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Les diagrammes suivants iilustrent la mithode. 1 2 3 1 2 3 4 5 6 p^iipn ^mfmrnm^'imm. mmm- , is,' K I FAITHFUL REPORT "^^t OF TItE 1 TRIAL autd acqvxttak i4^. OF ROBERT RANDALL, Esq, «.-, s. Sv^fefv.,.- \ MEMBER OF THE COMMONS HOUSE OF ASSEMBLY IN UPPER CANADA, aicctt«eti of ilerftirs, And tried at Niagara, oq Wednesday the 7th of September, 18^. ,-^^ -T3^f=^ " Vox Populi, vox Dei." ^v..*- •,»'• .^'■\\:^^'^ ■ ■ FROM BTEMOGHAPHIC NOTE! By FRANCIS COLLINS, Reporter of Parliamentary Debates, in the House of Auembly', a < . ■y^': YORK: PIUNTI.D BY F. COLLINS, AT THE OFFICE OF THB CANADIAN TUlBtMffl: mmmm \ V ?;*>ii>'v V Seid^ice, o/ru/iAe mi?'^u..^ ..'.iifcaiiii'.MitfM mmmm ^< / «l e= a, 'S, Ditlrici ifKiagara, ) The Jurors for our Lord the King, upon their ontli to uiit. ) present, that according to the Laws find Constitution of this Province, a new assembly was in due lorm of Law summoned and called together to meet at the town of York, in the Home District of this Pro- vince, on the ninth day of Aus;ust, in the fifth y^ar of the P.cif^n of our Sove- reign Lord George the Fourlli by the Grace of God of the United Kingdom of Great Britain and Ireland, King, Defender of tho faith, and tiiat tlie County of Licobi, in the said District of Niagara, ought, and is, by law, entitled to be re- presented in the said Assembly, by four Members, to l)e for that purpose duly qualified according to the Laws and Constitution of this Province, a' id that on the twenty-iixth day of July, in the fifth year of the Reign aforesaid, an election of four persons to serve as MemHfers fur the aforesaid County of Lincoln, in the Aa- scijibly of Uiis Province, so summoned and called together to meet on the ninth day of August then next, came on, to wit, at the Township of Stamford, in the said County of Lincoln, in the said district of Niagara, and thereupon ona llo- bei t Randall, late of the Townsliip of yiamlord, in the Dispict of N'iajj;ara, afore- said. Esquire, ilid appear us a Candidate, anil did propose Iiiinself. and was pro- posed by other persons then there preictit at the --ai;! Eioction, Id be elected to serve as a Member for the said County of Lincoln, in the said Asrcinl4y. And the Jurors aforesaid, upon their oath aforesaid, do further present that the said Robert Randall, being thereto required at the time of such election, that is to say, on the said twenty-sixth day oi' July, in Uie year aforesaid, at the ' Township of Slumlord aforesaid, in the said District of 5iingaia, by WilUom Johnson Kerr, Samuel Street, Peter Mann Ball, and other persons havii.g a right to vote at the said Election, did on the ?aid twenty-eixthdayof July, in the year aforesaid, at the Township of Stamford aforesaid, in tlie said District of Niaga- ra, in his own proper person come before Richard Leonard, Esquire, then being the Retuniing Oificer, to whom it appertained to take the Poll anil make the return at such Election for the liaid County of Lincoln, and was then and lliere duly sworn, and did take h-« corporeal oath upon the holy Gospel of God,betbre the said Richard Leonard, (he the said Richard Leonard being ?uch Return- ing Officer, and having competent authority to administer an oalh to tlie suiil Robert Randall, in that behalf,) and the said Robert Randall being so sworn, and not having thu fear of God before his cyej, and having no regard to the Laws and Statutes of this Province, nor fearing tlie punisiliment therein contain- ed, then and there, to wit, on the said twenty-sixth tlay "f July, in the year aforesaid, at the township of Stamford aloreseid, in the sail district of Niagara before the said Richard Leonard, on liis oath aforesaid, falsely, wickedly, mali- ciously, wilfully and corruptly, did, amongst other things, lay, depose, swear and make affidavit, in writing, in substance and to the effect followiiig,thati8 to cay, that he the said Robert Randall, at tlie time of taking surhoith, and mak- ing such allidavit in manner aforesaid, U'uly and bona fide tiad s ch a freehold Estate situate in the (bllowing places, the place known by Rridgewator Works, (meaning the place '.;nown by the numeof theUridgcwater Works, on the wat- er of the Niagara Rivor, between the mouth of tlie River V/elland and the great Fall in the Township of Stamford, District of Niagaia, (meaning in the said District of Niagara,) four framed dwelling houses under two stories, with not more than two fire places, twelve hundred acres of hind, being the north part of lots number fifteen, sixteen, seventeen, eighteen, nineteen and twenty, on tije south side of the River Wclland, in the Township of Wainflect, District of Niagara, (meaning tlic said District <>f Niagara,) i.;^mi)ensation, allowanco (meaning an allownac* in money maiio by His Majesty,) lor the destruction of the Bridgewater Works in the late War with the United States of America, detained in tlic hands ut' this Government, (meaning the Ciovcrnmcnt of tliis Province,) by my order (meaning by the order of the said Robert Randall,) four tliousanil (Miunds — seven humlred and seventy-six acre« of land, lots num- ber thirty-night, thirty-nine, and forty, in the first concession from the Ciiand or Ottowa River, ond the broken fronts of the said lots in the Township of Na- pcan, in the County of Carlclon, District of Bathurst, (meaning in the County of Corleton, in the District of Bathurst.) four hutidied uud fifty acres ui loud, bro- 1*1 n il ' m< i li i .# •iML-- I'll I kem lots, numbers ten and elf pen in the first concession, lot number eleren oiul castermostor front three fourthsof lotnumbnrtcn, in thescfioiul concotsion up- on the River Rideau, Towiisiii|) of Nnpp.an, Comity of Carletoii, hi the District of Bathurst, (meaning in the Township of Napeaii, in the County of Carletoii, in the Diatristof Bathurst.) four hundred arres of land, lois number elcvea and twelve in the eighth concession of the Township of Mntildu. County of DuiiJas, Eastern District, (meaning in tlie County of Dundas, in the Eastern District,) four hundred acres of land, lots number tpu and eleven in the sixth concession of the Township of Yonge, County of Leeis, District of Jolinstown, (moaning in the County of Leeds, in the District of Johnstown.) over and ahovc all incum- brances, that might effect the same, and was otherwise qualified aocorli-ig to the provisions of the law to be elected and returned Member in the Commons House of Assembly, (meaning the Assembly of this Province, as aforesaid.) ac- cording to the tenor and true meaning of the Aft of Parliamr'ut in that beliaif, uii ^. that he had not obtained the same fiaudulPiilly. for the purpose of qualifying him to be returned Member to the Commons Houspof Assembly, (meaning tho Assembly of this Province, as aforesaid,) wlieroas in trtith and in fact tlie said Robert RaVidall, at the time of his taking sucli oath and making such aifidavit, in manner aforasaid, liad no freehold estate either in dwelling hou«es, or in any lands and tenements, at or in the place known by the name of the Bridgewater Works, on the waters of the Niagara River, beiweon the mouths of the River VVellund and the Great Fall in the Township of Stamford, in the said District of Niagara — and whereas iii truth and in fact the said Robert Randall, ni the time of his taking such oath and making sueh affidavit as aforesaid, had not any freeholj estate in the twelve hundred acres of land, being tlu> north part of lots numlier fifteen, sixteen, seventeen, eighteen, nineteen and twenty, on the south side of the River Welland, in the Township of Wainfleet, in the District of Niagani. And so the Jurors aforesaid, upon their oath aforesaid, do say that the said Robert Randall, o- the twenty-sixth day of July, in the y^ar aforesaid, at the Township of Stuir.tbrd aforesaid, in the said District of Niagara, upon hi' oath aforesaid, before the said Richard Leonard, being such llet'.irning Odicer as aforesaid,& having such authority as aforesaid, by his own act & consent, and of hisown most wicked and corrupt mind, falsely, wickedly, maliciously, wilfully and corruptly in njanner and form aforeraid, did commit, wilful and corrupt per- jury, to the great displeasure of Almighty God, in contomjil of our said Lord the King & his Laws, to the evil & pernicious example of all others in the like case offending, against the form of the Statute in sueh casn mndf and provided, and against the peace of our said Lord the King his Crown and Dignity. ^ (Signed) JOHN B. ROBINSON, JltUimey G metal. J. B. M'AuLEY, Esquire, on the part of the Crown, opened the Prosecution with tlie following Address : — .