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Las diagmmmes suivants illustrent la mAthode. 1 2 3 1 2 3 4 5 6 w .»■■ •>'\'. 3 ^,e da, V0nive«it6c ■«H!? \ CORRJ^OM)EJVCE In tftc YcLf'lSnriSlS, y|ifl*f1n?ii 1 1 II JSarl Bathurst^ and J, Halkett, Esq. on the Suljfect of Lord Selkirk's Settlement at theJR.ED River, in North America, , - ^r i^' #' -^^^ ..^ > *):#> , J^ M.:, '^j ' in rafflSte*.' '■ . f-^J -i'i'?^ •^v >*'.;.. 'M:- ■*< ' .' *., t«'"'' ,4:,-%: , ..■•'^.•; ^'M •' ^'^«!'&. -^^^yip'- ' ■' •^•-i-'H^' > > k >*.-..' "^^■■•••XV"'^ - v^?., .V:.,;v.„Be-.*;\ h. • ^.. :..;.., :?; ^ ,>^■; v ''^1 ■t Hupert Street, Haynurrlcet, Lond^;-: .l.i It I . ■/ '1 rr •.' CORRESPONDENCE. Seymour Place, July 10, 1817. MY LftRpj;' :^ ' In transmitting to your Lordship, as head of the Colonial Department, the accompanying Statement, relative to the Settlement which the Earl of Selkirk has attempted to establish on the Red River, in North America, I hope I shall not be considered guilty of any improper intrusion upon your Lordship's time and avocations, if I request that it may obtain an attentive perusal. The cir- cumstances to which it refers have been stated by Lord Selkirk's enemies in such a manner, as to make it no more than an act of biire justice that a willing ear should be lent to what his friends in England have, in his absence, to urge. in his defence. His opponents are but too well aware of the importance of concealing the truth with respect to the conspiracy entered into against the Red River Settlement, not to make it a material object for them to resort to any means for the purpose of misleading Government, and deluding the public, — and in thb respect it is much to be lamented that they appear hitherto to have been not unsuccessful. ^ # It may, however, be not yet too late to do Lord Selkirk justice ; and if the documents contained in . the Statement, herewith transmitted, be perufed with attention, I think no doubt will remain that the as- sertions made by his opponents relative to the Settle- ment in question, are unworthy of belief. In the Observations subjoined to the Statement, your Lordship will perceive the reason which Lord Selkirk has given for not submitting to the first warrant which the North-West Company, after various attempts, procured for the purpose of appre- hending him at Fort William. t' With regard to the second one, obtained for a similar purpose, I have, since the accompanying Statement was sent to press, been put in possession of a copy of the Information upon which such warrant was founded. It is sworn to by two clerks of the North-West Company — Vandersluys and M'Tavish — who were at Fort William at the time; and it will scarcely be believed that their charge against Lord Selkirk, upon which the warrant was issued, is, that he ** feloniously stole, took, and carried away'' eighly-three fusils belonging to the North-West Company, — which fusils, there is unquestionable evidence to shew, were taken out of the magazine, and loaded and concealed under the directions of the Company's partners, for no purpose whatever but the projected destruction of Lord Selkirk and the whole of his party, — and the preventing them from making this use of these arms, is the act of felony, — and the only one, — upon which they obtained their warrant to apprehend him. /■ V h n' /^ i h f liil enclose a copy of the Information alluded to* ; and have only to add^ that the friends of Lord Sel- kirk have always heen, and now are^ readj^ when called upon, to answer every inquiry, and to afford material information upon the suhject of those pro- ceedings in North America, which have heen so much misrepresented, and with respect to which he has been so unjustly aspersed. The more rigid that inquiry, the more satisfactory it will prove to those who feel themselves called upon, in his absence, to do every thing in their power fairly, but firmly, to defend him. I have the honour to be. My Lord, Your Lordship's obedient And humble Servant, t • •J* "Sffif'"-'v'ft ;•)•■* -,$H«'0 a. vi«' Earl Bathurst, fyc. Sfc. Sfc. .'- • ' I 5 / -• ? J. HALKETT. ]i SIR. Downing Street, July I7th, 1817. I am directed by Lord Bathurst to acknow- ledge the receipt of your Letter of the lOtb instant^ inclosing a Statement relative to the Settlement which the Earl of Selkirk has attempted to establish upon the Red River in North America ; and to assure h t ? I ,;* * See Appendix, [A.] 't/ i?f -f - «,• .*»: .1 Fi 1 . - * J, Halkett, Esq, I have the honour to be« ' Sir, Your roost obedient. Humble Servant. '*"' . , HENRY GOULBURN. •' •■ • 't— * i •* » ; '>{! • '.••■ > I Seymour Place, July I8th, 1817. MY LOUD, ' • Since I had the honour of transmitting to your Lordship, on the 10th instant, a copy^of a Statement respecting the Earl of Selkirk's Settlement upon the Red River, and his proceedings in North America, I have been furnished with one of the printed Proclamations which was issued at Quebec by Sir J. Sherbrooke, on the 3rd of May last, in obe- dience to the orders of His Majesty's Government. As the Proclamation in question has evidently ori. ginated from assertions made to Government by Lord Selkirk's opponents ; and as it obviously points, with no slight degree of animadversion, to acts sup- posed to have been committed by him, I beg leave, in his absence, to submit to your Lordship such cir- cumstances as ought, I conceive, to satisfy His Ma- jesty's Government, that the reprehension cast upon Lord Selkirk by that Proclamation, was premature, and unjust. V i "jr -""*, >! ^ m 'i , r: \ V t€ t€ «t !. I advert particularly to that part of the Proclama^ tion which declares, that, " in order to prevent the " further employment of an unauthorised military " force, all persona who have been heretofore en- " fiT^gcd in His Majesty's service, as officers or sol- " diers, and as such have enlisted and engaged in " the service of the Hudson's Bay Company, or the *' North- West Company, or either of them, or any " of their servants, agents, or adherents, must leave " the service in which they may be so engaged, " within twenty-four hours after their knowledge of " the Proclamation, under penalty of incurring the roost severe displeasure of His Majesty, and forfeit- ing every privilege to which their former employ- ment in His Majesty's service would otherwise " have entitled them." ^,. - , Your Lordship will please to observe, that, as no charge has ever been made from any quarter against the North-West Company, with regard to their employment of an unauthorised military force, or that any officers or soldiers heretofore engaged in His Majesty's service, had been enlisted or engaged io serve them, their servants, agents, or adherents ;— • but, on the other hand, as accusations to that effect have been repeatedly preferred against Lord Selkirk by his opponents in that Company, the animadver- sions contained in the Proclamation, in that respect, can only be considered as applicable to him. Lord Selkirk, therefore, at present stands seriously, though indirectly, charged, upon the face of that Proclama- tion, with having employed an unauthorised military force, and having enlisted, or engaged, for improper I . w\ piirposfi, loUliers who had been formerly rniployed in Hii Majeity's service. «**»*» .«»»U'iOi » ihitiw noir Before His Majesty's Government ought thus to have conveyed so heavy a chai^, they were bound,' by every principle of justice, to have inquired into the truth of the accusation. Had this step beeri taken, it would have clearly appeared, that therie was no employment, on the part of Lord Selkirk, or, indeed, of any person whatever, of an unauthorised military force, nor any enlisting of soldiers, or en- gaging of officers in any service or employment,' from which they were, by law, precluded. When several of the officers, and about a hundred of the privates, of the reduced regiments of Do Meu- ron and Watteville, entered into agreements, last year, with Lord Selkirk, to settle upon his lands at the Red River, there existed no legal impediment against such measure. They were as fully entitled to establish themselves at that Settlement, as any of the Highland or other emigrants who had repaired thither from the mother country; and to protect whom, at the proposed Settlement, His Majesty's Government had itself directed arms and ammunition to be issued in the year 1813. The Proclamation, in commanding these discharged officers and soldiers to leave, within twenty-four hours notice, the em- ployment for which they had contracted, and to break the agreements which they had entered into, was, I humbly conceive, assuming a power with which Government itself could not be legally vested : — and nothing can evince more strongly the truth of what is thus asserted, than a circumstance which /' has recently occurred at Montreal, under the cognt- xance of the very commiiiioiieri named in the Pro- clamation, as having been appointed with full powers to investigate the late occurrences tliat have taken place in the interior of North America. An additional number (about fifty) of the dis-« charged soldiers of the l)e Meuron regiment, who had remained in Canada, recently applied to Lord Selkirk's agents at Montreal, for permission to join those who had accompanied him last year into the interior. After the strictest inquiry into the con- duct and character of these men, they were allowed to enter into the same agreements with the others. When upon the eveot Uieir departure, the commis- sioners called them before them, in consequence of some depositions upon oath produced by the North-* West Company, that those discharged soldiers were engaged for hostile purposes and military service. The Proclamation was read to them, — their contracts were inspected,—- parties were examined upon oath, under the authority of the commission, — and, after a long investigation, and every possible opposition on the part of the North -West Company, every one of these men was permitted to proceed on his destination. This additional party of settlershasj accordingly, set out to join Lord Selkirk in the interior^ and has done so, in the presence of the commissioners, with the ProcluniHtion in their hand, although they certainly were, in every respect, as unauthorised a military force, and as much composed of soldiers heretofore employed in His Majesty's service, as those who had accompanied Lord Selkirk ^eap-:,^ N... • ».tf»VWMOWMiH»i ■^H|f *!9ai the year before, — a measure for which he is so hardly, and so unjustly dealt vi^itb, in the Proclamation whieb GoYernment has issued. »;>•' This circumstance I take the liberty to mention, as being one of the numerous cases, in which, were His Majesty's Government strictly to investigate, it would be found, that the accusations and assertions submitted to them on the part of Lord Selkirk's enemies, are totally destitute of truth. , I have the honour to be, ' My Lord, /> Your Lordship's obedient i : and humble Servant, ;,A .'tin i i) I •fi-j i ■-■ , '-ri ■ ,;■■ ♦•.! J.HALKETT. Earl Bathurst, •_?.'>,'•' •;' ' 'Dsrj.^rs:, ^u ;.'ff»( Sfc. 8(c. Ifc. '•''."■ ' " ' ; -^M ■' . I , • , ; l{<: Ji - t ; MY LORD, Seymour Place, 3lst July, 1817. In the letter which I had the honour of ad. dressing to your Lordship on the lOth instant, upon the subject of Lord Selkirk's proceedings in North America, I transmitted the copy of a deposition upon oath taken of two clerks of the North- West Com- pany, Vandersluys, and M'Tuvish, for the purpose of grounding upon it a warrant to apprehend Lord Selkirk on a charge of felony. I mentioned that the only circumstance, however, which these convenient deponents had been able to fix upon, or could muster courage enough to swear to, in order to obtain such - ■I TT .^I— WW " 'f "" — ■ "^^ warranty was^ that Lord Selkirk^ and several gentle^ men \?ho were vtiih him, had feloniously stolen^ taken^ and carried away, eighty-three fusils, belong- ing to the North- West Company. These fusils had been seized, and secured, in consequence of a search- warrant issued by Lord Selkirk, as a magistrate, in- formation having been given to him, early in the morning of the 14th of August, that notwithstand- ing the North-West Company's partners (who had been apprehended at Fort William) had pledged their word of honour that no further obstruction to the arrests should take place, or any other act of hostility be contemplated on their part, the fusils in question had been secretly taken in the night time, from the magazine in the fort, and put in a place of concealment for some treacherous purpose. In consequence of the search-warrant so issued, these arms were discovered fresh loaded and primed, and secreted under some hay in a bui^ ling adjoining the fort. Of this fact there does not exist the slightest shadow of doubt, and it was accordingly communicated at the time, together with the details of the other proceedings at Fort William, in a let- ter from Lord Selkirk, dated the 31st of August last, to Mr. Gore, the Lieutenant-Governor of Upper Canada, — a copy of which letter I conclude was officially transmitted to your Lordship by that gentleman. In the printed Statement which I sent to your Lordship with my letter of the 10th instant, the circumstance above noticed is adverted to. It was not only asserted by Lord Selkirk in his official com- k 10 munication to Governor Gorc^ but it is also detailed in the several accounts drawn up and signed by Mr. Fauche^ Mr. M'Nab, and Alexander Fraser, all of whom were upon the spot at the time, and whose separate narratives form part of the documents in^ serted io the Appendix to the Statement which I had the honour of transmitting to you. Fraser was a hired servant of the North- West Company, and had resided several years at Fort William. He positively swears that he saw the partners busily engaged in examining, and burning a large quantity of their papers, on the night of the 13th of August ; and that, during the same night, the fusils were removed from the niagazines in which they were commonly deposited, and in which it was not usual to keep arms loaded ; but that ^* the guns removed from '* theuce were found loaded, primed, and ready for ** use, concealed in a hay.loft at Fort William, the *' morning following the arrest of the partners;" and *' that barrels of gunpowder were also removed " and hidden, during the same night." , i ;, If the fact be once admitted,— and it cannot, with any semblance of truth, be denied, — that the fusils were thus taken out of the magazine in the night- time, after the partners, who were arrested, had been permitted to return on their parole to their apartments in the fort, — there will scarcely exist a doubt in the mind of auj one, as to the persons by whose directions thes ; arms were surreptitiously pur- loined, loaded, and concealed ; or the purpose for which they were so prepared and sectcted. Indeed, it is highly probable, that the very clerks, Vander- ««i6**a*-'-'»*-^V-' ..At^o— M>-^ .,jm, «* m*m It slujsand M'Tavish, (to whom the Company's part- ners, after their arrest, gave the charge of managing their affairs at Fort William,) were themselves em- ployed, during the night, in clandestinely preparing and secreting those fusils, for the purpose of destroy^ ing Lord Selkirk and his party ; and which they have since solemnly sworn were ** feloniously stolen and " taken awaj," because Lord Selkirk and his friends, bj seizing and securing them, thought fit to prevent them from being used in the projected destruction of himself and his party. My principal reason for again intruding upon your Lordship with this part of the subject of Lord Sel- kirk's proceedings, is to mention, that, by another deposition, recently received from Canada, the facts above stated are most strongly corroborated, as well as the use pointed out, which was intended to have been made of these very arms which were so fortu- nately discovered and secured at Fort William, and for the seizure of which a warrant fur felony has been obtained. Louis Blondeau, one of the engages, or hired servants, of the North- West Company, has recently made a detailed affidavit before a magistrate at Mon- treal, in which he has stated many of the circum- stances, and plans of aggression, instigated by the North-West Company against Lord Selkirk and the Red River Settlement. He concludes his deposition as follows : — . ' r " Que le ileposant est parti de Fort Ciimbcrland, dans li^ " mois dc Jiiiii, ets'tst rendu ji Fort William vers le l5 \W, i?«M» 12 " ile Juillet, 06 il n mi6 jusqu* a rarrestation des associ^s <* (le Nord-Ouest par Loi-d Selkirk :— Que le Lord Selkirk '* n'a pas pris possession do Fort William aussitdt que " iWestation des associ^s a eu lieUj mais que les asaoci^s " avoient et6 permis d'occuper leurs cljambres dansle fort *' pendant la nuit suivante. Que le dit deposant ^toit log6 ** en tente au dehors du fort mais pr^s de celui-ci. £t que " pendant la nuit sa femme qui Taroit rejoint, a rereiil^ *' le deposant, en disant qu'elle pensoit que quelqu'un " commettoit des vols, parce qu*elle entendoit da bruit. " Que le deposant s'est alors l^v^, et sortit, pour s^avoir " ce qui en etoit, qu*il se rangeoit pr^s des pieux du for^ *' pour ne pasdtre vu, et quMl entendoit une personne qui " marchoit alors pres de lui, dire h un autre, " S^ais-tu bien " que nous faisons un mauvais coup, de charrier des armes '* de m6me, parce que si B'^toits9u, on nous feroit prendre." " Son compagnon alors lui disoit, ' Comment yeux-tu que " * cela soit decouvert ? Nous allons cacher les armes dans " * le grenier a foin, personne ne pourra les trouver la.' — " Ensuite celui qui avoit parI61e premier, rcpliquoit ' Les " * bourgeois qui nous font cacher ces armes, ont encore '''quelque mauvais dessein a faire, et s'est nous qui en " ' patirons.'" " Que le dit depos ant a ecrit aussitOt de bon matin le len- " demain, un billet au Lord Selkirk, Tinformant que Ton " avoit cache des armes dans le grenier h foin. Que le f deposant d entendu dire k des engages du Nord-Ouesf, " quelque temps apr^s, que les armes avoient 6tt caches " afin de fournir aux gens du Nord-Ouest les moyens de de- " truire les gens qui gardoient les prisoniers dans le fort> " et qu*ensuite, corame le Lord Selkirk ^toit camp6 avec " ses gens dans une prairie, les gens du fort pouvoient *' aisement les attaquer, et les massacrer. "Que le Lord Selkirk en relevant le billet du deposant, " est venu toute de suite, lui-rafime parler au deposant, et " le prenoit par la main, en la serran<, et disant, qu'il (le -_dim0mm mm a tt is ' 'deposant) lui avoit rendu service, et Tavoit exeitapte " d'lin grand danger. Qu'alors le Lord Selkirk a Uonn6 an warrant pour faire la recherche de ces armes, et que quaranle fusils, charges k balle, et amorces, prdt k tirer, ''avec, en outre, qualre caisses d'autres fusils ont 6(6 trouv^s " dans le greater que le deposant avoit indique. Qu'en ** outre, des barils de poudre, une quantity de balies, et un ** grand nombre de fusils ont 4ti trouves caches dans '' d*aatres endroits. Qu*ensuite le Lord Selkirk a pris pos- " session de Fort William. £t le deposant dit de plus, " qu*ii crolt fermement d'apr^s le caract^re emporte et saii- " guinaiie des associ^S) et de leurs gens au Fort William, " et les circoustances venues k sa connoissance, que ni la vie " da Lord Selkirk, ni celle de ses horomes, n*auroient e(4 ** en surete s'ils avoient reste dans la prairie oi^ ils avoient ** premier^ment camp6, et que le dit Lord Selkirk et ces " gens auroient ii€ massacre pareillement aux gens de la ** Riviere Rouge, si le dit Lord Selkirk n^avoit pas imme- ** diatement pris possession du Fort William." ^ ^ - (Sign6) " LOUIS BLONDEAU." ** Affirm^ devant moi, 'Me G"* jour de Mars 1817. (Sign6) « J. M. MONDELET. J. P." It certainly appears to have been the height of imprudence in Lord Selkirk to have suffered the North- West Company's partners, whom he arrested at Fort William, to return to their apartments in the fort, without placing them under some more secure guard than their parole of honour. He oughts by that time, to have been better acquainted with the general character of the partnership ; and not to have placed, by his imprudent indulgence, the lives of his whole party at so great a risk. It it evident D i 14 that they made a Tery narrow escape; and, bad they beeo surprised and assassinated, the North"* West Company would, of course, have done exactly as they did with respect to the massacre of Governor Semple and his people at Red River ; and have imme* diately and boldly asserted to His Majesty's Govern- ment, that the event was entirely owing to the " mad and infatuated violence" of the sufferers ; or, which was equally false, to '* Indian hostility and " resentment." I trust, my Lord, that, on this part of the sub- ject, it is not necessary for me to urge more, in defence of Lord Selkirk and the gentlemen who accompanied him, than merely to submit the cir-, cumstances above stated. No person of candid mind will prono^nce, that, because they seized and se* cured those weapons, which were evidently intended for their destruction, there existed thereby any ground for a criminal warrant to arrest them ; and if, under the circumstances in which they were placed* they are to be considered free from blame in not surren- dering to the second warrant,— they will, no doubt, be equally exculpated for not having yielded submis^ sion to the formeir, but similar, attempt to appre-* bend them. In the former attempt, several of the Judges iq ILJpper Canada had, in the first instance, been applied to by the North- West Company, but refused to grant a warrant, as they saw no ground for a charge of felony. But there being no ground ia law for gfantiRg such warrant, was not deemed by the Company a sufficient reason for desisting from 15 1 iheir endeavours to obtain it. They accordingly pro- cured^ at Drummond^s Island, on Lake Huron*, a warrant from a magistrate, '' uhoie notorious habits " of intemperance/' (as stated bj Lord Selkirk in his official letter to Governor Gore, of the 12th Novem- ber last, a copy of which I presume, Mr. Gore transmitted to your Lordship,) -" whose notorious " habits of intemperance rendered it in the highest " d^ree probable that his signature had been " obtained surreptitiously." To this ivjtrrant, which Lord Selkirk also asserted to have been not only in several respects irregular, but " founded on the " recital of an affidavit full of the grossest perjuries," neither bis Lordship, nor the gneflemen whose ntimes were included in the charge, chose to submit. Afttir the knowledge they had recently acquired of the sanguinary intentions of the North- West Company, it could scarcely be expected that, in obedience to a document so produced, they would place themselves in the power, and at the mercy, of a partner, clerk, and constable of the Company, and entrust them- tdves to them, and their hired attendants, during a journey and voyage of many hundred miles. At the very moment that the warrant was presented at Fort * This IB a mistake. The magistrate to whom the North- West Company apphed after the refusal of the judges, was a Mr. Baby, of Sandwich, who, upon the affidavit of Vandersluys, and M'Tavish, issued the warrant for Felony. The warrant which the North- West Company obtained from Dr. Mitchell, of Dfiimmond's Island, was on a charge of Riot, fkc. i\ ^^ii^ti.-f-. 16 William, one of the Company's clerks and consta- bles was in custody at that place, by Lord Selkirk's directions as a magistrate, for a murder recently committed by him upon Mr. Owen Keveney, whom that clerk had, in his capacity of constable, appre- hended by a warrant issued by one partner, and murdered by the orders issued by another ; and there is no reason to believe that the partnership would have dealt more gently with Lord Selkirk, had be become their prisoner, than they bad done with re- spect to Mr. Keveney. ., i Your Lordship^ in considering the circumstances above stated, will, I trust, be of opinion that Lord Selkirk, and the other gentlemen whose names were included in these warrants, cannot be justly blamed for having refused to obey them. I have the honour to be. My Lord, Your Lordship's obedient and humble Servant, J. HALKETT. Earl Bathurst, frc. Sfc. ifc. August 2Srd, 1817. MY LORD, However unwilling I am to continue giving trouble to your Lordship on the subject of the Earl of Selkirk's proceedings in North America, yet as \j f ^ 17 he cannot, in his present situation in the interior of the country, be aware of, or able to contradict, the numerous misrepresentations which his enemies in England have not scrupled to submit to His Ma- jest^r's Government, I beg to request your Lordship's attention to several depositions which have been lately received from Montreal, — copies of which I have the honour of herewith transmitting for your Lordship's consideration. Perhaps it may be thought superfluous in me to lay these documents before your Lordship, as they only form an addition to the mass of evidence already produced, and which may perhaps have been deemed fully sufficient to satisfy Government, that the suc- cessive and disgraceful aggressions against the Red River Settlement were exclusively instigated by the North-West Company. But, I trust, that your Lordship will at the same time admit that Lord Selkirk's friends ought, in his absence, rather to err in submitting to Government too many, than too few of the numerous documents which they have received from North America, as connected with his conduct and proceedings in that quarter, and which they have all along been anxious to see rigidly, but impartially, investigated. In addition to the proofs exhibited in the Ap- pendix to the printed Statement, which I had the honour of transmitting to your Lordship on the 10th ultimo, the accompanying depositions of M'Eachernand Leyden*, deserve particular attention, ♦ See Appendix, [B. & C] "■^>s#»^'"Ma«W*«*»'*<# . ,?* ' •'•'*.; '% t' Hi ll ' 18 as they confirm^ in the strongest and most marked manner, this plain and simple fact,-— that the un- warrantable attack upon the Red River Settlement, in the year 1815, y/as, solely and exclusively, the work of the North-Wcst Company. I beg also particularly to request your Lordship's at- tention to another deposition herewith transmitted*, of Alex. Johnson Williamson, late a clerk in the employ- ment of the North-West Company, and who was at FortWilliam) in the summer of that year,) when many of the colonists were brought down to that place, after having been seduced and bribed to break their contracts, and desert from the Red River Settlement — most of them in debt to their employer. William- ion states, in his affidavit, that, at the time of the arrival of those colonists, there were nine partners present belonging to the North- West Company, all of whom manifested the greatest joy at those trans- actions which bad occurred in the Settlement, and which had ended in the dispersion of the settlers. Among these nine partners (whose names are in- serted in the affidavit) was Mr. Simon M'Giilivray, one of the Company's agents, who gave special di- rections, in a letter addressed by him to another partner, Mr. Alexander M'Doncll (whose name has been sufficiently notorious throughout all these trans- actions, and who was theo employed in taking the examinations of the settlers,) in which he, M'Gilli- \i:ay, " found fault with the taking up so much time *' in the said examinations, and suggested the cxpc-> * See Appendix, [D.] A ** diency of getting it lometbing that might crimi* '^ nate, or throw blamo upon. Lord Selkitk ; ob« " Mrving that the said M'Donell ought to find out " some of the laid lettlers, who could« or would, '* swear to circumstances that might have that " effect." It b somewhat curious to observe, that Mr. Simon M'GilliTray (who is thus stated in Williamson's affidavit, to have been directing those miserable witnesses to be tampered with, for the purpose of producing such testimony as the Company hoped might criminate Lord Selkirk) is the same person who, only a few weeks before, addressed a letter from Montreal (dated 19th of June, 1815) to your Lordship, as one of His Majesty's Secretaries of State, in which, praising, as usual, the humanity of himself and his partners, he expressed his hope that the verbal communication, which he stated he had the honour of making to your Lordship, on his leaving London, would remove any impression un- favourable to the North-West Company, which, as he asserted, had been most unjustly calumniated. *' The massacre of my deceived countrymen on the, *' Red River," says he, '' I consider an evil by no " means improbable, but the idea of instigating so " horrid a deed, I, for myself, and on behalf of- " my connections, most solemnly and indignantly *' deny; — and I hope we are too well known to ren- " der the denial necessary," &c. &c. If your Lord, ship would be pleased again to refer to that letter, I think you will be fully satisfied, (now that these par-., ties are ce|:tainl^ not less known than they were 20 wbcD the letter wii written) lh«t no document can' •hew more clearly the contrait between the profetiioni' and the practice, of the company, on whoie behalf Mr. Simon M'OilHvray tranimitted the official com. munication alluded to. ' «' 'mi* . < -. ♦ ; * There appears, however, to be another Mr. Simon M'Giilivray (also employed in that Company's ser- vice) who, in his correspondence on the subject o^ the Red River Settlement, is rather more can >! ^ id ingenuous than his kinsman. About the $> imc mo- ment that the letter above cited wn:. adiiieb d to your Lordship, another was writt* / the Simon M'Gillivray, to whom I alluds, and addressed to another relative — a Mr. Archibald M'Gillivray — in the following plain and honest terms : — L ^; i .!