IMAGE EVALUATION TEST TARGET (MT-3) // <.^.**!^ V . CO o w r ?^ I— » S3 H a w T) 3- pi o 2: s § td w w ^ H 3 8 l*:?:,::rrTM? ,t i ° g- % l,V ' V • 1.^' ^AV v \/ ^0\<^^^ ¥/3 •L To His Royal Highness the Prtnce Regent in Council. The Memohul of THOMAS EARL OF SELKIRK, SHEWETH, THAT, in the month of September, 1818, a bill of indict- ment was {Hreferred against your Memorialist, at Sandwich, in the Western district of Upper Canada, for a conspiracy to destroy the trade of certain fur- traders calling themselves the North-West Company of Montreal. That, when the said bill was before the Grand Jury, the Attorney-General of the Province claimed a right to attend them in their private room, and to examine the witnesses for the prosesution. That your Memorialist appealed to the Court against this proceeding, which appeared to him highly irregular — (and the more so as he knew the Attorney- General held, shortly before, and most probably at the very moment, a general professional retainer for the said fur-traders) but the Chief-Justice declared from the Bench, that the Attornoy-Gcncral, as a law officer of the Crown, had a right to examine the witnesses before the Grand Jury, and that such was the practice in England. That in consequence of this declaration, — the accuracy of which your Me- morialist took the liberty of contradicting in Court, — -the Grand Jury was induced to permit the Attorney-General to attend them three days successively, for the purpose of marshalling and examining his witnesses, — all of whom were partners, clerks, or hired servants of the said fur-traders, or otherwise paid by, or dependent upon them. That, after the Attorney-General had finished this examination, the Grand Jury continued two days more in deliberating upon the said bill, during which time they called in other evidence, and also again ques- tioned several of the same witnesses who had already appeared before them. That on the morning of the sixth day, when it was generally believed (from the purport of several questions publicly put by the foreman to the Chief-Justice, and from other circumstances) that the bill against your Memorialist would be imme- diately thrown out, the Chief-Justice, — without calling before him the Grand Juiy (who were sitting in the adjoining room) or inquiring of them if they had any presentment to make, and without permitting them to fulfil the duties required of them, or regularly discliaipng them from their legal functions, unexpectedly and suddenly broke up the Court, thereby improperly interrupting, and putting a total stop to, tlie proceedings of the Grand Juiy. s Tliat upon the Cliief-Justiro tlius breaking up tlic Court, the Attomey- (Jerieriil immediately went into llic room wliero tlie (irancl.Uirv were sitting, and carried ofi' the bill ol' indietnient upon which tliey were then legally summoned and sworn to deliberate. Tliat your 3Ieniorialist humbly eonreives the Chief-.Justiec of Upper Canada, in thus abruptly breaking u|) tlie Court, acted in a manner highly unbecoming as a .Tudge, and most improp<'rly and unjustly towards your iMemorialist ; — and particularly so as be was not called away by any other judicial engagement, having himself appointed the 7\ssizes, then held at Sandwich, to be the last in rotation upon that Circuit, expressly and avowedly in order that no other business might interfere with, or interrupt, the necessary proceedings to be then held At that place. That, after this failure on the part of the Attorney-Cieneral, and the Nortli- West Company, to procure a true bill for the alleged conspiracy, your Memo- rialist did not suppose that any prosecution of a similar description would lie again contemplated against him ; and he therefore permitted his witnesses (who, in consecjuence of numerous vexatious proceedings instituted by the said Com- l)any, bad been long detained by him in Canada at a heavy expense) to go back into the interior, or otherwise to disperse, upon tlieir own concerns, — and that shortly afterwards, your Memorialist himself returned to England. I'liat soon after his return, however, he received information that in order to give another chance, and to afford a better opportunity, of having an indictment found against your Memorialist in some other district, a bill was brought into the Legislature of Upper Canada which it was expected would produce that result. It was introduced into the House of Assembly at the very commence- ment of the Session (held in October last) and passed through that Mouse with uiiusual rapidity, w ithout waiting for the arrival of the Members who represented tlie distant districts of the Province (peculiarly interested in the question), and ^^ iio, as it was generally understood, would have opposed the bill. That the bill, having passed the House of Assembly, was immediately sent uji to the Ijjgislative Council, where, in order to prevent it having a retrospective (•fleet (which it bore as originally framed) an amendment, — leaving out the word ■^ heretofore" before the word " committed" — was moved and carried, notwith- standing the opposition of the Chief-Justice, — under whose auspices the bill had I>een originally introduced.