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

recognised ISPLeod with such certainty ; and that
which they have thus proved is enough to throw some
shade of suspicion on the whole. That is the view
taken of it by the prisoner's Counsel. Whilst on the
other hand, the Counsel for the prosecution insist that
it is a mass of testimony which you must believe, and
which, believing, you cannot doubt the fact of the pri-
soner's guilt. It is your province to criticize all this
and pass upon it. The other branch of the evidence
is that contained in the confessions of the prisoner ;
and there is a principle of law—applicable to that de-
scription of evidence to which the Counsel for the pri-
soner has directed your attention—that confessions are
in themselves the most surprising kind of evidence, easily
fabricated, and difficult to be disproved, liable to be mis-
taken, partially heard, partially remembered, and unless
corroborated by other testimony, the rule adopted by the
elementary writers, and sanctioned by the most distin-
guished jurists, is, that they are the most unsafe descrip-
tion of testimony. Nevertheless they are competent
to be weighed, judged of, and passed upon like all
the other evidence in the case. I therefore, Gentle-
men, call your attention to the evidence of Henry Myers,
and I would admonish you that one rule by which you
are to test the declarations of witnesses is, that you are
to see whether they are probable—like what men in
like circumstances would do, He testifies that on one
occasion, whilst he was passing Niagara Falls, he stopped
at a tavern and saw M'Lleod with a number of others—
that M'Leod was accosted by name by another of the
party—that he boasted that he had killed one d—d
Yankee, or rebel, and that he compelled the witness to
"treat" the party. You will judge of the credibility of
this witness's story; but there is one thing he said which
has not been noticed by any of the counsel, and which
may aid you in passing judgment on his evidence—he
said that he marked the features of M'Leod well, as he
determined to use him in a similar manner if ever he got
him on this side of the frontier. The next witness is
Calvin Willson. He is the keeper of a ferry at Youngs-
town in Canada, and he says that a few days after the
destruction of the Caroline he went over to Canada—
went into a house where was a person of the name
of Raincock, M'Leod, and others whom he named,
who had been actors in that transaction, and that
M'Leod said one of the d—d rebels got shot on the
wharf. This witness has been cross-examined at length,
and confessed that though a poor man with a family he
had given 200 dollars to the "Patriot" cause, and de-
clined answering whether or not he had harboured
the notorious Lett. To rebut his testimony, a re-
spectable inhabitant of the town of Niagara, named
Hamilton, was produced, and testified that he well
knew Raincock, and that that individual was
absent in England at the time specified by Willson.
The next witness worthy of notice is Timothy Wheaton.
He was called by permission after the prosecution rested,
the Attorney General supposing that there had been a
reservation in favour of this witness. He deposes that
about a year before he had gone from Whilby, Canada,
where he lived, to Niagara—was near the ferry—saw
M`Leod coming up from the water side, and the witness
remarked to him that the sentinels had a hard time of
it—that they then talked of the Navy Islanders—and
about their number—that M`Leod said they never would
heve the Caroline there again, and added that he was
the second or third man who boarded her ; that then
some person, a stranger to witness, interrupted the con-
versation by taking M'Leod off ; that he (the witness)
turned from the ferry, recollecting he had not a pass, and
went back to the town. Gentlemen, you are carefully to
examine this evidence and decide according to your con-
scientious conviction of the truth as it really is. If you
believe this evidence, notwithstanding some objections
to it, and notwithstanding, some deductions which are
to be made ; if you believe that it does after all present
to you an amount of evidence which is sufficient to call
up the prisoner to answer, then you are to take into
consideration the defence opened before you. And it is
undeniable that in looking at this mass of evidence
there is much of it that appears questionable, and much
of it remains that is not powerfully attacked and that
does bear very hard on the question of the prisoner's
guilt. But passing from this you are then to look
at the prisoner's side, because it is the right of every
man put on trial here to present his witnesses, have
them examined, and if he succeed in establishing the de-
fence, to have the full benefit of it. That defence, Gen-
tlemen, is what is called an alibi. It is, in other words,
that he had no part or lot—no sort of participation in this
enterprise. And this, after the disposal of the first
qu'estion already passed upon, is the only other ground
of defence that exists. And in my judgment, no degree
of suspicion should attach to it as an original defence,
because it is, as I have just said, the only defence that
remains for the prisoner at the bar. If he were, in truth,
upon the expedition, then is he guilty, and so you mnst
pronounce him. But, Gentlemen, if he was at that time
five, six, or seven miles distant—if he had no participa•
don in that enterprise, then the same great principles of
justice require that you should pronounce him innocent.
