The expedi-
tion was to be kept as secret as possibl-. I went with
the expedition as far as I had charge. When the ex-
pedition retired I went amongst them, I had some
friends and acquaintances in the p :sly, and I wished to
learn the result. I saw all the men as they disem-
barked respectively, and I learned these were the five
boats which had reached the Caroline. I did not see
M'Leod among the number. I was frequently in Da-
vis's tavern in the night and also in the morning, I
saw nothing of M'Leod there. I saw him about
noon of that day. I and another officer had gone up
the river to near the residence of Captain 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 Colonel MeNab." Two men were coming
on horseback. I said "No one is MeLeod." They
passed on. The Navy Islanders fired at the horse-
men, and that fixes it on my recollection. There had
been cannon fired from Navy Island almost, I think
quite daily, and frequently in the night. They fired
at the people on the Canada main, and people
were killed.
The Attorn-General objected to this course of ex-
mn d they were not trying the Navy
affair.alslainadtn. li
Mr. ex-
amination.
Spencer 444 he should show yet that two hun-
dred stand of arms had, been stolen from Buffalo.
These circumstOpqN unknediately in connexion with
the affair, were • hui.;tent io be given in evidence. He
was surprised ill- V!`etiell Attorney-General should be
so restive on this itkeet.
Mr. Jenkins argued tb,at the evidence was inad-
missable. •
Judge Grieliby`ie'A)d 4C.,'''opirrion of the Supreme
Court would be binding On him,- and would govern him
if the prisoner's counsel should offer testimony on the

quetion raised last night, to which be 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 admissablt. in proof on
this trip).

Mr. Spencer—We propose to show that three per-
sons were killed on the Canada shore.
Judge Gridl y—l overrule it.
Examination resumed—l resided in St. Catherine's
ten years. I was a political writer for a newspaper. 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 persons I enlisted were coloured men. I suppose
they were natives of the United States. I had this
company at Chippewa. The recruiting officers were
not coloured men. No coloured men were allowed to
be officers. I was commissioned by Sir F. B. Head in
person. There were Indians in the service.
The Court now tock a recess for dinner. On the
re-assembling of the Court, the cross-examination was
lesumed and continued at great length.
Mr. Spencer—We now propose to put before the
Court the following papers :
First—The action of our Minister in Eneland.
Second—A communication from the British Go.
vernment to Mr. Fox.
Third—lnstructions from Mr. Forsyth to Mr. Ste-
venson, given shortly after the affair of the Caroline.
Fourth—Letter of Mr. Stevenson to the British Go-
vernment, demanding satisfaction in this matter.
Fifth—Answer of Lord Palmerston, who was Secre-
tary of State for Foreign Affairs, to Mr. Stevenson.
Sixth—A letter of Mr. Forsyth to Mr. Fox.
Seventh—Letter from Mr. Fox to Mr. Forsyth, with
accotapan3ing documents.
Eighth—Letter from Mr. Fox, 12th March, to Mr.
Webster, Secretary of State.
Ninth—Letter of Mr. Webster to Mr. Fox, dated
April 24, 1841.
Ile (Mr. Spencer) did not know but these woul I be
all that might be necessary. There were others which
he desired to introduce. These had all now been pub-
lished, 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 recalled his (Mr- Spen-
cer's) opening. It is with a view to present the
question in such a state before this Court upon the
traverse of this issue, that having established the
fact that this was the exercise of the pubic force of
Great Britain, and being acknowledged as an nct of
the public force on the cart of Great Britain, the indi-
viduals who acted in obedience to their orders are not
individually responsible. Substantially upon the prin-
ciple contained in llr. Fox's letter to Webster in
March ?est, and the acknowledgment of Mr. Webster
in that matter—both Governments insisting that there
had already been an invasion of their respective terri-
tories.
