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Un des symboles suivants apparaitra sur la derniAre image da cheque microfiche, selon le cas: le symbols ^»> signifie "A SUIVRE", le symbols y signifie "FIN ". Meps, pletes, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent Atre filmAs A des taux da rAduction diffArents. Lorsque le document est trop grand pour Atre rAproduit en un seul clichA, il est filmA A partir de Tangle supArieur gauche, de gauche A droite, et de haut en bas, an prenant le nombre d'images nAcessaira. Les diagrammes suivants illustrent la mAthoda. 1 2 3 32X 1 2 3 4 5 6 6 ( I- n 01 THE WESTERN LAW TIMES. Vol. II. JUNE, 1891. Xo. 3. Recorder Adam Thorn. Ill oxir foruRT skotuli of the life of this very iil)lt' iiiai), so iiisopariihly coiineotod with tlio cai-ly iiistory of tliis country, wo expressed a desire to ol)tiiiu ids porti'ait. We liave, we are very ghid to say. l)eeii aide at last to dife Khzal)etli, daugliter of the Rev. 'I'homas Hisset, 1). D.St. And., nnnister of Logiei'ait, Pertlishire, by a daugliter of tiie Rev. Thomas Tullideph, 1). 1)., I'rincipal of the United Colleges of St. Salvailor and .St. Leonards, St. Andiews, 17.'i!J- 1777, Moderator of tins Kirk of Sotland in 174'J, and one of His Majesty's eliaplains 17<>1-1777. He married, first, a daugliter of the Rev. (ieorge Bisset, A. M., Udiiy, xVberdeenshire, and .sistei' of the late Rev. .laiiies Hisset, 1). D., minister of Hourtie, Al erdeeiishire, and .Moderator of tlie Kirk of Scotland in ISd'J, by v.hoiii he had no issue; ami, second, in lS3i), Miss Aniie lilachfonl, by wlioiii (who died '2;^rd of .January, iS7(i) he had two children- -I'rances, .vlio ilicil in infaiii;y, and Adam ISisset 'I'lioni, born 'Jiid of August, 1S4.S, at Lower Fort (Jai'iy, Man., and imw living at \ver Canada in 1S,'{7. 'I'lie celelirated re]>oi't of tin; Karl of Durham, on the state f)f iJritish Xortli America, was ilrawn up hy Mr. Cliailes Ihiller, witli the assistance of .Mr. Tliom ; in fact aeeording to the /.(iir Tims of Mareii l.st, IHOO, .Mr. 'I'liom was considered to Ix' the jliit'f author of tlie leport. Under tiie (;o»i (Ic jihiini- of " Caniillus," he \4rote the meinoialile " Anti-< Jallie Letters,'' addresseil to the Karl of (iosford, (iovoriior-in-( 'hief of the (Janatlas. Some few years after the estahlisiiment of the ''(iovernor an • ]>er annum. In addition to the Keeordership, he was the legal adviser to the <out a year justice was administered by Major Caldwell, the (iovernor of Assinihoia. A very complicated ease of great importance— ^'os" '■. /V//// having arisen, Mr. Thom again resuiiu'il liis otKce for the purposes of tlu' trial. The (iovernor, h(»we\-er, disagreeing with .Mr. Thom on his finding, prol)ai)ly because lie wiuld not lind as tlu ( l)Veriior wanted, iniuagvid eithtu' to s(!eure his per- manent removal or to force him to resitiii. He tiien, till liSr)4 — al)out four years- acted as the clerk of the court over which lie had formerly presided, and with the same .salary. In the beginning of September of that year, he left Red lliver with his wife and scjii and returned to Scotland, sailing from WESTKKX LAW TIMKS. I'Cl! till ..(Is tk'llt I(m1 I ICO \i}vk Factory on tlu! IStli of Octolmr l)y H. B. .sliiit I'l-iim o/' Walts.* In I.S>")(i lie rcccivi'il the lionoi'iiry ilogrce of LL. I), from liis oM univefsity. His liusy lift' did not pcuxciit his retaining an intefust in his former literary career, or from pursuing his studies, foi- in 1S4S he iiul)li.shi'il a work entitled The (Jhrimoloijy of l'r()i>h<'cy. It will not lie out of plai'c to make a fi'W ex- tracts from contemporary writers and travellers in regard to liim. Majr)!' ,|. Wesley liondt who visited i-{ed Kiver, speaks of him as "a very leading man," who was " vei-y active, energetic, and ])ossessed iif, ])\>. •J'_'+. S llmlsdii Hay, pp. (>,'{. WKSTEKN I.AW T1MK«. Hc'.ch tr) Hiiy, that liislife will liear fa\'oriihl( niparisoii witii iiiiy juilj^c wlui luiH succfi'ded liiiii. -IVis/irii L iif Tiiins, May, l)SiM). (^JlA) •>- 111 tlio uiiitur of 1882, wl'.ile staying' in Linidoii, which thu suhjoct nf this sketch usoil facetiously to call " the wen of tiie world," the writer very often jjY^ met a rc'tired old ^entleinaii freijuently known as " Judge 'Plioin," w ho hud •' more tlian 40 years liefore made iiis enti'ce to lied River Settlinnent as first Recorder of Rupert's Land. At the tinie of meeting in I.ondon, the Judge had entered upon his eight ietii yeii Ht tall, tliougl 1 wa Ikii 'g ,itli a sliglit stoo|), was of commanding jiiesence. He was what people usually call a man of marked individuality. His opinions were all formed ; he had views on any matter that cain^ up for discussion ; and was very fond of a talk with a passing friend. In conversation witli tlie old gentleman, it would lie at once noticed that he had a large fuml of infoiiiiation, and to any visitor fi'oni Maiiitolia it was surprising to see how the lajise of IH) years' absence from tiie country had not eifaced a line from memory in regard to the atl'airs of all the families of that time resident in Red River. In fact, .Judge Tliom had a marvellous mind for details. Some would no doulit have called him lo(|uacious, hut to most he was a very interesting man. Dr. Thom's Ai)er- doniaii accent had not been greatly softened liy liis coloni.il residence, nor lij- his siil)sc(|ucnt sojourn in Loinlon. In sjieech and ideas the Judge was a strong man, and it will lie oui' jjleasing duty tiiis evi^ning to have the outlines of his somewhat eventful life, which ended a little more than two months ago. Adam 'riioni was horn in Rrechin, Forfarsiiire, on the .'^Ist August, 1802, and liad the rememlirance to the last of having .seen, in his third year, the great lejoicing that took place after Nelson's great victory at t\w battle of Trafalgar, October "ilst, ISO."). In the year 181J(, young Thom entered King's r'ollege, Aberdeen, where he was a successftil student, and graduateil in 1824 witii the degree of Master of Arts. It was in the second year of his course at .\berd';en that he met with one who, far away on tiie ))hiin9 of Rupert's Land, was to be his intimate friend and comjianion, whom indeed he was to call his "alter ego." 'I'liis was John McCallum, of wliom we shall speak niori! fully, and who it will be rememliered founded the school, which bi'canu! in time St. .John's College in this city. Scotland was then, as now, sending uf) its young men to the gri;at metropolis, wiiicli contains more Scotc^iimeii than l'^dinl)urgli ; and in 182.") both 'riioin and his fellow-student .Mc(!allum found themselves earning tlieir bread there as classical masters in schools at Woolwich and Hlackheath r(!Hpectively. About this time, a great outflow of the liritish jicojtle wa.^- taking |)lac(! to the Xew World. In the year 18?,1 , upwards of .S(>,(IO0 jieople left the i'liitisli l.'dcs for Canada. Over ju'essuri' of population and jiolitical iliscon- tent W(!re no doubt tin' chief factors in this great emigration. In the follow- ing year, a popular iiiovciiient to Canacla was headed in the south of Kngland by Lord Kgremont, and three sliips rarrieil the Sussex colony to tlie St. Law WEHTEUX t.WV TIMKS. 5 |)liUU! the hcoii- llow- llaiid -aw reiicc. 'I'o tliu eiitt:i']ii'isiiig niiiul nf young Tliom tlie npitiitimities said to ln' iiH'orded l)y Caiiiida wei'e ii great attiactioii, uiul so taking the last sliip of tlic 8eason (1S3'2), tiie " Kosalind," from London, aftei' a lougli passage, the ves- sel even cunning aground at Anticosti in tlie St. f^awi'enee, the young atlven- turer reaeiied Montrtal. Carried away hy the Now Worhl fever in the foi- h)wiugyear, liis fi'iend, McCalhnn also accepted the task, under tlie pati'on- age of tile Rev. David .Fones, tiie Tlud.son Hay Chaplain at ]ni|)letion of his engagement with Lord Durham, the new judgeship then decided on ; and, accordingly, tiie first Recordei' of Rupert's Lfind, oi' he is also called the President of the Red River Court, left England, came by way of New York, and reached Fort (iai'ry in the spring of 1839. Sir (leorge Simj)son was credited with great shrewdness in making the appointments for the Hudson Ray Company. It is evident fi'om the very considerable .salary -tT'K^t sterling a year -paid the new judge at a time wiion incomes were ridiculously low on Red River, as well as from the unanimous o])ini( ns of Ross, Ibshop Mountain, Rev. John Ryerson, and dames Hargrave, the historian of the Hudson Hay WEMTEKN LAW TIMKS. ('<»m|)(iiiy. that Ailaiii Tlioiii wiih u iimii of fU'cidt'tl iiltility, iipriglit rliiiiiictor iiiiil vt'i'y exti'iiniv»Mt'iicliiig. .t would seem to ono now tliiit a liiwyer wlio had practised longer at tiie liai', and who had not heen so ])i'<>noiinoed aH a ])ulilii'ist in My Chief Factor Charles, now known as Rishop's Court, the seat of the Metro])olitan of Rupert's Land. .Fudge Thom refers with peculiar pleasure to the changes which had made him " (h)or neighl>or " to his old friend McCallum, " with nothing hut a ])addock l)etween." Tiie school was now at its heiglit for there were in it more than fifty paying pu[)ils, including girls. From it came A. K. Ishister, one of the most distinguished men horn 8 WKHTKKX I, AW TI.MKS. ill Hii|i('i-t's l^jiiid, mill to till' ■' Mc'Ciilhini mcIkioI" iiii'IiiIh'Is nf f|i(> older' geneiiitioii of Kfil Kivi;r HfltlciM look Itack with toiitl iillcrtioii. Sail inilt'i'il wiiH it for etliiriitiiiii iiml rcli^^ion mi Koit KivtT tliiit Mr, McCiilliiiii ilicii in IS4*). .Iiiil^t' 'I'lioiii lit^i'iiinr tiis ext'i'iitor, iiiiil liiMJiop AihIcihoii, tliu firHt liisliop of liiipcrtN Liiml, airivt'il jii.st in tiiiii' to iicifoini tlic fuiicnil sci'vieeH of the uoitliy ti'iiciiLT. On Mr. Mcl-'iilluin's duiitli, tln' mi liool ininiediately licgan to deciini-. r«i.slio|) Anderson was so Imsy with the other' duties of liiH otiii'e, that the institution was sutl'e'i'ed to languish. In IS.'>.~), a re-organi/ation was iitteinpted, a iiundier of the leading people of tlu^ eountry were formed into a eollege lioai'd, the name of St. dolin's ( 'ollege was eliosen, and the eoal of aims, with the heautiful motto, " In Tiiy I,,iglit shall we see Light,'" adopted. In three or four years, the want of success compelled the elosing of tiie col- lege. Ill IHd.") tlu' |)iesent l'>isho]i of Rupert's Laud arrived at Red River. The McCallum school liuildings had lieeoine a ruin. On his leaving on his tirst journey in his diocese, the hishop gave orders that they should la^ jiulled down. This was par'tially done, l>ut tin; eeiiti'al huilding was thought gj>od enough to lie preser'ved. It was aceoi'dingly spai'ed, ami those wlio have come to Manitolta even in recent years may rememlier' the house occupied Ity the Rev. Samuel l*ritcliar ill tliat Ixxly woulil siilijci't him III si'vcrc criticism liy the pcnplc, uml that to a certiiiii extent hi.