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RELATiNG TO CAPITAL OFFENCES; WITH AN EXPOSITION OF ITS PROVISIONS, '.,*■ IN A CHARGE OF ••'J:: *?*< ■1 "*^■ ;* CHIEF JUSTICE ROBINSON, TO THE GRAND JURY OF THE HOME DISTRICT; APRIL, 1833. York, Upper Canada: Printed by Robert Stanton. n H r} juJsV .1' Jt. % c/J'. h/ i^/^ UPPER CANApA. " / ■' c-y / / Statute 3d, \Ym. \V. Chap. 4. RELATING TO CAPITAL OFFENCES; WITH AN EXPOSITION OF ITS PROVISIONS, IN A CHARGE OP CHIEF JUSTICE ROBINSON, TO THE GRASD JURY OF THE HOME DISTRICT: APRIL, 1833. York, Upper Canada : Printed by Robert Stamton. ^ .- wii illNW ,;,'ii.ijm' i m' qveoovp ?\' 'hi]. Win. IV. Chai). 4. An ACT lo reduce ihc nnnihcr of cases in ivhich Capital Piinifihmcnt 7/101/ be inflicted ; to provide other pioiiahiiicnt for oJJ'' nccs which shall no loiv^cr be Capital ciflcr the pas- sivg of this Act ; to abolish the yricile^j^n called, benefit of CI erg If ; and to vialce other ahcralionis in certain Criminal proceedings before and after conviction. Prcaniblr.AV HEREAS it isfiltlmt it slioiild be plainly di'clnrtMl in llic Stntiites of this Proviiiro, for \\ liat crimes olilnrlcrs shall be liable lo be pnni^bod with dciUh : Ami whcr-jas it docs not seem to be Iiidispen>ible, for the sociirit}' niul well bciiuj^ of socict3', that llic piinlslimeiit of death should be inllicled in any other cases than tho?e heicMiialier ineutioiied : — Be it. therefore enacted by the King's Most EjiccMeut ?v[ajeF.ty, by and with the advice and coijsc;ii of I'.ic Legislative Council and Assembly of the Pioviiice of Upper Canada, constituted and assembled by virtno of and under the authority of an Act passed in the Parliament of Great Llriiain, entillcd, "An Act to repeal certain parts of an Act passed in iho fourtccnlh 3'ear of His JMiijcoly's licign, entillcd 'An Act for Uiaking more effectual provision for the Government of the Province of Quebec, in North America,' and to make furtlicr provision for the Government of the said Province," and by the au- What of- thorily of the same, That if a j)erson do compass or ^fl^W imagine the Death of our Lord the King, or if u Capital, person do levy War against our Lord the King, In Hians lo the number " of twelve, or more, and there to make, or cause to be made, *• Proclamation in manner aforesaid." And it Is in the said Act further enacted, that *' if such persons so unlawfully, riotously *' and tumulluously as-embled, or twelve or more of them, after *' Proclamation made in manner aforesaid, shall continue toge- " ther, and not disperse themselves within one hour, that then ** it shall and may be luwfid to and for every Juslire of the ** Peace, Sherifl*, or Under Sherlfl' of the County where such *• assemblies shall be, and also to and for every High and Petty *' Constable, and oilier Peace Olllcer within such County, and ** also to and for every i\l:iyor. Justice of the Peace, Sherilf, " Bailiir, and other 1 lead Ofiicer, High or Petty Constable, ** and other Peace Odiccr of any City or Town Corporate, '* where such assembly shall be, and to and for such other per- *' son and persons as shall be connnandcd, to be assislinj^ unto *• any tjuch Justice of the Peare, ShcrilV or Under Sheriff, ** Mayor, CailiiT, or other Head Ollicer aforesaid, (who are '• thereby authorised and empowered to command all IlisiMajes- *' ty's Subjects of age and ability, to be assisting to them ihcre- *' in,) to sei/c and apprehend, and they are thereby required to *' sei/e and apprehend, such persons so unlawfully, riotously, '* and tumultuoiisly continuing together, after Proclamation •♦ made as aforesaid, and forthwith to carry the persons so ap- ** prehended before one or more of IJis Majesty's Justices of •* the Peace of the County or place where such persons shall be ** so apprehended, in order to their being proceeded against *• for such their oflences according to Law; and that if the " persons so uidawfuHy, riotously, and tumultuously a>semblcd, *• or any of them, shall happen to be killed, maimrd or hurt, " in the dispersing, seizing or apprehending, or endeavouring " to disperse, seize or apprehend tliem, by reason of their resist- " ing the persons so dispersing, seizing or apprehendipg, or " endeavouring to disperse, seize or apprehend tliem, that then ** every such Jnstice of the Peace, Sherifl', Under Sheri/i*, " Mayor, Bailifl*, Head Oflicer, High or Petty Constable, or *' other Peace Oflicer, and all and singular, persons being aid- 8 " ing and assisting to them, or any of them, shall be free, dis- •* charged ind indemnified, as well against the King's Majesty, " His Heirs and Successors, as against all and every other person and persons, of, for, or concerning the lilling, maim- ing, or hurling of any such person or persons, so unlawfully, " riotously and tumultuously assembled, that shall happen to *' be so killed, maimed, or hurt as aforesaid." And it is in the said Act further enacted, that " if any persons unlawfully, riotously and tumultuously assembled together, to the disturb- ance of the Public Peace, shall unlawfully, and with force, demolish or pull down, or begin to demolish or pull down, any Church, Chapel, or any Building for Religious Worship, certified and Registered according to the Statute made in the first year of the Reign of the late King William and Queen Mary, entitled ^^ An Act for exempting their MajeS' ty^s Protestant Subjects dissenting from the Church of Eng- land from the Penalties of certain Laws;" or any '*Dwel- ** ling-house, Barn, Stable, or other Out-house, that then every ** such demolishing or pulling down, or beginning to demolish or pull down, shall be atljudgcd Felony, without benefit of Clergy, and the oflenders therein shall be adjudged Felons, *' and shall snfler Death as in case of Felony, without benefit " of Clergy." And it is in the said Act further enacted, that '• if any person or persons do, or shall with force and arms, '* wilfully and knowingly oppose, obstruct, or in any manner •• wilfully and knowingly let, hinder or hurt, any person orper- " sons that shall begin to proclaim, or go to proclaim, accord- •' ing to the Proclamation thereby directed to be made, whereby •* such Proclamation shall not be made, that then every such •• opposing, obstructing, letting, hindering, or hurting such " person or persons so beginning or going to make such Pro- ** clamation as aforesaid, shall be adjudged Felony without " benefit of Clergy, and the ofienders therein shall be adjudged " Felons, um] shall sufier Death as in case of Felony, without " benefit of Clergy ; and that also every such person or persons *' so being unlawfully, riotously and tumultuously assembled, " to tho number of twelve as aforesaid, or more, to whom Pro- *• clamation should or ought to have been made, if the sj.me *' had not been hindered, as aforesaid, shall likewise, in case '• they or any of them, to the number of twelve or mor^^ shall <( u It t( It (( (( ig the same, or any of them, shall not be certified or registered, as provided in the said Act. XIV. And ivhereas by a certain Act of the Parliament of Great Britain, passed in the twelfth year of the Reign of King George