Mr. President, and Gentlemen of the Court Martial,

I have the satisfaction to find, that what I stated to you on my Defence has been fully substantiated on evidence, so far at least, as the Court have thought it proper for me to proceed to proof in support of my assertions. I regret that I have been under the necessity of trespassing so long on your attention, but the nature of the proof to be produced and the anxiety natural to me in my sit-

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uation, will, I flatter myself, operate as a sufficient excuse.

Before I proceed to offer any observations on the evidence now before you, I beg leave to be indulged with the remark, that that evidence deserves more or less weight, is entitled to more or less credit, from the character and motives of the witnesses on either side. - The witnesses on the part of the prosecution, can by no means be considered as impartial. I do not mean to include Captain Tallon, even if his evidence stood uncontradicted, it must hinge entirely on that of the first witness. It cannot, however, be considered to corroborate it, as it does not go to the same fact: on the contrary it places me with the wounded in the rear, at the same period that Captain Mockler said that he saw me in front of the ravine. - Captain Mockler and Captain Chambers, have no doubt an interest in my conviction. - The former feels it necessary for his character, to be consistent with himself, and to maintain now before the Court, in the shape of a charge, a report which originated with himself, in the manner he mentioned. - As for the latter, he is only a witness in name, he is in fact a prosecutor in disguise. - It must, I think, be apparent to the Court, that such is the case; had it not been considered irrelevant to the case, I could very easily have proved it.

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The witnesses whom I have called upon, can be liable to no objection. It is unnecessary to observe that the rank of some of them, is a pledge of their impartiality; of the others, one is a Serjeant in another Regiment, and two of them are discharged Soldiers, who are consequently beyond my controul [sic]; the remainder of them are Serjeants and Soldiers of the 41st Regiment, and there could certainly be nothing to induce them, to give evidence on my behalf. - I have no influence to exercise in their favour, they must have felt the contrary, that, in appearing as witnesses for me, they exposed themselves to the enmity of Captain Chambers. - These observations will not be found groundless, when the nature of the evidence is taken into consideration.

With respect to the first charge, the sum and substance of Captain Mockler’s testimony is, that when the troops had fallen back to the ravine, he saw me behind a horse and sled, such as he has described, at the distance of about thirty or forty yards in front of the ravine, and about seventy or eighty yards from the piqueting of the enemy. - That after having put a question to me about being wounded, he asked me if I had any ammunition, to which I answered in the negative; that he told me to go to my men, that I went accordingly, and that he saw no more of me until he saw

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me on the left, about half an hour afterwards. - Throughout the whole of his examination and cross-examination, he is positive in establishing two circumstances of much importance as to this charge; first, the place where the sled was, in front of the ravine; secondly, the time at which he says that he saw me there. - The men, says he, had just retired before he saw me, meaning that they had retired to the ravine. Before they had retired, they had been immediately on my right, and had fallen back to the ravine. He adds, that the men were immediately ordered to go to the left along the ravine. Captain Mockler was not aware that orders had been given to retreat; he therefore went to the ravine for the purpose of collecting the men and found some of them there. All these circumstances so well recollected, so minutely and so positively stated by Captain Mockler, form a necessary part of the fact attempted to be established against me, and rest altogether upon his evidence.

By the proof which I have adduced, I have not only shewn[sic] the impossibility of such a fact ever having existed under such circumstances, but I have accounted satisfactorily for my conduct from the commencement to the conclusion of the action, and I have done so, not by one witness, but by nine witnesses.
I have shewn[sic] the impossibility of such a fact ev-

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er having existed. First, by the testimony of Major General Proctor, by that of his Aid-de-Camp Mr. M’Lean, by that of Serjeant Dukes, by that of Corporal Dennis, who precisely at the time so particularly mentioned by Captain Mockler, when the men had retired to the ravine and were taking ground to the left, passed nearly over the same spot, who must all of them have seen a horse and sled had there been one, not only thirty or forty yards, but any where in front of the ravine, and yet they did not see it. Secondly, by the testimony of Serjeant Stagnell, one of the wounded, who remained on the field from some time before the retreat, to the very end of the action, who must have seen a horse and sled in the ravine, yet he did not see it. Thirdly, by the evidence of Lieutenant M’Lean who was with me in the ravine, from the very first moment of the retreat, who gave me orders to proceed to the rear, and this too, when the men were taking ground to the left, precisely at the time, when the fact sworn to by Captain Mockler, could alone have happened, and according to his statement, did happen. Thus must I have been at one and the same time, in the ravine and thirty or forty yards in front of it. - And it cannot be here said that this is a mistake as to time, which may be immaterial; No, there is no calculation of time in Captain Mockler’s testi-

