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 I LIBRARY OF CONGRESS, % 
 
 F\032. 
 
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LETTER 
 
 • TO HER MAJESTY 
 
 THE BRITISH QUEEN 
 
 WITH LETTERS TO 
 
 LORD DURHAM, LORD GLENELG AND SIR 
 GEORGE ARTHUR: 
 
 TO WHICH IS ADDJGD AN APPENDIX EMBRACING A 
 
 REPORT OF THE TESTIMONY TAKEN ON THE 
 
 TRIAL OF THE WRITER BY A COURT 
 
 MARTIAL, AT TORONTO IN 
 
 UPPER CANADA. 
 
 7^ 
 
 BY TH: JEFFERSON SUTHERLAND. 
 
 ALBANY :(Vli. 
 
 PRINTED BY C. VAN BENTHUYS 
 184L 
 
R 
 
 \o3^ 
 
 .S<\t 
 
 Entered according to act of Congress, in the year of our Lord 
 one thousand eight hundred and forty-one, by Th: Jefferson 
 Sutherland, in the Clerk's Office of the District Court of the 
 Southern District of New-York. 
 
 ^0^^'''' 
 
ADVERTISEMENT. 
 
 Or those who were implicated in the late revolutionary movemeiUa 
 in the Canadas, the writer and publisher of this volume wast the first put 
 upon trial, with the intention on the part of the British government that 
 he should have been the first to be executed. Why he escaped will be 
 understood after a perusal of these pages. 
 
 There are now about 150 citizens of the United States, who were 
 captured by the military forces of Great Britain in the Canadas during 
 the late revolutionary movements, still held by that government as pri- 
 sioners of state. They have been sent to Van Dieman's Land, one of the 
 British penal colonies, where they have been reduced to the condition 
 of common felons; and thrust into a convict station with thi«ves, robbers, 
 burglars and others of the vilest of the overflowings of the prisons of the 
 the British empire — without sufficient food or necessary clothing they are 
 being compelled to labor for unreasonable hours at the most servile em- 
 ployment ; and made subject to the lash and other severities, unusual to 
 be inflicted by civilized people. Those men, having been induced to be- 
 lieve that a hearty struggle was about to be made by the Canadians for 
 liberty, with a generous motive, volunteered their services to aid them 
 in their efforts; and so doing became prisoners. By the publication of 
 this volume, it is hoped to bring the attention of our own government, 
 as well as that of Great Britain, to the condition of those, our unfortunate 
 fellow-citizens ; and that the British government may then be induced 
 to set them at liberty. Should it prove one of the means of bringing 
 about the desired result, the sole object of the publication will have been 
 attained. 
 
 Aside from the matters which bear upon the object expressed, this 
 volume will be found to contain expositions of legal questions, which give 
 it value, as a book of reference; particularly, on trials by Court Martial. 
 
DEDICATION. 
 
 To the Attorneys and Counsellors at Law 
 Of the United States of America, 
 
 With the highest consideration. 
 
 This work is respectfully dedicated. 
 
 Gentlemen — In assuming to dedicate this volume of 
 LETTERS to SO learned and patriotic a body as is consti- 
 tuted by the members of the profession of the law in the 
 United States, I have simply to offer as an apology the 
 motive with which the publication is made. 
 
 The letter to the British Queen has been written in 
 behalf of the American citizens who are now detained as 
 prisoners by the British government, charged with having 
 participated in the late revolutionary movements in the 
 Canadas. Some of these men, according to the most re- 
 cent accounts, have been sent off in chains in a convict 
 ship for Van Dieman's Land ; others have been placed in 
 the hulks in England — and a few have been disposed of 
 in the penitentiary at Kingston in Upper Canada. 
 
 The other letters comprising this volume are copies of 
 communications which were addressed by me, during my 
 confinement in the citadel of Quebec, to the functionaries 
 of Her Majesty's government. In them I have reviewed 
 the circumstances of my own capture, trial and imprison- 
 ment ; and I have endeavored to show that all the pro'^ 
 ceedings of the British government towards me were, in 
 the extreme, illegal and unjust. 
 
 These papers, together, contain matters of justification 
 for all the American citizens who have taken a part in the 
 
 1* 
 
6 
 
 DEDICATION. 
 
 late struggles by the Canadians for independence ; and 
 they are published with a view to furnish arguments in 
 behalf of those Americans whose fortune it has been to 
 become prisoners in the hands of the British government ; 
 and who, (perhaps, merely for the want of ability to re- 
 present their case,) have not yet, like myself, been able 
 to obtain their liberation. 
 
 I am informed by a gentleman residing in London, who 
 is highly esteemed as a man of honor and probity — and 
 who possesses some political reputation in England, that 
 if I should lay before the public these letters which have 
 been the instruments of my own release, they would be 
 made to have much influence with the British govern- 
 ment to procure the release of the American citizens who 
 are still detained in prison — as my case was a very near 
 parallel to theirs ; with the difference, that I was one of 
 the principal and most active leaders — and subject to no 
 othar influence than my own principles ; while they, who 
 are now in prison, are young men, without influence — 
 the sons of the farmers and mechanics of our frontier 
 counties, who were persuaded by others to embark in the 
 late military movements of the Canadian revolutionists. 
 
 In the early struggle of our forefathers, the lawyers of 
 our country were found front and foremost in the cause 
 of political freedom. The charter of American liberty, 
 the Declaration of Independence, was the work of Thomas 
 Jefferson, a lawyer; and while John Adams, a lawyer, 
 proclaimed liberty at the north, in deep and hallowed 
 tones — Patrick Henry, a lawyer, reechoed the sacred 
 principle at the south, with the cry of " Liberty or death!" 
 Shall I not be safe, then, in supposing the lawyers, of the 
 present day in our country, no less the advocates of politi- 
 cal liberty — and as firm friends of the oppressed? and 
 
DEDICATION. 7 
 
 having shown, (as I believe I have in this volume,) that 
 the further detention of the American citizens now in the 
 custody of the British government is no longer called for 
 by a regard for the safety of that government, or the peace 
 and quiet of the Canadas — and that the course being pur- 
 sued by that government, towards those individuals, can- 
 not be justified by the rules of civilization, or upon any 
 other reasonable pretext — Gentlemen, I have ventured 
 to hope that your actions will not be quieted, nor your 
 voices stilled until our unfortunate countrymen shall be 
 set at liberty and permitted again to return to their homes. 
 
 TH: J. SUTHERLAND. 
 New York, January 21, 1841. 
 
TO HER BRITTANIC MAJESTY 
 
 VICTORIA I. 
 
 Madam — By your Majesty, the reception of a commu- 
 nication from an humble citizen of a foreign republic, may 
 be held an extraordinary matter ; and perhaps, be regard- 
 ed as strange in its course ; but the position in which I 
 have lately been placed, in relation to your Majesty's 
 government, by a course of circumstances peculiar to 
 themselves, fully justify, as I believe, the liberty I am 
 about to take of addressing your Majesty, as the chief 
 executive of the British nation. 
 
 Your Majesty will be informed that I am an ardent ad- 
 mirer of democratic institutions and an enthusiastic advo- 
 cate of political freedom ; and that believing as I did, that 
 the people of the provinces of the Canadas %vere about to 
 make a hearty struggle for liberty ; and entertaining the 
 desire to obtain the small share of applause which might 
 chance to accrue to one of the humble agents in the esta- 
 blishment of another independent republic on the conti- 
 nent of America, in the early part of the month of De- 
 cember, 1S37, I joined myself, as a military officer, with 
 the inhabitants forming a revolutionary party in the pro- 
 vince of Upper Canada, who were then making an effort 
 to subvert the authority of your Majesty's government in 
 that province — to drive their masters, who were your Ma- 
 jesty's agents, from the soil — and to establish a republican 
 form of government in the stead of the colonial system 
 maintained therein by your Majesty. That after I had 
 been for some short time engaged in the revolutionary 
 movements of Upper Canada, I withdrew from the cause 
 
10 LETTER TO THE BRITISH QtrEEN. - 
 
 of the revolutionists, having become satisfied that nothing, 
 at the time, could be moved in behalf of their undertaking 
 with a promise of success — and doubting that any thing 
 could be effected, with such means as we possessed, in a 
 manner, as I deemed, honorable or creditable to myself 
 as a commander ; and that after having so withdrawn 
 from the cause of the Canadian revolutionists — and when 
 I was in no manner connected with any of their move- 
 ments, or affairs — and when I was peaceably pursuing. i^y 
 own private business, within the United States^ at a dis- 
 tance of not less than seven miles within our lines, I was 
 come upon and kidnapped by an armed party of your Ma- 
 jesty's officers and soldiers who had crossed our lines for 
 the purpose of my capture ; and by them carried off into 
 the province of Upper Canada ; and there, by an order of 
 your Majesty's Lieutenant Governor, Sir F. B. Head, I 
 was tried by a court martial, on a charge of having joined 
 with and participated in the movements of the revolution- 
 ists of that province — was threatened with immediate ex- 
 ecution, tortured with suspense for a long time ; and then, 
 had passed upon me a sentence " to be transported, as a 
 felon, to one of your Majesty's islands for life " — when, 
 by the laws of the British nation, upon the proceedings 
 before the court martial, I was clearly entitled to an ac- 
 quittal. That the members of the court martial, by whom 
 I was tried, took their seats with predeterminations to 
 find me guilty at all hazards ; which they did — and in 
 violation of every principle of justice and of law, as it will 
 appear from an examination of a letter addressed by 
 me, during my imprisonment in the Canadas, to Lord 
 Durham, then your Majesty's High Commissioner, &c., a 
 copy of which is hereunto annexed, marked A ; and while 
 I was debarred from all opportunity to comply with an 
 
LETTER TO THE BRITISH QUEEN. 1] 
 
 extremely unjust demand, as it will appear from the ex- 
 amination of a LETTER addressed by me to Sir George 
 Arthur, your Majesty's Lieutenant Governor of Upper 
 Canada, a copy of which is hereunto annexed, marked B 
 — and that although it was plain to all those acquainted 
 with British institutions, of the commonest understanding, 
 that I was illegally detained, as it will appear from an 
 examination of a letter addressed by me to Lord Glenelg, 
 atopy of which is hereunto annexed, marked C, the offi- 
 cers of your Majesty's government still kept me, under 
 the severest condition of imprisonment, for more than a 
 year. 
 
 I do not, however, address your Majesty on this occa- 
 sion, for the purpose of preferring any complaints for the 
 treatment which I have, myself, received at the hands of 
 your Majesty's government — and which I deem to have 
 been unwarrantable. Such is not my purpose. 
 
 But, I would suggest to your Majesty, that during those 
 political commotions in Upper Canada, in which I have 
 already set forth, that I was myself engaged, many indi- 
 viduals, inhabitants of that province, (as also of the pro- 
 vince of Lower Canada,) who had been variously honored 
 >vith political preferments by the people of those pror 
 vinces, came into the frontiers of the United States — and 
 there publicly alleged various grievances against your 
 Majesty's colonial government maintained in the provinces 
 of the Canadas — and solicited aid and assistance from our 
 people to enable them to redress their alleged grievances 
 by the establishment of a government independent of your 
 Majesty ; and that at that time, the cause of the Canadian 
 revolutionists was espoused by a vast majority of the peo- 
 ple of our whole frontier — and public meetings in their 
 behalf were held throughout the states which border upon 
 
12 LETTEE TO THE BRITISH QUEEN. 
 
 the Canadas — and were numerously attended. That at 
 those meetings it was urged by the most honorable and 
 most exalted people of our country, that to embark in 
 those revolutionary movements — and to give person^ aid 
 to the people of the Canadas, who were then struggling 
 to establish an independent republican form of govern- 
 ment, was both commendable and praiseworthy ; and a 
 large number of American citizens, (as well as myself,) 
 were soon found embarked in the revolutionary move- 
 ments of the Canadas then being carried on — a portion 
 of whom were persons without political influence, either 
 in the United States or the Canadas — and were in no 
 wise capacitated to hold in any military body of men any 
 other rank or grade than that of common soldiers(l.) — yet 
 many of this inferior class, (as well as some others,) who 
 have been captured by your Majesty's military forces, are 
 now still detained, by your Majesty's government, in the 
 condition of imprisonment usually bestowed only upon the 
 worst class of common felons. According to my informa- 
 tion, there are now from sixty to an hundred American 
 citizens, of the class I have mentioned, thus detained by 
 your Majesty's government. They are principally from 
 the sons of the farmers and mechanics of our frontier 
 counties, who have been persuaded to embark in the af- 
 fair by others. By individuals of our country to whom 
 those men have been habituated to look up to for a decla- 
 ration of what was just and proper in a public point of 
 view, they were recommended and even urged, to join 
 the standard of the Canadian revolutionists — and having 
 done so, by the fortunes which have befallen them, they 
 
 (1.) All those American citizens who became prisoners to the British go- 
 vernment of a higher grade, have been executed, or they have escaped 
 through the irregiSarity of the proceedings against them, or from the loop- 
 holes of their prison 
 
LETTER TO THE BRITISH QUEEN. 13 
 
 have become prisoners — and are now enduring the seve- 
 rities of a dungeon, while their more responsible as well 
 as more fortunate fellow citizens, by whom they were in- 
 duced to embark in the undertaking which has placed 
 them in their present condition, are now enjoying their 
 wonted freedom and comforts of life ; and I would then 
 submit to your Majesty, if the further detention of those 
 American citizens who are now prisoners in the hands of 
 your Majesty's government, charged with having been 
 concerned in the late revolutionary movements of the Ca- 
 nadas, be not in violation of that liberal policy which is 
 provided by the modern rules of civilization — and if the 
 continuance of those persons in the condition of common 
 felons, as they are now placed, is not calculated to bring 
 us back to the usages of the savage people of a darker 
 age, by the establishment of a spirit of retaliation — and 
 thereby laying the foundations for wholesale murder and 
 an exterminating warfare, to be acted upon at some fu- 
 ture day? 
 
 Your Majesty wall understand that neither myself, 
 those who are now prisoners, nor any others of the inha- 
 bitants of the United States had any part in or connexion 
 with, the political matters and occurrences which preceded 
 the revolutionary movements in the Canadas of 1837 and 
 1838 — and that we did not interfere until we beheld a 
 civil commotion began and in full operation in those pro- 
 vinces — and our interferance and our services had been 
 asked for by men on whom had been bestowed the high- 
 est honors at the disposition of the inhabitants of those 
 provinces. Nor did we connect ourselves with the revo- 
 lutionary movements in those provinces until we had seen 
 that your Majesty's government had failed there to give 
 security to life and property, (the only legitimate purposes 
 
 2 
 
14 LETTER TO THE BRITISH QUEEN. 
 
 of government;) and that robbery, arson and murder were 
 perpetrated with boldness and impunity in every section 
 of the country ; nor until we had seen thousands of the 
 most worthy, honorable and respected inhabitants of those 
 provinces, seized without proof of crime — and upon accu- 
 sations, evidently false an<l only made by the most arrant 
 vagabonds, thrust into prison — their homes robbed and 
 their wives and children driven off from their possessions 
 and thrown upon our borders, appealing to our sympathies 
 for the bread of existence; nor until we had seen a large 
 foreign army landed upon their shores and marshalled 
 through their territories, not to defend them from the at- 
 tacks of foreign enemies, but to subject the people to 
 political slavery. Then, with this picture before our eyes, 
 when we were appealed to for assistance, was it not to be 
 expected that we should be moved by that appeal ? 
 
 It is notorious that in our course we had the counte- 
 nance of some of the best men in America — and that we 
 were applauded by a large portion of our fellow citizens ; 
 and your Majesty may have known that there has been 
 placed upon the banks of the Hudson, a monument to the 
 memory of Thadeus Kosciusko — and that our citizens in 
 1824 raised the triumphal arch for Lafayette. Were not 
 those things done as rewards for similar acts as these of 
 mine ; and of the other American citizens whom your Ma- 
 jesty's government now have incarcerated in its dun- 
 geons ? That they wore so there can be no doubt ; and is that 
 not in effect, as much as to say to the young and gallant 
 of our country — " Go and do likewise and be alike honor- 
 ed ?" So we received it — and if we have sinned, it is no 
 more our fault than that of the whole American people. 
 
 We did no more than we had seen repeatedly perform- 
 .ed by American citizens in aid of the revolutionists of 
 
LETTER TO THE BRITISH QUEEN. 15 
 
 the provinces of other countries ; and we had seen British 
 subjeots giving- the same aid to the revolutionists of the 
 Spanish colonies of South America, which we proposed to 
 give to the Canadians. We had seen British subjects 
 doing more to aid a revolution in Greece than we had of- 
 fered to do for the Canadians. We had seen British sub- 
 jects effecting more in carrying out a revolution in Portu- 
 gal than we had aimed to do for the Canadians ; and all 
 these things were done while there were treaties of peace 
 and amity existing between Great Britain and the govern- 
 ments of all those countries I have mentioned ; and the 
 only interferance by the British government with the pro- 
 ceedings of British subjects, in their attempts to give aid 
 to revolutionary movements in other countries^ I find re- 
 corded in the annals of that country, occurred in 1819. 
 An individual bearing the name and title of Sir Gregor 
 McGregor, who had received a commission as a general 
 in the army of one of the revolted Spanis-h provinces of 
 South America, purchased a number of ships in England 
 for the South Americans — and engaged of British sub- 
 jects, officers and soldiers, amounting to a considerable 
 force ; and having embarked them on board his ships, 
 with a quantity of arms, military stores and camp attirail 
 and dropped down to the Downs, (so as to be entirely out 
 of the reach of the government, as soon as it might be for 
 his safety or interest,) a bill was introduced into the Bri- 
 tish parliament to prevent enlistments in England for 
 foreign service. In the debate on this bill. Sir James 
 Mcintosh, a distinguished statesman and member of the 
 commons of Great Britain, made a, statement which is so 
 full of historical information, that I deem it essential to 
 my purpose to recite it for your Majesty's consideration. 
 H<? said — 
 
16 LETTER TO THE BRITISH QUEEN. 
 
 " The historieal records of England affords innumera- 
 ble instances of British troops serving- under foreign belli- 
 gerents, without subjecting themselves to any penalty in 
 consequence. A Catholic regiment served in the Spanish 
 service in Flanders under Lord Brudenel of Wardour, a 
 nobleman distinguished among the first of his contempo- 
 raries ; and a regiment of Scottish catholics, commanded 
 by the Earl of Home, entered the service of the King of 
 France. In neither instance, however, was any breach 
 of neutrality supposed to have taken place. But perhaps 
 it might be more agreeable to the taste of the right hono- 
 rable gentleman opposite, if he cited S^danish examples to 
 justify the proceedings against which the present bill was 
 brought in. Not only was there the authority of facts 
 and historical experience against the principle of the pro- 
 posed measure, but there was that of the writers of the 
 laws of nations, particularly one of the most intelligent of 
 those writers, the celebrated Bynkershook, who was pre- 
 sident of the Courts of Holland, On the question, whe- 
 ther it be a breach of neutrality to allow a friendly belli- 
 gerent to levy troops in your territory ? he answers in the 
 negative. What would have been the cheers of the gen- 
 tleman opposite had any member on his side of the house 
 ventured upon asserting an opinion similar to that expres- 
 sed by this grave authority ? In the war of the Bishop 
 of Munster against Holland, in 1666, the States General 
 complained to the governor of the Spanish Netherlands, 
 that he permitted troops for the service of the Bishop to 
 be levied within his territories. What was the governor's 
 reply"? That the Spanish territories were equally open 
 to the States General as to the Bishop for the purpose in 
 question; for although the latter was his friend, he would 
 act with justice towards both. But this agreeably to the 
 
LETTER TO THE BRITISH QUEEN. 17 
 
 modern interpretation of the law of nations, would be con- 
 sidered a breach of neutrality. It was clear, however, 
 that the Spanish governor thought otherwise. A breach 
 of law, forsooth ! What would the scrupulous politicians 
 of the present time say, when he mentioned the name of 
 one of the greatest princes and most valiant leaders that 
 Europe had ever beheld — a man whose sword had vindi- 
 cated the cause of civil and religious liberty against the 
 combined efforts of tyrannical power — what he asked, 
 would they say, when he referred them to the instance of 
 Gustavus Adolphus, who had in his pay, not a small por- 
 tion of British troops, not a little smuggled army, headed 
 by a few half pay officers, on board a transport or two in 
 the Downs, but a band of six thousand men raised in 
 Scotland — and by whose cooperation, with a handful of 
 other troops, he was enabled to traverse a great part of 
 Europe, to vanquish the hosts that opposed him — and to 
 burst the galling fetters of Germany ? and who was the 
 chief by whom those six thousand British troops were led ? 
 Not an adventurer, not a Sir Gregor McGregor, of whom 
 he knew little and for whom he certainly cared less — but 
 the Marquis of Hamilton, a man of the first distinction 
 and consequence in his own country, the personal friend 
 of the king, from whom, however, he had no license. At 
 that time the Spanish and imperial ambassadors were re- 
 sident in London, but neither of them presumed to remon- 
 strate or make a demand like that which had been made 
 in the present day. It was expressly laid down by Vat- 
 tel, that a nation did not commit a breach of neutrality by 
 allowing its subjects to enter into the service of one belli- 
 gerent and refusing the same permission wnth respect to 
 another. There ^A'as one case more, which occurred in 
 the reign of James the First, to which he could not help 
 
 2* 
 
IS LETTER TO THE BRITISH QUEEN. 
 
 adverting. At that period a great body of English troops, 
 commanded by one of the most gallant captains of his 
 day, Sir Horace Vere, who served his time against the 
 Spaniards and received pay from a foreign power. Yet 
 Gondomar, the Spanish ambassador, whom King James 
 was endeavoring, by the most servile and abject submis- 
 sion to conciliate, who might almost be termed the vice- 
 roy of Spain in this country, who' had sufficient influence 
 to cause the murder of that most distinguished individual, 
 the ornament of his native country and of Europe, who 
 united in himself more kinds of glory than had perhaps 
 ever been combined in an individual, that intrepid soldier, 
 that skilful mariner, that historian, that poet, that philoso- 
 pher, that statesman. Sir Walter Ealeigh — Gondomar, 
 whose power protected him from the punishment he de- 
 served for such an act, dared not go so far as to require 
 the boon which his Majesty's ministers now call on the 
 house of commons of England to have the condescension 
 to grant !" 
 
 Indeed! by an examination of the record of the times, 
 your Majesty will find that whenever there has been ex- 
 hibited a similar state of affairs to those which existed in 
 the Canadas in 1S37 and 1838, wherever it has been, 
 there we have found the British people acting as volun- 
 teers with their swords. I bring these facts to the notice 
 of your Majesty for the purpose of showing that the Ame- 
 rican citizens who embarked in the undertaking to sustain 
 the late revolutionary movements in the Canadas, did no 
 more than there had been examples set for them in almost 
 every country on the face of the earth, by your Majesty's 
 subjects ; and that, therefore, although a severe and ener- 
 getic self defence was expected to have been met from 
 your Majesty's forces — we could not anticipate the treat- 
 
LETTER TO THE BRITISH QUEEN. 19 
 
 ment which has been bestowed upon those of us who were 
 engaged in those revolutionary movements and 'whose 
 fortunes it has been to fall into the hands of your Majes- 
 ty's government; and I would ask your Majesty, if from 
 a government, supported by such people as your Majesty's 
 subjects, we had not a right to expect to be met with more 
 liberal measures ; and to have received more generous 
 treatment than such as has been meted out to us ? 
 
 In a document, very recently published, your Majes- 
 ty's governor general of the Canadas has declared " the 
 rebellion at an end" — and he has proclaimed, " that he n» 
 longer entertains fears of those provinces being again dis- 
 turbed by political commotion." I have, also, before 
 me a document emanating from your Majesty's govern- 
 ment, during the past year, wherein it is shown that your 
 Majesty has a military force now organized in the Cana- 
 das, amounting to more than 50,000 men, including re- 
 gulars and irregulars. While such a force is main- 
 tained in those provinces by your Majesty, the idea of 
 any successful movement on the part of the revolutionists, 
 without the assistance of some powerful nation, having at 
 its command great resources and a large and well appoint- 
 ed army, is not now likely to be entertained. 
 
 For these reasons, in behalf of the American citizens 
 who are now prisoners to your Majesty's government, I 
 would respectfully solicit your Majesty to notice their con- 
 dition ; and so to consider their case as to allow them to be 
 speedily released from their present confinement and per- 
 mitted to return to their country and friends. 
 All of which is respectfully submitted. 
 
 For your Majesty's early consideration. 
 
 TH: J. SUTHEELAND. 
 New York, January 1, 1840. 
 
(A.) 
 
 To THE Eight Honorable John George Earl of Dur- 
 ham, Viscount Lajibton, &c. &c. &c. Knight Grand 
 Cross of the most Honorable Military Order of the 
 Bath, one of Her Majesty^s viost Honorable Pri- 
 vy Council, and Governor General, Vice Admiral and 
 Captain General of all Her Majesty's Provinces luithiii 
 arid adjacent to the Continent of North America. 
 My Lord — The fact that I, (a citizen of the United 
 States of America,) am now detained as a prisoner in 
 this fortress, I must believe is well known to your Lord- 
 ship ; and therefore, I beg permission to call your Lord- 
 ship's early attention to the causes and circumstances of 
 my detention and imprisonment by Her Majesty's Govern- 
 vernment, to the end that your Lordship may order my 
 immediate liberation. 
 
 Born and educated in a republic where no titles are con- 
 ferred and no distinctions recognized, except those limi- 
 ted to place ; and where the most exalted in power may be 
 familiarly approached with the most homely language, I 
 am, my Lord, consequently wholly uninstructed in the 
 manner in which it is usual for persons of your Lordship's 
 exalted rank and station, in this country, to be addressed ; 
 and at this moment I find myself not a little embarrassed 
 in the choice of words to convey my ideas, for while I 
 would approach your Lordship with all the deference and 
 courtesy of language your Lordship is entitled to, and 
 which it would be as creditable to myself as respectful to 
 your Lordship for me to observe, I am in danger of being 
 thought to make an unbecoming supplication. Therefore, 
 I beg I may be allowed to address ^'our Lordship in the 
 manner common to my own country; and then, however 
 
22 LETTER TO LORD DURHAM. 
 
 different may be the language of this, from the commu- 
 nications your Lordship has been in the habit of receiv- 
 ing, while it is recollected, I am an American citizen, I 
 would have your Lordship regard no expression of mine 
 as intentionally indecorous. 
 
 The Lieutenant Governor of the Province of Upper 
 Canada, having caused information to be given me " that 
 copies of all the papers and documents connected with 
 my cayture and detention, and trial before a Militia Gene- 
 ral Court Martial of that Province, (of which trial I am to 
 presume your Lordship has been in some manner advised,) 
 had been transmitted to the Home Government of Great 
 Britain for Her Majesty's consideration," I had intended 
 this communication for the Secretary of State for the 
 Colonies; but having been, (unexpectedly to me,) re- 
 moved into this Province, it has suggested itself to my 
 mind that the determination of my case is now within the 
 prerogative of your Lordship, and that it might be regard- 
 ed as indecorous, on my part, to attempt to pass your 
 Lordship with a communication to one of Her Majesty's 
 Secretaries of State, at London. If I am in any way 
 mistaken, I trust your Lordship will do me the kindness 
 to cause this communication to go into the hands of those 
 of Her Majesty's Government, who do hold the preroga- 
 tives, and whose duty it is to hear and determine this 
 matter, in which my future liberty is concerned. 
 
 I would state for your Lordship's consideration, that at 
 the time an attempt was made, during the past year, by a 
 portion of the inhabitants of the Province of Upper Ca- 
 nada, to effect a political revolution in that Province and 
 to establish a government therein, independent of Great 
 Britain, numbers of the inhabitants of the Province fled 
 to the borders of the United States, and there painted and 
 described to the people of my country many grievances 
 
LETTER TO LORD DURHAM. 23 
 
 to which they alleged the people of these Provinces vvere 
 subjected by the system of Colonial Government main- 
 tained herein by the British nation ; and that such de- 
 scription and statements of wrongs were generally be- 
 lieved by my countrymen: and your Lordship, no doubt, 
 has been advised that a large majority of the citizens of 
 the United States, bordering upon the Provinces of the 
 Canadas, then took a deep interest in the political affairs 
 of these Provinces, and warmly espoused the cause of the 
 revolutionists. That such was the fact, and that among 
 the number, I was one, I would have your Lordship to 
 understand. 
 
 At that time, it was represented to me by recent inha- 
 bitants of the Canadas, (many of whom had held some 
 of the highest political stations in the Provinces,) that the 
 number of the people of the Province of Upper Canada 
 who were disaffected towards the British Colonial Govern- 
 ment, and who were then disposed and ready to try an 
 appeal to arms, and make the effort, in connexion with 
 the people of the Lower Province, to establish the political 
 Independence of the Canadas, amounted to mare than three- 
 fourths of the whole population of the Province; and be- 
 lieving, as I certainly did, that the insurrection which 
 was then begun would amount to a general rising of the 
 inhabitants, I consented to be employed as one of the offi- 
 cers to conduct the military operations on the part of the 
 Revolutionists : and on or about the 16th day of December 
 last, I joined an armed body of men who had taken pos- 
 session of, and who then occupied Navy Island in the 
 Niagara River ; and there, as second in command of the 
 force, I used the utmost of my abilities and exertions to 
 fortify the Island so as to resist any assault from Her Ma^ 
 jesty's forces, and to reduce the officers and men compo- 
 sing the force congregated at that place to such a state of 
 
24 LETTER TO LORD DURHAM. 
 
 discipline as would enable them to act in the field against 
 Her Majesty's troops; and that I was thus employed on 
 Navy Island until about the 2Sth day of December, when 
 I left the Island and proceeded to the frontiers on the De- 
 troit River, with instructions, from the persons under whose 
 orders I acted, to take the command of a force of armed 
 men which was being embodied in that vicinity to assist 
 in sustaining the revolution ; and on the 8th of January, 
 (1838,) I arrived on the Detroit River, and there found 
 a considerable force embodied, with which I remained un- 
 til the 10th day of the same month. On the 9th, with a 
 small detachment of the force placed under my command, 
 I took possession of Bois Blanc, (an Island in the Detroit 
 River, which is said to be within the Province of Upper 
 Canada,) driving therefrom Her Majesty's forces, by 
 which it had been occupied — and capturing, at the same 
 time, a stand of Her Majesty's colors, with a large quan- 
 tity of provisions and military stores belonging to the 
 forces of Her Majesty which had fled upon our approach. 
 My taking possession of Bois Blanc was an act preparato- 
 ry to the making of an intended descent upon the Pro- 
 vince for the purpose of co-operating with the force then 
 on Navy Island. But through the disobedience of my 
 orders by some of the individuals who were there acting 
 as officers under my command, having lost a schooner we 
 possessed, with a large quantity of arms, ammunition, mili- 
 tary stores and camp equipage prepared for the expedi- 
 tion ; and finding that the whole of the body of men I 
 had to command were without the least practical know- 
 ledge of military tactics, or of the details of an army, 
 and utterly ignorant of the first step of discipline, and 
 without officers in any way competent to command them 
 — on the 10th day of January I evacuated the post I had 
 taken upon the Island of Bois Blanc, and relinquished my 
 
LETTER TO LORD DURHAM. 25 
 
 command of the force ; and since said 10th day of Janu- 
 ary, I was not joined to, or connected with, any persons or 
 armed body of men, within the limits of anj" of Her Majes- 
 ty's Provinces, or with any such armed hody of men collect- 
 ed elsewhere for the purpose of invading any of the Provin- 
 ces of Her Majesty; nor was I afterwards engaged in 
 aiding any of Her Majesty's subjects who were traitor- 
 ously in arms against Her Majesty. 
 
 After having been, the brief time I have mentioned, 
 connected with those who were laboring to subvert the au- 
 thority of Her Majesty the Queen of Great Britain, in 
 the Province of Upper Canada, surrendering my com- 
 mand as I have stated, I proceeded to the city of Detroit 
 in the State of Michigan, at which place and its vicinity 
 I remained until the close of the month of January, when 
 I became satisfied the insurrection in Upper Canada had 
 entirely failed to present the character of a genera] rising of 
 the people, as I had anticipated ; and then, although I had 
 up to that time contemplated being again employed as a 
 military commander in behalf of the Revolutionists of 
 Upper Canada, I was convinced that no further operations 
 in behalf of the revolution could, at that time, be carried 
 on with any credit to the leaders, or with any chance of 
 success ; and accordingly, early in the month of February, 
 I tendered to the persons under whose orders I had acted, 
 a resignation of the military command with which I had 
 been invested, and caused the fact that I had done so, to 
 be made known, by a notice, to that effect, published in a 
 public newspaper of the city of Detroit, at which place I 
 was at the time. But having learned that some of the 
 Canadian Refugees remaining at Detroit had taken the 
 publication of my resignation and retirement from the 
 Patriots to be merely a ruse, and that they supposed I 
 still intended further to act with them, that there might 
 
 3 
 
2S LETTER. TO LORD DURHAM. 
 
 tured by a party of armed men under the command of one 
 John Prince, an officer of Her Majesty's Militia of the 
 Province of Upper Canada. 
 
 At the moment of my being thus captured I protested 
 to the persons by whom I was taken, that I was at the time 
 within the limits of the United States ; and gave them no- 
 tice that I was an American citizen^ then peaceably pursu- 
 ing my oion private business ; and that I was in no ivay 
 connected with the Patriots, or with any movements of the 
 Canadian Revolutionists. I had thought that being within 
 the limits of my own country would have proved a protec- 
 tion to my person — but, nevertheless. Prince and his party 
 persisted in my capture, and took me a prisoner to Fort 
 Maiden in the Province of Upper Canada. 
 
 I was in no kind of military array when captured, nor 
 had I any person in my company, except one individual, 
 a youth who resided at \the city of Albany in the State 
 of New- York, and who was a native born citizen of the 
 United States ; and as for arms for offence, ice had none, 
 not even such as to defend ourselves with. We had neith- 
 er pistols nor fire-arms of any description ; though, it was 
 true, we had in our possession two old, futile, inefiicient 
 and edgeless swords, which we had found at a public house 
 on our way from Detroit, and which we had taken into 
 possession solely from the circumstance of their being my 
 private property — and not to be used as matter of offence 
 or defence. 
 
 Shortly after my being taken a prisoner to Fort Maiden, 
 I was removed to the city of Toronto, where immediately 
 upon my arrival, by an order of Sir F. B. Head, then 
 
 its of the United States, at a time when I was in no manner connected 
 with the RevolutionisiM of the Province; and, therefore, that I ought to be 
 set at liberty on the shores of my own country, without further deten- 
 tion. His reply was — " they had me — and my capture was justifiable even 
 if I had been taken in the city of New- York." 
 
LETTER TO LORD DURHAM. 29 
 
 Lieutenant Governor of that Province, I was tried by 
 lohat was called a Militia General Court Martial, (which 
 court consisted of but eight members exclusive of the Pre- 
 sident thereof,) under certain statutes, as I was informed, 
 passed by the Provincial Parliament of the Province of 
 Upper Canada, upon a charge, a copy of which was fur- 
 nished me in the words and figures following, to wit : — 
 "■ Charge — That Thomas Jefferson Sutherland, being a 
 citizen of the United States of America, (the said United 
 States of America, being at peace with the United King- 
 dom of Great Britain and Ireland,) and having joined 
 himself, on or about the 26th day of December last at 
 Navy Island, in the District of Niagara, in the Province 
 of Upper Canada to William Lyon Mackenzie, and others, 
 unknown subjects of our Sovereign Lady the Queen, 
 who were then and there traitorously in arms against 
 Her Majesty after the 12th day of January last, within 
 the limits of the Province aforesaid, was in arms against 
 Her Majesty, against the form of the Statute in such case 
 made and provided." "A true copy." (Signed,) " James 
 Fitz Gibbon, Judge Advocate." 
 
 I was also informed by the said Court Martial, that the 
 Charge upon which I was tried, was framed under a sta- 
 tute of the Province, which was passed on the 12th day 
 of January, A. D. 1838; a copy of which was also deli- 
 vered me by the said Court Martial, bearing the title of 
 ^^An act to protect the inhabitants of this Province against 
 lawless aggression from the subjects of foreign countries 
 at peace with Her Majesty.^'' 
 
 The first section of this act under which, as I was in- 
 formed, I was put upon trial, was in these words and figures, 
 to wit : " Whereas a number of persons lately inhabiting 
 the State of New- York, or some one of the other United 
 States of America, have, within the said State of New-York, 
 3* 
 
30 LETTER TO LORD DURHAM, 
 
 lately enlisted or engaged themselves to serve as soldiers, 
 or have procured others to enlist or engage themselves to 
 serve as soldiers, and have within the said state of New- 
 York, collected artillery, arms and ammunition, and made 
 other preparations for a hostile invasion of this Province un- 
 der the pretext of assisting certain traitors who have fled 
 from this Province to the said United States ; and whereas, 
 the said persons without the authority of their Govern- 
 ment, and in defiance of its express injunctions, have 
 actually invaded this Province, contrary to the faith 
 and obligation of the treaties subsisting between the 
 United Kingdom of Great Britain and Ireland and the 
 said United States, and during the continuance of the 
 relations of amity and peace between the two countries: 
 and whereas it is necessary for protecting the peace and 
 security of this Province to provide for the prompt pun- 
 ishment of persons so offending : Be it enacted by the 
 Queen's Most Excellent Majesty, by and with the advice 
 and consent of the Legislative Council and Assembly of 
 the Province of Upper Canada, consj;ituted and assembled 
 by virtue of, and under the authority of an act passed in 
 the Parliament of Great Britain, entitled, *' An act to re- 
 peal certain parts of an act passed in the fourteenth year 
 of His Majesty's reign, entitled an act for making more 
 effectual provisions for the Government of the Province 
 of Quebec in North America, and to make further provi- 
 sions for the Government of the said Province, and by the 
 authority of the same,' That if any person being acitizen or 
 subject of any foreign state or country at peace ivith the 
 United Kingdom of Great Britain and Ireland, having 
 joined himself before or after the passing of this act, to 
 any subjects of our Sovereign Lady the Queen, Her Heirs 
 or Successors, who are, or hereafter may be traitorously in 
 arms against Her Majesty, Her Heirs or Successors, shall 
 
LETTER TO LORD DURHAM. 31 
 
 after the -passing of this act he or continue in arms againzt 
 Her Majesty, Her Heirs or Successors, rvithin the Pro- 
 vince, or commit any act of hostility therein, then it shall 
 and may be lawful for the Governor of this Province to 
 order the assembling of a Militia General Court Martial 
 for the trial of such person, agreeable to the militia laivs 
 of this Province ; and upon being found guilty by such 
 Court Martial of offending against this act, such person 
 shall be sentenced by the said Court to suffer death, or 
 suck other punishment as shall he aicarded hy the Courts 
 
 I was also furnished by the said Court Martial with 
 a copy of another act of the Provincial Parliament of the 
 Province of Upper Canada, hearing date the 6th day of 
 March, A. D. 1838, {two days after my capture,) the same 
 being a code of " Militia Laws of the Province," under 
 one of the provisions of which act, I was informed 
 by the said Court Martial, the same had been organized ; 
 and under the provisions of this law of the 6th of March, 
 the oath administered to the President and members of 
 the said Court Martial was framed, and couched in the 
 words following, to wit : " You A. B. do swear that you 
 will administer justice to the best of your understanding 
 in the matter now before you, according to the evidence, 
 and the Militia Laws now in force in this Province, with- 
 out partiality, favor or affection,^^ &CC. 
 
