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BY VTILLIAM S. SIiMPSON, EsqumE. MONTREAL : . i»RI2?TED BY JAMES LANE, 29, ST. PAUL STREET. FOR THE REPORTER. a8i9. ^•^P^wl T?A tMi^.l dAlfi 1 ".'i a}iAiii^i?!?-i [ifi &aj>jAfic> (T'-r f ». ■ ' A I /?/^/*(f 3' . V.' a .air^inerciii; •■: vv 1 Lj^iiT y;. a'.\Viv..i--ioo) .i:i^i! ^n^^SSl^aJ^io O 'i' fti yaM ;>:'m5i':» ,'ru>::^>!vi-u"^i HirF7r or «.; [7?i J i2Li'ivi aj/ ... ^..^ -y ,.^ iiv ^. •■-*. i-^tC* V i' "' < pEM^AClt* \«i. 3# .l.'\»- AiTHoron tfie $vh$lanee of tlie indpient proceedings which look t)1ac^, IP diffiiseil over the following page*; it may, perhaps, be advan- tageous (particularly to the European reader,) to offer, by way of in- troduction, a condennetl outline of thfoi. The manner in which CliarUi De Reinhdrd wan delivered over to tlip custody of Ihe copiititutetl authorities of Lovotr Canada, (after a knowledge of the murder had been obtained) agreeably to the Act of Mid Gvo. III. cap. 138, is fully exhibited in the testimony of Mf. CoUman ; it is, therefore, only requisite, in endeavouring to attain- completely the object of this preface— nhmfely, that of the reader** Imving a knowledgio of the entire progress of the prosecution — that thii sketch should present a succinct narrative of occurrences in thatprovinee< In March, ISli, an indictment was pi'eferred in the Court ofKing*t Jieneh, for the district ohMonlreal, against Chdrtes Dt Reinhard, Jrehi* bald M^Lellan, Cuihbert 'drant, and Joieph Cadotle, was returned by the Grand Jury, a true bill. At thii time it will be re<:olleole had gone away, (having been in at- . tendaiice Nince morning,) to get some refreshment. T|)is be|ng stated to the Court — — Chief Justice SewelL—We cannot take this witness, for if we begifi^ we cannot avo|d finishing )iis eviden<». We will also mention that, it 'will be desirable for the gentlemen engaged in this cause, to he pi^par* ed to shew us, in the event of itsjproving incapable of being finished by twelve o'clock to-morrow night, what course is then to be taken. We mention |t to all eoapernedt the gentlemen engaged on the defence, aa wtW »t llie officers of the Crown, thot M>e point may be taken into oott« uidcratioii by tbrm, and ibey may be prepared. It majf appear that the Prinuitcrt have rii;lili in that caie at well ai the Crown. We mention It thiii early, Tor the reaion I have stated, that our functions terminate at twelve o'clock to-morrow night. The Court then adjourned. Oil tlie 51f/, La Pointe was examined : The material diflferences be- tween )iiii, and FaitUU testimony, on the Arst and second trials, are no- tlcetl in the examination of Mr. Juttiee Ptrrauit, (page 154, et teq.) — to uliich being added, those I have pointed out in the notes accompany- ing tlie Siimnuiry, it li believed the whule are brought into view.~My examination, ( page 162,) leaving the point which 1 was called to prove, completely in $talu quo ; it perhaps io due to my own reputation, to aa- sert molt positively, that the description of Fnnth spoken by lie Rein- hard, was, in March, depicted by La Pointe in these words : " II parloU ** Franfoii, comme tm Mewon^* or in other words, that he did not speak good French. The decision upon the question proposed by the Prison- er's counsel to Mr. Breuer^ in connection with this subject, (page 157, tt teq) determining that — in a legal point of view — his capacity in that particular, was unimportant ; the expression, if inserted upon the j'utff e«* notes, would have been " mere surplusage," and for that reason it was prolmbly '* rejected as unnecessary.*' My confidence that it tons used, a- rises from the impression instantaneously forced upon my mind, that ihe confession which I had previously read; could not possibly be the production of Dc Heiiihard^i pen, if he only spoke French ** like a Jleu- '' ron,^* as fully as from finding the expression upon my notes ; and I trust, without incurring the guilt of presumption, I may add, that I consider it a circumstance well calculated to weaken the claim of the eonfesiiion tq credit, actually^ though not legally— iheX from ignorance 9f the language, the Prisoner was incapable of drawing it up. But returning from this digression — the examination of Captain D^Orsonnens succeeded to that of La Pointe. JNothing material appear- ed, during its progress, beyond what is given in the present report, nor any additional circumstance, if we except the production to, and ac- knowledgment by. Captain D^Orsonnent of the requisition to Mr. Dease^ which on the present trial was not allowed to be gone into, as it was dated subsequent to the confession, {page 79.) A copy of it i^, however, given below,* as it was frequently referred to, as being at variance with Captain D^Orsonnens* description of himself. * TBaNBLATION. ^' From tlu Portage of Lake la P/uiV, - *Uhe 6th October iUe. SIR. ** The personal safetv of His Majesty's subjects, requires, for f * fear of surprise'or accident, that you should deliver to uic all ibe arm!>, *' ammunition, powder, shot, &c. &c. &C.-— which you have io your pos- iiil Proof of this paper not being allowed— jtfr. Stuart closed his exa- mination on the voire dire, and the trial was immediately terminated in a Hiode which, if not unprecedented, is certainly novel in criminal cases. Tbe minute taken of these proceedings follows: Attunity-Gencral. — As it will be impossible to close the trial by hotlvt o^ciock, I propose, and the proposition is assented to on the part of the Prisonets, that a Juror be withdrawn. Chief Justice Sewell. — There must be a motion made, fo that the subject may be brought regularly before us, and our decision be made »f record. It may be made a precedent. Attomey-'GeneraL — I shall move, that tfie last Jnror sworn be with- drawn. I believe that to be the usual course. (Ilaving written hit mo- f*»n.) I move " that Pierre Roi, a Juror, sworn in the case of DominUM •' JJex, versus M^'ItellananA t)c Reinhaed, be withdrawn from the box.'* Chief Justice Seictll. — State some cause for the motion — either from the number of witnesses yet to examine, or any other which yon think proper, so that it may appear, on a future occasion, for the justification of the Court. Altomey'Gtneral. — I will move, viz: " That Pierre Hot, a .Turor, ** mny be withdrawn, because it is imposssble to receive the verdict by •♦^ twelve o'clock." ^li':. . '. Chief Justice Setcell. — It being impossible •• to close the case on the *^part of the Crovm,^* would be better, and it certainly will be impossi- ble. The charge alone, upon tbejevidence already received, would ou- copy three hours. Attorney-General. — I will then make the motion as follows : '* That ^ it being impossible to close the evidence on the part of the Crown be- ** fore twelve o- clock, and the functions of the Court then terminating, **hh moved by the Attorney-Gentral, that Pierre Roi, the Juror last ** sworn, be withdrawn,*' which is consented to on the part of the Pri- wners. Chief Justice Setcell. — Archibald M^Lellan and Charles DeReinhard, — on the part of the King it is proposed that — as the Crown officers cannot close their evidence before /twelve o'clock at night, at which pe- riod the authority of this Court terminates — Pierre Roi, the Juror last " session at the fort, and which belongs to the North-W«j.t Company. — " The arms that are private property, will alone be respected, for your ** own safety. " I have the honour to be, ** Your very humble and obedient servant, " Captain P. D'Orsonnens, " Commanding the tidvance guard of the Voyageurs of ** the Hudson'** Company, Sec. Sec. tee. / ** P. iS^.— The pickets will be cut down by my people, yours may as- ** assist them, if you deem it expedient." sworn, be witlidrawh from tlie box. The ffftcl of this motion will be that the cauoe will revert exactly to the jflire situation iii whiah it would have been, if the trial hail nectr ciminenccd. Do you consent or not? The Prisoners severally consenting, the Chief Jasliee addressing tixt Jury, returned them the thanks of the Court, and discharged them. In May following, a Court of Oyer and Terminer was held at Qttebet, and an indictment being preferred against Charles De Reinltard, antf others, (page S,) for the Murder of Oi<«t Keveny^ was returned " a /rue 6i7/," against the whole. Of the accused lico only appeared—vii : Charles De Reinhard, who hud recuiined in close custody, and Archi- bald M^Lellan, who after the March proceedings, bad been admitted to bail. The absence of Mainvillc and Desmarais, is in some degree ac- counted for, in a former part of this introduction ; whilst with reference to Grant and Cadotie, it is only necessary to state, that upon the GraaJI Jury, In ^arcft, returning no bill against them, they were pet at llljcrty. Having traced the prelimina/y measures, the following pages ar« offered to public notice, with confidence that the ** befort (at largtj of the trial of Cuarlks De Reinhard'' contains an accurate repre* sentation of that important legal investigation in all its stages ; and that '' the scMHART of ARCHIB&I.B M'Let.l an's*'' exhibits an impartial and sufficiently comprehensive statement of the proceedings which termi- nated in his acquittal. Upon the disputes so frequently referred to in tlie progress of these trials, contrariety of opinion will undoubtedly exist, though all must deplore a contest which has exhibited scenes of bloo4- 8ht heavy but unfounded accusation of inciting their servants to the perpetration of the crime. The validity of thij appeal is denied, and the result unequivocally attributed to ineffici- ency in conducting the trial, arising from *' tlie assumption by the '• Atlomey and SjUcilor-General, of the exclu^^ive management of the " prosecution." It was hardly to be anticipated, from the animodty which characterizes the conflict, that any course of investigation wouM secure an united approval. Whether the mc»l eligible was selected lA the first instance, and whe4her vigilance and efficiency characlerizeJ the inanagem'Mit of thexe prosecutions, are questions which have been an- ew red in the affirmative mid in the ne-^ative. The opinion of Lof4 Selkirk on ihp.isp: pwceedings, ah initio ad itrminutianemy may, perhj»j«. be accurately infeiTed from the following remark on the C rownofficett conscriiir.g to liberate Mr. M'L Uan on \.\\\ " To accept of bail la " such a case, ai)d, under snob fiircuin^tauces, was a proceeding unpre- " cedentcd in a British Court of Justice, and betrayed the dctermina- >■-. m »u i':. " tion, already taken, to throw the whole gnilt of the iminltr on DV ** jReinliardf a foreigner, in order to screen his accomplice, n partner in " the NorthAVest Company." On these opposing sentiments I ofliier no opinion at present. Td f'riends, whose expectations and wishes will incline them to diliapprovfli this determination, I can only offer the assurance that, though complying with the solicitations of those I respect is at all times peculiarly grate- ful, had I done so in this instance, I should most probably have sacri- ficed an esteem which is personally too flattering to seek fur justification beyond the pa£tiii1ity which dictates it. t would also add, that consi- derable deliberation has led me to doubt the propriety of commenting upon a case which is still under the consideration of the supreme au- thority, in whose hands is vested the fate of the Unfortunate indivi- vidual, most interested in its decision. At a future period, should no abler pen, guided by a judgment equally impartial and capable, obvi- ate the necessity, I propose to submit, through the same medium, a conciw narrative df occurrences (in connection with the disputes) which bave taken place in the Indian territories, the provinces of Canada, md at homty since the year 1812; and, assisted by the additional infor- mation which, it is to be hoped, tlie investigation by the British Parlia* ment will afford, I shall, uninfluenced by prospects of pecuniary advan- iage~indifferent to the frown as to the smile of ** the powers that be" •^and (a much more diificult task) unbiassed by the endearing, but se- ductive, sympathies of friendship, add those reflections which shall have satisfied my .jwn mind, whisre culpability attaches. The encourage- ment given to ttic present publication appeared to demand this expiana^ tion, and, I trust, that in giving it, I shall escape the charge of egotism. The volume will, it is trusted, realize Hs prospectus. In endeavour- ing to attain this object, my obligations to the dmrt, commenced with the proceedings, and have been continually augmenting, up to the mo- ment I am writing ; whilst to the professional gentlemen, on either side^ lam equally indebted. The facilities afforded — ^by the accommodation of a convenient seat, during the trials — the liberal access to libraries, with persiission to take therefrom the various authorities, and the revi- sion and correction afforded to the MSS.— render me deeply their debt- or, and although the obligations should titvtr be cancelled, they shall be alwayt remembered and gratefully acknowledged.— If its fidelity should constitute it a work, which may be advantageously consulted for legal reference, I have accomplished the object sedulously aimed at, and the gratification I shall experience, will amply reward the anxiety I have felt to entitle it to that distinction. m WILLIAM S. SIMPSOX, CivKBEC, 28/A Oelober, 1819, 1 ■)■ DlSTRICt dP atrEBEC. Special Session of Oyer and TermineRi and * GenIeral Gaol DeLiv^rV* " ■ . ' I Ok Monday the IStb May, 1818, a spiecial Semion of Oyer and Terminer, and General Gaol Delivery, for the District of Ctuebec, vrad opened with the cuitomary formalities at the Court-house, in the city of Ctuebec. The commission in addition to authorising the trial of per* sons accused within the district^ extended the power toi the trial of of- fences ** eommUied within cny of the Indian Territories, or parts of Amt/^ " rica not lot^Atn the limits vf either of the sdid Provinces of Upper or ** Lower Cantfito, ^r of any eitil GoverTunent of thf United States ofAme^ ** rtea.'* Although the cases from the Indian Territory were expected to form the principal business of the Session, in his charge to the Grand Jury, the Chief Justice did not advert to them, unless the following re- mark may be supposed to refer to that part of the Sheriff's Calendar. ** <^en/femm, . ^ '* Upon pemM of the Sheriff's Calendar, we do fiot perceive " that it exhibits any commitments which require particular notice at " this moment, it may howeyer happen, that in the progress of your ^* enquiries, solne points of law may occur, upon which you may be de« *' nrous fb take the opinion of the Court, and, if this should be the case, ** you will find ui at all times ready and desk-oas to afibrd you every ** assistance, in the executron of your duty, which it h in our power to " give." On Wednesday the fOth May, the Grand Jury returned as true a Bill of Indictment, charging various persons with the Mupler of Owis Kevsitt, on the 11th day of September, 1816, at the Do/fes, on the ri- ver Winnipic, in the Indian Territories. Mr. Attorney-General inunt- ff' III: diattly morecl that Charkt D« RtinJuird be put to the bar for the pur* pOM of arraignment. The priwner was then arraigned in the usual form, and having pleaded Not Gviltt, fixed Friday the 22d inatant, •s the time at which he should be readjrto enler upon his trial f to* which day the Court was adjourned ; his honour the Chief Justice hav« Ing previously intimated to the gentlemen summoned to attend as petty Jhirors, the absolute necessity of their punctual attendance at eight o^clock in the^ morning, that the prisoner might have the full benefit of the right of challenge, giv^n him by the laws of his country ; and, ** Genllemm^" (added his honour,), " /Ae Court, to enturo thii right in its *^fuUe»t extent, will feel itte^ obliged, in jrutite to tho Prisoner^ to tm- " pose a fine upon every defaulter.** .-.h. Friday, 22i May^ 1818.. rRESSNT/ •%>^;. t .j -, >^', His Honour CaixV' J^stxcs Ririrtira<&. The Honourable Mb. Juyncs Bovsv. Covnselforthe,Qrownm M». SoiiZCXTaB-GSNlftAlj Mitn»AKXh "i*--- Coumtifbr the Pttsomer* gxovgb vanvxx.sov, Andrew Stvart, 3, B. VAX.X.XIBB 9B St. Bbax, \ Es^irtK t. / Tbb Prisoner, Charles Vie ReinJuu-d, being put to the bar, the paB4 nel was called over, and after various challenges on his part, o» well af, on that of the Crown, the following gentlemen were 8worn ai a Jury : Thomatf LevalUe, Stephtn CurtiSf Laurent Andy, Joaqth MivUhi OUvUr Trahoufi, Rdgtr SctsseviUHf Rcdph Brewer^ Jean Lt^ormey Simon Le Comte, Joseph Prevottf Daniel Thompeon^ Jean Demoyes, V- . M ^: * '■}M i^\ ' i'^ ■?>^..'. ■3 K;^•'•> Hi The PrisonCT was tben glv«n hi dmr ge- to the Jury tiy (he Clerk of the Crown. It Is not coniWered necesavry to set forth the whole of the very long Indictment, eonilsting of eight counts, abomiiling with tech- Blealltles ; Indeed it might perhaps be sufficient to state, that the whole indictment charged that Owen Keveny was killed on the 11th Septem- ber, 1816, by Charles De Ilelnhard, with a sabre or with a gun, or with both, or that one Fraffjc » Mainville killed hini witha gun, and that the present Prisoner was present, aiding, assisting, &c. &c. ; bat to enable the reader ftiHy to understand the case, the first count is giren at length together with a skeleton of the remainder 6f the indictment. DOMINUS n^X, On an IndicimeiU for the Murder of Owen Keveny , on the \\$h day of Sep- . rf'^oJiiri nififi di'A) -n: "•V I. . -M, v€rsut ' • CHARLES DE BEINHAtlD, ARCHIBALD M»LELLAN, CUTHBERT GRANT, JOSEPH CADOTTE, FRANCOIS MAINVILLE, JEAN BAPTISTE DESMARAJS.^ «,rCBBC, TO WIT. ^ _ ,j Tab Jurors for our Lord the'Klng, upon tMr oath, present, that Charles DeReinhard, late of a certain place in the River Winnipic, not known by any name and 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 Canada, or of any civil go- vernment of the United States of America, labourer, Archibald M^Lelr )an, late of the same place, gentleman, Joseph Cadotte, late of the same place, gentleman, Cuthbert Grant, late of the same place, gentleman, and Jean Baptiste Desmarais, latA of the same place, labourer, not hatr- iog the fear of God before their eyes, but being moved and seduced by the instigation of the devil, on the eleventh day of September, in the fifty>sixth year of the reign of our Sovereign Lord George the Third, by the Grace of God, of the United Kingdom, King, defender of the Faith, with fotce and arms, at the said place in the 'River Winnipic, not comprised In any parish or county, but situate In the Indian Terri- ries, 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 State of America, and being within the jurisdiction of this Court, In and upon one .Owen Keveriy, in the peiHse of God and of our said Lord the King, then and there being, feloniously wllhilly and of their malice .■I ';^ii 'ii ■■:t 4 -, ;^^. pferaUiougltt, Aid make an afsauU, and that tl^e iai4 CharlM De B«in- hard, with a certain sword called a aabre, made of iron and steel, of the value of five shiilingf, which he the said Charles De Re^nhard, (h his right hand, then and there had and held, him the said Owen Keveny, in and upon the bapk of him the said Owen Keveny, under the left tihoulder*blade of him the sa|d Owen Keveny, then and there, felonious- ly, wilfully and of his malice af<^ret)|ought, did strike, stab, thrust, and penetrate, giving unto him the said Owen Keveny then and there, with ^e sabre aforesaid, in and upon %he back of him the s^id Owen Keveny, under the left shoulder-blade of him the said Owen Keveny, two mortal wounds, each of the breadth of two inches, and of the depth of six in- ches, of which said mortal wounds, he the said Owen Keveny then and there instantly died ; and that the said Archibald M'Lellan, Cuthbert Grant, Joseph Cadotte and Jpan Baptiete Desmarais, feloniously, wilfully and of their malice aforethought, were then and there present, aiding, helping, abetting, comforting, and Diaiqtaining, the said Charles De Reinhard, the felony and murder aforesaid, in ipanner and form aforeoaid, to do, commit, and perpetrate. And so the Jurors aforesaid, upon their oath aforesaid, do say, that the said Charles De Reinhard, Archibald M'Lellan, Cuthbert Grant, Joseph Cadot, and Jean Baptiste Desma- rais, him the said Owen Keveny then and there, within the jurisdiction aforesaid, in manner and form aforesaid, feloniously, wilfully, and pf their malice aforethought, did kill and murder, against the peace of our said Lord the King, his Crown and Dignity. ■ •' Second. — De Reinhard killed Owen Kenevy with a'^^n; M*LelIan, Grant, Cadotte and Desmarais, being principals in the second degree present aiding. Sec. T^t'rd.— De Reinhard killed Owen Keveny with a gun and sabre, conjointly ; M'Lellan, Grant, Cadotte and Desmarais, principals in the second degree. Four/A.— -Francois Mainville killed Owen Keveny with a gun ; De Reinhard, M^Lellain, Grant, Cadotte and Desmarajs, being principals in the second degree. ^- Fifth. — De Reinhard killed Owen "Kevejiy w{th a aabre,— ^th. He killed him^ with a gun. — Seventh, He killed him with a gun and sabre, con- jointly ; and each of these counts charged M'Lellan, Grant, Cadotte and Desmarais, with being aeeessaries before, and after, the fact. — ^The Eighth and last count, laid that Francois Mainville killed Owen Keveny with a gun ; De Reinhard being a principal in the second degree, and the r^- IBftaining four persons ai^essaries before, and after, the fact. , Mr. Attorney:-Genera1 then opened the caie to the Jury, in nearl/* the following termi. Oentlemen of the Jury, You have been sworn to try tVe Priaoner at the baf, named Charles De Reinbard, who is accused of having made on the 11th day of Septembfsr, in the fifty-sixth year of the reign of bis Majesty, an aiisault upon one Owen Keveny with a sabre, and giving him therewith two woundii, which caused his death. There are, gentlemen, varioui counts in the indictment, but they nil arrive at the same conclusion.— (The Attorney-General then detailed to the Jury the nature of the differept eounts, as exhibited in the abstract given above, rentarkingy that the evi- dence to be produced, tcould prove that the deceased met his death princi' pally by the wounds given by the Prisoner with his sabre.) — ^This,^ gentle- men, is one of the cases brought from the Indian Territory, and will, I am confident, receive that patient investigation, to which, from its im- portance, it is entitled. From the evidence we shal) produce, there can exist no doubt of the death of Keveny, and I fear as little, that he came to it by the^hands of De Reinhard. The deceased was a native of Ire- land, in the service of the Hudson's Bay Company ; and the Prisoner at the bar, was formerly a serjeant in the regiment De Meuron, but at the breaking up of that corps, entered into the service of the North-West Company. — It appears that Mr. Keveny havjng arrived in the Indian country, with a number of pjersons under his charge, complaints were made against him by some of them, and he was ajrrested by the Prisoner at the bar, in virtue of a warrant issued by a Mr. Archibald Norman M'Leod. The deseased was a man of high spirit, and did not fur some time submit to the warrant, but I believe opposed its execution with considerable violence. Whether this circumstance did not give rise, in the mind of the Prisoner, to that degree of malice which eventually caused the death of this man, Owen Keveny, it will be for you to determine. [The Attorney-General then narrated the particulars of the evidence given by Fatlle and fjd Pointe, up to the period of their finding the deceased en hatU des Dallet, for whiqh their testimony is referred to.] It is here, gentlemen, that the evidence begiqs to affect the prisoner, in the strongest manner. After staying some tfme in thif place, De Reinhard took Keveny in charge ; and, with Mainville an<^ the Indian Jose, was to follow M'Lellan and the others who went away in his (M'Lellan*s) canoe;— when they had proceeded a few miles, it will appear to you in evidence that the deceased having occasion to be put pn shore, it was determined, by Mainville and the Prisoner at the bar, that the place was suitable to carry into effect the design (which it will It .:^(1 ll fill %t dhewn had long previounly exUted) of taking away tbe lire of Owea Keveny. Tbe deceaiied bad returned rrom a nbort dUtanee* whither be had gone fpr bin necexrary oceasiuno, and was in tbe act orre*embarking in the «anoe when the priaoner at the bar gave him a thrust in the ^ vi^k with a sabre, and subsequently another. Mr. Keveny, notwithstanding be was wounded, made such resistance that it was not improbable but be would have succcrded in wresting the sabre from the Prisoner, but that he counsriled tbe Mttif Mttinville tc fire at him, which be did. and Kcvrny falling into the canoe, instantly ex|iired. [Tbe Attorney-General then stated succinctly the occurrencei, as ^tailed by Failh and Jm Pointe, from the time of tbe canoe with the Prisoner, Mainvilje and Jofi arriving at M*LellanV encainpment, up fo the prripd of dividing tbe bulin of Keveny, remarking, that from this chain of corroborative evidence— and, from the nature of the crime, it was scarcely ever possible to exhibit positive testimony—be feared the Jury would not be able to doubt of the guilt of the Prisoner at the bar, althouKh that positive evidence of the murder should not be Intror ducnd, ivbicb it was always desirable should precede a conviction, and, which, on accusation of all other crimes, the Crown officers were enabled to produce.] In coinf losion, the Attorney-General observed, GmtltnuHf Another very strong proof We shall produce, will be the Prisoner's own confession, made to an officer of the same regiment tq which the Prisoner had formerly belonged, a captain D'Orsonnens, whom he met some time after, and to whom he voluntarily confessed that he had kilted Keveny ; and, on various other occasions, be also freely confessed it. Indeed, I believe he never denied it. We shall also produce a confession in the Priso ier*s own band-writing, made before a iQagistrate, in which the whole of the circumstances are detailed, as I have related them. Upon this ch&in of evidence I apprehend you will have little difficulty in returning a verdict for the CroWn. The people to be produced before yon are the traders of the Indian country, canoe- men and engages ; of a tower order of men, certainly ; but, 1 believe, every way entitled to credit; that, however, gentlemen, as I mentioned jdst now, is peculiarly your province to detertntne. Tbe case is one of those which hive arisen from the unfortunate dioputes between the Hud- son's Bay apd North- West Companies, relative to which we have heard 80 much, through newspapers and pamphl«>t8, but, to which, I am sure, gentlemen, you will pay no attention ; otherwise, I would beg Of yau, to allow nothing to have the slightest influence on your judgments, but what is produced before you In evidence. We do not know what is th<" defence th« PrIiOBfrwin eetupt If hecaa eonvince your tonecJencai that he did not commit the crime be is accused of, you will acquit bin : If, on the other hand, the Crown eR(abllf*hea the case I have detailed to you, It will be your duty, by the oatba you have taktfn, though a very l^alnful one— yet your duty will be to lay, He Is Guitty. He has put hiraseiron God and bis country for his trial, and you, as that country, ore to decide upon his guilt or his Innocence. The Jttomey-Generai hating addre$std the Jury to Iht same effed in the French language^ cdUed Mr. Sax ; /Ae other vfUnefscM being ordered fc uiithdravt with the exception nf Messrs. Coltman, Gale ttnd Bouchette. WILUAM SAX, 8*vortu • t I am a surveyor, and I know from a map which I have here, «s w«H ' as from others, the limits of the Province of Upper Canada, and of the ancient Province of ducbec. Its western limit is a line drawn northward from the mouth of the Ohio, which is in 37* 10' north latitude, and 88* 50' weit longitude, from Greenwich. A line drawn due north from tbta point, towards the Hudson's Bay territory, would strike Lake Superior, [at about a degree to the east of Fort William, or three quarters of a. [degree ; t. e. it would leave Fort William about three quarters of a de- cree to the west. I am acquainted with the River Winnipic by maps, [and it is between the 50th and 51st degree of north latitude. The spot [called Portage da Rats Is, by this map, in 491** northern latitude, anA [in lonk,itude 94*^ 6' west of Greenwich. The River Winnipic Is about [ five degrees west of a line running north from the mouth of the Ohio Liver, at its junction with the Mls»iissippl, and certainly without the limits of the old Province of Cluebec. I now speak of a due north line, ind not a northuiard line — — [This explanation of Mr. Sax*i meaning gave rise to considerable Idiscuiision between the Chief Justice, the Crown oSicerF, Prisoner's [counsel, and the witness, as to the import of the terms due north and Inorthtcard. The Bench and Crown officers considering the terras north and northward as synonimous. Mr. Sax and the Prifoner^s counsel 'contended that a north line must be astronomically north, whilst a line : might be drawn having an incP.nation to some other point of the com* pass, yet gaining upon the north in its progress it would in tbo parlance of surveyors, be denominated a northward, northwestward or norlhcasl- ward line, as the case might be. It is not thought necessary to give the i whole of the discussion, or rather altercation, that ensued, as the fol- lowing questions and answers sufficiently exhibit the distinotioji dranrj by the juices and witness.] , [f '''ill III' 'iil li 111 I ill il ! I ■■ .s ■ Chief Juitiu Knoe//.— 'If a line U to be dranrn from a given point of tbe oompnM, say from the we»t, la a northward direction, to tay that luch a line would not be a due north line appeari io me to be a eontra« dtetion to the plalneit principle of common senie, and totally irreeon- cileable. I will put the question to you again, air. Do I understand you to say, thai a line drawn flrom a given point, mrlhward, i» not a norlh line ? JIfr. S!ax.— 'Surveyors usually call lines running— ^^ Chief J uitiee Sewell.'-'l tm not asking you what surveyon usually call. I want to know whether in point of fact, a fact that any man can tell as well as a surveyor, whether a line from a western or eastern point of the compass drawn northward. Is, or is not^ a north line? Just answer that question, yes or no ; and thtn you may explain that answer in any way you think proper. Mr. £bx.— it certainly must be, to ■ certain extent, pi north line, but not a due north line. Chief Juitiee Sewe/Z.—Wby not? Mr. Sax. —A line drawn from any point between two cardinal points of the compass, direct to any cardinal point, is a due north or west line, as the case may be ; but a line may be so drawn between two points, as to be called by surveyors a northward or southward line, as it may chance to gain in the course of running it upon that point of the corn* pass to which it is approaching ; as I might draw a line from u point north-westardly, but gaining in a northerly direction in its course, so that at its termination it would be a line northward, from having more northing there than at the point from which I itarted. Altomey'Oeneral.^'K you were directed to draw a boundary line northward, would you qualify it in any way by drawing it to the east or west, or would you go as nearly in a direct north course as possible. Mr. Sax. — If I bad to draw a line northward without any other in* Btruction, I should draw it due north, or magnetically north, according io my directions. The variations, in some places, between an astrono* mical and magnetical north line extend from twenty to thirty degrees, whilst, in other places, they agree. I should draw such a line magne* tically north if there were variations, and astronomically if there were not ; an astronomical line would be a true parallel. [The Attorney-General having requested the Court to take that down, the eicamination was continued with reference to the line of se- paration between the Province and the United States of America.] Mr. Sax.—A line drawn due west from Portage des Rats, whicb, by English and American maps, is the most north-western j^art of the Lake of the Woods, would neVer strike .the River Mis^ssippx. A Hoe '•r'li n point of !|^H o tay that Ij^H a eentra* f^M y irreeon- ^H jnderitand |^H /, it not a I^H iff usually ^Ib t any man ^ 1 or eastern V« lorth line? .'M xplain that m north line, -«^ •dinal points J >r west line, 73 two points, % B, as it may )f the com- r •em » point ^ 8 course, so laving more «;< undary line _^M the east or |l 1 possible. (^ ny other in- ;.j^ h, according ^^ I an astrono* MB rty degrees, |^ line magnc- ^H if there were ■■^ to tatce that ^M le line of se- ^| merica.] ^H Rata, whicb, ^| 1 i^art of the PH ippi. A line Jh driWi dot tNiT IM tk« liioit north-WMtara point of tte Laki of th# Woods, would Imto tba whole of the River WInnipIc to the north of it ; and, were • line to be drawn from that point to any part of the B /er~Mi«i«ippi, the whole of the River Winnipic would be to the north and west of it. MtUthU map of the United Statu fredtmd, VfH Mr. &«.— Thii map leaves it wholly to the north-weft, ezeepting, perhaps, a particular elbow, where the river runs into the lake. "The proper point of departure is at the very point where the river and lake unite, and this is in conformity with thd best charts or maps, both Knglith and American. « . ... ■■ i Crcfif>«ramtno< by Mr, VatlUre de 8t. Rial. Mr. Sax.'-i have seen many charts and maps, and it is from them I derived my knowledge of the latitudes and longitudes of which I have spoken. According to the maps of Jeffries and Bonchette, the westerly limit of the old Province of duebee, from the junction of the Ohio with the Mississippi, is the course of the latter river to its source in Turtle Lake, which is in latitude 47<> S8' north, and longitude 94^, or, more correctly, 95' degrees west from Greenwich. From the source of the llississippi in Bouehette*s map, the line is drawn due north to the Hud- son's Bay territory ; Jeffries' nUp takes the line no further ih'kik Turtle Lake. Accordifag to this boundary, the whole of the Lake of the Woods and that part of the River Winnipid caHed the Dalles, would be to the east of such line. Jeffries was an English geographer, but I do not know when his map was published. • ; ' ; ^ r, .• Mb. JOSEPH BOUCHETl^, JiririOB, I9u9m, ■ < Examined by the Jttorney-Generai, ' J ' ' >, ■.*'■' '\ ■■ ■ ■-■ ■ Mr. Boudtette.'^t am deputy to the Surveyor-General. The west- cm limit of Upper Canada, is formed by a line running north from the junction of the Rivers Ohio and Mississippi, to the southern limits of the Hudson's Bay. The junction of these rivers is in lati- tude S7<* 10' north, and the longitude is 88<' 58' west, from the me- ridian of Greenwich; and this line will leave the whole of the River Winnipic to the west Portage des Rats is in latitude 19^ 5V north, and longitude 94* 10' west, from Greenwich. The place called the Dallei is twelve miles to the north of Portage des Rats, according to Arrowsmith. The most north-western point of the Lake of the Woods I. V i3 It In UUtttde 41* t8' north, nA loaglludn fi* fS' wmI, froa Of wieb. A Una drawn from tk« mott nortlMrMttfn point of tho Lako of Iho Wood! to any part of tho River MMarippl, will lanvt Um whola of tha Blror Wlanlpla to tha north ; and tha tama thing will happen If a Una ba drawn due wait t and ooniequantlj that rlvar U without tha houndarlat of tha United Statei of America. Tha Dallei ara to the north of the Lake of the Woodi, and alio of Portage det Rati, and con- lequently not within the United Statei. ■?* 'iiir 1 ^««i> I Cnti'txamhud 6jf Mr. Shurl, Mr. BWiduittf-^l am nineteen yean old. 1 nerer wai at the mouth of the River Ohio, nor at the Lake of the Woods, nor at the Biver Wlnnipic. I do not ipeak from any perwnal obiervntlon. My know- ledge of the latitude and longitudes ii derived from my Ihther'i map, now befora me, and Mr. Arrowanlth^i, pobliihad in 1795. The greenr line upon the manuieript map before roe, prolonged from longitude 88* 98' went,, and running due north, waa copied from a map of Emanuel Bowen in 1775, at London. It mns due north firom the confluence of the rlveN. In other mapi the weitem limit of Upper Canada, li drawn as running from the mouth of the River Ohio in the Miniiiippi, until iti lource in Turtle Lake. The map wu here handed ta the Court, ^ '\ , ChitfJtutiee Setoe//.— >IIera b a line on 49* oflatitude. . Mr. Boudutte.-^Thai ii from Emanuel Bowen alio, and drawn by the CommiMioneri under the treaty of Utrecht, and the line coloured violet is the loutfaern limit of the teMtory of Hudion'e Bay, aecordhig to Emanuel Bowen'i map. 1 1 WILUAM BACHELOR COLTMAN, Eaavixn, Sworn. . Exatnined by the AUomeji^enerat, Mr. Cohmm*'—! am a magistrate of this district, anf ona of the Commisuoners of the Indian Tevrltoriei. I was last year in the Indian Territories, and passed through tha Lake of the Woods. My mind be« tng much oeaupied by the business of my mission^ I did not make any particular loeal observaUons,.but I always understood the Portage def Bats to be tiie most north-western point of the Lake of the Woods, and according to whatt I remarked', I conddier it so myself; but I had no opportunity of making exact observations on tiia qpot. The lUver Winnlpiff runs ont of the Laka of the Woods and into Lake Wlnnipic. ■'' ■'.. :(■ 11 I Jo Ml Inow MMtly tk« aUtanM btCwMii the two UkM, Uit I ibouia tMnk It li fron tlghty to m handroA iMgoct. Tht general ooorM of tiM Rivw Wlnnlplt, I ilMml4 eoniMer to be aortlHNreit, or eboat that coone t but i« epeeklng oTIt I btg to repcet that I hU lot Ume to mate ptrtieular obMrvetioM; but umnAlj I thiok no pert of that river eaa be lentik ofa line drawa Joe wtst Arom the moit nortb-weitem point of the Lake of the Woo4«, or if any, a very uaall portion. Vndottbtedly a line drawn froM that potni to the MlMinlppI, would leave tho whole of the Rlvf r WiaelpW) to the north-weit of It ; for a line $o drawn mvit be almoit due i9Uth.^l have knowitdge of a place ealled th$ DoUm, which I have pasted twice t it li a part of the River Wlnnlplo. I eaa- not tay with accuracy what distance the Dalles ^e from Portage dee Rats, for when travelling In the Indian Country, I wts alvrays accus- tomed to read, bat I Ibould think it to be about flvo or six leagues, In a course ranning north, with a little Inellnation t6 the West. [The Attomey-O«n«ral then asked Mi^. Coltman ** whether he wai " acquainted with the place where OWen Keveny was killed, or said to ** be Ulied?" to which Ma. StoabT objected, on the grttnnd that tb» place having a name, must be Identlied before any queMon octold be put relative to any occurrence which It might be supposed had take* place therCd— In notktog the objection his Honour the Chief Justice re- marked, that It could be of no eoniequcnee to put the question ; but al- though enough was known of the case to manifest that if the murder had been committed at all, It was committed at (or very near to,) the Dalles, " yet, (he added,) it Is neccMary for the Crown officers first to establish •• TBI lACT,"] Crou-vctmintd by Mf» Btuarl, Mr. G»f/imin.— I speak of the boundaiy lines, and other places I have mentioned In my examination In chief, Cmly according to my beilefi for, while travelling in tboM perts, I was generally etigaged in reading law- books, and I bad not an opportunity of making particnlar obserVa^oils on the localHte* of the River TVInntplcr— When I said the l^ortage des Rats formed the mk\ rtdrth-weitern point of the Lake of the Woods, I spoke from the stfme bellefi but a belief, likewise founded upon this el#- comstance— I had been told that it was the most north-western pdtnt, and when I passed it, I sikW nothing that COofd make me doubt tM edf- rectness of the information t had received ; I canoot say where H W«s that I was told thb;, nor whetlier before^ .or after, passing by It^ but I um» Informed whitfit In this Uppeir GMnktry, that Portage «N Rai» was the most north-western point of the Lake of the Woods,, tid that ffoti I w ' < 'I .. , llllltM > It ^anoe wuti|ken the boubdtry line betwMB theVnitod StatM uid Bri- iH^ Territory, agreeably to the treaty of 178V-I did not make any aa< tronom^ical observations, or any other, so u aoeorately to aseertain the .latitudes and longitudes, my only obiarvations were those of the eye In passUig. , ^r. fiifiiarfw— Is not Fojrt WUliav generf^ny reputed to be In the lirovins^A of Upper Canada p Mr. Cottmafi.r— Tes, Fort William is asnally eonsldered to be within the proeince of Upper Canada, and I andarstand it to be so^i— It is a vaajtter of piUtUc notoriety, thai writs issued by the magistrates of the !Westiern District of the province of Upper Cpnada, fte exeputed at Fort William. . £Mr. Solicitor-Pener^ submitted to t|ie Count that tUe evidence did pot apply to the case ; to which Mr. Stuart answered Uiat it was a fitet and therefore evidence, and that he was not bound to diew its application at present.— llie Solicitor-^enei^ in reply, contended that Mr. Stuart ought to Aew how he intended to apply evidence, which primA faeUif )iad no bearing on the cpe, before he should be Mttitjed to proceed iu such a course of examination-- and ^at tiiereKore \xe had thought it right to check it in its commencement.] (JhiefJuttiee Seweli—AM that Mr. Stuart has obtained is the nake^ iact that Fort William is, according to general repute, in Uppar Canar ,4a. Whether any or what use he may propose to inake of it we cannot say ; u a fket it is eviden(^. -=;f» v,?^'-r" '' , iV 6AMUEL GALE, EsavxmB, Sworn. Examined by the AiUmey-Qeneral. ^ Mr. Gak.-^l wu in the Indian Territory last summer, and I went down the Biver Winnipic. — ^I know Portage das Bats. The course of the Biver Winidpie from Portage dM lUts to Jake Winnipic is the same as before north of north-west i- m - OM^Juiiiee Setoell^NQrtb, tending a little to the west ? Mr. 6a(«.— Yes ; nevertheless, less to the west than to tha nor^-** .hut I should not like to speak positively, yet I belfeve that a line drawn from t|ie begpning of the lUver Winn|p{o, in Lake Winnlpie, would be to the north of the north-west, but as a lawyer I would no( say tha$ soeh a line was a north Una. jlMomey-OeiMraJ.— Are you, sir, acquainted v^ith the Budson's Bay Territory, and its line of seperaUon from the province of Upper Canada, ^yawporwyotlierwayP swm i.j 18 JVr. Caie.— I have never «een a i|»ap in which they weae correct! j ^Haeated, according to my idea. Altonuy^tMraL^By the treaty of Utrecht was not the boundary fiUblidied? ^^ Mr. Gofc.— I koowby thetreaty of Utrecht, no line Wfw given, nor any boundary fixed as to the Hudson'i Bay Territory, joath, or on th* Hide of Ujiper Canada. I Jiave examined that treaty foi the purpose of ascertaining. I d<> not Jcnow that any line has been drawn between ^e territories of Hod «a'a Bay and Canada, in pursuance to the treaty X)f Utrecht, and that '^eaty did notdesccihe a »>uthern boundary linf. ' ^ .. .. . CrMi-exomirte^l 6y JIfr. &t«ar/. . ■^- JKIt, Oaie.-r-I pei^aps do nq^ Icnow precisely wjiere the Biver ^in* ;iipic conunenees. I considered that I entered it at Portage des Rats, and I do not thinic that any part is more south. I fjbould not like to be positive, but I will mention why I think I am correct as to its course. I had a sm^ll cdjipapass ,before me, and I observed that the general .course of ^e Biver Winnipic is fks I h^vfi said ; /or a sbor,t distanjce, perhaps about ten or twelve leagues fornt tJbe Portage ^es lUts, the co^urse is mora northerly than afterwards. jf4*M.*^,^j^, BUBEBT FA^iLE, Suom, \ ft *■- Frotntned &y the Solieitor-GeneraL F«i//e.— -I am a' voyager— ^nd in 1816, I was in the jervico of th^ ^orth-:West Company. Towards the end of that year I left Lake In Fluie in a canoe to go towards Red River, an4 on the fourth or perhaps the fifth day, we met two canoes in the River Winnipic, in which were five Mit\f$ or Boit-bruli$f tojfne gentlemen and a prisoner of tbe name of Keveny, who was |iand*cuffed. Bf r> Cadotte, a clerk of t^e North' West Company, had the command of our canoe. We landed, as it ell u the people out of tbe other canoes, and M'Dpnell an4 Cadotte gave the prisoner In charge to us to convey to Lake la P}uie, — There w^rein the canoe with me one La Ppinte auj^ a guide called Joie, Fil$ de la Perdri:p Blanehet (soq of tbe whito PatrMgo,) who is an Indian, and we wen| away to return to Lake la Pluie, but Mr^ M'Poneli and Mr. Cadotte remained on shore.— Some days after (perhaps three,) we met two other canoes, belonging to the North>West Company, in the Lake of the Woods. I recognised Mr. Stuart, Mr. Thomson and Mr. Ferries, on ||oard of them. Mr. Stuart asked where wo were going, and I, answer^ %•< (f ll :il !il I' fciffl we were going to Lake la Plnie with a priioner. He said he tbould like to see hitn, and he saw him. Tbey convened together lereral times. Afterwards Mr. Thomson advised us to return, as there would he no canoes going down to Montreal. We, however, continued our route, and o» the same day we met a brigade of canoes belonging to the North- West Company, under the charge of one Joseph Paul. I request- ed Jos^, the Indian, to let us return with Paul, but he did not consent. We afterwards determined to go back with him, being in want of pro- visions— and as I did not know the way or route to go to ^ake la Piuie, seither La Poiote, nor the Indian, any more than La Pointe or myself. We followed Joseph Paul's brigade for a day, but on the following day we toit sight of it because tbey sailed, and our little canoe could not fol« low them, so we put ashore.— On the same evening that we landed, the Indian played with his gun, putting it to his shoulder and saying pmf^ fveff, and by his gestures I understood he wanted to kill Keveny. I do not know whether he cut any sticks, and asked ui to help him. t df not recollect that he, did. [Here Mr. Yanfelson objected that the Prisonct was not answerable for the conduct of the Indian, and that the course of examinatioii the Solicitor-General was pursuing, was not only irregular but one which, at tbe late sessions the Court had most decidedly rejected. The Chief Justice observed, that he thought the evidence, if admit- ted, would rather make for, than against, the Prisoner, but that at pre- sent he could not be affected by it, as he stood apparently unconnected with these people, and that if thaire wera any circumstances which con- neeted De Reinhard with them, the most regular, as well as the shortest tnd sui^t method was, as a tv^ttratumt to shew the connection before admitting evidence of oceurrenees in which, as the Prisoner was absent, he prmdfcune did not participate. 3Ir. Solicitor^eneral stated, that he had a chain of testimony to in- troduce, which would shew that there had existed a settled design to take away the life of Keveny, and that persons were employed in tbd execution of this design with whom he should afterwards associate tha Prisoner, and therefore with great deference he submitted to the Court that the shortest (and an equally regular,) method would be first to prove the alleged facts, and subsequently by connecting the Prisoner with the agents, shew that although he was not at the moment aotually present, yet in the eye of the law he was a participator. The Chief Justice repeated, as the impression on hl« mind, that as the circumstance how appeared, were it admitted to be evidence, it would he rather a service to the Prisoner than otherwise, as from the conduct •f the Indian, perhaps others might be suspected.— Then addressing the m ^. K 10 ti-'iiuM'i,%-it, SolieitofOtnerftl he added: On the point before uf xn are dearly of opinion that yon must oonneet the Priioner with this Indian before yori ean be permitted to addMce evidenee of trUMOtloai occurring when fas m* not prefCBt.] Examnation renmed by lAe MMtor-Geiural. : .V "'■'"?f ■ tailU.'^Vfo dept on ihore that night, and the next morning when I went to wake Mr. Keveny, he laid he wa« ill, and that he couid not g« then. He wanted hot water, and aslied mn to go and fetch hfaa seme water from the beach, and I went; but I did not bring him any because I then mw tliat the Indian and La Pointe had put off in the canoe into the stream. I called to them to come on shore, and La Pointe pushed tor land, and I embarked with them. We set otf for Bas de la Biviere, leaving the Prisoner below the Dalles, and on the same island where we liad encamped the night before. We went down the r>er intending ts go to Lake Winnipio, but a few days afterwards we turned back in or* der to purchase provisions from the Indians. I bought some from then both above and below the'.Oalles.— The Indian and La Pointe quarreled and fought together the day after we had left onr Prisoner^ Jose ran away into the woods, and La Pointe and I embarked again and ascend" ed the river with an intention of getting to Lake la Pluie. We ascend" ed it a certain distance, perhaps twelve arpentt ; but having lost our guide, and not knowing the way, we came to a determination to land on a small island and wait there till some canoes should pass. I do not re- collect the distance t)etween the island where we had left Keveny, and that where we stopped to wait for canoes; but the island where we waited for canoes, Is lower than that where we had left Keveny.— Some days after we were on the island, (perhaps five or four days,) we saw a canoe apprqiachiag, in which were Mr. Archy^ (Mr. Ano«XBAi.o M'LsiLAir,) Mr. De Reinfaard, (the present Prisoner,) Mr. Cadotte, Mr. Grant, and one named Jean Baptiste Desmarais ; with others whom I did not know.—- Mminville, the Boii^fuii, was there ; also a Canadi- an of the name pole, and La Pointe then fled into the wodds, hot Mr. Archy made him oome Imck and beat him also, saying, ** that It was not onr basiness." At that timto De Reinhard was in the canoe ; f cannot say that he did hear what passed, but I should thing he was near ebooglr to have heafd. I cann6t speak positively as to the distance; the canoe laid from the sboi^ i but had I been In ft, I truhk I should kave heard what paised. &/teifor>6enera{w—Whatdiifyoa nhdersiandby thewtArds " it was not' yonr business.** [Mr. Vallidi^ de St. Beat objected to the witneni being qaesttoned as to w&t he understood by tbe ^fordi, though as they were not proved to ba^e been uttered within bearing of the Prisoner, they could not af- fect him, let them' be what they might. To whidi the Solicitor-Gene* ral remarked,^ that it was in proof that he vtu iir a ^tuition to see, and therefore certainly to' bear, every thing.' Tbe CMef Jdstice observed, that it by no deans followed that be- cause be sauf eertain actions, that he must necessarily have Aeartf a con- versation ; and as the witness only said that perhaps he fftight have heard, it was surely as fair to suppose that perhaps he did'not. Mr. Solicitor^feneral submitted to the Court, that in a case like this it was imposrible ever to go farther — that the wftness proved the Prisoner was in a sithatidn wfaere he mi^ht ha^e hearcl, by saying all that with certainty can be said, namely, that bad fae himself been tbera he should have heard ; and that upon this evidence it was a question for the Jory to say, whether the Prisoner did or did not hear the conversation. ' Mr. Attorney-General called the attention of the Court to Faille*e extreme caution— remarking, t^at although he was so very elesnr as to events actoally taking place, yet not an inch, if it wa» a question of distance, or a mdment, if one of time, would he speak with any degree of certainty to ^— and submitted that the Crown had gone far enough to entitle It to put the question proposed by the Solicitor-General. Chief Justice Sewell said, that the Conrt were at present without any tub$tnUvm, upon whidi the question itself could be founded, or a rig^t ta put it insisted upon, for that at present no connection had been thewn to have existed between these people. Mr. Solicitor-General considered, that after what bad been shewn, the degree of connection formed a question for the Jury. The Chief .Tustioe allowed, that every thing that came before tfaa Jury, would undoubtedly be decided by them ; bat aaid^ the question at h 17 pt€8eat vai whether caongh bad been proved to juiUfy th* Court in adK initting certain circumstaoces to be brought before them. Had De ^leiii* bard been present, participating in the conversation, it would (hit Ho- nour remarlted,) have bieen anoUier tiling, but as yet It does n'>t appear in evidence, that lie heard what passed, or even knew these men : It was probabte that he did, but the Crown has not shewn it The Attorney-Oenerai submitted, that having proved that when tlus witness told Mr. M'Lellan that the cause of his quitting Joii, was his manifesting an intention to Icill Keveny, and also thilt M'Lellan*s reply, *' that it was not his business** was made when the Prisoner was in a situation that he nug&f have heard, the Crown had shewn enough to entitle the Solicitor-General, to pursue the course of examination he has proposed, as it was impossible absolutely to phive that a man heari a thing. The 8oiicltoi--G6heral proposing io ask the witness whether he told K'Lellan why they quarreled with the Indian, it was suggested by Mr. Justice Bowen, that he had better be permitted to relate his story in his own way, and the Court would then see whether any, and what part of it was evidence. — To this Mr. Stuart objected, except as he prov- ed Dc Reinhard was present, alleging that the Prisoner's counsel had Jt very serious duty to perform, and feeling its weight, they dbuM not consent to his relating any thing whith was not evidence— positive and undeniable evidence according to the strictest rules for its admission* The Chief Justice stated, that the indictment was one for murder, alleging also on the part of the Prisoner, M'LelltMi and others, a con* spiracy to commit it, as well as the actual murder. To sustain that al- legation, a participation by act, word, or deed, must be shewn ; bu^ (he continued,) you have done neither, and yet you wish to be permit- ted to go into a conversation In which, you do not evan assett that the Prisoner shared, which you do not prove that he even Aeard, and if he did, you bring no evidence to shew that he approted.] Solieitor-Oeneral.—li is no matter to me whether he ^pprovedf-^— Chief Jiutiu Sewell. — But to us it is, and a very great matter too, for we cannot allow you to pursue an examination upon a eonversation that the Prisoner did not share in, and which, till you prove he heard, you certainly dmuot be prepared to diew be approved. So/tet/or-Genero/.— Did you embark in Mr. Archy*s canoe ? FotOe.— Yes, I embarked, and La Pointe also, in Mr. Archy»s canoe. £S9/tet7or*Gensra/.— Then I am to understand that your Honours think 1 cannot question him as to the conversation on shore ? Chief Jwtiee Sewell.— Host cerUinly; that is my opinion, unlest you shew by some evidence that he beard it and approved of it. I do ! ! / iijj lif' 'I illi li; '|i: I ;f .;,ir 18 - ■"' ■■.<,'■■ " ' not know whether Mr. Juitiee Bowen cencuri with me or not^ but that is my opihioii. A Mr. Jutiiee Bowenr— An oplnibn in which I perfectly coincide. Toti eannot by this witness prove that be even heard the conversation ; and if you did you must go farther liefore I should consider it admissible ^vi> dence against the prisoner : You should demonstrate by some act of his that he approved as well as heard it. I cdnsider the question as totally beyond the rules of evidence. SolkUor-Qetieral.'—Thea I return to the general esamidation, aban* doning, as is my duty after your Honours* decision, any question relative to this convetsation. Did you perceive the Indian in the canoe ? r Faille. — ^Yes, I did perceive him. Before I embarked 1 saw that the Indian, that is to say, Joseph Fils de la Perdrix Blanche, was in Mr. Archy's canoe. We set off for Lake la Pluie, und the same day we met other canoes ; I do not know the hour exactly, but it was the same day — we had before sought for the island where we bad left Keveny, but without finding him. Some one belonging to our canoe (but it was not me) asked the people whether they knew any thing of Keveny, and they answered that he was a little further on above the Dalles. The distance between the ihland where we had left Keveny, and that where we found him, was, perhaps, five or six leagues. The island where we left him was below the Dalles^ and that where we found him was above the Dalles; Mr. Archy asked the Swan Biver people how Keveny man^^ aged to live, and some one, but I do not know who, answered '* he pur- chases when he can, tind sometimes he steals ;" he is above the Dalle*. > [Mr. Stuart objected to the questions as irregular ; he stated bis ob- jection was merely professional to the mode of examination ; and did not arise from any appreheusion of the consequences to the Prisoner. The Chief Justice concurred with Mr. Stuart, saying, why not, Mr; Solicitor, bring forward the unexceptionable part of your tesfimony ? Why introduce a Man the witness himself does ndt know who he was, and, therefore, ccnnot prove a connection between the Prisoner &nd the person speaking.] i. Ss/ietfofCrenera/.— What did De Reinhard say ; do you recolleti ? Faille,^-! do not recollect what De Reinhard said ; I do not recollect having heard De Reinhard say any thing in going to the island where we had lieft Keveiiy before meeting the Swan River canoes, but upon their answering that he was above the Dalles, he (De Reinhard) said— ** that he had taken him prisoner, and ,/ he was found again, he loeuH " not take eare o/himP I do not know whether he said it by way oli* threat or not. £«)/fet7or-6enera/.*>Repeat the words he made use of. •■». ' , ■ ■*'^ 'i 19 FatWe.— He said " II wat I who took him prisoner, md if he was found *♦ again, I will take care of htm." V [The Solicitoi^Oeneral enqalrlng If " he heard him say any thing else » and the witness answering that " he did not there,»» Mr. Stuart requested that answer might be taken down.] SoKeitor-GeneraL—How did you understand the words " that fu would " take care of him.** [Mr. Stuart, In objecting to the question, remarlced, that it was ex- . tremely unpleasant to be compelled by professional obligation, as well as by imperious duty to the Prisoner, so frequently to oppose the mode [pursued in the examination, but it could not be supposed, as counsel, they could sit still, and allow such a question to be put. Mr. Solicitor-General urged that words have force and meaning ao- >rding to the manner in which (hey are uttered ; and unless a witness irere permitted to explain what he understood, it would be impossible [when (as in the present instance) an equivocal expression way made use [of ever to attain the real meaning of the speaker.] ^' '< Mr. Jatfiee Bou^en.— The words made use of here, I think, suffici- tnlly explain themselves, *' I took him prisoner, and, if I find him, I vDilUake care of him:* w ?*«^iit»;il3#i ; -fttt Mr. Stuart. — 1 believe the words of the witness were *♦ Si on le rfi- \roui'oil (tu*il n*auroit pas soin,** which certainly bear a very diflerent Import to " J'tt/afce care q^ Aim.** ■ .1 -l ,.;-.*,..;.' /r orli ' Mr. Justiu Bowen.—l have taken it down, and F am eofiftdent ES ' " did say c^esl mot giii Pavoit pris prisownier, tt siotile retrouvait quHl en i '' anroU soin." " It was I who took him prisoner, and,- if he was found i*^ again, he would take tare of him." Mr. Stuart. -^119 said the other too, at^d I do wish that th9, wholf of h'rs answers may be taken just as he gives tbcm."^ y^' Solkitor-General.-^Jild you hear any othev person say A * i::/- tj. ?9 . * The reporter has, several times, upon his notes both the expres^oos attributed to the witness, although so different in their yeaning. On this and many other occasions during the exaniination of the VoyageurSf had Kriaretu been a Stenographer he would have found sufficient em- ployment for bis iieads and hands in attempting to follow the explanah tions of tliese witnesses ; given with a rapidity peculiar to themselves, and in a patois or jargon almost unintelligible, except to the Indian Trader!!. — Candour also demands that the reporter should admit, that his limited knowledge of the idiom of the French language, led him at the nioment, to affix rather a different import to that Which lie noni^ finds a correct translation of the expressions require. W. S. h\\ II it lii!; M\ '! m l! to [Mr. Stuart objected, and exprened aurpriw that a coarie w contra- ry to all prinoiplei of law, ihould have been raggetted by the Crown ofleere; and itUI more, that It ihould be renewed after the Court had on the prewi|t, ai well ai the former trial, decided lucb queationi to be inadmifisible. Mr. SoliQltor-Oeneral, after noticing that Mr. Stuart had objected to a question which he had not even heard, contended that they ought not to be bound so strictly as if the affair had taken place in the district, where proof would have been easily within reach ; but that every thing bearing on the justice of the case, might, and ought to be admitted ; and whilst the Crown were only desirous to exhibit the whole of t^e facts, he trusted he was pursuing, in the production of them, the method best ^alculftte^ to save the time of the Court. iKf T^% Chief Justice admitted that the case had its difficulties, but not any that could eall upon the Cpurt to invert the order of receiving tes* timofiy, by allowing evidence to be given of a conspiracy for a particu- lar purpose, before the fact itself was proved. Supposing for a moment that the evidence is adniissible, still (he said,) there was nothing- to dis" tingttish this case so as to justify an exemption from the general rule ; first prove a fact, and then strengthen it by corroborative testimony, u IQuoh as you can«] AUomty-Oeneraij^l wish on this point to put merely one question to the witness, which I think is not liable to objection. Did you hear De Beinhard say, after the death of Keveny, "that he had done bis business." FatMe.-T'iree, I did hear De Beinhard say so. ' [Mr. Stuart expressed his conviction that tiie Court would.not tak4 down the witnesses auswer, or permit the Attorney-General to put such "^ qikestioq, as it wap loring sight of the very first principles of the law on evidence for leading questions to be proposed on an examination in chief. '■ The Chief Justice stated the rules for the examination of witnesses, to be three : first, that on an examiqation in chief, leading questions are not to be put; second, on a cross-examination tKM restraint is not im- posed, because the witness is not supposed to be friendly ; a third rule ii Where yoor own is an unwilling witness and manifests an hostile disposi* '^on to the party who makes him a witness ; the examination in chief ii permitted to assume the shape of a cross^xamination ; but this (said his Honour with marked emphasis,) must be in consequence of a manifest Indii^KM'i^on on the part of the witness, amounting to an impracticabi- lity of obtaining, in the usual anode of examination, those facts which he ii in posseirion of, and which it is essential to the justice of the case should be elhibited in evidence. These being the rules there can be no (|iflid you he«r De Reinhard ' nothing else? Faille. — Not then ; but I reinember that after Keveny was dead ha said he had done his business.— Before we got on i|iore I heard Main- ville say, that if be were found he would Icill Keveny ; and that he would have bis hat and boots, and others sa}d they would take his clothes, his coat and shirt. De Reinhard said nothing, and 1 cannot tell ivhether he hearll the conversation. He was sitting in the canoe on the same bench with the gentlemen, and was as near as I was, and I heard it ; but I do not know whether De Reinhard heard or not. [Mr. Stuart begged that the words, ** I do not know whether De ^inhard heard or not," might be taken down ; to which the Solicitor- General replied that the witness was in his hands, and as they formed no part of an answer to any question put by him, he thought it complete- ly unnecessary, and was proceeding with the examination when Mr* ituart objected, remarking, that with all his respect for the Crown bench, they stood ip that Court upon equal terms, that he did not un- derstand dictation, nor would he submit to it, and he ihouglit he saw sogiething very hke it. He added, that he should be unworthy of the gown he was hpnoured with, if he admitted any thing lilce the conduct of which he complained— conduct, in his humble opinion, equally incom- patible with good manners and the accustomed practice of the Court. — rro these observations the Solicitor-General rejoined, with some warmth, that it was not the first time that intei;ruptions had been made whilst hb was putting questions, and to apply no harsher epithet to them, they were certainly very irregqlar, and being equally irreconcilable to good manners as to the practice of the Court ; he trusted his learned friends would abtain from them. — Mr. Stuart conceived that he had not devi- ated from the rules of politeness or of practice in inusting that the wit- ness' answer should be taken down entirely as he gave it.-~The Chief Justice said, the answer is taken down entirely ; I have taken every word of it.— 'Mf . Stuart begged pardon, saying, that was all he wanted.] Examination rtnuned by the SolieitdrrGenerttl. SSofict ouch a oaie. The Chief Justice remarked, that the general mie had been nevtr lo convict for murder or manslaughter, nnlesi the fact were proved, or (he body at least found ; this doctrine, he observed, had been supported tiy Hale and others, but as It Is sometimes impossible that this can b« lone, we must resort to secondary evidence of that which cannot bt proved by the more positive testimony, or in many caeen as well if the confession of the Prisoner, mentioned by Mr. Attor* ley-Oeneral In his opening, had been proved, as perhaps it would have iblished the ftiet which Mr. Stuart contends ought to be established, bd then this evidence would have been merely confirmatory ; but, as III the facts were in possession of the Crown officers, they had undoubt- ^edly selected according to their judgment Ihe course best calculated to [attain the ends of public justice, and the Cou had not the slightest wish to intorfere with it, or in the smallest deg ^e to intrench upon their rights as public prosecutor. It would merr / hint, that if consistent with their plan of conducting the prosecuti «, to prove the confession Srst, it might perhaps s%ve time. Relative to the objection Itself, the Court do not nt the present think it good. The coat Is produced as that which the deceased wore at the time the witness last saw him, rather than to prove any thing that took place after the alleged murder. What the subsequent evidence might be, it was not for the Court to an- ticipato, but at present theynonsidcred it to be perfectly competent evi- dence. ? lit' r.;i m If! il.i'^' m>U ! i' III 111 ill ! ■Hi m Mr. Stuarl remarked, that the eoarw Buggiested by bis Honour, ap- peared to him to be, not only the most advantageous, but iii reality the only regular one, though to the Prisoner's counsel, except For the sake of regularity, it was a matter of complete indiiTerence What course was adbpted, and therefore he should not press (as indeed after his Honour's decision it would be highly improper for him to attempt to pt'es^,) the bbjectioh he had submitted^] ■■ ' r ■ '.i.'Vi V'i farttmtntt/ton Resumed by Iht Seliciibr-CeiuraU I failli.-^l believe the cofiit which is nOw shewn to me to be Kevcny's •oat. It is the coiit which he used to wear when he travelled. The coat was in the little canoe in which the Prisoner, Mainville, and the Indian, came on shore. Mainville carried it od shore with the other elothes and things; It was he who took on shore all that was on board, and not Mr. De Reinhard. Mr. De Beinhard was a clerk, and clerks do not worki Mr; Keveny used to wear this coat when he was with me. Mainville pointed out to me in this coat the holes which he said were the cuts of a srtrord^ and the hole made by a musket bail. ' Mr, S/uar/.— What Mainville may have said certainly cannot be evidence against us. Indeed I do not see what effect this old coat is to have upon the case at all. v^s '^f •» :-• ; >; v^i /.• ~ /' i . ? SolieiiW'Qeiitrah'^l will state why this evidence is adduced, and it is offered simply for this reason, and the Jury will judge what weight it ought to have upon the case* Here is a coat which we prove he was in the habit of wearing when travelling— that he had it when this witness was with him — and it is found in the canoe in which the Prisoner arrives, without Keveny, though the last time Keveny was seen, it was in the company of the Prisoner. We simply prove the fact, the Jury will infer from it what they think proper. o*rf Etaminalion rtiumed by tke Solieitor-General, F«ti/e.— It was De Reinhard who divided tiie effects which were in the trunks; and Mainville took the coats and other tiiihgs which werfc not in the trunks of his own accord. [Id answer to a question from the Chief Jbstice, as to how Keven^ was dressed the day witness left him with De Bcinhird, Mainville and Jose, Faille said he was well dressed in a blue coat— De Reinhard for- bade me to speak of this bnsiness. When we went away from Lake Is Pluie, about a month and a half after, to go to Fort William, he totd me, if inei by the people of Lord Selkirk, not to speak of tile death df Keveny. He forbade me to say thftt he had killed Keveny.] /'/ inour, ap- ■ealHy the r the sake soiirse was Honour* s piraBiO the > ■ ^^^•"/■: B Kevcny'8 tiled. The e, and the h the other 18 on board, and clerks ewas with lichbe said ill. r cannot be d coat is to uced, and it lat weight it e he was in this witness )ner arrives, was in the e Jury will 4t% •^ U lich were ifa I which werfc Lw Keven^ lainville and einhard for* om LakeU lam, he tot4 I death df Chief Juttiee SeweK.— That he had ftiWctf Keveny, or qf il»e dfoth qf Keveny ? Foi/fc.— Of the death of Keveny, and of the matter that had I^ap- pened in the River AVinnipic. He Reinhard did not then come down with me frqm Lakp la Pluie. Solieiior-GeneraL—l submit to yoqr Honowrs that there is now evi- dence sufficient to entitle us to go into the conversation between th« witoesfl and M»Lellan, relative to the treatment experienced by witness for having prevented Joseph, Fils de la Perdrix Blanche, from -klUipS Keveny. The first piece of evidence to entitle us to do so is, that it took place within the bearing of the Prisoner ; and, if we do not do it now, we shall, after we have proved his confession, have to call this witness agaiq, as iq the confession he relates the conversation to have ^ken place in bis hearing. Mr. SKtiar/.— I must still object to such evidenpfr— as to the pre- tended confession, of which my learned friend spf a^s, it is the same, I suppose, as a pointed pf^per wbic^ I hold in my hand, a paper which it would add more to the, credit of persoqs of a certain ranic, if it had I never appeared, for I cannot refrain from saying, that I consider Its ;)ublication as disgraceful^ and cal9ulated only to prejudice the public fmind and endanger the safety of a fair and equitable trial. Solicilor'Gmeral. — I really mifst interifupt the learned gentleman. [\re ar^ qtaking no reference to a printed paper: when I spcnk of a cqn< fession, I speak ef a confession in the hand-writing of the Prisoner, and I may be permitted to remark on the subject of printed papers, or any desire to prejudice the pubi-7 mind, that my learned friend the Attor- (ley-Gen^^al most distinctly told the Jury, in his opening speech, that they were totally to dismiss from their m^nds eveify thing which they might have heard upon the subject. I therefore ti^ust that we shall t^ear no more on the subject of endeavours to prejudice the public, or of in- terrupting the regular and pure course of public justice. Mr. liHuart. — When I qiakc thes^ observations I do not apply them to the leytrncd Crown Ia\yyers. I could net, fdr I knoiv them to be in- capable of meriting such an accuKation, as an endeavour to pervert the pure stream of national justice ; but wheu I see in a printed publication,^ on a subject connected with the interests of the private prosecutor, that very confession which in the exercise of hia official duty as a magistrate he hud taken, I cannot refrain from saying that it is to be feared be has overlooked his duty, and has pubii<4ied it, for how else could it have got to the world ? and I am not to be restrained by any consideration fur the elevated rank of this magistrate, on the contrary, that ought to have operated as a security for the most accurate fulfilment of the duties ••I" t« y0^. 88 impowd upon him, partfealarly u from thvpeeallar delicacy of his «itu« •tioD, one would have imagined he. must have felt most anxious that no part of his conduct should be exposed to the shadow of suspicion ; but the motives for such a publication are too glaring to he misunderstood ; and, I repeat, that it would have been more consistent with the distin* guished rank of the magistrate if it had never appeared. As to the con- versation it cannot be evidence ; when this pretended confession is ofibred we shall have an opportuni^ of meeting it, and, Uierefore, till then I refraiA from taking notice of it. '' ' ''■ ' Examination returned by the SoliciiarrGeneraL 'I: i iSolieUor-Oeneral. — What did Mainville say at the time ybti met the Swan River people ? Foi//e.— Mainville said — ' " Mr. S I had not touched him myself, an^ I do not know ihai La Pointe and I (quarreled as to who had beat Isan, or that La Pointe said it was I who beat him^ and that it was .oa that account that Mr. Archy had struck me. Ttte question was asked what had been done with the prisoner, and I ai^swered that he had been left on ano^er island. Thereupon Mr. Archy said " ther^ *Vwas no occasion to beat the Indian or to have abandoned the prisQ< ner,** and hfi beat us with the paddle. Mr. M'Lellan enquired if I could poip^ out the island where we had l^Ct Keveny, and I answered I could, and I embarked in the canoe wit)|i Mr. Archy to go there. A(> terwards we met other canoes belonging to tl^e peop^^ of Swan Biver, and from them we learnt that Mr. Keveny was above the Palles, and we went up and found him there. Mr. Keveny was then dressed very 'neatly, like a gentleman, and he had not the clothes on which have been shewn to D\e here, nor those which he wore when we left him on the island, but was in yery good trim, and dressed like a gentleman ; like a very well-dressed gentleman. JM(r. Archy said Keveny could n^t embark with him, because the canoe was too much loaded, having ted men and five gentleinen, making fifteen in all. The ^s\ial complemen^t for such a canqe is ten, thut is to say, eight working men and two gen. tlemen. Mr. Grant was there, and Mr. Keveny did not appear to he angry with htm. He was satisfied, I believe ; but he spoke k^ Ei^glish, \ and I do not understand EngUshT-but he did not seem to be vexe^. When we went away, I left Keveny with De Reinhard, Mainville, an,d Joseph Fils de la Perdrix Blanche; bMt I cannot tell whether Keveny embarked with them. I am quite sure that I heard two guns go off thut evening. We were on shore, and encamped, when 1 heard both the reports ; one gim was fired at a bustard, and the other I heard before we had encamped, and the people might have heard it as well as me. In \\uA quarter it is usual to hear t^e reports of guns, and \vhere there are Indians and people, Keyeny onee tried to, overturn the canoe, whep we Vii'ned be\ck to go to Bas de la Riviere, and if he had succeeded, we fhould have been drowned. I have heard that Mainville has since ab- sconded; find I ilotlies in which he travelled. The last gait which I heard go off virav ed at a bustard, as Mainville told me, and there was a bustard which hey had killed and thrown into the c&noe. I am sure of it, beoanse I plucked it myself. Tfie next day we look our departure for Lake ti iuie. I afterwards saw De Reinhard a prisoner at the Fort of Lake Pluie. It was the people ef Lord Selkirk who were In iieai'ch of me nd La Poihte. Both De Meurons and Canadians came after us, hut ey had ho muskets. Tliere wefet perhaps, r>ve or six bf them, and I as taken prisoner and La Potntc also. Captain D'OrsonNens appbared be master, and he sent ui to Fort WilHAm. Cbptain Matthey und mother received our depositions, and the nejct motrning we swore to em before Lord Selkirk. After I had made my deposition, I was Iterfectly at liberty. When I wertt up, Fort WtlliAm was in possession the North-West Company ; but wh^ti I caaie there, after being sent ither by Captain D'Orsonheiis, I found it in thie possession of Lord Ikirk's people. I did not enter into my lord's service, but I fvas made work seven or eight days, in order t(i go a wintiering. I am not iil le service Of toy Loird Selkirk, but I worked a few days in the canoes d bateaux* I would not go to Montreal, without l>eing paid the ar- rs due to me by the North- West Compahy, and they wbfe paid me \ ceived them by A letter. .They promised to pay me for the time I uld remain here, and to keep me, and to make me a recompense. }frr i .v-\; Saturday, 23d May, 18l8. PRESENt AS VESTERDAV. The Jury were cailei, and being present V JEAN BAPTISTE LA POINTE, Sworn. Examined by the JUonity-Generat. [As La Pointe's testimony Was to the samb facts throughout as Faille's, it is not thought nectessary to do more than exhibit any addi- tional circumstances that were brought foi-ward, and any variations in jis account of the same facts. His detail of occurrences up to losing ttght of Paul's brigade was almost verbatim the saule as Faille's. Hf [hen proceeds.] liii ^m m 11 % • I : n ■ Xa Pointer-ln the evening we landed on an Iilaxid, and encamped for the night. It blew too hard, and the Indian would not proceed, being aware of the danger. That evening tha Indian cut two atak^t, and wanted ru to talce them malcing figni at the lame time with his gun that he wished to Icill Mr. Keveny, faying in French that ** Mr. M*Do« ** nell will eay it ia good," shewing with his gun as if he would kill lum. The next morning, perceiving that the Indian was very much vexed 4 and angry with us, because we had not approved of it, and that he wanted to leave us, we w6re desirous of going away. We l^it Keveny oa an island below the Dalles because he was too ill. [Mr. Yalliere requested the Court to talce that answer.] La PoiiUe. — After leaving Keveny we proceeded down the River, but we ascended again to an Indian village above the Dalles, Jose say- ing that he had lost his way, and did not Icnow the route. We were very angry and disflatisfiecl, having but a very small quantity of provi. lions. The Indian was angry, and in his rage he broke the canoe, and was forced to buy another with a blanket of Keveny's, and his kettle, and having got a bircb*bark map from the Indians, we continued our route back from the River Winnipic. On the way we had a quarrel for he would not let us take our meals nor boil our kettle. We were then on shore at the place vailed Portage des,Esclaves (Slave Portage.) We fought together, and the Indian run away into the woods, and we left that place without him. We went up the river to find the place | where we had left Keveny ; but, fearing to lose ourselves, we made for J the shore, and landed on an island to wait the arrival of canoes. The fifth day we saw a canoe coming up from Ras de la Riviere ; and id that canoe were De Reinhard, Mr. Archy, Grant, Cadotte, and some Bois-bruUs ; Mainville and Desmarais were there among the Bois^rulei; The Indian Joso was there, one named Le Yasseur, and another called j little Joseph Lorrain. They asked us " what we were doing there?" | and *' what we had done with thfe Indian ?'* (they were then in their canoe.) It was Cadotte who asked this, and ** why we had beaten the j " Indian P" I answered him that we had a quarrel, and that the Indian wanted to shoot Keveny. Cadotte replied, you were told to do nothing and that he was your guide. I said to him, " Mr. Cadotte, you did ** not tell us to leave, or to kill Keveny.*' Cadotte then answered, I ** that was not your concern ; you are rascals and blasted blackguard!, ** and yon both deserve a threshing ; you have nothing to do with the ** Indian.*' It was Mr. Cadotte who said this, and thereupon Mr. Archy landed quite in a rage, and he first beat HubeK Faille. I tried | to get away, but he caught me and beat me too. jifr. Fa//tere de St. RmA— I do not perceive that this can be aay I Si evVitonce agitDst tbe PriMntr, nor do I conceive that it is ei all regular ^o eater npon an Invest^atlott of circumktanees, which, although not direct evidence against the Prisoner, may have a tendency to impreaa the Diinds of the Jury nnravourtubly. JHomeif-Otneral."! khall immediately connect the Prisoner with all thele of the Swan River caiioes, whom we met below the Dalles under ^he conduct of Ducharme the guide, that he would be found there, and tre consequently repaired thither. Some body asked, but I cannot tell k'lio, '* how does he do to live," and they answered, (that is to say, the iwan River people,) ** soniic times he steals, and some times he porcha- [:s," and the Meti/s of our canoe replied, *' he shall not steal long *." but do not know whether Do Reinhard was near enough to hear it.*« 'hen we found him again, Mr. Grant shook hands with Keveny and Ehey conversed together. Chief Jut lice i^etre//.— Did Mr. Keveny and the gentlemen dine to» feether? La Poinie. — No, they did not eat together. 1-*; Examination resumed by the Attorney-General, La Potn/c— We went to fetch Keveny's baggage— they put it oil »ard of Mr. Arcby's large canoe; not all of it, bat a good part. We remained two hours on shere ; ttid I, and t}| the others, excepting Ke> veny, De Reinhard, Mainville, and Joseph t||e Indian, embarked with Mr. Archy, and we went away leaving the three with Kevcny. Chief Juitke 5ewe//d— Why did you leave these men ? A* La Potn/e^-^They stopped behind to follow in a small canoe, wbicii tb« Indian women were about gumming« .n ^. ,.>ji^» mv il! M iilni mm Aum .- u Examination resumed by the Attorney-General. ' y La Pointe^-~-We continued to go on before and lost sight of the oih ers. We proceeded afterwards for three leagues or thereabouts, when we disembarked and encamped for the night. Before arriving there, and while we were on the water, we beard the report of a gun. We had proceeded about half way, and one of the Bot4*&ru/ei in the canoe thus said, ** did you hear that report of a gun ? the man is killed." - Chief Justice Sietoe//.>~Did you hear it or the others? La Po.'.;/e.— When we had landed I heard the report of a gun. I did not hear the first report when the canoe was on the water, but the otbert heard it ; and when I said before that we had heard the report of a gun upon the water, I never meant to say that I had heard it myself, but that the people in the canoe said that they bad heard it. I heard but one report ; Mainville heard two. When Mainville was about coming on shore, some bustards flew past, and Mainville fired his gun and killed one of them. I was then on shore, perhaps I had been an hour on shore before I saw the canoe, but I saw the canoe at the time of the second report. It was perhaps an hour, more or less, between the two reports j which I heard. It was Mainville who killed the bustard, and I saw it. Just as the canoe arrived, some one on shore asked " what they bad j done with Keveny?" and De Reinhard, who was then in the canoe, answered, ** be is well hidden, hewo'nt come back again.*' While 1 1 %va8 conversing with Mainville, Reinhard landed, and the whole party mixed together, and Reinhard was amongst them. One of the Bois" brules a»ked Mainville whether Mr< Keveny had made a great deal of resistance when be was killed. The party were then round a fire and J>e Reinhard was nearer to Mainville than I was< I oannot tell the distance exactly ; perhaps he was as near as you are to me, or from the witness box to the Judges' Bench, but De Reinhard was certainly nearer to Mainville than I wa« myself. Mainville replied to the qaes* tion of the Bois*brules, that Mr. Keveny said he was ill and desired (o go on shore ; and that he had been put on shore, and on re*embarkiog De Reinhard had stabbed bim in the back with a dagger or sword, that Keveny was crushed and doubled himself down upon the stroke, awl i-A^'-V 35 that De Reinhard attempting to give him a fecon.l cut with the iword, Mr. Keveny, In rising, lelted hold of 0e RelnhardN dagger or word with his hand, and that thereupon De Reinhard called to MalnTlIIe to Iclll him, and that Malnvllle then fired his gun, and sent the hall through bis neck, and that Keveny fell upon the canoe; and Mainvlile added, that if ho had not been quick in firing, Keveny would still have had strength enou{,h to wrest the dagger or sword from De Reinhard. Chief Justice SeioeU.—^hBii did De Reinhard say when Malnvllle [related this? La Po»n/e.--He said nothing, but conversed with the others ; but I do not know what he said. Chitf Jwtiee Sfetcc//.— Did Malnvllle speak as in common P I • La Po* erve whether it w&s bloody or not. I saw Keveny's things, and Mr. )e Reinhard began to divide the baggage and the clothe!*. I saw the lings in the canoe all bloody. Malnvllle and the Indian brought the iings on shore. They were fiill of blood and I saw them washed the i;'ie evening by them. There was a great deal of blood in the eanoe kt the bottom; and certainly more than the blood of a bustard. Ten bustards would not have given so much blood. I do not believe that |lhe bustard was ever in the canoe, for I caw it fell in the water, and believe, it was thrown on shore, without having been put in the canoe lt all. Pe Reinhard divided Keveny's things and I saw it, When he l>egun he said, " as it was I who killed him, I will have the first choice f* of his things ; and as Mainville was with me, and assisted me In kil- '** ling him, he shal} have more than the others.'* There were two small boxes of papery one was a round box covered with skin, and a small thing or writing-box (uneioite pour ierire.) [Witness here ex* plained that ** la botle pour icrire^^ was similar to a portable writing lefik which Mr. Justice Bowen had before h{m.] I saw some money In the writing box, and it was Mainville who had the money. After >e Reinhard had opened the boxes he began himself to divide the things. [e put the best in a box for himself, but when the Bois-brulet saw that >e Reinhard wanted to take possession of ihp. best things, the fine shirts ind so on, they would not take any thing, excepting Mainville, who got some of the clothes. De Reinhard said, *' I will give you cotton ^' ihirts when we get to Red River,'' and that vexed them. The next I liil day De RcinbartI laid the things must be left here, and they can be got •gain on our return. J mw the thingi coneealed (euehf) by a party o( Boit^ruUi belonging to the lame canoe as we. I do not Icnow wht- iber De Beinbard was with them then or not ; but I know that D« lleinbard gave orders to conceal them. I received orders *' qot to talk <• of this." ' . , ./: JiTr. Juitief Jlotfen.— Who was it gave you tbece orders? ,j Im Potn/c— It was Mr. Pe Keinhard ; b« told me " not to speak " about it," and I aslced about what, and De Beinhard answered '' of " the murder of Mr. Keveny.'* He said lilcewise, that *' if it wers " tallced of, it would not be biin, but we (the others) who would bt " punished for it.'f Chief Jfuttiee Seuell.-^Arti you sure, quite sure, that it was De Beinhard who said those words, and not Mainvillc, ur any ether per* son? La Potn/e.— I am quite sure that it was De Reinhard said it ; and Mainville said, that ** if I spo|ke of this murder I should be bung,*' and am quite sure of that. '-v * ,. .*.<•,.,;. .;,{ /. ., r The eoat was hen produced. 'r<^'.- ^ttomey-OeTural.-'llwe you seen this coat before ? Za Potn/e.— Yes. I have seen a coat lilia that, of the same colour and of the same kind of cloth, but newer, and certainly a little longer. I v'sceived it in exo^ <'nge from Mainville for a capoi. I took it becanfe I was going to wiru> r at Lake la Pluie, and I had nothing but a shirt, m All my elotbes had been feft i.. Bas de la Biviere in Mr. Cadotte*s ca* Qoe, at the time that Mr. Keveny was given to me in charge. . Chkf J'tatiet 5fve)/.— Did yon give that coat to any other person? j^ PeJnie.-— Yes , I parted wit|i it to Hubert Faille. JBxamtno/jon resumedf by the ^Uorney»General. ^ 11 XjU Pointe.— At Lake la Pluie I had no things, nor any clothe*, none at all but only one shirt ; I was almost naked. When De Beinhard, 3Iainville, and Joseph, arrived, I saw a bloody coat in the canoe, which I had before seen upon Keveny, at the period be was under our charge. I recollect it very well, and t saw there were holes in it in the neck and in the back ; one large one, and one smaller one. t can certainly take my oath that the coat I saw in the canoe was Mr. Keveny's eoat. I did not take the coat ip my bands, but I saw it was pierced by > b^li. ■ / ^ 37 Crot$-tx^minalion coudacted by Mr. VaUiere dt St. Riaf, la Pointe.'-'li was below the Dalles that Mr. M'Dopell met with /Keveny. He did not appear to liave any animosity against him ; but, on the contrnry, he causfU his irons to be (alcen ofT. Mr. M'Donell belongs to the North>Wcst Company ; he is a partner at I have under- * ^ stood. Thry ate togi thcr, and iie gave him two bottles of liquor, and some fmoll biscuit. Mr. Keveny rspolte Ei^glish, and I never heard him I say any thing in French. Jok9 Fiis dc Perdrix Bjanche did not speak [rrench; he spoke a Tew words, he could utter a few words, but I do [not know whetjier he even understood them Jiimself. I do not speak ' the Indian lan^uuge, and the IqdlRn could speak but a very few French Mords, yet the signs which he made at the same time, made him to bf |underi>toot). Faille once quarreled with Keveny. Keveny wanted to I' istrike him. It was at the Porlagp des Rats, or at the Portage dei )ois, and about the timjc we met Mr. 1 faoraron, who advified us to turn back. Mr. Keveny did not choo»e we fhnuld turn back, and he endea* roured to upset the canoe. I 'was afraid that he would have upset it. !have no knowledge that Faille ever was about assisting Joseph with a tuke, or in any other way to kill Keveny, nor that any other man ever et about cutting a stake, and went with it to the door of Kevcoy's tent viih the Indian, in order to kill him if Joseph missed him. )y^c left no trms with Keveny ; we bud none ourselves; excepting Joseph, who ha^ gun. He had no fire. It was upon an islind that we left him, and he [had no canoe, nor any other means of leaving the island, but by swim- Iming, (the mainland was not far off,) or by making a small raft, or by [Waiting for n canoe going by to take him off. The reason why we left Keveny on the island was because we bad no more provisions than a f kettle (chaudien) or two ; and, also, that we might go and get soma I provisions from the brigade, and because the Indian did not know the I way, and would^not take him on board. Keveny had no axe nor any thiug to cut wood wit)). 1 did not know at the time whether he had I materials for striking fire or not. IFhen the Indian Joseph went away from ufl, that is after we had left Keveny, he had been for a long time I in the habit of maltreating me ; be struck me with the paddles. He |cept possession of the bar of the canoe, and was eating while we were paddling, and could not eat ; and the next day being at Portage des Esclavei, )ie would not let us take our meals, he would not give ua any thing for breakfast. We landed our things, and he took his gun and pointed it at me, but Faille snatched it from him. The gun had no flint ; I am quite convinced that the ^un had no flmt He left us ther«, m I, ^ i i i • I "»i and I did itot FCC liim ngain, till after I wni bcat«n by Mr. Archy, when he liad a S'cotcli cloak abciut him. At that time hia hand vraa wounded. The annweri which I gave to tbo people of Mr. Archy'i canoe were given before Mr. Arcby beat me, and before I wns aware that .foocph vran In the canoe. I knid I had fled from the Indian after I had fought with him. I cannot rrcollcct exactly all that was said ; I was then very much frightened, and rcnrcely knew what I wan about, but I was nut mad, although I caid just now that I was hal^mad when we were upon the Uland. We were, I believe, fifteen in number in the canoe when we left the island. I did not dispute with Faille when I saw tho^ndian faying that it was him and not me that had beaten him ; Faille said that it was me, and that was true. I did not accuse Faille of having beaten Iitm. Mr. Archy when he flogged me did not say why he struck me, bat the same day in the canoe, he told me it was because the Indian should see it ; and I said to him, that he ought not tp have flogged so hard. In the canoe the people sometimes changed seats. The day that I embarked with Mr. Archy, there was sometimes one man, and at other times two, between me and the gentlemen. I do not recollect whether I was next the steersman or near the steersman. Lorraln paddled behind the gentlemen, and there were no other gentlemen on board but Mr. Archy, Mr. Grant, Cadotte, and De Reinbard, and they did not paddle, nor did the Indian Jose. I do not know, for certain, that all the people in the canoe beard me when I related that the In* dian wanted to kill Ke.