DEFENCE.

Mr. President, and
Gentlemen of this Honourable Court:

NO situation can certainly be more painful to the feelings of a soldier, than that in which I now stand before you. No case more entitled than mine, to the application of that humane principle of English justice too well known to require a repetition. Called upon to vindicate my character as an officer and a man, I must confess, that even a sense of conscious innocence is hardly sufficient to support

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me against the nature of the accusation. If such is the state of my own feelings, what must not be the impression upon the minds of those, who are yet unacquainted with the grounds of my defence? But I feel that in addressing you, I have no prejudices to combat, and in this consoling reflection, do I find a great source of relief. Your opinion will not be formed until you hear my side of the question. You will, I am confident, lend an impartial and an indulgent ear to every thing which I shall have to urge in my justification. I do not, however, intend to trespass on your attention more than is necessary. My anxiety to bring under your view every material circumstance, shall not lead me too far. A succinct statement of facts, will, with the help of a few observations, put you sufficiently in possession of my case; and when I shall have established, by proof, that which I am about to lay before you, I shall feel perfectly secure in trusting my long injured honour to your hands.

In speaking of such charges as these exhibited against me, which go to strip me of every claim to the character of a soldier, and which puts at issue every thing that is sacred to an officer; I feel it incumbent on me, to give an account of the whole of my conduct, and to state the facts, which, on any other occasion, I should not be justified in mentioning.

The engagement at River Raisin commenced

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early in the morning of the 22d of January, 1813. Two divisions, composed of about ninety men, were sent to the right; the one commanded by Captain Tallon, the other by myself. The remainder of the troops were stationed on the left; the whole under the command of Major General, then Colonel Proctor. The enemy were sheltered behind a paling of about four or five feet high; they advanced within a short distance of the paling, and finding it impossible to bring up the men to the charge, a brisk fire commenced on both sides; it was wholly unavailing on our part. Within about an hour after the beginning of the action, Captain Tallon, commanding the right, was wounded and retired to the rear. His recollection as to the time of receiving his wound does not happen to agree with mine, nor with that of others engaged on the same ground. After Captain Tallon had left the field, I found myself the only platoon officer on the right. I felt that a double duty had then devolved upon me: I shall leave it to others to state particularly the manner in which I discharged it. Let it suffice for me to say, that I redoubled my efforts to to[sic] encourage the men, as well by exhortation as by example.
About two hours and a half, or three hours, after the commencement of the attack, the force on the right having been reduced to about thirty men

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out of ninety, every attempt having become unavailing in consequence of the situation of the enemy, and a destructive fire being still kept up from behind the paling, we received orders to retreat to a ravine which was about three hundred yards on our right; this ravine ran towards the left, nearly parallel with the paling, and the ravine was like the ground in the rear, a level open plain. We left about twenty men dead on the field, besides some wounded. So far my conduct not only is beyond the very breath of calumny, but has deserved and received the approbation of all those who had an opportunity of witnessing it. Had the base disposition, imputed to me in the charges, ever existed, it must have shewn itself on that trying occasion, when the fire of the enemy was so destructive, when the men were falling in every direction around me. The same man is not one day brave and another day a coward; at one moment firm enough to stare, undisturbed, every danger in the face; at another base enough to cast away his honour, and shelter himself in disgrace. Two such extremes are never blended together in one composition, and can never be smoothened in to one character. Had such a base disposition existed in me, it must not have escaped the eye of my covering Serjeant, who, during the whole of the action on the right, stood immediately behind

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me; it could not have escaped the attention of the men who were fighting by my side, the attention of the wounded, who were lying on the ground immediately in my rear; least of all could it have escaped the attention of the Colonel, commanding, who never left the field, who came frequently to the right and spoke himself to the men under my command. They will appear before you: To their testimony do I trust for a correct account of my conduct, while the troops were engaged with the enemy on the right. Nor will the latter part of my conduct on that day, now so disfigured by the testimony before you, be found, when explained, less satisfactory than the former.

I have presumed to trouble the court with the above observations, because, from the evidence on the part of the prosecution, they must have conceived that I had no share whatsoever in the action.

