Burlington free press. [volume] (Burlington, Vt.) 1827-1865, 1841-10-15
The Defence.
The case for the defence was opened by MI
Spencer as follows -

The case for the defence was opened nv Mr.,
Spencer as follows -
Gentlemen of the Jury-I will endcavor TO
open this defence in the manner which has ius,
been suggested by his honor the Circuit Judge.
because it is precisely the way in which every
defence should be opened, and from viii Oh the
Jury can best appreciate the evidence to be
brought before them. need scarcely saw that
this is case of no ordinary Importance. 1t is
the first Of the kind that you have ever tried or.
in all probability, will again be called upon to
investigate A solemn duty has devolved upon
you, and have not the smallest doubt that it
will be fully and faithfully discharged
The defence which we intend TO make is two.
fold. and will place it before you in it's double
aspect thus early, in order that the Court NAV
be prepared to direct our conduct Ct the case as
it may think proper. In the first place, then, we
will inquire whether any murder has been
committed at all and secondly ifthat question
be answered in the affirmative, whether Alex
ander Mcleod was one of the murderers.
The first portion OF our defence we shall con.
duct with all difference to the opinion of the Su.
| preme Court, which the learned Attorney Gen
era referred to so fully in his opening. We
are no strangers to that opinion, nor to the ques-
| tons presented on the argument which drew
-
man opposite really supposes, as he said, that the
counsel OF the prisoner sustained rebuke when
| hat opinion was delivered, avail myself OF
| his early opportunity to say that the counsel
| for the prisoner have never felt the business OF
| that rebuke.
There are some things in that opinion which.
| when first heard them within this very circle,
tell upon my ear as very strange, but there is
| also very much of that opinion to which listen
| ed with great pleasure. That document is ably
| wrt'en-lt contains the evidences of great re
search and profound legal learning, and it NAV
| present the sound law Of the case. But wheth.
er 1t he the sound law of the case or not, and
whether the learned Judge who now presides
on THIS trial VIII so regard it, know not, but
fee bound to conduct this case on the broad
grounds OF what consider the true principle,
OF the law, as applicable to it,
We shall them in the first place, after few
more facts shall have been made TO appear in
evidence before you, insist that there can be
no such offence as that of murder proved a.
growing out of the destruction of the steamboat
Caroline. And here allow me to say, that il
the course OF my readng-limlted, | admit i
has been-and IN all my experience, neve
knew OF similar case. Ii is now for the frs
time that we see an individual acting under tho
authority, and by the order, of the Government
whose subject he was, put upon trial for obey
ing those orders This is, indeed, Remarkable,
occurrence, almost at the end of the first hal
of the 10Th century! As the counsel of Alex
ander Mcleod, then, shall have occasion t,
contend that there can be no such thing as tn,
crime of murder charged against any of the per
sons who formed the expedition sent to destro
the Caroline. And let me here add, that TN
question whether that act was justifable pro
ceedlng or not on the part the British provin
cal government Cannot be entertained by you