 Now, if we should suppose that I could be properly 
 tried by a Court Martial organized under a law passed 
 after my capture ; and that this law of the 12th of Janu- 
 ary, under the provisions of which the C^ar^e upon which 
 I was tried, was drawn up, had been constitutionally enact- 
 ed, your Lordship will perceive that in order regularly to 
 convict me of the Change preferred against me, it wjfs ne- 
 cessary to establish by proofs — 
 
 \st. That I was a citizen or subject of some foreign 
 
32 LETTER TO LORD DURHAM. 
 
 State or country at 'peace with the United Kingdom of 
 Great Britain a7id Ireland. 
 
 2d. That I had joined myself, hefore or after the passing 
 of the act, to some of the subjects of Her Majesty the 
 Queen, who loere then traitorously in arms against Her 
 Majesty; and had continued so to he in arms after the 
 passing of the act, (12th of Jan. 1838.) 
 
 ScZ. That after the passing of the act, (12th Jan.) I had 
 been or continued in arms against Her Majesty within the 
 Province of Upper Canada, or committed some act of hos- 
 tility therein : 
 
 And these were the special averments of the Charge 
 upon which I was tried. 
 
 The only testimony adduced upon my trial before the 
 Court Martial to sustain the first averment of the Charge 
 preferred against me, and to prove the facts necessary so 
 to be established on that point in order to bring me with- 
 in the provisions of the act, under which it was professed 
 I was tried, was the proof that I had, after my capture, ad- 
 mitted " that Itvas a citizenofthe United States of Ameri- 
 ca,'''' which testimony was, perhaps, so far as it went, suffi- 
 cient in itself. But,then, there was noproof or evidence of 
 any kind given or offered upon my trial to establish the fact 
 that the United States of America, " icas a state or coun- 
 try at peace with the United Kingdom of Great Britain 
 and Ireland.''^ 
 
 Here I may remark to your Lordship, that it is a 
 rule of law, as I helieve, that every averment of a count 
 in an indictment, (and consequently every averment of a 
 Charge before a Court Martial,) must be proven. (2.) 
 
 (2.) It is an established rule of law that all those facts necessary 
 to have existed in order to constitute nn ofience, must be set out in the 
 indictment, (orcljarge,) and must be proven. In the 1st of Starkie, p. 
 444, it is said, " when there is a failure of evidence to establish any one 
 essential averment, the court direct an acquital in a criminal case. Same 
 
LETTER TO LORD DURHAM. 33 
 
 To sustain the second averment of the Charge and 
 to prove the facts necessary to be established on the part 
 of the prosecution in order to bring me within the provi- 
 sions of the act, one Matthew Hayes was called by the 
 Judge Advocate, and sworn as a witness, who testified, 
 substantially — " that on the 21st day of December last, 
 (1837,) he went upon Navy Island, in the Province of 
 Upper Canada — that after he arrived upon the Island he 
 saw William Lyon Mackenzie, who asked him what 
 brought him there — that he told Mackenzie he came to 
 see the Island — that Mackenzie told him he could not leave 
 the Island — that he saw me on the beach when he landed 
 on the Island — that he saw me on Navy Island from the 21st 
 to the 2Sth or 29th of December — could not be positive 
 which — that I was in the capacity of second in command 
 of the Patriot forces — that I was Brigadier General — that 
 he saw me leave the Island — that I went towards the 
 shores of New- York — that I addressed the men on the 
 Island the day before I left it — and said ' thetj tvere em- 
 harked in a glorious caiLse' — and ' implored the God of 
 Battles to direct and prosper them^ — that while I was 
 there I wore a cavalry sword slung in the usual form — 
 that there were no people in uniform on the Island — 
 that those on the Island were generally armed with guns 
 swords, pistols and pikes — that some had charge of can- 
 non — that he saw Mr. Gorham on. the Island who acted as 
 aid-de-camp to General Van Eensselaer, and who told him 
 he, (Gorham,) came from New-Market in Upper Canada 
 — that there were about forty persons on Navy Island 
 whom he understood were British subjects — that many 
 of them told him so — that they formed a part of the hos- 
 tile force — but that all the knowledge he had that any 
 
 authority — p. 371, it is also declared, " that every material and essential 
 allegation, and every circumstance descriptive of its identity, must be 
 proven as averred." 
 
34 LETTER TO LORD DTJRHA:*!. 
 
 person he saw on Navy Island at the time I was there 
 were British subjects was that they told him so — that 
 General Van Rensselaer was in command on Navy Island 
 - — ^but that he was sometimes absent — and then I com- 
 manded — that General Van Rensselaer was an American 
 citizen as he understood — that William Lyon Mackenzie 
 held no military command on the Island — that he, Hayes, 
 did not go to Navy Island for the purpose of joining the 
 Patriots — that when there I told him not to make himself 
 uneasy — that he might stop in my quarters — that he was 
 detained there against his will — that he considered him- 
 self while there a prisoner, not being allowed to go off — 
 that I appointed him to the office of Adjutant — which he 
 accepted through fear — and continued to do the duty until 
 I had left the Island — and until he was displaced on ac- 
 count of not acting more efficiently — that he left Navy Is' 
 land on the ^ih day of January — after Mackenzie had left 
 it, by leave of General Van Rensselaer — that he was not 
 again on the Island — that he had never afterwards seen 
 any of the persons whom he saw on Navy Island while I 
 was there, in any part of Her Majesty's dominions, or 
 elsewhere — and that he had not seen me since I had left 
 Navy Island, (28th December,) until he saw me present in 
 Court." 
 
 But, there was no evidence adduced upon my trial be- 
 fore said Court Marrial to prove " that William Lyon 
 Mackenzie was a subject of Her Majesty ;"" and other than 
 the preceding statement of the testimony of Hayes, there 
 was no proof given to establish the fact as alleged *' that 
 any of the persons who were on Navy Islaiid at the time I 
 was there, were subjects of Her Majesty the Queen of Great 
 Britain and Ireland.^'' Nor was there any item of testi- 
 mony or proof given on my trial before said Court Mar- 
 tial to show " that William Lyon Mackenzie,or any other 
 
LETTER TO LORD DURHAM. 35 
 
 alleged subject of Her Majesty, with ivhom Iivas charged 
 to have been joined in arms against Her Majesty, 07i 
 Navy Island, toere at the date of the passage of the act, 
 (12th January,) or any time thereafter, traitorously in 
 arms against Her Majesty, at Navy Island, or at any other 
 place icithin the Province of Upper Canada,^' as averred 
 in the Charge, and as it was necessary to have been es- 
 tablished on the part of the prosecution against me in or- 
 der to bring me properly within the the provisions of the 
 act under which it was professed I was tried. Quite the 
 contrary, however, was shown, as your Lordship will 
 readily perceive by the testimony of Hayes ; who swore 
 that " he left Navy Island on the 4:th of January, (eight 
 days before the passage of the act,) previous to which time 
 Mackenzie had left the Island, and he, (Hayes,) had never 
 after he left Navy Island, (4th of January,) seen Macken- 
 zie or any other of the persons whom he had seen on the 
 Island lohile I was there, in arms in any part of the Pro- 
 vince of Upper Canada, and that he had no knowledge of 
 any such persons, whatever, since he left Navy Island ;^^ 
 and as the testimony of this Hayes might be supposed to 
 apply to the 3d averment contained in the Charge, your 
 Lordship will perceive he swears positively, " that he 
 had not seen me since heleft Navy Island, (4th of January,) 
 until he then saw me m Court, on my trial.'''' 
 
 To sustain the 3d averment of the Charge, as well as 
 to prove other facts necessary to be established to bring 
 me within the provisions of the act, John Prince, the in- 
 dividual who commanded the party by whom I was cap- 
 tured, and Prideaux Girty, who was also of that party (3.) 
 
 (3.) In the first instance, Major Rudyard with Lieutenant James and 
 Lieutenant Wright, were sent over from Maiden to Toronto, to be used 
 as witnesses against me on my trial, in order to establish the circum- 
 stances of my capture. But, Prince and Girty having arrived at Toron- 
 to before the court had commencd taking testimony, they were called 
 
36 LETTER TO LORD DURHAM. 
 
 were called by the Judge Advocate, and sworn as wit- 
 nesses on the part of the prosecution against me. 
 
 Prince testified, substantiall}?- — " that on the 4th day of 
 March last, (1838,) he was on the shores of Lake Erie, at 
 about 7iine miles helow Amherstburgh, in the Western 
 District of Upper Canada, when he saw at a great dis- 
 tance^ two objects on the ice — that he was proceeding on 
 towards Amherstburgh in company with Girty, and con- 
 tinued on his way about one mile, when he discovered the 
 two objects were men — that then having procured fresh 
 teams, he started off with others in pursuit — that he ap- 
 proached within one hundred yards of m3'self and anoth- 
 er individual who was then in my company — when he 
 and one Haggerty, a companion of his, (Prince's,) got out 
 of their sleighs and following me with their guns, hailed 
 me, and commanded me and my companion to halt. That 
 we did so, and that I then asked ' what do you leant V — 
 and said ' loe are American citizens going about our oion 
 business'' — that he then told me to consider myself his 
 prisoner, and go with him — that I and my companion did 
 so without any resistance — but, that / charged him with 
 having captured me within the limits of the United States 
 — that we had each of us a sword but no other kind of 
 weapons — that at the time of my capture I was walking 
 towards the Canada shore, of which he said, I was within 
 a mile and a half — that the place at which I was captured, 
 7vas opposite the Canada shore, three miles beloio Bar Pointy 
 commonly called Hartly's Point, and opposite the shore of 
 Michigan at or near Gibralter. That when captured, I 
 was 07ie mile and a half from the Carmda shore, and ybz^r 
 a7id a half miles from the shore of Michigan.^^ Prince, 
 also testified — " that at the moment I was captured by him, 
 
 first; and the Jydge Advocate having ascertained that the first named of- 
 ficers would not corroborate the testimony given by Prince and Girt)', 
 rested the prosecution without calling them. 
 
LETTER TO LORD DURHAM. 37 
 
 / informed him I had been rohhed of my baggage at Mon- 
 roe, and that 1 was 07i my loay to Lower Sa7idusky, for 
 the purpose of intercepting some persons who had been con- 
 cerned in the robbery ;^^ and further, " that at the time of 
 my capture, I was travelling in a south-easterly directio?i — 
 (the direct course, from whence I had started, to 
 Sandusky — and a very different one from the Canada 
 shore — which lay due north from the place where I was 
 captured,) that at the time of my capture, 1 7oas within half 
 a mile of a certain schooner which was then frozen in the 
 ice at the head of Lake Erie, and eight or nine miles from 
 the Island of Bois Blanc — [This schooner it is well 
 known, lay at the time, several miles within the lines of 
 the United States.] — that I had stated on an examination 
 at Amherstburgh, before himself, {Prince,) Girty and 
 one Lachlan, all justices of the peace of the Western 
 District of Upper Canada, on the day next after my cap- 
 ture — (substantially) — ' that I had been on Navy Island 
 with Van Kensselaer and Mackenzie — that I had served 
 there as second in command — that I had left Navy Island 
 on or about the 26th of December — that I had then 
 come to the Western Frontiers where I took command of 
 an expedition which had been there fitted out — and that 
 with a detachment of the expedition I had on the 9th of 
 January last, taken possession of Bois Blanc Island, and 
 had again abandoned it on the 10th — that I had then giv- 
 en up my command and gone to the city of Detroit.' " 
 
 Prince, also produced a paper on which, as he testified, 
 he had ,written the substance of what, he said, were my 
 admissions; which paper I had not signed, nor been asked 
 to sign, as Prince testified ; and he also produced a news- 
 paper called the " Detroit Morning Posf — which had 
 been published in the city of Detroit in the United States; 
 and in the copy of the newspaper he produced, there were 
 
 4 
 
38 LETTER TO LORD DURHAM. 
 
 printed certain Despatches and Proclamations over my 
 name, which he testified I had admitted of having pub- 
 lished ; and the papers were all received and admitted 
 as testimony by said Court Martial, notwithstanding I ob- 
 jected to their being received, on the ground that they 
 were irrelevant and improper as proof. 
 
 The testimony of Girty, failed to corroborate that de- 
 posed by Prince in many important respects ; though he, 
 like Pri?zce, testified, " that they had captured me within 
 one and a half miles of the Canada shore ;" (the distance 
 I am to suppose, ikey had agreed upon, to call it,) though 
 neither pretended to have measured the distance — nor of 
 having obtained any certain knowledge of the location and^ 
 bearings of the place. Girty testified, " that I was walk- 
 ing, at the time of being captured, /roTTZ theCaimda shore, 
 down the lake," while Prince swore — " that I was going 
 towards the Canada shored Girty testified, " that the 
 nearest place on the Canada shore to the spot where I 
 was captured ivas Haj'tly^s Point,^'' while Prince swore — 
 " that it was three miles below Hartly''s Point. ^^ Girty 
 testified, " that the nearest point on the shore of Michi- 
 gan to the place of my capture was Point Mouillee,''^ while 
 Prince swore — " that it loas at or near Gibralter,^^ several 
 miles above the place designated by Girty. Girty testi- 
 fied, '■^ that I was captured two miles from the schooner 
 frozen in the ice at the time," while Prince swore — " that 
 I was captured within half a mile of it." Girty testified, 
 '•'that I ivas captured within four and a half miles of 
 Bois Blanc Island,"" while Prince swore — 'Uhat I ivas 
 captured eight or nine miles helow the same island.'''' There 
 were also many other discrepancies in the testimony de- 
 posed by Prince and Girty, which exhibited it to be alto- 
 'gethera matter of uncertainty — most extravagantly re- 
 lated. 
 
LETTER TO LORD DURHAM. 39 
 
 During the proceedings of my trial, James Macauley, 
 Esquire, Surveyor General of the Province of Upper Cana- 
 da, was called by the Judge Advocate, and sworn as a wit- 
 ness ; and he produced then, a roll of drawings, or parts of 
 charts, one sheet of which, he testified — " ivas said to be 
 a chart of part of the head of Lake Erie ;" that, on which 
 it was alleged, I had been captured. On the chart 
 there was a line marked to represent the dividing line be- 
 tween Canada and the United States ; which line, however, 
 was admitted by the Surveyor General, to be erroneous ; 
 and another line was marked upon the chart with a pen- 
 cil, which he testified — " he understood to be the true 
 line — and that the sheets of drawings, (or charts,) produced, 
 were found by him among the records of his office;" and 
 this Avas all he testified to in the premises ; and upon this 
 showing, the cause was rested on the part of the prosecu- 
 tion. 
 
 There was no proof given on my trial which went to 
 show how far the dividing line between the two countries, 
 in the neighborhood of the place of raj capture, was es- 
 tablished from the Canada shore ; or that I was in any 
 manner connected, at the time of my capture, with any 
 of Her Majesty's subjects, who were or had been, traitor- 
 ously in arms against Her Majesty, within the said Pro-, 
 vince of Upper Canada ; nor was there any pretence of 
 proof set up by the prosecution on my trial, to show that 
 I had been in arms against Her Majesty, within any 
 of Her Majesty's Provinces, since the 12th day of Janua- 
 ry last, (date of passage of the act,) or that I had ever 
 been within the Province ; (except the fact of my having 
 been on the ice at the head of Lake Erie, at the time I 
 was captured,) or that I had committed any act of hos- 
 tility therein. - 
 
 On my part, I neither called witnesses in my behalf, nor 
 
40 LETTER TO LORD DURHAM. 
 
 produced any kind of testimony; relying for my defence up- 
 on the evident failure of the testimony, adduced on the part 
 of the prosecution, to sustain the Charge preferred against 
 me ; with the several objections taken by me, during the 
 trial, to the proceedings of the Court Martial, which were 
 briefly as follows : 
 
 \st. That one half of the members composing the Court 
 had not before sat on a Court Martial. 
 
 2d. That the President of the Court had not before sat 
 on a Court Martial. 
 
 These objections were grounded upon information I 
 had received, that the President of the Court Martial, 
 and a majority of the members, were persons who had 
 been recently appointed to office in the Militia of the Pro- 
 vince of Upper Canada — that they had been but a few 
 days in military employment — and that they had never 
 before sat on a Court Martial. Although these facts 
 were not disputed nor controverted by the Court, the 
 members objected to were all permitted to keep their seats 
 as members of the board. The objections were started 
 in accordance with the practice usual in the organization 
 of Courts Martial in the British Empire. On these points, 
 however, it is true, the Militia laws of the Province are 
 silent ; but in the absence of any statutory provisions on 
 the subject, the usual course, which is in support of the 
 objections made, in my opinion, ought to have been re- 
 garded. The Practice of Courts Martial, the Articles of 
 War of the nation, and the Mutiny Act, are and ought 
 to be, as I think, the guide, in the absence of any parti- 
 cular statutory enactments. 
 
 3^. That one of the members of the Court, a Major 
 Deioson, was at that time, an officer in the regular army 
 of Her Majesty, under fill pay, and therefore inelligible 
 to sit o?i a Militia General Court Martial. 
 
LETTER TO LORD DURHAM, 41 
 
 This objection was made in accordance with a provi- 
 sion of the statute of the Province, and grounded upon 
 information I had received that Major Dewson, was at the 
 time a Lieutenant and Quarter Master of Her Majesty^s 
 15th Regt. of foot ; (his name appearing on the army list 
 as such ;) and that he was, as such Quarter Master, re- 
 ceiving full pay. But, notwithstanding the fact upon 
 which this objection was based was not denied by Major 
 Dewson, nor contradicted by the Court, he was allowed to 
 retain his place on the Court Martial, as a member there- 
 of.(4.) 
 
 By the only Provincial law which was in force at the 
 time of my capture, applicable to my case, (48 Geo. 3d, 
 Chap. 1, Sec. 23,) it is provided, " that no officer serving 
 in any of Her Majesty's other forces, shall sit on any 
 Militia Court Martial," &c. (5.) 
 
 4:th. That the act of the Provincial Parliament of Up- 
 'per Canada of the 12th of January, under the provisions 
 of which I was tried, was unconstitutional, and unauthor- 
 ized by, and u7ifounded upon any delegated authority from 
 the Government of Great Britain to constitute it a law. 
 
 The ground I assume, my Lord, is, that a law affecting 
 the rio-hts of foreigners can only emenate from the parent 
 
 (4f) By the common law of England, though jurors may be challenged, 
 the judges, or justices cannot; but in the courts where the proceedings are 
 carried on, according to the civil and common laws, the judges, who like 
 the members of Courts Martial, are also judges of facts, may be challenged, 
 and thev commonly, of their own accord, decline sitting as judges in a 
 cause \vhere they may be supposed to be under the least bias or partiality 
 to one side or the other. — /. Coke's Inst. p. 294-677. 
 (5.) An extract from the Militia Laws of the Province of Upper Canada, 
 
 passed March 16, 1808— a?«c/m force until the sixth day of March, 1838. 
 
 " Provided always, that the judgment of every such Court Martial shall 
 pass with the concurrence of two-thirds of the members, and shall not be 
 put in execution, until the Governor, Lieutenant Gvernor, or person ad- 
 ministering the Government, has approved thereof: Provided always, 
 that no officer serving in any of His Majesty's other forces, shall sit on any 
 Court Martial upon the trial of any officer or private man serving in the 
 Militia." 
 
 4* 
 
42 LETTER TO LORD DURHAM. 
 
 State, (if even from such sovereign state it may,) and that 
 a case like mine, with all the facts of the Charge, as alleged, 
 and intended to have been alleged, fully and sufficiently 
 set out, and substantially proved, (which, however, in my 
 case I contend have in no manner been done,) is only for 
 negotiation between Great Britain and the United States, 
 of which latter country I am recognized to be a citizen. 
 
 If the Province of Upper Canada has a right to enact 
 or create such a law as this act of the 12th of January, then 
 must any and all of Her Majesty's forty Colo?iies have 
 equal privileges. The exercise of such privileges, how- 
 ever, it is self-evident, would involve the parent state in 
 inexplicable difficulties, clashing with its treaties with for- 
 eign states, and in a variety of other ways interfering 
 with that power and sovereignty,, which it can alone pos- 
 sess. Upon examination, it appears to me that the con- 
 stitutional act of this Colony, (31st Geo. 3d,) has clearly 
 defined the powers given to the Provincial Legislature ; 
 and limited its control to certain matters of self govern- 
 ment ; such laws not being in contravention to the pro- 
 visions of that act, and not repugnant to the laws of the 
 empire state. Its treatise are parts and portions of such 
 laws, and can only be made by the superior power. See 
 Vattel,p. 192. 
 
 By the treaty now existing between the United King- 
 dom of Great Britain and Ireland and the United States 
 of America, ratified 24th of June 1795, commonly called 
 Jay's Treaty, it is provided, (3d article,) " that it shall at 
 all times be free to His Majesty's subjects, and to the citi- 
 zens of the United States, dwelling on either side of the 
 boundary line, freely to pass or repass, by land, or inland 
 navigation, into the respective territories and countries of 
 the two parties on the Continent of America, and to navi- 
 gate all the lakes, rivers, and waters thereof," &c, 
 
LETTER TO LORD DURHAM. 43 
 
 Then, certainl}-, as I trust your Lordship will allow, a 
 right derived from such a source, cannot be abrogated, 
 however expedient it might be, by a less authority than 
 the one which had created it. The Queen, as supreme 
 head of the empire, has the prerogative of making war 
 and peace, treaties, leagues and alliances with foreign 
 states ; and the Colonists are as fully bound by, and sub- 
 ject to, the consequences thereof as the inhabitants with- 
 in the realm. See B. Edward's, Vol. 2, p. 353, cited in 
 Clarices Colonial Laivs, p. 47. 
 
 It is a restriction imposed by the commission and in- 
 structions of the Governor of the Province, " that ike 
 laws made in the Colony shall not he repugnant to the laws 
 of England.''^ This restriction is enforced by statute 3^ 
 and 4:th Will. 4,th, Chap. 59, Sec. 56 — and has regard to 
 the laws of all the Colonies of Great Britain, whatever. 
 The only exception to this rule, at the time, was in the 
 case of the Province of Lower Canada, established by 
 1st Will. 4:th, Chap. 20, cited in Clark''s Colonial Laws, p. 
 27 ; and upon referring to the A6th Sec. of the 31st Geo. 2d, 
 it will be made evident to your Lordship, that no such 
 powers as have been assumed by the Legislature of the 
 Province of Upper Canada in passing the act under con- 
 sideration, could have been intended to be delegated by 
 the mother country. 
 
 It seems lo have been contemplated that the Provincial 
 Legislature might be disposed to pass laws affecting the 
 empire at large in its commerce. Therefore, that power 
 was withheld by the above section ; from which it may 
 be inferred, fairly and clearly, that for the general benefit 
 of the empire, the power of regulating its commerce 
 should continue to be exercised by Her Majesty and the 
 Parliament of Great Britain, that the solemn obligation of 
 
44 LETTER TO LORD DURHAM. i 
 
 treaties should not he touched or interfered with^ by so sub- 
 ordinate a power as the Legislature of a Colony. 
 
 5th. That the Charge preferred against me^ was not suf- 
 ficiently specific, as required by the act under which it was 
 framed. 
 
 By reference to the act of the 12th of January, and the 
 Charge upon which I was tried, it will be perceived the 
 Charge is defective, inasmuch as it is not alleged therein 
 "that on, or after, the 12th day of January, 1838, (the 
 date of the passage of the act,) I was in arms with any 
 of the subjects of Her Majesty within the Province," or 
 " that I had so committed any act of hostility therein," as 
 required by the provisions of the the act under which the 
 Charge was professed to have been drawn up. 
 
 It is a rule of law, " that all penal statutes must be 
 strictly construed. See Sec. 14, Geo. 2d, Chap. 6, cited in 
 Blackstone' s Commentaries, Vol 1, p. 88, in confirmation 
 of this riile. To subject me to the penalties of this high- 
 ly penal statute, it should have been alleged in the 
 Charge, as well as proven on the trial, " that after the 
 12th day of January last, I was in arms with such traitor- 
 ous subjects," &c. which was not done. Time ^nd. place 
 v/ere also omitted, which were material defects in the 
 Charge. See Tytler on Martial Law, p. 214 — 215. 
 
 6th. That the act of'^ the 12th of January, not " affecting 
 all Her Majesty^ s subjects,'''' but ^'' particular individuals,'''' 
 and those iyidividuals foreigners, loas "a private act,''^ 
 and therefore ought to have been duly proven on the trial ; 
 but which was not done. 
 
 A public statute requires no proof. See Stark. Evid. 
 Vol. 1, p. 163. It is defined to be one " tvhich affects all 
 the King^s subjects.''^ I am a foreigner, recognized as such 
 in the proceedings against me ; and as this act of the 
 12th of January has been made to affect me, and not 
 
LETTER TO LORD DURHAM. 45 
 
 Her Majesty's subjects, can it be otherwise than "a 
 private act ?" which is defined to be such as operates u^- 
 on ^^ pa7'ticular per sons, ^^ and is therefore required to be 
 proven. It has not even been declared a public act, if 
 such a declaration could make it one. To have com- 
 menced legally with the proofs on the part of the prose- 
 cution, the act should have been proven, as the first step, 
 which was not, however, done ; and no evidence was 
 given to the Court, (or exhibited to me, a foreigner,) to 
 show that any such law had been enacted by the Legis- 
 lative authority of the Province, and then in force. See 
 3d Campbell, p. 166, Cowp. p. 174, 2d East, p. 221, and 
 M East, p. 381. 
 
 In law, there are many presumptions, some obviously 
 very violent. Among others, the presumption that every 
 one, being a citizen or subject, knows the law, however 
 ignorant, or however remote his residence from the law 
 making place. Notwithstanding, the individual, (being 
 a citizen or subject of the country,) never gave a vote for 
 a representative who may have assisted in making the 
 law, or indeed from his proverty, or some other reason, 
 had no vote to give ; yet, it is presumed he knows the 
 law ; it is presumed that either directly or indirectly he 
 gave his sanction to its foundation. He belongs to the 
 country, and must be governed by its laws. But, can this 
 presumption be extended to a citizen of a foreign coun- 
 try ? Does he aid, directly or indirectly, or can it be pi-e- 
 suvied, that he who has never resided in the country, nor 
 received protection from its laws, and who owes no 
 allegiance to the government, aided in the formation of 
 its laws ? The ansv,'er is clear, that he cannot. Therefore, 
 this act which affects foreigners, who could not even be 
 presumed to have had any part in framing it, must be 
 considered a ^^ private act,' ^ which required proof. 
 
46 LETTER TO LORD DURHAM. 
 
 Ith. That the Militia laws of the Province of Uppe?- 
 Canada^ passed on the 6th of March last by the Pro- 
 vincial Parliament of that Province^ under the provi- 
 sioms of which, the Court Martial by which I icas tried 
 was organized, had an ex post facto operation, as it re- 
 garded me, and therefore was not properly applicable. 
 
 The Court Martial by which I was tried, as I have 
 before stated, was organized under tlie act of the 6th of 
 March, and consisted of a President and eight other 
 members, only. Whereas, the Militia laws of the Pro- 
 vince in existence and in force at the time of my capture, 
 as well as at the time of the passage of the act of the 12th 
 of January, (which, by the terms of that act, became an 
 essential part thereof, required that all Militia General 
 Courts Martial convened in the Province, should consist 
 of " a President, ivho should be of the ranh of afield officer, 
 and not less than twelve other commissioned officers?'' 
 
 Upon the further examination of British authorities, 
 I find it is enacted by 33^, Geo. '^d, Chap. 13, " that the 
 Clerk of Parliament shall endorse on every act the time 
 it receives the royal assent, which endorsement shall be 
 taken to be a part of that act, and to be the date of its 
 commencement, where no other is provided." See 6th 
 Bac. 371 ; and it is in general true, that no statute is to 
 have a retrospect beyond the time of its commencement ; 
 for the rule and law of Parliament is, " that a law ought 
 to place its mandate, (ought to be in force,) for the future, 
 to meet future contingencies or events, not those that are 
 past." See 2d Mod. R. p. 310 — Gillmore vs. the Execu- 
 tors of Shorter. This case arose upon a promise made 
 before the 24th of June 1677. An action was brought 
 against his executors, and the question was whether the 
 promise, it not being in writing, was within the 29th C. 
 2d, Chap. 3d, whereby it is enacted, " that from and 
 
LETTER TO LORD DURHAM. 47 
 
 after the 24th of June, 1677, no action shall be brought, 
 &c. [in certain cases therein mentioned,] unless in writing 
 signed." The court said " it cannot be presumed that the 
 statute was to have a retrospect so as to take away a 
 right of action, which the plaintiff was entitled to, before 
 the time of its commencement." See Bac. Vol. 6,^. 370. 
 
 So in my case, on the 4th of March I was captured, 
 and on the 13th of the same month, put upon trial on a 
 Charge framed under the act of the 12th of January pre- 
 ceding ; and I was on the 4th of March, unquestionably 
 entitled to a Court consisting of a President and twelve 
 other members, corresponding to the twelve Jurors of the 
 civil law, instead of the Court by which I was tried, and 
 which consisted of but nine memhers, including the Pre- 
 sident, organized under a law not in existence when the 
 offence was alleged to have been committed, but passed 
 subsequent thereto, to wit, on the 6th of March, two days 
 after my capture. To my understanding, this'was giving 
 the law a retrospective effect, which is directly contrary 
 to the legal rules of the country. 
 
 The oath administered to the members of the Court 
 Martial by which I was tried, as I have before stated, 
 was framed according to the provisions of this act of the 
 6th of March, by which the members were sworn to 
 adjudge me " according to the Militia laws then in force 
 in the Province ;" when the fact was, I was neither tried 
 by, nor amenable to any such Militia laws. Therefore, 
 the oath administered to the members of the Court was a 
 mere nullity. 
 
 8th. That the maps produced to the Court hy the Sur- 
 veyor General of Tipper Canada, were n^ot made legal 
 evidence of the dividing line between the two countries. 
 
 There was no proof adduced on my trial before said 
 Court Martial, which went to show that the plans or 
 
4S LETTER TO LORD DURHAM. 
 
 charts prodaced by the Surveyor General of the Province, 
 purporting to exhibit the line of demarcation between the 
 United States nnd Upper Canada, were the original plans, 
 settled and confirmed by the commissioners under the 
 treaty of Ghent ; or even copies of such plans, duly 
 authenticated ; therefore, they were no evidence, and 
 ought not to have been received as such. 
 
 ^th. That 1 10 as prevented by the Court Martial from 
 having the benefit of a cross examination of the Surveyor 
 General, to which I was entitled. 
 
 lOiA. That the paper purporting to contain the sub- 
 stance of an examination, or admissions made by me, and 
 the newspaper containing the Despatches and Procla- 
 mations, ought not to have been admitted as evidence. 
 It having been proven to the court, that I had neither 
 signed the paper, said to contain a statement of my exa- 
 mination, or admissions, nor been requested to sign it, 
 and had refused ; and, (as I contend,) the matters contain- 
 ed in the newspaper produced by Prince were altogether 
 irrelevant, and in no manner connected with the Charge. 
 
 Upon such proceedings, and unsupported by any other 
 testimony than that which I have here detailed, and after 
 I had filed a written defence, the said Court Martial 
 adjudged me guilty of the Charge — and sentenced me 
 'Wo he transported as a felon, to one of Her Majesty'' s 
 Islands during my natural life.''^ Which judgment and 
 sentence, I protest to your Lordship to be contrary to the 
 statutes and laws of the British Empire, unsupported by 
 the testimony, against the usages of civilized nations, and 
 to me most cruel and unjust. (6.) 
 
 (6.) After I had been arraigned before ihe Court Martial, one of the 
 members called upon me and said — '' He conceived it his duty to inform 
 rae that it was the intention of the Government to treat me in a similar 
 manner to that in which Gen. Jackson had treated Arbuthnot and Am- 
 brister" — which every body knows would be, to try me one day and 
 hang me the next. 
 
LETTER TO LORD DURHAM. 49 
 
 If my reading be correct, my Lord, the laws of the 
 British Empire, both military and criminal codes, are intend 
 ed to have a general, and not a special application ; and so 
 long as such a character shall be maintained for them, 
 and they are allowed to have their full force, however 
 severe may be any of their provisions or penalties, the 
 laius will give no sanction to injustice or oppression. It 
 is to be supposed the laws are made, not to have regard 
 to the individual, but to the offence. In this is the secu- 
 rity of the person from the effects of prejudice, of false- 
 hood, and the machinations of the wicked. But, whenever 
 the recipient of power, or public functionary, shall, instead 
 of dealing with the offence, thrust aside the provisions of 
 the laws, in order to adjudge the individual, there is then 
 an end to liberty and public safety. Can it be supposed, 
 my Lord, that when the laws of a country cease to have 
 that respect given them, which places their unim- 
 paired operation paramount to every other object, and 
 they fail to have force to protect even the guilty, from 
 irregular condemnation, they will be found sufficient to 
 preserve the innocent ? 
 
 Your Lordship will perceive that the deficiency of the 
 testimony adduced upon my trial to sustain th.e Charge 
 preferred against me, is as apparent as the irregularity of 
 the proceedings ; no one part of the Charge being fully 
 sustained, but the fact that I am a citizen of the United 
 States, ''to ivhich I have been at all times ready to plead 
 guilty:' 
 
 The fact that previous to my capture I had withdrawn 
 
 The manner I was treated upon my trial, by the individuals who 
 composed the court, was outrageously savage and brutal. A description 
 of their infamous proceedings, it is my intention, hereafter to lay before 
 the public in another work. As a tribunal, the court by which I was 
 tried had neither analogy nor parallel in the historical records of any 
 nation or country — except the account we have of the court instituted 
 by Pizarro for the trial of the unfortunate fnca of Peru, may afford one. 
 
 5 
 
50 LETTER TO LORD DURHAM. 
 
 myself from the cause of the Canadian Revolutionists, and 
 that I was, when captured, in no manner connected with 
 any person eno^aged in any movements, or intended move- 
 ments, of an insurrectionary or belligerant nature in Upper 
 Canada, was notorious at the time of my trial, both in 
 Upper Canada and on the borders of the United States, 
 and might have been established on my trial by an abun- 
 dance of proof had the proceedings against me made 
 such proof necessary : and to establish the contrary, 
 there was no proof. 
 
 The averment that I was captured w^ithin the lines of 
 the Province of Upper Canada is in no manner sufficiently 
 made to appear. Suppose the statement oi Prince, '' that I 
 was taken within a mile and a half of the Canada shore," 
 be admitted to be true, then there was no proof adduced 
 to the Court on my trial which established the fact, that if 
 I had been even at that distance from the Canada shore, 
 it would have placed me within its bounds, which is de- 
 fined but by an imaginary line running through those 
 waters. This point in dispute, however, is of no moment 
 to my defence. By the existing treaties between Great 
 Britain and the United States, I had a right, as a citizen 
 of the United States, to pass unmolested, not only over 
 the waters of Lake Erie, but through any part of the 
 British Provinces in America. 
 
 The act of the 12th of January provides only for the 
 trial of such foreigners, &c. as were in arms against Her 
 Majesty, in said Province on or after the 12th of January, 
 (the date of the act,) or who should commit hostilities 
 therein. Now, when captured, according to the testimony, 
 I was peaceably pursuing my course on the ice, at the 
 head of Lake Erie, in a south-easterly direction, (the 
 direct route from Gibralter to Sandusky in Ohio,) 
 unaccompanied by any person but a single individual 
 
LETTER TO LORD DURHABT. 51 
 
 whom I have before mentined ; (a citizen of the United 
 States, like myself, and whom the Lieutenant Governor 
 of the Province of Upper Canada has long since set at 
 liberty and permitted to return to his home ;) and there 
 was no proof given, that I had been at any other time, 
 after the passage of the act, within Her Majesty's do- 
 minions. 
 
 As to my having committed hostilities within the Pro-' 
 vince, subsequent to the passage of the act of the 12th 
 of January, there was no proof offered, nor was I charged 
 with any such offence. 
 