- May it please your Lordship, !v f Gentlemen of the Jury, -^ Motives of delicacy, owing to some private misunderstanding between the Solicitor General and the defendant, have induced that learned gentleman to dcchne prosecuting the present Indictment, and he has requested me to conduct the trial for him. It is a duty 1 approach, not with reluctance, but with diffidence and concern — diffidence of my own ability to conduct any important criminal pro- secution, unpractised as I am in that part of the Law — concern, that it should be necessary to bring a person fiiUng the liigh and konoura- 'f ^•i" *^ ^^^m ]' 5 ble situation of a Representative of the people of this Province be- jfore a Jury of his County for any crime, most particularly a crime BO odious as that charged in this Indictment — no less than wilful and corrupt Perjury. Of this diaboUcal character of Perjury I am sure T need not speak; of all the long catalogue of crimes, it is perhaps tlie blackest and most detestable ; its very name shocks us; the imputation of it ex- cites our distrust, and renders the accused the object of our caution. Many criminal acts that jeopardize the lives of offenders arc mure excusable. — I'he strong pas-sions which nature for the wisest purpo- ses has implanted in the breasts of men sometimes rise to ebulilion, subdue reason, and drive imhajjpy individuals to commit ras-h and dreadful crimes, at the very name of which they would shudder in cool and dispassionate moments; but in purjury the active feelings are not excited, it is always committed with deliberation, upon re- flection, and with full opportunity of considering its enormity and hateful character — it can only be committed by a low and sordid spi- rit, for low and sordid purposes. Faith in the words and acts of others — confidence between man and man, are first principles in the organization of Societies ; and in all well regulated governments where the hves and properties of the subjects are protected, the rights of individuals respected, wrongs redressed,and offences punished, the testimony of one neighbour on behalf of another must be received, and must be relied upon ; where- ore every precaution has been taken calculated to bind the con- sciences of witnesses and ensure their rigid adherence to truth. — They are required to lay their hands upon the Holy Gospels, and appeal to God himself to witness their veracity, and a violation of the truth is visited with condign punishment, the most degrading and the most disgracoful ; not only so, but the character is lost for- ever to the convict,hc is treated as an outcast from society, he is nev- er again received as worthy of credit, he is excluded in all time to come from giving testimony between man and man, and is branded with infamy that only dies with him. . Upon an accusation for so homous a crime the r'earest testimo- ny bhould be adduced. In 'Ms case I fear it will prove too plain, and conviction must follow. ; However paiut'id it may be, you must as intelligent and honest men, discharge your duty firmly, 't'he facts arc -simple, iuul the Ifiw will be ably expounded to you by the learned Judge who presides, and by the law and evidence you arc sworn to govern your judg- ments. All here act under the same sacred obligations — the wit- nesses are sworn, the Judge is sworn, the jury are sworn, and a due respect to such solemn ties is as essential in the one as in the other. When they are properly respected, justice is purely administered ; but when neglected, forgotten or disregarded by the Judge, the jury or the witness, when prejudice, or passion, or fear, or favour, or af- fection, are allowed to interfere, equal justice is no longer seen be- tween the public and the prisoner, a dangerous example shows it- self, confidence in this our boasted modo of trial is shaken, and a stop is taken that loads towards anarchy and confusion. # " Purjury is by the common law, said to be a nnlful false oath, by one who ')cing lawfully required to depose the truth in any proceed- ing, in a Court of Justice, swears to the point in question, whether he be believed or not." The defendant now before you, is not indicted for any perjury committed as a witness in a Court of Justice, but ratiier for bearing false testimoniy in his own behalf, and in favour of his own estate and interest, upon another occasion. Gentlemen, the indictment details at length the subject matter of the prosecution, it states that a new assembly was called to meet at York the 9th August 1824, that the County of Lincoln was entitled to return foui Members duly \jUaiilied, that the Election was held at Stamford 24th July 1025, that the defendant appeared as a candidate, that he was required to take the quahficatiun oath by \Vm. J. Kerr, Samuel Street, P. M. Ball, Esqrs. and others, having a rijjht to vote at sucli Election, that thereupon he corruptly swore by afiidavit in writing before Richard Leonard Esq. the Returning Offi- cer, in substance and elfcct, as stated in the indictment which you have already heard read. I will now read to you one or two Sections of the Provincial Sta- tute pas!5ed in the last session of the last Parliament respecting the qualiiication of persons to sit in the House of Assembly. By Section 6, it is enacted that after the passing of that act " no person or per- sons should be eligible to be proposed, chosen, or elected, as a Re- presentative or Representatives of any County, City, Riding Bo- rough, or other place of any description, then or thereafter sending a Representative, or Representatives to the House of Assembly of this Province, unless he should be possessed of an unincumbered freehold of Lands or Tenements in this Province to tlie assessed va- lue of Eiglity Pounds, lawful money of this Province." Again by Section 7, it is provided upon reasonable icquest made to any Candidate at the time of such Election, by any other Candi- date, or by any two or more persons having a right to vote at such Election, he shall take an oath in tlie following form, or to the follow- ing elfect. " I A. B. do swear that I truly and bona fide have such a freehold estate (here describe the estate,) over and above all incumbrances that may allhct the same ; and am otherwise qualified,according to the provisions of law, to be elected and returned to serve as a Member in the Commons Houseof Assembly, according to the tenor and true meaning of the actof ParUament in that behalfand that! have not ob- tained the same fraudulently for the purpose of cnabUng me to be returned a Member to the Commons llouse of Assembly of this Province. — So help mc God." - " And by Section IG it is declared, that if any person or persons shall be guilty of false swearing in any Oath recjuired by this act, he shall, on conviction thereof, sutfer tlie like pains and ]>enalties, to which any other person convicted of wilful and corrupt purjury is lia- ble by the laws and statutes. of this Provimce." You are well aware, Gentlernen.that it is the landed interest of the country which is represented by the Members of Counties; no one can vote for any Candidate, unless he (the voter) has a ireehold £8- -^■ tate within the County, and the law has wisely provided that no per- son shall be eli;.il)le to I'-epresent that interest unlcijs he likewise posfleijses freehold properly, unless he lias an interest at stake as WjU as his constituents, and similar to theirs. At the samR time that the Legislature have taken so wise a precaution, care has been observ- ed not to exclude hiitnl)le merit from our Councils by the requisition of any extravagant Estate, a freehold of the assessed value of £Q0, is alone necessary. How reasonable it is will appear when I inform you that the assessed value of an acre of uncultivated land is 4 shil- lings, of arable, pasture, or meadow land, 20s. and of town lots and buildings, probal)ly lower ; but the law requires that such Estate should be unincumbered, and bona Me the property of the Candi- date. Were it otherwise, the whole object of the Statute would be defeated, for an Estate deeply encumbered, as respects the exigency of the Statute, is little, if any, better than no Estate at all. I would here remark, that you are not now to try whether Mr. Randall, at the time of the Election was possessed altogether of a sufficient Estate to (jualify him to be elected, bu*. whether he haa committed Purjury in having sworn to a freehold interest in certain premises in this District, specified in the Indictment and upon which the Purjury is assigned. You must understand, Gentlemen, that in an indictment of this kind, many distinct acts of perjury may be alledged according to the seperate facts sworn to, and that if the party is proved to have sworn wilfully false in any (material) one of them, he must be convicted of that one, though he go clear as to all the others. In the present case, purjury is not assigned upon every material fact, or in other words upon every independent tract of land sworn to by the defen- dant; the two first specified, and lying within this District are alone selected, namely, the Bridgewatcr property, and 1200 acres of land on the Chippawa. False swearing to either of these,(if proved) calls for conviction, they are independent assignments of purjury. At the same time, I should apprehend the defend.int has a right to call for the reading in evidence, the whole affidavit, if he thinks it can benefit his case upon the principle that a witness indicted, (as he is,) may claim to have all his testimony proved, in case it should appear in the latter part