-i intlueiice us a .luilge woiiM lie limt. Ah already stateil, tlie rehitioiis of tile sfttlerH on tile KimI Kivi'f to tlie Hiiilsoii hay ('oiiipiiny hail lu'coiiie scry iii..sati«facti>ry. Tlu' Company, liy tlu^ir charter, no doiilil liail a IM' iio|ioly of the fur ti'adc. lint tiie mass of the people lieiiig liiintei'H, anil timling it ilitlieult to >;ain a livinji; otherwiHe, iianlly reeogni/eil tliiH ami imleed tlu^ ('oni|»aiiy iiad not enforced tlieii' claim. Kor some reason, aeeord- ing to some, on ihidge 'riioin'H advice it was decided to enforce tlie right of Company. Aciordingly, in 1S44, (iovernoi' Ciiristi*- issued two |»roclani- atioiis, one of them rei|iiii'ing eacii settler, liefore tlie ('ompany would carry any goods for him, to make a declaration that for the past winter lie had not, directly or indirectly, engaged in the fur trade ; the other |)idclaniation reipiired the writer of uiiy letter, which was si-nt hy post to write his name on tile outside, and siiould lit; not iiave made tiie declaration required as to trading in furs, then lii.s letter must he deposited in the oHice, open, to l)e examined hefore heiiig scat. Tiiose were tyrannical and severe enactments. C.ises are cited in which .settlers, traders, and even missionaries, were caused much inconvenience and loss liy these stringent regulations. The governor and the legal ailviser, .ludge Tlioin, naturally received the greater part of |iopular disap|>roval. The Kreiieh half-l. reeds took the lead in the agitation against the Company. A strange story is related as to tiie way in wliicii the Knglish half-hreeds who had hitherto sujiported the ohiini of the Company, came to throw in their lot witii their French fellow-eountrymen. A com- pany officer had left his two daughters at Kort Carry to he educated. One of them was the object of the allection of a young Scotch half-iireed, and at the same time of a young Higlilaiider. 'i'lie young lady i.s said to iiave preferred the Metis, hut the fond jiarent favored tiie young Higiilander. Tiie Scotch- man, fortified hy tlie father's approval, proceeded to upbraid tiie Metis for his temerity in asjiiring to the hand of one so liigli in society as the lady. As love ruined Troy, so it is said this attair joined French and Knglish half- breeds in a union to defeat tiie Conii>any. During tlie five years after the pulilication of the proclamation, a con- stant agitation was going on among the F'rench. The leader of this ujiroar bore a name better known to tlie present generation as tliat of his son, Louis Kiel. Riel, the elder, was born at Isle a la Crosse, and was the son of u French Canadian fatlier and a French half-breed mother. He was educated in Lower Canada, came to the Northwest to enter the service of the Com- pany, and was for two yeai's a novice in the Oblate order. He afterwards built a water mill on the Seine, three or four miles from St. Boniface, made a canal nine miles long to feed it, and was married to one of the well-kni.wn Lagimodiere family, and from this union sprang Louis Riel of rebellion noto- riety. The miller of the Seine was a very capable man ; had a great power over his fellow-countrymen; and was a liorn agitator. Wlien popular feeling had been thoroughly roused, it iiiippened that in 184!> (iuillaume Sayer, a French half-breed trader, bougiit goods, intending to go on a trading exjiedition to Lake Manitoba. It was determined to arrest Sayer and three of his associates. This was done, Init Sayer alone was kept in [irisoii. 10 WKMTEKX LAW TIMKS. As tlie (lay of the trial ilrew near, tiie oxi-iteint-nt grew intense (iover- nor Coldwell was known to ]>v ohstinate. Judge 'I'hoi;:. it was reinumliered, had written the famous " Anti-(!allic letter" in Montreal ; he was, moreover, said to he the director of tiie policy of n.-striction, an' es/ lihri- " drowned by the shouts of tiie Metis, the trial was over, and Sayer and iiis fellow prisoners betook themselves to freedom, wiiile the departing Metis cried out : " Li- romiwirc I'xt liliri' ! le commirrc en/ lihrc ! i'Ivk It lihn." Tiiis crisis v.is a serious one. Judge 'i'liom, at tiie suggestion of Sir' (Jeorge Simpson, did not take liis place on the bench for a year, though he still iield liis position and liis emoluments. it was the end of the attempt of the Company to enforce its distasteful monopoly. The constitution of the Court at F(»rt(Jarrv made it quite possible for tlie Recorder to absent himself, and for the (loveriior and associated niagis- tiates to carry on the business. About a year after tiie Sayei' atl'air, a very complicated case arose in whicli wliat would be called tlie leaders of society at Fort (Jarry were involved. It was a (|uarrel of Comiiany otticials. Capt. Foss, staff officer of the jiensioners, bi'ought an action for -day in pro- ceedings. L'p to the year l.S4i( tlic wr)rk done by Juilgc Thom seems to liaxc been very satisfactory and efficient. Col. Ci'ofton testified that in 1S47 tiie li'gal business was douo in a jierfectly smootli ami successful manner. In 1S4S, Judge Tlioni delivered judgment on the Calder case, involving tlie jui'isdictioii of the Hudson's Hay Conipany, anv a. WESTEItX LAW II.MKS. II Fifteen years of service in the remote and isolated settlement of Ked River had enabled the Recorder '■ omdate a handsonie <-om[)etence. His friend McC'allum was dead, and ti ..■..oles between the Company and the people made it disagreeable for the well abused judge t<» remain in his New World sphere. He accortlingly resigned, and returning l>y way of \'ork Factory sailed from that poi't in tiie ('oin|)any"s ship. " The I'rince of Wales " on the 2 Torrington Sipiare, a score of years longer. The family of his depai'ted friend were a constant care to him. For them he always showed a jjassionate regard. The Bishop of Montreal, on his visit to Fort (iarry in 1844, mentions that at that time Recordei' Thom " was deeply engaged lattei'ly in liiblical studies." In 1821, at Aberdeen he had joined the Hebrew class. Hut like ntiinbers of great students he iiad become involved in the seemingly ho|)eless mazes of the intei'pretation of the prophecies of .Scri))ture. In 1847, ho i;nnipleted for pulilication ids work, entitled " The Chr'onolr)gy of Prophecy," on the typical character of what he calls " Abraham's 430 years." An active miml like that of .ludge Tiiom nnist have sometiiing on which to work. In nut having enough to till up his time and utilize his enei-gies, he must have a<^)nie abstruse line of study. His mind seems to iiave had a bent towards mathematics, and his incIii\ation and pro)ial)ly early training led him to a nunute study of the Bible, even in the original tongues. As showing his Ix-'Ut toward figures, the writer remembers Judge Thom .siiying that he never got into a London omnibus many of whose figures run up into the tiious- ands —without resolving tlie nunil>er into its factors, and combining them in every |x>ssible manner. Nothing delighted him so much as to get an appreci- ative listener, and to refer for an hour at a lime to the mai'vellous events of history, and to show that tlu'y wei'e not isolated, but were part of a gri'at jty.-*tem of developnu'nt. In summing up the life of the Hrst .hulgc (>f R\i|iert's Land, it is evident We aiedealinu with a man of great activity and cajjicity. He was perfectly at h^»nie in tlie (Jrcck ami Lilin i lassies ; he was a HcIh'l-w sciiolar and well ac«;'iuinted with our own literature. He was well versed in law, and gave Jiif opinions with fullness and decision. .An active newspi|>er wi-iter in his «« ir days, he always maintained a lively interest in pu))lic affairs. It was I' - (liiafortunc to be ousted 1 ctwce'.i the two strong forces of a ^:v^ii\.t trading L.>m[)iiny's interest, and tiie iiatiir.il aspirations of :i people after freedom. Xo doubt tins wouniled his |)rnurder's very able and exhaustive analysis of the rigiits of the Hudson's Bay (JomiKiny, which have attracted so nuich attention lately, and also be- cause it is the first written judgment ever delivered in the Courts of the country that has come down to us ; to the latter because of the historical interest with which it is associated, and also to give the olKcial report of a trial ccmoerning which many writers iiave given fi'ee reign to fancy and ex- aggeration without taking the trouble to ascertain what tiie jjarties chiefly interested had to say in the matter. Neither of these cases have been printed before. DISTRICT OF ASSTNIBOIA, \ RUPERTS LAND. J In thk Cask ok .Iamks (!am)kk. * At an ordinary meeting of tiie Court whicii was held on Thursday tiie seventeenth day of August in the year of our Lord one tlumsand eight hundred and foi'ty-eiglit. Prmi'til : t Ai.KXR. Chkistik, Ksqre. Ada.m TlIOM, " .loHN RlNN, Al.KXR. R()S.S, " * Taken veibatim from vol. 1, pp. 1(X>-114 incl., of the (Jeneral Quarterly Court Recorils deposited in the Legislative! Lilti'ary at Winnipeg. t Of these gentlemen, Mr. Chri.stie was (loviirnor of Assiniboia, Mr. Tiiom, Recoi'der of Rupert's Land, Mr. Bunn, Councillor of Assiniboia, and Mr, Ross, Shcrift' of Assiniboia. WKHTEaN LAW T1MK«. 