the witness who produced it, nothing appeared to have passed to fix it upon him. But the name upon the card was "Harvey Tuckett ;" and it did not follow of necessity that this should mean the man named in the indictment, any more than John Thomas or Peter Nokes, and by consequence there was no proof that such a man was shot at. Moreover, none of the witnesses who saw the duel had spoken to the person of Capt. Douglas. The only witness who recognised him was the police inspector, who saw him in company with the Earl of Cardigan threequarters of an hour after the transaction, a point which he should have submitted to the jury, had not the preliminary point failed; namely, that such a person as that named in the indictment had been shot at. The indictment, therefore, must fall to the ground, and the prisoner was entitled to an acquittal.

The jury accordingly returned a verdict of Not Guilty.

UTICA, U.S.

TRIAL OF ALEXANDER M'LEOD FOR MURDER.

The trial of Alexander M'Leod at Utica, in the State of New York, on a charge of murder, fraught with consequences affect ing the peace of two great nations, and perhaps involving also that of Europe, raising important questions of the law of nations, and presenting some interesting facts relative to the state of feeling, moral and political, in the United States, and involving the life of a British officer, will be properly included under the head of State Trials, although it might seem, at first sight, scarcely to belong to a

portion of this work usually appropriated to the legal transactions of our own country.

In our Historical portion will be found a recapitulation of the events attending the destruction of the steam-boat Caroline, and the death of Amos Durfee; the seizure of Mr. M'Leod and the correspondence between the official representatives of the two countries; and the state of feeling of the respective nations.

The trial, which commenced at Utica on the 4th October 1841, continued six days. Our limits will not permit that we should give even an abstract of the addresses of the counsel on either part, or of the evidence brought forward. Fortunately, the ability of the learned judge who presided, and the admitted fulness and impartiality of his summing-up, render the task unnecessary. Upon examination of the evidence, there seems room but for one remarkthat in the cross-examination of the witnesses Frederick Emmons and James Field, the possibility seemed to be inferred that the deshot from the store near the wharf, ceased might have been killed by a and on the spot on which his body was found, and consequently not on board the Caroline, nor by any of the British subjects engaged in the expedition. This point, however, does not seem to have been insisted upon by the counsel for the defence, nor touched upon by the learned judge.

The Court met at nine o'clock, and notwithstanding the excitement said to prevail, the space set aside for the accommodation of the public was by no means crowded. The prisoner was brought in in the custody of the sheriff, and took his seat by the side of his

counsel, Messrs. Spencer, Bradley, and Gardner. The jury were empannelled with few challenges, an application to set aside one of the jury until the panel should be exhausted having been overruled, the law admitting only an absolute challenge. The case was opened by Mr. Willis Hall, the AttorneyGeneral. The trial presented no other remarkable legal feature.

The following is the charge delivered by Judge Gridley to the jury :

Gentlemen of the Jury,

I congratulate you on your at length arriving at the present stage of this long-protracted trial. After your patience having been drawn upon for six days in listening to the trial, and a day and a half in listening to the argument of counsel, you have at last arrived at that period when you are called on to discharge the last and deeply solemn duty which devolves upon you. I congratulate you also upon the auspicious circumstances under which you approach the performance of this duty. We know, it is true, that a deep and pervading interest is felt in this case through out the entire land. We are also aware that a portion of the public press has, from the commencement of this controversy, teemed with inflammatory and passionate articles. We have likewise heard of popular commotions in various parts of the country, and in particular in the county where the indictment against the prisoner was found. Still, though these disturbing influences may prevail elsewhere, we can at least say that they have not entered this solemn temple of justice. If the waves of excited popular feeling have swept along in other quarters, they have