 It is true, my Lord, that at the time of my capture, 
 myself and companion had with us two inefficient old 
 swords ; but I submit to your Lordship if that circumstance 
 alone can be so tortured and strained as to bring me 
 within the Charge of being in arms against Her Majesty. 
 It would, I conceive, be as rational to talk of an infant 
 having been in array against its parent with a tea spoon. 
 To have been in arms against Her Majesty, it was neces- 
 sary I should, at the time, have been in some manner 
 connected with a military force, sufficient to have resist- 
 ed, in a measure at least, Her Majesty's authority. Had 
 I been captured while on Navy Island, or at any other 
 place in the Province, at the head of and directing, or in 
 any. manner aiding an armed force, with but a spy glass 
 in my hand, I could not then deny I was in arms against 
 Her Majesty, because, forsooth, I carried no offensive 
 weapons about my person. Suppose, then, I had been 
 taken, while quietly walking alone in the streets of 
 Toronto, or in company with another individual, armed 
 like a Turk, with pistols, dirk and sabre, but not 
 connected with any body of men, by what rule of reason- 
 ing, or application of common sense, could it be maintain- 
 ed under such circumstances, "that I was in arms against 
 
52 LETTER TO LORD DURHAM. 
 
 Her Majesty," or that I had thereby offended within the 
 intent and meaning of this act of the 12th of January. 
 The offence with which I w^as Charged^ is, in its sense, 
 the act of levying war against Her Majesty, with her re- 
 bellious subjects — and nothing less. Any hostilit}^, or 
 aggression committed by one or two individuals 
 would be an assault and battery, or an offence of some 
 other description or denomination within the purview of 
 the civil laws of the Province ; the provisions of which, 
 against such offenders, could readily be enforced by the 
 aid of a special constable or two, and needed not the assis- 
 tance of this most extraordinary penal act, and a Court 
 Martial. It seems, however, that the application of this 
 act of the 12th of January to me, taking any view of the 
 proof, was altogether retrospective in its effect ; and there- 
 fore, as an ex 'post facto law, comes under the objections 
 I have raised to the application of the law of the 6th of 
 March. The circumstances of my having been upon the 
 ice at the head of Lake Erie at the time of my capture, 
 even if I had been within the limits of Upper Canada, 
 and but a mile and a half from its shores, constituted no 
 offence of itself; and this is all I have been charged 
 with having done since the 12th of January. 
 
 The attempt to prove that I was " oh or about the 26th 
 day of December last, [or at any time before or after] at 
 Navy Island, in the District of Niagara, in the Province 
 of Upper Canada, joined to William Lyon Mackenzie," or 
 any others, subjects of her Majesty the Queen, was an 
 equal failure, as I have before noted to your Lordship ; 
 as there was not even an offer of any proof whatever, to 
 show that William Lyon Mackenzie, with whom it was 
 alleged I had been joined, was a subject of Her Majesty ; 
 nor was there one jot or tittle of evidence given upon my 
 trial to establish the fact alleged in the Charge^ that 
 
LETTER TO LORD DURHAM. 53 
 
 Mackenzie, or any other of Her Majesty's subjects, with 
 whom it was alleged that I had been joined, " were trai- 
 torously in arms against Her Majesty, on or after the 12th of 
 January last, within the limits of the Province of Upper 
 Canada ;" and without the establishment of such facts, 
 by sufficient proof, the Charge remained unsupported. — 
 Yet, in defiance of these palpable defects in the proof — 
 and when it was evident I was justly entitled to an ac- 
 quittal, the Court Martial adjudged me guilty of the 
 Charge. 
 
 It will not be improper for me now, I trust, to exhibit 
 to your Lordship wherein I think my case has been sub- 
 jected to an undue influence. About the same time that 
 my trial commenced, (which was not concluded for nearly 
 forty d-ays,) a British subject by the name of Edvi^ard A. 
 Theller, who is now imprisoned in this fortress, was put 
 upon trial upon an indictment for treason. He had been 
 engaged in one of the revolutionary movements of Upper 
 Canada, with which I was connected, and became a prison- 
 er ; whereupon, being a natural born subject of Her Majes- 
 ty, an indictment for treason was preferred against him. 
 Upon his trial, Theller alleged that he had been created a 
 citizen of the United States; and set up the plea, that 
 therefore, he could not be legally charged for treason, as 
 a subject of Great Britain. The plea, however, availed 
 him nothing on his trial, and he was condemned and 
 sentenced to be executed ; and when he again urged it 
 to the Lieutenant Governor, as a ground for a respite 
 until the opinion of Her Majesty's Government in Eng- 
 land could be taken in the case, it still seemed to avail 
 him nothing, until it was understood that the Govern- 
 ment of Upper Canada had come to the conclusion to deal 
 with its political offenders by classification; then, this man, 
 together with his friends, (among whom he might num- 
 
 5* 
 
54 LETTER TO LORD DURHAM. 
 
 ber the most of the people of his particular country, in 
 Toronto,) laid hold of me as an available sacrifice, to 
 gain him a respite, which it was believed would be the 
 means, at least, of saving his life. To this course, Thel- 
 ler the more readily resorted as he was aware that I held 
 his conduct at the time of his capture, as any thing but 
 creditable to himself. At this time, my case had been 
 determined, and it was then urged upon the Lieutenant 
 Governor, Sir George Arthur, that it would be very 
 illy received by a portion of the inhabitants of the Pro- 
 vince, (his particular countrymen,) if Theller should be ex- 
 ecuted, since I, one whom they alleged was a much great- 
 er offender, had not been subjected to capital punish- 
 ment ; and to give weight to their arguments, all my acts 
 were greatly magnified, and both my character and con- 
 duct most grossly misrepresented ; whereby I may well 
 suppose the mind of Sir George Arthur, w^ho knows 
 nothing of me, but by the partial representation of Thel- 
 ler's friends, and others, who are far from being friends 
 to me, has been much poisoned and embittered towards 
 me ; and it has been suggested to me, (with how much 
 justice I cannot say,) that without this influence, I had 
 long since, and while yet in Upper Canada, been releas- 
 ed from imprisonment by the Lieutenant Governor of that 
 Province, instead of being sent here, to be detained. 
 
 You may ask, my Lord, what proof have I that this 
 course, of which I complain, has been pursued towards 
 me ? I answer, as one evidence, I have before me a 
 printed document emenating from one of the Common 
 Council Men of the city of Toronto, from which I tran- 
 scribe the following paragraphs : 
 
 " On its being made public that the life of Sutherland, 
 (who was tried by a Court Martial as an American 
 citizen,) had been spared, it occured to some of the 
 
LETTER TO LORD DURHAM. 55 
 
 g-entlemen, who afterwards waited upon his Excellency, 
 that it might possibly produce an evil effect on the 
 minds of the Irish inhabitants of the Province, .were 
 the commander-in-chief of the pirates to escape with 
 secondary punishment because he was an American 
 citizen;, while his subordinate, was doomed to suffer 
 the utmost penalty of the law, for the same crime, 
 with the sole difference that the latter convict was a 
 natural horn subject of Great Britain, and by birth an 
 Irishman. 
 
 " We accordingly waited upon his Excellency to the 
 number of eight, who were as follows : Aldermen — 
 Dixon, Armstrong, Stotesbury and Taylor ; Common 
 Council Men — -Craig, Trotter, Brown and Dr. King. 
 
 " His Excellency received us with the greatest polite- 
 ness, and condescended not only to listen to our argu- 
 ments, but also to enter into conversation upon it with 
 most of us at considerable length; and I am sure 
 that those who were with me will agree that far from 
 giving us any hope that the consideration we urged 
 had prevailed, we were given to understand that it 
 was not one upon which his Excellency could act. 
 
 " Afterwards his Excellency did me the honor of send- 
 for me, and of informing me that the prisoner had been 
 respited until Her Majesty's decision could be had upon 
 the case; and his Excellency further informed me that 
 the question which was to be submitted to Her Majesty's 
 Government, was one of a legal character; and that he 
 thought it necessary to state this to me, lest a false im- 
 pression might be on my mind, or go abroad, that the 
 prisoner was respited on any argument advanced by us. 
 (Signed,) "JOHN KING." 
 
 These paragraphs, afford most indubitable evidence 
 that there was an attempt made to influence the Lieu- 
 
54 . . LETTER TO LORD DURHABI. 
 
 ber the most of the people of his particular country, in 
 Toronto,) laid hold of me as an available sacrifice, to 
 gain him a respite, which it was believed would be the 
 means, at least, of saving his life. To this course, Thel- 
 ler the more readily resorted as he was aware that I held 
 his conduct at the time of his capture, as any thing but 
 creditable to himself. At this time, my case had been 
 determined, and it was then urged upon the Lieutenant 
 Governor, Sir George Arthur, that it would be very 
 illy received by a portion of the inhabitants of the Pro- 
 vince, (his particular countrymen,) if Theller should be ex- 
 ecuted, since I, one whom they alleged was a much great- 
 er offender, had not been subjected to capital punish- 
 ment ; and to give weight to their arguments, all my acts 
 were greatly magnified, and both my character and con- 
 duct most grossly misrepresented ; whereby I may well 
 suppose the mind of Sir George Arthur, who knows 
 nothing of me, but by the partial representation of Thel- 
 ler's friends, and others, who are far from being friends 
 to me, has been much poisoned and embittered towards 
 me ; and it has been suggested to me, (with how much 
 justice I cannot say,) that without this influence, I had 
 long since, and while yet in Upper Canada, been releas- 
 ed from imprisonment by the Lieutenant Governor of that 
 Province, instead of being sent here, to be detained. 
 
 You may ask, my Lord, what proof have I that this 
 course, of which I complain, has been pursued towards 
 me ? I answer, as one evidence, I have before me a 
 printed document emenating from one of the Common 
 Council Men of the city of Toronto, from which I tran- 
 scribe the following paragraphs : 
 
 "On its being made public that the life of Sutherland, 
 {who was tried by a Court Martial as an American 
 citizen,) had been spared, it occured to some of the 
 
LETTER TO LORD DURHAM. 55 
 
 gentlemen, who afterwards waited upon his Excellency, 
 that it might possibly produce an evil effect on the 
 minds of the Irish inhabitants of the Province, .were 
 the commander-in-chief of the pirates to escape with 
 secondary punishment because he was an American 
 citizen^ while his subordinate, was doomed to suffer 
 the utmost penalty of the law, for the same crime, 
 with the sole difference that the latter convict was a 
 natural horn subject of Great Britain, and by birth an 
 Irishman. 
 
 " We accordingly waited upon his Excellency to the 
 number of eight, who were as follows : Aldermen — 
 Dixon, Armstrong, Stotesbury and Taylor ; Common 
 Council Men — -Craig, Trotter, Brown and Dr. King. 
 
 " His Excellency received us with the greatest polite- 
 ness, and condescended not only to listen to our argu- 
 ments, but also to enter into conversation upon it with 
 most of us at considerable length ; and I am sure 
 that those who were with me will agree that far from 
 giving us any hope that the consideration we urged 
 had prevailed, we were given to understand that it 
 was not one upon which his Excellency could act. 
 
 " Afterwards his Excellency did me the honor of send- 
 for me, and of informing me that the prisoner had been 
 respited until Her Majesty's decision could be had upon 
 the case; and his Excellency further informed me that 
 the question which was to be submitted to Her Majesty's 
 Government, was one of a legal character; and that he 
 thought it necessary to state this to me, lest a false im- 
 pression might be on my mind, or go abroad, that the 
 prisoner was respited on any argument advanced by us. 
 (Signed,) " JOHN KING." 
 
 These paragraphs, afford most indubitable evidence 
 that there was an attempt made to influence the Lieu- 
 
56 LETTER TO LORD DURHAM. 
 
 tenant Governor in behalf of this Theller, at my expense; 
 and that too, by individuals of no moderate standing and 
 influence ; and although the statement of Dr. King, goes to 
 deny the success of the attempt, as toTheller's benefit, it 
 will be perceived he does not even profess to negative the 
 presumption of its effect upon my case, to which the real 
 ground assumed by the Lieutenant Governor in granting 
 the respite is immaterial. It was natural that Sir George 
 Arthur should have been predisposed to act against me ; 
 and as, under such circumstances, men are often moved 
 by influences of which they are themselves insensible, 
 it will not, I hope, be regarded as disrespectful to Sir 
 George Arthur to suggest, that although the arguments 
 of Dr. King, and the other friends of Theller, had no 
 Aveight to influence His Excellency in Theller's behalf, 
 they may, nevertheless, have had great weight to in- 
 fluence his deter minatio7i in regard to me. For, you will 
 perceive, my Lord, they solicited no favor for Theller, on 
 the ground of the merits of his case, but for the reason, 
 as they assumed, that I was a worse enemy than he ; a 
 ground as extraordinary to be taken, as the facts alleged 
 were unreal, and their course of argument negative to the 
 opinions of the whole civilized world. 
 
 That we were both chargeable with the same oflence 
 against Her Majesty's Government, " with the sole dif- 
 ference that Theller was a natural born subject of Great 
 Britain," is most true. But national policy, as well 
 as individual justice, makes that difference, as I humbly 
 conceive, a very great and important one. To sustain 
 the government from the aggressions of its enemies, 
 Great Britain had no claims upon me. She could de- 
 mand from me no more than that I should keep ofl^ my 
 hands ; and in assaulting the Government, I made myself 
 no more than an open and public enemy, to be disposed 
 
LETTER TO LORD DURHAM. 57 
 
 of as I have before premised. Not so in his case. By 
 birth he owed allegiance to the Government of Great 
 Britain, which required him not onl}^ to stay his own hand, 
 but to bear arms to sustain it from the ruthless attacks 
 of others. In the dominions of Great Britain he had been 
 educated, and from the government he had received emol- 
 ument, (as I am imformed,) which claims his gratitude ; 
 and for his offence, the laws to which he owed obedience 
 prescribed the penalty ; and if there may be any credit 
 given to his own words, the only property he has any 
 claim to on the face of this earth, is an interest, by his 
 wife, in an estate in the District of Montreal, in this Pro- 
 vince ; and it was, as he has informed me, with a view 
 to better his claim to that estate, that he took up arms to 
 sustain the revolution. To me, the motive which af- 
 fords the least apology, is that which has moved the British 
 people, in more instances than one, to acts similar to mine, 
 in other countries ; and that which moves the officer 
 of all civilized nations to enter foreign service. Then, 
 again, I have this difference in my favour ; I was cap- 
 tured on the waters of Lake Erie, within the jurisdiction 
 of the United States, as I believe I can clearly establish, 
 and not until after I had abandoned the cause of the re- 
 volutionists of my own accord ; whereas Theller was 
 captured decidedly within the Province of Upper Canada, 
 and in the very act of his aggression. 
 
 As to the alleged fact that Theller had been made a 
 citizen of the United States, in pursuance of the laws of 
 the Republic for the naturalization of foreigners, I have 
 no knowledge. I would beg to suggest, however, that if 
 he had been made such citizen, when he took up arms 
 violently to assault the Government of Great Britain, with 
 which the United States were on terms of peace and 
 amity, he lost the character of an American citizen, as 
 
58 LETTER TO LORD DURHAM. 
 
 he thereby alienated himself from the Government of the 
 United States ; and it is not alone to be perceived by 
 a lawyer, that the moment he stepped his foot within 
 Her Majesty's dominions, in the attitude of hostility, he 
 stood there in the naked character of a subject, and as 
 fully amenable to all the laws of the realm, and the pains 
 and penalties of treason, as if he had never been beyond 
 its limi:;s ; and this, my Lord, is all the question of a 
 legal character raised by Theller in his defence, and 
 which Sir George Arthur had to submit to Her Majesty's 
 Government for a decision. 
 
 In another view, the arguments adduced by Dr. King 
 and his associates in behalf of Theller, to the detriment 
 of my case, were extremely unjust in their premises. 
 The case fairly stated is this: A portion of Her Majes- 
 ty's subjects, lately inhabiting the Provinces of the Cana- 
 das, (of which this same man is one,) came to our coun- 
 tryand complained to us of political grievances, and ex- 
 cited our sympathy by the relation of a multitude of 
 wrongs, and asked our aid in their quarrel. As would an 
 advocate listen to the oppressed, so did we hearken to their 
 stories, (and true or false, it is immaterial to the case,) we 
 believed them, and consented to espouse their cause — and 
 with them were defeated; and so acting in behalf of those 
 who had made us their agents, not with the offer of gain, 
 but by appealing to our sympathies, according to the rea- 
 soning of those gentlemen, we are to be adjudged worse 
 offenders than the principals in whose employ we were, 
 and at whose instigation we had moved in the matter ; 
 and tbis was to be done, in my case, without even the ap- 
 plication of the judicial rule of looking into the facts 
 as they appeared upon legal investigation. What I am 
 now stating, my Lord, is not merely argumentative, but 
 facts — facts notorious and not subject to be controverted. 
 
LETTER TO LORD DURHAM. 59 
 
 In the affairs of these Provinces I have had no direct per- 
 sonal interest, and only acted as a volunteer officer. 
 Theller never professed to he a volunteer; he declared 
 himself to be acting in his own behalf, and for his own 
 country, and on his very trial at Toronto, wore the uni- 
 form and badges which were assumed to distinguish those 
 who professed to belong to the Provinces, from the Ameri- 
 can volunteers. (7.) 
 
 (7.) To continue the absurdity, this man, Theller, after being taken 
 out of the casemates of the Citadel of Quebec by his Canadian friends, peti- 
 tioned the Congress of the United States for the enactment of a national 
 law " to prohibit the British Government from trying any of its subjects 
 for treason, who had emigrated to this country, and under our laws been 
 naturaiiijed, and who were then taken inarms againstthat government;" 
 and his petition being put into the hands of Mr. Senator Clay, he to car- 
 ry out the joke, presented it to the Senate. What vt'ould such a law 
 avail, and who would be bound by it if enacted 1 Not Great Britain, 
 certainly. 
 
 Let us suppose it should be settled and established by negotiation be- 
 tween the two governments, that the subjects of Great Britain emigra- 
 ting to the United States, and becoming naturalized as citizens by our 
 laws, should be regarded as citizens by the British Government; what 
 would such a contract amount to in case of a war between the two coun- 
 tries, when all former contracts would be disregarded ? and I trust that it 
 would never be asked by the government of the United States, nor con- 
 ceded by the British, that adopted citizens, who make war on their own 
 account, while the governments are on terms of peace and amity, should 
 have a protection that is not given to natural born citizens. 
 
 I propose^o examine this questien a little further for the satisfac- 
 tion of some of our naturlized citizens. It is asked by them, that the 
 Governmerft of the United States should obtain from the Government of 
 Great Britain, by negotiation, a stipulation on the part of that govern- 
 ment to relinquish all claim for allegiance from such of their subjects as 
 shall emigrate to this country and become citizens of the United States 
 by our naturalization laws. If this measure should be proposed by our 
 government and acceded to by that of the British, it could only be car- 
 ried out by the enactments of the British legislature, declaring " that all 
 British subjects who should absent themselves, (for a term of years to 
 be agreed upon and specified,) from their dominions, should be deemed 
 aliens, as well as the children born of their bodies in foreign countries;" 
 and the British would be sure to require a corresponding enactment from 
 our national legislature. By the existing laws of Great Britain, (and the 
 same principle is embraced in our own laws,) any individual born in 
 their dominions is a subject, and nothing that can be done, will deprive 
 him of that character; and all children born of British subjects in foreign 
 countries are regarded as subjects also. Hence, it will be perceived, 
 that by the existing laws, a British subject may emigrate to this country, 
 become naturalized as a citizen, and abide here for any length of time: 
 and then, should it become his interest or his desire to return to the land 
 of his birth, he may do so, and there possess all the privileges of a sub- 
 
60 LETTER TO LORD DURHAM. 
 
 This, my Lord, is not the only evidence of my case 
 having been subject to an irregular and improper in- 
 fluence. At the time my trial commenced at Toronto, 
 the administration of the Government of the Province of 
 Upper Canada was in the hands of Sir F. B. Head, and 
 no trials for treason had then taken place. On the 23d of 
 March, during the progress of my trial. Sir George Ar- 
 thur arrived at Toronto and assum.ed the reins of the go- 
 vernment. At the moment of his doing so, I learn from 
 a despatch of His Excellency to Lord Glenelg, that he 
 was informed by his Executive Council, it was almost 
 universally expected " that the severest penalty of the 
 law would be visited upon all the leaders, and most 
 guilty traitors" — but he continues to sa}^ — " the mem- 
 bers of the Council, themselves, saw the difficulty of pro- 
 ceeding to extremes, where so large a number of per- 
 sons were concerned;" and that then " much considera- 
 tion was given to forming some plan of classing the offen- 
 ders." (I quote from the document which is now before 
 me.) Before my trial had been concluded, a number of 
 convictions for treason, (in addition to that of Theller's,) 
 had taken place, among which were those of Lount and 
 Mattheivs^ who were sentenced to be executed on the 13th 
 of April, then next following. In behalf of these men, 
 (Lount and Matthews,) great exertions were made to save 
 them from the utmost penalty of the law ; and in three or 
 four days, (says the despatch,) petitions signed by no less 
 
 ject, as if he had never been absent from his country; and the children 
 of British subjects born in this country, have the privilege of choosing 
 between the United States and the British dominions for a residence; 
 and they may regard themselves as citizens or subjects, as it shall best 
 suit their interest or wishes. To attain the stipulation proposed, all these 
 immunities must necessarily be surrendered; and all British subjects who 
 take up their residence abroad must as necessarily be made subject to the 
 regulation. But it is not to be supposed that all ol the British subjects 
 who have taken up a residence in the United States, or even a majority 
 of them, are wishing to become aliens to the land ef their birth, while 
 they would gain nothing by it, 
 
LETTER TO LORD DURHAM. 61 
 
 than eight thousand persons had been presented in their 
 favor ; which, however, availed them nothing. But, when 
 it became known that the Lieutenant Grovernor would 
 not interfere with the course of the law in the case of 
 Lount and Matthews, it was at the same time understood 
 by the public, that while the Government had determined 
 that some of those whom they considered the most guilty 
 offenders should suffer death, it was their intention to re- 
 duce that namher to a very few. Then, as it was to be 
 expected, commenced the struggle of the friends of each 
 who was considered in danger, to make some others ap- 
 pear those greater offenders, who should be included in 
 the few destined to suffer the most severe punishment. 
 While this was going on, my case was brought to a de- 
 termination by the Court Martial — and the Government — 
 and the result made public. . I was then, at once, seized up 
 on by the friends of all those who were dangerously impli 
 cated, as the means to stop the avenues to the scaffold; 
 and although the true circumstances of my case were but 
 very little known, and less understood, yet almost every 
 one of the very persons at whose hands I thought I had a 
 right to demand favor, took occasion to proclaim " that 
 the Government could not consistently suffer any more ex- 
 ecutions, since /, whom they declared to have been one of 
 the worst of criminals, had heen suffered to go off with 
 secondary punishment ; and it is a known fact that there 
 were no more executions for offences then committed. 
 Thus it was, while one party, for the charitable purpose 
 of serving their friends, took care so to represent me to the 
 Lt. Governor, that I should appear the chiefest of offenders, 
 and as deserving the worst of punishment, the ultra loyal- 
 ists, (who seemed to have looked upon me, as does a child 
 upon the fingers of a watch, who, when beholding them in 
 their office of pointing the hours, never suspects that their 
 
 6 
 
62 ' LETTER TO LORD DURHAM. 
 
 movements are not of themselves, but by the influence of 
 a machinery, as the mechanic will tell, consisting of 992 
 individual parts,) did their best endeavors to hare such 
 punishment fixed upon me. 
 
 It needs no further explanation to show how seriously 
 all these matters have,, heretofore, and must still, aflfect 
 my interest. The party whose cause I had once espoused, 
 was then discomfitted and broken up ; and the individuals 
 who composed it, like the pieces of a shattered bark upon 
 the waters, were made to strike and mar each other, as 
 each, struggled individually to save himself; and none 
 thought it unjust to exhibit me as the instrument that had 
 done the wrong, though they hid the hand that used it. 
 While I have thus been borne down by a current of evil 
 influences, I have seen others released and returned to the 
 bosoms of their families and friends, whose influence 
 with the Revolutionists of these Provinces, in comparison 
 to mine, has been as a mill-stone to a feather; and whose 
 conduct in the matter of the late insurrectionary move- 
 ments would be as scarlet, while mine should be as wool. 
 If it be remembered, my Lord, that I come from a coun- 
 try where it is held a political text, " that to secure life, 
 liberty and the pursuit of happiness, governments are in- 
 stituted among men, deriving all their just powers from 
 the consent of the governed ; and that when any form of 
 government becomes destructive of those ends, it is the 
 right of the people to alter or abolish it, and to establish 
 a new form of government, laying its foundations on such 
 principles, and organizing its powers in such forms, as to 
 them shall seem most likely to effect their safety and hap- 
 piness" — that I am a citizen of a republic whose people 
 begin their history as a nation with that of a fierce and 
 bloody conflict with the people of Great Britain — of a 
 country whose heroes " of story and of song" are only 
 
• LETTER TO LORD DURHAM. * 63 
 
 those who have " measured steel*,''' aind " clashed iheir 
 arms," with Britons, and against colonial rule — and in 
 whose 'struggle for independence against the domination 
 of the British Government, the aid of , foreign volunteers^ 
 greatly, if not mainly, Contributed to its success, when an 
 insurrection was proclaimed in these Provinces, and num- 
 bers of the agents of the revolt had come among us and 
 related their grievances, which were similar in nature 
 and character, as we believed, to those which our fore- 
 fathers had been subjected to by the British Government, 
 while it had the power of coercion, and which had in- 
 duced them, in 1775, to make iheir appeal to arms, your 
 Lordship could hardly have been surprised to hear 
 that I with my countrymen, had lent a willing ear to the 
 detail of wrongs given to us by those agents ; and that our 
 minds should have then naturally reverted back to the 
 lessons of our school books, in which, during our juvenile 
 days, we had learned the stories of such volunteers in the 
 early and hazardous cause of our own country, as Lafay- 
 ette, Steuben, De Kalb, Kosciusko and Pulaski ; and when 
 the standard of revolt had been raised, and the banner of 
 liberty once unfurled in these Provinces, your Lordship 
 could not have been disappointed to find that I, as well as 
 many others of my countrymen, were found as volunteers 
 around it. For it had been made to appear to us, that 
 there was to he a struggle for liberty, in which a large 
 majority of the people of the Canadas were willing and 
 ready to embark ; and we felt that we were called upon 
 to discharge ourselves from a debt of gratitude which we 
 had been taught we owed. Such, with the desire to ob- 
 tain the small share of applause which might ch^Qce to 
 accrue to one of the humble agents in the establishment of 
 another Independent Republic on the continent of America, 
 were the moving inducements for my embarking, as I did. 
 
64 LETTER TO LORD DURHAM. 
 
 ill the undertaking, for which I am now heing made to 
 suffer. 
 
 It has never been denied by me, that I was for some 
 time in the months of December and January last con- 
 nected, as a military officer, in the manner I have before 
 stated, with forces which have been in arms in Up- 
 per Canada, for the purpose of subverting Her Majes- 
 ty's authority in that Province, and to establish in its 
 stead an Independent Republican form of government. 
 Neither will I now pretend that I was at all ignorant of 
 the danger in which I v/as placed by connecting myself 
 with so hazardous, and as to its result, doubtful underta- 
 king. I was at the time, my Lord, full)" aware that while 
 on the one hand, success would add to my name a " title 
 of glory," and accord me such praise as " wits could 
 imagine and poets sing," on the other hand, aside from the 
 common dangers of the field, a defeat or failure might 
 leave me but the tenant of a dungeon — with a yallet of 
 straw. 
 
 In my conduct, I have been charged with having acted 
 " contrary to the express injunciio7is of the gvvernment of 
 my oion country^'' and of having contravened its laws. 
 Yet, it is, nevertheless, notorious that I did not act against 
 the will of the people. Until several insurrectionary 
 movements had taken place in these Provinces, and until 
 I had been present at respectable and numerously attend- 
 ed public meetings in my own country, at which the poli- 
 tical condition of the Canadas was under consideration, 
 and I had heard the cause of the Revolutionists of these 
 Provinces advocated by men the most talented and es- 
 teemed of my country, I had no connection with any of 
 the people of the Canadas ; and until then, I had in no 
 manner interfered with the political affairs of the Pro- 
 vinces : and when, at a public meeting held in the cit}' 
 
LETTER TO LORD DURHAM. 65 
 
 where I resided, (at which meeting it was estimated by 
 the public prints, " that about every voter was present" 
 of a population of 20,000,) I mentioned my willingness to 
 be employed as a military officer in the attempt that was 
 then being made to establish an Independent Republican 
 form of Government in Upper Canada ; the announcement 
 was received with cheers ! and when, (after I had left 
 Navy Island,) I was passing from one extreme to the oth- 
 er of the American frontiers for the accomplishment of 
 the objects of the revolutionary movements in which I 
 had embarked, at every stopping place on my route, there 
 was given me the most flattering reception. Indeed, un- 
 til I withdrew myself from further acting with the Pat- 
 riots, or Revolutionists of Upper Canada, (which was on 
 or about the 5th of Februrary, 1838,) wherever I appear- 
 ed I was met with applause and demonstrations of ap- 
 proof. 
 
 Had I not then, my Lord, every reason to believe I was 
 pursuing the wishes of my countrymen ? and your Lord- 
 ship could not expect it to be otherwise than that the peo- 
 ple of the United States should be disposed to aid any at- 
 tempt, which seemed to promise success, made to estab- 
 lish similar institutions to their own in these Provinces, 
 although the Government, technically considered, might 
 be opposed. Their every day intercourse with the peo- 
 ple of the Canadas, and the very fact of their being sat- 
 isfied with their own form of government would lead them 
 to the act. 
 
 I would suggest to your Lordship that I find in the his- 
 torical records of Great Britain, innumerable instances in 
 the conduct of the subjects of that country which go far 
 to excuse, if not to justify my own. 
 
 If I have read correctly, a large body of British troops, 
 raised in Scotland, with Gustavus Adolphus, traversed a 
 6* 
 
66 LETTER TO LORD DURHAM. 
 
 great part of Europe, and mainly assisted in bursting the 
 galling bands of Germany ; and those troops were led by 
 the Marquis of Hamilton, a man of the first distinction 
 and consequence in his country, the personal friend of 
 the king, from whom, however, he had no license. 
 
 It is also notorious, and a well authenticated matter of 
 historical record, that during the conflict of arms which 
 took place at the several revolts of the late Spanish Pro- 
 vinces in America, many British gentlemen of known 
 honor and probity of character, entered the contest in be- 
 half of the Revolutionists of those Provinces and served 
 against Spain, while the government of that country was 
 on terms of peace and amity with Great Britain ; and 
 largely contributed in achieving the independence of 
 those countries. Among the names of the most promi- 
 nent of such British volunteers stand those of Lord Coch- 
 ran and Sir Gregor McGregor ; and if my information be 
 correct, this same Lord Cochran, at the time he was car- 
 rying his arms against the Spanish Government under the 
 flag of its rebellious subjects, was a Peer of the realm, 
 and held a seat in the highest legislative body of the 
 British Empire. 
 
 Also, in 1825, (if I am correct in the date,) another 
 Peer of Great Britain, Lord Byron, joined himself with 
 the people who were then in a state of revolt in one of 
 the Provinces of the Turkish Empire, while the Porte 
 was on terms of peace and amity with the Government 
 of Great Britain ; and during his career in the Morea, 
 which was brought to a close in a few short months by 
 his Lordship's decease, he largely contributed to sustain 
 the insurgents : and, also, at or about the same time 
 Lord Byron entered Greece, another gentleman from 
 England, with two hundred British officers, entered that 
 country and espoused the cause of the insurgents of the 
 
LETTER TO LORD DURHAM. 67 
 
 Morea, without any permission, as it is known, from the 
 Monarch of their country, and while there Avas yet no 
 rupture between their's and the government of the Sul- 
 tan: Although a subsequent act of the British Govern- 
 ment would seem a tacit adoption of those proceedings 
 of British subjects; as shortly after the occurrence of 
 the transactions I have mentioned, Sir Edward Codring- 
 ton, in command of a British naval force, assisted by a 
 French, and a Russian squadron, without a declaration of 
 war, and without any apparent justification, (except as a 
 matter of assistance to the Greek Revolutionists,) attack- 
 ed the Turkish squadron in the Bay of Navarino, and to- 
 tally destroyed it ; and this act was decidedly approved 
 of by the British Government, and as a mark of honora- 
 ble distinction for his conduct on that occasion, the admi- 
 ral had conferred on him the order of knighthood by his / 
 sovereign. 
 
 Then, by noticing the occurrences of a more recent 
 date, it will be found that but a few years since, an ex- 
 Emperor of Brazil, Don Pedro, engaged in England a' 
 number of British officers and soldiers, with whom he 
 sailed from London for Portugal, where by their assis- 
 tance, he was enabled to effect a political revolution in 
 that Kingdom. 
 
 It may be further observed, that at this very time, a 
 body of British officers and soldiers, assuming to be 
 known as a British Legion, is engaged in Spain, in con- 
 junction with a native party, in maintaining a civil war 
 within that country ; and this body of British subjects, 
 as it must be well known to your Lordship, was lately 
 commanded and led by a very popular member of the Bri- 
 tish House of Commons, (8.) who for his gallantry at the 
 
 (8.) General Sir William Evans. 
 
6S LETTER TO LORD DURHAM. 
 
 head of the Legion, has recently been honored with the 
 order of Knighthood by the sovereign of Great Britain. 
 
 It is also true, if public report be not grossly in error, 
 that there are, at this very moment, a number of British 
 subjects engaged in arming and sustaining the people of 
 Circassia, one of the Provinces of Russia, against the Go- 
 vernment of that Empire, and as it is said, if not by the 
 expressed consent, without any objection or hindrance on 
 the part of the British Government. 
 
 Then, my Lord, if such instances of foreign interfe- 
 rence be just, and the British subjects I have mentioned 
 were right in their acts, I am at a loss to discover by 
 what rule I am adjudged a criminal and condemned as a 
 felon. 
 
 I allov/ this principle, my Lord, that if the forces to 
 which I was joined on Navy Island, or at any other place 
 in the Province of Upper Canada, had been attacked by 
 Her Majesty's troops, while I was with those forces, and 
 overcome, it was for the conquerers to give me quarter or 
 not, as they saw fit ; and if so made a prisoner, the right to 
 have detained me, without trial, so long as it might 
 please Her Majesty, as a prisoner of war, is not to be 
 questioned. But, I know not where, in the annals of 
 civilized nations, a precedent may be found for the tri- 
 al of a foreigner, by any court, taken under the circum- 
 stances attending my capture. It is true, however, that 
 during a late revolution in Portugal, Don Miguel, a mod- 
 ern Caligula, whose whole history is but the detail of 
 atrocities, upon taking as prisoners some of the British 
 employed against him, caused them to be shot; and that 
 the Spanish Pretender, Don Carlos, has also caused 
 some of the British legion, who had fallen into his hands 
 as prisoners, also to be executed. But, in neither case 
 do we hear of any trials. They were mere acts of expe- 
 
LETTER TO LORD DURHAM. 69 
 
 diency, adopted by weak and trembling powers, at the 
 caprice of the moment ; and which have been pronounc- 
 ed murder by all of the enlightened and civilized of man- 
 kind — who would now rejoice as much in the destruction 
 of Don Carlos, as they have done at the overthrow of 
 Don Miguel. 
 
 Well seated power and conscious strength is always for- 
 bearing and merciful. Injustice and cruelty are ever with 
 the reverse. Bonaparte, standing upon his last foothold 
 in Egypt, and beholding it fast crumbling beneath him, 
 upon the pretext of expediency put to the sword four thou- 
 sand Turks whom he had captured at Jaffa and El Arish ; 
 and a Mexican leader, Santa Anna, lately caused to be 
 massacred some hundreds of unarmed Americans, who 
 had surrendered to him, on the promise of quarter, in 
 an engagement near Goliad in Texas. But, notwith- 
 standing the wholesale murder on the part of Bonaparte, 
 he was compelled to fly from Egypt , and Santa Anna, 
 within the short space of a few days after the perpetra- 
 tion of the horrifying act on his part, was a prisoner in 
 the hands of the compatriots of those whom he had mur- 
 dered, suing for his own life ; and Mexican rule was at 
 an end in Texas. 
 
 I am, my Lord, constrained to admit, however, that 
 upon searching the historical records of my own country, 
 I find a very near parallel to this course of conduct pur- 
 sued towards me by Her Majesty's Government in these 
 Provinces, with this difference, that the material aver- 
 ments contained in the Charge preferred against me, did 
 not exist, and have in no manner been proven or substan- 
 tiated. About twenty years ago, a number of the In- 
 dian tribes on the south-western borders of the United 
 States, having made inroads into the country, marauded 
 and pillaged the white settlements, and commenced a 
 
70 LETTER TO LORD DURHAM. " 
 
 warfare with our people, when the Government of the 
 United States employed General Jackson, with a small 
 military force, to subdue the turbulent Indians. He en- 
 tered the disturbed district, and there laid his hands on 
 two British subjects, Arhuthnot and Amhrister, whom he" 
 found with the Indians, and who were charged with hav- 
 ing instigated the Indians to commit hostilities against 
 the people of the United States. These men, by an or- 
 der of General Jackson, were tried by a Court Martial, 
 and executed in pursuance of a sentence of that court. 
 This act of General Jackson, was, however, in no man- 
 ner approved of by either the people or Government of 
 the United States. It was termed a *' cold-blooded mur- 
 der," and excited the highest indignation on the part of 
 the people ; and upon the matter being brought before the 
 Senate of the United States, a committee of that body, to 
 whom the matter was referred, brought in a report on the 
 24th of January, 1819, reprobating the conduct of Gen- 
 eral Jackson, in that respect, in the strongest terms. In 
 that report it was said — "In reviewing the • execution of 
 Arhuthnot and Amhrister, your committee cannot but con- 
 sidder it as an unnecessary act of severity on the part of 
 the commanding general, (Jackson,) and as a departure 
 from that mild and humane system towards prisoners, 
 which in all conflicts with savage or civilized nations has 
 heretofore been considered not only honorable to the na- 
 tional character, but conformable to the dictates of sound 
 policy. The prisoners were subjects of Great Britain 
 with whom the United States are at peace. Having left 
 their country and united their fates with the savages, with 
 whom the United States are at war, they forfeited their 
 claim to the protection of their own government, and 
 subjected themselves to the same treatment which might, 
 according to the practice and principles of the American 
 
LETTER TO LORD DURHAM. 71 
 
 Government, be extended towards those with whom they 
 were associated. No process of reasoning can degrade 
 them below the savages with whom they were connected. 
 As prisoners of war, they were entitled to claim from the 
 American Government that protection which the most 
 savage of our foes have uniformly experienced when dis- 
 armed and in our power. Humanity shudders at the idea 
 of a cold-blooded execution of prisoners, disarmed and in 
 the po^^er of the conquerer !" In another portion of that 
 report the committee say — " The principal assumed by the 
 commanding general, (Jackson,) ' that Arbuthnot and 
 Ambrister, by uniting in war against the United States, 
 while we were at peace with Great Britain, became out- 
 laws and pirates, and liable to suffer death,' is not recog- 
 nized in any code of national law. Nothing can be found 
 in the history of civilized nations which recognizes such 
 a principle except a decree of the Executive Directory of 
 Ftance during their short career of madness and folly, 
 which declares 'that neutrals found on board enemies 
 ships, should be considered as pirates.' " 
 
 I have contended, my Lord, as it will be perceived, 
 that I have been trie.d by the provisions of a law enacted 
 by the Provincial Parliament of Upper Canada, aside from 
 any delegated authority from the mother country, and that 
 the law was therefore void in all its bearings ; and I have 
 further contended that if I were guilty of all with which I 
 have been charged^ there was no usage recognized by the 
 civilized nations of the earth, which would justify a trial 
 on any ground. Nevertheless, I cannot but believe your 
 Lordship will readily conceive that when once put upon 
 trial, though a foreigner, I had a right to all the privile- 
 ges of a subject, and was entitled to have my case adjudg- 
 ed by the established legal forms of the country, and ac- 
 cording to the intent and meaning of the laws by which I 
 
72 LETTER TO LORD DURHAM. 
 
 was tried, as expressed in the letter thereof, as much so 
 as if the law had been- constitutionally enacted, and I ame- 
 nable to its provisions. Yet such has not been meted to 
 me ! 
 
