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Les diagrammes suivants illustrent la m6thode. 1 2 3 1 2 3 4 5 6 7"' 4fl' •■^^ r PRESENTED ■> 1 1 !•• BY DAVID RICABDO5 ESQ. 1, — "'Ii»*»l .IIH. ■ "'Mfc' /'• REPORT OF THE PROCEEDINGS CONNECTED WITH THE DISPUTES BETWEEN THE EARL OF SELKIRK S AND THE NORTH-WEST COMPANY, AT THE ASSIZES, HELD AT YORK, IN UPPER CANADA, OCTOBER 1818. FROM MINUTES TAKKN IN COURT. !<•»■ MONTREAL: PRINTED. LONDON: RB>PRINT£D BY B. M'MILLAN, BOW-STREET, COVENT-GARDBN, Printer to His Royal Highness the Prince Recent. SOLO BY EGBRTON, WHITEHALL; SHERWOOD, NEELY, AND JONES, PATERNOSTER-ROW ; AND J. RICHARDSON, ROYAL EXCHANGE. 1819, * \i RAK& tk n, Tt'L /tf-i ADVERTISEMENT. In reprinting this Report of the recent Pro- ceedings in Upper Canada, connected with the Disputes between the Earl of Selkirk and the North-West Company, the Agents of that Company have to state, that the Minutes of these Proceedings were taken by a sworn Short-hand Writer, employed under the sanction of the Court, and on condition of furnishing the Court with a Copy of his Minutes, in the event of any Convic- tion taking place. The Report and the Appendix^ therefore, are to be considered as Documents strictly Official ; and the Preface, and Notes, reprinted from the Montreal Edition, are the only Comments offered by the North-West Company, in answer to the numerous Calumnies with which they have been assailed through i} a >nedium of the Press, as well as by ex-parte Stateiiients in the House of Com- mons. When the Papers lately laid on the Table of that Honourable House, are printed for the use of the Members of the Legislature, it will be ~;ius*d4'*^^' ■ seen how far these Calumnies urc sii|)pui-le(l by the Documents bearing upon the Case ; and when the Agents of the North-West Company shall be acquainted with the nature of these Docu- ments, if it shall appear that the conduct of those with whom they arc connected requites further explanation^ they will take an early opportunity to offer the same. In the mean time, they entreat the attention of the Public to the Reports of the Trials which have taken place; and they request that the Cases made out in evi- dence before Juries, may be compared with the aggravated Statements and ex-parte Affidavits, previously published, and industriously circulated by the Earl of Selkirk and his Agents. They also request those who may take any interest in the question, to compare the recently published Narratives of Mr. Pritchard, the late Petitioner to the House of Commons, and his Associates Mr. Pambrun and Mr. Heurtre, with the Evidence of the same persons, subjected to Cross- Examination in an open Court, and contrasted with the testimony of the Witnesses for the De- fence. It appears that the result of this compari- son, on the Trials, induced the Juries to reject the Evidence of these persons as unworthy of be- "■^^■^'-'' VII lief; and considering the circumstances under which their Narratives are now produced, and pending the Legal Investigations which are still at issue, as well as the Parliamentary Proceedings which have been instituted, it is submitted, that no impartial person can give credit to ex-parte Statements, resting on such suspicious authority, and manifestly published with a view to prejudge a question depending on Official Documents and Legal Decisions. I" 1 r I t • • • . , • • . . • ', , •• • • riiEFAici:. The arrest and imprisonment^ by the Earl of Selkirk, of several Partners, and people in the service^ of the North- West Company, at Fort William, in August, 1816, upon charges of " high treason, murder, robbery, and conspi- " racy," is well known to the public; and the proceedings by Indictment and otherwise, against them, and numerous others, their adherents, which have subsequently taken place, have equally been frequently detailed in the public prints of Canada. The Trials at York, in Upper Canada, of which this volume contains a faithful report, now de- monstratively exhibit the utter futility of those charges ; and the long period that has elapsed between the time they were brought, and that when the trials upon them have taken place, is an additional proof, if any were wanting, of the oppressions, under colour of law, to which Lord Selkirk hat^ subjected the North-West Company. The records of the Secretarys' Offices of both Provinces, will shew that it was ever the anxious wish of the parties accused to have speedy justice dune to them, that they might ^tJl [■/ I .'.•.Itayc.aii e&Hy .p.{)^ortup,ity of establishing their inh6c'eikt,ej\find ii^is'pitii^ps.'jane of the strongest ipijfances of the Vpeirversion 'of legal remedies, thc^t his Lordship has been enabled to keep prose- cutions hanging over individuals for upwards of two years^ without deigning to furnish the Crown with any evidence to substantiate his accusations, till compelled by Government. As the principal part of the evidence neces- sary to the defence of these parties ( and in fact, also, that which was to be brought against them), was either to be found in Upper Canada, or was to be procured from the Indian Territories, it appeared that ''justice could be more conve- " niently administered" in that Province than in Lower Canada ; and^ as far back as March 1817, application was made to the Governor-in- Chief, then Sir John Coape Sherbrooke, to di- rect the removal of these cases thither. It seems, however, that His Excellency judged it expedient to consult the Government at home, so that it was not till the 24th October, that (the reply being favourable to the removal), Great Seal Instruments were issued on the first Petitions, and on the 20th November, and 7th February following, on others presented by per- sons subsequently accused. All this while the documentary and other evi- dence, which Lord Selkirk affirmed that he pos- sessed, as the ground of these proceedings, was kept back by him, leaving the Law Officers of the i) U. CVl- |pos- r the Crown in both Provinw,. ^o J5ortiplain..of .b.cing unable to discLargJitfieirau.tjr.to thp; •J^iiblic and to the accused. Strong remonstrances were repeatedly made to the Governments of both Provinces, on the sub- ject of the mischievous and oppressive delays com- plained of. The Attorney-General of Upper Ca- nada, in his report in reply, dated the 10th March, 1818, says, " We were then," (referring to a previous statement made to the Governor of Upper Canada, on the subject), '^ compelled to '' state what I can only repeat now, that we were " not only totally unprepared to enter upon the *' prosecutions in question, but that we were also *' without any means of knowing when we could " be prepared." — ''We could not advise an inde- " finite number of prisoners charged with offences " of which we knew only by rumour the general " character, and none of the particular facts, to be " hastened hither for trial, while we were unfur- " nished with those means of drawing up the In- " dictments, and enabling us to conduct the pro- " secutions, which we take care to have, and " which decency in the administration of criminal •* justice, requires we should have, in every cora- " mon larceny." — *'We had received information, that copies of all the depositions were prepar- ing for us, which, with the other information we required, we expected to receive before this " time. But I am yet without these necessary in- ** structious." And he adds, '' I know no rca- (t f( t€ .'JJ XII • • • • • •' ••f'.* Von*. bAit chat -jVlrich* it. is scarcely fair at this " tiiiil3'ta^.i|ve'.io*the pfrs6u€f.%' (uamelj'j that we " are yet quite iibprepared to try tlieni^ and ** know not how long we may be suffered to rc- " main so)^ why the 20th of April," (which was the day prayed to be appointed for the trials), " might not be named for the opening of the " Court." Memorials in behalf particularly of those of the accused who were suffering under protracted imprisonment, accompanied by this report of the Attorney-General of Upper Canada, were pre- sented soon after to the Governor-in-Chief. In reply. His Excellency caused it to be stated, that as it appeared from that report, that " no pro- " ceedings had been commenced in Upper Canada " against them, he should not feel justified in rc- '' leasing them from prison, and sending them to Upper Canada, until at least the private pro- secutor, in whose hands teas the information ne- cessary for instituting such a proceeding, should be called upon to furnish the Crown Officers of Upper Canada with such parts of it as they might require. This information being, as His Excellency understood, to he given by Lord Sel- kirk, the Law Officers had been directed to call on his Lordship peremptorily to transmit the same to Upper Canada without delay, and to intimate to his Lordship, that unless within a further reasonable time, the Crown Officers of Upper Canada were furnibhcd with the evidence tf a €( (t ^^ (f €t tt it ^ XUI re- *' necpssary for the commenceraonrtof'pi'o'ceediog* " there. His ExceJleocyVwtHild Tejel ^.u^lfictl in " ordering the discharge of dije.PeHtibners." His Excellency further intimated,' that if proceedings were not commenced against them in Upper Ca- nada before the end of June, he should consider them entitled to their discharge. The Attorney-General of Lower Canada also, in reporting, under date 19th June, 1818, to the Governor-in-Chief, in reply to a further remon- strance, which was made in that month, states, that " the private prosecutor, the Earl of Sel- " kirk, who alone possessed the evidence in support " of these prosecutions, had been absent from *' the Province, and since his return, his time *' had been very much occupied with the sit- *' tings of Criminal Courts, both at Quebec and " Montreal." Here it is worthy of remark, that during up- wards of a year subsequent to the arrest of these individuals, the private prosecutor was occupied, nodn attending '' the sittings of Criminal Courts ** at Quebec and Montreal," but in acts of un- precedented violence and depredation, which were only checked by the Prince Regent's Proclama- tion, and by the measures prescribed by His Ma- jesty's Government for enforcing it; and then, instead of returning to this Province with the Special Commissioner, to meet the accusations against him, and to establish his charges against others, " the evidence in support of tvhich he alone XIV I , ■ '.'[.po'isesMr'i li«:Went on a tedious and circuitous •j'oO/iife^/.fQr his*6wii.pcjvWle5,'pJurposes, and did not get to ivibnW©kr.MH':FebruaVV 1818; whilst his Lordship's subsequent occupations in the Cri- minal Courts of Lower Canada^ whether as a public informer^ or private prosecutor^ could afford no valid answer to persons complaining of a grievance in the delay of justice. Dragged at length into the arena^ by the de- termination before alluded to of the Governor- in-Chief, to consider the parties imprisoned as entitled to liberation^ if proceedings were not instituted against them within a given time> his Lordship was compelled to take measures for commencing such ; and the result of these pro- ceedings constitute a triumphant vindication of the parties accused^ and a conclusive demonstra- tion^ not only of the obvious motives in which these frivolous and vexatious charges originated^ but also of the iniquity of the means employed in bolstering them up, by every insidious art to pre- judice the public opinion. Instead, however, of making his appearance as the private prosecutor in these causes at York, where he was anxiously expected, up to the very hour of the commencement of Brown and Bou- cher's trial, his Lordship disappointed the Crown Officers, his own Witnesses, and the Public ; and, although he started from Montreal, in the direction of Upper Canada, he soon after turned off to the left, and proceeded by way of New- XV York to £ngland3 anticipating; >n(}|.'d0Ubt'> this , signal defeat, and iiasKblfiVto 'withstand' , the. ifa'oirti- fication of witnessing it in pesrgpn. *•.* • It will be observed, that amongst these trials, is thaiu of two of Lord Selkirk's Settlers, ( Cooper and Bennerman), who craved a conveyance from the North- West Company, and left the Red River for Upper Canada. They were included in an Indictment with several others, for stealing cari' non, on the merits of which there is no occasion to say any thing here, as they will speak for themselves on a perusal of the evidence. This trial has in fact no direct relation to the disputes between Lord Selkirk and the North-West Com- pany; but his Lordship having all along endea- voured assiduously to impress on the public mind^ the idea, that the desertions which took place from his Colony, were wholly to be ascribed to the per- ' suasions and enticements of the North- West Com- pany, the evidence produced on this occasion ( which might have been multiplied to an indefi- nite extent, by the numerous other individuals who, having escaped from Red River, are now settled in Upper Canada), will clearly demon- strate, that it was the wretched state of misery into which these deluded people were plunged, and the oppressions they suffered, that produced the spirit of dissatisfaction prevailing amongst them, and induced them, some to find their way out at all risks, through the savage tribes by way of Fond du Lac, others to lay a plan for escaping \\ iii ■i \i 1 ; XVI .-. b.3; the ''It^ifitisMp^i into the United States^ and * t4/e*e|tHfr8.to appFy4t>.*Jb)if( humanity of the North- West Cbinpan^'s*'ji|,eDple/'to'*give them a passage to Canada. This testimony of their sufferings^ and of the deceptions practised upon them by the Earl of Selkirk and his Agents^ comes in ample confirmation of the prophetic view taken by the Honourable and Reverend Dr. Strahan of York, in his able Letter to the £arL relative to his Red River Colony, published in 1815 ; and upon the whole, both vtrith respect to those delu- sions, and to the calumnies heaped upon the North- West Company, it will now be found, that the veil is rent asunder, the mask is torn away, and the vile deformity they have hidden, is ex- posed to the view of the world. XVll For the Explanation of some technical akd Ivcul leri/is and phuise^t made use of in these Trials^ A (>iio^s*AnY is sAbjqifttd, ef such as are not familiar to general reader^, 'vus. ' * ' Anjflois. — An Englishman, the English, but applied exclusively to the ser- vants of the Hudson's Bay Company, whether English, French, or Half- breeds, in contradistinction to the fur-traders from Canada, who are called FrangoiSf of whatever country or language tuey may be. Arpent (as a measure of length) — 180 French feet. Jialeau. — A boat or barge, which are only used on the large navigable lakes and rivers of the country : they are flat-bottomed, and carry about four or five tons. liois-bruUs — See Half-brecda. Bourgeois. — Master, employer; applied both, specially to the person (whe- ther partner or clerk) who has the command and superintendence of a trading-post, or of a canoe, and, generally, to persons ranking as gentle- men, or above the class of servants. Brigade. — A fleet of canoes, bound to or from a particular trading-post or department. Capote. — A great coat. ConseiL — A council ; generally applied to the formal meetings between par- ties of Indians, or between the traders and Indians. Department. — Portion of country, the trade of which is placed under the special management of one or more partners or bourgeois. Engaff^. — An engaged servant: applied specially to the Canadians who en- gage as voyageurs or voyagers for a term of years in the service of the fur- traders. English.— See Anglois. Equipement. — Equipment ; the clothes and other articles furnished yearly to the clerks and servants of the fur-traders, every individual in their em- ployment receiving an equipment proportioned to his station. Fort. — The trading-posts are always called forts, though in general no other- wise fortified than by being placed in a square inclosure formed of pali- sades or pickets ; indeed every house in the Indian country is called a fort. Frangoia. — A Frenchman, the French, but applied exclusively to the Cana- dian fur-traders, of whatever nation, to distmguish them from the traders who come from Hudson's Bay, who are called Anglois, English. Freemen. — Canadians and others (not Indians or Half-breeds) who reside in the Indian countries, as hunters, fishermen, or farmers, and are not en- gaged servants of the fur-traders. Half-breeds, Mitifs, Bois-bruUs. — The names given to the mixed population which exists in the North- West, arising from the connection of Europeans or Canadians with the Indian women. These appellations are synonymous. The first is the English one ; Mdtif'is a corruption of the Spanish Mestice, and the term of Bois-bruU is said to be derived from the sallow complexion of the Half-breeds being compared to the appearance of a forest of fir- trees that had been burnt, an occurrence frequent in those parts, and which assumes an universal brown and dingy colour. Hangard, — An out-house of any description, whether a shed, a pent-house, or a closed store, in which goods are deposited. Hommes libres, — Freemen ; see Freemen. Marcki', march, a day's march. — The distance a canoe goes in a day. Motifs. — See Half-breeds, North-Canoe. — A canoe calculated for the shallow rivers, and difficult navi- gation of the interior; it is about half the size of a Montreal cawie, or one used in the navigation between Montreal and Fort William. b S:' f t XVIIl P«VitKi»i.7«-*f hc^eat ©Sjmffaloes, or moose-deer, dried t • witji urease \)r tat;. it 4t^enerai(y^ put into bags made ' ', •cMtaiTemret^ftx : it'Ts lli« jiiSiymqJ anti^e of food — '^al^^l%cd•;,and1^di»n8 ia'tlie UOffi'tfnt, when season. ' * \ •,/ ..* .♦, • and pounded, mixed out of the hide, and amongst the engages, travelli- ;; in the open Piece. — A package made d^fqr the North-West, weighing about 90 lbs. for the convenience of carrying across the portages. P*rtage.—A. carrying place. Prairie,— A level tract of country without wood. Show £Amen. The term applies also to the traders themselves. I i C'-' ^jfii'i: -**•-. -w.- i-r " TABLE OF REFERENCE. \] TRIAL qf PAUL BROtVN and F. F. BOUCHER. PACE Charge to the Grand Jury l Indictment found against sundries for Murder of Robert ) ,- Semple \ Ditto againt sundries for Arson 6' Ditto against Paul Brown for Robbery 6' Argument on issuing Process of Court againt Accessaries, ) _. and on Recognizances entered into by them ) Great Seal Instruments produced 12 Argument continued 13 Indictment found against sundries for Larceny 24 Ditto ditto ditto for maliciously Shooting 24, Argument resumed 24 Accessaries bailed 32 Prisoners put to the Bar 32 Indictment found against sundries for maliciously Shooting 33 Ditto against sundries for Murder of Alexander M'Lean 34 Ditto against Paul Brown for Robbery 34 Argument on bailing Accessary to Murder, before the Fact 34 Decision of the Court thereon 41 Names of the Jury 42 Counsel employed , 42 Address to the Jury by the Crown Officers 43 Michael Heden's Examination 54 Argument as to Evidence produced of after-occurreoces 6l Examination resumed 63 Cross-Examination 65 Argument as to extension of Evidence to remote circum- 1 stances and events, and on the state of Warfare ex- > 6G isting in the Country 3 Decision of the Court thereon 77 Cross-Examination resumed 79 Argument as to styling Robert Semple Governor 80 Cross-Examinntion continued 82 Re-Examination by the Attorney-General 84 Donald M'Coy's Examination 85 Cross-Examination 87 <; t, XX fAOF. lle-Examinatioii b)* the Attorney-deneral 89 John P. Boiirke's Examination 89 Cross-Examination 91 Argument on the production of Miles MacdoneH's Pro- ) „. clamation ) Decision of the Court thereon 97 Miles Macdonell's Proclamation of 8th Jan. 1814 .... 98 Cross-Examination contiimed 100 Re-Examination by the Attorney-General 102 Hugh M'Lean's Examination 103 Cross-Examination 1 04 Patrick Corcoran's Examination 104 Cross-Examination 105 P. C. Pambrun's Examination 1 07 Cross-Examination 112 Letters from Robert Seniple to A. Macdonell 113 Cross-Examination continued 114 Re-Examination by the Attorney-General 1 16 F. D. Heurter's Examination 116 Cross-Examination 117 John Pritchard's Examination II7 Letter from Cuthbert Grant to J. D. Cameron 123 Note to the above, and Treaty made between the Hud-) .„. sou's-Bay People and the Half-breeds, in 1815 .... 5 Examination continued 1 25 Cross-Examination 1 26 Letter from O. Holte to John Pritchard 128 Cross-Examination continued 128 Hon. Wm. B. Coltman's Examination 129 Cross-Examination 1 30 Charles Bellegarde's Examination • 130 Jean Marie Mondelet's Examination 131 Argument as to the reception of Boucher's Declaration be- ) , ^^ fore Mr. Mondelet j * "^ Decision of the Court thereon 135 Conversation relative to the construction of the Great) ^„g Seal Instruments j Louis Nolin's Examination 140 Cross-Examination 142 Argument as to the mode of conducting the Defence . . 143 Louis Blondeau's Examination 149 DEFENCE: Commencing with Henry Forrest's Exami- ) .£. nation 3 John Macdonell's Examination 152 Cross-Examination • 154 John Pritchard's second Examination 155 Letter from Robert Serople to John Pritchard 155 1 I'Aor. £xaniiiiatiuii continued 156 Letter from Colin Robertson 1 56' £xaniination continued 1 57 Letter from Miles Macdonell to C. Grant, in Note .... 158 James Tooiney's Kxainination 158 Obiections to mode of conducting Defence, and Answers ) ._ thereto { ^^^ Extract of a Letter from Lord Selkirk from Sligo, in 1812, / .^. in Note ) Hugh Swords' Examination 1 6'3 Cross-Examination l63 Re-Examination by Mr. L. Sherwood i6'4 William Wallace's Examination i ()5 James Pinkman's Examination i6'5 Cross-Examination 1 6'6 Toussaint Vaudrie's Examination i O'r Cross-Examination j 0*9 Donald M'Donald's Examination i6i) Martin Jordan's Examination 1 70 Cross-Examination 172 Bill of Indictment found against sundries for stealing Cannon 173 Antoine La Pointe's Examination 173 Cross-Examination 1 75 Jean Baptiste Roy's Examination 176 J. B. Branconier's Examination 1 76 Hon. Wm. B. Coltman's second Examination 1 77 Diagrams of the Ground produced 173 Aiiidavits in elucidation, in Note, viz. William Smith's, recording the Commissioner's Visit to the ) Battle-ground J * ^" Peter Fidler's Survey of the Ground 1 8 1 B. Fontaine's and Fran9ois Bono's, relative to the Battle 1 83 Nicholas Ducharme's Examination 1 82 Cross-Examination 184 Hon. W. B. Coltman's Cross-Examination 1S5 Rc-Examination by Mr. Sherwood 186" Michel Martin's Examination 1 87 Cross-Examination 1 89 Joseph Lorain's Examination igo Cross-Examination It; I Alexis Bercier'a Examination 191 Cross-Examination ly 1 Winifred M'Nolty's Examination i<)2 Cross-Examination j y2 Hugh Bennernian's Examination . i<)3 Cross-Examination j (;3 Hon. William M'Gillivmy's Exaniin.n ion j <)3 c2 I I' A or. CIIAUfiE TO THE JURY I»4 Qutfstiun of Jurisdiction 21/ Verdicts of Acquittal 230 Speech of the Attorney-General upon entering u noli pro- ) -o/i aequi upon other Indictments \ Trial of Paul Brown for Robbery of Michael Heden, and \ ^^, his Acquittal ) TRUL OF THE ACCESSARIES. u Names of the Jury 3 Address to the Jury by the Crown Officers 4 Argument as to the species of Evidence to be produced lU Michael Heden's Examinatioi 12 Cross-Examination l6' Donald M'Coy's Examination 20 Cross 25 V foScr ••••••••••••• w O Ditto ditto of George Campbell, John Cooper, Donald ^ M'Kinnon, Hugh Bennerman, Duncan Cameron, f John Dougald Cameron, Cuthbert Grant, William t ' Shaw, and Peter Pangroau j P Proclamation of the 16th July, 18 16 40 Q Ditto ofthe3d May, IS17 41 R Jurisdiction Act , 46 se ) 200 200 201 20'2 >'l 1 3 } 11 I •»« --\ r \i.- u ■ , ■■(' ( '; . •. / ?t 1 ■• I H I i i ^ I \ ■■ 'J .'; ,1 j< X f\ a A M^MMMMn^r^b^ ft' .'i.'.'^i-U'.- TRIAL OF PAUL BROWN, AND FRANCOIS FIRMIN BOUCHER, ,/'^l -•'^ '*"■"*"-». ^ik,-.»_^-.;,^.,^.^,„^.^ ••-. + ^^ "t -■'-^-^'Y^*^. a i n ? ? PROVINCE OF UPPER CANADA. HOME DISTRICT. Session of Oyer and Terminer y and General Gaol Delivery y held at York, in the Home District, on Monday the i9th of October, 1818. PRBSKXT : His Lordship Chief Justice Powell, The Honourable Mr. Justice Camphell, The Honourable Mr. Justice Boulton, The Honourable James Baby, Esq. 1 Justices of the Peace for William Allan, Esq. j 'he Home Dutrict. The Commission, (Appendix A.) under the Great Seal of the Province, was read, after which the Grand Jury were sworn in, and charged by his Lordship the Chief Justice ; the substance of which Charge, as far as related to the trials of offences committed in the Indian Territories, was as follows : Gentlemen of the Grand Jury, In addition to your ordinary function of delivering the gaol, and enquiring of crimes committed within this Dis- trict, you will be called upon, under the provisions of a statute of the United Kingdom, passed in the 43d year of His Majesty's Reign, to enquire of crimes and offences charged to have been committed in territories not within the limits of the Home District, or of the Province. To give this jurisdiction to this Court, the statute makes it necessary that the Governor of Lower Canada should, by an Instrument under the Seal of that Province, declare that justice may be more conveniently administered with relation to any particular crime or offence in Upper, than in Lower, Canada. Under such a declaration, which will be manifested to you by production of the Instrument, charges will be ex- hibited against various individuals for the highest crimes. B »> ( ' i niurdcr, robbery, and nrsuii, not only as I'rincipals, or actual perpetrators of the crimes, but as Accessaries before and after the Fact. It must be unnecessary almost for the Court to enter upon an explanation to you, CJentlenien, who have so long and so properly exercised the function of Grand Jurors, of what constitutes these otfences. Murder is that aggravated homicide, which is of fore- thought malice, and wants all the alleviating circumstances which the tenderness of criminal law admits to qual-'y ho- micide into manslaughter excuseable, or justifiable. This malice the law presumes, where the evidence of the fact shews not the contrary, therefore it is usual so to cimrge the homicide in the indictment, leaving it to the accused to shew, on his defence, to the petit jury, or jury of trial, the alleviating circumstances which, in their judgment, may constitute only an inferior oflFence. Robbery, you well know, is larceny, aggravated by force. It is the for- cibly taking and carrying away the money or gpods of ano- ther, against his will, from his person, putting him in fear, of whatever value the goods or money may be, and it may be, if the goods or money were not upon the person, )but taken in his presence, by force, feloniously, and put- ling in fear. Robbery so defined is a capital offence in the actors present, and in the accessaries before the fact. Arson is the wilful and malicious burning of the house or out-house of another. Under this general definition is comprehended all out-houses, barns, and stables, that arc parcel of the dwelling, though not contiguous to it, or pnder the same roof. But, to constitute this offence, it must be done maliciously, and not by accident, and there must, besides the attempt to set fire, be an actual burn- ing, however small the consumption. This is also a ca- pital offence in principal and accessary before the fact. Gentlemen, in the course of this investigation you will find facts charged as felonious, and wearing such an appearance in every respect, wanting perhaps that which ought to constitute felonious robbery or larceny, the animus furandi, and wanting that, the taking the goods of another, without his consent, is, in law, a trespass, and the nice shades by which the same act may be distinguished to be trespass or felony, is properly of the consideration of the jury of trial, since you can scarcely receive light from the ex parte testi- mony of the prosecutor, to shew that what he charg'^s as fe- lony is merely trespass; but, should that appear satisfactorily to you, aiid tliat there was no intention to steal, no animus Jurandi in the taking-, you can not conscientiously put the accuscii to answer. 'I'he prosecutions are remote from the scene of action, and the facts charged to have been coui- niitted in the Indian Territories, visited by rival traders, where you can hardly expect to meet with impartial rela- tions of facts; but that is the consideration of the jury of trial, who will weigh the credit of each witness. Your duty is also to decide according to evidence, but you are not expected to sift it so closely. It is sufficient for you to ascertain by evidence, that the fact charged has been com- mitted, and that there is strong probability that the ac- cused is the perpetrator. (lentlemen, the publicity given to the details which are to be laid before you, by dispersing in pamphlets the depo- sitions of witnesses taken before the magistrates, may have presented them to you, and made impressions on your minds favourable or unfavourable to these prosecutions. I need not tell you, that it is a first duty on your part, to divest your minds of all such impressions, and bring them to the legal enquiry, free and unprejudiced, so as to receive the evi- dence brought before you without bias, and to weigh it with the strictest impartiality, never forgetting, that your busi- ness is merely to enquire and report the truth of the fact, and the probability of the charge to be such, as should put the accused upon his defence. There is also, I find, in the docket furnished by the Crown Officers, a Hill against more than twenty indivi- duals, for a conspiracy to subvert the Settlement at Red River, also in the Indian Territory, and which must be sub- jected to the jurisdiction of this Court, and your considera- tion of it must be guided by the same course as the other crimes charged to have been committed there. Conspiracy, strictly speaktng, is an odious combination or concert, of two or more persons, to charge others with a criminal conduct which might expose them to danger from prosecution. But, in a wider view, the law considers as conspiracy, all concert and confederacies whatsoever, wrongfully to prejudice a third person, and subjects the conspirators, when convicted, to the heavy penalty of fine and imprisonment, and in certain cases, to infamous and corporal punishments. This concert may be without direct personal communication : any evidence which demonstrates that tliere was confederacy between the parties accused, to effect the criminal purpose, although that purpose should not have been actually effected, constitutes the offence of conspiracy, of which the overt-acts are confirmation. ^y-i UCHER, J ELL, '\ iRRE, andr as Principals ; as Accessaries before, and TJiursday^ 22d October , 1818. Indictments CAppendix, B, C, and D), were found by the Grand Jury against CuTHBBRT Grant, Louis Pbrrault, Paul Brown, and Francois F. Boucher, Allen Macdonell, John Siveright Seraphim Lamarr Peter Pangman Alexander Mackenzie, ") John McDonald, | Simon Fuaser, | Allen McDonell, j Seraphim Lamar re, Hugh McGillis, John McLaughlin, William Shaw, John Siveright, and Peter Pangman, for the Murder of Robert Semple, Esquire, on the \9th of June, 1816; George Campbell, 1 as Principals, for Arson, Cuthbert Grant, and > on the 28th of June, William Shaw, j 1815j (JTie Indictment against Duncan Cameron, as nieces- sary before the Fact, being thrown out), And against Paul Brown, for robbery in a dwelling- house, < h as Accessaries after, the Fact, t f Friday, 23d October, 1818. An Indictment against George Campbell, Robert Gunn, and Hector McDonald, was returned by the Grand Jury— No Bill. for maliciously shooting at Miles Macdonell, Attorney -General. — I rise to move the process of the Court against the persons on the Indictment which the Grand Jury returned yesterday. Brown and Boucher, two of the principals, are in custody. I therefore move that process do issue against Cuthbert Grant, Allen M'Donell, — Mr. Sherwood. — I beg leave to state to the Court, that the Gentlemen against whom the Attorney-General is moving that process do issue, are merely charged as accessaries, and they are all here upon bail. I believe it is never usual to move the process of the Court against accessaries, until con- viction has taken place against the principals ; but even were it the customary course, still the very different circum- stances under which these Defendants stand, would com- pletely set it aside. These persons have all been admitted to bail, have entered into recognizances which have been taken under the high authority of the Governor-General of the Canadas. Whether this bail or these recognizances are ^ood or bad, is not now to be a question, it is sufficient that they have been taken under the highest authority, and that, in fulfilment of the obligation imposed by them, these Gen- tlemen are present in this Court. It is therefore incompe- tent to the Attorney-General to move the process of the Court against persons, who, in their presence, are fulfil- ling the obligation which they have entered into of appear- ing before the Court. But why should it be moved ? they are all under bail, under bail in such sums as appeared ade- quate to ensure their appearance here, and they do appear. At any rate, till the principals are convicted, in no case, under no circumstances, is it customary to attach accessaries. The principals, or two of them, are in actual custody of the Court, and till they are convicted, I contend, a capias ought not to issue against those charged merely as accessaries, and who come forward and say. Here we are. Till authorities are shewn for such a course, I should think your Lordships will not sanction the application. These persons do not appear here in the ordinary course of things ; the charge has been preferred against them in the Lower Province, a part were taken into custody, and a part were put under recog- nizance, and in this manner they have been transmitted by the government below, under the authority of the Act, the special Act under which they are indicted. It is, I have as- serted, not a usual course to move the process of the Court against accessaries ; then I ask, can any reason be assigned for doing so in the present case ? Can there be any reason given for their being taken into custody here, when tlie go- vernment of the Lower Province have admitted them to bail, and they fulfil their recognizance by appearing here? They were once in custody, and were sent below, and there a part were detained in confinement, and the others were liberated upon giving security. I advance then, that the principals alone having been sent in custody by the go- vernment of the Lower Province, whilst the accessaries ap- Eear here in obedience to the recogniz&nces into which they ave entered, under the sanction of the high authority of the Governor-General, in addition to the argument, that it is not usual to take accessaries into custody till after the con- viction of the principals; I advance, that these Gentlemen stand merely like persons accused of a misdemeanor, and having given bail, and appeared in Court, it is not coiripe- tent to this Court to issue their process against them. The Indictment under which tliev are charged, is preferred un- der a particular Act, from which this Court derives itsautho- rity, and which is a special act of conferring jurisdiction. Chief Justice Powell.— These proceedings being founded on a special act, we must have the authority under which we are to take cognizance of them. Mr. Sherwood. — 1 trust in the contest of these rival Com- panies no measures will be resorted to, calculated to gratify those vile passions, which unfortunately mark the conduct of some persons. Attorney General. — I know nothing of rival Companies, or of disputes between them. In the discharge of ray duty I know nothing except what I obtain from informations placed before me, and from the returns of the Grand Jury. They have returned as true, a Bill of Indictment for murder, against a n^imher of persons who are not in custody, and to bring them before the Court, I adopt the usual course, viz. that of moving that capias do issue to take them in custody. This is the ordinary course, and it is my duty to pursue it. Whatever indulgence your Lordships may be pleased to ex- tend to them when before the Court, will be cheerfully acquiesced In on my part, but it is with your Lordships, and not with me. I know nothing of this, any more than any other case, but from the Grand Jury ; and to bring the per- sons whom they accuse by the indictment before the Court, I move that its process do issue against those who are not in custody. Mr. Sherwood.— 'Then I beg to produce high, very high, legal authority against the proposition. The authority upon which this proposition will be rested, is, I take it, the 2d ^S0^ and and 3d Edward VI. caj 24. In H: vkins, vol. ii, p. 457, sec. 1.50, (which Mr., herwood id, providing for the indictment, trial, judgn)^ nt and pui shment in one county, of accessaries to a murder commUtcu in and *t). No«' it might be, and is necessary to know if the imi »ted off* e has been committed in any county, or, us t t can no be, from the nature of the case, whether it wu, comniittals upon trial, and convicts litem nil, or proceeds to outlawry in (heir cases, he can not, according to my judgment, be allowed process against Cicntlemen charged as accessaries, who are under recognizances allowed by the Governor-General, and are moreover actually present. Chief Justice. — As the question arises upon Indictments founded on the 43d of the King, till I see that we have authority to take cognizance of the oftence and the offender, I can not proceed with the argument. Have you, Mr. Attorney-General, Great Seal Instruments from the Lower Province transmitting these persons, and the particular oflFence Bill to (The Great Seal Instniments (Appendix K, L, M, and N,) were then handed to the Court. The Chief Justice re- markedf that it had been already heldy that the Great Seed of the Lower Province proved itself, there coxdd therefore be no difficulty). Attorney-General. — I move the process of the Court against the persons named in the indictment, for the murder of Mr. Semple, who are not already in custody. Mr. Sherwood. — As Mr. Attorney-General persists in his motion, I beg to offer high, very high, authority in support of the opinions 1 have submitted, that the course taken by Mr. Attorney-General is as extraordinary and unprecedented, as it is, in the present instance, completely uncalled for. 1 produce first, Chitty, vol. 1. who, your Lordship knows, invariably refers to the authorities upon which any opinion he advances is founded, and at pages 338 and 339, 1 find him considering the nature of process in general; page 3138, he says, " Process is so denominated, because it proceeds " or issues forth to bring the Defendant into Court to " answer the charge preferred against him, and signifies " the writs, or judicial means by which he is brought to " answer." He then goes on to describe that what, before a Bill is returned by a Grand Jury, is termed a warrant, is subsequently denominated process ; that in every Com- mission of Oyer and Terminer, the power of issuing process is incidentally communicated on the sound principle, that where power is instrusted to enquire into offences, the authority to compel the attendance of the party accused must necessarily be given ; that it is founded upon the same reason that justices of the peace, whenever authorised to enquire, hear, and determine, have power to compel the defendant to attend ; but that this power docs not attach to »a" I 1 • proceeds k' ig to iny H I thurj?od n ed by the 1 ent. s Jictmonts 1 we Imvc n offender, "1 you, Mr. i ic Lower pnrticiihir '"„ cd a trur \ , M, and ustice re- i treat Seal i ertj'ore be 1 16 Court 1 »e murder '1 1 ists in Ills A" 1 support :- taken by ^ redentcd. d for. I ;| ) knows, ,;| ' opinion 'i ), I find '^1 age :338, % proceeds M Jourt to .^fl signifies fl jught to H ;, before H rant, is H / Com- H proeess ^ 1 e, that 1 es, the ' if accused 1 le same '^ ised to ^ pel the 1 tach to -*i « that Ih.' ing ex- similar present ig John las been nt, and trans- n Court with indivi- I ,1-V % % fl o them Court MOW holding', cases would come on over which we have no jurisdiction, except by a special instrument from the Governor of Lower Canada, under the Great Seal of the Province, and also believing that important preliminary questions might be started, we have agreed to hear the arguments when we are all together. Our brother Camp- bell, therefore, has been sent for, and no doubt will be here in a few minutes, when we will hear you. (Shortly after, Mr. Justice Campbell having taken his scat on the bench, the argument was resumed ; the Cliief Justice having informed the bar, that he had communicated to his learned brother the nature of the observations which had been made during his absence). Mr. Sherwood. — If the Crown Officers agree with us as to the facts, that we are sent to this Province for trial, under the Great Seal Instruments from the Lower Province, and that the authority of those instruments is adequate to the putting us upon our trials at this Court, there perhaps will be no objection to our shewing by affidavit, that we have been admitted in Lower Canada to bail upon these charges, and that in furtherance of the recognizances taken there, we arc now here, anxious to receive our trials. I would wish to know of Mr. Attorney-General whether, (if allowed by your Lordships), he has any objection to admit affidavits frouj these Gentlemen to that effect, viz. that they are under recognizances to appear here, and that in point of fact they do appear. If it is not assented to, I shall proceed with my argument, which questions the right of the Attorney-GcQeral to his motion for process of Court. Attorney General. — I do not conceive that any course is open to me but the ordinary one which I have taken. As to recognizances, I have before said 1 know of none. 1 know legally nothing of this case, but what 1 obtain from the re- turn of the Grand Jury, and upon that 1 move for process of Court against such of the Defendants as are not in custody, with the exceptions I have before mentioned of Lamarre, who is dead, and Pangman alias Bostonnois, against whom there are other indictments. Mr. Sherwood. — ^I'hen I proceed to argue against this motion of Mr. Attorney-General ; and I shall first refer to Mr. Chitty's work upon Criminal Law, as being an authority directly opposed to the motion of Mr. Attorney- General for process to issue, because I take it that if the Great Seal Instruments from the Lower Province are considered as valid, any other act performed by the same authoriticij must .. '// if 'r ters on Process, he says, " For the better understanding *' the nature whereof, (having premised that it seems plain *' from the nature of the thing, that there can be no need " of it where the Defendant is present in Court, but only '* where he is absent,) I shall consider it in general, without " any particular regard to process of outlawry, and also in " particular with regard to such process only." Here then, 1 submit to your Lordships, that neither with a view to out- lawry, nor the reverse, can process issue against Defendants who are in Court. And in another part of this chapter, sect. 19, he lays down, that " a Defendant, having appeared to '* an indictment or appeal of felony, and afterwards, before " issues joined, whether from his bail or from an actual (li ^ 'or saw n General, th much ding ot" a inclergy- instance returned tered the iinicatcd) itice prc- ). ssity, we I to issue 'd in the respect" saries till t at all if lent step [lot, from id we are irely new IS may be nst these ;es to ac- the deed is not to ted by a hut if it Icuntirms t of his [standing ns plain no need Ibut only without also iu vc then, to out- ■endants cr, sect, arcd to I, before I uctua! ■I 17 *' prison, tlic common capias alias and pliirics, &c. shall be " awarded, unless there had been an exigent before, &c." But here is no escape pretended on the part of Mr. Attorney- General, and I may presume that, as there is no necessity set forth for granting process, the Court will refuse it, and I humbly submit, that in producing Hawkins to your Lordship, I exhibit an authority on which I may rely. Chief Justice. — So you may, and so do I, and should perhaps, in this insturtcc, if I was not aware that the prac- tice upon the law of exigent and process to ouiliuvry, had been changed. The rule is, that capias must issue in all cases of felony, both against principals and accessaries, and when the proceedings require an exigent, that then it becomes matter of consideration who are principals and who are accessaries, that the proper course may be pursued in relation to both. It is our constant practice, and the Act upon which the indictment is founded, directs, " that " olVenccs committed in the Indian Territories shall be, " and be deemed to be, offences of the same nature, and " shall be tried in the same manner, and subject to the " same punishment, as if the same had been committed " within the Province of Lower or Upper Canada." VVc shallj therefore, be governed by the rules we have been accustomed to observe, and I see no reason why process should not issue against persons whom a Grand Jury de- clare, have, in their judgments, committed an unclergyable oft'ence. What if none of the principals were ever tried ! Could not against the accessaries to a murder, committed in this district, process issue, though the principals never could be brought to justice ? Mr. Sliencood. — In that case there could be no doubt it would be a legal step. But that is not the present case. Two of the principals are in custody, and although it might be a question, whether any, or what, process should issue against accessaries, till all the principals were convict or attaint, yet 1 presume to ofler that, till the principals actually in custody are convicted, it is not competent to the Attorney-General to move to commit these respectable Gentlemen, who are charged as accessaries, to the number of eight or ten, and who are anxious for their trials, and present themselves in Court. Why, I ask, should the Attorney-General move against ten or twelve Gentlemen charged as accessaries before the fact Chief Justice. —0\\ no, there are only four who are charg- ed as accessaries before the fact. M! i ! li I i* ' u t v^ 18 Mr. ShtTwood.—l beg your lordship's pardon, but it was the accessaries after the fact that I meant. Chief Justice . — 1 mentioned it, because there is a great (leal of difference between accessary before, and after, the fact ; the one is a clergyable offence, the other un- cifrgyable, and that makes a great difference as to the object of issuing process, and may perhaps as to the effect lipon the Defendants, Their situations appear very different to me at the present moment^ though not so as to render it unnecessary to bring them all into Court, after the Grand Jury have said, that they are accessaries before, and after the fact, to murder. There are, however, but four ac- cessaries before the fact, Mr. Sherwood, — ^There are not, my Lord, and in men- tioning the names of the Defendants, the error would have appeared evidently the effect of accident. I contend, however, most respectfully, that the return of the indict- ment as a true bill by the Grand Jury, does not at all alter the situation of these Gentlemen, nor of any person who is included. Brown and Boucher, the principals in this charge, are, in the eye of the law, innocent at this moment, notwithstanding the Grand Jury have returned them as principals in the first degree. It is therefore incumbent on the Crown to convict them at least, before it seeks any titep against those whose liability to be tried depends upon the conviction of the principals. I am aware that repeti- tion is not argument, yet I can not refrain from again say- ing, that they are here. But if they were not, as the Court is but of one day, I contend they have the whole to appear in. The course, and, as I humbly submit to your Lordships, the only course that is legal, is to call them over, and if they do not answer, let Mr. Attorney-General, if he thinks it necessary, bespeak a bench-warrant ; but they are here, and will answer if called. I would ask, how is it to be known that they do not fulfil their recognizance of appearing here, unless they are called upon to appear? I know of no case, nor do I think the learned Attorney- General can point out one, in which process of Court ha« been sued out against individuals in similar situations to those in which these Defendants stand, against accessaries, before u single principal is convict or attaint, (though some of the principals are in custody, and have been so too for an extra- ordinary period ; upwards, I believe, of two years), against accessaries who, to fulfil their recognizance, have come here, and at the very momert that Mr. Attorney is sainp* 19 , but it a great id after, icr un- I to the e cflFect Jiffercnt D render c Grand ind after our ac- in men- uld have contend, ; indict- all alter son who in this noment, them as zuihbent ;eks any ids upon t repeti- jain say- as the vhole to to your ill thent eneral, ut t,h«7 iW is it lance of I know enerul i« been hose in eforc u of the extra- against conjt; out processes to bring them Into Court, are actually withirt its walls. The usual course is to move for process to bring A) B, or C, into Court, and then to commit them to prison^ but there can be no reason assigned for issuing process to bring persons into Court who already are before it. QtiefJustice.-~-A\l this is mere affirmation, and does not bear at all upon the question. We know nothing of any recognizances, nor of Defendants before the Court, and it is therefore idle to talk about them. The Attorney* General does not admit that there are any recognizances, and he therefore wishes to bring before the Court persons whom a return of the Grand Jury declares to be guilty of murder, as principals and accessaries. Attorney-General. — I did hope, my Lords, that 1 had stated, with sufficient distinctness, that T knew of nothing in this case to render a variance from the ordinary course necessary. I repeat, that 1 admit that certain papers have been transmitted to me from the Lower Province, purport- ing to be recognizances entered into by certain persons who were accused of having committed various offences in the Indian Territories, the tenor of which were, that they were to appear at the next Court of King's Bench, to be held in the district of Montreal, in the following September, or at the next Court of Oyer and Terminer which might be held in that district, or in any part of His Majesty's Province of Upper or Lower Canada, where crimes and offences committed in the Indian Territory, &c. might legally he heard. These recognizances were entered into in 1817, binding persons to appear at the next Court of Oyer and Terniincr which might he held in any part of the two provinces, but they are perfect absurdities for me to file, and endeavour to act upon in October 1818, 1 therefore declare, that I know nothing of any recognizances by which I can compel these Defendants to come into Court, and 1 • therefore move for process to attain that object. Mr. S'jeruJood.— Then, I take, may it please your Lord- ships, a very different course. My objection to the motion cf Mr. Attorney-General will remain, but it will be on very different grounds that I oppose it. 1 shall contend, that it is only by the Authorities of Lower Canada having ex- acted bail from them, that these Gentlemen are bound to appear here at the present moment, as also that it is only by the Great Seal Instruments of the Governor in Chief, that the Attorney -General is authorized to put thetn upou \';,*jl t 2 -.*»■!»■ 20 / 'i ' their trials. I contend, if the one is a good and vrdid authority to put them upon trial, the other, which admitted them to bail, must necessarily be so, and must be equally acknowledged by your Lordships. Then, if the Attorney- General has not been premature in delivering bills to the Grand Jury against these Gentlemen, if he has not pre- maturely acted upon the documents received from the authorities of the Lower Province, he must, to be con- sistent in his admissions, receive their other acts in relation to these offences. He must admit that they had the right to bail the offender, and take recognizance for his appear- ance, as well as the power to transm't his offence to Upper Canada for trial, and therefore must proceed to ascertain whether they fulfil the obligation they severally entered into by calling them in Court, and if they make default this morning, he can only bespeak process against the defaul- ters, in as much as the Court, or rather Session, is but as one day, and the Defendants arc entitled to the. whole of it to make their appearance. I submit to your Lordships that, in construing this Act, the utmost strictness is required ; that this Court can derive from it no power by implication, no power by inference, but that its authority must be clearly and explicitly shewn on the face of the statute. Adopting this rnle, it is evident that the jurisdic- tion of your Lordships over these Defendants is derived from the Great Seal instruments transmitted from the Lower Province, and that these documents must be taken ab initio et in toto. I will explain myself; these Gentle- men must come before your Lordships under the authority of the 3d section of the Act of the 43d Geo. IIL from the Province of Lower Canada, being sent under a broad seal instrument, for it is only by the Great Seal Instrument that they can be sent. If they are not so sent, then your Lordships know nothing of the case in a legal point of view, but have a right to suppose that it is to be tried in Lower Canada, and that the Defendants arc there, either as actual prisoners, or under recognizance. Why then has the Attorney-General commenced proceeding against these Defendants, if they are not sent here for trial ? and if they are sent, surely it is not a question for Mr. Attorney to raise, when they appear here upon recognizances entered into under the authority of the Governor of the Canadas, whether they were bound to appear under them ? If ob- jections were allowed to be made to the forms of these instruments, it ought to be by the Defendants, but cer- 21 taitily not by the Oflicei's of the Crown. We say at once they are legal instruments, we allow they are recognizances, having full force against us, and we manifest our conviction of their binding nature by presenting ourselves for trial, as by them we and our sureties obliged ourselves that we should do. I should feel extremely mortified, if by any ingenuity of the private prosecutor, or the Hudson's Bay Company, the Attorney- General could be led, or rather misled, to act upon a supposition that these recognizances, taken under the highest authority, are not valid, or that he should be induced to adopt a rigorous course under '; representations from them, that any advantage would I accrue, even were obligations defective. I trust, as nothing y can be farther from the intention of the Defendants, that ■^ I shall be spared i^e mortification of seeing my Learned •| Friend adopt a covjse that can only result from misrepre- sentation. \ j4ttorncy'General.-^Res\iec(ing the last observation of the Learned Gentleman, I have only to remark that, in the jirosecution of my duty, I shall allow no representations on the one hand or the other, either to lead or mislead me; but in these cases, as I do in every other, I shall act from my own conviction of what is required of me by the public justice of the country, without enquiring who is to be affected thereby. In thus fulfilling my duty, if the Grand Jury return a bill of indictment against persons who arc not in the Sheriff's calendar, I conceive myself bound to take the necessary measures to bring the persons so accused be- fore the Court ; and I know of no method of doing so, but the regular one of moving your Lordships to issue the pro- cess of the Court against them. If your Lordships, when they are before you, shall be pleased to extend to them the privilege of bail, I shall not act so ungracious a part as, on behalf of the Crown, to object to any indulgence which the Court shall consider not incompatible with that security for the attainment of justice which the law requires. But it is from your Lordships, and not from me, that any re- laxation of the ordinary practice must proceed ; if, when these persons are before the Court, it shall be your Lord- ships' pleasure to grant their application to be admitted to bail, I repeat, that 1 siiall not act the ungracious part of making, on behalf of the Crown, any objection to the pro- position. Mr. Sherwood. — The Attorney-General mistakes. These Gontlonicn arc not asking to be admitted to bail, for Uiey r! 22 are already under recognizances, and come here in obedience to them ; and I humbly conceive it is not the Attorney- General who is lo judge whether the recognizances are good or bad, or whether he will act upon them up to their com- pletion. Upon that subject the statute must be made our guide, and the Gentlemen are sent here by virtue of that statute, under recognizance to appear, and answer charges, which are transmitted by the Great Seal Instruments to this Province for trial. I humbly submit to your Lordships, that the consequent question upon the Great Seal Instru- ments is, are the offenders who are transmitted for trial by them, here ? How is that point to be ascertained ? The answer is obvious. If they are under recognizance^ they must be called up to appear. They must have been in custody from the words of the law, for they could not have been transmitted here for trial if they had not, and if they are here under recognizances, I repeat, that it is not in the power of Mr. Attorney-General to prevent the completion of them. Chief Justice. — We know nothing of any recognizances ; there are none produced to us, consequently we can know nothing of them, though they may have been taken in the Lower Province. The Attorney-General at once admitted that he had received papers, but as he did not consider them efficient recognizances, he should not file them, and till they are filed, it is idle to talk about them. Mr. Sherwood. — Then 1 submit to your Lordships, whether the indictments and commissions are not incom- plete and nugatory. I contend that the transmission nf the offender is an indispensable part of the proceedings, and that if the Governor had not been w^ll advised, but has transmitted invalid instructions, the defect is fatal to your Lordships' power. I contend that the offender not being sent here for trial, (for if he is neither in the custody of the Sheriff nor under recognizance, he is not here legally or by obligation), the very first step to give your Lordships power under the provisions of this Act has been omitted, and the instruments are radically defective. But we do not think so lightly of the law-advisers of the sister-province, and we accordingly are ready to answer, whenever called upon to fulfil our riecognizances. Solicitor-General. — I think, my Lords, that the motion of my Learned Colleague ought to be granted, for the reasons that he has stalled, nor do I see what the objection of the l^earned Gientlcman amounts to. We ask of the Court, lo 23 f the , and issue process to bring these Defendants legally before the Court, so that we may proceed to their trials. The Learned Gentleman says, they are in Court, and want their trials. Upon their own statement, 1 see no hardship which is to accrue frum our motion being granted; but, on the contrary, we are accelerating the attainment of what they say they are anxious to obtain, viz. their trials. 1 can not therefore see any hard>hi|) tliat is done tu these Gentlemen. Chief Juaicce. — We are not talking of hardship ; we are enquiring which is the proper course lo take upon the bill which the Grand Jury have returned aguinst a number of persons, accusing some of them of murder, and others of being accessaries before and after the fact. The Attorney- General has moved for process to issue to bring them into Court, and I have heard nothing adduced yet (though a great deal of our time has been taken up in talking about it), that goes to show it ought not to issue. There has been a great deal said about recognizances, of which we know nothing, excipt that the Attorney-General hfis declared, . that certain papers sent to him, were inefficient for the purpose for which they were drawn up and transmitted, for which reason he did not file them ; but we have nothing to do with hardships in considering the question. Mr. Sherwood. — Undoubtedly not. We are talking of law, and we ask no favours, because we want none. We ask of your Lordships to say, whether we are here or not, because if your iiordships are ^against me on that point, I shall consider, as I am obliged to do, the authority of Haw- kins nothing. 1 shall then be obliged to adopt another course. 1 sliall be under the necessity, very respectfully, of denying the power of this Honourable Court to issue any process but a subpa^na, under the Act of the 43d of the King. I am extre/nely sorry to be driven to this necessity, because it is wl)at I was desirous to avoid, and 1 did not expect that the learned Crown Officers would object to in- struments prepared by the law-advisers of the Governor- General of the Provinces of Lower and Upper Canada. Bui as that course has been taken, 1 am compelled lo deny that this Court can, under the Act which gives it jurisdic- tion over offences committed in the Indian Territories, issue any process except a subpoena. It has no authority under the Act, to try any but persons sent by the Governor, Lieutenant-Governor, or person administering the govern- ment for the time beiogj of the JLower Province. fj'or larceny on a navigafila y river, on the VJlk Mti;/, IHIG, I (it RivUrt: Qui Jitjicilc, rjor malicioushj shootitiif (it Miles M(t((lit)icU (Old othrrSf OH I he I \th June, 1815. 24 (Here the arirnmcnl was interrupted btj the Urand Jury returning true biUs (iJ' the following Indictments, viz. usainst CunibKRT Grant, Pk'iru Paxgman, alias HoSTONNOIS, JosKfti HuisDor^, and Paul Urown, Georgg Camphkll, Duncan Camkron, CuTHUKRi- Grant, and William Shaw, The Grand Jury having retired, the discusiiun if(ts re- sumed). Chief Justice, — If you wisli to be heard further, you can ; but as the Court is at present advised, we do not see that it will alter our opinion, which is, that whenever, under the 43d of the King, an oHVnce charged to have been coui- initted in the Indian Territories, is transmitted to this Pro- vince, by an instrument under the Great Seal of the Pro- vince of Lower Canada, declaring it to be more conve- niently tried here, the Court of the Upper Province be- comes possessed of every jurisdiction, power, and autliority over the offender, and must proceed in precisely the same manner as if the crime had been charged to have been conj- initted In the district. Therefore, upon an indictment for felony upon this statute, process to apprehend the offender charged therein, must issue, if he is not already in custody. In cases arising from this Act, and in the present case parti- cularly then, we know nothing whether the accused are here or not, but by the calendar. If they are not in custody of the Sheriff, they nmst be brought into Court by process, or if they are in Court, and declared to be so, they must becom- Tnitted or bailed here. We have, as far as the Great Seal Instruments are concerned, only to see that they transmit the offence for trial here, of whieli the Grand Jury accuse the Defendants, and that for the purpose of satisfying our- selves we are intended to have or exercise jurisdiction over it, and the moment we are satisfied that the offence was transmitted for trial to this Province, it follows, as a matter of course, that we have jurisdiction to apprehend the of- fender. It nnght perhaps have been a question, how far the Grand Jury might feci that they were authorized, but 1 95 tiloy undoubtedly, by proceeding to exfiniinc and return the bill, have thought, and indeed been sutisfu-d, that they had rognizance, and upon their coming up into Court and re- turning as true a bill, accusing a number of persons of felony and murder in different degrees, it was competent to the Attorney-General, instantly to move for process to ap- prehend such as were not in custody, and this Court would certainly have granted his motion, or have committed them, if he had declared they were within the walls of the Court. Till the Grand Jury had made its return, the Court would not have done so, though it might have been represented that they were persons accused of having coninjitfed offences In the Indian Territories, which were transmitted here for trial, because then we had no legal knowledge of the offence or offender ; but now we have of both. Relative to the bailing of these persons, or the admitting them on recognizance to appear, the principals in murder cannot be bailed, and why should accessaries before the fact ? It is a crime from which the benefit of clergy has been taken away, and very properly so too. The opinion of the Court is therefore, that against the persons not in custody, and therefore not before the Court, Mr. Attorney-General is entitled to his motion, and that the usual process must issue. Mr. Sliern-ond. — I do not know whether your Lordship has given the final judgment of the Court, but if not, I would beg to make one or two observations, and I believe I am not out of time, as I think your Lordship eonimenced your observations by stating that we might be heard further if we wished. I would therefore, under permission of the Court, submit that the Governor-General cannot transmit any offender for trial to the Upper Province, who has not been in custody in the Lower ; it is therefore, from his transmitting these persons hither, evident that they must have been in custody, and have been admitted to bail, for they could not be sent without having been in custody, and if they are not so at the present moment, it must be be- cause they are under bail. Chief Justice. — It is needless to pursue that argument, as we differ with you completely. In our opinion, it is the offence, and not tiie offender, which is transmitted by the Great Seal Instrument, and in transmitting the offence, jurisdiction was necessarily given over the offender, so that when the (Jrand Jury found that the offence h;u! been coni- uiilted in the Indian Territ(»ry, by the person luuned in the ')■• m Jf^t.-r*- fS-T 36 irdictmcnt, wc had the same power over the person of the offender, as if the offence had been committed within the Home District. It is the offence which the Great Seal In- strument declares can have justice more conveniently ad- ministered in relation thereto in the Upper, than in the Lower, Province, and that declaration necessarily includes in it a jurisdiction over the person of the offender. Mr. SliertvtMd. — The words of the statute, my Lord, are so strong, that I hardly think I can be mistaken in saying, they expressly mention that it is the offender who is to be transmitted for trial, and not the offence. From the title to the last section, it is throughout an Act providing for the trials and punishment of persons committing offences in the Indian Territories. It is entitled, ^' An Act extending the '^jurisdiction of the Courts of Justice in the Province of " Lower Canada, and Upper Canada, to the trial and pu- " nishment of persons guilty of crimes and offences within " certain parts of North America adjoining to the said ** Provinces." The preamble merely declares the occasion that exists for passing the Act, and the first enacting clause declares offences committed witiiin the Indian Territories are to be deemed of the same nature, as if they had been committed in the Province of either Lower or Upper Ca- nada. In the second section there is something so peculiar, that I must read a part of it. Mr. Justice Campbell. — You had better read the whole. Mr. Sliericood then read the whole of aect. 2d.— I would ask, my Lords, why Commissioners were sent into the In- dian Territory r Why was the Proclamation of His Uoyal Highness the Prince Regent issued, if it was not to bring offenders to juslice ? and why were these offenders to be brought to one of the two Provinces of Canada, but that they might ^e prosecjited and tried under this Act ? In the first instanco, jurisdiction, or the original jurisdiction, is given to the Provirjce of Lower Canada by the Act of the 43d. It will be found in the 3d seelion, " And be it fur- " ther enacted, that every such offender." 1 beg the Court's attention to this part, as com[)letely supporting the observations. 1 hiive had the honour to submit ; the words are, " And be if further enacted, that every such offender " may and shall be prosecuted and tried in the Courts of the ** Province of Lower Canada (or." Now comes the para- graph which gives power to this Province, " or if the " Governor, Lieutenant-Governor, or person administering " the government for the time being, shall from any of the I I 31 27 ption, IS of the it fUT- |eg the [ing the words Offender of the |e para- lif the jstering of the •* circumstances of the criiM or offence, or the local situa- " tion of any of the witnesses for the prosecution or d«- " fence, think that justice nnay be more conveniently admi- ** nistered in relation to such crime or oifence in the Pro- " vince of Upper Cunada, and shall, by any instrument " under the Great Seal uf Lo«ver Canada, declare the same, " then that every such offender t.nay and shall be prosecuted ** and tried in the Court of the Province of Upper Canada) " in which crimes and offences of the like nature are usually ** tried, and where the same would have been tried, if such " crime or oifence had been committed within the limits of " the Province where the same shall be tried under this '^ct; " and every offender tried and convicted under ti i i,<:t, " shall be liable and subject to such punishment as rt\ y by " any law in force in the Province where lie or she shail be *' tried, be inflicted for such crime or offence."— Your Lordships cannot fail to remark, that the words made are of, are " the offendei'" and " such offender." What of- fender ? why, unquestionably the offender who, in con- formity to the 2d section, had beon apprehended, and safely conveyed to Lower Canada, and there delivered into safe custody, lo be dealt with according to law. These Gentlemen, therefore, have been in the custody of the Go- vernor-General of Canada, and are transmitted here by him for trial ; and if they are not on the calendar of the Sheriff, as prisoners within the wall of the gaol, it must be because they have been admitted to bail, and therefore are under recognizance. They are so, and iu fulfilment of it appear here. This, I submit to your Lordships with great defer- ence, does not correspond with the construction which the Court has given to the Act. Chi^' Justice. — I must construe the law so as to give It effect; there can not, 1 suppose, be two opinions on that point. Mr. Sherwood. — Not by inference, I should apprehend, my Lord, and according to the actual words of the statute, these Defendants must liave been in actual custody of tlie Governor of Lower Canathi, and in point of law, actually arc so at this very moment, they being under recognizance. He has transmitted the whole of these Defendants to this Province for trial, either under guard or under recognizances, as to his discretion appeared necessary. These persons then, I contend, must be here before Mr. Attorney-General could take one step against them. If they are not here under recognizanee, t)i«y are not transmiitted at all, because they rr 1 28 h are not in custody of the Sheriff, 'fhe learned Crowil Officers can not say these persons are transmitted here for trial by the Governor of Lower Canada, (whose peculiar province it is, when he thinks justice may be more con- veniently administered in relation to crimes and offences committed in the Indian territory in Upper Canada, so to transmit the offenders,) unless he also admits that they have given recognizances. Then we ask to be called upon these recognizances, and we will demonstrate that we arc here to fulfil the obligations entered into, and thereby relieve our bail. If the Attorney-General does not admit the recogni- zances, then the Great Seal Instruments are defective, and no step can be taken upon them at all. The Court will certainly infer, in my humble judgment, that every thing was done correctly in the Lower Province, and the more so, when we consider the high authority under which the Great Seal Instruments and other documents are prepared. I submit that the Attorney-General ought not to call upon your Lordships to infer that error has been committed, be- cause, if it has, we not only are not bound to appear, but wc actually are not sent here for trial, according to the provi- sions of the Act. The natural consequence of which must be, that the Attorney-General was not authorized to com- mence proceedings against us, because the Governor of Lower Canada had not delivered us from his custody tu that of the [Jpj)cr Province. SoUdtor-ijcneial, — The Court, I imagine, my 1 -Aiil not infer any thing, and for this reason, that the) > ijly able to hear and determine according to law. If upon this particular Act any difficulty arises, your Ijordships will undoubtedly give such a construction as the necessity of the case requires, or, as was remarked by his Lordship the Chief Justice a few moments ago, you will construe the law so as to give it effect. Mr. Slienvood. — Upon the general principle we perfectly agree, but I differ from my Learned Friend, the Solicitor- General, in the application of that principle. As to the construction that is to be given by your Lordships, being such as the necessity of the case requires, which Mr. Soli- citor-General urges upon the Court, I beg to say, 1 do not admit the doctrine of ex necessitate rei. Necessity makes no law in a Court of Justice; it is the Parliament who make laws, and Courts administer them ; but I hope we are not to hear of their being construed according to the necessity of aj)y particular cixbc. So niueli for the application of my '29 Jy this will if tlie the |e law |fectly /itor- thc leinff ISoli- not ^akcs lake lot to |ty of my Learned Friend's principle, that the Court ought not to ii{f'er " any thing, but to hear and determine according to law," in which 1 concur : and for his argument or applica- tion of that principle, that your Lordships are to be guided in so doing by " the necessity of the case," from which I dissent. It appears to me to be a singular coincidence ot circumstances, that the Crown Oflicers should dispute the goodness of recognizances which we admit, and to which we yield obedience. This Court, 1 imagine, will not be satisfied with Mr. Attorney-General's merely saying, that the recog- nizances are not capable of being enforced. It would, my Lords, be to throw great discredit on the law-advisers of the Governor of Lower Canada, to admit, that in cases of so much importance, they have taken recognizances which are so many pieces of waste paper. Cliuf Justice. — We know of no recognizances; there are none produced to us, we can therefore know of none. Mr. Sherivood. — Will the Court allow us to make aflidavit that we are under recognizances, and that we are now in Court to take our trials, in obedience to the obligation we entered into in the Lower Province ? Chief Justice. — We have nothing to do with any recog- nizances entered into in the Lower Province. We know nothing about them, nor do we want to know, unless they are produced to us. Attorney -General. — There is one thing which I forgot to mention. The Act, in its second section, directs that all offenders shall be sent to Lower Canada, there to be dealt with according to law. It is unquestionably to the Courts of tliat Province that original jurisdiction is given; there is, however, afterwards a limiting clause, by which power is given, upon the Governor of that Province de- claring that justice may be more conveniently administered in the Upper Province in any particular offence, to prosecute and try the offender in the Court of the Province of Upper Canada, in which crimes or offences of a like nature are usually tried, and where the same would have been tried, if such crime or offence had been committed within the limits of the Province, where the same shall be tried under this Act, and the offence may and shall be laid to have been committed within the jurisdiction of the Court where the trial is to be had. It is known to all of us that, at the time of the division of the Province of Quebec, a Legislature was given to each, with power to make such laws for the good government thereof, as were not repugnant to the act which 30 created tlicni. From tlie tenor of this Act, in relation to the two provinces, it appears to have been understood in E,ng* land, that each province had its peculiar laws, by which its jurisprudence was regulated, and the Act therefore declares^ that at whatever Court in each province any offence com- mitted therein is accustomed to be tried, a similar offence committed in the Indian Territory sliall be tried. It appears, liovvever, not to have been understood in England, what the differences were that exist between the two provinces, ©r what were the particular forms under which prosecutions are conducted ; it therefore provides under this Act only, that offences committed in the Indian Territory shall be laid as Laving been so within the jurisdiction of the Court. In o:^eQces committed out of the realm of England, but for which the offenders are tried in England, the offence may be eliarged to have been committed in any county, and shall then be tried by a jury of that county in which the offence h so charged. I have therefore adopted a similar course, 9nd have not charged the offence to have been committed in the Indian Territory, but in the Home District, at the town of York, the obvious consequence of which is, that it is charged to have been committed within the jurisdiction of this Court. These observations I think it my duty to submit, as explanatory of the views which have guided me in the course I have taken in these cases. I have considered that, the moment we had authority to enquire into an offence committed in the Indian Territory, power over the offender must necessarily be given, and I have in all the cabes submitted to the Grand Jury, laid them to h»ve beenf committed at York, in the Home District. In reference to the question immediately before the Court, I have no desire to supply more than what I ought to disclose, and as little to throw discredit on the law-advisers of the Governor of Lower Canada, but in ray own justification, for what might otherwise appear to be an unnecessarily harsh course, I must be permitted to state, that I did not consider the re- cognizances sent to me efficient instruments upon which, in case of necessity, I could compel the individuals who had entered into them to come before the Court. That the opinion I formed was not incorrect, will, I think be apparent, when 1 state they were t;iken in the year I8I7, in the month of March, I believe, and bound the parties, that the principal in the bond should appear at the next Court of King's Bench, to be held in the district of Montreal, in the month of September then following, or at the next Court of Oye?: i 31 te, re- |»ich, had the lent, J>nth fipal Inth )yejr and Terminer, which may be held in the said District, or in any part of His Majesty's Province of Upper or Lower Canada. Since the period at which these bonds were taken, there have been several Courts of Oyer and Terminer in the various Districts of this Province ; 1 could not, therefore, force an appearance here by bonds which only obliged those who entered into them to appear at Courts which had already been held, and some of them were not even signed ; I therefore could not but view them as instruments which were totally insufficient. As far as I am at liberty, con* sistently with my duty, to act, I have no disposition to be rigid, nor shall any rigour be exercised on the one hand, or laxity admitted on the other, but as I may consider them to be compatible with the attainment of substantial justice be- tween the Crown and the accused. If in the present instance the Court think they can do it, I shall certainly not be so ungracious, as to object to the Defendants being ad- mitted to bail. I feel I have done my duty when I brin^ them into Court, and whatever indulgence your Lordship* consider it right to extend to them, will be acquiesced In on the part of the Crown. I do not deny that some, and I believe the whole, of the accessaries, have been admitted to bail in the I^ower Province, though I did not feel myself warranted in filing the recognizances, for the reasons 1 have submitted to your Lordships. Chief Jmtice. — If you allow that they were admitted to bail in the Lower Province, it will certainly have great weight, as far as some of the Defendants are concerned, but not In those cases in which the humanity of the law does not interfere in case of conviction. As no pecuniary sacri- fice can be set in competition with a man's life, 1 can not take any step that shall hold out a temptation to escape from justice. Principals in murder can not be bailed, and why should accessaries before the fact, who in case of con- viction are liable to the same punishment, be admitted to bail ? The benefit of clergy has been taken a-vvay from ac- cessaries before the fact ; they are made to stand in pre- cisely the same situation, in case of conviction, and they must do so after an indictment has been returned by a (jlrand Jury a true bill. We are bound to grant the motion of Mr, Attorney-General, and the accessaries before the fact equally with the principals must, when taken by the pro- cess, be committed. We can not think of bailing persons against whom, If convicted, the Court could not withhold the capital punishment of death. Relative to the acces- iuru's after the fact, if convicted, they would have their 32 clergy, and their punishment thereby dlminishln{^. I have no objection, if the Crown Officers, who are acquainted with tl»e particuhirs of the charge, assent to it, to admit them to bail ; but it must be in such amount of recognizance as is not only satisfactory to Mr. Attorney-General, but also calculated, from its extent, to ensure the attainment of justice. As to the recognizances which have been spoken so much of, we know nothing of them, they are not before the Court, and even if they were, could not be enforced. Upon the principle of difference between clergyable and capital felonies, and in deference to the example set by the sister-province, if the Defendants, who are accessaries after the fact, surrender themselves, and have bail ready, to the satisfaction of Mr, Attorney-General, it shall be received, but against the others process must issue. Mr. Sherwood. — I beg to mention to your Lordships, that the accessaries before the fact were, after a review of the whole of the charges had been taken by the law advisers of the Governor-General, admitted to bail in Lower Canada. Chief Justice. — I have nothing to do with that. I have no objection to follow' the example set by the sister-pro- vince, where it was indulgent to the accused, as far as 1 can consistently with my duty, but no example on earth can influence us, or release us from the imperious duty of not allowing, for a moment, any thing that sliall lessen the certainty of persons accused of unclergyable offences being brought to trial. If convicted, we could not withhold the sentence of deafh, and we have no right to consider any pecuniary b-'nd adequate to ensure the trial of persons so accused. (After some conversation, the Attorney-General con- sented to the Accessaries after the Fact, being admitted to bail, themselves each in the sum of Five Hundred Pounds, and two sufficient sureties in the sum of Two Hundred and Fifty Pounds each. Upon the sums being named, the Chief Justice remarked, that he had no objection, but he should have gone higher, had he fixed the bail, and then directed that the Defendants should not be admitted to be bound for one another. Mtissrs. Alexander M'Keuzie, John McLaughlin, Hugh M'Gillis, John M'Donald, and Simon Frasery severally surrendered themselves and gave the re- quired bail). PAUL BROWN and FRANCOIS FIRMIN BOUCHER, two of the Principals accused of the Murder of Mr. Semple, and others, were then put to the bar, and arraigned upon the Indictment, (Appendix B). ^ ^ Mr. SJierwood. — Before the prisoners plead, tliey pfay the Court to appoint tliem Counsel ; and they ask that Mr. Livius Sherwood, Mr. Baldwin, and myself, may be assigned them as Counsel. (The Court directed an entry to be made, that, upon application of the prisoners to the Court for Counsel, the three Gentlemen above named were assigned to them. The prisoners then severally pleaded Not Guilty. — ^The Court enquired of the Attorney-General when he would be ready to proceed with the trial : he intimated, that for himself, he was ready at any time, but as the Earl of Selkirk was deeply interested in the result of these accusations, and had given a great deal of attention to the investigation, he did not wish, in the absence of his Lordship, to put these men on their trial ; he understood that tiie Earl of Selkirk was confidently expected to-morrow or Sunday, and he hoped therefore, if their Lordships were ready, to proceed with it on Monday. The Court, in stating that they should be prepared to enter upon it on Monday, took occasion to remark, that the trial could not be delayed on account of Lord Selkirk's absence, if the Crown was ready to proceed. As it was, it made no difference, seeing that till Monday the Court could not take up any of these cases on the 43d of the King. The Court then proceeded to the ordinary business of the District, it being understood that nothing would be done in the cases from the Indian Territory till Monday, the 26th instant). i al con- itted to 'ounds, red and ed, the but he d then :d to be John Simon the re- :her, Semple, Id upon Monday, 26th October, 1818. PRESENT : His Lordship Chief Justice Powell, The Honourable Mr. Justice Campbell, The Honourable Mr. Justice Boulton, and William Allan, Esquire, Associate Justice. The Grand Jury returned true Bills of Indictment against for maliciously shooting at Miles M*Donell, James Sutherland, Peter Fidler, John Warren and Archi- bald McDonald, in a dwelling-house of the Rt. Hon. the Earl of Sel- kirk, on the 25th of xMay, ISl.'i. (Appendix G.) George Campbell, Robert Gunn, and Hector Macdonald, i> 34 i t r^ as Principals ; as Accessaries before Fact ; and the as Accessaries after the Fact. CiJTHBERT Grant, Louis Pbrrault, Paul Brown, and Francois F. Boucher, Allen Macdonell, John Siveright, Seraphim Lamarre, and Peter Pangman, Albxandbr MaCKENZiR, Hugh McGillis, John McDonald, John McLaughlin, William Shaw, John Sivbright, Simon Frashr, Allen McDonell, Seraphim Lamarre, and Peter Pangman, for the Murder of Alexander M*Lean, on the \6th of June, 1816. (Appendix H.) for robbery in a dwelling- house, and stealing from William Corrigal, (Ap- pendix I.) Attorney-General. — In the case of the King against Cuth- bert Grant, George Campbell, and the others who are either principals or accessaries before the fact, on the indictments just returned by the Grand Jury, 1 move that the process of the Court do issue. Chief Justice.— het capiases issue. This day I under- stood to have been specially appointed for the trials upon indictments under the 43d of the King. Are you ready, Mr. Attorney-General ? Attorney 'General. — I am ready, my Lord. I take the charge of murder against Boucher and Brown, two of the principals who are in custody. The charge which I propose now to try them on, is for the murder of Governor Semple. (The prisoners were accordingly put to the bar.) Mr. Sherwood. — In that case I move the Court to admit one of the accessaries before the fact to bail ; lie is at pre- sent in custody, having been taken on the capias. I humbly apprehend that there can be no question as to the regularity of this motion, nor do I see any reason upon which it ought to be refused. Paul Brown, ^ 35 Chief Justice,-— The question is already decided. It waa refused the other day. Mr. Slwncood.—l beg the Court's pardon, but 1 submit that we stand now in a very different situation. At that tin^e Mr. Attorney-General stated to your Lordships, that he moved for the process of the Court in order to bring us before it, and 1 understood that till the capias brought us here, we could not be heard, because, although within these walls, yet in point of form, we were not before the Court. VVc are now here upon the process, and I move that Mr. John Siveright he enlarged upon bail. Chief Justice, — Well, let us hear on what grounds. Mr. Livius Sherwood. — The statute of Westminster the 1st my Lord, which distinctly states, "Those who are " accused of the receipt of thieves or felons, or of com- " mandment, or of force, or of aid of felony done, shall be " replevisable," &c. Second Hawkins, my Lord, page 159, — Chief Justice. — So they were formerly, but you will find an Act afterwards, repealing that which you mention. Mr. L. Sherwood. — Was there, my Lord ? I was not aware of its being repealed. Chiif Justice. — Yes, it was repealed, and the statute makes the course the same as at common law. Mr. Sherwood. — I beg to re|)resent to your Lordships, that the words of Serjeant Hawkins, in explaining the Act of Westminster 1st, are, " all accessaries, whether to ho- " micide or any other felony, are bailable till the principal " be convicted or attainted, and even after, on pleading to *' the indictment." I retcr to Hawkins as decisive authority. 2d Hawkins, Pleas of the Ciown, page 159, sect. 53. " As " to the branch concerning those who are charged as ac- cessaries, which is in the following words, * those who <( ( ire accused of the receipt of thieves or felons, or of 'commandment, or of force, or of aid of felony done, ' shall be replevisable, &c.' — it is observable, that not- withstanding the statute mentions only those, those who are accessaries to a felony any other way, as by persua- sion, or any procurement, or abetment, have always been taken to be within the equity of it, and most of the books relating to this matter, seems generally to hold, that all accessaries, whether to homicide," (the very case here, and there is no exception made relative to it, all accessaries, is the word,) " to homicide, or any other " felony, are bailable till the principal be convicted or at- " tainted, and he goes even much farther than this, for he 1)2 (( ■/ M i ,. h i A i says, " they are bailable oven after such conviction or at- " tainder, upon their pleading to the indictment," and this we have done, " and do not express any limitation or res- " triction that they be of good fame, or but slightly sus • " pected, &c." He then quotes a case of "25th Edward " III. 44, pi. 14, wherein a person appealed of murder, as " having holden the deceased in his arms while the other " killed him, was not let to mainprise ;" the reason given for it by the reporter is, " because the defendant in a manner " was principal ; for that otherwise being accessary only, " he ought to have been let to mainprise by the intent of " the statute." 1 cite this authority to your Lordship as conclusive, that accessaries, having pleaded, are admissible to bail, and that the usual and ordinary course is to bail them. If your Lordships will take the trouble of looking at this authority, I think you will find it completely satis- factory. Chief Justice. — I do not wish to see it. I know that formerly it was so, and so does every one else, but that Act has been repealed. Mr, Sherwood. — I have always considered Hawkins, my Lord, as authority, and I have been reading from him. Chief Justice. — So have I too, and do so still, but all that you have been reading refers to the law as it stood before the repeal of the Act referred to. Common sense as well as justice, would suggest, that after an indictment has been returned by the Grand Jury a true bill upon a charge which, although once entity -;d to benefit of clergy, (and then bailable), has since been rendered incapable of receiving it, the humane provisions of the law should vary, according to the different circumstances which the new enactment pre- sented, for it would be an absurdity, that the same rule should prevail relative to a supposed crime or offence, as when it was entitled to benefit of clergy, after that humane provision of the law had been taken away. Bail an ac- cessary for an unclergyable offence, and why refuse the principal ? Are not their cases as to punishment the same? Death. It is sufficient for me that twelve men have re- returned as true, an accusation involving the life of an in- dividual without benefit of clergy, and I consider it im- possible to allow him to be bailed under any rule of law. Mr. Sherwood. — Hawkins, my Lord, goes much farther ; he says that until the principals are convicted, or attainted, that they shall be bailed, and even after conviction they shall be entitled to it, if of good reputation. :<7 my as Dane ac- the me? re- in- im- er; Cliu'JJnuiice. — State things coircctly, Mr. SluTwood ; it (Iocs not say shall be bailed, but way be bailed. It is com- pletely in the discretion of the Court, whether they will bail an accessary or not. Mr. Sherwood. — I am perfectly aware of that, my Lords, and 1 humbly move that Mr. John Sivcright be admitted to bail. 1 have never contended for the right in any other way than subject to the discretion of the Court, and under that restriction I present my motion. Cfuef Justice. — My own opinion is against your applica- tion. The offence which the Grand Jury have returned as a true bill against the Defendant, is one which is not clergyable, and ought not to be admitted to bail. That is my opinion. The Court is full, and you can have the opinions of my brethren upon it. Whatever might have been the practice before the repeal of the benefit of clergy, I consider that, after that period, no person against whom twelve men, as a Grand Jury, return a true bill, ought to be admitted to bail. Mr, L. Sherwood. — Was it tlie 31st of Charles, to which your Lordship referred, as repealing the previous law, because the words of the Act I refer to are exceeding strong, that nothing but the want of a good reputation can hinder the person accused of being accessary from being bailed, and a very strong case of murder is adduced as the authority in support of the doctrine for which 1 contend — Chief Justice. — The question must be set at rest. My brothers agreeing with me, that bail cannot be taken for an accessary to a crime which is unclergyable, let the prisoner be committed. No injustice is done by this. After the declaration of a Grand Jury, that they consider a man ought to be put upon his trial for an unclergyable offence, the ground I take is, that there are strong presumptions of guilt against one so charged, and he ought not to be allowed to remain, or be placed again in a situation capable of ef- fecting his escape. Mr, L. Sherwood. — If there is presumption admitted in one case, then there must be in all. Relative to the re- marks upon the presentation of the Grand Jury, I humbly conceive, that it amounts to nothing more than an affidavit or information, made on oath I allow, but founded on ex parte statements, and therefore not conclusive as to guilt, or alterative of any right belonging to the individual before its return. He is held to bail to take his trial, and the utmost length the return of the Grand Jury goes, is to say, Ih^t H % it is riglit llic accused should hv |>ul to Hiuswcr, but it tides not take from him any right tluit he possessed l)cf(»re the return. 'I'here is only one criterion by which to judge of the admissibility or inadmissibility of an accessary to bail. Is he of good reputation ? VVc say Mr. Siveright is of g(K)d reputation ; if he is not, let it be shewn ; but I humbly contend that, unless that is shewn, he cannot be excluded fron\ putting in bail. [ humbly submit, my Lords, that it is a right which he is entitled to. Chief Juf' fur. — If means were used to bring the question before the Court of King's Bench, there it is in the power of the Court to bail under any circiunstanccs which appear to them to be justifiabU' ; but we are sitting as a Co'\t* of Assize, and we do not feci disposed to !)ail a person charged on the oaths of twelve men with an undcrgyable oftence. Mr. Jones. — I might, perhaps, be ))ermitted humbly to submit an authority. It is to be found in Leach, p. 13H, Kcx versus Kudd, by which it is laid down the Court lias the power to bail for any murder. Cfiief Justice. — What Court has that power? a Court of Assize? Have you any authority for a Court of Assize hailing for murder ? What Court docs the authority refer to ? AJr. Joiit's. — To the Court of King's Bench. Chirf Justice. — Nobody questions that it has the power, but what has that to do with a Court of Assize ? VVc told you, that if the (juestion was before the Court of King's Bench, they might bail, if they thought proper, in any case. It is not right to produce authorities referring to another description of Court, and argue upon them, as if they had a bearing upon the question, when they have none whatever. Let the Jury be sworn Mr. Slicrwoocl. — 1 might, perhaps, be indulged by u re- ference to that great authority, Sir William Blackstone, who, I do think, may be cited as decisive authority on any point upon which he treats ; and he clearly allows, that an accessary to any felony may be admitted to bail ; nay, goes much farther, they must be bailed upon offering suflficient security, vol. iv. p. 'Ji)8. After considering, 1st, who are clearly not admissible to bail by the justices ; 2nd, others whose bail, from the dubious nature of the offence, appears to be in the discretion of the justices, he says, " the last " class are such as must be bailed upon offering sufficient "security;" such arc, " persons of good fame charged " with a bare susiucion of manslaughter, or other inferior 'Mi " homicide, such persons being charged with petit larceny, " or any other felony not before specified, or with being " accessary to any felony." Cltief Just ice. "^l am sorry to sec quotations made from law authorities, when il must be known to the (icntlemen making them, that they can have no influence whatever on the decision of the Court. Hawkins and lilackstonc are undoubted authorities, but all that has been cited from them, refers to the law as it stood at a different period, namely, before the statute of Edward was repealed. If, in reading Hawkins, you had gone on a little farther, you would have seen that modern rules have completely changed the practice upon this head. In Hawkins, at the very place where you stopped, you might, (had you read another sentence), have seen, that the doctrine of bailing accessaries of course^ had been questioned as early as the 21st Edward IV.; and he remarks on the very case cited of the 25th Edward III. " that it may be more reas«Mable to intend in the above " cited case )f 25th Edward III. that suclj person was denied the' ;nefit,of mainpiise by reason of the notoriety of his guilt, ; for he says, it seems clear both from the Register, Fitzherb?rt a-d Dalton, that accessaries to felonies are not to ^n bailed, unic s they be of good reputation, and if the want of i^ood reputation, which is, at the most, but a very 'l^/*. inducement to presume them guilty of a particular rriioe, be a good cause to ex- clude them from thr '-.-.y efit of mainp - e, which is given them by the genera' woi ^s of the statute, it seems strange the strong and unquestionable evidence of heir guilt should not much more exclude them from it, specially considering that it is an allowed rule, that bail is only proper, where it standi; indifferent whether the person accused was guilty c innocent." But that is not the case in the present instance, for later statutes have put the crime charged beyond the benefit of clergy, and therefore, in case of conviction, it is only the life of the person that can satisfy the justice of the country. Hawkins continues, " and since later statutes have, in many instances, excluded accessaries before the fact, from the benefit of clergy, it seems absurd to say V (U- persons notoriously guilty of being accessary to the cvAme, which excludes them from the benefit of clergy, shall be admitted to bail, whereas, if they had been committed to prison on the like evidence of guilt as principals, for felonies within the benefit of clergy, or jvtn for inferior offences of an enormous nature, they u n <( it it it It tt (( it (I it <( t( (C ■10 ..n I HI' '' cuuld not have had the like privilege." Aud surely this reasoning is fair and correct. Before the passing of the Act referred to, all accessaries were bailable, bit the right having been taken away, it is now a question for a Court exer- cising its discretionary power, or rather, is a rule for their guidance, that it be " a matter of indifference whether the ** person accused were innocent or guilty." The prisoner is charged with an offence from which the right of being bailed is taken away, and it is impossible to say, that it is one of that light descri])tion that it is a matter of indiiVer- cnce whether conviction does or does not follow. It is not a good reputation alone which will justify a Court in bailing necessaries. Their guilt must not be notorious, and the reasonableness of this restriction is apparent. " Since" (says Hawkins) *' the general words of the statute con- ** cerning the replevising of accessaries are agreed to receive " the above-mentioned limitations, ' that they ought to be of good reputation, and to plead first to the indictment', if the principal be attainted, why should it not be reason- able to admit this further restriction; < that their guilt be not notorious,' ' which seems admitted to be implied in " most of the other clauses of the statute, which yet are *' peimed in as general terms as that relating to accessaries.'" This man is charged in the indictment with an unclergyable ofl'cnce, and tiic presumption is at present against him, inas- nuR'h as twelve men, on their oaths, have returned the in- dictment a true bill. The matter, however, is set at rest by the later statute. " But this matter seems at this day," (continues .Serjeant Hawkins), " to he put beyond all ques- tion by 31st Car. 11. cap. 2, sec. 21, by which it is '' recited — ' That many times persons charged with petit ** treason, or felony, or accessaries thereunto, are com- •* mitted on suspicit)n only, whereupon they are bailable or ^* not, according as the circumstances making out that sus- ** picion are more or less weighty, &c. &c.' " And there- upon it is enacted, *' That no person ti»leiit with the justice of the case. Attorney-General. — May it please your Lordships — Gen- tlemen of the Jury. As you have just heard from the learned Solicitor-General, the prisoners at the bar now stand before you, charged with the crime of murder in the Indian Territories, and are put upon their trial here under the provision of the statute for transmitting, where consi- derations of a local or municipal nature, shall indicate that justice may be more conveniently administered in the Upper, than the Lower, Province, any crime or otTence committed in the Indian Territory, " for trial to that Court " of the Province of Upper Canada, in which crimes or " offences of a like nature are usually tried, and where the " same would have been tried if such crimes or offences *' had been committed within the limits of the Province of *' Upj)er Canada." Original cognizance of offences com- mitted within the *' Indian Territories, or parts of America ♦* not within the limits of cither of the Provinces of U|)per " or Lower Canada, or of any civil government of the ** United States of America," is given by the Act of the 43d of the King, to Lower Canada, but authority is given to the Governor, Lieutenant-Governor, or person administer- ing the government for the time being, to transmit, under the circumstances I have before mentioned, by an instrument nnder the Great Seal of Lower Canada, any crime or offence for trial to Upper Canada. Therefore, Gentlemen, being once informed of this fact, and the Great Seal Instruments being exhibited, you can have no difliculty in considering your- selves, (as in reality you are), impannelled to try an offence con)mitted in your own district, for so the indictment does charge it. Having stated this to you, Gentlemen, my province of advocate is very limited ; it is merely to lay before you an outline of the case, which we shall support by evidence. It is not my duty to expatiate on criminal law, or to put this on any other footing than that of ordi- nary cases; wherever it may differ, you will have the benefit of every assistance from their Lordships. It must be a matter of satisfaction, however, to reflect, that twelve men more completely strangers to the difficulties which have existed in that unfortunate country, men more completely unbiassed, men more anxious for the investigation of truth, could not perhaps have been found. It may, nevertheless, have come within your knowledge, that the Earl of Selkirk, about six years w^c, connnenced a Settlement in that i)arl of the country, anil that dilHcultics, to which, happily, we 45 arc strangers in this Province, have existed hetween tlie traders and others residing there, or following their occupa- tions, i have only, if such should he the case with any of you, Gentlemen, to beg that you will divest yourselves entirely of every recollection of any thing that may have heretofore reached you on the subject, and, impressed only with the sincere desire of rendering impartial justice, attend alone to the evidence which will be exhibited before you, and the charge you will receive from the Bench. Having taken the liberty of oifering these preliminary remarks, I shall proceed immediately to place before you a brief out- line of the case, and of the nature of the testimony which we shall produce in support of the charge. The Settlement which I have before mentioned to you, Gentlemen, was erected in a country where a number of merchants, asso- ciated under the name of the North- West Company, have been accustomed to trade, and its population consisted chiefly of persons who had emigrated from the parent state. They had been settled there for four or five years before this unfortunate and horrid catastrophe of the I9lh June, as farmers ; they followed their agricultural pursuits, houses were built, their farms were cultivated, and every thing was proceeding according to the ordinary course of a new settle- ment. In the vicinity of this settlement, at the Forks, as they are called, of the Red River, was a fort called Fort Douglas, which was occupied by Mr. Semple, the unfor- tunate gentleman whose death is charged in the indictment, and who was the governor of a territory ceded by the Hudson's Bay Company to the Earl of Selkirk. The natural state of the country. Gentlemen, had this infant Set- tlement experienced no previous disasters, would render it necessary to have a place of strength in its neighbourhood, and this fort was such, being constructed at the Forks of the River Assiniboin and Red River, contiguous to the farms, and serving as a residence for the Governor, Sheriff, and other officers of the colonv. A few miles below this fort was the Settlement, extending along the Red River for the space of two or three miles, in the same way as settle- ments or new villages do here. It will appear in the course of this trial, that from some reason^ which the witnesses will detail to you, apprehensions of the most serious nature had for some time been entertained, that the Settlement was to be attacked. On, or a little before, the 19th June, it is certain that considerable alarm existed on this subject, o'ving to intelligence which Mr. Semple received, that the r ^1 <:..il ^'1 •A \:^' !l I 46 Jndinns, and Bois-brules, at the insligaliun of the Frencli traders, (the name by which the North-VVest Company are distinguished in that country), were about to attack and destroy the Colony. This information caused them to be much upon the watch, and as will be fully detailed to you by the first witness we shall call, in the evening of the 19th June, a report was made by the person at the watch- tower, that a number of persons on horseback, to the extent of about forty, were passing the fort at some distance, and going towards the Settlement, which, as I have before ob- served, extended about three or four miles below. Upon this report being made, Mr. Semple took a spy-glass, and went to the look-out station, whence he perceived that a great number had actually passed the fort, mounted on horseback, and were going towards the Red River Settle- ment, which, being a very unusual circumstance, led Mr. Scrapie to fear that the information he had received of an intended attack, was but too correct. It is material to mention to you, Gentlemen, that these persons vvcre painted and armed more than is usual. Their being painted and disguised forms a very material fact, because it shews a premeditation to commit hostilities, it not being the custom of the Indians and Bois-brules to paint themselves, except on warlike pursuits, and, when you consider the information which had been previously received by Mr. Semple, will be found a circumstance strongly corroborating its correctness. Governor Semple, seeing that this party of horsemen were proceeding to the Settlement, directed about twenty men to follow him in the direction tiiey had taken, to ascertain what was their object ; they took their arms with them, but no ammunition. That these persons went out with no hostile intention, you will, 1 think, consider evident, from there being but about twenty who went, whereas there was a much greater number at the fort who could have gone, and indeed were desirous of going, but Mr. Semple only allowed about twenty to accompany him. As they pro- ceeded along the road which led to the Colony, they were met by a number of the settlers, who were running to the fort for protection, and crying that the Half-breeds were come. No notice, it appears, was taken of these persons, but Mr. Semple and his party continued to advance towards the Settlement. They had not, however, proceeded far, before they observed, behind a point of wood, thirty or forty persons armed and on horseback, but upon a nearer ob- servation, they discovered it to be a more numerous party 47 amounling, as tliey then supposed, to fifty or sixty persons, the whole mounted and armeu. Upon this it appears that Mr. Semple and his party stopped j and, as appearances were now so ahirming, a Mr. Bourke, who will be examined before you as a witness, was sent by Mr. Semple back to the fort for a field-piece, and as many men as Mr. M'Donell, the Deputy- governor, could spare. Mr. Bourke, however, not arriving with the cannon and men as early as Mr. Semple expected, they proceeded on again, and had not gone far before the Half-breeds advanced upon them, and surrounded them in the shape of a half moon, or semicircle. They were not far from the river, and by the Half-breeds forming them- selves into this figure, they completely cut otT all commu- nion between the Settlement and Mr. Semple's party. Ft will be very necessary, Gentlemen, that you bear in mind, that up to this moment, nothing, on either side, of a hostile description had occurred, nor any, except that a gun had by accident gone oft" in the hands of Mr. Holte, one of the persons who was afterwards killed, and Mr. Semple re- proved Mr. Holte for not being more careful of his arms. 1 have mentioned the circumstance, that you may be aware that, when during the trial we speak of the first firing, we mean the shot by which this same person, Mr. Holte, fell, although, In the accidental manner I have related, a gun did go off previously, but it was some time before the affray, and had no connection with it. They had not been long surrounded by this large party of armed and mounted men, before one of the prisoners at the bar, Francois FIrmin Boucher, (the least of the two,) advanced towards Mr. Semple, and asked, " What he wanted there ?" To this interrogatory, which was made In a very authoritative and insolent tone, Mr. Semple replied by enquiring of Boucher, " What he and his party wanted?" Boucher said, "we want our fort," to which Mr. Semple rejoined, *' well, go to your fort." Boucher then, In a most daring manner, said, " you damned rascal, you have destroyed our fort." Mr. Semple, although a man of extremely mild manners, and of a highly cultivated mind, was, as might be ex- pected, indignant at such an address, and incautiously caught hold of the bridle of Boucher's horse j a contro- versy ensued, or rather a few words passed between them, previous to the melancholy catastrophe, the particulars of which will be detailed to you by the witnesses, according as their situations afforded them an opportunity of hearing. It will, I believe, appear from the evidence, that at the If i {}'■ 48 same time Mr. Sompic also laid his hand on the stock of Boucher's fusil, and instantaneously two shots were fired in immediate succession, by the first of which Mr. Holte, whose name was mentioned before, fell, and by the second Mr. Semple was wounded. On receiving his wound he called out to his people to do what they could for themselves, but they, perceiving him struggling in the agonies of death, almost immediately, whether from panic, or from affectionate attachment to their governor and friend, you will judge, gathered round him, and made no resistance. Whilst they were thus situated, gathered round the dying man, a volley was poured in, by which nearly the whole were killed. Mr. Sherwood. — I object, my Lords, to Mr. Attorney- General making statements of this kind. We are not indicted for pouring in a volley of shot, and killing a num- ber of persons who are not named ; we stand here to answer a specific charge ; that of the murder of Robert Semple, and upon that charge the Attorney-General undoubtedly is entitled to open the evidence to the Court. But I submit that Mr. Attorney-General has no right to go into a long statement of the supposed murder of a number of other persons, for the purpose of prejudicing, or the effect of which may be to prdudice, our case. Attorney -G&ieral. — One murder is the same as another, in the scene of confusion which ensued, and if I prove that Mr. Semple was killed, and that the prisoners were there when he was killed, though I may not prove by whose individual agency he actually lost his life, yet they must be found guilty of murder, because to be present at a murder is, in the eye of the law, to be guilty of it ; and it is necessary, in opening the evidence to the Jury, that I acquaint them with the whole of the melancholy circum- stances, as best accounting for the uncertainty that may appear as to the individual who actually killed Mr. Semple, whose particular murder is charged in the Indictment at present before the Court. The prisoner Brown, it ap- pears, is rather a superior man for his station ; he was educated at Montreal, and I shall prove that he acknow- ledged that he was engaged in the affray, although he might not perhaps, have admitted that he aided Cuthbert Grant to kill Mr. Semple individually. I state to you. Gentlemen, and I think the Court will confirm me in so doing, that if I prove, by any evidence, that Paul Brown was present at the time that Governor Semple was killed, although I may ID not prove tliiil he was aclually kllltd hy Cullibnt (iranf, Vft till' prisoiuT is as clearly guilty of the iiiurilor, as il' I (lid prove lliat the iiulividual, Cuthbert lirant, charged in the Iiidiclnjent as the murderer, was so in fact, for, Gentlemen, 1 am satisfied their Lordships will tell you, that whether Mr. Semple was killed by the person named in the Indictment or not, if the prisoners were present at the time of the murder, they were aiding and abetting it, and are guilty of the crime, no matter by whose hand the unfortunate Gentleman met his death. 