The Madisonian. [volume] (Washington City [D.C.]) 1837-1845, 1841-10-16

magistrate, and that that gentleman refused 10 take
the affidavit, because Mr., Quimby WIS unworthy OF
credit; that he went 10 another magistrate by whom
the affidavit was taken and sent
Lott says that he resides in Lottsvle-that the
putaiion Of the witness Quimby while resident there
was very bad that he not to be believed oath
and that in informing the prisoners counsel of his
character he Mr.. L. had 70 private motives Of
venge malice to crafty. Now is said, and it is
true that ordinarily witness, TO nvadate the testi
mony Of another should be called from the neighbor-
hood But you the arbters of this question, and
in your hands leave il. -.r
The evidence Of Seth Human, for whatever il is
worth, is also before you When examined before he
said Mcleod was not by him that morning-he
says that he You will give this the credit
you deem it deserves.
Justice F. T. Stephens is then called and sworn
He teshes that he was present on the night in ques
ion, and that he saw three boats 60 out and return
and he distinctly and positively swears that be saw
Mcleod disembark at the beacon-light.
That is q statement which is not corroborated by
other witnesses and is the contrary hostile to the
statements of all the other witnesses both Sides
IL cannot be true. He dismissed from the stand
without cross examination. He has testified TO a
deliberate alsehood-a falsehood for which the paa-
ting plea Of The probability of mistake cannot be
offered.
Leonard Arson is the next witness He swears
that he saw Mcleod at the bar in Davis tavern that
there were others there who took part in the expedi
had committed the greatest crime that there he
saw Mcleod draw out his pistol aud declare that he
had killed ID Yankee, and that he pointed out
the blood on The stock of the pistol
This, II Is contended the part of the prisoner is
improbable stoIy-that he could not have seen the
blood on the pistol. And other considerations have
been submitted to you in relation 10 the testimony OF
this individual which it is unnecessary for to dwell
upon now. You the judges of their weight and
the attention which should be given them.
bali, IL hale -
the first class of evidence against the prisoner. That
is these the only witnesses who testify OF their
own knowledge as to facts unaed with confessions,
which 60 to connect Mcleod with this enterprise.
And the prisoners counsel contends that some OF
these witnesses have been mpeached and that others
have appeared in very doubtful circumstances that
the darkness of the night was good reason why no
very great confidence should be placed in the state
ments of those esng positively that they recog-
nized Mcleod with such certainty and that what
they have thus proved enough TO throw some shade
of suspicion on the whole That is the view taken Of
it by the prisoners counsel.
Whilst on the other hand the counsel for the prose-
cuton insist that it is of testimony which you
must believe, and which believing you cannot doubt
the fact Of the prisoners guilt 1t is your province to
criticise 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 description of evil
dence, to which the counsel of the prisoner has d.
selves the most suspicious kind of eVidence-easily
fabrcaed-and difficult to be disproved-liabe to be
mslaken-partialy heard-partially remembered
and unless corroborated by other testimony, the rule
adopted by the elementary writers, and sanctioned by
the most distinguished jursts, is that they the
most unsafe description of testimony.
Nevertheless, they competent to be weighed,
judged Of and passed upon like all the other evidence
in the case. therefore, gentlemen, call your alten-
ton to the evidence of
Henry Myers and would admonish you that one
rule by which you to test the declaration of wit
is that you to whether they proba-
ble-like what men in like circumstances would do.
The last is that on one occasion whilst he passed
Niagara Falls he stopped at tavern and saw Mcleod
with number of others-that Mcleod was accosted
by name by another Of the parytha he boasted that
he had killed one ID Yankee, or rebel,-and that
he compelled the witness to {. treat" the party.
You will judge Of the credlbility of this witness
story but there ia one thing he said which has not
been noticed by any of the counsel, and what may
aid you in passing judgment on his evdence-he said
that he marked the features of Mcleod WE'LL as he de-
termined to him in a similar manner if ever he
got him on this side of the frontier.
The next witness is Calvin Wilson. He is the
keeper of ferry at Youngstown, in Canada, and he
rone he went over tc Canata-went into a house
where was person by the name of Rayncock, Nc
Leod, and others whom he named, who had been &C
tors in that transaction and that Mcleod said of
the ID rebels got shot on the wharf.
This witness has been cross xamined at last, and
nfessed that though poor man with family, he
had given two hundred dollars to the "patIiot"
cause and declined answering whether not he had
harbored the notorious Lett. 10 rebuke his testimony
a respectable inhabitant Of the town Of Niagara,
named Hamilton was produced and testified that he
well knew Rayncock and that that individual was alb
sent in land, at the time specified by Wilson.
The next witness worthy Of notice is Timothy
Wheaton. He was called by permission after prose-
cuton rested, the Attorney General supposing that
there had been reservation in favor of this witness.
He deposes that about year before he had gone
from Whitby, Canada where he lived, to Niagara
was near the ferry-saw Mcleod coming up from the
water sde-and the witness remarked to him that the
sentines had hard time of it-that they then talked
Of the Navy Islanders, and about their number-that
Mcleod said they would have the Caroline there
again. and added that he the second or third man
who boarded her, and then person, stranger to
Witness interrupted the conversation by taking Nc
Leod of-that he, the Witness turned from The ferry,
recoectng he had not a pass and went back to the
own.
Gentlemen, you are carefully to examine this evil
1ence and decide according your conscientious
Vicon of the truth, it really is. If you believe this
evidence, notwithstanding objections to it, and
some deductions which are to be
nade-if you believe that it does, after all, present
% you amount of evidence which is sufficient to
call up the prisoner to answer, then you to take
INTO consideration the defence opened before you And
i is undeniable that In looking at this mass of evil
lence, there is much that appears questionable, and
much of it remains that is not powerfully attacked
and that does bear very hard the question of the
prisoners guilt. But passing from this, you then
look at the prisoners eide, because it is the right of
every put trial here to present his Witnesses
have them examined, and if he succeed in establishing
d defence, to have the full benefit Of it.
That Defence gentlemen, is what is called abb
1t is, in other words, that he had part lot no
sort of participation in this enterprise and this, after
the disposal of the first question already passed upon
is the only other ground of defence that exists. And
in my judgment degree of suspicion should attach
to it original defence, because it is, just said
the only defence that for the prisoner at the
bar. If he in truth upon that expedition, then
he is guilty, and SO you must pronounce him. But,
gentlemen, if he at that time five, or six
miles distant, if he had no participation in that en-
terprise then the same great principles Of justice re-
quire that you should pronounce him innocent.
The evidence sustaining this defence consists of the
dispositions of individuals avowedy participating in
the petition and secondly ofthe oral testimony sew
era individuals showing, or tending to show that Nc
Leod was during the execution of this enterprise at
a distant spot-n another town.
First, then, with regard to the evidence Of the COM
missions The prisoners counsel is right in telling
you that evidence taken in this way is and should be-
4