 Every code of laws, civil or martial, provides certain 
 forms for the distribution of justice, and every deviation 
 or departure, on the part of judges, from those rules, is 
 no less a violation of the honor and dignity which belong 
 to the tribunals of the nation, than a wrong to the indi- 
 vidual affected by it ; and whenever judges step aside 
 from these forms of the law, to bring even the guilty with- 
 in the pale of their tribunals and judgment, they become 
 themselves transgressors of the law, and are the greater 
 offenders. It was by such conduct alone that the names 
 of a Tresillian and a Jefferies have been immortalized 
 with the most unenviable reputations ; and in turning 
 over the many volumes of reported decisions made by 
 British judges in British courts, since the granting of the 
 Magna Charta by King John, to the present day, it will 
 be found that jurist after jurist have declared that in a 
 country of laws, it is not alone sufficient that the offender 
 be adjudged guilt)^ — hut guilty according to the law and 
 the evidence ; and that on trials involving the life or liber- 
 ty of an individual, a strict adherence to form is in all ca- 
 ses, considered the best security against oppression and 
 injustice. 
 
 By the sentence which has been passed upon me, my 
 Lord, and of which I complain, / stand condemned to 
 transportation, as a felon, for life ; which is no mitigated 
 punishment, but a sentence worse than death ! According 
 to the terms of the sentence, I am to be loaded with irons, 
 and perhaps, chained to some human being most loath- 
 some in person and debased and degraded in mind, and 
 thus dragged from one extremity of the globe to the oth- 
 
NOTE. 73 
 
 er, and there consigned to perpetual slavery, subject to 
 the contumely and lash of some brutal master, or petty 
 official tyrant, with no friends to administer to my dis- 
 tress or soothe my woes, and no companions but the thief, 
 the house-breaker, and the foot-pad. In such a circum- 
 stanced existence, death in any shape would be a boon ! 
 as from education and natural disposition I am likely to 
 be made to suffer most from such a condition of life. The 
 sentence appears to me, (if intended to be carried into ef- 
 fect,) to be a refinement upon cruelty, which no act that I 
 have been charged with could justify; and I appeal to 
 your Lordship to decide, if aught has been proven against 
 me which could justify reducing me to the condition of a 
 felon and a slave. 
 
 With the hope that your Lordship will find an 
 early and convenient day to look into my case, and that 
 your Lordship will make such a determination thereof as 
 shall be dictated by justice and the laws of the British 
 Empire — this communication, 
 
 Is respectfully submitted to your Lordship, 
 For your Lordship's consideration. 
 
 TH : J. SUTHERLAND. 
 Citadel of Quebec, 
 
 July 4, 1838. 
 
 Note. The preceding communication was conveyed to the 
 Castle of St. Lewis, then occupied by Lord Durham as a Govern- 
 ment House; by D. M. Chisholm, Esquire, a captain of the Cold- 
 stream Guards, who had been appointed to have the immediate 
 custody of my person; but Lord Durham happening to be sbsent 
 from Quebec at the time, I was given no reply until the 6th of Au- 
 gust, when I received the following note from one ol his Lord- 
 ship's Secretaries : 
 
 Castle of St. Lewis, f 
 Quebec; 6th August, 3838.5 
 Sir— I am commanded by his Excellency the Governor General 
 to acknowledge the receipt of your letter and statement addressed to 
 
 7 
 
74 NOTE. 
 
 him on the 4th of July last, and to inform you in reply that your 
 case has been referred to Her Majesty's Government in England, 
 with whom alone is vested the power of confirming or altering the 
 sentence which has been passed upon you ; and that their decisica 
 will be communicated to the Lieutenant Governor of Upper 
 Canada. 
 
 I have the honor to be, Sir, 
 
 Your very obedient servant. 
 
 THOMAS E. M. TURTOX, 
 
 Secretary to Government. 
 Th : J. Sutherland, Esquire, 
 
 State Prisoner, Citadel. 
 
(B.) 
 To His Excellency Sir George Arthur, Lieut e7iant. Go- 
 vernor of the Province of Upper Canada, Major Gene- 
 ral, ^c. nolo at Quebec. 
 
 Sir — Since I have been detained a prisoner in this for- 
 tress, and now near two months past, * the Honorable 
 Charles Buller, Chief Secretary of the Administration of 
 Lord Durham, informed me that a despatch had been re- 
 ceived at the office of his Government, notifying " that Her 
 Majesty's Government in England had directed that I 
 should be set at liberty, and permitted to return to my 
 own country, on account of the irregularity of the pro- 
 ceedings on my trial. But, that I should be required to 
 give security not again to enter Her Majesty's domin- 
 ions ;" and some few weeks sin<ie I was further notified 
 by the same honorable gentleman, " that a pardonfoim^ 
 had been transmitted by your Excellency to the office of the 
 Government here, but that on the ground of some infor- 
 mality it contained, it was. found necessary to return it to 
 your Excellency for correction." 
 
 I have also been informed that my case has been re- 
 ferred to your Excellency, for a final disposition, by Her 
 Majesty's Government, and that my present condition is 
 entirely, under your Excellency's direction and control ; 
 and, learning that your Excellency had arrived at Quebec, 
 I have thought that my situation would be a sufficient 
 apology for troubling your Excellency with this commu- 
 nication. 
 
 I beg to inform your Excellency that in regard to the 
 bail which it has been said would be required from me, I 
 liave received no notice, as yet, of the form, nor specifi- 
 cally as to the condition ; but whatever might have been 
 
76 LETTER TO SIR "GEORGE ARTHUR. 
 
 the exactions in either respect, I think I should have been 
 able readily to have complied with them, if the proposi- 
 tion to receive the bail had been made any time within five 
 or six weeks after notice was given me that my release had 
 been ordered. The prolonging of my imprisonment, 
 however, to this late day in the season, when there are 
 few persons here from the upper country, will, I fear, 
 render it quite difficult for me to procure bail at this place, 
 should my release be now offered upon such conditions. 
 But, would your Excellency be pleased to order my re- 
 moval from this place back to Toronto, there, I think, I 
 should find no difficulty in procuring sureties for any re- 
 quired amount. If sent to Kingston, I have reason to be- 
 believe I could effect as much at that place. 
 
 The apparent difficulty which surrounds any attempt 
 of mine to find sureties in any of Her Majesty's Provinces, 
 and more particularly at this place, has induced me to ex- 
 amine the principles of the exaction of bail, and upon 
 such iexamination, with the knowledge of British institu- 
 tions I possess, I am unable to discover in what manner 
 security could be taken from me, either to exclude me 
 from Her Majesty's dominions, or to bind me to keep the 
 peace within them, that would be just and binding in 
 law ; and on this subject I addressed a paper to the Ho- 
 norable Charles Buller, (which I have been informed by 
 him was enclosed to your Excellency,) in which I have 
 contended that there is rto statute or law which ivould le- 
 galize the exaction of such hail or security from me ; and 
 I cannot but think that your Excellency will come 
 to the same conclusion, upon examining the paper transmit- 
 ted to your Excellency, by me, through the Honorable 
 Charles Buller, though all my reasons may not appear 
 cogent, and some of rnY objections may seem far fetched. 
 Yet, if vour Excellency comes to the conclusion that there 
 
LETTER TO SIR GEORGE. ARTHUR. 77 
 
 is no statvite or law in existence, under the express provi- 
 sions of which I may be required to give security as has 
 been exacted, I trust your Excellency will cause me to be 
 set at liberty in my own country without further delay. 
 
 Any undertaking on my own part, which might exclude 
 me from Her Majesty's dominions, would be readily en- 
 tered into and strictly regarded by me for the sake of my 
 liberty ; and if on an examination of the whole matter, 
 your Excellency determines to exact security, the moment 
 I am advised your Excellency is ready to receive it, and 
 I am made acquainted with the form and amount of the 
 security, / will endeavor to procure it ; and I "heg your 
 Excellency will then put me in a condition that shall 
 further the attainment of such security. 
 
 I am aware that unfortunately for me, since my cap- 
 ture, and while I have remained imprisoned in these Pro- 
 vinces, I have been made not only the subject of abuse for 
 the newspaper press, but the theme of the resolves of 
 public meetings, which must also be known to your Ex- 
 cellency. But, believing, as I do, that your Excellency 
 will allow neither the pasquinades of the one, nor the reck- 
 less advice of the other, to have an influence to prevent my 
 obtaining that speedy relief which is allowed me by the es- 
 tablished usages of the country, I feel satisfied that your 
 Excellency will place my release upon the condition of a 
 compliance with no exaction which is not compatible with 
 a liberal application of the laws of the British Empire. 
 
 Should any expression contained in this communica- 
 tion, or in the paper from me, put into your hands by the 
 Honorable Charles Buller, appear to have been couched 
 in terms of too much assurance, I beg your Excellency 
 will regard the fault as resulting from the effects of my pre- 
 sent unfortunate condition, and acquit me of any inten- 
 tion to appear indecorous. I do not wish, either, to be 
 
 •7* 
 
78 NOTE. 
 
 importunate, although I cannot but express my desire of 
 a determination of my case. The misfortunes of my life 
 have taught me patience in adversity. Yet, it is natural; 
 and I hope it will not seem unreasonable, that I should 
 greatly desire to be relieved from the tortures of suspense, 
 and a gloomy imprisonment. 
 
 Very Respectfully. 
 
 TH: J. SUTHERLAND. 
 Citadel of Quebec, ) 
 October 8, 1838. S 
 
 Note. To the preceding communication I received no reply 
 from Sir George Arthur, although it was put into his hands while 
 he was in" Quebec ; and the only answer 1 received to it from any 
 one was the following note from one of the attaches of Lord Dur- 
 ham : 
 
 Castle or St. Lewis, 
 
 Quebec, October 9lh, 1838. 
 
 Sir — I am directed by the Chief Secretary to inform you that 
 
 your own bail will be taken here in Quebec. That in addition to 
 
 ■your personal security, you will be required to get two securities 
 
 in the sum of $2000 each ; and that the condition of the security 
 
 will be, " that in days after your release from Quebec, you 
 
 shall not be in any part of Her Majesty's dominions." 
 I am. Sir, 
 
 Your Obedient Servant. 
 
 EDWARD PLAYDELL BOUVERIE. 
 Th: J. Sutherland, Esquire, 
 
 State Prisoner, Citadel, 
 
(C! 
 To THE Right Honorable Lord Glenelg, Her Majesty^ s 
 
 Seci'etary of State for the CoIo?iies, ^c. ^c. SfC. 
 
 My Lord — Thomas Jefferson Sutherland, a citizen of 
 the United States of America,^now detained a prisoner in 
 the Citadel of Quebec, in the Province of Lower Canada, 
 by Her Majesty's Government, begs leave, again, respect- 
 fully to call the attention of your Lordship to the circum- 
 stances of his detention and imprisonment. 
 ' Could I believe, my Lord, as it was reported to have 
 been" said, in effect, a few months since, by an Honorable 
 Member of the British House of Commons, (L) in his 
 place, " that Petitions and Memorials for relief seldom ar- 
 rive at the departments of Her Majesty^s Government for 
 which they are intended,'''' or, could I believe that when 
 this comes to your hand-, your Lordship would not conde- 
 scend to bestow a few moment's consideration upon the 
 condition of a stranger you now have as a prisoner, I 
 should withhold my pen from these sheets, and resign 
 myself to live out the remainder of my days as the tenant 
 of a dungeon. 
 
 But, my Lord, believing it is otherwise, by your Lord- 
 ship's permission, I would suggest, that having been in- 
 formed by His Excellency Lord Durham, " that my case 
 had been referred to Her Majesty's Government in Eng- 
 land, with whom alone was vested the power of confirming 
 or altering the sentence which had been passed upon me," 
 some time in the month of July last, I drew up a state- 
 ment of the circumstances of my capture, trial, sentence 
 and other matters connected therewith, alleging error in 
 the proceedings taken against me, from which I desired 
 relief, and directing the same to your Lordship, procured 
 (1.) Admiral Sir Edward Codrington. 
 
80 LETTER TO LORD GLENELG-. 
 
 it to be put into the hands of His Excellency Lord Dur- 
 ham, with a note requesting it might be transmitted by 
 him to your Lordship : and having also been advised that 
 a copy of the proceedings of my trial, with my defence, 
 and all the papers and documents connected therewith, 
 had been previously transmitted to your Lordship, I am to 
 suppose, thereby, your Lordship is fully advised of all the 
 original circumstances of my case. 
 
 I would further suggest for your Lordship's considera- 
 tion, that about the 20th day of August last, the Honora- 
 ble Charles Buller, Chief Secretary to the Administration 
 of Lord Durham, gave me notice ^^ that a Despatch had 
 been received at his office, [or that a despatch had passed 
 through his office,] for the Lieutenant Governor of Upper 
 Canada, from Her Majesty^ s Government in England, or- 
 dering my release on the ground of the irregularity of the 
 yj'oceedings on my trials But, at the same time he told 
 me " that Iiuould he required to give security not again to 
 enter Her Majesty'' s dominions. ^^ I was not, however, no- 
 tified of the form of the security that would be required 
 from me until the 8th day of October following, when be- 
 ing informed by one of the captains of the Guards that 
 the Lieutenant Governor of Upper Canada was in Que- 
 bec, I addressed him a letter, of which the annexed, 
 marked B, is a copy, (2.) to which I received in answer, 
 a note from the Honorable Edward Playdell Bouverie, 
 one of the attaches of His Excellency Lord Durham, 
 simply informing me " that in addition to my own recog- 
 nizance, which would be taken at Quebec, I would be re- 
 quired to give two sureties in the sum of £500 each, con- 
 ditioned that in days after I should be set at liberty in 
 
 Quebec, I should not again be found in any of Her Majes- 
 ty^s dominions ; and that such security could alone be ta- 
 ken by the Attorney General of Upper Canada, atToron 
 (2.) The same which precedes this. 
 
LETTER TO LORD GLENELG. 81 
 
 to ; and that so soon as the Attorney General of that Pro- 
 vince should communicate to the Government here, that 
 such security had been filed, I would be set at liberty." 
 
 About the first of October last, I addressed a paper to 
 the Honorable Charles Buller, the substance of which is 
 embodied in this communication, objecting to the justice 
 and legality of the exaction of security from me under the 
 circumstances of my case; which paper, I was informed 
 by that Honorable Gentleman, had been transmitted to the 
 Lieutenant Governor of Upper Canada ; as with him the 
 disposition of my case was left entirely: and, now, my 
 Lord, having done all within my power to efl^ect, (as I 
 am circumstanced,) for the procurement of the sureties re- 
 quired from me, I have not succeeded in obtaining them, 
 and am still detained under the severest condition of im- 
 prisonment, from which I have no good reason to expect 
 release, but from the order of Her Majesty's Government 
 in England, through your Lordship. 
 
 I have objected, as your Lordship will recollect, that 
 the proceedings taken against me before a Militia Gene- 
 ral Court Martial of the Province of Upper Canada, by 
 which I was tried at Toronto in March and April last, 
 were irregular ; and those objections of mine it has been 
 conceded, as I am informed, by Her Majesty's Govern- 
 ment in England, were well taken ; and I have also con- 
 tended, my Lord, that it is properly supposed a general 
 principle, that the laws of every nation are provided for 
 its own citizens or subjects who receive protection from 
 them, and not for the citizens or subjects of another, 
 That they have reference solely to the inhabitants of the 
 country where the laws are enacted, and have force no 
 further than the territories of the government which makes 
 the laws, extend ; and that all who are tried by the laws 
 must be regarded, so far as the matters of the trial are 
 
82 LETTER TO LORD GLENELG. 
 
 concerned, as citizens or subjects. Then, if I have been 
 correct in my position, I once having been put upon trial 
 before a court of one of Her Majesty's Provinces, to be 
 judged by Her Majesty's laws for that Province, (as it 
 was alleged,) although a citizen of the United States of 
 America, and not a subject of Her Majesty, and tried as a 
 citizen of the United States, (which I conceive to be an 
 anomaly in criminal proceedings;) by being put upon such 
 trial, I was thereby vested with all the privileges and 
 rights of a subject, in fhe fullest extent, so far as the trial 
 and the matters connected therewith- were concerned : 
 and I will not believe you will tell me, my Lord, that 
 Her Majesty has one rule of law for her own subjects, 
 and another for the citizens of other countries ; and as 
 Her Majesty's Government have conceded the irregularity 
 of the proceedings on my trial, an4 on that ground have 
 ordered my release, and if I understand correctly, not at 
 all with regard to myself, but as a matter of public jus- 
 tice, and respect for the laws of the British nation, which 
 Her Majesty's Ministers deem to have been violated. 
 Then, it follows, if I have been illegally condemned, as 
 has been urged and admitted, the natural as well as legal 
 presumption, (without reference to what appeared on the 
 trial,) is that I should have been acquitted had the pro- 
 ceedings been regular ; and if acquitted, the right of a 
 subject which had been conferred upon me, guarantied a 
 full and perfect discharge from every part of the accusa- 
 tion ; and I do think, my Lord, that such a conclusion is 
 by no means the result of a strained argument. 
 
 With the people of the most enlightened and polished 
 nations, such acts as are deemed to be crimes or offences, 
 are made conventional matters ; constitutions of govern- 
 ment and laws are formed for their adjustment, and noth- 
 ing is left open to the caprice of the individual who may 
 
LETTER TO LORD. GLENELG. 83 
 
 chancia to exercise an executive or judicial authority. The 
 offence is clearly defined and the laws made specifically 
 to provide the process for the application, as well as the 
 penalty itself. So I have understood it to prevail with the 
 people of the British Empire : yet, by Her Majesty's Go- 
 vernment, in violation of this rule, as I believe, I find my- 
 self now detained a prisoner. 
 
 In reviewing the circumstances of my detention, I have 
 looked in vain for a motive of national interest or expedi- 
 ency ; and have alike failed to discover wherein a public 
 benefit to the British people could possibly result from it ; 
 and in the absence of the appearance of any fact which 
 could lead me to suppose that in my present imprisonment 
 any such object is intended or sought, I can but regard 
 my detention at this time as the result of personal ani^. 
 mosity and prejudice ; ,it appearing palpable to me that I 
 am not now deprived of my liberty in accordance with any 
 regular course of the laws and customs of the British Em- 
 pire. I have been charged, it is true, with the commis- 
 sion of offences against Her Majesty's laws, in the Cana- 
 das, and by those laws I have been put upon trial. But, 
 then, there has been an entire failure, regularly to fix up- 
 pon me the penalty of those laws by which I have been 
 tried ; and when by their provisions I am unquestionably 
 entitled to my discharge from further jeopardy or harm, I 
 am still held, in violation of those laws, and subjected to 
 a degrading imprisonment. I am not conscious that my 
 conduct in any instance or respect, has been such that it 
 should deny me the grace extended to others taken and 
 charged under similar circumstances with myself, or which 
 could be made to warrant, (even as a matter of expedien- 
 cy,) a violation, by the authorities of the government, of 
 the established laws of the British Empire, for the mere 
 purpose of bringing harm to my person. 
 
84 LETTER TO LORD GLENELG. 
 
 As I have neither interest nor property within these Pro- 
 vinces, [never having resided for any time in any of H^ 
 Majesty's dominions as an inhabitant,] I have assured the 
 Lieutenant Governor of the Province of Upper Canada, 
 that I was prepared to pledge myself in any manner that 
 might be prescribed not again to enter any of Her Majes- 
 ty's dominions, without first having obtained the consent 
 of the Government thereof, upon the condition of being 
 set at liberty and permitted to return to my own country. 
 But I have been told, however, that my word is valueless in 
 this respect, and that I must give other security before I 
 can be discharged. Under these circumstances, I desire 
 to be allowed to inquire into the justice and propriety of 
 such a demand, as I believe I shall be able to convince 
 your Lordship, in this paper, that it cannot be sustained 
 by the laws and usages of the British Empire. 
 
 If I am, my. Lord, correctly instructed in the law, in 
 order to collect the penalty of a bond or recognizance af- 
 ter the condition has been forfeited, recourse to a court of 
 law would be necessary, and in such a court no collection 
 of the penalty can be made unless the bond or recogni- 
 zance shall appear to have been taken in pursuance of 
 the provisions of some express statute or other establish- 
 ed law of the Province or Empire ; and upon some pre- 
 vious inquiry, I am led to believe, there is no statute, or 
 law, in existence and in force, in any of Her Majesty's 
 dominions, which would give validity to bail or security 
 taken from me under th-e circumstances of my case. In 
 the civil law, it is understood, obligations are created be- 
 tween man and man by consideration and agreement, and 
 that the least restraint of a party at the time of the ma- 
 king of an obligation, invalidates the whole. Not so in 
 the operation of the criminal law. There, every exaction 
 is made while the party from whom it is taken is, or is 
 
LETTER TO LORD GLENELG. 85 
 
 supposed to be, under restraint ; and therefore the law 
 allows no exaction to be made except when autho- 
 rized by the express provisions of some statute, or in the 
 course and practice of the common law, which is equally 
 expressed and defined. 
 
 It will be recollected I have neither been indicted, nor 
 charged with offence in any manner, in any court, or be- 
 fore any officer known to the common law; and only 
 when such charges have been preferred on oath, and in 
 some manner substantiated, could bail be required of me 
 according to that law ; as also, it should be recollected 
 that the only proceedings which have been taken against 
 me, were before a Military tribunal which knows nothing 
 of bail or sureties, and which has long since been dissolved, 
 and ceased to exist ; and no court will be found, I appre- 
 hend, to recognize the right of executive power, by a mere 
 sic volo, to give validity to bail taken aside from the esta- 
 blished provisions of the law. But, should it be urged, 
 that as I now stand convicted of a charge, and under sen- 
 tence, therefore the governmentmay make it a condition of 
 my release, that I give such security : to this I reply, 
 the conviction is admitted to have been illegal, and 
 therefore carries nothing with it ; and had the conviction 
 been regular, it would not be different, as it was a convic- 
 tion by a Court Martial, which I understand the law and 
 the practice to forbid, even Majesty itself, to change or al- 
 ter ; (except as an act of mercy in answer to the prayer 
 of the condemned ;) though it may be mitigated in its ex- 
 tent, or annulled for irregularity by the proper officer. 
 Nevertheless, the sentence against me is already altered, 
 as instead of being imprisoned in pursuance of the award 
 of the Court Martial by which I was tried, I am now de- 
 tained in default of sureties to abstain from that which it 
 is Twt unlawful for me to do. 
 
 8 
 
86 LETTER TO LORD GLENELG. x 
 
 When we come to look for a- statute under the provi- 
 sions of whi'ch security might be required from me, " not 
 again to be found within any of Her Majesty's domin- 
 ions," we find; my Lord, that there is a treaty (3.) in full 
 force and effect between the United States pf America, of 
 which Republic I am a free citizen, and the United King- 
 dom of Great Britain and Ireland, whereby the right is se- 
 cured to me, as a citizen, freely and at all times, in a 
 peaceable manner to enter and come into Her Majesty's 
 Provinces in America, for the pursuit of commerce ; and 
 while fhat treaty remains in force between the two coun- 
 tries, no statute, or law, could exist in Her Majesty's do- 
 minions to exclude me from them, or to authorize the ex- 
 action of security from me to abstain from the exercise of 
 the privilege granted by the treaty, in good faith with the 
 government of my country, and without repugnance to 
 that treaty, which is a part and parcel of the laws of 
 the British Empire ; and I believe we should find none; 
 and without such a statute, the bail, if taken, would be al- 
 together nugatory. 
 
 (3.) Extract from Jay's Treaty. — " It is agreed, that it shall, at all 
 times, be free to his Majesty's subjects, and to the citizens of the Uni- 
 ted States, and also the Indians dwelling on either side of the said boun- 
 dary line, freely to pass and repass by land or inland navigation, into the 
 respective territories and countries of the two parties, on the continent 
 of America, (the country within the limits of the Hudson's Bay company 
 only excepted,) and to navigate all the lakes, rivers and waters thereof, 
 and freely to carry on trade and commerce with each other. But it is un- 
 derstood that this article does not extend to the admission of the vessels 
 of the United States into the se:iports, harbors, bays, or creeks of his Ma- 
 jesty's said territories ; nor into such parts of the rivers in his Ma- 
 jesty's said territories as are between the mouth thereof, and the 
 highest ports of entry from the sea, except in small vessels trading bona 
 fide between Montreal and Quebec, under such regulations as shall be es- 
 tablished to prevent the possibility of any frauds in this respect ; nor to 
 the admission of British vessels from the sea into the rivers of the United 
 States, beyond the highest ports of entry for vessels from the sea. The 
 river Mississippi shall, iiowever, according to the Treaty of Peace, be en- 
 tirely open to both parties ; and it is further agreed, that all the ports and 
 places on its eastern side to whichsoever of the parties belonging, may 
 freely bo resorted to, and used by both parties, in as ample a manner as 
 any of the Atlantic ports or places of the United States, or any of the 
 ports or places of his Majesty in Great Britain." 
 
LETTER TO LORD GLENELa. 87 
 
 It cannot be denied, tliat if I had been an ijihdbitant of 
 any of Her Majesty's dominions, and committed offences 
 against her laws, I. might have been tried by those laws, 
 and if convicted, sentenced to banishment; and if regu- 
 larly convicted, so as to give the government legal custo- 
 dy of my person, if I had been sentenced to other punislv 
 ment of a severer nature, that sentence might have been 
 changed or altered to banishment. ,But, I have never been 
 an inhahitani of any of Her Majesty's dominions, nor had 
 I passed a night under the protection of her flag, until I 
 became a prisoner; and it would be necessary that I 
 should first have come peaceably within Her Majesty's do- 
 minions, and been amenable to her laws, which I have 
 not, before I could legally be banished from them." In 
 all the proceedings which have been taken against me by 
 Her Majesty's Government, I have been recognized as a 
 citizen of the United States, to which country I belong, 
 and here stand legally convicted of no offence. 
 
 Then, again ; the bail required, presents a serious objec- 
 tion in its form and effect. According to the procedure 
 of British Criminal Jurisprudence, (if I rightly understand 
 it,) the sureties, whether they be taken for an appearance, 
 for the peace, or for any other purpose, taken in pursu- 
 ance of the provisions of a statute, or in the course and 
 practice of the common law, receive the principal into their 
 custody, and are supposed to retain him to answer the con- 
 ditions of the bond or recognizance, and by the establish- 
 ed laws of England and the every day practice of Courts 
 of Criminal Jurisdictiottj bail, or sureties, at any time they 
 fear their bond or recognizance will be forfeited by the prin- 
 cipal, or when for any reason they become dissatisfied with 
 remaining longer as bail or sureties, by the aid of a bail 
 piece, or certificate of recognizance, are allowed to lay 
 their hands upon the principal and surrender him to the 
 
88 LETTER TO LORD GLENELG. 
 
 Court or Judge having cognizance of the matter ; and 
 on making such surrender, the bail or sureties are exon- 
 erated; and the principal neglecting to give new bail may 
 be committed. But, this privilege of sureties, which is 
 founded in justice and equity, would be denied those re- 
 quired of me ; and the moment they signed, they would 
 be perpetually and irrevocably bound, as I, instead of be- 
 ing placed in their custody, as in the usual manner of bail- 
 ment, to answer the conditions of the recognizance, would 
 by the very condition of the security required, be placed 
 out of their control. It strikes me as reasonable, that bail 
 taken in such a manner, so contrary to the spirit of Brit- 
 ish institutions, and as I believe, entirely without prece- 
 dent, should the bond or recognizance which might be ta- 
 ken from me, be forfeited, the sureties, by the principles 
 of justice and of law, would be entitled to relief. 
 
 In the proceedings of the criminal law, bail is only re- 
 quired, when the party from whom the exaction is made, 
 is under a degree, at least, of impeachment of character ; 
 and in the letting to bail, regard is had, no less to what 
 the bail may have power to effect and enforce, than to the 
 probable good faith of the principal towards the sureties ; 
 and the requirement of bail is always accompanied with 
 the belief, that there will be a due compliance with its 
 conditions ; and it is never taken with the view to the 
 acquisition of the amount of the penalty. Therefore, it is 
 never required for the performance of more than is prac- 
 ticable for sureties to ensure by reasonable exertions. 
 Hence arises the practice in criminal courts to grant relief 
 to sureties, where recognizances are forfeited, whenever 
 the bail come in, and establish to the satisfaction of the 
 court that they have used due diligence to procure a per- 
 formance of the conditions of the recognizance, and that 
 the undertaking has been in good faith on their part. 
 
LETTER TO LORD GLENELG. 89 
 
 Eeasoning thus, if I were to be required to give securitj^ 
 to remain in this or any of Her Majesty's Provinces, the 
 undertaking on the p^rt of sureties for that purpose, would 
 be feasible enough. But who will suppose that the two 
 sureties I am required to give, would be capable, with their 
 own might, of keeping me out of Her Majesty's domin- 
 ions, when I am required by the conditions of the security 
 itself to go beyond their reach ? 
 
 The effect of this requirement of bail from me is a sen- 
 tence of banishment from Her Majesty's dominions; and 
 it is common, and I believe reasonable, to suppose the 
 government fully competent, without extrinsic aid, to en- 
 force the sentence of its courts and the execution of its 
 laws; and I do not understand, my Lord, that in case of 
 the banishment of a subject by sentence, or by the com- 
 mutation of another sentence, it has been usual in the 
 practice of Her Majesty's Government, to require securi- 
 ty against a return; although a subject might be suppos- 
 ed to be among, or in, the vicinity of his friends, and as 
 having the ability of giving such security, if required; 
 which supposition cannot be applied to me, a foreigner 
 and a stranger in the land. 
 
 It has come to me by information I suppose to be au- 
 thentic, that Her Majesty's Government in England have 
 decided in the case of Thomas S. Brown, and others, 
 " that no person can be legally banished from Her Ma- 
 jesty's dominions, luithout trials Then, I may ask what 
 is the difference in value between an illegal trial, and no 
 trial at all ? In my case, I was illegally tried, and on 
 that ground Her Majesty's Government have ordered the 
 sentence of the Court against me to be vacated, as a mat- 
 ter of respect for the laws of the nation ; and as it has 
 been declared that in my case there was a departure from 
 
 the established forms of the law for the distribution of 
 
 8* 
 
90 LETTER TO LORD GLENELG. 
 
 justice, it is reasonable to believe it had been the inten- 
 tion of Her Majesty's Government that I should have 
 been absolved from every effect of the sentence ; as 
 otherwise, there would be no propriety in meddling 
 with it. That no one should be twice judged for 
 the same offence, is a principle embraced, as I have read, 
 within the British Constitution ; yet, I am re-judged, by 
 executive authority, on the grounds of the same Charge 
 upon which I have been once adjudged by a Court 
 Martial, and an exaction made as the condition of my 
 release, which is in itself a sentence of banishment, 
 as much so in its effect as the sentence passed upon 
 Thomas S. Brown, which has been annulled, as not hav- 
 ing been based upon proper legal proceedings. But this 
 demand of me for security, in its present effect, operates 
 upon me as a much severer sentence. If it was merely 
 banishment in its ordinary course, I should have little 
 reason to complain. As it is, however, in default of a 
 compliance with the demand for security, which I have 
 no power to give, I am consigned to the worst condition 
 of imprisonment. Again, my Lord ; Sir William Black- 
 stone in the first volume of his Commentaries informs us 
 " that every Englishman may claim a right to abide in 
 his own country so long as he pleases ; and not to be 
 driven from it unless hy the sentence of the laio ;" and 
 he further remarks " that there is no power in the coun- 
 try, except the authority of the Parliament, which can 
 send any subject of England out of the land against his 
 will — no, not even a criminal ;" and will you, my Lord, 
 treat a stranger with less regard to his rights than a sub- 
 ject, after having so far naturalized him, as to put him on 
 trial by your laws ? 
 
 If the object be to exclude me from Her Majesty's do- 
 minions, and I were able to give the security exacted, the. 
 
LETTER TO LORD GLENELG. 91' 
 
 sureties must necessarily, (as required,) be subjects and 
 inhabitants of these Provinces ; and then, the consequence 
 of the security would be no more than the change of plight- 
 ed faith from the Government to the two sureties ; as they 
 could have no control over my person. Will it then be 
 presumed that I should regard as less binding a promise 
 made, on my own motion, to Her Majesty's Government, 
 than I would one made to two private individuals of 
 Her Majesty's subjects? Subjects, who may be to-day right 
 loyal, though to-morrow they may change their opinions 
 and join others in another attempt to subvert Her Majes- 
 ty's Government in these Provinces ; and having staked 
 their whole fortunes, as well as their lives, by their own 
 acts, may then desire me to assist them in the accomplish- 
 ment of ends, from which to restrain me, (as I am to sup- 
 pose from the nature of the security required,) they had 
 become my sureties ; and they would be able to approach 
 me with the argument " that the government having re- 
 garded my word as nothing, I was bound to place no more 
 value on it than Her Majesty's Government had accepted 
 it for." As to my own recognizance, it would be as effect- 
 ive to exclude me from the country, taken without, as 
 with, sureties. 
 
 If this required security can be legally exacted from 
 me, there are greater hardships attending the demand, 
 than might be apparent at first view. It is often thought, 
 my Lord, by those fortunate people who have never been 
 required to furnish a security in their lives, that a man 
 possessing any character at all, could hardly be without 
 some friends, ready to perform the kind office of sureties 
 when desired. But, under the most ordinary circum- 
 stances, fortunate indeed must be the man, (however ex- 
 alted his character, or however much the bright eye of 
 friendship may have glistened around his path,) of whom 
 
92 LETTER TO LORD GLENELG. 
 
 bail has been required by the hand of the law, and 
 he has not become fully sensible of this general truth, 
 sung by a once well known British bard : 
 
 " Friendship, alas, is but a name, 
 
 A charm that lulls to sleep ; 
 A shade that follows wealth and faraCi 
 
 And leaves the wretch to weep." 
 
 Where, then, shall I expect to find sureties to sign for 
 me under the unusual, and as I think, most extraor- 
 dinary conditions required ? If I have friends, they 
 are citizens of a foreign country to this, residing at a 
 great distance from these Provinces ; and should they of- 
 fer themselves as sureties for me, they would not be re- 
 ceived, as they have neither estates nor effects within 
 Her Majesty's dominions. 
 
 In these Provinces I have no personal friends, nor even 
 acquaintances ; and in my previous communication, I 
 have stated to your Lordship the full extent, and all of 
 the circumstances of my connexion with the political af- 
 fairs of Upper Canada : to the people of which Province, 
 I am now to look for bail. Had I, my Lord, been engaged 
 in a successful operation, it can hardly be doubted but I 
 would then have been able to behold friends around me. 
 Now it is very different. If there were of the inhabitants 
 of that Province, persons who might have been willing to 
 make themselves responsible for my release, some of them 
 are now in the same unfortunate condition with myself; 
 others have fled from the country, to avoid such imprison- 
 ment ; while some have been expatriated by the govern- 
 ment, and others have expatriated themselves ; and, as 
 of the persons who have been charged with political 
 offences in that Province, there having been lately a great 
 number discharged upon bail, it is reasonable for me to 
 believe that many individuals who might have been dis- 
 posed to sign as sureties in my behalf, have already en- 
 
LETTER TO LORD GLENELG. 93 
 
 cumbered themselves to an extent in that way, which en- 
 tirely forbids their now offering themselves fpr me. 
 There are others whom I apprehend would consent to en- 
 ter the required security for me could they do so without 
 subjecting themselves to a charge, or suspicion, of disloy- 
 alty ; and, as they fear, even insult, for doing so. I am 
 forced to this opinion, from a knowledge of an attempt 
 made by private individuals, and as I believe, for private 
 motives, to influence the Government unfavorably towards 
 me ; and therefore, I may now expect those persons will 
 procure every obstacle within their control, to be thrust in 
 the way to the attainment of my liberty. 
 
 Again, my Lord ; instead of having been retained in 
 the Province of Upper Canada, where I was charged and 
 tried, and among the people from whom Lam now requir- 
 ed to procure two sureties, I have been removed into this 
 Province, six or seven hundred miles distant, where I am 
 a stranger, and where I had never before placed my foot 
 upon the soil. Here I have remained confined in a dun- 
 geon, and not permitted to make acquaintance, hold in- 
 tercourse, or even speak to any individuals, except the 
 military gentlemen under whose charge I am. Thus, 
 when I am asked for bail, the very means of procuring 
 it, as it is plain, are withheld from me ! I can see no in- 
 dividuals to inspire them with confidence to become my 
 sureties, nor to appeal to their sympathies in my behalf. 
 I am not now, nor have I been allowed to address any per- 
 son by letter, except it be an open communication ; and 
 I have reason to believe there are persons in the Pro- 
 vince of Upper Canada, who would cause the security re- 
 quired for my release to be filed for me, could I see them, 
 or address them in such a manner as would be acceptable 
 to them ; hut they will not receive a letter from me which 
 has passed unsealed through the hands of third persons. 
 