1 take the liberty, (jentlcmen, of remarking to you these principles of law, because, thank (Jod, in this civili/cd and happy part o'' His Majesty's dominions, it is scarcely possible, or even ne- cessary, that you should be ac(|uainted with them ; for here, by night as well as by day, we have the security of the law as a sure protection against scenes s'lch as those, which, I am sorry to say, will be detailed to you in the course of this trial. It is only necessary for you, Gentlemen, in endeavouring to attain the ends of public justice, to be satisfied that A, B, or whoever may be charged as having been killed, actually was so, and then. Gentlemen, any act of the prisoners or others, aiding and abetting the murder, though it might be committed, in point of fact, by adiiferent person to that charged in the Indictment, con- stitute such individuals guilty of tlie murder, either as principals or accessaries ; as principals in the second de- gree, if present at the commission of the crime ; as accessa- ries if absent. It is only necessary, in siiort, for me to satisfy you that the murder has been actually ])erpetrated, the prisoners being present, and I sustain the Indictment, and they, of course, are amenable to justice. The (irst witness whom I shall call will be Michael Heden, who will recount to you, in a very direct, not a circumstantial, manner, who fired first : he will narrate to you all the circumstances that occurred, from the moment of lirst seeing these people to the end of the melancholy catastrophe. He will relate to you, Gentlemer,, that from sixty to seventy persons came down with an intention to drive these settlers from the colony, which it appears had been an object of dislike to the persons accustomed to trade in this wild country : but, Gentlemen, whatever were the pursuits of those settlers, whether those of husbandry, or any other, whilst they were peaceably engaged therein, there was nobody had any right to disturb them. I do not know whether, from the too great anxiety that pervaded Mr. Scmple's mind for the K / I ' t 60 Seltlcment, you may not Hnii that lii> iinndvisedly wrnt out of the fort to meet these people ; hot, Gentlemen, if you find in his going out nothing more than a very natural and even praise-worth v anxiety for the late of those, whom he considered as relymg upon him for protection, it can form no excuse to say, that if he had not cume out of the fort they should not have gone to him, ;iny more than, in ordi- nary cases, nn act of indiscretion, in itself unjustifiable, can be pleaded in justification of murder. Another witness I shall bring before you, i« John Bourkc, the person who was sent by Governor S( mpU- to the fort for the cannon, and with the message to Mr. M*[)onell to send as many men as he could spare. It seems tliiit Mr. M'Donell could only allow one man to go, who set oft" with Mr. Bourke and the cannon. It was very natural f(»r Mr. M'Donell to be desirous to keep the men who were in the foh with him, because, in case of attack, that must have become the place where at last they must have defended themselves, and where the settlers must have come for protection and refuge. When Mr. Bourke had proceeded about half a mile from the fort, he perceived that the horsemen had surrounded the Governor, and they heard the report of guns, and saw the flashes, but could not, at the distance they were, distinguish from which party the reports or flashes proceeded. Appre- hensive lest the cannon should be intercepted by the retreat to the fort being cut off, Mr. Bourke sent back the man with the cannon, but himself proceeded on, (being joined by eight or ten persons who had come after him from the fort), to the place where he expected to find Mr. Semple. — Ad- vancing farther, he perceived that the horsemen, whom he had previously observed surrounding the Governor, were dispersed over the plain ; but as he did not see any thing of Mr. Semple or his party, he determined to return. At this stage of this melancholy and horrid outrage, a circumstance took place. Gentlemen, which shews but too plainly the dis- position of that armed party to have been very different from the mere desire to protect themselves and their property, because, whatever might be the pretext for the attack on the twenty persons with Governor Semple, there could be none for that which was made upon Mr. Bourke after the lamentable affray had ended. Mr. Bourke, seeing nothing of Governor Semple, or any of the people who had ac- companied him, was dubious whether he should go any farther, or return, when some of the other party called out to him that Mr. Semple was there, upon which he advanced i I \ jte 61 a little ; but, from tlicir further language, doubting tbetrutli (if llicir ussntion, and fearing that the Uuveruur iiad met tIkHt fute which unhappily attended him, and that he might shiire a siiiiihir one, he endeavoured to eseape with the ]i(o|ile who were with him. In their retreat they were fired un by the ilalf-biceds, and Bourke was wounded, ar\d another man, named Duncan M'Naughton, wah killed. V'ou are not, Gentlemen, trying the prisoners at the bar for the murder of M'Naughton, but 1 feel it my duty to call your attention pai tiiularly to this incident, as shewing clearly the hostile spirit of this party : when all shew of resistance sub- sided, if ever any was made, they fired upon persons who could have given them no provocation, not having been near this scene of desolation. I fear, Gentlemen, that this circumstance carries too strong n cotiviction of the real intention ; shews too clearly the sanguinary disposition ; gives too great a colouring of truth to the circumstantial evidence which I have detailed to you, and shall in the course of this trial produce, to leave a doubt upon your minds, of the real object of this party being the destruction of the Settlement, of whi:,h the unfortunate Mr. Semple was Governor, by any means, however repugnant to justice and humanity; because, in these instances of Boarke and M'Naughton, no provocation by possibility could be given. There are other persons included in the Indictment as accessaries before and after the fact ; but to them. Gentle- men, you will give no attention, as it is solely with Boucher and Brown, the prisoners at the bar, that you are charged. In reference to them, Boucher undoubtedly was armed, and was very forward. Heeame out of the ranks, either voluntarily^ or was sent by Grant, (who appears to have had the principal command), and certainly made use of most insulting lan- guage to Mr. Semple, though he does not appear at the moment to have offered any personal violence. There is a paper. Gentlemen, to which I shall advert for a moment, be- cause it is ])ossible it may be produced as evidence ; it is nn examination of the prisoner Boucher, taken before a Magis- trate, and read and acknowledged by him. It would not be reasonable, nor correct, nor is it necessary, to read it at the present moment, but it is possible it may be read in evidence, though it sets out by most distinctly and unequivocally denying any participation in the murder of which he is ac- cused. Having done that, he says that he was sent, four days previous to the death of Governor Semple, by Mr. Alex- ander M'Donell, who was a Partner in the North-VVest k2 4 52 Company, from Portnge In Prnirle, for no other purpose but to carry provisions from tlioncc to the Frog Plains. He admits that it was proposed at first, in order to weaken the Hudson's Bay people, by the liois-brules, to carry oft' Mume of them, and that, assiiittnl by him as interpreter, one was actually taken p'l 'ner. Mr. Shcrtvooa ■■'■ nm sorry to i'iterruut the learned At- torney- (icneral, ,; r< isJcj. lii^i remarks so illegal, that I should be most cu'j .oly negligent of my duty, if 1 sat still. I submit, my Lords, that tlu whole course taken by Mr. Attorney-General has been a most extraordinary course; but the latter observations arc so perfectly illegal, that I appeal to your Lordships to interpose your authority to check it. C'liief Justice. — 1 shall not stop the mouth of the Attor- ney-General in opening the case, for not a word has been said that is not strictly in order. He must state the nature of the evidence by which he intends to prove his case ; when it is produced, if it is illegal testimony, oppose its being received, and if you shew it is so, it shall be re- jected : go on, Mr. Attorney-General. Attorney-General. — The object in view was, according to Boucher, to reduce the Colony by famine, and it was, with a view of weakening the Hudson's Bay people, proposed to carry some of them oft", and some three or four persons were taken prisoners. He stales that the firing began with the Hudson's Bay people ; and here I would remark to you, Gentlemen, that whether the party with Mr. Scmple are called the Settlers^ the ColonistSf or the Hudson's Bay people, is of no consequence, as the only difference between them is, that the Colonists are generally persons who have been servants to the Hudson's Bay Company, but their term of service having expired, they have become settlers in the Earl of Selkirk's colony, and the Hudson's Bay people are the servants of that Company; the difference, therefore, is not of the least importance to you ; but as, during this trial, there is no doubt but the whole of these terms may be made use of in describing the party opposed to the Bois- brulds, I felt it desirable that you should be acquainted with the distinction, though so completely unimportant to any question that can arise during the trial. Resuming what Boucher says, he asserts, that the firing commenced with the Hudson's Bay people, though the Bois-brules had wanted to fire, from a supposition that, as the people from the fort were armed, they meant to attack them. This, o;j Cjonllciiicii, is till* tenor uf liis cxtiiniiiutioti, tiikoii bciori* n Magistrate. Brown, the "tluT prisuner, denies being there at all (luring the bnttle ; but 1 shnll produce sutistuetory evidenee that he was there, lleden, the first witness 1 shall call, saw him there, and could not be mistaken, 1 think, as he knows him welt. To conclude, Gentlemen, if Cuthbert Cirant was the man who killed (jovernor Semple, in so un- provoked and premeditated a manner, from malice of heart, and the prisoners at the bar were two of the party helping and assisting him, they arc equally guilty of murder with Grant, because they were present at the time, and are con- sidered by the law as aiding and abetting the commission of the crime. But, Gentlemen, if Cuthbert Grant should appear innocent, either from his conduct resulting from provocation, v;hich might reduce his crime to an inferior degree of homicide, or that he did not actually perpetrate the murder, still it might be murder in them, and would be, unless they were included in the provocation, and that it was of a nature to deprive them of their judgment by an excess of passion ; or, though Grant did not actually kill Governor Semple, still these two men may be guilty of aid- ing and abetting his murder, which is the charge against them. They, Gentlemen, from the nature of the accusa- tion brought against them, are principals in the murder, although in that manner which the law designates as being in the second degree ; and it is not necessary to their guilt that we should satisfy you, that, in charging Cuthbert Grant as principal in the first degree, we have named the person who did, with his own hand, murder Governor Sem- ple ; for the moment that we establish that the crime was perpetrated, and that I'aul Brown and Franqois Firmin Boucher were present, aiding and abetting the murder — and if they were present, the law considers them as aiding and abetting — it becomes your duty to find them guilty of the crime whereof they are accused. I shall now proceed to call the witnesses on the part of the Crown, and you will pay attention to their testimony, as you will also, 1 am con- fident, to those who may be brought forward on the part of the prisoners, and, after receiving from their Lordships such directions as may appear to their wisdom required by the case, you will, 1 am sure, return a verdict which will do perfect iustice to the country and to the accused. Mr. Slierwoud, — In the course of the very extraordinary opening speech of Mr. Attorney-General, such one as, 1 may s;iy, 1 never before heard, il \^ not one of the leabt ex- ■i ]■' •i, ( 54 (raordinury, that this Mr. Robert Semple, w-tio is charged to have been murdered by Cuthbert Grant, has been con- stantly dignified with the appellation of G. terwor Semple. The Indictment charges that Robert Semple was killed and murdered; it says nothing about his being a Governor, any more than a justice of the peace, and in point of fact, he was just as much an emperor as iie was a governor. They called him Governor in the colony which my Lord Selkirk was establishing in this land of milk and honey, and whilst his title is kept, he, or any other person holding the situa- tion he occupied, may be termed there an emperor, or a bashaw, for what any body will cnre. The motive from which he is decorated with this title here, however, is ap- parent in a moment ; it is indeed too glaring to be con- cealed. 1 beg my Learned Friend the Attorney- General not to consider me as imputing to him the design, he is only following the narration which has been given tc him by the prosecutor, who has, to answer his own private views, dubbed Robert Semple a Governor ; but the object is to im- press the Jury with an idea that he had a legal right, — a lawful commission, an appointment from His Majesty or the Prince Regent, to act as Governor, and that all opposition to his mandates were a species of treason. Only let the impression of legal authority be once fastened on the minds of the Jury, and there is no defence to be brought forward which, as loyal subjects, they would consider entitled the prisoners to acquittal ; but let them see, as during the trial we will do, that this pretended authority was an illegal as- sumption of power, arrogating to itself prerogatives, such as are not exercised by the King of England, and very diffe- rent indeed will be their view of the transaction. Let Mr. Attorney-General call him here, as he has done in the In- dictment, Robert Semple, and all he charges us with, we are ready to answer and to justify, but as he was not a go- vernor, let us not be Chief Justice. — Do let the trial go on j it is no matter whether he was or was not a governor, or what he was called, or called himself; he is not to be murdered though he was not a governor. MICHAEL HEDEN, sivorn. Examination conducted by the Attornky-Gkneral. Chiij' Justice— WUixt countryman is this witness ? Is he Freiu'li or Englisli ? i 1 55 .'lltoniey-Gcnernl,-^Hc is English, 'iiy Lord, at Icnsl will speak Englisli. Hvden. — I resided in the month of June, 1816, and for some time before it, at the colony at Red River. 1 was blacksmith there. I had lived there a long time before, for a space of three or four years. In the months of April, May, and the beginning of June, of that year, 1 was there. I knew one Mv. Semple, his name was Robert. He came out to the Settlement in the fall of the year, IBl.'i, and acted as Governor. He was Governor of the Settle- mciit. 1 know something of the death of Governor Semple. Attorney 'General, — Well then, tell slowly and delibe- rately, the whole that you know about it, to their Lord- ships and the Jury. Hcden. — What all ? Am I to begin on the day he was murdered, or before ? /Jttorney-General. — As a fact, I will ask him, my I^rds, whether he liad, or whether generally they had, any reason to apprehend that an attack would be made upon the Set- tlement ? Heden, — We were warned in March by the Freemen and Indians in the neighbourhood, that the Settlement was to be attacked during the summer, and we were all much alarmed, because it had been attacked before, and we kepi a constant watch, after receiving the information, at the furt. Mr. Semple resided at Fort Douglas, which stands upon the Red River. There was a Settlement lower down upon the rivei ; a Settlement of the same kind as are upon these rivers J they were just beginning to build houses; there were none built at that time, th: settlers lived in tents, and in the fort ; the nighest part of the Settlement was about a quarter of a mile from the fort, and extended to about three miles below. There was a part of the land y which I doubt not he will go at i i h I J ;1 5fi f oiH.f (() llic ciicumslances vvhicli il is necessary lie .should ^ive evidence of. You know that Governor Seinple is dead. Wi'l you tell us all you know relative to his death ? Ileden. — Between six and seven o'clock, as I think, on the evening of the 19th June, that year, the man in the block-house, who was at the top, keeping a look-out, to sec if these people were coming Atlorney-General, — Do you think it was not earlier than six or seven o'clock ? Hedcn. — I do not know the time exactly, but it was six or seven o'clock, or thereabouts, 1 think, when the man at the block-house called out, a party of horsemen with two carts, were coming towards the Settlement. Governor Semplc directly went into the watch-house, and Captain Rogers with him, and looked with his spy-glass to see what they were. When he saw that they were armed and on horseback, he told about twenty of his people to get their arms and follow him, to see what these fellows were about, or what they wanted. The men, to the number perhaps of twenty-eight, were ready to go, but Mr. Semplo would only let about twenty accompany him. He had not got far when we met some of the settlers running towards the fort, saying, that the North- West servants were coming with carts and cannon, and that they had taken some pri- soners. Chief Jta^li ic. — Who was it said tiiat they were eoniing with carts and cannon ; and who did they say were coming with them? Hedoi.. — Jt was some settlers whom we met running towards the fort, who said they were coming with carts and cannon. They said tlve servants of tlie North-West Com- pany were coming, and that they had taken some of the settlers prisoners. We went on after hearing this for about a mile, when we met more settlers, wlio told us that they had botli carts and cannon. Governor Semple then told one of his men to go to the fort, and get a small piece of cannon which was tliere. It was to Mr. Jiourke that he gave these directions; he told him to make haste, and go to the fort, and get a piece of cannon, and to tell Mr. M'Donell to send as many men as he could spare. Mr. Bourke not coming back soon, we went on towards the Settlement_, and when we came in sight of the party of Half-breeds, they galloppcd uj) to us, and almost surrounded us, by making themselves into the shape of a half-mcoi . going to the river on the one side, and getting bi'yond us on the other. One 57 oJ their |)ci>|)Ie on horseback came up towards us. It was- Boucher. He came up towards us, and the Governor asked him, "what he wanted ?" and Boucher said they wanted their fort. He said, " we want our fort." Mr. Scmpic answered, " well, go to your fort," and Boucher answered, " you damned rascal, you liave destroyed our fort, you have took down our fort." Upon this Governor Semple said, " you scoundrel, do you dare to tell me so ?" and called out to some of our people to make him prisoner, and laid hold of the reins of Boucher's bridle. Chief Justice. — Was there any action accompanying the words made use of on either side ? how were they spoken ? Hcden, — They were spoken in a loud voice, but there was nothing done except that Governor Semple laid hold of the bridle of his horse, when Boucher told him he had destroyed their fort; and he kept hold of it for some time. When Boucher heard Governor Semple call out to us to take him prisoner, he slid off his horse on the other side, and ran away. Attorney-Gaieral. — At the time, what you have related, as having passed between Governor Semple and Boucher, took place, how far were your party from that of the Half- breeds ? how far was Boucher in advance of his party, and could you see what passed between the one party and the other r did any thing interrupt your view, or was every thing visible ? Ileden. — When Boucher came forward towards our parly, we were within about a gun-shot of each other. There was nothing between us but a few willows and brush, every thing was visible. As soon as Boucher slid oil" his horse, a shot was fired, and Mr. Holte fell. The Half-breeds fired the first gun, and by it Mr. Holte was killed ; tlierc was no firing before that, and inmiediately after another was fired, almost directly after, and Governor Semple fell. Attorucy-GciieraL — 1 beg your Lordship's pardon, but 1 will here ask him relative to the accidental discharge of Mr. Holtc's gun, to whicli I adverted in opening the case. I *'ear 1 am breaking upon your Lordship's notes, by not having taken it in the order of time, but it did not occur to me before. In coming along, did any of your party discharge a gun, or did one go oil" by any mcar.s, and if there did, tell us how it happoned, and where about you were at the time? Ilcdcn. — At about half a mile from the fort, Mr. Holtc's gun went oil' by accident, and Mr. Semple was very much I 'I * ^ '\ at) I •I I I w displeased, and told Mr. Holte very sharply, that he should be more careful of fire-arms, or he might kill somebody; this was some time before our coming up with the Half- breeds, and had no connection with the firing between the parties. It was quite an accident. The two shots of which 1 spoke, when I said they were the first that were fired, came from the Hal'-breeds. Cluef Justice. — Uy the first, 1 think, he says Mr. Holte fell, and by the secoau, Governor Semple. Attorney-General, — He does, my Lord. I shall now ask him how he was placed, because I want, from circumstances as well as his positive testimony, to shew, from the positions of the two parties, that the two first shots must have come from the Half-breed party. Where were you, Heden, at the time these shots were fired ? Hfnien. — I was on the right of the Governor, and very near him. All our party were withinside of the half-moon line, but they were scattered here and there, before the shots were fired by which Mr. Holte and Governor Semple fell. It was just as Boucher slid off from his horse, that the first shot was fired, and by it Mr. Holte fell. Attorney 'General. — You remember the parley between Governor Semple and Boucher. Were Holte and Btjucher during that time looking towards the half-moon line ? Heden. — Yes, they were. Attorney- General. — Were your party generally armed, and how ? — and, as I suppose you had guns, tell us how they were loaded. Heden. — My gun was loaded. Our guns were some of them loaded, and some not. Those that were loaded were loaded with ball, as I suppose. We had no other arms but guns. Boucher's arms consisted only of a gun, but others of his party hud tomahawks, bows, and arrows, and spears. Both Mr. Holte and Governor Semple fell by the two first shotSi, and after then, when the people had gathered round Mr. Semple, and were in a cluster, the volley was poured in, and nearly the whole were killed or wounded. Attorney -General. — Now, Heden, from the situation in which you stood, can you say that you know the two first shots came from the Half-breed party ? Hedcm. — Oh, my God ! I could not but knoWj for 1 saw all, and shall never forget it. Attorney-General, — Whereabouts was Governor Semple, that is, opposite to what part of the semicircle or half- n»oou l-itie was he ? 59 Heden. — He was pretty near the centre of the half-moon, and the two first shots canae from about the centre of the half-moon. 1 saw the smoke, and could not be r 'stake n. Boucher slipped off his horse before the first shut was fired, and ran towards his own party. There was none fired be- fore that. 1 did not see Boucher fire, nor do I know that he did fire. 1 do not know which of our people fired. I know that Mr. Semple blamed Mr. Holte very much for letting his gun go off. Attorney -General. — Did Mr. Semple, or any body else, give you orders to fire, or say any thing about it ? Heden. — Mr. Semple said, all he wanted was to see what those fellows were about, and that he wanted no firing at all. I heard him say that he wanted no firing at all, and 1 heard him tell some of his people to take Bouciicr prisoner, but not to fire, and if he had given any such directions, I must have heard them. There was no order of march kept up by our party, we went as it happened, or we liked. Mr. Semple gave no particular orders to his men how to behave. To the best of my recollection, he gave no orders at all. 1 am sure he did not give any to fire, nor did any of our people, to the best of my belief. At the time of the conversation between Boucher and Governor Semple, I was looking towards the Half-breeds, and I saw amongst them three Indians in blankets, and only three, and they did not fire. The Bois- brules, before any firing took place, gave the war-whoop ; they gave it as they were forming the half-ring. I got very much alarmed when I saw the people wounded, and in the confusion that took place 1 made my escape with my life. AUorney-General. — How long was it, or was it soon after Governor Semple fell, that *he general firing by which the otiiers were killed and wounded took place ? Heden. — 1 can not say how long exactly. I was very much frigiitencd when 1 saw Mr. Holte and Governor Semple fi?,ll. A short time after I saw the wounded men crying for mercy, but the Half-breeds rode up to them aiid killed them. Mr. Sherwood. — I beg leave, my Lords, to rise, not for the purpose of objecting to the testimony, though 1 think it very wide of the case, but merely to ask whether your Lord- ships consider it tegular ? if it is so considered, I have no objection to offer to it, because i shall meet it by simi.u. eviilcnce of foreign circunistancos and conduct of other persons, than lliusc at present introduced. 11 w m '»» , r.o ,W t% Chuf Justice. — Do lot tlie trial go on, unless you liarr sonif objection to make. If you have, state it, and you shall be heard. Attorney -General. — You saw Mr. Scmplc fall by the sccnd shot, do you know whether that shot killed him ? Heden. — 1 did see Mr. Seniple fall, but I don't know whether that shot killed him. As soon as he was wounded he called to his people to take care of themselves. He was wounded, as far as [ can guess, about the shoulder. Mr. Wilkinson said that after. Chief Justice. — You must not tell us what any body told you, or said ; you must speak only from your own know- ledge of circumstances. Heden. — I did not see Governor Seniple get up after he was wounded ; he did not while I was there. One M'Kay and I, in the confusion, made our escape, anv^ got to the river. Michael Kilkenny and one named Sutherland also got away to the river, and swam across it, ana by that means got safe. Mr. White, the surgeon, ihouHit also to escape with us, but wc were pursued by six men who fired at us, and woi'jsded him m the thigh, or the hip, and whilst tlscy were engaged in killing him, we v'scaped, M'Kay and 1, by II canoe, and Kilkenny and Sutherland by swiinining. Fn the course of the night we got back into the fort. On the next day I saw the dead bodies, and nine of them were xvpre brought in by the Indians, and among them was the body of Mr. Semple. 1 could not say wiier<; the ball struck him, or by which wound lie lost his life, as his body was all over spear marks, so that 1 could not distinguish one from another. 'J'he Bois-brulcs were very strongly armed ; they had, besides, guns, bows and arrows, spears and tomahawks. 1 saw a number of the Half-breeds the next day at the fort, and Culhbcrt Grant was amongst them. They took away a good deal of the property. The next day after the massacre we remained at Fort Douglas, and also the following day, when the Half-breed party, headed by Cufli'"Tt Grant, took all the public property, wnd all the settle, were obliged to go away, and a good deal of our things was taken from us. Chief Justice. — It is not larceny, Mr. Attorney, that we are trying, but a murder. You must keep your evidence to that point. Attorney-General. — Your Lordsiiip will see, indeed, I think must see, the impossibility of this case being tried with- out going into stafcments of the outrage connected with the murdrr, jl i^ easy to sec what the nature of the defence a'' Gl must l)e, and to substantiate the guilt of the prisoners, it is necessary that, by their subsequent conduct, I shouUI shew (and it is only for that purpose that it is introduced,) their prior intention ; but in so doing it will, 1 fear, be impossible not to mention other acts connected with the outrage of the I9th June. ('kief Justice. — It is very difficult, I admit, but it is a very dangerous path, on a distinct char-re of murder, to go into evidence of larceny, which happein d some days after. Any thing hearing on the charge of murder, you may go into, but you must not adduce evidence relative to oU'ences for which the prisoners are not upon their trial. Heden, — The Bois-brules encamped that night at the Frog Plains, and the next day they came to the fort, and ordered the settlers away. I saw Boucher at the fort on the next day ; he was not armed, but he came with the others. I know Cuthbert Grant, he was there on the day of the murders, and he came to the fort the next day. He is a Bois-brule, and was one of the band of Bois-brules. The Bois-brules insisted upon our giving up the fort, and going away from the Red River country, and a capitulation was entered into between Mr. M'Donell, the Sheriff, and Cuthbert Grant, by which the fort, with all the public property, was to be given up, and we were all to go away. Cuthbert Grant was with the Half-breeds at the time Mr. Semple and the others were killed. 1 know him very well, and I am sure I saw him there. He was painted. Mr. Sherwood. — I should submit to the Court, whether the Attorney-General is now within the limits of legal rules upon the point of evidence. 1 do not think it is competent to the Attorney-General to go into evidence of what occurred after the battle. We are not brought here to answer a charge of taking possession of a fort ; when we are, we shall be ready to answer, and I doubt not satis- factorily account for our so doing. It is a charge of murder which is brought against us, and I can not see what right Mr. Attorney-General has to go into other matters. The effect of his being permitted to do so will, my Lords, be this, we must go into the history of aggressions of a similar nature committed by their party, to shew that the taking of Fort Douglas had been provoked, and was only in retaliation for the taking of Fort Gibraltar by them, and so it will be with every circumstance not immediately connected with this battle, which they provoked. Let the Attorney-General confine his examination to the 19th June, or to whatever has I 63 u .i^ relation, in his opinion,to the death of Robert Scmple, so as to lead to it, and the case will be very short; but if Mr. Attorney is permitted to go into evidence of taking forts, I must do so too, and let him go ns far back as he may, we are furnished with matters equally early, to bring in justification of our conduct on all occasions. It has always been in self- defence, or in the endeavour to regain our own property, or in return for some aggravated attack and aggression, that we have interfered with the Earl of Selkirk, the Hudson's Bay people, the Colonists, or any of the persons or property of what may be considered the opposite party; and notwith- standing all that has been said to the contrary, so it will this day appear, if Mr. Attorney-General is, upon a specific charge of murder against Paul Brown and Francois Firmin Boucher, to be permitted to go into an investigation of all the difficulties that have occurred within those territories since my Lord Selkirk has been a trader there. Relative to Cuthbert Grant, or what he may have done, I do not see how it is to affect us in any measure, especially what he may have done after the alleged murder. Chief Justice. — Of the homicide there can be no doubt. The Crown charges that Mr. Semple was murdered. Whether his death was occasioned in a manner to render the charge of murder correct, remains to be seen, but, in ascertaining the fact, they must be permitted to shew the conduct of the persons who were engaged in this melancholy affray, to enable the Jury to distinguish whether it was as charged in the Indictment, murder, or whether, from the peculiar circumstances of the case, it resolves itself into any, and what, inferior degree of homicide. As to Cuthbert Grant, he is charged in the Indictment with having actually perpetrated the murder; he is the principal in the first degree, and it therefore can not be objected that evidence be gone into as to his conduct before the murder. /Attorney 'General. — I humbly submit, my Lords, that, even if he had not been named in the Indictment, the moment I prove him to have been there, I am entitled to go into evidence of his conduct, because I charged the prisoners with being present, aiding and abetting in the murder of Governor Semple on the 19th day of June ; and if this man was justified by any conduct of Mr. Semple's in the part he acted, even though it was to the taking of his life, still it might, from those very circumstances, support the charges against the prisoners. But having charged Grant as the principal, having charged him with committing the murder. . ■' ^ 6:^ I must acknowledge, that 1 can not see on what principle the l^enrned Gentleman questions my being within the strict rule of evidence, in laying before the Jury the whole of the conduct which he pursued on this occasion. My object is, by his subseauent conduct, to prove what was his prior in- tention, and thus enable the Jury to determine, from seeing the qtto animo of this party and their leaders, what were the real objects they had in view in going to this Colony, and nothing more than this, am I desirous of obtaining from the witness Chief Jmtke. — To any thing that occurred previous to the death of Mr. Semple, you may certainly examine the witnesses, but nc* to events subsequently, as they could not influence it. It is a charge of murder, and mast be tried as cases of murder are usually tried ; you may go into evidence of what occurred at the time, or previous to it, but not as to occurrences that took place subsequently, except as the prisoners now actually at the bar are concerned. jittomey General. — I am under the correction of your Lordship in this, as in all other cases, and shall, in con- ducting the trial, confine myself within the rule which you have prescribed. My only object was to shew, by their conduct afterwards, what had been the spirit by which they were actuated, and to strengthen, by the acknowledgments of the individuals who had been engaged in the horrid scene, the strong evidence of malice which the catastrophe itself too powerfully presents. I have conceived that, in thus endeavouring to elucidate the quo animo, which in nil cases of murder forms the first object of enquiry, I was not going beyond the rules by which the examination of witnesses in criminal prosecutions are regulated ; but, under your Lord' ship's correction, I shall leave the question 1 had proposed putting to the witness, as to the conduct of Cuthbert Grant, whom we charge to have committed the murder, and whom already we have proved to have been present when Mr. Semple received the shot, which we charge to have occasioned his death. Chief Justice. — In the manner you now mention, vig. to elucidate the principle of action, or the motives that go- verned the conduct of this party, you have a right certainly to put the question, having proved that Grant was there. Go on with the examination. jittorney-General. — Did you see Cuthbert Grant at the time of the firing on the 19th ; was he armed, and did he fire ? I n f^ % .1 ?1 64 «i r I ■ ;,i llfflt'u. — I «lid si'f Ciilhhert (iniiit lIuTr, and In- \vn>; armed, t^ut I cuniiut sny that he fired, for i did nut see liiin fire. I saw liirn <;n the next day at the fort, and he then acknuwU'dged ^iiat he Vad fired the day before, but he did not confess that lie had fired at Governor Semple. Me tuhl ine to be gone from that part of the country, and warned me wlien I did go, which he said would be in a day or two, never to come back, at the peril of my life. 1 saw nothinj; of the prisoner Brown till the next day ; he was not in the company of the party who came with Cuthbert Griuit on that day to the fort, but he came with them at the time we all went away, an<; icl't their party in possession of tin; fori. On the day after tlie uattle he came to my tent, and there he told me that he had been there the day before. He had two pistols in his sash, and he put one to my breast, and threatened to kill me, and I believe would have dun<; so, but for an Indian woman who was in my tent. Me told mu he had killed six Englishmen, and I should be the seventh. He talked both in Indian and French, in broken French, and he made signs by which 1 understood very well what he meant. I had not seen him before that day, but I am sure the prisoner Paul Brown is the man who came to my tent, and told me that he had killed six Englishmen. He did not say when or where he had killed them, he only said he had killed six Englishmen, and 1 should be the seventh, but he did not say where or when he had killed them. He said that he had killed six Englishmen, and that I should be the seventh, and that he would not leave the tent till he liad taken my life. By the six people he said he had killed, I understood him to mean six of the party who were with Governor Semple on the day before. I had no conversaticm with him at the time about Governor Semple, but that was what I understood. At that time I believe that Brown would have killed me, but that he was hindered. I do not know that Brown was in the affray of the 19th; I do not recollect to have seen him before he came to my tent. I have no recollection to have seen him on the 19th, but I am sure it was him who came to my tent on the 20th, and said he had killed six men, and I should be the seventh. I did not see Boucher after he joined his party, which he did di- rectly he slid from his horse. 1 am certain that I saw Cuth- bert Grant there on the 19th June, and that he was armed and painted ; but I cannot say whether he took the com- inainl, but 1 always understood that he did. Attorney 'General. — We only require from you what you Cs r)5 know ol ynur «)wn kno\v!t(lj^«'. l)i) you, Ifodpi), renillert any lliini^ flso rt-liitivr to the conduct of Ciillihi'rt (irmt, or of either of the prisoners Brown and Roueher, on the l\hU June, or any material fact connected with the death of Ciovernor Sempic ? If you do, rehitc it. Ilcdai. — I do not recollect any thing else that is parti- cular ; I helievc I have told all. /tltoriuy-Cienerul. — You have said, 1 think, that you saw (iovcrnor Semple fall, and that on the next day you saw his hudy. I think, in answer to a ([uestion I put to you, as to whether you saw any wounds which had appa- rently been giveii by the balls, you said the body was so coni|)letcly lacerated with the marks of spears, that you could not distinguish. Was that the case? Heden. — Yes, it was. His body was all over spear- holes, so that I could not see whether there was any ball- holes or not. I could not distinguish. Cross- ExaminatioUt conducled by Mr. Sherwood. HedcH. — I do not know how far it is through Lake Erie and th< oods to Red River country, but it is a long distan( There are no civilized Courts there, having Judges, Mr. Shenoood. — Do you know, that before this battle of the 19th June, in which your party appear to have got the worst of it, long before that, enmity and war subsisted between the Hudson's Bay Company and the North-West Company, and their servants, in that country ? Hedcn. — I know that in 1815 we were turned out of the Red River country, and the Settlement burned, and the fort ; by the fort, I mean Fort Douglas. Mr. Sherwood. — Do you know of any disturbances be- tween them before that, and that they were began on your side? Heden. — ^Ves, I know there were quarrels between them, but I do not know that the Hudson's Bay people began them. Mr. Sherwood. — Then I will try and refresh your me- mory. Do you happen to know whether there was any pemican seized by your people from the North-West Com- pany, or any of their people? Heden. — No, 1 do not know of any being seized. Mr. Sherwood. — Oh, you do not, then you was not one of the party, nor do not know any thing about it ? Chief Justice,— WhM is this about seizing pemican ? -.1 \ 'iu #. ^-^ ^ IMAGE EVALUATION TEST TARGET (MT-3) /. ^/ V t/. b 1.0 I.I UilM 12.5 ^ 1^ 112.2 «s ,^ ii„|2o ■a ■UUU -^ III m lUI IIIM 111.6 V] vl / c?m /.^ y cm ^* 4V V* // '/ ^^ PhofD^^hic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 v A •^ \\ ^^..1? n^^^^^^ ^ '^ W Uj. t I r !^f 6G If witness had seized it, or been engaged in seizing it, or any thing else, however improperly, how is such a cir- cumstance to be a defence against an indictment for murder ? Mr. Sherwood. — I beg jour Lordship's pardon, but the defence we shall set up for these men, renders it extremely important that I should have an answer, and a clear and positive answer to the question I have put ; and I am con- fldent, as I consider it important, I shall be permitted to put the question to the witness again. I ask you now, Heden, on the oath } ou have taken, do you know of a quantity of pemican having been seized by your party from the North-West Company, in consequence, or by virtue of a proclamation of Mr. Miles M'Donell, whom, I be- lieve, you called Governor M'Donell ? Do yoa, or do you not? Heden, — No, I do not. I was not there when any was taken. Mr, Sherwood.— Vety well. In what capacity did you go to this land of promise, and where did you go from ? Heden. — I went as a servant to the Hudson's Bay Com- pany in 1812, from Ireland. I agreed with his Lordship's agent at Sligo. I was to work as a blacksmith for a year for the Hudson's Bay Company, and then to go to the Settlement, and have lands. I went there by the way of Hudson's Bay. There were no quarrels there in 1812 ; at least, I heard of none. I do not know if the lands I had were bought from the Indians or not. There is not in that country a surveyor-general's office, or a council-office, as there is at York, to grant lands there. I did not pay for them. It was agreed with Lord Selkirk, I was to have lands there before I went. Mr. Sherwood. — ^Then how dare you, or any body else, go and take lands in that country, any more than this ? Would you think of taking lands in Upper Canada, with- out paymg for them, or without a deed, or a scrape of a pen, to shew your right to them ? Do you know who gave Lord Selkirk authority to let his agent agree to give you lands there ? Attomey'CreneraL'—I must appeal to your Lordships, at once to stop this most irregular and unprecedented course which the gentleman is pursuing. It is permitted to the prisoner to cross-examine witnesses, it is true, but it must be to the facts of the case, to circumstances to which he has given evidence in his examination in chief. What can .>.. IE*. i 67 the nature of this witness's engagement with the Hudson's Bay Company, or with the Earl of Selkirk, have to do with a charge against the prisoners at the bar for murder ? I ap- peal to your Lordships to interfere, and put a stop to a course of examination so completely beside all rule. Chief Jxi slice. — It had been the usual practice, that any questions which a prisoner might wish to put, should be be propounded by him to the Court, and by them put to the witness. It was the old-fashioned way, and it is a pity it was ever changed. Lenity, however, to prisoners has led to a change in the practice, and Courts now are in the habit, upon the application of a prisoner, to assign him counsel, but I repeat that the indulgence is so frequently abused, that it would be well if it had never been allowed to creep into our practice. If you intend to cross-examine the witness, it must be conducted according to the practice in ordinary cases ; we can not allow you to go into matters totally irrelevant. It is completely misusing the indul- gence that the humanity of our practice has, most unhap- pily, introduced into our criminal Courts, and that at a very late date too. Mr. Sherwood. — I am aware that the allowing to priso- soners this privilege is the humane introduction of a late day ; and I recollect also, that it was the old practice, not only, not to allow to prisoners the advantage of Counsel, but also not to permit witnesses to be examined in their behalf. This we all know was the old practice. Chief Justice.-— And it would have been very well for the real interests of justice if the rule had never been changed, for the petulance of Counsel, and the unrestrained license which is assumed in the cross-examination of witnesses, and on examinations in chief of prisoners' witnesses, is such, that the humane alteration, as for the good it produces, is more than overbalanced by the evils that the abuse of a well-meant humanity have clogged the administration of justice with in our day. Mr. Sherwood.— 'In ordinary cases, it is the practice when a witness on the part of the Crown has been ex- amined in chief, that the Counsel for the prisoner shall cross-examine him; and so ful'y countenanced is this practice in our day, that to the Counsel in conducting a cross-examination, are given privileges which are not ex- tended to the examination in chief. In this, which is an extraordinary case, I shall imagine we might exercise the privilege to its fullest extent. It is a case of such an extra- f2 .^1^ 68 u I M ordinary nature, as imperiously to call for it ; it is a case such as perhaps never came before a Court of criminal jurisprudence. Chief Jmtice.'— It is a case of murder committed in the Indian Territory, and is, under the Act, to be tried in the same manner as if it had been committed in the town of York, where, in fact, the Indictment charges it to have been committed ; there is, therefore, nothing more in it than in an ordinary case of murder, at least nothing to induce us to let you pursue that course of cross examina- tion. Mr, Sherwood.— It is, my Lord, a case of murder, and, as your Lordship remarks, it must be tried under the sta- tute, as cases of murder generally are ; it is nevertheless a case completely m generis ; and in the conduct of any case, whether the oft'ence occurred at York or at Red River, we must, be more or less governed by the particular circumstances which are connected with it. Applying this, which I consider to be a general rule, to the present case, I say, though one of murder, and to be tried in the same manner as if the offence had been committed in the Pro- vince, it is a most extraordinary case, and I humbly con- ceive, were your Lordships as fully acquainted as I am with the facts connected with it, 1 should not have been stopped in my examination of the witness. Mr. Attorney-Generars opening was an extraordinary one, and your Lordships, I am sure, will do me the justice to remember, that I took the liberty of remarking, at the time I appealed to the Court to interpose its authority, and compel that Learned Gentleman to confine himself to the circumstances actually connected with the affair of the 19th June, and again during the examination of this man, when I made a similar appeal, or rather when I asked whether the Court thought it in order, that, if that was your Lordships' opinion, I must meet it by similar evidence, of circumstances foreign to the abstract charge of murder. I am now doing so. We have already heard a great deal in Mr. Attorney's address to the Jury, of a Settlement, of a Colony established by my Lord Selkirk, and a great deal more of it shall be heard during this trial, as well as of its Governors, as they are facetiously called. Mr. Attorney follows up his speech by examining this witness as to attacks made on this Settlement, and not content with extracting every thing which, however uncon- nected with the affair of the 19th June, might, as having happened before, by remote possibility, be connected with .^,.— — 1^— .* 69 leet it )stract ilready Jury, felkirk, is trial, I called. this id not incon- laving with it, he goes beyond the death of Robert Semple, into an examination of the conduct of a number of persons to these settlers, to prove, as he says, against Brown and Boucher, the prisoners at the bar, the murder of that indii'dual. This witness, Heden, is a very proper person to bring for- ward for the purpose, and I ask him by what right he held his lands there. All he appears to know about it is, that he was there ; but I am going on to shew that all the title which either he, or those who sent him there, had to this flourishing Colony, was the sturdy right of possession. 1 am going on to shew that, not content with taking the lands without any title, and then quietly living on them, they assumed to themselves lordly, aye, more than kingly, authority. Not only the land they occupied was to be theirs, but the beasts of the forest, the fowls of the air, and the fish of the rivers, and the lakes were to be theirs too ; and the actual lords of the soil, the Bois-brul^s, who had been enabled to live by means of hunting and fishing, were no longer to exchange for their necessaries, which their wants required, the surplusage of the chase, as they had for a century been accustomed to do, with the traders frequenting their country. No, the new-fangled Governor issued his proclamation, declaring they were to trade with nobody but himself; and if they were detected in disobeying his mandates, or it was suspected they would do it, their property was taken from them. I was about asking this witness whether this state of things existed to his know- ledge ; and if he had admitted a knowledge of the famous proclamation of Governor M'DonvU, as he was called in the Rec. River country, I should have extended my enquiries as to what had been done under it. I shall hereafter make evidence of this proclamation, surpassing in its assumption of prerogative all that ever were issued by regal authority, and I shall prove the conduct which followed it. Mr. At- torney thinks it necessary to shew that Fort Douglas was taken; I think it necessary, and shall shew, that Fort Gibraltar had been previously taken, and so I propose to do with every extraneous circumstance that may be produced on the part of the Crown. If Mr. Attorney confines himself to the 19th June, I shall shew that all we did then, was in self-defence, and therefore justifiable; whilst, if he goes back to circumstances of an earlier date, so shall I too, and 1 shall shew that such was the state of that country, arising from the disputes occasioned by the conduct of this Colony and its adherents, that it was only ;i great trespass that could '1 ■} 70 have been committed there, and not murder. This is the defence which the prisoners have to present to the Court if permitted, and I hope, in conducting it, I shall not incur the charge of petulance in counsel, which your Lordship has so strongly characterized as more than overbalancing the benefits of the humane alteration of our system of criminal jurisprudence, which formerly did not allow Coun- sel to prisoners, or witnesses to be examined on their be- half; but, whilst I avoid exposing myself to such a censure, I shall insist on all that I consider my right, from having been appointed of Counsel to the prisoners, and 1 have stated to the Court the nature of the defence I intend to offer. Attorney-General. — I consider it to be one that is com- pletely inadmissible, and shall resist it. If in this Indian country they do not consider that killing a man in cool blood is murder, and that they are amenable to ji-::cice for so doing, it is time they were better instructed. The ob- servation of the Learned Gentleman, as to my having pro- duced evidence of what took place after the horrid scene on the plains, and of the course which he intends to pursue in consequence, I answer, by submitting to your Lordships the absolute necessity which exists for sustaining the charge against the prisoners, that I shew the intention with which these persons came to the Settlement. How am 1 to prove their intention, but by their conduct ? We say that the object for which they set out from Qui Appelle, was to destroy this Settlement. They allege that it was merely to carry provi- sions. In proving our assertion of their object to be correct, it is indispensable that I bring their subsequent conduct be- fore the Jury, and shew that ihey effected that which I say they set out to accomplish. But is my doing so to admit the gentleman to go back to every aggression which may have been committed by any of the servants of the Hud- son's Bay Company, or settlers of the Colony, and thus set off one crime against another? Admit that Fort Gibraltar was taken, that it was an unjustifiable aggression, (though, if even that affair was gone into, the very reverse would, 1 believe, appear), can that be adduced as a justification for the murder of twenty-one persons ? Admit even that murder had been committed on the other side, still is one murder to be set up as a justification for committing another ? The observations do not at all apply. If it should not be in the power of these persons to shew that they had a legal right to the lands they occupied, still the absence of this right 71 does not justify a party of sixty or seventy persons to come and shoot them. If this has been considered in that un- happy country to be law, or that the right existed of their recovering even that which belonged to them, it is, I re- peat, high time that they were taught to the contrary ; and it is sincerely to be hoped that these trials may have the effect, by shewing that individuals who travd in that coun- try are still under and amenable to the law. Mid that His Majesty's subjects, so far from being out of hit protection^ because they are in a distant part of his territory, are as fully entitled to it, as if they were living in the most civilized part of his empire. Mr. Sherwood. — ^The persons trading into this country are undoubtedly entitled to the protection of His Majesty's government, but it nevertheless cannot be considered as a part of His Majesty's empire. It cannot be a compo- nent part of his dommions till purchased from the abori- gines. These persons, calling themselves the settlers or colonists of my Lord Selkirk, have assumed to themselves the right of taking a quantity of these lands, and had they merely proceeded to cultivate them, they would not have been molested, unjustifiable as was their settling there with« out leave from the aborigines. But when, beyond the rob- bery of their lands, thev establish and exercise a sovereignty or despotism, which is to prevent the Bois-brules from trafficking ; when they forbid them to hunt buffalo on the plains which God and nature have made their own, is it to be expected that these people will tamely submit ? or that, if it is attempted to take their property from them, they will not protect it ? Most assuredly not ; the consequence of attempting it we 6ee in the transaction of the 19th June. Here were a number of persons conveying provisions to meet their traders who would require it; they are prevented taking it the nearest and most convenient way, by water, because they would, by that route, have to pass Fort Doug- las, the residence of Mr. Semple, which he had fortified, together with the banks of the river, to prevent their pass- ing. Compelled by this circumstance to go by land, they proceed, and agreeably to the instructions they had received, they pass at as great a distance from the fort as the nature of the road would admit, when Mr. Semple, ludicrously called Governor, marched out, accompanied by twenty armed men ; and what is the reason assigned, even by their own witness, for so doing ? He wanted to see what these fellows wanted, being apprehensive they were come to take posses- \ 72 11 ^ion of this flourishing Settlement, where nothing cnn ever ripen, seeing that there, even in summer, it is no unusual occurrence to have frosts which penetrate five or six inches into the ground. He went out to see what these fellows wanted ; and they, seeing an armed force coming towards them, wished to know what they wanted, and sent one of their party to ask the question. According to Heden's own testimony, an assault was committed upon Boucher, who was the person sent from the Bois-brul^s' party; and it will, I think, appear very clearly in evidence before the trial is finished, that that assault was followed up by what might very naturally be expected, from the temper in which Sem- ple's party went out of the fort, viz. their firing upon the others. 1 shall submit, my Lords, that this country was open alike to all who chose to become fur-traders ; and that only for the purposes of commerce had either the one or the other party any right there, and for that purpose these rights were equal. The Hudson's Bay people haa as good a right as the North-West, and the North-West as the Hudson's Bay. If I shew that I was prevented carrying on my lawful trade, by my rival assuming to himself territorial rights which did not belong to him ; if he interdicts, or attempts to rob me of my property, and death results from it, the consequence is with him ; because it is in defence of myself and my property that I take his life. Resistance to these assumed powers has been made, and we are ready to justify it. It forms an aggravated part of the attacks which have been made upon us, that it is since this Settlement has been on foot they have been made ; and that, not only had those who established it no right even to make the Settlement, but that all their attacks are justified by reference to the proclamations and notices of the self- created Governors of it. We have heard a great deal about the philanthropy of establishing Colonies, during the course of these disputes, but the philanthropy of the founders of this Colony consists in an endeavour to extend their own commercial enterprises, by destroying their rivals ; and this Settlement forms a ren- dezvous for the former servants of the Hudson's Bay Com- pany, from which they can most conveniently intercept the supplies and returns of their rivals in the fur trade. We set out in our defence, by denying that the Hudson's Bay Company possess any territorial rights in this country, or any of any description beyond those of mere fur-traders. We admit they have a right to trade there, but so have we also. What I want to do away from the minds of the Jury / i or 73 iS) any impression that exclusive right or sovereignty belong to the Hudson's Bay Company, or their partner the Earl of Selkirk ; and [ wish thus early to correct the erroneous view which my Learned Friend's constantly calling the per- son charged to have been murdered Governor Semple in h'm opening, and then following it up by examining the witness as to the manner in which Governor Semple lost his life, might lead the Jury to take ; because 1 think it will not, for a moment, be denied, that the situation in which we stand must very materially depend, in relation to our guilt or inno- cence in the opinion of that Jury, on our proving that every power, beyona that of mere fur- traders, was an illegal as- sumption of authority. I shall, therefore, proceed with my examination of the witness with that view. You always call Mr. Robert Semple Governor Semple ; do you know how he happened to be called Governor, any more than any body else ? Do you know who made him a Governor ? Attorney-General. — Then, my Lords, . I continue my opposition, and I call upon the Court for its decision, whether they consider the mode which the Learned Gentle- man has stated he intends to pursue, one which they can permit him to adopt. I oppose the question just put. Chief Justice. — \Ve decide against you, Mr. Sherwood. Wc have nothing to do with these two Companies, and can not, therefore, allow you to examine the witness as to their quarrels. It is the opinion of the Court, not my own alone, that the question you have just proposed can not be put to the witness. \ Mr, L. Sherwood. — Though that is your Lordship's opinion, I do not suppose you wish to preclude our raising a question of law, and shewing that we were, under the circumstances of that country, incapable of committing murder there. This then we propose to do, and are pre- pared with authorities to support our position. We intend to shew that war existed between these two Companies and their servants, and therefore the deaths, vv^V^ch might take place in consequence thereof, could not be < ailed murders. Mr. Sherwood. — Our position is simply this ; that what from the different circumstances of the country would have been murder /jere, was only misdemeanor there, and I con- tend for the right to put the question I submitted before, because I have a legal right to shew whatever I can in jus- tification, and the stale of that country is a material point. ChieJ Justice.— Wc do not think so, because the Act says, ofiences shall be tried in Ihc same manner, tiiough com- • 74 mitted in the Indian country, as they would have been if perpetrated in the Province. Mr, Sherwood.-~l admit that, but I do not conceive that the Act of 1803 at all altered any law already in existence ; it merely provided for the trial of offences committed against the laws, and declared that, although there was not a civilized Government in the Indian Territories, yet offences committed there should be considered as oflRences of the same description and turpitude, and should be tried in the same manner, and subject to the same punishment, as if they had been committed in either of the Provinces of Canada, in the Courts of which Provinces this Act provides that offenders shall be tried. All that is freely admitted, but this does not create a new law. It makes no new offence, nor does it change the nature of any old one. That being the case, I contend then, what might be murder Jiere, from the state of that country, was not murder there. Where war exists in any part of the dominions of the King, and is not carried on against His Majesty, but between private individuals, we know it is only a misdemeanor, such as a riot or contempt ; whereas if it was against the King, it would be high treason. This doctrine is not only laid down by my Lord Hale, but a century afterwards by Sir William Blackstone. That offences may vary in their nature according to circumstances, is evident, and under this rule, that which is in some cases an atrocious felony, is in others only a slight misdemeanor. Sir William Blackstone, in treating of treason, says, vol. iv. page 82, the third species of treason is, ** if a man do levy war against our Lord the ** King.'' After describing that other taking of arms than with a design to dethrone the King may be a levying of war against him, and therefore high treason, he goes on to shew, that resisting the King's arms, may also be a levying of war. He then proceeds to shew what offences, in some degree resembling treason, and which would be so under certain circumstances, are not so, and he instances the case of the Barons of England in the feudal times. ** So if two sub- ** jects quarrel, and levy war against each other, then (in that spirit of private war which prevailed over all Europe in the early feudal times), it is only a great riot and con- ** tempt, and no treason. Thus it happened between the " Earls of Hereford and Gloucester, in 20th Edward I. " who raised each a little army, and committed out- " rages upon each other's lands, burning houses, attended '* with the loss of many lives j yet this was held to be no 75 f( high treas( , but only a great misdemeanor." The same doctrine is laid down in a much larger form by my Lord Hale, in his PI. Cor. vol. i. p. 13(5, and the solemn decision upon the case of the Lords Marchers is set forth. " In the parliament of 20th Edward I. (now printed in Mr. Ryley, p. 77)) >t appears there arose a private quarrel between the Earls of Gloucester and Hereford, two great Lords Marchers, and hereupon divers of the Earl of Gloucester's party, with his consent, cum multitudine tam equitum quarn peditum exierunt de terra iptkis co» mitts de Morgannon cum vexillo de armit ipsius comitis explicate versus terram comitis Heref. De Brecknock, et ingressi fuerunt terram illam per spatium dttarum leucarumf et iUam depradati juerunt et bona ilia deprte- data usque in terram dicti comitis Glocestiice adcbtxerunt, and killed many and burned houses, and committed di- vers outrages, and the like was done by the Earl of Hereford and his party upon the Earl of Gloucester : they endeavoured to excuse themselves by certain cus- toms between the Lords Marchers ; by the judgment of the Lords in parliament their royal franchise were seized as forfeited auring their lives, and they committed to prison till ransomed at the King's pleasure ;" although, says my Lord Hale, in commenting upon the case, I have read, *' although here was really a war levied between these ** two Earls, yet inasmuch as it was upon a private quarrel " between them, it was only a great riot and contempt, " and no levying of war against the King, and so, neither at " common law, nor within the statute of 25th Edward IIL if " it had been then made, was it high treason." The case of the Duke of Northumberland and the Earl of Westmore- land, immediately follows in Hale, but it is unnecessary that I should read it at length. The judgment of the Lords, to whose examination it was referred, to say whether it was high treason, after view of the statute 25th Edward HI. and the statutes of liveries, is in these words : *' Ad' " judgerent qe ceo qefuitfait par h comite n'est pas treason " ne felony mes trespass tant solement pur quel trespass le dit comite deustj'aire fine et ransom it volunt^ du Roy" These cases I adduce as strong evidence that, when the state of a country is such that the law is suspended by the quarrels of powerful individuals, as in those of the Earls of Westmoreland and Northumberland, and of Hereford and Gloucester, then, what, under other or ordinary circum- stances, would be felonies, are only misdemeanurs. This, I « It u t( ft tt t( (( (( tt tt tt tt tt tt tt it tt 76 contend, my Lords, was law before the 43d of the King, and that it is so still can not be doubted. The Act of the 43d did not alter any law, or make any new law, it provided only for the trial and punishment of persons who broke the laws already in existence. If this position is correct, and 1 think 1 can not be mistaken in assuming that it is, then I say, my Lords, that, owing to the state in which the Indian Terrritories, and particularly this lied River country, were, that what here night be felony, such as murder or treason, was there nothing but a great misdemeanor. Here un- questionably the very circumstance of a party of sixty or seventy persons going armed with guns, axes, scythes and sickles, would of itself be an offence ; for a party of persons to go riding through the country armed would here, un- doubtedly, be an offence ; but in this Indian country, it is unfortunately necessary that they should do so, for the purpose of self-defence ; and I add that, in this state of things, what at York, in the Home District, would be a high offence, at Fort Douglas, in the Red River, is not ; that that which would be murder here, is not murder there, owing to the irritated state of that unfortunate country. I consider that, in just and equitable defence of these prison- ers, I ought to be permitted to shew the state of this country, and the many acts of outrage and aggression which had been committed against the traders by the Hudson's Bay people and these settlers. 1 consider that I have u right to shew the exasperated state of mind in which these two great rival Companies were to each other. As Mr. Attorney-General has been permitted to shew that we took Fort Douglas, I have a right to shew that they had not long before taken one of our forts, cut down the picquets, and floated them to this same Fort Douglas, where they were found at the time, and to which Boucher alluded when he said, " we want our fort." Boucher, I fear, was, not understood by your Lordships, when the witness re- presented that Boucher said, " we want our fort." Your Lordships will, during the course of this trial, see that forts have been taken from us, as well as by us. Boucher's allusion was to the taking of Fort Gibraltar, a North-West fort, which was razed to the ground, and floated to this same Fort Douglas ; and this outrageous act formed only one of a train of vile aggressions, such as I think never was heard of in a court of justice before. This furious and flagrant outrage had been committed only a lit tie before, and if this party had actually been sent to retake their fort, 77 it IS I 1 do not concrivc it would have hern iinjiistlfinl)h', h)ok!ng at the stu(c of the country. Thnt the principle, which I huvc the honour of supporting by the authorities of Hale and Klackstone, is applicable to this case, I might be per- mitted to mention, is agreed by all the Counsel engaged in the defence in these trials, and they are not a few. 1, therefore, the more confidently submit to your Lordship, that I am completely entitled to go into evidence of any circumstance, which will have a tendency to shew the state of hostility in which these Companies were, and the exas- perated state of mind of their servants. Clii^' Justice. — We are desirous that every thing cal- culated to shew the innocence of these prisoners should be brought forward ; we are willing that you should shew the state of excitement that existed at the time of this truly lamentable alfray, but it can not, in the present instance, be a question that can at all bear on the case, one way or the other, whether or not these lands were ever bought from the Indians ? Whether they were husbandmen, traders, or settlers, or servants of the Hudson's Bay Company, is of no sort of consequence to the question before tne Court, which is, whether these two men, Brown and Boucher, are, or are not, guilty of murder ? We have nothing to do, at present, with any body else. Mr. Sherwood.^-So I should imagine, my Lord, and it was therefore that I considered the question of the Crown a very improper one, and opposed it. Mr. Attorney, however, was allowed to put it, and from the answer It appeared that Fort Douglas was taken possession of, and the Settlement was destroyed or broken up. This is no way connected with the charge of murdering Robert Semple, of which these two men are accused, and yet it may prejudice their case very much, if they were not permitted to shew that forts had been taken from them, and as to the lands, that they belonged to the Bois-brules, (of which people the prisoner Brown is one), and that these people had no right to them whatever, though they had taken possession of them. My question was to ascertain whether the Bois- brules acknowledged their possession. Chief Justice. — Your question might perhaps be so put as to ascertain whether they had a quiet possession, but it could not be permitted to be taken any farther. The ques- tion of Mr. Attorney-General was to shew the disposition in which they left home, and came to this place, and any s. H ( . ' f 78 thing that will shew the temper of mind of these people, must undoubtedly be evidence in an offence where the quo animo is the very foundation of the crime. On the other hand, you certainly are at liberty to shew any thing you can, that will demonstrate the temper of mind, created by cir- cumstances of continued irntation, to be such as must re- duce, on the part of the prisoners, this case from aggravated murder to manslaughter: so long as you shew a con- tinuance of this irritation, by proving that the state of excitability in which the tempers of these people were left by the contests in which they were engaged, never allowed their passions to cool, you may certainly go back to any distance of time ; but you must never lose sight of this rule, that it must be an uninterrupted irritation, of an extent sufficient to diminish the crime to manslaughter, if proved against the prisoners. Mr. SAenrood.— That, my Lord, is all we want. Nor should we ever have asked for that, had not the Attorney- General called this place a Settlement, and following up his opening speech, he would, by his examination of this man, (who is a very fit person), have led the Jury to infer that this was an infant Settlement of industrious farmers, who had keen completely rooted out of their legal posses- sions, without any provocation whatever, by these hard- hearted BoiS'brulds; instead of which, it will in the sequel appear, that this flourishing Settlement, without a single house, was nothing more than the camp of the hunters and servants of the Hudson's Bay traders. Attomey-General.-^\i matters not, as I consider it, whether they were settlers, hunters, or traders, they are equally entitled to the protection of the law, and to take the life of the one or other unjustifiably, is murder. There WAS, as I stated in my introduction of this case to the at- teotion of the Jury, a Settlement, and the object with which these people set out, was to destroy it. I have, by this witness, shewn that it was destroyed by them ; so far their acts correspond with what I allege was their original in- tention, namely, the destruction of the Settlement. CIdef Justice. — It appears rather, Mr. Attorney, to have been habitations than a Settlement. Mr. Shenoood. — ^And those the habitations of the servants of the Hudson's Bay Company, instead (^ agriculturists and farmers. . . . I £ i •^" 2*;? I 79 Cross- Examination f continued by Mr. Sherwood. Heden. — I wns in the battle of the I9th June, 1816. I did not see the cannon which the settlers we met said the Bois-brules had with them. Chief Justice (to Mr. Sherwood). — My brother Camp- boll has just spoken to me, to say that he wishes you most perfectly to understand, that though you are permitted to go back, you must go no farther th:m you can keep up a degree of excitement sufficient, if the prisoner should be found guilty of the death, to diminish the offence to man- slaughter. 1 therefore remind you of it agiun. Cross-Examination, continued by Mr. Sherwood. Heden. — ^The Bois-brul^s did not come to our fort on the 19th ; they kept at about a quarter of a mile distant from it, and passed it. We had cannon at the fort. Mr. Sherwood .-"Did you take them to the battle with you, or did Mr. Semple send for them afterwards ? Heden. — No, we did not. Mr. Semple sent Mr. Bourke for one, after the people met us, and said the Half-breeds had come with carts and cannon. Mr. Sherwood. — ^Did Mr. Semple want a cannon to see what those fellows were about, or what did he want it for, if he did not go out to fight ? Heden not answering for some time, the question was repeated, Mr. Sherwood adding, that be insisted upon an answer, though the witness was swearing in his own cause. Chiejf Justice. — Do not say that, Mr. Sherwood. He is a witness brought here on the part of the Crown, and en- titled to, and shall receive, the protection of the Court. Every man is bound to appear in Court and give his evidence in all cases when subpoenaed, whether of breach of the peace, felony, murder, or any other. Do not, therefore, talk of being a Mritness in his own cause, when he is here on behalf of the Crown. Mr. Sherwood. — I assure your Lordship that no word shall be used by me that is not well weighed ; he has told us he was in the battle himself, and before we have done with the business, we may perhaps give a very different appear- ance to the proceedings of the l£^h June, to what Mr. Heden has put upon them. You was in the battle, was not you, on the 19th June ? Heden. — ^I do not know that it was a battle. ^ ; • Mr. Sfcertoood.— Why I thought you said just now, that you was in the battle. I -u.) >j^^t>..^aKt.- , r •» 1 1 II I f>i I li 80 Hcden. — I do not know that it was a battle ; wc were ordered not to fire, but if it had been a battle, I should sup- pose we would have fired. We did not go to fight ; all the Governor said was, to see what those fellows wanted. Mr. Sherwood. — You had guns when you went out, you say ; had they bayonets to them ? Heden. — Yes, some of them had bayonets, not all. Mr. Sherwood.— U you did not go to fight, what did you want with bayonets ; were they to spear fish ? Heden. — I do not know. I only know that the Gover- nor's orders were, not to fire j he said he did not want any firing at all; he only wanted to see what these people wanted. He said, we must see what those fellows want. Mr. Sherwood. — Take care and don't swear too fast. As he was your Governor, you, I suppose, were bound to do all he told you to do. If he had led you out to attack this party, who had passed your fort without molesting it, you would have been bound to obey him, as you say he was your Governor ? Heden. — He was our Governor ; we always called him Governor, and obeyed him as such. Mr, Sherwood. — Now, I do not know whether, under the permission I have obtained for conducting this defence, your Lordship will be disposed to permit me to follow up the last question, by asking the witness if he knows who made him a Governor, because he was just as much, or no more, a Governor than he was a Bashaw; and we consider it extremely important to let the Jury have that fact before them in evidence, to counteract any unfavourable im- pression which Mr." Attorney- General's opening may have made. Chief Justice.-^You may call himj or they may call him, just what they or you will : Landlord, Ma-^'er, Governor, or Bashaw, it makes no difl^erence to the fact which the witness has most distinctly sworn to, viz. that they had re- ceived information that they were to be attacked, and in consequence thereof, had kept a constant look-out, and on the 19th day of June, a large party of armed horsemen being seen from the look-out place, about twenty of them accompanied Robert Semple, whom they had been accustomed to call Governor Semple, to see what they wanted ; that a parky took place between one of the other party and Mr. Semple, in which high words passed, and Mr. Semple told his people to make Boucher, one of the men at the bar, a prisoner ; that Boucher slid from his horse, and joined his ft M, 1 81 own party, and immediately a firing commenced IVom tlie Hall-breeds, and by the second shot Mr. Semple fell, and subsequently nearly the whole party. Now how these cir- cumstances are to be at all varied by the name given to this unfortunate Gentleman, I dnnot for a moment conceive. Indeed I think it approaching very closely to what I have before remarked as one of the abuses of the humanity which led to assigning Counsel to prisoners. Mr. Sherwood. — ^There shall be nothing like petulance on my part, I assure your Lordship, and I hope there will be none on the part of the Crown Officers ; but, with great deference to the Court, I must be permitted to do away the smallest impression that can, by possibility, attach itself to the mind of even a single Gentleman of that respectable Jury, from the course which has been pursued on the part of the Crown. I know that with loyal subjects a degree of awe attaches itself to any thing approaching to contempt of, or opposition to, legitimate authority ; and if the Gentlemen of the Jury could once be made to believe that Robert Sem- ple was a Governor, appointed by the authority of the Prince Regent, like the illustrious Governor of the Canadas, or his distinguished relative. Sir Peregrine Maitland, the si^ tuation of the prisoners at the bar would indeed be critical. I must therefore shew the Jury, that he was no more a Go- vernor than he was a Turkish fiashaw — no more than he was an Emperor. Did you ever ask this Governor of yours, how he became so ? — you don't, I suppose, know whether he had a commission from His Majesty or the Prince Re- gent, in the same way that the Duke of Richmond and Sir Peregrine Maitland, who are Governors, have ? Heden. — 1 do not know how he was a Governor j I never asked him : it was not my place to do so. Mr. Sherwood. — You do not know whether the North- West Company acknowledged him as a Governor; whether they called him their Governor ? Attorney-General. — I really cannot see upon what ground it is, that the Learned Gentleman puts questions of this nature to the witness. If I had put the oflFence on a differ-- ent footing to what it is, by charging the prisoners with levying war against, and in that war killing the Governor of, the Colony, there would, perhaps, be some occasion for them ; but in this case of murder of an individual, i do not conceive to what object they are to tend. Mr. Slierwood, — ^Will the Crown admit that he was not a t '*'■-»-— - ;•■->■ '*«':«*Sl^ I ■ ' ii 82 Governor; that he had no autliority constituting him :i Go- vernor ? If the Attorney-General will admit that he was not a Governor, I have no desire to put a single question on the subject of his assumption of authority. Attorney -General. — I have nothing to do with what his rank was ; for it can be of no consequence what his rank or authority might really have been, or what he might have assumed. He was generally known in that country under the appellation of Governor Semple ; but I neither admit that he was not legally a Governor, nor do I assert that he was. I do not charge these men with the murder of Govemar Semple, but they are indicted, as principals in the second degree, in being present, aiding Cuthbert Grant to murder Robert Semple ; we say nothing about Governor Semple. Mr, Sherwood. — Very well j then good bye to the Gover- nor. Do you remember any conversation at the time of your going out with Mr. Semple ? Speak of Mr. Semple, because he is not to be Governor any more. Do you recol- lect his saying any thing about taking of pemican ? Heden. — I do not remember any conversation at the time of going out, except what I have mentioned about going to see what they wanted. I am sure that we did not go to take pemican, nor did I hear Mr. Semple say any thing about taking it from the North-West Company, or that he would have their lives. I know what pemican is. I have fre- quently eat it myself; it is food prepared for the support of the traders, and is carried frequently from one post to ano- ther, where it is wanted. I do not remember any other conversation but what I have told. The Half-breeds had passed our fort before we went out ; they did not interrupt us in going by. I can not say whether they would have come back to us, if we had not gone out to them. The rivers which form what are called the Forks of Red River, are the Red and the Asslniboin Rivers, and Fort Douglas is at the Forks. The Red River receives the Assiniboin River at the Forks, and they both fall into Lake Winnipic. (A map was here handed to vAtness, who said he did not understarul much about maps.) The Half-breeds were mounted on horseback. Fort Douglas was fortified. It had been forti* fied for fear of the North-West people and Half-breeds coming. I did not hear Governor Semple say that he would fire on the Half-breeds, nor did I hear Mr. Holte or any other person say they would. I read and write very MO t y .i V " m rer, Is is iver lap ind on Irti- leds he or lery little. I do not think I should know Mr. Holte's writing. (A Letter was here shetvUf but he said he could not say whether it was Mr. Holte's writing ornot.) Mr. Slierwood.-^Did you ever say to any body, no matter whom, " We have been disappointed, we deserved what we " got } we fired first, and if we had got the better, we *' should have served ther the same ;" or words to that eifect ? Now, recollect yourself. Did you ever tell any body so ? Heden. — No, I did not. I never said any thing like it. Mr, Sherwood, — And every thing you have sworn to to- day, is as true as this, is it? Heden. — Yes, it is all true. Mr. Sherwood. — I ask you, is it all as true as this, " that " you never said your party fired first ?" Heden..— I never did say so— I could not, because I knew the Half^m m . 85 Hcd€n.~-l understood the words he said, and I should have understood them by the signs he made. 1 do not know of any pemican being taken. 1 did not assist to take any ; there was a report of it having been taken from the North- West Company : this was about 1813 or 1814. DONALD M*COV, sworn. Examined by the Solicitgr-Gbneral. M^Coy. — I arrived in the Red River country in 1812, and 1 was there in 1816, in the month of June. I heard, a little before June 1816, of threats to destroy the Colony at Red River. I had, as long as I had been there, heard that its destruction was threatened, but I heard it then more particularly than before. I saw in that year, in the month of May, Cuthbert Grant, at River Qui Appelle, as I was stopped by him ; I do not know if Boucher was with them, but I saw him afterwards at Brandon-house. 1 was coming down ' the River Qui Appelle with provisions, and was stopped by Cuthbert Grant, and made prisoner by him and an armed party, and taken back to the North- West Company's fort at Qui Appelle. It was in May that same year, that this happened. Cuthbert Grant and the prisoner Paul Brown were among that party, but Boucher was not. There were about twenty-seven, or twenty-eight persons, but with the Bois-brules there were fifty or sixty. I saw Francois Deschamps, and he was there. Cuthbert Grant commanded the party who took me prisoner. Whilst at the fort at Qui Appelle, (where 1 was kept four days), I heard Deschamps say, they must go down and destroy the Colony at Red River. I saw the prisoner Boucher at Brandon-house, he said he was glad our people were taken at Qui Appelle j and when I answered that there were a good many more at the Settlement, he said they would go down and destroy it. This was the very end of May, or might perhaps be in June. We left the armed force which had taken me prisoner at the fort at Qui Appelle, and went on to Brandon-house. Boucher, one of the prisoners, was there. Hoole was not, neither W3s Grant. Very soon, I believe, only one night after, we continued our route to the Settlement. I heard no other than what I have told, but when we got to the Settlement, we heard the report that they expected to be attacked, and they were armed to protect themselves. We always kept a look-out at the fort. ->fl»^ ■M^ \ and on the 1 9th June, some one at the look-out gave notice that 3 party were coming down towards the Settlement. The Governor came out with a spy-glass, and after looking through it, he called to about twenty of his people to go with him, and see what they wanted. 1 was one that went out with Governor Semple. We were armed, and as we were going along, Mr. Holte's gun went off by accident, and the Governor scolded him for not taking better care. A short time after this, we were surrounded by this party, who were generally painted. I knew some of them ; we were close to them, or nearly so, but 1 do not know if Boucher was painted, or if Deschamps was there. They were strongly armed, having guns, bows and arrows, spears, and tomahawks. When they were surrounding us we stopped, for they came up very quick, being on horseback, and were going to fire. Mr. Semple ordered us to stop, and see what they would do. I saw a shot fired, but before that took place, Boucher came out from his party, and came over to ours, and had some conversation with the Governor, and I saw the Governor catch hold of the butt of his gun. I heard at the same time some words, but could not understand what they were. Boucher then sprang off his horse. Mr. Sherwood. — Will your Lordships allow me to ask you if you have taken that the witness saw Mr. Semple take hold of the butt of Boucher's gun, because 1 consider it very material ? Clii^' Justice. I have taken it. What did Boucher do when Mr. Semple took hold of the butt of his gun ? M^Coy. — He got oif his horse, and as soon as he was off, I heard a shot, and saw Mr. Holte die, and immediately after, another. 1 afterwards saw that most of my party were down. Governor Semple was killed directly after Mr. Holte, for two shots went oft' directly after one another, by one of which (the first) Mr. Holte fell, and by the other, Mr. Semple, who immediately called out to his people to do what they could to take care of themselves. 1 did fire my- self, but not before Mr. Holte and Governor Semple fell, nor did I hear, nor do I believe, that any of our party did. I do not know what they did after I saw most of our people down, as I endeavoured to make my escape. The next day I saw one of our party, whom 1 had heard call for mercy, with his head cut open. Some of this party were Indians, and some Half-breeds, and some Frenchmen. Cuthbert Grant was there, but 1 do not know that he was at the i ' i.v 87 head uf the party. The Half-breeds du not generally paint; it is not common for them to do so. There were only three or four of our party who made their escape. I got to Fort Douglas that night, and 1 tllept there ; the next day I saw Boucher come with the party to the fort. I knew Grant, Boucher, Fraser, and Paul, (the piisoner Brown), who were among them. I do not know if they were all there the day before. I, that day, heard Brown ask where Heden was, and his (Heden*s) wife said he was in the tent, and I heard Brown say, that he would kill him. I saw Governor Semple fall. 1 can not say if Cuthbert Grant fired at him,nor if the shot I saw him receive killed him, nor did I see him alive afterwards. He was wounded in the thigh and in the arm. 1 did not see him buried. A Juror.— Whs there any blood when Mr. Semple was wounded and fell ? M^Coy. — Yes, there was. CMef Justice.-— -Did you not say, that you went away directly you saw Mr. Semple full ? M^Coy. — When I made my escape I only saw four or five of our party alive. When we went out 1 heard Mr. Semple say nothing but that he would go and see what those people wanted, or what those fellows were doing. As we were going along, the women came running towards us. There were some of the settlers taken prisoners before the party's coming up, and I saw them, but 1 did not see them taken. The gun by which Mr. Holte was killed, was not fired near me, nor by any of our party, as i think; if it had been, I must have heard it nigher. My back was towards Mr. Holte at the time, and when, on hearing the report of the gun, I turned round, I saw him down, being wounded. I only saw one of our party fire, and he was with me ; it was on our retreat; a man on horseback was coming down upon us with a spear, and we fired. Cross-Examination^ conducted by Mr, Sherwood. M'Coy. — I did not see Boucher fire during the wliole affray, nor did I see Brown there. I do not know that Fort Gibraltar was taken from the North-West a little before the provisions were taken from us by them. I do not know of any other pemican being taken. I do not know of any thing taken from the North-West Company. I know Mr. Miles M'Donell ; he had command of us before Governor Semple. 1 know of a Produmution of Miles M'Donell. I y1 88 Jl read bat very little, not enough to understand the Proclu- mation, but I know there was one. After this Proclamation, 1 do not remember that two trains of pemican were taken, but I do know of some boat-loads being taken by our people from the North-West Company, but I do not know the quantity, but I believe two boat-loads. I do not know any thing of the great quantity of pemican taken by Mr. Spencer, amounting to five hundred bags. 1 do not know of any pemican being taken by the North-Wcst people, before this was taken from them. There were cannon at Fort Douglas, but 1 do not know that tliey were to prevent the North-West people going down. 1 heard no threats from Governor Semple that they should not pass, or that he would fire on them if they attempted to pass. The party had provisions and went with carts, but I do not know why. The North- West Company had been accustomed to send their provisions by watcr,and theycame from the RivcrQuiAppclIc toPortJige des Prairies by water this time. Portage des Prairies is a good day's march from Fort Douglas. At the time that Governor Semple and the rest of us went out, the other party were going towards the Settlement, they had passed the fort, but had not come towards it. I saw Mr. Semple seize the butt of Boucher's gun, but 1 did not hear whether he threatened him, or whether Boucher was in fear of his life, 1 did not hear what passed on either side. Mr. Sherwood. — Did you not observe what Boucher did — did he laugh, or did he cry, or what ? M*Coy. — He did not laugh certainly. I did not hear what passed. I fired myself, as I was running off, at a man who was pursuing me. At the time I heard our people crying for mercy, it was before I went away, both parties were then close together, and some of them were running about. John Greer it was that I heard call. I heard Governor Semple order Mr. Bourke to go for a cannon. I did not see that the North-West had any, but the settlers we met said they had, and then Governor Semple sent for one. I did not see that Mr. Semple had a gun or a rifle. Mr. Sherwood. — You have been talking about a Settle- ment, will you now tell us what sort of Settlement this was? and what grew there ? M^Coy. — There was a good many people there, perhaps forty or fifty, who lived near the fort. They had raised grain. Mr. Sherwood. — Grain 1 what sort of grain ever was raised? . i . . ; ,. / v i ua-: M*Coiiy.— Wheat and barley. 89 !? • Mr. S/tem'ood.— Do you mean to swear that they ripened ? M*Coi/.— Yes, il had ripened the year before, and was gathered, and potatoes in great plenty ; wheat had ripened, and was sown again this year. Mr. Holte's gun went off quite by accident, and Mr. Semple was quite angry with him for not giving better care to his gun. Re- Examination by the Attornby-Gbnbral. You have said you know, of pemiuan being taken from the North-West Company by the Hudson's Bay people ; did you ever know of tlieir people taking away the lives of any of the North-West Company, or do you know of any lives being lost in any other affray by the North-West Company ? M*Coy. — No, I do not. I do not think there have been any. JOHN P. BOURKEy sworn, * • i^nd co^amincd 61/ f/te Solicitor-General. ; - Mr, Bourke. — About the month of June, 1816, I was at Red River ; there was a report current at that time of an attack being expected from the North-West people. 1 heard that they were assembling at a North-West post, but I know nothing myself of it being expected particularly from the people of Alexander M'Donell, but ] know that it was a general report that the Settlement was to be at> tacked, and in consequence of this expectation, sentries were kept constantly at Fort Douglas. I remember the 19th June in that year ; about five o'clock in the afternoon of that day, notice was given by the man upon the look-out station, that the Half-breeds were coming down, and were going towards the Settlement. Mr. Semple took his spy- glass and went to the look-out station. I accompanied him, and after looking some time, he told about twenty men to follow him, and see what these people wanted, and a number accordingly went out, perhaps about twenty, or rather more ; after going a little way, we met some women coming from the Settlement, running, and crying that the Half-breeds were coming down upon them with carts and cannon. Upon this Mr. Semple sent back to the fort for a small piece of ordnance which was there; it was me that he sent ; he desired me to go back and get the cannon, and tell Mr. M'Donell to send as many men as he could spare. I ac- cordingly went back and got the cunaon, but Mr. M'Donell :\ \ t * ! I I: I ; .< I 90 could only spnre one man ; as I wai returning, f hmw (he Hnlf-brecds coming un towards the Governor's party in a straight line. Presently after they made a liolf-circle, and nearly surrounded them ; 1 saw the flash of a gun, and immediately after another, and shortly after 1 saw a general firing along the whole line of horsemen. The firing ceasing some time after, and seeing none of our party, I was afraid that I might be intercepted with the cannon. 1 therefore returned with it, but did not go back to the fort myself, as after we had gone a little way, I determined to go and see what had become of Governor Semple, being joined at this time by some men who had come after me from the fort. I therefore sent the man who had come with the cannon, back with it, through the buslies to the fort, and we went un to where we expected to find Governor Semple ; when we had nearly got to where we supposed he might be, we saw some men in the bushes, and also farther on some men taking care of the people's horses, who were now dismounted and spread over the ground, but I did not see any of our people. I at first thought that these men in the bushes were some of our people, who had made their escape. They called out to us, saying they wanted us, and called to me that the Governor was there, and wanted me. I stood a little time, not knowing whether to go on or not, when they called out again, " Come on, come on, here is your Go- " vernor, and he wants you, won't you come and obey him ?'* They were concealed in the bushes and brushwood, but I saw presently afterwards that they were Half-breeds, and I perceived one of them in a sort of shirt, with a large bunch of feathers in his hat, resting his gun upon a stump and levelling at me. I and those that were with me, imme- diately turned back, and as we were making our escape, we were fired at, and I was wounded, and one of the men who was with me was killed by another shot. I do not know any thing about who fired first at the Plains, but I always heard it was the Half-breeds, and that Mr. Holte was killed by it. I never saw Mr. Semple afterwards. I saw a num- ber of bodies from the window of my room, but being wounded, I could not go about. I saw both the pri- soners afterwards on the next day at the fort, but I did not speak to them. I understood that they intended to kill two or three more, and I expected I was to be one. The fort belonging to the North- West, at which I spoke of the people assembling to attack the Settlement, was their fort at River Qui Appclb, and Mr. Alexander M'DonoU was in 91 charge there. I saw Cuthbert Grant on the day after the outrage at the fort. I could not distinguish him on the 19th, but 1 always heard that he had the command on that day. 1 heard it generally said so. CrosS'Exauunation, conducted by Mr. Shekwood. Mr. Bour/f«.— Ever ilncc I came to the country in, the Indian Territory, i have been a clerk, partly in the service of the Hudson's Bay (Company, and afterwards in the service of the Earl of Selkirk, at the Settlement at Hed Hiver. I have heard it reported, and I can not say I have any doubt, though 1 do not myself know it, that Earl Selkirk is inter- ested in the Hudson's Buy Company. I have heard that he was a partner, and I do not myself know that he was not, any more than that he was. 1 always observed the orders of Mr. Semple, and I suppose his authority came from the Hudson's Buy Company. 1 know Mr. Miles M'Donell; he was at the Colony before Mr. Semple, and I was there before he was. I have seen Mr. M*Donell write, and should know his hand-writing if I saw it. (The ProclamO' lion was then produced and sheivn to witnessy wJio said), I believe the signature to this paper to be Mr. Miles M^Donell's hand>writing ; I have no doubt of it at all. Mr. Sherwood moved that the Proclamation be now read. Attorney -General. — I wish to know what possible effect any Proclamation of Mr. M'Donell's is to have upon this charge, or upon what principle it is that this paper is to be introduced as evidence upon a charge of murder against these prisoners. It does appear to me a most extraordinary course that the Gentleman is taking. Chief Justice. — The object is evident. This is the Pro- clamation we have heard so much about, authorizing the detention of provisions, if attempted to be sent out of that part of the country where this Colony was, and which, as they say, rendered it necessary, when they sent provisions, that they should be accompanied by a guard to protect them. Mr. Sherwood. — That is precisely our object, and one which we consider ourselves perfectly entitled to attain in this way. We propose to put this Proclamation in as evi- dence, and then shew, that in consequence of it, all these difficulties have occurred, and by which we mean to justify our conduct. Chief Justice. — I fear this, under the ordinary course of fi ,] 92 .' i ff< ).: 'J. criminal justice, would do you a great deal of harm. I do not know what may be its effect here. You of course know your own defence, and it perhaps may not have that effect in this case, but in ordinary cases, it certainly would tend to prove the malus animuSf and to account for it. Relative to the ri^ht o! putting the question, and having the Procla- mation read, I can not but say that I consider, after the questions proposed by Mr. Attorney-General, as to what occurred after the murder, 1 do not think you ought to be restricted. 