The Sun.
London, England, 1841-10-25 00:00:00

not obtain lodgings, and came to the boat. The captain r
gave theta liberty to lodge upon the boat, so far as ,
her accommodations extended. It will appear that
some eighteen or twenty went to the boat, and took
up lodgings. It will also appear that this boat was
manned ; that she had no equipments of her own; 'nor
had she on board any arms, nor were the men on board
armed. Nor were those who came on board to lodge
that night armed. At ten o'clock, as will appear, the
watch was set, and the intnates retired to their repose,
unsuspicious of danger, as they were unconscious of
wrong. But about twelve o'clock—the testimony may
vary from half-past eleven until one o'clock—the captain
was aroused by the watch who intbrmed him that boats
full of men were approaching, and that men were coming
on board. Presently the noise of tramping and shouting
was heard, and the men, aroused in this manner from
their slumbers, hastily arose, and seizing whatever of
their clothing was at hand they rushed for the compa-
nion-way, or gang-ways, to every avenue through which
they might escape. Some were fortunate enough to es-
cape with their lives, others were met by armed men,
and thrust at with swords and pikes, and severely
wounded ; yet they were enabled to escape
with their lives. It is but too probable that there
were still ottiers who, alarmed at the sudden onset, by
the cries and shouts, the clashing of arms and firing of
pistols, and cries of " no quarter,- and apprehensive of
being put to death, concealed themselves beneath and
around the boiler and other places, and came forth after
these ruffians had left the boat, only to meet the rushing
flames, and to hear the roar of the Niagara. But, Gen-
tlemen of the Jury, those who had escaped from the boat
found that they had not thereby escaped from danger.
Some who had escaped from the attack upon the deck of
the vessel were pursued into the warehouse ; and the
warehouse was searched with lights to ascertain, in the
language of themselves, if some of the d—d Yankees
were not concealed there. Amos Durfee, whose sad fate
is the immediate cause of you: being emparnelled here,
was found upon the wharf, some four rods distant from
the boat, a ball having been shot through his head, enter-
ing the back part, and coming out in front. It had been so
near that the cap upon his head was singed with fire from
the emn. He had doubtless been shot on the spot, and
died instantly with the wound. It will appear also that
the assailants who had committed this bloody deed were
some of a band of armed men, between forty and sixty,
who had come from the Canadian shore. It will appear
before you that it was a secret and voluntary expedition,
armed for the purpose of the destruction of the Caro-
line. At that time, Gentlemen of the Jury,. there was
on the Canada shore an army of some twenty-five hun-
dred men, who had been collected there on the occasion
of the seizure of Navy Island by the insurgents. They
were there avowedly for the purpose of repelling any at-
tempt at invasion which might be made by the insur-
gents.
From these circumstances, it has been alleged
that the transaction was one more of a military character
than civil ; that it was a transaction of armed men, act-
ing in an organised manner and to be governed by laws
and rules which do not prevail in Courts of Justice.
Gentlemen, it is but right that your minds should be
perfectly disembarrassed ; I therefore present the case
to you broardly, that when the testimony is brought be-
fore you, you may see its bearing and application. I
will submit the decision of the Supreme Court, given
upon the facts in evidence, after able and eloquent argu-
ments on the part of the counsel for the prisoner—given
after great deliberation—an opinion which is unanswered.
and unanswerable. In that opinion, all those questions
which might embarrass you, under the ingenuity of
Counsel, have been entirely
sdsposed of, and the real
points which you are to pass upon are distinctly pointed
out to you.
The Learned Gentleman read the opinion of Judge
Cowen, recently made on the case brought before the
Supreme Court of the State, by the prisoner some few
months ago. With that able opinion the public are faini.
liar. Before the Learned Gentleman got through the
whole—

Judge Gridley reminded him that the hour of one
o'clock had arrived, which time the Court had fixed to
adjourn for dinner.
Officers were then sworn to attend the jurors, and
other officers to take charge of the prisoner, and the
Judge charged the Jury (for whom accommodation was
provided at the Temperance House), not to converse on
the subject of this trial, nor to allow other persons to
approach and speak to them until they shall have re-
deemed their verdict. He also charged them to ab-
stain from spirituous liquors, except as a medicine,
as they might thereby vitiate their verdict. In a civil
suit, a case had occurred in which the verdict was set
aside for that reason. He then directed that the printed
arrangement for leaving the Court should be reversed,
and accordingly the jurors left first, in charge of
officers, then the prisoner aecompanied by the Sheriff,
and Mr. Clark Robinson, the Marshal of the district ;
next the bar and the reporters, followed by the Court
and the audience. The prisoner proceeded through the
public street, with his attendants, to Bagg's hotel, where
dinner was provided for him, without exciting any
curiosity, except of some eight or ten small boys. There
were very few strangers present, and the citizens of
Utica apparently feel no interest in the case.
At two o'clock the Court was again opened, and the
same quiet and order prevailed, the Court being but i,
partially filled. The names of the Jurors were called
over, and
The Attorney-General resumed anti concluded the
reading of Judge rowen's opinion and decision.
