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Les diagrammes suivants illustrent la mAthode. 1 2 3 1 2 3 4 5 6 a At FROM PR] 4 ajL^^at,-- yr REPORT at -m -«*••»» J-- ■^ THE TRIAIiS OF Ay f- CHARLES DE REINHARD, AND ARCHIBALD MXELLAN, " mm MIJBBEB9 u« a Court of Oyer and Terminer^ HEZ.D AT QUEBEC. t JVJF 1818. % PROM MIRUTES TAKEN IN SHORT-HAND, UNDER THfi SANCTION OV THE COURT. MONTREAL : PRINTED BIT JAMU X.ANB AND NAHUM MOWBR. 1818. i, i ^A dkke PC m r; c J?L 1 1 So -f Introduction. ^f»9^lf!fli It is riecegsary to state a few facts^ and offer k few remarks, as a preface to the trials at Quebec of Charles De Reinhard and Archibald M'Lellan, of which the following pages contain a report as taken bj a short-hand iyriter under the sanction of the Court. In the March term of the Court of King's Bench for Montreal^ 1817, an indicttnent was preferred and found against Charles De Reinhard^ Archibald M'Lellan, Cuthbert Grant, and Joseph Cadotte, for thie murder of Owen Kevenj* De Reinhard was sent down from the Upper Country by the Commissioners (see Mr. CoUman^s evidence, page 353,) in the isummer of that year, and M'Lellan^ Grant, and Cadbtte c^me down in the fall, and all four were committed to prison. At a Court of Oyer and Terminer held at Montreal in the month 6f February following, an indictment for the same pfTence was likewise preferred and found against Francois MiainTille, and Jean Baptiste Desmarais, half-breeds, and against Neganabines, (the son of the white partridge,) commonly called Jose, or Joseph, an Indian. Mainville, who was in custody of the party who had charge of M'Lel- Ian, had preyiously made his escape at Point au Tonnerre, in lake Superior ; and Desmarai^ and the Indian had been brought down as wit- nesses, prior to their being indicted, as appears in IV ibe cyurse of Mr. Coltmtn^s examination oh the trial of M'Lellan, p. 120, et seq. At that Court of Oyer and Terminer, however, the trials of the four persons ip\fho were then in custoelj were not brought on ; and in the ensuing term of the Court of King^s Bench at Montreal, which com- mtnced on the first of March, 1817, they de- manded their trials ; but the Attorney-General then refused to bring them on, assigning as a rea- son that the prejudices existing in the district of Montreal, occasioned by the publications on the one side and on the other, on the subject of the disputes betweea the North- West and Hudson's Bay Companies, with which these causes were supposed to be connected, were such as to induce him to represent to the government that justice both to the Crown and to the individuals accused, required that these trials should be held elsewhere, where impartial juries could be selected* . The four prisoners were accordingly removed to Quebec; and in the Court of King's Bench there, fresh indictments were preferred against them, but the grand jury found a true biU against Pe Reinhard and M'Lellan only^ and returned no hiil against Grant and Cadotte. The two former were in consequence put upon their trials jointly on the 30th qf Marck During that and the next day the proceedings went on, but on the 3 Istv 'to- wards the close of the day, it became evident that, so far from the trial being capable of being com^ pleted by twelve o'clock at night, the period when the fbnctions of the Court would terminate, (the aassion being limited by the Provincial Act, 34 G«o« HI. c. 6. commonly called the Judicature Act, to the last ten days of the month of March,) not Aien the evidence for the Crown could be gone tbrough. It was therefore proposed by the At- ^ney-General, and consented id on the part of ■ / the prisoners, that a juror bhould be withdrawn, .which was done, and those proceedings wefe thus quashed. The main substance of these previous incipient proceedings just alluded to being to be found in the subsequent trials io May and June, it is only needful to give an outline of them. After the prisoners had been arraigned, and had pleaded Not Guilty, an ai^ument took place on %he motion made by Mr. Vanfelson, counsel for the defence, that the witnesses should withdraw, which not occurring at the subsequent tlrials, it may be proper to present entire. *^ JtUom^'€reneral.''-^Thi8 is most certainly a singular proposition, and one that the prisoners are by no means entitled to. " Mr, Stuart, — ^It is a privilege to which the pri- is'oners are entitled, it is their right, and we must avail ourselves of it, for this is no time for courtesy. ^' Attorney "Generai^—'li is not a matter of right ))elonjging to the prisoners, nor does the granting or refusing the application at all affect Sie case. There^re ik) Couit a number of gentlemen, ma* gistrates and crthers, who, from their official situar tiond, becoiQe evidence? in thi? case. CaQ it b^ * necessary, for the justice of the case, that tkey «hould b0 ordered to withdraw ^ I can see no rea- i^on ibr it. But the learned gen A^man urges it as the fight of the prisoners, which ir is not. It i^i a right inseparably from the olQiccre of the Crown, and, when applied for on behalf of the prisoners, visually assented to on the part of the Crawn, and it should be in the present instance, if the jus- tice of the case would be one- tittl^ promoted by so doingl The witnesses in Court are principally my Lord Selkirk, and gentlemen to wnom it can not be imputed that the justice of the case would be at all influenced by their resaaimng in Court., • '*. #■ f^ Mr, (S^£ar/.-— That is a point upon which Tve, as being most interested, must be permitted to judge, and wc consider it essential to the defence of these gentlemen, who are charged with no less a crime than murder, that the witnesses on th^ part of the Crown should not be preseqt in Court during the examination of the evideijce. ^^ ^Uoimey-GeneraL — r submit that, there being no caus^ for such a procedure, these gentlemen ought to be permitted to remain in Court. What effect, for instance, can m^ Lord Selkirk^s remain- ing in Court have upon his evidence? or how can the magistrates who are to prove depositions, &c. or thosd gentlemen who are to prove the locality of the pl.ape, be possibly influenced bj I'emaining in Court ? > ^ ^^ Chief Justice SeweU. — ^Whatare these gentle- men and my Lord Selkirk to prove ? The lacts of the murder, or the locality of the place ? ' ''^ AUomey'GeneraL — I shall use my Lord Sel- kirk as a magistrate before whom depositions have been taken. I mayialso use him to prove other circumstancea of the case. I do not know that I am bound to say for what purpose I may produce ioy Lord Selkirk, or any otner witness. '^ " Mr.Stm>Tt. — The uniform practici^ of all crim- inal courts is that the witnesses are not permitted to remain in Court if the objection is made, and we make it. *' Chief Justice Setvelk — I can not say that, Mr. Stuart, I can not say that it is the Uniform practice to put magistrates out of a Court of Justice. ** Mr, S/ttar/.-^lt is as far as my knowledge of criminal law extends, and I an) surprised that it ihould have been objected to oh the part of the Crown in the present case. For lyhat benefit can it be to the Crown that its witnesses should re* ^D in Court?. 4h< Vll .^ ChdefJuilieeStweU, — That is a point on which ♦the J must jud^s. " Mr, Siuari.-^The evidence to be produced by these gentlemen consists of documents of the most important nature, and they may have been obtain- ed under circumstances which entitle them to no credit. The supposed innocence and impartiality of persons before whom they have been taken or by whoni tfeey have been obtained, nlay be contra- dicted. It may perhaps be made to appear that they have been bbtained under a hope or expecta- tion of reward, through promises, or under fear^ through threats: I submit that if eVer there was a case in which it was requisite for the cause of justice that all witnesses should withdraw, thif is It. A ca^ with which the feelings of anoth^i^ di- strict are so connected that the public prosecqtor haslcledared he could not try it with saiety. 'Di>- cuments the most important have been taken be- fore my Lord Selkirk, who can not be separated from the case, and we ou&^t iiot to be placed in «t situation to increase the difficulty of proving any part oif our cise. ; >|?»^j ^^^ Chief Justice SeweU, — :We should bo "sttrry, very sorry, that the prisoners should be deprived of the smallest' degree pf their right. Nor would we, if their interests were aflfectedby it in the most remote manner, hesitate to grant the application of their counsel, but really wei do not See that any evil can result from withholdibg it. '^^ Mr, Stuart^ ask it as a matter of riyit^n behalf of the prisoners, that the witnesses &b or- dered to withdraw. . */ /f v - " Chief Just, SeujeU, — Mr. Stuart, I can not do so. " Mr, Justice Perrault, — ^In order to remove' all difficulty, could you not examine Lord Selkirk first.'* f suppose there would fee no objection to his being present in Court after that. ■ . A .- Vlll " Chief Justice Sewell — Yea, t'.ey could do that : the ffentlemcn, however, have most judiciously ro- tii!ea of themselves, aud there the subject ends/* The Attorney-General then opened the case to the jury, and was followed by the Solicitor Gene- ral ; it being claimed as a privilege of the Crown, for both to address the jury, if they deemed it ex- pedient. . The honourable Wm. Bachelor Coltman, Colo- nel Bouchette the Suryeyor-General, and Samuel Gale, Esquire, were then examined as to the geo- graphical position of the Dalles, and the bounda- jfie« of Upper Canada. The;jr were followed by Hubert Faille, whose examination lasted the great- er part of that day. At the close of his examination, and when Jean Baptiste La Pointe was called, the Chief Justice observed that if any other witness was examiBed it must be one whose testimony would be a short one, which he did not suppose would be the case 'with La Pointe, as pe^ther the bench nor the jury could undergo at that late hour the;, fatigue of a long examination. It was however found that, pppn hearing La Pointe called, and knowing that his eyidence wouM occupy a very considerable time, all the other witnesses had gone away; whereupon the Chief Justice said, ^' We can not '^ take this witness, for if we bedn with him we '^ can not avoid finishing his evidence. We will ^^ also mention that it will be desirable for the <^ gietitlemen engaged in this cause to be prepared *^ to shew us, in the event of its not being finished *' by twelve o'clock to-morrow ni^ht, what course ^^is then to be taken. We mention it to all con- «' cerned, the gentlemen engaged on the defence '•*' as well as the officers of the Crown, that the ^' point may be taken into consideration by them, «' and they may be prepared. It ipay appear that IX ** the prisoners have rights in that case, as well as " the Crown. We mention it thus sarlj, for our '^ functions terminate at twelve o^cIock to-morrow ** night." % The next day Jean Baptiste La Pointe was exa- mined. The material differences between Faille and La Pointers evidence on the first and second trials are noticed in Mr. Justice Perrault^s examination, p. 373 et teq. of De Reinhard*s trial ; with perhaps the following exceptions. In Faille^s evidence in March he stated as a reason why they did not like to take charge of Keveny, ^^ Je demandois un fusil^ mi " des armes^ parcegue fuvois entendu q\Cif avoit tu6 ^^ divers hotnmes, main monsieur Maedonell les re- ^^fusaJ*^ *• I asked for a gun or arms, because I ^^ had heard he had killed several men, but Mr. *^ Maedonell refused thcui ;'* which he omitted to state on his second examination, as was likewise the case with respect to" nnc redingolie picnd^^ ''^ 9. ♦' Scotch plaid cloak," with which, on the first trial, he stated the Indian, Joseph, was covered, when Mr. M'Lellan^s canoe arrived at the island where he and La Pointe were. La Pointe in recounting the manner in which Mainville spoke of the death of Keveny, makes, in the first instance, Mainville say, " Ve Rtinhard vouloit faire emharquer mon- " sieur Keveny brutalemeni. Que Keveny a dit^ ' je " ' suis malade monsieur Heinhard, pourquot mc " ' traiiez vous de meme.^ Monsieur De Reinhnrd ^^ alors lui enfonga son epie dans le dos. Que lui^ " Mainville^ lui tira une balk dans le col aver son ^^ fusil, et De Reinhard coupa son jppaulc, avec le " mb/e, et le tua,^'* " De Reinhard endeavoured <' to make Keveny get into the canoe ib a violent *^ manner. That Keveny said, M am ill, Mr. " ' Reinhard, why do you use me so?' Mr. De *^ R^nhard then run his sword into his back. ^^ That he, Mainville, discharged a ball from his ■■■] \ 1*? f^ gun into his neck, and De Reinhard cut hh f^ shoulder with his sword and killed him ;*' whic^ does not agree with his iestimonj in that respect on the second trial. Finally, in the notes of M)r. Simpson, the reporter, (vide his exainii|iation, p. 390,) La Pointe is stated to have said on the first trial that De Reinhard '^^ pairloft frongois comnu *' tin Meuron^'* ^ sp(^e French like a De' Meuroni ^' soldier,^ i. <^. not good French^ although it ap- pears from Mr. Justice Perraiilt^s evidecice,* that that expression yiras not taken down hy the Courts Captain D^Orsonnens was then sworn,^ hut hit exammation had not continued a long while, before the proceedings were piit an ei^d to; the onlj material circumstance that appeared beyond what occurs in the present reports, was the production to captain D^Orsoimens, and ackiiowledgemenit by him, of the order, or summonsy pfwhiclfthf^ following is a copy : — • . r *' Du Portage du Lac la Pluje, le6 0ctobr«, 1816. ** Monsieur, ** La sure^e personnel des sujets de ^' sa Majesty, exige, cr,ainte de surprise ou acci- '' dent que vous me remetti6s toutes les armes, ^^ ammunitions, poudr^, plomb, &c. &c. &c. que ^^ voUs passed^s au Foirt, et qui appartiennent a " la Comp. Nord-Ouest— les armes particulieres *^ seules seront respect^es pour votre propre ** surete. " J'ai I'hbnneur d'etre " Votre tres humble et ^^ " Obeiss. serviteur, " Capt. P. D'Orsonn?ns. " Commdt. Tavant garde des " Vpyageurs de la Comp. *' d'Hudson, &c. &c. &c. XI [^ p. S. Les picquets seront rate par mes gen^y t^ les votres peuvent les aider si tous le trouv^s t^ expedient. TRANSLATION. M From the Portage of Lake la Pluiei tb^epctr. 1816. Sir, ^' The personal safety of His Majesty^s f' subjects, requires, for fear of surprise or acci- t^ dent, that jou should deliver to me all the arms, t^ ammunition, powder, shot, &c. &c. &c. which f^ jou have in jour possession at the fort, and *' which belongs to the North West Company. — f' The arms that are private property will alone ^' be respected, for your own safety, 't I have the honour to be, T . t' Your very humble and ' Obadt. ser\'ant,' i Capt. P. D'Orsonncns. *' Commg. the advance guard of " the Voyageurs of the Hudsoa'c " Company, &c. &c. &c* « P» S. The pickets will be cut down by nij t' people, yours may assist them, if you deem it " expe(ngIou.— -An Englishman, the English, but applied exclusively to the fervants of the Hudson's Bay Company, whether English, French, or Half-breeds, in contradistinction to the fur-traders from Cana- da, who are called Fran^ou^ of whatever country or language they i^ay be. Arpent (ai a measure of length.)— 1^0 French feet. Anronf^A paddle. Bam, 6aiVe de canot.— 'Bar of a canoe, a term applied both to tha thwarts ^hich stretch across a birch-bark canoe, and to the spaces between tiiose thwarts. Bireh bath.— The ms^ial of which the canoes are made : birch bark mop, (vide p. SY.) tbe Indians frequently use the birch bark to deline- ate dieir rude maps upon ; sonietimes jslso dresKd buffaloe hides, oa which they paint sketches of their war and hunting excursions. Bau brulis.—See Half-breeds. Sowrgeois. — Blaster, employer ; applied both, specially to ttie person (whether partner or clerk) who has the command and superintendenqfs of a trading-post, or of a canoe, andr generally, to persons ranking as gentlemen, or above the class of servants. Bouf.— See C«fio(. * ^rigade.'—A fleet of canoes, bound to or from a particuHar tr^ding^post or department. Bufln.-^Things, goods, clothes, articles, every kind of personal pro- perl;^. Coefte. — ^A hiding place, likewise the thing bidden; a hidden hoard ; a place (generally under ground) where provisions and other articlea are hidden in the woods, or on the banks of rivers, to reminin till the next season, or the return of the party to take them up ; en cache^ so bidden. €aeAer.--To secreie or hide in'such places. CSsge. — A raft. Cajeui. — ^A small raft. Canoti — A canoe : the craw of a canoe go under the diflerent denomlns^ tions ofbfiuts, milieux^ detanty and gouvernail : bouts^ ends, are those, who paddle at the stem and at the stern, he that is at the stem is cal- led the dewantf or foreman, and takes the command, unless a guide be on board; he that is at the stern steers the canoe, whence be is called the gcuvemaitj or steersman ; and all t^ose betv/een the stem and stern are milieux^ or middlemen : the wages of the bovts sm9> higher than those of tha milieux, or middlemen. XVI I! l> I ! ..li Capotr^A great coat t <:apot it touvtrtt^ blanket great coat, one made out of a blanket. Carabine.— A rifle. Chaudurc. — A kettle ; used also to denote a sufficiency of provisions to supply one meal to the party ; fain la chaudiere, to cook victuals. Comet/. — A counci^; generally applied to the formal meetings between parties of Indians, or between the tradeVs and Indians. Dalle. — ^A spout, narrow but deep channel. Devar/men/.r— Portion of country, the trade of which is placed under the special management of one or more partners or bourgeois. .D«ron/.— See Canot. Engage. — An engaged servant ; applied specially to the Canadians who engage as voyageurs or voyagers for a term of years in the service of the fur-traders. Equipement — Eauipment; the clothes and other articles (umished yearly to the cleiics and servants uf the fiir-traders, every individual in their employment receiving an ecjuipment proportioned to his sta- tion. Esperer, — Besides its proper sense, to bope, to expect, this word is constantly used to signify, to wait, to stop ; etperea un peu, wait a bit. • FoUe avoine. — Wild rice, Indian rice, a species of rice that grows in a« bundance along the rivers and lakes in the North West; literally translated, wild oats, but the grain has no resemblance to oats, and is in faCt rice. Fort. — iTbe trading poi^s are always called forts, though in general no otherw^ise fortified than by being placed in a Muare inclosure formed ■ of palisades or pickets; indeed every house in the Indian country is called a/ort. Frune, ad;.— Superior, applied to things the best of their kind ; dupois" son/ranCy fish very good to eat ; du bois franc, hard wood, the fittest wood for durability, the best for firing, &c. U park f rant, he is a good speaker, be speaks distinctly. FranCy subst, — ^A livre. "i Franfois.-^A Frenchman, the French, but applied exclusively to tbe Canadian fur-traders, of whatever nation, to distinguish them from the traders who come from Hudson's Bay, and who are Called, Ai^' hity English. JFVeetnen.— -Canadians and others (not Indians or Halt-breeds) who n»> side in the Indian countries, as hunters, fishermen, or farmers, and are not engaged serm the connection a»*» xvu of Earopeans or Canacliftbs with the Indian iromen. Theie appella* tions aro all (tynonymoua. The first is the English one ; Met^^ is a corruption of the Spanish Meitice ; and the term of Bou-tru/e is said to be derived from tpe sallow complexion of the half-breeds beine com* paredto the appearance of a forest of fir-trees that had been burnt* an occurrence freouent in those parts, and which assumes an ani- • versal brown and aingy colour. Harvard. — An outhouse of any description, whether a shed, a pent- house, or a closed store, in which goods are deposited. Htvernentln/.— The wintering at a trading-post. Hommts litres. — Freemen ; see Freemen. '.Ltrre.— A livTe North West currency, ij double the currency of Cana^ da. One livre, N.W. being equal to two livresor francs in Montreal. Mangeur dt Lard. — Those engages who only go to Lake Superior, and return to Montreal in the fall ; also those engaged to winter who are novices, and winterers for the first time ; literally perk eaters, on ac- count of that meat being the principal food of the Canadians, until they get into the interior, where there is none, and they must do without it. Marche, martli, aday*s marc/t.— The distance a canoe goes in a day, (see p. 99 of M'Lellan's trial.) Marron. — A^eierter, a runaway. Milieu. — See Canot. .Mitifs.-~See Half-breeds. iVbger.— To paddle. Nique.—A nest ; applied to the bar of a canoe, the bar next to the steersman. North Canoe. — A canoe calculated for the shallow rivers, and difficult navigation of the^ interior ; it is about half the size of a Montreal ca^ noe, or one used in the navigation between Montreal and Fort Wil- liam. Pemtcan.-- The meat of buffaloes, or ntoose deer, dried and pounded ; mixed with grease or fat, it is generally put into bags made out of the bide, and called Taiireaux : it is the universal article of food a- mongst the engages, half-breeds and Indians in the North West, when travelling in the open season. Per^ie, perehe de cano/.— -The perch, or setting pole, .of a canoe. Piese. — ^A package made up for the North West, weighing about 90 lbs. for the convenience of carrying across the portages. Portage.— A carrying place. Prairie. — A kvel tract of country without wood. ' JRa^Kef/ej. — Snow biioes. ^tguenash. (p. 77.)-- A term used by the Indians to signify an English- man. ^Ure sauvage, smre grt'j, sucre du pays.-^'Maplc sugar, sugar made irdm the juice of the acer saccliariiium. 'wreau. — A bag of Pemican, or pounded meat, made of raw buffaloa '^^ weighing usually about 90 lbs. B. — ^'JThe distance from one head-land to another at the mouths iie rivers and bays in the lakes, across irhich the canoes stretch instead of keeping along shore, if the weather permits. Voyageur, Forager.— Canadians and others engaged by the fur-traders as canoe-mcn. The term applies also to the traders themselves. tfatappe.-^The prepared filaments of thOi roots of the white spruce tree used for sewing together the birch-bark in making canoes. ' IB ..!V *1 58. 43. 68. 107. i47. 154. 155. 172. 1258. S89. Ibid. 319. 327. 332. 354. 436. 447. 490. 492. 496. 516. 539. 638. Strata. In De Reinhard's TriaL fine 18,/or Hiriiert Faye, read Hubert Faille, and €orrut tht tame tiirtnightnU in both frtab, wherever the name occurs, id line from bottom^ for Fraier, read Ferries. 13//i line ofnoUy for Fraser, read Ferries. linet IS and 13, for et apres quMl noui a eo laisaes, read et apres, quMl nong avoii laiflsei. lines 18 an^ i^,fiU in the bkmkt. Volf m. Cap. 9. page 738. 10/A Une^for Chief Juitioe BoWen, read Mr. Justice Bowen. td line fm. bottom ijfnote^ ofUt any intention, instrt nor any order from any one wlionsoever. %d line Jin, bottomlfor ni aucune, read ni aucuns gremens poor. 5lh linefm. bottom tf note Jill in the blanks materials for so doing. (tne ilt/or to v^hole, reed the whole. line ftSffor la cohduite du maglstrat elle, ne doU pas, read la 'condqite du majnstrat, elle ne doit pas. line 17;/or Mr. M^Donell, read Mr. McDonald. line 19, for Mr. Allan M!Donald, read Mr. Allan Macdonell. line 2yfor dessous, read dessus. lin$ 20,/or has taken, read has mistaken. line 12,/or enlarge, read elargi. h'fte 6.,^r Flether, read Fletcher. line 9, for cause, iread clause. 15fA linefm. bottom^ in note^for homicide, read manslaughter. ftne Gtyfor \xi pbint of law, read in point of fact. line ^i/or motives, read motions. line 9, for perpetuate, fead perpetrate. tith littefm.boUom^ in ndf«,/br materially, read maturely. /u« 2 of note, for homicide, read manslaughter. line 16,/Qr thereny, read there. ' In the Appendix. Page 26, Une ^0,/«r stet, read le. In M'Lellan's Trial, Page S3, line 5 of note (12,) for half-breed, read half-breads. 41. iSth linefm. bottom, of notes, after fifteen of us, tnser^ There were usually three or four bourgeois, sometimes only one. 51. line iO, for Matin, read Martin, and correct the same through- out wherever the name occurs. XX t Page 59. to note (SIX) otM, C. J. 6.— In the nme bar «vith the priraner M'LellAii ? L. P.— Yes, in the aame bar, and he paddled there. €7. line 1, for De Lorge, read Dei Logei, and correct the $amt throt^hmtt, wherever the name occurs. 82. Sd Unefm. bottom^ in note^ for it was to be wished that Mr. Archy should take, read wre most wait becauiie Mr. Archy wanted to take. (Vide expbmation tfogoent in theghttary^ ' fiT. 7/h Unefm, bottom^ in note, for him read it. 110. kth linefm, bottom, read i la premiere barre. 1S9. iOth Unefm. bottom, for witneii, read witnessei. 155* kth Unefm, bottom, for consealling, read counselling. m f TABLE OF REFERENCE. Trial of CHARLES DE REINHARD. page Commencement of proceeaings, <« . . i Namesof the Jury, - - - - 8 Attorney-GeneTars address to the 7urj, ' * 1 William Sax's examipation, - - ' * . 10 CroHS-examination. - • - - 18 Joseph Bocchette, junior^s examinatioo, • • 20 Crsss-examination, -' - - - 22 Hvnble. William Bachelor Coltman*s examfnation, 26 Cxoss-exainination» ' - • • > 29 Samuel Gale's examination, - • • 32 Ciross-exaniination, - - • > 34 HvBERT Faille's examination, - - * 35 Cix>s9*examinatioD, - • - 70 Jean Baftiste La Pointe's examination, - ' - 85 Cross-examination, - - • - 101 Louis Nolin's examination, - - - 114 Captain Protais D'Orsonnens' examination, - 1^20 Arguments on the subject of receiving the confession to captain D'Orsonnens as evidence, - - 130 Examination of captain D'Orsonnens, by Mr. Stuart, on the ^ ' voir* iKre, - - - - • 145 Examination resumed by the Attorney-General, - 160 Cross-examination, • - • - 154 Argument arising therefrom, - - - 161 Cross-examination ttsumed, • - -192 Louis Nolin's examination resumed, • - 203 Cross-examination, - - • - 216 Jacob ViTCHiB*8 examination, - ^ - 218 Cross-examination. - * - • 224 Miles MagdoneLl*s examination, - . . 233 Cross-examination, » - - • 241 Frederick Damkn Hcurter*s examination, - 243 Cross-examination, - - - - 244 Or. John Allan*8 elimination, • - " ^ 250 *-• r. 486 Motions in arrest of judgement, - - • .487 Motion for a new trial, and ailments thereon, - 493 Motidns in arrest of judgement, and arguments thereon, 607 Judicature, and jurisdiction acts, - . . 60S Motions for suspending judgement, and arguments thereon, ^93 C»Btinuatiott of argument on motion for a new trial, - 531 >v,. -s X±Wi Vondnuation of motion in arrest of judgement, Decision of the Court on the above motionii SCNTF.NCE, - • - • 625 649 APPENDIX. A Comroission of Oyer and Ttnniner, - - ' 1 B Charge to thii Grand J ur}r, - - - ^ C Indictment, - - - - ti 1) declaration and confeuion of Charles De Reinhard, S4 £ Prince Regent's Proclamation of Sd May, 1817, - 40 K John Mc^fab*8 letter to captain Matlhcy, - 46 F Capitulation of Fort Lake la Pluie, - - 4>7 O Record of Dc Reinhard*8 conviction, - • 49 Trial of ARCHIBALD IfPLELLAN. Opening of the proceedings, > . <• Names of the Jurj, &c. ... Address to the Jury by (he Attorney-General, Honble. William BAcnELoit Colti^an's examination, Cross-examination, .... Joseph Bouchettc junior's examination, Cross-eiamination, ... . ^ Hubert Faille's examination. Cross-examination, .... Jean Baptiste La Pom te's examination. Cross-examination, • • •* AuousTiN PiiRiER DiT Des Looes' examinatioD, Frederick Damien Hedrter's examination. Cross-examination, ... JocBLYN Waller's examination, •• DEFENCE, .... Nicholas Dvcharme*s examination, Cross-examination, ... Colonel Alexr. Eraser's examination, Cross-examination, - - . FRAirgois Tavpier's examination. Cross-examination, ... James Chisholm McTavisb's examination, - Cross-examina^on, ... Jean CREBA8siL*s examination, . . Cross-examination, - - - James Chisholm MgTayisb^s second examination, Cross-examioation, - - -> iiimt i 9 10 18 20 21 22 23 38 42 51 67 68 7a 81 ibi(). ibid. S& 90 ibid. ibid. 92 93 94 96 100 lot 103 XXIV Michel Martin's examination, > • • Cross-examination, . - Colonel Alexr. Fraser^s second examination, Honble. Wm. Bachelor Coltman's second examination, Cross-examination, Louis Noun's second examination, • • Miles MacdoNell's examination, Cross-examination, Charge to the Jury, Verdict of the Jury, - 7 'i 105 115 116 117 129 130 ibid. 131 ibid. 91 ■ ra;; 1 - NOTE. The Act of 43d Geo. III. Cap. 138, com- monly called the Canada Jurisdiction Act, be- ing so frequently referred to in the course of the preceding trials^ it is here printed entire, for more complete reference. ^nno Quadragesimo iertio Georgti UT, R^gfs. CAP. CXXXVIII. J^n Act for extending the Jurisdiction of the Courts of Justice, in the provinces of Lower Canada, and tipper Canada, to the trial and punishment ofper* sons guilty of crimes and offences, within certain ports of J^orth Americaif adjoining to the saidprO' vinces* (\Uh August, 1803.) * '■■ , ■ , ' Whereas crimes and of&nces have been com- mitted in the Indian territories and other parts of America, not within the limits of the provmces of ]B^pper ox Lower Canada, or either of tkem, or of the jurisdiction of any of the Courts established m those provinces, or within the limits of iany civil government of the United States of America, anS are therefore not cognizable by any jurisdiction whatever, and by reason thereof great crin^s and ofif^qes have gone, and may hereafter go unpmi- ishedf and greatly increase — For reme^ where- of, Mctjfjt please your Majesty, that it taay be en- acted, and be it enacted by the X!ing'*s most excels -M tent Majesty^ by and with the consent and advice of the Lords spiritual and' temporal and Commons^ in this present parliament assembled, and by thd authority of the same, That from and after the pavsin^ of this act, all offences committed within any of the Indian territories, or parts of America, not within the limits of either of the said provinces of Upper or Lower Canada, or of any civil govern- inent of the United States of America, shall be, and be deemed to be offences of the same nature, and shall be tried in the same manner and subject to the same punishment as if the same had been cotiimitted within the provinces of Lower or Upper Canada. 2d. jJndbe it further enacted, ttiat it shall be law- ful for the 'Governor or Lieutenant iGovernor, or person adtninistering the government, for the time being, of the provincfe of Lower Canada, by com- mission, under his hand and seal, to authorize iand empower any person or persons wheresoever resi- dent, or being at the time, to act as civil magis- trates and justices of the peace, for any of the In- dian territories, or parts of America, not within th(* '3 4 ^ fl; m V ful for the ju(]ges and other officers of the said Courts to issue subpcenas, and other processes, for enforcing the attenciance of witnesses on any such irial, and such subpoenas and other processes shall be .as valid and enectual, and be in full force, and ',1*'" '. ^ !'>ut in execution in any partis of the Indian terri- ories, or other parts of America, out of, and not ^irithiD. the limits of the civil government of the U- iiited States of America, as well as within the li- mits of either of the said provinces of Upper or Lower Canada, in relation to the trial of any crimes or offences by this act made cognizable in i^uch Court, or to the more speedy and effectually bringing any offender or offenders to justice un- der this act as fully and amply as any subpoenas or other processes are within the limits of the ju- risdiction of this Court, from which any such sub- poenas or processes sh^U have issued as aforesaid;, any act or acts, law or laws, custom, usage, matter pr thing to the contrary notwithstanding. 4th. Provided always, atid be it further enacted, that if \iny crime or offence charged and prescqut- ed under this act shall be proved to have been committed by any person or persons not being a subject or subjects of His Majesty and also within the limits of any colony, settlement or territory, belonging to any European states, the Court before which such prosecution shall be had, shall forth- "with acquit such person or persons, not being such subject or subjects as aforesaid, of such charge. , , dth. Provided nevertheless, that it shall and may be lawful for such Court to proceed In the trial of any other person being a subject or subjects of His IVIajesty, who shall be charged with the same or any other offenee, notwithstanding sach offence ^hall appear to hare been committed within the limits of any colony, settlement or territory, be- longing to any £i]ro{)eaD state as aforesaid* '**^ VtSTBlCt OF I CtUEBEC. i u. IH'J Special Sessio^ of QYER and TER , ^ ^ and General Gaol Delivery. , . <. Monday^ t^th^Matf^ ??i^ , PRESENT, • ' ' " ^ His Honor Chief Justigb Sewell, The Honorable Mr. Justice Perrault, The [^ojiorc^ble Mr. JfrsTiCE Bowen. Tiff: Special Commission (Appendix A.) being re;ad by the Clerk of th6 CroWn, and the Grand Jury sworn in, and charged by the honorable the Chief Justice, (Appendix 6.) the Court adjourned tmtil Tuesday, two o'clock, p. M. PRESENT, ' His Honor Chief Justm^ Sewell, The,Honorable Mr. Justice Bowen. JVt( except swearing some of the Grand Juij, Adjourned until nine o'clock, a. m. to-morrQW» A Wednesday, 20th May, 18 18^, PBESENT A8 TESTEItWIY. ■U', On an indictment for the murder of O- WEN Keveny, on the 1 1th day of Septem- ber, 1816. BOMINUS REX, versus, tHARLES DE REINHARD, ARCHIBALD MACLELLAN, CUTHBERT GRANT, JOSEP9 CADOTTE, JEAN BAPTISTE PESMARAIS. , ilie Grand Jury returned the indtcimeni, a true BILL. (Signed) THOMAS WILSON, Foreman. Attorney-General — I move that Charles De Rein- liard be put to the bar, and call Archibald M'Lellan. Mr. Stuart *aiiswered that Archibald M'Lellan was not here at present, though in Quebec, bjt he should be in court at any time the Attorney-Gen- eral required him./ Charles P^Reinhard was put to the ban Clerk of the Croum, — Charles Pe Reinhar^d hold up your right hand. , The Prisoner was then arraigned upon the indict^ ment. (Appendix C.) ' - Clerk of the Oroww.— -How say you, Charles De Reinbard, are you guilty of the felony aiid murder whereof you stand mdicted, or not guilty ? » Pmoncr.— Not guilty. Clerk of the Croum. — How will you be tried .^ Prisoner.-^^^y God and mj country. Chrk of the Crown,^jod send you a good de- liverance. When will you be ready for your trial .^ Prisoner. — On Friday next. Chief Justice SewelL-^het the court be adjourn- ed till Friday morning at eight o'clock. And gen- tlemen, who are sumnr^oned to attend ds petty ju- rors, I wish to remark to you^ that the crime of which the prisoner is accused is a most serious one, and his trial is of equa^ importance to himself and the justice of the country. I desire, > therefore, strongly to impress upon your minds the absolute necessity of every juror attending oii Friday mom* ing, punctually at eight o'clock, that the prisoner may have the full benefit of the right of challenge^ given to him by the laws of his country ; aWd, gen- tlemen, the court, to ensure this right in its fullest extent, will feel itself obliged in justice to the pri- soner to impose a fine upon every defaulter. Adjourned until Friday next, eight o'clock, a. vk Friday^ 22d May, 1818. His Honor Chief Ji/stice SEWtLtJ' ;^ ' The Honorable Mr. Justice Bowcif^ COUSSEL f^OR THE CROWN, Mr. Attorney-General, Uniacke, , Mr. Solicitor-General, Marshalu C0UX8EL FOR THE PRISONER^ Andrew Stuart, ^ tJEORGE rVANPELSON, > EsqUtrSS, , J. R. Valliere de St. Real, ^ Charles 'De JRein'hard was put to the bar and in^ formed, by the Clerk of' the Crown, of his right of challenging and the lime of making his challenges ; when cfter several being made, on the part of the Crown and of the prisoner, (he following gentlemen Moete sworn as a jury^' ^ ' Thomas LEVALtfi\ ' Stephen Curtis, Laurent Audy, Joseph Miville, Olivier Trahan, Roger Sassevil(^. Ralph BrewEr, Jean La Forme, Simon Le Compte, Joseph Prevost, Daniel Thompson^ Jean* Desnoy&rs. ( , ^ t/Hliomey-General — Gentkmm of ike Juryj ^ Yoy have been sworn to try the prisoner at ' the bar, named Charles De Reinhard, who is accus- ed ofipaking on the ) 1th day of September, 1816, in the Ijfty-sixth year of the reign of His IVJajesty, an assault upon one Owen Keveny, witl> a sabre, ^nd giving h^qi two wounds therewith, which caus- ed his death. There are, gentlemen, several counts in the indictment, but they all arrive at the same conclusion, that these assaults caused his death. The lirst cojunt charges the assault to have been made with a sword or sabre — the second charges the same oiience, but with a gun loaded with bail —the third ,cb|irges the aame effect, namely, his death, to have been produced by the prii^oner, with a gun and a sabre. The fourtn charge^ another person with the murder and makes the prisoner a principal in the second degree, in being present and assisting one Francois Mainvifle, who it is al- leged made the assault with a gun \ the prisoner being present and assisting to procure his death by^ivmff him two wounds with a sabre. — The Evi- dence tobe produced will prove that the deceased met his death, principally by the act of the prison- er, in .wounding him with the sabre. Gentlemen, this is one of the cashes tl^t have been brought froiiia the Indian territory, and will, I am confident, f«c^iv^ from you that pattent investigation which i^s importance ef^titles it to. There can be bo doub^t, from the evidences we shall produce, oi the death of Keveny, and as little, that he came by his death fi'Qm the hands of De Reinhard. There are several persons charged with the crime, fcut avail- ing themselves of the right given them by the laws of theii. country, they have chosen to have sepa- rate tri^, The deceased, Oweo j^veny, wag a native of Ireland^ in the service of the Earl of Set- kirk, for his colonjr established at the Red River ; and the prisoner at the bar v^as formerly a serJeant in the regiment De Meuron, who at the breaking up of his regiment, entered into the service of the North-West Company. It has been intimated to me, gentlemen, that the deceased was ot in the service of the Earl of Selkirk, but in that of the company of the Hudson's Bay, a circumstance of no particular importance. Having arrived in the Indian country, it will appear, that in consequence of complaints made against him by some of the per- sons who were under him, a warrant was issued by a Mr. Archibald Norman M'Leod, and given to the prisoner at the bar to execute ; at the time of its execution there was a great deal of disputing ; the deceased being a man of a very high spirit, did not for some tune submit to the warrant, and I believe opposed its "execution with some violence ; eventually, hotvever, he submitted. Whether, gen- tlemen, this circumstance did not beget or give rise, in the mind of the prisoner, to that degree of ma^lice as eventually caused the death of this man, Owen Keveny, it will be ibr you to determine. — Being arrested, it will appear lo you in evidence, that he wa^ sent by Mr. M'LeUan to pass to Fort William, out of Lac la Pluie-r-that he was put for this purpose into a cano^, guided by five Bois Bru- /c5-^that in the course of their passage, a short time after setting out, they met two other canoes, in one of whiph was a Mr. M'Donell, a partner of the North-West Company, whd puthim in charge of two men (who will be called before you,) of the names of Faille and La Pointe^ together with a Sa- vage or Indian named Josephs, and known in that territory as Fik de Perdrix Blanche, It will ap- pear to you, gentlemen, that in the course of the passage, some difficulty occurred between the de.