_ ' . • . w .; *' Bat d« la Riviire, ^, , July 2d, 1815. ''Mr DEAR Archy, " Every thing is in a bustle here at this present mo* *^ ment, and every preparation has been made to be off to " day; — but cannot till to-morroiv. — lam happi/ to inform ** j/ou that the Colonic has been all knocked on the head by ** the North-West Compant/. — ** We have still another formidable opposition coming ** straight to Athabasca from Montreal, headed by Messrs. '* Clarke, Robertson, -ind Decoigne, and one hundred " Canadians ; they are wt'« o'rvtl with w*">''* pieces. This " destruction of the C ose III, it is very likclv fo think (hat some serious " consequenccH will takr place; ami I avail myself of thi.i '* oppof>nriity to write to you, thnt in case my nervires " should be wai'tcd to stizeone ot ihom, I crrlaiiily will do ** my Ixwt, but cannot answer for the resn'* —I have reflected " on this affair a lonj:: time, and find it « p> MMexint:^ one. — " Now, my dear friend, to the point ; — in in that kind " Providence takes me away to a hiUr woi m a fray ** with those fellows, 1 in a manner, muk ■ « ki < ot will, " which I dispose of all for the l)eriefit of- &c «&c. (Signed) "SIMON M'l^.LUV HAY." It does not appear, however, that Pr ^nce has beeo yet so kind as to take away this itor to a better world; — for, by Mr. Pritchard's i^arrative (referred to in the printed Statement I had t honour of transmitting to your Lordship), it ap{> r^, that this Mr. Simon M'Gillivray agaim exhibit- iimself, heading a party of the North-West Compaii';> 8 half- breeds in their expedition against the Red River Settlement, at the time when Governor Sempk «nd his party were butciiered, and the Colony a 8t lond time ** knocked on the head by the North- West *' Company." A profusion of letters have been recently obtained, and transmitted to this country, which strongly eluci- date the deep-laid schemes, and machinations entered into by the Company to destroy the Red River Settle- ment. These, and numerous affidavits which have never yet been submitted to jour Lordship, shall be )*l "'>^ ^" ^^2 copied and laid before }'ou, if required^ together with any explanation His Majesty's Government may call or. No evidence can tend more strongly to evince the intentions of the Company's partners with regard to the Red River Colony, than the general tone of the letters alluded to. One of these partners, Mr. Robert Henry, for instance, writes to his uncle from Fort William, on the 3rd of June, 1816; and, after mentioning, that " we have sent, off an express to " Fond du Lac, to raise the Indians, and meet us at " Red River; and we also take some of the Lac la " Pluie Indians," he proceeds, " we start to-mor- " row for Red River, about fifty men and gentle- *' men; I would not be surprised if some of us should *' leave our bones there. In case it may be my fate, "is my reason for writing you at present. I am " very much afraid it will be a serious business, but " must hope for the best, I expect William will " come out; in which case, he will certainly go " down; and, should I return from Red River safe, " I feel myself much inclined to leave this rascally " country for ever." — He concludes his letter by saying, " I imagine that they" (the colonists and Hudson's Bay Company's servants at Red River) " are about one hundred and fifty strong there ; so " that, if it comes to a battle, many lives must be " lost. In case of any misfortune happening to " me, my papers are all at your house, in which I *' left my will. Having a great deal to do, I must •' conclude, wishing you all manner of happiness. I remain, &c. &c. &c. «' R. HENRY." X« €t ([•' 23 «s^ Some time afterwards the same partner sends ano- ther dispatch^ (dated Fort William, 22nd of July, 1816,) in which he says, " I wrote you when I left this '* for Red River. — Nothing of importance occurred " on our way there. We arrived at that place the '* 22nd of June, and, thank God, three days after ** the battle with the half-breeds and Hudson's Bay '* people."— .This laudable gratitude for having cu" reached the spot till after the danger was over, agaiu bursts forth in his letter : *' I thank Providence," continues Mr. Henry, " that the battle was over '* before we got there ; as it was our intentions to " storm the fort. Our party consisted of about one ** hundred men, seventy fire-arms^ and two field- (f pieces. Mr. Henry is not the only partner who dignifies the cowardly and brutal massacre of Governor Scra- pie and his party with the name of a battle, Mr. Daniel M'Kenzie, another of the partnership, in a letter from Fort William, dated 13th of August, 1816, says, — I tc (t t< i-If his Lordship was furious at the dispersion of his Colony last spring, what must his feelings be, when he gets a full account of this last campaign ! I believe we have given a strong pull already, and, if his Lordship or his associates, are any way stubborn, that a pull alto- gether is very easily done." In short, the whole of their correspondence, as well as their conduct, both before and after the suc- cessive aggressions against the Red River Colony, evidently shew, that the work of its destruction is to be ascribed to them, — and to them only. I beg leave also to mention to your Lordship, that a certified copy lias been recently transmitted to this f I I- 25 country of that most important document^ the Book of Account v7hich was opened between the North- West Company and those settlers whom they seduced to desert from the Settlement, and whom they brought down to Fort William. — ^This book (as well as many of the other documents to which I have alluded) has been regularly and legally authenticated at Montreal. The entries^ &c. have been proved to be in the hand- writing of the partners^ by the testimony of several of their own clerks and servants. — These, together with all the affidavits relating to them, shall be trans- mitted to your Lordship, if required. I have the honour to be. My Lord, Your Lordship's obedient and humble Servant, „ ,„ , J.HALKKTT. Earl aathurst, Sfc. Sfc. 6)C. Downing Street, Sept. Is/, 1817. SIR, I am directed by Lord Bathurst to acknowledge the receipt of your letter of the 23d ult., trans- mitting certain affidavits connected with the recent proceedings in Upper Canada and the Indian terri- tories, in which the Hudson's Bay and North- West Companies are implicated, and to acquaint you that your communication only tends to confirm the opi- nion which Lord Bathurst has always entertained, that there can be no satisfactory termination of the 26 unfortunate disputes between the two Companies^ but hy bringing the matter to the decision of a Court of Justice. That his Lordship being aware of the objections which might be taken to a decision of the Courts in Canada, has done every thing in his power to facilitate the trial of the question at issue before the Courts in this country. In the mean time Lord Bathurst has great satisfaction in finding that with respect to the measures which have been adopted. Lord Selkirk has expressed his opinion that " The '^ appointment of the Commissioners, and the placing " that important charge in such respectable hands, " has afforded a satisfaction and relief to his mind " greater than he could well express, and that what- '* ever measures these gentlemen may adopt for " restoring tranquillity, will meet with every support '* which it is in his power to afford." lam. Sir, Your most obedient Servant, HENRY GOULBURN. ./. Halkett, Esq. w St, Mary's Isle, Kirkcudbright, Sept. 29th, 1817. MY LORD, I have had the honour of receiving Mr. Goulburn's letter of the 1st inst. (recently forwarded from London to this place,) in which he informs me that he was directed by your Lordship, to acknow- ledge the receipt of my letter of the 23rd of last month, and of the several affidavits accompanying it. The letters which I had the honour of addressing to M W t 1 . your Lordship upon the same subject on the IjBth and Slst of July, I trust have also been safely received. ■'-.: '. . ' ' '• As Mr. Goulburn's letter describes the affidavits transmitted by me on the S3d ult. as being connected with recent proceedings, in which the Hudson's Bay, and North- West Companies^ are stated to be impli- cated ; — and as he adds, that my communication (of the 23rd,) only tends to confirm the opinion which your Lordship always entertained, that there could be no satisfactory termination of the unfor- tunate disputes between the two Companies, but by bringing the matter to the decision of a Court of Justice, — I must beg leave to state, — what, indeed, a perusal of the documents themselves, I conceive, might have shewn, — that the communications trans- mitted by me applied to matters of much higher importance than any disputes between these trading Companies. They related to charges of violent and repeated outrage, committed by British subjects upon British emigrants, who, with the knowledge and sanction of Government, were peaceably establish- ing themselves as cultivators of the soil within Bri- tish territory. In supporting such settlers, and in taking the requisite means to defend his own, and their, rights of property, against such disgraceful aggression. Lord Selkirk has experienced, both in this country, and in Canada, every degree of ilLiberality and injustice. To enable your Lordship, as Secre- tary of State for the Colonies, to judge more distinctly of the whole of those proceedings in North America, in which Lord Selkirk has been engaged, and to lay I J- 28 before you the proofs of tlioie criminal outrages instigated against the Red River Settlement by the North-West Company of Montreal^ has been the object of those letters and documents which I have had the honour of transmitting to you. But with respect to the mercantile disputes of the Hudson's Bay, and North- West Companies, I must take leave to disclaim the slightest wish of entering upon such a topic, or of intruding the subject, in any shape, upon your Lordship's department, — agreeing, as I most cordially do, with those sentiments expressed in a letter which your Lordship directed to be written by Mr. Goulburn to the Governor of the Hudson's Bay Company, in January last, — namely, that the question was no longer how to settle the conflicting claims of two mercantile Companies, but how to bring to condign punishment the perpetrators of those outrages of every description which had been committed. In the letter which I had the honour of addressing to your Lordship on the 10th of July last, I stated that it was perhaps not yet too late to do Lord Selkirk justice ; — but I must be permiited to add, that he appears to have just cause to complain of the con- duct of Government, who seem willing indeed to await the decision of Courts of Justice, with respect to disputes between mercantile Companies, but who, at tlie same time, — without any judicial decision whatever, and without even instituting any serious inquiry on the subject, — ^appear to have lent an e^sy ear to every vague, and, I may add, every absurd story invented by his avowed and inveterate enemies ; 29 ^Uft* \^ '■^' and have, in coniequence, not hesitated to publish those charges against him^ which are so obviously conveyed in the Proclamation which they directed the Governor-General of Canada, to issue in May last. Lord Selkirk, therefore, has good reason to impute blame to His Majesty's Government, for issuing that document, without having ascertained ^ one single fact upon which the accusations implied in it could justly be founded. With respect to what is stated (in Mr. Goulburn's Letter) to have been expressed by Lord Selkirk, that *' the appointment of the Commissioners, and the ** placing that important charge in such respectable " hands, had affcided a satisfaction and relief to his " mind greater than he could well express ; and that, " whatever measures these gentlemen might adopt, for restoring tranquillity, would meet with every support which it was in his power to afford,"—*! must be allowed to observe, that it was natural for Lord Selkirk to hail, with heart-feit satisfaction, any measure which might eventually tend to procure for his settlers that protection, which had been so long, and so fatally, withheld from them, and to bring to condign punishment the perpetrators of those criminal acts, of which His Majesty's Government had been so often apprised. With respect, however, to the appointment of the Commission of Inquiry alluded to, the merit of that step rests entirely with the Governor-General of Canada ; and, if the Com- missioners, named hy Sir John Sherbrooke, act with the ability and integrity anxiously looked for by him in their selection. Lord Selkirk will have no reason tt u 30 to fear the result, or to change the sentiments stated, in Mr. Goulburn's Letter, to have been expressed by liis Lordship, on the subject of their appoint- ment*. It ought to be observed, however, that Lord Sel- kirk has hitherto been left almost to his own indi- vidual exertions, in attempting to put a stop to the atrocities committed in those distant regions, and in bringing to justice those who were implicated in committing them. On this point I am happy to inform your Lordship, that, with respect to one of those atrocities, — I mean the murder of Mr. Ke- veney in September last, ■— it appears, by recent accounts from Canada, that Lord Selkirk has not only succeeded in getting the clerk of the North- West Company, Serjeant deReinhard, (who confessed having aided in that murder,) safely lodged in the prison of Montreal, but has also been the means of apprehending M'Lellan, the Company's partner, by whose order Mr. Keveney was assassinated, and against whom a bill of indictment has been found by the Grand Jury in Lower Canada. To stop Lord Selkirk, however, in his progress of bringing to light the crimes of the North-West Company, it appears (by the same late accounts from Canada), that the Company had obtained, and sent up into the interior, another, and third warrant for his apprehension. This third attempt to arrest him, on a charge of felony, appears to have been *'«n» t /- * See also on this subject, the Letter of the 21st of Febru- ary, 1818, page ««Mf'^' .. / .nM«^'.,„*i &\' 31 "V attended with circ *^«tance8 even more disgraceful^ if possible, than the «.wo former ones. In the commu- nications I have had the honour of submitting to your Lordship, I mentioned that the first of these warrants was obtained from a drunken and superannuated magistrate in Upper Canada, after the judges of the 'V province, to wliom application had been made on the part of the North-West Company, had refused to grant it*. The second, your Lordship may recol- lect, was issued upon the affidavit of a wretched clerk of that Company, who swore that Lord Sel- kirk had feloniously stolen and carried away some fire-arms belonging to the partnership — which arms (as appears by undoubted evidence) had been secretly prepared for the assassination of Lord Selkirk and his party. The third warrant, of which the follow- ing is a copy, is founded upon a similar allegation, and attended with circumstances still more dis- graceful. . , , Western District f to wit. } William Handes, Esq. SlieriflP, of the Western District. ** To Jean Baptiste Blondin, Special BailiiT, greeting, ** By virtue of His Majesty's Writ to me directed, I *^ commaod you that you take the Right Honorable Thomas *^ Douglas, Earl of Selkirk, Frederick Malthey, Proteous ** d'Odet d'Orsonnens, John M'Nab, Donald Macpher- *' son, Gustavus Adolphus Fauche, John Allan, Miles " Macdonald, John Spencer, and Frederick Graffenreid, *' or eitheip of them, if they shall be found within the dis- ' ——————— ■» * This is not correct. The error is explained in the Note t ■if^-ijuc /I .; '!<. " - Even admitting, therefore, that Mr. M'GilHvray, when he went to Fort William, was ignorant of what had been planned and executed against the colony, he must, after hu arrival, have quickly discovered that the charges alleged by Lord Selkirk were not the "calumnious accusations" at which, by his letter to your Lordship, he appeared to be so indignant. Upon such discovery it was surely his duty, without delay, to have again addressed His Majesty's Government, for the purpose of unde- ceiving them,— to have candidly acknowledged his mistake, — and disclaimed the slightest participation, or approval, of those unwarrantable measures adopted by the Company, for the purpose of driving Lord Selkirk io abandon his plans of colonization in British North America. He ought to have gone further i-xhe ought to have done every thing in his power to put a stop to those violent proceedings of his partners, and used his whole influence to prevent the continuation of that system of aggression, which was but too soon resumed with such aggravated out- rage ; and, if he despaired of success in that attenipt, he should have refused to act any longer as an agent to the Company. Instead, however, of taking such steps,— .which surely would have been no more than acting consistently with those honourable sentiments expressed in his Letter to your Lordship, — Mr. 1: I' 44 Simon M'Gillivray appears to have been much more diiposed to establish what, in hiR addresi to hit winter* iog partners, he, with gravity and self-complacence, stjies, " his family claim to the feelings and opinioas •'of a North- Wester." Accordingly, we find him immediately proceeding to make good that here ditary claim, by giving special directions (as men., tinned in my letter to your Lordship of the 23rd of August last) to. several of his partners thea eropleyed in taking examinations of some of tho^ colonists who had been seduced, and brought down to Fort William ; suggesting to them the expediency of at once getting at something which might criminate, or throw blame upon^ LordSelkitk; and advising them to discover some of the settlers who couli(i or would swear to circumstances which might have that effect. U^nh At. ^tlt fy.tnW^.'Tj-h. .')ti- ,-. ■>:J-. 'j-tfT 'It is certainly a matter to be deeply lamented, that any degree of credit or confidence should have been placed in such men, — and that the Provincial Go- vernment of Canada, when Lord Selkirk first stated his grounds of suspicion with respect to the conspiracy against the Red River colony, should have paid so little attention to his statements. Had as much credit been, at that time^ given by the Canadian Government to the assertions of the Earl of Selkirk, supported by evidence, as was fatally reposed in those of the North-West Company without it, or, had any adequate inquiry upon the spot taken place at the pe« riod alluded to, those disgraceful and sanguinary acts, which have since been committed at the Red River, would never have occurred. As the colonists, how- r^ f*^ i '■' -1 eyef, have agtio returiied to tbo Settlement, it ia. earoestlj tp be hoped. that Govemtneot will take every roeaot^ vv|iich it can command* to support tbem in the peaceable occupation of their land, find to P^P^Js%» from further opprcMion. , >uuj>um, jdi ^uiiii. I !»▼« the honour to be, i ,:,i l^^^yyi^^^ iuiad ,;.•. . ,, MjrLord, ' >^,„„i.o y uU v,j(l 7j/':. Your iiordihip's obedient .. , .,^^ And humble Servant^ J. HALKETT, maaifi ■ 1 »! ■ '»r ,^ tvi 'V*»J. 4H»,{i(i Sfytjottr P/ape, February 21«, 1818. ij c • ua^ In coBBequeoce of information recently r^ ceivad from Canadaj I b^g leave to revert to the subject of Mr. Goulburn's letter to me of Septem* ber last, .'.w^i iu^. i. <*tHvv ,u'm4>/- ^■-■:'..:^ j.i ^ •, ■ -i -^ .- MjT. Goolburn mentioned^ that your Lordship had great satisfaction in finding Lord Selkirk to have stated, that ** the appointment of the Commissioners," and "the placing that important charge in such " respectable bands, had aflforded a satisfaction and *' relief to his mind, greater than he could well " express; and that whatever measures these gentle- " men wight adopt for restoring tranquillity, would *' meet with every support which it was in his power "to afford" , In the letter which I addressed to ydur Lordship on the 29th of the same month, I observed, that it ap- peared very natural for Lord Selkirk, in the situation in which he was placed, to feel much satisfaction at f-;. H 46 f 1 1 »^ I / the appointment of the commitiion alluded to, ai being a measure calculated to check the outrages committed by the North-Weit Company againit hit Settlement. ' At the same ^ime I confesi it appeared somewhat re- markable that he should, in any communication, have expressed his intention so decidedly of assisting the Commissioners, by every means in hit power, before he could have an opportunity of knowing how they were likely to act. This impression, however, was, at once, removed by a perusal of the official letter written to Lord Selkirk, in October 1816, by the Governor of Canada, thereply lo which contained the passage cited to me by Mr. Goulburn, as above mentioned. Had I known of Sir John Sherbrooke's letter, when I addressed your Lordship on the sub- ject, I should certainly, in fairness towards Lord Selkirk, have then noticed it, in order to account for the expressions which were conveyed in the answer.—- In fact, the reply could not properly be judged of without seeing the communication which produced it. Under this impression, I take the liberty of subjoining a copy of the letter alluded to, which I only received a few days ago. .4l'^(|^'4i " k^f' " MV L0«», ,1 ' .r. -tv!,. *' Quebec, SO/A Oct. 1816. ** With reference to (lie latter part of your Lord- " ship^s letter of the 3rd of September, in which you ex- " pressed a strong desire, that a Commissioner might be *' sent up to Fort Williani and the Indian territories, on '' the part of Government, to quiet the existing disturbances, '* I have ranch pleasure in acquainting your Lordship that ** I have been enabled to meet your wishes in this respect " by the appointment of the Honourable W. B. Coltman, a «v 1 tr 1 *' latiuber of the Executive Council of this Province, and '* John Fletclier, Esq. one of the principal Magistrates of " Police here, to be Magistrates for the Indian territory, end ** Commissioners of Special Inquiry, with full powers and '* instructions in each capacity. ** Entitled as these gentlemen are by their talents, inte- *^ fi'^^Jy Bnd impartiality, to the fullest confidence in all *' that they shall do, 1 have no doubt, that they will re- ** ceive your Lordship's entire sup|iort in the measures they 'Uhall adopt for the rutoration of tranquillity in that " disturbed country.*' „,^,r v,,,^ |' » rr. f, /I ' rViH t,iV I have the honour to be, " Your Lordship's obedient ~^ lirfrt'} '' *' '^ • ' ••humble Servant, ^ '^^ ' " ' ' (Signed) " J. C. SHERBROOKE." " Earl qf Selkirk." . i , When the Governor of Canada thus assured Lord Selkirjk that the Commisiionerfl whom he had ap- pointed were entitled, from their talents, integrity, and impartiality, to the fullest confidence in all that they should do^ it could scarcely be expected that Lord Selkirk would reply to that part of Sir John Sherbrooke's letter in terms less unqualified than those which he adopted. > ;^^, ,, It further appears by Sir John Sherbrooke's letter, ; — and it is most important and satisfactory to ob- serve it, — that Lord Selkirk had himself originally applied to the Governor of Canada fur a special com- mission of inquiry on the part of Government. . . . , With respect, however, to the line of conduct pursued by those who were named in the commission. r-r: ■i> 4$ I lome imporlant docunf«n(t willioon be laid before His Majeity'8 Government, \rhieh will but too clearly shew, that, notwithitanding the care and anxiety of the Provincial Government of Canada to select persons in every respect qualified for so im- portant a charge, Sir John Sberbrooke, as well aa Lord Selkirk, will have but too much reason to feel diitappointed at the stleetion which took place : and a similar disappointment cannot fail to extend to the Government at home, who, in their Proclamation issued at Quebec in May last, confirmed the nomi- nation of Mr. Coltman aud Mr. Fletcher as the Commissioners, uviii ».'(iiif-f..,v| j...,Y • On the subject of thai Proclamation I took the liberty of addressing your Lordship on the 18th of July last, and stated, that the directioni which it conveyed, with respect to the discharged soldiers, had not been, and, indeed, could not, on any just ground, have been carried into efiect. These men had entered into lawful contracts to settle at the Red River, and many of them have since taken regular allotments of land for cultiration. With respect to every other part of the Proclamation, it will be found, that Lord Selkirk, (under a protest, however, vrith regard to his right, in point of law, to certain property given up by him to the Commis- sioners), has paid a faithful obedience to its direc- tions. ' . ^ . . a . - But although Lord Selkirk evinced the most re- spectful deference to the Proclamation, the North- West Company turned the whole measure into an instrument for promoting their own special views and ♦ ■ ■'■i K lKi.. .• •■^ -L »*-li^tll I* <-..,^ 49 idvaoiag^e. Bifore (lie Cbmmisilon of Tnqufrj rMched the interior, lome partneri of that Company had, with their usual activity, got the start of the Commissioners. Having procured printed copies of the Proclamation, they carefully distributed them wherever the circulation could serve their purpose. They gave out, that Government had issued tliat document at their sole request, and for their exclu- sive benefit; and, while the commission wai moving slowly forward to the Red River, where tlie most important evidence respecting the late outrages was to be looked for, the North -West Company were actively employed in the interior increasing their store of plunder, instead of attending to the order of restitution enjoined by the Proclamation. One of the very first steps, also, which was adopted by Mr. Coltman the Commissioner, after his arrival at the Red River, was such as could not fail to in- duce those who were guilty of the atrocities com- plained of, to believe that their offences would, after all, be looked upon as not very deserving of punish- ment. Although the Proclamation had publicly de- nounced, in language of well-merited reprobation, the crimes which had been perpetrated, the Commis- sioner officially promulgated his opinion, that these offences, as far as related to the past commission of them, appeared to him to be of a very venial descrip- tion. The crimes committed at the Red River, and in the countries adjoining, were flagrant and noto- rious. Mr. Coltman ought to have been fully avrare of their nature and magnitude. Prior to his depar- ture from Montreal, bilU of indictment had been J. I BO found bj the Grand Jury against partners, clerlis^ serrants, and adherents of the North- West Coropanj^ for crimes, such as murder, maliciously ihootingt assault, robbery, theft, and arson. Yet we find Mr. Coltman officially issuing, upon the spot, a cir- cular, addressed to the various parties referred to in the Proclamation, iwhich concludes with the follow- ing extraordinary observations :— ti,- *' The Proclamatibii, however ordered, as it' is understood '* to be, with the advice of the most eminent lawyers in ** England, under a full view of all the circumstances of the '* case, appears to treat these violences rather as acts of pri- " vate war or hostility, than as robberries, felonies, or ** murders, in the usual acceptation of these words, and it ** is fairly to be presumed that judges and juries will here- *' after be inclined to look upon them in a similar view. '* In general therefore, it appears to me, that those of your " colleagues who may have been respectively led into a par- ** ticipation in those acts of violence, may look for a con- " siderable share of lenity in the judgment to be exercised *^ on the past offences of all who have not participated in *' deliberate murder, or been the primary causes or insti- '' gators of the offences at large, provided they and their " colleagues yield a cheerful and unreserved obedience to ** the orders of their Sovereign for the future. ** On the other hand those who shall be backward in so *' doing will expose themselves to the severest censure, and ** the retention of property, especially, which shall be known *' to either party to belong to the other, now that the ille- *^ gali(> of the original seizure is publicly declared, will " expose any one so knowingly offending to the odious and " disgraceful charges of robbery and felony, which, by the ^* terms of the Proclamation, do not appear originally to " have been thought applicalHe to them, and may further, 51 ^' in my conception, by sb wing an original f(eloniona in- " (ention, still render the parties liable to conviction i^p^ ** legal punisbaaent (or those offences." j j i imf|a « fj¥lliave the honour to remain, ,/; ibjif^r 1ir> 8^ J3b o. ... « Gei^tetoen, &c. &c. &c. ,mm ^?Mt 'in o (Signed) « W. B. COLTMAN."> ttwoura be superfluous to animadvert upon the dpihiotts thus officially circulated by Mr. Coltman. When \ve find ah acting magtstrate, whoni it was thougbt advisable to intest with liilusual powers for the preservation of the peace, thus labouring to soften doWti the crimes (denounced by the Prockma- tioD^ into a something, which he curiously denomi- oates "private war/' it would be idle to make any further remark upon the subject. Nor should I have thought it at aU necessary to notice such a pro- duction, had it not been for the evil tendency which it must unavoidably occasion in retarding, instead of advancing, the administration of justice in a coun- try already sufficiently lawless. Iliavcafsb again to request your Lordship's at- tention to the subject of those various warrants issued in Upper Canada, for the apprehension of L(Nrd Selkirk, and the gentlemen who accompanied him in North America. It appears the more necessary briefly to revert to them, because it has been asserted, tbat one of the principal reasons assigned by His Majesty's Government for issuing the Proclamation at all, was, that Lord Selkirk had effected what has been called a resistance to legal process, or,, as it is twined in tlie PrOclaniatiOD« ft i«icufl '/. J^fp^ l§^|il ttrrest ancl euitodj.*' ;.!•/-• I noticed to your Lordship the ground^ updn' which these arrests had been issued, iliiniely, upon depositions (notorioasly false) of certain clerks of the North*West Company. Two of these men, Yandersluys and M'Tavish, had solemnly sworn, that Lord Selkirk feloniously stole, and carried away» eighty4hree fusils, th^ property of iheir mas* ten. Theie fusils, as your Lordship woul^ pbierfo from the evidence' produced to you, had been law^ fiilly seised and secured, in consequence of a search- warrant issued by Lord Selkirk, as a magistrate, upon iofornMtion laid before him, that they had been removed, and secreted the night before^ for sot;:' illegal and felonious purpose. The search was a cordingly made, — the arms were found fresh loaded and concealed, and, having been seized by those to whom the search-warrant was entrusted, they were again safely deposited in the place from whence they had been surreptitiously removed the night before. That they were so removed with the knowledge, sanction, and assistance of the two managing clerks themselves (Yandersluys and M'Tavish) who sub- sequently swore to the felony, there cannot exist a doubt. But this is not all ;-~for these two men« when they thus swore that the arms bad been feloniously, knew that they had been lawfully seiied. The search-warrant had been previously exhibited to them at Fort William, and they are therefore liable to be indicted, and I have no doubt will be indicted, for a conspiracy to charge Lord N. V! 0«' ^y 53 Selkirk^ and the other gentlemen named in the war- ranty "with the commission of a capital offence, which the deponents knew had not been committed. I request your Lordship, on this subject, to peruse the accompanying examination of Mr. M'Nab, which was taken some time ago before a bench of magistrates at Sandwich, in Upper Canada*. He was one of those named in the warrant issued in consequence of the information upon oath of Vandersluys and M'T^vish, —a copy of which document I transmitted with my letter to your Lordship of the 10th of July last. In the letter, which I had the honour of address- ing to you on the 29th of September, I mentioned that one of the numerous writs obtained by the North- West Company, for the purpose of apprehending Lord Selkirk, had been sent after him (as I under- stood) subsequent to his departure from Fort Wil- liam in May last ; and I added, that, if it was attempted to be served upon him beyond the limits of Upper Canada, it was earnestly to be hoped that he would resist its execution. I had no hesitation in so stating the matter, because, in the first place, the warrant in that case (whether founded on perjury or not) would be illegal ; and, in the second place, if Lord Selkirk had submitted to the arrest, he would have stood a good chance of being put to death by the constable. I now 6nd that I was correct in my assertion, as to the invalidity of the warrant ; and it is also satisfactory to know, that Lord Selkirk refused to obey it. A person of the name of Smith, styling ' iJ * See Appendix [F.] X .;; o ■) >i \ 4. I 54 himself " deputy sheriff/' in a country where he had no jurisdiction, was employed by the North- West Company to pursue Lord Selkirk to the Red River^ to which place his Lordship had proceeded for the purpose of re-establishing his Settlement. In- steady however, of executing his warrant, Sn^'*b was himself very properly taken into custody as a dis- turber of the peace^ and was subsequently bound over, (by Mc. Coltman the Commissioner,) in security for his peaceable behaviour^ m' />..