that resistance was made on board the boat, whereas it has been shown that there was no resistance. If the witnesses swore so, knowing that they were swearing falsely, that will of course detract from their credibility. But Wells himself testifies that he overheard the sounds of fighting, and that in the darkness of the night and in the confusion of the mêlée, they all taking a part, had mistaken each other for the occupants of the boat, and that they fought together. If that were true, then it would follow, that in testifying as to resistance encountered on board the boat, they were not false in the corrupt sense of the term. Passing from this, there is this other consideration, which must strike you in the outset. If, when Alexander M'Leod sued out this commission, and directed the commissioners to examine persons who had been in each of the boats, and if in truth he had been present there himself, he must be a bold man indeed. Because he must have supposed, that the commissioners would either have taken only those who could not see in the dark, whether he was there or no, or that the men would have been so corrupt as to swear falsely, to extricate him from the punishment of his crime. But this is no further evidence than as it is a portion of the history of the transaction; and with these views you are to take up the testimony, and ascertain, after solemn inquiry, how much credit you should give these witnesses. It is undoubtedly true, gentlemen, that Sears cannot say, with any degree of certainty, that M'Leod was not on board the expedition. It is equally true, that M'Nab cannot say so, although he superintended the embarkation of

the persons engaged in the enterprise. None but the All-seeing eye could penetrate the darkness that shrouded those there associated, But then there are one or two gentlemen from among the inmates of each particular boat who have been examined. Some of them knew M'Leod well before that time; others became acquainted with him afterwards; some talked with and recognized all their associates, and they all testified that M'Leod was not amongst them on that night. Now, gentlemen, it is proper that you should apply the rule distinguishing between positive and negative testimony. It is true, that where one man swears he did see another at any particular spot and period, it is more satisfactory than when he can only say, that the other was not there. But you will take into consideration the reasons which would lead you to believe that the crews of each of the boats must have well known each other, and so pass a correct opinion as to their credibility, when they say positively that M'Leod was not amongst them. With this remark, I leave in your hands this portion of the prisoner's defence. We come now to the proof of an alibi, which, if sustained, can leave no doubt of the prisoner's innocence, unless yon can believe him gifted with ubiquity. The first witness to prove this is William Press. He swears that he conveyed the prisoner and another person to Niagara, on the day of the destruction of the Caroline. That he knows it to be that day, from the fact of having made an entry of the transaction in his cash-book under that date. That he conveyed the prisoner in the evening as far as Stamford, on the way back to Chippewa. That

there prisoner alighted from the waggon, and went to the house of Captain John Morrison. William Stickney was called and corroborated the evidence of Press, and both, I may add, corroborate the statement of Hamilton respecting Rayncocks having left for Europe before the commencement of the troubles in Canada. The family of Captain Morrison and himself swear positively as to M'Leod's being there on the night of the 29th December. Capt. Morrison states, that he is enabled to fix the day from the circumstances that his friend Colonel Cameron called at his gate early next morning and informed him of the destruction of the Caroline, and gave him a fragment of the ruins which he had found in an eddy below the Falls; that he told this to M'Leod, whom he found half dressed in the parlour, where he had slept during the night; that M'Leod was electrified, and calling for his horse, purposed to leave immediately, but finally remained for breakfast: after which he went on his way. Then comes the witness Gilkinsun-that he met M'Leod on the day after the destruction of the Caroline on the road from Stamford; that they rode up together to opposite Navy Island, from which they were fired on; that one of the balls was picked up and handed to M'Leod, who carried it with him; and Sears, you will recollect, states that on this day he saw M'Leod and another person riding along that way, and that they were fired on from Navy Island. The testimony is also corroborated by that of Mr. M'Lean. This is the aggregate of the testimony, gentlemen, on the part of the defence. The evidence of the Morrisons, and the declarations of