The Learned Gentleman resumed.—ln the first place,
the Supreme Court of the State of New York had
decided that this was not an act• of war, that it was
not to. be governed by the laws of war, but of peace;
not by the laws of Canada nor the United States ; but by
bur own municipal laws. There is; therefore, no considera-
tion in the case, which would not be brought before you
any case, where an attack has been made and one of our
citizens murdered. The law is precisely the same here
as in our own municipal laws under-which we all live,
and act, and seek protection. There is no justification,
or excuse, or palliation. Another point is to excuse the
act on account of its being done in a pressing and din-
gerous assault ; I will add one suggestion ; it is this,
that the offence which has been' Committed is an offence
against our laws alone; and no other laws. BlOod has
been shed upon our soil, and we, the people of the State
of New York, are held responsible, and no other people.
If the prisoner is not punished here, he will be punished
nowhere. Not in Canada. Not under the laws of the
United States. He has violated no law of the United
States. It is here, and here alone, that the avenger of
blood calls upon you to answer as to the guilt or inno-
cence of the prisoner. I will make another suggestion.
Throughout the Court proceeded to take facts; which he
states to be true. They presume that Dnrfee was one of
the insurgents in arms against Canada upon Navy Island.
They have placed him in the same position as if he'were one
of the insurgents, or as they would have placed Van Rens-
selaer himself had he been killed instead of Durfee. This,
you will perceive is a fallacy, and that the unhappy man
who met his death there was as innocent as you are, Ile
was there on his lawful business as you might have been,
anti had any other citizen been killed in that situation
the facts would have been the same as in the case of the
unfortunate Durfee. The only question which you have
to decide is the simple fact, " Is the prisoner one of those
wit° assailed the Caroline, and killed Durfee ?" To
that Dingle fact are you limited. The questions of law
have been disposed of by the Supreme Court, by which
decision you and this Court and all are bound. You
must bear congantly in mind that the testimony which
bears to any other point except whether he was there or
not is to be thrown from your mind, as calculated to per-
plex and embarrass. The question then is, was the pri-
soner in that expedition ? Upon this point we
shall examine numerous witnesses ; some of them
will show that upon various occasions and in pre-
sence of those who were in it, the .prisoner declared
he was there. We will show that previous to this
expedition, the prisoner was one of the most busy anti
active.in getting up this expedition—that a few days pre-
vious he went to Buffalo for the purpose of seeing the
boat, and if it were coming to Schlosser. He went round
the island in various ways, and appeared to take a very
active interest in the affair, and we shall show you that
he was engaged in enlisting persons for the expedition.
It will also appear before you that on several occasions
he exhibited a pistol and a sword with blood upon them,
and repeatedly pointed to the blood and said it was the
blood of a tl—d Yankee: Several witnesses will prove
before you that they saw him enter the boat to go on
that expedition—again, others saw him leave the boat on
its return. Such, Gentlemen, is the nature of the evi-
dence which will be adduced on the part of the prosecu-
tion, to show what part the prisoner had in this expedi-
tion—the destruction of the Caroline, in which Durfee
met his death. Little now remains for me but to lay down
some principles of law, that you may judge of the weight
and application of evidence, which shall be given in
before you. Having stripped the case of all extraneous
law, and all foreign law, we are to try the case
according to our law as it is administered in England, of
the government of which the prisoner was a subject.
The first thing is, that every murder is presumed to be
malicious. It is for the accused to show that this was
cause of excuse. When one man meets his death by the
hand of another, it is presumed to be a murderous act,
unless the other can show that it was done by authority
of law, as in the case of a sheriff, or in necessary self-
elefence, as when assailed by a robber, ,or some excuse
or justification of this kind, to excuse the person whose
hands are marked with the blood of the person whom he
has slain. The second proposition, that malice is neces-
sary to constitute murder, confined to an intention to take
the life of an individual, the malice prepense essential to
constitute murder, consists in a foul design under the
dictates of a depraved, wicked, and malicious heart.
It is not necessary for you to say that the hands of
the prisoner were the hands that slew Durfee.
The third proposition is : if an action be un-
lawful, and its deliberative intention is mischief, in-
discriminately, and- death ensues, beside the original
intent, it will be murder. no matter whether they in-
tended to kill when they left Canada, if they were bent
on act of villany, and they must take the consequences.
The fourth proposition—in order to convict the prisoner
of murder, it is not necessary to prove that the fatal
wound was given by his own hand ; it' he was aiding
and abetting, he is a principal in the felony. le several
the '
' persons set out together, or in small parties, as several
boats starting from Canada upon one common design, he
it for the purpose of murder, or for other felony, for
urpose of murdering urfee or destroyine. the
Caroline, or any
,other object, some being employed to
tch, some to prevent the escape of those who are more
immediately engaged--stliey are all, in the eye of the law,
present at the act committed. These are the princi-
evidence h rims the
is
es admitted ; they are the known rules of law, and
it is only for you to apply to these principles the
evidence which shall be adduced ; and if the
rings hprisoner
alternativew•ith in
butthe
to p Prbvinrcoe
of the law, there
nOunce the verdi ict which your oaths will require.
Before you will be
the followi facts must be established:—First, that Dur-
fee Vas killed
seenndlY, that; he was killed in the
county of Niagara ; thirdly, that, he was killed by •
a pis-
tol or musket shot, or a wound of a similar character; and,