Scarcely had we reached the ravine, when orders were given for the remains of the right wing, to take ground to the left. The troops in that quarter had already relinquished the attack, and sheltered themselves behind a barn and some outhouses, at the distance of about two hundred yards from that part of the ravine, to which we had retired. The object appears to have been, that we should move to the left, protected under cover of

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the ravine, in order to renew the attack; we were ordered accordingly to take ground in that direction. While moving thus to the left, Lieutenant M’Lean, acting Aid-de-Camp to Colonel Proctor, directed me to go to the rear where the wounded were, to collect as many as I could, and bring up, at the same time, some ammunition. Our reduced numbers required increase, and from the continued firing, the men had nearly emptied their pouches. I obeyed immediately, and notwithstanding Captain Tallon’s humane observation, with respect to the “bleeding and the disabled,” I collected some men - I cannot now say how many - I believe seven or eight, and sent them on to the left. I found also in the rear, a sled with a horse and an ammunition waggon, in charge of private John Nettles, then soldier in the 41st Regiment, now one of the settlers at William-Henry. It became a hazardous undertaking for me to bring up this sled. The field in the rear of the ravine was intersected with fences, that admitted of no passage for the sled - it was necesary[sic] to make one through each fence. Nothing was easier for me, than to have gone up myself, with the men I had collected in the rear; but my orders were to bring up ammunition, and I knew myself that the men were in want of it. I therefore from a sense of duty, proceeded with the above mentioned Nettles, to bring up the sled.

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From the many obstacles we had to encounter, it was with the utmost difficulty that we succeeded in coming up to the left. We never passed within more than fifty yards of the rear of the ravine; in approaching towards the left, we met Captain Mockler, much in the rear of the ravine - he passed us at the distance of at least twenty yards. - Such is the account of my journey to the rear.

Fortunately for me, I have it in my power, to shew that the testimony of Captain Mockler is altogether unfounded. I will not, however, pretend to say, that Captain Mockler has stated intentionally a fact which is not true. I will not say, that he has stated, intentionally, circumstances which were never connected with the fact as described by me, but I must say, in my own defence, that the impression which Captain Mockler entertained of that fact, shortly after its occurrence, was very different from the impression which he entertains now. It happened so long ago as January, 1813. I should be sorry to hint that lie has borrowed the eye of Captain Chambers to assist him in taking a retrospect, but some unfriendly mist, must surely have interposed, which spreads in larger dimensions, to his view, all the disadvantageous part of an object so remote, while it obscures altogether those of a more favourable complexion.

As soon as it had reached my ears at Amherstburg,

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that Captain Mockler allowed himself certain liberties with my character, I called upon him, accompanied by Doctor Faulkener of the 41st Regiment. The impression upon Captain Mockler’s mind, was very different then, from what it is now; at least he stated it so to be. He explained away the report that was in circulation. He said, that what he had mentioned, was in a moment of levity, adding, as stated in his testimony, that the whole had originated in a spirit of rivalship between the two corps - meaning the Newfoundland and the 41st. Here I have to express my sincere regret, that I have it not in my power to produce Doctor Faulkener before you. Captain Chambers having afterwards revived the above report, I made application to Major Friend, then my commanding officer, for the detention of Doctor Faulkener, who was immediately about to leave the Province; but my application was disregarded. Doctor Faulkener, however, previous to his departure, mentioned the whole of what had taken place, to Surgeon Moore, of the 41st Regiment, a witness summoned to attend this court on my behalf, and to whom I appeal for the correctness of my assertion.

Being thus deprived of the benefit of Doctor Faulkener’s testimony, so conclusive upon the first charge, as to have destroyed it altogether, what

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was I to have done? To have remained exposed to the shame of an interminable accusation, until the attendance of Doctor Faulkener could have been obtained, or to have come before a court of honour and of equity, not without a hope that superiour [sic] to legal quibble, it would take notice of what I now assert, and hear Surgeon Moore on the subject?