the Third, entitled ^* An Act for the better securing g . . , *' and preserving His Mnjesty^s Doclc Yards, Moga- Statute, *' zines, Ships, Ammunition and Stores,^^ it is enacted, ch ^4°" ^' "^'^^^ " if any person or persons sliall within the Realm, specting " or in any of the Islands, Countries, Forts or Places inff h[s' " thereunto belonging, wilfully and maliciously set on Majesty's " fire, or burn, or otherwise destroy, or cause to be Naval Ar- " ^et on fire or burnt, or otherwise destroyed, or aid, senals. &c. «' procure, abet or assist it the setting on fire, or burn- recite . „ jjjg,^ ^^^, otherwise destroying, of any of His Majes- " ty's Ships or Vessels of War, whether the said Ships or Vessels •« of War be on float or building, or begun to be built, in any of " His Majesty's Dock Yards, or building or repairing by con- " tract in any private yard, for the use of His Majesty, or any of " His Majesty's Arsenals, Magazines, Dock Yards, Rope Yards, ♦* Victualling Offices, or any of the buildings erected therein or 10 *• belonging thereto, or any limber or materials there placed, for " building', repairing or lilting out of Ships or Vessels, or any of " His Majesty's Military, Naval, or Victualing Stores, or other (( Ammunition of War, or any place or places where any sucli Military, Naval or Victualing Stores, or other Ammunition *' of War is, are, or shall be kept, placed or deposited, that then " the person or persons guilty of any such offence being thereof *' convicted, in due form of Law, shall be adjudged guilty of " Felony, and shall suffer death, as in ca^es of Felony, with- •' out benefit of Clergy:" And tuhercas also, by a certain " other Act of the Parliament of Great Britain, passed in the " Second and Third Years of the Reign of Queen Anne, enti- British tied " An Act for pimh/iing Mut'uiti, Desertion^ and "^T&;^'i "/'^^^^'^ Mns/.c.rs, and for hcUer paying of the Army Aiinc, oh. ^^ Olid ()'dariers, and for salhftjing dicers Arrears, ft^a''!""^ " ^'^^ fi'' (* f^'^'^f''^*' coiUiauanct of the powers of the Treason ^' five Coninii^idoners for llic eraiuming and dclcrmin- oSicoror " *"i^* ^^'^ Accoiiufs of the Army" it is enacted, That Soldier to " if any Ofiicer or Soldier in Her Mi'jesly's Army, ron'l v.iih '* shall either upon land out of England, or upon the thoEiicmy " sea, hold correspondence with any?rebel, or enemy of i, re- " He*' ^l^i\ie^^tyj or give them advice or intelligence, ** either by letters, messages, signs or tokens, or any manner of way whatsoever, or shall treat with such lebels or ♦* enemies, or enter inlo any condition with them without Her *' Majestys's Licence, or Licence of the General, Lieutenant " General or Chief Commander, then every such person so " offending, shall be deemed and adjudged to be guilty of High " Treason, and suffer such pains and penalties as in case of H igh Treaj^on." Be it iherejore enacted^ That cited. (( The above Ac\<^ of 12 Geo. 3,rh. 24, and 2 fc 3 A;)nc,rh.20, not noihing in this Act contained shall be construed or taken to afil?ct, in any manner, the provisions to bcatrociecl by of the above in part recited Acts, or either of tliis Act thcni. ' XV. And he it further cnaded by the authority aforesaid, Siatutcpof That so much of an Act of the Parliament of this m!r%^"' P'*"^*"<^^» passed in the Thirty-sixth Year of the Keign (ico!'vii. of King George the Third, entitled ^^ An Act for the i J 38Geo. «« better regulation of certain Coins current in Ih's (( t( T 11 ! hfo'i'ch " Province.^^ — And of An Act passed in the Pailia- 1 sJiuros ment of this Province, in the Thirty-tiijhlh Year of !;''7'r'^.Mhe Reign of King George the Third, entiiled «'4/t named in '* Act to eniauitih Oil a yermaiicnt joolm^f ilic bomi- SS" '' darylia'is of ihedlffcnnt TowiuhipH ,f this Pro- pealed. viitco- And of an Act pushed in the Parliament of this Province, in the Fortieth Year of the Reign of King George the Third, entitled '' An Act for the fur liter ialrocluc- •' iioii of the Criminal Law of England in this Province, and *^ for the more eff'eciiw I punisknifAit of certain offenders,''^ and All of the several Acts of the Parliament of this Pro- Aud also, . I • • ... ^ ^, somuchof vmce, pasr^ed lor aitlhonaing the issuing oi Go 'ern- tiii"n^g'^" "^6"^ Debenture.*, as provides that any ofi'ence in any makes it of tliose Slalnles respectively menlioned, shall he Foioc tuiy pnnishablewiih death, shall be, and the same is^ hereby Gov'ciii- repealed; and that &n« h oiTenres shall continue to be bcNiiiucfor of the degree of Felony, and the pers-on? convicted utter any thejeof shall be liable to the ptinishmcnls, or any of Dclfciiiuie them, which are by this Act provided in respect to Fe- ^c. lonies generally, which are not punishable with death. Persons XVI. And he it further enacted hy the authority or'outum^ fl/oyevr/Zt/, That if any perron shall be indicted for ed, to he any ofl'ente made Cypital by thivS, or any other Statute m'the^^ miide or to be made, such person shall be liable to the saniemn 1- same punishment, whether he or she shall be convicted Jonvicicd by verd'.ct or confession, or shall be outlawed, upon by veidict. indictiment ; and this as well in the case of Accessories as of Principals. XVII. And he it further enacted hy the authority afore- Certain sttid^ That if any person being arraigned upon any forms of indictment for Treason or Felony, shall plead thereto meSs- ap^eu of "Not Guilty," he shall by such plea, with- penscd out any further form, be deemed to have put himself ^ upon the Country for trial — and that if any person being arraigned upon any indictment for Treason or Felony, Standino- shall Stand mute of malice, or will not answer directly mute. ° to the indictment, in every such case it shall be lawful for the Court, if it shall so think fit, to order the proper officer io enter a plea of " Not Guilty," on behalf of such person, and 5 I I I I 12 in- ■ f the plea so entei-ed, shall have tho same ibrce and effect, as if such person had actually pleaded the same. XVIII. And he it further enacted hy the authority afore- Challen \na *'^*^» 'That if any person indicted for any Treason peremptorii} or Felony, shall challenge peremptorily a greater ?i?r7thai^° number of the men returned to be of the Jury than thoLaw such perso:> is entitled by Law so to challenge, in any of the said cases, every peremptory challenge beyond the number allowed by Law, in any of the said cases, shall be entirely void ; and the trial of disre-rarded. gudi person shall proceed as if no such challenge had been made. allows. Such chal lensre to be XIX. And whereas in certain cases of High Treason, as the Law now stands, the sentence or judgment required by Law to be pronounced or awarded against any persons con- vicied or adjudged guilly of the said crime, in such cases, is, that they should be drawn on a hurdle to the place of execution, and there be hanged by the neck, but not until they are dead, Sentence ^"' ^^^^' ^'^^^ should be taken down again, and tliat in certain when they are yet alive their bowels should be taken HHi °^ ^'"^ ^"^ burnt before their faces ; and that afterwards Treason their heads should be