- « i mi . ii ; j ceased aiidthe Indian, Joseph, and that eventually. Keveny was left by tlicse persons on an uninha- bited Island, as the Indian would not allow him to proceed farther with them. I ought to have men- tioned, that Mr. M*Doneil had directed them to re- turn with Keveny to Lac la Pluie, as there was no probability of a canoe going from Fort Willi- am to Montreal. Mr. M^DonelT had met them in the river Winnipic, which is between the two lakes on their way to Fort William ; but they were now under his orders returning to Lac la Pluie. — At the time they left Keveny. they went in quest of provisions, of which they were short, and it will be> shewn in evidence, that during their search they quarreled among themselves, and that final- ly the Indian quitted them. — Faille and La Pointer being thus left by the Indian, who had acted as their guide, and not being acquainted with the route, made for an island to wait the passing of a canoe, by which they hoped to be taken up. It will ap- pear in evidence, that the canoe of Mr. M'Lellan, was seen by them approaching the place where they were. — In this canoe, gen\l'^5me.n, were, the prisoner at the bar, Mr. Cadotte, Mr. Grant, Mr. Archibald M'Lellan, and a number of i?QiA* Bruits. The Indian, .Joseph, also was in the canoe, (having been fallen in witli a short ^ime after he had quit- ed Faille and La Pointe,) concealed under a Scotch cloak, and was not perceived by these men during the commencement of a conversation which took place, .relative to their separation fron^ him.* — As the cpnver'siation and occurrences that took place at tbjs moment, wilf be submitted to you in evi- dence, it is unnecessary that I should detain you to , repeat them.— ^Faille and La Pointe were tak^n into the canoe, and the whole went in search of Mr. Keveny, whom they found, not at the spot where he had been left by these persons, but at dome distance higher up fimonff the ndii nn, ? t a place known as en hnut des Dalles, h - here, on- tlemen, that the evidence begins to ui.«^ct th«* >ri- soner in the strongest manner. After staying some time in this place, De Reinhard took Keveny in charge, and was left with Mainville, a Bois BruU^ and Joseph, the Indian, to follow M^Lellan and the others wlio went away in his (M'Lellan's) canoe. AAer they had proceeded six or seven miles, it will appear in evidence, that the deceased had occasion to be put on shore, and going a short distance from them for his necessary occasions, it was by Mainville, and the prisoner at the bar, determined that that was a suitable place to carry into effect a design that, it will be shewn, had long previously existed, viz : that of taking away the life of Owen Keveny. — ^^The deceased had returned and was in the act of embarking in the canoe, when the prison er at the bar gave him a thrust in the back with a sabre, and suosequently another, and that Keve- ny, notwithstanding he was wounded, made such resistance, that it was not improbable that he would have sitcceeded in wresting tho sabre from the pri- soner: De Reinhard counselled-the m^/iy Mainville to fire at Keveny, which he did and instantly kill- ed him, Keveny falling directly into the canoe. — IVrLellan, and those who accompanied him, after journeying three or four leagues, encamped for the night-^and some time after they had done so, the little canoe was seen approaching, and in it the pri- soner at the bar, Mainville and Joseph, but not Mr. Keveny. iihiquiry ivas made for him by some of the people, and it was answered that he would not return again, that he was well hid. The words were, " il ne reviendra jjIus^ il est bten cache.'''' — From the chain of corroborative evidence that we shall place before you — and you Will remember from the nature of the cricne, it is scarcely ever 1; possible to exhibit positire testimony— -I feat', gen* tleroen, you will not be able to doubt of the guilt of the prisoner at the bar. The witnesses we shall bring before you, are generally of the lower order of men, but we believe v^ry honest and fully en- titled to credit; of that, however, gentlemen, it is^ your |)eculiar province to judge. They will prove to you such a variety of strong circumstances, that although wo can not, for reasons sufficiently obvi- ous, introduce that positive evidence of the mur- der, which it is always desirable should precede a conviction, and which upon accusation ot all other crimes, the officers of the Crown are enabled to do, yet you will not be able to resist their united weight against the prisoner. The clothes of the deceased, full of blood, and pierced by a ball and a sword, were in the canoe when it arrived at the encampment. De Reinhat'd had the keys of Mr. Keveny^s boxes with which he opened them in the presence of the witnesses ; liis sabre was in a bloody state, and lie boasted of having killed l(e« veny. • Another very strong circumstance is, gen- tlemen, the division which was made by the pri- soner, of the butin niid property of the deceased — he then actually assigned as a reason for taking the best of the articles, that he oiiffht to have them because it was him who had killed Keveny ; — " comme c'est moi qui Vai iuefaurai le choix*'' ' And he also gave as a reason for Mainville having ra- ther more than the others, that he had been pre- sent and gave him assistance, saying, ^^ que comme Mainville etoit avec moi et rrCaida a le tuer>, quHl aura plus que les auires /' and the division was made in that way. - We shall prove also, that there was a great {Quantity of blood in the bow of the canoe, which the prisoner and Mainville, admitted at the time, Vf^B tbe blood of Keveny; but perhaps, gei^tle^ I'M men* you will consider the clothes of Keveny, being in the little canoe at the time it arrived, as one of the strongest circumstances of the case — thAt they were there, and in the Condition I have described, will be most distinctly proved to you, by two men named Faille and La Pointe, who Tvill also prove the opening of the trunks by the prisoner, an^ indeed the whole of the incidents 1 navr mentioned to you. Another very strong proof we shall produce, will be, the prisoner's own confession, made to an odicer of the same regiment, to which the pri« soiier lii'id formerly belonged, a captain D'Orson- nens, wliom he met some time after, iind to whom he voluntarily confessed that he had killed Keve^ ncy — and on various other occasions he also free- ly confessed it; — indeed I believe he never deni- ed it. We shall also produce p. confession, in the prisoner's own hand writing, made before a ma* gistrate, in which the whole of the circumstances are detailed as I have related them. Upon this chain of evidence' I apprehend you will liavc lit^ tie difficulty in returning a verdict for the Crown. The people to be produced before you, are the traders of the Indian country, canoe men and eU' gages of a lower order of men certainly, but I be- lieve every way enthled to credit; that, however, gentlemen, as 1 mentioned just now, is peculiarly your province to xletermine. The case is one of those which has arisen from the unfortunate dis- putes between the Hudson's Bay and the North- west Companies, relative to which, we have heard so much, but to which I am sure, gentlemen, you ^ill pay no attention, otherwise f would beg of you to allow nothing to have the slightest influ- ence on your judgements, but what is produced before you in evidence. We do not know what is the defence the prisoner will set up — if he can 10 l\' m ■i' ' ' i II MV convince your consciences that he did not commit the crime he is accused of, you will acquit him — if, on the other hand, the Crown establishes the case I have detailed to you, it will be your duty by the oaths you have taken, though a very painful one, yet your duty will be to say he if: guilty. He has put himself on God and his country for his trial, and you, as that country, are to decide upon his guilt or his innocence. 7%c Attorney-General having addressed the jury to the same effect in' the French language^ called Mr. Sax ; the other witnesses being ordered to withdraw with the exception of Messrs. Coltman, Gale and Bouchette. WILLIAM SAX, Sworn, I am a surveyor — je connois d'apres un plan que j*ai ici et des autres, les limites du Haut Canada, c'est-a-dire de Tancienne province de Quebec ; la limite de Touest; rembouchure de la riviere Ohio est en longitude 88° 50' ouest de Greenwich^ et la- tituclo'37" 10' nord.(') — That appears by a map which I have' made and have in my hand, to be the latitude and longitude of the junction of the Ohio river with the Mississippi. Chief Justice Sewell. — When you speak of the junction of the Ohio with the Mississippi river, do you mean where the Ohio river empties itself into the banks of the Mississippi ? Mr. Sax. — That is the understanding, and the statute provides also Chief Justice SeweU. — We do not require any in? (*) I am acquainted^ according to a map which I have here, wilh tiie limits of Upper Canada, that is to say, of the old pro- vince of Quebec : the westera limit ; the mouth of the river O- hio is in longitude 88° 50' west from Greenifinch, and latitude 37« 10/ north. n formation or assistance in the construction of the statute ; we require it as to the fact. The con-v struction of the statute, it is our province to decide on. , , ^ AUomey-General-^Vf oM a line running north, from the junction of the Ohio anc^ Mississippi ri- vers strike, in its passage to the Hudson's Bay ter- ritory, the great lakes, and where would it strike lake Superior.'^ And where would it leave Fort William } Mr. Sax. — Such a line drawn due north, would strike lake Superior on its passage, and at or a- bout a degree east of Fort William, or perhaps three quarters of a degree. Attorney-General, — That is to say, the west end of lake Superior? - Mr. Sax. — Yes, nearly so — when I say that such a line would strike east of Fort William, I mean that it would leave Fort William, about three quar- ters of a deojree to the west of it. It is so laid down in all the maps, Attorney-General. — From your knowledge of maps, will you then explain in French to the jury, this line. Mr. Sax having done so., continued his evidence. — Je connois la riviere Winnipic par les plans et c'cst entre le 50** ct 51** latitude nord. Le Portage des Rats est 49-4** par ce plan ou 49** 45' et longi- tude 94** 6' ouest de Greenwich, et la riviere Win- nipic est consequemment a environ 5** ouest de la ligne courant nord de la jonction des riyieres Ohio et Mississippi, et certainement Uors de I'ancienne province de Quebec.(^) (3) I am acquainted with Ihe river Winnipic by v*he maps, and it is between the 60(h and fjlst degree of noilb laiitniloj — The Portage des Rats is in 49|^ by lhi& map, or 49** 45', and Ipngitude 94** 6' west from Greenwich, and the river Winnipic h consequently about 6** west of the line runnint^ north from ths f i m lii;. ■a !' ■(' f 1 i ) If' t)hi&f Justice Suwe//.— What are you speaking of rtow ? ./I!fr. Sax* — That a liiie, supposing it to run due north from the junction of the Ohio and iVIissis- sippi rivers, Would leave the river Winnipic ^\e degrees out of the province of Upper Canada, not a northward line, but a due north line. jittorriey-GeneraL — Do you mean to say that a northward line is not a north line ? Mr, Sax. — It is not always, it may be north by east, or north by west or north-north-west, or many other points of the compass. A due north; line is one that goes direct to the north ^ole with- out any deviation whatever. ^ttomet/'General.'—And >does not a northward line go to the north pole ? If you had a northward line to run, would not you run it to the north pole.^ Mr, Sax. — Perhaps J might and perhaps not, I would certainly run it northerly, though I might not run it due north. . Attorney-General — What is to prevent you tak- ing it due north } If you had a line to run from a given point till it struck a river, and thence to con-- tinue along the course of that river northward, would you not call that drawing a northern line } \ Mr, Sax. — Undoubtedly it would be a north- ern line, but not a due north line. Attorney-General. — ^Would it not ? Could it be east or west ? - Mr, Sax. — It might according to circumstances be a north eastward or north westwardly line, and yet a northern line, that is a line having a north- Ward course or drawing nearer to the north pole as it progressed, though not an astronomical north line. hf junction of the rivers Ohio and Mississippi, and certainly, without the old province of Qiiebec. 13 jSttomevrGeneral^^ls not a north line a liq^ northward ? Mr. Sax. — Certainly, (one of the jury reques- ted Mr. Sax to speak French.) . Une ligne coii. rant vrai nord» est sans doute une ligne north- ward.(^) Attomey-General — And a hne true north- west- tvard you would call a north westward line ? Mr. Sax. Assuremeot une ligne vrai nord- ouest est une ligne north-westward^ mais une ligne . par exemple qui courroit au nord) nonobstant qu'elle gagneroit dans son cours plus de nord que d^ouest ou d'est, ne seroit pas necessairement une ligne vrai nprd, mais une ligne de nord ou north' ward.{*) Chief Justice SeweJL — I really do not compre- hend the distinction ; to say that a northward line is not a north line, \ confess appears to me ^o approach the " reductio ad absurmm.'^^ Suppose that we bad a compass here, and from a given point I draw a line north-westward, that is to say, terminating at a point north-westward, would not that be a due northwest line. Mr. Sax. — ft would if drawn due north-west, but if in drawing it you gained northerly, it would from the course of its deviation, be a line north- ^^rd, though not a north line. Chief Justice Sewell. — Then its course north- lyard must unquestionable be due north— rjf a line north-westardly is a north-west linp. Jlfr. Vcdliere de St. Real. — Your honor will ob- serve that he added, '^ but if it deviated so as to (3) A line running due north is undoubtedly a northward )ine.. (*) Certainly ; a line due nortbvtrest is a north- westward line, but a line, for instance, that runs towards the north notwith- standing it may gain in its course more northing, than westing or easting, is not therefore necessarily a due north line, but h &- northern or northward lioe. 14 w) ^^ gain a little north, it would then be a northr •* ward line. Chief Justice Sewell. — If a line is to be drawn from a given point of the compass, say from the west in a northward direction, to say that such a line would not be a due north hne, appears to me to be a contradiction to the plainest principle of common sense, and totally irreconcilable. 1 will put the question to you again Sir. Do I under- stand you to say, that a line drawn from a given point northward is not a north line ? Mr. Sax, — Surveyors usually call lines' run- ning Chief Justice Sewell. — I am not asking you what surveyors usually call— I want to know whether in point of fact, a fact that any man can tell as well as a surveyor, whether a line from a western or eastern point of the compass, drawn north- ward, is or is not, a north line ? just answer that question, yes or no — and then you may explain tnat answer in any way you think proper. Mr. Sax. — It certainly must be, to a certain ex- tent, a north line, but not a due north line. Chief Justice Sewell. — Why not } Mr. Sax. — A line drawn from any point, be- tween two cardinal points of the compass, direct to any cardinal point, is a due north or west line, as the case may be ; but a line may be so drawn between two points, as to be called by surveyors, a northward or a southward line, as it may chance to gain in the course of running it upon tnat point of the compass to which it is approaching ; as I might draw a line from a point north-westardly, but gaining in a northerly direction in its course, so that at its termination it would be a line north- ward, from having more northing there than at the point from which I started. Chief Justice Sewell. — Would not a line drawn HI I ■ *,'< 15t from a westerly point, one half north and on& half east, be a due north-east line, or must not lines drawn from any point in one half the com- pass between east and west be a north, and in the other half, a south line ? Mr. iSajt.— Certainly, while progressing north or south, but they might be gaming east or west Chief Justice Sewell — Is it then equally true, that lines running east from points between north and south, are due east lines? J\lr. Sax. — Yes, if progressing east. Attorney 'Gen&ral. — Then they cannot be north- ward any more than north. Mr. Sax.— ^An identical line, from any point running a direct course east, is undoubtedly an eastern line, but if inclining in its course half north and half east it is a north-east line. <'u Chief Justice SewelL — Am I to understand yoB that one and the same line can be a northern and eastern line .^ Mr. /Sax.— The same line may be a north-east line. Chief Justice SewelL — Let me be clearly under- stood by you, because at present I do not at all comprehend what you mean. Taking as a point of departure a centre, and travelling on the radius of a circle, would not the line, according to what you say, be at one and the same time a due north east and a due north west line — which appears to me completely a, " recfuctio ad absurdum,''^ though you ceirtainly have said so. ' Attorney General — If your honor will permit me, I will ask him a question ? — If you were di- rected simply to draw a boundary line northward, would you qualify it in any way, by drawing it to the east or west, or would you go as nearly in a direct north course as possible .'* Which question being repeated in French. . S; 'i 1 ■*■ I, :i\ 'i' if' (tfi in ):■:. . Ii 'ft m ;it JlliJ: i l-'ii tli Ii I 16 ■ Vtfr. iSoit, — Si oa m'ordonnoit de tirer une ligne •nortkwuM sans aucune autrP direction, je la tire- rois aussi vrai nord comme je pourrois. II depen- droit aussi si on m^ordonnoit de la tirer astrono- miqucment ou magnetiquemcnt, parceque les varia- tions en quelques places entre une ligne astroiio- mique et une ligne magnetique sont vingt ou trente degres, et en quelques places elles s^accordcnt. La ligne astronomique est la vraie parrallele/*) ^ttomey^General — But whether you run the line astronomically or magnetically, still in run- ning an unqualified northward line, yoq would get as much to the north as you ?ould ? Mr* Sax, — Oui, si j'avois a tirer une ligne north" ward sans autre direction, je la tirerois vrai nord, ou astronomiquement, ou magnetiquement. Ma- gnetiquement, s'il y avoit de variation, et astrono- miquement, s'il n'y avoit pas de variation.(') Attorney-General. ^Will the Court have the goodness to take that down. How, Sir, would a line drawn due west from the Portage des Rats, strike the river Mississippi ? Mr. jScw:.— A line drawn due west from the Portage des Rats, would never strike it at all. Chief Justice Sewell, — What line are you speak« ing of now, the American line ? Attorney-GeneraL-^Yesy your honor. Well but if a line was drawn from Portage des Rats, any (*) If I were directed to draw a northward line without any other instrucron, I should draw it as due north as I could. It would also depend upon whether I was desired to draw it astro- nomically or magnetically, for the variations between, an astro- nical and a magnetic line extend in some places from twenty to thirty degrees, and in some places they agree. T|)e astronq- mical line is the true parallel. (*) Yes, if I had to draw a line northward, without other tn^ struction, I should draw it due north, either astronomically of magnetically ; magnetically if there was any variation) and astronomically if ther« was none. 17 waj to the Mississippi, would it in its passage strike the lake or river Winnipic, or how would it leave them ? Mr, Sax. — Une ligne tirte du Portage des Rats jusqu^a la riviere Mississippi laisseroit toute la ri- viere Winnipic au nord-ouest de cette liene.(') Chief Justice Sewell.^^But Portage ^imU iftS; not the point of departure ; it is 'Mhe liijbst^l^hwthi' western point of the Lake of the Wood^P- gl^ want. Auorney^General — ^The most north-western cor- ner of the Lake of the Woods, is Portage des Rats. Do not the English and American maps agree in that particular ? Mr, Sax. — Yes, they both make that the most north-western point of the Lake of the Woods, and a line drawn from there to the Mississippi, would leave both the lake and river Winnipic entirely to the north-west of it. .Attorney 'GeneraL — And if aline were drawn due west, as the Americans contend it ought to be, would the effect be the same } ' . ^ Mr, Sax. — Oui, une ligne tiree vrai ouest laisse- roit la riviere Winnipic en son entier, au nord- ouest. (*) Mellish's map of the Untied States, produced ty the Attorney 'General. j^/Zomey-Gewera/.-^-^Connoissez-vous la carte geographicjue que monsieur Mellish a publie sous la protection du gouvernement des Etats-Unis? Regardez-la, s'il vous plait, et dites a la Cour et a messieurs les jur6s, comment elle laisse le Por- tage des Rats ou la riviere Winnipic ? C) A line drawn frbfh P6rta£;e des Rats to the river Missis- sippi, would leave the whole of the river Winnipic to the north- west of such a line. (•) Yes, a line dra^vn (fue west would leave the whole of the river Winnijpic to the north- west.' v ",'1 : ii ' Ml, i 18 Mr. Sctx. — ^Cette carte la laisse en son entier au nord-ouest except^ peut-etre un coude precis ou la riviere court dedans le Lac des Bois. (') jSttornev'General. — It must be so entirely, for if not, yon do not draw your line correctly after the statute, it must be from the dead water of the lake you sta. t, or you take your departure from a river. Mr, Sax, — It may be and actually is the proper point of departure, at the very point where the two join. Et cela est d^apres les meilleures cartes ou mappes tant Angloises qu^Americaines.C) Jlttorney-General.-^WiW your honor please to take that down? Cross examined hy Mr. Valliere de St Real. Mr. Sax.^^dA vu plusieurs cartes et mappes, et c^est d'icelles que j'ai ma connoissance des latitudes et longitudes des quelles je parlois. Les cartes de Jenreys et Bouchette s accordent, je crois, et dans ces cartes la ligne ouest de Pancienne pro- Tince de Quebec court depuis la jonction des ri* vieres Ohio et Mississippi, suivant le Mississippi jusqu'a sa source c|u^on appelle Turtle Lake^ dans latitude 47^ 38' nord, et longitude 94'' 30% ou plus vraiement 95* ouest.(**) (*) A. G. — Are you acquainted ivith4he map, which Mr. Mellish has published under the auspices of the government of the United-States. Look at it, if you please, and tell the Court, and the gentlemen of the jury, how it lays down the Portage des Rats^ or the river Winnipic. Mr, S. — This map leaves it wholly to the north-west, except ing, perhaps, a particular elbow, where the river runs into the Lake of the Woods. O *) And that is in conformity with the best charts or maps» boto English and American. (*>) I have seen many charts and maps, and it is from them I derive my knowledge of the latitudes and longitudes of which I spoke. The maps of Jeffreys and Bouchette, I believet agreei It J^r, VatUhe de St. /2^ci/.— Of Greenwich? Mr, Sax. — Oui, ouest de Greenwich.(*") Mr, Justice ^ou;en.-— What did jou saj was the latitude ? Mr. Sox.— 47*> 38' north. Chief Justice Sewell, — Do I understand jou ri^ht Sir, wnen 1 take you say that the head of the Mis- sissippi in Turtle Lake nas about 47^ 38' northern latitude and about 95^ western longitude, calculat* ing it from the meridian of Greenwich ? Mr. Sax. — Yes, that is about the latitude and longitude. MP. Justice Bowen, — From whence does the line go.^ Mr, VaUiere de St. Rial. — Northward, or due north is it ? Attorney-General, — I beg my learned friend will permit the Court to put their own questions as they think proper. Chief Justice Sewell — ^You are certainly right, the Court can have no desire but that which is com- mon to all parties, that of obtaining truly and cor- rectly the facts of the case, and if, Mr. Valliere, the Court does not obtain thereby the information you think important to obtain, you can extract it your- self. Our question does not deprive you of your right of cross examination. How does the line run.^ ^. Mr. Sax, — De la source de la riviere Mississip- pi elle court par une ligne vrai nord jusqu^a la baie d^Hudson. Elle est ainsi tiree sur la carte de Bouchette; la carte de Jeffreys Tarrete au Lac and in these maps the western limit of the old province oY ^ebec runs from the junction of the Ohio and the Mississippi, following the Mississippi until its source, which is called Turtle Lake, in latitude 47** 38' north, and longitude 94®, or mor« cor- rectly, 95" west. ( ' ^ ) Yes, we9t from Greenwich . I U i Ii':: I if '' ' Turtle; et par cons^uent laissera la source du Lac des Bols a Test d*une telle ligne, et les Dallet encore sont a rest.(*') Mr, VaUihe de St, Rial, — You only know that from maps, 1 believe, you was never there, I ima- gine ? Mr, Sax. — T was never there, it. is only from maps that I speak. Mr, Vallihre de St, Rial, — I have done with Mr. Sax. Momey General, — Respecting these maps— what nation does JcfTreys belong to? Mr, Sax, — Jeffreys is an English author or geographer. Mr, VaUiere de St, Rial. — I wish that to be ta- ken down. Attorney General, — Where was his map publish- ed .^ Mr, Sax,— I do not know, it does not mention on the map. Mr. JOSEPH BOUCHETTE, Junior, Sworn, Attorney-General. — You Sir, are, I "believe, depu- ty-surveyor-general of this province, and can give us the western line of Upper Canada ? Mr, Bouchette, — Je suis depute arpenteur gene- ral de la province : la ligne ouest du Haut Cana- da est une courant vrai nord depuis la jonction des rivieres Ohio ^.t Mississippi jusqu^aux limites sud de la Baie de Fundy. Attorney •General,'--Hoxi pas de Fundy je crois. (» 3) From the source of the river Mississippi it runs by a h'ne due north to Hudson^s Bay. It is thus dra^vn in Bouchette's map: it stops in Jeffreys's map at Turtle .Lake: and conse- quently it will leave the source (beginning) of the Lake of the Woods to the east of auch a line, and the Dalles is also to the ^ast. fe • 21 Mr, Boueheite* — Non, de la Baie d'Hudson, el la latitude do cette jonction dcs rivieres est 37^ 10' nord et la longitude est 88^ 58' oucst du tne- ridien de Greenwich, et cette ligne laisscra toute la riviere Winnipic a Touest. Le Portage des Rats est a 49'' 51' latitude au nordet 94'' 10' de ion- gitude ouestde Green wich.(**) Attomey-General. — Do you know the Dalles ? Mr, Bouchette. — I have discovered it laid down in Arrowstnith's chart, as being about twelve miles above, that is farther north than. Portage des Rats. L^endroit appele les Dalles est a douze milles au nord du Portage des Rats, selon Arrow- smith. Le point le plus au nord-ouest du Lac des Bois a 49'' 28' de latitude nord et de longitude 94'* 25' ouestde Greenwich.(") Attorney General, — How would a line drawn from there to the Mississippi, leave the Winnipic as relates to the United States of America ? Mr, Bouchette, — It would leave the whole of the river Winnipic to the north, and consequently out of the limits of the United States of America, it wo jld leave the head of the Mississippi to the south. (»*) Mr. B. — I am deputy-surveyor-general of the province. The western Hmit of U^ per Canada is a line running due north, from the junction of the rivers Ohio and Mississippi lo the south- ern limits of the Bay of Fundy. A, G.— Not Fundy, I believe. Mr. B. — No : Hudson's Bay, and the latitude of the junction of those rivers is 31° 10' north, and the longitude is 88° 68' v/*»st from the meridian of Greenwich ; and this line will leave the whole of the river Winnipic to the west. The Portage des Rats is in latitude 49** 51' north, and longitude 94 *> 10' west from Greenwich. (» *) The place called the Dalles is twelve miles to the north of Portage des Rats, according to Arrowsmilb. The most north- western point of the Lake of the Woods, is in latitude 49° 28 north, and longitude 94° 26' west from Greenwich. 22 V '< H i > I ' you say you know Attorney-General. — Yes, but I want the Winni- pic only, and also tell us what would be the effect of a line drawn due west, from the most north-wes- tern pomt of the Lake of the Woods. Jur, Bouchette. — Une ligne courant du point le plus au nord-ouest du Lac des Bois, jusqu^a au- cune partie de la riviere Mississippi, laisera toute la riviere Winnipic au nord, et la meme chose ar- rive ra si une lignc etoit tirce vrai ouest, et par consequent, la riviere est hors des limites des C- tats Unis de l'Am6rique.('*) jlttorney 'General — Now oir, the Dalles. Mr, Bouchette, — Suivant la carte de Mons. Ar- rowsmith ils sont a quatre lieues au nord du Por- tage des Rats et consequemment hors des Etatt^ Unis.(;o Chief Justice Sewell. — The Dalles, are they on the Winnipic ? Mr. Bouchette. — Oui, au nord du Lac des Bols et aussi du Portage des Rats.(' ') Cross examination by Mr, Stuart, What age are you Sir.^ Mr. Bouchette. — I am nineteen years old. Mr. Stuart. — I observe you have a map before you, what map is it .^ (1*) A line running from the most north-western point of the Lake pf the Woods to any part of the river Mississipi, will leave the whole of the river Winnipic to the north, and the san^e thing will happen if a line be drawn due west ; and consequent- ly that river is without the boundaries of the United States of America. (") According to Mr. Arrowsmith's map, they are four leagues to the north of Portage des Rats, and consequently not within the United States. (»•) Yes : to the north of the Lake of the Woods, and alscrof portage des Rats. B.'i .1 11 23 Mr, BouchetU,^i \b the map lately published bj my father, the surveyor-general. Mr, Stuart, — I believe you never were at any of these places beyond Upper Canada, or at the mouth of the Ohio, or ever out of Lower Canada, never I believe in the United States ? Will you reply in French ? Mr. Bouchette, — Je n^ai jamais 6t6 k rembouchu- re (de la riviere Ohio ni au Lac des Bois, ni a la riviere Winnipic, je suis sorti du Bas Canada et j*ai ete dans les Ctats Unis, roais non pas a cette par- tie. Ma seule connoissance des latitudes et long- itudes est tirde d^apres la carte de mon pere de- vant moi a present, et celle de Mons. Arrowsmith, publie6 en 1795. Mr, Stuart, — Vous avez parl6 d'une ligne comme etant la limite du Haut Canada, est-elle sur la carte de votre pere ? Mr, Bouchette, — La, ligne verte sur le plan de- vant moi en manuscrit, prolongee de 88^ 58' ouest longitude et courant vrai nora, a ete copi6c d'un plan par Emanuel Bo wen, en 1775, a Londres. Elle court vrai nord de la confluence des rivieres. Sur d^autres plans la ligne ouest du Haut Canada, est marquee de courir depuis Tembouchure de la riviere Ohio, dans le Mississippi jusqu^a sa source, dans le Lac Turtle.('») • (»•) Mr. B. — I never was at the mouth of the rirer Ohio ; nor at the Lake of the Woods, nor at the river Winnipic. I have been out of Lower Canada, and in the United States, but not in that part. My sole knowledge of the latitudes and longi- tudes is derived from my father's map, now before me, and Mr. Arrowsmith'8, published in 1705. Mr. S. — You have spoken of a line as being the boundary of Upper Canada. Does it appear upon your father's map ? Mr, B. — The green line upon the manuscript map before ne, prolonged from longitude SS** 58' west, and running due north, was copied from a map by Emanuel Bowen, in 1775, at LondoQi it runs due north from the confluence of the rivei^. . 24 19' II li ^^11^1 If! T jifr. Stuart — Here is a purple line, what doe» that shew ? M: Bouchetie, — That is piincipally for a head- ing to the map, it is, hcwever, copied frooi some map; hut I do not recollect of what geography. Mc» Stuart. — I observe another hne, Bui I hard- ly know what colour to call it, (though blue I be- lieve.) as marking some boundary. Mr. Boucheite — It is a line denoting the boun- dary fixed by the treaty of Utrecht, and is taken also from Emanuel Bowen, and there is also a line on the map taken from Bennett's, being the boun- dary of the Hudson's Bay territory. Mr, Stuart. — I imagine Sir, you know nothing of the correctness of any line under the treaty of Utrecht? ' Mr. Bomhette.' — No, I have read the treaty, that is all. Ml'. Stuart. — The same I presume, with respect to the Hudson's Bay territory? Mr. Bovrhette. — Yes, certainly, I never was there. Altorney-General. — I really do not see what we have to do with the Hudson's Bay territory, or iVlr. Bouchette's knowledge of it. Mr. Stuart. — It may probably appear very im- material to my learned friend, the Attorney -Gen- eral, but it is very material to us. The map was here handed to the Court. Mr. Justice Bowen. — From what geographer is the south boundary of the Hudson's Bay taKen? Mr. Bouchette.—'F rom Emanuel Bowen. Chief Justice Sewelt. — I thought, and you cer- tainly did say just now, that that line was copied from Bennett. In other maps the western limit of Upper Canada, i« drawn as running from the mouth of the river Ohio in the Miwissippi until its source in Turtle Lake. rWl 25 Mr, Bouchetie^ — No Sir, the line from Bennett, is the line running from St. Croix river to the highlands, and thence along them. Chief Justice Sewell. — Here is a line on 49** lat- itude. J\lr, Bouchette,-''Thsit is from Emanuel Bowen also, et tiree par les commissaires sous le trait6 d^Utrecht, et la lign^ marquee en violette est la ligne sud du territoire de la Baie d^Hudson, d'a- pres le plan d^Emanuel Bowen.(^') Wm. bachelor COLTMAN, Esq. Sworn. •Attorney-General. — Are you Sir, a Magistrate for the Indian territories, as well as for tnis dis- trict. JUr. Coltman. — I am a magistrate for this dis- trict and a commissioner in the Indian territory. Mr. Justice Bowen. — Let the examination be in French, if you please. Jlttomey General. — A fez vous et6 dans le terri- toire Sauvage, et quand ? Mr. Coltman. — J^ai ete dans les territoires Sau- vages, j'y etois I'annee pass6e.(*') Attorney-General. — What do you consider the most north-west point of the Lake of the Woods } Mr. Coltman. — Mon esprit etant bicn occupe par Taifaire de ma charge, je n^ai pas fait des od- servations particulieres sur le local, mais j^ai tou- jours regarde, et je considere moi-meme, le Por- tage des Rats, comme etant Fendroit le plus au (» •) And drawn by the commissioners, under the treaty of Utrerht, and the line coloured violet, is the southern limit of the territory of Hudson^s Bay, according to Emanuel Bowen's map. (*^) A, O.— Have you been in the Indian territory, and when ? {JUr. C. — I have been in the Indian territories, I was there last year. ! ! . * I 26 nord-ouest du Lac des Boi8,^t celad*apres ce que j'&i remarque. JVlais je n'ai pas eu occasion de faire des remarques exactes sur les lieux. Attorney-General, — Sans doute vous avez con* noissancG de la riviere Winnipic. Sort-elle dix Lac des Bois, et ou descend elie ? Mr, CoUman, — II est vrai que la riviere Winni- pic sort du Lac des Bois e4 descend dans le Lac Winnipic. Attorney-General. — Combien de distance y-a-t-il entre les deux ? Mr, Coltman, — ^Je ne puis pas le dire au juste. Attorney-General. — Non pas au juste, mais com- bien de lieues pensez vous ? vingt ou trente ? Mr. Coltman. — ^Je pense environ une centaine de lieues ; no, not quite so much ; probably eighty ; probablement de quatre-vingt a cent lieues.(") Attorney-General. — What is the general course of the river Winnipic ? Mr. Coltman. — Le cours general de la riviere Winnipic est au nord-ouest ou environ ce cours^ mais if est n^cessaire que je disc encore, que j^ai 6t£ si bien presse d'autres affaires, que je n*ai pas ilii (a a) Jil,.. c. — My mind being much occupied by the busi- ness of my mission, I did not make any particular local obser- vations, but I always understood, and I myself consider, the . Portage des Rats to be the most north-western part of the Lake of the Woods, and that also according to what I observed, but I bad no opportunity of making exact observations on the spot. A. G You have, no doubt, a knowledge of the river Winnipic. Does it run out of the Lake of the Woods, oi into it. Mr. C, — It is true that the river Winnipic runs out of th«f Lake of the Woods, and into Lake Winnipic. A. O. — What i»^the distance between them? Mr. C. — I can not say exactly. A. O. — Not exactly : but how many leagues do you think ; twenty or thirty ? Mr. C. — 1 think about one hundred leagues ; probably fr^p eighty to a hundred leagu^. ou le terns de ^ire des remarques tres particifr lieres.(») Attomey-GeneraL — Is any part south, of a line drawn due west from the north-west angle of the Lake of the Woods. Mr, Coltman. — ^Je pense assurement que non. Je ne crois pas qu'aucune partle de la riviere Win- nipic se trouvera au sud d'une ligne courant ouestf du point le plus nord-ouest du Lac des Bois, ou au moins, une tres petite partie.('*) Mtomeu-GeneraL — It is hardly necessary to ask you, if a line drawn from that point to the Missis- sippi, would leave any part of the Winnipic to the south? Mr, Cokman, — Sans doute que non. C'est plus au sud, et une ligne courant du Lac de^ Bois a la riviere Mississippi laissera toute la riviere Winni- pic au nord>ouest d'une telle ligne.