that a mistaken statement in the first part (apparently wilfully false) has been .subsequently explained and corrected; this I must apprise you, that as far as the specification of Estate goes, there can be no dependence of one part of the athdavit upon ano- ther. It may be argued in the defence, Gentlemen, that although the de- cndant really had no freehold interest in the Premises upon which the purjuries are assigned, still he may have had imple estate in the lands contained in the latter part of his deposition; but a little reflection will shew its fallacy. The Statute in efhsct requires Can- didates to be po'^ns — if not to him, yet to his order — his appointees — when, I sa;', you receive all this testimony, cau a doubt remain of the ^a'ut of the defendant who stands indict- ed ? Yon will have his own confession on the one hand, and ample proof on the otljer, that the estates in question are vested in others. Ii is not for me to dwell longer upon the subject, or to aggravate She case ; it speaks loudly enough of itself; it was my duty to en- deavour to explain to you the subject matter of the prosecution and tut point out what i thought your duty. If I hava bocn undurstooU, I W ■■ Pi ■f^ t_ I am 80 far satisfied — the rest remains with you. Yon will now hear what Mr. Randall has to say in his defence ; ycju ^vill receive the aid of the learned Judge upon the Bench, to guide you in your way ; and it will be for you then to say whether the defendant be guilty or innocent. Do justice between the public and the individual — 1 ask no more. It is of great im{)ortance to the public in general.and this District in particular, that a full and fair trial be had ; it is impor.tant to thera to know, whether a Member of our House of Assembly hr^ been guilty of base perjury. If you believe the evidence, however painful it may be to you, you must, 1 fear, convict him. It is for you to say however, whether he is to insult the majesty of the laws, or whether they arc to be duly respected — the sanctity of oaths ob- served, and the purity of our Assembly preserved. Hearken to the evidence — let him stand or fall by it alone ^do your duty to your country, to him, and to yourselves; exercise your best judgments- conduct your inquiries with impartiality — acquit your consciences — if you tind the olience established, convict him ; if you find him in* nocent, let your verdict be not guilty. ,'■»! Richard Leonard, Esq. sworn. — W'as Returning OfTicer for the County of Lincoln at the last I'llection — the Election was held at Stamford, July 2G, 1824 — Robert Kandall, Esquire, was a Candi. date — was required to take the qualitication oath by Daniel Street, Wm. Crooks, and others — did take the oath. [Here the affidavit ^vas produced in Court, and witness proved his own certificate of it, ideutifyiug the items of the ltrid;^'ewaler Works, and the 1*0Q acres of laud on t'ne River Welland.] j*<' " ' '-'^^ R. Dickson, Esq. sworn. — Tiiis witnr3s proved a Judgment in fa- vour of the defendant, in an acti(m of Covenant, Randall ts. Phelps, respecting the conveyancp, from the defendant to tlieplaintifl*, of the Rridgewater Works. — Other Judgments and E.xicutions were pro- duced, under which the 1200 acres of land on the W'elland were sold at Sheritf's sale — witness had signed the Sherifi's deed for the same, which was produced and attested by him — it was executed the 4th of May, 1821 — this proj)erty was sold l()r£4t). [Here Mr. Rolpli, as Counsel for the defence, submitted to the Court, without avuil, that as the Counsel for the prosecution had stated his intention to prove a freehold out of Mr. Randall, and the charge of perjury not being for defective qualification, he ought not to be allowed to prove incumbrances.] P. T. Pawling, Deputy Sheriff, sworn. — Witness proved an offi- cial return of " no lands" in the District, signed by himself on the back of an E.xecution against the landf. and tenements of Mr. Ran- dall — was authorised by tl vi High Sherift' to make such returns. The Hon. Thomas Clark sworn.— Witness held a Patent from the Crown for the Rridgewater works. — [The Patent was produced] — It was dated 2d. January, 1810 — it included the whole item sworn to by Mr. Randall, and 10^ acres more. Cross-examined by Mr. . Rolph — witness visited Mr. Randall, while in gaol in Lower •'nntf. / /• m$ mmm mmm» 12 •m I f I jfW' da— saw him in Montreal gaol — asked him to transfer to him (tvit- ness) his (Mr. Randall's) interest in the Bridgewater Works — Mr. Randall had a claim on one third of the Bridgewater Works, under a Lease for 99? years, from General Simcoe — witness visited Mr. Randall in Montreal gaol iur other purposes also. Here the evif^cnce closed, and John Roi-ph, Esquire, Counsel for the defence, addressed the Jury as follows : — May it please your Lordship, ^' " • • ' Gentlemen of ike Jury. — If on this occasion I am borne down and almost subdued with anxiety, you, who are acquainted with the ro- mantic history and eminent worth of Mr. Randall, and the malig- nity of the charge which his enemies have preferred against him, will readily find lor me an ample apology. When I hear the crime of perjury imputed to such a character — when I see the power, in- fluence, and talent, which have generated this prosecution, and care- fully nursed it to its present stage — when 1 contemplate the magni- tude of the duty which this defence has imposed upon mo — liow much I have to meet, to answer, and explore — I feel it necessary to soUcit your most hberal indulgence. The learned gentleman who opened this prosecution informed you, that His Majesty's Solicitor General, though present at this mo- mentous trial, declines conducting it, from motives of delicacy. His motives I do not impeach ; hut when I recollect, that 1 have had to encounter his eminent abilities in making repeated, though unavail- ing, applications for relief for Mr. Randall in other matters, I had some reason to expect tliat he alone would engage against me in the great public inquiry now before us. The Crown, however, has otherwise arranged it, and I find myself constrained, in effect, to contend with the combined talents of three of the iiblest lawyers in the Province ; for, this indictincnt was originally fromed by the At- torney General, nearly a year ago, (and as we ought to assume) with the consummate skill of the profession ; from that time nearly to the present, it h&s been in the maturing cu.stody of the {solicitor General, and after passing (if I may be allowed the expression) through the digestion of their great mindr, it comes ready chylilied into the hands of an Executive Councillor, acquiring, indeed, from him tho weight of talents inferior to neither of them, and the influence of an address the most prepossessing to the public mind. When this unfortunate gentleman beholds such a combination of splendid talents in operation against him, is it not enough to make him almost sink into the very earth 1 But no — he shall stand erect in the face his country — for 1 am not alone in this great struggle — fam assisted by my learned friend upon my right hand, and further aided by my truly worthy and learned friend Dr. Baldwin, nor least is the assistance which I have derived from my learned friend Mr. Baldwin, who inherits the intellect and the honour of his father. — Let us then with boldness enter upon the inquiry, though wo must mGCt f?*^ champioBB in tl^ field. \ v. ■\ 13 jfl^ -^ The learned Counsel assured you of the deep concern with which he approached the prosecution of such a man for such a crime — a concern which the whole country feels, and in which you, Gentle- men, cannot fail to participate. But compared with the solicitude of ins friends, Major Randnll feels nothing. Long accustomed to persecution — the child of misfortune, and the companion of trou- bles — thisJast effort to crush him, seems to awaken in him no emo- tion ; for 3ad experience has taught him, that nothing is too hold to be attempted against his property, his character, or his person ; and sensibility being exJiaustcd by continued grief, leaves him without his native buoyancy, and he would with paiisive confidence repose himself undefended upon the integrity of hia country But his friends, and many they are, would stay the further progress of this last outrage against his character, and the country which he serves. They desire to witness a free and impartia investigation in the face of the community, that he may receive, on this trying occasion, that justice which he has so long needed. It has long been the fashion, from motives the darkness of which I can scarcely penetrate, to cry down Randall — reduction from wealth to comparative poverty, has exposed him to the scorn of the proud and tlio influential ; but in how estimable a view does the character of this people apjiear I — a people who have extended mercy to the merciful — protection to the oppressed — and who have generously continued their confidence to the calumniated veteran in the public service. Randall has tasted the bitterness of protract- ed impri.sonment in a foreiijjn gaol — and it