severed from their bodies, and mi 1-,'a e . ^^^^\^ bodies divided into four quarters, and their heads and quarters to be at the King's disposal : And ivhereas it is expedient in the said cases of High Treason to alter the sen- tence or judgment now required by Law : — Be it therefore finacted hy the authority aforesaid^ That in all cases of High Treason in which, as the Law now stands, the sentence or judgment ordained by Law is as aforesaid, the sentence or judment to be pronounced or awarded from and after the pass- ing of this Act against any person convicted or adjudged guilty shall be, that such person shall be drawn on a hurdle to the place of execution, and be there hanged by ihe neck until such person be dead ; and that afterwards the body of such person shall be dissected and anatomized. Persons -^^* -^^^ ^^ *^ further enacted hy the authority convicted aforesaid, That whenever any person shall be convict- * ^ ' ed of Murder and executed therefor, the body of such m 13 as if murderer shall be delivered by the Sheriff, or his Deputy, and Tobedia- his Officers, to a Surgeon, for the purpose of being lected. dissected and anatomized. XXI. And be it farther enacted by the authority aforesaid. Sentence That sentence shall be pronounced in open Court im- whentobe mediately after the conviction of such Murderer, and before the Court shall proceed to any other business, unless the Court shall see reasonable cause for postponing the Terms same ; in which sentence shall be expressed not only of the the usual judgment of death, but also the time appoint- Bcn ence. ^^j ^^^ ^j^^ execution thereof, and the mark of infamy hereby directed for suck ofienders, in order to impress a just horror in the mind of the offender, and on the minds of such as shall be present, of the heinous crime of murder. XXII. Provided always^ and be it enacted by the ^^' authority aforesaid, That after such sentence pro- nounced as aforesaid, in case there shall appear reasonable cause, it shall and may be lawful to and for such Judge or Justice, before whom such criminal shall have been so tried, to stay the execution of the sentence, at the discretion of such Judge or Justice, regard being aUvays had to the true intent Judge and purpose of this Act : Provided also, that it shall J"*y o™er be ill the power of any such Judge or Justice, to ap- to be dis- point the body of any such criminal to be dissected eected. ^^^ anatomized. „ XXIII. And be it further enacted by the authority persons aforesaid. That from and after such conviction, and to'b^e*'-** j*Jdgment given thereupon, the Gaoler or Keeper to edited for whom such criminal shall be delivered for safe custody, shalfbe ^'^^^^ Confine such prisoner to some cell, or other kept after proper and safe place within the prison, separate and sentence. ^^^^.^ f^^^j^ ^j^g other prisoners ; and that no person or persons whatsoever, except the Gaoler or Keeper, or his Ser- vants, shall have access to any such prisoner, without licence being first obtained for that purpose under the hand of such Judge or Justice before whom such oficpder shall have been tried, or under the hand of the Sheriff, his Deputy or Under 14 ■ In casfi of Slierifl': Provided always^ lliatiu case aii)^ such Judge respito, or JusllcG sliall see cause to respite tlie execution of t;(!"iis'inny sucli on'ondcr so condemned as aforesaid, such Judge burulaxcd. q^ Justice may relax or release any or all of the re- straints or regulations hereinbefore or hereinafter directed to be observed by the Gaoler or Keeper of the Prison where such prisoner shall be confined, by any licence in writing, signed by such Judge or Justice, for that purpose, for and during the time of such stay of execution, any thing hereinbefore contained to the contrary thereof notwithstanding. XX [V. And be it further enacted hy the authority aforesaid, TluU after sentence passed as aforesaid, and until the execution tlieieof, such ofitMu'er shall be fed with bread and water only, except in case of any violent sickness, or wound, in which case some known Physician, Surgeon or Apothecary, may be admitted by the Gaoler or Keeper of the said Prison, to ad- minister necessaries, the christian and surname of such Physician, Surgeon or Apothecary, and his place of abode, being first entered in the books of such Prison or Gaol, there . . to remain; and in case such Gaoler or Prison Keeper nient of shall oflend against, or neglect to put in execution, any Giolcnor ^^ tj^j, direcJions or reQ,ulaiions hereby enacted to be ding these observed, such Gaoler or Prison Keeper shall ior such oflence forfeit his ofllce, and be imprisoned for a time not exceeding three months, upon conviction thereof by indictment. „ - » XXV. Jind he it farther enacted hy the authority Clerirv aforesaid, That from and after the passing of this Act, abolished, benefit of Clergy in this Province shall be abolished, end that the same need not in any case be prayed, and shall not in any case be allowed, any Law, Statute or Usage to General provision the contrary notwithstanding ; and that in all for the punishment cases of crimes made punishable by this Act specified in this Act, witli death, the efllect of such provision shall be the same as in the case of any ofience which, before the passing of this Act, was made Further regula- tions. Food of Convict. Attend- ance of Physician or Sur- geon. rop;ula- tions which, before this Act, wore minis' nhlc with death, . either with or With- punishable with death without benefit of Clergy ; out benefit oi r /. • ?, Clergy. and that all persons who may hereafter be duly DH of fed any IkniBlimcnt. Tranppoita- lion. [mprison- mciit. 1; convicted of any offence not specified in lliis Act, find wliicli before the passing thereof was punlsliable in this Froviiue with dealii, willi or niiliout benefit of Glerfiy, shall be liable to be bani>het), or to be tran-;portc{| beyond lie seas for life, or for such term not less than sovrn years as the Court before which sach person slinil be convicted shall adjuclgo ; or shall bo liable, in case such Court shall think (it, to be imprisoned only, or Ilurdlabour. imprisoned and Kept to hard lal)our, or in solitary ►Soliiaiycon- confinement in the C- nmon Gaol, or in any Peni- mciacn . teniiary or Mouse of Correction that may be j)i ovided for such purposes, for any term not eMcedin^j; fouricen years, llctm-nin^r exccpt persons convicted of reldrning from trans- fioiii Trans- porlalion or from banishment, uiih respect to whom the term ot nnpnsonmenl, wiih or without hard labour, or by solitary confinement, may, if the C'ouit shall think fit, be extended to the term of his or her natural life : and that Man.siauc>h- '" *"'^'^^ of ivlanslau'ihlcr, the oii'ender shall be liable tei'. to be fined or imprisoned, or both, in the discretion of the Court, Provhlcd that such imprisonment shall not ex- ceed twelve calendar months: And i)rou'uhd, that the otl'ence of Manslaughter shall be punishable by such fine and imprison- ment only, and no* by all or any of the other descriptions of punishment in this claoye before mentioned. XXVJ. And be it Jarlher enacted ly ilicauihorify Felonies