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mony, he states the occurrences of one fact, namely, the retreat to the ravine and the movement to the right, and mentions, that that fact had just then occurred, when he found me in the situation he has described. This impossibility becomes the more glaring, when it is considered that the whole distance from the position occupied on the right, to that subsequently occupied on the left, was no more, according to Mr. M’Lean’s testimony, than four or five hundred yards, a distance easily to be taken in, by the eye of any common observer, especially when the nature of the ground was that of an open plain, upon which, such an object as a horse and sled, must have appeared conspicuously to the view, and would have attracted the notice more as, according to the observation of Major General Proctor, it must have been matter of surprise, what could have brought it there: Not only there was no sled in front of the ravine, but it has been even impossible to discover in the rear, nay in the whole field, any other than that in charge of Nettles. But it becomes the less necessary for me to dwell longer upon this impossibility, as I very satisfactorily account for my conduct, by proving a fact directly to the contrary; this I do by the testimony of Lieutenant M’Lean, who was with me in the ravine, as I have already mentioned, from the very first moment of the retreat,

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who as Aid-de-Camp gave me orders to proceed to the rear for men and ammunition, and who saw me proceed to the rear in consequence of his orders.

I follow up the chain of evidence by shewing[sic] that men did come up from the rear. Will it be contended tat there is not sufficient proof, that it was I, who sent them? But the opinion of Mr. M’Lean is in my favour. There is also a strong presumption in my favour, because, as he observes, there was no other officer in the rear, besides me. Is it to be supposed that the men who had broken before the charge, and had gone, of their own accord to the rear, would of their own accord, have returned to that field which they had but just abandoned? But I have proof positive that I executed with diligence, and if I may be allowed to say, with zeal, the order with respect to the ammunition: That ammunition was brought up after the movement to the left, is certain from the evidence of Major General Proctor, Lieutenant M’Lean and Serjeant Thomas White; that it was brought up by me, should be strongly presumed in the absence of positive proof, because I received orders to that effect - because it was brought up after that order, and because it is not shewn[sic], that a similar order was given to any other person. But that it was brought up by me, is equally certain from the

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evidence of John Nettles, from that of Serjeant Dukes, from that of Lieutenant M’Lean, and from that of Corporal Dennis; - The time too at which it was brought up by me, may be clearly ascertained by Captain Mockler himself, who saw me on the left for the second time, he says, and it must have been at that time only, that he saw me distinctly; by Dukes who states about the same period; by Corporal Dennis who states having seen me somewhat later. Differences as to calculations of time, will of course always occur, between persons desirous of speaking the truth, but forming different opinions as to its duration, either from the different occupations in which they have been employed, or the different sensations, whether of pleasure or pain, which they may have experienced. If Nettles does not happen to agree with others as to time, no inference can therefore be drawn from that circumstance against his testimony; we find besides, that in many other respects, it is corroborated by that of other witnesses, by that of Dukes who saw me take down the fence, by that of Lieutenant M’Lean, and by that of Corporal Dennis; and even if it stood uncorroborated, what he says, carries with it intrinsic evidence of truth. Does it appear from him that I had a disposition to shelter myself? No, quite the reverse; - though exposed to the fire of the ene-

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my when taking down the fence and going to the left, I went in front of the sled; had I ever been disposed to shelter myself, I then perhaps might have done so with impunity. To expose myself to danger was not then necessary, either to encourage the men or for the attainment of any object, yet I did not even then do so, I used every diligence. Nettles says, that I appeared to be in search of him, when I first met him, and even if I did not ask him about the ammunition, must I not have taken it for granted, that he had ammunition as well as Noonan, who in going to the rear says, he saw me with a sled of ammunition. I have therefore proved in the most conclusive manner, to this Court, that from the moment of my departure for the rear, after Mr. M’Lean’s orders, until the moment of my arrival on the left, I could not have been in front of the ravine; - that so far from being there, I was then in the discharge of my duty in the rear, a duty which exposed me to the very heavy fire from the enemy, while the whole of the troops were secure behind the barns on the left.

With respect to the whole of my conduct during the action before the retreat to the ravine, I have only to refer generally, to the testimony of the Major General and his Aid-de-Camp, and to that of all the other witnesses, who have been

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heard as to this charge. - I must, however, state the fact of my never having left my division during the action. My covering Serjeant states, it positively to be the case, and who must have perceived it sooner, had I done so? He adds, that we moved up three or four times by grand divisions, and this serves immediately to explain what was observed by Corporal Dennis, the left hand man of the right division, that whenever my division came up, I always came up with it. But laying aside for a moment, the strong testimony that I have adduced, as to my conduct in the rear, after leaving the ravine, can it be made reconcilable with reason, that being in the ravine and having a better opportunity than Captain Mockler, of knowing from the Aid-de-Camp, that the object of the movement, was to take shelter behind those very barns, I should have been so devoid of common sense as to go thirty or forty paces in the front, in search of a horse and sled, if any thing could have brought it there, and this too in the face of day and in the presence of those, who he himself acknowledges, were yet passing the ravine, who must inevitably have seen me; but of whom not one is produced to corroborate his testimony. - Supposing a total absence of proof on my part, from the period of the retreat, would my conduct during the action on the right, go for nothing; would it make