1 certainly consider an investigation into events that occurred even one day after the murder, as more out of the course, than the putting in of this Proclamation. In the Defence, an unusual course has been taken, and from the necessity of the case, allowed, and they say that a part of this case that they intend to make out as exculpatory of their conduct, is this Proclamation, because they allege that the grievances of which they complain, were com- mitted under the authority of this paper ; a paper issued, as they say, by a person having no authority to issue it, and placing them under circumstances, that, had they not resisted it, they must have suffered very materially in their interests. I do not see but it must be read, though, as 1 said before, it is for the prisoners' Counsel to consider whe- ther it may not do harm. Mr. Sherwood. — ^That we will risk. We wish the Procla- mation of this self-created Governor to be read j this issuer of proclamations might as legally have issued a Proclama- tion, forbidding the people of Yonge-street to come to York market. We wish the Proclamation to be read, whatever may be the effect. jUtorney-General.'^l certainly object to any Proclama- tion of Mr. Miles M'Donell's being read. 1 feel it my duty, solemnly to protest against it being pdmittcd as evi- dence, as I do against the course which the Gentleman ap- pears to have marked out for conducting the Defence. 1 have no wish to exclude any thing that, by possibility, can be beneficial to the prisoners, and that can consistently be admitted ; but it can not be allowed, that a sort of arbi- tration, or balance of crimes, shall be made. This mode of justifying one crime by another, (admitting for a moment that unjustifiable acts have been committed by the servants of the Hudson's Bay Company), can not, I maintain, be allowed to be produced as any defence to the charge which we bring against the prisoners, of aiding and abetting in mm 9S •-T the murder of Mr. Semple. It is absolutely necessary that, to put a stop to this most irregular course, a beginning should be made, and I therefore, on the grounds I have mentioned, object to any paper from the pen of Mr. Miles M'Donell being read. Mr. Sherwood, — ^The case, my Lords, at present before the Court, I again remark, is sui generis, and can not there- fore be reduced to the ordinary rules that govern every day trials ; but Mr. Attorney-General totally misconceives our Defence, when he alleges that we propose to justify one crime by another; far, very far, is our course from an attempt of that kind. We propose, not to produce crime to justify crime, for we say the crime is all on one side, and that on the side of the prosecution. Our crime consists in this, that we did not stand still and be beat. We say that, if by crime they have provoked blood to be shed, on their heads be it. We say that on the 19th June, we have com- mitted no crime ; because we were quietly pursuing, under great inconveniences imposed by them, our lawful trade, and they came out to us and attacked us. We have already, by their own witnesses, proved an assault upon Boucher, and before we have done, we shall prove a great deal more. The circumstances of that country are not like those of this civilized province, where recourse can be had to the pro- tection of the law ; there a man is compelled to be his own protector. It would be an absurdity to say, that the pri- soners might not prove, (Brown for Instance, who is a Half- breed), that a prohibition of trade was a prohibition of right. I do not wonder at the prosecutors not wishing this Pro- clamation to be read, because it exhibits at once the leading cause on their side, of all the outrage and rapine that has occurred since 1814. I am not only to be permitted to prove acts of aggression, but I may go farther, and shew the spring of them. At present I am contented to rest at the date of the issuing of this Proclamation, and from that time I shall follow it up, by act of aggression upon ag- gression, committed upon us by virtue of it, or of the prin- ciples contained in it, and in so doing, instead of justifying crime by crime, as Mr. Attorney- General represented he understood I intended to do, I throw that upon the opposite party, whilst I am justifying our innocence by the crimes of our adversaries, which makes a very material diiference. Chief Justice. — As I before mentioned, we had, as it was not impossible but questions arising in these trials might be ■1 ^i. t| ^«¥Vt'^** t»-« >*■ 'Oi 94 m be brought before us in the King's Bench, agreed to be to- gether when any new point was started for discussion. This is one ; and my Brethren on the Bench arc against me in opinion, and think the Proclamation otfered by the Counsel for the prisoners cannot be read. I have thought that, in the process of this trial, every thing that could shew the malice existing from the one party to the other, might be shewn. Their endeavouring to starve each other ; the en- deavouring to furnish provisions in opposition to this Pro- clamation, to the engages ; in fact, every thing on both sides that could throw any light on this melancholy transac- tion. I did understand, and do now, that the Defence of these men is, that, at great expence, they had sent in carts a quan- tity of provisions, necessary for the supply of the traders who were expected ; that hitherto they had been accustom- ed to send them by water, but that, the fort at the Forks being fortified to prevent their passing, they had been com- pelled to adopt this expedient; that, in the prosecution of it, they had no intention whatever to interfere with the Hudson's Bay people, but that they were attacked by them. In corroboration of this statement, they wish to prove the Proclamation, forbidding provisions to be taken to where they had occasion to send them ; and I had thought my Learned Brethren concurred with me, that under the course this trial had been allowed to take, it was con- sistent and right to admit the Proclamation ; but it appears I misunderstood them ; it therefore cannot be read. Mr, Justice Campbell. — When our Learned Brother, the Chief Justice, declared in open Court, that, according to our view of the subject, the Defendants might go back to any time, to prove an exasperated state of mind, I was very desirous that it should be distinctly understood, that my opi- nion went no farther than this, that you could go back no farther than you could prove a continuance of the excite- ment ; and that, not only must it be proved to have conti- nued without cessation, but that there had been no time for reflection, and cooling of the passion ; it was upon that ground, and that only, that I consented to admit you to go the length you have gone. It was on this ground, that you would not only prove that the irritation had existed from any period to which you went back, but that there had been no time for reflection to take place, and for the irritation to subside, owing to the continued or uninterrupted nature of the aggressions. I— 95 to of Mr. Livius Sherwood.'— Thai, my Lords, is not exactly our Defence—— Mr. Justice Campbell. — It is the only defence whicn can be offered for murder. Mr. Livius Sherwood. — With great submission, my Lord, I beg leave to contend, that in arson j murder, or robbery, or any felony, it is open to the accused to shew whatever he can in the conduct of those who accuse him, that will, in any degree, account for his own, or reduce the enormity of the offence of which he is accused. So 1 say, in this case, we have a right to take any date we think proper, and follow it up wherever we meet any of the opposite party, and shew, from the peculiar circumstances of the case, that felony and murder was not committed by us. This doctrine 1 am pre- pared to support by authority. Mr. Justice Campbell. — ^You may trace back the irritation at this moment to any particular period, but you cannot put in this Proclamation, and say it is a justification, or that it will exculpate you, because you were irritated at acts which you say had been done under it, whether they were right or wrong, is now of no consequence Mr. Livius Sherwood. — ^That, my Lord, is a part of the res gesta of our Defence, and I hope to satisfy your Lord, ship that it is a legal ground. Our Defence is, that at this very moment, from a concatenation of circumstances, a state of exasperation and irritation existed, which was ex- cited by the Hudson's Bay people's illegal conduct, mani- festing itself in various ways, and commencing with this Proclamation. We go no farther back at the present mo- ment, because we consider this sufficiently remote to meet Mr. Attorney-General's case, as at present it stands ; if he goes to more remote periods, so must we. We propose to put in this Proclamation, forbidding the exportation of provi- sions ; we shall then shew that our pemican was taken from us in virtue of it j that we were threatened with our lives if this Proclamation was disobeyed. In this way we purpose shewing a train of circumstances down to this very day, which will lead us to the conclusion which we are aiming to establish, and we cannot arrive at it, unless we are permitted to shew from the beginning to the end. This circumstan- tial sort of proof, if detached, is of no weight — it would amount to nothing ; but taken together as a whole, and it is stronger even than positive testimony, for, as is well laid down in an authority to which we daily refer, positive testi- mony may err, circumstantial cannot. It will appear then. Ti '*sti^ I V 96 that a state of irritation existed, from tlie imminent danger we were at all times exposed to of losing, not only our pro- perty, but our lives, by disobedience of this Proclamation ; which we humbly contend we are entitled to make evidence on the grounds which have been submitted. Mr, Justice Campbell. — If there is no discontinuance of this irritation, and that the outrages to which you refer were so continued that there was no time for this exasperation to cool or subside, then you may perhaps be permitted to have it read. Mr, Sherwood.— We shall, if permitted to read this Pro- clamation, go on to shew that, without this food called pemican, trade can not, in that country, be carried on. We should then shew that it had before, when passing in boats, been most outrageously taken from us ; that, at the moment we took the precaution of sending it down under a guard competent to protect it, it was actually required to meet persons who were expected, and who, if they did not receive it, must starve j we shall prove, as indeed we have already done by their own witnesses, that we had no inten- tion of interfering with these people at all, that our sole object was safely to carry our provisions by the route that was left us ; we shall most fully prove that they came out, not merely to see what we wanted, but to attack us, but that they this time had been deceived as to the number of persons, and I am much mistaken if we do not also clearly establish that they actually fired first. All these circum- stances we contend we have a legal right to shew. We wish to commence with the Proclamation. Attorney-General. — It is of no real consequence that, in point of fact, a systematic plan of opposition existed between these two trading Companies, and that in our own imagina- tion, very illegal acts have been committed on both sides; the only point which can, in my humble judgment, bear on this case is, was a provocation given to them in the lawful pursuit of their trade that justified these Half-breeds in resorting to arms ? As to my having examined the witness as to what took place the day after this murder charged in the Indict- ment, I went no farther than to shew that the object we say they had in view when they left Qui Appelle was actually carried into execution. We say that it was not to convey provisions, but to destroy this Settlement, that this party came down in hostile array, and we have shewn that they did destroy it. I can not therefore see that my proving, by a witness, that which was actually necessary lo substantiate. ■| S> T^ l ' l < iTTlf* -J^ . * M< i ■ ■ *^ m ite. the assertion that we make of the real intention of these persons, can open the door to them to go years back into a history of, perhaps, mutual aggressions, and offer them as a defence on a speciBc charge of murder. If the Gentleman can prove their only object to have been to take provisions* let him do so; but it can not be necessary, to establish that point, that he should prove a Proclamation years before, by a person whose name does not even appear in the present transaction. It is however completely with the Court. Mr. Sherwood. — I must prove my case, without any direction from Mr. Attorney-General, in my own way, and [ shall prove it, link by link, it is a chain of testimony that I have to produce, and I shall, in my cross-examination of his witnesses, attempt to prove as many links as 1 can, and the remainder by my OArn. Having done so, it will be for your Lordships, and not for the prosecutor, to tell the Jury what I have not proved. Solicitor-General. — I do not imagine that your Lordships intend that an animosity kept up for months or years, (ac- cording to what the Learned Gentleman proposes to him- self), should be considered as that state of exasperation which had not time to cool. I conceive the Learned Gentleman has misapprehended what your Lordships meant. ChieJ Justice. — In the first latitude given to this Defence, the Court did it because, from the circumstances which had been shewn, it thought it absolutely necessary to the sub- stantial justice of this case (so very peculiar in its nature), that evidence should be admitted to shew an exasperated state of feeling, and that under it, excesses had been com- mitted. This was allowed, not with any view of admitting these excesses to be pleaded as a justification for a constant irritation of one, two, or three months, or weeks, or even days, or hours, but that these repeated aggressions created an irritation in their minds, which raised such a suspicion of injury being done them, whenever they met the opposite party, as to justify, in the unhappy and peculiar state of that country, their resorting to arms for self-protection, even be- fore an actual attack had been made upon them. My idea was, that the prisoners might be permitted to shew that such was the state of that country, from the hostility of these two great Companies, that it was necessary to go armed ; and if, in addition, they could prove that a constant irritation was kept up in their minds from any time down to this melancholy 19th June, not only without interruption, but that the causes of this irritation were in such constant H m it I'M I. t [ I I I ii ■ i trirkt i^ i 98 succession as not to allow the passions to cool, and reason to resume its sway, that it was no matter where they began, and therefore, when their Counsel said he would begin with this Proclamation, (about which we have heard so much, that we all know what it amounts to), I thought he might be permitted to do so. I merely cautioned him that, in ordinary cases, such a course would do harm, and might do in this, as it must depend entirely upon what the Jury think of these provocations. These were the reasons which in- duced me to give the latitude in the first instance, and, having permitted an enquiry to be gone into, of what oc- curred after the murder charged in the Indictment, I thought it but right that the prisoners should be allowed to shew what they could, to account for their conduct. My Learned Brethren, under this explanation, that the irritation must be in such immediate succession that there was no time for passion to subside, do not object to the Proclamation being read. The following Proclamation was then put in and read. PROCLAMATION. N>/ • *<-i Whereas the Governor and Company of Hudson's Bay, have ceded to the Right Honourable Thomas Earl of Selkirk, his heirs and successors, for ever, all that tract of land or territory, bounded by a line running as follows, viz : — Beginning on the western shore of the Lake Winnipic, at a point in fifty-two dc' grees and thirty minutes north latitude ; and thence running due west to the Lake Winipigashish, otherwise called Little Winni- pic ; then in a southerly direction through the said lake, so as to strike its western shore in latitude fifty-two degrees ; then due west to the place where the parallel of fifty-two degrees north latitude, intersects the western branch of "Red River, otherwise called Assiniboin River ; then due south from that point of inter- section to the height of land which separates the waters running into Hudson's Bay from those of the Mississouri and Mississippi Rivers ; then in an easterly direction along the height of land to the source of (he River Winnipic, (meaningby such last-named river the principal branch of the waters which unite in the Lake Saginagas,) thence along the main stre?.m of those waters and the middle of the several lakes through which they pass, to the mouth of the Winnipic River ; and thence in a northerly direc- tion through the middle of the Lake Winnipic, to the place of beginning. Which Territory is called Ossiniboia, and of which I, the undersigned, have been duly appointed Governor. I. p.c^iifc**"^ 99 ing And whereas, the weltare of the families, at present form Settlements on the Red River, within the said Territory, with those on the way to it, passing the winter at York and Churchill Forts in Hudson's Bay ; as also those who are expected to arrive next autumn ; renders it a necessary and indispensable part of my duty to provide for their support ; in the yet uncultivated state of the country, the ordinary resources derived from the buffalo and other wild animals hunted within the Territory, are uot deemed more than adequate for the requisite supply. Where- fore, it is hereby ordered, that no persons trading in furs or provi- sions within the Territory, for the Honourable Hudson's Bay Com- pany or the North-West Company, or any individual, or un- connected traders or persons whatever, shall take out any pro- visions, either of flesh, tisb, grain, or vegetable, procured or raised within the said Territory, by water or land carriage, for one twelvemonth from the date hereof; save and except what may be judged necessary for the trading parties at this present time within the Territory, to carry them to their respective des- tinations ; and who may, on due application to me, obtain a license for the same. The provisions procured and raised as above shall be taken for the use of the Colony ; and that no loss may accrue to the parties concerned, they will be paid for by British bills at the customary rates. And be it hereby further made known, that whosoever shall be detected in attempting to convey out, or shall aid and assist in carrying out, or attempt- ing to carry out, any provisions prohibited as above, either by water or land, shall be taken into custody, and prosecuted as the laws in such cases direct ; and the provisions so taken, as well as any goods and chattels, of what nature soever, which may be taken along with them, and also the craft, carriages and cattle instrumental in conveying away the same to any part, but to the Settlement on Red River, shall be forfeited. Given under my hand at Fort Daer, (Pembina,) the 8th day of January, 1814. (Signed) MILES M'DONELL, Governor. By order of the Governor, (Signed) John Spencer, Secretary. Mr. Sherwood. — Now, 1 suppose, it will be admitted by the Crown, tliough just now they did not choose to assent or deny the validity of Mr. Semple's authority as Governor, that Air. Miles M'Donell, who was Mr. Semple's prede- cessor, and had just the same powers, had not any authority to lay an embargo, as he does in this Proclamation. Chiqf Justice. — It is of no consequence whether he had authority or not, to this trial for murder. Mr. Sherwood. — If, my Lord, any weight can be givt'n h2 ^..I'i 100 [ lll 'y., 'If I to the opinion of Counsel, I beg leave to say, that is of great importance. This is a Proclamation by the predecessor of Mr. Semple, Mr. Governor M'Donell. CM^ Justice, — We know it is, but we are not trying Mr. M'Donell, and it therefore has nothing to do with the case. You have put in a piece of evidence ; now make what you can of it, to exculpate the prisoners from the charge of murder. If we were trying Mr. M'Donell, it might be a question, whether he had any authority, or how far it extended ; but it can not in this case. Mr. Sherwood. — We had no idea of trying Mr. M'Donell, and yet imagined we might, if the Crown did not admit it, prove that he had no authority to lay an embargo. I will, however, go on with the cross-ex- amination. Do you know of any provisions being seized, in consequence of this Proclamation, by the Hudson's Bay people from the North-West Company, and by whose au- thority, or who gave the orders ? Mr, Bourke. — I do not know of any provisions being seized, but I have heard a report that there were some taken from the North-West Company by some of our people, but I do not know by whose orders, or that it was under the Proclamation of Mr. M'Donell. I know nothing at all of two bateaux-loads of pemican being taken, nor of five hundred bags of pemican, though I have heard it re- ported that there were, but I know nothing of it, of my own knowledge. Mr, Sherwood,'^Are you acquainted with the taking of Fort Gibraltar ? Mr. Bourke. — Unless I am obliged to answer that ques- tion, I shall not. Mr, Sherwood. — Why not. Sir ? was you at the taking it ? Was you one of the party in that daring outrage ? Mr. Bourke. — ^That is no matter j unless 1 am ordered by the Court to answer that question, I shall not. (The Court informed Mr. Bourke, that he need not an- swer any question which might involve him in a criminal prosecution, but all other questions he must answer.) Mr. Sherwood. — Well, Sir, I do not ask you, if you helped to raze Fort Gibraltar j but did you hear any thing about its being razed by any persons ? Mr. Bonrke.'—l decline answering that question. Mr. Sherwood,— We\l, Sir, you shall answer it then in another way. Did you know if Michael Heden was at the taking of that fort ? That is a question you must answer. H rr::bdb:'.:xM«s»4it6^^n«<) it —rt' a%.U««n>-*«||^,'V* * -***^' ^ <>■'»•■- ■ ^ ■'■*^ ^^'■^■%*.*. ^x'saaaHEa***'''' 101 Mr. Bourke.—l believe Michael Hcdcu was at the taking of Fort Gibraltar. I saw a raft of materials come to Fort Douglas, some time afterwards, but 1 do not know that they were the materials of Fort Gibraltar. I have heard, and I believe, they were the materials of Fort Gibraltar. The Red River usually opens, or breaks up, about April ; and it was about the latter end of May thai I saw those materials, which I was informed, and believe, were those of Fort Gibraltar, but I do not know that they were. It being the latter end of May, it could not therefore be long before the battle. 1 saw Governor Semple go out to protect the set- tlers. I went out with him, and had a gun and some balls loose, but I had no cartridges. Some of the guns had bayonets to them ; we did not go out to fight this party, though some of tiie guns had bayonets. Mr. Sherwood. — What could you want with bayonets to your guns, if you did not go to fight ? Do you use bayonets in hunting ? Is it usual to shoot buffalo with bayonets ? How came you to take bayonets, if not to fight ? Mr, Bourke. — 1 do not know how it was, but we did not go out to fight. We went out to protect the settlers, and get them to the fort. If they had been in the fort, we should not have gone out at all. We had long expected the attack. Our apprehensions arose from information given us, and from repeated threats ; also from our having been fired on in 1815, when they drove us away. Mr. Sherwood. — Do you mean to say now, that your party did not fire first ? i know you have said it before, but I ask you again ? Mr. Bourke. — I do mean to say noiy, as I always have said, we did not fire first. When we met the settlers, who were running to the fort, and said they had carts and can- non, Mr. Semple sent me back to the fort for a small piece of ordnance which was there. It was from the settlers, and not from the sentinel, that we received information they were coming with cannon. Mr. Sherwood. — You have spoken of Mr. Holtc, Sir ; pray^ what sort of man was he ? — a mild man, not given to passion ? Mr. Bourke. — I do not know that I have said any thing about him during my examination. I do not recollect that J have. Mr. Sherwood. — Well, Sir, if you do not decline, (as you did about Fort Gibraltar,) afiswcring my question, we loill I«S '->. •■p' [ ' l\ m u^ m 102 speak of him. What countryman, in the first place, was Mr. Holte ? Mr. Bourke.~-Mr. Holte was a Norwegian, or a Swede, I believe. I never heard him say that he would destroy the North-West Company. (A Letter was produced, tvhich the toitness slightly examined.) I can not say whether this Letter is in his hand-writing or not. Mr. Sherwood, — You had better, Sir, examine it more closely ; perhaps, by its contents, you recollect the writing, ril hand it you again to look at. Mr. Bourke. — 1 do not wish to see it. I do not know, from looking at it just now, whether it is his hand-writing or not. The Half-breeds and North-West people drove away the settlers the day after, when they had them com- pletely in their power. 1 heard that if Allen M'Donald had come, there would lu;ve been some killed, but none were killed, though wholly in the power of the Half-breed party, after the 19th June. ; . , -( . > Re-examined by the Attorney-General. Attorney -General. — Were your party on hor. i.back ? Mr. Bourke. — I was the only person belongmg to our party who was on horseback at all, during the whole mas- sacre, and I sent my horse back, when i went on to look for Governor Semple. Attorney-General. — Their party, then, being on horse- back, and you on foot, could, I imagine, have avoided you, had they been so minded ? Mr. Bourke. — Certainly, I should think they, being on horseback, might have avoided us 1^ ihey had wished. Attorney-General. — Did they avoid you, or endeavour to do so ? Mr. Bourke.— No; they came riding up to meet usj they gallopped up to us. Mr. Sherwood. — Yes ; they might have avoided you, by leaving their carts with the provisions, and gallopping away ? Mr. JSoMjfee.— They need not have left their carts j they might have taken them with them. Mr. Sherwood. — Is it usual in that country to gallop loaded waggons through woods ? I fancy not. Mr. Bourke. — There are no woods there to gallop through, it is an open plain for miles ; and it is not likely we should have followed a party so strong as they were. >• } '•v.. '.-Ssge---"" 103 HUGH M*LEANy sworn. Examined by the Attornby-Gknkm(al. M*Lean. — In June, 1816, I was at Fort Douglas ; there were reports which led us to expect we should be attacked. The reports were, that the North-West people were coming to strike the Colony and fort. This report came from Qui Appelle, by those who had been taken there with the pe- mican. M'Coy was one that came from there, and among them they brought the reports. On the 19th June, 1816, 1 was at a short distance from the fort, and I saw a great number of persons coming down on horseback. They had not passed the fort when I saw them first, but were about opposite to it, at a distance of perhaps a mile and a half ; there appeared to be about fifty or sixty of them, and they had two or three carts with them, and were going towards Lord Selkirk's houses. They went at about a small trot, and were coming at that pace towards the woods which are between tlie fort and the Settlement. I then went to the fort, and Governor Semple, with the party who went with him, were out before 1 came. I saw them going along, but I did not join them ; I went on to the fort. I had been about a quarter of an hour at the fort, when Mr. Bourke, who was one of the party who went with Governor Semple, came for a piece of cannon, and 1 went to drive the cart with the cannon. We went on for about a mile, (in answer to a question from the AU&iney-General, as to where Govefisr Semple was at this time, by which the narrative of witness was broken in upon, he said, that he was on before), and at about half a mile farther on, we saw them; they were mixed together, so that we could not distinguish one from another. Mr. Bourke observing this, sent me back with the cannon to the fort, which I reached with it safe. I saw Mr. Bourke afterwards, for after leaving the cannon I was returning to the same place, and then I saw him lying in a bush of wood wounded. Some men had advised him to go back, calling to him that the Governor wanted him, and then fired upon him. I then returned, and did not go any farther, as I found Governor Semple and others were dead. The Half-breeds were close to us at this time, but I did not know Grant or any of them. When I first went to the fort, after seeing the men on horseback, I met Mr. Semple coming out with the party that went with him, but 1 did not speak to them. The Frog Plains are about t^ree miles l-W i] i 104 from Fort Douglas. I do not know if Mr. Srmple or hi:* ()arty could huve overtaken them, they were on a slow trot, )ut goin^ faster certainly than people walk. Next day a large party of them came to the fort, they were armed, and about eighteen in number, and Grant was amongst them. 1 knew it to be Cuthbert Grant ; I did not hear him say any thing about what took place the day before. 1 heard one Vickcrs suy they fired first. I saw the carts come with nine dead bodies, nnd amongst them was the body of Governor Semple ; one of his arms and thighs were broken, and a musKet-ball had gone in at his throat, and out of his head. The first time I saw Cuthbert Grant after the 19th June, 1 did not say any thing to him about the affair of that day. I had no conversation with him at all. 1 saw Boucher at the fort ; he appeared to act under Grant's orders. As I was going along with the cart, I met some settlers coming to the fort, they appeared in a great fright, and were crying. Cross- Examination f conducted by Mr. Sherwood. M'Lean.'—l did not see Brown and Boucher the dqy after the battle. I do not know what was jn the carts that the tJulf-breed party had with them } I do not know whether it was pemican. Mr. M'Donell ordered me |to go with Mr. Bourke with the cannon which was mounted, hut we did not fire it ; we had no orders to fire it, nor no ammunition. The Half-breeds took away some of the settlers' goods, but I did not hear, though tliey were wholly in their power, that any were killed after the 19th, nor do I think any were killed. They were all sent away in a day or two afterwards. PA TRICK CORCORAN, sworn» Examined by the Solicitor-General. Corcoran. — In the spring of 1816, 1 was at Fort Douglas, nnd about the month of April, I was sent to Qui Appelle River. I went there with a party, and on our return, we were attacked and taken back to the North-West Fort at Qui Appelle. I do not know if Boucher was there, but Cuthbert Grant, I think, was. It was a general talk at the fort, that they would go down and take Fort Douglas, and break up the Settlement. There were not many Indians, but a good many Half-breeds, and they talked generally of the intended attack ; some whose names I do not recollect, told me of it particularly, and when i returned to Fort 105 M>^hs, I told it to our people. Peter Pangmnn, alhs Soslonnois, was there; he is a Half-hreed. Cuthbert •Cjfunt was there, for 1 heard him say, that he and others would come down and pay a visit to Mr. Robertson, and he should see what they could do. I understood by their coming to visit Mr. Robertson, (and they did not scruple to say), that it was to attack him— I was there, (at Fort Douglas), on the 10th June. It had been, and was, a common report, that we were to be attacked about that time. I was not in the battlcj I was in the fort. I have nothing particular to say about what took place on the 19th ,' une. Towards evening, I saw Mr. Scmpic and some of his people coming out of the fort as I was going in, but I did not see the Half-breeds till next day. 1 saw some of the women from the Settlement come crying to the fort, saying the Half-breeds were come. On the next day I saw a number of Half-breeds enter the fort, and I believe that both the prisoners were amongst them, but I had no con- versation with them, nor did I hear what passed between them and others of our people. I saw Governor Semple next day dead; at the time I saw his corpse, Cuthbert Grant was there. Cross-Examinatiorif conducted by Mr, Sherwood. Corcoran. — All I know about the battle, I have told. It was not two months before, that I was at Qui Appelle; it was in May that I was there. The fort on River Qui Ap- pelle is about four hundred miles from Fort Douglas . I am a servant to the Hudson's Bay Company, and am now in my seventh year. I was not at Fort Gibraltar when it was taken, but I know that it was taken. I saw the materials of it at our fort ; they were rafted down to it. Mr. Sherwood. — When Cuthbert Grant said at Qui Ap- pelle, that he was going, or would go, and visit Mr. Ro- bertson, did he not say what he was going for, that they were going to try and get their fort ? Corcoran. — I did not hear him say what he was going for. Mr. Sherwood. — Did you not understand at the fort at Qui Appelle, that it was for that purpose they were going to visit Mr. Robertson, though Grant did not in your hear- ing say so ? Corcoran. — I did not hear Grant say more than that he would visit Mr. Robertson j and some of the Half- Breeds I II 106 told me that they were going down to destroy the Settlement ; indeed that was the general talk. Mr. Sherwood.-^ThAt you told us before, but I want you now to answer my questions. You have told your own story to the Gentleman who examined you just now, and you answered all his questions very readily; now, though Huoe may not be so pleasant, yet you must answer them, and we want nothing else from you. Now I ask you ag^n, when Grant spoke of going to visit Mr. Robertson, though he did not in your hearing say that it was about Fort Gibraltar that he was going, had you not good reason to believe that he meant he was going about that ? Now, answer that question, just you had, or you had not, yes, or no? Corcoran.'^When Grant said that he was going from River Qui AppeUe to visit Mr. Robertson, I suppose he had some allusion to Fort Gibraltar. Mr. Sherwood, — Very well, why could you not have said so at first; you must answer my questions, however unwill- ing you may be. Corcoran. — I am not unwilling at all, I only want to speak the truth, and I can not tell what he meant. It was the common talk that Fort Douglas was to be taken, and the Settlement broke up, but I don't know why. Mr. Sherwood. — But you know that Fort Gibraltar was taken, and razed to the ground by orders of your Governor, as you call him, by a party under the command of this Mr. Robertson ? iCorcoran.—'NOf I do not, I did not see it taken, I heard tliat it was taken, but I do not know by whose orders. Mr. Sherwood. — Do you not know that Mr. Seniple sent Mr. Robertson to take Fort Gibraltar, and that Mr. Ro- bertson went and took it ? Corcoran. — I do not. I was not there, and do not know that Mr. Robertson went and took it, nor do I know any thing about any orders being given by any body to take it. I only heard that it was taken, and I saw some materials at our fort, which they said were those of Fort Gibraltar. iVi.. Robertson is in the service of the Hudson's Bay Company. J do not know if he was under Mr. Semple's orders. We always considered him as our head, and obeyed him ; we were under his particular orders. When I went to River Qui AppeUe, it was under his orders. Mr. Robertson, as well as Mr. Semple, was always willing that any merchant should pass and repass, if they did not 107 i- ; molest him. I never heard that cannon were planted on the banks of the river opposite the fort, to prevent the North- West people from going up and down the river. When I was at the fort at Qui Appelle, I told them that they might pass and repass if they went quietly. I have heard that this party of Half-breeds came to about a day's march from Fort Douglas in canoes and boats. There were cannon at Fort Douglas, and they were mounted on bits of carriages, but there were none on the other side of the river. 1 know nothing of two trains of pemican being taken from the North- West fort near Brandon-house. I know some was taken, and carried to Fort Douglas. I know there was a good parcel, but I do not know how much. I do not know if there were five or six hundred bags. There was enough to last some hundred people some time ; there was a good quantity. f J PIERRE CHRISOLOGUE PAMBRUN, sivorn. Examined by the Attorney-General. Mr. Pambrun. — I had been for some time under the orders of Mr. Semple, and on the 12th April, 1816, I left Fort Douglas under his directions, to go to the Hudson's Bay Company's house on River Qui Appelle. I set out with as much provision as would last us six days, when we would get to Brandon-house, where, according to my in- structions, I was to go first, and from thence, if prudent, to the Hudson's Bay post, (where I afterwards did go), at Qui Appelle. On the 1st of May, I left Qui Appelle, with five boat-loads of pemican and furs. As we were going down the river, on the 5th May, near the Grand Rapids, 1 made the shore in a boat, and a party of armed Half-breeds immediately came and surrounded me, and forced me to give up the boats, and the furs, and pemican. The pemican was landed, and the boats taken across the river. I was kept a prisoner for five days. Cuthbert Grant, Peter Pang- man, Thomas M'Kay, were of the party who made me a prisoner. Boucher was not, and I do not know whether Paul Brown was or was not. I was taken back to River Qui Appelle, to the North -West Company's post, and there I saw the prisoner, Paul Brown, but not Boucher. I was kept there five days. Mr. Alexander M'Donell was in com- mand at this station, and 1 asked him why I had been made S I hm^ ' / i- 108 mi ml F'rt H prisoner, or by whose orders 1 had been arrested, and he said it was by his own. There were about forty or fifty Half-breeds at this fort. Cuthbert Grant frequently said they were going to destroy the Settlement, and I was told Mr. M*Donell said, the business of the year before was a trifle to what this should be. Cuthbert Grant frequently talked with the Half-breeds about going, and they sung war-songs, as if they were going to battle. On the 12th I left Qui Appeile. We drifted down to the place where I had before been stopped, and the pemican, which had been landed from our boats, was re-embarked by the North-West people. When we got to the Forks of the River Qui Appeile, we encamped. The people who were taken with me had been liberated some time before, and liad gone away, but I had been kept a prisoner. The next morning after we had encamped, that is, the people in the two boats which went with Mr. M'Donell, a number of Indians, who were in camp at some distance, were sent for, and they came, and went into Mr. M'Donell's tent, who made a speech to them ; a party went also on horseback from Fort Qui Appeile armed, but I was in one of the boats with Mr. M*Donell. In going down the river, they talked freely of breaking up the Settlement, and taking Fort Douglas, and the people frequently told me that Mr. M'Donell had said, the business of the year before had been nothing to what this would be. Mr. M'Donell's speech to the Indians was to this effect : " My friends and relations, " I address you bashfully, for I have not a pipe of tobacco " to give you. All our goods have been taken by the ** English, but we are now upon a party to drive them away. " Those people have been spoiling your lands, which be- " long to you, and tbe Half-breeds, and to which they ** have no right. They have been driving away the buffalo, ** and that they (the Indians) would soon be poor and " miserable, if they (the English) staid j but that they " (this party) would drive the^n away if the Indians did ** not, for that the North-West and the Half-breeds were that if he and some of his young men would « (( one join- Chief Justice. — If loho would join with his young men ? Mr. Pambrun. — A Chief who was present, belonging to the Saulteux tribe. He said, that if " some of the young " men would join, he should be glad.'* Pangman and one Primcau acted as interpreters. Mr. M'Donell spoke in I 109 h French. The Chief said, " that he knew nothing about it, " and should not go himself ; if sonic of the young men " went, it was nothing to him." Mr. M'Donell then said, *' well, it is no matter, we are determined to drive them " away, and if they make any resistance, your lands shall be " drenched with their blood." This harangue was made on the 13th or 14th May, and was delivered by Mr. M'Donell in French. 1 know that the prisoner Paul Brown was of the party. The next morning the Indians went away, and the party drifted down the Assiniboin River to the Grand Rapids. From there, about thirty started, among whom were Mr. M'Donell, Cuthbert Grant, and a number of Half-breeds. I did not see Seraphim Lamarre among them. I was left behind and still a prisoner, but in the evening a spare horse was brought by Mr. Fraser and one Taupier, for me, and I accompanied them on horseback to the North- West Fort, near Brandon-house. When I ap- proached, I saw a crowd assembled about the gate. 1 sup- pose there were from forty to fifty persons assembled. Their arms were down by the gate, and as I entered it, a number of them presented their guns at me, making use of insulting language. I complained to Mr. M'Donell of this treatment, and asked him if it was by his orders, and he said he would speak to them about it, but I do not think he ever did. In the course of the night I saw some property that was brought away from our fort at Brandon-house. I saw tobacco and carpenters' tools, and other things. I wished very much to go over to see a Mr. Peter Fidler, who had charge at Brandon- house. I found that he was not at the fort, bu^. having been turned out, was encamped in a tent completely without the fort. Besides tobacco, carpenters' tools, &c. there were some furs also brought from Brandon- Iiouse. The tobacco which had been brought was divided the next day amongst these men, the Ha ^-breeds. About the 24th or 25th May, the party was separated into smaller divisions, and chiefs appointed. The property was em- barked, and the whole set off to go to Portage des Prairies ; a part went by water, but the Half-breeds generally went by land, on horseback. Having arrived at Portage des Prairies, the whole of the pemican and packs was landed, and formed into a sort of breastwork or fortification, having two small brass swivels there, which the year before had been taken from the stores of the Settlement. On the morning of the )7th June, being at Portage des Prairies still, which is about : I' w *! m i %% III m 110 ^ sixty miles from the Settlement, the Half-breeds mounted their horses, and set off for it j they were armed with guns, pistols, lances, and bows and arrows. Cuthbert Grant was with them, Antoine Hoole, Thomas M'Kay, the prisoner Brown, and I also saw Boucher. I remained behind ; so did Mr. Alexander M'Donell, Allen M*Donell, John Sivcright, Seraphim Lamarre, and I also saw Eraser there, and about thirty to forty men staid to help to guard the pemican. The object of this expedition was to take Fort Douglas, and break up the Settlement. If the settlers took to the fort for protection, then the whole were to be starved out. The fort was to be watched strictly at all times, and if any of them went out to fish, or to get water, they were to be shot, if they could not be taken prisoners. 1 certainly had, from all I heard, very serious apprehensions for my friends. I do not remember that Cuthbert Grant said any thing parti- cular on the morning he went away. On the 20th, a mes- senger arrived from Cuthbert Grant. When Mr. M'Doneli saw him approach, he went out and spoke with him, and presently gave three cheers. Upon this the other Gentle- men asked what was the news. Mr. M'Donell said, in French, it was good; twenty-two English are killed, and among them Semple and five of his officers. He then an- nounced it to the people, and said in French, " Sac.r4 nom " de Dieu, bonnes nouvelles, vingt-deux ^nglois de tu^s.** The Gentlemen present all shouted with joy, especially Lamarre, M*Donell, and Siveright. Pangman, commonly called Bostonnois, enquired whether there were any killed upon their side ? it was answered, that one had been, and on hearing who it was, he said it was his cousin, and then exclaimed, ** my cousin is killed, and I will be revenged j the affair shall " not end here, they shall all be killed, for so long as these ** English are let go out of the river, they always will be " coming back, as they had done last year;" and he also said, that " there should not be one of them allowed to go " out of the river, for so long as they were permitted to go " out, they would always cause a disturbance and mischief." Upon this, two men, named Latour and Montour, were ordered to get horses, and immediately dispatched on horse- back to the Red River, with directions to detain all the settlers till Alexander M'Donell should arrive. We then pursued our journey by land towards the fort, to within about thirty miles of. it, and the remainder of the way I went by water. When I arrived at Fort Douglas, Ill \>:\ "i; , f< I found all our people were gone. I met none of them there at all ; the fort and property were in the possession of the Half-breeds, the same Half-breeds as I had before seen start for Fort Douglas. Grant was there, and a number of those 1 have before mentioned ; they were in fact the party who had gone down on horseback with the carts from Portage des Prairies. Brown and Boucher, the two prisoners at the bar, were there; they were altogether about forty-five in the fort, and not at the Settlement. Mr. M*Donell had arrived fifteen hours before me. The day after, I asked Mr. M'Donell to let me go to the spot where the accident had occurred, which he did, and I went by myself. Attorney-General. — Were Mr. M'Kenzie and Mr. M'Leod at Fort Douglas at this time ? Mr, Pambrvn.—Noy they did not arrive till the 24th of June. I heard Cuthbert Grant, Antoine Hoole, and others, speak together of what they had done ; they spoke it among themselves, boasting of it; one said that he had killed one, and some that they had killed two, and so on, but they generally boasted of their feats. I heard Cuthbert Grant say, that he had fired upon Mr. Semple, and upon McLean. The general account of the Half-breeds was, that Grant was a brave man, and had conducted himself well in the engage- ment. They did not seem to be sorry for, or hide, what they had done. Attorney-Getieral.—D'id you see the place where any of these persons were buried ? Mr. Pambrun. — Yes, I did ; the limbs of the persons who had been killed, were out of the ground, and many of their bodies in a mangled condition. I was afterwards sent to Fort William ; I was not there considered as a pri- soner ; I was allowed to go in three or four days. Chief Justice. — Before he goes any farther, will you let him relate the names of those whom he found at Fort Douglas, upon his arrival there ; I mean those whom he saw start from Portage des Prairies. Mr. Pambrun. — ^There were of the Half-breeds, Cuth- bert Grant, Antoine Hoole, Thomas M'Kay, Louis Lacerte, Alexander Fraser, Fran9ois Deschamps, Le Gros T6te, Andr^ Traquen, Alexander Tookey, Tookey his brother, Moustouche, Mauellet, and several I do not recollect ; of Canadians there were Francois Deschamps the elder, who went by water, Boucher Lavigne, and Louis Morain. Bou- U H 1' 112 clier went down to Fort William in the same canoe that I did. He freely admitted that he had been in the battle. He told me that he had acted comme and)assadeur, and was the first man who had spoke to Governor Semple. In the canoes that went with us to Fort William, were the furs which had been taken from me when I was taken to the North- West post on River Qui Appelle. t Cross-Examination, conducted by Mr. Sherwood. Mr. Pambrun. — The Bois-brules are the bastard children, either of French or English fathers, by Indian women ; they are the offspring of white men by Indian women ; some of them I know have been sent to Lower Canada, and received their education at Montreal and Quebec. I do not think they consider themselves as white men, or that they are so considered by while men, nor do they consider themselves as only on a footing with the Indians ; they are employed in all capacities, as clerks, interpreters, and en- gages. I know that Assiniboin, a Half-breed, was one who went down on horseback. I know a person named Hamelin who was there, but I do not know that they are now in the service of the Hudson's Bay Company. They call the people engaged in the service of the Hudson's Bay Com- pany, the English, and they call me an Englishman, but I am a Canadian ; they call me so from opposition to the English settlers. Mr. Alexander M'Donell is one of the Partners of the North-West Company, as I have always un- derstood. I never took Boston nois Pangman prisoner, but he was taken by some of the Hudson's Bay people before I was taken. I do know that Fort Gibraltar was once in pos- session of the North-West Company. As I was going to Fort des Prairies, I saw it in their possession, and in going up again, I saw it in possession of the Hudson's Bay people. The fort was taken, but not taken away, for I found some of the Hudson's Bay people there. I do not know that the Hudson's Bay people have an exclusive right to that country, and to erect trading posts therein. I knew the late Governor Semple and his hand-writing; this Letter of the 23d March, addressed to Alexander M*Donell, and this of the 14th May, also addressed to him, are Mr. Scrapie's hand-writing. Mr. Sherwood. — I move they be read. 3 * ■• ■■■!•!»„« i-.!;-. n < 7 The two following Letters were then read. A, RI 'Do NELL, Esquire, Qui Appeile. SIR, vi Brandw, 23d March, I S lb". I enclose to you a letter from Mr. Robertson, which I have perused, and which happily requires no conuiient. 1 sus- pect that your associates have mistaken my character. Remem- ber what 1 now say to you: Should you, or yuur Indian or Black-breed allies, attempt any violence agahist the Hudson's Bay Company at Qui Appeile or elsewhere, the consequences to yourselves will be terrible. I am, Sir, .^ , , Yours, &c. ' : ,, , . (Signed) ROBERT SEMPLE. (\ A. M'DONBLL, Esquire, SIR, Fort Douglas, 14//t Mai/, 1816". I take the opportunity of Mr. Seraphim Lamarrc's return towards Qui Appeile, to acknowledge receipt of your letter of the 6th instant. The idea of Mr. Robertson niakuig a journey of 120 miles, for the purpose of a conversation with you, appears to me wholly inad- missible, when the same purpose may be just as effectually an- swered at the first point, or at either of the Forks. Still less can 1 think of delegating full powers to any man to form definitive arrangements, when I myself am on the spot, and must alone be answerable for them, both to friends and enemies. In the mean time, my wish for general tranquillity will ever remain unchanged. I am satisfied with the proofs which remain in our hands, and seek no more. Should you be unwilling to meet me here, I leave it to yourself to appoint a spot at a mo- derate distance from the Forks for a conference. Whatever place you may adopt, 1 repeat, that your person and property shall be considered sacred, unless you commence acts of hostility. Should you, however, have occasion again to write to me, it will be per- fectly unnecessary to talk of your means of retaliation. 1 also, should I be compelled to it, have my schemes of farther and still farther retaliation, the shock of which, if I mistake not, should be felt from Athabasca to Montreal. I am, Sir, Yours, &c. (Signed) ROBERT SEMPLE. I ^4 lit 114 i ■ »■ . Mr. Pambrun. — I do not know where Athabasca is. I have been informed that it is far north, and that trade is carried on there by both Companies. It is far north, I be- lieve, of Red River. The party that went down to Red River set off to go, a part by land, and a part by water, and each party had pemican with them ; those that went by land took it in carts, and those that went by water, took it in canoes. Portage des Prairies is about sixty miles from Fort Douglas. I do not consider that it would have been unsafe for this party to have gone by water, and have passed Fort Douglas, if they had not committed depre- dations. Mr, Sherwood. — Do you not know. Sir, that they had been robbed before ; if not by you, do you not know that their pemican had been taken from them by some of your people ? Mr. Pambrun, — I was never the robber of the North- West Company, nor do I know that they were robbed. 1 know that they robbed me. Mr. Sherwood.—DiA they not, at that very time, tell you, that what they did to yoiif was in retaliation for similar con- duct on the part of Colin Robertson to them ? Don't be angry ; I did not charge you with being a robber. Mr. PamfcrMM.— Alexander M'Donell told me, when I asked by whose authority I was taken, that it was by his, and that it was in retaliation for what Colin Robertson had done that I was robbed, and that he would starve the Colo- nists and the Hudson's Bay Company's servants, and force them to surrender. il/r. Sherwood. — Do you think that the Hudson's Bay Company would have done the same, if such a daring out- rage had been committed on them, as these people had perpetrated at Fort Gibraltar ? If Fort Douglas had been razed to the ground, all the property of my Lord Selkirk and the Company sent away, do you not think they would retaliate in the same way ? Mr. Pambrim, — No, I do not j for it never was their dis- position to kill any body. Mr. Sherwood. — Indeed ! did you never hear of any body being killed by them in affrays that have taken place ? Mr, Pambrun.— Noy I have not ; nor do 1 believe they would. Mr. Sherwood, — May I ask you. Sir, on what you found your opinion of their humanity ? 115 Bay out- [e had been lelkirk ^ould |r dis- body they tound Mr. Panihmn. — I found my opinion on this, liiat if tlicy liad wished to kill, they might ; but they never have, and that is why 1 believe they never will. Mr. Sherwood. — That is your opinion. I happen to have a diti'erent one, and so have many other people. Have you any other reason. Sir, than because you do not happen to know of their taking the life Chief Justice. — What has this to do with the case before us ? Either examine the witness to the case, or be silent. Mr, Sherwood. — Whenever your Lordship pleases, it Is my duty to bow, and I certainly shall ; but if permitted to pursue my own course, I shall put that question to Mr. Pambrun. Cluef Justice. — Well, then, silence now. Mr. Sherwood sat down. Mr, Sherwoodf (rising.) — Does your Lordship prohibit my cross-examining this witness farther ? Chief Justice. — I have no wish to stop your cross-exami- nation, if you conduct it regularly ; none at all. Mr. Sherwood. — What did you say to Mr. M'Donell, upon first seeing him at the fort at Qui Appelle River? Tell what passed at that time — the whole that passed. Mr. Pambrun. — I asked him by whose authority Cuthbert Grant had taken me prisoner, and took my property, or the property I was in charge of, from me, and he said it was by his orders, and that it was done by way of retaliation for Fort Gibraltar having being taken by Mr. Robertson, and that he would make the settlers and servants of the Com- pany surrender, or he would starve them out : this is all 1 recollect to have passed. Mr. Slierwood. — What, Sir, did Cuthbert Grant say to you relative to his own share in the affair of the 19th June ? You have told us that the general report was, that he was a brave man, and conducted himself well on that day, and you also told us of something that he himself said j tell us that again, will you ? Mr. Pambrun. — Mr. Grant told me that he had fired upon Mr. Semple, and had shot him. It was not in confidence that he said this to me ; it was in a general conversation; He said that he had shot Mr. Semple, and had fired on Mr. M*Lean. I never received an^. orders from Mr. Semple, or Mr. M'Lean, to molest or interfere with the North-West Company's people, but, on the contrary, our orders at all times were to do them no violence, and not to interfere with them at all. i2 M 110 u Mr. Sherwood. ^-li is a great pity they were not more generally obeyed by his servants, if those were his orders. Re-examined by the Attorn ey-Gknmral. >■ Attorney'Getieral. — What were your orders, Sir, (for I believe you received particular ones,) from Mr. Semple, when you started from Fort Douglas to go to Brandon- house, and thence, according to information you might ob> tain there, to the Hudson's Bay post on River Qui Appelle ? Mr. Pambrnn.'—l went under orders from Governor Semple to be peaceable, and to avoid every thing like hos- tility, unless I was attacked. My instructions were con- tained in a letter in these words : " Mr. Pambrun. Sir, Having" (Mr. Pambruri's repeating the letter was ol^ected to by Mr, Sherwood, and Mr. Pambrun was directed by the Court not to repeat it.) That was the general nature of my instructions ; I was to go to Brandon-house, and thence to Qui Appelle, peaceably, if they would let me go, and I went peaceably, till I was stopped and robbed of the property; Attorney-General.'^l will not ask you. Sir, whether you know of the Hudson's Bay Company ever having taken the lives of one-and-twenty persons at one time ; but I will ask you, Sir, do you know, or did you ever hear, of a single life having been taken by them ? Mr. Pambrun. — I do not know of any life having been taken, nor did I ever hear of any one losing his life by them. Mr. Sherwood. — I must ask you, Sir, before this unhappy affair, (in which we are now endeavouring to see who are the murderers, or who are to blame,) do you know of the North- West Company having taken the lives of one-and- twenty, or of one person ? Do you, before this time, know of any case ? Mr. Pan^run. — I know of none before this, o\\ the part of the North-West Company. 1 have been told that there — Mr. S1ierv)ood. — We do not want what you was told. I have been told very different to what you have been, but that is of no consequence here. FREDERICK DAMIEN HEURTER, sivoi-n. Examined by the Attorney-General. Mr. Heurter. — I was not present at Fort Douglas on the 19lh Jui:e, in the year 1816. I came down there about eight days after with a Partner of the North-West Company, a Mr. Archibald Norman M'Leod, and we found it in pos- 117 session of Mr. Alexander M*Donoll, and some Half-brccdi'. Mr. Alexander M'Donell is a Partner also in tlie North- VVest Company. I was at that time in their service as u clerk. Cuthbert Grant was there, and I also saw Francois Firmin Boucher, one of the prisoners, there. I heard o^ what had passed on the 19th June, and I visited the field of battle, in company with the persons who were there.— Cuthbert Grant, Alexander Fraser, Deschamps the father, anii two sons, Joseph called Gros T^te, were of the party who went, and Joseph Deschamps related the particulars of how they shot the people. The observations were not made to me, but to some of the Partners of the North- West Com- pany who went with us. He related pjirticulnrly how they shot tlie people who came with Mr. Scmple. I did not hear Cuthbert Grant say any thing ; it was young Des- champs that 1 heard relate the particulars. I was present when the speech was made to the Half-breeds by a Partner of the North-West Company, Mr. Archibald Norman iVl*Leod ; but I do not know that any thing was answered by Grant, or by Boucher. Cross-ExaminatioHf conducted by Mr, Sherwood. Mr. Heurter.-^l am not in the service of the Hudson's Bay Company, nor of the Earl of Selkirk, nor have I been. JOHN PRITCHARD, sworn. Examined by the Attorney-General. Mr, PritcJutrd. — In May, 1816, 1 was living at Red River, and in that month and long before, from the Indians and freemen who lived in our neighbourhood, 1 heard of its being intended to attack us. I heard this as early as March, and in May and June the report became general. In con- sequence of this information, we were constantly upon the look-out ; day and night, a watch was kept for the express purpose of giving the earliest notice of their approach. On the evening of the 19th June, I had been up stairs in ray own room, and about six o'clock, I heard the boy at the watch-house give the alarm that the Half-breeds were coming. A few of us, among whom was the Gover- nor, there were perhaps six altogether, looked through a spy-glass, from a place that had been used as a stable, an breeds paint ; they imitate the white people, and dress like them at all times, except when engaged m sport- ing as Indians. They were painted as I have been accus- tomed to see the Indians at their war dance ; they were very much painted, and disguised in a hideous mtcnner. They gave the war-whoop when they met Governor Scra- pie and his party, as I was told ; they made a hideous noise and shouting. I know from Grant, as well as from other Half-breeds and the settlers, that some of the colonists had been taken prisoners. Grant told me that tlicy were taken to weaken the Colony, and prevent its being known that they were there, they having supposed they had passed the fort unobserved. Their intention clearly was to pass the fort. 1 saw no carts, though I heard they had carts with them. I saw about five of tlie settlers prisoners in the camp at Frog Plains. Grant told me they intended to have en- camped below the Plains, and have prevented the settlers going to the river for water, or if they did go, to have shot them. He also said to me in the same conversation, " You see we have had but one of our people killed, and " how little quarter we have given you ; now, if that fort is ** not given up, with all the public property instantly, witli- ** out resistance, man, woman and child shall be put to " death." He said the attack would be made upon it that night, and, if a single shot were fired, that would be the signal for the indiscriminate destruction of every soul, man, woman and child. I was completely satisfied my- self that the whole would be destroyed, and I besought Grant, whom I knew, to suggest, or let them try and devise, some means to save the women and children. 1 represented to him, that they could have done no harm to any body, whatever he or his party might think the men had. I entreated them to take compassion on them. 1 reminded him that they were his father's country-women, and in his deceased fatiier's name, I begged him to take pity and compassion upon them. Attorney-General. — Before you proceed with that part of the melancholy history, 1 wish to ask you, Mr. Pritchard, whether there was any proposition on your side, or any dis- position in your party, to attack the Half-breeds, or when they were coming up to you, was there any disposition to tire, or any proposal that you should fire upon them ? Mr. Prililuinl, — At the lime the Half- breeds divided : H f\' I li 1 I ! hi: .i( 122 M \j pw rW V IP '?■ r'li ^\ mv m^ *>>■ I into two parties, just before surrounding us, one of our people, (Bruce I believe,) did propose that we should keep them oft", and Mr. Semple turned round, and asked them who could be such a rascal as to make such a proposition, and not to let him hear such a word again. Mr. Scrapie was very much displeased indeed. I begged Cuthbert Grant, in his deceased father's name, to have compassion on the helpless women and children, and spare them, whatever they might do with the men. I tried to soften down things with him, and succeeded at least so far with liim, that he said, if all the arms and public property were given up, we should be allowed to go away ; and he would give us an escort to protect us against other parties that were expected. I said they were hard terms that we must all go away, but he said they were the only terms that he could grant. I then wished to go to Mr. M'Donell at the fort with this proposition, for I was afraid lest they should retract: but another difficulty presented itself; the Half- breeds were unwilling that I should be permitted to go, lest I should remain at the fort. I spoke to them, and en- deavoured to persuade them to acquiesce, but I did not seem likely to succeed ; at last I appealed to Cuthbert Grant : " Mr. Grant, you know me, you know I will return ; " if I say 1 will, I will return, and I am sure you will " answer for me that I will" — to this he agreed, and I went to thu fort. Grant accompanying me a good part of the way as a protector, it being now late at night. Arrived at the fort, I communicated to Mr. M*Donell the terms upon which they had agreed to let us depart, and that they must be complied with by morning, when I was to return, ac- cording to the agreement I had made with Grant. First, the settlers were assembled at the fort, and when the pro- posal wrs made to them, they said they would not accept them, and would not surrender on such terms. Mr. M'Do- nell therefore, though convinced in his own mind that re- sistance would be fruitless, said that he could not accept them J that he could not give up the fort if the people were determined to defend it. In the morning, however, they concluded that it would be better to comply with the terms than risk more blood being shed. I accordingly went to Frog Plains, and after some time, an agreement was made between Mr. M*Donell and the Half-breeds, upon the terms I have stated, and an inventory being taken, the fort was delivered over to Cuthbert Grant, who gave receipts on each sheet of the Inventory, signed Cuthbert Grunt, clerk 123 way the pon must ac- irst, pre- cept Do- lt re- ccept were they erms nt to nade the fort Is oil Iclcrk for the North-West Company, acting for the North-West Company. 1 remained at Fort Douglas till the evening of the twenty-second, when we proceeded down the river, on our way to Hudson's Bay. On the following day, or the twenty-fourth, I am not quite certain which, we met a number of canoes, in which were Mr. Archibald Norman M*Leod, and a number of Partners of the North-West Company, perhaps eight or ten. Attorney-General. — Were either of the prisoners with you then ? Mr. Pritchard, — No, Boucher had gone with us no farther than the Forks. At the time of the capitulation. Grant had promised us an escort to protect us against two other parties of Half-breeds whom he said we should meet, the one headed by William Sl...w, and the other by Simon M*Gillivray. I had thought Boucher was to go with us. I argued with Grant upon the danger we should be again exposed to, but it was no use ; we went without an escort. After meeting with Mr. M'Leod we were ordered ashore, and I was sent to Fort William with some others. I did not see Brown at the time of the horrid affair on the Plains. I saw him the day after, at Fort Douglas ; he came with the party ; they were, I believe, all armed, and I did not see Brown afterwards. I know Cuthbert Grant very well, and his hand-writing, having frequently seen him write. (A Letter being here produced.) This Letter is in Cuthbert Grant's hand-writing. The following Letter was then read, upon motion of the Attorney-General. River Qui Appellc, 13th March, 18\6. MY DEAR SIR, I received your generous and kind letter last fall by the lust canoe. I should certainly be an ungrateful l)eing, should I not return you my sincerest thanks. Although a very bad hand at writing letters, I trust to your generosity. I am yet safe and sound, thank God, for I believe it is more than Robertson or any of his suite dare to oft'er tlie least insult to any of the Bois- brules, although Robertson made use of some expressions which I hope he shall swallow in the spring ; he shall sec that it is nei- ther fifteen, thirty, nor filly, of his best horsemen that can make M, 11 : 124 the Bois-brul^s bow down to hioi. The Half-breeds of Fort des Prairies and English River, are all to be here in the spring ; it is hoped we shall come off with flying colours, and never to see any of them again in the colonizing way in Red River ; in fact, the traders shall pack off with themselves also, for having disobeyed our orders last spring, according to our arrangements. We are all to remain at the Forks to pass the summer, for fear they should play us the same trick as last summer, of coming back ; but they shall receive a warm reception. I am loth to en« ter into any particulars, as I am well assured that you will re> ceive a more satisfactory information (than I have had,) from your other correspondents; therefore I shall not pretend to give you any ; at the same time begging you will excuse my short let- ter. I shall conclude, wishing you health and happiness. I shall ever remain, , My dear Sir, , ' Your most obedient humble servant, (Signed) CUTHBERT GRANT.* My sister and Betsy return their most respectful compliments to you. - .■■£•: J. D. Cam ERSON, Esquire. ' • i * To understand the allusion in this Letter, it is necessary to revert to the occurences of the preceding year. In June, 1815, the Half-breeds, who had been exasperated by the prohibition attempted to be enforced aeainst their hunting the buffalo, by the imprisonment of some of their Chiefs that spring, by having been attacked and fired upon without any provocation, by the colonists, as well as by othpr outrages, determined that their oppressors should leave the Red River. Upon that occasion, the fol- lowing Capitulation was interchanged between the Chiefs of the Half-breeds, and the heads of the Colonists. " Articles of Agreement entered into between the Half-breed Indians, of the Indian Territory, on one part, and the Honourable Hudson's Bay Com- pany on the other, viz. : " 1. All settlers to retire immediately from this river, and no appearance uf a Colony to remaui. " 2. Peace and amity to subsist between all parties, traders, Indians, and freemen, in future, throughout these two rivers, and on no account any person to be molested in his lawful pursuits. " 3. The Honourable Hudson's Bay Company, will, as customary, enter this river with, if they think proper, from three to four of their former trading boats, and from four to five men per boat, as usual. *• 4 . Whatever former disturbance has taken place between both parties, that is to say, the Honourable Hudson's Bay Company and the Half-breeds of the Indian Territory, to be totally forgot, and not to be recalled by cither party. " " 5. Every person retiring peaceably from the river immediately, shall not be molested in their passage out. " 6. No people passing ihc bununer lor the Honourable Hudson's Bay l^.. 125 Mr, PnVcftarci.— The settlers were generally occupied in agricultural pursuits, in attending to their farms ; the ser- vants of the Hudson's Bay Company in their ordinary avocations. They lived in tents generally and huts. In 1816, at Red River there was but one house, the Governor's, which had been called Fort Douglas by the settlers after their return to the Settlement in 1815. There were houses before that time, but they were burned down in the attack that was then made on the Colony. The settlers were employed during the day-time on their lands, and used to come up to the fort to sleep. The Red River runs into Lake Winnipic, and the Settlement is at the Forks which are formed by the junction of the great Red River with the lesser one, or the River Assiniboin. Fort Douglas is about eighty miles from Lake Winnipic, and it must be, I think, in a south-west course ; I think that must be its bearing. Attorney 'General. — Will you now, Sir, tell us whom you saw at this lamentable battle that you knew personally, and whom you saw fire ? Mr. Pritchard. — I saw the two M*Kays, Hoole, and Cuthbert Grant, but I can not say positively whom I saw fire, except Thomas M'Kay, whom I saw kill Captain Rogers ; I can not speak to any one else. I saw Boucher Company, shall remain in the buildings of the Colony, but shall retire to some other spot, where they will estabhsh for the purpose of trade. CUTHBERT GRANT, BOSTONi>lOIS PANGMAN, WM. SHAW, BONHOMME MONTOUR, The Four Chiefs of the Half-Brbeds, by the mutual consent of their fellows, JAMES SUTHERLAND, JAMES WHITE. Red River, Indian Territory, "> Forks, Red River, 25th June, \815," J This Capitulation was signed on the part of the Half-breeda by their four above-named acknowleideed Chiefs, and on the part of the Hudson's Bay Company, by James Sutherland their chief factor, and a justice of the peace, and James White, surgeon to the Settlement, who had been left in charge by Miles M'DonelT, upon his being arrested and sent to Canada. Notwithstanding the stipulations thus made, the Colonists re- turned in force in October following, under the command of Colin Ro- bertson, and began the Settlement afresh ; yet this breach of engagement was not resented by the Half-breed tribe, till obnoxious proceedings were again resorted to, and Bostonnois Pangman, and others of the nation, were made prisoners. These circumstances will explain and illustrate the expressions made use of in the Letter produced and read in evidence. ■1 \^ I J.- ■ f I' 1 if ff I n-«;?Li 12G afterwards at Fort William, and I enquired of him what passed between him and Governor Scmple after the questions and answers about the fort ; and he said that he told the Governor that, unles.i they laid down their arms and sur- rendered themselves prisoners, they were all dead men. The party of Half-breeds came out of their way. 1 think, if they had not had hostile designs against the Settlement, had they wanted to carry provisions to meet canoes, they need not have gone to the Settlement ; they could have passed by it. At Frog Plains I saw some carts empty. Cuthbert Grant had promised us provisions for the voyage to the Hudson's Bay coast, and when I spoke to him about it, he said he could not let us have more than he had given us, as it was all at the forts above ; but if we would wait till he sent to Bus de la Riviere, which would take about a fortnight, we should have it ; we were, however, glad to get away at any rate, and therefore went with the little we had. Cross-Examinationf conducted by Mr. Sherwood. Mr. Sherwood. — If I understand you, Mr. Pritchard, you have distinctly said that you do not know which party fired first ? Mr. Pritchard. — I have said so. I can not say who did. I think Mr. Holte must have fallen by the first shot, be- cause I turned round instantly, and saw him struggling on the ground. 1 have a knowledge of Mr. Miles M'Donell's Proclamation, but I do not kn^w of two sleigh-loads of pemican being taken under it. Of some boat-loads being taken I do know, from having received a letter informing me of it. Mr. Sherwood. — Before we go into that, I will ask you. Sir, in what capacity you was at the battle of the 19th June? Mr. Pritchard. — I was there in the capacity of a settler at Red River. Mr. Sherwood. — You was not in the service of the Hud- son's Bay Company ? Mr. PritcJmrd. — I was not ; I was a settler on Red River. Mr. Sheiwood. — You was not then, nor are now, in the pay of that Company ? Mr. Pritchard. — I was not j I am not, nor have I ever been, in the pay of the Hudson's Bay Company. Mr. Sherwood. — I will now ask you. Sir, do you know of any pemican ever having been taken under this famous 127 rroclamation oi Mr. Miles M'Donell, and where, and liow much ? Mr. Priichard. — Yes, I do j a quantity was taken from under my care at the post on the River Souris, or Mouse River. Four persons, I believe, came to Brandon-house ; but in the first instance, Mr. Spencer came, and wanted entrance into the fort ; I asked in what quality he came, and he said, as a private gentleman, and 1 admitted him. He stated he came to me on the subject of Governor M'Donell's Proclamation prohibiting the exportation of pemican, and that he had orders to detain it. After some conversation, I made a proposition, which Mr. Spencer sent down to Captain M*Donell. A few days after Mr. Spencer and some people came and demanded entrance in the King's name, to search for provisions which were intended to evade the Proclamation. I wrote an answer to this demand, and put it through the pickets to Mr. Spencer. He looked at it, and said it would not satisfy him. I did not choose to open the gates, and I said that he must use force if he wanted to come in. Accordingly they set to work, and cut down the pickets and entered the fort, having broken down the outer gate. When they entered, Mr, Spencer asked where the pemican was, or Mr. House, who was with him, did. I said that he had a good nose, and might find it out. Mr . Sherwood.— 'het me ask you now. Sir, was you an eye-witness to this transaction from first to last ? Mr. Pritchnrd. — I was. I saw the whole of it. It was an armed force that accompanied Mr. Spencer. They had guns with bayonets. They found the pemican after search- ing some time, and took it away. There was about four hundred bags of it; there might be more ; my memory is not very accurate, but I think there were about four hundred bags, each bag weighing about eighty-four pounds. I have only hearsay knowledge of Fort Gibraltar being taken by the Hudson's Bay Company, but when I went to it, I found it in possession of Colin Robertson. I also know of Fort Pem- bina, but not of its being taken. I know of prisoners being taken from there and sent down. There were Bostonnois Pang- man and others sent, upon my application for burning my crops. I know that Mr. Holte was one that accompanied Governor Semple on the 19th June, to go and see what the party on horseback wanted. I do not know that he was there fighting j he had not much time to fight j he had a gun ; the party generally had guns, and some of them guns with bayonets, but not all. I writing of the late Mr. Holte. (// Letter know the hand- produced.) This 1) » "it/" 1 t 128 Letter, addressed to myself, is the hand-writing of tlio late Mr. Holte. The following Letter was then, upon motion of Mr. Sherwood, put In and read. Fort Douglas, April 14/A, I8l6. Mr. John Pritchard, ' MY DEAR SIB, ' / • I received your kiud Letter, but what you mean by the explanations you therein mention, may I be damned if I know, as I do not recollect having mentioned any thing of the kind ; however, my passions often bring me into errors, which I after- wards wish were at the Dt-vil — so no more about it. Mr. Lofty once in my presence injured your character, but this I would not admit of, and you of course must submit to be tried by a court martial, where you, no doubt, will be honourably acquitted, and Mr. Lofty replaced to answer for himself. Some days ago, I got the command of the schooner which is to be fitted out in man- of-war style, to be moored at the bottom of this river to inter- cept the North-West Company's canoes. So you see now that I will be in my proper glory, and I shall not fail to do my best to give the North- West scoundrels a drubbing if I can. A party of veterans are lately gone to Qui Appelle to take M'Donell, if possible — but I fear they will be disappointed in their views— they are under the command of Mr. Lofty's olio of perfection, (Mr. Pambrun.) I should send you some few of my private property, were I uot informed that you have received a supply. You'll, no doubt, soon be here, when we shall, over a good cup of tea, settle every thing — in the mean time I beg you'll be kind to present my compliments to Mrs. Pritchard, and the gentlemen of your mess. Tell Dr. White that I should have sent him a letter long ago if I had but had paper ; but as that has not been the case, he will, I know, readily excuse me. I am, my dear Sir, Your sincere (Signed) O. HOLTE. Mr. Sherwood. — Pray, Sir, who is meant by Mr. Lofty in this Letter ? Mr, Pritchard. — Mr. Lofty means Colin Robertson. I did not see Mr. Holte Bra ; I think it impossible, he was shot so soon. The prisoner Boucher certainly did all he could to save my life ; when I was attacked 1 ran round him, and by that means, avoided being shot. ' Mr. Sherwood. — You was brought, I think you say. 1 20 to Fort Williiim. Where is Fort VVillinm, Sir, nnd how far oft? Mr. Piitchard. — Fort William is on Luke Superior, and is about a thousand mile^ off". It belongs to the North- West Company, and is in their possession at present. Mr. Sherwood. — Do you know, Sir, if that Fort was ever taken ? I do not know, my I^ord, that it is necessary that I should go into evidenee upon that subject ; 1 was going to shew the stae of enmity existing against us in that instance, but Chief Justice. — There is enough shewn to prove the n»a- levolence that existed on both sides, Tluf Honourable WILLIAM BACHELOR COLTMAN, sworn. Examined by the ATToriNF.Y-GENfiRAL. ,fty I iwas he ind say, Mr. Collman. — I went up into the Indian country in the year 1817, and to the place where the Settlement at the Red River was established. I never made any survey of the distance which it was from Lake Winnipic, but 1 should think that it was about sixty miles, and having about a south bearing from the nearest point; but, as to distance, I can not speak so positively. It was situated at the Forks of the Red and Assiniboin Rivers, which I have generally understood to be in about 49° SC north latitude, and the Red River Settlement commenced at a short distance beloW the Forks, its longitude I do not recollect, so as to speak with any degree of certainty, but I should judge it to be in between 90^ to 100° of west longitude ; my recollection, however, is very imperfect, but I should think it had some- thing more than 90 degrees ; it certainly had more than 80, and, according to my recollection and own idea, rather more than 90. The Red River Settlement was to the west of the River Winnipic, to the south-east of the Lake Ma- nitoboh, and between that Lake and the River, and Lake Winnipic. Upon consideration, I should think, according to the best of my recollection, that its longitude must have been nearly 100° west. I have seen the Great Seal of Lower Canada, and should know its Impressions. Chief Justice. — There is no occasion to examine Mr. Coltman on that, they prove themselves ; it has been so decided. x^^ r"**^!"'^ VI I'M Two tjreat Seal Instruments put in and ten6.—{/1ppen' dix K and L.) Cross-Examination^ conducted by Mr. Sherwood. Mr. Coltman.'—l have been at Fort Douglas, and also at the spot where it was represented to me, that the affair of the 19th June took place. I did not go farther north into the Indian country, than into the Red River country, through the River Winni])ic, and part of tlie lake of that name. It is certainly a matter of notoriety, that the Red River country was formerly frequented by the French traders, that is, before the conquest by the English ; but I do not know whether Nouvelle France was considered as taking in this part of the Indian Territory. CMef Justice.'-^l am tolerably conversant with maps my- self, but not sufficiently so, as to say whether this part of the country was, or was not a part of Canada. I never understood, extensive as were the limits of what the French called Louisiana, that they spread so far north as this, nor can I say distinctly that it formed a part of Canada. Rela- tive to Nouvelle France, it was never, I believe, defined with suflBcient accuracy to enable us to say what were its limits. If they have been, it is beyond my knowledge. Attorney-General. — There is one more question, Mr. Coltman, which I will trouble you with — whether, as a Magistrate of the Indian Territory, you acted at Red River in virtue of your Commission under the Act of the 43d Geo. III.? Mr. Coltman. — Yes, it was in prosecution of my duties under the Commission, that I went into that country, and proceeded to the investigation of the difficulties which had occurred there. S-j?, CHARLES BELLEGARDE, sw rn. Examined hy tories, in these words. — (tVhich section Mr. Sherwof d reajj vide the Acti Appendix P.) We here see that it is only the Mai^is- tratcs appointed under this Act, especially and solely fo* (he purpose of hearing crimes and offences committed !n tae Indian Territory, who have power to commit offenue:s to safe custody ; and they have the power of dof:;., < j, but not the ordinary Magistrates of either Province, i'o he bring- ing to justice an offender, or person committmg an offence, in the Indian Territories, it is indispensable that he be arrested by the warrant of a Magistrate duly commissioned to act in the Indian Territories, as well as within the limits of either of the two Provinces, or that he he taken into custody in the Indian Territories, and conveyed to the Pro- vince of Lower Canada; but there is no power vested in the local Magistracy of either Province to issue a warrant to take any man into custody for an oA'ence committed in the Indian Territory. 1 therefore object to the paper being read, upon the ground that, at the time of the examination in which he maoi ;>)is voluntary declara- tion, Boucher was in a state of illt^^i duress. Chief Justice. — ^There certainly is a difficulty in this case. It strikes my mind, that the ordinary Magistracy have not power to take cognizance of rienders in the Indian Terri- tories, but that it is the ^f 'gistrales specially appointed by the Governor under the socond section of this Act, who i :i ' *J I ! 4^ A /» ' 134 mil ■ f m (•. Hi nionc are authorized to hear crimes a.id offences committed there. As there is a difficulty in it, I could wish, if not indispensable to the case of the Crown, that the admission of this paper was not pressed ; but of that necessity you. Gentlemen, are the sole judges. Mr. Sf/ierujood.— The Officers of the Crown appearing still to wish this paper to be made evidence, 1 may, I presume, offer additional reasons against it. If not pro- duced against us, we had no intention to have shewn how illegally we have been dealt with. We have no intention of shewing how the King's counsel had been 'livulged by in- formations and voluntary declarations being given by Magis- trates to the world, to the high prejudice of strict and im- partial justice. Let us examl.ie the Act extending the juris- diction of the two Courts of the two Provinces, and the illegality of the dures ^ under which Boucher was placed, appears in a moment. Was Mr. Mondelet a Magistrate, appointed by commission under the hand and seal of the Governor, Lieutenant-Governor, or person administering the Government for the time being, of the Province of Lower Canada, to act as a civil Magistrate and Justice of the Peace for the Indian Territories ? Was Boucher ever taken before one of these persons so appointed by the Governor, for the purpose only of hearing crimes and offences, and committing any person or persons guilty of any crime or offence to safe custody, in order to his being conveyed to the Province of Lower Canada, to be dealt with according to law ? Was Boucher apprehended and sent to the Province of Lower Canada, as a person guilty of a crime or offence in the Indian Territory, and there delivered into safe custody, for the purpose of being dealt with according to law ? In neither of these ways, which I contend are the only legal ones, was Boucher in confinement ; and therefore, I submit, nothing can be heard of this voluntary declaration, because, although a Magistrate of Lower Canada, Mr. Mondelet wa.i not a Magistrate for the Indian Territory, and had therefore no right to issue a warrant against Boucher any more than 1 have. At tomey-Geyieral.-— The construction given by the Learn- ed Gentleman to the Act of 1803, may be correct j but I do not think, when Boucher was within the district of Mr. Mondelet, that it was illegal, upon information made be- fore him, to issue a warrant against an offender, thougli his offence vvjis committed in the Indian Territory; but putting that point uut of our consideration, we can certainly ask 135 Mr. Mondelet tu relate whatever he may have heard the prisoner say upon the subjeet of this mehincholy affair. Mr. Sherwood. — I beg to ditter with the Learned Attorney- General, and to say that as ail Mr. Mondelet's knowledge upon the subject was obtained by means of tiiis illegal war- rant, it is not competent to him to examine Mr. Mondelet as to what Boucher did or said before him. It was an illegal duress under which he was placed at the time Mr* Mondelet obtained any knowledge or information from Boucher. A justice of the peace in England, by force of a statute of Henry VIII. might arrest for a particular crime committed witliout the realm of England : but that did not apply to Canada ; and even in that case, the Justice could not take an examination under the statutes of Philip and Mary. SoUcitor~Generul."^l do not think that so apparent ; by this Act there are two ways in which a person having com- mitted a crime or offence may be brought down to Lower Canada, to be dealt with according to law ; and nan constat, at the present moment, how the prisoner was brought be- fore Mr. Mondelet, for the question has not been put. Chief Justice. '—This Act makes it the duty of the person administering the government of the sister province, " to (( appomt persons. wheresoever resident or being at the " time, tu act as civil magistrates and justices of the peace " in the Indian Territories, or parts of America not within the ** limits of either of the Provinces of Canada, or of any civil " government of the United States of America," and au- thorizes such persons so appointed, " to act for any of the " Indian Territories, as well as within the limits of either of *' the said Provinces, either upon information taken or " given within the said Provinces of Lower or Upper Ca- ** nada, or out of the said Provinces in any part of the " Indian Territories, or parts of America aforesaid, for the purpose only of hearing crimes and offences, and commit- ting any person or persons guilty of any crime or offence to safe custody, in order to his or their being conveyed to " the said Province of Lower Canada, to be dealt with ac- " cording to law ; and it shall be lawful for any person or ** persons whatsoever, to apprehend and convey, or cause to " be safely conveyed, with all convenient speed, to the Pro- " vince of Lower Canada, any person or persons guilty of " any crime or offence there, to be delivered into safe cus- " tody for the purpose of beintj dealt with according to law." The construction we are disposed to ^ive to this clause op- (C (C ^1 , i ir ,41 13f) i poses the reception of the examination of the prisoner be- fore Mr. Mondelet : relative to the proving it in any other way, 1 could wish, as very considerable delicacy hangs over it, that, after so much evidence has been produced, the Crown would not introduce a doubtful confession. There is difficulty about it, and, unless considered as essential to the case on the part of the Crown, 1 could wish that it should not be pressed upon us. A Magistrate of this, or the Lower Province, I think, cannot act in cases of oft'cnces committed in the Indian Territory. It should, accordirig to our idea, have been by the Commissioner, and not by the Magistrate, that the examination should have been taken, to enable you to prove it on the trial of the prisoner. There is no occasion to ask Mr. Mondelet any questions as to how he obtained his information, and I do hope that it will not be considered necessary to attempt to prove this very doubtful confession. (The Attorney-General here intimated, that the Crown yvould not urge the proof of the confession. The Chief Justice added, that he had always taken the construction of the Act to be, that the local magistracy of the two Pro- vinces had not power to act under this statute any more than a magistrate had to commit for oiYences out of his own district. Whether the Judges below held the same opinion, he did not know. Mr. Mondelet requested permission to mention, that in the course he had adopted, he had been sanctioned by the written opinion of the Judges of the Court of King's Bench for the District of Montreal, con- tained in a letter addressed to him). It being ])ast ten o'clock at night, the Court was ad- journed till to-morrow morning, the Jury being placed under the care of Mr. Sheriti' Ridout. h t~ Tuesdmj, 27th October, 1818. 'i PRESENT AS BEFORE. ». . > - Allorucy-Generul. — Before 1 call the witness I propose to examine first this morning, 1 wish to beg your Lordships* attention for a moment. — Sometiiing dropped on a former day from his Lordship, the Chief Justice, relative to the terms in which the Great Seal Instruments from the Lower Proxijice were worded, as well as your Lordships' construe- 137 or ad- jose ips* Imer the [wer iuc- tiun of that part of the Act of 1803, which provides for the delegation of authority to the Upper Province, in relation to such eases in which the Governor of Lower Canada shall think, and declare, justice may be more conveniently ad- ministered in this than in the sister Province. If 1 cor- rectly appreciated your Lordships' opinion, it was that you had no jurisdiction excepting over offences particularly spe- citied ii) -he Great Seal Instruments from Lower Canada, and that the general transmission thence of the offenders, (under the general expression introduced into those docu- ments,) for trial in the Court of this Province, for all crimes and offences by them heretofore committed in the Indian TerritorieSf was not sufficient to enable you to take cogni- zance of offences not particularly set forth in them. Not wishing to take the persons by surprise against whom I had received informations, although 1 had given a similar inter- pretation in my own nund to the statute, to that which your Lordships' opinion has sanctioned, I had, under the gene- ral words of the instruments, prepared indictments for oft'ences not particularly specified, against a number of per- sons, some of which have been returned by the Grand Jury true bills. I wish, therefore, to enquire of the Court, whe- ther 1 understood its decision correctly, when I consider it to be, that, except for offences particularly specified in the Great Seal instruments against any offender, your Lordships cannot take cognizance, although those documents may transmll the oflender here for trial generally for all offences heretofore by him committed in the Indian Territory ? Chief Justice. — The decision of the Court was a decision intimated to the bar, that this statute ought to receive from us a rigid construction, and that, in so construing it, we felt that it was only over the particular offence specified in the Great Seal Instrument of the Lower Province, that our right of taking cognizance was extended. On looking at the Act, it will in a moment be manifest, that only a special extraordinary jurisdiction is extended to us, the original, or general extraordinary jurisdiction, being given to t' 2 Lower Province; and it is only through the sister Province that we are empowered to exercise any authority under this Act. It is a delegated power which we have to exercise ; and, according to. our view, it extends no farther than to the particular offence specified in the Great Seal Instruments. We do not consider that the Instrument can give us a gene- ral power over the offender cliarged to have eonnnitlcd any particular oftcuce, ihougii it clothes us with every reut. the to the fort, and amongst them that of Governor Sempic ; it was wounded in three places with halls, but there were no marks of lance or spear wounds. Cuthbert Grant came the next day to the fort, with a number of persons, and amongst them the prisoners, Brown and Boucher. I had no great conversation with Grant. He appeared to wish to make it appear like an engagement, and that Mr. Semple's party had commenced it. 1 can not, of my own knowledge, say whether Paul Brown was in the engagement or not, but I was told by several persons that he was not. Some of the persons who came the next day to the fort with Grant, were dressed in clothes which had been worn by some of the people who went out with Mr. Semple. One Lacerte was dressed in the clothes of one of Governor Semple's people. Cuthbert Grant did not tell me that they had any plans for taking the fort, but the next day he told me he must have the fort, and that the people there must go away. I did not sec Mr. M'Leod there, that is at the fort ; but two days after I saw Mr. M'Kenzie there, and Cuthbert Grant met him, and they conversed together ; but as I under- stood very little English, it was only here and there a few words that I made out. Mr. K'Kenzie told the Mctifs that Lord Selkirk was coming with soldiers, and that he had no right to their lands ; that they were theirs. I asked Cuthbert Grant to let me go and help to bury the dead, and he told me I might, that there would be no danger then, but that he must have the fort the next morning, as his young men would wait no longer. I do not recollect the exact words, but that was nearly what he said. Attorney -General. — Did Cuthbert Grant, Paul Brown, or Francois Firmin Boucher, say any thing to you that they had come to Fort Douglas, or to the Red River country, with an intention, to attack it ? Mr. Nolin. — No, neither of them told me that it was for the purpose of attacking it that they had come down. Be- fore this time I know we were in fear of an attack. I know that some I ndians came to the fort, and told us that we were to be attacked ; some of the Indians offered assistance ; they told us that from the appearances at Portage des Prairies, they were apprehensive we should be attacked, and they feared Mr. Semple might be killed, and that they would give us their assistance to protect him. Mr. Semple, how- ever, refused their assistance, not thinking that they would attack us. When Mr. Semple and his party went out, I heard no orders given by him, or any body else, about at- S ,11 ,.< '1 \) % ^m *-H >9ta. 142 lac'kinjj tlil« parly. When they went out, I can not tliink they had any intention of attacking the armed parly at ail events, but I should believe he merely went to see what they wanted, and who they were. "' CrosS'Examinationf conducted by Mr, Sherwood. Mr. No2t».— >I did not see Mr. Scmple's party at the moment they went out, but I saw them at a distance of about three arpents from the fort. They were armed with guns, of which some had bayonets. I have been three years in the service of the Hudson's Bay Company. 1 have heard talk of Mr. Miles M'Donell's Proclamation. Mr. Sherwood. — Do you know of the taking and razing of Fort Gibraltar, and the seizing of the North-West Company's pcmican by the orders of the lute Robert Semple ? Mr. Nolin. — I have heard of pemican being taken, but do not myself know of it. I do know that Fort Gi* braltar was taken, but I can not say that it was by the orders of Mr. Semple, or that it was not. Mr. Sherwood, — Do you know that it was razed down to the ground, the pickets torn up, and the whole floated down in rafts to Fort Douglas, which was Mr. Semple's re- sidence ? Mr, NoZwi.— I know that it was floated down to Fort Douglas. Mr. Sherwood .-'Were there pickets in the raft with it ? Mr. Nolin. — Yes, there were pickets in the raft. I heard that Fort Pembina was taken, but I do not know that it was, for I was not there, but I did hear that it was taken. There were some pieces of cannon in Fort Douglas on the 19th June, but I do not know of any on the other side of the river, nor do I believe there were any. Lacerte passes for a Half-breed, and he was, when he came next day to the fort, in the clothes of some of the party who went with Mr. Semple on the 19th, but I did not see cither of the pri- soners wearing their clothes. I went during the next year with Colonel Coltman to shew him the locality of the battle ground. . i ., - ,». : • . , ..( 143 DEFENCE. ' t »*♦ i Mr. S/wrwood,— -Before we commence our Defence, I would remind the Court, that there had been a desultory argument, relative to which was the actual state of tbia country, or rather, as it was in a state of private war, as to what the effect of this state of warfare would be upon this atfair of the 19th June, supposing for a moment, that it should be clearly proved that the prisoners participated in the quarrel, to the full extent which the ladictmuut charges them to have done; and 1 had then the honour of submitting that, under this state of warfare, that which would be murder here, was not murder there. In arguing from the 43d of the King, I was rather taken by surprise. It v/as urged that the Act made some change in the law ; that, however, is not the case. It makes no change whatever ; I am aware that, in construing Acts of Parliament, the intent of the framers is always to be taken into considera- tion, but we must invariably refer to the words of an Act for its intention, and where they are clear, there is no oc- casion for any other assistance. It is only where ambiguity attends the Act, that it is necessary to call in the aid of explanatory rules, and about this statute there is none, its title is exceedingly clear; its preamble also, and its enacting clauses, equally so. It is simply entitled, " An Act for " extending the Jurisdiction of the Courts of Justice of the " Provinces of Lower and Upper Canada, to the trial and " punishment of persons guilty of crimes and offences within certain parts of North America, adjoining to the said Provinces." Upon referring to the body of the Act, we shall find that these " certain places," are places which, besides being without the limits of these Provinces, or of the jurisdiction of any of their Courts, are also not within the limits of any civil government of the United States of America. So much for the places ; row for the description of, or what is to be understood by, crimes and offences committed in these places. The Act declares that, from and after the passing thereof, " all offences committed within any of the Indian Territories, or parts of America, &c. shall be, and be deemed to be, offences of the same nature, and shall be tried in the same manner, and shall be subject to the same punishment, as if the same had been committed within the Provinces of Lower or Upper Canada." What then, I ask, was the tt it .••\ 141 }': ( state of that country ? It was in a state of war ; If it was not a private war, it must be treason that has been com- mitted ; but we say, and without apprehension of being contradicted, that it was a private war, and had nothing of a treasonable nature in it. As these offences committed in the Indian Territory are, by this Act, declared to be of the same nature as if they were actually committed in the Pro- vince where they are to be tried, I would ask, what, (if by possibility we can contemplate our happy state of tran- quillity being changed into a similar state of conflict to that which has desolated this Indian country), I would ask, what in that case would be the offence committed ? The answer is immediate ; it would he a great riot or contempt ; it would, it must, be this, and nothing more j for it has been so de- cided by the highest authority in the case of the Barons of England: it was the decision of the highest authority, for it was the decision of the Parliam<'nt itself. If all crimes an''>; ncuncd. they must be acquitted. The argument t!k< ' ' Jk.'i upon general principles of law, which are not ahead by the Act of lti03, but extended in their administration by an extra -jurisdiction being given to the Courts of the two Provinces of Canada. Atlorney-Gencral.-'-l beg leave, with respect to the slate of private war which has been drawn into this case, to say, that although it should even be proved to have existed, I consider it as no defence. The charge against the prisoners is :i charge of murder, and is to be tried here, though com- mitted in the Indian Territory, in the very same way that n charge of murder in the Home District would be tried. As to any alteration in the law being introduced by the Act of 1803, my argument was mistaken, if it was supposed that I considered that statute as doing so. 1 never did consider that it was the statute of 1803, which declared the opinion, that in that country there was no law but the law of the strongest, was an erroneous opinion. I never did think that before this Act it, was competent to any person to say, that there was no Court having power to try for offences of the blackest dye, which were committed in that Territory, or that its population were amenable to no law but that of uncontrolled passion. My idea of this Act was, that it was necessary to enable offences committed in the Indian country to be removed to the Provinces of Canada for trial, and having, under its authority, put upon their trial persons charged with offences at which human nature revolts, 1 did not expect that we should be told that what is murder here is not murder at Red lliver, or that a justification was to be set up, founded upon the frequency or extent of the practice. I differ with the Learned Gentleman, and assert that murder in the Indian Territory is the same crime that it is here, and we are not destitute of instances where, under this very Act, the murderer has been tried, convicted, and has received the sentence of death, though it is not yet executed. In that case we did not hear that the country being in a state of private war, presented any palliation of the crime. 1 am, it is true, very ignorant of the nature of this quarrel, but there can be no circumstances connected with it that can justify the taking of the lives of fifteen or twenty persons. 'sons. 147 Or, n«lmit as :i i^'round of def«'iH'<', tliit tlie c here as a witness. He was put into gaol tor debt, by the agents of the Hudson's Bay Company. Their reason for imprison- ing him was, that he was going to desert, or to leave the Province; they had reason to apprehend thai ho was. Ihiive % 152 every reason to believe that he is a very honest man ; his only fault I believe to be, that he is too much given to liquor ; but, except that, I consider him to be a very honest man. The reason for putting him into gaol was, an apprehension Ihat he was going away without settling his accounts, i Know of no other reason. Mr, Hhertvood, — And does that conduct correspond with your idea of a very honest man ? Do you think it is very ho- nest (o be a drunkard, and an t'lsconding, fraudulent debtor ? Mr. Forrest. — I certainly do not call it an honourable trait of character ; but except for his being given to licjuor, and not paying his debts, I ronsidev Blondeau to be a very good and an honest servant. JOHN M' DON ELL, iV//aie, siinrti. Examined hy Mr. .Siikuuoou. Mr. M*DonelL — 1 know Louis lilondeau well. I have known him for upwards often years. He was formerly in my service. I was then belonging to the North-West Com- pany, but do not now. Blondeau lias not the best of cha- racters; he was very much addicted to liijuor, and a man in whom implicit confidence could not be put. 1 would not give hiui implicit belief on his oath ; he was allogelher such a man as 1 would not have in my service if 1 could do with- out him. 1 certainly v.ould not have him in my service if I could dispense with him. From my residence in the interior for a number of years, 1 am well acquainted with the man- ners and customs of the Half-breeds, and they do occasionally paint themselves ; their habits are very like those of the Indians. They mingle constantly with the Savages, and hunt and fish like them ; they are not accustomed to culti- vate the ground, but live generally by the chase. Some of the greatest chiefs are among the Half-breeds. Mr. SItcncood. — 1 would ask you, Sir, is their painting themselves an uncommon thing, or does it indicate an hos- tile disposition — a manifestation of going to war ? Mr. M'Doiiell. — By no means uncommon. I have seen them very generally i)ainted. It is not at all uncommon to see them painted, and is no proof of hostilities being in- tended. I have seen them constantly painting and decorat- ing themselves at their toilets. ('hicj JiLsticv. — The object of this testimony is evident; it is to counteract the eftt'ct that their going disguised and 153 painted might liiive, if it was not an usual practice in that country to do so. Mr. M'Doncll says il is a common prac- tice, and not an indication of any hostile intention. Arc these Halt-breeds like Indians in their manners and cus- toms? or do they attach themselves to the white population ? Are they, Sir, like Indians ? Mr, M'DoneU, — ^The major part are like Indians, and they paint like the Indians. Some of the most [Kiwerful and greatest Chiefs are among the Half-breeds. Mr. Sherwood. — We have heard a great deal about this parly being armed, will you tell us whether that is a com- mon practice in the Indian countries, or is it a necessary precaution ? Mr. M^Doncll. — On any and eviry voyage and journey in that country, some of the servants carry arms, and some- times even the whole of them do, and I consider it necessary that they should do so to defend themselves, and to obtain provisions. Mr. SJiencnod. — How long, Sir, did you reside in that country ? Mr. M'DonelL — 1 have resided there upwards of twenty years. Mr. Sht-nvnod. — And from your ktiowledge of that coun- try, do you consider il necessary tliat the traders with the servants, should carry arms for their personal defence, and for their sub istence ? Mr. M*D(>ifi'll.. — I certainly do, botii for their personal defence, ;ind ns a profection against wild beasts. As means of obtainii!g provisioiis it is absolutely indispensable that they carry arms. I havi; been frequently in danger from wild beasts, and found i?. absolutely indispensable to my personal safety to go ;a'med, Mr. Sherwood. — is it, Sir, an unusual thing in that country, for the Indinii;; and Half-breeds to give what is called " a whoop," or ('o ihcy do it only when they are going to war ? arc there other torts of whoops besides war- whoops ? Mr. M^Donc'L — It is very common to the Indians and Half-breeds to give the whoon, and it is by no means con- fined to their going to buttle. It is habitual to them to do so. T! .; whoop they give on all occasions is like the war-whcop, and is so very common, that hardly two get on horse'*!' 