of- aforesaid^ That if any person shall be convicted, fenclois may ^f^gj, ^\^q passing of this Act, of Forgery, or ot uttering or set m the any forged deed, will, instrinnent, note, bill or Pillory. writing, or of falsely personating any person or persons, which forgery, or which uttering, or which labe per- sonating was, before the passing of this Act, punishable with death in this Province, the Court before w hich such person shall be convicted may, if they shall think fit, adjudge such person (unless in case of a female) to be set in the pillory, once or oftener, or to be once or oftener publicly or privately whipped, at such time or times, and at such place or places, as they may direct, which punishment shall either be in addition to any other punishment which the Court, according to law, may award, or otherwise, as may to them appear proper. !l &t I t*~ ' n. CHARGE Of CHIEF JUSTICE ROBINSON, TO THE GRAND JURY OF THE HOME DISTRICT, APRIL, 1833. Mr. Foreman^ and Gentlemen of the Grand Jury : So far as I may judge from the Calendar, the number of cri- minal charges which you will be called on to investigate at the present Assizes is not unusually great, nor does there seem to be any thing remarkable in the character of the offences charged. And at all events you have been su frequently reminded of the principles which should govern your decision in respect to the several descriptions of crimes which are to be found in the Calendar before me, that I am sure I may not improperly waive any particular instruction to you upon this occasion, except in regard to one of the cases of homicide, which, from its parti- cular circumstances, I shall feel it proper to make the subject of some observations to you, before you retire. I am the more inclined to forbear entering at present into those explanations which you have most of you heard frequently repeated from this place, in order that I may, without trespass- B ID \t • iiig very unreasoinbly upon your time, take some notice ol'the matcriul chuuf^e wliicli has been made in the Criminal Law of tliis Province, by a Statute recently passed. 1 tliink it will not be uninteresting to yon, and that it will not be without its use, if 1 state plainly, and us shortly as the subject will admit, the intention and effect of that Statute. This is the first Court of Oyer and Terminer which has been convened in the Province since its passing, and the alterations which it has made in onr Criminal Law are so extensive, and of so much interest, that it is fit they should engage particular attention upon this first occasion of carrying them practically into eflect. You are aware that in October 1763, soon after the defi- nitive Treaty of Peace, which confirmed the cession of the Province of Quebec to the Crown of Great Britain, a Royal Proclamation was issued announcing the various arrangements which His Majoi-ty had sanctioned for the well governing of that Province, and of the other important acquisitions made by His Majesty's arms in that successful war. At the time of the conquest, the Province of Quebec contained about 65,000 in- habitants, entirely Canadian French ; and it was reasonably anticipated that the pursuits of commerce and agriculture would lead many to remove thither from the other dominions of Great Britain. With this expectation it was declared, in the Royal Proclamation I have referred to, that until Legislative Assem- blies could be called — "All persons inhabiting in, or resorting to, the conquered Colo.iies might confide in the Royal protec- tion fjr the enj )yment of the benefit of the Laws of England :'* for wb^ch purpose His Majesty announced " that he had given power to erect Courts of Judicature, and Public Justice within the several Colonies for the hearing and determining all causes as well criminal, as civil, according to law and equity, and, as near ;^.s might be, agreeably to the Laws of England" 19 It was in this manner and by this form of words that His Majesty gave to the Inhabitants of the Province of Quebec, both the civil and criminal Law of England, which being thus introduced, continued to rest upon the basis of this Proclamation until the year 1774, when in the rcignof that same jusl and be- nevolent Sovereign, wliose memory will ever be revered, a Statute was passed by the British Parliament, in which it was declared, that some of the provisions made by the Proclamation for ihe Civil Government of the Province had been found inap- plicable to existing circumstances ; and in a spirit of indulgent respect for the wishes and opinions of the people, who under their ancient government " had enjoyed for a long series of years A constitution and system of laws by which their persons and property had been protected, governed, and ordered," it was enacted that for the future "in all matters of controversy rela- tive to property and civil rights, resort should be had to the laws of Canada as the rule for the decision of the same." This enactment abrogated the law of England in respect to CIVIL MATTERS, and restored the ancient laws of Canada; but the CRIMINAL LAW of England was expressly retained in the Province by a clause in the same Statute, which admiring as I am sure we all sincerely do, the principles of our criminal law, and the spirit in which it is administered, I think it worth while to repeat to you in the terms in which it is expressed. It is in these words:" — " And whereas the certainty and lenity of the criminal law of England, and the benefits and advantages result- ing from the use ot it, have been sensibly felt by the inhabitants from an experience of more than nine years, during which it has been uniformly administered : Be it therefore enacted, Sic. That the same shall continue to be administered, and shall be observed as law in the Province of Quebec, as well in the description and quality of the offence, as in the method of prosecution and ill 20 trial, and (he punishments and forfeiiurcs thereby inflicted ; to tiie excUision of every other rule of criminal law, or mode of proceeding therein, whicii did, or might prevail in (he laid Provincr, before the year 17G4, nny thing in this Act to the contrary notwithstanding — subject nevertheless to such altera- tions and amendments ns the Governor, Lieutenant Governor, or Commander-in-Chief for the time being, with the advice and consent of the Legislative Council of the snid Province, shall from time to time cause to be made therein, in manner herein- after directed." * / By the Statute passed in the 31st year of the same reign, which made this a separate Province, and gave to it a separate government, and a Legislature, the same power to make alte- rations and amendments in the Criminal Law, which in the clause I have cited from the former Statute was reserved to the Gover- nor and Legislative Council of the Province of Quebec, was transferred to the Legislature of Upper Canada, so far as re- garded this portion of the Province which had been thus divided. The first Session of the Legislature of this Province under its separate government, and new constitution, took place in the year 1792; and the first Act of that Session was to substi- tute the law of England in the place of the law of Canada* " as the rule of decision in all matters oj controversy relative to property and civil rights.