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Les diagrammes suivants illustrent la m6thode. / errata !d to It ie pelure, gon d 1 2 3 32X 1 2 3 4 5 6 *^' *3, * T 1^ '■ -,:.^; .„, 1* ''Ty''. ^,j'i' r ■t ' ■ A S' ^>«- - v" J^' / •« >■■} ■» «r Captain Majo ofju and t Marc Juftic Chari Mr. ' ofJD^ ting < to dij Cap. nV *( ,#; /^-4 MiSftMWi'*!'*^^*''"*!**- k.-J|l>iJUj ^ THE T R I O F J\ -L/ DANIEL D IS NET, Efq; Captain of a Company in His Majefty's 44th Regiment of Foot, and Town- Major of the Garrifon of Montreal, at the Seffion of the Supreme- Court of Judicature, holden at Montreal, on Saturday the 28th Day of February, and thence continued by Adjournments to Wednefday the nth Day of March, 1767, before the Honourable William Hey, Efqj Chicf- Juftice of the Province of ^ebec, upon an Indi6lment containing two Charges, the one for a Burglary and Felony, in breaking and entering Mr. '^Thomas Walkers Houfe, at Montreal, on the Night of the 6th Day oi December, in the Year 1764, with an Intention to murder the faid Thomas Walker, the other for felonioufly and of Malice aforethought cut- ting off the Right Ear of the faid Thomas Walker, with Intention thereby to disfigure him, againft the Form of the Statute of 22 and 23 Car, II. Cap. i. in that Cafe made and provided. QUEBEC: Printed by BROWN & GILMORE. M,DCC,LXVII. ■^:- „*• ■|i m c Efq; a lon< faidC deck been diate] princ enfui by re Natu was n inghi mina] ^.■ larly Page mitte Mr./ vince at Mo Day ( the S whicli theSt Jury ; and 0] and a }l r Ill «to ^_ INTRODUCTION. CAPTAIN Disney, with five other Gentlemen, refiding in the D'*^v;n6l of Montreal^ had been taken up in the Month of iVox'^-w/'f?;-, 1766, for the Cruel Allauit committed, about two Years ago, upon Mr. Thomas Walker. They were apprehended by Virtue of Warrants of the Honorable William Hey, Efq-, his Majefty's Chief- Juftice of the Province of Sluebec, which were tV;unded upon a long, minute, and pofitive Information given againll them, upon Oath, before tlis faid Chief-Juftice, by George M-Govock^ a Soldier of the 28th Regiment of Foot, who declared himfelf to have been an Accomplice with them in that Affair, and to ha\'e been an Eye-witnefs of all the Proceedings in it. The Perlbns fo apprehended iniiiK*- diately Cd.mt xo ^lebec^ and applied to the Chief- JulVice to be bailed-, and many of the principal Perfons in the Province offered to become bound for their Appearance, at the enfuing Seflion of the Supreme Court, at MontreaU i» order to take their Trials. Bur, by reafon of the Magnitude of the Crime, (it being a Capital Offence, of a very odious Nature) and the Politivenefs of the Charo;e a'yainft them, the Chief-Juftice thoua;ht he was not at Liberty, confiftently with the Rules of I-aw, to admit them to Bail; ground- ing his Opinion herein, both on the general Principles of the Law relating to Bail in cri- minal Cafes, and on Ibme very ftrong modern Authorities on this Subjed, and particu- larly the two Cales of A^on and Greenwood^ reported in Sir 'John Strange\ Reports, Page 851 and 1 1 38, which feem to be decifive in the Point. They were therefore com- mitted to Cullody, but confined in the eafieft and moft indulgent Manner poflible in Mr. William Grant\ Houfc, at Montreal, wiiich is faid to be the beft Houfe in the Pro- vince-, it having been fuggefted, as a Ground for this Indulgence, that the King's Priibn at Montreal wa,s in bad Repair, and not in a fit Condition to receive them. On the 28111 Day of the Ff/rw^rv following, in the Year 1767, the Chief-Juftice held a Seflion of the Supreme-Court of Judicature at Montreal^ both for criminal and civil Matters, which was continued by feveral Adjournments to the Middle of Af^- 5' The whole Record of this Proceeding from the Bill of Indictment to the Acquittal and Difchargc of the Prilbner, inclufivcly, is as follows: Province of") T) EIT REMEMBERED, T/^t at the SrJ/iou of the Supreme-Court cf OIJFRFC (r f ■■ Judicature of the fu'icl Province of (^xehcc, holden ^/Montreal, in the ^^ * • J J—^ Province nf or efaid, on the Twenty-eighth Day of Ychiu^ry^ in the Seventh Tear of the Reign of our Sovereign Lard George the Thirds o/"Grcat- Britain, and the Territories there- unto belonging, KlNGi Defender of the Faith, and fo forth, befor,; the HrAicurahlc Wii.LlAM Hey, Efquire, Chief-fujlice of the faid Province, afjigned by Letters Patent of our f aid Sovereign Lord the King, under the Publiek Seal of the jaid Province, to inquire by the Oaths of honeji and laivful Men of the faid Province, and by other laui fid IVoys, ofcdlTreafons, Mifprifions ofTreafon, Murders, Felonies, Burg- laries, Trefpafjes, and other Mifdetneanours whntfoever covunitted within the faid Province, and the faid Tre'ifons, Felonies, Burglaries, and other the Premiffcs, to hear and deter/nine according to the Laius and Cujloms of that Part of the Kingdom o/" Great-Britain f^/Av/ England, and the Ordinances of the faid Province, and to deliver the Goals of the faid Province of the Prifoners therein being, and to inquire by the Oaths of honcjl and lawful Men of the Province aforefaid, and by other Unvful IVays, of all Civil Pleas ^ Anions, and Suits, as well real and perfonal as mixed, between our faid Sovereign Lord the King and any of his Suhje^s, or between Party and Party and the faid Pleas, A /"t ions, and Suits, to hear and deter- mine, according to the Laws and Cujloms of that Part of the Kingdom oy Great-Britain tY//A-he f/" Quebec, Efquire, Captain in the Forty fourth Reghnoit of Foot, on the fxth Day of DvuCiwW'v, ju :he'ffth Tear of the Reign cf our Sovereign Lord G¥.OKG\L the Third, by the Grace of God, of (jieat-Britain, and the lerrllorles thereunto belonging. King, Defender of the Faith, and fo forth. Be- tween the Hours of Eight and Nine of the Night of the fame Day, with Force and Arms, at the Toivn c/'Montreal, in the Dlflrlil <;/ Montreal, in the Province aforefaid, the iJ-ueUlng-houfe ^Thomas \Valker, Efquire, thoef.tuaie, with divers other evil ?nlndcdPcrfons, did, f lord ovfiy and bur glarloufy, break and enter, with an Intent felonloufy and of Malice a-fore-tlmight, him the /.^/WThomas Walker, thai and there being, to kiV and murder agalnji the Peace of our faid Lord the King, his Crown and Digni- ty: And the Jurors afore faid, upon their Oath aforefaid, Dn further prefent. That thefald Dankl Difney, on the faid Jixth Day of Deccmhcr, in the Tear eforej -i, at the TciunofMontYQ-AX aforefaid, in the DiJlrlSi aforefaid, did, with divers others evil minded P'fotis, with Force and Arms, flonioufy and cf Malice a-fore-thought, and by lying in IVait, make an A fault upon the faid Thomas Walker, in the upon the ProvoJl-MarJl}al, of the Province aforefaid, was com7nanded that he have the Bodv cf the- faid Daniel Difney, then being in the Cuftody of tfie faid Provo/l-Mar/hal, for the Offence aforefa'id, by Virtue cf a artoln Warrant to the fid Provojl- Marj%al dircHed in that Behedf, by the aforefaid Chief-Ju/llce of the faid Province, leforchim the faid Chicf-Jujlice rf the Province, "a;^ Wednefday i^/^t- eleventh Day cf March , at the faid Court of Oyer and Terminer and General-goal- delivery, held by him the faid Chief \ >1 Jujiiee^ at the Counhoufe at Montreal aforifatd^ in the DiJiriSi of M.or\ittd\ aforefaidy in the Province afirefaid, on the Twenty-eighth Day c/* February aforefaidy and continued by Adjournment until the faid eleventh Day of March next after following^ toanfiver concerning the Premijfei'. And on the faid eleventh Day of March, the faid Daniel DiCney was brought to the Bar in his own proper Perfon by the Provoj}- Alarp)al afore fcld^ and being then and there arraigned of the Premlji'a above charged upon him in the lndi<1ment aforefaidy and demanded whether or no he were guilty of the fame^ and how he would acquit himjelf thereof, he filth that he is not guilty of the fame and that he thereof puts himfelf upon his (Country for Good or Evil \ ////<:/ Francis Maseres, Efquire^ who profcuteth for our faid Lord the King in this Behalf y doth the like: JVhereuponthe Provoji-Marjhal aforefaidis commanded to caufe to come forthwith before the Chief- Jujiice aforefaid., twelve good and lawful Men of the Neighbourhood of the Town of Moti - treal aforefaidy in the Diflridl o/' Montreal aforefaidy in the Province aforefaidy and who neither^ i3'c. to recognize ^c. and thereupon ^ homas Cox^ Randlc Meredith, Alexander Patterfon, Foreft Oakes, Jacob Vanderheyden, John Dumoulin, Jonas Defauls, William Wier, iiamuel Holmes, James Morrifon, John Ncagles, and George Young, were by the faid Provofi-Marjhal impannelled for this Purpofe^ and being demanded., come^ and being chofen^ tried^ andfworn^ to fay the Truth concerning the Prem'ifJ'es^ fay upon their Oath, That the faid D:inhl Difney is not guilty of the Premiffes in the In^ ditlment aforefaid charged upon him in Manner and Form^ as the faid D^\\\^\ Difney, for htmfelf above by his plea hath alledged^ and that he did not withdraw himfelf for the fame : And thereupon it is canfidered by the Court here that the faid Daniel Difney, be acquitted of the faid IndiStmentt and go hence without Day, After dS ^S ^tm ^J 33> ^J> mm >M:M m ^ . Provlnc* \il the faid d eleventh e Provo/}' um in the iuld (icfjuit is (jQuntty ing in this forthwith lofMow- ither^ t!fc. A\ Oakes, :s, James nnelled/or concerning in the In- tijelf above I'upon it is It, and go After After the Prifoner had pleaded not guilty to the Indidlment, and the Jurv were duly fworn and charged to try the IH'ue, the Cafe was opened to the Court and Jury by t r a n c i s M a s e r e s, Efq; his Majefty's Attorney-General for the Province of Siuchcc^ (who was the only Perfon of Counfel for the Crown on this Occafion) in iome fuch Manner as hereafter followcth; Aloy it phafe your JIjuouk, and you., Gentlemen of the "fury^ • T T is my Duty, as i rofecutor for the Crown, on the prelcnt Occafion, to I;iy 0]icn to you the \__ Circuinftances of the Crime with which the Prifoner at the Bar Hands charged-, which 1 am pcrfuaded you will look upon as one of tlie molt outrageous Violations of the Public Peace and Order that ever was brought bctoie a Court of Jultice: Nothing Icfs than allaulting a Magif- trate of unblemifhcd Charadler in his own Houfe, in the Night-time, with an Intention to murder himj and this in Revenge for an Aiit done by him as a Magiftratc, in Conjunction with three other Magiftrates of the Province, in Support, as he thougjit, at leaft, of the Laws and Liberties of his Country. ■ If this is an Adion that ought not to be the Subjcdt of a Profecution, furely nothing can del'erve to be fo: And if thofc who are charged with being guilty of it arejult Objedts of the Companion of the Public, I know not what Ott'endcrs can exrite their Indignation. It approaches in a great Degree to the moit dangerous of all civil Crimes, HighTreafon itfelf, as it has an immediate Tendency to over-awe, to check, and even entirely io flop the Proceedings of the Magiftrates of the Province in the Adminillration of Public Juflicej without which our excellent Laws arc but a dead Letter, and our boalted Liberties and Pro- perties an empty Sound : And it was attended with Circumltances of deliberate Malice, Revenge, and Cruelty, that, in the Opinion of all Perfons not deltitute of the Feelings of Humanity, muft make it compleatly odious: To which may be added the lefs important Circiunltance of the cowardly Manner of its Execution, if the employing ten or twelve armed JVIcn to furprife and attack one poor, unfufpedting, unarmed Man, fitting peaceably at Home in the Company of his Wife and Family, can entitle it to that Appellation. * Gentlemen, I am forry toobferve further, that the Perfons who committed this Outrage were Military Men : For furel/ this is an Aggravation of the OfFence. It is in them an Adt of Trea- chery: It is betraying the high and honourable Truft repofed in them by their King and Coun- try, by employing tp the Purpoies of Revenge and Malice thofe Arms which had been put into their Hands for the Protedtion of their Fellow-Subjedts, and the Maintenance of the Public Tranquillity. * Gentlemen, I will now lay before you, in the firft Place, the Occafion that gave rife to tlie Crime with which the Prifoner at the Bar ftands charged, and afterwards the Manner and Cir- cumftances of its Execution and the Share the Prifoner at the Bar took in it. * When the Civil Government was eftablifhed in this Province, in the Year 1764, a Number of Perfons, in the Diftridl of Montreal, were commilTioned by Govcr;ior Murray, to act as Jultices of the Peace for that Diftridt, and new and great Powers of determining Matters of Civil Property, not belonging to thofe Magiftrates in England, were given them by the great Ordinance oi September 17th, of that Year, by which the Courts of Judicature were erected. Among the Perfons fo commiflioned were Mr. Thomas IValkcr, Mr. Dumas St. A^artiv, Mr. Livingston, yir. Knipe, and Mr. ZflwZ'f : Thcfe Gentlemen, as I am informed, all of them adted in their new Office with Honour and Integrity, and gave general S tisfadtion to the People by their diligent Endeavours to promote their Welfare. There was one Abufe in particular which they earneflly laboured to reform, as it was then very generally and very feverely felt by the Inhabitants of Montreal, and theSubjedt of frequent Complaints. This was the OpprefTion ex • ercifed by fome Officers of the Army, under the Colour and Pretence of their Right of billeting Soldiers. The power of appointing Billets was often employed by them to ferve the Purpofes of gratifying their private Difgufts, and of extorting Money from the People. Three or four of the moft drunken and and riotous of the Soldiers would be fent to take up their Quarters at the Houfe of a fubflantial Citizen, that was thought able to pay a good Price for an Exemption. This Wild alarm him, and oblige him to make the humbicii and moll earnsit Intreaties to be * excufed I- / [ I I 8 cxciifcd from rereiving thcni; upon which an Intimation would be given him, that, if he would confcnt to pay Six or Kipiu Dollars a Month in Litu of it, he might bccxiufid, and the Sol- diers with that Money would pro\ idc tlu'inCclvcs other (garters. This the poor Man would readily lubmit to (if he could by any Means raile the Money) rather than fie his Hoiii'e taken up, hift Furniture broken and fpoilt, his Provilions waited, and fometinies his Wife and Daugh- ters infultcd