is now proposed to make him suffer martyrdom in the pillory ! For years he was immersed in a dungeon in Lower Canada, wheve he suffered privations, the detail of which would make humanity shudder. Engaged, as you are, in the active and diversified pursuits of life, there is much to occupy your attention, and divert it from a thousand vexations which are attendant on the fato of the most fortunate of men ; and even when business has lost its interest, or brought fatigue, nature opens her exhaustless stores, to invigorate tjio body, to delight the senses, and to regale the mind ; but in a gaol, there is nothing to fill up a tedious existence — it is there almost worldlr.ss as the grave -—no important trifles to incite desire—no prospects of succes.s to animate with hope ! Randall's care-«\-om soul, vacant of employ- ment, and harrowed up by thought, was there left to turn upon itself for years to witness its own forlorn wretchedness, to mourn the pros- pect it had lost, and brood over the miseries to com''. It was thought that the poverty and wretchedness brought upon him, would break down the spirit of the man ; that nature, however buoy- ant, could not bear up against such complicated woes. Many, ma- ny a man, thus made a prey to accumulated sorrow, is doomed to hang the head of despondency, and when ushered into prison, every remnant of former vigour, that might promise a successful stru^fle, is soon exhausted by despair. But Randall survived the wreck of his property, and the miseries of a prison. Instantly, upon his emancipation, he flew to his trusty, noble, and mngnnnimoiis I)istrict, with all the ardour of a patriot, the intensity of whose feelings had / k pip mmmmmmm 14 I, accumraulated under long and painful suppression. Upon his return to his fellow citizens, he was received with open arms, and almost all rejoiced to see delivered from jeopardy, one who ne- ver did an injury to any man, nor refused in his prosperity a bene- faction solicited for sulSering humanity. He who for years that were past, but not forgotten, had done good and dealt both honestly and liberally among you, was greeted on his return with the good wishes of a generous people, and public esteem and public confidence were eminently displayed by electing him a guardian of the public interests. This high confidence has been reposed again and again in him ; and during the discharge of the important trust so confided in him, what has been his crime ? I will not tell you— glean it from public opinion— read it in the journals of your Assem- bly — hear it in the r'-proaches of the wicked, the envious, and the disappointed. Gentlemen, the indictment alleges that an election came on— an election at which it was hoped hy a few, that this patriot senator would lose the goneroUs patronage of a free and independent people. It was fairly presumed, that a man so placed, under circumstances not quite reasonable to name, cx>uld not be eligible under the new statute ; and when invited as a candidate, by the general voice, he was required to swear to his qualification. For that purpose, he subscribed a deposition, and upon that deposition, the perjury is as- signed. In order to shew the captious nature of the charge, let us dispassionately consider the nature of the oath required, and com- pare it with this bold accusation of perjury, on which they would put Randall =n the pillory. The substance of the oath reqtiired is, that the Candidate has a freehold to a certain value, over and above all incumbrances that may affect the same : " I, A. B. do swear, that I truly and bona fide have such a freehold estate, • [here describe the estate,] over and above all incumbrances that may affect tlio same ; and am otherwise qualified according to the provisions of Law, to be elected and re- turned to serve as a meniLor in the Comiftons' House of Assembly, according to the tenor and true meaning of the Act of Parliament in that behalf; and that I have not obtained the same fraudulently for the purpose of enabling me to be returned Member to the Com- mons' House of Assembly of this Province. — So Help me God." — And here, gentlemen, I am constrained to make a painful pause at the recollection of the unconstitutional construction which the learn- ed gentleman endeavoured to impress upon you. Tt never was — it never can be law, (unless the representation commit treason against their constituents) that a judgment of five pounds can so incumber an ample property of ten thousand acres, as to disqualify the owner from serving you in the Provincial Parliament. It is still more alarming to hear that the word inay, in the oath required, can be so fearfully enlarged in its meaning, as to destroy the eligibihty of a candidate, because he has given a bond that may affect his estate. — Let not your conviction of his learning, or your sensibility to his por- ■uasive address, or the weight of his opinion as a member of the Ex ' ecutive Council, upon a great constitutional question, mislead you \ you re,'? Id to sanction with a verdict a doctrine so monstrous, that the esta' blishment of it would, in effect, blot out the 31st of the late King. It is, be assured, equally our duty as your own, so to construe every statute as to enlarge &, not to abridge — to expand & not to narrow the elective franchise. Recognise such a construction, and the right of representation is frittered away — we, who have hitherto boasted of being blest with British liberty, shall iind ourselves only covered with its shadow — and that epitome of the English constitu- tion, which has hitherto been the political idol of this Province, will be despoiled of its most endearing characteristics. But why have they introduced into this prosecution evidence of incumbrances ? 1'he learned gentleman announced in his opening tliat he should prove the freehold of the Bridgewater property, and the land on the river Welland, to be in the Honorable Thomas Clark. He has done so, and on that very account, the existence of incumbrances was the oiure palpably foreign to this prosecution ; for Randall stands accused of perjury, not for swearing to an insuffi- cient freehold, but for swearing to a freehold in property in which it is alleged he had none. With great ingenuity, however, the incum- brances were first established, lest the previous proof of the free- holds being in other persons should the more unquestionably i)re- clude such testimony as wholly irrelevant and inadmissible. plain — and there is not a king upon the throne, not a Htatesmaa in the cabinet, not a judge on the bench, or a representative of ih« > 1* t 4 ."^Sfc" n people, who might not be hold up as an object of suspicion, or be- come thn subject of public inquiry. It is, thcrofoie, our duy to form our judgment from the wIkjIo, aud not i'rom fragments — to -search after the intention of tlio doj)onont from the whole of the deposition, and the circumstances connected with it, just as we would judge of a man's character, not by a single incident, but by his life, taken altogether. ^ ., In this deposition, you observe many '>tlier estates, in other parts- of the Province, on which he claimed a rijjht to rcprepcnt a Hiding in this magnificent District. In tlie early purl of llic iadictitiont,- the whole deposition is set forth — in the latter part of it, perjury is M assigned only as respects the I?ridgowater proiicrty, and the l!i;,<|g ~ on the River Welland ; and therefore his right to the residue of the proporty is undi.sputcd. Wliat, then, is the ground of tlip per- jury ? What are the reasons for prefoning such a clmrgc, and nur- turing it to its present stage 1 It is because he possibly mistook a lea.sehold for a freehold; and because hia title to 1200 acres out of 3,200 acres, may be ipjestioned ! So that the crime, as it ap- pears from the indictment itself, is not any deficiency of qualiiica- tion, but because he is not literally qualifled to the full excess to which he unnecessarily deposed ! lie is to be put into the pillory, not because he has not proved enough ; but because he needlessly proved too much ! I put it to your hearts, Gentlemen, 1 ask you, ^ is this a righteous prosecution ? If in swearing to the dimensions of a field, a farmer should call it one acre, with what ejjithet would you denounce the charge of perjury against liim, because upon an accurate mensuration of somo skilful surveyor, it turns out to be one acre and one inch ? What think you of the charge of forgery, or its aflinitive crimes, against one of our moat wealthy merchants, because in making a payment of a th'''Usand dollars, one of them was discovered to be bad 1 — Sliould a man be degraded in the pillory, who swears, that he saw nineteen sheep committing a trespass, because some sharper will swear that one of them was a ram? [General laughter.] And shall every .Member of Parliament be pelted with rotten eggs, who happens to give in a superabundant qualification, and erroiieously includes a leasehold, with an abundant freehold estate ! Gentlemen, this indictment bespeaks its own shame and its own condemnation. The act requires a certain qualification — that qua- lification Mr. Randall possessed, and the very indictment admits it; yet, he is t(j be handed down to posterity as infamous, because one • |^ fact out of many is erroneous, and when even that fact might be effaced from the deposition, without atlecting the object of it '} No, the Bridgewater property, and the land on the River Welland, are not the whole of his qualificniion, but only a small part, which may be struck out from the schedule, as surplussage ; and yet this unne- cessary statement, which was not intended to mislead, and which caused no deception, they would magnify into wilful and corrupt perjury ! , " Christianity is the Common Law," and it will not, therefore, ■urnrize you, that I can turn over many a page of venerable authe- '■ 1 ijt ^*. rity to ahew the tme character of this prosecution. " Tliat part of the oath, upon which the povjury is assigned, must be material ta the matter then under consideration. As, for instance, if a witness be'aslied whether goods were paid for on a particular day, and lio svv'cars in the affirmative ; if the goocte were really paid for, though not on that particular dny, it \vill not be perjury. So that if a man •wears that .1. S. heat him with a sword, and it turns out that he beat him with a stick, this is not perjury ; for, all that was material was the battery." Let us apply this to Randall. He has sworn to his qnulificatlon, and speciiied several estates ; yet he is not per- jured, though his claim to one of those estates should bo doubtful or even wholly unfounded ; because, all that was material was his eligibility. Gentlemen of the Jury — to prove that Mr. Randall had no title to the P.ridgewater properly, and that he knew it, the learned Coun- sel produced this excmplificHtion of a record from the Crown office, in York, containing a judgment for J^l<», being itself, as you see, nearly 40 yards ; but this record, if it proves any tiling, proves the very reverse. You all heard it read, from the beginning to the end ; and the earnest attention you paid to its contents, only requires from me now a brief summary of its volurninoHs matter. We know that a lease for the Bridgwater property was granted by the late Go- vernor Simcoe, to M'Gill and Cauiby for 999 years. These per- sons assigned their term tc Harnsay and I'he'.ps, and Phelps under- took and covenanted to coivey it to Randall. Randall, dissatisfied with the insufiicient mannot in which I'heljjs fulfilled his covenant, brought an action against him, which is fully detailed in this lengthy record. And what says the wstea ? " That Phelps did convey to Randall, according to his covenant." !f, therefore, the first part of the record implies thiii FandHll from his complaint enjoyed no right to that properly under Phelps, lh« h.tter part, under the oaths of 12 men, declares that Randall was deceived, for that Phelps had assign- *«d all his ri^ht and title tlx^leto, a;rrecable to his covenant. Having thus estabH;-hed for me, by the recorded verdict of a Nia- gara juiy, the right of Randall to the I'helps share oflhe Bridge- water property, what was my afitonislimer.t to find produced by the Crown a subsequent deed, in fee-siiniije, for the very same property, to another person, the Honorable Colonel Clark ? I-et, then, Mr, Randall, enjoy his lease for 990 years, a term which must, never- theless, be carved out of the perpetiial inf( u'.«t, so unaccountably Tfiven in a subsequent grant under the Creat i^eal ; for, we live un- >^ oer laws so hap]>y and so just, that the leasehold is not lost or merg- ed in the fee-simple sinc<; given to another person ; because even the king himself is so far upon a level with his subjects, as to be bound in that respect by the same rules of common honerty. The evidence on the part of the prosIisapprehenpions under oath occur every day ; yet this is the first which has become the object of prosecution. Perhaps there is not a man in a public station, who has not sworn faithfully to disi;haruo the duties of his office ; and such is the frailty of luunan nature, that not one of them could bear the scrutiny of malice. How often have I se-^n and heard of complaints before magistrates, upon de- positions which ought neither to have been preferred nor received ; depositions grounded on misapprehensions which have occasioned oppression in this Province, to an extent perhaps not experienced from the same cause in any other country. Yet have I heard it said by public men in public places, " that such misapprehensions are er- jgi rors of the head & not of the heart ; that they must and ought to be ■ overlooked, or who, unless sheltered in such cases under the wings of the Executive, would assume either to prefer complaints or ta receive them." And who, I ask, will become your public servant — who will devote their time and talents to the pubhc welfare, under your suffrages, if they are to be exposed in a pillory, for every Btflo misapprehension of title, or for every flaw, which the cunning of a lawyer can detect T Shall these men who represent yourselves, (though they happen to be in opposition to the present policy) — shall they, and they only, be singled out for public opprobrium ? — shall their errors, and theirs only, be magiufie4 into crime, to iacft* T 1 pacitate lliom for public life — to rob you of a public servant— 19 iitain their reprepentation— to agonize their feelings, and utterly de- solate their expectations 1 "*•„•> ?| Metliinks there is already rendered an almost impossible verdict— I hear from a few the screams of inordinate triumph—" Up with Kandall to the pillory !— Nail his ears to it !--J am his head hetwoen " it» pillars l—Felt him with rotten eggs, and filth, and mire, and dirt ! Loud him with reproaches ! — Behold Randall ! — The friend of the people ! — The choice of the peopl« ! — lately at the head of the '^ Lincoln Poll, and now elevated to the pillory !" because he happen- ed to assume, that if an estate for life is a freehold, on estate fur 909 years must assuredly be such ! Good God ! is it possible that j'ou can feel indifference, when you see the very Hustings of your country, which ought to be free as the air you breathe, surrounded with legal quibbles, legal entities, lawyers nets, and lawyers cobwebs, in order to ensnare the unwary, and supply the pillories with food — so that no candidate can swear to his qualification — no voter enjoy the elective franchise, without first Hying, with a munificent fee to some hungry lawyer, to read his deeds, and examine his titles, lest some malicious informer — or some wary prosecutor shall entangle him in an error, subject him to the scandal of an accusation, and then hold him up as a public spec- tacle I Can you slccn contented, while a veteran in your public service in not only stnpt of his hard earned property, but hitcrally caught in a lawyer's cobweb, as a proper step to the ignominy of the pillory ] Can you repose with peace upon your pillow, while Kan- dall is tlius made a public sacrifice, because lawyers say that a lease^ for 999 years is not a freehold ? If so, sleep on in your lethargy, till the time shall come, in the midst of your supineness, when the evening of your prosperity shall hasten on — when multiplied mis- fortunes shall involve you also in irretrievable embarrassments — when He " whose ways are past finding out," shall suddenly turn the tide which hns hitherto borne yon forward in its prosperous channel— when some unexpected cloud, pregnant with mischief antf charged with malice, shall suddenly burst amidst the seeming sere- nity of your sky, and leave you, like my persecuted client, at the mercy of disappointed ambition— at the mercy of disappointed men, first grasping at your property, and then at yourselves, and the same cloud of misfortune, which has hitherto gathered over the head of . the unfortunate Randall, shall accumulate on yours, till you shall fall victims in a less honorable cause, banished, like a Gourlay, or put in the pillory, like a Randall, without a country to pity your suffer- ings, and without a jury to redress your wrongs 1 All this, and more than this, to its fullest measure, is well deserved by those who can: contemplate, without emotion, the degredation of a faithful public servant, or, with indifference, consign him to the triumph of his ene- mies, that he may drink the cup of bitterness to the very dregs ! Gentlemen, I beg your pardon; for I feel half convicted of in- dulging in the language of censure, so improperly applied to you, who fully feel the dignity of the station you are empannelled to fill, and tbe valuo of the character yea are this day appointed to try.