94 LETTER TO LORD GLENELG. 
 
 Thus circumstanced, my Lord, while imprisoned in a 
 foreign country, as much cut off from the world as if I 
 were coffined, can it be expected that I, without friends to 
 act in my behalf, or even the privilege of confidential cor- 
 respondence, should be able to procure bail in another 
 foreign country, where I am also a stranger ? I am also 
 surrounded by additional difficulties. There are other indi- 
 viduals who have been concerned in the late attempt to 
 effect a political revolution in the Province of Upper Ca- 
 nada, who by the assistance of their friends, with misrep- 
 resentation and falsehood, have labored to magnify my 
 acts, and give them an importance they have never in 
 fact possessed; and they have attributed to me conduct 
 I had never conceived, and proceedings I had not partici- 
 pated in, with the intent to throw their own acts, or those 
 of. their friends, in the shade, and to divest them of their 
 due importance, in order to screen themselves from threat- 
 ened punishment. 
 
 Now, if I were put in a condition to bring my 
 case before one of Her Majesty's superior courts of law, 
 I should not fail, there to procure an order of prohibition 
 against the sentence w^hich has been passed upon me, 
 when an unconditional release would follow ; and I can- 
 not refrain from the inquiry of your Lordship, if it be 
 compatible with even handed justice, longer to detain 
 me in default of the sureties required ? 
 
 How other men may feel in like circumstances, my 
 Lord, I know not ; but as for myself, it required but 
 a portion of that pride of spirit which is in accord- 
 ance with my nature, to make me prefer death in any 
 shape, to a life of prolonged misery and degradation. 
 Hence it has been impossible that I should regard the 
 sentence which has been passed upon me as one of any 
 mitigated severity. If the act of Her Majesty's Govern- 
 
LETTER TO LORD GLENELG. 95 
 
 ment in making void that sentence is only to vary my 
 condition so as to consign me to the narrow precincts of a 
 dungeon, where, shut out from the face of heaven, with 
 my steps circumscribed to twice the length of my body — 
 I am to breath over the same atmosphere day by day for 
 an unlimited period, trusting to the mercy of my God to 
 forgive my sins, I could no longer dread the approach of 
 the moment that should release me from the accumulated 
 miseries of my life. 
 
 This paper, my Lord, I have drawn up in my cell, by 
 the aid of a rush light, without reference to books and 
 authorities, for I have none to refer to ; and without con- 
 sultation with friends, or advice of counsel, as I have 
 neither here to confer with. The statement of my condi- 
 tion may, perhaps, seem a florid account, but I assure your 
 Lordship, I have given it no shade of coloring not its 
 own. The opinions I have advanced are the unaided re- 
 sult of the moment's reflection ; and although I may have 
 in some measures misapprehended the letter, or spirit of 
 British institutions and laws ; and though I may have ad- 
 vanced principles not sustained by the written authorities 
 of the nation, or though I may have wandered from the 
 path of strict reasoning, yet if I have been correct in any 
 one point, I trust your Lordship will allow such argument 
 to have its full force and effect, and that your Lordship 
 will so consider my case, as to direct that I be immedi- 
 ately restored to my liberty, and permitted to return to 
 my own country, without further detention. 
 
 While I have urged this, my appeal, in that serious 
 and firm language which I deemed most compatible with 
 a due regard to myself, I have endeavored to avoid any 
 expression which might seem indecorous ; and I assure 
 you, my Lord, it has been my earnest desire, to ap- 
 proach your Lordship with this communication in the 
 
96 LETTER TO LORD GLENELG. 
 
 manner and with that respect to which the exalted sta- 
 tion and character of your Lordship is entitled : and with 
 the hope that it will receive the early and favorable no- 
 tice of your Lordship, 
 
 It is very respectfully submitted, 
 
 For your Lordship's consideration. 
 
 TH: J. SUTHERLAND. 
 Citadel of Quebec, ) 
 Nov. 1st, 1838. S 
 
 Note. I arrived at Quebec on the 10th day of June, 1838, and 
 was placed in confinement in one of the casemates of the Citadel, 
 in company with Theller, Dodge and seven other Americans ; 
 where I remained until the 20th of August, when I was removed 
 to a room in another part of the Citadel, which I occupied by 
 myself. This was done by the officer of the Coldstream Guards, 
 in whose immediate custody I was, on learning that an order had 
 been sent out by Her Majesty's Government in England for my lib- 
 eration, which he supposed would be immediately carried into ef- 
 fect ,• and as he informed me, '* because he was apprehensive that I 
 might, if I was allowed to remain with the others, enter into some 
 plan for their escape, in which I could assist them after my own 
 liberation." 
 
 Previous to my removal, a plan had been formed to effect an es- 
 cape — but no steps had as yet been taken to carry it into operation. 
 But, when the information was received by Theller that he was to 
 be sent to England to be transported, he resolved, with the others, to 
 make the attempt to get away. As I was expecting soon to obtain 
 my liberation from the Government. 1 had no desire to attempt an 
 escape then, (and I was more particularly debarred, having ob- 
 tained a number of privileges, among which was that of being out 
 during the day time accompanied by a sergeant, and to ramble 
 through the works, by pledging myself to Sir James Macdonell not 
 lo engage in any such undertaking,) but was disposed to afford 
 Theller and the others every facility to do so ; and for this cause, 
 when the escape was effected, I had taken from me all the privile- 
 ges I had before enjoyed, and was thrust into the black hole for Jive 
 weeks ; and it was during my residence in the black hole that I pen- 
 ned the preceding letter. Some months after, I was sent into Up- 
 per Canada, and there unconditionally released. 
 
APPENDIX. 
 
]\IEMBEKS OF THE COURT. 
 
 Names of the Officers^ who composed the Court Martial con- 
 vened at Toronto on the ISth day of March, 1838, for- the 
 trial of General Sutherland, with their several additions. 
 
 ♦ 
 
 COLONEL JARVIS, President, 
 Member of the Provincial Parliament of Upper Canada ; Justice of 
 the Peace ; Commissioner. of the Court of Requests ; Colonel in the 
 Militia, &c. dec. &c. 
 
 COLONEL laNGSMILL, , 
 
 Half-pay Captain in the British army ; Collector of Customs at Port 
 Hope in Upper Canada ; Justice 9f the Peace ; Commissioner of the 
 Court of Requests ; Colonel in the Militia, &c. &c. &c. 
 
 LIEUTENANT COLONEL CARTHEW, 
 Half-pay Lieutenant in the British army ; Deputy Collector of Cus- 
 toms at Toronto in Upper Canada ; Justice of the Peace ; Lieutenant 
 Colonel in the Militia, &c. &c. «fec. 
 
 LIEUTENANT COLONEL BROWN, 
 
 Half-pay Lieutenant in the British army ; Collector of Customs at 
 Coburg in Upper Canada , Justice of the Peace ; Major in the Queen's 
 Rangers ; Lieutenant Colonel in the Militia, &c., &c. &c. 
 
 MAJOR GURNETT, 
 
 (A naturalized citizen of the United States,) Clerk of the Peace in 
 the Home District of Upper Canada ; Justice of the Peace ; Commis- 
 sioner of the Court of Requests ; Alderman of the City of Toronto ; 
 Major of the Toronto City Guards, «&c. &c. &c. 
 
 MAJOR DEWSON, 
 
 Quarter Master of the 15th Regt. of Foot in the Britsh army ; Justice 
 of the Peace ; Major in the Militia, &c. &c. &c. 
 
 CAPTAIN POWEL, 
 
 Barrister at Law ; Mayor of the City of Toronto in Upper Canada ; 
 Justice of the Peace ; Captain in the Militia, &c. &c. &c. 
 
 CAPTAIN FRY. 
 
 COLONEL FITZ GIBBON, Judge Advocate, 
 Half-pay Captain in the British army; Clerk of the Provincial Par- 
 liament of Upper Canada ; Justice of the Peace ; Colonel in the Mi- 
 litia, &c. &c. &c. 
 
FIRST DAY. 
 
 Tuesday, March 13, 1S38. 
 
 Pursuant to the orders of Sir F. ft. Head, Lieutenant 
 Governor of the Province of Upper Canada, a Court Mar- 
 tial was convened for ihe trial of Thomas Jefferson 
 Sutherland, a citizen of the United States of America, 
 (late Brigadier General in the Patriot army of Upper 
 Canada,) at the Garrison, near Toronto, on the 13th day 
 of March, A. D. 1838. At ten o'oiock in the forenoon of 
 that day, Ihe Prisoner, General Sutherland, was brought 
 before the Court, and the Charge upon which he was to be 
 tried, with the several orders for the convening of the 
 Court, were then read by the Judge Advocate. This be- 
 ing, done^ and the Judge Advocate having furnished the 
 Prisoner with a copy of the Charge, and of the law 
 under which it was drawn up, and with a copy of the 
 Militia laws of the Province, by the provisions of which 
 the Court Martial was said to have been organized, the 
 President adjourned the Court till 10 o'clock A. M. of the 
 next day. 
 
 [I arrived in Toronto about mid-day on the 12th of 
 March, and having been selected by Sir F. B. Head and 
 his Executive Council as the first to be made a sacrifice, it 
 was at ten o'clock on the morning of the next day that I 
 was arraigned before the Court Martial, to be prepared 
 for the scaffold which was then yawning for its victim.] 
 
 SECOND DAY. 
 
 Wednesday, March 14, 1838. 
 
 The Court met pursuant to adjournment. Present the 
 same members as before. After some proceedings which 
 
100 PRELIMINARY PROCEEDINGS OF 
 
 were merely preliminary had been gone through with, 
 the President adjourned the Court till 10 o'clock A. M. 
 of the 16th day of the same month. 
 
 THIRD DAY. 
 
 Friday, March 16, 1838. 
 
 The Court met pursuant to adjournment. Present the 
 same members as before. Without proceeding with the 
 the trial, the President adjourned the Court till 10 oclock 
 A. M. of the 19th day of the same month. 
 
 FOURTH DAY. 
 
 Monday, March 19, 1838. 
 
 The Court met pursuant to adjournment. Present the 
 same members as before. Upon the opening of the Court, 
 the Prisoner, General Sutherland, was brought before it, 
 and asked by the Judge Advocate, "if he had any objec- 
 tions to make to any of the members of the Court?" 
 
 The following objections were then delivered to the 
 Court, in writing, by General Sutherland. 
 
 1st. I object that Major Dewson, who has taken his 
 seat as a member of this court, is an officer, on full pay, 
 in the regular forces of Her Majesty; and that he is, there- 
 fore, incompetent to sit on this Court Martial, which the 
 laws require to be composed exclusively of Militia Officers. 
 
 2d. I object that the President of this Court has never 
 before sat on a Court Martial. 
 
 3d. I object that one half of the members of this Court 
 have not before sat on a Court Martial. 
 
 The Court was then cleared, and on its being again 
 opened, and the prisoner brought in, he was informed by 
 
THE COURT MARTIAL. 101 
 
 the Judge Advocate that the Court had decided that his 
 objections were not well taken. 
 
 The prisoner, General Sutherland, then delivered to 
 the Court, in writing, several other objections to its consti- 
 tution ; which were alike ruled against by the Court ; 
 and it also refused to enter them on the minutes. The 
 members who had first taken their seat were then all 
 sworn. 
 
 [Notwithstanding a number of the officers composing 
 the board had served in the British regular army, in the 
 proceedings of this Court Martial, there was but a little 
 observance of the established rules and practice of such 
 tribunals. In taking their places, the President was seat- 
 ed at the head of the board, with the Judge Advocate im- 
 mediately on his right, seated as one of the members of 
 the board, and indeed acting as such. This should not 
 have been. By the rules and practice of Courts Martial 
 in the British army, in the formation of a board of Court 
 Martial, the President is seated at the head of the table. 
 Immediately on the right of the President is placed the 
 member highest in rank. The next in rank on the left ; 
 and so on, right and left, alternately, according to rank, 
 until they are all placed. The Judge Advocate has his 
 seat at a separate table, on the left of the President ; and 
 the accused is similarly placed on the right. While im- 
 prisoned in the Citadel of Quebec, I was present at a 
 number of Courts Martial, convened at that place of offi- 
 cers of the British regular army, and I observed that such 
 was their order of arrangement. On my trial I was fur- 
 nished a table and a seat on the left of the President of 
 the Court. In taking a vote, the Court Martial by which 
 I was tried proceeded without any order, commencing by 
 taking the vote of one member at one time, and that of 
 another, at another time. By the established practice of 
 Courts Martial in the British army, the vote of the offi- 
 cer lowest in rank on the board is taken first ; and then 
 that of his next superior, and so on, up to the President, 
 who is not required to give his vote, unless there be a tie 
 of the members'. This practice has been founded upon 
 the supposed influence that an old and experienced officer 
 might have over a subordinate, who may be a youth of 
 9* 
 
102 PRELIMINARY PROCEEDINGS OF 
 
 inexperience ; and it is adhered to in order to prevent the 
 vote of the one controlling the other. The principle up- 
 on which this practice is founded, is carried still further 
 in the practice of Courts Martial in the French army. — 
 There, a vote is taken by delivering a sheet of paper to 
 the junior officer of the board, who writes on it his vote, 
 and then folding over the paper so as to cover it from 
 view, hands the sheet to the next superior in rank, w^ho 
 does the like, and hands it to his next superior ; and thus the 
 paper is passed from member to member, until it arrives 
 to the hand of the President, who unfolds it and declares 
 the result. I was required on my trial, to reduce the 
 questions I propounded on the cross-examination of wit- 
 nesses, to writing, before they would be accepted and con- 
 sidered by the Court. This requirement was in accord- 
 ance with the rules and practice of Courts Martial ; and 
 may be regarded as proper in order to prevent confusion. 
 On the trial of officers this rule is generally adhered to; 
 and w^hen a common soldier is on trial, the Judge Advo- 
 cate usually reduces his questions to writing for him. It 
 is also the practice of Courts Martial to allow no indivi- 
 duals to be examined as witnesses who have been present 
 during the examination of a previous witness on the same 
 trial. To enable the Court to preserve this rule, and in 
 order to put the accused in possession of a perfect knowl- 
 edge of the character of the testimony which is to be ad- 
 duced against him, it has been established as a rule, that 
 the Judge Advocate shall, on delivering a copy of the 
 charge to the accused, furnish him with the names of the 
 persons whom he intends to adduce as witnesses; and 
 none but those whose names have been furnished to the 
 accused will be allowed to be examined. The accused 
 is also required, at the opening of the Court on the first 
 day, to furnish to the President the names of his witnesses, 
 that they maybe excluded during the examination of oth- 
 er witnesses, or to take care himself that none of them 
 are present ; for the Court will not permit him to call and 
 examine any who have been present at the examination 
 of others. So far as this rule became applicable on my 
 trial, it was adhered to. For the trial of officers and sol- 
 diers of the military forces of any country, a Court Mar- 
 
THE COURT MARTIAL. 103 
 
 tial constituted of officers of the same forces, has strong- 
 er guards against oppression and unjust condemnation, 
 than the tribunals of the civil law. A Court Martial is 
 instituted, in every case, for an inquiry and adjudication 
 of specific matters ; and when that is done, the tribunal 
 is at an end. The officer who is a member of a Court 
 Martial to-day, to-morrow may be arraigned himself be- 
 fore a similar Court, of which the officer on whose con- 
 duct he may have just passed, might be a member. For 
 this reason it is not to be supposed that any officer would 
 be likely to vote for the application of a principle, or rule 
 of practice he would not be willing to have applied to 
 himself. The common soldier, in a certain sense, is 
 the tool with which the officer operates; the stock on 
 which he speculates for military fame and glory. Hence 
 if the common soldier be put on trial, though he is not 
 tried by his peers, the interest which every officer wil. 
 feel in his preservation, must necessarily render him se- 
 cure from oppression and wrong. But, when a Court 
 Martial is resorted to for the trial of a strapger or foreign- 
 er, it is without these guards to protect him ; and he is 
 left open to the greatest violence and wrong.] 
 
 The President then asked the prisoner, General Suth- 
 erland, whether he said guilty or not guiltij to the Charge ? 
 and he answered, "not guilty." 
 
REPORT OF THE TESTIMONY. 
 
 John Prince, (1.) Lieutenant Colonel in the Militia of 
 the Province of Upper Canada, being duly sworn on the 
 holy Evangelists, states to the Court : 
 
 That on (he fourth day of March, instant, he was re- 
 
 (1.) This John Prince, who has become of late somewhat noto- 
 rious on this continent as the violator of the rules of civilization 
 and the common rights of man, is said to be a native of England. 
 He was born, some forty-five or fifty years since, at Quedgley Green, 
 in the county of Gloucester. At an early age he was apprenticed 
 to an Attorney, and upon being admitted to the bar, commenced 
 practice as an Attorney at Cheltenham, with one Stafford as a part- 
 ner. Subsequently, Prince procured himself to be appointed Clerk 
 to the Commissioners of Roads. By means of this office, as it is said, 
 he got into his possession two or three thousand pounds of the pub- 
 lic funds, with which he decamped, and came to the United States. 
 He first landed upon our shores at the city of New- York ; and from 
 thence he pursued his way into the interior until he arrived at De- 
 troit, in Michigan, where he put himself down, with a view of ma- 
 king that place his permanent residence, and embarked in the busi- 
 ness of smuggling. But apprehending that he might be looked af- 
 ter by the Commissioners of Roads, whose coffers he had defraud- 
 ed, and observing the ready intercourse and communication which 
 existed between the city of New-York and Detroit, he deemed him- 
 self unsafe at the last mentioned place ; and left that, and crossed 
 over to the Upper Canada shore, and stowed himself away on a 
 piece of land in the wilderness of the Western District of that Pro- 
 vince. There he remained safe and secure for a number of years, 
 engaging himself principally in smuggling ; for which his natural 
 disposition for duplicity and scheming peculiarly fitted him. Sub- 
 sequently becoming acquainted with a lady residing in the part of 
 the Province where he was located, who was in possession of a con- 
 siderable amount of money and property, but no character, having lost 
 her claim to the latter, by certain derelictions from the principles and 
 rules of chastity; to her he married, and by adding her effects to 
 his plunder, he was enabled to go back to England and make a com- 
 promise with the defrauded Commissioners of Roads, and still hold 
 the possession of a considerable amount of property. Upon his first 
 arrival at Detroit, and during his early residence in Upper Canada, 
 Prince professed himself a Democrat in principle ; and in Canada 
 he adhered to the Radical Reform party. Soon after be had effect- 
 ed a compromise with the Commissioners of Roads in England, he 
 put himself up as a candidate for a seat in the Provincial Parlia- 
 ment of Upper Canada, to represent a county of the AVestern Dis- 
 trict, and by the votes of the Radical Reformers obtained an elec- 
 
TESTIMONY OF LT. COL. PRINCE. 105 
 
 turning from Gosfield, in the Western District — was tra- 
 velling in a sleigh along the shores of Lake Erie on the 
 Canada side, and at about half past four o'clock, P. M. he 
 saw at a great distance two objects on the ice, which he 
 thought were men — that he was in company with Captain 
 Girty and Mr. Haggerty ; and they had been with him on 
 Pele Island on the preceeding day, with the forces under 
 the command of Colonel Maitland — that in about twenty 
 minutes after he had seen the objects, he saw that they 
 were men coming from the Michigan shore towards the 
 Canada ^Aore— that he conceived them to be spies, and 
 determined to intercept them if possible — that having met 
 some people who accommodated him and Mr. Haggerty 
 with fresh horses and sleighs, (2.) Mr. Haggerty got into 
 
 tion. Immediately after taking his seat in the Provincial Parlia- 
 ment, however, he abandoned his reform principles, and joined the 
 ultra loyal party who sustained the measures of Sir F. B. Head 5 
 and upon the first movements of the Revolution which took place in 
 that Province, in 1837, he was found among the most active of the 
 supporters of the British Colonial authorities. To enable him effi- 
 ciently to act in such respect, Sir F. B. Head commissioned him as 
 a Justice of the Peace, and as a Lieutenant Colonel in the Militia 
 of the Province. 
 
 Upon the convocation of the Provincial Parliament of Upper 
 Canada, in 1837, by Sir F. B. Head, Prince took his seat, and during 
 that memorable session, procured a law to be passed, authorizing 
 him to practice as an Attorney, Solicitor and Barrister, in the seve- 
 ral courts of law and equity of the Province. 
 
 The residue of the history of this man is too well known to need 
 recounting in this note. 
 
 (2.) On the morning of the 4th of March, 1838, 1 had proceeded 
 from Detroit down to Gibralter, a small village or landing place, 
 situated at the head of Lake Erie, nearly opposite to Amherstburgh 
 in Upper Canada, and at the distance of 18 or 20 miles from De- 
 troit. My intention had been, on setting out from Detroit, to pro- 
 ceed to Sandusky in Ohio, by the way of Gibralter, Monroe and 
 Perrysburgh, in order to make an effort to recover property of which 
 I had been robbed, and to meet those who had been guilty of the 
 robbery, who I had been informed had gone to Sandusky by that route. 
 But, at Gibralter. I was advised not to go on by the way of Perrys- 
 burgh j and in accordance with the advice I had received, I changed 
 my intention, and resolved to proceed across the ice, which then co- 
 vered the waters at the head of Lake Erie, on a righi line to San- 
 dusky, whereby I could have gained Sandusky in travelling a dis- 
 tance of only about one-third of that by the way of Perrysburgh ; and 
 in advance of the persons of whom I was then in pursuit. The 
 roads were most intolerably bad, and this was one of the facts which 
 
106 TESTIMONY OF LT. COL. PRINCE. 
 
 one of the sleighs and witness into the other — that he had 
 previously prevailed on Captain Girty, who was unwell 
 
 recommended to me the measure of crossing npon the ice, which I 
 was at the time informed I could do only on foot, as the ice was 
 known to have been hroken and separated at the head of Lake Erie, 
 on a line from Point Mouillee in Michigan to Hartly's Point in Up- 
 per Canada j and this would prevent the crossing of teams, as it was 
 supposed, though it allowed travellers on foot to get over. At about 
 15 minutes before 32 M., I set out on foot from Gibralter, accompa- 
 nied only by a single individual, (a lad some sixteen or seventeen 
 years of age,) and proceeded on the ice down along the shore of 
 Michigan, until I arrived at the place where the ice had been bro- 
 ken and separated, (which was in the neighborhood of Point 
 Mouillee,) but, there I found that an east wind had closed it again so 
 as to render it not only convenient for persons on foot, but also for 
 teams, to get over. From thence I travelled in a south-easterly direC' 
 Hon, (that being the course for Sandusky,) and had gained the dis- 
 tance of four or five miles below the fracture in the ice, (which had 
 brought me very near a schooner, that was there frozen in the ice, 
 and in the neighborhood of the Island called the West Sister, which 
 was then fairly within my view,) when on turning my eyes to the 
 rear, I perceived two objects on the ice which I conceived to be in- 
 dividuals travelling on foot in the same direction I was then pursu- 
 ing. After they had crossed the fracture in the ice, however, and 
 had come on some distance towards me, I discovered that the ob- 
 jects I had before noticed, were not single individuals on foot, but 
 two sleighs, and that they were followed by a third, close in the 
 rear. But, as I had observed that they were pursuing the same 
 route travelled by myself, I did not suspect that they intended harm 
 to me, nor was I so advised until the two sleighs in advance had 
 come up to within about fifty yards, and a number of men they con- 
 tained, armed with muskets, swords and pistols, got out and com- 
 manded me to halt ; and their leader, who was this John Prince, 
 declared me to be a prisoner. 
 
 I had no means of conceiving, nor did I ascertain why I had been 
 thus pursued and captured, until after my trial at Toronto. Subse- 
 quent to the trial, and while I was being conveyed as a prisoner 
 from Toronto to Kingston on board a steamer, I became acquainted 
 with a Lieutenant of Her Majesty's service, who informed me that 
 he was on duty at Amherstburgh at the time of my capture ; and he 
 stated to me " that immediately after my setting out from Gibralter, 
 an individual who had acted as a spy for them, came over from 
 Gibralter to Maiden, and made it known to Colonel Maitland, who 
 commanded at that post, that I was travelling on the ice towards 
 Sandusky in Ohio, and that being on foot I might be readily pur- 
 sued and taken by a party in sleighs ; that Colonel Maitland de- 
 clined sending a party from Maiden for the object suggested, but 
 directed the individual making the communication, to proceed down 
 along the Canada shore, where he would be likely to meet some of 
 the parties coming up from Pele Island, (where the British forces 
 
TESTIMONY OF LT. COL. PRINCE. 107 
 
 and his horses tired, to remain where he was (3.) — that 
 they drove on, witness first, Haggerty next — that when 
 witness came within about a hundred yards of the pris- 
 oner, who had another person with him of the name of 
 
 , he desired the man who drove him to stop and 
 
 take charge of his, witness's pistols — that he left in the 
 sleigh a tomahawk which he had, and advanced towards 
 the prisoner, following them and having his gun — that he 
 desired Mr. Haggerty to follow with his gun also — that 
 he was about Jlfty yards ahead of Mr. Haggerty when 
 he hailed the prisoner and his companion, and desired 
 them to halt — thai they did so, and the prisoner asked, 
 " what do you wantV and said, " we are American citi- 
 zens going about our own business^'' — that as witness ad- 
 vanced, he recognized the prisoner — that he then said 
 they were sorfie of the people he had been looking for, or 
 words to that effect — that on their turning round he dis- 
 covered that they had swords, and he advanced tow^ards 
 prisoner and took his sword from him — that witness then 
 desired Mr. Haggerty to demand the sword of the prison- 
 er's companion — that Mr. Haggerty did demand it, and it 
 was given to him (4.) — that witness then demanded of 
 
 had been engaged with the Patriots the day before,) to whom he 
 could make the facts he had communicated known, and that they 
 might act upon them ; that the individual did so, and fell in with 
 Colonel Prince, who fitted out the expedition by which I was pur- 
 sued and captured." The party by which I was taken and carried 
 off to Canada consisted of Colonel Prince, Major Rudyard, Captain 
 Girty, Lieutenant James, and Lieutenant Wright, together with 
 some twelve or fifteen soldiers, constituting as many persons as 
 could be crowded into three sleighs. 
 
 (3.) Girty did not remain very far behind in the pursuit, as it 
 will be perceived by an examination of the report of his testi- 
 mony, but proceeded on after me as fast as his horses could 
 draw his sleigh, then loaded with armed persons, while Prince, with 
 his fresh teams, had taken the lead. On leaving the Canada shore, 
 as I was informed by Girty and some others of the party, they 
 drove directly towards the shore of Michigan, with the hope of tak- 
 ing me before I could have got down to the fracture in the ice 
 near Point Mouillee ; but when they had arrived near the Michi- 
 gan shore, they discovered that I had crossed the fracture in the 
 ice, and gone off in a south-easterly direction, and they, accordingly 
 changed their course to the same direction and pursued until they 
 came up with me. 
 
 (4.) After resigning my command with the Canadian Patriots I 
 
lOS TESTIMONY OF LT. COL. PRINCE. 
 
 both if they had any fire-arms about them — that they as- 
 sured him that they had not, when witness said he would 
 be satisfied with that assurance, and would not search them 
 — that he told them to consider themselves as his prison- 
 ers, and to march before him to the sleighs which were 
 at some distance (5.) — that Mr. Sutherland then charged 
 the witness with having taken him within the American 
 waters — that witness told him to look at our shore, and at 
 the American shore from whence he came, and he told 
 him to bear in mind that they were about a mile and a half 
 from the Canada shore, while they were zhoui five or six 
 miles from the Michigan shore (6.) — that the prisoner then 
 
 had packed up my arms and field equippage, and left them at Tole- 
 do in Ohio ; and I had kept no kind of arms in my possession ex- 
 cept a brace of pocket pistols "which belonged to a friend who re- 
 sided in Detroit. These I returned to the owner, while there, and 
 left Detroit on the morning of the 4th of March, with no kind of 
 weapons for ofi"ence or defence. At a public house near Gibralter, 
 I was shown a couple of swords which were my property, and which 
 had been left there by me, at a time previous, on account of their 
 futility as weapons for the field. But, as the swords were of use 
 to ornament a militia ofiicer, and might be sold for some amount 
 of money, the lad whom I had in company proposed that we should 
 take them along — to which I consented ; and one of these 
 swords, which I carried in my hand, was all the weapon I possess- 
 ed when come upon by Prince and his party. The lad who accom- 
 panied me carried the other in his hand, which was taken from him 
 in the manner as testified to by Prince, (by one of his party, whose 
 name I presume was Haggerty,) but not until the third sleigh had 
 come up, and we had gone back to the sleigh which stood in the 
 center, into which we were ordered to place ourselves. After the 
 the sword had been taken away from my companion, I produced the 
 one I carried from under my cloak, and asked the man " if he 
 wished it?" He replied — " Yes," and I gave it to him. Prince, at 
 the time, was at the advance sleigh, and did not know that I had 
 a sword in my possession until I had given it to his man. So, he 
 did not take my sword from me. 
 
 (5.) On coming up with myself and companion, Prince and his 
 party readily perceived that we had no arms, other than such as 
 might be worn by our sides or carried in our pockets. They were 
 armed with muskets. Prince did not allow myseli or companion to 
 come nearer than forty or fifty yards of him, before the third sleigh 
 with Girty, had come up ; thus keeping himself safe from harm, 
 by sword or pistol, until we were surrounded by a body of men 
 armed with muskets. It was then, that it was proposed by some of 
 Prince's party to search us, when Prince said, " that it was not ne- 
 cessary." 
 
 (6.) See notes to the answers of Prince to the 18th, 19th and 23d 
 
TESTIMONY OF LT. COL. PEINCE. 109 
 
 Stated that he thought he had a right over any of the wa- 
 ters of Lake Erie, or words to that effect — that he then 
 desired the witness to take him before his commanding 
 officer, and he expressed a hope that he would not be ill 
 used by them (7.) — that witness told him he should 
 be taken before the commanding officer, and should not 
 be ill treated — that witness wished the Court distinctly to 
 understand that the ylace ivhere he captured the Prisoner, 
 was not above a mile and a half from the Canada shore, 
 and it was on that part of Lake Erie which belongs to the 
 British government — that he also wishes the Court dis- 
 tinctly to understand that it was at least five miles from 
 the American shore- — that witness also wishes the Court 
 to understand that the swords vjere both very efficient 
 sivords, (8.) and they wore them as military men usually 
 do — that witness had seen Mr. Sutherland at Detroit 
 some time previous to that day, about six weeks previous, 
 and a few days after the capture of the schooner Ann of 
 Detroit — that he had then a sword by his side, which 
 witness believes to be the same which he took from him 
 (9.) — that he also wore a military dress with a tri-colored 
 
 questions upon his cross-examination, and 1st note to the answer of 
 Girty to questions by the Court. 
 
 (7.) Having captured me, and taken me towards and within a 
 mile of the Upper Canada shore, it was then proposed by some of 
 the party that I should be executed there upon the ice, by being 
 shot. Hearing this proposition, I remarked to the officers, " that I 
 had supposed them to be civilized people" — and told Prince " that 
 for his own credit and the reputation of the people of his coun- 
 try, I hoped he would not allow me to be murdered, and ask- 
 ed him to preserve me from harm until I should be taken before his 
 commanding officer. Some conference was then had between Prince 
 and his officers ; after which he told me " that I should not be ill 
 treated, and that he would take me immediately to his commanding 
 officer at Fort Maiden." Iwas since informed by an individual 
 who was of Prince's party, " that two of the officers were for 
 shooting me upon the ice, but that the three others were opposed 
 to the measure and prevented it — and that Prince was not num- 
 bered with the three." 
 
 (8.) The swords were French rapiers j but were never worn by 
 either myself or companion. I could not have worn the one T car- 
 ried, if I had desired, for the reason that the belt attached to it was 
 not sufficient to girt my waist. 
 
 (9.) The sword which I had in my possession at the time of my 
 capture, was never worn by me in the city of Detroit. Neither 
 
 10 
 
1}0- TESTIMONY OF LT. COL. PRINCE. 
 
 cockade on his hat — that after Mr. Sutherland became the 
 witness's Prisoner, they proceeded in sleighs to Maiden, 
 where witness placed him in charge of the Honorable Co- 
 lonel Maitland, then commanding there. 
 
 That on the following day, being Monday, and Col. 
 Maitland having expressed his determination to send both 
 the Prisoners down to Toronto ; and Mr. Sutherland hav- 
 ing the preceding day expressed a wish to make a com- 
 munication to them ; (10.) witness arranged with Colonel 
 
 Prince, nor any other person ever saw me at Detroit with a sword 
 by my side. Though I did there wear a military undress and a 
 tri-colored cockade. [I objected to Prince's testifying to any mat- 
 ters which had occurred within the United States — but my objec- 
 tions were overruled by the court.] 
 
 (10.) I never expressed to any one a wish to make a communica- 
 tion to Prince, Lachlan, Girty, or any other person. Immediately 
 after my capture I was taken to Fort Maiden and placed in the 
 guard-room, where I remained a short time, and was then taken to 
 the officers' guard-room, before Colonel Maitland, who was the mili- 
 tary commandant of the post. A number of other officers were 
 present, by two of whom my person was searched, and my money, 
 as well as every thing of value found in my possession, was taken 
 from me. Co'onel Maitland treated me with a considerable degree 
 of courtesy, and when I complained to him that I had been kidnap- 
 ped and brought off from my own country, he stated to me " that 
 he was but the military commandant of the post, and could not act 
 at discretion, but as such military commandant, must send me im- 
 mediately to Toronto, to the Lieutenant Governor." While in thejof- 
 ficers' guard-room, some of the British officers present abused me 
 with invidious observations in relation to the character of my 
 country, which I was inclined to repel; but another of the officers 
 present pulled me by the sleeve and suggested that I should not re- 
 gard their observations — and I desisted to reply. After this, I was 
 sent back to the guard-room, where, in the evening, I was called 
 upon by a clergyman, resident at Amherstburgh, [it should be 
 understood that iWa/tfe/i and .y?7?iftersf6wrgA, as mentioned in these 
 proceedings, are names of but one place — the fort and the town- 
 ship is called Maiden, the village Amherstburgh,] to whom I slated 
 that it was my desire to be detained at Amherstburgh a few days, 
 so that I could make my case known to my friends in Michigan, 
 as it might be important for me to do so in case I was to be put up- 
 on trial. He advised me to see Colonel Maitland, and make 
 the request to him in person. In accordance with his advice, I pro- 
 cured one of the officers of the 32d Regiment to inform Colonel 
 Maitland that I desired to see him at the guard-room where I was 
 confined. Soon after this I was sent for, and taken again to the 
 officers' guard-room, where I was met by an officer of the British 
 army who said to me. " that Colonel Maitland was an invalid and 
 
TESTIMONY OF LT. COL. PRINCE. IJl 
 
 Maitland that the Prisoners should be brought befo're him, 
 the witness, Major Lachlan, and Captain Girty, all of 
 whom were magistrates in the Western District^ — that 
 Mr. Sutherland was in consequence brought before them 
 about mid-day, in a room in the garrison where any body 
 who pleased was allowed to enter ; and the room was filled 
 with military men and civilians (11.) — that the Prisoner, 
 Mr. Sutherland was brought in first, and alone, apart 
 from his companion ; witness then reminded him of his 
 having expressed a wish to make a communication to 
 them ; witness stated that he and his brother magistrates 
 were ready to receive any information he may choose to 
 give, at the same time reminding him that he need not 
 say any thing which would criminate himself (12.) — that 
 he said he was aware of that, and that he would frankly 
 tell us all he knew (13.) — that he then made a voluntary 
 
 unable to come up to the guard-room j and had sent him to receive 
 any communication I might have to make." This officer was one 
 of those who had abused me upon my being first brought to the of- 
 ficers' guard-room, and I could but conceive that a request through 
 him would be of little avail, and so I replied, "that I had no com- 
 munication to make," and he ordered me to be taken back again to 
 the guard-room. Some time after, another gentleman, a field offi- 
 cer in the British army, came to me and said, " that he understood 
 I had wished to make a communication j" and stated "that if I had 
 any thing to communicate, I might make it to him, and that he 
 could perhaps turn it to some advantage for me ;" to him I also re- 
 plied, " that I had no communication to make," Further than this, 
 there was nothing said to me in relation to any communication eith- 
 er at Amherstburgh, or elsewhere. 
 
 (11.) The room in which the examination was had, was the of- 
 ficers' guard-room, which was not permitted to be entered but by 
 officers ; and there were no persons present at the examination, 
 who were not of the military. 
 
 (12.) When taken before Prince, Lachlan and Girty, I was told 
 by Prince, " that they were three justices of the peace of the West- 
 ern District of Upper Canada, and that I was brought before them 
 for examination." It is, also, true that Prince did remind me, 
 when he commenced the examination, on that occasion, " that I 
 need not say any thing that would criminate myself." 
 
 (13.) I had not desired an examination before Prince and his 
 brother magistrates; nor had I done or said any thing to induce 
 the measure ; and when I was brought before them, I then thought, 
 as I still think, that the examination was had solely with a view to 
 elicit some acknowledgiuent or admission from me which might be 
 used against me upon a trial which they supposed I was soon to 
 
112 TESTIMONY OF LT. COL. PRINCE. 
 
 Statement which witness heard throughout — after he, the 
 Prisoner, had made this statement, witness reduced the 
 substance of it to writing in his presence (14.) — (the 
 witness also produced a newspaper, which newspaper he 
 handed into the Court, it being the "Detroit Morning 
 Post," dated the 12th of January, 1838, the paper con- 
 taining Mr. Sutherland's despatches and proclamations) 
 (15.) — that when witness had finished the statement above 
 
 be subjected to. Understanding the examination to be had for such 
 purpose, I resolved to give them what they desired, to their own 
 satisfaction— but in no way that should be of less service to myself 
 than to them. So I told them " that I would frankly tell them all I 
 knew in relation to those matters, in which I had been concerned f 
 and in my answers to the questions put to me, I fully and freely sta- 
 ted the part I had had in the matters about which they inquired. 
 But, whenever the question was such as to require an answer that 
 might be made testimony against me, with my answer I took 
 care to give a statement of such matters as would destroy any 
 force the answer might have as testimony against me — or of 
 some fact that should weigh equally in my favor. Thus, while 
 I admitted my connection with the Canadian Patriots, and a 
 participation in their movements, I stated matters which went 
 to deny every fact on which a trial could be predicated, under the 
 provisions of the law of the 12th of January, of the enactment of 
 which I had been made acquainted ; and on the examination I 
 mentioned the names of no persons except Van Rensselaer and 
 Mackenzie. 
 