Attorney-General—Thetis, 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 Government, and are

not individually responsible. Although the Sie
premc Court could not look into the whole case, y
here upon the traverse of the indictment we arc en
abled to do so, and by means of this documentary evi
dence to show the extent of the state of the war. We
intend to enlarge very considerably, to show that a very
considerable amount of arms and munitions of war were
concentrated upon Navy Island ; to show that the ar-
senals all along the frontier had been plundered, and
the military stores taken to Navy Island ; that the
very arms which were taken and returned in the
car, were, with the knowledge and consent of the
Mayor of Buffalo, allowed to be taken out of the
arsenal by the patriots, and taken to Navy Island.
That, in short, if your Honour please, there was such
a state of things on the frontier, that the whole fron-
tier was acting in subserviency to the attacking party
on Navy Island. Not that there were not many ho-
nourable exceptions there, but the authorities of
New York, as a Sovereign State, were utterly pa-
ralyzed ; and with respect to the authorities of the
United States, they had no officers or troops ; but
that there was a state of war. Now, Ido not say a
solemn war, but, as between the belligerents con-
tending, there was a state of war emphatically—
a war to all intents and purposes. It needed not
the declaration of war by Great Britain ; it was
enough that the dependencies of Great Britain,
charged with the duty of defence, had an assail-
ant —that their territory had been invaded that
near them was an intrenched enemy, who pro-
fessed to establish a provisional Government, which
would effect the dismemberment of the kingdom of
Great Britain, and lead to the formation of an
independent Government in one of her provinces.
To subvert the British Government was this armed
force employed. We propose to go farther still,
and to show that it was a necessary act of the
Provincial authorities in self defence. We propose to
show it by establishing the proposition, and in confor-
mity to the well settled rules of war,.that this steam-
boat was in the hands of the assailants, or the attack-
ing party that it was an aogino of floctrnetinn and
annoyance more potent and effectual than any other
thing in theifellploy. We are to look at the surround-
ing circumstances. What was Schlosser? Suppose
the Niagara river were no wider than from Navy Island
to the Canada shcre, this whole army instead of being
on the island would have been at Schlosser, and receiv-
ing arms and munitions of war from the whole surround-
ing country, and they were there accordingly, as at Navy
Island, and opening a war upon the British dependen-
cies, and threatening to invade the Provinces, these
Provinces would have as much right to defend
themselves by working the destruction of the assail-
ing party, as they would have had at Navy Island ;
and if so, this boat, passing back and forth, was
subject to destruction, as a course of necessary self
defence. Now what are the rules of war in relation to
this ? In any warlike movement that the party assailed
is bound to wait till the attacking party have reached
them and opened their batteries on them ? Not at all.
Whenever an army is approaching with a view to an-
noyance, the assailed party has just as much right to
work the destruction of that army, as after they have
reached and are ready to open their batteries. If the
fact was known that she (the Caroline) was coming
down the river —if the Canadians knew that she was
coming down with munitions of war, to annoy them,
they had just as good a right to work her destruction on
the passage as at any time after arriving in the Province
of Canada. It is a great mistake to suppose that we
are to apply the principles of an assault and battery
in a war movement. It is a fundamental error to ap-
ply any such doctrine. You cannot apply the doctrine
of retreating to the wall to get rid of an assailant, it
being the fundamental doctrine that, when open hostili-
ties have commenced, they have a right by stratagem,
or any other means, to get advantage and make a de-
struction before they have an opportunity of doing an
injury. The Canadian party were assailed, and had
just as much right to defend themselves as at Navy
Island or the Canada shore. Does it make any diffe-
rence between Navy Island and Schlosser, or between
Navy Island and Chippewa ? Suppose a lodgment had
been made at Chippewa, and this steamboat had been
running to Schlosser and that point to give aid, and
strength and succour, I would ask whether as between the
American people and Great Britain, that persons on the
Canada shore would not have a right to work the de-
struction of that boat wherever they could find her,
whether in their own waters or ours. Would it not
be a proper matter of self-defence ? Where was this
warlike movement ? We are to look to the surround-
ing circumstances. They were divided by a rapid
stream, and but little above the mighty cataract over
which no human being ever went alive. It was,
therefore, extremely perilous to navigate that stream
with row boats at any time, and, particularly at
that season of the year. They flad no steam-boats
or armed vessels. A steam-boat came down, say
for hostile purposes. How was it to be guarded
against ? In the day time, when the ?team
was up, what would be the use for a few
row boats to make an attack ; with her steam
she could run away from them, or she could run
down and run over any boats which might be brought
against her. They could not come out in the daytime,
when the boat was in active employment, with steam
up, with any prospect of success. 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 ?