1, without giving a little whoop. Mr. o ; -wood, — Then hearing this wlioou given is not \ J 1 v\M 154 t ;1 an alarming circumstance, a sure presage of war and hos- tilities ? Mr. M*Do»ell. — No, quite the reverse. I have fre- quently given it myself, and if you go into an Indian village, you will hear every boy giving it. Mr. Sherwood. — Will you. Sir, tell us if spears, and bows and arrows, are common arms when the Indians and Half- breeds go on horseback ? Mr. M'Donell. — Spears, and bows and arrows, are as familiar to the Half-breeds and Indians as fowling-pieces are to us. Mr. Sherwood. — Did you. Sir, ever know the Half- breeds and Indians to go on horseback armed with muskets ? Mr. M^DonelL — I never did. I do not believe that muskets are ever carried by the Half-breeds on horseback, but spears constantly are, also bows and arrows. They are the customary arms they carry when riding. Mr. Sherwood. — Did you ever ha,- of the Half-breeds carrying guns and bayonets? I do not ask you whether you ever saw such a thing, but did you ever h<'ar of it ? Mr. M'Dowe//.— Certainly 1 never did hear a report of their riding armed with muskets and bayonets ; indeed 1 consider it as next to an impossibility that they could do so, on the spirited horses that they ride in that country. Cross-Examinai'.un, conducted by the Attouney-Generaj.. Attorney-General. — Did you, Sir, ever see Cuthberl Grant in that country, or was he accustomed to paint him- self like an Indian ? Mr, M'Donell. — I never saw Cuthbert Grant in that country. Attorney- General. — Mr. Grant, I believe, was the son of a Partner of the North-West Con)pany. Did you. Sir, ever see the son of one of the Partners paint himself like .. savage ? Mr. M'Donell. — Yes, I have known many sons of Part- ners paint thcmselvesj it is by no means uncommon at their sports. Attorney-General. — Did you ever see forty or fifty Half- breed ; ••idinr, together and painted, with peaceable inten- tions ? 155 Mr. M'DoneU. — 1 never saw so Iar/?e a party riding to- gether painted. 1 never saw forty or fifty ridinp together. Attorneij-Geuernl. — In what manner do the Half-breeds generally live ? are they not superior in their habits to the Indians ? Mr. M^Dnnell. — X great many live as the Savages do. A few men of them are employed as voyageurs. When the engagds are scarce, they are attached to the parties, and act as servants and canoe-men. Attorney 'General. — When they are so employed, do they paint, and preserve the habits of Indians? Mr. M'Donell. — No, not when they are so employed. Attorney -General. — How long is it. Sir, since you was in the interior ? Mr. M^Doncll.—li was in the year 1814 that I was there. .iMl Mr. JOHN PRlTCHARDy sworn. Examined by Mr. Sherwood. Mr. Sherwood. — Do you, Sir, believe that the prisoner, Mr. Boucher, saved your life on the 19th June by his exer- tions ? Mr, Pritchard. — 1 do believe that the prisoner, Mr. Bou- cher, did save my life on that d.ny ; for had 1 been alone, I believe that one Descliamps would have taken my life. I think now that if Bouclier had not interfered, Deschamps would have killed me. I have no doubt of it. Mr, Sherxcood, — You are acquainted with the hand- writing of the late Robert Semple, 1 presume ; will you look at this letter, and say whether you believe it to be his writing ? Mr. Pritchard. — This letter is in the hand-writing of the hite Governor Semple. The following Letter was then read, upon motion of Mr. Sherwood. Fort Douglan, ]ith April, 18 16. DEAR SIR, I have received your several letters ; but as 1 trust we shall so shortly meet, 1 think it needless to enter upon their contents. There have boon thoughts of removing Fort Daer, but that measure has bfeii postponed. It may be well, however, to bring down the doors uiul window.-!, and whatever moveable parts uur enemies might curry oil. I wish all the stores of the 'W J .4 4. f ^ i^.'k^ 15(i North-\Ve«t Com)>aiiy brought down here. They have seiri-d our goods ill Peace KiTer, and we must try to liavc a few things to balance the account. Mr. M'Leod'8 services will be useful in coming down with the colonists and stores. You know his zeal. St. (icrniain can re* main with a few men, until 1 determine what is to be dune with Pembina. I sliall order the bearer of this to go by the way of the two lower boats, to see in what situation they arc. From his report you will judge of what is necessary to bu done, and act accordingly. The upper boats, 1 understand, are in safety. In other points I trust to your judgment. Do what you think best for the general interest, and rely upon fniding in nic a man who judges from intentions. I am, dear Sir, Yours binccreiy, (Signed) llOBEUT SEMPLE. Mr. John Prilchard, ) Pembina. ) Mr. Sherwood. — The letter, 1 perceive, is addressed to you : pray. Sir, what was your situutiun with the Hudson's Bay Company ut that lime ? Mr, Pritcliard, — 1 can not say that I held any situation with that Company. I was rendering them some services, but without pay or reward. I will, if required, tell how I went to that country. Mr, Slierwood. — It is not necessary. You, i dare say, know Mr. Colin Robertson, and can prove his imnd-writing. Look at this letter, and say if it is in his luuid-writing. Mr. Pritchard, — It is the hand-writing of Mr. Colin Robertson. The following Letter was then read, upon motion of Mr. Sherwood. Gibraltar, 20th May, 18l6. GENTLEMEN, Having heard with pain, that the men under your command were surprised and takon by a superior force of the North-West Company's, 1 beg leave to inform you that every thing here goes on well. We sent oft' Cameron on the 1 Sth for Jack Kiver ; from thence he proceeds to York. Take courage, and endeavour to inspire your men with the same sentiments. I am in possession of the North- West Company's fort, and the Governor has put Fort Douglas in an excellent state of defence, and we are determined to dispute the ground by inches. 157 say, tliig. Mr. i(J. [your tlic [very k'nce the the pncc. Iiii'oriu inc by the bearer the real situation the unfortunate event hns placed you iu ; and take care, in delivering yuur de- spatch to this Indian, that you are not discovered by our op- poneutit. God bless you all. Yours faithfully, (Signed) COLIN ROBERTSON. You may read the letter to your men, and tell them to give no credit to reports of any kind, until you hear from Governor Sempic or myself. (Signed) C. R. Mr, Sherwood.— CoWn Robertson was a very confidential servant of the Hudson's Biiy Company j was not he a very active servant ? Mr. I'ritcJiard.—VLc certainly was un active and confi- dential person, and so esteemed by his employers. Mr. Sherwood. — I perceive Mr. Robertson observes, that he was in possession of the North-West fort. What fort did you understand by that ? the fort from which the letter is dated, "Gibraltar?" Mr. Pritchard.— Yes, I did. Mr, Sherwood. — Who, Sir, was the Mr. Cameron that was sent off on the li5th to Jack River, and from thence to proceed to York ? Mr. Pritchard. — I suppose it was Mr. Duncan Cameron. Mr, Slierwood. — Was he a Partner of the North-West Company, and what was he to go to York for ? York Fort, I presume, on Hudson's Bay j not this town of York, 1 believe ? Mr. Pritchard."^ Jack River is on the route to Hudson's Bay, and Mr. Cameror. was sent there on his way to Europe as a prisoner. Mr. Slierwood. — Do you know the hand-writing of Mr. Miles M'Donell, and is this letter, under date of the 24th January, 1B17, addressed to Cuthbert Grant, in his hand- writing ? Mr. Pritchard. — It is the hand-writing of Mr. M'Donell. Attorney-General. — It can not be read, it is no evidence, nor do I know that it would be in that of Cuthbert Grant even. Mr. Sherwood. — We wish to read it, as shewing the opinion of certain persons relative to this affair of the I9th June, and the Jury might, from the idea of Cuthbert Grant's innocence, make such inferences as they think proper. f I ^1 \ 1 n 1 I ti .#( :t f' ' . I I5H relative to the other persons charj^cd. If, however, the Court is against me, I lio not prci" \Uc l^-tter. TIjc Court intimated that the i'.Jtter w .8 not evidence*. Mr. Pritchard. — I would wish to explain, that in the part of the letter of Mr. S ^mple, in which lie alludes to the North-West Company's stores being brought down to Fort Douglas, and speaks of our goods having been seized, it related to a quantity of furs which had been taken from the Hudson's Bay Company, and conveyed to a North-VVest fort. J^MES TOOMEY, si'r^m. Examined by Mr. Siikuwood. Toomcy. — In the year 1814, 1 was in the Indian Territory, in the Kcd Uiver country, but not at Fort Douglas. 1 know of the Froclamntion of Mr. Miles M'Donell ; 1 saw it stuck up al the gate of Fort Uaer. 1 do not know that it was an • The Letter prudiiccd was tlic following: — Fort Douglas, 'JAl/i January, 1817. SIR, Having found here the Govcmor-in-Chief's Proclamation of the 16th July, 1816, sent you by Mr. Johiistun, oncuf His Majesty's Justices of the Peace, for the purpose of taking up and sending to justice all persons who have committed acts of violence in the country, I consider it my duty to send you now the said Proclamation, being persuaded lliat you will, as a loyal subject, exert yourself to restore order and tranquillity in tne country. Your humane conduct towards the people of the Colony, after the unfor- ldn;:te events of the 19th June last, confirms >rc in the gooa opinion I always entertained of you. The Earl of Selkirk, who has a perfect knowledge of all that took place here this last year, harbours no enmity towards you ; and I feel conndcnt thut he has no intention of commencing a legal pro:>ecution against you. The Partners of the North-West Company, in their discomfiture, endea- vour, by the circulation of falsehood, to conceal the truth ; it is tiiercfore your interest, as well as that of all those under yoi>r orders, to withdraw yourselves immediately from thoie who are certainly driving you to your ruin ; if you will come here, I shall give you a clear insight into all that has taken place till the present time, and I pledge myself you shall be well received, and freely permitted to return in safety when you shall th.ink proper. Your most obedient servant, (Signed) MILLS MACDONELL, Governor. Afr. Cuthlert Grant. I have a parcel containing some articles of clothing, sent by Mr. Daniel M*Kenzie for his so:> Roderick ; I would the young man himself to come here for them; he hai nothing to fear. (Signed) MILES M.\CDONELL. 151) ni.thority t<» seize the provisions of the North-VVest ('om- pany, but it was to prevent them being taken out of that eountry. 1 do know of two trains of pemienn being seized from the North-VVest people. 1 was „!ien in the service of the Hudson's Bay Company, and 1 know that the freemen who supplied the North-VVest Company with pemican had it just ready to start with, and were compelled to put it hack upon the staf^es from which they had loaded the trains. This was done with the approbation of the Hudson's Bay people, and the freemen were forbid to move it, and after- wards it was taken out of their possession by the Hudson's Bay servants. I know also of some boat-loads of pemican beini; taken between Fort Douglas and Brandon-house by the Hudson's Bay people, who were armed with guns which hud bayonets, except perhaps about two or three. There were about twelve or thirteen persons engaged in seixing this quantity of pemican, and they took possession of it by force. The North-VVest Company had been accustomed to be supplied at this place by the freemen as well as the Hudson s Bay people. Attorney-General. — My L iS, the Learned Gentleman, in conducting his Defence, so as to avail himself of the permission given him by your Lordships, should, I think, begin at the other end, and shew, at the moment when this melancholy occurrence took place, that the state of exaspe- rated feeling existed, which he is to trace without interrup- tion to any date he may go back to. If this case is allowed to be pursued, 1 shall deem it necessary to produce evidence to rebut these statements, and exhibit a serious, a most serious, aggravation of this outrage. I shall deem it my duty to shew, though very reluctantly, as unnecessarily ex- tending our enquiries, which I contend ought to be con- fined to the transaction connected with the Indictment; but 1 shall, if this course is pursued, deem it my imperative duty to shew, that a deliberate resolution to destroy this Colony existed as far back 1812, indeed from the very moment of its commencement, and that, in continuance from that time down to the 19th June, when, for a second time, it was destroyed, hostilities were directed against it. That this armed force was not sent for the purpose of their own defence, but manifestly to commit outrages upon the Settlement, we can not, 1 think, have a stronger proof of, nor of the determined hostility exhibited, than by the Gen- tleman beginning his Defence by reference to a measure rendered necessary for the protection of this infant Settle- ment, against the acts of hostility which constantly IMAGE EVALUATION TEST TARGET (MT-3) 4 (./ ^4^ *'• ^'M^i ■6r I/.. 4a 1.0 I.I L25 i 1.4 1.6 Plioto^phic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14SB0 (716) 873-4503 ^^ ^ r ^ 160 I ? U I' J threatened tliem. I have confined my examination of \('itnesses completely to this armed party, and have never left them for one moment, if the Learned Gentleman is per- mitted to pursue the course he has commenced, I must re- but it with testimony that will most seriously aggravate this most afflicting catastrophe. Mr. Sherwood. — I most distinctly stated to your Lordships the line of Defence I proposed to take up, and, till stopped by the Court, I intend to pursue it. 1 stated that I intended to begin with Mr. M'Donell's Proclamation, and I have done so J and I shall go on, proving aggression upon aggres- sion, down to this flagrant one of the 19th June. I have the greatest respect for the abilities of Mr. Attorney- General, but, I humbly conceive, if I began at the other end, I should begin at the wrong end. As to the necessity under which he will be to rebut this testimony by proving earlier aggressions, he may begin as soon as he pleases, and we will go back to very early periods, when the sturdy use of the shillela to these " messieurs voyageurs" was re- commended, if they did not quietly submit to the robberies which were meditated upon their property. We will shew the spirit by which they have been constantly actuated, namely, that of awing us into submission by the free use of the cudgel and shillela upon those «* messieurs voyageurs," as we are contemptuously termed by them on all occasions when they obstruct our progress j and that, if we were more strongly armed, and for once went in a party sufficiently powerful to repeal aggressions, it was forced upon us by those persons who had constantly recommended the free use of the shillela, and not obly recommended^ but practised it too.* ' - v' * Allusion is here made to a letter in Lord Selkirk's own hand-writing, dated Sligo, in Ireland, 18th June, 1812, in which, in the course of the Instructions he gives one of his agents, he strongly recommends, in order •• to teach the messieurs voyageurs to keep a respectful distance, that the •* ahiilela, the proper weapon of the natives of Ireland, should be made a free *' use of." This letter also directs his agents as follows ; " you must give •* them solemn warning, that the land belongs to the Hudson's Bay Company, •• and that they must remove from it; after this warning they should not " be allowed to cut any timber, eitaer for building or fuel ; what they have •' cut should be openly and forcibly seized, and their houses destroyed. In " like manner they should be warned not to fish in your waters, and if " they put down nets, seize them as you would in England those of a poacher, *' We are so fully advised of the unimpeachable validity of these rights of " property, that there can be no scruple of enforcing th£m, wherever you " have the physical means" — Thus early were instructions given, which, as so evidently appears in the course of these trials, have been acted upon, wherever they had the physical means, and to the spirit of which every measure of the Hudson's Bay people, and of Lord Selkirk's agents, may be traced. ^^* 'iL-0*^'' IGl ■give ?any, not I hare In ad if \fcker. [Its of tfOU ^pon, jsure Mr. Livius Shenoood. — ^The course, my Lords, that we have taken, is precisely that which we had the honour of submitting to your Lordsliips, and received your permission to pursue. We say that the object of the Proclamation of Miles M*r)onell was to deprive us of the means of sub- sistence, and that, not being disposed voluntarily to ac* quiescc in so arbitrary a course, and one as unwarrantable as arbitrary, we were continually attacked, and robbed of our provisions, after we had bought them ; as well as de- prived of the means of obtaining them, by the freemen and hunters being prohibited to trade with us. We shall go and prove that there was no other place but up this river that we could obtain the necessary supplies for our trade, and that we had always been accustomed to receive them here, and supply the traders who came from below. We shall prove that, in numerous instances, we were exposed fo starvation by the robberies committed upon us, and that it became Indispensable to our subsistence, that we should send with our provisions a force capable of protecting them 5 that the usual channel of communication by the river being closed against us, we were compelled to go by land, thus accounting at once for our being armed on horseback, and in such numbers. We shall then go farther, and shew all these circumstances forced upon us by the conduct of the servants of the Hudson's Bay Company, and the settlers of the Colony : that we were, whilst anxiously avoiding all ap- proach to them, attacked by them on the 19th June again ; and they came to us after we had passed by them ; and we contend, that although lives were lost in the affray, those who took them were not murderers. We consider that we have begun at the right end of our case. We trust also that the Court will permit us to prosecute it in the manner we have chalked out, and till stopped by your Lordships, we shall not hesitate in our course, from an apprehension of tlie Attorney-General's rebutting our testiuiony. Chief Justice. — It certainly never was the intention of thn Court to allow, on the one side or the other, former aggression to be brought forward as justifying aggression subsequently committed. Wr thought it riglit, under tlie circumstances of t e case, to allow to be shewn, that from the determined hostility existing between those parties, la a country uncontrolled by any law, there was reasonable cause for either to apprehend, that wherever they met, the weaker would have to give way to the stronger party, and that therefore measures of unusual precaution were resorted M 162 m- 1 1 . < 'f :i .,:( «: to. It appeared to me and my Brothers, that the object of the Defence was to shew, that when this horrible event took effect, it resulted from one armed party, perhaps armed under unusual circumstances, being followed by another, who having arms at their command took them, and v/ent out, (as they say,) merely to watch the movements of the mounted parly, being apprehensive, from accounts which they had received, that this party came to act in a hostile manner to the Settlement. In the state of mutual exasperation ex- isting between them, murder ensued. It appeared to us to be fair to let it be shewn to the Jury by the Crown, that riding armed in numbers was not an usual practice, and that therefore they might be afraid for the Colony's safety, after the information they had received. On the other hand, as it was allowed to the Crown to shew what they could to sustain the setting out of this party with an hostile intention, it was thought to be fair to admit evidence that, owing to the constant aggressions whi«h were committed in the attacks upon the property and persons of the traders belonging to these rival Companies, it was necessary to pro- tect their provisions by an armed escort. There was also another reason for allowing the Defence to go back, and prove, or rather trace, the irritations which existed, under the limitation of shewing a continued and unabated state of exasperated feeling, without cessation, for that time which the law or a Jury would consider necessary for the passions to cool, because, unless they were permitted to do so, the prisoners had not a fair opportunity of proving that which might, in the minds of the Jury, soften the crime whereof they are accused, to manslauglitcr. Jf a continued irritation is attempted to be sustained, it must be ktpt up without in- terruption, and if at any moment it was perhaps diminished, yet that fresh aggression and outrage not only prevented it from completely cooling, but rekindled all the angry passions, ard again brought into pL'iy all the hateful feelings by vhich both parties appear to have been actuated towards eacl) other. Solicitor-General. — There is one observation made by your Lordship, which I would solicit permission to advert to, I before understood it to be the opinion of the Court, that it was not only necessary to prove that irritation had existed and was kept up, (which it might be so unjustifiably £.s to form the very spirit of the crime of which the prisoners are accused,) but liuit there was no opportunity for it to cool, 1 think that they ought not to be permitted to ■ 163 shew that, owing to a number of slight circumstances, it was probable tliat irritation might exist, but that the force of them should be so powerful that it was impossible to control the passions. Chief Justice. — And a slight circumstance of aggression in itself, if often repeated, might have that effect 1 believe the judgment of the Court is perfectly understood} there- tore let the trial go on. issions the hich ereof de by advert Court, )n had fiably ioners it to cd to HUGH SWORDS, sworn. Examined by Mr. Livius Sherwood. Swords. — I was formerly, and in the year 1814, in the service of the Hudson's Bay Company, at the Red River 'ountry, being sent out therefrom Ireland by the Earl of Selkirk's agent. I can not say that I read, but I heard of a Proclamation issued by Miles M'Donell. I do not know that it forbade the sale of pemican by the hunters to the North- West Company, for I was not able to read the Pro- clamation. I know of a boat-load of pemican being seized by the Hudson's Bay people. It contained a quantity of ninety-six or ninety-seven sacks of pemican, of about ninety pounds each. I was one of the party sent to seize it by Mr. Miles M'Donell, and the party who went were all armed, with military guns, some with bayonets, and we had ammu- nition, consisting of ball-cartridge, served out to us before we went to seize it. I know that a camp was formed on the Asslniboin River, and cannon were planted to prevent the North-VVest canoes from f oing down, and that this was dont" by the orders of Mr. Miles M'Donell. On this river the trade of the country is carried on. Pemican is the meat of the builalo mixed with grease, and forms the general food of the traders of the country ; and if the North-West traders could not get provisions from here, (the Red River country), it was impossible they could carry on their trade, ;;s they defjcnded on a supply from here for other posts. Cross-examined by the Solicitor-General. with Solicitor-General, — Do you not always take arms you, when you go out in that country ? Swords. — No; sometimes I have been out in the Red River country without arms, but we generally take them. Solicitor-General. — Was there any thing so particular in your taking arms when you went out at the time you have m2 ■I .< ii\ 164 m 'J'V been speukiiig ol, tliat you should so particularly recol- lect it ? Swords. — I know tiiat at tliut time we were served out with arms, and fixed ammunition ; with muskets and bayonets, and ball-cartridge. 1 can not say that all had them, but I know that I had. 1 never was a settler. I was a servant to the Hudson's Bay Company, and was stationed at Red River. I left their service, because I did not think I was well treated by them, and that I could better my con- dition. Solicitor-General. — Do you know any thing of the re- moval of guns from the oovernor's house at the Colony, to the North-West post in that neighbourhood, or of other private property belonging to the residents ? Sworda. — No, I do not. I heard afterwards that they were moved, but I did not see them moved. Solicitor-General. — Did you never receive any money from Mr. Cameron, Mr. M'Leod, or persons belonging to their party, for your conduct ? Swords. — The Gentlemen were good enough to give me twenty pounds i'orucr ought in g in the canoes from Red River to Fort William, and to Montreal. Re-examined by Mr. hivivs Sherwood. Swords. — It was in May, 1814, that the pemican was taken. It was taken from the lodge of one Poitras. The Hudson's Bay people were trained to the use of arms, but I do not know for what purpose. They had been exercised some months before the pemican was taken. It was not in a boat, but about a good cargo for a boat that we took, and delivered to Mr. Miles M'Doncll, Before setting off, I and the others of the party were called up before the house of Mr. Miles M'Donell, and told we were going in search of provisions, which it was expected the North-West people were sending down the river ; and if we found any, we were to take it by surprise if we could, and if not, by force, but we were to take it in any way. Not finding any, that day, we encamped, and Mr. M'Donell joined us the next day. Mr. M'Donell had a field-piece with him, and a number of men armed, and the cannon was placed so as to command the river. When before Mr. M'Donell's house, I was pro- mised, that if we took provisions I should have four pounds, and others were promised two pounds^ and some different sums. Mr. L. Sluricood. — Well, go on with your story. 165 Chief Justice. -^There Is no occasion ; we have the fact, that it was taken and delivered to Mr. Miles M'Donell. It can be of no consequence how it was taken. It is evident they went prepared to take it by force, if it was not given up quietly. Mr. L. Sherwood. — I will then only put one more ques- tion. Had Mr. M'Dunell any want of provisions at that time? Swords. — Mr. M'Donell could not be in great want of provisions, for it was fishing season. JVILLUM WALLACE, sworn. Examined by Mr. Sherwood. Wallace, — I have a knowledge of the Proclamation of 1814, by Mr. Miles Me a servant of thq JIudson's Bay Company, r »' : ;( 166 Mr. Shenuood. — What did Wallace, Swords, yourself, and the other servants, call Mr. Miles M'Donell ? Pinkman. — We always called him Governor, all the servants did. In May 1814, 1 was sent from the Red River Forks to go, with some others, to Portage des Prairies, and from there we went to Brandon- house. Mr. Spencer, whose orders we were under, went to the North-West Fort near that place, and asked fortheir provisions, their pemican. I did not go myself with Mr. Spencer to tlie North-West Fort. A few days afterwards, an answer was hrought to a letter which had been sent from Mr. Spencer to Mr. Miles M'Donell, and we went to their fort. It was shut, and the gates were locked. Wc cut down the pickets, and got in that way, and then took the pemican and grease, and dried meat. There were about five hundred bags of pemican, and twenty-six kegs of grease, and some dried meat. Some of the bags were larger than others, but 1 dare say they might weigh about ninety pounds a-piece. Mr. Shenuood. — That would be something mere, than twenty tons, a pretty good prize, besides the grease and dried meat. Do you know of the Assiniboin River being blockaded, so as to prevent the North-West Company from bringing their provisions by the channel of this river ? Pinkman. — 1 do know that cannon were placed on the banks, to prevent the boats passing that belonged to the North-West Company. I know the North-West Company have a great number of forts and posts, and that there is no other way to go to a good many of them, than down the River Assiniboin. i! ( Cross-Examination, conducted by the Attornky-Geneual. Attorney-General. — Pray, who went with you ? who was at the head of the party ? Pinkman. — Mr. Spencer was our master. A Mr. House also went, and three more, and 1. There were only two and I, making altogether five. AttorneymGeneral. — You perhaps do not know that Mr. Spencer went with a warrant as a Sherifl^ or to make some proposals about the provisions? Pinkman. — I do not. I only know we went, and he was our master. Mr. Sherwood, — If it is pretended there was any autho- rity of that kind, we are prepared to resist its legality. | 107 tliought, with the Governor all these mock Oflicers had beea given up. Attorney-General. — To any remarks of that kind I do not think it necessary to make any reply. I have neither given up or maintained the legality of the powers exercised by the Hudson's Bity Company. On the abstract charge of murder, at present before your Lordships, I do not conceive 1 have any thing to do with them or their Charter. It was only merely as to a fact I asked the witness ; whether he knew in what capacity Mr. Spencer went ; when he told me that he did not, 1 was satisfied. Do you know how many men were in the fort at the time you went there ? P'mkman. — I do not know positively ; but I think about ten were in the fort, at the time we got in. Attorney-General. — And you were fivej did they make any resistance to you ? Pinkman. — No, except that they refused to open the gate, and we cut the pickets, and got in that way. Attorney -General. — Did you serve out your time regu» larly and fully in the service of the Hudson's Hay Company? Pinkman. — Yes, I did. 1 served my time quite out, and tlien left them. Attorney-General, — Do you know William Wallace ? did he serve his time out, or did he desert whilst under a con- tract of service ? Pinkman. — 1 know Wallace, and that he served his first contract out, for I saw it. He made another for a year, which I believe he did not serve out. I heard he did not, but that he left for bad treatment he received. Attorney-General.'— Yo\x know Hugh Swords, did he break his contract ? Pinkman. — 1 do not know whether he did or did not. *,|., TOUSSAINT FAUDRIE, sivorn. fas Iho- l Examined through the Intepreter, I / Mr. Baldwin. Vaudrie. — I know the Indian Territory well. I have re- sided in it upwards of thirty years. I know that the North- West Company were trading there when I first went, and have continued to do so as long as 1 have been there. They traded there before I wenf, but I can not say for how long. On the lied River and Assiniboin, I know that they traded long before the Hudson's Bay people j the Hudson's Bay 168 ?f^ hill- tr.'idcrs have not been long in the habit of trading on thosf? rivers ; only a few years. I know by hearsay, and only in that way, of the Proclamation of Mr. Miles M'Donell. I know that in the year 1S14, a quantity of pemican and dried meat was seized from the North-West Company's post on the River la Souris, because I was there at the time. it was taken by the Hudson's Bay people out of a large hangardf (store,) and amounted to full four hundred bags; there must have been between four and five hundred bags, perhaps full five hundred, taken away. Mr. Spencer came to the fort, and knocked at the gate, asking to be admitted into the fort in the name of the King, and that all the pe- mican, dried meat, and grease, should be given up to hini. Mr. Pritchard, who had charge of the post, refused to admit him, and took me, as a witness, that he did so. He asked Mr. Spencer to wait a little while, which he did, and shortly Mr. Pritchard put a small billet through the pickets to Mr. Spencer, who took it, read it, {wibtess beiug here asked if he knew the contents oj the note^ replied^ I do not), and answered, " that will not satisfy me," and again de- manded to be let in, which Mr. Pritchard again refused. Upon this refusal the pickets were cut down with an axe, and the party, headed by Mr. Spencer, entered. They asked where the provisions were kept, and Mr. Pritchard told them they might find them. They then went to the store, of which they broke otF the lock, for it was locked up, and they opened it by drawing the staples and breaking the Jock; they took possession of the provisions, consisting of upwards of four hundred bags of pemican, a number of bar- rels of grease, and a quantity of dried meat, which after- wards was all taken away by them. J was then in the service of the North-West Company, and at the fort on River la Souris at the time, and saw it taken away to the Hudson's Bay fort on the other side of the river. Mr. Baldwin. — How long have you lived in the Iridian country ? Vaudrie. — I have lived there upwards of thirty years. Mr, Baldwin, — Did you ever see any vestiges or remains of old French forts in that country ? Vaudrie, — I have seen several very old ones. Mr. Baldioin. — Do you know that they were frequented by the traders in the time of the French government ? Vaudrie. — I have heard a very old man, who lives there, say that the Red River country was traded to in the time of tiie French government. 109 Mr. Baldwin. — Do you know of similar remains of forta on the Swm River, which is fartlier north than Red River ? Vaudrie.'—l do not. 1 never was at Swan River. Mr. Btddwin. — Do you know which is the most northern post which the French traders had ? Vmidrie. — 1 can not say any thing about it, for I have lived, the whole thirty years I have been in the Indian Terri- tory, in the Red River country. 1 was never out of it, but to come below. 1 never went higher up than Red River. Mr. Baldwin. — And when you first went to Red River, the Hudson's Bay people did not trade there, but the North-West Company did ? Vaudrie. — Ves, the North-VVcst people did frequent there, but the Hudson's Bay people have only come these few years back. Cross-Examination i conducted by the Soucitor-Genf.ral. Vaudrie. — 1 do not know If Cuthbert Grant can read, or if the Half-breeds generally do read. I know one Half- breed who can read. DONALD MCDONALD, sworn. Examined by Mr. SHERVfooii, McDonald. — I was formerly a servant to the Hudson's Bay Company, but was not in 1810, at the time of the battle. We have no occasion for great guns in the chase. 1 do not know if our people learned the use of great guns. I did not act as a cannonier. Michael Heden acted as such; but I have helped to carry cannon from Red River to differ- ent places. 1 know they were, in 1814, placed on the banks of River la Souris, to prevent the people belonging to the North-West Company from going down the river. I also know that cannon were planted at the Forks of Red and Assiniboin Rivers, for the same purpose ; and at the time they were placed there, Mr. M'Donell said they were to prevent the North-West from going down. 1 know that some of the people were taken at Turtle Lake, and I saw two chests of fire-arms brought to the fort, which it was said had been taken from the North-West Company. In the year 1814, Mr. M'Donell did not want provisions, he had plenty. 1 believe the Proclamation of Mr. M'Donell forbade the hunting of buffalo. The Half-breeds were very 170 much dissatisfied with thi<«, as their unly mcins of living i» by hunting and fishing. Indeed, some time they have nothing to live on hut what they hcnt, ns you cannot always fish. The winters in that country are n)uch longer and colder than they are in Lower Canada. The buffalo urc consequently very poor, and not fit to eat in the spring. I do not know exactly what the order of Mr. M'Donell was, but I know the Buis-brules were very much offended at it. ii\ MARTIN JORDAN, noovn. Examined hy Mr. Livius Sherwood. Jordan. — In the year 18 14 I was in tlic service of the Hudson's Bay Company, and canie out hy way of Hudson's Bay. 1 was stationed at the l-'orks of the Red River, which are formed l)y the River Assiniboin falling into the Red River. The place was in possession of Mr. Miles M'Donell. 1 know that cannon were placed there by his orders, for I assisted in placing them, i know also of the Proclamation issued by Mr. M'Donell, and the cannon were placed for the purpose of enforcing the Proclamation, and preventing the North-West Company from taking provisions down the river in their canoes and boats. 1 was ordered by the Governor from Hudson's Bay, Governor Auld, to obey Mr. M'Donell, and he directed me to help to put the cannon there, and to assist in stopping the boats. I was present when provisions taken from the North-West Company were put into the store at our fort. I was to have been one to have taken it, but the party 'that set out afterwards divided into several, and the provisions did not happen to tome my way, so it was taken by another party. I was at Fort Gibraltar when a quantity of small arms were taken by our people from the North- West Company, and carried to our fort. I know of Air. M'Donell's order for prevent- ing the hunting of the buffalo, and that the Half-breeds, Indians, and North- West people were very dissatisfied with it. I understood that the Hudson's 13ay people were not very well pleased with it. I was present at the taking of Fort Gibraltar. Before we went to take it, I was called in by Mr. Robertson to his house, and asked if I would like to know a secret, and I said I did not know but I would. He then told me he was going that night to seize on the Fort belonging to the North-West, called Gibraltar^ and asked me if 1 would like to go. I m 171 8ai(l yes, 1 would have no objecUoii. Sliorllv after we i'l'll in, and mnrchcd up to the fort, and took it. This happened in March. VVe kept possession of it for thrte months, and then it was destroyed. We, who had taken it, stood iti defence of it, not wishing it to be pulled down, but Governor Seniple insisted upon its being de- stroyed, and t(rok Mr. Robertson and me prisoners, because we opposed it. AI! the materials that could be, were floated down to the Hudson's Bay Fort, and those that could not, were burned, as I understand, a few days before the battle. I can not positively say that it was just before the battle, because I was not at it; but it was the beginning of June that the fort was destroyed, as 1 believe. 1 was never but once before under arms myself, and then it wai to way-lay the North -West people at Portage des Prairies, a few days before Fort Gibraltar was taken. I was on that occasion with Mr. Semple, but the provisions that were stopped were taken by Mr. Robertson. Cannon were pre- pared, and horses were kept ready to tackle, if there should be occasion. The settlers, as well as the servants, were exercised and trained to the use of arms ; and on the day we went to take Fort Gibraltar, we fell into the ranks like soldiers. Mr. L. Sliencooih — It appears by your statement, thai Governor Semple always kept you prepared to receive the North-West people, any time they might happen to be passing ? Jordan. — Yes, we were always in a state of readiness to receive them any time they came. Mr. L. Shenvond — Wiiat did you understand to be the object of your, or the people generally, being trained to the use of arms ? Jordan. — I undorstofid that it was to stop the North- VVest trade by force of arms. I heard the Governor and -Mr. Robertson say, that he woidd stop their boats by force of men and arms. I never heard any orders that we were to fire upon them, but that the trade should be stopped, and the navigation, and that the men should be taken pri- soners. 1 did not, very soon after the battle, see any of the Hudson's Bay people. I did some time afterwards, but I did not enquire who fired first. 1 heard them talk generally of the battle, but not as to who fired first ; but in flying reports, I heard that the Hudson's Bay people did, \ I .r ,1 172 Mr. L. S/jerwood.— Pray, was Mr. Holte in charge at any place ? Jordan. — No, Mr. Holte was not in charge any where. m Cross-ExaminatioJij conducted by the Attorney-General. Attorney-General. — You mentioned that you was once under anus to way-lay the people belonging to the North- West Company ; will you tell us what orders were given you on that occasion, or why you think that was the object of your learning the use of arms ? Jordan. — We set out determined not to come back with- out satisfaction. Our orders were, to get all the North- VVest property we coulf?, and it we got it, that it should never be let return again. Attorney-General. — Did you happen to have heard of the destruction of property at Brandon-house, and that the property belonging to a Mr. Fidler (his own private pro- perty), had been just before destroyed, and taken by the peo le you were expected to meet ? Jordan. — I had certainly heard that Brandon-house had been pillaged, and that a little property belonging to Mr. Fidler had been destroyed. Attorney-General. — Do you happen to know whether Mr. Fidler had been in charge, or lived at Brandon- house, some time before Fort Gibraltar was destroyed ? Jordan. — I believe that before the fort was destroyed, Mr. Fidler had lived at Brandon-house. Mr, L. Sherwood. — Do you not know that the Colonists fired upon tlie Half-breeds in the year 1815 ? Attorney-General. — If, my Lord, the witness is permitted by the Court to answer that question, I shall have to shew that in 1815, and long before that period, there had been firing upon the Colonists. Chief Justice. — It appears to me to be not only irregular, but idle, to desire to go into evidence upon the subject. Enough has been shewn on either side, to prove that the ob- ject with each party was to harass the other, and in so doing, that they were in such bad bipod as to be dispp^ed almost tq exterminate each other. ]t 173 Here the Grand Jury entered the Court, and returned a true Bill of Indictment (Appendix J.) against "\ as Principals, for stealingnine / pieces of cannon belonging >to the Earl of Selkirk, at \ Red River, on the 3d April, George Campbell, John Coopkr, and Hugh Benneuman, Jl81i AND BuNCAN Cameron, John Dougald Cutubeht G William Shaw Pbter Pang MERON, -\ ALD Cameron, # 3lRA^T, s FiAW, and I SMAN, J as Accessaries before and after the Fact, The return being made, the Trial proceeded. ATSITOINE LA POINTE, sworn. Examined by Mr. Sherwood, through the Interpreter. La Pointe. — I have resided fifteen years in the Indian Territory. 1 know tliat Fort Gibraltar was taken by the Hudson's Bay people, for I was in it when it was taken; being then, as I am now, and have been for fifteen years, in the service of the North-Wcst Company. It was a parly headed by Mr. Colin Robertson who came to take it, and he is, as 1 believe, a servant of the Hudson's Bay Company. 1 take him to be a servant of that Company, because he always staid at their fort. I was not at Fort Gibraltar when it was pulled down, and sent to the Hudson's Bay Fort. I know that before Fort Gibraltar was taken, cannon had been" placed at the Forks to prevent our i)coplo from passing up and down the river. 1 know also that Mr. Miles M'Donell gave orders to prevent the Half-bieeds and others from hunting buffalo. Mr. Sherwood. — Ask him, Mr. Smith, if he knows whether the Indians and Bois-brules were contented or satisfied that they might not hunt on their own ground. (The question being put in French by the Interpreter, was answered by the ivitness, " lis n'etoient pas trop contens,** which Mr. Smith translated,) they were not overploased : they were dissatisfied. Mr. Sherwood, — That is not near so forcible an expres- I m \ •'* M ■Ml V 174 sron a.«? the one made use of by the witness. Your Lord- slii[).s will, I doubt not*, notice the answers of La Pointe to my question. ** lis n'^toient pas trop conlens," a very strong and forcible expression in the French language, remarkably forcible; at least going the length of absolute aversion. But I have no doubt your Lordships will re- member the expression, as shewing that the order was never assented to, but, on the reverse, created great discontent. (Jhief Justice. — We have been told so twenty times. La Pointe. — 1 was not at the Frog Plains on the 19tli June, but I was at Portage des Prairies when the Half- breeds set off to go to Frog Plains. I heard th^r orders glvcu ; they were to go to Frog Plains with a quantity of provisions to meet the canoes that were expected daily from Montreal and Fort William. This was the only object cf their going, and I know of no other orders being give i when they started. They took two carts loaded with pro- visions. They were ordered to keep very far away frorxi Fort Douglas. They came to Portage des Prairies in boats and canoes, but did not keep on in them, because they knew the Colonists would stop them at the fort, and take their provisions from them, and the directions they received was, to go as far from the fort as possible, to avoid being seen t>/ the Colonists. Mr. Slierwood. — We have heard a great deal about this party being painted and disfigured, and their going in a war- like array. I wish to know how Cuthbert Grant, who is represented to have been their leader, was dressed ? La Pointe. — Cuthbert Grant was dressed quite in ihe ordinary way, much as I am at present. Mr. Slierwood. — Was he painted or disguised at all ? La Pointe. — No, he was not. Mr. Sherwood. — Was there any preparation of a warlike kind, or any more than is ordinary to a party going through the country ? La Pointe. — I saw nothing of any preparation, beyond what is usual to a party riding through the country. Mr. Sherwood. — Do yoji believe they intended to quietly past Fort Douglas, if they were allowed to do so? La Pointe. — I do think they would have passed it peaceably. Mr. Sherwood. — Why do you believe so ? La Pointe. — It was their intention, and they told their employers (bourgeois) that they would, when directed to puss at a distance. g« 175 Mr. Sherwood.— 'Do the Indians and Half-breeds only paint when they are going to war, or on other occasions, or IS it a sign of war ? La Pointe. — It is their custom to paint on different oc- casions. It is not a sign of war at all. Mr. Sherwood. — You have told us that you saw carts at the starting of the party from Portage des Prairies : did you see any cannon in them, or what did you see in them? La Pointe. — I am quite sure that there were no cannon in them, nor any thing except provisions, (faureaKo;*.) Mr, Sherwood. — Was there any way by water from Portage des Prairies to the Frog Plains, except that by Fort Douglas ? La Pointe. — ^There was not, and they could not go that way for fear of being stopped. Mr, Sherwood. — And witness, on his oath, believes they intended to pass Fort Douglas peaceably, if they had been permitted ? La Pointe. — Assur^ment, je le crois. Sur mon serment, je le crois. Certainly, 1 believe it. Upon my oath, I believe it. Mr. Shencood. — Why do you believe it ? La Pointe. — Parceqn'ils Vont promis a lews Bourgeois, Because they promised their masters they would. Mr. Sherwood. — A better ground for believing it could not be had, as is well known to those acquainted with the respect these people pay to their employers. Cross- Examinaiiony conducted by the Attorney-General. Attorney-General. — What quantity of provisions were taken, and how many carts were sent to carry them ? La Pointe. — There were thirty bags put into the carts. Three carts went with it. Attorney-General. — Do you know whether any, and what part, of these provisions was brought from Qui Appelle ? La Pointe. — I do not know whether any was brought or not. Attorney-General. — Do you know, or do you not know, that the greater part of tlie pemican at Portage des Prairies, had been taken a short time before by the North-West people from Mr. Pambrun ? * Taitremix ib the name given to the bags of pemican, which are made of bufTalo hides. ..:f )- ill lli. i [\^ ^ ,-\t M 17fi La Pointe. — No, I do not know that it had. Jttoruey-General. — Who was it that, at Portage dC9 Prairies, told the people to take the provisions, and gave them no other directions than to avoid the fort ? La Poinfe. — It was our employers that said so. I staid at Portage des Prairies. I staid there about seven or eight days, and then all the things went down to the Grand Portage. The Bois-brulcs were not generally painted when they set out. I did not hear of an attack being intended to be made on the fort, or that it was proposed to starve out the Settlement. JEAN BAPTISTE ROY, sxxwn. Examined by Mr. Sherwood, by Interjrreter. Roy. — I was not upon the battle ground upon the lOtli June, but at my own place, which is about a league distant. i have lived there about twelve years. In the month of March, I was at Fort Gibraltar, when it was taken by the Hudson's Bay people. I was there upon a visit, and not as a. servant, for I am a freeman. They came about eight or nine o'clock at night, and made prisoners of a number of the residents. I do not know how the prisoners were treated, for I went away directly. I had not far to go to my own place, only just across the river. I went to Fort Gibraltar afterwards, and was present when the people belonging to the North- West Company were sent away. They were sent oft' by the Hudson's Bay people. J. B. BRJNCONIEHj sworn. Examined by Mr. SiJeiuvood, by Interpreter. Branconier. — I know that Fort Gibraltar, situated no;.T the Forks of Red River, was taken by the Hudson's Bay people. I was there at the time, in the service of the North- West Company, and was wounded by one of the party wlio took the fort, but 1 am not sure by whom. The conduct of this party, who took possession of the fort, and wounded ir.e, was violent and outrageous, beyond any thing I ever witnessed ; so mucii so, that I was afraid we should be all murdered by them ; they put pistols to our heads, and threatened to blow our brains outj indeed all manner of violence and outrage was committed. I was taken to Hud- son's Buy, but not as a prisoner, and from there, after 'i 177 stopping a long time, I was sent to England by Mr. Ro- bertson. •O'^i/jli r»t ■j'.iUii'h.rl fi Mr. Sherwood.-— Do you know for what reason you was sent to England ? Branconier. — No, I do not ; I understood it was some- thing about Mr. Cameron, but I do not know, I did not go willingly. I was liberated the moment I got to Eng- land. I never heard ai.y thing there of any prosecution. Mr, Sherwood. — Do you kno\y any thing about Fort Douglas having afterwards been taken ? Branconier.— 'No ; I was gone before that happened. The Hon. Wm. B. COLTMAN, sworn. Examined by Mr. Sherwood. Mr. Coltman. — I last year proceeded into the Indian country as far back as Red River. I left Montreal in the month of May, at the time the traders generally proceed to the interior. The authority under which, as well as the ob- jects for which, our journey was undertaken, (for I was ac- companied by" my colleague,) are pretty fully set forth in the Proclamation of His Royal Highness the Prince Regent, notifying the appointment of myself and Mr. Fletcher as Commissioners, (see Appendix Q.) Mr. Sherwood. — In the course of your official duties, I presume. Sir, you must have had communication with the class of persons known in the Indian Territories by the ap- pellation of Bois-brul^s or Half-breeds. Will you. Sir, be so good as to tell us what character and rank they hold in society ; wliether they are considered as Indians, or as white people ; wliat is their disposition generally, or what station do they fill ? Mr. Coltman. — I have certainly had occasion to see the Half-breeds or Bois-brules, as they are generally cailed in that country ; but it is a question rather difficult to answer, to what class they particularly belong. The Half-breeds are of various kinds, but all the progeny of Indian women, living with their mothers, but varying in character, informa- tion, and manners, according to the peculiar circumstances in which they may have been placed with reference to edu- cation, and numerous particulars. Some have been sent to Montreal for education, and some even to England. 1 believe these are not very far removed from white men j but the advantages they have enjoyed are so various, that they i- A' .) i r m < \ . II ji*. ■\ 'll .1 ■llh ' fl ^ i , I .i 178 may be considered as filling every link, from the character of pure Indians to that of cultivated men ; and I had occasion to communicate with Half-breeds of very different classes, in the performance of my official duties. I was accom- panied to the battle-ground of the 19th June by some of the Half-breeds. I should wish, however, to be permitted to relate my design in going. An investigation into that melancholy occurrence certainly formed a leading object of my enquiries. Upon my arrival at Red River it ap- peared, from the representations made by numerous per- sons, that great doubt existed as to who were the assailants, whilst, from every representation, the degree of culpability attaching itself to different individuals, impressed my mind very difftrently. The information generally corresponded, though from various persons, in the accounts of the numbers that were engaged, as also of those that fell in the conflict on both sides, viz. that of the Half-breed party there were about sixty or seventy on the Plains, and that one servant only was killed, whilst the party of Mr. Semple had con- sisted of about twenty-five or six, of whom nearly the whole lost their lives. I wished very much to obtain correct in- formation as to who were the assailants, that the degree of culpability in this unfortunate occurrence might be ascer- tained. Considering it my first duty to get information on that point, I did go with a party of Half-breeds to visit the scene of this melancholy affray. 1 saw at that time the impriession of carriage-wheels ; the impressions were faint, but I did see them, and they were pointed out to me as marking the route of the party on the 19th June. Mr, Sherwood. — Did any of the Hudson's Bay people accompany you to the Plains ? Mr. Coltman. — Mr. Nolin and Captain De Lorimier, I believe, joined me from Fort Douglas. (Mr. Sherwood produced a diagram of the scene of action, with its vicinity, and also shewing the route by which the Half-breed party passed, which was handed to Mr. Colt- man, and his opinion being asked as to its correctness ge- nerally), Mr. Coltman. — ^The diagram appears to me to be perfectly correct as to the ground where the battle was fought, and also of the vicinity ; but I can not speak so positively as to the track marked as taken by the horsemen and carts. (During the time that Mr. Coltman was examining the plan presented by Mr. Sherwood, the Crown Officers had been f I W' X . >l 1711 occupied at another, which had also been sketched on tliC spot, by a gentleman connected with the Hudson's Bay Company). Mr. Sherwood, — Did the parties agree ns to the route taken ? Mr. Coltman. — ^They did generally, but not entirely so. (Mr. Sherwood intimated that he had no objection to Mr. Coltman's receiving the second diagram at the present moment, and comparing them, as, if there was any dlflference between them, he could point it out, and decide which was a correct one, so that it might go to the Jury for their in- formation. Mr. Coltman declared that he considered the sketches, as far as the ground plans were concerned, correct. Relative to the track of the carts, and the route of the horsemen, in which the two plans did not precisely agree, Mr. Coltman declined speaking positively, stating his diffi- culty to arise from its being in very dry weather that he visited the spot, whereas he understood it to have been completely mire at the time of the party passing on the 19th June). Mr. Coifman.— The Half-breeds told me when on the spot, that there was a swamp at the back of the road, in which their horses were up to their bellies, and that there- fore they were obliged, on the 19th June, to take that route which is marked on this plan, (that of Mr. Sherwood). The other side told me very nearly the same, as far as I recollect ; but if the Court will excuse me while I look for my Minutes of Mr. Nolin's observations, I may perhaps shew the difference. (Mr. Coltman, having looked among his papers for a short time, said he could not find his note of Mr. Nolin's remarks). But my impression is, that he told me that the Indians informed him shortly after, and that he, as 1 understood him, believed them, that they went as far from the fort as the road would allow. (After some remarks, in the nature of a conversation, be- tween the Gentlemen engaged in examining the diagrams *, * For the more perfect elucidation of the important points connected with thig part of the enquiry,^ the reader is referred to the following AfHdavits, sworn before Mr. Coltman on the spot : I. One of Mr. William Smith, Under-sheriflF of the Western District of Upper Canada, recording the Commissioners* visit to the battle ground, &c. II. One of Mr. Peter Fidler, the person employed on behalf of Lord Selkirk to survey it III. One by J. B. Fountaine and Frangois Bono, who were with the Half* breeds' party, invalidating Mr. Fidler's statement. n2 Hi*:. 180 the Court retired for !i few minutes ; upon resuming their seats, Mr. Coltman not having returned, it was under- I. Provinces or "1 Record of a visit to the route whereby I^owER AND Upper Canada, > the Metifs or Half-breeds, and others, AND Indian Territories. J proceeded past Fort Douglas, near the Forks of the Red River, to the Grenouilliere, at the computed distance of five miles and a half from the said fort, on the nineteenth day of June, 1816, and of that by which a portion of the said parties returned from the said Grenouilliere to the spot where the fatal rencontre took place between them and the colonists living near Fort Douglas, under the command of Governor Semple, made this tenth day of July, 1817, by the Honourable William Bachelor Coltman, Esquire, one of His Majesty's F.xccutive council for the Province of Lower Canada, Lieutenant-Colonel in His Majesty's Indian Department, one of His Majesty's Justices of the Peace for the Western District of Upper Canada, and one of the Special Commissioners for en- quiring into the crimes and offences committed in the Indian Territories ; and a deputation of the Mdtifs or Half-breeds, accompanied by Messieurs Simon M'Gillivray and Pierre de Rocheblave, Esquires, and Mr. William Smith, Under-sheriff of the Western District of Upper Canada, and joined on the route by Chevalier de Lorimier, Esquire, Captain in His Majesty's Indian Department, and Mr. Louis Nolin, Interpreter. The said parties proceeded from the Forks along the highway running S. S. W. three miles or there- abouts ; the guide there halted, and declared that the Mdtifs or Half-breeds and others left the road hereto pursue their route, intherear of thefort,to the Grenouilliere, with horses and two carts laden with provisions, and that their orders were to keep as far back as the swamp would permit. Fort Douglas bearing N. E. distant about three miles, and the Grenouilliere N. N. £. distant about eight miles. The guide then proceeded in a N. by E. direction, along faint tracks of horses and cart-wheels one mile, where the guide said was a swamp on the said nineteenth day of June, 1816, although now dry, from the uncommon drought of the summer, then on one quarter of a mile to another swamp, then half a mile to another swamp, then one quarter of a mile to another swamp, then about two miles to the rear of Fort Douglas, bearing S. E. distance about two miles and a half, then half a mile to a swamp, then three quarters of a mile to a gully; this the guide said was belly-deep to the horses, and that one of the horses gave out here, and was left behind : then on one quarter of a mile, to where the party were, joined by Captain De Lorimier and Interpreter Nolin. Here Mr. Nolin said he first saw from Fort Douglas the Motifs or Half-breeds and others on their route, in rear of the fort towards the Grenouilliere, on the said nineteenth day of June, 1816; but that they had been previously seen by others with a spy-glass. Fort Douglas bearing from this S.S.E. distance, since accurately measured, two miles one furlong and forty yards; then on in a N.E. by E. direction, two miles or thereabouts, to a swamp; then one quarter of a mile to the highway near the Grenouilliere, Fort Douglas bear- ing S.W. distant about four miles and a half. Here the guide said the ad- vanced party let loose their horses, which they had scarcdy effected, when one Battoche, a Half-breed, on horseback, came up from the rear where the carts still were, and said that Governor Semple, with a party of armed men, had marched out of the fort, and were coming towards them ; that the advanced party immediately returned up along the highway, about half a mile to a point of wood ; here the guide said they saw Governor Semple and his party about half a mile distant behind a copse of underwood, when a shot was fired; but, if fired at them, the distance was too great to reach the said Half-breeds : that the said Half-breeds and others then ad- ISI stood tlic Crown Officers would cross- examine Itim after- ward s.) vanced within jjun-shot of them, dividing into two parties, advancing one on each flank of Governor Semple and his party. From this position they sent one Boucher, on horseback, to demand what Governor Seinple's inten- tion W'is in pursuing them ; after some conversation. Governor Semple seized hold of the bridle of the said Boucher's horse, and ordered his men to fire ; Fort Douglas bearing S. distance, since accurately measured, one mile, seven furlongs, and one hundred and two yards. Here the conflict commenced, and continued to a point of wood where a field-piece was posted, and which had burnt priming several times, distant about half a mile. Here the guide said the conflict ended ; Fort Douglas bearing S.E. over a point of wood which conceals it from view; distance, since accurately measured, one mile, one furlong, and eighteen yards. From this point the field-piece was taken back into the fort. At the request of the Honourable William Bachelor Coltman, Esquire, one of the Special Commissioners, &c. &c. &c. 1 have signed this record, at the Forks of Red River, this 14th July, 1817. (Signed) Wm. SMITH. Sworn, at the Forks of Red River, this fifteenth day of July, 1817, before me, (Signed) W. B. COLTMAN. Provinces of 1 'ZK AND Upper Canada, >r JD Indian Territories. J t II. Deposition or Peter Fidler, before Lower and Upper Canada, >mc, William Bachelor Coltman, one of AND Indian Territories. J the Special Commissioners for enquiring into crimes committed in the Indian Territories, and one of His Majesty's Justices of the Peace, for the Western District of Upper Canada. ■ Peter Fidler being duly sworn, deposeth, that on or about the twentieth day of July last, he went in company with one Antoine Ducharme and two other assistants, namely, one Antoine Paye and one La Branche, to survey the route by which the Half-breeds and other servants of the North-West Company proceeded towards Frog Plain, on the 19th day of June, 1816, which track was pointed out by tlie said Antoine Ducharme, who stated, that on that occasion he had conducted one of the two carts which were loaded with provisions, and accompanied the servants of the North- West Company. That the said Ducharme first conducted the deponent along the cart-road that leads from the Forks towards the passage of the Assiniboin River, to a spot a little beyond Catfish Creek, from which deponent ob- served that Sturgeon Creek or River was distant about two miles, the road bearing south 69° west. That the deponent was informed by the said Ducharme, that the Half-breeds had come along the said road from Sturgeon River, and at the place aforesaid, near Catfish Cre--k, had turned to the left across the Plain. That deponent accordingly commenced his survey at the place aforesaid, taking the bearings with a good surveyor's compass, and measured the distances with a line, of which deponent tried the length im- mediately before and after the survey, and thereby found the courses and distances along the said track, from Catfish Creek to Frog Plain, to be as follows: — I ). » mti, J l> I* ]Wlhi u ./ ! k 182 NICHOLAS DUCHARMEy morn. Examined by Mr. Sherwood, by Interpreter. Ducharme, — I know that the battle between the North- West people and Mr. Semple's, was fought upon the 19th i i !»-:;f" k .'/ Courses. Distances. N. :)4°£.— 32 chains. At 10 chains cross Catiish Creek. At 21 chains cross a cart-track, trendbg north-westerly. At 32 chains a bush of willows, from whence Fort Douglas bore N. 59° E. N. 27" £.—194 cluins; At 41 chains a grassy swale, (sometimes incoirectly called a swamp, but which may be passed, without difficulty, at any day, however wet,) two chains across. At 61 chains a low bottom, 50 yards wide. At 70 chains along a narrow swale, close on the left, about 50 yards wide, (rending N. W. about half a mile long. At 102 chains, in which cross a swale, SCO yards wide. At l.'K) chains bushes of willows, extending about 100 yards on the left, and nearly to the Assiniboin River; on the right a low bottom . At 145 chains, and cross a cart-track going towards Brandon-house. At 180 chains low ground, perhaps at times rather wet. At 1 92 chains bushes of willows. At 194 chains a high bush of willows. From this spot observed Fort Douglas to bear S. 85** E. then N. 37° £.—214 chains. At 80 chains Fort Douglas, at right angles with the road we go. At 130 chains low ground, 4 chains across, and perhaps 6 or 8 chains to the right and left. At 210 chains Seven-Oaks Creek, and cross it near the scene of the massacre. N. 47' £.^75 chains. At 55 chains a swale of I chain across. At 75 chains a deep creek, and here join the great cart-road from the Forks to the Frog Plain. N. 12° £. — 75 chains. At 2 chains a creek. At 27 chains a small point of woods. At 75 chains arrive at the Frog Plains. That this deponent hath drawn a Plan of the said route, and the ground about the same, which Plan he hath signed, and which accompanies this de- position. That the said Plan hath been drawn so as to exhibit the said route in exact conformity to the information of the said Ducharme, and hath a correct scale, whereby the bearings and distances of the said route, at its diiferent points from Fort Douglas, may be seen vrith precision. That if the said Half-breeds, and other servants of the North-West Company, had thought fit to pass at a greater distance from Fort Douglas than the said route, there was no natural or other impediment to prevent it. That the Sound was, and is, equally passable for horses and carriages at any distance, )m half a league to half a dozen leagues back of the fort, as in the route chosen by the said Half-breeds and other servants of the North- West Com- pany, and would have afforded, any where within the said distance, a road «asy and without obstructions. That the said route passes at one place within less than a mile and a half of Fort Douglas, from whence there were no trees, nor other object, to interrupt the view, the ground being clear and level. That the place where Governor Scmple was stated to nave been killed, and whereon this deponent hath himself seen some remains of the slain several months ago, was withiu less than two miles of the fort, and was not 183 June, 1816. i know Paul Bruwn, (he pointed him mi at tlie bar)y and he was not in that battle. 1 was encamped more than half the distance to which the haliitationn uf the Kttlers extended down the river, but was, in fact, considerably above the centre of the Set- tlement, along the road followed by the said Governor Semple. (Signed) PETER FIDLER. Sworn, at Red River, this 4th day of August, 1817, before me, (Signed) W. B. COLTMAN. had distance, ke route (st Com- aroad lie place Ire were (ear and jre been Jthe slain ■was not 111. PaoviNces or ^ Baptistc Lafontainc and Lower and Upper Canada, > ss. FRAN901S Bono, of Red River, in AND Indian Territories. J the Indian Territories, being duly sworn on the Holy Evangelists, depose and say, that on the I9tli day of June, one thousand eight hundred and sixteen, tne Half-breeds or Bruits, and others, in charge of provisions for the North-West Company, left the road usually travelled between the Forks of Red River and the River la Souris, at the usual crossing place at Sturgeon River, for the purpose of conveying the said provisions to Frog Flam through the meadows. That the said Half-breeds and others were induced to leave the main road by a desire to avoid any meeting with the persons in charge of Fort Douglas, having pre- viously received orders to that effect ; and that the said Half-breeds and others did not at any time, while crossing from Sturgeon River to the Gre- uouilliere, on the said nineteenth day of June, approach, to the best of their knowledge, nearer than three miles to the said fort. That the said Half- breeds and others did not on that day molest any settler or other person be- longing to the Colony at Red River, till their arrival at the Grenouilliere, and afterwards returning, as Governor Semple was discovered approaching with an armed party, apparently in a hostile manner. And these deponents further say, that they are all well acquainted with the ground where the unhappy contest took place, between the said Governor Semple and party and the said Half-breeds, and that Fort Douglas is not visible from any part of the ground on which the same was fought, being distant therefrom, as deponents think, at least two miles, and concealed from view by a point of woods. That the persons who conducted the carts with the said pro- visions were Paul Brown and one Faignant, Half-breeds, and that a per- son of the name of Ducharme, represented to these deponents to have been guide to Mr. Peter Fidler, in taking a survey of the said route, was not with the said party of Half-breeds, having been left at Portage des Prairies, with other persons, in charge of Mr. Alexander M*Donell, as the said Lafontaine well knows, and the said Francois Bono verily believes; and that the route of the said Half-breeds, as laid down in a plan which de- ponents have seen of the said Mr. Fidler, is not correct. And these de- ponents further say, that previous to the said nineteenth day of June, tliey had heard of the North-West Company's fort or trading-post at the Forks of Red River aforesaid, having been taken by force of arms, and destroyed bv the servants of the Hudson's Bay Company, or the Earl of Selkirk; and that the hostile disposition shewn by the colonists and per- sons in the employ of the said Earl of Selkirk, or of the Hudson's Bay Com- pany, towards the said Half-breeds and persons employed generally by the North-West Company, was the cause of their having left the main road, on their route towards the Grenouilliere, in order to avoid them. And the suid deponents further say, that the prisoners taken at at the Grenouilliere ! 184 below the Frog Plains, to meet the people who were to coiTie there, and in going I met Paul Hrovvn, who had just arrived with a cart and a load ot provisions. The firing continued some time after 1 met Brown, and he was with me all the time till it was completely over, and I an) there- fore sure that he was not in the battle. Cross-ExaminaiioHf conducted by the Aitoknky-Generai,. Attorney-General. — How many Bois-brules did you see arrive at first ? Ducharme. — There were only two Boia-bruli's arrived at first. They came about sun-set. The large party came about dusk in the evening. It was utter the buttle, for 1 did not see the party of Bois-brules till after the battle at the Plains. Attorney-General. — Did you see any of the Colonists prisoners at the plains ? Ducharme. -—l did see some of them at Frog Plains, but I do not know if they were prisoners or not. 1 did not see Cuthbert Grant, but I did see Boucher after the battle. Attorney-General. — Had you any conversation with him about the battle at that time ? Ducharme. — No, I had not ; I only saw him. Chief Justice. — Where were you at the time of the firing ? Ducharme. — I was encamped below the Frog Plains. Chief Justice. — How came you to meet Brown ? had been captured previous to their arrival, and that there were killed on their tide one Batochc, and Joseph Trottier severely wounded , and that three horses were also killed. And the said Baptiste Lafontaine further saith, that the causes of the greater number of the English Colonists killed, were, that they kept together in a body, whilst the Half-brecds kept jump- ing about, throwing themselves down whilst loading, or the tnemy point- ing upon them, and were scattered over the ground to a much greater extent than the Colonists. That the deponent never heard quarter asked by any of the Colonists, but that, on the contrary, they continued firing as long as any of them were standing. And the said deponent, Francois Bono, further saith, that being fallen from his horse, he was not present at the battle. And the said deponents further declare, that they can not write, and having the above deposition read in the French language, persist therein as truth. Sa (Signed) JEAN BAPTISTE X LAFONTAINE. Marque. Sa (Signed) FRANCOIS x BONO. Marque. Sworn, at the Forks of Red River, 30M August, 1817, hffore me, (Signed) W. B. COLTMAN. 185 Dudiarme. — 1 hud heard before thul llie parly were coming, and 1 had guiie up aloiif; the river to meet therti, and there 1 met Puul Brown, the prisoner, and we staid to- gether till utter the firing was over. .i ...:;/( miii Mr, Colt SI \ n, bting in Court j was then croas-examincd b\f i/te ArrOHNBY-GKNUKAI.. t Attorney'General. — W jmise lis no iving |fmy led to It will lence which has been adduced on tliis very important trial, and which, from the peculiarity of the circumstances of the case, has branched out, and exhibited a series of evidence, such as I believe never before was produced, or allowed, in a Court of Justice, upon a direct charge of murder ; but the nature of the Charge and of the Defence, perhaps rendered it unavoidable. The evidence altogether, however, amounts to this. Here are two Trading Companies, carrying on a com- merce with the Indians to the westward of this Province, the one for so long a time, and so extensively, as to have almost acquired, or amounted to, an exclusive possession, or a supposed exclusive right. In this trade they are in- terrupted by the other Company, who said that they had the exclusive right. Thus, as might naturally be expected, difficulty arose between the two, and in the prosecution of hostilities, they were actuated evidently by a disposition to destroy each other. This, I think it is evident, has been proved to have been determined by the one and the other. Relative to the particular charge before you, the charge against Boucher and Brown, it has been proved, that on the 19tU June, 1816, the day on which the homicide is charged to have taken place, the settlers of the Carl of Selkirk, and servants under the Hudson's Bay Company, were, from certain reports which had been brought to them, apprehensive of an attack from the Half- breeds, who have been described to you as the bastards of white men, their mothers being Indians, and they the illegitimate offspring of French and English traders, belonging alike to the North-West and Hudson's Bay Companies. On the 19th June, it is necessary to re- collect, according to the evidence, that they expected the Half-breeds to come. From what particular circumstance they were led to expect them on this day, does not appear, but it is manifest that they were expected. They did come, .'i pf 190 I > but not to the fort. It is in evidence, that they passed by the fort, and went on towards the river. When they were first seen, notice was given by a man from a watch-tower, a watch having been constantly kept for some time, in conse- quence of their apprehensions, raised by the reports that prevailed. These persons, the Half-breeds, did not pass quite near the fort, nor so far from it as to pass the Settlement, which continued for a space of two or three miles. Michael Heden, the first witness on the part of the Crown, gives this account of the circumstance. He begins his evidence by stating that he was a blacksmith, and resided, in the year 1816, at the Red River Settlement ; that he had lived there three or four years previous to the montti of June in that year, and was there on the day on which the Indictment alleges the offence to have been committed. He goes on to depose, that he knew Mr. Semple, usually known by them as Governor Semple ; that the Settlement was warned by the freemen and Indians, as early as March, i.hat an attack was intended to be made during the sumiutr, to destroy the Settlement. Fort Douglas, the residence of Mr. Semple, he describes to be on the Red River, and the Settlement be- low it, some little distance, and extending from a quarter of a mile to three miles. In consequence of the warning which they received, a look-out was constantly kept, and on the 19th June, 1816, the pcison on watch, at about six or seven o'clock in the evening, announced that a party of armed horsemen, with two carts, were approaching. Mr. Semple, it appears, went to ascertain what was the cause of the alarm, and ordered some of his people to follow him with their arms, for the purpose, in the words of the witnesses, of seeing " what these fellows wanted." They obeyed him to the number of about twenty, but had not gone far, when they were met by some women and children, crying that the Half-breeds were coming with carts and cannon, and that they had taken prisoners some of the persons belonging to ' im t a . *•- 197 iny V ry gte I at- -1(1 procec -'d on the Settlement. It does nut appear tha tention was given to this ; but after they about a mile, when they met more, who confirmed t e re* port of the women, with reference to the cannon, Mr. Semple sent back a person, who was produced before you, to fetch a piece of ordnance from the fort. Mr. Semple and his party proceeded on, and the Indians and Half-breeds gallopped up, and dividing themselves into two parties, sur- rounded the others, by forming a line in the shape of a half- circle. One of them, who has been sworn to be Francois Firmin Boucher, one of the prisoners, came up to Mr. Semple, and asked, " what do you want ?" to which Mr. Semple replied, by asking, "what do you want?" Boucher answered, " we want our fortj" Mr. Semple said, " go to your fortj" to which Boucher replied, " you damned ** rascal, you have destroyed our fort." Upon this Mr. Semple seized his bridle, and it may, Gentlemen, be worthy of your remark, that he called at the same time to some of his people to make him prisoner. The evidence of Heden goes on to state, that Boucher then slid off his horse, on the other side to that where the witness stood; that he im- mediately heard a shot, which came from the Indians' party, and almost instantaneously a second from the same direction. By the first, witness deposes, (hat a Mr. Holte, belonging to their party, was killed ; and by the second^ Mr. Semple fell, and then told his men to take care of themselves. It was given in evidence, that Mr. Holte's gun went off by accident, some time before their coming up with, or being met by, the party of Half-breeds; and this wit- ness swears positively, that, with the exception of this ac- cidental discharge of Mr. Holte^s gun, the two shots he spoke of, were the first that were fired; and he distinctly alleged that they were discharged by the other party. Dur- ing the conversation between Mr. Semple and Boucher, he had his face directed towards tlic semicircle of the Indians J.V 11)8 and Half-breeds, who were armed with guns, spears, tomahawks, and bows and arrows. Boucher did not fire, to the witness's knowledge, nor did Mr. Semple give any orders to his people how to behave. He states also, that he saw some Indians in blankets at the battle, but they did not firej that he heard, at the time of forming the half-moon or senaicircle, the war-whoop given ; he afterwards heard the wounded men of the Colony crying for mercy. Mr. Semple was shot in the shoulder. Witness with some others made their escape, by running towards the river, and were pur- sued by six, who fired at tliem, ;ind the surgeon fell j and while the Half-breeds were killing him, the others got across the river. He saw the body of Mr. Semple, with nine others, brought in by the native Indians ; the body was full of wounds of spears *. The next day the Half-breeds came to the fort, and Mr. M'Donell capitulated wilh them, that is to say, with Cuthbert Grant, whom he also swears he saw in the battle with the party by whom Mr. Semple and the other persons had been killed. That Grant acknowledged to witness that he had fired the day before, and warned him not to come again to the fort. He also swears most posi- tively, that Paul Brown, one of the prisoners, whom he identifies, came to his tent, andsaid he had killed six English- men, and that he should be the seventh, and that he would take his life before he left the tent. Witness understood by the six men, those of the party who had been killed the day before in the battle. That the prisoner presented a pistol to his breast, but was prevented shooting him by a woman. * The Learned Judge appears to have omitted in his Charge to the Jury» to remark the contradiction which appeared in the evidence, relative to the state of Mr. Semple's body. The witnesses for the Crown directly contradict each other, Hedcn swearing that his body was so full of spcar-woundt, that he could not see whether there were any ball-holes or not ; — M'Coy, that he was wounded in the thigh and the arm ; — Corcoran, that one of his arms and thighs were broken, and a musket-ball had gone in at his throat ; — and Nolin, that he was wounded in three places with balls, but there tv-^ "»•• - -—•■' '^^'•Sl.- hf i li >" ■M' t ' .A r 208 neral tendency, and the particular points shall be adverted to by me in the course of my observations. The testimony on the one side and on the other, is almost all from the servants of the contending parties, and differs in almost every material fact. The very first which presents itself is, who fired first ? One swears peremptorily that it came from the Half-breeds, and gives you his reasons for so swearing ; also proving, as far as his testimony can prove it, that, by this shot, and another from the same party which instantaneously followed, a Mr. Holte and Mr. Semple were killed. On the other hand, it has been sworn to with equal positiveness, that when they saw each other in the field, Boucher, oneof the prisoners, from his speak- ing some English, was sent from the party of Half-breeds to enquire what the Hudson's Bay people, or Settlers, wanted ; and they say positively, that the Englishf or Go- vernor Semple's party, fired first. It may be proper, at the present moment, to notice an argument that has been insisted upon, relative to the crime charged against the persons named in the Indictment. It has been contended, by the Counsel for the Defence, that this melancholy affair, ending in the death of twenty- two persons, ought not to be considered as murder, but as a great trespass, the country being, from peculiar cir- cumstances, in a condition which put its inhabitants out of the ordinary protection of the law ; the individuals forming these two great Companies, together with their servants, being in a state of hostility towards each other, and by their mutual acts of violence, forming a state of affairs similar to that of the ancient nobles and their adherents, dur- ing the contests of the Barons under the feudal system. But, Gentlemen, happily we do not live under the feudal system; those days of discord and confusion have passed, and with them, those constructions of law applicable only to such 209 ;e an the nent. :nce, nty- but cir- iit of ning nts, heir ilar dur- em. ludal and ucli a state of affairs. Another circumstance worthy of your ob- servation, is the mode by which you acquire the jurisdiction, and its nature. Although this Province had no jurisdiction till given by the statute of the 43d of the King, upon which the Indictment is founded, over olfcnces committed in what is called the Indian Territory, yet that Act completely establishes the power, under the provisions contained therein, and which have been strictly attended to in the case before you j the Instruments under the Great Seal of the Lower Province having been given in evidence j and in addition to giving the jurisdictioii, it provides for the ex- ercise of it, in the same manner in every particular, as if the oftence had been actually committed within the district where the trial is held. What is crime here, is crflne in those Western Territories J what constitutes murder here, constitutes murder there; and the offence is to be ascer- tained in the same way, and if convicted of any offence, then the offender is to receive the same punishment, as if committed here, in the Home District. Then, Gentlemen, you are called upon to consider this a crime charged against the prisoners, (though committed neither in the Provinces of Upper or Lower Canada, and without the limits of any civilized government of the United States of America), in precisely the same manner as though it had been committed actually within the Home District. Tiie first point to satisfy yourselves upon will be, that the persons charged are in fact killed. Upon tliat part of the subject you can, I imagine, entertain no doubt. Various witnesses detail to you that they saw the corpses, and assisted in burying them. There can then be no reasonable doubt of the homicide having been committed, indeed none at all. The next consideration will be, by whom was it perpetrated, and, with regard to the prisoners, how they are severally affected by the evidence produced on both sides. Relative to Paul 'i"1 X? s'li m 1^ i li ^ V it' 11^ h\ i 210 Brown, there appears, I think, no evidence against him, but that which arises from his own folly on the next day, as de- tailed in the testimony given by Michael Heden, the first witness examined on the part of the prosecution : he swears, you will remember, that, on that day Brown came into his tent, and presented a pistol at him, saying in the Cree language, " that he had killed six Englishmen, and that he *' should be the seventh ;" and witness says, that he did suppose that he meant in the affray the day before. Ex- cepting this witness, there is none, I think, that gives any testimony affecting Brown j whilst, on the other hand, it is sworn positively, by witnesses who were in company with him at the time of the firing, that he was not in the battle. I think, from the unsuspicious evidence of the Canadian who was examined, (Ducharme), it is manifest that he went below the scene of action, for that witness states, that he himself was encamped a short distance below the Frog Plains, and that^ on hearing the first firing, he went op, and saw Brown, who had just arrived with the cart of provisions of which he had charge ; a circumstance which would be likely to keep him away from the battle. Indeed there are two who swear positively, that he was not on the battle- ground ; and there is only one circumstance, (which cer- tainly, if you credit the witness, arose entirely from him- self), that makes against Brown, namely, what passed in Heden's tent. No one swearing that they saw him on the ground at the time of the battle, and two shewing a positive alibi, I think you will have no difficulty in saying, (as I think it perfectly clear), that the prisoner Paul Brown, was not on the ground at the time of the battle, and conse- quently could not have perpetrated the crime. With re- ference to Boucher, it is certainly equally clear, that he was ?here, and you are to examine what share he took in the proceedings. The commencement clearly was not with M 211 him J they, that Is his party, whatever might have been their original motive, or real intention, in coming to this part of the country, had certainly, at the moment when the unfortunate Mr. Semple marched out, (under perhaps an idea that he had authority fur any measure he might adopt, or perhaps with a view to ascertain the object of an armed force, and toaflbrd protection to the Settlement, which had become apprehensive from the reports of an intended attack), the Bois-brulds* party had certainly given no offence, nor offered any insult. Their having been perceived passing the fort at a distance, led Mr. Semple to direct some twenty men to follow him, to see what these fellows wanted. Boucher, from the evidenceof several of the witnesses, advanced towards Mr. Semple, and the testimony as to what passed is this : Boucher enquired of Mr. Semple, " what do you want?" who rejoined, "what do you want?" The answer was, " our fort." To this Mr. Semple replied, " go to your '* fort," Boucher then said, " you damned rascal, you *' have destroyed our fort." Up to this time there does not appear to have been any act of violence j the language was certainly violent, and calculated to provoke. Those who were near to Mr. Semple at this time represent that, at this moment, he took hold of tho. bridle of Boucher's horse, and of the butt of his gun ; upon which Boucher slid off his horse on the opposite side, and made his escape. This forms the whole of the evidence against Boucher, as far as relates to the 19th June. On the 20th, he is proved to have been among those who went to the fort, so that the evidence, as to his being one of the party, is complete. Before convicting the prisoner for being guilty of murder, you must be satisfied of the malice prepense of his mind ; and it is necessary that I inform you that, where it does not clearly appear so as to be capable of open and direct proof, the law always supposes it to exist ; it takes the circum- v2 A - H 212 stance of ptrncnce os a proof, and puts it upon the person charged to clear himself from the allegation, by proving; circumstances which alleviate t!ie offence to manslaughter, or render it justifiable homicide. Thus, though there is nu evidence that Boucher tuck any part in the battle, and certainly none that he killed any body, yet, if he came up there with an ill intention, then the law considers him guilty. It is, therefore, not to be wondered at, that the extraordinary line of defence which has been taken by the Counsel for the prisoners, should have been adopted. When the evidence was first gone into, an extraordinary latitude was given, from the very peculiar nature of the whole case. Ordinarily, when a person is charged with murder, to diminish or alleviate the offence to manslaughler, the accused must shew such an immediate impression of mind, arising from aggravation, that, in its exasperated state, it was incapable of conlroul, and that there was no interval suQiciciit to allow the mind to cool from the effect of the provocation. In the case before you, a long chain of circumstances have been gone into, to prove the exas- perated state of mind in which the servants of these two great Companies were, owing to mutual and continual attacks upon each other's persons and property; a stale of mind which, it is contended by the prisoners' Counsel, was continually kept up by uninterrupted aggressions ; and it is thus they account for what, in a civilized country, would in itself be sufficient proof of a criminal intention. They stated, and endeavoured to satisfy you by evidence, that the reason for their riding in what might be considered as in armed array, was merely to protect their persons and pro- perty from attacks which they apprehended would be made upon them ; and they state that this apprehension arose from the circumstance of their having been previously at- tacked, and ihcir provisions and property taken from thenw 213 arose yat- JCHA. The North-West Company, it lias hern slatpd, are th** masters of an immense number of servants of dld'errnt (1«'- scriptions, and carrying on trade over an immense territory, where provisions are not, in many places, able to be ob- tained J and that the Red River country is the place where the buBalo abounds, and from whence, up to this period, they were in the habit of obtaining those supplies from the hunters, which their trade rendered necessary, but which, from the conduct of the Hudson's Bay party, they say, they could not expect for the future; because it is put in evi- dence, if you believe the testimony, that it had been seized, and taken from them, by the servants of the Hudson's Bay Company. The first evidence upon this part of the sub- ject, is a Proclamation of Mr. Miles M'Donell, as Governor of Ossiniboia, and which they state was acted upon, by their pemican being seized. It was insinuated that, if the object was merely to send provisions, they would have been sent in the usual method by water. To rebut this, evidence has been put in to shew that, unless they went by land, from the nature of the country, there was no passage except in view of the fort ; and this they make appear ; indeed it is not attempted to be contradicted. Another circumstance may as well be noticed here, as it accounts perhaps for their being so near the fort at the time they were descried j they state, and give evidence, that a swamp prevented their passing it at any greater distance. The prisoners' Counsel contend upon the whole case which they have made out, that they were apprehensive of being attacked, and of hav- ing those provisions (which they allege it was indispensable should meet the canoes which were expected from Montreal and Fort William) taken from them, and that, therefore, it was only an act of common prudence, or absolute necessity, to send a guard with them ; and they allege, that that was the only reason for their appearing armed. They go farthcfj V I \ J 214 and contend that they have shewn that, though armed, they acted in strict compliance with the orders which had been given by Mr. M'Donell at Qui Appelle, which were, to avoid the Hudson's Bay people, if possible, and to go as far from the fort as practicable. On the other hand, Gen- tlemen, and it is for your consideration to which the truth belongs, it is contended that all this is mere pretence, and that the taking of provisions was merely a pretext to cover what had long been entered into and decided upon, viz. a deliberate plan to destroy this Settlement of the Carl of Selkirk. In support of this position, they have gone into evidence of a large number of Half-breeds and others assem- bling at Qui Appelle, for hostile purposes, and, according to some of the witnesses, they were prepared for aggression by harangues being made to them of an inflammatory na- ture, and by presents being given, and other means calcu- lated to excite them to the commission of aggression. On this. Gentlemen, you are to decide. It is not the Court, but you, who arc to estimate, whether it was really and truly to protect their provisions, and guard themselves from attack, or whether it was, as contended by the prosecution, only an artifice resorted to, to mask the destruction they me- ditated against this infant Settlement ? — Whether this me- lancholy termination resulted from their accidentally meet- ing, whilst both parties were in a state of exasperation, from the mutual aggressions which had been offered,. I do not know : it is for you to determine, from the evidence, who commenced the affray, and what are the circumstances which justify or palliate the conduct of the prisoners. I do not know, nor is it requisite, buc it is my duty to tell you, that if it shall appear to you, from the whole tenor of evi- dence which has been adduced, that, instead of protecting their provisions, and being in a situation to defend them- selves if attacked ; I say, if the tenor of the whole evidence 215 sliall appear to you to demonstrate, that this was a mere pretext, and that, under cover of a justifiable precaution, they did give orders, if the least insult was received from the Hudson's Bay people, they were then to destroy all they could meet — I repeat. Gentlemen, if you believe that this sending of provisions under a strong guard was only a pretext, although orders were not given to the Half-breeds actually to destroy the Settlement, or to commence an attack, unless some insult should be offered, then, Gentle- men, I have no hesitation in saying, it is as much murder as if the slight insult given to Boucher had not been offered. But I do not know that it was the case ; it is >ou who are to judge, it is you who are to say where the weight of tes- timony preponderates ; but I do not think you will find the evidence go that length. The evidence as to the party with whom the firing commenced, is contradictory. The testi- mony on the one hand is, that it began on the side of the Half-breeds. The Hudson's Bay people assign as a reason for going out of Fort Douglas armed, that they had heard reports that they were to be attacked by the Half-breeds, and they swear, some positively, and others to the best of their be- lief that the two first shots, and by which Mr. Semple and a Mr. Holte fell, came from the Half-breeds. If you believe this testimony, Gentlemen, there will bean end to the justi- fication set up by the prisoners' Counsel. If, on the other hand, you believe that the North-West party went armed merely for the purpose of guarding their provisions, which it was indispensable they should send to that part of the Indian Territory, and that upon seeing them approach the Settlement at Red River, this unfortunate Mr. Semple went out with a number of men armed, no matter with what in- tention, whether, as given in evidence, simply to ascertain what the Half-breeds wanted, or by a show of force to frighten them, and thus deter them from the commission of any violence, and on their part intending to commit none, ■v\- 216 yet that from their party the first shot was fired, in point o( fact, the case will certainly be very difTerent. It is, Gentle-i men, for you to construe this differing testimony as you please, and no doubt you will exercise a sound discretion. If these people were inoffensively, and of necessity, going on a lawful business, and had no other intention, I am not prepared to say that Boucher even is guilty. I say nothing of Brown, as there is no proof against him. If, however, you are of opinion that they originally intended to destroy this Settle- ment, and kill those who opposed them, then it is murder, because all the appearance of lawful and necessary avocation, is only a criminal precaution, shewing a deliberate and deep- laid plan to effect the object in view. But if you think that this melancholy scene was produced, perhaps by feelings of Indignation for former oppression, creating apprehensions of present danger, or from any other cause, and the Hudson's Bay people fired first, then I can not say that the others were not justifiable in using their arms to protect them- selves. It is, however, your province, Gentlemen, to decide this point as well as all others. It is the duty of the Court to give you opinions only as to the law applicable to these points. Upon the whole, as to Brown, I think you will have to acquit him, as there is no evidence against him, except what arises from his own folly, in saying he had killed six men. An alibi being positively sworn to, and not con- tradicted by any testimony on tiie part of the prosecution, I do not perceive that the declaration given in evidence can prevent his acquittal. If after due deliberation, you find the charge of murder to be established, then Boucher is, as he is charged in the Indictment, a principal j but he is not so unless you are satisfied of a felonious intention having been proved to exist in his mind, or in the mind of those that sent him. It only remains that v;e consider our jurisdiction, connected with locality, to give us a right to try them under .,■/ 217 'V tlie Act upon which they are indicted. The offence must have been committed out of the limits of this Province i wliether we have a right or not, I declare I am at a loss to decide. Mr. Attorney-General has put in evidence the latitude and longitude of the Frog Plains, but he does not put in evidence, whether this latitude and longitude is with- out or within the boundaries of Upper Canada, and I do not l.now whether from 90" to 100" or 1.00" form the western limit of Upper Canada ; nor do I know whether a place at that longitude, and having 49° or 491° north latitude, U within the Province of Upper Canada or beyond its boun- daries. Attorney- General. — Your Lordships will remember that, by the questions which! put to Colonel Coltman, I ascertained the precise situation of the place in which Mr. Semple was killed J that is, I proved it to be somewhere between 90" and 100° west longitude, nearer, as Mr. Coltman said to 100**, and in 49^ north latitude. I proved it to be at the Forks of Red River, formed by its junction with the Assiniboin, and that it was situated between the River Winnipic and the Lake Manitouba, about twenty miles west of tlie former. I had thus established the situation of the place by immutable boundaries, and I conceive it is for your Lordship to instruct the Jury, whether a place so situate be, or be not, without the Provinces of Upper or Lower Canada, and part of the Indian Territories. This 1 conceive to be matter of law, and not matter of fact, deducible from Treaties, Acts of Parliament, and Proclanjiitions ; a point self-evident, and not depending upon extrinsic testimony. Your Lordship sees that the opinion of an illiterate, un- informed man upon this poinf, would have been, in fact, no evidence. Mr. Coltman was the most proper person to in- terrogate on the subject. I therefore ascertained from him the exact 'situation of the locus in quo, and thus laid the I ,1 vM! iiy-^'- 21S» foundation for future discussion, if there appeared to be doubt on the subject of jurisdiction. I also prove by him that, when at the Forks, commissioned to investigate offences that had arisen out of the unhappy differences in that country, he had acted by virtue of his commission as a Magistrate of the Indian Territories, and not as a Justice of either Provinces of Canada : this shewed, at least, his im- pression. I could push him no farther. [ could not, my Lord, ask Mr. Coltman to swear positively on oath respect- ing u matter of opinion, which I have reason to know en- gages at this moment the doubt of many men who have given the matter most serious investigation ; and even if he had, I conceive it would not have been conclusive evi- dence. I have proved the latitude and longitude of the Red jRiver Settlement ; it is for the Court to instruct the Jury, within what territory a place so situated is comprehended by Treaties, or Acts of Parliament, which are matters of pub- lic law; and I have always considered, that if this appeared to the Court to require discussion, they would direct the Jury, if they should find the prisoners guilty, to bring in a Special Verdict, declaring them guilty of murder, at a place situated as I have proved by the witnesses : but whether the said place so situated, be without the limits of the Provinces of Upper or Lower Canada, and of any civil government of the United States of America, and therefore within the jurisdiction of this Court, by virtue of the Great Seal In- strument, produced in evidence, the Jury pray the ndvice of the Court : a Special Verdict would be drawn up in form, and then the question of jurisdiction would come fairly in dis- cussion before the Court upon the facts of locality found by the Jury ; and, of course, guilty, or not guilty, would de- pend upon the decision of that point. ■ Chief Justice.— 'That is what I was about saying. Brown, from there being no evidence against him, must be acquitted. If, on the testimony that has been produced, the Jury shall 219 be of opiDion that the homicide was murder, and that Bou- cher was a principal, present, aiding, helping, abetting, com- forting, assisting, and maintaining, the person who committed the murder, from malice aforethought, in himself, or in those that sent him, and that this lamentable effusion of blood did not arise from a sudden impression on rude and half-savage minds, from seeing their comrades assailed, or from any apprehension of death to themselves, but that it was the result of a felonious intention, then you will find him guilty on a special verdict to this effect : " We find Francis ♦* FirminBoucher guiltyof the murder of Robert Semple. We ** can not see, from any evidence before us, what are the ** limits of Upper Canada ;" then, when the case is made up for argument, it will be set forth that the spot was in about 49^° north latitude, and between 90° and 100® west longi- tude ; and a solemn decision being had upon it, justice will eventually be administered according to the decision. Mr. Sherwood. — I beg leave most humbly, but confi- dently, to submit to your Lordsiups, that the question of j urisdiction is not one of law, but one of fact, and conse- quently one that indubitably, and of right, belong^ to the Jury. In support of this position, I remark, that a plea to jurisdiction can not be pleaded in abatement, for it is a matter of fact ; and all matters of fact belong to the Jury, and it is only matter of law that can be pleaded in abate- ment. If the question of jurisdiction does not go to the Jury, it can be considered no where, as I conceive, or as far as my knowledge extends. I hold in my hand an authority completely in point. Chief Justice. — The Jury may return a general, or a spe- cial verdict, as they think proper. Officers were sworn to the safe-keeping of the Jury dur- ing their deliberations, in the usual form. The Court was then adjourned for one hour ; but before the Judges had left the Court-house, it was intimated that the Jury had * i ■' \ \ iF? ^ u . 220 agreed upon their verdict^ and being called over, they seve- rally answered to their names. Clerk of Assize, — How say you, is Paul Brown, one of the prisoners at the bar, guilty of the felony and murder whereof he stands indicted, or not guilty ? ^ Jorema».-~NOT GUILTY. Clerk of Assize. — How say you, is Francois Firmin Bou- cher, the other prisoner at the bar, guilty of the felony and murder whereof he stands indicted, or not guilty ? Forcwmu.