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no impression whatsoever in favour of my innocence? If a man’s character, when once put to the test, on a trying occasion, did not shield him from an attack upon some unguarded moment of his life, for which he could not rigourously account before a Court of Justice, no one could ever consider himself safe, without a witness at his side. Can it for a moment be imagined, that at a time when all danger had nearly ceased, I would expose a character, which, but an instant before, had been seasoned by a probation of nearly three hours in action, during which so many casualties had occurred? But, fortunately for me, I stand upon a different footing; fortunately for me, during the whole of the action, there is not a single chasm to be found in my conduct, not a single moment that is not accounted for. I am supported against the first charge, by positive and circumstantial evidence, which has completely disproved the crime whereof I have been accused; nor am I less fortunate with respect to the attack on Sandusky.

I have been placed by Captain Mockler in a situation where any one must have seen me, if I had ever been there; but Captain Chambers takes care to place me in a situation where no one can see me, no one can hear me, but himself - two hundred yards, not directly to the rear, but inclining to the rear, to the left. Did he observe any other officers

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under cover of the ravine and the log? No! Were there any men near me, when he saw me behind the log? No! neither officer, nor man was near me; the scene was therefore very adroitly chosen - the manager of the plot, displayed a great deal of ingenuity in the selection - he was determined that I should act the part of misbehaving in the presence of the enemy, not in the presence of the enemy of country, but in the presence of my own enemy; therefore it was, that I must misbehave before him, in a place where no person must see me but he, himself, a place which had also the advantage of being completely out of the range of fire, and still, however, a log must be introduced for the purposes of safety, and of ridicule. Before I happened to be transported to this secluded spot, by the spell of Captain Chamber’s enchantment, it was a piece of good fortune that I should have been seen by some one - it was fortunate for me, that when the troops broke, I did not escape the notice of Ensign Proctor, of my covering Serjeant, or Colour Serjeant White and of Serjeant Stagnell; that was no time for misbehaviour or concealment, there, at a moment when the fire of the enemy was overpowering, when the men had broken and were abandoning the attack, before they came up to it, I did every thing in my power to rally them and lead them on to the Fort. Where was Cap-

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tain Chambers then? If his zeal had been such as he has endeavoured to shew[sic], it would no doubt have been better employed in preventing the men from dispersing, than in volunteering to collect them, after they had dispersed, as he states; but the fact is, that Captain Chambers hardly knew they had dispersed at all; he was, he says, at a proper place, at the head of the wing as Acting Deputy Quarter Master General, yet, when asked if the second subdivision scattered into the bush, he does not know. My efforts not proving to be as successful as I wished, I was at least determined to go on myself. I did go on. I outran my covering Serjeant. I would have reached the right angle with Colonel Warburton, had I not been delayed by my efforts to encourage the men. I followed not far from the first subdivision, composed of the grenadiers, with which Colonel Warburton was. I was then about twenty paces in front of Serjeant Dukes; towards the Fort. I cannot state the distance correctly. Colonel Warburton was not more than twelve or fifteen paces to my right. I heard the word pass from Colonel Warburton for every man to secure himself, and I secured myself under the bank as the others did. This is no doubt the log of Captain Chambers, with the assistance of about one hundred and fifty, or one hundred and sixty yards, to make up the two hundred. Serjeant

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Dukes states, that when he had secured himself, he still saw me on the bank. This place afforded certainly as much shelter as any other part of the ravine. Where then was the necessity of going two hundred yards in the rear? But Captain Chambers says at one time, that the ravine afforded shelter, at another time, that it did not; his answers are very evasive as to this part of the subject; he felt that his story must hang together; he swears that there were two men killed lying down; one of my witnesses swears that they were killed standing up. It is at, or near this place, no doubt, that I was seen by Lieutenant Fitzgerald. There may be a little variance as to a few paces here and there, but it is impossible to expect under such circumstances, when the mind is otherwise occupied, that any person could take an exact admeasurement of distance. Where was Captain Chambers at the time? If we are to take his word for it, he was with Colonel Warburton, on his first arrival at the right. Colour Serjeant White and Serjeant Stagnell swear positively, that he was not. Serjeant White must have seen him, had he been with Colonel Warburton, for Serjeant White followed up close to Colonel Warburton, he always had him in view since the troops broke, and must have seen Captain Chambers, had the latter come up with Colonel Warburton to the right

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angle of the Fort, and he did not see him. Serjeant Stagnell who was within a yard or two of Colonel Warburton, must have seen him also, and did not see him; their testimony is corroborated by Ensign Proctor, who fixes the moment when Captain Chambers did first arrive. But Captain Chambers has himself furnished us with evidence, that he could not have come up so soon as Colonel Warburton, “he was disabled in both legs,” and certainly those legs which to his great regret, could not perform a certain operation, mentioned by him on his examination, were still less capable of bringing him up with speed, to the right.