-eny. I believe that the canoe. was under way at the time, but if it hud been lying still they would have heard me. It was the same evening, I believe, that I recounted the occurrence between the Indian and Keveny. I never said, nor I never heard Faille fay, that he and another repaired with the Indian Joseph to the en< tranqe of Keveny's tent with stakes to finii«h him, or to kill him, if the Indian missed him ; but I said that the Indian had cut stakes, and that he brought them to us, shewing us with his gun, and by his signs, giving ua to understand that if he missed his aim, we were t5 do it with the stakes. I do not remember having said, nor having heard Faille say, that the reason why Keveny had not been killed was because the Indian had done nothing. Faille did not say, to my knowledge, and certainly not before me, *' if we had not besought La Pointe, Keveny would *' have been killed ; La Pointe would have struck the Mow, his heart «'* was black enough to do it ;" and, I am also certain, that he never uttered in my presence any other words to the same effect, as for as I hieiard. I do not know whether the others who were in the canoe heard Mr. Grant, when he said to me, " come, come ; try to forbid him now, "you shall be well received ; I would make you swalloMtr what I have ■ •» '• got iii my gun. He wld it in the oanoe, in the place where he tat. Mr. Juttia Beweti.— Wm tlie canoe then under way P La Poin/«.— I do not recollect whetlier the canoe waa at the time lying (till, or whether it wa« going on. Lo VuMeur, Mainville, •n4 pome other Boit-brulci ppolce quite loud, properly to, oriiilling Keveny, and all in the canoe made a Jest of it, and thry ipoke Icud, properly loud {haul eommt ilfaul). It was in tbo'canoo, berure wo came to th« island where we found Keveny, that De Reinburd ipoke of iiilling Ke* veny, and he mid it in the aamc manner as ho generally spoke, not asid« or secretly, but aloud, and the words were, '* I will take good care of ** him. it is I who will kill bim.*> It was at the time that the Boii- ^brules were expressing themselves about killing Keveny, and dividing this clothes and things, that Dc Beinhard said this. The last time I saw [Mr. Keveny, and that was ait the period when we left him with D« Reinhard, Mainville, and Joseph, he was better dressed than I had before seen him. The clothes which were in the canoe were not the jaame as those which he had on when we left liim, because Mainville told It he had changed his dross before he embarked. Jflr. Vailiere de St. R£a!. — The Court, I hope, are not taking down |Lh« latter part of this answer, it forms no part of an answer to any |uestion I have put to him. Chief Justice Sewell. — I most certainly am, Mr. Talllere, and feel fmyself bound to do so. Mr. TalUcre.—l must then, with great submission to the Courti [object to its being taken ; it is at the best but mere hearsay evidence. SolUitor-General.-^l must submit to the Court that there cannot be a doubt, but that the whole of a witness's answer should be taken. Ho is a«ked a question, the object of which cannot for a moment be con> [eealed ; the witness, in the former part of his answer, appears to meet the wishes of my learned friend», but wlien he offers to account for tiiia apparent weakening of the evidenc(u)n the part of the Crown, then be is to be iiumediately stopped. I trun that the Court, thinking us fully entitled to the ans^ver aa tlic witness givcji it, will insert it entire on their note& (Mr. Valiiere de St. Real urged that the mild sph-tt of British law tjonsideriog the strength of the Crown in its character of public prose- cutor, is inclioeil to extend, rather than limit, t) the priwner the exer- cise of every privilege to which he is by the laws entitled— he contended that it was the undoubted right of particularly the defendant to have the entire answer taken down, because the witness adduced with all that bias on his mind, which the freedom allowed in cross-examination pre- supposes him to have towards the party bringing him before the Court, 11 1^ ill h»A tiiinself benefited the priRoner by his ieitiifldny ; bat, ff, under i tro98-examination, it wan permitted to a witness to irttroduee, in annver to a direct question, any extraneous oboervation of bis own, or, as in the present instance, mere hearsay evidence, of what sonto other person bad told him, and the officers of the Crown to iniiist on talking it down, we are then so completely at the m'eroy of the malice or ignorance of (either a wicked or an uniiffoi'ined witness, that the great and extensivt benefits, wfiich are the usual consequences of A cross^xamiination are tone away, and the freedom allowed in them is only likely to be a fruitful source of dange^ to the unfortunate prisoner.] Mr. Juitke Botren.— If no evidence had been oflered to prove a con< Section between these two persons', I should certainly concur with you in Opinion, Mr. Valli^re ; but, unfortunately, evidence has been intro« duced, which^ most clearly, and distinctly, conniects De Reinbard with Mainville, and, till that evidence is rebutted, I certainly think the Crown are entitled to have inserted on our notes any proofs that may be extracted from a witness at any period of his examination, of acts done by either, in the presence of the other. As the case viands, it hat arrived at this point as I take it. A coat is produced, it is identified as having been in the canoe in which Mainville, De Remhard, and Jose, the three persons with whom the deceased ivas in company the very last time he was seeri, arrived a few hours after the Witnet«es bad so left him ta their company { it is sworn to as being a coat belonging to Keve* Dy, and, upon exaimination, it proves to be pierced in two places, so as to have a corresponding appearance to that which, froita the manner the indictnient alleges that Keveny met bis death, it might have been expected the coat he then wore would have presented. To remove the effect, or weaken (he impressfon, oftlus secondary evidence, corrobora- ted by other parts of the testidiony, yon ask him how Mr. Keveny was dressed at the tiiAe be left him, and be answers that he was habited iilce t gentleman (moMteur) and better dressed than the witness had ever seen bim before ; there appears to be a doubt thrown upon this testimony, by the difference between the coat produced, and that which we might, front the former part of bis answer, have expected to have had exhibited ; but explaining what, if left unexplained, might seem to be an impeach- ment of his own evidence, he says. " Mainville told me that before •< embarking he changed his dress;" end, I clearly think that a connec* tion at present being in ev^idenoe between Mainville and De Reinhard, that what Mainville said may be adduced in evidence. Mr. Valliire de St. R^o/ir— Not, I hope, io make him attsvlrerable for what it is not tttempted to be proved was said in his hearing. m¥ 41 (Mr. Justice Bowen said— in my opinion it U adminible evidence U go to the Jury, and the Chief Justice exprewing his concurrence — ] The eross-txatnination was ruumed bjf Mr. Vailiire rfe St, Rial La Poinfe.— When De Reinhard divided Keveny's things, and said that he wonid have the choice because he had killed him, all the others were present, as I believe, excepting Mr. Archy (M»Lellan.) In going to Lake la Pluie, it was on the right hand (or, reckon! ig by the banks, the south bank) of the River Winnipic, where I saw Mr. Keveny for the last time. I was sent with Fail!* by Captain D'Orsonnens to Fort William. Since the last trial I have conversed with several people, who told me to tell the truth, and even to take the sacrament, and to go to confcusion before giving my testimony here. 1 am not engaged in the i>ervice of the Hudson's Bay Company, nor of Lord Selkirk. I was served with a writ by Mr. Coltman at Bed River to come down, and he admonished me to speak the truth. It is Mr. Gauvin, the She- i riff's officer of Montreal, who pays for our board at present, I believe. 1 My Lord Selkirk told me, that when the Court and all was over, I [should be well paid. He gave me a little money when I was in tha lorih. I received no more from the North-West Company, during the six mouths I was with them, than twenty-five dollars, but I expect to j;et the remainder from them. Mr. Forrest, Lord Selkirk^s agent, has igiven me sums of five dollars at different times ; perhaps thirty dollars, I perhaps forty, I cannot say exactly ; but I have not received more than ' fifty dollars from him. I reside at present at I'Assomption. -''; . ' LOUIS NOLIN, Sicorn. - n^v i*^i%i^i^ Examined by the SolicitOT'Generat. Mr. Notin.'^l was in the Indian Country in 1816, and before getw ting to Lake la Piuie, I heard the Indians speak of a murder committed at the River Winnrpic, but at that time I did not know upon whom. After I received this information, I continued my route towards Lake la PluiCi and met with a canoe in which were Mr. Dease, La Pointe, and three or four others ; and from them I learnt that a murder had been committed. Afterwards I continued my route, and arrived in the, beginning of the month of October at Lake la Pluie. I had received orders from Captain D'Orsonnens to desire De Reinhard who was at Lake la Pluie to wait Captain D'Orsonnens* arrival ; but I had no or* ders to detain him by force, or to take him. prisoner, but to endeavour t6 dbtatn information of wbat had occurred at "ReA River. On my bn rival at Lake la Pluie, I slept that evening with two freempii, and frooi there, on the next day, I went to the Fort. I entered Mr. Sayer'g room- Mr. Alexander M*Dena1d went into De Reinhard's room, and in a fhort time after, all the five, that is to ray, myself, Sayer, Rousein, M'Donald, and another, entered another apartnacnt. De' Reinhard had in his hand a note or letter, and, walking in (he room, said that he was much surprised that Captain D'Orsonnens wanted him to give informa* tion about Red River. Csfptaiti D'Orsonnens arrived three or four hours afterwards, and he walked with De Reinhard out of doors. I fbllowe-'I them, and walked with them. I did not hear the beginning of their conversation ; they were some time together before I went to join them. " / *, ;■. . Mr. J'usttce Hitctn. — Hii you yourself, or did you hear any other Berson make any promises or threats ? • Jtfr. AloKn.'— No your Lordship. " ' Solicit or'Gensral. — Refate the conversation. Chief Justice Stwell. — Stop, if you please, 31 r. So1icitor*General ; we ^ust know the coinmencement of thisconversation. Mr. Stuarl. — Will the Court just allow me to a-k the object of pro* ^cing this conversation. Is it to prove a confession P Solidlor'General. — Tes; it is. ® ' fr - ' ■ ■ Mr. S/acTf/. — ^Then to this course of the CroWn lawyers I most cer tainly object, it is an attempt to call a witness to corroborate what not proved. The fact of the death, accnrJing to our judjgment, is not proved ; but, waving that for' the present, it is now proposed to support, by way of a corroborating testimony, a fact to which no evidence what* ever, that can be I'eceived for a moment, has been ever offered. What may be the result of such a course? why, that when Captain D'Orson< nens is called, his evidence may prove, and (if not wrongly instructed) it will prove that every thing connected with this pretended confession is totally inadmissible. If I am not wrongly instructed we shall prove It to result from a fear amounting to absolute terror, produced' by a ieries of unheard' of agressions and violence, such' as never was before seen on this continent, and sack' as, for the sake of humanity, it is to be hoped will never again disgrace it.— ^l should be Wasting the time of the Court to attempt to ertablish the inadmissibility of a confession obtained tindnr such ciVcurastiniees,— circumstances, which in their nature are without a parallel, and of a description, thdt to avoid their effects, tte i&ust innocent man might be inducted to confess, or even accuse himself fef crime. The authorities which prohibit the admission of a confesrion Under even th« slightest expectation of reward, or appreheBfiioo of pun- ishment are as nupfierous as they are familiar to every lawyer.— Jtfr. Stuart taking a book in his hand, ani optning it- — r-^ . "l"',, ■ Chief Justice Seice/^— 'I do not, Mr. Stuart, see any necessity for your troubling yourself to adduce authorities, for if you can shew that the confession was improperly obtained, doubtless it cannot be received as evidence; but unless we have the commencement of the conversation which prefaced the confession, we are in the dark as to the circumstances which induced it. Captain IVOrsonnens, with whom it commenced, is here, why not examine him, and we shall then immediately and satis* factorily decide whether it can be permitted to go to the tfury. [The Attorney-General etated, that in laying the ease before the Court he intended to produce the witnesses in the order of time in which /events to whiph they had to testify took place, but to save the necessity of catling the same person twice, to let him testify at once to all he knows. This witness (Nolin) first saw the Prisoner, therefore he ha^ better examine him, because it was consistent with the order of time in which the circumstances occurred,] Chief Jxutiu Sewell. — To whom V^b this confession mede tljat you are I desirous of proving? to Captain D'Orsonnens whom you do not bring forward, but endeavour to prove it by a witness who sets out by telling lyou that he was not present at the commencement of the conversation bn which the confession was made. Certainly not at tl^is bar, or in any [other F.nglifl^ Court can a confession be admitted till i^ shall be placed beyond even the possibility of suspicion, that it was voluntary, free, and spontaneons ; whejtber it was or was not cannot certainly be proved by a person who sets out by saying, that he was not present at the com* mencement of the conversation in which it was made, having joined the parties afterwards. ^ , ^Itonuy-General—We can call jCaptaiq B^Qrsonnens first, if the Court thinks that the preferable course. Our only reason for introduce ing.Noiin was that he first saw De Reinhard, but we have no objection jto call Captain D'Orsonneqs if the Court think proper. Chief justice Sfejce//.— You, certainly, cannot by this witness get the confession admitted, because he is incapable of proving t|ie indispensable preliminary, tljat it was freely and voluntarily made. He can, however, answer for himself whether he did any thing, the effect of which would be to destroy it, an4 then, if he answers in the aegative,' you can call Captain D'Orsonnens and the examination can go on. Pid you, Mr. Nolin, make De Reinhard any promise of advantage in case he confessed, or any threat of punishment, if he moje no confes- sion? Jifr. ^o/in.— No, Sir; not any. -:n*5^ *.-■*,- . •«■■ • • ■ •• •■ ChUf Jmtiee Sewell.-^Veiiher the one nor the other ? Mr. iVo/tn.— -No, Sir ; I neither made any promise* nor any threat! to the prisoner to induce him to make a confession nor otherwise. l.:'M' Examined by the Attoxneji-GeneraU Captain D*Ornmnens. — I am a half-pay Captain of the Regiment pf Meuron. I Icnow the prisoner at the bar, Charles De Reinhard, and on the second or third of October, 1816, I met him at the Fort of Lalce laPluie. *, [Captfiin D'Orsonnens here intimated that he could wish' the Attor< uey-General to commence at an earlier period, as there were some cir- cumstances, which, as they were favourable to the prisoner, and might be of benelit to him, he was desirous of stating ; they had occurred an- terior to the period to wliicb the Attorney-General had directed his attention. After some remarks by Mr. Stuart on the singularity of a witness wishing to suggest to the Crown officers a course of examina- tion, and disclaiming any desire to profit by the offer, the examinatioi^ ^as continued.] ! . ., . .-„, -t, ^ ., Captain XMOrsonn^ns.— When I caQie to Lake la Croix, a small lake between Fort William and Lake la Pluie, I met several Indians, jind from them I learnt that the Metifs, together with the people of the North West Company, watched for us in the River Winnipic to destroy fit, and they described to me a military man, white, like one of those who formed our guard, and, by the description, I had no doubt that it was De Reinhard. On the following day, I believe it was, I met Mr. Pease, and I asked whether De Reinhard was at Lake la Pluie, and he told me he was. In con^quence, I sent Mr. Nolin and Mr. McDonald forward to carry a ietter from me, together with Sir John Coape Sher- brooke's proclami^tioa of the 16tb July, 1816, the whole directed by me to Mr. De Reinhard. Ii\ the letter I reqviested him to wait for me, as I desired to receive information from him, as to what had passed at the River Winnipic. On t|ie second or third of October I reached the fort, to which I proceeded by land, and Mr. Dease made the trip by water. I arrived the first, and De Reinhard came forward to meet me ; he shook hands with me, saying, he was extremely sorry to see me in that country, that my life was in danger, as well as the lives of those who accompanied me. That there were Metifs and several engages of the North-West Company, who, being determined to destroy my Lord Sf Ikirlc's estt^blisbmeDt, would wait for his people in the Riv^r WlnQi* *.' 45 pie; and that hehimKlf ba3 fortified the fort at Bas de la Riviere wltli five or six piecei of cannon, to fire upon the English when they should come down. At that moment Mr. Dease arrived, and desired me to walk into the fort, and we entered it and De Reinhard entered with ut. Before we went in, De Reinhard said to me '* that at some time when ** we might be alone, he would take the opportunity, in pursuance of ** the proclamation, to tell me all he knew of what had happened rela- tive to Red River, and at the River Winnipic." Some time afterwards, half p;.! hour I think, I went out of the fort, and De Reinhard followed me. He told me that " he had been left by Mr. Archibald M'Lellan at *' Lake la Pluie, for the purpose of apprising him of our arrival, and ** that they, the BoLs-brules or Metit's, as well as the people of tlie ** North- West Company, had determined upon waiting for us at some ** rapids in the River Winnipic in order to destroy us.** Mr, Stuart. — ^These questions of the Crown lawyers I consider as far, very far, beyond the limits of evidence. The simple question ber fore us is to ascertain whether the Prisoner at the bar is guilty or innot cent of the charge preferred against him in the indictment, instead of which, by the mode pursued by the Crown lawyers, we are getting into a wide story, that it is impossible to see where it may lead us. What have we to do with Metifs, Bois-bruies, or the North-West Company, or my Lord Selkirk, or any individual, except the Pri»toner at tjie bar. This wholesale method of casiting imputations on other persons, on per- sons who have no opportunity of repelling them, is certainly a prac- tice as unjustifiable as it is novel. It may be, perhaps, of little conotating how his examination shfiU be carried on ; it i> quite suffi< •cient, in the discharge of the i|uty every individual owes to the country of giving evidence in its public Courts, to give tBat testimony which ii -fOBght for by those, w|^, from their official situations, are best acquain* ted with what will be conducive to the attainment of justice. My ijus* pieions were immediately excited when the witness stepped forward in ■ibis manner^ Notwithstanding the boon which was proffered, I did not beiievein the sincerity of theo^er, and I rejected it. We were not .thus to he lulled into congdence, and the justice of our resolution I think is now sufficiently apparent. But, relative to this unwarrantable attack | upon gentlemen, who have no opportunity of meeting these gross libeh, for ao softer term can I use to correctly designate these slanders, I shall, I once for all, say, that whenever the ppvate piiosecutor in this case may | think proper to become so against them, the North«West Company will ^ot shrink from any investigation into their conduct ; so far from it, I .^hey will hail the day that enables them before the ^yorld to vindicate their characters from aspersions, calumnies, and libels, wl^ich have for a length of time been circulating with an avidity and industry, propor- tioned to the rancour and falsehood winch gave them birth and curren' py, Bjfii I do most sincerely trust, that the Court will oppose its au* thorlty, and prohibit this most unwarrantable and dangerous stride under the guise of giving evidence of a pretended confession, made by th:3 pri* poner, for, I repeat, that it is not impossible but it may be a matter of { indifference to some whether this prisoner is acquitted or convicted, if, by the trial, they are enabled to give publicity to calumnies with safety, from the consequences that, in any other way, would inevitably attend tiK propagation of libels. — I object, indeed, to the evidence being received. Chief Jiutiee Seicell. — You will, certainly, assign to us some reasons 'for so doing. I confess I do not at present see what is to prevent its being gone into. If the witness asserts that the confession was made without any promise or menace being used to induce or influence tbe Prisoner to make it, I do not see to what end the objection is made. These questions have not as yet been put, perhaps they might as well) M it will immediately decide the question of admisiiibility. 47 Mr. Tanfch(m.-^\ii orclcr, if it pteaee the Court, tbt tkiff wltii^ii may not be permitted to accune others. The charge at present bdbrV the G)urt is a charge of murder agaiast the Prisoner at the bar. My j learned brother, the Solioitor-Oeneral, now proposes to bring forward the confession of the Prisoner, but the testimony of Captain D'Orf on> nens is not confined to the confeiision of the murder, and we take the liberty of submitting to the Court that this course is irregular. CWe^Ju«//ceS!fwcW.— The Attorney-General proposes to hltrodtketf here a confession made by the Prisoner himself to Captain D'OrsonneniT, to which you object, nor do 1 at alt wonder at the opposition, as. If tiie I confession be admitted, the effect it iriust produce tipon the ca?e cannot I but be of the utmost importance. (The Chief Justice then noticed tM [remarks of Mr. Stuart on Captain Xf^Orsonnenv, sayiiig, no doubt they Ihad been dictated by a sense of duty, but (he added) that he had seen [nothing in the conduct of Captain D^Orsonnens, that exp^:>ed hhu t9 Ithe slightest imputation of impropriety, or the shadow of blame] — Al- Ithough a little out of the regular course, I think, as It was iai volubtary lofTer of benefit *Orionneits; — ^'The Priioner then spoke to me of an nm.t* ^nation that bad been committed in the River Winnlpie, and be added^ that he believed himself bound as an honect man, and in purfuance of this proclamation, to reveal the circumstances of the assassination that had taken place, for the information of his Majesty's government. Chief Justice Sewell. — Excuse me Captain D'Orsonnens, but I would again ask you if you are certain that you neither made any promise nor ^ny threat? Captain JD'OfJonnens. — Ves, your Lordship, I neither made him onj promise nor any threat ; I said nothing to him either for or against. jittorney-Oeneral. — Relate what he told you. Mr. 8tuart.-^lt is now proposed to prove thrs pretended confession. I am in time therefore to object to its being admitted. There are two I courses I believe open to me ; first, to object to it now ; secondly, to wait till the cross^xamination. I propose, however, as the safest and at the same time as the phortesi method, to put a fe^ questions to the witness, under a belief that his answers will prove that this pi^et^^nded { confession is not evidence to go to the jury at all, for that the cir* cumstances under which it was made, were such as completely to ex< dude it. These questions I apprehend will be very few, and they \vill I be in the nature of an examination on the voire d>Ve, to which course 1 1 believe I am fully entitled. Mr, Justice Bowen. — Will you, Mr. Stuart, state the circumtitancei I which you consider as entitling you to this examination^ or what you | propose to prove. jifr. Stuart. — I intend to prove the existence of a private war — a war I 'h against the KorthATest Company — and that in the prosecution of that war this unfortunate individual at the bar who was in the service of that | company, fell into the hands of his enemies, and — — jittorney-Oeneral.—l really must interrupt my learned friend, for I do not understand what he means by a private war. Were it even proved to have existed in the fullest sense my learned friend contends lor, it could not, certainly, be offered as any justification for a murder, | nor as a legal cause of influencing the mind of the prisoner. Mr. Stuart.'— 1 admit that it is, and certainly ought to be, a matter of regret, that such a war did exist, and it may hereafter be a suitable cnqnairy why it was not prevented ; but, at present, we have nothing 49 • io ^/^orne^-Genera/.— The statement of my learned friend is certainly one that completely surprises me. As to private war, I really know of no such thing, nor can it, according to my opinion, exist. If the statement I allude to is founded on fact, it constitutes the crime of high treason ; but, surely, the gentleman does not consider an accusation of high-treason, though susceptible of the clearest proof, can be admitttd as exculpatory evidence on a charge of murder. [The Chief Justice expressed his astonishment that it could for a mo- o ! >ii 66 ment be thnus;ht necMrary on the de rence, to exbiliit an unqunllflpd aU legation of high treason, a(;ahi8t a number ofperDonaof whom the Court were bound to know nothing. The Solicitor-GcnrrnI said, that tho ofHcem of the Crown could not, from any appr^hcnhion of theetTfCt it mi^lil have, be at all tim«>!t anxi* ons to exclude the prnpnideration how fur it was right to permit a witneFS, who in c-rtainly under the protection of the Court, to be exposed or made liablf to ac- cuse himdcir, by hii| evidence in a Court of Justice, of hijjh treason.— To which The Chief Justice mort pointedly observed, that, it could not for a moment be cupposed that a witn«?sp, whom, by every obligation of duty and office, the'CoUrt were bound to protect, would be allowed to im- plicate himself, by admilling that he has been gu|lty of high treason.. The SulicHor-CJeuera! remarked, that, if, at the time of making this confession, (lie prisoner wan in a xtate of illegal dureM, the result must be that the confession muct full through; but it was a most extir.ordinary and novel proposition to say, that this private war, if it did unfortunately exist between these two companies, should be given in evidence, afi a reason on an indictment fur murder, against receiving a confession made by the accused. He concurred with th^* Attorney-General that, if its existence were proved, the law would denominate it high tnason, and punish it as such. The Chief Justice stated, thi' any course of examination, which had for its tendency to draw facts from Captain DMrsonnens, bearing ever so remotely on tin case, might be pursued. If it was thought pro- per to enquire whether, at the time of making his confession, the Priso- ner was in a state of duress, it is a question that must be answered ; but, if the nature of the restraint should be investigated, this witness mai/ be in a situation that he cannot be compelled to answer (I do not say that he t<, far from it) any qu'estions on that point. If it should in any way affect himself he certainly may refuse to answer, and w6 shall protect him in his resolution. His Honour added that, it could not be expected that Captain D'Orsonnens should prove that D» Reinhard was a priso* ner of war, because, if he did, it might involve himself, and repeated h!s astonishment at the broad unqualified m ay in which the war and Captain IMOrsonnens had been spoken of. '!''■ Mr. Stuart did not want Captain IKOrsonnens to prove that lie made this unfortunate man a prisoner. That this force was headed by him, and raised and paid by the Earl of Selkirk, for the purpose of overturn- ing his commercial rivals, was a matter of such public notoriety that there could be no difficulty in adducing testimony to substantiate it" 61 I'l Mr. Stuart agHiii), in energetic language, adverted to the attack made upon pcrnonn not before tlic Court, and conchided, timt were it even admitted that hi!< confeoMon ought to be put on their Honours' note:*, it •bould be confined to that part which tilrictly rpbites to thn charge laid in the indictment agninnt him, and that thu witncM ought not to be per- mitted to relate any part of the conversation, not immcdiHtely bearing upon tlie queption of the guilt or innocence of the prisnrcr. Mr. GaU. — I would hiinihly submit to the Court that — — Mr. Stuart and Mr. Ka>t/e/fon.— Mr. Gale is not, assuredly, going to address the Court. Mr. fila/e.— As Amieut Curia I certainly must beg permifssion, and, conceive it being a very cuand I 41111 llrit a«k, had Fort William been captured by Lord Selkirk before yo« «aw the Prisoner, De Reinhard, at Fort Leo la Plule ; and when waa it fo captured? Captain P'Orionnen*.— No ; but Lord Selkirk took potwMlon of It on the thirteenth of August. [Mr. btuart'i next question being to the ifianner in which the fort was taken possession of, the Chief Jufitice remarked, that he bad taken the last answer down merely as a fact, \>ut, If Mr. Stuar-: Intended to follow it up, and to prove bow it was tiken p jsMssit n of, he thought, In justice to the witness, he ought to strike it f/:t, ai«j[ be should do so. Mr. Stuart disclaimed any wish to ask i'lis witq s any qr- Hlon Uiat would implicate him by answering, but conceived that he i.-i aright to prove that Fort William was oapturnd, and to go on ttn'i shew thai it was retained forcible possession of , and, from t :•«> .ircurastance c -:'i- bined with others, as the prisoner was under tl it r*<'t)'>iDt which the clemency of English law deems sufficient to exclude a confession from being received as an eviden(:e of guilt. He referred again to Macoally, fule 9th, page id.] Chief ^vttice Setpell. — If I understand you, it it ii/tended, by an exam- ination in the uature of one on the rotre 4irc to prove, that, by a military or armed force. Fort William was taken possession of, and to follow up that by evidence of a similar taking of the Fort of Lac la Plule, and thence to infer fhat the confeMion, offered on the part of the Crown, ought not to be permitted to go to < . n <7ary, bce^se It was extorted hj the restraint which the Prisoner was subject to. I apprehend that these will be found too remote circumstances to invalidate the confession, and, particularly, as ft stands mi present In evidence, that possession was not taken of Fort Li^2 la Plule, till a/ler he had made it, and was so taken in oonsequence of information which he associated with hia confcHion. JIfr. Sluart.-^I must still, with great submission to the Court, con- tend that the doctrine On which I rely, for the exclusion of this pretended ^nfession, is correct, and is sanctioned by authorities equally respecter 54 I U !'i •tie afl numerous. The rule in Macnally, which I just now submitted t« the Court, is supported by Gilbert on Evidence, page 137, *^ these rules reflect the brightest lustre on the principles of the English law, which benignly couMders that the humnn mind, under the pressure of calamity, is eanly seduced, and liable in the alarm of danger to aclcnowledge, iib diicriminalely, a falMehood ur a truth, as different agitations may pre* vail." What ean be more applicable to the present case, for, if even it werecoateuded that the circumstances ought not tn have had that effect, were tb«'y not such as might caf\l\ be supposed to produce the state of miniVwhich is described as leading, indiscriminately, '■'■ from the alarm of danger" tn the "admission of either falsehood or truth, as different agitations prevailed." This able \rriter goes on to exhibit, in language equal iy forcible, the reason upon which this humane construction of law is founded, therefore, be adds, " a confession, whether made upon an official examination or in discourse with private perf^ons, which is ob< tained from a defendant by the impression of hope or f^ar, however slight the emotion may be planted, is not admissible evidence. For the la\T 'wilt not suffer a prisoner to be made the deluded instrument of his own conviction." Having (bus set forth the rule and descanted on its pro- priety be subjoins an iliuHtratiori of its wisdom in these words >' the wis* dom of this doptrine was fully illustrated in a cas^ at Glocester. Three men were tried for the murder of iHr. Harrison at Cambden, and one of them, under a promise of pardon, confessed himself guilty of the fact. The confession, therefore, was not given agttiint him, and a few yean after it appeared that Hnriison was alive (JNl. S. note cited in Leache'i Cr. C«. £d. edit. 223~3d edit. 298.) Mr. Phillips in his Treatise on Evidence maintains the same doctrine, after stating in sect. 5th, page 81, the w< ij^bt of a voluntary confession, he describes the circumstances thafare necessary to justify its admission against a prisoner. '^ But the confession must be voluntary, not obtained by improper influence, nor drawn from the prisoner by means of a threat or promise, for, however ■li^ht the promise or threat may have been, a confession so obtained cannot be received in evidence, on account of the uncertainty and doubt, )vhelher it was not made rather from a motive of fear or of interest thaa from a sense of guilt." [The Chief Justice observed, that facts which immediately surroun- ded the case might be proved, whether they ought or ought not to have produced the effects which followed them was another qoestion, but the facts themselves they had a right to lay before the Jury, because tbcy might account satisfactorily for the eff<'cts. Thus if proved that the Prisoner was suddenly taken possession of by a body of armed |nen, and under fear of consequences, was induced to make a confession, though it 55 might not, from Ur being an illegal restraint, ret the conferrioA aslilev. so a!) to prevent it from going to the Jury, yet it might form a lA you go into the Indian country, or to Lac la Pluie, in a civil or military capacity at the time you have mentioned ? Captain D'Orsonnens.— 1 proceeded to Lake la Pluie in 'October, 1816, as a simple individual, and not in a military capacity. Mr. Stnnrt. — How many persons were there under your charge ? Captain D^Ononnens. — Seventeen colonists, discharged men of the regiments of Glengnry, Meuron, and Watteville, destined for Red Ri- ver; and, also, eighteen Capadians, voyageurs, in the service of the Hudson's Bay. 3Ir. Stuart. — Did you stop at Lake la Pluie, and why ? Captain D^Orsonnens. — We stopped at Lake la Pluie in consequence of the information which I had received from De Reinhard of the danger Avbich awaited us in the River Winnipie, Mr. Stuart. — 1 hese people were they^ armed, and was it with bant- ing guns, or with American guns ? Captain D^Orsonnens. — The colonists were armed, some with huot« ing guns, and some with small American guns; the Canadians were not armed. Mr. Stuart. — And, as it was your intention to proceed to Red River» you had no intention of taking the fort at Lake la Pluie? Captain D'Orsonnerw.— tMy orders were to proceed to Red River if I could, and, if not, to build a bouse at the Portage of Lake la Pluie. Assuredly, I bad not any intention of taking the fort of Lake la Pluie. 3Jr. Stuart. — And you considered yourself as a simple individual, without any military command or authority? Captain D^Orsonnens. — I was a simple individual. I was not thera with any military command whatever, and I do not remember having given orders to any ono, excepting to my colonists and Canadians. Mr. Stuart —You did not give any order excepting to the colonists? nor any as " the chief of the advanced guard of an army." Captain D^Orsonnens. — I was not there as the chief of the advanced ^^ :|l ! -■T giMir^ ot My wmjr. I wm the chief of a party of vojjageuu^ in the Hudson^s Bay wrvice, and there was no order i««ied by ine Jljui to my •oloniftf and Toyageun, excepting one directed to Mr. Dease, and that ^KtA with his own consent. Mr, Stuart. *^Ai what time and how did you issue that? Captain D*0rtonnenir—1 represented to Mr. DeaM the danger to which we should he exposedf if the Melifs came, and I demacled of him to lodge us in the fort, oflforing at the same time even to pay him a rent. He refused me, saying, that it was impossible ; and I then, as a measure of precaution, demanded the arms and ammunition. The exigency of the circumstances obliged me to make this demand, and I represented it in that way to Mr. Bease. Mr. Dease delivered the arms and ammuni- tion to me, and I drew up a receipt for them, in tlie terms which he dic- tated to me, for his jus-tificatioo. Mr. Stuart.— Thia receipt how did you sign it ? Captain D^Ononnens^—l signed it ** Captain D'Orsonnens, com* mending the advanced guard of Hudson's Bay voyageurs.'* [The Attorney>General objected, that although in the latitude al- lowed in cross-examination, this course might perhaps be admitted, it had nothing to do with an examination on the votre dirt ; to which Mr. Stuart replied, that, without deviating at all from the rules which gov- ern an examination on the voire dire, be had nearly i^but out thiti pre- tended confesKon, by shewing that the Prisoner was under constraint, and that of the most arbitrary kind. The Attorney-General rejoined, that all this took place in conse- quence of information given by the Prisoner at the time he made his confession. Was not that the ease captain D'Orsonnens ?] Captain D'Orsonnens.— De Reinhard's declaration was made on tiic third of October, and I received the arms on the sixth ; and it was io consequence of the information I got from him, tliat I demanded them, Mr. Stuart.— How did you sign the receipt? Chief Juitiee Sewell^-^Ix is of no consequence how it was signed, it could not influence his confession. Mr. Stuart,/— 'Km answer might, perhaps, affect his credibility, as we shall, on his cross-examination, shew, that all this resulted from the pri< vate war, which I shall then demonstrate did exist between these con* mercial rivals. Examinaiion re$umed by the Jttomey^eneral. Captain D>Or«onnefu.~When I held the eonversation with De Rein* hard, he was not a prisoner; I explained to him how much I was ves* 67 e«l to Sn^ Aytelf in suth dilBculties. He knew before making his decla- ration, that I was only a simple individual, {$impU itidividu.) He told me tliat lie Iiad l>een sent in Augnrl, by Mr. Archibald Norman M'Leod, in the capacity of constable, with a warrant to arrest one Ow en Keveny, and that he bad taken him prisoner and carried him to Baa de la Riviere. That some days afterwards a council was held, at which were pi^.sour Mr. Alexander M'Doncll, Mr. Archibald M'Lellan, Jo- seph Cadotte, Cuthbert Grant, and several other Jlfe/{/«, whose names I have forgotten. De Reinhard told me he was present (not as one of the council) and that it was resolved, that Keveny was a man of too great consequence, and that he ought to be killed, but not there among the Indians ; and that he had in consequence l>een sent in a canoe to Laka la Pluie. That by dint of the solicitations of a man named Maini'ille, who had consented to kill himt he (De Reinhard,) agreed to see that Mainville did do it. Being come to a place called the Dalles in the River Winnipic, Keveny required to go on shore, which De Reinhard granted, and when Keveny came to re-embark, he (De Reinhard,) said that it was the proper time. Mainville immediately discharged his gun and wounded him in the neck, when, as an act of humanity, seeing that he could not live, he nin his sword twice through hislrady to prevent him from suffering, and according to all he had heard from his masters, (bourgeok,) he was in the belief that he would have done a meritorious act even had he killed him himself, and that he should have done the same to any other Englis^hman, having, at a council of war some time before, heard the Indians solicited to make war upon the colonists and the English of Red River, whom he conridered as enemies to govern- ment from the representations of Mr. M*Leod. I was not a magistrate and I have no knowledge that the Prisoner*s declaration was taken by a magistrate, or any how, in writing. I have not received any pay from any person since the regiment has been disbanded, except from his Majesty ; but liesides that, I possess my own income-rents, paid to me by the Swiss. — De Reinhard described Keveny to me as a handsome yonng man, tall, with light hair, inclining to red. He likewise told me that they dragged his boily some distance along the beach and left it there ; and of his effects, that he (De Reinhard,) had given a part to some, and a part to others, and kept a part himself, amongst which was liis writing desk. He told me that he looked upon him as must certain- ly dead— for being mortally wounded, to save him a few moments of pnin he (De Reinhard) had run his sword thropgh his body. He also told nie that \m bo^ly had been left quite naked, having been stripped even to his shirt. 58 Cro$$'txatninalion conducted by Mr, Bluturt. ijii ' i lill''!!i! Captain D*0rionnens4 — ^I left Montreal on the S7th of May, 1816, with eight men, formerly Meuron.*, engaged aa voyageurs to Kingston, and fourteen, (i|xteen, or more men, formerly Wattevilles. At King* «ton we were joined by Captain Mat they, Mr. Graffenreith, and Lieu- tenant Fauche, with fifty or rxty, and the whole number might then amount to eighty or ninety men. Fort William was in the occupation of my Lord Selkirk and his people at the time I had the conversation with the Prisoner already mentioned. All these men, those with me, in the first instance, and the others, were engaged under the direction and in Ahe name of my Lord Selkirk, and of the Hudson's Bay Com* pany, to undertake the voyage to Red River, and to take lands there if they desired it, or, if not, to return to Europe by Hudson's Bay. I oever received any money from my Lord Selkirk, nor from the Hud- son's Bay Company, and I do not mean to receive any. We bad can* non, (but not any mounted, nor any tackle) (gremens) intended for the defence of the colony, and (as I believe) to replace other cannon which had been stolen the year before. I have no personal kno%vledge that these cannon were stolen, but I believe they were. Mr. Stuart. -"ThU very answer demonstrates I should humbly submit that we should be permitted to go into evidence of the general state of j the country, for, if not allowed to do so, the prisoner is deprived of his principal ground of defence. I have no wit-h to enquire whether mj Lord Selkirk was right in taking possession of Fort William with an armed force, and in pushing his conquest to Fort Lac la Pluie, or whe- ther the witness was not at the bead of that army which took the fortf, and whether the whole were or were not in the employ and pa,v of the I private prosecutor. I do not want to mention the name of my Lord Selkirk in the examination, but, I do humbly contend, that ever; | thing material to the defence ought to be admitted. Wc consider that we should be allowed to shew the general state of this unfortunate coun* try torn to pieces by a war, emanating from a great commercial rivalry, and bounded only by the interest or ambition of those engaged in the j conflict, but, from the peculiar situation of that country, involving personally in its consequences all who, from any circumstance, were found within its wide and exte^ided range. Widely different is that iiQ- niense wilderness to a civilized country ; — an immense territory known, iu part only, to the fur-traders — in possession of the aborigines, the na- tive lords of the soil — tracked only by the hunters In pursuit of the bea- ver — with no habitation but the cabin of the Indian, except the poets li 59 which commercial enterprise hns established. Widely different Is a con- feuion made in a territory remote from every thing lilce the semblance of magiitracy or judicial authority, where to be accuned was to be con- victed ; nay, to be suspected only was to be exposed to punishment, and where the only avenue to the prot<^tion which the law afforded being in the hands of the enemies this man — his enemies because they were at war with his employers — was, therefore, cloMfd against him ; different, indeed, is a confession thus made, to one made in our police office, where it may be reasonably esteemed, the disburdening a conscience troubled by a sense of guilt, there it may be only a self-accusation under the hope of some advantage. Mr. S. again referred to the ease of Harrison. If allowed to prove the general state of the country I should demonstrate, perhaps, that •elf-accusation was this prisoner's only security for the preservation of life. Nothing, after what I have witnessed of the lawless violence practised in this unhappy country, can excite my astonishment. The preservation of the interests, nay, the life of that man is entrusted to our hands, and fi-om no motive of delicacy to any individual, let his rank be ever so high or elevated, will we consent to sacrifice the one or endanger the other. In the discharge of professional duty, I dare not ; whilst, as a man, I should scorn it. ; The Chief Justice enquired what effect this could have upon the case as it now stands. He should (he said) be sorry to prevent any thing being adduced in defence of this unfortunate man, but there must be shewn a connection between the charge and evidence, which prima facie did not appear to have the least bearing upon the case, before it could be admitted ; for, supposing the whole substantiated, does the state of the country alter or justify a deliberate murder ? Mr. Stuart. — I am not arguing upon any of the circumstances I spe- cify ; they have been only mentioned as matters of public notoriety ; but the point I have the honour to submit to the Court is, that this preten- ded confession ought to go for nothing, as it was made at the time that the Prisoner was in the possession of an armed force, and, to substan- tiate that f\ict, I wish to go into the state of the country generally, as, if permitted, 1 shall then shew that he was, although apparently free, as actually a prisoner as if confined within the four walls of the common gaol. Mr. Jiistice Boven briefly recapitulated the points which Mr. S. had staled he wished to prove, and concluded his remarks thits-^The circum- stances of the country generally (although undoubtedly of a very pecu- liar nature, and deeply to be regretted) appear to me to be too remote a cause from which to infer that a man would not only confess himself to be a participator in offences, hut also accuse himself of murder. I m ft! 60 fully agree with the opinioni delivered by my learned brother the Ciiicf Justice, previoui to the examination on the voire dtre, that the circunf. stances were too remote, as they appear nt present, to prevent the con> Cession being received, and submitted to the Jury. Mr. Stuart expressfed himself rather glad of the decision of the Court, as it would afford him an opportunity of putting the questions, and of having a formal objection mad« to them, and, by that moans, of ob< taining a solemn decision of the Conrt. After its opinion, intimated just now, 1 shall only as matters of fact (said Mr. S.) 1 presume be per< mitted to shew that Fort William vai taken possession of by ^n armed force, and prove that, previoiu to the confession, the fort of I^ac la Pluie had been taken pofisession of by Captain D*Orronnenf. If I eitablisj) ihe fact that Fort William being taken ^as in the knowledge of the prisoner, I consider that the ret getta of the affair is settled ; for the in* ^uence upon his mind must necessarily have been stronger when he wit< nessed a small division of that force, detached from the main body, to pursue the same course at the fort of Lac la Pluie, which had previously put them into possession of Fort \f illiam* The moment they took pot- session of Fort Wit liana I considef that they had a complete pommand of the country and all who were within its boundaries were subject to their will, to which any opposition was completely unavailing, as it must be nugatory. These facts, I presun^e, I ihall be permitted to prove ; I purpose unaply putting one or two questions, which, I trust, we shall be able to satisfy the Court are questions essential to our de- fence, and such as we are entitled to put. My questions will be " whe- ther Fort William was not taken possession of or capture^ by persons in the service of the Hudson's Bay Company previous to the pretended con- fession of De Reinhard, and that to De Reinhard's knowledge ;" and ** whether the fort of Lac la Pluie was not also taken by peirsons in the service of the Hudson's Bay Company prevbus to the sai4 confession ?" The Attomey-Qeneral miimaHng tkat he objeete4 to the gueifjonf , tht €ourt wu$ ordered to be adjourned till MmSaji UijC iSfh Jlfiiy, of eif^ht e'efocik, A,M, .< ^■" vv... * ■ - \ :,.^--, ^.. Saturday, fSthMay, 18te. tOVKf PheStNt AS OK SATVADAY. The Jurjf hanng b«m tatkd, and fvund to be pnsmtf the jUkuma^ 0emrtiiwm$ eotmntneing hit obteruUiont tflAcn th» ChirfJntliet ntggethd that Mr. Stuart had better be heard in the qffinnative. The jtiometf^o* rural atatei that the objulUm coming from ike Crotm t^fieer* he oomticed tiu more regidar wnjf vould be to allow Mr. Stuart to reply to Cbem. Mr, Stuart etpretitd a with lo etate the ground» on uhidt he eomeived hinue!^ entitled to fmt the queitiont, adding , that, unleai permitted to do eo, 1h» Crown i^fiiurt poufd not know the fmrjpoee/or whieh they were jndf Attomejff^eneral.'^l object to the questions being pat at aU;tim potive for putting them is sufficientljr apparent from the fuestioni themselves. They are '* whether Fort WUliam wo* not captured by per^ ** eons in the lervieetfthe Hud$ori*s Bay Company, previttue to the eon* *^festion of the prisoner, and that to his knowledge,** and also, ** whether I f ' the fort of Lac la Pluie was not also taken by persons m the serviu iff tha I ** Hudson* s Bay Cotftpany, previous to the said eoi\fessiafii?** If they wer« I so even, it would not, in point of law, invalidate this confession, for there are only two circumstances which can destroy the evidence of a confiet* lion, namely, that promises, or menaces, were made use of to obtain it, Now a mere knowledge of the fact tliat Fort William bad been taken can notcertaiply operate either as the one or the other, I humbly ooih. tend, and consider it unnecessary to detaUi the Court to support the pro^ position jity argument, tlijat nothing but a promise of reward or advan- tage, or a mepace of punishment, is sufficient to destroy a confession. For a moment admitting it to be a fact, that the fort was taken and kept possession of, in the iqanner stated by my learned friend, it is not exactly apparent how such a circumstance is to operate to preclude a confession being good evidence. I submit two points only have that I power, promises or menaces being resof ted to to obtain itf Solieitor^enered. — ^I shall make *nv objections rather more general I than my learned friend the Attorney*Cienerfil has done, but without trespassing long upon the time of the Court. And if I should be able to cut down a long chain of testimony which I perceive my learned friends are 4*»IF9I4' ^ ia(«'oduce, an(l whicli I t|iink I shall be (ible tii Illlltill'l 'i! ;llf, i ! •'! I. :"'ji W r 62 Ktisfy your Honours, is in no way relevant, I trurt it will be occupying a few minutes in a way tliat may hereafter save liours. Tiie propoiitloD appears to me to resolve itself into two questions: fini. Whether thi Prisoner was aetually in a state of confinement, in a state of actual tm* frisonnunt, at the time of making the confession, and necessarily under fear ; or, second, Whether, from the state of the country, owing to i fystem of unlawful warfare, he was under construetive restraint, and rron that circumstance, under the impulse of fear, so as to extort from him i •onfiession.' In proof of the existencrof this unlawftil warfare, it is pro- posed to prove that Fort William was taken. But my learned firiendi do not propose to prove this as an isolated fact, it is intended only to form the introduction, or ground work, to a long chain of testimony, which my learned friends are desirous should go to the Jury. I there- fore oppose the admission of the introductory testimony, though it ti a fiutf because it is a fact no way bearing upon the case, and intended only to pave the way to a history that will consume a great deal of our time, and to no end, because it cannot be brought to bear at all upon tbe charge against the Prisoner, who now stands at tbe bar to answer to a charge bf murder. — The points for your honours consideration, X consi- der to be two — Whether the Prisoner was in absolute custody, and also In a state of fear, and secondly, if not in actual confinement, whether the state of the country were such, that a constructive restraint operated en his mind to such an extent, as to induce a fear that shall be consider- ed as an adequate reason for rejecting this testimony. With respect to the first, what does captain D^Orsonnens say ? He answers positively that he was not, that the fort of Lac la Pluie was not taken possession of, at lep.st that it was not at that time, but that in point of fact, the Prisoner was as free as I am at this moment. But, if he had been in | custody, I contend that it would not be sufficient to invalidate the con- fession made. Do we not daily see confessions made by persons is cus- 1 tody P Confessions made in our police-office by persons with a constable | at their elbow ? but is that ever adduced as an evidence against the va- lidity of the confession ? most certainly not. This part of the subject I consider to be completely answered, and that the objection must fail. On that branch of the objection, which is founded on the unfortunate state of the country, the doctrine of my learned friend, the Attorney- General, I consider to be perfectly correct, that it is only a direct pro- mise, or a threat, that can destroy a confession, and I perfectly agree with that opinion, and consider it as unanswerable in law. I might perhaps be disposed to admit that, if by legal or illegal restraint, a con- fession was extorted, though no direct promise or menace was apparent, that it might perhaps be a subject of fair consideration to go to tbe Ju- ty, for them to ny whether or not the confenion hail been made under circumstances of impriMnment or restraint that entitled it to no credit* I do not know whether in admitting even this, I am not going too far, but it cannot, at all events, apply to the preient case, for there arc n« such circumstances proved ; the evidence goes directly to contradict it, for captain D'Ononnens says expressly, that he was not in confinement or duress of any kind. If any thing of the kind did exist, it must be most clearly proved ; and it is incumbent on the Prisoner most distinct- ly to shew the circumstances to be of a nature so strong, that they ac- tually led him to accuse himself of crime, to escape from the dangers with which he was surrounded, and which threatened to destroy him.— But the circumstance of restraint alone, could it be admitted to iic ve ex* isted, is not of itself sufficient to object to a confession^ Your Honours will recollect a case much stronger than any that have been hinted at here, which existed not long ago in England, that of restraint by a mi- litary fojrce, which the intemperance of misguided persons rendered it necessary, by way of precaution, to employ. In that time of tumult, a man in the commission of excesses was immediately seiisd by a party of dragoons, examined before a magistrate, or the secretary of state, or the privy council, and his examinations made evidence against him on his trial. I am aware that it may be objected that this was a legal, though an imposing force, and that any confession made under its fear, was ad- missible—because it was created by a legal body opposing an illegal force. But your Honours will see immediately that this argument tells just the other way, for be had no right to suppose that he would be con- fined if he did not confess. He was not invited even to confess. If a •Icfendant is permitted to say that he made a confession because he was afraid of going to jail, I am apprehensive we shall never have a confes- sion read. What is the common practice in London ? A man commits some offence, a nocturnal one for instance, he is taken up, carried to a watch*house, or lodged in the compter, if the circumstance occurs in the city, till the morning, when he is taken l)efqre a magistrate, or the sit- ting alderman, as the case may be. Having for some time before, and then remaining under restraint from the custody of the law, he coniiesses his guilt from some motive or other, perhaps, if others have been con- cerned with him in the infraction of the law, from a hope of being re- ceived as a witness on the part of the Crown. On his trial bis own confession is produced against him. No doubt, having misled himself in his expectation of being received as a witness for the Crown, he would be glad, on his trial at the Old Bailey, when hn confession is produced in evidence against him, to object to its being received, and \vould assign, as my learned friends do on the present occasion, that at 64 -. i W i ' 'i llie ttm« of Making it I10 was in % state of dureM, andF #ti afraM of tii# tonwqusnceB, or in otlier words wan afraid lie would Im lent to jail.-. But we all Icnow that would nut prevent the confeNlon fronii being re- teived, becauie Iw muat most distinctly sliew« tliat lie was not only ta iwreiiy but that hia imprinonment was used to screw out of him a eon* fesiiion. Neither can the Prisoner at the bar be allowed, on the other band, to plead that he thought it might be to his advantage to eonfem, and that thtrtfore he made his confession* The answer to that is, if he fiid thinic so, he has thought erroneously, and his erroneous conclusios cannot invalidate a substantial confession. In answer to that part of th« argument which we have before heard, relative to the naturt of the du< ress under which the Prisoner alleges he sulTered, and the operaHon o/il §nhis mindt we make the same observation, that, if even true, it fur* nlshes no objection to the reception of his confession. It Is merely an erroneous conclusion of his own mind, and we add further, that as there Is always redress for an illegal act, it is qnito impossible that he can be ipermitted to allege that he was apprehensive of his personal safety at the time of making it, and that therefore, the confession ought to be set aside. His thoughts as to the consequences of what, (if it existed,) wai an illegal restraint, cannot certainly exclude the testimony we offer «i to his confession. We think it wrong that our learned friends should be allowed to go into proof of what, in their own words, is denominated a |>rivate warfare ; because supposing indeed that they proved its exist* ence, is could not, for many, very many, reasons, and among them, for tliose I have had the honour to submit to the Court, be received, cither In justification of the act charged against the Prisoner at the bar ; (for which purpose my learned friends would not think of presenting it,) nor (as I submit to the Court,) to invalidate the testimony of the Prisoner'i confession, already before tba Court, and which we propose, if permitted %y your Honours, to strengthen by various other witnesses. I think it unnecessary to oflbr additional arguments, indeed I ought to apologise to your Honours for the length at which I have occupied the time of tiie Court. "'' "■ Mr. Stuatt. — The question now in argument before the Court, is ene of infinite importance to the Prisoner, being in eflTect no less than whc ther he is to be permitted to exhibit a defence or not; for, if not per* mitted, either by cross-examination of the vritnesses on the part of thi Crown, or by the testimony of those we have to produce on the defence, to bring liefore tiie Court and the Jury the situation of the country de* nominated the Indian territory, he is, in point of fact, excluded froa | his principal defence ; and what period is so proper as the moment whes a pretended confession is attempted to be introduced as evidence agaioit ^t the pridoner ? T auk, wbnt time i» lo proper ai tbia moment, to bring be« fore the Court and Jury thow circumstances, which, if the confeMloil even riioulii have been made, as is related by tho witness now under exa* xnination, Mroul(f immediately shut It out ns completely inadmissible evU (1«*nce agniufit him, from their producing a constraint incompatible with (hat frcptlom which the wisdom and humanity of the law, unite in de- claring absolutely necessary and indispensable to the validity of a con- fession. In producing these circumstances it is impossible not totoach upon the difflculties \«^hich unfortdnately eitisted between the Hudson*^ Ray Com;tBny and thu Kiirl of Selkirk, on the dne hand, and the North- Wcst Company on the other. Tn so doing, however, I fthall most stu^ i^ioukIv av6id introducing any thing calculated to excite the feelings of any pcrfion, and t>hall refrttii. fro"^ mentioning the name of the private proM'uutor, or any other person;.' who may be supposed to be interested on the other fiide of the ((Uestion, excepting when, in detailing mutter^ of public notoriety, it is completely unavoidable. It is a matter of pub- lic notoriety, which it is indifspensably necessary to prove, lluit an armed force, nrtder th: ordtrs, aite permitted, nor do I consider that the circumstances dtated arc any way relevant to the case before the Court. '^■(^ i ' Chiif Justice ScveU. — I certainly wish Mr. Stuart to confine himself ^rictly to points wliich, according to the ucknowledged and established rules luid down to regulate the admitision of testimony, he is entitled to insist upofi oiTeriii^, and we are bound to receive. I repeat to you, gentlemen, that the Couft are equally sensible with yourselves, that a variety of difficulties distinguish this from ordinary cases, but there are none that render it either necessary or expedient to depart from everj^ aeknotrledged principle upon'wiiivh criminal proceedings are uniformly conducted. I do sincerely hupe that the gentlemen on both sides will i^hape their course in that way, and shouldany point arise, involvin); in it a diilurcnue of opinion, the Court will enforce that exposition of th« low which it is their duty, according to the best of their judgments, to furnish. Perhaps it ' impossible strictly to confine gentlemen on a case like this — it may be inconvenient, and even unfavourable to one or other of the parties, parties equally entitled to the protection of the Court, M \y: I'ltll. ;; i 'I i'l bat 1 do Dot M« tbat it can U entirely ■voided—indeed on eron-etaa^ ••tioB at all tiopes eoniiderable latitude ii allowed. JUonuy^tmralf^lt the Jury were permitted to witlidraw, I ihuuld •ot object to the argument being purF^n > u It wn.% net from any ap> preheniion that eventually H will ul eU.r—T\K Jury unquestbnably cannot be permitted to retire. They are entitled to hear every point of law discussed, as well as the evidence. Every thing must take place heibre themi t^t they may form a correct opinion. il^. Stuart.— 1 will, in submitting my avgament to tlse Coart, stats aotbing that I do not mieair to prove. ^ j|/tomej^6eneraf.-^That I dare say, but that is the very objection we make. My learned friend is desirous to enter upon a long chain of circumstances, which (if true) do not at all bear upon this case, aod eannot in any way be made evidence, although' they might, aided by his talents, impress erroneously the minds of the Jury, and lead then away from the only subject that ought to occupy their attention. Mr. Sluarl.—'l conceive I may state aor outline of what I Intend to prove ; for, unless I am permitted to do so, I do not see how the oflicen of the Crown can- object, or the Court determine whether I am witbia or beyond the pale of cross*examinatio». I have no wish to address the Jury, because I know I cannot be penaitted to do so, but I must, as I conceive, be allowed ta state to the Courl an outline of what I am d^ rirous of proving, and my reasons for l>elleving. thai I anv offering no- lAUng inconoifltent witk the accustomed course of proceedings. Mr. Ju$tiee Bouen.—We sit here, I take it, at the present moment, to decide whether the qnestionfl proposed and objected to are, or are not, such as migiit be allowed to be put. The learned Crown officers have been heard, in support of their objections, and the eomisel for the Priio- aer are new desirous of answering them, and of evincing that Uiey art untitled to put the questions. Perhaps, before the Court can satisfacto* rily decide that point, it is desirable clearly to oomprehend the object of the gentleman in proposing tliem. If I understand the intention or de< sign of these interrogatories, they are to commence a series of questiout * ff«ltChr« to t lOppoMd iMtu* of tko priioncr tt ike dmt of naldng tin conftuion. Tbii being proved, he expecti the Coart will decide that the eonfeNlon eennoi be permitted to go to the Jury i«t all. It it our pecalier province to decide upon the •dmlnibility of tettioiony In the jlrif initance, but, iWkm admitted, to (he Jvkrn atcne belong! the power of determining the credit that ii due tv it. The Court perhaps may be aulited in forming iU deciiioq, if the Mppoaed hearing! of the teitimony which it If wlAed to Introduce 9(n pointed out. Jlfr. SiMarL— I mean to prove, that an armed fei«e, which thii wit- aen accompanied to Fort William, took poHetiion of, and retained it by force, against the iuclination* of the North- Weit Company ; and that the partnerf and lervanti of that Company were arrested and tent prisoners to Montreal, upon charges of having pommitted murders, high treason, and a variety of other ofisncet. I nenn to prove that this force, and particularly those who commanded it, represented that these measures of unheard of outrage and violence were perpetrated under the sanction of the governnienl, to which it was repreatoted the whole of the North-Weit Company were rebels and traitors. I mean to prove, that, in the prosecution of this system of lawless terror, a division from the same army captured and razed Fort Lac la Pluie, appropriating to their own nse the property, and <»— ^ Chief ^mtite Stmll.-'l must stop you there, Mr. Stuart: all that took place at Fort Lac la Plaie (and what it was we do not wish to know) happened four days after the confession was m^de, and therefore cannot be evidence. Mr. Sfuarf.— From the peculiarity of the case, .It is not absolutely impossible but the elTea might, even under these circumstances, have been prododd not athnitted it him- I self /(e (Mr. V.) should satisfy the Jury, from Captain D'Orsonnenn' own hand-writing, that in point of faet he was so. The note sent by McDo- nald and NoUn with the Proclamation, tolling De Reinhard to wait his arrival, was signed by Captain D'Orsotinens as Coplain of Voyageun in the nrvia of the Hudton't Bay Company ; and, if (said Mr. V.) be wa» a simple individual {timpU indiridu,) wliy should he direct De Rein- I hard to wait for him. Mr. Justice Bowen hinted that Captain D'Or- I sonnens advised or counselled, rather than directed, him to stop, anA havhigread a part of the evidence as taken by himself ending, '* la the m 12 'I, ; ,)ii |l ': Bi mii mS. .f>i I ■ -I *' note I requested him to wait for me, us i waiited him to give tixc ia- ** rormaUon of what hail occurred in the llivcr Winiiipic."] * Mr. Van/eltoitr—l proceed then to con&idcr the I'eal situation of De Keiiihai^d at the peiriod of thiH cou'vers&tion, in the course of which my learned friends ray that he mude t confession of the murder. Fort AVi|. liam had been talcen by, and remained fn po8)«eshion (yf my Lord Sel- 1tirl(. Captain n'Orsonnens liad come to Lu1ce la Fiuie with seven leen armed men, and eighteen Canadians, although, as he Ims told us, he ^as only a simple individual, or private person. I now solicit your Honours to favour mc with your purticular attuntiun for a moment.— I beg you will remember that Fu'rC tV^itliaui had been taken by liord Selkirk, and that at the time of this convcr.«ation De Reinhard knew that fact. This circumstance is highly important, for, in my humblf ofpinion, it \Vill have the elfect of wholly destroying this pretended confession. Th6 argument, founded on this fact, which' I hiive the. honour to submit to (he Couft, Ts this, — The outlet from this country being in the possession of Lord Selkirk and his people, and a part of the pnme force having, at the very moment of the confession, also sur- rounded the fort of Lake la Pluie, where De Reinhard was, and whence lie was not ai liberty to depart, not had any meaniit of so doing — the confession that was made wals not the confe!>sion of a persort that wa» free, and therefore cannot be received as evidence again'st him. The circumstances in which he was placed could not but excite fear in \n> mind, and I therefore submit, that, his mind being under the imprc::- •ion of fear, the confession was not free and voluntary ; and before a Confession can be received as evidence agahist a prisoner, I contend, h is necessary that the Crown' of^cers establish, that it was made frtely md ''oliintarily. The rule is a general one, ani, if there are aiiy ex- ceptions to this rule, it is the duty of the Crown officers to produce them. I refer to M'N'illy on E^ridence, cap. 6, rule 9, page 43.. " A " confession forced from tLo mind by the flattery of hope, or the torture *^ of fear, comes in so questionable a shape, when it Is considered h! " evidence of guilt, that no credit otight to be given to it, ond therefore *' it ought to be rejected." In the present case, then, tlie confes- lion ought to be rejected, for De Reinhard was not a free agent at tlie time of this conversation. He could not escape from the hands of hii enemies, because Fort William, the only outlet from the interior country, was in their possession ; and, if this wan the case, how can it bu said that be was free. If he was not in the possession of freedom, then, no avowu! * " Dans le billet je lui priois de m'attendre, dosirarit d'avoir de In? ** dee iuformations sur ce que s'c-toit pas?c dans la Riviere Winnipic." 78 ve tue in- tbat h« mtj have ttaile can b« produced ai evtdeoee tgainit him, agree* hbly to Engliih law. It ii dangeroui, extremely dangeroui, to admit as evidenfee against a priioner, what lie may have said under an impres- sion of feaf . I refer again to M*NaIly, the same chapter and section. ** These rules (says Mr. Loft, in his commentary upon Baron Gill)erts' " Evidence) reflect the brightest lustre on the principles of English law, ** which benignly considers that the human mind, under the pressure *' of calamity. Is easily seduced, and liable in the alarm of danger, to ** acicnowledge indiscriminately a falsehood or a truth, as diflTerent agi* ** tatlons may prevail ; and, therefore, a confession, whether made upon " an official examination or in discourse with private persons, which is ** obtained from a defendant by the impression of hope or fear, however ** $light the emotion is planted, is not admissible evidence,** and the reason for that (he says) is this, " for the law will not suffer a prisoner ** to be the deluded instrument of his own conviction.** In conclusion, I submit to your Honours that Fort William having been taken by the Hudson Hay people, to the knowledge of the prisoner, and a part of the same force being in poesesdon of Lac la Pluie, where De Reinhard was ; a place whence it was impossible he could escape — he was under con« straint, being in the hands of his enemies. Thus situated, I contend, finally, that not being a free agent, no confession which, under such circumstances, the Prisoner may have made, can be now received af proof against him. ' ' > jittorney-Genenl.'-^Thit argument involves in it two questions; whether certain places were taken to the knowledge of the Prisoner, and what influence that circumstance produced on his mind. My learn- ed friends, in arguing on the f^^rmer enquiry, assume as a fact that Fort Lac la Pluie was then taken ; whereas it stands in evidence that it was not taken tiii four days oflad, would compel them to make him a Prisoner. One of the learneu o^ntHeiron argued that he was not free at the time of m ,!| u^m 1! S*. 'I; '"!• ..ri#r f ^ making tire confession ; nppoiing that he *m under rettrflint, arcr not oonfeMions generally uiade by persons in custody P But he was perfbetly free, and I do think that if ever a strong case was made out, this is it The Prisoner meets a man with whom he has formerly served in the ar^ my ; upon meetin^^ Ihey shake hands, enter into conversation, and, nn* der perhaps the influence of conscience, he voluntarily confesses the per* petration of a murder. If this is not a free confession, I do not think it will ever be possible for one to be offered as evidence against a Prisoner. Relative to the letter and proclamation about which so much has been said, I do not perceive that they weigh at all on the case. The procla« nation contained no general pardon^ on the contrary, it called upon all persons to be aiding and assisting in bringing to justice those who had committed offences. We think the argumerim of our learned friends abundantly shew the danger of departing from what I hnd the honour to enforce, in opening as the leading, and indeed the only, principle on which the confession could be invalidated, and I again oficr it to the Court The only circumstances that ran prevent the confession of a prisoner from being made evidence against himself, are, that it can be shewn to have been made under hope, or fear, from direct promises of benefit, or menaces of danger. On this opinion, we think, we may firmly rely » law ; and it being distinctly proved that this was a /ree and vo/uTi/arv confession, it mu^t be allowed to go to the Jury. It may be naid, lit tlioughl it v/ould make in \\\% favour if he confessed, or that he imagined it would be tcorte for him if he did i\ot^ but his imagination i»not to dcs* troy this evidence. He might choose to imagine the world would eood be lit an end— there is no answering for a man's imagination — but that is not to set aside a deliberate act. Once admit this to be sufficient to set aside a confession, and there never will be another proved, for all that a prisoner will have to say, on his trial will be, that when he made his confession, he imagined it would be better for him. Your Honoun know that persons are frequently prosecuted upon their confessions, deiti* Lute of any corrobox^ating circumstance, yet it being satisfactorily proved to have been made freely, conviction has followed ; but, that never would occur again, if a pk'isoner were allowed to turn round and set his confet- sion aside by saying, that at the time of making it he thought it would be better for him. i^ut evenihis was not the case of De Reinhard, it doei not appear that he thought it would be better for him. On the whole, •onsidering the circumstances under which it was made, we contend it is a good confession in law, and that we are entitled to have it received by the Court, and submitted to the Jury, who will give that weight ts It which they, in their consciences, consider it to desisrve. ChitfJuftict^SewtU.-T'Qa all testimony offered 'n » Court of justiei. 76 ;)ourt of juBtie*. either io ciril or criminal eaie*, two queetionf arise : jifsl, whether tbi Court can legally receive and permit it to go to the Jury ; and, $tcond, whether the Jury ought to believe U ; and this is applicable to conrea* sions in criminal cases. We have at present to enquire as to the first point, and, that the decision of the Court upon it may be clearly under- stood, I will, before I go Xurther, Mate a case. A highway robbery was committed, but U was uncertain by whom : a man in company witli some others, dropped some words which excited their suspicion, and they toolc him before a magistr'ate, before whom he admitted irimself to i>e the felon, and related the circumstances of the robbery ; he was com- Bitted to gaol, to await his trial ; upon th« trial, his confession was proved, and it being voluatarily made, without either promise or men- ace, it went to the Jury. Upon his defence, however, it was satisfacto- rily proved that at the time the robl>cry had been committed he was at a great distance, and that he had made this confession to enable his bro- ther, who had actually committed the robbery, to make his escape. Now in this case It is plain that the confession was lawfully evidence for the Jury, although it was destroyed by subsequent evidence, proving an a/i6t, for that was the result of the Jury giving credit to the additional testimony which directly contradicte4 the confession. Let us exempli- fy tlie distinctions of the present case. Had the qaestion been, whether testimony to contradict his confession could be received, we should say, yes. If it was whether the confession, after being disproved, or rather negatived, should yet go to the Jury, we should say yes, for we, sitting as judges, have no power to prevent the confession from going to tho Jury, if there is no proof of a direct influence having been resorted to by some person in company with the accused, such as holding out an expectation of punishment, if not made, or an expectation of benefit, if made. It is in such case* a question of credibilUy upon eontradietorjf testimony, and who are to decide ? why unquestionably the Jury. But when a direct influence has been clearly proved, upon an examination, ur on the roire dire, judges have said, this shall not go to the Jury at ail, because it is not evidence, and they shall not be exposed to the in- Suence of statements, which are not admissible as evidence ; but the in- fluence has been apparent before any judge has exercised his authority io thui extent, aad neiiher myself nor my learned brother know any caste in M'hich the principle has been carried farther. We admitted the confessiun in the present case ia be gone into, for what else could we do witii tl»t which was evidence according to the strictest rules of a Court of law. Yet we do not, by admitting it, say that it is to be conclusive, or that it cannot he contradicted. If you have evidence which goes to that, it must be admitted ; the case I have cited clearly proves it must ,M{f t'^i % ' i *■ I ■•A if *■! I! ^r^ %^ !!] i!;''! ^r 76 ':^= be tdmitied, it ii your r^ht to htve it rtoaived, an^ tlwt right ihall U preierved to you. Wiien teitlmony ii olTtred to do away a confcMion that ia already in avidenpp, if it be atlced who are to be the judgtn of that evidenee? who are to deeide what is the eflSect produced by it? we answer the Jury^ the Jury undoubtedly, but if the evidence o(fcred ii that of a direct and immediate inOuenee on the mind of the Priioaer, the confeaaion not yd being in evidence, then the Court are to decide. The evidence you oflbr to prove (from a luppoied influence upon hit mind) that his confeaiion ought not to go to the Jury, it remote, very remote, indeed ; too much so for us to say that it ought not to go to them; they will give what credit to it they think it merits, but it ii trenching infinitely too farupon their rights, indeed it would be usurp* {ng the peculiar province of the Jury for us to deeide upon the merits of the confession, which we consider we should be doing if we acceded to the desires of the Prisoner's pounsel. The l^st time this subject wu before us, you went no farther thaq to the general enquiry, whether the Prisoner, at the time of malting the alleged confession, hnew of the capture of Fort William* and, upon that question being answered, ths compromise, (if I may use the expression,) was entered into by whicli the trial closed- Let me beg the gentlemen concerned for the Prisoner to recollect, that to facts which bear in any %vay upon this ease there can be no objection, but a detail of all the fapts connected with this It* mentable quarrel between the Hudson's Bay and North-Weit Coropa* sies, we can not allow. As a foct, (though I do not pee that it can in any way a^ect the case,) yoii may prove, if you wish it, that Fort Wil- liam was taken possession of, and that De Beinhard knew it before he made his confession* But as to Fort La^ la Pluie, you can not give evif denpe that it was taken, till you contradict the present witness, wl^o swears that it was not taken possession of until four days afUr the eon* fession of the prisoner, and that bis information given at the time of making the confession, suggested the necessity of its being taken as s measure of self preservation, as is alledged. Mr. Jutliu Bpteen- — The argument we have lieen attending to ^ai arisen from two questions which the counsel for the prisoner eonsicLer it their duty to insist on putting to the witness. Captain lyOrsonnens. We considered the circumstances under which the confes^on wai made as so fair, that we wercbound to admit it, and accordingly receif ed it as evidence proper to go to the jury. A fact has come put in the cross examination, iiamely, that Fort William was befitre^ and at the ftme, the prisoner made his confession, in the possession of the Earl of Selkirk, it therefore only remains to enquire whether it was «> to ths knowledge of De |lef.i|hard, and how did it influriice l^s eonfession ? ths 7T • - ' (»Bi \t elearty and dffUnctly in evidence, and the infermee Um CMnial for the Priwncr with to draw from this fact, in conjunction wiili what pasfed at Fort Lac la Pluie, (wbicli I ahall praaently advert to,) ii, thai It ought to exclude hit confetsion. By the gentlemeD engaced In the defeoce, the qjueition does not appear to have been Men in /we pointi lo which, I confeM, I have, from the Arit, leen it. FtrW,- That the cir^ cumitance of Fort WilliaQi being taken wu .not itrong enough to in- fluence him to confess, end steond, that, in the nature of things, if all it true that has been Mserted, by being eileiU he had another chance f)f efcape, for it appears to pie to be an aiBt of madneas to imagine, liiat by confeiisiag to his enemies, (as they are described in the argq» mcnt to be,) his condition would be bettered. Relative to his being « prisoner, the evidence of Captain I>'Orsonnens poeitively contra- dicts the assertion. Captain IVOrsonnens says that 4s was there as n simple individual, and that an armed force followed him at a distance, but did nothing for four day* after the confession had been made by the Prisoner, and that wh»t was then done, so far (rom infiuencing the confession, W98 iitggested by it, and that De Reinbard confessing he had committed • nuirder, induced him, in ipbedienee to the proclamation of the governor, to make him a prisoner. Except you mean to say thai tiie events passing in that country were such, that a rational being would confeM, or rather accuse luma^f of a crpme that he never committed, I do not see the bearing of your questions. It will be for tlie jury to deter- mine whether they were so, and upon a cross examination it would be wrong to shut out any facts w|)ich may lead to that conclusion ; but it it only fact» that can be .admitted, and t^ose only that took place preirioua to the confession, and I am free to confess that I ^o not see the bearing ,even of tjiem. I do not see vhat e^ect the capture of Fort William H to have on this caw, but it is a faipt, and you are entitled to have it np^ ticed if you think it important. Crots-exa^in/Uion continued by J^lr, Sttutt. ^■K^'' MrMwrt.—'J)i^ Lord Selkii-k and his people take possession of For(. William and wktn ? Caplttm jyOrsontiens.— Lord Selkirk and hia people tooV poasessio^ 0f Fort William the thirteenth or fourteenth of August, 1816. It wet on the tliirteenth that his people entered the fort. Mr. 8tmrt.r-'Dii he take it with the content of the. people who oor cupied it, or hy /one? Yon speak of poMMMon as if it had been vo1un> ta!ril;r pvefi to my |^ord-<-teII us the fact, juit yes or no. ' If r. !:■ !':■• ! i/l iM ^li li 76 ^ Cap/oin D'OriontMYU.— I consider thai he took it by neee$iUy In tin execution of hiiduty u e maf^iviifiU. Mr. Siuart.-^l want a direct auvwei: to a very pMn quettton ai to i inatter of fact. — QiMilion rtptattd, Caplain jyOnonnent.—l «onaider that he took iiby force, of right (arte raUvn) or by neceulty. Mr. fihiar/w— We do not, CapUin IVOrionneni, aik your opiniok of the jtM/tM of the upture, but a simple direct answer to a mailer of fact. Watt or trat net, Fort \¥ill!(im taken poMession of bjffww ? jun fay yes or no, aooording to your knowledge. ' Caplain J>Ortonnens.— -On the fourteenth of August, or about that time, Ijord Selkirk took possession of JPort William. •• ■•^. ■ Mr. ^tuatt.—l wish that to be taken down, I will now ask him,- Was it taken byybrve or voluniarily given op ? answer just yes or no. Captain D'Ononnen«r-*I consider tliat he took it by forecy but b; Qccesf t'/y, in the execution of his duty as "r*" Mr. iShiar/.— Wo do not want your opinion as to why it was takcu. I beg iiiat the witness' answer to the feet, namely, that *^ he c^nsidereil the fort to have been taken 6y/orce," may be inserted on your Honourt' notes. His opinion ps to the neee$»ity for so taking it, is not evidence, and, of Gonrsa, witi not be taken down. Chief Ju$tiet £Eeu>e///^Is It of your own knowledge that you say this ? Captahi D'Orsomiens.— Yes ; I say of my own knowledge that the fort was taken possession of by my Lord Selkirk. I was there in the execution of my duty, and ■— — nr . - « [The Chief Justice apprized the witness that he was not bound to ftuswer any questions implicating his own conduct, and that the Court would protect him in revising to do so, and added, — I do not. Captain IVOrsonnans, mean to intimate that answering would expose you to any unpleasant consequences ; but that you may not bo taken unawares, I shall put the question again, and, in the exercise of your own discretion, you will either answer it or decline doing so as you may think proper.] (The question being repeated) Captain D^Orsonnens. — 1 say that from my own personal knowledge. 8olicUor-^Gmei:al.-f~l beg the Courtis pardon, but I do uot think tlie witness understood the question. In point of fact he did not Kee Fort William taken, he only il^eard of it, and therefore it cannot h^ evidence. Might I beg of your Honour to put the question to the witness, whethei Fort William was taken possession of by force, or even at all to hisoaa proper knowledge. His Honour the Chief Justice agaia put the question, and Captain lyOrsonnens commencing his reply '* I iBonsider" was interrupted by — (!!'■' Mr.SlMtli-^l have rapeatedlf put a very simpto qdMtion, yoo hav* aniwered it by giving ytfur dpioloni al to wiiat yon call tlw necunljf that cxiiled for talcing it ; I want merely the fact— yon may deelint aniwering tUe quettion If yoo think proper, but if you aniwer it, let me beg of you thnply to lay yet or no. Do you know that I wrt Wil* liaiB MTAt iaken posseuion of by foree by the Earl of Selkirk P limply. yes or no. Captain D*Orioftneru;^No« Mr. S/iiarf.— Let U>e aniwer bo taken down if your Ho«oun pleaM« M, apon the defence, we shall have occasion to refer to It. Chief Jufltee Setoe//^— The simple point is, did Or did not Captaia D*Onoantns $ee the fort Iaken bj/f one? ' :^ Captain D^Ononneni. — I could not say simply yes or no, consider* ing that if I had so answered, the criminals might perhaps appear to be innocent, and the innocent might appear guilty. I sonsider that the fort was taken by force, but by nr ty, that is my belief according to i^-iiat I have heard. «... Chief Justice Setcett. — We must have the fact, whether of your owtt knowledge, you speak of its having been taken by force. Did you, 8ir, see it taken, or is it merely from what you have heard that you speak of Lonl Selkirk's mode of obtaining possession ? Captain D'Or$onntns> — I did not see it taken possession of. ' ' ^u, ■ * Cross-examination resumed by Mr. Stuart, < i'M k;**, *J mii iff Captain D*Ononnens.— 'I remained there till the 10th September, and Lord Selkirk and his people were then in possession of Fort William, but what length of time they remained after that I know oiUy by hear- say, because I did not return thither. I dispatclied Noiin ' ad M'Do- nald before me to Fort Lake la Pliiie, with a cote addressed to De Reinhard. By this letter I requested him to wait for me to give mo informaticn, or intelligence, of what was going on at Red River and in tlic River Winnipic. My letter was signed as I ahvays signed my name " Captain D^Orsonnens^" It is probable, and I believe that I added " commanding the adraneed gxiard qf the voyageurs of the Hudson*$ '* Bay Company^** or something similar. I wish the Prisoner would produce the note. ,^^^ ^^^^ .,^, . ,^ Mr. Stuart.— yfas the paper to Mr. Dease of the 6th, signed in the someway? , ,,^,, Chief Justice Sewctt.—The Court arc decidedly of opinion that it b impossible that they can permit you to go into an examination of what *ook place subsequent to the confession. .-. ,., « IMAGE EVALUATION TEST TARGET (MT-3) .5^^% 1.0 I.I 11.25 Ii£|2j8 |25 Ui iiii 12.2 ui lli •yuu 1^ IllUi^ 6" Photographic Sciences Corporation 23 WIST MAIN STRHT WEBSTiR,N.Y. 14S60 (716) 872-4S03 ) 4' .4^ s m 1 1 ') I t 1 iff. 8tueirt,^l ihottlJ inSagine I might put iintA qoMtion Uf ete^* bility. €ftpta1n D^Orrannens has said that he wait there as a timpk individuoL If I turday I apposed it by remarking, that it was no nolanner of consequence fteie the receipt givefn to Mr. Dease Was signed, as it was given tvibse* fuent to the oonfesslon. " . ■ . ■ . I - ■ . ' ' CtostHX$ntinati(m teMhed by Mt. Stuaft, '■^k w Mr. Stuarte—'Did you tell Mr. Nolln or Mr. McDonald to dtrest the Prisoner ? Captain D^Orsmnent.'^Vo t not at alh I told them to detain him, I think* ^ Mr. Sftiar/.— Detain or arrest? (Detenir au arriter.) Captain iPOrtonnaui^Vloi to arrest (arriter.) I cannot say whcs< ther the note was, to reqiiest him to wait for me, or, to order him to remain for me, as I was hurried at the time. TTlien I gave them ths note I told them to induce De Reinhard to remain there and wait for my arrival ; and, as I knew the good disposition of the Prisoner, I was convinced that when he saw the proclamation of Sir John Coape Sher* 6roolke, and received my note, he would remain. When I was going to talk with De ReUihard at the fort, there Were some men who followed out of (finrlosity* I arrived at the fort of Lake la Pluie with two men, who were armed, and I was armed myself. The others followed a good way off, and I cannot say whether they were armed or not. I never said to any person that I expected a remuneration from my Lord Selkirk nor from the Hudson's Bay Company. I advanced money to Lord Scl« kirk's people and to those of the Hudson's Bay Company, on account of wages out of my own funds, and I have since received back tlie amount, thirty>nine pounds from Mr. Gardeti^ in one payment by a check on the bankt I did not say before I came to the Portage of Lake la Pluie, that I had taken Fort William, or that I had taken oilier forts, and that % would also take that» I do not remembtr to have said at Red River to any person that I was not my own master, and that my departure depended upon Lord Selkick, but I may have said so. I bad a flag lioistei] before my tent at laMt la Pluie. I had no artillery moniiied till after De Reinhard bad made his declaration... Qnthe iSthor 6lh of October, Mr. Vitcbie brottght oH two istnall piecei of artillery from the portage, which ii a mile and a half di&tant from LdiQ;l4 Pluie* I fully explained to De Reinhard that the men who were tvkh'ffie'.were boC en^ged in a military capacity, but as colonics for Biled:Blyer ; and, if they declined taking lands at Red River, they had the Hght of retudrning to Europe by way Of Hudson^s Bay, or of Canada^ at their option. JL iiaid to the Prisoner after his declaration, (and it is very posuble 6^«re the confession,) and to Mr. Dease^ that I considered that the people of the North'West had committed a great cime in destroying the Red River colony, and that I Considered the people who had been active in destroy- ing it like rebels, or even that they were in fact rebels, and that that could not pass without punishment. In the same conversation 1 matf have said that I expected reinforcements of colonists to go up to Red River, but I did nof say that Governmint was going to send a large (brcethere. ».;, >^ .. • . . j . . tOlJlS NOLIN, Sworn, .1' -i-i tn,-."