♦./ »-/ f^?* ? Being thus balked in his endeavours to serve his employers^ he was shortly afterwards prevailed upon to appoint (though he had no right so to do) a ^'sub-deputy sheriff." He accordingly selected a Metif, or Indian of the half-breed, named Camp- bell, into whose hands he put a new warrant of his own making. Every thing being now prepared, Mr. Deputy Sheriff^ — himself under articles to keep the peace,— dispatches Mr. Sub-Deputy to break it. Campbell is accordingly conveyed to the Red River by Mr. M'Kenzie, an agent and partner of the North- West Company; When he arrived at the Settle- men^., he seems to have been rather shy in com- mencing the performance of his expected duty. He was assured, indeed^ in the presence of Mr. Coltman the Commissioner, that the warrant which had been given to him was invalid, — that if he attempted to execute it, he would be guilty of a breach of the peace, and should, in consequence^ be immediately appre- hended. This admonition liad for some time a whole- some effect ; but being subsequently goaded on by two of the North-West Company's partners, then upon ■'•« t^*' ■1 fi" ■'5!"» 55 the spot, he mustered courage enough^ some days afterwards, to enter forcibly into the house occupied by Iiord Selkirk, and attempted to arrest him. The consequence was, that the Sub-Deputy shared the same fate with the Deputy-Sheriff, and was im- mediately compelled by the Commissioner to find se- curities (from two of the North-West Company then present,) in the amount of £500 for his good beha- viour. — Such is the nature and real character of those cases of resistance to legal process, and rescue from lawful arrest, with which Lord Selkirk, and the gen- tlemen who accompanied him into the interior of North America, appear to have been so harshly and prematurely charged by His Majesty's GoTernment. But it would seem, that Government has not stopped here: for it is positively stated, that orders were some time ago sent out from this country to institute criminal proceedings, on the part of th<; Crown^ against Lord Selkirk, in Upper Canada. It is upon no vague rumour that I state this report; and I will pledge myself to shew, if it should be deemed necessary so to do, that the Attorney-Gene- ral of the Upper Province has himself avowed, that he had received official instructions from Govern- ment at home, to institute such prosecution. I must confess, that there appears something so unusual, and so unaccountable, in the measure thus stated to have been directed, that it is not an easy matter to give it implicit belief. But if the asser- tion remains uncontradicted, I presume it may not unreasonably be looked upon as well founded; and I conceive that I am making no improper re- ( 56 quest in asking information from jour Lordship on the subject. Those ivho are connected with Lord Selkirk — and who^ from an intimate knowledge of his character and worthy are deeply interested in what concerns him — feel themselves to be fairly entitled, in his absence^ to inquire^ of those who are in power, what steps they are taking with respro^ fo him. There surely can exist no good grounds for secrecy on such a subject. Were Lord Selkirk in England, he would have a right to demand, as he most as- suredly would demand, to know if any, and what, directions had been issued by Government to have him prosecuted as a criminal— -to know what charges of felony were previously brought against him — and who the persons were who so accused him. He would have a right to eipect either that vague and undefined assertions relative to his alleged delinquency should be openly done away, or that he should, at once, be fairly and legally put upon his trial. But if <^o. vernment have thus ordered criminal proceedings to be instituted against him in Canada, the very know- ledge of such an order having been issued, (and it was not likely to be long concealed,) must necessarily have created a strong and unfair impression against him in the Colony where he was so directed to be tried. If any such interference has taken place on the part of the Executive Government, it was surely not only unconstitutional in its piinciple, but obvi- ously unjust to the parties accused. The law should have been allowed to take its course. The North- West Company, by whom all the machic^iry of illegal warrants, false affidavits, and perjured depo- • !^' <. . 57 */ nent8^ had been put in motion^ ought to have been permitted to go on with their prosecutions in their own way. The result would infalliblj have con- vinced His Majesty's Govfrnment^ that, when the whole matter was ready to come before a jury, when the persons accused were prepared to meet the charge, and when the public was, at length, to be enabled to ascertain the real state of the case by the production of evidence in a court of justice, the North- West Company would have been too prudent not to abandon the prosecutions. But if Govern- ment, misled by the false, but artfu*, information laid before them, have ordered criminal prosecutions in Canada to be instituted on the part of the Crown, before it was ascertained that crimes had been com- mitted, the result must evidently tend to the pre- judice of the parties accuseds and to prevent an unbiassed and impartial inquiry. And I must beg leave further to remark, that although it was stated (in Mr. Goulburn's letter to me, of September last) that your Lordship was aware of the objections which might be taken to the decisions of the Courts of Canada with respect to the disputes which had occurred, and had, in consequence, done every thing in your power to facilitate the trials of the questions in this country, yet, as far as Lord Selkirk's case was to be attended to, it would appear, that these objections were to be deemed of very secondary importance, and that the Attorney-General of the province was to be ordered to prosecute him in a Canadian Court. Whether Lord Selkirk, as a Peer, mm mmm W'WP^^^^*flffl mmm \ 58 can be legally tried for felony in a British colony, I know not. The case, I believe, is a novel one. Butj even allowing the existence of those objections to the Provincial Courts alluded to by your Lordship> I should suppose, that with respect to the singular charge, and the only charge, of felony v?hich the North-West Company have had the effrontery to bring against him, it must be of very little conse- quence to Lord Selkirk, on his personal account, whether he is to be tried — for feloniously stealing and carrying away eighty-three fusils,— -by i jury in Canada, or by his Peers in England.-^'^*'' '^ j-im Lord Selkirk has now, of his own accord, pro- ceeded to Upper Canada to meet this, or any other charge, which either the Crown Lawyers of the province, or the North- West Company, may think fit to bring against him ; and as he has been strongly urged by those most interested in his wel- fare in this country, to repair us soon as he possibly can to England, I trust that he will be thereby soon enabled to remove those unjust prejudices which have been but too successfully raised up against him, — and to procure, in some shape or other, that justice which appears to have been hitherto so difficult to obtain. I have the honour to be, '" ' '' ■ -^^ ^^■'■' > My Lord, ' ''"'. -•' : V . - Your Lordship's obedient, ■ *; and humble Servant, J. HALKETT. •>! J r> Earl Balhurst, fyc. 8fc. ifCt^ ;t!. v., » r\ '60 y •1, '41/''! / {>t 1(1 limning Street, 7th March, 1818.^ •" "**' ;'.'»).' ^nll no RnotivViuJKiio iDilhnT ,r.,. 'AYvtr hn-ih: I &"> directed by Earl Bathunt to acknow^ ledge the receipt of your letter of the dlst ultimo, entering into a detail relative to the proceedings of the Commissioners appointed for the investigation of the outrages stated to have been committed by the agents of the Hudson's Bay and North- West Com« panics in the Indian territories, and to acquaint you, that although Lord Bathurst will always consider it to be his duty to receive all the information which may be tendered to him, regarding the late un- happy differences subsisting between the North- West Company, on the one hand, and the Hudson's Bay Company and Lord Selkirk, on the other, yet he cannot admit that any individual (however respec table) is authorised to call upon him to enter into explanations of the measures adopted by His Ma- jesty's Government, with the view of restoring, if possible, a good understanding between the contend-^ ing parties. , ; , ; ; j ; „I am. Sir, , , ^^ , Your most obedient Servant, J. Halhttt, Esq, : ! : , . i , i= ; H . GOULBURN. I !.' Seymour Place, March \Oth, 1817. MY LORD, I have to acknowledge the receipt of Mr. Goulburn's letter in answer to that which I had the 60 honour of addressing to your Lordship on the 21st oPIast month, and although I did not Mrish to intrude vrith any further observations on the subject of my last communication, I feel it necessary to defend myselfagainst the charge, implied in Mr. Goulburn'f letter, of' having been improperly calling upon your Lordship to enter into explanations of the measures stated to have been adopted by His Majesty's Go- vernment, with the view of restoring, if possible, a good understanding between the contending paKies. In the letters which I have taken the liberty of addressing to His Majesty's Government upon these unpleasant topics, my object has been to give — not to ask for — explanations ; —and I think the only instance which can be pointed out, in which 1 have requested from your Lordship any information at all, was — not with respect to what measures Govern- ment might, or might not, think proper to adopt for the purpose of restoring what is termed a good understanding between contending parties, — but to ascertain whether a report prevalent in Canada, that Government had ordered Lord Selkirk to be prose- cuted as a felj>n, was true, or false.—- This request for information on my part, ought not, in justice, to be confounded with any improper or unauthorised demand upon your Lordship, as Secretary of State, to enter into explanations with an individual, on the subject of measures adopted by His Majesty's Go- vernment, with respect to the contentions alluded to. In fact, I only requested, in Lord Selkirk's absence, what, if present, he would, I conceive, have bad a / • • l> ■^ViwikSv-*" ' a '\ right to demand, — namely, to be informed whether the Executive Government had ordered a criminal prosecution to be instituted againat him ; and, if so, for what crime, and upon whose accusation. The report alluded to was not a vague and idle one. The Attorney-General of the province had him- self declared, that he had received instructions to prosecute; and although no apprehension can, in the slightest degree, be entertained by any friend of Lord Selkirk^ with respect to the ultimate result of these criminal proceedings (if they are persisted in), yet the very conviction which prevails in Canada, that Government had sent out the instructions al- luded to, must have widely and rapidly augmented the hostility and prejudice which had already been so industriously stirred up against him in that country. An uncontradicted rumour circulated throughout the Canadas, that Ilis Majesty's Minis- ters considered Lord Selkirk to be guilty, and had, in consequence, directed him to be criminally prose- cuted, could not fail to add to the injustice of that stigma which had been cast upon him b;; some of those premature allegations conveyed in their Pro- clamation of the 3rd of May. If, on the other hand, there existed no good ground for the report, that instructions had been sent out to prosecute Lord Selkirk, and your Lordship had di- rected that I should be apprised of my error in having supposed it could be true, I should have taken every means in my power to contradict it in this country, and to counteract, (by transmitting to Canada the real K staU; of the tue), the injurious and unfounded im- pression which the rumour had occasioned. .. i , ,,^ , I have the honour to be. My Lord, Your Lordship's obedient and humble Servant, Earl Bathurtt, ^ J. HALKETT. frc. A"C« ifC' / > 1 r ^ Seymour Place, SOlh January, 1819. MY LORD, It was not my intention to have again addressed your Lordship upon Lord Selkirk's affairs, or to have tendered any further information on the subject of those letters and documents, which, during the last two years, I have had the honour of transmitting to you. But the system of oppression and injustice in Canada, of which Lord Selkirk has had such good reason to complain, has increased to so great a pitch, that I must take leave once more to submit the subject to your Lordship's serious attention. From documents which Lord Selkirk has put into my hands, I am enabled to bring down the narrative to a period considerably later than that to which I had already submitted the circumstances to the Colonial Department. I should now have left to Lord Selkirk himself, the task of continuing these remonstrances ; but his recent ill-health, and the nmltiplicity of business which has pressed upon him since his return from America, have hitherto r I 63 K '-^-1 prevented him from paying that attention to thii subject which its importance demands — whether viewed with respect to the preHervation of private rights, or the promotion of public justice. In my letter to jour Lordship, of the 21st of February last, I mentioned that Lord Selkirk had, at that time, voluntarily repaired to Upper Canada, to meet any charges which the Crown Lawyers in that province, or the North- West Company of Montreal, might have thought tit to bring against him. The nature of those charges, and the unjustiflabltf measures to wb'"^^h the<' havo given rise, both in Upper and Lower Cana a, shall now be laid before you. In submitting t jero to yout Lordship's atten- tion, audio a( VLiting, as I luust unavoidably do, to numerous other judicial proceedings, I am fully aware th it I shall be led into a detail of no incon- siderable length. The circumstances, however, attending them appear much too important to be transiently noticed ; — and nothing short of a full, and comprehensive statement, can enable your Lordship to judge of them clearly and distinctly. Before, however, I enter into this necessary detail, I ruu Hi take leave to recal your Lordship's recol- lection to what I stated, in my letter above referred ii), on the subject of a report then current in Canada, that orders had been sent out to that colony, to have Lord Selkirk criminally indicted. At that time, I took the liberty of mentioning, that, if such were the case, it was a most improper interference on the part of the Executive Govern- I <■*■ y I 64 meni, to direct an individual to be prosecuted for a crime, without having good ground to be satisfied that any crime at all had been committed. The report to which I then alluded has, however, been too well corroborated ; and I must take this oppor- tunity of stating the circumstances attending such corroboration, because it is not improbable that they have been much misrepresented to His Majesty's Government. During the last March Term at Montreal, Mr. Uniacke, the Attorney-General of Lower Canada, in giving some papers to Lord Selkirk, delivered among them^ by mistake, one in the hand-writing of Mr. Pyke, the Advocate-General of Quebec, who had been apnointed as legal adviser to assist Mr. Coltman the Commissioner of Special Inquiry. The paper, — of which the following is an accurate copy, — bore all the marks of having been written by Mr. Pyke in great haste : — ** I am fully sensible of the danger which may, in the " interim, result to the comniercial and political interests " of Great Britain, from the opening which the conduct of " Lord Selkirk appears calculated to give to the admission " of foreign influence over the Indian territories, to the " exclusion of that heretofore exercised by the subjects of " Great Britain, and for* the necessity of putting an " end to a system of lawless violence, which has too long " prevailed in the Indian territory, and the more distant "'nic/' .'* I. '■ # Supposed " of ^ 65 "^■■^y *' parts of Upper Canada. By resistance to the execution *' of the warrants issued against him, Lord Selkirk has ren- " dered himself doubly amenable to the laws; and it is " necessary, both for the sake of general principle, for the " remedy of existing, as well as for the prosecution* " of farther evils, that the determination of the Government *' to enforce the law with rei^pect to all, and more particu- " larly with respect to Lord Selkirk, should be effectually " and speedily evinced. You will therefore, without delay " on Ihe receipt of this instruction, take care that an indict- " ment be preferred against his Lordship, for the rescue of " himself, detailed in the affidavit of Robert M'^ Robb; and, " upon a true bill being found against him, you will take " the necessary measures in such cases for arresting his ** Lordship, and bring him before the Court from which " the process issued. " As it appears not improbable that Lord Selkirk may, " previous to the issue of process against him, have removed *• from Upper Canada, into the territories claimed by the " Hudson's Bay Company, it will be necessary, in order, in " in such case, to give validity to the warrant against him, *' that it should be issued, or backed by some Magistrate " appointed under the Act of the 43rd of the King, to act " both for Upper Canada and for the Indian territory. By '^ this means the warrant will have, under the provisions of *^ the Act of Parliament, a legal operation, not only in Upper *' Canada, but in any Indian territories, or in any other " parts of America (without excepting the territories of " the Hudson's Bay Company), which are not within the " limits of either of the Provinces of Canada, or of any civil " government of the United States, and you will see the im- " portance of not permitting its execution to be defeated by n * Supposed " prevention." A 6Q *' any irregularity in the warrant itself, or by any change of " place on the pftrt of Lord Selicirk. A Captain Mallhey ** appears to have been equally concerned in the rescue of " Lord Selkirk ; you will take, with respect to him, the •' same measures which you are hereby instructed to adopt " with respect to Lord Selkirk, " and you will equally enforce the mutual restitution of ** places captured, and the freedom of trade throughout the '* Indian territory. ** I have only further to add, in reply to the inquiry con- '* taioed in your dispatch^ No. 70, that if the Commission- '^ en are appointed Magistrates of the Indian country, in ** the terms of the 4:drd Geo. III. to which I have already ** deferred, and to the terms of which it is important to ad- *' here in their commission, their powers extend over Upper ^* Canada, and all those Indian countries without distinc- " tion, even within the limits of the territory claimed and ** possessed by the Hudson's Bay Company." *' nth February, 1817." '^..A' ^' Js- Mr. Uniacke soon discovered the mistake that had been committed in delivering this paper to Lord Selkirk^ and he lost no time in applying to have the documents, among which it had been placed, retorned to him. They were accordingly given back, when the paper in question was immediately handed by the Attorney-General, to Con' issioner Coltman, who was then sitting near him in Court, and had expressed much uneasiness that it had fallen into Lord Selkirk's hands. Before it was thus re- stored, a copy had been taken, and Lord Selkirk, in the course of the same day, had a conversation with thg Attorney -General on the subject. I • r' ^w> '' .->• 1 67 In this conversation Mr. Uniacke spoke of the paper as being an extract from a Dispatch, of which he affected to suppose Lord Selkirk must have been previously informed ; and he stated thut it was in con- formity with the tenor of the instructions it conveyed, (which however he acknowledged had not been offi- cially communicated to him,) that he was then pressing the Court at Montreal, to exact an enormous bail for Lord Selkirk's reappearance in Upper Canada, — a subject which it will be requisite for me to advert to in the sequel of this communication. Lord Selkirk, a few days afterwards, attended by Mr. Gale, one of his Counsel, went to Mr. Coltman, who, when spoken to on the same subject, did not deny that the paper alluded to was an extract from a Dispatch transmitted by the Colonial Department. Some weeks afterwards Mr. Uniacke, the Attorney- General, accompanied by Mr. Marshall, the Solicitor- General, made a personal application to Lord Sel- kirk, for the purpose of persuading him to make no use of the document which had thus fallen into his hands, urging, that as it had bee found by him among papers communicated coiifidcutially, it ought also to be regarded in the same light. Lord Selkn'-c told them it was sufficiently evident that the pap^ had not been communicated to him in confidence ; that it had fortuitously come into his hands by a blunder of some of the parties ; that it appeared by its contents, he had been treated by Government with marked injustice ; and that although he did not know whether he should make any use of it, he felt himself fully entitled to act with respect io it in 68 aiiy way he thought fit. The Attorney-General then^ with a shew of friendship which Lord Selkirk knew well how to appreciate^ told his Lordship that his retaining, or making use of the document, could not but tend to hurt his own cause with Govern- ment ; at all events that he (Mr. Uniacke) should feel it incumbent upon him to make a statement of the circumstance which had occurred. To this Lord Selkirk replied that the Attorney-General was of course at liberty to make what statement he thought fit. ' • ' Throughout the whole of the proceedings which I have now to detail to your Lordship, the baneful and unjust effects of this Dispatch will appear but too evident. In order to render the detail mere distinct, it will be advisable to notice J^irst, — The proceedings instituted against Lord Selkirk; and some gentlemen who accompa- nied him into the interior. Second, — The Prosecutions set on foot by Lord Selkirk against partners, servants, and adherents of the North- West Company ; and, Third, — Prosecutions instituted by the North-West Company against persons employed at, or be- longing to, the Ret! River Settlement. In my former communications to your Lordship, I adverted to the subject of several warrants which »- — « j=:^ *— • jr:^:!i 69 had been obtained against Lord Selkirk, and vtrhich his opponents had attempted to execute at Fort WiN liam, and Red River. I also mentioned generally the grounds upon which it appeared that he had refused to submit to these arrests. Lord Selkirk having after-* wards voluntarily repaired to York, in Upper Canada, in order to meet any charges brought against him, he vt^aited upon Mr. Powell, the Chief-Justice, to offer bail for his appearance. Bail was likewise offered by Captain D'Orsonnens and Mr. Allan, whose names were also included in the warrants. The Chief-Justice refused to interfere, on the ground, as he stated, that no complaint, or warrant, was regularly before him. But although Mr. Powell declined taking cognizance of the application made to him, he thought fit gratuitously to proffer his adviiiC on the subject. He told Lord Selkirk that the chsrge of resistan'^e to legal process was of a pe- culiar nature ; ihat the law with respect to it was particularly severe ; and that the offence was not bailable, even by the Chief-Justice, who, in the case of any other crime^ rould admit a prisoner to bail. He added that he did net suppose the Attorney- General WL disposed to adopt any measure of unne- cessary harshness towards Lord Selkirk, but that if the matter were officially taken up, and a regular appli- cation in consequence made to him (the Chief-Jus- tice), he could not refuse to issue warrants for s.rresi, and commitme» : f the parties, the effect of which would be, that they must unavoidably hp. de- tained in custody till the nex >8sizes at Sa rid v^ch. L 'iS ' 1: 70 Tiie Chief- Justice further observed^ that althoiq^h b|0 oflScial step had beeD hitherto taken upon tke subject^ H was impossible to any bow mm\ it might he. brought befor? the Law Ofiir«jrs oftiie CrawD ;; and he there- fore advised Lord S^-^Iku l., and his fMi^nds, to retire within the frontiers of the Vaii/ >! hmr^, where they mighi remain in safety till they should think it advisablu to nmke their re-appearance on British ground. ,.^'-,'ri i .•■.. c, -.jv; ;,'i H"i Lord Selkirk did not take upon him to dispute very strongly tLz cp'mmn so posit! s^^ly laid down by the Chief-Justice m a lawyer, but he took the liberty cf declining to follow the advice he pretended to give as a friend. He determined to proceed at once ta Sandwich, from whence the warrants for bis appre* hension had issued. Before he set out^ however, he waited upon Mr. Boulton, then AttorneyXreneral^ who, among other things, mentioned that Instruc- tions from the Secretary of State had been coramu* nicated to him, containing directions to institute criminal proceedings against Lord Selkirk. Upnu his arrival at Sandwich, in the month of January, Lord Selkirk found that the Quarter Ses- sions for the District had just terminated; but, upon the Chairman being informed that the parties ac- cused hctd tome to present themiielves before the Magistrates, a Special Session was called, at which a considerable number of them attended. The first point wh vb was brought forward wm the Warrant for ■ ' -ny, which had been is led against Lord 9^\l ^ and several other persons. r^a» ' 71 The Magistrate by ^hom that Warrant had been granted, and also the two others who had acted with him in taking the Information upon which it was grounded, were among those present on the Bench. The Information had been sworn to by the two clerks of the North- West Company — Vandersluys and M'Tavish, — who, as} our Lordship may recollect, had charged Lord Selkirk and the gentlemen with him, upon oath, with having feloniously stoien^ighty- three fusils belonging to that Company. Upon (his charge Lord Selkirk stated to the Ma- gistrates that, in consequence of information laid before him at Fort William, he had issued, as a Magistrate, a regular search-warrant, for the pur- pose of discovering and securing the arms in ques- tion, which, in consequence of the search thus autho- rised, were found secreted, and evidently prepared for a projected attack upon himself, and those who accompanied him. He further stated that the search-warrant itself had been shewn to, and read by, Vandersluys and M'Tavish, and that these men were therefore chargeable with perjury, in having sworn that the fusils were feloniously stolen, when they knew they had been lawfully seized. Mr. Henry Boulton^ then acting as Solicitor-Ge- neral of Upper Canada, — who had followed Lord Selkirk to Sandwich— supported the charge as much as was in his power. Fortunately, however, another affidavit was produced to the Magistrates, which had also been made by Vandersluys on the same subject. By a comparison of tliat document with the other information which he liad sworn to, itevi- \\ 79 '. , \ denlly appeared, that if the one affidavit was true the other must be false; and the Court seeing that no reliance was to be placed upon such testimony, set aside the warrant, and discharged the parties from their arrest. The charge of Felony being thus disposed of, Mr. H. Boulton next produced to the Magistrates a person of the name of Robinson, who had been ap* pointed a Constable for the purpose of executing another warrant which had been issued against Lord Selkirk, and the other gentlemen, by a Dr. Mit- chell of Drummind's Island (of whom mention is made in my letter to your Lordship of the Slst July, 1817), on a charge of having committed a riot at Fort William, forcibly entering the gates, putting the inhabitants in fear of their lives, &c. &c. The original warrant which Mitchell had issued was pro. duced, but neither the information upon which it had been granted, nor the person by whom the charge had been laid. The SoIicitor.GeneraI, however, having stated, that he had witnesses following him from York, who would support the charge, and whom he expected at Sandwich that evening, — the Court adjourned. On the following day, about the time when the Court was to be resumed, the SoIicitor-.General pro- posed to Lord Selkirk, that instead of proceeding with the examinations before so numerous a Bench, they should be taken privately before two or three Magistrates. He added, that unless this proposition was agreed to, he would have the parties arrest ] a-new, and taken bef jrt a Magistia' i of his own 1^:1 " 73 choosing. Lord Selkirk replied, that it was immate- rial to him before whom the examinations should proceed, and that the matter must rest with the Magistrates. Mr. Boulton then proceeded to the Court-house, where he made the same proposition ; but the Magistrates considered it as improper, and accordingly rejected it. Lord Selkirk, Captain D'Orsonnens, and Mr. AUaUj were then sent for, Itiai the examinations might go on ; but Mitchell's warrant having been left, at the adjournment of the Court, in the custody of Robinson the constable, the attendance of that pc^rson was previously required. He refused to come, and Mr. Boulton, who, on the rejection of his proposal, had left the Court-house, also declined to return. The Magistrates appeared disposed to assert their authority, and were about to direct the Sheriff to bring Robinson before thero, when Lord Selkirk, being appreht 3 that much time would be unnecessarily consumed in these discussions, and being anxious to proceed without delay to Lower Canada, requested that the Magistrates would wa; ': their objections to Mr. Boulton's proposal, — to which request they acceded, though with considerable re- luctance. Upon this, Mr. Boulton, attended by Robinson, quickiv lile his re-appearance, and named the Magistrates who were to form the Court for the further examination of the charges. In addition to the Chairman, and another of those who had at- tended at the previous examination, he selected a Mr. M'Intosh, whom he brought with him, — an avowed agent of the North- West Company. I \ 'i m ' 74 The Cart »f the Crown, by tlie express orders of the Si' *ai of State. • ' '^i he next point which came before the Magistrates was a charge which Mr. Boulton also said he was officially directed to bring forward against Lord ''^-•Z ^^ ./-^ i Selkirk, — vix. of leiiitaoce to legal procen, ia having, together with othera, refused to luhmit to the laai-iufotioned uvurant, (that fox the riot, &t.) at the time the execution of it was attempted at Port William* by Robinsoii the constable. On thii sub* ject Lord Selkirk submitted, in explanation to the Magistrates, the circumstances Tvhich I have already noticed in my letters to jour Lordship ; — in addition to which it appeared, that the service of the writ was, oo the part of the constable, incomplete. The Magistrates, however, properly conceived that in this, as in the former case, they could not dismiss the charge upon Lord Selkirk's own testimony; but differing,--as indeed well they might, — from the doctrine laid down by the Chief*Justice of the pro- vince, namely, that resistance to legal process was not a bailable offence, they were satisfied (and the Solicitor-General did not dispute the point,) with binding Lord Selkirk to appear at the next Assizes, in the trifling recognizance of fifty pounds, — and Mr. Allan, (also named in the warrant) in one to half of that amount. ,.. .; i .