('^) Chdef Justice Sewell. — Such a line must necessa- rily run almost due south. < Ittomey-General. — Do you know a place called tue Dalles? Mr, Coltman. — ^J*ai connoissance d^un endroit appele ies Dalles, je Pai passe deuxfois.C) Chief Justice Sewell, — Are the Dalles upon the river W innipic ? ('*) The general course of the river Winnipic is nor(h*wcst« or about that course ; but it is necessary I should repeat^ that 1 had no time to make particular observations. ('*) I think assuredly not. I do not believe that any part of the river Winnipic, would be to the $ouih of a line running west from the most north-western point of the Lake of the Woods, or at most, a very small portion. (3<) Without doubt it would not. It is more to (he south, and a line running from the Lake of the Woods to the river Mis- sissippi, will leave the whole of the river Winnipic to the north- west of such a line. (**) I do know a place called the Dalles; I passed it twice. .1 I' < m i- II ■:!!■ i >.■ m 28 Mr. Coitman. — ^Tlie spot called the Dalles, is a part of that river. jiitovtiey-General. At what distance are the Dalles from the Portap^e des Rats ? Mr, CoUman. — Je ne puis pas le dire avec certi- tude etatit toiijours accoutume de lire dans le canot dans les pays sauvages, mais les endroits ne sont p^s pres-a-pres, ils sont, comme je penserois, a la distance de deux ou trois hcures de marche.(*'') Jittomey-Genernl, — At what rate Sir, do you gen- erally travel in the canoes. J\Ir, Collman. — We go just according to the cur- rents we meet with. Our progress is entirely re- gulated by them; but perhaps generally a league and a half, or two leagues per hour. Chief Justice Sewell. — -Then it is perhaps about fourteen miles. Mr. Coltman. — I should think it more ; I should imagine it to be about five or six leagues from Por- tage des Rats. Mr. Justice Bowen. — To the north Sir, of Portage des Rats and Lac des Bois. Mr, Coltman, — C'est par une ligne courant au nord avec un pen d^ouest, et elles sont distantes de cinq ou six lieues, je crois, du Portage des Rats et du Lac des Bois.(*') Attorney 'General — Arc you Sir, acquainted with the place where Owen Keveny was killed, or said to be killed ? Mr. Stuart. — I object to that question being put, for if answered it could not be made evidence. {*'') I can not say with accuracy, bein^ always accuclomed to read whilst travelling in a canoe in the ludian countries ; but the places are not very near to eaci;i other; they are 1 should think at the distance of two or three hour's march. (**) It is by a line running to the north with a little westing, ond they are distant from five to six leagues, I believe, from Forlage des Hats and the Lake of the Woods^ The place must have a name, and must be identi* fied before any question can be put relative to any thing whatever, that maj be supposed to have oc- cured there. Chief Justice SewelL — It can be a matter of no consequtiiice to put the question ; we know enough of this cabC to know, that if the murder was com* mitted at all, it was committed at the Dalles, or very near to them ; but you must first establish the fact. Attorney 'General, — For the present I have done with Mr. Coltman ; reserving to myself the right hereafter, should it be necessary, to examine Mr. Coltman again. Chief Justice SewelL — Certainly, Mr. Attorney- General. Cross examined hy Mr. SlnarL You speak, I ihluk you have said, Mr. Coltman, about the boundaries, and other places you have mentioned in your examination in chief, only from belief? Mr. Collman. — I speak about the lines and other places, only from belief. Chief Justice jSctt;c//.-— But from having been there also. Jlfr. Stuart, — Yes, your honour, but Mr. Coltman adds to his having been there from belief only. — Will you give your former answer to the jnry, in French Sir ? Jtfr. Collman. — Je parle seulement d'apres ma croyance, etant generalement occupy a lire quand j'ai voyage dans ces endroits-la, et je n'avois pas eu d'occasion de faire des remarques particulieres sur le local de la riviere Winnipic.(^^) (••) I speak only according to my belief, being generally er»« gaged in reading whilst travelling in those parts, and I had n >t J ■' f H ■ Iti i!P yr^M ii'i r I . l! Ii I • P ib- 1 :• I fill,! 30 Mr, Siuart.'^Am I to understand you as speak* -ing in the same way, when you say that the Por- tage des Rats is the most north-western point of the Lake of the Woods ? Mr, Collnum, — Oui, je parle d*apres la memc croyance, une croyance aussi foiidee sur cette cir- constance-ci : on ni^a dit que c'est le point le plus au nord-ouest, et quand je I'ai pass6, je n'ai rien vu {)our m^en faire douter ; on m^a dit que c'etoit-Ja e point d'oii la li^ne couroit entre les Etats Unis de FAmerique et les Anglois, suivant le traite de 1783.('») Mr, Stuart — Can you say Sir, where it was you was told this, or at what time, whether before or after passing it ? Mr, Coltman, — Je ne puis dire Tendroit, mais c'^toit durant le passage, ou dans le tems que j^e- toia dans le haut pays, qu^on m^a dit que cetoitle point plus au nord-ouest du Lac des Bois.(^') Mr. Sttmrt, — You made no astronomical obser- vations, or any other, so as accurately to ascer- tain the latitudes and longitudes ? Mr, Coltman,'—!^ one whatever; my only ob- servations were those of the eye, in passing acci- dental remarks. Chief Justice Sewell. — Then I will add. Sir, an opportunity of making particular observations on the localities of the river Wihnipic. (SO) Yes : I speak according to the same belief, a belief lilte- wise founded upon this circumstance. I was told that it was the most north-western point, and when I passed it, I saw nothing that could make me call this in doubt. 1 was informed that that was the point whence the boundary line ran between the United States of America and the English, agreeably to the treaty of 1783. ('*) I cannot say where, but it was on the passage, or du- ring the time I was in the upper country, that I was informed . It was the most north-western point of the Lake of the Woods. SI •« d^apres mes observations, ou remarques en pas* « sant/Y") jflr. Stuari. — Your honour will remark, that my question was not only whether Mr. Coltman made any astronomical ol)servations on the places, but also whether they came under his eye in such a manner as accurately to observe these two pla** Ces, and Mr. Coltman's answer is in the negative, they did not. Chief Justice SewelL — You spoke of Portage dea Rats. J\tr. Stuart, — I spoke, or intended to speak, of both places, your honour, and Mr. Coltman's an- swer referred to both. Is not Fort William, Sir, reputed generally to be in the Province of Upper Canada ? Mr, Coltman, — Oui, le Fort William est cense or- dinairement etre dans la Province du Haut Cana* da, et j'entends qu'il rest.(") Solicitor General. — I submit to your honour, that there is nothing in this case to which this can ap- p'y- Mr, Stuart,^We are not called upon at pre- sent to shew its application ; it is a fact and there- fore evidence. Solicitor General. — But I contend that my learn- ed friend, Mr. Stuart, ought to shew how he In- tends to apply evidence, which prima facie has no bearing on the case, before he is entitled to pro- ceed^in such a course of examination ; I therefore thought it right to check it in the commencement. ^ Chief Justice SeweU. — All that Mr. Stuart has obtained, is the naked fact that Fort William is. U'l 0>. ('*)** According to tny observations, or remarks made ia passing.'* C)Yes: Fort William is usually considered to be ia tb« ProTince of Upper Canada, and I understand it to bs so. »*?«.r r ;,ii't*" 1, • > > 1 ■ ill i^' 32 according to general repute, in Upper Canada. Whether anj or what use he may propose to make of it, we cannot saj ; as a fact it is evidence. Mr. Stuart. — Do not writs issue in the western district of Upper Canada on that presumption. Mr. CoUman. — The chief justice of Upper Can- ada told me Solicitor General. — You must not tell us that Mr. Coltman. Mr, Stuart. — I will ask you Sir, is it not a mat- ter of public notoriety^ that the processes of the magistrates of the western district, are issued for offences at Fort William and executed there ? Mr, Coltman. — Oui, il est notoire que les writs des magistrats du district ouest du Haut Canada, sont emanes pour etre executes a Fort William.P*) Mr, Stuart, — You have traversed a good deal Sir, in that country, did you observe any vestiges of French forts above Fort William in your way to Red River? Mr, Coleman, — I do not recollect that I did j I do not think I did. Chief Justice SeweU, — Is it worth while to take that } Mr, Stuart. — No, it is not necessary, I have done with Mr. Coltman at present, we propose to examine him on the defence. 'I' SAMUEL GALE, Esq. iSworw. Attomey'General, — You have been in the Indian territory I believe Sir ^ Mr. Gale, — J^ai ete dans le territoire Indien I'ete dernier. (**) Yes: it Is a matter of notoriety that writs are issued by the magistrates of the western district of Upper Canada, to be executed at Fort William. .■.) 31 j^/lomey-Crentfral— Avez vous descendu la r)- tiere Winnipic ? ^ Mf' Ga/is.— Oui, j*ai descendu la ri?iere Win* Bipk depuis le Lac des Bois, jusqu'au dedans du Lac Winnipic.(**) ^ITonuy-CrMMro^Do jrou know the Portage des Rata? Mr, Gak.'i^e connots le Pbrtage des Rats.([") JtUomey-Generat, — ^What course has the river Winnipic, from Portage des Rats to Lake Winni* pic ? Mr. Gale, — iSon cours depuiiB le Portage dea Rats jusqu'au Lac Winnipic est le meme comuM en avanty nord de nord'Ouesi, Chief Justice SewelL — ^Nord tirant a Touest un peu? Mr, Gak. — ^Oui, moins cependant ft Pouest qu*au nord.(") jSitomey-GeneraL — Then the whole is itorCfb, is it not ? Mr, Gak,~^e ne voudrois pas parler positiTe* ment, mais je crois ^u'une ligne tir^ de la source de la riviere Winnipic dans le Lac Winnipic, seroit au nord de nord ouest: mais cimme avocat, je nt voudrois pias dira qu^une telle liinie est une liime nord-Cy ^ ■» "» ('<) Mr. G.— I was in the Indian ttmUxrw latt summer. J9, C— Did you go down the river WiOlkipic ? Mr, G. — ^Yes: I went down the ri?er Winnipic, firolD the Lake of the Woods to within Lake Wiiknipic. (s*) I do know Portage des Rats. ^3'') Mr, O.— Its course from Portage des Rats to Lake Winpipic is the same as before, north of north-west. C, J, 5.-^North tending a little to the west ? JIf r. G.— Yes : nevertheless, less to the west than to the north* {*•) I should not like to speak positively, but I believe that a line drawn from the source (beginning) of the river Winnipic in Lake Winnipic, would be to the north of north-west, but, as a lawyer, I would not say that such a line was a north line. c . 34 ! -fit i 'i. Chief Justice SeweB — From what we have heard this morninff, I think it would puzzle a dozea lawyers to describe a line. Aitorneff'GeneraL — Are you, Sir, acquainted with the Hudson's Baj territory, and its line of separa- tion from the province of Upper Canada, by maps Dr any other way ? J\ir, Gale, — I have never seen a map iti which they were correctly delineated, accord mg to my idea. Attorney- General. — By the treaty of Utrecht, was not tne boundary established ? Mr, Gale, — I know that by the treaty of U- trecht, no line was ffiven uor any boundary fixed, arto the Hudson's Bay territory South, or on the side of Upper Canada. 1 have examined that treaty for tne purpose of ascertaining. Je n^ai pas connoissance qu'une ligne ait ete tir^e entre Ie9> teWitoires d'Hudson's^Bay et le Canada, en consequence du traits d'Utrecht } et ce traite ne doiinoit p^a une ligne des limites.('*) Cros^ examnaiion 6y Mr. Sluart. Dp you mnan Sir, to sajr positively, that no part of the river Wiunipic is in a more southern lati* tude than Portage des Rats ? Mr, Gak,'^i perhaps do not know precisely where it commences. I considered that f enter- ed it at Portage des Rats, and I do not think that any part is more south, but it may perhaps begin a mile or two Ware. Mr, jS/f//ir/.— Win you undertake positively to say one way or the other ? ('*) I do-not know that any line has been drawn between the territories of Hiiditon's Bay and Canada, in persuance of the treaty of 'Utrecht, and that treaty did not describe a boundary line. ' r ■■ i I ' 35 Mr, Gaie.'—l should not like to be positive, but I Tvill mention why I think I am correct, as to its course. Intimated to sptak French, J^avois une petite boussole devaht moi, et j^ai remarqu^ que fe cours |B[^neral de la riviere Wia- nipic est, comme je Tai dit, pendant une petite distance, plus au nordqu'apre8.(*') Chief Justice Sewell, — For what distance, Sir, does its progress preserve the more noctherlj course ? Mr. Gale. — Perhaps about ten or twelve leagues from Ihe Portage des Rats ; the whole course of the river is certainl} not due north, but if a line was drawn from its commencement at the one lake to its discharging itself into the other, the course of the river would certainly be more north than any other* HUBERT FA YE, Sworn. Examined by the So^ Ijkcitor General. Je suis voyageur; en 1816, j'ai ete au service de la compagnic du Nond-OuQst, vers la fin de Pete de cette annee, je suis parti du Lac la Pluie, dans un canot, pour aller vera la Riviere Rouge. Solicitor General — La quatrieme journ^e, ave» vous rencontr6 des canots ?(*') Mr. Vanfelson. — I object to that question as totaUj improper; the Solicitor General can put, did he meet a canoe, and then, at what time ? (*o) I had a ^mall jcompa^s befone me, and I qbsenred that % general cpurse pf th|e;,i:i;y,er WjQnip|c is a9 1 have said, for a short distance, the course is more north than afterwards. (**) H, F. — I am a voyager. Id 1816, I was in the service of the North- West Company. Towards U)e end of that yeat I le^ Lake la PJuie, in a canoe to go towards Ked River. 1$. G.— On the fourth day did you meet any caooef^ R 1" SI I r#) Ki. Hi,, 't tmy' " M'' m I ri lii' SoUeiior CrtMraL'-^l do not reouire to be told what I ma/ put, or how it shoula be asked. Mr. Vanfelson, — ^The learned Solicitor General must be aware that he can not be permitted to put a leading question ; it was his putting such a one that led me to interrupt him. Chief Justice SeweiL — Do not let us waste our lime in altercation. Quel jour avez vous rencontre quelque chose, et quoi?(^*) Faye. — Le quatneme, ou peut-etre le cinquieme jour, nous avons rencontr^ dans la Riviere Win- nipic deux canots — II y avoit dans les canots cinq Mitifi ou Boit BrUdU^ des bourgeois, et un pri- sonnier nomme Keveny qui avoit des fers aux mains. II y avoit dans le canot avec moi, mon- sieur Cadotte et monsieur McDonnell, et ils me donnerent le prisonnier en charge. Monsieur Ca- dotte commandoit notre canot. Cest un commis de la soci^t^ du Nord-Ouest. Je ne sais pas s'il se nomme Joseph. Nous sommes d6barques & terre aussi bien que les gens des deux autres canots, et McDonnell et Cadotte nous out donnd le pri- sonnier en charge pour Temmener au Lac la Pluie. Le prisonnier £toit en charge de moi, et il y avoit dans le canot avec moi un nomme La Pointe et Joi6 ou Fih de la Perdrix Blanche qui est un sauvage, et nous avons pris la route pour retour- ner au Lac la Pluie, et monsieur M'Donell et monsieur Cadotte ont rest^ a terre. Quelques jours (trois jours peut-etre apr^s,) mais dans peu de jours, nous avons encore rencontre deux ca--^. nots appartenans a la soci^t^ du Nord-Ouest ; j*ai reconnu dedans Monsieur Stuart, Monsieur Thom- son et Monsieur Fraser. Monsieur Stuart a de- mande oik est ce que nous alliens ? et je lui ai (^*) On what daj did jrou meet anj thiog, and wbtt.dM you meet? P' 37 dit qu*on alloit au Lac la Pluie avec un prison^ nier. II dit qu*il aimeroit le voir et il l*a vu. Nous ^tions alors dans le Lac dee Boig. lis 96 sont parl6 quelquefois. Apres, monsieur Thomson nous a conseill^ de retoumer, parcequ^il n*y avoit point de canots alors qui devoient descen- dre a Montreal — nous avons, cependant, conti- nue notre route vers le Lac la Pluie, et nous avons rencontr^ la meme joumee une brifl;ade de canots appartenans a la bocIM du Nord-Ouest, sous la cunduite 4^un nomme Joseph Paul. Je demandois Joseph (le sauvage) pour revenir avec Paul, mais il n j consentit pas. Je suis revenu dedans le canot, et alors nous rvons decide de re- virer avec lui, ayant manque d ' provisions, et je ne savois pas le chemin, ni La Pointe, m )e sau- vage plus que La Pointe, ni moi-meme, c'est a dire le chemin ou la route pour le Lac la Piuie. ' Sious avons suivi la brigade de Joseph Paul i^Muant une journ^e, mais le lendemain il nr;?s a degra- de et nous avons perdu de vue la b^igc 'k, parce qu*elle marchoit, et notre petit canot ne pouvoit les suivre ; nous avons mis a terre, on nous a don- nk pour guide le sauvage, fils de la Perdrix Blanche. Le meme soir que nous ayons mis k terre, le sauvage m'a fait oien comprendre qu'il vouloit tuer le prisonnier Keveny. Il ne faisoit que jouer avec son fusil, en le mett^nt comme pour le tirer, et disant pouj^ pouff; par ces gestes, j'ai bien compris quMl voulcit ^jer monsieur aeve- uy. Je ne sais pas s'il a coup^ des buttons ; je ne me rappelle pus quMl 1'ait fait(^*) («3) On the foiiHb, or perhaps on the fifth day, we met two canues in the ri?er Winnipic. There were in the canoes five Metifb^ or Bmi Brvliit some gentlemen, and a prisoner of the name of Keveny, who was handcuffed. Mr. Cadotte, and Mr. M*D. !l I'. 1 1 i 'J 1 l 1 ,1 ::.|l 1 ,'l r1 I I. 4S ^hich you are desirous to produce, arc proper to be submitted to them, whether you have proved suf- ficient to justify us in allowing them to be brouglit before the jury. Ilad De Reinhard been present, participating in the conversation, it woulJ be an- other thing, but at present you prove nothing oC the kind, not even tiiat he heard the conversa- tion, for the witness will not sAy whether he did or did not — indeed the commencement to this be- ing evidence is wanting, namely, a proof of con- nection. It does not appear upon the evidence as yet, that De Reinhard heard what passed or even knew these men, it is probable that he did, but you have not shewn it. Attorney-General — -I should submit that as we have proved that this^man told NrLellan that the cause of his quitting (he savage, was his intention of killing Keveny, and also, that M^Lelian^s ob- servation " que ce rCStoit pas voire affaire^^^ was made while De Reinhard was so situated that he might have heard, we have shewn su^icient to entitle us to pursue the course of examination ta- ken by my learned friend ; more I think we can not prove, for it is impossible absolutely to prove ' that a man bears a thing. * SoUeitor GeneraL-^ will ask him whether he did teir M'Lell&n why they quarrelled with the savage— -avez yous raconte a monsieur M^Letlan, poarquoi le sauv^ge vous a quitt^ ?(*') Jlfr. Justice Boi'ven. — ^Had you not better let bim recount his own story iu his own way, and we shall then see wtiether any, and vvbat part of it, 18 evidence. Mr, Stiiafi, — F mui^t object to that, except as lie shall prove that De fteinhard was present; (**) Did you relate to Mr. Of^Leilaa why the Indian had ;eft'7o«? t, t; 47 we can not consent to his bein^ permitted to re* late any thing, which is not positive and undenia- ble ovidencc, according to the strictest rules for its admission. We have a very serious dut^ to perform to the prisoner, and, teeling its weight* we can adopt no other course. Chief Justice Seiaell, — Nothing has been produc- ed to shew, if even it were admitted that he heard the conversation, that he approved it. A man may certainly hear a conversation without approving it, and surely the mere hearing of a conversation can not attach crimirnlity. Solicitor General — His conduct aAerwards, will perhaps. Mr, Stuart, — My learned friend, the Solicitor General, speaks ofhis conduct afterwards. If that connects him with these transactions, it ought to be brought forward now, for as yet there is no- thing to do it. dhief Justice SewelL — The indictment we are trying is one for murder^ and it also alleges qo the part of the prisoner, M^ellan and MainvUle, a conspiracy to commit it, as well as the actual murder. To sustain that allegation, you must certainly shew a participation, eiti)cr by act, word, or^eed. At present you have done neither, but yet YOU wish to oe permitted to go into a conversation in which you do not eten assert that he shared, which you do not prove that he even heard, andi if he did, ypu bring no evidence to shew that hc^ approved, SQUdlor General— li is no matter to me wheth** er he approved it or not, that is a point for the jury to decide on, from a view of the whole case. Chief Justice SewelL — But to us it is, and a ve- ry great matter too, for we can not allow you to pursue an examination upon a conversation that the prisoner did not share in; a conversation t ['*■' >')l •^', '.■■II 4S .which he might or might not have heard, ahd which, till you prove he heard, you certainly can not be preparedT to ahew that he approved. Solieitor Genera/.— -Avez vous embarqU^ dans )e canot de monsieur Archy ? ^aye.— Oui, je me guis embarqu^ et La Pointe auBsi, dans le canot de monsieur Archy.(*^) Solicitor General, — Then I am to understand that your honours think I can not question him as to the conversation on fthore. Chief Justice SewelL^—MoBt certainlv, that is my opinion, unless you shew by some evidence, that he heard it and approved of it. I do not know whether Mr. Justice Bowen concurs with me or not, but that is my opinion. Mr. Justice Bowen, — An opinion in which I per- fectly coincide, you can not by this witness prove that he even heard the conversation, and ir you did, 'you must ^o farther before I should cotisider it admissible evidence against the prisoner. You should demonstrate by some act of his, that he approved as well as heard it As the evidence stands at present, the prisoner appears to me in a situation, not dissimilar to that of a servant, in the canoe of his master. A conversation takes place between the master and some other persons^ which he mi^ht ilot have heard, for it does not appear whether he did or did not, it is left com- pletely uncertain, but if you went so far as to prove he heard it, does it necessarily follow that tie approved the conversation.^ I consider the question as totally beyond the rules of evidence. Sidieitor Geyter« St. Rial. — Je soumets a la cour» qu'il ne salt pas le terns, et que-- — (*') SoHeiior General. — My learned friend mistakef^ he does know the time, for he fixes it to the very day ; he does not recoiled the precise he 'ir, in- deed it is unreasonable to suppose that he Would $ these people have no idea of time, except: by the sun. C'^toit le meme jour, n*est-ce pas ? qud vous avez rencontr^ les canots ? Fap. — Oui, c'etoit le meme jour : auparavant nous avions cherch^ Tisle ou nous I'ations laiss^^ mais sans le trouver. Quelqu'un de notre ca- not, (mais ce n^est pas moi,) a demands auK gens s'ils avoient connoissance du prisonnier Ke- Veny, et ils ont repondu, qu'il 6toit un peu plus loin en haut des Dalles ; il y aVoit peut-etre cioq ou six lieues de distance entre Pisle oii nous avona laiss^ Keveny, e^ celle oiH nous Tavons trouv^. L'isle o^ nous I'avons laiss^, est en has dea Dalles^ et I'isle o^ nous I'avons trouv6 est en haut 2: [<*) S. 6. — Did you peteeive the Indian in Uie canoe? T. F. — Yes, I did perceive him. Before I embariEed I saw that the Indian, that is to say, Joseph, Fils de la Perdrix Blanche, l»a8 in Mr. Arcby's canoe. We set off for Lake la Pluie, and the same day we met other cacoes ; I do not know the hour ex- actly ; I can not say it. Mr, V, de St. RkU.-^l submit to Uie court that he doea not know the time, and tha t ■ » !• * , ♦■■ ■ n 50 des Dalles ; ce n^etoit pas moi qui demanda auK gens des canots de la riviere Cjgne s*ils avoient cunnoissance de monsieur K^vcdj. U y voit nuinze personncs dans notre' canot. M\ ."^leur Archy deuiaudoit aui gens tie la riviere ^ jU^'^f comment Keveny faisoit pour vivre, et quelqirun, mais je ne puis pas dire qui, a repondu ** il achete ^ quand il peut, et quelques fois il vole ; il est en "hautdesDalle8.'*(**) Mr, Sttmrt, — 1 feel obliged to enter my objee- tion to these questions ; they certainly refer ta nothing that can be evidence in the case, on« way oi* the other, but I have very strong objec- tions to this irregular mode of examining a witness. Solicitor General, — No doubt the learned gen- tleman has ^objections to these questions, and so I expect he will to any which make against the prisoner. Mr, Sluart, — I merely object to these questiona professionally, it is from no wish to conceal any part of the case, but the irregularity of the course my friend is pursuing, strikes me as being so ap- parent, that it would be a most culpable profes* fi 1 1 I .' J w ml I f,; I (**] 5. Gf. — It was on the same day, was it not? that you met the canoes. ^ H. F, — Yes, it was the same day. We had before sought for the Island where we had left Keveny, but wilhout findiiw bim. Some one belone;ing to our canoe (but it was not me,) asked the people whether they knew any thing of Keveny, and they answered that he was a little farther on above the Dalles. The distance between the island where we had left Keveny, and that where we found him, was perhaps five or six leagues. The island where we left hinu was below the Dalles, and the* island where we found him, was above the Dalles. It was not I who asked the people of the Swan RiVer canoes, whether Ihey knew any thing ol' Mr. Keveny. There were fifteen persons in our canoe. Mr. Archy asked the Swan River people, how Kevpiiy managed to live, and some one, but I do not know who, answered ** he purchases when he can, and someti^t bt ** steab : be is above the Dalles.'* 61 ftional remisioeis not to protest asaingt it. If the Jlourt decide against me, I have done ; I have no esire to take up the time of the Cotirt for a mo- ment ; it is a professional objection to the mode of examination, and not dictated by anj appre- hension of the consequences to the prisoner. But I will not trespass on the time of the Court, •hould thej thiuK it correct. Chief Justice SewelL — Not at all Mr. Stuart ; we have just decided to the contrary. Why not, Mr. Solicitor, bring forward the unexceptionable part of your testimony? Why introduce a man the wit- ness himself does not know who he was, and there- fore can not prove a connection between the pri- soned* and the person speaking. Solicitor GeneraL — Qu*est-ce que De Reinhard ft dit ; vous en souvenez-vous ? FayC'^e ne me souviens qu^est ce que De Reinhard a dit ; je ne me souviens pas d^avoir en- tendu De Reinhart dire quelque chose en allant a I^isle ou nous avons laiss^ Keveny avant de ren- mais flur ]ui(De contrer les canots de la riviere Cyj leur r^ponse qu^ii etoit en haut des I Reinhard,) a dit, '* qu'il Pavoit pris prisonhier et '^si on le retrouvoit, quMl n^auroit pas soin.'* Solicitor GeneraL — ^£toit-ce en menace qu'il parloit ? Fave, — Je he sais s*il Ta dit en menaces ou non. Solicitor GeneraL — Dites-nous les mots qu'jl a parle.^ Faye, — II dit ^ c'est moi qui Tai pris prison- ^ nier, et si je le retrouve, il en auroit soin." Solicitor General — L'avcz-vous eutendu dire autre chose ? Faye, — Je ne l^ai pas entendu dire autre chose alors.(**) \m (> •) S. G.— What did De Reinhard say ? do you ncoUoct ? 52 ■I ff in ^ ii i t i ' Mr. Stuart. — 1 wish that to be taken down. SoUeiior General — Commeni comprehez-fbus ees mois : ** qu'il eh auroit 8oin."(* ') Mr. Stuart, — Surely the learned Solicitor Gen- eilil doen not suppose that we can sit still and al- \o^ such a question to be put It is eitrettiely unpleasant to be compelled by professional obliga- tion as well as by the imperious duty we owe to th(B prisoner, so ffeiquentfy to oppose the mode pursued in the examination. 1 certainly did not expect that the Crown officers would have adopt- ed a coursb so llabfe to interruption, and so very oBjcctiohable in every point of view. Soiicitdr General. — Surely I may put the ques- tion I have proposed, or if, as in the present in- stante, ^h equivocal expression is made use of, how are we to attain tble real iooeaning of the speak- eV, if a witness i^ liot to be permitted to explain wh1at he Understood by an expression. Wordf have force and meaning, accordmg to the manner in which they are uttered. Mt. Justice Bowen. — The words made use of here, I think sufficiently explain themselves, ^ I if. F, — I do not recollect ivhat De Reinhard said. I do not recollect having heard De Reinhard sav any thing in going to tlie island where ^Te had left Keveny, before meeting the Swan River canoes, but upon their answering that he Was above the Dalles, be, De Reinhard, ssid, •• thiiit he had taken him prison- ** er, and if he was found again he would not take care of him." S. G.— Was Ii in the manner of a threat that he spoke ? H. F.—I do not know whether he said it by way of a Uireat or cot. S. G.—- Te!l us the words he made use of. H. F.— He said " it was I who took him prisoner, and if he ** is found again, I will take care of him." is. G — Did you hear him say any thing else ? //. F, — I did not bear him say any thing else there. ^'>) How do rou understand these words *Mhat he would take care of bim.^'? fiS «* took bjm pritpner, and if I fiqd him ^11 |^e <* care of him. Jtfr. SttiarL — I believe the ^ words of the wit- ness were *^ si c;i le retrouvoit au^il n aqroit pat **soin,"(*") which would certainly bear a verj different import to **• V\\ take care of him/' Mr. Justice Bowen, — I have taken it ^own, and he said just now* I am confident, *^ c'est moi qui ^ Pai pns prisonnier, et si op le retfouvoit, qu^il **en auroit 8oin*"(*') Mr. Stuari. — lie said thf3 other too, I only want just what he does say taken down ; but I do wish that the whole of his answers may be taken just as be ffives them. Solicitor General — 4^^^ vous eptendu (][uelqu'- autre personne dire f **) Mr. Stuarf. — I ani really sorry to interrupt my learned friend so frequently, but I ^ust ojbject to this coui'se. Indeed I may be perqaittfecj to s^y, I am surprised tnat one so contrary to a(l pnuci- {^les of law, sliould hav,e been suggested by the earned Crowp ofllicers, and much moro so, that it should be renewed afte^ your honors have on tl^e former, as well as the present trial, decided audb oujestions to be inadmissible. SoUcitor General.— My learned friend argues 9on the admissibilitv of a Question which he did upon ^ot hear, for before 1 had put it )ie objected. A vjery certam method to b,e sure, of excluding tos- ti^^ony ; but, may it please the jCourt, I humbly C0K>teincl9 in a case like tliis, we .ought not to be bound 80 strictly as if the affair bad occurred in ('*) *' If he «rai found again, he would not take care of him. (* s) " It was I who took him prisoner, and if he waa found <* again, be would take care of him." ^•"J Did you bear any other penon lay ■ ■ n % I,- 11 m I J.i; III ^1 >'« 0« d4 this ^istricti where proof would have been easily within our reaeh. 1 should imagine that everj thine bearing on the justice of the case, mi^ht and ouffht to be admitted. We are only desirous to exhibit the whole of the facts, and we conceive we are pursuing the method best calculated to save the time of the Court, in the production of them. The case is not an ordinary one, and cer- tainly we are entitled to every reasonable indul- gence. Chief Justice SeweU, — ^Why should the proceed- ings in this case, be different from those ot others ? Can you in any case go into evidence of a conspi- |*acy for aparticular purpose before you prove the fact itself; most certainly not. Then what is there to distinguish this case so as to call upon us to in- vert, at least, (supposing for a moment the testimo- ny to be admissible,) the order of receiving evi- flence, according to the usual practice, which prac- tice is founded on the established and universally acknowledged rules for receiving evidence. The case has undoubtedly difficulties about it, but none that can justify, nor mdeed call for, exemption from this very general rule ; first prove a fact, and then strengthen it by corroborative testimony as much as you can. Jittorney'General — I wish merely on this point to put one question to the wttness, and } think it is one that is not liable to objection. Ecoutez Faye — Avez-vous entendu De Reinhard dire, apres la mort de Keveny, " qu'il avoit fait son affair«." i^flve.— Oui, je I'ai entendu. De Reinhard a dit cela.(") Mr, Stuart. — Certainly, your honours will not (»»J A. O. — Listen Faye — Did you hear De Reinhard say* aAer the death of Keveny, *< that be had done his busjpe^s ?" 4f. F, — Yes, I did bear it. De Reinhard said so^ in 55 &ke that down as evidence, or permit the Attor* Bey-General to put such a question. It is un** doubtediy a leading question. We appear really to lose sight of the very iirst principles applicablo, to the law upon the subject of evidence when such questions are proposed. Chief Justice Sewell. — Nothing can well be clear- er than the rules for the examination of witnesses. They are three: Ist. that on an eKamination in ehiei, leading questions are not to be put : this is a fundamental rule. 2d. On a cross examination, as the w*^nf^ss is not supiiosed to be friendly, but that the bias of his mincl may lead him to keep back perhaps a part of the truth, that restraint is not imposed, and tor the purpose of extracting the whde truth it is permitted to parties in cross examination to put leading questions. 3d. Anoth- er rule in conducting examinations is, where your own witness is an unwilling witness and manifests an hostile disposition to the party who has made him a witness, the examination in chief under such circumstances, is permitted to assume the shape of a cross examination, but this must be the consequence of a manifest indisposition on the part or the witness amounting to an impracticabil- ity of obtaining by the usual mode of examination, those facts which he is in possession of, and which it is essential to the justice of the cascy should be exhibited in evidence ; these then being the rules to be observed in the examination of witne.s:>es, there can be no difficulty in applying them, and certainly you can not be permitted to put a leadr ing question on an examination in chief. U is the peculiar privilege of a cross examination, and that for the reason I have assigned, namely, a supposed bias which is unfavourable to the oppo- site party, on the mind of the witness. With the ^xceplion stated in the third rule, there can be n* Jjfll f ■ ^ ■ JW t 411 ■ ' "'^i # !■ '! ^ 'f .''.< >. 1 t. t' ■ Ml as ; ■tf ■ i* 55 ridit in an eiamination in chief to put what are caU led leading questions. Bring a circumstance to the mind of your witness that appears to have es- caped it bj general questions as long as you like, but you certainly can not be allowed to ask a wit^ ness, did you hear such a one say that he would cut that man's throat ? or did you hear him sav that he would finish that gentleman ? undoubted- ly you coald not. ooliciior General — ^I should not consider them as leadiiiff questions. Chdef Justice SewelL — Should yon not? then I do not know one ; and you and 1 can never agree as to what constitutes a leading question. Mr. Juetiee jffotMfi.— You might put this ques- tion, did he or did he not hear any thing said, and by whom, and when, and if he answers af- firmatively, you may then proceed to examine him as to the nati^ie of what was actually said ; this you can do. Mr» S/mif/.— 'That is the question undoubtedly that my learned friend may put, for any other, or one of the nature he attempted to put, when I felt com[)elled to object, mignt, if a witness was careless about sacrificing the truth, place us in a situation from which we might be completely un- able to extricate ourselves. I trust the examina- tion will be so conducted as to render future in- terruption unnecessary, as f assure the learned Crown ofiicers, it is with extreme reluctance that I rise, and they, I am confident, will do me the justice to believe that nothing but a sense of duty from which 1 dare not shrink has produced the fre- quent interruptions which I have made already. Solicitor GeneraL'^Ayez vous entendu De Rein- hard dire rien autre chose ? F(we. — Oui, il a dit que " si on le relrouvoit ** qu'il n'auroit pas soin. Je ne lui ai pas en- «Sf«t! Of tendu dire autre chose alors ; jo 019 rappelle qu« De Reinbard a dit, apres que Kevenj ^toit morty *^ qu^il avoit fait son affaire :'* auparavant aue ooua nous soinmes rend us a terre, Mainville a dit, et ja Tai entendu, que si on le trouvoit, qu'it tueroit Keveoy, et qu^il auroit les bottes et le chapeau | et d'autres on t dit qu'ils prendroient le^ Iiardes, les habits et la chemise. De Reinbard n^a rieq dit, et je ne sais pas s*il avoit coonoissance de 1^ conversation ; je ne sais pas sll Ta entendue. II etait assis dans le canot su|r le meme banc ayec les bourgeois* il etoit aussi proche que mioii et jo Tai entendu, mais je ne sais pas s'il Pa enlepdu.(") Mr, Siuari, — ^I bcff that may be taken down, he says, I do not know whether De ^einhar4 heard or no. SoUeiior General, — I do not want it taken down, it forms no part of an answer to any question I have put to the witness, and therefore it is comt pletely unnecessary ; the witness is in my hands, and I do not think it necessary that \X should be^ taken. Avez vous debarque ?('^) Mr, Stuari, — I certainly muat object. With all due respect for the Crown bench ; and 00 gentle* man respects it more than myself— ^we stand here (*•) S. G. — Did you hear D«j PciiAard say nothing elpef H. F. — Yes : he said that '• U hfc vv ^re found again he vroul4. **jnc' ike care of him." I did noUicir him say any thing else then. 1 remember that De Rcinhard f>aid, aRer Knveny vtb^ dead» -' thfit he had dona his business.'* Before we got on shore, Mainviiie said, and I heard hiror that if he werr found/ he would kill Keveoy, and that be wouiU have the boots and the hat, and otben said that they M'ould take the clolbcs, the coats, and tbe shirt. I)c Reinbard said nothing, and I can not tell whether be knew of tbe conversation. I do not know that he heard it. He was wilting in the canoe on tbe 8?mc benc^ i(ri(h the gentlemen. lie was as naar as I was, and I heard it| but 1 do not know whether be beard it. (•') Did you land? < , P- ill t4i l!;iii , I m ' Ul v.. :-*■ i ''^•' 1 ' *^l* \ ■' f • ii ■ « , f^ -^' T 5B upon equal terms, I know of no difference, and I ido not upderstand dictation, nor will I submit to it ; and I tiiink I see something^ verj like it We have a most trying duty to perform, and I should be unworthy of the gown I am honoured with, if I admitted any thing like the conduct of which I think I have a right to complain ; it is alike, in my bumble opinion, incompatible with good mannerS| as well as the accustomed practice of the Court. Solieiior General, — I beg to say that I consider it neither consistent with good manners, any more than with the custom of Uie Court, that an inter- ruption should be made and allowed, whilst I am } uttin^ a question ; and it is not the first time that these mterruptions have been ma(i«j ; they are certainly very irregular to apply no harsh«*r epi*. thet to them, ana being equally irreconcileable to good manners as to the practice of the Court, I trust my learned friends will abstain from them. Mr, Stuart, — I concei/o that in insisting that the answer of a witness should be taken down en- tirely as he gave it, I did not at all deviate from either the rmes of politeness or of practice in this Court.T— A part of tnat answer the Solicitor Gener- al wishes to pass over. Chief JiisCice Sewell,- — Allow me to interrupt you Mr. Siuart : the answer was taken down en- tirely, I have got every word of it. JisT. Stimrt, — I beg the Courtis pardon, I have iiomj ; that was all I desired. Soimtor General — Avez vous d^barqu6 a terre pi) Ton vous avoii dit que ous trouvericz mon- sieur Keveny ? ^aye.