— v^ 22 .t- But I feel, anci fueling T am constrained to speak as an ET>- jng as true all which they have even attempted to prove, I will free- ly hazard the fate of my client upon its utter insulHciency. This property, as the evidence imphes, Mr. Randall once owned ; and it iecame vested in another, by a conveyance from the Niagara She- riff Have they produced any the slightest testimony to raise even a rational presumption that Mr. Randall was aware of the change ? Have they called upon any of Mr. Randall's numerous friends who «ncircle this seat of justice with anxious solicitude, to prove that he ■ever knew, or ever heard of this conveyance, by which so fine a pro- perty was wrested from him for a trifle ? Have they even shewn, 4hat notices of sale were given in places so public and so conspicu- ous, as to afford a conscientious presumption of his knowledge of tlie transfer 1 Nothing of >the kind has been attem{)ted, because jiothing of the kind could bo establisJied. The crime, then,as it is pre- sented by the evidence, is the crime of not knowing the secret act •of a third person ; and it would ill become you to allow your imagi- nations to supply the deficiencies of such a prosecution. A man who himself executes a conveyance, is faitly presumed to remember dt ; but a wasteful sale made by another, Avithout his presence or jbis concHrrence, must be clearly brought home to his acquaintance, ■before it can be made a platform by which he is to ascend to the .pillory. But suppose, for a moment, what is not proved, that Mr. Randall heard of the sale, by some floating rumour which might be presumed to credit ; and, T ask, where is the crime of assuming that the villany which the evidence discloses, could not take pro- perty ftom one man and vest it another 1 Here is a case, where a valuable tract of land of 1200 acres, on the banks of the Wellaud, * ^' b sold for £40 1 In this instance, m in too many others, to which my attention has been dirrcted, Sheriifs, in the plenitude of their power, and hacknied in their office, expose for a small sum an ex- tensive property, instead of dividing it into separate lots, that the debt for which the oacriiice is made, may be di»chariied n ith the least possible injury to the owner. A notice is given which can scarcely attract attention ; three or four persons meet together, and go throutrh the ceremony of an auction ; thus, in a few minutes, a large and splendid property is fated by the hammer of an auctioneer to lell for little more than the price of a single acre. Fraud is well known to make void any transaction ; and you, I feel assured, would not have considered it as establishing the charge of perjury, even had it happened that Mr. Randall apprised of the sale, pronounced it amidst his indignation at the injury, a species ot robbery by which he could not be lawfully stript of his property to aggrandize another. [Here Mr. JM'Auley interrupted Mr. Kolph, observing that he could neither prove vitlany nor robbery in this transaction, and that Counsel slu)uld only state whut they expected to prove. Mr. Rolph resumed.] Gentlemen of the Jury : It is my duty to comment on the evi> dence, and to point out to you, that although Mr. Randall might have been apprised of the sale, yet, he might, without the imputa- tion of perjury, have held it as nugatory ; since from the evidence offered by the Crown, we find established a wicked and wasteful disposal of a man's property at an unwarrantable sacriffce, which must be reprobated, and nut sanctioned by I'lnglish Law. [Here Mr. Rolph was again interrupted by the High bheriff*, who declared that Mr. Rolph's statement was not true. Air. Rolph — I am instructed that I can even prove what I have stated. Sheriff" — Sir, you have used very warm language, and my feelings are very deUcate. Mr. Rolph — I have a very warm and a very delicate cause to ad- vocate. 67icri^— Well, Sir, be careful of my feelings. Mr. Rolph — 1 will be as tender of your feelings, as I would be of my own. Mr. Justice Campbell, without checking the interruption, observ- ed to Mr. Rolph, that he had used very strong language, such as ought not to be used, without proving the facts, and that property was often sold very low, when inciunbered. Mr. Rolph — My Lord, 1 do not in this case fori it my duty to con- jecture, to tlie prejudice of my client, beyond the evidence produced. My zeal may have carried me too far ; but strong facts require strong expressions. Mr. Rolph ai;nin proceeded.] . i Gentlemen of the .^ury — Lvt us leave an enquiry which we can- not conduct without giving off'ence in a degree which leads to in- terruption ; but 1 leave it with an assurance, that you will not fix on the character of a Representative of this iJistrict, a stain wliich ap- pears to be unmerited from their own evidence. If misappreheusioud be perjury ia Mr. iiaudall, how criminal r . ^- *^^'^%^MHi^'' »,*/1 ^ I 111 i'i y B }l; must it lie in lawyers 1 This indictment and prosecution betray in« accuracies which would alone powerfully plead in extenuation of the mere misapprehension of this unfortunate pentleman. Men of the first talents in the Province — men wlio have enjoyed all the ad- vantages which an English education, and an EngHsh University can bestow — men who have enjoyed the advantages of many years' maturing experience in the law, and the aid of many a massive folio of learning most profound, have been concerned in preparing this indictment, and arranging this prosecution ; and yet do we lind some misapprehensions, not unworthy of your notice. 'J'lie Provincial Statute requires the persons making the requisition of the Candidate, to be themselves freeholders ; and the indictment, therefore, ought to have contained a clear and positi\ e averment of their qualifica- tion to make the request ; but the subsequent words, " and other persons having a right to VG*a at the saiil election," do not apply to the previous names, as an auoquate averment according to the exi- gency of the Idw. Again, as tlie statute authoi it-cs on\y JrceliolHcr.t to make the request, tlje learned Counsel should have proved them to be such ; for it does not appear from the testimony produced, that the officious gentlemen who demanded the deposition of the Candi- date, were themselves clothed with the qualilicntion required by law ; and unless Mr, lianddll was " lawfully refpiired tc take the oath," he is no more guilty of perjury than he who takes before a magistrate one of those voluntary and extra-judicial aflidavits, upon which, the crime of perjury caimot be assigned. The law also requires the materiality of that part of the oath upon which the perjury is assigned, to be averred, with legal precision. [Here Air. Rolph read authorities to the above ellect.] But upon looking into the indictment on which they would exhi- bit Mr. Randall in the pillory, no sncli averment can be found ; yet in the case before us, such an averment is particularly required ; for that part of the oath upon which the i)erjury is assigned, is palpably imnittterial. The whole object of the atlidavit was to prove his eli- gibility, and striking out the liridgewatcr works, and the land on the Kiver Welland, there remains abundance in the deposition set forth in the indictment itself to establish his qualification. This indespen- fiible averment was therefore very prudently omitted, lest the inser- tion of it should force upon the mind of the reader, the absolute nul- lity of the prosecution. But why do 1 point out these fatal errors in the indictment, since Mr. Randa';, as well as his advocate, would scorn to seek any other acquittal than what flows from your convic- tion of his ii'uocencc 1 I merely mention them that you may see that they do not escape our observation, though we disregard them as a defence, and also, that you may fairly forgive Randall for mis- takes upon the Imv, when even the first rate lawyers arc not exempt from them. (jleutleinen, Mr. Randall is, in truth, charged with perjury, be- cause he swore that he had afieehold in an estate which he held only as a tenant m common for 9'J!> years. We have assumed in our reasoning that it was a misapprehen^sion, «.^ one which was not unna- tural or so outrageous as to imply corruption ; and the nioro decid- '•^ -"^.r cdly so, being established, there remains enough in the depoaitiott to put his eligibility beyond a doubt. There is another view of the subject still more striking, still more true, and afibrding equal evidence of his innocence of this great offence : the oath required by the statute not only describes a free- hold, but a freehold over and above incumbrances. Mr. Randall thought that should he merely swear to a sufficient freehold, those ..y ^ emissaries who infest elections to raise a hue and cry against the real object of the people's choice, would assiduously promulgate every judgment, satisfied or unsatisfied, righteous or unrighteous, which could be found against him. Such reports might prejudice his repu- tation and leave an unfavourable impression on the minds of those, to serve whom is his only desire to hve. At the hustings he met th«^ aggregate of his enemies, few indeed in number, but powerful in in-* iluence. He was placed in a conspicuous situation, where every act was to be perverted, every declaration misconstrued, every calumny revived, and every political stratagem and electioneering intrigue put into activity against him. To obviate the injurious insinua* na of these political critics, he determined not only to name his freehold estates, but such other property at the same time, as would unques- tionably leave those freeholds without incumbrance. He named, therefore, his leasehold, not as the property on which he rested hia eligibility, but as afibrding evidence of sufficient means to answer incumbrances. "■"his construction of his conduct is evidently correct, when you consider that to his leasehold he superadded the compensation mo- ney in the hands of the Receiver General. It cannot be for one mo- ment assumed that he thought money was in itself a freehold, though he might fairly point to it as exonerating that freehold on which he grounded his quaiilication. In fact he jumbled togetlier, in one de- position, the freehold itself, and the property which would release it from incumbrances. Hence it appears, that the course he anxiously pursued to make the truth more apparent, became the very ground of artful construction by w hich he was to be arraigned for perjury. Had he simply deposed to a qualification on one of his freehold es- tates, every judgment recorded against him would have been pro- duced in triumph, as afibrding a presumption of wilful and corrupt misrepresentation under oath, tor which he ought to be tried by a jury of his country. To avoid ilie conjectures of the su.