The evidence sustaining this defence consists of the de-
positions of individuals avowedly participating in the
expedition ; and, secondly, of the oral testimony of
several individuals showing, or tending to show.
that M'Leod was during the execution of this enter-
prise at a distant spot, in another town. First, then,
with regard to the evidence of the commissions. The
prisoner's Counsel is right in telling you that evidence
taken in this way is, and should be, less satisfactory than
that given personally before you. But so far as the de-
positions themselves go to describe the individuals testi-
fying, you may derive some information respecting the
standing and character of these individuals. Some of
them are lawyers—some of them mariners—and some of
them officers in her Majesty's service ; and by their
description, they should all be men of character and re-
sponsibility. It has been said that this commission was
a "roving commission ;" that witnesses were examined
whose names had not been returned; but there was in the
spirit of liberality, and by consent, a stipulation made that
more witnesses than those named might be examined. It was
also hinted that some suspicion should attach to those
depositions, from the manner in which they had been
made up. [The learned Judge here described the man-
ner in which the commissions were executed, and showed
that no suspicion could properly rest upon them. He
then proceeded.] The Attorney-General has criticised
the testimony of these deponents with great minuteness,
and equally great ability. He has pointed out where the
witnesses have contradicted each other, or the truth. For
instance, some saying that resistance was made on board
the boat, whereas it has been shown that there was no
resistance. If the witnesses swore so, knowing that
they were swearing falsely, that will of course detract
from their credibility. But Wells himself testifies that
he overheard the sounds of fighting, and that in the dark-
ness or the night and in the confusion of the melee, they
all taking a part, had mistaken each other for the occu-
pants of the boat, and that they fought together. If that
were true, then it would not follow that in testifying as
to resistance encountered on board the boat they were not
false in the corrupt sense of the term. Passing from this,
there is this other consideration which must strike you in
the outset. If, when Alexander M'Leod sued out
this commission, and directed the Commissioners to ex-
amine persons who had been in each of the boats, and if
in truth he had been present there himself, he must be a
bold man, indeed ; because he must have supposed, that
the Commissioners would either have taken only those
who could not see in the dark, whether he was there or
no, or that the men would have been so corrupt as to
swear falsely, to extricate him from the punishment of
his crime. But this is no further evidence than as it
is a portion of the history of the transaction ; and with
these views you are to take up the testimony, and ascer-
tain, after solemn inquiry, how much credit you should
give these witnesses. It is undoubtedly true, Gentle-
men, that Sears cannot say, with any degree of certain-
ty, that M'Leod was not on board the expedition. It is
equally true, that M'Nab cannot say so, although he su-
perintended the embarkation of the persons engaged in
the enterprise. None but the All-seeing eye could pene-
trate the darkness that shrouded those there associated.
But then there are one or two gentlemen from among
the inmates of each particular boat, who have' een exa-
mined. Some of them knew M'Leod well before that
time ; others became acquainted with him afterwards ;
some talked with and recognised all their associates
and they all testified that M'Leod was not amongst
them on that night. Now, Gentlemen, it is proper
that you should apply the rule distinguishing be-
tween positive and negative testimony. It is true that
where one man swears he did see another at any parti-
cular spot and period, it is more satisfactory than when
he can only say that the other was not there. But you
will take into consideration the reasons which would
lead you to believe that the crews of each of the boats
must have well known each other, and so pass a correct
opinion as to their credibility when they say positively
that M'Leod was not amongst them. With this re-
mark, I leave in your hands this portion of the prisoner's
defence. We come now to the proof of an alibi, which
if sustained, can leave no doubt of the prisoner's inno-
cence, unless you can believe him gifted with übiquity.
The first witness to prove this is William Press. He
swears that he conveyed the prisoner and another person
to Niagara on the day of the destruction of the Caroline;
that he knows it to be that day from the fact of having
made an entry of the transaction in his cash book under
that date ; that he conveyed time prisoner in the evening
as far as Stamford, on the way back to Chippewa ; that
there prisoner alighted from the waggon, and went to
the house of Captain John Morrison. William Stickney
was called, and corroborated the evidence of Press, and
both, I may add, corroborate the statement of Hamilton
respecting Raincock's having left for Europe before the
commencement of the troubles in Canada. The family of
Capt. Morrison and himself swear positively to M'Leod's
being there on the night of Dec. 29 ; Capt. Morrison
states that he is enabled to fix the day from the circum-
stance that his friend Colonel Cameron called at his
gate early next morning, and informed him of the de-
struction of the Caroline, and gave him a fragment of the
rains which he had found in an eddy below the Falls—
that he told this to M'Leod, whom he found half dressed
iu the parlour where he had slept during the night—
that M'Leod was electrified, and, calling for his horse,
purposed to leave immediately, but finally remained for
breakfast, after which he went on his way. Then comes
the witness Gilkinson—that he met M`Leod on the day
after the destruction of the Caroline, on the road from
Stamford—that they rode up together to opposite Navy
Island, from which they were fired on ; that one of the
balls was picked up and handed to M`Leod, who carried
it with him ; and Sears, you will recollect, states that on
this day he saw M'Leod and another person riding along
that way, and that they were fired on from Navy
Island. This testimony is also corroborated by
that of Mr. M'Lean. This is the aggregate of the
testimony,r Gentlemen, on the part of the defence.
The evidence of the Morrisons, and tho decla-
rations of M'Leod on his examination, have been sub-
mitted to you, and criticised by the Attorney-General
with great ability. If he has satisfied you that the Mor-
risons may have been mistaken as to dates, and in par-
ticular, in reference to this great epoch •, and that the
other witnesses confronting them, may have also been
mistaken, then your confidence in this portion of the
testimony vanishes. But if you decide on just grounds,
otherwise, then it should, I think, be deemed satisfac-
tory in establishing the innocence of the prisoner.