^ -^^ *!*, . .if.) v.nv.,aj 'l''.v'!\rui*-;"-' ": *«, < .:-:>i.»;q *> i-j ^uiuu.i ^ [Mr. Nolin was now questioned very closely as to inducing the Pri- soner to make a confession ; he most positively declared that it was per** fectly voluntary.] He told me that *' when he was at Bas de la Riviere he heard Mr. " M'Lellan several times ask both Mr. Grant and Cadotte to kill Mr. " Keveny, but that they refused, and that he also asked the same thing *' of him, but that he too had refused. That after this Mr. Keveny " was sent away as a prisoner up the- River Wmnipic. That some m A:y II . ,' 1 i M ^ • , '«• aays after ke himself eihbarked with Mr. M*LellB)i, Grant, CftdbCte, "W tHd other per«on», to the number of ten or twelve, in a canoe, and «' that they also ascended the River Winnipic. That on arrivingat a " place ■ituatedasfaort distance from the spot called the Dalles they ** stopped, and afterwards that he (De Reinhard) with Mainville, and " the Sonof Att White Partridge, had embarked from there in a little " canoe to go where Keveny was, and thai their going there was with " the intention of killing Kevdny, because at that time Mainville had " come to si determination to kill Keveny. Tlmt they went to where "he was and made Keveny get into their canoe, and that when they ** had got a Httle distance, Keveny asked to land or to go ou shore, and »♦ when he was going to re-embark, Mainville fired his gun at Keveny •' and wounded him in the neck, and that be (De Reinhard) seeing that " Keveny was mortally wounded, ran his sword once or twice through " his body and finished him,'^— the words were '' and I finished him." (Je Paifini.) In- 1817, 1 eneamped about the distance of an arpent from the place where, as De Reinhard had told me, they had left Keveuy'i body. ' [In reply to a question from the Chief Justice, Mr. Nolin saidj tli&t having passed through thte Winnipic otice or twice before, he was able, from De Reinhard's information, to form at the time a good idea of the {^ot, * though h^ also admitted that De Reinhard did not tell him af what distance above the Dalfes, nor on which side of the river they left the hotly.] 4^, Solicitor-General.'^JM yo\X speak with the Indians about that place? Mr. Stuart objected that no conversation witir a third person in the absence of\the Prisoner could be made evidence ; to which the Solicito^ General repliedj he meant to ask him-, whether, according to gentral repute, this was liot tho spot where Keveny was kiUed; and- then shew tjiot at this very spot thtnmams ofabodjftc&refownd, which he thought were circumstances proper to' go to the Jury.- iJhitf Justice StwelL — ^You certainly may ask him on which side of (he river the remains of a human body were found ; but, upon the v^w testimony of a parcel of wandering savages, it is hardly worth while to have an altercMion about gene;ral repute, for what can it poimbly «• mount top; --h >>--'- ■ ;.^^.-{if.r .-■ Solicilor-General.'f'l submit to your Honour's decrsion, as on all oc« ill iti •■ii '"'■*■* The place where the body was left, according to the Prisoner') statement, was a small stony or rocky point ; but Mr. Nolin's testimony on this point being considered as not sufficiently precise, the Chief Juf tice put the question referred to above. «;v ^j * ... .^^^.-. 83 tMiom it is my duty to do, but I eonnidered it a strong eorroMi^vt circumstance, that at the spot where, according to general repute, K^^ veny met his death, and was, according to the Prisoner's confession, left, the bones of a human being were found. I ihaH proceed to examine the witness relative to the bones. [Mr. Stuart objected that the evidence wished to be produced by Mr. Solicttor-Oeneral was inadmissible as it was, that sort of evidence which might prejudice, -but could not enKghten those who were ultimately to decide the point at issue. Tttl (said Mr. S.) evidence is offered that these are positively the remains of Keveny, which, I imagine, with all Ifae ingenuity which my learned friends possess, they will not be able to do, I should hope that your Honours will not suffer them to go into evidence which, I repeat, is only calculated lo prejudice without en- lightening, and therefore, in my liumMe opinion, ought to be most scrupulously kept from the Jury.] Bolieitor-Omeral. — I think we have shewn quite sufficient to entiUe IIS to go info this evidence. The confession being admissible evidence, I imagine thai any thing having a tendency to corroborate that confes- sion, mupt also be admissible. — The question then is, does the finding tiie bones of a huidVR being at the spot where the Prisoner stated that Keveny was left by those who committed the murder, and which com- mon repute fixed as his burial place, do so. I contend it is admissible evidence ; and, I believe, there will be but one opinion what weight it ought to have. Mr. Vanfelson said, the officers of the Crown ought to prove that Mr. Keveny is rr ally dead before talking of his bones. The first ques- tion ought to be,—" Had you any knowledge of Mr. Keveny ? do you ** know whether he is dead ?'' If the witness answers yes, then, if you can, prove that this is in fact the body of Keveny, for the confession is not sufficient, and I produce the authority of Judge Hale, P. C. 284, in confirmation of this maxim. '* I have often known the prisoner disown " his confession upon his examination before the Justice, and be some- " times acquitted against such his confession". — There is a case exactly in point : in the hope of pardon a confession had been made of a murder, and upon this the accused were unfortunately executed, whilst some years afterwards the man was found to be alive. If the Indians told the witness that Keveny had been buried here, I submit that these Indians would be the best evidence, and that secondary evidence should not be admitted until the officers of the Crown make it appear that these In- dians are not within the jurisdiction of this Court. The Chief Justice remarked, that every case of law must necessarily tura upon its own peculiar circumstances ; for example, a murder Itavr '^mw^ > :' ) i, Mm Wi^ •'■■« ■ •It::' 'Hi' .j ..MKl Vf ■"■■'■fe .m :.'. % , al ¥ <' ' .,W ,11 fj: I- m Bl9 'U C4 ' -^^ ' ing been committed in a populous city, it would certainly be a very iiispiciouB circumstance if there was not produced tliat positive testimony , of Uie deatii wbicli results from the body having been seen and recoi;. nized stibsequent to the death, but, in a forest, remote and extensive )ike this, we ought not to expect that exactitude of proof; and, thus sitoatei), we are compelled to resort to secondary evidence and abandon the primary. His Honour proceeded, the rule undoubtedly is that le. condarjf evidence shall not be admitted if it can be fairly inferred that belief migljt have been produced, but here is no probability shewn on the part of the defence that these savages were known to the officers of tho Crown, or that by any exertion made by them, they could have been found. After three separate confessions of murder to three diffe* rent persoqs, the Prisoner at last points out the spot where he says the body was left. It is wished to Identify that at a place, which, at the time De Reinhard described where the body was deposited, the witness supposed to be the spot, he subsequently found a dead body. If the body 80 found can be proved to be of the size of Keveny,- or that there are any other circumstances leading to a belief that (t was the remains of Keveny, they may at the back of these several confessions perhaps be considered as strengthening the case. Though the Jury should infer from the evidence offered by the Crownofficers that Keveny it dead^ it does not necessarily follow that the Prisoner at the bar killed him. The evidence, at t^e utmost, can go for nothing more than perhaps to lead the Jury to infer that Keveny is dead. Here is a fact that a body was found ; what additional circumstances connected with the finding there may be, it is not for us to anticipate, but the present is, I think, a fair question, and my learned brother agrees with me in opinion. [The £](amination was resumed by the Solicitor-General, and Mr. Nolin detailed the finding itt the spot, which De Reinhar^ had describ* ed, (on the left band of the River Winnipic, in going towards Lake la Fluie,) a quantity of bones, which to the best of his knowledge were those of a man. He stated that he saw the arm and leg bones, and part of the scull, but be could not say whether they were those of a large man : Also at the place, there was a small wood^q cross to denote that the body of a irAiVe man was there. *' The Attorney-Grneral wis^ied to be permitted to go into evidence and shew that according to general report, these were the bones of E^ veny, but it was overruled by the Court as being ^either proper nor ne- cessary.] - : . . _ ■: :.. , , .,.. , ' -, ^,. , ;:,,..»s^"!«iv '-.^iJ,.-.. ' The Court adjourned for half an how, Mr. NolinU word beipg taken that in the interval he teould not communioale with any one on th^ tubjest M ofiiiis trial. The Court having rc-assemhhd, the Jury were called and being present, Mr. Nolin teas again called and cross-examined by Mr Yavfdson. • » i Mr. Nolin confirmed the former testimony relative to being sent on by captaiti D'Orsonnens and in company with M'Donald, and continu- ed: In the canoe with mc and M'Donald, there were five others, of whom three were armed with American guns, uhich are of a larger bore than hunting or trading guns It was Mr. M'Donald who deli- vered captain D'Orsonncn's letter or note to De Reinhard at the fort of Luke la Pluie, and I was with him. I entered the fort accompanied only by JMr. M'Donald having left our men where we bad passed the night. I did not see in the fort and about it, more than seven or eight men, perhaps nine. I arrived in the morning, and Captain D'Orson- nens arrived (as I believe,) in the afternoon of the same day. — I went with De Reinhard, Sayer, ani| Roussin, to meet him. I was then iqi the service of the Hudson's Bay Company, and M'Donald also. I do not Icnow that Captain D'Orsounens always said that he was not in the service of the Ilndson's Bay Company, or of my Lord Selkirk. I be- lieve that he w^as there to view the country, as a companion to my Lord Selkirk, and that his idea was to go no farther than Lake Superi- or. I believe he wore his sword. He had no uniform — it was a grey great-coat that he wore — an old niilitaiy great-coat. Captain D'Or- sonnens came to the fort alone, but from the fort we could see the per- sons who bad accompanied him encamped at some distance. Mr. Sayer and I talked in De Reinhard's presence of the differences between the companies. I recollect having, heard De Reinhard say, before the ar- rival of Captain D'Orsonnens, " that he was sorry my Lord Selkirk had " taken Fort William, because his equipment was there.'' I remember that when Captain D'Orsonnens arrived he said, that several gentlemen of the North- West had been taken and sent to Montreal to undergQ their trials, but 1 dq not recollect that he spoke of treason, or of rebels. I never knew Keveny, and I never heard him mentioned before tha^ time. There are several graves ou the banks of the River Winnipic distinguished by crosses to indicate that they are the graves of the whites. Where I saw the bones I saw only that single cross. There are no falls there, and they are generally in places where there are ra- pids or falls. The body was not interred, because there was no soil there, it was only covered with branches and leaves in the Indian fashion^ In answer to a question from Mr. Justice Bowen, . .'.v>si ,». vt, L The Indians generally bury their dead very deep in the ground, fivi; pfsixfcet. .^;.r,,.jvi •• ■\:,\'-: -> r^ - '•■;•-/-'%?%;•%/■■,<'.■■ ■i''. ii 4 :• j ' I H m m «1^:.x V'„ y..». 89 JACOB XaXCHIE, Sworn. , : Examined by the AUorney-General. /oeoifr Ft/fAie.—* I have been in the Indian Territories. I arrivetl at, Ihe portage of Lake la Plujje three days after Captain D'Orsonnens.— At the time of my arrival, I)e ]Rein]t^ard told me, that he was a prisoner on account of the def^^tb o^ Keveny. In tb^ evening I heard liim myself «ay to the me.Q of our br^|j;ade, .that he knew of the death of Keveny, and he related how that event had taken pl^ice^ tljiat he had received or< ^ers from Mr. Archibald M'Lellan to kill Keveny. [The Chief Justice remarking, that tbt^ evidence w^s not admissible as it was iqapossible the ^yit^ss could say thai no undue infl^epce had ^n uaei^. The Attomey-O^nerqil observed, that be t)iought |t ouffici* f nt that the witness .inade no promiiie or use<^ any undue influence.] (Ihie/ fTustifX Sfifiellf—If yoif go to apy p^rjLipuIar conversation held |»etween a witness and ^ prisoner, it ;i|irouId be oil tj^ajt could be required ; J^Ui I cannot allow a witness to go into evidence of a gfneral statement inculpating the Prisoner, made before sucjb a number of people that it i.fi quite impossible the necessary preliminary questions can be answered HI- '? ■in ^/ / ■'- JSxamtno/ton conh'mied hy the Aitom^y-GeMral, Jatob rtVc^ie.— The next day I had a particular conversation witL him myself. He told me that he had been instigated by Mr. Archy. [Mr. Stuart objected that he was a prisoner at the time of tht fonversation, and consequently not in a 8itu^ti<^ii to make ^ny thing he night say evidence against himself. The Chief Justice qyerruled the objection and :he examination pro* ceeded/} ■'•" "^•' ' '^'*'' x* Jatob Titehie. — Dc Reinhard was not under arrest, he took his meals and slept with me, he went and came like the others, but Captain D'Or- sonnens told us to watch De Reinhard so that he might not escape. " Chief Justice Slew*//.— ^Mr. Yitchie, did you make any p<^mise or any threat to induce him to make the declarations which yoq are going io relate to us. -'^ •' •= ■ '■ -• w -' Jaetb Ft/cAie.— No, Sir, not any ; the Prisoner and I belonged for- merly to the same regiment, and we were walking together and I asked him how it had happened (speaking of the death of Keveny.) •7 [Mr. Stuart Wished the dMision of the Court, whether a eonfefsioti of murder, made under a state of illegal duress, was proper evidence to go to the jury. The Chief Justice remarked, that after a confession of having com- mitted a murder, it could not be UUgtU to secure his person, which would put him undoubtedly in' a state of duress or surveillance, but that thit case was abundantly stronger under the prochmation of £^tf John Coape Sherbrooke. The Court had got the whohs do^vn and it must go to the jury, who would give to it whatever degree of credit they thou|^t it merited.] Jacob Vitekie.'^Dt Reinhard told me that he h)id received orderi from Mr. Archy to kill Keveny or to cause him to be killed — ^That Xe- veny was embarked with him, (De Reinhard) one named Mainville^ and an Indian, in a small canoe in the river Winnipic, and that when they had come to a certain place where Keveny went on gboref Mainville fired his gun, and that he, De Reinhard, had finished him with hn sword to hinder him from suffering ; and he told me likewise the body was left on the beach. I saw on going up the river Winnipic, near the spot which is called the Dalles, a cross on some rocks, and our guide told u« ** that was Keveny ^8 cross." . / f } t( i^rost'txamination condxieted by Mr. VaUiire de Si. Real, Jacob VUchie.—l saw several crosses on the river Winnipic, they eccur from distance to distance, but not litre. In the place which is called " above the Dalles** I saw but one. De Reinhard told me that Captain' D'Orsonnens had sent a note to bin, bat he did not tell me what the contents w«re. He told me that he wtu a prisoner, but did not say when he had been taken. Captain D'Orsonnens told me that he intended to go to Smtzerland by the way of Hu(^70!i's Bay. He told me that he trav«lled oat of curiosity alone ; he dia noi tell me that he bad the title of chief. Every body was in the sertice of my Lord Sel- kirk and Captain D'Orsonnens commanded them. The Prisoner, on the third or fourth day after I saw him at the portage of Lake la Plnic, told me that M he believed he should be received a* King*s evidence^ that " he had confessed the whole to Captain D'Orsonnens, and that he was " going to do the same to my Lord Selkirk^ hoping to be received as King's *' evideneCf but he did not tell me that he had had any conversatioa with " Captain D'Orsonnens relative to such expectation." De Reinhard always took his meals with us and Captain D'Orsonnens. At table the gentlemen of the North West were frequently spoken of. The usual conversation of Captain D'Orsonncns and the others was, that their \} 88 111'; lujl' trade wai ruined and that their people were going to be sent pri«oncrt to Montreal to take their trials. OUtf Justice St//.— Was this said in the presence of Do Reinhard. Jaeob Fi7cAte.— Yes, I remember that It was said in the presence of the Prisoner. The Prisoner was known to be a North West Clerk nt the time. De Reinhard knew that Fort William had been taken by my Lord Selkirk at the time when we arrived at Lake la Pluic. One is not forctd to pass by Fort William in going from Montreal to Lake la Plule, but it Is the wual route ; one may go by Fond da tac without passing by Fort William. I knew the person named Heurter, who was then an engage of the North West ; he was supposed to be at Red River. Captnin D*Orsonnens said before de Reinhard that it was a pity such a good fellow as Heurter should be amongst rebels, and that he ought to be brought over. I do not know that Captain D'Orionncns gave orders to De Reinhard to write a letter to Heurter, but I know that De Rein- hard did write to him. Captain D'Orsonnens told me to write at the bottom of De Reinhard's letter to let him know that I was there, and for him to come to w as soon as we got to Red River, Chief Justide Sewell. — What is this testimony to tend to ? Mr. Valliere de St. Real. — I intend to prove that similar condtlct was also adopted to other persons, and that a part of the system by which the commercial rivals of the private prosecutor were attacked was by seducing their servants, and that the witness, Captain D^Orsonnens, was principal agent in so doing. The Attorney-General objected and said, — Admitting for a mo-< ment, what I by no means allow to be really the case, that he succeeded in proving that Captoin D'Orsonnens was a man calculated to seduce the servants of what the learned gentleman very ingeniously calls a comiAercial rivalry, what would it amount to ? How would it rebut a charge of murder? how set aside a confession made, confirmed, and re- peated over and over again by the Prisoner ? If it cannot be made evi- dence, why should the time of the Court be taken up in going into it? for what would it amount to if my learned friends proved that the whole of the lervants, of this commercial rivalry had been seduced by Captain D'Orsonnens? P Mr. Justice Betcen. — I think a nearer way of accounting for the conduct of Captain D'Orsonnens might be found. An old fellow sol- dier had, in his opinion, got into a scrape, and he causes a letter to be written, apprizing him of his danger, and recommending him to avoid the consequences by leaving the service of those who, in Captain D'Or- sonnens opinion, would involve him in difficulty ; a very natural thing, in my judgment, for him to do towards a fellow soldier, for whom ha 89 thefifhecl Kntimeiitfl of rci^pect', an act very fiir indeed from being eea« turable. Mt, 5fu«rf.— We are cliarged With the defence of the unfortuna^d Prisoner, and are conducting it to tlie l)est of our humble abilitiei. I am sorry that the more >. . jvated situation of the learned judge deprives the unfortunate man of the advantage which lie might have derived from his talents ; but, as he cannot aVail him'self of that assfsf anee, I do hope the defence will be left in our hands, and that we may be permtt- ted, without interruption, from any quarter, to contfuct it in our dwn way, as it is a duty suffi'^iently arcfuous, without his case being preju* diced by unfavourable remarks from the Bench. Chiff Justice SaoeU.—Iion*t say so, Mr. Siuari ; there can be nd greater odium tfirown upon a juifge than to cliarge him with prejudicing the case of an unfortunate prisoner. I beg of you not io repeat such a remark, a remark as unwarranted as it is unbeconliing. I cannot sit kad iiear such observations, and do not, I beg of ^ou, Bir Stuart, attempt doy thing similar. Mr. Sluarl. — I was going merely to state tlia{ I do think it exlremeiy tsscntial to bhew to the Jury that thitt waa the conduct of the agents of the private prosecutor on all occasions. Captain D^Orsonnens tells you ttia't iio was {here a private gentleman, a private traveller no way inte- rested in the af^iirs of the Hudson's Bay Company, or the Earl of Sel- kirk's views. We now wish to let the Jury know that this private gen- tleman, merely travelling for his amunement, employed himself in se*^ ducing and debaucliing the servants of the rival's of thai company who, whether he was connected with it or not, he was, by his own account, employed in assisting, by superintending the progress of nearly a hun- dred persons to thieir sittl^ments. It is, in my humbfu opinion, ex- tremelif important ; they are facts — what weight they may have on the Jury I know not, but, to my mind, they are facts completely at vari- ance with the testimony of Captain D'Orsonnens, who most explicitly asserted that he was in that country a simple individual, no way con- nected with the Earl of Selkirk or either of tlie rival companies, but in fact, a private gentleman, travelling merely for amusement. As evi- dence affecting the credibility of Captain D'Orsonnens* testimony, I cannot but consiider that wc arc fully entitled to pursue the course adop- ted by my learned friend. . r Chief Justice Sewell. — To a certain extent you certainly may pursue it, but not into a history of alt the circumstances of this unfortunate business. You may ask him did Captain D'Orsonnens give orders to De Reinhard to write to Heuvter. I will put that question to him. — The interrogatory being put — • • 3.1.- -. ^ M •^!.:t 1 MM ■ , 1;; i h': hi )h!l :ki> .t=li4 :\m. Ml 00 Jaeo6 Tt/e/iie.— I do not know whether Captain D*OfMttlAerii gave ordort for writing to Heurter, but he told me to write at the boCtom of 1h Rcinbard*! letter fur him, to come to us and to b^ ait Hed River. X .Kbw.. . ■ '.• .4- ' -'■ '- , < . , Crott-^xamination eontiriueJ* Jacob Viiehie.-^l wu at Fort William at the tloiA of tltt ^pture, on (6e thirteenth of August, 1316. ^ur^mon.— What rank did you hold? Jacob VUehie.-'l wai a clerk in the servite of my Lord Selkirk. The fort was taken by force, because they turnetf us out with our war* rant Stnd all. Thiere was in our party one man with a bugle, and some men who wei'e armed with muskets and bayonets. Some had red coats being soldiers lately discharged. I believe that De Reinhard knew that Fort William had been taken, but I do not kno^ whether he was ac- quainted with the manner in which it was taken. In the conversations of our ptople, they often spoke of the manner in which it had been taken before De Reinhard, but I cannot say for ctrtain whether this wai be* fpre or after the declaration which he madb to me. [Mr. Yalliere was about asking the witness whether it was not taken with cannon, to Which the Chief Justice remarked, that as yet it was not brought home, that their conversations took place befbre Db Rein* hard made his declaration, and that although it might be material to prove that the fort was in possession of Lord Selkirk at the time, it could not be necessary to shew that it was taken with ecinnon, or Im it was taken^ ,.. . t M ! UK-:.. J: Cross-examination Resumed by Mr, VaUiere de St. Rial. Jacob Ft/eAte.-— Captain D'Orsonnens said befortf De Relhhard, that in consequence of the disputes between my Lord Selkirk and the North West Company, or in order to settle those disputes he was, if it was ne* cessary, to have troops from government, but I do not know whether he mentioned any number, or whether it was befbre or after the decia* ration which De Reinhard madb to me. I have known Do Riembard for a long time, he was much esteemed in our regoneut. ' ' " MILES MACDONELL, EsaufRE, Sworn, Jnd examined by the Attorney-Ginerat, '>" ell'— 'I have been in the Indian territory, Owen Keveny; he passed the winters of 1812 and 1813 witb me at Be«I ti Mr, M*Donell.—I have been in the Indian territory, and I knei^f 1> , f . III s 61 lUver. I never knew but one person of that ntme, nor indeed otiHui ot Keveny, I io not know that it wm exactly Indian territory where I re« ii i. * f. :^ m V ..Is m 'Vi'lSiiS) .i"i ,.M '11 u ., 92 pose the Prisoner to be superiour to Mr. Keveny in point of strength, i have heard that he quarrelled with the Hudson's Bay people he brought out, but I saw nothing of it. He was not, I think, more likely to quar- rel than o.ther people. I never had any difference with him. I put up a cross at the place where I found the bones ; there had been a stick with a wifp of straw across it according to the Indian manner. Crosses are generally put at rapids where people, meeting with accidents, are buried ; but here are no rapids, and I saw no other cross hereabouts.— I left Fort William to go to Red River on the 15th October, 1816, and about three days after, the Prisoner joined us where we were encampei). He came to my tent and we spoke together about affairs in general re- lating to t^e North- West. He told me afterwards that he was a Prisonn «r, but he did not appear like one, as be had a gun and ammunition anil a shot bag on. We spoke of the affairs of the Savage Territory general, ly, and amongst others of the massacre in which Governor Semple fell, together with his people, by the North-West Copapany. He then said that he also had cdmmitted some crime, and was then a prisoner on hit way to submit hinaself to I^ord Selkirk. I told M"^ that he had not much to appre|iend» as I supposed he had not been guilty of such hein- ous crimes as the massacre at Red River, upon which he said that be a]. so had killed a man belonging to lu, and asked me pf I would permit him to name him ; I said yes, certainly, and he named Jfr. Keveny. He said Keveny, not Otren Keveny. He said that Keveny had come from Hudson's Ray, (he appeared to speak with regret (or what he had done,) and that ^e went with a warrant from Mr. ArehUfal4 Norman M*Leod to arrest ^f r. Keveny, and having done so, be brought him to the mouth of tl^e Riv^r Winnipic, where Mr. M'lieod issued the war* rant, but he ha4 previously departed for the north* Re said, that at the time of taking him, Mr. Keveny refused to obey the warrant, and there had been a scuffle, an4 t|iat the Bois-^rules who were with him would ^ave killed Mr. Keveny, but that \ie prevented them, saying, that lie could manage Keveny himself. Re went on to tell me that Keveny was afterwards sent off for Fort WiHiem, an4 that some days after hiii departure they received news at Bos de la Riviere, that Fort William had been taken possession of by Lord Selkirk, that thereupon a council was held, at which it was resolved to despatc]i Mr. Keveny rather than he should join Lord Selkirk. He (De Reinhard,) said that he was prC' sent at this council with Mr. M^Lellan, Mr. M'Donell, Joseph Cadotte, Cuthbert Grant, and some others, whose names I 4o not now recollect, and that they divided his effects between them at tbii* council, but be did not mention what part of the effects he had. He further said, that they represented to him that the deceasied was a rebel and that all the persouf '-^.- 93 ^tuplpyetl un^er my Lord Selkirk were rel^iels, and were acting agatns^ een iqisled, and that it was through ignorance that he had doQe it. ^/orne^-Gren^ra/.-- Did ixf. tell yqu where Keveny fell, and what tliey did with the body. ^ v. .*..,. Mr. M^Donell. — He told me that Mr. Keyeny fell just by or upon the canoe, just as. he was going to embark, and I do not recollect that he told me what they did with the body ; I think he did not. .•. jvif! >;*'.;• .>p; r -v.; '■•• _.- ■■ ' ' " . '-,' ..■ ,. / ..... ;.■. -.;.;'. Jt bepng $ix cl'dock, the Court was adjourned until to-morrow at eighty A. M. Tke Chief Justice admonishing Mr. M^Donell that lie must not bold communication with any person on the subject of the trial. .'■ -.' ': Yf,/Jiv::o -** ',- "j. k r * If you have a wish. ■ U^-.J < !■ I! f i:*r' Tuesday f 2Gth May, |8]|&. ;ii : ■ ;{. PRESENT AS BEFORE. JTie ^ury were called orer, qnd frying a/^ present MiUs M*Dittiell^ ^upMire, was erost'txamined by Mr. Stuckrt, Mr. M*DomU.-~-I cannot meat that the bones I saw en haut dtt Pallu were the bones of Keveny, por am I suffijcient anatomist to know ^be bones of a man five feet ten or eleven inches, or to distinguish the jbopes of a man from those of uieoman. I could ^stinguisb the bones pf r. very largfi man from those of a tfftall oi|e ; tjiese appeared the bones pf a piiau rather above the middle size. I do not fepoHect that De Rem* hard sail) where it ivas heI4, but he told ine who were |it the council— viz : Mr. M'Lellan, Mr, M'Doneil, Mr. Grant, Mr. Cadotte, and oth- prs, together with himself. By Mr. M'Donell, I mean Mr. A^e:fx^nder: M*DpneUt a jMtrttur of the North^Wtst Company. An^ I am sure the ^risop^r told me that he (Mr. M*D.) was at it. Chitfjtutiep fihoe/A— Are you sure, Sir, that the Fjnsoner toW yoq it was Alexander M'Donell. i *" Mr. MWmeU.•^^t told s^e it was Alexander M'DoneH, a partner In the North- West Company. I was made a Prisoner by t)ie North- Vest Company fn 1515, and taken to Montreal. Mr. Keveny went to England in the autumn of 1813, and I have not seen him s|nce. * I npver considered myself in the sprvipe of the Hudson's Bay Company. I heM a commission for judicial purposes in a tract of land ceded by the Hud- son's ^ay Company to tlie Earf of Selkirk, it being a right they have reserved, iwid I was Governor there. The Hudson's Bay Company have also reserved the judicial authority over this ceded territory to them- selves. I am principal agent to Lord Selkirk in the Indian territory, /and have been so since the 10th or 12th of June, 1811, which is the date of my commission. I had in my possession (but Iiave not at present) a warrant for the arrest of Keveny, which I found at Fort Douglas, I sent it with other papers to my Lord Selkirk. 96 i^REDEillCK BAMIEN HEURTER, SworH^ And examined by the AUormy-GeneraU '■>'M Hturter.—'l was in tlie Indian territories m 1816, in the tcfrvide ot ibe North- l^est Company. I was formerly a sergeant in the Metirotf regiment. I saw Keveny's baggage at the fort at Bas de la Riviere ; I received it from a Canadian named Wells, and an Indkn called! Josephs The trunk which was marked " Keveny" ^— [Mr. Stuart fnterrupted the witness, Jaying, this was not evidlttttce, ibe Chief Justice replied be had not taken it down.] Heur/er.— I received a; letter from the Prisoner, but I havt not got it here. Ct(ns-examinatUmt • v, ■->*>, ; -. -. ■ . ,!;•:: Heurter. — I have never been employed in the service of the Hudson's Bay Company or of my Lord Selkirk, or of any other person, and I have not received any salary from any one whatever. After De Rein- hard was in prison at Montreal I went to see him I believe two or three times. I do not remember any mess^e ulitch I carried to him ; and, as far as I can recollect, I did not tell him that I was entrusted with anf ^^esFage. ^ . , . m :^ 'n W v.\ . lii i: .SEJ Mr. Stuart.-— "Lei Lord Selkirk be produced. Attorney-General. — I proceed with the examination, and when I produce the paper to make it evidence, the learned gentleman can object. Dr. Allan. — I attended the Earl of Selkirk as a surgeon. I never acted as clerk to him. Lord Selkirk was a magistrate in the Indian Territory at that time. I was present when De Reinhard signed a pa* per drawn up with his own hand. I understood three days before, that he was drawing up one, and he told me at the time of signing it, that it was his own hand-writing. I was present when thte Prisoner gave the paper to Lord Selkirk, and there was nut any promise or threat made use of. De Reinhard signed the paper, and then delivered it to Lord Selkirk, and when it was delivered. Lord Selkirk asked him whether he wished to add or take away any thing from that paper, and be said no. Mr. Stiiart.—'l object to this as going to prove the contents of a pa. per by evidence that is not legal. Let the paper be produced regularly. Dr. Allan says distinctly that he was not clerk but surgeon to Lord Sel* kirk, who, as I understand, signed this paper as a m<^istrate ; product him or his clerk. • Soticitor-GeMrati-'For all the purposes of this confeMion I ehouU 99 contend that the present witness was a ehrk. Did you, Sir, act as aur- geonte Lord Selkirk in witnessing the paper? Dr. AUan the crime. What certainty have we that threats and menaces were not made use of, or what certainty, on tha {tlherhand, have we that promises were not retorted to, to induce the confession. If my instructions are correct, promhea mu8t have been held out, for previous to the confession, I believe, we shall be able to prove that De Reinhard teat eonjlned elostltf and treated with rigour, but that a/ttr be had delivered this paper, he was lUtcrated and treated with kind' nets. This circumstance alone is sufficient to excite suspicion, and to dictate the absolute necessity of most strictly scrutinizing every thing, connected with this pretended confesMon. The peculiar situation of the matfistrate who received this confession, forms also a reason for examin- ing into this case (more t^ian any other,) with the utmost minuteness. Fort William, where the Prisoner at the bar was in a rigourous confine- ment, previous to making this confession, had been taken by, and then rpmained in possession of, this very magistrate. A justification for all tli0 violence and aggression which characterized the capture of that fort was, we are told, that it was indispensible to enable this magistrate to bring to justice a band of criminals, who had thought themselves above tlie law. This is the story that had, by every possible means, been cir- culated in that country, and that all in opposition to this magistrate were rebels and traisors. That story not answering, except in the wil- derness, where information could only be obtained, through the chan- nel, and under the observation, of this very magistrate, recourse was liad to the press, to enable the actors in these scenes to stand clear in the public opinion. I hold in my hand a publication, in which this very con- ftiiion is given to the public, and not tbf confession alone, btU with com" menls caleutatrd to inflame the public mind, and deprive this unfortunate man, and every other person any way connected with these transactions, of a fair and impartial trial* Most sincerely do I hope as this is the Jirst^ 80 it may be the last time, we shall hear, I will not say of a British sub* jut, but o(at\y man being deprived of a fair and impartial trial, upon a charge affecting his life. Of this first right of every human being, the ma}>;istrate before whom the confession was taken, has, as far as in him lay, deprived the person at the bar, by [ c/isoning against him, in a long and studied pamphlet, the public ear, by daring to reveal the King's counsel which he was bound to keep secret, and thus disturbing the pure fountain of national justice. Such conduct I trust in God we shall never again witness. But we are not driven to the necessity of exhi- 'iting the deformity of this conduct, it is sufficient that we rest upo" <^ principltoflaw^ and say, that till the &£5^ evidence, which the nature »*-! ■A' '4 ,1 /,■'■,• M m r :hUr 102 tf* '♦1 r r n J ,) of the case will admit of, in produced, this confeiiion eannet be permitlei lo go to the Jury. It may perhaps be urged, that the number of wi(. neeses to the signing of this confession, excludes all idea of its being ob> tained in any other than the most open and honourable manner ; on the contrary, I should contend that the number uitnesses adds no strength to the confession, but rather the reverse, indeed that ciretimilance alont renders it saspicious, and would, though unattended by any of the strong points to which I have alluded, suggest to my mind that all was not fair. If it was, why deviate from the usual course ? No reason, I think, can be assigned that will satifify either the Court, or the Jury, that any • necessity existed for such a step. In conclusion, I contend that Lord Selkirk, as the magistrate, ought to be produced, so that the Prisoner ■nay have the benefit of examining him. It is positively required by taw, that the magistrate shall be produced previous to the confession be- ing received as evidence. I have no wish to trespass further on the time of the Court, being confident, that till the necessary compliance with the statute takes place, it will not be permitted to be given in cvi< dence against the Prisoner. Reason, as well as law authorities unite against sucli a confession being received. Mr. Vanftlson. — I have the hoonur, in the first place, to submit to the Court that this pretended confession of the Prisoner ought not to be received, because the magistrate before whom it is said to have been made is not called before the Court to prove it, and secondly, that on account of the conduct of the magistrate who received it, this confesMoti ought not to be admitted. The magistrate, tiie Earl of Selkirk, (of whom I« shall say nothing but as a magistrate) has so deviated from his duty, in the present instance, as to endeavour to poison the public mind, by giving to the Avhole world this paper, which the Crown oificers now produce as the Prisoner's confession made to him as a magistrate.— Not confining himself alone to the printing of it, this magistrate equally forgetful of his elevated rank in society, and the duty which, as a ma- gistrate, he owed to his Sovereign, has even dared to comment on his confession. Yes, yoor Honours, this magihtrate not content with hav- ing published, contrary to his duty, this confession, he bus not been ashamed to comment upon it, for the purpose of exciting the public opinion against the unfortunate Prisoner at the bar. I do not, there- fore, object to this confession, as being the result of an understanding with the oflScers of the Crown, no, not at all, but upon the principle that it is not equally certain that it does not result from some under? standing between the private prosecutor and the Prisoner, which does not ot present appear. I submit to the Court, that the law always re- quires, and indeed exacts the best evidence that the nature of » caqe will I 103 ^ill permit Then I ask, what in the present cane is the best evidence of tbii confession ? Assuredly it is not the testimony of a bye-stander ; not the testimony of a gentleman who telis you, that he did not evea see the Prisoner write it; not that of Doctor Allan, his Lord$hipU phy- iician ; but the best evidence to produce, is, that of the magistrate before whom this pretended confession was made, or of his clerk, and not that of a person who, by pure accident, happened to be present. liCt us consider this confession and the testimony which Doctor Allan gives on the subject. This confession had been prepared I>eforo-hand, which ii certainly not a very usual circumstance ; moreover, at the time that tho Prisoner delivered it to the magistrate, it is in evidence tliat Lord Sel- kirk asked him whether ho wished to alter it, or to add any thing to it. Certainly my learned brethren, the Crown ofUccrs, will not pretend to fiay that this conduct is perfectly usual. Then, I would ask, for what reason has the magistrate thus acted ? what particular circumstance jus- tified him in departing in the present case from the usual and regular course ? I most respectfully submit, may it please the Court, tiiat the moment we see a magistrate depart from the regular and usual course, from that moment there is ground for suspicion that the whole has not been conducted with that degree of regularity and integrity which is necessary to produce confidence in such proceedings ; and, looking at the manner in which this confession was made, and, also, at the mode of its production before this Court, I feel myself authorized to say, that the circumstances are extremely suspicious. Another circumstance wlxich renders the presence of the magistrate very important in this case if this, the confession was ready written when it was delivered to Lord Selkirk in the presence of Doctor Allan ; and, unless his Lordfihip ia called here, it is impossible to know whether any threat or promise wag made to the Prisoner, to induce him to confess. Let us look for a mo- ineut at the confession itself. What is it ? the history of a murder wliidi ia alleged to have been committed in the Indian territories, and it is par- ticularly set forth in the paper that this confession is ttie Prisoner's owu hand-writing, and that he made it before Lord Selkirk, one of the ma- gistrates for the Indian territories, who also signed it in his official ca- pacity. I hope, with confidence, that this honourable Court will not introduce a rule so novel and ^o dangerous, as to allow of proving a confession without the magisti*ate before whom it was made being pro- duced ; indeed, I am certain, your Honours will not allow this confes- sion to be received. Again, this confession ought not to be received unless the magistrate before whom it was taken be present, because, if he were in the witness-box, perhaps he might suggest something favor- iible to the Prisoner, or the Prisoner, during the examination of the ;''' ■ i i;y MM [I. m^'^ im m Oagiitratc, might ilruw out some rHvourablo drcum^tunrcfi, (vhieh art unknown to any other person. Perhaps it might appear that the ma. gistrate jad seen the prisoner before, and then a circiimstancn might b« explained, tvbicb at present it is very difficult to understand, niimely, how It happened that this confession should b« prepared beforehand ; we should ascertain how It was obtained, and the reasons which induced the Prisoner to prepare it. The Prifoner, undoubtedly, has the ritsht of examining the magistrate before whom the Crown officers say the con* fesslon was taken. The law ordains that before a confession can be rc> ceived against a prisoner, it shall be established, that it nas not obtain* •d by means of promises or threats, and that this circumstance fihall be proved. By whom ? not certainly by an individual who, by chance or accident, happens to be in the police offica, or in the apartment of a ma< gistrate at the time that a Prisoner is making his confession. On the contrary, it is expressly required that it shall be done by the magistrate before whom It was made, or by his clerk who had written it, and why ? for this reason, certainly, because the magistrate, or his clerk, could furnish the best evidence which the case would admit, and the law always requires the best evidence. Were it possible to allow a confes* slon to be received against a prisoner, in the absence of the magistrate or his clerk, he Is deprived of a material part of his defence. It is the duty of the Crown officers to produce the best testimony possible, and I ask them, do they produce it In calling Doctor Allan ? I maintain tbej do not, most assuredly not. If my learned friends, the officers of the Crown, say that Doctor Allan signed it as a wUneu^ that might be a plausible reason for admitting bis testimony, but it would not be suffi< dent ; for the law enacts, that the magistrate or his clerk shall be the witness. Again, I submit to the Court that this confession is inadmis* sible, because the Prisoner would be thereby deprived of his right of cross-examining the magistrate.— —[The AUomty'Qtntral rtmarkti^ ** The Prisoner can call the Earl of Selkirk.^] 1 ask pardon of my learned brother, but it is his duty to produce the best possible testimony to establish his caie, and if, on the contrary, as in the present instance, he oflbn testimony of another nature to the Court, it is not sufficient for him to say, that we may produce It. It is absolutely necessary be* fore this confesston can be received, for the magistrate or his clerk to tell ui, that it was made voluntarily, freely, and equally without pro* mise of benefit, or menace of harm. I admit that if the magistrate and bis clerk were both dead, then the present witness would be the best evidence, but, under the actual circumstances of the case, he is not so, and I consequently maintain, with confidence, that it is no answer to, my ar^jument to say, as Mr. Attorney*General has done, that we arc 105 ttt lilterty to produce it. It in not for m to prove bia caie ; It li hi$ Aaij to do it, by producing llio bntitevidenco poimiblo, vml nince the rule it lucli, I say, tliHt ill |troducinK Doctor Allan, tho ofHcers of the Crown have not produced the Imiit ovidonco in their power, and, it ueceiiarily folluwi, that thia confeitNioii ouglit not to be received as evidence for the Jury. It h not our busincita to contradict the confcMion, before it )iii>) been put in proof, and, to put it in proof, it i> abiiolutcly necessary to |iroducc the magistrate ; und when he is in the witness-box, If wa cannot prove, thut tlio circumstances uodcr which it was made prevent it from bt'ing received, the biwnie will be with us. But, having reasons to believe that this conl* ''ion would lie offered, wo expected the Earl of Selkirk would be called, und we were pniiarrd to meet him, but hit Jiurdiihip not being here, we submit, with grcut coni'iJence, that your Honours will not admit it. Jllorney-Gemral. — The paper offered as evidctice on the part of th« Crown, I beg leave to contend, is entitled to bo received, either, as a confession taken before a magistrate, or as a paper in the hand writing of the prisoner. I admit, that the rule is to produce either the magift* tratc, or his clerk, to prove the confession of a prisoner ; but, there was no clerk present, und us the magistrate is not before the Court, I submit, with great deference, that, having proved that no menace was used, nor any promise made, to induce the confession, that we are entitled to prove it. That no inducement was made use of, or resorted to, is, I think, clear, and I conceive, it to be no matter how that circumstance is brought before the Court, so that it be but clearly and undeniably es- tablished. This paper, I submit, docs not set forth that it was an exa- mination under the (statute, but is much in the iforra of a letter, narrating the circumstances of the murder of Mr. Kevcuy, and must, if not as a confefiFion under the statute, be received as an authenticated paper in the hand writing of the prisoner, made by him freely and voluntarily, from a sense of guilt, and therefore, in the words of 31'NalIy, deserv- ing of the highest credit. As a confession or examination under tli* statute, I contend, that, having proved there was no clerk, and the ma- gistrate being absent, we produce the best evidence ; but if the Court are against us in that particular, and think, as such it is not sufficiently proved, yet, as an authenticated paper, in the Prisoner's own hand writing, delivered by him in the presence of the witnesses, after tha most fair enquiries whether he wished to alter any thing contained therein, it must be received, and banded to the Jury as evidence for them to decide en. Solicitor-General.— Vipon this question I shall very shortly trouble your Honours. The first objection of my learned friends to the intro- o Ml '} « I I ■•>' i't r ally meant to say. Proceeding to the evidence of Dr. Allan, what can K>e stranger ? the Prisoner hands the paper that he had been, (as Dr. AN .' V > * *' Q,u'il avoit tout avoue au Capitaine D'Orsonnens, et qu'il alloit *' faire autant a Milord Selkirk, esperant ^tre reqn temoin de la Cou- •' rooDC." , Ill . Ian had liearJ or understood,) some days previously engaged In prepfti^ ing, to the Earl of Selkirk, who, before De Reinliard signed it, sent for Mr.Dease, a clerk in the same employ as the Prisoner, the paper is giv- en into the hands of Mr. Dease, who reads it, and thfen asks " De Selii- hard is this true ? are the contents of this paper true ?" and he answers, ♦« they are true," and signs it, and then Mr. Dease and Dr. Allan, and others, who were present, signed it. Under such circumstances, can the credit of the paper be for a moment doubted ? can it, flowing, as I have shewn it does, from the highest possible source, himself, and made agreeably to a determination he had previously communicated to his old comrade Vitchie, be rejected, or can it, for one moment, be a (question whether or not the Crown is entitled to the benefit of offering it to the Jury as a piece of testimony ? I think not. There is no necessity to produce Lord Selkirk, or his clerk, or for any further proof, because we have already the highest possible proof, viz : his own confessions, viva voce, completely substantiated by the fulfilment in this confession, writ- ten with his own hand, of his avowed determination to Vitchie of mak- ing a confession to Lord Selkirk. On what ground can we reject ihis confession ? I beg the gentlemen engaged in the defence, to recollect that this was his declared intention, to recollect tiiat he was brovtght in- to the room prior to signing it, to recollect that by one of his own fel- low-servants be was asked if it was true, to recollect that neither me- nace nor promise was made to him, to recollect that, on the contrary, he was asked if there was any thing he wished to change, any thing to add, any thing to take away, and therefore that it is, primA facie, a con- fession voluntary made. If it is intended to set up the contrary, it may be proved, but certainly it does not appear^ that there was either me- nace or promise made at the time of signing it. I repeat, let it be re- collected that he had before expressed his intention of making a confes- sion to Lord Selkirk, and tliat he signed this paper, containing a con- fession before his Lordship, and in the presence of one of his own party, who asked him at the time, " are the contents of this paper true?" and tJiat he answered, " they are true." Let these circumstances be recol- lected, and, I ask, is it possible that, under such a continuation of cvi* dence, we can reject the confession, as a confession at common law. — Lord Selkirk, as far as we see, took no examination, the Prisoner had prepared a detailed statement of the transactions as they occurred, which he delivered to Lord Selkirk, who certified it to have been so de- livered by the Prisoner, as his account of the transaction. In my judg- ment it is a manifest continuation of his original intention of making a eonfession. "Wherever we find him, from the moment he arrived at the encampment, as testified by the two voyagers, whenever we meet him i» W4h '•.^1 w ■i'- 5' ft. V ■ ■:it ^m mm :. if cs jtt ) ■; .■i ' < ■ I'.' ' ::* 112 bonversatJon with his friend?, wc fiml he persists in the same rtory, sent, one of whom, who might reasonably bo supposed to be favourable ■ ' to the Prisoner, Mr. Deuse, reads the paper, usks him, " Rcinhard, is «• this true ?" as if he had said, " did you so kill Mr. Kevcny ?" and he says, '* yes it is, I did." He tiien deliberately signed it, and the others witnessed the signing. As a confecsion made before those per. sons it must be received. Had it been made only t'ti'a voie, it would have been a good confession at common law, and it cannot be invali. dated by a circumstance that clothes it with additional strength. It is not received as an examination under the statute of Philip and Mary, taken before a magistrate, but as the Prisoner's confession at common law, iPdde in his own hand writing, and that part of it which is in his hand writing is so received. , The remainder of what appears on the pa< per, in another band, we have nothing to do with, we only take his otcri act, that whioh is in bis own lutnd writings as evidence to go to the Jury. [Mr. Justice Bowen very shortly expressed his entire concurrence Ivith the Chief Justice, remarking, that nothing could be stronger evi< deuce thau a confession written by the Prisoner himself, but the admis* sion of it did not preclude the Prisoner's counsel from shewing, from drcumstances which had not yet appeared in evidence, that it was not entitled to credit. He observed that his writing it himself, and Doctor Allan knowing three days before that he was engaged upon it, might open the door to shew those circumstances, but at present it was a good confession, and legally entitled to be received. Mr. Stuart remarking that it was certainly made under the hope of pardon, the Chief Justice remarked, that was merely his own statement, and repeated, that receiving the confession notv, did not preclude them from destroying it /tereo/Ver.] lExamination returned by the ^ttomey-GeneraU Jittomey-Generai.—Is this the paper which the Prisoner signed ii your presence? . • J>r. ^//an.— It is ; I saw the Prisoner at the bar sign it. It is in Ub band-writing, and is signed in two places ; in the one Charles Reia* hard, and in the other Charles De Reinhard^ [The confession, in the French language, of -. hidi a translation fol- lows, was then put in and read, the Chief Justice directing the Clerk of the Crown tQ read only that which was the Prisoner's own Uaud^vvritiog, 113 and not the appendage or certificate beginning ** B^e me, Vumai, ** Earl qf Selkirk,**]* .'M- TtlANSLATION. I, the underwritten, Cliarles De BeinliBrd, having lurrendered my* nlf prisoner to Captain D^Oraonnens at Lalce la Pluie, the 2d of Oetc ber, 1816, in consequence of the various circumstances that have hap« pened, during the time, I have been in the service of the North-Wesi Company, and With regard to the death of Mr* O. Keveny, I volunta* rily make the following declarationt My time of service being expired, as colouf-serjeant in the regiment of Meuron, I was recommended by Lieutenant de Mesani, commanding my company, to Messieurs William M'Gillivray and M*Leod, as elerk ia the North-West Company, and I afterwards obtained my discharge from the regiment on the t4th April, 1816, in consequence of a special application made to His Excellency the Governor, Sir Gordon Drum- mond. I engaged myself with the highest opinion, with which I had been impressed by Mr. Mesani, to serve with all posssble seal, a society of * The Cert^ate^ which the Court rejected, follows : Befobb Thomas, Eabl of Selkirk, one of his Majaty^s Jtia- iicti assigned to keep the peace in Vie Western Diatriet of Upper Canada^ and also in the Indian Territories^ or parts qf America not within tht Provinces of Upper or Lower Canada^ appeared^ Chablbs De Rbiit* HARD, charged with the crime of Murder^ who being examined, confessed Oiat he had assisted in murdering Mb. Owew Kevem t, and gave in four of his young men, after having received presents and ammunition, took their departure the following day, with the brigade, half of them in their own eanoes, and half in those belonging to the brigade. On his arrival at Bas de la Riviere, Mr. M'Leod caused the cam of arms to be opened, and armed the Canadians ; two brass pieces of cannon were embarked, and the brigade moved on to Deadman's River, in order to wait for more canoes from Athabasca, which arrived the next day. On the 22d of June, the brigade proceeded along Deadman'i River, and met with two barges with colonists, all whose boxes, trunks, &c. Mr. M'Leod examined, and kept a great many papers : he took no one prisoner but Mr. Pritchard, from whom the first accounts of the occurrences that had taken place at the Red River were obtained. Up« on returning back to the preceding encampment with the colonists, Mr. Bourke, who was wounded, and three other servants of the Hudson'i Bay Company, were made prisoners, and put altogether in a tent, the overseeing of which v/as committed to me. On the following day Mr. M'Leod and the other partners present, together with several clerks, took their departure in light canoes for the Forks, and in same naaneri Messrs. Mesani and Brumby, immediately 115 after their return and that of the other gentlemen from Ileaamati*s River, departed with Mr. Hughes for Fort William to convey the news to Mr. M'Gillivray, and thence to repair forthwith to Montreal, After the brigade wai reassembled, I was sent with the prisoners to Bas de la Riviere, and the brigade went to the Grand Rapid, fearing that Mr. Robertson might intercept the Athabasca loaded canoes, and Messrs. Hacdonell and M'Lellan arrived at Bas de la Riviere four or five days after I did, with fifteen Broii BruU$^ three pieces of cani , two of which were brass, and one iron, two wall pieces, and about fifty guns, muiquets of the old army model. On the return of the brigade from the Grand Rapid, the prisoners were embarked for Fort 'William, and I received instructions under the orders of Mr. M'Lellan to put the fort in a state of defence, as well against Mr. Robertson, who was supposed to have it in view to take possession of that provision post, where there were four or five hundred bags of pemican, as for the purpose of giving a reception with the cannon, and forty musquets in reserve, which were kept always loaded, te any eanoe of the Hudson's Bay C^ompany that might attempt to pass the post. Having learnt that My Lord Selkirk had arrived at the Sault with I great number of men, artillery, &c. double vigihince took place at the fort, M'Lellan making all the people believe, that my Lord was their greatest enemy, degrading his character in every way, and repre-' tenting Mr. Straehan*8 pamphlet as speaking of my Lord with too much' moderation, publishing the opinion of three lawyers in order to prove' the invalidity of the charter, and representing Lord Selkirk as acting without authority, and making laws according to his owil good liking; that the government was decidedly in favour of the North- West Com<> pany, since they had sent two oflScers to see that every thing was In- order: that all that Lordfielkirk did was without the knowledge or^ approbation of government. ' ^ ; : .i iiw ,.1. . i" .^'i. In the beginning of August, inieliigence was received af Bas de la'' Riviere, that a barge or boat with a few men, English, from Hudson's Bay, had arrived at Lake du Bonnet. By the first loaded canoes from Athabasca, a man belonging to that barge, arrived, who said that he could not continue any longer with Mr. Keveny, who commanded that barge, and that his comrades would equally desert the first opportunity. A few days aftemvards, four other men belonging to that barge, arrived with other Athabasca canoes. Two or three days after, Mr. M'Leod having arrived from FoK William, examined these men, one of whonij of the name of Hay, made oath, that Mr. Keveny had cruelly ill-treated him and his comrades, upon which Mr. M'Leod granted a warrant ;a'' |;ainst him, and nominated me, and one of his own men of the name of 'wm .' ^ ■.-l*£ 116 Ht: 'I .•'< Caitalo, u ooniUblet, to go and arreit bin at the portage where hit peo. pie bad abandoned blm. Mr. M'Leilan ordered tix BoiS'bruU$ to ao* Dompanyme toawiitt when I oame there, about ten o'clock in the morning, I found Mr, Keveny in hif tent, and I apprised him of my minion, making a primner of him in the King's name ; be was much furprised, and seized bold of his pistols to defend himself. Having re* presented to him that hii immediate death would be the inevitable con* lequenoe of his opposition to the law, he became quiet and required to lee the warrant upon which he was arrested. Having read it, he again became outrageous, and it was with difficulty I prevented the B«t«-6H(. lit from dispatching him. Mr. Keveny was conveyed as a prisoner to Bai de la Riviere, I left Primeau, the interpreter, to take care of his property which was already under the charge of his clerk, named Cowly, and his servant, an Irishman. Having arrived at the fort with the pri. soner, he had a violent altercation with M'Lellan, pretending not to be under the jurisdiction of Canada, being upon the Hudson's Bay Compa. ny's territory, he pretended to be independent of the law of Canada.— On the following day, about tea o'clock, he was embarked for Fort William, in company with Ave Bou-br&Ut^ to whom Mr. M'Lellan gave irons in order to make use of them in case the prisoner should re« list. I was afterwards informed by the Boi»*hruUt^ that when they came to the portage, the prisoner behaved in such a way as to force them to bind him and to hand'cuff him. Mr» Keveny's clerk, (Cowly,) being left by himiielf, came to the fort, and requested Mr. M'Lellan to receive against an acknowledgment, the barge with its loading, and to grant bim his liberty, together with one man to return in a small canoe to jAibany Fort, whence they came. Ar ri;knowledgment was given for foqr calves, a still, a pase of arms, quarters of salted beef, flour, &c. &c. Oa Primeau's return to the fort he delivered Mr. Keveny's papers to Mr. M'Lellan, and he kept for himself the clothes which he (Mr. Ke* veny,) had left on going away for Port William ; he besides made pre* eents to Mr. M'Lellan, of a book, a case wine bottle, candlesticks, tea cups, and other small articles. Amongst the papers there were printed instructions from Hudson's Bay. I was informed that Mr. Macdonell, having met the prisoner and the five Boit-BHtletf replaced the five Boit-BruUi^ by two young Cana* dians and an Indian, as guide, to convey the prisoner to Lake la Fluie. Messrs. Stuart and Thomson, having, three or four days afterwards, met this canoe, caused it to turn back. Ilie Canadians and the Indians hav* ing quvrelled, Uiey aeparated, and the Canadians, being ignorant of the way, were no longer able to pursue their route, abandoned the prisoner In » small iiland, and stopped themselves at another island not far fropf IIT %\n. Mr. Stuart having arrived at Baa de la Kiv iere with tlie news of (lie taking of Fort William, Mr. M^Lellan dispatol light canoo for j^thabaoca to appriae Mr. M'Leod, and anothei- to IL liver (u apprtM >lr. Macdonell, who arrived at Bas de la Riviere, on 'he iih of *'tip- tember, in the night, with the Boii-briiUa and Imllani. AU tliiii me Xr. Kevenf waa expected, who did not arrive, and oonjeoturei w«5re furmed either that the Indian had killed him, or that the Canadian* bad loat their way, or that the canoe had been lost. On the 5th of September, Mr. Macdonell and Mr. M^Lellan convoked ali the people at Bas de la Riviere to hold a council ; the capture of Fort William was stated in a proclamation, and the danger represented which would be incurred by allowing the enemy to penetrate farther ; and those who clioM to Volunteer their services to go to Lake la Pluie were desired to declare themselves. The greatest number having refused and preferring to defend their lands at Red River, Mr.'M'Lellan took alight cunoe with Mr. Grunt, Cadotte and me, bis Boit-briiUs, and his servant, a Canadian, with the intention of proceedini; to Lake la Pluie, in order to obtain intelligence, and at the same time to endeavour to dil^covcr what iiad became of Mr. Keveny. On the voyage the general tenor of the conversation was, that if hease, having his family at the fort, asked and obtained leave to go in nay stead. Mr. M'Lellan took his departure for Bas de la Riviere, on the seventeenth, and I was to remain at Lake la Pluie, till Mr. Dease's return : on the 2d of October, very early in the morning, I received a letter from Captain D'Orsonnens, who had learnt from the Indians that I was there ; he admonished me not to fly from the place, that he po»- lively must have some conversation with me about the Red River af« fairs, sending me at the same time a copy of the Governor's proclama* tion. Captain P'Orronnens having arrived about two o'clock, with 119 Mr. Deaw, and having explained to me the lituatlon of the two com- panien, and that thoie who bnlonged to the North- Weit who were ai the Red River, would b« considered at rebels by government, if they pemifted in their conduct. I wai much lurpriiedat thii intelligence, •Rd above all I shuddered with horror at the dreadAil crinae in which thoxe gentlemen of the North- West had caused me to participate, a few days before, upon the person of Mr. Keveny~having till that moment conceived that I had been acting in conformity with the wishes of go- vernment — whereupon I gave myself up as a prisoner to Captain D*Or- lOODcns, and gave him all the above mentioned details. (Signed) CHARLES DE REINHARD, Clerk of the North-Wat Company, Fort WiUiam^ the Uth October, 1816. ^//orne3/-Gmera/.— That is the case on the part of the Crown. [ A Juryman asked the witness whether, before the Prisoner signed the paper, he read it ?] * Dr. Mian.— 'Yet, I read it ; not to the Prisoner, but to myself, and it ii now in the same state except the endorsement. Cross-examination conducted by Mr. Stuart, I .1 t 'i- Mr. Stuart.— Vfn% Lord Selkirk, at the time of this confession bein^ made, in possession of Fort William ? Dr. Allan. — Lord Selkirk was then, and had been, for some time in pojisession of Fort William. Be Ueinhard had been about a week at Fort William previous to his Mgning the paper. He lived in a room with another fellow-sergeant of the same regiment — there were no sen* tinels over him. The paper was signed and delivered to Lord Selkirk, in the evening about seven o^clock. It was dusk I recollect. I had not seen either this paper, or any other like it, previous to the 28th of Oc- tober. I knew a few days before that he was writing ^mething, and I may possibly have spoken to Captain Mathey about i, but I did not lee, the paper till I saw it on the 28th of October. I io not know that the original of this paper was written by Captain Kathey and copied by De Reinhard, nor any similar paper. Captain Mathey regulated tho affairs at Fort William. This paper was laid before the Earl of Selkirk, 19 a magistrate. I do not know whether the Prisoner was taken befoi« Lord Selkirk, at the time of his arrival at Fort William. I was not there at that time. I should not think he could be so long as a week at Fort William without seeing Lord Selkiik, but I cannot give evidence to that point, as I was not there at the time. I left Fort William oo mm U.i': 120 the ITth of May, 1817. I genertlly resided there from 181^ to t^l period, but I was gometimei a good many miles distant. <4//oniey-Crenerfl/.— Where is Captain Mathey, Sir, at present f Dr. ^/fon.— Captain Mathey is at Montreal. Mr* Stuartr-l have done with Dr. Allans DEFENCE. i/pon the preteeution being closed^ and the Prisoner't counsel asking the indu^enee of the Court for a short time to enable them to arrange tin eourse of their defence^ the Court was adjourned for an hour and a halfh Having re-assembled^ and the usual forms being gone throttgh^ Mr. James C. M*Tavish was about being sworn, when it was intimated that one of the Jury feared he should be unable from sickness to proceed with the trial, A physician was sent for, and (being sworn (Dr. Hacket) to hold no con- terse with the Juror but on the subject of his health) examined the state of it, and represented to the Court that he did not doubt but //te Juror would ie able to attend to the proceedings* JAMES CHISHOLM M»TAVISH, Sworn, And examined by Mr. Stuart. te' !■■ ■ 1 \ M;:! %">'' Mr. M*Tavish. — I was a clerk of the North-West Company in th« month of August 1816, resident at Fort William. I Icnow that on the ISth of that month. Fort William was taken possession of by an armed force under the immediate command of Captain D'Orsonnens. The Earl of Selkirk was not at Fort William on the ISth of August. The per- sons composing this force were all armed, some doubly armed. The offi- cers were armed with swords and pistols ; the muskets, generally speak* ing, bad bayonets attached to them, and the force had altogether the ap- pearance of a military force. Captain D'Orsonnens was at the head' of the first party that entered by force into Fort William. On the evening of the 12th of August, we distinctly saw the men on the other side of the river, belonging to the late De Meuron regiment cleaning their arms, and observed them plant a cannon against Fort William. At the mo- ment of their arrival at Fort William, a bugle was sounded, and the m m«n huaeaeil crying, " aux armeo, aux armes et aux canons" (to arms, to arms, and to the cannon), and then rushed into the fort. They seized two pieces of cannon, loaded them, and planted them in the mid- dle of the square, which was a position commanding the entry into the fort. The men were exceedingly outrageous and abusive, and Captain D'Orsonnens behaved in a very violent manner. I heard him threaten Mr. John McDonald, a partner in the North* West Company, and saw bim seize him with one hand, and in the other he had a pistol which he put to the ear of Mr. McDonald. SolieUor-Getkerai.'— This surely cannot be evidence to repel a charge of murder, nor do I see that it can have any effect upon the case. ChitfJtutke Sewell, — Nor can it, unless clearly brought up to the knowledge of the Prisoner, and then it will form a question for the Jury what influence it might have on his mind. Mr. Sttuirt. — From Captain B'Orsonnens' testimony it might be inferred that the fort was given up voluntarily. It will, I am sure, be in the recollection of the Court, that, !n his examination, Captain D'Orsonnens described himself as a simple individual. I wish to prove that he was at the head of a military force ; that he was not there, as from his representation we might be induced to imagine, solus eum solo, I shall exhibit such evidence, as to the conduct of Captain D'Orsonnens, that it must materially affect the credibility of his testimony. I will put the direct question. Was Captain D'Orsonnens armed, and did he act as the head of a military force ? Mr. M*Tavish, — Captain D'Orsonnens was armed ; he had a sword and pistols ; he commanded as the ]:oad of an armed body. The officers were dressed in the uniform of the late De Meuron regiment, and Cap- tain D'Orsonnens wore a grey military great-coat. Some time after the fort bad been taken possession of, (but the same day,) a reinforce- ment arrived with Captain Mathey, who then took the chief command; about twenty with Captain Mathey kept possession of the fort that night.* On the arrival of Captain Mathey, and before the arrival of Lord Selkirk, sentinels were placed over the fort. SolieUor-General.—l believe at this time Captain XPOrsonnens wai not there, and as this evidence is intended to destroy his credit, it is ne- cessary that we have nothing brought forward except when Captain D'Orsonnens was present. Chief Justice Sewell^ — You have obtained the substantive fact that Fort William was taken by force, (I am speaking to the gentlemen en- gaged in the defence,) what do you wish for more? It is taken by arm- ed men, cannon are planted, sentinels are placed ; what more complete poB^ession could be obtained of a place than this ? 1 I ;: ■ i iwki ' -m ,Wii;.'f 'i ' )\ ! .: 1 , ' M m :u:.HMi 122 I' I !■(,.; € §:^ j :!;; ^r- ^•>i ' ^>i -;1 mi ' jlfr. S/uar/. — We consider it necessary to shew, not merely that it was taken possession of forcibly, but that it ims retained possession l^, for a considerable time. ■■ '■■ > Chiff Justice Seteell. — Well put the general question then : How long was it kept possession of-— -and you come to the point at once. The question being put. ^' Mr. M^Tavish.—! am not able to say how long Lord Selkirk retain* ed possession of Fort William. I left it on the 4th of September, and at that time it was in possession of the armed force, together with the whole of the property. Fort William is the grand dep6t of the North' West Company. All the equipments for the interior, and all the re* turns, pass through Fort William. From the 13th of August till the 4th of September, the day I left, there was no communication with the In- dian Territory for the North-West Company, it was entirely cut off. Cross-examination conduced by the Aitormy'General. Mr. M*Tavish.— At the time Fort William was taken, there were upwards of a hundred men there, perhaps in and about the fort, there might be upwards of two hundred men. They were not armed, neither were the cannon loaded. There was no resistance made, nor any oppo' sition further than this : One of the gentlemen belonging to the North* West Company said, that they could not think of admitting so many armed men into the fort, till they knew what had been done with Mr. M'GiUivray, and the other gentlemen who had gone across the river; and no violence was used, except by Captain D'Orsonnens. I wa» standing at the door of the gate, only a few paces from Mr. McDonald, and I did not see him shut the gate at the time Captain D'Orsonnens arrived. I did not know that Lord Selkirk aeted as a magistrate in the Indian Territory, nor that the principal partners of the North-West Company went out to meet Lord Selkirk in his capacity of a magistrate, I had not heard of any warrant being issued, before the taking of the fort, not did I see a constable. At that time Mr. M'Gillivray and other gentlemen were out, but I did not know why they had gone out, nor even that they were out. I have since heard that they went across the river, in consequence of a warrant. I did aul !<^now of a warrant against Mr. M^GIIlivray. Chief Justice SewelL— Yon can make Mr. M^Giltivray a witness if necessary. This witness tells you that he knew nothing of any warrant before the fort was taken. Solicitor-General. — I want to prove that a process was issued, and that its execution was opposed. I could not anticipate the defence, but ^r 123 I now iviidi to fhew, that no violence was used beyond wfiat was necee* cessary to enforce tbe execution of a civil process, which had been re> lijted. Chief Jwlice SewelL — We wished to keep this oat upon the examin- ation in chief, it was insi ted upon being gone into, and sow I suppose must be permitted in cross-examination. Mr. Stuart.— 'Vfe thought it very material evideace, and so we still think. As to the warrant Mr. Solicitor-General is enquiring for, I care not a straw about it. It can be no justification for tbe conduct pursued, on the contrary, it greatly enhances the crime. What ! is a warrant issued against A. B. C D. E. and F. to justify an appropriation of pro- perty, a seizure of guns, and an occupation of stores belonging to the great commercial rivals of tlie very magistrate who issued it, and whose conduct has so largely contributed to all the evils we have to deplore. . j Attormy-GeneraU — The line of defence taken is certainly very sin- gular. It would induce us to believe that terror was produced, similar to that occasioned by the sacking of a town. My learned friend's state- ment is perfectly terrific. Pistols to heads, the t'\king of cannon, and planting it so as to command the gate, and all this to people, who ac- cording to his account of the matter, made no resistance whatever. Mr. Stuart. — That is our defence, and we will prove that all thesic outrages were well known to Be Heinhard. .... .J. . • ,,:._..■.., ^^.j ^^ '< , ■ Cros$-«xaminaii»n resumed by the Altorney-Gentral. • , ,« .vs mi- Mr. M^Tavish. — After the fort was taken, I knew of a warrant to ar- rest some persons or. a charge of conspiracy. It was signed S^slkiry, and was against some of the partners of the North-West Company. I ihtxi saw some persons acting as constables, but not previously. Cap- tain D'Orsonnens' men seized Mr. John M'Donald and Mr. Allan M'Donald, two of the partners of the North- West Company, and put sentinels over them, and the day after, I understood they were taken be- fore Lord Selkirk. His Lordship did not tell me that he was acting as u magistrate. Two days after the fort was taken, I was forbid by Cr.p- tain Matbey, at my peril, to go out of it, or to speak to any of the ser- vants of the North- West Company. I considered myself as a prisoner to a military force, as guard was regularly mounted in tbe fort. We were treated like military prisoners, and with every indignity. I was confined to limits in the fort, which I was forbid by Captain Mathey to leave. I slept in the same bed and eat in the same room as I had pre- viously done. This force consisted principally of foreigners, and I took them for soldiers. If they had been dressed in black clothes, or nvt in Wl,. ;■■ , .* ■ 124 ■ uniform, I should have considered'them well trained to the use of arms, and very expert in military manoeuvres. Fort William is the principai depot of the Nort-West Company. The correspondence and principal Books of the company are kept there. I know of an express arriving at Fort William with the proclamation of Sir John Coape Sherbrooke, on the S2d of August ; there were a number of them addressed to gen* tiemen holcKng commissions as magistrates in the interior, and .a num- ber of blank ones. I asked Lord Selkirk for men and canoes to send them forward, but I was refused. I do not know whether Lord Selkirk sent them or not. I ktiaw Mr. Pritchard ?eft Fort Willinm about, that time, but I do not know that he took the proclamations. I do not think our gentlemen received theirs from him. The proclamations specially addressed to the gentlemen of the Hudson's Bay Company, were taken by Lord Selkirk ; those to the gentlemen of the North-West Company, were handed over to me, but I was not permitted to send them, nor were they forwarded when I left the fbrt in September. I did not re- fuse to send them by Mr. Pritchard, for I did not know of his going tilt after he had gone, and then I found it out by a steersman of ouri, named Wells, having deserted^ Attorney-General. — Are you confident you never refused to send them by Pritchard, or by any other person ? JtTr. M*Tamsh, — ^I am upon oath, and I know what I am saying. I was not allowed, though I asked permission, to forward them ; and I •wear porittvety that I did not refuse to send them by Mr. Fritehard, or any, body ebe, for I was never applied to, to send them. Mr. M*G11U- vray and the other gentlemen, who went over the river, returned the same night, and had sentinels placed over their doors. . * i"3 1 CLAUDE BLONDIN, Sworn. Examined by Mr. Van/blson» B/onitn.— I was in 1816, in the service of the North- West Compa> ny at Fort William, and know that it was taken on the thirteenth of August. There were fifty or sixty men armed with muskets and can- non, and dressed in soldiers*Glothes of different colours, some in red, some in green^ some in blue. I know Captain IPOrsonnens and it was be who commanded this fbroe. They pushed open thto barriers, entered tha place on a run, seized the cannon, and (brmed themselves in tbs square. No reristanee was made. The gates were not shut, nor the the hvrieri. After htyiog taken possession, they searched all over the -• 126 ^ fort, and placed sentinels at people's doors. The following (evening Captain D'Orsonnens came to my lodging and blamed me on account of a fire which he had seen in the canoe yard. SolicUoT'Generalj^I am sorry to interrupt, but really this is not evi* dence ; this sort of testimony has no bearing on the case. Mr. Vanfelion. — ^I'he objets of the defence are two ; — first to shew that the confession was extorted from the Prisoner by particular cir- cumstances ; and secondly, that Fort William was taken by force, and that Captain D'Orsonnens was not a simple individual. I take it, the more I prove that is calculated to invalidate the strict correctness of that assertion of Captain D'Orsonneus*, the more I destroy his evidence, and in proportion as I destroy that, I weaken the case on the part of the Crown, and strengthen the defence of the Prisoner. Examination raumed by Mr. Vanfehon, Blondin. — He told me he would hold me answerable, at the peril of my life, if firo or accident should happen in the canoe yard. On the following day I saw him again, and in consequence of the remarks I made, I was sent to the other side of the river. Mr. Vanfelson. — Is it within your knowledge that Captain D'Orson* nens said to the persons in the service of the company, that it would be best to leave them, or that the gentlemen of the North-WeSt were re* bels, or that their trade was at an end ? B/ondtn.—- He said that they were rebels, and— — Solicitor-General. — I object in toto to this line of evidence. Mr. Vanfdson. — My learned friend is too late, for the witness's an- swer is taken down. < SolicitoT'Ocneral—l beg my learned friend'a, pardon, but I am in time sufficient ; I object to this answe.' being on your Honours' notes, for it is not only Inadmissible, but absurd to say, that any private indi« vidual's misconduct can be evidence to exculpate the PrlHoner. My learned friend says, that he pursues this course to impeach tlie credibili* ty of the witness on the part of the Crown, but he must be well aware that his credibility cannot be attacked in that way. There are various ways of impeaching the general credit of a witness, but proving that a fort was taken, or that servants were seduced by him, is not one of them. C/(t>^Jtu/ice Sieire//.-— The question relative to the /or/, Mr. Solid- tor, is not to general credit, but to a specific declaration as to a mattet of fact, which Captain D'Orsonnens has been examined upon. Mr. Justice Bowen. — Captain D'Orsonnens swore distinctly that he did not know that Fort William was taken by an armed force, because . 'ill-! '!'' '■ il i :>y ; :: m^^ *' 1 ii-' ' 1: .Bii ■; '■1. he did not sw Lord Selkirk take it. This witness swears the contrary, for be swears that he heuded the force by tohieh it was taken, I think the question relative to seducing servants ought not to be allowed. If it ha* been asked, and was answered in the negative^ perhaps it ought. JUr. Van/ebon, — I shall not press.it» , ,^. ., ; y, j •; , ".' Cross'txaminalion conducted by the Solicitor-General. B/oMrfm.— I Raw the people of my Lord Selkirk enter, and Cap*«'N IVOrsonnens (whom I knew,) with them I am sure. I thought that the noise arose from people fighting, and I ascended the stairs where I was working, and saw the per pie take the fort quite distinctly. I do not know that he has been a captain in the regiment of Meuron, or that Captain D'Orsonncns entered as a constable. He looked liked a soldier. LOUIS LABISSONIERE, Smm, %. ', S And examined by Mr. Valliire de St. Real. Lahissoniere. — In the month of August, 1816, 1 was at Fort William, a voyageur, employed by the North^West Company. On the ISth of August, there were in and out of the fort sixty or eighty men, perhaps less, perhaps more. "We were taken prisoners in Fort William by Captain D'Orsonnens and Captain Matfaey and their people, who or* dered us not to stir out, and placed sentinels at each gate to prevent us from going out. I can not say positively who commanded, but it ap* peered that Captain D'Orsonnens and Captain Mathey did. Lord Selkirk came to that part before the fort was taken, but he did not enter the fort till two or three days after. They were well armed with mus* quets and fixed bayonets. After the others had joined, there were per* baps two hundred men or more. The greatest part of them were dress* ed in red, and appeared like soldiers. I was very mucb afraid and there was a general pani^ I know that some of our people were put in prison. I have no knowledge as to when ojir people who were imprisoned by Captain D^Orsonnens depart* ed for Montreal, but I know that Captain D'Orsonnens proposed to take the fort of Lake la Pluie. Some days before be went, I beard him say that he was going to winter at Lake la Pluie, that there were plea- ty of provisions in that fort, and that he would be well off there. At the time be talked of bis intention of taking that fort he said—'' 1 can "take it without any danger; my men are clever fellows, and I have ^^l^t cannon." | saw Captain D'Orsonnens take his departure for 127 • take la Pluie with his people, and he took with hint two pieeet o^ecntMn, mounted^ which had been taken from Fort William, and belonged to th« North-West Company. I heard him say, that the gentlemen of the I^orth-West were sent to Montreal, and that the most favow«ble sen- tence they could expect would be, to bs hung. CfQis-examination eonduded by the Attofney-GtMrai, At the time Captain IVOrsonnens entered Fort William, I was in it« I do net know that he had a warrant to execute. I saw Captain D^Of so^nens depart with his people for Lake la Pluie, and the cannon were embarked. Captain lyOrsoonens did not mount them, they were ready mounted. •" • : r ,; -: r- ■., .. .( ■iV'rtj !?J. Jt being past Six o'cfocX;, the Court wa9 adjourned tiU io-morri'- 1- 1' ;; I was one yard from the gate at the time that they entered. They entered as much as they could by force. The gate was not shut. I went up to the Bed River afterwards, but I never told the half-breeds, nor any one wfabmsoever, that Lord Selkirk waa in irons, nor that he was chained at Fort William. I simply said, that I had seen him there. I never told the half-hreeds that the Great Chief, the Governor, had sent officers to put Lord Selkirk in irons, but I said that a Constable was coming up with a warrant to take Lord Selkirk, as I had heard, and Aothing else. ul/tomey-Crenera/.— Look at this gentleman (Dr. ^Ucm)— do yoa know him ? ilfr. Morrifon. — I know him from having seen him, but not hii name. I have heard him called Allan. Dr. Allan w,as not present, to my knowledge, when the fort was taken. H9 > i;( '.V ^.\' ' ) '■ ,1 JEAN CREJBASSA, Sxeom, -'V •! And ckamineA by Mr. Stuart. jean Crebassa. — I am A clerk of tLe Xorth-West Company, and my post in 18i6, in ttic months of August and July, was at Bas de la Bi- viere Winnipic. — Mr. Archibald M*LelIan came down from Athabasca some tiime in July, and remained at that fori part of the suihimer. I know that a warriint bad been issued against oniB named, Oliver Keveny^ tt Bas de la Riviere by Mr. Noirnian M'Leod, in the nionth of August^ 1816, liport the cbmplaliits of sonife peibsons who were under his com- mand, and I afterwards saw Keveny at Fort Ba§ de la Riviere. jliV. ff/iiar/.— ^Keveny, was he taken to the fort in consequence of hil arrest, in virtue of the warrant which Mr. M'Leod had issued ? Jean Crebatsa. — I heard He Relnhafd ^poke to, to execute a war- t-ant with three men, and he was brought in a prisoner by Dtf Rdiifaardi the same day I believe. C7uc/^«^^««'Sfetfe«.-- WherewasMr. M'Laod? ^ Jean Crebassa. — Mr. M'Leod went away the same day, after he had Issued the warrant, for Athdbas&a. He was igone befdrfe De R^tnHard returned. Examinaiion resumed by Mr. Stuart. Jean Crebdasa. — I do ndt know the Christian name of tFiat Keveny, but his people called him Oliver Kevieny. Mr. M'Lbllan was at the time at the fdrt of Bds de la Riviere. Mr. M'LfeUah, sind all the peo- ple of the fort, received Keveny in a friendly Way, Keveny Was sent to Fort William as d pfisonei* on the following day: A few days after- wards we learned that Fort William, the principal depot of the North- West Company, had becii takeil by Lord Selkirk. Dt Reinhard was there at the time, and was acquainted with this intelligence ki well ai tnyself. Mr. Alexander M'Donell Was then at Red River, arid a lettejf was sent to inform him of the capture of Fort Wiliidm, arid he camt down immediately in consequence toi Bas de la Riviere. After his ar- rival a consultation was held as to what ought to be done in tonsequerice Oftfaecaiptureof Fort William; and, inconsequence of this consulta- tion, Mr. M'Lenan took his departure in a canoe with th^ prisoner, (De Reinhard) Mr. Cadotte, Mr. Grant, and other persons, to see whe- ther the communication between Fort William and the interior was «T>en or not. We were afraid that, Foft William being taken, our :■ !i.'i. i ■'»; I ^ 1>|N, ISO equipments which were then expected to arrive might not come, and it wai a matter of very great consequence to us. In that country, the meetings which are held, in order to consult on matters of business, are called " councils,*' in imitation of the Indians. It was tlie only council held there at that period to my knowledge ; and, as I was the principal clerk, I believe they would have had sufficient confidence in me to have called me to any council held there. I have no knowledge that any person said any thing about Keveny, and if they had spoke of Keveny, I must have known it. When he weni away I heard Mr. M'Lellan say to the people who conducted him *' to take good care of him,*' and " not ^* to give him any offence." Four or five days after the council, Mr. M'Donell returned to Red River, and, on going away, he told me that it was expected that, in consequence of the capture of Fort William, Mr. Keveny would come back to Bas de la Riviere, and that, in that case, I should do right in sending him to Red River, as a more conv^ nient plaae for him, and also one where there were more provisions than at our fort. Cross-examination conducted by the Atlomey-GeneraU Jean Crebassa. — I never saw the warrant of which I have ipoketi, nor can I say against whom it was issued. The Prisoner brought to the fort by De Reinhard answered to the name of Keveny, I never heard him answer to his ChrUfian name. I saw Keveny and spoke to hin, but I do not know wha. ountryman he was; he was a tall man, and of a fair complexion. He was sent 'rom Bas de la Riviere in the care of one Louis Lacerte, a guide and interpreter. Lacerte is a Bois* brule, or Half-breed, and four or five others went with him, all Half- breeds or Bois-brules. He was not to my knowledge in irons ; he wai not in irons when he went away, and I never at any time saw him in irons. WeAa<{noneat Basdela Riviere. I never saw any there.— When Mr. Keveny was brought to Bas de ia Riviere he liad no bag* gage. After the departure of Keveny his barge with some baggage came, and his clerk (Mr. Cowly) asked leave of Mr. M'Lellan to put it in an outhouse. He took an inventory of it, and it was put in. I did not see the word Keveny on the baggage, nor engraved on a writ* ing desk, nor did I see a writing desk. Chief Justice Sewell. — Then I understand you, that you did not see iJie name of Keveny on the baggage, neither printed, written or en* gravtid on a writing desk. , Jean Crebassar— Yes. ,f •:' , ^//omcy-GencroZ.'-Did you see any calves ? ''- » liii ISl Jtan Cre5flj5o.— Yci, there were four calves which were killed and eaten by tlie Indians. I swear that I did nu. .at any. I was present at the Council of which I have spoken as a member of it— but I did not vote. Mainville, I believe, was present, and there were other Boi*> brules. The object of this Council was toltly to send canoes forward, to know whether the canoes with the equipments were coming from Fort William or not, because if there is a want of goods to trade with the Id- dians, and of seines (fisliing nets) we should absolutely be starved ta death. Mr, Stuart.