13 tlio eiglit iteily Mr. and Mr. Recorder Tlioin commenced the proceedings by rculing his opinion in the (Sise to this effect ;- - "James (Jahler has been brought into Red River Settlement to )»e tried Injfoi'e us for a felonious homicide alleged to have been committed by liini in Peace River, which, after piissing through (Jreat Slave I^ke, continues its course to the Arctic Ocean under the name of McKenzie's River. Have we jurisdiction in the matter ? Individually, I an.swer in ,e affirmative, submitting at the same time, the giounds of my opinion to my brethren on the bench. But before I enter on the subject, I beg to express my satisfaction, that, on a point of such difficulty and importtince, my habit- ual mode of discharging my iluty has not left me at liberty to be influenced by the circumstances of the case under coiisideration. I need not remind you that I have uniformly embraced every opportunity of binding myself down in the absence of most of the extraneous (guarantees of judicial impsirtiality, by the enunication of every general princ pie that can be brought to l^ar on any jmrticular issue. In pursuance of this rule of action, I have already twice anticipated the very opinion, wiiich I am now about to justify and support. Six years ago I comnmnicated it to my official superiors in an essay on the trade and judicature of what is connnonly known as the Indian Terri- tories ; and in February, 184.5, I embodied the same in a detailed view of our jurisdiction, which I addressed along with various other matters, to the (irand Jury of this district. To come to the meiits of the case. The Hudson's liay Company's charter, on the 9th page of the printed copy, conveys " the sole trade and commerce of all those Seas, Straights, Bays, Rivers, Lakes, Creeks and Sounds, in whatever latitude they shall l)e, that lie within tlie entrance of the Streiglits commonly called Hudson's Streigkts, together with all the lands, etc." Coupled with the professed object of finding " a new ptissage into the South Sea," nothing can fairly be lield to " lie within " the starting point of the royal grant, excepting what may V>e continuously connected with " Hudson's Streiglits " by means of the sea. Now, down to the discovery of the straits of the Fury ami Hecla, Hudson's Bay alone, in addition, of course, to Hudson's Straits, was known to " lie within " the starting point in (juestion. As, previously to such dis- covery, the competition between the Hudson's Bay (Jompany and the fur traders of Canada had come to a close, the only matter in dispute between the rival associations with respect to the extent of Chai'les the Second's Letters fatent, as distinguished from their validity, was not how much of the coast, but how much of the adjacent interior the charter comprised, so that the distinguished lawyei's on either side M'ere not reciuired to consider tlie stretch of tiie ciuirter to tiie westward. But tiie discovery of the Straits of the Fury and Hecla, under the light of other discoverieR, brouglit within the range of tlie ciiarter the wiiole of the westward coast as far as the boi'ders of Ru-ssiaii America, showing the same to " lie M'ithin " the entrance of Hudson's Straits. The Hudson's Bay (Com- pany, it is true, did not alone affect al! tiiose discoveries. This tact, however, does not stand in tlie way of the aforesaid interpretation of the Compfvny's 4 u WKSTEUN I. AW TIMKS. cliiiiiis. The chai'tJ'r does not limit tlio ( 'ompiiiiy in tliis respect to the enjoy- ment of its own discovcnies ; en the eontiary, moi'eovei', tlie IS (Juo. 2, eh. 17, — fi .stiitute jmssed to enconrage iintl reward tlie seareh for a Nortli-West Fa-sHage -expressly saves tlie " estate, etc.," of tiie Hudson's Bay (Jompany. in tlie analag^ius case, too, of the Soutii Sea Company, the 9 Ann, cli. 21, s. ">0, vested in that corporation all the island.s that might he di.scr)vered with- in eoi'tain limits whether hy its own ships or hy tho.se of the ('rown. Nor was the extent of the gi'ant, which this interj)retation claims, at all inconsistent with tiie spirit of the seventeenth ceiitui-y. Carolina, which, according to its cliarter, was private j)roperty as well as Rupert's Land, covered the whole width of the continent from the Atlantic to the Pacific ; antl New P^aiu^e, as vested in a numher of individuals hy Louis the Thir- teenth, was to extend in length from Floriila to the Ai-ctic (,'ircle, and in hreailth from Newfoundland to Lake Huron, and thence as much farther westwai'd as the f)arties interested might carry tiie (iallic name. But in another respect also, tlie ciiarter lias iiad a growing aeconiplish- ment, and that, too, iieyond tlie most liheiul construction of its language. According to tiie terms alike of tlie apjilication and of the grant, the Coni- jiany's Territories, within the general limits afoi'esaid, were to lie restricted to sucii j)laces as were " not already actually possessed hy or granted to any of our sulijects or possessed liy tlie suhjects of any other Cliristian Prince or State." Now there is reason to helieve, tiiat hefore, the fui' traders of New France had reachetl some of tiie tril)utai'ies of Hudson's Hay. If such a fact could have heen cleaily established, tlicii the entire extent of French possess- ion would iiave lieen lost to tiie ciiarter, even on its own siiowiiig. P>ut tiie actual right would, in all ])rol)ai)ility, iiave i)eoii very different, for the treaty of Utrecht, without eiKiuiring into tiie oi'igin or duuition of French possess- ion, transferred to the Company tlie Frencii portion, wiiatever it migiit lie, of tiie territories as generally descrilied in tlie ciiarter. 'I'iie gradual exten- sion to the westward tiierefore of tiie maritime liorder wi tiie (■onipauy's territories rests at once on tiie es.sential terms of tiie grant, and on tlie his- torical analogie.s of tiie inlaiul houndary. Tiien, a^ tiie charter includes not merely " Seas and Streigiits," hut "' Rivers and Lakes "--thus, in fact, com- prising everything back to tiie iieigiit of land — Peace River, as a matter of course, must follow tiie fortunes of tlie spot wliere its waters disciiai'ge tiiem- selves into llie ocean, l)eing just as iiiucli within tiie cliartereil territories as tlie nioutii of MacKenzie's River, neither more certainly so, nor less cer- tainly so. Were 1 not anxious, at tiiis distance from tiie iiusy world, to render these observations as complete as possiiile, I should iiardly deem it necessary to anticipate an ol>jcction tiiat may lie founded on the use, whetlier cliarter- ed or populai', of tiie words " Hudson's May." If tiie Soutii Sea (Jompany lield by one and the same term aiul from one and tiie same date, not only the American coast of the Pacific, i)Ut also a considerable part of the Atlantic coasts of Spanisii America, tiien may tiie Hudson's Hay Company consistently claim to liold sometliing more tiiaii tlie siiores of an inland sea from wiiicli it takes its name. Again, to cite file more formal title of tiie cor[)oration J WKHTKUN LAW TI.MKS. 15 reiuler eeasary duirtei- Diupaiij' only tlie Atlantic dsteiitly wliit'li juration bust nicntionetl, surely the Ailventurers of Kngland " trading into Hudson's Bay '" niigiit without violating the pi-oprieties of language, have sailed throw/h it or Iki/oikI il. even if the document that incorporated them had not contemplated the tiniling of " a n(!w Passage into the South Sea," ancars to ine to he embraced within tlie limits of the Comptuiy's chartered right of exclusive trade. Nor has the Onnpany, to the be.st of my knowledge and belief, sacrificed any of its privilege in the premises by its acceptance of the royal licence, as sanctioned by the 1 and 2 (leo. 4, ch. (i(j. That statute authorized the issu- ing of a licence or of licences for trading with the Indians " in all such parts " of North America as shall be specified in any such grants or licences re- " spectively, not being part of the lands or territories iieretofore granted to " the said (Jovernor and Company of Adventurers of England trading to " Hudson's Bay and not being," etc. When taken in connection with the avowed aim of the stiitute to put an end to competition l)y c(jnverting a hitherto open ccmiir.erce into a monopoly, the exemption of the " Territories " heretofore grant mI i.j the Hudson's Bay Company, would, uniier a fair and liberal construction, comprise as well the regions of the secondary and con- tingent grant as those of that which was primary and absolute. If so, any licence for Peace River — a stream emliraced, as already shown, under either grant — would so far be null and void. In all probability, however, no tract of Wilderness has been paiticularly specified in the Company's licence, such specification not being necessary for any paiticular purjjose in favor of the chartered hoblers of the exempted territories. In fact, the license could not be expressed in any terms more advantageous to the (Company than the very words of the statute, for in this way alone could it make sure of covering all that the charter had left, or might thereafter be found to leave uncovered. To bring all this to bear on the question at issue, the chartered privilege of trading carried with it tlie rights of judicature. Tiie statt«. , on its six- teenth page, ordained "that all Lands, Islands, Territories, Plantations, " Forts and Fortificati(ms, Factories or Colonies, where tlie said Company's " Factories and Trade are or shall l»e within any of the Parts or Places afore " limited, shall be inunediately and from henceforth under the Power and " Command of the .Said (iovernor and Company, their successors and As- " signs : Saving the Faith and Allegiance due to be i)erformed to us. Our ' ' Heirs and Successors. " There would, iiowever, be tiiis pliico tliu wliolc of tlic Nortli-West iiiidur the criiiiiiiid jurisdiction of the courts in ( 'iiniidii, yd Ji (liit^stion was initncdiatoly laised wlictlier or not its jii'ovisions atl'cctcd Ru- pert's Luid ; ami tin; 1 and '2 ( Jco. 4, cli. (it), after recording in the most luithentic forms tiie doiihts on the suhject and deciding the same in favor of the extraneous triltunals enactey Law entitled to claim and exeicise under theii' "Charter." Under the operation of this rider, our jurisdiction remains in its original state ; if it over existed in I'eace River it still does so. IJut, even supposing our jurisdiction never to have existed in I'eaoe River, and supposing als;), as a matter of course, the jurisdiction of Canada to have heen extended over tiie stream in ijuestion, I iiave still taken the respon- siliility, as resident counsel of tiie Hud.son"s Hay Coiii])any of declining to recommenil tiiat dames Caldei' should he .sent to Canada for trial. It is my opinion, as einl)odied long ago in the aforesaid essay and charge,* that the 3 and 4 Vic, cli. 3."), commonly known as the Act of Union, has not saved to United Canada the jui'isdic'tion vested in the sejiarate provinces l)y the 4.'{ weo. ;{. cli. i:W, anil the 1 and 'itieo. 4, ch. (>(>. These statutes, l)cst oliservcd, did not mei'ely provide for the trial in Canada of sucli jtersoiis as were accused of having committed crimes in the Xorth-W est. 'i'licy gave l)oth to the jmliciary and to the legislatuie of either l)roviiice an authf)rity, not the less certain for it being incidental, in an<■ in the Hudson's l>a\- ilon-'c. LomiIoii. 