— NOT GUIL'IT, The Verdict was formally recorded, and assented to by the Jury, who were then discharged. Chief Justice. — The Court having knowledge that there are other Indictments against the prisoners, they can not be discharged. The Court was then adjourned until to-morrow morning, nine o'clock. Wednesday, 2Sth October, 1818. PRESENT A3 BEFORE. Attorney -General. — 1 beg leave to mention to your Lord-> ships the situation in which the prisoners Brown and Boucher, who were acquitted yesterday on the charge of murdering Governor Semple, stand at the present moment, as well as some other persons, accused of offences alleged to have been committed in the Indian Territories. The opinion on the question of jurisdiction given by your Lord- ships, as I understand it, is, that by the statute 43d Geo. III. your authority is extended to the trial of every offence particularly specified in the Instruments transmitted under the Great Seal of tlie Province of Lower Canada, but not to the trial of persons described in those Instruments, for all offences committed by them in the Indian Territory, cr for any offence not specifically mentioned. I am the more 2-21 anxious not to misapprehend your LordstiI]>s on this point, as, although sueh was the constructiun i tiad in my own mind given to the Act in question, yet most of the instru- ments being in general terms, transmitting the accused to this Province for trial, not only on the particular charges contained in them, but for all other offences committed by them in the Indian Territories, 1 had prepared Bills of In- dictment against various persons, on informations charging other offences besides thocc: named in the Great Seat Instruments, and had presented them to the Grand Jury, who have returned several of them true bills. Among these, there is one against Cuthbert Grant, Louis Perraulf, and the two prisoners who were acquitted yesterday upon their trial for the murder of Governor Semple, for the mur- der of Alexander M'Lean, which Indictment, indeed, 1 do not conceive subject to the objections taken by the Court on the question of jurisdiction ; for 1 consider the trial of this offence as specially transferred to this Province under the Great Seal Instrument, which char/jcs the prisoners with the " murder of twenty-one men, of whom Governor Semple " was one." The murder of Alexander M'Lean, and the murder of Robert Semple, are, in effect, the same charge, and parts of the same transaction ; but to avoid the many disputes and discussions which might arise, as to the appli- cation of particular parts of the evidence to each individual homicide, and to the guilt of accessaries before and after the fact, I thought it better, that the ends of justice might not be defeated by any nice and technical objections, to charge the murder in various ways. 1 foresaw that several questions might be raised, (some of them not very difficult of decision), from the peculiar circumstances of this melan- choly transaction, and tlio divided jurisdiction which the Court here has over the persons charged with the murder. In a case like the present, where, in a promiscuous firing of one party of men upon another, several persons are slain, it must generally happen, that it cannot be certainly ascertained what particular individual killed any other indi- vidual. Still, however, It is necessary to charge some one peison in partiadar with having killed another; and then the evidence of a general firing, in which the prisoners participated, would make them principals, aiding and abetting the person charged with having inflicted the actual stroke. A foundation must be laid, by a proper and circumstantial charge of murder, against a 'given person, before you can charge others as principals, aiding and i HI 222 abetting, or as accessaries before or after. I thought it better to select Culhbert Grant, as being the leaden of the band by whom the alleged murders were committed, and charge him with having killed Robert Semple, the only one particularly named in the Great Seal Instrument as having been murdered on the 19th of June, and the prisoners Boucher and Brown as principals in the first degree, aiding and abetting Cuthbert Grant in the murder. But, as it might turn not on evidence^ that the proof of the murder of Mr. Semple could not be so unequivocally established as of some others of his unfortunate companions, or Cuthbert Grant might be enabled to prove that some other person than him- self gave the mortal blow, I was desirous of charging the murder in other shapes against the prisoners, and to select the cases to which the evidence would most plainly apply. For mstance, I might be able to prove to the Jury, that one John Rogers, another of the unfortunate persons who perish- ed on the 19th June, received his mortal wound from one Thomas M'Kay j and having thus proved the murder by M'Kay, I might proceed to establish the guilt of the prisoners as principals. But here it might be objected, that 1 could not charge the prisoners as principals, aiding and abetting, in a murder which we had no authority to enquire into, (the murder of Jolm Rogers not being named in the Great Seal Instrument), still less as aiding and abetting Thomas M'K:)y in a murder, whom, if he were present in Court, we cer- tainly could not try, as he is not among the persons over whom we have jurisdiction given us. I need not express any opinion as to the weight of such objections. It was prudent, however, to anticipate them ; and I therefore charged the prisoners, in a third shape, by alleging that a certain person unknown murdered one Alexander M'Lean, another of the suiferers, and that the prisoners were prin- cipals, aiding and assisting in that murder. 1 was aware that no point is now more clear, than that it is only necessary to prove a murder committed, and that, though it should be found, that not the person charged in the Indictment as the actual murderer, but one of those accused as aiding and abetting, or even a person not named in the Indictment, was in truth the murderer, still those aiding and abetting might be convicted on such Indictment : but it might be contended, that this general principle of law was affected by the confined jurisdiction of the Court in these particular cases. I therefore chose to charge the murder in the dif- ferent foims I have nunlioned. The precedents did not 223 warrant me in- joining charges against different persons, for the murder of diiferent persons, in the same Indictment, thougli all was in effect the same transaction. Each murder is a distinct felony, and they could not be joined without producing great confusion in the application of the evidence to the persons charged in the different degrees of aiders, and abettors, and accessaries. I have therefore prepared three Indictments: the one which I have mentioned, charging one Thomas M*Kay with the murder of John Rogers, and the prisoners Boucher and Brown as principals, I have not yet presented to the Grand J ury. That for the murder of Alexander M*Lean is returned a true bill, and I have prayed the process of the Court against Grant and Perrault upon it ; but as respects the prisoners at the bar, Brown and Boucher, considering that this unfortunate man, McLean, was one of the party killed at the same time with Mr. Semple, of whose murder they were acquitted yesterday, after a full and impartial trial by their country, in which the whole of the evidence on both sides was most fully gone into, I am conscious that justice demands no further pro- ceeding against them, for the part they acted in the melan- choly business of the 19th of June. In thus deciding, I am not influenced by an opinion that the legal right to try them, though thus acquitted, fur the murder of any others of those twenty-one persons, can be even questioned, but because they were virtually as much tried for the murder of Alexander M*Lean as they were for the murder of Robert Semple, and that I could produce no other evidence against them than they had already been tried upon for their lives ; and that, therefore, though not strictly speaking illegal, it would be unjust, to put them upon trial again for the me- rits of the same charge, as their acquittal was not owing to the particular manner in which the offence was laid, but went entirely upon a full consideration of the evidence. I was desirous of explaining this point to your Lordships, and having done so, I now move to enter a noli prosequi against Paul Brown and Francois Firmin Boucher, on the Indictment for the murder of Alexander M'Lean. Mr. Sherwood. — Then, as the Attorney- General has nothing more against Fran9ois Firmin Boucher, he is dis- charged of course. SolicitoT'General. — Upon a reference to the case of my Lord Thanet, I believe it does not follow, of course, upon the acquittal of a prisoner, that he is instantly discharged. Mr, Justice Campbell. — It is quite unnecessary to refer to (* il 1 i>' i ] r I i. \'i\ ^ J ^24 autliontlc, Mr. Solicitor-General. If the Court has any reason lo suspect there are other charges a^^ainst a prisoner, it will detain him, but he can not be detained for any fees, or on any other consideration. Jf his enlargement is not op- posed by the Crown, or the Court have no reason to suspect other charges against a prisoner, he must be forthwith dis- charged upon acquittal. If there are any grounds of oppo- sition, the prisoner is coni;nitted, under a rule of Court, to the custody jf the Sheritt", which, I suppose, will be the •ase with one of these men now before the Court. Chief Justice. — Is there any thing, Mr. Attorney-Ge- neral, against these two men ? Altomey-Generai. — My Lord, against Paul Brown there are Indictments for felot)y. Against Francois Firmln Boucher I have no other charge. Chief Justice. — Let Boucher be discharged, and Paul Brown stand committed to the custody of the SheriflP, to answer to the Indictments against him. Mr. Sherwood. — In the case, my Lords, of the King .igainst Cuthbert Grant and others, for the murder of Robert Jiempic, I beg leave to mention, that Mr. John Siveright, charged as an accessary before the fact, is in gaol, under process of the Court, and wishes to be put upon his trial, although the whole of the principals are not convict or attaint. I therefore move that he be arraigned with the accessaries after the fact, who are also equally desirous to be put upon their trial, and, 1 believe, equally entitled to de- mand it. Chief Justice.— 'The law nuilics no distinction between the accessary before or after the fact, relative to his trial, if the one or other choose to run the risk of going to it before the jirincipals are convict or attiiiiit. It may be well to remem- ber that, if conviction followeth trial, no sentence can be passed till the whole of the principals are tried or attainted. Altorney-Genei-al. — There is, 1 believe, no instance on the books, in which accessaries have been put upon trial before the priuci])als, though it may be their right, if they choose to risk it. Chief Justice. — There is no doubt, absurd as it is, that they are entitled to be put upon their trial if they choose it. 1 think it, however, a point worthy of their serious considera- tion, ])articularly the accessaries after the fact, that they can not be bailed after they arc arraigned, and that, if found guilty, they can never be discharged till all the principals are tried and acquitted. However, us il docs uot suit the Court 225 to attend to any of these trials till to-morrow, you ha*' better, I think, consider of it ; and if the question is then raised, it shall be disposed of. But I think it will become you seriously to reflect before you adopt the measure. The Court then proceeded to the ordinary busin<;8S of the District. \ I Thursday^ 29th October, 1818. Nothing took place this day relative to the trials connected with the disputes between the North- West and Hudson's Bay Companies, excepting the trial of Paul Brown, upon the Indictment (/ippendix, i)J for stealing a blanket and a gun from Michael Heden. This trial was one of very little interest ; and it will suffice to say, that the evidence was of such a nature that the Jury, without hesitation, acquitted the prisoner. ♦ t.«.i*kj J**., \ f "iHHMw ■!■ »B 4 I 4 TRIAL ,' !:'1 Of JOHN SIVERIGHT, ALEXANDER AlACKENZiE, HUGH M'CIILIS, JOHN MCDONALD, JOHN M-LAUGFLIN, AND SIMON FRASER. I J !»r 41 , J, «■.! I m\ mi ) "I 1h 1 ■3 '9 U PROVINCE OF UPPER CANADA. HOME DISTRICT. Session of Oyer and Terminer and General Gaul Delivery, held at York, in the said Home District, on Monday the 19^/* Day of October, 1818, and continued by adjournments, to Friday, thedOth October, 1818. \ present: His Lordship Chief Justice Powell, The Honourable Mr. Justice Campbell^ The Honourable Mr. Justice Boulton. John Sivekicht, Accessary before and after the Fact ; Alexander Mackenzie,-^ Hugh M'Gillis, f John M'Donald, | v Accessaries after the Fact ; John McLaughlin, and Simon Fraser, i zcere seterally arraigned on the Indictment (Appendix B,) and after some unimportant observations respecting the Great Seal Instruments, the accused severally pleaded Not Guilty; and various challenges having been made, on the part of the prisoners, the following Gentlemen were sworn as a Jury: George Bond, John Wilson, 3d. Willtam Harrison, Peter Lawrence, Michael Whitmore, Joshua Leacu, John M'DouG ALL, jun. Peter Whitney, Alexander Montgomery, Jonathan Hale, Harbour Stimpsun, John Hough, 132 •• t,! •fi 4 V'^\ Counsel for the Crown, Mr. Attorney-General Rodinson, Mr. Solicitor-General Boulton. . , Counsel for Prisoners, Esquires. Samuel Sherwood Livius P. Sherwood W. W. Baldwin OD, 1 ooD, y Solicitor-General. — May it please your Lordships, Gen- tlemen of the Jury. The prisoners at the bar arc accused, ps you will have perceived from attending to the indictment, of the crime of murder. It is not alleged against these indivi- duals, who are charged in different degrees, that any of them actually killed Robert Semple, whose death is the unfortunate subject of the present trial, but that they, severally and jointly, assisted one Cuthbert Grant and Louis Perrault, alias Mo- rain, to take the life of the deceased, or received and com- forted, the murderers, knowing of their guilt. John Sive- right is indicted as an accessary before the fact, and the description of one guilty of being accessary before the favt, is, that he counsels, procures, or commands, another to do and commit a felony. Accessary after the fact, is the crime of receiving, relieving, comforting, or assisting the felon to escape the punishment due to his crime, and of this offence the five other Defendants are accused. In the present case. Gentlemen, there will be a necessity to be satisfied that the crime has been committed within the Indian Territories, and not within the Province of Upper or Lower Canada. A second point will be, to ascertain that the murder has actually been committed; and, those facts established, you will enter immediately on the enquiry for which you are impannelled, viz. that of ascertaining and declaring if John Siveriglit counselled, procured, or commanded, the murder to be per- petrated; and further, whether those charged as accessaries after the fact, or any of them, (and Siveright is included in the number), did receive, relieve, comfort, or assist, the principals, having a knowledge of the felony; and if this is made out, it will be your painful duty to return a verdict of guilty. The case will be fully opened to you by the At- torney-General ; it is therefore unnecessary that 1 should detain you. Altornet/'General. — May it please your Lordships— Gen- tlemen of the Jury. You are now, as the learned Solicitor- General has just told you, impannerlled to try John Sive- right, as an accessary before the fact, and Alexander Mac- kenzie, Hugh M'Gillis, John M'Donald, John M'Laugh- lin, Simon Fraser, and John Siveright, as accessaries after the fact, upon an indictment for the murder of Robert Senple, in the Indian Territories, or parts of America not within the limits of either of the Provinces of Upper or Lower Canada, or of any civil government of the United States of America. It will be obvious to you, Gentlemen, that we must first establish the original offence, because there can be no accessary before the fact, unless we satisfac- torily prove the original offence. This much I fear. Gen- tlemen, will be but too clearly shewn ; it will then be neces- sary to consider what is meant by the terms counsel, aid, hire, or command, a person to commit a felony, which con- stitutes the crime of the accessary before the fact. The ex- pressions are exceedingly general, and comprehend almost any act which has a tendency to promote the perpetration of crime. It may not be improper to mention to you, that in many cases the crime and the punishment of the accessary is the same as the principal, and murder is, by the British statutes, particularly distinguished as one of those offences in which the law considers the guilt to be equal, and inflicts the same punishment upon an accessary as upon the princi- pal. In ascertaining the guilt of persons accused as acces- saries after the fact, it is necessary to enquire what assistance was given or rendered, and when you satisfy yourselves that it was actually afforded, with a knowledge in their own minds of the guilt of the principals, the offence is brought home against the dv-fendants. There is one thing that it is necessary to mention, viz, that it is not in the power of the prosecution to compel persons, who are accused as accessa- ries, to take their trial, till those who are charged as princi- pals arc convicted or attainted, for, notwithstanding the conviction of «-he accessaries, if the principals, up >n their trial afterwards, should be acquitted, the conviction of the accessaries is void ; but whilst it is not in the power of the Crown to compel them to trial,, they may waive the privi- lege of not being called on to plead, and demand their trials, though the principals are neither convict or attaint. I am now stating to you. Gentlemen, the general principle of a rule of law, that the Crofrn could not have compelled these Defendants to come in and take their trials at present, and ,A3 ^UhM M ■lA' 1 < I V ; '' it is but fair and candid in me to admit, that the conduct of the Defendants, in thus coming forward and putting them- selves on trial, might be considered, in their circumstances, as shewing a consciousness of innocence, amounting to a certainty of acquittal. I sincerely hope and trust this con- sciousness and certainty may prove to be well founded. But, Gentlemen, though this conduct is such, that, acting from humane and honourable principles, it might well be esteem- ed as indicating the total absence of guilt, it must not be received by you as absolute proof of innocence, but you will give your attention to the evidence which will be pro- duced on both sides, and then give such a verdict as justice may require, no matter who may be affected thereby. There is another circumstance which I ought to mention, for two or three reasons. It is, that the indictment upon which the Defendants have been arraigned, charges four persons as principals, that is to say, with having actually perpetrated the murder. Of these, Gentlemen, it is right to inform you, that two have been tried and have been acquitted, but it is also my imperative duty to mention, that this is by no means to be taken by you as evidence that no murder has been actually committed, any more than that the persons you are impannelled to try, are not accessaries in the degrees that they are severally charged. The verdict returned the other day, in relation to Boucher and Brown, was undoubtedly correct, and most particularly in respect to Brown, who was satisfactorily proved not to have been there ; but that verdict was confined to the guilt or innocence of those two indi- viduals alone } but the prisoners committed to you are charg- ed as accessaries to the whole four who are accused as prin- cipals, and if you find either of the four committed the crime of which they are accused, and that these individuals were accessaries to the catastrophe of the 19th of June, they are just as guilty as though the other persons had been con- victed. It will be necessary, Gentlemen, (but I shall do it in as few words as possible,) to give you a very brief outline of the occurrences of the 19th of June, which will be fully detailed to you in the course of the evidence about to be placed before you. Sometime about the year 1812, it will appear that a Settlement or Colony was begun to be establish- ed by the Earl of Selkirk, upon a portion of land ceded to him by the Hudson's Bay Company, and a number of emigrants from different places of Scotland, England and Ireland, bad, under his auspices, been conveyed to the spot. situated at the Forks of the Red River, distant about fif- teen liundred miles from this place, at different times, up to the year ISl.*). In that year, owing to a most outrageous attack, no matter at the present moment by whom, the set- tlers were dispossessed of their possessions, which were de- stroyed, and themselves compelled to remove towards Hudson's Bay. It appears, however, that, after proceeding to a post belonging to the Hudson's Bay Company, called Jack River House, and remaining there sometime, they re- turned to the spot where the Settlement had been establish- ed, and were, at the period of this melancholy catastrophe, in the occupation of a few temporary houses, situated at a distance of two or three miles from a building called Fort Douglas, erected at the Forks of the Red, and Assiniboin Rivers. The evidence to be adduced before you, Gentle- men, will prove that, for some time previous to the 19th of June, the colonists had been alarmed by rumours of a deli- berate intention on the part of the Half-breeds, Indians, and Canadians, to disperse them again and break up the Settlement. This very prevalent report had occasioned a constant look-out to be kept from a sort of watch-house at Fort Douglas, and, upon the evening of the 19th of June, the man at the station gave the alarm, that a number of persons, armed and on horseback, were passing the fort at some distance. Upon this notification, Mr. Semple took his spy-glass, and, accompanied by two or three officers of the colony, went to the look-out station, to ascertain who or what this unusual party were. I do not know that we shall be able to produce any evidence as to their approach- ing in any particular order or rank, but they were armed and pail red, and their whole appearance evidently hostile. Mr. Semple ordered about twenty men to accompany him to see what this force could want. That number, or rather more, I believe, the evidence will shew, took their arms and followed Mr. l^emple. At first they observed only a very small band, but when they had proceeded about a mile and a half, they observed that there was a very large party. We shall distinctly prove to you. Gentlemen, that this party was headed by Cuthbert Grant, who is charged in the indict- ment to have actually perpetrated the murder, by shooting Governor Semple. Whatever, Gentlemen, may have been the deficiency of evidence relative to other persons, we shall most incontrovertibly prove, not only that Grant was there, but that he actually headed the party. We shall also go far- ther, and shew by his own confessions, or declarations, the ' i \ * % M' jat^M 8 I i i 1 p?rt which he took en the 1 9th June. As to Louis Per- rault, or Louis Morain, the other principal, who has not been tried, we do not propose to offer any evidence to his conduct, because it is unnecessary. If we prove to you that there is one murderer, and that the Defendants were acces- sary to the felony and murder committed, it is the same as if we proved the particular share of each participator in the melancholy affray. There was an examination of the person named Perrault or Morain, taken by a magistrate, but as he is not here to prove it, of course it will not be put in evi- dence. Having dismissed from your consideration a cir- cumstance that might have embarrassed you, I shall continue the statement I was submitting to your notice. — Governor Semple observing that the party of horsemen was so nu- merous, halted the men who were with him. They were standing then in a confused state, nor shall I be able to prove that any particular order was given by Mr. Semple for their conduct. This very circumstance, I think, furnishes a strong presumption that there could not exist any intention on his part to attack the horsemen *, indeed he could hardly be so mad as to intend to attack a larger party and make no pre- paration. The peaceable intentions of Mr. Semple might also be gathered, I think, from the manner in which he went out. Why not take every man and the cannon that were in the fort, if he had any hostile plans ? whilst they were standing in the irregular and unprepared manner I have mentioned, the half-breed party gallopped up towards Mr. Semple and his party, then suddenly dividing themselves, the one party stretched towards the river, and joining the other division, they encircled or surrounded Mr. Semple's people in the shape of a half moon. One of the mounted party, a Canadian speaking a little English, now advanced to Mr. Semple's party, calling out " What do you want, what " do you want ?" To which Mr. Semple replied, by en- quiring *' What do you want ?'' The Canadian replied, •* we want our fort." On this part of the narrative I would remark. Gentlemen, that it may perhaps appear to you in e^'idence, that this expression referred to a fort which had formerly been in possession of the North- West Company, to which the Defendants generally belong j but. Gentlemen, whatever may have been the aggression through which they Were deprived of that fort. It can form no justification for the conduct pursued on the 19th June, nor any defence for the accused. To this expression of " we want our fort," Mr. Semple rejoined, " go to your fort.'* Boucher, the '^ 9 Canadian, replied, in most opprobrious and insulting lan- guage, saying, " you damned rascal, you have destroyed our fort." Mr. Semple, who was a man of superior mind, and of very refined manners, no doubt felt indignant at such a coarse and vulgar epithet being applied to him, incautiously laid hold of the bridle of Boucher's horse, and called, I be- lieve, to some of his people, to make him a prisoner. At this moment, Gentlemen, the first shot was fired, and al- though the witnesses generally will not perhaps say posi- tively from which party it came, yet, from a variety of cir- cumstances, I think you will be induced to believe that it must have come from the Indians and Half-breeds. By this shot a Mr. Holte, belonging to the Semple party, was shot, and was seen immediately struggling. Instantaneously a second shot was heard, and by it Governor Semple fell. Boucher had slid from his horse during the time Mr. Semple had hold of the bridle, and it was almost at the moment that he did so that Mr. Semple fell. His followers gathered round him to ascertain what injury he had received, and a general fire from the mounted party took place, by which all, excepting four, I think, were either killed or wounded. These persons most miraculously escaped, and they will be brought before you as evidences. Their testimony will too fully establish the death, to admit of doubt being enter- tained for a moment on that part of the case. The next point for your consideration will be ; what were the inten- tions of Mr. Grant and his party, in going to this Settlement, or to this part of the Red River country ; and upon this. Gentlemen, we shall exhibit before you a very strong piece of evidence, viz. a Letter of Mr. Grant's own writing, dated at Fort Qui Appelle, in which, I think, you will find the object so unequivocally avowed, that you can scarcely hesitate in declaring that malice aforethought did exist in his mind. In considering this case, it will be absohitcly necessary that you correctly ascertain whether it is one of manslaughter or murder, because, if you find it to be manslaughter in the principals, there can be no accessary before the fact, although there may be after. Manslaughter bt^ing an offence which the law considers sudden and unpremeditated, does not admit of accessaries before, but to every felony, (and manslaughter is a felony as much as murder,) there may be accessaries after the fact. Having very briefly stated the outlines of the case, we shall proceed to call the witnesses, and adduce the evidence before you in support of our charge against John Siveright, as an accessary before and after the fact, and <1 10 i1 PI !■ ^^fil H m 1*1 against the other Defendants as accessaries nflrr the fact only. The Court will tell you what constitutes the offence in either case, what aiding and assisting will make an acces- sary bc^fore, as well as what receiving and relieving, an acces- sary after, the fact. And after hearing the testimony, assisted by their directions, you will weigh, as in any other case, the evidence that has been produced on the one side and upon the other, and render a verdict agreeable to the dictates of your consciences, and there can be no doubt of its coincidence with the strictest justice. Mr. Sherwood. — Before we begin to examine evidence, there are some difficulties that I should like to have settled ; and first, can evidence against absent principals be made to bear against accessaries ? and also, how does Mr. Attorney- General propose to apply the evidence to the accessaries, in relation to the several principals ? The Indictment charges four principals, and the Defendants as accessaries, Two of these principals have been tried and acquitted ; these Gentle- men may therefore be considered as half acquitted already. It is a rule of law, that when one principal is convicted, the Crown may put the accessaries upon trial } but here those they have put upon their trial are acquitted, and the Attor- ney-General appears, in his opening speech, to take no notice of that circumstance, or although he did advert to it| he did not state that it would make any difference in his mode of producing the evidence — except the bare mention of the circumstance, that Brown and Boucher had been ac- quitted, he did not even by a side-wind touch upon the sub- ject. The Attorney-General proposes to go into evidence as to the conduct of absent principals, and then make it evidence against the Defendants, who are charged as acces- saries. — Before he is allowed to do so, I think it is incum- bent upon him to produce some legal authority for his course, because it is one that appears to me to be completely novel, and as extraordinary as novel. Mr. Justice Gamphell. — You should have thought of this difficulty before you insisted upon being put upon your trial ; it has been your own act to bring it on, and you can not restrain the Crown from shewing that the murder has been committed. It must enquire into, and establish the guilt of the principals, as much as if they were on trial. Mi\ Sherwood. — I would remark, my Lord, that we are left without any rule upon the subject. From my Lord Hale down to Chitty, we have no authority upon the point, that I know of. I do not positively say there is no authority, II hut there is no application of it| and therefore it would be merely speculative to give an opinion on the subject. In the absence of authority, or of the production of it, I apply to the Court for information, whether Mr. Attorney-General can, against the present Defendants, adduce as evidence the conduct of absent principals. I think he can not. If he can, I should like to know under what rule it is. Attorney-General. — I confess, my Lords, I cannot see what the Learned Gentleman means. He has insisted upon going to trial before the principals are tried, and before they are attaint. Did the Crown possess, and had it exercised, the power of compelling these persons to take their trial, the Learned Gentleman might be warranted in calling upon us to shew the rule by which we justified the application of evidence; but in availing himself of the right which the law gives to the accused, of compelling the Crown to put acces- saries on trial, in the absence, and before the conviction or attaint, of any of the principals, they have made the rule for themselves, and must take it with all its inconveniences. If, my Lords, it is permitted to persons accused as accessaries to compel the Crown to put them on their trials, I would ask, how can it be possible to convict them, unless evidence is ad- mitted of the guilt of the principals ? To attend to this doc- trine of the Learned Gentleman would be to say, that in granting the application of these Defendants to be put upon their trial, your Lordships directed their acquittal. Our evidence will be first, to the guilt of those who are charged as principals, and having established that, we shall add to it all the testimony we possess to substantiate the accusation against the accessaries. If there is any hardship In the course, it is a hardship of the Defendants' own seeking } they insisted upon their trial, and compelled the Crown to arraign them. (The Court intimated its approbation of Mr. Attorney- General's observations, and directed the trial to proceed, remarking to Mr. Sherwood, that when he thought the rules of evidence infringed on, he could apply to the Court. Mr. Sherwood, assenting to the direction of the Court, de- manded that the witnesses on the part of the Crown might be ordered ta withdraw, and remain out of Court till called for. — The witnesses upon both sides \\ere called over, and went out of Court. ■i-i ) *il atj<''**iir»- --^ 12 u> H I'l': m El r*- Cib It SI 8**-B' rf h| i^ti' ff T .|B| I ^ 7- H t . I; 1 ^^il I V'*.; ' Mir If A EL JIEDE N sreorn. Examined by (lie Attorney-General. ficihn. — I was living, in the year 1816, and durinpr the Slimmer of that year, at a place called Red River, in the In- dian Territory. I was there in the month of June, in the capacity of a servant in tlie Settlement. I was a blacksmith. We were compelled, I think it was on the 23d of that month, to leave it, by the party who attacked us i,n the 19th. Wc were warned, both by the hunters and free Canadians, that wc were to be turned out of Red River ; both the Indians and freemen told us wc were to be attacked. On the even- ing of the li)ih of June, perhaps about six or seven o'clock, as we had for some time before kept a watch at the fort, the man on watch gave notice that a party of armed men were going towards the Settlement. Governor Semple was alarmed, and took a spy-glass, and went to look, accom- panied by Capt. Rogers, fie soon came down again, (I did not go with him to look,) and said the Half-breeds belonging to the North- West Company were coming. He told about twenty men to take their arms and follow him, to see what those fellows were about. Tliere were about forty servants, men, women, and children, in the fort at the time. Perhaps about thirty or forty men, now I recollect, but I am not sure. I think about twenty-eight men went out with him. I do not know how many were left, but there were, I should think, more than ten left. There were three or four pieces of cannon at the fort. Going on, at a little distance from the fort, we met some women and children running, clasp- ing their hands, and crying; they said the Half-breeds were coming, and the North- West, v/ith carts and cannon. Go- ing on a little farther, we met more of the settlers, men, women, and children, wlio said th^; same. Mr. Semple did not ask tlicm to go with him, but told them to go to the fort. When Mr. Semple heard that the Half-breeds had cannon with them, he sent Mr. Bourke to the fort, to get one of the pieces of ortlnancc, and Mr. Bourke went, but did nut return witJi it, that I saw. I saw only two or three horsemen at first from the fort, but at about two miles dis- tance I saw more, and then they gallopped up to us, and surrounded us In the shape of a half moon, they were in a body and armed. I only knew Grant and Brown ; they were painted, but I do not know if differently to going to war. I do not know if they paint in different ways. 'I hey funned the h.ilf moon, and remained tirm till Governor i:? 1,11, a 7 Scniplc was challcngcil by Houcher. W hen they had sur- rounded us, IJouchcr came tVom his party, and waved his hand, riihng up to us at the same time ; ami called out, " What do you want, what do you want ?" Mr. Semplc said, " What do //(»// want ?" IJoucher answered, " wc *' want our fort." Governor Semjilc told him, " well, go to your fort }" when IJouchcr immediately said, *' No, you *' damned scoundrel, you have destroyed our fort." ^Ir. Semplc said, " You rascal, do you tell mc so i" Attoructj'Gentral. — VVhat did you understand by *' we want our fort ?" JJeden. — I do not exactly know, but as far as I can un- derstand, it was Fort Gibraltar that he meant, which was about a mile above, at the Forks. The Governor caught hold of the reins of his bridle, and called out to some of the people to make him a prisoner. When liouchcr he.ud that, he slid from his horse on the other side. As soon as Boucher had done so, Mr. Holte was killed by a shot from the other party, and immediately after, there was a second sliot, and Governor iJemple fell j these .vere the first shots I heard. Altonu'i-Cltueral. — Had any thing happened in going along, that gave you to understand what .Mr. Semple's wishes were about firing ? Jledin. — In going along, at about a mile distance from the fort, Rh*. Holte was carrying his gun carelessly, and it went oft* by accident. Mr. ^emple reproved him, and told him that he ought not to carry his gun in that careless way, and that the other party might make a handle of it ; for, says he, I do not mean any tiring at all. When they were coming up to us, one Kilkenny, belonging to our party, said, " we shall be shot. 1 sec there is something bad " approaching : if you will give mc leave," (speaking to the Governor), " I will take down Cuthbert Grant, who is one *• of the heads." Governor Semplc was very angry with Kilkenny, and said, " I want no firing at all." This was before Boucher challenged the Governor. None of our party were on horseback. We walked, but did not hurry, they might have got out of our way if they would, cer- tainly, as they were on horseback, and we on foot. Mr. Scmple was not on horseback. Atlorney-Crencrid. — And you are sure Mr. Holte and Mr. Semplc fell by shots from the other party .'' Heden. — Yes, by the first shot Mr. Holte fell, and then Governor Semple by the second ; afterwards the firing was i 'if A '^— 44 V li-/'P^^ » I i general, and nearly all our people were killed. One Michael Kilkenny and I were together, and he said, " can not wc «* make our escape ?" I said, " the Lord have mercy upon " us, while there is life there is hope, let us try and make *• our escape." Wc accordingly '''I, and outrun the Sur- g eon, who started with us. " .*w '^trc abort six Half- rccds had got between us ari'l tl"" r* •"••', ^hey shot ai us, and the Surgeon fell. While wee stripping him, Mr. Bourke and nine or ten men with the arf'hery took their attention, and we got to the river and escaped. Kilkenny by swimming, and I and one M'Kay in a canoe. When Governor Semple fell, the people all gathered round him, though he called out to them to take care and do what they could for themselves, and directly a volley was fired, and scarce one of our party was left standing. I saw nine or ten dead bodies next day at the fort. Attorn ftj-Genernl. — How did you get to the fort .' Hed( n, — After making my escape, I got to the fort in the night, and remained there. Among the dead bodies brought next day to the fort, was that of Governor Sem- ple } there were nine or ten bodies. Attornty-Gr.neral. — Did you see whether it was wound- ed by a musket ball i Hcdcn. — It was mortally wounded In the left breast, but I could not distinguish whether by a musket or not, as it was all over spear wounds. Attorney-General. — Did you see Grant afterwards, and Perrault ? Ileden. — I saw Cuthbert Grant the next day, but I do not know Perrault. Grant came to the fort, and took pos- session of it, and ordered us away. Wc went on the 23d June, in consequence. We were to take away the private property, the public was to be left behind, it was not to be moved. The fort was taken possession of on the 20th June by Cuthbert Grant and a party that came with him. It was given up to him, he was at their head, and he re- ceived it. Mr. Grant told me I could not leave Red River too soon, and on the 23d I went away, and all the servants and settlers, men, women, and children, were all sent off on the 23d. Attorney-General.— Do you know how many did escape ? Hede.n.—l do not know the exact number, but there was one George Sutherland, Michael Kilkenny, Daniel M'Kay, and myself. 15 Altornrj/'Grneral, — Do vou know whether Mr. Prit- chard escape J, and how he cfrectcd it P III den. — 1 know that Mr. Pritchard made his escane, but I could not account for him \ I can i or tell how. Wc went oft* in boats, but without any guard, though a guard had been promised us. We were sent down the river to take our own chance, without any protection at all. On the {i4th, at day-light, we met a number of canoes with Mr. M'Leod ; there were ten canoes, with ten people in each. Mr. M*Leod enquired whether Mr Semple, and that rascal, Robertson, were thcr^;, and Mr. Pritchard, I believe, said they were not. We were then all ordered to be put on shore, and our trunks and thines were all overhauled, and our papers taken from us. I do not know what was the reason for keeping our papers. We went on to Netley Creek, and Mr. M'Lcod with us, and then we were over- hauled again, and I and several others were made prisoners. Mr. AlexandiT M'Kenzie was there, the Emperor, as he is generally called ; a Mr. Leith, and a Mr. Haldane. Mr. John M'Donald, one of the Defendants, was there. Atlorney-G eneral. — VVas Simon Fraser there ? Hedtn. — I do not know. I do not know Simon Fraser. Attornefj-GeneraL — Was Doctor I McLaughlin, or Mr. M'Gillis, there.' II (den. — Doctor M'Laughlin was there, but not Mr. M'Gillis. Altornei/'General. — Was Mr. Siveright there i Ueden. — He was not there then, I saw him the next day. Allornej/'Generttt. — He came afterw.irds, did he ? Did the others come with Mr. M'Leod, or arrive afterwards ? Heden. — I am not sure whether they came with Mr. M*Leod, as other canoes did arrive that day and the next. I saw some of Cuth'jert Grant's party arrive at Netley Creek whilst I was there. I saw a clerk, named Fraser, and others arrive. Fraser was one of those who was in the battle of the 19th June. Altornet/-'General.-^WiiS you present at the conversa- tion between the three that you have identified, and the Half-breeds who arrived from Fort Douglas .' Jledeti, — No, I was not. I did not hear any. I do not know of any presents being made to the Half-breeds. 1 do not know that rum and tobacco were served out to them. I did not see any of the clothes that had been worn by our feople on the 19th, on these Half-breeds. We were sent to 'oint au Foutre, and kept a few days, and then sent on to I • ! :.ja , mJUBSUanB^Sfli m 16 Fort William. At Point au Foutre Mr. M*Leod asked mc about Mr. Cameron, who had been made a prisoner} and then shortly after I was put in irons, and sent to Fort Wil- liam, and afterwards to Montreal, being kept at Fort William only a few days. Altorney-General. — Is there, Heden, any other circum- stance connected with this affair, that you remember, rela- tive to which you have not been examined, but which you desire to mention ? If there is, relate it now. Jleden. — I do not recollect any thing else. Cross-examined bj/ Mr. Sherwood. Mr. Sherwood. — You have, I think, told us that you was in the service of the Hudson's Bay Company on the 19th June? Hedeti. — I was in their service. Mr. lihrrwood. — And you was put under recognizance, and taken to Netley Creek, and thence sent to Fort Wil- liam, and afterwards to Montreal ? Heden. — Yes, I was. I was sent a prisoner to Montreal, from Fort William, under a warrant from Mr. M'Gillivray. 71/r. Sherwood. — And you made oath to a long paper before Mr. M'Cord, the Magistrate there. Heden.— \ Jid take my oath before Mr. M*Cord. I made a deposition . Mr. Shtrzeood. — Yon read, I suppose ? Heden. — Yes, I re.id a little, lut not much. Mr. Sherzpood. — Did you ever read your own deposition in r book, or do you know that it was printed in a book ? Heden. — 1 do not kni)W that I ever read it. 1 heard it was printed. Mr. Sherwood. — How came it to be printed.'' Did you take it to a printer to get it publisiied ? Heden. — i do not know how it was printed. I did not take it to any printer myself to have it published. Mr. S/ierwood. — I suppose you do not happen to know how a Magistrate came to publish in a printed book the King's evidence ? Hvdcn, — I do not know any thing about it. Mr. Sherwood. — Do you happen to know, that when you met Mr. M'Leod and his party they were coming from Montreal ? Heden. — I do not know that they came from there — (in answer to a question from Mr. Sherwood, Heden said) — • *4 ^s i: was toU they did, but I do not knovir that they came from here. Air. Sherwood. — Do you know what route they n :re goin? to take, or what party Mr. M'Leod joined ? Ileden. — I know nothing about their route at all, nor do I kuo}r//~(iniernl. — I should be extremely sorry to ob- ject to any course i)i cross-examination, except such as has the appearance of ill treatment or incivility towards a wit- ness, and I can not refrain from saying, that I do not con- sider the questions put to this man by any means fair, but on the contrary extremely irrelevant, and such as are calcu- lated to confuse th.e witness, without promoting fhe ends of justice. Mr. Sherzcood. — The doctrine advanced by Mr. Attor- ney-(ieneral amounts to this, that he only is the proper judge of suitable questions in cross-examining a witness, and that no more must be obtained from a witness than meets his approbation. If this is to be tolerated, we *C 2 %^ \-\ 20 shall have no more of the truth than what such witnesses as this may choose to give us of their own accord ; which may sdit the vic^s of some persons, but is not satisfactory to us, who are desirous that the whole truth may appear. Attorney~Gener(il. — I am sincerely desirous that the whole truth may appear, and I have merely said, that if the man is not bothered, I believe the whole that he knows will be obtained from him j but if, by a series of questions no way bearing on the case, the man is to be confused, it is very improbable that satisfactory tcsiimony will be obtained relative to the firing ; all that the witness has ever presumed to say is, that he heard two shots and then a general firing, but that the shots were so instantaneous by which Mr. Holte and Mr. Semple fell, and the general firing so imme- diately followed them, that he could only jud^e from seeing the smoke and hearing the reports. Mr. Sherrcood. — I have no wish to delay time, I will therefore merely put the question to him, not as to who did fire first, but whether he ever said who fired first ? Did you, when you returned from the battle, say to any body, " It was our party, or Governor Semple's partv, who fired first?" ' Htden — I do not know what I might have said when I came out of the battle, I was so confused ; I do not recol- lect that I said so, or any thing like it, but I was so confused, I do not know what I might have said. Mr. ^hern'ood. — l have but this question to put to you. Have you ever to any body, within a few months, in this very town of York, said that your party fired first, and that you deserved what you got, for that you would have served them the same if you could ? Ueden. — I do not recollect that I have. I do not think I have. iMr. Sherxcnod. — One more question. Do you happen to know whether there were any of the Bois-brules killed in this affair of the 19th of June ? Jieden. — T do nnt know as a fact '.hat there were any. I have heard that there was one man killed on the side of the Bois-brules, but I do not know it of my own know- ledge. DONALD M'COY, szoorn. Examined h\j Ihf Solicitor-General. M^Coy. — I was ordered, in the spring of 1816, by Mr. Scuiple, to go to Qu'Appellc. 1 went, and on my return I ''> 21 iny. p )W- Vlr. rnl was taken prisoner by Cuthbert Grant, Thomas M'Kay, and several others, and carried back to the North-Wcst fort at Qu'Appelle, and remained there a prisoner for three or four days. Whilst there, I heard the people talk of an intended expedition to Red River. I particularly heard one Francis Deschamps speak of it, besides others who were there. Solicifor-Ge72ernf. — Do you know Mr. Alexander M'Donell of Qu'Appelle ? M^Coy. — I do, he was the head at Fort Qu'Appelle. Solicitor-General . — Did you hear any speech made by him, or know of any speech being made by him, in going down, or at Qu'Appelle, to the Indians and Ha'f-breeds, or by any body else ? JSl^Cny. — I did not hear any, nor I do not know of any being made by Mr. M*Donell. I heard Deschamps fre- quently say that the Brules collected at Qu'Appelle, were going down to kill the settlers at Red River. Soiirifor'General. — Might it not be to disperse them, that he said f M'Coi/. — No, he did not ; he said those same words, to kill them. I heard him frequently say so. I was kept at Fort Qu'Appelle three or four days, and then we marched to Brandon-house. I met a good many persons there, and amonj^st others, Boucher was there, and we talked about my having been taken prisoner at Qu'Appelle. I said we had plenty more at the fort and Settlement, to which h-". answered, tliey were soon going down, and would complete- ly destroy !;he Settlement and the fort altogether. Mr. Sfienc'i'od. — I beg leave, my Lords, to ask what we have to do with this evidence relative to an intention of Mr. Boucher or any other person to destroy this Settlement ? Supposing even the intention to have existed, we are not indicted for tb? destruction of the Colony at Red River, or, if we were, this eviHencc would not be admissible against us, upon the vitui principle of our law, that hearsay is not evidence. Let i\ir. Attorney-General put us fairly upon our trial for being accessaries lo Cuthbert Grant and Louis Perrault, in the murder of Robert Semple, and we are pre- pared lo meet it, as we are every other charge he may think proper to bring against us ; but we arc arraigned to answer the ',*•. sation I have just mentioned, and I should suppose th« Aitorney-General would be obliged to confine himself to that charge. Attorney 'Gencral.—Wr have no intention of going ri M' '■-'• B?f/ ■ V- 22 t' m, J-'v ft / n into any other question than the one which obviously arises upon the Indictment. The accusation against the prisoners is, that they were accessaries before and after the fact, to the murder of Robert Semple on the lyth June. To main- tain this charge, ,i is indispensable that we shew the prior, ar. well as subsequent, conduct, not only of the accused, but also of those who accompanied the principals in this out- rage, or who gave directions for carrying it into efl'cct. AJr. U'cius SnertiOii(l.— \ submit, my Lords, that the A 'torney-General must shew that these orders were given by the persons whom he charges as principals, and to whom he alleges in the Indictment we were accessaries Solicilor-Ginet al. — I presume, my Lords, wc are enti- tled to shew the object with which the party set ouL iicm Qu'Appellc, amongst whom v\erc the principals charged with the murder committed on the 19th June If not, how are we to prove that which is the very essence of murder, viz. malice aforethought ? what though the orders were given by a person not named in the Indictment; if wc prove that they were accepted by '.he parties named therein, they made them th<^ir own, and pjiiicipate in the maliov,- which dictated them. I shall ask the witncbS, whether at the time of his being at Erandon-houbc, he saw Alexander M'Donell ? — {the qutslion kfif's put) — i>y«Cr.^.— Yes, Idid. Jttotne^/ (ietierhare in them tlut may not be, with equal and greater facility, brought home to the acces- saries, by confining our investigation to the conchict of o'.Ikt persons. Relative to Alexander MSvoncli, J shall pursue the examination, also with regard to Alexander .ser, though not named in the Indictment. For, my Lords, I would ask how is it possible, in any case of murder, to con- vict either principals or accessaries, unless perniit.cd to shew that which, as f>lr. Solicitor-General observed, is the very essence of the crime, the malice of aforethought; and hew is tl is tc Iv; done if we are precluded from examining into, or j>iving evidence of the previous conduct of this party? May we not, though governed by the strictest legal rules, shew, that in adopting the instructions of any man, though he be lil 23 rot named In the Indictment, the malice aforethought wai evident ? What is the charge against Sivcright and others ? that they wilfully, feloniously, and of iiinlice aforethought, not only commanded, hired, procured, and counselled, but also abcltedt the four persons charged as principals. That may be done in a variety of ways, and though it sh uld have been in concert with persons not named in the Indictment, yet it would constitute a fact of the same felony, and if proved that any of the four were aided and abetted in the commission of the crime by any of the persons who thus premeditated it, those who urc charged as accessaries in this Indictment may be convicted upon that proof against the murderers being established. 3'Jr. Shcrzcood. — That I deny. I deny that the Crown has any right to associate us with persons not named in the Indictment, and infer our guilt from their conduct. The charge against us is not a general one, that with one general privity the offence was preconcerted or premeditated, but that we actiiaiiy incited, moved, stirred up, the four princi- pals named in the Indictment to perpetrate the murder of Robert Semple, or that, '.snowing it to have been committed, we afterwards received, harboured, and maintained them. Solicitor-General. — We shall prove Cuthbert Grant to have been present at the time the orders were given, and that he was at Brandon-house at the time of the conversa- tion referred to j also at the time of Mr. iM'DoncU's ipcech to the Indians; we therefore think Mr. Justice BouUiW. — You had better continue your examination, but try and confmc yourselves to what bears strictly and closely upon the case. Soticitor-d'rtif raf. ~D\d you, M'Coy, hear Mr. M'Do- nell make a speech to the Indians, and what did he say } M^to7/. — I did not hear any in particul.ir. When Mr. M'Donell was speaking to the Indians I could not under- stand him, because he spoke iu French. Afterwards I went t^ Fort Douglas, and found it was rumoured there that they were to be attacked. I remained there till the 19th June, and I was there on that day. Towards the evening of that day, the man at the watch-house in the fort called out that there were a party of men on horseback, coming down to- wards the Settlement. Governor Semple hearing the alarm, took his spy-glass, and with one or two of the gentlemen went into the watch-house, and saw them himself. He came out and told about twenty of us to get our arms and follow him, which we did. When we got about a mile from ' 'I . )i; , li ? I I 94 tlic fort, wc met sonic women running and crying that they were making to the Settlement, and had got carts with can- non} and going on a little farther, we met more settlers, who told us the same thing, and that they had taken some pri- soners. Mr. Scmple sent Mr. Bourke back to the fort for a piece of cannon that was there, and to get as many men as Mr. M*Donell, who had been left at the fort, could spare. We did not wait for the cannon. Upon coming near to the party on horseback, wc saw that they intended to sur- round us, for they divided into two parties, and the one got between us and the river, and the other between us and the fort. When the horsemen began to gallop towards us, we stopped, and when they came near to us, they separated, and one party came across the road, and met the other, who had kept by the river's edge, and formed a sort of half-circle round us, and between us and the river and fort. We were scattered about and standing just as we chose. Mr. i^emplc, I- think, was in front of the party. 15oucher came over from his party to the Governor. I can not say I saw him ride up to him, but I saw him in conversation with him. I could not hear what passed between them, but shortly after, I saw the Governor take hold of the butt of Boucher's gun, and I im- mediately heard a shot, which came too near me, and I turned back and saw that Mr. Holte was wounded, and afterwards I saw that Mr. Semple had fallen ; there was anovher shot which I heard directly after the flrut, and it w:.s not till after the second, that I saw Mr. Semple down, but the two were close upon one another, indeed immediately after one another. The Governor told the men to take care of them- selves •, they had gathered round him up n seeing that he Was wounded, and immediately after there was a volley fired, and I saw very few of our people t-tanding. Solicitor-Genera/.— Was there any f:ring after that ? JM*Co7/. — Yes, there was, but not in a volley j there were a few guns fired afterwards. One Michael Kilkenny, my- self, and Heden, run towards the river, and were followed by some men; one, who wai armed with a spear, being very close to me, I fired at him, and so got away. Solicitor-General .— Did you meet with Mr. Bourke in going towards the river or hear any thing of him .'' M'Coy. — I did not see Mr. Bourke, but I heard that he Was wounded by a shot. We got into an old batteau, and got across the river, and then went to the fort in the night. jMr. Pritchard, who had been taken prisoner by the Half- breeds, came to the fort with a proposal to give it up, which 25 tWQ ? were iny- )wed very U in It he and ''falfl [hich was represented to Mr. M'Donell, and by him to the settlers aqd people who were there, but at first they would not agree to give it up; afterwards Cuthbert Grant and Fraser (Alex- ander Fraser) came with a large party, and it was given up to them, and we were all to go away. We went away on the 24th, I think. \Vc all went away from Fort Douglas, and were to try and get to some of the Hudson's Bay posts at a distance from the Red River country j but we met Mr. M'Leod and a large party, consisting of nine canoes and a batteau. Mr. Alexander M'Ki»^nzie and Doctor M'Laugh- lin were there. Soticilo -Cifnrrnl. — Did you see any of the others there? M*( oy — No, I do not recollect that I did. We were or- dered all on shore and were examined, that is, a good many of us were examined, and afterwards we went to Nciley Creek, where both parties encamped. Whilst there, some of the Half-ureeds arrived from Red River. I mean some of the party who were engaged in the battle of the 19th June. They were very well received I did not see any rewards or presents given to them. I did not see Cuthbert Grant after the 19th. I do not recollect of seeing Morain at Netley Creek, but I saw him afterwards at Point au Fou- tre, in company with those who had come from Red River. Soluity't-Gtmriil — Did you see any thing done by either of those gentlemen (Ihe xcholc of the DeJtmianlsJ that was like giving countenance to persons who had com- mitted murder? M*Co//. — No, I can not say that I did. Cross-examinulioni cortdurtcd h\j Mr, LiviusShep.wood. 71/r. lAx'uis Sfierreood. — You have said, that when the Half-breed party saw yot) they gallopped up and surrounded you ; where were they at that time ? who were nearest to the fort ? M*('oi/. — We were nearest, as they were below us. They came nearly up to us, and then divided, and got be- hind us, and formed a half-circle. Mr. L. Sherieood. — Did they get Ae/wfc/J you and the fort? M'Coij. — Yes, they were below us, and one party went before us to the river, and one passed behind us, getting be- tween us and the fort. Mr. Xi. Sherwood. — Why then they cut off your re- treat, if they got between you and the fort ? » ^ ih- %^\m ^ I u 36 JM^CoU' — Yes, they did. 'Vc could not get to tl>c fort. Mr, L. Sherwood. — Mi^Ht you lot be mistaken as to that ? JiI*Coi/. — No, T could not. I am stire they surrounded us in a half-circle, one party going to the edge of the river, the other passed between ns and the fort, and then joined them, and formed a sort of lialf-moon, cutting off our retreat. (The Court directed Mr. Sherwood to wait whilst they made a reference to Heden's testimony upon this point. After some conversation between the Judges, the examination was continued). Mr. A/. Sherwood. — What Innguage did you say Mr. Alex. M'Donell spoke in, when he adclresscd the Indians? M*Coy. — Mr. M'DoncU spoke French ; when he made speeches to the Indians, h« always spoke French to them. Mr. I J. S/nr-u'iXxf. — J Jo you understand French, so as to tell us what he said to them .■* M*Coij. — I do not understand French much, and can not tell what he said to them. I do not understand French so as to speak it. Mr. L. Sherwood. — Where was Mr. M^Donell wher he spoke French to the Indians .'' M*Co>/. — He was amongst them ; standing in the middle of them. Mr. Ij. Sherjc-ooJ.—D'iJ the Indians understand French? M^Coy. — I can not say ; they prctiy generally do. Re-examiticd hij the 1«olici tor-General. Solicitor-General. — Was there an interpreter among the party tliat set out with Mr. M'Donell from Qu' Appelle ? M^Coy. — Yes, there were interpreters with us. I do not know if what Mr. M'lvonell said to the Indians was in- terpreted. I can not say whether it was or not. Solicilor-General. — If the Indians had not understood what was said to them in French, could it have been trans- lated into Indian to them by the interpreters ? M^Cot/. — It could certainly, but I do not know that it was. Solicilor-Geuernl. — Are you sure that the Brules were between you and the fort, so that you could not get to it without passing through them ? M*Coy. — Yes j they surrounded us on every side ; at first they were before us, and then they divided into two parties, one going round by the river, and stretching beyond us, and the other, going round the other end of our line, got be- 27 twccn us and the fort, and so cut ofF our retreat, that wc could not get to it without passing through them. Solicifor-Grtina/. — Then the wing extended so far as completely to cut off your retreat or passage to the fort ? AJ*Coi/. — Yes, it did. There was no passage to it but by passing through the Brules. I am sure there was not. JOHN P. BOUUKF, sworn. Examined hy the Attorney-Genlral. Mr. Dntirke. — I was at the Red River Settlement iti 1816, and in the capacity of store-keeper to the Colony established by the Earl of Selkirk. I was thereon the lOtli June, and at about five or six o'clock, the persons on watch called out that the Half-breeds were in si^ht, and were making towards the Settlement. I went and looked myself, and saw a party on horseback going towards the Settlement. Governor Semple and a number of others went out to sec what they were about vhat they wanted. We had for some time been oblige > to keep a watch, because we ex- pected to be attacked ; we had information that a large armed force were collecting at the North- West fort on River Qu'Appelle, and that they were coming down to destroy the Settlement. Indeed we heard that they had set off for that purpose. Mr. Semple, and from twenty to twenty-five of us, set out from the fort. We had not gone far when wc met a number of women running in terror towards the fort, crying that the lialf-brceJs were come, and had carts and cannon. I believe they mentioned the North- West servants. I think they said ti\e Half-breeds and North-West people. We went on a little farther, and then met more of the settlers, crying in the same way, saying the Half-breeds were coming down upon the Settlement with carts and can- non. Upon hearinj^ tliis, Mr. Semple directed me to go back to the fort and get a piece of ordnance that was there, and to tell Mr. M'Donell to send as many men as he could spare along with the cannon. Alturm U'Oi neroL — How many men were there at the fort, at the time you sav^r the Half-breeds ? Mr. Boui />■('. — I think there were about forty or fifty, perhaps less, perhaps more. I believe that about as many were left behind as went out with Mr. Semple, but I could not be sure. Mr. Semple did not take all the men with him that he might have done ; he told about twenty to follow M'..l • <;, 4 II I.ViAGE EVALUATION TEST TARGET (MT-3) ^ ^ /. f/. # & % 1.0 ^1^ I I.I 2.5 2.2 1^ •" 136 I 11-25 i 1.4 1.6 Photographic Sciences Corporation 23 WEST MAtN STREET WEBSTER, N.Y. 14580 (716) 873-4503 v V •^ ^\ ^^ ^\ Wk\ >A"^ ^^.f^ ^ / « Hi —Your sole object in going out was of horsemen were, and what they 28 him, more were going, but he hindered them i he could hive taken from forty to fifty able men, had he wished to do so. We might as well have taken the cannon at first, as have got it afterwards, but we did not lake any. It was not till the people told us the Half breeds had cannon that I was sent to get one. Atiorney-G enernl , — Were you put into rank, or order of march, or did you load your guns ? Mr. Bourhe. — No, we were not, nor did we load our guns. Attorney- Genfral.- to see who the party wanted ? Mr. Bourlce. — That was all, and if Mr. Semple had not been there, Mr. M'DoncU would have gone. Capt. Rogers, Mr. White, and Mr. Ilolte went with him. There were no orders given by Mr. Semple, or by any other person that I heard, to attack them, nor did I see any thing like an in- tention to do so. We went out to see who they were, and what they wanted, and when we met the people in terror crying that the Half-breeds were connng with cannon, I went to the fort to get one, and I did not afterwards join the party. After obtauiing the cannon, I was returning, and X saw the horsemen gallop up towards Mr. Semple and his party. Mr. Semple had not reached the end of the Settle- ment when they surrounded him. I was then on horse- back, and could command a view of the whole. I did not advance farther, for just as the party surrounded Mr. Semple, I saw a flash from a person who was mounted, and then immediately after a second, and directly a general firing took place. I was afraid lest I should be intercepted with the cannon, and determined to return with it. I went back part of the way with it, and meeting some men coming from the fort, I sent the cannon back with the man who drove the cart, and returned to where I expected to find Mr. Semple, with the men who by this time had joined me. Attorneij'General. — ^The circle that you spoke of just now, did it extend completely to the river ? Mr. Bourke. — No, it did not, there were woods on the bank of the river, so that it did not stretch to the banks. Attorneij-Gentral. — Could your party have got back to the fort, if you had not been prevented by the Half-breeds } Mr. Bourke. — Certainly they might, if the half-circle had stood still, and not fired upon them. Atlornet/'.Gcnerah'—^vX if the party of horsemen were lo ie 29 between you and the fort, you could not get there, could you? Mr, Sheneood. — I object to Mr. Attorney-General putting leading questions to this witness. His testimony and Heden's upon this very material circumstance directly contradict one another, and Mr. Attorney-General must not tell the witness what Heden has sworn to. Attornet/'General. — I have no wish to do so. I merely want to ascertain the fact. What do you say you did with the cannon ? Mr. Bourke. — I was afraid that I should be intercepted with it, and I sent it back to the fort, and returned with some men towards the place where I expected to find Governor Semple. Going along I met some men belonging to the opposite party, who called out to me in English to come on, saying the Governor was there, and wanted me. I however did not go up to them, but turned back, and tried to make my escape } as we were running away, we were fired at, and I was wounded, and a man named M'Naughton was killed. I howerer escaped to the fort, and on arriving there, or some little time afterwards, I heard that Governor Semple and all who were with him but four or five, had been mur- dered. Attorney-General. — I thought you said you was on horse- back. Mr. Bourke. — I had sent my horse back to the fort. Attorney-General. — How did you get to the fort, being on foot and wounded, and they on horseback ? Mr. Bourke. — They were dismounted and on foot then; they called out to me to give up my arms, which I refused to do, and run away, and they fired at me and wounded me. Duncan M*Naughton was killed by a shot about the same time. I did not see Cuthbert Grant among the Half-breec^ party on the 19th June, so as to distinguish him. On the next day Cuthbert Grant and Fraser, I believe, came to Fort Douglas. I was wounded and up stairs. I however crawled out of bed, and saw a large party, about sixteen or twenty, apparently u;>ider the command of Grant, who insisted, [ believe, on every thing being given up to them, and that the settlers should all go away. 1 did not hear all that passed, but understood we were to leave the Settlement, and we did leave it on the 23d, I believe. As I understood, and as it was generally understood, we were granted our lives upon condition that we all left the Red River Country, and gave up all the public property and Lord Selkirk's property. r I -rr-:^ I /! 30 Upon these conditions we were permitted to go, and Cuth- bert Grant promised to furnish us a guard to protect us from other parties of Bois-brules who were expected. We went away in boats guarded by Fran9ois Firmin Boucher. Cuth- bert Grant did not go. I do not know if Morain did ; he might perhaps, but I do not know him. On the second day after we left Fort Douglas, we met some canoes with a num- ber of North- West partners and men : among them were Mr. Norman M'Leod, Mr. Alexander M'Kenzie, (com- monly called the Emperor), Mr. John M* Donald, Mr. M'Gillis, Mr. James Leith, and a number of other partners. We met them before we came to Netley Creek. When we met them they set up the Indian war-whoop, and when We got close to them, they asked if Mr. Semple was of the party ; this was done in a very insuhing manner ; they enquired if that scoundrel Robertson was there, and that rascal Pritchard. Being informed that Mr. Semple was killed, and of the me- lancholy affair of the 19th of June, they made us put to the shore. Mr. M'Leod ordered us to go. When we got on shore we had all our trunks searched, and after that thev made us go to Netley Creek. This party was armed. When we approached them they appeared to be loading their guns ; they also had two pieces of artillery, which had been stolen from the Colony the year before by the settlers, and taken to the North- West fort. There were Half-breeds in their party, but not in ours, but they were not any of those who were in the affray. Attorneij'General. — You know Cuthbert Grant; did he, at Fort Douglas, tell you what his intentions were in coming down with this armed party ? Mr. Botirke, — No, he did not tell me his intention, ex- cept with reference to Mr. Colin Robertson, whom Grant yiid, had he got hold of, by God, he would have him scalped. Attorney^GenercJ. — VVas any thing taken from the peo- ple, or was it merely a search that was made among your trunks ? Mr. Boitrle. — They took what they liked, we were com- pletely at their mercy; they took a good deal of property from me, which I asked for, but it was refused. Attorneij-Generiif. — When you communicated the parti- culars of the horrid affray of the 19th June, and its melan- choly termination, did they appear sorry or concerned ^bout it ? Mr. Bourle. — No, they did not appear at all sorry; on the contrary, they all appeared very well pleased with the news. ■;. » I I' 31 ex- ^rant Iped. peo- your jarti- Itelan- srned on lews. Allorney-General. — Did the party with Air. M'Leod appear short of provisions ? Mr. Bourke. — No, they had plenty \ they did not ex- press any surprise at not meeting provisions. I never heard them even say they expected them, nor do I believe that they did. Nctley Creek is a lut fifty or sixty miles from Fort Douglas. An encampment was made, and all the set- tlers kept till the next morning, when I was arrested ; Mr. Pritchard had been before. Michael Heden, Daniel M'Coy, one Corcoran, Mr. Pritchard, and myself, were made pri- soners. I was not allowed to speak about the affair of the 19th June. I wanted to relate what I knew to Mr. Norman M*Leod, but I was not permitted. I was confined by my wound, so that I was unable to go about the encampment. We were treated with every insult and inhumanity. I was very bad from my wound, but could get no medicine, nor any thing done for my sore, and all my clothes were after- wards taken from me. A party of Half-breeds came from Fort Douglas, and among them were Fraser and others who were at the massacre on the 19th June. I noticed Alexander Fraser particularly, and besides him there were some of the others who took possession of Fort Douglas on the 20th, and whom we left there on the 23d, when we came away fromi that place under the guard of Boucher. Cuthbert Grant did not come with them. Relative to telling'any of them that these people had been engaged on the 1 9th, and had after- wards taken possession of Fort Douglas, and sent us away, I certainly did not communicate with the Defendants, but they must have known it, for every body knew it that was there. I did not tell either Mr. M'Kenzie, Dr. M'Laughlin, or Mr. M'Donald, three who came with Norman M'Leod, but my fellow-prisoners did. I know Siveright, but he was not at Netley Creek, nor at the taking of Fort Douglas. After a few days, the settlers pursued their route towardc Hudson's Bay. Myself and the four 1 have mentioned, were detained prisoners at Netley Creek. Attorney-General. — Did you leave Netley Creek in company with these Gentlemen now under trial, or those you have named ? Mr. Bourke. — I did leave it in their company, and went a prisoner to Bas de la Riviere. I can not say 1 left it in their company, but they left it at the same time that I did, and I saw them afterwards at Bas de la Riviere. I saw Mr. M*Leod and the most of the Gentlemen I had seen before at Netley Creek, and I saw some of the Half-breeds who huu hi _ji:i3»' 1 32 li^n at Fort Douglas on the 20th June. We were afterwards . taken to Fort William. Before we went to Fort William t was put in irons. Irons v^^ere put on my hands, and all my clothing, a case of instruments, and my watch, were taken from me. Mr M'Gillis came with the party, and I saw him afterwards at Bas de la Riviere, and at the same time I saw there Alexander Fraser, and two others who came from Fort Douglas to Netley Creek. Mr. M'Gillis was there, and so was Mr. John M'Donald. I was a prisoner during th^ whole of the time. I saw Hugh M*(jillis at Netley Creek afterwards ; I do not recollect that I saw Simon Fraser among them. Attornetj-Genernl. — Although you did not tell any of the Defendants that these people, who afrived at Netley Creek from Fort Douglas, had been engaged in the affair of the 19th June, and afterwards had sent you out of the Red River country, yet you 'lave no doubt but they were ac- quainted with all the circumstances } Mr. Bo^rl^— 'I 1 -»*i .J^^^iiAV^^Y-. ^^ 33 AUorn f y ^General. — Was it Alexander M'Donellj who was at Qu' Appelle, that you are speaking of ? Mr. iSourkc. — Yes, it is the same person. I heard him, in this conversation, say, that the sending down the Half- breeds was certainly carrying things to extremities, but that it could be said that our people had gone cut of the fort tp attack the Half-breed party, and by that means met theif fate. Mr. M'Donell asked Mr. M'Gillis what was the plan which he would have taken to destroy the Settlement, and he rcj lied that his plan was to attack Fort Douglas at once, or imitiediately ; to which Mr. M'Donell said, that if they had, they would one half of them have been killed, as the fort was fortified. Mr. M'Ciillis then asked Mr. M'Donell what had been his plan ; to which M'Donell answered, he had proposed to starve the fort, as they had only a few bags of pemican. There was a good deal more said, but that was all I heard about the affair of the 19th June. I was taken to Fort William, where 1 was kept a close prisoner, in the most horrid manner, in a place that had been a privy, and into which no light was admitted but what came through the crevices, between the logs of which the building was constructed. I was kept in this place above twenty days, and was then taken to Montreal. Altorneij-Geiiernl. — Was any thing said by Mr. M'Gillis about the murders which were committed on the 19th June ? Mr. Bourhc. — 1 did not hear any thing. Cross- Fxam'inationy conducted by Mi, Sherwood. ]\Tr. SIier:co(uf. — You, Sir, I believe came out to the Indian coimtry from Europe in the service of the Hudson's Kay Company ? Air. Bourke. — I came out under Lord Selkirk's pro- tection, and not in the service of the Hudson's Bay Com^ pany. IMr. S/ierzcood.—Tio you not know that the Earl of Selkirk is the principal proprietor, that he is at the head of the Hudson's Bay Company ? Mr. Iiottrke.~Nof I do not j I do not know any such thing. Mr. Sherwood. — Do you not know that he is a Partner in the Hudson's Bay Company i Mr. Bourke. — No, I do not. I never saw any writing, or any tiling by which 1 am able to say that he is a Partner. Mr. !>/itrwuod. — Well, Sir, though you have never seen the Deed of Partnership, (which 1 did not suspect yon *D t ^^aHVfl a ^M 1 i *. had), did you ever hear that Lord Selkirk wns a Partner in the Hudson's Bay Company, or do you believe he is a Partner ? Mr. Bourke. — I have heard that Lord Selkirk is a ; Partner of the Hudson's Bay Company, and I have no reason to doubt it. I do believe that he is a Partner, but I do not kaow it. Mr. Shertcood. — But, though Lord Selkirk is a Partner, yet' you do not consider yourself in the service of the Hud- son's Bay Company ? Mr, Bourke. — Certainly I do not. I was engaged by Lord Selkirk's agent, and have always considered myself engaged in his Lordship's service. Mr. Sherwood. — You are not in the service of the Hud- son's Bay Company then, you are sine ? Mr. Bourke. — No, I am not, that I know of. I do not think I am. Mr. Sherwood. — You do not think ! Do you not know ? I suppose you know whether you arc in the service of the North- V/ciit Company or not ? Mr. Bourke. — I am not in the service of the North- "West Company, you may depend upon that. I am in the service of the Earl of Selkirk, and, as I consider, in his service only. Mr. Sherzcood. — Do you know that a few months before the 19th June, the North-West Company were in posses- sion of a fort, called Fort Gibraltar, situated near the Forks of the Red River, about a mile from Fort Douglas ? Mr. Bourke. — Yes, I do. I know Fort Gibraltar was about a mile, or not so much, from Fort Douglas. j\Jr. Sherwood. — Do you know that your people took possession of it, and afterwards razed it to the ground, and conveyed the materials to Fort Douglas ? Mr. Bourke. — I know that it was taken by our people, but tliat is all I shall say about it. ytt/orf/ejy-G'cnerti/. — I feel it my duty, my Lords, to oppose, in this early stDge of the present trial, the course which, by the question just answered by the witness, the Learned Gentleman seems prepared to pursue. In the ex- amination of the witnesses on the part of the prosecution, nothing has been produced but what there was an absolute and inevitable necessity for, to substantiate the charge brought against these Defendants, by shewing the intention with which this party set out from Qu Appelle. Beyond that we have not taken a step, though we might pursue pre- u • rv . . ^ , ,»/- t » I- .15 ciself the same course, and prove aggression upon aggression. But I should not dream of proving, as a defence to a charge of murder, that three or four months before a provocation was given sufficiently strong as, at the moment perhaps, to have alleviated such a charge to some diminished homicide. Such a course must serve, I think, to convict, by shewing that malice, which the law always contemplates and charges as existing in cases of murder, actually did exist, and as- signing a cause for its existence. How can the destruction of Fort Gibraltar justify even the taking of Fort Douglas ? but how by possibility can it be any defence for being acces- sary to the murder of twenty -two persons ? I submit to your Lordships, that the Learned Gentleman ought not to be allowed to enter into an examination of any circumstances but Such as are strictly connected with the charge which the Defendants are called upon to defend tliemselves against. Jllr. Sh.f'ricu)od.—l differ with the Learned Attorney- General, and humbly believe I shall have the honour of being supported in the reasons of my difference by your Lordships, because I am rigidly following the course autho- rized by the Court on the trial of two of the principals on this very Indictment. The defence of the accessaries is pre- cisely the same as that which we satisfactorily offered for the principals, and we have no doubt but the result will be similar. If they prove the taking of Fort Douglas, why may not I prove the sacking of Fort Gibraltar ? If they are admitted to prove the capture of property, why am I to be debarred the proof that our property has been taken from us ? I would solicit your Lordships' attention to what was the nature of our defence the other day, because the very same defence wc shall present on this, with this differ- ence only, that our personal evidence will be much stronger to our innocence, than on the former trial. We shall offer the same chain of c'rcumstantial evidence, in combination with a mass of po; r. 'N e testimony, and it must be an ex- tremely severe conhf iction indeed of the rules of evidence which can exclude it j a construction that, after our experi- ence in the former case, we are confident the Court will not enforce. I most respectfully repeat an observation which I addressed to the Court on a former argument, viz. that it is a case sui generis, and ought not to be bound by that strict construction of rules which, in ordinary cases, governs our practice. But, my I^ord, to-day we stand in a very different situation to that which we occupied when for- *D 2 M iih ^14 / ! r I f 3t) tnerJy distussing the same question ; wc luvc no occasion id be enquiring what nlay be done ; we ujay refer to the wis- dom of your Lordships' decision, anil shew what has been done under it in the fcllow-casc, in a trial under the same Indictment : we have a precedent to refer to in the trial of Brown and Boucher. In reply to an observation of Mr. Attorney-General, as to the strictness with which he has confined himself to the rules of evidence, I remark, that he has introduced mere hearsay testimony against persons who are not indicted. I had always thought that hearsay was not evidence in ngard even to those who were indicted, but it is the first time I ever witnessed it admitted relative to a third person, as evidence against a prisoner ; but, in your Lordship's opinion, it no doubt was necessary to the admi- nistration of substantial justice in this extraordinary case. If Mr. Attorney-General goes back to circumstances, to shew that the malus animus existed previous to the battle, may not we go back and shew, from a combination of cir- cumstances, that a state of iri'itarion mutually existed be- tween the adherents of these two great Companies, such as might be reasonably expected to lead quickly to bloivs whenever they met ? and if we establish tiiat fact, do we not thereby do away the charge of premeditated malice ? If we are not allowed to do it, the coming with guns might be considered a proof of malice premeditated, whereas, if wc are, (as we shall shew the necessity there was from this very state of things at all times to go armed), it will turn out to be an accidental rencontre, very fatal in its conse- quences, and much to be regretted, but, nevertheless, from the mutual state of exasperation between the parties, not amounting to murder. It can not be too often enquired, whether, under the circumstances of the country, notwith- standing the lamentable loss of lives, murder could be com- mitted, as well as whether the Partners of the North-West Company were accessaries to its commission? I should think that the Crown felt doubts upon the subject, for to sustain the simple char^ge, the abstract accusation of com- mitting murder at Red River, and being accessary, v/e have seen the Attorney-General travel up to Ou'Appelle, as dif- ferent a position as Onondaga is to Lake i'imcoe. We see him travelling four hundred miles from the place ; from there he goes to Bas de la Riviere, just touching at the scene of action ; then we meet him at Lac de la Pluie, and finally at Fdrt William and Montreal; a journey of nearly three 37 thi5 not thousand miles, wlilch, It will be seen by thi'? bIrJ's eye view of his route, he has found it necessary to talce, to prove the very first ingredient of his rhargo, viz. a premeditated malice. Attornei/-(leveriif. — I have to beg that the Learned Gentleman, though his statement docs not affect the case at all, will state correctly. 1 have not mentioned Lac dc la Pliiie during the trial. lilr. S'li ni(>()(f,--l beg the Learned Gentleman's pardoHi but I have not yet mis-stated him. Mr. M'Gillis is men- tioned as having come from Fort William with Mr. M'Leod, and a conversation is related, which took place at Lac de la Pluic, and, except in that instance, the name of Mr. M'Gil- lis has not been introihiced by any witness, cither oi> his examination in chief, or in. his cross-examination. AHoincij'-CffiK'.rdl. — It is a matter of very little conse- quence. 'Ihis irregular method of cross-examining a wit- ness must be opposed some time, and it may as well be at the present moment. As to the example which the Learned Gentleman considers I have set him in going from place to place, it is in no point of view similar. I must take this, party wherever I can find them. I prove their setting out from Qu'Appclle. I accompany them to Portage des I'rairies ; shew their departure for the b'Cttlemcnt, and the melancholy catastrophe that occurred on the IDth June j after that I endeavour never to lose sight of them ; if they are at lias de la Riviere, I shew their conduct ; if they are to be met four hundred miles in a contrary direction, I fol- low them, and shew their conduct, and from their conduct thc.lury will appreciate their intention. It is indispensable that this should b-- done, because it is only by their conduct tliat their intentions can be correctly appreciated ; vvha^ may be ili;; consetiuences of my doing so, is not a point ne- cessary for me to argue. Air. Sfiencnotf. — I did not consider Mr. Attorney-Gene- ral at all in order, in interrupting me in the argument I was addressing to your Lordships. There are, I take it, two points highly necessary for us to pay attention to in these very important trials. We have to take care, for the pur- pose of distributive justice, to preserve the strict rule laid down the other day, and also that we carefully follow the entire course of that trial, for it was a satisfactory and cor- rect course, and eminentlv calculated to attain the ends of substantial justice. On that occasion it was argued and set? (}edj that the names of Grant and Perrault appearing orv ft f I \ t -■' 38 'l i I tlic Indictment as principals, testimony might be given of their conduct, and that it was good evidence against Brown and Boucher, the principals then under trial. To-day the accessaries are under trial, and u new question arose i can the dictum of these individuals be taken as evidence against accessaries ? The Crown Officers said, you shall not go into your evidence of justification as the other day, because, al- though there might be a justilication for the principals, it does not follow that it is one for the accessaries. But, my Lords, we contend, and with confidence, that we have a right to pursue precisely the same course to-day. VVe are now on trial without a single principal being convicted or attainted, and all that have been tried have been acquitted, and they were acquitted on this very ground, that we shewed satisfactorily that, although lives were lost, still there was no premeditated malice, and therefore there could be no murder. Till Mr. Attorney-General establishes the preme- ditated malice, he establishes no fact, and we must meet his endeavours to do so, and refute them if possible. There can be no accessaries before the fact where there is no fact *, there can be no accessaries after the fact where there is no fact, and no fact has Mr. Attorney-General yet proved. To convict us, he must shew to this Jury that the principals are guilty, though hereafter, on their own trial, they may be acquitted, and we, consequently, relieved from the pre- sent consequences of an erroneous verdict. To shew this premeditated malice, Mr. Atiorney-Gcneral has travelled to Qu'Appelle, and proved that this party set off armed } he gets to Portage c!cs Prairies, and we hear of an Indian harangue, and of the party proceeding on horseback, and in this manner he has taken his witnesses from place to place, all over the Indian country, and even to Montreal. After this, shall we not, my Lords, be permitted to shew that this, instead of indicating malice, was exercising the duty of self-protection ? Shall not wc be permitted to dis- prove this pretended harangue, or to shew that any regrets, contained in casual observations made to Indians, were occa- sioned by the depredations daily committed on our property preventing our treating them as we had been accustomed to do ? Shall we not be permitted to shew, that cur going on horseback was one of the inconveniences which the con- duct pursued towards us compelled us to suffer ? Yes, my Lords, if Mr. Attorney-General travels, so must we, for we have just as good a right. ylUornci/'Gcncral, — My Lords, I stand here the advo- i.\ ' ^»w*-*i • ■ 39 tlis- for cate of propriety, ami humbly rcprcs6nv to your Lonlshi|« the extreme irregularity of the course pursued by the Learned Gcntkuu'.n, not onlv in his cxaniiiiation of thi* witnesses, but in the observations which he submits to the Court. The Learned Cicntleman says, I have travelled four hundred miles from the scene of action. I have so, but it is absolutely necessary that I should do so, or how am I able ro prove the intention of the persons accused ? If, instead of four hundred, it had been a thousand miles that they had gone. I must have followed them. The course, my Lords, that 1 have adopted, I consider to be ob- viously the correct course. 1 traced this party to Fort Douglas, and I never have kft them for one moment ; wherever I may have journeyed, it has been so as not to lose sight of the accus^^d ; and it is a matter of no consequence whither I am oblii^ed to trace them, though even across the; Rocky Mountains. Respecting the licence which your Lordships allowed on the former trial, I bowed, as it is my duty to do on every occasion, to the wisdom and authority of the Court ; but I do trust that the extent to which that privilege was carried by the liCarned Gentleman who con- ducted the former defence, and the manner in which it wa;? used, will have satisfied your Lordships, that the ends of public justice are not to be promoted by admitting a repe- tition of it. I can not see what justification — justification it can not be* — or what defence c'\n it be, that aggression? have marked the ronduct of both parties. So far from being any defence, I consider that the very circumstances produced for that purpose e';tablished the charge, by shew- ing the malice, which the law considers the criterion of murder. I trust we shall not be exposed to the inconve- niences which invariably attend any deviation from the strict rules of law ; as in the Act giving us power of jurisdiction over oHences committed in the Indian Territories it is de- clared, that they shall be tried in the same way, as well as be considered ofTei.-es of the same nature, as if they had been committed within the province exercising the juris- diction } and moreover, as the offence now under trial has, by the Grand Jury, been found to have been committed at York in the Home District, I do hope the ordinary and establisb.ed rules for trying such offence will be adhered to, or if attempted to be exceeded, your Lordships will enforce their observance. Mr, Sherwood. — My Lords, I cannot refrain from ex- pressing my astonishnicnt vx tlxis attejnpt of the Learned ,--' ^.-ft. 4d Cientleman to overturn the salutary and excellent decision given by your Lordships at the commencement of these proceedings ; a decision acted upon with such singular pro- priety, and so perfectly conducive to the real and substan- tial purpose of impartial justice between the Crown and the accused. It is true, my Lords, it was as Judges of Assize that the decision was given, and as Judges of Assize that your Lordships presided over the trial which was regulated by that decision. But, my Lords, though a trial at the as- sizes, it was conducted with all the dignity of a trial at bar. Nothing could be more grave than the deliberations which took place, nothing more solemn than the decision which your Lordships' wisdom gave upon the arguments we severally had the honour of submitting to the Court in support of our opposing opinions; and not only was that decision grave and solemn, but it was a decision perfectly equitable, and also perfectly satisfactory to the public, who have a lively interest in the result of all decisions made in the course of these trials. Your decision, my Lords, was founded upon rules of law laid down by the most eminent Judges that ever adorned and dignified the administration of justice. Upon the principles of the great Lord Hale, upon the principles of the great Sir William tlackstone, a course was adopted the other day, upon that excellent, sound, and wholesome decision, as satisfactory as the decision itself; and it was a course, that, like the decision, was perfectly satisfactory to the public. The decision and course were substantially right, because they admitted that which tiie justice of the case required, viv^. every combination of cir- cumstances that could throw any light upon the transactions which produced the state of exasperation which was incon- testably proved to have existed in that country; the utmost latitude was admitted on both sides, and very properly ad- mitted. It was a case completely siii isentris, such a case as the wisest on the bench never witnessed, such a case as never was considered by any Court. The decision to admit every thing to be shewn, was a wise decision, because it was a decision consonant to the ends of strict, impartial, and substantial justice. It is a decision that has established a precedent upon which we may safely rely, a precedent which ought to be most strictly followed. It was a salutary principle of action, (and salutary it certainly was), in the case of the principals on this Indictment ; why should it be nar- rowed in a case where, from the very peculiar situation of those interested in the application of the rule, it ought rathei" ^ 41 to be extended ? Why, I would ask, is a rule so reccnilr established in the case of the principals, to be set aside upon the trial of the iccessaries ? It h impossible to assign any reason that will satisfy, and I am persuaded that you wijl aot, until that is d^ne, vary from so equitable a decision as the one which your wisdom dictated on the recent trial. But if doubt existed whether a rule made for the trial of principals ouj;ht to extend to the accessaries upon the strict principles of law, yet there is one rule so general, and so congenial to the spirit of l^ritish Law, that I think, under it, your Lordships will not hesitate a moment ; it is the princi- ple, that every thing that can, without violation of a known and fixed rule of law, shall be conceded /// jaxorem xUce^ and, my Lords, upon that principle alone I v\ould stand without fear, confident that your Lordships would pot over- turn a rule where accessaries are under trial, which your- selves established when the principals were before you. Soliciti 1 Gi nerol — I fear, my Lords, unless your Lord- ships take a different view of the subject to that which the Learned Gentleman has adopted, we shall find ourselves al- together in a very awkward dilemma. The Learned Gen- tleman IS not, I think, entitled to receive from your Lord- ships the indulgence extended to him the other day, be- cause he completely failed in proving that which he said he would prove, namely, a continued, unabated state of exaspe- ration of mind, that never, from the continuity of aggression, had been allowed to cool, or had had time to subside. It was upon this statement, and I conceive upon this strong state- ment only, that your Lordships, after very considerable hesitation, admitted the course to be pursued which was contended for by the prisoners' Counsel \ but, my Lords, after completely failin'j; to prove, from the Proclamation of Air. M'Donell to the I'Jtli Jons, an uninterrupted state of passion, tiiminishing the homicide to manslaughter, if not justifying it, the Learned Gentleman ought not, I think, a second time, to be allowed to go into the course of examina- tion and defence permitted on that occasion. The reason it IS wished for, I think but too evident. It is obvious, I think, that it is not the object of the party to prove a state of actual irritation, such as legal rules admit in extenuation of the crime which is obliged to be charged as murder, but it is, by going into a lengthened statement of difficulties which have occurred between these two companies, to blick- en the conduct and character of the opposite party : as such tcstipiony can amount to no defence on a charge of murder. i w -il %:/ \ ' M I i •5 42 ■ we do think, my Lords, it ought not to be allowed to be pro- duced. Mr. Sherwood. — Our object was then, (and, with great deference to Mr. Solicitor-General, I think I may be allowed to say, I understand what it was quite as fully as he possibly - can do), as it is now, to shew first, provocation exciting a degree of irritation; and secondly, repeated and uninterrupted aggressions, continuing that irritation, from that first provo- cation up to the unfortunate 19th of June. My object was to shew these two particulars, and for what ? to obtain the acquittal of the prisoners, by satisfying the minds of the respectable Jury who tried them, that they were innocent of the crime of which they were accused. I was permitted by your Lordships to proceed with the evidence I humbly con- tended the substantial justice of the case demanded, and we had the satisfaction of seeing the trial eventuate in the ac- quittal of two of the principals on this Indictment. The very same objects I have in view, now that the accessaries are upon trial, and the very same course I propose to pursue, because I am confident I shall attain the same aid. Attorney-General. — I do not, my Lords, intend to offer any additional reasons to induce aq acquiescence in what appears to me the only legal mode of conducting this trial. In making use of that expression, I beg I may be understood as intimating my humble opinion, with the greatest defer- ence to your Lordships' wisdom, by which at all times I desire to be governed ; but having on a forpier occasion so fully developed my ideas upon the question, I should consi- (der I was unnecessarily protracting the discussion, were I to offer again the same, or even additional arguments. The question is sub-- litted to your Lordships* decision, and by that we must be regulated. Mr. Justice BouUun. — Your question, Mr. Sherwood, I think can not be put, for no answer that is given to it can be made evidence. It is calculated only to shew that malice did exist, and was cherished, and certainly dqes not, accord- ing to my idea, come within the limits of fair evidence. Chief , Justice. — The object of the prisoners* Counsel can not, I think, for a moment be concealed or misappre- hended, for it is a very plain one, and a very important one for them to establish, if they have evidence to do so. They say they have the evidence, but the question is then, can the evidence be legally admitted? Their object is to shew that, what in ordinary cases would manifest a felonious intent, does not do so in this. That is undoubtedly the real oi> 43 one ject } it is obviously so. To establish this point, they go back to a certain period of time, and tracing from thence aggression upon aggression, upon the one side and upon the other, they endeavour to establish the necessity of sending an armed force to guard their provisions when under trans- portation. In that point of view, I did think it proper to allow them to shew that this necessity did exist, and I am not prepared to say that we went too far in permitting it. Whether the indulgence thus given was not carried beyond the limits that were intended, may also be questioned. They contend that they have a right to shew the innocence of the remainder in the same way they did that of the others. But it is necessary to observe, that the case here is a case of acces- saries ; a case not exactly, as the Counsel for the prisoners contend, the same as the former, for the principal may exte- nuate or justify his conduct in cases where a prisoner can not that is an accessary after^ for there can be no accessary before the fact, in this, or any case of murder, if upon the trial it is alleviated to manslaughter, but there may be ac- cessaries after the fact. My opinion is, that we did right the other day, and that the same course ought to be pursued now. Let the Jury have before them all the witnesses know upon the subject. I think it is but fair that every thing should be proved that can throw any light upon the subject of these unfortunate quarrels, which led indubitably to this melancholy catastrophe. The justification for going armed, which is the main prop of the defence, can be proved no other way than by admitting evidence that, from the state of things in that country, it was a measure of self-defence almost indispensable. If they satisfactorily establish such a state of things, then they go a great way towards meeting the charge, or at least towards accounting for their conduct in setting out armed, wliich, if they were not admitted to explain, might of itself be considered as furnishing strong evidence of hostile intentions. They commence with the Proclamation, as shewing that the exportation of provisions was prohibited, and they say the effects of that Proclamation, and of the attempts to enforce it, were to produce a high state of exasperated feelings among the persons accustomed to trade in that country, and that, under that state of excite- ment, it was not murder which was committed by the prin- cipals, and consequently the accessaries can rot be guilty of the crime of which they are accused. This state of excite- ment, I think they may prove, provided they never lose sight of it, but go on and shew that it never subsided, from the — - .*,•-•*■• ft'/' I I 44 moment of the Proclamation being issued, up to the truly lamented affair of the 19th June*, but if there is any interval allowed to be shewn, then it is a defence that must fail. Altornei/'General. — Respecting the Proclamation, my Lords, of which so much has been said, I observed before, and I do so again at the present moment, that I consider it as having no weight whatever on the accusation, or the de- fence to that accusation which is now trying before your Lo;-dships, and 1 think that it was unadvisedly admitted on the former trial. As to its forming any defence to the persons now trying, I should contend that, although it might be admitted to have provoked animosity, still proof of animosity existing between the parties can not amount to a justification, and ouj^ht not, therefore, to be allowed to be given in evidence. The utmpst length I consider this mode of defence ought to be permitted to extend itself, is to ge- neral questions as to the state of the country, but particular acts of agj^rcssion should not be aljowcd to be set up as a de- fence, merely because they provoked animosity. It is not my shewing that violence op my part was not entirely un- provoked, that will operate as a defence against a charge of murder, but on the contrary, in proving a specitic provoca- tion, I may actually establish the nialice wliith constitutes the foundation of the charge. Chief Justice^ — I am sorry to see the principle so com- pletely misapprehended. If the object of the Coi^ngel for the Defendants was appreciated correctly, it would appear to be a fair one. 'I hey put in a Proclamation prohibiting the exportation of provisions, and authorising their detention, if attempted to be sent out of the clistrict over which Mr. M'Donell was Governor. They then ask, do you knpw of pemican belonging to theNorth-WestCompany being seized and taken from them by armed parties .-' The answer being in the affirmative, it is manifest that the object of this course of examination is to establish a justification of this party arming to protect their provisions, which they say it was necessary to send from Qu' Appelle to meet the canoes coming from below. I can not conceive how Gentlemen caa misapply observations that are so plain ; I should conceive it impossible for misconception to arise as to their correct meaning. Mr. a/icrwood,— May 1 put the question, my Lords ? the object we have in view is precisely that which his Lordship Jias atated, and we feel ourselves completely entitled to attai^ t.-.,v*J r U" I V ' k 4^ Douglas to do with the murder or destruction of twenty-one persons ? In what manner, I would ask, is it to justify the accused, or to lessen the criminality of thos roncerncd in the transaction ? I repeat, my Lords, with the greatest de- ference, that the line of defence doe* appear to be a most extraordinary, and a most irregular one. Chief Justice. — ^These circumstances are not adduced as justi^cations of murder ; they are used as accounting for what might otherwise be considered a direct and positive proof of malice prepense. It is a justification for their gorng armed. They shew that their property had been taken from them by armed parties, and from thence account for their being found with arms in their hands. Mr. Livius Sherwood. — We wish, my Lords, to shew that it was not a pretence of danger that led this party to be armed, but that a real necessity existed for it, if they wished to preserve their property ; and one method of proving it was to shew, that in this fort we found property that had been taken from us. We wish to shew that, by the armed dependants of Governor Semple and his predecessors, ever :3fter the Proclamation of Mr. Miles M'Donell, our provi- sions had been constantly taken from us, under the justifica- tion of this Proclamation which introduces ourDefence. We v/ish to shew that this Proclamation was a commencement of y^gression and hostility on their part. We do not produce this to justify acts of aggression on our part, but it goes to t IS pro- centiy our to alldw- \v, to Id en- en we always i upon at au I pre- nt, the benefit of which, from the infirmitics of human nature, we may often have occasion to refer to, for our guidance in in- vestigating oftenccs. committed in this remote part of His Majesty's dominions. The course of proceedings in the case of Brown and Boucher will be given to the world, and, upon all future trials for offences committed in the Indian Territory, will be looked up to as an authority the most de- cisive, and it is well entitled to be so looked up to, from the solemnity and deliberation which preceded it. If in the practice of law we are not to be guided by precedent, I would ask, what is to be the rule of our conduct ? If the decision of your Lordships yesterday, upon the trial of a principal, is to be set aside to-day, on that of an accessary upon the same Indictment, I would ask what is the certainty, where the assurance, that to-morrow the decision of to-day may not also be set aside ? We have the authority of your Lordships for our course, and we can not consent to adopt any other with that precedent before us. If your Lord- ships do not feel disposed to enforce your own decision, we shall be at a loss for a precedent, I fear, on every future oc- casion, and such a state of practice would be dangerous in the extreme. Attorne_ij-G eneral. — So far, my Lords, from any danger being to be apprehended from not follotving a precedent, which allows murder in 1816 to be justified by a Proclama- tion to prevent the exportation of provisions in 181 4, fol- lowed up by evidence of a series of aggressions on the one side and on the other ; I say, my Lords, so far from appre- hending any danger to the correct administration of crimi- nal justice from departing from such a precedent, I think the sooner it is reversed, and a practice more consonant to the rules of law and the demands of justice introduced, the better. I would be very far from attempting to dictate what is the proper course to be pursued, but a paramount sense of duty compels me thus to oppose the Defence which it is again proposed to introduce. I go farther, and urge that, although your Lordships did, on the former occasion, allow the Proclamation of Mr. Miles Macdonell to be put in evi- dence, yei: they failed in attaining the length to which they promised to carry the proof of an uninterrupted state of exasperated feeling from that moment till the melancholy catastrophe of the 19th June. All, my Lords, that was shewn on the recent trial was, that aggressions had marked the conduct of both parties. But surely these outrages, in <>' i ', 00 themselves violations of the laWf exposing the perpetrators of them to trial and punishment, can not form any defence for persons accused of murder, even were their frequency such as to amount to an uninterrupted series of aggression. Having, my Lords, so frequently expressed my own con- viction of the irrelevancy of such a defence, I shall oppose it no longer than I consider your Lordships not to have ex- plicitly declared it to be an admissible defence ; whenever I am given to understand that that is your Lordships' decision, I shall bow to it with submission, but, although on the for- mer trial the course was allowed to be pursued which is now proposed to be adopted, yet as the promise under which the permission was obtained was not fulfilled, I think there would be no inconsistency in confining the present trial to the ordinary rules of criminal courts of judicature. Mr. Sherwood. — I ask for this Proclamation to be read. It is the Proclamation of Mr. Miles Macdonell, read upon the former trial. The decision of your Lordships upon this solicitation will determine whether the precedent esta- blished on the former trial is to be followed, or a new rule introduced in opposition thereto. The Proclamation, (see p. 98 of Brown and Boucher's Trial,) was then read. Mr. Sherwood. — Did you, Mr. Bourke, ever hear how Mr. Miles Macdonell came to be Governor of the District of Ossiniboia ? Did you ever see his commission, so as to say by what authority he was a Governor ? Mr. Bourke. — I always understood that he was appoint- ed by commission from the Honourable the Hudson's Bay Company. Mr. Sherwood. — Do you know that they possess any authority to appoint Governors, or by what authority they exercise the right of doing so ? Mr. Bourke. — I have seen the Charter of the Hud- son's Bay Company, which gives the Company that power. Mr. Sherwood. — We will go one step farther back. Do you know who granted them this Charter, which autho- rized them to appoint, or which they say authorized them to appoint, Mr. Miles Macdonell Governor ? Mr. Bourke. — It was granted by King Charles the lid. as I have been told, to Prince Rupert and others, and I believe gives power to the Honourable Company to ap- point Governors in the Territory of Hudson's Bay. Mr, Sherwood, — You never saw a commission from the ^ "*!