-<-Oui, apres que nous etions arrives la oO 6toit Keveny, nous sommes d^barq*'As, et mon- sieur Grant c ^te donner la main a F veny ; nous ^vons M dans un camp des Sauvages eusuite | ftpres monsieur Archy nous a ditv 69 Chief Justice SewelL — «< Nous a dlt,'* qui entei|fl ^ez VOU8 par nous ? Faye. — La Pointe ct moi-meme : monsieur Ar^ chy nous a dit d'embarqu^r dans son canot, dn sant en meme teins qu'il n*avoit pas de place poiip amener Keyeny dans Qon canot. De Reinhard a dit s^il avoit un canot qu*il n'auroit pas de soin de le prendre au Lac la Pluie. Je m^embarquoiv avec monsieur Archy, et nous sommes tons partis, ^ Pexception de De Keinhard, Mainvillo et Jo- seph, Fils de la Perdrix Blanche, que nous avon9 laisses a tcrre avec Keveny. Apres, nouB avons march6 environ deuK ou trois lieues, et nous sommes debarque«, et nous avons couche !a ; quel- 3ue terns apres qu nous avions drbarque, j^ai enten- u un coup de lusil du bord d^ou on venoit : en ce tems la, nous ^tions eiitre les Dalies et Ic Portage dcs Rats. Je ne sais pas si nous 6tions plus proche des Dalles, ou du Portage des Rats, mais nous ctions aiors entre Irs deux endroits. Quel- que tems apn^s, une demi heure je pense, j?ai vu un canot venir vers nous a terro j cY.toit peut-etre Perdrix Blanche, Kevenv' n'y etoit pas. Mon- sieur Archy, monsieur Cfadotte, monsieur Grant et un autre homme se sont avanc^s ; et on de- mandoit, et Tai entcndu, m^iis je ne puis pas dire le quel, *^ ce quails avoient Tait du priHouniex *' Keveny'? Quelqu'un dans le canot a rcpondu, " il '* est bien oO nous Pavons mis f ' mais je ne sais pas lequel d*eux a ainsi repondu, a ce tems De Rcir;- hard etoit dans le canot, le petit canot qi^aupara- vant on avoit achete des sauvages. Ce n'etgit pas le Sauvage qui le dit, je pense, parceque ja ne crois pas que Jose, Fils de Perdrix Blanche,^ parloit fran^ois assez pour repoudre cotnia^ f;. m I tf i'\. ;■"•< •*!!|i'' I' ">! I' li II n (fi Nil 60 ck ; idMb je ne puis pas dire leauol d^eux, ^cVst- a-dire de Mainville ou De Reinnard,^ Ta dit. II disoit ^ il est bien cacb6 oik nous 1 avons mis.** Le canot atoit plein de sang, et j*ai tu dans le fsanot ItBS bardes de Kevenj remplies de sang. Jo ies ai connu pour les avoir yu sur lui aupara- Tant. Je n'avois pas remarque qui d^barquoit premierement, mais ils ont debarqui tous les trois. C'^toit Mainyille qui debarquoit les bardes, et j'ai alors demands a Mainville '* ce qu*on avoit *^ fait du prisonnier Keyeny,'* et Mainville a r^- pondu, *' que lui et De Reinbard Pavoient tu^**^ De Reinbard £toit alors dans le meme endroit, $l la distance de la moitie de cette cbambre-ci, plus ou moins ; la moitif^ de la longueur de cet aparte- nient. Mainville disoit ^ que lui et Pe Reinbard ravoient tu6.** Nous ^Uons dans le meme endroit, jcampes tous ensemble, mais je ne sais pas si De Reinbard entendoit ou noq. Pe Reinbard a dit, et je Pai entendu, que ^' C*est un service qu*il a *^ rendu a cet bomme (Keveny.*') De Reinbard lie m*a jamais dit qu^il Favoit tu6. Mainville ip*a dit ces mots ^ c*est lui qui Tavoit tue." C'etoit Bssur^ment Mainville seulement qui m*a dit: *^ C*est lui et De Reinbard qui Tavoient tu6. Dja Reinbard ne m'a jamais dit que '^ c*est lui qui **ravoittue."C') (s>) S. G. — Did you land wbere you were told (hat you would find Mr. Keveny ? H. F. — Yes : when we arrived where Keveny was, we lao^ (ded, and Mr. Grant went and shook hands with Keveny. We were afterwards at an Indian encanopinent : after that Mr. Ar- |jhy told us C. /. S.— " Told w." Who do you understand hy w ? H, F, — La Pointe and myself. Mr. Arthy told us to embark in hit canoe, saying at the same time that he had no room to take Keveny in his canoe. Pe Reinhard said that if he had a canoe he would not care to take him to Lake la Pluie. I em* Mrked with Mr. Archy, and we all took our departuiiie, with •1 Mr, Sttutrt. — I trust the Court have got theM answers of the witness, for we consider them ve- ry important. Chef Justice SeweU, — ^I will read to him his evi- the eieeption of De Reinbanl, Mainville, and Joteph, Fib d* la Perdrix Blanche, whom we left on ibore with Keveny. Af- terwards we proceeded about two or three leagues, and then we landed, and we slept there. Some lime after we had landed I heard a gun go oflf in the quarter whence we came. At that tim* we were in the Dalles and the Porta^ des Rats. 1 do not know whether we were nearer to the Dalles or to the Portage des Rats, but we were then between the two places. Some time after, I think half an hour, I saw a canoe approaching the shore where we were. There were in it, De Reinhard, Main* ▼ille, and Joseph, Fils de la Perdrii Blanche. Keveny was not there. Mr. Archy, Mr.Cadotte, Bfr. Grant, and another man, came forward ; and it was asked, and I heard it, but I can not tell by whom, ** what they had done with the prisoner Keveny V* Some one in the canue answered ** he is well whore ** we have put him,*' but I do not know which of them it was who gave this answer. At that time De Reinhard was in the canoe, the small canoe whidi had before been purchased from the Indians. I do not think it was the Indian who said so, as 1 do not believe that Joseph, Fils de la Perdrix Banche, speaks French enough to have answered in that way ; but I can not say which of them, ^that is to say, of Mainville and De Reinhard,) it was who said it. He said ** he is well hid where ** we have put him." The canoe was full of blood, and I saw KevenvV clothes in the canoe, covered with blood. I kneir them m>m having before seen him wear thec^. I did not ob- serve who landed first, but they all three came en shore. It was Mainville who landed the clothes, and I then asked Main- Tille " what had been done with the prisoner Keveny,** and Mainville replied ** that he and De Reinhard had killed him.** De Reinhard was then in the same place, at the distance of half of this chamber, more or less. The half of the length of this room. Mainville said ** that be and De Reinhard had killed ** him.** We were all in the same place, encamped ail togeth- er, but I do not know whether De Reinhard heard or not. De Reinhard said, and I heard him, ** it is a aervive I have render- ed to that man, Keveny.*' De Reinhard never told me that he had killed him. l^ainville said these words to me, ** It is he " who killed him." It was most certainly Mainville only who told me ** that it wrs he and De Reinhard who had killed him.'* De Beinhard never told me " that it was he who had killed him." m < h '*^< I f i M*l :'f 62 iileoiie as I have taken it, I think I have it correct-* ly ; If he winheB then to explain or qnallty anjr part of it, he ^an. The CMrf Jusiiee then read the wtiness^e ieatitm^ ny, beginning at ^^le canot itoitpkinde sang^^ and Vfitneee admitted it to be correct. Solicitor General — There is one little Word which I think jour honour has mistaken the witness in, and which occasions a considerable diiTerenc;; from what the witness, I believe, intended to say. Chief Justice Sewell. — Yes, a very little word will certainly make all the difference ; whether he said je or tV is certainly a very material pointy but I have read to him his testimony, he admits it to be correct, and I believe it is, for I have strove to take all he did say ; I will however read it to him aj^ain, and he may add to, or explain, it how he likes, but I can not Alter what I have already taken. The evidence woe read by the Chief Justice^ and the witn^s again admitted its correctness. Examination continued by tlie Solicitor General J^ai vu le sabre de De Reinhard ; il a essuye son sabre qui ^toit ensanglantc — il 6toit k terre alors, et an tcms qu'il a essuye le sabre, il disoit ces paroles '^cVst un service qu'il a rendu :^' nous etions alors tons ensemble pres du feu. II y avoit fait^un partagc du butin de Kcvenv, et De Reinhard les avol^ separcs. De Reinharci a ouvert les valises de Keveny. Keveny avoit trois ou qua- tre valises, et De Reinhard les ouvroit— J'ai recon-* tiu les valises comnic les memos que j'avois vues auparavc^t, en la possession de Keveny. De Reinhard a ouvert les vaKses — ^il y avoit trois ou quatre que De Reinhard avoit ouvertet. II les avoit ouvertes avec dcs clefs ; j'ai vu auparavant des clefs dans la main de Keveny, et j'ai vu des i:' clefs dans la main de De Reinhard, mais JB p« puis pas dire que c^etoient les monies clefs ; mais . De Reinhard les a ouvertes (c'est-a-dire les cofires) avec les clefs qu^il avoit dans sa main, et je Tai vu. De Reinhard a tir6 les hardes et le butin hors des valises : il les a s^par^s : le meilleur du butin, il Pa choisi lui-memc, et Ta cach^ dans let bois; le mauvais, il Ta mis d^autre c5t6.— Lei Metifs vouloicnt avoir dcs chemises fines; mais il ne vouloit pas leur en donner, disant que ce n*6toit pas n^cessaire pou ' le present, et, qu^ar- riv^ au poste, il leur donncroit de bonnes che- mises de coton-— .Les Motifs ont repondu que s^ils ne pouvoient pas avoir des chemises fines, quails n'en vouloient pas d^autres lis disoient k De Reinhard que sMl ne vou leur donner des chemises fines, quMls n*en vuudroient point du tout : et De Reinhard les a cach^es toutes dans leg bois. De Reinhard n*a rien dit de plus — il y avoit du Sucre blanc et du th£. Monsieur Archr ne vouloit le th6, mais le sucre blanc a ^t6 mis danssa tente.('*) (**)\ MW De Reinhard*8 sword. He wiped his sword wbich was bloody. He was then on shore, and at the tiin« when he wiped his sword, be said tbe words ** It is a service * ** which he had rendered." We were then all together at the fire. A division was made of Keveny*s things, and De Rein* hard divided them. De Reinhard opened Keveny's trunks. Keveny had three or four trunks, and De Reinhard opened them. I recogniied the trunks to be the same which I had be- fore seen in the possession of Keveny. De Reinhard opened the trunks There were three or four which De Reinhard had opened. He had opened them with keys. 1 had before seen keys in Keveny's hand, and I saw keys in De Rcinhard's hand, but I can not say that they were the same ke^s ; but De Reinhard opened them (that is to say the trunks,) with the keys which he had in his hand, and I saw it. De Reinhard took the clothes and things out of the trunks: he divided them. The be^t of the things be <»ose himself, and hid them in the woods. The bad ones he put on one side. The Mettfi wanted to have some fine shirts ; but hs would not givs them any, saying that it was not tbea u illi IMAGE EVALUATION TEST TARGET (MT-3) /, {./ ^ &c s-Aie I <^l^ ^^S" ^ 1.0 1.1 UiM2A 125 US ^ ■■ glii |22 » l££ 12.0 1^ |j4|j^ Hiotographic Sciences Corporalion m^^'^ \ 4^ "-^ ' V 23 !MfST MAM STREET WEBSTE«,N.Y. USSO (71«) •72-4503 64 JIfr. Slikiri,*^y¥e certainly can have ttdthing: to db with that in ibis case-^We are not defending Mr* Archy. S0iieitorGtttir(d,^^Avei^^ims tu les hahits de Keveny dam le eatiot? .^e.<>-^Mainville ni^a mdntre Ph^bit de Keveny, J1 etoit miatqtt^ du troii d'tme balle et d^un sa* The Hmt i»iis hen ofir^ to be ptoduced, •^>iSterY.<^I ^1 myself calkd upon by pro*" i^SMOtiaV dut^ to object to any evidence being ad- IQilted df Occurrences, Subsequent to the suppos* ed death of die knan, till his death is proved. At ^r^istent H appeaiis to me that the Crown Lawyers nave coti^btetdly oveHodted the most naportant ^int fo!r tiiem to prove, namely, that the man is ^tually dead*«<*-noi ^ tittle of evidence have they 8 reduced as to the death.. I beg to observe that 10 objection I make, is rather we objection of a J^ntisel, made for the sia^e of preserving regular* iit ill theproceedings, ^an with any view to ben- efit the prisoner, or with any reference indeed to him at all. I speak for UE^self, and I believe my letirbed frieklds.Who aihe with me, coincide in the i^^bipuiion diM; not o& account of the prisoner, &r ¥fe w»h the' whole truth tp be brought out, but iblr the sislee nif regularity, no evidence ought to hb jprodtieed of events posterior to the deaths tfll ii^jr* tfid ftat When He aMved at Hie post, W iKrouId pm tbem Kdod eott' so modi as the body being seen, my l^aritved friends propose to go into evidence as to eti^- cimstances whieh^ as they aNege, took place subse- ^nent to it Surdy s»eh a <»use can not be reg- alary and I therefbre object to it, but on behalf of myself and my learned fi^iends, who concur with nm a» ta its* validity, 1 assure the learned Grown officets^ tfia^t it? is puriBly a professional objection* andi is not miKde withtlie most remote idea of ex* ehiding any pa,rt of the evidence which they maj intend to prodneer; on the contrary, our view is nrtber to urge dpon them the necessity of pt^daoi^' i ' -il 4, (J Hi Sn .1 -i ]'n 68 what we fear they have overlooked, namely, eTi^ deiice of the death of the man. ^Uomei/'GeneraL-^We consider that we are •hewing, ma way that it is perfectly competent for us to a£>pt, and by yery strong evidence, that the man is actually dead ; the jury, however, will de- cide upon that as they think proper, but that thia teconaary evidence may be adduced, is apparent from various authorities which might be cited, but which perhaps the Court will consider it un- necessary that I produce, but I may be permitted to refer to Ar. Cnitty on this subject, as the opin- ion he gives, that, although desirable, it is not in- dispensable that the body should be seen, is sup- ported by referenoe to the authorities upon which it is founded. Jiitwney'Gewrcd here read Chitty^ vol poge^ • .and argued, that if ever there was a case in which this secondary evidence were admssibky csrtain^ ly this was such a case, ^ Chi^ Justice SewelL — ^The general rule has beei^ never to convict for murder or manslaughter, un--^ less the fact can be proved to be done, or the bo- dy at least were found; this doctrine has been supported by Hale and others, but it is sometimes impossible that this can be done, and we must then resort to secondary evidence of that which we can not prove by the more positive testimony. Supposing, for instance, the case of a man being drowned, and carried away by the stream, so as never to be seen, or that of a man being murder-* ed and afterwards burned, to ashes, so as to ren- der it totally impracticablef to say that it was the remains of a man. I mierely suppose or put these cases to shewr and to prove, that the secondary evidence may be resorted to when the • prhnary can not be produced; indeed it must be so, ear in many cases conviction nevejr could take place. 69 Lee. Well then, let as now eiamme the point in quei- tion, and apply this rule to it. Your objection, or the objection of Mr. Stuart, Itake to be this : A coat is produced which is supposed to have been on his back at the moment the alleged mur- der is charged to have been committed, and the Crown officers, I imagine, purpose exhibiting hj these garments, some evidence of the manner in which the deceased met his death ; to this it it objected, that till the death is proved it is incom- petent to the Crown officers to go into evidence of this nature. — From the circumstance of the impossibilitj of exhibiting the primary or more positive testimony, the Crown officers contend they have a right to produce secondary evidence, and they most certamly have. But, I confess I consider the order inverted by the course that is taken. I understood the Attomev-General in . his opening to say that he had a confession of the pri- soner's own. It might probably have been as well if that confession had been proved as perhaps it would have been enough to establish the fact, that Mr. Stuart contends you ought to establish, and then this evidence would have been merely con- firmatory.— I beg to be understood as givmg no opinion on the subject, very far from it.-— I dare say the Crown officers have substantial reasons for the course they have thought proper to adopt, no question but they have, and I have not the slight- est wish to interfere with it, for the knowledge of all the facts being in their possession, they nave undoubtedly selected, accordmg to their judgment, the course best calculated to attain the ends of public justice, and I certainly shall not do more than hint that, if consistent with their plan of con- ductinjg the prosecution,, to prove the confession, it might perhaps save time, out I beg I may not be supposed to have the most distant desire, gen- •■'■I ft 70 ilemen, to take out of your hahtls the rigbt belong- ing to your official situation of fmblic j^rosecutoff or in the smallest degree to intreMh upon it. Re- lative to the objection itself, I do not, Mr. Stuart, think it good at present. The coat is produeecf as being that which the deceased wore at the tiiae the witness last saw him, rather than to prove any thing that took place after the alleged mur- der, andas such is certainly admissible. What the subsequent evidence may be, it is not for us to anticipatie, but at present I consiedr it to be t>erfectly competent evidence. ^ . Mr. Stuart. — I s^m sorry to occupy the time of the Cpurt, but I believe the Crown officers intend to offisr by this witness, testimony relative to this coat, which occurred afler the ^Mqt at which the silleged murder is supposed to h'ave been. eomfflit<« ted, and it was under this impression that, under a sens6 of professional duty, f objected to that evidence beuig introduced, till the death was pro- ved. .' '^' \ The course sagges'ted by your honour, iap- pears to me to be not only the most advanta- geous, but really the only regular one. but it is to us, except for the sake of regularity, complete-* ly indifferent, what course is adopted. Wei there* lore do hot press/ (as indeed after your henour^s decision, it would /be highly in^proper to iittempt to press,) the objection I bad the honour of sub- mitting to the Court. Examinoiion continued hy the SoUeiPor GenxraXi Faye, — L'habit qu'oii i^e mohtre iteluelleiiient je cto\s ^tre I'habit de Keveny* G'est l^bit ^ti?il avoit coutume de porter quand il voragedit* Au tems que je Tai vu sur lul, il 6toit piuii'i|cfu£ Je Pai eu en ^change aveo Lft Pointe^ €^ je^ l^i por- it 71 t^ longr terns. L^habit etoit dans le petit cAnoi dans lequel le prisonnier, Main?ille, et le Sau- "^age, sont ai^riyes d terre. MainVttle l*a porte a terl*^ avec ks autres hatdes et bdl!iti. C'etoit Itii qui d d^barqu^ foot ce ^\ 6ibit dedans, et hoh pas monsieur De Reinhard. Monsieur De Rpht* nard Molt cbmmilB, et les cothtnis lie travaillent psis. Mori^ibur Kevdn^jr avoit cotit^tn^ de pbrt|&)r cet halfwit quand il ^toit avec moi. Maihvitk m\ montr6 dans cet habit les trous quMl disbit ^ti% des doups db sabre, et le trou fait par urid balU defusil.r««) Mt. Stuati.-^Vfhat Bilatnville tii^ M^W ^id, certainly cannot be evider^ce against us. Indeed r do noit see what effect thid did 60at is to have Updn ^he ciEise at' aiti ^Ucitof GtneYal-^i t^ill sidt^ ^hj this eVi- detic^ i^ addviced> and it is bn^i'ed simpIV for thb reason, aftd Uid yoitf tt'ill judgie what wi^fg^t' it bp^hic t6^ haVe Upbh thb Ca^e. VLtitt is a ddat which we prove he was in the h^bit of Wearing Wh^b travelling, thait lie had it When tliis Pitiless was with him, and it is fbtittd ill the canoe ih Whibh die pjrispiier arHvi^s Withbut Kevehj, though the la(^t iinle iteVeilj yf^& s^^ri, it Was ih the (iom- panjr of thi^ prisbhfeh Vf€ 4)aip\j prbve the fact, the jjuij will infer from it what they think propier. ,. pervert the pure stream of national justice ; bat when I see in a printed puUicaftfon, on a subject connected with the interests of the private prose- cutor, that very eonfessioife, which, in tho exer<^ise of his official duty as ai magistrate, he kid taken', f can not refrain from spying, that H is to be feared he has overlooked his duty, and has published if, for how else could it have got to the worM, sMd 1 am not to be restrained by any consideration frrtr the elevated rank of llits magistrate, ow the cmii- trary that ought to have operated as a seciinty for the most accurate fulfilment of 4ie duties tm^ posed upon him, particularly as, from* the peeulilir delicacy of his sttuation, one WouM^ have ima^iMd he must have fblt most anxibus that no part of his conduct should be exposed to the shadbw of suspi- cion ; but the motives for such a publication are too glaring to be misunderstood, and I repeal thsit il would have been more consistent with the distin- guished rank of the magistrate, if it htfd never appeared. As to the conversation it can tioi be evidetice;: when this pretended cbnfesslbn is O0s>r- ed, we shall have an oppoi^tunity of mecffing it^ and therefore, tillthen^ I refrain from taking aujf notice of it Examination coniinued b%^ Dto SdititiSi €MkrHk Qu'est ce que De Reinhard a dit au tems que vous avez rencontre les gens de la Hi viere Cygne ? Fa^i. — ^il a dit qu'il Tavoit pris prisottnier d n ii|ae n on le retr<«u?oit, quSl n'auroit pas •6iiL(*^) CMef Justice SewelL — We have got that before. Solicitor General — Qu*est-ce que Mainville a dit? Faye, — Mainville a dit (*') Jlfr.iS^r/.«-Thatwo'nt do indeed. What have we to do with what Mainville or any body elae has said. I really did hope my learned friend would not have attempted this course again. SoHcitoT CrtheraL — it was said in his hearihgy and [ beg leave to contend, that it entitles me to introduce it as evidence against the prisoner. Mr, SiuarL — ^Oh, because it was said in our hearing it is to be evidence, but I beg to say, that ^very thing said in my hearing is not necessari- ly to belong to me. If a man chooses to talk/ high*treason in my hearing, I am not necessarily to be hung for it, but, if tnis doctrine is sound, I fhould be. ' C\ief Justice SewelL-^^o, that does not follow; but, if in your hearing a man says, you helped me to cut another man^s throat, that might cer- tainly b® shewn to have beek^ so said, and they might go further, and prove what you said upon hearing if, and- according to what mut proved to be, would be the effect such language in your hearing would have upon you. Solicitor Genertil. — Qu^est-ce que vous avez en- tendu Mainville dire ? ' Faye. — Je Tai ehtendu dire quil tueroit Keveny. II paria qu'il avoit Pintention de tuer Keveny Le (•<) What did De R^ihbard say at the time you met the StraH River people? B, F. — I^e said that be had taken him prisoner, and if bf^ was found again he would not take care of him. d (•5)5. ©..-What did Mainville say ? -Mliinville said* ;f'^, ,-.,.--.-,.. 76 m^me jour, et le jour auparavant que Kevenjr est mort(") Mr. Stmrl. — ^That assuredly Is not evidence against us. Chief Justice SeweU, — No, certainly, but it maj be for jou, and very strong too, and therefore I take it. Cross examnation conducted hy Mr, Vanfebon. Faye, — ^La premiere fols que j'ai vu Keveny j'e- tois dans la riviere Winnipic. Iletoitauxfersaveo des Bois BruUi dans un canot — J'etois alors dans un canot commande par Mr. Cadotte. Monsieur Cadotte est un commis dans la societe du Nord- Ouest. Monsieur M'Donell etoit en compagni* avec nous dans un autre canot. Monsieur Kl'Do- nell a fait oter les fers de Keveny, et il a dejeune avec Monsieur M'Donell. Je ne sais pas que Alon- •ieur Keveny s^est plaint a Monsieur M'Donell, ni que les Bois Brules ont dit que Monsieur Kevenj avoit tue trois homines. — Monsieur M'Donell est an des Bourgeois de la Societe du Nord-Ouest, et il a donne a monsieur Keveny une bouteille de vin et une bouteille de Rum. Au lieu d'envoyer Ke- veny avec les Bois Brulis, Monsieur M'Donell Pa mis dans le canot avec moi et La Pointe — ^Nous n'avions pas envie d'aller, parceque les Mitifs nous ont dit qu'il 4toit malin ou mauvais ; mais nous ^tions commands dialler, et le sauvage nous etoit donn^ pour nous servir de guide pour le Lac la Pluie. £n voyage, le deuxieme ou troisieme jour, Keveny etoit incommode, parceque le sauvage avoit essaye de le tuer. Le sauvage ne parloit pas (••) S. G.— What did you hear Mainville say ? H, F, — I heard him say that he would kill Ktveny. He spoke ttf his inteDtion to kill Keveny the Kosat day» lod it ^ dmy before the d^atb of KcTeny. uneasj Indian guage, andK( ell wo« " killii stood then I frequei chaige Pointe Li ■■' w Frangols, €i je (le parle pas le langage sauyage* Le sauvage avoit fait des signes de youloir le tuert et Keveny s'^toit f^hk contre nous. Le sauvaffa a dit que monsieur McDonnell seroit content, ril le tuoit. II disoit en Francois ^ en tuant saguenash^ monsieur McDonnell sera content.^* J'ai compris par ^^ saguenash" un ^^ Anglois,*' mais je ne con- naissois pas alors le nom de Keveny. ^ Je sais que le sauvage JosS, pendant que Keveny etoit en charge de La Pointe et de moi, a frequemment vou- lu tuer Keveny : je ne me rappelle pas d'avoir vu La Pointe et le sauvage avec des bSltons k la tente de Keveny, je n^ai pas connoissance que le sauvage La Pointe et un autre, etoient a la tente disant au meme tems qu'ils tueroient Keveny, (*'^), (<'') The first time I saw Keveny, I was in the River Winni- pic. He was in irons with some Bois Bndi$ in a canoe. I was then in a canoe, commanded by Mr. Cadotte. Mr. Cadotte is a clerk of the North-West Company. Mr. M*Donell was in company with us in another -canoe. Mr. M'Donell caused the irons to be taken off from Keveny, and he breakfasted with Mt.' M'Doneli. I do not know ^at Mr. Keveny complained to Mr. M^Donell, nor that the Bois Brtdis had said that Mr. Keveny had killed three men. Mr. M'Donell is one of the gentlemeM of the North-West Company, and he gave Mr. Keveny a bottle of wine, and a bottle of rum. Instead of sending Keveny with the Bois BrttUs^ Mr. M'Donell put him in the canoe with me and La Pointe. We did not like to go, because the Metifs had told us he was mischieveous or wicked, but we were ordered to gq, and the Indian was given us, to serve as a guide for Lake la Pluie. On the way, the second or third day, Keveny was uneasy because the Indian had endeavoured to kill him. The Indian did not speak French, and I do not speak the Indian lan- guage. The Indian had made signs that he wanted to kill him, and Keveny was angry at us. The Indian sa:d that Mr. M'Don- ell would be pleased if he killed him. He said in French, " Id " killing SaguenaAt Mr. M'Donell will be pleased.'' I under- stood by ^*Sagitmash" an *< jEn^Juftmon." But I did not then know Keveny's name. I know that Joseph, the Indian, frequently wanted to kill Keveny, while be was under the chaige of La Pointe and me. I do not recollect having seen L* Pointe «nd the Indian at Keveny's tent with stakef. I have lo 1 l':t i " il f I: i i-h •'J sauvage ^ n ^ Mr. Fafi/e2RMt.^Avez«vou8 jamais racont^ ji ^uelqu'un que La Pointe et un autre s'^toient mia en devoir^ avec des b&tons, d'aider le tuer Keven J ? Foye.— Je ne me rappelle pas de Tavoirdit ; peuN etre bten : je ne m'en souviens plus, j^etois bien d^- monC^ quelquefois. Mr. Vanfelson.-^AyeZ'youa jamais dit k quel- qu'un que La Pointe avoit le cceur assez noir pour tuer Keveny, si vous aviez voulu I'ecouter? (*•) /^c^«.-»Non, — ^Je ne me rappele pas de l*avoir dit Dans le cours de notre route nous avons ren-^ contre monsieur Stuart et monsieur Thomson; monsieur Thomson m*a conseille de revenir, mais nous n'avpnd pas fait le retour, etapres le sauvage nous a laiss^. Avantd'avoir laiss6 le sauvage, il a cu querelle avec La Pointe, qui Pavoit estropie. La Pointe Pavoit blcss6 sur le pouce en ferraillant a^ yec son aviron. Le sauvage s^est sauve dans le bois, et nous Pavons laisss^. II 6toit presque nud, mait il avoit des provisions. II avoit vendu sa couverte auparavant pour un capot. Nous avons gaixle son ftisil, et il nWoit pas un eanot Nous avions laisse un peu de tems auparavant Kevenv dans une autre isle. Au tems que nous Pavons fatsse, monsieur Keveny 6toit couch6, mais il n^a pas dormi. II R^avoit pas d'armes* Nous ^tions campus sur une «k 1 1 knowledge that ttie Indian, with La Pointe and another, were at the tent, saying at the same time that thejr would kill Kevenj. (**)Jlfr. F. F. — Did yowever relate to any one that La Poinle and another had provided themselves with stakes to help the Indian kili^ Keveny. H, Fl^—l do not reooKeet having said so ; pevbam I did ; I do not) rememher it I was sometimes a good deal beside my- seu* Mr. F, F.^'Did you ever say to any one that L» Pbinte^i heart was black «noogb to have killed Keveny, if you had lis^ icaed to him? comp] Masd I at lip M 7« Iste plus loin* pour ftUeodre IVriv^e den eaaoti* quand monsieur Arcby et d'autres nous oat rencoa<> tres ; p'etoit moi qui leur a crie de venir a terr^. Je connois monrs. Cadotte, et il a demande ce qu'c-* toit devevu ]e sauyage, et j'ai r^pondu que La Poiote I'avoit baitu, et qu'il s^etoit sauve dans lei bois. Je ne Tavois toucbe moi-meme, et je no sals pas que moi et La Pointe ajoos dispute quant a qui Tavoit battu, ou que La Pointe ait dit que e'etoit moi qui Favoit battu, et que c'esi pour-^a que monsieur Arcby m'ait irapp6. On demandoit ee qu^on avoit fait du prisonmer^ et j'ai repondu qu^on Pavoit laisse dans une autre isle. La-dessus monsieur Ancbj a dit : ^ il n'etoit pas necessaire d^avoir battu le sauvage, ni d^avoir laisse le prison** nier^^' et il nous a battu avec raviron, il nous a donne demandoit I laisse m'embarquois dans le canot avec monsieur Arcbjr. Nousavons kie poury aller, et apres nous avona rencontre d^autres canots, appartenans aux gen» de la riviere du Gygne, et d^eux nous avons appris que monsieur Keveny etoit en haut des Dalles ; et eosuite nous avons monte, et 1 'avons trouv6 la,— • monsieur Keveny etoit babille alors bien propre- mentf comme un monsieur ; et n^avott pas 1esbarde& qu'on m'a montrees ici aujourd'hui, ni celles quMl portoit sur lui ^uand nous Pavions laisse sur Pislo^ La demiere fois que j-ai vu monsieur Keveny, il 4toit bien arrange, et babille comme un monsieur; Gomme ma bourg;eois bien propre. Monsieur Archy a dit qu^il ne pouvoit pas embarquer Keveny avec bii, pareeque le canot etoit tropobarg6. Son canot e^oit alors charge de quioze personnes, dix horomei^ et cinq bourgeois, faisant ensemble quinze. Lc complement ordinaire pour un semblable canot, ^aot de dix ; c'est-a-dire, huit pour travaiiler, «^ i m 80 deux bourgeois. Monsieur Grant etoit la, et Ke- venj ne paroissoit pas fllche contre lui. II resloit content, je crois^ mais il a parI6 en Anglois, et jc n^entends pas FAnglois, mais il ne paroissoit pas etre fllche. Quand nous sommes partis, j'ai laisse Ke- venj avec De Reinhard, Mainville, et Jos^ fils de Perdrix Blanche. lis etoient apres gommer le ca- not, quand nous les avons laisses,'mais je ne puis pas dire que Keveny a eihbarqu^ avec eux. Je suis bien siird'avoir entendu deux coups de fusil pe soir- la: deux hommes, nommes Martin et Lorrain, Etoient alors dans le canot avec moi. Nous ^tions a terre et encampes quand j'ai entendu les deux coups. II y avoit du monde dans cet endroit-Ia. L^un a ete tire sur une outarde, et Tautre, je Pai entendu auparavant quo nous eussions encampe, et le monde pouvoit I'entendre aussi que moi. En cet endroit-Ia on a coutume d^entendre des coups de fusil, et ou il j a des sauvages et du monde, Ke- veny une fois a essaye de renverser le canot, quand nous avons revire pour aller au Bas de la Riviere, et s^il avoit reussi nous aurions 6te noyes. J'ai en- tendu que Mainville a deserte depuis, et j'ai vu Fils de Perdrix Blanche a Montreal ce printems ; je Tai vu de loin, et je ne lui ai pas parle. La PointeTa vu aussi, je crois. Les harqes ont ete lav6es en partie par Joseph et Mainville, mais ce n'etoient pas les hardes, qu'il a portees quand je Pai laisse, parcequMl etoit alors nabille comme un monsieur. II y avoit du sang apres, et j'ai vu laver un habit, une veste, une chemise de cotton barre de Keveny, mais je n'ai vu aucune partie des hardet dans le canot qu'il portoit quand nous I'avions lais- se sur la petite isle, excepte son chapeau. Ces habits-lsL etoient un habit et une veste bL.ue de drap, mais ceux dans le canot 6toient les vieilles hardes dans lesquelles il voyageoit. Le dernier coup de fusil que j'ai entendu ^toit tir6 sur une outarde, CJ no su PI mc et voi 9US soni taiti quii Mat etic ^eva l^tio te en la iM ^ tf ItirkJ on rendj roiite i canoed, \\ I ii eonooie M«kivHie m^a dtt et il y aroit tine outarde ^'ils ont tu^e et j«lt6e dans \e canotyje ie sais bieii} parceque ie iVi pluni6 moiHOieme. Le lendemain« nous partimes pour le Lac la Pluie. J'ai tu en- suite De Reinnard prisonnier aa fort du Lac la Pluie, ou 6toient des gens du Milord Selkirk, qui me cherchoienit ainsi que La Pointe. Des Meurons et des •Canadiens nous ont cherche, maisih n'a- voietit pas de fusils, il j en avoit peut-^tre 'Cinq ou §iK, ct j^ai et^ fait prisonnier, moi et Ld!' Pointe pussi $ apres que j*ai ]6te oris, )e Capitaine d'Or* sonnenB m'a enroj^ ati Fort William. Le Capi-» taikie 4H3rs(^t)en8 paroissoit maitre, et c'itoit lui qui nous a ehvoy^s au Fort William. Le Capitainci jilatthe J, avec un autre, r^cevoit nos declarations* et le lendemain matin nous les avons assermentees Levant Milord "Selkirk; apnes avoir fait m^ decla- ration, j^ai ete parfiut^nent libre. Quand j||^ mdn« te en haut, le Fort William.. 6(oit en possession de «: la Stypiete dii Nord-Ouest, mats quano j'j fns apres ydyoir etfe evoye par le dapitaine d'Or^onnens, je rai tifpuve en possession 4^6 gens du Mllordl Setr kiric. Je n'ai pas onti^ au service de Milord, mais qm tti'a fait travailler sept ou hiiit jours pour me rendre en bivernement. (*■) •^u « t'i'iV'- («•) No If IHo itot tecofkti^f^^ so. In tbe course of oat route We liiet ^r. Stoait' and Mr. Tfabmsbn. Mr. Thomson ad * vised Wt t» retttm, biA v^ did Hot, and afterwards ^e Indian, lefl OS. Before Wving left the Indiati he had a quamd with La Ppiote, w|i6 hifd jKiainied hUn. La Poitite tvoumkd his thumb in wieldin| a jmddk. ^The Indian ran c« way into the woods, afid We left ^hn. He was atmost naked, but he had proTisions, He Itttd 'scrtd iiis' f>Uinket before for a eapot. We lEept bis gon» Mtd he had'. ifox^iiJbei We bad leftKeveny a, little while be- fore in JaboA^r island. 'A't the tfine we left him Mr. Keteny bad Idd down, hot he Wks tidt asleep.- He bad no arms. We Were encaibfyed upon kn island Ifanbei^onv iwaitiiig tbe arrival of canoefi, when^Mh Aitby ittiA e^rs m^ with us. It was I who alled-to ibetti tb iM, J%ncrw Mr.'Gadotte wel'l,- and be if^ked me What had becoine of tbe Indian^ and I answered that ! 6 ;. 41 82 I • v. Ill :M J ., m \ k Solicitor General, — I must contend that this ex- amination capi not be admitted*— I do not indeed see to what it is to tend, or Jiow it can operate as a defence. Lft Pointe had beat him, and that he had run away into the woods. I bad not touched him myself, and I do not know that La Pointe and I quarrelled as to who had beat him, or that La Pointe said it was I who had beat him, and that it was on that account that Mr. Archy had struck me. The question was ask- cd,wbat had been done with the prisoner, and I answered that be had been left iri'anbther island. Thereupon Mr. Archy said^ ** there was no occasion to beat the Indian, or to have abandon- ed) the prisoner ;" and he beat ps with the pa^e. He struck us with a pole. Mr. M'Lellan enquired if I could point oiit the island where we had left Keveny, and I answered I coul^, and afterwards I embarked in the canoe With Mr. Archy. We then went :to^o there, and afterwapds we m?t other. canpes, belong- ing to the people of Swan River, and frpm them we learnt that Mr. Iteveny was above thi^ Dalles, and then we went up, and found him there:: Mr. Iteveay was then dressed very neatly, likea gentleman, and he had not the clothes on which- have been shewn to me h^re, nor those which he wore when yrpleft h|m on the island. The last time I saw Mr. Keveny he waa in Vi^ry good trim, and dressed likea gentleman, like i vhiy vrell dressed gentleman. Mn Archy s^aid Keveny ■ could iM>t embaxkwith hiim, because the canoe was too much loaded. His canoe was then loaded witl^ fifteen. , : Ten mefl j^nd five gen- tlemen, making fifteen in all. The usual complement for sucb a canoe is ten, that is to say^ eight working mbn anci two gen- tlemen. Mr., Grant was there, and Keveny did not appear to be angry with him. He w^a satisfied, I believe, : but he spoke in English, and 1 do not understand English. But he did not seem to be vexed. When we went awav, I left .Keveny with Dfe Reinhard, Mainville, and Joseph, Fits de Perdriz Blanche. The canoe was about being gummed when we left tl^m, but I can not tell whether Keveny enibarked with, them, j am quite sure: that i heard two guns go off, that eveniing. Two men, by name Martin and Lorrain,; were at the time in the <^noe with me. We were on sbor^,; and encafnped, when I bfi.'— SMIplatt^a la Cour, mooflieur le Sblliciteur General ne doit pais me dire quelle espBce de defense j^ai a ofirir pour cet homme in- fortune, Les officiers de la couronne* ont lears devoirs ^'remplir, et les avocats du prisonnier en ont de meme : j'espere que mes savans con- freres nous permettront de. (conduire noUs-memes la d^fense^"') vi r.. he bcid sii^ceedisa we should have been frowned. Ibave beird thait Mamville has ^i nee absconded, and I saw Fils de ^erdriz Blanche at O^ontr^l thi^ spring. I saw biin at a di^tande, and I did notj^peak to him.* The clothes were partly washed* by Jo- seph) aipd: Mainville, but they wiare not the clothes which he had on when I left him, for he was then dressed Ijke a gentle* man. There was blood upon them, and I saw washed a coat, a waistcoat, and a striped cottoii shirt of Keveny^s, but I saw none of the things in the canoe, which he had on when we left bim in the little • island, exiiepting bis hat. Thoseclothes were, a blue cloth coat and waistcoat ; but those in the canoe, were Ae old clothes in which he travtelled.