 (14.) During my examination. Prince drew up a paper which 
 he called a record of the examination ,• and after it had been 
 concluded, he read it to me. It contained only a brief state- 
 ment of a few of the matters I had related, and those only 
 which might be used as testimony against me. After read- 
 ing the same. Prince asked me "if it was correct?" I re- 
 plied, " that I had stated the matters the paper contained, but 
 with many others, which were omitted." To which he replied, 
 '• that he Avas aware of the fact, but to write out all I had said would 
 require too much paper and ink to be used at that time ;" and as 
 he did not request me to sign the paper, I took no furtlier excep- 
 tions to the imperfections it contained. I knew that the paper 
 Prince had drawn up, without my signature, could not be read in 
 any court claiming to act upon legal principles and rules, as evi. 
 dence against me ; and I knew as well that if he or any other of 
 the persons present at the examination, were examined as wit- 
 nesses upon any trial on which I might be put, to prove my admis- 
 sions, I could show by them that all the admissions I had made, 
 (taken together,) went to exculpate, and not to criminate myself. 
 
 (15.) These were certain despatches to General R. Van Rensse- 
 laer, sent from Bois Blanc Island, with the proclamations issued 
 by me at that place. 
 
TESTIMONY OF LT. COL. PRINCE. 113 
 
 mentioned, which he now holds in his hand, he read it 
 deliberately over to the Prisoner, and asked him if it was 
 substantially true — he said it was. 
 
 Here the witness delivered the paper to the Judge Ad- 
 vocate, who read it, when it was referred to the Appen- 
 dix. (16.) 
 
 (16.) I have made every exertion, possible for me, to procure a 
 copy of this paper, but have failed ; as will be shown by the fol- 
 lowing correspondence : 
 
 Copy of a letter to the Lieutenant Governor. 
 To His Excellency Sir George Arthur, Lieut. Governor, &c. 
 
 Thomas Jefferson Sutherland, a citizen of the United States of 
 America, now detained a Prisoner by the Government of the Pro- 
 vince of Upper Canada, would respectfully represent to your Ex- 
 cellency, that it is his intention to present the circumstances of his 
 capture and detention to Her Majesty the Queen of Great Britain 
 and Ireland, to the end of relief, and that he may be liberated from 
 his present condition, and permitted to return to his country and 
 friends. Wherefore, he solicits your Excellency to cause to be made 
 and delivered to him a cer^i^ec? copi/ of all the proceedings taken 
 against him by and before a Militia General Court Martial in this 
 Province, with, his defence made before said Court Martial ; and 
 copies of the Laws or Statutes under which such proceedings were 
 had, that he may lay the same, with his representation, before Her 
 Majesty by an early day. 
 
 Very respectfully submitted to your Excellency. 
 
 TH : J. SUTHERLAND. 
 Home District Gaol. \ 
 23d April, 1838. ' 5 
 
 Copy of letter from J. Joseph to Sheriff Jarvis. 
 
 Government House, > 
 26th April, 1838. 5 
 
 Sir — 'I am commanded by His Excellency the Lieutenant Gover- 
 nor, to request you to be so obliging as to acquaint T. J. Suther- 
 land, a convict in the gaol of this city, under sentence of transpor- 
 tation, that his Excellency has received his memorial, requesting to 
 be furnished with a '* certified copy of all the proceedings taken 
 against him by, and before, a Militia General Court Martial in this 
 Province, witli his defence made before said Court Martial — and 
 copies of the laws or statutes under which such proceedings were 
 had — that he may lay the same, with this petition before Her 
 Majesty, by an early day." In reply to this request His Excellen- 
 cy begs you to inform the Prisoner, that a copy of the Trial, and 
 the documents connected with it, has been transmitted by His Ex- 
 cellency, to the Secretary of State for the Colonies. 
 I have the honor to be sir, 
 
 Your obedient humble servant. 
 
 Mr. Sheriff Jarvis. J. JOSEPH. 
 
 The above was put into my hands by Mr. Sheriff Jarvis. 
 
 10* 
 
114 TESTIMONY OF LT. COL. PRINCE. 
 
 Witness here, also, delivered to the Jadge Advocate the 
 newspaper above mentioned, who read the publications 
 stated in the declaration of Mr. Sutherland, and referred 
 it to the Appendix. 
 
 That witness also recollects a statement made by Mr. 
 Sutherland when he was taken prisoner, which witness 
 desires may now be taken down — that after Mr. Suther- 
 land stated that " they were American citizens going 
 
 Subsequently, and while I was still a prisoner in the hands of the 
 British Government, I addressed a letter to Colonel Fitz Gibbon, 
 who was Judge Advocate of the Court Martial by which I was 
 tried, requesting him to procure for me, " copies of the orders 
 of Sir F. B. Head, then Lieutenant Governor, ordering the 
 the Court by which I was tried, with copies of all the proceedings 
 before said Court Martial on the 1st, 2d, and 3d days of its sittings, 
 with a copy of a paper which was produced before the Court by Co- 
 lonel Prince, purporting to be a record of an examination of myself 
 before three justices of the peace at Amherstburgh in Upper Canada ; 
 together with copies of the proceedings of the said Court, subse- 
 quently to the closing of the testimony, excepting my defence." In 
 reply I received the following : 
 
 Copy of a letter from Colonel Fitz Gibbon. 
 
 Toronto, 7th November, 1838. 
 Sir — On the 5th inst. I addressed a short letter to you acknow- 
 ledging the receipt on that day, of your letter to me dated the 11th 
 ultimo. 
 
 On the 6th I applied, through the civil Secretary of the Lieuten- 
 ant Governor, for His Excellency's leave to give you a copy of such 
 parts of the proceedings of the Court Martial as you desired, and 
 yesterday I received an answer from the Secretary of which the 
 following is a copy : 
 
 I remain, Sir, your Obedient Servant. 
 
 JAMES FITZ GIBBON. 
 Thomas Jefferson Sutherland, Esquire, 
 
 State Prisoner, Quebec. 
 (copy.) 
 
 Government House, ^ 
 6th Nov. 1838. $ 
 Sir— Having laid before the Lieutenant Governor the letters of 
 Thomas Jefferson Sutherland, which you handed me yesterday, I 
 have received His Excellency's commands to inform you, that the 
 request of that person for a copy of the proceedings of the Court 
 Martial held upon him at this city cannot be complied with, as 
 it is unusual to grant copies of proceedings in such cases. 
 
 I return you the letter you gave me ; and have the honor to be, 
 Sir, your most obedient humble servant. 
 
 (Signed.) JAMES MACAULEY. 
 James Fitz Gibbon, Esquire. 
 
CROSS-EXAMINATION OF LT. COL. PRINCE. 
 
 115 
 
 about their business," witness remarked that Americans 
 had no business there in these times, when Prisoner re- 
 plied, that *' hewas goi?ig to Lower Sandusky to endeavor 
 to intercept some persons who had stolen some money from 
 him and his trunk and clothes, ivhile he was in Monroe'^ 
 (17.)— that witness then remarked that he was coming in 
 a direct line from the American to the Canadian shore ; 
 and witness here adds, that he was then at least one mile 
 at this side of the line leading to Sandusky, and his steps 
 were directed towards the Canada shore (18.) — that wit- 
 ness adds, that a line from where the Prisoner was taken 
 to Sandusky, would run in about a south-westerly course, 
 as far as he can judge, and that they, the prisoners, Avere 
 going in a course about south-easterly (19.) he thinks, and 
 if they had pursued the course they had been travelling, 
 they would have been on the Canada shore in about half 
 an hour. Witness states positively that the Prisoner is 
 the same person he saw at Detroit, and whom he took 
 Prisoner on the ice. 
 
 Cross-Examination of the witness Prince, by General 
 Sutherland. 
 
 \st Question. Were you, at the time I was captured, 
 in a certain degree of excitement ? 
 
 Ansiver. I was excited in a little degree ivith pleasure 
 at finding a man ivhom I had desired to meet, I was ex- 
 cited loith pleasure, but nothing else. 
 
 [Prince never approached nearer to me, at the time of 
 my capture, than the distance of fifteen or twenty paces. 
 He appeared to be very much agitated ; and when I walk- 
 ed towards his sleigh, he placed himself on the opposite 
 
 (17.) I made no such statement as this at the time of my capture. 
 It was made at the examination on the day following. 
 
 (18.) If I had been travelling towards the Canada shorC; why 
 did they not wait till I had arrived there ? 
 
 (19.) It is true that I was travelling in a south-easterly direction ; 
 and that direction was a right line from the place from whence I 
 started to Sandusky, as any one may ascertain by an examination 
 of a map of that part of the country. It will also be perceived 
 by an examination of such map, that if an individual be placed up- 
 on the ice, (or on the water,) at any spot at the head of Lake Erie, 
 such individual would never get into Canada by pursuing a south- 
 easterly direction ; the shore of Canada being to the north. 
 
116 CROSS-EXAMINATION OF 
 
 side to that which I approached, and kept himself so that 
 his horses were between us ; and remained so until I had 
 gone to another sleigh, a few rods in the rear, into which 
 I got, and was takea to Maiden. There was no exhibi- 
 tion of pleasure marked in the countenance of Prince ; 
 and his agitation could not have been from fear — as the 
 number of his party forbade that. But, from his subse- 
 quent conduct, I am led to suppose it resulted from his 
 meditating my immediate assassination.] „ 
 
 2^ Question. Might you not have mistaken what was 
 
 said by , at the time of the capture, and after, for 
 
 what had been said by me ? 
 
 Ansioer. Certainly not. said nothing that I 
 
 heard except his asking me whether he was bound to de- 
 liver his sword to Haggerty, when he demanded it by my 
 order ; and I have no recollection of any thing else said 
 by on that occasion. 
 
 3^ Question. Did , at the time of the capture, 
 
 say that we were on American ground? 
 
 Answer. Not in my hearing. I never heard him say so. 
 
 ^th Question. Was it not Sandusky instead of Lower 
 Sandusky, that I named as the place that I was going to ? 
 
 Answer. No. Lower Sandusky was the place named, 
 I am certain. 
 
 [This question was not material. It was put merely to 
 befog the witness, who had shown a determination to an- 
 swer no question I should put to him with any regard to 
 truth. At the time of my capture, I only knew of Sandusky. 
 Of Lower Sandusky I had never heard, but am now in- 
 formed that Portage was once called Lower Sandusky.] 
 
 5th Question. When captured, did I not tell you that 
 we were going to a schooner, that was frozen in the ice 
 near by, for the night ? 
 
 Answer. He did not say so when captured ; hut he said 
 so in about tiventy minutes after ; and I observed upon the 
 improbability of the act, becaitse the schooner had been 
 stranded in the ice all the ivinter, a long distance from the 
 shore^ and ivithout any person^ and loithout any fuel on 
 board. 
 
 Qth Questio7i. How did you know that there was neither 
 persons, nor fuel on board ? 
 
LT. COL. PRINCE. 117 
 
 Ans2mr. I never stated that I did know that there was 
 no persons or fuel on hoard the schooner ; but I had seen 
 her in the same position, blocked up in the ice, about a 
 month before, and I took it for granted that there were 
 neither persons nor fuel on board of her ; and I believe 
 there were not. 
 
 1th (Question. Where did you first see the schooner in 
 question ? 
 
 Ansioer. f first saw the schooner in the place where 
 she was when I captured Mr. Sutherland ; and that place 
 is within the Province of Upper Canada, and not within 
 the loaters of the United States. 
 
 [This schooner, spoken of by the witness Prince, lay 
 frozen in the ice, at the time of my capture, at a distance 
 of about two miles and a half above the West Sister, and 
 within a distance of from tiao to three miles, north from 
 the main shore of Michigan, and all of seven miles 
 within the United States ; the boundary line, as it has 
 been settled between the government of the United States 
 and Great Britain, running between the Islands called the 
 Middle Sister and the East Sister.] 
 
 Sth Question. How far was I from the schooner at 
 the time of my capture ? 
 
 Ansiver. Within half a mile. 
 
 9th Question. Did I not say to you at the time, that I 
 supposed the schooner was within the lines of the United 
 States? 
 
 Answer. I do not recollect any thing of the kind being 
 said. It certainly was not said to me. 
 
 10th Qiiestion. How near were you to the schooner the 
 first time you saw her ? 
 
 Answer. I was on the main land, travelling on the Ca- 
 nada side. 
 
 [I was sent off for Toronto, the next day after my cap- 
 ture. From Maiden, our route was down the shore of the 
 lake for some fifteen or twenty miles. As we travelled 
 on the edge of the ice, I took the occasion to look for this 
 schooner, as we came near opposite the place of my cap- 
 lure, when I observed that the schooner was so far distant 
 from the Canada shore, that from thence nothing could be 
 
118 CROSS-EXAMINATION OF 
 
 seen of her but a speck of the pointed masts ; and I called 
 this fact to the attention of a number of the men belong- 
 ing to the escort, who were of the party by which I had 
 been captured; and who then agreed with me, that I had 
 been captured six or seven miles within the lines of the 
 United States.] 
 
 lltk Question. Was there more than one schooner fro- 
 zen in the ice in the vicinity of my capture ? 
 
 Answer. There ivas one about four miles below, close 
 upon the Canada shore, in the township of Colchester, I 
 believe ; and those were the only tivo I have seen frozen in 
 the ice in that neighborhood. 
 
 12th Question. Had there been any others, were you 
 likely to have seen them ? 
 
 Answer. If there had been any others in that vicinity, 
 within three or four miles of the schooners spoken of, I 
 should have seen them. 
 
 V^th Question, Had the ice been broken, and separa- 
 ted between the shores of the United States and Canada, 
 above the schooner near which I was captured, a short 
 time before ? 
 
 Answer. It is impossible for me to say whether it was 
 or was not broken and separated, not having been in the 
 neighborhood at the time mentioned. I have been at 
 Sandwich where I reside, and which is twenty miles dis- 
 tant, or I have been at Toronto. 
 
 \^th Question. How many miles below Amherstburgh 
 were you when you first discovered me upon the ice ? 
 
 Answer. As far as I can judge from memory, about 
 nine miles. 
 
 15th Question. How long a time, after first discovering 
 me, was it before you pursued ? 
 
 Answer. I think it ivas about tiuenty minutes. 
 16th Question. Were you above or below me, (in re- 
 ference to the current of the waters,) when you left the 
 Canada shore, to pursue ? 
 Ansiver. I was above. 
 
 11th Question. Was I not within three miles of an 
 island, lying in the vicinity of the schooner mentioned, at 
 the time of my capture ? 
 
 Ansiver. Certainly not, as far as I know. The only 
 
LT. COL. PRINCE. 119 
 
 Island with which I am acquainted, is Bois Blanc, and 
 that, I think, must be seven or eight miles, [the true dis- 
 tance was seventeen or eighteen,] from the schooner near 
 which Mr. Sutherland was captured. 
 
 [Bois Blanc, (or White Wood Island,) is situated at the 
 mouth of the Detroit river, directly opposite Fort Maiden, 
 and the village of Amherstburgh, at a distance of only 
 about six hundred yards from the Canada shore ; and can- 
 not be seen from the place where I was captured.] 
 
 ISth Question. To what point of land on the United 
 States shore, was the place of my capture nearest? 
 
 Answer. I am not sufficiently acquainted with the 
 shore on the United States side of the water ; but I think 
 the nearest point must have been at, or beloio, [or beloiv, 
 was added in the record, by the direction of Col. Kings- 
 mill — it was not so stated by Prince,] Gibralter in 
 Michigan. 
 
 [Gibralter, is directly opposite Bois Bla7ic Island; or very 
 nearly so ; and is situated at a distance of from ten toff- 
 teen miles from Hartly's Point, opposite which place, Gir- 
 ty testified to be nearest the place of my capture. Prince 
 put it " at two or three miles below."] 
 
 19th Question. To what point of land on the Canada 
 shore, was the place of my capture nearest ? 
 
 Answer. There is no particular name that I can give 
 to the point of land nearest to the spot where I captured 
 Mr. Sutherland ; but I think it must have been about two 
 or three miles below a place called Hartly's point. 
 
 [At Hartly's Point, the boundary line, as settled between 
 the governments of the two countries, runs within a mile 
 and a half of the Canada shore ; while the distance across 
 the water to the shore of the United States, from any 
 place between two or three miles below that point, cannot 
 be less than 12 miles, and may be as much as seventeen 
 miles.] 
 
 At this part of the cross-examination, the hour of 4 
 o'clock, P. M., having arrived, the President adjourned 
 the court till 10 o'clock of the next day. 
 
FIFTH DAY. 
 
 Tuesday, March 20, 1S38. 
 
 The Court met pursuant to adjournment. Present, the 
 same members as before. The Cross-Examination of the 
 witness Prince, by General Sutherland, continued. 
 
 2()th Question. What is the distance between Amherst- 
 burgh in Upper Canada, and Monroe, in Michigan ? 
 
 Answer. What the distance is across the river, I cannot 
 tell ; but I believe the distance between the shore of the 
 United States, opposite Amherstburgh, and Monroe, is 
 about twenty-five miles. 
 
 21st Question. When you came up with me at the 
 time of my capture, was I on the 7iorth or south side of a 
 line drawn from Amherstburgh in Upper Canada to the 
 nearest point on the shore of Michigan ; and if on the 
 south, at what distance from such line ? 
 
 Answer. It is impossible for me to answer the ques- 
 tion without reference to a map ; but I believe the prison- 
 er was not on the south side but on the east side of such 
 line. 
 
 It was here proposed by the Judge Advocate to produce 
 J. Macauley, the Surveyor General of the Province of Up- 
 per Canada, and to examine him as a witness for the pur- 
 pose of establishing where the boundary line was which 
 had been settled by the government of the two countries. 
 
 To this General Sutherland objected, and insisted upon 
 his right to proceed with the cross-examination of Prince. 
 His objections were, however, over-ruled by the Court, 
 and Mr. Macauley allowed to be called by the Judge Ad- 
 vocate. 
 
 /. Macauley, Surveyor General of the Province of Upper 
 Canada, being duly sworn on the holy Evangelists, states 
 to the Court : 
 
 That certain sheets, which were then produced in 
 Court, (being parts of a map, purporting to show the line 
 established by the Commissioners under the Treaty of 
 Ghent, as the dividing line between the United States and 
 the Province of Upper Canada,) were found by him in his 
 office, remaining there as part of the records thereof — 
 that the line laid down on the maps or sheets produced, 
 
CROSS-EXAMINATION OF LT. COL. PRINCE. 121 
 
 as the boundary line in the neighborhood of AmherStburgh, 
 was not correct — that he knew this only by represisnta- 
 tion. 
 
 The Judge Advocate then stated to the Court that he 
 had no further inquiries to make of Mr. Macauley; and 
 he was directed to stand aside. 
 
 General Sutherland insisted upon his right to cross-exa- 
 mine this witness, but it was denied to him by the Court ; 
 and he was not cross-examined. 
 
 [Upon the production of the sheets, or drawings, which 
 it was alleged would show the boundary line as settled by 
 the commissioners under the treaty of Ghent, I at once 
 perceived that the line as marked on those maps, would 
 have placed me within the limits of the United States, 
 even if I had been captured at the distance of a mile and 
 a half from the Canada shore, at the place which Prince 
 had testified he had taken me, and called the attention 
 of the Court to this fact. It was then said by the members 
 of the Court, that the line marked on the map was not 
 correct, and Mr. Macauley asserted, " that he had under- 
 stood that the line was erroneously laid down on the sheets 
 before the Court." It was then, also, alleged by the Court 
 and by Mr. Macauley, that the sheets produced were 
 but copies of the original maps ; and they were thereupon 
 immediately rolled up and withdra.wn from the Court. I 
 insisted upon my right to examine the maps, as they had 
 been introduced as testimony against me ; and to cross- 
 examine Mr. Macauley in relation to them; yet, the 
 Court refused me both, aild Mr. Macauley picked up his 
 maps and walked off with them.] 
 
 TJie Cross-Examination of the witness Przwce, was then 
 resumed by General Sutherland. 
 
 22d Question. To what point of land did the schooner 
 spoken of as being within half a mile of the place of my 
 capture, lie nearest ? 
 
 Answer. The nearest land was the Canada shore ; but 
 I am unable to designate the place for want of a name 
 to it. 
 
 23^ Question. Was it not within my power to have 
 crossed over to the American side of the line, before you 
 could have taken me ? 
 
 11 
 
122 CROSS-EXAMIxNATlON OF 
 
 Answer. I can only give an opinion on that point. I 
 am of opinion that he could not. 
 
 2^th Question. At what distance might I have seen you 
 approaching me ? 
 
 Answer. He might have seen us from the time we left 
 the Canada shore in pursuit of him, if he had been on 
 the look out. 
 
 [At the time of my capture I was so far from the Cana- 
 . da shore, that by me nothing distinctly could be seen on it. 
 Neither tree, nor house could be discovered with the eye. 
 The land held but one deep, dark and unvaried hue. When 
 I first discovered Prince and his party, they were then from 
 six to eight miles from the Canada shore, and yet so far 
 from me that I mistook their character, and supposed their 
 three sleighs to have been three persons walking upon 
 the ice; and did not become aware that the objects were 
 sleighs until they had crossed the fracture in the ice.] 
 
 25^/i Question. Previous to my examination before 
 you and the other two magistrates, at Amherstburgh, as 
 testified to by you, did I tell you that I had any commu- 
 nication to make to you or any one else ? 
 
 Answer. He did not say so to me personally. 
 
 [See what Prince testified to in his direct swearings in 
 this respect.] 
 
 26^A Question. At the time of the examination at Am- 
 herstburgh, (the 5th inst.) as testified to, did I not say 
 that I had been on Navy Island Avith Mackenzie and 
 Van Rensselaer, and that I had left them in disgust, or 
 because I was entirely dissatisfied with all their proceed- 
 ings ; and that after I had left them, Mackenzie became 
 one of my bitterest enemies ? 
 
 [The object of this inquiry, and of the 27th, which fol- 
 lows, was to rebut any proof which might be offered to 
 establish that part of the Charge which alleged, " that I 
 was joined with William Lyon Mackenzie and other sub- 
 jects, with whom I was in arms against Her Majesty, af- 
 ter the 12th of January," as well as to discredit Prince's 
 pretended record of examination.] 
 
 Answer. He certainly did say, at the time of the exa- 
 mination at Amherstburgh, that he had been on Navy 
 Island with Van Rensselaer and Mackenzie, and that he 
 
LT. COL. PRINCE. 123 
 
 was dissatisfied or disgusted with Mackenzie. But he 
 made no such remark with respect to Van Rensselaer ; nor 
 do I recollect that he said that Mackenzie had become 
 one of his bitterest enemies. He expressed dissatisfac- 
 tion with Mackenzie, as to his military arrangement on 
 the island. He also stated that Mackenzie had been 
 plotting against him on Navy Island. 
 
 27?A Question. At the time of the examination at Am- 
 herstburgh, did I say that I had left Navy Island before 
 the commencement of any hostile operations ? 
 
 Answer. I have no recollection of his having said so. 
 But he stated he was second in command under General 
 Van Rensselaer; and I think he said he left the Island be- 
 fore the destruction of the Caroline. I think he stated, 
 also, that he left on or about the 2Sth of December. 
 
 2Sth Question. Did I state to you on the examination 
 at Amherstburgh, of which ^''ou have testified, that I had 
 employed or joined persons or a party at Cleveland, Ohio, 
 with whom I had come on to Gibralter ; or did I state to 
 you that I had come on from Cleveland, in the same boat 
 with a party of unarmed men who came at their own in- 
 stances; and whose passage money was paid by citizens 
 of Cleveland? 
 
 Answer. I remember nothing that passed on that oc- 
 casion, more than what is contained in the written state- 
 ment before the Court. It is not an examination— hut it 
 contains a voluntary statement of the Prisoner. 
 
 [Prince had introduced this paper to the Court as the 
 record of ^n examination before three Justices of the 
 Peace of the Western District of U. C. ; and it had been 
 denominated as such ; and when he found I was shak- 
 ing its character by the cross-examination, he declined to 
 answer further inquiries. Upon my insisting upon my 
 right, (in accordance to their own laws,) to examine its 
 credit as a record, the Court sustained him in his refusal 
 to answer my inquiries, and Lieutenant Colonel Brown, 
 put into his mouth the last sentence of his answer to my 
 28th question.] 
 
 29fA Question. At the examination, you have testified 
 to at Amherstburgh, did I not make statements which are 
 not contained in the record of that examination you have 
 produced ? — Overruled. 
 
124 CROSS-EXAMINATION OF 
 
 [Upon the presentation of this question it was objected 
 to b}^ the Court. The members declared that there had 
 been 7lo record of examination produced, though the pa- 
 per, in fact, was headed as such ; that the paper w^as 
 but a memorandum of admissions. I then insisted that 
 as my admissions had been given, in part, as evidence, 
 I had a right to have them in full. The question I pro- 
 posed was, however, refused to be put, and the President 
 threw it back to me. The conduct, and the remarks of 
 the members of the Court were so extremely unbecoming 
 in the matter, that some of the spectators hissed them. 
 This induced the President and the Judge Advocate to 
 threaten that the Court should be cleared ; and Prince 
 seemed more vindictive than ever. I was determined, 
 however, to push the inquiry, and endeavor to get out 
 the facts, by varying the manner of the question.] 
 
 30^A Question. Did I not tell you, on the examination 
 at Amherstburgh, of which you have testified, that the pa- 
 per that you then read me, though substantially cor- 
 rect as far as it went, did not contain the explanations I 
 had given — to which you then replied, " that it would take 
 too much paper and time to put it all down;" or words to 
 that effect ? 
 
 Answer. I said nothing of the kind. But when I had 
 read over the statement, I asked him if he wished to add 
 any thing more ; and he stated that if he was aware of 
 the exact position he stood in, with regard to us, he 
 might be induced to offer his services to us ; which left 
 an impressio7i icpon my mind that he was desirous of en- 
 listing in our cause against the Americans. All this was 
 said after the statement had been read oyer to him, by 
 me, and I looked upon it as a conversational remark and 
 therefore did not add it to the statement. 
 
 [At the time of the examination, and ever afterwards, I 
 denied the right of the British to put me on trial by their 
 laws ; and when before the three Justices of the Peace at 
 Amherstburgh, I argued against the right of their govern- 
 ment to try me, as I had not, as I urged, ever received pro- 
 tection from their laws. So, when Prince asked me, as 
 he did, if I would make any further statements to them, 
 I said, ^^ if I knew how I stood, I should, 'perhaps, be more 
 
LT. COL. PRINCE. 125 
 
 at liberty to speak and to ansioer inquiries.''^ Meaning to 
 be understood, (as I believe I was,) " that if I knew that 
 they would not put me upon trial, I should be free to an- 
 swer inquiries." All the rest of Prince's answer to my 
 30th question, is fabrication and falsehood. Prince was 
 aware that it was the Patriot portion of the audience who 
 had hissed; hence he put forth that statement, (for it was 
 no answer to my question,) as a hit upon their feelings.] 
 
 ^\st Question. Did you^ witness, or any other person, 
 at the time of the examination at Amherstburgh, of which 
 you have testified, ask me to sign the paper produced and 
 alleged to contain a record of my statements at that time ? 
 
 Answer. I did not ask him to sign it, nor did any oth- 
 er person in my presence. In my practice as a magistrate, 
 I generally take down the statements of prisoners and read 
 over and explain them to them, and make a minute at the 
 foot, of what they state, after having had the same read 
 over and explained to them ; and I never ask them to sign 
 them. 
 
 32(i Question. On the examination at Amherstburgh, 
 of which you have testified, did I not tell you that I had 
 had no connection with the Patriots, since the middle of 
 February, at which time I had resigned the commission I 
 had held with them ? 
 
 On the presentation of this question, it was objected to 
 by a number of the members of the Court ; and. after some 
 conversation between Greneral Sutherland, the Judge Ad- 
 vocate, and the members of the Court, the Court was or- 
 dered to be cleared ; and when it was again opened, the 
 Judge Advocate rose and said to him, " that he was in- 
 structed to inform him the Court had ruled that his ques- 
 tion should not be put ; and that they had further ruled 
 that if he proposed another question which they deemed ir- 
 relevant, he should not be allowed to propose any more ques- 
 tions for this witness to answer /" 
 
 33^ Question. Has witness ever examined the sword 
 taken from me at the time of my capture. If so, describe it ? 
 
 Answer. I have examined the sword, and it is a taw- 
 dry Yankee sivord. It is remarkably sharp at the end, 
 sharper than swords generally are, and appeared to have 
 been recently ground and whetted. The scabbard is 
 
 11* 
 
126 CROSS-EXAMINATION OF LT. COL. PRINCE. 
 
 washed or plated white, with devices on the outside ; and 
 as he has asked me to describe it, I add that it is of so 
 Jine a?id paltry a character, that 1 believe a British officer 
 loould feel himself disgraced hy wearing it. [Col. Kings- 
 mill then put in hia mouth,] — I consider it to be efficient 
 to thrust with. 
 
 34(fA Question. Did I not tell you at the time of the exa- 
 mination at Amherstburgh, of which you have testified, 
 that I had happened to have the sword in my possession 
 by mere accident, and not with the design of using it for 
 oifence or defence ? 
 
 Upon General Sutherland proposing this question, the 
 Court declared it to be irrelevant, and forbade his propos- 
 ing any more questions for this witness to answer. 
 
 It was then proposed by the Judge Advocate to show 
 by Prince, that a committee of the Legislature of Michi- 
 gan had visited the place at which General Sutherland 
 had been captured, and that they had determined it to be 
 decidedly within the territory of Upper Canada. 
 
 To this General Sutherland objected, and rose for the 
 purpose of stating his objections. But this was refused 
 him, and the Court ordered to be cleared. On the Court 
 being opened, General Sutherland was informed by the 
 Judge Advocate, that the Court had decided, that the pro- 
 posed examination of the witness Prince, should not be 
 crone into : thousfh General Sutherland then consented that 
 it might be. • 
 
 [During the night, immediately after my capture, it had 
 rained incessantly, and covered the ice at the head of 
 Lake Erie, and in the vicinity of the place of my capture, 
 with water to the depth of several inches. This must ne- 
 cessarily have obliterated every vestige of my tracks on 
 the ice, as I had travelled over such spots as were leastxo- 
 vered with snow, and for much of the route, over places 
 where the snow had been entirely driven off by the wind ; 
 and from the rotten an.d broken state of the ice in the im- 
 mediate neighborhood of the place of my capture, on the 
 morning, persons could not have approached it, or have 
 come nigher than at the distance of five or six miles. This 
 fact was known to Prince; and he must have informed 
 the Court, that I would be able to establish it, in case 
 
TESTIMONY OP CAPT. GIRTY. 127 
 
 they went into an examination of the matter. See affida- 
 vits of John Farmer and Benjamin Crittenden in this Ap- 
 pendix.] 
 
 Thereupon, the witness, Prince, was directed to with- 
 draw, and he withdrew accordingly. 
 
 Prideaux Girty, Captain in the Militia of the Pro- 
 vince of Upper Canada, being duly sworn on the holy 
 Evangelists, states to the Court : 
 
 That on the 4th inst. (4th of March, 1838,) he was re- 
 turning from Pele Island, with Colonel Prince and a man 
 named Haggerty — that they were about a mile and a half 
 from Big Creek, which is six miles below Amherstburgh, 
 Colonel Prince said — ^Uhat there were two objects on the 
 ice^^ — that they drove towards Amherstburgh, perhaps 
 the distance of a mile — that they then discovered that the 
 two objects were men — that he mentioned to Colonel Prince 
 that he suspected they were persons wishing to avoid their 
 guard, they (the men on the ice,) being entirely below the 
 usual place of crossing, and recommended that they 
 should pursue and ascertain who they were — that they 
 then drove a short distance from the Canada shore, to- 
 wards that of the United States; and then turned round 
 and drove back agaip, having concluded to go up to An- 
 derson's at Hartly's Point, to obtain fresh horses ; and as 
 they, (the men,) were approaching the Canada shore they 
 thought they, (the men,) would be upon it by the time they 
 returned ; and that if they, (the men,) were not, that they 
 might then pursue them ; but, that they found that they, 
 (the men,) were so near the shore, and meeting two sleighs, 
 Colonel Prince asked the men with them if they would go 
 out with them, that is with him and Mr. Haggerty — that 
 they went into the sleighs and drove off rapidly — that he 
 for a few moments halted at that place with his sleigh ; 
 and as he thought he discovered the persons were running 
 he drove after them — that he M'as, perhaps, at the distance 
 of a quarter of a mile in the rear — that the distance 
 of a mile and a quarter, or not more than a mile and 
 a half from the Canada shore. Colonel Prince came up 
 with the persons they were pursuing — that he perceived 
 
12S TESTIMONY OF CAPT. GIRTY. 
 
 that the Colonel at the moment took a sword from the 
 hands of the largest man of the two, whom he afterwards 
 ascertained to be the Prisoner, Mr. Sutherland — that Hag- 
 gerty went up to the smaller man and took his sword; 
 this he, also, saw — that Colonel Prince and Haggerty 
 with the two men then returned — that as soon as they 
 met us, the Colonel said, " Girty, we have General Suth- 
 erland" — that he, witness, then immediately said, he 
 knew the young man who was with them, having seen 
 him before at Pontiac, at the head of a company of what 
 they called the Patriot army — that he considered the dis- 
 tance from the Canada shore nearest to where Mr. Suth- 
 erland w^as captured, and from thence directly to the Uni- 
 ted States shore, to be about eight miles — that some call 
 it ten miles. [The distance is over thirteen miles.] 
 
 That on the 19th of February, he attended the theatre 
 at Detroit, and there saw Mr. Sutherland, that being the 
 first lime he ever saw him to his knowledge — that on his 
 entering the theatre he saw him addressing the per- 
 sons then present, encouraging the cause of the Patriots, 
 inviting his hearers to come forioard for the relief of the 
 oppressed Canadiaiis — that such were the terms of his ad- 
 dress (1.) — that he, witness, left the theatre before the 
 usual time of their dismissal — that next morning he went 
 to Pontiac ; and from thence to Ann Arbor ; and from 
 thence to Ypsilanti — that he then went to Amherstburgh, 
 and then returned immediately to Monroe in Michigan, 
 where, on Friday evening, the 23d of February, he saw 
 Mr. Sutherland — that evening there was anumber of the 
 persons calling themselves Patriots, in the taverns of the 
 village — that the next morning he saw Mr. Sutherland in 
 the street — that witness immediately left the place and 
 proceeded towards Amherstburgh, following up the rear 
 of the Patriot army, until they crossed to Fighting Island, 
 when he returned to Gibralter and crossed the river to 
 Amherstburgh, where he gave information of what he 
 saw to Colonel Maitland — that he did not again see Mr. 
 Sutherland, until he was captured on the ice — that on the 
 morning of the 5th inst. (March, 1838,) he went with 
 Colonel Prince and Major Lachlan to the fort, [Maiden,] 
 
 (1.) This is all fabrication. 
 
TESTIMONY OF CAPT. GIRTY. 129 
 
 when Mr. Sutherland was brought before them — that he, 
 Colonel Prince, then asked him some questions, and cau- 
 tioned him particularly not to say any thing that would 
 militate against him — that Mr. Sutherland said — " Gen- 
 tlemen, I will tell you frankly :" and stated — " that he 
 had been on Navy Island — and was second in command 
 at that place — that he had, at a certain date," which he 
 does not now recollect, " left*Navy Island and came up to 
 Cleveland, and from that thence up to Gibralter in Michi- 
 gan, nearly opposite Amherstburgh — that Mr. Suther- 
 land, also confessed that he was with the Patriots with a 
 scow or boat, of which they had four or five, on the night 
 of the eight of January — that he had the direction of 
 them — that there had been some disagreement among 
 them as to who should command — that he, witness, then 
 stated that he saw those boats come up to the corner of 
 of Bois Blanc Island, and that he saw two discharges of 
 cannon which took place from the boats — that Mr. Suther- 
 land had further stated on his examination at Amherst- 
 burgh — '* that he had landed on the morning of the ninth 
 of January, on Bois Blanc Island, at the head oi fifty- 
 three men. 
 
 At this part of the examination, the hour of 4 o'clock 
 P. M. having arrived, the President adjourned the Court 
 till 10 o'clock of the next day. 
 
 SIXTH DAY. 
 
 Wednesday, March 21, 1838. 
 
 The Court met pursuant to adjournment. Present the 
 same members as before. 
 
 Girty was again called by the Judge Advocate, who 
 continued the direct examination. 
 
 The copy of the examination of the Prisoner, at Am- 
 herstburgh, was here put into the hands of the witness, 
 Girty. He states that the same was taken at Amherst- 
 burgh in his presence — that Colonel Prince read it over 
 to Mr. Sutherland, and asked him if it was correct, and 
 
130 TESTIMONY OF CAPT. GIRTY. 
 
 that he admitted that it was (1.) — that he, witness was 
 one of the magistrates attending upon that occasion ; and 
 that his name at the foot of the paper, is his signature. 
 
 The Court. [By Colonel Kingsmill.] How long have 
 you lived in tlie Western District of Upper Canada ; and 
 are you acquainted with the country ahout Amherstburgh? 
 If so, state what 3^ou know ahout it. 
 
 Answe7'. I was horn in the township of Maiden, in the 
 Western District of Upper Canada, within two miles and 
 .a quarter of Amherstburgh ; and have lived there for 
 about thirty years of my life. I am well acquainted with 
 the coast along from Amherstburgh to Point Pele, and in 
 particular that part about two and a half miles below 
 where I live, called Bar Point ; also, called Harily^s 
 Point, which is the nearest point on the Canada shore to 
 the place where Mr. Sutherland was taken. The nearest 
 place on the United States shore, is Point Mouillee. To 
 the best of my belief, and to be within limits, I state the 
 distance from where Mr. Sutherland was captured to Point 
 Mouillee, at four miles and a half ; and also that it is 
 usually said to be about eight miles from shore to shore. 
 I, also, again state that the distance from the Canada shore 
 to where Mr. Sutherland loas captured to be withhi a mile 
 and a half 
 
 [In his direct examination, Girty says, that the place 
 where I was " captured was not more than a mile and a 
 half from the Canada shore." This he repeats in his 
 answer to the cross-examination by the Court. He, also, 
 says in his direct examination — " that at the place of 
 my capture he considered it to be about eight miles 
 from shore to shore." But, also says, " that it is 
 called by some ten miles." In his answer to the cross- 
 examination by the Court he says, " it is usually stated to 
 be about eight miles from shore to shore." He, also, says, 
 " that to the best of his belief, it is four miles a7id a half 
 from the place where I was captured to the shore of the 
 United States, at Point Mouillee." Now, observe how 
 these statements tall)'. If the distance across is ten 
 miles, as Girty said, some call it, and I was four and a 
 half miles from our shore, then I was captured five and a 
 
 (1.) See note 16 to the testimony deposed by Prince. 
 