by I'uch boitlcruus and profligate Iiunates : And thus by jiaying the Tax reiiuircd he wouUI obtain his Exemption. They wouKl then go to another Citi/en or two, anil by the like Menaces extort from tlitin the like L'ontributicuis. Tliofe were the Oppreilions which Mr. J'/alrcr and his rellow-Magillrates endeavoured to remove. Mr. Ifalkir^ in particular, drew out a Scheme lor billeting the Soldiers, by which he made it appear, that there was no Ne- cellity that nioie than two Soldiers fliould e\er be quartered in one Houfe, whereas there were leveral Houfes at that Time that were burthened with Hve or fix : So that the Hardfliips the People laboured under in this Refpect were by no Means Evils of NeceHity (in which Cafe they ought patiently to have been fubntitted to) but were mere Abuies of Power, to anfwer thelc jiniller Purpolis. * Ciintlenien, in tlie llcginning of the Month of A^(jww/vr, 1764, a Complaint, that took its Rife from tliis Power of billeting, was brought before Mr, //(v/Xvr, Mr. Livi'i^sfon^ Mr. Dintuis^ and Mr. Lii7iil>t\ the JulHces of the Peace before mentionid, againlt Cajitain lunjamin Cl.uirnoik Pr,y}u\ of the i.Hth Regiment, which provec! the immediate Occallon of Air. Jl(ilktr\s Suffering;.. Captain Jchn Fiafrr^ Pay-Maffcr-Gcneral of the Troops in the Difiriet of AJintnui/., and one of the Piifoners !U)W in CuHody on Account of tliis Affair, had been billcttd by Lieutenant- Colonel C'/'r.y/.'V, the Qiiarter-Maffcr-Cjcneral, on the Houfe of one Mr. ^tv/«//-r, a Firr/ih(Jcn- tienian in Montrral, where he accordingly rcfkleil till the latter Enil of 0//fl/'<7-, or Beginning of Nsiu'ffil'iT, 1764, at which Time he was appointed to an Office by which be became entitled to, or at leall polleiled of, a Moufe at the Public Expence; upon which lu kft his C^iarters at Yiv. Ri\w}>u\ Houfe, and went to II\e in the Houfe lo afiirned him. Mr. Rcaunit, imagining his Kilktwas at an End, immediately invited Mr. Knipr, an Engl':]}) Genileman, who was at that Time in the CommiHion of the Peace, and who occupied the Rooms underneatli thofe poflelied byCaptain l\ajcr^ and had hind thofe likcwife of Mr. Riahmr, at th( 'I'imc that Captain /;Y//i^r was about to leave them, but had i;ot )-et taken poflefTioii of them, to come and take J-'ofleflion of ihtm nccc^rditig to his Af;recnient. But he was prcventeil from doiuii fo by Captain Ptiync, who tfxjk Poilefiion {>f tlurn in the Name ;:iul Right of Capt.iin Friifn\ who infilled that he Itill re- t;iincd a Right to thefe Cin;utcr;;, .nrid might either occui)y them himfelf", if he lo thought fit, or permit any other Perfon lo occupy them in h's Name. Mr. Reaumc defiled Captain Payne to refign thrnt to Mr. Kn'ipe^ to v/hom he had let them; but Captain Payne refufed to quit them, and infilled upon his Right to continue in them by Virtue of Captain Vrafrf. Billet. Mr. Knipe thought theff; PretcnT-ons of Captain Frnfcr^ to occupy thefe Quarters thus by Deputy, to be both hard r.iid illcca!, imd wrote two or three Letters to him to complain of them: But, inflead of icv'f'i.'iriL; anv kind of Satisf.iition, he was anfwered in a Stile of incredible and unfufl'crable Infolence. V'pon this he njiplied to the other Juflice^ for Redrefs; and Mr. i./'y/«^i/5W, Mr. 7)w;«c7,f, and Wx.lValkcr, held a Court in Mr. i^t\/w;w's Houfe, to inqulie into the Affair; and being fatislled by the Depofitions of Mr. Kn'ipe and Mr. Rcmwu, that A4r. Kn'ipe had, by a fair Agreemtnt, hind the A, .utmciits in Qiicffion of Mr. Riaume, long before Captain Payne came into them, and being of Opinion likewife that Captain Frafirs Right to tjiein was at an End the Moment he bt rame polfiffcd at the Public Expence of another Lodging, which he thought a better one, fhev detrrniinid that Mr. Knipehixd a legal Right to the Apartments, and that Ca])- tnin P<7vr/' ought to refign them to him. And accordingly, in Conjundton with Mr. Lojnhe, a foui'Ji jiifrice of the Peace, they hgned a Warrant to a Bailiff, to command Captain Payfie to quit that Lodtrinr:, In wliat Manner this Command of the Tufticcs was to be enforced, I do not find to be certainly agreed : lliofe who are difpofed to cenfure this Proceeding of the J uftices, fay that there was a Claufe in the Warrant commanding the Bailiff to carry Captain Payne to * Prifon, if he refufed to quit the Lodsin;;'-, *nd fliould make Pvcfiftancc; others ijiform meother- ' Wife: M f he would d the Sol- an would oiilc taken ul Daugli- ■ci|uirc'J he by the lil.e I'liich Mr. liar, drew as no Ne- thcre were tlfliips the I Cal'e tluy i'wcr thelc lat took its Ir. l)ii?>u/iy II Chdinock Siirt'eringii. '/, and one ieutcnant- 'loich Gen- ginning of ■ntitled to, crs at Mr. gining his was at that lie polltlled plain /;v//fr 'ollUfion of "iiYiic, who he iHll re- ught fit, or in Pttyie to quit them, Mr. Knipe puty, to be lut, inftead nifuflcrabie ngsioti^ Mr. \fiair; and I, by a fair Payne came ; at an End I thought a J that Cajj- ". Lowbe, a in Payne to nrccd, I do he Juftices, in Payne to n me other- ' wile: wife: This however fccins to bf certain, th.it It was never their Fntcntion that Captain Paytitf Hiould be iinpriloned. This will appear by the fubltquent I'art of their Condutit. ♦ Gcnricmcn, I will not now nnnutcly inquire how tar thele I'loictdings of the juftices were legal, that is, how far they had Right to inquire into ai\(l determine ihis Conteft between Mr. Knipe and Captain Payne, and t(j enforce their Decifion of it (if they did fo enforce it) by th'; Penalty of Imprifonment. Butl will only obferve that there feems to be a very rcafonable Ground for fuppofing that all thefe 'i'hings weie within their Jurildidtion, by Virtue of the I'owers before- mentioned, given by the great Ordinance of iSV/)/t7«Z'rr 17, 1764, by which they introduced into this * Province, at one Stioke, the whole Syftem of (he La\vs ot' England tiien in Force, and confe- ' qucntly amongft the re't this excellent At^l of Parliament. That Ordinance inflitutes the pre- ' fei'tt Court of KMig's-oencli, or Supreme Court of ] iidicnture, in which we rtrc now afiembled, ' and ordains that the Chief-Juftice of the Province, v/ho pufides in it, fliall hear and determine <■ all \ i i6 all criminal and civil Caufes agreeable to the Laws of England^ which certainly muft mean the Laws of England x\\ci\ in Being. And befidcs, the Chief-Jurtice's Commillion, which you have heard rc:id, runs in the fame Style with this Ordinance, and diredts him to hear and de- termine all Matters that come before him agreeably to the Laws oi England and the Ordinances of this Province hereafter to be made. Either therefore this great Ordinance (upon which all tlie Proceedings of the Courts of Judicature in the Province, both civil anff an Ear is rd Member? tute add the of the Body, ainly by the te from the ' the Word being more ince of fuch is the very and falutary ince, in the e of Cruelty ting him in ofed, at the ght Expref- the King's 1 Reflection an of all the Perpetrators le like Kind nt. And it Parliament, t it was that and difpofed d repeatedly ifteandMil- .liniftcr, the Exile, had enters, had for fecuring ft eftablifhed ' pallive '7 paffive Obedience by a Law. Yet even this compliant Parliament thought )^is a ncceflary Law fo neceflary as to infift upon the paffing it in Oppofition to the Wifhes of the Court. And ever fmce that Time it has met with the univerfal Approbation of all the EngUjh Nation, and has received fo much Countenance from the Judges, and beci\ deemed fo highly remedial and beneficial to the Subjcdl:, that in the only two Cai'cs that have happened upon it (one of which happened about a Year and a Half ago, and the other was the well known Cife q{ Cook and Woodburn) it has met with a large and liberal Conftruction. This I am furc of, that nei- ther of thofe Cafes comes fo clearly within the Spirit and Meaning of the C'/vcvtry-Ac.} as the Cafe now before you docs, which feems indeed to be the very Sort of Outrage tluit Act was defigned to guard againft: And it feems likewifc to come within the Letter of it by giving the Word yl/cw/'t?- ufed in the Statute that, I will not fav, liberal, but tiatural Interpretation that has been already mentioned. But thefe Confiderations will, as I apprehend, become of little Conlequence by the ftrong Proofs by which, I doubt tir t, you will be convinced that at the Time of committing the Aflault the Ruffians who conimiitLd it had an Ijitention to murder Mr. JValker. I will now, Gentlemen, call the WitnefTes for the Crown in Support of this Indict- ment, without trefpafling any longer on your Patience. WITNESSES for the CROWN. Thomas Walker, lLfq\ ON the fixth Day of Deicjnbtr, about Half after Eight or near Nine of the Clock Mrs. //^W^rluoked at her Watch, and in about fifteen Minutes after were called ovX to Supper; as we v/ere fitting at Supper, I with my Back to the Street Daor, heard a Noife at the Latch like fomcbody wanting to come in in a flurry, on which Mrs. lValka\ being at the Head of the Table, faid, entrez; the outward Door was throv/n open, and through the inner Glafs Doer I favv a great Number of People difguifed, their Heads appeared cne above ano- ther as they ftood on the Steps (fuch as thofe in Court, pointing to a Number of People) They fi-ere difguifed many different Ways, fome of them little round Hats, others black Peaces, others with Crapes, and one with a Tuck of the Hair over the Cap and tiiin'd in at Topj they burft the inner Door coming in, and broke the GLifs, forcing the Ijchs of the Door; 1 turned my Head round on Mrs. IFalhr's faying, GW/ Gi.'/, w/mt's tbis, This is Aluyder! I took fo much Notice of two Faces that were black'd that I fhould know them if I was to fee them again; but they were not any of thofe Gentle- men in Cuftody; have the Idea of them .ts of a Face drawn with a Pencil; had a dillinct Viev/ of them. Many of them furrounded as if they would cut off the Comnninicatlou of the Par- E lour. On turning round. I received a Strok.* oji my ILad. At that Time 1 could not tell whether it v/as a Broad Sword or Bludgeor. W"hen I had received this Stroke 1 rofe up an i palled through them to get into the Parlour, iit order to pafs through it into my Bed-Roon\ where my Sword and Piflols were, in order i > make fome Defcnic. I then recei\ed many Blows (but cannot tell how many) F. :iin-;' through the Parlour Door, they following me in fuch a Huny, burlt open the Standing-door (they were Folding-doors) being lb many of them. Coming to the further End of the Room,, and ftriving to get into m.y Bed- Room, two Men i^ood at the Chamber Door, and fore- cloijng me, prevented my opening it; beat n;o fo much, and with fuch a Number of StroLer. They cloied me round with a Curtain, which I fuppofe prevented their Dafhing my Brains out. Was fome Time in the Corner, but how- many Blows I received there cannot tell. But there was Fifty- two Contufions or Bruifes. I was fwelled from the Shoulders to the Fingeis End, there was not a free Part all o\;er my Bod ■'. I received a Wound on my Leg, but don t know when. Whilil: in the Corner I had i.j Remembrance of being off my Feet; but fi-eij' ; the Marks of my bloody Head againft the W...I Imagine I had loft my Senks; but lenien.bLT hearing a Perfon fa}', It me icrie to. '.!.•/:, I ivi.L d'fpJtJ} n IS difpntch the F'llliiin with my Sword; this was the firlt Thing 1 hard; and that roufed me, and then was determined to i'cll my Life as dear as poilible. Having feen Major Difney^ not know- ing that I had ever difobliged him, I expected Lite, till 1 heard thofe Words. Major Dej'ney had a Crape on his Face, and I difcovered his Face through the Crape. Believe by the Fi- gure that it was hethat made ufe of thole Words, h iving feen him in the Room before I received fo many Blows, but I cannot fay pofitively that I knew his Voice, and do rot recollect particu- larly what Drefs he was in. Before I received any Blows, or any Thing in the outward Room, I was fully convinced that was Major D'tfney. A Perfon made at me and I parryed the Blow with my left Hand and ftruck at him. At the Inltant the Words were pronounced two or three People came up to me with Swords le- velled, but do not know whether any Body made a Pafs at me or not; but upon my taking Courage they retreated back: My Eyes were then full of Blood. They then clofed; one collared me; I feized and held him, till another took me by the right Thigh, and ftrove to lift me and fet me on the Fire, I then turned my- felf round, fetting my Hands againft the Chim- ney (the Marks of my five bloody Fingers are on the Jambs of the Chimney) and tore the ijide of my Shoe with the Force, and in turn- ing rCI'Ud I received a Stroke (which the Doctor faid was that of A Tomahawk) which fell me to the Ground, fenfelefs, how long I laid there cannot tell. The firft Remembrance after that Stroke, was a fevere Blow on my Loins, whe- ther by a Tomahawke or Bludgeon I do not know, but feel it to this Day in bad Weather. After that Blow a Man kneel'd, or fat, on my right Side, and I felt as if he was attempting to cut my Throat; I then moved my Head and Shoulders and put my Hand up, thinking it was his Thumb, but found a fliarp Tnftrument. And he cut the little Finger of my left Hand to the Bone; and it was a Fortnight before I knew that I had loft my Ear. I thought they had aimed to cut my Throat, and thought (at the Time} they had done it. After receiving that Wound I heard a Voice from one of thofe Peo- ple prefent fay, the Villain s dead; another faid, dam7i him, we have done for him. A third Per- fon fpoke, but I could not rightly underftand what he faid, but heard fome Words; then having loft my Senfes can give no further Ac- count; but when I did recolle£l found myfelf in the Arms of Willitim F$ntaitie my Servant, and one Mr. Piftolet. The bloody Clothes^ Shirt, and the Ear in Spi- rits, were then brought into Court and expofed. CROSS EXAMINATION. Council for the Prifoner. Morrifon. 9. Who was at Table? Jf^alker. A. Mrs. IValker at the Head, Mifs Hurdt now Mrs. Wade, and my Clerk. fDid you fee Major Difucy enter? Yes. fWhat Part or when did he enter? I don't know cxaiitly. J^. Did you get up when they entered.' J. Yes. ^. Did you look at the People in getting up ? -/^. I had looked before. ^. Do you know whether Major Difney ftruck ? A. I don't know. He knows beft. J^. How came you to know him? J. By looking at him. A Crape was then produced, and Mr. Walker put it on his Face. .