not reached the portals of this building, consecrated as it is to the faithful administration of that justice to which the people and the prisoner alike appeal. During the proceedings here, it may also be remarked, we have seen attentive auditors in the persons of loyal subjects of Great Britain, who not long since were in arms in defence of their soil; and on the other hand, we had the presence of more than one distinguished actor in the scenes of blood and suffering connected with the recent abortive attempt at revolution in the Canadian provinces. Yet although these individuals, as well as others who have been present, must have been deeply interested auditors and spectators of what has occurred, not a single murmur has been heard— not a single ebullition of excited feeling has escaped. All has been quietness and good order, and a signal proof has been given that here is a spot where justice can be purely administered, and that here, if nowhere else, the decision of an upright, intelligent, and honest jury, will be acknowledged sovereign and supreme. It is under these auspicious circumstances that I invite your attention, gentlemen, to the questions connected with this great and important case. Allow me to offer a simple additional passing remark, and it is this-in order to appreciate properly the questions on which you are to pronounce your judgment, it will be necessary that you should keep your minds entirely unembarrassed by the consideration of other matters which have in reality nothing whatever to do with the merits of the case. The counsel on one side and the other, as it was their duty and right, have presented such arguments, and discussed such topics,

as they deemed likely to serve the interests of the parties whom they represent. But the tribunal which tries has also duties to perform, altogether different from those incumbent on the advocates intrusted with the interests of those who are placed at its bar. The case of this prisoner, gentlemen, I may simply say, is to be tried like that of any other person indicted for the same offence. The first question is, has any murder been committed? And the second question is, is the prisoner at the bar guilty of that murder? On the first question, gentlemen, the Supreme Court of this State, as you have already learned during the progress of the trial, have decided. Their authority is binding on you and me. We are sitting here to dispense justice in the Circuit Court, and must be governed by the decision of that superior tribunal which has sent down this issue to be tried here. That is no longer an open question, but an adjudicated one, and with it you have no concern. The circumstances out of which the indictment originated, are briefly these:-In December 1837, a body of Canadian refugees and American citizens occupied Navy Island, fortified themselves there, and opened a cannonade upon the Canadian main shore, where some 2,500 or 3,000 men were assembled to protect their territory. Aid was afforded to these occupants of Navy Island by certain individuals in Buffalo; and one William Wells, the owner of the steam-boat Caroline, for the purpose of promoting his own interests, as he swears before you, had the steam-boat cut out from the ice where it lay in Buffalo Creek, and on the morning of the 29th December, the fatal day, that boat made her first trip

from Buffalo to Schlosser, touching at Navy Island; and that after that, on the same day, she made two trips to Navy Island from Schlosser; that it was instrumental in conveying armed men, arms, provisions, and one piece of ordnance, to Navy Island. Further than this, it does not appear that the Caroline was instrumental in promoting the interests of the occupants of Navy Island. Now, the colonial association in Canada saw fit to regard this boat as a portion of the armament of the insurgents, and resolved to destroy her. Sir Allan M'Nab, the commander of the provincial forces at Chippewa, ordered volunteers to embark in boats, of which five reached the Caroline, and from them she was boarded, whilst her peaceful occupants were asleep in her berths; and with cutlasses, boarding pikes, and fire-arms, the attacking party chased the persons on board, wounding some, killing one, and whether others experienced the same fate we know not, and then, having set fire to the boat, the attacking party sent her over the Falls. This is a brief history of the transaction, so far as it is necessary for you to consider it for the purpose of understanding and disposing of this case. The acts I have described are held by the prisoner's counsel to have been excused in the individual performing them for the reasons-first, because those acts were authorized; and, secondly, because done in selfdefence; and again, because the whole transaction has already become the subject of recognition between the two Governments, so as to deprive this Court of jurisdiction over the offence. arguments have been laid before the Supreme Court, and that Court,

These

after great research and deliberate consideration, pronounced that this act of the killing of Durfee, although performed in the prosecution of an enterprise like that I have already described, was murder; and it follows, then, gentlemen, that all who were engaged in it are guilty of the same of fence; and it is not necessary that the arm of M'Leod should have struck the fatal blow to render him guilty. Enough that he was engaged with others in that enterprise. This question, then, is to be excluded from your consideration. It has, it is true, been dwelt on by counsel on both sides in their opening addresses, and during the progress of the trial. I refer to it, however, to inform you that it has been already adjudicated on and is set at rest. Then comes the question, the important question on which you are to pass-is Alexander M'Leod guilty of that murder? The counsel for the people have presented many witnesses before you, the tendency of whose testimony has been to show that the prisoner is guilty; and in order, gentlemen, that you may understand and appreciate this testimony, I shall briefly place it in review before you. I shall divide it into two classes-the first branch embracing the direct and circumstantial evidence other than that arising from confessions connecting the prisoner with this charge-the second class of evidence will consist entirely of confessions. The first witness, gentlemen, who has testified before you, is Gilman Appleby. He is the only witness who was on board the boat at the time of the attack. He was the captain of the boat-he slept in the gentlemen's cabin-he was awoke a little before midnight, as