-spicious, and the wiles of the crafty, he superadrlcd to his freehold conclusive evi- dence of tts. sufficiency ; and then he is tortured with accusution for the superabundance of hia statement How true it is, gentlemen of the jury, that when an unfortunate man is singled out us a victim for persecution on account of his principles or his politics, no upright- ness of intention, no p'\roi:ess of living, no cirr umspection of con- duct, not oven a conscience void of oBence before (Jrod and man, can shivid him from the assaults oi' tlie proud, or the invasions of the wicked. It terns as if Providenre, in his unsearchable decrees, will allow one man in humbler life to be the sport and victim of others claiming loftier preti'nsions ; perhaps either to awaken his peopU to an abhorrence of tlie principle, or as a caution to themsclve's 2& to slmn the pame vortex of unhallowed power, or as an example to nerve themselves «ith Christian fortitude against the tyranny of op- pression, and the vicissitudes of troubled life. Why was he not charged with perjury respecting the compensa- tion money 1 The term " freehold," equally appUes to the money 8s to the 1(171(1. But Slid, an allegation would at once have exposed the idleness of the j>rosecution for any public purpose. It would at once betray the real and obvious intention of the deponent, viz: not to impose money upon the world as a freehold, but as the means of discharging its incuiiibianccs. I ask you — Does all this deserve the pillory, or is it worthy of a prosecution 1 Inatead of cornniittiiig perjury, he is only guilty of a .) scriipidous desire to avoid even the appearance of it. And while % the indictment alleges a wilful and corrupt intention to deceive, you, with an unjaundiced eye, will discover conscientious exactness, and purity of intention. Perjury is coimnitted either to work some mischief, or to acquire some good. What mischief, then, sprang from Randall's perjury ? It could not deceive, for the very children who play about the streets know the mysterious history of the Bridgcwater property. It was not requir- ed as an auxiliary at the el(>ction, for the aflidavit contains abun- dant evidence of his eligibility. And what good did he acquire to himself? The liatred of those whose ambition he disappointed, or whose jilans of humiliation he frustrated ; the troubles and labours of a public hfe ; the resentment of men in office; the heavy responsibility and painful anxiety inse- parable from political difl'erences, and legislative duties ; the frowns of power, and the utter sacrifice of all expectations, except tlie FRiE.N'DSHip OF THE I'F.opi.K. Are thesc to be estimated as boons for which perjury would be i>erpetratcd ; a perjury, loo, which must inevitably be detected, and 'v hen detected punished with the exem- plary rigour which it deserves] By no mt ans. Your suspicion might, indeed, be awakened, if you beheld him raised high in mili- tia military rank, glittering with cpauietts and girt with a sword; groaning und<'r offices ; enri<.'hed with choice locations ; and intoxi- cated with the smiles and the caresses of men in power and influ- ence. But suspicion gives place to downright incredulity against the charge, when you behold RANDALL, RANDALL still- without promotion — wilhout favours — and without rei^ard for hia labours, save the consolation of an upiiyht course, and the unvary- ing friendship of a failhlul and generous people. For many years Mr. Randall has laboured to rein.state himself in the property of which he has been bereft; and at this very moment a menjorial upon the subject is before the King in Council in that great nation, which is the fountain head of justice, when all other sources fail. 'I'his justice has been the objert of his earnest pursuit for years before this d(>position was made ; and when we find a man, now only possessing a little, be.«t(»uing all he can spare or bring to his assistance for the recovery . f lij^ property, we arc constrained to k«U«ve that he conaidereU his -luim well grounded. Who, then, that 2t has witnessed his conduct for years, can in their hearts accuse him of swt'iiring to property in w hich he thovghl he Iiud no title ? Tlicse circiinistances in liis Hfe, occurring at a time when they could not he subservient to a prosecution llion hidden amongst the arcana ol' the future, present, in favour of the purity of his intention, a testimony which no trifle can repel, no eloquence do away. But Mr. Randall has already been acquitted! and with you I wel- come the glad tidings. This deposition was not made in secret or hidden in a corner. It was ma- Mr. Randall immediatrly became the iheuu ,by harping upon which, it was hoped he might be excluded, that otiitrs mijfiit occupy his place, and revel in all the luxury of Ictjislalive subserviency. ]Jut what was the conduct of his constituents ! what the construction of a discerning public 1 Almost all voted for Mr. Randall — and every vola was an acquittal from the foid charge which you arc now eni- pannolled to affix upon him for ever ! Gentlemen of the jury — It is time I should cease to further tres- pass upon your liberal indulgence ; but as I draw to a cimclusion, I feel an awe which you participate. You are to judge of the merits of the prosecution and of the defence: and when I cease to adtlress you, a short interval will determine the inq)ending crisis. Your ver- dict will either consign him to misery and insult, or restore him to his friends and to his country. Not only Mr. l?andall, but the pro- vince is in your hands; for who will enlist in the public service and depose to his (}uaIi(ication, if he is subject to be successfully singled out by some base informer, thrown under some frivolous pretence into the hands of a vindictive prosecutor, and threatened with the ignominy of the pillory ? VVotdd the mischief stop here, or be con- hned to candidates alone? No. IJy the aid of a little professional subtlety, it would soon spread its paralyzing influeiic(! through the wJjole elective franchise. One lawyer now tells you, that a sinuU incumbrance, like a little leven, will vitiate any quiilidcation ; ano- ther, and 1 am bold and proud to be amongst the number, will equally deny and abhor the doctrine. Shall, then, the fate of every candi- date and e^ry voter lluctuate with the opinions of a profession ever memorableTor contradictory decisions ? Or will ymt, with maidy firmness, stifle tin attenq)t in embryo, by judgmg of your representa- tives with that Christian candour and ennobling charily, which will for ever put a persecutino spirit to the blush I Gentlemen — My client hns long don« his duty to you as a public man ; and long may he continue to serve ynti. It is for you this day to fill i\\) the measure of duty you owe to him. He never has, and never will comjjromise any honourable feeling in serving you ; and lie, tts well as his advocate, would disdain to seek ^ heller under that compassion to which he is, indeed, entitled, but v. Iiich is unworthy the greatness of his cau.se, and the clearness of his innocence. He calls upon you to pronounce him s^uitdj or no) f^uillij upon your con- 'h % IMH ,28 sciences before God. I now deliver him over into your hands — and in so doing, oh 1 glorious constitution ! 