••!••■. If I m I ii^ri 51 Prince Regent, or his present Majesty, appointing Mv. Mac* (lonell a Governor, did you ? A^r. Bourke. — 1 never did. I have no knowledge of its being necessary that he should have one. Mr, Sherwood. — ^To whom. Sir, did you disclose your knowledge of what had passed in the Indian country ? Did you make an affidavit before any body ? Mr. Bourke. — Yes, I did make an affidavit. I made it before Mr. M*Cord at Montreal, after having disclosed to the Attorney-General all I knew. • • Mr. Sherwood. — Do you know if that affidavit has ever been printed in a book, and given to the public ? Mr. Bourke. — Yes, I know that it has been printed. Mr. Sherxoood. — Did you take it to the printing-office, or give directions for it to be printed } Mr. Bourke. — No, I did not give it to the printer. Mr. Sherwood. — Was your approbation asked to its being printed ? Was you consulted in any way about it ? Mr. Botirke. — No, I was not consulted on the subject. Mr, Sherwood. — Do you know that it is the duty of a Magistrate to keep secret the King's evidence ? Mr. Bourke. — I do not know any thing about the duty of a Magistrate on that head. Mr, Sherwood' — Do you think it his duty to print depo- sitions of witnesses, and poison the public mind against any unfortunate person who may be accused, and thereby ex- pose him to the chance of losing his life .'' AU.orne!j-General. — l do, my Lords, trust that your J.ordships will interpose, and s^op this highly exceptionable examination of the witness. Mr. Sherwood. — And, my Lords, I trust that your Lord- ships will not prevent so cruelly immoral an act from being exhibited in all its deformity to the world. It is, my Lords, nothing but an act of bare justice to the Defendants, that they shall be allowed to shew these efforts to poison the public mind, and corrupt the pure stream of justice by giving the King's evidence to the world, and I contend the De- fendants have a right to shew that these attempts have been made to prejudice a fair trial. A ttorneij -General. — These cruel immoralities have un- fortunately not been confined to one side or party. Pamph- lets and newspapers have been flying about in all directions, most improperly I allow, but, strongly as the Learned Gen- tleman characterises the enormity, it is as fully participated *E 2 I ' \ i:i I i': in by the one party as by the other, and can not, on either side, furnish evidence on the present occasion. Mr» Sherwood. — I resist the correctness of Mr. Attor- ney-General's assertion, and say that I am proud to men- tion, that against us the allegation of having disclosed the King's evidence is unfounded. Though, amongst the Gen- tlemen connected with our side of the question, there are many who are Magistrates, they have never, in the warmth of personal feeling, or in the promotion of personal inte- rest, forgotten their paramount duty as Magistrates. Indeed the book 1 allude to, is the first proof I ever had that any person possessed influence enough to obtain the King's evi- dence, and as it is the first instance, so I hope it is the last, I shall ever witness of any person, however exalted his rank, being able to get hold of and publish the King's evidence, which every Magistrate is bound to keep secret. Attorney-General. — I am not disposed to defend such conduct } but the complaint has very little weight coming from those whose conduct has evinced that the immorality which shocks the Gentleman is not confined to one side. Mr. Justice Boulton. — It is a highly improper pro- ceeding, and exceedingly discreditable, as well as criminal, in whoever was guilty of such conduct. Mr. Sherwood. — I rebut Mr. Attorney-General's charge against us on this score, and say, we are filled with astonish- ment and indignation at such a violation of duty, and in no way participated in the enormity. I shall, however, con- tinue my cross-examination. You are acquainted, I sup- pose, with the late Mr. Semple's hand-writing. Will you look at this letter, and tell me if it is his hand-writing ? (The Letter being handed to the witness), Mr. Bourke. — Yes, this is the hand-writing of the late Mr. Semple, and is addressed to Mr. Alexander M'Doncll. Mr. Sherwood. — I move that it be read. The following Letter was then read. A. MaCDO NELL, Esq. SIR, Fort Douglas, 14M May, I8I6. I take the opportunity of Mr. Seraphim La Mar's return towards QirAppelle, to acknowledge the receipt of your letter of the 51 h inst. The idea of Mr. Robertson making a journey of J 20 miles fur (he purpose of a cunvcrsalion with you, ap|)ears \\6. Ii3 to me wtinlly iiiii(liitiNtiil>i(% wlicti llic utiiir iHirpnsr may bf jii»t Hs ctlecliitlly aiiswrtrd at llit> iir»t point, or at titlicr of tilt* torts. Still \vi>s CHI) 1 lliiiik of dclt<^atiii<; lull power to any man to form definitive arrangenicntH when I inysi'lf am on the spot, and must alone he answerable for them both to fi lends and enemies. In the mean time, my wishes for general tranquillity will ever remain (uirliiinged. I am satisfied with the proofs which remain in uur tiuiius, and seek no more. Should you be nnwiilin;r to meet us here. I leave it to yourself to appoint u spot at a moderate dis- iHure from the Forks for a conference. Whatever plan you may adopt, I icpcuf, that your person and properly shall be considered sacred, unless yo son acting for the North-West Company in OssiNiBOiA. J the vicinity of Carleton House. TAKE NOTICE, that by the authority and on the behalf of your Landlord, the Right Hon. Thomas Earl of you they them up. 57 Selkirk, I do hereby warn you and all your associates of the North- West Company, to quit the post and premises you now occupy in the vicinity of Carleton House, within six calendar months from the date hereof. Given under my hand, at Red River Settlement, this twenty-first day of October, 1814. (Signed) MILES M*DONELL. District of 7 To Andre Poitras, or the person acting for OssiNiBOiA. 3 the North-West Company at Riviere la Souris. TAKE NOTICE, that by the authority and on the behalf of your Landlord, the Right Hon. Thomas Earl of Selkirk, I do hereby warn you and all your associates of the North- West Company, to quit the post and premises you now occupy at Riviere la Souris, within six calendar months from the date hereof. Given under my hand, at Red River Settlement, this twenty-first day of October, 1814. (Signed) MILES M'DONELL. Mr. Sherwood. — I have no farther questions to put to Mr. M*Donell. I am very happy that Mr. Attorney-Gene- ral called him, as it prevents the necessity of my doing so, and I embrace this opportunity, with the permission of the Court, to say that every observation that has been made by me, relative to Mr. Miles M'Donell, is directed only to his public character, or to his public situation, for as a man, as a gentleman, as an upright active magistrate, as an estiniable and valuable member of society, as a brave and indefatigable soldier and ofiicer, no person can entertain a more exalted opinion of another than I do of that gentleman j but I have the most sovereign contempt for his delegated power, and those who gave it him. I hold in the most absolute derision this assumption of authority by a person who is no more a Governor than I am. n the iarl of HUGH M'LEAN, sworn. Examined hjy the Attorney-General. M*Lcan.—l lived at Fort Douglas in 1816. I knew Mr. Semple in that country ; he was Governor there. We had frequently been informed that we were to be attacked by the Half-breeds and North-West people. On the 19th June, as I was coming home to the fort in the evening, I saw an armed force on horseback going towards the Plains. As I • ♦! 58 I I f\ got nearly up to the fort, I saw Mr. Scrapie and between twenty and thirty persons going out of the fort. Attorney»General. — Could you distinguish whether the people on horseback were armed ? McLean. — I saw them at that time too far oflf to say whe- ther they were armed or not ; afterwards I knew they were. Mr. Semple's people were generally armed, perhaps all might be, but I can not particularly jay, for I did not go with them. I was told that Mr. Semple had taken them to see what the people wanted who were seen going to the Plains. After they had been gone some time, Mr. Bourke the store-keeper came back for a cannon, and then I went out. I went with Mr. Bourke, and drove the cannon, which was in a cart. We did not overtake Mr. Serixple and his party. We went on a short distance only with it, and then I returned with the cannon to the fort, by directions of Mr. Bourke. I reached the fort in safety. I was not wounded, but the horse drawing the cannon was. I left it at the fort and then returned. The mounted people were formed in a circle or half-circle, and our people who were on foot were on the inside of the circle; the Half-breeds were formed like a half-moon. I saw both those on horse-* back and on foot, but I did not see any firing between them. Having left the cannon, I went out again, but had not gone far before I met about eight or ten people running as hard as they could, and they were being fired at. I found Mr. Bourke wounded : he had been looking for the Governor, and was called to by a parcel of men hid behind some bushes, to come to Governor Semple, and was then fired at and wounded. AUorney 'General. — Then you reached the fort safe, did you ? McLean. — Yes, thank God, I was not hurt any way. The next day I saw nine or ten dead bodies, and among them was the corpse of Governor Semple; they were brought to the fort in carts by the Indians. I saw Cuth- bert Grant on the 20th, at the fort, with a large party of Half-breeds and others. I did not hear what passed be- tween him and our Gentlemen, but I understood it was about our all going away, and giving up the fort, for we had been asked if we would give it up by our own Gentlemen. Attorney 'General. — Do you know John Siveright, one of the prisoners at the bar ; did you ever see him before? McLean. — Yes, I saw him in the spring at Fort Gibral- tar. 59 Allortiey-General.— Did you see him after the battle? McLean. — No, I do not recollect that I did. Two days Rfter, or on the 23d, we all went away from the fort, and the Settlement was entirely broken up. We went to Jack River House by water. On the day but one after we left the fort, we met a large party in canoes j there were nine or ten large canoes full of people, and we were all ordered ashore, after some conversation between some of their party and some of ours. I saw Mr. Alexander M'Kenzie there, but I do not recollect for the others \ there were, as I un- derstood, a number of the Partners of the North- West Com- pany there, but I did not know them. Attorney-General . — Do you know of any information being given to the Partners of the North-West Company by the people from Fort Douglas, of the affair of the 19th June ? McLean. — No, I do not. I was not near enough to hear any thing that had passed between them. Altorney-G cveral. — You have said that you saw the mounted party and those on foot at a distance. Could you distinguish any of the mounted party, so as to say who they were ? M*Lean. — No, I was not near enough to see who was in the battle. I merely saw them at a distance. ylltorneij'Gcneral. — Were you present at any assembly of Half-breeds, where any speech or harangue was made by any body on the subject of the affair of the 19th June ? M'Lcan. — No, I was not. I never heard any from any body. Cross~Examinationy conducted hy Mr Sherwood. M'Lean. — I do not know who fired first. I know that murders were committed, because I saw the bodies. Mr. Sherwood. — What do you mean by murders being committed ? would you call it murder if you killed a man in battle ? McLean. — No, not if he was killed fairly, but these were not, for they were shot first and speared afterwards, and I don't call that killing a man in battle fairly. Mr. Sherwood. — Would you think it murder to kill a person in defence of your own life, or your property ? M'X/CflW.— No, certainly I should not think it murder to try and save my property, or my life, and if I killed a man in doing so, it would be his fault, and not murder. Mr. Sherwood.— How do you know that these persons 4 a ^ 0, 60 'I f were not defending their lives or property on the 19th June ? M*Lean.—I do not believe Mr. Semple or his people would have meddled with them, if they had not with him. Mr. Sherwood. — Do you know, or did you ever hear^ of any of these Gentlemen having assisted in the murders, as you call them ? do you know that any one of them assisted to commit these murders, as you think proper to call them, or were helping in any way ? McLean. — No, I do not know that any of them did. I have heard a good deal about them. Mr. Sherwood. — What you have heard is not exactly evidence, but I dare say you have heard, and would like to tell us, a great deal: but you may go. JOHN PRITCHARD, sworn. Examined bi/ the Attorney-General. Mr. Prilchard. — In June, 1816,1 lived at the Red River Settlement, at the Colony of the Earl of Selkirk \ I was a settler. I knew Mr. Robert Semple ; he was Governor of the Hudson's Bay Territory in general. On the 19th June, Governor Semple and a number of other persons were killed. We had been alarmed with reports for some time, that the Colony was to be attacked by the Half-breeds. On the 17th, Moustouche and Courte Oreille, another Indian, came to the fort from the Half-breeds' camp, and gave us information that we were to be attacked within two^days from that time, by a party who had set off from Qu' A ppelle, and had stopped at Portage des Prairies, under the command of Alexander M*Donell. There were generally residing at Fort Douglas with Mr. Semple, from forty to fifty men ; that was the usual number of residents. Attorney-General. — Upon receiving this information from the Indians, what did Governor Semple say or do ? Mr. Pritchard. — He heard all they had to say, and exa- mined them very particularly, but said to the Gentlemen that it was impossible, after all their other depredations, that the North- West people could be so bold and unprincipled as to think of attacking the Settlement. He then desired a strict watch to be kept night and day, so as to receive the earliest information of their approach; which was done. He said he could not believe they would be so unprincipled ns to break up the Settlement, and distress the poor people who were settlers, and did them no harm, whatever might be their 19th CI hatred of the Company's servants, (Hudson's Bay Company's servants.) As I was about returning home from writing, I heard a man cry out, " the Half-breeds, the Half-breeds I'* this was about six o'clock in the evening, I should think. Immediately the alarm was given, and I saw Governor Sem- ple take his spy-glass, and go to a place whence he was like- ly to have a good view. I went and looked too, and I dis- tinctly saw a number of persons on horseback going towards the Plains. Shortly after, the person at the watch called out that the mounted party were making towards the Settlement. We saw they were armed. Mr. Seniple then said, " we " must go and see what these people want; let twenty follow " me." Something was said by some person about more going, but he said, ** no, twenty will be sufficient, let twenty •* come with me." About that number took our guns and went along with him. I believe there were about twenty- five or twenty-six. We had not gone far before we obser- ved, beyond a point of wood, that the party increased very much i Mr. Semple, therefore, directed Mr. Bourke to go to the fort, and get a small piece of ordnance, and to tell Mr. M'Donell to send as many men as he could spare, and return as quick as possible. We met a number of the set- tlers running towards the fort, and crying, but we went on. We stopped a little while, but Mr. Bourke being delayed, we went on again towards the Settlement. We had not gone far before we observed the Half»breed party advancing to- wards us. They came up in a direct line, and when they were pretty near up to us, they opened into two parties, and surrounded us in a half-circle or half-moon. As they ad- vanced upon us, we went back to get out of their way. It was not to run away, but we retreated back a few steps ; it was no use to run, they being on horseback, and we on foot ; we then saw Boucher advancing from his party, waving his hand to us, and calling out in broken English, " What do you ** want .? what do you want ?" Mr. Semple directly said, ** What do you want ?'' to which Boucher answered, ** we " want our fort." Mr. Semple replied, " go to your fort.'* What Boucher said then I do not know, as by this time they were close together, and spoke too low for me to hear. What the answer was I can not tell. Attorney -General, — But what you have related you heard distinctly, did you, so as not to be mistaken? Mr, Prit chard. — Yes, I did i 1 heard Boucher make some reply to Mr. Semple then, but I was not near enough to hear what it was that he did say, but I saw Mr. Semple '• i h'^i m ■ < '3 :' t 02 :i I '\ put his hand on the butt of Boucher's gun, and almost im- mediately there was a firing, and I saw Mr. Hohe struggling on the ground, and immediately after I heard a general firing, a sort of irregular volley. jittorney-Gcnerat. — Was it a single shot you first heard ? Mr. Pritchard. — Yes, I heard the report of a gun, and turning round directly, I saw Mr. Holte struggling on the ground, and almost immediately there was a general firing, like an irregular volley, and nearly all our people were either killed or wounded. Attorney-General. — Can you say from which party the first shot that you heard, the single shot, came ? Mr, Pritchard. — I can not. We were in a good deal of confusion, expecting every minute to be attacked, so that 1 could not say from which side it came, nor I never did have any certain information who fired first. I saw Mr. M'Lean rise once, and he was defending himself when he fell a second time, and I believe expired. I saw Captain Rogers rise after he had fallen, and he came running towards me. At that time I did not see another of our people standing, and I said to Mr. Rogers, '• for God's sake, throw down your arms, ** and give yourself up — we shall be murdered here else — wc ** shall be murdered; for God's sake, Rogers give yourself up." He directly threw down his arms, and run towards the party, crying in broken French for mercy, and saying he was their prisoner. A Half-breed, named M*Kay, called him a dog, and said he was one of the Ofiicers of the Colony, and im- mediately shot him through the head^ and another ripped his belly open, uttering the most horrid imprecations. I now almost gave myself up for lost, when I observed a Ca- nadian whom I had known. 1 now begged of him for God's sake to try and get my life spared. I said to him, " you are " a Frenchman, you are a Christian, so am I — you are a " man, you are a Canadian, join with me in begging my *' life." He did, he begged for me, and warded off blows that were aimed at me, and received several himself in pro- tecting me from them. M'Kay, who knew me, called me a little toad, and asked me what I did there, and said he had a great mind to serve me as he had Rogers, but eventually La- vigne succeeded in saving my life, and I was given in to the care of Boucher or Morain, they telling me at the same time that I was a poor little dog, and had no great while to live. I had several very narrow escapes afterwards. Des- champs and a number of Brules wanted to kill me; once Boucher saved my life — once I had to beg Morain to let me h^ 63 the save myself, though I knew the Burgeois did not like me, and after great difficulty and many very narrow escapes, I at last got to the encampment at Frog Plains. Attorney'-General. — Did you see Cuthbert Grant in the battle ? JSJr. Prilchard. — I might have seen him, but I do not know that I did. I saw him that night, and he told me my life was safe, and whilst I was with him that I need not fear. He said that they expected to have surprised the Colony, and then they would have starved out the fort, for they would have prevented any body from leaving it to get provisions, or if they had left the fort, they would have shot them j that having surprised the Colony, they intended at night to have surrounded the fort. Altorney'Gcntral. — Did he say any thing about their bringing provisions down to supply the canoes that were ex- pected from below, that is, from Fort William ? Mr. Pritchard .—No, I heard nothing like that. Allomey-GeneraL — When did you first hear about the object of this journey being to bring down provisions ? Mr. Prilchard. — I never heard that assigned as the cause of their coming down, till I heard it in Lower Canada *, that was the first time I ever heard of it. I know Cuthbert Grant's hand-writing very well, having frequently seen him write, as he was under me for some time when I was in the service of the North- West Company. (A letter being shewn in his hand-writing. Upon mo- tion of the Attorney-General, the letter dated River Qu'Ap- pelle, 13th March, 1816, from Cuthbert Grant to J. D. Cameron, Esq. (see p. 123 of the Trial of Boucher and Brown), was read). Attorneij-Genernl. — Did you, Sir, ever see that letter before, or when did you first see it ? Mr. Prilchard. — It was an intercepted letter, and I have seen it frequently before, but I saw it in Mr. Semple's pos- session before the 19th June. Attorneij-General. — What was done with you ? I mean individually. Mr. Prilchard. — I was taken a prisoner, as I may say, on the 19th June, and was liberated on the 20th. Allomey-GeneraL — When did you first go to Fort Douglas after the saving of your life ? Mr. Prilchard, — I went on the same night. Grant told me whilst I was a prisoner at the Plains, that an attack was going to be made on the fort that night, and that if any re- 'I V- mI M M ; i \y f\ sistance was made, man, woman, and child would indiscri- minately be massacred. Mr. Fraser also said the same, adding, that it had been said they (the Half-breeds) were blacks, ^ and we should see that they would not belie their colour. I begged of Grant to spare the women and children, who, whatever we might have done to offend, could not have injured any body. After a great deal of difficulty, I got him to consent that, upon condition of our all going away, and giving up all public property, our lives should be spared, and I then went to Fort Douglas to carry the con- ditions, many of the Half-breeds being very unwilling that I should be allowed to go, and warning me against the im- possibility of my escaping from them, and cautioning me against attempting it. The terms were not at first agreed to, but after some consideration they were, and we prepared to go away. We went away on the evening of the 22d, having given every thing up to Cuthbert Grant, who gave a receipt for them on behalf of the North-West Company, and we proceeded on our way by water to Hudson's Bay. On the Sl-th we were met by Mr. Archibald Norman M'Leod, and a large party of persons; there were nine or ten large canoes, I should think, of li.em. When we got near, they asked if Mr. Semple was m the party, or if Mr. Robertson was there; they asked in very opprobrious terms for Mr. Semple and Mr. Robertson, and being informed they were not, and also made acquainted with the fate of Mr. Semple and the Officers of the Colony, they enquired if I was there. Being informed I was, we were all ordered to put on shore, and we did so. All our papers and trunks were examined, and such C'f the papers kept as Mr. M'Leod, together with the other i^artners, chose ; and I was made prisoner there. Attornei/'^General. — Was you personally examined re- lative to the affair of the 19th by Mr. M'Leod ? Mr. Pritchard. — Yes, I was, and I told him all I knew. With Mr. M'Leod's party I saw Mr. Alex. M'Kenzie, and I think Mr. M'Gillis, but I am not quite sure about Mr. M*Gillis. After meeting Mr. M*Leod and his party, we encamped at a place called Netley Creek, about two miles lower down; a general encampment was made there. Whilst there, a number of those we left at Fort Douglas, and who had been engaged on the 19th June, came to Net- ley Creek encampment. I was a prisoner, and I can not say • Alluding to the taunts made use of in Robert Scmple's letter of the 23d March, 1816. (seep. 11:5 of Brown and Boucher's Trial). as, let- say the •Ve who glas, >rt Uougias, ai Koutre till Mr, .urge 0' Fort Du how they were receiveJ» u I did i.ot see them received. Cuthbert Grant was ; ot among his party. Fraser WM amongst them, and thi e were se eral whose names I do not recollect, but I know Grant was »iot one. prisoners were sent to Point au Foiitre, h\ Half-breeds and others that came down fro and the others went with Mr. M'Leod to i I believe, but we were not sent to Point avi M'Leod's return from Fort Douglas. I did not return to Port Jvouglas. I remained at Nctley Creek, and I went with Hourke, Heden, Corcoran, and M'Kay, to Point au Foutre, upon Mr. M'Leod's return to Fort Douglas, and staid there till he joined us, when we all set off together, under the direction of Mr. M'Leod, for Fort William. On Mr. M'Leod's return from I'ort Douglas he brought some iicld-pieces and small arms belonging to the Settlement. Cross- Lxaminnliorjj conducted bj/ Mr. Sherwood. Mr. Sherwood. — Did you ever sec the whole account you have been giving us, published in a book, with the affi- davits of the persons who survived the 1 9th June, any where ? Mr. Pritchard. — Yes, I have seen them in print cer- tainly. Mr. Sherwood. — Do you know who published them, Mr. Pritchard .? Mr. Pritchnrd. — No, I can not "ay that I do know. Mr. Sherwood. — As you can not tell who fired first on the 19th of June, of course you will not say it was 7iot your party any more than it was. How happen you not to know .'' Mr. Pritchnrd. — I was more attentive to my own life than to who might fire first, for from the moment 1 saw ihem advance towards us I expected to be attacked. Mr. Slitrwood. — You saw the letter of Cuthbert Grant, I think you say, before. How did it come into Mr. Sem- ple's possession, it being addressed to Mr. Cameron ? Mr. Pritchard. — It was intercepted by our people. Mr. Sherwood, — Do you remember, Sir, on what day Fort Gibraltar was taken j or first, I will ask you, by what authority the letter was intercepted ? Mr. Pritchard. — 1 believe it was done by direction of Mr. Colin Robertson. Fort Gibraltar was taken the 17th March, St. Patrick's day, towards, ox rather on, the evening', of that day. J ■ffi r ;Mi*./j r>6 f-i Mr. Shertoood.'—Thtre was a Mr. Holte, I think you Say, among those who fell in that engagement. Wai he a moderate, peaceable man, or a rash) imprudent) head-strong person ? Mr. Prilchard. — There was a Lieutenant Hohe, a Swede, who perished on the 19th June. He was a very fair, upright man. I can not speak particularly of hit temper. Mr, Sherwood. — ^Would you know his hand-writing if you were to see it, so as to enable you to say whether this letter is in his own hand tvriting or not ? (the letter r as handed to Mr. FJ is that the Mr. Holte 's writing who icll in the engagement ? Mr. Pritchard. — Yes, it is the late Mr. Holte's writing. (The letter from O. Holte, dated Fort Douglas, April U, 1 8 1 6, — sec Brown and Boucher's Trial, page 1 28,— was then put in and read.) Afr. Sherwood. — Who was it addressed to. Sir ? Mr. Pritchard. — It was addressed to myself. Mr. Sherwood. — Pray, Sir, who might be meant by •' Mr. Lofty, who opce injured your character ?" Mr. Pritchard. — By Mr. Lofty, was meant Mr. Colin Rbbertson. Mr. Sherwood. — Mr. Colin Robertson was a very active man in the Hudson's Bay service, was not he ? is he the gentleman who thought proper to steal the letters, or to or- der it to be done ? Afr. Pritchard.— It was by Mr. Colin Robertson's di- rections that it was done. Mr. Sherwood, — Was he a servant of the Hudson's Bay Company ? Mr. Pritchard. — I do not know that he was a servant. Mr. Sherwood. — Do you recollect what it was Mr. Holte alluded to, in that part where he speaks of his passions often getting the better of him, and his wishing them to the devil ? 3/r. Prit chord. — No, I do not, at this distance of tiihe. Mr. Shervood. — By the bottom of the river, where this n\in. of war schooner was to be stationed, what place was meant? Mr. Pritchard. — By it was meant the bottom of the River Winnipic. Mr. Sherwood. — It was at that place he meant to have stopped these canoes from Fort William, had he lived long enough, I suppose : nothing could have passed from or to us S;: si iM; — «i"».._^. w ^he interior without going within the rcadi of this man of Mrar schooner i Mr, Pritchard. — No, every thing must pass that spot. Mr. Sherwood. — It was in April, I think, the letter was written, and instead of giving the North*West rascals, as he calls them, the drubbing (if he could,) he went into this en- gagement in June, his proper glory not being ready for him at the time ; unfortunately for him, the North-West rascals, as he calls them, defended their own property, and gave him a drubbing. VVho, Sir, is this Mr. Pambrun, Mr. Robert- son's olio of perfection ; is it the Mr. Pambrun we had here the other day as a witness ? Mr. Pritchard. — It is the same person, I believe, who was here. Mr. Sherwood. — This olio also found Mr. M'Donell too strong for his veterans, I believe ? Air. Pritchard. — I do not know any thing about that. PA TRICK CORCO RA Ny sworn. Examined hij the Attorney-General. Corcoran. — I was at Fort Qu'Appclle in April, 1816. I was there a prisoner, having been taken, together with .i party that accompanied nie, by some Half-breeds, and car- ried to the North- West fort at Qu'Appelle. Mr. Alex. M'Donell was in charge there, and there was a large collec- tion of persons at the fort from different places ; a much larger number of Half-brecJs were there than, I imagine, usually wore stationed there. Of tlicse Half-breeds whom I saw there, I knew Cuthbert Grant and several others by sight. I knew a good many by sight, though I did not know their names. One Lacerte was there, and Antoine Hoole. I recollect them. I generally heard them call Cuthbert Grant Captain. jltiorn(i/-(if)ieritl. — Did you hear any reason given for so large a number of persons being at Qu'Appelle ? Corcoran. — I generally understood that they were col- lected from diflerent parts, with an intention of going down to attack the Settlement j that was the general talk at the fort. It was not made any secret, that their object was to attack and break up the Settlement. Pangman, or Boston- nois, was there at that time along with Cuthbert Grant, and (Jraut said they would come down to Red River, .ind visit JNIr. Robertson, who should see what they could do. * F 'J J f ' •■'^, f ^y t 'i 1 \ I; a *l If 68 u4l/nrnf7/-GeneraL — "When the party set ofF, did you hear Mr. Macdonell give them any orders, and to whom ? Corcoran. — I did not hear Mr. Macdonell give any orders, but I know that Cuthbcrt Grant had the command. Attorneij-General. — How long were your party detained ? Corcoran. — The rest of our party were soon liberated, that is, in four or five days ; but myself, Jordan, and Mr. Pambrun, Were detained for a good while afterwards. Altortiey'Gentrnl. — Was you well treated while there ^ Corrornn. — No, we certainly were not. I was permitted afterwards to go, under a promise that I would not fight against the North-West Company*. Attornej^'-GeneraL — Did you ever enquire why you was detained ? Corcoran. — I did of Mr. Macdonell himself, and he told me openly it was by his orders. Aitorney^Generaf. — Was the Settlement in want of the provisions which were taken from you at Qu'Appelle 1 Corcoran. — Yes, they were ; when we left they had only sixteen bags. At the time it was taken, Grant promised we should have one boat-load, but upon our asking Mr. JVl*Donell to let it be sent, he refused, and said he did not care whether they starved or not, for it was not his look- out i he began to sacre in French, but I could not say for certain at what, but it appeared to me that it was against me. Attornpy-Genernh — Had Mr. M'Donell agreed to send the boat-load of provisions i Corcoran. — Yes, he did ortcc ; but when I spoke to him he did not recollect any promise of the kind. Attorney-General. — Are you confident that you heard them declare it was their intention to attack the fort ? Corcoran. — Yes, I am sure I heard several say so. I heard them say they would go down, and if they caught Mr. Robertson, they would tie him to a tree and skin him ♦ The following it the curious manner in which Corcoran engaged him- self not to commit any further depredations, or to bear arms against tho North-West Company, beyond what his oath to Miles Macdonell bound him to do, " In consideration of my oath to Miles M'Donell, Esq. J. P. my con- " ditions with Mr. A. M'boneli of the North-West Company are rather " different — but I pledge myself that I will give no further molestations to " any of the persons or property of the Nortii-West Company, further than " such oath actually binds me to do — nor bear arms against them in any "other manner. (Signed) PAT. CORCORAN. " River Qu'.ippdlc, Muy I3th, 181C.'* 69 alive. Cuthbert Grant said, we will send you ofF as wc did before, and if you come back we will send you to hell, for you have no business here. All this took place in May. I was allowed to go upon condition that I did not bear arms against the North-West Company. As soon as I got to Fort Douglas, I told them all that I had seen. In conse-? quence we kept a watch, night and day, to give notice of their appproach. On the IDth June, I had been at work, preparing pickets, and when my work was finished, I went to the house of M'NoIty, and shortly after the alarm was given that some Half-breeds were come. I went on a little way towards the Settlement, but thinking it nothing, I re- turned to the fort. I saw some of our people looking out from the top of a bastion, and I saw the Governor, with a number of people, going towards the Settlement, but I did not go with them. In a short time after I heard the firing of shots frequently. Atlorneij-General.—'Do you know who they were who fired them .? C.rcornn.—Noy I do not. I did not know any thing about it till some of the people came home who had gone with Mr. Semple, and I heard Hcden tell about it. Aftorut i,-Gfiiernl. — You must not tell us what Heden told you, but only what you saw yourself. Did you the next day see any Half-breeds come to Fort Douglas } Cvrrarnh. — Yes, on the 20th I saw a good number come to the fort, and I was then given to understand that we were all to leave it as soon as we could get ready to go, and thai we were only to be allowed to take just what be- longed to us, but that all the public property, with what belonged ro Lord Selkirk, was to be left behind, and that it was on those terms only that our lives were spared. I saw a number of dead bodies, and amongst them was the body of Mr. Semple dead ; they were brought in on the morning of the 20th, about eight or nine of them I suppose. We re- mained till the 24th June, and then we all went away in boats towards Hudson's Bay. The next day we met several canoes* I saw Mr. iVl*Kenzie in a canoe ; I also saw Dr. M'Laughlin at Netley Creek, where we were afterwards sent to, but I am not sure that I saw him in a canoe. I also saw Mr. M'Donald, but 1 do not think he came In the same party that we met in those canoes, but I saw him at Netley Creek. Attorney •General. — Was Mr. John Siveright there ? Corcoraw.-»I do not recollect th?it he was j I do not ' !„''l fiJ,.-L M rT 70 m If ?i !-. think that I saw him there. They enquired for Governor isemple and Mr. Robertson in very violent language, and being informed that Mr. Robertson was not with us, and that Mr. Semple and the others had been killed on the 19th, they enquired for Mr. Pritchard, and when they heard that he was with us, we were ordered to put ashore, which was done. Mr. Pritchard was examined personally, and his pa- pers searched, and shortly after we were all sent to Netley Creek, and some of their party proceeded, as I believe, to Fort Douglas, at least I understood so. Whilst we were at Netley Creek, a party of Half-breeds came from Fort Dou- glas i some of the same that wc had left in possession of it at coming away, and who, I have every reason to believe, had been engaged in the affair of the 19th June. Amongst the persons, I recollect particularly seeing Boucher, and Alexan- der Fraser, the one a Half-breed, and the other a Canadian. They appeared to be very well received by all the Gentle- men, as far as I saw. I saw them walking to and fro fre- quently in conversation, but I can not say that I heard so as to remember any particulars about it. Altorney'GeneraL — Did your people give any account of the matter to these Gentlemen ? Corcoran. — Yes, we gave all the particulars very frequent- ly, as it was 4|iite the common topic of conversation. Some said it was not true ; others that it was our fault, and that of our Bourgeois, and some said they were sorry for it ; but they did not appear to be sorry, but rather the contrary. Attornet/'General. — Do you know which of the persons it was that severally made these observations ? Corcoran, — No, I can not tell which of them it was. Atiornei/-General. — You have not spoken as to Mr. M*GilHs J did you see him ? Corcoran. — Yes, I saw Mr. Hugh M'Giliis. I do not recollect that I saw Mr. Siveright there at all. Cross-examined hy Mr. Sherwood. Mr. Sherwood. — What distance may it be from Qu'Ap- pelle to the Settlement, as your people call it, at Red River ? Corcoran. — I suppose it may be about three hundred miles, but I have no particular means of judging. Mr. Sherwood. — We have heard a good deal about set- tlers i pray, Sir, what do you mean by settlers ? Corcoran. — By settlers I mean farmers, persons who cul- tivate the ground. We call them the settlers. -^i to 71 Mr. SAgraJOorf.— Although farmers, were they accustomed to tat pemican, and glad to get it ? Corcoran. — They used to esrt pemican, and were glad to get it when they were hungry, I dare say. Mr. Sherwood. — Could grain, Sir, be produced in that arid climate, and of what kinds ? Corcoran. — AH kinds would grow there as well as here, and some better, I think. Mr. Shencood. — Do you happen to know where the pickets you had been employed in putting up on the 19th June came from, or who they had formerly belonged to ? Corcoran, — I can not say positively, but I believe they came from the fort that was formerly at the RedRiver Forks. Mr. Sherwood. — Then they were part of the plundered property of Fort Gibraltar, were they not? Corcoran. — I can not say positively that they were^ but I believe they were brought from there. Mr. Sherwood. — Of what description were they ? what sort of wood, I maan ? Corcoran. — Some were oak, and some poplar. 31r, Sherzcood. — You say you did not meet Mr. Sive?? right ; are you sure you met the others ? Corcoran — I met the five, I am nearly cMifident, but Mr. Siveright I did not see- Mr. Sherwood. — Nor did you see Cuthbert Grant, nor Louis Morain, did you ? Corcoran. — No, I did not see either of them. Mr. Sherwood. — I would beg, my Lords, to remark, that these Gentlemen are indicted as accessaries to Grant and Morain ; what passed therefore with other persons, I take it, can not be evidence against them. I merely make the ob- servation, but do noi intend to enlarge upon it, for I believe the witness does not apeak to any thing that passed between these Gentlemen and any body who came from Fort Douglas. Who did you see at Netley Creek from Fort Douglas, that you suppose or know, had been engaged in the affair of the 19th June? Corcoran. — I saw Alexander Frascr, who was a Half- breed, and a Canadian named Boucher, besides others whose names I do not recollect. Mr. Sherwood.— Did you hear them say that it was the fault of Governor Semple, that what occurred at Red River on the 19th June took place, and that if he had let their party alone, nothing would have happened ? Corcoran.-^l ncvcf heard them say it was Governor Sem*? m ^■Al n ''K pie's fault ; indeed I do not remember that I talked wltH them on the subject. JSIr. Sherwood. — You was one of the party that went from Fort Douglas to Qu'Appelle ; do you know for what purpose you went there ? Corrorii'i. — We went to fetch provisions, and to bring down the furs which had been collected Mr. S/itruocd. — Was that your only object? Do you not know of any orders to take the North-West post at Qu'Appelle, in the same way that their Fort Gibraltar had been taken ? Corcoran. — No, I do not. I do not believe there were any orders of that kind given. We were to go to Brandon- house, and from there proceed to the Hudson's Bay fort at Qu'Appelle, if it should, upon consulting those in charge at 13randon-house, be thought advisable, but we had no in- tention of going to the North-West Post on River Qu'Ap- pelle. Air. Sherwood. — That expedition went under command of Mr. Pambrun, who had formerly been an officer in the army } Corcoran. — Mr. Pambrun had the direction of the party. Mr. Sherwood. — Do you know anything of Mr. Pam- brun 's instructions, or who he received them from .'' Corcoran. — I know that Mr. Par urun had instructions, and that he received them from Governor Scmple. Mr. Sherzcood. — And how do you know what his in- structions were ? because his telling you what they were, will not do here for evidence. You said just now you knew there was no intention to take Fort Qu'Appelle : now al- though you had no instructions given you of that nature, how do you know what Mr. Pambrun received .'' Corcoran. — I should know if 1 read them, and I know that his instructions were not to commence an attack, but should he be molested he was to defend himself. His in- structions were contained in a letter from Mr. Semple, ad- dressed to Mr. Pambrun. 3Ir. Sherwood, — That you are sure of? Attornej/-G emral. — I will just mention, as it may save tjme, that I have them in my hand, and shall prove them by Mr. Pambrun himself, whom I propose to make my next witness. Mr, Sherwood.— Then I have done with Corcoran, 9m.*^^aSf^' 7d < f. PIERRE CHRISOLOGUE PAMBRUN, sworn. Examined hy the Attorney- General. Mr. Pambrun.—l vfASf in 1816, in the service of the Hudson's Bay Company. 1 was engaged at Montreal by their agent, and went up to the Red River in their service. 1 was sent to Qu'Appelle to get provisions from the Hud- son's Bay post on that river, and take them to Fort Douglas, I received written instructions from Governor Scmple for my conduct. My instructions were in writing. jiltorn€j/-G'tneraL — Did you, Sir, set off with any hos- tile intentions, or had you any intention of going to the North- West fort situated on Qu'Appelle ? A^r. Pambruiu — No, certainly not. I merely went for provisions, and had no hostile intention whatever against the North-West. /ittortiCij-G (net (iL—'W ill you look at this letter, and say if it contains the instructions which you received ? A^r. Pamhruii.— It does i that is the letter I received containing my instructions from Governor Semple. ( The folloidng tetter toas then put in and read.) Fort Dovglan, 1 2th April, 1816. Mr. Pambrun, SIB, Having received intelligence from various quarters, tliat lire agents of the Norfli-WestCoinpany intend attempting to iiiterrnpt our boats in their passage from Qu'Appelle hither, you will pro- ceed, as soon as possible, with the men whom Mr. Robertson will place under your orders, to Brandon-honse. When there, \oa will concert with Mr. Peter Fidler how far it may be adviiiable to proceed to Qu'Appelle, or remain at Brandon. In either case, however, the power of deciding will rest entirely with yourself. It is my wish that you avoid every act of hostility until fully justified by the conduct of our enemies. The Half-breeds having been ordered to assemble at the French fort at Qu'Appelle, any acts of hostility committed by them, must be considered as com- mitted by inmiediate and authorised agents of the North-West Company, and repelled, or retaliated accordingly. I trust, how- ever, that your moderation, and the cooler reflection of our op- ponents, will prevent any serious disturbance taking place. Should I, however, be unfortunately mistaken, you will remem- ber that the quarrels in which you have before taken a p«)it, may 4 ;«f 74 Ai . i II have been greatly more important, but could not be more I am, Sir, Your's sincerely, (Signed) Robert Semple. Attornet/'General.'--l believe, Sir, you was an officer in the English service during the late war between the United States and England, and the allusion at the conclusion of Mr. Semple's letter, I presume, refers to that circumstance ; does it not ? Mr. Pnnihrun. — Yec, I was, and it is to that circum- stance that Mr. Semple's letter refers. AUornry'Gtriernl. — Did you sec Mr. Semplc after re- ceiving those instructions, previous to your setting out for Brandon-house I Mr. Pambrun. — No,Idid not. Iset out on receiving them for Brandon-house immediately. I went first to Brandon- house, and from there I went on to Qu'Appelle, having con- sulted Mr.Fidler, agreeably to my instructions, and who con- sidered it prudent for me to do so On arriving at the Hud- son's Bay post at Qu'Appelle, I understood that a very large assemblage of Half-breeds and Indians were gathered at Fort Qu'Appelle, and that they were training to the use of arms every day, mounting guard and exercising. 1 was given to understand that their assembling in such numbers, was for the purpose of making an attack upon the Settlement at Red River, and to take Fort Douglas. After I had been a few days at the fort, i told Mr. James Sutherland that I thought it would be better to try and make some arrangement. Mr. Sutherland saw one of their people, and said that he hoped, should they chance to meet us, we should not be harassed or stopped by them. Mr. Sutherland was told, that unless he (Mr. ^ ) would promise that their people should not bt molested below, no promise that we should not, would be made. Mr. Sutherland told them he would undertake, if they were peaceable, no interruption would be given, nor would they be meddled with, unless they interrupted our people. We left the fort of Qu'Appelle, I think, on or about the 5th May, with five canoes loaded with pemican and furs, and drifted down to the Grand Rapids. When near them, I put on shore in a boat. I had not come to shore many minutes, before about thirty men sprang out from be- hind a parcel of bushes, and called to me to surrender, t »., ;*.^'jgpr' 75 did not immediately! but after making resistance some time, finding I should be overpowered, I gave up, and the boats were sent on the other side of the river, after landing the pemican. We were taken to the North-West Fort Qu' Ap- pelle. Cuthbert Grant, Thomas M*Kay, and Pangman Bostonnois, were amongst the party who took us prisoners, and conducted us back to Qu'Appelle. It was an armed party that took us, or we should not have given up. When I got to the Fort Qu'Appelle, I saw Mr. Alex- ander M'Donell, who was in command there*, he came to me shortly after my reaching the fort, and took me to his house, and I had supper. I saw a number of them, the people who had taken me a prisoner, at the table, and Mr. Alexander M'Donell was there also. I asked Mr. M*Donell, by whose authority I had been taken pri- soner, and he told me that it was by his ; that he had sent the party which followed me, and had directed them to bring me back. I found at this fort a very great number of Bois-brules, who had come from different posts, some of them from a very great distance, as far as Cumberland- house. Mr. Macdonell said, I had been taken in retaliation for Mr. Robertson having taken Fort Gibraltar. The object of this large assemblage of persons from distant posts, was talked of freely and openly, that it was to go down and root out the Settlement at Red River, and take Fort Douglas ; the object was not hid. It was the common conversation at the fort, that they were going down. I heard that Mr. Macdonell said the affair of last year was a trifle, or as nothing, to what this year should be ; that the Half-breeds and North- West were now all as one, and if any resistance was made to the Half-breeds, that they would rinse (drench) the lands with our blood. I heard them frequently talk together of going down to destroy the Set- tlement, and Cuthbert Grant amongst others. At the time Mr. Macdonell told me that the North-West people were sent to stop me, in retaliation for Mr. Robertson taking Fort Gibraltar, he said he would starve the Hudson's Bay ser- vants and colonists, and make them surrender. After being kept there prisoner for some time, we all left Qu'Appelle together. I ought to have mentioned, that the people who were taken with me had been sent away, a promise being obtained from them that they would not serve against the Colony (North-West, I mean). After setting off, we drifted down to the place where 1 had been made prisoner and robbed ; and the provisions, &c. which had been landed, \) V i I I ij I ' /. IW 70 i ft 'i / were taken into the boats, and we proceeded to the I'orks of Qu'Appelle, where wc encamped. We were met at this place by Alexander Macdonell, who had two boats. At the Forks we met a parcel of Indians and Half-breeds, and Mr. Macdonell made a speech to them, explaining that the party were going down to attack the English, (the name by which the North-West people always call the Hudson's Bay people) and drive them away, or if they made resist- ance, rinse (drench) the land with their blood. He said to them, ** My friends, I address you shamefully, (with shame) *' for I am in distress that 1 have not a pipe of tobacco " to give you, but all our merchandize and provisions have " been taken by the English, who are our enemies and *' yours, as they have taken your lands — the purpose of my *' speech to you is to tell you, I and my young men are " going down to chastise these people, who have robbed us, ** and who are deceiving you j they ttll you they will culti- " vate your land, but they are driving the buffalo from it, ** and then you will be miserable. We arc now going down ** to drive them away, and shall be glad if you," (speaking to the chief) " and some of your young men would join us, *' but if you do not come with us, wc shall go nevertheless, " and if they make any resistance, we will rinse your land with their blood." That was the purport of his speech ; [ can not say for the exact words, but that was what it meant. It was repeated in Saulteux Indian byPangman and Primcau, who interpreted what Mr. Macdonell (who spoke I rench) said. The Chief said he should not go himself; as for his young men, they might do as they chose, but they did not any of them go, as I believe ^^ e remained about twenty-four hours there, and then went on towards the Grand Rapids of Assiniboin River, the Half-breeds ge- nerally by land. When we arrived there, a party was sent to Brandon-house, and among them Cuthbert Grant and Mr. Macdonell went. I was left at the Grand Rapids at that time, but remained a prisoner. In the even- ing, about seven or eight o'clock, a horse was brought by Alexander Fraser and Taupier, and I was told I was to go to the post at Brandon-house. I accordingly went. When I arrived at their fort, or got near to it, I saw a great mob of people about the gate with arms. My horse was frightened, and would not pass through the crowd, so I was obliged to dismount. As I was going into the gate on foot, several of the persons presented their guns at my head, and I was ap- prehensive were going to shoot me. When I saw ^Ir. ^hc-. « en- by to n I of ted, to of 77 tloncll, which I. did presently after, I complained to Mm of this treatment, and of the insulting language which thejr made use of to me, but I got no redress, though he said that he would speak to them about it. I saw there a quan- tity of furs, which I knew came from Brandon-house, be- cause I had seen them there a few days before, and 1 saw a grerft quantity of other things that I knew came from Brandon-house; and shortly after, I saw two of Mr, Fidler's men prisoners, and I then learnt that Brandon-house had been pillaged by the party that had left us, as I before stated. The Half-breeds were here divided into different parties, and leaders appointed to them. Cuthbert Grant, Antoine Hoolc, Lacerte, Alexander Kraser, and Seraphim Lamarre, were appointed to act under Alexander Macdoncll, who had command of the whole. This being done, they set off for Portage dcs Prairies, part of them going by water and part by land At Portage des Prairies, our property, (that is, the pemican,) as well as theirs, was formed into a sort of bat' tery, and two brass swivel pieces of cannon, which had been stolen from the Settlement the year before, were mounted. We encamped at Portage des Prairies, and remained there two days. On the 18th June in the morning, the Half- breeds, or a great part of them, at least about sixty to seventy, with a few Canadians, armed with guns, pistols, spears, and lunces, set out, under the command of Cuthbert Grant, to go to the Settlement at Red River. About tliirty staid with Alexander Macdonell, and among them I re- mained, 'i'lieir blacksmith was employed in making spears, and I was told tlicy wore to be used against the English, whom they were going to drive out of tlic river. On the 20th, we heard of the party that had started. A messenger arrived from Cuthbert Grant in the evening, one Alexander 'J'riquet ; it was not the messenger that was expected. Upon seeing him ripproach, Mr. Alexander Macdonell, Allen Macdonell, Sivcright, Lamarre, and others, went forward, and seeing it was a messenger from Grant, they gave three hu77as, with their hats. When he came nigh the canjp, they enquired " qneUe nouvelle," and upon being told th\t Mr. temple and twenty or more others had been killet', tlicy huzzaed and shouted for joy, most particularly Siv?> right, Lamarre, and Allen Macdonell ; them I distinguished particularly. Mr. Alexander Macdonell went to give the news to the other people, and I heard him say, " Sacre vom de JJieu ! bonnes nouxcllcsy vingt-deux Anglois de tues.'''' Bostonnois Pangman enquired whether there were anv killed on the side of the Half-brccds, and being told ,r ^ i , f. II J n t U . 1' n. 'A you see Mr. M'Lcod at Fort Douglas in his capacity of a Magistrate i Mr. Pambrun. — I was taken before Mr. M'Leod when he was in the room formerly occupied by the late Governor Semple} but I do not know for what, as he did not appear to wish for any information, but what he got from the Half- breeds or others of his own party. Attorney-General. — Did these Gentlemen know of the affair of the 1 9th June, and that the persons you found in possession of the fort upon your arrival there* had been en- gaged in it ? Mr. Pambrun. — Yes, they must have known it, because it was the general topic of conversation \ nothing else was talked of. Attorney-General. — Did they appear displeased with the Half-breeds and others who had been engaged in that affair ? Mr. Pambrun. — No, not at all, quite the contrary } they appeared pleased, and rewarded them ; they dined constantly at the same table, and were always together. A council was held after Mr. M'Leod arrived, and some few bales of clothing were brought out, and given to them. The Half- breeds gathered together, and Mr. M'Leod made a speech to them, thanking them for what they had done, and gave them presents of clothing ; and as there were more persons than there were suits, those who did not get them at that time, were promised they should have them when the autumn canoes arrived. Attorney-Generah — Was you at the council ? Mr. Pambrun.— NOf I was not j they would not let me, and it was not my business to attend a council of murderers, but that was what all who did attend it, said was the nature of Mr. M'Leod's speech to those that had helped to murder Governor Semple, viz. that he did not expect to have met so many with Mr. Macdonell, that they were his kinsmen, and had helped them in their time of need, and he had therefore brought clothing for them ; but as there was not enough for all, those who wanted them most must take what were there, and the others should have some equallv good when the fall canoes came up. I saw a capote ata feathers that one came away with, and he told me it was for the 19th. AHorney-General.-^Hid. you hear any particular con- versation between the Gentlemen and any of the Halt-breeds engaged on the 1 9th, shewing their approbation of the con- duct pursued by them on that day ;' ■\ f 1 i.: r I I i} r. jlfr. A/m/. 1 i 1* P i Vi 1 ' I U'i Selkirk, did they not ? but you say you was not among thr number ? Mr- Heurler. — Some of my former comrades did enter into the service of Lord Selkirk, and were to become settlers, but I di! not enter his service. Air. Sherwooft. — Did you never receive money for your subsistence from a certain person on account of Lord Selkirk ? Mr. Ileurter. — I certainly have received money for my subsistence. It is not to be supposed but I must have a living found me by somebody, as I have been upwards of two years under detention as a witness. Mr. Sherzoood. — Did you not make a long journey with Lord Selkirk from Red River through the Mississippi, round by Washington, and through the United States, to Canada? Mr. Jleurter, — Yes, I did accompany his Lordship. Mr. Sherwood. — In what capacity did you travel with him ; was you his valet, or what ? Mr. Heurter. — I did not travel as his servant. Mr. Sherwood. — In what capacity did you travel with his Lordship ; was you his companion, if not his servant ? 3Ir. Ileurter. — I was not Lord Selkirk's servant. I travelled with him as a companion j I certainly was not his servant. I went in his company. Mr. Sherwood. — What rank had you in the army, Sir ? I do not mean under Buonaparte, but among the De Meurons .' {Mr. Heurler not immedialelj/ answering the quesiion J, was not you a Serjeant only ? Mr. Heurler. — 1 was a Serjeant. Mr. Sherwood. — So then, the travelling companion of the great Lord Selkirk turns out to be a recruiting Ser- jeant of the mercenary De Mcuron regiment, which was formerly in the service of Buonaparte : he was a servant to the North-West Company, and deserted from them to be- come his Lordship's travelling companion — Attorney-General. — 1 really, my Lords, consider such remarks highly illiberal and unjustifiable. The witness does not represent himself as the companion of hord Selkirk, but that he was in his company, or rather accompanied him. It being insinuated that he was a servant, he said he did not travel with Lord Selkirk in the capacity of a servant, but that he accompanied him ; with reference to his military ser- vices, he was clerk to the regiment, and is i very decent re- spectable man.— W"as not you clerk to the Meuron regiment ? ft . 5 V f ' 0,3 such does but It not but ser- ntre- oent ? > Mr. Jleurfer. — I was clerk to the regiment. Altornei/'C cneral. — You do not mean you was the par- ticular companion of Lord Selkirk, but you travelled in uis company, and not in the capacity of a servant i Mr. Jleurter. — That is what I mean. Attornei/'General. — ^That in the case on the part of the Crown. It being ten o'clock, P. M. the Court adjourned till nine o'clock, A. M. to-morrow. Saturdat/i 3lst October, 1818, present: His Lordship Chief Justice Powell, The Honourable Mr. Justice Boulton. The Court being opened in the usual form, and the Jury called over, the trial which commenced yesterday was re- sumed. Mr. Sherwood. — Bcforo I enter upon the Defence of these Gentlemen, there is a point to which I am desirous of calling your Lordships* attention, because it is one which it appears to me indispensable that I should not misapprehend your Lordships' opinion. It is, my Lords, as to the right of the Jury to decide upon the evidence before them upon the whole case, one branch of which is, where the ofFence was committed. I submit, my Lords, that whether the ofFence was committed within or without the Province, is a point that could not be argued in abatement, from its being a matter of fact, and therefore of right belonging to the Jury to decide, and to the Jury only. I conceive that, upon a point of law so well established, I should be unnecessarily trespassing upon your Lordships' time, were I to refer to au- thorities. I will merely mention, that in Tremayne's Pleas the question is fully considered. To be within the jurisdic- tion of this Coiu't under the Act upon which these trials are taking place, we know it must be committed " in the In- " dian Territories, not within the limits of either of the " Provinces of Lower or Upper Canada, or either of them, " or of the jurisdiction of any of the Courts established in those Provinces, or within the hniits of any civil govern* ment of the Lhiitcd States of Auiciica." Relative to the (t (t 91 t'nltrtl Siafrc of Amcrira, or the Lower Province, 1 do not intriicl to say any thing. 1 bliall confine my observations to the boundaries of the l/pper Province. The constitution of Upper Canada tells us its boundaries precisely, so that there can be no dllKculty in following tliem, thougti there may be difficuhy in determining what was commonly called or known by the name of Canada, which must be defined be* fore the limits of Upper Canada can be accurately ascer- tained. The boundaries are " to commence at a stone boundary on the north bank of the Lake St, Francis, at the cove west of Point au Uodet, in the limit between the township of Lancaster and the scigncuric of New Jjon- gueil, running along the said limit i.i liic direction of north thirty-tour degrees west to the westernmost angle of the said seigneurie of New Longueil ; thencr, along the north-western boundary of the seigneurie of Veaudreuii, running north twenty-five degrees east, until it strikes tiie Ottawas River, to ascend the said river into the Lake Tomiscanning, and from the head of the said lake by a line drawn due north until it strikes the boundary line of Hudson's Bay, including all the territory to the westward and southward of the said line, to the utmost extent of the country commonly called or known by the name of Ca- nada." "What constitutes Canada at the present moment, and what constitutes the Province of Upper Canada parti- cularly, can not, I conceive, be decided till it is settled what was the country formerly called or known by the name of Canada. Now if Canada before included all tliis country between Lake Winnipic and Red Lake, then the spot at which the offence is said to have been committed is in Upper Canada, because all the country to the westward and south- ward of a certain line, to the utmost extent, commonly called or known as Canada, is included in this Province. I do not say that this country was so considered, but Mr. Attorney- General has not shewn that it is not a part of Upper Canada*, . and I contend, before he can ask tor a verdict agp.inst the Defendants, it is his bounden duty to establish the offence to have been committed within the jui isoiction of the Court. Tiie question might be started, is it not in the United States? It therefore is incumbent upon the Attorney-Genefal to shew where the crime was committed, because, 'f it was committed within the limits of the United States, we have not, according to the Act itself, any power of holding a Court, or taking cognizance over an offence comraiitted thc-ein. It is one of the special provisions of the Act, that it <( «< (C ti (( <( river, and so futh. The Treaty of London, in 1794, declares it to be ancertain whether the River Mis-- sissippi extends so far to the northward as to be intersected by a line drawn due zcesi from the I ike of the Woods in the manner mevjtioned liX the T ..ity oi 1783, and provides for a survey to take place un - ' Commissioners duly ap- pointed to ascertain the poinv No step, however, had ever been taken upon this «"'bj''xt, and the b ;^ndary to the west- ward of theLake of tl c V*. oods remains completely unsettled, as the Treaty of Gl cut takes no notice what ovct* of the boundary line in this quarter. Until a line is driiwn to the source of the Mississippi, it is, I consider, almost impossible to decide what are the limit? of the United States of America ; and were that done, it might appear that neither this Court, nor England herself, ][ otsosses any jurisdiction over the of- fence charged to have been committed. The very first question, I take it, is this, is the place within our jurisdiction i! for if not, we are only wasting time in proceeding with the trial. To ascertain whether it is or not, we see at once the importance of having established boundaries. Chief J i!'* ice. — I do not think this a proper time to dis- cuss a que ^ .11 relative to jurisdiction ; and it will be a mat- ter of serious consideration to the Prisoners' Counsel, whe- ther it may be proper to move it at all. My, Sherwood. — I believe, my Lords, that the present is th proper time for me to introduce the subject to your iiordships' notice. Your Lordships are aware that I could I i I r.. I 96 SI 1 'It I raise no question of jurisJiction in arrest of judgment, and that I could not argue it in demurrer, it being a matter of fact, and one which I consider the Attorney-General bound to satisfy the Jury on, before he is entitled to ask for a ver- dict of guilty. But, as I do not think it will be necessary, I shall not press the question. Abandoning, therefore, all dis- cussion on the topic of jurisdiction, I remark, that the dif- ference can not be too frequently adverted to between the situation of these Defendants at the present moment, and what it would be, bad any principal felon been convictedi because this Jury have to recollect, that no evidence can be adduced against accessaries till they are satisfied of the guilt of the principals. The first question is, has a murder been committed by Cuthbert Grant or Louis Morain ? that must be answered affirmatively, before any evidence can be consi- dered as bearing against any accessary. Atlornetj-GenernL — I beg, my Lords, to interrupt this discussion, as its object is too apparent to escape detection. The Learned Gentleman is well aware that he is not entitled to address the Jury, and certainly these observations can be considered in no other light, as they have no reference to any point of law. On them, undoubtedly, the Learned Gentleman is entitled to addreas your Lordships, but this is a direct addiess to the Jury, which I am confident the Court will not permit. Air. bherwood. — I have no desire to address the Jury, or to do any thing which is irregular, any more than the King's Attorney-General. I was merely opening to the Court my line of Defence ; I consider the question of jurisdiction highly important, but I shall defer it, and proceed to call my wit- nesses. DEFENCE. JJMES TOO MEW swortu Examined hij Mr. Sherwood. Toomey. — I was in the Hudson's Bay Company's service in 1814-, under the command of Mr. Miles Alacdonell. I know of a Proclamation being issued by Mr. Alacdonell. 1 did not read it myself, but I heard Mr. Vicker read it, 97 It, and explain the tenor of it. It was to prevent pemlcan going out of the country about the Red River. Mr, Sherwood.— Were the people generally satisfied with it, the Half-breeds and the hunters ? Toomci/. — No, they were very much dissatisfied with it indeed. Mr. Sherwood. — "What did the Proclamation say was to be done, if the provisions were attempted to be taken out as usual ? Toomey. — That it was to be seized and taken to t'ort Douglas. I know of two train-loads being seized by our people from some of the North- West Company's servants in the spring of the year 1814, for I was one of the party. Mr. Jiiaiice Boullon. — You are not obliged to answer any questions that may lead you into difficulty. If any such are put, you may refuse answering them ; and if they would, by being answered, bring you into trouble, the Court will protect you. Mr. Shtriuodd. — Do you know where these people ob- tained the dried meat called pemicaVi which your party seized ? Tuoniey. — I was told by a person named M'Cauley, that they had bought it of the freemen, not the people of the Settlement at Red River, but of the freemen, or the people that hunt. Mr. Shrriv)()d. — Do you know if, previous to 1814, the I^orth- West vJompany had been accustomed to obtain pcmi- can from these freemen, as you term them ? Tooiiiej/, — Vcs, I know that they had been in the habit of trading with the Company. Air. S/z^^/cfOor/. — But shortly after this Proclamation, you know that they were prevented, and their peraican was seized ? Too me I/. — Yes, it war. \^''e were sent to seize it under the command of INIr. Warren from Fort Dacr, where Mr. IMilcs M'Doncll comra;andcd, and we did seize it under his orders, and those of iMichacl M'Doncll. Early in spring time, about the middle of March, we were sent for by Mr. Miles M'i)onell, and lold to be ready to go when the snow was off, a number of miles, on the Plains, to search for provisions amongst the freemen, and that we were to be furnished with arms and ammunition. The next day we were supplied with them, and a party of fourteen or fifteen of us went with Mr. Warren ; Mr. Miles M'Donell saying he would not be long In fcUowing us. Two or three nights m >.' M l,i 98 h4 after leaving Port Daer, we slept in the tents of some free- men, and met there with Mr. Michael M*Donell, a clerk of the Hudson's Bay Company, and also some of the servants of the North-West Company. The next morning we saw them load two or three trains with provisions ; we were then ordered to load our muskets with ball, and fix our bayonets j having done so, we were put into rank by Michael M'Donell, and being armed, we stopped it from being taken by the North-West Company's servants. We were all armed. When they were going to take it away, we were drawn up in rank with fixed bayonets, and they, finding no way of escape with it, were obliged to put it back on a stage from which they had taken it to load the trains. At the time of stopping it we expected Captain Miles M'Doncll every minute, but I was sent for him by Mr. Michael M'Donell, and to tell him what he had done. He sent word to Mr. Michael M*DoneU to keep them In his possession till he should come himself, which he did. 1 here were two train-loads, if not three } I am sure there were two, and I think three. WMl I HUGH SrrOlWS, saom. I Examined by Mr. Sherwood. Siunrds. — I was rn the Hudson's Bay Company's service the whole of the year 1814. I heard of a Proclamation issued by Mr. Miles M'Donell in that year. I never saw the Proclamation ; I only heard of it. I know of one boat- load of provisions being seized by the Hudson's Bay Com- pany's people ; the provisions were on shore, and not in a boat J but they were about a boat-load in quantity ; it was not in any body's possession in particular at the time we took it. A party of us were sent by Captain Miles M*Donel! to go and look for provisions, which he suspected were being sent away. We went armed. I had a gun and bayonet, and ball cartridges. A place was pointed out to us where the North -West Company had hid a quantity of j^rovisions, nnd vre went to it, and found about ninety-six or ninety-seven bags of pemican, which we took, and sent to !• ort J)ougIus. The bags are made of skins, and weigh, when packed, about ninety pounds each. I have no know- ledge of any other seizure of provisions being made. I know that cannon were planted, under the orders of Mr. Miles M'Donell, on the banks of the Assiniboin River. They were placed there to prevent the North- West canoes at ^^' V 99 and boats from passing into Lake Wlnnlpic, and so Into the interior, or below, as they might have occasion. Mr. Sherwood. — Is this the source from which the North- West traders had been accustomed to draw their provisions ? Swords. — Yes, it is ; they always used to get them there. Mr. Shtrwood. — Do you know of any other place where they could get them than about the Red River ? Stvords. — No, I do not. I do not think there is any other, at least for a great distance. WILLIAM WALLACE, sworn. Examined by Mr. Sherwood. Wallace. — ^I was in the service of the Hudson's Bay Com- pany the whole of the year 1814. I know of a Prodama- x-on being issued by Mr. Miles M'Donell in that year. I ^.eard it read by Governor Auld at the fort at the Forks of Red River. It was to forbid provisions being taken away, upon pain of their being seized. Governor Auld, at the time of reading the Proclamation, told us we were not to think our own thoughts, but to obey our masters, right or wrong. Some of the people, upon hearing that provisions were to be stopped, expressed an unwillingness to be em- ployed in stopping them ; and then Doctor Auld said it was not for us to think our own thoughts, but it was our duty to do whatever our masters ordered us, whether right or wrong. Mr, Shernvocd. — Do you know of any provisions being stopped and taken possession of by your people ? Wallact'. — Yes, I know of a quantity of pemican. ISJr. Sfieiivcod. — How do you know of it; was ydu one of the party sent to take it, and do you remember what quantity there was ? fP'aUace. — No, I was not sent to take it. I was working at the time at a fort that was building, so as to prevent the Xorth-Wcst canoes going down the river, but I know that about ninety-six or seven bags, of about ninety pounds each, were taken, and brought to Fort Douglas, for I helped to carry it up to the store. l\Ir. Jusiivv lioulioit. — Is this the same lot that was sworn to have been stopped and taken by the last witness, or is it another transaction ? Mr. Slier ivood. — It is the same fact, my Lord. Was you, Wallace, ever at the Saskatchawan River, or do you know * H 2 100 if buffalo arc taken between the Red River and Saskatcha- wan .' fi'allace. — I never was at the Saskatchawan ; but I have always heard that they were not met with after leaving the Red River country for a very great distance. Air. Shertvocd. — You have been at Hudson's Bay, I believe j are the buffalo met with between the Red River country and Hudson's Bay, to your knowledge ? Wallace. — I have been at Hudson's Bay ; but there are none between it and the Red River country. Mr. Sherwood. — Then, if the traders in those parts do not obtain supplies from there, I suppose they can not get them at all. Wallace. — That is the only place I ever knew them to be got from \ they always used to get them from there. JAMES PJNKMANi sworn. Examined hy Mr, Sherwood. Pinkman. — I was in the service of the Hudson's Bay Company in 1814, and had been for a good while. Mr. Sherwood.— Did you in that year hear any thing of a Proclamation of Mr. Miles M'Donell, usually called in that country Governor M'Donell ? Pinkman."! believe it was in 1813 that I heard of it. I heard of it at Pembina. A/r. Sherwood. — Do you know of any provisions being taken at Pembina by the Hudson's Bay people ? Pirtkvmn. — I do not at Pembina \ but at the fort near Brandon-house I do. I was one who went for it. I and four others went with Mr. Spencer to the North-West fort near Brandon-house, and cut down the pickets, and drew the staples of the locks, and took away about five hundred bags of pemican. We cut the pickets, and destroyed the locks, because those who were in the fort refused us ad- mittance. We asked, that is, Mr. Spencer did, to be let into the fort, which was refused, and we cut the pickets. Mr. Justice liouUvn. — All this is of no manner of con- sequence to the charge against the prisoners \ what if five hundred bags of pemican were taken, is that any justifica- tion to go armed, and take the lives of people, because they had done wrong P 101 In- [a- |ey j\fr, Sherwoou. — I think, my Lord, that this testimony is highly important. I should think, if I heard that a man yesterday killed another, and that it was likely he would attack me, it would furnish very good ground for my going armed Our gomg armed was to protect our property, which had been frequently attacked, and taken from us; and I think, with great deference certainly, that I am not exceeding the necessary limits of evidence, in examining the witnesses to the fact of our property having been taken from us by the most violent means. Do you know of a quantity of pemican being seized by your people, a very large quan- tity, and under what circumstances ? Pitilcininu- I know that there was a very large quantity, as much as five hundred bags, taken from the North- West fort at Brandon-house to the Hudson's (^ay fort. Mr. Spencer, myself, and I think four other persons, went to the fort; but first Mr. Spencer went, eirhcr alone or only one person with him, leaving us at the Hudson's Bay fort, called Brandon-house •, and on his return, a messenger was sent to Fort Douglas with a letter to Mr. Miles M'Uonelli and on th. return of the m sscnger we all went to the Nortu- West fort, and demanded admittance, which v/as refused. We then cut down a number of the pickets, and got into the fort. We asked where the provisions were kept •, but they not telling us, we broke into the store, by drawing the staple of the lock and found about five hundred bags of pemican, which we took away. Mr. S e>iv (I. — You have resided in that country some time ; had the North- West traders been accustomed to draw their provisions from thence ? Piiil. !/>■' . — I know that as long as I have been there, and before, they were accustomed to draw their provisions from that country ; and I do not think they could get them any where else. Mr. Shctivood — Did you hear any thing about raising a troop of cavalry, or a company of ho-se ? Pinhviin.—l heard Mr. Miles M'Donell say he would raise a troop of cavalry, and scour the Plains ; and that he expected they would soon Le strong enough to drive those damn'd North-West out of the country. Mr. Justice Boulion. — When did you hear Mr. M'Donell say this ? Pinkman. — In the winter of 1813. Mr. Justice Bonlton. — Was every thing quiet then ? Pitikinan.^Z\ery thing was quiet in 1813, and duriug 102 the winter, till the Proclamation. There was no disturb- ance till the Proclamation appeared, and was acted upon. (Mr. Sherwood stating that he had finished with Pink- man, the Court inquired of the Attorney-General if he had any questions to put to the witness). AttorneyGeneral.-'^ot any, my Lords; I consider all the questions on the examination in chief as completely irrelevant, and therefore do not put any questions in cross- examination, nor do I intend to put any to any witness on the subject of seizing provisions. Mr. Sherwood. — I entertain a directly contrary opinion to that of the Attorney-General, for I consider them very relevant, and very important, highly important, to the substantial justice of the case. MARTIN JORDAN, sworn. Examined hij Mr. Livius Sherwood. Jordan. — I was in the Indian country in ISH. I kno\^ that there was a battery at a distance of about three miles from the fort ; it was on one bank only, and not on the banks of the river j it was on the north side of the river that they were placed ; there was no particular battery more than the cannon were placed there, and men were kept to watch that the boats belonging to the North-West Company did not pass. Mr. Ijivius Sfierzsood. — Do you know of any arms liavingbeen taken from the North -\V est Company by your people ? Jordan.- -Yes; I know that a box of arms was taken. I saw them in the canoe, and afterwards at our fort in the store. Mr. JJvius Sherwood. — Was there a battery below Fort Douglas ? Jordan. — Yes ; there was one at the distance of .about two or three hundred yards below it, on the north side. Air. Livius Sherwood.-^Do you know of any body being taken prisoner ? Jordan. — Yes ; I know our people took a person pri- soner j Mr. House, I believe, prevented him from going away : I understood it was Mr. House, and he was in the service of the Hudson's Bay Company. Mr. Livius Sherwood.— -Had you occasion at any time to hear Mr. Miles M'Donell drink any particular toast .'' ^'' \W ■ort bout [ody |pri- )ing I the lime 103 Altorney-Genernl. — I object to the witness being per- mitted to answer that question. It certainly can have no bearing upon the case j and the only purpose for which it can be put, is to place a very serious subject in a ludicrous point of view. Mr. hrius Sh< rwood.—l beg the Attorney-General to permit us to put our own questions ; the present, however ludicrous it may appear to him will expose a circumstance that shews the wish entertained for our destruction j and trifling as such a circumstance may at first appear it will turn out one of those trifles which powerfully shew the real dis- position of a person, and that is my object. Mr. M'Donell .acted as Governor to this famous Settlement, and was the great cause, in our opinion, of all the melancholy train of events that have occurred in that country. We commence to-day our Defence with his Proclamation, which he says, and the witnesses on the part of the Crown say, was dictated only by regard to the interests of the Colony, and to prevent them from starving j we, on the contrary, say, that the object and effect of that Pnclamation being enforced, would be to have starved us. and consigned us to destruction. I put this question to the witness to shew, and his answer will shew, that the wishes of Mr. M*Donell for our destruction were so hearty, that he could not refrain from giving it in toasts. I now ask the witness the question again. Did you hear Mr. M'Donell at any time drink any particular toa-^-t relative to the North -West Company ? Jonhin. — Yes, I heard him drink destruction to the North -West Company. He drank it in his own language, which is Gaelic. I am sure I heard him drink it. Mr. Liviu^ Sherwood. — I hope the answer has satisfied the Court of the importance of the question, as it completely establishes, as we think, the spirit of hostility which, we say, dictated the sure means of our destruction. 1 shall not, however, detain the Court with any remarks on the evi- dence i ^o you know of any person being sent to Qu'Ap- pelle from Fort Douglas with the intention of taking Mr. AI*Donell and his people ? Jordan. — I cannot say whether any were sent or not. X was not one that went, if any were sent. Mr. Lhiun Sherwood. — Do you know whether Fort Gibraltar was taken ? Jordan. — I fancy it was taken, for I was there at the time. It was in March 1816 that it was taken, but it was not de» stroyed then i that took place after. I 15 U % J? 101 Mr. Livius Sherwood. — You are sure it was taken In the Marcli preceding the battle of the 19th June: do you know if it was destroyed before the battle ? Jot-dan. — Yes, it was. It was taken down, and sent to Fort Douglas before the battle. JUr. I^irius Sfirrw ><»'/. — Do you know of any goods being taken away frotn Fort Gibraltar, at the tirne it was taken f Joi'dan. — Yes, they were loading goods at the fort, which were afterwards taken to Brandon-house by Mr. Lemoine, who obtained leave to trade there. Mr. Lemoine, I believe, belonged to the Hudson's Hay Company. AJr. Livius Shtrwood. — Do you know of any bales of furs being taken by your people, and what quantity ? Jordan. — No, I cannot say that I do. I know of some furs being there ; I went out, and when I returned I found they were gone, but I cannot say where they were taken to. I heard they were taken. #1 1 J^ liila^ FRANCOIS TJUPIEIf, sworn. Examined through the Interpreter, bjt/ Mr. Sherwood. Taupier. — I know that Fort Gibraltar was taken in March, 1816, from the North- West Company by the Hud- son's Bay Company's people, for I was in the fort at the time. The Hudson's iiay people came to the fort about seven or eight o'clock, one Sunday evening, in March, and got in. 1 hey bent the bolt of the gate, and so got in. They had guns with bayonets, pistols and cutlasses. They rushed directly to the groat house, in which Mr Cameron, v.'ho commanded at Fort Gibraltar, lived. Mr. Cameron was a Partner of tlie North- VV est Company. I remnnber it was in March, and of a Sunday. I was in a small iiouse near to Mr. Cameron's, and hearing a great noise, I went to see what it was, and fnuling it was in Mr. Cameron's house, I went into his apartment, and saw, as 1 was going in, Bourke, Heden, Alex. M'Lean, and others, belonging to the Hudson's Bay people ; they were using their arms in a menacing way, presenting their pistols to him, and threa- tened that if he moved they would take his life. VVhen they saw me in the room, two of tl^e men belonging to the party, but whose names I tlo not know, beat me with the butt-end of their guns, and turned w.c out of the room. 1 know Mr. Siveright ; he was a clerk to the North-Wcsc Ccm])any, and was at the fort when it was attacked. V M 105 Mr, Sherwood. — Did you sec tlije behaviour of the party to Mr. Siveright at that time ? 7Vii/pifr.— No, I had no opportunity, as he was in the great house, and they would not let me remain there. J\l , S/irrtcom/, — Have you a personal knowledge of an express, conveying letters from the North- West posts, being seized ? 7V/M/)?>r. - Yes, I have a personal knowledge that Henry Poitras, and another man by the name of Plantc, were seized, under the orders of Mr. Robertson, and these letteis, taken from them. At(oi utiz-Gevrrnl. — My Lords, I can not, consistently with my duty, refrain from soliciting your I ordships' deci- sion, whether tcstiir.ony of this nature is within the rule that was intended to guide our proceedings? If this is within the limits of your Lordships' indulgence, I am at a loss to conceive how they can be exceeded. Every circumstance, however trivial, if calculated to excite the least unpleasant sensation, may, according to the course now proceeding in by the Learned Gentleman, be brought forward, and considered a provocation continuing that exasperated state of irritation which alone the Iciiiry of the law admits as an alleviation of the crime of murder to manslaughter, but not as a justifica- tion. I pray the inierfiTcnce of the Court to stop this, to my mind, most unwarrantable use of the indialgcnce granted by your Lordships. iMr. She) wood. — I feel, my Lords, well asstired that this is not a moment at which your Lordships will consider it necessary to interpose your authority, and limit the indul- gence which was so appropriately granted the other day, and continued to the present. I had thought that nothing more aggravated, nothing more immoral, could have been pro- duced than tlie conduct of the Hudson's Bay Company in taking of our ^orts, and plundering of our provisions and property wherever they could be found ; but, my Lords, the sacking of our forts, the plundering of our pemican, the seizure of our furs, are but as dust in the balance compared to this unheard-of (I was almost going to say) atrocity of stopping our express, and robbing him of our letters. Why, my Lords, were we permitted to take, with your Lordships' sanction, the course we are now proceeding in ? ecausc wc taid it was essential to the substantial justice of the case, that we should shew that outrage and aggression came so fa^L and thick, that the whole population of that country was in a itate of excitability that does away the charge, even suppos- "11 • (&.» 1 ■M m I 1 If t- lOG tng the Crown to sustain its facts, which it has not done. Ho«r, my Lords, did ^kc endeavour (sanctioned by your approbation) to support our assertion ? Wc proved the razing of our forts, the seizure of our provisions, the detention or robbery of our property, and, having gone so far, shall wc be prevented from shewing an outrage, compared with which, unparalleled as many of them have been, they are absolutely insignificant ? The injustice of publishing the affidavits which were taken by Magistrates, I say the flagrancy even of that step, sinks into comparative unimportance — ^itiorueij-denenU — 1 beg the Learned Gentleman's pardon for interrupting him, but that on both sides the evi- dence has been made as public as printing presses and news- papers could make it, is matter of such public notoriety, that it is almost a waste of time to advert to it. The depositions of witnesses on the part of the L rown and on the part of the prisoners have, with extreme injustice to both, been given to the Public. 1 do not stand here to apologize for far less to vindicate, such conduct in any man or body of men j no, it deserves the severest reprobation, and from me it has it. But, my Lords, what poss-ble effect can all this legally have upon an indictment for murder ? how is the alleviation or justification to be made out or inferred from evidence of these mutual improprieties ? I say not at all, and 1 again feel it my duty humbly to solicit your Lordships to interfere, and put a stop to proceedings so irregular, and to questions so totally irrelevant to the defence of the persons now at the bar. Mr. Sherwood. — My Lords, with the greatest deference, I claim from your Lordships the right of going on exactly in the course I was travelling when my Learned Friend inter- rupted me. That these are sore points, I know, but never- theless they must be brought to view. What is tlie criterion by which our offence will be estimated ? the enquiry will be, is the mn/us nniinus proved to exist, or rather have wc disproved it ? (The Crown always alleging, in the Indict- ments for murder, and the law always contemplating it to exist, until disproved). I say, if we are allowed to go on we shall do so ; we have nearly accomplished it at present, and shall most triumphantly finish it, if we are but allowed to avail ourselves, without interruption from the Attorney-Ge- neral, of the rule laid down for the conducting of these trials by your Lordships. What were we proving at the moment that Mr. Attorney-General interrupted the examination ? wc were proving a circumstance of outrage so gross iu itu 107 nature, that it might well keep alive the ill-will unhappily prevailing in that country. We shall go on to prove that such was the high state of excitement in which these parties were respectively, that they were always ready for conflict. We have proved that this began at the redoubtable Procla- mation, and we think it important to go on, and bring it down to the moment of the 19th June. This we shall, with your Lordships' permission, go on and do. If. in the per- formance of my duty, the private feelings of person^ who have trampled upon all law and all social feeling are hurt, with them let it rest. I shall not, therefore, refrain from speaking the truth, or producing it in evidence. The truth ought always to be upok-n. One word relative to publishing tiie King's evidence, and thereby (to use his own most correct definition) doing such extreme injustice to both the Crown and the accustd. 1 beg to mention that part of the charge belongs only to Lord Selkirk; we never had ingenuity enough to get the King s evidence, and be enabled to publish such parts of it as we thought proper, and keep back what we did not approve. How any man should be able, or any man who is able, should dare to do it, is a '^nestion not un- worthy of enquiry. I need, however, not retrain from pub- lishing, though it may scarcely obtain credence, an action so base, so immoral, as that of robbing an express, sent at im- minent hazard, and jjreat expence, across a wilderness i it is, indeed, the climax of turpitude. I wish that Mr. Attorhcy- General should be allowed to conduct the prosecution, but 1 :ilso wish him to allow nie to conduct the Defence. This, I think, I am entitled to, and I expei:t not to be interrupted again. To your Lordships' authority I am ready at any moment to bow, but not to that of the Crown Officers. I shall, however, dispute the ground, inch by inch, with Mr. Attorney-General, upon the subject of my privilege, under the liht ral and hij^hly equitable principle upon which we have so satisfactorily acted heretofore. In referring to the trial of last week, I find every thing clear and distinct, form- ing a most valuable precedent in trials under this Act, from the solemnity of the decisions, resembling, as I have said before, the dignity of a trial at bar rather than a session of assize. If, my Lords, we were to be stopped here, your Lordships would be surprised into an inconsistency of con- duct, such as I am sure must be very much regretted, and which Mr. Attorney-General can not, I am sure, contemplate whh satisfaction. In commencing my Defence, by putting in the Proclamation of Mr. Miles M'Donell, although it in- 4 1(18 volves In it the conduct of a third person, I do not wish thereby to cast any reflection upon Mr. M'Doncll. No doubt he thou, J)* c bif duty to do «o, Bclicvinj; his com- mission to be Valid. V 'V.1S July iulfillinr', with firmness, the duties of the t : .c^ osed in him. But it was this belief which occasioned all the disa'iters. It is from this assump- tion of power that all the evils have flown. We do not charge upon Mr. \MJonell, or the other Gentlemen occupy- ing similar situations, any dereliction of duty, according to their conception of what was their duty; but we say, from misconceptionsof their authority, or rather from attempting to exercise powers which they lUd not possess, all the mis- chiefs and calamities have sprung which Jiavc desolated that country. From this misconception of their powers, they have gone on, step by step, till they arrive at the most base and flagrant act, the biopjia^e and robbery of an express, in. outrage such as never was heard of among any people. In civilized nations couriers have ever been lield sacred, even in time of war. It was left for those professing a -nperior at- tention to the dictates of humanity, to resort to these nefa- rious means of supporting an illegal assumption of power. Mr. Justice li i/ftnti. —Thii is certainly not to a point of law you arc addressing the Court ; it is to the public feelings that you are directing yourself, and you can not be permitted to do so. Attorn f //-General. — I beg leave, my Lords, to mention, that I did not interrupt the Learned Cicntleman, though fully aware that the course of argument taken by him was extremely objectionable. I did not interrupt him, because I have considered that, for the last five hours, it has been equally exceptionable What has been the evidence pro- duced by the Learned Gentleman ? what his object in pro- ducing it ? He has been endeavouring to shew that hatred and ill-will existed between the Hudson s Bay and theNorth- West Companies. Admit that it did exist to the utmost extent which it is wished to establish, and I say, so far from its justifying or excusing the offence, it ought to aggravate it, as it shews at once the very spirit which constitutes the foun- dation of the charge brought in this indictment. It is to my mind, my Lords, the most singular defence that ever was at- tempted in a case of murder, to produce evidence of the existence of malice, which is the very essence of the crime. I perfectly agree with the Learned Gentleman, that nothing c^u be more indecent, nothing can be more flagrant, than tht outrages which have mutually distinguished this contest 109 between these hostile parties ; but I would ask, my Lords, was it ever before heard of, that former unjust and flagrant actions could soften or justify the commission of greater crimes i Certainly not. Admit that principle in relation to the Indian Territory, and I much fear, my Lords, that the humanity of passing; an Act of Parliament to punish offences committed therein will be rendered unavailing, as there pro- bably could be few enormities attempted to be brought to punishment, that a precedent might not be found for in the conduct of the opposite party. I much fear, my Lords, that the consequence of establishing the rule contended for by the Learned Gentleman, will be to encourage crime, by in- creasing the already great difficulties attending the bringing to justice otFcnders in the Indian Territories. The extent to which this principle might be carried is dangerous in the extreme Is it, I would ask, or ought it, to be allowed to be pleaded in justification for attempting to murder me three months hence, that I, three months before, had attempted the same, or actually did murder a person ? It certainly would not be allowed in an ordinary case. I do not see why wc should deviate from the ordinary course of criminal trials. I shall rijoicc as much as their Counsel, if these De- fendants can substantiate their innocence } but it must be done by legal evidence. Mr. Sh( rti'ond. — 1 am, my Lords, rather at a loss to con- ceive wjiat Mr. Attorney-General cvtisiders l€s;al evidence^ if that which wc are producing doc not correspond with his idea of it. We arc, my Lords, proving, link by link, the very same rhain of testimony which your Lordships have, on the fornior occasion, declared you considered wc had a right to prove. Mr. Jusfice Dnulton. — This declamation is really calcu- lated to produce very pernicious innnovations upon the re- gular practice of criminal jurisprudence, and must be put a stop to. It is a deviation exceedingly blameable, and likely to produce equal inconvenience to the parties as to the Court. Mr. Sherx^ood. — I beg pardon, my Lords ; but with re- spect to declamation, I do not think it a charge that can be sustained against me -, though, from frequent interruptions from Mr. Attorney-General, I have been reluctantly com- pelled to trespass repeatedly and at length upon your Lord- ships' attention, and notwithstanding that remark, must still continue to do so. We think, my Lords, we have a right to go into evidence of every thing calculated to prove the state i \ .'./ I "^ i „# ii ' 1 i /J ^'- -11 1 I ««;: 110 of cxcitemenf. finder which they laboured In this country ; and the unparalleled measure of stealing an express we in- troduce as a circumstance eminently calcuhted to produce a spirit of irritation, or to feed it if already in existence. Mr. Justice Boulton. — I always feel extremely sorry when compelled to decide again?t a Gentleman, who, from sense of duty, proposes to pursue any particular course, but this does appear to me so extremely objectionable, that J should think it criminal to allow it to be pursued. In the eye of the Public, we should be trying other people who have no opportunity of answering or explaining their conduct. 1 he stoppage of an express was unquestionably a very fla- grant act, but is a distinct transaction from this, and can nor be allowed to be gone into, as it can not, by possibility, be a^y defence to a charge of rnurder. 5o/ici7or-Crcw^ "' 1 ill n fiJ^ IR Montreal, and furnish them with provisions. That was our only object } we had no other. I do not know why we car- ried arms. It is very customary to carry arms there } almost every body carries his gun at all times. We came to Portage des Prairies by water, but could not go any farther, because the river was blocked up against us by the Hudson's Bay Company's servants, and we could not with safety go except by land. Cross-'Examination by the Attorney-General. AUorney-General. — Do you know how long the pro- visions you took down with you would last sixty or seventy men ? Morrison. — No, I can not say that I do. Our allowance is a pound a day each. Attorney-General. — Did you take all you brought down In the canoes in the carts ? Morrison. — No, we did not take all. Attorney •General. — You had, I think you say, two carts i how many bags did you take in each ? Morrison. — There were nine or ten bags in each cart. Attorney-General. — What does a bag of pemican gene- rally weigh .'' Morrison. — From eighty-four to ninety pounds each. Attorney-General. — As you had orders to avoid Fort Douglas, how happened you to make direct to the Settle- ment, if you had no hostile intention ? Morrison. — It was our road to where we wanted to go. Re-examined by Mr. Livius Sherwood. Morrison. — We received instructions to pass the fort, but we had no orders to avoid the Settlement, and it was in our way to where wc wanted to go. FRANCOIS FIRMIN BOUCHER, sworn. Examined by Mr. Sherwood. Boucher.— I was at Portage des Prairies in 1816 ; I was there in June 1816. A Partner of the North- West Com- pany, of the name of Alexander Macdonell, was tliere ; he had come from Qu'Appelle. I was a servant of the North- West Company at the time. I know of provisions being Mnt from Portage des Prairies at that time, and Cuthbert Cirant as well as myself were of the party that took them. it the fri^ /W 115 They were designed for the supply of canoes expected from the interior and from Lower Canada. The object of going by land was to avoid Fort Douglas ; the passage of the river also was obstructed, and we understood they wafhed for us at P ort Douglas. The orders given by Mr. ivlac- donell were, to go past the fort at as great a distance a» possible, so as to avoid being seen and having difficultyu Those orders were strictly obeyed. We went as far back as we possibly could ; we could not go farther, for there was a swamp, in which it was impossible the carts could get on, as the horses sunk up to their bellies ; but we passed the fort at as great a distance from it as we could. After we got by the fort, about two miles, we observed Mr. Semple and an armed party coming towards us, at which we were much surprised, and we stopped. They came up in a line, as if they were prepared to attack us, and we thought they in- tended to do so. Some of our party said, that as I spoke a little English, I had better go up and speak lo them, and see what they wanted, that they came after us. I went ac- cording to their desire. I rode up quickly, and before I got close up to Mr. Semple, I asked what they wanted, that they pursued us. I told him that we were afraid he meant us harm, by following us, and some other words passed. He had laid hold of my bridle on my coming up, and he then laid hold of my gun. I told him I had not come out to tight. Upon my saying this, Mr. Semple called out to his people to take that rascal prisoner. Some of them th^'n came up to me, armed with guns and bayonets, in a threatening manner, and I cried out to them, *' Prenez *• ixarde de vc me faire dn 7)in/." At this time my people came up. Seeing our people advance, some of them cried out, *" We are all dead men! — My God, we are all dead men !" 1 here had not been any firing at this time, on cither side. Air. S/inivood.—'Upon this expression of his people, that they were ail dead men, what did Mr. Semple say ? Bout fi> r. — He called out, " you damned rascals, this is " r.'T time to be afraid," and immediately two guns were fired from Mr. Semple's party. J\Jr. Skf.rtvood. — Were those two guns fired at you ? Boucher. — I do not know whether the first was or not; they were let oft* very close together, and the second must have passed very near me, as I heard it hiss close to me. I then threw myself from my horse, which was very muci frightened by the shots, and run the distance of gunshot ^ i 2 * 1 ; i m ^ i ■}} ;// i. J iMSV' 116 i, Mi without stopping, and remained where I stopped till the battle was ended. The battle lasted about a quarter of an hour) and I staid at the place where I first stopped till it was over. I was lying the whole time fiat on my belly in the ^rasS| which was very high. After the two first shots a volley was fired directly ; but, as the firing became general, I can not say positively by which party, but I think it was by the Hudson's Bay people. Mr. Shertuood. — Do you know how many volleys were fired by either of the two parties ? Boucher. — No, I can not tell that, it is impossible, as immediately after the two first shots the firing became general. Mr. Sherwood. — Had there been any injury done to the Hudson's Bay people before the assault committed on you, and thcirfiring the two shots you have spoken of ? Boucher. — No, not that I know of. Indeed 1 know that there had not, for I was present all the time, and I have told all that passed before the firing became geneni. AJr. Sherwood. — Have you any knowledge of any injury being done to them after the battle, w!ien, I believe, from their own account of the matter, they were entirely in your power, that is, in the power of your party ? Bouchtr. — I do not know of any injury being done to them. They were entirely in our power after the battle, and I know there was no injury don*: to them whatever. Mr. Sherwood. — When the servanis of the Hudson's Bay Company and the settlers went away, wai? an escort given them, to see them safe from any attack iha't they '.srere afraid might be made upon them .' Boucher. — At the time they went away there was a good deal of confusion, and some of them came and asked me to protect them against the Half-breeds, and I conducted them as far as the Frog Plains, when I returned, and they con- tinued their route. I did not see any cannon in the engage- ment, but I saw one afterwards, belonging to the Hudson's Bay party. We did not bring any wi js, I am confident. Mr. Sherwood. — You are quite certain that it was pemi- can, and not cannon, that you had in the carts that accom- panied you ? Boucher -^Yes, I am sure it was pemican. r ..tttiks^d^ J^^kl:,! 117 C'luss'Examifialion, rnndurlid htj the Attorney- General. Atlornry-General. — Was you at Fort William aticr the 19th June? Boucher. — Yes, I came down there some time after. Attorney-General. — You have b vorn to-day, that the only object you and your party had in coming from Portage des Prairies was to conduct in safety some provisions to meet canoes which were coming from the interior, and from Montreal j have you never given any other account of your object ? Boucher. — I may, when 1 was not under oath. Altornei/-GeneraL — Did you never say that your object was to destroy the Settlement, and the way you proposed to effect it was by starving the colonists ? Boucher. — I might have said so when I was not under oath i I may have told persons so. Attorney'General. — Did you ever tell any body that your object was to take Fort Douglas ? Boucher. — I do not know that I ever told any body so, but I might have said so. Attorney-General. — Had you no intention to offer violence to any person, but simply to conduct your provisions ? Boucher. — I never had the slightest intention to do any body any harm ; 1 was sent with the provisions. Attorney-General. — Did you not hear it mentioned that you were to take Fort Douglas ? Boucher. — No, I never heard any thing of the kind. I heard that they intended to retake Fort Gibraltar, if it it was not given back to them, but I heard nothing of taking Fort Douglas. Attorney-General. — Did they go down avowedly to re- take their fort, as you say, or to take Fort Douglas ? Boucher. — All I heard was, that while down, they would get their fort again, and the provisions which had been taken from them ; but I do not know what was their object, unless it was to take the provisions. Attorney-General. — Did Mr. Grant never communi- cate to you what his intentions were ? Boucher. — No, he never did. I know that his direc- tions from Mr. M'Donell were to go below some distance, and wait there for the arrival of the canoes. Attorney-General, — And if you had not been attacked, you really believe Mr. Grunt would have stopped there ? iL fi '^i 118 (:/ \> Boucher, — Yes, I certainly believe he would have fol- lowed his orders, by stopping till canoes came, either from above or below; I have no reason to think otherwise. AUorney'G eneral.—\)o you know, as these were his intentions, how it happened that, before any notice of the approach of Governor Semple and his party, your people made prisoners of some of the colonists ? Boucher, — No, I do not know how it happened. ylUorney~General — But you know, I presume, that prisoners were made before your people saw Governor Semple's party ? Boucher. — Yes, I know there were prisoners i.iade, be- cause I saw them, but I do not know by whom they were made so. I saw two women and one man. I can not posi- tively say they were prisoners, but I understood they were. I saw one at a freeman's house, who is now here, and can tell you more about it. Attornei/-Gtneral. — I ask you again, was you not told, before you went away, that the party were going to make prisoners of the colonists, and thus break up the Colony ? Boucher. — No, I was not told so. I never heard that they were going to take prisoners. Attorney^G eneral.