* The last gun which I heard go^fi(» was fired at ^ bustard, as .Mainville told me, and there was a bustard which they haa killed and thrown into the canoe. I ftm sure of it, because t ^plucked it'* myself. The titot day we tookoer departure for L^ke la Pluie. I afterwards saw. De. Reinhard a prisoner at the fort of Lake la Pluie,. It was the people of Lord Selkirk, who w^re in search of me and La Pointe.Dotb De Meurons and Canadians came after us, but they had no'tnuskets. There were perhaps fivie or siz of them', and I Was taken prisoner, I and La rointe aisb. After I was taken* captain P'Orsonnens sent me to Fort William. Captain D'Or- lionnens appeared to be master, and it Iras be who sent us to Fort WHliam. Captain Matthey arid another rebeived bur de^ positions^.^and the next morning we s?ror6 to them before Lord {Selkirk. , ^tei; I had Rfiade my 4e||M)sition, I was periectly at liberty.;^ When I went lij^. Fort William was in possesion o^ the North- West Company, but when I £ame there, after being sent thither by captain U*Orsonnens, I found it in the posses- sion of Lord Selkirk*s people. I did not enter into my Lord's service, biit I was made to work seven or eight days in order to CO a wintering- •ii/ (7«) If it please the Court, I am not to be told by the Solici-^ tor General, what defence to offer for this unfortunate maiif The Crown officers have their duties, and so have tibe counsel for the prisoner, and I hope that my learned brothers will pei^ ■it us to conduct the defence ourselves. hi Mi MJ! 84 jSWUtor Gfiil^---C6rtailil)r we will; but the geniSemeD should recollect^ that thej would not pemul us Exactly to pursue oii^ own itiode of cc^d* aiiet2n|r the prosecutioih THej made frequeot ohjeotiona, and surelj we have the same righ^ if we seetocoasipn* Chief Jwtiee8ewdl.^ncroaB eiamination a greater latitude is always allowed, and perhap^its lair limits have not at present been passed. Mr. 5lttar/.— I beg permission to remark^ lliat our objections we;re not to the mode of eiamina- ti6nt nor the manner of extracting evidence, but ttt the itaadmissibility of certain evidence from ita W^^iiy^ which is essentially different t6 the ob- jection q£ iaaj learpaied friend tne Solicitor General. '.-■.' i. 'I • ,1 ■ ., ■ . ^ \ '€ro$$ eiuminjaii^ eoif^^ hfMr* Vm^dton. )In 1816, I was at tiikeYai Pluie, and in the servK^ of the North- West Company. I went doitn the river ih a canoe with Mr, Cadotte. There were two oanoes in company, and Mr. M'Ponell was ip the other. It was Ihe River Winnipic that I went4own. In goin^ down we met two small canoes, with five Bois BruUs in tlhem and Mr. Keveny. Mr. Keveny was handcu^ed. Mr. M*Donen g&ve Keveny in charge to us, to conduct biro to Lake la Plyie. By us, 1 mean to say, my- self, Hubert Faye, and Joseph, the Indian, the son of Perdrix Blanche. Mr. M*DoneIl ^ave Keveny to ,us to convey Him as pHsoner to Lake la Pluie. We went away widi him, and we got to the Lake of the Woods, where we met other canoes, un- der the charge of Mi". Thomson and Mr. Stuart. Mr. Thomson advised us to turn back, as there were no canoes going either to the Grand Portage, or to Montreal. We did not return, but we continued our route, for Keveny would not turn back. Af- terwards,, we met the brigade conducted by Jo^ph Paul. Kev- eny would not consent wat we a^uld turn back* requiring to go t9 Montreal. The first day we followed Paul's brigade, but the next day the brieade l^fi us behind. We had put on ^ore to wait for the brigade, wad when it came up, we em- balmed and kept company together for the firpt day. The bri- gade had sails, and we had none, and the following day the brigade outstripped us, left us, and we lost sight of Uiem. In jhe evening we landed on an island and encamped for Hie night. 87 » Mr. Volume d$ Si. J^tfo^Will the Court please to take that ^ Kevenj £toit trop malade/* £ja t tfit/0^— Faje a et6 pour reveille r Keveny. Le Sauvage a embarqu6 en canot,' et moi aussi, mais Faye n*^toit pas la dans ce moment, il etoit parti pour r^veiller Keveny. Le Sauvage m^a fait comprendre qu^il ne vouloit plus embarquer Keveby. Faye arriva d'abord k la riviere sens amener Keveny ; il avoit a la main sa petite chau- di^re. II crioit au Sauvage de revehir a terre, et nous avons mis k terre, et Faye s^est embarqu4 avec nous. Apres, laissant Keveny sur Pisle, nous avons descendu, mais le Sauvage ne sacbant pas le chemin, nous avons remontS, et le Sau- vage nous a ainene en haut des Dalles, a un vil- lage des Sauvages, disant qu'il s^^toit ^carte, et qu^il ne connoissoit pas le cbemin. Nous etions bien flSlch^s et m^contens. Nous y avons rest^ deux jours. Nous n'avions d'abord qu'un peu de vivres ; mais apres, on a achet^ des vivres. Le Sauvage etoit enrag6, et dans sa colere il a cass6 le canot Apres cela, il a et6 oblige d^acheter, avec une couverte de Keveny et sa cnaudiere, m\ autre canot, et il nous a fait comprendre d'embar- quer, et nous avons continue . notre route, ay ant revir^ a la riviere Winnipic, ayant eu une carte des Sauvages, (birch bark). Le long du chemin, It blew too hard) and the ladian would not proceed, being a- ware of the danger. That evening the Indian cut (wo stakes, and wanted us to take them, making signs at the same time with his gun that he wished to kill Mr. Keveny, saying in French that " Bfr. M'Donell say it is good,*' shewing with his gun as if he would kill Keveny. The next morning, perceiving that the Indian was very much vexed and angry with us, because we had not approved of it, and that he wanted to leave us, we were desirous of going away. We left Keveny on an island be- low the Dalles ; he was too ilU 88 •II V ¥ • ., I 1 ! ' ■-'!^ nous ftTons eu une querelle, «( il s^eit lauve dans les bois. II ne vouloit pas oous laisstr manger, ni faire chaudiere. Nous ^ lions alors i terre, a I'endroit appell6 Portage des Esclaves ; nous nous sommes battus ensemble, et le Sauvage nous a quitt6 et sVst sauve dans les bois^ el nous avons {)artis de la sans lui. Nous ne connoissions pas e chemin; nous avons remont^ la rivieire pour trou- ver Tendroit o\k nous avions laiase Kevehj ; mais, craignant de nous ecarter, nous avons mis a terre, et debarqu6 sur une isle, pour attendre Tarriv^e des canots. Nous avons rest^ cinq jours a eette isle, et le cinquieme jour nous avons vu un oanot montant d*en Bas de la Riviere, et dedans ce ca- not, il y avoit De Keinbard, Monsr. Archj, Grants Cadotte, et quelques Bois Br(kl6s. Mainville etoit ]f^, et Desmarais ^toit parmi les Bois Brikl^s, le Sauvage Jos^ 6toit la, et d^autres, mais je ne Gonnois pas les noms de tous. II j avoit la un nomme Le Vasseur, et un autre le petit Joseph Lorrain. lis nous ont demand^ *^ ce qu^on fesoit la,'' et *' ce ou'on avoit fait du Sauvaga," (ils etoient alors Jans leur canot.) Cadotte Pa deman- de, et *^ pour quoi nous avions battu le Sauvage/' Je lui ai repondu qu'on avoit eu querelle ensem- ble, et que le Sauvage avoit voulu tirer sur I'hom- me, Keveny, qu'ils nous avoit donn6 en charge. Cadotte a repondu, on vous a dit de ne rien faire au Sauvage, qu'il 6toit votre guide. J'ai dit a lui '^ monsieur Cadotte : vous ne nous avez pas dit de le quitter, ni de tuer Kevenj." Cadotte a repon- du <' cela ne vous regardoit pas, vous etes des *^vaurieiis» des sacres salopes, et vous m^ritez ^' chacun des coups de b&ton ; vous n'aviez rien i, >« faire avec le Sauvage." C'etoit monsieur Cadotte qui a dit cela, et la-dessus monsieur Arcby fli d6- parque a terre, bien enrag^, et il a preooieremepit 60 battu Hubert Faya, JVi ? oqIu me wmxrtu mais il m*a atUrapp^ et m'a battu.(^*) C*) Faje went to wtke Kcveny. The Imliaii embtrked hi Ihe canoe, aod I did toa Faye «irai not there 9t that mpment ; be bad gone to wake Keveny. The Indian gavt me to under- stand that he would not take Keveny on board again. Pave soon CRine to the river without bringing Kerenv with him ; M lied his littl« kettle in his hand. He called to the Indian to re- turn to the shore, and we went back, and Fa/e embarked with US. After leaving Keveny on the island, we proceeded down, but the Indian, not knowing the way, we ascended again, and the Indian brought ua, above the Dalles, to an Indian viltege, saying that he bad lost his way and did not know the route. We were very angry apd dissatisfied. .We had but a very wall quantity of provisions : and afterwards provisions were purchas- ed. The Indian was angrr, and in his rage be brcke the ca- noe. AAer that he was forced to buy another canoe with t blanket of Keveny's and his kettle, and he gave us to under- itand that we were to embark, and we continued our route, hav- ing turned back for the River Wiiinipic, having ^t a birch bark map from the Indians. On the way, we had a qtlarrel, and he ran away into the woods. 'He would not let us take our meals nor boil our kettle. We were then on shore, at the place called Portage des Esclaves, (Slave Portage). We fought to- gether, and the Indian left us, and ran away into the woods, and we left that place without him. We did not know the way ; wq went up the river to find the place where we had left Keveny, but, fearing to lose ourselves, we maae for the shore, and landed on an island, to wait the arrival of canoeft. We re- mained five days in that island, and on the fifth day we saw a canoe coming up from Bas de la Riviere ; and in that canoe were De Reinhard, Mr. Archy, Grant, Cadotte, and some Boif Brtdis. Maipville was there, and Desraarais was- amongst the Bois BmUt. The Indian, Joseph, was there, and otiiers, but I do not know ihe names of all. There was one named Le Vas- seur, and another little Joseph Lorrain. They asked us, *( w^at we were doing there ?'* and *' t^hat we had done with ** the Indian," (they were then in their canoe.) It was Cadotte who asked this, and *< why we had beaten the Indian,'* I answered him that we had had a quarrel, and that the Indian wanted to shoot the man, Keveny, whom they had given in charge to us. Cadotte replied, you were told to do nothing to the Indian, and that he was our guide. 1 said to him, <* Mr. Ca- ^^dotteyou did not tell us- to leave him, nor to kill Keveny." Cadotte then answered ** tiiat was not your concern, yon are ** rascals, and blasted blackguards, and you both deserve a M •! i.ii; Mr. VdUiere de St. R6ai.^\ do not percehre that this can be anj evidence against the prisoner, nor do I conceive that it is at all regular to enter up- on an investigation of circumstances, vrhich, altfao* not direct evidence against the prisoner, maj have a tendency to impress the minds of the jury unfavourably. Jittonwy-GenertJ. — I shall immediately connect the prisoner with all these transactions, my very next question associates him with the whole. La Poinie. — De Reinhard 6toit plus proche de monsieur Cadotte que moi. Monsieur Archy a debarque, c'est bien certain; et apres, nous avons embarqu6 pour chercher Keveny. Le ca- not s^etoit arrete a terre au bord de I'eau, et Faye a embarque avec moi. Monsieur Archy nous a demande ^' Ou est-ce que nous avions quit- te Keveny,^ et nous avons repondu, que nous avions essaye de retrouver Pendroit, mais qu'oo ne le savoit pas au siir. II a repondu, nous avons le Sauvace, et il sait bien ou le trouver (KevenyV Grant a dit, '' vous voulez le cacher, essayez a le ^^ defendre a cette heure, vous serez bien re^s, ^'vous mangerez ce qu^il y a dans mon fuol." Nous avons poursuivi notre route, et le lendemain nous nous sommes rendus a I'endroit ou nous avi- ons quitte Keveny. La' memo joumee que nous avons embarque, les Bois Brules, le long de la route, ont parle de tuer Keveny entr'eux, de cette maniere : Le Vasseur a dit '^ c'est moi, et si ^^je le tue j'aurai ses bottes,'' Mainville a dit ^' j'aurai son chapeau,'' Tcomme de fait i! Pa eu). Avant d'arriver a I'isle, j ai eptendu De Reinhai^ ■ /• ** threshiD^; yoa have nothing to do with the Indian." If was Mr. Cadotte who said this, and thereupon Mr. Aicbjr landed, quite in a rage, and he first beat Hubert Faye ; 1 tiicd to get awaj, but h« caught me/ iind beat me too. 1'- 91 la Are '' j'en aurai bien soin ; c^est moi qui le tuera.** Jlttomey-Genend. — ^Ou ^toit De Jleinhard alors ? ha Potn/e.— Dans Ye canot. Mr, Justice Bowen. — Dans quel faix du qanot ? La Pointe.-^U etoit assis au milieu du canot, avec les bourgeois, monsieur Archy, monsieur Grant, et Cadotte; et en anivant a la petite isle, tout le monde a d^barque, mais Keveny n'y etoit plus. J'ai entendu moi-mcme De Reinhard dire, ^* c^est *' moi qui le tuera, let qu'il n^auroit pas bien soin,** et les autres dire. Pun ^ qu'il aura son cbapeau,'? et Pautre ^^ qu'il aura ses bottes.^ En debarquant^ ils etoient tons armes, et De Reinhard avpit un poignard ; ce n'^toit pas un sabre, ni une baVon- ette, pour le siir. C'ltoit un poignard, aussi long que dix-huit pouoes. On a trouve Kevenjen haut aes Dalles avec les Sauvages. Nous avons appris des gens des canotsde la Riviere Cygne, que nous avons rencontres, en bas des Dalles, sous la con- duite du guide Ducharme, qu^on le trouveroit la, et nous nous j sommes rendus. 11 a 6te demande par quelqu^un, mais je ne puis pas dire par qui, ^^ comment f^it-il pour vivre,'' et ils ont repondu, (c'est-^-dire les gens de la Riviere Cygne,) ^^ quel- ^^quefois il vole, et quelquefois ii ach^te,^' et les Metifs de notre canot ont repondu, '^ II ne vole- " ra pas de long«tems.'' C'^toient les Metifs qui le disoient, mais je ne sais pas si De Reinhard etoit assez proche pour Tentendre. Cette con- versation avoit lieu a terre. Vu que je n'avois pas uiie montre, je ne puis pas dire a quelle heure nous avons d^barque, mais nous avons reste pres de deux heures a terre. En arrivant a terre, on ne parloit plus de tuer Keveny. Quani nous Tavons retrouve, monsieur Grant a donne ?a main a Keyeny, et ils ont parl4 ensemble. Chief Justice SeweU. — Monsieur Keveny et It^^ bourgeois ont ils dine ensemble ? •i ■WtK 1! ^ i f M "jil •2 Ln Potfi/f-p»Noii9 lis Bie maDgeoieiii pas.><-(!5) Examinatioh continued btf the Jtiommf-'General La Pointti-^On nous a eiivoj6 chercher le bu- tin de Keyeo^ ; ib Tont einbarqu^ dans ]e graod caoot de moodieur Ard^jft ppp paa tout| mais ime (in <' 1 Pi; :i''ii'* \\' r (: i:'' (^«) L. P,-*-Pt iUioli^rd was oeaMir to Mr. Cadotte than I was. Ht. Arcby did land ; that is quite cectaiQ ; and a/|er- wards we embaiked to go In seamrh of Keven^. The^ canoe was aground at the water^ edge, and Faje embarked with me. Mr. Afchf asked us, ** WhMB it was that we had left Kevenj," and we answered that w« bad been endeavouring to find the place agaiq, but that we were not sure where it was. He replied '* We have got tlie Indiati, and he knioWS where td find him, ** TKeveny).'* Grant said "jrou want to conoeal him, trj to ** forbid him now, you will bie well receired, you shall swal- " low the contents of my gun." We pursued pur route, and the next day we came to the place where we had left Kevftny. I'he same day that we embaiked, the Bois Brul^,' on the way, talked amongst themselves of killing Kevcny in this manner : |je Vasseur said, ** jt is me^ and if I kill him, I will have his ** boots;" Mainville said, "I will have his hat,*V(as in fact he had). Before coming to the inland I heard De Reinhard say ** I will take good care of him ; it is I who will kill htm.*' ^. G.— Where was De keinhaid then ? '-'Is, P.— In the canoe. Mr. J. B.— In what part of the canoe ? f X. P. — He was sitting in the middle of the canoe with the gentlemen, Mr. Archy, Mr. Grant, and Cadotte ; and, on ar- riving at the small island, everv body landed, but Keveny was no more there. . I hesux) De Remhard say myself, <* it is I who ** will kill him, and that he would not have good care,'* and the others said, one, that he would have his hat, and thie other, that he would have his boots. When they landed, they were all arm- ed, and De Reinhard had a dagger ; it was neither a fVDQrd, nor a bayonet, for certain* It was a dagger, as Imip as ^eislip ^n iocbea. Keveny was found above the Dalles with t^elji- dians. We learnt from the people of ti>e Swan Kiver canoes, Whom we had met below the Dailee, under the conduct of Du- cbarme, the guide, that he would iw found there, and we con- sequently repaired thither. Somebody asked, but I can not tell who, ** how does he do to live,*' and they answered, (that is to aay the Swan River people,) ** Some times be steals, and some times he jturchases/' and the JVMjfs ef our canoe iepUed> ** He £. bottne parlio« JKous avoDsi reU^ ^eus heitres 1 terre, et Jtei^ ot touli : les atitres aiissii eiDbarq|u6 aTec moiislour Ar^hji (ezcepti^ Keveny, I>e Reiilt* hard, Mainville, et le Sauva'ge JosA, et nout Bommea partis, iaUsant Jba^ troii Avec Kevtat* Chief Justice SeweiL — ^Pourquoi ayez-vous laiisd Jm Poihie»''^4i» ont reste pour eiuvra ^nt ml petit canot,;qtieLftd8 sauvacesees iBtoaejbt apt«d goiii*> mer* £Ues atoietit fiiki alorft) 4 cevque ji Ciaiti(^*) Jli perdu les ^utl^s 'de vu6. NoU9V^t6bs 6t^ tti- Buite trois fitsutis o^ ehvifbb^ et noiis^avods 'd6]bbi^ qU^, et cainpig pidttr la nait AyaiJit d'atriy^r^ «t pendant que DOiis ^^tioiifr w^V^i Mxk^ mfdok'm^ febdu un coup d^'Aisil;^ t IftMli :avi6Mp^bjlJ)ifeal>^ ^m\h moi^ dii chcfiiiifi;'^ mA A^'^ikm^ V ) >/ 6^ not ]tii6«r whether D^ RebKard 'Was Mr >%f)6tiKh to loeaif it. tniis cdnvenation was otf a^dre^ > Setfliigi lliat I Jistd Mo irttldi, I ,««!, not Jajj ^ what p^p^ck we clia^tn^airl^^ faMt w^ copit^- ueti po shore alipmt tw^ Jipuis. .^^hgn-ire lapdtd, nofl^ lii6t«W^ with ^cTcny. r i .: 0.#.iS.<^Whgrrdidi{^;kM«lheaciHieii. til • £;P.*^Tfaey!«top|Mrd. behind to feUowin^tslnal^ cahoe, Which .1he= Indian vloitten wcr^dbout gattuiiis. : TberHadthea finished it^Aslftr is: t~ r-f^ . ! f^ ■ 9 ' ? . 1:' II li ;, -'1' l! 'I J' ; :|1 |!:iH If) N illi 94 dsoiale canot dit alors, ^ayez-Todifi entenda ibek? «f Vn coup de fusil ? " iet, ^ Thomme e^ .tu6.*' Us Pont entendu ; ils dispient <|tr1l8 Tavoi^t enten- Chief Justice SeufeU, — L'avez^vous entjendu^ ou lesautresi^ ' ■ ^,' • • ' '■ '-^ - '.>li\.\> La Pointe. — Oui; apres que nous sommes di^ barques, mais moi je n^ai pas eni^ndu 1e preniier coup tiir^. Quand nous etions d^barques ^ terre^ l^l/eBitnoUi un coup de iusil. Je* ti'avois ^as on« tendu le premier coup quand le canot etoit sur Vetxuy mai^.lie^ autres Tout entendu, et qijiand j^ai dit auparavaiit que nous aTions entendu un coup de fuB|(, #HrJ!cau,, Jf^,)i^Vi js^ma^s ;T6ulu dir^ que je iTaJ en^qdp paoi-m^e, fnais que les gens dans le paniot djisoi^fitr^ypirept^iidu., Je n?ei|f^ndis qu'un seut .c^p.; MainTiiie€(n,aenten^ d^UiE. . Quaad j^ftinviUe etpi^ pouria^rjiy^r.f^ Wr®9 des outai^dcs 'i|e sonjtia^p^iiiees: a pa^^jer, et RIaiQvi)le a l^hf^un cpiip de:fii|ii,et,ei^ a tue ,^ne. ; ,Q^apd; j'ai entenv du le premier coup, le canot de Mainville n'<6toit pas encore en v,ue*^-j^ai ete alors a terre, peut-eti^ tine heiire ayant que j^aie yiui I^ oanpt ,,,.Maii)yille a tire sur une outarde^ et Pa tuee, etj'ai entendu le coup, et j'ai Yii le canot au terns mi deutreine €oup< n y avbit (^Ut-etre ube'beure d'intervs^^y §lus ou^moins, entre les deux ppiips que j'aiienten* us. " ' "' * (^•) We continued to go befoN(i>and lost sight bf the oth«> CIS. We proceeded aftenrerds for thrte leagues or thersabouts, and we disembariced, and enGimpedi ' for ^e ni^t. Before ar- riving there, and while we were on the >wal^,^ heard the teport of a' gun. We had proceeded perhaps tkbout half way, and one of the Bois Btidit in the canoe, then said, **did you «* hear that ? the report of a gun ?" and, *Mhe man is killed.** tlie|r heard it, and they said that they had heald it» z qiiai ij »5 •t De Remhard qui ^toit alors dedans le caoot a r^pondu;^ il est bien daohS^ il pe reviendra dus.*? Dans le terns que je parlois avec Mainvilk^ Rein- hard a debarque, et tout le mondc etoit d'un tas en bande, et Reinhard parmi. Un des Bois BrUiUs a demande a Mainville si monsieur Kev^nj avoit fait beaucbup de resistance quaod on Ta tue. On ^toit alors autour d'un feu, et Mainville a dit que '^ mon* sieur Keveqj disoit qu'il ^toit malade, et deman- doit d^etre mis k terre." De Reinhard etoit alors pins proche de Mainviile^que moi ; la distance etoit^ plus ou moins, de neuf ou dix pieds. Je ne puis pas dire exactement la distance, ^ut-etre il ^toit aussi proche' que vous Petes de moi, ou de la boite des^ t^moins jusqu^ au banc des juges. De Rein- hard etoit assiir^ment plus proche de Mainville que je ne I'^tois moi. Mainville a r6pondu k la ques- tion diss Bois Brulisi que monsieur Keveny disoit qu'il etoit malade, et demandpit a aller a terre ; et qu'on Tavoit mis a terre, et qu^en s^embarquah^ De Keinhard I'avoit darde dans le dos avec un pqi- gnard bu E(^bre; que Kev^nj 6toit ecras^ et s'est double par le coup, et que De Reinhard vou-* lant lui donnei* un secotid coup de sabre, monsieur Kevenj, en se levant, se saisit du poignard ou saibrer de De Reinl^trd avec sa main, et que De Reinhard lardessus a crie i Mainville de tirer, et qu^alors MamVille a l§U;he son fusil, et a pose la balle au travers de son cou, et que Kevenj a tomb6 par- desstis le canot ; et Mainville ajouta qj^e s^il n^avqit pas 4te vif a tirer, que Keveny auroit eu encore la force d'oter de Reinbard son sabre ou poignard. CMhf Justj^ SeweH — Que disoit De Reinhardf land Mainville a racont^ ceci.'^ , ^ La PdtW— II n'a rien dit.(") .( ij^VC/.S.— Did you hear it, 0^ the others ? ). r.^^Yes : after we bad landed ; but as for me, I did not WV *»('■■ li'i lilliii' :ii| 'Vtl ,*;!: n k\ ilie iJifitMfi^ answer mtt^ be tuiAtt-dotrii; ;i)n ni , JLcl PomU,*^ paiioit ave^ Ici^ au^M, akai^ jo tt4 aais p$B ce qu*n a dit « " . •.• ; ' Mr. VaU&re tk Si.R6d^h^lihfX ioli^fte «a* -Ui,;... V . ■ ■ ' ' -■' '■ ''■'• '■ •• ■•■*-■'' •\''^' lieair the 6rst gun fiied. When we hsid la^i^ed, I 6|ear^ ine'ije- poH'ofa gUQ» I did not bear th^. first Mp.brt/Whl^tiW. WfaenlyiaiiiVille ^ ^iMt dbm- iag 0a ehoris, BoaebustavdsfleW'j^ast^ and MiintUi^'idr^bi* gun and killed ^i^e of tbein. When 1 heard tfae^f ve(|0|f^ i|aimrille*8 canoe was not then in^jght^ J was tbep«^!fl¥)ref raA4|ps t bat) been an hour on 9here before , I saw . A^ ic^oe. Iftinriile shot ata bustard!, md killed 1t,9fad I bdurdf tht; Vefxittt, •tidyi mmx Ihe canoe at the tiae of the settonid vepiiti '' i^ waa perhaps fin hour, noreOrless, betvyeen t^/fviforiBilj^ltf^hicI I he&rd. tt was Mainville who. kijled t^e. bi^^i^. and | ss^nr it. Ju^t as the caft»^ arrived, solne one' shof^ ^sK^ll|*;whai •* tbty hbd done with ICet^ii^ ?'* ^nd^ De ' Ri^nbditf , mt> M tbeii tp tfa^canee,' answend, *f bt is viill tiddcoi lier i \nmh ^,e Iteinhftrd i^«l oertainly nearer to AfliamWUe'^thaQ Kmipy- ttAt Mainville replied to the question of fhf^ ^is I^suIm, tliat Mr. Kevenj^ said be was IH. awl desiiied to ^^ ftfaoiyiatid thit be bad heen piit On MDiiTe^ 'knd tfiatOn itMUiib^io^De Reinhard had stabbed him ij tUi; back with a dagger or sjvoidj that Keveny was cruslusd and doubled himself down Milder the stroke, and dial Die Ri^nhard attefnptfiig to give bib' i f^^nd «m with tbe «irord, Mr. K&Nmy in rising, seizeiTbold >oi D^ Keii Pe then not hi eoougl ted (hi L. know C. L. eoougl u. 91 La Poinie, — Qui ; il parloit baut d^ordinaire, il parloit asaez haut pour moi I'^tendre bien, et je rai bien entendu. C') Exawinaiion continued by tbfi^ttorney'Genercd, La Point^.'^rm vu le sabre de Reinhard peu aprcs, mais je n^ai pas fait attention s'il.^toit en- sanglaiite ou non, et j Vi vu le butin de Keveny, et monsieur De Reinhard a commence de scparer le butju et les hardes. J^ai vu le butin ^ans le canot^ plein d^ sang. Mainviile et le sauvage ont d^bar- que le bi|tin tout de suite, le tneme soir. C^etoit plein de sa^^g, et je les ai vu layer le meme soir par eux. 11 J avoit bcaucoup de sang dans le ca- not au Cbind^ et.assurement plus que le sang d'une outarde oil de c|ix outardes. Dix outa^rdes n^au- roientpasJ^it ce sang-la. Je ne crois pas que Tou- tarde etok daps )e canot; point, du tout. Je I'ai vue touiben ^ns I'Wm? a Ja distance de quinze ou trenteipieds,:e5t je crois qu'pn I'a attrappee a Peau, qui Pa tue<^<*j?aurai ie premier choix sur le butin, et Reinhard^s dagger or, sword with his band,, and that Ibereupon De Reinb^^rd called to/Vfainviire to kill him, and that l^lainville then fired, his, gun, and sent the ball ihrough his neck, and that Keveny feJl,Mppn the canoe, and Mainville added, that if he ha^ not been. quick in firing, Keveny would^ still have had strength enough to wrest the. dagger or sword from Reinhard. C. /. iS*-r-^What-did De Reinhard say when Mainville rela- ted this? L. ,P.-Tile flajd no^l^ing. ('^«)X. p. — He conversed with the others, but I do not know What he said. C. /. S. — Does Mainville generally speak loud ? L, P. — Yes ; he generally spoke loud. He spoke loud enough for hie to hear very well, and I did hear him Very well. I' • M ' i'l I I ' III ' hi i I 98 comme Mainvilie ^toit avec moi 6t au^l aida a le tuer, il aura plus que les autres.'* if y avoit deux petites bolted de papiers — l^une 6toit une cassette ronde couverte en peau, et une petite chose ou une boite pour ^crire.C*) [Witness here explained ihai^ ^^ la botiepour Scrire"^ was similar to a portable writing'desk^ which Mr, Justice Bowen had before him^ J'ai vu de I'argent dedans la boite a ecrire et c^^toit Mainvilie qui avoit Targent Apres que De Reinhard avoit ouvert les cassettes, il commen- ca lui-meme a separer le butin. II mettoit le meil- feur dans une boite pour lui-meme, mais quand les Bois Brules ont vu que De Reinhard vouloit s'em- parer du meilleur du butin, des chemises fines et ainsi du reste, ils n]qikX pas voulu en prendre, ex- cepte Mainvilie qui a eu des hardes. De Rein- hard a dit, *' je vous donnerai des chemises de co- ton quand nous serons rendus a la Riviere Rouge ; ^' et cela les f^choit. Le lendemain, De Reinhard a dit qu^il faut quitter le butin ici, et onle reprendra quand on sera pour retourner a la Riviere Rouge. S n i m C*) L. P. — I saw R(einhard*s Isword afterwards, but I did not obserre whefber it was bloody or not, and I saw Kcveny's things, and Mr. De Reinl^ard began to divide tbem, the baggage and the clothes. I saw the things in the canoe all bloody. Main- vilie and the Indian brought the things on shore immediately, the same evening. They were full of blood, and I saw them washed the same evening by them. There was a great deal of blood in the canoe, at the bottom, and certainly more than the blood of a bustard, or of ten bustards. -Ten bustards would not have given so much blood. I do not believe that the bustard was ever in the canoe. I saw it fall in the water at the distance of fifteen or thirty feet, and I believe it was taken finom the water and thrown on shore, without having been put in the canoe at all. De Reinhard divided Keveny's things, and I saw it. When he began, he said, " as it was I who killed him, I will have the first choice of his things, and ^s Mainvilie was with me, and as- sisted me in killing him, he shall have more than the others." There were two small boxes of papers, one was a round box covered with skin, and a small thing, or writing-box. ¥\\ J*ai vu cacher le butin par une bad<)e de Bois B^ik* 1^8, les memes des canots avec nous autres. Je ne sais pas si De Reinhard 6toit avec eux alors oit Don, mais j'ai connoissance que De Reinhard a donn6 les ordres pour les cacher. J^ai re^u lea ordres '* de ne pas parler." Mr, JusUce Bowm,^ Qui est^e qui vous a don- ne ces ordres ? La Potnte. — C^^toit monsieur De Reinhard ; il m^a dit, ^* de ne pas en 'parler,** et j'ai demand^ de quoi> et De Reinhard a r^pondii, *^ du meurtre de monsieur Keveny/* — II a ait aussi, que <* si on en parloil, ce ne seroit pas lui, mais nous autres^ qui en seroient punis." Chief Justice iSewell,^-^E,ie8 Vous sur, bien sur^ que c'est De Reinhard qui vous a dit ces mots, et non pas Mainvill^, ou quelqu^aiitre personne ? La Pointe,-—JB suis bien sur que c'^tc 't De Rein- hard qui I'avoit dit, et Mainville a dit, que '' si je parlois de ce mfeurtre, je serois pendu^*' et je suis bien sur de cela.(**) ' ^ The coat was here produced, Attomev-General, — ^Ave^-vous vH Cet habjt au» paravantr < (*•) Oaw some knoAej in the vtrriting-box, and it was Main- ▼ille who bad the money. After De Reinhard had opened the boxes he began himself to divide the things. He put the best in a box for himself|^ but when the Bois Brulis saw that De Reinhard wanted to take possesion of the best things, the finc^ shirts, and so on, they would not take any things, excepting Mainville, who had some of the clothes. De Reinhard said <* 1 " will give you cotton-shirts when we get to Red River,'* and that vexed them. The next day De Reinhard said, the things must be left here, and they can be got again on the return to Red River. I saw the things concealed (cach^) by a party of Bois BrulSst those belonging to the same canoes as we^ I do not know whether De Keimiard was with them then or not. But I know that De ReinhaM gave orders to conceal them. I received orders, ** not to talk of this." Mr, J. JS.— Who was it gave you those orders ? i,i':jT7r I •'" P, ,'l 100 *'|[kii jPdfW0.--OciU j^ai vuun habit cdmnio celui- c-^i*, mais pint tfieuf et plus long, un pen phis longt d€*>mMne Cduleur et quality de drap^ stirement;^ tllaib plus neaf et certainement un peu plus long. y^ TaViidcu €b echange de Mainviile pour un ca- pot. Je rai eu parceque je devois hiverner au Lac fa^iPlutie^ ti que je n'avois qu^une chemise. Toutes mes hardes avoient ete laiss^es au Bas de la Riviere^ dans ie cauot de< n)otisteur Cadotte, au terns que mbiliieur K'^tetty me ful jdonne ein charge. i iChiefJuitic&^efeelf.--i--AveZ''yf ouH donn^ Cet ha- bit* 4 aticufte ptiv^onik ? iLb'jP(rt«W>-Oui,rje'rai c6d6 a Hubert Fayte.(") ' > 'S^nmi'^flE/kbn mahu6d hy the Memey-Oetmal, La Ppt}i/«»<7p-Au Lac la Pluie, je n'avoh pas dii bu^in, cru tdes hardei^, point du tout ;. Je i^'avois rjen qu^iine cbeijdiseiyj.'^i^ois presque nudv Quand Dif^ R^inbaTd,; MainyjHe et Jose sopt arrives, il y IvVf V L. P, — It was Mr. De lil^tAiard ; be told me *' not to sp^ak . *l aljoijtjf ," |and I a^ked about what, and, pe Reinhard atp^^er- eit, ** of we inurde " of Mr. KeVeny." And safd likewise that, " if it were talked of, it wouM not be him, but we the cUiers, who would be punished for it." !";'« ani M^ainville said (Bat ^* if I spoke of this murder I shdujd be hung, ana I am quite sure of that. , , , . • ,j (^k^) *fli G;--i-Hayey6uiseentbibwi&t before? ' • ' ' XlP.7-Y«i^ : I have seen a toat liki^ that, ^jtit tiewer, mii longer, a little longer, bf the ^ame coloiir, iand of the same kitid df clolb c^r^ftWily, but nfeweV, litnd «^aiHi^ a tittle longer, i j^efi^d it in '«ichElrige frbm ' IM^itivtne 6of a ^p*it. I todk ' ft bec^iise I Wiis gbiiig to 'winter at Lake la 'Phiie, and I had no- ^ng but a dhrrt. All my "ctobs had been left at Bas de \^ ili>iere In Mi*. dtdbtte's 'dahoe, at fhe tiiiae that MnKevehy «»as gi^n^tb'fflteitf'chiH^ "^':^ ^r..;;.*. H ■ •. /.-.ir-i f :• C. J, S.— Did you give th^t eba^^ lb anj^ ai,>v<%fit 8Ur Keveny, dans 1e tein^ qu^il tuit so s uotrc charg^. Je Tai bien reconnu, e li vu s trouA dedans ; mais je tie I'ai pas pri lans i .es mains pour Pe^Kaniiner.C') Mr. VaUiere de St. Rial,-^l beg. the Court to take that part of the witnesses answer, tliat h^. did not examine the coat. Lm PotWe.-— Les trous etoient dans Ic collet et •le dos, un grand et un autre plus petit. Je puis assurement prendre mon serment qne Thabit quo j-ai vu dans ie canot etoit Phabit de monsieur Keveny. Je n^avois pas pris Thabit dans ma main, mais je Pai vu perce avec une balle.('^) Cross examination conducted by Mr. VaUicre de St. Rial. La PoifUe."rXy &io\i en |)as des Dalles que mpn- sjeur M'Donell s'est rencontre avec Keveny. |l ne paroissoit pas avoir de haine contre lui, mais au contraire, il lui a faiiX oter ses fers. Monsieur M^Donell est de la societe du Nord-Ouest ; im hourgA)isr a ce que j'ai entendu dire. lis ont mange ensej;njble, et il lui a donne deux bouteilles (>') At Lake la Pluie I bad no things, nor any clothes, none at aU. I had nothing but one shirt, I was alniost naked. When De Reinhard, Mainville and Joseph arrived, there was a coat in the canoe that was bloody, and pierced through ; a coat bf this colour. I saw a bloody coat in the canoe, which I bad be- fore seen upon Keveny at the period he was under our charge. I reqoiiect it verv ,w6)l, and I saw there ijvere hQles in it, but I did not take it in my liands to examine it. (*3) The holes were in the neck, and in the back; one large one, and one smaller one. I can certainly take my oath that the coat I saw hi the canoe was Mr. Keveny's £oat. I did not take the coat in my hands, but I saw[ it was pierced by a ball. A 102 ' ^ m ■ de boisson, et de petite l)i8cuits. Monsieur Keve- ny parloit An^lois, et je ne l^ai jamais entendu , parter Francois. Job6, Fils de Perdrix Blanchoi ne parloit pas Fran9oi8 ; il parte un peu de tnots ; il d^bitoit quelaues paroles, mais je ne sais pas s^l les coDiprenoit lui meme. Je ne parte pas Sau- vaffe, et te Sauvage parte, mais tres peu de mots en rran9ois, cependant par tcs ^nos qu^il nous fesoit avec, on le comprenoit. Faje a eu que- retle une fois avec Kevenj. Kevenj voutoit le battre. C'^toit tu Portage des Rats, ou au Por- tage desF Bois, et au terns que nous avons rencon- tre monsieur Tliomson, qui nous a conseilte de revirer. Monsieur Kevenj ne voutoit pas qu'on revir^t, et it a essay^ de renverser le canot. J V vois peur qu^il vouttit te renversei*. Je n^ai pas de connoissance que Faye s^est jamais mis en de- voir d'assister Jos^, avec un b&ton ni autrement, pour tuer Keveny, ni qu^un autre homme s'est jamais mis a couper un b^ton, pour alter avec a la porte de la tente de Keveny avec le Sauvage pour te tuer, si Jose le manquoit. Nous n'avons pas laisse d'armes a Keveny, nous n'en avions pas nous-memes, excepte Jose qui avoit un fusil. It avoit pas de feu. C'^toit une isle oO noug I'avons laiss6, et il n^avoit pas de canot, ni d^autre moyen de sortir de cette isle qu'en nageant, (la terrc n^etoit pas loin,) ou en fesant un petit cajeux, ou d^attendre qu'un canot le prtt en passant. La raison que nous avons quitt6 Keveny dans Tisle, 6toit parceque nous n'avions point de vivres q^u'une chauaiere ou deux, et c'^toit pour alter querir des vivres de la brigade,- et parceque le Sauvage ne connoissoitjpas le chemin, et ne voutoit pas rem- barquer. Keveny n'avoit pas de hache ni aucune cbose ponr couper du bois. Je ne savois pas pans le terns, s'il avoit les moyens de faire du feu (^u non. Lorsque le Sauvage Jos6 nous ?t lais- Li m< et raj cei au suil vu mol et il feu 103 t^t c'e8t*^"dira9 apres que nous avons quiiti: Kevcny, il y avoit long-tems qu^il me maltraitoit; il me donnoit des coups d^aviron. 11 se tenoit a la barre du canot, et mangeoit en mcme terns quo nous nagions, et nous ne pouvions pas manger ; ct le lendemaln, c'etoit au Portage des Esclaves, II ne vouloit pds nous laisser manger, il ne vouloit pas nous donner a dejeuner, ^ous avons d6 barque notre butin, et il a pris son fusil et a vis6 sur moi, mais Faye lo lui a arrache. Le fusil n^avoit pas de pierre. Je suis bien convaincu que le fusil n^avoit pas de pierre. II nous a quitte la, et je ne Tai vu qu^apres que j^ai 6t6 battu par monsieur Archy, quand il avoit une redingote Ecossoise sur lui. Dans ce tems-la, il 6toit blesse a la main. Les r^ponses que j'ai donnees aux gens du canot de monsieur Archy, avoient 6t6 donnees avant que monsieur Archy m^eut battu, et avant que de sa- voir que Jos6 6toit dans le canot. J'ai dit que je me suis sauv6 du Sauvage apres que je me suit battu avec lui. Je ne puis pas me rappeller ex- actement tout ce que a ete dit ; j^avois alors bien peur, et j^^tois bien dementi ; mais je nY>tois pas ibu, quoique j'aie dit tout-a-Fheure que j'^tois moiti^ fou lors que nous 6tions sur Tisle. Je con- nois Joseph Lorrain, un Bois BH^le, il etoit la. Le Vasseur ausui, et Martin, je pense. Mainville, monsieur Cadotte, monsieur Grant, De Reinhard, et M'Lellan, etoient aussi dans le canot. Desm^- rais et le Sauvage Joseph, aussi ; nous etions, a ce que je crois, quinze personnes dans le canot, au terns que nous, avons sorti de Uisle. Je ne mc suis pas defendu avec Faye, au moment que j'ai vu le Sauvage, disant que c^^toit lui et non pas moi qui Pavoit battu ; Faye a dit que c^etoit moi, et c'etoit vrai. Je n^avois pas accuse Faye de Tavoir battu. Monsieur Arcfiy, quand il m^a fos- se, n^a pas dit alors pour quoi il me frappoit; kM m 104 mais le tneme jour, en canot, il m'a dit que c'etoit pour lefaire voir au Sauvage ; et le lui ai dit qu'il n^auroit pas du fesscr si lort. Dans le canot on changoit des fois les places aux bancs. Le jour que j'ai embarque avcc monsieur Archy, quelque fois il y avoit un homme, et quelquefois deux, entre moi et lies oourgeois. Je ne me souviens pas si j^etois a cote du gouvernail, ou voisin du gouyemail. Lorrain nageoit en arriere des bour- geois, et il ii'y avoit de bourgeois a bord que monsieur Arcby, monsieur Grant, Cadotte, et De Reinhard, et its ne nageoient pas. Le Sauvage, Jose ne nageoit pas, cependant il n'est pas bour- geois. Je ne sais pas pour le certain que tout le monde dans Ic canot m'ait entendu, quand j*ai ra- conte que le Sauvage Jose vouloit tuer Keveny. Je ne sais pas si jc pouvois etre entendu de toutes , les personnes, ou non. Je crois que le cauot marchoit alors ; mais s'il avoit arrcte, ils auroient entendu. Le meme soir, je crois, j'ai i-aconte aux bourgeois et aux autres, Paffaire entre le Sau- vage et Keveny, quand il vouloit tuer Keveny. Je n'ai jamais dit, ni je n'ai pas entendu dire par Faye, que lui et un autre s'etoient rendus, avcc le Sauvage Jose, a la porte de la tente de Keveny, avec des batons pour i'acbever, ni pour le tuer, . si le Sauvage le manquoit ; mais j ai dit que le Sauvage avoit coup6 des batons, et qu'il 6toit ve- nu nous les porter, nous montrant avec son fusil, et par ses gestes nous fesant comprendre, que s'il manquoit son coup, nous devrions le feser avec les Datonai(") (>«) It wasbelfw the Dulles that Mr. BTDonell met with Keveny. He did not appear to have any animosity against him, but on the contrary, he caused his irons to be taken <^. Mr. M'Donell belongs to the North-West Company ; he is a partner, as I have understood. They eat together, and be gave him two bottles of liquor, and some small biscuits. Mr. 105 ritb linst off. lis a be Mr. The witness here exhibited the gestures^ 8rc. of the Indian, with his himds. Je ne me rappelle pas d'avoir dit, ni d^avoir en- tendu dire par Faje, que la raison pour la quelle Keveny spoke English, and I never heard him say any thing in French. Joseph, Fils de Perdrix Blanche, did not 5peak French ; he spoke a few words, he could utter a few words, but I do not know whether be even understood them himself. I do not speak the Indian language, and the Indian could speak but a very few French words, yet the signs he made at the same time made him to be understood. Faye once quarrelled with Keveny. Keveny wanted to strike him. It was at tlie Portage des Rats, or at the Portage des Bois, and about the time we had met Mr. Thomson, who advised us to turn back. Mr. Kev- eny did not choose we should turn bapk, and he endeavoured to upset the canoe. I m/as afraid that he would have upset it. I have no knowledge that Faye ever was about assisting Joseph with a stake, or in any other way, to kill Keveny, nor that any other man ever set about cutting a stake, and went with it to the doorof Keveny 'f tent with the Indian, in order to kill him, if Joseph missed him. We left no arms with Keveny, we had none ourselves, excepting Joseph, who had a gun. He had n(» fire. It was upon an island that we left him, and he bad no ca- poe, nor any other means of leaving the island, but by swim- ining, (the mainland was not far off), or by making a small raft, or by waiting for a canoe going by to take him off. The rea- son why we left Keveny on the island, was because we had no more provisions than a kettle, (chaudiere) or two, and also that we might go and get some provisions from the brigade, and be- cause the Indian did not know the way, and would not take him on board. Keveny had no axe nor any thing to cut wood with. I did not know at the time, whether he had materials for strik- ing fire or not. When the Indian, Joseph, went away from us. that is, after we had left Keveny, he had been for a long while in the habit of maltreating me; he struck me with the paddles. He kept possession of the bar of the canoe, and was eating while we vrere paddling and could not eat, and the next, day, being at Portage des Esclaves, he would not let us take our meals, he would not give us any thing for breakfast. We landed our things, and he took his gun and pointed it at me, but Faye snatched it from him. The gun had no fiint, I am quite con- vinced that the gun had no flint. He left us thejre, and I did not see him again, Jtill after I was beaten by Mr. Archy, when he had a .Scotch cloak about him. At that time his hand was tTQunded. The answers which I gave to the people of Mr. Ar- 106 & w^ ir. Keveny n^avoit pas ete tue, ^toit parceque le Sau- vage n''avoit rien fait, et que Tafiaire en restoit la. Faje n'a pas dit, a ma connoissance, et assure- ment pas devant moi, *^ si nous n^avions crie La Pointe, Kevenj auroit ete tue ; La Pointe auroit chy's canoe, were giyen before Mr. Arcby beat me, and before I was aware that Joseph was in the canoe. I said that I had fled from the Indian after I bad fought with him. I can not re- collect exactly all that was said,: 1 was then very much fright- ened, and scarcely knew what I was about, but I was not mad, although I said just now that I was half mad when we were up- on the inland. 