** This had no respect to the Cri- luinal Law which was allowed by the Legislature to rest in this Province, upon the foundation of the Statute of 1774, (14 Geo. 3, ch. 83) with any alterations which had in the mean time been made by the ordinances of the Governor and Legislative Coun- cil of Quebec. These alterations were neither many nor Im- portant, and the Legislature of this Province did not think it necessary to advert to the subject of our Criminal Law, with 21 any general view, until the year 1800, when it <»truck tlieirulten- tion that by the 14 Geo. 3, ch. 83, the criminal Inw of England had been introduced simply as it stood at that time, and that since the passing of that Statute, amendments had been made in it by the Mother Country, which it was expedient to intro- duce and adopt in this Province. These amendments and improvements they did accordingly adopt, and incorporate them with our criminal law, by a short and comprehensive clause, enacting, " ihnt the criminal law of England, as it stood on the 17lh day of September, 1792, should be the criminal law of this Province." They carried forward the adoption, you will perceive, no further than to the 17(h day of September, 1792, the day on which the first Session of the Legislature of Upper Canada was opened, conceiving, as I suppose, that with respect to any improvements made between that period and the year 1800, when they were passing this Act, it would better become them [as the country had enjoyed during that time a separate Legislature] not to adopt in the gross the changes made by another Legislative body, but to select and enact as measures of their own, such of them as they might think judicious, and adapted to this country. Thus we see, that from the establishment of the British. Government in Canada till the year 1774, the criminal law of England continued to be the criminal law of the Province of Quebec, (as it was then called) deriving its sanction from the King's Proclamation. From the year 1774 to the division of the Province, it rested upon the authority of a British Act of Parliament (14 Geo. 3, ch. 83) and continued indeed to do so here, until the year 1800, when the Legislature of Upper Ca- nada recognized it as in force, ^nd expressly established it as the criminal law of Upper Canada, adopting it as it stood on Il ' 22 the 17th September 1792. Throughout the whole of this pe- riod, from the year 1774 to 1800, and from thence to the pre- sent time, it has been subject to any alterations which the Le- gislative power acting in the Province of Quebec before its division, and in the Province of Upper Canada, nnce, ha» thought proper to introduce. Si. .1 alterations, however, have been very sparingly made. They have neither been many nor very important. By an ordinance passed while the Province was undivided, simple larceny, when the goods did not exceed in value Twenty Shil- lings sterling, was made Petty Larceny only, whereas by the Law of England, to constitute the offence of Grand Larceny, the goods stolen need be of no greater value than Twelve Pence. And by the Legislature of this Province, since the division, some particular enactments have been made for punishing the counterfeiting of gold and silver coin, and of foreign bills and notes. But with these exceptions, and a very few others, it has only been necessary to inquire what the crirninal law of Eng- land was on the 17th September, 1792, in order to learn what was the law in this Province, both as it respected the crime and punishment. : » it In the mean time, the criminal law has not been so sta- tionary in England. The changes made in it, since the year 1792, have not extended to us; but they have been numerous, and have almost invariably tended, (particularly those of the latest date,) to mitigate the severity of punishment. In imitation of this humane course, the Legislature of this Province passed in their last Session, the Act which I am about to explain to you, in which, proceeding upon the same princi- ple of mitigating the severity of punishment, they have gone 23 considerably beyond ihe limits which iiave been set to the relax- ation in Ailngland ; while they have aimed at other advantages in their manner of making the alteration, which will appear to be of no small moment, especially if we consider the peculiar state of our Statute Law, arising from our situation as a Colo- ny, and from our having adopted iudistrimiuately, the whole criminal Statute Law of England. The recent Provincial Statute which I am speaking of, applies only to those offencp* which before its passing, were PUNISHABLE WITH DEATH, either with, or without benefit of Clergy, and it has these important effects upon our Criminal Law, and its administration. ^ . 1st. It sets forth in one Statute, (and that not a long one) all those cases in which the life of an inhabitant of this Province can be affected, by sentence of a Court of Law. 2nd. It reduces the number of those ofiences which are to be punished with death. 3d. It provides a suitable punishment for all those ofTnices which, before the passing of this Act were punishable with death, with or without benefit of Clergy, but which since the passing of this Act, are to be no longer punishable with death. ' 4th. It makes certain alterations in the method of proceed- ing in criminal cases, among which are the abolishing entirely the privilege called " Benefit of Clergy," and the mitigating the sentence in the case of High Treason. Before this Act was passed, you will remember, that if any inhabitant of this Province, desired to know with certainty, what criminal accusati^ ns could aifect his life, he must in the first place, have examined carefully, all the British Statutes passed before the 17th September, 1792j because these I 1 4 24 were all adopted by our Legislature in a body* and made to form part of our criminal code. He must in the next place, have examined the British Statutes passed SINCE 1792; because, as the British Parliament retained the power of making laws relating to crimes and punishments, which should apply in any part of the King's dominions, it is impossible to determine by a>'>v other means than an actual search into the Statute book, whether they have exercised that power or not, and in what cases. He must '.hen have looked carefuly over our Provincial Statutes, which now fill a volume of considerable bulk, and by which it will be found, that our Legislature have created some capital offences to be added to those adopted from the English Law. And after he had made these researches, which would have required no little time and labour, the investigation would not have been complete until some accurate compilation of good authority, of the criminal law generally had been I'e- ferred to, for the purpose of ascertaining whether there were not some offences which, at common law, were capital, inde- pendently of any Statute. In passing the Act to which I am now calling your atten- tion, the Legislature have taken upon