'ri'"V must 18 WESTRUN r.AW TIMTS. iniiy I'luilti lii.s keepers in iilinoHt ev< ■■y eiioiiiiipinent anil on tilnioHt every portage. After a period of coercion ranging from six to eiglUeen niontl)", acrciriling to tlie locality of tlie crime aii'l tlie simsmii of the year, the prisoner of " any person or jicrsons whatever " is lirougiit, ])i'olialily for the first time, witliin tiie cogni/;uice of law. If im is (hen ilischarged, the oppression of the .system needs no connnent of mine, lint if he is formally connnitted for trial, he must jjass several months in gaol before steps can he taken foi' tlu! snnnnoning of witnesses, and l)efore lie itan he confronted with the wit- nesses for the prosecntion, or have the henetit of those for the defense, lie mnst, nnder the most favoi'ahle ciicumstances, lie tw() years longer in the pi'isons of what may to liini he a foreign land. Dut, the rej)uted oH'ender's preliminary diffieidtie.s are not yet over. His trial may l)e delayed on various grounds, and to give an instance of this, the very last ease, and that is now twelve years old, was postponed fi'om one half-yearly couit to another, liccause ntiither hench nor har possessed, or eoidd ])rocure a co|)y of the very statutes which conferred the jurisdiction. When he is put on his trial at last, the investigation of the truth is nioie likely than otherwise to sutler fi-om tlie want of competent interpreters ; and even the jin'ors themselves are almost inevitahly deficient in knowledge of local customs and local character. Meanwhile, the prisonei' may he innocent, while the witnesses, who cer- tainly are so, are enduring in the absence of theii' wivts and families, a pun- ishment perhaps heavier than tlie pi'isoner liimself, even if guilty, may deserve. Under these circumstances is it too much to hope, that the jurisdiction ovei' what are connnonly known as the Indian Territories, if it is not ours already, may he vested in us hy the Int )eiial Parliament, more particularly as the (iovernor of the District of Assinihoia is henceforward likely to hear a closei' relation than before to the Crown. I beg, therefore, to move, that James ('alder, for whose trial in fact, the witnesses are not in this distiict, be detained in custody, and that a eopy of this opinion and also of the evif Assiniiioia, I'ed I'iver Settlement. ' iioHt every II iiHiutb", r tlio first ()|)|)ri;ssi(iii lOMimitleil liikoii for h tlio wit- lutViiiso, iu; iigor ill the over. His of tliis, tiic [ from one DSHesMed, or urisdietioii. til is more I'eters ; iiiid owleilge of s, wlio eer- lies, a piiu- iiiy (Icsi'ivu. jurisdiction is not ours [ticuliiily as to bear a faet, tile a eopy of ii tile least expressed wliieii ex- aiid l)iiid ieejiing of sand eiglit llt'.inent. WESTRUN LAW TIMKS. 19 Held at liie Court House, on tiie seventeenth of May, one tliousaiid eiglit Imndi'ed and forty-nine. I'll s, Hi : Ma.iok f'Ai.DWKi.i., (loveinor of AssiniiK)ia, President. .\iiA.M 'I'lio.M, l';s(|rl^, Keeorder of ilupi^rt's I^an. The Himlde. Hiidsoirs liay Company. Pierre (!uill(Nium Sayer. j On tiio defen.i.iiit iieing eaileii to answer to tiie cliarget against iiim a eonsideralde time ehijised liefore lie could he found, Imt on the aasuranee of Shi^ritf Ross that he was near at hand tlic Court waited, and the Sheiitl' left the lieiieh in search of him hut in })lace of the defendant coining to the har of the court, James Sinclair, Peter Carrioch and many others presented themselves as Delegates from a great iiumher of armed Half- Breeds wlio W(!re outside the court. James Sinclair liaiided a pa[)er througli the Clerk of the Court to the (lovernor. After the meiiihers of the IV.;nch had read tiie ])aper, the ilc^conl- cr asked Js. Sinclair in what cajiacity they appeared there. Ffe answered, •' As Delegates of the people. The Recorder rejilied tliat they could not he received ill a Court of Justice in that cajiacity, and then explained to them from the Honble. 1£. 1>. Coy's charter, that as tlie charter then stood the com- pany had the exclusive right of trade, and until that charter was set aside liy Act of Parliament any person transgressing hy trading was committing a breach of the laws. Siiudair here mentioned tliat maiij' eminent characters in tlie Houses of Parliament in Knglaiid I'litertaiiied great doubts as to the val- idity of the H. 1). Coys eiiarter, and in support of which assertion he handed to the bench a 'J'im<--' Xews- Paper of the month of August last. After some fuither diseiission it was oH'ered to Sinelair to jilead for the Defendant Sayer * This Court is the same as the Court of the (iovernor anil Couiieil men- tioned on p. I in wiiich the preceding judgment ri Ciililir was jironounced. The name here given was tlie one liy wiiich it was almost invariably known, tliougli the former is rciilly the fuller and perliaps more correct title. In tiie records of the Court itself, however, tlic title in this case is the one employ- ed witli ])iit very rare exei^ptions. Tliis rejioit is extracted verbatim from the (leiieral (i>iiarterly ( 'oint Records, \. ('o.\'-- lerritorjes without a license 20 WESTEItN r.AW TIMKS. ami leave jiiveii fur liim ainl liis jjarty to wit'idi'iiw tiiid consult on the same, anil tlie oiler niaile hy tlie Keeoider to Sinelair that lie inii,'lit sit as Koreiiian, uii'l (lariiocli on the .hiry if he wisheil to ilo so ; all that he wisheil was a fail' ami impartial trial. 'I'iie party then « itliilrc^w. After some eonsiderahh,' time Sinclair appeared at the liar with Sayer and thu .lurors who h.'.d sal on till! former cases were still in the liox, when Sinclair olijected to live of tiiem, ami eleven others whosi' naiiies wei'c called ; at last the .liny was as follows : |)oiiald (iiinii. Ml'. John Vincent. Ml William 'riioinas, .lames 'I'ait, Xarcisse Marion. I'hilip Kennedy. .I'anies .Monkmaii. Robert Sandison. I'rospere Dncharnie. Krancois iJninean. .Martin Lavalle. l)oniini(|ne nucharme. Magnus LinUlater, I'ost Master in the Honorable If. IJ. ( 'oy's .service, l>e- ing duly sworn and interrogated, ini' .Morin, being duly sworn and inicrr:)g,iteil, deposed : -Tiiat Ciiief Factor, 1. Fi. Hirriott, of the H. 11. Coy., a-^ked n.^ u ^ intended to go out to trade and if I did to conr; to him and he would give n j advances for tiiat pur])ose. All \Nhich w.-i trutii as the deiioneni should ai swer to (iod. Alexe < ioullet, being duly sworn and interrogated, deponed ; -'I'hat lio Ir.id bouglit a horse from Ciiief Factor Harriott and hid ti Id Mr. Harriott that lie would jiay him with furs he would iiade, and he requested that 1 sliould not go near Doctor Todd's Fort. .Ml wiiiiji was truth as the (loponcnt should answer to ( Iod. Tile ilei)inient iiere stated that wlieii .Ml'. Harriott advanced liiin credit in the win! r he forbid him to trade with Indians but said, nothing about Hilf-1'.rccds. Clii(;f Factor .lolin IJalleiiden, of the Hon'blc H. U. Coy., de- nied thi- as he himself liad lojd him exi)licitly lobe sure that he did not trade and if iu' could not ])ay his debt in furs, he would take salt from him fiu' the balance tiiat might be due in (lie spring, and thai it was .solely on his ri^coin- iiKMidation that Mr. IfairiotI a.Uaiiced him. as tiic character of the Defeii- tlic Miiini', is Kdruiium, 1 was ii fail' •()ii.si(U'i'iil)lo lii'.il nat (III IVl' of tlu'iii, as follows : inc. It. lariiK'. servic'i', l)c- lirouglil (111! tlieiii, \w le- If. Hi! said mt tiiiic. Iiiinti'il till! Iiiitii as tlic I : -Tliat lie • killed any- clatioiis of a 111! traded as tradiiig than tiioso lid aiiswiT ThatCiiiof yi) out to L'S for that od. -I'liat ho Harriott tfd that I depolit'lit ma criMlit iiij^ aliout Coy., do- not tradt! ill foi' tho his fw.'oiii- II' Dcfcii- WE.STKKN I-AW TIMES. 21 diiiit |)ri!viously liad hft'ii very iiiditl't'i'i'iit and Mr. Harriott did not wish to havi' aiiytiiing to do with him. Tile Keooider, after MUimniny uj) the evidence, addressed the .luiy and cxpliiiiicd to them tin; Ki^dits of tliu H. H. ('. to tiie trade. 'Pile .liny witii- drew and after some tiini! returned into court witii a vci'dict ; '{"hut I'ierre (Jiiilleauni Sayer is guilty ofTrading Furs. The Foreman, Mr. I), (liiiin, then addressed Chief Factor ,101111 Halleii- den, as the I'roseeulor in this case, rccoinmciiding the Defendant to mercy as it a|>])cared that he thought he had a riglit to trade as he and oliiers weie under the iinjiression tliat tiicre was a free trade. Mr. IJallenden iinniediate- ly stilted tliat tiie company did not value tiie Furs wliic;ii had lieen traded, hut it was the principle of t!ie transaction which he looked at, hut since a Jury has now given a verdict against tlie illicit trading he willingly acceded to the I'l'connnendation of tin; Jury and should drop the otiier tiiree ca.ses. Charge to the Grand Jury of Assiniboia. (fKN'TI.KMKN OK TIIK (iK.\M) .IlKV, •JOtli, Fi;i!ur.\Hv, 184"). 1. In that country, from wliicii we derive our laws, grand jurors are nevi'r permitted to enter on their duty witliout being specially reminded of its nature and importance. If this precaution he expedient in Knglaiid, where re.'^pectahle individuals are so freipiently reipiired to act as the pioneers of criminal justice, it must be more than expedient in Rujiert's Land, inasmuch as grand juries, besides being so seldom summoned to take part in fmr judi- cial proceedings, are altogether unknown 10 the jurisprudence of that couii- ti'y, whence many, if not most of you, in common with a majority of tiie bench, derive your origin or education. In Scotland, the country to which I have just alluded, the grand jury's essential business of preferring an accu- sation before those, who are to ascertain its truth or its falseliood, is performed by one of the highest olHcers of the government, who may, in general terms, be said to resem])le tiie attorney-general of England. 2. Hut this peculiarity of the Law of Scotland, over and above furnisli- ing me with a special reason for more than ordinary fullness of explanation, cannot fail to impress you with a solemn and grateful sense of the contidinglili- erality of the Law of England ; wliicli, while it actually screens the collective community from the possibility of official op2)rcssion, virtually raises its in- dividual members to the level of one, who is more decidedly -superior to me in knowleilge and in station, than I am to the least intelligent or the hum- blest of yourselves. 3. Pondering, therefore, on the dignity of your ])osition, and on the re- spoiifiiliility of my own, and feeling anxious both to protect myself against misconception and to instruct you with precision, I have resolved to speak from this paper, and to hand tiie same, for your more mature deliln'i-ation, to your able and experienced foreman. In other lands, sucli expositions of law I 22 WKSTKIlN LAW Tl.MKS. ami jiiilit;atiU'u uliixiHt itiviirialily nMvh l)u> i^uiicnil cur in all the gtMiiiinviit'HH of tlii'ir <)ri>,'iii;il fori'c ; and, tliiiiii;li tin; iiistitiitionH of tliJH reniotc coiiut r»f tlif f.irtli civiinot vindiiMti! tlit'ni«i'lsi'n with a Miniilar voii'o ; yot tlicy iin- )loul)ti'iUy posHi'ss, in lln^ utnioMt |i(>sHiiilu |)nl>li>--ity, their lumt arnuuir of do- fi^nru anainst i;.rii(iriUit or intci't-Mti'il niisi('|ii»'Hriit,itionM. 4. I'liwaiils of live yiMf.s uj^o, wlicn 1 liaii tli'' honor of adilruHHin;;, foiMiie HrHt and last time, so nnmuroii!