^. After you had received the Blow what became of Mrs. Walker} A. Let them anfwer. j^. Why could you not tell what became of them, did you not fpeak to your Wife, or any other Perfon? A. No. ^ Did not your Clerk or any other Perfon aflift you! A. No. .^. Did not you think to proted your Wife? A. No. ^. Then you was flopped at the Corner by three or more, and they kept you for fome Time, you don't know what Time? A. I don't know. ^. There was two of the Figures you -cj^oufJ know? A. Yes. ^. Kad you never any Opportunity of feeing them ? A. No, and perhaps may never fee them again here. ^ Pray did you fee Major Difney in that Room, did he offer to ftrike? A. No. Unlefs it was him that advanced with his Sword, On feeing that I jumped and parryed it, my Eyes being at that Time full of Blood. 1^, What were the others doing? A. They md myfelf |r Servant, ^ar In Spi- expofcd. ilbn. iifs Hurd, er? Iter? tered ? getting up ? ijor Difney \. Ir. Walker Blow what became of ife, or any Mo. ther Pcrfon >fo. our Wife? Corner by )u for fome yotl Woufd fes. ty of feeing r fee them hey in that t advanced jumped and "ime full of A, They A. They were all ftriking. The firft Thing I recoUcft were thofe Words which reanimated me. the J. 6) Cannot you guefs how long you was in orner ? No I cannot fay; I loft my Senfes. But cannot you tell how long you was in the Corner without your Senfes j me thinks it is very odd? J. Had you received the fame Number of Blows that I did you would not have been very bright I believe. ^j You heard the Prifoner fay, let me come to him and I will dijpatch him ? A. I believe that to be Major Difney^ but am not fure. .0. You faid thofe Words were fpoke before the Sword was pointed? A. I heard them. It was fuch a Figure as Major Difney; but my Eyes were full of Blood. j^. Do you know who fpoke thofe Words ? A. I do not know who fpoke thofe Words, but heard the Voice from that Part of the Room, imagining it to be a Perfon that was diredting. ^. You faid it was about three Minutest' A. I do not afcertain the Time. ^ Do you remember the Perfon that gave you the Blow on your Loins? A. I do not, ^. Did Major Difney give any Blows? A. There were enough to do that Work be- fides Major Difney^ and fitter for the Purpofe. .^. After the Struggling by the Fire I think you faid you heard a Voice fay, damn him^ we have done for him-y do you think that was Major Difney? A. No. i^. There was a third Perfon, what did he fay? A. Do not know. I believe I then loft my Senfes. J^. You recovered next Morning a little, did you recolledl any Thing about Major Difney? A. Yes I recolle<5^ed Major Difney very well. J^. Did you mention Major Difney? A. No I don't recolledl I did. ^ You put the Sword by with your Hand ? A, I parryed it. ^ After you parryed the Sword what be- came of him ? A. I ftruck at him and he retreated. ^. You ftruck him ? A. Afk him, he knows if I ftruck him. Major Difney anfwered, No Sir you did not > 19 Major Difwy alkcd. ^. Did you particularize any Perfon next Morning? A. I did not know any other Perfon. ^. But whether next Morning did you par- ticularize him or any other Perfon? A. Yes! I recollcdted one that looked like Lieutenant Hamilton, and a little Man like Lieutenant Graham, but did not mention it to any Perfon but to Mrs. Walker and a Friend, The Court then put: ^. If Mr. Walker was acquainted with M-\- jor Difney? A. Yes, he ufed to vifit at my Houfe, and I ufed to be on Terms of Friendship, was very well acquainted with him, particularly on my firft Tour to Canada^ he being one of Mr. Gage's Family. Council. ^ When you faw Major Difney Hrft it was furprizing you could not tell his Drefs ? A: I could not. ^. Had he any Thing at all on his Head, or in what Manner was the Crape faftened ? A. 1 do not know, but think he had a Hat on. The Council for the Crown then thought proper to call fome Evidences, to prove that the Fail was really committed, fearing the Length of Time might have irradicated fo bafe an Action out of tlis- Minds of the Public, aaf' they rather feemed to ftifle and make it appear as an unpopular Profecution, i^c. isfc. ijf. Mr, Boone, Evidence for the Croivn. Having been at Major Ivolbrunsy a Tavern on the Parade, I met a Parcel of Men running, amongft which was a Mufician; I afked him what was the Matter, the Mufician anfwered, Mr. Walker was murthered: I then went, to Walbruns znA told it, and then went, to Mr. JValkers, with other Company. I thought his Wounds very bad: I did not think him likely to live; faw his Wound on the Ear and Cheek very bad, and thought that the Wind Pipe was really cufr. The Doftor thought it was dange- rous. Being afked on what Account? Anfwered, He did not know; but the Dodtor thought it dangerous, and the one on the Crown of the Head he thought was moft dangerous. ^ With what Inftrument do you think the Wound was done? A. I thought it muft have been with a Broad Sword. ^ Did you think they were all done with a Broad Sword ? A, They 1! so J, They were to the bcrt of my Knowlege. .^. What length did you think? J. Some appeared to be about three Inches and an Half", en: very deep. i^; Did )'>u meet any People in the Street runnina: away dirgiiil'ed? //. Coining out ot' Ifdl/run^ I fiiw fome People running very fad; but diii not fee whe- ther they were dilguifcd. They were running from iMr. // towards the Parade. ^y. Do yon know any 'I'hinu; further of that I>uline)sr .V. No. J-^. Did you ever hear any Pcrfon, or Major Di/'/.y, confefs any Thing previous to that Affair? ' J. No. Cross Examination. .9. You went in with fomc otlier Gentlemen and faw him fitting in a Chair; do you recoi- led what Day, Year, iifc. J. I recoiled the Year, not the Day. ^. What Year? //. About t\to Years ago. :^. What Time of theNight? J. About Nine of the Clock. Major Difvcy then afked him, if he had ever heard him fpeak in Mr. JValkers Favour or againft him? A. No, never. Monfr. Piflrolet for the Crown. j^. Did you fee Mr. (Vcilkcr the Night he was attacked, and what Hour? J, Between Eight and Nine o'Clock I henrd a great Noife. Mr. If^alker'f, Servant, after climbing over the Wall, knocked at our Back- Door, the Kitchen. !^. What did you do? A. My Father opened the Door for the Ser- vant, and was much furprifcd at his crying Mr. IVtilkcr was a only f^'^alker was | s I heard (Tins were it laid in ic Perfons Houle. you return r. Lunib at in. ittle Time Blood? ered with lt^alker\ ? with Mr. weltering "ime, but onth and 764. IValker in I faw Mr. you think me in the 3 not re- Nine that 'in. ; out frcm afiinated ? 1 one End Q^ Were Q. Were they difguifcd? A. No, not in the Day, but in the Night. "They had flapt Hats. Q. Were they difguifed in any other Man- ner \ A. They had long Blanket Coats. Q; Did thofe Hat!) feem intended to corcr their Faces? A, Yes. Q; At what Time of the Night did they pnCs r A. About Seven and Eight I'ur two ur three Days. Q^ Whether on the fixth Day of Ducmhn did you fee any Perfons going to or coming from Mr. JValkcr^) A. Yes, about feven o'Clock. Q^ Did you fee any Perlbn about the Time the Affair happened? A. No. Ci: Did you hear any Pcrfoii fpeak about Mr. IValker that Evening? A. No. Cross Examination". Qi At {c\J was in a terrible Situation: I em- braced him, and he fecmcd to know me. (^ About what Time did you come in? A. About three Minutes. I fcnt a Servant to fee whit Situation Mr. Ifalker was in; be- ing impatient met him; he cried, Oh my Mfijier is ci!l m Blood. Q. Can you recoliedt any Perfon that was in the Room ? A. No, not particularly. Q. Can you afcertain the Time from the firfl Entrance of the People to the Time you came into the Parlour to Mr. Walker ? A. No : It might be three or four Minutes. (^ Could it be more ? A. I don't know \ it feemcd very long to me. Q; You obferved the Waiftcoat aivl Breeches, did you obfervc the Manner the Crape was tyed round his Face? A. No. Q. Had he a Hat on ? A. I do not know. Q^ Had he any Thing in his Hand ? A. He had a drawn Sword. Q_j You are fu:e it was drawn ? A. Yes, it glittered. John Lilly, for the Cmvn. -Q. Was you prefent at Mr. JValker''?. Table when the Aifault was made ? A. Yes. Q. What did you obfcrve then, or how ma- ny Men ? A. Five or fix. Q; Did you know any of them by Refem- blance ? A. No, I can't fay that I c^uld. Q^ Did you hear them fay any thing ? A. No. Qi Did you fee any of them ftrike Mr, Walker? A. Yes. Q; With what ? Ar A Bfoad-fword, Qi How many Blows ? A. Oiic. When I faw Mr. Walhr ftruck I went to help him, then being att.icked myfclt" by a Man I drove him on a Trunk, and think- ing Murther intended run out. The Hrft Blow was given with a Broad-fword. Qi What became of you after you pufhcd the Man on the I'runk ? A. After that I received two Blows on my Head. Q; What became of you afterwards ? A. I got out at the Street Door. Q; What did you fee at the Street Door ? A. Five or fix Perfons fhmding at the Door, and live or llx in the Houfc. (^ Their Drefs ? A. B'lnket Coats, cropt Hats and black Faces, their Hats disfigured, that is, thole in the Houfe. As foon as I got out I cried Mur- ther, and one of them cried, fire at hhn^ dont let him ejcape^ and two of them purlucd me, and I faid nothing, but run on, and went to the Foot of the Lane; they immediately returned again, and fo did I, and went to one Mr. Previ/i^ a Cooper, almoft oppolitc Mr. /AV///^fr's Houfe, and defired they would come, and faid I believed that Mr. Walker ■& Family were all murthered : There was Monfr. Prevo/l^ another Perfon, and a Soldier of the 28th Regiment; they would not go, but took me by the Arm and pulled me into the Houfe; they would hardly let me go out again; but I got out, and then faw People coming out from Mr. Walkers, and took them to be the People that committed the Aftair, and obferved them going towardf Mr. Murray s : I followed them, and went into Mr. Alurrays. Q^ When did you go back to Mr. Walker'?,^ A. I was pufhed out of Murray's Houfe hy one M^Killip^ who told me to go away as I kept bad Company; then Murray ipoke to me, and I returned in about ten Minutes toMr. Walker Sy and found him lying on the Floor, about a Foot and Half from the Fire, fpeechlefs. Qi They exhorted each other to fhoot you : Could you guefs at any of them by Size or Shape? A. I was all over Blood. Q. Did you obferve what Kind of Drefs ? A. Some Blanket-coats, others Coats white Sleeves, Faces blackt and cropt Hats. Nobody fpoke within the Houfc except Mr. Walkevy crying Murder. Q; How Q: 1 A. J (^ 1 A. ] Hats: have G A. ' Huddle the hrfl Q, ) rcceivcf A. ^ but wit you im about adtion r A. People. a A. a A. Q. and cnt in theC there ? a^ A. / but do Had yo A. 'ker ftruck IccJ myicU* iiiid think- Hrft Blow ^ou puflicd iws on my Js? t Door ? : ihc Door, and black s, thof'c in cried Mur- ' /;/';//, dont ;;d me, and /ent to the y returned ) one Mr. Ir. milkers :, and i'aid y were all ?/?, another Regiment; )y the Arm icy would ot out, and . IValker'sy committed ng towardf ■\ went into s Houfe by ay as I kept to me, and r.mdkersy bout a Foot {hoot you : by Size or f Drefs ? Coats white No body Ir. IValkery Q. How Q; How long was it from the Time of the Betjinningof the A^Etion to the Time you went to Mr. Fcltzs} (A French Surgeon.) A. About a Ciiiarter of an Hour. Qi In what lime after did Mr. Felt: urive at the Houfe ? A. It was upwards of twenty Minutes be- fore he arrived. Q; How long did ytou take the Atition to have Jafk-d ? A. About {f; at which I run away, and the IvL;n purlued mc into the (jallcry; being pur- fucd fo f.'.ft, 1 threw myfclf through the Rails of the (jal'cry. .1 faw a Strc^ke made with the CuthdV. not Morning, and found 'tiy Coat cut, but do not fay that the Sabre cut it, but tho'ight itto be the farncMan that made a Stroke at me in the Room. Q^ Did you !iear them fay any Thing dur- ing the whole Time ? ' A. No, nut one of them. Cross Examination. Q. You faw Mr. Walker receive feme Blows, and fome aimed at Mr. Lilly : Pray where was Mrs. Walker ? A. Mrs. Walker made her Efcanethrough the Kitchen. Qi Did Mrs. IValkcr quit the Room before you ? A. Yes. Q. How long ? A. I cannot dirc6i:ly tell, 1 went out in a very little Time. Qi Was it one Alinute ? A. I cannot tell. Q; How long was it from the firfl: Tin'.e the Men burll the Street-door to that Time ? A. I cannot hx any Time. Q. Could )ou fix it to a Minute? A. No. Q; How long from the Time you threw yourfelf over the Rails till } ou returned again to your Mailer ? A. About Hve or fix Minutes \ perhaps more or Ids. Qi What Situation did you find Mr. Walker in ? A. Spread before the Fire on a Carpet, ftrctch- ed with his Hands on his Wounds (as defcribed in Court) and had 1 not come he would have been fuH'ocattd in his Blood. Q^ Was there any Body in the Room when you returned i* A. No, all alone. Q. Did you know how long they had been gone before you returned ? A. No, not feeing any of them. Q^ Was Mrs. Walker in the Room before you came in \ A. No. Q. Was you the firft Pcrfon that found your Matter ? A. I was the firft that took him up as he was oji the Carpet. Q^ Cuuld he fpeak ? //. No, He was not in a Situation to fpeak, for he could not fupport hinifelf ; when I let him go he fell down again. Q. Did you fee 3'our Miftrefs come into the Room? A. Yes, a little Time after. Q^ About what Time ? A. 1 cannot fay v/hat 'I'imc. Q^ Was it in two or three Minutes ? yl. I do not know. Q^ What Hour of the Night was it when thcfc People firft came into the Houfe ? A. Between Eight and Ninej I cannot fix the Time. Q^ Was le Blows, inhere was rough the MTi before t in a very Tiir.e the ne ? A. No. ^'ou threw ned again rhaps more /Ir. JValker et, ftrctch- is defcribcd v'ould have oom when nc. y had been ■>om before o. "ound your •) as he was n to fpcak, when I let nc into the iuic after. es ? as it when fe? cannot fix Q. Was Q^ Was not your Mafter at Supper ? A, Yes, juft fet down to Supper. fWas it the ufual Time ? No fixed Time, within a Qiiarter or Half an Hour, fome times fooner or later. ^. You don't know any of thofe People but one? A, No. ^. Did you fee any of the Waiftcoats or Breeches of thefe People ? A. No, they having the Table and Stove be- tween me and them when they came in. ^. What Part of the Room was you in ; by Mafter or Miftrefs ? A, I was on the left Side of my Miftrefs. ^. When Mrs. Walker came in, how did {he behave ? A. Came in crying out aloud. .9. Did {he fpeak to him ? A, Yes, {he fpoke to him, but do not know whether Mr. Walker anfwered or not. 