The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1841-10-14
CASE OF Mcleod.

CASE OF Mcleod.
The testimony for the prosecution was brought to
close on Wednesday evening. The opening speech
for the defence, made by Mr.. Spencer, which we an
mex will show the grounds on which reliance for the
acquittal Of the prisoner rests
Gentlemen ofthe Jury:-I will endeavor TO open
this defence in the which has just been sug
gesied by his Honor the Circuit Judge, because i Is
precisely the way 10 which every defence should DC
opened and which the Jury can best appreciate
the evidence TO be brought before them need scarcely
say that this is a of no ordinary Importance. II
is the first Of the kind you have ever tried, or In all
probability will be again called on to investigate
solemn duty has devolved upon you, and have not
the smallest doubt that will be fully and faithfully
discharged
The defence which we intend to make is fold
and will place before you in It's double aspect thus
early in order that the Court may be prepared to d
rect conduct of the as it may think proper
In the first place, then, will inquire whether any
murder has been committed at all and secondly
whether, if that question be answered IN the arhrma
tive whether Alexander Mcleod was one OF the
murderers
The first portion of defence we shall conduct
with all Difference the opinion of the Supreme Court,
which the learned attorney general referred TO 50 fny
in his opening We are no strangers to that oPin-
on nor to the questions presented on the argument
which drew forth that opinion and If the learned gen
teman opposite really supposes, as he said, that the
counsel Of the prisoner sustained rebuke when that
opinion delivered, avail myself OF this early OPP
portuny say that the counsel for the prisoner have
never felt the justice of that rebuke, and yet remains
TO be shown that that opinion administered any just
rebuke.
There are some things in that opinion which, when
first heard them within the very circle ~, that tell
upon my little strange but there is also very
much Of that opinion to which listened with great
pleasure. That document is ably written--it con-
tains the evidences Of great research and profound
legal learning, and it may present the sound law OF
the case But whether it be the sound law Of the
or not an whether the learned Judge who now pre-
sides on this trial will regard it, know not !; but
feel bound to conduct this on the broad grounds
of wi hat consider the true principles OF the law, as
applicable to it.
We shall then, in the first place, after few more
facts shall have been made appear in evidence be-
fore you, insist that there can be no such offence as
that Of murder proved growing out OF the destruc-
tinn of the steamboat Caroline. A nd here allow
10 say that in the whole course of my Teading-limt
ed, admit, ii has been, and in all my experience
| never knew of similar case. II is now tor the
first time that we see an individual acting under the
authority and by the order Of the government whose
subject he was has been put trial for obcying those
orders, This is indeed, q remarkable occurrence,
almost at the end of the first halt OF the 18th century
As the counsel of Alexander Mcleod, then shall
have occasion to contend that there can be no such
thing as murder charged against any of tie persons
who formed the expediion sent to destroy the Caro-
line. And let me here add that the question whe-
part OF the British provincial government cannot be
entertained by you.
The facts, gentlemen to lie adjuced will show that
the party which made the attack upon the Caroline,
consisted Of the crews of seven boats, SIX of them
containing eight persons one containing sane, and
which made up OF itlsh provincial soldiers the n
on duty at Chippewa British naval officers then on
duty at Chppewa-that Col. McNab ordered the ex-
pedition-that he acted under the authority of Sir
Francis Bond Head, the Provincial Governor, who
direc, ed them seek and destroy the Caroline,
which he then believed to be in the employment OF the
party on Navy island who had there raised the stand
ard of revolt fortified their camp and opened the bat
tories on the Canadian shore. When this party YVES
thus circupstanced and at season OF the year when
navigation by any other vessel was extremely perilous
tina. boat down for The express purposes OF be
ing employed by the occupants OF Navy Island, and
10 their service that boat from day day engaged
The boat then as liable to destruction at Schos
ser if she had been noorcd at Navy Island so far
pccted individual responsibility. Indeed, It was
now proved that Schlosser was the very rendezvous
OF the party Of the saders OF the Island or of those
who were continually carried over to the Island. W.
shall contend then, that the boat while at Schlosscr
there for hostile purposes as at Navy Island
and that the British authorities Were therefore al
much justified in destroying her there, If she ha,
been RI the latter place, and ask every American
cit zen If he would have regarded the destruction 0
the boat at Navy Island as an offence !
Might not the Island have been Jushaby Invaded
and the persons il taken prisoners and slaughtered
without the person 81 invading il being chargeab
with the crime Of murder any other offence agains
the laws whatever Whether the Insurgents In th
Island right wrong, Is wholly lmmateral-
Whether the British Government had been tyrannica
and had driven those people to desperation, Is who'll,
imuatcrlal. The Canadian subjects of Great Britain
had en- fit 10 revolt, and, with the aid of American
ci,izens, had made open in Canada and whehe
they were right wrong, II was war, and all tn
rights and immunles that belonged to those engage,
in war, pertained TO them. We will show to yo
that the Government ot the United States took thl
view al the case that they took cognzancc OF this OF
fence and demanded reparatlon from The Governnen
of Great Bii,ain-and that at later day The Brius
Government acknow lodged the responsibility OF tina
act and declared that it done in obedience TO tn
Brush Provincial Government and justified IT as ne
essary act for the protection of the subjects OF Grea
Britain then living in Canada. The Federal Govern
ment then under the Constitution, had taken ful
counizance of the whole matter, embracing not on.
the invasion Of our territory hut also the destruction
Of the steamboat the property OF one OF our c'zen'
and the taking away the life Of another. All thos
con- deraons were presented to the notice Of Grea
Britain aud our Government, mindful OF the nation
rights aud ready to vndlcete them, had demanded
tul and entire satisfaction for the injury which on
country had received But the individual who form
ed part OF that public force of Great Britain sands ex
cused as he always mnst from all the c nsequence
of his action under those orders As individual OF
fender he il not alnennhle to any tribunal.
Passing from this, | will take up anohe
branch OF The case, and where | am well persuaded
the intelligent Judge who prrsdes here and myse
shall ave no difference Of opinion whatever may
our resuecttve views on the other features of the
and hi, teniod more deeply interesting question
constitutional ruht--ard that is the point 10 whe
her Mcleod had any thing to do with the transacto