\ .. / ?■ !>..;* ,i i The only remaining point upon which the Magis- trates were called to act, was a charge which had been brougltl by Smith, the deputy sheriff, whose irregular conduct, in the interior, I noticed in my letter to your Lordship of the 21st of February last. At the Quarter Sessions which had recently concluded, Smith had charged Lord Selkirk, and several other gentlemen, with an assault and false imprisonment. In consequence of his information upon oath, a bill of indictment had of course been i V6 \ found by the Grand Jury. The Magiitratfi bound Lord Selkirk, in a trifling recognizance, to appear at the next Quarter Seiiioni, to answer thii charge ; and Mr. Allan, whoie name was alio included in the indictment, likewise gave bail for a similar appearance^"n<'.k):/'$ n: ..iriJUatU.;* ^i-iulja JnrjL J-i'ij. • Thus concluded the proceedings before the Magii* trates at Sandwich, in January 1818. — But as this Indictment at the Quarter Sessions is the only one which has been any where found against Lord Sel- kirk, it may be advisable to take this opportunity of noticing the proceedings which subsequently took place with regard to it. The circumstances relating to them will be found not unworthy of attention. From the pressure of other important business in Lower Canada, Lord Selkirk was prevented from re-appearing to answer this charge at the first Quarter Sessions, held at Sandwich. But suflSicient reasons having been given, the Magistrates consented that his recognizance should stand over till a subse- quent session. Mr. Allan, however, having returned with his witnesses at the time appointed, was tried and acquitted. > . ' ' - >^' > When Lord Selkirk went up to the Sandwich Assizes, held iu September last, he was accompanied by the necessary witnesses for his defence upon this indictment ; but no steps were taken by the Law Officers of the Grown to remove it from the Quarter Sessions to the Superior Court. At the conclusion of the assizes, it was communicated to Mr. Robin- son — who had succeeded Mr. Boulton in the office -.— k^ ^-— *iici^ 77 of A(torii('}-Q(MirruI — timt, an the r\%a ""as of A iiuture wliicli adniittid the dcfciidaiit appearing by utturiiey, Lord Selkirk should not thiak it requiiiitu to he present in person at the next Quarter Sessions, hut would leave an agent, properly authorised, to appear in his behalf. To this no objection was made by the Attorney.Generul, who merely remarked, that it would be necessary for Lord Selkirk to execute the power of attorney for that purpose in proj)er and legal form. The witnesses for the defence accordingly remained at Sandwich until the next Quarter Sessions. A short time, however, before the session opened, Mr. Elliot, one of the counsel ^or the North- West Com- pany, received the following Letter from the Attor- ney-General : ....... .T ifjl. I I (» « York, Srpt. 21, 1818." irk and Captain Sheriff*, and i" the part of '. It is irregu- ^ , , " Dear Sir, .v- >.; -, , " In the case, the King v. the Earl ** Mathcy, for die resistance to e ^J r " imprisoning him, I request yo i *c •.•>v " the Crown, that the indictint ; lift < u • • " lar in giving noadoition to th ^.i.i...8, autl in having a " blank for one of the names, and it is otherwise informal. " Should the Magistrates decline (which cannot be, as it is '* a matter of course to quash an indictment at tlie request " ot'tlic Crown) you will find undoubted authorities upon '' the subject in Chitty's Treatise upon Criminal Laws. *' The charge is a serious one, and it is necessary that the * This indictment was not for resiittance to the Deputy Slierili: M \ \ 1 78 " procfcidingi upon it should be such as not to defeat the ** ends of justice/' "I an), dear Sir, " Your's trulj, "John B. Robikson." \ " Will you also move, in my name, that the recognizan- ** cesof the Earl of Selkirk and Frederick Mathey, to answer ** to the charge, and also of the witnesses to prosecute, be '* renewed, to bind them io appear at the next Assizes for ** your District." Thus did the Attorney-General think fit to direct proceedings to be over-ruled, which he had a few days before officially and openly assented to, — namely, that Lord Selkirk should appear by attorney to the bill of indictment at the Quarter Sessions. If the case was such as to require removal from that Court, why had it not been removed to the late assizes, where Lord Selkirk was bound in recognizances to appear, and when he might have been tried' in per> son ? If, as stated in Mr. Robinson's letter, the ends of justice required that the indictment should be quashed, and the case brought up to a superior court, why was it not quashed before Mr. Allan had been tried upon that indictment in the inferior court, and acquitted P If, as the letter also stated, the charge was "a serious one," how came the Law Officers of the Crown not to discover this eight montlw before ? On the 1 4th of September, the Attorney-General sees nothing so serious in this 79 Ipng peiidinj^ charge^ as to make him withhold his official assent to its remaining before the Quarter Sessions^ or even to the person indicted being tried by attorney, in that court; but, on the SIst of the same month, he looks upon the matter in a different light, and authorises a lawyer, employed by the North- West Company, to make a motion, on behalf of the Crown, for its removal ! If the charge \%as a serious one, it must have been so from the first ; and it was the duty of the Law Officers of the Crown to have seen that an indictment, drawn for such a charge, should not have been, as the Attorney-General himself acknowledged, replete with flaws and irregularity. In consequence of the directions given by the Attorney-General, Mr. Elliot moved the Court, that the indictment should be quashed Lord Sel- kirk's counsel offered to waive all objections arising from the informalities, omissions, &c. in the indict- n>ent, and to rest merely on the merits of the case. The magistrates refused to quash it, or to renew the recognizances for the assizes, as moved for. The trial, however, did not go on, though Lord Sel- kirk's witnesses had travelled six hundred miles to give their evidence, I have not been informed what subsequent proceedings, if any, have taken place on the subject : but if the Law Officers of the Crown are to be thus permitted to avail themselves of their own blunders, in order to put oft* Crown prosecutions from session to session, and from circuit to circuit, it is not easy to foresee when those parties, whom 1 80 Government may think lit to accuse, will find an opportunity of obtaining their acquittal*. "-. '^ ■■•,'. After the proceedings before the Magistrates of Sandwich, in January 1818, were brought to a close, as already mentioned, Lord Selkirk set out for Lower Canada, and appeared in the Court of King's Bench at Montreal, in pursuance of recognizances exacted from him, in the course of the preceding summer, by Mr. Coltman the Commissioner of Special In- quiry, in his capacity of Magistrate for the Indian territory. The exaction of this bail was evidently irregular, and the irregularity was distinctly pointed out to Mr. Coltman at the time. To require bail from a person not in the Canadas, to appear at a court in Lower Canada, for an offence alleged to have been committed in Upper Canada, was beyond the legal authority of any magistrate. Mr. Colt- man, however, thought fit, when at Red River, to * From information rcceivej since the date of this letter, it appears that the Magistrates at Sandwich — differing from the Attorney-General, in the doctrine laid down by him, (in his letter to Mr. Elliot) that the indictment at the Sunrter Ses- sions must be quashed as a matter of course, and the parties be bound to appear at the next Assizes, — adjourned the case to the next Quarter Sessions in January, binding the parties to appear at that time. The principal witness for the defence, having been obliged to return to Montreal, came back again to Sand- wich — a journey of 1200 miles— to attend at these sessions. The prosecutors, however, did not appear; and the Magistrates at length took the regular means of putting an entire stop to this vcxaUous and unjust prosecution. 81 exact a recognizance from Lord Selkirk — himself in £6000, and two sureties in £3000 each — for his appearance at Montreal in the Lower Province, to answer for offences stated to have been committed at Fort William in the Upper. Several other gen- tlemen, who were with him at Red River, were also bound by Mr. Coltman in large recognizances, to the same effect. Lord Selkirk having accordingly presented himself before the Court of King's Bench at Montreal, in the term held in March last, Mr. Uniacke, the Attorney General, was obliged to admit that he could not legally institute any proceeding in Lower Canada upon these allegefi offences. One would have supposed that the irregularity of Mr. Coltman, in taking bail from the parties to appear in Lower Canada, having been thus officially admitted by the Attorney-General of that province, the Court would have had nothing farther to do on the subject than to discharge the recognizances so taken. This would have been the plain, equitable, and legal mode of proceeding. Sut a censure would have been ihereby conveyed upon the conduct of Mr. Coltman ; and, to avoid this, the Attorney-General adopted a step which deserved as much to be censured as that which had been pursued by the Commissioner himself. He moved the Court of Montreal to require a new reco- gnizance, and in the same amount, for Lord Selkii k's appearance, to answer the same charges before a Special Court of Oyer and Terminer, to be held in Upper Canada. This step he was induced to take — as he distinctly admitted to Lord Selkirk — in conse- , I 89 quence of the Dispatch from the Colonial Depart- ment^ of the llth of February. In vain did Lord Selkirk's counsel urge, that the Court at Montreal had no right to exact bail in this case,— that they could not issue any compulsory process beyond the limits of their own regular jurisdiction, — and that, even if the proposed exaction had been legal, it was, in this case, vexatious, oppressive, and unnecessary, inasmuch as the parties had already given bail to the magistrates in Upper Canada, who alone had a right to demand it, and who had been satisfied with recognizances amounting to three hundred and fifty pounds, in a case where Mr. Coltman had exacted six thousand ! The excessive amount of the bail could be of no consequence to Lord Selkirk in a pecuniary point of view, as he, of course, intended to appear at any court, which had a right to take cognizance of the charges against him. But the renewal of so large a recognizance, though wholly unnecessary for the ends of justice, served to s ippoj-t the credit of the Commissioner, atid to raise a false and injurious impression with respect to the magni- tude of alleged offences, and the weight of sup- posed evidence. It should not be passed over, that when the Judges of Montreal gave this order for the renewal of Mr. Coltman's bail, of the two who composed the Court upon that occasion, one was Mr. Justice lleid, who, but a few months before, had openly declared from the Bench, that, in consequence of his connec- tion with the North- West Company, he could not fake any share in judicial proceedings wherein they I-, ^ 83 «^ — ^* «.Jp^ were concerned ; and lie therefore, together with Mr. Justice Ogden, who alleged a similar scruple, rose and retired from the Bench. At the time appointed for the Assizes io be held at l^.ndwich in September last. Lord Selkirk, with Capta»i D'Orsonnens and Mr. Allan, again pro- ceeded to that place. The first business brought forward upon that occasion was a bill of indictment which the Attorney-General laid before the Grand Jiuy, charging Lord Selkirk, and several other gcn- tlei: en, with resistance to legal process in the case of the warrant issued bj Dr. Mitchell, and entrusted to Robinson, the constable. It wa^ this case which was so particularly pointed out by the dis- patch of the 1 1th of February. In support of this indictment, the Attorney-General produced several witnesses, but, after a shct deliberation, the bill was thrown out by the Grand Jury, and at length met the fate which it deserved. Although the Attorney-General of Upper Canada was thus foiled in his attempt to procure a true bill of indictmen\^, in the case so specially pressed upon him by the Colonial Department^ there still remained several other charges against Lord Selkirk, in which the Magistrates of Sandwich, in January last, had bound him in recognizances, and upon whi^h, as he had now brought with him his witnesses from Mon- treal, he was ready to take his trial. Thcbe charges, however, being of a specific and definite nature, the issue, if brought to trial, would have rested upon a simple point of fact. The Attorney-General did not think fit to bring them forward, conceiving that ''I \ 84 it would be more prudent to confine himself to some more general and indefinite specie:^ of accusation. He therefore preferred a bill before the Grand Jury against Lord Selkiik, and some others, for a conspi- racy, to injure or destroy the trade of the North- West Company. To support this charge he pro- duced about forty witnesses. These were almost all clerks and servants of that Company ; and the Attor- ney-General made the modest proposal, that one of their masters, Mr. Simon M'Gillivray, (a principal partner and agent of the very Company, for injuring whose trade this charge of conspiracy was preferred, and who at the time stood indicted under a true bill found for a conspiracy to destroy the Red River Set- tlement,) should be admitted into the private room of the Grand Jury, for the purpose of examining these witnesses. This proposal, as might have been expected, was pereniptorily reject^-d ; upon which Mr. Robinson claimed the right himself of attending the Grand Jury, and conducting the examination of the evidence. This he maintained was a privilege to which he was entitled as a Law Officer of the Crown, and that it was his duty, upon the present occasion, to insist upon it, on account of the great extent and complication of the testimony, which could not^ as he said, be made intelligible to the Grand Jury, unless properl_y mar- shalled. The legality of this claim, on the part of the Attorney-General, was certainly most ques- tionable, — the exercise of it in this country is quite unknown, — and the injustice of it obvious and glaring. It is evident that such a privilege would «1 85 directly counteract every benefit which the constitu- tion of Grand Juries was intended^ by the Law of England^ to secure. But if there had even existed the slightest doubt on the subject, or if it was at all left to the option of the Attorney-General, to insist upon it or not^ every common feeling of delicacy, and every sentiment by which an honourable man is gene- rally actuated, ought to have prevented him, in the case in question, from urging the claim. As Pub- lic Prosecutor, he had mustered in support of his Bill a sufficient force, — in numbers at least sufficient, — to go before the Grand Jury, and, adhering to the usual and recognised practice of the Law of Eng- land, he ought to have left it to that Jury to inves- tigate the evidence so laid before them. In deviating from such practice, he was giving himself an oppor- tunity — for what other object could he have in view, —of putting such leading questions to his witnesses, as might give a colour to their ex parte evidence which it could not in justice bear, and thereby tend to induce the Grand Jury to find a Bill, where they otherwise would not. And on this subject I have no hesitation in stating to your Lordship, that it is generally believed in Canada, that the Attorney- General, who, in his public character, thus insisted upon so unusual, and, I will add, so illegal a claim, in order to obtain a true bill against Lord Selkirk and others, for a conspiracy to desti\iy the trade of the North-West Company, had actually received a retainer from that Company, as one of their profes- sional Counsel. It must be left to jour Lordship, as Secretary of State for the Colonies, to judge whether N '.«"'.-, 86 an official inquirer should not be directed for the purpoeic of ascertaining the truth of the allegation. Illegal however as the claim was^ the Grand Jury, trusting to the Attorney-General's statement of the law upon the subject, were induced to acquiesce in it. , With respect to the Grand Jury, it may be men- tioned, that Lord Selkirk made objections to two indi- viduals being continued upon it. One of these wai an agent of the North- West Company, and the other« (his brother,) was also employed in the Company's afiairs. It is not easy to imagine a much stronger case of unfitness than that of an agent, employed an«i paid by a trading company, being called upon to de« cide as a juror upon a charge of conspiracy to injure that Company's trade. But Chief- Justice Powell thought — or at least decided — otherwise. He declared that the connection of these jurors with the North- West Company, was not sufficient to exclude them from continuing on the Grand Jury ; adding, that if these two gentlemen felt any bias, or partiality, they would, as men of honour, retire of tlieir own accord. It is perhaps unnecessary to add, that the two gentlemen remained upon the Grand Jury throughout the whole of the proceedings. Among the witnesses brought before the Grand Jury by the Attorney-General in support of his bill, was M'Tavish, the same person, who, together with Vandersluys, had made the celebrated affidavit that Lord Selkirk had feloniously stolen the eight; three fusils belonging to the North- West Company. This charge, it may be recollected, had been disr I fif-'i . iniised bj the Mag^itrates, (who had the proper co* gnizance of it), on the ground that no reliance was to be placed on the testimony brought to support it. Lord Selkirk had determined to prosecute these men for perjury. The necessary information upon oath was accordingly put into the hands of the Attorney- General for that purpose, and he was officially required to prepare the bill of indictment. This he refused to do, and produced before a Grand Jury as a credible witness, the man whom it was his duty to have indicted for perjury*. • The Attorney- General (Mr. Robinson) was required to pro- secute Vanderluys and M'Tavieh, for wilful and corrupt perjury, upon the affidavit of Mr. Allan, who declared upon oath that they had deliberately read the search-warrant which Lord Sel- kirk, as a magistrate, had - sued for the purpose of dicovering, and securing, the eighty-three fusiU which these m«n subse- •equently swore Lord Selkirk (with several other gentlemen), had feloniously stolen, and carried away. The Altorney-Ge- ..^ral said he would attend to this requsition, but that, being i k^ructed to prosecute Lord Selkirk for this alleged felony, upon the evidence of these two men, that charge must be first disposed of. A few days afterwards, however, the Attorney-General in- formed Mr. Allan, that he did not intend either tu proceed gainst Lord Selkirk (and the other gentlemen), for the felony, o«* to prosecute M'Tiivish (who was then upon the spot), for the perjury, — saying, that he, as well as Vandersluyj, had not com- mitted wilful and corrupt perjury, but that, in making their af^davit, they \\m\ merely fallen into a mistake as to the law upon the subject. . In coiisequeiioc of this decision, — which appeared to the pro- secutors nothing less than an evasion on the part of the Attor- ne3^G^>i^^ral,— and ai the Crown La vyers in Canada bad come !« 88 The Aiiortiey-Getieral took three days to marshal and examine his witnesses before the Grand Jurj, vfho continued in f/^her deliberation for two days more, in the couiae of which they again called io several of the witnesses who had already been exa- mined. From questions put to the Court by their foreman, it appeared that they were much perplexed with doubts, arising from the vague and indefinite nature of the law relating to conspiracy. The ex- planations given to th.^m by Chief- Justice Powell were not very likely to enlighten them, and the week ended before the Grand Jury decided upon the bill. The Court again met on the ensuing Monday, and 6f seventeen jurors who had regularly taken a part in the discussions, fifteen were that morning assembled in the Grand Jury room. They appeared to be looking out with impatience for the arrival of the other two, in order to bring the business to a termination, when the Chief-Justice unexpectedly addressed the to the extraordinary determination not to allow any criminal charge to be conducted by private prosecutors, — no bill of in- dictment was preferred against Vandersluys and M'Tavish for perjury. But the prosecutors being convinced that there was suf.< iicient evidence to estabhsh the guilt of the parties, handed Mr. Allan's affidavit (together with a list of witnesses who were theu present, and able to support the charge), to the Grand Jury, in order that, if they saw fit, the matter might be brought for- ward by way of Presentment. Before the Grand Jury, however, had an opportunity of entering upon the inquiry, their proceed- ings and fiuictions were suddenly put a stop to by Chief-Justice Powell, in theextraordinary manner noticed in page 4 3 i ) »» fiA a so Bar, coDf*'sting of the Attorney-Geoeral ind two other law^'erji. He began by making lome acrimo- nious observations upon the conduct of the Grand Jury, whoj be suid^ bad acted with great impropriety, in kecpiug the Court waiting for several days, during which period no business had been brought before it ; ard then, — without sending for the Grand Jury, ' were sitting in the adjoining ro^'n -c. asking > eiplanation, — or even making inquj | whether bad any presentment to make, — he declared the \,ourt to be adjourned tine die, and immediately left the Bench. The proceedings of the Grand Jury were thus unexpectedly brought to a stop, and the session abruptly terminated. The Chief-Justice himself had appointed these Assizes at Sandwich to be held, contrary to the usual custom, the last of that circuit; and he expressly stated, as bis reason for so doing, that the business at that place was likely to take up much time, and ought not to be broken off by other judicial engagements. When the court rose on the preceding Saturday, he made no animadversions on the length of time which had been occupied by the Grand Jury, (more than half of which had been taken up by the Attorney-General, in examining his witnesses), nor did he then express any objection to the adjournment of the court till Monday. But before it was resumed, he no doubt suspected that very little chance remained of a true bill being returned against Lord Selkirk and his friends ; and the Chief-Justice thus ingeniously stepped in, to ^> IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 11.25 teaizB |2.5 us IM 1.4 2.0 1.6 I ;5a ,, V] Photographic Sciences Coiporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 4* ■'4 •hield ihe Attorntfj-Geiierai flrom the iooftififtetiott' of having another of his bills thrown out^ after tho uncommon pains, and unlawful means, he had taken to have the indictment found by the Grand Jury. ^'^-^ . The second class of criminal prosecu^ons which I have to notice, is of those instituted against partners, clerks, and other persons in the employment of the North- West Company ; under which head it will be seen, that the Law Officers of the Crown in Canada have taken the most unjustifiable means to harass the prosecutors, and to render the prosecutions inefiectual. In spite, however, c* their endeavours to stifle all criminal proceedings attempted against persons connected with the North-West Company, numerous bills of indictment have been found against them by various Grand Juries in Canada. In the Criminal Term of the Court of King's Bench, held at Montreal in March 1817, four bills of indictment were found agamst two partners, and several other persons in the employment of the North- West Company. These were for stealing in dwelling-houses, for maliciously shooting at the Red River settlers, and for burning the houses at the Settlement in the year 1815. A true bill was also found, in the same term, against Archibald M'Lel- Un, a partner, Charles de Reinhard, Cuthbert f^ c*» -' ?>* 91 Grants and JoMph Cadotte« clerki of- that Com*' paoj, for the murder of Mr. Owen Kevenej, a clerk of the Hudaon's Bay Company, who was pro- ceeding down the river Winnipic with some young breeding cattle for the uie of the Settlement at Red River^ in the year 1816. The Grand Jury, summoned under a commission of Oyer and Terminer, held at Montreal in the months of February and May 1818, also found thir- teen bills of indictment against persons belonging to the North-West Company ; of which the following is a general abstract : — ^\ -rv*, ^Kri^ff -)?" j/^ -./.^v. For Murder, — Bills were found against thirteen partners, and twenty-five clerks and servants of the North-West Company. Vv^Hs *^?: , y^t^iO » For Roliberies, Burglaries, Grand Larcenies, and stealing in Boats on a navigable River, '^'BWls were found against ten partners, and about fifty clerks and servants of that Company. « ^^ ' '-*' For Arson, — Bills were found against one partner, and twelve clerks and servants of that Company. Most of these indictmeiits related to crimes con- nected with the successive attacks upon the Red River Settlement, and the consequent dispersion of the settlers, in the years 1815 and 1816. A bill of indictment for a conspiracy to destroy the Settlement was also found against Mr. William M'Gillivray, the chief partner of the North- West Company, against Mr. Simon M'Gillivray, one of their princi- ttmmi m pal Lokidon agents, and a^init forty other pftrt<^ nen, clerki, and adherents of that Gompany. Among the partners included in this indictment, it deserves to be noticed, that several of them acted at the time as Magistrates for the Indian territory, under an Act of Parliament brought in upon the suggestion of the London agents of the Company. In the letter which they addressed to your Lordship*!s Department, on the 18th of March, 1815, and which they afterwards published, they take no little credit for having suggested this Act of Parliament; men- tioning, at the same time, that several justices of the peace had been appointed under it, who, " they " hoped, would be enabled to suppress, by appre- ^' hension and conviction in the Courts of Lower " Canada, all acts of agression on either side." — They forgot, however, to add, that the justices so ap- pointed, were all^ne side, being no other than part- ners of the North*West Company; and how far they have exerted themselves, und'^ commission of the peace, to suppress acts of a^^ .mission, may be judged of by the bill of indictment which has been found against the most active of these Magistrates, for a conspiracy to destroy the Red River Settlement. ^ In deliberating upon this bill, the Grand Jury were occupied for three days ; but although the evi- dence produced to them was very extensive, they did not require an Attorney-General, or any professional assistance, to marshal and examine the witnesses. The Jury felt themselves fully competent to that duty; and, indeed, most of the acts charged to have 93 v^^. been committed in furtherance of the conspiracy, \i'ere felonies^ upon which the Grand Jurj bad already found true bills. This bill of indictment VTM found by the Grand Jury without a single dis^ sentient Toice. At the close of the Court of Oyer and Terminer, it was publicly declared by scTcral of the jurors, that, in the whole course of their deli- berations, not only upon this bill, but on all those found by them during the session, they had, upon no occasion, been under the necessity of deciding any question by a majority of votes. .One. of the cases which deserves particular notice^ as falling under this class of criminal prosecutions, is that of George Campbell. This man had been one of the first of the settlers who had entered into con- tract with Lord Selkirk, under whom he held a farm at Red River. His conduct in deserting from the Settlement, and promoting, by every means in his j^ower, the plans set on foot by the North-West Company for its destruction, is fully detailed in the printed Statement I had the honour of transmitting to your Lordship io the month of July 1817. After robbing the Settlement of the field-pieces and some other arms procured for its security, Campbell headed a party of his new confederates, and attacked the settlers with fire-arms. In these attacks several of the colonists were severely wounded, and one of them died of his wounds. After succeeding in driving otr the settlers, he burned their houses to the ground. For these felonious services to the North-West Company, Campbell received from the partnership, besides other perquisites, a remuneration of JCIOO. / I f ■\ Four bills of indictment were found against Campbell, by the Grand Jury at Montreal, in March 1817. Of these, one was for the robbery of the field-pieces, &c. — one for arson, — and two fur ma- liciously shooting at the settlers. In these indict- ments, two of the partners and several of the clerks of the North- West Company, were included. Lord Selkirk had succeeded in getting Campbell appre- hended, and the witnesses for the prosecution Were assembled at Montreal, in the Criminal Term held in the month of September, when the trials upon these indictments ought to have taken place. But the Attorney-General stated, that, by an order of the Governor-in-Chief, issued by the advice of the Exe- cutive Council at Quebec, these trials were to be removed to Upper Canada. No opportunity was afforded to the parties by whom the charges had been brought forward, to urge those objections which could not but obviously occur against the measures thus adopted by the Provincial Govern- ment. The witnesses had been kept at Montreal, at a great expense, for the expected trials ; and it was evident that the removal of these trials to a distant province, and the postponement of them to an inde- finite period, was inconsistent with every principle of common justice. Besides, as it was found requisite, in consequence of such removals, that fresh bills of indictment should be preferred in Upper Canada against the same persons, and upon the same charges, it was evidently rendering totally useless and nuga- tory all the proceedings of a Grand Jury in the Lower Province, by whom, upon evidence legally •-t-^ •=- -E ■■ . * 93 brought befure them, true bills bad 1)«eo, Iqho4 against tlie parties for capital ofieoces. ' Although the supporters of Campbell had evi- dently gained a considerable point in having bii trial, among others, thus transferred to Upper Ca- Dada^ >et they thought it would be still more prudent to prevent him, if possible, from being tried at all. The ingenious plan which they adopted for this pur- pose, deserves to be pot iced. In the month of May last, about the time when it was proposed that Campbell and the other prisoners should be removed from the gaol in Montreal, and sent to Upper Canada, it was discovered that Camp* bell was no where to be found. Upon inquiry it appeared, that Dr. Selby, a physician of Montreal> had visited Campbell in prison about a week before^ and stated, that the prisoner was in a high fever and dysentery, and that his life was iv imminent danger. The regular medical attendant of the prison wa^ never consulted on the subject; nor did he know that the prisoner had been ill. Upon the report of Dr. Selby, however, Mr. Reid and Mr. Ogden, (the two puisne Judges who had, not long before, de- clared in open court they would not act in any matter in which their connections with the North- West Company were interested,) repaired to the pri- sooj and signed a warrant, or order of discharge to the gaoler for Campbell's liberation. The sick pri- spner was accordingly carried out to the hospital in proper form, wrapped up in a blanket. No direc- tions were given to have him more closely watched II 'i i I ■ "'^''''^.