1 know Joseph Lorrain, a Bois BruU^ he was there. Le Vasseur, and 1 think also Martin. Mainville, Mr.^Ca- dotte, Mr. Grant, also De Reinhard and M*Lellan were in the ca- noe. Desmarais and the Indian, Joseph, too. We were, I believe, fifteen in number in the canoe, when we left the island. I did not dispute with Faye when I saw the Indian, saying that it was him, and not me, that had beaten him ; Faye said that it was me, and that was true. I did not accuse Faye of having beaten him. Mr. Archy, when he flowed me, did not say why he struck me, but the same day, in the canoe, he told me that it was because the Indian should see it ; and I said to him that he ought not to have flogged so hard. In the canoe the people sometimes changed seats, The day that I embarked with Mr. Archy, there was sometimes one man, and at other times two men, between me and the gentlemen. I do not recollect whether I was next the steersman, or near the jgteersman. Lor- rain paddled behind the gentlemen, and there were no other gentlemen on board than Mr. Archy, Mr. Grant, Cadotte, and De Reinhard, and they did not paddle. The Indian, Joseph, did not paddle ; yet he is certainly not one of the gentlemen. I do not know for certain that all the people in the canoe heard me when I related that the Indian, Joseph, wanted to kill Kev- sny. I do not know whether I could be heard by all the peo- ple or not. I believe that the canoe was under way at the time, but if it bad been lying still they would have heard me.- It was the same evening, I believe, that I recounted to the gentlemen and to the others, the occurrence between the Indian and Keve- ny, when he wanted to kill Keveny. I never said, nor I never beard Faye say, that he and another repaired with the Indian, Joseph, to the entrance of Keveny *s tent with stakes to finish him, or to kill hin^, if the Indian missed him ; but I said that the Indian had cut stakes, and that be brought them to us, shew- ing us with his gun, and by his signs giving us to understand, that if he missed bis aim, ^e w^re to do it with tb« stakes. »''^i- 107 bien frapp6, il avoit le coeur assez Doir pour le faire ;^' et je suis aussi sur que devant moi il n'a pas dit aucunes autres paroles semblables, a co que j'ai entendu. Je ne sais pas si les autres dans le canot entendoient monsieur Grant, quand il m^a dit, " venez, venez, essayez de le defendre, vous serez bien re9us ; je vous ferai manger ce qu'il y a dans mon fusil ;'' il le disoit de la place oii il etoit dans le canot. Chief Justice Bowen, — l^e canot marchoit-il alors. La^Pointe, — Je ne sais pas si le canot etoit alors arrete, ous'il marchoit('') Cross examination continued by Mr. Valliere de St, Rial La Pointe, — Le Vasseur, Mainville, et quelques autre^ Bpis Bruits, parloient tout haut, comma il faut, de tuer Keveny ; et tons dans le canot en faisoient une risee, et its parloient haut comme il f^ut. C'etoit dans le canot avant d'arriver a Fisle oil nous avons trouve Keveny, que De R^inl^ard a parle de tuer Keveny, et il Fa dit de la ma- (*fi) I do not remember having said, nor having heard Faye say, that the reason why Keveny had not been killed, was be- cause the Indian had done nothing, and the matter remained as it was. Faye did not say, to my knowledge, and certainly not before me, *' If we had not besought La Pointe, Keveny would ** have been killed ; La Pointe would have struck the blow, his ^' heart was black enough to do it ;*' and I am also certain, that he never uttered in my presence, any other words to the same ef- fect, as far as I heard. I do not know whether the others who were in the canoe heard Mr. Grant, when he said to me, *'■ come, "come, try to forbid him, you shall be well received, I would " make you swallow what I have got in my gun. He said it in the canoe, in the place where he sat. Mr. J, £.-— Was the canoe then under way ? L. P.— I do not recollpct whether the canoe yrss at the time lying still, or whether it was going on. mam ' .'>. r'liil if !!.!.■' -ii .'■^ ';■!! \' : I ini iC-^i 'M^4 108 niere qu^il avoit coutumc de parler, non pas en secret, raais tout haut, et les mots etoient, " J'en aurai bien solii, c'est moi qui le tuera." Cetoit au tems que les Bois Brules tenoicnt le propos de tuer Kcveny, et de partager ses hardes et son butin, que De Reinhard a dit ceci. Quand on est arrive a Tendroit o^ nous avions laiss^ Keve- ny, et ne le trouvant pas, les gensdu canot^n'a- voient pas Tair chagrin, raais ils avoient la meme mine qu^a Tordinaire. Je ne me souvlens pass'ils ont chante dans celtejournce, mais c'est rare qu'on va une journec sans chanter. La derniere fois que j'ai vu monsieur Kevenj, et c'etoit au terns quand on I'a laisse avec De Reinhard, Mainville et Jose, il etoit habille plus proprenient que je ne Tavois iamais vu auparavant. Les hardes qui etoient dans le canot n'etoient pas les memes qu'il avoit sur lui quand nous Tavons quitt^, parceque Mainville m'a dit qu'il avoit change ses habits avant d'em- barquer,(''') (8«) Le Vasseur, Mainville, and some other Bois Bruits spoke quite loud, properly so» of killing Keveny, and all in the canoe 'made a jest of it, and they spoke loud, properly loud. It was in the canoe, before we came to the island where we found Kev- eny, that De Reinhard spoke of killing Keveny, and h^ said it in the same manner as he generally spoke, not aside or secretly, but aloud, and the words were, " I wili take good care of him, ** it is I who will kill him." It was at the time that the BqIs Brules were expressing themselves about killing Keveny, and dividing his clothes and things, that De >Reinhard said this. When we came to thn place where we had left Keveny, and he Was not to be found, die people of the canoe had no appearance of being chagrined, but they were in the same humour as usual, I do' not recollect whether they sang \h^^ day, but it is seldom that a day passes without singing. The last time I saw Mr. Keveny, and that was at the period when we left bim with Dc Reinhard, Mainville, and Joseph, he was better dressed than I had before seen Iiiin. The clothes which were in the canoe, were not the same a.s those which he had on when we left him, because Mainville told me that he had changed his dress before he embarked. ance isual, Idom Mr. hDc ban 1 anoe, him, icfore 109 J\Ir. k^allierede St. RSal. — The Court, I hope, are not taking down the latter part of th^s answer, it forms no part of an answer to any question I have put to him. Chief Justice Sewell, — I most certainly am, Mr. Valliere and feel myself bound to do so. Mr. Valliere de St. R6al. — I must most certainly then, with great submission to the Court, object to its being taken; it is at the best, but mere hearsay evidence. ». Solicitor General — I must submit to the Court, that there can not be a doubt but that the whole of a witness's answer should be taken, indeed, af- ter the learned gentlemen have, in the course of this trial, themselves successively insisted, that the entirb answer of a witness shall be invariably taken when it makes for them, I did not expect from my learned friend such an objection. The witness is asked a ; ^ li'. ii:^. 'I I J )■! i'l : 'I ' ' 1 ■'' ..I !■' 112 was the last time he was seen, except by those io whose company he was left,) and he answers, that he was well dressed, habited like a monsieur, and better dressed than the witness had ever seen him before ; comparing this with the coat produced, there appears to be a doubt thrown upon the tes- timony, Dy the difference between the coat pro- duced, and that which we might, from the former part of his answer, have expected to have had ex- hibited ; but in explaining what, if left unexplain- ed, might seem to be an nnpeachment of his own evidence, he says, *^ Mainville told me that be- " fore embarking he changed his dress," and I clearly think that a connection at present being in evidence betv!leen Mainville and De Reinhard, that what Mainville said may be adduced in evidence. Mr, Valliere de St, lUal — Not, I hope, to make him answerable for what it is not attempted to be proved was said in his hearing. Mr, Justice Bowen, — In my opinion, it is admis- sible evidence to goto the jury; they can do as they like with it. I do not know whether my learned brother, the Chief Justice, concurs witii me. , !; . ' tHh The CkUf Justice expressing his concurrence^ V Tfie cross examination was contirMed by Mr. Valliere de St, Rial, La Pointc^^Dans ces endroits, et a la place pu nous ayons trouv^ monsieur Keveny, il y a des Sauvages qui vivent de la chasse, et les coups de fusils sont frequens. Quand De Reinhard a separe le butin de Keveny, et dit qoMl auroit le choix, parcequ^il Tavoit tue, tous les autres, ^xcept^ monsieur Archy, etoient presens, a ce ould haVe the choice because he,^4kine(| hifh, all the others #et^ "present^ as far as I be- lieve, excepting Mr. Archy. When I speak of M^ Archjr, K m^an Mn Archibald M'Lellati. In goin^ to Lake la Pluie, jt wa?i oii the right hand, (dr> reckoning hy the banks, the south kihk,) of the Rif er Wmnipi^, Where I »aw Mr. Keveny for the 114 '■yn II I I IV >i ,.^. Examination vonducied oil ini HoUdlor GcneiraL 'Mm jXfliin.-^r^foisA^ Sauvdgc, Lt^de la Pldie^ en .18ii>^; alort, et aT^nt d'am- fefrJi^j'al entendu , parfer par Icis Sfluva^es d'un n^eurtt'te^ommis a la RivFere Winn^ks, tnais dans #b tctHs iSj'j^ ncsaVbispas de qui. J'allbis alors vers Ut-' Riviere Rouge, avant d'dler au Lac la Fluid. J^ai dontitiue ma rbule vers le Lac la PIuia ^r(}^ Aette informaiion^ et on a rehcohtre tin ca- f^of^ 'ddns le canot 6^oient 1^9" nomtnets Pease, La Pbibtiji tfi itdis oiiMjuatre adtr^s, et c'est d'edx c|iic'j'm ai^pris iju'iin meurtre avoit et^ cotntnis. J*{U c6htmti6 ttia route apres, jusqu^au Lac la FJlui^I oi} j'ai arrivS ^u Commencetnent du mois d^Ocfobrc!.'. J^vois re§u des ordi*es du catpitainc D'Orsoiihfens, d^arreter be R^inhard qui ^toit au Lad.lai Ptuio, c'cst-d-dirci de le prior d^atiendre Tarriv^^e du cdpitaihe D^Orsonnens, mais je nV last (iqnc ^% The rjght ^ndJanJsceWwDg the n^^r^ go to . 1*0^*6^1. ai Mont real ; He is my Lord ISellai^*6 >«S(^jt. { ^ie l^as givep me sums of five ^ollar^, at different ttihes; jtje .ba,?;g»vei|i mc, pciiijops thiriy. dollars, peitiiajis forfy^ I can ^t.say. ux^ct)^ ; buj I^y^ .not received ignore toan fitty dollars from liini. I reside at present at L*Assomption. C'3 ;»» me, "dianssi '^'^'e, aiic P««Oft nar « « from yois aucun or^ de IWdter par Jlot^e^ bu ie le (aire prisonoier, mak de tficher d*avoir des infor- Jnations d^oe q^e s^^toit pass^ a la Riviere Rou^. En arrivant au Lac la Pluie^ j*ai couch6 ce soir- la chez 4^ux hommes libres, ,«it de la^ le ledde- main, je me miis rendu au for,t J^ai cntr6 d^ms la chambre de monsieur JSa jer. Monsieur Alex- cindre McDonald a entr6 dans la chambre de^De Reiqhard, et un peu de .^ems fprejs tous les ^ipq^ c^est-^'dire mqi, oayer, Rq^ssio^ M'Donald, et^n autre, sont eqtr^s d^na ja salle d. une autre cjiaip^ bre ensemble. De Reinhard avoit un papiet dapir Jia main, un billet, et, se promenapt dausla cham- bre, disoit qu'il 6toit bjen surprjs que le capitaino •b'Orsonnens vouloit avoir des informations de Iqi de la Riviere Rouge* Monsiei^rX)e:Reii)h|ard»Pf» parloit p^s d^autres afiairqs. j^rois ou qu^tl^ neures ^pres, le capitaine ^^Orsonnens e^t ^rriite, et un moment apres que le capitaine D'Orsonncns firriva au fort, il s^est promen6 dehors avecjple Reinhard. Je les ai'Saivis, et je me suis promen^ avec cux. Je n'ai pas entendu le commencemiirtt de leur conversation ; ils etoient restes j^u^lq^e ferns ensemble avant que j^aie et6 les reioindre. 'Mr» Justtct Bowen. — 'Avez-vous fait vous-meme, ou aveZfVous entendu aucune autre personne, faire 4^s, promesses ou menaces ? houis JVb/in.-^Non, vos fieigneuries. /Solict/^rGtffieraiL-'^Racontez la conversatton;('") (*•) 1».,J^.— I was in tlhe, Indian country, at Lake la t*luie in J^|6. Then, and before; I arrived there, I had heard ,t|ie Indians s|^lc 0f a, murder cpinni'itted at the iliver Wiani'pic, but at that tiipe I- did not knioiw upon whom. I was then Koipg to- wards Red River before getting to Lake la Pluie. Aficr I re- ceived this Information, I continued 09/ route toivards Lake U IPluie, and; a (^aooe was.n^t with, and, in the canoe were, the prsoh named Dease, La P(^ate,,,and three or four olbers, ajod It is from them that I learnt that a nurder had been committed. i^Aenyards I contioued mv roiit^ till ^ got to Lalte la Phii^, 1! I !1 '^1 I 116 * i»! ,i" ' II \r.. '-I Ji'i Ifrfi Chief Justice SeweU, — Stop if vou please, Mr. Solicitor General, we must go farther than that. Wo must know the commencement of this conver- sation. Mr, 5/tiflr/.— 'WHI the Court just allow me to ask the object of producing this conversation. Is it to prove a confession ? Solicitor General. — Yes, it rs. Mr» Stuart* — ^Then, to this course of the Crown lawyers I most certainly object; indeed I can not but express my surprise that it should be attempt- ed ; for what is it but an attempt to call a witness to cor; oborate what is not proved. This preten- ded confession is attempted to be corroborated before the fact of the death, according to our judgment, is proved; but, waiving that, for the present, it is now proposed, to support, by way of a corroborating testimony, a fact to which no fvhere I arrived in the beginning of the month of October. I had received order:» from captain D'Orsonneng to stop De Rein- l^^ffd, who was at Lake la Pluie, that is to say, to desire him to wait captain D^Orsonnnens' arrival ; but I had no orders to detain him by force, or to malce him prisoner, but to endeavour to obtain information of what had occurred at Red River. On jny arrival at Lake la Pluie,. I slept that evening with two free* men, and from there, on the neyt day, I went to the fort. I entered Mr. Sayer's room. Mr. Alexander M'Donald went in- to De Reinhard's room, and a short time at^er all the five, that is to say, myself, Sayer, Roussin, M'Donald, and another, en- tered tosether into the room of another apartment. De Rein- bard had a paper in his hand, a note or letter, .and walking in the room* said that he was much surprised that captain D'Or- sonnens wanted him to give information about Red Kiver. Mr. De Reinhard spoke of nothing else. Captain D'Orsonnens ar- rived three or four hours 'afterwards, and be walked with De Reinhard out of doors. I followed them and walked with them. I did not hear the beginning of their conversation ; they were some time together before I went to join them. Mr. J. B. — Did you yourself, or did you hear any other person, make a,ny promises or thiteats ? ^ • L. A*.*--No, your lbrdsh!ips. S. G.' — Relate the conversatioD. H7 •fidence whatever that can be receired for a mo- ment hat been even offered. What may bo the result of such a course ? why, that when captain D^Orsonnens is called, his evidence may prove, and if not wrongly instructed, it will prove, that every thing connected with this pretended confes- sion is totally inadmissible. If I am not wrongly instructed, (and I have little reason to apprehend that I am,) we shall prove it to result from a fear amounting to absolute terror, produced by a se- ries of unheard of aggressions and violence, such as never was before seen on this continent, and such as, for the sake of humanitjr, it is to bo hop- ed never will again disgrace it. I should bo wasting the time of the Court to attempt to estab- lish the inadmissibility of a confession obtained under such circumstances, circumstances which in their nature are without a parallel, and of a description, that, to avoid their effects, the most innocent man might be induced to confess or even accuse himself vould be to take that course, and that, having him in the box^ iye had, to sa?e timic', better finish our exanunatibn of hini entirely. y(e have no 'object-» tion to call captain D^Oirsonnehs if the Court think proper. . . V,., Chief Jitstice SpweU. — ^You certainly can not bV this witness get admitted the confession, which you are .desirous of proving, becausctheis incapa- ble' of pt*oying ^he indfspehsab!e preliniinarjs namf^ty, ^at it was freely and voruntarily ihidc, arid therefore entitled 'to be received. He cdn, however, answer for himself whether he did any thing, the effect of which would be to destroy it, and then if he answers in the negative you can call captaiip ^'Orsonnens and ^e examination can goon. Avez-vous, monsieur Nolin, fait aucunes pro- messes a De Reinhard, ou aucunes m^ndiccs qtiel- conques, aucune promesse d'avantage b*][ cbiVfes- seroit, ou aucune menace de pmiition, /s'il ue faisoit pais une confession? * .^f* L, JVb/in.i — PJon monsieur, point du tout. ^^ Chief Jiiftice SeweiL-^N'i Ton, ni I'autre ? \ Z^. VV(>/f>i---Npri, monsieur, Je *n'ai pas fait au- cunes promesses, ni aiicuncs menace? au {irison- ■I 1. ' -If 'h i 120 \ i M:m MMn nier pour rinduire de faire uAe • confessiori, ni au^ tpeinent.(") i Captain PROTAIS D'ORSONNENS^'^om. . i • »•:■■» V . . • Exammed by the AUormf-Gmtral : ; > Cc^l* D^Orsormens^-^e suls capitalne a dconi- 5 aye, du regiment de Meuron. £n 181 69 j'^toia ans ]e pays Sauvage, plus baut que Fort Wil- liam, £n Octobre, le second ou troisieme jour j'^tois au Fort du Lao de la Pluie.('*) ; [Captain D^Orsomiens here intimated thai he catdd wish the Attomeif-Generai to commence at an earUcr period^ as there were some circumstances^ which as they were favourabk to the prisoner^ and might be of benefit to hdm^ he was desirous of stating ; they had occurred anterior to the period to which the At" tomey-General had directed his attention^ After some ren^aris by J\Jr- Stuart^ on the singularity of a witness wishing to suggest to the Crown q£c^ a. course of exmunation, and disclaiming any desi t v frofit by the offer ^ the examination was continued.] Capt, U'Orsonnens.-^e connois le prisonnier a la bane, Charles De Reinhard, et le second ou ■r—? I'n A J : I >i-s. (**) Ct /. S. — Did you, Mr. Nolin, make any pkomises io De Reinhard, or any threats whatsoever. Any promise of advan- tage in case' he confessed, or any threat of punishment, if he made no confession ? L. AT.— »No Sir, not any. f C. /, S.— Neither one nor the other ? L. JV.— tNo, Sir, i neither made any promises, nor any threats to the prisoyert Xm induce him to make a confessipn, nor otherwise. (* *>)r I am a half pay captain of the regiment of Meuron. la 1816, I was in the Indian country, bejrond Fort WiHiam. In October, the second or third day, I was at the Fort of Lake la Fluie. ^ pou qu'il pavfl celle feta MS III/' ;^lir 121 troisiiSine jour d'Octobre I8I6« je I'ai rencontr6 en dehors, ou devant, le Fort au Lac la Pluie. Lors que Tai arriv^ au Lac la Croix, un petit Lac entre rort WilKam et le I^c de la Pluie, j^ai rencontr6 plusieurs Sauvages, et j'ai appris d^eux que les Motifs, aussi bien que les gens Ae la soci- ety du Nond-Onest, nous gardoicnt dans la Ri- viere Winnipic pour nous detruire ; et ils m'ont d^peint ufi militaire, blanc comme un de ceux qui nous gardoient, et per la description, je n'avois nul doute que c'^toit De Reinhard. Le lendemain, a ce que je crois, Tai rencontre monsieur Dease, et j'ai demande si ue Reinhard etoit au Lac la Pluie, et il m'a dit qu'oui. Ea consequence, j'ai envoye monsieur Noun et McDonald, quand nous^tions a trente lieues pres du Lac de la Pluie, en avant, pour porter un billet de ma part, et la proclama- tion de Sir John Coape Sherbrooke du 16 Juillet, 1816; le tout adresse par mci a monsieur De Jleinhard. Dans le billet, je le priois de m^at- tendre, d^sirant avoir de lui des informations sur ce qui s'etoit pass^ a la Riviere Winnipic. Le second ou troisieme d^Octobre au matin, j^ai d6 barqu6 i deux oi| trois milles du foi*t, et ava^t d'arrjver au fort, j^ai rencontre deux hommtis libres qui demeurent a un mille du fort. Les deux hommes s'appellent Sans-souci et Bonar. J'ai 6t^ au fort par terre, et monsieur Dease fit ]e tour par eau, je suis arrive le premier, et De {leinbard en me vojant vint au devant de moi pour me rencontrer ; il me donna la main, disant qu^il 6toit ^xtrememept fllche de me voir dans ce pavs-la, que ma vie &toit en danger ainsi que celle des personnes qui m^accompagnoient ; qu'il y avoit des Metifs et plusieurs engages de la com- {>agpie du Nord-Oucst, qui, determines a detruire 'etablissement de Milord Selkirk, attendroient ses gens dans la Rivii^r^ Winnipic; 9t <}i|e }vi it! ■Ai iM :,t ^4 n"'^} 122 meme avoit Airtifie le fort auBas de la Riviere Winnipic, avec cinq ou six pieces de* >)i koew (he prisoner at (he bar, Charles De Reinhard, and on the second br third of October 1816, I met him on the <|ptside of, or in front of, the fort of Lake la PJuie. IVhcn I c|pe tp Lake la Croix, a small la^e betweep J^o^t ^Vim^np and take la Pluie, I met several Indianii, and from them t leditit that the Metifs, together with the pe6ple of Ihe Norft-West Compa- Ojr, watched for us in the River 'Wjnpiplc to destroy us, and Uioy described to mo a qaili^aiyDi^n, whi.te, like on^o/ .those who formed pur giiard, and hy (be.(^e8cjriptiQp 1 had no e(pre cqmjng (o Lake Ja ^Iiye, i sept Mr. ^olin and JM Donald torwaj-d, to carry a letter from me, together with Sir 'Joiin^Cdape Sberbrooke'^s pro- jclamatidn of (he loth of July 1816, the whole di^ct^d by me to Mr. De Reinhard. In the letter I requested him to wait for me, M I desired to receive informtion froii^ \^m ^ to what h^d pas- ted at the River Winnipic. On the second f^ third of October in the morning, I landed two or three miles frbin the fort, and jhefere 1 rtafbed the fert^ I met two freemen, wi^9 residt a mile (he atBa on th Mr. weei went migh the p penec Some out of that *< Huie, they. ^orth some f 123 Mr. Stuari.'^l can not conceire that ibis has a- nj thing to do with the question at; all. The questions of the Crown lawyers I consider as far, very far, beyond the limits oi evidence. The sim^ pie question before us is to ascertain whether thei prisoner at the bar is guiltj^ or innocent of the charge preferred against him in the indictment* instead of which, by the mode pursued by the Crown lawyers, we are getting into a wide story* that it is impossible to see where it may lead-us. What have we to do with Motifs, Bois Bruits, or the North-West Company, or my Lord Selkirk* or any individual, except the prisoner at the bar« This wholesale method of casting implications on other persons, on persons who have no opportu* nity of repelling tnem, who are precluded from answering slanflers of the grossest nature, is cer* from the fofft. The nainies of these two men are Sans-souci, and Bonar. I proceeded to the fprt by laqd» and Mr. Dease made the trip by water, i arrived i,be first, and De Reinhurd on seeing oie, came forward tQ meet me j he ^ook hands with me, sayiag be was extremely SM^rry to see me i/i that country ; that my liie wa^ in dai^ger as well as the lives of those who ac- companied me. That ihe^e were Metifs and several engages of the North-West Company, who, being determined to destroy my Lord Setkiric'p e«tablishment, would wait for his people in the River Winnipic ; and that be himself had fortified the fort at Bas de la Riviere with five or six pieces of cannon, to fire up? on the English when they should come down. At that moment Mr. Deafe arrived, and (jlesired me to walk into the fort, and we entered it, and De Reinhard entered with us. Before we went in, De Reinhard saj.d to m^, ** that at some time when we might be alpne, he would take the opportunity, in pursuance of the proclamation^ to tell me all that he knew of what had luipt pened relative to Red River, and at the River Winnipic.'' Some time after!wards ; half an hour afterwards, I think, I went out of the fort, and De Reinhard followed me. He told me that *< be had been left by Mr. Archibald M'Lellan at Lake la Pluie, for the purpose of apprising him of our arrival, and that they, the Bois Brfil^ or JVkttfs, as well as the people of tbe North-West Cc!:jpany, had detemtined upon waiting for us at some rapids in the River Winnipic, in order to destroy us." f 124 I: I i I'! M n-M a ■# tainly a practice as uniustifiable, as it is novel. It may be) perhaps, of little consequence, in some quarters, nvhctner this .prisoner is acquitted or convicted, provided his trial furnishes an oppor- tunity for giving vent to those feelings of animosi- ty wnich a great commercial rivalry iias probably given rise to. The conduct of this witness I con- sider extraordinary in the extreme. What is the course he is pursuing under the semblance of giving evidence against a single individual upon.^a speci- fic charge, in which the time, the means, and e\e' ry other particular, that is connected with, or cal- culated to produce, the alleged death is most ex- plicitly set forth in the very long, (though per- tiaps not unnecessarily long,) indictment before the Court, I say what is the course this witness is endeavouring to pursue? why to charge in the lump the whole North- West Company with mur- der, or an intention to commit that crime. This may perhaps, be considered a sure and safe way of propagating libels, which, if published in any other way, would subject the slanderers to prose- cution, but it is probably calculated that m the shape of testimony given in a Court of justice, that as these proceedm^s will probably be presented to the world, publicity will, with impunity, be afforded to calumnies which in no other way wpuld gufficient temerity be found to hazard. As well might this witness libel any gentleman in this Court, the spectators, the bar, the jury, or even the Court itself, as those whom he is thus indis- criminately calumniating. How are they to meet these charges? what method shall they take to vindicate themselves, and rescue their honoura- ble characters from these aspersions ? indeed the whole conduct of this witness I will venture to say is completely unprecedented. He sets out by vol- unteenng something which he says will be of ser- 125 vice to the prisoner, ahd nuRnifestlng a degree of tinxiety to oenefit him, directs the Crowo officer in what manner to condqct this examination. As it is the first, so 1 trust it will be the last, instance ever witnessed of a witness directing or dictating how his examination shall be carried on ; it is c|uite sufficient, in discharge of the duty every individual owes to the country, to further the course of pub- lic ju3tice by giving evidence in its public Courts^, to give that testimony which is sought for by those who, from their official situations, are best acquainted with what will be conducive to its at- tainment. My suspicions v '^re immediately excit* ed when the witness stepped forward in this man« ner; notwithstanding the hoon which was proffer- ed, I did not believe in the sincerity of the offer, and I rejected it. We were not thus to be lulled into confidence, and the justice of our resolution, I think, is now sufficiently apparent. But, rela- tive to this unwarrantable attack upon gentle- men who have no opportunity of meeting thes^ gross libels, f?r no siofter term can I use to cor- i^ctly designate these slanders, I shall oniee for all Say that whenever ihe private prosecutor in this case may think proper to become so against them, the North- West Company will not shrink from a- ny investigation into their conduct, so far from it, they will hail the day that enables them, before the world, to vindicate their characters from as- persions, calumnies, and libels, which have, for a length of time, been circulating with an avidity and industry proportioned to the rancour and false- hood which gave them birth and currency. All we ask is to give us notice when we are to be put upon trial, and we are ready and willing and most anxious to meet it. But^I do most sincerely trust that the Court will interpose its authority, and prohibit this most unwarrantable and dangerous I'l:, !; '♦; ••. ■.■Am i) il^irf ,1-t i •; 126 •tricle, under the.guiae of giving cvideDce of a pretended confession made p)r ilie prisoner, fori repeat that it is not impoqsible, hv^t it jnay be a matter of mdiflerence^ ait least CQ^parati?«lj so -to Bome^ who appear to manifest tl|e ^greatest anx- iety to promote the public justice of the country, by bringing offenders to trial and punishment; 1 say that it may be, not that it 199 [but that jt may be, a matter of indifferenc^e, nvbether this prisoa- ^r k acquitted or convicted, if by the trial tliey Are enabled to give publicity to calumnies, with safety from the consequences that in any other "Way would inevitably attend the propagation of libels. I object indeed t;o the evidence being re- ceived. Chief Justice SewcU. — 'What do you object to 'his own confession being .rect^ved. You will cer- tainly assign to us some reasons for so doing* \ confess I do not at present see what is to prevent its being gone into. If the eonfession was made without any promise or menace being used to in- duce or jnnoence the prisoner to ms^ke it,il do:j|ot see to what end* the objection is? made, -^hese questions have not as yet been: put, perhaps they might as well, as it will immediatehr : decide the question of admissibility. If the witness asserts that it was made freely, I do not .see to wMt c^nd the objection can be made. , Mr.Vmfekon, — A la fin, s'il plait aja Cour, 3u'il ne soit pas penbis mi temoin d*en accuser 'autres au moyen de son temoignage de la con- • fession :qu^il dit que le prisonnier ala narro A faite. !La charge mamten&nt devant Ja Gour est la charge de meurtre, et cctte charge est c0ntre le prisonnier a la barrc. Mon savant confrere : mon- sieur le Procurcur Geti^l se |H*opose, dans co moment, de pix)duire )a confessioR clu prisonnier; imais le tcmoignage du capitainc U^Oiionnens ^Mft' 12T ti*e6i |3Ci8 bom^ 1 la confession du 'meurtre, et nous pr^nons la liberte de soumettre & la Gour go to the jury, whether the whole or a part dr that declaration shall be received. Whether half the confession shall go. On this point I am decided- ly of opinion that his confession such as he did make, if admitted at all, must be taken entire. That the declaration once being admitted, it must be taken from begining to end. It is his own statement of his own conduct, and whatever it may be, it can affect nobody but himself. Al- though in this conversation or confession, there may be introduced reflections upon the North- West Company, or statements relative to them* they can be in no manner a£fected by them, they are merely the statements of an individual, exparte^ and no way obligatory upon those to whom they may refer. His statement, such as it is, if enti- tled to admission at all, must be ti^ken just as it was made, as a whole. The Crown most un- doubtedly are entitled to have it, and any part that doed not directly apply to this case, cin not, irom its merely appearing to implicate others, at all affect or bind them, oecause it* is merely an assertion, and completely ex parts^' hut it is not therefore to be eicluded. It iorins.a part of what ke did «ay, and therefore must be giv^ in e?i- 1)9 tclence^ otherwise we might do him o^ the Crown an injustice. Mr* Justice Bowen in toncurring in the opinion tts delivered bv his honour the Chief Justice^ remark' ed that it might be ah act of the greatest injustice to the prisoner, to separate or keep back an^ part of his confession, and that his story, let it make what it would either for or against him, must undoubtedly be taken &s a whole, just as he told it. Chief Justice SewelL — Capitaine D^Orsonnens, je voudrois savoir si vous avez fait au prisonnier, avant qu^il ait fait la declaration, aucune promesse, 0)U aucune menace, pour Tinduire a la vous de- clarer ? Captain D^Orsonnens. — Non, point du tout. II 1e dit comme une matiere de conscience;{*') Examination continued^ the Jittomey^Genercd. Captain D^Orsonnens. — Le prisonnier ra'a alors parle d^un assassinat qui avoit 6te commis dans la Kiviere Winnipic ; et il a a|out6 qu^ii se croyoit oblige, comme un honnete nomme, et en raison de cette proclamation, de reveler les circonstauces, pour Pinformation et le bien du gouvcmement de aa Majeste, d^un assasinat qui avoit etc commis. Chief Justice SewelL — Excusez moi, capitaine D^Orsonnens, mais jc voudrois encore vous de- mander, si vous etes sur que nous n^avez fait ni aucune promesse, ni aucune menace ? Ctmtmn D^Orsonnens. — Oui, votre seigneurie. Je vlui ai fait aucune promesse, ni aucune me- (•3)C. /. S.— Capfain D'Orsonneos, I wialitoknow wheth- er, before the prisoner made his declaration, you made him any promise, or anV threat, to induce him to declare it to you. C. D'0,^}i^ not any, he related it as a matter of conscience. 130 ■Vii I f I ' tMoe^ el j'iji^orois abn toill oe qui Itt concemoit* Je ne lui ai parl6 ni pour ni contrew . ^^Hdrney-OiMraL'^EMtonteE oe qti*il voos a Mi, Siuari, — I imderetand then that it is now propoaed to prove this pretended confeaiion. f am now in tine, th^reibte, to object to it8 being adMitted. There are two courses, I believe, open to me ; lat* to object to it now ; 2d. to wait till the cross examination, and then prove that it is not evidence, and from the circumstances un- der which it was obtained, that it is entitled to no credit whatever. It will turn out, f think, that it ou^ht not to be ffiven in evidence at all, if I am permitted to put a Tew questions to captain D^Or- fionnens. Should, however, the Court be of a dififerent opinion, it will be subject to cross eiam- ination to prove that it is not, from a Variety of circumstances, entitled: to credit I propose, how- ever, not only as the safest, but also at the same time as the shortest method, ta put a few <]ues- tions to the witness, under a belief that his an- swers will prove that it is not evidence^ to go to the jury at all, for that the circumstances under which it was made, were such as completely to exclude it. These questions I apprehend will ht {**) C. jyO. — The prisoner theii spoke to me^ctf an as8aaiiBji< tion that bad been cooimiUed in the River Winriipic ; aad he added that be believed himself boUnd, as an honest man, and ib puHBuaiice of (his proclamation, to reveal the cin:iiin|Uinoe8 of the assassination that liad taken placit, for the infoitnRia| and benefit of His Majesty's GoYemroent. ^ m C. /. 5.