Could this boat have been assailed with any hope of
success in the daytime, in the vicinity of. Navy Island
or Schlosser ? I 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 instrumen-
tality of that bolt ?—let her go on, and do nothing ?
They had a right to work her destruction for their own
security and self-defence, to prevent a descent, for
they knew they intended to.work it revolt in Canada.
They knew that they would have many of the discon-
tented rallying to their standard. It was not whether
trno eras to
a spot where they couldas to be made upon the— nucleus or rallying
500 or even 2,000 were upon the island. They had
orpanollilyry,
fThiserectreffiw
wastihi
ieeh
aadghen
standardeasteeurg
Province of Canada. They had erected the standard,
' to which the discontented were ready to fly ; a revolt
had been already attempted at Toronto, and put down
by the militia. It was intended again to enter
Canada. How was it to be done ? By collecting
sufficient materials at Navy Island, and through the
instrumentality of a steam,boat, to make a descent
upon the Canadian main: Now I would ;submit to
your Honour whether they. had not a
,right.
to put it
out of the power of this party to destroy an instrument
which was calculated to promote and fUrther the views of
the attacking party. Let us see ho* it is in our own
country ? How was it withrespect to 'one of the
Spanish Islands in Florida, only a few years ago, per
haps 1818, when annoyance was expected to the United
States from the occupants ? 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 ?
Ile sent the public force of the country against
them, for no other reason than that it was
a medium of communication by which slaves
were introduced into the United States. A force was
sent with instructions 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 talien possession of the Island ; it was far from
being a case Ike 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 had not voluntarily surrendered, and our bat-
teries 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 Atforncy-General to sly if he
knows, from the authority of the Supreme Court, or
of any other nwhority, in which way they would be
murderers. This was a case in our own country, and
the President put it upcn the acknowledged law of na-
tions. I allude to the occupation of Amelia 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 declare-
t' on of war, to work individual irresponsibility. When
General Jackson had commanded, he had 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. He marched into 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
immod ate 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 s itisfaetion, or find just cause of war on our
part. It does not at all involve M'Leod, or any other
one charged with being of that party. There is a wide
distinction betvve:n a Government being wrong and
the soldier Icing wrong, and 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 had seized upon Grand Island, whilst we were at
peace with Great 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? 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 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, 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 tha United States as an entire
transaction ; that they have taken cognizance of it, and
hese a right to take cognizance of it ; and having taken
cognizance of the mstter,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 conclusive. That
must be the law, or the Government of the United
States is a rope of sand. They have this subject at this
moment in a state of treaty—in a state of negotiation
j between the two Governments, and will it be denied
that the United States have as much right to demand
satisfaction for the killing of Durfee as for the destruc-
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 bands 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 decide it. This indictment
has been brought into 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. Tac
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 not such a ease as
woule induce them to exercise it, and that the motion
should be denied for want of right, and on account of
the absence of any thing like war, and for the reason that
there wcs nothing in the pending negotiations between
our Government and Great Britain which took away
the jurisdiction of New York for an offence 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. Ido not feel authorised to entertain, or
express, if I entertaircd, a different opinion. Their
opinion in th's matter is law with me, and briefly
stated, is this :—A baud 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 car,
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 she ,might become a
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 be 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.
I ern 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 case lath Johnson,