* and inllucntial a Itody of my fidlow-eitixuns, I Htrii:tly i'(iiitinf(l mysi^lf, as pci'liaps ln-st liccanu^ a stranger, to tin- mere dis- cussion of tln' singlt; i;a,si' that was to Itu lonsidcri'd, — adist'nssion, liy-tlic-iiyi!, K(>(!XtunHiv(> anf uri)ing tho confossodly iiig foreign Di'poiations parliament innally re- admitting 11 (juestion were i'('|M'at<'illy fortilicil with parliamentary sanetion in the most express ami jM>sif ive terms, so as to he renilered valiil, even if originally ilefeetive ; aiul perhaps no (loeuinent was ever more fi'eijiu'ntly eontirmetl hy the paramount authorities of any oiintry than I lie Charter of I'rinee Rii))ei't aixl his ilistin- guislieil assoriates. S. Hy 7 k H Will. H, eh. •_'•_', the proprietary plantations, siuli as Rupert's T.rivileges of the Hudson'.s May ( 'ompany were d(Hdared to Ix; saved, not- wilh.standing the tenor and tendency of the Ai't itself ; .so tiiat here was a general recognition of the whole Charter with a special referenee to its com- mercial provisions. Hy ISCieo. 2, cli. 17, a eonsideralile reuard was otl'ered for the di.scovery of a iiorth-we.st passage through Hudson's Straits ; and, even against this possilile instance of nominal encroachment, the C'liarter of Kupert's Lind was again saved, in the same words, and with at least the sanu- etl'ect, -a saving the more remarUalile, iiiasmucii as it was almost entirely supertluims. liv 14 ( leo. .'{, cli. ,H.'<, the noilherii hoiindary of (,'anada was to he southern houndary of " the territory granted " to the Fliidson's Hay ('om- pany, 'he [lailiamentary province merely claiming to the nortliwaid wliat the letter of thi^ royal grant, without ifgard to actual |)ossessioii, might leavi- un- appropriated. Hy 1 it '2 Ceo. 4, eh tlti, the Charter of Rii])crt"s Land was twice expressly recognised : its first section, though its single ohject was to jirevent competition, yet contineil the license to the i-oiintiy not covered hy the Charter ; thiiB positively saving, as in the last mentioned ease, the extent of territoiy, and negatively assuming tlic riglit of trade tts an already exist- ing security against the dreaded evil ; and the closing section of the Act re- vival, in the most emphatic language, the chartereil jurisdiction which one of the intermediate! sections had extinguished. Hut this statute, when t;iken in connexion with the statute which it amended, would clearly show that the royal Cliarter, so far from needing a pailiaincntary recognition, could stand even against a parliamentary attack, unless made in a form more pointed than that of inference and implication. Tiiough 4;> (Jeo. .'i, ch. I. 'J8, extend- ed the jurisdiction <»f the Canadas over the adjacent territories as liaving no jurisdiction of their own, yet Rupert's Liiid, comi)rising, hy-the-hye, tlie<»iily adjacent teri'itories, was considered to he (!xeiiii)ted, inasni'ich as it had the jurisdiction of which the statute presumed tile ai)sence ; and this very opin- ion, after being promulgated by parliament itself in 1 & 2 (ieo. 4, cli. (ili, was first remedied and then left to its operation, as already seen, by tliat same statute. 9. Hut the royal charter has been recognized by public documents, more important in tiicir etl'tn't, though, |)erliaps, less obligatory in their character, than Acts of I'ailiameiit. In the reign of (^uceu Anne, the treaty of LItri;clit transferred from France to England all right and lilh! to the chartered terri- tories, French Canada an< I Frcncli Fiouisiana ; tlius accei)ting tlu; (diarter as th(! arbiter of their nortliei'ii boundaries, and reiidciing to its limits the very homage which English Canada and the Indian territories still render to the 24 WESTEUX LAW iniES. same. Agnm, in 1794, the Treaty of amity, (.".ommerce, and navigation l»e- tweeii (!re;it Britain and the United States, permitted tliesiihjei;ts and eiti/ens of the respective powers to er'ss at pleasure tiie intei'national Imiindary, an;f Factor of tiiat place and his Council to "transmit the party, togethec with the offence, to such other plantation, " factory, or fort, where there shall be a Oovernor and Council, where justice " may be executed." * * 12. This j)assage ol)viously presents four separate and distinct topics of discussion, the rule of decision, tlie geographical range, the standing of the par- ties in any cause, and tiie constitution of the tribunal. l.'{. \\'itli regard t(» tlie rule of decision, the express ])rovision of the Charter is little better than superfluous; for, according to the fundamental ;)rin<'iples of colonial settlements, Rupert's Land, unless its (^barter had posi- tively determined th'.; contrary, would have liecn subjected to " the laws of this kingdom,'' as existing at the time of the grant. Our princijial rule of I i likvigation l>e- ts and citizens oiuidary, and, l)ut tlif)Ugli it lieiicy of pio- F the chartered )Ut merely l>y \,\v any detinitii it foundations, honest douht. Parliament of tland and Ire- j predecessors k-e trade, witli phical extent ; inst individual md as against ed to ha inde- founds, over a he Second may 1 them as to the id copy I find Lnd respective factories, col- oi' territories g to the said iiises, wlieth- l to execute inor shall l>e factories, or mnot be ex- case it siiall is Council to plantation, where justice inct topics of ingof the i>ar- vision of the fundamental rter had posi- the laws of ici]ial rnU- of WE.STKHN LAW TlMKs. 25 ile<.'ision, therefore, is the law of Kngland, of iJnd May, Hi70 : or, to speak more correctly, sucdi portions of the same as might he ay an able writer : " In the case of an uniniiahited country, discovere«l and planted hy Kng- " lish subjects, all the English laws then in being, which were the birtliright " of every subject, are immediately tliere in force. IJut this tloctrine must " 1»! understood with many and gre'vt restrictions. Such colonists cany with " them only so much of the Knglish law as is applicable to theii' own situa- " tion, and the condition of an infant cr)lony. Thus they acknowledge as in " force, 1st, the Common IjSiw of Kngland ; "2nd, such Acts of Parliament as " passed before the settlement of their colony, ami are a))]iticable to its con- " ditifm. Under the qualification contained in the last part of the rule, " many entire exceptions have been admitt '. Of this, tlie bankru]>t and " {K)or laws ; the laws of police ; tithes ; and ilie mortmain acts, furnish apt " anil familiar examples. Of acts passed subsecjuently to its settlement, " such only are considered to afl'ect a settled or chartered colony as have that " [K)ssession expressly named, oi' virtually inchuled in them. But all naviga- *' tion acts, acts of revenue and trade, and acts respecting shipping are ohli- " gatory, though the colonies are not named in them. 14. On one most iir.poi'tant point, however, the closing sentence of this quotation is not applicable to this country. In j)ractice, whatever may be thf theory of the case, Rupert's Land, differing, as it does, in government and constitution from every other dependency of the United Kingdom, is exempted from the operation not only of revenue-laws in general, but even of those revenue-laws in j)articular which expressly affect the colonial pos- sessions of the empire in this (piartei' of the globe. At this moment, if we stf»f)d in the same political relation to the mother-country as our brethren of Canada, our imports from the United States would ))e burdened with duties heavy in themselves, and liable to be made more heavy by the imperative aildition of all sucjj duties as are, or may hereafter be, levied on our imports from the United Kingdom. To offer instances of the ailvantages of our jjeculiar position, — advantages of a kind to be appreciated even by the least tliouglitful members of the coninnmity,— coffee would pay five shillings a ewt., being, I apprehend, at least tiii'ee times the amount of our municipal duty ; raw sugar would [r.iy the same, being, as nearly as j)ossi)»le, five times the amount of our municipal duty, even on refined sugar ; refined sugar would jwy twenty ptr a lit. not on the invoice pi'ice, but on the local value ; and cot- tons, stoves and tobacco would pay seven prr cent , to be similaily estimated, — one and all of these duties being to be pairity so high and so explicit, the vague gencality of tlie Chartei' can never be permitted to introduce the English laws of to-day foi' the j)rcsent and of to-morrow for the future ; nor, in this case, is expediency repugnant to authority : foi', surely a ti.xed I'uie, which may from time to time be- modified to suit our condition, is i 2G WESTKRN LAW TIMRS. more convenient than a rule ever varying to suit the comlition of others, but never to he varied to suit that of ourselves. I(i. liut th' law of Kngland of 2ii(l May, \ti~'\ is not our only rule of de- cision. To pass without furtiier notice the ol)viou9 addition of the municipal regulations, the Chaiter furnishes a subsidiary rule of its own ; or rather, the Cliarter is, with respect to Rupert's Lind, one of " tiie laws of this king- dom " of 2nd May, 1(»70, and as such nnist he judicially noticed without be- ing pleaded ])y the interested parties. If, for iiu^tiince, any suit that might involve an infringement of the chartered privileges were to arise, we should be bound to inquire whetiier tlie infringement in as to reacli land in the latitude of fifty- two degrees and a half ; travels due west to the Lake Winipegos ; crosses the same so as again to reach lanoia. as heing Land, as con- justice, are in- t of (Governor t districts, the y's resolutions sheriff's, tlie 1 original grant jal regulations iilred miles in former, whicli Lake of tlie the Winnipeg titude of tifty- )egos ; crosses egrees ; once Assiniboine in of Rujjcrt's )f departure. IS hardly one- iposterous to n some res- l)tuous, as it tangihle in- t would have on Winnipeg hoine River, )een specially would toucli, )eared to set opening the ids, the local •ssly exempt- WESTERN LAW TIMES. 27 ed, sliall lie liahlc to {Kiy toll on entering tiie smaller district, from whatever point of the compass, whether witiiin Rupert's Land or without, they may have originally come, and l»y whatever means, whether legal or illegal, they may have reached the cii'cular boundary of local taxation ; and the actu- al receipt of such toll on the part of the municipal autiiorities, of coui'se, con- fers no right whatever, whether retiospective or prospective, to th>' prejudice of third parties. 