On or about the 27th of January, 1813, Captain Mockler, then commanding at Amherstburg, (for that is the fact,) appointed me his Fort Adjutant; in which situation I continued under him, for near a month. This appointment did not take place from the absence of any other officer, upon whom the situation could have been bestowed, for Lieutenants Hales and Gardner, of the Newfoundland, were then at Amherstburg. It is but little to the purpose, whether that situation was conferred upon me by himself, or whether he assented to the nomination. It is sufficient evidence for me, that Captain Mockler was of a very different opinion then, from what he is now; for it cannot be supposed, that as an officer and a gentleman, he would have allowed me to retain any situation of trust under him, if I had been capable of placing myself in an awkward situation in the field of battle; this observation carries with it the more weight, that the affair at the River Raisin had but just then

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taken place, and that his recollection must have been perfectly fresh at the time.

But we have only to hear Captain Mockler himself, to be convinced that it is impossible that I could have been found in such a situation. He says, that the right wing had retreated into the ravine and were ordered to go to the left, along the ravine ; that his detachment, on the left, had driven the Americans and was up under a barn. What must have been my object in getting behind a sled? No doubt my object must have been to seek a place of safety; but if the troops were in the ravine, I certainly must have found shelter there. On reaching the left, I must have found a shelter behind the barn, with Captain Mockler’s own men; a shelter in both instances rendered necessary, from circumstances pointed out by the commanding officer, and resorted to by all the troops: A shelter consequently without disgrace, more secure by far than the protection that could be afforded by a sled, such as described - thirty or forty yards in front of the ravine, in a level open plain, exposed to view on all sides, and not seen either by any one on the left, or by any of the wounded in the field! The thing is utterly impossible.

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I shall prove by the most satisfactory evidence, that had any such objects been in the front of the ravine, they must inevitably have been seen. No such objects were ever seen there; the conclusion, therefore is, that no such objects ever were there. Captain Mockler did indeed see me, as I have mentioned, in the rear of the ravine - it might have been about thirty or forty yards: But if Captain Mockler’s attention was so much attracted by other objects, or so confused by haste, that he mistook thirty yards in the rear, for thirty yards in the front of the ravine, he might as well have mistaken a knap-sack for a magazine; a man standing up, for a man “lying with his face towards the ground;” a horse trotting, for a horse standing quite still; the words, I have plenty of ammunition, for the words, I have no ammunition at all. Captain Mockler’s mistake may be easily accounted for. The fact is, that he was running to the rear to collect his men, and who can ever expect correct information from a running witness?

If Captain Mockler’s recollection had not been impaired from time, if he had had an opportunity of witnessing my conduct during the action, if he had heard the orders which I had received when in the ravine, if he had known with what zeal these orders had been executed, he never would have allowed himself (in a moment of levity, or from the

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rivalship of corps,) to trifle with the character of an officer, and I am confident that we should have never heard of this first charge.

I come now to the second charge, and will beg leave to make an observation equally applicable to the first as to the second. The crime laid in each, is, “misbehaviour in the presence of the enemy.” The specification as to both charges is, “concealing myself while the detachments with which I was serving, were engaged with the enemy.” Now, assuming for a moment, the evidence adduced in support of each, to be true, neither can be supported; for the concealment attempted to be proved under the first, must have taken place, when the troops on the right had been ordered to retreat, and cover themselves in the ravine; and when the troops on the left, had gone behind the barn and houses. - From that moment, they ceased to be engaged with the enemy; therefore no concealment took place, while the troops were engaged, and therefore the charge is without foundation. The same reasoning will hold, as to the second charge, for after the order had been given by Colonel Warburton, for every man to secure himself, an order extending as well to those who had come up, as to those who had not yet reached him. We did not fire one single shot at the enemy, but remained inactive under the bank, until the retreat,

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(about nine o’clock in the evening,) therefore the troops were not engaged, after that order was given; now the concealment attempted to be proved under this charge, did not take place until Captain Chambers had travelled three hundred yard, after the order had been given.