M'Leod on his examination, have been submitted to you, and criticised by the Attorney-General with great ability. If he has satisfied you that the Morrisons may have been mistaken as to dates, and in particular in reference to this great epoch, and that the other witnesses confronting them may have also been mistaken, then your confidence in this portion of the testimony vanishes. But if you decide on just grounds otherwise, then it should, I think, be deemed satisfactory in establishing the innocence of the prisoner. [Mr. Spencer here requested the Court to charge the jury that the deposition of Colonel Cameron corroborated essentially the statement of Capt. Morrison, which his Honour did, and proceeded.] But, gentlemen, if, even after all, though the prisoner may, in your opinion, have failed completely in proving an alibi, yet if he have raised sufficient doubt as to his guilt, he is to have the full benefit of that doubt. The law never divides between the living and the dead-never consigns an individual to the tomb without an overwhelming amount of evidence to prove the guilt of the accused. In this spirit you are now to consider the evidence which I have briefly reviewed before you. And now, gentlemen, my task is performed. Your duty remains to be done. And it is one of the most solemn trusts that can ever be reposed in a citizen. You are to take the case into your deliberate consideration; you are to weigh and decide on every part and portion of it; you are to call into exercise your best powers of judgment, regardless of rumours which may have reached your ears—regardless of every consideration except that of the guiding principle

of justice and impartiality. And when you shall have come to your decision, and declared where the truth lies, then, with an independence that will honour you, and with the noble integrity that your country expects you to exhibit, you will pronounce your verdict. And then I trust that all who have witnessed the trial-the ability with which it has been conducted, and your patience in attending to it-will be satisfied. If the evidence will lead you to say that he is guilty, then, although

On

When the jurors returned with their verdict, there were very few persons remaining in Court, and there was no exhibition of feeling from any quarter, except with the prisoner's counsel, who apparently felt relieved from the great responsibility under which they had been placed, and satisfaction with the result of their labours.

PRIVY COUNCIL'

JUDICIAL COMMITTEE.

OTHERS.

The jury then retired in the charge of an officer, and after being absent about thirty minutes, returned into court, having agreed upon their verdict.

Mr. Root, the Clerk of the Court, having called over their names, inquired, "Gentlemen of the Jury, have you agreed upon your verdict?"

Mr. Thurber (the Foreman.)We have.

Mr. Root.-How say you-do you find Alexander M'Leod, the prisoner at the bar, guilty or not guilty?

Mr. Thurber." Not guilty." Mr. Root recorded the verdict, and then said, "Gentlemen of the Jury, hearken to your verdict as the Court hath recorded it; you say that he is not guilty, and so you say all.

The jurors nodded assent.

This very important case, the circumstances of which had occupied much of the public attention, and had been repeatedly before the Courts in various shapes, was at length brought to a conclusion by the decision of the House of Lords upon appeal. The question thus decided affected only the personal property of the testator-the case as to the realty, which was not of large amount, is said to have been ultimately compromised, by the payment of a sum of money to the heirs at law.

Judicial Committee of the Privy Council, Monday, August 16.

Their Lordships before whom this appeal was heard assembled at three o'clock at the Council-office, Whitehall, to deliver their judg ment. Besides Lord Lyndhurst, the Master of the Rolls, the ViceChancellor, Mr. Baron Parke, and Sir Joseph Littledale, Lord Brougham, Mr. Labouchere, and other Privy Councillors, were present.

The Attorney-General, Sir F. Pollock, Mr. Pemberton, Dr. Phillimore, and other counsel in the cause, were in attendance.

Lord Lyndhurst read the judgment, as follows:-This is an appeal from a judgment of the Prerogative Court of Canterbury, pronouncing against the validity of a certain paper writing, dated the 2nd of December, 1834, and propounded with another paper writing, as together containing the will of James Wood; and also against the validity of a codicil propounded by the legatees, dated July, 1835. The testator, James Wood, was a man far advanced in life, being about eighty years of age at the time of his death. He had for many years been engaged in trade in the city of Glocester, as a mercer and banker, and had, by great attention to business, by his careful and parsimonious habits and by bequests from certain of his relations, accumulated a very large estate, amounting to several hundred thousand pounds. The extent of the property in controversy, the obscurity of some of the circumstances, and the extraordinary and mysterious nature of others, have given to this proceeding much interest; and have led to very full and able arguments at the bar, which have been attentively listened to and considered by the Court, and with the more anxiety and care on account of the high character of the very able and learned judge whose decision we have been called upon to review. All the material facts, however, have been so fully stated in the elaborate judgment delivered by that learned judge, that we feel ourselves relieved from the necessity of entering into any minute detail of them, or to occupy any considerable portion of time in stating the grounds of the opinion we have formed. The question, indeed, stripped of extraneous matter, resolves itself into a very