'Jury. ^ Did Mr. /^/(f^rreceiveany Wounds before Mrs. Walker went out I A. He did receive one or more before {he was gone out. Mrs. Wiggans for the Crown. ^ Do you remember the Afl'ault made on Mr. Walker the 6th December , 1764? A. I remember to have heard of it. i£. Do you recoUedt any Perfons difguifed come in to your Houfe about eight o'Clock ? A. Do not. I never heard of it till Mr. Croffon told me of it about eleven or twelve of the Clock at Night. ^ You never heard it mentioned that fuch a Thing was defigned? A. No, never heard a Word of it : Indeed I never did. .^. Did you not fpeak to Mrs. Mees, and advilis her to go and lay the whole Affair open ? A. I did not fee her the next Day. ^ When you did fee her, did you ever fay that you advifed her to go and reveal the whole Affair ? A. I fay I never did fay any fuch Thing. Mrs. Cakfor the Crown. ^. We are informed that you know a great deal of the Affair of Mr. Walker's Affault ? A. Yes, have heard of it. ^. Did you fee any Perfons go into his Houfe or coming from his Houfe ? //. No. ^ Did you hear any Perfons declare that they would take Revenge of Mr. Walker for imaginary Infults before the Affair happened ? *5 A. No ! I am come here to anfwer relative to Mr. Difneyy and no other Perfon. J^. Did you never hear Mr. Dlfney make Ufc of any kxprcflions ? A. No. ^ Do you know Mr. Difney ? A. Yes, like a Child living in Mr. Burton a Family. ^ Did you never hear of any Expreffion made Ufe of againft Mr. Walker!' A. No. George Magavock for the Crown. You are now called upon to give Teftimony on this Occahon: ^ Do you remember that Affault on Mr. Walker i> A. Yes. ^ Was you prefent ? A. Yes. •^; Was Major Difney the Prifoner prefent at it'? A. Yes. ^. Was you a Soldier in the 28th Regiment? A. Yes. ^. Was there any Plan laid to disfigure Mr. Walker ? A. There was. ^. When and where did you firft hear of fuch a Defign ? A. At Lieutenant Tottenham's. ^. How long before the A£tion ? A. About fix or fevcn Days. i£. Did you hear any Thing of it before, and how long? A. About fix or (even Days I fay. .^. But had you heard any Thing of it be- fore that Time ? A. Yes, amongft the Soldiers and Sergeant Mees. .^. What did they fay was intended to be done. A. They had a Mind to cut and disfigure Mr. Walker on Account of his Treatment to Capt. Payne. .'^. When you went to Mr. Tottenham's v/ho took you there ? A. Sergeant Mees. ^ Did he fay there were fome Gentlemen not belonging to the 28th Regiment, and not to be furprifed at feeing them, as they were Friends to the 28th, is'c. for the disfiguring of Mr. Walker? A. Yes, he did. .^. What was the Purpofe of his carrying you to Tottenham's ? A. He knocked at the Door, and Mr. Evans^ Major Dlfney^ and Mr. Tottenhamj came out into the raflage. G Qi Did \ 1i; 1 26 }^ 3. Did they fpeak to you ? ^. \ es. J^. What did they fay, and who fpoke to you ? y/. Mr. Tottenham., who faid there was ibme Gentlemen that I might fee in there. Friends to the 28th, and not to be furprifed, as there was one of the 27th Regiment that would be concerned in disfiguring Mr. IValker. Jp. Did any of them require you to be fecret ? A. Yes, Mr. Tottenham told me I mutt take an Oath not to difcover any of thofe Gentle- men I fhould fee in the Parlour. SI2 Was any Day fixed at that Time ? A, No. ^. Did any Body fwear you ? A\ Yes. i^. Did they make you kifs the Book ? ./. Yes. i^. Who adminiftcred the Oath ? y/. Major D'ljney (looking at the Prifoner) Xl; What was you to keep fecret ? A. Not to be furprifed, or difcover any of thoic Gentlemen that I fhould fee: If I fliould find them dishr^uring Mr. IValker before the 2iS'th Regiment had done it. /^. When yoii had taken this Oath did they iniroduce you into the other Room ? J. Yes. .^^. Did Major Difney go into the Room ? A. Yes. What was the Subject of Converfation ? The chief was cutting Mr. iValker ? In what Manner did they mention it ? A. They faid they might meet him in the Street; but did not mention cutting his Ear. .^. How many Minutes did you ttay with them ? A. Not very long. Q^ Where did you go after ? A. Into Mr. Tottenhatns Kitchen. Q; Did any Thing pafs in Mr. Tottenhatns Kitchen ? A. No. Q^ Where did you go next ? A. To Sergeant Mees's Houfe. Q. Was you ever fent for to Mr. Tottenharns A. No. Q. Was you ever fent for to Mr. Tottenham's before that Time, about that Bufinefs? A. I was there feveral Times. Q. Do you know any Thing of an Attempt made on Tuefday to disfigure Mr. Walker ? A. I knov/ three Men that ftood on the Pa- rade, intending to meet Mr. "Walker going or f again ? coming from his Store, faying, if they could fee him they would lofe their Lives but they would cut or disfigure him. Q; Did you hear them fpeak of that Affair on Tuefday F A. Yes, they faid they had miffed him, but if they could they would meet him next Night. Qi Did any of them go ? A. Yes two of them went next Night. Q. Who were they ? A. Coleman and yames Rogers. Q. Where did they go ? A. To the Street leading to Mr. Walker's below, between that and Mr. Lamb's. Q. How came they to place themfelves there? A. Becaufe they had looked about the Store and could not find him. Qi Did they exped to meet him at Mr. Lamb's ? A. I fuppofc fo. <^ They were only waiting; were they armed ? A. Yes, with Swords, and one a Piftol. Q. What Drelfes ? A. Blanket Coats. Q. Had they any Crapes or any Thing on their Faces ? ' A. No. Q. Did you not fee them on their Stand? A. Yes. Qi At what Time did you fee them ftanding to wait for Mr. Walker P i,^ A. Thomas Donnally and Rofburne^ &c. I am fure there were fix that had their Hands black'd, but do not recolle(5t the reft. Q. In what Manner were thefe People blackt? A. With Grime and Greafe. Court. — Qi If after the Ear was cut off he i'eturned after coming from Captain Payne\ ? A. I did return. Q. What Pofture was Mr. Walker in when you returned ? A. He was lying on the Floor. Q; How long did you ftay after that, and the reft of the People; was it a Minute ? A. Yes it was. Q. What was the Account you gave Cap- tain Payne, &c. ? A. I faid I had ken Rogers take his Ear off. No. No. Hands bl ^9 Q; What Reply did Payne rmkt f A. Go and get the Party oft' as foon as poffi- Qj Did you all go away together ? A. As faft as we could get out. Q. Did Major Difney ftay all the Time ? A. I don't know whe»^hcr Major Dijney ftaid all the While. Qj Was he there when you came in the fnft Time ? A. Yes, I am fure of that. Q. Was he there the fecond Time after your giving an Account F A. I did not take Notice of him at that Time. Q. Before you went out the firft 'J'ime you told me that Mr. IValker had gojie into the Room, and that Mr. IValker had received fevc- ral Blows, and that Mr. JValkcr had received a Blow from a Man with an Iron Bar ? A. Yes, to be fure he did at that Time and after. Q; That you went out after that Affair to tell Captain Payne? A. Yes. Q. Did Mr. IPalker receive any more Blows after receiving the Stroke with the Bar of Iron.'* A. Yes. Court. — Q: Was the Blov/ given by Clark before or after Major Difney advanced with his Sword ? A. Yes, it was before. Q. Ptay how were the People dreffed F A. All drefled in Blanket Coats, only Philip Cajlles, Q. How many Canadian Gowns were there. Did you fee F A. There might be others under their Blan- ket Coats; I took Jio particular Notice of any but Philip Ca/lles. Q^ You did not obferve any others with 6""^?- uadian Gowns but Philip Cajlles F A. No. Q. "What had Major Difney on F A. A long Blanket Coat. Q; You fpoke particularly about Rogers, Coleman, and other black'd Faces, pray was Major Difney's black or white F A. A Crape over -t and Fur Cap. Q. Pray how was it faftened F A. Tucked under his Cap. ^, Q; Did it hang loofe about his Head F »* A. No, pretty clofe to his Skin: I do not fay pofitivelv. H Q: Did ¥■■-' - .«^: go Qj Did you hear him fpeak to any body clfeP A. No, I did not hear him. Jury. — Q; Did you hear one of them fpeak; you named one, who was it ? A. Lieutenant Scott. Q. What did he fay ? A. I know what. Let me come up and I will teach him. Q^ When did that Speech happen ? A. It was before his Ear was cut ofF. Q^ Was it before he received the Blow wu'/. tl'.e Iron Bar or not ? A. Before. t^ Did Mr. Scott advance with his Sword in his Hand ? A. He held it up; it was a Broad-fword. Q^ At the Time that Major Difney advanced how near was you to him ? A. Not above four Feet from him. Q^ Did you hear him make ufe of any Ex- preifions ? A. He might, but I did not hear him. Q^ After the whole Affair was over, and all thcfe were retiring, pray what o'Clock was it ? A. I cannot be exa. ^. There was Rum. Qi Who paid for it ? J. I "-^ int Mtts*B :r you fay \. Yes. i through incc Gate )ther, fomc 'arties that now where y, and an- ey came in the King's a returned ;n ? 1 December^ )ll-calling? efore Roll- ng to Ser- thcn went Clock, 'ime ; an- mc ; I will uarter per- l you go ? and {o to A. No. jant J'/tVf's? )wn ? tell us, nor A. I J. I did not pay for it. (^ Was he diigulKd, was his Face blf.ckt ? A. No, Q^ What Time did you fee Capt. Payne? A. We came out much the fame Time, ajid Capt. Pcyne (iaid oppofite the Houfe of one Bella'ir with a Party. Note. Bel lair' J is oppofite the End of Mr. Walker' J Hcufc. Qj The fecond Time you Avcnt out to give Intelligence, was there any Perfon with them? A. No, not any body. Q. When you crofted the Parade did you meet any body ? A. Yes, oweGrub a Soldier; I did not take any Notice of any Perfon but that Soldier. Q^ Did you fee Capt. Falconer ? A. I did. Q. Who was with him ? A. Lieutenant Keough. (^ Were there any Soldiers with him ? A. I did not fee any. Cii Wliat was he doing there r A. Lookiut'i about as a Guard. Q^ Was he one of the Party, did he know of the Fact ? A. I fuppofe they did. Q. How was he drefted ? A. In Blanket Coats. Q^ How armed ? A. Mr. Keough a Sword and long Stiek, Capt, Falconer a Dagger and Piliol, Q; How did he carry the Piftol ? A. In his Bieafl-, Dagger by his Side, Q^ After you quitted Mr. JValker^ Houfe, going over the^ Parade, did not you run fail ; was you v;alking or running ? A. I was walking at tirft, then I went pretty fmartly, Q; How near were you to Capt. Falconer? A. I Went clofe to him, fury. ) Q; What Waiftcoat had he on ? Oakes ) A. A red one. 'Jury. ) Q. Had he a Stock or Neckcloth ? Oakes ) y/. I do not know. Court. Q; Where did Capt. Payne keep the Guard ? A. At Bellairs. Q^ Did you fee him before you went into Mr. rValker's ? A. He came out with us from Sergeant ^tvj's. Court. Did Capt, Payne come out with you ? A. Yco. Q. Did he take guard there at that Time ? A. Yes he did. 8« Jvry, Qi Where did you carry the Meffhge to p^iyne and Tottenham;' A. Juft at Bellair?. Houfe. Gregory. Q. Why you faid juft now that you carried it to Capt. Payne at Sergeant Mees's, A. No, I did not ; you miilook me. fury. Q; Was Major Dificy one that had hi* Hands blackt. A. No, I did notobferve, Q^ You muft have obfervcd when he came to prefenthis Sword? A. No, I did not. This JVitnefs being difmifjed the Counfel for the Crovjn dtfrcd that Mr. Walker might relate u Circufi'jhince corroborative of Part of Mago\()ck'y Tejiimyny. Thomas Walker, I Drank Tea at Tho?nas Lamb''^^ Efq; then a Magiftratc, on IVeimfday Evening, and about eight o'clock Mrs. I'/idker fent a Servant after me ; coming from Mr. Lainy-, in the narrow Part that leads to mv Houfe, I met two Men in Blanket Coats, with Clubs, who feumed very menacing, Mr. Laf)ib wanted to borrow two Volumes of Shakefpear, and fent his Man after me, fo that nothing happened from thefe People that Night, James Cafe, of the 2'jth Regiment^ for the Croxvn. Q^ Did you fee i'eopic coming from Mr. IValker^ Houfe the 6th of Decembrcy 1764: A. Yes. Q, The fame Night ? A. Yes, Q^ Which Way did they fccm to be going? A. FromMr.ff^alker's Houfe; between eight and nine, Q^ Was it before or after Roll-calling ? A. There is Roll-calling at Retreat-be;.iring and eight o'Clock, but there was not that Day to my Knowledge. Q: You guefs the Time between eight and nine ? A. Yes, Q. You fay they were running as if they were running from Mr. fyalkcr's Houfe ? A. Yes, Qi How many did you fee ? A. Five. Q^ Did any body go in Purfuit of them ? A. Yes, one Grtd>b. Q, Did you know a«;y of them ? A. Simon Evans., Capt. P/jyr;e, and Roger:. Q; Did Payne fay any Thing to you ? A. Yes, he faid go back again, but he di.1 not, and Rogers cut him on the Hrad wit'i fomcthing like a Broad-fvvcrd. I watched Payne •and 32 and Tottenham into Tottenham's Houfe. Q; p.d you fee Magovock? A. ^'es, that Night I parted with him at fcvcn nr eight o'CIock at my Houfc. Q^ Where did he go ? J. I cannot tell. j^. Did he fay any Thing about his Bufmcfs ? A. Yes, .% What did he fay ? A. yoM will hear fomething remarkable be- tween this and next Morning. !^. Did he fay any Thing about iMr. IValkcr? A. No, only that a great Event would hap- pen. '^ What Time did he come ? A. Between fix and feven o'CIock ; and was with me about an Hour. ."^_. Did you fee Major Difney that Evening ? A. No, cannot fay it is him: Two People crolled the Parade, one tall, the other a little Man, about half after Eight. ^ Who v/ere thofe People; do you know them ? A. Neither was Major D'lfncy. One a tall Man, the other a little Man. Cross Examination. ^. Pray what Condition was Magovock in when he came to your Houie, was he drunk ? A. He was not very drunk. .'^. What do you call drunk; was he able to Ibnd .'' A. Yes. e>. To walk? A. Yes. .^. Was he able to go about Eufuiefs ? A. Yes. •v; ^'li^t Time was it that he left your Houfe r A. About half after feven o'CIock, Mago- vock aflced me if he might lie in my Houfe. I told him no. ^. Why ? A. Becaufe it was improper for a Soldier to lie out of his Quarters. j^. How near together v/as it that you left the Houfe ? A. About a Minute. .^. Where did Magovock go \ A. Intending to go forhis Quarters. ^. What Street did you live in, was it in the Street Colonel ChrijUe lived ? A. Yes. ^ When he left your Houfe did down that Street towards the River? A. Yes. he go ^ Where did you go when you parted with Magovock ? A. To the Recollet'i Street; but flopped to talk with one Johnfon in the Way, then went down diret^tly to the Parade. .1^. 'W'hen you came to the Parade what did you lee ? A. I met them crying, Jlop thenii Jiop theniy they have killed a Merchant : And met Payne^ Evans ^ and Rogers. .