— ^cuse (ne, captain D^Orsoritiens, but I woind a- gain ask you, if you are certain that you made iteither aily promise, nor any threat ? C. D*0. — Yes, your liOfrdalrip; I neither made him any Eromiie, nor any threat, and I was then ignorantof all that rer tted to him. I said BQfhiw to hiid either for «r againat. wl. ^-^-Relate what hs told you. 131 very fow, and tlioy will be in the nature of an examination on the voire dire^ to which course I believe I am fully entitled. Mr. Justice Bowen, — ^Will you, Mr. Stuart, state the circumstances which you consider as entitling you to this examination, or what you propose to prove. JIfr. Sluari. — ^I intend to prove the existence of a private War between the £arl of Selkirk, in whose service this witness is, or was at the tiino this pretended confession is said to have been made ; a war against the North-West Company, and that, in the prosecutfon of that war, this un- fortunate individual at tl e bar, who was in the service of th&i, conpany, fell into the hands of his enemies, and AUomey-GensroL — T real!; muat beg to be per- mitted to interrupt my W . led friend, but really I do not understand what he mf'ans by a private war. I do not see ^i^'n we can> wjr a moment, al- low the gentleman io reason upon a p 'v^te war; a thing completely unknown, I believe, and which, could It eVen be proved to have existed in the ful- lest sense my learned friend contends for, could not certainly be offered as any justification for a murder, nor as a legal cause of influencing the mind of the prisoner. Mr, Stuari. — I admit that it is, and certainly ought to h^. ^i matter of regret that such a war did exist, and it may perhaps, at some future time, be a subject suitable for enquiry, why it w&amf prevented ; but at present we have no* thii^to do with that, f will prove, and that too by the most positive evidence, that a private war did exist, and that in the progress of that war, the prisoner fell into the hands of the party be- longing to the £arl of SelkirL This party was in reauty a military force, who had already cap- wtUMif '; KiiM H<' 132 tured by force of arms, and were then retaioiog by force, the principal station of the North-West Cfompanj. I say that it was a mihtarj force, be- cause it was provided with every thing tliat would constitute it one, arms,- accoutrements, ammuni- tion, cannon, in short, equipments of every de- scription. My learned friend, the Attorney-Gen- eral, appears to treat the idea of a private war ludicrously, but such was the unfortunate state of this country, that, owing to the commercial rival- ry, it did exist The force on the one side was composed chiefly of men who had been trained to war ; they had been soldiers in the regular army, and were commanded by officers of the army. The witness now in the box was at their head. He tells us that he is at this moment a half pay officer, and that he was formerly a captain in the regiment De Meuron, nor will it be considered, I think, otherwise than most extraordinary that this force was in the pay of the private prosecutor in this case, raised and equip|)ed at his expense, to promote his own views oi private advantage, and that the witness now in the box was his principal agent in these transactions, being at the head, or having the command, of this military force, or jather, from its illegality, this armed banditti. I I'emark again, that it is not a question whether' this was a legal or an illegal force, whether it is rot extraordinary that, with his elevation of rank, the private prosecutor should, in the promotion of schemes of secular advantage, the gratification of inordinate ambition, or to accelerate the deHhi|tion of a commercial rival, have not only for^^ten what was due to those laws which his rank ena- bled him to assist in enacting, but actually have put himself at the head of a force to levy war, at his will and pleasure, agaiiist those whose only crime wasv tl|at m the peaceable pursuit of a lawful commerce, %■ 133 rast they Interfered with his gigdntic an^, perhapk, c- uually visionary, prospect of an exclusive sovereign- ty over an immense and indeed scarcely explored country ; or whether it is not to be lamented that the government cither did not possess, or did not exert, a power adequate to the prevention of this private war; all we have to do with at present, •j the fact, that it did exist, and the consequen- ces of its so existing. The causes which origi- nally led to it, the means by which it was support- ed, and the reasons for which it was not, or could not, be prevented, are topics for discussion, pro- bably in another place, but most certainly at an- other time. Attomey-GeneraL — ^The statement of my learn- ed friend is certainly one that completely surpri- ses ine. As to the term private war, f really know of no such thing, nor can it, according to my opinion, exist. If the statement I alluded to just now is founded on fact, it constitutes the crime of high-treason, but surely the gentleman does not consider an accusation of high treason against certain persons, even were it susceptible 01 the clearest proof, to be admissible as contra- dictory or exculpatory evidence on a charge of murder. I really do not see what object is to be attained by the course my learned friend propo- ses to adopt. Chief Jmtice Sewell. — I am certainly astonished, gentlemen, at it^ being undisguisedty introduced ns an answer to an mdictment upon a specific chas*|^e of murder against an indiviaual, or that it canHor a moment be thought necessary or admis- sible on the defence, to exhibit an unqualifiod al- legation of high-treason against a number of per- sons of whom we know nothing, and are bound to know nothing. » Solicifor urwfrd/.— -As to the evidence propositi 134 < '4? . 'i" a. i to be gone into, tlio ofiicers of the Crown can nol, from any apprehension of the efiect it may have upon the case, be at all anxious to exclude it, tbouf^h perhaps it va^hi be a considerfttion with the Clourt, how far it is right to permit a witness on the part of the Crown, who is certainly under tlie protection of the Court, to be exposed, or made liable, to accuse himself, by his evidence in a Court of justice, of high-treason. Cfuef Justice SeweUJ- — No, Mr. Solicitor, we «hall certainly not permit hio(i to do that. He is undoubtedly under the protection of the Court, and it shall be extended to him in the most ample manner. It is not for a moment to be supposed, that we will alloyf a witness, whom, by every ob- ligatien of duty and office, we are bound to pro- tect, to implicate himself, by admitting that he lias been guilty of high-treason. We can not for a moment think of it Solfciior GeneraL — If my learned friend intends to cohti^nd that at the time of making this confes- sion the prisoner was in a state of duress, let him shew it, and we know the result must be that the confession must fall through, but it is a most ex- traordinary' and novel proposition to say, that this private war, to lito my learned friend's, own ex- pression, Tthoi^h one which I candidly confess I do not fully comprehend, even after this descrip- tion of an armea force,) that this private war, if it did unfortunately exist betweien these two com- panies, should be given in evidence as a reason, on an indictment for murder a^inst an indivi- dual, leainst receiving a confession made by the accused. 'If circumstances like these are to set aside a confession, I apprehend tliat no confes- sion will ever stand ffood. It strikes me to be a mode, as unjustifiable as it is unprecedented, to produce, by way of exonerating the prisoner from 135 livi- thc effects of hli own confession, a vague history of what BJ learned friend, with that ingenuity which on aU occasions distinguishes him, calls a private war, hut which, if proved, the law, I be- lieve, would denominate high-treason, and pun« ish as such. Chief Justice SewdL — Any course of examina- tion which has for its tendency to draw facts from captain D^Orsonnens bearing ever so remotely on the case, you may certainly pursue. One you have obtained, namely, that this witness is now a half pay captain, whether that will be of any con- sequence to the defence, matters not, it is a fact, and you are entitled to it If j^ou think proper to enquire if, at the time of making his confession, the prisoner was in a state of duress, whether le- gally so, or ^ an effect of the commission of crime in others, is at tho moment of no consequence, it is a question you have a right to put, and to have answered. If you proceed to investigate tl)e nature of the restraint it may be, I do not say that it will be so, far from it, that this wit- ness niay he not in a situation that he can be com- pelled to answer you any questions relative to that point. If it shoqld in any way affect himself, he certainly vafty refuse to answer, and we shall protect him in nis resolution. Captain D^Orson- ne|i8 tells you that he was a simple individual at the head of, or having with him a number of per- sons, in the service of the E^rl of Selkirk. He could not be a prisoMer of war, if he was a pri- soner at all. You can not expect that captain D'Orsonnena shall prove that, because, if he did, it might involve l^imselC You astonished me by the broad unqualified way in which you spoke of the war and of captain D Orsonnens. Mr, SiuarL — I do not want captain D^Orson- ncns to prove that he made this unfortunate man m \:\ 136 a prisonen I do not even care whether he ad-^ mits that he was a prisoner, for hj other witnesses,^ if we do not obtain it from him, we shall sufficient^ \y prove all the particulars which I have mention- ed. Indeed that this force wa3 headed by him» and was raised and paid bj the Earl of Selkirk, for the purpose of overturnine; his commercial rivals, is a matter of such public notoriety, that there can be no difficulty in adducing testimony to substantiate it. We complain that under the pre- tence of proving a confession of a crime, the wit- ness brought forward for that purpose, shall be permitted to go into a long story, no way con- nected with the subject, except that it may gratify some individuals to be enabled thus to traduce those who are anxiously waiting the daVf when, by vindicating themselves from the foul aspersions which have been heaped upon them, they may turnback the slanders upon their authors; but 1 repeat that a Court of justice ought not to be the channel through which they may, with impu- nity, traduce the characters of persons who have no opportunity of repelling the libels which ca- lumniate them. The pretended confession we do not hesitate to say we shall prove to have been made under circumstances which preclude it from goinff to the jury, whether it shall be eventually submitted to them or not, we do hope that individuals out of this Court in a legal point of^view, are not to be assailed in the manner this course enables a wit- ness to attack the most honourable and innocent men ; if for the present it were even admitted that his confession ought to be put on your honour^s notes, it ought, 1 humbly contend, to be confined to that part which strictly relates to the charge laid in tfie indictment against him, and the witness ought not to be permitted to relate any part of If- 137 the ccnversation that does not immediately bear upon the question of the guilt or innocence of the prisoner. Mr, Gak.-^l would humblj submit to the Court that Mr, Sluafi and Mr, Vanfelson. — Mr. Gale is not assuredly going to address the Court. Mr, UcSb, — As Amicus Cnrice I certainly must beg permission to say a few words, and conceive, it being a very customaiy practice, I shall be al- lowed to offer a few words. The impropriety of' traducing characters will be freely aamitted, but I think it has been but little avoided by those who complain of being attacked. As jimicus Curice I conceive, relative to the confession, a part certain- ty ought not to be received, but that, if admitted at all, it must be taken as a whole. Relative to the Earl of Selkirk having a perfect knowledge of the steps he has taken, and of the motives which actuated his conduct, I confidently aAlrm, that no man, disposed to act with any degree of honour, could do any other way than take the measures he did. All he has done, has been in the upright and conscientious, but fearless, execution of nis duty as a magistrate. Having had the honour to be employed on various occasions as leading coun- sel on oehalf of the Earl of Selkirk, I feel it my duty to protect his character when I hear it at- tacked, and more particularly as no circumstance in the case renders it at all necessary that it should be adverted to. Chdef Justice SewelL — I feel it my bounden du- ty to interpose and beg of jou, gentlemen, to let no warmth of feeling, though dictated by a sense of professional duty, added perhaps to personal esteem, lead us into forge tfulness. We also know the parties individually, and privately respect them all, but here, I know no body, Uod forbici T^-T^ P=- l.lli' ■• ! t j3a thuX I should. Whilst silting here I have, in con- junctioD with my Icaroed i^rotheif ^t my side, i^ duty, a serious and bouf^den duty to peribrm, that of adnainisteriBfr, with fairness and impartiali- ty, strict justice fo all parties that enter this Court. The Crown and the prisqner in this are entitled fq this strict justice from us,, and, according to the light we have, each shall have it; with no piher aim than securing to each pc^rty, to the public prosecution on the one hand, and tq the defendant pn the other, the fullest advantages af- forded tq them by the law^ we wish thi^ trial to take the regular and ordinary course. Tq the counsel on both sides we are disposed to preserve their privileges to their utmost extent. Bu^ we are strangers to each party, and earnestly desire we may not again hear of any. The charge is a charge of murder, and as such all the gentlemei^ know that the law provides a certain course for ascertaining the guilt pr innocence of anj individ- ual accused of tnat crime, and I trust it will be fairly, purely, and honourably administered, with- out reference to any thing but the upright attain-, ment of justice In the various applications which have been made to the judgment of the Court, upon questions of law, whatever has been granted, cither to the Crown or to the prisoner, has been given, because in our consciences we have believ- ed them to be entitled to it. The abstract ques- tion between tlie Crown and the prisoner is this, has he, or has he not, been guilty of tlie crime of which he is accused ? and .every thin^ having a connection with that question, has a right to be brought forward, but I do not see the most re- mote connection, or bearing Vupon this abstract question, or that the state of ^^tne Indian couptry fan furnish evidence to invalidate $ confession oi ^le crime of murder, nor c^ tlicre be the le^st 139 . , Qecessity pf referring to thq cooduct of persons not before the Court* on the one side nor on the oth- er. I repeat to J0U9 gentlemen^ the charge is a pharge ol murder; that is the question, and that alone, between the Crowi^ and the prisoner, and in ascertaining hjs guilt or l^is innocence, let the law take its course, fairlj, purely, and honouni- l)lj, take its regular course. I^ is our anxiety that it should do so, and we trust that the enos of justice, between the Crown and the prisoner, will' be attaiq^d without deyiating into a course that can not fend ito do us anjr credit in the cjes pf the world. Mr, Stuart, — ^I ana aorrj in goine into the state- ment required of what I intended to prove, that an J thing snould have fallen from me, calculated to excite a warmth of feeling, so as to call for the interference of the Court ; but the life of that man js put into my hands, in conjunction with my learned friends, and I feel I can not do justice to him without proving the state of the country, as in proving that I shall exclude this pretended con- fession, by shewing that it was made under cir- circumstances of re$traint and fear, and therefore not entitled to be 'admitted as proof of the crime, but coming in the words of Macnally, page 43,' *' in so questionable a shape, that it mMst be re- jected.'' Jiff. Justice Bowen,l fear I have been the inno- cent cause of this misunderstanding, by simply askinsr a question ; in reply to it, dimc.Mlties have, I think, been stated that I imagine wil( never oc- cur, for till you prove that he was a prisoner, you certainly can not obviate his own confession, and, fis yet you have not, in any shape, 'shewn it, on the contrary, the witness explicitly tells you he was not a prisoner. I do not see, even admitting it to have existed, that his apprehension or sup-^ If h !.-;!( .•I I ift ti"t'' ' I s i' ' 1. I 1 if Ki fii MO position, can set aside his confession, or, admit- ting all that has been stated to be capable of proof, th^t it would be asufiicieitt reason to justify our rejecting the confession ; as one unlawful act can not be set up as a justification of another, so neith- er can apprehension of the consequences that might result from an illegal act, be received as a reason for rejecting it. There was a legal rem- edj for any illegal oppression. Mr. Stuari.-^i is one thing for an iiregal act to be committed in the lower town of Quebec, and another, for it to be committed in the Indian territory, where there was no law but the will of the private prosecutor; in the Indian territory, where all who did not submit to his authority were treated as rebels and traitors. We know if this had been done in Quebec, the remedy was at hand, an appeal to the law would have imme- diately set him at liberty, but to whom, when in the power of the private prosecutor, was he to apply for redress ? I am sorry to afiect the feel- ings unnecessarily of any man, but I can not help it. In the performance of my duty to that man at the bar, no consideration of rank or conse- quence can for a moment restrain those observa- tions which I feel myself compelled to make. I can not from motives of delicacy to any man, how- ever high his rank, consent to any course that might have a tendency to sacrifice the interests of the prisoner, whose life indeed is the stake we arc endeavouring^ to preserve. By proving the state of the coiiritiy we think we shall prevent the pretended confession from going to the jury, or, should your honours permit it to go to them, that they will, in the exercise of a sound discretion, consider the circumstances under which it was obtained to be such as to warrant them in giving •no credit to it. I will, with permission of the 141 Court proceed with my questions and 1 shall first Had Fort WillKS^n captured hy Lord Sel- kirk before you saw the prisoner De Reinhard at Fort Lac ]a Pluie ? and when was it so captured ? Captain D^Orsonnens, — Non, mais Lord Selkirk en avoit pris possession le treize d'Aoikt.('^) ■ 4. Mr, Stuari'^s next question being to the manner in which the fort was taken possession oft the Chief Justice remarked, that he had taken down the answer of the witness, but that he now thought he ought not to keep it on his notes, that he had taken it doivn merely as a fact, but if Mr, Stuart intended to follow it up, and to prove how it was taken possession of, he thought, in justice to the witness, he ought to strike it oiit, and he should do so. Mr. Stuart. — Does jour honour not consider us entitled to go into that course of examination ? I do not wish to ask this witness any question that will implicate himself by answering, but I should conceive that I have a right to prove that Fort William was captured, and I purpose to go on, and shew that it was retained forcible possession of, and from that circumstance, combined with others, that the prisoner was under that restraint which the clemency of English law deems suffi* cient to exclude a confession from being received as an evidence of guilt. I refer again to Macnally, rule 9th, page 43, *' a confession forced from the mind by the flattery of hope, or the torture of fear, comes in so questionable a shape, when it is considered as evidence of guilt, that no ci*edit ought to be given to it, and therefore it is rejected/^ (•*) No, but Loi>J Selkirk look possession of it on the thir- teenth of Au|;ust. u , .■•!.'' ?«:.■: Jik; %:: d ll'ii 142 thitfJuiiice Sdoefll— If I undenCand, it is bj kn eiaminatiou In tho nature of one on the voire dire to Drove that by a militarjr or armed force, Fort Wuliam was talen possession of, and to fol- low up that hj eyidence of a similar takiiig of the fort or Lac la Pluie, and thence to infer, that the confession, offered on the part of the Crown, ought not to be pehnitted to go to the jury, be- cause it was a confession extorted from him by the restraint which he was subject to ; I appre- hend tliat these will be found to be too remote cir- cumstances to invalidate tho confession of the pri- soner ; and particularly as it stands at present in evidence, that he was not a prisoner, and that possession was not taken of Fort Lac la Pluie, till lifter he had made it, and was so taken in con- sequence ot information which he associated with his confession. You can, if in you^ power, con- tradict this by opposing testimony, but it stands thus at the present moment Mr. Siuart. — I must still, with great submission to the Court, cdntend that the doctrine on which I rely for the exclusion of this pretended confes- sion id correct, and is Sanctioned by authorities equally respectable as numerous. The rule in Mc. Nally whidi Ijust now submitted to the Court, is supported by Gilbert on Evidence, edited by Loft, page 137, and introdooed under that head, page 43, ^ these rules reflect the brightest lustra on the principles of the English law, which her nignly considers that the human mind, under the pressure ef calamity, is easily seduced, and liable, m the alarm of danger, to acknowledge indiscrim- inately a falsehood or a truth as dififerent agitations may prevail." What can be more applicable to the present case ? for, if even it was contended that the circumstances oueht not to have had that effecty were they not such as might easily be sup- 143 tooticf to produce llio stitte of mind which is de- scribed as leading iodiBcriminatety, «* from the a^^ {arm of danger,** to the ** admission of either false- hood or truth, as different agitations prevailed.*' This able writer goes on to exhibit, in lan^agei cqaallj fotcible, Oie reason upon irhich this ha- pnane construction of law is founded, therefore he adds, ^*a confession, whether made upon an official examination, or in discourse with private persons, which is obtained from a deienciant hj the impression of hope or fear, however slight the emotion may be planted, is not adibissibic evi- dence. For the law ^ill not suffer a prisoner to be made the deluded instrument of his own con* Viction.-* Fr^?ing thus set forth the role, and de- scanted on its propriety, he subjoins aiir illustration of its wisdom in these words ; *^ the wisdom of this doctrine was fully illustrated in a case at Gloceater. Three men were tried for the mur- der Off Mr. Harrison atCambden, and one of themv under a promise of jmrdon, confessed himself guitfy of the fact The confession, therefore, was net given against him, and a few years after it appeared that Harrison was aKte. [M. S. nolt titedin Leathers Cr. Ca, 2d, edit. 223 ; 3d. tdh. 298].** Mr. Phillipar, in his Treatise on Evidence, maintains the same doctrine, after stating, in sect. 5th. page 81 9 th»>^eight of a voluntary confes- sion, he describes the circutnstances that are ne- cessary to justify its admission against a prisoner. *^ But the confession Inust be voluntary, not ob- tainedf by improper ibffuence, nor drawn from the prisoner by mean? of a threat or promise^ for however slight the promise or threat may have been, a confessian so obtained can not be receiv- ed in evidence, on account of the uncertainty and doubt, whether it was not mede rather from a mo- tive of fear or of interest than from a sense of guilt.** Ik 'S' km'' m. 114 !' H' !l i:i f^ m Chief Juitice SewelL — Your argument is thdM that this confession ought not to be allowed to go to the jury, because his mind was under the eflfect of a restraiot, that exposes his confession to the objection tl./ ;«^ sincerity is rendered sus- picious. But such h [ hjbition is founded upon a very remote contiugency. To suppose remote contingencies, or remote probabilities, you arc certainly not entitled. The facts, (if I may be allowed the expression,) which immediately sur- round the case, you are entitled to prove, wheth- er they ought or ought not to have produced the effects which followed them, is another question, but the facts themselves you havo a right to lay before the jury, because they mav account satis- factorily for the effects. Thus, it you prove that the prisoner was suddenly taken possession of by a body of armed men, and by that means, under fear of consequences, was induced to make a con- fession, though it might not, from its being an il- legal restraint, set the confession aside, to pre- vent it from going to the jury, yet it might form a solid ground for examination as to what degree of credit Ivas due to it. But remote events^ such as the capture of a fort at a distance of, probably, a hundred leagues, or circumstances not bearing immediately on the question which the indictment brings before the.f ourt, I certain^' ly consider you are not entitled to go into. Mr, Justice Bowen intimaiing his acguiescence in these opinions of his honour the Chief Justice^ Mr. Stuart observed^ Then I will narrow my questions, so as to meet the decision of the Court ; and commenced his ex* amination on the voire dire. 145 Examination^ m Ukalfof th$pri$9ner^ on the voirtf dire. Mr. Siuart, — Did you fo into tlie Indian coua- try, or to Lac la Pluie, in a civil or military ca- pacity, at the time you have mentioned ? Captain D^Orsonnens.'^riki proc^dv au Lac la Pluie en Octobre 1816, comme simple individuy et non pat dans une quality militaire. Mr* Stuart. — Alliez vous seul ? Captain D'OrjonneMf.—- Non, je n^etoia pas seuL J'avois des colons avec moi en cliarge. Mr, Stuart. — Combien de pcrsonncs aviez-vous en charge ? Captain D^Or^onncM.— *J'etoif en charge de dix sept colons, hommcs decharffes des regiments Gtengary, Meuron, et Watteville, destin^^s pour la Riviere Kouge, et aussi de dix-huit Canadiens qui ^toient voyageurd au service de la compagnie de la Baie d'Hudson. Mr, Stuart. — La destination pour la Riviero Rouge ? detain D^Ononnens. — Oui. Mr, Stttart. — Avez vous arr£t6 au Lac la Pluiey et pourquoi ? Captain D^Orsonnens.'^t^ous avons -arrets en- suite au Lac la Pluie, en consequence de Tinfor- mation que j^ai regue de De Reinhard du danger qui nous attendoit k la Riviere Winnipic. Mr. Stuart. — Ces colons ont ils tous 6te arm^Sy et avec fusils de chasse, ou fusils Aro4ricains ? Captain D*Or5onnei».—- Oui. Tous les colons etoient armes de fusils, quelques-uns des fusils si la chasse, et d^autres, des petits fusils Americains. Jllr. Stuart. — Les Canadiens aussi ? Captain D^Orsonnens.^^^ou, les Canadiens n'e- toient pas arm^s. ii pm ! .r: 146 Mr, S/tiar/.— >Et comnie.TouB yous proposiez de TOU8 rendre a la Riviere Rouge, yous n^aviez pas rinteiition de prendre le F^rt du Lac la Pluie f Captain D^Orsonnens, — ^es ordres etoient de me rendre d la Riviere Rouge si je pouvois, et si non, de biltir une maisoh au Portage do Lac la Pluie. Assurement, je nVvois aucune intention, ni aucun ordre, de qui que ce soit, de prendre Ic Fort du Lac la Pluie. Si je nWois pas les moy- ens dialler a la Riviere Rouge, j*ai entendu de b&tir une maison au Portage du Lac la Piuie. Jl/r. Stuart, — Et vous vous considericz un indi- Tidu simple, sans aucun commandement ou autori- te militatre ? Captain D^Orsonnens, — J'etois un individu sim- ple. Je n-etois pas la avec aucun commandement militairc quelconque. JUr. Stuiprt, — Vous souvenez-vous d*avoir donnc des ordres commc capitaine ? Captain D^Orsonnens. — Non, monsieur, je ne me rappelle pas d^avoir donn6 aucun ordre a qui que ce soit, qu^a mes c<>1ons ct Canadiens. Mr. Stuart, — Vous n'avez pas donne aucun or- dre excepte aux colons, et non pas comme la tcte de Pavarit-garde d*une armce ? Captain D^Orsonneiis, — Je n*j 6tois pas commc la tetc de Pavant-garde d* me armee, point dc tout. J'etois la tete d^in parti de vojageurs au ««rvice de la Baic d^Hudson, et il n*y avoit point d^ordre donnc par moi« qu*a mes colons et voja- geurs, excepte un donne a monsieur Dease, ei cela de son consentemcnt. Mr. Stuart. — A quel terns, ct comment, Tavei^ vous fait alors ? Captain D^Orsonnens, — J^ai representc a mon- sieur Dease le danger ou nous serions exposes, si les Metifs venoicnt, et j^ai demande qu*il nous lo- gcroit dans Ic fort, ofirant en meme tems de lui 1^ Cl c< ilk r« i'« Dc dr< die » sigi C D'C ffcuj (.. as a si Mr, C,l coFonis Mr. C. / nten of w, did yon issue that then ? C. D^O. — I represeqted to Mr. Dease the danger lo which we should be exposed, if the Mitifs came, and 1 demanded of him to lodg^i us in the foti, offering at the same time even to pay him a rent. He refused me, saying that it was impossible, and I then, as a measure of precaution, demandrd the arms and am- munition from him. The exigency of the circumstances obliged me to make thiii demand, and I represef^l^d it in that way lu Mr. Dease. Mr. Dease dclive:<:d the aims and ammunition to me, and I drew up a receipt for them, in the terms which he dictated to me, for his justification. Mr. S. — This receipt ; how did you sign it ? C. D'O. — I signed it, ** captain D'OriiunQens, cominaiidii^ lb« advanced guard of Hud«oa'i Bay voyagcurs." ration w arms on ' Rot fron ' Mr. : H9 which was to prove Uiat De Rcinhard made this rretended confession in a state of actual duress, think I have, without deviating at all from the rules under which the examination on the voire dire should be carried on, nearly shut out this pro- tended confession, by shewing by this W!tnes5i that he was under a constraint, and that of the most arbitrary kind. Jfttomey'GeneraL — I believe, however, that all this has no reference whatever to the confession, but took place some days after that it had been made, and was actuallj^ in conseouence of infor- mation given by the prisoner at the time he made liis confession. Was not that the case captain D'Orsonncns ? Captain IXOrsonnens, — Oui, ces armcs ^toient rcgues de monsieur Dease apres la d6claration de De Reinhard. La declaration de De Reinhard a (:tc faite le troisieme d'Octobrc, et j*ai regu les armes le sixieme ; et je les ai demandees en conse- quence de ^information que j*ai eue de lui. Mr. Siuart, — Comment avez-vous signe le re- 9.i?C') Chief Justice Sewell. — It turns out to be of no consequence how it was signed, for it was three days after, and could not therefore possibly in- fluence his confession. Mr. Stuart. — His answer might perhaps affect his credibility when we come to cross examine the witness, as we shall, I think, then shew that all this resulted from the open private war of which 1 have spoken, and which I shall then demon- ( "'^ ) r. /)'0. — Yen; these ai"m<» wcw rrccivcd from Mr. Dcftse aAcr De Reinhard^s declantiun. De Keinh^rd*)? declA- ration was made on the third of October, and I received the arms on the si:i.'; I 1:?^ (1! ii I ; 111 ' 4;' if 1 • 'M N' -5 'Ml Examination resumed by the ^Attorney-General, Captain D^Orsonnens, — Quand j'ai eu la conver- sation avec De Reinhard, il a bien compris que j'c- tois lu comme particulier simple. 11 n^etoit pas prisonnier alors, et je lui aicxplique combien j'c- tois flSlch6 de me trouver dans ces difficult^s. A- vant sa declaration, il savoit bien que je n^e^ois que rindividu simple. II m^a dit qu^il a ^te en- voye par monsieur Archibald Norman M^Leod en qualite de connctablc, muni d*un warrant, pour arreter un nomme Owen Kdveny qui avoit mal< traitc scs gens qui avoient deserte, et s'otoient plaints a monsieur M'Leod, (c*est-a-dire les eens clu bateau de Keveny, a ce que j*ai compris,) et qu^il Pavoit fait prisonnier, et 1 avoit amen6 au Jpas de la Riviere. Que quelques jours apres un conseil a etc tcnu, oii sc truuvoient monsieur Alex- ander M^Donell, monsieur Archibald M^Lellarit Joseph Cadottc, Cuthbcrt Grant, et plusieurs au- trcs Metifs dont j'ai oublie les noms. A ce con- seil, De Rcinhard m'a dit qu'il etoit present ; noo pas un du conseil, mais quMl etoit present, et que dans cc conseil il a ete resolu que Kevcnj etoit un homme de trop grande consequence, et qu'il fa!- loit le tucr, mais qu'il falloit iairc attention ue ne pas le tucr parmi les Sauvages, et qu'cn conse- quence on Pavoit envoye au Lac la iMuie dans un canot. Qu'a force dcs sollicitations d^un nommu Mninviilc, qui avoit consenli do le tuer, lui (De Reinhar%!,) a conscnti de surveiller a ce que Main- ville le fit ; et qu'arrives a un endroit appelle les Dalles dans la Riviere Winnipic, Keveny dcman- doit de dcsccndrc a terre, ce qu'ctoit accorde par De Reinlianf. Qu'alors que Krveny rcvenoit 151 -i • pour se r^cmbarquer, il (De Reinliard,) a dit que €*etoit Ic bon moment, que Mainville aussitut 1&- cha un coup de fusil, qui frappa Keveny et lo blessa avec la balle mortellement a la gorge, et que par acte d'humanit6, voyant qu'il nc pouvoit pas vivre, il a passe son sabre deux fois au travers de son corps pour rcmpccher dc souifrir, et quo d^apres tout ce quil avoit entendu de ses bour- geois, il croyoit faire un acte mcritoirc, quand nicme il Tauroit tuc, parcequ^il consideroit les An- glois, ou gens de la Hi vie re Hougc, comme les cn- nemis dc son gouvernement, et qu'il auroit fait la meme chose a tout autre Angluis que Keveny : ayant entendu a un conseil dc guerre, quclque terns auparavant, qu^on sollicitoit les Sauvages dialler faire la guerre aux colons et les Anglois de la Riviere Rouge, qu'on consideroit comme des ennemis du gouvernement, et aussi par les repre- sentations de monsieur M'Leod. Jo nc sais pns qu^une declaration ccrite a ete faite par De Rein- hard. Je n^etois pas magistrat, et je n^ai pas pri» la declaration par ecrit, etje n^ai pas connoissance que sa declaration ait etc prise par aucun magis- trat, ou aucuncment, par 6crit.('*') (••) When I held Ibe conversation with DeRoinhnrcJ.ho nreil knew th.^t I was there as a simpio individual. He was not ihcu a prisoner, and I e!(plained to him huw nuich I was vexed (o find iny««lf in such dilHculties. He knew, hefure inakin{^ his declaration, thai \ '^sh only a simple individual. He told me that he had been sent by Mr. Archibald Norman M'Leud, iu the capacity of constable, and }>rovidcd with a warrant, to ai> rest one Owen Keveny, whi» had ill treated iiis people, who had deserted, and h.-id made a complaint to Mr. M'Leod, (that is to say, the crew of Keveny *» boil, as I unite rstood,) aud that he had taken him prisoner, and had carried iiim to bas de la KivitVe. That some days afterwards a council was held, nt which were present, Mr. A! .xander M'Donell, Mt. Archibald M*LeUan, Joseph Cadotte, Cut*if)ert Grant, and several olher Mitiff, whose names i have forgotten. De Kt'lnlia-d ( 153 une partio aux autrcs, et qu'il avoit garde une partie lui ra^me, ct parmi, son writing desk, II m'a dit qu il le consid^roit trcs certaineraent mort, puisqu^il a dit quMl ^toit bless^ mortellement, et qu'ilg ravoieni aesnaoiiie, qi pris toutes ses hardes, jusqu^a sia chemise, et qu* an avoit laiss^ le corps tout nu. Attomey'Gemrd, — A-t-il dit, le corps de mon- sieur Keveny ? Captain iyOrsonneM. — Je ne me rappelle pas lequel il a dit, le corps, ou monsieur Keveny. C'etoit le troisieme d'Octobre qu'il m'a fait cette declaration, et il m'a dit que ceci etoit arrive en Septembre alors pass6, et il a nomme le jour dont je ne me rappelle plus a prescnt.('*) (''•)C. D*0. — I have not recciv«d any pay, from any pcrsou whatsoever, since the regiment has been disbanded, except from His Majesty. I have besides my rents, my own income, which arc paid to me by the Swiss. I never received any money from My Lord Selicirk, nor from his agents. De Ueinhard described Keveny to me, who, he said, was a handsome young man, tall, with light hair, inclining to red. He likewise told me uhat they had done with Keveny's body ; that thny had dragged it some distance along the beach, and tt^at it had been left there. That they had taken his efTecIs, and that he had given a part to some, and a part to others, and that he had kept a part himself, and a- mongst them, his writing-desk. He told me that he looked up- on him as most certainly dead, for he said that he was mortally wounded, and that it was in order to save him a few mnmenls of pain that he had run his sword through his body. He told mo that they had stripped him, that all his clothes were taken, even to his shirt, and that his body had been leA quite naked. A. G. — Did he say the body of Mr. Keveny ? C. D^O. — I do not recollect which he said, the body, or Mr. Keveny. It was on the third of October that he made thiM dc- .claration to me, and he told me that this had happened in Sep- tember, then past; and he named the day, but uiiich I do not jPOTv recollect. \m: ^\.!^^ ' t ■zm* ^v^ ^mnr r ' 1 i 1^ / Mani m '. ! 55 examinaiion conducted by Mr. Siuarl, Captain D'Orsonnens. — J'ai 6te ci-devant capi- taine dnns io regiment De Meuron, et le prisonnier . Jc suis parti de Montreal le vingt-septieme de Mai 1816, avec huit hommes, ci-devant des Meu-> rons, engages comme voyageurs jusqu'a Kingston, mais avec permission de proccder et s^etabhr a la Riviere Rouge s'ils Io vouloient, et aussi il j avoit qiiatorze ou seize ou plus d'hommes ci-devant des Wattevilles. A Kingston le capitaine Matthej, monsieur Graifenreitn, et le lieutenant Fauche, nous ont joint, avec cinquantc ou soixante hommes, et au. terns que nous sommes rendus a Fort Willi- am, le tout pouvoit se monter a quatre-vingt ou quatre-vingt-dix hommes. Le Fort William etoit occupe par Milord Selkirk et ses gens, dans le tems que j*ai eu la conversation avec le prisonnier deja mentionn^e. Tons ces hommes, les vingt-qua- tre avec rooi prcmierement, et les autres, etoient engages sous la direction, etau nom de Milord Sel- kirk, ct do la Compagnie de la Baie d'Hudson, pour faire le voyage a la Riviere Rouge et prendre (les terres la s lis les vouloient, ou si non, de re- tourncr en Europe par la Baic d^Hudson. Le ca- pitaine Matthey etoit sous la direction de Milord Selkirk. Je n*ai jamais rc^u d'argent de Milorit Selkirk^ ni de la Compagnie de la Baie d*Hudson, et jc n'entcnds pas en recevoir. Ces hommes e- toient armes, en partie. La plus grandc partie 6- toit armee. Nous avons passe par le Fort Willi- am en allant a la Riviere Rouge. Nous avions des canons, njais non pas montes, ni aucune — lis etoient destines pour la Riviere Rouge, pour la defense de cette colonic, et, comme jVi croyancr, pour remplaccr d'autres canons qu'on avoit empor- tis dc la Riviere Rouge, ou qui avoicnt etc volos clc 155 ]a colonie ]*ann6e auparavant, sL ce que j^ai cntcndu. Je n'avois pas de connoiesancQ actuelle que ces ca- nons ctoient vol6s, mais je le croi».r'**)J Mr, Stuart, — ^Tliis very answer demonstrates, I should humbly submit, the necessity there exists, for the attainment of justice in this case, that we should be permitted to go into evidence of the ge- neral state of the country, for I do most sincerely consider that, if 1 am not allowed to do so, tho })risoner is deprived of his principal ground of de- ence. I have no wish to enquire whether My Lord Selkirk was right in taking possession of Fort William with an armed force, or whether he was justified in pushing his conquest to fort Lac la ('••)C. jD'O.-I was formerly captain In Ihe regiment of Meu- ron, and Ihe prisoner . I left Montreal on the tweuly- seventh of May, 1810. with eight mm, formerly Meunms, en- gaged as voyageurs to Kingston, hut with permission to proceed and establish themselves at Red River, if they chose it, and (here were also fourteen or sixteen, or more, men, formerly Watte- villes. At Kingston we were Jointd by captain Mntthey, Mr. Gratfenreith, and lieutenant Faucbe, with (iHy or sixty men, and at the time we went to Fort William, the whole number might amount to eighty or ninety men. Fort William wa thing, after what I liave witnessed of the lawless violence practiced in this unhappy country, can ex- cite my astonishment. In discharge of the injpe- rious and painful duty confided to us, thoro is ik>- thing that we consider im|>ortant, that I do not feel myself compelled to insist upon. The preserva- tion of the interests, nay the hfe, of that uiau is en- trusted to our hands, and from no motive ct^ deli- I. »ft 4 M ^ .