-— I beg that may be taken, that, unless they received (lie supplies they were exposed to absolute starvation. Jttomey-Gentrat. — I must ask you, upon the oath you have taken, bad this Council no other ohjieet than merely to send off a canoe ? Jean Crebassa. — The only object of this Council of trade was that. I cannot say it is the custom of the Iialf-breeds to sit in a council of trade, but I know they were called upon on this occasion. I have no knowledge of any opposition to the measure of sending a canoe. The proposal was made by Mr. M'Lellan and Mr. M'Donell, and nobody opposed it. Mr. M'Lellan enquired who would volunteer to go in the canoe. This was all that was done. Some of the half-breeds refused to go from idleness. Attorney-Qeneral. — Are you quite sure that nothing but idlenesi prevented them going ? Did they not some of them assign a reason ? Jean Crebassa. — I think it wns nothing but idleness, because they none of them gave any reason. I do not know that a Bois-brule, named La Pointe, refused to go, or that he gave his reasons for not go- ing. I do not know of his making a speech at the Council, nor did I hear him say that he would not fight against the King's troops. .1 do not know his father, or that he was tried by a court-martial for advising his son not to go. Mr. Archibald M'Lellan, Mr. Beinhard, Mr. (irant, and Mr. Cadotte, together with 3Iainville, and seven or eight other Boisii:J I learned friend rouit really permit me to know lomctbing more of thu post extraordinary Council held to determine whether a cnnoo should be wnt off. What could the canoe do if it went ? could it bring the thing that they eipeeted any faster P or, if they were not coming would a canoe being lent oflT make any aUeration in the situation of those who were at Baa de la Kivlere? It really appears to me a very mysterioui business to call a council and invite the BuiS'brules to it, merely to de- liberate whether a canoe should be sent off or not. Mr. Stuart.— I think it was very natural when they heard that the great line of communication was cut off, that they should be anxioui whether they were to receive any supplies, for what does the witness lay—" that unless they had merchandise to trade with the Indians, or ** nets to fish, that in that country they must inevitably starve." — The pbjcct for which the council assembled was a very natural one, and the witness most unequivocally says, that it was confined exclusively to the consideration of the proper steps to be taken in consequence of the out- rage which deprived them of their principal depot, and not to devise n, retaliation of the aggression, or even to deliberate upon any means of re* gaining that which was rightfully theirs. Chief Justice Sewell. — Suppose at this council there had been a propo> rition of the kind your questions are hinting at, Mr. Attorney, how would it bear on the case P Mr. Jwtiee Bowen. — Admit they determined to fight their way through, how can it affect this case ? , --^ jiltomey-General. — I wish to prove that this council was not thnt innocent assemblage that it has been represented to be. Did you hear any thing at that council relative to war ? Jean Crebassa. — No ; not to my knowledge. The council was held ten or twelve days after Keveny had been sent from 6as de la Riviere, and the canoe with Mr. M'Lellan and the others, followed on in the same track, indeed there was no other communication. Two or three days after Mr. M*LelIan*s departure, I saw a trunk and a box brought to the fort at Bas de la Riviere, by Joseph, fils de la Perdrix Blanche, and a man named L*AUemand, but I did not see the name of Keveny upon them, or I do not recollect that I saw it. I saw them at the water side, and I do not know what became of them. I do not know whether it was a week or a fortnight after Mr. M*LelIan went away that the things came. I do not think it could be so long as a fortnight. I cannot say that it was not five or six days, but I do not believe that it was four' teen ; but I cannot swear that it was not ten ; I think that it was near upon five or six. '..>!. ^ Chief JuttUx JSpicen.-^Did De Reinhard go with the warrant the 133 diiy it was given, ant) return the lame day ? and how happened it tha^ Mr. M'Leod was not there ? Jean Crebana.'-Ht hod gone away to another poit, to AtbabaicA sftcr granting the warrant, and before De Reinbard returned. Atlorney-Oeneral. ^Cou\6 not Keveny have been Icept at the fort, till a better opportunity offered of fending him to Fort William ? Jenn Crebaisa. — That \i ai not my buiioeiif, I bad nothing to do with (cniling him. ' .- ♦ ,. , Aitomty-Qtneral. — I want to Icnow if he could not have been kept it Bas do la Riviere. You have repretenred that Keveny was treated vN-itii t'riendRhip. If you and I were there and I ohould send you to Fort William with five Bois-brulei, would you call it friendly? la it usual to ; ■ ■■A ' *■ ;1 > J \ m i '■ f" ' .-■^■i 9, i I iJOi'l;' 134 of October, Captain D'Orsonnens came, and that before his arrival Mr. McDonald, one named Bonaire, and Mr. Nolin, arrived at Fort Lake ]« Ptule, and took Mr. Sayer prisoner. Mr. Sayer was in bed and thej took him prifloner, saying, *' we take you prisoner in the name of th« ** King." I was outside of that room, but at the door where I could tee, and I saw them take him, and heard the words, " we take you pri. *• soner in the name of the King." Mr. McDonald asked where Mr. I)e Reinhard was, but I did not hear the answer. He immediately went in tlie house where De Reinhard was. I afterwards went into De Keinhard's house, where I saw Mr. M'Donald, with his arms, guarding Mr. De'Reinhard. At that instant, I did not know that a force con* wsting of the people of my Lord Selkirk, was at the fort at Lake la Pluie, or at the portage. In the afternoon Guiltaume arrived with perhapi twenty Mcuron^!. Before, and in the course of the day, about three o^clock, three or four Meurons had made their appearance, and after. wardfi, at sun set, or thereabouts, the others came to join Mr. M'Donald, I did not hear these three or four speak in a threatening way to De Reinhard, but there were Meurons there, and I heard them make use of threats against De Reinhard, and I think that De Reinhard heard tliem. I believe that he did. [The Solicitor General remarked, that as on a former occasion tin Crown was not permitted to go into evidence of a conversation in the presence of Mr. M'Lellan, because tUe witness would not swear that M^Lelian heard it, he did not think this was evidence ; to which the Coart observed, that this might not be a parallel case, but till the time was ixed when this took place, the Court could not determine.] Mr. ValUire de Si. Real. — When did the twenty Meurons arrive? Chretien. — It was in the evening towards sunset, and they were part- ly at the door and partly in the house. Captain D'Orsonnens came in the afternoon, about two o'clock. The twenty men were toilh Captain D'Orsonnens. It was raid^dny or one o'clock, when the four Meuront fir$t arrived, or about an hour before Captain D'Orsonnens came. The twenty men came with Captain D'Orsonnens in the evening, but I do not know whether tliey came with him the first time, that is, at two ©'clock. - Chief Justice Sewell. — You said, " that it was with Captain D'Orson- nens they came.'* Chretien. — The twenty men acibmpanied Captain D'Orsonnens in the evening, but I did not understand that they had come at two o'clock' [The Chief Justice remarked, that there must be some mistake, or contradiction, as the witness had just before said, that these men came ttith Captain D'Orsonnens. The Prisoner's counsel aftei his Honour - 135, bad read his notes* observed, that Uiey believdil the witness (although his answers were not very distinct,) had not intended to say, that tin twenty Meurons arrived with Captain D'Orsonnens at two o'clock.— The Chief Justice observed, that Mr. Bowen's notes agreed with his. What the witness meant eould only be known from what he said, and he had said that. Some of the Jury intimating that they had not so un- derstood the witness, the Chief Justice enquired of the reporter if his notes accorded with those which he had read? Mr. Simpson obser^, that ^ey did not exactly, and read his. The difference appertrs to be this, the reporter, in the former part of his testimony, represents the witness as saying merely, that tliese twenty men were with Captain D'Orsonnens, without any specification as to /tme, and latterly diat they tame with him towards evening, which was the second time of Cap- tain D'Orsonnens' coming according to his comprehension of Chretien ; whilst the Court understood him as fixing the first visit of Captain FOrsonnens, viz : at two o'clock, as the time when they accompanied him. The Jury and the Prisoner's counsel observing, that they under- itood the witness as the reporter bad taken his evidence, the Chief Jus- tice said, that he certainly bad stated that they arrived with Captain D'Orsonnens at two o'clock, and being on both the judges notes he coukl kot strike it out.] Examination continued by Mr, Vallitre de St. Real. Chretien. — ^T heard the Meurons (who were all armed) say, tliat they had entered the fort to seek for one De Reinfaard, and " that if he did " not got go to the Portage of Lake la Pluie, where their camp was, " of his own free will, they would take him by force." This was at dusk, about sunset. " We have him now," said they, " formerly he " took care of us in the regiment, he made tw smart, but now we are " going to take care of him.** They took him to the portage that same evening, but did not say tchy. I cannot say whether De Reinhard heard it, because I do not know it for certain. They were all in • * In the afternoon, the person named GuHlaume, a Meuron, arrived at the fort, with a score of men ; and before, about two o'clock in the •fternoon, three or four Meurons had arrived with Mr. M'Donald. — They came to join Mr. M'Donald at the fort in the evening, at sunset, or thereabouts. I heard threats made use of by the Meurons against De Reinhard. They were then at the door and in the house where De Reinhard was. The twenty men came with Captain D'Orsonnens, «r Iwut two o'clock in the afternoon. ! ■ nifi W ', i k I m » ' If 1;' ■IM MM ■ 136 Ifoop, ind De Reinhard was In his room with the door open. I was irf the kitchen, and I heard, and I believe in my conscience, that Do Rein- hard heard them. He was as near to them as I was. I have not any knowledge' of a quarrel between Captain D'Orsonnens and De Rein- hard. All went out together, De Reinhard, Captain D'Orsonnens, and all of them, went away together to the Portage of Lake la Pluie. De Reinhard appeared to hare a melancholy air. These Meurons teemed to be seriously Iri-itated against him, and by their language ie appeared to me that they hated him. [The Chief Justice intimating that they were not trying twenty Meurons, Mr. Yalliere said his object was to shew the disposition of the Meurons towards De Reinhard, and that they threatened him. The Chief Justice reminded Mr. V. that he had previously made his confess rion to Captain D'Orsonnens, and, upon it, had been taken up as a murderer. Mr. Vallierc pursuing the same course by asking if they were prohibited from leaving the fort, the Chief Justice said it could not be admitted, as subsequent events could not be brought to bear on this question. Mr. Vallierc stated his object to be to rebut the evidence of Captain D^Orsonnens, by shewing that he uniformly appeared in a Tery different manner, from that of a disinterested person, which, as affecting his credibility, he considered very material.] Examination resumed by Mr. Valtiire dc St. Real. Chretien. — ^The next day, or the day after, Captain D'Orsonneni called us all together, and ordered us not to trade with the natives, nor to go on the water to fish, nor to go out a hunting ; and that, it' we did ■Of the first shot he would fire would be in the air, and the second to sink us. Captain D'Orsonnens constantly wore a grey great coat with a fiword by his side. I did not see hini wear a red uniform. I kno\T that Captain D'Orsonnens took the ammunition, and all the liquor there was in the fort. He gave for a reason that the fort did not belong to the gentlemen of the North-West, but to his Majesty, and to the government. He offWest would be hung, and the other part driven from the country, *^ but (said he) you will be well off with ut." Captain D'Orsonnens told me, also, that formerly there were no laws in that country, but that every one did as be liked, but that it would not be the same now, becauye he had come to establish laws. He sent to fetch me, while, by order of Mr. Dease, I was burning some old papers which had been lying about for a long time in an outhouse. ,_-^:*--,-K# He cofiimancled me to tell the truth, saying that he had as much power as a magistrate, and that, if I did not speak the truth, h« would run his sword through my body, . that he would cut off my head, or that I should be hung. A few minutes after, he ordered a tent to lie pitched, into which he put -me, saying ** you shall renadn •■ there until you take your departure for York, and, if you do not de* " dare the truth there, you will be hung,*' that I did not know the consequence of burning those papers. He let me remain there till the foUowing evening, with a sentinel at my tept. During the time that I was imprisoned, 1 saw two pieces of brass cannon, mounted upon their carriages, landbd at the camp at the portage. I had seen them before mounted upon the vessel of Fort William, and I perfectly recognized them to be the same. There was a pile of balls placed at the camp, next to the cannon. Afterwards Captain D'Orsonneus took possession of all the effects which Were in the fort, of which he took an inventory. The next day I went away for Fort William. De Reinhard went down several days before, with Faille and La Pointe. When I arrived at Fort William, I found De Reinhard a prisoner, guarded by a Meuron placed a his door and armed^ At the end of two or three days he was enhrg- ed, and permitted to go and come at large within the fort. The sentinel was taken away From his door. There were stilt sentinels at the outside u. ~ of the fort. During the course of the winter De Reiuhard went " with one of his comrades to the other side of the river. I know L .. Lo kept a school during the winter, and that Lord Selkirk was master of the fort at the time. Mr. Valliire de SU JJe'a/.— Have you any'knowledge that Mr. Dense was taken by force before my Lord Selkirk to sign a paper ? Solitilor-Gcneral. — The course my learned friend has taken to dis- prove a confession, is very singular, namely, to prove that the conduct of the magistrate may have been wrong in other cases. Can this be ad- mitted ? that a magistrate's general conduct can be examined into, or Ms conduct even in any particular act, however connected with the transaction, is a proposition, 1 think, completely untenable. Mr. Dease M sign it, and whether he did so voluntarily or by force, cannot alter the confession itseh. That was the deliberate act of the Prisoner, pre- viously prepared in his own hand writing, its delivery to the Earl of !^lkirk, as bis confession of the part which he had taken in the murder of Mr. Keveny, is witnessed by four persons. What possible difference can the manner in which they became witnesses, make as to the con- tents of the confession ? not a particle. Mr. Justice Bowen. — In admitting this confession, it should be re- oollcctcil, that we excluded that part beginning, '* Belore Thomas, s ft i- 4 1 !) ■; ;!! A i ■■ ': J? m I: ^■'I n lit '^ : 'j: 1 m ^••If ■( ■!, \ ''H ' :'l t!:l "M f fr !|i: &;^' n I I 4. 1 I IfH I It'* I If • I I I3» Bitrl of Selkirk.*' There «re no witnesKs t6 the confession as we rer- ceived it ; the four witnesses are to a part which the Court disallowed. That, at a certain day, De Reinhard was a prisontr^ and that at ano* tber, he was /ree, is a fact proper for you to lay before the Jury, and they may, if they think proper, connect this liberation with the con* fession. But what possible use can it be, to go into an examination, as to the manner, in which rejected testimony might have been obtain' ed? Mr. Stuart. — We submit, as we are bound to do, to the judgment of the Court, though at variance with our preconceived opinions, but, in illustration of why we thought this question to be within the limits of evidence, the Court will perhaps indulge rae widi the liberty of making two or three observations. Dr. Allan stated that Mr. Dease, attended fit the delivery of this paper to the Earl of Selkirk by De Reinhard.— From that want of candour, fairness, and frankness, which runs through the entire transaction, from the total absence of any thing like candour in those who are at the back of this prosecution, the natural inference which the Jury would draw would be, that Mr. Dease attended volunta- rily. The additional weight given to the paper, by the signature of a confidential clerk to the North- West Company, attesting, that in his presence this confession was made, cannot for a moment be overlookeJ, for if such a persoa was voluntarily present, making no objection, tht evident presumption would be that every thing, being perfectly fair, tb« testimony was irresistable. If, instead of this, we prove he was dragged there by four Meuron soldiers, in the pay of the very magistrate before whom the confession was made, we, I think, account fur the Tiding ofa clerk of the North- West Company's name to a confession, made befor» the Earl of Selkirk, and at tlie san^ time destroy any supposed validity attached to such a paper by that circutasiance. We now wish to prove that this pretended examination, which is detailed on the paper receiv- ed by the Court, is not entitled to credit, and that the pains taken to give it the semblance of extraordinary fairness, is nothing more than a part of that plot of which the machinery was already prepared. Tlie mine was ready to be blown, the train was laid, nothing was necessary but to apply the torch, nothing required, but to have the paper already manufactured, signed by the unfortunate De Reinhard. His power of refasing, and freedom of mind, may be well estimated, if we piove, tliat those w ho witnessed the delivery, were not there accidentally, or volun- tarily upon an invitation, but were dragged before the noble Earl ofS(k kirk, the private prostculor, by four 3Ieiiron soldiers in his own pay.'" We think, that, as such a circumstance cannot fail to involve the volun- f^riness of the confession in doubt, we might be permitted to prove itr 139 and considering that it would produce an essential benefit to the Prison* er, we felt bound to urge the question to the Court. Chief Justice S'ewc//.— For my own part, I can not sec it. Dr. Allan fays he was present beforeBe Reinhard signed or delivered the paper to Lord Selkirk, that Mr. Dease was also sent for and upon his arrival the paper was handed to him. He read it to himself, and asked the Prisoner, " if it was true,'* De Reinhard answering that » the contents were M true.** He is further asked, " do you wish to add to, or take away " from, or alter, any part of the contents,** and he answers, *' no, I do " not.'* Now, had the attestation been admitted, what difference could it make to what De Heinhard did, that one of the witnesses went with, 0r was even taken against his inclination by, four soldiers ? we should be happy to receive any thing, geptlemen, which you, in the exercise of your judgments, may thing proper to offer, but our inclination must be ymited, b^ rules of law. Mr. Justiee Bowen. — The Crown officers objected to your questiop, because you were going to shew, that Dease was himself a prisoner, and from that to lead the Jury to infer that the magistrate, acting wrong in one instance, he viirould ite so in another, and upon that point I consider the objection good. But, if you only wish to prove thai Mr. Dease was not a voluntary witness, as it is in evidence that be was present, I think you can ; but up farther than just that fapt do I think you can use the ({ueiition. Mr. Vavfelson. — We have no wish to use it farther. We merely yvish to prove, that such was the system of lawless violence and outrags carried on in that country, that every thing was done by farce, and tbat opposition was useless, as military authority awed it down. Chief Justiee SewelL — I do not see what benefit is to result from the enquiry. Acts of violence, of military aggression, are proved, indispu- tably proved, and so, unless some very strong circumstances appear to change our opinion, w« shall charge the Jury. There therefore can be no necessity to go any farther* Mr. Stuart. — Under this view of the subject taken by t|ie Court, w* have done with this witness, Attomey'QeneraL — After what has fallen from the Court, we shall certainly feel it our duty to prove that this was not a military force, and that no greater violence was used, than, wliat opposition to legal measures rendered necessary ; therefore the tlefenpc, had better per« haps at once prove it, if they can, because we are prepared to over- turn it. Chief Justice Sewell. — To prove what, or overturn what ? what possi- ble difference can it make to the abstract fart of the confession, whether V. ■■. 4 140 HeW was a voluntary witness or otherwne? it does not influence my opinion in the smallest degree. -«•■-,- . » Crois-exUininaH&n eoltdueted by the ^ttomey-Oeneral. Chretien. — Tlie conversatian of the Meurons was amongst themselvei. Do Reinhard was not bound. I was not lower down than Fort Wil. liam. I first saw Captain D'Orsonneos at Fort Lake la Plu'e, about 01)0 or t\vo Q*cloqk in the afternoon. %♦/ RUDOLPH HALLE!B,» Bwarn, * ■ ■ - -4-. Examinti by Mr, VanfeUon^ ■ t Halhr.—l was at Fort William on the nineteenth of October, 1816, De Reinhard was then there, a prisoner under the guard of a sentinel, «nd he remained so for ten or eleven days. I cannot say that it was thirteen or fpurteen. After that, he was no longer confined, but could go out and in the fort as he chose. I left the fort the sixteenth or se* venteenth of November of that year, and the people of Lord Selkirl; were in possession of the for(, and were so during all the time that I was there. The party was armed and commanded by Captain Matbey, but at first Captain D'Orsonnens had had the commandr ^llfitney-Qt'WTal. — We have no questions to put to Hallcr. JEAW ^EAUER, £'i«om, , And examined by Mr. Siwrl, Beauer.—l was employed the fifteenth of this month to serve an or' der of (iubpoBna upon Mr. John M'Nab, at Montreal, on behalf of tbc Prisoner, l^it I CQuld not D|eet with him. I am a constable at Men. treal. I went to his lodgings, at Mr. Williams', the post office at Montreal. They told me that he had gone away for ten or twelve day$, but had left his things there. 1 tvas afterwards at Longueil, where he sometimes went, and was informed by the Curate, that he had not teen him for three weeks. I cannot say, whether, he is in the lervice of my * The witness being a German, and not speaking English or Frenchi Jasper Brewer, Esq. was sworn to act a# interpreter. "%' 141 I^ord Selkirk or not. The sixteenth of this month I likewise served an order upon a iimn named Jean Baptiste St. Pierre, as a witness for the Prisoner, and he told me be would go ; but that he had received money from Lord Selkirk, and was engaged to depart for Fort William, but that he would go to Mr. M'Kenzie, and speak to him. We were in cousequenc© at Mr. M'Keirzie's office ; he related his concerns to Mr. 31'Kenzie, and thereupon Mr. M'Kcnzie said to him, that he wouM do well to apprise his employer, that he had received an order to set off for Gtuebec. Thereupon St. Pierre said, *' go with rae,*' and on going out of the door wo met one Harnois. [The Attorney-General objected to thie course of examination, but the Court held, that the Prisoner having subpcenaed witnesses, was en- titled to shew lohy he could not bring them forward.] Beauer. — On going out of Mr. M'Kenzie*8 office, one Haraois, a voyageur, said there was, at the top of the street, a friend oi com- rade, *'■ who wants to speak to you.*' He answered, that he could not go, that he was going to his employer's office to settle his concerns, and Harnois told him that Mr. Forrest was not there. Being gorie a littlo farther than the market, we met Mr. Heurter. St. Pierre told him, that he bad received a subpoena, and he asked to look at it, and took the order, upon which I told him that he had nothing to do with it, and he returned t1i6 order to St. Pierre, and we afterwards went to the office ef Mr. Gale, who is, I believe, of counsel for my Lord Selkirk. St. Pierre was called upon his sijd>pt£na, and not appearing the default teas entered. Mr. Gale observed, that his name having been introduced, in a manner llial might create an unfavourable impression, as to the non-appearance of St. Pierre, he uas desirous of explaining his conduct, to the Chief Jusliee and Court. The Chiff Justice remarked that, though his name had been, inlrodueed in the eourse of llic trial, yet it had never been mentioned but with the greatest respect, and tlitU, if thought necessary, the Crown officers miglU call Mr. Gale, but he (ilu Chief Justice,) did not suppose lluil they would. Mr. Gale rejoined, that had his being called, rested with himself, he should not hane interposed any observations, but as it was with the Al' torney'General, lie liadfelt himself bound to protect his oum conduct. Mr. Stuart intimated, that the chain of evidence the Prisoner''s counsel had proposed to pursue, was here broken. They were desirous of shewing a variation, between the testimony given, by certain witnesses at the proceed' ings in Marcli on this subject, and titat, during the present trial. No more iommiisioners being in Court, tlian required by tlie patent, he did not know i .'^l> 'I' t ' ' 'I' 'I • r * 'I i^ ,H- '4 '4 ;. '.4 i'l il '■*} 1 1. ill I- 142 what course the Cowl might approve^ to enable him to allaki this point, which he considered important. The Chief Justice enquired, (Mr. Stuart here hesitating,) whether it was the with of the gentlemen to examine him, emd being answered affirmatively, stated that the difficulty was : " If I com« ** down from this bench how am I to get up again, for it ia as yet an ** unsettled point, whether a judge can retire from the bench, be exa< *' mined, and resume his seat on the same trial." Jfter some colloquial conversation between the bench and the bar, in the course of which his Ho- nour the Chief Justice, recognited as sound law, *' that if the interest of " the Prisoner was to be promoted by the examination of himself, however ** inconvenient it might be, it was a paramount right which his coumtl ** were entitled to insist on. Jn the present case, perhaps, no difficulty might «« present itself, as Mr. Justiu Perrault sat in March, and was not on tk *' bench on the present triaV* It was agreed to obtain the judges attend- ance for examination to^xprrow. ITM. BACHELOR COLTMAN, EsaviEE, Bwom^ . ' And examined Ity Mr. Stuart. m . ,1 I' I' m Mr. Ctitman.—'l was last year at Fort William, and fartlicr in the Indian Territories, in the quality of His Majesty*8 Commissioner for ea« quiring into the troubles in those parts. I arrived at Fort William on the twelfth of June, 1817, I believe ; and I found that fort then in the possession of the North- West Ck>mpany. When I got as far as SaHH St. Mary, (before crossing Lake Superior,) I received a letter froni Lord Selkirk, dated at Fort William the 28tb April, 1817. Mr.Sturat, — Have you, Sir, got that letter? Mr, Coltman being some time in examining a large collection ofpajitrt which he had in Court, m • Ml .'. Mr. Justice Bpiccn.-r-The Crqwn will perl^aps admit that Lord Sel- kirk had possession of Fort William. . 1 Mr. Stuart. — We have not proved the length of time that he re- tained possession of it, wl)icl| we a^re desirous of doing by Mr. Coltman. Chief Justice S^eue//.— What difference is that to make, what if he kept it for ever ? the question is not at all varied, whether, the duratiou •f the possession was fqr an hour, or for twenty years. The fact, that it was in the occupation at one time of Lord Selkirk, and that to the knowledge of De Reinhard, at the time he made his confession, you have proved, as well as that, previous^' to that period, it was occupied by /* 1-W the Norifa*Weit Company^ and is at present in their pOMession. It Uwa eannot be essential to obtain more testimony on that point. Mr. S/u«r/.— With great deference I beg to submit, why I consider it essential, to put before the Jury, the length of time Fort William waa in possession of Lord Selkirk. Let it for a moment be supposed that Lord Selkirk, as a magistrate, entered Fort William in search of, or to arrest, imaginary culprits, that he got them, sent them, in confor- mity to the act under which the warrant issued and was executed, to Montreal, and had then gone away. There, every thing might hava been justified, because it was the legal exercise of legitimate authority. Let it, on the other hand, be supposed (it is an imaginary case only that I am putting,) but let it be supposed tliat, from very different mo- tives, not to take alleged culprits, not to execute a legal warrant, not to pursue a legitimate and authorized course, that of forwarding those whom he might arrest, to a Court, where they would receive protection or punishment, according as they merited ; let it, I say^ for a moment be suppossed that a magistrate could be found, so lost to all sense of du- ty, to insensible to his own honour, so regardless of those laws whick lie was bound as a magistrate to enforce, and as a subject to obey, that, under pretence of executing a legal process, ho should array a military ibrce, lay siege to, and carry by assault, houses and stores, seize and ap- propriate to his own use their contents, arrest, and confine indiscrimin- ately, the proprietors, their clerks, and their servants, tamper with them in their confinement, liberating such as came into his views, and confiDing more rigourously such as opposed them ; I say, if such a ma- gistrate could be found, would the legality of the instrument, from ita having his seal and signature, be a justification for the outrageous course of procedure I have been imagining ? surely not. What ground ts there then, in the present instance, to say that the Earl of Selkirk, as a ma- gistrate, made a legal entry, that in first issuhig, and then in the mode he adopted to execute, his own warrant, he hixd no view but that of the upright and enlightened magistrate, that no private, or interested sug- gestion warped the impartial and disinterested justice of peace, into « partial and interested rival. There is no ground whatever, for such a conclusion, the whole transaction proves the contrary. After entrapping the leading partners, and getting into the fort, he instantly changed characters and threw off the cloak. Instead of culprits, it was property, he wanted, and having got possession of it, together with the fort, there be staid as suited his convenience, six, eight, or ten months. To say that this excess of violence and aggression was necessary, is contrary to common sense. To say that it was not such an aggravated abuse, if ■ot prostitution, of the magisterial character as to merge the magistrate .?<•■,■(* * f „ \.: ■■ 'f immi 144 iP i in the hostile rival, Is, 1 think, impossible. The langiiag«, not only of eommon sense, but of the law also, (for I might multiply nuthoritieff ivithout end,) is, that the moment authority is abused, authority ceaypii, and the magistrate, or officer, becomes only a private individual. I might instance the entry of a sheriff upon a writ of execution ; if nfm- cd admission, the entry although forcible, is a legal entry, and he might proceed to levy, according to sound judgment, sufficient to cover the a* mount specified in his writ, but if, instead of demanding admission by virtue of the authority of his writ, he proceed to break in the premises, or if, having obtained entry, instead of levying to cover the hundred pounds specified in the process, he should wantonly or malevolently seize property to the amount of thousands, is his office of sheriif or writ of execution to protect the abuse ? No. Then I contend, that it is en* sential for me to prove the subsequent conduct of the Earl of Selkirk*, because, I contend, that the moment he exceeded the necessary power to secure obedience to the law, that he changed from the magistrate to tho private individual, on this sound and general principle, that authority abused, ceases to be authority* In adverting to the Earl of Selkirk, it M not to influence the Jury as to these disputes, nor Is it to address tli« passions on the conduct of tlie noble Earl, and the other great commer* cial company; I should be unworthy of the gown I have the honour to* wear, did I attempt it, but I cannot do justice to the Prisoner, except I prove that the Earl of Selkirk, by his subsequent conduct, lost his clia< racter of a magistrate. This I intend to do by shewing, that at tb» date of the letter I have asked for, hin Lord^ip remained in posses^^ioii of Fort William, and must necessarily, from that circumstance, have acted as a private individual, and De Reinhard being therefore, iu a •tate of illegal duress, his confession is good for nothing. 3Ir. Van/elson briefly went over Vie tame arg^iment. Chief Justice Setcell. — Let us see how the question comes before u«, and the grounds of our decision will be evident to every man of common lense. The unfortunate individual at the bar, is accused of the crime of murder, and it is yet in suspense, whether, he is guilty or not guilty. H« is now on his trial before his country, and we are bound to receive every thing offered in evidence for and against him, as far as is consistent with sound legal rules. These cannot be broken in upon to accommodate rither party. How then stands the case, at the present moment ? I have made, (says the Prisoner,) it is true, a series of confessions, but I will shew, such an influence on my mind, at the time of making them, (arising from the hope of benefit, or any thing you choose,) that they aught to be destroyed. Prove then the circumstances producing thi<. inliiicnco ; this you *\o not attempt. Agnin, supposing the confe«jiloti, signwl (he 28th October, had been ilclivered to a gentleman acling at a magistrate and received as such, what can occurrences takinp place in the Micceodlng April by possibility have to do with it? certainly nothing. Hy no possibility can they oHt ct or niter the act finished on the 3d of the previous November. You contend that we ou^ht to allow the question, because the confession was taken by a magistrnte. Wc decided, and we traced authorities to convin6e you, that wc could not reject it as a confession nt common law, and wo received it as a paper delivered by the Prisoner to the Earl of Selkirk as an mdiiiduulf and not in his capacity of a magislrale. llud it been delivered to any body ehc, or been a viva voce confession to any other person, we should have received it, as we did lis previous verbal confessions to Ca;>tain D'Or- jonnens, Vitchio, and others. Under this view, which my h^arned bro- ther as well as myself takes of the subject, I am decidedly of opinion >H)nr question cannot be received. [Mr. Justice Bowen very briefly expressed his opinion of the impos- sibility of entertaining the question.} Jlfr. Stuart. — I would request your Honours to insert my question together with the decision of the Court thereon upon your Honour^s notes, that we may be able hereafter to refer to them, bhould we &ee occasion, as I thidk probably we shall. ' Chipf justice SewtU. — You wish us to admit evidence of the 27th April, 1817, to a fact which transpired on the 3d November, 1816, ■prima fade the iUiiig is impossible. Next, you object that Lord Selkirk was not acting as a magistrate, that we have decided is no matter, for that we have admitted the confession at common law ; so much you may certainly have down if you think proper. ^ , Mr. Justice Boteen, — We have taken it thus. Mr. Stuart, for the Prisoner, being called upon to state what he meant to prove by this letter, answered, " I mean to prove that his Lordship retained posses- " sion of Fort William up to that time, and secondly, that he (Lord Sel- ' kirk,) did not act as a magistrate in receiving the confession of De " Reinhard.'» Mr. Stuart.— I beg the Court's pardon, but I am not so fortunate as to be clearly understood. I intended to prove by the witness the re- tnining possession of the fort by Lord Selkirk ; that I consider a ques- tion of fact ; the other is a conclusion of law arising from the argument I have had the honour of submitting. Chief Justice Scwell, — I will read the opinion of the Court upon your proposition, as wc now understand it. Your question to Mr. Coltman, Nva«, '* havr you got the letter?" Mr. Stuart being called, stated to T r i \ "v' [■ V: Ml ;:. 140 .'I W^ to the Court, tliat ho wMioil by this quotion to prove two pointH.-— *Wirf/, that Lui-«t Selkirk hod remuined In posiesoioii of Furt William, '' until the mouth o( April, 1817, and, from tbenco to infer, that he iliJ " not act M o ulagistrnte when he received the Priioner'i confegMon, ** und, tlici'crorc, that it is not entitled to credit, the Prisoner bein|; in " duretiii." The Court decided " that the letter cannot be read Tor eitlipr " of thrsc piirpoiies: Jir»t, because Lord Selkirk's possession on the 2U(|| " April, 1817, could not, by any possibility, have influenced the decln- '^ ration of the prisoner De Keinhard, made on the 3d November pre- " cedini;, and seconi, that the Court have rejected the examination !', and f saw bun there. In anstccr to a question from the Chief Justice, Mr. Colltrnn stated lluU at that time it was a matter of "public belief tnal himsi./ a'ld Mr,- Vlilchef were the only magistrates of the Indian territory.''^ '^ ^- •: »- Hfr.Coltman. — I saw Dc!imarais afterwards at Lake Ir Tile. He uas brought before me, on the 25th June, by one Michae' M'^oncll, I bcVievc, as a man in the service of my Lord Selkirk, fnun whom it would be rijfht to receive some evidence. I know nn Indian from Red lliver, commonly called Fils de la Peidrix Blanche. I have seen him 'L'veral times in this province, and I saw him about February la>>t, iu the district of Montreal. He could not speak French, as I understood I think he knew a few words; ho could pronounce perhaps some word<. 1 know one M^Natj, and I have seen him write. , , 3fr. Sluart. — LooV at this letter and have (he goodness to say whe- ther it Is the writing of John M*Xab. Mr.VvUman. — I have no doubt but It is his writini;. I have seen tliiN letter before at Fort William. From the s(ate it is in now, it is t\ident that it hasheen destroyod and pasu'd together. {.Mr. Stuart moving that the let.c be read, the Attornry-Grneral objected, on the grounil that there Could be no way of proving M'Nab^s knowledge of any circnmstaiice but by producing him.] Chief Justice Sewell. — It is now half-past six o'clock. The Court . if! wHI thcrcfbrc adjourn tiU eight o'clock to-morrow inuruing, w hon >v« «rii hear you m support of your objections. i'owt adjourned Hll that lime, '''•'' ;-j t fi- .\^: n I .it i ■v ' i ;ii W ' • ' ft i 1 ' 1 U'' ■'"■■ w 1. ^ w i-l Rl i Ml ( hi i ■ <' • ■u ^y. t^ » ,. il','' / {.'..ikfilM .'Si ••/ 'j'i'^tff lit :; !ltv j--A\k' -• ^ A, \,v''» ><.. •' ;'..•.!' lfi//l *■ ■ •-.""« Thursday, mh May, JUl^. • •. I'll*: Ml il »;,'! ."«»■ ■ PRESENT AS BEFOllE. i ;'. I ■ :'! MM ."f I .,jj TAc Jur^ were ea(M Qi'fr,,.anrf 6ci«|f aW present... '''v a Attorney-Qeneral. — A piece of evidence is oflTercil by my learncc friends, to which, though it is very immaterial whether it be read or not. I feel it my duty to object, because it is not tlie best evidence, which, from the nature of the subject, might be produced. Another objection is, that it is not a deposition of M'Jf ab*8, such np, if my learned friend? proved that the deponent was beyond the jurisdiction of this Court, they would be entitled to have let in. That it is totally inadmissible is evi- dent in a moment, for, admit letters as evidence, it would put it into the power of any two persons to destroy any confession. As to this Iet< ter, it never came into the Prisoner's hands, how, therefore, could hie conduct be affected by it? I will not trespass further on the time of the Court. I contend, it cannot be admitted on the general rule that tb» best evidence must be produced, which in this case is M'Nab ; and also that it is a document not made on oath, I might add, and nev«r was iu possession of the P'-isoner. Solicitor-General, — It is b.ai'dly necessary to occupy the attention o; the Court, on a point I consider so very clear. The evidence tendered is, I contend, contrary to every principle, though itn admissibility is urged on the ground that secondary evidence may be resorted to, in tiie absence of the primary ; undoubtedly it may, a legal i^n possibility io produce the primary, being proved. I{ave my learned friends subpoe- naed M'Nab? it' they have, and he has not appeared^ where is their writ of attachment ? If even they had taken these indispensable preliminary steps to the introduction of secondary testimony, and after all, conld not have found him, it. would be a misfortune for the Prisoner; but could form no ground for taking as evidence a document not supported by oath. Suppose there should be occasion to indict jM'Nub for perjury, how can it possibly bp done upon a document not substantiated by uatb' It is unnecessary to remark, that letters pretended to be written tu a defendant, might be made to prejudice his case, or to benefit him, though I do not see that this letter can do either. This case, however, is ranzh m 149 siroDger, it ts not a letter to the defendant, but to a third persoh;' tfftd^ which, I believe, it is not pretended the Prisoner ever saW. I reaSIy consider I should be trifling with the time of the Court, were I to argue further on this business. > ,j,, . ,. . •., - Mr. Stuart. — I have the honour to si^bmit, Oiiti the evidence liMti- Jer, is clearly admiisible. This ia not a letter fabricated a w^'or ten (lays ago, to give a colouring to out defence. It was made in the coun* try ^^ here the pretended confession took -place, and being found loTtg 3go, mutilated' and torn, was put into the Commissioner's hands. A istter of this tenor, being so found, might of itself furnish strong groniids of suspicion, and be at the same time powerful evidence of its genuine character. We did iiot 5ubpoena Lord Selkiric, not doubting but he would be brought here on the part of the Crown. This confession was a matter of such public notoriety, from its having been printed and cir> fulated with the greatest avidity, that we never questioned but hhf Lordship would himself have felt it his duty to attend, though not serv- ed with a subpcena. Ip the absence then of the noble Earl, from whom, were be in the box, we night draw the most important information re- lative to this confession, I submit, that we may consistently with the rules of evidence, introduce this letter. From whom is this letter, and to whom is it addressed ? it is a letter from M'Xab, in the service of Lord Selkirk to Captain Matlicy, also in the !i passcfl upon outjii. It has been suggested that adraissioa mi<;ht lie giveu la thi£ .testimony, under the rule that where the primary evidence could wxt be piro4uced, tjie secondary might be nesorted to. This is the gene- cak rule, not only a» to written testimony given under oath, but uist in, t'u'aroee evidence. Il is also urged » '^ Uiat, us- liord Selkirk is not ** here, thcrejCore it ought not to be ati.nilted ;*' but the »|uestion imnie- ipaiely pnesents iliielf, *' ^> hy is be Qot here ?" have any measures been taken to tenure his attendance ? Vi is not enougJi to say that you ex|iecl> cd„ Irom the nature of the case, he icould liuve been here. If he vms an important witness for the defence, it was certainly the duty of thoH! entrusted with it to have, taken the retjuisite steps to secure his attend* a,ncc. Having faikd to do so, you can not certainly avail younelf of your own lackei^M they Qre termed in law ; nor is it competent to you to say that you relied upon his being produced by the Crown. If D« Reinbard wanted the Earl of Selkirk as o witncFS, he should liave sum- Bionsed him ; lie is witjiin the jurisdiction of the Court, and his attends ance might liavp been secured, or his fjbsencc accounted for in a sati«fac- tory manner,, so as perhaps to admit testimony, to prove that promisof iierc made by him., according to what you allege. A third reason therefore for refusing your ait^ilication, is, that as tlie witnesses were called over on the 22d instant, the Prisoner as well as bis conn- •cl, knew, or might have known, that the Earl of Selkirk and Captain Mathey were not fialled by the Crown, and consequently they might tfktu. have subpoenaed them, if they bad not before. This Ictlrr can not be made evidence. What can occurrences in May, 1C17, have to do with what took place in Novcqibcr, 1816 ? If it is alleged that the letter has iin dnte, ft)r what reason are we to suppose that it was written hijurc, any more than ofler, 'lie confession. Indeed the very f^iee of the letter warrants a ronlrnry conclusion. What can that part of i4, refer to . which speaks of the promixt of Dc Reinhard, if it docs not refer to the confession? -Does not this very uncertainty shew the necessity of bet- ter evidence being produced. If we are to prtsume, we may presume ■nfavourably as weJI as favourably, for if we evade the rule all is hazar tually ? w by ntit burn it ? The 'letter is without a date, it is true« but there is a part of Us contents which indicates about what time it must have been written ; the breakingup of the ice of Uie rlvoTHlkided to ia the li'tter, plainly shews it could not have been written in November^ but uuijft have been penned about the time the indorsement specifies. It i» however perfectly unnecessary to omineut farther upon the subjrct, al- .t..rr:, (Signed) / ■ ' JOHN M'NAB f.r ,it I. . *' [ErXD^BSED.] "" " *' • Letter from M^. John M'Nab to Captain Frederick Mathey, rpgnrd ing Reinhard. May, 1817. '-.;t t:- ■?: ij'.i;>ih «ii .YU. . ;,'-./ i a=ii_»7i. k'lK i" ?^.. !»«♦'•' •' ..i-l; . I " Chief Jutiiee Sewell. — Do you wish to have the letter of the Earl ol Selkirk read? X^'»''^'**^**'*W<«?!' **» iuu iCi<'-> y-t^nii fan' i,iu\. ,«(.• ''^ Mr. Shutrt.—l do not know, as I cannot speak of a document tliat 1 iiave not seen, ffiftn'i bvif ;»*h*3 »8W u .Ijjif^n •♦''>.' s^ /Mi j^," • Mr. Justice Bowen. — ^I thought you called for it yesterday, and that the argument was because the Crown objected to its production. # Mr. Stuart.—l very distinctly stated that my object was to prove that at a certain time Lord Selkirk remained in possesfion of Fort Wil- liam, and, in endeavouring to attain that object, I enquired of Mr " » The mutilated state in which M*Nab*s letter now is, from its hav- ing been torn and pasted together again, renders it nncertnin wbrtli'*'- tlie name is William or Willnn * V i63 Collman if be, in conjunction with his brother commiuloner, txad rih ceived a letter from the Earl of Selkirk. If I saw the letter, and it proved that circumstance, I should certainly wish it to be read, but t cannot state, till I see the letter, whether I am desirous to have it read or not, Chiff Jxuiiu Setcell. — Upon that subject you must exercise your own discretion, and Mr. Coltman hisoun pleasure. We know nothing of 3Ir. Coitman's letters. If be likes to let you see them, we wn have no objection, and, if the Crowit officers consent to their being read, we shall present no obstacle, but we have no controul over Mr. Coitman's let- 4er9, nor Jo U'e ivifii to have any. Mr. Stuart. —I will put the direct question, when did Lord Selkirk leave Fort iTilliam? Mr. Collman. — I was not there when he went away. r n 'I Cross-eramiuatiun conducted by the Attorney •General. Attomey-Generat.^Haye you got Captain D'Orsonuens's deposition pmong your papers ? Mr. Collman. — I have such a variety of papers that I can not say at the moment, but I know that I took his deposition. There are amongst itiy paper's, I believe, de(:larations of persons upon oath to certain facts, which contradict the declarations of Captain D'Orsonnens, made hIso upon oath. I have no right to judge which of them deposed the truth, but I have, without doubt, no personal reason to doubt Captain D'Orsonnens's credibi'ty. Attornty-Gmeral. — Do you consider Captain D'Orsonnens entitled to credit upon his oath ? • . Mr. Coltman. — Undoubtedly, I believe that Captain D'Orsoiinens is MTorthy of credit upon his oath in a Court of Justice. Captain D'Orson- nens acted in the Indian territory with a strong spirit of party, and with fionie prejudice ; but, according to my judgement, always with honour and propriety as it appeared to him. [Mr. CoUuian^s et'idence being read over to tiim, he explained that he did not intend to say that J)e Reinhard toat at libtrty^ but he was usually with, and under the surveillance of Murphy, who seemed to treat liim with coiifidence, as if he (Murphy) was not afraid that he would cicape.] Aftortiey-Ceneral.^'WM not Murphy a constable? Mr, Collman. — I believe we swore him iu as a constable before finding him to Montreal with De Reinhard. Aliwrnty-General. — Is it necessary to guard a prisoner in bringing V h \^ ' ^}'' t 1'^ 1 ';■• ..1 ■ 11 ^HM m '.liilf |: i'^ 1 ''' iBBti '$/<: jBHI 1 i ^':'. Sii;'^' ..ill J64 Iiim iWoiigli the Indian territory in the same manner lis tn a civilised place ? Me. CoUman. — There is no occasion for the same precautions in the Indian country, bic.uisc there is no danger of a prisoner's absconding, for, if he were to escape, lie mu6t, of necessity, perish from hunger in the woods; but, when arrived at Drummond's Island, it is necessary to make use of more precaution. i B^'examincd by Mr. StxMrt. Mr. Simrl. — What distance is it from Druramond's Island to the American shore ? I mean the United States of America. Mr. CoUman. — It is about fifteen leagues, as I imagine, from Drum* mond's island to Michilimackinac. I do not know the distance from Drummond*s Island to the nearest American shore, but it is not great ; and, I considered at the time, that he might have escaped if he had liked. Mr. Stuart. — I have one question more. Has Mr. CoUman been for a long time on terms of personal intimacy with Captain D'Orsonnens? I will first ask you. Sir, how long you have been acquainted with Cap* tain D'Orsonnens ? Mr. CoUman. — I have known Captain D'Orsonnens since the month of July last, and, since that time, have seen him only occasionally. I do not recollect having been in his company more than half a dozen or a dozen oi tlihce, except on business. The Hosbi-e. OLIVIER PERRAULT, S^orn. And examined by Mr. SitiarL tl, : 3Ir. Justice PerrauU. — I am one of the judges of the Court of King^ Bench for ihe district of Q.uebcc, and I sat during the whole of the last criminal term of that Court. I remember the commencement of a trial in that term, upon a bill of indictment for the murder of Owen Keve* ny, against tiie pre;:ent Prisoner, and Archibald M'Lellan ; and I have a knowledge that Hubert Faille, Jean Baptiste La Pointe, and Captain Protais D'Orsonnens, were examined as witnesses upon oath on the part of the Crown. I took notes of their testimony. I have them here be- fore me. 'J hey contain, I believe, all the facts which appeared to me to be of importance at the time of the examination ; and, I am certain, that I wrote down nothing in my notes than what those three personi ilaled respectively in giving their evidence. Hubert Faille deposed that 155 he and La Pointe being upon an iisland in the Rivet* Winnipic, in the summer of 1816, the fifth day after the departure of Joseph, who is called Fils de la Pcrdrix Blanehe, they saw a canoe Avhich same from the Lake of the Woods, in which were M'Lellun, De Reinhard, Cadotte, seven Half-breeds, one Canadian, and Joseph Fils de la Perdrix Blanche, who had a Scotch plaid clock over him, and he deposed that Mr. Cadv)tte said to him in the presence of M'Lellan, •' what have you done with *' the prisoner Keveny?** and he also swore " that ^I'Lcllan caused " the same question to be repeated, and that he answered, ' perhaps he •"will be found again. We have left him on a small inland."' He swore also, " that when Cadotte spoke to him M'Lellan was very near " him, and after that he (Cadotte) had abused us (La Pointe and me) *' for rascals, and that he had said a good nmny things to us, which I do " not now remember." He likewise deposetl that M'Lellan did not s-ay any thing to bim relative to the Indian Joseph. Mr. Stuart. — Is it witbin your knowledge that Jean Haptiste La Pointe deposed '^ that at the time Mr. M'Lellan struck him they did " not mention Keveny ?" Mr. Justice Ptrrault. — Jean Baptiste La Pointe, being sworn, de- posed " that be had received at the same time and placo blows witii a "canoe pole, from Mr. M'Lellan. That he (Mr. M'Lellan) sprang " on shore from the canoe, and struck him with a perch, and that at " that time, he did not mention Keveny, but that Mr. M'Lellan told " him that he beat him for having beat the Indian." I have not got ou Ciy notes that he said that he bad not related to INI'Lellun the behaviour of the Indian towards Keveny, till after he had embarked in Mr. MT.el- lan's canoe. He deposed that, being in Mr. M'Lellan's canoe, the Half-breeds said " that they would kill Mr. Keveny," that 31ainvllle said, " he would have his hat ;" Le Vasseur, " that he would have his " boots." That they made a jest of this in the canoe, and that at the time the gentlemen said nothing, but laughed, and made a Juke of it. Upon his cross-examination he deposed, *' when we heard tlic two guns •' fired we were encamped, and, the weather being calm, one coiild " hear at a great distance." He likewise deposed on his cros6-ox.amina- liun, '* whihst Maiaville related the manner in which Keveny had been *' killed De Reinhard was busy, but that he made use of two expres^^ioti^, " ' that he took bim for a monster," antl that * it was an act of charity " ' he bad done to him.' " I have nut got on my notes that he spoke French like a MeuroD. I have taken it that De Reinhard spoke French pretty well. I have not taken, that on the arrival of the small canoe in the evening after the death of Keveny, Faille s.tid that *' he did not " know whether M'LcIIbd went to look.'* mQ ";. fj IhI I i . f.B i. \ ^!'j ■vm ; ftji ''\ ,p";^ ■ ■It \ i' • _^K ' '■ " ".'iiftj ? 'mm 166 M ■» 'it. . .»« ,1 • ."i » ....«,v:'i ...i .». . • WILLIAM SA^. 5u;or}i, ,' ' Examined by Mr. Vallicre dt St. Real. JIfr. Sbx.— ^I aiA a sworn aufveyor. I am welj acquainted with th'^ line of division betw^n the two provinces of Upper and Lower Canada, according to the proclamation of 1791. The place culled the Dalies og the River Winnipic is niuch to the eastward of a line drawn due iiort on such proof as we have adduced, of the circumstances under which this pretended confession was made, and when we recollect that it is as much an accusation of those whom his Lordship considered his enemies, as a declaration of guilt on the part of the Prisoner, I think it comes be- fore us in so questionable a shape, that we ought to be permitted to shew anything calculated to weaken its claim to credit. But confining my- self to the naked question of law, I contend the evidence is perfectly arN missible. It is to shew that the Prisoner was incapable, (from his igno- rance of the language in which the paper is written,) of drawing up this pretended confession. I repeat that the question is not, what weight this may have with the Jury, but whether we have, or have not, the right to put this strong circumstance in evidence before them. I shall wait with some anxiety to hear what objections the Crown lawyers can make, and as I shall have the honour of replying to them, I abstain from urging any thing in lultlition to what I have submitted. Attorney-General. — The legal objection I make to the introduction of this testimony, is, that it is not the l>est evidence which the nature of the case affords. It is in proof upon your Honour's notes, that the con- fession is in the Prisoner's own liand writing. Admit, for a moment, (hat it was drawn up by another, still he must have known the contents, and if he copied and signed them, he made them his own. That tb(> confession he delivered to Lord Selkirk is in his own band writing, and that, acknowleding the contents were true, he signed it, and delivered it to Lord Selkirk, we have incontestibly proved by a witness, in whose presence the occurrence took place. It is a misapprehension on the part of my learned friends who conduct the defence, when they 8uppo»:e that tny thing done by Lord Selkirk or Captain Mathcy, relative to its be- ing drawn up, can invalidate the confession. If there is any thing, Cap- ■ ,^■ •4t ' ■ 'u\ -It' I 4 "i ';(. ( f ^^.1 150 ■.,/ If; • '>■ ill • ' ') I it?' ,;t lain Malhey or Lord Selkirk should be produced. If it is to be stogg^r* cd at all, it must be by legal testimony, aimed directly at the tacts we bave proved, and not by asking the opinion of this, or any other gentle. luan, as to tiie supposed capability of the rritoner iu do that which it is Ifi evidence be did. Solicitor-General. — The question proposed by my learned friend, I contend, i.s perfectly irrelevant. I a^rce with my other learned fricud, !Mr. Stuart, that, in deciding upon it aduiist^ibility, what weight it may have upon the Jury, ought not to form any part of the consideration, but that its claim to be made evidence ((hould be estimated only by legal fules. But what would be the weight if every thing they offer to pro\e were admitted? What would it prove, but that some time ago the Pri- •oner could not write so M'ell as he does at present, or did when be drew up this confessioB ? What effect it> tlie circumstance, that in his military returns there were some few uiistakes, to have on this trial ? It is, bow- ever, of no consequence to go into an examination of these circumstan* ces, as it is a matter of complete indifference who guided the pen in tbe making, or preparing the confession, which we have given io'evidence, inasmuch as we have satisfactorily proved that he knew the content!, and before he »igned it, acknowledged to one of his fellow servants that ihey were true. 1, therefore, oppof^u the question ; Jirtt^ on the ground taken by the Attorney-Cieneral, that it is not the best evidence; and iuondly^ because it is totally irrelevant, and therefore inadmissibie. Mr. Stuart. — My learned friends state indistinctly, or rather misap- ply, the point thut we do not produce the best evidence. For the pur* |iose we have in view, I contend, that in producing 31r. Brewer, we do exhibit the best testimony. In producing Mr. Brewer, we exuiuinea person, from whose situation in the gin by proving, if you can, that it was forced upon him in iolo, or that it resulted from an undue influence exercised over his mind, but the ose or the other must be fiubstantiated by posiitive evidence. Before that is done, you ought not to expect us tu tell the jury that they arc bound to put this confession altogether out of their consideration, for we can Dot do it. Relative to Mr. Dease, I consider your argument to make against him. You say he was a witness by compulsion ; a witness to what? to De Reinhard being /oreeJ to sign this paper again^'t liisuill. Where is Mr. Dease? Whose duty was it to bring him here? Cer- tainly the Prisoner's. But what if Mr. Dease was an unwilling, or compulsory, witness ; what if Lord Selkirk said, this man is about making a confession, and you, as one belonging to the same employ, shall see him make it ; you shall be present, and see all that pasKS* shall yourself read his confession, sliall witness that every thing is done fairly on the one side, and voluntarily on the other side ? If it it said that Mr. Dease was not sent for till the whole machinery had been pre* pared, still the fact returns that with the Prisoner is the knowledge of who was present. The same thing occurs relative to the writing. If he did not write it himself, must it not evidently be within his know- ledge who did write it ? and, yet, without proving that any eflfort ba< been made to bring these persons here, you ask to go into evidence to prove that the Prisoner did not write it. I am sorry, at all times, to exclude any thing in the hhapc of testimony brought forward by a Fri' Koner, or Lis legal advisers, but, when compelled by duty to do so, I 161 curl not help it. I am decidetlly of opinion thU qucitton can not bt •limitted. [ Mr. JuitiM Bovven lummarily itataU bit conourrtnca with Um Chief Juoticp.] .'?■■■ Examinatton renmed by Mr, Fan/e/«oit. Mr. Bretver. — I never saw any writing of tlie Priioner's so correct a« iliis declaratiuii ; liiii writing was always full of errors. I know Ca|ituiii OrsunneuH, and I have often seen biin write. The signature to tills i)u|)cr, n«)w produced to rac, is the proper hand«writlng of Captala D'Orwnncns, and the qu>«iifications which follow the name, resemble it, and I have no doubt that tlie wurds " captnin commanding the fort of "Luke la Pluio," are in the proper hund>writing of him, Captain D'Orsonncns. , The CnpUulalio%i between Captain D^Orsonnent and Mr. Deaie vat put in and read as follows ; (TRANSLATION.) The ainrming circumstances under which the post of Lake LaPIuie h, at this moment, placed, have cumpciletl Copt. P. D'Orsonnens to seize the arms and ammunition of the fort occupied by the North- West Company, for the safety of His Majesty's subjects who are on the spot ; this measure, inditipensinble for the tranquility of the public, depriving Mr. J. Dca«c, chief of the post, of the meant of trading with the In- dians, who might make a bad use of the arms and ammunition they might receive. Bc^ideH, Capt. P. D'Orsonnens having it in his power, to assure upon his word of honour, that he is every moment in expectation of a regular order, conformable to law, for the quitting of the fort occupied by the North-West Company, Capt. P. D'Orsonnens, and Mr. J. Dease chief clerk of thp North- West Company at Lake La Pluie, have deem- tA it expedient for the security of every individual involved in the pre- sent circumstances, to take an inventory of all the eflfects belonging to the }{orth-Wekt Company in the place, including the Caches of prott* siom*' which may be announced until the end of the year, in order that * Caches are hiding places, cither dug in the gronnd, or placed upon Kaffolds in the interior of the woods, where provisions and other arti« clc9, are secreted during the winter, or during the absence of the pro- prietors, to be fetched away in the spring or on their return. The Ca- ches alluded to here were depots of wild rice collected by the Indiana and others for the ds^of the North- West Company. w • . ■ hk. \ ,n ■ ' n 162f the whole may he faithfally delivered up to the clerks of the Hudion'f Bay Company, who are present on the spot : that Company will ren< der an exact account, according to law, of all the matters which will have been delivered to their clerks by those of the North-West Compa- ny, Capt. P. D'Orsonnens rendering himself responsible for the execu* tion of tbis arrangement. (Signed) P. D'ORSONNENS, Commanding the post of Lake La Pluie, (Signed) JOHN ,W. DBASE, Chief Clerk for the North-West Company. WITNESSES. jAcavES Chastrllain, Clerk for the Iliulson's Buy Company. Loess NoT.iir, Clerk for the Hudsan^s Bay Company, ii Cross-examination conducted by the Athmey-GeneraL Mr. Brewer. — I left the regiment before De Reinhard, in 1814, to wards the end of the summer. When I spoke of his knowledge of the French language, I fpoke of bis knowledge at the time, ai I have not «cen him since. Mb. WILLIAM S. SIMPSON, Strom, And examined by Mr. VaUiere de St. Real, [■>;i>A Mr. Simpson. — I was present during the trial of Charles De Rein" hard, and Archibald M'liellan, in the Court of King's Bench in the term of March last. I was present during the whole trial, being em* ployed by the Earl of Selkirk, to take the proceedings stenographically, which I did. I remember that Captain Protais D'Orsonnens was exa* mined, as a witness on the part of the Crown, in that case. Solieilor-General. — I do not know what my learned friends intend to prove by this gentleman, nor, indeed, do I conceive they ought to be permitted to examine him, as, certainly, his notes of the trial are not the best evidence. If my learned friends wish to prove contradiction! in the evidence given on the two trials, there are your Honours' notes, or the notes of Mr. Justice Perrault, taken under oath, which they cai cefcr to. Mr. Justice Bouen. — It is certainly a most extraordinary, not t» say indecorous, proceeding to examine a short-hand writer, who i« d9* 163 upon oath, to disprove the notes of two judges who take notes under (Jieir oath of office. Mr. Valliere de St. Real. — We were merely going to ask Mr. Simp- son, whether or not Captain D'Orsonnens did, according to his notes, in describing the sort of French De Reinhard spoke, say, '* It park Frari' " (ois astez 6ten, il park romme un JUcuron.'^ His Honour Mr. Justice Ferrault, probably thinking it of no consequence, did not take it, though Captain D'Orsonnens certainly did make use of that particular expres- sion, in describing De Reinhard's mode of speaking French. It is, how- ever, of no consequence. I believe the case on the part of the Prisoner, is now closed. Mr. Stuart.^~Fot form's sake, we wish to put in and have read, the Prince Regent's proclamation. Attorney-General. — We have no objection. A copy tras then offered^ but being printed at York, was objected /o, as not being an official production. A copy printed at Quebec by his Majes- ty^s law'printer was there/ore sent for. Attomey-GeneraL-^We shall now proceed to call wii.-^esses, to rebut the allegations relative to the excess of force or violence, which has been so frequently adverted to in the defence. Mr. Stuart. — I certainly object to any farther evidence being gone into. The Crown closed its case, and we entered upon our defence- Nothing remains now but the argument, which we are ready to enter upon. Attorney-General. — I beg my learned friend's pardon, hut the matter is not quite so near settled. The necessity for our exhibiting additional testimony, arises from the nature of the defence they have set up. My learned friends have made their principal reliance, the state of the coun- try, where we allege the murder to have been committed. They have represented, that a state of warfare, (called by them a private war,) existed, and that the confessions we have proved, all resulted from ter- ror, inspired by the presence of a military force. Now, we desire to rebut this testimony, by proving that it was not a military force, but merely a number of persons fupporthig a constable, and enabling him to execute a legal warrant, which had heiiu roi>isted. This is completely new matter. It was not alluded to on the part of the prosecution, so as to render it necessary for the Prisoner to disprove our statement. My learned friends have brought it forward, as their mode, of accounting for a series of lira voce declarations of guilt on the part of the Prisoner, ter- minating in a written confession made at Fort William. I should cer- tainly think I might call the officor, who had to serve this warrant, to > If ,iM if fhy * : 4 ftv 1G4 shew that he was resisted in the execution of the process of a civil ma- gistrate, and that the force that wm used, was no more, than what was iadispensibly necessary, to enforce obedience to the authority of a civil magistrate. Solieitor'Gtneral. — I should contend, may it plea.«e the Court, tliat ^'6 have a right to impeach the defendant's witnesses, as well as the de* fendant those of the Crown, if not, we do not stand upon equal ground. If unfounded statements are made by witnesses on the defence, are we to be debarred from rebutting them, because we have said our case was closed ? I should think not. If our witnesses are impeached, shall we not he permitted to rebut such impeachment i' I do not mean to say, that the course we propose to pursue, is a usual proceeding, because it is not often that it is rendered necessary, but it is certainly a very jtisti' fiable one. I do not know that I can refer to any actual authority up* on the subject, but the reasonableness of the proposition renders it un- necessary that I should. A defence usually consists of a negation of that which has been proved on the part of the prosecution, but the de- fence set up in the present case, is not a simple denial of the facts brought forward by ut, and this denial supported by evidence, but they have gone into a long investigation of a number of witnesses to shew, tbut a «tate of warfare existed in the Indian territory, and that as it was under the influence of terror that the several confessions were made, therefore they ought to be set aside. We wish to shew, that no such thing ewi- ed, and that all the violence, (if any was resorted to,) was rendered ne- cessary by the resistance of legal measures. We could not anticipate the defence, but as in it, they endeavoured to iinjteach our witnesses, we have a right to examine witnesses and produce evidence to rebut it.— Where authorities are silent on criminal subjects, the rule is to have re* ference to civil cases, and here we hhall certainly find precedents to jus- tify the course we are desirous of following. When I'le defence consi^t5 of an impeachment of a plaintiflf's witnesses, the Courts at Westminiitcr Hall daily present instances of the rebutting such evidence by the exa- mination of additional witnesses, and if it is allowed in civil cases, why should it not be in criminal ? We wish to prove that a warrant was issu- ed to arrest certain persons, and that in consofjuence of its being resisted, it was necestary to employ a number of persons to sitpport the liocsta- hie, and thus rebut the charge of a military force hrving been pmployotl. Mr. Justice Bowen. — In M'Nally, 380, this point is considered. He says, " if prisoner's counsel examine witnesses to general character, " or to particular facts, then the witness for the Crown, thus impeached, ** is entitled to rebut these facts, and call witnesses to his general cha^ *' racter." 165 dolicUor'General.— The same doctrine is laid down also by Mr. Bv roD Gilbert, aod in Philips. Mr. Stuart.— In reply to my learned friends, I beg to remark, that, vriinA facie, a very strong presumption against them, is, that they are completely out of the regular courrie. We daily see criminal proceed- ingfi, but we never before heard such a thing asked by the Crown, as tq be allowed, afier the defence is gone through, to produce additional evi- dence against a prisoner. The otfiuers for the Crown, after producing the evidence on the part of the prosecution, declared that they closed the case for the Crown ; and then the Prisoner proceeds on his defence, ami iiilroduces his witnesses, for what purpose, but to rebut that which has been exhibited in evidence by the Crown ? After his case is closed, jre the Crown oflficers tc rise again, and ask to produce more evidence, because they feel they are too weak, and that conviction will not fol- low? Certainly not. What was the case which the Crown had to make out? That the Prisoner at the bar had committed the crime of which they accuse him in the indictment. To do this, they examin':'d n number of witnesses to support, by parole testimony, a written con- fession, and, when they thought they had fully established his guilt, nnd bad ensured a conviction, they informed the Court they had closed their case. We were, accordingly, put on our defence. In the prosecution of it, have we proiluced any new facts ? any facts unconnected with the case they made out ? clearly not ; but we have opposed to their evi- dence, testimony which contradicts it, and does not that occur upon every trinl Ihut takes place? How did the Crown prove its case? By getting admitted a number of confessions. How do we prove our*s? Wc shew circumstances, which, we contend, will lead the Jury to give no credit to thtra. Are the Crovvn officers now to turn round upon us, and say, wc did not know, or to u.<*e Mr. Solicitor's own wordj^, " We " could not anticipate your dcf.ince," we must strength-^n our case or you will esv-ape? M'hat was our object in meeting the case of the Crown officers ? Our sole object was to prove that these confessions were not entitled to credit, but we did not do it by attacking the cre- dibility ci' their witnesses. Wc produced a number of facts, which we thought well calculated t;; rrniove any unfavourable impression they might havc made on the on the minds of the Jury. For example, m'c proved a capitulation between Captain D'Orsonnensand Mr. Dea.'-.', und that, in signing it, Captain D'Orsonnens styled himself, " Captain "commanding the fort of Lac la Pluie," for what purpose was this done? why. that the Jury might contrast this fact wjth the declaration of Captaic D'Orsonnens that he was nothing more than **^un iitdiiidti " ihnpk.''* As a substantial fact, we ollertd evidence that Fort William i i^ "it I ..I' 1 :i m m ' 'fi i.-!H •4 " I i K ■i! Mi I I- li 166 u III' . Pit;v h ^89 iaken by a military force, and that De Ketnhard knew of it. Is not this the very eubiitratum of our defence ? are not these facts a part of Xhe ret gesta ? and is it not in direct contradiction to that exhibited by the Crown ? Bui is this impeaching their witnesses so as to entitle them to come to your honours, and ask permission to examine addition* al witnesses ? Certainly not. The distinction between this case and that, is a marked, is a broad, distinction. Our impeachment of the wit« neisses on the part of the Crown has been by shewing faets, and nothing now remains, but for the jury to judge, on wltich side credibility prepon- derates. It is really painful to be obliged, at this late day, to argue first principles, but the request of the Crown ot&cers compels me to trespass on the time of the Court. Allow me to advert to the every-day occur* rences of our civil Courts, (as the learned Solicitor General remarked, *' that, when criminal authorities were not to be found, reference f^hould *^ be had to the practice in civil cases") and ask where I am to seek for the authority that allowed a pluintilfto say, after the defeiice, that the wholt of his case had not been brought forward, and then permitted him to bring more testimony to strengthen his case ? Such an authority can not be found, for the plainest of all reasons, because, if ever it has been asked, it never lias been granted. If it were law, that whenever a wit- ncjis was contradicted by positive facts being sworn to, that the ca»e should, as it were, be re-opened to let in more testimony, wo have all ol us most miserably misunderstood the law up to this moment, and it is, indeed, high time that we desisted from practicing it. But, so far from being law, it is to subvert, to destroy, to overturn, the very fundamentui principles, to root up the very foundation, on which the superstructure of law is raised. Admit this doctrine once to be law, where are we to iitop ? If the Crown is to rebut our testimony, it can not be denied Ui us to rebut theirs, and fpr how long is this rebutting to continue ? What is the criterion by which its extent is to be limited? Who is to have the last blow ? The Crown finished their cKise, aud we began, and be- cause we have shaken it, are they to siep in and say, now we'll bring in more testimony? Because we have shewn, incontrovertibly shewn, that these pretended confessions were forced from the Prisoner by the peculiar state of the country, is it competent to the Crown now to bol- ster them up by additional evidence? It was a part, an integmi part, of their case to have shewn, if they intended to prove the guilt of the Prisoner by his own confessions, that, at the time he was making then), he was free, that there was not even a shadow of suspicion that he was otherwise. This they did not do, but, seeiig that we shew he was not free, not or.Sy not free, but that he was actually in a state of illegal tin- ress, tl.py say we have impeached the credibility of their witnesses, and, 16) therefore, tbey are entitled to go Into evidence to support them, and t Chief Justice Sewell. — The very object of a trial by Jury is, between affirmation en the part of the Crown, and negation on that of the accus- e»l, to di«c(>v; r thti «i uth. The Crown, in the first instance, (take a cafe of homicide, for example,) ...or? the guilt, the defendant brings aifirma* tive testimoivy, and alleviates the ofience from homicide to manslaugh- ter, which has a tendency to abridge the punishment. The Crown say!:, I affirm, and am ready to prove the defendant stabbed him. A. comci into Court, on his defence, and says, I am not guilty ; B. met me in the street, and drew his sword on me, and it was in self defence I wounded bim. llore arc two aflirmntlons, one on the part of the Cro"'n. that it 169 Va certainly it must. A word with respect to testi- mony. All persons brought before the Court are presumed to be ho- nest, it is therefore not necessary that the Crown should prove its wit- ncjiscs to be entitled to credit, because the presumption is that they arc H). The dolbndant comes forward and discredits this testimony. Siwill not the Crown lie permitted to prove this deroigation is not correct ? certiiiuly it must be ulluwed. These are principles which the Court has uUvny.o held and actod n^ton, and it must continue to do so, till it gets bptter light upcm the suhject than at present it possesses. But, on the other htiiid, tlio Crown must invariably bring all its case forward at once, or how shall the Prisoner know what he has to answer ? If the_ contrary were allowei!, n Prisoner never could know what was necessa* ly to his defence. Were it permitted to hold back any part of the case, then, neither party knowing whether the whole wore finished, the de- li.'iidant would proceed to build lii>i case upon the other, and the Crown roniinjZ; in with that which before it held back, would render a reply nrce<$ary, and thus the case would become involved in what may bit called a conjplete broMillirie, a word I mnke u>ic of, because I know none in English which so fully expresses my meaning. Tht Prince Rei^ait^s Proclnmalion teas tlicn put in and read. \\\ His Kotai. Highness the Pkijicr op Wa.i.f.9, IIecent of the i'niied Kiniidom of Grmt-Brilain and Ireland, in the name and on //it behalf (f His Majn'y. A PROCLAMATIOX. J. I. SHKRBnOOKE. Whkiieas by an Act of the Parliumeut of the United King- ilimof GreiU-lJritaiu and Ireland, y.assed in the forty-third year of His M.tjvsty's rei.i:ii, entitled " An Act for extending the jnrii>(liction of tho ■ I'ourts oi Jii>;tif;e in the Provinces of Lower and Upper (!unada to the trial uMc' punishmenl of per«;ons guilty of crimes and olVenccs within ' certain p:irts of North- America, adjoining to the said provinces," it is ■ iinongst otli'T thin<^s, rnacted, that all ottences committed within any " oltlic Imii.tn Territories, or parts of America not within the limits of " cilher of the said Provincci", or of any civil government of the Unit- ' Oil States of America, shall be, and be deemed to be, oH'encea of the " same n!il;ire, and shall be tried in the same manner, and be subject to "die same puni.'-lnnent, as if the same had been eommilted within the 'will Hfovinces (f lov.-t.'"' irpi)«r Cunf^da." And whereas, by the " ?] .-I i '? II 1!^ , 1 \ , r I' I i -. m > t I! vi fc'{J i.u.rv i:< 170 kuiil Act it is ulfo enacted *' tliHt it fcliall Ik; iHwful for the Governor, cf " Lieutenant-Governor, or person uilniinistcring the governnifnt, fin- *' the time being, of the Province of Lower Canada, l)y commission, tin. *' il(r hi» liniHJ untl seal, to antlinrize nn«l empower, any pcrfon or jitr« " f^ons wiiere«oevcr reMilent or being at the time, to act at civil mugis- " trates nnd juhtiues of the peace, for any of the Indian Territories or " parts of America not within the limits of eitlicr of the ?iiid Provincof, •' or of any civil government of (he United States of America, a» well as *' within the limits of either of the Hiid Provinces, either upon inforiim- " tions taken or given within the haid Provinces of Lower or Upper " Canada, or ont of the said Provinces in any parts of the Indian Tcrri- " tories, or parts of America aforcMiid, for the purpose only of hearin;; crimes and ofl'cnccs, and committing any person or persons guilty ot any crime or olfenre to safe custody, in order to his ur their being cuii< *' veyed to the said Province of Lower Canada, to be dealt with accord- " ing to law," and '* that it shall be lawi'ul for any person or per^oih " whatever to apprehend and take before any persons so commissioned, " as aforesaid, or to aj)prehend nnd convey, or cause to b? ^ufely coii« •' veyed, with all convenient speed, to the province of Lower Canada, " any person or persons guilty of any crime or offence, there to be ilo- " livcred into safe custody, for the purpose of being dealt with ucconl- " ing to law :" And wlicroas, by the said act it is also further cnatttd, •' that every such offender may, and shall, be proscriiled and triej in •* his Majesty's Courts of the province of Lower Canada, in whiili '^ crimes and oiTenccs of the like nature are usually tried, and where tin: *' snme would have been tried if such crime or oll'encc had been coiiimii- *' ted within the limits of the province w here the same shall bt* tried iiii- " der the said Act ; timt every olfender, tried and convicted under the " siiiil Act, shall be liable and subject to such punishment as may, by " any law in force in the province where he or she shall be tried, be *■'■ inflicted for such crime or ofl'ence, and that such Court may and i'hall " proceed to trial, jud;5ineiit, and execution, or other punishment, I'ur " such crime or olfencc in tl>o same manner in every respect as if sutli " crime or oflicnce had been really committed within the jurisdiction ut " such Court, and to proceed also in the trial of any person, being a " subject of hiii Miijosty, who shall be charged with any olleiicc, iict* '■ withstanding such olleiice shall appear to have been committed with! " tlio limits of any coL-ny, settlement, or territory, belonging tu aiiy *' European slate." And, uliereas divers breaches of the ptace, aiul acl» of force and violence, have lately been comvnittcd within the f aid Judiaii territories and parts of America mentioned and described in iI'l' )^ui\ Act of PariiutjUMit. ■'orll>-W«'st Compnny rosurcllvtly, and other p«r<;on!», tljcir scrvaiits, n^'Piits, or (uilicrontx, of whom Fomn h:ivc rntrrod into, und M-izpd, and ncnipicd by force, and with fctroni; hand, land;) or posscrhionx therein, taking, and, hy force, rctaininj^ divers p^oods, wnros, met-chandi/c, and (ilhor property, and obstruciins; the pa«.«nm' of navigable rivers, and nllipr natnral passes of the country, nn«l others have met to^^cther in uiilavvful assemblies, formed divers onspiracies and conrcdfracics, com- milled nnirders, riot?, routs, and affrays, and njipoarcd, ^rone, and rid- den, in companies in military array, with armed force, and have rescniul iliomselvrs and others from lawful arrest and custody; We do, there- « fiirr, in the itainc and on the l>e!ialf of his Majosty, publish this proria- iMtion, liorcby calling upon ihc ^aid merchnnls, sons aforcsnl;| carrying (III trade and commerce, in the said Indian territories under the name of llie Hndson*8 Kay Company and the North-W«.'st Company, respec- tively, and upon each and every of them, and upon all other persons, llieir servants, agents, or adherents, and each and every of them, to ilcsi«t from every hostile aggression or attack what.stievcr, nnd, in order lo prevent the further employment of an unauthorized military force. We tlo hereby require all persons who have been heretofore engaged in lii> Majesty's service as otficera or scddiers, and, as sucli, have enlisted ami engaged in the service of the said Hudson's Tiny Company, or North Weft Company, or either of them, or of any of their yervants, agents, iirailliorents, to leave the service in which ihcy may be so engaged, v.iiliia twenty-four hours after their knowledge of this I'rocbunation, miliar priinlty of incurring our most severe displeasure, and forfeiting ncry privilege to which their former eniploynient in his ^Iiij(i>ly's ser- vice would otherwise have entitled them. Aud we do, under similar lieimlties, hereby require of all and every person and persons wlmmso- 'ver, v.liom it doth, or shall, or may, in any wise concern, tlierestitu- lioii of all forts, buiblings, or trading stations, with the propeity wliich I'liy contain, whiih n>ay have been sei/t'd or taken povscssion of, by fiiiier parly, lo llie parly who originally cslablished or ciin^lrncted.tho *:iiic, and were possessed thereof previous lo the i'^uent disputes between 'be afofpsuid companies; ami w»' do hereby require, in like manner, of •"'Cry person and persons whomsoever whom it dolh, or shall, or may, 'lisny way concern, the removal of any blockade or impediment, by ^iiieh any pnrty, person, or persons, may have attempted to prevent or i''tnnipi the free passage of traders or others of his Majesty's snbjccls, 'i" of the natives of the said Indian territories, with their uicreliaiulize, ■ irr, provisions, and other ciVocl', throughout the laKcs. rivort, roads t i i Py ri'.3 r* : I w I I It- ■• . w'' ' ■ ' ■ffii MHil.r , 1. iB^SI "^ * 'wrf ' ' ' ■ mm^ lii'* -|M B. pi ■ll' §1 ^^KS^& ■ ;,'^°'^^ ■P: ' 1^ 1 ^BK'-4^I ^^^"r ' W % I^^Klqf IJ WM and every other route or eommunic'itiuii heretofore u»e(] for the purpo^rg of the fur trade in the interior of North America, aod full and free per- mission for all persons to pursue tlicir usuril and ucuustoincd trade witli> out hindrance or molestation, hereby dt( lariug Jiat nothing done in consequence of this Prot! imation j-nall, in any degree, be conndercd lo affect the rights which may ultimately be adjudgetl to belong to eitlur or any party, upon a full consideratioq of all the cirL■um^tance8 of their several claims. And, whereas for the purpose of restraining all offences in the said Indian territories, and of bringing to condign punisliincat the perpetrators of all offences there comniillcl. His Excellency Sir John Coapo Sherbrooke, Knight Grand Cross of tiie most honourable military order of the Bath, His Majesty's Captain General ami (.iuvei- nor in Chief, In and over the provinces of Lower and Upper Canad i, Nova Scotia, New Brunswick, and their several dependencies, J.icuto nant General and Commander of all his Majesty *s forces in the said provinces, k.c. kc. &c. by and with the advice of his Majej.ty's Execu- tive Council of and for the said province of Lower Canada, hath no- minated, constitnfed, and authorized, the houotirublc William Bacbclor CoUman, one of the members of the said Council, a Lieutenant Colont! in his Majesty.s Indian Department, and one of his Majesty's Justices of the Peace for the Western district of the said province of Upper Ca- nada, and Jrhn Fletcher, Esq. Barrister at Law, one of the principal police-magistrates, and Chairman of his Majesty's Court of Uiiurttr Sessions for the district of Q,uebcc, a Major in the said department, and one of his Majesty's Justices of the Peace for the said Western district of Uppf'v Canada, to act as civil magistrates and justices of the peact: for the siiid Indian territories, and parts of America aforesaid, as well xvithout as within the said province of Lower and Upper Canada, under and by virtue of the said Act, and also his Majesty's special coramis- sioncrs, for enquiring into, and investigating, all offences committed iu the said Indian territories, and the circumstances attending the same, with power and authority for such purposes. Autl, whereas the said William Bachelor CoUman, and .John Fletcher, arc immediately about to proceed to the said Indian territories, in execution of the trust sn re- posed in them. W^e do, therefore, hereby strictly charge and commuiul in the name and on the behalf of bis Majesty, all sheriffs, bailiffs, con- stables, and other officers of the peace, and all others his Majesty's ufli- cers, servants, and subjects, civil and military, generally in their several and respective stations, to make diligent enquiry and search, to discover and apprehend all persons who have been, or shall be, guilty of any such crimes or offences as aforesaid, or any other crimes or offences whatsoever, within tho Indian tnritories or parts of Apiericu in th| i !! > m, ■■ % 17.^ ,aiil net luotitioiietl and dviicriboil, whether without or within the snli) pruvinccH of ITpppr or Lower CRniulu, und to cauve them to be carried before the said Uilliiim Buchrlor Coltinan and John Fletcher, or one of them, or Hiich other inH^ititrutfg uf may horeafter be appointed for thp iil4c purpose?, or olhci-wisv be invented with competent juriMliction III that liehair, to lie dealt willi according to law, and by all lawful lacftiift and ways whatsuevi:r, to repross und discouraj^o all such crimes auii ufll'nces, re(|uirin{; and directing them and each of them, as well ui(luii the said Indian territoriu!;, or parts of America, as elsewhere, to be (tiding and usMsting tu thu nn\i\ William Uachelor Coltman and John I Ictclur, i|i the execution of the dutit!) w herewith they are cji^trtsed at tii^h DiagidtrutC!) and fipecial cQniini.s»iuners as aforesaid, in all their en- (li'itvours for tlie repression and discouragement of all such crimes ani! oirciiccH wheresoever, or by whomsoever perpetrated or criramittcd, for (he tlcteclion and apprehension of all suclt persons as have been or hcro< sil'ttir jhail be concerned or implicated in the perpetration thereof and for the maintenance and preservation of the ice and of the laws. In faith and testimony whereof, \ i^y our uxpress command, in the name and on the behalf of his Majesty, liuvu caused the great seal or the province of Lower Canada to be heieunto affixed. Witness our trutty and well beloved Sir John Coape Sherbrooke, Knight Grand Cross of the most honourable military order of the Bath, Captain Ge- neral and Governor iu Chiefof the said provinces of Lower and Upper Canada, Nova Scotia and New Brunswick, Lieutenant General and Commander of all his Majesty*H forces in the said Provitici-s, &c. &c. at jiie Castle of Saint Lewis, in the City of Quebec, in the said prO"» vincc of Canada, this third day of iMny, iu the year of our Lord Christ, one thousand ei^^lit hundred and Fcventeeji, and in the fifty-seventh year of his 3l»jesty's reii^n. J. ?. S. ' JBj/ Ills ExcelkncijKs c.nmmand, JOHN TAYLOR, Dcjilj. Sccly. [The evidence on the part of the Crown, and of the rii^oiier, being thus closed, the Chief Justice enqnircd what course tlie counsel proposed toptu'sue in the argument to be subraitled to the Court. Mr.Sluart (My that he should open it with some pieneral observation?, and Mr. Vallien would follow him, and produce the authorities they wcie tlesir- oas of oH'cring to the consideration of the Court. Mr.Siuart remark- ii'ft', that he could not help adverting to some of the/ac/5, which had ap- peared iu evidence ; the Atiomey-Gcneml objected to any obscrvutions ■ 1 I t •u : ■ ■<■ 'i 1 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I S Hi ■" 1 1.25 ||U ||i.6 < 6" ► Hiotographic Sciences Coiporalion 23 WEST MAIN STRICT WEKTM.N.Y. 14SS0 (716)872-4503 174 being maJe on the evidence, alleging there was little difference between addressing the Jury, and remarking on the facts of the case. The cor- rectness of this observation being assented to by the Court, Mr. Stvart continued, that from what hnd been shewn on the defence, he .^houid con- tend, " that the confession is not now admissible eyidence to go to tht " Jury." The Chief Justice stated, that the point having been decided, Mj:. Stuart could not now be heard upon it ; ^fr. Justice Boven observinp:, that in arrtsi of judgment, (should the proceedings unfortunately reaclj that length,) it might be argued. The Prisoner's counsel not appearing to actiuiesce in this decision, tlio Chief Justice explained, that in admitting it as fit evidence to go to tht Jurt/, the Court did not deprive them of their right of deciding what ae- dit was due to the confession. He reminded Mr. Stuart that it bad been received, because — " after very fully hearing him on the subject, as well '•' as one of his colleagues — no case had been made out, that could justi- *' fy the Court in withholding it from them ;" and in conclusion observed, briefly,*" that it went to the Jury accompanied by all the circumstances ♦' which it had been contended, ought to invalidate its credit; and as " that was the tribunal which must decide the point, jt was useless to " address the Court on the subject." 