^. How long was you coming from your Quarters ti the Parade ? A. About three quarters of an Hour. Court — ^. How do you know the Time; in what A'lanner did you divide your Time ? A. By Guefs. i^. When Magovock afked to lie in your Houfe, do you think if you had confented he would have gone to Bed immediately ? A. No! The Man was fenfiblc enough. Henry MertA, Soldier of the Royal Americans., for the Crozvn. ^; Did you fee any Pcrfon the Night of the Afiiiult going to or coming from Mr. If^alkers? A. TheEvening, aboutEight orNine, Imct aNumberof difguifedPerfons,fome blackt,fome in Blanket Coats; but thought that they were going on fome Frolic: Didnotmuch mind them. ^. \V,ere they going towards Mr. ffalker'^f A. Yes, towards. /^; Did you know them ? A. I did not know them all, but fome of them. ^ Who did you know ? A. John Mees^ Coleman^ and Daniel AJljman. ■?; ^"^ here did you meet them ? A. Juft in the main Street at the End of a little Street that leads to Mr. JFalker\ near to a Tavern that Mr. Alurray keeps. ^. Did vou know any body elfe ? A. No. ^ ^. Was Major Difney there of that Party r ^. Did you fee Magovock there ? A. I did fee a Man like Magovock.^ with a Blanket Coat, and Stick in his Hand. J^; You had known Magovock before this ? A. Yes. .f^. How long ? A. Three or four Years. .^. You was well acquainted with his Perfon ? A. Yes : And tJ the beft of my Opinion he was ojit of the Party. ^, Thpfe rted with opped to iicn went what did pop them^ let Poyne^ oin your e Time; T'ime ? in your fen ted he ? 3Ugh. icans^ for »ht of the Walker\> ne, I met ickt, fome :hey were ind thcni. Walker\ ? fome of :/ y1J})tnan. End of a s near to Party ? wi th a )re this ? is Perfon ? pinion he I. Thpfe J^. Thofe Perfons that you knew again had they Difguifes en their Heads ? Jf. Daniel J/hman had not. JS^. Did you ipcak to them. A. Yes, I fpoke to Ajhman, ^ What did he fay ? A. Never you mind it. ^ Did nothing elfe pafs between you and Ajhman ? A, Not at that Time. jp. Did you fee him again \ A. Yes, I faw him after. j^; Where did you fee him ? A. At a little Sally-port by the Governour's Houfe. .^. Was that Sally-port open ? A. Yes, it was open at a little after nine o'clock. ^. Who did you fee with Daniel AJlmian? A. Sergeant Mees. Then I afked Ajhnan what they had been about, having heard fome- thing of the Aftair ; he faid I believe we have done for Mr. Walker. ^. You did not fee Major Difney in that Group of fourteen or fifteen ? A. No, not to my Knowledge. Cross Examination. 3. You did not fpeak to Magovock ? ^ How did you know it was he ? yj. Having drank with him very often, ac- cording to his Size, ijc. fo knew it was him. yury. Q. Had he any Thing remarkable to the fell? A. No. Qj^ You did not fee his Face ? A. No. Q. Nor hear him fpeak ? A. No. Connjelfor the Croivn. Q. Some of them had Crapes over theirFaces ? A. Yes fome of them ; Ajhman had not, Cole- man had fomething black, or a Crape over his Face. Q. How near was you to them ? A. Half the Breadth of the Street. Q^ Could you know their Features notwith- ftanding their Faces being blackt and difguifedr' A. No, being Moon-light. The Counjelfor the Crown not thinking any more Evidence necejjary, refledthe Alatter here^ and the Counfelforthe Prifoner opened his Defence as follows: N. B. There were three Gentlemen of Coiinfei for the Pri- foner, Mr. Gregory, Mr. Morrison, and Mr. Antill. The Prifoner's Defence. Counfel for the Prifoner. After the long Evidence laid before the Court, 33 and from the vaftContraditflions of Things that interfere with each other, I think that nothing ought to be refted on that Evidence : But as it is a Crime fo below a Soldier, and for Fear the leaft Sully (hould remain on my Client, I will take up a little Time, and hope 1 ihall be able to take that away, that he had the lead Hand in it. I believe no Man can look on fuch a Crime with more Contempt than I do, iJc. We (hall call a few Evidences. Madam Landrievesy«r the Prifoner^ as interpreted by a /worn Interpreter. Q: Do you remember fome Time in the Month of Dt'ccmher^ tlie fixth, being at a Ball at Dodor Robertfon's F A. Yes. Q. What Time of the Day did you go r' A. At four o'clock. Q; Did you fee Major Difney F A. Yes. Q; What Time did he come there ? A. At five or half after five. Q^ What Time did Major Difney ftay there r" A. All the Evening. Q^ What Time did he go away ? A. Between three Quarters after nine and Ten. Q. Did Major Difney go out of the Room from the Time he came in, till he went away.^ A. No. Q; C^ uld hegoout without your Knowledge ? A. No. Qi How did you pafs your Time .'' A. At Half after four we began to boil Mc- lafl'es, or make Tire. Qi Major Difney, was he there ? A. Yes! and play'd a great many Pranks with me. Q. What did you next P A. We drank Tea. Qi How long did the boiling of the Melafles- laft.^ A. About three Quarters or an Hour. Q. Did Major Difney drink Tea P A. Yes. Q. After having drank Tea what did you do.^ A. We play'd at Blindman's-Buft'. Qi How long did that laft ? A. Perhaps Half an Hour. Q. After that did you dance ? A. Yes. Q. Did Major Difney dance ? A. Yes! with me. Q; How long did you dance ? -,/ I /f. Till ^1 t. >■ 3'^ //. Till Supper. .!^_. What Hour ? J. Halt after eight or three Qiiartcrs. ^ Did Major Dif7iey dance all the Time till Supper ? J. Yes. j^. Did Major Difney fet down to Supper ? y/. Yes, next to me. j^. How long did you fit at Supper ? yy* Till we heard the News that fome Peo- ple had ill-treated Mr. If^alker at his Houfe. >;). Did Major Difney ftay at Table till that Tiii.'e? A. Yes. .^. What Time did he go away from thence ? J". A Man came from General Burton for Major Difney; becaufc the Oflicers were called on that Occafion. Q^ About what Time was that ? -V. About ten and half after. (^ What became of Major Difney ? A. He went away. Cross Examination. Q^ Madam, were your Eyes fixed on Major Difney from fix o'Clock to half after Nine ? A. No. I had them not more fixed on Ma- jor Difney than any other Perfon. Q. Did you play at Cards ? A. No. Q. Did you go out at any Time ? A. Yes, I was abfent about five Minutes; I left Major Difney in the Houfe, and found him there on Return, at three Quarters after Eight. Q. Did you look at your Watch when you went out and returned, to know five Minutes f A. No. But I faid five Minutes, thin that was more than the Time I toolc. Q. Was you never abfentbut that one Time? A. No. Q. You are very fure you left him and found him on return ? A. Yes, very fure. Q. Was there any Alteration in Major Difney a Drefs or Appearance from the Time you went when you returned ? A. No, he feemcd juft as frefh, and feemed to be as compofed. Q^ How were the Company employed in the Time of your Abfence ? N. B. A. They were fitting round the Stove till the Table was laid, i^c. U'c. Mrs. Campbell, for the Prifoner. Q. Do )'ou remember where you fpent the Eve) 'ng the Night the Attack was made on Mr. lyalierP A. Yes. ing Q. Where ? A. At Mr. Rtbtrtfm'a. Q. What Time did you go f A. Half after three or four o'Clock. Q; Did you fee Major Difney ? A. Yes. Q. What Time did he come ? A. Between haJf after four and five. Qi When did he leave it ? A. Between three quarters after nine and ten , Qi Did he ftay there during the whole Time * A. Yes. Qi Without going out? A. Yes. Q. Do you think it poffible that Major Z)//w^^ could be abfent without your Knowledge ) A. No : It is not poffible. Q. "NVho did Major Difney dance with ? A. Madam Landrieves. Q. What was the Reafon Major Difney left the Houfe ? A. For the Affair of Mr. f talker \ there came a Soldier to fetch him. Q. From whom ? A. General Burton, Qi At what Time were they informed of that Afi^air ? A. By the Soldier that came on the Part of General Burton^ at nine o'Clock. Qj Before or after Supper ? A. We were juft at Table. Q. Was it before or after Supper ? A. We were st Supper. Q. Did you know it before Supper ? A. Yes. Q^ Who informc 1 you ? A. ^1r. HoW(trd. Q. Was Major Difney at Supper at that Time when Howard informed you ? A. He was. Q; Had Major Difney been abfent at all dur- ing the whole of coming in and going away ? A. No. Qj Was you abfent during the Time ? A. No. Q^ How did you pafs the Time that Evening ? A. Firft, making Ttre, then Blind-man's- buff, after that danced. Qi How long ? A. Juft till half after eight ; till Supper. Q^ Who danced with you ? A. Mr. Robertfon. Cross ?5 le and ten . )le Time* i. Yes. at Major 1 owl edge ? vith ? Difney left er; there formed of le Part of :r at th:;t at all dur- ig away ? imc ? t Evening? ind-man's- 5upper. Cross Cross Examination. Qi What Reafon did you regard Major Difney (o that he could not go out without your Knowledge ? A. There were (o few in Company that Ma- jor Difmy could not be abfent without my Knowledge. Q; Did you never leave the Room to go into another ? A. Yes Q^ About what Time ? A. About half after four or five. Q. The only Time ? A. Yes. Q; How many Couple were there dancing ? A. Five Couple. (^ Was the whole Company employed ? A. No, one Lady did not dance. Q. Did you dance till Supper ? A. Yes. Q. Did Major Difneydsincc the whole Time ? A. Yes. Q. Whether in the Dances the whole Com- pany were employed in dancing all the whole Time? A. \es. Q; Did any of them fit down fometimes ? A. They were too few. Q. What Dances ? A. Englijh Country-dances. Q^ Were they all employed ? A. Yes. Q^ At what Time did you begin ? A. Half after feven. Mr. Robertfon, for the Prifoner, Q. Do you recolledl where you fpent your Evening 6th Z)^r^;«^^r, 1764? A. Yes! At my own Houfe. C^ What Company had you with you ? A. Captain Campbell and his Lady, Captain Evans and his Lady, Mrs. Lntulrieves^ Mrs. Howard, Mrs. IVhite, Major Difney, my Wife and myfelf. Q; Was Major Difney there ? A. Yes. Q^ What Time did he come ? A. About five o'Clock. Q. What Hour did he leave your Houfe ? A. About three quarters after nine o'Clock. Q. Was he abfent from your Houfe from the Time he came to your Houfe to that Time ? A. He was not abfent but two or three Mi- nutes, from five o'Clock till that Time. Q. How did you fpend your Time ? A. Making Tire, then play'd Blind-man's- bufF, then danced, then eat a little Supper. Q. If after you began cnofe Things Mijor Dij s of your Party ? A. Yis. t^ o did Major Difney dance with ? A. \Avni' 'mdricves. (^ V 10 di you t* ivGwith? A. M Ci.mpiftl Q. Pr, vdo you k ow the Reafon of his p^**. ing away v> hen he ili ' A. An orderly Sti^eant, oldier rom General Burton, came. Q. Did he mention the R Mti\ ? A. I don't rccolledt. Q; Did you hear before then of any Acci- dent happening to Mr. ff^alker !" A. Yes I did, about half an Hour beforu that Time. Q. From the Time Major Difney came to your Houfe, till the Time he Itlt it, did you quit your Houfe ? A. No: I ftaid there all the I'ime. Qi Do you recollect any Lady being abfent for about four or five Minutes ? A. Yi's, Mrs. Howard, Mrs. Landrieve, and Mrs. JVhite. Q^ Was Major Difney abfent from that Tim ? A. No, he was not abfent during the whole Time. Cross Examination. Q; Major Difney was in Company at your Houfe for four or five Hours together ? A. From half after five till ten. Qi He did not go out of your Houfe till that Affair .? A. No. The Perfon that came told him that General Burton wanted him. Qi You did not obferve whether he was ab- fent for a fmall Space of Time i* A. I did not obferve; but he might be ab- fent for a Minute. Q^ Whether you have a Memory that he was abfent, or only mean to fay that you think he was .? A. I don't know that he was. Q. Did you ever mifs him from the Company ? J. No. Q. But he might be ? A, No. Qi You was there the whole Time ? A. Yes. Q. Did you go out of the Room into any other Part of the Houfe } A. Yes. Qi Did you ever leave th Company any Part of the Time ? A. No 1 ■,'■» 3« A. No never, but the Company changed Rooms. Q; Is it ijfual for you to take fuch particular Notice of the Coinpuuy ? A. TlRie was fo fm;ill a Company that none of them could be abfcnt without my knowledge. Qi What Hour did you begin to dance? ./. About ll'vcn o'clock. Q^ How long did you continue dancing ? A. Till Supper. I am politive from the Time, that Major Difney or any one elfe, could not quit the Room till Supper, without my Knowledge. Airs. Howard, for the Prifoner, Q; Where did you fpend the Evening, Thurf- eiay, i\xt\\ December., 1764? A. At Mr. Rcbertfon's. Q; What Time did you go there ? //. About rtve o'Clock, or fooner. Q^ What Company was there ? A. Mud-am Roi^ertjifiy Mnd.im CampM/., Ma- dam Eviins, Madam LanJrieves^ &c. Ci; M.»jor Difney^ was he there .? A. Yes. Q^ How long did he continue ? A. 1 faw him there as long as I ftaid. (^ How long did you (lay ? A. Till a Q^iarter after eight, then went out to my own Houfe, then returned in about four or hve Minutes. Q: Major Difney^ was he there when you returned ? A. Yes. Qj Who went with you ? A. Madam Landrie-jes and Mrs. White. Qi Did you fee any Alteration in his Drefs or Manner when you returned \ A. No, none. Q^ Pray do you remember how Major Difney was d relied ? A. Plain Scarlet Coat with yellow Lapels. Q; Have you ^fxw that Major Difney quitted the Houfe after your Return till he went away? A. No. Q^ Was it poflible that Major Difney could quit the Houfe from your Return, till he was fent for ? A. No, it was not poflible. Q; How did you pafs the Evening ? A. Making Tire. Q; Who danced with you ? A. Capt. Evans. Q. Who with Major Difney ? A* Madam Landrieves. . . Joseph Case. Q; Was you fcnt by General Burtm to fetch Major Difney f A. 1 was fcnt by General Burton. A Number of Merchants came to General Burton and told him fuch an Affair had happened. The General comes to me and faul, Caie, put on your Hat, and run to ALijor Difney, ^ive my Complimcttti ta hi/Ut and tell him I want to f peak to him. Not to come without him. I went to his Houfe, not at Home ; the Servant told mc he believed he was cone to a Dance, and believed to Mr. Ro- hertjon's ; made the M m talce his Hat and go with me: Then went to Madam Landrieve'si he was not there ; then went to Mr. Rohertjyn's, three Servants were Ibnding at the Door, I afked if Major Difney was there, the Servants faid he had been thtie all the Evening. .Q. What Time was it you was there ' A. I believe about half after nineof the Clock. I told the M.ijor, who did not fliand to allc any Qiieftions, but took his Hat and walked all the Way before, with a plain Suit of Ciotiics and a laced Hat, his Hair frized not the Icalt dif- ordcred. i^. Was you a Soldier at that Time P A. Yes, in the 27th Regiment. Afrs. Ermatinger, for the Prifoner. .