-^Haxe you never told any body so ? Boucher. — I never told any body so. Atti)rn<'i/-Gener(tl. — Do you recollect what you said upon this subject when you was before Mr. Mondelet ? Mr. Sheruood. — 1 will not let him answer that question, or give any information of what passed before Mr. Mon- delet. Indeed I am rather surprised, after the opinion of the Court, expressed on the trial of Boucher and Brown, when this same Declaration was attempted to je made evi- dence, and withdrawn by Mr. Attorney-Gen» ral, that he should desire to examine Boucher upon it, for tlie purpose of making that same Declaration evidence against the Acces- saries, which he was prevented from using against the Prin- cipal who actually made it. Nothing that passed before Mr. Mondelet shall be made evidence here. A ftoiney- Genera/. — Did you never to any body say, that the intention of your party was to reduce the fort by famine ? Mr. Sherzcood. — If you ever said any such thing to Mr. Mondelet, you have no occasion to tell ; indeed you must not mention any thing you may have said before Mr. Mon- delet. AUoniey-General, — I ask you if, in the presence of any Ill) other person tiian Mr. Mondclel, you have not said that the intention of your party was to reduce it by famine ? Boucher. — I was once asked by Mr. Stuart at the same time Mr. Sherwood. — The witness is improperly led to men- tion the name of Mr. Stuart. I have the highest respect for that Gentleman. His name ought not to be called in 2uestion. I object to the indelicate course taken by the !rown in this part of the cross-examination. /iUnrneij-Genernl. — Did you never, in the presence of any other person, say that the object of your party on the 19th June was to starve the fort into a surrender ? Boucher. — I do not believe I ever said so. MICHEL MARTINy sworn. Examined through the Interpreter^ hy Mr, Sherwood. Mr. Sherwood. — Was you at Portage des Prairies in June 1816, when the party set off to carry provisions to meet the canoes, which at that season arc expected from Montreal and the interior ? Martin. — Yes, I was there *, I was one that went. Our orders were to go by Fort Douglas, at as great a distance from it as possible, and we did so. Mr. Sherwood. — Why were you told to pass at a dis- tance from Fort Douglas ? do you know of any reason ? Martin. — It was to prevent our losing the provisions we had with us, and to avoid being insulted. We had two cart-loads of provisions for our Gentlemen, whom we were to wait for below. I was in the battle of the 19th June with the Hudson's Bay people. The Hudson's Bay people fired first ; they fired two shots before we fired any, for I saw them. I did not hear Boucher ordered to go, but I saw him as he was going, and I saw him when he had got up to Mr. Semple ; and whilst he was very near Mr. Semple, I heard and saw a gun fired, and I know it was by the Hud- son's Bay party, because I saw the smoke. Mr. Sherwood. — Had you any intention to do any harm to the Settlement when you set off from Portage des Prairies ? Martin. — None whatever ; we did not think of it. Mr. Sherwood. — Afterwards, when the settlers were in your power, did you do them any harm ? JMnrlin.'—lio, I am sure we did not. J J IE i • 1 120 Mr. >j/irrwnod—'Hm.\ ;,ou any intL-ntion of attacking the Settlement, or Air. Scmple, if he had not attacked you ? Marl in. — No, that I am sure we had not ; if he had not come out to us, we should not have gone to him. Mr. Shfrivood. — You are a Christian, I presume, and have been baptized, have you not ? Mar/in. — I am a Christian, and was baptized in Lower Canada. no BERT HENRY, Enquire, swon,. ft m Examined lnj Mr. Shfrwood. Mr. llenrt/. — I left Montreal, as soon as the ice broke up in 1816, in company with Mr. M'Leod, Mr. M'Kenzie, Mr. Misani, and Mr. Brumby, to go to Fort William. From Fort William we were to go into the interior ; our object in going there was to secure provisions for our traders and servants, as we had great reason to apprehend that they would be taken from us, or be attempted to be taken from us, as they had been in 1814. We had the usual assort- ment of goods taken up into that country with us ; amongst them were some equipments, of course. W e got a piece of ordnance at Ba:> de la Riviere, where we stopped on our way up, as we usually obtain our provisions there. Mr Shetwood. — Did you get them as usual this time ? Mr. Henry. — No, and so we were determined to take all the people we could muster, and go up and ascertain the reason. We had to pass Fort Douglas on our route from Bas de la Riviere, and having heard that we were not to be allowed to go by it, we took these precautions to protect ourselves. Our object was to avoid hostilities, if possible, but at all risks to defend our property and our persons, if attacked. We had no wish to interfere with Fort Douglas, but we were determined not to be prevented from passing it, and pursuing our commerce. If they would not let us do it peaceably, it was their fault if any thing happened. We intended to pass by day-light, and to go by Fort Douglas singing } and if they did not molest us, we had no wish to say any thing to them ; but if they did, wc were determined to defend our persons and property to the last. Mr. S/iciivuud. — Did you, Sir, on your route., meet any yoi FoJ wrll pre 121 of the Defendants P Mr. M'Kenzici I believe, accompanied you from Montreal ? Mr. Henrif. — Mr. M'Kcnzie went with us from Mont- real, and in the course of the route, I met most of the other Gentlemen ; I believe all. Mr. Sherwood.— I will not question you, Sir, at all about the affair of the 19th June, but I will ask you if, after that time, you saw a Mr. Fambrun in company of those Gen- tlemen ? Mr. Ilenri/. — Yes, I often saw Mr. Pambrun at table with those Gentlemen \ I have seen him frequently. Mr. Sherwood. — Did you, Sir, consider those Gentlemen, or any of them, as accessaries to murder P Air. Henri/. — No, that I did not ; I should have been sorry to have been in their company if I had done so. Mr. Sherwood. — Mr. Pambrun has told us he does con- sider them so. Pray, Sir, did you see any reluctance in Mr. Pambrun to partake of the hospitaUties of your table along with those Gentlemen } Mr. y/c/?r"— No, certainly not. If he had had any objection, i Jy would have forced him to dine with them. Mr. Sherwood. — Do you happen to know whether the North-West Company ever granted this Mr. Pambrun any favours, as he considered them at the time ? J/r. Henry. — I know that he received many favours from the Company, for which, at the time, he appeared grateful. I know the Company exerted themselves relative to his half-pay, and I believe it is owing to their exertions that he now receives it. Mr. Sherwood. — And he evinces his gratitude by pre- suming you are a set of murderers, or accessaries to murder, and says he considers himself disgraced by sitting at the same table with his benefactors. Cross-Examination by the Solicitor-General. Solicitor-Generul. — I think you said. Sir, that neither you, nor the party with you, had any intention to molest Fort Douglas ? Mr. Jienrj/, — 1 have said we had no intention to molest it, nor had we any design of doing so. Solicitor-General. — Have you any recollection of ever writing a letter, in which a very different sentiment was ex- pressed, but expressing your satisfaction at finding it alreadj/ IMAGE EVALUATION TEST TARGET (MT-3) k A {/ ^ ^^4i.. yj,y^ y; ■■«', ^ ^ 1.0 I.I ■ttlM 12.5 ■JO "^ i ■- IIIM ." .,. I 2.2 11.25 i 1.4 1.6 6" — V j*^ %■ Fhotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 '<» i/.x ^ 122 ^ taken ? Do you recollect writing such a letter to a Mr. Henry ? Mr. Htnri/. — I do not recollect that I did, but I may have said to Mr. Henry in a letter^ that I was glad tt was already taken ; I will not say that I have not. Solicitor-General. — But you arc quite sure that you and your party had no intention of attacking it ? Mr. Henry, — If they did not attack us, we had no inten- tion of molesting them } but if they did interfere with us, we were determined to defend ourselves to the last. SolicitOT'Genernl. — You appear to have been prepared for an attack ? Mr. Henry. — The impression upon my own mind, and I believe upon others too, was, that we should not be per- mitted to pass without being attacked, and therefore I thought it best to be prepared : but it never was our inten- tion to molest them, though we were prepared to resist any outrage committed upon us ; and it might be in this way, If I did write it, that I said I was glad that Fort Douglas was taken already. I might have forgotten to explain myself fully. It was confidently expected that we should be at- tacked at Fort Douglas, and Mr. Henry living at a distance, I might, in writing hastily to him, have said that I was glad it was already taken, meaning I was glad we had no dif- ficulty. Solicitor' General. — Do you recollect, when at Fort Wil- liam, writing to a person at Fond du Lac, to raise the Indians in that quarter, to march to Red R iver, to meet you there upon your arrival ? Mr. Henry. — I did write such a letter, and my reason for doing so was, that, if our provisions were taken from us, and we were not permitted to carry on our trade, they too would suffer as well as ourselves j and I thought, if a strong party, capable of defending ourselves, and carrying our point, were seen by the Hudson's Bay people, it might prevent our being attacked i and if it did not, we should be better pre- pared to defend ourselves. Solicitor-General. — This was before Lord Selkirk took possessior of Fort William, I presume ? Mr, Henry. — Yes, it was. Re-examined by Mr. Livius Sherwood. Mr, Livius Sherwood, — Though before Fort William had been taken, it was not before Fort Gibraltar had been i*»»«sr?^ ! '• pre- took Ham been 123 taken, I believe, nor before the express had been stopped, and his letters taken from him, that you wrote to Fond du Lac? Mr. Henry. — It was after we had heard that Fort Gib- raltar had been taken, and that our express had been made a prisoner and robbed of his letters; and from these, apprehend- ing that further aggressions would be committed, and that our provisions would be prevented from coming down the Assiniboin River, we did this ; and although we went tip with a strong party, and with arms, they were only to act in self- defence. Re-examined by the Solicitor-General. Solicitor-General* — Are not you, or were not you, in- dicted for this offence at Montreal, or in the Province of Lower Canada .-* Mr. Henry. — I do not know that I am. I believe not. JAMES LEITH, Esquire, sworn. Examined by Mr. Sherwood. Mr. Leith. — On the 13th June, 1816, a number of the North-West Gentlemen came to my post at Rainy Lake, and amongst them some of the present Defendants. Mr. Sherwood. — You, Sir, 1 believe, are a Partner of the North-West Company, and are acquainted with the nature of their trade ? Air. Leith. "-1 am a Partner, and have a knowledge of the mode in which the business is conducted. Mr. Sherwood. — You have, Sir, in your employ a great number of servants of different grades. Do you clothe them all, or furnish them with what, £ believe, you are accustomed to call equipments ? Mr. Leith. — They are all furnish id with what we call equipments, by the Company, and some with double equip- ments y but all, whether clerks orvoyageurs, have equipments found them by the Company. Mr. Skerivood. — What number of equipments do you dispose of annually ? Mr. Leith. — I can not say j but they amount to some hundreds. Mr. Sherwood.'-'Did you go on with these Gentlemen to Red River, and take with you what people you could spare .' •^ >)l x il u 124 Mr. Lcilli. — Yes, I did accompany them, and my peo- ple and a number of Indians went also. Mr. Sherwood. — You doubtless knew their intentions well ; will you please to tell us what their objects were ? Solicitor 'General, — This Gentleman may tell us what in- fluenced him } but what they might' tell him their intentions were, can be no evidence. Mr. Sherwood. — Have the goodness. Sir, to tell us what led you and your party to go to Red River. Mr. Leilh. — In IVIarch or April, I received letters in- forming me that Mr. Duncan Cameron and Seraphim La< marre were taken prisoners, and that the general report was, that Fort Gibraltar was to be attacked in the spring. I for- warded the information by express to the Agents and Part- ners of the Company. I afterwards learned that Colin Ro- bertson and a party had taken it, and also that we were not to be permitted to pass up the Assiniboin and Red Rivers. Knowing that hundreds of our servants must be starved if this was submitted to, we determined to go in considerable force, and see whether we were to be prohibited trading or not, and also to make the necessary arrangements for pre- venting disappointment in future. We had, undoubtedly, no other intention than to go quietly, if we were not mo- lested; but we were determined not to submit to any attempts to hinder us from passing quietly, and we were in hopes, that by taking a large force we should induce them not to molest us in our passage. We stopped in our way at Bas de la Riviere, and there two of the boats took in a piece of ordnance each, and we then proceeded on our route, wishing to meddle with nobody, but determined not to be prevented from proceeding up the river, which we considered, as the great highway of the country, we had a right to. If we were obstructed, we determined to defend our right at the risk of our lives. , ' Cross-Examination^ conducted by the Solicitor- General. Solicitor-General. — There were cannon at Bas de la Riviere, which you took with you ? \Mr. Leith. — Yes, we took two pieces of ordnance. Solicitor'General.'^Do you know where they came from to Bas de la Riviere ? Mr. Leith. — No, I do not. I only know that they were there, and that we took them with us. 125 the Soflrifnr- General. — Have you no knowledge that they had been taken from the Colony at Red River ? Mr. Leith — I can not say whether they were, or were not. I know nothing about them. The Hon. WILLIAM M'GILLIVRAY, sworn. Examined hy Mr. Sherwood. Mr. Sherwood — You, Sir, are, I believe, the senior Partner of a very extensive commercial establishment, called the North- West Company, trading into the Indian country ? Mr. M*Gillivratf. — I am a senior Partner of that Com- pany. Mr. Sherwood.— Is it the duty of the Gentlemen sta- tioned in the interior, to give you notice if any thing parti- cular occurs near their respective posts ? Mr. M^Gillivray. — It is their duty to do so. Mr. Sherwood. — In the early part of 1816, did you. Sir, receive any information from the Red River country ? Mr» M*Gillimai/. — About the end of March, an ex- press arrived at Montreal with letters firom Red River, brought by one La Gimoniere. Their contents were public enough, viz. that Fort Gibraltar, one of our stations on the Red River, had been taken by Lord Selkirk's people in October, 1815; that Mr. Duncan Cameron, one of our Partners, and a clerk, had been taken prisoners : and threats were made use of, that all the rest of our posts should be taken. Mr. Sherwood. — Will you relate ny measures of pre- caution tha were taken, to prevent or counteract the incon- veniences threatened by this and similar conduct ? Mr. M^Gillivray.—To do so will lead me into rather a long statement, as there are a variety of circumstances con- nected with the transactions of that time, that it will be necessary to explain, so as to enable the whole to be under- stood. Mr. Sherwood. — It is very important, Sir, that we should have the information you refer to. Will you therefore give us a succinct narrative of what measures were taken in con- sequence of the communication you received from Red River, or, indeed, any information which you may consi- der calculated to throw a light upon the transaction of the 19th June, 1816? Mr. M*GiUivrai/. — In the early part of 1816, and par- 120 V I. ticularly after receiving the information I just now alluded to from Red Riverj we became apprehensive that the same game would be played again which had been played in 1814 ; for, owing to these seizures, and the enemy being in posses- sion of the communication from Upper Canada, which pre- vented the Agents of the North- West Company from for- warding provisions as usual, our stock had been reduced so low at the depots, that we were left greatly dependent on the quantity to be collected in the interior country, and the se- curing, it became an object of the greatest importance to us. Mr. Sherwood. — It was in 18H that your provisions were seized in various places, and under the assumed autho- rity of Mr. Miles M'Donell, I believe ? Mr. M*Gillitrai/. — They were taken in that year princi- pally, and it was to that I referred ; fpr their captures, in conjunction with the circumstances of the war with the United States, had reduced our stock very low, indeed so low, that, unless considerable precaution was used, many of of our most distant posts might be e:(posed to starvation. After numerous consultations among our Partners, it was determined to send an Agent, and as many of our Partners, and of the clerks, as could tse spared, into the interior, in order to protect the provisions in case they should be at- tacked. My fear was, that the plan laid some time before for our destruction, by depriving us of our supply of provi-p sions, might be carried into effect ; and also that, unless our people farther in the interior than Red River received timely notice of the capture of Fort Gibraltar, our furs might alsp be stopped. Mr. Sherwood. — Had you. Sir, any communication with Government on the subject of affairs in the Indian country ? Mr. M'Gilfivray, — I had. Upon receiving information officially from His Excellency Sir GordonDrummond, of the intention of the Government to furnish Lord Selkirk a body> guard from the military, I remonstrated against it, and pointed out what, in the exasperated state of the country, I feared would be the consequence of such a step. I should, with my knowledge of the Indian country, have thought myself highly criminal, if I had not called the attention of Government to what was going on, and what I foresaw would be the result of the measures which were pursuing ; but unfortunately my representations were not attended tq in time. Mr. Sherwood, -^\Jpon the subject of military protection )|*->,i « ^ i ft —i ■ ■ •;27 of tp or countenance being given, did you make any representation to Sir Gordon Drummond ? Mr. M'GilHvraj/. — I did, and my reason for doing so was this : I knew what the consequence would be to the traders in the Indian country, if once the Indians were per- suaded that one Company was peculiarly protected by Go« vernment, or had any exclusive privileges ; and I was fearful that the circumstance of a body-guard being furnished to his Lordship, might be used so as to induce the Indians to be- lieve that the exclusive protection of Government was given to his party. Mr. Sherwood. — Did you, Sir, apply to Government to nominate some person to go into the Indian Territory and report the state of affairs ? Mr. M*GiUivray. — I did. We had been accustomed to protect our own trade ; indeed, till lately, it was very little protection that it required. Fearing the use that might be made of this military guard, I thought it highly necessary that we also should have some proof of the protection of Government being equally extended to us as to others } and I therefore made application to Sir Gordon Drummond, to give leave of absence to two Officers of respectability, that they might accompany our Partners to the interior country* in order to enable us also to say to the Indians, that we had the protection of Government as well as our opponents* Permission was accordingly given to Lieutenants Brumby andMisani to accompany our Gentlemen, and at the breaking up of the ice, every thing having been previously prepared) they left Montreal. Mr. Sherwood. — Did you accompany these Officers your* self, Sir ? Mr. M^GilUmajt/. — No, I remained at Montreal until my usual time of setting out for Fort William. I arrived at St. Mary's on the 17th June, and there I received letters frcmi Mr. Leith and others, giving accounts of the depreda- tions committed at the Red River by Lord Selkirk's people. Mr. Sherzeood.-r-And for the reasons you have stated, you made the various representations to His Majesty's Go* vernment on the subject of Indian affairs ? Mr. M*Gillivray. — Yes, as far as I remember, those were the reasons. With my experience for thirty years in that country, I should have considered myself as inexcusable, if I had not endeavoured to call the attention of Government to what was the actual state of afiairs there, and I can only re- gret that my representations were not earlier attended to. Solicitor'Generah'—l am sorry, my Lords, to make any fi f - w 128 I opposition to Mr. M*Gillivray's relating every thing which he considers important to the Gentlemen in whose behalf he is brought forward as a witness ; but the detail of facts, into which the questions of the Learned Counsel have led him, can not be considered, I think, as any way connected with the cause at present under trial, and therefore ought not to be continued. Mr. Sherioood.— The preliminary questions which, for the purpose of letting the Jury clearly understand the case, I thought it expedient to put to Mr. M'Gillivray, are finished, and I proceed immediately to points that have already been given in evidence. My first object will be to explain how it happened that equipments were given to the servants of a Company who are constantly accustomed to clothe the whole of their very numerous servants ; a circumstance about which a great deal of art has been used. I believe, Sir, Mr. M*Leod was among the Gentlemen who accompa- nied these Officers whom you had so properly applied to Go- vernment to allow to visit the interior ? Mr. M*GiUivrai/. — Mr. Archibald Norman M'Leod was the Agent of the Company who went with those Gentlemen. Mr. Sherwood. — Have you any knowledge, Sir, of any equipments going up with those Gentlemen ? Mr. M*Gillivrai/. — There were a quantity of equipments, about thirty or forty suits, as I think. Mr. Sherwood. — Was that a very extraordinary circum- stance, that canoes going to the interior should take up equipments ^ I am desirous of knowing whether it was a circumstance calculated to excite surprise, and manifesting some improper design, or is it a usual occurrence ? Mr. M*Gitlivrai/. — It is a very common occurrence ; so common, that all the canoes that go up take more or less of them. Mr. Sherwood. — In the very extensive commercial pur- suits of this respectable Company, of which you are the head, I presume you have occasion to employ a great num- ber of servants of different descriptions, whom, I believe, you furnish generally with clothing ? Mr. m*GiUivfay. — We have a great number of persons in our employ, in different situations, as clerks, voyageurs, and in other capacities, whom we supply indiscriminately with epuipments ; they form a part of their remuneration, and are invariably supplied by the Company. Mr. Sherwood. — Then, Sir, equipments must form a very considerable item of expenditure annually ? Mr. M^Giltivr at/. ■^'They do. It amounts to a heavy sum. / )U 129 Mr. Sherwood.-— llzve you a knowledge of how many hundred, or thousand, suits, (for, so extensive as your con- cern is, probably they amount to thousands,) are required annually ? Mr. M*GiUivray. — I can not say, but it is a great num- ber, and they are attended with a very heavy expcnce. Mr. Sherwood. — What, Sir, is the food principally de- pended upon for the supply of the traders ? Mr. M* Gillivray.—A preparation of dried buffalo meat, called pemican. Mr. Sherwood. — Could your trade be carried on without pemican in that country ? Mr. M*GUlitraji/.—l certainly do not believe that it could. Mr. Sherwood. — Is it from the Red River country that you have been accustomed to be supplied with pemican ? Mr. M*GiUivrai/. — It is from there we have always drawn our supplies, as the buffalo abounds on the extensive plains in and about that part of the Indian country. Mr. Sherwood. — If you were deprived of your ordinary supplies in that quarter, is there any other place from which you could receive them ? Mr. M*GUlivrai/. — There is another place, but it is at a great distance, and the buffalo are not so plentiful as in the neighbourhood of Red River : we always have been accus- tomed to get them from here, and it is the most convenient, being near our route. Mr. Sherwood. — Have you been, till within these few years, accustomed to trade in the Indian country, upon Lake Winnipic, and the rivers leading into it, or out of it, with- out molestation or interruption ? Mr. M'GiUixrnf/. — We have, to my own knowledge^ for upwards of thirty years. Mr. Sherwood. — Were there. Sir, when you first went into that country, any Hudson's Bay traders accustomed to visit it ? ' Mr. M'-Qillitrat/. — There were not any estabi* hed in it, nor for some years afterwards} for at least eight or nine years after. Mr. Sherwood. — Then to i/our knowledge, to go no farther back, you were accustomed to trade for nine years in the country before these persons came to it, who now want to turn you out of it ? Mr. M^Gillivraj/, — It was nine vears after I had been *K JU \ 4 ft. ■1^ Hi vi ;l 130 H h I. used to trade into that country, that I first saw any Hudson's iJuy people on the Red River. ''■...,'--■' Cross'ExaminaUon, conducted hi/ the Solicitor. General. Solicitor-General. — Arc you sure there was no intention to take Fort Douglas on the part of the Gentlemen who went with these officers you have spoken of ? Mr. M*GiUhray. — It was never dreamt of; they had no such design, I am sure. Solicilor-Genernl. — For whom, Sir, were these clothes particularly intended which were taken up by Mr. M'Leod ? Mr. M*Gillivray. — ^Thcy were intended for the Bois- brule servants of the Company, I believe \ but I can not say positively that they were. For the space of two years pre« viout to this period, I knew there had been a contest be- tween the North'West Company and the Hudson's Bay people and Lord Selkirk's agents, who should most attach the Brules to their interest : these clothings or equipments were therefore given to the Gentlemen going up, to be ap- plied discretion^ly, as they might best conciliate the engages or natives, without any restriction whether they should be given to Whites or Brules. Solicitor-General. — Have you not a knowledge that they Were directed to be given to those who had been the most active in opposing the Hudson's Bay Company ? Mr. Ai'Gillivrai/. — I do not know whether any such orders were given or not. I did not hear of any such. Solicitor-General. — Had you any reason to apprehend such a dreadful occurrence as this, from any thing you had heard on your way to Fort William .' Mr. M^Gillivray. — With the experience I had in Indian affairs for upwards of thirty years, it was impossible not to foresee that some dreadful catastrophe must happen. I made representations to the Government, which unfortunately were not attended to in time, and the melancholy affair of the 19th June took place. As soon as I knew of our fort at Red River being taken in March, which was at St. Mary's, on my way to Fort William, I wrote to Montreal, and it is singular, that at the very time I was expressing my appre- hensions of the dreadful consequences to be expected from these outrages, the battle of the 19th June took place, of which I was informed after my arrival at Fort William. In u.. 131 consequence of my letter from St. Mary's*, Mr. Rictiardson, at my request, proceeded to the seat of Government at Quebec, with all the information I had been able to obtain upon the subject, and again urged the indispensable necessity of appointing an officer, clothed with sufficient authority to lian t to ade ely of at ly's. t is re- iom of In * The fgUowiogii a copy of tb« above-mentioned Letter. St, Mar/», 18lA June, 181ff. BIA« lias, I deem the contenti of the packet which you will receive herewith ro be of sufficient importance to transmit to you by an express. I accord- ingly send Mr. Dease with it, for the greater certainty, and in order that no time may be lost in coming back. The violence that has been committed on the persons of Mr. Cameron and several others, as stated in the Letters of Mr. Leith and Mr. Siveright, without even the shadow of any legal authority ; the forcible seizure and robbery of the North* West Company's merchandise and effects ; the occupy- ing of their houses and stores by the aesperado, Robertson, and his associates ; and the detention of our couriers with the express from the Northern De- partments, and no doubt breaking open all the despatches, public and pri- vate—all these are such acts, that I am at a lost to apply appropriate termt to them. Ood knows what may have taken place in tne spring. I almost tremble to learn the truth. Our people will certainly defend their property at the risk of their lives, and there is no knowing what the event may be. ^Vnd if any attempt be made, as is talked of (which I can scarcely believe), to stop the highway, either at the entrance of River Winnipic, or at the Grand Rapid, the consequence will be serious indeed. From what hat already taken place, it is evident that, unless Government interferes, open hostility will be the conseoucnce, not only in the Red River, but in the other Departments, in whicn case the natives will doubtless get involved in the quarrel. To prevent such a dreadful catastrophe, if possible, by giving the earliest intimation to Government of these tramactiont, 1 have deter- mined on sending this express ; and I trust Mr. Richardson will be able to spare time to lay a representation of the business in person before His Excel- lency the Governor-General. The interference of Government at the prcw sent critical juncture of affairs, may put a stop to these scenes, at least for the ensuing winter, without v.hich, I am apprehensive, many lives may be lost. This is the first time that we have troubled Government with our com- plaintS' We have long submitted to the most villainous calumnies on the part of those who themselves were the aggressors, but things have now come to such a length, that we can no longer act entirely on the defensive. It is needless to trouble you with more of my conjectures on this unfortu- nate business. If any determination is taken by the Governor-General to put a stop to their violent proceedings, the season still affords sufficient time for sending up some Officer or Commissioner, to act in the King's uame, should His Excellency deem it advisable to adopt such a measure. I expect the canoe will be at Fort William in thirty days from this, allowing the crew to remain a few days at Montreal. I am. (Signed) To the Agent* of the iV. //'. Co. Montreal. } Dear Sirs, Yours, &c. W. M'GILLIVRAY. K2 13-2 if-- III. keep the pence in the Indian «.auntry, and lnve«t'igate the ttate oi thinas*. state of things*. ■> r Jie-examined by Mr. Sherwood. .i V Mr. Sherwood. — How long, Sir, have the Hudson's Bay Company and Lord Selkirk traded in to that country ? Air. M*GUlivrny. — The Hudson's Bay Company were accustomed to trade .here before the establishment of the Colony by the Earl of Selkirk. Mr. Sherwood. — When was this Colony begun ? Mr. M*Gillivra?/.— It yrzs bcpnn about 1812. it/r. Sherwood. — Had you difficulties with the Hudson's Bay Company, or did they commence with the establish- ment of this Colony ? Mr. M*GUIivray. — We had no extraordinary difHcuU ties till the establishment of this Colony in 1812} I do not say there were none, but there were none of any magnitude. Mr. Sherwood. — Pray, Sir, do you know a Mr. Pierre Pambrun, a half-pay officer ? Mr. M*GVlivrm/. — Yes, I know something of him. Mr. Sherwood. — You, Sir, 1 believe, have admitted him to your table. Did he appear to think himself disgraced or honoured, by being permitted to take his seat there with yourself and friends ? Mr. M*Gi/livrai/.—He certainly did not consider him- self disgraced, I should think. Mr, Sherwood. — Did you ever observe any reluctance in his conduct to sitting with those Gentlemen ? Mr. M*GUlivrai^.—AssuTed\y not. JOHN^ THEODORE MlSJNT.morn. • Examined bi/ il/r. Sherwood. ' ' Mr. Misnni. — I left Montreal in the spring of 1816, to go to the Indian country, in company with Mr. Archibald • In consequence of the application made to Government on this occasion. Sir John Sherbrooke issued the Proclamation of the 16th July, 1816, which will be found in the Appendix, Letter P. Printed copies of this Proclama- tion were immediately sent up by a light canoe to Fort William, which place they reached on the 22d AugUst ; but it was then unfortunately in the possession of Lord Selkirk, who refused to let them be sent into the in- terior ; and though afterwards, it is believed, such as were addressed to those Magistrates for the Indian Territories who were connected with the Hudson's Bay Company, were forwarded, those addressed to such as were connected with the North -West Company were detained at Fort William. 133 Korman M'Lcod, Mr. Alexander M'Kcnzie, and Mr. Henry. We stopt at Fort William, and vrc found Dr. M'Laughltn there. We left him at Fort William. Mr. Sherwood. — Did Mr. Simon Frascr, or Mr. John M'Donald, accompany you .' Mr. Misani — No, they did not. ' ' Mr. Sherwood. — Where, in your route, did you first see them f Mr. Miftnvi.^X first saw them on my return from Fort Douglas, at Riviere aux Morts \ they had come from their winter quarters. Mr. Sherwood. — Was it possible these Gentlemen could have come from Red River } Mr. Misntii. — No, because I must have met them in going up, as I merely went to Fort Douglas, and returned immediately. JSIr. Sherwood. — Did you see Dr. M'Laughlin after leaving him at Fort William ? Mr. Misatii.— Yes, I found him also at Riviirc aux Morts on my return. Mr. Sherwood. — You, Sir, I believe, in conjunction with another ofliccr, received leave of absence, at the solicitation of the North-West Company, to enable you to go to the In- dian country, to report the actual state of affairs, according to your observation ? Mr. Misani. — Myself and Lieutenant Brumby received leave of absence for six months. I know it was in conse- quence of the application of those Gentlemen, and I saw a letter to Sir Gordon Drummond, applying for leave of ab- sence to be granted us. Mr. Shencood. — Do you recollect seeing Mr. Leith on your route ? was he with you at Bas de la Riviere ? Mr. Misani. — Yes, I saw Mr. Leith on the 20th June, at Bas de la Riviere. Mr. S/ierwood.—Wzs Mr. M'Leod with you there .? Mr. Misani. — Yes, Mr. M'Leod accompanied us there. Mr. Sherwood. — Do you know any thing of a meeting of savages, commonly called a council, and were you and Mr. Brumby present at any such council ? Mr. Misani. — I and Mr. Brumby were present at a coun- cil held at Lake la Pluie j Mr. M'Leod and Mr. Leith were also present. Mr, Sherwood. — Was any speech made to the Indians j by whom was it made •, and what was its purport ? Mr. Misani,— l/lr. M*Lcod made a speech, through the i> i, m Si'r I < f.i ■ 134 ir ^^i! i -f medium of an interpreter, in which he explained to the In- dians the violences which bad been committed at Red Hiver, and at Bas dcia Riviere. Mr. M'Leod said that they had received news of Fort Gibraltar being destroyed, and>that they would hold a council amongst themselves, to consider vrhat was the best to be done, and the result should be com- municated to us. Mr. Leith said afterwards, that they had determined, as they knew that cannon had been planted on the banks of the river to prevent any passage, and that the lives of many hundred people in the interior depended upon the provisions they had above, to arm themselves, and go to fetch those provisions; that they would, if not molested, pass the Settlement singing, and return in the same way; but, if attacked, they were determined to defend themselves. The same was afterwards told to me by Mr. M'Leod. Mr, Sherwood. — Do you know that these Gentlemen did arm in self-defence ? • s < Mr, MisarJ. — Yes, I know they did. Afr, S^irreood. — Do you know that the North-West Company have many hundred persons in the wilderness de» pending upon them for their daily nourishment ? Mr. Mis ant. — Yes, I know they have an immense num- ber of persons in their employment through the Indian «:ountry. Mr. Sherwood. — You, being well acquainted with their object, did you consider it a justifiable one; and did you, after you knew their apprehensions of being attacked at fort Douglas, continue willing to accompany them ? Mr, Misani. — Yes, I had no objection. I had said I tvould go, and I saw no reason for changing my mind. Mr, Sherwood. — You, { suppose, had no intention of attacking Fort Douglas ? Mr. Misani. — No, 1 had nothing to do with them. Mr. Sherwood. — But if they had attacked you, you pror bably would have defended yourself .? Mr. Misani. — Yes, most certainly, if attacked, I woul4 have done what I could to defend myself. I HUGH BENNERMAN, szoorn, . Examined hy Mr, Sherwoop. ^ ^ , Jlfr. Sherwood, — Do you know Michael Hedcn, who has |}een examined as a witness in this case ? Bennerman, — Yes, I know him very well. Mr. Sherwood. — Did you ever have any conversation 135 with him on the subject of the battle of the 19th June} and what did he tell you» and where and whei* was it ? Bennerman. — I saw him in this town of York last sum- mer, and he told me that Mr. Scrapie's party fired first. Cross-examined by the Attornst-General. Atlomey'General. — Xlhttt did this conversation take place ? Bennerman. ''•It took place at Ashley's, and we then went to Hamilton's, and he said he would go to Mr. M'Ken* ziei and tell him the whole truth of the business. Mrs, WINIFRED M*NOLTYy sworn. Examined by Mr, Sherwood. Mr, Sherwood, — Are you acquainted with Michael He- deU) the same person who has been about the Court for some days, and how long have you known him ? Mrs. M* Noll t/.— Yes, I know that Michael Heden, and have known him for upwards of six years. Mr. Sherwood. — Would you, or would you not believe him upon his oath, from all you know of him ? Mrs, M'Nolty. — ^No, from his general character, I would not. Mr. Sherwood, — Have you at any time had any conversa- tion with him relative to the affair of the 19th June ; and what did he say to you relative to the conduct of Mr. Semple, and the party that were with him on that occasion? Mrs. M*Nolti/. — He told me these words : " We can " not blame the Half-breeds, for our side fired, first and if ** we had gained the dayi we should have done the same, ** or as bad, to them." Mr. Sherwood. — You are quite sure this Mr. Michael Heden told you that ? repeat what he said, that the Court may distinctly understand it. Mrs, M^Nolty. — I am quite sure that it was Michael Heden that told me so \ he said, " It has been a bad busi* " ness, God knows, but we can not blame the Half-breeds, " for it was our side who fired first at them, and if we had " gained the day, we should have served them the same, op ** have done as bad to them." ! ik. 136 li; % » m ' i-„i .^li'isA .'«iJi tA iiliiljij 3«1*V'.» i^v^'y'ti: n.'ll ftri whi ilj.-y, CHARGE TO THE JURY, B^y Mr. Justice Boulton. "^ ^ ::\ . • Gentlemen of the Jurj/j This is a trial, which must have fastened itself on your minds, I am sure, from the very extraordinary manner in which it has been conducted, and the very extraordinary cir- cumstances that have been brought before you; and I am sorry to say, that the greater part of my duty will be to endea- vour to wipe away from your minds, any impression which evidence unconnected with the charge, may have produced- The principal question, indeed the only one fervour notice, is, whether this Indictment which I hold in my hand, is, or is not, well founded ? It is an Indictment for Murder, charging four persons, as principals, and a number of others, as accessaries, before and after the fact, and thus embracing all the varieties which distinguish the charge of murder. This charge, thus divided, embraces not only different points, but the evidence applies itself to different particulars, and different persons. In that which you have heard, you will find a great deal that does not apply at all, as well as that difi^ers in its application. Before I call your attention to the testimony, it will be necessary to see who you are trying. You have not before you any of the principals, but you have a number of accessaries before and after the fact. By the Indictment, I perceive the first character is John Siveright, who is charged as accessary before the fact, to the murder of this unfortunate Mr. Semple ; and there are five after, viz. Alexander M'Kenzie, Hugh M'Gillis, John M'Donald, John McLaughlin, and Simon Fraser; Mr. Siveright is then. Gentlemen, the only accessary before the fact, and there are six after, for Siveright, I now see, is charged both before and after the fact. The charge against them is tha( 137 •of murder, in various degrees, by helping one Cuthbcrt Grant to commit it, or receiving him after he had committed it, knowing he had done so. I laving before you the charge and the persons accused, it will be my duty, before we go into the case, to explain to you, as well as I am capable of doing, the Law connected with the right of putting these persons on trial. The OiBcers of the Crown could not have put them on their trial, against their will,till they had convicted or outlawed some of the principals, as they are called in law; but the accused themselves, it appears, have the right to insist upon having their trials, and they have chosen to have them ; but although they have chosen to be put upon trial, they can not be liable to judgment till all the principals are tried or out- lawed. If convicted, they must remain in gaol as long as there are any of the persons accused as principals to be tried. I mention this to you, because I wish, as the two principals who have been tried have been acquitted, that, before you return a verdict of guilty, you should be most clearly satis- fied of the Indictment having been made out against one or other of the principals, as well as against the Gentlemen who are before you. I wisli to impress this strongly on your minds, because, if afterwards the principals should be tried and acquitted; although these persons are found guilty by you, they must be discharged ; that is, some of them, the accessaries before the fact, because it is only to murder, as charged in the Indictment, of malice aforethought, or malice prepense, that there can be accessaries before the fact. There are various species of homicide, and instead of murder, it may, on the trial of principals, turn out to have been in self-defence, or there may be other circumstances which may remove the charge of murder, by shewing there was no ma- lice premeditated. Now to judge whether this was murder, or whether it was in self-defence, that these lives were taken, you must bring your minds, as well as you are able, to re- collect the evidence on the part of the Defence, which went '-) u [•■ ' y 1 '\\ #%'« 4> 138 to shew that Cuthbert Grant, and the others charged, were not guilty of murder, but that it was in self-defence that this dreadful slaughter took place. Whether they are guilty of murder, or manslaughter, or nothing at all, it being in self- defence that it happened, it will be for you to say by your verdict. And then you will have to recollect, that it is ac- cessaries only that you are trying, and say how far they are guilty of the Indictment. Your memory will, I fear, hardly be able to recollect the testimony of so long a trial, and where it has been so contradictory ; for it is right I should tell you, that a great deal of contradictory evidence has been offered on both sides. The prisoners' Counsel, with great ingenuity and earnestnesss, endeavoured to prove that it was not malice prepense that occasioned the death of these unfortu- nate people, and therefore could not be murder} contending, from a variety of circumstances, that a state of confusion and war existed in that country. This may apply to two or three of them, but it will require great care on your part to distinguish, when you come to the main point of this un- happy affair, viz. whether the first lire came from Mr. Semple and his party, or from the other. There is great confusion and difficulty about it, from the very contrary evidence which has been given. First, we have direct evi- dence that it came from the other party, and that Mr. Holte fell by the first shot, and Mr. Semple by the second ; then, on the other hand, we have a string of evidence to the contrary, and they all swear it came from Governor Sem> pie's party. It is the most important thing in criminal trials, to weigh the evidence, because, believing the one side n^ay subject a man to the loss of his life, if in a case of felony ; whereas, if credit is given to the other side, the prisoner i» acquitted ; so that I say the great difficulty in all trials, and particularly in criminal trials, which are so serious, is, which evidence is to be believed when witnesses contradict each other. These observations have taken up a greater share of 139 your time than I intended, but I hope they will be useful to you. I have no hesitation in saying, Gentlemen, that if you do not consider the evidence distinct, as to the death of this unfortunate Gentleman, from malice prepense,you ought not to convict ; and if you think it took place in self-defence on the other side, you ought also to acquit. According then to the evidence, to which we must now look} on the one side, it is said the Bois-brules, upon seeing Mr. Semple and his party, gallopped up and formed a sort of half-circle round these unfortunate people } and one of the Half-breed party, who was tried the other day and ac- quitted, (a circumstance which is of no consequence to this trial), came out from among them, and rode up towards Mr. Semple, and some conversation passed, which I dare say you will recollect. At last, by some provocation given by this man. Governor Semple caught hold of his bridle, and the butt of his gun, and was going to make him a prisoner, or called to his men to make him so. Boucher slid from his horse on hearing this, and ran away, and immediately guns were fired from the Bois-brules party, according to this evidence. If this evidence is believed, if you are satisfied with it, then it is undoubtedly murder. If you are perfectly clear that the Bois-brules party fired first, it is unequivocally murder. When I say this, I mean it is so, if you pay no attention to the circumstances which have been adverted to so frequently in the course of the trial by the prisoners' Counsel, and rela- tive to which evidence has been given at a very great length. I allude to the animosity said to exist between these two great Companies ; for if, on the other hand, you think that the animosity subsisting between these two Commer- cial Companies extended itself to all belonging to them, and rendered the country in such a state of exaspera- tion, that it was impossible for them to meet without coming to violence, it may diminish the homicide; but the excitement which has been shewn is not close enough T ''i ;a ^v^'l m ' "^^ w \} ■<(•< %] ' i 140 to be a defence, unless you believe that Governor Semple's party fired first. In the great mass of contrary evidence, I am truly glad that it is with you, and not with me, to de- cide the difficulty. You, I am sure, will weigh well all that has been said by the witnesses on both sides, as being the only way to arrive at a satisfactory decision, upon this very important trial. If, Gentlemen, you find that it is manslaughter that has been committed, you will then dis- charge these Gentlemen ; if, however, you think proper to return a Special Verdict, it is in your power to do so, and then the circumstances connected with your jurisdiction will be fully considered and decided according to law This verdict will only be returned in case you see a difficulty on the subject of jurisdiction. If, however, the offence in the principals amounts in your opinion only to manslaughter, then these Defendants must be discharged, hecause there is in law no such thing as accessary to manslaughter. Soiicitor-General. — I beg your pardon, my Lord, but after the fact, there can be accessaries to manslaughter as well as murder. ■ -• ?.*;...,. Chief Justice. — We know there can be accessaries after manslaughter ; but the charge on the present Indict- ment is that of accessary to principals in murder ; and if it is only manslaughter that Grant has committed, they can not, on this Indictment, be accessaries after the fact, be- cause the fact charged is murder, and as ta accessaries before the fact, there can be none to manslaughter. Mr. Justice Bouilon.— There is, Gentlemen, no such thing as accessary to manslaughter upon this Indictment, which charges the prisoners with being accessary to murder, and therefore it is no matter what the law is upon the subject. I was only endeavouring to give you as correct an account as I could, of what was the Tiaw upon the case that you have to try. I will, in this place, say a word to you relative to the testimony against Mr. M^Leod, as given by Mr. Heurter. I 141 His evidence goes this length} that in 1816, he left Mont* treal in compahy with Mr. M'Leod, and the other prisoners, to go to the Indian country } that going along, they met the settlers coming from Red River, and got intelligence of the death of Mr. Semple and his people i that upon this, Mr. M'Leod ordered them all to go on shore, which they did ; and Mr. M'Leod, being a Magistrate, an examination took place into the circumstances of the transaction, and a number of the survivors were sent to Montreal to give evidence upon the trial of different persons j the party then pursued their way to Red River, and when arrived there, they made more enquiries, and it appears Mr. M'Leod gave all the people a dram of liquor, and a quantity of clothing to a part of them. It is not possible to suppose that these Gen- tlemen, coming from Montreal, could know any thing of what had happened at Red River, and therefore, if they are guilty at all, it must be from what they did afterwards, for they could not have known, by possibility, of what was going on at Red River, when they were at Montreal ; and what they did afterwards is supported by the most slender of all possible testimony, and will probably go for nothing, except as you may think Mr. M'Leod's speech important, as shewing the disposition of the party afterwards. Before I read to you the evidence, or give you an outline of it, I will call your attention to the nature of the jurisdiction under which you are empowered to try offences which, like this, are committed in the Indian Territory. Certificates under the Great Seal of the Lower Province, you will re- collect, were put in during the trial, as it is only under such an authority that you can have the power, and the whole is brought about under a British Act of Parliament, passed in the 43d year of His present Majesty's reign, which gives power to the Government of Lower Canada to transmit, under the Great Seal of that Province, offences committed in the Indian Territories, to any Court of this Province for i* \ 'V, .. \ /: i •%,: ^ 142 :\ when there was the more ordinary route by water. You will have to weigh very distinctly, whether it was for fear of losing their provisions, or whether it was to avoid being seen in passing the fort, and by that means more certainly effect their object of destroying the Settlement, by taking it unawares, or by surprise; and after you have done this, the other question must be determined, who fired first ? Tlierc has been a great deal of testimony, Gentlemen, relative to the taking of pemtcan, and that on both sides of the question : with that you have very little to do, except as it may account in some degree for the parties going armed ; for you can not consider it any justification for murder, that you are able to prove the person who was murdered, to have committed a robbery on another person, or even on yourself, unless you prove he was in the very act of robbing you at the moment you took his life; and then it is a complete justification, because you are allowed to defend your property at every hazard. I therefore say, Gentlemen, though much has been said about taking pemican, it has very little to do with the case. Indeed you will recollect, that it was a question, how far any evidence upon the subject ought to be received. My Learned Brothers, however, considered that the circum- stances might be evidence to a certain extent, and that it was legal evidence for you. It amounts, however, to nothing more than this at last, that a great deal of bad blood, ex- isted between these people, and that they were perpetually annoying each other in everyway they could think of; and amongst others, by the taking of their provisions from one another. You will remember, the witnesses have described -i »i r-fi*-^ 145 this pemican as indispensable to the carrying on of the trade in that country, as it will keep for a long time. It is a sort of food which the witnesses represent to be procured from the Plains, and very necessary for their support. The evi- dence is so confused) from the very great variety of circum- stances apparently but little connected with the charge to which it refers, that it is very difficult to determine what is important, and what is not ; but you will endeavour to recoU lect its application as well as you can. But tlie main point will be for you to try and satisfy yourselves, who fired first. The evidence on the part of the Crown says, that Governor Semple received the first shot, that is to say, his party did, as a Mr. Holte was the first that was killed, from the Half- breed party; and that a second was fired from the same quarter, by which Mr. Semple was wounded, before any shot was fired at all from the other party. This fact is sworn to by difftrent witnesses, some more fully than others ; but all unite in saying, either positively or to the best of their belief (and they state circumstances which lead to the belief), that this was the case. On the other hand, without at present referring to particular witnesses, you will recollect that it is sworn. Governor Semple reproached his people for not firing, and that immediately two shots were fired by some of them at Boucher, and that it was not till after them, that any firing by the Half-breeds took place. Here then. Gentlemen, you are placed in a very difficult situa- tion, and ought to use great caution in examining the evi- dence, as when a little malice oxists in the mind of a wit- ness, it is difficult to say to what lengths it may lead him j and in the present instance both can not.be correct. If, Gentlemen, you shall, upon investigation, be of opinion that k is proved that the firing commenced on the side of Mr. Sernple, then there is a most complete defence, because, although neither party had any right to go about armed hi this manner, yet it is very natural that, when they met with V Vu ! I- 146 armi in their hands, from the state of mind in which unfof tuiutely it is proved they were, they should come to blowi ; and if one party fired upon the other, then that which was fired upon would be excusable and justified in using their arms. Doth sides swear, and that most positively, that they received the first fire, and that it was not till after a second shot even had been fired at them, that they returned it, and that then the firing became general. I repeat it to you. Gentlemen, that I rejoice sincerely that it is you that are to determine, and by your verdict to say who, in your judg- ments, have spoken the truth. To assist you, by refreshing your memories as to what each have sworn, I shall now pro- ceed with the evidence } and in proportion as it is tedious to hear, I shall endeavour to point out to your particular atten- tion, parts that might otherwise escape your notice, and which really are material. We had got to that part of tills melancholy transaction in which the firing became general, the fatal result of which was, that the greater proportion of Mr. Semple's party were killed. I shall just mention the heads of evidence, and not trouble you by reading the whole. The battle being over, nothing else particular occurred that day, according to Heden's testimony. Next day the dead body of Mr. Semple and others were brought to the fort. Mr. Semple wounded in the left breast, but could not tell whether by musket shot or not, because the body was all over spear wounds. On this day, Grant and others came to the fort, and ordered them away, and they prepared to go, and actually went away on the 23d. They went away in boats — he knows three or four escaped besides himself, but can not say how Mr. Pritchard got off. We now go on to the 23d, when the party went away altogether from Fort Douglas, being guarded as far as the Frog Plains by Boucher; nt day-light, on the 24th, they meet a party in nine or ten canoes, headed by Mr. M'Leod, and were made to go on shore, after some enquiries for Mr. Semple and Mr. Robcrt- r ' I 147 *on, who were not there, and for Mr. Prltchard, who yo'i recollect was therC) and gave them the history of the melancholy business. He recognizes Mr. M'Lcod as be- ing there; also Mr. M'Kcnzie, whom he distinguishes by the title of Emperor ; he speaks also to Dr. M'Laughlin j he Saw Sivcright ther^ the next day, he speaks also to Mr. M'Donald'i l>eing theri, but not to Simon Fraser, or Mr. M'Gillis : he mentions Other persons who were there, but as they are not before you, it is of no consequence to notice who they were. Some of the Half-breed party carr.e to Netley Creek while they were there— came from Fort Douglas — some of those who had been in the battle of tlie 19th June ; and the witness says, though he does not know of any presents being made to them, he does know that rum and tobacco were served out to them. He concludes by say- ing he was sent a prisoner to Fort William, and thence to Montreal. Upon his cross-examination, he says he made a deposition like what he has made here, that is, the same facts. I remark here to you. Gentlemen, that, though very improperly, yet it appears, affidavits made before Magistrates have been printed. It is a very unwarrantable action, and ought to be deeply censured. Witness continues, that hs does not know where this party with Mr. M'Leod car.e from— -is sure he saw Mr. M'Laughlin and Mr. M*Donald at Netley Creek, and that rum and tobacco were given to the people who came from Fort Douglas, and, he adds, who iiad been in the battle of the 19th of June. To an enquiry put in reference to each of the Defendants, he answers, that he did not see any thing like committing a murder, or help* ing to commit it. He is here questioned as to hovo they were surrounded, and he describes it to be in the shape of a half-moon, but that their retreat to the fort was not cut off completely. In this particular, you will recollect he contra- dicts himself, as he swore, in his examination in chief, the reverse. He is then examined as to who fired £irst, and *L 2 / 1 (V '<-< 1 i 1 1 1 1 Ii\ w 1 1 148 1 I') maintains that the Half-breeds did ; that they fired two shots before his party fired any } and asserts, that this is the ac- count that is true, and is the one that he has invariably told. In this he i?, you will recollect, contradicted by the woman who was examined, and by another witness, who swear that at different times he has told them that Mr. Semple's people fired first, and deserved all they got ; but he swears he never told any body so — he has heard that one man was killed on the Bois-brulea' side. The next witness is one who went to Qu'Appelle with Pambrun, was taken prisoner by Cuthbert Grant — while a prisoner, heard of an expedition against Governor Semplc — did not hear a speech made by Mr. Alex- ander M'Donell to the Half-breeds and Indians at Qu'Ap- pelle, or in going down— a part of the Half-breeds went to Brandon-house — heard the Half-breeds frequently talk of their intention to destroy the Settlement, and the fort at Red River. When he got to Fort Douglas, heard it ru- moured there that they were to be attacked, and told them what he knew — goes on to the 19th June, and gives nearly the same account as Heden, with whom he made his escape across the river in an old bateau. He states about their all going away, and recognizes at Netley Creek, Mr. M'Kenzie, and also Mr. McLaughlin, but not the others. Saw the Half-breeds arrive from Fort Dou- glas, and that they were well received i but did not see Grant among them, or Morain. Saw Morain afterwards at Point au Foutre — saw nothing on part of prisoners like giv- ing countenance to murder. He also swears, that the Half- breed party, in surrounding them, got between them and the fort, completely cutting off their retreat. There is no- thing more in his testimony worth your notice. Mr. Bourke is the next witness j he swears he was store-keeper to this Colony, and gives nearly the same account of the beginning of the business as before — that he was sent for a cannon by Mr. Semplc, went back for it, and did not again join the r:l 149 party— don't know therefore about the fight. In g<" ing back he got fired at by some people in bushes, and was wounded, but got back to the fort — had sent the cannon back before, so that it never reached Mr. Sample. Another man who was with him was killed while trying to get away. He alsp saw Mr. Semple's dead body at the fort the next day, and proves that they were all sent away. Gives the same account of meeting Mr M'Leod's party, and going to Netley Creek. He also gives an account of a conversation between Mr. Al*Gillis and Alexander Macdonell, relative to taking the fort } this no doubt you remember, the one being for attack- ing it at once, and the other for forcing it to surrender from want of provisions. From there, witness states he was sent to Fort William, kept there some time, and then sent to Mont- real. Mr. Miles Macdonell proved that the regulations he thought it right to introduce in that country, were directed equally against both parties, that is to say, it was a general order to prevent provisions being taken out of the district $ but I do not think there is any thing important in Mr. Mac- donell's testimony. He speaks to ajrgressions committed against their party, but they need not be taken into your notice, as they can not justify additional outrage. Hu;^h M'Lean gives the same sort of testimony as the two first witnesses, except that he was not at the battle ; he was the man who drove the cannon, and went back with it to the fort. Mr. Pritchard gives a very pnrticular account of every thing that occurred ; he heard the conversation between Boucher and the unfortunate Mr. Semple, saw him lay hold of the bridle and gun of Boucher, who slid ofF his horse, and ran some distance before he stopped, but Mr. Pritchard does not say who fired first. He saw Mr. Holte struggling on the ground, and then tried to save himself; all was in great confusion, and thefiring was general ; shortly after he saw none of his people, but one Gentleman, left standing, and they threw down their arms, and proposed to give themselves i ff?4 li 150 1 ; up. One was killed upon the spot, and with great d ifiiculty, through the prayers of a Canadian belonging to their party, the witness, Mr. Pritchard, escaped with his life. He nego- ciated the terms upon which they were to go away, and some time after they all went away. He had to go several times backwards and forwards to the Frog Plains, and on one occasion owed his life to Boucher, who saved him from some who attacked him ; he describes fully his meeting with Mr. M'Leod's party, and besides M*Leod, he recognizes Mr. M*Kenzie, and he believes Mr. M'Gillis, but is n jt sure as to him — he knows of the arrival of some of the Half- breeds from Fort Douglas, but nothing of their reception, as he was a prisoner. Some letters are proved by Mr. Pritchard to have been the writing of Mr. Scmplc, and they were put in and read during his cross-examination. Patrick Corcoran was next sworn ; he was one of the party who went to Qu'Appellc with Mr. Pambrun, who was also examined. A great deal was said by these witnesses about some harangues or speeches, and about the Indians being painted, and giving the war-whoop, but it is all contradicted by the witnesses for the Defence ; it is therefore not necessary to puzzle you with repeating it •, you can not but recollect it. This forms the principal evidence for the prosecution. On the part of the prisoners, a great deal of testimony has been given in the beginning to shew the aggressions committed by the taking of this food, the pemican, froni them, also the taking and destruction of forts. Evidence is also brought, and a great deal of it too, and by a groat many witnesses, to shew that they had no intention whatever to molest or disturb this Settlement. That they merely wanted to take their provi- sions in safety, and their going armed was a measure rendered necessary by the fear they had of being attacked. They prove the river to have been, in some degree, blocked up against them, and that they were compelled to go by land. In support of their peaceable disposition, they prove the ,1 151 orders given, and that they obeyed them, going as far ui a large swamp would allow them to do, from the fort, wlshiui; to pass them unmolested. They say they thought they had done so, till, as they approached the Frog Plains, they saw they were followed by Mr. Semple and his party. That they then topped, and got Boucher the Canadian, who spoke a little English, to go and ask what they wanted. 1 he con- versation that ensued, you can not have forgotten, as you have heard it so often. Boucher was examined before you ; he told nearly the same story as the other witnesses— he did not admit the insolent language, to be sure - but, upon hear- ing a shot whiz by his ear, which lie says was the second that had been fired from Governor Semple's party, he got off his horse, and ran away some distance, and that then the firing became general, and lasted for a quarter of an hour. During that time you will recollect that Boucher was ly'ung on his belly in the grass } making observations, as I suppose. On the subject of the party that was going with M'Leodand these Gentlemen, a great deal of evidence was given. It was admitted that letters had been written to Fond du LaC to taise the Indians, but it was only to go up with them in case they should be attacked, or rather, by taking a strong force with them, to induce the people at the fort not to carry into effect what it was understood they intended to do, viz. pre- vent them going up past the fort to the posts the North- West Company had beyond Red River. In short, the evi- dence for the Defence is, that they only wanted to trade; that for their trade this meat, called pemican, which abounded on these Plains, was necessary, and that they wished to secure a supplv for their traders, I am afraid I have been tedious, but I hope you now understand the case better. Here then ends, Gentlemen, the evidence on the part of the Defence, as well as the Prosecution. It has taken up a great deal of time, but you now have the whole case before you. \\>i 15'i i il The first question for you to consider will be, has a murder actually been committed at all ? You arc sure that a life has been lost, but although you have that certainty, yet it does not necessarily follow that it was a murder because there was a life lost. There arc a variety of degrees of homi< cide, and to decide to which of them this transaction belongs, is your province. The destruction of a fellow-creature from malice prepense is murder ; the taking away life in defence of one's self, or one's property, is justifiable homicide*, and if death ensues in a quarrel or passion, it is manslaughter. To which of these three degrees any particular case belongs, it is the province of the Jury, who try the case, to deter- mine. — If in this case you think it was from malice, inten- tionally with a design to kill, that these people went up to Governor Semple's party, then the charge is made out against the principals, and places you in a situation to con- sider the guilt or inhocencc of the accessaries. If, however, you are of opinion that it was in defence of themselves they iired, and after the party with Governor Semple had fired upon them, then a complete justification is made out for the principals, and of course you know there can be no acces- saries guilty. But, I fear. Gentlemen, you will not, were you even to take the testimony on the one side only, find such a case as that made out. I am afiaid there is no proof of that kind, were you, as I say, (which nevertheless you must not do, for you must weigh the evidence on both sides, and judge impartially between the two), to rest upon the testimony on one side only. , It then remains to enquire whether you can, with propriety, consider it manslaughter ? In this part of the enquiry, you will remember that these two parties belonged to two Trading Companies, both of great importance, and both employing a great number of servants, who are engaged in constant broils and quarrels with each other, proceeding to acts of violence whenever they met, and 153 that, in this temper of mind, they saw each other on the 19th June, and immediately the unfortunate engagement took place. This battle did not result from the passion of the mo- ment, there is no testimony of that nature, and the law, in a hundred instances, considers the killing a man, though provo^ cation may have been given, to be murder. So, in this in- stance, notwithstanding all the evidence which had for its ob- ject to prove the existence of that passion, which would reduce the killing to manslaughter, I fear you will not find it. There- fore, if you acquit these persons, it must be on the ground that you do not believe they fired first, or that, from the conduct of Mr. Sample and his party, they were justified to do so ; and in either case these Gentlemen are acquitted. In- deed, whichever way you look at the case against most of these Gentlemen, there is, apparently, nothing that can be called evidence to prove them guilty. Some are not even sworn to as being there at all, that is, at any of the places, and others appear to have taken no step at all in the busi- ness. Indeed, if you believe all that has been said on the side of the Brules, the countenance given by any can not be considered as wrong. If you believe they went to carry provisions, that they could not go by water for the reasons sta'ted, that on setting off they received orders to pass at as great a distance from the fort as possible; and lastly, if you believe the reason that they did pass, and the reason they went at no greater distance was because of the morass; these, taken in connection with the fact, that Mr. Semple and his party did go after them ; and if you also believe that the Hudson's Bay party fired upon the Half-breeds, then no body that is accused is guilty. But the evidence is so con- tradictory, that it is hard to say which to believe ; and the circumstances which each party, by its witnesses, represent, are so diflferent, that you will have very great difiiculty. But you must decide whether it is murder, or manslaughter, or whether it was in self-defence that these lives were lost. r 'f;l i iiWl 'r i 154 mi If manslaughter, then. Gentlemen, there is an end to (he vrhole aSzir ; all must be acquitted. If actual murder on the part of Grant, or the other, then you will say whether these Gentlemen have been proved to be accessaries. I be- lieve I have stated to you every thing that is any way im- portant in the evidence, and all that is necessary on the question of law. I have not done it very professionally, be- cause I was afraid, if I did, instead of assisting your judg- ment, which was my object, I might only confuse and puzzle you ; but you now know as much of the law as is calculated to help you, without distracting your attention in consider- ing the question which must first be decided. Has murder, has manslaughter, has self-defence been committed, that is, has it been in self-defence that the lives of this unfortunate Mr. S mple and his companions have been taken ? The question must puzzle you to decide. If you are satisfied there was no malice in Grant and Morain, then they can not be guiky, uor can the accessaries. If you believe, from the accounts given of their conduct, that it was murder in those charged as principals, you are then to enquire whether these are accessaries, or any of them ? Excepting against Mr. M'Leod, I do not think there is any evidence that can be considered as shewing that countenance was given in any way to the Half-breeds. Against him you must judge what weight the evidence ought to receive, and how far it should be considered as proof of approbation and protection to those who committed the murders. (It was here intimated by the Bar, that Mr. M'Leod was not before the Court, nor included in the Indictment, upon which Mr. Justice Boulton continued his Charge). Gentlemen, I was going to have said, that there was not a scrape or scintilla of evidence, ex- cept against Mr. M'Leod, and that against him you would judge of its weight. 1 had thought that Mr M'Leod was pne of the Defendants before you, but I find he is not. Against the others then there ifi not a scrane, not a sgintilU unc€ 155 of evidence— not of any thing before the fact 5 and after th» fact, only the giving of the usual supply of clothes to their servants. You will, therefore, consider of your verdict. The Jury then retired, and in about three quarters of an hour returned into Court, and delivered, by their Foreman, a verdict of NOT GUILTY ; which, being recorded by the Court, the Jury were discharged. i^ IT d It will be recollected, that the Gentlemen thus acquitted, were arrested by the Earl of Selkirk at Fort William, in August, 1816, on the charges of High Treason and Con- spiracy, as well as Murder, and that the buildings and pro- perty of the North- West Company at that place were forcibly seized, and subsequently retained by an armed force under his Lordship's command. The North-West Com- pany represented at the time, that these accusations were merely a pretext set up to palliate the preconcerted plunder of their property and destruction of their trade ; while, on the part of Lord Selkirk, it was alleged that th^- crimes com- mitted by the artners «f the North-West Company were so atrocious as to justify his Lordship's proceedings against them 5 and for some time the public opinion remained in suspense as to the real merits of the case. So far as regarded the seizure of property and the interruption of trade, the point was decided by the Prince Regent's Proclamation of the 3d May, 1817, (for which see Appendix Q,) in consequence of which the North-West Company recovered possession of their property, and re-established their trade •, but that Pro- clamation left the rights of parties, and the crimes alleged against individuals, to be investigated and decided upon by the law ; and until such investigation could take place, much uncertainty necessarily prevailed, from the contradictory ii < .•"I' I 156 ]! h f 1 i I Statements and af^davits which had been laid before the Pubiic. The trials at York have, however, decided the point as to the alleged m aders ; and the charge of Ai^/i treason has never been followed up, nor even mentioned, since it served the desired purpose of figuring in Lord Selkirk's warrants as a pretext for seizing and examining the books and private papers of the North- VV est Company. In regard to the charge of conspiracij, the Attorney-General declined pro- ceeding upon it, and his reasons for so doing were, to quote his own words in addressing the Court, (see his Address to the Court, at the close of the trial of Cooper and Bennerman, page 197). ** I found that I had not evidence sufficient to ground a ** charge against those individuals whom alone we are ** authorised to try / indeed scarcely a shadow of evidence, ** except as we might prove them to have been connected *' with those over whom we have no jurisdiction, and whom ** we therefore cannot charge •, and this evidence even went ** almost entirely to conduct for which these same persons ** have been already put upon their trial in another shape." The explanation of this is, that the Court had previously decided that they had no jurisdiction except for offences ex'- pressly specified in the Commissions under the Great Seal of Lower Canada, which remitted the prisoners lo this Pro- vince for trial. Now the Commissions for remitting the cases of Boucher and Brown for murder, and of Cooper and Bennerman for stealing cannon, and other offences, did not specify among those other offences, the charge of conspiracj/t and therefore the Court could not try them ; but the Com- missions remitting the cases of the Gentlemen arrested at Fort William, did expressly specify the charge of conspiracy, and the Court Aarf power to try them j but there was " not ** evidence sufficient to ground a charge against them,'* and *' scarcelj/ a shadow of evidence" except as they , I 157 might have been proved to hove been connected with per- sons over whom the Court had no jurisdiction (for the charge of conspiracy) j and this evidence even went almost entirelj/ to conduct for which these same persons had al- readj/ been put upon their trial in another shape ; " that is," the only evidence «^flw?,9/ these Gentlemen, went to connect them with Boucher^ Broxsn, Cooper and Benner- man, in conduct for which these persons had already been tried and acquitted. The charge of conspiracy, therefore, so far as the Gentlemen arrested at Fort William might have been supposed to be implicated, is abandoned by the Attorney-General as unfounded, and thus all the charges against them are satisfactorily cleared up. And as these charges are the only justification heretofore set up for the Earl of Selkirk's proceedings at Fort William, it remains to be seen, what Defence will now be made for these proceed- ings, as it is not to be supposed that they can be passed over without some legal investigation. i "I 1 1 9 % ■1 ■1 If K '%■ r Afv'i I ll f ik ! mlim iii ii*. TRIAL OP JOHN COOPER AND HUGH BENNERMAN. I- f • •/ h f t ri proper bias with the Jury, and in no way connected with the case. The charge brought against the prisoners is a charge of robbery, a charge of having stolen a number of pieces of can- non. If any individual has gone to Scotland in the manner the Learned Gentleman alludes to, let a proper notice be taken of such conduct ; but it can certainly present no answer to the allegation against the prisoners, of stealing cannon, or any justification for so extraordinary a question as, what was done six months before with them, or even who they be« longed to six months ago ; but so very extraordinary a ques- tion as, whether there was some part of them that was not stolen, can certainly have no relation to the direct charge of robbery, nor can I conceive why so extraordinary a question should pe put. Mr. Sherwood,—-! put this extraordinary question, be- cause the Attorney- General has charged the prisoners at the bar with a robbery, which they have not committed, nor ever had any intention of committing, though, from the manner in which the witness, Mr. Bourke, speaks of the cannon, the Jury might be led to suppose that it was impossible they could be made use of, and that the taking of them away was a wanton and felonious appropriation of the property of the Earl of Selkirk to their own use. That the contrary is the fact, is well known to Lord Selkirk, and those who have commenced this prosecution, though perhaps it is not to the Learned Attorney-General. I put the question because I consider it a very important question, and I shall put it again. If I put a question that is improper, I shall be stop- ped by your Lordships, and feel bound to submit to the cor- rection, but I do not consider that Mr. Attorney.>General has the prerogative of stopping me. I think it important, to make this witness prove that there were carriages designed for these instruments of destruction, at the very satne place with the cannon. As to stealing them, they had no more intention of stealing them— they had no more intention of committing a robbery in taking away the guns, than they had of stealing the ovens, and bringing them to this town of York, where, happily for themselves, they were able to get, after putting these cannon out of the way of doing them 171 harm, but where It is not likely they would have reached, had they not taken that precaution. Solicitor-General. — I submit, my Lords, that the Learned Gentleman ought to state the nature of the answer which he expects to receive. This rule is decidedly laid down in M'Nally, and Is a very proper one, I think, because it en- ables the Court to see whether a question is proper to be put or not. The rule to which I refer, is found in M'Nally on Evidence, vol. 1. cap. 3, page 14. ** Counsel ought not ** to call witnesses without first opening to the Court the ** nature of the evidence they intend to examine them to. ** This has been often solemnly adjudged, though not " strictly adhered to in practice.'* Chief Justice Powell, — That rule is applicable to exa- minations in chief, but you are not now examining in chief. In cross-examination the rule is, you must confine yourself to questions put in chief, or more properly speaking, your cross questions must be founded on the answers given to questions put in the examination in chief, and the rule must be observed in this case. '- • Mr. Sherwood. — ^Then I will ask it him on the answer which he gave to the question as to whether they were mounted or not ? His answer was, they were not. My question is, could they not be mounted ? whether the means of mounting them were not at command ? (the question being put^) Mr. Bourke. — Two of them could be mounted, but not more. Mr. Sherivood. — And these cannon you have said were the property of the Earl of Selkirk ; now, Sir, upon that answer I ask you if you happen to know how they be- came the property of that Nobleman, being, and I have be- fore remarked, rather a singular property for a Nobleman to have in his possession ? Mr. Bourke. — No, I do not j all I know I told you be- fore, that they were given me in charge with other property belonging to Lord Selkirk, and I considered them always to be his property. They were included in the list of property given me with the keys. Mr. Sherwood. — You never heard that any of them had been taken from the North-West Company ? Mr. Bourke. — No, I did not. Mr* Sherwood* — In point of fact, you do not know how they became the property of his Lordship ; he might have got them from his father, for ought you know ? t 1 • ' 1 m *" s ■ i i / \ ' \ J f ' } ( t .' . \ 172 Air. Botirke, — I do not know but he might. I can not say that he did not get them from his mother. Mr. Sherwood. — You have said, Sir, they were taken from a house belonging to the Earl of Selkirk, from his dwelling-house. Pray, Sir, did Lord Selkirk live there ? Mr. Bourke. — Lord Selkirk did not live there, but the hosue belonged to him \ it was his property, he owned the house. Mr. Sherwood. — Who lived in it? Men or pigs, or both? Mr. Bourke. — The people employed in the fort lived in It. Mr. Sherwood. — And did the hogs belonging to the fort live there ? On your oath, was it not a hog-stye ? Mr. Bourke. — No, it was not. It was a dwelling-house. Mr. Sherwood. — i)id any body sleep in it ? were there anr chambers ? any bed-rooms ? Mr. Bourke. — People did sleep in it regularly. Mr. Sherwood.— And I ask you again, did not pigs sleep in it as regularly ? Were not pigs constantly kept there ? Mr. Bourke. — Yes, I believe they were. Mr. Sherwood. — Was the place in which they were kept, one of the chambers of which you have spoken as being so regularly occupied ? Mr. Bourke. — I do not know exactly where they were kept. Mr. Sherwood. — But you surely know whether the hogs were in the bed-chamber ? Should you put a hog into your bed-room ? Mr. Bourke. — In that country perhaps we might, on » chance. Mr. Sherwood. — ^The pigs were not in his Lordship's bed-chamber, were they ? They did not sleep together I suppose ? Mr. Bourke. — I do not know whether I am obliged to answer such questions, but I told you before, that Lord Sel- kirk did not live there, but that the house belonged to him« Mr. Sherwood. — You said it was his dwelling-house. Mr, Bourke. — I said it was a dwelling-house belonging to the Earl of Selkirk, and used as such by his people, but I told you oistinctly, that he did not live there. Mr. Sherwood. — And at last we see that this dwelling- house of the Earl of Selkirk was a pig-pen. These people who took away the cannon were, I believe, settlers, and not servants to the Hudson's Bay Company. ki tw 17;{ Mr. Bourke. — They were settlers sent out by Lord Sel- kirk. Mr. Sherwood. — ^There is a difference, is there not, be- tween his Lordship's settlers and the Company's settlers i Air. Bourke. — Yes, there is some difference. Mr. Sherwood.^Do you happen to know whether these settlers were satisfied with their situation? whether they were satisfied with their provisions, either as to quality or quantity ? Mr. Bourke. — I do not know that they were satisfied i there were some who, I believe, would not have been pl<»ised if they had the best that could be got in York. They al- ways had sufficient good provisions, and might have been satisfied, and I believe generally would have been so, if they had not been stirred up to discontent. Mr. Sherwood. — ^I'hat will do upon this subject. I did not ask you whether they ought to have been satisfied, but if actually they were not satisfied. I will now ask you another question. Have you seen any of these good people since you have been in York attending the Court ? Mr. Bourke. — I do not know if they are good people or not, but I have seen some of them at York. Mr. Sherwood. — Do they appear as well satisfied as they were at Red River, or do they desire to go back ? Mr. Bourke. — I do not know any thing about them, whether they are betfer pleased or not. Mr. Sherwood. — You said you were serving them out provisions at the time the cannon were taken. What sort of rations had they ? Mr. Bourke.— 'They had oatmeal, fat pemican, and po> tatoes, in sufficient quantities, according to their families. Mr. Shertvood. — It was in April, I believe, that the can- non were taken away upon sleighs. Was there a good deal of snow and ice in the river ? Mr. Bourke. — Yes, there was a good deal. Mr. Sherwood. — Do you call it a good climate ? Mr. Bourke. — Yes, I call it a very good climate, as good as this, and better than Lower Canada. Mr. Sherwood, — You have mentioned that these people had sticks. Is it any thing so unusual in your country for people to walk with a stick, that you were surprised ? Mr. Bourke. — No, not in my own country, but it was ex- traordinary there, and I certainly thought some harm was meant when I saw them with sticks. ' a '1 s \i! 174 Mr. Sfierfvocd,—'W^ it before Governor M^Donell's Proclamation that these cannon were taken ? ylttortift/'Oettrral. — Whether my interruption is loudly exclaimed against or not, I must oppose such questions. I do, my Lords, most reluctantly interfere, but I consider them such a deviation from propriety, that I feel it an imperative duty not to permit them to be continued, without expressing my sense of their irregularity. As to the displeasure of the Learned fientleman, I can not help it ; as a matter of course I must expect it, but I do appeal to your Lordships' autho- rity to put an end to such irrelevant interrogatories, which have already extended themselves to a very unjustifiable length. Mr. Sherwood. — I have no particular wisli to press the question ; I have done with Mr. Bourke. Re- E xamination bj/ the ArroRnnY-GEUEKAL. Attornry-General. — You have been questioned. Sir, in rather a singular manner, as to whether this was in fact a dwelling-house, and the property of the Earl of Selkirk. Will you, Sir, again inform us what it was ? Mr. Bourke. — It was an actual dwelling-house, and be- longing to the Earl of Selkirk, but inhabited by his people, who ate, drank, and slept there. Pigs might be kept there for any thing I know ; but there were places partitioned ofF for stores and other purposesj but they were all under one roof. MILES M'DONELLf Esquire, sworn. Examined hy the Attorney-General. * Mr. M*Donell. — I was there at the Red River Settlement in 1815, and for some time before. I know of some cannon being there, the property of the Earl of Selkirk. These cannon were sent out by his Lordship in his own hired ship, and arrived at the Settlement in 1812. I know they were his own property, as I saw the account of them, that is, the bill and receipt ; the cost of them was specified, but I do not exactly recollect how much it was, and they were kept at the Red River Settlement from 1812 to 1815. In the fall of 1814 they had been put up into a store-house, one end of which served as r dwelling for some of our people. 175 f.f Mr. Shcrwood.-^X hope your Lordships have taken down these answers of Mr. M'DoncU, as we consider them very important', perhaps Mr. M'Donell will repeat them. (Mr, M*DoHeU accordinglj/ did repeat his answers in sub' stance.) Afr. M* Donel/. — ^There were nine pieces taken away. When I came to the Settlement there were two brass three- pounders, two brass swivels, one pounders, four iron swiveb of from one to two pounds, and a small howitzer, of which I do not know the calibre, but it was a small one. Two of them were field>pieces, viz. the three-pounders } the smaller pieces are generally called swivels. Attorney'General. — Can you give us the value of themf Sir, either from your own judgment and knowledge of such articles, or from recollection of what they were charged in the account ^ Mr. M*Dontll. — I do not recollect what the field-pieces were charged. I should suppose they might be worth thirty pounds each ; they would be worth more in the Hudson's I5ay Territory. The swivels I do not recollect the cost of, nor can I form so good an idea of their value. Attorney-General. — It is not at all necessary. Sir, that you should value them very accurately. Say any sum that is not over-valuing them. Were the two worth twenty pounds ? Mr. M*Donell. — Certainly they were worth that. Attorney-General. — Now, Sir, the iron pieces, if you please give us their value, either from your recollection of the account, or your own knowledge, observing the same rule, not to over-rate them. Mr. M* Donell. — I can not say as to them cither, though I recollect that I saw the account ', but I should suppose they might be worth from three to five pounds each, hardly so much as five pounds, but certainly they were worth three pounds each. The howitzer was worth ten or twelve dol- lars. The howitzer and one or two of the iron pieces were given to my charge in Hudson's Bay for the protection of the Settlement. Attornie J/- General. — Were they, Sir, in the store in the beginning of April in the year 1815.? Mr. M* Donell. — I should think that they must have been, though, as I was not there, I can not say positively. I left them in the store in January, dismounted, and I found, when I returned to the fort from my journey, that they were gone. Upon my return the circumstances were communi- \ i , i 1 i '^ ^^^...,gcr„ I' 176 cated to me under which they had been taken, as well as the place where they had been taken to. A deposition was af- terwards made before me to the same efFectj and in conse- quence, I issued a search-warrant to search the North- W«st fort near the Forks of the Red River, and sent Mr. Bourke and some others to execute it, and bring them back if they found them. They returned without them, but told me it was admitted by the Partner of the Company in charge at the North- West fort, that they were there, but said he should take care of them, and would not allow the warrant to be executed } indeed he would only permit three or four of our people to enter the fort. I saw two of them afterwards, when the attack was made upon us in that year. A battery had been thrown up at night near the Settlement, and I saw them there in possession of the North- West Company, who had thrown up the battery. I afterwards saw them, one on each side of the door of the house where I was detained as a prisoner. Attorney 'General. — Did these persons know that they were the property of the Earl of Selkirk, and that they had been stolen ? Mr. M*Donell. — Yes, they must have known it, as they received them immediately they were stolen from the store, and also from my warrant for their recovery. Attorney-General. — How long did you live in the Red River country ? Was it long enough to make you ac- quainted with its geographical situation ? Is it, Sir, without the Provinces of either Upper or Lower Canada, and of the United States of America i Mr, M*Donell. — It is certainly not in either Province, nor in the United States. The whole of the Red River country is beyond the height of land which separates the waters running into Hudson's Bay from those of the Rivers Missouri and Mississippi. From maps I have seen, I should think it to be in between 96 and 97 degrees west longitude, or about 97, and in perhaps 4>9| degrees north latitude. Cross-Examination^ conducted by Mr. Sherwood. Mr. Sherwood. — ^The people employed about the fort sometimes lived in this house from which the cannon were taken, did they ? Mr. M* Dowe//.— Not sometimes, but always ; it was our permanent quarters. Mr. Sherwood. ^You, I think, said that you were not at 177 the fort when the cannon were taken awayj so that perhaps you can not say whether any body was actually living there or not at the time, or whether it was not used as a hog-stye ? I * Mr. M* Donell. — All I can say to it is, that when I went away it was, and had for a long time before been, used as a dwelling-house for the people, and there were no hogs in it, as I believe. Mr. Shf-rwood. — In what capacity. Sir, was you at Red River country ? Mr. M* Donell. — I was there as Governor of the District of Ossiniboia, in the Hudson's Bay Territory. Mr. ShciwHtil. — Did you issue your warrant to recover these cannon in your capacity of CJovernor ? Mr. M* Dotiell. — I was also a^Justice of Peace. Mr. Slurwood. — Who appointed you Governor? Air. M^ Donell. — I was appointed by a Commission from the Honourable Hudson's liay Company. Mr. S/ier:coo(f. — And a Justice of Peace by the same authority, I suppose, which we consider no authority at all. Mr. AI* Donell. — I was appointed a Justice of Peace by His Excellency Sir James Craig. Mr. Sh(rrcood. — When, Sir, did you take the oath to act as a Magistrate under the commission you speak of ? Mr. M- Donell, ~~\ took the oath in the year 181G. Mr. Si'iertcood. — That was after the period of issuing your warrant ; it could not therefore be by virtue of the commis- sion of Sir James Craig, that you acted in 1815, but under the assumed powers of your commission as Governor, which the North-West Company did not choose to acknowledge, and th.trefove would not allow the warrant to be served. Was you, ^^ir, ever made a prisoner yourself ? Mr. M^ Donell. — Yes, I was made a prisoner by a war* rant for a breach of the peace, issued by some of the Gentle- men of the North-West Company. Mr, Slieru'ood. — Were the persons who were generally denominated settlers at the colony, satisfied with their treat- ment ? Mr. M^ Donell. — They had, pretty generally speaking, been satisfied up to 1815. I understand that while I was away they became otherwise. I know that great exertions were used, and had been for some time before, to excite discontent among them ; and whilst I was away, I was given to understand that these endeavours succeeded, vmd that the colonists did become discontented. Mr. Sliencovd'-~^You have said. Sir, that the Red River M i /I I :i . { 178 Settlement is not within either Province of Canada. Upon tvhat do you found that opinion ? Mr. !VI*J)orte.ll. — Upon the circumstance, that it is be- yond the he ght of land which divides the waters which discharge themselves into \ ake Erie and the St. Lawrence, from those which empty themselves into the sea, which I believe to be the boundary of the provinces. J\1r Sherzcood. — Did you ever hear of any Proclamation, making it different to that issued in 1763 ? Mr. M^Dontll. — No, I never did \ I have seen the con- stitution of 1791, and in describing the boundary, it says the same thing in relation to this country, that it is to extend to the Hudson's Bay Territories. Mr. Sherwood. — The Proclamation of 1791 does not say to the Hudson's Bay Territory, but to the boundary line of Hudson's Bay, which is a very material difference ; and so you consider the house to be the dwelling-house of the Right Honourable Thomas Earl of Selkirk ; did you ever know him to put his foot into it ^ Mr. 1/' l)oiiell.-l never knew Lord Selkirk to live in. the house. I never intimated such a thing; but I considered it to be his property, and his servants lived in it, and I therefore consider it to be a dwelling-house belonging to the Earl of Selkirk. ROBERT GUNNy sivorn, ' Examined hi/ the SoLicnOK-GEfiB.-RAL. ' Solieitor-GenernL — I wish to tell you, before I examine you, that if I ask you any question that, by answering, may get you into difHculty for any thing you have done relative to taking xw.se cannon, you need not answer. Mr. Shertuood. — I only wish him to know, that he may answer every question that is put to him ; he was one of those poor deluded ^*ettle^s, and can not criminate himself if he admits that he took away, or helped to take away, these cannon, so as to prevent them from being used against such as wished to leave this land of milk and honey. Gimn. — I was at the Red River Settlement in 1815, and at the early part of the spring, whilst the snow was on the ground. I know the prisoners at the bar, they were Settlers at Red River. There were some cannon, but I can not say how many, and I know they were taken away by a party of Settlers. The prisoners were with that party, botii of 179 So/iciVor-G^cwcrfl/.— Whereabouts were they, close to the sleighs ? Gunn. — I can not say exactly where they were, but I do know that they were there with the party who put the guns on the sleigh, but I can not say that they did any thing more than that they were there. I saw them come with the party, but I did not see them afterwards. I saw the two men at the bar along with the party who took away the cannon, but so many came, that I can not say that I saw these two go away. I saw them come, and I saw the can- non go .pA'ay, but I did not see either of them about the house afterwards. Solinioi-Gcuernl. — Did you sec one George Campbell among the party .'' Gut!)!. Yes, I did, he was one that came. I do not know if there were any armed or not, they had sticks gene- rally, but not clubs. Solicit or-General. — Was there any body in the house at the time the cannon were taken out of it ? Gunn. — There was one Michael Kilbride, and a man who was sick, as I believe, but I could not be sure. Question hi/ a ./wror— Had they all sticks or clubs ? Gunn. — Yes, they had. Every man had a stick of some kind. I saw the party take out the guns, but there were so many, that I can not say who in particular did it ; the pri- soners were, as I said before, with the party who took them away, but I can not say what particular person did. I saw Mr. Jiourke, he was in the store, serving out provisions, when they began to take them out, and he came and tried to pre- vent them, but they overpowered him, and took them away. Qutslion />!/ a Juror. — J^id you draw provisions then ? Gutnu — Yes, I did. Juror.— Is it usual in that country for a man to carry a cane or walking stick ? (iioiti. — vSome carry them, but not generally. Silirilor-Gcneral. — Do you know what became of these rjtms afterwards ? Cr ////;;.— No, I do not, I can not say that I do. I did not follow them. Siificifni-Genernf. — Did you never see them afterwards, or some that you supposed to be them, at Fort Gibraltar ? Gunn — 1 did see guns like them at Fort Gibraltar, but I can not say they are the same, because I did not follow the party who took them away. When they were taken, they were lying on the ground, without carriages. h sf w ly i 180 C foss- Examination, conducted hy Mr. Sherwood.' Mr. Sherzeood. — You, I believe, was one of those unfor- tunate people who came out to be a Settler at this Colony ? (j'unrf. — Yes, I was. Mr. Sherv^ood. — And you was a good deal disappointed at your situation, was not you, and wished to get away ? Gunn. — Yes, I certainly was, and did want very n;uch to get away if possible. Mr Shfrwood. — Did you hear any thing said about what was to be done with these cannon if you attempted to better your condition by coming away ? Guan. — The Hudson's Bay people said, that if the Set- tlers attempted to go away they would be used to prevent them. Mr. Sherwood. — What did the Settlers say to that ? Gunn. — They said, to prevent their being used against themselves, they would remove them, and put them out of the way. Mr. Sherwood. — Where were the Settlers going to ? Gunn. — To this town of Yorki they had been promised a passage to this place. Mr. Sherwood. — Then they could, I suppose, have no intent to bring the cannon away to York ? Gunn. — No, they could not, for it was more than a thou- sand miles to York, and they could not bring them, as they came in bark canoes ; besides, the portages would have hin- dered them, if nothing else. Mr. Sherwood — Had they any intention to sell them? Gunn. — No, for there was no body to buy. Mr. Sherwood. — Then in fact, as they were desirous to escape from his Lordship's bondage, they thought it best to put these cannon out of the way, for fear they should be prevented, by their being used agreeably to what they had been told. Gunn.—YeSf that was all. Mr. Sherwood. — Have you left the Settlement ? How came you to come away from such a land of promise ? Gunn. — I came to York myself, and I was very glad to kavc that place certainly. MICHAEL KILBRIDE, sworn. E-tamined hy the Attorney-General. Allorney-^General. — Was you for some time in the Red River country, as it is called ? P 181 Kilbride. — Sure and I was, Sir, for some years. I was there in 1815 sure, and as good as I remember, there were nine pieces of cannon. Some were brass, four I believe, and four others were iron, and there was another one difft-rcnt to all. I don't know what sorts they might be, but there were nine altogether, I am sure. They were stored in one of Lord Selkirk's buildings belonging to the Settlement. Allorney-GentruL — Did any body live in the house, and who ? Kilbride, — Sure, and there were, the servants lived there* I lived there myself. Attouiey-Gftiera!. — Did any of your wives live there ? Kilbride. — There were no women lived there during the time I was there. There was one Kerrigan and myself who lived there. Attorney-General. — Was there any intention of re- moving these cannon from the store, that you know of? Kilbride.— 1^0 ; if they had been let alone, they would have stopped there, but they were taken away by a large party of people belonging to the Settlement. AttorneymGeneral.. — Do you know the two prisoners ? were they among the party of which you are speaking ? Kilbride. — Yes, these two fellows were there. Attorney-General. — Now relate to us slowly, all that passed at the time they were taken away. Kilbride. — It was about the Sd April, 1815, at about one o^clock in the day, that George Campbell came first, then Hugh Bennerman and John Cooper came into the room where the guns were, and with a number of other persons took away the whole of them. Sure they were all alike, for they all helped to put them on the sleigh, and get them away, which they did, and took them to Cameron's fort. Attorney-G eneral. — Then you saw no particular dif- ference, but they all helped, the prisoners amongst the rest, and took away the cannon to Cameron's fort ? Kilbride. — That's what they did indeed. Sir. We could not have hindered them from taking them, they were so many, and they guarded the doors of the buildings whilst they were taking them away, Some of them had fire-arms, George Campbell had some pocket pistols ; he was at the head, and commanded the party. Campbell told me that they were come to take the field-pieces away, and I told hiin that he must not take them away. I was then told not to Stir, and be shewed me a pair of pocket pistols, , . 182 Atlorney'Genetal — Were the two prisoners present at th; time you are speaking of? ....... Kilbride. — Yes, they were both there. Attorney-General. — Did your Gentlemen not try to hinder them from being taken away ? Kilbride.— T\\&rtyftTQ only Mr. Archibald M'Donald, a clerk, and a Mr. White, and Mr. Bourke, there, and Mr. Bourke was not let go to tell Mr. M 'Donald, who had charge of the place, and there were not more than thirty men there altogether on our side. Attorney-General. — Why could not Mr. Bourke let Mr. M*Donald know about it ? how was he hindered ? Kilhride. — There were sentries placed at the door of the Government-house, till the guns were got away with safety. They were taken to Cameron's fort, and both the prisoners went with them. Attornei/mGeneral.— Do you knew if any use was made of them by the party who took them away, or did they give them away, or sell them ? Kilhndt . — Not tomy knowledge, T donot believe theydid; they took them to Mr. Cameron's fort, and there left them. Alton ey ( ' < ntral. Did you see them there afterwards ? Kilhr>d< . — Yes, I did, but they were mounted then. Attorticii-GeneraL — Then it appears they might be of use, though they were not brougFi to York. Did you see the party after they got off with the cannon, and did you observe whether or not they were joined by another party ? Kilhr'di . - Yes, I saw them when near the fort, and they were joined by another party. There was Mr. Cameron there, and about fifteen armed persons, who all came out, upon a signal being given that they were safe out with the cannon ; the signal was firing a small arms, and then Cameron s party came out from just by, and joined the people with the cannon •, when they got out they set off at a very smart rate. I was by, and I heard Mr. Cameron say, " Well done, my hearty fellows: well done, my ** hearty fellows." Attornetj' General, — Were the whole nine cannon taken cut of the house, or was any part, and what, outside.' Kilbridf. — There were eight pieces of cannon in the house, and one outside. They were afterwards brought to within a quarter of a mile of our fort, for the purpose of making war upon us by the North- West people from Fort Gibraltar. ,L 183 Attorney^General. — Was you threatened by an/ of the party who came and took away the cannon, and were the prisoners by ? Kilhn '• . — I was. I wanted to find Mr. Bourke, and I was threatened not to stir ; the prisoners and Campbell were all there at the time, and they went away with their friends with the cannon, and then I was let go. Atlornn/~'itin ml. — Who lived in the house at the time the cannon were taken out of it, or who were in it i Kilhnde. — There was Kerrigan, who was lying sick, and one Mary M'Lean 1 saw two of the brass-pieces after- wards mounted at the North- West Company's fort. Allot tiy-Gtnerdl. — Are you confident that you saw the prisoners with the party, and that they went into the housf, and helped to take them out, and take them away ? Kilbride. — I am sure I saw them do all that, Sir. CrosS'Examinalion, conducted by Mr. Sherwooo. Mr. Sherwood. — Did you come out as a settler to this Colony ? Kilbride. — I came out as a servant to the Hudson's Bay Company, and not as a settler. Mr. Sherwood. — Was it out of the dwelling-house that these cannon were taken, or were they taken from the pig- stye, or from the store ? Kilbride — It was all the same, they were all one house, only in different parts. Mr. Sherwood. — You have spoken of pistols ; pray where did you see any pistols .? who had them .? Kilbride. — It was Campbell that had pistols. I saw them, ihey were pocket-pistols, he had them in his two fists. Mr. Sherwood. — You have spoken of a partner of the North- West Company; do you know that Mr Duncan Cameron is a partner ? and how do you know it ? Killnide. — I do not know that he was, he appeared like a gentleman, and seemed to have command as a partner. Mr. Shrrwood. — Pray, were there any woods there- abouts ? Kilbride, — No, there were not. Mr. Sherwood. — Whereabouts did Mr. Duncan Ca- meron's party meet them with his party ? Kilbride. — He met them about twenty yards from the Governor's house, and cried, " Well done, my hearty fol- " lows, well done." 184 i Mr. Sherwood.