themselves the responsi- bility of this extensive se«irch : they have expressly declared what offences shall hereafter be punished with death, and having specified these particularly, they have gone on to pro- vide *4hat all persons who may hereafter be duly convicted of any offence not specified in this Act, and which before the passing thereof was punishable in this Province with death, with or without the benefit of Clergy, shall be liable to" certain other punishments which the Act particularly prescribes. Thus, for the purpose of ascertaining what offences are capital in this Province, the reference will now be made to i 25 this Statute of moderate length, which being in our own Statute Book, is easily and generally accessible. And it is evidently for the purpose of fulfilling this object of the Statute the more completely, that the offences mentioned in the 14th section were particularly noticed. Those are of- fences which the British Parliament have made capital in all the colonies, and they are merely recited in this Statute, with a declaration that they are not to be affected by any thing con- tained in it. They are thus plainly spread to view, for the information of the people of this country, and are not left as heretofore, to be looked for in the British Statutes at large, where they might but too easily escape observation. In the same manner, and no doubt for the same purposes, the pro- visions of the Statute passed in the i-eign of George I, com- monly called the Riot Act, and the provisions, with some alterations, of the Statute 25 Geo. II, respecting the passin^f sentence upon persons convicted of murder, are transferred from the British Statute Book, and made in effect part of this Act, in order that all may readily have knowledge of enact- ments so important in their nature. The latter are inserted as being expressly enacted by our Legislature — the former are merely recitea as being a part of ourcrim'" ^ law by adoption, which this Act is not intended to interfere with : the effect as to both, is to place them distinctly under view, in order that all periions concerned, may have ready recourse to them. Nevertheless, it is to be borne in mind, that the Imperial Parliament will still retain the power of creating other capital offences in this, as in all other portions of the King's dominions ; and in this manner the catalogue contained in this Statute may be added to by a power beyond our own control ; but this is inevitable ; and in point of fact, I imagine the list of capital Ifai ' 26 offences, is by no means likely to be varied by any such Act— • for I am not aware that the British Parliament has made any offence capital in the Colonies, or at least in this Colony, since we received our Constitution ; or that there is now any British Statute in force, which has been passed within the last sixty years, under which the punishment of death can be inflicted in this Province, otherwise than from our voluntary adoption of the criminal law of England. The first effect of this new Statute, THE presenting all CAPITAL OFFENCES IN ONE VIEW, is one in which the general convenience, and the safety of individuals are consulted by an improved arrangement merely. But the second, and most important effect of the Statute, is to make a very extensive change in our criminal law, by re- ducing greatly the number of capital offences. And to this, I now proceed to call your attention. According to this Statute, the only offences to be hereafter punished with death in this Province, are the following : Compassing or imagining the death of the King. Levying War against the King. vi Adhering to the King's enemies. ;• .; ' ; v: Murder. . :•,::: .>-.,m ,-■ ; ^,4;.,,,,' Rescuing any person committed for Murder, or found guilty of Murder. Rape, Abusing a female child under the age of ten years, v Unnatural crimes. ,>^ ^ k Robbery. -^--^^ rt4tv>p'2i.:u ij-'i-^- Robbing the Mail of Letters. - - ^ Burglary. r ■»i^;^ 27 Arson. ir-^ S y, . * I Such offences against the Riot Act ns are capital in Eng- land. Burning or otherwise destro^ring His Majesty's Ships, Arsenals, Magazines, or Naval or Military Stores. Officers or Soldiers in the army, holding correspondence with rebels or enemies, without licence from the King or their Commanding Officer. These two last mentioned offences, being made capital expressly by British Acts of Parliament, which are binding here, and in all other parts of the King's dominions. , Accessories before the fact, that is, persons who command, counsel, abet or procure the commission of any of these crimes, are in conformity to the general principle of law, made liable also by this Statute to Capital Punishment. For all other offences, which before the passing of this Statute, were punishable with death, other punishments are ex- pressly provided ; so that it is in these specified cases, and in these only, that sentence of death can be passed. If there should be, however, any cases not specified in this Act, in which offences are made capital in this Colony, or in the Colonies or Dominions of the Crown generally, by the express words, or by the constitutional construction of any British Act of Parli- ament, which the Legislature has not adverted to, such British Statute must, of course, have its legal effect. « It may be interesting to you to learn the extent to which capital punishment has thus been abolished by the Legislature, and I will therefore enumerate the crimes fur which under our general adoption of the criminal law of England, the offender must, before this Statute have been sentenced to death, not stop- 28 ping to give the several ofTences their proper technical charac- ter in the terms used in the Statutes, which would be tedious, and not taking upon myself to assure you that there may not be some inconsiderable error or omission in the statement.— Many of these offences it is to be remembered are not now capi. tal in England, a more lenient punishment having been substi- tuted by recent Statutes ; but being capital in England in the year 1792, they remained so in this Province until the passing of the Act of last Session : • • Compassing the death of the King. ' " ."