The Madisonian. [volume] (Washington City [D.C.]) 1837-1845, 1841-10-16
THE MADISONIAN .
CASE OF Mcleod.

for the defence made by MIR. Spencer which We an
mex will show the grounds which reliance for the
acquittal Of the prisoner rests
Gentlemen ofkhe Jury: IL will endeavor to open
this defence the manner which has Just been sug
gesed by his Honor The Circuit Judge, because it Is
pr ci,ely the way in which every defence should be
opened aud from which the Jury can best appreciate
the evidence to be brought before them need scarcely
say that this Is Case of ordinary Importance. Ii
Is the first OF the kind you have tried in all
probability will be again called on to investigate. A
solemn duty has devoIssd 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,
AMI will place before you in its doub aspect thus
early in order that the Court may be prepared to d.
rect our conduct of the il may think proper.
In the hrst place then, will inquire whether any
murder has been Committed at all; and secondly,
whether, II that question be answered in the airma
tive, whether Alexander Mcleod was of the
murdcTeTs.
The first portion of our defence we shall conduct
with all Difference TO the opinion of the Supreme Court
which the learned attorney general referred to fully
In his opening We are no strangers to that opin
lon, nor TO the questions presented on the argument
which drew forth that opinion and if the learned gen.
tienan opposite really supposes, he said that the
counsel of the prisoner su stained rebuke when that
opinion delivered avail myself of this early OPP
poItuny say that the counsel for the prisoner have
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 is, that fell
upon my ear as little strange but there is also very
much of that opinion to which listened with great
pleasure. That document is ably written--t con-
tans the evidences of great research and profound
legal learning, and 1t may present the sound law OF
the But whether il be the sound law of the
or not, an whether the learned judge who now PIE
sides this trial will regard it, know not but
feel bound conduct this case the broad grounds
of what consider the true principles OF The law, as
applicable to it. |
We shall then, in the first place. after few more
facts hal have been made to appear In evidence be-
fore you, insist that there be no such offence as
that Of murder proved growing out OF the destuc-
ton of the steamboat Caroline. And here allow me
to say, that in the whole course of my reading-limt
ed, admit, it has been, and in all my experience
| never knew Of similar 1t is now for the |
first time that individual acting under the |
authority and by the order of the government whose
subject be was, has been put on trial for obeyng those
orders. This is, indeed remarkable occurrence, |
almost at the end Of the first half of the 10Th century
AS the counsel of Alexander Mcleod, then, shall
have occasion to contend that there be such
thing murder charged against any of the persons
who formed the petition sent ~ destroy the Caro-
line. And let me here add, that the question whe-
ther that act Unsuitable proceeding not on the
part of the British provincial government cannot be
entertained by YOU
the party which made the attack upon the Caroline,
consisted of the Of seven boats, six of them
containing eight persons, one containing nine, and
which made up of British provincial soldiers then
duty Chippewa or British naval officers then
duty at Chippewa-that Col McNab ordered the ex-
padition-that he acted under the authority of Sir
Francis Bond Head, the Provincial Governor, who
directed them to seek out and destroy the Caroline,
which he then believed to be in the employment of the
party Navy Island who had there raised the stand
ard of revolt fortified their camp and opened the bat
teries on the Canadian shore. When this party was
thus clrcumstanced and al season of the year when
that boat came down for the express PURPOSES of be-
ing employed by the occupants of Navy Island, and
in their service that boat was from day to DAY engaged
The boat was then as liable to destruction at Schlos
If she had been moored at Navy Island far
respected individual responsibility Indeed it was
now proved that Schlosser the very rendezvous
of the party of the invaders of the Island Of those
who were continually carried over to the Island. We
shall CONTEND then, that the boat while at Schlosser,
there for hostile purposes if Navy Island
and that the British authorities were, therefore,
huch justified in destroying her there as if she had
beer rt the latter place, and ak every American
cit if he would have regarded the des ructon of
the boat at Navy Island "fence7
Might not the Island have been jus,lfably invaded,
and the persons taken prisoners and saug hered
without the per-on so invading it being chargeahe
with the crime of murder any other offence against
the laws whatever? Whether the Insurgents in the
Island were right wrong, is wholly immateral.-
Whether the British Government had been tyrannical
and had driven those people to desperation, is wholly
had seen fit to revolt and with he aid of American
citizens, had made OPP war in Canada, and whether
they were right or wrong, it was a war; aud all the
rights and imununhies that belonged to those engaged
in war, pertained to them. We will to YOU
that The Government OF the United States took this
view OF the that they took cognizancc OF this Of
fence, and demanded reparation from the Government
of Great Bri aiD-and that at later day the British
Government acknowledged the responsibility of that
act and declared that it done obedience to the
British ovincial Government, and justified it as a ne
cessary for the protection of the subjects of Great
Britain tn, n living in Canada. The Federal Govern
ment then, under the Constitution, had taken full
cognzance Of the whole matter, embracing not only
the invasion OF our territory, hut also the destruction
of the steamboat, the property of vt ciizens
and Inc taking away the lie Of another. All those
considerations were presented to the notice OF Great
Britain, and our Government, mindful Of the nations
rights, and ready To vndicate them, had dema ndet
1ull and entire satisfaction for the injury which ouI
Country had received. But the individual who form
ed part Of that public force OF Great Britain sIands
cused, as he always must from all the Consequences
OF bis action under those orders As an individual of
fender, he is not anenahle to any tribunal.
Passing from this, | will how take up another
branch nf the case and where, | am well persuaded
the intelligent judge who presides here and my sell
shall ave difference of opinion, whatever may be-
our respective views the other features of the
and this tenold more deeply interesting question
constitutional right-aDd that rs the point to whe
her Mcleod had any thing to do with the ira nsaction
or not. am willing, and intend to call your atten
ION more mnuteiy to the evidence sustaining that
ground Of defence than that pertaining to the other
position which we have assumed. Because that evi.
dence sustaining the latter is not in any degree sus-
ceptibe Of dispute Every word of evidence given on
the part of the prosecution has gone to establish our
case, and what is yet to will only Comprise what
has been shown already. But the point TO which |
call you now is that Alexander Mcleod had no more
to do with the destruction of the Caroline OF with the
killing of Dusfee, than either ofyou gentlemen OF the
jury. And speak with knowledge Of the facts, and
will satisfy you that what have said is fully and
literally true.
confess that am somewhat surprised by the re-
suit of the trial which we have seen. anticipated
much greater strength the part of the prosecution
will say to the Attorney General, if am honored
with his audience, will say 10 his associate, that am
onished at the feebeness Of their cause, conducted
as it has been by such array of talent. Withou,
making any extravagant pretensions to that sort Of