The evidence on the second charge, would have met the specification better, if the specification were thus, “concealing himself while the detachment with which he was serving, was itself concealed from the fire of the enemy, by order of the commanding officer, and while Captain Chambers himself, was also safely secured;” but I should be sorry, in a case of this description, to descend to any such ground of defence. Let Captain Chambers have all the benefit of his charges and his testimony; he had sought the opportunity too long, he had brooded too long over the materials of this prosecution, to be so easily deprived of the fruits of his labours. I beg leave not to be considered as making use of expressions that are too strong; the facts will bear me out in my assertions. Captain Chambers had caught at Amherstburg, the report proceeding from Captain Mockler - it did not appear at the time, to have made any impression upon him, for after that report had gotten into circulation, he continued to live with me, upon terms of friendship, and dined with me at the Mess,

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upon my invitation. Unfortunately for my repose, some difficulties occurred between him and Major Muir, of the 41st, a near relation of mine, respecting the affair at the Miami Rapids. Captain Chambers claimed a greater share of the success on that occasion, than the former seemed willing to allow. From that moment, have I felt the effects of his resentment. I should not trouble the court with the mention of such a circumstance, if it did not serve as a clue to the conduct of Captain Chamders [sic] ; he, from that moment, appeared determined to reach, through me, the feelings of Major Muir; from that moment, he fostered with a malignant care, the story of the dead horse. Nothing could be better calculated to create disgust, or excite prejudice; he in some measure, adopted this story as his own, he watched an opportunity of giving it a twin brother, alike in shape and form, and of an equally spurious origin, but somewhat of a deeper dye. The affair at Sandusky, even before its commencement, appeared to him to be that opportunity, for which he was so anxious. In conversing with some officers, shortly before the attack then in contemplation, he mentioned, that, “many of the officers of the 41st, would shake in their shoes,” and as for me, that I had already hidden behind a dead horse: This was sufficiently explicit. Coupling these expressions with his subsequent conduct, with this vindictive disposition, which, the respect due to

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this court, could not even prevent him from manifesting, it is evident, that he already feasted his imagination upon the pleasure of finding me deficient in duty - he had resolved it should be so - he spoke with oracular ambiguity, but his meaning was pretty plain. Once become a prophet, he was determined to accomplish his own prediction himself, by conjuring up facts, that were never in existence, except in his own imagination, and upon the record of this trial. He did indeed watch me, as it would appear from his evidence; he watched me with the eye of a Lynx; he watched me so as to entirely forget himself; there is hardly a fact that he has advanced, which cannot admit of contradiction. I will not tire the court by establishing a parallel between what he has stated, and what he ought to have stated; suffice it to say, that the truth is only to be found in the converse of his testimony, a testimony so destitute of even the common ingenuity of invention, that it can admit of but one general remark.

The facts which took place at Sandusky, in so far as I am concerned, are simply these: Four subdivisions of the 41st, the first commanded by Lieutenant Bullock, the second by Lieutenant Gardner, the third by myself and the fourth by Ensign Proctor - the whole under Colonel Warburton, marched from the left to the right angle of the Fort, at about four of the clock in the afternoon, on the second August,

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1813. Sometime after we had passed the left angle, a very heavy fire was opened upon us, from the Fort. The greater part of the first, third and fourth subdivisions and nearly the whole of the second, with the exception of a Serjeant and two or three men, broke and scattered into the bush. I used every effort in my power to rally them, I frequently pointed to the Fort and told them, that, that was their object, but all was in vain. I could collect but a few, and with these few, I used the greatest speed to reach the place where Colonel Warburton was. On arriving near the right angle, the fire became equally as heavy as we had experienced it before. A few shots were fired by our men on the right. Having arrived within about twelve or thirteen paces of Colonel Warburton, he gave orders for every man to secure himself, and went with those around him under shelter of the bank. I followed the example of the others and laid myself down, immediately below that part of the bank where I then was. Within a few minutes afterwards, I proceeded to where Colonel Warburton was, Captain Chambers arrived perhaps a few instants before me; he was sitting near Colonel Warburton, I placed myself near Captain Chambers, having him between Colonel Warburton and me. The witnesses who were there present, will state to you, that they came up with Colonel Warburton, that Chambers just arrived on