•M~--M 96 than any of the common hospital patients. Within fortj-eight hours from the time of his remoyal, he asked permission of his sick-nurse to go and visit his vrife and children. She forbade him to go out merely on account of the badness of the weather. The dying culprit, however, took an opportunity of walking out unobserved, and, as might be expected, hiade his escape. He is now resident near Detroit, within the territories of the United States. Dr. Selby, who officiated as physician to the hospital, and on whose report Campbell had been removed from the prison, was soon apprised by the Garde-Malade, that the sick man had gone out :— *" Ce n'est pas " bon," said the Doctor to the Garde-Malade ; and, jealous, probably, that the Sheriff might recover his patient, he made no further remark, and gave no in- formation on the subject ; nor was Campbell's escape known till several days afterwards. — A prisoner under commitment on charges similar to those for which Campbell was in custody, could not be regu- larly discharged, except by writ of Habeas Corpus, and although the Chief-Justice was at his country seat, only two or three miles from Montreal, this measure was not resorted to. After Campbell's escape, however, a writ of Habeas Corpus, bearing date before his discharge, and signed by the Chief- Justice, was brought by a lawyer employed by the North- West Company, and presented to the gaoler, with a request, (which, however, he refused to accede to,) that he would give up the order of discharge which had been granted by Judges Reid and Ogden, and antedate his own return to the writ of Habeas Corpus! — Such is the mode in which justice ii ad« ministered in Canada. .«; rT^li^ 1;.:=.: "!' 'ji;:!/ ' An escape of a different, but not less improper description, was also permitted in the case of Cuth- bert Grant, (one of the half-breed clerks of the North- West Company,) whose atrocious proceedings in the interior were likewise fully noticed in the printed Statement transmitted to your Lordship in July 1817. Several bills of indictment for capital of- fences had been found against Grant, at Montreal. He was indicted, along with Campbell, for malici- ously shooting, and for burning the houses of the settlers, in 1815. Bills had also been found against him for capital offences committed at a later date. Two were found against him for murder, and two for robberies committed in furtherance of the conspiracy against the Red River Settlement, in which indictment (for conspiracy) he was also included. Although Grant was in prison at the time these bills were found against him, the Attorney- General of Lower Canada thought fit soon afterwards to admit him to bail un- der a trifling recognizance. I^rd Selkirk addressed a letter to the Attorney- General, pointing out the impropriety of allowing a person against whom bills of indictment had been found for murder, and other capital crimes, to be thus at large, and requested that his person might be secured, so that he might be sent to Upper Canada, to which place his trials had been removed. Though Grant was known at this time to be in Quebec, the Attorney -General took no notice of this ap- }\ •'-•^-^''^•iifthit plicalioo till after a coniiderable interval of time, during which Grant made his eicape from the pro- vince. This noted ruffian, over whose head are now depending now less than thirteen bills of indictment found against bim for capital felonies, has been con- veyed back, in the canoes of the North-West Com- panj, to the Red River, renewing his vows of ven- geance against the Settlement, and exhibiting to the persecuted settlers, as well as to the native Indians, a glaring and melancholy proof that the most sangui- nary atrocities are to be permitted to pass with total impunity. Several other persons, the accomplices of Camp- bell and Grant, have in like manner, in consequence of being improperly admitted to bail, been allowed to make their escape, .z Of these, Peter Pangman, another half-breed in the service of the North- West Company, was one of the must active of the persons who were employed in the attacks upon the Settlement in the year 1815. He was included with Campbell in the indictments found for robbery and arson. He was admitted to bail with the consent of Mr. Pyke, who was autho- riied by the Attorney.General of Lower Canada to act in bin name on behalf of the Crown. The ap- plication to admit Pangman to bail was not com- municated to the Prosecutor's Counsel till the day before the matter was taken into consideration by the Chief-Justice, and Mr. Pyke refused to shew to them the affidavits upon which the applica- tion was grounded. Objections were made by the Counsel to the admission of bail, not only I * .<-#. - M n /'>« '^"f*''''***^^' HH*i'*1'f'^ H*rt'« ^^*> Url ' The trial of £k Rein hard and M'ljcllan, accord- itigly canie tin at Quebec, under the exclusive ma- rtagement of the CroWrt Lawyers. A new bill of in- dictment having' been found against them by the Ofand Jury at that place, the prisoners viere ar- raigned and tried together. Being asked wheri they would be prepared for their trial, they named the day previous to the close of the term. The trial ac- cordingly came on upon that day, and was coii- 'ducted in such a manner, that only two or three Of the priticipal witnesses for the prosecution had been examined during two days, when, by the close of the term, the kgal powers of the Court were at an end, and the trial was unavoidably broken off. It was the duty of the Law Officers of theCroVvri to have prevented this extraordinary occurrence. Tlvsy ought to have foreseen that the evidence to be brought for- ward was such as to make it very ini probable that the trial could be concluded before the close of term, and it was therefore their duty at once to have applied for a special Court of Oyer and Terminer to try the prisoners. If, on the other hand, the At- torney and Solicitor-General did not foresee that the evidence would be protracted to so great a length, it was a clear proof that they were totally ignorant of the nature of the case, and, of course, incompetent to the task of properly conducting it. - j A special Commission of Oyer and Terminer was * Stc Appcndik, [ii.] i ICMf now issued for the purpose of resuming the trials — but not until after an interval of several weeks, during which the prisoners had ample opportunity afforded them to tutor their witnesses, and suborn such testi- mony as would best tend to counteract the effect of the evidence already produced against them. The evidence which appeared against M'Lellan was such as to give a very strong impression of his 'guilt. Notwithstanding this, after the trial was broken off in the manner above-mentioned, the At- . torney and Solicitor-General agreed to the extraordi- ' nary step of admitting the prisoner to bail. A Grand Jury at Montreal, and another at Quebec, ''had found two bills of indictment against him as an accessory before the fact to this murder; a procla- vmation had been issued by the Governor-General of Canada, offering a reward for his apprehension;-— yet, after his trial had commenced, the Law Offi- cers of the Grown consented that he should be set at Jarge upon bail. A similar application had been made at Montreal by the counsel for M'Lellan, but was refused by the Court. No bail was allowed at Quebec in the case of his accomplice De Reinhard ; .but it would appear that the Law Officers of the ; Crown had come to the determination of letting the whole weight of the prosecution fall upon De Rein- hard, an unprotected foreigner, for the purpose of screening M' Lei Ian, a partner of tlie North-West Company. '^ .^ ' When the trials were again brought forward, the prisoners were tried separately. That of De Rein- hard came on Hrst, and lasted eight days. He was I; -^ 1 .^iuAkiA&Vi^ «ik!:~s^ .s L.-; ' -WWW**(«|fe^^-> 105 convicted of the murder. M'Lci!an'i triil then came on, and continued also several days. The con* duct of the Crown Lawyers, throughout the whole of the trials was such as fully to verify the appre- hensions expressed by Lord Selkirk, in his letter to the Governor-in-Chief, of the 30th of March, and M'Lelian-^as might be expected — was acquittedvd^ ' The proceedings which took place at Quebec, in consequence of the Attorney-General having . re- moved the trials from Montreal, being thus con- cluded, it will be necessary for me to point out to your Lordship the other prosecutions which, as in the case of Campbell, were directed to be transferred to the Courts in Upper Canada. This transfer in- cluded all the prosecutions instituted again^ the North" West Company prior to the month of Sep- tember 1817. Their removal was determined upon, as I have already observed, without any communica- tion to the prosecutors of such intention, or any permission given to them to state the numerous ob- jections which obviously presented themselves against the measure. The nature of these objections will be best seen by a reference to Lord Selkirk's letter to the Governor of Canada, of the 11 th of March, 1818, a copy of which is herewith enclosed, to which I particularly request your Lordship's at- tention*. -,'1 ;■ - -....1- .-^ . i-./.=^f ^cV.i,U-:-i^::^"i.i\ iiii>i\ ; Although the order for the transfer of these trials. 4 * See Appendix, [M.] • ',^t?^^^.'» '•^^ 106 liroiti ! M#nl^l ta Upptr Canada^ took place in ^ptember 1817 ; yet, at the ^itnMses for the pro^ Mciition of these cases were re4uii«d ih the various prcceedin^s and examinations at Montreal and Que^ tec; fi mm impossible for them to attend in the Upper Province till after the end of May 1818, 5vheti theitriaisat Quebee were concluded. The Attor- nej-General of Upper Canada, having stated that it •was probable a Special Court of Oyeir and Terminer would be granted for these prosecutions, in the moath of July, Lord Selkirk proceeded to York, with a number of witnesses required in the expected iriala. On his arrival there, he was informed bjr the Attornej-Oeneral, that, in consequence of k promise made in the preceding month of April, by the President administering the Government of Upper Canada, to the accused parties of the North- Wesit Company, none of these cases would be brought to trial till the month of October. Lord Selkirk was thus placed under the further necessity of detaining his witnesses at a great expense, some of whom had been brought from the interior as far back as the year 1816 ; and it should also be no- ticed, that the Attorney-General of Upper Canada^ acting upon the same unjustifiable principle as the Law Officers of the Crown in the Lower Province, took into his hands the exclusive management of these prosecutions, and announced to Lord Selkirk, that, upon the trials, the counsel for the prosecutor could not be permitted to assist in the examination, or cross-examination, of the witnesses. t~™.. 107, Throughout the whole of thi? veratioui poitpoae* meiit of trials, — unnecessary transfer of prosecutions, — and arbitrary selting-aside of indictments, which had been regularly found by Grand Juries^ — it is but too obvious, tliat the Law Officers of the Crown in Canada had some very different object in view than to promote tlie ends of justice. It is also important to. remark, that, in their endeavours to retard or obstruct the prosecutions in question, they appear, in several important instances, to have been throvvn into no little embarrassment and dilemma, h il ^ mn In tlie first place, they seem to have been much puzzled to find out the meaning of the Canada Juris* diction Act. It was only by this Act (43 Geo. IIL c. 138,) that any authoi'ity was given to try, in the Courts of Lower Canada, offences committed in the Indian countries, or to permit such trials to be removed from the Lower to the Upper Province. With respect to the mode of effecting such removals, in the cases already alluded to, the opinions of the Law Officers of the Crown in Upper and Lower Canada, proved to be diametrically opposite. The Attorney-General of the latter province asserted, that it was not necessary for new bills of indictment to be found in Upper Canada, in order to have the pri- soners tried there ; but that it was sufiirient to send up the bills already found in the Lower Province, annexing them to certain instruments under the Great Seal, (of the latter province,) as required by the Act. The Attorney-General of the Upper Province declared this not to be law, and that it %^ ■ r^8 WM lyecessary to have fresh indictments preferred againit theni^ and that all the proceedingi should begin de tiovo. The next difficulty that perplexed them was how to send the prisoners to Upper Canada for trial. The AttorncDr<>General of Lower Canada thought they had only to put them in charge of a constable^ and send them off from Montreal in the one province, to ^York in the other. This the Attorney-General of Upper Canada maintained could not be legally done ; and that the prisoners^ if so removed, might, as soon as they passed the boundary line, obtain their libera- tion, by a writ of Habeas Corpus, issued by Chief- Justice Powell, unless bills of indictment had pre- viously been found against them, by a Grand Jury of theUpper Province, and process issued in consequence. Under this mode of proceeding, however, even supposing it to be legal, it was evident that the prisoners could not be tried in the same session in which the indictments were found ; and that the witnesses sent to York, in support of the bills pre- ferred before the Grand Jury,, must either be de- tained there many months, or, if they returned to Montreal, have to make a second journey of several hundred miles to attend the trials at York. To obviate this delay and inconvenience, it was sug- gested by the prosecutor's counsel, that a warrant from the Governor-in-Cbief to remove the prisoners^ accompanied by affidavits exhibiting the grounds of detention, would be a sufficient authority to hold them in custody, in either province, until further '■i |, i .jt aW P * '.? '^ iii iiW l ll iii l<^fr. <»>i- .' .^;*.l 109 proceedings should be instituted against them in' Upper Canada. To this measure — which had neither occurred to the one Attorney-Greneral, nor to the other — they both assented ; and the prisoners (that is to say, the only two vrhb remained in custody, of about ten or twelve who had been apprehended) were accordingly removed^ by such warrant, from Mon- treal in the Lower Province, to York in the Upper. ^'Although the Law Officers of the Crown, in both' provinces, had thus, for once, agreed with each other upon a point arising from the Act of Parlia- ment, the Chief-Justice (Powell) seemed disposed to differ from them both. When the prisoners arrived at York, he expressed his opinion, that, as no bills of indictment had been found against them in the province, they would be entitled to be liberated by writ of Habeas Corpus ; and this liberation would, perhaps, have taken place, had not the two puisne Judges concurred in the opinion entertained by the Crown Lawyers : — in consequence of which the prisoners remained in custody. -h*^tr-■■H^ ' But the most important point of difference between the Law Officers of the Crown still remained. This related particularly to the removal of the trials from the one province to the other. Several of the instru- ments required by the Act of Parliament for such removals, had been drawn up under the directions of the Attorney-General of Lower Canada, in such a manner as to remove to Upper Canada the trials of certain persons, " for all offences hitherto committed "by them in the Indian territories." The Judges of Upper Canada expressed their opinion, that a transfer I \ ■ no in these general terms was not such as the Act of Parliament authorised ; and that they could not take cognizance of any offence, which was not specifically described in the instruments directed by the Act.-^ This objection Lord Selkirk immediately commu- nicated to (he Attorney-General of Lower Canada, and pointed out the necessity of remedying the defect without delay, by the transmission to the Uppev Province of instruments of a more specific descrip- tion, as, otherwise, many of the cases referred thither for trial, would not be tried at all. Whether the Attorney-General of Lower Canada persisted in maintaining his opinion, in opposition to that ex- pressed by the Court at York — or whether he thought fit to pay no further attention to the subject — does not appear. The objection had been communicated to him in the month of August ; yet, at the meet- ing of the Court at York, about the end of October, he had not adopted the necessary steps to prevent the evil which was apprehended.-^What wa» anti- cipated has, in fact, taken place. The Court in Upper Canada has declared, that it cannot take co- gnizance of any charge against persons whose cases have been remitted to them in that general mode ; and the Court in Lower Canada has decided, that it cannot try the offences of any person, with respect to whom a reference to Upper Canada has been directed. Among the prosecutions thus stifled is that for the conspiracy to destroy the Red River Settlement — a charge upon which the Grand Jury at Montreal bad found a true bill against forty-three partners, clerks, and servants of the North-West Company, The ^-. '-« i -: ' '-.^ ^^ .*...-» virtu :» . _:. . *. •. ilL'w:* » f- , cfc*.^ ' - , i '"■ - ■ The last class of prosecutions to which I have now to draw your Lordship's attention, is of those brought at the instance of the North-West Com- pany against persons belonging to, or employed at, the Red River Settlement. The conduct of the * A few of the cases referred from Lower to Upper Canada (where the instruments of transfer happened to be in the form approved of by the judges of the latter province) were brought to trial at the assizes at York in the months of October and No- vember last, but no distinct intelligence on the subject had been received in this country when this letter was transmitted to the Colonial Department. It appears, however, that the proceed- ings in these trials have been, if possible, even more extraordi- nary than those which took place in Lower Canada. Independent of various other unjustifiable circumstances, the Law Officers of the Crown (in the Upper Province) adhered to their determi- nation of assuming to themselves the exclusive management of these prosecutions, and would not permit the counsel for the private prosecutors to cross-examine the witnesses. i'-M I ' ^' 1 Hid Law OiKcers of the CrowD^ And of the Courts in Canada, ivilh reference to this class, will be found to have been no less irregular and unjust, than that which they pursued in the cases of criminal prose- cution, which have been already adverted to. They shewed now as much anxiety to harass and oppress the innocent, as they did before to screen and shelter the guilty. Upon this subject, it will be necessary to rccal some of the earlier circumstances of these prosecutions to your Lordship's recollection. ' ^'"^^ Mr. Miles Macdonell, who had the charge of the Red River Settlement in the year 1813, and who also held the appointment, from the Hudson's Bay Company, of Governor Of the District in which the Settlement was situated, was apprehensive that the settlers were likely, in the course of the following season, to be reduced to serious distress from want of provisions. It was ascertained that the utmost amount of the crop which could be raised by the uew settlers that year, would not be adequate to their wants, and that they must therefore still depend in a great measure upon the natural resources of the coun- try. Of these the North- West Company were mali- ciously endeavouring to deprive them, both by inter- rupting the hunters employed by the Settlement, and by buying up all the provisions they could procure from the native Indians, and to a much larger amount than what was requisite for the purposes of their own trade. Mr. Macdonell, being fully aware of their objectj thought himself authorised, as Governor of the district, to prohibit the exportation of the provi- sions so collected. He accordingly issued a procla- mation in the beginning of January 1814, limiting V - • V... «^ v.- 113 thii export to a quantity lufficient for the tupply of the traders during their route to the respective placet of their destination, and stipulating to purchase the lurplui at the accustomed prices of the country. — No attention was paid to this prohibition on the part t>f the North- West Company, who openly declared their intention of carrying out the provisions in defiance of the proclamation. Mr. Macdonell, in consequence, granted a warrant to Mr. Spencer, who held the office of Sheriff for the district (under the authority of the Hudson's Bay Company's Charter) to seize the provisions which had been embarked for exportation ; which was accordingly effected. Several partners of the North- West Company had, by this time, assen^bled at Red Riyer, and, after some ineffectual attempts to intimidate Mr. Macdonell, thej proposed a compromise, agreeing, in the mean time, to submit to his authority as Governor of the district, but declaring that they would appeal to some higher tribunal, to ascertain the legality of the powers which he thus claimed. They then stated that it would be ruinous to their trade, if they were not allowed to export more than the quantity of pro visions specified in the proclamation. Upon this, Mr. Macdonell agreed to allow them to export a larger quantity than that so limited, and the North West Company on the other hand, stipulated, that in return for this accommodation, they would, in the course of the ensuing autumn and winter, procure and import into the district a quantity of provisions equal to the surplus which they were thus allowed to carry out. For the provisions thus to be imported. ■^^ih***^'' ;-"--*ST-,'.-S^V^-iVi!r. - 114 ts well m for that M'hich had been detained, it wai vi:arl^ under 8tood that Mr. Macdonell wai to paj in the manner specified in the proclamation, .^i ^ The eoHuing general meeting of the North-We!vt Comp^uy at Fort William refused to sanction this com- promise of their partners, and, instead of appealing to the King in Council, and calling in question, before a proper tribunal, the legality of the powers claimed by Mr. Macdonell, under the Hudson's Bay Com- pany's Charter, they employed Mr. Archibald Norman M'Leod, one of their partners, a justice of the penrc for the Indian territory, to issue a warrant for the ap- prehension of Mr. Macdonell and Mr. Spencer* both of whom, in order to avoid disturbance, but pro- testing against the jurisdiction, surrendered to the arrests. Whether Mr. Macdonell's conduct in this business was proper or not, jr whether, as a Governor regu- larly appointed uiider a Royal Charter, he was legally justified in adopting the step he took for the purpose of saving the inhabitants of the district, over which he was placed, from the probability of being starved, I shall not say ; but although the North-West Com- pany prosecuted him for the alleged offence, for upwards of three years successively., (and which pro- secutions he was always ready and vn^M^js to meet ^ they have never been able, in ny ha| <., either by civil or criminal process, to establish its illegality. Mr. Spencer was arrested in September 1814, and in place of being convieyed down to Canada, he was detak jd at a trading post of the North-West Com- par»y till thi;; following summer* nor was he brought '■-'"i-^* ^fW*j*rtJ(h*,;!«*-.if^ - ' **^ ^ tA'-i-'Mir^-'*' .'_;ZE5i'"^'^'»«5R^*i >. 5* 115 down to Montreal till he hid been about twelft montl.s in the prifate custody of that Company. Mr. Macd< nell surrendered himself in the mor*h of June 1815, and vvai conveyed to Fort >Villiam, where he w is detained till the end of the season. While at Fort Willian), and during his rout< he was kept in rigorous conBnement, and was not brought down to Montreal till after the close of the Criminal Court, held at that place in September The agent of the North-West Company, who brought him down, had, on his arrival, the effro icry to tell him, that he never was his prisoner, and that be had only accommodated him with a passage (about two thousand miles) in his canoe. It was evident, that, having got Mr. Macdonell out of the country, where his presence mi«:ht have assisted in the defence of the settlers, the North- West Company were very willing to drop all further proceedings; but finding that Mr. Macdonell was not at all dis- posed to suffer the matter to rest where it was^ they got their partner, Mr. Norman M Leod, to issue a new warrant against him. It deserves here to be particularly noticed, that it was not till this period that the North-West Company thought of making the seizure of their provisions the ground of a war- rant for felony. The warrant under which Mr. Macdonell was arrested at Red River, was merely for a breach of the peace, grounded un the circum- stance of his wearing arms, in a country where all the partners of the North-West Company constantly wear them. Upon this new warrant for felony, Mr. Macdonell 116 €t €t t€ and Mr. Spettcer were compelled to give bail for their appearance at the ensuing term of the Court of King's Bench at Montreal^ to be held in March 1816. In the mean time, the Company thought fit to consult their lawyers in this country on the sub- ject; in consequence of which it appears that their agents in London, Messrs. M'Tavish^ Fraser, and Co. and Messrs. Inglis, EUice, and Co. officially apprised your Lordship^ in February 1816, that " it appeared, from the best legal opinions in this " country, it would be impossible to proceed further, as the defendants evidently acted under a misap- prehension of authority; and that no sufficient proof could be adduced of a felonious intent." — They added, that they had therefore lost no time in writing to Canada, in order that these criminal proceedings might be dropped. Whether their letter miscarried in its way to Montreal, or whether their correspondents thought " the best legal opi- " nions in this country" not good enough for them, I know not, — but the agents there, in place of drop- ping, thought fit to persist in and to renew, these prosecutions for felony. Mr. Macdonell and Mr. Spencer appeared at Montreal in March 1816, in pursuance of their re- cognizances, and were then prepared to take their trials ; but the prosecutors were not ready. Further recognizances were required for their appearance in September, but that period was subsequently ex- tended by the Attorney-General on their own appli- cation. No further proceedings took place till September 1817. For some time previous to that „.»»wu I iiiWii ■iifltlii,-. 