■ Levying war against the King in His realm. Adhering to the King's enemies. Slaying the Chancellor, Treasurer, or Justices of the Bench of Assize, being in the, discharge of their duties. Counterfeiting the King's Great or Privy Seal. Counterfeiting the King's money. Counterfeiting the money of other countries made current by the Crown. Clipping or washing any money of the realm, or any mo- ney of other countries made current by proclamation. Impairing, diminishing, scaling, or lightenmg the money of the realm for sake of gain. Impairing, diminishing, scaling, or lightening the money of other countries made current by proclamation. Any Smith, Engraver, Founder, he. not employed in His Majesty's Mint, making any die, puncheon, stamp, mould, &c. for making any gold or silver coin current in this Kingdom. Any Smith, Engraver, &c. not employed in the mint, &tc, making or mending any edging tool, or instrument for making money, or cutting engine for cutting round blanks. I rirftl 29 Buyinf< or selling, or having in possession, witiiout suffi- cient excuse, any puncheon, matrix, stampr die, or tool used in coining. Conveying out of His Majesty's mint any puncheon, die, stamp, or engine used for coining. Persons not employed in the mint, marking on the edges any of the current coin, or any diminished or counterfeit coin. Coloring, gilding, or casing over with gold or silver, or with any wash or materials producing the colour of gold or silver, any coin resembling the current coin of the realm. Gilding or coloring silver blanks of a fit size to be coined into pieces resembling the current gold coin. To wash, gild or colour a shilling, or six pence, or alter one 80 as to make it resemble a guinea or half guinea. Filing, washing, or altering half pennies, or farthings, so as to make them resemble shillings or six pences. Bringing into th<» realm counterfeit coin resembling foreign coins made current in the realm. Maintaining or defending the authority, or jurisdiction of the Bishop of Rome in this realm, by writing or preaching, for the second offence, (High Treason.) Putting in use any bull or instrument of absolution ob- tained from the See of Rome. Withdrawing a subject from his allegiance in order to make him obedient to the See cf Rome, or to any foreign power. Advisedly maintaining and affirming any thing contrary to the succession of the Crown established by the Act of Set- tlement. Soldiers corresponding with rebels, or enemies, without licence of the King, or o£ their General commanding. P 30 ..■, 't: ; i ' ■• ; ,\ ;.J"9 Uttering counterfeit money — for the third oflence — or committiug a second of the kind within ten days. Entering into the military service of the French King with- out licence. Persons having custody of the King's armour, ordnance, or munition of war, embezzling or purloining the same. Burning ships, or naval arsenals, or naval or military •tores. Sodomy. Demolishing any church or chapel. Murder. Horsestealing. - •:^ /; . Stealing sheep, or other cattle. Killing sheep or cattle with intent to steal the carcase. ,, Stealing cloth from tenter grounds. Stealing cotton, linnen, &£c. from bleaching grounds. Stealing goods to 40s. value in any ship, barge, or lighter, in a river or harbor. Stealing goods to the value of 40s. on any wharf or quay. Stealing a pump from a ship in distress. Stealing from a vessel wrecked or in distress. v i Stealing letters from any post bag, or post office. Robbing any person. Robbing a church or chapel. Robbing in a dwelling house, the owner, his wife, children or servants being put in fear. Robbing the dwelling house by breaking into the house, though no one be put in fear. Robbing in a booth, or tent, the owner, his wife, children or servants being within the same, though not put in fear. lor Breaking into a dwelling house by day or night, any per' son being Uierein, and put in fear. Stealing in a dwelling house, any person being therein, and put in fear. Stealing goods in any dwelling house or out-house belong- ing thereto, to the value of 53. in the day time, though no per- son be therein. < ' Stealing privately from the person. >' Stealing in any church or chapel. ' ' Stealing privately in a shop to thd value of five shillings. Burglary. ;; Arson. .-•.,'. ., •.,,;•' ■' '■•" Z Abduction of an heiress. , Forging any register of marriage. Destroying any register book of marriages. Publishing a forged marriage register as true. Clerks or carriers of the Post Office, embezzling or des- troying letters. Destroying trees, planted for shade or ornament. Returning from transportation. Robbing a rabbit warren, armed and disguised. Persons armed and disguised, entering any park or inclo- sure, and hunting, wounding or killing deer. Forcibly rescuing any person in custody for such offence. Persons armed and disguised, stealing fish out of a river or pond. Rescuing any person in custody for such offence. Falsely personating bail, or persons acknowledging fines, recoveries, deeds enrolled, statutes, recognizances, or judg- ments.. 32 f Taking reward on pretence of helping person! to recover stolen goods, (capital in those cases in which the previous lar- ceny would be capital.) Rescuing a person committed for murder, or convicted of murder, or going to, or during execution. Persons (three or more) armed, assisting in exporting goods prohibited to be exported. Or in landing or removing uncustomed goods. Or in rescuing them after seizure. , Or in re-landing goods exported upon debenture, v Or in rescuing the same after seizure. Or in rescuing a person apprehended for any offence made felony by a revenue act. Or preventing the apprehension of such person. Or being disguised while passing with smuggled goods. Or wounding any officer of customs going on board of any vessel, or when on board. Persons on shore or in a vessel or boat, maliciously shoot- ing at any vessel or boat belonging to His Majesty's navy, or in the service of the customs, within any harbour. Forging letters of attorney to transfer stock. Falsely personating the owner of stock. Forging letter of attorney or will of a seaman. Uttering such forged letter of attorney or will. Forging any deed, will, testament, bond, note or receipt. Uttering or publishing the same as true. Forging the acceptance of a bill of exchange. Forging any accountable receipt. Uttering either of these forged. Sending threatening letters demanding money. Rescuing any person lawfully in custody for such o/Teoce. 33 Sending letters tlireatning to kill, or to burn house, barn, he. though no money be demanded. Rescuing person in custody for such ofience. , Not dispersing in obedience to the Riot Act. Persons riotously assembled, pulling down any house, church or other buildings enumerated. Hindering or liurting the person making proclamation under the Riot Act. Maliciously destroying any lock, sluice or floodgate, on any navigable river erected by authority of Parliament. Rescuing any person in custody for that offence. Maliciously breaking down the bank of any river, whereby any lands shall be overflowed or damaged. Killing or maiming cattle. Rescuing persons committed for such cflence. Burning any stack of corn, straw, hay, or wood. Rescuing any person committed for such offence. Cutting hop binds in any hop plantation. . .