3rr. Stuart disclaimed any intention of arguing against the opinion of the Court, although he had not consi^lered its former decision as com- pletely debarring him from again adverting to the confession ; especial- ly after such 'strong additional ciicumstances had been proved. The Chief Justice remarked, that the Court could not resume the subject as it was finished, but intimated, that on the point which Mr. Valliere had stated they wfshed to argue, it would hear Mr. Stuart with pleasure.] 3Ir. Stuart. — In excepting to the jurisdiction of the Court, I beg leave to remark, that it is an exception of the counsel of the Prisoner only. Our opposition does not arise from apprehension as to the ver^ diet of the Jury ultimately being that Dc Reinhard is innoeenl ; but your Honours know that even of /ec/jju'ca/ objections, where the life of a defendant is at stake, it is the duty of his counsel to avail themselves; and although we entertain no doubt of the acquittal of the Prisoner, yet in the duty which, as his legal advisers, we have to perform, we feci ourselves compelled to neglect nothing that, by possibility, can lead lo it. We, therefore, except to the jurisdiction of the Cpurt. As I shall have the honour of being followed by a learned frjend, who has bestow- ed considerable time and attention to the subject, and fhall have an op^ portunity of again addressing the Court in reply to the Crown officer?, X shall trouble it very shortly in opening. The first objection 1 shall i 175 have the honour to submit, is thiU the offence charged in the imliclmcnt, (if committed at all,) was not conmilUd in the Indian Terrilory^ as oi- kged; but in his Mujalifs province of Upper Canada. ra -:' r >' Chief Justice SewelL— If I underitaiid you correctly, it is a gtogra- fhical objection y(.u malve. You argue that this spot, " en haut des " Dalles," is not in the Indian Territory, but in the Province of Upper Canada. 3Ir. Sluart.—TUnt is my proposition, and in support of it, I proceed to remark, that th^ first enactment relative to the management of this portion of His Majesty's dominions tooli place in 176S. It is known to all of us, that the conquest of this portion of North America, by the British arms, took place in 17r)9 and 1760, but, from that period to 1763, when the whole of the country called Canat/a, was ceded to the English, who have retained posFcssion ever since, nothing was done to provide a government for, or to regulate, this conquered country. In that year, (1763,) a province called Quebec was created by procla- mation ; but the affairs of this territory, notwithstanding the procla- niation.; remained in a very unsettled state till the year 1783. Ac- cording to the most respectable historians, we contend, that the portion of country thus ceded, was exceedingly extensive, going, agreeably to some writers, us far as the river Ohio. The pretensions of the French, as we gather from history, carried them into countries distant, remote, and in fact unconnected altogether with the province created in 1763. The people of Montreal and Quebec, we shall shew, had long traded in- to those wilds, wliich are now so fancifully-called the Iludson^s Bay ter- ritory, and from which, after an uninterrupted enjoyment of traffic for ages by the French traders, it is now sought to exclude enterprise and competition. It must be apparent to every one, that after the con- quest, this immense tract of country required a government adapted to the change which had taken place in its circumstances, by becoming a province of another nation. Its remote situation from the parent-state, rendered it impossible, as well as unadvisable, to legislate hastily for its necessities, but the parliament proceeded to provide what it stood most in need of. Accordingly, by the 14th of the King, the province of Quebec was enlarged, and here let me remark, that a great deal of tiie misapprehension which exists on the subject, arises from confounding th<> province of Quebec, as thus erected and enlarged, with what, under the French regime, was denominated Cavada. — Adverting to the 14th t)f the King; the act of 1774 ; it will be seen that the country, erected and enlarged thereby into the province of Q,ucbcc, was not commenRurat* to the country know by the name of Caiiadn, as u French colony, and recognized as ?nch by tho French and Uriti,'.!'. gov^'tiuuent^. The ol.j ■■ 1, r. '1 t I i • W 'i F' ' ' ' !l :.i ■ '■ I' ■ i| .'-HI f-.'.lv.l :i« * }i ■y; ilG ir< .1 It f 1 I.|i ' 'I' Ps ^:'l •f this legislative provision was, /o provide a Icmporari/ gorernmcnl /Dr* that portion of hit Majesty^s province, whose netcssilies required it. As settlements pushed themselves into the country now called Upper C;l- nada, as civilization extended its stride, it became necessary to adopt ti government for the whole, and the interval from 1774 to 1791, affordeU time, to form and mature a suitable government for the immense terri- tory known as Old Canada. Chief Justice Sevcell. — You are making a small tnistukc, it was not to provide a government for Old Canada that the act of 1791 provided, but for the new provinces formed out of the old province of Quebec. Mr. Stuart. — I know the act of 1791 mentions the province o[ Que- bec, and it speaks also of Canada. The proclamation issued in consc- quence of this act, I contend, must be construed liberally. It must b& looked as, not as a deed of property, in which, only a minute survey can be taken ; we must not look at it like lawyers in our study ; we must not contemplate it as the act of an attorney, surrounded by his musty papers and parchments i but we must view it as the act of great and enlightened statesmen, legislating for the population of an immen.se and distant territory, with whose wants they were acquainted, and whose affections they were desirous of securing by n liberal and magna- nimous policy. But, even looking into this proclamation, strictly and minutely, we shall find this country, where it is alleged the offence was committed, to be strictly and minutely the province of Upper Canada. The act of 1791, in providing for the more suitable government of tlVa province, created by the former one of 1774, divided it into two parts, and, we think, even in a strict construction of the provisions ol Ihat ttatute, and the proclamation issued in consequence of it, that, if tliis offence has been committed at all, it has been committed in the province of Upper Canada, and, consequently beyond the jurisdiction of this Court. But let us look into this act and proclamation, with a broad, liberal, and enlarged disposition, and we arrive at the conclusion, that, this country must form a part of the province of Upper Canada. I am well aware, that in the preamble to this act, the province of Quebec is adverted to, but preambles of acts of parliament are never looked at as explaining the design of the legislature, except doubt arises in the con- struction of the enacting clauses. It is almost superfluous to remark that, for ascertaining the spirit of an act of parliament, we refer to its tnacting clauses ; if they are ctear, there is no necessity for referring to the preamble, which is but an introduction, a sort of preface, setting forth the necessity for legislative provision on the subject of the act, but. not making the provision. On the other hand, I freely admit, if tlie word? of tlie act arc unrntain, if dlffen-nt constructions may be po* 177 « on the enacting ficcllons, then we ouglit to go baick to the preamble tat the intention of the legislature, but that should never be done except doubt and uncertainty prevail in the body of the act. Adopting this sound principle, let »s take up the act we are at this itaoment consi- dering, and vvc shall find it so clear that misunderstanding can not exiiit for a moment. In the proclamation issued in consequence of the Slst of tlif? King, cap. 31, we find the boundaries' of his Majesty's province of lJpi)cr Canada, set forth after a slio'rt introduction,^ stating that his Ma- jesty had thought fit, by and with the advice of his privy council, by vtti onl.sr of council, to divide liis province of (Quebec into two distinct pro- vinces, to be called the province of tipper Canada, and the province o^ Lower Caniula. 3Tr. Sluarl read the boundaries and'pi'oceeded. Now, what was " the vlmosl extent oftfie country commonly tailed or *^knoun by the name of Canada,'*^ we all know. It is that territory cosvjuered by 13riti':h ar.ns in 1759, and ceded finally in 1763, to the British Crown. Canada recognized as siuh in treaties of peace, .ind 4 other most important documents entered into between France and En- gland. That is Canada, the «7t(//c of which, afl«r the act of the Slst of the king, by the advice of his privy council, his Majesty declared it was his royal will and pleasure, should form the province of Ujiper Ca- nada^ with the exception of the comparatively small part situated to tlie north and east of those boundaries which constitutes the province of Lower C'lnada. The provinco of Quebec was quit« another thing, and couM not have been meant as di:;ignating the boundaries of Upper Ca- milla. If that hiul been intended to form the limits of the new province, llie course was simple and easy, it was to have said the utmost extent of country commonly known as his MajcstyK^ province of Quebec ; but that is not the case, the boon was not so circimiscribcd. Let us now, for a moment, examine the fact according to rigorous municipal principles, and W8 fhall, T think, arrive at a similar result. His Majesty's pp* vince oiQntbvc was always .'I ■. h.(i m WW ij:' 1 (78 511 cliule " all tlie lerritory to the westward and southifard of the said Ikic'*- (the line of its boundarie>) " to the utmost extent of the coun^lry com- *'• monly called or known by the name of Canada." I am fully aware tliat I may be told that in the preamble of this act and of the proclama- tion the term, *' His Majesty's province of Cluebec'' is made use of; it is almost unnecessary for me again to remark that the preambles of act» of parliament are, in general, loosely and vaguely drawn up, and ought to form no criterion by which to estimate the objects contemplated by the acts themselves. That this is the case is known to every lawyer and every legislator. It is to the enacting clauses of any statute that ^ve piust refer to ascertain with accuracy the provisions of the act. Adopt* ing this certain rule for our guide, here we have a clear manifestation of the intention of parliament in the act of 1791; it was to create im\ provinces of Canada, and, in defining the limits of the Upper, it declares that it shall, }n a certain direction, include " the utmost extent of coun- try commonly called" What? the province of Quebec f No I It shall include •' the utmost extent of country commonly called and known by " the name of Cmicfia." The utmost extent of that country, which I have before remarked, being the conquest of British valour in 17.19, by force of arms, was finally ceded to Britain by the treaty of Paris of 1763. That immense territory, which has never by any treaty been since surrendered, which as it is, and has from the time of its discovery^ as well as its cession, been known as Canadk, must be the territory which was intended by this municipal enactment to form the province of Upper Canada. That being the case (and I think it is the only con- struction, e\*en in a minute point of view, that can with propriety be given to tlie statute,) wc find that the Dalles are strictly witliin the province of Upper Canada, consequently out of the jurisdiction of thii Court, and the offence is not cognizable under the act upon which the hidictment is founded. I come now to the more broad and liberal interpretation of the act, and I shall, as I apprehend, have no difficulty in shewing, that we cannot ^■i^e at any other conoluj-ion. The 14th of the King, was evidently intended to provide a temporary government for that part of the newly acquired territory, which stood most in need of it. It wlfs passed at a season of great difBculty, when anxiety and alarm pervaded all classes yf society in England, relative to the issue of the disputes between the parent state and those of the colonies which she has since acknowledged as the United States of America. At a period when the intercourse be- tween the province and the mother-country was so limited, that it could burdly be said to belong to it, such was the moment in which the act fTpcling the prov\pce of Quebec was passed ; %a act whose temporary 179 «atare may be clearly deduced upon a single reference thereto. Tliia province was to subsist only, by the act of 1774, till the King should ^ee fit to alter its limits. In 1791, the situation of affairs, relative to this portion of the British possessions, was widely different, and the British Parliament proceeded to form a government for a people, whose loyalty during a contest ^\-hich had severed such numerous colonies from the dominion of Britain, had well entitled them to the distinguished and distinguishing privileges secured to them by the munificent act of 1791. Refer to the acts of 1774, and of 1791, and, surveying the dilTerertce, it it possible for a moment to imagine, that the government of 1791, in- tended only to legislate for a port of Canada? Is it, I would ask, rcu- flonahle to consider tliat the minister of a great nation, such as England, contemplating an extensive and valuable, though distant territory, be- longing alike»by conquest and affection to the moth^-country, and en- titled to protection in time of war from its superior strength, in time qf peace from its extensive and unequalled trade, entitled to receive, and have secured to it, tlie due administration of justice, and the unreetfict- ed enjoyment of religious freedom. Is it, I ask, reasonable to suppose, tbat the great men ivho presided over the councils of Britain intended at tbat period to propose a government for a part of Canada ? To sup- pose so, is to suppose they were sleeping at their post. Can it, I ask, be imagined that a minister could be found so regardless of his duty, so Ignorant of the necessities, so insensible to the loyalty, of this country, or so negligent to the interests of Ills master, as in 1791, to propose a government to a part of Canada ? We cannot supppse it ; they have n6fc been so negligent. They have given us a government, and a constitution, superior to any on earth, excepting their own, after which it was mo- delled. A government, suited to our necessities, and gained by our un- shaken and persevering loyalty, when revolution tore our sister provin- tes from their allegiance, and strove to associate us in the revolt. I >sk again, is it for a moment to be bdieved, that such magnanimity would be tarniithed by these advantages being confined to only a part of a people of the same blood, equally brave, loyal and grateful, and equal- ly standing in need of, and equally entitled to all these privileges? If any should be found disposed to support, by argument, a contrary opi- nion, they ought to be confident, before they make so heavy a/charge, that they can substantiate it beyond the power of contradiction. But there is no occasion to apprehend such an argument, for the proclama- tion is clear as the noon-day sun upon the subject. It tells us that th« theact of 1791, has provided a liberal, an equitable, and a permanent government for the brave, the loyal, and grateful, population o^^n ex- tensive ttu-Gt of country, within certain latitudes atid lougitudes, " in*- ^1'. !,-;i Mi ■ ; i': ■ ■■ri; lUO liiln'ii"i ^f' pi ♦• ttliwling all the ttirUory to the vvchtwnrtl uiul soutUtviyd of a Itim **■ drawn due north from the hniul uf tiic Lake leiniscuiuing, iinti! it *' strikes the boundary of Jlud oil's flay, to the utmo.«t extent of tlic *' country commonly called or known by the uannc^f Canada." AVhat that country consisted in, I ijave had the honour of Mibmittiiif!; to tho Court, in tho eaily part of the aryninent. In concliihjon, 1 contjud, on the broad and liberal construction of the act of 1791, thi^t by t'auada, must by meant CamJa as known to Hie French^ from whom it was tak en, and who, in ceding this part of North America to the IJrili<
  • \ w liiih was addeij to JS'tyfoimd- " land; of Lak* Clbamplain, and the whole tract of land to the saulli of " ihcfui'ly-ffih dci^ree of latitude, with whicli New-York was ongment- "cd; oi the immense lerrilori/ io the westward of Fori Golelfe, and of " Loke A'?/;V4.9j?ii, which wiw left without a government; and the re- " maindcr, under the designation of ihe province, ofQupbeCy wa*; placed " under one governor." The def'i;r»|)tion which this respectable histori- an here gives of the territory thus dismembered gives a correct idea of llie country known as Canada, This new system, he gays, gave a part of Canada to Newfoundlanil. New-York was encreascd by another pait, namely, the tract to the southward to tlic forty-lifth degree of Ifl- tiliidc. " The ijiimense territory to the west of Fort Golette and of " Lake Nipissim, was left without ani/ government :" and (as my learn- e^l broLhcr. Sir. Stuart, has well maintained,) it is this immense territo- ry wliich the proclaraation of the year 1T91, gave to Upper Canada, as Icing a part of the country, *' called or known by the name of Canada.'* I have the honour to sulmjit that, looking at the words of the proclama- lion of 1791, and comparing them with tliis description of the jiblti Jiuynal of the tei-ritory left idlhout any government, we shall find it to be the country which, by this proclamation it was proposed to make a part of Upper Canada, at the time when it was declared that the line should be *' drawn from the head of the laj^e Temiacamini:; due north «n- " til it strikes the boundary line of U 'InoiisBay^* (and moreover,) " including ull the territory to the westv-, \rA and southward of the said " liae to the utmost extent of the country commonly called or known " by the name of Canada." 1'his territory was then known by the. I'.aine of Canada, and it is situated to the ucslu%rd of that line, and thorefore it proves to be a part of Upper Canada. Again, I bfg (he at- tention of the Court to the work of Mr. Pinkcrton, a well known Eng- lish geographer. This distinguished author, speaking of the extent of Canada, jjives very large bounds to it. In vol. 5, page Co4, he says, f this country" (Canada,) " is computed to extend from the gulf of Si. " Laurence and isle of AnlicosU in the east, to the lake of Winnipic in " the west, or from lojjgitndo 64« to 9T" west from London ; thirty three f ' degrees, which, in that latitu«le, may be ubout twelve himdiod geogra- ■^m IC'2 II'. '9 hi 'A S'fc" I ** phical miles. The breudth from tlie hike of Erie in the south, ur latW " tude ^3", may extend to latitude 49", or tlirce hundred and sixty *^ geographical miles, but the medial breath is not above two hundred.'* fo far he speaks of the ahsoUiie jfcogruphicat extent of Canada, the sub- ffquent observaUon, which he makes relative to the ori'^inal population of the country, strongly supports the argument which we have the ho- nour to submit to the Court, viz : that this country, described by the jibbe Raynal, as " the immense territory left without any government,^* \t the very country intended by the proclamation of 179t, to rcedve a go- vernment, by becoming a part of Upper Cungda. " The original popv. " /o/ton," (says Mr. Pinkrrton,) " cunsijited of several Snvage triltes, " whose names and manners may be traced in the early French acrnuiUs, *' which may also be consulted for the progre?sive discovery, the fir.«t ♦' settlement being at Quebec in 16O0.— During a century and a half that " the French possessed Canada, they maUe many discoveries towards the ♦' west, and Lahontan, in the end of the seventeenth century, has given u " tolerable account of some lakes beyond that called Superior, and of ** the River Missouri. Quebec being conquered by Wolfe in 175I\ ♦' Canada was ceded to Great Britain hy the treaty of Paris in ITG-S.** I confidently submit that this western territory which had been dis>- covered by the French, and is described by Lahontan and other writRw under the name oi Canada, became, by the proclamation of 1791, a part of Upper Canada, and consequently does not form a part of the Indian territory, nor is it ivithin the Jurisdiction of this Court. The ^bbe Bay- fial and Mr. Pinkcrton agree in their description of the western boundary ♦* of the country commonly called or known by the name of C«>uirfa," and for its southern limits let us again again refer to the Jbbe Baynufs •I'ork. This writer, in the same volume of his History of the Indies, treating of the extent, soil, |ind climaie of Louysiana, says (p. 111.) " Louysiana is a vast country, bounded on the south by the sea, on th« *' east by Florida and Carolina, on the west by !J^ew Mexico, and on •' the north by Canada, and, by unknown lands, which may extend to " Ifurfson'i Bay. It is not possible to fix its length with precision, but *' its medium bi'eadth is two hundred leagues.'* Here we see that the northern limit of Louysiana is Canada and unknown lands which may extend to Iludsonh Bay. With the proclamation of 1791 before our eyes, which tells us that the boundaries of Upper Canada include the whole of the country to the we^t and south known under the name of Canada, to the utmost extent of that country, ii is impossible to say but that country wliich ^bounds Louysiana to the northward, according the Abbe Haynal, must at this moment form, in conformity with that proclamation, a part of Upper Canada^ becnulse the country known a| 185 Cutiada fixlcnJ.s lo the xnutk as fur ns Louy^iana, and to the ut$l as faf no the niiiety-ficvcnth degree of longitude. There remains now for ui ioconwder the nurtlicrn limits of Canada, and here we have not the same gcrtainty. In the maps of New France it is true that the wiiole of tlw Kivcr Winiuijic is included in it, and the noilhcru boundary line is A-awn in conformity w ith the interpretation of the limits of Canada which we have submitted to the Court. That this interpretation is a •orrcct one, and that it in cfrect agrees witli the li;nits oiCanadu, as the/ were know n to the French government, will be evident, if the atten- tion of the Court is given to what wc look upon as very strong autho- rity. It is an act of the Vvke of Vcntudonr, dated in 1625, and will bo foMnd in the " Edicts and Ordinmcef," vol. 2. page'ii, under the title of" Commission of ('ommandant in New Franco of the l.'Jth February, " 1625, by his grace the Duke ofVintadour, who was viceroy of the * country, in fa^rour of the Skur dt CJiamplainJ'* This instrument be- gins by reciting other t)atent$ of commission already obtained, and pro- weds to declare, in the most precise manner, the view taken by the go- vernment of France of the extent of this part of their possessions. An all the territory which tlie French knew as being called by the name of Canada^ to the south and west of the line so frequently mentioned in the course of my speech, is ordered, by the King's proclamation of 1791, to make part of the province of Upper Canada, let us look at thi^ act, and wc slwll pwrceivc from it, that the most extended powers were given to the SUur de Cliajujdain, powers which did not at the time awa- keu any doubts as to the rltrht which France had to grant tbem, iioi any Unpediment to their exercise, on the part of any other nation. Mr. Vallitre read the commission :} : ■ fi h ■ ■■. I. ■.a . 4 1« i iti ■l-J H' i|i ' ■ . » lit ,' rA.' '^ ■S >fi' Tlftdoniand th«^ir priiu:P\ nml, on tficlr being b •ler.uilt, to wig's of.i'u war against tlieiii ; in fine, ixtwers niv grantnl iiy tills eomnil.v-ion \\ liicl* roulil not luive been gninli .. unli'Sn liy n (.'/ivrniMciit wljicli, l)y tin: ifny of nations wan entitled to <^raiil llu)n. Tliose powi-rs CT^t.-ii'l ovpi-hII tlio Innils and rivers wbicli ilircliar^e tiioniMlvos inlu thr' Jlivi r >'.'. l./ui' fence. It is trno, pciliai^, ibiit tlio Ilivtir \Viniii|ii(! «i()L> luit tW>Ji;ir';e Uw.'if into tliiit river, but, let ns recollect, tlmt at tliu tlati- of tliisom. mission, tbu counlry not I'ciii^ Ufll known, the roursc of //.? rln rs unH Tieccusarily Iiav*) been less Known, alid tlmt, to arrive at C'hiiiu un»l ilip East Indies byway oHhinctditf yon mnst come to the Pacific Ocuaii. iMso, letns remember, tlnit t!ic French alwuys reganled (heir discovn- ries to ihc ipcsI as making part of Canada, and according to old miipK, that river (IViyinipic) is sitnnted williin the country known to the Froiich as Canada. After this proof of what were, at the time, considerod n» the territories of Frunce, it is only ncccjMiry to entpiirc, wiietlior possession thereof, wnii uciunllii held by tlmt kingdom. 'Iho f-jjeciesof pof'sesf^ion which the law of nations udniits as a proof of actual soverc:i':;ii- ty, will ecpjally appear to hnvc been maintained. W'c see that, by tlii< •onimission, power is given to be erected and built such forts and for- tresses, as may be wanting and necessary to him, the Sintr dc. Chaiiqilitln; liow, forts and fortresses ivere erected, and, to this day, there are rf- mains of French forls in tliat co;nitry, which iucontestibly prove actual possession. Upon thcyo i^roinuls we aseume that the limits of Ca- nadato the north and to the ires/ have ntnr been well known ; ncilli(r at the time of the ac.hial possn^ion of tlsc eonnlry by Ihe I'l'ci'.r'', nor since its conquest by the English. In support of this posilitm, (which is especially true as regards the norlhtrn limits,) 1 submit thai Charlevoix, the Abit liaijnal, 3Ir. Pinkcrton, and all authors, agree in representing that the boundaries of Canada Under the French re^iiur. were not positively fixed or known. As an authority for saying that they are not IJxed even at tl:j present time, I produce the topography of 3Ir, lioudietle, the surveyor-general of this province, who has Ik- •towed great attention to every thing that is interesting on this subject; and I flatter myself that, from his official situation, his work must be ' esteemed very strong authority. Mr. Bonchetle, speaking of Upper Ca- nada, gays, page 590 of liis topography, " On the west and norlh-ivest *' no limits have been assigned to it." I pray the particular attention of the Court to the expression " no limits have been assigned to it, tlicre- " fofc it may be supposed to extend over the vast region that spreads ** towards the Pacific and tlic Northern Oceans. The separation bctv.ccn '* it and the United Stales is so vagiic and ill-dcfmed, and the prolii'c " scmrcc of 50 ntany disa^rrements between tlie two powers, that it bus V5 " Jong calietl for tlic revision which is now about > , '^< « * Mr. Stuart.^I confess I look jn vain for those grounds of confidence on which my learned friends rely. If supporting opinions by confident assertions entitles them to the result they anticipate, they have cer- tainly gone a good way towards obtaining it, but I look in vain for any filing that cau be called ai'guipeut, upon the question that is now befors I I f i ! i f 5 " , !(i 5 :< 11 i'i< I t 1 ■"' I t f H ' V i t h i I ',4 > >\ II I! llin imM ' ' I ■ fr'' ft : I 190 the Court, in the observations that have been submitted by the ofBc^ of'the Crown. - Iftbere was any thing that demanded attention, it was the remark of my learned Iriend, the Solicitor-General^ on the act of the ■4Sd of the king; but, if my learned friend had referred to the chart, he would perceive that nine tenths of the whole Indian territories, according io his description of them, lie beyond the boundary which ue claim as that given to Upper Canada by the act of 1T61. If my learned friend traced the parallel of 52", he would perceive that nearly the whole of the North-West Company^s stations, and the whole of those of the Hud- fon's Bay Company, are to the north of tliat line. Then surely it is obvious that this was not an act without an object. It was an act to extend the jurisdiction of the provincial Courts to the trial and punish- ment of offences committed in the Indian territories, and they are to be found in the immense and almost boundless wilderness to the north and toest of the province of Upper Canada, as established by the act of 1791. The act of the 14th of the king was obviously ttmporary, the proclama- tion of 1791, defining the boundaries of the two provinces, was founded upon an act of a very different description. The former was merely a fwiporary^ whilst this was a permanent act. Mr, Justice Bowen. — From what part of the act of 1774, do yoa conclude that it was only tenvporary. I see no part of it that warrants such a conclusion, except with reference to the last clause. " Mr. Stuart. — The words there made us of are general, and, as I con- ceive, must be ui^derstood to refer to the whole of the act. I mean, however, independently to contend that the time at which that act wa^ passed, and the situation of England with reference to her American colonies, concur to shew that this act was merely temporary. But it is needless to refer to the act of 1774, as it does not bear upon the case, being fompletely done away by the broad and liberal proclamation of 1791. I am surprised that the Crown officers should treat so lightly his Ma«- jesty's proclamation, it is certainly not the quarter from which we fihould expect it. How was the province of Q,uebec created ? By pro- clamation ; and surely my learned friends will allow as much weight to one of his Majesty's proclamations as another. They will not deny the same power to his Majesty in 1791 which he exercised in 1763. If proelamations are such weak acts, what are we to think of the procla- mation that has been put in evidence on th» present trial, and has been resorted to upon all occasions as a justification for all the apparent ag- gressions which have marked the progress of these unfortunate disputes? But I differ in opinion with my learned friends on that point; if, in 1763, his Majesty could create a province by proclamttion, he, in 1791, ••ould divide and enlarge a province in the same way. This he has been idi pleaded to do, and all we bave to do with this expression of the roytf nill and pleasure is, to adopt it, as the rule by which we are to be go*- verned. In considering and deciding the question of jurisdiction nov before the Court, we contend that, looking at this proclamation, it is impossible to say that this offence was committed within the jurisdiction of this Court, If committed at all, it was perpetrated at the Defies, which form a part of his Majesty's province of Upper Canada, as create* by his royal proclamation ; ' 1791. Jt being now past six o^clock, the Court vuts adjourned till Friday morning at eight o'clock, A.M. Friday, ^9th May, 181^. PEESEi^T AS BEFORE. The Cvurt having assembled, tint Juty were called our and being o^f^ ftesent* Cliie/ Justice SewtU.—Thfi Court are most distinctly of opinion, oa referring both to the act of 1791 and that of 1774, that the argument held on the defence mu£t fail. What was the object of these acts? A- mongst others, that of 1774 was to enlarge the province of Quebec, which had been created in 1763. That of 1791 was to separate or divide the province of Quebec into two provinces, to be denominated Upper and Lower Canada, and make each respectively independent of the other, by giving a legislature to each respectively, retaining within the tw» provinces the sanoe extent of country, the same space, as the province ef Quebec contained. What is the act of 1791 ? What is its object, its avowed object? To repeal certain parts of the act of 1774 ; and virhat is the part repealed ? It is that part of it, which gives authority to th« council of tfie province of Qttebec, and what is the reason assigned for so doing? Why, that his Majesty had signified it to be his royal will and pleasure to divide his province of Quebec. To assert that he intended by this, that the limits of the province sliould be extended by the separation, Appears to me repugnant to the plainest principles of common sense, &ni1, therefore! I cannot absent to it. The sijjiort history of the aftoT ^X 1 !■ .t. Pi ml I' i nil -'^ m ' 1 1 If: :;1 1§Z MA ^■H M'm- i-'' ■<: •■' I ItSi is briefly this t—Tlie King signifies to parliament ^is royal intention of dividing his province of Quebec, ant! he calls on the legislature to 'lirc^vide for this alteration by granting an act adapted to the change. ^he legislature pass an act providing for the due government of the iw'o provinces, and under the authority of this act, and the royal proclama- tioh, the province of Quebec was accordingly divided. The royal pro' clamation was an act of sovereign authority, by which his Majesty, by and with the consent of his privy council, declared that should be the line 0^ wparaKw between Upper and Lou'cr Canada, and how much of the former province of Quebec should belong to the one, and how much to the other. The object of the act, and the object of the royal proclama- tion, are so clearly expressed, that we cannot, for a moment, doubt ' upon the subjeet. The act says, *' Hw Majesty having been pleased to •' signify his royal will and pleasure to separate and divide the province " o{ Quebec.** And what j^ays the proclamation ? Why,- the very same words. To divide the province of Quebec, not to add to it, any more than to take away from it. Therefore, Upper Canada could include only that part of the province so divided, which was not contained in Lower Canada^ but it could not extend beyond those limits which constituted the province of Que&ec, otherwise it would certainly have been an act to enlarge rather than an act to divide. In delivering this opinion, I am speaking our unanimous sentiment, for we have consulted our bro* ther PerrauU upon the subject, and he clearly concurs with us. Ac. cording to our understanding of the ar4, and the royal proclamation, we are bound to say, that the argument of the gentlemen concerned for the k*risoner, though presented with great ability and ingenuity, must fail, because the western boundary of the province of Upper Canada, is, " o *• line drawn due north from the confluence of the Ohto and Mississippi ri- - *' vers tilt it strikes the boundary territory line of the Htidson*s Bay!^ The question olfact will remain with the Jury. It is they who are to lay, whether this place, the Vallet, is, or is not, to the west of th» line whicn we now declare to be the western boundary of his Majesty's • frotince of Upper Canada. If they are of opinion that it is within, or to the eastf of this western line, then it is in the province of Upper Ca- nada, and not within ottr jurisdiction ; but, if they are of opinion that it is to the ipest of this line, then, I am giving you our unanimous opi* nion, when I declare, that the Dalles are in the Indian Territory, ani not within the limits of the province of Upper or Lower Canada, but clearly within the jurisdiction of this Court, by the act of the 4Sd of the King, cap. 138, which extends our power to '' the trial and punishment of per* iotts " guilty of offbnces within certain parts of North America." ' i^llARGE TO THE JUR\% ,■.>?■■:• ' ,., ,,,ii ,i( ; , .,. , ■' i.j^li "/t. ■J.'' ' "' ' •)" BY THE nONbURAI?LE CHIEF JUSTICE SEWELL. HvniUmcn of the Jiiry^ The Prisoner at the bar, is acciiscd of having murdered Qwen Keveny in the Indian Terrilories. The substance of this long indictment is this, tliat Charles De Reirihard, the Prisoner, and one Mainville, (who is not here,) killed him with a gun, or a sicord, or both, and that the bthers, M^Leltan, Grant, Cadotte, and Desmarais, were accomplices, that is to say, that they did, before or at the time of the murder, aid in or advise the s&me, but at present it is only with De Reinhard that you have to do. The indictment comprehends several counts, which is usu- al, because the officers of the Crown do not always know to what part of the case they apply, or what proof they may be able to produce. — The charge is containetT, generally, in eight counts, of which I will give you an abstract. The charge in the first count is, that De Reinhard killed Owen Keveny, with a sword, and that the others were present, that is to say, actually assisting in the murder, or ready to have assist- ed, if it had been necessary. By the second, he is accused of having killed him with a gun, instead of a sword, and the others, of having Dcen present as in the first count. By the third, he is accused of having killed him, not with a gun nor with a sword alone, but with both togdh' er. The fourth count says, that Mainville killed him with a gun, the others being present, aiding and assisting him. The Jlflh count again snys, that De Reinhard killed him with a sword, and that M^Lellan, Grant, Cadotte, and Desmarais, were accomplices befojfie and after the fact. The sixth count accuses him of having killed Keveny with a gun, but, like the last, does not say, that 3PLelfan, Grant, Cadotte, and Des^ marais, were present, but that they previously counselled the murder, and that, after it was committed, they received and assisted the Prisoner to escape. The seventh count again says, that De Reinhard killed him both with a suord and grm, and that these same four persons were ac- f'Omplicfes befo;e and al'ler the fact. The eighth, and last count, accused I ;. I' 1 1 ■ i '.; ;v ■',: ^'.'^m I lU 194 .i; ^> , ii' 't<- '^y'i >>j MainvitU of having killed him with a gun, and rays that De Reinhard \vbls present, and assisting to kill hipi, and that M^Ltllan^ Qrant^ Ca- dotle, and Desmarais, were not present when the murder was commit* ted, but that they were accessaries before and after tbo fact. These, gentlemen, are all the counts of this indictment. To this indictmcni the Prisoner has pleaded that he is in nowise guilty. The officers of the Crown say, that he is guilty. It is your duty, to declare, upon your oaths, whether the Prisoner is guilty or not. Upon this question, there are three points that require, and particularly deserve, your attention. The first point is, to know whether Keveny was really killed. The second is, to know whether he was killed by the hands of De Heinhard or of Mainville, and, if you find that he was killed by Main- vitte^ to know whether De Reinhard was present^ assisting him to murder him ; and it is necessary I should inform you, as the law mnkes no dis< tinction, that in such case, both are equally guilty. It is not necessary that both shall have actually helped each other to kill him, if they weic present, and abetting, the one and the other, are equally guilty. The third point which you must examine is this. If you find that the crime lias been committed, it is for you to say, whether it has been explained by any circumstance that may diminish the crime, and reduce it to any degree of homicide inferior to murder. Upon this point it is my duty to tell you, that if you find that he was killed in the manner laid in the indictment, and by the Prisoner, there is no doubt but the Priso- ner is guilty of murder, because the circumstances of his case, according to the evidence which you have heard, would not leave you the power of diminishing the crime, as there does not appear any excuse or any necessity for having committed it. You have, therefore, two questioni principally to consider, first, whether Keveny is really dead, and second- ly, whether he was killed by the Pr^oner, or whether he was killed by Mainville, with the knowledge of the Prisoner, he being present aiding and assisting. Before reciting the evidence, it will he necessary to take notice of the authority, by which the Court, possesses the right of deciding on the Prisoner's case. By the statute of 1803, power was given to tie Court of Upper fanada, and to the Cour/» of Lower Canada, to try, and to punish, those persons who had committed crimes in the Indian Terri- tories, and the statute clearly explains what was meant by the Indian Territories.—lThe Chief Justice read the preamble and first clause of the act.] — ^It is in consequence absolutely necessary, to know, whether the place where the death occurred, and where the murder was committed, is without " the limits of Upper or Lower Canada, or of any civil gc- *' vcrnmcnt of the United States of Jmerica,^^ for if it w without those 195 limits we liavo the power of trying the Prisoner, and on tlie contrary, if it II not iOy then we have not the right of trying him. It is a question therefore for you to determine, where Keveny met his death ? and it was not in the province of Lower Canada certainly. Tliere are, however, two other quarters which require your consideration. First, Upper Ca- nada. The western boundary of Upper Canada is a line drawn due north from the junction of the rivers Ohio and Mississippi, in the latitude of 37" 10' north, and 80** 50' west longitude.— I am bound to tell you that it is the Court who are to decide upon the law, and you who are to judge of the facts, and, according to law, we heard the arguments of counsel on the subject yesterday, and to day, we have decided that the western limit of Upper Canada is the line, which I have mentioned ; if then the Dalles are to the east of that line, they are in the province of Upper Canada, and consequently not within our jurisdiction. Let ui DOW look at the evidence. The first witness on the part of the Crown is Mr. Sax. — [The evi' denee of Mr. Sax, vide pages 7 and 8, was read.^ — It is, therefore, ma- Bifest that a spot which is in the longitude of 94** 6' west, must be much to the westward of the boundary of Upper Canada. There is another witness, Mr. Joseph Bouchette, who says the same thlng.-^ [Mr. Bouchette's evidence, page 9, read,] — You see that ilfr. Bouchette and Mr. Sax entirely agree. There was some other evidence to this point, but perhaps you have no doubt of the Dalles being to the west' ward of the line of which these gentlemen spoke. — Another matter for your consideration is, whether the Dalles are to the noriAof the line of reparation between the United States, and the province of Upper Cana- da, It is of importance to ascertain this, l>ecau6e if the spot is to the north of that line, it is in truth in the Indian Territory, and if it is to the south of that line, it is in the United States, and consequently not within our jurisdiction. On this point the evidence is equally as strong as on the other. Mr. Bouchette's evidence is most distinct ; but I wit^h now to refer to the evidence of Mr. Coltman. — [The Chief Justice read Mr. Collman^s evidence, vide pages 10 and 11.] — Mr. Oale who was ex* amined afterwards, confirms Mr. Coltman in every particular. TLis is all the evidence with respect to our jurisdiction, and to the locality of the Dalles, and if it proves that the Dalles lie to the west of the bounda< ry of Ujtper Canada, and to the north of that of the United States,— it proves, consequently, that they are in the country designated in the act Qii^03,M Indian Territories. Now let us look at the evidence as to the facts of the case. It is very long, but the Court does not complain of the Crown, nor of the counsel f«r the Prisoner, both have done their duty, and have done it well. But -:M m \ ^ *! % I ■ii i,:t t.V- 1 96 »t •» ' :. <*^ ' it- I'-, i '; .;t^ Ir J: Iv r;'^ !i ' :.j y^f' ? / wUliotigh tbo evidence ii long, very long, the fiots of the cm* i|re but few. The Crown officers rest their case qpon the various confeseions of the Prisoner, confirmed b/ several circumstances, whicl*, it is snid, prove that it was his intention to kill the deceased, and by fads occur- ring in the execution of that intention ; his public d«claratiou that bq hud killed him, and l)ts taeil confession that ha bud done it, proved by bi| filcnce, at the time wlien Mainville related the mode in wliich Kevtny had been killed ; his declaration wlien the things were divided, that the right to have the best belonged to him, because it was he who had ki^td hinij and not only tbcfi^ worde, but that at the same time, he made the division, keeping the best for himself. — This is the cfise on the part of the Crown. , ,-.; ) ,. ■• ■ , f" » -. • "\ *; , i'.- •) On the part of the Prisoner it is said, " I have a defence to make, *^ on important grounds ; and it is not an ordinary defence, although it " turns on the evidence. My defence is chiefly, that the situation of thi^ ** country was so extraordinary, that my supposed confi^ssion cannot be " noticed. The country ^bove was in a state of warfare, an^i my con* (' fessions were the effects of terror, apd extorted by the circumstances " and the occurrences by which I was surrounded. These confessions " do not relate to real /ac/.t, but were made under the pressure of cir« " cumstances, in order to put my life in'safety.'^ He has also attacked the credibility of the witnesses on the part of the Crown, particularly the testimony of Captain D^Orsonnens, of Faille^ and of La Pointe. The ' officers of the Crown say, tiiat the confessions of the Prisoner are con- firmed by these men, Faille and La Point e^ and the Prisoner says, that be has destroyed their testimony, by shewing to the Court that tbey contradicted tbemscivee. It is for you, gentlemen, to judge, and not for us.— My learned brother, Mr. Justice Bouen, will read to you the evidence, and you \vill give that attention to it which it deserves, iu order that you may thoroughly i^nderstand it, and that your minds may be satisfied whether the officers of thp Crowif or the Prisoner have esta- blished their affirmation. After you have heard the evidence, I propose to myself to advert to some particulars in the evidence, which seem to me to require notice for your correct judgment, both with regard to tb^ Prisoner, and with regard to the Crown. : , , •, .!wi>r, • r ■ The evidence mas then read throughout by Mr. Justice Bowen. Chief Justice Sewell. — Before I Riake my observations upon the evidence you b<^ve again heard, it is my duty to state that you must not, in the least degree, regulate your opinions by what I may say to you, but that you must bestow your entire attention upon the question to be decided, wi^ether the Prisoner is guilty or not. I remind you again, that it in 197 pou who uio to judge of tbo credibiliiy of tlie wUneiioi, anil I miut llkftr wise make the further remark, that it l» you who ore to judge of the lU tuatlon of the country, of the circuinitfnces that relate to the confu' shns, as well as generally of the degree qf credit to be given to the whoU ol the evidence. The foundalion of %\w proof produced by the otficorft of the Crown is the confession of the PrJHoncr, confirmed by other wit- nesses, that he killed ^Tcieny. This ponfirwalion, the officers of th» Crown say, will be found in the evidence of Faille, as to his ponduct at the tiu^B they met the Svyan river brigade, and when the people of those cunoes said to the people of Mr. M^LcllanU canoe, !lbat Kiveny was a- bove the Dalles, and, in the exprosKions pf the PriMner, " that lie would •' take wre, or tiutt he would take good $age, of him, as it was he who had •' taken him prisoner;" but, at t^e saoje time, you will recollect that Faille said, tt^at ** he eould not *if.y whether the Prisoner had said so in f llireatening way*> {see puf^ei 18 and 19.) They allege also that La Pointt relates the same con versatioo, but with a very important addi- tion. He swore that, at the time this conversation took place, he heard De Heinltard say, 't J will take good care of him, it it I wlut will kill ^^ him.'* {pages 33 and 59.) Another suspicious circumstance, say the Crown olScerfl, is, that he was sci^t with five Bois-brules, and this fact has been ponfirmed by the witnesses for the Prisoner. Another part of tl^e evidence againat the Prisoner, is the conversation between the pco< pie of M^Lellan^s canoe, at the time the report of the gun was heard 'Upon the water, (of which I mean to speak again.) L(i Pointe says, that at that time one of the Bois-britlts exclaimed, '* Oh, the dogs,"** they have killed him.'* (page Si.) and that the prisoner, De Jleinhard, was then with Keveny. The officers of the Crown maintain that this expression, made use of on the impulse of the moment, demonstrates the expectation which all who were in the canoe liadi that Keveny would bt killed. Another circumstance vv^ich demands your attention is this. La Pointe says, that be saw De Reinhard's sword, but that he does not know whe- ther it was bloody; (page 35.) the otlier witness, Faille, says piopitively . that he saw the sword in his hand, and that he saw blood on the sword. {page 23.) Both these men talk of fievenyh clolhes which were in the small caooe on its arrival. One says that they certainly were not the flothes which be had on at the time they left him, but be ^ays, upon his ' r I.'" \ \v 1 "'\ u i K » The expression, " Oh^ the dogs," the reporter has not upon his notes of this trial. He remembers, from the impression it made on him, that upon one of the examinations of this witness he did so testify. He rather thinks it must have been in Mhrch,^ but he has not his report at ^and to refar to,^. •■%■ ^. ,,,, . ^i,. . v. in'-^yh' ■ : ,-, iu -i * .ri-'u n*>* . y^* ^' : ■^. ; '1 •ith, that tliey were Kntnjft clothet, and that he bed aeen Ktveny weir Ihem daring the voyage, (pagei 26, S5, 59.) Both of them agree In laying that D« Reinhard divided Keveny*$ thing! , and both of them npeak •f the misunderstanding with the BoU-bHiUt, and they also agree In relating the conversation, which, they say, took place at the time of the ^vhion. La Pointe relates thai tlie Priraner said, ** As it was I who ** Ititfed him, I will have my choice of the things, and, as Mainvilie wns ** with me and helped to kill him, he (shall have more than the othem.'* (pagt 85.) Faj/fe, in speaking of this circumstarce, says the same thing. JLa P»tn/e saye, that " on the arrival of the small canoe, some one on ** shore asked, what had been done with Keveny, and that De Reinhard, " being then in the canoe, replied, * he h well hidden, he will not come ** back again.* " (page 34.) FailUt in speaking or this conversation, layg ** that on the arrival of the eanoe, M^Lellan, Grant, Cadotte, and another ** came forward, and that one of the four asked, what they had done **■ wKh the prisoner Keveny," and he says, that one of the three who were in the canoe, but he does not say which, anowered, " He is well ** bid where we have left him.*' (page 24.) La Poinie has given a se* pirate account, by which he says, that Mainvilie recounted the manner in whiMk the murder bad been conmiitted by De Reiuhard, and the re* sistanee which Keveny made, (page 35.) and both agree in saying, that at that time De Reinhard was very near, but that be said nothing. Faille and La Pointe agree again in representing, tlrat they were forbid- den by the Prisoner to talk of this murder, and that they were told, that ff they talked of the murder they would be punished, (pagei S6 and 36.) His confessions made to five people are, however, the strongest evidence •gainst the Prisoner. He made the same confessions to all five, and we have (after hearing the arguments of counsel) decided that we conld net reject them/ The first he made to Captain D*Orsonnen» ; the second to ' Mr. Nolin, when they were walking together, (page 84.) Then there is his confession to Mr. Vilehie, formerly his comrade, in which he re* lates all the circumstances of the death of Keveny, adding, '^ that he *^ had confessed the whole to Captain D^Ortonnent, and that he was going *' to do the tame to my Lord Sslkirk, hoping to be admitted King''s ** evidence, but he did not say that he had had any conversation with *' Captain D^Orsonnevt relative to that hope." (page 87.) Afterwards we find him in the hands of Lord Selkirk, with his declaration, made by Ills own hand, in his proper hand-writing, (paget 112 to 120.) Ton will, no doubt, consider these circumstances as very strong, but there is yet another, which, if it be not Wronger even than the others, is equaUif worthy of remark. I allude to his declaration to JIfr. Miles Maedoncll. He began a eonversatioa himsel/ mih Mr, Macdonellf and told him that 199 ^ « be was • prtfoner, ami thai he had kiUad a gantleman xtt the HudMa'a •• Bay Company," and added, •* ihall I name him to you 7" and whea Iff. Maedonelt laid ♦♦ yes,\ he then named K$v*ny. (page 92.) Thia li a oirounoftanco ve«y extraordinary of itself, but Mr. MaedoniU laya ** lie ipoke of JCei^nj^ wkh regret, and with penitence for what be bad "ilnne." Tbe law«lwayiconiideri a confession apparently produced by tbe compunctiutM of conscience ai a circumstance of a very itrocig ' nature. IfaconCBwioD bnoxorted by Aop«, or by /ear, it knot evl- il^ce, but in this coofe^sion, made to Mr. Maedonelt, he scemi to think that be perceiv "I the /ore* a/ (H^iscienee. He related all tbe particulars and Mr. Macdonell adds, " tbo prisoner, De Reinhard, appeared to me to " be very penitent for what he had done, and confessed that he had dona *' wrong, but that he bad been led into error through ignorance." (pag4 93.) I am not willing to expreu any opinion upon this head. Tbe first tine that the witnesses say Uio Prisoner confessed, he was not apparenlljf under the influence of fear, nor in expectation of beneit. This was at the time when the fmall canoe arrived, after the murder is charged to have been committed. If you believe that his second confession was iafluenced by the circumstances of the situation of the country ; if you consider that, at the time of his recital to Captain D^Ortonnent, his mind was so agitated that you cannot rely on what he then said, then yoit will reject it ; but it is for you to weigh whether his mind was, or was not so agitated, and, if you believe it was not, then you cannot re- ject it. It has appeared to me, gentlemen, thai I was bound to make these remarks upon the evidence, produced to you, on tbe part of the Crown. His confessions have been frequent, besides that made to Cap- tain D*Ortonnens. What he said to Captain D^Orsonnens, the same he said to JIfr. Ao/tn, to Vilchie, and to Mr. Macdonell; and, assuredly, he said the same to the Earl of Selkirk. - •. tim siit'i On the part of the Prisoner it is my duty to state to yoO, that ha hag succeeded, in establishing the existence, of a most extraordinary state of affairs. If he has not proved that an open war existed in that coun? try, a war known to the law as such, yet he has proved a state of actual warfare. The discrepancies between the evidence of Fat7/e and of La Peinte on tliis trial, as also the difference between Faille'^s evidence on the two trials have equally been proved. Faille says, (in this trial,) " De Reinhard did not personally tell me that he had killed Keveny.^ ■« m '■•■•i £02 i 11 I m 1 tross-tvmnination, Im Bissoniere, speaking of the cannon, says, ^ | *^ saw Captain D'Orronnens go away with his people for Lake la Pluie, " and he took with him two pieces of cannon. They were mounted ore " tcheels ; they belonged to the North West Company, and had been " taken from Fort William." In bis cross^xamiDatk>n he says the same thing ; '^ when Captain D'Orsonnens went away f^r Lake la Pluie, " tlie cannon were embarked, and they were ready mounted.*^ (fSf^ 1^7.) Chretien, speaking of this circumstance, says, " At the time when I *'■ was in tlie tent at the portage of Lake la Pluie, I saw two pieces of ** brass cannon, mounted upon their carriage*, landed at Captain D'Or» **■ $onnens* camp. I had before seen these two pieces of cannon on the " vessel of Fort William, and I recollected them well." (^page 137.) On this subject Captain D^Orsonnens says, '* J had no fannon mourUed " till after De Reinhard's declaration had been made. Mr. Yitchie " brought me two small pieces, on the fifth or sixth of October." (page 81.) He said that on his croiss-examination. On his examination ia chief he swore, *' We went by the way of Fort William ; we had can< *^ non, but not mounted, nor any materials for so doing. They were in- '* tended for Red River, for the defence of the colony." {page 58.) This constitutes the difference between the evidence for the Crown, and that on the part of the Prisoner ; and, also, the apparent variation be- tween that of Captain D'Orsonnens on his examination in chief, and bis cross^xamination. It is for you, we must say again, to judge, but per- haps the apparent variation in Captain D'Orsonnens' testimony may be reconciled, when %ve consider that Captain D'Orsonnens always speaks of De Reinhard's declaration, that is to say, his evidence /elates an oc- currence as happening before, or after, his declaration; thus, when speaking of these cannon, lie says, *^ that he had not any cannon mountti ^' till after De Ueinhard^s declaration." With regard to the variation between Captain D'Orsonnens and the witnesses for the Prisoner, it is your province to say to whom you will give credence. Another cir- cumstance which the Prisoner's counsel have pleaded, is, that the JUeu- rons had infiuenoed him to make his confession to Captain D'Orsonnens, and that his mind was not free. But I fear that this circumstance wiU not avail him, because all the witnesses agree that the Meurons did not arrive till seve:n o'clock in the evening, and his declaration was made at two or three o'clock in the afternoon, or, at the latest, four o'clock. Yet another circumstance in favour of the Prisoner, occurs in the evidence of Mr. Coltman. He was very near the United States, so near that Mr. Collnian says he was apprehensive he might escape, but he did not attempt to escape. He is entitled, gentlemen, to be considered as not guilty, until the moment when you are satisfied, and that you mutt ; / 203 fty, \iy your verdict, that he is guilty. To enable you to say whether be it guilty or not gut%, you will weigh well the evidence on one side and the other. If, when you have considered it, you set his confessions aside, and, with them, the evidence of Faille and La Pont/e, you will tay that he is not guilty. On the contrary, gentlemen, if you do not perceive suflkient grounds to satisfy your conscience that it is your duty to discard from your belief, as well his confession^ as the evidence of Captain i)'Or«onfien«, otFaille, and of LaPointe; I say, that if you ere convinced, according to his confession and the other evidence, that the Prisoner is at all guilty, I am bound to tell you, that he is guilty of tli« crime of murdtr. The evidence does not prove any excuse for the Prisoner. The crime, supposing you find that it has been cjmmitted, is the crime of murder^ and of murder alone. The circumstances of his ease have not left you the alternative of reducing the crime to any other degree of homicide. It is not possible to say, that it is manslaughter ^ nor any other degree of homicide than that of murder. 6en//emen,-r— Vou are now to exercise your judgment upon the whole of the testimony which has been given, both on the part of the Crown, and on the part of the Prisoner, and, in so doing, I desire that no more attention may be paid to any thing, which I have stated to you relative to the facts and circumstances of the case, than so much as is necessary to conduct you to the consideration of the points which you are called upon to determine, as well/or as against the Prisoner. Every verdict, ought to be emphatically, the verdict of the Jury sworn to return it ; and, therefore, let the opinion, which you give, be entirely yovr oxw.. Reflect upon what you owe to tlie Prisoner, but do not forget what you owe to the community at large. Pay the most serious attention to the whole of the evidence which has been laid before you, in this lon"- and very important trial, on both sides; and, when you have duly and conscientiously weighed it with deliberation, and have satii^fied your consciences, give that verdict which shall enable you, tit all times, to tay, "We have well and truly tried, and true deliverance made, be- '* tween our Sovereign Lord the King, and the Prisoner, Charles De " Reinhard, and we have given a true verdict, conformably to the evi^ " dence and to our oatbs.^' [Tlie Jury then retired under the care of constables, sworn in the u- sual manner ; after they had- been out of Court about an hour, a mes- sage was sent to ascertain if it was likely they would soon agree, the answer being in the negative, the Court adjourned till seven o'clock, P. M, Having re-assembled at that hour ; shortly after the Jury entered, and being called over, were found to be all present.] .;■>"■ The usual formalities being gone through, the foreman, {Mr. levaU Ir I ,:»i M mi iM «. . I i il ilr" . .(■:■' 204 /e'e,) returned the following verdict: " According to thetvidenee uhieh *^ has been given, tue find him {the Prisoner,) gvxltt of ha.vxko Ag- ♦« sisTEO in the Murder, upon the eight couwt."* • . -; , Chief Justice Sewell. — Gentlemen, I took tlie precaution of telling you this motningt if you recollect, that your duty would be to say, whe- ther the Prisoner is or is not guilty of the crime ot Murder ; because the alternative was not, by the circumstances of the case, left to you of re- ducing the crime to any other degree of homicide. If he be at all guilty according to the indictment, he is guilty of the crime of Murder, and of Murder alone. If you find him guilty of aiding, assisting, &c. you in effect fiud him guilty of the crime of Murder upon the fourth count as well as the ci^'/j//*. ;i-') ■ j;::.; ■ :;,:i ••([-ue .:ti<'.;;-j ■ .•;■.!.' : The foreman of the Jury repeating the verdict in the same terms, the Chief Justice said, ^* and on the fourtli count also : ; Mo7P say you?^^ On which Mr. Stuart, with some emotion, begged of the Court *' that " the verdict might be taken and entered Just as the Jury gave it.*^ The Chief Justice said, *^ the Court could not enter a oontbadictory verdict, *' or one contrary to lawJ** To which 3Ir. Stuart replied, that •* there ** was no danger of such an one being returned, if the Jury's understand* ** ing of the offence was taken, and that it was their province to say of " what they did intend to convict the Prisoner.''* Mr. Justice Bowen ex< plained that both counts being precisely alike, tlie Court could not al- low the Jury to convict on the one and to acquit on the o/Aer->-" for" (said he,) " what would be the consequence of so doing ? — The verdict be- " ing contradictory it would necessarily be wtd."— Jtfr. Stuart renewed his request, saying, he had nothing t6 do with consequences. The Court repeated its determination not to take a contradictory verdict, to which Mr. Stuart rejoined, '* I presume your Honours will take the verdict " such as the Jury gaVe it, which is nil I ask." ^ \.tr^v-\t.» ■-, tt . The Chief Justice recommended the Jury to retire, and reconsider iWir verdict ; upon which Mr. Lavallee explained to the Court, that considering the Prisoner guilty oi assisting Mainvxlle, who commu- ted the Murder, the Jury found hun gvilty upon the eight count. — Mr. Justice Bowen strongly urged upon the Jury, that if they intended to find the Prisoner guilty of having been present, aiding Mainville, they must find him guilty upon the /our/Zi count, as being that which^rs^ re- counted the charge of Mainville's having killed Owen Keveny with a gun, the Prisoner, Charles ]>e Reinhard, being then and there present, aiding and assisting in the murder. He pointed out the * " Suivant le temoignage qui a etc rendu, nous le. trouvons covpabk d'avoir assiste dans le Mcurtre selon le huitieme chef,** Kf- ' £05 only difference between the two eounta to be, that by the eighth, the crioM of some other persons acaised was reduced, but not that of /Ae Prisoner; and concluded by endeavouring forcibly to impress upon their minds the impossibility of saying, that the Prisoner was guilty upon the fourth^ when as far as regarded Db Rmir hard, (who alone was on triag both counts were precisely the same.— The Chief Juatiu briefly enforced Mr, Justice BowenU view of the duty of the Jury, adding, with great earn- estness : " It is, therefwey that we request you will reconsider your ver- «• diet, because if you find the Prisoner ouzlty upon the e^hth count, " and at the eanae time say that he is kot quiltt upon the remaining «• counts, it is a manifest eon^raiic/iow, for (as regards the Prisoner,) the ♦' FOURTH is precisely the same as the eighth.'' [Mr. Stuart again urg^d the Court to receive as the verdict— " that •• the Prisoner is guilti/ upon the eighth count, and not guilty on the «' others ;" and was answered, that it would be a contradictory verdict, and therefore the Court could not receive it. He then pointedly asked, " am I then to understand that the ('ourt refuse to receive the verdict ?** And the Chief Justice replied, " certainly, Mr, Stuart^ we tlo refuse. *' You ask us in the face of all the world, to let a Jury say, that Main- " ville DID with a gun kill Owen Keveny, De Reinhard being present " aiding, &c. and at the same time to let them also say, that he did *' not kill him, and that he was not so present. The thing is ab« " surd." — Mr. Vanfelson commenced an address, but was stopped by the Chief Justice, who remarked, that ** no assistance was wanted by the *' Court in entering the verdict, nor should a particle of justice be with- ** held from the Prisoner." Mr. Stuart observed, that all he asked was to have the verdict as given by the Jury taken, alleging that it was their province to give it, and the Prisoner's privilege to have it entered of record, be it what it may; adding, ** what may be the consequence " hereafter, I have nothing to do with, I only want the verdict as they " gave it by iheir foreman." The Court stated, that the Jury had not given a verdict, as they were not agreed. To which Mr. Stuart rejoin- ed, that they had better retire ; but they had said to the officer of the Court, " that they were agreed.*^ The Chief Justice directed the fourth and eighth counts, as far as related to the Prisoner, to be read ; which was done by Mr. lyEstimauville. (The eiglUh was read thhughoul.)] Mr. Stuart. — I hope your Honours will lay down the law to the Ju- ry, on the doctrine of accessary before, and after, the fact, as probably they have not clearly comprehended the application of a point of law to the evidence. Chief Justice Sewell.— There is no such charge in the indictment as that of accessary before, or after, the fact, against De ReinJiard^ and ;i: Mill 20^ iS^M I'.i W f 4l N.'i; k ",i therefore there eah be no necenity of explaining the law to the Jury oa « point not involred in this case. The verdict against De Reinhard can< not be manslaughter, or any diminished homicide. The charge against him is murder, and murder only. •' . f .-• ^ '- >^ %»'.->-. * Mr. Stuart.-^I know it ; but the intention of the Jury in the verditt which they returned would, had it been entered, have appeared. It was not to find him guilty ofmurdery but of being an accessary.' ^ "■ ■ ""' Solicitor Genera/.— ^They cannot find such a verdict, for as yotir Hon* ours have remarked there is ho charge' against the Prisoner, but that of murder. ^'' ''-- • ■ - - •-. • ' ' / * Chief JtistiitBewelL'—J #111 not certainly permit the Jury to say the Prisoner is guilty of any other crime than that of murder which is charge tfd, but I will 'ehter a verdict of not guilty, if returned by the Jury, with the greatest pleasure. JIfr. Stuart. — I humbly submit that there could be no impropriety in your Honours explaining to the Jury the application of the principle of an accessary before and after the fact, inasmuch as, from the verdict ofx fered by the Jury, it is evident they were about finding him so, and what the e^ecfof their so finding would be, I humbly contend, is not a question for our consideration at the present moment. They are to give a verdict, and as it is to be their verdict, I submit we are bound to receive It, without en(|uiring what may, or may not, be the consequences of that verdict. Chief Justice SewcU. — The law upon the subject of accessary before or after the fact is so clear that there can be no misunderstanding upon the subject, and it is equally clear that, in no point of view, docs it apply to this unfortunate man. An accessary antecedent to the commission of the offence, becomes so by aiding, proposing, counselling, encouraging, or by any acts which may have direct tendency to excite to the perpe<- tration of crime. An accessary after the offence is committed, becomcx so by receiving the felon, aiding his escape, or any other conduct the tendency of which is, to shield the perpetrator of the crime, or enable him to escape the course of justice. Those are principles of law. Thi* indictment states to us a fact, namely, that De Reinhard, of malice a< forethought, killed the deceased, or was present, aiding and assisting an* other in the act, and the law, in either of the cases, constitutes such a charge, a charge of murder, and of murder only, :i Mr. Vanfelson rose, but uias notpermiiuu to address the Court. [The Chief Justice recommending the Jury to retire, Mr. LevalUe observed: "'MRinville began to commit the murder, and De Reinhard " was present and -assisting him. This is my verdict, and the verdict of 201 ** my colleagues, according to the evidence we have heard, and we wilt " return no other."— The Chief Justice remarked, '♦ that is to say, gen* " tlemen, that he is guilty upon the fourth and eighth counts ;"— to which Mr. Levallee replied, «• it is the same thing."— The clerk of the Crown having, under the direction of the Court, entered a verdict of guilty upon the two counts, read it to the Jury ; but upon asking their concurrence in the usual form, " and so you say all" one of them (jifr. Tfohan,) said " No, not on the two counts." The Court observing, ♦• Gentlemen, you must be all agreed ; you had better retirte," it wai suggested that Mr. Trahan had not distinctly heard the fourth eounl j upon which, the part of it relating De Reinhard was read again by di- rection of the Chief Justice, who, after enquiring if the Juror had right* ly heard it, and being answered " ye«," begged him to attend to the eighth, and see if there was the least difference between the two. The eighth count having been read, Mr. Stuart wished to know If the whole of the fourth count was read, to which the Chief Justice observed, that all relating to De Reinhard bad been, and that it was unnecessary to read what related to the accessaries, to enable the Jury to decide on the guilt or innocence of the Prisoner. This not being satisfactory to Mr. Stuart, it was remarked by Mr. Justice Bowen, that the accussed having chosen to have separate trials, the charges against them must be severed also— that the counts then in discussion, containing two distinct charges, and against different persons, it could be of no consequence to read to tbo Jury, on the trial of the principal, the accusation against the accessariest Mr. Stuart again expressed his dissatisfaction, adding, (with some em- pbasis,) ** I beg again to repeat, very respectfully, to the Court, that all " I ask is that, if the Jury are to find on a count, they may hear it read, " indeed I know of no bight that exists to keep any part from them.*'"] Chief Justice Sewell. — What is it, Mr. Stuart, that you propose to ef- fect by having it read ? What do you wish, or mean, to have read ? Mr.StuarL — I mean, with great deference to the Court, to contend that the whole of the fourth count should be read, and that the officer of the Court had no right to keep back any part of it. : v Solicitor-General. — You^ Honours must perceive, that the object of all this is, merely to distract the attention of the Jury. My learned friend cannot propose to himself any other object by this course. What have the chaises against M^Lellan^ and others, to do with De Reinhard? Mr. Stuart. — All I mean is, to ask that the whole count may be read. Ilie Court will take such a course as they think proper. I feel it my duty to «& it. , i::, L j, , , . /... ^ .../ ' Solicitor-General. — I contend, may it please the Court, there are no reasons whatever for graating the application ; the present is not like a m H ^B' 4 B M wt ^■' t ! 'f m I^H i 'r j^H' '* . ;!/■ ( fl ' i IP'I m ll ,. ' 1^1 * -■ '1™ 1 if ■ ' 1' 1 i-'y. : ' ' . f. ■i - \ :vi[ ■^^;,!; , '.ih ; ':4f! -:' ^' ' ■ ■t" ^. - 1 ' I ■' "■■ i '< ^ 1 ' . '/Tl > <- ',. 'A ' .'■ '■ f ' '■ 1 • IL- ■ ■ - \ . '\ . \ '' ]:.., ;';/ 1 ! ^; 'u \ ■■'■ I ' s , r\- ) \ , '. T ll ' '■ ' '' ;:'*• '■k ^• ;:.|., .'i ':' i"l ■ M > ;) I'.it. 1. . 1 : -v r, .■ •■':i! t08 Vhl ! 4 ■1 !(i, h^> i ^> > Htiit^i formal reading of the Indictment, sncli os at the arraignment of a Pri Mmer, it is merely for the information of the Jury. For the sake of re- gularity, not that we can have any objection, from any effect the read* jng might produce, but solely from a desire to proceed regularly, I trust Ihatthe Court will not consider it necessary to grant this application. Mr. Justice Botcen. — If any important point, or material averment, ^ was contained in the remainder of the count, which it was necessary for this Jury to understand, I should be clearly of opinion that it ought to be granted, but I really cannot see the necessity, or propriety, of such reading. Chief Juitiu Sewdl. — What good it is to produce I know not, but kt it be read. [The Attomej/'General rose, to oppose the reading, but at the 8iig« . gestion of the Chief Juitiee — to which Mr. Justice Bowen stated, that though he did not see that any benefit could arise from it, he had no ob- jection to the reading — did not persist in the opposition. Mr. Sluart observed, his reason for urging its reading was, that if the Jury wer« iofind on it, tiot ofM word ought to be omitted. — ^The Court remarking, that the eighth count had been entirely read without the omission of even a name ; Mr, Stuart said, be only complained of the fourth. The Chitf Justice observed, ** then you want the names of the accomplices read, fur ** that in fact is all that remains to read ;*' to which Mr. Stuart rejoined, ** I do not Icnow what may remain ; I want the whole read, be it what "it may."] JTie fourth count was then read throughout by Mr. D^Estimauville. []>nring the whole of the discussion, of which the foregoing is an ac- curate compendium, the Prisoner appeared to be agitated, and upon the reading of the count being ended, he exclaimed, with considerable emo- tion, (ttt French,) " Mr. TfiEstimauville, have you finiidied with this jVi- *' stigationofthedevilP* (To the Chould be made longer by reading the iu* ** dictment/'— The Jury then consulted together in their box for a few minutes.] Mr. Lemllee, (addressing Ihe Court.) — We find him gttt//y on-the tighth indictment, that is, the eighth count of the indictment. Chief Justice ;ScM?e//.— What do you say to the fourth then, which is theytr«/ io order, and precisely the jame as the eighth ? ■ - * ' * ii «( «0J> 'K' Mr, 8ttUirt dnd m, Tanfthm^Yft h6p6 th6 venllct ^Ilt be tektft M they give it. '^^^^f^:^y.■,^,,^^, ^..;,^^ Chief Juttiise Semll,-^tmf\tmmt you mwt let ui understand what they do intend to ny, before we can record their verdict. I only want to Icnow, what, in point of fact they do lay, lo that I may enter it, if it is a verdict according to laW. Mr. LevaUu.'-'Wo find him guilty on the eighth count, of asMting. Chief Jutliu Setodl.-^We reqdeit you wHl ret It it a eontradic tofy verdict, and we eannot receive {/. A Juror.— It is useless for me to retire, it is my verdict, and I will };ive no other, were I to die of hunger. Chief Justice Sewell.—l{ yoU will listen to me for a moment, I will explain to you. By this verdict, you say, uport ybur oaths, that he is guilty upon the ei^th count, and you Also say, upon your same odths^ that he is not guilty upon all the others ; to say «o is a contradiction, for the /our/A and the eighth m6 exactly alike^ the same entirely ^ word for wordf as t") De Reinhard. . .^ • ,> < ». •.m-i» Tlie Jury then retired and shortly after returned into Courts and were called over. Officer of the Cour^.—Oentlemen; are you agreed upbn ydur verdict. Jury.— Yes, Sir. ., , , ^. .. Officer. — Who shall speak fbryou? ,, s . > > ;?,. i. h . Jury. -'Mr. Satville: Officer. — Look at the Prisonef. How do you say ? Is he guilty of the murder and felony, in the manner and form in which he stands charged in the indictment, or not guilty ? Jlfr. Sasville. — He is guilty upon the fourth and eight counts of the indictment^ and not guilty vpon the others. Chief Justice SewelL—liti it, Mr. Waller^ be so entered of record. ' Clerk of the Croum, (fty the Inrtrprefer.)— Gentlemen of the Jury, hearken to your verdict, as the Court have recorded it. You say that, " you find Caarles De ReiKhard ovilty of the fblont and " MURDER^ whereof he is accused, in manner and form as he stands " charged in the fourth and eighth counts of the indictment, and that " he is NOT GvxiiTV of the rest of the indictment'^— and so say you allt Jury.— Yes, Sir. uYv, v? ^ i>n. ...i,;/ . , - . . - .'..^ ^ Chief Justice Sewell.—'Do you hear and understand it, gentlemen ? Mr. S(MM7/e.— Yes, your Honours. Chief Justice SewcW.— Gentlemen, before you retire, the Court have to present you with its thanks, and .not only the thanks of the Court but those of the district at large, for your attention to this case.— I i , ; m tl 1 I, \ ^ 5 : . i'l.T'i '4 '■KM SIO <"f iijt 1 . r '* Gentlemen, the Court/or t/ie{^, and tn thi nanu of ike ditiridt moft itn. ccre/y /AaxXc 2/011, not only for your ailention, but for the manner hi which you have performed your duty, during thii long trial. Gentlemen, you are discharged. • '^^ * • '. [The Altornty-Qtntral Immediately m'oved for judgnuni against the Prisoner, and the enquiry being made, '* what he had to say, why the *' Court should not proceed to judj^metU and execution against him ?'.* Mr. VanfeUon stated, that be proposed, for divers reasons, to except to the Judgment. After mentioning some of them, he added, that their objections would be more fully stated by his colleague ; and as Mr. Slu* art restated those of ilfr. Van/dton, it is only necessary to observe, that one was to a point of law, and others related t6 the conduct of the Jury and of the officer , who had them in charge. Mr. Stuart intimating, that it was their intention to submit two mo- tions to the Court ; the one in arrest of judgment, and the other for a new trial ; and that the first step would be founded on the question of jurisdiction, — The Chief Justice observed, that the question of juritdie- Hon was done with, as the Court had given i's decision upon it, after a solemn argument, whihst the Jury had, by *Ve\r verdict given theirs.— He then directed Mr. Stuart to state the solid legal gounds upon which he proposed to discuss the motions.] Mr. Stuart. — I will state them explicitly to the Court. If the Coiut differ with me, my duty is of course to submit, but I will briefly state the course I propose to adopt, and it will include the grounds of objection submitted by my learned friend who is with me. My first objection goes to the question of juritak»iony which, although considered by the Court to be a point upon which tbey have decide^V, I may perhaps be per* mitted to renew to a certain extent. I do not desire to go again into an extended argument on the subject, but I do hope that in an incidental manner I may be permitted, to renew the consideration of the jurigdic* tion, as connected with the question of locality, I proceed to say, 2ndly. That neither this Court, nor any other Court in Canada, has the right to try (or felonies committed in the Indian territories. Power is only given them, I contend, for the trial of misdemeanours. Sdly. Waiving the last objection, I submit that, if power to try for felonies is given to any, still it is only to such as are the usual Coxirts, and not to a Court of Oyer and Terminer. My fourth objection will be, that two separate returns of the Jury have not been allowed by the Court to be taken ; although, as I con- tend, the Prisoner is entitled to have the verdict of the Jury recorded, without any consideration of what the consequence of that verdict may be. - ' ■ ' '■ .-', : I- : . ■ . . . .*;,;. ,;■'■-. 211 CMtfiuttiu Sei«e//.— W« cannot •Hon- y i ^r.Sluart, to argue tha propriety of our refusing to receive and rtcoi < UegaL, became a con- tradietory, verdict. All that we sidd to the Jur> vai th .<«, If yr-i find the Pri«onerfMi% of being preient, aiding, and a8^ ting Fwoii JUain- vt7/e, to murder Owen Ktvenjf, it must be, upon the two t Minis that charge that crime, or if guilty upon on« count only, then you must fttt, him so upon they!r<< which charges the offence, which Wthe fourth cou - - , but we cannot take, suck a verdict upon the eighth, because it would u^ mount to an absurdity, involvii^g in it a direct contradiction, as the fourth is verbatim the same, as far as the crime of the Prisoner is set forth. AVe cannot, Mr. Stuart, permit you to argue upon our refusal to record what wa« an iltegal, because a contraiietory, verdict. Mr. Stuart.— I merely state my objections, and must of course bow to the authority of your Honours. My next objection, waiving the for- mer ones, is, that by the iSd of the King, e«p. 138, it is only lubjtcti of the King, committing " offences in tlie Indian Territories," over whom the jurisdiction of this province is extended, and that, in the present case, the Prisoner is not stated in the indictment nor have tlie Crown officers proved him, to be a British subject^ and I might add that, in point of /ai^, he is not so. - Solieitor-Oeneral.'^I beg to remark that it was not necessary for us to prove that be teat a British subject. By the act upon which he was indicted, if he had riiewn that he was wrongfully or illegally indicted, be was entitled forthwith to his acquittal, but the » •• }yeifne$dayt 3 J June, |8f8. .'- f': ^RESENT AS BEFORK. THE Chief Juitiee enquiring if tlie gentlemen were ready to procee4 >vUh tlie argument, Mr. Stuart intimated that Mr. Vanfelion would open it, and he should follow him in support of the motions for a new trial, and in arrest of judgment. Mr.Solieitor-Oeneral questioned whe- ther it was eoMpetent to the Court to receive a motion for a new trial in a case of felony, and, as the Crown officers were prepared with autho- rities to shew that it could not, lie suggested that to enter upon a solemn argument till the question of competency was decided, might be a waste of time. The Chief Juetice remarlced tiiat, upon the motion in arre$t of judgment, their right to be fully heard could not be questioned. The better course, therefore, lu considered would be, to hear the Prisoner** counsel in support of their motiou till they were exceeding kgal bounds, and then to stop them, and argue the objections. A^ any other than thin apparently direct method, would, he feared, occupy more time, and present greater difficulties, he should direct Mr. Vanftlsonf who was Im open the argument to prooeed. Mr. Vanfelson.-^May it please the Court, — We shall have the h'^nour to submit two motions ; the first for a new trial, and the second in arrest of judgment. To support the first, we shall urge three grounds, first. That the confession proved by Doctor Allan, an received by the Court a« coming from the Prisoner, has not been lege y proved, and ought to have been rejected by the Court. ** Chief Justice Sewell. — If I understand yoi correctly, the ground yoo take is, that in receiving the confession of the Prisoner, delivered to the Earl of Selkirk in the presence of Doctor Allan, at common law, tiu CouH proceeded irregularly. » ^' ^' ^ '^ . ' . ' Mr. Vanfelson.-^WMh great deference to the Court, that is one of the points which we submit. The second is, misdirection to the Jury by the Court, in as much as there was no proof that Owen Keveny waj killed : I mean there was no proof of the baptismal name of Keveny, whether it was Owen or Oliver, or any other name, and the indictiaent nil ;■■; I jft*/(,t i' r II 1. 1 . 214 4 :i iv ■4 ■i y. '^ . v« r^i ^\ \ i ■fr* rill charges it to faav« been Omn Keyeny. It was, therefore, incumbent on the Crown to have proved that it wa.s Otoen Keveny, who bad been filled ; neither was there any proof given of the aclual death of Keveni/, Chief Justice Sewell.-^l must stop you, Mr, Van/elson, You must eonSne your arguments to legal objections, and, upon those, we shall be happy to hear you fully. Your objections to the not proving the bap. li&mal name of the deceased, and the want of positive demonstration of ihe death, are points that have been settled, and, to revive thein, ^vould be to try the cause again. JIfr. Vanfelsm. — We shall have the honour to submit to the Court in t|ie first place, the motion for a new trial. We believe that it will not be wrong for us to support it by such arguments as may present themselves to our min^s as calculated to evince that the grounds upon !which it is made are legal being conformable to the criminal law of England' I submit, therefoi;e, very respectfully to the Court, that in proposing this motion, and urging in its support the arguments I shall presently offer, I only fulfil my duty .towards the Prisoner, but, I fear, I have not correctly explained myself, and, by tl;>at means, have been misapprehended by your Honours. I propose |o subaait to the Court ihat my learned brethren, the officers of the Crown, have not proved the necessary and essential facts, namely, that Keveny is actually killed, nor that it is Owen Keveny who is dead. I also take the liberty of re* presenting that we consider the confeuion of JDe Reinhard^ admitted by the Court, as evidence that was not admissible. [Here Mr. V. was stopped, by the Court stating that those pointi being already decided, they could not hear an argument upon them. JKfr. F. contended, that at the present stage of the proceedings he was entitled to argue them. The Chief Justice expressed the readiness of the Court to hear his counsel upon every point that could advantage the Prisoner, but the legality of receiving the oonfession Aod been argued, and solemnly decided, by the Cowt^ whilst the point depending on the credibility^Dfthe witness^ bad bean decided by the Jury, and, it was, therefore, impossible for the Court to hear further discussion on those points. Mr. V. again urged his opinion, and liegged the Court to coa? fider him as arguing on general grounds, though he considered, at this Mage of the proceedings, so far from being beyond his privilege in bringr ing before the Court the receipt of illegal evidence, or its own misdi- rection, that it was *^ no unusual occurrence, but the constant practice.'' Mr. Justice Bowen observed, that points of law depided in the lower Courts were often brought up to the superiour^ and arguments took place upon the correctness of the decision ; but^ he believed, no case eveft was heajrd of, wherein a Court was called upon to hear a solemQ irgtitnent the object of which must be to induce it to ttwru it vaU ifecmon/] .,' ti.-": ,■.:>., :■•■■.,-, ,;•.: :, -•■?■? ., .*-■* Chief JiMtite Sewttl—Ii is the wish of the Court, in refusing to heai< an argument on what is inufact already decided, (and decided after hear- ing argument,) Jn the most solemn manner, that you shotild distinctly appreciate our motives for so doing. The indictment charges Owert Kcveny to have been Icilled by Mainville^ the Prisoner being present, aiding in the murder ; and the Jury have, by their verdict, declared Otoen Keveny was the person killed. As to the proof of the aetwi death, the verdict equally establishes that point. In the absence of jjo- ntive evidence of the death, by the body having becta teen, the Crowtt officers produced a chain of testimony, from whitfh,^ as they contended, the death must be in/erred, The Jury have, by their verdict, declaretl that th^y did so infer, and have decided alike, that the man is dead, and that the man who was murdered by Mainville, was actually, as is charged in the indictment, Owen Keveny# They have decided these matters, and we cannot meddle with their decision. Their verdict it upon record, they returned it according to the credit which they gave to the evidence, and not against manifest evidence, and we cannot on that ground disturb it. Had they acquitted even against manifest evidenee^ we could only, before recording the verdict, direct the jury to go out again, and reconsider the matter, but not after the verdict had been re> corded, then, though it was a verdict against evidence, we could not set it aside, on a prosecution properly criminal; and, though a verdict which convicts may be set aside, under the humane provisions of otir law, it is only for being given contrary to evidence, or the misdirections of the judge. These rules are found in Snd Hawkins, cap. 47. seel, 11 and 11 Mr. Justice Bowen. — The point is so well established, that, ajler a conviction, a motion in arrest of judgment must be on clear matter of law, that I confess I am surprised it should be attempted to pursue a different course. — My Lord Hale expressly lays it down, after convic- tion a motion in arrest of judgment must be on a clear point of /ato, and not offact, and that if a Jgry bad found even contrary to fact, still such finding could not stay judgment, though it furnished ground for a recommendation to mercy. But a verdict being recorded, unless on points of law, a Court can hear nothing, as if they did, they would be • Jury, deciding upon facts, instead of Judges, administering law» ' ? Mr. Vanfdson.— May it please the Court, I have no desire in sub- mitting these two motions, that points already decided should be re-nr-' g«ed, but I do submit on the part of the Prisoner, under a firm persua- Mon that it is my duty, and equally my right, to do so, two motioos. ills 'I !::l ; I -' 'I I '':•: ni '\ ' ^i \ ■! -^"I 3 if m >jU tte :;, lii aifi Wm • -tfi;.! ? '*;, J ibe oiffe {oi a nev^ trial, Anil the other in arrest' of jutl^merft. tn sap.« port of these motions, I have the honour to submit that ** the eonfessioA •* of the Prisoner ought riot to have been received ;" again, I submit, ccr- lainiy, with great defereniie to the Court, that the directions given iv the Jury by thei President of this Court,' upon the two points, namely, the christian name, and the death, of Keveny, were not Conformable to law, and that, in following those dlredtions, the Jury found the death' of Owen Keveny, without any proof. Chief Justice Sewell. — We (iannbt allow you to argue the pomts yo* mention. You ttre, by this course, asking us to take up the cause again, and go thi'ough it froni beginning to end, point by. point, and say whe- ther or not the Jury have rightly decidied on the matters o( fact, and l^hether the Court have decided rightly on the ({uestfon of law. We can- not do H ; if you have a motion for a new trial, or in arrest of judgment, let them be supported by legal arguments, and we are ready to hear you at any length your inclination, gUided by a senise of duty, may lead you to address fts. .' .^^-w ' Solicitor-General.— '1 request permission again to remark, th^t it ap< pears to me to be a question whether the Court have power to grant a new trial itf a ease bt felony, and, if they have not, that it will be use< less for my learned friends to occupy the time of the Court upon a sub- ject which, perhaps, if strictly looked into, ought not to be enteriained •t all, I take it to be A settled point, that in no offence higher than a misdemeanor, can a new trial be granted, and, if that opinion is not erroneous, I should consider that my learned friends cannot be permit- ted to argue the former motion, but must confine themselves to that in vrest of judgment. Mr. Stuart. — I by no means consider that it is a settled point that a Bew trial cannot be granted in a case of felony. The course, I believe, which is to be observed in this argument is, that we shall be first heard in support of the motions, and the learned Crown oiScers will reply to u$. In so doing, they will oppose such authorities, as their judgments esteem to weigh against us, but I beg that we may be permitted to state the g;rounds upon which we rely, without interruptiort. My learned friend, 3Ir. Vanfelson, will open to the Court our reasons in support of the mo- tions, and I shall have the honour to follow him. IF we exceed the fair limits of discussion, or advance illegal positions, we shall be stopped by the Bench, and, as is our duty, bow to any correction which its wisdom may dictate. | r^^ ^ - Mr. Var\felson. — The grounds then which I have the honour to sub- mit, in support of the two motions which we propose to lay before the Court, namely, for a riew trial, and in arrest of judgment, are numc* '"J'-'. ifoMS. in iiie first place, I say that the Prisoner's confession before my tord Selkirk ought not to have been received. Secondly, I submit, with (he greatest deference, that the Court misdirected the Jury with respect to the boundaries o( ihe province of Upper Canada; and thirdly, I main- tain that the J' ry have found that the Prisoner assisted Mainvitle to liiil Owen KeVeny, contrafy to, or rather vfritbout any evidence, inasmuch as the officers of the Cl>own have not put in proof that Keveny is actually (lead, nor that it was Owen Keveny, who was Icilled by Mainville.