117 ■^m date^ both Mr. Macdonell and Mr. Spencer had been detained in the interior by the North-West Com- panjj in pursuance of some other \?arrants obtained against them. In consequence of this detention^ the former was prevented from appearing : Mr. Spencer, however, attended at the time appointed to take his trial, as did also several others who had been em- ployed at the Settlement, among whom was Mr. Colin Robertson, who had seized their post at Red River, and against whom criminal proceeding:} had been instituted by the Company subsequent to those set on foot against Macdonell and Spencer. All these parties now demanded their trial; and it seemed hardly possible that any further delay could take place to prevent their cases from coming on. The North- West Company, however, were too well aware that the trial of these parties would not only shew the futility of the charges, but would produce disclosures with respect to the Company's deeds in the interior, which ought, in their opinion, to remain in concealment. Their connections upon the Bench, therefore, stepped in to assist them in this perilous situ- ation. One of the four Judges of the Court of King's Bench at Montreal was, at that period, in a state of suspension from the duties of his office ; and, when Mr. Spencer was brought up to be tried, two other of the Judges, Mr. Reid and Mr. Ogden, declared^ from their seats on the bench, that, owing to their intimate connection with the North-West Company, they could not, with propriety, sit in judgment upon any trial, or take part in any judicial proceedings, in which the interests of that association were involved, n * i 118 or which arose from the disputes that were then pending. The only connection which, I believe, ex- isted between these Judges and the North-West Company was, that the one was brother-in-law to Mr. William M'Gillivray, their principal partner and agent ; and the other was, unfortunately, father of one of their clerks, (still in their service, and re- maining at large in the interior,) against whom a true bill has been found by a Grand .Jury for the atrocious murder of an Indian some years ago. In vain did the prisoners aod their counsel entreat these judges to waive their scruples, urging that it was their duty not to leave the bench. Their deli- cacy appeared to overpower them ; and so far, in- deed, did they carry their sensibility and refinement, that they refused even to concur in taking recogni- zances, and in acting in other matters of an ordinary nature. The}* accordingly rose from the bench, and left the court. — Your Lordship may recollect, that these were the two judges who, a short time after- wards, having got the better of their scruples, went to the gaol at Montreal, and efiected Campbell's escape. The Chief-Justice being thus deserted by his brethren, there existed no longer a quorum ; and the court, as far as these matters were concerned^ was broken up. The trials were postponed, and the prisoners still compelled to enter into recognizances for their future appearance. , . > , As the Court of King's Bench at Montreal, had thus declared its incompetency to try cases in which the North- West Company were concerned, the pri- soners addressed a petition to the Governor of Ca- 1 [ • 119 nada, requesting that he would issue a commission of Oyer and Terniner, for the purpose of trying them. A commission was accordingly granted — the same which has been already alluded to in the other classes of prosecutions ; and it opened at Montreal on the 21st of February, 1818. • ^ ' '< ^ » ^.,'t^m^^ Seven bills were preferred before the Grand Jury of this court on the part of the North- West Com- pany, with the concurrence of the Attorney-General. They were all thrown out, except one against Mr. Colin Robertson, and four other persons for a riot, and for pulling down, in the month of June 1816, the fort and some houses which had been erected by the North- West Company, at the Forks of Red River, adjoining the Settlement. Of the remaining bills, five were against Mr. Macdonell ; viz. three for false imprisonment, one for assault and battery, and one for stealing in a dwelling-house. These were all thrown out by the Grand Jury, — as likewise an indictment for murder preferred against Mr. Pritchard and two other settlers who had escaped from the massacre of the 19th of June, and whom the ]^Iorth-West Company had thought fit to charge with the murder of one of their half-breed servants, —•the only person who fell upon their side on that occasion. After a session of about a week, in the course of which no case was brought to trial, the Court of Oyer and Terminer was unavoidably adjourned, on account of the meeting of the regular term of the Court of King's Bench, which commenced on the 2nd of March. The bills of indictment which had 120 been found at the former terms of the Court of King's Bench at Montreal, could not, as already mentioned, be proceeded in, two of the judges having declared their incompetency to try them. To remedy this evil, the prisoners had obtained the ap- pointment of the Court of Oyer and Terminer. But in place of the Attorney-General taking the means of removing their trials to that Court, he allowed that session (of the Court of Oyer and Ter- miner) to pass over without bringing forward any one of the cases in question ; and at the next term pre^ ferred other and additional bills of indictment against them before the Court of King's Bench, which had publicly declared its incompetency to try them, and in consequence of which the other Court had been specially appointed. It ought to be particularly noticed, that it was fully understood, that the Court of Oyer and Ter- miner had been granted for the express purpose of trying all the charges for offences alleged to have been committed in the Indian territories, in conse- quence of the disputes which had unfortunately occurred. Upon the Grand Jury of that Court there was not a person immediately connected either with the one party or the other, or who had the re- motest interest in the concerns of either ; while, on the other hand, in the Grand Jury of the Court of King's Bench there sat several partners of the North. West Company, and other persons connected with them in pecuniary interests, whom the Sheriff de^ clared, in open Court, that he would not have sum- moned upon it, if he had supposed that any business 121 would have been brought forward in thai Court, connected with the disputes, or prosecutions in ques« tion. The Attorney-Greneral, however, presented to this Grand Jury numerous other bills against Mr. Macdonell, Mr. Colin Robertson, Mr. Spencer, and others, for offences alleged to have been committed in the Indian territories, and which, if found, must have again been sent for trial to a Court, which, by its own avowal, could not try them. In consequence of this unjustifiable proceeding, eight bills were found by the Grand Jury. Of these it may be noticed that two (one, for an assault, the other for stealing in a dwelling-house,) were found against Mr. Miles Macdonell, — the same having been thrown out, the week before, by the Grand Jury o£ the Court of Oyer and Terminer. Another of these bills was found against Mr. Spencer, for grand larceny, in seizing the North-West Company's provisions, formerly mentioned. The charge against Mr. Prit- chard, and others, for the murder of the half«breed servant of the North>West Company, in the affair of the 19th June, (the indictment for which had been thrown out by the other Grand Jury) was again pre- ferred by the Attorney- General, — but the accusation was so absurd, that even the Grand Jury of the Court of King's Bench could not maintain it, and threw out the bill. This term of the Court of King's Bench also passed over without any of the prisoners being brought to trial under these new indictments; in consequence of which they again applied to the Governor of Canada, stating the hardship of their 122 case, and requesting that these new charges might also be referred to the adjourned Session of the Court of Ojer and Terminer^ in order that they might be tried. On the subject of these applications^ I must beg to refer your Lordship to the letter of Lord Sel' kirk, of 13th of April last (a copy of which is here- with transmitted) and which accompanied the peti- tions from the prisoners to the Governor-General of Canada*. This application on the part of the prisoners was referred by the Governor to the Law Officers of the Crown, who gave no decisive answer on the subject^ and when the adjourned Session of Oyer and Ter- miner met (4th May) the process of Court was served upon Mr. Robertson, Mr. Spencer^ and the others, and they were in consequence arrested under the new indictments found by the Grand Jury of the Court of King's Bench. They were required to give bail for their appearance at the following term of that Court, to be held in September. This they peremptorily refused, and again demanded to be im- mediately tried before the Court of Oyer and Ter- miner. The Chief-Justice endeavoured to persuade the parties to give the bail as required, but they per- sisted in their refusal, and declared that they would «ro to prison, and remain there, till the Attorney- G ;*^eral thought fit to try them, rather than continue thus to give bail from March to September, and Sep- tember to March, without any prospect of being * Sec Appendix, [I.] 123 finally discharged^ or permitted to return to their homes and occupations. ^. j ,< . . In consequence of this refusal they were com- mitted to prison by the Chief- Justice. They re- mained there several days, when the Attorney-Gene- ral proposed they should be released, upon giving bail only for their appearance, from day to day^ during the sitting of the Court, professing that it was altogether through mistake that they had been im- prisoned, and that he had not intended to arrest them on the process of the Court of King's Bench. He added, that it had always. been his intention to drop the prosecution of those indictments found in that Court against any of the persons who had peti- tioned to be tried before the Court of Oyer and Ter- miner, and that if they were not brought to trial in the course of that session, they should be wholly dischar^d. The only case which he brought forward,— and that with evident reluctance, — was the bill of indict- ment, which had been found in the Court of Oyer and Terminer, in February, against Mr. Colin Robertson, and four other persons, for the riot, and pulling down, in 1816, the fort, &c. of the North- West Company, adjoining the Settlement. — Their trial came on, and they were all acquitted. The Attorney-General then, at the close of the session, officially announced, that he gave up all in- tention of any further prosecution of those charges brought by the North- West Company, with the ex- ception of one, against some persons employed by the Hudson's Bay Company, — a case which was post- 124 ponedj aDd, I beliefe^ has been ihice abandoned. At leasts it appears, that the accused parties presented themselves at the following term of the Court of King's Bench, held in September last, but the Law Officers of the Crown did not move to have their trials brought on, nor their recognizances renewed. Thus, at length, were the Law Officers of the Crown in Lower Canada, driven to abandon the ha- rassing and vexatious prosecutions which remained untried of all those which had been brought hy the North- West Company, against persons employed at, and connected with, the Red River Settlement. These accusations would probably have still re- mained suspended over the heads of the parties, had it not been for the determined conduct of Mr. Ro- bertson, Mr. Spencer, and other individuals, who, rather chose to be committed to prison than to have their trials postponed from term to term, and from year to year, and thus to be held under perpetual re- cognizance. Among the charges for felony, which the Crown Lawyers were thus obliged to relinquish, were those against Mr. Macdonell, and Mr. Spencer, for the seizure of the provisions (in 1814,) in which case the legal advisers of the Company in Englund had told them, nearly three years before, that there eiisted no ground for a charge of felony. Having now laid before your Lordship a general statement of the various prosecutions which have thus taken place in the Canadas, (here are several cii- ' ' HI' * " fc?l»T- ■ JI FW IH J- --^ d of w ir e I- 1^5 cum stances attending them, which I ihiuk, cannot foil to attract particular attention. > >( inm »», r In the first place^ in almost every case of crimu nal charge preferred by Lord Selkirk against part- ners, clerks, and servants of the North- West Com-* pany, true bills of indictment have been returned by the Grand Jury. Not only has this occurred in tho Lower Province, but when the cases (without being brought to trial upon indictments so found) had been remitted to Upper Canada, indictments were like** wise found upon the same charges by Grand Juries in the latter province. Of fifty-six persons, against whom capital indictments have been founds, only seven have been brought to trial. In the second place, of all the numerous charges and indictments brought by the North- West Com- pany against Lord Selkirk, or his settlers, or persons employed by him, or connected with the Settlement, there is none which does not appear at this moment to have been either — dismissed by the magistrates, — thrown out by the Grand Jury, — disposed of by acquittals when the parties were tried, — or aban- doned by the Law Officers of the Crown where no trials could be obtained by the parties accused. These however are not the only important fea- tures in this case, which must strike every impartial observer. It appears incontrovertible, throughout the whole of these extraordinary proceedings, that the Judges, and Law Ofiicers of the Crown, both in Upper and Lower Canada, have invariably shewn a marked unwillingness to bring the charges, — whether set on foot by the one party or the other, — to the 13C 1 H decision of a Jury. The cause of thifi unwilling^' ness must have been that they believed tlie charges brought by Lord Selkirk to be true, and suspected those brought by the North- West Company to be false. They must have foreseen that, if the matters in dispute came into open Court, where the produc- tion of evidence could not be avoided, disclosures would undoubtedly take place which it would have been better for the North-West Company to have prevented : — For although, in the criminal charges preferred against them by Lord Selkirk, no ciTectual cross-examination of the witnesses was to be expected after his own counsel were interdicted from shar- ing in the principal management of the (rials, yet the Company could not but be apprehensive that enough would transpire Ui do them serious mischief. Wherever, therefore, it could b? effected, the Crown Lawyers, and the Courts in Canada, put off the cases from being brought before a Jury, shewing themselves equally anxious to prevent those accused parties from being put upon their country, who were eager to be tried, and those who wished to evade a trial. It will also naturally occur to any person, who attends to the nature of these proceedings, to ask what motive could induce persons, holding, in Canada, the official situations of Law Officers of the Crown, to conduct themselves in the manner I have described. To this an answer may in part be given by stating, (what I already in some degree adverted to,) that it is generally understoood throughout that colony, that several of these Crown Lawyers, and persons authorised by them to act officially on their 127 behalf, were profeisionally retained by the Noril West Company. The correctness of this allrgatiou. I presume, it may be in }our Lordship's power to as- certain, and, if the fact be as stated, strict impar- tiality could hardly be looked for from Law Officers in that colony who were so situated. — An Attorney or Solicitor-General in Canada, holding even a general retainer from such a body as the North- West Company, could scarcely be expected to prove himself a very active or zealous public prosecutor, in cases where the principal partners of that Company were indicted. But, at all events, the Law Officers of the Crown ought never, in such cases, to have prevented the counsel of the private prosecutor from assisting in the active and ostensible management of the trials. —Tlie right of a private prosecutor in this country to employ his own counsel was, I presume, never disputed ; and even if any doubts bad really prevailed as to the existence of a similar right in Canada, these doubts ought not to have been permitted to operate so as to exclude the prosecutor's counsel from parti- cipating in the conduct of trials where the Crown Lawyers, prosecuting on behalf of the King, were in any shape connected with the parties accused. But this circumstance could not of itself have been the cause of all that train of judicial oppression which appears to have taken place in Canada. There seems to have existed nothing short of a general confederacy among the principalJudge8,theComnii8sioners of Spe- cial Inquiry, the Law Officers of the Crown, and per- sons acting under their sanction ; and it is impossible. IM .(■, t III Upon considering the whole of their proceedings, and conduct with respect to Lord Selkirk, to doubt that the main and primary cause of the improper transac* tions which took place, must be looked for in the Proclamation which Sir John Sherbrooke issued at Quebec, in May 1817, by directions from the Colo« nial Office in England, and in the Dispatch trans- mitted from the same Department, on the 11th of February of that year. " i-y^rf-* >* • * m j?. i»> u»tj»» * On the subject of the Proclamation, I took the liberty of making a few remarks, in my letter to your Lordship of the I8H1 of July, 1817. With respect to the Dispatch of February, I must be per- mitted to take this opportunity of making some observations. '-'«'* * '^ ' ' ' '» ^" t "n^-u: mu When your Lordship, in that Dispatch, stated that you were fully sensible of the danger which might result, from Lord Selkirk's conduct, to the commercial and political interests of Great Britain, it may fairly be presumed, (at least it is difficult to affix any other meaning to that part of the Dispatch,) that your Lordship's apprehensions originated from Lord Selkirk having effected an establishment of settlers at Red River ;— but, if so, it may be asked, why were these objections not stated to Lord Sel- kirk at the time he was commencing that establish, ment^ Your Lordship was, from the first, both personally and officially informed of the purpose for which Lord Selkirk had obtained a grant of land from the Hudson's Bay Company, and of the local situation of the Settlement he intended to establish. 129 Soon after its commencement, your Lordihip directed Arms and ammunition to be issued for its defende ; and afterwards instructed Sir Gordon Drummond, then commanding the forces in Canada, to g^ive such military protection to the settlers at could be afforded without detriment to His Majesty's service in other quarters. "**i *' -mi.msu*! »"» ,»ji».*u»i» I It is evident therefore, that, a few years a^o, youf Lordship could not have been of opinion, that Lord Selkirk, in supporting his Settlement, was putting in danger the commercial and political interests of his country ; and if, at any time subsequent to that period, his conduct appeared to your Lordship to justify that opinion. Lord Selkirk ought to have been apprised of the change in your Lordship's sen- timents, and of any objections which His Majesty's Government, either in a political or commercial view, might have entertained on the subject. But, of these objections Lord Selkirk knew nothing till he read them in the Dispatch which had accidently fallen into his hands, — and by which it appeared; that a marked stigma had been fixed upon him, without the slightest opportunity having been af- forded him of being heard in his defence. But this charge is not the only one which has been thus officially pronounced against Lord Selkirk. *' By resistance to the execution of the warrants " issued against him," says the Dispatch, *' Lord " Selkirk has rendered himself doubly amenable to " the laws ; and it is necessary, both for the sake of " general principle, for the remedy of existing, as ** well as for the prevention of farther evils, that the 130 Iff I "determination of the Government to enforce the " law with respect to all, and more particularly with " respect to Lord Selkirk, should be effectually and " speedily evinced. You will, thisrefore, without ** delay, on the receipt of this instruction, take care *' that a bill of indictment be preferred against his " Lordship, for the rescue of himself, detailed in the " affidavit of Robert M'Robb," &c. &c. ■o On the subject of these heavy accusations the Bench of Magistrates at Sandwich, in Upper Canada, were certainly much better informed than the Colonial Department in England. Although the latter had, on a charge grounded upon the affidavit of Robert M'Robb, declared that Lord Selkirk had rendered himself " doubly amenable to the laws" — the former were satisfied with binding him in a recognizance of fifty pounds for his appearance to answer the charge, —and when it was afterwards brought forward in the shape of an indictment, as specially directed by the Dispatch, the Bill was, without hesitation, thrown out by the Grand Jury, May I be permitted to ask your Lordship how the affidavit of Robert M'Robb came into the possession of the Colonial Department ? That document pur- ports to have been sworn to before the Commissioners of Special Inquiry, at York, in Upper Canada, upon the ITth of December, 1816, Between that period and the date of the Dispatch in which it xa noticed, there was scarcely time for its arrival through the regular and official channel — the Provincial Go- vernment of Lower Canada. These Commissioners held their appointments and instructions from the 1.31 Governor of Quebec, iind to him all their ofiicial Reports and Communications were of course to be addressed. Sir John Sherbrooke surely would not transmit this solitary affidavit, or any selection of ex parte depositions on behalf of the North-West Com- pany, after he had named Special Commissioners fully and fairly to investigate the whole subject. But these Commissioners had not even entered upon any examination, or taken one single deposition of per- sons belonging to the opposite side, at the time when M'Robb*8 affidavit is stated to have been sworn io, or even at the date of the Dispatch in which it is noticed. If the Commissioners reported upon the subject of M'Robb's affidavit, before they took any evidence, except what was produced by the North West Company, they acted with gross impropriety ; and, if without reporting to the Governor at Quebec, they took upon themselves to transmit such ex 'parte evidence to the Colonial Department, (direct from York, by the less circuitous route of the United States) they must have had some improper motive in so doing, and the Document they so transmitted^ ought to have been received, and viewed in your Lordship's Office, with care and circumspection. If, on the other hand, the affidavit came into the ColonialOffice through some private and unaccredited channel, it was still more requisite to have been cau- tious in the use which was to be officially made of it. I must mention to your Lordship that, some time af- terwards, Mr. Fletcher expressly refused to allow Lord Selkirk's witnesses to have copies of the affida- vits made by them, declaring that they (the Commis- 1 1 132 sinners) had invariably adhered to a reflation made by them, that no copy of any of these documents should be allowed. The regulation was a very foolish one, but if it was to be adhered to, it should, of course, have been held equally applicable to the one party, as to the other. This, however, could not have been the CRRe, bei^ause about the very same mo- ment that Mr. Fletcher was declaring in Canada that no copies of affidavits attested by the Com mis- sioners had been allowed to either party, the Norths West Company's agents in London were publishing M'Robb's affidavit. This document, therefore, — whether as an original, or a copy, must (if it was produced to the Colonial Office through any private channel) have been improperly given, or surreptiti- ously obtained. Be that, however, as it may, — whe- ther it came officially through the Provincial Go- vernment of Canada, — or directly, but irregularly, from the Commissioners them8elves,-«-or surreptiti- ously through the hands of some agent of the North- West Company, at all events it ought not, without further and fair inquiry, to have been made the ground of heavy charges against any man, much less of official instructions to arrest, indict, and prosecute him. Before 1 take leave of Robert M'Robb, it may be proper to mention some circumstai:tces which your Lordship has probably not been made aware of. In the affidavit transmitted to the Colonial Office, he was prudently iiiade to omit auy notice of who, or what, he was. This was not M'Robb's usual prac- tice, because I observe in other affidavits made by I ^■11 *^..,_„, • r I le It la ^■n IN**, ,- 133 him, both before nnd after the one in question, that he was in the habit of beginning what he had to depose by describing himself as a '* clerk in the " employ of the North- West Company," or, what was the same thing, "a clerk of the House of Messrs. " M'Tavish, M'Gillivray's and Go's." The omission in the affidavit transmitted to your Lordship was evidently not accidental. In fact M'Robb is em- ployed in the same office with M'Tavish aBd Vandersluys, and he appears to be well qualified to assist them in a very important branch of the Com- pany's service : — While the two former were qualify- ing themselves to be indicted for perjury, by swearing that Lord Selkirk had feloniously stolen eighty-three Indian fusils, the latter was preparing the affidavit which was to be transmitted to England^ for the purpose of forming the ground-work of that traio of persecution which Lord Selkirk has met with in Canada. When the deserters from the Red River Settlement were brought down, in the year 1815, to Fort Wil- liam, by the North-West Company various sums were paid to them by the partnership as bribes and rewards for their services in robbing their fellow- settlers, attacking them with fire-arms, and burn- ing their houses. For these services they have been .remunerated by the North- West Company, and in- dicted by a Grand Jury. A regular book was made out in the Company's office at Fort William, indorsed •* Red River and Colonial Register," in which, (as mentioned in my letter to your Lordship of the 23rd T y r 134 of August, 1817,) the sums paid, or credited, to these men vere entered, — some for articles which they had stolen from the settlement — others as dis- tinct bribes and rewards for their activity and exer- tions in its destruction. The two clerks, through whose hands most of these sums were paid^ and whose hand-writing appears throughout this book of account, as noting the sums and marking the payments, were M'Ta\ish and M'Robb, — and it is upon the asser- tions of such men that your Lordship has been pleased, in an official Dispatch, to brand the character and conduct of several individuals, and to direct criminal prosecutions to be instituted against them. On the subject of the Dispatch I ought also to ob- serve, that, although it stated that it was " the deter- " mination of theGovernment to enforce the law with " respect to all, and more particularly with respect to " Lord Selkirk," it is evident, from the conduct of the Law Officers in Canada, that they must have construed this instruction to mean, that Lord Selkirk and those connected with him, — particularly some reduced Swiss officers, who had been long and meri- toriously eniploj-^d in the British service, — were to be prosecuted, but no one else. The Dispatch, indeed, did truly titate the necessity of putting an end to a system of lawless violence which had too long pre- vailed in the interior : but has the proper mode been adopted to put an end to that system ? — A number of British colonists, who were cultivating their farms and peaceably establishing themselves in the interior, with the knowledge and consent of Government, i 135 were attacked by a mercantile association of tlicir fellow-aubjectSj supported hy their half-breed clerks and servants. They were plundered, fired at, some of them severely and one of them mortally wounded, and were obliged to abandon their lands, after their houses were burnt to the ground. Some time after- wards these settlers ret«:rned, and were employed in the cultivation of their allotments, when the same association again attacked them, but in greater force, — a ftjrce composed of armed agents, partners, clerks, magistrates, and other half and whole -breed retainers of the North- West Company. Again were the settlers plundered of their property and provi- sions, their crops destroyed, their houses reduced to ashes, and, after Governor Semple, and about twenty of the principal people of the colony, were butchered by their assailants, the rest of them were again driven off, with their families, from the Settlement. All this lawless violence was fully known to the Crown Lawyers in Canada, and they could not but be aware that the circumstances had been laid before His Majesty's Government. But, finding that no particular notice was taken of the capital crimes charged against the North-West Company, while the most marked and minute instructions were sent out how to prosecute Lord Selkirk and his friends, (upon a charge, which, even had M'Robb's testi- mony been deserving of credit, only amounted to a misdemeanour,) the Law Officers of the Crown thought themselves at liberty to interpret the (io- vcrnment dispatches in their own way, and con- * » 136 ckidedj — not Without some shew of reason^ — that the Colonial Department was not very anxious about molesting the North- West Company, but extremely eager to persecute Lord Selkirk and his friends. Your Lordship must permit me here to advert to the letter which Mr. Goulburn was directed to ad- dress to me on the Ist of September, 1817; in which I was told, that, being aware of the ubjectioni which might be taken to the Courts of Canada^ your Lordship had done every thing in your power to facilitate the trials of the questions at issue in this country. This was certainly most satisfactory infor- mation at that time ; because the bringing those trials to England, from the objectionable Courts in Canada, appeared to be the most likely mode in which substantial justice could be obtained. But how is the assertion, contained in Mr. Goulburn's letter, to be reconciled with the purport of the Dis- patch of the 11th of February ?— " You will, with- " out delay," says the Dispatch, ** on the receipt " of this instruction, take care that an indictment " be preferred against his Lordship for the rescue *' of himself, detailed in the affidavit of Robert "M'Robb; and, upon a true bill being found " against him, you will take the necessary measures " in such cases for arresting his Lordship, and bring " him before the Court from which the process *' issued."-— And, throughout the sequel of the Dis- patch, this instruction was followed up by a minute and circumstantial detail of directions how these criminal proceedings ought to be carried on against '^rffjr-- *>T^'*rr' 137 Lord Selkirk in Canada ; — how Uie Act of Parlia- maiii, brought in by the North-West Companj's agents, was to be interpreted in his case ; — bow the Canadian Magistrates, in order to apprehend him, might grant one sort of warrant, or back another ; how process of court was issuable, and how return- able ; — in short, how constables might catch, and Attoruies-General indict him. If, however, any sub- sequent measures were taken to prevent the injustice which might arise from the directions thus issued on the 11 th of February, and any counter-instruction sent out in consequence of the objections felt with respect to the Courts at Canada, as admitted on the 1st of September, — those measures ought to be com- municated to Lord Selkirk. An individual, who has ■tuflered so unjustly from criminal proceedings in Canada, sanctioned by the Dispatch of February, ought in fairness to be informed what facilities had been afforded for the removal of the trials to Eng- land, as stated in the official Letter of September. But your Lordship will observe^ that, long after the date of Mr. Guulburn*s letter, the Crown Lawyers 4n Canada avowed that they were then acting in these prosecutions by the express directions of the Secretary of State. Even up to the present moment, they appear to have kept in constant view what they supposed to be the real intention of a Dispatch which they took such pains to conceal, and at the discovery of which they were so much alarmed ; and they have, in consequence, adhered, and 1 believe, do still adhere, to. a system of persecutioii, which^ ■■■1S;35't^ 'i5 -^ ,•' * , . !*'#■■ = *.-. -rf :i' '♦♦* 138 I if thej had not persuaded themselves that it met the wishes of the Colonial Department^ they would hardly have dared to support. :^ u^. The circumstances which I have thus^ at full length, detailed to your Lordship^ are certainly such as to merit most serious consideration. The length to which the detail has led me, must be ascribed to the important matter which it embraces, and not to any wish, on my part, unreasonably to intrude upon your Lordship's time. However incredible the oc- currences which I have noticed may seem to be, they have, to the best of my belief, been stated faithfully, and without exaggeration. Lord Selkirk pledges himself to produce unquestionable proof in ^uf^port of all that I have asserted, in this, as well as in my former letters. I have only to except two unim- portant mistakes, in those of the 18th and 31st of July, 1817. In the former, I mentioned that Go- vernment had issued arms and ammunition for the protection of the Red River Settlement in 1814 ; I should have said 1813: and in the latter I also fell into an immaterial error with respect to one of the numerous warrants issued for Lord Selkirk's appre- hension. In the printed Statement, which was trans- mitted to your Lordship (with my letter of lOth of July, 1817), I likewise find there is a mistake, which must have arisen from the information transmitted at the time from Montreal. In page 165 of the Statement, Charles de Reinhard, since convicted of the murder of Mr. Keveney, k said to have been apprehended in consequence of Lord Selkirk having 139 given directions, at Fort William, to Captain D'Or- ronitens, to arrest him. The murder, however, was not known at Fort William when that gentleman left it, but intelligence having been given to him before he reached Lac la Pluie, he took the neces- sary means, and succeeded in apprehending the murderer. tiixn\ lr('{ •v(/ Upon a review, of all the documents which I have transmitted to the Colonial Office, on the subject of Lord Selkirk's affairs, and of the whole proceedings which have taken place with respect to him, it is evident that he has been treated with marked and signal injustice, — and it cannot be expected that a man who has been so injured, is to sit tamely down, and have his rights of property trampled upon, and, what is of more importance, his character wantonly traduced. In his absence, and without his knowledge, I did every thing in my power to warn your Lordship, as Secretary of State, against lending too willing an ear on these subjects, to the interested representations of partners and agents of the North- West Company, or to the fabrications of such men as Vandersluys, M'Tavish, and M'Robb. If my communications were not thought worthy of implicit reliance, they ought, at least, to have induced your Lordship to have paused, and to have instituted some more careful and strict inquiry. It may, f^erhaps, be not yet too late to commence impartial investi- gation, and, by ascertaining the real source of past crimes and disturbances in the interior of British ■•■1 *i 140 North America/ to adopt effectual meani of pce- voatinp the pofsibilitj of their recurrence. i ' I have the honour to be, ' -^ ^' ^ MjLord, ' '-^ »»^ «^ Your Lordship's obedient And humble Servant, : J. lULKETT. '^»«i •■^•t 1^, 'V. Earl BatJturU, *c. 4-c. ifc. Downing Street, 9th February ^ 1819. IIR, . .