^; Do you recolleol being at Mr. Walker's after' the Artairr" ^. Yes. !^. Had you any Converfation at that Time with Mr. Walker^ touching the Knowledge of thofe that committed the Affair P A. Somebody afked Mr. Walker if he knew any Perfon; his Aniwer was, 'that he did mt\ hut believed that he knew Lieutenant Scott, iy the Figure and Manner of his Cbaths i but only pre- fumed. Air. Samuel Ma Kay, of the Royal Americans, to the CharaSli.r of ^lugovock. 3. Do you know George Magovock F A'. Yes. j^. Pray how lonr: did you know him P A. Ever fince he came over; think it was in 1756. He was drafted. He was in the fame Company I commanded. .<^. What is his general Charader: Do you think he is a Man that can be taken for his Oath f A. He has been flogged feveral Times for flealing: Well known by feveral Merchants when he was draughted. Mr. Duncan men- . : . i , .. tioned O. ts % I to fetch Number and told General our Hat^ i/i/nenti to Not to tul'e, not lievcd hf Mr. Ro- It and go tdrii'Vf'a ; Door, I Servantii •re > le Clock. 5 alTc any ed all the ;)thcs and Iralt dif- e? er. Walker\ s. hat Time krlcdgc of he knew .' did mt\ >tt, l) the only pre- ericanSi to P im ? it was in the fame ti Do you for his imes for /lerchants can men- tioned tinned particularly Mugvuock as a good for no- thing Fellow. Jacob Moran, Sayeunt-Maj'jr^ to thi Charaeicr his Character ? A. A Man uf a very had Charatflcr; has been flogged tor fcvcral Crimea; have heard that iic dcCrtttsi oucej that he ufcd to ileal iometirncs; I van give nrtnc but a bad Charac- ti.1 ol hull. Farrel, to his Chnra^er. (^ Pray do 'oij know Giorge Magovock ? 37 A. Yes. (^ How long ? A. Since the Year 1754: Well acquainted in Irclcniil. Q. What is his general Chatactc. ? A. I never knew a good one, always a li.;d one: He was alw." . a tbrlV/oin A'lau and Tiiut in the Royal Regiment; a M.m nt^t to be ci:- dited, and told a Story ot his lillin':, and fweaiing lie was an En^lijo altlio' an ltij:> Man, E>iil nf the Prij';ntr\ L'riJ.'Uit'. Alter the I'rifoncr's Counfcl had cloiLd the Kvidence in his Defence, the Attorney General made a Rtplv, to nearly the following Purport, but le^^ fully and with lel:^ W'arnuli. •• AJiiy It plfdfc your H;mto\ am you., Gint/r/Hiii of the Jury^ T ^^'-■'^ leave to trouble you with a few ()l)fervations upon the F.vidence th:tt has been productil J_ in the Prifoner's Defence. This Defence feenjs to confilt of two P.uis; tlie ou'Ms an Attcmj)t to prove that the Prifoncr was engaged in Compaii)' at Dr. Rolintl'.nv, Houfe, dining- the Time of the Aliault upon Mr. JVi^ have told you that * Captain Difney fpent the Afternoon and Evening with tlicm at Dr. Robertfvi^ Houfe in Mon- * treal^ not 'Fwo Hundred Yards dilbntfrom Mr. JValkev'i Houl'e. Two of thole Ladies, Mrs. * Hnvard and Mrs. Campbell^ are the Wives of two of the Prifoners now in Ciiftody for this * Alfair; and the hitter is likewife the Daughter of another of thofe Prifoners. The other Lady, Mrs. Landricvt'Sy is a very intimate Acquaintance and Friend of Captain D'lfney^s. And Dr. Rohcrtj'on has givL-n llrong Proofs of his cagor Delire to get both this and all the other Prifonersr for tins Ail'air difchargcd, and has gone much greater Lengths for this Puipole than the mere Love of Juftice and a Concern foraCcufed Perfons, apprehended to be innocent, ufually carries Men to: He has, fince the Chief-Juftice has been in the Town holding the ScfTions of the Supreme-Court, been bufily exercifuig his Oifice of a Jurtice of Peace with Refpedl to this Affair, by taking Depofitions relating to it. I leave it to him to explain, or to you to conjec- ture, whether he could have any other Dcfiain in doinf; fo, than to influence, in a clandelfine Manner, the Aiiiuls of Men in Favour of thefe Prifoners, by fitting up a Parcel ot private Evi- dences taken thus before him, in Oppofition both to that which fhould be offered to the Grand- Jury and to that which fliould be given here publickly in Court before you. Gentlemen, in Support of the Profecution. One of the Perfojis whom he has thus examined, has fince made ():ith before the Chief-Juftice, in my Prefence, that he had been thus examined, upon Oath, ' by tills very Zealous Magiftrate. Such, Gentlemen, are the Witnelfes that are brought lO fup- ' port this Alibi. *• (jcntKMnen, thefe 'Witnclfcs have not told vou to what particular Cireumftance it is owing ' that th'.^y remember fo exattly the Manner in which they fpent their Time on the 6th q{ Decern- * hc)\ 1764; wiUKHit which it mult needs appear ftrange that they fhould remember it fo exactly. * Can they tell where and in what Company, and in what Manner they fpent their Time on the ' 6th iii Decerning 1765, or even on the 6th of I aft December^ though only three Months paft? — Or can you, Genclomen, thofe of you that were then in Montreal^ remember diftindtly where and how you fpent your Afternoon and Evening on that very fame 6th of Dccetnber^ ^T^^^ If you cannot, is it not fomewhat furprifing that thefe Witneilcs fhould be able to do it fo exadlly, without lume particular Cireumftance to induce them to take Notice at the 'I'ime, or foon aftir, of the Manner in which they fpent that Day.? This Cireumftance I fhould have been glad to be informed of. Was it that they fufped:ed that Captain Difney, or Mr. Howard, or Captain Campbell, or Mr. Simtn Eva?is, or any other Perfon in that Company at Dr. RobertfonSy would ever be accufed or queftioned about this Affault upon Mr. JFiilk er Such an early * Sufpicion, Gentlemen, would, in my Opinion, have been no fmall Prefumption that fome of ' that Company were guilty of it. What other Conjecture to form concerning the Caufe of their * remembering fo well the Manner and Company in which they fpent that Day I know not. *" ' Tis certain they have help'd us to no other. ^ * Rut, Gentlemen, other Things in their Evidence afford Matter of Surprife. They not only * remember of what Perfons the Company confifted, and how they fpent their Time, but de- * clare that they are confident that Captain Difney was prefent in the Company during the whole * 'I'ime th:it each of thcmfelves was prefent there, though that Time was near five Hours. ' (jcntlemen, this bold Affertion deferves to be examined, in order that you may fully undcr- * ftnnd it, and afltgn to it its proper Degree of Credit, which I believe vou will judge to be but ' little. It may be underffood in two different Senfes: It may mean either that thcie Witneffes * had their Eves continually fixed upon Captain Difney, fo that he never was out of their Sight * and Obfervation durin^; the whole five Hours, which would indeed be a jofitive Affertion ab- * folutely iticonfiftent with the Chargej or it may mean that they did not indeed keep the Prifoner * continually in their Sight during that whole Time, but only tiiat they faw him there at feveral ' different W •^■^ : on what Feftimony le pofitive this is the you that e in Aloti' iies, Mrs. for this :her Lady, And Dr. ■ Prifoners" the mere illy carries )ns of the 61 to this :o conjec- landeltine ivatc Evi- le Grand- lemen, in ince made >on Oath, jht lO fup- is owing of Deccrn- b exadtlv. tiie on the nths pad? dtiy where 1764? If h cxadlily, , or foon have been 'oward^ or Icbertfons^ h an early t fome of ifcof their now not. y not only , but de- the whole urs. Uy undcr- to be but Witnefic3 heir Sight crtion ab- e Priibner at feveral ' different 39 difFerent Times during their being together, and that they did not mifs him or obferve that he quitted the Company during that whole Time; and therefore that they, by Inference, conclude that he did not quit it, becaufe, if he had done fo, they think it highly probable that thcv mult have taken Notice of it. 'Tis in this latter Senfe the Evidence of thefc VVitneiTcs mull: be taken : The other is too bold, or rather dcfperate, a Kind of Evidence for any People to deliver in a Court of Juftice with any Expectation of being believed: And accordingly you muft have ob- fervcd, Cicntlemcn, that when the firft Witnefs was afked whether fhe had her Eyes fixt con- tinually upon Captain Difney during the whole Time (which /he mull: have faid if fhe had meant pofitivcly to affirm that he was there the whole Time) fhe readily anfwered that fhe did not keep her Eyes thus continually fixt upon him, but thnt Iho faw him there very often, and never obferved that he left the Company, which flie fays Ihc could not but have done if he had ever left them, becaufe the Company was but fmall: And the other WitncU'es aniwered in the fame Manner. Now this is not a pofitive Afl'ertion that Captain Difiicy was there all the Time ; It is only a negative Proposition, or a Declaration that they did not obferve him to leave the Comp:iny in all that Time, which is a very different Thing. For, Gentlemen, this Declara- tion, that they never obferved him leave the Company, miiv be true, and vet the Infeixnce thcv would draw from it, tliat he never left it, ma.' not be fo: He may h.ive left the Company mors than once, and they not have obi"er\cd it, el'peciallv for fo fmall a Time a.s five or fix M nutes, which is fufficient for his attending a Tranfaction that happened only at the Dillance ol Two Hundred Yards from the Place where the Company was affemblcd. And therefore. Gentlemen, the Ev iilencc ox thefc Witnelles, fiippofing it to be ftridllv true, does not pofitively prove th.* Priloncr's Alibi, but only gives Room for a probable Inference in Support of it; which being- but a Prcfumption, ought not to be let in Oppofition to the pofitive Teftimony of three Wit- nelles in Support of the Charge againlL him. * Bur, Gentlemen, we may go ItJl further. This Evidence of the Prifoner's Alibi is not even a very Jlrong Prefumption. Forwliere is the great Improbability o^ a Perfon's abfenting hiinlelf once or twice from a Company of eleven Perfons (which was the Number allembled at. Dr. RolKTtjon's) for a fhort Space of Time, fuch as five or ten Minutes, without being obler^cd by the other Perfons in the Company, and that too with fuch particular Attention that thev' i\)\\\ be able to rccollecl: it a long Time after? Such a Wajit of Obl"er\ation of the Motirui:) of the rell of the Company, as not to recoiled fuch little Abfences of fome one of them, \% furely by iio Means uncommon. Gentlemen, I appeal to yourfelvcs, whether v/hen you hap- pen to be in a Companv of a Do7,Gn People for five Hours to2:cthcr, who are met tf)gether for the Sake ol Mirth and Amufement, you are apt to watch each Perfon in the Company fo xer/ carefully that you can lately declare afterwards, upon Oath, which of them abfented himfelf from the Company for a little While, and which did not, and can be Cure th.it during tho whole Time fuch or fuch a particular Perfon of the Company never left it, even for the Space of five or ten Minues? Gentlemen, is it your Cuftom to watch your Company fo narrowiyf \ believe I may fay that it is not. And in the prefent Cafe is not the Difficulty of obferving and remembering thefe Particulars cncreafcd by the Variety of Pallimes with which this Com- pany amufcd themfelves? They were not all the while engaged in Parties at Cards, or i;i dancing, in which Cafe they might perhaps obferve what became of their Partners and the others engaged at play with them: But they fpent Part of the Time in making Syrup, P:.ut of it in dancing, Part of it in drinking Tea, and Part of it, Gentlemen (which i« w-rtliy you]- Attention) in playing at Blind-man's-buff. Can they be fuppoied, during :ill thofe different Amufements to have been fo very watchful of each other ? They fhould at leaR luive excepted thofe parts of the Time they were playingat Blind-man's-buff during which they ackd the part of the blind-Man. ' Gentlemen, I could notbutadmire the Rapidity and the Pofitivencfs with which fome of thefe Witneffes delivered their Evidence, particularly the firll Witnefs. The Ani'wer was ready al moft before the (^eltion was pronounced. I believe fhe never repeated her Creed or her C.ue- chifm more readily or jumbly, She told you the exa6t Times at which each different Amulunent * be'>:wi <:« J 40 'I*. * began, as readily and preeirdy asiffhe had being reading an Account of them from Minutes of * that Afternoon's Entertainment taken down at the Time. OneThingonlyefcaped her uncommon ' AltTTiOry, till Ihc was induced to recoile£t it, by a poiltive Queftion put to her concerning it.' * Til J was tliat flic hcri'jlf was abftnt from the Company for Part of the Time this Company has ' b.'cn laid to continue together. Gentlemen, this Circumlhmce (he forgot to tell you in her * original Account; it was drawn from her in the Crofs-examination. But when (he did declare * ic, 1 make no Doubt, Gentlemen, that you obferved the great Importance of it. Gentlemen, * ic tends to nc)thin;j; lei's thiin to make her Evidence and that of Mrs. Howard (^ who was abfent with ' her for tnat little Time) i fay, it tends to nothing lefs than to make the Evidence of both thele * W^itncil'es (admitting it all to be itrictly true) of little or no Effect in fupporting the Prifoner's ' Alibi. For obferve only the Time of this Abfence. This Witnefsand Mis. Hnurtnl have both ' oftiicm told you that it happened about three Qiiarters of an Hour afier Eight o'Cluck, that is, * as ueai' as can be judj^cd, at the very Time of the Ali'ault committed upon Mr. /Falhr. Jull ' at this critical Time they left the Company and went to Mrs. Howard a floufe for a Table-Cloth,, ' leaving the Company employed in no common Amuiement, fuch as Cards or Dancing, that might ' require the Prcfence of them all, but htting round the Stove till the Supper Ihould be leidy : They * (hiid away fome little Time, which they think was about five Minutes, and tlien returned to. ' Dr. R;benfons. Gentlemen, this Time of their Abfence mav not improbably be a good deal * more than five Minutes perhaps a Qi^iarter of an Hour, or twenty Minutrs. Such Miftakes ' in the Meafure of Time happen every Day, where I'eople judge of it without looking at a * VV^atch, as thcfe Ladies have declared th.it ihcy did. ' in this fmall Space of Time it was poifible, for aught that is contained in the Evidence of * thefe two Ladies, for Captain D'lfney to have quitted the Company and flept Iloni'.to his Lodg- * ins:, and, there making the little Alteration in his Drefs, which was necciiaiv to m!:ui(.' him, * to ha\e gone into Mr. Jl'^ulkcr-s Houfe, and been prefent for two or three ^iinutc■i uiuing the * Aifault upon him, to overlook and encourage the Perlbns cn.ployed in it. The Ch.;:i'.;:i '-t Drefs *■ for this Purpofe would take up a very fliort Time. It Vv'as only throwing oir l.is Coat, and * flipping on a Canadian Gown inflead of it, and putting a Crape over his Face and a cuv lound ' Hat upon his Head with the Crape tucked in under it. This was the only Change nia*ic in his * Drefs from that in which he appeared at Dr. Rohertfzii^: •P\>r the Prifoner's Wiuieiies Jiave told ' you that he was that Day drelleJ in Scarlet, and Mrs. IFaiker obferved that he had a red WaifU * coat and red Breeches under his Cdnadiiui Gown. * This flight Change of his Dref; ',v: iniLht eafily make, and be prefent at Mr. Ifa/hru Houfe, * for a few Minutes, then change his Drei's again and return to Dr. Ro/jertfon's^ in the Compafs of * a very f'mall Time. We may therefore confider the Evidence of thofe two Ladies a.