19. Having thus defined the district of our inunediate jurisdiction, and distinguished it from another district of the same name, I shall now enter on the dilticult ami interesting task of defining in mass those disiricts, which for the purposes of criminal justi(;c, are indirectly placed under our superintend- ence. The interior Itoundary of the chartered territories undeniably coincides with all the remotest heights of land, that send down water to meet the mar- itime boundary of the same, liut the maiitime limit, on which all the other limits thus depend, seems to me to be much less certain than is genei'ally im- agined. Some lawyers, to whom I couhl not without impertinence even ac- knowledge myself to be innneasurably inferior, have, I believe, offered the opinion that the maritime limit coincides with the coasts of Hudson's Straits and Hudson's Bay, so as to exclude from Rupert's Land, all that lies beyond Portage La Loche. Hut the Chartei', with express reference to the anxiously desired discovery of a nortli-west passage between the Atlantic and the Paci- fic, comprised all that might lie in any latitude within the entrance of Hud- son's Straits ; the corresponding condition of any longitude being doubtless omitted, as neces-arily involved in such express reference to an indefinite extent of westerly exploration, or as necessarily involved even in the very words of the provision itself. Now, in this view of the case, Rupert's Land would clearly advance westward, stej) for step, with the progress of nuiritime discovery; being, at the date of the opinion aforesaid, precisely what the lawyers in question hehl it to be ; but having, since that time, carried its maritime Ixmndary to tiie north-east angle of Russian America, and that, in a great measure, through the exertions of its own adopted children. This palpable truth has pei'haps been kejit out cf sight by a looseness of phrase- ology, to which the charter itself has given rise, — " The (iovernor and Com- pany of Adventurers of England, trading into Huds(»n's Bay," being naturally abbreviated into Hudson's Bay Company, and Hudson's l?ay Company's ter- ritories, being as naturally abbreviated into Hutlson's Bay Territ(U'ies. Had the corporation been described, as it might nutre pi'ecisely have been, as trad- ing into Hudson's fStraits, tiie same abbreviations would have been equally probable in themselves, but not e(jually liable to the same inferential misiip- plieation. But the chartered territories, as thus defined, have been considerably motlitied by Treaties, the iiiteriiational boundary fi'om Canada tf; the Rocky Mountains, generally lying to the north of the heigiit of lan6, could certainly claim nothing more, and might perhaps he unalde t«> claim even as much. Rut even this concurrent authority a[)pnars to involve the selfsame inconsistency with the (Charter as that which has been already shown to have excluded tlie external jurisdiction from the char- tered territories in general, — tliat fundamental document having prospective- ly planted, frfmi the beginning, its own jurisdiction over the whole of tlie granted territory, though confessedly, in a great measure, neither possessed nor discovered. I subjoin the applicable passage : * * " All lands, islands, territories, plantations, forts, fortifications, fao- " tories, or colonies, wliere the said Company's factoi'iefi and trade nrt', or " SHALL HE, within any the parts or jdaces afore limited, shall be IMMEDI- " ATELY AND FROM HKNCKFORTH under the power and command of " the said (loveriior and Omipany. " * * 21. Tiiough this cliiim of a wider jurisdiction is not likely to l)c directly carried into effect, inasmuch as the lieails of such districts, as lie lieyoiid the Portage, can iiardly be expected to assume the ]>reliniinary responsibility of sending offenders to be tried by this (V)urt ; yet the (juestion may l)e raised, and ought as soon as possible to be raised before the tribunals of the neigh- bouring province ; and every denizen of this vast wilderness of a world has a personal interest in releasing every part of the same from a jurisdiction so absurdly and inconveniently remote as to inflict inevitably on the witnesses Tiiore grievous punishment than what perhaps the criminal himself may de- serve. 22. Having thus considered our rule of decision, and the geographical range of our jurisdiction, I shall now endeavour to ascertain, who may be parties to any suit or action. On this ])oint, the passage of the Charter which I have quoted speaks merely of defenej)aiately and distinctly from that of parties to a criminal proseoi- tion. 23. In a civil suit, no individiuil, whether a settler or a savage, whether a foreigner or a subject, is jiersonally discjualified, as such, for lesorting to this Court as a plaintitF ; excepting that he never can recover judgment for the specific rostitntion of lands or houses situated beytmd the limits of our judicial district. Even if lying witiiin any otlier district of Rupert's Land, such property is not in our powei' ; and if lying in any other i-fmntry, it is not I WESTERN LAW TIMES. 29 3r appe irs to u. ;}, oh. i:w, elves heyonil , there really mtl tlie 1 autl t perluipa be ority a{)pears it which luia •oin the char- > prospective- whole of tlie lier possessed itications, far- trade art', or l)e IMMEDl- 1 coiuiiiand of ;o he directly e beyond the iponsibility of lay be raised, of the iieigh- a world has a jurisdiction so [the witnesses iself may de- geographical who may be Charter which that, accord - jMjrson may ntor or of a provision of to be such as non law, as is To offer one ])ai'ties to a ninal prosecu- rage, whetlicr I'esorting to judgment for limits of our ipert's Land, ntry, it is not liable even to be regulated by laws identical with our own. I need hardly state tlie obvious exception, tiiat the plaintiff, if his claim does not exceed five pounds, can take any defendant, who may reside within four miles of either river, only before tiie inferior Court of such defendant's own section of tiio settlement, as distinguished even from tlie municipal district. •24. Again, in a civil suit, no individual can l)e constrained to stand be- fore tliis ("(Hirt in the charactei' of defendant, unless he has been regularly sunnnoiied witliin tiie limits of the judicial district, eitlier by receiving the summons himself, or by having the same left for iiim with a grown person at his ordinary dwelling. In tiie case, liowever, of an Indian, ids liai)ility to ap- pear and answer as a defendant is necessarily subject to .some important qualifications. If tlie plaintiff claim a debt undei- a contract, he incurs a con- sideral)le risk of being defeated liy the iniierent illegality of tiie transactif)n ; and even where the tran.saction may not be vitiated by tlie violation of our fundamental law, every tribunal is, in justice and humanity, bound to give to a defendant, wiio is l)y ef)mparison a child for life, tlie same exemption as if lie really were a minor, -an exemption from the operation of every bargain * that is not solidly advantageous to himself ; or, in otiier words, an exemption from tlie payment of everytiiing ))ut really neces.sary su|)plies, furnished at reasonable rates. If, again, tlie plaintiff claim, not a delit under a contract, but damages for a wrong, tlie liability of an Indian defendant, must, in my opinion, be regulated by the same principles in a civil suit as in a criminal prosecution ; the two things, however different in api)earance, l)eiiig intimate- ly connected together in reality. If a wrong does not amount to a crime at all, then, of course, it can be the subject only of a civil suit but not of a crhninal prosecution ; but if it does amount to a crime, then it may be the subject of eitlier or of botli ; excepting that, where the crime exceeds a mis- demeanor, the civil suit, in order to prevent composition of felony, must not lie begun till the criminal prosecution be closed. T! -'gh with respect to the higher class of (^rimos, this law is, jiracticiilly, almost inoperative at home, where a conviction of felony ruins all whom it does not banish or y us as Indians ; and it is on this .same principle that, in the neighboring country, they sonietimea, if not always, enjoy the poor privilege of sharing in tiie pittance doled (tut to tiieir tribe, wlien it is driven from the I m WESTERN LAW TIME8. 31 jurisdiction own judioial lor case, we of the accus- witliout his jury nor the the resident at we cannot ipert's Land ; ^ be reijuired f an offender other part of on our alle- der to he con- r against the cntitle.ntial blessing being this, tliat it places the aibninistra- tion of justice aliove the very suspicion of partiality. In so limited a society, where every individual is so closely beset by the personal ties of blood or of marriii;.,'e or (/f intimacy, one and the same set of judges, howevei npcightly and indt^pendently we might act could not expiict uniformly to convince the unsuccessful parties of our independence and uprightness in the weighing of i?vi(lcn(.'e, the deterniiiiing of facts, and the estimating of damages ; more par- ticularly as we should not be bound, like a jury, to arrive at an unanimous decision, and might thus by the diversity of our own opinions, foster, or even elicit, the dissatisfaction of the loser. Ijiit from such surmises and uncertain- ties the verdict of a jury is, as etl'ectually as possibk', exempted. /'Vr.v^, the proper officer does his best to bring together only such men as he believes to be wholly unprejudice, yet the distinctif)n betv.'een them, as just now stated, cleai'ly involves the necessity, that the bench shall aildre.ss the jury with one collective and harmonious voice. Now, a number of unprofes- sional men, however acute in intellect or cordial in feeling, could hardly ex- pect, in the unavoidable absence of any common principles of knowledge and belief, to arrive within any reasorable time, at so desirable a result ; having tirst to disentangle the law, to be declared by themselves, from the facts, to be ascertained by the jui-y ; and tlien to point out which of the facts ought to bear on the verdict, as distinguished ivom the damages, and which of them on the damages, as distinguished from the verdict. If such a co-operation had l)C(!n attempted, its inevitable, though unintentional, ett'ect \vould have been the mutual eiici'oachments of the two bodies, the bench usurping the func- tions of the jury, anil the jury usurpirig the functions of the bench. Thus would one of the two have been wor.se than superfluous, for each would, in a great measure, have relieved the othei' from the sense of riisponsibility ; so that, at last, the abolishing of juries, at least in civil cases, would have been liailed as a remedy ; bad, indeed, in itself, but not so bad as the disease. l>ut, gentlemen, let me not be misunderstood. Your excellent governoi- and magis- trates, however imjiossible it might have been for them alone to give to the settlement the full lienetit of the noblest birth-right of British colonists, Trial by .Jury, {lerform an iiivalualile servii'e to the cause of justice and order as the Cf)llefigues of a professional stranger, who, in the absence of legal practi- tionei's and of a public piess, ought to feel, and even to covet, the vigilant :ii \VK^^TEU^• LAW TI.MKS. Miipi'i'vi.Hion of tliit.si' \\ III) lilt.' Ix'Ht tittt'il to ii|i|ii't'('iiitt' ami protcot your |>riv- ilU' illlil pilhlic I'i^'llt.s. 32. 