^ I am directed by Lord Bathunt (o acknow- ledge the receipt of jour letter of the 30th ultimo, and to acquaint jou, in reply, that, although it inculpates, in a charge of prejudice and injustice to- wards Lord Selkirk, all the high official authorities in Canada, many of whom cannot be susfiected of having been misled by personal interest, or partial affection ; and although there are several statements in it founded on a misapprehension of what has passed, — yet, as it contains matter of much grave charge. Lord Bathurst will transmit a copy of it to tlie Governor -^veneral, directing his attention to those parts which appear to require more particular inquiry and eitplaniUion, The paper which purports to be an extract of Lord Bathurst's Dispatch of the 1 1th of February, 1817, is not only in the passages which you have marked. ^iLLr.z.ini^j^.?, 3tJ-.jy>M-^-:^t^ "- ' >™.r.Jt. . —aw 141 but in many other reipecti^ very inaccurate. Upon intelligence received, that Lord Selkirk had reiisted a warrant. Lord Bathurst thought it his duty to direct an indictment to be laid against his Lordship for such resistance — considering that his Lordship's rank and situation in life afforded additional reasons for requiring from him an obedience to the laws. ■ It having been further represented, that doubts existed in what manner the law could reach his Lordship, should he withdraw out of the provinces of Upper and Lower Canada, but remain, neverthe- less, within the other British dominions in North America, — Lord Bathurst, after consultation with His Mfyesty's Law Officers, detailed in the Dispatch of the 1 1th of February the proper measures to be taken under those circumstances, in the event of the indictment being found. The Dispatch referred to directed no other prosecutions against his Lordship ; and Lord Bathurst does not think it necessary to enter into further explanation of the paper, more particularly considering the manner in which Lord Selkirk^obtained possession of it. . ^ . V* * ?^ i' M^f^t' lam. Sir, » ' *■ Your most obedient Servant, '■■f^ ■"» -w> «>■■ '4 . ^ii >Vv ii J. Hatkett,E$q. HENRY GOULBURN. _?■.-*;- ,.u;/5|i .-. "> f* -4*)9 •iM^.*4««r>»,<— «i 142 .'^4ij'm3.i«crt V I**"? ».ii Seymour Plact, l\tk February , 1819. MY LORD, *•»•»*. .'»*• ♦••»«'» I I bavt} had the honour of receiYing Mr. Goul- burn's letter of the 9th instaidt^ in answer to that which I addressed to jour Lordship of the SOth ultimo; and, as Mr, Goulburn mentions that my communication inculpates all the high oflScial autho- rities in Canada, it appears requisite, that, on so important a subject, I should not, in any degree, be misunderstood. ,.— - ..,, . . . .. ,,^„ There is no intention, on mj part, to inculpate every high official authority in Canada, or to include, in charges of prejudice and injustice against Lord Selkirk, the innocent with the guilty. The public officers against whom these charges are specifically pointed, are, the Commissioners of Special Inquiry, the principal and some other Judges, and the Law Officers of the Crown. ^^^^^ '*^*^ ""^^ » ^ With respect also to that part of Mr. Goulburn's letter, which states that the paper purporting to be an extract of the Dispatch of the 11th February, 1817, is very inaccurate, — it is evident that Lord Selkirk cannot be held responsible for such inac- curacy. The original he never saw; nor did he think it worth bis while to retain the copy (in the hand-writing of the Advocate-General of Quebec) which had come into his possession, and which, under the extraordinary circumstances of his case, he might have been justified in retaining. 143 « It cannot be doubted, however, that the copy taken by Mr. Pyke may be deemed sufficiently accu- rate to latisfy every impartial person, that the direc- tions given for indicting Lord Selkirk were founded upon ex parte intelligence, communicated by Mr. Robert M'Robb, the hired clerk of his inveterate enemies. # I have the honour to be, ^ My Lord, Your Lordship's obedient ,.^j- Earl Bathurstt Ifc. ifc. SjC. V-iiV.,i' ,■'. '^■• and humble Servant, . J. HALKETT. >' *-»• i . J . , /lJ"..!-). .ti u y .I»('j« r ') :n n t i ) i . ■■ .,';-« S -'»■.' J% ; 'r-^rt .■• -.^-< ■» ■Ti"r?T!'>. *J f *'"*-'fc;:^4 J i»i/dH J A W-i r^-l^s^ APPENDIX. // ".:'^' • ^ [ A. ] Informaiion of J» Fattd€rsluySf and J. C. M* Tomsk* Upper Canada, ^ Jasper Vandersluys, and Western District, > James Chisholm M'Tavish, late of Sandaichj to wit. y Montreal, and now of Sandwich^ in the Western District of the province of Upper Canada, gentlemen, being duly sworn on the Holy E^vangelistSy severally make oath, and say, that on the Uth day of August last past, one Thomas Douglas, commonly called the £arl of Selkirk, Frederick Matthey, Prothee D. Odet D'Orsonnens, John M'Nab, Donald M*Pherson, G. Adolpb* Fauche, John Allan, Miles Macdonnell, John Spencer^ Frederick de Grafiemreid, together with a party of armed people, to the amount of fifty and upwards, and to these deponents unknown, did forcibly and violently by means of arms enter a place called Fort William, in the Western District, Upper Canada, being the principal trading post of a CcHipany of Merchants, known under the firm of the North- West Company, who had appointed these deponents to superintend and direct their trade at the aforesaid place, called Fort William. That the aforesaid Thomas Douglas, commonly called the Earl of Selkirk, Frederick Matthey, Prothee D. Odet D'Orsonnens, and the others aforesaid, with the aid of the said armed force, did then and there feloniously steal, take and carry away eighty-three fusils, of the value of <£.250 money of Great Britain, of the goods and chattels of the Honourable WilUumM'Gillivray, Simon •7 -Ji-.','JaLJ-a.lf 146 APPENDIX. M'Gillivray, Archibald Norman M'Leod, (ami olher&*,) being the partners composing the firm of the said North- West Company. .^Ift^jr-jfjt^ J. Vandbrsluys. J. C. M'Tavish. Sworn before us, this 19lh day of October, 1816, Francis Baby, J. P. W.D. J. Bte. Baby, J.P. W. D. .iV*;:s.J>U Georgb Jacob, J. P.W. D. ^avw ?rA ^ f I, I [B. ] .vs'i h fj' 'i.f't^ati'-. io wtHt btiii ^i :-i»J«'- .h;.: ji r''" »' t»vi"- AFPENDlXi U7 e. I establislied a( Red Riv(ir, in (he Hudson's Bay, by the Earl of Selkirk. That this deponent knew at R? vjn rk ?^ * day of A pril, 1817, before me, ». i ^ - « ^ ^ ? ^' j i v., m'jH , » r* fj«S'*-',t*^tj?,'-3t, Thomas M'Cord, J. P. • tyinYM^in-t-ji fa */ B • '''. * ■ t: Tl'^< [C. ;i I •J^Km ,') ..f JJIdatii of Philip Let/den District of) Philip Lbydch of the city of Montreal, in Montreal. ) the district of Montreal, yeoman, being duly •wonn upon the Holy Evangelists, deposeth and aaith, that he was a servant at (he colony, established by the Earl of Selkirk, at Red River, in the territories of the Hudson's Bay CfMnpuiy, and resided there from the year 1816, to the spring of the year, 1815. — ^Tiiat m the month of June 1816, : 11 \ i c J li! li, APPBNDII. various attacks were made apon the colonists, and tbal tliej were fired upon in their bouses by a Ix)dy of armed men, servants of the North- West Company, and others, who resided at a fort of the said Company called Gibraltar* in the neighbourhood of tlie said colony ; that he knows one George Campbell, one of the settlers of the said colony, at Red River, who, in the spring of 1815 left his habitation, at the said colony, and went to reside a> ihn said North- West Fort called Gibraltar. — ^That this deponent also knows one Hugh Swords, one James Golding, and one John Mohony, who, like this deponent, were servants at the said colony,— who in the spring of 1815, left their service, and went also to reside at the said fort. 1«in»tuv«H«^* »o.f*^(f">?i **•»'• v witr That the said George Campbell was one of the leaders in several of the attacks upon the said colony. — ^That the houses of the colonists were set fire to, and burnt, in the said month of June 1815, by a party of men from the said North- West fort. — That the said George Campbell was also present and concerned in the burning of the said bouses. — That the said Hugh Swords, James Golding, and John Mohony were also present, armed with guns or muskets, and concerned in the attacks that were made upon the colonists as aforesaid in their houses, by shooting at them. — This deponent knows not of any other services which the said George Campbell, Hugh Swords, James Golding, and John Mohony had rendered to the North- West Company, ex-> ceptingonly their endeavours to expel the colonists in their attacks upon them in their houses, of which he has before spoken. — ^Tbat this deponent hath heard the aforesaid per* sons speak of the services they had rendered io the North- West Company, and never heard them speak of any other services rendered the said North- West Company than those he hath already stated. — That he also beard them say, that they should be well rewarded by the North- West Company, for their trouble. — That this deponent hath also heard the wife of the said George Campbell state, that the said George I ,.«»»"•' APPENDIX. 151 Campbell was to come to Canada, where the North- West Companjr woald enable him to. live like a gentleman.— That amongst the arms employed against the colony by the North- West Company, were some cannon or pieces of ar- tillery, which had been robbed from the stores of the said colony.— That the said Hugh Swords was appointed captain of one of these cannon, with three men under him to obey his orders, by Alexander M'Donell, one of the partners of the North- West Company.— That the said Alexander M'Donell had established a camp at a place called Frog Plain, within about three or four miles of the said colony. — ^That the said Alexander M^Donell afterwards, in (he month of June 1815, with all his force of men and artillery, moved up to the said colony, and erected a battery against the house, called the Government House, and planted on the said battery four pieces of artillery, part of which had been robbed from the colonial stores. That while tlie said Alexander M^Donell was encamped at Frog Plain, as aforesaid, the European cattle, belonging to the said colonists, were seized by the said Alexander M'Doneirs party, and one of these killed in the presence of this deponent, and this deponent believes that the rest of them werea^' '^terwards slaughtered by them.— That while they were so encamped at Frog Plain, one of the colonists, to wit, Duncan M^Naughton, who, as this deponent was informed, was killed in June last, at Red River aforesaid, came from the Settlement to demand the sa»* .iu'i//*jil'i(.'vT ' ^ That whila the said Alexander M^Donell was encamped at Frog Plain as aforesaid, one John Smith and his family, consistingof his wife and fi?eorsix children, were surprised, taken prisonera, and carried down to the encampment, where a man with a drawn bayoaet was plar«d over them as ceatincl, by the joint orders delivered iu the hearing of this deponent of the said Alexander M*Dooell and Duncan Cameron, anotlier of the partners of the uid Company, who generally caronvanded at Fort Gibraltar aforesnid. — That while the said John Smith was in confinement as aforesaid, the said Alexander M'Donell, in the hearing of this deponent, told the said John Smith '^ That he should " not slay at Red River as a colonist, but that he should ** cither go to Canada, or quit that country for some other ** place.— That be, the said John Smith, if be should go to ^' Canada, would get a great many acres of land given to ** him, and that he might earn by his labour three or four '* dollars a day. That Canada was a much finer country *' than Red River, and that if he, the said John Smith, '' remained there, he would be all his days iu poverty, but " that he, the said Alexander M'Donell, was determined " that there should be no colony at Red River — That he, ** the said Ale^cander M'Donell,would drive off every single *' settler from the land, and woukl neyer allow any of tliem '* to come to Red River again, and would burn the houses *' to the ground before be left Red River.*' That the said John Smith then replied, be should like to stay at Red River, if he should be allowed, btti that, if he w«re ta^ away he could not help it. > : ' . - '; ; And this deponent farther saith, that the lands at Red River are clear by nature^ and that the soil is better, and the climate much milder than in Canada. — That the said k'' ■■«'***«WSa1«S».''-'* APPCNDIX. 153 George Campbell, John Smith, John Early, Hugh Swords, James Golding, and John Mohony were, after the month of June I8I5, together also with a number of other colonists and servants of the colony, taken in the canoes of the North- West Company to Fort William, a fort belonging to that Company on Lake Superior.— That there was no money at Red River, as this deponent ever saw, and that until he arrived at Fort William he had not seen a dollar.— mentioned persons could have rendered to the Nortb- West Company from the time of their joining them in 1815, and knows of no services which they have rendered to that Company, unlesis the various attacks upon the colonists who were well-disposed, the slaughtering their cattle, and burning of their houses be considered as services. — That the sums of money paid to t!ie said George Campbell and others last above-mentioned at Fort William, were generally paid them, as far as this deponent can recollect, by Kenneth M^Kenzie,oneof the partners of the North- West Company, at his office or counting house at Fort William. — That other partners were occasionally present there when the payments were made/ whose names this deponent cannot now recollect. — That the said settlers and servants were Y m u" "aa gwr— »oi \5i APPENDIX. afterwards conveyed in batteauz,and a schooner belonging to the North" West Company, to Sault St. Marie, in Upper Canada. •. ... , , .. , ,.., /i/n,;ii The deponent declares he cannot write, and sets his mark to the contents of the foregoing tweWe pages. His •' '- Philip + Leyden. » -^ '■•■■- -. ' -'T ..,«/.. Mark. Sworn at Montreal, this 18th ' ^' day April, 1817, before me, '^ ' - ' "^ Thomas M'Cord, J. P. . ■ *•» ' ■■■• v:. ^i . .••■,f;^.' -■^ [ D. ] ^.^.i;. .■ .-■ ■ Affidaxiit of Mr. A* Johnson Williamson, Alexander Johnson Williamson, of the city of Mon- treal, in the province of Lower Canada, gentleman, maketh oath. That being in theservice of the Company of Merchants, trading in the said province, and in the Indian country, under the name of the North-West Company, in the capa- city of a clerk, he was at one of the trading posts of the said company, called Fort William, last summer, when the partners in the said Company from the different trading posts, and also from the city of Montreal, assembled there, as they are in the habit of doing annually, for the purpose of regulating and managing their trade. That while the deponent was at Fort William as aforesaid, about the latter end of July last, a number of persons who had been settlers and servants in the service of the Earl of Selkirk, in his Lordship's colony at Red River, within the territories of the Hudson's Bay Company, were brought to Fort William, in the canoes of the said North- West Company, the said colony, as the deponent then learnt, having been destroyed. H" APPRNDIX. 156 r-f That after thearriral of the laid personi, the oocurrencei vrhich had taken place at Red Rirer aforesaid, and in par- ticular the attack which had been made on the colony there by an armed force, and the lubtequent destruction of the said colony, and also the previous taking of the cannon belonging to the colony, were made the subjects of conver- sation at the dinners in the common hall, in which the part- ners in,and clerks of, the Company dined ; and great appro- bation was expressed by the said partners generally, of what had been done (here. The conduct which had been observed by Duncan Cameron, one of (he partners in the said Com- pany, in what related to the said occurrences, was particu- larly praised, nnd lie was deemed to be very praise-worthy for the steps by which he had obtained possession of the cannon of the said colony. That from what passed in the conversations on the subject of the said occurrences at Red River, the deponent understood that the said partners then present viewed the taking the said cannon, and the attack on, and destruction of, the said Colony, as measures necessary for their interest, and the greatest satisfaction was expressed by them at the success of those acts, which were spoken of as exploits. That among the persons who expressed these sentiments of approbation and satisfaction, were Simon M'Gillivray, Archibald Norman M'Leod, John M'Laugh- lin, Archibald M'Lellan, Alexander M'Kenzie, Keneth M'Kenzie, John Duncan Campbell, John M'Donell, com- monly called Bras Croche or Gart, Alexander M'Donell, partners in the said Company; and James Grant and James M^Tavish, clerks in the service of the said Company, and about to be admitted partners therein. That the said Dun- can Cameron, who was present, and then took part in those conversations, ascribed to b imself the merit of having brought about and affected the said occurrences at Red River. That while the deponent was at Fort William as afore- said, and after the arrival of the said persons from Red River, the said persons underwent examination, before the y I tts APPBNDIX. :') ^ II t said Alexander M'Donell and Archibald Norman M'Leod, fur (lie purpose of ascer(ainin(|f an)' grievances or grounds of complaint they could allege to hare bad while at Red River : and the deponent assisted under the direction of the said Alexau'ItT M'Donell in taking their examinations, in the course of^vhich great anxiety was evinced by the said M^Doiirll and M'Leod to discover circumstances that might biini; discredit on the management of the colony, and on Captain Macdoiiell, governor of the said colony. That while the deponent was engaged iu taking the said examinations, a letter was received by the said Alexander M'Donell from the &aid Simon M'Gillivray, then at the Sault 8t. Mary, which the s;iiil M'Donell shewed to the deponent, in which the said Sinum M'Gillivray found fault with the taking up to much time in the said examinations, and suggested the expediency of getting at something that might criminate or throw biume on Lord Selkirk, observing that the said M'Donell ought to ondeavunr to find out some of the said settlers, who could, or would, swear to circumstances that might have that effect. •" ' ' ' ' • ' That among the said settlers who were brought to Fort William, as aforesaid, in the canoes of the North- West Company, was one George Campbell, and the deponent heard from the mouth of the said Campbell, that he had been particularly active in the attack upon, and destruction of, the said colony at Ked River, and very instrumental in bringing off the colonists, having, at the instigation of the said Duncan Cameron, induced them to abandon the Settle- ment, and place themselves at the disposal of the said North- West Company. That the deponent, three or four days after the arrival of the said George Campbell, at Fort Wil- liam as aforesaid, heard one Kenelh M'Kenzie, a partner in the said North-West Company, tell James M'Tavish, book- keeper to the Company there, that he, the said Keneth M'Kenzie, had given one hundred pounds to the said Camp- bell, and afterwards the deponent saw the said George K / 'vi.siu^tijMlrift^i'U's ■ W «i « "mim. / 157 APPBMDllt. Cam pbeir receive n consulerablo sum of money in dollars from one Robert MMIobb, n clerk in the service of the saUl Norlh-Wett Company, and employed in the payment of money on account of the said Company at Fort W illiam, which was paid to the nnid Campbell by the said M'Robb, by desire of the said K>neth M'Kenzie; and the deponent believes the sum so paid, mifi^ht be about one hundred pounds. That the deponent afterwards heard from the said Campbell, that he had subsequently received other sums of money from the saiti North- West Company. That the said George Campbell ^'.as treated with particular attention by the partners in the said North-AVest Company, at Fort William, and at diun(fr was distifr^uishcd from the other settlers, by being placed above e clerk' and next to the partners, at tabic. That communicatio .;, the deponent believes, still continue Xa he kept up witi Ine said Campbell, who is now in L pper C»n;ul», i the North-V- st Com- pany, the deponrnt having i. knowledge that William M*Gillivray,one of the partners in the said Company, lately dispatcheil a letter to him. That the deponent was at Fort William, when one Andie Herigault, charged with letters to the Governor of the Hudson's Bay territories, arrived there in a canoe, with tobacco and other articles, on his way to Red River, whither he was going in the service of the Hudson's Bay Company. That the partners in the said North- West Company* at Fort William, apr;;^ id very hostile to the said Herigault, and disposed to obstruct his progress, by every means in their power, and, with this view, they enticed the guide of the said Herigault into the said fort, made him drunk, and secreted him for several days, and until after Herigault, despairing of getting him back, and unable to proceed without him, had given up the prosecution of his journey, and returned towards Montreal. That the evening before the said Herigault set out on his return, the deponent was present when the said Alexander M'Kenzie, in the presence 'm^A m APPENPIX. i of a number of Indians of the half-breed, addressing himself to one of them of the name of Fraser, said, " 1 suppose you ** and some of your comrades will be going over this even- '* ing, and stealing his tobacco ;*' (meaning the tobacco of which the said Herigault had charge, and which was then |n his canoe on the oppo^te side of the river). That the said Fraser immediately spoke tp some of the.said Indians of the half-breed, and went away with them, intending, as the deponent believed at the time, and believes still, to carry into effect the suggestion of the said M'Kenzie, as to the stealing the said tobacco. That the deponent, when the said words were used by the said Alexander M'Kenzie, un- derstood them to import, and as being equivalent, to a direc- tion to the said Fraser, to go and steal the said tobacco of the said Herigaulf, and they appeared to be so understood by every person present. A. J. Williamson. Sworn at Montreal, this 31st day of December, 1815, before me, Selkirk, Gvil Magistrate for the Indian Territories, J. [E.] . . ' Letter from Mr. Simon M^Gillivrai/^ to the wintering partners of the North- West Company i with their answer. Londpn, 9th April, 1813. GENTLEMEN, A circular letter addressed to you by the house of Messrs. M'Tavish, M'Gillivrays,and Co., will probably have announced to you, before you receive this, that I have recently become a partner of that establishment, and consequently have become more directly connected with the North- West Company, than I had previously been. On this occasion, fw~. ■ M APPKNDIX. 159 therefore^ I consider it a mark of attention due from me, to address to the wintering partners some further Gommuoi- cationsythan a mere formal notice of the intimate connectioa thus formed between us, and though personally unknown to almost all of you, gentlemen, yet, as I flatter myself that you are informed of the share I have for several years taken in conducting some of your most interesting concerns in this country, and as I have a family claim to the feelings and opinions of a North- Wester, I feel myself priviledged to address you on the footing of an old friend, rather than a stranger, and I shall accordingly proceed to state to you my sentiments on several matters interesting to you, which have been in discussion here during the last season. It will no I be necessary for me to enter into details respect* ing the negociation with the Hudson's Bay Company, as we have made ample communications upon that and other matters, to your agents, who will, doubtless, give a report of the same. The committee of the Hudson's Bay Com- pany, is at present a mere machine in the hands of Lord Selkirk, who appears to be so much wedded to his schemes of colonization in the interior of North America, that it will require some time, and I fear cause much expense to us as well as to himself, before he is driven to abandon the project, and yet he must be driven to abandon U f for his success would strike at the very existence of our trade. — By the Inverness newspapers (of which I fancy sonre files wilt find their way to Fort William,) you will see that I have given his Lordship some annoyance through the medium of the press, and I have reason to hope that the " Highlander's " Letters" will, in a great measure, prevent him from getting servants or emigrants from the Highlands of Scotland. It would, however, be very essential for this purpose, that I should be able to give the public some further details of the voyage from Stronoway last summer, and the manner in which the people from thence were disposed of after their arrival at York Factory. From the lateness of the season i I I i i 160 APPENDIX. at \rhich they arrived, I fancy they could not have made great progress into the interior, and must consequently have buffered much for want of provisions, during the winter. If you can transmit to me a narrative of their proceedings and sufferings, authenticated, if possible, by affidavits, it will answer an excellent purpose, as will also a narrative of the attacks made by the Indians on some of the Hudson Bay posts on the Red River, in the spring of last year, and of which we have only received an imperfect report ; in short, any information you can collect on these subjects should be communicated to me, and I shall only make use of such part of it as may be calculated to serve our purpose. In regard to the proposed expedition to the Columbia, I conceive it to be as much a matter of necessity for the North - West Company to follow it up, as it is to prevent Lord Selkirk from establishing colonies on the Red River. If you do not oppose the Americans beyond the mountains, they will bye and bye meet you on this side; and even if you should ultimately be inclined to make an amicable ar- rangement with them, the only way to do so upon an inde- pendent footing, or to obtain good terms, is to have rival establishments previously forn;c(f in the country, on the; same footing as theirs ;^-our letter to the agents, transmitted herewith will more fully explain the views which the parties on this side of the water entertain respecting these matters, and our friend Mr. Donald M*Tavish will be able to give you every additional information that may be required. You may probably be surprised at our slow progress in V^o. business of the charter, but I assure you it has not pro- ceeded from want of zeal or exertion on our part. It is impossible that you can fully understand, or that I can, within the compass of a letter, explain to you the trouble and difficulty which attends applications to Government, or public bodies in this country; and I mention the matter not with the view of assuming any merit from the exertion required on such occasions, but merely in order to account ■'pj' i'iy^K itiiiiiiiiriir.^ ' ^^-^^^ . w^ to |e Is It If APPENDIX. 161 to you for the delays which wc frequently meet with,, and the disappointments to which we cannot help being some- times subjected. I am happy to have occasion to congratulate you on the result of the Beaver Sale which is just finished, and 1 remain with great sincerity, '•' Gentlemen, Your zealous friend, ' and faithful Servant, SIMON M'GILLIVRAY. To the Wintering Partners • of the North' West Company, Fort William, Fort William, I7th July, 1812. DEAR SIR, Your favour of the 9lh of April last, was handed us by the agents of the North-West Company. We entertain a due sense of the handsome manner in which you have commenced this correspondence, and expect in future that you will favour us annually with your ideas of the situation of affairs relative to the North-West Company on the other side the Atlantic, if from the urgency of your business we are deprived of the pleasure of seein*^ you the next summer. We are perfectly aware of the trouble you have taken since the commencement of the Earl of Selkirk's connection with the Hudson's Bay Company, to frustrate his attempts in procuring hands from the Highlands, with a view of destroying our commerce, and expect a continuation of the exertion of your abilities still to counteract bis measures, and all our other invducrs in time to come. We are very sorry that it is out of our power to throw any light on the situation of these people last winter at Hudson's Bay ; our remote destination precluding us from any manner of intercourse, or means of collecting a know- '^h^::^ 102 APPENDIX. ledge of the manner in which they have passed Ihe winter Under all circumstances, we will venture to say, 'that they must ultimately have offered much distress; at any event, theii^ provisions must have exhausted, so as to prohibit their creating us any annoyance for the present campaign. The supposed attack by the Indians, last summer, at their esta- blishment on Red River, was by no means of such a mag- niiude as to merit the attention of the " Highlander.** If anything of importance should come to our knowledge^ respecting their motions by our people, not yet arrived from the interior, you may rely on our communicating it. Your admission as a partner of the bouse of M'Tavish, M'Gil- livray, and Co. is highly satisfactory to us, as it adds a material link to connect and strengthen the chain of rela- tionship between us ; and though some of us have not the pleasure of being personally acquainted with you, we are far from being strangers to your character and abilities. Impres&ed with this idea, we cannot refrain from expressing our further approbation of any measure that may ensure strength and permanency to the establishment at Montreal. The returns of this year falls even short of the last, parti- cularly in the staple article beaver, and the cursed war puts us to a stand how to get our packs to Canada without im- minent risk. £very measure is, and will be taken. Refer- ing you for particulars to the agents, . : ^ We remain. Dear Sir, Your obedient Servants, John McDonald, John M*Donell, Donald M*Tavish, Allxandeb Henry, Pierre Rochblave, Duncan Cameron, James Hughes, David Thompson, R. M^'Kenzie, John M*Gillivray, Hugh M'Gillis, Ronald Cameron. Simon M'GilHvray, Esq, APPENDIX. 