— These are the means by which I propose to support the motion for A new trial. Mr. Juslite Bowcn. — And they are grounds upon which, I confess^ 1 think we ought not to liear you. On the face of them is stated what certainly is not a fact, for the verdict of the Jury directly and flatly contradicts it. Tlie verdict of the Jury, declaring the Prisoner to be ^ guilty of the felony whereof he was accused, m manner and form as " he stood charged in the indictment,'* explicitly says, that the man is (lead, and equally declares that it xvas Owen Kevewt whom the Pris^ oacr was present aiding and abetting in the niarder of. I confess that I cannot reconcile myself to hear you argue points already decided by the Jury, and without at this monlent expressing an opinion upon Mr. So- licilor^s suggestion as to the propriety of at all entertaining a motion for a new trial in a case oi felony, I i'emarJc that, if permitted, it must be argued on legdl grounds, and not upon matters of fact, for they were never withini the sphere of our dklum ; they belonged to the Jury, who have decided upon them according td their judgments and consciences ; we have recorded their decision, and have no right io meddle with it As to the confession, you have beta heard upon it, aud the Court so- lemnly pronounced as its decision that, as evidence at tommon law, it ms admissible, and could not be withheld from the Jury, it, therefore, went to them, and, in the exercise of their discretion, they liave (unfor* tunately for the prisoner) believed it. Under these circumstances, I think, it is going too far to endeavour to support a motion for a new trial, by calling upon us to say that in so deciding we acted contrary to law. As to entertaining a motion for a new trial, I repeat, at present I give no opinion. Attomey-Oeneral.'-^l beg permission of the Court to contend, before my learned friend resumes his observations, (as it may save time) that in receiving a motion for a new trial in this case, we are acting in con- tradiction to first principles. This is a case of felony, and, I believe, that it is settled, beyond dispute, that no new trial can be granted in cases of felony. I find no authority, which goes the lengtb of saying that a new trial can be granted, in a case of f*lony, tindet an.v eircunj' :■;: .*ii ^^:1 '''t ■h r ( ;,' I I , ! .1 ': ■( f:i ■J r m ■;!:i' 11 iii l,i '^ -I M, a piece of evidence at common law. The Court decided, after hearing the learned gentlemen against it, that it must be so received, it is, therefore, useless 219 to argue upon that point, as 1 take it your Honours will not be dinpoded to listen to an argument against your ovm decision. As to the Jury convicting against, or without^ evidence, it is equally unnecessary I should trouble the Court, as I consider the motion which that position was intended to support, viz. one for a ncio trial, must be refused to be heard. I beg to refer to another authority upon this point, IS, East^ ■pagt 416, the King versus the Inhabitants of Oxford, in a note,(b) " In •' capital cases at the assiees, if a conviction take place upon insufficient *' evidence, the common course is to apply to the Crown for a pardon, *' upon a full report of the evidence sent in by the learned judge to the " secretary of state for the home department, but I am not aware of any •' instance of a new trial being granted in a capital case, and upon the de- '• bate of all the judges in Margaret Tinklerh case, in 1781, it seemed to •' be considered that it could not be." Under these authorities, which, for the sake of preserving regularity, I have produced as conclusive a- gainst receiving a motion for a new trial, I presume the gentlemen will be compelled by the Court to restrain themselves to the motion in arrest of judgment. Mr. Stuart. — With permission of the Court, I will state very sum- marily the ground proposed to be occupied by the Prisoner's counsel on these motions, for 1 beg to say, that I consider it by no means a settled point that a motion for a new trial cannot be entertained and granted in a criipinal case, such as the present. It is true that, as the learned At< torney-General has shewn, there is a dictum upon the subject Chief Justice SewelL — Allow rae to interrupt you, Mr. Stuart, to say ihat we will hear you fully on every point which consistently with our duty we can do. You know we should be glad to hear you on every point which your judgments consider it to be your duty to urge on be- half of this unfortunate Prisoner, but the solid, legal points in arrest of judgment, must not be confoiuided witk reasons to suspend the execu- tion of the judgment as they must be addressed to another quarter. It is not necessary to determine at the present moment how far a new trial can or cannot be granted in cases of felony. We will hear you fully on the grounds of your legal, indisputably legal, motion, that in arrest of judgment, and incidentally you may touch on other matter?, but, if you exceed legal bounds, you must of course be stopped — I think this course Mill save much time and enable you. Gentlemen, who have to snpport the motion to attain fully the objects you have in view without trenching on what appears to have been fully considered, and in fact determined. Mr. Va't\felson. — Then, may it please the Court, I submit on the motion in arrest of judgment two positions. That this Court has not jurisdiction or power, under the statute of the 43d of the King, to take '!l :ii ! r i I l'-' '¥^' if 8. it ■! 1^ I it • .1) \i w \ 2^0 'J W 'M 1^5 ,iil; ,^1-™ ^ll. 3 I-/ • f ( if I I 'I'i -''S' Its'!' (cognizance ofuffiBncec committed in the Indian territories ; and, setondly, that if the Court can take cognizance of some offences, it has not thq power to try any felony. By tl^e first position, I say generally, that a Court of Oyer and Terminer does not originally possess any jurisdiction iQ take cognisance of ounces committed in tho Indian territories, ancj that the statute of the iSd of the King, does not give it to any Court of the province of Lower Canada, but to the Courts, to the " usual Courts^* that is, the ordinary Courts. It is 'tyell known the statute of the 31/^ of the King, commonly called the " Judicature act," divid" ♦he pro- vince of Lower Canada into three districts, in each of which a Court was erected, and, I submit to your Honours, that it is in these district Courts— the district of Quebec, of Montreal, and of Three Rivets— we must recoig'nize the " usual Courts^* of this province. Let us now look for a moment at the act of 1803, and we sijall see that it contains tvo or three very remarkable things. Let us first read its title an4 preamble, and then compare them wit^ the statute of the Silh of the King, cap. 6. Mr, Vanfelson having read (he title and preaniblp epnlinued ,* Here we perceive the evil requiring a remedy. It was, that grea^ crimes and oftences had beeu committed in the Indian territories, and, for want of a competent jurisdiction to try them, the offenders had es- caped with inipunity. The remedy, which this act provides, is to give to the Courts of the Provinces of Lower and Upper Canada, authority to try crimes and oi&nces so committed, ** in tlie same manner as if they **■ had been committed within (one or other of) those provinces ;'* the act further declaring that they '* shall be, and be deemed to be, (fences •/ ** the same nature, and subject to the same punishment.** Before we refer to the " Judicature aeP* let us examine the Sd section of this act for what is said concerning the Courts of the two provinces. Mr. Vanfelson read it throughout, and continued ; I pr^y the attention of the Court to the words " inay and shall be V prosecuted and tried in the Courts of the Province of Lower Canada," &c. whilst, in speaking of Upper Canada, this section says the Court. Vfh&t Courts? assuredly the Courts of the three districts established by the act of the Sith of the King, to which we shall presently refer. The reason this distinction was made between the two provinces is obvious — the province of Upper Canada has but one Court, whilst that of Lower Canada contains the Court of the district of Quebec, the Court of the district of Jlfon(reaf, which, together with the Court of King*s Bendi lor the district qf Thre& Rivers^ cpostitute ti^e usual Courts, Let us F>- S2l now advert to tbo S4th of tlie King, which is entitled " An act for the; " diviiiion of ihc provlnue of Lower Canada, for amending the Judicaturf) f* tliereof, and for repealing certain Jaws therein named.'' - . . . [Mr. Vanfdson read the preamble and first clause, which divides th^ province iuto three districts, and defines the boundarits of each — the se- cond and third constituting in ench of the districts of Quebec and Mori' (real Vi Court of King^s Bench, and establishing terms for holding the criminal sessions thereof ;. and the eleventh section which enacts that^ for the district of Three Rivers, a Court of King's Bench shall sit in tw^ terms of every year at the town of Three Rivers, for criminal and civif causes — and then continued his argument.] It is here, therefore, I submit, that we must seek for the wual cri- ininal Courts of this province, and, in one of them (he Prisoner wouli^ have been tried, had the olTenue been committed with'm the province.— I know very well that his Majesty has the prerogative of appointing Courts of '* Oyer and Terminer,^* and that the fourth section of this act provides for its exercise in this province. We say nothing against this provision, we know that it is specially the prerogative of his Majesty, and of his representative, to originate commissions of Oyer and Termi- ner; byt, I take the liberty of remarking, generally, — that such 4 Court is not co-equal, either in jts formation or in its powers, with the Courts oi King's Bench, and, in particular, I maintain that a Court of Oyer and Terminer and General Gaol Delivery, cannot be a Court de- signated by the act of 1 803. If we refer ^o the third section of that act, we shall perceive the im- possibility of a Court of Oyer and Terminer possessing authority to try offences committed in the Indian territories, for it is given alone to " the Courts in which offences of tjie same nature committed within the ." province are usuqilly tfiei." It is only tliat in speaking of Lower Ca- nada it is always said " the Courts!? whereas the term made use of in relation to Upper Canada is " the Coxfrt^' (although I consider tJiat cir- cumstance as strongly lk>dicating the views of parliament) but, if we look further into this section, we shall find the indention of parliament JO clearly expressed, that it is not possible to mistake what is meant by " the Courts" of Lower Canada. Having confined the jurisdiction, the act goes on to make full provision for the issuing of subpoenas and other processes to compel the attendance of witnesses. It appears to me that the moment we read the terms in which this power is conveyed, and the persons to whom it is delegated, it will be impossible longer to doubt that only to the Courts of the three districts created by the " Judimtnre ad" was power given, or jurisdiction extended, by the 43d Geo. III. cap. 138. - > m , 1 : 11 !' 4 I '■ I % \ M -^m I : ^"•''t y\\ ^? i i I. .^1 il-'l -'222 Mr. Van/elton read the third clause throughout calling upon the Court particularly to observe the expression " it shall be lawful for the judges^^* ^c. and continued ; ' / Proceeding to remark upon this part of the act of 1803, I submit' with much confidence, that this Court of Oyer and Terminer^ not having the officers of which the third section spealis, cannot bo the Court in- tended by the expression, " the Courts of the province of Lower Cana- ♦' da, in which crimes and offences of the like nature are usually tried"— because we perceive that the extended jurisdiction is given to the Courts in which judges preside. It is the judges, wh» by the act of 1803, ar* legally empowered to issue subpmnas, &c. Now, in the present Court, I say, (though with the utmost respect for your Honours,) that we have no judges. Your Honours sit at this moment as his Majesty^s Commin- sioners, but not as judges. Considering this circumstance, it follows, that this Court cannot be the usual Court, because in a usual Court it is judges who preside ; and in this province such a Court can only be found in the Courts o/Kingh Bench. ' [The Chief Justice pleasantly remarked^ that though he questioned their power, he hoped Mr, Vanfelson was jiot disposed to deny, that, in point of/act^ tliey were Judges, and Mr. Vanfelson said certainly not.] We say again, that another difference between the Court of Kivg^s Bench and a Court of Oyer and Terminer, exists in the nature and extent of the authority of the one and of the other. It is necessary for tliiD Court actually to meet before it can act. Before meeting it cannot even issue a subpoena — and why ? because a Court of Oyer and Terminer has no judges belonging to it. The officers of such a Court, are the King's Commissio'Mrs, and their power is of short duration, and at the game time of a different nature from that of judges, from beginning to end. Were a subpoena to be issued before the Court met, there exists no pow- er in the Commissioners to compel a witness to regard it, or to force an unwilling witness to attend. The situation of your Honours in this Court, as King's Commissioners, is altogether unlike that, you sustain tis judges of the Court of King's Bench. Your authority as Commission- ers of this Court, is like the Court itself, one of short duration, and as limited in power, whilst that of the judges of the Court of King's Bench is a permanent authority, and an authority as potent as it is permanent : for these reasons, because the power of a Court of Oyer and Terminer is not a perdurable one, nor sufficient even to enforce its own processes in the same way as the Court of King's Bench, and because the King's Commissioners are not judges, (or n§ed not be, or though judges yet as 223 Commiitioners they have not the power of judges,) we submit, that ihit Court has not power to take cognizance of offences committed in th« Indian Territories, wanting, as it does, almost all the distinguishing characters of the utual Courts, I would further remarlc, that in making provision for Courts of Oyer gnd Terminer, parliament has again distinctly marked the difference be- tween the two Courts. That of the King^s Bencli of each district, is not only a permanent and powerful Court, but it is an entire and complete one in itself, having power to execute its sentences. A Court of Oyer and Terminer on the contrary, is obliged by the jyih section of the '* Judicature jiet,** to suspend, in certain case.^: •.ofU ■ "■Tfl sliall find it limited to the trial of •• Crimea and offcneeii,^* to the exclusion offtlonies. By the freatnbU we see, that what gave occafifun for the act was, " Crimes and " offences" having been committed in the Indian Territories. (Prfow- ble read.) In the Ihird section, the same description is given'. (Seclior read.) After pfevloiisiy repeating this term several tim*!B, the coiiclu- •lon of this clause in delegating the power of issuing tubpcfenas to thr; Courts, expressly give« it—in relation to the trial of any trimes and of- femes made eognizcAU by this act< In the tetond section (throughout,) it appears to me that the words are so strong, that there cannot be two opinions. [Mr. Vanfehon read the section^ remarking that the aatne words tcere uniformly made use of.] All we have to ascertain is; what the LAW considers as '* crimes and nffcncesV* and certainly theft'^is no dif- ficulty in Saying, that misdkmkanors alone are understood by the term. As from the beginning to the end of the statnte of the iSd Geo. III. the words, *' crimes and ojftncesy^^ are used. I contend, it is cleur that no jurisdiction is given by it over felonies committed in the Indian Territories, bat only over misdemeanors ; because /ttoraei arc not in law considered as offences. In support of this opinion, I produce to your Honours a v6ry recent decision of the twelve judges of England, in the case of a man named Shatv, who was proceeded against under the act of kid Geo. III. cap. 85, and f'onnd guilty by the Jury. In arrest of judgment, the prisoner's counsel submitted that the Court could not, under the words, •' c. nes and ojfmcts committed in America,** take cognizance o( felonies ^ It was n*^ denied generally, that the Courts of England had the power of trying capital felonies<:ommitted in America, under certain circumstances, but this indictment being founded upon an act which only gives power to try crimes tind offences committed there, it was urged that the proceedings ought to be quafihed. I think that the r "iason for this is plain, because crimes and oflences are misdemeanors, and not felonies ; and my Lord Chief Justice Ellenborough, in pronounc* ing judgment npon the motion, eonRnned the position of Mr. Selwyn, {coui,sel for the prisoner,) that felonies were not included in the term crimes and offences, and therefore could not be tried under that act. Thus is seems that the Courts of England, and those Courts alone, are considered to Iiave authority to try felonies committed in certain parts of America. — I have here the reports at length in the case of Shaw, at the service of the Court, and I believe that your Honours will find that my statement is correct, r,.- .-f. ■ , -• i .*.,ij - < Chief Justice Sewell. — I shall certainly be glad to see them, thougfc f do not think my Lord EUenborovgh could intend to go tliatlength. '^V*^^ •''?*" Mr. Vanfflson.-^'l think your Honour will find that I have itatfed llic decision correctly ; It certainly vma it " the proceedings must be •» quashed," my Lord Eltenborough holding, with the counsel for the prisoner, that, under the terms ermtes and offences, which is made us* of in the Kfid Geo. III. tap. 85, felonies could not be Included — — Chief Justice. SewcU.-^Yen, but the decision was confined to that par- ticular statute. I beg your pardon, if I have interrupted you, 1 thought you had concluded yoUr observations. Mr. Vavfelson.—l was incfely going to have added, that the infer- ence I would draw from the opinion of my Lord Ellenborough, in con- junction with the statute of iSd Geo'. III. cap. 158, is, that the reason the power of trying for felonies was not extended to the Courts of tha provinces by that act, was that the prerogative or authority of doing so was intended la be exclusively possessed by the Courts of the parent state, and their intentiori is clear);' manifested, I think, by the term " trimet " and offences" being constantly used, which, according to this late de- cision, docs not include felonies. Chief Justice Sewell. — This decision upon Shavi*s case, goes no farther than to the individual act then before the judges. It was upon that particular statute that judgment was given, and, perhaps, you hav« !ihcwn enough to induce us to say, that, under that particular statute, crimes and offences, did not include felonies. We should certainly say, that the iZd Geo. III. cap. 85, could have no greater power than the trial of crimes that may be prosecuted by indictment and by informa- tion. It was in fact, an extension of an act passed in 11-lSth Willi- am III. to other cases. The question Shaiv^s case hinged upon was the point, whether, in an act so constituted, felonies were included in the term made use of, and it was said by the judges, no ; for the plain rea- son, /e/ont'es cannot be prosecuted by informatioti. Mr. Vanfelson.'^I shall now offer to the Court some reasons for sus- pending the judgment, if your Honours will not allow that I have suffi- ciently established the motion I have submitted. As they may not be strictly applicable to go in arrest of judgment, I propose, with the per- mission of the Court, to notice them incidentally. The first remark of that nature which I make is this :•— That the confession of the Prisoner, proved by Dr. Allan, is not a confession according to )aw, and ought not to have been received. Let us look at this confession, .-md we shall lee that it was made with all the formality of the statute of Philip and Mary, which says, that " in any fQlony whatever, the magistrate be- i' fore whom any person may be taken for manslaughter or felony, be- " fore he shall commit the accused, shall cause him to be examined, and " siltnll take the examination of such prisoner, and the information of ^ i .'i '< 11 .1 , I .-.1. ' n ■>i\ 7 1!' : ■ l: \ I Vi If ^^: 21 «n.— The Court received it— as a paper proved to be in the hand-writing of tlie Prisoner, and by him delivered to tho Earl af Selkirk — at common law, Mr, ran/e/jon.— Yes, your honours, but the argument which I very respectfully submit is this, seeing that this confession was in fad a for- mal confession, it ought not to have been received at common law, and moreover that the rule of law which requires that the best evidence shall always be produced was disregarded when it was to received. Admit for a moment that the confession had been offered at common law, in that ease we should have said, ** no; this confession, this paper, or what- *' ever you please to call it, cannot be proved by Dr. Allan, for this ** plain reason, that he cannot be the best witness to the circumstance, ** and the law requires the best evidence." The confession was not made to Dr. Allan^ the paper was not delivered to Dr. Allan ; no ; the con- fession was made, and the paper was delivered, to my Lord Selkirk, therefore it cannot be pretended that Dr. Mian is the best witness. It is most assuredly my Lord Selkirk^ who (it is a matter of public noto- riety) is within the jurisdiction of the Court, and ought to be produced by the Crown. As it has been remarked in the coarse of an argument 297 which took place during thi* trial, it does not lecomo the offlccra of the Crown to tell u$ that uit might have produced him. It was their duty to produce him to prove thli conression, whether as a maifistrate, or as the best evidence at common law. I beg your Honours' attention to this position, that if we look upon this paper as a cotj/femon under the itatute, we My, that in that case, it ought to have been proved by the magis- trate ; and that If we look upon it as an individual c tuined upon the subject. Indeed, whatever might exist before the ver- dict, I should consider to be legally removed or set at rest after he re- coiding a verdict finding the Prisoner guilty in manner and form ts he was charged in the indictment. Mr. Stuart. — I beg to remark, in reply to the SolicUor-Gcncral, that \vc are addressing ourselves to the Court upon law, and every thing connected with the record Is a matter of law. To his observations rela- tive to Mr. MacdoneWs testimony, setting at rest all difficulty upon the identity of the person said to have been killed, aud the person once ia the service of the Hudson's Bay Company, I do not see that it can ob« viate even the smallest. The utmost length Mr. Mwdonell went was, that a man named Owen Keveny was some time in the service of tlic Hudson'' s Bay Company, and that some two or three years before, he law him, but had not since. How that is to remove or set aside all, or any, difficulty as to the man killed not being proved to be Owen Keveny, or how it has a tendency to shew that it was Owen Keveny, I confess I cannot comprehend. " ." •I I ^t I 1^ ti M ' ' ■M 228 ill: f'r- ?i Mr. Justice Bowen. — I confess I rit, and have for some time sat, very reluctantly, to bear an argument upon either point, as I consider them both to have been decided by the voice <^ the country, whose peculiar indeed exclusive right, it is to decide. The Jury, in their verdict, find- ing the Prisoner guilty in manner and form as he stood charged in the indictment, declared that K^vfny is dead, and that it was Owen Keveny, whom the Prisoner aided Mainville to kill, because the indictment charged him with having helped, aided, and assisted, Mainville^ to kill Owen Keveny, not OUrer, or any other Keveny, but Owen Keveny. On the point of law involved in this objection, relative to the proof or description of the dt^ceased's nan^e, it is hardly necessary that I should say any thing, thinking as I do, ti^atwe ought not ^o hear you on this part of the subject at all. If there is a material error, so as to render the indictment insxiffj/cient, the Court will feel itself bound to arrest the judgment. But supposing that the question bad been raised at an earlkr period, or, that the Jury Jiad not, by their verdict, said Owen Keveny was killed, what would have been the effect ? The object of description is certainty, and it might be a question whether the indictment is not sufficient for that purpose. It is not an uncertainty as to the defendant himself, and we kqow tha'> it has been adjudged that an indictment for an assault, against John, parish priest of J), in the county ofC. is good, without even mentioning his surname ; this is mentioned in 2nJ Haw- kins, cap. ^, sect. 1 and 2, and he argues " if a wrongful surname of " the defendant himself wWl not vitiate an indictment as hath been more *'■ fully shewn, section 69, surely a fortiori the omission of the surname " of any other person will not vitiate it, especially where such person is " otherwise described with such certainty that it is impossible to mistake " him for any other.*' I merely mention this for your consideration, but, returning to the question of how far we ought to hear you at all, I am clearly of opinion that our doing so must imply that we have legal doubts of the correctness of tha Jury's finding, that we consider it a ver- dict against evidence, or contrary to his Honour the Chief Justice's di« rections. Now, if doubt does not exist in our minds, we ought not to hear you argue what the Jury have solemnly decided, according to my opinion. , . ,. Mr. Varjfelson. — I submit to your Honours that I ^m not beyond the legal right of argument upon the point, and that it is a point, which, in strict legal construction, I am privileged to argue. Upon this ground^ I urge again, that the finding of the Jury, with no evidence of the ac- tual death, is contrary to the opinion of the greatest and soundest law- yen that ever practiced at the bar or ornamented the bench. Lord Chief Justice Hale is exceedingly pointed on v^:o subject ; be says, vol. 229 td,Fnge £90, " 1 would never convict any person of murder, or man. '• slaughter, unless the fact was proved to be done, or at least the body ', '•found dead, for the eake of two cases, one mentioned in my Lord " Coke, P. C. cap. 104, page 232, a Warwickthire case, which is men- •' tioned in a note," an^ tl^e other stated by the learqed judge (Ho/e) himself. ... Mr. VAi^eUon read the eases at great length, and continued f These two cases induced the great and very learned judge to declare, that in a case of murder or homicide, fte would neve.' convict, unless tlje fad was absolutely proved to have been committed, or that at least th« dead body had been found. Mr. Justice Bowen.—WeW, now apply your law to the case before w; you remember also there are his own confessions. JIfr. Faw/c/son.— Yes ; but I say that his confession was not proved in conformity with the rules. Haivkins says, booktd. cop. 46, sect. 44, "but if a confession be no/ taken in writing, parole testimony maj/ be " given of it, and the prisoner thereon convicted, although it is totally " uncorroborated by any other evidence." Here the confession uas written, and I submit that the parole evidence of Dr. Allan is against the rules; now, if we take away the confession of the Prisoner, there does not remain a tittle of evidence of the death of ^eveny. What my Lord Hale considers it necessary should be proved is the actual death^ either by the corpse having been found, or the murder having been seen to be committed ; and the wisdom of this opinion is confirmed by a case in Leaclt, vol. 1, ease 127. the King versus Jane Warrickshall (in a note.) " Three men were tried and convicted for the murder of Mr. Harrison, *' of Camden, in Gloucestershire. One of them, under a promise of par- " don, confessed himself guilty of the fact. The confession wa^ not, " therefore, given in evidence against Aim, and a few years afterwards '* it appeared that Mr. Harrison was alive.^^ In this case, unfortunately, the man was executed, and afterwards we see Harrison was found to be dice. There is another case of the same nature which occurs to me at the moment, the case of a man who, in a scuffle with another, either fell, or was thrown, into a river, and who not making his appearance afterwards for some time, the other (being tried) was found guilty of his death. Some years afterwards the man, who was believed to have been drowned, was discovered to be alive. The application I am desi- rous of making is very plain. It is that in this case, the dead body has not been seen, no more than the perpetration of the offence, and that, with the exception of the confession, there is not a tittle of evidence of the actual death^ and further, that this confession even is not evidence ^ si '■f,f I 4 i> ' i ! ' tl Hi 'i ^;^1 230 * l> 7 ' 3 ' I of the death of Owen Keveny. I lubmit with confidence, considering I have with me the opinion of so learned a judge as my Lord Haky that, in a case of murder, the only certainly there can be of the death of the individual charged to have beeq killed, must arise from the murder haip^ ing been seen, or at least from the body having been ybunJ. I say that it is absolutely necessary, before finding a prisoner guilty of murder, that the actual death be undeniably proved, and in this case I submit that it has not been proved up to the present moment. With these cases before our eyes wc ought to be extremely cautious. It is upon these grounds that I have the honour to submit t|23 motions ; in the first place, for a new trial for the Prisoner ; and, if the Court does not grant that, I offer the observations in. arrest of judgment. My learned brother, ilfr. Sluarl, will follow me, and Avill more fully explain to the Court other reasons which we allege in support of the notions. My arguments upon the two positions go to this length ; that the Court is not possessed of any authority to try offences committed in the Indian territories, or, if it has such a power for smaller offences, it does not.^xtend to any felony ; and further that the confession ought not to have been received, that the actual death of Keveny has not been proved, that there is not one \i('ord of evidence which goes to prove the murder o(Owen Keveny, and that it is not at all certain that Owen Keveny is not at this moment still alive. I am bound to make my acknowledgments to the Court f)!- the attention with which I have been heard, and I hope that the motions I have submitted will be of benefit to the Prisoner. Chief Justice Sewell. — Before Mr. Stuart commences his argumenl?, I wish to remark that in all the cases you have alluded to relative to cir- cumstantial evidence, the obvious auestion of the actual death must have been left to the Jury. In this case, the question of the actual death of the man, and who it was that was killed, (if any person was,) went to the Jury, surrounded with all the circumstances which, in your opinions, lessened or destroyed their weight and credibility. The evi- dence of the death, of who killed, of who was present, aiding, and who it was that was killed, have been credited by the Jury, who have found the Prisoner guilty, in manner and form as he stood charged in the in- dictment. It is their verdict, and on circumstances upon which they were the sole judges. r, - . . • Jlfr. Justice Bowen. — In stating there was no evidence but the Pri- soner's own confession, I think, you appear to have forgotten the evi- dence of the two voyageurs, Faille and La Pointe, as well as the circum- stance of the clothes being in the canoe and the division of the biitin. Mr. Stuart. — ^The first question before the Court, appears to me to be, can a new trial be granted in a case of felony? or, to meet more di- 231 rectly Mr. SolicUor-GeneraPs objection, the enquiry is ; ought the Court to grant a new trial in the case of "liarlcs Dc Reinhard ? Upon th« former branch of the inquiry can a new trial be granted in a case of feU ony ? I find <^ dictum of uiy Lord Keijnon, that it could not, but I find filso a later dcciMon than that of my Lord Kenyon, in £a tegrity, error may creep in, mis'lirection may be given, or otiiisgloni may be made, by the best and most enlightened judged, whilst, by a pe- culiar anomaly, in criminal cases, no counsel is heard on behalf of a pri- toner. All that the Jury hear, for the purpose of assisting their judg. mehts, either on the law or the facts of the case, is the judge's expoM> tion of the one and the other. And as the best and most enlightened may err, the door ought to be opened wider, rather than closed, to the introdiiction of the only remedy that can be applied to the consequences of such error, omission, or mindircction. I call upon the learned Crown oifficers, in opposing this doctrine, to shew me the principles upon which their opposition is founded^ I call upon them, after I have shewn that the point is as yet unsettled in England, to substantiate by argtiment, in the absence of authority, the (to my mind,) strange proposition, thai a remedy shall not be applied to an error affecting the life of a man, whilst they would extend it to every case of mere property. I (fkll up< on them to say, why the mouth that has been closed during a prisoner's trial for his life, (by, as I said before, a peculiar anomaly, which does not allow counsel to be heard on his behalf,) is to remain sealed after his conviction, whatever may have been the error, omission, or misdi- rection that occasioned it. I contend that the entertaining a motion for a new trial in all cases, criminal as well as civil, is in the discretion of the Court, who will grant or refuse it, as apears to them most consonant to the ends of justice, which I take to be the governing principle of all judicial proceedings. ' JIfr. Jmtiee Botren.-^Admitting your principle for a moment to be correct, what would you gain ? If prisoners are to be entitled to a new- trial, must not the Crown be equally so, and where is the system of new trials to end? Mr. Stiuirt.—l beg the Courtis pardon, but it is agreed on all hands that a verdict of acquittal ends proceedings. I might refer to innumc table authorities, that a verdict of acquittal cannot be disturbed, upon the equitable and humane majtim, that ** a man shall not be brought *' into danger for one and the same offence more than once.'' The dis- tinction is stated in Viner — word Trial : 1* is found in the second sec tion, under the general head of, '* new trial grarUed^ in what eases, in res- " peet of the action being criminaV^ " A new trial will not be granted *' where the defendant is acquitted in criminal and capital cases, but •• otherwise it is, where he is convicted" — Liev. 9. Mich. 12 Car. II. B. B. Anon. — Indeed there is a case of a defendant's being dischsirged of a verdict, and receiving a new trial, as late as 26th Elizabeth. Chief Justice Sewell.—In the case you refer to, in the time of Elira- beth, the new trial was granted before the recording of the verdict, in .It.',:.- 9.^S ncli a case probably the same thing would be done again. Upon a dis- agreement of the Jury, the defendant was asked it' iie would be discharg- ed of the Jury and their verdict, and he agreed to it ; he was tried by another Jury upon the same indictment, was found guilty, and had judgment to be han^d. It is ilfanse/rs case, I presume, that you re- ferred to. , • . . ?^^ ? Mr. Shiart. — It was. Sir, • Chiff Justice Sewell. — Then it is one of another kind, as a new tria! was granted there, before the verdict was recorded. The verdict of the .lury has been recorded in this case, and the (question is how can it be set aside ? Mr. Stuart. — There is another :n Hawkins, where a new trial was j^ranted after the verdict had been recorded. I cannot, at this moment, refer to the page of Hawkins, but I will send it to your Honours. iJhief Justice Sewell. — Do, if you please, for I do not recollect it. Mr. Stuart, — I will. I speak with confidence on the subject, as I was looking at it this morning. And the reason of this distinction appears to be that the King, in whose name all criminal prosecutions are conducted, is not interested in the indictment farther than the maintenance of law and right concerns him, and that, if twelve of his subjects say, upon their oaths, thitt his peace, crown and dignity, have not been infringed, it i? reasonable to suppose that he will be satisfied with such finding, and this principle has been recognized and acted upon when new trials have been moved for, in cases of acquittal in misdemeanors, Sd Salk. 362. pi. 4, Having thus cleared away the difficulty raised by my learned friend, the Solicitor-General, upon the question of competency, we enter at once upon the motion to set aside the verdict of conviction, and grant a new trial in the case of Charles De litinhard. It was necessary thus to clear the way to this motion, because it is only btfort a tinotion in arrest of judgment that it can be heard. The rule is '* one shall not move for a ^' new trial after motion in arrest of judgment ; but, after motion for a " new trial, he may move in arrest of judgment." In support of the motion which we thfts submit, I have the honour to contend Chief Justice Siwell.— -Had you not better, Mr. Stuart, combine your objectious, that is, state all you have to offer on any particular point, whether it may refer to the evidence or to the direction of the Court. It will have a tendency to abridge the argtiment, and save time, without excluding any thing you may be desirous of offering. Mr. Stuart.— I will adopt that course.— On the motion to set asidt the verdict, and for a new trial, I shall contend, that the paper purport- ing to be the confession of the Prisoner, received as evidence on his trial, was a confession taken, under the statute, before a magistrate, as ap- :■ . i.i ii; if! ■Ml II: { n ■ ^$ m i ■ ■: !^ (.; i If AM 234 V' .% peari fKom the very faee of it, and was irregularly receivecl at a confer •ion at comman law. This confession, if not used as a confession under the statute, ought not to have been permitted to be used at all. If this were otherwise, the rule that proof of the examinations of prisoners must be made, either by the justice of the peace, or the clerk, would be nuga- tory. It might at all times, be evaded by producing the confession, as a confession at common law. Had the best evidence been produced, cither regarding it as a confession at common law, or under the statute, still the eft'ect would have been the same to the Prisoner, as the same in* dividual would liave been produced, the Earl of Selkirk, In truth the rule above adverted to is but a corollary of that general rule that the best evidence the nature of the case affords, is the only evidence that can be received. There can be no question that, had this paper been in the hand-writing of Lord Selkirk, or hisclei'k, it would not have been receiv* ed, unless they were here to prove it, and the circumstance of its being in the Prisoner's writing, does not alter the argument at all ; as no greater 4egal certainty is given to it. The acts of Philip and Mary do not re- quire that the magistrate should take the examination in his own writ- ing, but that the examination shall be put into writing, and signed by the magistrate, and, upon the trial, shall be proved by him, or his clerk. An additional reason might be urged from the general necessity of prov- ing that at the time of making the confession the person was free, or if Noi, that the restraint imposed was a legal restraint, and that no im- proper inducements were held out to obtain the confession, and who is to prove this but the magistrate ? If the confession is to be received at common law, still upon the principle of having the best evidence, the necessity presents itself again, who can best prove that no promise or menace was made use of to induce a confession ? Certainly the an- swer is immediately, he to whom the confession was made, and apply- ing this reasoning to the present case, either as a confession at common law, or one under the statute, it was necessary to have produced the Earl of Selkirk. But I go a step farther, and leaving the general rule, I say that, in the present case, it was specially requisite, from the very extraordinary nature of the circumstances which are connected with it, that Lord Selkirk should have been brought here by the Crown, if he did not come here himself as a magistrate with his returns, &c.— though it might have well been expected that his own anxiety, in a case where personally he was so much, and his own honour so deeply, concerned, would have outstripped the tardiness of a legal obligation to appear— for, at the time of making this confession, De Reinhard was under restraint, a restraint imposed by my Lord Selkirk, the which, if not imposed by magisterial autliority, roust necessarily have been an illegal duress, and 235 had been so from the 19f/( of October, a period of ten days, the confession being delivered to Lord Selkirk upon the 28th, and three or four days after he was set at liberty, a very strong circumstance certainlyt and one upon which had my Lord Selkirk been here, as it was his duty to have been, and as his own feeling, I sliould have imagined, would have urged him to have been, and in that witnesses box, he miglit, (for he on- ly could,) have given us some information. At present, it only can be mentioned as a circumstance peculiar to the case itself, and one which I greatly regret that, in deviating from the general, and as I have always Ibought the unalterable, legal rules that confessions taken before a ma- gistrate must be proved by the magistrate, and that upon al) matters, whe- ther civil or criminal, at common law, the best evidence is required, we are left in the dark about, exposed to all the suspicions which will suggest themselves as to the circumstances, which first led to the imprisonment of this individual, and after be had confessed himsei. ^o be guilty of a murder, the circumstances which occasioned — what ? his being confined more closely ? guarded more carefully ? No ; — but what those circum- stances were which, after this confession, occasioned bis being set at li- berty. All this information, so important, not only to the Prisoner, but to the cause of substantial, impartial justice, we tire shut out from, by a course which, we contend, exposed the Jury to the influence of that which, although allowed to be given in evidence, was not legally so.— Lord Selkirk is within the jurisdiction of this Court, and could have given better evidence than Doctor Allan. This part of my argument I conclude by saying, that, in our judgments, the proof which the Court received of the paper-writing was not according to law, there is, how- ever, one point more, connected with tiie confession, which I have o- mitted noticing, I beg, before proceeding to the neKt objection I have to submit to the Court, that I may be permitted to advert to it. It is (hat the Crown, having offered a paper-writing, and succeeded in get- ting it admitted as good evidence against the Prisoner, the whole ought to have been admitted, the entire paper should have been received, the entire paper should have been given to the Jury, we argue that it was not in the power of the Crown, after producing a paper, to sever it. — We contend, that all must go, or rather should have gone, to the Jury, or that none should have been handed over to them. We further sub- mit, that it is no answer to say, that the confession was received at com- mon law, and therefore the certificate of the magistrate was unnecessary for the Jury. We say, and feel ourselves warranted in so doing, that all that was on the paper was proper evidence to go to the Jury, if any pnrt of it was entitled to find its way te them, and that it was not com- petent to the Court to enquire what the contents of any part of it might it;'. . k t !-^1 t ' i : ^^■Vl '*vl ' * - I ' * i,f • it i'li i ; til 1 ''.ilK m J-' M'i 2:36 ! ■, I- :f - :! ■: {be; if a discovery was made that a part was a magistrate's certificate, that it contained his examination of a person making a confession, or that it was the confession itself, still the certificate ought, as forming u part of the paper produced, to have gone to the Jury. I will put a case, suppose this certificate stated, that under his examination the prisoner had been contumacious, and had refused to answer certain questions, and thereupon had been stretched upon a racic, and told he should suffer Its pains unless he answered the ((uestions put to him, and being relieved, he then wrote his confession ; on his trial it is made evidence at com- mon law against him, being proved by some bye-standcr, I should ask, ought not such a certificate to go to tjie Jury ? Would jt be any answer to say, the paper the prisoner wrote and delivered to the magistrate is received at common law, and therefore the magistrate*! certificate is not % required, it is not evidence ? No, certainly not ; nor, as we contend, is it in this case. It would have been proved and received as evidence, had the confession been made so under the statutes of Philip and JUdry, and though received as a paper-writing at common law, ought not, ac- cording to our view of the subject, to have been kept from the Jury. The second point which I shall have the honour to present is one that, of course, I offer with great diffidence. It is that this honourable Court, in its charge to the Jury, misdirected it upon two points ; first, as to tie limits of his Majcsty^s province of Upper Canada, and also to the inter- pretation of the western boundary, as settled by the act of 1774, in its Explanation or construction of the term northward, which your Honoui directed the Jury, must be considered to mean due north. In renewing, to a certain extent, that which your Honours might consider as already decided, 1 beg to mention that it is not my intention to touch upon the former part of the objection, because it was argued to its full exteht, and your Honours have pronounced your decision upon it, but the latter ob- jection was by some means omitted. It will be in the recollection of your Honours that, on that occasion, we contended that the province of Upper Canada exceeded in its limits the extent which bounded the an- tient province of Quebec. That point, may it please the Court, having been discussed, and determined, we do not propose to renew the argu- ment. But that which it is my intention to address the Court upon, is the construction given to a part of the preamble to the act, usually cal- led the Quebec act. I will read a part of these boundaries, so as to in- troduce the point I intend to argue fairly to the Court : after tracing the line to the northwest angle of the late province'of Pennsylvania it goes on to describe its course thus, ** and thence along the western boundary of " the said province until it strikes the river Ohio ; and along the bank oi ** said river westward to the banks of the Missisiipjn^ and northward t^ 237 •' the sonlhern boundary oi the Icn-itory granted to the mcrdmnts adven. •» tiirers of Eni;!and traJing to Hadso^a Bay, kc. &:c.". Upon this portion of the boundary it is that I propose to found my obKervations, and the objection which, u itli great deference certainly, I state to the opinion which your Honours hold is, that northward, means to continue along the banks of the Mississippi, according to the course of that river* which is in a northicard direction, though not due north. A construction warranted by law and usage and more consistent with the intentions of the act as expressed therein. Chiif Justice Sewell.—Thdit, Mr. Stuart, is the same point which we have already decided. We heard you and Mr. ValUcre, in solemn ar- gument upon all the points connected with the boundaries, both in rela- tion to the Upper province and the American line, and gave you our solemn decision upon them. We have followed it up by taking the ver- dict of the Jury upon tliat solemn decision. That verdict declares that the offence was committed in " the Indian territories, or parts of Jme* " rica, nol within Ihe Vvnlts of cither of the provinces of Upper or '• LoiccT (Juriaiia,ur ui'any civ!;! govrrnment of the United lilates oi Ame- '' rica," and the Jury have so found, aftnr we had charged them on the law of the subject, and that such as vye laid Ihem down were to be considered by them the boundaries of his Majesty's provinces of Upper and Lower Canada in relation to each other, and to the United States ot America' We cannot alter that ; it must be to another quarter that you must make your appeal, to that quarter where this case must finally end ; indeed, after having given our decision, you ought not to raise the ques- tion. The .Jury, under our directions as to the law, have decided the fact, with which we did not meddle, having no authority to do so. They have decided that, according to our defining of the boundaries of Upper Canada, and the line of separation between his Majesty's pos- sessions and the late provinces, — the Dalles are in the Indian territory, or parts of America, not within ilio province of Upper or Lower Cana- da, or of any civil government of the United Slates of America. If we have done v/rong, you know how to remedy the error, and you may depend that every opportunity will be given to enable you to avail yourselves of the mercy of the Crown, but we cannot, without legal grounds are shewn to us, disturb their verdict. We cannot hear you upon the point oi jurisdiction again, the question being, as far as lies in us, already settled. '¥ Mr. Justice Bowen expressed Ids entiri concurrence with the Chief Jus- ticc, and added, that he had a long time sat with sensations of regret to hear the discussion on the former point; that its admission was greatly at vari- ance with his own sense ofpropritly although he had not interfered. %* fix's* ; 1 ' i ' ■■ ■ , 1 1 J \i 'i ! 'li ^ ." i ■ ' • ^1 •J I'l.'t ■ ^; I ' if ! > Pt : ' .'li-i .■ J if ! I ' « , I ■! s;1 vl I ,1' ft' ''ill t,'' \h £38 m ,.* It m .'■ s ' !':^fS'^ V ; Mr. */Mar/.— If that is the opinion of the Court, I ghall not urge It farther, but proceed at once to the third point, which I propose to adduce in lupport of my motion for a new trial, viz:— that no legal evidence has been produced to the Jury of the actual death of Owtn Ktveny. Chief Justice SewelL—l cannot hear you, Mr. Stuart, upon that point either. You Icnow that it has been e«iually solemnly decided, and by the same authority. It was a fact, and solely with the Jury, and they have decided that the death has actually occurred. Their verdict so. lemnly declares to the Court and to the world, that Owen Keveny was murdered, and we cannot allow you to say, that he was not, and hear you argue upon the assertion. You know we cannot — tlien why at- tempt it ? ■ . u Mr* Stuart. — Then I shall proceed immediately to the motion in ar. rest of judgment. I propo!«e to argue, first. That this Court has no power to try any olfence whatever committed in the Indian territories ; and, secondly, that if it has a jurisdiction, it is a jurisdiction confineil \n 4Via f ■•tnl nf mikilfmpnnars nnd ia inran«Wo nf trylnrr anv/e/onj'. Hi,- fore I enter upon the question itself, I must look at tlie aot upon which this indictment is founded, and when I so look at it, I find it to be " an *^ act for extending the jurisdiction of the Courts of Justice in the pro- ** vince of Lower Canada and Upper Canada to the trial and puniiihment *' of persons guilty of crimes and olTences within certain parts of North " America adjoining to the said provinces." My object in reading it$ title is to shew, from tlie very nature of the act, that its constructioti ought to be most rigorous and strict, seeing that it trenches upon one of the fundamental principles of tlie common law of England, viz. the association of locality with jurisdiction and trial. This statute, it will at once be remarked, gives jurisdiction to try crimes and offences com? mitted out o( Loiver Canada to the Courts of this province, thus giving jurisdiction where there is no locality, and not only does this act of a British parliament assume the right of so doing as far as England her- self may be interested therein, but also for the whole of Europe, as far as British subjects are concerned. Again look at the nature and htate of the country ; it is Indian territory, and it furninlies a strong additional reason for calling for the most strict and rigorous construction of such an act. Look at this country over which this act assumes power and jurisdiction, and we find it a country with no government at all, (that if, no civilized government) still in possession of the wild natives, the aborigines of the soil, who consider themselves the lords of it, and it may be questioned whether the power of legislation over it actually exists as a right. The right of legislation assumed by England^ I say, may well 239 be doubtea. How diil she obtain it ? There «re only two ways, I con- tend, by which the right of legialation cun be attained by any nation, vi«. by occupancy, or by conquest ; and by neither of them did England attain the riglU of legislation for the Jtidiun territory. The fact of non- orcupancy h matter of notoriety ; I would ask then from whom did 9h« flonquer it ? not from the Frenc/i, for they never held an advtr$e ppi- wssion of it, an adverse posacfsjon has never been held by England, for the never had any occupancy, tio adverse possession was ever held by any European nation, no adverse occupancy has been maintained by anjf nation but the Untied Slalcs. They have been at war w ith some of th« Indian nations, and tijey have held, and do Htill hold, an advtut pos- session of some of their lands, but they are the only nation who have acquired Indian lands by a course which the law of nations acknowledget as conferring the right of legislation. It might have been supposed that the French had a poh8P<>fiion or occupancy, because some of their traders visited certain parts of this wild country ; but their traders never dared to assume an adverse occupancy. They had their trading posts ; how ? by sufferance. They explored iao »vl!dernc>>8 ; how P under {he protection of its native lords, but they never dared to think of an adverse postesiion. It might, in the same way, be supposed that England had maintained a possession of this country, because she continued the trade which had been carried on by tlie French, and increased it, but she had not there* fore any possession of the country, or any portion of it, gained from the natives by conquest, and retained by actual occupaucy. What occu- pancy has England, or what occupancy had France ever in this couo- tliis country ? none whatever. They visited it as traders, and were permitted to traffic, and erect trading-posts, but the French and the British have no more real occupancy or possession thereby, than they have of Smyrna or Constantinople, because they have established facto- ries there. The ground I take, and the position I maintain, is this, that the British have only a precarious possession of any part of this immense and unexplored wilderness, a possession similar to that enjoyed by the French traders, by permission from the cAorigines, not acquired by con- quest, and therefore incapable of being transferred or ceded, nor indeed was it ever attempted to be ceded to the British government ; for the possession of the Frentli was, at its utmost extent, a permission to erect trading-posts. Mr. Justice Bmcen.—'Do you intend to say, that it wa? not ceded to England at the treaty of Par« of 1763, or that the Court of Fra«c« liad no right to cede it ? as according to your argument they could not legislate for it, having no occupancy . in point of fact, and never haviog Wquircd the riglU of occupancy by conquest. \ it i % f ■ Pi 'I k "H, r ■'jfl 2lO •if .. Jllr. Stuart."! do certainly ; but I nhill come to that point prrwniljr. I beg leave now to contend that this Court bns no jnriFiUction ^iven to it by the statute ot the i:)d Geo. III. enp. 1^38. 'I'lie title of Iho art I have juDt read, and its object '\h no well known that it is unncccMary to read the preamble and first enactment, wherein It is set forth ut length. It recites that great crimes and olTenccs, committed in the »>nid Iniliun Territories, have gone, and may hereafter ^o, unpunished, and grtutly increase, for the remedy whereof, this act declares tliut all offences com* mitted in the said Indian country, not cogniTiable by any juriMliclion whatever, shall be, and be deemed to be, utfenccs of the same nature, and shall be tried in the same manner, and subject to the same pnniKb* ment, as if the same had been connniltcd within the province of Ijower or Upper Canada ; tlie ucond clause of the act, authorises the Governor, Lieutenant Governor, or person administering the government fur the time being, to empower persons to act as civil magtHtrates, and juFtice* of the peace, in the Indian country, and makes it lawful for any body to apprehend, and take before any person commissioned as aforesaid, or to convey, or cause to be conveyed, nny person guilty of a crime or of* fence, to the province of Lower Cuiiuda, and there to deliver him iiilo wfecustodv, for the purpose of being dealt with according to Inw.— The third clause demands very porticninr attention, as it providc« fur tlie trial of the persons so brought down. The moment we have read this clause, it strikes me that it can no lono^er remain a que^'tion, tlint thit Court does not possess any jurisdicti^i over the Indian Territory ; the only act which extends the jurisdiction of the Courts here to take cognizance of oft'ences committed there, is the one I Iiold in my hand, ▼17.. — 43d Geo. III. 1.S0, and this act does not give any power to this Court. I will read its own declaration of tho Courts to which it dele* gates these new and extensive povvere, [ilir. Hlnart read stctiun Sd. and tontinued:] Here then we see, that the jurisdiction of this province was extended by this act, to the trial of persons committing offences in the Indian Territories " in the Courts where crimes and offences of tho *' like nature are usually tried, and where tho same would have been ** tried, if such crime or offence had been committed within the limits , " of the provinwe." The natural, the obvious, and, in fact, the only, enquiry, which this delegation of increased jurisdiction, taken in con* nection with this case, suggests, is, which are " the Courts in which of- " fences of the like nature are usually tried P" I answer, and contend that the answer is correct, they are the Courts of King's Bench ; tliey are the Courts of KingS Bench of the three districts, into which this pro- vince is divided, to wit, Quebec, Montreal, and Three Rivers, and that the increased jurisdiction is given only to them. I am perfectly awari 211 tlittt il tuny l>e trnkti, may not, and du not, Courti o( Oyer and Termin' tr tnko cugniRunce of crimes and oRoiicch ? at oncA I answer, they may io it, and they do take cogu'uance of them, but I auk, is a Coart of Oyer and Terminer the Court wherein crimOB and offences of this nature are u$ually tried in this province ? because it is only to the Courti where Climes and otruuces of the like nature, when committed therein, are u- tually tried, tliat by this act the jurisdiction to take cognizance of crimes and oifeur.es is extended. The uniwer, I think, must be, no, they are not. Again, 1 might be peroHltcd to remark, thut the words of the aot uro, the Courts where such uffcnccs are usually tried, and must there* tore, ex vteetsiilate rei, mean Courts already cstablithcd, not to be eeta- blu>hed, and where chivll we look (or Courts which, at that time, usually liiml crimes and qifenccs ? We ntu^t look to the Courts of King*t Bench 9f the three liulricti f for it cannot, I sltould think, be contended that a Court not in exialence, not (if I might use the expression,) 6orn, not yet bmight to life, could be that uiWfil Court, wherein cITenCes of a like nature, committed within the provii '.e, would have ! pen tried. The Courts of KiyigU jBem/i, bciug the on'inary ^ud est xblit-iicd Courts of the proviuce, must have been the Courts conten;ijiatc^ by the statute, and inoiit correcMy dcfignated by the framjrs there if, " the Courts tvhere " oifHuces are mually tried.'' A Court oCOyer and T-nr ir is a Court o(aday, and cannot be the Court intended ; the Court ; i-lKing's 'Hench bie perpetual, and must therefore be the usual oO>' ts. Tliere is ur jther reason which completely excludes the idea of a Court of Oyer and Ter- miner being intended, but, the point has been argued with so much force by my learned friend, Mr. ya,v/elsoii, that I shall burely mention it, as a concluding oiijection, which! olTer to the act under coa«ideration being construed as extending th^ jurisdiction of theXouer province to the tri- al of any crime or pflEence committed in the Indian Territory by a Court ofO^er and.!7ermmer. The act in question, when .speaking of Xouer Canada invariably says, //le Courts; the ofTeu'lers are to be prosecuted and tried *' inJAe.C'our/s ollMvr Canada, in which crimes or uffenees '*ofa like nature are usually ti; <', and where they would have been " tried, iic, &c." — what are these Courts? they roust be, I again say, those of the KiHg''s Benc/i, f. r vrc know no other Courts wherein crimes and offences are usaaltu f vi^^d. Again, '* and it shall also be lawful for " \X\(i judges, and other qfficerf,o( the said Courts, to issue subpoenas, &c." vh»t Courts b I those of the King's Bench in this, province, meet this »2Hot!oii, in a caie founded upon a statute which, I repeat, in giving juriMiction to these provinces, trenches upon the very foundations and fiindamental principles of the common law of Fngland, namely, the b*> sociation of locality and jurisdiction ; the Crown officers, in their indiet- mrnt, throw a^ide every rule which has heretofore gnided our practice, or, when neglected, taught us, by the consequences, the necessity of being guided by tkem, and contMt themselves with simply averring that this nameless place is within the juri«sdiction of this Court. In Shawl's case the renue is laid in a parish at Lovdon or Middkiex. Mr. Juslkt Bowfn. — I'hen you contend, 1 suppose, that the indict* ment »hooId have stated that he the suid Charles De Reinhard, being a svbjeet of bis Majesty, and late of a certain place in the Hiver Witmipie, not known by any name, and not comprised in any parish or county, but situated in the Indian l^rrHories, or parts of America, not within the limits of either of the provinces of Upper or Iiower Canada, or of any civil government of the United filales of America, but within bii Majesty's dominions, and the jurisdiction this Court, scilicet, in the pa- rish of Quthf c, in the eonnly of Ctuebrc, in the district of Quebec, which being ne;;utived, would have made the indictment void. Mr. Stuart. — No, your Honour, I only contends, that it should have charged, in addition to the words contained in the indictmi'nt, that the place was in the King*8 dominions. It might have said the Dulles, or at Ked Jliver, or any other place. Mr. Justice Bowen. — You argue tliat the oniis«ion of the reHicet it fatal, that it ought to have been laid as committed at a place w hich in entra-paroehial, situated in the Jnrfion TerriUnies, but within his Ma- jesty** dominions, as to wit, at Red River. Mr. Stuart.— Ytti, I do. The Crown officers have very wisely laid it as being contra pacem domini rej^is — BoUeitor-Qeneral.'-l beg to mention to the Court, that the omission of the scilieet, is not the rcfult of any oversight on odr part, but that, when preparing the indictment, It was considered by us to be mere sur- ftluit^e, and therefore rejected as unnecessary. We charge the oflRenot to be ngainn the peace of our Lord the King, his crown and dignity, ai fufflcient. I 1 t I .-t'f < ' I ^ 1 1 ' u .. !.i 246 •f 1 i . 4,.'* i :! : v\:l ) •If i-\ ■■ ■' 1 Mr. Sttutrt.—ThtA is the point upon which we are at issue, yon say the offence was contra paeem dumini regis^ eoronam et dignitatem ejus^ and we say he had no pax at all to keep there, and this answer I make to shew that the averment, that it was in the King^t dominions, was ab< solutely necessary. Had they done that, they would, the moment it was established, have shut out all argument on the question of his being a subject, because, if he was in the King's dominions, he owed the King a temporary allegiance, but, as we say he is not a subject, he owes no natural allegiance, and from accidental circumstances alone can it be re« quired from him, and therefore the obligation should be averred, and should be proved. However much I might be disposed to doubt the right of England, (or any other nation,) to legislate for even her own subjects in foreign states, yet it can not, I imagine, be contended, if fhe does possess that right, in reference to those who owe her a natural allegiance, that she can extend it to all who, from circumstances, owe her a temporary allegiance only. That being the case, I say, upon ths Crown's own shewing, it is not evident that temporary allegiance wus due from the Prisoner, over whom the King possesses no natural autho- rity, he being a forever, and on its own shewing, there is no proof that, instead of this offence having been committed contra pacem domini regis, it has not been committed contra pacem United States. The ar- gument which I purpose to adduce to the Court, branches itself into two distinct propositions, upon each of which I shall briefly remark, and I hope, satisfy the Court that these omissions are fatal to the in- dictment. I contend, first then, may it please the Court, as a broad and marked position, that the British legislature possess no right to le- gislate for a country still in the possession of the Indians, and secondly, that, admitting even that they have the power of legislating for their own subjects any where, in a foreign country it is only for them that they can do so ; upon both these points I argue that the ii^dictiqent is radi- •ally defective. "^ Mr. Justice Bowen. — Have you considered what will be the effect of the fourth clause, which makes some provision upon that subject. It enacts, that if any " offence charged and prosecuted under this act shall " be proved to have been committed by any person or persons not being " subject or subjects,*' and so on. When must this be proved ? necessa- rily it must be upon the trial, because, upon such proof being exhibited, the Court is directed forthwith to " apquit such person or personit not *' being such subject or subjects as aforesaid, of such charge." Who then is to prove this ? assuredly, the Prisoner, not only because he is the most interested in proving it, but because he is the best able to do so. The Crown have no means of knowing his birth, parentage, and education, 247 ftnd ought not to be called upon to prove it. He himself knew his birth place, as well as all the circumotances necessary to secure his acqnitUI, if improperly indicted, and he should have proved them, so as to have entitled him to have his discharge. It was Aw duty, not that of tht Crown, Mr. S/iiar/.— Your Honour^s observation completely confirms my argument, that the omission of the averment is fatal to the indictment. From the manner in whicbthis indictment is drawn up, we should not have been allowed to deny our being a subject, and to go into evidence to substanliate such denial. It would not have been competent to us to do so, because it was not in issue between us and the Crown. This answer was not pul in upon the trial, because we should not have been allowed to go into evidence upon it, inasmuch as the question under trial was, guillif or not guilly, not, subject or no subject. We could not, un- der the genera/ plea of not guilty,— ai plea which (from the manner that the indictment was drawn up in) constituted the only plea we could make — I say, we could not, under that plea, go into evidence of Dt Rtinluird not being a subject, although the moment we established that fact, he would, under the act, have been entitled to his acquittal, ^• cause it was not averred upon the indictment that lie was so, and conse* quently it formed no part of the issue in contest between the Crowa and the Prisoner. The suggestion of Mr. Justice Bowm, abundantly strengthens the argument which' I have had the honour to submit in support of the position that the indictment is defective, from its not averring that we were a subject, because, had it been done, we should have negat'ced the averment, and have been entitled to an acquittal—^ Chief Justice SewtU. — Not exactly so, Mr. Stuart, according to my idea; there is another difficulty which you would have to surmount: when you had shewn incontrovertibly that De ReinJuird was not a sub- ject, that would only be half the point which it would be necessary for you to establish, so as to entitle the Prisoner to his acquittal, under the clause to which my brother Bowen has so correctly (and advantageously too,) drawn your attention. I will read you (for it is very short) the whole clause, so that you may clearly comprehend it, verbatim et lilera» tim >-" 4th. Provided always, and be it further enacted, that if any " crime or offence, charged and prosecuted this act, shall be proved to •' have been committed by any person or persons not being a subject ot " subjects of his Majesty, and also within the limits of any colony, settle* " ment, or territory^ belonging to any European states, the Court before " which such prosecution shall be had, shall forthwilh acquit such person " or persons, not being such subject or subjects as aforesaid, of such " charge.*' You will observe that this clause doc« not put it into the I Pfl :j\ '■ til 2M i m m- ! >'f r I. er 6f the Covrt ** to 'acquit him forthwith,'' even if it ihouid b« al- lowed that he paved hknself to be a /orei'giter, betnuit, beymid mtkin^ ft appear that he is not a iuftjerl, go on, and also shew the offence to have been eommitted ** Within the ttniits of any cohiny, srttlcinent, or *' territory, belonging to any European states," before it is in the power ef the Coart hefobe whom the trial uas faoldiog, to say that the Priso- aernrost be forthwith «c4fakted of sach charge. Tbeprovitiion may Iwve 'been dictated by some such euggenUon as this ; relative to beint; a iMtilraUbovn subject, it can be known only to the PrUoner with cer- tainty, the CVotonhaa no opportunity of being acquainted therewith. — The CrowD might say thus, / do nut know, whether you are a natural born sobjebt, ori»Aere the offence wasoommitted; but vou, the Priso- ner, If jTOU are not a natural-born subject (which ire cannot know, or if you yhew, we cannot rebut, as we cannot prove a negative,) must go /(tr/Aer, and, to be entitled to demand your acquittal, must prove that It ivas'within the limits of any colony, settlement, or territory, be- ''Idnging to any Enropean states, as well as that you are not such istibject >M this act gives the power to try for any crime or offence committed any where in the Indian territories. 1 have stated that which aippearii • difficulty whieb you have not adverted to, that we may hear you upon but we are contending that, ujron the fate of this indictment, that which ONgM to have been tivenvd is omitted, and that such omi«ion, is a/atal . omission, and ought to arre.t/ tlie judgment of the Court. In tiiankinj; yoarHoAour for your observations,'! do it because they most forcibly litaniflBst that the Prisoner hat been deprived of the opportunity of shew- ing' thai whieh, when proved, must have secured his acquittal. The tmflt«fMeii/'does not aver that he tras a subject, he could not, therefore, be pertiiitted to prove the con^rarj/, because this aniiver would immcdi- ' ately have been given by my learned friends, " we do not aver him to be ** a subjeiBli** I say that they ought to have so averred him,' because, if hewas not a subject, they had no right to try him. Theimoroent tha^ he was proved not a subject, the prosecution must slop, nor would the Gonrt have a right, I take It, to try even a subject, if> theofifonce was committed ont of the King's dominions. ■ ,> '-.luu h • «y. ' ' Mr.Ju$tite Boi0«n.-*Perhaps that is not quite so clear ; and if you -attentively read the 4th clause, I think you will And that his not hein( U9 H subject 18 not suflRcieni forthwith to stop a trial, fcut, as waa pointed out by the Chief Justice, he must go farther. By the 5th clause you ^f!\l\ find the direct reverse of your last position t6 lie law. It Is in these last words, " provided nevertheless, that it shall and niay be lawful for « such Court to proceed in the trial of any person being a tiAjeet or tub- ";«/5 of his Majesty, who shall bfe charged with tbe same or any other » oflTence, not withstanding such offence shall appeal* to litove been com- "mitted within the limits of anj^cb/ony, scfllment, ortertitory, belimg^ " ing to any Ewropeun state as aforesaid.'* Here you see that provision is especially ihade for the trial of any subject, notwithWrtidIng his offence riiall appear to have been committed within the limits of any colony settlement, or territory, belongilirg to any European state. Mr. Stuart.— 'The principle I advert to as completely sustaining the argument I have submitted, is the great principle of public law, that no nation can legislate for the subjects of another, unless whilst they art receiving, in the territory of that nation, the protection of its laws ," and that allegiance aud protection are reciprocal obligations; thus I say that the British parliament co'uld not, by this act of the 43d, legislate fi)r a subject of the United States, in the Indian territory belobging to the United States. I do not know tliat it could even for its own naturat bom subjects, but that must be the utmost length to which it could carry the principle of perpetual allegiance. Then, I say, as the face of (his indictment does not aver that the offence was committed in the King's dominions, that the Prisoner is not bound by this act if he i!s K foreigner, (as fte is,) and owes no natural allegiance, because the obli- gation o( allegiance is inseparable fromthe benefit of protection. Where the latter is not received, the former is not owed, and ought not to be demanded. This is a proposition that is true in the most unlimited sense. The 5th clause of the act, I am aware, produces a limitation of this principle, but what I speak of is that it has no limitation by the acknowledged public principles of internotionaMaw. It would' be ab- surd to talk of the imperial parliament legijilating for CAtna ; then what right has it to legislate for the territory of any other power? Now, if for an offence committed in China, the ofiender is ever tried in London^ it can only be where that offender is a natural born subject of the British Crown, and therefore incapable of ever divesting himself of the obliga- gation of allegiance. My argument embraces two or three points, and; I't. locality; it is absolutely necessary that the indictment should not only aver that the offence was not committed within the limits of the United States, but also, that it was committed within the King's do- minions. I «'hall pre< sently have occasion more fully to shcWt) completely an independent nation. I remark, that one of the persons included in this indictment is a Savage, and he stands indicted for an offence committed on his own soil, the soil of which he is one of the lords, as being one of the abori^ gines, in a Court of a country foreign to him, and to which he owes no allegiance, and of whose people he knows nothing, but that be permit* ted them to trade in his territory. I would ask of my learned friends, if that individual was tried, convicted, and executed, whether it would not, according to principles of national law, be a just case of war? I would ask, whether, upon aU the acknowledged principles of nutional intercourse, which are usually known among civilized states, under the appellation of the law of nations, thai would not be the case ? and, in their absence, I would ask, whether they, knowing no civilized rule for their government, would not be entitled to blood for blood ? Whe- ther their language might not justifiably be, *' You have taken the blood of our brother, and wc will cause the blood of your brother to be shed to atone for it." That this territory is theirs is evident from the act itself which calls it Indian territory. It is not called British territory ; in no part of the act is it denominated British territory, for the most ob- vious of all reasons, because it ncter was, in point of fact, in our pos- session, it never was conquered by us, and therefore could not be called other than Indian territory, because, neither by conquest nor occupancy, had it ever become ours. Relative to a consideration which very natu- rally ariiies out of this part of the argument, I am aware that it may be said that nations are satisfied with very slight proofs of occupancy- The erection, for instance, of a flag-post at the time a real, or imogiuai y 251 discovery (and perhaps more frequently the latter) of any place, appears to be made. As a part of the international law of the kingdoms of Ew rope, it may be good, and ought on them to be binding, because the ob- ligations imposed by the law of nations bring with them benefits in which those civilized nations of tlie earth participate, but it is not nece s^nry or imperative that the Indian tribes should agree to this convention, or that thry phould allow that the erection of a pole or staff should be a confiscation of their territory. No ; their lands, like ours, are defended by war, and the only reason, perhaps, that we have not practically known Ibis to be the case is, that we never attempted an occupancy.— We have wished to trade with them, and have been permitted, Hnn- dreds of miles from each other, we have been permitted to build and establish trading-posts, but does tliat give us any right tf/dssiiMie a lord- ship over the soil, or make us the oipner* of the ttrritvry? No, cer- tainly not, we have no title to it whatever ; if we have, let the learned Crown officers produce it, that we may know upon what it is founded. I am not so visionary as to say to, or lo expect, the Crown officers to produce title deeds, as if it was merely an estate, but I do expect them to shew mo a government de facto, or, at least, a possession de facto, adverse to that of the Indians, but they cannot do that, for the Indians have always had the possession defaeto, and have always had a govern- ment de facto. Again, I remark, that they manifest in their intercourse with other powers that they are an independent people of themselves, :uul have not forfeited, by the cliance of war, or by voluntary cession, any of tho^e privileges which belong to independent nations. In their treaties what nation ever interfered and asserted a claim to the territory, wliich they consider as belonging exclusively to themselves? Do they not make peace, and do they not go to war, like any other indepen- dent nation? If they are not an independent nation, why do we call them our allies? Why were they, during the late war with the Vailed States oi America, univer?ally treated as such? But why should I de- tain the Court upon this point, when it is so clear that they possess all the attributes of an independent nation, and consider themselves to be an independent people, acknowledging no jurisdiction over them? — They are not in the situation which, in their own figurative and ener- getic language, was so feelingly ond forcibly depicted when one of tlK-Ir jMchems described their situation to be, " that the reeds which had been " blown across the Atlantic ocean had became great trees, which " ?cofirged them." " They were reeds," said the agrd chief, " when " tlicy were blown across the great waters, they were received and •' planted by us, we watered them, and tlicy grew so that they became I '. 'nj Sfi2 m i ^.<. hi r ^1 V great treei in the foreat, and we are scourged with the brancbon V Uiereof." Chief Jusliee Sewdi — That would Imply a very strongs though per^ bapR not an equitable, jurMictign. pp you tay that was the complaint of one of their i;hfeff 7 Mr. Stuart,--~li wai the complaint of an Indian diief, but not of one belonging to thi^t portion of the Indian Territory. It wai a complaint piade in Quebec by one of the chjiefH, displaying in the most forcible si« mile, that thoae who, when weak, they had receive*} and nourinhed, had, when ftroi^g, become their oppressors. Abote, they have no occasion y^ to maico sucJi a complaint, and I mentionjed the circumstance to /d^cw 1^ di^t^ent situation in which the Inijiian nations above, were to to those with whom we are more acquainted. How long it may be be- fore they maice the sajjne lAo^entatpn, we cannot say. Whether those traders, who are now small as the reeds of which the sachem complain- ed, who (ure permitted to erect posts for their oonvenience, but have a; yet taken no actua) possession of t|ie soil, are tp be nourished up into trees, and become the scourge of those >vho now protect then), remains in the bosom of time. But I conclude my argument by insisting that, as no actual possession |ias avef been held of this territory by the British nation, that as no adotrifi possession was even taken of it by France, from which nation it might be supposed that England derived an autho- rity to leg^late for this territory, the British legislature could not, for a momeqt, entertaiu any right to make laws to bind any, but her own objects, in the Indian Territory ; nor do I admit that they could even go that length, but, without admitting or denying their power over Itbeir own subjects, it could extend no farther. I therefore contend, that it was most essential to aver, that Charles De Reinliard was a BriUsh subject, ^nt) tl)at the offence was committed, npt only contra pacem do- mini regis, eoronam et dignitatem ejus, but also, that it was committed vilhin his dominions. That the Indian Territories are not part of those dominions, I consider to be satisfactorily established, not only by the Indians making peace and war as other independent nations do, but, 1 think, i^ wit) be evident that this independence has been, and is, recog- nized by Great Britain herself. If I only refer to the numerous treaties made with the Indjuns by the British nation, I completely establish my point. I need, indeed« only look tp the very act upon which this in- dictinent is founded, and I deduce the same favourable confirmation of my position. It is an apt for the punishment of criqaes and offences compiitted in the Indian territories. It is not even called British terri- tories, and must be intended to bring to punishment persons owing alle^ giance to Britainy either from the offence being committed in the Bri- he brancbM 263 n>h dominion?, or from the ofTender owing a naturtl allegiaMce to tht JJriti»h Crown, {iiiib grounil* which will iiiiluco the Court to accede to our motion in arrest of judgment. AllQmey-aencraL-^ln reply to my lcarne«| friends I beg to contend that the case cited from Ea»t, of the King againfit the Inhabitants of Oxy ford h conclusive against the argument to shew that a new trial can be granted.— The course to be pursued, if any of tlie evils which my learned friends have so feelingly described chowW occur, is there distinctly point- ed out. '* In capital cases if a conviction take place at the assizes gpoq in- " sufficient evidence, the common course is to apply to the Crown for a " pardon, upon a full report of the evidence sent in by the Icarnec^ judge " to the secretary of state sor he home department." I cannot but rer mark, that I consider my lea/ ncd friend rather unfortunate in referring tQ this case, as it appears to tell completely against, instead, of supporting bis argument. T)ie reporter says, " I am not aware of any instance of a " new trial grafted in a capital case.?' The reason he was not aware of ii is, that there had not been any granted, and he adds, what must hn considered as pretty strong evidence, that there hud not, " that upon the " debate of all the judges in Margq-ret Tinklerh case in 178|, it seemed " to be considered that it could not be." If these ure the sort of cases which my learned friends arc reduced to the necessity of producing as nuthorities thajL a new trial may be granted in ci-imiiuil cases of a c:ipi< tul nature, I apprehend your Honours will not be disposed to be the fuH judges to evince that it can, by granting one in this case, in oppositioii to the positive dictum of my Lord Kenyan, that they cannot be granted, when the utmost length to which the research of my learned friends en* ables them to adduce differing authorities is, that the point is not settled in England, but after a debate between the whole of the judges, it seemed to be considered that it could not be. A great deal has been said by my leained friends, particularly by my friend, Mr. Stuart, upon the hard- ihijjs that would occur in this and other cases of a similar nature from the Court not being able to grant new trials, but the hardship is merely imaginary, and disappears the moment it is examined. Every thing my learned friend conceives ho would gain by a new trial, or rather the ma- king a motion for a new trial, under a firailar rule to that upon which motions in arrest of judgment are now licard and decided, viz : heard upon an undo, ited rule of law, and decided by the discretion of the Court to whom the motion is addressed, he can effect at present. Eve- ry thing that could be shewn upon a motion for a new trial addressed t? !•• '.I ! -'I 1>>:M f >t II • ! hM ii, 'io4 the Court, tuij now be «hewn in an npplication to tli« protentliig luid •ure remfdy ngainst Improper conduct on thu pnrt of the Jury. -Apply to tliH Dierey of the Crown, but ccrtninly not to the Court for a ncvr trial, who, wy* the dictum of my itord Kmyon, c)in not grant it. And if it could, what in the H(lvantiifi;eP thr f^oirn cpn a! once remedy tlie tvil, whereait a Jury cannot. On the Mibject of the eovfc»»ion o' • 'risotifr, and of the actual death of Oiren Kcvtny, my learueii friends took notliing, nor could tliey, as they clearly were not topics that could bo argued on a motion for a new trial, were your Honoursi even of opinion that you could entertain auch a motion. I would, however, jujit remark, relative to the conre<>- •ion, that my learned friend*a observatlonii might have had some weight if the confession had not been in the PriconerN own hand-wrilingt but the ctinfpstiion, being in his own hand-writing is a complete and satio- factory an!>wer to every thing that ban been naid relative to it, as he there acknowledges the murder, and details the circumstances which uii- fortunately led to,* and attended, its perpetration. ^' *' *• * '' » ^ "The next point urged by my learned friends was one of considerable dellcacf, though un(]iio!e several functions gave them authority to^ settle them. There remains nothing then to consider but the question of jurisdic' tion, in relation to its extent, as conferred by the act. One objection of my learned friends, and particularly insisted on by my friend Mr.Stuarl, was, that the rigorous construction which he contended the act confer' ring jurisdiction independent of locality, (thereby trenching, as he naid, upon the fundamental principle of the common law, that locality alone gave power,) precluded felonies from being taken notice of under the " general term crimes and offences." It appears not to be seriously ques- tioned, (though doubts were said to exist on the subject,) that in a case of felony committed in the dUlriet, or in the province, the Courts of tlie several districts of the province might, under the general description of " crimes or offenees,'| take cognizance, but my friend Mr.Siuavt, says, as the murder was committed in the Indian territory, it must go home for trial, because the right of trying iorfetonia committed in places over which an extra-judicial authority has been given, b«ilongs alone to the parent state. It was also urged by my learned friend who ndilresscd you first, that the constitution of this (!oiu-t was such as to prohibit cog- nizance being taken by it of felonies comraiite.l in the Indian tcrritoj ies, for, said the learned grntleman, " your Ifwiiours arc mijiul^ts, butfw.u- flH' ^Ks ' T'l ■ 9 ' B '^I^B ; ^K ' i^^B ' ■ fl. w ■ 1 '*'ll' !■ t iSj ■G i! ff 1 ! N j; I. •! i^jK . * I.! il nJ i I'H , fi;t ::f5d hH Wt ••'■ HK Srl% ' 1 ' m3s i « ' ■ B'i' 1 P'' |h f m i^^^ • w *■'..!", :| 1:1 ' 'HIT -lil *) i , li 'Ml > 4 [: 'T * ■ ! f mimoneri," anrf the act of t803, requires that judif** shall belong f Oyer and Terminer, being known to the constitution of both provinces cf Canada, be/ore the passing of the act of 1803, was SufBciently in esse to be admitted, (even nnder my learned friend's interpretation as to the necessity of its so being,) to a participation in the intended jurisdiction conferred by that itatute. - Having established that the objection against this very Court not be« ihg in esse in 1803, mufit fail, as well as shewn its power to try for felo- nies committed in the district of Quebec, it is necessary to follow up the enquiry, and prove that there is nothing that disqualifies it from exercis- ing a similar juriHiiction over otTences committed in the Indian Terrilo' Ties, to that with which tl>e other Courtu of the province are invested.