When was it then, that Captain Chambers did come up? He came up for the first time, say the three witnesses, a few minutes after Colonel Warburton was under the bank. I arrived some short time, almost immediately, after Captain Chambers. Colonel Warburton was then under the bank, and we were situated relatively to him, as follows: Ensign Proctor lay close at his feet, Serjeants Andrew White and Stagnell were one or two yards from Colonel Warburton, and Captain Chambers was within two or three feet of him, and I was within about the same distance of Captain Chambers. Here it is, that contradictions begin to thicken upon Captain Chambers; he swears that having waited some time with Colonel Warburton in

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the ravine, expecting the men to come up, he proposed to Colonel Warburton, to go back to look for them. One of my witnesses swears, that he must have heard Captain Chambers, if he had made such a proposal, but that he never did hear him say any such thing.

Captain Chambers swears that he did go to the rear. It appears from the testimony of the other witnesses, that he did not go to the rear, while I was with Colonel Warburton, from the first moment they saw him arrive. Captain Chambers has sworn, that when he came with me to Colonel Warburton, that he had found me hidden behind a log, and that he told him so in his usual tone of voice. The three witnesses swear that they must have heard him, if he had made such a report, and that he did not say any such thing, neither at the time he came up, nor at the time I came up, nor at any other time. I had not been near half an hour under the bank, as I have already had the honour of stating, when having heard Colonel Warburton observe, that if a sortie were to be made by the enemy, we should be in a bad situation, as we were without men. I offered my services to go and collect them in the rear. Colonel Warburton observed, that there was some danger of being shot. - I went notwithstanding. - The witnesses

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heard this. Captain Chambers was within hearing, as well as the others; he has sworn that he knew nothing about my volunteering.

Whenever the enemy perceived an object above the bank, they never failed to fire at it. The moment I became visible to them, they opened a heavy fire upon me: This Captain Chambers could not deny without contradicting what he had before saw, - he was anxious, however, to destroy any effect it might produce on the mind of the Court: Yes, says Captain Chambers, he was exposed, but took great care to shelter himself, by leaping from log to log and creeping on his belly. Two witnesses have sworn they saw no logs in the place where I passed, and that they did not see me creep on my belly. It will not escape the attention of the Court, that it was over the same ground, which I took in leaving the bank, that Captain Chambers passed in retreating, together with the others who were there; and that, although it was night at the time of their departure, it was found necessary to wait until the moon had obscured itself behind a cloud, in order that darkness might save them from such a fire, as that to which I had been exposed in broad day light.

Well indeed does it become Captain Chambers to make use of such expressions; he who would not stir from behind that very bank, when called

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upon by me, on the part of General Proctor: We even find him lowering his loud tone of voice, to a soft whisper, least he should be even overheard by the enemy. What inconsistency does he not exhibit upon this occasion? According to his own account of himself, upon his first arrival on the right angle of the Fort, he volunteered his services to go and collect the men in the rear. - Returned from his expedition to the rear, in which he has made me so conspicuous, he remains under the bank, and while there, receives through me, receives through Mr. M’Lean, an order to bring the men to the General. But his ardour has disappeared, he is no longer the same man, doing violence to his disabled legs - he will not stir; he had just seen what happened to me; his answer was that General Proctor might come and bring away the men himself - that it was impossible to bring them through the ravine. Why impossible? Because he found himself secure under the bank, a place which he would not leave, even to obey the orders of his Commanding Officer.

Such a tissue of contradiction, never, I believe, came under the eye of a Court of Justice; contradictions so glaring, as at once to dispose of the second charge. If in every essential circumstance which Captain Chambers has stated, he has been directly and positively contradicted by the testi-

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mony of three witnesses, it is impossible, according to every principle of evidence, that he can be entitled to the least credit as to any other part of his testimony. My conduct at the time the troops broke, my speedy arrival at the place where Colonel Warburton was, my conduct in going to the rear, to collect the men, would be alone sufficient to disprove this charge. No one will now be surprised to find, that with such an unjust and ill founded accusation, hanging over me, ever since May, 1814, I should have made such efforts to obtain a trial, and that Captain Chambers should have made such efforts to resist it. I cannot refrain from again expressing my gratitude to His Excellency Sir Gordon Drummond, for having afforded me an opportunity of establishing my innocence; that innocence I now place under your protection.