— The bill so amended was then taken back to the 1 ionse of Assembly and passed; — after which it received the assent of the Pro- vi;;cial (lovemment. That by the said Act (a Copy of which accompanies this Memorial) a most i;nnsual and dangerous power is given to the Law Officers of the Crown in 1 'fiper Canada, of renio\ ing, at pleasure, the trial of alleged offences to a distance of many hundred niile^ from tlie district Courts before which they were regu- larly nnd constitutionnlly cognizable, and of dnijifgiii^ acciisfd itoisons to tlic most remote parts of tlie Province, where juries, not of their own districts, nia\ Im," packed for the purpose of convicting them, and where tiie prisoners, owing t.i the great distance, and expense of conveyance, may be unable to bring witii tlicin any witnesses to prove their innocence, or obtain counsel to assist tlitia in their defence. That in tlie said Act no reason is given for the alteration thus made in tin- established law and judicature of Upper Canada, unless, indeed, the vague words appearing in the jjreamble,-- namely, " that it might beinvuni'enicnt"—(\.oU\ offences in the Courts where they onglit to be tried) — can be deemed a reason lor such an extraordinary and unconstitutional innovation. Your Memorialist submits that not only is this vVct in itself highly unjust, and contrary to every princijjle of the law of England, — which is the recognized law of Upi)er Canada, — l)ut that, in spite of the amendment made upon it for the purpose of preventing it having the efiect of an ex poxt J'acto enactment, thi' Chief-Justice of the Province, and the Attorney-General, have thought fit to interpret and act uj)on it as having a retrospective effect : that as they could not succeed in their endeavours to oljtain, from the Grand .Tury in the Western District, a true bill against your Memorialist for the alleged conspiracy, another bill, immediately after the passing of this new iVct, was preferred against him on the same charge, and supported by the very same ' . itnesses, before a Grand Jury of the Home District, and for offences alleged to have been conmiitted no less than two years before the passing of the said Act. That the Grand Jury at York, before whom this second bill of indictment was preferred, were prevailed upon, at the instance and uj)on the opinion of the said Attorney-General, to admit into their private room the principal agent and partner of the North-West Company, for the purpose of assisting as interpreter, and examiner of the witnesses, most of whom spoke a language; not understood by the jurors, in consequence of which improper and irregular proceedings, the bill has been found against your jNIemorialist, and nineteen other j)ersons, most of whose names have been inserted in the indictment evidently fur no other pm-pose than to prevent tliem being called as witnesses in your Memorialist's defence. That your Memorialist furtlier submits that Fort William, a trading post occupied by the said North- West Company, and the place where tlie alleged ofTenees charged against him are stated to have been committed, is not situated within the jurisdiction of the ("ourts of Upper Canada, as settled by the i\ct of Parliament (14 George III. c. 83,) which defines the boundary of that Province, and therefore that these charges cannot be legally brought to trial in any Court of Upper Canada. 'I'liat tlir riiirr-Jiistirc of lT|>j,or Canada, in dofinnco nf the Art of Parlianiorif vhirh declares the Wostcni hoimdary of Canada, to In* a line drawn Norfli- vard from the point of junction of tlie Rivers Ohio and lAIississippi, and in opposition to tlic imaniious decision of the Conrt at (iuelwc-, asserts that the ^^'este^n District of Upper Canada extends Westward to an indefuiite distance. Tliat in conseipience of tiiis extraordinaiy (h)ctrine your IMeniorialist is appre- hensive tiiat, under the provisions of tiiis new Provincial Act, the Chief-Justice y\i\l not hesitate to issue bench warrants for the purpose "of arresting several persons now resident at the Red River Settlement, and that, if such warrants he subniitted to, or enforceii, he will brin{]f away the accused i)arties to a distance of two thousand miles, without their having any o[)portunity of "carrying witnesses along M'ith them, or the means of obtaining an impartial jury, or a fair trial, "i'our