— Ny learned frtend^s objection is twofold, your Honours are not judges, bat Commissioners, and it is the Courts of Lower Canada to whom power is given to try, &c. As to (he distinction arining from the plural num- ber being made use of by the uct relative to Lower, and the singular, Hhen it spealcs of Upper Canada, I imagine a word will suffice. In the Upper province th*ire in but one Court usuatly trying criminal matters, whilst in Lower Canada there are more. The objection as to your Ho- nours is equally unavailing. Your Honours are, for all the substantial purposes of the administration of criminal justice, at this moment judges, ft»lly ap if fitting in bench or nt bar, having power to compel the atten- fiance of witnesses, and to fulfil all the duties attached to the office, from the trial of a larceny, to the passing against a prisoner the judg- ment of deoth. On another point suggested by my learned friends, lij life iF-'^^' I hire where it shall be so enquired of." Nothing can, I think, be more direct in point than this, but upon reference to indict- ments upon this .otatute, fur an offence committed out of the realm, and the guilt of which consisted entirely in the being a subject, we find it was not thought uecessary to charge the accused with being a subject. I consider this as so conclusive, that I abstain from troubling the Court further on this objection to the indictment. In continuation, I suhinil, that the British government has a right to legislate for its own subjects any where ; that, as they can not forego their allegiance, they are ame- nable to the laws of the coimtrv out ot the realm, as much as if within it. It will not be necossnry to trespass on the time of your honours farther on this point, as this offence was actually committed in British territory, because we do not grant my learned friends, in the face of positive acts of parliament, of treaties, of boundary-lines run, and ui' every other act that can positively demonstrate that this was considered by the British government as territory belonging to the Crown ot Great-Britain, I say '.ve can not grant that thiit was an erroneous con- sideration. With respect to not proving the Prisoner to be a subject, it is true that ihxi fourth clause of the act requires proof that a person is not a British subject, and that the offence was committed within the limits of a colony, settlement, or territory, belonging to an Furopeau State, be- 261 fore a Prisoner, indicted on this statute, shail be forthwith acquitted; <)ut of whom is it required ? Not of the Crown, certninly. If my learned friends enquire bow bo? why not ? ibc answer is apparent. It is not required of the Crown, because U is a circumstance that can be better proved by the Prisoner. It is a .cii-cumslance completely within his Ituowledge, and therefore jnust be proved by liim. It js in the natura of an alWi^ the Oown indicts a prisoner for an offence, and, as well as the evidence in our bauds will allow, we bring home to a prisoner ihfi charge laid against him, lie asserts t4iat he was not at the place at the time ; upon his defence he must prove //ii« to entitle him to his acquit- tal, and in proving that he warmt where the indictment charges him to have been, he must shew where he teas. So in this case, we charge the Prisoner, with being accessary to the murder of Qwcn Keveny ; the Crown was not called upon to destroy its own case by averring that he was a British subject, because if it had averred it, the onus probandi would lie upon the Crown ; it would have been bound to have proved ihat which it is at nil times difficult to substantiate sntisfaclorily, via: the birth-place of the accused. If the Prisoner had made it a part of his defence that he was not a British subject, he Jiud at once the evi- dence In his own hands, he would have iteen put to no inconvenience on the subject of substantiaiin-; that which he alleged, hut my JearncJ friends appeared, till your Honours reminucd them of it, to have for- gotten that it was necessary that a prisoner should go a step beyond the shewing that he was not a subject, before he would, under the sta- tute, be entitled to his acquittal. By ihefflh clause, the intention of the legislature is so clearly exiiibited, that my learned friend's argn- mcnt, thoiiyli certainly very ingenious, must totally fail, for it is not left in any degree oj" uncertainty whether a British subject can hf. tried for Climes and pffences committed in the territory of another state, for it ex|jre>sly doclnrcs he may. So far from it being anyway dubious whether a Britisl) "subject can he tried for og'onees conunilted in a for- tih^ix state, the act expressly provides that a subject of his Majesty shall have his trial proceeded in, " nothwithsjlandiiig such oft'ence siiali appear " to have been committed within the iimits of any colony, settlement, or " territory, belonging to any European state.?' All my learned friend's argument relative to the defect in omitting to charge the oflTe^ice to have been committed in the King's dominions, vanisiies iu an instant because the act expressly authorizes the trial of any of his Majesty's lubjects for offences committed out of the King's dominions, so as it is not within the limits of any civil government of the United States of America. To be entitled to his acquittal, it was not sufficient merely to '6 on,; of ♦lie two points, llis pro» log that he was not a subject »;! : 1 H •2C2 I .1,1 mM^^v If '-i .. eP^'-iH^ !■ 'i ^^. s 1 ^ ^i' If, ^1 I* ■ . tvould not be 8ufficirnt ; his proving that the oflence was not committed t\'itliin the King's dominions would not be sufficient ; but to come up to the statute, it must, before the Court cnn acquit any person charged and prosecuted under this act, be proved that the offence was committed, not only not within the KingN dominions, but also within the limits of some colony, fsettl' nent, or territory, belunging to any European state ; and beyond that, that the person so diarged and prosecuted is not a sub* jcct of his Majesty. There was another observation of my learned friend, Jtfr. StuarlU, to which I can not but advert. He suid the queslion between the Crown and the Prisoner was not, subject or no subject, but,gut% or not guilty. It is true that was the question, but it was open to the Prisoner to have proved, in any way that he could, that he was not guilty, and he would have done that, bad he proved, what the a^^t renders it necessary to prove, to entitle a Prisoner to his acquittal. So far from debarring the consideration of the question of subject or no subject, it forms a pnrt ot the question at issue, because he is charged with having committed this offence within the jurisd-ct.on of fhi* Court. To be within the juris* diction he must be a mhy^^il of the Kins:, or the offence must have been committed within the King's don)intun«. The points therefore of sub- ject or no subject, and of jving's dominions or not, were fairly included in this issue, -tnil upon it thr Prisoner might have said, I am not guilty in manner nud form as I stand charj^cd in the indictment, for I am not a subject of his Mnjesty, and the offence was committed within a col- ony, settlement, or territory, belonging to another European state. Having proved this, we know the consequence; the Court would liave been bound forthwith to acquit him. Another ground '^'^ objcctiuti l)y my learned friend Mr. Stuart, and insisted upon by him at very consid- erable length was, that tlio liritish government had no title to this terri- tory. My lenrited friend by saying that there was no title in posse{>i a «if the government explained that he did not mean they required a title deed as an aiitliorily, but he said they had never acquired a right either by occupancy or conquot. My learned f-iend, with very great ingen- nity, represented the Indians ns having a government de facto, and a pussesfcioa dcfadu, and would induce us to believe, that very great hard- 5hip and injustiv:^. ^vonld be done to tItiH independent people, posseseing thai, in default of proof, the Crown would be destroying its own indictnicnt. For these reasons, amongst others, which no doubt will be adduceil by my learned friend, the Solicitor General, I coniiider that the motion for t new trial can not be entertained by the Court, whilst that in arrest of judgement will not avail the Prisoner. So/ici/or-Gencffl/.— The motions which my learned friends have, with so much ability, submitted to the Court, are two— the first, for u new trial, and the second, in arrest of judgment. At an earlier stage of the argument I took the liberty of stating to your honours my belief that the motion for a new trial, in a case of capital felony, coulil noi be en^ tertaincd by tbe Court. 1 still ftel consiaerable conlidencc in the coi- rectness of tbe opinion, but it is certainly with the greatest deference that, as the bahis of my observations, I assume It to be law, that the motion for a new trial in this case can not he enttrlained. Uhatevtr ...iiftdence I before felt upon the suhjcct cou not but be itineascl, when, at the present moment, I refer to the arsumciits of my learned friends, and find that all their ability und industry in research coiiUl net produce " M:inlr ca>o to Hipport Iho «anl;ai-y opinion, hr tJiP ntmoM Ic-jiiith '1 ■■ r I : iei Wi ■ ."•'•tia 5 '' ^ i I 1 i t&at tBey discovered any authority to go; Wu to My tliat it wa» h« Ifeved tlie matter wai not finally settled, but that the general upiniun, upon a debate of the whole of tho judges, appeared to be that it could not be granted. Thus lituated I feel persuaded your honours will not, in ■ case so completely novel, accede to the motion (br a new trial. But we do hot rely upon negative evidence in the opinion which wt fubmit of the idadtaiissibilily of our learned friend's proposition, be- cauiB the case cited by the Attomey-Gtntral^ from Sixth Term Heporln, oontaining the dictum of my Lord Kenytn, '* that in one clan of ofTenccn, ** those greater them misdemeanors, no ney^ trial can be granted at all," pats aU the arguments of the counsel on the other side upon this part of the subject completely Aon du eond>al. This decision of the enlightened and venerable judge, 1 toko it, will not be set aside by your honours in the absence of any conflicting authority, for I advert again to the eir- cumttanee of my learned friends on the other sidb, not producing a sin* gle case where a new trial had been granted, (nor has there been any, encept that in Levins, which has since been overruled,) and that all the length they went was to adduce an initance wherein it is said that the matter does not appear to be fully determined in England whether it may, or may not be granted. Under these circumstances, we con have no apprehension that there is any thing so pprnliar in this case, m to induce your honours to sanction, with the weight of your decision, a contrary opinion to that of my Lord Kenyon. The popular part of the argument, as to the hardship of refusing a Bew trial in criminal cases, has been supported by my learned friend, Mr. Stuart, on the ground that no other remedy exists, since a writ of attaint will not lie against the Jury for finding an improper verdict, and because this would be no reason for arresting tlie judgment; and 2diy, be has urged the peculiar anomaly that connsel are not heard on behalf of the prisoner in cases of felony, and that, as new trials are granted in eivilf a fortiori, they ought to be granted in criminal cases. The plain answer is, that if they were granted to prisoners, they must also be aN lowed to the Crown, for it is just us possible that a Jury may aeqvil the prisoner against the weight of evidence, or upon improper testimony, as that they tihould convict him. Indeed it appears to me that it' my learn- ed friend's proposition were established as the ordinary practice of criminal Courts, the hardship would be greater to prisoners than at pre- sent, as the principles of humanity, which always influence the adminis- tration of our criminal law and the conduct of juries, inclines rather, I think, to the acquittal, than to the conviction of a prisoner, under the circumstances alludtid to by ray learned friend. The same answer may be given to the argument us to the prisoner not being allowed to ad* S6S 4reM the jury by counsel ; for if the practice were otherwise, the erown officer! must exeiciso their right to ruply. Then asjto no remedy ex* isting, if n new trial can not be granted in a case of an improper ver- dict, inasmuch us it does not furnlkh a legul ari^umeut upon a motion in arrcft of judgmnut, my learned friend, the Jllomty Central, baa cor* reeled thut error by pointing to a sure remedy in the mercy of the Crown. Subject as every human institution is to error from the frailty o( our natures, it would be presumption to imagine that improper ver* diets may not sometimes be given, but it is the happiness of a defendant, who may be ullcetcd by such a verdict, that he has a sure protection against the consequences of such error in the mercy of the Crown, whiclt never fails, upon a proper rcpresentatirm of the case, to extend its prero- t^iitive, and remedy Ihu misconduct, or misapprehension, of a jury, by pardoning the prisoner.^ This is therefore the quarter to which my lenrned friends must direct their application, and if it is well founded, there can lie no doubt of its success. The observations which I have adihvsfied to the Court on the prin« ciple of competency in enUrtaining the motion, I would also remark, may '•erve, in n great nicusure, as answers to tlie expediency of granting the motion. There is, according to our idea, no necessity for doing so, to enable the Prisoner to escape the cflects of the verdict of the Jury, even it' iny learned friend's arguments, as to the propriety which dictated it, were admitted to be correct, and that, in justice end law, he ought to escape them, for he bus a more sure remedy open to him in the Royal mercy, and the jtoxcer of the Crown is equal to its mercy and its justice. Upon this part of my learned friends arguments, I therefore forbear troubling the Court farther. We consi.lcr first, with the greatest defc< rencs to your Honours, that the authority of my Lord Kenyon is deci- eive in support of our opinion upon the incompetency to entertain the motion for a new trial, and we see nothing in the case made out by my learned frienJ.s that would sustain such a motion, were it competent to the Court to receive it. Whatever may be your Honour's opinion on that point, I feel coafuknt you will do me the honour to coincide with uie, thut the previous argunient of my learned friends, even admitting every statement to be undeniably correct, cannot be made to bear on their motion in arre^t of judgment. iMy confidence of being snpported by the Court in this, that only for matters on the record, can judgment be arrested, arises from the numerous authorities on the point. 'Iho firU to which I refer is the most elementary book, and indeed m..y bo called the grammar of our law. I mean Mr. Justice Blackslone. In vol. 4, page 375, (Christian's edition) he describes, in considering of " juo« " tion may be grounded, although numerous, are confined to objectiun!i " which arioe on the face of the record iUelf, and which muite the prt>- " ceedinga apparently erroneous, and tliereforc, no deftct in evidena; or " improper conduct in the iriul, can be urged in Ihis stage of the proceed' '* ings." Chitly, Ut vol. p. 661. Upon this part of my learned friends argument, I shall close my observations by remarking that, whatever weight in another place the circumstances tliry adduce may have in ob> taining mercy for the unfortunate Prisoner, they cannot hers hnvc the effect of obtaiaing a new trial, nor be of any consideration on a motion in arrest of judgment. Tiie Court, having admitted my learned friotids to make these remarks incidentally, I felt it my duty to submit some ebM^rvation in reply to them ; having done so, I proceed to consider their arguments relative to the jurisdiction of the Court, both as it wus questioned, under their tionsto ani/ Court having the power to try fur a felony committed ii. Jie Indian territory, and also to a Court of Oyer and Terminer being invested with thiit power. The position of my learned friends 1 take to be, that no Court, and if any, that it is not a Court of Oyer and Terminer and general gaol delivery, that is invested with power, by the act of 1803, to try a felony committed in the Indian territories. My learned friends refer to the preamble of the act, and the words " crimes and offences" being used, and also Courts in the plural number. They insisJt that it is only misdt. mcanors which the term "crimes and offences," made use of in the act, give the power of trying, and also that that power, under the designa- tion o{ Courts, is only given to the ordinary Courts of the several di)- tricts of the province, But, If my learned friends had gone on to tbn fourth clause, they would have found that clause ,onclusive against their construction' as to the word Courts, (the species of offences intended by tlic act will be considered presently,) for tliey would there have found that power is expressly given to the Court before whom such prosecution shall be h&d to ac4uit, under certain circumstances; the fourth clause is, " Provided always, and be it further enacted, that if any crime or " offence charged and prosecuted under this net shall be proved to have " been committed by any person or persons, not being a subject or " subjects of his Majesty, and uUo within the limits of any colony, set- " ticment, or territory, belonging to any European state, the Court " before which such prosecution shall be had, shall forthwith acijuit " sucli person or persons, not being such subject or subject? :»s afore.'uiJ. : |i t, 'i 'it ■l.ri 1 ,1 t ■ M f"^ m ^ \'^ ^ IMAGE EVALUATION TEST TARGET (MT-3) // 4^0 K, 1.0 1.1 la|2£ 125 |50 "^™ ■^H u^ 12.0 lU us I ^ 1-25 III 1.4 III ^ < 6" ► Photographic Sciences Coiporalion 23 WIST MAIN STRUT WEBSTER, N.Y. UStO (716)S72-4S03 V^"" ""^ 4^ fe %^ 268 fx " of «u6h el^argc." Hero then we see that power is not exclusively con- fined to the Courts, according to my learned friends construction of the term, jbiit the power of acquittal is expressly given to the Court before \l\rbom such prosecution may be had, which clearly diews that a Court gentrally, tnay try crimes and offences compittted in the Indian territo- ries. The reason of the word being used in the plural in relation to Lower, and in the singular number, in relation to Upper, Canada, was very suitably explained by the Attomey-Qeneral to arise from the diffe- rence in the judicial establishment in the two provinces. Then as to the terra usually ; ** in which such crimes and offences are usually tried,'' I contend that, by this expression, ail legal Courts must be meant, and, according to this construction, that wc cannot measure the degree of use, or frequency of usage, of such Court, but that every Court le- cally having the power to try the particular' crime or offence, if com- mi|;ted in either of the provinces, was meant by the legislature, as a Court where crimes and offences of the same nature are uswilly tried, and consequently had jurisdiction given to it to try offences committed in the Indian territory. A Court of Oyer and Terminer is such a Court in the province of Xotoer Canada, and therefore /Ais is a Court where crimes and offences of the like nature as that of which the Prisoner has been convicted are usually tried, and therefore competent to try such a crime or offence, though committed in the Indian territory. In refe- rence to my friend jifr. Stuart*s observation that this act must be most strictly and rigorously construed ; I beg to remark that I differ com- pletely with him. On what it is that he founds his opinion, I do not know. He assigned as oi^e reason, that it trenched upon what he termed a fundamei^tal principle of the common luw of England, which invart^ ably associates locality and jurisdiction. The enquiry which suggests itself to m^, as proper to make, previ- ously to deciding upon its construction, is this ; is the statute of 4Sd Geo. III. a remedial or a penal statute? If it were a ;7ena/ statute, I should agree with my learned friend that it ought to receive a most strict and rigorous construction, bijit it is a rtmedial act in its fullest extent, and, as such, I contend, in opposit\pn to my learned friend, that it ongbt to receive the most extensive and liberal interpretation, because such acts afe invariably construed in the most liberal manner, and such is the construction, that I think I feel warranted in believing this act will receive from your Honours, and, if it receive the extensive con- struction I contend for, it will include all Courts, und must take in a Court of Oyer and Terminer. Again, in deciding upon the construc- Vi.0.9 W)iich any act of parliament ought to receive, I should think it bigbly expedient to cndeavoar to ascertain what were the objects the. 269 ?ei;iMaturc hat) lo view in passing it, and, iu support of this opinion, I jnight refer to the authority of Comyns. What was the intention of the legislature in passing this actis manifest from its preamble, which states tliat, " whereas ^reat crimes and offences have been committed in the ** Indian teriitory, &c. which are not cognizable by any jurisdictioH' *^ whatever, and by reason thereof, great crimes and offences have gone, *' anci may hereafter go, unpunished, and greatly increase." This was tiic evil which this act was intended to remedy, and as great crimes and offences had gone unpunished, and apprehensions were entertained that they might still do so, and greatly increase, there was a necessity for speedy punishment of crime in tlie In(|ian territory, that retributive Justice might overtake the daring offenders who had long fearlessly committed all manner of crimes and offences of the most atrocious na- ture. Your Honours know there are cases in which it is essential that retribution should almost instantly take plaae. I ought rather to say, in which the necessity of speedy justice is such, that, to delay it, would be almost to render it unavailing as an example. We know that cases of murder and treason require — not retribution — it was an improper term that escaped me, because it is not for vengeance that the law im- poses punishment upon crimes, in different degrees, but for the public gbod, thus, making an example of one guilty fellow-creature, the means of deterring numbers from falling into a similar delusion, is really an net of mercy to t-lie community at large. The- situation of this unfor- tunate Indian country loudly demanded speedy justice, and the inten- tion of the legislature was to bring to immediate punishment offender<:, who, for want of any jurisdictson to take cognizance of their great crimes and offences, had gone hitherto, and, it was much feared, might hereafter go, unpunis^hed. How could this salutary measure be best ef- fected? In what way could this object of the parliament be best ac- complished, but by giving power to all the Courts to take cognizance of offences committed in the Indian territory similar to those which are usually tried therein when committed within their respective provinces? This was done, and in extending tlie jurisdiction to the Courts where offences of a like nature would have been tried, if committed in the province, it included a Court of Oj/cr and Terminer. That it should j|iave done otherwise, cannot for a inotnent be imagined, I think, if we ^ok at the^constitution of the other criminal Courts here. The Court of King*s Bench holds two short terms aunuully, or In ease of the Chief Justice being sick, or, as wan the case some time ago. Absent from the province, or, if from any circumstance the Court be not full, or, as lately at Montreal, the Court be incomplete, oi- cannot sit, there could be no way of adminigtcring speedy justice to crime, o-- '.( i<' ■! ; m ' . h !lK '/"';!* ' 270 " ' to the inclividual accusetl, (perhaps wrongfully,) but by a Court of Oyer and Terminer. It) suoh case;), do my learned friends contend they should not be tried at all ? Supposing some of the individuals accussed arrived at Montreal^ according to the course prescribed by the statute, immediately after the term had closed, are they to wait five months for their trial, without there being any possibility of having justice ear< Her rendered between the Crown and the prisoners? This surely could not be the intention of the legislature by the general expression that of- fences committed in the Indian territories are to>be tried in the Courts where similar offences, if committed within the respective provinces, are usually, and would severally be tried. In Lototr Canada as well as Upper, a Court of Oyer and Terminer is one of the usual Courts for the trial of murder and felonies generally, and is therefore a competent Court to try under this act the same ogcnces, when sent down for trial to these provinces from the Indian territories. That this is a fair coi> etruction of the act in questjon, I feel satisfied, if not to the very letter, certainly according to the intent, which is the rule of law. There is another point which my learned friends have dwelt on considerably, and upon which they appear to me to place a reliance but little warranted by any argument which they adduce to support the correctness of their position. It is that Courts being used in the plural number, in relation to Lotver Canada, it must have referred to the three Courts attached to the districts of the province. I contend, in opposition to that con* etruction given to the expression " Courts where offehces are usually tried," that it means, or haS reference to, the different kinds of Courts OP trials that may be had, as the Court of King's Bench, or a trial at bar, and a Court of Oyer and Terminer, and then the difference in phraseology as to the two provinces is accounted for, as in Upper ('ana- da they do nut hold trials at bar ; their trials take place only in Courts of Oyer and Terminer. Mr. Stuart. — I believe my learned friend, ihe SoticitOT'General, is misinformed on that point. He would not, I am confident, state, that in Upper Canada trials at bar Avere not held, did he not believe it to be the case, but on farther investigation he will be satisfied that the fact is trials at bar do take place in the Upper province. Solicitor-General. — \ may, perhaps, have gone too far in saying they were not held in Upper Canada, they may be perhaps ; bu^ when they are, such Courts form an exception to the g-eneral rule, and such Court is not the usual Court, for the usual Court in the sister-province is by commission of Oyer and Terminer. In answer to what I consider as a minor objection of my learned friends^ (though insisted upon at conside- rable length by both of them,) namely, that the jurisdiction of the Court 271 does not extend to felonies, though it might be admitted to try for mh* demeanors committed in the Indian Territories, and the 8trange princi' pie assumed and argued by my learned friend, Mr. Stuart, that feiony is not a crime ; I remark that my learned friend appears to consider Mr. Justice Blackstone^s making use, in his elementary Work, of tlie terms «rimes and misdemeanors as synonymous terms, as settling, con- clusively, that felony is not crime ; but, if the learned gcntlemfln had gone on a very little farther, in the 4th vol. of that able work, that valuable compendium of our law, he would find that his own authority is directly in opposition to the argument which he has submitted. " The general definition of crime," he says, ** comprehends both crimen *' and misdemeanors which, properly speaking, are mere synonymous " terms, though in common usage," (in what common usage ? why, in common usage among lawyers, amon^ that clafis of persons for whom his work was more particularly intended,) ** the word crhrns is made to *' deaote such offences as are of a deeper and more atrocious dye," and a little lower down, in the very same page, he settles the matter most conclusively as to what kind of offences ought to be rank among crimes ; *' but," he says, '* treason, murder and robbery are properly ranked " among crimes." This is a part of Mr. Justice Blackstone^s opinion which did not appear to attract my learned friend's attention ; nor dues the recent case of Sliaw, produced by my learned friends, at all vary or oppose this doctrine. Mr» Selwyn, in opening the case on behalf of the Prisoner, abandons all idea of questioning the general power of the Court, under the term " crimes and offences," to try for felony, and the decisic n of my Lord EUenborough was not at all influenced by a consideration of the right of trying felonies under that general defini- tion, but in arriving at his own decision, the point upon which his jndg- ment was formed was, that this particular statute, for the prevention of frauds, did not authorize it, and that, therefore, the proceedings must be quashed. In forming his judgment he adopted, and, as I humbly conceive, he sanctioned, the correctness of the position, which I have had the honour already to submit as a sacred legal rule, ** that every' 'i statute ought to be construed according to the intent of parliament," as well as another very similar, '* that every statute ought to be ex* '^ pounded, not according to the letter, but according to the intent." Adopt this rule, and what was the intent of the act of 1803? not to prevent frauds, or to punish mere wrongs of property, not to bring to justice individuals who had been guilty of slight miHlemeanors ; no ; tlte preamble of the act recites, in a manner too plain to be misunderstood, or to allow it for a moment to be supposed that it was made to represi and punish slight offences, " That, whereas great crimes and offences 1. ',;■ l-HfiMiif 272 ■'■; h J 'i- *' have been committed in the Indian territories, and by reason of tbeif *>■ not being cognizable by any jurisdiction whatever, these great crimes ** and offences have gone, and may hereafter go, unpuniRhcd." To re- medy this great evil, tite act of the iSd G^ko. III. was passed. What these great crimes and offences were, unfortunately, was matter of pablic notoriety, in the dreadful state of this devoted and unhappy country. It was not misdemeanors that constituted the s^reat crimeii and offences, but robberies, arsons, murders, and every otlwr atrocious offence that adds to the dark catalogue of felonies. And to sirppoM; that by this act the smaller offences were intended only to be prosccuteii, tried and punished, would be to suppose that it was proposed to hold out encouragement to the perpetration of the larger ones. But it h contrary to common sense thus to interpret the act of the legislature. They gave the power to try for crimes and offences, for great cimcs and offences, and the conclusion I arrive at on this part of subject is, simply, thaX felonies are crimes, if . .-'^ * " , In adopting the rules that I have quoted from Comyni' Digest, vo/. 'J . word Parliament — Letter R. 10, one remark more occurs on the point of the proper mode of expounding statutes. Comyns^ same word and number, says, " if the enacting words ean take in the mischief, they ** shall he extended for that purpose, though the preamble does not war* *' rant it.'' Bassett versus Bassett, M. 1744, 3 Jlkins, 203. Here the preamble does warrant it, for it recites that crimes and offences IiavR been committed ; the title warrants it, it is an act to extend the juiiy- diction to the trial of crimes and offences ; the enacting sections warrant it, the second speaks of crimes and offences, and of persons guilty of aiiy crime or offence, the third speaks of every such offender, evidently re- fering to the former description of persons guilty of any crime or of- fence. — There can be no doubt that this act, being a highly remedial one» must be construed to include all crimes and offences. I say that, a necessity existing for the punishment of murder cooimitted in the Indian territories, the parliament, by this act, gave under the term *' crimes *^ and offences," power to the Courts of the two provinces, (and amongst them to this Court,) to prosecute, try, and subject to punishment, all persons accused and convicted of nuirder, or any other felony. With re- spect to the omiiiftion of proof as to the baptismal name of Keveny^ of his actual death, and of the admission of the con/esston in a manner which my learned friends consider irregular, I consider that I should be most unwarrantably trifling with the time of the Court were I, after the solemn decision the whole of those points have received, to offer any thing in the shape of reply to my learned friends. The Court solemnly decided the admissibility of the confession, and as it would have been indecorous ^73 in me, to have Hnpugned your Honours' decision, had it been agninst the adQiission of it, so nour it is completely unnecessary to say a word in support of it. As id the death and baptismal name of Keveny^ I should be actually infringing upon the province of the Jury, were I to presume to stir iheir decision ; each of these points have been decided by the Court, or by the Jury, according ais they appertained to the one or the other. 1 decline,' therefore, offering any argument upon either of the points, and shall proceed to a consideration of w hetber it was ne* cessary to haive stated on the indictmeni that the Prisoner was a. firitisd subject. This is clearly a question of /ato, and theretbre as clearly a proper point to be insistdd upon in arrest of judgement, but my learned friends appear to overlook that the onus probandi, by the fourth and fifth clauses of the act, is completely thrown upon the Prisoner. It is he who must prove that he is not a subject of bis Majesty. After we h^e proved our allegation ifiat the offence w&s committed in the Indian territory we have gone far enough, our case is proved, aind it is the Pris- oner who must produce negative testimony, or evidence that he was not a subject of his Majesty, and that the oflTence was coihmitted within some European colony or settlement. All that was necessary in the in* dictment was to have averted that the offence was committed within th6 jurisdiction of this Court, in the Indian territory, but ex majori cautelA^ we have described it as being perpetrated at the said place in the Kiver Winnipie ; the Jury have said that the offence was perpetrated there, and it is not competent to the f'risoner, after his conviction, to turri round up- on us and say, you have not averred that I am a Britisb subject. Adbait- iing what my learned friends advance to be the fact, 'viz : that 2>e JRein- hard is not a £ut>ject, still that alone would not entitle him to his acquittal. It is very true that the act does say to ensure to the Prisoner an acquit- tal forthwith, that it must be proved that he is not a subject of his Ma^ jesty, but it does not say that, if he stops at having proved that be is not one of his Majesty's subjects, he shall be forthwith acquitted, but that, if he is an alien, ''nd the offence was committed within some Ettropeaii colony, or settlement, then the Court, before whom bis trial is held, shall forthwith acquit faliA. But altiiough necessary for him to pr6v6 himself an alien, and also that the offence was committed within an Eu- ropean settlement, before be could obtaiA an acquittal forthwith, yet had we averred him to be a subject, and failed in our proof, we shoule exercised, the Court of King's Bench best comports with the importance of it, the Court of King*s Bsneli is identical, and perpetual, whilst a Court of Oyer and Terminer is changeable and temporary. "Whatever may be the va- riation of its officers, however death may remove those who occupy its; bar, and dignify its bench, the Court of King'*s Bench remains the same. Its power is not arrested by the mutations of time, or the changes of of circumstances. Its processes are always in force. Its authority is always in exercise, whether it is term or vacation, still the identity an^ perpetuity of the Court is preserved. Its judges may be removed by casualties, or may vanish by death, but the Court is perpetual, it exists for ever. It participates in, or rather is, the seat of the monarch's pow- er, and, like the King, it never dies. The Court that we have the ho- nour to address in another room is a Court for ever. It has been, and '^t: 277 will continue so a tliouMnd jeafs hence ; that Court wUI exist for ever, anfl although difffttni judges preside over it, it will still be the lame Court : the Court of King^i Bench. It could not be meant Courts that might be c "cted. Tor where was ihe certainty they would be erected, and, when erected, uhat was the certainty of their duration. That formi n con^derable objection in our minds to any but tj^ie Counts of ^he threit districts, being considered the usual Courts of the province. However much we may respect this Court, we cannot hut recollect that this Court is ephemeral, it was born a few days ago, and in few days hence it will die, and ,be po more Ij^eard of. Another material difference between the Courts is found in the mode of apppintlng those who are to hold the pleas. In the regular Courts they do not depend on the choice of any Governor, they are the King^t judges, independent of every considera- tion, depending on no contingency, Removed by no incident except death. Although your Honours are judges of tl^e Court of KingU Beneh^ yet it does not vary my argwuent at all ; the appointment of Courts of Oj/er and Terminer is a very high prerogative, a prerogative (certainly, where the King, by his representative, names his own judges, for a spe- cial occasion. I do not, for a moment, insinuate that is not his prero- gative, or that it is, or has been, improperly used, but I submit it is a very high prerogative of the Crown, and, with the page of history open to qur view, we might be allowed to ask, might it not be made a power- ful engiTie pt oppie^^io^ ? Aijotbcr difference that I notice is, that the judges are judges of the distri.cls at larije, and not confined to any parti- cular one. For these reasons, we tJiink,. there is such a ditference be- tween ihe judges of the Court o{ King^s liench, and the justices, or «07n- missioners of a Court of Qijer 9nd Terminer, that we are induced to be- lieve that the Jegisialure did not intend, by the word judges, any other than the r(^>//(er judges of the districts of the province. I come now, to the word!>, or part of the act, wherein t))e Courts of the proviiice are specified, and contend that the dij^rence is equally stciking. My argu- ment is that your Honours are sitting nndcr a commission as justices of a Court of Oyer and Terminer, and that this cannot be the Courts of the province mentioned in the act as the Courts wherein offences of a like nature are usuallif tried. T^e third clause expressly provides that every offender may and shall be pro^cuted and tried in the Courts of the pro- vince of Lower Canada, unless he shall, fur certain reasons, be transmit- ted to Upper Canada for his trial. I allege that this Court cannot be the Courts designated in the clause of the act I have just referred to. If I look to its commission, I shall see it is a Court for the district of due- bee, not for the three several districts, and therefore cannot be the Courts of Xo*cr Canada* "When we have the Courts of Montreal, and Three Bi- . , .jii ll'^ i '■im\ 278 m. urs^ and of ^utbee, then we Iiave tbe Courts of tlie provinee of Jjovtr Canada, and it in the CourtM in Lower Canada that are to try otTencea committed in the Indian territory. I tnlce it that, unleiit wc have theie Courtu, a prisoner has not all the benefit which the law intended him to have, became It might be probable that the legidlatare had conferred on one or upon aome Courts, rights or privileges which it may not upon another — — Mr. Jiistiee Bowen.^— Might not, according to your view, commit ■iont issue under tbe act of 1793? Mr. Stuart. — Undoubtedly, but our objection to it is, that would be a Courts and a Court of a district, when it is the Courts wlio are to try for offences committed in tbe Indian territories, and the Courts, not of a district, but of tbe prorineer Again, the inferiority of this Court must be apparent. Tbe act, in making provision for tlie issuing suh* pcenas, declares they shall be issued by the judges ; there are no judges under a special commission of Oyer and Terminer. We know of the twelve judges of England, and of the jut^ges of tite Court of King^s Bendi, but not of the judges of a Court of Oyer and Terminer. We hear of A. B. C, D. £. F. being tried before justices of assi$t, but we do not call them judga. It is only when speaking of permanent Courts, that we speak of judges, and we say that those who sit under a commis- sion of Oj/er Tenntiterare, neither technically, nor popularly, judges. They are called justices technically, aud commissioners popularly, but no one thinks of calling them judges. My learned friends have con' tended that the indictment is sufficient in describing the offence to )mve been " conimttted within the Indian territories,*' but that such descrip- tion did not prohibit more being added, and they, therefore, included " that it was tcitkin the jurisdiction of this Court.'* This description presents a mixed question of law and of fact. The judge directs the jury on the law, and the jury find ihefaet upon that direction ; it is nut upon record, and it is then, we are told, too late to plead that it was not in the King's dominions, or that we owed him no allegiance, as we were not one of his subjects. At present, non constat, on the Crown's own shew- ing, that this offence might not be commited within the territory of some European nation. I said before, and say still, my learned friends were bound, in their indictment, to give due certainty, and, I allege, that they did not, I was misunderstood by my learned friends before, it was not my intention to insist upon that being introduced into the in- dictment which would make it completely inoperative, but I stated that, merely to charge the offence as contra pacem domini regis was not suffi- cient, because tbe offence, though committed, might not have been eommitted against his peace, because he might not have any peace to 270 break, and that it was Incumbent upon the Crown, to prove that it tvai againit hit peace, before it could be entitled to ailc the conviction of the Prisoner. Ai to the laws of other nation*, I know nothing of them till tliey are brought into evidence, nor any that justify one nation iegii- lating for another. My learned friend, the SoUcitor-Oenerai^ produced a most extraordinary reason for extending the power of trying oflencei comuilted in the Indian territory to Courts of Oyer and Terminer ; he spoke of the inconvenience that might arise from the incompetency of the Court of King's Btneh to sit, from its not being full. I would aric if it be po9iiible that the learned Crown officer can, with complacency, contemplate the Court of King't Bench of Lower Canadm^ n not assem- bling from incompetency. Are the private or personal feelings of « judge, or two judges, to interfere with the jurisprudence of the country, and the regular and due administration of justice between man and man. Is the stream of law and justice to be stopped through the disinclination of any individual whatever, no matter from what motive, to perform his duty? I should hope not. 1 shall now advert very briefly to the distinction which we draw between crimes and/t/ontex. I take it to be a fact that will not be denied, or I will produce authorities upon tlie point, that persons may be tried in England under the statute of Hknbt VIII. for felony committed abroad. That being admitted, I refer to the act of 1803, and find it is (o give jurisdiction over crimes and offen- ces, which are not *'■ cognizable by any jurisdiction whatever.** It might narrow my observations very much by stating that because trtO' son and murder committed abroad, are cognizable by the statutes of Hbwrt VIII. they cannot hi under this act ; for this act only gives ja- risdiction over '* crimes and offences committed in the hidian territory^ " which are not cognizable by any other jurisdiction.'* I will read the introduction of the preamble. ^ Whereas crimes and offences have been '* committed in the Indian territories and other parts of America not ** within the limits of the provinces of Upper or Lower Canada, or «- " ther of them, or of the jurisdiction of any of the Courts established '^ in these provinces, or within the limits of any civil government of *' the United States of America, and are therefore not eogniuable by any *^ jurisdiction whatever, and, by reason thereof, great crimes and offences *' have gone, and may hereafter go, unpunished, and greatly increase, " for remedy whereof,** &c. &c. For remedy of what ? why, evidently for the crimes and offences that were '* not cognizable by any jurisdic" tion whatever.'* If, then, I shew that the offence for which that man has been convicted is cognisable at the King's Courts at Westminster, I think I go a long way to shew that he has been illegally so, for that this i% not the erimCf or one of the crimes over which the legislalurd intended I., ivji I :!if ■y'f.. m u to g!ve the Courts of Canada jurisdictioo, becnuse it was onfy to the triaf of offences not cognizable by any juriiJieliun, thHt the 4Sd Geo. III. made provision. I would ask if it is not evident that there are two of- fences, viz. treason and murder, which catanot be tried und'er this act, because they can be tried in' England; the case of SImSjd eomplctely eat- braces this principle. The statute must Iks strictly construed, hotvvith- standing the observations of Mr, Solieitor'Gerural^ that, a^i a remedial statute, it ought to receive a lAost liberal interpretatton. I contend that its construction ought to be most rigorous, for the reason I assigned In the early part Of this discussion, viz. that where jurisdiction is con- ferred independent of locality, there the greatest strictness ought to mark the construction of acts of parliament. Various other reasons might be assigned, but I will not detain the Court by reference to them, as we think, in that case, your Honours will find the doctrine' com- pletely recognized ; but here the case is much stronger, a Court docs exist where cognizance can be taken of this offence ; the King's Court at Westminster, I shall refrain from troubling the Court further, con- ceiving I have offered sufficient in support of our propositions, the one for a new trial, and the other in arrest of judgment. A new trial w6 consider ourselves entitled to, upon the ground of the irregular receipt of the confession, and the misdirection of your Honours as to the boun- dary line, inasmuch as you laid down northward to mean due north. In arrest of judgment^ I conceive the indictment to be defective, and that this Court has no jurisdiction. ' - ' ' ^ : '" -i * r«. ■'^'-'- ^.if The argument being closed^ the Court was adjourned till Friday mor- ning, the 5th instant, at 10 (Peloek, A. M. ^ ,. , -^^ '\H::- •(' 'X.,. >: . . n Friday y bth Sunt, 1818. PRESENT AS BEFORE. Cftief Justice Sewtll— The Courtis now called upon to deliver their judgment on th» arguments urged by the gentlemen who are counsel for the Prisoner, on the motion in arrest of judgment, and for a new trial. In support of the motion ia arrest of judgment, the juriadiotioii £81 assumed by this Court has been objected to, on a variety o^ grounds, aad very stric'ly examined, ai)d in so doing, it has been held by the Prisoner's counsel, 1st, that the statute of the 43d of the King, does not give to atiy Court the power vyhich we assumed in trying the Prisoner for a fdony, and Sdly, that, on the Quebec act^ in conjunction with the 3Ut Geo. III. wc have put a misconstruction, and Have inisdirected the jury, wlio h^ve consequently delivered an erroneous verdict. The gentlemen argued first that, under this aot, 43d Geo. III. no Court hail jurisdiction oyer jelonies committed in tbo Indian territory, and they further urged tjiat^ if that power is given to any, it is by pre-eininence to those Courts which were ihen,exi^liug, and which had been previous- ly Icnown as the established Counts of the province, afid this, being aii extraordinarij^ or specuU Court, its power is denied. They have further avowed that, were it admitted that cognizance could, under this act, be taken otfelonies, and by this Court, still the judgment ought to be arrest- ed, because it was jicceiisary that it should have appeared upon the indict* ' ment that the Prisoner was a subject of his Majesty, and that the offence •uas committed within his Majesty^s dominions, neither of which aver- liients are madej and it is contended that for these omissions, judgment ought to be arrested. In exhibiting the reasons lipon which thfe Court founds its judgment, there are three points arising out of the statute o^ iSd Geo. III. Cap- 138, cohhected with the question of jurisdittion^ which will demand our serious consideration. I notice, before- stating them, that on the 14/^ of the King it is alleged that we have put a con- struction as to the boundaries of his Majesty's ancient province of Que^ bee, which is erroneous, and that we have followed up that misconstrucl- tion, by misdirecting the Jury as to the limits of the province of Upper Canada. The argument of the learned gentlemen then states, that, by ibis misdirection and misconstruction, we have assumed a jurisdiction which is not warranted. There were two minci* points stated, but these if indeed we may now notice them at all, having been beibre decided by the Court and by the jury, need only be mentioned : the hrsc Was as to any proof of the actual death ofKtveny, and the second, that the confession said to have been made before the Earl of Selkirk, was improperly re- ceived as evidence. These are the whole of the points which have been suggested, and the Court will consider them in the order they have been now recapitulated. Upon tlie question of jurisdiction, there aro three points arising immediately out of the act of tbe iSd Geo. III. cap. 138, as stated by the counsel. 1st, Tiiat by this statute no jurisdiction is given to any of the Courts of the province, to try for any felony com- mitted in the Indian territory ; 2dly, that it has not given jurisdlstion to this Court to try for any tffcnce committed in the Indian territory ; ■•y. ,1 iiife:' H' *! w M -\ 'A> ji MP ■ -ii! n^ i\ M m '>,Jki . m and, Silly, that it was necessary to aver in tire indictment that " the *'■ offence was committed in the King's dominions,*' and that ** the ** Prisoner was a subject of his Majesty." I'bese points demand, and hAve received, the most deliberate attention from the Court, and the result .of our consideration, as well as the reasons which have in> duced it, I shall state in delivering our judgment. The object of the act of the 43d of the King, as we gather from its entire context, talc ing the act as a whole, appears to have been this ; to give jurisdic" tion to the government of Lower Canada, for the punishment of of< fences committed, not solely in the Jtnc/uin(ern7orie« which were con- sidercd as belonging to the British dominions, but in other parts of Ante- ruM^ viz. in European settlements, if committed hy British subjects; for this purpose in the enacting clause. . after having recited in the pre- amble the necessity inquiring the act, it declares that " from and after " the passing of this act all offences, committed within any of the In- " dian territories, or parts of America, not within the limits of either " of the provinces of Upper and Lower Canada, or of an^ civil govern- " ment 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 commit- " ted within the province of Lower or Upper Canada." In the second clause it gives to the Magistrates whom it authorises and empowers the Governor, Lieutenant Governor, &c. to appoint, power, through the Indian Territory^ and in boUi Canadas^ to commit any person guilty of any crime or offence ; and makes it lawful for any person to apprehend and detain for the purpose of their being conveyed to Lower Canada (to be dealt with according to law) any person so guilty. , [The Chief Justice read the second clause throughout."] The third clause provides in certain cases for the transmission of tht' crime or offence for trial to the province of Upper Canada.— [The Chief Justice read (he third clause throughout^ remarking /Aa/—- " by its provi- ** sions the Court, in either province, trying such offence, were to pro- *' ceed upon it in every respect as if it had been really committed in the *' Province or within the immediate jurisdiction of such Court."] Having thus declared the mode of trial, and given the power of awarding punishment, the clause proceeds to give power to take the ne* cessary steps to secure and enforce the attendance of witnesses. Autho- rity is therefore given, to the Judges and other officers of the Court, to issue subpoenas and other processes, and such subpanas and other pro* cesses are made as valid and effectual, and are to be in full force, and to be put i!i execution, ia any parts of the Indian Terrt/ortex, &«k as fully i 283 and amply m any such subpoenas, or processes are ivithin the limits of tho jurisdiction oi' the Court from which such subpoenas may have issued. By, the next clause, (the fourth^ it provides and enacts *' That if any "crime or offence, charged and prosecuted, under this act, shall be ** proved to iiave been committed by any person or persons, not being " a subject or subjects of his Majesty, and also within the limits of any " colony, settlement, or territory, belonging to any European states, ^ the Court before which, such prosecution shall be had, shall forthwith " acquit such person or persons, not being such subject or subjects, as " aforesaid, of such charge." But the final clause provides that, if any person be charged with an offence committed in the Indian Ttrritory^ or with any other offence committed elsewhere within the jurisdiction of the Court, the Court shall proceed with the trial, if the offender be a ivbjectf " notwithstanding such offence shall appear to have been com- " roitted within the Utnlts of any colony, settlement, or territory, be- " longing to any European state." ^rora tins outline of the statute itself, it is manifest that the inten- tion of the legislature was ; first, to punish the perpetrators of (^encet committed in the Indian Territory, whether they 6e, or he not subjects ; and ^ly, to punish the perpetrators of offences committed in any Eu- ropean colony, or settlement, in Ameriea^ being svhjeets. It is equally manifest, that there was not given bj this act, any increased jurisdiction over any offences committed in the provinces of Lower or Upper Cana^ da, nor any jurisdiction over offences committed within the limits of apy civil government of the United States of America; and that it idid not intend, to give anj^ jurisdiction over offences committed in European colonies, if perpetrated by aliens. Having thus considered the statute generally, and the intention of the legislature in passing it,. I diall pro- ceed to apply itto the case of the Prisoner in reference, 1st. to the ju* risdiction of this Court over the person of the Prisoner, and 2dly. to the jurisdiction of this Court, over the crime charged against him. From' the preliminary observations which I have made, as well as from a perusal of the act itself, it is evident that this statute claims, or assumes, all parts of America, not being within either of the provinces of Upper or Ixtwer Canada, nor. within the limits of any civil govern- ment of the United States of America, nor in the actual occupancy of any European state to he^lndian territory, within British jurisdiction, and subject to British legislation, and hold9 all persons th^e being, to be bound to that power, whether aliens or subjects. It has been argued at the bar, that the right of Briti(«h legislation, did not extend so far, and reference was bad to the American rebellion to shew that although for- merly the whole of Korth Aoj^rlea might be considered as subject tp - I' '11 ■M "'I 1 ^i i r I li I -i ' ' hi; ;Jii. •i ill; > 1 '\ !■ J'l';- '.ii'i '■i V'^wH It 1 Iffl^^K : '"1 ^ i ■ ^^9H ^■' 284 ■ . "^ '■' ■ «'■ mr.'^" P-, m the British govcrnmeDt, yet that by the event of that rebellion a part of it wax fevered, and that, although whien no other civilized nation had possessions on this continent, it might make no difference whether the limits of any particular territory wiere or were not correctly ascertained, as her jurisdiction over the whole could not be disputed, yet that now it is indispensable that they should be so ascertained, and that it should be proved on what authority the right is assumed of legislating over the Indian territories. You will not of course expect pfie to refer to his- tory upon this subject ; it will be a suffipient answer that this claim has been set up from alinost time immemorial, and confirmed, in almost in- numerable instances, by the solemn acts of the King and Parliament. Then how stands the case at present before Us ? By the indictment and the verdict, it is said, the murder was committed in the Indian territo- ries, or parts of America, not within the limits of Upper Canada, nor of Lower Canada, nor of any civil government of the United States of America. Upon what part of the evidence the Jury have made up tlieir verdict, it is not for us to say, but it is immaterial, upon this find- ing, whether he was a subject or not, because^ being in the Indian terri- tories, as described, be owed a temporary allegiance, and was clearly within the jurisdiction of this Court, which is what the Crown alleges. If, instead of this, the offence had been committed in some colony or set- tlement belonging to some European state, then the Prisoner should have shewn it, as also that he was an alien. To enable him to do this, it was not necessary that the Crown should have alleged him to be a subject, nor that the offence was committed in the King^s dominions. In the general course or practice it might be necessary for this plea to be made in abatement, or in accordance with general principles to plead it in Bar, but under the present statute, it evidently is not so, for upon the general plea of not guilty, it is competent to him to prove that he is an alien, and that the offence was committed in a colony belong- ing to some European state. It is the statute therefore which provides that pleadings in bar, or abatement, are unnecessary^ because by the fourth and fifth clauses, it admits them to be proved upon the general t<7 SMC. ■ ■ ■ Jlie Chief Jwtice read tlic itk and 5lh clauses at length, \ The consequence of these clauses is, that the door, by this statute, is opened to the'prisoner to prove two facts, upon the trial on pleading the general issue alone, which will immediately enable him to demand his acquittal, but, as was observed by his Majesty's Crown officers, the onus jtrobandi upon this issue, is manifestly thrown upon the Prisoner, and for a reason sufficiently obvious. He could best prove them, and had most 285 fnleresi in doing 50 ; bnt, having neglected to do it, he cannot now as- sert that he IB not a subject. The finding of the Jury is, ** in manner *' and form as he stands charged in the indictment,''* which charges the murder to have been cpoimitted in the Indian territory, and the finding is in the Indian territory, and he cannot now contradict it. It is im- possible that he can stand here, at this moment, in a better situation than lie did upon tiis trial. He must /Aere have proved, not only that he was an alien, but aUo that his otfence was committed within some European settletnent. Had he proved that he was an alien, he must, in addition, have shewn that the offence was perpetrated within an Euror pean colony ; and why should he stand now In mojre favourable circum- stances than before conviction, where half of What must hare constituted his defence is cut away by the finding of the Jury, which declares that the offence teas committed in the Indian territory, and not in any £i)' ropean colony ? This being the state of the case, there is a defect which is unanswerable; he should have proved that he was an alien upon the general issue whirji he pleaded, for it is most singular that be should now call upon the Court to hold hit^i to be an alien, and entitled to an arrest of judgment without an iota of proof, not so much even as an affidavit ^ that he is so, Avhilst, on the other hand, the positive finding of the Jury renders it an irrelevant fact, by finding that the offence was com- mitted in the Indian territory. It is manifest, if, before the ftndlng of the Jury, we could not extend to him the right of acquittal, or relieve him from the authority of the statute, that we cannot now that the ver- dict of the Jury has actually disproved half of that which it was neces- sary for him to provp, to justify the Court in acquitting him. Thu» much is relative to the person of the Prisoner before us. ' ^ • 'V- ' I now shall consider the crime wherewith he is charced. It is fe- lony and murder, and it has been srgued, and very ably argued too, by the gcntlrmen engaged on the defence, that we, that is the Courts gencraHy, have no jurisdiction over felonies committed in the Indian territories, and esprcinlly, it has been urgecl, that a Court of Oyer and Tenhiner has not. We fvill ^enquire first, whether to any of the Courts of this province jurisdiction is given over felonies committed in the Indian territory, and, if we find that there is, we will prose- cute the enquiry, so as to ascertain whether this Court qught to be considered as one of them. In reference to the first question, the gen- tlemen engaged on the defence, in support of their position, have pro- duced the case of SSmw at large, and contend that it satisfactorily proves that, under the term *' crimes and offences," power is not giTcrt to try for sl felony. Any decision of my Lord Ellenborough is unques- tionably 'entitled to the Qtmost respect, and so is this, anU it will rei \i f;,f' :!! H^l' 286 ft' iA i ccive it frou this Court; but it is evident, upon looking at ShawU ca^e, tliat it is noticing more than a trial founded on b particular Mtatutt^ and is therefore merely an expositipn of that statute. The statute of 4!^ Qep. III. eap. 85, on which ShawU case ariras, is an extension to etbier ca^es of a previous statute, a statute of William and Mary, which Baade provision for the trial of offences which might by prosecuted by ipdictment and information, and the case is nothing but an exposition «f that p/»rticular statute. Oftences prosecuted, or that can be prose- cqted, by ipdictrient an(2 information, must necessarily imply misde- Hieanors, and misdemeanors only. As it is an undoubted principle of law that felony can not be prosecuted by information, it is manifest no Court cpuid assume the power of awarding punishment upon a coo* viction on a statute for a crime comprehended within a class of offences which w^B not included in the statute upon which the conviction was obtained* It was not doubted that the word erimet included felonie^t indeed the couofel for &wwt ^r.Selwyn^ said himself, upon the applica* tion of the words, crimes and offences, to felonies generally, that there was na difficulty, the task was to determine whether, in the particular instance then before tlie Court, it could be extended to theme There is a manifest difference between a general application of a principle, and the special application of it to a particular cate. My. Lord Ellenbo' roughs in pronouncing judgement in this case of SImw^ says, (referring at Uie same moment to the 42^id^ *' only retrilHitioii, or a compensation in damages ; but when trotd tx- " perience it is discovered that this is not sufficient to restrain WithlA " moderate bounds certain classes of injuries, it then becomes necessbrf ** for the legislative power to raise them into crimes, and to endeavdilt ** to repress them by the terror of punishment, or the sword of the puh^ ♦♦ lie magistrate. ••""■-. •/'■^•^'•-■••^ /' "^ ''^ •.•.... .■-;^ One of the objects then of legislative interference is, by the terror of the punishment upon the offender, and the sword of the civil ikiagistrate, to repress crimes. ** The word ertme*^ (says the same author) has nd " technical meaning in the law of England. But it seems, when it has 4 ** reference to positive law, to comprehehd those Acts Whiidh subject the ** offender to punishment." From Mr. Justice Blackstoiit's deftnitibn, iih«l Mr. Christianas notes, there can be no doubt then enteriaihed, but ^at the words " crimes and offences" may, and do, in ordinary acc^ptiltion, lnclude/e(0ntes ; it remains to enquire, does the term '* crimes And offen* " oes," under the preseiU statute, include, and give jurisdiction over them? The true question is this, whether, looking at the statute upoit which the Prisoner is charged, in connection with its context, it ap- pears to have i)eien the intention of the legislature to give jurijsdiction in cases of felony, by the tise of the words ** crimes and olJEences,*' Whicli fo frequently appear in the preamble and enacting clauseis of this statute. The first clause is certainly most conlprehehsive ; it is in gieneral words, and aihply sufficient to include felonies. The words made use of arie, *' all offences," and " any of the Indian territories,^^ but, notwithstand- ing this general description as to crime and locality, ith'as lieeh urged at the bar, and plausibly urged too, that the preamble 6t t^is statute is different, it will be necessary therefore, to have recourse to the preaoi- ble, to ascertain whether it really is' in opposHion to these word^ — ^it 10 88 follows : " Whereas," &c.— [Pr«am6/c read, page 279.]— Kow it iii said, in reference to this, (and said truly,) tiiat for murder committed hf a subject in a foreign territory, there was a jurisdiction already esta- blished by the act 6( SSd Hknry VIII. cap. S3, and a method provided, in which that jurisdiction shall be carried into effect, viz : " that mur- " der confeissed by a person, who lias been examined by three of the ** council, or who is veberaenily suspected to be guilty, may lie heard " and determined before commissioners of Oyer and Terminer, in any ** county of England to be named by the King." Originally this act extended to treason, and misprision of treason, but has been repealed iii • \w mm 2ia8 .> V t*:'Ff i- mmi I'iT. f^m. gelation to thosJ crimes, but not in relation to murtler. Ihrt tlien, H lias been argued, is tlie Court wliere ttio oll'eucu of murder, if committed in foreign parts, should be tried. The (question ix, is tiii» tlic true import of the preamble of the act of tlie i5d Gko. III. cap. 138 ? Does the con- text agree with the text? Tlie preamble cunnot be underr^tood but with reference to the states of Amtrita. The object of the whole statute, is to provide a local jurisdiction in America^ for the trial of crimes com- mitted in the Indian territories, and why? The preamble of the act telU us. It tells us that great crimes and offences are conimitted ; whtre does it say they are committed ? Not in Lower Canada^ wlieru th5fy might be tried ; not in Up,per Canaday where they might be tried ; not within the limits of any civil government of tbo Uniled Slates of America^ where they might be tried; .but this mention of' the provinces of Canada, and of the United States of America, implies that these words must be understood in reference to a jurisdiction strictly lo- cal. The preamble recites that crimes arc committed in the Indian territory,, and are. not coguizablc, by any jurisdiction whatsoever, (that is, in America,) not cognizable by any jurisdiction adapted to the ne- cessity of the case ; an(( by this act the legislature say, we will, for the remedy of this evil, erect a competent jurisdiction in America. Should this appear a fair and obvious expositioa of the preamble, yet it may still be said) that preambles are not ahvay^ a guide to expound statutes; case of Baffcf/ versus /l£a/(t>g, «ro. 164, JII. 3, Car. II. They are not always most certainly, but, again, on the otner band, it has been settled that though '* the preamble may explain, it cannot restrain, the words ** of enacting clauses,'' and in this, and in all pases, where it is possible the preamble and enacting clauses, are to be construed together, as the cootext-of the statute. To shew that these observations on the cSect of preambles, and their operation upup the enacting, clauses of an act, ar.e correct, numerous au- thorities might be produced. I shall, however, only refer to one or two, as establisl^ing the. principle I have laid down, that the preamble and the enacting clauses must .be construed, jointly if possible, in order tq obtain the true intent of the framers of a statute, which upon all oc- casions.must be the guide in determining the interpretation or exposition %vhich it ought to receive. In Viner^s abridgement, 19 vol. p. 521, sea. 100, it is.b^id, *' th^ preamble is a key to open the minds of the makers, *' and the. mischiefs they intend to remedy ;" this was said by Dyer, ch. J. PI. 369, in case of Stowel, versus Zouck ; I refer also to Coke upon Lillhlov,19 a, for the same doctrine. At the same place in this volume of VineVy is the declaration of three justices, in the case of Barker versus fiea4ing before meationed, relative to preambles, in these words : '* the " preamble in not a guide to expound statutes always ;^^— and this is ivA* Inediately followed by an extract Trom 8th Mod. 144, in the case of tho iting versus Allhoes, which elucidates and enforces the position relative to the joint expositlbn of the clauses and preamble. " Per. Cur, It is *' ho rule, in the exposition of statutes, to confine the general words o^ *' the enacting claunies to any particular words, either introducing it, or *' to any suiih words even irl the preamble itself; it is true, my Lord ** Coke commends a tonstruction which agrees with the preamble, but ** not such as may ednfine the enacting part to it.'* My Lord Chancel- lor Cowper, a marl most Certainly entitled to our respect, confirms this opinion in Copemaa versus Gatlanty where he said, ** that he could by *' no means, allow the notion that the preamble shall festrain the ope- ** ration of the enacting clauses, and that, betiause the pfeamble is too ** harrow or defective, therefore the enacting clause, which has general *' words, shall be restrained from its full latitude, and frotn doing that *' good Which the words would otherwise, and of themselves, import, " which (with some heat,) he said, was a ridiculous notion, tmd instanc- *' ed in the Coventry Act, which if it had recited the barbaHty of Cut- ** ting Cbventrif*8 nose, and the enacting clause had been general, viz : " against the cutting of any member, where the man is disfigured or de^ '* faced, it mi^ht, with equal reason, be objected that the Cutting of the ** lips, or putting out the eye, would not have been within the act, be- " cause not within the preamble.** Wms. rep. 320, trin. 1716.— This opinion on the Cotentfy act seems expressly adapted to this case, and is conclusive as to the mode in which law, as well as common sense, re^ quires that preambles and enacting clauses, should be construed in rela- tion to each other. The principle has indeed been carried much farther, it has been held that, " all things which may be taken to be v(rithin the' ** mischief of the statute, shall be taken to be within the equity of it,*' and, under this interpretation, it is said, *' that consideration being giv« ** en to the true reason of the remedy, then the office of the judge is aN ** ways to make such construction, as redresses the mischiefs, and ad- ** vances the remedy, and to suppress subtle inventions and evasions for *' continuance of the mischief, and pro pi'ivato dommodo^ and to add ** force and life to the remedy, according to the true intent of the ma- " kers of the act, pro bono piAliioJ* But without sftying that it is the province of the judge to go that length, I shall apply the general rules to this case. Jn the first instance, the words that give the jurisdiction are, ** all ** oh^nces committed within any of the Indian territories shall be, and be deenied to be, offences of the same nature,** &c. How can words be ttronger or more general ? If we go a little farther to the third clause,. ' '! ' / l^f- ■' ■:'^i 290 tve iihaU find it eoactn, " that the Court may rad ib«n proceed therein,*' (that 1$ in each caw of erime or offence committed in the Indian terri- tory,) " to trial, jadgmtni^ and exteutumf or other puntMhuuntf for luch ** crime or offence in the same manner, at if such crime or offence had ** been really committed within the jurisdiction of such Court.'* These words are certainly as general, and as strong, as those of the former clause, which gives the jurisdiction. It Is impossible to make th«m stronger, or more general, and It is equally impossible to take for them aa interpretation more limited than the words import, in their ordinary acceptation. But there is a part of these words which requires and de- serves a more particular consideration. What are we to understand by the words " judgment and txecuiion^^ in connection, as they are, with the words, " or other punishment ?*' By the two expressions, the act must surely refer to different kinds of punishment, and to all such as are usually awarded in similar case in the province, where the same may be tried. Let us, however, refer to the case of Slutw^ which is a cler- gyable offence, and see how the record would be made up ? or rather, let us take a case nearer to that of the Prisoner, a case of felony and manslaughter, of which the form of the reeord may be found in Block* itotWi appendix, (in HwWt case :) It criuoludes in these words, ** who " upon their oath say*' (that is the jury) " that the said Peter Hunt is " not guilty of the murder as aforesaid above charged upon him, but that " tlie said Peter Hunt is guilty of the felonious slaying of the aforesaid ** Samuel Collins, &c. And immediately it is demanded of the said " Peter Hun/, if he hath, or knoweth, any thing to say, wherefore the " said justices here ought not, upon the premises and verdict aforesaid, " to proceed to jitdgment and execution against him, who sayeth, that " lie is a clerk, and prayeth the beneftt of clergy to be allowed him in *^ this behalf," &c. What then do>these words ** judgment and execution^ imply? why, they imply tliat punishment which is usually awarded in cases-of felony, pre-eminently the punishment of death ; and, if the words " judgment and execution" do imply, in the language of the law, the uUimum. suppfietum, the judgment of death, and its execution, then it is the punishment of death which, by these words, is designated in the statute, as is manifest from what immediately follows, via, " or other *' punishment. For the words are, " the Court may and shall proceed ** to trial, judgment, and execution, or other punishment, for such crime ** or offence, in the same manner in every respect, as if such crime had *'■ been committed within the jurisdiction of such Courts." To what end is it, if oti(y some other punishment than that of deo^can be awarded under this act, to what end, I ask, is it that the words **judgmenl *^ and exficution'Vare made use of, in contradistinction to ** other pun- 891 itbrnent ?** We an of ophiloD, upon the wlwl«, that the legiilatura, {« thit aet, intended to give the power of proceediog to ''Judgment and ex- •eution," that ia, to award the pnniibment of death { and, ifio, If power if given to aeeord the pvniihment of rfeo/Jk, it most neeewarily follow that it wu the intention of the legislatnre, by the previooi enacting clautet, to give the power of trying for /een upon the 4dd of the King, what I have now to remark upon, is that which is connected with the 14th of the King. The points connected with this act have been already decided during the trial, yet, If there had been any thing since advanced to induce the t ; 1 1 I sot m 1 i V 1^ Court to change iti opinioa, you nhould amiredly have had the advan- taf^e of it, but there ii nothing. The act of tlie l4th of the King, ii coinmnnly called tho Quebec Act. In the flrot olaiiM of thia act, the boundaries of Hiii Majcuty'n ancient province of Quebec are dencribad. It ia unnecesmry to read the whole, but the line reacheri the river " conn* ** monly called Niagara^ and then along by the ea$lern and touthcattern ** bank of Lake Erie, following tlie Mid bank, until the unmoihall be ** interiocted by the northern boundary granted by the charter of tlie ** province of Pcnniyhania, in caoe the same Hhall be lo interrected, and ** from thence along the iiaid northern and weotern boundariei of the ** raid province, until the raid boundary fitrike the 0/tio. But in caie ** the raid bank of the raid lake phall not be found to be lo interacted, " then following the oaid bank until it ahall arrive at that point of the ** said bank which shall be nearest to the north western angle of the raid ** province of Pcnntyhania, and thence by a right line to the nor//i trei* ** /em angle of the raid province ; and thence along the we$tem bounda* ** ry of the raid province ; until it strike the river Ohio, and along the ** bank of the raid river, wcttward, to the banks of the Mi$»iuippi, and ** northward to the southern boundary of the territory granted to the ** merchants adventurers of England, trading to HudtonU BayJ* The statute describes the entire line of circumscription of the pro- vince which it erects, under the name of the province of Quebec, and describes it very exactly. The part I have been no particular in reading is the part upon which it is confiidered that a mifidirection has been given by the Court to the Jury. It is necessary to observe, relative to this line, that it is a curved line in some parts, and a straiglit line in others. Thus, whilst going along the banks of the Ohio, it is curved, but as soon as it reaches the banks of the Miitissippi, it becoipes a straight line. It follows the banks of the Ohio in a curve, but the words of the statute are imperative, when it reaches the mouth of the Mississippi. It is to proceed '* northward,^* in a straight line. If it had been intended that H should continue on, along the banks of the Mississippi, it would have raid so. It carries the line to the bank of the Mississippi, and what right have we to ray, that it should run along, or within, the banks where they who framed the act, omit it. They say, thence it is to run northward. You have contended that this means ta incline north, ac- ^rding to the course of the river ; it is impossible for im to ray so, we •re bound to take the statute in its words. It |s impossible for us to do Otherwise, it is a fixed and certain boundary, and, according to the sta- tute, we have, to the best of our knowledge, decided it. In the decision we have made, we are supported by the authority of my Lord Hardvnche, in the f9M of Penn and BaUimor^i In the disputes between Penn^ t)pt t93 \ , pro|tt-i«tor of PrnttBjflvania, and my Lord Batlimortf on tht qaeition re- lative ta the liiiiitfi o( Maryland^ • Rimilar tlifliuulty aroM, and the oat* in to lio fountl iti length, in 1 Triey, Stm. 4A4. I mention thin case, be* fnufle the Court linve tiilccn upon theniMlvei to decide the limitf of Ca- nada. (>ri(;iiml jiiri> i Mf m h^':lM Mr. Justice Bowen merely expressed his eoneurrettee in the luminoui view of the questions^ taken by his honour the Chief Justice, in the jtidg* tnent which he had delivered, and observed that if the construction of the Prisoner'* s counsel of the act of 1803 uas correct, then their practice' for twenty five years, namely, from 1793, had been erroneous as it was pretty notorious that the Court had sal to try felonies of all kinds. 3 .-a [I , til' h Proelameaim biing made for sUenee^ the tentenet of sbatvwm pro* momued hy the Chief Jtutiee, against the Prisoner in the tuuai nuMner, he being ordered/br exuution on Monday the Zth inst. ' , '' ?f!-.^'i. .■'•;'■ j::;:#.^ V' f*,J3:^".-^^-* WU'J-VV Xiri> O* TBS TBIXL eV CBAKLSS DE KEHrHAB'D. i >'■-■' ' i * ^ ' " ' , * »»• i,_-^l:_,- '■■, ■ , " ' I ♦■ ^ k "«» ', V.'<'i'i^'- -' • SUMMARY .z ■ J- K. OK ■ . ■ "i i> . : , ; THE TMIAIi OS . ■>.)■ ;> !] //.'<•. I .'»■,■.■;■• . ::, ii ■„•■ '< YH'. ■'■■ " ■> ' \\'\'-ih ."'. ARCHIBALD M'LELLAN. Es«niRE. -r ,'■. 'I'- , I.. ■*f;'-\.-' * : '. .. •.'■■' > Ltv ':\ ■";! '^W ■' Ufoh rttCMb^ the 9th June^ Mr. Jitwmey-Gttural moving that ** Abcbibals M'Lellan*' (who had at the clostf of the March turn been liberated from confinement upon gWing bail,) " be put to the bar ** for the purpose of ARRAioitMENT aaran accessary to the Murder of ** Owen Keveny.*^—Mr. Stuari observed, that after what had passed he should not have sbpposed that the Crown officers would have proceeded with any more trials on this indictment at present^ and was proceeding to oppose the motion, when the Court stated, that till he was formally accused by the indictment being read to him, the defendant^ not being before the Court, could not he heard by it. Mr. Stuart stated, that hit dejection was, ** that the Court could not proceed to decide the limit* ** of Upper Canada, and that it was useless to expose the accused to " th3 hazard of a long imprisonment, whilst the necessary representa* " tions were made to the government at home,'' and suggested thai perhaps he might be permitted to move the Court " that further pro* *' ceedings upon this indictment be staid till the decision was obtained." T/ie €!ourt answered, ** You must plead something, and then we wilt " hear you in any way your judgment may point out as most suitable.'' Abchibald M'LbliiAV was then arraigned in the usual form, and pleaded Not Gviltt. (3fr. Stuart being promised by the Court that time should be given to prepare a special plea.) In answer to the usual enquiry of when the Prisoner would be ready for trial, Mr. Stuart stated I't- .S y%m il'il I: IS'? 206 ' i. 4 - that to prepare the spetial plea, would take some time, as his eoiinsef must consult together, but he thought by Thursday they would be ready. The Crown officers disclaimed any wish to unreasonably press upon the Prisoner, and trusting that his counsel would then be ready, moved bis commitment. Mr. Stuart submitted that Mr. M'Lellan was under bail to a lurge amount ; but the Court said, " jljler his arraigment he ** cannot be permitted to be at large.*' — Let tlie Court be adjourned till TnvnsTULT morning at Eight 6*elockj A. M. On Thursday^ the lltta inst. Mr. Altorney-Genefal again moved that Archibald M^Lellan be put to the bar. Mr. Stuart athlressed the Court stating, that after great legal doubts as to the propriety of so doing, the counsel for'jlfr. M*Lellan had acceded to his urgent solidtations to allow the plea of the general issue to stand. ** Our otcn opinions (said Mr 4 " Stvutrf) are not at all changed, for we are rather sdrtenderingour ** judgments to the anxiety of the Defendant^ who, conscious of his in- ** nocence, prefers an immediate trial, under some disadvantages, to ** protracting the process, by availing himself of any privilege which ** the law might give him, and he will be ready for his trial to-morrow." The Court was then adjourned till To-motrvw, at Eight o'clock^ A^M. On Friday^ 12th June, the trial commenced before His Honour Chief JvsTicK'Se^Klt, and Alsxxs Caron, £sq. King's counsel, the same professional Gentlemen conducting the prosecution and defence as in the case of De ReivJuifd, and the Jury sworn eonsisling of the fol* lowing gentlemen :•-« A WiUiam MeasatHt , John Orchardf Jacque$ La Fleur, George PottSf ''• David Golstrom, Jacques BoilieUf if* \ X s X X X John Glatterer, Jacques Tranquil., ■_, Joseph Chamberlandf Daniel Golstrom, John Hersey^ ' ' ^ " Joseph DefqL " The Prisoner's counsel assenting to a suggestion of the Court, that as the eighth count contained all the allegations against the Prisoner, if would be unnecessary t(^ trouble the Jury with the whale of the long in^ dictment, he was given in charge to them upon that Count alone. Mr. Attorney-General opened the case by observing, that although accused of the crime of murder, the Prisoner was charged only as an accessary both be/ore and after the commission of the offence, and ad- verting to the conviction of the Principal, stated, that the record thereof would be made evidence against the defendant, as establishing the ac tual commisaion of the murder. Having very briefly explained the It* gat ithport of the charge, he elcpressed his expectation that the flepteatci allegations would be so fully sustained, that the Jury would be com- pelled, in the discharge of their duty, to find the Prisoner guilty of the crime. He cautioned them against any prepossession which the noto- riety of the disputes between the UudioiCs Bay and North West Compaq nies might expose them to, and disclaimed on the part of the Crown any wish relative to this trial, thad that a trut verdict Inigfat be given according to tlie evidence alone : but, in the absence of positive proof, (which cases of murder seldom admitted,) he should by a variety of strong circumstances, (he feared,) satisfy the Jury that such a verdict must be octLTT. The AttDrney-Ceneral noticed the means by which Mr. Keveny wal brought to Bat de la Riviite — his being sent away by the Prisoner in charge of Boit-brulea — his subsequent transfer to Faille, La Pointe, and the Indian Jose, t?>gether with their quarrel and separation, observing, that it would be very material to recollect M^LellarCs conduct in a va- riety of situations, as from the coincidence of circumstances his guilt would become apparent. The opposition by the deceased to the war* rant executed by De Beifihard was then adverted to, as well as the Prisoner's leaving Keveny the very last time he was seen, in the Custody of Mainville and De Reinhatd, (who might be supposed to be his ene- mies) and leaving him, after they had in M*LetlarU bearing freely spoken of killing him. The conduct of the Prisoner upon meeting Faille and La Pointe, after their separation from Jo$£, in beating them, and his observation that the Indian wanting to kill Keveny ** was none " of their business" were alluded to, as well as the conversation between the people of his own canoe^ relative to killing him, and dividing hii bvUin, The conversation with the people of the Swan River brigade was instanced, and M^LellanU remark to them, " 'Tis well, he will " not steal any more, to-morrow, at this hour^ his business is done/' described as peculiarly significant. The charge of harbouring the mar> derers with a guilty knowledge of their crime, the Attomey-Generol considered to be sustained by the following circumstances — their brings ing to M^Lellan's encampment the bloody clothes of the deceased — the small canoe, in which he might have been expected to arrive, being in a similar situation, and the subsequent orders of the Prisoner to burn the canoe. His anxiety to retake Keveny — his anger at not finding him where he expected to do so, and then leaving him tofollow^ instead of himself banding him over to the laws of the country were noticed ai singular, whilst the absence of surprise upon De JRemAard'i communi* eating the catastrophe in these words, *' His business is done, he is welt '^ hidd«n — he will not come back dgain,** in connection with bis contintH \ k\ ^ t: tt I ■ 1 l,l! V m f[M A' 298 IP m i if u.. A:) iff- ing to Hv«, eat, (]rin1c> and sleep with the murderer, not only In the canoe, but aiw when encamped, were produced as strong additional evidences of guilt. His receipt of part of the butin of Keveny^ and his forbidding the people to speak of his death, telling them the probability vas if spoken of they would suffer, were adduced, and, in connection with the ieiroumstance that be was a partner, and therefore had controul of the Xorth-West servants, uged to the same point. In addition to these facts, it would be proved by a Jlfr. JEfeur/er, that the Prisoner, in a letter addressed to a Mr. M^Donell^ wrote these words, *' Ktveny ha$ *' disappeared^ don^t be anxious about him,** which, the AUomey-General thought, must be applicable to his destruction, the incitement to which horrid step might (he suggested) perhaps be found in the circarostanoe of the valuable information Keveny could furnish to Lmrd Selkirk^ if he reached Fort William^ added to his natural intrepidity and capacity to be serviceable, if any contest took place between the companies. All these Mr. Attamey-Oeneral represented as strong indications of guilt, but, proceeding to lay before the Jury the evidence, he should rely with confidence that their verdict would be one strictly consonant to the oath they had taken, of making a true deliveraoce between our Sovereign Juord the King, and the Prisoner at the bar. William Bachelor CoIaTIian, Esqutre^* and Mr. Joseph BoucnsTTE, Junior, being sworn, proved that the Dalks were to the north of a line drawn due west from Portage des Rats, and to the west of a line drawn due north from the junction of the Ohio and Mississippi rivers — thus establishing, in accordance with the decision in De Rein- hard*$ case, that the place where the offence was alleged to have been eiommitted was ict'Mm the jurisdiction of this Court. ..... ■-: t. .. HiJBEBT Faille's examination commenced by a relation of the piroumstanees narrated in his evidenoe (pcfge IS) on the former trial, to the words " remained on shore,** with the addition that " he had asked for a gun, but was refused by Mr. M*DoneU.**'-[Mr, Solicitor GenertU stated that his next question had for its object to prove, that at this time the intention of killing the unfortunate Mr. Keveny existed — the Chief Justice asked, '* What has this to do with the Prisoner at the bar, * It may be proper here to correct an error which has pUssed unob- served in Mr. (ioltman*s evidence on the trial of De Reinhard (page 12.) Instead of saying as is there represented, that " it is a matter of public <* notoriety that writs issued by the magistrates of the Western district »* of Upper Canada, are executed at Fort WUHam,** U ought to read, ** It is a matter of notoriety that writs are issued by the magistrates, " &c. (0 be executed at Fort WiUiam,** ,,. ., . W. S. 299 ^ whoae namt even is not yet mentioned ?** Mr. SolkUor Qerurnl re^ plied, tliat although Mr. M*Dm\tU might now appear hor» du combat^ yet the Crawn would incontestlbly connect the whole of the circumstances, and the Prisoner with them.—** At this moment (said Mr. Solieitor^) ** Keveny is delivered up to this party, who take him in charge ; and w6 ** shall shew, that they afterwards met the Prisoner at the bar, by whom ** Keveny was taken out of the custody of these persons, and handed o* ** ver to his murderers. Eventually, we shall unite these two branches ** of evidence, and distinctly connect the Prisoner with both ;** — and un- less permitted to lay events before the Jury, in the order of time in which they occurred, the evidence would appear confused. The Court re- marking, that this was reviving the course which on the late trial had been declared inadmissible, directed the Solicitor-General " to first con- " nect the Prisoner with the transactions he proposed to make evidence " against him.''] Witness cursorily detailed the intervening occurren- ces, till the arrival of M*Lellan*s canoe, including, among the transac- tions on shore, the beating he received, saying twice that *' he did not " know why he was beat,'' but omitting the expression, " that it was ** not our business^^^ attributed to M^JLallan, (page 16, of the former tri- al,)— and* its subsequent departure with himself and LaPointe, (page 17,) and continued his evidence up to the period of meeting the Swan Kiver brigade, (page 18,) declaring, repeatedly, that he related on shore, and in the canoe, in the presence of Mr. Archy^^ all that happened be- tween the Indian and them, and that the Indian had wanted to kill Ke- veny^ but that he could not say, whether the Prisoner heard him or no/,t nor could he tell wlutt M'Lellan said, though he stated that l^e spoke to him. As his account of- what occurred at that meeting, differs from his former testimony, (page 18,) it is judged proper to give his exact words, accompanied by an abstract of observations by the Court and the Advo- cates .'— *' The next day (after embarking,) we met five or six canoes, " by which we learnt that Mr. Keveny was farther on, above the Dclkt •' in the River Winnipie, and afterwards we found Keveny at the place. «* I do not know whether it was of Mr. Ducharme^ but somebody asked " the people of the canoes, how Keveny managed for his living, but I do " not know whether Mr. Areliy heard it. We were all talking together, ** and somdtody asked, ** how does he manage for his living ?" and some • The Prisoner is known to the Yoyageurs by this appellation. t It may be proper here to notice, that in March, he was particular- ly examined to this point, and gave similar evidence as to M*Lellan*s hearing, but he then stated, that at this time ilfr. Jrehy scolded him and tauntingly asked who directed him to beat the Savage ? W. S. ■I'l 1 ■ 'it 'V ; 1 1 tw ' 300 / ** one aniwered, Mmetimei he stole rrom the Indians, and sometimef he ** bought. / do not know in tokat part of /Ae eanoe M*Leltan wia at that " time. I do not know that M^Lellan heard thk eonvenalion. I cannot " say. M*Lellan wot nearer than I was, and I heard it very well. I " was a little farther qff than Mr. Archy. I was not then speaking, and , *^ at that time I heard no repl;^ given to this answer. J heard it very " well, but / do not know whether M*Lellan heard it or not, but certainly ** he was nearer than I was.** ,».'<«<*..« ^^'.^v -.'i. «.;;?' i •<:. . [Mr. Stuart suggesting, that till it was shewn that Mr. M*Lellan ' took part in this conversation, the Court would not insert it on their notes. The Solicitor-General contended, that the witness having proved the Prisoner to have been in a situation, where it was almost impossible ■f^ /> but he must have heard, bis evidence ought to be taken down. The C/»e/^<^u',■■/ . .'.-/«-.,.,.? ;V "■'^ ,.,- ■ . . . .-. , =....-. Chief Justice Sewell. — How did he speak ? Did he speak loud ? Faille. — He spoke loud enough for me to hear him. He spoke as I do at present. The person that spoke was before me. The partners and clerks were in the middle. I was behind them. y. Solicitor-General. — The one that spoke was consequently between you and the gentlepfien (6ourgeot>) ? ; , , .... Faille. — I do not know. [The Court again asked what this eoidd tend to, and Mr. SoUdlor" General proceeded to examine Faille as to finding Keveny, but the Chief «7usy JJfr. Archy. W. S. , ." . ; I I' i Ml ;lli 'I I I.' Ilri 302 ' ^DeJUinhurd, (pages 18, 19,) and U> M*Leltan*s lituation in the ea» noe, at the time of the convenation of the M£tif$. (page 21.) He des- cribed that Mr. M^Lellan was nearer to De RehUuird than Ae wat, and Chat the people spolie as Ae was then doing, (in an ordinary tone ;) and Jn answer to a solemn interrogatory flrom the Courts he said, ** I do not ** know whether Mb. Arcmt heard it or not*' — and to a leeond, " I '* did not hear him $peaV* Upon which Mr. Sluart objected to tha whole of this evidence. The Chief Jtutiee replied, " «t rests with the ** Jury to give what credit to it they think proper, and also to ray, ** whether the Prisoner did or did not hear. The Crown has merely *^ proved that he was in the canoe." ^ The Court wa$ then adjourned for half an hour. The witness continued his evidence, by relating their departnre in M^Lellan's canoe— their encamping for tlie night, and hearing the re* port of a gun, (page 22,) adding, (an he did in March,) that Desmaraie said, ** OA, the dogs! they have killed AiW — the arrival of the small ea- noe — Mr, Arehy, and others, going to the water side — the conversation that passed — and the relation, (to the engages,) by Maintille, of the cir- cumstances attending the death, (but as the gentlemen (bourgeois,) were not present, evidence was not allowed of what they were.) The evi- dence here, referring particularly to the Prisoner, is given at length. Faille.'