CROSS-EXAMINATION OF CAPT. GIRTY. 13 1 
 
 half miles from the Canada shore, instead of one and a half 
 miles, as he swears. If the distance across is eight miles, 
 as he swears, he understood it to be, and I was captured 
 four and a half miles from our shore, I was captured at 
 the distance of three and a half miles froni the Canada 
 shore, instead of one and a half, as he swears. Either 
 of these statements establish the place of my capture to 
 have been within the lines of the United States ; for, the 
 boundary line as established at that place, between the 
 two countries, is located at the distance of only about 
 one mile from the Canada shore. The distance from 
 Hartly's Point to Point Mouillee is thirteen miles ; and 
 if it was true that I was captured at a distance of four 
 and a half miles from Point Mouillee, I was then taken 
 at a distance of eight and a half miles from Hartly's 
 point, and all of seven miles within the lines of the Uni- 
 ted States.] 
 
 Cross-Examination of the witness Girty, by General 
 Sutherland. 
 
 1st Question. At what hour of the day did your party 
 capture me ? 
 
 Answer. I think it was between four and five o'clock 
 in the afternoon. 
 
 2d Question. At the time of my capture did you ob- 
 serve a schooner frozen in the ice, in that vicinity ? If so, 
 what distance were you from the schooner at the time of 
 my capture ? 
 
 Answer. I saw a schooner frozen in the ice, at the dis- 
 tance, as I should judge, of about two miles, or very near 
 that. 
 
 Sd Question. Did you see any other schooner frozen 
 in the ice, near where my capture took place ? 
 
 Answer. I did not. 
 
 4:th Question. Was there a travelled road on the ice 
 between Point Mouillee and Hartly's Point ? 
 
 Answer. Not in that direction. 
 
 5th Question. Did you see an island near the schoon- 
 er you have mentioned ? If so, what direction did the 
 island bear from it ; and how far distant was it from the 
 schooner ? 
 
132 CROSS-EXAMINATION OF 
 
 Answer. I did not see an island. There is no island 
 nearer the schooner than Bois Blanc, or Sugar Island, 
 both of which lie at a distance from where the schooner 
 then was of more than four miles. 
 
 6th Question. Is not the island called the West Sis- 
 ter, to be seen from where the schooner lay, or from the 
 Canada shore three miles below Hartly's Point ? 
 
 Answer. In a very clear day you can discover it with 
 the eye. It is not less than 15 miles distant from Hart- 
 ly's Point. 
 
 [The true distance from Hartly's Point to the island 
 called the West Sister, is about 15 miles, in a south-west- 
 erly direction. In clear weather, it can be very plainly 
 seen from Hartly's Point, or from any place within three 
 miles below, as I observed on passing along the Canada 
 shore, on my way to Toronto, the day after my capture.] 
 
 7th Question. After you started in pursuit of me, what 
 was your course on the ice ? and what length of time 
 elapsed before I was overtaken by Prince and his party 
 after he had left the Canada shore? 
 
 Answer. It was nearly in a southerly direction. I 
 think it could not be more than ten minutes from the time 
 Colonel Prince got into the sleigh he met, until he over- 
 took Mr. Sutherland. 
 
 Sth Question. Was I running, or walking, when you 
 may suppose I must have seen Prince and the sleighs in 
 pursuit ? 
 
 Answer. I was under the impression that Mr. Suther- 
 land was running, and that he had run for more than a 
 quarter of a mile. 
 
 [In his direct examination, it will be seen that Girty, 
 (as well as Prince,) swears that I was going towards the 
 Canada shore ; and upon his cross-examination, that I 
 was travelling in a southerly direction. Now, from the 
 place where either Prince or Girty locate the ground of 
 my capture, the Canada shore is situated directly to the 
 north ; and the situation of Portage, (Lower Sandusky,) is 
 nearly as direct to the south. Sandusky, proper, lies to 
 to the east of south. 
 
 Again ; in his direct examination, as it will be seen, 
 Girty testified, " that he had halted ; and that he had then 
 
CAPT. GIRTY. 133 
 
 drove after me, as lie thought he discovered that I was 
 running" — ^[towards the Canada shore ?) In his cross- 
 examination, he also repeats, " that he wsls under the im- 
 pression that I was running" — and had continued to do 
 so for some distance.] 
 
 9th Question. At w'-hose house in Monroe, did you see 
 me on the Friday evening you have mentioned in your 
 direct examination ? 
 
 Anstver. It was at a puhlic inn. Whose, I do not re- 
 member. 
 
 10th Question. Did you say you followed the Patriot 
 army from Monroe to Fighting Island ? If so ; did you 
 then, or after, see me with the Patriot army ; or do you 
 know of my having any connexion with them after you 
 saw me at Monroe, on the occasion you have mentioned 
 in your direct examination ? 
 
 Answer. I did follow the Patriot army from Monroe 
 to Fighting Island ; but I did not see Mr. Sutherland 
 with them; and I do not know that he had any connexion 
 with the Patriot army after I saw him at Monroe. 
 
 Wth Question. At any time on the same day and be- 
 fore my capture, did you observe me meet a sleigh go- 
 ing from the Canada shore to that of the United States — 
 and the sleigh to stop with me for any time ? 
 
 Answer, No. 
 
 12th Question. At the time of my capture, was it a 
 clear sun-shiny day ? 
 
 Answer. It was a tolerably clear or fair afternoon. 
 
 l^th Question. At the time of my examination at Am- 
 herstburgh, did I not tell you that at some time in the 
 early part of February last, I had dissolved my connexion 
 with the Patriots of Upper Canada,^ as I then believed I 
 had been deceived as to the intentions of the people of 
 the Province ; and that I had made a formal resignation 
 of my command, and made the same known in Michigan. 
 That I had determined to write a book for publication, 
 giving a true account of the proceedings of the Patriots 
 of Upper Canada ; or words to that effect ? 
 
 Answer. After the statement was made and signed by 
 the magistrate, Mr. Sutherland spoke to this effect: [Af- 
 ter the examination, as it was called, Avas shown to me, 
 12 
 
134 CROSS-EXAMINATION OF CAPT. GIRTY. 
 
 I had no farther conversation with either Prince, Lach- 
 lan, or Girty. or in their presence.] " That he had re- 
 signed; that he was going east to write a book ; that if 
 he knew how he stood with us he might he useful to us /" 
 [A vile perversion of the fact.] Which left an impression 
 on my mind that he wished to be Queen's evidence. [See 
 note to Prince's testimony on the same matter.] Also, 
 to the effect that he had been deceived as to the inten- 
 tions of the people of Upper Canada. 
 
 14^A Question. At the time of my examination at Am- 
 herstburgh, in answer to an inquiry from Colonel Prince, 
 did I tell him in your presence, that I had had no connex- 
 ion whatever with the persons who had been in arms on 
 Fighting Island, or on Pele Island. That I was not 
 aware of having ever seen any of the persons said to have 
 been on Pele Island, except Captain Van Rensselaer. 
 That I had never in my life been on Pele Island ? Or, 
 have you, at any time, heard me make such a statement ? 
 
 Ansioer. I do not know that Colonel Prince ever made 
 any such inquiries of Mr. Sutherland ; nor do I recollect 
 that any one else put any such questions to him at the 
 time of the examination. I think that while he was on 
 the ice, after his capture, I asked him if he had not 
 been on Fighting Island; and he answered, "No." I 
 asked him then whether he knew the persons who had 
 been shot on Pele Island. He said that he did not know 
 any other than Captain Van Rensselaer. 
 
 [I never spoke to or exchanged a word with Girty, un- 
 til I was brought before him in the officers' guard-room 
 at Fort Maiden. Nor did he speak to me, or make any 
 inquiries of me on the ice.] 
 
 \5th Question. Did I make any statement of facts at 
 the time of my examination at Amherstburgh, which are 
 not contained in the record of that examination now in 
 court, and to which you have sworn ? 
 
 Major Gurnett. There is no record of an examination 
 in Court. 
 
 Captain Powel. It is no examination; but a confes- 
 sion. 
 
 General Sutherlayid. It has been sworn to as an ex- 
 
TESTIMONY OF MATTHEW HAYES. 135 
 
 amination ; and it has been called such, by the Court ever 
 since its production. 
 
 Lt. Col. Brown. It has not. No body has called it an 
 examination. 
 
 Col. Kingsmill. Mr. Sutherland, this paper is not re- 
 garded by the Court as a record of an examination, but 
 merely as a memorandum of your confessions. 
 
 General Sutherland. Then, if the paper be considered 
 a mere memorandum of the matters it is alleged I con- 
 fessed, I have the right to have all those confessions; and 
 all that I said at the time, I have the right to show to the 
 Court by this witness. 
 
 Col. Kingsmill. You can show nothing now, different 
 from what the paper contains. If the paper did not con- 
 tain all that you had stated, it was your time to have ob- 
 jected when it was read to you at Amherstburgh, by Col. 
 Prince. 
 
 Major Gurneit. I'll not consent that the Prisoner puts 
 any more questions to this witness, concerning that paper 
 or his own stories. 
 
 The President, Col. Jarvis. This question cannot be 
 put ; and as we have decided this to be irrelevant, you 
 can put no more questions to this witness. 
 
 Judge Advocate. Captain Girty, you may stand aside. 
 Thereupon the witness withdrew. 
 
 Matthew Hayes, Late a Sergeant in Her Majesty's 
 15th Kegt. of foot, being duly sworn on the holy Evan- 
 gelists, states to the Court : 
 
 That he went to Navy Island on the twenty-first day of 
 December, 1837 — that after he got there, William Lyon 
 Mackenzie, asked him " what brought him there" — that 
 he told him he came for the purpose of seeing the Island 
 — that Mackenzie then told him that he could not leave 
 the Island — that he saw General Sutherland on the beach 
 v/hen he landed — that there was a Mr. Gorham, whom 
 he understood came from New-Market in Upper Canada 
 — that he, (Mr. G.) told witness, that he came from New- 
 Market — that Mr. Gorham acted as Aid-de-Camp to Ge- 
 neral Van Rensselaer — that he|saw General Sutherland on 
 Navy Island, from time to time, from the 21st to the 28th 
 
136 TESTIMONY- OF MATTHEW HAYES. 
 
 or 29th of Dec. — that he cannot be positive which — that 
 he was in the capacity of second in command of the Pa- 
 triot forces — that he was Brigadier General — that he saw 
 General Sutherland leave Navy Island — that it may have 
 been on the 2Sth or 29th of Dec. but was not positive of 
 the day — that General Sutherland carried a cavalry sword 
 in the usual form — that there were no people in uniform 
 on the island — that they were in general, armed with 
 guns, swords, pistols and pikes — that some of the men 
 had charge of cannon — that General Sutherland addres- 
 sed the men on the Island the day he left it ; and gave 
 up the command he held there to Major Vreeland, who 
 took his place — that in his address to the men, General 
 Sutherland said, " they were embarked in a glorious 
 cause," and he " implored the God of battles to direct 
 and prosper them." 
 
 The Court. [By Lt. Col. Brown.] Have you before 
 seen Mr. Sutherland since he left the island ? If so ; 
 state when. 
 
 Ansioer. I have not seen him since he left Navy 
 Island, until I came into Court here. 
 
 The Court. [By Lt. Col. Brown.] Did you see any 
 other British subjects on Navy Island, whose names you 
 did not know ? 
 
 Answer. There were forty or fifty persons on Navy 
 Island ivhom I understood were British subjects. Many 
 of them told me so themselves. I have had opportunities 
 of conversing with them, and I have no doubt of their be- 
 ing British subjects. 
 
 [All this was put into the mouth of the witness by Lt. 
 Col. Brown and Major Gurnett. I objected to the testi- 
 mony, (if testimony it could be called,) but my objec- 
 tions were overruled. What puzzled me the most was, 
 to understand how Hayes could know any person to be a 
 British subject without ever knowing his 7iame.] 
 
 The Court. [By Col. KingsmilL] Did they form a 
 part of the hostile force on Navy Island ? 
 
 Answer. Yes. 
 
 The Court. [By Major Gurnett.] Do you recollect a 
 man named Switzer who was on the island ? 
 
 Ansiver. I do not. 
 
CROSS-EXAMINATION OF MATTHEW HAYES. 137 
 
 Cross-Examination of the witness Hayes, by General 
 Sutherland. 
 
 1st Question. Did you ever see me in conversation 
 with William Lyon Mackenzie on Navy Island ? 
 
 Answer. Yes. 
 
 2d Question. At what place on the island ; and what 
 was the subject of conversation ? 
 
 Answer. I saw Mackenzie in conversation with Gene- 
 ral Sutherland, at the place called Head -Quarters; but 
 the subject of the conversation I know not, 
 
 3c? Question. Did you see me on Navy Island after the 
 burning of the steamer Caroline ? 
 
 Answer. No. 
 
 Ath Question. Where on Navy Island did you first see 
 me? Were there any peculiar circumstances in the 
 meeting? If so; state them. 
 
 Answer. I first saw General Sutherland on the beach 
 at the usual place of landing, near Head-Quarters. As 
 to particular circumstances, there were none that I know 
 of. 
 
 5tk Question. Where on Navy Island did you first 
 enter into conversation with me ; and what was the sub- 
 ject of that conversation ? 
 
 Answer. My first conversation with General Suther- 
 land was on the beach near Head Quarters. The sub- 
 ject of the conversation I do not recollect. 
 
 6tk Question. Who was in command of Navy Island 
 while I was there ? 
 
 Answer. General Van Rensselaer. But he was some- 
 times absent, and then General Sutherland commanded. 
 
 1th Question. Do you know to what country General 
 Van Eensselaer belonged ? or, do you know that he was 
 a British subject ? 
 
 Answer. I understood that he was an American ; that 
 is, a citizen of the United States. 
 
 Sih Question. Were there any batteries on Navy Isl- 
 and at the time you say I left it ? 
 
 Answer. There was one on the western extremity of 
 the island. 
 
 9?A Question. Do you know of your own knowledge 
 that General Van Rensselaer was absent from Navy Isl- 
 12* 
 
138 CROSS-EXAMINATION OF 
 
 and, 'between the 21st and 29tli of December last ? If 
 SO ; do you know that the absence of General Van Rens- 
 selaer was known to me at the time ? and if so ; on what 
 days of the said month of December was General Van 
 Rensselaer absent from the island ? 
 
 Answer. He was absent to my knowledge. I also 
 heard General Sutherland say he was absenjj. I stopped 
 in the quarters of General Sutherland, and thus I came 
 to know it. I cannot well remember the particular days. 
 
 At this part of the cross-examination, the hour of four 
 o'clock P. M. having arrived, the President adjourned the 
 Court till ten o'clock of the next day. 
 
 SEVENTH DAY. 
 
 Thuhsday, March 22, 183S. 
 
 The Court met pursuant to adjournment. Present the 
 same members as before. 
 
 The Cross-Examination of the witness Hayes, by Gen- 
 eral Sutherland, continued. 
 
 IQth Questio7i. To what shore did I proceed when 
 I left Navy Island ? To the shore of the State of New- 
 York, or of Canada ? 
 
 Ansiver. To the shore of New- York. 
 
 Wtk Question. Did you learn from Willian Lyon 
 Mackenzie, while on Navy Island, that he was on un- 
 friendly terms with me, before, or at the time I left ? 
 
 Ansiver. I did not. 
 
 V2th Question. Did you learn from me, while I was 
 on Navy Island, that I was unfriendly to Mr. Mackenzie ; 
 or, that I had any difference w^ith him ? 
 
 Answer. I did not. 
 
 V^th Question. Did you know that William Lyon 
 Mackenzie had said to me before I left Navy Island, that 
 he, Mr. Mackenzie, wished me to go off from the island ? 
 
 Answer. I did not. 
 
 \^th Question. How, or by whom, or from whom, 
 
MATTHEW HAYES. 139 
 
 were the provisions and military stores used by the force. 
 on Navy Island, procured or furnished? 
 
 Answer. I understood they were furnished by citizens 
 of the United States. They were brought to Navy Isl- 
 and from the United States shore. They were brought 
 both by citizens of the United States and by Canadians. 
 Provisions wqre so brought to the island during the time 
 General Sutherland was there. 
 
 I5th Question. What Canadians brought provisions to 
 Nav}^ Island while I was there ? 
 
 Ansiver. There was one M'Carthy, and one Coronan, 
 who acted as boatmen. M'Carthy belonged to the Pa- 
 triots on Navy Island, and Coronan belonged to the Ca- 
 roline steamer. He told me so himself. 
 
 [The last sentence was put into the witness's mouth 
 by Major Gurnett. M'Carthy was a citizen of the United 
 States, and a native of the State of Pennsylvania, as I 
 happen to know. Coronan, I know nothing of — there 
 may have been such a man with the Patriots, and there 
 may have not.] 
 
 \%th Question. I understood you to state, yesterday, 
 that you did not know the names of any of the persons 
 at Navy Island, you supposed to be British subjects, ex- 
 cept two. How do you account for the discrepancy ? 
 
 Answer. I could not bring them to recollection yes- 
 terday. 
 
 V7th Question. Who did the men, you have mentioned, 
 inform you, furnished the provisions which were brought 
 to Navy Island ? 
 
 Answer. I do not know who furnished the provisions. 
 The men told me they took them in at Schlosser. 
 
 \^th Question. Did you say you came to Navy Island 
 not with the intention, nor for the purpose of joining the 
 Patriot forces there at the time ; and that you was detain- 
 ed there against your will ; and do you mean to testify- 
 that you went upon Navy Island merely to gratify your 
 curiosity ; and did you consider yourself a prisoner while 
 there, detained against your will ? 
 
 Answer, I went to Navy Island for the purpose of not 
 joining the party ; General Sutherland told me not to make 
 myself uneasy, as I might stop with him in his quarters ; 
 
140 CROSS-EXAMINATION OF 
 
 I do mean to say that I was detained there against my 
 will. I do mean to say that I went to Navy Island 
 merely to gratify my curiosity. I did consider myself a 
 prisoner there, not being allowed to return in the boat, 
 there being a guard on the beach, who had orders from 
 General Sutherland, Mr. Gorham, and Mr. Mackenzie, 
 to allow no person to leave the Island without their leave. 
 [All these answers, save the first, the witness was helped 
 to by Colonel Kingsmill, Lt. Col. Brown and Major Gur- 
 nett.] 
 
 19th Question. When did witness leave Navy Island ; 
 and under what circumstances ? 
 
 Answer. I left Navy Island on the 4th of January, in 
 the absence of Mr. Mackenzie, by obtaining leave of 
 General Van Eensselaer ; which I did on condition of re- 
 turning that evening. General Van Rensselaer told me 
 to go to Captain Harper, and obtain a pass from him ; 
 which I did, and took it to General Van Rensselaer, and 
 he approved of it. 
 
 20^A Question. Did you hold any rank, or did you ex- 
 ercise any office on Navy Island after I left there ; or 
 were you then and there ranked above a common senti- 
 nel 1 
 
 Answer. General Sutherland said, that I was to act as 
 Adjutant, and I did so through fear ; and I continued to 
 act in that office until a friend of Major Vreeland came to 
 the Island, who was appointed to the office ; I being dis- 
 placed, in consequence of not acting efficiently. 
 
 ^\st Question. Did I ever make any threat to )^ou on 
 Navy Island ? If so; what was it — and who was present ? 
 
 Ansiver. No. 
 
 22d. Question. Are you a prisoner at this time in this 
 Province, charged with the commission of high treason, 
 or of any other offence against Her Majesty the Queen 
 of Great Britain ? If so ; have you been promised, or do 
 you expect a reprieve or pardon, or any mitigation of the 
 penalties of your offence, in consideration of testifying on 
 this trial against me ; or have you directly or indirectly 
 received any promise of benefit, or reward for so testify- 
 ing ; or do you expect the same ? 
 
 Answer. I am a prisoner ; but I do not know on what 
 
MATTHEW HAYES. 141 
 
 charge ; I have not been promised any pardon or mitiga- 
 tion of penalty; nor have been promised any fee or re- 
 ward for testifying on this trial; nor do I expect any. 
 
 23^ Question. Have you conversed with any person 
 or persons engaged on or with this trial, or the prosecu- 
 tion of this suit against me in relation to what you should 
 testify on this trial, or in relation to what you knew of 
 my having been on Navy Island ? If so ; name the per- 
 son or persons with whom the conversation was had, and 
 the substance thereof? 
 
 Answer. Yes. I have had a coversation with the Judge 
 Advocate. He said General Sutherland was a prisoner ; 
 and asked me if I knew him. I said I did know him to 
 have been on Navy Island part of the time I was there. 
 He asked me if I was satisfied to give evidence against 
 him ; and I said I was. Nothing else passed as I now re- 
 collect ; I had no conversation with any one else on the 
 subject. 
 
 24?A Question. Was it usual with me while I Was on 
 Navy Island, to detain all persons who came there; and 
 were those prevented from leaving without the consent of 
 General Van Rensselaer ? 
 
 Ansiver. Not in all cases. Those who were on the 
 Island were prevented from leaving it without leave of 
 General Van Rensselaer, General Sutherland, Mr. Mac- 
 kenzie or Mr. Gorham. 
 
 25th Question. Were there any other persons besides 
 yourself who came to Navy Island from motives of curio- 
 sity, detained there while you was there ? If so ; were 
 any such persons appointed to offices ? and was such a 
 course usual ? 
 
 Answer. There Was one other person, who said he 
 was detained against his will, who was appointed to an 
 office, and he was the only one I know of. That person, 
 I think was named Rodgers. I know that he wanted to 
 go off but was prevented, and threatened to be confined 
 as a prisoner if he attempted to get away from the Island. 
 
 2Qth Question. Was Rodgers on Navy. Island at the 
 time I was there ? 
 
 Answer. Yes. 
 
 21 th Question. What office did Rodgers hold ? 
 
142 CROSS-EXAMINATION OF 
 
 Answer. He was told that he was to act in the capa- 
 city of Sergeant ; [and the witness was made to say, by the 
 help of Colonel Kingsmill,] and he did act as Sergeant ; 
 and he was compelled to do so. 
 
 28th Question. To what country did Eodgers belong ? 
 
 Answer. He told me that he was from Upper Canada, 
 near Chippewa. I have to add that I have no knowledge, 
 myself, of what country he was a native. 
 
 29^A Question. You stated, as I have understood you, 
 that you were afraid to leave Navy Island. What rea- 
 son had you to be afraid ? 
 
 Answer. The orders on Navy Island were, that any 
 person leaving the island without permission, was to be 
 fired on, if they did not return when ordered. 
 
 20th Question. Did you hear me say while on Navy 
 Island, that I had nothing to do with Mackenzie, and that 
 I would have nothing to do with him? 
 
 [The object of this question was two fold. 1. It was 
 necessary to befog the Court, as well as the witness, as 
 they would not allow him to answer any question which 
 had a weight in my defence, if they could perceive the 
 bearing. 2. It was essential for me to establish the nega- 
 tive of that part of the Charge which alleged, " that I 
 was joined to William Lyon Mackenzie." 
 
 Answer. I never heard him say so. 
 
 2\st Question. Did you ever apply to me for leave to 
 go from the island ? 
 
 A?isiver. I do not recollect that I did. 
 
 32d Question. Did Mr. Mackenzie exercise any mili- 
 tary command on Navy Island while I was there ; or did 
 he assume to direct or command any person who acted as 
 officers and soldiers on Navy Island, while I was there, 
 to your knowledge ? 
 
 Ansiver. Nothing further than preventing people from 
 leaving the island. I recollect that on one occasion, Mr. 
 Mackenzie exercised this authority when General Suther- 
 land was present. [This is a fabrication.] I think Gen- 
 eral Sutherland must have been close enough to hear. I 
 was one of those who wished them to leave the Island. 
 
 336^ Question. Do you know from what country and 
 from what place the arms and munitions of war you saw 
 
MATTHEW HAYES. 
 
 143 
 
 on Navy Island were brought, or by whom they were 
 brought ? If so ; state. 
 
 Answer. I saw a company come to the island, consist- 
 ing of about 40 or more individuals, Americans and Cana- 
 dians, who were armed with muskets, rifles, swords and 
 pistols. I think those came from Schlosser, in the state 
 of New-York, to the Island. 
 
 [This statement to which I objected, as it was not an 
 answer to my question, was manufactured for the witness 
 by one of the members of the court.] 
 
 Here the Cross-Examination of the 'witness Hayes, by 
 General Sutherland, was interrupted by the Court. 
 
 The Court. [By Major Gurnett.] Are you aware 
 that there was a provisional government established on 
 Navy Island ? If so ; who were the members of that go- 
 vernment ? 
 
 Answer. There was a proclamation on the island es- 
 tablishing a provisional government ; and Mackerizie was 
 chairman of it pro tern. [This part of the answer was 
 manufactured by Lt. Col. Brown.] I think that Nelson 
 Gorham and Silas Fletcher were of the number. 
 
 The Court. [By Major Gurnett.] Were the military 
 forces over which General Sutherland was seen to com- 
 mand, acting under the orders of that government ? 
 
 Answer. Yes. 
 
 The Cross-Exabiination of the witness Hayes, by Gen- 
 eral Sutherland, resumed. 
 
 34?A Question. How do you know the fact, witness, 
 that the military forces on Navy Island were acting un- 
 der the orders of a provisional government, while I was 
 there ? 
 
 Answer. I was told by Mr. Mackenzie that he was the 
 person who was the author of the proclamation published, 
 and placed upon the island in different places. [This 
 answer was manufactured for the witness, by Colonel 
 Kingsmill, Lt. Col. Brown and Major Gurnett.] 
 
 ^5th Question. You have said that there was a pro- 
 visional government on Navy Island. Please define the 
 powers of that government ; and state by whom granted ; 
 and by whom exercised ; and what acts were done ? You 
 may answer, also, if the proclamation of which you have 
 
144 CROSS-EXAMINATION OF 
 
 testified, was circulated on Navy Island while I was there ; 
 and what were the offices of the provisional government, 
 and who received them ? 
 
 Answer, I know that they invaded a part of Upper 
 Canada, and held it against the authorities of the British 
 government ; [This was put in the witness's mouth by 
 Major Gurnett ;] and that they had a flag fl5dng with the 
 word " liberty,'''' and two stars on it. This power was 
 granted by Mr. Mackenzie and others on the island. Of 
 their acts, I knew them to fire on the inhabitants of Cana- 
 da from the island. [This was put into the mouth of the 
 witness by Lt. Col. Brown.] The hand-bill, or procla- 
 mation, was circulated on Navy Island while General 
 Sutherland was there. Mr. Mackenzie was Chairman of 
 the committee who framed the proclamation, but I cannot 
 name the other ofiicers. [This was put into the mouth of 
 the witness by Major Gurnett.] 
 
 36?A Questio7i. Do you know, by whom the flag you 
 speak of was put up on Navy Island ? 
 
 Ansiver. I do not. It was flying when I went there. 
 
 37^A Question. Do you know, witness, by whose per- 
 mission, or by what authority. General Van Rensselaer, 
 myself, or any other citizen of the United States, were on 
 Navy Island ? If so ; state it. Can witness say that they 
 were not on Navy Island, by the order or permission of the 
 Government of the State of New-York ; or of the Govern- 
 ment of the United States ; or of the Government of Her 
 Brittanic Majesty ? 
 
 Amwer. They assumed the authority iheinsehes, of 
 their own accord. [This was put into the mouth of the 
 witness by Lt. Col. Brown and Major Gurnett.] I do not 
 know that they had any from the government of the State 
 of New-York, or from the government of the United 
 States. [This was put into the mouth of the witness by 
 the Judge Advocate.] I know they had no authority from 
 the government of her Brittanic Majesty. [/Z>.] 
 
 ^Sth Question. Have you stated on your direct exami- 
 nation, all that was material, said by me to the men on 
 Navy Island, at the time I was about to leave ? 
 
 Answer. I do not recollect any thing more of import- 
 ance. 
 
OF MATTHEW HAYES. 145 
 
 39^^ Question. Was John S. Vreeland a citizen of the 
 United States, to your knowledge ? 
 
 Answer. I have heard it said, he was ; but I do not 
 know. I should think he was a citizen of the United 
 States. 
 
 4tOth Question. You have testified that you saw Wil- 
 liam Lyon Mackenzie on Navy Island. Did you ever see 
 him wear any kind of arms while I was on the Island ? 
 
 Answer. I saw Mr. Mackenzie carry pistols in his 
 breast during the time General Sutherland was on the 
 Island. 
 
 4:1st Question. At the time of the first conversation 
 you had with me on Navy Island, did you not tell me that 
 Mr. Mackenzie was your particular friend ; and that you 
 had come to Navy Island to see him ; and that you had 
 been persuaded by him to stay on the Island ? 
 
 Answer. I do not recollect any thing of the kind. 
 
 42^ Question. What has been your occupation during 
 the past year ? 
 
 Answer. I was attached to a schooner on Lake Onta- 
 rio during the summer months. After leaving the schoon- 
 er, I lived in Toronto until the 31st of October last. 
 
 43^ Question. Had you been an inhabitant of the 
 State of New- York for some months previous to your go- 
 ing upon Navy Island ? If so ; state how many months, 
 and at what places you have resided in said State ? 
 
 Answer. I was not a resident or inhabitant of the State 
 of New- York. But I was some time in Rochester, and 
 some time in Bufialo, trading. 
 
 44th Question. Have you before testified or been ex- 
 amined concerning your having been on Navy Island, and 
 about what transpired there ? If so ; did you then state, 
 or testify concerning those matters as you have now testi- 
 fied ? 
 
 Answer. I came of my own accord to Waterloo, oppo- 
 site Black Rock, and was there asked by Colonel KirW, 
 " what my business was ?" I told him that I had come 
 from Navy Island, and showed my pass from thence. I 
 told him all I knew of Navy Island. I was then sent to 
 Chippewa, where I saw Col. McNab, in the evening with 
 §ome other officers ; and I stated to him the same I did to 
 
 13 
 
146 CROSS-EXAMINATION OF MATTHEW HAYES. 
 
 Colonel KIrby, as nearly as I could recollect. Colonel 
 McNab then desired me to call on him again the next 
 morning ; and I called on him the next day, which was 
 the 14th or 15th of January, when a magistrate was sent 
 for, before whom I made a statement, like that which I 
 made the day before, and partly the same as I have made 
 before this Court. The same hi suhstayice. [This last 
 sentence was put into the mouth of the witness by the 
 Judge Advocate.] 
 
 ^th Question. While on Navy Island, witness, did 
 you tell me that Mr. Mackenzie had assisted you in get- 
 ting some office in Toronto ; and that he had done you 
 many other favors ? 
 
 Answer. No. 
 
 46?A Question. Where were you, and in what busi- 
 ness were you engaged, from the 4th of January, when 
 you have testified that you obtained your pass on Navy 
 Island, to the 13th of the same month, when you have 
 testified you crossed to Waterloo ? 
 
 Answer. After I left Navy Island, I discovered that I 
 had left a coat of mine behind, and waited two or three 
 days at Schlosser to recover it. I then went to Buffalo, 
 where I remained until the l?»th of January, when I cross- 
 ed over to Waterloo. 
 
 It was then signified to the Court by General Suther- 
 land, that the cross-examination on his part was closed. 
 Whereupon, the Judge Advocate acquainted the Court 
 that he rested the proofs on the part of the prosecution. 
 
 The Prisoner, General Sutherland, then being called 
 upon by the Court for his defence, prayed the Court to 
 grant him time until Thursday, the 29th day of March 
 inst., to send for his witnesses, and to prepare a defence 
 in writing ; and the Court granted the same. 
 
 Thereupon the President adjourned the Court till 
 Thursday the 29th day of March, inst.. at 10 o'clock, A. 
 M., of that day. 
 
 The Court met pursuant to adjournment on the 29th of March, and then 
 from adjournment to adjournment, imtil the ISth day of April, when it was 
 dissolved : it having found General Sutherland guilty of the Charge ; and fix 
 ed upon him a sentence ; though the preceeding is a full and perfect report" 
 of all of the testimony adduced on the trial. 
 
THE LAW ENACTED BY THE PROVINCIAL PARLIA- 
 MENT OF UPPER CANADA, ON WHICH THE PRE- 
 CEDING TRIAL WAS PREDICATED. 
 
 An Act to protect the iiihdbitants of this Promnce agazTist 
 lawless aggressions from Subjects of Foreign Coimtries, 
 at Peace with Her Majesty. Passed 12th January, 
 1838. 
 
 Whereas, a number of persons, lately inhabiting the 
 State of New-York, or some of the ether United States of 
 America, have within the said State of New-York, lately- 
 enlisted or engaged themselves to serve as soldiers, or 
 have procured others to enlist or engage themselves to 
 serve as soldiers, and have within the State of Ne2v- 
 York, collected artillery, arms and ammunition, and made 
 other preparations for a hostile invasion of this Province, 
 under the pretext of assisting certain traitors who have fled 
 from this Province to the said United States: and whereccs^ 
 the said persons, without the authority of their Government, 
 and in defiance of its express injunctions, have actually 
 invaded this Province, contrary to the faith and obliga- 
 tion of the treaties subsisting between the United Kingdom 
 of Great Britain and Ireland and the said United States, 
 and during the continuance of the relations of amity and 
 peace between the two countries : and whereas, it is ne- 
 cessary for protecting the peace and security of this Pro- 
 vince, to provide for the prompt punishment of persons so 
 offending : Be it enacted, by the Queen's most Excellent 
 Majesty, by and with the advise and consent of the Legis- 
 lative Council and Assembly of the Province of Upper Ca- 
 nada, constituted and assembled by virtue of and under 
 the authority of an act passed in the Parliament of Great 
 Britain, entitled " An Act to repeal certain parts of an 
 act passed in the fourteenth year of His Majesty's reign, 
 entitled ' An Act for making more effectual provisions for 
 the Government of the Province of Quebec in North 
 America,' and to make further provision for the Govern- 
 ment of the said Province," and by the authority of the 
 
148 ACT 12th JAN. 
 
 same, That if any person, being a citizen or subject of 
 any Foreign State or Country at peace ivith the United 
 Kingdom of Great Britain and Ireland, having joined 
 himself before or after the 'passage of this Act, to any sub- 
 jects of our Sovereign Lady the Queen, Her Heirs or Suc- 
 cessors, loho are or hereafter may be traitorously in arms 
 against her Majesty, Her Heirs or Successors, shall after 
 the passing of this Act, be or co7itinue in arms against 
 Her Majesty, Her Heirs or Successors within this Pro- 
 vince, or commit any act of hostility therein, then it shall 
 and may be lawful for the Governor of this Province to 
 order the assembling of a Militia General Court Martial, 
 for the trial of such persons agreeably to the Militia Laws 
 of this Province, and upon being found guilty by such 
 Court Martial of offending against this Act, such persons 
 shall be sentenced by the said Court to suffer death, or such 
 other punishment as shall be awarded by the Court. 
 
 2. Be it fu7'ther enacted by the authority aforesaid. 
 That if any subject of Her Majesty, Her Heirs or Succes- 
 sors, shall within this Province, levy war against Her 
 Majesty, Her Heirs or Successors, in company with any 
 of the citizens or subjects of any Foreign State or Coun- 
 try, then being at peace with the United Kingdom of 
 Great Britain and Ireland, and offending against the pro- 
 visions of this Act, then such subject of Her Majesty, Her 
 Heirs or Successors, shall be liable to be tried and pun- 
 ished by a Militia General Court Martial in like manner 
 as any citizen or subject of a foreign state or country at 
 peace with Her Majesty, Her Heirs or Successors, is liable 
 under this Act to be tried and punished. 
 
 3. Be it farther eriacted by the authority aforesaid. 
 That the citizen or subject of any foreign state or coun- 
 try, offending against the provisions of this Act, shall be 
 deemed guilty of felony, and may, notwithstanding the 
 provisions hereinbefore contained, be prosecuted and tried 
 before any Court of Oyer and Terminer and General 
 Gaol Delivery in and for any District of this Province, in 
 the same manner as if the offence had been committed in 
 such District, and upon conviction shall suffer death as in 
 cases of felony. 
 
;militia J.AWS. 149 
 
 A?i Act to amend, and reduce into one Act, the Militia 
 Laios oj this Province. Passed March 6th, 1838. 
 