^ Wilfully setting on fire any mine or pit of coal. ,; Breaking into any house, shop, cellar, &cc. with intent to cut, steal or destroy any linen, yarn, or cloth, or the tools or looms. Cutting or destroying linen goods while bleaching. Breaking into any house, he. to cut or destroy any woollen goods, or the looms, machines, &;c. Cutting or destroying any woollen goods in the loom. Destroying tools used in making such goods. The same two offences as to velvet, or silk or cotton. Maiming any person of malice aforethought, with intent to disfigure him. 34 it ' ' I for doing too much, nor stopping to inquire whetiier they might j havo done morr. I will, therefore, leave this subject, having thus simply placed before you the actual extent of the change ; first, how- ' ever, taking this occasion to remark, that while the law stood upon its former footing, as to the severity of punishment which it PERMITTED, it has been so carried into effect in this Province, that our criminal law, as it has been actually administered, will j be found not to have been undeserving of that chars cier for I lenity, which in this sense has been conceded to the criminal law of Eng.and, by the most enlightened men of all countries. I mean ihat the innocent have found here the same protection in the independence, patience and humanity Oi juries, and speaking of my predecessors, I trust I may add, without inde- licacy — in the impartiality of the Judge — while on the other hand, the guilty I ave found the same refuge in the merciful interposition of the Crown, and have not actually paid >he dreadful forfeit of life, except for crimes which it is still deemed necessary and justifiable to punish with death. You are well aware, that there have been in this Province for Horse stealing, and for other crimes, a great number of capital convictions; but, speaking from what I can recoliect, and from what I remember to have heard, I believe 1 may say, that the num.ber of cases in which «tntence of death has been actually executed, has not exceeded forty, in the forty years which have elapsed, since this Province had a sep&rate govern- ment. Of this number which I do not speak of as small, [and indeed I imagine it is something over stated,] eiglit were exe- cuted for High Treason, committed during the late war, and the others were, with but very few exceptions, persons convicted of Murder. I can call to mind indeed at present, no other T^ 37 exceptions than one, about thirty-five years sincei for stealing from the dwelling house — another executed in this town for forgery about i\vi same period, and another for an aggravated offence of Arson, committed in the District of London, nearly twenty years ago. Since that period, I think none have been executed, but those convicted of murder. ; This retrospeci ;nay appear to you neither unsatisfactory nor uninteresting at this particular time, when we are about to enter upon the administration of a system of criminal law, more lenient in the letter, ai.d therefore more congenial to the feel- ings of those whose duty it is to enforce it. , ; , The secondary punishments which the Court is now at liberty to inflict, will be rendered, I trust, fully effectual uC no distant day by the completion of that design for establishing a Penitentiary, which the Legislature has finally decided upon, and of which the execution has been entrusted to able hands. i If I had not already trespassed for an unusual time upon yo'ir attention, I should gladly take this opportunity of advert- ing to other acts of the Legislature which make convenient provisions for the bailing, commitment, removal, and trial of prisoners ; for apprehending and delivering up to justice fugi- tive offenders from other countries ; and for abolishing corr ip- tion of blood ;:pon attainder, except in ihe cnse of high treason. So far as any of the provisions contained in thes? Statutes are to be acted upon by Magistrates, and other officers concerned in administering justice, I trust no difficulty wil! be found in carrying them into effect. If any points in them serve to oc- casion doubts in practice, I shall take another occasion of ad- verting to them, for the information of such members of any future Grand Jury as may be in the commission of the peace. a' h ^ ; '■ ' The case in the calendar of prisoners committed for trial at this assizes, which 1 alluded to as requiring some particular explanations for your guidance, is the charge against Peter Soules for manslaughter. It is termed manslaughter in the calendar, because it is fur that offence only, and not for murder that the prisoner was committed by the Coroner. Having had judicially before me the inquisiton returned by the Jury, and the evidence on which it was founded, upon an application which was made to me to admit the prisoner to bail, 1 have acquired such a knowledge of the circumstances as enables me iO state to you that he is charged with causing the death of a woman, by negligently driving against her on the highway. A case of a similar description was tried in thi^ Di? ''<*; not very long ago, and as I desire not to say any thing to you at present in relation to the particular circumstances of this case, I will merely repeat to you the remarks which I thought it pro- per to make to the Grand Jury upon the occasion I refer to, and will stat j as I then stated, that we have all of us had too frequent opportunities of observing how heedlessly and wan- tonly life is endangered by the furious driving of thoughtless or intemperate persons upon the public highway ; but this is not the occasion to dwell upon this description of misconduct, because this particular case must first be dispassionately deter- mined, and if, upon the evidence before you, the death shall not seem to have proceeded from an abuse which is but too common in this country, the prisoner should of course not suffer from the indignation which the misconduct of others in such cases I as I have alluded to is calculated to excite. If the death of the unfortunate woman who suffered in this instance shall appear to you to have arisen from an accident, such as due caution would not have guarded against, and if the prisoner was doing nothing unlawful at the time, then he should be discharged from the I ? 39 indictment altogether. If, on the other hand, the death was occasioned by his act, and if that act proceeded from a want of ordinary care, but there was nothing in his conduct indicat- ing either malice towards the deceased or a cruel or wanton disregard of her life, then the offence would amount to man- slaughter. But if, unhappily, it should seem to you that the act was wilful ; (notwithstanding it could not, in the nature of things, have been provoked) that it arose from a heedless, reck- less disposition, under the impulse of which the prisoner disre- garded the injury likely to be inflicted by his rash and improper conduct ; if these should appear to be the circumstances of this case, then it would be proper that you should place the prisoner on his trial for murder. By the Court and Petit Jury, the cir- cumstances would be more minutely and scrupulously weighed upon the trial : and it is proper that you should present the charge in that shape, if you really think it doubtful, upon the evidence, whether the prisoner's conduct does not deserve such a construe '^n. The safety of human life forbids us to look otherwise than with the most rigid scrutiny into every act that has occasioned the violent death of a fellow being ; — when that scrutiny has been completed, if a doubt remains, it is always thrown into the scale of mercy. 1 will r // detain you no longer, gentlemen, except to re- quest that you will make the usual examination into the state of the gaol, and the manner in which the prisoners, civil and criminal are kept. If your inquiries should enable you to suggest any thing which can properly be done to diminish the evils of imprisonment, I shall be happy to do whatever may be in my power towards its accomplishment.