-, contributing *■ very little to fupport the Prifoner's Alibi. It mufl therefore ref: principally upon the TelHmonv * of Mrs Cnmphell^ aLadv that is the Wife of one, and the Daughter of another, of the Frifoneis * now in Cuflodv for this Afi'ault, and that of the very fricntlly Dr. Robcrffon^ w'uife Zeal in the * Defence of thei'e Gentlemen has been fo great as to lead him to take Depo^iiii^ns concerning * this Affair, even fmce the Chief-Juflice has been here in Town to hold this Stifioji. * Such, Gentlemen, is the Alibi to which you are defired to give Credit: An Alibi declaring * the Priibner to have been at a Place not Two Hundred Yards diflant from the Scene of the Of- * fence. — Pretended to be proved by fourWitnell'es, but in Truth notpolitively proved by any one * of them, (none of them fwearing that they had the Prifbner continually in Sight during the whole * Time they were together) But grounded upon a Prefumption only, and not a very flrong one, * that, if he had quitted the Room, though for a very fmall Space of Time, as five or ten Mi- * nutes, during any Partof the five Hours they weie together, thoy muff have taken Notice of it * And even this poor Prefumption is found, upon a Crofs-examination, to be fupporlcd * by only two of thefe Witneffes, the other tv.'o having confeffed that they themfelves were abfent * from the Company for a little Time, jufl at the critical Jun»ilure of the CommifTion of thc^ * Crime And this Proof, imperfect as it is, made by Witneiles under a llrotig and evident * Biafs in the Prifoner's Favour. 'This wretched Alibi you arc required to believe in oppolltion to ' the m linutes of iicommoji erning it.' npany h:is u ill her id tleclare LMitlcmen, ilent with both thclf Prifoncr's have both , that is, 'cer. Jult •le-CIoth,. hat miirht ly: They Jturned ta good deal Miftakes king at a ideiicc of his Ivodg- :iitl{' him, Kim.g the ^Dat, r.nd CLiL rouiul i;\«ie 111 his Jiavf told ;:d V/aill- r's Houfe, onipafs ot iitributing rciHmoiiv Pri ("oners 'i-iil in the oiicerning ileckinng if the Of- ly any one the whole long one, >r ten Mi- otice of it iuppojled ere abi'cnt on of thc^ id evident pofition to ' ^.he 41 the pofitive Teftimony of three Witnefles, two of whom arc Perfons of unblemifiicd Charnficr, and perfectly free from Prejudice againft the Prifoner, and the third was an Acc\.n)plice in rlie Fad. You cannot, Gentlemen, remain long in Doubt which of theie two rcitiinoiiics :., prefer. * Gentlemen, I have faid that Mr, and Mrs. If-'alhr are perfectly free from Prejudice Zi^\\ni\ ihe Prifoner. I will explain what I mean by that AlTertion. It cannot be pretended thattiu-v are free from Refentment againft the Prifoner: They mult be exempt from human Palfu*;! ir they were: But their Refentment arifes merely from this very Iniury with wliich he is iu>'a' charged, and from their own certain Knowledge of his concern in it! That, and the Piiloiitri Declaration before-hand. That he would be revenged upon Mr. Jralker, for his Ill-tieauiH.iL of Captain Payne^ are the only Grounds that Mr. iP'alker has for any Releritmoiit agiiin't Ci'ii- tain Diffwy. And fuch a Refentment cannot be called a Prejudice againlt Cuptain Dif'uy^ .v: in any Degree affect the Credibility of Mr. /Frt/>(t'?'s Evidence on this Occafion, becaiile tr.o very Exiftence of fuch a Refentment fuppofes ncceliarily that of the Crime with whicli the Pri- foner Itands charged as the Caufc and Ground of it. It might indeed affect Mr. ll^'alkers Evi- dence on any other Profecution againft Captain Difncyy cither for an Injury done to another Man, or for another Injury done to himfelf: But in the prefent Cafe it cannot have any fuch Effect. Till this unhappy Violence, or a very little Time before it. Captain Diftwy and Mr. JValker had lived upon good Terms with each other. Captain D'tfney himlVlf has informed you that he did fo: He has declared that he always entertained a Rei'pcct for Mr. IValkn- (that, I think, was his Expreflion) and cxpreffed it in Converfation whenever he had Occaffon to fpeak of him: And he has called a Witnels to prove that he did fo. And Mr. JValker has told you that he trufted fo much to the Profeffions of Regard that Captain Dijncy had often made him, and was fo confcious in his own Mind of his never having given him any Caufe of Of- fence, that, when he diftinguifhed him among the difguiied Ruffians that were come to affiiult him, he was encouraged bv the Sight of him to hope that his Life was not in Danger, and that the Miichief intended him was only a fevere Beating, or Wounding, or fomething ffiort of Death, in Revenge for the imaginary Infult upon Criptain Poyne^ till he was forced to think otherwife by thofe dreadful and murderous Words, pronounced from the oppofite Corner of the Room by the Man who advanced again him with a drawn Sword,. Daw.n hitn^ let nie come tt him^ and i U dij'patch him svith }n\ S-imrd. ' CTcntlemen, this Evidence of Mr. and Mrs. Walker^ appears to me to be fo weighty, that, if the alibi Dcftrncc of the Prifoner had been fupported by pofitive E\ idence abfolutely incon- fiffcnt with the Charge — • if not two only, but all the four Witneff'es had politi\cly fworn, that at eight o'Clock exactly they had fat down to play at Whift with the Prifoner, and that they ...-;d never left the Table till the Mcffem>;er came from General Burton with the News of the Outrage committed upon Mr. JFalkcr^ but had been all the While either at the Table pLi\ing themfelves, or near it^ looking on upon thole who did plav, and. that the Pri- foner had never cut out, but had been one of the Players during the whole of that Time, io that he muff have been continually before their Eyes and if the Perfons who teftihed this had not been the intimate Friends of the Prifoner, or the Wives and Daughters of the other Prifoners, but Perfons entirely unconnetSted, ai\d very little acquainted, v/ith them I fay, Gentlemen, that if the alibi Defence of the Prifoner had been fupported by fuch a pofi- tive Teftimony infte.id of the imperfcft and precarious Evidence which you ha\e beared, yet ftill the Evidence in Support of the Charge would defcrve to be preferred to it.— This may, at firft Sight, fcem a harfh Pofition: But it will be found upon Examination to be built upon a Principle of Candour and Charity, which directs us to think as favourably of human Nature as the Circumftances of the Cafe will permit us. Gentlemen, it would be a bad Dilemma for you to be reduced to, if you were really under a Neccflity of diftielieving the Witnefles on one Side or the other, and confcqucntly of fuppofing thofe on one of the Sides to be guilty of wilful Perjury. But if you were reduced to this Dilemma, to which Side would a moderately good Opinion of human Nature induce you to impute the Perjury? To thofe who give Evi- I^ ' dcnce 1 42 I ii; dencc to take away the Prifoner's Life, or to thofe who give Evidence to fave it? Is it not more natural that Men ihould commit Perjury to refcue a Man from Danger than in order to eri'ecl: his Dofhudion r In the former Cafe they may think perhaps that the Ben^'volnice of th? Intention with vvhich they commit this Crime may fomewhat oxteiuiatc the Guilt of it; in the latter Cafe they mult feel that the Guilt of the Perjury is aggravated an Hundred-fold by the WickeJnefs of the Intention with which it is committed. The former is a Crime which Men oF loofe Principles may be fuppofcd capable of committing, and which indeed is very frequently committed; the latter is a Crime too black for even wicked Men, and ieldom or never known to have been practifed. Hut, Cicntlemcn, you are fortunately not reduced to this Dilemma, /ince the Evidence advanced in the Prifoner's Favour has been fhewn to be not irreconcileable with the Evidence in fupport of the Charge. The Prifoner may have fpent that Ev'ening in the Company of his three fair Witncjlcs, and yet have been abfent for a fhort Tsmo to partake in the Revenge taken againft Mr. (Valker, without being milled by them. ' Gentlemen, that the Prifoner fpent that Evening either in that Company at Dr. Robcrtfon^^ or in fomeotlier numerous Company, 1 think is highly probable. I fhould have imagined he had done fo if he had produced no XVitneiies to prove it: For it is but a rcafonable Precaution for any Man to take, who intends to be concerned in any dangerous Tranfadtion, for which he may afterwards come to be queltioned. He thereby furnifhes himfelf with a ready Defence againlt any Acculation of having been engaged in it that happens to be made in a loofe and general Manner, without narrowly enquiring into Circumltances. How can it be iuppofed, will he fay, that I was prefent at fuch a Tranladtion, when fuch and fuch Perl'ons can tellify that much about the Tune at which it happened, or at leaft not above half an Hour, or an Hour, before or after it, I was in their Company, employed in Dancing or fome other inch innocent Amufement." Such a Defence will do very well to anfwer the Sufpicions and Hints thrown out a'^ainil him in common Converfition, and will pafs with many People for a full Jullifica- tion; and, perhaps, with a little Improvement (if the Witneifes are well difpofed towards the Prifoner) by varying the Time and other Circumilances in the Manner requiiite, it may meet with Credit even in a Court of Juftice ; whereas, if he had fpent his Time at Home in a iblitary M.inner till the Time of committing the Crime, he could have nothing of this Kind to fet up in Oop')lition to the Tellimony in fupport of the Charge againft him. ' 'rhei'e. Gentlemen, are the Obfervations I thought it necell'ary to oi?er to -^ou concerning tis boailcd Evidence of the Prifoner's Alibi, whicii makes the principal Part of his Defence. I am fenhble they have taken up too much of your Time; but I knew not how to make them iaorter. I hope therefore you wdl excufe this Prolixity, and at the fame Time will further indulge me with Leave to make a few Remarks on the fecond Part of the Prifoner's Defence, which confills in an Endeavour to difcredit the Witnefs JHci^ovocL *■ Gentlemen, it is of no great Confequence in theprefciit ProfecutitMi what Degree of Credit th s Witnefs deferves, as the Charge is fupported by two VVitjiciTes of indifputable Credit with- ouL him. However, I can fee no Reafon for treating his Evidviice w ith the Contempt which the Gentlemen of Counfel with the Prifoner have aiteclied to fhew for it. Fie certainly is not a good Man : No Body has pretended that he was fo : He owns that he was an Accomplice in this W'cked Action, which no good Man could be concerned in : And Lieutenant MaKay has laid, that, when he knew him in the Army, he was fo'metimet; guilty of Theft, and has been punifhed for it by a Court-Martial. I readilv believe this. But does this render what he fays as a Witnefs in a Court of Juftice of no Weight or Confequence? Does it follow, becaufe a Soldier has been guilty of Theft, a Crime too common amongit them, that therefore he will be (juiltv of the great and deliberate Crime (one of the moft heinous that can be committed) of fwcaring falfelv in a Court of Juftice to take av»':iv another Man's Life ? Surely it does not: And the Law, Gentlemen, in the Cafe of Accompiicci, determines that it does not: For it allows their Evidence to be received againft their p'ellow-criminals, nay, to be alone the Ground of a Convitftion, w^ithout any other pofitive Teftimony, provided there is fome concomitant Evi- dence arifing from Circumftances to make it probable. Numbers of People have been con- ' demned [s it not order to ce of the t; in the id by the ich Men equently r known )ilcMnnia, ncileable ng in the artake in obertpn'i, twined he recaution which he Defence loofe and luppofcd, an tellify an Hour, innocent :s thrown Juitifica- vards the lay meet a folitary fet up in ncerning defence. ike them further Defence, f Credit it with- )t which \' is not a ce in this Kay has has been t he fays lecaufe a e he will mmitted) ioes not: it allows round of tant Evi- »een con- demned 43 demncd upon fuch j^vidence, and with the general Approbation of all the World: And there are now \n S^uebec Go^\ two Soldiers under Sentence of Death, for breaking opjn Mr. H''ooljc/s Cellar in the Night Time, and dealing a Caikof Wine from it, who were convidted upoji the itngle Tellimonv of an Accomplice with them in the Fa£t, together with a Proof by Mr. Woolfey and his Clerk, that the Cellar had been broke open by fomebody or other, and the Wine taken away. How much more then docs fuch a Ttftimony dcferve to be regarded, when it does not itand Hnglc, but is made ufe of only to confirm the pofitive Teftimony of two other WitnelTcs oi indifputablc Credit, which is the Cafe with the E\!dence of this VVilnels on the prefent Profecution. ' Gentlemen, the Credibility of a WitnefTcs Teftimony does not depend merely upon the Goodnefs of his CharacSter. The Probability of the Story he relates, the Agreement of it with other well-known Fadts, the Minutcnefs and Particularity of the CircumlUnces he mcncions, and his Illiteratenefs and Ignorance and utter Inra.iriry to invent them, if he was wicked enough to endeavour to do fo, may make his Evidence; d -: .'