 Whereas, the several laws now in force for embodying, 
 organizing and training the Militia of this Province are, 
 in many instances, defective and ineffective : Be it there- 
 fore enacted, by the Queen's most Excellent Majesty, by 
 and with the advice and consent of the Legislative Coun- 
 cil and Assembly of the Province of Upper Canada, con- 
 stituted and assembled by virtue of and under the autho- 
 rity of an Act passed in Parliament of Great Britain, en- 
 titled " An Act to repeal certain parts of an Act passed 
 in the fourteenth year of His Majesty's reign, entitled 
 ' An Act for making more effectual provisions for the Go- 
 vernment of the Province- of Quebec in North America,' 
 and to make further provisions for the Government of the 
 said Province," and by the authority of the same, That 
 from and after the passing of this Act, it shall and may 
 be lawful for the Lieutenant Governor from time to time, 
 to divide the Militia of this Province into such number of 
 Regiments or Battalions as he may deem most conducive 
 to the efficiency of the said Militia, and under his hand 
 and seal to appoint a sufficient number of Colonels, Lieu- 
 tenant Colonels, Majors, Captains and other officers, to 
 train, discipline and command the said Militia, according 
 to such rules, orders and directions, as shall from time to 
 time be issued by him for that purpose ; which officers of 
 Militia shall rank with officers of Her Majesty's Forces 
 serving in this Province, as junior of their respective rank. 
 32. Be it further enacted by the authority aforesaid, 
 That when the Militia of this Province shall be called out 
 on actual service, in all cases where a General Court 
 Martial shall be required, the Lieutenant Governor, upon 
 application to him made through the officer commanding 
 the body of Militia to which the party accused may be- 
 long, or in case he be the accused, then through the next 
 senior officer, shall issue his order to assemble -a General 
 Court Martial, which said General Court Martial shall 
 consist of a President, who shall be a field officer, and not 
 less than eight other commissioned officers of the Militia : 
 Provided always, that in all trials by General Courts Mar- 
 13* 
 
150 MILITIA LAWS. 
 
 tial to be held by virtue of this Act, the Lieutenant Go- 
 vernor shall nominate and appoint the person who shall 
 act as Judge Advocate ; and that every member of the 
 said Court Martial, before any proceeding be had before 
 the Court, shall take the following oath before the Judge 
 Advocate, who is hereby authorized to administer the 
 same, viz : — " You, A. B., do swear, that you will ad- 
 minister justice to the best of your understanding, in the 
 matter now before you, according to the evidence and the 
 Militia laws now in force in this Province, without par- 
 tiality, favor or affection ; and you further swear, that you 
 will not divulge the sentence of the Court, until it shall 
 be approved by the Lieutenant Governor; neither will 
 A^ou upon anj^ account, at any time whatever, disclose or 
 discover the vote or opinion of any particular member of 
 the Court Martial, unless required to give evidence there- 
 of as a witness by a Court of Justice, in due course of 
 law : So help you God :" And so soon as the said oath 
 shall have been administered to the respective members, 
 the President of the Court is hereby authorized and re- 
 quired to administer to the Judge Advocate, or the person 
 officiating as such, an oath in the following words : — 
 " You, A. B. do swear, that you will not upon any ac- 
 count, at any lime whatsoever, disclose or discover the 
 vote or opinion of any particular member of the Court 
 Martial, unless required to give evidence thereof as a 
 witness by a Court of Justice, in due course of law — so 
 help you God :" And the Judge Advocate shall, and is 
 hereby authorized, to administer to every person giving 
 evidence before the said Court, the following oath : — 
 " The evidence you shall give to this Court Martial, on 
 the trial of A. B. shall be the truth, the whole truth, and 
 nothing but the truth — so held you God :" — Provided al- 
 ways, that the Judgment of every such Court Martial 
 shall pass with the concurrence of two-thirds of the mem- 
 bers, and shall not be put in execution until the Lieute- 
 nant Governor has approved thereof. 
 
MILITIA LAWS. 151 
 
 An extract of the Militia Laws of the Province of Upper 
 Canada, passed March 16, 180S, — arid in force until 
 the sixth duy of March, 1838. 
 
 Sec. 23. Be it further enacted by the authority 
 aforesaid, That when the Militia of this Province shall be 
 called out on actual service, in all cases where a General 
 Court Martial shall be required, the Governor, Lieutenant 
 Governor, or person administering the Government, upon 
 complaint and application to him made, through the Colo- 
 nel, or officer commanding the body of Militia to which 
 the party accused may belong, shall issue his orders to 
 the said commanding officer to assemble a General Court 
 Martial, which said Court Martial shall consist of a Pre- 
 sident, who shall be a field officer, a,nd tivelve other com' 
 missioned officers of the Militia : Provided always, that in 
 all trials by General Court Martial, to be held by virtue 
 of this Act, the Governor, Lieutenant Governor, or person 
 administering the Government, shall nominate and ap- 
 point the person who shall act as Judge Advocate — and 
 that every member of the said Court Martial, before any 
 proceedings be had before that Court, shall take the fol- 
 lowing oath before the said Judge Advocate, who is here- 
 by authorized to administer the same, viz : 
 
 " You, A. B. do swear that you will administer justice 
 to the best of your understanding, in the matter now before 
 you, according to the evidence, and Militia Laws now in 
 force in this Province, without partiality, favor or affec- 
 tion ; and you further swear, that you will not divulge the 
 sentence of the Court, until it shall be approved by the 
 Governor, or person administering the Government ; nei- 
 ther will you upon any account, at any time whatsoever, 
 disclose or discover the vote or opinion of any particular 
 member of the Court Martial, unless required to give evi- 
 dence thereof as a witness, by a Court of Justice, in the 
 due course of law — so help you God." 
 
 So soon as the said oath shall have been adminis- 
 tered to the respective members, the President of the 
 Court is hereby authorized and required to administer to 
 the Judge Advocate, or the person officiating as such, an 
 oath in the following words ; 
 
152 AFFIDAVIT. 
 
 " You, A. B. do swear that you will not, upon any ac- 
 count, at any time whatsoever, disclose or discover the 
 vote or opinion of any particular member of the Court 
 Martial, unless required to give evidence thereof as a wit- 
 ness, by a Court of Justice, in the due course of law — so 
 help you God." 
 
 The said Judge Advocate shall, and he is hereby 
 authorized to administer to every person giving evidence 
 before the said Court, the following oath : 
 
 " The evidence you shall give to this Court Martial, on 
 the trial of A. B. shall be the truth, the whole truth, and 
 nothing but the truth — so help you God." 
 
 Provided always, that the judgment of every such 
 Court Martial shall pass with the concurrence of two- 
 thirds of the members, and shall not be put in execution, 
 until the Governor, Lieutenant Governor, or person ad- 
 ministering the Government, has approved thereof: Pro- 
 vided always, that no officer serving in any of His Ma- 
 jesty'' s other forces, shall sit in any Court Martial upon 
 the trial of any officer or private man serving in the Mi' 
 litia. 
 
 AFFIDAVIT OF THE STATE SURVEYOR OF MICHIGAN ; 
 MADE DURING THE IMPRISONMENT OF GENERAL 
 SUTHERLAND IN UPPER CANADA. 
 
 State of Michigan, 
 
 Wayne County. 
 
 John Farmer, of the city of Detroit, in said county, 
 being duly sworn, doth depose and say — that on the 9th 
 day of March, 1838, he, this deponent received an order 
 from the Governor of this State requiring him, (this de- 
 ponent,) as surveyor, to take immediate measures to as- 
 certain whether the arrest of Thomas J. Sutherland, a 
 citizen of the United States, occurred within the jurisdic- 
 tion of said State. 
 
 This deponent further saith, that he was at said city of 
 Detroit on the 4th of March, 1838, the 'time he. Gen. 
 Sutherland, was arrested by the British authorities — that 
 he was therefore ignorant of the place of his arrest, and 
 
AFFIDAVIT. 
 
 153 
 
 consequently had to refer to others for information ; and 
 as it was reported " that Benjamin Chittenden and Da- 
 vid Thompson had stated that they saw Gen. Sutherland 
 at Gibralter, on the 4th of March last, the day of his ar- 
 rest ; that they also saw him with a person supposed to 
 be leave our shore on foot upon the ice, in a direc- 
 tion for Sandusky, and that some time after the departure 
 of him, Gen. Sutherland, they, Chittenden and Thomp- 
 son, started in a sleigh from Gibralter, on the ice for the 
 city of Brest, and that after passing Point Mouillee, and 
 about three or four hours, after the departure of Gen. Su- 
 therland, they, Chittenden and Thompson, saw them 
 about two and a half miles distant, and evidently on our 
 waters, overtaken and arrested by persons in sleighs ap- 
 parently direct from the Canada shore." Therefore, this 
 deponent sought for, but not being able at that time to 
 find Thompson, he called upon said Chittenden only, who 
 not only confirmed said report, but also stated to this de- 
 ponent that he presumed that he could find the tracks of 
 Gen. Sutherland on the ice, by tracing which this depo 
 nent might arrive at the place of his arrest ; this depo* 
 nent therefore employed said Chittenden, and also one E. 
 S. Lathrop to assist him, and having provided himself 
 with instruments for the purpose of determining accurate- 
 ly the situation of the place of arrest, providing its proxi- 
 mitj'- to the national boundary line should render its juris- 
 diction uncertain or doubtful; he, this deponent, with 
 said Chittenden and Lathrop, proceeded forthwith to Gi- 
 bralter, thence by the direction of Chittenden to a place 
 on the ice below Gibralter where said Chittendent pointed 
 out to this deponent the tracks of two persons leading to- 
 wards the Canada shore, which were then supposed to be 
 the tracks of Gen. Sutherland and ; they were pa- 
 rallel and about three or four feet apart — those made by 
 the person who had walked on the upper side were much 
 larger of the tv^^o, confirming what Chittenden had pre- 
 ously stated, to wit — that Gen. Sutherland was much the 
 larger man of the two, and walked on the upper side. 
 These tracks this deponent traced to their termination, as 
 he then supposed, a short distance from which, was a 
 sleigh track apparently fi'om Maiden ; but which this de- 
 
154 
 
 AFFIDAVIT. 
 
 ponent could not arrive at nor examine, on account of the 
 holes in, and the decomposition of the ice at this place, 
 which was exceedingly rotten and covered from six to ten 
 inches with water. This place, this deponent and also 
 Chittenden and Lathrop then concluded was the place of 
 Gen. Sutherland's arrest. It was, in the opinion of this 
 deponent, within one and a half miles of the Canada 
 shore, and in full view of Maiden ; the Queen's store 
 house at which place could be distinctly seen between the 
 main shore of Canada and Bois Blanc Island ; and the 
 light house on said Island bore north five degrees east. 
 [I was not at all at this place described. I walked down- 
 wards, near the shore of Michigan, until I was out of 
 sight of Bois Blanc Island.] This place then, supposed 
 to be the place of his arrest, was so evidently within the 
 jurisdiction of Canada, that this deponent, and also said 
 Chittenden and Lathrop, deemed an actual survey and 
 measurement entirely unnecessary. This deponent there- 
 fore drew up a report at the time, setting forth the result 
 of said examination as aforesaid, which was signed by 
 this deponent, and also by said Chittenden and Lathrop 
 and which he, this deponent, delivered to the Governor, 
 a copy of which this deponent, has not preserved, because 
 he then believed that that was the place of Gen. Suther- 
 land's arrest — and that it was so evidentl}'- within the 
 boundaries of Canada, that its jurisdiction would not and 
 could not be questioned. But as said Chittenden has, 
 since the making of said examination, and the said draw- 
 ing up and signing of said report, stated to this depo- 
 nent that he, Chittenden, upon more mature reflection 
 entertains strong doubts about those being the tracks 
 
 of General Sutherland and , which he pointed out to 
 
 this deponent at said examination ; and that if they were, 
 that he, the said Chittenden, is of the opinion that the 
 heavy thaw which succeeded their arrest, must have so 
 obliterated the tracks at the time, and especially at the 
 place of examination as to have prevented our perceiving 
 them farther, and consequently have prevented tracing 
 them to their ultimate termination, the place of their ar- 
 rest; assigning as a reason that Gen. Sutherland had 
 been travellino; quite rapidly for three or four hours on the 
 
AFFIDAVIT. 
 
 155 
 
 ice, when he was overtaken and arrested, and that conse- 
 quently he must have proceeded farther than four or five 
 miles at the time of their arrest ; and said Chittenden al- 
 leged as a further reason that he and said Thompson could 
 not have seen them from Point Mouillee when arrested if 
 they were arrested at the place of said examination. 
 
 This deponent would therefore, also, observe that if 
 those were the tracks of Gen. Sutherland, and if they 
 were beyond the place of said examination, that he, this 
 deponent is fully of the opinion, that the ice, at this 
 place and immediately beyond, in its vicinity, was so ex:- 
 tremely rotten and full of holes, as to have rendered it 
 very hazardous, if not impossible, to have pursued them 
 further, even if their tracks had continued visible; and 
 this deponent further observes, that the snow which had 
 been quite deep on the ice at the time of the arrest, was 
 at and beyond, in the immediate vicinity of said exami- 
 nation, so nearly exhausted by the thaw which succeeded 
 the arrest, and the ice at this place was so covered with 
 water, so open in spots and filled with air-holes, in a cer- 
 tain direction, that this deponent is of the opinion that 
 the tracks of Gen. Sutherland, would not have been legi- 
 ble farther, if they had continued on from this place in 
 the same direction, or if they had turned towards the 
 centre of the Lake, or towards a certain vessel lying in 
 sight of, and about five or six miles from this place, but 
 their tracks would have been legible if they had been 
 turned towards the American shore. It is therefore pos- 
 sible, (even if those were his tracks,) that this was not 
 the termination, or the place of the arrest, as they might 
 have turned at or in the vicinity of this place, towards 
 and in the direction of a vessel frozen in the ice, which 
 this deponent saw, and should think was about five or six 
 miles distant. If this was the vessel, (and this deponent 
 saw no other,) within half a mile of which it is reported 
 that Prince states he arrested Gen. Sutherland, and if he 
 was arrested within half a mile of this vessel, then this 
 deponent has no doubt he was arrested within the juris- 
 diction of the United States ; for this deponent is clearly 
 of opinion that this vessel lay at least a mile and a half, 
 if not more, westerly of the national boundary line. This 
 
156 AFFIDAVIT. 
 
 deponent would also further observe, that in his opinion 
 it would have been utterly impossible for said Chittenden 
 and Thompson, to have seen the arrest of Gen. Suther- 
 land, by the British, from Point Mouillee, if they were 
 arrested at the place of said examination aforesaid, and 
 further this deponent saith not. 
 
 JNO. FARMER, Sicrveyor, ^c. 
 Detroit, June 21, 1838. 
 
 Subscribed and sworn before me, 
 this 21st day of June, 1838. 
 
 D. E. Harbaugh, Justice of the Peace. 
 
 AFFIDAVIT OF BENJAMIN CHITTENDEN. 
 
 State of Michigan, ) 
 
 Wayne County. )^ ' 
 
 Benjamin Chittenden, of the city of Detroit, in said 
 county, being duly sworn, doth depose and sa}'-, that he 
 is personally acquainted with Gen. Th. J. Sutherland, a 
 prisoner in' Canada, and was so acquainted with him. 
 Gen. Sutherland, at the time and when he. Gen. Suther- 
 land, (in company with one ,) left Gibralter, in a di- 
 rection for Sandusky, which was about 12 o'clock on the 
 4th of March, 1838 ; and about an hour and a half after 
 their departure, he, this deponent -with one David Thomp- 
 son, left Gibralter in a sleigh for the city of Brest, lying 
 but seven miles below Swan Creek, and that after travel- 
 ling an hour, or an hour and a half from Gibralter, he, 
 this deponent, passed Gen. Sutherland on the ice, 7 or 
 8 miles below Gibralter, and after so passing them, he, 
 this deponent frequently stopped his horse and looked back, 
 and saw Gen. Sutherland ; and being Avell acquainted 
 with the course and distance from the mouth of the river 
 to Pele Island, he, this deponent, then observed to said 
 Thompson, that by the direction of Gen. Sutherland, he 
 could not be bound to Pele Island. This deponent further 
 says, that about four o'clock, P. M. of the same day, and 
 after passing Point Mouillee, he, this deponent, saw Gen. 
 Sutherland about two and half miles distant from said 
 
AFFIDAVIT. 157 
 
 deponent, and evidently on our own waters, and far from 
 the boundary line, he, this deponent saw Gen. Suther- 
 land stop and stand still, and at the same time, he, this 
 deponent, saw sleighs with persons therein drive up to, 
 and arrest Gen. Sutherland ; which sleighs, this deponent 
 had for some time seen approaching him ; and this de- 
 ponent further says, that he is certain that Gen. Suther- 
 land stopped some minutes before, and stood still until 
 the sleighs drove up, and the persons therein arrested 
 him ; and that he. Gen. Sutherland, did not run on the 
 approach of the sleighs, as is reported to have been stated 
 by Col. Prince, who arrested him. 
 
 This deponent further says, that he was called upon for 
 information relative to Gen. Sutherland's arrest, and at 
 request, accompanied John Farmer, the Surveyor, on the 
 10th of March, 1838, for the purpose of examining the 
 place of Gen. Sutherland's arrest, and that although he, 
 this deponent, signed a report, the result of said exami- 
 nation, as set forth in the affidavit of said Farmer ; yet 
 nevertheless, he, this deponent, upon mature reflection 
 and deliberation entertains strong doubts about those be- 
 ing the tracks of Gen. Sutherland, which he, this depo- 
 nent pointed out to said Farmer, which he and said Far- 
 mer traced, and upon which the report of said examina- 
 tion was founded, as set forth in the affidavit of said Far- 
 mer; because this deponent was below Point Mouillee 
 when he saw Gen. Sutherland arrested, from which place 
 this deponent is now confident he could not have seen 
 Gen. Sutherland when arrested, if arrested at the place 
 of examination on the 10th of March, as set forth in the 
 report of said examination, referred to in the affidavit of 
 said Farmer. 
 
 This deponent further says, that if those were the 
 tracks of Gen. Sutherland, which he pointed out to said 
 Farmer, at the time of the examination on the 10th of 
 March, that then, he, this deponent, is clearly of the opin- 
 ion that the thaw which had taken place subsequent to 
 the arrest, but previous to the examination, must have so 
 obliterated the impression of Gen. Sutherland's tracks at 
 and beyond the place of examination, as to have prevent- 
 ed the tracing of them to the place of arrest. This de- 
 
 14 
 
15S AFFIDAVIT. 
 
 ponent thinks the appearance of the sleigh tracks referred 
 to in the report, could not have been that of Prince's ; and 
 that if those were the tracks of Gen. Sutherland referred to 
 in the report of the examination, that, then, Gen. Suther- 
 land must have changed his direction at the place of exa- 
 mination, and proceeded towards a certain vessel which 
 was frozen in the ice, and the only one at the head of the 
 Lake — and which said deponent saw during the examina- 
 tion on the 10th of March, and which said deponent should 
 think, and knows, was jEive or six miles distant — and as 
 far as the eye could reach. If this was the vessel within 
 half a mile of which it is reported that Prince has stated 
 he arrested Gen. Sutherland, and being the only one 
 in that vicinity, then he must have been arrested on our 
 own waters, for this deponent thinks said vessel was not 
 less than tivo and a half^ or three miles westerly of and 
 from the boundary line. 
 
 BENJAMIN CHITTENDEN. 
 Subscribed and sworn before me, 
 this 22d day of June, 1S38. 
 
 J. W. HiDUG, Justice of the Peace. 
 
LETTER TO LORD BROUGHAM. 
 
 To THE Right Honorable Lord Brougham, a Peer of 
 
 the Realm of Great Britain. 
 
 My Lord — I am wholly unable to determine what 
 apology I ought to make for the liberty I have taken in 
 addressing your Lordship with this communication. In- 
 deed, I know not that I have any apology to give, save 
 the motive with which the communication is made ; and 
 upon this, alone, I have founded the hope that your Lord- 
 ship may be induced to take into consideration — and to 
 act upon the matters herein presented. 
 
 It is due to frankness, my Lord, as I think, that I should 
 state, before proceeding further with this my communi- 
 cation, that I was, myself, among the number of those 
 American citizens, who, in 1837 and 1838, took a part 
 with the inhabitants forming a revolutionary party in the 
 Canadas ; and that with the Revolutionists of those Pro- 
 vinces, in the capacity of a military officer, I assisted in 
 the effort which was then made to subvert the authority 
 established therein by Her Majesty's Government. My 
 reasons for having been concerned in those operations 
 will be found in what I am now about to offer in behalf 
 of a number of my fellow-citizens, who, like myself, were 
 concerned in those revolutionary movements of the Cana- 
 das ; and who, having been taken in arms by Her Ma- 
 jesty's military forces, have been transported to Van Die- 
 mans Land, one of the penal Colonies of Great Britain, 
 and there reduced to the condition of common felons ; as 
 well as in certain papers and publications which I shall 
 endeavor, herewith, to cause to be put into the hands of 
 your Lordship. 
 
 According to the information of which I am possessed, 
 the number of my unfortunate countrymen who were 
 captured during the late civil commotions in the Canadas 
 and who now remain in the hands of Her Majesty's Go- 
 vernment, must somewhat exceed one hundred. These 
 men, as it is represented on good authority, have been 
 placed in a convict station, with thieves, robbers, burg- 
 
160 LETTER TO LORD BROUGHAM. 
 
 lars and others of the vilest of the overflowings of the 
 prisons of the British Empire ; and that thus associated, 
 they are made to do penance in the same manner as those 
 who have been convicted of crimes embracing moral tur- 
 pitude. As they were taken in arms against Her Majes- 
 ty's Government, the right of that government to detain 
 them as prisoners, so long as Her Majesty shall please, is 
 not to be disputed ; but I contend, my Lord, that persons 
 taken under the circumstances that my countrymen -were 
 captured, cannot, in justice, be regarded as felons — and 
 that the reducing of them to the condition of such — and 
 the making them the companions of foot pads and house 
 breakers, is not only a violation of rules adopted and pur- 
 sued by the people of the most enlightened nations, but 
 that it is an uncalled for severity and a cruelty unnecessary 
 to the case ; and tending to defeat the very object for 
 which punishments are declared by the laws of the Bri- 
 tish nation. Her Majesty's Government may call them 
 'pirates and rohhers, and condemn them to the punishment 
 of felons, but those, my unfortunate fellow citizens can ne- 
 ver be made to regard themselves as such. They had 
 acted only from motives of giving a generous assistance to 
 what they believed was a struggle for liberty ; and while 
 they are loaded with chains and incarcerated in dungeons, 
 they will esteem themselves martyrs to the cause of free- 
 dom. I am, also, my Lord, from information, induced to 
 believe that those men have been condemned upon pro- 
 ceedings which would in no manner bear a legal scrutiny. 
 
 We had had it presented to us from the pages of the 
 history of our own country, that when the Canadas were 
 wrested from the French nation, they were rather con- 
 quests to the people of the American Colonies, (now the 
 United States,) than to the British Government ; and, 
 therefore, when we had reflected that it Avas our fore- 
 fathers who mainly contributed to make the Canadas 
 — what our territories were then — British Colonies, 
 we could not deem it wrong to give the people of those 
 colonies assistance in an attempt to make their country 
 what ours is now — Free and Independent States ! 
 
 We had lately beheld the whole American people vie- 
 ing with each other to do honor to the persons, and to 
 
LETTER TO LORD BROUGHAM. 161 
 
 glorify the names of those illustrious foreigners who 
 who came to this country and embarked with our forefa- 
 thers in their early and hazardous struggle for liberty and 
 independence ; and we had seen monuments to comme- 
 morate their services in the cause of our forefathers, put 
 up at the expense of our government ; which was to us 
 a prompting of a desire to earn the same honors for our- 
 selves. 
 
 However, my Lord, this was not enough to induce the 
 action of myself, or of any of my unfortunate fellow-citi- 
 zens. Nor were we moved to interfere with the political 
 affairs of the Canadas, until we had beheld a civil com- 
 motion begun and in full operation in those Provinces ; 
 and our services had been solicited by men on whom the 
 people of the Canadas had conferred the highest honors 
 within their gift. 
 
 Nor until we had beheld that the Government estab- 
 lished therein by Her Majesty, had failed to give security 
 to life and property, (the only legitimate purpose of Go- 
 vernment,) and that robbery, arson and murder was being 
 perpetrated in every section of the Provinces, with bold- 
 ness and impunity. 
 
 Nor until we had beheld large numbers of women and 
 children, who had been driven from their homes in the 
 Canadas, by the violence of the soldiery employed there- 
 in by Her Majesty's Government, thrown destitute upon 
 our borders, a:ppealing to our sympathies for the bread of 
 existence. 
 
 Nor until we had beheld a large foreign army landed 
 in the Canadas, and marched through their territories, 
 not to defend the people from the aggressions of foreign 
 enemies, but to subject them to political slavery. 
 
 Yet, when all these matters had passed before our eyes ; 
 and when we had listened to the tales of wrongs and 
 grievances which were related to us by all of the vast 
 number of people who had come among us from the 
 Canadas, and which we believed, because they were simi- 
 lar to those tales we had heard from our forefathers, who 
 had themselves been British Colonists ; and when we 
 had been made to believe that the people of the Canadas 
 were about to make a hearty struggle for liberty, we were 
 14* 
 
162 LETTER TO LORD BROUGHAM. 
 
 not even then prepared to embark in those movements, 
 so unfortunate to us all, (for I too, my Lord, have been a 
 prisoner in the hands of Her Majesty's Government for 
 man}' dreary months,) until public meetings of our citi- 
 zens had been held along the whole borders from Maine 
 to Michigan ; at which meetings clergymen, members of 
 congress and of the state legislatures, judges, justices of 
 the peace, lawyers, physicians, and others of the most re- 
 spectable of our citizens presided as officers ; and the 
 most eloquent of our countrymen were speakers — who in 
 their addresses, declared the struggle of the Canadians, 
 "not alone the cause of the people of tho^e Provinces — 
 but ours — of free government — and of all mankind. 
 The cause of true religion, and of .God I" and they bade 
 us " go to the aid of the Canadians ; to go by ones — by 
 twos — and by threes'';" and they proclaimed it ^^ to he a 
 cause glorious, even to fail iri ;" while our people put 
 their hands to- their pockets to furnish the means; and 
 having given arms' to numbers of the young and chival- 
 rous of our country, them they sent oft^ to fight in the 
 cause of political freedom. Therefore, if we were guilty 
 of wrong, it was equally the wrong of those who sent us ; 
 and if we have offended, it was no more our offence than 
 that of the whole American people. 
 
 But as it must be known to your Lordship, in this the 
 people of the United States did no more than has been 
 done by British subjects in almost every country on 
 the face of the earth, where there has been presented the 
 same state of political affairs which existed in the Cana- 
 das in 1837 and 1838. 
 
 All that we had proposed in aid of the people of the 
 Canadas we had seen given by British subjects in aid of 
 the people of all of the revolted colonies of Spain in 
 South America : By British subjects in aid of the people 
 of a revolted colony of Portugal, on the same continent. 
 
 All that we had offered in support of the revolutiona- 
 ry movements of Canada, we had seen given by the Bri- 
 tish subjects in aid of a revolution in Spain : By British 
 subjects in aid of a revolution in Portugal; and by Bri- 
 tish subjects in aid of a revolution in Circassia. 
 
 All that we had aimed to effect in the Canadas, we 
 
LETTER TO LORD BROUGHAM. 163 
 
 had seen effected by British subjects in carrying out a re- 
 volution in Greece : By British subjects in carrying out a 
 revolution in Portugal. 
 
 Then, if we may put confidence in the public accpunts 
 of the day, as often as any of the British subjects who 
 have been engaged in revolutionarj^ movements of other 
 countries have been captured b-y their adversaries, Her 
 Majesty's Government have sent commissioners to inter- 
 cede for them and to prevent their being subjected to 
 punishment ; and in many instances their liberation has 
 been demanded in the name of the power of the British 
 nation. 
 
 In view of all these matters, my Lord, it is an opinion 
 adopted by a large majority of the people of the United 
 States, that Her Majesty's Government have no justifica- 
 tion for the treatment bestowed upon our fellow citizens 
 now prisoners in their hands. Indeed, my Lord, we must 
 regard the course of the French people adopted on a re- 
 cent occasion as a rebuke to Her Majesty's government for 
 their conduct in this matter ; inasmuch, as that when 
 within a very recent date, an expedition having been fit- 
 ted out in London and embarked on board a British ves- 
 sel, sailed direct from thence for the coast of France, 
 where the expedition was landed and an attempt made 
 by it to effect a political revolution in that country; 
 and when the expedition had failed entirely, and every 
 person belonging to it was either killed or taken prisoner ; 
 yet not an individual who fell into the hands of the 
 French Government, of that expedition, as prisoners, was 
 condemned as a felon ; but each and every one of them 
 taken, has been detained as political prisoners. 
 
 It is difficult, my Lord, to suppose a government like 
 that of Her Majesty's, could entertain vindictive feelings 
 towards any individuals whom they have in custody as 
 prisoners ; and the more especially towards those who 
 are known to possess no political influence whatever ; and 
 who in the matters in which they have been implicated, 
 were but subordinates and of the rank and file. Then, 
 can it be for the honor, or in any manner accrue to the 
 benefit of the British nation longer to detain in the condi- 
 tion of common felons the American citizens whom Her 
 
164 LETTER TO LORD BROUGHAM. 
 
 Majesty's Government have sent to Van Diemans Land ? 
 If it can, I believe the world will be unable to discover 
 wherein. 
 
 All civil commotion in the Canadas is declared to be at 
 an end ; and it has been proclaimed by the Governor 
 General of those Provinces, that he no longer fears a re- 
 newal of the frontier disturbances ; and the military pow- 
 er of Her Majesty's Government is now so well establish- 
 ed in the Canadas, that it is not remaining with the 
 things possible that the people of those Provinces should 
 be found able, however much inclined, to make the first 
 step towards a change of their political institutions by an 
 appeal to arms, unless assisted by the Government of 
 some powerful nation, having the resources necessary to 
 organize and sustain large naval and military forces. 
 
 For a long series of years previous to the breaking out 
 of the civil commotions in the Canadas in 1837, there had 
 subsisted the most amicable relations between the citizens 
 of the United States and the people of those Provinces ; 
 and it is now not less for the interest of the people of 
 those Provinces, than that of the citizens of the United 
 States, that all causes for recollecting the part each may 
 have taken in those civil commotions, should be effaced. 
 
 It might be asked, my Lord, v/hy it is left for private 
 citizens to interfere for the release of our countrymen, 
 now prisoners in the hands of the British Government ; 
 and why their liberation has not been asked for by the 
 Government of the United States ? But, to this sup- 
 posed inquiry, I answer, that while our institutions and 
 laws leave the individual citizen free to go from the 
 country and unite himself in arms with any people to 
 whom his likes or interests may direct him ; and with them 
 carry on war against any other nation or people, they per- 
 emptorily prohibit those administering our Government 
 from recognizing such person as a citizen of the Republic, 
 or of interfering in their behalf, whenever they may be- 
 come prisoners in the hands of their adversaries. Con- 
 sequently, no application for the liberation of my unfor- 
 tunate countrymen can be expected to come from the 
 Government of the United States. It is only by private 
 citizens of this country, united with the benevolent of 
 
LETTER TO LORD BROUGHAM. 165 
 
 Great Britain, that any application may be made in their 
 behalf. 
 
 I would also suggest to your Lordship, that the further 
 detention of my unfortunate countrymen not only seems 
 to work a hardship and a wrong to the individuals, but 
 from the existence of their extensive family connexions, 
 which are scattered along our whole frontier; and the 
 deep sympathy which is felt for them by a great majority 
 of the American people, I believe I am correct when 
 I advise your Lordship that it is likely to engender a last- 
 ing and uncompromising hatred between the people on 
 the different sides of the frontier lines ; and to create with 
 the people within our borders, a spirit of retaliation, 
 which in case of a war between the United States and 
 Great Britain, would be the foundation for unnecessary 
 bloodshed and the exercise of the severest cruelties ; and 
 for a return to the usages of the savage people of a dark- 
 er age, under which hut few prisoners are taken — and no 
 courtesy or kindness afforded to any. Their sufferings 
 may, likewise, be made the capital, to be used by some 
 reckless aspirant for fame, for another volunteer military 
 movement in behalf of the liberties of the Canadas, though 
 such could only bring injury to the Government of both 
 countries, and misery and distress upon the people., 
 Therefore, for the avoiding of these matters, which all 
 must desire — and in behalf of the American citizens now 
 prisoners in the hands of Her Majesty's Government, I 
 request that your Lordship will be pleased to take an early 
 occasion to bring their case again to the consideration of 
 Her Majesty's Ministry, so that they may be liberated 
 and permitted to return to their country and friends : or 
 that they may be, at least, relieved from their present in- 
 tolerable condition. 
 
 With the highest consideration for your Lordship, 
 I am, my Lord, 
 
 Your Lordship's obedient and humble servant. 
 
 TH : J. SUTHERLAND. 
 
 New-York, January 1, 184L 
 
CAPTIVE PATRIOTS, 
 
 NOW IMPRISONED AT VAN DIEMANS LAND. 
 
 A LIST OF THE NAMES OF THE AMERICAN CITIZENS TAKEN AT 
 WINDMILL POINT, NEAR PRESCOT, IN UPPER CANADA. 
 
 From Jefferson County, N. Y. 
 
 RESIDENCE. 
 
 John Bradley, Watertown, 
 Orlin Blodget, Philadelphia, 
 Chauncey Bvigby, Lyme, 
 Geo. T. Brown, Le Ray, 
 Pvichard Bell, Antwerp, 
 
 Nelson Colton, Orleans, 
 Lysander Curtis, Lyme, 
 Robert G. Collins, " 
 John Cronkhite, Le Ray, 
 Moses A. Dutcher, Brownville, 
 Luther Darby, Watertown, 
 Aaron Dresser, Alexandria, 
 Leonard Delano, Watertown, 
 Elon Fellows, Dexter, 
 
 Emanuel Garrison, Brownville, 
 John Gilman, 
 
 William Gates, 
 
 David Allen, 
 John Berry, 
 Joseph Lee, 
 
 RESIDENCE. 
 
 Watertown, 
 Alexandria, 
 
 Lyme, 
 From Oswego County, N. Y. 
 
 Daniel D. Hustis, 
 Garret Hicks, 
 David House, " 
 
 James Inglish, Adams, 
 
 Andrew Deeper, Antwerp, 
 
 Joseph Lafort, Lyme, 
 
 Daniel Liscome, Charmont, 
 
 Andrew Moore, Adams, 
 
 Foster Martin, Antwerp, 
 
 Ira Polly, Lyme, 
 
 William Reynolds, Orleans, 
 Orin W. Smith, " 
 
 John G. Swanburgh, Alexandria, 
 
 Henry Shew, Philadelphia, 
 
 Thomas Stockton, Rutland, 
 
 Riley Whitney, Lyme. 
 
 Volney, 
 
 Oswego, 
 
 Palermo, 
 
 Jehiel H. Martin, 
 Alanson Owens, 
 Samuel Washburn, 
 
 Oswego, 
 Palermo, 
 Oswego. 
 
 From St. Lawrence Co. N. Y. 
 
 John Holmes, 
 John Monisette 
 John Thomas, 
 
 Madrid, 
 
 1 Edward A. Wilson, Ogdensburgh, 
 
 Salina, 
 
 OgdensburghJJacob Herald 
 Madrid, ' 
 
 From Onondaga County, N. Y. 
 Calvin Matthews, 
 Chauncey Matthews 
 Jacob Paddock, 
 Hiram Sharpe, 
 Nathan Whiting, 
 Jerry C. Griggs, 
 
 From Lewis Co. N. Y. 
 Stephen S. Wright, Denmark. 
 From Cayuga Co. N. Y. 
 Thomas Baker, Hannibal, [Patrick White, Auburn. 
 
 Benj. Woodbury, Auburn, | 
 
 From Herkimer Co. N. Y. I From Oneida Co. N. Y. 
 William Goodrich, Norway. [James Pierce, Marshall. 
 
 Philip Algire, 
 Hugh Calhoun, 
 Michael Fryer, 
 G. A. Goodrich, 
 Nelson G. Griggs, 
 Hiram Loop, 
 
 Fro7n Erie Co. N. Y. 
 Asa M. Richardson, Buffalo. 
 
 Clay, 
 Salina, 
 
 Liverpool, 
 
 Lysander, 
 Salina, 
 
 Liverpool, 
 Salina. 
 
CAPTIVE PATRIOTS. 
 
 167 
 
 From Warren Co. N. Y. | Residence not known. 
 
 Solomoa Reynolds, Queensbury.) Joseph Stewart. 
 
 A LIST OF THE NAMES OF THE AMERICAN CITIZENS TAKEN AT 
 OR NEAR WINDSOR, IN UPPER CANADA. 
 From Cuyahoga Co. Ohio. 
 James P. Williams, Cleveland, James Williams, Cleveland, 
 Samuel Snow, Stronsville, Charles Reed, " 
 
 Simeon Goodrich, Cleveland, Robert Whitney, " 
 
 Robert Marsh, " Oliver Crandall, " 
 
 David Day, " John L. Guttridge, " 
 
 From Wood Co. Ohio. 
 Mitchell Monroe, Toledo. 
 From Lorain Co. Ohio. 
 Allen B. Sweet, | John Sprague. 
 
 William Nottage, | 
 
 From Wayne Co. Michigan. 
 
 Daniel Anthony, Detroit. 
 
 From Washtenaw Co, Michigan. 
 
 Hiram Barnham, 
 
 John Simons, 
 Joseph Horton, 
 
 Ypsilanti, ] James D. Few, Ypsilanti. 
 
 From Erie Co. N. Y. 
 Buffalo, lEzra Horton, Buffalo. 
 
 From Madison Co. N. Y. 
 
 Eleazur Stevens, Lebanon. 
 
 From Niagara Co. N. Y. 
 
 John W. Simmons, Lockport, | Truman Woodbury, Lockport. 
 
 From Monroe Co. N. Y. 
 
 John C. Williams, Rochester. 
 
 Residence not known. 
 
 John W. Brown, 
 John B. Turrell, 
 Horace Cooley, 
 William Montague, 
 Samuel Hilkey, 
 
 Elijah Woodbury, 
 James Achason, 
 Joseph Stewart, 
 John S. Maybee, 
 Henry G. Barnum. 
 
 LIST OF THE NAMES OF THE AMERICAN CITIZENS TAKEN AT 
 
 SHORT HILLS, IN UPPER CANADA. 
 
 From Chautauque Co. N. Y. 
 
 Linus Wilson Miller. 
 
 Residence not known. 
 
 Erastus Warner, 
 Samuel Chandler, 
 Benjamin Waite, 
 Geo. B. Cooley, 
 
 Od" Of the American citizens captured in Lower Canada, no list 
 of names has been obtained. 
 
 Norman Mallory, 
 
 John Vernon, 
 
 James Van Waggoner. 
 
CONTENTS. 
 
 Page. 
 
 Advertisement, 3 
 
 Dedication, *,....» 5 
 
 Letter to the British Queen, 9 
 
 Letter to Lord Durham, 21 
 
 Letter to Sir George Arthur, 75 
 
 Letter to Lord Glenelg, 79 
 
 Appendix. 
 
 Members of the Court, 98 
 
 Preliminary Proceedings, 99 
 
 Report of the Testimony, 104 
 
 Act of the 12th of Jan 147 
 
 Militia Laws, 149 
 
 Affidavits, 152 
 
 Letter to Lord Durham, 159 
 
 Captive Patriots, 166 
 
^m^ 
 
 *??■