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the right, for the first time, a few minutes after we had gone under the bank; that had he come up with Colonel Warburton, they must have seen him; that they never heard him say a single word to Colonel Warburton, concerning Mr. Bender, and they might add further, that, had Captain Chambers said any thing, either on my arrival, or when he himself arrived; such was their proximity to Colonel Warburton, that they must have heard it. Yet we find Captain Chambers swearing positively, that he arrived on the right, together with Colonel Warburton, precisely at the same moment, before Colonel Warburton went under the bank; Captain Chambers most probably found himself retarded in the dexterity and agility of his movements, by the thorn in his foot and the ball in his thigh; yet if swearing could render him dexterous and agile, I venture to say, that he would have been there as soon as the best of them. Captain Chambers swears positively, that on his arrival after Colonel Warburton had secured himself, he reported to Colonel Warburton, that he had found me behind a log. I will shew that he never said any such thing, and that, had he said so, the persons present must have heard him. The thorn and the ball, will not account for this, he must account for it himself, he must account for two soldiers having been killed lying down, when they were in fact killed looking over the bank; he must account

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for having seen me creeping on my belly, when in fact I walked erect; he must account for having seen be jump from log to log, when in fact there were no logs at all; he must account for having found me behind a log, in a place, which he says, was out of the range of fire, and this by way of securing myself from that fire which could not reach me. How will he account for that vindictive spirit, by which he was so evidently actuated in giving his testimony? Is it a zeal for the service, that has prompted him to make use of the indelicate expressions, which he has mentioned. - His testimony in support of this charge, will, I fancy, when reflected upon in some cooler moment, and when compared with the testimony which I shall adduce, furnish him with a long chapter of accountability. He does not know for what purpose it was, that I went from behind the bank and under a heavy fire? I will tell him for what purpose, several of the persons who were present, will tell him for what purpose, they will tell him what he himself knows well - but what he, in his testimony, has remembered to forget, they will tell him, that after having seen two men fall near where we were, I volunteered my services to go and collect the men in the rear, and that too, upon a slight suggestion on the part of my commanding officer, who urged the danger I would be exposed to. I did not tell my commanding officer, that he might

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go himself if he liked, and that I would not get myself shot for him: But the best, the only way in fact, to account for all these glaring contradictions, is, that the measure is now full, that Captain Chambers in fact feels, that either his character or mine, must be sacrificed; he knows that if I am acquitted, he stands branded with the name of a calumniator; if he can crush me, my complaints will be drowned forever in the disgrace of a condemnation. Hence the struggle to convict me, a struggle in which he has shewn himself in his true colours before you. Let but a rapid glance be taken at his testimony, and the degree of credit due to it, even from his own statement, will at once appear. As Deputy Assistant Quarter Master General, he led the right wing, composed of no more than about one hundred and fifty men; an entire subdivision is unaccounted for by him. Why? Because, had he acknowledged to have seen it, he must also have acknowledged to have seen me rallying my men - he saw me and my subdivision on the left; what became of the subdivision after? The Deputy Assistant Quarter Master General knows it not - he went entirely to the right, before he perceived they were missing. A Deputy Assistant Quarter Master General losing sight of a whole subdivision on such a small force, exhibits himself in the same ridiculous point of view, as

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that of a General advertising for his lost army.

I shall forbear making any further observations, I beg leave merely to add, that I will furnish satisfactory proof of my conduct before the enemy, both before and since the periods mentioned in the charges. I fear that I have already trespassed too much on the time of the court. I most humbly thank them for the attention and indulgence with which they have honoured me. I have laboured for a long time, under the present accusation. So long ago as May, 1814. Captain Chambers after having traduced my character at the Mess, gave in a written statement to my commanding officer, which statement has been moulded into the charges now before you; he previously had been officially called upon to prefer charges against me, and he refused; he has been called upon at Quebec, to prefer charges against me, and he has refused. He did not, however, loose [sic] any time, he was active in exciting prejudices against me; but fortunately for me no prejudices can gain admission here. On receiving a copy of the statement given by Captain Chambers, I was notified that I could no longer be admitted a member of the Mess. From that period, have I been considered as outcast in my regiment; deprived of the fellowship of my brother officers, I have frequently sought for an investigation into my conduct, but I have sought for it in vain. The day of justice and retribution is, how-

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ever, at length arrived; I have hailed with joy its approach, and I shall feel forever grateful to His Excellency Lieutenant General Sir Gordon Drummond, for having granted it to my earnest solicitations. I have not been able to meet it, it is true, with the same advantages that I could have done before; the chances of war and other circumstances, have deprived me of very material and necessary witnesses; but, I trust, that I have laid sufficient before you, to establish my innocence.

B.Bender
Lieutenant 41st Regiment.