Memorialist ought also to observe, that as the settlers at Red River have obtained the opinions of several of the most eminent Counsel in England that the Red River cannot be consideied as situated in Canada, it is not unlikely that warrants issued (under the new Act) for tiie apprehension of any of the settlers at that place, will be forcibly, and, as your Memorialist conceives, lawfully, resisted. That your Memorialist further submits that as the provincial cnsictment above mentioned, is of an unusual and extraordinary natuix", your Memorialist conceives it ought to have contained a clause suspending its operation till the pleasure of Your Royal Highness should '.ave been known ;— that in consequence of the omission of such a clause, and the opportunity thereby allowed for the bill to be immediately acted upon, your Memorialist has sustained grievous prejudice: — that although the bill in (]uestion was passed in tiie niontli of November last, it ai)pcars that no copy thereof (as directed by the Act of 31 George III. c. 31,) has yet been transmitted to this country, by which omission a farther opportunity has been afforded of carrying the same into effect, before Your Royal Highness could have an opportunity of exercising Your constitutional Prerogative therein, and of determining whether the Act ought or ought not to be allowed. Your Memorialist therelbre humbly prays that Your Royal Highness in Council will take the said Provincial Act into con- sideration, and that notice may be given to your iMemorialist, in order that he be heard by his Counsel thereon, for the purpose of having the said Act disallowed. SKLKIRK. I.u.l.m,-2.inl Aui:':^!, 1*^10. (UPPER CANADA.) SItt iHCt '0 authnrisr the inquiry and trial of crimes and olfenccii committed within this Province without the limits of any described township or county to he had in any district thereof, tOfitttaf by un Act pnised in tliu tliirty-eiglitli yenr of His Mnje»ly'.s ifii^ii, entiileci " An Act for llic better Division of tbis Province " Inrgn tracts of romitry .ire c-(>in|)rt'lienile(l in the several di^ttrictit of tliis Province witicii are not witbiii tiic limit!* of any townsbip or county tlicrein : And whereni, crimes nnil offences bave been com- initted and may liere;ilU'r be conimitted in siicii tracts of country, wbicb it niij;bt be inconvenient to try in tbe |).irlicidar district wborcin tlie same may bave been committed — Me it therefore enacted by tiie Kind's moat I'xccllcnt Majesty, by, and witli the ndvicc and consent of tbe Legislative Council and Assembly of tbe Province of Upper Caniida, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of Great Uritiiin, entitled " An Act to repeal certain parts of "An .■'.'. r passed in the- lourteeiith year of [lis Majesty's reign, entitled An Act for " makin;r more effectual Provi>ic)u for tbe Government of Quebec, in North America, "and to make further J'rovision fur the (iovernment of the said I'roviiice, and by the " authority of tbe same, " That all crimes and offences committed in any of the said tracts of country or parts of this I'rovince, not being witliin the limits of any described county or township, may be inquired of and tried within any district of this Province, and may and shall be laid and charged to bave been coiiimitted within tbe jurisdiction of tbe Court which shall try the same, and such Court may and shnll proceed thcreoii to trial, judgment, und execution, ur uther punishment for such crime or olVencc, in the same manner us if such crime or offence had been really committed within the district where sucli trial may be bad, any law or custom to the contrary notwithstanding. 3^C0t)itlCll dllOapjtf^ that wheti and so soon as any new county or counties, township or townships, shall be laid out, described, and established in any of the tracts of 'I'erritory aforesaid, and shall be so declared by Law or by Proclamation under the Hand and Seal of the Governor, or Lieutenant-Governor, or Person administering the fioverninent of this Province for the time being, by and with tbe advice and consent of Mis Majesty's Executive Council, all crimes and offences committed within the limits of any such new county or counties, township or townships, shall be inquired of, and tried in the district or districts wherein such new county or counties, township or townships «hall be respectively comprehended, in like manner as such crimes or offences would have been inquired of and tried if this present Act had not been made or passed. Commons House of Jsxrmbi'ty, Qht of October, 1818, (Signed) ALLAN MACLEAN, Speaker. I'dsstdtke LcghliUire Council, 23rd of October, 1818. (i^igned) WILLIAM DUMMER POWELL, Speaker. I (;iscnt to ifiis Hill ill ]iis Mnjcstj/'s Xante, (Signed) P. MAITLAND, Lieulenani-Govtrnor.