163 ■V'-v...: ..i:V-:;,;.r^ ..' ^ Examination of John M'Nab, ' , ' Western District,} Tut examination of John M*Nab, Sandwichy ciz.S late of Fort William, in the said Western District, gentleman, who appeared before us Fran' cis Baby, Jean B*- Baby, George Jacobs, John Askin, Robert Innes, and William Duff, Esquires, justices of the peace in and for the Western District, taken this SOth day of June, 1817, being charged on the oath of Jasper Vandersluys, and James Chisholrae M'Tavish, gentlemen, with having forcibly, violently, and by means of arms, en- tered a place called Fort William, in the Western District of Upper Canada, and being the principal post of a Com- pany of Merchants, under the firm of the North-West Company, with the felonious taking, stealing, and carrying away eighty-three fusils, of 'he value of two hundred an,d fifty pounds sterling money of Great Britain, on the 14;th uf August, 1817, of the goods and chattels of the Honorable William M'Gillivray, Simon M* 'ilivray, Archibald Nor- man M'Leod, and others, being the partners composing the firm of the said North- West Co.npany. > -'• - ' The said John M'Nab, on his examination, now salth, that on or about the I4th of August last, the Earl of Selkirk, acting as a magistrate for the Western District, issued a warrant ad- dressed to him and other , whereby he and others were com- manded to enter Fort William, and search for a quantity of arms, said to l)e secreted in some part of the said fort, that a quantity of arms were found in a hay-loft in said fort, to the number of forty odd, three of which he examined were loaded, and he h:^ reason to believe ^h". others were also loaded ; the loose guns were removeu *' ^'m the hay-loft to another apartment, and left there in the charge of Captain Matthey, io prevent any improper use being i .; e of them. ^ *j l> ■. ' *'•' rah *>■*' ]64 APPENDIX. That lite Earl of Selkirk had been informecl the night be- fore, that the guns in question had been loaded and secreted, for the purposes of being used against his Lordship and his people, that the said guns were inctuaed ia ihf inventory of the property ai Fort William sfbre^ii:], anil wei« left there, to be delivered to the Comiriissiojucrs appoir ,i- pany and the Nortii-W,?8t Company, and were taken pos- session of tlic 29th or -^Oih of Mvy last, by thft Honorable William M'GUlivray, and others, when he took possesshn of the fori, and all other the prop rty therein; that some of the said guns might have been uspd or 'Jjsp "'^d of, after the purchase made by his Lord^^inip, from Mr. Dat^iel M'Ken- wh cf all the 30th of June 1817, . Robert Innbs, John Askin, J. P. FnANcis Baby, J. P. W.D. GgOUUE JAOB, J. P. W.D. William Duff, J.P. W.D. J. B. Baby, J.P. W.D. A (rue Copy, (Signed) James Allan, C.P. Vv ^ .m- B €': APPENDIX. 165 [G.] J.cUt: from Sir John Sherbrooke to Lord Selkirk. , [._ ...,,V .J ... Cattle qf St. Lekvis, Quebec, SOth March, 1818. MY LORD, Upon a full consideration of your Lordship*s request, iliat 1 would instruct the Law Officers of the Crown, or re- commend to them, to avail themselves of the assistance of your Lordship's legal advisers, in conducting certain pro- secutions now pending here, for offences committed in tlie Indian territories, I did not feel justified in giving them any such positive instruction or recommendation, without pre- viously leaving it to them to judge of the necessity or expe- diency of such a measure. But in referring this point (o their own judgment and discretion, I had no hesitation in recommending to them to profit by the proffered co-operation of your Lordship's legal advisers, if they should think it would tend to facilitate the conviction of the offenders, or to promote the King's service in any respect. ' * ' * '*" ' ' ' I have now to acquaint your Lordship, that these gen- tlemen have expressed their readiness to use the assistance of your legal advisers, by receiving any information they may possess; — But that as hitherto all Crown prosecutions in Canada have been conducted by the Crown officers, and, as they are held responsible for the mode of carrying them on, they cannot allow your Lordship's legal advisers (o take a part in conducting the prosecutions, or in the examination of witnesses, unless they receive my positive instructions to (hat effect, — which instructions, as tending to divest them of a responsibility which they acknowledge properly to belong to them, I cannot, as I have already stated, feel justified in giving to them without their desire. I have the honour to be, My Lord, \o\ir Lordship's most obedient humble Servant, J. C. SHERBROOKE. The Right Hon. the Earl of Selkirk. I 166 APPENDIX. Zjdter from Lord Selkirk to Sir John Sherhrooke. Quebec, March 20th, 1818. SIR, I liaveto acknowledge the honor of your Excellency's letter of thiadate, communicating (he determination of the Law Officers of the Crown, on the subject of the proffered co'operation of my counsel, in the prosecutions now pen- ding, for offences committed in the Indian territories. The Attorney-General had previously plated verbally to Messrs. Stewart and Gule, who attended him as counsel fur the Hudson's Bay Company, the substance of his commu- nication to your Excellency; and these gentlemen concurred in opinion, that, unless they were to be allowed a full and free participation in the task of examining the witnesses, it would be impossible for them to render any material service to promote the ends of justice ; and that a co-operation so limited, as that which the Attorney General proposes, could serve no purpose but to load them with a share of responsi- bility for the management of the caase, without enabling them in any effectual manner to promote its success. It will be evident to your Excellency, that the exami- nation of the witnesses is so essential ;%#- APPENDIX. 167 t i« iritli the facts as the counsel of the private prosecatora. In the case that is now before the court, relative to the murder of Keveney, this is particularly exemplified ; for though the counsel of the Hudson's Bay Company have been in readi- ness both here and at Montreal, to communicate every in- formation that might be required from them, the Attorney and Solicitor-General hiwe been so fully occupied with other business, that it is only within these last two or three days that they found time to pay any attention to the case : and I know that within twenty-four hours of the time when the trial was to be opened, they had not seen some of the most material witnesses. — It will be a proof of very great exertion and an uncommon degree of readiness, if, with so short a preparation, these gentlemen can have qualified themselves to conduct the examination even of the witnesses for the pro- secution; and I conceive it to be utterly impossible for them to be prepared to cross-examine the witnesses for the defence. — I have reason to believe that the friends of the prisoners have obtained informatior; as to every iota of the evidence to be produced against then* ; so that if they should attempt, by means of suborned witnesses. ive a different colour to the transaction, they know exaci-y how to shape their story in the most plausible manner. This attempt might probably be defeated by an able and rigorous cross- examination ; but i* must be evident that without a very complete knowledge of the real facts of the case, no advo- cate can be prepared to detect a well-concerted perjury. Even in point of language, the Attorney and Solicitor- General are under a great disadva; ' •. > as neither of them is very ready in the use of the French language, and they seem to be totally unacquainted with the peculiar phrases and idioms which prevail among the peasantry of this pro- vince; so that it may admit of much doubt, whether their questions will be intelligible to the witnesses. In these circumstances, though I feel perfectly confident that there is evidence on the spot abundantly suIEcicnt, to 1 ' 1 . 168 APPENDIX. rstabliah (he guilt of both the prisoners, yet, I shall not be surprised if that evidence should be so imperfectly brought out, as to fail in producing (heir conviction. An acquittal under such circumstances may screen them from I .;' ,it, but cannot be referred to as a proof of their »n wociice; or as inferring any pr?sumption that the r barges have been brought forward on light or insufficient grounds. On that point I cannot feel any great weight of responsi- bility, as to the case 'hat is now under trial, as the bills of indictment f.^au mbt jear m the court of King's Bench at Montreal, and the Proclamation which your Excellency was pleased to issue thereupon, are more than sufficient to justify any part which I have had occasion to take in the business. But when I consider the principle which the At- torney-General has now laid down as tl.j rule of bis conduct, and look forward to the application of the same principle in other cases, I must be allowed (o say, that it will be the height of injustice, if the result of these trials, conducted as they are likely to be, should be refc/- ' to as a failure jn ni^ part (o substantiate the accusations that I have broug" forward ; and I flatter myself that your Excellency will not think it too much to represent to Lord Bathurst the impro- priety of his drawing any such conclusion, or making it the ground nf any determination as to the conduct to be pur- sued by Govern mont. I flaf't'r myseli ilso, that your Excellency may see fit io make a representation to Government of the very serious and alarming consequences which may be expected, if the prin- ciple now laid do^vn by the Attorney-General, should be ad- hered to, as a permanent ruk', for the conduct of the Law Officers of tl ; Ci'jwn in this provmce. The Attorney- General wLs, : sen ible that a diflferent and opposite rule is esfablikhcd in I'^nglaiiJ, — that private prosecutors are there at full liberty to employ their own counsel to conduct prosecu- tions in the name of the Crown : — and I beg leave to observe that if it were not so, the Law Officers of the Crown would ArPBNDlX. iGf) be inveate) with a power of the moit dangerous extent, no lew than that of affording impunity to any offender whom they might chusc to favor, however atrocious his crimes might be. I am too well acqiiaiuted with the honourable cha- racter of Mr. Uniacke, and persuaded of the integrity of his colleague, to suppose any possibility of their being guilty of an intentional dereliction of duty. But the confidence that i« reposed in tlie individuals who, for the time being, hold their situation, cannot, with propriety, be made the ground for a general and permanent rule as (o the duties of their offices; and it is certainly n possible case, that these situations might come to be filled by persons of an oppo- site character, who from corrupt motives might be de- sirous to screen a criminal of the highest order from the punishment due to his crimes; and how is this to be pre- vented, if the individuals who are particularly aggrieved by the8*i crimes, arc to be excluded from any share in the management of the prosecution, — if liie proceedings are to be conducted entirely by an officer, who may bring forward as little of the evidence as he sees fit, and may bring the prisoner to trial in such a manner as to screen him, in all time coining, by enabling him to plead " autrefois acquit." 1 cannot help observing, that the principle now adopted by the Attorney' -General, is not consistent even with his own previous conduct, as many instances may be quoted in which he has left the examination of witnesses to the counsel of the private prosecutors; and even as lately as when he was at Montreal, three weeks ago, he distinctly gave me to understand, that on the trials of Reinhard and M^Lellan, the examination of the witnesses should be con- ducted by Mr. Stuart, who, in consequence of that assurance, was induced to come to Quebec, — to no purpose as it now appears, though at the expense of great inconvenience to himself and to the business of his clients at Montreal. I conceive, therefore, that the determination which the Attorney-General announces at present, has arisen not from F-KfT^PBBIlW" 170 APPENDIX. (he conclusions of his own mindf bat from the rensoninfrs of others; and I think it rery unfortunate that he should have listened to these rensnnings upon an occasion like the present) viheti (he public are likely to be peculiarly jealous of any thin^ like n denial of justice. It is well known to the whole province, that a long (rain of atrocious crimev, of which (he murder of Keveney is oneex * Of the witnesses who are to be called upon in these (rials, the greatest part are unacquainted with the English language ; And your Excellency is aware that the French is understood by very few in Upper Canada. In this province there is no difficulty in finding rekpectnble jurymen, who are familiar with both languages ; but at York, the testi- mony of the witnesses must be conveyed to the jury, through the unsatisfactory and uncertain medium of an interpreter. Under such a disadvantage, evidence of the most decisive nature may prove of no etToct. 1 beg leave also to observe, that the scale of society in Upiier Canada does not aiTurd the same probability as in this Province, that the verdicts will rest with men who are competent to the task of investi;;ating an extensive and complicated train of evidence. Even the capital of that Province is hardly more than equal to an English village; and, without any disparagement to the character of its inhabitants, it would be unreasonable to expect '' *" town of so very limited a population, can furai^ ,. .r\v jury- men equal in point of intelligence and indt .jc (•< Sose which are to be found in places of sucl ci: as -i .t)cc or Montreal. It must also be evident, that the transfer of the proceedings to a distant place, and a different jurisdiction, must inevi- tably occasion delay. Experience already proves, that the Act of Parliament which authorises the transfer, is wanting in several necessary detaib, as to the mode in wbich the pro- ceedings are to be transferred ; and in the attempt to carry its provisions into effect, a number of technical difiiculties have been suggested, upon which the Iaw Officers of the Crown in the Upper Province, appear to differ in opioioa 4,-^' ^i..««ar*fc.w»**'''-^ ~ 172 APPENDIX. from those of Lower Canada. From this there arises a de- gree of embarrassment which could not haye been foreseen ; and whatever may be the mode ultimately adopted for re- moving these difficulties^ it is evident that a very pernicious delay must intervene ; so as not only to add to the expense of the business, already enormous, but also to keep the witnesses exposed to temptation, and to tlie risk of being tampered with. The great interests which are at stake on the result of these trials, the opulence of some of the parties, their well-known activity and address, and the whole tenor of their general conduct, point out the probability that nothing will be left undone that can tend to influence the witnesses and the jurymen. There is yet another consequence of delay, which deserves the most serious consideration. The Canadian voyageurs in the interior, have long been impressed with the belief that the power and influence of the North- West Company can secure their servants from punishment, whatever may be the magnitude of their crimes ; and this impression is too strong to be removed except by some striking example. With a view therefore to the (leace and security of His Majesty ^8 subjects in these countries, delay involves, in a great degree, the evils of an absolute denial of justice. In the cases to which I allude, I am confident that no good reason can be alleged, for a transfer to Upper Ca- nada on the ground of the residence of the witnesses. If any such allegation should be made, I trust that my counsel may have an opportunity of answering it before a determi- nation is taken. I fle ^self that your Excellency will not deem thif an unreasonable request, or object to the propriety of my interfering as a private prosecutor. It is certainly true that all prosecutions for criminal matters must be carried on at the instance of the Crown, and that in strict law no other party is considered as interested against the prisoners; yet in practice the Law Officers of the C^awq can seldom with e^-^-^i ). APPENDIX. 173 r"**^^ propriety} decline the assistance of those individuals who are most interested in the panisbment of the crimes, and in most cases, the cordial co-operation of such indiriduals is essentially necessary, for the successful detection of guilt. In the cases now in dependence, this principle is of peculiar importance, on account of the extraordinary extent of the conspiracy, which has been brought to light, the profound artifice with which it has been carried on, the local cir- cumstances which combined to render detection extremely difficult, and the complicated bearings of the evidence by which detection has at length been effected. The mass of evidence is so voluminous and intricate, that without a long and attentive study, it would be impossible for the most able advocate to do justice to the cause; and it cannot require much comment io point out the consequences of taking such a cause out of the hands of men who have devoted their attention to it for two or three years, and transferring it io others, to whom it is entirely new. In addition to this, your Excellency is aware that His Majesty *s Ministers hold me responsible to substantiate the accusations which I have brought forward; and also con- sider the result of these trials, as bearing in a most essential manner on questions in which I am directly interested. In these circumstances it must evidently be extremely unjust to withhold from my counsel that co-operation on the part of the Law Officers of the Crowna which is necessary for the success of the prosecutions. In Upper Canada, however, it seems to be highly pro- bable that no effectual co-operation can be obtained. The bar of that province consists of a very narrow circle ; and the North- West Company have found means to retain almost every individual of any standing or eminence in the profession, not excepting the Law Officers of the Crown. At the same time, the barristers claim a right tp prevent any advocate from appearing at their bar, unless they chuse to admit him into their society ; and they seem disposed to *t»^- 174 APPENDIX. exercise that right at present, so as to exclude any of my counsel from this province. The business would thus be left entirely in the hands of the Lnw Oihcers of the Crown ; and, however^ much they may be disposed to do their duty, they have not hitherto had any opportunity, and cannot now have time to examine the evidence with that continued attention, which its vast extent requires. Even in this Province, my counsel have at times been refused that co-operation which justice would have re- quired ; and, on a late occasion, the authority of the Law Officers of the Crown has been used for the purpose of directly counteracting the prosecutions. A short time before my arrival here, some of the prisoners who were in custody, in consequenf^c of bills of indictment against them, applied to be admitted to bail. Mr. Pyke, who acted on the part of the Crown, agreed to waive the bills of indict- ment, — a procedure exceedingly rare in any part of the Empire, and for which I am informed no precedent can be found in this Province. My counsel attempted to state some reasons against so unusual a proceeding, but was in- terrupted and informed that the court could not recognise any private prosecutor. Hut if Mr. Pyke had previously announced his intention to waive the indictments, ray coun- sel would have been prepared to produce affidavits of such factS; as must have been decisive in preventing the measure. The culprits were notorious offenders, who had been en- gaged in a great variety of atrociouii crimes, besides those for which tiiey had been committed ; new warrants were immediately obtained against them, but within two or three hours after their liberation, they were no longer to be found. The amount of their recognizances can be no object to their employers ; and if it is thought advisable, tiiey may easily go beyond the American lines, and find their way again into the interior, where their escape will be quoted as a confirmation of tiie infamous doctrine, that the North- West Compafiy have stich unbounded influence with Government APPENDIX. iy5 \_ as to secure impunity for any crime nvhich hiay be com- mitted for their benefit ; — an idea wbicb is not confinhl to the Indian countries alone, and which derives but too much plausibility from circumstances that have occurred, ^ven in the course of the proceedings that are now pending. I am fully persuaded, that if the Attorney*GeneraI had been present in person at Montreal, on the occasion to which r have alluded, he would have called for the assistance of my counsel, as he has usually done on similar ocdasiond, so ta to authorise his interference. Bilit the circumstances which fv6tually occurred, are sufficient to shew the danger of trusting a matter of such consequence to mere courtesy, or to the prevalence of a custom, which one person may observe, and another may disregard. — I trust, therefore, that it will not be imputed to any feeling of a personal nature, or in the smallest degree disrespectful to the Attor- ney or Solicitor-General, if I request that your Excellency will convey to the Law Officers of the Crown a general recommendation, that in all proceedings relative to the trial of the charges brought against the partners and servants of the North-West Company, they should take the assistance of my counsel, and give all due weight to their advice as to the mode of conducting the prosecution. I have the bono: to be, • • - '-^ ' ' Your Excellency's * • Obedient, humble Servant, SELKIRK. His Excellency Sir J. Sherhrooke, i . ■ , , !/ [ I. 3 Letter from Lord Selkirk to Sir J. C. Sherbrooke. Montreal, April ISth, ISIH. SIR, I beg leave to lay before your Excellency severf»J petitions from persons against whom bills of indictment have been found at the la(e term of the Court of King's •.V.-'^a^.l'it... ^ 176 APPENDIX. Bench at Montreal, praying that their trials may be brought on at tbe adjourned Session of the Court of Oyer and Terminer in May, instead of laying over till the next crt- Qotinal term of the Court of Ki"g*8 Bench in September. Your Excellency will observe that these petitioners are, for the most part, the same persons wiiu, in September last, werd ready and anxious to take their trial, but .?ould not ob- tain a hearing, because Mr. Justice Ogden, and Mr. Justice Reid, declined to sit upon any trial in which the North> "West Company bad an interest. -Your Excellency will rccoiiect that the persons concerned having stated the hard- ship of their case, and that, in the actual circumstances of the Court, they might be kept fur an indefinite time under the load of accusations to which they could have no oppor- tunity of answering, — your Excellency was pleased to issue the commission of Oyer and Terminer which opened at Montreal on the 31st of February last. . ^^ . From the public notoriety of the circumstances, under which this commission was granted, and of 'he fact that no change had occurred in the state of the Court of King's Bench,no doubt was entertained that all matters of a criminal nature, which had arisen in the Indian territories, would be brought before the Court of Oyer and Terminer only. Yet no steps were taken in that Court for bringing on the trial of those offences of which the Court of King's Bench had declined to take cognizance, in the case of the parties upon whose petition the commission had been issued ; — and, immediately after this Court had adjourned, a number of new biiJs of indictment were preferred in the Court of King's Bench, against the same parties, and upon matters of tb very same nature, as those of which the same judges had deckined to take cognizance in Sep . mber last. These in- dictments were laid before a Grand Jury, composed in great proportion, of partners of the North- West Company, or other persons connected with them in pecuniary interests, — persons whom the Sheriff declared, in open Court, that he had placed upon the Grand Jury iu the persuasion that no -— - , I APVENDIX. 177 imrtter connected wich th« diffirrences be£nreen (hat Company, and tbeir antagonists could have come before the Court at that terra. " ' •'• ^v ^x-.^j vr:..'. • ih ..j :■"?::; •■.;: It was bjr a Grand Jury so composed that these bills of in- dictment were found ; ant! several of them had been thrown out but a week befort in the Court of Oyer and Terminer, by a Grand Jury on wbioh there was not a single individual who bad the remotest ini ^rest in the matters before them. It cannot be passed over that the bills of indictment preferred with so little propriety, had the signature of the Attorney-General. That officeri howeyer, could not bo ignorant of the circumstances rbich bad led your Excellency ia ijsue the cumm'siiion of Oyer and Terminer ; he must hare known that by the spontaneous acts of its own Judges the Court of King's Bench had disqualified itself from taking cognizance of such cases as those in question, and that, in issuing the commission of Oyer and Terminer, the Govern- ment of the Province had acquiesced in that determination of the Judges. Neither could he be ignorant that the Grand Jury, was, in part, composed of persons who were interested in the questions io be brought forward. In. these circum- stances, it must be considered as highly improper, in the Law Officers of the Crown, to lend their sanction to any bills of indictment for matters of that description, to be brought before jurors who were parties, and presented to a court which had declared its own incompetency to talce cognizance of them. — It appears indeed (hat one of those who made that declaration, (Mr. Justice Reid,) did, in the last terra of the Court of King's Bench, express his intention of sitting upon some (rials, in which it is well known that the North-West Company feel, at least, as much interest, as in those on which he declined to sit in September last; but are these Judges to be allovTcd to recal at pleasure the determinations which they have announced as (he rule of (heir conduct, to v/ithdraw from the bench, or to resume their seats, just as it may suit the purposes of their friends— or is the inconsistency, and 5 B "^•r ■>**: '*^, I 178 APPBMfilX. misconduct of the Judges to be taken as a precedent, and a justification for equal inconsistency and impropriety on the part of the Law Officers of the Crown f When the circumstances, in which these bills of indict* ment were preferred and found, are fairly considered, I flat> ter myself that your Excellency will not feel much difficulty inbelievingthat the charges are altogether vexatiouS| and have been brought before the Court of King's Bench, rather than that of Oyer and Terminer, only that they might remain the longer undetermined. Many of the parties are not inhabit tants of the Province, and, though enlarged upon bail, can* not return to their families or their proper occupations, till the trials are over; and it is for the interest of the North- West Company to prevent their reBuinlng these occupations. A delay even till September would occasion the waste of another season; and that deiny might very probably lead to still further protraction of the business. The parties are most anxious to have the matter brought to issue, so as to have an opportunity of establishing their innocence; and your Excellency must be sensible of the injustice of keeping the accusations in suspence any longer than is unavoidable. Upon the whole I trust thert: can be no doubt of the pro- priety either of directing the Attorney-General to enter a noli prosequi absolutely, as to all the Indictments, which have been found in the Court of King's Bench by Grand Juries on which there were any interested persons, or, at least, of giving directions that all the bills of indicment now pend- ing before the Court of King's Bench for matters that have arisen in the Indian territories, shall be brought to trial without delay in the Court of Oyer and Terminer. Surmises have been thrown out of an intention, on the part of the Attorney-General, to propose a new commission of Oyer and Terminer, to supersede that already appointed at Montreal, so as to remove all these trials to Quebec. — But I trust that your Excellency will not sanction a measure so op- pressive to the parties, who would thereby be subjected to the 1 'i r^K i '^ \ APPKNDIX. 179 expense and inconvenience of quitting their present residence) and of conreyin^ themselves, and the witnesses for their de- fence to a distance, after having raade all their arrangements for a trial at Montreal. ; '• ; .#.,,., S I understand, that, as a ground for this proposal, it is said, that party spirit is so prevalent at Montreal, and that preju- dices run so strongly against the North- West Company, that, an impartial trial of the cases now in dependence could not be expected. I trust, however, that your Excellency will not adopt any practical determination, upon such a fanciful alle- gation, advanced without the shadow of proof, and destitute of all intrinsic probability. All the prejudices that arise from feelings of interest, or from long established connection, must operate at Montreal very strongly in favour of the North- West Company, and not against them. There is, in truth, a party at Montreal that take a vehement interest in the success of the North- West Company; but there is no party against them. There is, however, a large body of inde- pendent citizens, and a respectable yeomanry in the district, so entirely unconnected in interest, either with tlie North- West Company, or their adversaries, that there cannot be any difficulty in finding an impartial jury ; and it would be a libel on half the Province to suppose that such jjaen, when put upon oath to give a true verdict according to the evidence, would form their judgment upon any preconceived notions. This may apply equally to the cases which the North-West Company have brought forward as prosecutors, and to those in which their partners and servants are charged as culprits. As to the latter, the juries of this Province appear to be in general much more apt to err from an excess of lenity, than the reverse; and nothing can be more im- probable than that a jury of ordinary respectability at Mon- treal, should give a verdict of guilty, in a matter of life and death, without sufficient evidence. 1 Upon the whole, it cannot be considered as a matter of trifling importance to remove the trials in question from the ^^ ^' L t1 V, sSm %.. m jaH»u§> j^riidietion, where (he pttrtina and the witiMMettreRetwnf iwiiAaA^ cipeciftlljr as the recalling of the «cisting comdite* «km ofOytT and T lii»aii wi' w i i iiiii» under anjpeircinBtteiMii^ licar some appeatance of inconsistenoj and vaccillatioa; and, nAtm eombined with the pnnth onduct of the La# Oflkmn of the Croiro, covid not bat a^vme the character of intentional injustice.— l hA coafldent, therefoie, tha^ •och a propoMl oaaaeC l» Mpportecl upon anj mifteiest grounds. ^ • > I have the honour to be. Your Excelleiicy'i Oi^ient humUe SecTant, SELKIRK. 4ii« JEroaUsiKy Sir J. CSAa aeke, Sfc. tfc, Itc* >'.at* iuui^syr. ■ FINIS. ■f ■ :? ■ "^ PriaiUi^J.tintuU, ^^T'^ A ■^ 5'^'^J t . ■ ^