And, first, it

limited compass. should be observed, that there is no dispute as to the competency of the testator; although very far advanced in age, his faculties' were entire, and his attention to business unimpaired. There is no question raised as to the exercise of any undue influence, which would indeed have been inconsistent with the known character of the testator.

The points in controversy relate both to the will and the codicil. The question as to the will is confined to the construction of the papers dated respectively the 2nd and 3rd of December, denoted by the letters A and B, and to the circumstances connected with those instruments. We have felt it our duty through the whole of these proceedings anxiously to guard against being unduly influenced in our judgment by the misconduct of some of the parties interested in and connected with this case, imitating in this the caution and circumspection of the learned judge in the court below Adopting then his view, we shall consider the case with reference to the papers A and B, as it would have existed at the death of the testator if A had not been improperly removed and annexed to B, but had remained in the possession of Chadborn; with this reserve, however, that nothing is under the circumstances of this case to be presumed in favour of the appellants. Pursuing this course, then, it will, we think, be convenient and proper first to consider the paper B. That paper is attested by three witnesses, the execution of it is proved, and there is no doubt of its being the act of James Wood, the testator. This paper, however, is inoperative by itself, the property being given to execu

tors, and they are not named in the instrument. We are not to suppose this omission to have been by mistake or accident. The business was not transacted in a hurry. Chadborn, by whom the will was drawn, was a lawyer of experience; the testator must have known that the executors were not named in the paper. He read it over twice in the presence of the witnesses before he signed it. He was a man of business, and even of some experience in the making of wills. The omission must have been observed. The necessary inference therefore is, that in bequeathing the property to his executors, he must have meant executors already named, or thereafter to be named in some other instrument. The first appears the natural construction; the second forced and very improbable. If he considered he had appointed his executors, it was natural to mention them as he had done generally, his executors. If he referred to a future appointment, it would have been almost of course to describe them as executors hereafter to be appointed, or to have used words to that effect. Again, the testator must, we think, when he executed paper B, have meant to make an effective disposition of his property. Why should he have made his will bequeathing his property to his executors, and doing nothing more, if he had not fixed upon the persons who were to be his executors? It was doing nothing; it was altogether an idle act, and wholly inoperative for any purpose he can be supposed to have had in contemplation. But if he had fixed upon them, he would naturally have named them, unless he had already done so in some other instrument to which he was

then referring. It was obvious, too, he considered he was doing an act that was to have some effect. He was anxious for Chadborn to come to finish the business. After he had twice read the will over he asked in the presence of the witnesses whether he could alter it? Why put that question if he did not consider it to be a complete will-if he knew it to be inoperative until something further were done to make it effectual? It is also to be observed that there is no trace or suggestion of any subsequent appointment of executors; and yet in the codicil, made a few months afterwards (the handwriting of which we think is fully established and which we are hereafter to consider), the testator again speaks of his executors as persons already appointed. He says, "I wish my executors would give such and such sums, &c. ;" and after stating the legacies, he proceeds thus-"and I confirm all other bequests, and give the rest of my property to the executors for their own interest." It may indeed be said that there might have been an intermediate appointment of executors, and that this may have been purloined or destroyed. But such an appointment, to be effectual, in this case of real as well as personal property, must have been attested by three witnesses; and if any such instrument had been executed in this interval, it is scarcely possible to suppose there would have been no knowledge, or even trace of it. All this tends to the conclusion, that the testator had already named his executors in some instrument, and that he referred to that instrument and to the executors so named when he executed the paper B. The existence and production of