'I'liiis, gi-ntlt'iiu'ii of the gnuiil jury, it i.s, tlirougli tlif iiitroiluctioii of law, sti'ictly Moiallfd, tliat yuiu'.si'lst\s aiitl your fclhtw riti/i'iis liavi! Ikhmi raJHt'd to liiHjoiiif, ill tin: iiin«t iiiiportaiit of all r«;H|H;ctH, tlie ailiitfix (»f your own ilfstiiiif.s ; ami it is througli tlu' same ficn gift of tlii^ HoiiorabU; Com- paiiy, that you enjoy the only true freedom, the privilege of lieing go\eiiie(l not l»y the wavering wills of living nieii, hut hy the intle.xihle impartiality of general rules written in the lilood ami sweat of the wise and good among your fathers, 'i'hough to nu'ii of information and leHeetioii, sueli as those whom I have now the honor to address, there is nothing new in what I have just stated, yet, I well know, tlu»t very diH'erent opinions are industi'itaisly disseminated among the ignorant and unwary. It is to liea.serihed to the law and to myself, as I am assiu'ed hy an obliging friend, that dehls eannot he collected, and that " rogues " cannot he punished ; my correspondent, so far as I can understand him, referring to the atrietiie.ss of the rules of evidence ; in the face of the authentic fact, that such rules have never stood in the way of substantial justice, whether in civil suits, or in criminal prosecutions. Nor, in this respect is the future likely to belie the past. The c(>m])linieiit of al- lowing " rogues " to escape with impunity, I hardly exjiected to receive from any (piarter ; and as 1 have not deserved it hitherto, so neither do I mean to deserve it hereafter. With regard to the del>ta, which interest my infurniant's sympathy, I need merely say that, if they are just in amount, as well as in principle, they have little to dread from i law, which, within the year, ad- mits the creditor's books in his own favor, to be weighed, as evidence, by the jury, according to the legularity of the entries on both sides of the account. iVA. I'efore leaving the subject of juries, I ought, perhaps, to add that, at home, petty oH'ences are often tried in a summary way by justices of the peace. l{ut this hasty jurisdiction, -ests on grounds which have no place among us ; such as that it has become absolutely necessary through the un- mana^'pable amount of criminal business, ami is rendered comparatively safe oy the inevitable publicity of all the proceedings of even the humblest tri- bunals. Among us a similar jurisdiction would be as pernicious as it would be unnecessary. In the event of a conviction, the coniinunity, if it heard any- thing at all on the subject, would most probaiily hear fifty versions of the charge and half as mar.y of the punishment, without a single syllable as to the actual pr<' »t of criminality : and in the event of an aeiiuittal, the few might coi.oli! ie that there had been a want of evidence and the many might imbibe crude notions as to the impunity of crime ; while neither the many nor the few would be likely to contemplate the <'.haritable alternative f)f the entire falsehood of the accusation. In a word a summary jurisdiction among us would neither vindicate the law by making an example of guilt, nor .satisfy that abstract justice, which is the foundation of all law, by pul)lishing the proofs of innocence. To all these unavoidable results of the w'ant of publicity must be added the more serious, though less certain, evd, that the less pub- lic tribunal would be moi'e likely to crush unpopular innocence or to scrtien popular guilt. WKHTKRN LAW TIMKS. ;]:) y I mean to infoi'iiuint's well as ill ic year, ad- eiiee, liy the le ucuouiit. J add that, ces of the e no place gli tile un- itively safe iililest tii- is it would heard any - ons of the le as to the few might ^iit indiihe ny nor the the entile among us nor satisfy lishing the f publicity e less]>ul)- to screen ; . ^ .'14. In I'i'imiiial prosecutions, tn the coiiHideratioii of which I shall now coidiiu! iiiystdf, the law demands tin- aid of two juries, the grand and the jietty, till! latter consisting of twelve men, and the former containing any numlier not less than twelve and not greater than twciitythree. The petty jury, which tries tlie (piestioii of giilt or innoceuoe in the presence of the ac- cused party, must, as you all know, he unanimous ; for the law humanely permits the steady douht of one juror to operate to the |irisoner's aci|uittal, in tiu' fact! of the opposite belief of his eievi'ii associates. The grand jui'y on the contrary, decides according to the opinion of any twelve, who in a body not excet^ding twenty-three, must always be a majority ; so that it is never re- (piired to be unanimous, unless when twelve only are jiresent. Its special duty, as I have already iiad occasion to hint, is merely to determine whether there be surticient ground for sending any person to be tried before a petty jury. Clearly, therefore, it neither re(juires, nor admits, the presence of the jmi'ty accused ; and as clearly, too, it neither recpiires nor admits any other evid«mcc; than that for the prosecution. To this evideiict! for the prosecution a grand juror cannot in general a])|ily a .-.(mnder test than by asking himself the (juestion, whether he would, if he were ii'liiiiiiuiry vcrilirt of miiiiMLui^littr would iit'iH'ssiirily liir r led to lui un- i|Uiiliticd tic(|uittiil : for thu dii-d, if ii crime iit all, wrm wilful and dtlilierato houiicidc ; and l)y olitainin^' from tlu- ^^rand jury a triu- liill to that cfl'cct, the petty jury wan cnaliled to temper the dictates of law with the ])leadingH of eompassicin, l>y ae(|uittiug the l)«)y of niuider, l>y rt-anon of his yeiuM. Ajjain, in the present eaue, thou^di the pr'lindnary vei'dict in not liahh^ to tho same technieal olijeetion, yet it lia.s jiciliaps not proceeded from so full a coii- sideiation of so important a ehar;^'e as ought to prei;cde the final trial ; and, as a general rule, coroner's jurors, with the mangled, and, perhaps, still warm liody of a fellow-creature liefore them, would he sonu'thing more, or something less, than men, if they did not give way to their imp\d.ses ineom- patihle with patient intjuiry and dispassioiuitu consideration. A coroner's in- (MU'st, howevtir, is an admirnl)le means of collettting evidence on the spot, while th(! corpse is still so\ind, and the facts arc still recent ; and, in this les- poct, the zealous and elo(iuent pastor, who, as I am glad to see, continues to dischai'ge the duties of coroner, is entitled to the warmest thanks of the Couit and the community. ;{(). I have thus, gentlemen of thu grand jury, prejMired you foi' tho special dutiesf)f to-day, at much greater length than I at first intended. The subject gradually grew under my pen, till at last I was induced to tiiink, thatniy lah- oui's might jiossilily have a value hi^yond the iL-ies of the immediate occasion ; and the possiliility of such a result, again prompted me to still fuller di.seussion, ])aiticularly with regaid to such exctiptions and ((ualitications, as unjirofes- sional lieareis could not have lieeii expcctol to hupply for themselves. My address, however, would have been longer, if I had not written it ; anr niaiislauj;li- falls entirely ig not merely iservatioiis. iiianslaughtei'. if committed natter of fact, ir definition of gal definition, s, perhaps tlie leadly ariow, within a deadly distaiu't', and wit it 11 deadly aim. Now, though (Very juror and ('\('i y judge doulitlesH saw ill this action merely a great degree of iHiyish tliiui);litlessiiess, yet the law, at least as a general rule, necessarily inferred iiiaiice. fi iii> so Vdiiiutary and etl'ectiial an application of fatal means to ,i futal end : and nothing saved Iteiirdiu from a verdict of nnifler hut the law's spc cial liinltatiiin of its own general rule to the coiii|>arativ ely mature age oi foiii- tei'ii. Mahce, when it is olivious to the senses, is said to lie express ; lull when it is inferred hy the law it is said to lie implied. Of the former the jury is the judge ; luit the judge of tin- latter is the lieiicli. Now, the law always implies malice, unless the crime lie reduced hy the e\ ideiice to one or other of the two suli-divisio'is of voluntary and involuntary manslaughter, Koinicide is voliiutary mansl.uightcr v\lien it is comniittcd in heat of Mood caused hy a(l(M|Uate |irov(>catioii ; and it is involuntary inaiislaughter when it is committed tlirough accident in the execution of an unlawful act, which does not in it.self amount to felony. In the case of voluntary manslaughter, tiie law extends a reasonalih! i'ldiilgence to human intirinity ; hut, in the case of iiiMiliiiuary maiislaughter, every penal eiiiicimcnt, howevttr in other r(\s- pects, it may appear to he a dead letter, fortifies itself with pitfalls, which its violators may Iind to he more fori.'iidalilc than its diiect and positive .sai'c- tioiis. .'{!(. If, after this exposition, the evidence may leave you still in douht as to the classification cf the homicide which you iin- now to consider, your liettcr course will he to return an indictint-nt of murder, hecause such indict- ment may, under the direction of this ('ourt, he mitigated hy the petty jury into manslaughter, whereas an indictment of manslaughter cannot, in a sim- ilar way, he aggravated into nuir(ler. In fact, wiiere the grand jury indicts for murder and tiie jietty jury convicts of manslaughter, hotli juries may he e(iually correct in their resj)ective decisions : for, as the law presumes all homicide to he murder till the contrary he proved, the |)alliating circum- sti nces are of course often elicited from the prisoner's witnesses, who, as I ha\" already mentioned, can a])pear licfore the petty jury alone. 