-l saw Keveny*s things landed, but I do not know that M^Lellan saw them ; but be was near enough to have seen them, if he had looked. There was a trunk with papers which De Reinhard opened, and, examining the papers, threw them into the tent of the bourgeois, where M*Lellan stayed. Mr. M^Lelhtn read them, and tore and burnt them. I am certain that they were the papers out of Keveny*s trunk, which Mr. M^Lellan read, tore, and burnt. De Reinhard kept KevenyU boots, and a loaf of tr/tt/f sugar that belonged to him, De Reinhard put, and I saw it, into Mr, Are!f,y*s basket. Before that, he wanted to put tome tea in, whieh belonged to Keveny, but M*LeHan prevented him, saying he had no occasion for tha{^ 1 do not know whether M^Lellan perceived it, when he put the sugar in. We re-embarked the next day^ and Mr. M'Lellan r^d more papers and tore them ; but I cannot say whether they were Keveny^t. Before we went, I heard Mr. Archy tell, to bum the small canoe; but I do notknow for what. There was a great deal of blood in it, but I do not know, and he did iiot say, why it was to be burnt. Before embarking, at thv waterside, I received orders from De RMnl'.ard not to speak of the death of Keveny, and I promised him that I would say nothing about it; but I do not know that M^Lellan /was there at that moment I do not know whether M^Lellan and M 303 Reinhard met •• if they were friends^ but they ate together, and voyagei together, and did not quarrel, and they remained together in the oanot, ai usual, in the bar of the bourgeoii. That evening I went to bed bafisr^ the others, and I do not know whether they slept together* ><•■ Upon his cross-examination by Mr. Stuart^ no new fact was extract* ed, except he was talcen inta custody by Captain D^OrMonneni^ bqt at the time did not know why^ and that subsequently he was examined by Captain Mathey, and {made an aflRdavit before L " Selkirk. The fol* lowing, it is believed, comprises the admissions in favour of the Pri« •oner : — That Mr. M^Donell treated Keveny kindly, (page 29,)— that it ii emtomary in that country for the Indians to have arras— that Mr. M'Lellan*s was a light canoe, (allege,) and that in such canoes it is not usual for the bourgeoi$ and engagie to converse together— that it was requisite for De Reinhard to remain with the bourgeoit, as he could not paddle, and th^re was no room among the voj/age«r5— that though Dc Reinhard took bis meals at the same time as M^Lellan, there was no ta- ble, but clerks and partners sat in a circle— that M *LeUan coold not leave De Reinhard in tliat place, as he must have been starved to death —that eight engages and two bourgeois generally went in a light canoe, but that they were fifteen— that he heard M^Lellan say, he could not take Ktveny, because his canoe was too much loaded— and that, as h« could neither write nor read, he could not distinguish Mr. KevenyU par pers from M^Lellan^s, nor from those then in his sight. v '. - > Jban Baptists La Pointe, being sworn, related briefly thecir* Gomstances detailed in pages 13 and 14 ; when Mr. Mtomey-Generai asking \! Joseph shewed any intention of killing Keveny. The Chi^ Justice (upon Mr. Stuart objecting,) said, " first prove a connection to *' exist between the Prisoner and this Indian^ before you examine what ** he did." The witness continued the narrative to the arrival of M*LeU ian*s canoe, which he described as on ihe fourth day, (instead of Aejiftk as at the lest trial,) and continued as follows C'— La Pointe. — Cadotle, who was in the canoe, where M^Leltan wav, enquired of us what we had done with Jose and with Keveny. Faille replied that Jose wanted to kill Keveny, but he had been prevented— upon which Ca(fot/e said, '^ you blasted blackguards, it is false," also, " that was not our business," and that, " we deserved a threshing.'*— Upon this Jlfr. M*Lellan landed, and beat us with a canoe pole. Af* terwards we embarked in Mr. M^Lellan's canoe, and he then told nf , that he had beat us because I had beat the Indian. The Prisoner and Cado/(e were in the canoe, and three times nearer to each other than to me, when CadoU6 said, " it is false;" and then Mr. Ardiy landed ani 111 I :i >jij!il i Il;r: Hi 504 H > f ■ nJ' J- nil' '•Hi .M ^t Ui. 1 Hboutd think that Mr. Ardiy heard the cnnversution b«!t\veer< me and Cadotte ; he was near enough to have heard it. The same day I heard MarnvilU^ Vas$eut, and the Boi$-bfiiles speaking ubont Icillint* Kevenyy and dividing hia things amongst themselves. One said tbnt hi* would have hit hat, and another said, he would have his boots. M^Lel- iari was present and might have beard as I did. The gentkmen in the canoe /attgAetJ at it. -; .. ^ »fj-.iirt .•,».', ii.'»"j'i'.' k>u.I ^ . ' :^".-ii( .j Chief Jutliee Sewell. — Did the Primur laugh ? ^ .'i i ,,a : La Pointe. — Yes, for certain, when Mainvilte said, that lie wotild have his hat, he laughed as the others did. They assuredly npoke several times of the intention of killing Keveny ; it was almost Ike only subject of their conversation. Chief Justice Sewell. — Did the Prisoner sny any thing at that time? La Pointe. — Mot to my knowledge, but he laughed at rt. After we bad met with the people of Swan Krver, I heard a Ilnlf-breed enquire, " where was Keveny," and they said^ " he is above the Dalles." A Hulf- breed then asked, *' how does he get his living," andafter the answer tvas given that, *' sometimes he stole, and sometimes he bought,'' the Half-breeds uttered a cry of joy, exclaiming, *^ he shall not steal muck " longer.'' Mr. Arehy was there, hut I do n:)t know whether he wan near enough to hear this conversation, nor whether he was in the canoft at that instant, but, if he was not in it, he was noi far off, far we imme- diately left the shore, and he was in the canoe when we pushed olF. Before we met the people oiSwan River, De ReinlMrd said, " I will take *^ good care of him," (Keveny ;) *^ it is I who will kill him<" Keveny was not on the island where we Vt him. After having landed there, we re-embarked, and De Reinhard not being yet on board, one of the Half-breeds, said to JIf 'Ze/Zan, that it would be De Reinhard who would kill Keveny^ and M^Lellan answered, ** De Reinhard is too much of a ** milksop, he it not alert enough to kill him."* Thence we returned to the DalUsj and from the time we met the people of Swan River, down to the time we got there, the people were dull, and I heard no conver- sation amongst them. The witness then narrated the finding Keveny, and their subsequent departure, leaving him to be conveyed by De JleinAard, 3Iainville, and the Indian, but said that he knew no reason why these men were left, but he heard M^Lellan say they were to bring on Keveny. He consid* ered that Mr, Keveny aiu] his baggage might have been taken in M^Lel- lav?t canoe, which he described to have been lightened by unloading a « M De Reinhard ut irop palOt, il n'e«f pat attest alerte pour le tver." 90B quantity of wild rice. The exciamHtlon in *b eanoe on hearing the report of the gun, (pagt 34.) he attribute Detmmrait, and that M*Lellan rat beiveen him and Detmarai$, but i couM m>i i*^ whether he heard it or not. He (tlie witness) did not bee any tbinf '^id, either by tlie Prisoner, or any other bourgeou^ but thai at that mo nent, thef appeared to him to be more nerioua than unual. He contlaued hit na< rative to the arrival of* the small canoe* (page 34.) but at he could mn^ My whether Mr. M^Lcllan went to the water side, the conversation v ait not gone into ; he, however, said that when be did Am over that Kevtttg wax not with them, he did not bear the Prisoner express any turprite^ nor did he put himself into a passion, though " when he thought Keveny ** had escaped from the North-West people, at the time he wat left on " the small island, (pages 32 and 33.) he appeared to him to be in • ** passion"* nor " he never heard any reproaches or expressiont of anger ' ** against either De Reinhard, Maintille, or Josi." His examination proceeded as in the middle of page 35, with the addition that " the " clothes were washed before M^LellanU tent, but he taid noihing a« ** bout it, neither good nor bad.*' In addition to the sugar, he taw Keveny^s boott in the Prisoner's tent, and he alto heard the Prisoner give directions to burn the canoe, (page 802.) " Re said in my pr6- ** sence, and that of others, and Faille was as near as I was to the Prif> *^ oneff. Who spolce at loud at t speak, " Burn the canoe, because it ** might give some knowledge to the Jndton*, or to tome Canadian^ *^ who might be passing by, of the murder." * Hit account of tbtf de« etruction of the papers, though very poiitive, differing materially from Faille's (page 302.) it it given, together with hit tettimony that he re- ceived orders from the Prisoner to conceal the murder. = jj --^fi^ic' La Pain/e.— I saw De ReirAard open Keveny*s chett, but I do not know whether he opened it with the key or- not. I can tay upon my oath, ilM. the papers were Keveny's papers^ because I saw them. They were taken in the box by the Prisoner, which hef carried himself to th* jfire. De Rtinhard did not take tlie papen mUoftht boxi and M^LelUn carried it himself, and after part of the people were gone to bed, b« examined the pipert, and threw them into the firie in tuccession as ha examined them. He wat not in lut tent, but at the fire, and De AeM* hard wat not there then. I can tay upon my oath it was KevenyU box., M^Lellan had not burnt all the papers, but on the following day ht was still reading tome of them in the canoe. He read one, and laid to * In Jiar^ he testified that at the timte M^Lelkm ordered the Jiainoe to be burnC^ ht laid something else, but ^e (wilnus) did not hear what It wat, » W.^. I 111 ;. 306 (ht flfclMji'^cflf, ** it ti very Well that Kevinif ii dBMif, beckoM (ilifetvtWc the paper) he Mi! the pbWer of getting Klng*$ troojti to go and tike yoAr land* it Hed Utter.** One of the Half-breedf nld, '* that ii one of hlfc jtXi^ ^tti 9** k^d lie inlWered, '• yc$** I mw Mr. Arthy dMtroy the l^jtcfriVrAeh He Wkt fn the oanoe, be throw them into the river with •VuH'ei to WiXn theiH link. Before starting In the morning, M^Lttlan <6A^ tne hbiiokfiM^ of this murder, sayli^g, " take eare not to ipe6k of 9ik miili'diir of Xe^eVi^, for you and the rettt of you would be punished ty tti.** He bifd itiK) that the crimo was eqi^nlly attibutable to tu, and thftt'tv'e'^auld be jpiinlsbed, and Cadottt told us that we should bo hung. ievei^l ttioaeB allleirward ii J. • Via '■■ ,'• *»>• *'dt uu-M '■ SMttrday, \3th JuMf 1818. U^DK bis crOM^Jfamfnatton by Mr. Vanfchon, he de^KMisd, Up €• the iith^ of his discovery by Mr. M*Lellan, nearly as 6n the forttter trhlt ()Mg:e S7^) stating, in addition, that upon their retttin •fuir'firsl leaving Keveny^ seeing a Jbig tfpon the island, they {Faille ank'tiikt'ijf) ^nted Jis^'to put to shore 'and take him on board tiigain, bnfhe sAik the eanoewas toomnall,* toyiitg, \paddU^ paddte, (which WJis ihe'Mly Frineh b» ipoke) ahd they doing so, he steered the cano« from the islalnd where Kevetiy was. He said, that '* Mr. Archy landed the llrM, ftUd it ** iiras certainly 6eybre he landed that ithe conversation befw^n Mr. *' CAdoite ind the witneis took place ;" ( pitge 80S,) aind afiso that at the time Oiidotte pointed out the Indian, and said It Was ut 'Who h^ beat ifos^. fo aniwer to a solemn enquiry upon his oath, wbetHiv on ieelhg the Indian, he did not say, it was Faille who had beat him, ttid whether FaAlk did not say, it was him ? Re taid, that he did not, nor . w>. * The witness explained, that the canoe in which they first received Kemny having been UroVtint Joi^ tad traded for thik, whicbwii diitfOtlkr ^J^eytMge, * • \--.r , 30T did he bear FailU ny that it wai him, but that he then aai«l, •' It was I ** whp beat him, because bo flred at me.*> He waa reminded of hi* oi^h, and the (juestion put again, but he gave a limilar reply. In an- awer to a queftion from the Chief Jiuliee, he laid, that in the cianoee the hmirgeoit oonveraed among themielvei, and the mgagii the fame. That except on budnefH, the bourgeois did not tpeah to the engagit^ and that it waf the guide they addressed when tbev had o^oa^ion tQ j^iye.orden. He admitted that it was not easy iq paddle and talk at th^ eame timje, bijt ntill ipaintained that in the canoe they dir bourgeois) bar — had he been paddling near the ^teersq^an, or near the foreman or guide, but although examined by the Court and various counsel, he did nut appear to render his posi- tion at any time intelligible. He said, that he had almost always M*LeHan in frpnt of him, sometimes facing him fully, and sometimes sideways — that the people very often changed places in paddling, and that he changed /»'«, as aleo did Mr. Arehy^ but he could not say whether as freqi^ently aa he did. In answer to a question frcMU the Chief Justiee, he mid, that when JMainville said he would have Keveny's hat he was in the rank immedi- diately befpre the witness, and Vatsewr, at the time he claimed the boots, WM in the bourgeois^ bar. Being examined by Mr. Vanfetson on tliis point,^he said, that when a canoe was overloaded the voyageurs paddled in the bourgeoU* bar, and he was certain at that time VaateurvfM there. That in canoes, such as the Prisoner's, the usual complement was eight pad^jllers and two or thr^e bourgeois, l>ut they were fifteen. He also declared, that the time of finding Ker^y he did not hear De TXeinhard say, that as Mr. M*Lellari's canoe vas too much loaded he would .remain with Kevcny, nor did he hear WLellan say to De Rein' hard that as he had taken him prisoner he aad better stop and come oa with him in the small canoe. ■•■■■"1 • ■ 1 '■ • : Mr. Varfelson.— In what part of the canoe could you have put Ke- leny and three others^ whilst Vasseur was in the same bar with the 6our- '««/»? .. . , ,;':' :; .. .;, „ ; . / , ■ La Poiflte.—JCevmy might liaye been put between the two ranks of paddlers, but it is notusual to put any body between the peddlers, or else in the bottom of the canue. He would certainly not have been a( his ease, but he miirbt have been put there. i? ■' i I 11 I..1 !ij! JKh 308 ri ij'ii Mr. rar/e/9«n.— Then, you mean to say, upon your oath^ that in « canoe like the one in question, which had already fifteen men and their baggage on board, you could, without danger, take in addition, De Reinhard^ aqd thru others^ with their bae^ge, and make a traverse, Upo'i your oath, is that true ? . ^ Xki Pointt. — I did not mean to say that the /our pould have gone. If we had taken Keveny and his things, it would qertaiply have been dangerous to have made the great traverse, if the wind bl^w, with tlfia canoe so much loaded, but till then it might h<^ve done, It is dangerous to traverse the lake at all when it blows. '/ •- " ' The witness was then examined relative tp where the fire was, and he deposed, that he did not see any before the bourgeois* tent, and had there been any, as usual^b^ must bave se^n it, and that the papers were read by the evgages fire. Also, that at tbe arrival of the small canoe^ Mr. M^Lellun was ftbou^ forty or fifty feet distant, bvit he could not say whether he was among those who came forward. He confirmed his testimony relat'^ve to ^he Prisoner and De Beiqhard taking their meali together during tl^e \vhol^ voyage. Mr. Van/eUon.— 'Are the partners generally pell meU with the voya- geurs and half-breeds, or in tbe^r tent with the clerks and interpreters. La Pointe.; — I can not say that the bourgeois and e^gft^es are wvfilly together. The partners, with the clerks and interpreters, take their meals together, and the engages theit*s at theit fire ; b,ut they come from one fire to the other, and joke with the engagis. Mr. Fo^elson.— Could Mr. M^Lellan have ^ken De ReirUiard^ MavnvilU^ 9fiA Jfose^ prisoners, against the will of the half-breeds and Indians? ; ', . ^ La Pointy. — If, the half*breeds and Indians had opposed it, be could not have taken them if he had wanted to do so. Mr. Vanfelson. — Is not Mainville a half-breed^ and Josi an Indian } La Pot'n/e.— Certainly^ andl th« half-breeds and Indians are near re- lations.^ _ ; _- .,' v ■■-.-. ' ■ :'^"^-^' , ' -^ : ■ ':''■-. . , Being examined as to the conduct of (^opf. D'Orfot^yient, he said, that aficr De Reivhard was taken by him he did not see them eat to> gether, or of^en see them in the tent together, but they might have done so. A very particular investigatioi^ took pla^ re^tivo to the white sugar, of which he gave the following account. La Pointe. — Before the time that they divided K^enyU th.ings, Mr. Arthy had nothing but Indian {mapli) sugar. The loaf ot white sugar J. never saw in his tent, but I saw a half-brced put it into his basket pear his tent. I do not know that the half-breed spcke to him at t];ie tSlQt that he put the sugar ia the basket. It was the next day, and not 309 tbe lame evcnl^ng, that I saw the gentlemen take tea ^vlth white sugar, which their servant put into it. It was Rochon, liis servant, who told |ne that M^Ldlan bad not any white sugar, and I had seen none before.. It was Roe/to» who broke the sugar. " ■ '. ,. ' The witness continued, that lie did not. AvGVSTiN PpxRiER dit Ds LoRG^ was next sworn, and as his evi- dence is flatly contradicted on tbe defence, it is wholly given. Poirier dit De Lorge. — In 1816, I was in the Indian territory with Colishe Ducfiarme in a brigade, and I met the Prisoner at the bar, be- low tlie Dalles, in the River Winnipie. I heard Mr. M*Lellan ask Dudiarme, whether, on our way, we had heard any thing of Mr. Keve- ny, and Colishe answereii, ^^ yes, that he had seen and spoke to him.^ The Prisoner then asked, " how does Keveny do to live ?" Colishe an- swered, *' sometimes he purchases victuals from the Indiansfsometiirses ** they give, and sometimes he steals them.'* Upon which M^Lellan said, " very good, 'tis well, he will not steal a long while ; to-morrow *' by this time, his business will be done, perhaps he may never see the ♦• sun set again." The Court was then adjourned for half an hour. ITpoQ re-assembling, the Prisoner's counsel stating that they had no (questions to put to Poirier dit De Jjorge. Frederick Damien Hsvrter was sworn, and deposed, that he was at Bos de la Riviere in 1316, and that be knew the Prisoner and Mr. Alexander M^Donell, whom he believed had gone away to the Hocky Mountains. He did not know whether those mountains were in fhe United States of Amerita. 'Witness knew the hand-writing of tb« I t jO] 1 '■S % % t I *iH li 310 ru= Prisoner, «tqd being quesUoqejl wlieiher be ever haw in a letter V>y IbJng i^ tbe Prisoner's band-writiog, Mr. Sluart objected to the que^- i^Q^ as illegal. The Attorney General contended, that baying proved Mr, 3VDontll^ to whom the letter was addressed, to be beyond tUfft liocky li^l^ountains, he was entitled to put it, but the Court sfiid 'till the Crow9 proved that he was beyond the jurisdiction of this Court s^eofi' ^ry eyitlienoe could not be received. Mr. Solicitor Gerural contended, from tbe pcculisfrity of this case, enough had been proyed tp ponstitute t]t>is set!on4ary evidence the bpst which the nature of tb.Q C9se would admit. T\^b pifitf JwUce m^t *' the answer is clear* if you pnly re^ ** the statute upon which the indlctiqent is founded,'^ an«jl tbep ri^ad tbe i^^VS^ providing that offences *' shajl be tried in the sam» manner,'' &c. Attornty !Qaieral.—Ii is not proved by tljie witr^e^p, but tb?t Mr. M^Donell is ip tlie United Slates, ^ut I sboulil contend tbat, in prpyipg he had gone into an unexplored cou^i^ti'y, we b»vc proved sy^cij^t to let in the evidence we present. We wi^h to prove by a person who saw the letter, what it« contenls are, and we oftt-r this as the best evidence in the absence of tbe letter, and under the iinpo^Hljility of prpducing M*P9nell, to whom it was addressed. ' Chit/ Justice Sewell. — The ba! * . jittomey-Oeiieral. — I submit that we have rrota 'sh^n sufBcStfnt to entitle n« to produde evidence of the donlents of this letter. ThisXvit'- oess iai^ a letter brought by Jost, one of the thi'eie persons in ivhtfSfe comfpaoy JTerenj/'was ll>ft, the last time he was i^en, ahd that it ^vas'not only brought in the'rtionth in which iLcil^mj/ was murdered, "but toriitik ■and 'M^ in that mdrith. We have sVw that (be day ToMowing o let- iier, (whether if/ic letter, is, I thfrrk, a i^uestron for the Jury,) was l»ecti by the wftrtess 6n tlie table of Mr. M^Donell, aildresf^d to the proprie- tor ib charge of the post at Bas de la Riviire, and that Mr. MWdneU m-au tliat proprietor. We have iJhewn that it this letter, written by lirl ' J 1:5 til 1 m m 3\$ i'li Mir. Dease, there was a poslseript in the hand-writing of the Priimer^ and we have finally ehewn, that, according to general report, Mr. Jlf Do- ne//, to whom, as proprietor in charge, the letter was addressed^ and into whose po$t€tsi* dictment must fall. ■^. ■ ^ Attomey-Gmeral.—li would be perfectly nugktory to is8u6 a subpotnA to be served beyond the Rocky Mountains. I imagine no person, ex- iepting Sir Alex. M*Keniie, would be found to undertake the journey. Chief Justice Sewell. — I cannot help that. If the legislature has don^ tight, or if it has done wrong, in passing this aCt, I am iiot to enquire. .We sit here, not to make or amend laws,* but to administet sucb «s are fnade. Tile Witness continued that He saw WLellan at Red River, after be bad heard of the death of Keveny, and was informed by him that h6 had left De Reinhdrd at Lake La Pluie, to send him word to Fort Douglat if Lord Selkirk advanced towards Lake La Pluie. Also, that he saw a trunk and portable writing-desk at Red River, belonging to Keveny* having brass^plates on them, miarked with his naine. The Fi^isoner also told witness, that De Reinhard had sent him an order to buy a horse fcNr him, and that use could be made of the things which w6re m Keveny^s trunk for that purpose, as De Reitihard had property enough belonging to him, without taking goods from the store on his account. Mr. flieur- ter also added, that wanting to take away De Reinhard's trunk to where he lived, the Prisoner told him he had better take Keveny^s trunk and desk, for fear the English or Red River colony people might soon come io the fort and recognize t^iem'. Upon bis cross-examination by Mr. Stuart, the witness could not recollect whether any body was present at these conversations, but it might be the case, tie admitted that whilst in the regiment De Rein- hard was a friend of his. 3Ir. Stuart enquiring tchere it was he received Keveny^s baggage, the Chief Justice suggested that he had not said he received it, but that he had seen a trunk and desk at Red River ; the question being put again, Mr. Heurler answered " at Basde la Riviere.''* [Mr. Sludrt assured the Court he would not put an irrelevant ques- tion, but the examination of this witness (to whom he had a series of 4uestions to put) would {^rove to be very important to the Prisoner, and his counsel must be permitted to take their own course ifn conducting it* "irhe Chief Justice remarked, that the Crown, the counsel for the Priso- ner, and the Court, he trusted, were equally desirous of strict and im- partial justice, but if a real or imaginary difficulty appeared, the Court who could have no object but to render justice to both parties, must understand so that it rai^ht not, by misconceiviag, ftiill into an error.] ':! i it; II !'• ' Ml '■K r. I I If it I II ■'I '11 11 314 Jtfir. WeurltT continued, that between the i 5th and 17th September, 1816, he there received a trunk and a portable desk, with the name of Kcveny on them, from Jo»€^ who said that having met J)e Reinhard^ he had desired him to deliver them to the witness, but that the PHsontf was not at Bas de la Riviere at the time. He further stated that the same evening he sent them into Mr, M^DonelPs room, who refused to iteeive them, although told that De Reinhard had sent them, and the nejct morning when Mr. HeurUr was out, they were sent back to his room, and enquiry being made why they were sent back, Mr. M^Donell told witness that a party would be going to Red River in a few days, and he might send them there, which eventually was done, the witness taking his departure for ReJ River in the same brigade. Witness re- mained at Fort DcfUQlas about ten days, and the conversation witli M^Lelkm {page 313.) occurred two or three days after bis arrival there, and that was five or six days after reaching there himself. Mr. Heurter stated that he did buy a horse for De Reinhard^ whose wages enabled him to keep one in that country, paying for it, according to the custom of trade there, in goods. He also said that he never received an order from the Prisoner, for six yards of cloth. JocBLTir Waller, Esquire^ (Clerk of the Croton) proved the bbcors of De Reinhard^s conviction for the murder of Oi^xir Kbtbnt, which being read, closed the case on the part of the Crown. DEFENCE. NiCHOLAi DucHABHE being sworn, deposed that in 1816, he was the guide of a North-West brigade, destined for Swan River^ in which was a man named Poirier dit De Lorge^ whom he had known for ten years ; that whilst they were together they met the Prisoner with four- teen others below the Dalles, that on seeing them they put to shore, 3fr.^rc%said, " Good morning, Ducharme, how long is it since you " left the Grand Portage P* to which he answered, " it is not a little ** time, as the winds were frequent and contrary.** Some unimportant conversation being detailed, Mr. Vanfelson proceeded to question wit- ness very pointedly, and his answers being in direct opposition to the evidence on the part of the Crown, both the interrog^atories and replies are givep at length. ., S^;, ' , V .^ ^ ,Mr. Fan/c/jon.— During that time did M^Lellan say any thing about fievenjf } and if he said the least thing about him, what was it ? ■■ ■, V. .' 315 DucAarme.— He did not say one single word to me about Keveny^ nor to the people all the time I vim there. Mr. Vanfehon.-'At you were the gui4e, if the Prifloner had said any thing about him, it would have been to you ? DtieAanne.— Yea, certainly, but he did not «ay a single word about Kevenjf. While ItPLellan was taking what he wanted from my canoe, a Half-breed came and asked me " whether I had seen Keveny» and I told him that I had seen him above the Iktlhs,^^ I have said that for ten years, but, I believe, it is twelve that I have known D« Large. He always bore an indifferent character amongst us, a very bad character« ' Mr. Vanfelton. — According to all that you have known, and have seen, of De Lorge, is he worthy of belief, or would you believe him upon his oath? I)u«Aarfne.->No, I should not believe him upon his oath. Mr. Vanfehm. — At the time that your brigade met M^LellanU ca- noe, did he ask of j/au, " Colishe^** whether you had learnt any thing on the way about Keveny ; and, if you replied, what it was that you said ? Ducharme. — No, he asked me nothing, Mr. Arehy did not speak to me about Keveny. Mr. Vanfelson. — Did Mr. Archy ask you, " how Keveny managed for his living ?" and did you answer that ^^ sometimes he stole, and sbme- times he bought victuals ?'^ Ducharme. — No. not at all ; neither one nor the other. Mr. Vanfelton. — Did you hear M*Lellan say " good, very well, he ** will not steal a long while, to-morrow by this time bis business will ** be done,'' or any thing else about Keveny. ' -^ Ducharme. — No, not at all, Mr, Archy did not say a single «'ord to me about Keveny. I am sure of it. Mr. Vanfelson. — I should now wish De Large to be brought into Court, that the jury may be satisfied the witness on the part of the Crown, is the same that this man has reference to, when he says he i5) not worthy of belief on his oath. \ . .< in I J i) I Augustin Poirier dit De Lorge came into Court, 't' Mr. Vanfelson. — Is this De Lorge, of whom you spoke ? Ducharme. — Yes. Mr. Vanfelson. — At the time the /wy^Awcrf*- enquired, "whether " you had seen Keveny,*' and that yon answered, '* yes, he is above the Dalles," did the half-breeds shout for joy, and did they say '' that *' he would not steal a long time ?" Ducharme. — No, certainly not. That was all that was said. There was no shout amongst M'Lellan's people, uor any at all. {JIfr. Vanfeh !''J ;;n n f-^-' 51G ^ »(in begged the Court to notice that, as it referred to La PointeU te8tt> mony (pageSOk.)} Mr. Vanfthon. — By what nanqie are you known generally in the In- dian country. DtM&arme^— I am generally known ip the Indian country by the pome o{ Colishe Dueharme. •» ^' ' Upon his cross-examination he admitted— that he had been for twen- ty-six years in the service of the NorthrWett Company, by whom he VTM well paid, and remained with them — confirmed bis former testimo- ny, that M^Lellan did not speak to Atm, or any one about Keveny— that thougb in going down he saw, as he supposed, the deceased's tent, be did not tell Mr, uirchy he bad seen it, nor say a word about K»v,eny, Being questioned as to how he knew De Lorge to be a bad character, h^ replied, he generally had that character, and he considered him to be so, as he had deserted from his canoe. — [The uiUornejf'General enquir> ing what he had dant that was bad 1 The Court said, enquiry might be made generally as to his means of knowing his character, but not as t^ particular apts. Mr. Situtrt disclaimed »ny wish to oppose the mode of examination, although illegal ; adding, that after the broad manner iq which De Xorge had been attacked, he (oqld not pomplain of any ques- tion by which the Crowip might endeavour to support its witness The Chief Jfustiee again luid down the rule of law upon the subject, explaining it by another relative to a defendants character : ^* If a defendant f^snable ** a prosecutor to examine evidence to character, by calling witnesses in ** support of it, even then the prosecutor cannot examine into particu- ** lar facts." The Attorney-General dissenting from this, being an appli' cable authority, some further conversation took place in the course of which Mr. SfitaW complained of the Attorney-GeneraVs representing that it was tndy because he deserted, that De liorge was considered a bad qoan—^tatfng, that he had been pjroved to be unworthy of belief vpon oath, by this vjritness, whose pb^racter would be supported by the most respectable testimony. The Chief Justice briefly went over the ground again, concluding : " If you have fifty witnesses, bring them af- " terwards, to attack those of the Crown, or to support your own if at- *' tacked, which is an alteration froin the practice heretofore, and I t* think a very proper one.*'] The cross-examination being continued, the witness stated that he saw the tent about nine in the morning, and met M^Lellan about two in the afternoon i that be was not surprised at seeing a canvass tent, as they are common among the Freneh^ thougb not among the Indians ; that he did not see any other that trip, and he did not tell M^Lellan the circumstance. 317 <' [Mr. Stuart proposing to call Colonel Frater to support Dudiarmt^^ j^aracter ; JMrr.»So//ct7or-6'eneral remarked that the course was novtl^ tho* perhaps in this catie very necessary; l^is learnet) friend's witness appear- ing to be an eyvcplion to the general rule, which considers evidence aad character to be good, till they are attacked ; and being «o, he supposed a good character was to be given, from a conviction that tlie contrary might be attempted to be established. Mr. Vanfclsoti adverted to Du- charmc being a stranger, and contended for the right of shewing his cha- racter to the Jury, to which the Court assented, the Solifitot-Qeneral •bserving, that he dare say, it >va8 very necessary.] Colonel Alexander Fraser being s>vorn, stated, that he had known Nidiolas (commonly called Colishe) Vucharme upwards of twen- ty years, and tfiat his general character was most excellent. — Upon be- ing cross-examined, he stated, that he had been for almost twenty years, jbut was not now, a partner in the North-West Company, and had been in the htdiari territory more than twenty years. FRAN9PIS Tattpier was sworn, and deposed, to the general bad character of De Lorge, whom ^le had known for fifteen or sixteen years, stating, that no one had a good opfnion of him, but he was generally looked upon asAine in whom it was irnpossible to have confidence, or to believe even upon his oath. He described a ligj^t canoe, (allege,) to be about twenty-seven or eight feet in length along the bottom, and its u- sual burden to be eight paddlers, and two or three bourgeois, with their provision and baggage, and that it would be impossible to make pro- gress with sixteen men with baggage and provisions — and that even to follow the windings of the shore would not be safe. The arrangement of a canoe he thus described : F. Taupier;.— la each canoe there is generally a guide who is mas- ter of the canpjc, even when tl)e bourgeois are on board. When there is no guide it is the front man (devant) who is master. If the bourgeois were inclined to load the canoe more than th^ guide thought right, he has power to prevent it. If tjie gvfide would not take a man on board, he can not go, for they If now the route, ^nd arp always masters in the canoes. When the gentlenoten haVe any orders to give, it is to the guide, or to the front man, (devan/.) I never knew the gentlemen and the men to converse together on the way, unless from necessity, and it is not the custom for the men to <;batter to one another, for by talking they are prevented from getting on. It is hard enough work to paddle, and whilst paddling, it would be necessary, to speak very loud, in order to junderstand one another. If there were three men upon a bar they could 710/ paddle. "• < Chief Justice 5^«tcW.— Of wliat size is a bar ? M 1 1' I '■41 318 h .') i F. Taupier.— That of the bourgeois^ in of the size ot/our feet. Those of the men arc, three feet and a half, next to the bourgeois, and dimin- itbing from one to the other. I am a canoe-maker. Cross-examined, he stated : *' Alt the servants of the North-Went ** Company were good characters, he knew only De Large who wai *' not ;" that he was " six or seven years in the service of the Northi* *' Wef^t Company, and then deserted ;" and that ** he was not disdiarg- '* ed for bad conduct.'' Being asked what he understood by detertion, he replies, ** it appears to me a man deserts, when two sleep together, ** and in the morning one is found to be gone, and to have stolen the " hat of the other ; I slept with De Lorge, and when I woke I found he " was gone off, and my hat with him." — He also stated, that he never taw more than eight men, and the bourgeois^ in a canoe like M^Lellarfn, Mb. James C. M'Tavish was sworn, and deposed, that being for- merly a clerk to the North-West Company, he knew De Lorge, and had from his situation, means to know his general character, which he des- cribed as being that of a very disaffected servant, and not trust-worthy ; indeed so bad, that he (Mr. JIVTavish,') would not believe bim upon his oath. Being called upon by the Court to explain what he Uicant by dis' effected, Mr. 3PTavish said, " he had always found him a displeased ** and discontented servant — dissatisfied with every thing that was done ** and extremely disaffected to the interests of his employers." Upon bis cross-examination, he stated, that they always endeavour- ed to select the best men they ronld for employment, and that De Lorgc having been some years in thct, service, deserted and entered that of the Hudson's Bay Company, or Earl Selkir'- before his engagement with the North-West bad expired. — In answer to a suggestion tliat' a person quitting the service of the North-West Company, and entering into that of the Hudson's Bay Company, or Lord Selkirk^ would not stand high with the former — Mr. M'Tavish said, that he would if he had fmished his engagement like an honest man, but not otherwise. He stated, that persons generally enter the North-West Company's service for a term of years, before they go up to the Indian territory. — Mr. Attorney-General intimating, that it was not unu«ual for dissatisfied or disaffected persons to quit the service previously to their indentures expiring, Mr, M'Ta- vish declared, that during eleven years that he was employed by them, he had known but few persons do so ; and among those who did, but very few who were honest in other matters. Enquiry being made how • person dissatisfied with their service could be relieved from it, except by what Mr. M'Tavish called desertion ; he replied, " very easily for " if persons go uo to the Lidian territory, and do not find it suit them, ^ . 319 " upon applying to the cotnpany, they are permitted to return as pas" " itngen in the Arst canoes that are goino; to Montreal." Tht Court was then adjourned till eight ohlock Monday morning. Monday y \Sth Juntf 1818. ''! ■ Mr. Jean Crebassa being iworq, stated that he was, and had been, a clerk to the Norlh-West Company for sixteen years. That in the summer and autumn of 1816, being stationed at Bai de la Riviere WinnipiCf he had a knowledge that towards the latter and of jiugust Keveny arrived there a prisoner, in custody ot Charles De Reinhard, and lome others, at about two in the afternoon, and departed the next morning for Lac la Pluie, whence he was to be sent on to MoiUrealy by the usual route of Fort William. The persons who went with him were named Lacerle, La Plante, Michel Martin, Vassall, and Vaudrie, nei* ther Josif De Reinhard, or Mmnville, (who was at the fort when he went away) accompanied him, and, that when Keveny arrived, there were not, w^ith the exception of two old Canadians, who worked at the farm and in the garden, any persons but Bois-brulet at Bas de la Riviere, which was distant from Lae la Pluie about seven days march for a lights and ten for a loaded canoe. Mr. Crebassa continued, that four or five days after Mr. Alexander M*DoneU arrived there, staid one day, and then proceeded to his usual post " Red River,*^ the capture of Fort Wil- Ham by Lord Selkirk not being known till four or five days afterwards, when the news was brought by Mr. Stuart, who came purposely to com- municate the information to Bas de la Riviere, and the other Norlh-West posts ; and the circumstances being communicated to Mr. M*Donell at Red River, he arrived at Bas de la Riviere six or seven days after the information had been forwarded to him. - Mr. Stxiart. — Did the capture of Fort William occasion any extraor- dinary feeling at Bas de la Riviire ? . , ' Mr. Crebassa. — It occasioned great anxiety lest the ordinary supplies should not come, as Fort Willinm is the usual channel through which supplies come to the interior, and very grent injury was apprehended to the trade. Personal injuries were alno anticipated to the partners, and others accustomed to trade with the Norlh-West Company. We appre- ^liended great danger from the want of provisions, as, if we did not re* !• ). / i I .•J20 ceive our usual suppliea from Fori William, \u\\\n'^ no merchnndrxr, \i'k could not barter with the Indlan$ ; and, it' wo hud not wherewith ta buy food from the Indiani, we must certainly starve. We were also in want of nets for fishing, as we depend n good dcul on tliut source for supplies iu that country. It was in consequence determined to fit out a canoe, to go in the direction of Fori William, and see wlinther any cr< noes were coming ihto the interior. This canoo proceeded the day after Mr. AVDoneWt arrival, and, as it waH considered an ohject of Kufricieni impoVtance that tfre principal pilkrtncr at the station ^Itould go, RVLel' Ian went with it. There also went in the canoe, Cttlhbert Granl, Jo- $eph CadolU, Charles De Reiiihard, M^Ltllan^i body servant, Roehon^ one ttorrain, Miehti Martin, Li Vaiieur, La Ptantt, Vassalle, Vaudrie^ and some otbefs, I believe. [In answer to an observation from the Chief Jaslict, that he had said Midiel Martin went with Keveny, the witness iiaid, ** Hedid go with Ke- ** veny, but when Mr. M^Donell put Ketc7i^ in charge of Faille ami *^ others, 3Iartin returned to Bas dc la Riviere, and now accompanicti " Jif 'ie//on.»'] Cfiief JusticeSewtn.—'DU] Maiiiville Qo with ihtm? Mr. Crehasaa. — Yes, he did. Mr. Crebassa being questioned by Mr. Stuart, continued that a canb* can average forty-live miles per day — that M^Lcllau returned to Bas dr. la Riviere (twelve or fifteen days after leaving it) without De Reinhard, and, on the next day but one after his arrival, he went to his station dt the Red River forks. Witness knew Heurter, a clerk in the Norih-West Company's service, who hud left Bas de la Riviere before M^Lellan had arrived there, in a^ brigade for Red River, where he w^as to winter, and the first time he saw him afterwards was at the Forks of Red River in the March following, and he was then in the service of the North'West Company. Mr. Crebassa stated that it was not usual to.have A'an(I-ct{^« at the North-West posts, nor were there any at Bas de la Riviere whea Keveny was there to his knowledge, and, as chief clerk, had there been any, he thought he must have known it. When Keveny first left Bas de la Riviere witness heard M^Lellan tell Laeerle, and the others, to take good care of him, and treat him kindly. Upon cross-examination the witness stated that Keveny was appre- hended by J>e Reinliard four or five leagues higher up than Bas de la Riviere. He repeated tliat there was no other object for sending th« canoe, and admitted that each man had his gun, according to the custotB of that country. M^Lellari's directions to be kind, &c. to Keveny, H« said were given to the Bois-brules, who are half Indians, of those h9 said Laeerle had beea at Montreal before, but for the others he did oo( 321 knoMT. The Allornnj-Gcneral remarked, that hit having beeii there could not huvu taught him much of tho wny, us he went when a child, ito which Mr. Crtbasm suid, '' lie went down when a child, and returned *' when n inun." Ma. .1\MSH C. M'Tavish was again sworn, and having stated that Fort Wiltiain wus taken on the 13th of ^1iigu$t, 1816, was desired by Mr. Vau/cUon to relute how it was taken, the Solicitor General objected, Mtying, '* What edect can thu manner in which it might be taken have •' upon u cliai ge of ucce^jinry buf\ith the Indians. I had beard nothing on the way, on the part of M^Lellan or of ani^ other perran in the canoe, relative to Keveny, which could indi- cate tliat M^Lellan, or De Reinliard, or any other in the canoe, had any design of killing Keveny, nor any words about him, until the time when we met the people of Swan River. I was on the first bar immediately behind the bourgeois, from the moment that we had met with Jose, until the meeting with the Sican River people, and afterwards I was all the ti A. I 324 ,iA ■»#' time before Faille and La Poinie^ who were next the steersman. Ot^ parting from the brigade, we pursued our way towards tbe Dalles^ a^t^ ^a^ is tlie usual route for going to Lake /a Pluie. .. ■* / A map of the country was here presented to the Jury. We found Kevenif abqve the Dafles'vsHh tl\e Indian*. During the whole of this time, after ^^e had parked from the people of Swan River, I did nqt ^ear any Q.qe wbonasoever spea^ in the canoe, of killing JCeveny^ nor of Keveny pit all. I heard nothing said by Vasif,ur^ nor by any one ^Ise, that he vyould haye J^eveny's boots, oir his hat. . JMjr. S/uflr/.-^There ^s now only the intermediate time, namely while 0ey wore in ^mpany with the brigade, to cover. During the time, that you weife vsith \\i^ Swan River brigade, did you hear any wor^ about killing Keveny ? .« JMor^in.— No, I did not. I did not hear any word of the kind. Mr. Stuart. — If it had been said, would you have heard it? or any thing similar? Martin.— li that or a^y thing similar b.ad beep said, I should cer- tainly have heprd it. Being qufiftioned as to Vasseur''s station, ^e witness answered, that ^e paddled before the bourgeois, and not in the bar, nor did he ever see an engage paddle in the bar of the bourgeois. In continuation he stated, that having fifteen in Mr. M^Lellan^s canoe, it was impossible to em- bark Keioeny and his baggage, and he was therefore left to follow in company with De Reinhard and Mainville, having Jose as a guide, who was the^ only person amongst them (excepting JDesmarais, who acted in the same capacity to M^Lellmi's canoe) that knew the route. Havinj; related their encamping, \^e declared positively, that there was on thut night a fire before the entrance of M ^Ldlan'^s tent. The occurrences upon, and subsequent to, the arrival of the small canoe, is thus narrated. Martin.-r\ saw the small canoe arrive. I was then on the beach. Mr. M^Lellan was not there, but I do not know whether he was in his tent, nor where he was. We set off the next day for Lake La Pluie, and 1 always continued to paddle in the same place. I have no know- ledge that M^Lellan shewed a paper to De. Reinhard, and said to him, or to the others, that it was well thai Kereny had been killed, because he had the power of getting King^s troops to take away our lands from us at Red River. M^Lellan, wanted to go farther, to meet the people, but we would not ; the season was too far advanced. We remained two ^ays at Lake La Pluie, and Mr. M^Lellan then returned with the others to Bas de la Riviere, De Reinhard, Faille and La Pointe remain* ed at Lake la Pluie. The aroLS belonging to De Reinhard, namely a in. Oi^ lies, o^(^ iring the n River, f killing •, uor by ;1y while the time, ay wor^ And. or any Dul^ cer- Ted, that B ever see le stated, le to em- ollow in lide, who acted in Having ) on that •-urrencea larrated . le beach, ras in his o Pluie, o know- to Aim, cause he rom U8 pie, but led two vith the remain* amely a 325 SKVord, anJ a carbine, were brought from Lake la Pluie in our canoeo J did not hear any cry of joy \yhen w> met the people of Swan River^ And th3t they told us they had ?een Keveny.^* Upon hLs cross-examination, he admitted that there was talking ia the cnnoe, and he could not §ay that he lieard all that parsed, but he re- peated, that during the whole voyage he never heard Keveny^s nao^Q mentioned. Adverting ^o the time when he was taken prisoner, he said Keveny yvas gojng to fire at D( Reinhard, but that he (the witness) seized him and took bis gun away, which he uncocked, and that there was a good deal of resistance al the time, bnt as they spoke t^nglisk he did not understand it. He beard no orders given to burn the small ca- poe, nor did he know uhy it vvag burnt, tl^ough he admitted there wa; blood upon it Being questioned as to why a canoe should be burnt, he answered, that Vasseur said " T must go and set fire to that canoe," bu^ it did not burn. He ^Iso said that Mi"- M^Lellan appeared by hiq countenance to be much poncerned, but he heard nothing said abouf Kerevy''s death, nevertheless M^Lellan did not converse with De Reiri' hard ; and the witness *' Faw very well that he did not look upon him iif *'■ the same light as before." Witness asserted that he was not known in the Indian territory by any other name than that of Michel Martin,, Hie Hon, William Bachelor Coltman, Sworn, The commencement of Mr. Stitart^s examination referred to the ap- pointment of the special commissioners for the Indian territory. Mr, Cof/wan noticed his appointment, and in reply to a question as to the extent of the autiiority possessed by himself and colleague, stated that some of the Hudson's Bay gentlemen thought themselves entitled tq act as magistrates generally (though he believed they declined acting whil«t he was in the Indian country but under a kind of protest) but that hims-clf and Mr. Fletcher were the ojily magistracy appointed under the Statute of 43d Geq. Ill Cap. 138. and that there were only special constables, no Courts of justice, nor ?iny gaols rpcogn^zed by law. Jlfr, CoUnuin continued that the Prisoner was in confinement at Fort Douglas, nt the period of his arrival in July, 1817, and " lie thought it his duty *' to see him in his confinement, k; ascertain that he was not treated *' with any unnecessary degree of harshnesB." He saw him the second day (as he believed) after his arrival, and again '* on the following day for *' the purpose of receiving a declaration which he had stated he wished *' to make." In reply to an inquiry for the declaration, Mr. Coltman ?aid, " it had been filed with other papers with the Attorney-General^* also that it was " a voluntary declaration, on the part of Mr. 3I^liel' 'V. liaa [The Chit f Justin asl;cd the Attorney General if be had the declara' (ion, who replied, that he had, hut ns *' his oton declaration could not ** be evidence, there was no necessity to produce it*' to which the Uwf Justice observed, though prima faeie^ n6t evidence, yet '^reading it ** might ^ave a great deal of time and trouble,*' adding, *' but ex- ** ercise your own pleasure." The Crown Officers still refusing it, Mr* Stuart said he should not press it if objected to, but he bad thought it would be the best evidence that the Prisoner had demanded the fullest in* vestigation of his conduct as well as of the information given by him and bis wish that the persons capable of giving evidence should be secirsd. The Aitorney-General observing, that it was no evidence at all, being merely the Prisoner's own declaration, which was never admitted to go to the Jury, the Chi^ Justice suggested that " .If ^Lellan might have taken "■ a copy and read it in his defence, and it would then have been before *' the Jury." Mr. Stuart said the important fact, that as soon as Mr. Coltman arrived at Red River, he went to the Prisonerto receive a vo- luntary declaration on his part — was obtained, and, although well aware that there were technical objections against this paper being received in evidence, ypt, as they were merely technical, he did not expect the Crown officers to object to their reading, when the substantial justice of the ca?e would be promoted thereby. The Court suggested that hav- ing as a fact that Mr. Coltman received at a given day the Prisoner's declaration, perhaps it would not he objected that the part relative to tecuring persons who might be evidences should be read, but Mr. Stuart observing, that unless the entire paper were read, he would prefer that none should be, the Attorney-General said, " then we do not consent to " any part of it being read," and the examination was resumed.] Mr. Coltman repeated, that " it was not an examination of M^Lellan ** which he received (he having been examined before) but a declaratioa " which he state«l he wif^hed to make." [Mr. Stuart asked if the Crown officers still refused to produce this declaration, remarking that its production would save considerable time, and the objection could only be technical.** Mr. Solicitor-General oh^trv- ed, that the objection of the Crown ofTicers was not a technical, but a substantial, objection, viz. " that the declaration is not, nor could it *' legally be made evidence" but the Prisoner could make " a similar '^ statement in his defence, if he thought it advisable," to which the Attorney 'General added, ** that to allow it to be read, would be to dis- *' close tlic King's evidence." Mr. Stuart urged that it would not be to disclose the King's evidence, but to shew the Prisoner's anxiety to Ijive every information, and to have every person secured who was likf-ly to give any information on the subject, but the declaration being 327 uce this e timef ' obscrv- but a 20uld it similar lich tlie to dis- not be Jety to ho was n being refused, he should proceed to iihew these cireumstanees by the Hon. Commissioner who received it. Mr. Stuart then asking if M ^Lellan gav« the namet of the persons who were with Aim at the time the murder woji supposed to have been committed, the Solicitor-General disclaimed any wish to exclude legal testimony, but doubted wheUier that quesUoa could be put, to which the Chief Justice ohserveA that it certainly might be obtained from Mr. Coltmau as evidence that in Juli/, 1817, an account i/'ar given to him by the Prisoner, and that it was accompanied by « wish that the necessary evidences for his trial might be secured, and it world remain to the Jury to give this evidence what weight they thought proper. The cxamioation was then resumed.] Mr. Coltman continued his evidence by stating the Prisoner did name the persons who were with him in his canoe at the time the murder of Keveny was supposed to have been committed, and that the last time he saw the deceased he was with several Indians, and in company of Charles He Reinhard, (who had before executed a warrant against him) one Mainville^ a Half-breed, and a savage named Jose, Jih de la Per- drix Blanche, — that " he requested that all these persons might be sc- ** cured and sent to Montreal to give evidence upon his trial," to which Mr. Coltman said he objected on Account of the expense, to which the Prisoner rejoined that ** in a case like this, expense ought not to be " mindrd." Mr. Stuart enquiiing '* whether any measures were taken "inconsequence?" Mr. Coltman said that be felt embarrassed, but af- ter considecation he thought it would be right, to make known th« Prisoner's wish to his friends, and he knew that some steps were take^i by them in consequence — that it appeared to him that he had no legal authority to incur the heavy expense, nor had he authority to secure the attendance of thesepeople at the trial, by taking them into custody, but that he did bring Joje' to Montreal, at the expense of govcrmcnt, (conceiving there was no other way of procuring his attendance, he be- ing at that time at large and at a distance,) thinking it material to have him as a testimony. ** Measures were taken, Mr. CoZ/ntan stated, *' (but not 80 early as he could have wished) to instruct JosPt mind as " to the nature of an oath, and it was understood (for a time at least) " that he was to be received as an evidence for the Crown." 3Ir. Slmri stating that his object was to shew that after Jose was received as » King's evidence, he was indicted, and continued, ** I would ask Mr. Co^* nuin, whether he was received as King's evidence by the King's lawycn as well as by the King's commissioners ?" Mr. Coltman. — He came down undoubtedly at the expense of the government, under the impression that he was to be h witness, but h» did not know for iclwm. My own opinion, that he ought to be a wit- :,\ ■ U 328 J hisB for the Crown, I communicateil to the Advocate Gemral, (no\ir Mr. Justice Pyke^ and to the Mtorncy-General, and I hud lettci-ii froui them which certainly led me to con\ ill naiv aduut the declaration of JH'Xe/Za?! to be read to the Jury. Atloniey-General. — We do not see that it ought to be. * Mr. Stuart. — The situation of the Prisoner was, and still coiitinutu to be, a very peculiar one, and in addresi^ing myself to the Court, I hope not to go beyond, but I shall strive to reach, the bounds of pro'^ fessional duty to their utmost extent. Fort U'illiam was taken possession of, and the partners of the North West Company taken prisoners, and held out, not only in this Indian country, but elsewhere, as rebels, and persons guilty of the highest crimes and misdemeanors. A system of proscription was adopted against all who differed with- the stronger party. A systetn of intrigue, (which perhaps is still carried on,) thut those who sit in the same room, cut at th6 same table, drink of the same c'lip, should be made the instruments of mutual suspicion and jealousy, and every man be apprehensive lest his fellow should become bis accuser. Such a system as this was calculated to excite alarm any tvhere, but much more in this remote country ; destitute of all those safeguards, which the law and its correct administration affords to us. Well might this system of proscription excite alarm in a country where the Earl of Selkirk was the only magistrate. 1 am not beyond the facts, when I say, this only magistrate was the great and 07ily uccuscr, and that his intention, and perhaps his only intention, was to destroy this commercial company, who were his great rivals. A tvilness fulls into bis hands, if he does not answer Lis purpose, he is changed from a wit- ness ta a prisoner^ and indicted. Look on the other hand to Faille, La Pointe, and Heurter, where, prima facie, more culpability attaches, they, instead of being indicted, are made witnesses. Mr. Solicitor-General objected, that these observations were a series of accusations not founded in fact, to which Mr. Siuart observed, that such round assertions were not decorous, nor usual, in our Courts, and the Solicitor-General rejoined, that Mr. Stuart was incorrect in throwing imputations on witnefises which were not justified by any thing in evidence. TFie Chief Justice intimated to the gentlemen, that the Court always heard them with pleasure, but it could not permit this sort of replication, for when the coolness of argument was forgotten, it was the duty of the Court to interfere, as well as when its legal limits were excecded^theo, addressing Mr, Stuart^ he asked " how by possi- 329 ■UN »a/, (no\y ttorsi frouj ed a8 the istance to WW admit coniinuti' Court, I Js of pro- possession ners, and ibels, and iystcm of strongci on,) that ik of the icton and I become arm any all those rds to us. Iry where the facts, user, and troy this falls into >in a wit- ^aille, La hes, they, B a series 'ed, that Courts, trrect in ny thing that the mit this )tten, it al limitii )y possi^ V' bllity the course he had adopted could benefit his client,^' and added, " on the other hand, wo must remaric, that the mure eligible mode of *' arresting irregularity in argument ia to apply to the Court." Mr. SoiicUor General explained, that bis intention was merely to say, that the statements of his learned friend were totally unsupported by evidence, and that, if investigated, he believed the reverse would be found to be the case. The argument was resumcd.l •, Mr. Stuart briefly recapitulated his former remarks, and continued as follows: — The dilTerences between the companies, to which the noble Earl and the Prisonfr severally belong, are well known, and, without enumerating the various acts of aggression which have marked the contest, it is sufficient to suy, that it belonged, from the peculiar sitU' ation of aflairs, to the Earl of Selkirk, the private prosecutor, to say whether an individual was to appear in Court as a witness, or as a Pri- soner. Take the instance of the Indian Jote. After llif' faith of thegow- ernment was plighted, that he was to be a witness on the part of the Croion, after the communication of this circumstance has been made to the Prisoner and his friends, from the most respectable source, who has testified to the fact, suddenly the Savage is to be indicted, and we dre to be deprived of his testimony. I do not intend to get out of the abstract question, but let us now, for a moment, turn to the conduct of the Pri- soner. He calls upon the Hon. Commissioner as soon as he arrives, and requests, (after giving him a full account of all be knows of the transac- tion,) that all the persons capable of LctUg witnesses may be sent down. Under this request three persons were eventually sent down. The Pri- soner, thus easy as to the result, expecting that these persons are to be witnesses for the Crown; waits patiently till they put him on his trial, when, suddenly, he finds himself deprived of their testimony, by their being indicted as participators in the same offence. I intend to go one ?tep farther. Perdrix Blanche was actually received as an evidence for the Crown by its officers, and under their directions, received religious instruc- tions, yet, when upon subsequent examination his evidence is not found to be of suiBcient importance to render it worth while to retain him as a witness, then he is immediately to be indicted, and we are to be deprived of his testimony. Desmarais is just the same case. He is brought down as a witness, but before the trial, is included in the same indictment, but in a different degree. The hardship of the situation in which tlie de- fendant stand?, consists in this, that, from the peculiar situation of the private prosecutor, whom he will he puts into the indictment, and brings into Court as a -jmsoner, and whom he will he puts into the subpcena, and brings hhn forward as a witness. Thus, having the strongest pas- sions of the human mind, hope and fear, at bis command, it is easy to iff " ;\ 330 / V conceive what must be the effect of auch an influence. Not to menlioa any namet, but what, I would aak, diitinguUh the cases of three of the principal witneoses on the part of the Crown from Grant or Cadotie ? Three are brought to the witness box to tat\fyy whilst the two are to be arraigned and tried at the bar. I do not acoufis the noble Earl of par- tiality, but perhaps it is not going too far to say, that» so situated, it would be scarcely possible for any nuan so entirely to divest himself of personal feeling, as not to be influenced in some degree, by it. Looking at the scenes that have been presented to our view, and presumption might lead us to imagine we discovered, in the events of the Indian Ter- rUory^ the force of this principle. The vigilence of my learned friends could not extend to Red Htver, they must necessarily be dependent on the assistance and representations of the tnagittraey^ and looking at wAdi, or rather wAo, is that magistracy, contemplating the deep interest and heavy stake he has in the events that take place there, I say, though, no doubt the magistrate is innocent, yet the presumption will present it- self that, surrounded as our natures are by frailty, and exposed as our judgments are to influences often so secret and subtle as almost to defy detection, personal feeling may have had tome share in the course of procedure that has been adopted. In conclusion, I would remark, that I did think, having been deprived of all the witnesses on whom we had a right to calculate, the officers of the Crown would not have objected to the declaration of the defendant leing read. Jottf on whom we confi- dently relied as a toUneu on the part of the Crown, is indicted ; Desmarais Is indicted ; Grant and Cadotte are' indiUed ; and thus, deprived of our •primary^ we are compelled to resort to leeondarj^, testimony. Chief Justice SetDcU.-'^ne point relative to Jose is established, name- ly, that he was sent to receive instruction as to the nature of an oath^ and that, up to that time, he was intended to be used as a witness. You therefore only require to prove the second^ namely that he was indicted. Attorney Genera/.— It is a little singular, I think, to attempt to prove by the commissioner what was done in his absence. As to this history of euUing witnesses, I do not know to what my learned friend re- fers. He appears to speak as if witnesses had been taken on^ and then hunted qff; to all insinuations of that kind I am completely indyferent. The commissioner undoubtedly acted with great caution^ but the Crown never pledged itself to make J'M^ a trdness. Chief Justice Sewell.— -Then was a little unnecessary heat on this oc- casion, which I was sorry to observe, because, I am happy to say, it is what we are strangers to. Mr. SttutrCs position was this : the persons whom we intended, and whom we had reason to believe the Crown pro- posed to produce as wUnesses^ have been tndtded, and we are thereby de- prived of our primary^ and therefore ought to b3 allowed to introduce S31 » mentioa ree of the Cadotte ? are to be riot par- tuated, it limseir of Looking flumptioB dian Ter- id friends ndent on l^iwhitt, ereit and lough, no resent it- sd as our it to tief jr course of rk,thatl we had a tjected to we confi- ^esmarais id of our d, oame- an oathf t». You indicted. empt to 8 to this riend re- and then different. B Crown I this oc- say, it is persoos wm pro- ireby de- itroduce mondaryy testimony.. The Crown officerb may be assured that I Cpcl it my bounden duty, and it is my pleasure to protect them, whenever they are attacked ; but the object of the defenee was merely to shew why they could not produce, what is called, the best evidence. Here are five persons, say they, indicted for being present at tbe supposed murder. Perhaps I am not right in my conjecture, but the jury might insist upon their being indicted^ a thousand reasons might be assigned without at* taching blame to the Crown officers. The only necessary question is this; was Perdrix Bbmdu indicted afterwards J Mr. CoUman stated, " Perdrix Blanche^ was (as he believed) subse- " quently indicted*'— that he sawDeimaroti at Lake la P/ute, about the 24th JunCf and understood, when he first saw them, that he was guide to a canoe of goods belonging to Lord Selkirk^-itMt as positively as he could remember, (speaking only from memory,) he was brought as a witness, by one Midiael M ^Donellt an agent to Lord Selkirk ; and there was no doubt but Desmarais^ had since been indicted for the same offence. Mr» CoUmamfs examination concluded, by his stating, that he took no step to bring Hodum down, and that he did not come down. Being cross-examined, Mr. CoUman said, he had heard many reasons assigned why Rodwn was not brought down ; but he was not sufficiently acquaintedwrith their truth, to assert they were correct— he believed, he was now in the Indian territory. Also, that when it was deemed expedient, to take Josi as a witness, for the Crown^ what he could prove could not be known, as he was then unacquainted with the nature of an oath ; but that Ae had not felt himself warranted, in promising him that he should be a witness, without the sanction of Ihe Crown offi- cers. That at a time when Jose was with the witnesses for the defence, in consequence of a letter from the Aitomey'General^ wishing to have bim {as Mr. CoUman supposed) for a King*s evidence, upon his applica- tion he was produced by the gentlemen of the North West Company ; and it had been his own opinion, which had been intimated .to the Attor- ney-General^ that he ought to be returned to the gentlemen, from whom he had been received, under an idea that he was to be a witness. Fi- nally, Mr. Cohman said, that afterwards Jose was indicted ; but previ- ously notice was given him, that he could not be received as a witness on the part of the Crown. This evidenu closed the defence. , , Mr. Nolin and Milbs M 4CDonell, Esyuire, were examined by the Attorney General^ in support of Des Logis* character ; the former said, he had known him three years, but did not know enough of him to say, whether confidence could be placed in him, but he bad never caught him in a lie. Mr. Macdonell*s evidence amounted to this, that ic, 1 ■ ■ h ..'.I 332 . h%ilid not know enough of Dca Loges, to 8peak to his general charactei , but ho knew nothing bad of him — that be could not say he ever heard liis character, from tlie North Wtitt Company, but he knew no reason for not believing him upon his oath. Mf/v* »'«M , ^.... :;:<* ' .. iv, • The Chief Jcbtice tlien charged the Jvkt— he commenced by ui) assurance tiiat in endeavouring to cclaircUe ouch parts of the subject as appeared to require it, the Court had no intention to suggest any opinion on the facts of the case, but its sole object would be to place both with reference to the Crown and to the Prisoner, those particular pointi^ wliicb militate against tlie one and the other before the Jury, and thus assist them to form, but not to guide, their judgment. He tlien ex- plained, that as the facts were exclusively with the Jury, the law was equally so with the Court, adding, *' and, gentlemen, it is this happy ** union of the respective duties as»iigned to each, that renders the sys- *'■ tern of jurisprudence, which we are this moment administering, the '^ 6rst in the world.'^ The precise charge against the Prisoner, as con- tained in the eiglith count of the indictment, was then stated, the Chief Justice remarking : " It is of no consequence to enquire whether it wi^s *^ by Mainville's hand, or not, that the man was killed, because the " record of (De Reinhard's) conviction has been produced, and made a ** piece of evidence against M^LellanJ" The principles upon which distinctions of degree if^ the same crime proceeded, were illustrated and applied to this cdse in the following manner :~'* Having thus exhibited ** the principle, for a moment vpply it hypotheticaily to this case. Main- ** ville actually killed the man, and De Re^vhard was present at the *' time. Previously, in company with Mainrilk and De Rcinhard, the ** Prisojier, M^Lellanbad advised, commanded, or even consented to *' the murder. The application is obvious, Mainville is the principal *^ in the first degree, De ReirUiard in the second, and M^Lellan would *^ be the accessary bifore the fact ;" and the Jury cautioned against mis- taking tbat.by this hypothetical elucidation, he intended in the slight- est degree to involve the Prisoner in the justice of its application, its only object being to explain the principle, so that the law upon which the Ju- ri/ were to apply to the case, might be satisfactorily comprehended. Pro- ceeding to the consideratioo of what constituted an accessary after the fact, he declared : *' It is not a mere omission to perform a duty, it is not " a negligence to give information to a magistrate, so that the hue and " cry can be raised after the murderer ; for such conduct, though reprehen- *' sible in the tiighest degree, amounts only to mtsprmon of felony, an *' offence most undoubtedly, but not the aggravated one charged in this *■*■ indictment. He who is guilty of merely concealing a felony, is guilty *■* of a misdemeanor, which is punishable by fine and imprisonment, but ^' if this is carried any £E(rther than a culpable remissness of duty, tb^A 333 1! iharacter, heard his eaion tbr .* r.^4r :ed by ui| subject U8 y ophiioii )oth with ur poiaU and thu8 tiien ex> idw was is happy 9 the sys- sring, the ', as con- the Chief ler it w^6 cause the d made a m whicl) 'ated and ixbibitcd ': Main- it at the kard, the ented to >rincipal n wouhl inst mis- e slight- its only I the Ju- •d. Pro- a/ler the , it is not hue and jprehen- 'ony, an 1 in this IS guilty mi, but y, tlija *- the oirender becomes an accessary after the fnct.*' The Chief JusM Tfupportcd his definitions by referring to Mr. Justice FortUr, page 125, and to Dallon, C. IGl. S. 5. and read at considerable length from the Cormcr, and arriving at tlie conclusion, that *' it is a principle in law '* which can never be controverted, that he Mrho procureth a felony to be ** done, is a felon ;'? and, to point out the differefiee between a principal und accexsdry, adding, *' if prc!«ent, (that is at the perpetration of Uw ♦' oftence) he is a principal, if absent, an accessary before the faot.»' > Having thus defined what constituted an accessary before the fact, his Honour proposed to examine, by reference to the testimony, how far the Prisoner was guilty or innocent; intimating that, if the evi- dence appeared to the Jury, in the same light it did to the Court, they would, perhaps, find no testimony, making him an accessary after the fact ; for, should they believe in the existence of a conspiracy to take away the life of Keveny, but still apprehend that only a taeii consent on the part of the Prisoner, or a very culpable negligence in not prevent* iDg it taking place, then (said he) " it is my bounden duty to tell you, '* that though such conduct amounts to an offence, and is punishable as '■'■ such, yet it does not make the Prisoner (in the eye of the law) an '^ accessary before the fad." To constitute him that, he continued, *^ it "* is necessary that it be proved that he not merely did not prevent, as *' perhaps he might have done, (I am now speaking merely hypotheti- '* calh/,) the murder being committed, but that he aotually consented '♦ in his heart to its perpetration." The Chief Justice explained to the Jury, very forcibly that it was their duty to determine whether the evi- (.lence proved merely **■ a tacit acquiescence manifested by a culpable ,'* negligence, without having excited, or given his hearts consent to *' the murder, or whether the crime, instead of being a mere neglect to ** do a duty, was proceeded in from a wish for his death," adding, if they adopted the opinion that M^Lellan^s silence resulted from malice, and from a secret wish in his heart for the death of Keveny, that he had abstained from preventing the murder, ** then, gentlemen, it is not '•'' merely a negligence in not preventing the murder, but it is a criminal *'■ abstaining, the result of malice aforethought, and the law, judging " of offences by the quo animo wherewith they are committed, declares ** such a consenting to be an actual participation in the murder, and " that the offender is as guilty, (though absent at the commission of tbe " crime,) as the felon who actually takes the life. It amounts to that " crime which Mr. Justice Forster, in commenting on the case then be- " fore him, says, * It would be a reproach to the justice of the liingdom '* to suppose that he is not an accessary.' " His Honour noticed that the same doctrine was maintained by Lord Bfj/kt page 615 of bis learned work, and altbowgU difficult for the Jury 834 h 'il Ipuy, whtn they ihall (ItteroaiM that mdioo wut in the h«art, yet tbtt H mufi in this can be doae, at ** it ii tha intent of the mind which con- ** ititutei the crime," and elucidated the |K>iiitioD by again putting a •aic hypotketically. ** If the converiation in the canoe {pMge flOl, cf ** ttq.) wan beard by M^Leltan^ and without malice, or ill intention ** towards Ketmy, he neglected to give information of the design, then ** he would be guilty of toneeabnentt but would not bo an aueuary, for " ii If the wicked design, the ill intention, which constitutes the crime.*' It was then explained, thai this was an offenoe (viz. muprtiten ofmut' ditr) which the law puniihed, and sometimes severely too, and adverting again to this conversation : " But, gentlemen, («aui hi$ Honour) if on ** the other hand, as commanding officer of this canoe, be not only ** heard the conversation, but approving of it in his heart, he neglected, ** from a malicious intention, to prevent the crime, then, gentlemen, *^ he is guilty of what he is accused in the indictment. He is an acee*- ^* Miry to the murder, and in law eqttally guilty, and liable to the tame '^ punishment as the prineipal** The Chic/ Justice cautioned the Jury against imagining that he liad any intention of supposing that this woe the case of JIf ^Xe/lan, observing, that in pausing a verdict : " It is you ** (the Jury) who are io say, and you only, whether ii was an omission ** io perform a duty, arising from no motive of malice or ill-will io the ** deceased, or whether he consented ip his lieart from malicious mo* ** iives.'' Adverting io the suggestion previously made by the Court, it was observed that, if the Jury took a similar view of the evidence, the charge of accessary after the fact would perhaps be laid aside alto- gether, but to decide that point, it would be necessary to ascertain cor* recily what in law constituted the offence. Referring to Hawkins* PUas of the Cromt, established that, *' the rescue of a felon froin arrest^** and ** the voluntary suffering him to escape," were tlitii crime, and that some held " those in like manner guilty who opposed the apprehending ** a felon ;*' and from the same authority it was shewn, that ** suffering " a felon to escape without arresting him on the bare concealment of a ** felony, do not make a man an accessary." The Chief Justice then noticed the following " very peculiar circum- ** stances in ibis case" — that there was no magistracy in the Indian ter- ritory ; the great and (as he believed) only outlet from that territory was in possession of Lord Selkirk, namely, the forcible detention of Fort William, was considered hostile to the interests of the North-JFest Company; and. remarked : ** Ii seems, I think, thai he had a know- *' ledga of the felony having been committed, and he brought De Rein- " hard to Lac la Pluie, whether with an intention to bring him io Fort ** William, and then io send him to Montreal, where he might have '' been tried, will be for you to determine. Ii will be for yon to ^n- 335 t, yctibM ybicb con- putting • V« ^<. «l intention •ign, then uaarjf, for he crime." m of muf' adverting our) if on not only neglected, gentlemen, sen aeu9' the $atne 1 the Jury It this trot * It is you n omission »rill to the icious mo> he Court, evidence, iside alto- irtain cor- ;ins* PUtts est,** and and that rehending ^ suffering nent of a r cireum- idian ter« territory ention of orth-JFest a know- >e Reiti' I to Fort ;ht have I to 4fpn- ** rider, whether the situation of affairs at Fort WitUam was such at tv ** frustrate such his intention. Upon the face of the testimony, Om " Ck)urt does not see any thing that brings home the charge of aoeesHwy ** q/Yer the fact, it is solely, in our Judgment, applicable to the ailega* " tion that he was an accessary befort the (bet, and to that part of th« " charge the evidence is of very serious importance.*' Before dismissing this branch of the inquiry, reference was again made to that part of ITatcib'ns, wherein he discusses *' what kind of receipt of a felon will make ** the receiver an accessary after the fact,** to enable the Jury clearly i» appreciate the distinction which the law makes between that crime oa4 a negligent eonceakneut of a felony, and Sir Edward Oolee*s second afti third institutes were cited for the same purpose, and the consideration of ** how far the Prisoner had been proved an aoeesiary after the faet,^ . was thus concluded :— ** In the present case, perhaps. It cannot be dis- " puted that a knowledge of the felony has been brought home to the " Prisoner, but Is it that knowledge which amounts io more than • ** eoneealment. You probably will be of opinion with vbe Court, that ** nothing beyond that has been proved. It may am junt to a most eiif- ** pable negligence, but is not, according to our ?iea, that aiding to ** escape which is necessary, according to tlieauthok .Lies whict I hav<& reai ** to you, to constitute an individual an acuuary after th*f' '«.'* Hie Ju- ry were again cautioned not to consider the Court as wish! jg to dirtti 'hirir opinions in the following terms: " But lei mr u^t^m remind ycu^ (hat " it not what we say that is to regulate your opinion. Yonrverdict, " gentlemen, is to be most emphatically your ovon. You are that c6un« " try upon which the Prisoner has put himself for his trial. It is yom " who have sworn duly to try him, and make a.iust deliverance between " our Sovereign Lord the King and himself, and to do that you must " fully and impartially deliver your own opinion, unfettered and unin- " fluenced by the sentiments of any man.** • ' *7 .'-wj.y The question cf ^urwdMrfton was then examioad, and reference had to the various acts so frequently r^ntioned; the Court repeating as the unanimous opinion of the judges, 'C^.ti the boundaries of Ufper Conoift were such as were laid down in De iietnAard*f case. The evidence of Messrs. Coltman and Bouchettc ^ as to locality, was read and commented on, and taken in conne'^t' in with the legal decision, it was manifest ** that the spot * en haut det Dalles* was beyond the American line, and " without the boundaries of the province of Upper Canada.** The more particular consideration of the faett of the case was thus introdifoed--' ** the locality, involving in it the question of jurisdiction^ being disposed " of, we proceed to the consideration of the case itself; and the Court ** requests your most particular attention to that part of tt which relates ** to the charge against the Prisoner, of being an accessary before the 1 *' . S36 I 1/ i ' i>' ¥ fast— The courw I propose to pursue is precisely that which \i^as t&'keir " In the last case. I shall first read the evidence without any comment <> whatsoever, so that yon may have, eleasly and distinctly, the whole " of it before you, and after having so done, I shall endeavour to point ** but certain parts which, in the judgnlent of the Court, make against, *' and also certain parts which make/or, the Prisoner, and then, with- ** out further ob^rvation, shall leave the whole case to your ultimate **' decision." The evidence was read to that part of FailWs ( page 299) which re> lates the conversation with thp Swan River brigade, and its difference with the testimony given by Des Loges (page 309) was thus pointed out — •* He (Des Loges) represents that it ^as the Prisoner who made the ** enquiries, while Faille as fully establishes that it wits some olhcr per* ** son, though he cannot say who, because he repeatedly says that Mr, " Arehy was with them, but that he does not know whether he heard ** what passed, which clearly manifests that (according to his statement) ^* it was not M^Lellan who put the questions.'* Having reminded tlie Jury tl|at to decide between the credibility of opposing testimony rented with them, it being the duty of the Court merely to point out what sug- gested itself as important, the Chief Justice resumed the reading of the evidence. Upon the directions " to burn the canoe" {page 302) and whether any, and what reason was assigned for so doing, it was re- marked that his statement differed materially from La Pointers, al- though they agree that both were present, ( page 305) whilst Midiel Martinis account opposed theirs altogether, {page 325.) A similar contradiction relative to the papers and their destruction was noticed, the one swearing, {page 302) the papers were taken out of the box by Dt Reinhard wlu) put them into *the Prisoner's tent, another giving completely a different account, {page 305) whilst Martin asserts that there was a fire befora the &oufgeoi5 tent that night, {page 324.) Thn reading the evidence was concluded with only a remark, that Martinis evidence in favor of the Prisoner, {page 324) was in strict accordance with one of the principal witnesses for the Crown, {page 303) that the oanoe being too much loaded was assigned at the time as a reason for not taking Keveny. -^ The Chief Justice intiniiatcd that it was his duty to place before the Jury, the particular bearings which presented themselves to the Court, as calculated to assist them in forming a correct decision, but not with ' the most distant intention of dictating, as the verdict must be thtir free and unbiassed decision, and continued thus :— • -v^ The entire case, gentlemen, resolves itself into a question oUredibi- lity, and the guilt or innocence of the Prisoner depends, upon the de- gree of credit you attach to three witnesses, viz : Faille, La Pointe and 837 ^as ta'kcii' comment the whole r to point e against, en, vvith- ' ultimate . /-UK* 3? which re- difference )inte(l out I made the other per* i that Mr. • he heard tatement) liaded tlie ony rented what sug- ing of the S02) and it was re- >»n/e'*, al- Ist Midiel A. similar 8 noticed, le box by ler giving sorts that Ik.) The . JMiir/m'j ccordance that the eason for )erore the he Court, not wKh • their free of credibi' n the de- ointc and 2)«t Loge». If you believe //tem, that belief must, indisputably, lead to the conviction of the Prisoner. The circumstances they swear to are^ that the Prisoner had the entire command of the party, that he was a partner of the fi(ortb-Wcst Company, and the others being ckrks and servants were consequently under his controul ; and this is not contra* dieted by any evidence on the part of the Prisoner. The convcrfsation In thecanoej is a circumstance sworn to by all ; they agree in the ipaia fact, that the conversation relative to killing Keveny, did take place in the bearing of the Prisoner, and also that he participated in it to;>a cer- tain extent. The circumstance of his receiving the sugar and appropri- ating it to bis own use ; bis receiving the papers, examining them, keep- ing such as he thought advisable, making away with the rest, the burn* ing of the little canoe, by hifi own orders — and, as sworn to by one of th| witnesses, (page 305,) for the avowed purpose of preventing it be- ing seen " by the Indians, or Canadians, who might come that way," Ijc— though FaiWe says, (page 302,) equally pofitively, that the Pri- soner simply ordered it to be burned, but gave no reason tvluiiever for so doing ; and it should also be remembered, that Faille and La Poinie agree that they were both present at the time when the order was giv- en. The injunctions of the Prisoner not to speak of the affair, is related by the witnesses with little variation, and, if credited, forms a strong circumstance against him. His expressions upon reading part of Kene* ny^s papers in the canoe — his reception of Be Reinhard when he came without Keveny — eating, sleeping, and journeying, with him, and man- ifesting, (according to these witnesses,) a general disposition to be friend- ly to him as before ; all those, gentlemen, are strong circumstances a- gainst the Prisoner nt the bar : so much so that, if you credit the wit- nesses, it is the duty of this Court, to say, that notwithstanding these differences upon particular facts, you will feel obliged to render a ver- dict of guilty. But, tQ do that, you must believe the witnesses on the part q( the prosecution, and discredit those in favour of the Prisoner. — To their evidence it is (low my duty to request an equal sha/e of your attention, as it goes to contradipt, in almost every particular, the evi- dence of the principal witnesses for the Crown. And first, relative to Des Logcs, whose testimony is so strong against the Prisoner, he stated, if you recollect, gentlemen, that in 1816, he was in the Indian country, with one Colishe Ducharme, that they were in the same brigade, and Ibat, going to Swan, River, they met the Prisoner, and he then went on to relate a conversation which he swore took place between them. On the part of the Prisoner, this man Ducharme, is the first witness called, (jpooe 314,) and he says positively, that no such conversation did take place. A number of questions were put to him, in which different parts i'. ^98 \iV vv Imh T' kipSf'to «hat« ybuf ebnfiiSeiice ID cither, if not, peVliapli, to destroy tbeir leBtlraony altogether. The Court, however, gives no opinion upon cre- dibility ; it in your own nnfaiastietl decision, whicli must relugete your verdict, but it r^ our duty to notice to yon equally, the favourable and unfavourable parts of the testimony, and I must now observe, thai the oath of Miehd Martin goes to contradict them at almost every point. \T\i6 cividience of 3far/m was then gone over, and the contradictions •were ^^cinti 1 out.] More contradictory evidence never came into a Court of Justice, ln« deed therein not one fact of any importance in whtch the evidence on the two sides is not almost diametrically opposite, and between tliem you are to decide. There h another point which we feel bound to no- tice to you ; the Prisoner has shewn that he could not, in that wild country, oWing to its peculiar circumstances, bring that evidence of his innocence which he wisliRd ; he also proved that he placed some reliance upon pfersons who were brought down being prodQced as witnesses on the part of the Crown, but who were afterwards indicted or removed from him. It will be for you to say whether this evidence does not ex- plain what before appeared to be dubious, and account, in a grsat de- gree, for his not producing before you tnore positive testimony as to his eondact. There is nnothdr circnmstanbe which it is right I should ad- vert to. The Crown oiScers, with very great propriety, shewed tha^ ilfr. Kevenj/ wis pent away from Bcu de fa Rimert in the custody of five Bois'brtiles, intending, as was evident from the tenor of their qnes- tions, that yon should Infer that Kevetiy was not treated with that kind- ness which it was endeavoured to establish on the defence. To rebut such an imprci^sion, Mr. Crebassa is tasked, whether at that time there were any persons excepting Bois-brdh't at Has dt la Att'icrc, and he an- mvcrs that, excepting two old Canadians accustomed to work about ^e garden, there were not. So ftir that is explained completely. They had no right to keep him at Has de la Riviere, they were bound to send him to Loicer Canada, and the circumstance of his being put in charge ofBois-bruh's was unavoidable. Relative to the Prisoucr following Ke- veny, he i^nys the reason was because he had heard of the capture of Fort William, which was not known at the time Keveny was sent away. When this information was received at Bas de la Riviere, I think \te must have known of Keveny having been turned over to the two Cana' dian luds, and the Indian Jose, though it is not in evidence that he did, but the circumstance of his being detained^ owjng to the quarrel of thes« people, certainly couM not have be<'n in his own knowledge. The Pri- soner's account of meeting him is, that he came upon him accidentAlly, «ud takes him up that he might be forwardctl on to this province. The reason of liis going in the little ranoo, if you believe Martin, is because cA. ^ it was imposiible he could go in the large ope, from its being already overloaded, indeed the evidence on the part of the Grown, though it goes the length of saying that he might liave he^p taken in the canoe of the Prisoner, yet says, that he would not hj^ye fofipd himself ** d ton ^'*** -in*! ,>l . lafj These circumstances seem to explain those which i^pear unfavoura- ble to the Prisoner, down to the time of his parting with Kevenjf the la$t time that he was seen alive. It only remains to notice the evidence as lo the conduct of the Prisoner after the time when, I think it cannot be doubted but, the fact of the murder \vas with|fi his knowledge. Faille and La Pointe concur in representing that the Prisoner treated Z)e Reinhard in every pfirticular as before, that they ef^t, drank and slept together, as usual, and tl^at they saw no difference, Martin says certainly they did eat and drink together, yet that he saw ft difference in Mr. M^Lellan^ and ^hat he dia not lo^k upon him in the s^e light as he had forqaerly done. Some enquiry was also made us to the pos- sibility of this sort of intercourse being avoided, which you will doubt- less recollect, and give to it what weight you think prpper. The Court, gentlemen, will make no conclusions as to these very contradictory and extraordinary stateitaents. Our duty is merely to put them before you^ and this we have done, on the one side and on the other, to the end that you may correctly apply each part of the evidence to the point of the <>ase on which it bears, and when you have maturely and conscientious- ly considered it, in all its bearings, that you may satisfactorily and con- scientiously say, whether Archibald M^Lellan^ the Prisoner at the bar, is guilty or not guilty. The Jury then retired, and in ahout ten mimites returned, and deliverr «rf, by Mr. Measam, a verdict o/NOT GUILTY, tr/iic/t wasformallji recorded. The Jury assented to the record, and the Chief Justice, liaving thanked them for their intention, they were disdiarged. The Attorney-Oeneral stated to the Court that lu had other matters a- fftinst Mr. M*Lellan, and Mr. M^LtlUm giving satisfactory bailf toav;^ fear to answer to the diarge, was then liberaled, „,, ' ,. ,, /.j^&^^^^v^:- ^ > - . ^ 9i) If f ■ "41 fit:' '? ■ •- ••■■••v'' ^jitr nO'iiiW ^i) >fm:ftS ,.;jst*y •■:,.. .■,... U *.:a ^^^^^ ':. > . / m'Ut:ny--)fii t^ltiV UK?' > ■ , '■ • *t -,1 K' •'** 'lr)rir/Si" j^^'H^iJ *i^J '>rt<^ Printed by James Lane, 39, St. PauUStrett* '.J JiH'fM «^i^(j «4««'<«>4 .t*si**f-^46t bough it the canoQ f " d son Dfavoura- eveny the evideuce it cannot lowledge. >r treated rank and irtin Bays difference ^me light Qthe pos* i\] doubt- lie Court, ictory aud efore you> c end that int of the >cientiou9- f and con- It the bar, ttd deliver^ s formally matters a* bailf to a]^