-^He said, well done, my brave fellows, did he ? Kilbride, — Sure and he did, Sir, I heard him, and then he went along with them to the North-West fort. Mr. Sherzcood. — There were some of your own country- men with them, I suppose, who I believe frequently carry sticks, don't they ? Kilbride. — There was not an Irishman among them, as I believe; some Irishmen walk with sticks, and some do not. ' JOHN SMITHy sworn in Gaelic, J^xamined \Jbjif the Solicitor-General, through Mr. M'DoNELL, as Interpreter. Smith. — I was in the Red River country in April, 1815. I know that in a house belonging to Lord Selkirk, there were a number of pieces of cannon } but as I did not count them, I can not say how many. Solicitor-General, — Did you ever see any of them after- wards ? Smith.— YeSi I did. I saw one or two afterwards in pos- session of the North-West Company, at a battery which they had put up on the Frog Plains. 1 do not know when exactly, but it was after they had been taken away from the Settlement. I believe they were brought there against the Ijjidson's Bay people ; that was what I understood. Solicitor-General.— How came you to understand that ? Smith. — I was brought there as a prisoner, and then I heard so. I was kept in a room, with a musket on each side of my door. Solicitor-General. — Do you know Hugh Bcnuermau, and the other prisoner, John Cooper ? Smith. — Yes, I know them both very well. Solicitor-General, — Was you one of the settlers of the Colony ? Smith. — Yes, I was. Mr. Sherwood «aid he had no questions to, put to Smith. HECTOR M*LEOD, was put in the box. (Upon the book being offered him, he refused to be sworn until 'a was paid for his attendance, alleging tJtat he had been once to Mon- treal upon this business, and had never received any thing. The Attorxiey-General qnd Coiirt explained to him, that ii loas his duty to give his evidence, and he loas sworn). 185 E^vainhud b}) tlic XnoRShv-LiiiSKiiM. • ' . JlPLeod. — I was at the Settlement in the spring of the year 1815. I came out as a settler. I know there were some cannon in a store, and some out of doors. I know that they were taken away, but I can not say the day. There were eight, or seven or eight, in the house, and one outside, but I can not say to whom they belonged. They were taken by a party of settlers. I know both of the prison- ers very well, they were with the party who came ; but I did not sec them assist. I only know that they came with the party who took them. They were carried to one of the North- West forts. Atlorney-Genernl. — To which of them ? Fort Gibraltar ? M^Leotl. — I can not say, there are so many forts, but it was a fort at a short distance from, and a little way above ours. They were left there, but I cannot say they were left there by the prisoners, nor can I say that I saw them take the cannon away. I saw them with the party who came and carried them away, but they were so many I can not say who were there. ■ > Cross- Examinatio}jf conducted hy Mr. Sherwood. Mr, Siierivood. — Was you one of the unfortunate people called settlers, upon the Earl of Selkirk's Colony ? M'Leod. — I was one of the persons who came out to settle at tlie Red River, having engaged with his Lordship's jg.ent. Mr. Sherwood. — Were you all very well pleased with your situation upon your arrival ? AT*Leod. — No, we were all very much dissatisfied, find- ing that nothing was as had been promised to us. Mr. Sherwood. — Where did you pass the first winter, after your landing from the vessel in which you sailed for this land of milk and honey ? M*f^eod.—'V)fe were obliged to remain at Hudson's Bay at one of the forts there for a long time. Mr. Sherwood. — Had you then to march a long way be- fore you reached the land of promise through a wilderness ? M^Leod. — We had to go above eight hundred miles through woods and a wilderness. Mr. Sherwood. — When you did arrive, did you find it what you expected> so that you wished to ren^ain ? ■ y 18G APLeod. — No, by no means, notiiing like what wcwcre told it would bc} not at all what \vc \«ere led to expect. Mr. SlitrK'ood. — Did you wisli to ^o away ? j\J* f.rn(t.— \cs. I should have been glitl to have come away if I could I cjuld not come away, for I was detained. Mr. S/nr co'd. — Were there many of your way of think« ing, that it would be better to get away if you could ? AJ* f.tiid. — Y es, we were all, or very nearly so, wishing to get away, for we were not well used. Mr. >fi' rwood. — Do you know why the number of can- non of which you have spoken were taken awayj whether it vas merely to prevent their hindering you from leaving your bondage or not ? M* f'fod. — The cannon were taken away to prevent their being used so as to hurt the settlers who were about leaving. It was, that they might not be used to prevent tliem leaving. Mr. Sherwood. — V/as there any reason to apprehend ihat they were intended to be used in that manner ? M^Leod. — The general report was, that if the settlers attempted to go away, they would be fired upon with these cannon. AJr. Sherwood. — Could the settlers have brought them away to this province if they had wished to do so ? M^Ltod. — No, they could not, for they had only canoes to go away in. AJr. bherwood.—How did they pass Fort Douglas at the time they went away ? M^Leod — They went away in bark canoes. Mr. Sherwood. — Do you know if they came to this town, to the town of York .•' AI*Lt^od. — I always understood they did. Mr. SfierwDod. — Y^ou have said they had no intention to steal these cannon. I will ask you, could they have made any use of them ? were they of any value to them ? M*Lt<'('. — They could rot be of any use to them, for it was not possible for them to take them away. Mr. S/it-ncood. — Could they have gone away without passing within the range of these cannon, had they remained at the Settlement, and they had been disposed to carry into tffect the threat which was made? M*/.eod.~ They < ould not leave that country without passing the fort belonging to the Settlement. Mr. Shcrisood, — I have done with M'Lcod, L 1»7 Itc-Examiitallovt conduclvd hy the Attornet-Guneral. AUornrt/-Gt:vrrnl. — Altlioiigh these cannon might be of no use to the pcrbons who took thcni away from the Settle- ment, yet they might be an object to other people, and they ippcar to have been considered so, and to have been used for purposes that cannot be mistaken. Do you, M'Lcod, know of any of these cannon being made any use oi after they were left, as yon term it, at the North West fort ? M^ l,t(td. — No, I can not say that I do. ' Attornciz-Grtitrnl. — iJo you know that the Settlement was destroyed some time after these cannon were taken away, and the people compelled to abandon it ? M*JjCo(L — I know that the houses were burnt down be- fore I came away. Mr. Shrrtcood. — I had hoped that upon this trial the dif- ferences between the two Companies, or the North West Company and the Earl of Selkirk, would have been passed by. We, my Lords, have abstained from any thing calcu- lated in the slightest degree to introduce them to notice. If the Learned Attorney-General proposes to defend Mie con- duct of thcEarl of Selkirk, or his treatmentoftheseunfortunatc settlers, we should be glad to know how it is to alter the pro- sent case ; how it is to assist in sustaining the singular charge against these men, of stealing nine pieces of ordnance ? AHoine?/-(jeneraL — I do not stand here, either to defend liOrd Selkirk, or his conduct to the persons who were by his authority engaged as settlers. My object is merely to shew that the Colonists were forced to go away, and that these very cannon, which it is attempted to be shewn, were taken away to prevent their being used to hinder those settlers from going away who wished to depart, were afterwards used to compel those to depart who wished to remain. Chief Jnslire. — The fact of taking is evident; you have only to establish the (inimusfurnndi. Can this do it ^ Mr. Sherwood. — That is the single point, my Lord j was It a felonious taking, a robbery, or was it a trespass? Attorn ejj-G cncr al. — I shall put in the Great beal Instru. ftient, and on the part of the Prosecutor the case will be closed. The Great Seal Instrument [Appendix ^ O.) was put in and rend. ,1 188 1 ^ DEFENCE. Mr. Sfiettcood. — I wish, my Lord, before I trouble the Court with any witnesses upon the part of the prisoners, to state to the Court, that they have a clear defence on this abstract point of law } that at the utmost, it is a mere trespass which the Crown has made out, and not a larceny, much less a robbery. If, my Lords, there is no felonious intention in carrying away property, if there is no aniinw^ J'urnndi, then there is no robbery, but only a trespass } and such, I submit to your Lordships, is the utmost length that the Crown have attempted to carry, or succeeded in making out, their case, supposing we bring forward no opposing or justifying evidence. So far from any thing like robbery having, upon the Crown's own shewing, been committed by these persons, it is manifest they merely helped (and the proof even of that is very vague inde d) to remove these cannon } so that a threat which had been made, very much in the spirit which governed the Settlement, that they would be used to prevent their leaving this flourishing Colony, or, in other words, if they attempted to avail themselves of the humanity that would assist them in escaping from the bon- dage into which they had been seduced by artful misrepre- sentation. I say that Mr. Attorney-General has shewn no felonious intention, and that in the absence of that, I con- tend the Crown has not supported its charge of robbery j for if they supposed they were to be used upon them, and under that impression, though wrong Altorney-Geveral. — I apprehend, my Lords, that whe- ther we have proved our case or not, is a question for your liordships and the Jury, and not for the Learned Gentle- man, any more than for us to say. If the Learned Gentle- man considers that we have not, in a legal point of view, established it, he will leave the case in your Lordships* hands, and you will direct the Jury tp acquit the prisoners, if you coincide with him in opinion ; but he surely will not be allowed to argue upon a question of fact, which, under your Lordships* direction, it is for the Jury to decide. MILES M' DO NELL, Esquire, sworn. Examined by Mr. Sherwood. Mr, Sherxcood. — Is it within your knowledge, that the Earl of Sclliirk got back the greater part of the cajinoa 189 ngaih, or those who acted for him; perhaps he got the whole? Mr. M' Donell. — I do know that he got the greater parti but I believe not the whole. AttorneyGenernl. — There can be no occasion to take that answer down, for it is of no consequence. Mr. Sherwood.— \ differ with Mr. Attorney-General ; and as it is the answer of the witness to a legal question, I beg that it may be taken down. Attornv i/-Gvnernl. — I beg, my Lords, to submit, that the cannon coming again into the possession of the owner, does not at all vary the case. Chief J iisiirr. — There is no knowing what use they In- tend to make of it, but I cannot see its bearing myself*, the taking it down can do n(> harn*.. Mr. Sherwood. — The use, my Lord, that I propose to make of it is this, that I think it p 'etty evident that it is rather a late thought, that the taking iway of these c;>nnon should be worked up into a robbery. If niy LoiJ Selkirk or his agents had thought that it was a r'-hbery, then he ought not to have taken them again into his pcsession, till they had been in due process of law proved tu be his I will not however detain your Lordships, but immH'vx.y call my next witness. JAMES M'CO y, on the hook being offer d L him, ob- jected to take the oatht unless he was paid for his at- tendance. One or two observations were made, when the Court directed the witness to be sworn, informing: him that he was bound, under the circumstances, to give his testimontj ; he was then sworn. Examined by Mr. Sherwood. Mr. Sherwood. — "Was you one of those unfortunate peo- ple who were induced to become settlers at the Red River Colony by the Earl of Selkirk or ! gents in 1813 ? M*Coy. — I was one of Lord 1*5^ .irk's settlers, and came out in the year 1813 to Hudson's Bay. Mr. Sliencood.— Did you reach the Colony that year ? M^Cot/. — No, we winterr i in Hudson's Bay. Mr. Sherwood. — Ar I n spring you journeyed hundreds of miles through the wilderness to reach it, did not you ? iV/'Coy.— Yr:,, wc did, we come up a long way. i 190 Mr. Shrrwood.'—Yow had some dlfHculties in going along, no doubt } but when you got to the Settlement in the land of promise, you, I suppose, were so pleased you forgot it all j were you well satisfied with your situation ? M^Coy, — We were better pleased at first than we were afterwards, for we got dissatisfied, and wished to go away. Mr. Sherzcood. — What made you dissatisfied in such a fine country, such an excellent climate ? M'Coi/. — We could not live on the living we were al- lowed, and we found every thing very different to what we had been told should be our condition. Afr. S/ierwood. — Did you wish to go away, or were you forced away by the North-West Company ? Jll'Cot/. — We were not forced away, we went away of ourselves, and were very glad to be able to get away. Mr. Sfierwood.'-Were you present at the taking zvrzy of any cannon from the store at the Settlement ? iM'Cot/. — No, I was not, but I heard of it, and knovr they were taken, for it was before I came down. 31 r. SlieTwood. — Do you know where these cannonwers when you came down from that country ? APCoj/. — They were at Fort Douglas at that tiL^e. Mr. Sfierionod. — Though not at the taking of them, ycu may perhaps know why they were taken away ? APCoi/. — They were taken away because ArchibaLi M'DonalJ, who was in command in the absence of Mr. jMiles M'Donell, said that if the settlers attempted to go away, they should be used to prevent their passing do»yn the river. Mr. Sheriuood. — Did any of you expect any benefit frori taking away these cannon, beyond that of being able to make your escape to a country where you could get a decent live- lihood ? Did you expect any reward for taking them away ? M^Cot/. — I do not believe that any hndy expected a six- pence of benefit from it. I am sure, for my part, that I never did. Crosi-Exaniifjatiort, roudurtcd b)/ the Attorn^et- Genlral. At{nrnc7/-('cnrraJ. — How can yon f;peak of what ihey did, or what v^^re their expectations, if you were not there ? M*Coy.~h\\ I can say is, I never heard of any thing being received by any body, or of any thing being ex- pected, and that I never had, nor ever expected, any tiling. I- 191 WILLIAM B ENNERMAN, sworn. Examined hy Mr. Sherwood. Mr. Sherwood. — Was you one of Lord Selkirk's settlerj who came out by way of Hudson Bay ? Bennermnn. — Yes, I was. I came to Red River country by Hudson's Bay. Mr. Sherxeood. — Do you know of any cannon being taken away from the Settlement, and for what reason they were taken ? Bennermnn. — I know that there were some, and the reason they were taken was, because Archibald M'Donald had said, that if the settlers attempted to go away, they should be used against us. Mr. Sherwood. — Who was in command at that time at the Settlement, at the time Mr. Archibald M'Donald said that ? Bennerman. — He was himself, in the absence of Mr. Aliles M'Donell, who had gone to some other part. Mr. Sherwood. — Was there any way for you to get away if you left the cannon there ? Bennerman. — I'iot there was not, if they chose to hinder us. Mr. Sherwood. — Is the river narrow or wide? Bennerman. — Very narrow, completely within reach of cannon. Mr. Sherwood. — Do you know of their being sold ? Bennerman. — No; to my knowledge they never were. I never had any thing on account of them, nor do I think thc others had. Mr. Sherwood. — Could they have been brought to Ca- nada with you in your canoes ? Bennirwan. — No, we could not bring them to Canada ; It is more than a thousand miles, and portages and rapids in the way, and we had only bark canoes to come away in. Cross-Examination, conducted hy the Attorney- Genkral. Attorney-General. — Are you a brother of Hugh Ben- nerman ? Bennerman. — No, I am not, nor any relative to the pri- soner Bennerman, I have known him. 'lAf 192 .% Attornet/'General. — Were there any cannon mounted at the time they were taken away ? Btnnerman. — There were not any mounted In the house ; there was one on a block outside, and there were some car- riages. Attornej/'General. — Were the prisoners in company with thy party who took the cannon away, both of them ? Hennerman. — The prisoners were both in the company at the time of taking the cannon. Attorneij-General. — Where were they taken to ? Bennerman.— They were taken to Fort Gibraltar. I was not there at the time they were taken there, but I heard so, and I saw them afterwards in that fort* ' 1 1. &■ JJYMEN SUTHERLAND, sxorn. Examined by Mr, Sherwood. Mr. Sherwood. — Was you one of Lord Selkirk's settler;; at the Red R iver .? Sutherland. — Yes, I was. I got there, I think, in 1814-. Mr. Shenvood. — Was it before, or after, the taking of the pemican by your people from the North- West Com- pany ? Sutherland. — It was two or three days after, as I u-s told. Mr. Shenvood. — Was you satisfied with your condition ? Sutherland. — No, I was very dissatisfied, for I found no- thing like what 1 was told it was to be. Mr. Sheriuoiid. — Were you permitted to tell your dissa- tisfaction to your comrades ? Sutherland. — No, I was dissatisfied, but they would not allow me to say that I was. Mr. Shencond. — Who would not allow you ? Sutherland — The Officers of the Settlement would not allow it. Mr. Sherwool. — Did you express a wish to come away, to the Ofllccrs of the Sttrloment ? Sutherland. — Yes, wc did, but they would not allow us to go away. Mr. Sherword. — Were persons put under arms to pre- vent ou going ? At tornnj-(i cnc.rnl . — Tlie Learned Gentleman is, I think, my Lord, a little irregular in his questions } he might ask tlu' gciiciMl tpic'.tion, were they dissatisfied, and did they 193 wish to get away j but not questions of the kind he is put- ting just now. Mr, Sherwood. — I will just ask him, did they wish to come to York, and were they permitted ? Sutherland. — We did wish to get to Canada ; I do not know ior York in particular j but they would not let us conic. Mr. Sherwood. — How did you get away at last ? Sutherland. — We asked Mr. Cameron for a passage in the North- West Company's canoes, and he gave it to us. Mr. Sherwood. — Could you go any way but by water ? Sutherland. — ^There was no other way that we could go. Mr. Sherwood. — Had you, or any of you, any idea of taking these cannon to Canada, or of selling them, or for what were they taken ? Sutherland. — Certainly not. They were taken away be- cause the report was, that they were to be used against us, if we attempted to leave the Settlement, and we were afraid they would be. Cross- Examination J conducted by the Attorney- General. Attornet/'General. — Do you know Mr. Duncan Came- ron, «nd did you never hear him tell these people, or any body, to take these cannon ? Sutherland. — I never did hear him tell any body to do so. Attorney-General. — Do you know, Sir, where they were taken from, or whether the place was a dwelling-house, or a place to keep pigs ? Sutherland. — I do not know where they were taken from, whether it was from a hog-stye or not. I saw them on the sleigh, but did not go with the guns. I saw them after- wards at Fort Gibraltar ; that is all I know about the taking of them. Attorney-General. — Were the two prisoners in the com- pany that took them, to your knowledge ? Sutherland. — They were in the company. Attorney-General. — Are you acquainted with the pri- soners, and how long have you known them, and particularly Bennerman ? Sutherland. — Yes, I know them both, but not much of Cooper j the other I have known from infancy. Attorney-General.— 'Do you consider him a good honest man .' *() 1 '. W4 Sutherland. — Yes, I do. I know nothing against him. Mr. Sherwood. — My Lords, we have a great number of other witnesses, but we think we may venture, without danger, to stop here, and let the case go to the Jury j this therefore is the prisoners' Defence. CHARGE, By Mr. Justice 1?oulton. Gentlemen of the Jury, You have been during a few hours employed in trying the two prisoners at the bar upon the charge of stealing a number of field-pieces, or cannon, the property of the Rt. Hon. the Earl of Selkirk, from out of his dwelling-house, fn considering the case, there are only two points which require your attention : first, whether these two men, John Cooper and Hugh Bennerman, are guilty of stealing or taking away the property of the Earl of Selkirk ? and, secondly, and a very nice point it is, whether they were taken with a felonious intention ? for, according to the most learned men in our profession, it must be proved satisfactorily, that at the time of taking, there existed what is called a felonious intent in English, and in Latin the animus furandi, because, although property may be taken away, unless the animus furandi is clearly established, it is not a felony, but a trespass, that is committed. The Learned Judge who was referred to in the course of the trial, exemplifies this position in a variety of instances. I will state one that is familiar to you. If a man goes to a field, and takes out of it a horse as his own, though his right to it may be questioned, yet it is not a felonious taking, because he considered he had a title to it; and if he has committed an offence, it is a trespass only, although it should actually be proved that the '***», ,^- 195 liorse in reality belonged to his neighbour, or to some oilier person. The reason it would not be a felony, is, because there was no felonious intention. Apply this principle, which is law, to the case before you. These cannon were taken in broad and open day, by a large party of persons, and not by these two people alone. This is perfectly evi- dent from the whole of the testimony, and I think it as clear that there was not, from the beginning, any intention on the part of any body to steal these cannon, and appropriate them to their own use. It is evident a large body of persons at the Red River country had been agreeing to run away to Canada; that they wanted to get rid of the Settlement, but were apprehensive they would be fired upon from these cannon, and therefore took them away, so that they might not be hindered in going down the river. If you believe the last six men who have been examined, there never was the least intention to steal, but only to prevent the cannon from being used to prevent them going away, or making their escape to the Provinces of Canada. It is, Gentlemen, another of the trials resulting from the misunderstanding, and a very unhappy misunderstanding it is, of these two rival Companies. These people wanted to get away from that country, according to the evidence, because they were unhappy and miserable, and exposed to danger from the quarrel in which the Hudson's Bay and North-West Com- panies were engaged. They were exposed to danger from the Indians and Half-breeds, as it appears there had foj some time been reason to apprehend they might come and destroy them. From whatever cause it might be, is no matter ; whether it arose from the quarrel between the two great Companies, or from other causes, is of no consequence; these men, it appears, were unhappy and miserable, and were desirous to escape from their unhappy situation. They had been led to believe, how they came to believe so, is of no consequence, that these cannon might *0 2 I > il I ''\ \ 1) rl. , ( ttcr 196 11 be used to prevent their getting away, and they determined to remove them out of the way. That they had no inten- tion of purloining them is clear, from their conduct ; they carried them to a distance from the place whence they were taken, and there left them. They had no intention of selling them, or of appropriating them in any way to their own use, but merely to hinder them from being used to molest them in their intended escape. It is clear that they could not have, and indeed there is not a scintilla of evidence that proves a felonious intent, or that a robbery was com- mitted, or intended to be committed. So far from a robbery having been committed, though the cannon were removed and were carried away, it is only a high misdemeanor, a high trespass, that they have been guilty of. I will explain to you a little of the law upon the subject. There can be no felony committed without at the same time a trespass being effected; but there may, Gentlemen, be a trespass committed without at the same time committing a felony. This is very satisfactorily explained in the law quoted from Lord Hale by the Learned Gentleman who conducted the Defence. Looking then at the whole case, according as I have it upon my notes, it is so very plain, that there is growing out of it no sort of difficulty whatever. The reading of ray notes, which I have taken during the trial, would be a waste of your time, as I am sure it must be better impressed upon your minds from the attention you gave to the examination of the various witnesses who testified to the different parts of the case. It is, therefore, only necessary that I repeat to you, that there appears, from the whole, to be nothing for you to consider but the point of law 1 have stated to you ; because, if there is not a scintilla of proof of a felonious intent, though they did take away the cannon, as I have told you before, it will amount only to a trespass. The whole case is a strange one ; the part that the prisoners took has been very loosely proved, amounting to nothing more than be 197 thiit they were there; it' however it has been proved, to the satisfaction of your minds, that they moved one foot towards helping to take away these cannon, it will be for you then to determine, whether they were so taken with the intent to steal them or not. If you believe the last evidences you had before you, there was no intention of stealing them, but, on the contrary, it was only by way of precaution, that they might not be used to prevent their coming away to Canada. You will, however, say what is their offence. The Jury then retired under the care of Ofliccrs, and in some time returned ; and the customary forms being gone through, returned a verdict of NOT GUILTY. Chief Justice. — Have you, Mr. Attorney- General, any other business to bring before the Court, under the Great Seal Instruments from the Lower Province ? Attorney-General. — Nothing, my Lords. Before I hod understood it to be the decided and unanimous opinion of your Lordships, that you could not take cognizance of any offences not particularly specified in the Great Seal Instru- ments of Lower Canada, I had prepared Bills of Indictment against several persons, for offences not specified in the instruments which give us jurisdiction, upon informations which had been placed before me, and under the general words of those instruments, which refer the offenders to this Province for trial, for " all offences by them committed " in the Indian TenitorieSf" &c. But, as your Lordships are clearly of opinion that you can not try them, I must of course forbear further proceeding upon them, and enter a noli prosequi. Then, besides these Bills, my Lord, there arc several others found, for arson, and maliciously shooting, against persons whom we have, by the express words of the Great Seal Instruments transmitted to us, full authority to try, but who are not at present here to be tried, nor compelled to appear here by any recognizance which I can enforce. Against these I have already moved for the process of the Court, which has been awarded, and nothing further can be done at present. It is, moreover, my Lords, proper that I should remind your Lordships, that the Great Seal Iiistruntents against several of the persons charged wilh oflcnces committed in - ti ' '1 4 ; f m 198 the Jiidiaii Territories, directs them to be tried here for conspiracy. What kind of conspiracy, whether of a trea- sonable nature, or otherwise, is not defined ; and perhaps the expression is so indefinite, that your Lordships might doubt whether it sufficiently specified the offence to give the Court here jurisdiction. However, no doubt of that kind should have induced me to withhold the charge. 1 would have preferred the Bill, and left that point for the Court to decide ; but the decision which your Lordships have solemnly expressed upon the question of jurisdiction, having clearly excluded from trial for any charge of con- spiracy, those very persons whose acts of hostility against the Settlement were manifest, and while unexplained, most unjustifiable and atrocious, and led most clearly to the de- struction of the Colony, the object of the conspiracy charged by the informations in my hands, I found that i had not evidence sufficient to ground a charge against those indi- viduals whom alone we are authorized to try ; indeed, scarcely a shadow of evidence, except as we might prove them to have been connected with those over whom we have no jurisdiction, and whom we, therefore, can not charge ; and this evidence even went almost entirely to conduct for which these same persons had been already put upon their trial in another shape*. 1 have, therefore, my Lord, nothing further to submit to the Grand Jury ; and those Bills they have found, are now disposed of, at least such of them as we are enabled to proceed upon. Mr. Sherivoud. — Before the Court rises, I beg leave to move, that the Honourable William M'Gillivray be dis- charged from his recognizance. He has been for upwards of two years under security, to appear and answer certain charges of conspiracy and treason, and is now here, in ful- filment of the obligation into which he has entered in the Lower Province. Mr. Attorney-General having declared that he has nothing further to offer to the Court, I have a right to presume, tiiat those who occasioned Mr. M'Gillivray to be held to bail, have as little grounds for so doing, as the prcsL'ut session has shewn they had for imprisoning and holding to bail the various persons who have been acquitted by the respectable Juries who tried them. For a period of upwards of two years, Mr. M'Gillivray has been anxiously * Sec lliu ohstrvHtioiib on this part of tlic Attorney-Geiicrars speech at the clobc of tlic trial of Alexander Mackenzie and others. I' " h- 199 waiting to be put upon his triul, and most confidently did he hope, that when the authorities of the sister province transmitted him here, that it was only necessary for him to appear, to ensure his being permitted publicly to dis- prove the imputations which have been cast upon him, and repel the aspersions and calumnies with which he has been assailed. As that is denied to him, by the observations which have fallen from Mr. Attorney-General, I move that Mr. M*Gillivray be discharged from his recognizance. The Chief Justice informed Mr. Sherwood, that the Court could not receive his motion, because Mr. M'Gil- Jivray was not before it. The Grand Jury had made no presentment against that Gentleman. The Attorney-Ge- neral has just mentioned, relative to any charge of con- spiracy to which he (Mr. S.) might allude, that he did not find himself, from the decision of the Court upon the ques- tion of jurisdiction, in a situation which enabled him to prefer the charge to the Grand Jury, and consequently it was impossible that any relief could be afforded to a Gentle- man who was in no way before the Court. Mr. Sher- wood again complained of the hardship inflicted upon Mr. M'Gillivray, alleging that, as he had been two years with charges hanging over him, so he might remain for ever, unless upon fulfilling his recognizance by appearing in the Court to which he stands bound, the Court have power to discharg-e him. The Chief Justice again intimated the im- possibility of Mr. Sherwood's motion being entertained, and having dismissed the Grand Jury with the thanks of the Court for the attention they had given to their duties, their Lordships retired. 2(M) POSTSCRIPT. Since the proceedings at York, in Upper Canada, (the detailed report of which occupies the preceding pages,) at a Court of Oyer and Terminer held there on the 22d Febru- ary and following days, a Bill of Indictment was preferred, and found by the Grand Jury against, Thomas Douglas, Earl of Selkirk, Miles Macdonkll, John Spenckr, John Allen, Protais D'Odet D'Ousonnens, Frederick Matthey, ' GusTAVUs Adolphus Fauche, Frederick De Graffknried, John M'Nab, Donald M'Pherson, Archibald M*Donald, Jean Baptiste Chevalier Dk Lorimier, Alexander Bridport Becher, Louis Nolin, Jacques Chatelain, Pierre Chrysolocjue Pambrun, John Pritchard, John P. Bourkh, Michael Heden, and Jacob Vitsche, making in all twenty persons, for a conspiracy to ruin the Trade of the North-West Company, The Indictment contained three counts, and amongst the numerous overt-acts therein set forth, supported by docu- mentary and oral evidence, the following were particularly prominent. The engaging and arming a number of dis- banded soldiers, (foreigners) ; the entry by them, with force and arms, into Fort William, in August 1S16; retain- ing possession of the fort till May 1817 > sending off as pri- soners, the Partners of the North-West Company found there ; getting rid of the clerks by subpoenas to appear at York at a period when no Courts are held there, without enquiring of them whether they knew any thing of the mat- ters to which the subpcEnas related, and without ever bringing them forward afterwards ; stopping of the outfits ..^x.^ 201 Iroin going into the interior, and the returns from cominr to Montreal ; possessing themselves of all the books and papers of the concern ; sending away tlie principal clerk under a charge of felony without examination, and without having ever followed up that charge ; the pretended sale by Daniel Mackenzie of the North-West property, obtained by his Lordship by means of continued duress ; tampering with, and debauching the North-West Company's servants^ and commanding them in the King's name ; writing circu-> lar letters to the partners and clerks in the interior country, alleging that the North-West Company were ruined, and advising them to abandon their trust, and to carry the furs to Hudson's Bay ; taking possession of Fort Lake La Pluie, and the property there, and stopping the naviga- tion, &c. &c. Upon this being returned a true bill, the Attorney-Ge- neral moved the process of the Court again.«t the parties ; and Dr. Allen, who was the only one of the twenty within reach of process, was arraigned on the 27th February, and pleaded Not Guilty. He stated that- the witnesses for his deft lice being dispersed in various directions, he could not say when he should be prepared to take his trial ; where- upon he was bailed to appear at the Court of Assize in Oc- tober next at York, himself in lOOOi. and three sureties for 1000/. together. WILLIAM SMITH, versus THE EARL OF SELKIRK. This was a civil action, brought by Mr. William Smith against Lord Selkirk, for false imprisonment. It appeared in evidence, that the PlaintiiF was Under- Sheriff of the Western District, and as such, the bearer of a writ of restitution founded upon a verdict of a Special Jury at Sandwich, in October 1816, and granted by the sitting Magistrates, ordering the restoration of Fort William to the North-West Company ; he was also the bearer of a warrant tor felony, issued against his Lordship, Dr. Allen, Capt. Malthey, and others, upon an information upon oath before [ , 202 a Justice of the i'eacr. Mr. Smith gut to Fort William un the lOth of March, 1817» and produced h:' writ of restitu- tion, with which his Lordship reft >.•' \ ? )niply ; pud wlientheEarl and the others werearre9< . M ■. SniiM), upon the warrant for felony, his Lordship W.n ' iia of him and pushed him out of doors ; and he was afterwards ^iopt in close custody in the fort under a military guard. A cir- cumstance which added much to the grievous nature of the offence, and which was particularly dwelt upon by the Judge in his Charge to the Jury, was, that whilst Mr. Smith was kept in rigorous confinement, Charles Do Keinhard, though under an accusation for murder, was at large and keeping a school, though nominally under the surveillance of one or two of his former comrades. The Chief Justice also remarked upon another part of the evidence for the de- fence, by which it appeared that the only option left to Mr. Smith to obtain his liberty, was that of abandoning his duty, and breaking his oath of oAicc, by a promise not to molest Lord Selkirk : Mr. Smith, however, nothwithstanding this proposal, persisted in doing his duty, and was not liberated, until the evacuation of Fort William by his Lordship and his forces, in May 1817. The Jury, after some deliberation, returned a verdict in favour of the Plaintiff j Damages 500/. DANIEL M'KENZIE, veisus THE EARL OF SELKIRK. This was a civil action, for false iniprisonnicnt of the Plaintiff, a retired Partner of the North-Wcst Company, by the Earl, at Fort William, where he was thrown into a dungeon, though in a distressed state of mind, without any legal proceedings, (a circumstance which came out in the evidence which was produced for the Defendant), and kept there under a military guard, until he was induced (believing his life to be in danger) to sign various deeds prepared for the purpose, purporting to be sales of the North West Company's property, a bond of arbitration, &c. under colour of which Lord Selkirk retained possession of the fort and its contents, (u the value of full one hundred thousand 203 pounds. The Jury in this case gave a verdict for 1500^. Damages. These proceedings will be followed up by others in Canada and Great Britain, which will equally find their way to the public, and be a permanent record of the events and circumstances which have given rise to them. 1.. ! u of n)< H Jn tl)( or \vh llic om mei ina; iiiei «el soil; feili the don Idlli lOlll iiiis| ittci APPENDIX. A. UPPER CANADA. SAMUEL SMITH, ADMINISTRATOn. George the Tiiiwd, by tlie grace of God, of tlic United Kingduiii of Great Britain and heland, King, Defender of the Ftiitii : To our (rusty ami wi.'Ii-belovcd the Honourable William Dum- mer Pow»lI, Chief Justice of our Province of Upper Canada, the Honourable \Villiiun Campbell, the Honourable D'Arcy Boulton, Justices of onr Court, of our Bench, in and for our said Province, the Honoui;'.l)le Jiinies Baby, and Wiiliani Allan, Esquire, Justices of the Peace iii;ui(l for the Home District of our said Province, or to any two of dicm. (iRRKTING : Know yc \hM we hiive assigned you, or f^ny two of you, of whom We will liiat yn ihe said William Dummer Powell, you ihe said William Canijil/ '1, you tlif said D'Arcy Boulton, orury one of you, be one, to enquire by the oath of pood and lawful ii;en of the district aforesaid, ;)y whom the truth of the matter may be the bcUer known and ' Mrjuired of, and by other w:^ys, methods and means, whereby yon can or may the better know, as well within liberties «s without, mort fs!!') ihc truth of all trea- sons, misprisions of treason, insurrections, rebellions, connter- feitings, clippinji^s, washintis, false coinings and other falsities of the money of (Jieat Britain and Iceland, and of all kingdoms and dominions whatsoever, of all murders, felonies, manslaughters, hillings, bnrglaiies, rapes of women, unlaw f>»l meetings '^id tonventieles, unlawful uttering of words, unlawful assemblies, misprisions, eonl'cdcracics, false alle.-^ations, trespasses, riots, routs, ittcntioHb, cseapo>, tontempl-, f-dsitics, malignancies, conceat- if ^ Pi ■■ } t V \ didfai APPbNOIX. iiiotits inaiiitiiiancc9, oppressions, champartie^, deceits, and all other misdeeds and oft'eaces whatsoever, and alsu the accessaries of the same witain the District aforesaid, as well within hberties as witliout, by whomsoever and howsoever, had, done, perpe- trated and committed; and when, how, and in wliat manner, and by what person or persons, to what person or persons, and in what manner, and of all articles and circumistanccs whatsoever, any or either of them concerning ; and the same treasons and other the premises according to the law and custom of England, and the law of our said Province for this time to hear and de- termine. And therefore. We connnand yon, that at certain days and places, which you or any two of you, of whom We will that you the said William Dunmier Foweli, yt)n the said William Campbell, you the said D'Arcy Buulton, or any of you, be one, for this purpose shull appoint, within and fur the space of six calendar months, from the day of the date uf these presents, you do concerning the premises make diligent enquiry, and all and singular the premises hear and determine, and other things do and fulfil in form aforesaid, \trlnrh are and ought to be done, and to justice doth appertain according to the law nnd custom of England and the laws of our said Province. — Saving to us our amerciaments and other things thereupon belonging: for We have commanded our Sheriif of the said District, that at certain days and places, which you or any two of you, of whom We will that you the said William Dummer Powell, you the said William Campbell, you the said D'Arcy Boultnn, or any of you, be one, to him -thall make known within and for the space nf six calendar months from the day of the date of these presents, lie cause to come before yon, or any two of you, of whom We will you the saiistiMg, and maintaining the said Cuthbert Grant to do and eonunit the fi.lony and murder aforesaid, in fornj aforesaid, and so the jurors aforesaid, upon their oath aforesaid, say, that the said Cuthbert Grant, Louis I'errault, otherwise called Louis Morain, Paul Broun, Francois Firmin Boucher, and the other persons whose nanies are to the jurors aforesaid i\-> yet unknown, then and there feloniously, \\ilfully, aiul of thetv malice aforethought, in manner and form aforesaid, did kill and murder the said Robert Seniple, against the peace of our saiJ Lord the King, his CrowFi and Dignity. And the Jurt>rs aforesaid, upon tlreiroath aforesaid, do furll.er present, lliat Allen iNl'Don*-!!, late of Ihe Town of York aforesaid, gentleman, jolui Siveiiglit, late of tiie same place, gentleman, Seraphiin Laiiuiire, ioimerly of a place commonlv called lU'd River, and 1 ite of the I'own of York afore- said, gentleman, Ptlcr Paiiniiiai), late of I lie Town of Yorl: aforesaid, gentleman, formerly of the said place ct>mmonly called Red River, otherwise commonly called Peter Bostonnois, tint having the lear of God before their eyes, hut being moved aii(iseduref America not witliin the limits of either of the Provinces of Upper or Lower Canada, or of any civil go- vernment of tlie United States of America, and late of the Town of York afort said, gentleman ; and William Shaw, torinerly of the St' i' jjlace, commonly called Rvd River, and late of the Town of -' )rk aforesaid, gentleman, not having th«> fear of God before their eyes, but being moved and seduced by the instigation of the Devil, after the first day of J vine, in the year of 'jur Lord one thousand scveu hundred and twenty-three, to v.it ; on tim I M 11 I ! APPENDIX. I ;ih I twctity-eighth day of June, in the year of our Lord one thouMnd eight hundred and fifteen, and in the fifty-tifth year of the reign of our Sovereign Lord George the Third, by the grace of God, of the United Kingduin of Great Britain and Ireland, King, Defender of the Faith, about the hour of ten in the forenoon of the same day, with force and arms, at the Town of York, in the Houic District aforesaid, a certain house of the Kight Honourable Thomas Earl of Selkirk, there situate, feloniously, voluntarily, and maliciously, did sot fire to, and the same house, then and there, by such firing as aforesaid, feloniously, voluntarily, and maliciously, did burn and consume, against the form of the sta- tute in such case made and provided, and against the peace of our said Lord the King, his Crown and Dignity. And the Jurors aforesaid, upon their oath aforesaid, do further present, that Duncan Cameron, formerly of :^he said place, commonly called Red River, not comprised in any paris!) or county, but situated in the Indian Territories or parts of America aforesaid, and late of the Town of York aforesaid, gentleman, before the committing of the said felony, in form aforesaid, to wit: on the said twenty.eighth day of June, in the said fifty- fift't year of the reign of our said Lord the King, with force >>nd arms, at the said Town of York, in the Heme District aforesaid, did feloniously and maliciously incite, move, procure, aid, cjun- sel, hire, and conmiand the said George Campbell, Cut'abert Grant, and William Shav?, to do and con)mit the said felony, in manner and form aforesaid, against the form of the statuU^ in such case made at'd provided, and against the peace of our suid Lord the King, his Crown snd Dignity. And the Jurors aforesaid, upon their oath aforesaid, do further present^ that the said George Campbell, Cuthbert Grant, and William Shaw, not having the fe-.ir of God before their eyes, but being moved and seduced by the instigation of the Devil, after the first day of June, in the year of our Lord one thousand seven hundred and Iweuiy-three, to wit : on the twen- ty-eighth day of June, in the year of our Lord one thousand fight hundred and fifteen, and in the fiftv-tiHii jear ot the reign of our said Lord the King, about the hour o< ten in the forenomi of the same day, with force and arms, it the Town of V'ork, ni the Home Dblrict al'orevaid, a certain Uomo of one Altxandtv M'Ltan, there situate, feloniously, voluntarily, and uiahciously, did set fire to, and the same Inuise, then and there, by such firing as aforesaid, feloniously, voliMitarily, and niahciously, did burn and consume, against the form of the statute in such case uiad< and pr^nided, and against the peace of our said Lord the Kitig, his Crown ami Dignity. AihI the Jurors aforesaid, upon their oath aforesaid, do fur- ther present, that the said Duncan Cameron, before the com- niitliu^ of the said luat-mcntioned felony, in form aforesaid, to . - ■, t^'-.. APPENDIX. 7 wit: on the said twenty-eighth day of June, in the said fifty-fifih year of the reign of our said Lord the King, wilh force and arnu, at the said Town of York, in tlie Home District aforesaid, did feloniously and maliciously incite, move, procure, aid, coun- sel, hire, and command the said George Camphell, Cutlibert Grant, and William Shaw, to do and conmiit the said i.. t-tnen- tioned felony, in manner and furm afuresaid, and against the statute in such case made and provided, and against the peace of our said Lord the King, his Crown and Dignity. D. r, > The Jurors for our Lord the King, 3 upon their oath, present that Paul Brown, HOME niSTRICT, to wit : late of the Town of Vurk, in the Home District afuresaid, yeoman, on the twentieth day of June, in the fifty-sixth year o\ the reign of our Sovereign Lord George the Third, by the grace of God, of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith, with force and arms, in and upon one Michael Heden, then and there being, feloniously did make an assault, and him, the said Michael Heden, in bodily fear and danger of his life, then and there feloniously did put, and one blanket of the value of twenty shillings, and one gun of the value of forty shillings, of the goods and chattels of the said Michael Heden, from the person and against the will of the said Michael Heden, then and there feloniously and violently did steal, take, and curry away, against the peace of our ^^aid Lord the Kin^, his Crown and Dignity. E. in la- lid ise lir- HOMii DISTRICT,^ The JuROits for our Lord the Kin^, to wit : ) upon their oath, present that Cuthbeit Grant, formerly of a place commonly called Red River, not coin- prised within any parish or county, but situated in the Indian Territories, or parts of America not within the hniits of either of the Provinces of Upper or Lower Canada, or of any civil go- vernment of the United States of America, and late of the Town of York, in the Home District of the Province of Upper Canada, gentleman, Peter Pangman, of the said place, commonly called lied River, and late of the Town of York aforesaid, gentleman, otherwise called Peter Bostonnois ; Joseph Brisbois, late of the said Town of York, yeoman, and Paul Brown, late of the same place, yeoman, on the twelAU day of May, in the fifty-six t It - m^% Vi^'-v APPENDIX. iiii w. year of tljc icign of our Sovereign Lord GeorRC the Third, by the gruce of God, of the United Kingdom of Great Britain and , Ireland, King, Defender of the Faith, with force and arms, at the river Qui Appelle, to wit: at the Town of York, in the Home District aforesaid, twenty-two packs of furs of the vahie of one thousand pounds, sterhng money of Great Britain, six hundred bags of pemican, of the value of two thousand four hundred pounds sterling money aforesaid, twenty*four guns, of the value of seventy pounds Htcrling money aforesaid, and twelve packs of buffalo skins, of the value of fifty pounds sterling money afore- said, all of the goods and chattels of the Governor and Company of Adventurers of England trading; into Hudson's Bay, in five boats upon the said navigable river Qui Appelle, to wit : at York aforesaid, in the said Home District, then and there being found, feloniously did steal, take, and carry away, against the form of the statute in such case made and provided, and against the peace of our said Lord the King, his Crown and Dignity. And the Jurors aforesaid, upon their oaths aforesaid, further present, that the said Cuthbcrt Grant, Peter Pangnian, otherwise called Peter Bostonnois, Joseph Bri^buis, and Paul Brown, on the said twelfth day of May, in the fifty-sixth year aforesaid, with force and arms, at a certain place on the navigable river Qui Appelle, to wit: at York aforesaid, in the Home District afore- said, twenty-two packs of furs, of the value of one thousand pounds sterling money aforesaid six hundred bags of pemican, of the value of two thousand four hundred pounds sterling money aforesaid, twelve packs of buffalo skins, of the value of fifty pounds sterling money aforesaid, and twenty-four guns, of the value of seventy pounds sterling money aforesaid, of the goods and chattels of the said Governor and Company of Adventurers of England trading into Hudson's Bay, in u certain boat upon the said navigable river Qui Appelle, in the said Indian Territo- ries, or parts of America, to wit : at York, in the Home District aforesaivhich was in the year of our Lord one thousand seven lunulred and twenty-three, to wit: on the said eievenili day (d June, in the fd'ty-tifth yaar of the reign of our said Lord the King, with force and arms, at the Town of York aforesaid, in the said Home District, with certain guns charged with gunpowder and leaden bullets, unlawfully, wdfully, maliciously, and feloniously, did shoot at one Miles M'Donell, one James Sutherland, one Peter Pidler, one John Warren, and one Duncan M'Donell, (they the said Miles M'Donell, James Sutherland, Feler Fidler, John Warren, and Dimcan ^I'Donell, then being in a certain dwell- ing-house of the Right Honourable Thomas £arl of Selkirk, there situate), against the form of the stat\ite in that case made and provided, an, tnove, procurv, Aid, . nd abet, the said George Campbell, Cullibert Grant, and William Shaw, to do and commit the said last-n^entioned felony, in manner and form aforesaid, against the peace of our said Lord the King, his Crown and Dignity. And the Jurors aforesaid, upon their outb aforesaid, do further present, that the .(aid George Campbell, Duncan Cameron, Cuth- berl Grant, and William Shaw, bemg ill-designing and disorderly peisons, and of wicked and malicious dif^r^o^itions, after the first clay of June, which was in the year ot' our Lord one thousand ftcven hundred and twenty-three, to wit; on the eleventh day of June, in the fil'ty-fiflh year of the reign of our said Lord the King, with force and arms, at the Town of York aforesaid, in the Home District aforesaid, with certain guns charged with gun- powder ai.d leaden bulleb, unlawfully, wilfully, maliciously, and felouiwu.sly, did iihoot ul one Miles M'Donell, one James Su- therland, one Peter Fidler, one John Warren, and one Duncan M'Donell, in the peace of God and our said Lord the King, then and there being, against the form of the statute in such case made and provided, and against the peace of our said Lord the King, his Crown and Dignity. And the Jurors aforesaid, upon their oath aforesaid, do further present, that the said George Campbell, Cuthbert Grant, and William Shaw, being ill-designing and disorderly persons, and of wicked and malicious dispositions, after the Arst day of June, in the year of our Lord one thousand seven hundred and twenty- three, to wit : on the said eleventh day of June, in the said fifty- fifth year of the reign of our said Lord :he King, with force and arms, at the said Town of York, in (he Home District aforesaid, with certain guns charged with gunpowder and leaden bullets, unlawfully, wilfully, maliciously, and feloniously, did shoot at one Miles M'Donell, one James Sutherland, one Peter Fidler, one John Warren, and one Duncan M'Donell, in the peace of God and our said Lord the King, then and there being, against the form of the statute made and provided, and against the peace of our said Lord the King, his Crown and Dignity. And the Jurors aforesaid, upon their oath aforesaid, do further present, that the said Duncini Cameron, before the committing of the said last-mentioned felony, in form aforesaid, to wit : on the day and year last-aforesaid, with force and arms, at the Town of York aforesaid, in the Home District aforesaid, did wilfully, maliciously, and feloniously incite, move, procure, aid, and abet the said George Campbell, Cuthbert Grant, and William Shaw* to do and commit five said last-mentioned felony, in manner and form aforesaid, agiuust the peace of our said Lord the King, bis Crown and Dignity, API'KNUIX. 11 G. HOME DiSTUicT, J TiiK JuROHs for oiir I.onI tlic King, viz: j[ upon tlirir oulli, prt-stut tiiat(ieor{;;o Camp- bell, formerly of tlie parish of Moiilic-.il, in the District of Mont- real, and lute of llic Town of York, in the siid IIom\o Uittrict, ^eumuHi Kohert (iuiiii, formerly of the sam<< pari.-^h of Montreal, and late of the Town of York, in the said Home District, yeoman ; and Hector M'Donukl, hit', of the biiiue parish of Mont- real, and liite of the Town of York, in the said Home District, yeoman, being ill-designing and disorderly persoim, and of wicktnl and malicious dispositions, after the first day of June, in the year one thou^uiul seven huudretl and twenty-three, viz: on the twrnly- iifth day of May, in the fifty-lifih year of the reii;n of our Sove- reign Lord George the Third, by the grace of fJod, of the United Kingdoms of (Jreat Britain and Ireland, King, Defender of the Faith, with force hiv' nis at York, in the lionie District aforesaid, with certain gn i.trged with gunpowder and leaden bullets, unlawfully, wilfully, maliciously, and feloniously did shoot at otic Miles M'DoncU, Esquire, one James White, and one James Sutherland, they the said Miles M'Donell, James White, and James Sutherland, then being in a certain dwelling- bouse of the Uiifht Honourable Thomas Lurl of Selkirk, there situate, against (he form of the statute in such case made ami provided, and also against the peace of our said Lord the Kin{r, his Crown and Dignity. And the jurors aforesaid, upon their oath aforesaid, do i'urlher present, that the said Cicorge Campbell, Robert Gunn, and Hector M'Donald, being ill-designing ami disorderly persons, and of wicked and malicious dispositions, after the tirst day of Juno, in the year of our Lord one thousan(t seven hundred and uventy-three, to wit : on tlie said twenty-tifth day of May, in the said lifty-lifth year of the reign of our said Lord the King, with force and arms at York, in the Home Dis- trict aforesaid, with certain guns charged with gunpowder und Uaden bullets, iiulawfnlly, wilfully, maliciously, and feloniously, did shoot at one Archibald M'Donald, he the said Archihiilil M'Donald, iu the peace of God and our said Lord the Fling, Iti front of, and near a certain dwelling-house, then and there being, against the form of the statute in such case made and provided, and agauist the peace of our said Lord the King, his Crown and Dignity. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said George Campbell, Robert Gunn, and Hector M'Donald, being ill-designing and disorderly persons, and of wicked and malicious 3 ' m ..»-• --— 25"" IMAGE EVALUATION TEST TARGET (MT-S) 4o :/ & Crown and Dignity. I# H. HOMB DISTRICT,) The JuRORS for our Lord the King, to wit: 5 upon their oath, present that Cuthbert Grant, formerly of a place commonly called Red River, not comprised in any parish or county, but situated in the Indian Territories, or parts of America not within the limits of either of the Provinces of Upper or Lower Canada, or of any civil govern- ment of the United States of America, and late of the Town of York, in the Home District, and Province of Upper Canada, gentleman ; Louis Perrault, late of the said Town of York, yeo- man, otherwise called Louis Morain ; Paul Brown, late of the said Town of York, yeoman ; Franpois Firmin Boucher, late of the said Town of York, yeoman, and divers others evil-disposed persons, whose names are to the said jurors as yet unknown, not having the ft' r of God before their eyes, but being moved and seduced by the instigation of the Devil, on the nineteenth day of June, in the fifty-sixth year of the reign of our Sovereign Lord George the Third, by the grace of God, of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith, with force and arms, at the Town of York aforesaid, in the Home Dis- trict aforesaid, in and upon one Alexander M'Lean, then and there being in the peace of God and of our said Lord the King, fe- loniously, wilfully, and of their malice aforethought, did make APPENDIX. 13 an assault, and tliat a certain person, whose name is to the Ju* rors aforesaid as yet unknown, a certain gun of the value of five shillings, then and there charged with gunpowder and one leaden bullet, which gun, he the said person, to the jurors aforesaid unitnown, in both his hands, then and there had and held, then and there feloniously, wilfully, and of his malice aforethought* did shoot off and discharge to, against, and upon the said Alex- ander M'Lean, and that the said person, to the jurors aforesaid unknown, with the leaden bullet aforesaid, out of the gun afore- said, then and there, by force of tlie gunpowder aforesaid, by the said person, to the jurors aforesaid unknown, shot, discharged, and sent forth as aforesaid, then and there, feloniously, wilfully, and of his malice aforethought, did strike, penetrate, and wound the said Alexander M'Lean, in and upon the back of him the said Alexander M'Lean, under the left shoulder-blade of him the said Alexander M'Lean, giving unto him the said Alexander M'Lean, then and there, with the leaden bullet aforesaid, so as aforesaid, by him the said person to the jurors aforesaid un- known, shot, discharged, and sent fortli, out of Jhe gun afore- said, by force of gunpowder, in and upon the back of him the said Alexander M'Lean, one mortal wournd of the depth of six inches, and of the breadth of half an inch, of which said mor- tal wound the said Alexander M'Lean then and theae instantly died ; and the said Cuthbert Grant, Louis Perrault, otherwise called Louis INlorain, Paul Brown, and Franfois Firmin Boucher, at the time of the conmtitting of the murder and felony aforesaid, then and there feloniously, wilfully, and of tlieir malice afore- thought, were present, aiding, helping, abetting, comforting, and maintaining the said person unknown, to kill and murder the said Alexander M'Lean, in ninnncr and form aforesaid, and so the jurors aforesaid, upon their oath aforesaid, do say that the said Cuthbert Grant, Louis IV-rrault, otherwise called Louis Morain, Paul Brown, Francois Firniiii Boucher, and the said other person, whose name is to the jurors atorcsaid as yet un- hnoHu, then and there feloniou'^ly, wilfully, and of their malice aforethought, in manner and ibrni aforesaid, did kill and unirder llie s.iid Alexiinder M'Loan, against the peace of our said Lord the King, his Crown and Dignity And the Jurors aforesaid, upon their oath aforesaid, do further present, that Allen M'Donell, late of the Town of York afore- said, gentleman; John Siveright, late of the same place, gentle- jnun ; Seraphim Lamarre, formerly of a place connnonly called Red River, and late of the Town of York aforesaid, gentleman, Peter Pangman, formerly of the said place connnonly called Red River, and late of the Town of Y''ork aforesaid, gentleman, olhtrwise called Peter Bostonnois, not having the fear of God before tlieir eyes, but brinu moved and seduced by the in' lirjation of the Devil, hLloic the itloJi) and nmrdei last-uloresiiid, by the II ■i'.' II " i 14 ArPKNDir. Ill auid Ciitlibert Grant, Louis Perrault, otherwise mlled Lonii Morain, Paul Browti, Franj'ois Firinin Boucher, and tl)c said « .uid thatttls of one U iliiani Corn^":.il, ui the dwtlliiig- APPENDIX. 15 house of the said William Corrigal, there situated, then and there feloniously did steal, take, and carry away, and him the said William Corrigal then and there being in the said dwellinG^-house, did then and there put in bodily fear of his life, against ( e form of the statute in such case made and provided, and against the peace of our said Lord the King, his Crown and Dignity. And the Jurors aforesaid, upon their oath aforesaid, do further present, that the said Paul Brown, on the said tenth day of May, in the forty-eighth year of the reign of our Sovereign Lord George the Third, by the grace of God, of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith, with force and arms, at York aforesaid, in the Home District, three other packs of furs, containing beaver and otter skins, of the value of three hundred pounds sterling money of Great Britain, of the goods and chattels of the Governor and Company of Advenlurern of England trading into Hudson's Bay, in tlie dwelling-house of them the said Governor and Company of Adventurers of England trading into Hudson's Bay, there situated, then and there being found, feloniously did steal, take, and carry away, and one William Corrigal aforesaid, then and there being in the dwelling- house, did then and there put in bodily fear of his life, against the form of the statute in such cases made and provided, and against the peace of our said Lord tiie King, his Crown and Dignity. ■ ■• J. r, ) The Ju.iors for our Lord the King, 5 upon their oath, present lii^it George Canip- HOMP. DISTRICT. to wit : bell, formerly of the parish of Montreal, ia the District of Mout- rt-al, and late of the Town of York, in the Home District, and Province of Upper Canada, yeoman ; John Cooper, formerly of the said parish of Montreal, and late of the Town of York afore- said, yeoman ; Hugh Bennerman, formerly of the said parish of Montreal, and late of the Town of York aforesaid, yeoman ; Dun- can Cameron, formerly of a place commonly called Red River, in the Indian Territories, or parts of America not within the limits of either of the Provinces of Upper or Lower Canada, or any civil government of the United States of America, and late of the Town of York aforesaid, gentleman ; John Dougald Cameron, formerly of the said place commonly called lleil River, and late of the Town of York aforesaid, gentleman ; Cuthbcrt Grant, lornurly of tlie said place commonly called Red River, and late ot the Town ot Yuik ulurcsaid, gentlcmun ; William Shuw, for- f: J }6 APPENlrlX. u- M I merly of (lie said place commonly called Rid Uiver, and latti of tlic Town of York aforesaid, grnllcman ; I*«;ler Pnngman, for- iiicriy of the suid pliice coninionly called lied Uiver, and late of the Town of York aforesaid, genlleman, otherwise called Peter Bost«»nn(iis, on the third day of April, and the fifty-fifth year of the rc'ij,'u of onr SovtreiKn Lord George the Third, by the grace of God, of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith, with force and arms, ak the Town of Vork aforesaid, in the said Home District, four brass cannon, connnonly called field-pieces, of the value of one hundred pounds, four iron swivels, of the value of forty pounds^ and one liowitzer, of the v.due of ten pounds, all of the goods and chattels of the Right Honourable Thomas Earl of Selkirk^ in the dwelling-house of the said Right Honourable Thomas Eatl of Selkirk, there situated, then i>.nd there being found, feloni- ously did steal, take, and carry away, and one Mich^d Kilbride, one John Kerrigan, and one Alary M'Lean, then and there being in the said dwelling-house, did then and there put in bodily fcar of their lives, against the form of the statute in snch case made and provided, and against the peace of our said Lord the King, his Crown and Dignity. And the Jurors aforesaid, upon their outh aforesaid^ do further present, that the said George Campbell, John Cooper and Hugh Bennerman, afterwards, viz. on the said tliird day of April, in the year aforesaid, with force and arms, at i lie said Town of York, in the Home District aforesaid, four brass cannon, commonly called field-pieces, of the value of one hundred pounds, four iron swivels, of the value of forty pounds, and one howitzer, of the value often pounds, of the goods and chattels of the said Right Honotirable 'I iiomas Earl of Selkirk, in the dwelling-house of the i:*id Right Honourable Tliouias Earl of Selkirk, there situated, then and tl'.ere being Ibiuid, feloniously did steal, take and carry away, i.nd one Michael Kilbride, one John Kerrigan, and one Mary M'Lean, then and there being in the said dwelling-liouse, did^ tiien and there, put in bodily fear of their lives, against the force of the statute in snch case made and provided, and against the peace of our said Lord the King, his Crown and Dignity. And the Jurors aforesaid, upon their oath aforesaid, do further present, that the said Duncan Cameron, John Dougald Cameron, Cuthbert (irant, William Shaw, and Peter Pangman, otherwise called Peter Bostonnois, before the committing of the last-men- tioned I'elony, in form aforesaid, to wit: on the day and year aforesaid, with force and arms, at the said Town of York, in the Houje District aforesaid, ditl feloniously and maliciously comfort, aid, abet, assist, counsel, hire, and comnland the said George Cain|)bt'll, John Co«)per, and Hugh Bennerman, to do and com- mit the felony last- aforesaid, in manner and form aforesaid, APPENDIX. 17 ai;iiinst the form of the f^tatiiti; in such case made and proviilvd, and a<;ainst tlio peace of unr said Lord the King, \m Cruwn and Dignity. And the Jnrors aforesaid, npon their oath aforesaid, do fnrther present, that the said George Can«l within the hiiiiln of the Proriuco wht*ro the Niiinc shnll hi* trieil, uiiiirr the Miiil rcrited Act. And tvhi'rciiH, rtRii^oii l-'irniiii Boiirhcr \m% )wvi\ tippre- hi>nihMl fur Krvut crini<>H iiiid olii-iin'ii hy him coiniiiiltfd in the IiKhmi '|Vrri(uri<>\ or purtu of AiiM'tirn not wilhin the limits of ritlicr of llif hhmI IVovinn'H of Upper or l,ow«?r ('hiiihIh, or of nny civil f(ov«'rnnicnl of the lliiilcd SIiiIch nf Anicricii, imd Iihh Ixcn dclivct'cd into >tiil't' ciiMody in the I'rovinci; of Lower ('imn- dii, chiiriicd on oath with having, on llic niiiclcvnlh of Jinii*, in tlio year of onr Lord one ihoUMtnd fiKht hnndred imd .sixteen, at the Settlement Hi Hcd River, felonionNly killed and nnirdered twenty.one men, of whom (iovernor Semple was one, there to he dealt with according to law. And whereas the slid TranvoiK Firmin Honeher Iiiih lately repreienteil to onr trnsly and well- beloved Sir .lohn ('oh|h> SherhrooKe, Knight, (hand (!ro.ss of the MoHi Ilononrahle Mililnry Order of the ItHlh, onr Ciovernur in chief in and over our miiif ProvinccH of Upper and Lower (!ana- da, that the wilnes^rs to be produced in his defence ure resident, aume in the liidiun Territories, and others in the Province of Up* pir Canada, nnd that the said Fran^ S. John Taylor, Dc|)uly-8«crctury. M L. S. .1. c.siirjiiMiooKi:. imiovjn«;k OF I d i one, k tiik 'riiiitD, by the Cinia- LOWKII (JANAiiA.) of (lod, of the liiillcd KiiiKdoiii of (ircat nriluiii iiiid Irulaiid, Kin;;, DcfviidiT of \\iv. raitli. To itll to whom tht'Mc presents shall coiiic, or in any wise concern. (JRKKTINO: Whereas, in and by an Art nindt; and passed in the forty- third year of our reign, by uikI with the consent and advice oi the Lords Spiritual and Temporal and Commons of the United Kiiig pieces, of the value of one hundred pounds, of sterling money aforesaid, four iron swivels, of the value of forty pounds, ster- ling money aforesaid, and one howitzer, of the value often pounds, sterling monney aforesaid, of the goods and chattels of the said Right Honourable Thomas Earl of Selkirk, in the dwelling-house of the said Right Honourable Thomas Earl of Selkirk, there si- tuated, then and there being found, feloniously did steal, take, and carry away ; and one Michael Kilbride, one John Kerrigan, \ I: II i IV i 30 APPENDIX. '. I and one Mary IVf 'Lean, then and there being in the said dwell- ing-house, did then and there put in bodily fear of their lives, against the form of the statute in such case made and provided, and against the peace of our Lord the King, his Crown and Dignity. And the Jurors aforesaid, upon their oath aforesaid, do further present, that the said Duncan Cameron, John Dou-> gaid Cameron, Cuthbert Grant, William Shaw, and Peter Pang- man, otiierwise called Peter Bostonnois, before the committing the last-mentioned felony in form aforesaid, viz. on the day and year aforesaid, with force and arms, at the aforesaid place com- monly called Red River, not comprised in any parish or county, but situated in the Indian Territories, or parts of America not within the limits of either of the Provinces of Upper or Lower Canada, or of any civil government of the United States of America, and being within the jurisdiction of the said Court of King's Bench of our Lord the King, of and for the said District of Montreal, did feloniously and maliciously comfort, aid, abet, assist, counsel, hire, and conmiand the said George Campbell, John Cooper, Donald M'Kinnon, and Hugh Bennerman, to do and commit the said felony last-aforesaid, in manner and form aforesaid, against the form of the statute in such case made and provided, and against the peace uf our said Lord the King, his Crown and Dignity. And the Jurors aforesaid, for our said Lord the King, upon their oath aforesaid, do further present, that the said George Campbell, John Cooper, Donald M'Kinnon, and Hugh Bennerman, afterwards, viz. on the day and year aforesaid, with force and arms, at the said place commonly call- ed Red River, not comprised in any parish or county, but si- tuated in the Indian Territories, or parts of America not within the limits of either of the Provinces of Upper or Lower Canada^ or of any civil government of the United States of America, and being within the jurisdiction of the said Court of King's Bench of and for the said District of Montreal, four brass cannon, or pieces of ordnance, commonly called field-pieces, of the value of one hundred pounds, sterling money aforesaid, four iron swivels, of the value of forty pounds, sterling money afore- said, and one howitzer, of the value of ten pounds, sterling money aforesaid, of the goods and chattels of the Right Honour- able Thomas Earl of Selkirk, in the dwelling-house of the said Right Honourable Thomas Earl of Selkirk, there situate, then and there being found, feloniously did steal, take, and carry away ; and one Michael Kilbride, and one John Kerrigan, and one Mary M'Lean, then and there being in the said dwelluig-house, did then and there put in bodily fear of their lives, against the form of the statute in such case made and provided, and against the peace of OUT Lord the King, bis Crown and Dignity. And the Jurors aforesaid, upon their oath aforesaid, do further present, that the said Duncan Cameron, John Dougald Cameron, Cuthbert Grant, APPBNDIX. 31 William Shaw, and Peter Pangman, otherwise called Peter Bo»> toiinuis, afterwards, to wit : on the day and year aforesaid, with force and arms, at the said place commonly called Red River, not comprised in any parish or county, but situate in the Indian Territories, or parts of America not within the limits of either of the Provinces of Upper or Lower Canada, or of any civil government of the United States of America, and being within the jurisdiction of the said Court of King's Bench of and for the said District of Montreal, the said last-mentioned four brass can^ lion, or pieces of ordnance, commonly called litrld -pieces, four iron swivels, and one howitzer, being the goods and chattels so as aforesaid feloniously stolen, taken, and carried away, felo- niously did receive, and have, they the said Duncan Cameron, John Dougald Cameron, Cuthbert Grant, William Shaw, and Peter Pangman, otherwise called Peter Bostonnois, then and there well knowing the said goods and chattels last-mentioned, liave been feloniously stolen, taken, and carried away, against the form of the statute in such case made and provided, and against the peace of our said Lord the King, his Crown and Dignity. And the Jurors aforesaid, for our said Lord the King, upon their oath aforesaid, do further present, that the said George Campbell, John Cooper, Donald M'Kinnon, Hugh Ben- nerman, Duncan Cameron, John Dougald Cameron, Cuthbert Grant, William Shaw, and Peter Pangman, otherwise called Peter Bostonnois, afterwards, to wit : on the day and year afore- said, with force and arms, at the aforesaid place commonly call- ed Red River, not comprised in any parish or county, but si- tuated in the Indian Territories, or parts of America not with- in the limits of either of the Provinces of Upper or Lower Ca- nada, or of any civil government of the United States of Ame- rica, and being within thejurisdictionof the said Court of King's Bench, of and for the said District of Montreal, four brass can- non, or pieces of ordnance, commonly called field-pieces, of the value of one hundred pounds sterling money aforesaid, four iron swivels, of the value of forty pounds sterling money aforesaid, and one howitzer, of the value of ten pounds sterling money aforesaid, of the goods and chattels of the Right Honourable Thomas Earl of Selkirk, in the dwelling-house of him the said Right Honourable Thomas Earl of Selkirk, then and there being found, feloniously did steal, take, and carry away, against the peace of our said Lord the King, his Crown and Dignity. And the Jurors aforesaid, for our said Lord the King, upon their oath aforesaid, do further present, that the said George Camj^ bell, John Cooper, Donald M'Kinnon, and Hugh Bennernian, afterwards, to wit : on the day and year aforesaid, with force and arms, at the said place commonly called Red River, not comprised in any parish or county, but situated within the In- dian Territories, or parts of America not within the limits of ei- \ '1 jj.j (fo M. ^miumm 32 APPENDIX. tlicr of the Provinces of Upper or Lower Canada, or of any civil government of the United States of America, and being within tlie jurisdiction of the said Court of King's Bench, of and for the said District of Montreal, four brass cannon, or pieces of ordnance, commonly called field-pieces, of the value of one hundred pounds sterling money aforesaid, four iron swivels, of the value of forty pounds sterling money aforesaid, and one how- itzer, of the value of ten pounds sterling money aforesaid, of the goods and chattels of the Right Honourable Thomas Earl of Selkirk, in the dwelling-house of him the said Right Honourable Thomas Earl of Selkirk, then and there being found, feloniously did steal, take, and carry away, against the peace of our said Lord the King, his Crown and Dignity. And the Jurors afore- said, upon their oath aforesaid, do further present, that the said Duncan Cameron, John Dougald Cameron, Cuthbert Grant, William Shaw, and Peter Pangman, otherwise called Peter Ros- tonnois, before the said last-mentioned felony was committed in form aforesaid, to wit: on the day and year aforesaid, with force and arms, at the said place commonly called Red River, not comprised in any parish or county, but situated in the Indian Territories, or parts of America not within the limits of ei- ther of the Provinces of Upper or Lower Canada, or of any ci- vil government of the United States of America, and being with- in the jurisdiction of the said Court of King's Bench of and for the said District of Montreal, did feloniously and maliciously incite, move, procure, aid and abet the said George Campbell, John Cooper, Donald M'Kinnon, and Hugh Bennerman, to do and commit the said last-mentioned felony, in manner and form aforesaid, against the peace of our said Lord the King, his Crown and Dignity. And the Jurors aforesaid, for our said Lord the King, upon their oatb aforesaid, do further present, that the said George Campbell, John Cooper, Donald M'Kinnon, and Hugh Bennerman, afterwards, to wit: on the day and year aforesaid, with force and arms, at the aforesaid place, commonly called Red River, not comprised in any parish or county, but situated in the Indian Territories, or parts of America not within the limits of either of the Provinces of Upper or Lower Canada, or of any civil government of the United States of America, and being within the jurisdiction of the said Court of King's Bench of and for the said District of Montreal, four brass cannon, or pieces of ordnance, commonly called field-pieces, of the value of one hundred pounds sterling money aforesaid, four iron swivels, of the value of forty pounds sterling, and one howitzer, of the value of ten pounds sterling money aforesaid, of the goods and chattels of the Right Honourable Thomas Earl of Selkirk, then and there being found, feloniously did steal, take, and carry away, against the peace of our said Lord the King, his Crown and Dignity. And the Jurors aforesaid, upon their oath aforesaid, do further .',i«.s*fc. ■j^ j ^^„ ^ APPKNDIX. 33 but irilhin |inada, and iencli »n, or lvalue }ivels, value ittels fhere )inst Inity. Tlher present, Hot the said Diuhhii Comeron, Joliii Dounald Cameron, l-'nililtcilCirtiiit, William Sliaw, and Peter Pans^maii, otherwise called Peter Bitstomiois, afterwards, to wit : on the day and year aforesaid, wilii force and arms, at the said place commonly called Red River, not comprised in any parish or county, hut situated in the Indian Territories, or parts of America not with- in the limits of either tif the said Provinces of Upper or Lower Canada, or of any civil f{overnment of the United States of Ame- rica, and being within tlu' jurisdiction of the said Court of King's Bench, of and for the said District of Montreal, the said last- mentioned four brass cannon, or pieces of ordnance, commonly called field-pieces, four iron swivels, and one howitzer, being the goods and chattels so as aforesaid, feloniously stolen, taken, and carried away, feloniously did receive, and have (they the said Duncan Cameron, John Dougald Cameron, Cuthbert Grant, William Shaw, and Peter Pangman, otherwise called Peter Bos- tonnois, then and there well knowing the goods and chattels last- mentioned to have been feloniously stolen, taken, and carried away), against the form of the statute in such case made and provided, and against the peace of our said Lord the King, his Crown and Dignity. (Signed) Gilbert Ainslie, Clerk of the Crown. N. F.Uniackb, Attorney-General. As by the Bill of Indictment hereunto annexed, reference being thereunto had, will more fully and at large appear. And whereas the said George Campbell, John Cooper, Donald M'Kinnnn, and Hugh Bennerman, have lately represented unto our trusty and well-beloved Sir John Coape Sherbrooke, Knight, Grand Cross of the Most Honourable Military Order of the'Bath, our Captain- general and Governor-in-chief in and over our said Provinces of Upper and Lower Canada, that the witnesses to be produced in their defence, are resident, some in the Indian Territories, and others in the Province of Upper Canada, and that the said George Campbell, John Cooper, Donald M'Kinnon, and Hugli Bennerman, will have great diificulty, and be put to a heavy expence, in procuring the attendance of any of their witnesses at their trial in this Province : Now, therefore, know ye, that having taken the premises into our Royal consideration, and it appearing to our said Sir John Coape Sherbrooke, our Governor as afore- said, that justice may be more conveniently administered in the Province of Upper Canada, upon the said Bill of Indict- ment, found as aforesaid, and hereunto annexed, and in rela- tion to the great crimes and offences alleged to have been so as aforesaid committed by the said George Campbell, John Cooper, Donald M'Kinnon, Hugh Bennerman, Duncan Cameron, John Dougald Cameron, Cuthbert Grant, William Shaw, and Peter Pangman, otherwise called Peter Bostonnois, or any or either of them ; We have therefore thought fit hereby to declare the same. And further, that it is our Royal will and pleasure, that the d i !■ I. 1-4 y i 34 APPENDIX. I ' & ifaid George Campbell, John Cooper, Donald M'Kinnon, Hugli Bennernian, Duncan Cameron, John Dougald Cameron, Cuth- bert Grant, William Shaw, and Peter Pangman, otherwise called Peter Bostonnoit, and each and every of them, upon the Bill of Indictment found as aforesaid, and hereunto annexed, and for all other crimes and offences by them the said George Campbell, John Cooper, Donald M'Kinnon, Hugh Bennernian, Duncan Cameron, John Dougald Cameron, Cuthbert Grant, William Shaw, Peter Pangman, alias Peter Bostonnois, and each and every of them, heretofore committed within any of the Indian Territories, or parts of America not within the limits of either of the said Provinces of Upper or Lower Canada, or of any civil government of the United States of America, be prose- cuted and tried in the Court of the Province of Upper Canada, in which crimes and offences of the like nature are usoally tried, and where the same would have been tried, if such crimes or offences had been committed within the limits of the said Province of Upper Canada. In testimony whereof, we have caused these our letters to be made patent, and the Great Seal of our said Province of Lower Canada to be hereunto affixed. Witness our trusty and well- beloved Sir John Coape Sherbrooke, Knight, Grand Cross of the Most Honourable Military Order of the Bath, Captain-general and Governor-in-chief in and over our Province of Lower Canada, Admiral of the same, &c. &c. &c. — At our Castle of Saint Lewis, in our City of Quebec, in our said Province of Lower Canada, the twentieth day of November, in the year of our Lord one thousand eight hundred and seventeen, and in the fifty-eighth year of our reign. (Signed) J. C. S. Jno. Taylor, Deputy-Secretary. PROVINCE OF LOWER CANADA, ) AT His Majesty's Court DISTRICT OF MONTREAL, towit:)ot King's Bench for the District of Montreal, begun and holden at the Court-house in the City of Montreal, for the cognizance of all crimes and crimi- nal oftences, on Saturday, the first day of March, in the year of our Lord one thousand eight hundred and seventeen, and in the fifty-seventh year of the reign of our Sovereign Lord George the Third, by the grace of God, of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith, before the Honourable James Monk, Chief Justice of the said Court of King's Bench for the District of Montreal, and the Honourable Isaac Ogden, James Reid, and Louis Charles Foucher, Justices of our Lord the King of his said Court of King's Bench. -S&4.J, ArVKNOlX. 35 crimi- year of in the fge the Great kre the nurt of jurable justices MONTitKAi., ) Thk JiiroM lor our LonI llie Kiiic, upon their to nil : S "••••'! prt'sent, that (icorgt- Cuupbcll, late of the parish of Montreal, in the District of \Ioiitr<*ul, yeoman, Joliu Coope, late of the same parish, yeoman, Donald M'Kinnoii, late of the same parish, labourer, ilugh Henncrman, late of the same parish, yeoman, Duncan Cameron, lute of a place com- monly called Red River, in the Indian Territories, or parts of America not within the limits of cither of the Provinces of Up- per or Lower Canada, or nf any civil government of the United States of America, gentleman; John Dongald Cameron, late of the said place commonly called Red River, gentleman; Cuthbert Grant, late of the said place cnnmionly called Red River, gentle- man ; William Shaw, late of the said place conunonly called Red River, gentleman ; and Peter Pangman, late of the said place com- monly called Red River, gentleman, otherwise called Peter B09- tonnois, on the third day of April, in the fifty-tifth year of the reign of our Sovereign Lord George the Third, by the grace of God, of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith, with force and arms, at the said place commonly called Red River, not comprised in any parish or county, but situated in the Indian Territories, or parts of Ame- rica not within the limits of either of the Provinces of Upper or Lower Canada, or of any civil government of the United States of America, and being within the jurisdiction of the Court of King's Bench of our Lord the King, of and for the said District of Montreal, four brass cannon, or pieees of ordnance, com- monly c'aWcA field-pieces, of the value of one hundred pounds sterling money of Great Britain, four iron swivels, of the value of forty pounds sterling money aforesaid, and one howitzer, of the value of ten pounds sterling money aforesaid, of the goods and chattels of the Right Honourable Thomas Earl of Selkirk, in the dwelling-house of the said Right Honourable Thomas Earl of Selkirk, there situate, then and there being found, feloniously did steal, take, and carry away ; and one Michael Kilbride, one John Kerrigan, and one Mary M'Lean, then and there being in the said dwelling-house, did then and there put in bodily fear of their lives, against the form of the statute in such case made and provided, and against the peace of our Lord the King, his Crown and Dignity. And the Jurors aforesaid for our Lord the King, upon their oath aforesaid, do further present, that the said George Campbell, John Cooper, Donald M'Kinnoii, and Hugh Bennernr.in, afterwards, to wit : on the day and year aforesaid, with force and arms, at the aforesaid place commonly called Red River, not comprised in any parish or county, but situated in the Indian Territories, or parts of America not within the limits of either of the Provinces of Upper or Lower Canada, or of any civil government of the United States of Atnerica, and d .» i It m I MM- 7} I S6 APPFNDIX. he'iufi williiii llip jnrisdiclioii ut the suit! ('oiirt nl KIiik's IWncli of our Lord the King, of hihI lor tlic said Distrirtof Moiilrcul, four brass cannon, or pica's nf ordnunce, commonly cidlcd fifld-pieces, of the value of one hundred pounds sterling ninncy aforesaid, four iron swivels, of the value of forty pounds ster- ling money aforesaid, and one howitzer, of tlio value of ten pounds sterling money aforesaid, of the goods and ciiattels of the said Right Honourable Tliomas Karl of Selkirk, there situate, then and there being found, feloniously did steal, take, and carry away; and one Michael Kilbride, one John Kerrigan, and one Mary M'Lean, then and there being in the said dwelling-house, did tlien and there put in bodily fear of their lives, against the form of the statute in such case made iind provided, and agahist the peace of our Lord the King, his Crown and Dignity. And the Jurors aforesaid, upon their oath aforesaid, do further pre- sent, that the said Duncan Cameron, John Dongald Cameron, Cuthbert Grant, William Shaw, and Peter Pangman, otherwise called Peter Bostonnois, before the committing of the said last- mentioned felony, in form as aforesaid, to wit: on the day and year aforesaid, with force and arms, at the aforesaid place commonly called Red River, not comprised in any parish or county, but situated in the Indian Territories, or parts of Ame- rica not within the limits of either of the Provinces of Upper or Lower Canada, or of any civil goveriunent ot the United States of America, and being within the jurisdiction of the said Court of King's Bench for our Lord the King, of and for the said Dis- trict of Montreal, did feloniously and maliciously comfort, aid, assist, abet, council, hire, and command the said George Campbell, John Cooper, Donald M'Kinnon, and HughBennerman, to do and commit the said felony last-aforesaid, in manner and form afore- said, against the form of the statute in such case made and pro* vided, and against the peace of our Lord the King, his Crowu and Dignity. And the Jurors aforesaid, for our Lord the King, upon their oath aforesaid, do further present, that the said George Campbell, John Cooper, Donald M'Kinnon, and Hugh Bennerman, afterwards, to wit : on the day and year aforesaid, with force and arms at the said place commonly called Red River, not comprised in any parish or county, but situated in the Indian Territories, or parts of America not within the limits of either of the Provinces of Upper or Lower Canada, or of any civil government of the United States of America, and being within the jurisdiction of the said Court of King's Bench, of and for the said District of Montreal, four brass cannon, or pieces of ordnance, conmionly called field-pieces, of the value of one hundred pounds sterling money aforesaid, four iron swivels of the value of forty pounds sterling money aforesaid, and one howitzer, of the value of ten pounds sterling money aforesaid, of the goods and chattels of the said Right Honourable Thomas APPENDIX. 37 Rurl uf Selkirk, in (lie (Iwelliii^-lioiisc nl liiin the saieace of our Lord the Kiii_, his Crown and I)ignity. And the Jurors afore- »aid, upon their outh aforesaid, tlo further present, that the said Duiicun Cameron, John Dounaid Cameron, Ciithbert Grant, and William Shaw, and Petir I'angman, otherwise called Peter Bostonnois, aftcrwnrds, to wit: on the day and year hut-afore- said, with force and arin» at the «aid placo commonly called Ked lliver, not comprised in any parish or county, but situated in the Indian Territories, or parts of America not within the limits of either of the Provinces of Upper or Lower Canada, or of any civil government of the United States of Amcrici, and being within the jurisdiction of the said Court of King's Rtnch. of and for the said District of Montreal, the said last-mentioned four brass cannon, or pieces of ordnance, commonly called'Ht Id-pieces, four iron swivels, and one howitzer, being the goods and chattels so as aforesaid feloniously stolen, taken, and carried away, felo- niously did receive, and have, (they the said Duncan Cameron, John Dougald Cameron, Cuthbert Grant, and William Shaw, and Peter Pangman, otherwise called Peter Bostonnois, then and there well knowing the said goods and chattels last-mentioned to have been feloniously stolen, taken, and carried away, against the form of the statute in such case made and provided, and against the peace of our Lord the Khig, his Crown and Dignity. And the Jurors aforesaid, for our said Lord the King, do further present, that the said George Campbell, John Cooper, Donald M'Kinnon, and Hugh Bcnnerman, Duncan Cameron, John Dougald Cameron, Cuthbert Grant, William Shaw, and Peter Pangman, otherwise called Peter Boston- nois, afterwards, to wit : on the day and year aforesaid, with force and arms, at the aforesaid place commonly called Red River, not comprised in any parish or county, but situ- ated in the Indian Territories, or parts of America not within the limits of either of the Provinces of Upper or Lower Ca- nada, or of any civil government of the United States of Ame- rica, and being within thejurisdictionof thcsaid Court of King's Bench, of and for the said District of Montreal, four brass can- non, or pieces of ordnance, commonly called field-pieces, of the value of one hundred pounds sterling money aforesaid, four ir«»ii swivels, of the value of forty 'pounds sterling money aforesaid, and one howitzer, of the value of ten poinuls 'terliiig money aforesaid, of the yoods and rlitiltels of the llii-lil Honourable Thomas Earl of .Selkirk, in the dwclliiig-lKMise of him the jaid :.t i I # u !m' f ^ ,1 r I 39 APPENDIX. Right Honourable Thomas Earl of Selkirk, then and thore being found, feloniously did steal, take, and carry away, against the peace of our Lord the King, his Crown and Dignity. And the Jurors aforesaid, for our Lord the King, upon their oath aforesaid, do further present, that the said (ieorge Camp- bell, John Cooper, Donald M'Kinnon, and Hugh Bennernian, afterwards, to wit : on tiie day and year aforesaid, with force and arms, at the said place commonly called Red River, not comprised in any parish or county, but situated m the In- dian Territories, or parts of America not within the limits of ei- ther of the Provinces of Upper or Lower Canada, or of any civil government of tht United States of America, and being within the jurisdiction of the said Court of King's Bencli, of and for the said District of Montreal, four brass cannon, or pieces of ordnance, commonly called lield-pieces, of llie value of one hundred poimds sterling money aforesi.i(., four iron swivels, of tlie value of forty pounds sterling money afore- said, and one howitzer, of the value of ten pounds sterling money aforesaid, of the goods and chattels of the Right Ho- nourable Thomas Earl of Selkirk, in the dwelling-house of him the said Right Honourable Thomas Earl of Selkirk, then and there being found, feloniously did steal, take, and carry away, against the peace of our Lord the King, his Crown and Dignity. And the Jurors aforesaid, upon their oath aforesaid, do further present, that the said Duncan Cameron, John Dougald Cameron, Cathbert Grant, William Sliaw, and Peter Panguian, otherwise called Peter Bostonnois, brfore the said felony was connnitted, in form aforesaid, to wit : on the day and year last-aforesaid, with force and arms, at the said place conunonly culled Red River, not comprised in any parish or county, but situated in the Indian Territories, or parts of Ame- rica not within the limits of either of the Provinces of Upper or Lower Canada, or of any civil govenmient of the United States of America, and being within the jurisdiction of the said Court of King's Bench, of and for the said District of Montreal, did feloniously and maliciously incite, move, procure, aid, and abet, the said George Campbell, John Cooper, Donald M'Kin- non, and Hugh Bennerman, to do and commit the said last- mentioned felony, in maimer and form aforesaid, against the peace of our said Lord the King, his Crown and Dignity. And the Jurors aforesaid, for our said Lord the King, upon their oath aloresaid, do further present, that the said George Camp- bell, John Cooper, Donald M'Kinnon, and Hugh Bennerman, afterwards, to wit : on the day and year aforesaid, with force and arms at the said place commonly called Red River, not comprised in any parish or county, but situated in the Indian Territories, or parts of America not within the limits of ei- ther of the Provinces of Upper or Lower Canada, or of any APPENDIX. 39 civil governnieiit of llie United States of America, and being within the jurisdiction of the said Court of King's Bench, of and for the said District of Montreal, four brass cannon, or pieces of ordnance, commonly called field-pieces, of the value of one hundred pounds sterling money aforesaid, four iron swivels, of the value of forty pounds sterling money aforesaid, and one howitzer, of the value of ten pounds sterling money aforesaid, being the goods and chattels of the Right Honourable Thomas Earl of Selkirk, in the dwelling-house of him the said Right Honourable,Thomas Earl of Selkirk, then and there being found, feloniously did steal, take, and carry away, against the peace of our Lord the King, his Crown and Dignity. And the Jurors aforesaid, upon their oath aforesaid, do further present, that the said Duncan Cameron, John Dougald Cameron, Cuthbert Grant, William Shaw, and Peter Pangman, otherwise called P*>ter Bostonnois, afterwards, to wit : on the day and year aforesaid, with force and arms, at the said place commonly called Red River, not comprised in any parish or county, but situated in the Indian Territories, or parts of America not within the limits of either of the Provinces of Upper or Lower Ca- nada, or of any civil government of the United States of Ame- rica, and being within the jurisdiction of the said Court of King's Bench, of and for the said District of Montreal, the said last-men- tioned four brass cannon, or pieces of ordnance, commonly called field-pieces, four iron swivels, and one howitzer, being the goods and chattels so as aforesaid, feloniously stolen, taken, and carried away, feloniously did receive and have, (they the said Duncan Canieron, John Dougald Cameron, Cuthbert Grant, William Shaw, and Peter Pangman, otherwise called Peter Bostonnois, then and there well knowing the said goods and chattels last-men- tioned to have been feloniously stolen, taken, and carried away), against the form of the statute in such case made and pro- vided, and against the peace of our said Lord the King, his Crown and Dignity. (Signed N. F. Uniacke, 7 Attorney-General. 3 (Signed) Gilbert Ainslie, Clerk of Crown. ii.| ?aI l^ ft.. ■h 40 APPKNDIX. P. By His Excellency Sir John Coape Slierbrooke, Kniglit (iiand Cross of tliti Most Honourable Military Order of the Bath, Captain-General, and Governor-iu-Chief in and over the Pro- vinces of Lower Canada, Upper Canada, Nova Scotia, New Brunswick, and their several Dependencies, Vicc-Adini- ral of the same, Lieutenant-General and Commander of all His Majesty's Forces in the said Provinces of Lower Canada and Upper Canada, Nova Scotia, and New Brunswick, and their several Dependencies, and in the Islands of Newfound- land, Prince Edwjfrd, Cape Breton, and Bermuda, &c. &c. &c. A PROCLAMATION. Whereas, in and by a certain statute of the Parliament of the United Kingdom of Great Britain and Ireland, made and passed in the forty-third year of His Majesty's reign, intituled, " An " Act for extending the jurisdiction of the Courts of Justice in " the Provinces of Lower Canada and Upper Canada, to the " trial and punishment of persons guilty of crimes and offences " within certain parts of North America, adjoining to the said *' Provinces :" It is amongst other things enacted and declared, that from and after the passing of the said statute, " all offences *' committed within any of the Indian Territories, or parts of " America not within the limits of either of the said Provinces of " Lower and Upper Canada, or of any civil government of the " United States of America, shall be, and be deemed to be, " offences of the same nature, and shall be tried in the same " manner, and subject to the same punishment, as if the same " had been committed within the Provinces of Lower or Upper " Canada." And whereas, under and by virtue of the above in part recited statute. Justices of the Peace have been duly nominated and appointed, with power and authority to apprehend, within the Indian Territories aforesaid, and to convey to this Province of Lower Canada for trial, all and every person and persons guilty of any crime or offence whatsoever : And whereas, there is reason to believe that divers breaches of the peci^ by acts of force and violence, have lately been com- mitted within the aforesaid Indian Territories, and the jurisdic- tion of the aforesaid Justices of the Peace : I have therefore thought fit, by and with the advice of His Majesty's Executive Council of and for the Province of Lower Canada, to issue this Proclamation, for the purpose of bringing to punishment all persons who may have been, or sha" " '» &* APPENDIX. 41 of any such act or acts of force or violence us aforesaid, or other crime or offence whatever, and to deter all others from following their pernicious example, hereby requiring all His Majesty's sub- jects, and others, within the said Indian Territories, to avoid and to discourage all acts of force or violence whatsoever, and all proceedings whatever tending to produce tumults and riots, or in any way to disturb the public peace. And I do hereby strictly charge and command all Justices of the Peace, so as aforesaid nominated and appointed under and by virtue of the above-mentioned statute, and all Magistrates throughout this Province, and do require all others His Majesty's subjects generally, in their several and respective stations, to make diligent enquiry and search, to discover, apprehend, and conmiit, or cause to be committed to lawful custody, for trial in due course of law, pursuant to the provisions in the above statute contained, all persons who have been, or shall be, guilty of any act or acts of force and violence as aforesaid, or of any other crime or crimes, offence or offences, within the said Indian Territories, to the end that the laws may be carried into prompt execution against all such offenders, for the preservation of peace and good order therein. Given under my hand and seal at arms, at the Castle of St. Lewis, in the City of Quebec, in the said Province of Lower Canada, this sixteenth day of July, in the year of our Lord one thousand eight hundred and sixteen, and in the fifty-sixth year of His Majesty's reign. (Signed) J. C. SHERBROOKE. By His Excellency's Command. (Signed) Jno. Taylor, Deputy-Secretary. ' Q. By His Royal Highness the Prince of Wales, Regent of the United Kingdom of Great Britain and Ireland, in the name and on the behalf of His Majesty. - * A PROCLAMATION. J. C. SHERBROOKE. Whereas, by an Act of Parliament of the United Kingdom of Great Britain and Ireland, passed in the forty-third year of His Majesty's reign, intituled, " An Act for extending the jurisdiction " of the Courts of Justice in the Provinces of Lower and Upper " Canada, to the trial and punishinent of persons guiliy of criine> , '< APPENDIX. 'A\ (• «( «< «c 44 APPENDIX. } were possessed thereof previous to the recent disputes between the aforesaid companies. And we do hereby require in like manner, of nil and every person and persons whomsoever, whom it doth or shall, or may in any way concern, the removal of any blockade, or impedi- ment by which any party, person or persons, may have attempted to prevent, or interrupt the free passage of traders, or others of His M^esty's subjects, or of the natives of the said Indian Territories, witli their merchandize, furs, provisions, and other effects, throughout the lakes, rivers, roads, and every other usual route or communication heretofore used for the purpose of the fur-trade in the interior of North America ; and full and free permission for all persons to pursue their usual and accustomed trade, without hindrance or uiolestation, hereby declaring, that nothing done in consequence of this Proclamation, shall in any degree be considered to affect the rights which may ultimately be adjudged to belong to either or any party, upon a full consider- ation of the circumstances of their several claims. And whereas, for the purpose of restraining all offences in the said Indian Territories, and of bringing to condign punishment the perpetrators of all oflences there committed. His Excelle.icy Sir John Coape Slierbrooke, Knight, Grand Cross of the Most Honourable Military Onler of the Bath, His Majesty's Captain- General and Governor in chief, in and over the Provinces of, Low^r anu Upper Canada, Nova Scotia, New Brunswick, and their several Dependencies, Lieutenant-General and Conmiander of all His Majesty's Forces in the said Provinces, &c. &c. by and with the advice of His Majesty's Executive Council of and for the said Province of Lower Canada, hath nominated, constituted and authorized the Honourable William Bachelor Coltman, one of the Members of the said Council, a Lieutenant-Colonel in His Majesty's Indian Departn)eut, and one of His Majesty's Jus- tice of the Peace for the Western District of the said Province of Upper Canada, and John Fletcher, Esquire, Barrister at Law, one of the principal Police Magistrates, and Chairman of His Majesty's Court of Quarter Session for the District of Quebec, a Major in the said Indian Department, and one of His Majesty's Justices of the Peace for the said Western District of Upper Ca- nada, to act as Civil Magistrates and Justices of the Peace for the said Indian Territories, and parts of America aforesaid, as well without as within the said Provinces of Lower and Upper Canada, under and by virtue of the said Act, and also. His Majesty's special Commissioners for inquiring into and investigating all of- fences committed in the said Indian Territories, and the circum- stances attending the same, with power and authority for such purposes. And whereas, the said Williuni Bachelor Coltman, and John APPENDIX. 45 Fletcliei-, are iniineiliutcly about to proceed to the said Indian Territories!, in execution of the trust so reposed in them : — We do hereby strictly charge and command, in tiie name and un the behalf of His IVlajesty, all Sheritl's, Bailiti':>, Constables and other officers of the peace, and all others. His Majesty's officers, servants and subjects, civil and military, generally, in their se- veral and respective stations, to make diligent enquiry and search, to discover aud apprehend all persons who have been or shall be guilty of any such crimes or offences as aforesaid, or any other crimes or uflfences whatsoever, within the Indian Territories, or parts of America in the said Act mentioned and described, whether without or within the said Provinces of Lower or Upper Canada, and to cause them to be carried before the said Wil- liam Bachelor Coltman and John Fletcher, or one of them, or such other Magistrates as may hereafter be appointed for the like purposes, or otherwise be invested with competent jurisdiction in that behalf, to be dealt with according to law, and by all law- ful ways and means whatsoever, to repress and discourage all such crimes and offences; requiring and directing them, and each of them, as well within the said Indian Territories or parts of Ame- rica, as elsewhere, to be aiding and assisting to the said William Bachelor Coltman and John Fletcher, in the execution of the duties wherewith they are charged, as such Magistrates and spe- cial Commissioners as aforesaid, in all their endeavours for the repression and discouragement of all such crimes and offences wheresoever, or by whomsoever perpetrated or committed ; for the detection and apprehension of all such persons as have been, or hereafter shall be concerned or implicated in the perpetration thereof, and for the maintenance and preservation of the peace and of the laws. In faith and testimony whereof. We, by our express Command, in the name and on the behalf of His Majesty, have caused the Great Seal of the Province of Lower Canada to be hereunto affixed. Witness our trusty aud well-beloved Sir John Coape Sherbrooke, Knight, Grand Cross of the Most Honourable Military Order of the Bath, Captain-General and Governor in chief of the said Provinces of Lower and Upper Canada, Nova Scotia, and New Brunswick, Lieutenant-General and Commander of all His Ma- Majesty's Forces in the said Provinces, «fec. &c. at the Castle of Saint Lewis, in the City of Quebec, in the said Province of Lower Canada, this thir, i iii III i i in./ni.mftimj < Biw* ii » ii " " -^-nr^- '-««^r,i^a:i^. *^. , ,fc.t>y, . ^ I APPENDIX. % to jiisticc'under this Act, as fully and amply as any siibpceiias or other processes are withhi the limits of the jurisdiction of this CJourt, from wliicli any such subpoenas or processes shall have iwued as aforesaid ; any act or acts, law or laws, custom, usage, matter or thing to the contrary notwithstanding. 4th. Provided always, and be it/urther enacted, That if any crime or offence charged and prosecuted under this Act, shall be K roved to have been committed by any person or persons not eing a subject or subjects of His M^ijesty and also within the limits of any Colony, Settlenient, or Territory belonging to any European stales, the Court before which such prosecution .shall be had, shall forthwith acquit such person or persons, not benig such subject or subjects as aforesaid, of such charge. 3th. Provided nevertheless. That it shall and may be lawful for such Court to proceed in the trial of any other person, being a subject or subjects of His Majesty, who shall be charged with the same, or any other offence, notwithstanding such offence shall appear to have been committed within the limits of any Colony, Settlement, or Territory belonging to any European state as aforesaid. FINIS. ', , t;^ . : ^> t< Hi London i Printed by B. M'MiUant ? Bow-SircetiCovent-Garden, S 1 <••:■ --~,-;Ai..J. 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