.ve to be believed by thofe who have no Opinion of his Virtue. Thcfc, I prefumc, are ionie or ihc Grounds upon which the Law admits the Evidence of Accomplices, and allows it to have coniideraijle Weight: And the'c are the Grounds upon which the Evidence of this Witns^i'd MacgiviLk defervcs to be regarded. Gentlemen, can you iuppofe this Witnefs, who can neithirr write nor read, I lay, can you fuppofc him capable of inventing fo long and particular a Story a,; he has related to you, and which is attemied with lome Circumlhmces fo uncommon and furprifing? Is it likely that he fliould think of fo remarkable a Circumftance as that of the Confultation at Lieutenant Tottenham^ Houfe on the Monday preceding the Aflault, in which the Prifoncr at the Bar ad- miniileied to him the Oath of Secrecy, uiilels thell' Things had really happen^-d? Would he have refufed to deliver his whole Evidence about this MutLer at once in his tint: Depolition, if he had not been under the Reftraint of fucii an Oathf Ls there any Reafon to iuppofe that he is fo rcHjicd and ingenious a Villain, as to be able to invent i'uch a Story about an Oath of Se- crecy, merely to make himfelf pafs for a Man of fome Confcicnce, and give Credit to the rell: of his EvidcjKx? I caimot, for my Part, have either fo bad an Opinion of his Heart, or fo good an one of his Underltanding, as to fuppofe this: His Teftimony therefore defervcs the fame Degree of Credit as is ufually given to the Evidence of Accomplices, notwithftanding the Endeavours that have been u fed to afperfe his general Character. It remains that I make a few Remarks upon the Evidence he has delivered at this Trial, and the Inconfiftcncies which the Gentlemen of Counfel for the Prifoner have obferved bf tween the different Parts of it, aiid between I'omc Parts of it and the Evidence of fome of the other Witneftes. ••Oneofthefe Contradidions is, that he faid in his Croff-Examination that he carried the Intelligence concerning the Progrefs of the Aftault upon Mr. IValker to Captain Payne and Lieutenant Tottenhatn at Sergeant ALu's's Houfe, whereas he had before faid tliat Captain Pfjyne and Lieutenant Tottenham were, during that Allault, ftandingin the Street in which Mr. IVidker's Houfe is lituated, near the Houfe of one BcUair, a Baker, which is almoii: dn'ectly over-againlt Mr. [fa/xirs Houfe. Gentlemen, I doubt not you ma'A have obferved that this Miftake was never made by the Witneis, but by the Counfel that croft-examined him, wtio, throughout the v/hole Croft-Examination, endeavoured to confound the Witnefs and bewilder his Underftanding, by afking him a V^ariety of Queftions iniconnecled with each other and without any Method or Regard to the Order of Time, with a View to draw him in to make fudden Anfwers that might not be conftftent with each otiicr., But in this he was difappoiiutd by the Steadinefs and Cicarnefs v/ith v/hich the Witnefs gave his Anfwers to all the Qiieitions that were put to him. With Refpect to the pretended Contradiction now under Confideratio:;, the Witnefs's Evidence was really as follows: The Prifoner's Counfel had alked him whether he had feen Captain Payne before he went into Mr. JValker'a Houfe, to connnit the Aftiuilt; to which the VVitnefs anfwered that he had ken him before at Sergeant Mces's Houfe, and that they had come out from thence at the fame Time. After another Quertion or two, the Counfel afks him where it was he carried the Intelligence concerning theProgrefs of the AiFault to Cap- * tain . > S nA ,r K ^1 I r^ /.' ^4- iy i * triin P(jy*-c nny Lieutenant Tottenham', and the Witnefs afifWcrs, in the Street ttcir Mr iB'eilair'i * Hoii!e, which is aimofl over-againrt Mr. JFalker's. Thereupon the Counfel preteiids that this < !.s in (mnflfnt with his former An (wcr; for that in that he had declared that he had carried the ' Intel !ij,r com- ' mon Soldier concerning the precifc Time of aTranfiicition he relates, when he judged of it only *■ by guefs and without either Watch or Clock, impeach the Credibility of his Tcftimony con- * cerning the Tranfa£^ion itfelf, when that Teftimony is rational and confiftent with itfclf in every * other Particular? Certainly, Gentlemen, it cannot. Miftakes of half an Hour, or even a * whole Hour, arc frequently made by Men who obfervc Time much more carefully than fuch' * Perfons as the Witnefs can be fuppofed to do; and indeed they hardly deferve to be called Mif- * takes, becaufe the Difference of Clocks is fufficicnt to account for them. This feems to mc ' to be fo ufual and natural, that, in my Appreheniion, no Evidence whatfocver concerning the * precife Time of any Action deferves to be much regarded, though delivered by the moft refpec- * taWc Witnefs, unlefs the Perfon who delivers it declares at the fame Time that he looked at a * Clock or a Watch at the Time the Adlion happened, or immediately before or after, or elie * took particular Notice that it happened at the fame Time with fome other regular Tranfadion * that is always carried on at a fixt Hour, fuch as the ringing of the Bell of a. Church or Convent * for Morning or Evening Prayers, or fome other fuch remarkable Circumftancc. Without fome * fuch Circumftance I can ealily imagine that the moft honeft and judicious Perfon in the World * may miftake a full Hour in the Time of any Tranfa£tion he was prefent at, and fhould think * it a mere Chance if he was exa£t. In the prefent Cafe the Witnefs faid he believed it was a little « before eight when they fet out from Sergeant Mees's Houfe to commit the AfTault; in which, I * am perfuaded, he miftook the Time by more than half an Hour; for that it muft really have « been mote than half an Hour after eight ; at leaft by Mr. TValker's Clock ; becaufe Mr. and Mrs. * Walker^ and the Clerk and Servant, who have been examined in fupport of the Profecution, fix < the Time of the AfTault pretty exa£tly. And where now is the great Wonder that a common « Soldier, who had no Watch, and whofe Mind was flurried with the Thoughts of a dangerous * Expedition he was going to be concerned in, and with fome ftrong Liquor he had taken to pre- * pare himfelf for it» ihould think it was only eight o'Clock when in Truth it was half an Hour, * pr. forty Minutes after.?-— I fay, what is there to be furprifed at in fuch a Miftake? More I* A , * cfpecially •• • * MBeilair'i ds that this carried the t the Wit- ; had never w's Houfe, len, I dare t is abfurd aufe other- e from Mr. ce of Time ivented th.e vhich Cap- id to receive !r. If^alkers jlker's^ was to Captain T the Court fa id it was fe to go to nine, when believes the i this Inac- ht with you; poor com- ;d of it only imony con- fclf in every , or even a y than fuch called Mif- 2CIT1S to mc cerning the noft refpec- 1 coked at a "ter, or elle Tranfa^ion or Convent 'ithout fomc J the World lould think t was a little in which, I really have (fr. and Mrs, ccution, fix t a commoa a dangerous ken to pre- ilf an Hour, lake? More * cfpecially 45 •%oW!f ^whert w« coufhitr that poflTibljr theCIock at Sergeant A/ms Houfe, if there wai one ^H^a'^'s a o ""^ 7^ ""** ***• ^'°*'" •" hi# Neighbourhood, by which he and his Family had •Kr^lr*;.* ^*. o **' Timedunng that Day, might very well be fr>rty Miiuitcs flower tlian Mr. n^alker'ij Surely it defcrves very little Confideiation. Thofc trifflinj; InaccuracK-.s, m h.ci may be lo eafily accounted for, (ecm to me on the Contrary to add Siieiintii to ihe EvidvU' c ot a Witnefs rather than to rendent lefs credible, fince they Ihew that the Witntls anlwers raniy and honeftly what his Memory fuggefts to him, without' having urtfuliy framal a ngulai Scor/ with ev«ry Circumliance in cxadt and {lerfcdt Order, that he migiit .'uaid atainlt the Ponihility of a Surprifo. ' * The next ContradiV9(k to have milbken the Drefs of Major Dijney amonud the Nuni- bcr ofPerfons hefawon that Occafion, and yet to be very certain of his Perloni as the Pcrlon of aMan makes a much ftionger Impreflion upon the Mind and Memory of a Spectator than Im Drefa. And it imift be remembered that Macgwock has told you that ^lajor Difney was not <.nc of the Party thac drefled themfelves at Sergeant ii/rw's Houfe, and let out from thence to go to Mr. tValktr'% (in which Cafe it might perhaps be expedted that Mac^ovock (hould remtmher his Drefs exaaiy) but was one of the additional Party that came in to affirt and protect the former, whofe feveraf Drefles if can hardly be fuppofcd that he can recoUcdt with perfect Exacfiicr^. * But, Gentlemen, the main Konndatton of this Objection to Mutgwock't Tcftunony is bv no Means favourable to the Prifoner, as will appear if we confidcr it a little further. The Objec- tion I take to be as follows: y[.Acpi\oc\C% Evidence concerning Major Dil'iicy'j Drrfi U contrary to A4frs. Walker'/, andthtrtfore falfe\ and cmjequentlj the reji of his Evidence is Jiknvip etther fulfe cr doubtful. What then, is it admitted that Mrs. IValker^ Evidence concerning the Piiloner's Drefs on that Occafion is true? Nothing more is wanted on the Part of the Prolccution. Tiic Prifoner was prefent at the Alfault in z. Canadian Gown according t) W:^. lf\itl-cr\ Evidtnc?; and Macgovock has been miftaken in his Dref?, and deferves therefore iio Cicdit in any other P.ii: of hisTcltimony. Let then his whole Evidence be fet alide as doubtr'ul ami good f(>r nothing, fince Mrs, fVaiktr's Evidence is thus admitted to be true. But if Mrs. Walker^ Evidence is not allowed to be true if the Pcrfon fhe faw there in a Canadian (}own was not Major Difney^ but fome other Pcrfon then where is the InconfiiK'ncy of her TeiUmony with that of Macgovock^s} She may have been miilaken in the Perfon (he took for the Major, and Mt the Major may have been there in a different Drefs, that is, in a BJanket-Coat, according to Macgdvock'% Evidence. The moft that can be made of this Objcdtion, if a milbke abt)ut the Pnfoner's Drefs can be thought to be of fuch high Importance, is to get rid of the E\ idejicc of one ofthefe two Witnefl'cs; in which Cafe the Profecution will rell upon the Evidence of the other of them an^i of Mr. IValker. ' Thefe are, as far as I can retolledl, the principal Contradictions in the Witnefs Afacg'-vock's Evidence on which the Gentlemen of Counfel with the Prifoner have infdfed : And, I prtTumt-, Gentlemen, after what has been offered to your Confidcration by way of Reply to the Confc- quences that have been attempted to be drawn from them, that you will be cknuly of Opinion that they do not materially afted^ the Credit of the other Parts of this Witnefs's TeiHmony. But, as has been before obferved^ ihe whole Evidence of this Witnefs might very well be fet afidc, if there was Reafon for it, and yet the remaining Proof in fuoport of the Profecution would be more than fufficicnt to be the Ground of a Convidtion, being' the pofitive Teftimony of two Witncfics of indifputable Credit, Mr. and Mrs. JValker^ who have fworn that they faw the Prifoner in Mr. fValker's Houfe at the Time of the Afiault. This is a folid and fubftantial Proof in iiipport of the Profecution, which neither the imperfedt prefumptive Evidence of the Prifoncr's Alibi, given by Witnefies ftrongly byafied in his Favour, and by the Wives and Daughters of his Fellow-Prifoncrs, nor the Miftakes of a third Witnefs (though they had been M * as m '%. 46 * at important as they haive been (hewn to be inconfidcvable) can impeach. One Thing otilv csn * be aliedgcd to diminifti the Weight of it and plead fomewhat in the Prifoner's Favour, wnich, * I doubt not. Gentlemen, has already occured to you: I mean theCircumftanceof thePrifoner'a * being faid to have been difguifed by a Crape that covered his Face. This, it may be thought, * mud have made it difficult for Mr. and Mrs. ff'aUer todii'cern the Features of his Facet with> * out which it is pofliblc, and, in Favour of Innocence, might perhaps be prefumcd, that they * had midaken fome other Man that refcmblcd the Prifoner in Size and Shape, to be the Prifoncr * himfelfi and that the Hurry of their Spirits on (uch an alarming Occafion had ftrengthened the * impreflion made by fuch a Rcfcmblancc and contributed toconHrm them in this Miftalie. This * is, in mv Opinion, the molt important Confidcration that can be offered in the Prifoner's Fa- * vour. But, Gentlemen, in Anfwer to it 1 muft obferve, that both Mr. and Mrs. ff^alker have * fworn that they diftinguiOied the Features of his Face ^ which takes away all Room for fuch a * Midake. And that it is by no Means difficult to difcern a Man's Features through a Crape you * w»ll ealily be convinced upon trial. Mrs. IValktr has brought here into Court a Piece of Crape * of the fitme Kind with that which was drawn over the Face of the Man fhe took to be the Pri- * foner (and which is of the fame Kind that Officers wear upon their Arms for mourning) in * Order to enable you to make this neccflary Trial. Take this with you. Gentlemen, when -you * withdraw to conttder of your Verdict on this important Occafion, and try yourfelves how far it *■ is capable of concealing a Pcrfon's Features. I believe you will And it to be but a poor Dif« * guife, and will foon be of Opinion that Mrs. fValier, at the Diftance of about ten Feet, and * Mr. IValker at that of only four Feet, might very well have been able to difcern the Features *■ of the Perfon upon whom they fixed their Eyes to have been thofe of the Prifoner at the Bar.' The Actorncy-General having ended his Reply, the Chief-Juftice fummed up the Evidence to the Jury, who, after withdrawing for about half an Hour, brought in the[r Verdidt that the Prifoner was Not Guilty: and the Prifoner was thereupon difcharged. Cr'HIS Day perfmally appfored before me Ifaac Todd, Efq\ one of His MajfJ}y'sJuJ}ict$ of the •*■ Peace^ Mr. John Welles, Mtrchant^ and made Oath on the Holy Evangelijh^ 7%at the annexed is an exait Copy of the Evidence on the Part of the Crown, andalfo on the Part i?/" Daniel Difney, Efy; as taken down hy him in Short -hand the Day of Tryal, at the Court- Houfe in the City of Montreal, on Wednefday the Eleventh /)<7y o/" March ; and that there is not, to thehejl of his Knowledge and Beliefs uny Thing either added or diminijhed; and that what Evidence was delivered in French, was taken down us interpreted hy Air. Gallwey, fworn Interpreter. (Signed) JOHN WELLES. Sworn before me, this 23d March, 1767. (Signed) Isaac Todd. FINIS. |;o!i1tcsii ur, wnich, Prifoncr't e thought, ice I witho that they le Prifoner thcned the ike. This oner'f Fa- 'alktr have for fuch a Crape you e of Crape f the Pri- irning) in when you how far it poor Dif- Feet, and e Features le Bar.' ! Evidence ^ that the Vtcis of the the annexed ifney, Efy; on t real, on and Belief., taken down LLLES. •^'i^I*'',' %. • ■■'»:; •!;'■- ./^ '.'■>>,■■« *.y