40. Hut, you, gentlemen of the grand jury, may not return any indict- ment of homicide at all ; or if you do return one, tliu gentlemen of the petty jury may auipiit the prisoner of homicide in its every shape ; and to provide against- either of these contingencies, the profjcr oiKccr has jiiepai'ed such a liill of iiidictinent for a minor offence as will hardly involve any douht or dif- ficulty within your peculiar jirovince. The second hill of : idictmcnt in (|ues- tion is for an attempt to murder ; and I shall add a few ohservations, in order, if possihle, to rendi!!' the law of the case as clear as tlu; facts seem to he cer- tain. Tliough a man cannot be ti ied a second time before a petty jury under a legal charge of which he has once been acipiitted ; yet he may, in etl'cct, be tried twice, or [xissibly ofteiier, under ditrerent legal charges arising from one and the same criminal act. To take homicide as an instance, — if the petty jury could not at once mitigate an indictment of murder into a ver- dict of manslaughter, an acquittal of the former charge might still be follow- ed by a trial for the latter, inasmuch as the homicide, though declared not to have been wilful, might still be criminal ; and in the .s.imc way an ac(iuittal 38 WESTERN LAW TIMES. of homicide still leaves open any chiirge tliiif may l)e founded on the picced- ing scenes of tiie trager and guide. It is customary, however, for tiie Court to ofl'er general hints as to tlieohjei'ts of your superintending care ; and I therefore adil that, in this cajKicity, you possess, for tiie time, tile right of presenting not only actual breaches of the cnminai law, sucii as the selling of Itecr to Indians, hut also all dangerous practices, such as the entrusting of loaded arms to cliildien ; and, fartlier, of examining the macliinery of our penal jurisprudence, such as the gaol and tiie |M>lice, and of reporting how far tiie same may lie working in accordance witli tlie rciiuirenients and necessities of the apjilicalile enactments. Hut, as iiasty opinions are more likely to do harm than good, I deem it expeilieiit to warn you, uiijirepared as you of course are for tlie discharge of new and nuknown funttions, tiiat you ought not to yiehl at all to the unpremeditated impulse of the moment, or to decide any familiar |)oint witiiout the greatest caution and circumspection; and, as a matter of convenient arrangement, I must suggest to you tiu! propriety of returning tiie liill of inefoi-e so intelligent and respectable an audience, were not the beer-dealers unifoiinly dis|)osed to impugn tlie prohi- bition a.s uiiiiuitous ; and, to vindicjite tiie tratlic as innocent, to calumniate the law as well as to vioLite it. 4.">. Now, while giving to the beer-dealers, as I am bound to do, full credit for perfect sincerity, I am ecpuilly bound to tell them, that tiiey havt' mistaken tlieir remedy. If one individual may practically i)refer his own iiotifi'is of justice to tlic clear dictates of law, wiiy may not anotlier do the sanic. Again, if every individual do so, what is tliis but tiie despotism of will over iltity ; the triumph of anarchy over oi-der ; tiie snapping asunder of all tiie bonds tliat hold society togetlier? I'.ut, even in its more certain and im- mediate coiise(iueiices, the liabitual infi'ingement of any law is a \\ ilful fraud on tliose wlio systematically obey it. To attain tlie benetits of .social life and regular government, every individual sacrifices a portion of his natural liberty, not neces.sarily because he himself miglit abuse it, but because others might do at) : for it is an inevitable condition of civil security tiiat the otleiices of knav<>ry lead, in a greater or less dcgi'ee, to tiie coercion of lionesty ; and if otiiers persist in reserving what \\v liimself lias surrenderc , felon, wiiether for money or for money's worth, amounts to the grave misdemeanor of composition of felony— a misdemeanor punishable by discretionary tine and iliscretionaiy I ,5?!- 1£ -4W» WESTERN LAW TIMES. 43 ts moral and I field of hlood, curses on it* I to the eye of 'ateliers ; and dealer, as the ainst his own jerniitting his is own evasive erts a father's )sites of sohri- it was the con- rated state of iatheii youths .ting the wan- er-(lealer sells ow higher and hing his Chris- form, so long ce, is one of m, yet educat- le beer-dealer and domestic be trained up s old, depart to inake tlie still remain ion may be of indulgent w, whicli are nost valuable an who had dealer would ead of legal ['ected by his and motives, ipal regula- •esut by tlie prosecution. irtu-' y out- lan's spoils ; r for money nposition of iscrotionary impi'isfjnment. Nor is this all : the Vjeer-dealer not only thus becomes the sole guardian of some of his own riglits, but also, to a certain extent, pledges his interest as the victim's surety with respect to the rights of other men. If tlie drunkenness were involuntary, and the crime immediate, then, in the eye of the law as well as of reason, the beer-dealer would be the criminal and tlie Indian merely liis instrument ; and if tiie drunkenness were volun- tary and the crime remote, even then, provided the jury were satisfied that drinking and drunkenness were one and the same thing to an Indian, the l)eer(lealer would be liable, in pecuniary damages, for the outrages of the be- ing whom he liad divested of understanding, but not of strengtli ; wliom he had de})rived of the means of seeing the right, but not of tlie means of doing the wrong ; whom he had robl)ed of the capacity to control liimself, but not of the power to injure others. Though the liooks tell me nothing ex- pressly on this subject, yet they unanimously hold that the owner of a vic- ious horse is responsible, in one way or other, for all that the animal may dn through his carelessness or wantonness ; and the beer-dealer, of course, is still more decidedly responsible for the actions of an ii'rational creature, that he has not only let loose to destroy, but deliberately armed with the weapons f)f destruction. iM. To offer, beyond my first intention, a few remarks f)n the suliject of distillation, I am in justice bound to l)egin l)y admitting, that this correlative ortence rests, in a moral view, on very different grounds. The regulation, wliicii the beer-dealer violates, prohibits the intoxicating of Indians with any sul)stance wliatever ; but the regulation wliich tlie distiller violates, iiroliibits merely the manufacturing of a certain species of intoxicating li(juor. But of this comparatively creditrble distinction, the distiller can avaii liimself only when he distills exclusively for domestic consumption ; if he bring his wliiskey into the market, he clearly incurs the risk of indirectly co-operating in the infringement of the more im])ortant regulation. But, under any cir- cumstances, whether he distills for his own family or for the public at large, his offence, in its legal aspect, is more deliberate and audacious than that of the beer-deaiev, inasmuch, as it commences with the very commencement of tha process, and is not necessarily committed under the trying influence of a visible and tangible bribe. Thus far, therefore, the general position of the distiller is not so much superior to tliat of the beer-dealer as is commonly imagined ; and, on a deejier scrutiny, the moral advantage, which, after all, must be restricted to such distillers as do not sell, lias, 1 fear, brought several respectable individuals to the verge of an r)ffence, far more serious than the violation of all our municipal enactnients put togetlier. 5f). Though, in prosecuting a confessedly unpopular traffic, the beer- dealer's only reliance is on tlie difficulty of prf)ving his offence ; yet the dis- tillers, trusting, forsooth, to the iniieient innocence of tiieir forbidden trade, are confidently repr.rted to have combined to resist by force the execution of the law. For many reasons, I cannot believe that men who have such a stake in the country, as all those must have, who have anytliing to distill, can have actually entangled tiiemselves in tlie liighly penal ci'ime of conspiracy, — a ci'iine which is not the less {lunishabie, however it may be meant merely as •' i 44 WESTERN LAW TIMES. an argument for the repeal of the obnoxious hiw. That the rcspectal)le indi- viduals in question may have talked loosely among themselves on the rjubject, I can easily believe : for in this country, as in almost every other, any project that has not better reasons to support it, is always backed, in its own imagin- ation, by some dangerous phanton; or other to alarm and dazxle and convince. But even such talking, if not legally criminal, is at least morally so, as tend- ing, both, directly and indirectly to undermine the foundations of peace and order, — fountlations in whose stability, every permanent resident in the coun- try, however poor and humble, has a deeper interest than myself. If men wish to be free, they must not only obey the law themselves, but must by all lawful means prevent others from disobeying it, — every man's own obedience being the price of that freedom which the obedience of others alone can secure. But to return to the distillers ; selfish discontent is the most cul- pable on the part of those, whose sole grievance it is, that Providence has blessed them with more than man will allow them to destroy, when contrasted with the self-denying cheerfulness of their less fortunate brethren, who, through the happily rare coincidence of a bad hunt and a bad harvest, are now enduring the most severe privations with the most heroic fortitude. 57. If the duty of obeying the law is to bear any proportion to the value of what the law protects, then must such duty be peculiarly binding on the citizens of Red River Settlement. Their lot has been cast in a land, in which in- dustry is more independent tlian in any other of the accidents of fortune ; and in which idleness is in a great measure, exempted from the miseries, and placed above the temptations of less favoured climes ; in which the savings of economy, when prudently employed in trade, yield almost unexampled re- turns ; and in which even want, when it does come, is not aggravated by those artificial feelings, which elsewhere embitter the evils of poverty through tlie shame of disclosing them. Such of you as occasionally road the news- jmpers of the distant world, must see for how much you have to be thankful, and of how little you have to complain, possessing nearly all the happiness of civilized life, with the smallest possible alloy of its toils and its cares. In a word, you enjoy, almost as freely as air and water, the blessings for which God's chosen people prayewn obedience ers alone can the most cul- rovidence has lien contrasted 'ethren, who, 1 harvest, are ortitude. 1 to the value inding on the J, in which ui- F fortune ; and miseries, and the savings of exampled re- ggravated by verty tlirough lid the news- be thankful, i happiness of cares. In a ngs for which il obedience ; while, at the ibellious son. I utter tlie words of the Jewish monarch in the proud and grateful spirit of a Britisli subject : " There is no loading into captivity, and no complaining among you. " VVlien I leflect tli.it, tlirough tlie pious bounty of Europe, you are peacefully basking in the beams of a far brighter diapensiition than th't which the Jews were commanded to purchase with their labour, and obliged to ilcfeiid with their lives, I echo witli tenfold force the closing summary of tlic royal psalmist : " Happy are the people that arc in such a case ; yea, lilessed arc the people tliat have tiie Lord for their God." 1 wedded life lis under her i plants, and ride between ay again ex- 1 your sheep en I observe lis and again y still ejacu- f." When I •f our lands,