1 place him in the bosom of his country. i It I Mr. Justice Campbell — Have you any witnesses to call 1 Mr. Rolph — I have some witnesses in attendance ; and I will con- sult my learned friends as to the necessity of calling any of them. Mr. Rolpli, having consulted the gentlemen of the profession about him, said, " We here rest our case." Mr. M'Anlcy rose to address the jury ; but upon its being object- ed to, a.s a right confined to the Attorney and Solicitor General, and on the recommendation of the C!ourt, Mr. M'Auley did not press a reply. But he begged to observe, that Mr. Rolph had misrepresent- ed i:is meaning in saying that he thought or had said that a bond was an incumbrance on land. Mr. Rolph — The gentlemen about me understood you as I did. JMr. Justice Campbell — It is of no consequence. The learned Judge then delivered to the jury the following . CHARGE. & :t Gentlemen of (he Jury. ^ The case under your consideration is one of great importance, inasmuch as it may fix the crime of wilful and corrupt perjury on no less a character than that of a Representative of the people in the Commons House of Assembly of this Province. But you must divest your minds of every consideration as to the circumstances or itandiug in life of the person in question ; whether he be a Repre- sentative or not, is the same thing to us ; if he has committed a crime, and that it is substajitiatod by evidence, he must abide da. consctpiences. However we might be 'll^jposed to excuse a Repre- sentative, in trifling matters, you can harbour no feeling for or against any individual charged with so high a crime as the one be- foio us. You have, no dotil t, heard a great deal of this subject out of doors ; but whatever opinions or prejudices you may have form- ed upon it, you must set altogether aside, and confine yourselves to the evidence which has been dehvered — upon that alohe you must decide. Gentlemen, the crime of perjury has already been explained to you by the learned Counsel on both sides ; yet I feel it my duty to refresh your memories uix)n it. Perjury, Gentlemen, is a crime committed by a perhon swearing wilfully, absolutely, and falsely, in a matter material to the point in question, when a lawful oath is required from him, in judicial proceedings. The perjury now in question, however, is not founded on any judicial proceeding, but on the authority of an Act of our Provincial Parliament, which requires Candidates for our Assembly to take a certain oath respecting the property necessary to qualify them to become members, and de- 29 clarcs that when that oath is taken falsely, it is wilful and corrupt perjury, and liable to all the pains and penalties proscribed l)y law for that offence. This, Gentlemen, is the kind of perjury charged in the present case. Let us now proceed to see how far this charge is substantiated by evidence. You will observe, Gentlemen, that whether Mr. Randall be qua- lified to sit in our House of Assembly or not, is not a matter now before you — it has nothing to do with the present quostion — it is another question, wliich cannot be affected by your present verdict ; but the charge in the Indictment is, that when Mr. Randall was le- gally required to take the oath prescribed by tiie Act of Parliament, that he did swear, in positive terms, to a certain freehold property in the Bridgewater Works, on the Niagara lliver, in the Township of Stamford, and also, in 12()() acres of land on the River Welland, TownshipofWainflect.to which, at the time of his taking such oath, he had no legal claim. Then, Gentlemen, if you find that he had no freehold property in these estates, and that they actually belong- ed to another at that time, it will be your duty to find him guilty, without trusting to the arguments of the Counsel on cither side, which were certainly very able and ingenious. Your oath says, that you will well and truly try and a true verdict give according to the evidence. Now the evidence, as respects these two properties, namely, the Bridgewater Works, and the 1200 acres of land on the River Welland, has been very cleary brought before you, and well arranged by the learned Counsel who conducted this prosecution. In the first place, he has produced the proclamation for a meeting of the Parliament; he next produced Mr. Leonard, the Returning Ofticcr, to show that an Filection took place at Stamford, in this District, on the 27th July, 1024 ; that Mr. Randall was a Candi- date ; that he was required to take the oath, in a legal manner ; lie named four persons, and stated that there were several others, who required this oath from Mr. Randall ; that Mr. Randall did take the oath, and swear that he had a freehold at th,it time in the Bridgewater Works, and als»o, in the 1200 acres of land on the River Welland ; and by his deposition it appears, that he swore to all this in precise, absolute, and positive terms. The learned Counsel has also brought before you a judgment and execution against the lands and tenements of Mr. Randall, upon which a re- turn was made, that he had no lands or tenements in the District of Niagara. But these are matters of record, that do not at all fix the crime of perjury upon him, and upon which you cannot find him guilty ; because, although a Sheriff could not find any of his lands or tenements in the District, he might have them at the same time. Therefore, you are only to view this return as corroborative of other facts. There are other matters, Gentlemen, brought forward in evi- dence, which rest with you to determine, and whicii I feel it my duty to point out. The freehold of the 1200 acres of land on tho River Welland, as sworn to by Mr. Randall, it appears in evidence, mmmmmmf* had been abscdutely changed to another person by virtue of a She- riff's deed, at tlie time that Mr. Randall took this oath. It has been argued by the learned Counsel for the Defence, with 3ft. a degree of zeal which caused him to use expressions that no- thing but liis own feehngs could justify, that this property was sacri- ficed at the Sherifl's sale. If such were the case, it ought to have been proved, and [ should never give my sanction to the sacrifice of property; but it often happens that a great deal of property is sold by the Sheriff for a small sum, when the property is incumbered, without any blame to be attached to the iSheriff for so doing. I do not, however, presume to say that the property in question was in- cumbered. It is very well known that when property is incumbered in this colony, the purchaser buys it subject to such incumbrances, and therefore, when the learned Counsel threw out an accusation of the kind, he ought, in justice to the officer, to have proved it. 13ut the material point in question is, was or was not Mr. Randall in possession of this property at the time that he took this oath ? A public sale, and a Sheriff's deed of this property to another person was proved, and this cannot be done away, except by a document of a superior authority. By these papers it appears, that so long ago as the 4th of May, 1821, the freehold in this property was in another person, and not in Mr. Randall. The next material point is the Bridgewater Works, and the best of all proofs, the King's Patent, was proved to be issued in favour of the Hon. Thomas Clark, so long ago as the '2d of January, 1816. It is alleged, however, that the Crown had no right to give a Patent > for this property, because they had previously given a lease of it for 999 years. How far the then Governor of this Province had power to issue such a lease, is not for me to say ; nor whether Mr- Ran- dall had a right to a freehold from such a lease ; nor whether he sanctioned its conveyance to another person ; the King's Patent, wliich was proved before you, is the best of all titles, and cannot bo done away by any other title ; so that if a person have a lease of a property, and that it be given under a Patent to another, the person holding the lease can only make application to the Crown, by laying a memorial before the King in Council in order to obtain a remedy ; and if Mr. Randall could show that he was dispossessed of this pro- perty in an improper way, the Crmvn would remunerate him. But here is the King's Patent to the Hon. Thomas Clark, for this pro- ^ perty, since 10 IG, and whether it contains the same property sworn to by Mr. Randall, the Hon. Thomas Clark himself is a competent • witness, in a Crown prosecution like this, and he testifies that this f, Patent contains all that Mr. Randall swore to in that item, and 10^ acres more. A question was put to this witness, whether he had seen Mr. Randall in guol in Montreal, and whether he did not ask Mr. Randall to make over to him any claim that he had upon thin property. This question was not directly to the point, and it ought not, strictly speaking, to have been put ; but it was put,and Mr. Clark admitted that Mr. Randall had a claim on this property. Admit- ting all this, and that Mr. Clark wished to purchase all incumbrances against the property, he was uut bound to do so, and even if he was, »'W" '^.l| 31 any condition of the kind between them then, would not affect tijfi Crown prosecution, at present — nor does this lease from Governor Simcoe even appear in the evidence in this case. You know nothing of it, therefore ; but you know that the property belongs to another person, by a Crown Patent, dated 2d January, 1816, and also, that the property of the 1200 acres of land was given to another person under a Sheriff's deed, in ftte month of May, 1821. The question then arises, whether Mr. Randall's false swearing in this case, amounts to perjury 1 If you can suppose that Mr. Randall was not acquainted that th. •r "4 :p