he thinks, by information that there were boats approaching; he rose, and, partially dressed, made his way up the stairs, till he found his further progress arrested; he retreated, but again returned, and had opened the door about a foot, when it was violently pushed open by some one outside, who then made a plunge at him with a sword, which glanced along two of his vest buttons and struck against the metal button of his pantaloons; he was considerably excited, but in that momentary glance he saw the features of the man thus attacking him, and his impression then was that the individual was Alexander M'Leod ; but, with all commendable prudence and caution-for which I honour him—this witness says that, amid the agitation of the moment, and in that hasty glance which passed in the twinkling of an eye, he cannot say that it was M'Leod; he had once before seen the prisoner at Buffalo, and it struck him at the time that his appearance was similar to that of the individual who thrust at him, but it was only one hurried glance, and he immediately replied to the question of counsel, when on the stand here, that he could not say that it was Alexander M'Leod. The next witness is Saml. Drown. He resided at Chippewa, and was engaged in tending bar for one Smith, who kept a tavern there, and he says that he went up on the evening of this transaction to what was called the "cut," and up the Niagara river; that he was at the entrance of this "cut ;" that he was at the beacon light, saw the boats passing into the "cut," and then he thinks he recognized M'Leod amongst the party embarking in the boats; it was dark;

but the witness expressed the certainty of his belief that he then and there saw the prisoner. He says, he went from there to Davis's tavern, where a portion of these persons came, and there, by a light which shone from within the bar room, or by a light out on the "stoop," although he cannot remember any light hanging out there, he professes to have seen then again Alexander M'Leod. He then says, that next morning, gentlemen, between daylight and sunrise, he heard some of the men in the tavern talking of M'Leod's being wounded, and was over on the opposite "stoop ;" the witness looked across, he said, and then thought he again recognized M'Leod. He says he went over to see whether M'Leod was wounded. He saw no one apparently wounded, and did not see McLeod. He was then inquired of in relation to the degree of certainty with which he could say that the man whom he saw was M'Leod, and he said in reply, that "He saw a man whom he called M'Leod." Another question was put to him, and he then said, "I mean that I am as sure it was M'Leod as that he now sits before me." This is, gentlemen, his testimony. He submitted to a long cross-examination, and how far it went to shake your confidence in his statements, it is your province, gentlemen, to decide. There is, however, one consideration which I will submit to you; it is thisthat when you are to judge of the credit to be attached to the testimony of a witness, it is right and proper that you should observe his manner on the stand, the degree of intelligence which he exhibits, the amount of power of observation and accuracy of recollection, and

having done so, you are to decide whether his answers satisfy you that he is honest, and in the whole, whether his statements are of such a character, when taken all in all, that you can rely upon them; and if not sufficient to satisfy you altogether, you must decide in how far you should allow what degree of confidence you must repose in his testimony, and that you will bestow on it, and no more. It is argued by the prisoner's counsel that the degree of darkness which prevailed there, and as testified to, was such as made it exceedingly rash for this witness to pronounce so confidently that he was able to recognize M'Leod as well there as here to day. It is also argued that he stands before you impeached as to his character for truth and veracity, and to sustain this impeachment, witnesses have been called and have appeared before you. One Mr. Bates has testified that he lives near Canandaigua, near the residence of this witness, and he says, that he heard him speaking on this subject, I think at some former period when subpoenaed; and among other things he said he knew nothing in reference to this matter that could do M'Leod any harm or any good. The statement which he makes of what he said is somewhat qualified. It is remarked, on the other hand, that witnesses who are subpoenaed frequently make careless observations, and that this person being a poor man, might wish to avoid attendance on this trial. true that persons often make careless remarks, and had Drown made such a statement in presence of any one who could have excused him from attending here, then the plea of counsel would have been entitled to greater regard from you.

This is very