^^> IMAGE EVALUATION TEST TARGET (MT-S) // {./ ^ >^ .** fe. :/- 4^ m ^ ^ ^ ^^5 lit m II 1.1 i"^ isfi i Photographic Sciences Corporation 33 WIST MAIN STRf IT \MHSTI«,N.Y. MSM (716) •72-4503 « ) ,rd me an opportunity of putting the questions which I purposed, and of having a formal objection made to them, and by that means I shall obtain a solemn decisioKi ai tro Court To me^it is a matter of complete iiM^ffer- ence which way the circumstance is introduc- ed to the attention of the Court, but after its opinion intimated just now, I shall only as a mat- ter of fact, I presume, be permitted to shew that Fort William was taken possession of by an arm- ed force ; that Lac la Piuie fort was also taken |)os8ession of by one, a smaller one certainly, but m co-operation with, and indeed a part of the lar^ ger one, and that at this time it was known to uie prisoner that Fort William, the only outlet from that territoiy^ was in possession of the £arl of Selkirk, or the Hudson's Bay Company, hav- ing been taken forcible possession ofi i also shall Erove that previous to ttie confession^ the fort of ac la Pluie had been taken possession of by tap- tain D^Orsonnetis, for, if I e^ablish the fact that Fort William being taken was in the k^iowledge of the prisoner, I consider that the res gesta of the af- fair is settled, for the influence upon his mind must necessarily have been stronger when he witnessed a small division of that force, a detachment from^ the main body, ** une avant-garde d'un corps d'ar- m^e,^' detached from the same body, to pursue the ifaiDf 9ours6 at fort «f Lac la Pluie, which had 161 previously put them into possession of Fort Wil^ tiam, and in point of fact the moment they took possession of Fort WlHiamf I consider, (as was reallj the case,) that thev bad a cotnplete command of the country, and all who were witnin its bounda- ries were completely amenable and subject to their will, to which any opposition was completely un- availing, as it mus4 oe nu^tory. These facts, I presume, I shdil be permitted to prove ; it will then be for the jury to infer, as snail to their judgements appear right. To attain this I pur- pose putting simply one or two questions which, if the Crown officers object to, I trust we shall be able to satisfy the Court, are questions essential to our defence, and such as we are entitled to put. My question will be, whether Fort Williaoi was not taken possession of, or captured, by persons ia the service of the Hudson's my Comply, previ- oust to the pretended confession of De ileinhard at the fort of Lac la Pluie, and that to De Reiidiard's knowledge ; and also whether the fort of Lac la Pluie was not also taken by persons in the service of the Hudson's Bay Company previous to the said conkession* [TJie AUormf'Generd sntif/i^eaing ihai he o^ected to ihe ^uestionsy the Court toas order&i to bt adjourn^ ed till Monday^ the 25^ Miy^ «Nf eight oUheky a. m.] COVHt 1PRC8ENT AS ON SATURDAY. Tlie jury were colled^ md hek^ present^ the Court dmred the getf^femen to t^ke 191 ,^. argument. AttorHfy-Generf^'-^Mj sole c^bjectin making tbf objection to thcivqu^sti^jif toisave the tii^ ^^ ;> . 1 '' . 'i !•!'■ .:.)!,■ f»t|i ■ .V,' i.ei: 162 Court inasmuch as no answer that the witr sss 6an give to these questions can be evidence. Chief Justice SewelL — We had better hear Mr. Stuart in the affirmative, and then you can reply to him. Jt/torytey-GeMtaL — The more regular wa)r, I be- lieve, is that which I have taken, of objecting to ' the question being put. The qliestion comes S*om them, and we object, and are beard on our oppo- sition^ and Mr. Stuart will be heard in replj to us. Mr. Stuari, — I wish to state the grounds on which I conceive myself entitled to put these ques- tions, and briefly to shew the bearing they will have on the case ; and, unless permitted to do so, as the learned gentleman can not know the pur- pose for whic^h they were put, I do not see what he has got to reply to. rMomey-Generci.'—l object to the questions be- ing put at all, and I think the motive for putting them is sufficiently apparent from the questions themselves. The questions proposed are whether Fort WiHidm was not captured by persons in the service of the Hudson's Bay Company, previous to the confession of the prisoner, and that to his knowledge, and also, whether the fort ,of Lac la Pluie was not also taken by persons in the service of the Hudson's Bay Company, previous to the said confession.' If jl was so even, it would not, ih point of law, invalraate this confession, for there are only two circumstances which can destroy the evidence of a confession, namely, that promises, or menaces, were made use of to obtain it. Now a mere knowledge of the fact that Fort William had been taken can not certainly operate either as the one or the other, f humbly contend, and consider it unnecessary to detain the Court to support the prbpositidti by argument, th^t nothing but a pro- nkie of reward or advanta^; tft a t^nface of pu- 163 ttit IS be- utting istioDS lether in the jvious to his lac la [ervice the [d not, there »y the |ses,or . jow a tmhad as the msider irt the a pro- of pu- utshmeiit, is sofficietit to destrojr a confession ; and« however, for a moment admitting it to be a fact, that the fort was taken and kept possession of, in the manner stated by my learned friend^ yet that it is not exactly apparent how such a circumstance is to operate to preclude a confession being good evidence. I suomlt two points only have that power, namely^ that promises, or menaces, were resorted to to obtain it. Solicitor GeneraL-^l shall make my objections more general than my learned friend the Attorney- General has done, but I hope, without trespassing upon the time of the Court long, that I shaU do a- way, or cut down, a long chain of testimony which I perceive my learned friends are desirous to in- troduce, and as T think I shall be able to satisi^ your honours, that it is no way relevant, I trust it will be occupying a few minutes in a way that may hereafter save hours. The proposition appears to me to branch itself into two questions: 1^/. Whe- ther the prisoner was actually in a state of con- finement, in a state of actual imprisonment, at the time of making the confession, and necessarily un- der fear ; or, 2d, Whether, from the state of the country, owing, to a system of unlawful warfare^ he yvas under constructive restraint, and (torn that circumstance, under the impulse of fear, so that it operated to extort from him a confession, b proof or the existence of this unlawful warfare, it is pro- posed to prove that Fort William was taken. But mj learned friends do not propose to prove this as an isolated fact, it is intended only to form the in- troduction, or i^round work, to a long chain oT tes- timony^ of which> to use my learned friends own Wordsy this is the re^j^fto. I therefore oppose the admission of the introductory testimony though it is a fact, because it is a fact lio wiay bearing up- on the casey and intended only to pave the .way to "U il f< I 164 a history that will oonsame a great deal of oar time, atid all to no end, because it can not be proved to bear at all upon the charge against the prisdner, for he stands at the bar to answer to a charge of niurder.-*-The points for your honours considera- tion, ft consider to be two— -whether the prisoner Was in absolute custody, And therefore in tear, and 2ndhf, if not in actual confinement, wAs the state of the country such, that a constructive restraint operated on nis mind to such an extent, as to in- duce a fear that shall be considered as an adequate reason for rejecting this testimony. With respect to the first, what aoes captain D^Orsonnens say? He answers positively that he was noi^ that the fort 6f Lac la Pluie was not taken possession of, at least that it wiuinot at that time, but that in point of fact, the prisoner was as free as I am at this mofnent ; bu^ if he had been in custody,! con- teiid that it would not be sufficient to invalidate the confession made. Do we not daily see con- iessions made by persons in custody ? Confessions made in our police-office by persons with a consta- ble at their elbow ? but is that ever adduced as an evidence ligainst the validity of the confession? most certainly not. This part of the subject I con- sider to be completely answered, and that the ob- jection must faiL Under that part of the objec- tion, which is founded on the unfortunate state of the country, the doctrine of my learned friend, the Aittomey^eneral, f consider to be perfectly cor- Ir^ct, that it is only a direct promise, or a threat, Afeitcan destroy a confession, and I perfectly agree With that opinion, and consider it as unanswerable In law. I might perhaps be disposed to admit that, if by legal or illegd restraint, a confession wasex- tdlted^ though no direct promise or menace was a|)|>arent, that it might perhaps be a subject of fair considfetuticMi to go to the jury, for them to say 165 whether or not the confession had been m^de vaor der circumstances of imprisonment or restraint that entitled it to no credit. I might, but I do not know whedier in admitting even this, indeed I am not confident that I do not go too far, as an oQicer of the Crown, in so doingr but it can not, hpwever, apply to the present case, for there are no such circumntances about it; the evidence goes direct- ly to contradict it, for captain D^Qrsonneps says expressly) that he was not in confinement pr du- ress of any kind, if any thing of the kind did ex- ist, it must be most distinctly shewn, a^d it is ii;^- cumbent on the prisoner most distinctly to shew the circumstances to be of a nature so strong, that they actualhr led him to accuse himself of crime, to es- cape irom the dangers with which he was sur- roundedy and which threatened to destroy hicp.^ But the circumstance of restraint alope, cou)d it be admitted of have existed, is opt of itself suffici- ent to ol:(ject tO' a confession. Your honours will recollect a case much strjonger than a^y that have been hint^ at here, wbic^ existed npt long a^o \^ England^ that of restraint by an imposing mihtarjr forces which ^he intemperance of persons rendered it ^lecessatj) b^ way of preca^tiit^, tp ^ploy« In ihalt state of thipgs, 9 man w^ w^ i^usjpected was immediately whipped pff by a party ot dragoons, examined before a magistrate, or the secretary of etate, or the privy eo|]|icil^ etcd his examinations made evidence is^ami^'iy^ his trial. I am a- i^fire that i^ mayl)e i(i||if^ted that this was a ^o^ thpugh 9iQ imposing force, and that any confession made unde^ itf fear, was admissible-^because it was created by a legal body 0|>po8mg an illegal force. But you bpppM^ wHl see immediately that this itr* gument tells jiist the other way^ far he had no right tp suppose th^t he would be confined if he did npt confess. IJfi was not invited even to confess. If a -.1 'Vl'l :'w I'i '■:■■ 'i; ''.,.,3! 'Vr „ .«;« J 66 defendant is permitted to say that he made a con- fession because he was afraid of going to jail, I am apprehensive we shall never have a confession read. What is the common practice in London ? A man commits some offence, a nocturnal one for instance, he is taken up, carried to a watch-house, or lodged in the compter, if the circumstance occurs in the city, till the morning, when he is taken be- fore a magistrate, or the sitting alderman, as the case may be. Having been for some time before,^ and then remaining under restraint from the cus- tody of tbelaw, he confesses from some motive or other, perhaps, if others have been concerned in the infraction of the law, from a hope of being re- ceived as a King's evidence ; he confesses his guilt. On his triaJ his own confession is produced against him. No doubt, having misled himself in hi6 ex- pectation of being received as a Kiiig^s evidence, ne would be glad, on his trial at the Old Bailey, when his confession was produced in evidence a- ,^nst him, he would wish to be peru^itted to ob- , ect to its being received, and would assign/ as my earned friends do on the present occasion, that at the time of making it he was in a state of duress, and was afraid of the consequences, or in other "vfords was afraid he would be sent to jail. But we all know that would not prevent the confession being received, he must, to prevent it, shew, and most distincly shew too^ Ihat he was not only in duress, but that his l^^^hment was used to screw out of him a cb^lefil^lbn. Neither can the prisonep at the bar be allowed, on the other hand, to plead that he thought it might be to his advan- tage to confess, and that therefore he made his con- fession. The answer to that is, if he did think soj he has thought erroneously, and his erroneous con- clusion can hot invalidate a substantial confession, fn answer to that part of the argument we have 167 before heard relative to the nature of the difresa under which the prisoner allefl;e8 he suffered, and the operation of it on his mind, we make the same observa.ion, that, if even true, it furnishes no ob- jection to the reception of his confession. It is merely an erroneous conclusion of his own mind, and we add further, that as there is always redress for an illegal act, it is quite impossible that he can be permitted to offer that he was apprehensive of his personal safety at the time of making it, and that therefore, the confession eught to be set aside. His thoughts as to the consequences of what, if it existed, was an illegal restraint, can not certainly exclude the testimony we offer qb to his confession. Buit it is in fact needless to arjgue on that head, see- ing that at the time of makmg the confession, he was as free as any of us at present in this Court. For these reasons, we think it wrong that our learned friends should be allowed to ^o into proof of what, in their own words, is denominated a pri- vate warfare,* because, supposing indeed ; that they proved its existence, it could not, for many, very many, reasons, and among them, for those I have had the honour to submit to the Court, be re- ceived, either in justification of the act charg^<^ a- eainst the prisoner at the bar, for which purpose mdeed I am confident my (earned friends would not think of presenting it, neither, as I submit to the Court, can it be received, to invalidate the tes- timony of the prisoner's confession, which we have already laid befare the Court, and which we pro- pose, if pernJtted by your honours, to strengthen oy various other witnesses. I think it unnecessary* to offer additional arguments, indeed I ought to apologise to your honours ibr the length at which I have occupied the time of the Court. Mr. Stuart, — ^The question now in argument be- fove the Court, is one of infinite importance to the '■'..' i V ■ if I Hi!.} 168 priionery being in effect no less than whether he 18 to be pennitted to exhibit a defence or not ; for if not permitted, either bj cross eiamination of the witnesses on the part of the Crown^ or by the testimonj of those we hare to produce on the de- fence, to bring before the Court and the jury the aitoation of the country denominated the Indian Territory, he is, in point of feet, excluded from his principal defence ; and what period is so pro- per as the mK>ment when a pretended confession 18 attempted, (a confession which, if ever made, was extorted by the dread which might rery ha- tarally be expected to resolt from the unprece- dented state of the country,) to be introduced as evidence against the prisoner P I ask what time is '8o proper as this moment to bring before the Cotirt and jury, those circumstances which, if the confession ever should have been made as related hy the witness now^ under examination, would immediately shut it out as completely inadmissi- ble evidence against him. Owing to these circum- stances producing a constraint incompatible with that freedom which the wisdom and humanity of the law, unite in dedarihg absolutely necebsaiy add indispensable to, the validity of a confession. In producing these circumstances it is impossible not to touch upon the subject of those diniculties whieh unfortunately existed between the Hudson's Bay Company and the Eaii of Selkirk, on the one hiand, and the North- West Company, orn the oth- er. In so doin^g, however, I shall most studiously avoid intrddu^ng any thing calculated to excite the feelings of any person, and shall refraim from eV0ti tt^ntioning the name of the private prosecu- tor, or any other persons Who may be snpp( 3d to be interested on ihe other side of the questioUf excep^i^lP when, in detaitii^ matters of public no- torietyy it is completely unavoidable. It is a mat- 169 tor of public notoriety, which it k inditpentabljr requisite that I be DermiUed to prove, and I intend to do so by this witness, that an armed force, under the orders, and in the pay, of the Earl Selkirk, took possession of Fort William by force. I do not want the witness to acknowledge that he was at the head of that force, as I shall prove it by other testimony. All I shall question him to, wnl be the general state of the country. ^Uemejf^enertd. — I am compelled to interrupt the learned gentlenmu. The course he is pursu- ing is that of an address to the jury, which cer- tamly can not be permitted, nor indeed do I con- sider that the circumstances stated by my learn- ed friend, are any way relevant to the case before the Court. Chief Justice Sew^L — I certainly wish Mr. Stu- art to confine himself strictly to what is absolute- ly evidence. I mean to points which, according to the acknowledged and established rules laid down to regulate the admission of testimony, he is entitled to insist upon offering, and we are bound to receive. I repeat to you, gentlemen, that the Court are equally sensible as yourselves, that a variety of dimculties distinguish this from ordinary cases, but there are none that render it either necessary or expedient to depart from eve- ry acknowledged principle upon which criminal proceedings are uniformly conducted. I do sin* cerely hope that the gentlemen on both sides will shape ^ir course in that way, and whilst so do- ing, should any point arise mvolving in it a dif- ference of opimon, the Court will enforce that ex- position of the law which by their office it is their duty according to the best of their judgements to furnish. Perhaps it is impossible strictly to con- fine gentlemen on a case like this, it may be in- convenient, and even unfavourable to one or oth- '^1 il I 'I I If ,' ■J ■i I.;,- ;(i .^: M:-: 1 .' f'l! ?:i|pi 170 cir of the partiest parties equally entitled to the protection of the (Court, but I do not see that it can be entirelj avoided, indeed on cross examina* tion at all times considerable latitude is allowed. . ^tiomey-GeneraL—'U the jury were permitted to withdraw* I should not object to the argument being pursued in any way that the gentlemen pleasecl, as it was not from any apprehension that eventually it will at all weaken the case on the part of the Crown,4hat I interrupted,'but because, though it is not relevant to the matter under our consideration, yet my learned friend^s argument, being in fact an address to the jury, their minds might, by his eloquence, be led away from what really forms the only subject for their considera- tion and decision, namely, is or is not tbe^prison- er guilty of the crime whereof he is accused, and for which he is receiving 4)is trial ? if the jury can be allowed to withdraw, we are prepared to qaeet my learned friend, otherwise we object to the course he is taking. Chief Jusliee JSewelL^— The jury unquestionably can not be permitted to retire. They are entitled to hear every point of law discussed, as well as the whole of the evidence. Every thing must take place before them, that they may be enabled to form a correct opinion. Mr, Stuart — ^I will, in submitting my argument to the Court, state nothing that I do not mean to prove. •^//omey-Genera/.-^Thkt I dare say. The learn- ed gentleman does not mean to state any thing that he does not wish to prove, but that is pre- cisely the very objection we ma|i:e. My learned friend is desirous to enter upon a long chain of circumstances which, if true, do not at all bear upon this case, and can not in any way be made l^yidence in it, although they might have a ten- 171 deficyi aided by his talents, to impress erroneous- ly the minds of the jurj, andHead them awaj from the only subject that ought to occupy their attention, namely, a consideration of iirhether Charles De Reinhard, the prisoner at the bar, is or is not guilty of the crime of murder. ' ' Mr, StmarU-^l conceive it perfectly competent to me to state an outline of what I intend to prove; indeed except I am permitted to do so, I do not see how the Court, or the officers of the Crown, can be enabled, either to object,, or to determine whether I am within or beyond the pale of cross examination; I have no wish to address the jury, because I know I can not be pehnitted to do so, • but I must, as I conceive, be allowed to state to the Court an outline of what I am desirous of r roving as well as my reasons for believing that am o%ring nothing but what is consistent with the accustomed course c|f proceedings. Mr, Justice Bowen.'^Vle set here, I take it, at the present moment, to decide whether the ques- ^ tions proposed by Mr. Stuart, and objected to -by the Crown officers, are, or are not, such as ought to be allowed to be put. The learned Crown of- ficers have been heard in support of their object- ions, and the counsel for the prisoner are now de- sirous of answering their objections, and of evinc- ing to the Court that they are entitled to put the Questions. Perhaps before the Court can satis- factorily decide that point, it is desirable that they should clearly comprehend the object of the gen- tleman in propbsing to put them, as, if I under- stand the intention Or design of these interroga- tories, they are to commence a series of questions relative to a supposed duress in which they al- lege the prisoner to haye been at the time of mak- ing the tonfessio'n, and which being proved, it , }^ expected thc( Court will decide to be not evi- 1 if \ •^' M':'4y- i'r 1.: .':. 5, 'If I liiili m i:b'-\>i w,m 172 deuce that can be permitted to go to the jury at all* It 18 our peculiar province to decide upon the admissibilitj of testimony in the fir»t instance, and when admitted, to the jury alone belongs the power of determining the credit that is due to it. The Court perhaps may be assisted in forming its decision^ if the supposed bearings of the testimo- ny which it is wished to introduce are pointed out. Mr. ' SfuarL^l metin to pVove, diial an armed force, which this witness accompanied tp Fort WiUiam, took possession of, and retained it by force, against tne inclinations of the North-West Company. I mean to prove, that the partners and servants of that company were ariielsted and sent prisoners to Montreal, upon charges of hav- ing committed murders, being guiltjr o? high'^-trea- son, and a variety of other oirences. I mean to i>rove, that this force, and particularly those who commanded it, represented that these measures of unheard of outrage and violence were perpe- trated under tlis sanction of the government, to which it was represented to whole of the North- West Company were rebels and traitors. F mean to prove, tnat, in ^e prosecution^ of this system of lawless terror, a division Brom the samie army captured and razed Fort Lac la)' Plnie, appro- priating to their own use the property, and' Ck^ Justice SewtM, — ^I must stop ^ou there Mr. Stuart: all that took place at Fori Lac la Pliuie, (and what it was we do not wish to know,) hap pened four days af]ter the confession was made, and therefore can not be evidence. We can nbt allow YOU to go into that, because, whatever might have occurred, could not, by possibHitv* innuence a confession made four days previouslj to its taking place. JUr. £i/tiar/.-*-I think, from the peeuUarity of the case, that it is not absolutely impossible but k" i*j 173 the. effect might, even under these circumstanceSf have been produced, or I maj perhaps be able to prove tins statement to be incorrect Chief Jusiia 5eM;«//.— That will be fair again — you certainly are entitled to do that, but I can not admit an action done four da^rs before a certaia occurrence oould, by possibility, be influenced thereby. Mr. SiuarL'^We further mean to prove, that it was at the time in his knowledge that Fort WiU liam had been taken forcible possession of by the Earl of Selkirk, and an armed force under hia direction, a force to all appearance of a military description ; a force raised, equipped, and main- tained, at die cost of the Earl of Selkirk, a force* under the more immediate command of this wit- . ness, captain D*Orsonnens, to whom it is said the confession was made, and who, at the very mo- ment he is represented to have received this con- fession, was actually at the head of a division of that force, prepared to renew at Lac la Pluie the scenes of Fort William. We intend to prove, that to his knowledge the partners, clerks, and servants of the North- West Company, were by this military force treated as rebels and traitors^ and that this usurpation of authority was repre- sented to be under the countenance of the gov« emment, that it was constantly held out that all who did not agree to the terms offered by this armed body, would be treated as rebels and trai-^ tors, in corroboration of which it was urged that the leading jpersons engaged in thexommerde of the Nordi^est Company were sent to Montreal to be hanged. If we make out this case, what efiect can a eonfession have when resulting from such circumstances ? it is the right of the' prisoa* er to«hew, at any rate, every circumstance which niay make in his favour. JSut, -quitting for th« i ..y,,. ■''/ m '■I\i.i :);» ■■*; ■mm m ;: ^'ir!^ m 174 present the line of argument I have had the hon- our of submitting to the Court, let me solicit their attention for a moment to the nature of the evi- dence vi^hich, in a legal point of view, is furnish-* ed by a confession. It is universally considered by all writers on the nature of evidence as the weakest that can be exhibited, although at 'first blush persons might suppose that it was the strongest. In support of tnis doctrine I might ad- vei4 to Blackstone who, with his usual eloquence, in vol. 4^ page 256^ in commenting on the nature of confessions, says, *^ and indeed they are^ even in cases of felony at the common law, the weakest and most suspicious of all testimony ; ever liable to be obtained by artifice, false hopes, promises offhvour, or else menaces, seldom remembered accurately, or reported with due precision, and incapable in their nature of being disproved by negative evidence.'' I might with confidence rely upon |he single authority of the eminent Jud^ I have cited^ but the same doctrine is maintained by Mr. Justice Foster, and in terms peculiarly applicable to the pretended confession upon which we are arguing. This humane and learned Judge, page 243, says, ^^ for hasty confessions, made to persons having no authority to examine, are the weakest and most suspicious of all evidence*'^ The very case that is this moment before the Court ; this pretended confession, how was it made ? (^admitting for the sake of argument that every thing we have heard relative to it is inca^ pable of contradiction)-^wa8 it not a hasty confes- sion ? to wlwrn was it made ? to a person unques^- tionably having no authority to take a confession, and, from peculiar circumstances, exposing this pretended^onfession to all that suspicion whirh the learned- Judge describes, as the inseparable attendant of confessions obtained *' in a hasty If5 iDnnner by persons having no authority." la in^ signing the reasons upon which the opinion 4 havd rea<;l is founded, he proceeds to state^ ** proof may be too (easily procured, words are often mis^ represented, whether through ignorance, inatten- tion, or malice, it mattereth not U> the defendant^ he is equally affected :n either case, and they are extremely liable to misconstruction." — ^He adds to all this) what can not fail to strike every person as the distinguishing characteristic of the imfortunate situation of this defendant, ^^and withal this evi^ dence k not, in the ordinary course of things, to be disproved by that negative sort of evidence by which the proof of plam facts may be, and of<^ ten is^ confronted." It is almost needless for me to urge that, if this sound opinion of an eminent jurist is correct and applicable in cases ^f felony which occur in the ordinary course of criminal jurisprudence, that it applies itself with tenfold force to that at present oeforo the Court. How, I might ask, is it possible to bring in this case negative testimony r the difficulty would of itself amount to a prohibition. I might advert toil great iHimber of cases in which the authorities re- cord erroneous convictions, arising from the exer- cise of extra-judicial authority by persons having no qualifications, but my learned friend who follows me, will have art opportuny of pointing' them out. The case of Hariison stands as a beacon on this subject, associated its it is with others of a similar description, £^0 familiar to every gentleman in the the law, that it WQuld be trifling most unwarrant* ably with the time of the Court, and the under* standing of the Crown officers, to attempt to refer' to them. What weight then, I ask, can be antici-* pated to follow such a confession? a confession loaded with all those Suspicious circumstances^ which the humane and enliglitelied Judges to whom 1 y I i U 'i •t-; 1 i f f ■; ' .«; '!>vi'^!i '>J .< v.M ./k '■'■'^ '■|l:"-i ■r^%/ :i 176 I have referred) describes as the ordinary charac* feristics of confessions, > but more especially of ** hasty ones to unauthorised persons, and our daily experience^ I was ffoing to say, confirms the dootrine, that such confessions are *' indeed, the weakest and inost suspicious of all evidence.^ Let us then be < cautious of giving a weight to such questionable testimony* Xet me again draw your honours attention to the circumstances under which Fort William was captured, and the representa- tions circulated throughout the interior of ibat country by the captors, for purposes too glaring not to be immediately appreciated. Let jt be re- membered that the whole of the partners and ser- vants of the North-West Company had been sent to Montreal for trial, upon charges which it was confidently asserted would terminate in the whole 6f them biding hung, and that all who did not sub- mit to this usurpation, masking itself by a pretend- ed authority from the government, were to share a similar fate with the rebels and traitors of Fort William. Let it be remembered that a portion of this same force proceeded to Fort Lac la Pluie, under the command of the same officer, and ar- rested the prisoner at the bar; that previous to the confession, as I expect to be able by the cross examination of this very witness, to prove incon- testibly, he had by him been made a prisoner. SoUeitor General^ should presume that my learned friend would not be permitted to lead a witness to convict himself of an offence, by ^ which hii:own safety might be endangered; that I think beyond even the very extensive limits the learned ^ntletnan himself has proposed to a cross exam- ination. Mr. Siuart — ^Does my learned frietid, the So- licitor Genera], intend to saj, that I can not sift any witness as to the accuracy of any statement 177 h^ pik^ haviD iKkacle ? for exampk, if captain D'Or> sMMieilft iboUld^' on his exaininalion io chief, testis i'y that De Reihbard was not in cuatody, may I not, bj cross exaninatbn, sift whether that is tho triith, and 4iFeatened with ignominious deaths^ whilst their proper^ was retained possession a£i he must have considered himself in the hands ot bis enemies ; i^»t enemies because he was in the service of >tbe eommemal rivals of that^ndlvidual who, most unaccountably, when we reflect on bit elevated rank, had raised and equipped at his own expense^ the force which carried on the siege^ end^ to crown the whole, superintended in per* H 1 ' 'Hi— 178 '.' ^ -ti^'iMo { ' '■ '!• ■^,?;' 1l:!:Vlil^ ;1 ':'''!, ■ !-i:« ^m ii^J ■•;*'!lk ."'.(flCl.vil soiii the execution of the lawless enterprize. My learned fdendy the Solicitor General, has compar- ed this to a case to which I consider it by no means analoffous. The case stated bj Mr. Soli- citor General was that of the riots in England, which unfortunately rendered it necessary to sus- pend that safeguard of personal freedom, the ha- beas corpus act. But, although for the securitj of the government, it was necessary to strengthen their arm . by withholding from tne subject that great barrier against the attacks or encroachments of arbitrary power, yet the examination a person 60 taken up underwent, was before a disinterested magistrate. Widely different was the case of anj person in the Indian territory ; the magistrate, be- foi^ whom his examination must be taken, was at tlie head, of an armed force, at the head of that very force which, by its lawless tiolence» had produced all those evils which we have this daj to deplore. The case of the prisoner ia one, I submit, which never has ioccured in the course of law proceedings, andt it is to be hoped, ^ill nev- ' ci* again disgrace a Court. Sincerely do I trust that no part of His Majesty^s dominions may a- gain witness such unparallelled outrage as deso- lated, under a semblance of magisterial authority, that unfortunate country. The ground we tdke is this, that we ought to be permitted to shew ^the stat^ of the country, because it is a part of our defence, is a part of the res gesia upon which we standi and, that being the case, that the Court and the jury have a right to be made acquainted with it. It is in fact essential to the correct ad- ministration of justice between the Crown aad that unjtbrtunate man, that this evidence be laid before the Court and the jury, who will respect- ively give what weight to it they think proper, and tl^t,^ if we ar^ deprived of aa opportunity of •0 doingt wfl b>8e the main prop of our defenee. Ishiill no^ tireiipMi fi^rth^r on the time of th« Court, as mj \eiifn6d MbM whd^foHows me will fo fully into thiit p^^t of Ihe argiim^ht, and in so oing willf I am confident, satisfactorily prove that hifil mind atthie^time of making this pretend* cd cenfldssiotl, 4^a8 tibt free, but that it was un* der the indueike ' of fear that it was extracted from him, and therefore ought not to be receifed in evidence. ;^', , ' Mr. FW'4»oii.-^Mon devoir au prisonnier est fe^i&et) droit, et c^est bien important si lui.-~- tkB oifficiers de la CoUronne ont voulu mettre eh prdifv^ uhe confession quMls (si pour un mo- ment nous, radmettions avoir kih actuellement faits, que niillement nous faisons,) disent euz- i^Smes ^ M6 faite a un individu sans aucune au* toritib pour t'epevbir la confession d'un criminel. Sous cette circbnstance, cette confession est nulle, paiteque ce n^estrien, excepts un conte fait exparit comme les autorit^s Angloises Papp^llent. La question^ et la seule question, est a ce moment, etoit it libre au terns qu'il a fait cette declaration au ca- pitaine D'Orsonnens ? Je dis que bon, il ne P^toit pas. Son esprit n'^toit pas libre. II 6toit tout-a* fait un prisonnier, parcequ'il n'avoit pas le moyen d^^chapper de ceux qui ^toient ses ennemis. Ke- fardons pour un moment les situations de De Rein- ard et du capitaine D'Orsonnens, et regardont aussi la jsituation des pays Sauvages dansce tems* J[)e Reinhard 6toit commis au service de la Com« p^gnie du Nord-Ouest, et le capitaine D'Orsonnent etoitau service de la Compagnie de la Qaie d'Hud<' Bon.(') . \ , . •. 0) Mil'. l^anfeUon.-^'i^y duly to the prisoner is ibunded up* en law, and is very important to bim. The Crown officers have fc*een desizoQs of puttii^ in proof a coafeision whichi (sup|)oiiii| "m^T 180 i'^/is^W/or Gfln^al^ ought to :.f\ ' t: ■^ 'T ^ri;^'r1i-| I ■At I'll ■. a ■F; Si ■', • >■"?■ mm ^r. Fan/etsoni'^l state U became in point ojf fact he Ivas upt^as, if certain U Orsonnens has not fidinitted it hiinself* we sba}l satisfy the jurj^ from )m^ oif n hand wntioSf that it was, t|ie case, au terns que le capitaine D'Orsonnens envojoit le billet a- ji^c la proclamation par McDonald etNolin, et lui donna ravis tie Vatteadre. ]Le ,l)Ulet etoit figp^ l^ajpiitaine, a ce que je crois. J.e d^inande s 'il ^itpU sipmle particuHer pourquoi lui donnei: Favis d^ Tat- ^, Jur. /uMtc9 ^Qwen, — ^It was not' quite so, I oe- jjisye,. Re said, I. think, ihat he ^ advised him to f ic{>/i,or something like counselled , llim to ,8top, at Xiap la Pluie till he^ should arrive th^re* . Mr.Vwfelson.'^Yotre honneur ime pardonnera} ftiii * fof a fnom^t that we were to admit that it had in ii^alitjr •b<&tn Mad«, wbkh we by no melijjs do admit) they themselves JB9y wM made to tn iodividual not invested with an Jr aetbority toieceive the confession of a criminal.^ Under thin circum- stance, this confession is void, because it is nothing but an tx "pafte story, as the English authorities tall it. The ^ueslion, ttlMi the ionly question, at this moment, is, was he at liberty at ihe time he ^ade this declaration to captain D'OffsomieBS ? I f ay no, -he .was not. His mind was not in a state of freedom. . Ik 'was completery a prisoner, because he had not the means of tiscipingWmi those who were his ckieiiiies; Ijet us 'behold, for a •VOiOmenU the respective situations of De Reinhflord, and ofcap* 4aia 'D'Orsonnens, and let us^lso take a view of the situation of the Indian country at that period. De Reinhard yiras acleric in the service 6f the North-We^t Company, and (bii(^rain jD'Orson- nens was in the service of the Hudson*s Bay Company. '*' ' \*) At the time that captain D'Orsonnens sent the note witk thf iprocjafpfUi^bby M'Donald and Nolin, and told bhn that be wai9 to ti^t(p(lifm. The note was signed by him as captain, at I tM^iftvei I aak why, if he was a simple i^vidual, didhe tell hini fo' wait for him ? 181 mais ce n^etoit paa an conceit, mais un avi^ de so* api^roche. R oisoit, que de la distance de tfento lieues, il a¥oit envoj^ x'folm et M*&onald. avec a^ Mt, Justice Bawen.'^You certainljr are Wrong— I wifl read to younij notes. Speakingof the sa- vages whom he had met, captain m)r80nnens sajs : *< lis m*ont depeign^ un tnilltair^ bFanc, com- ^ me un de ceuic qui me gardoient, et par Ya des/^ ^* criptiori, je n^avois aucuno doute que c^^toit t)e ^ Reihhara. Le len'demain, k ce queje crois, j'ai ^^ rencontr6 monsieur Dease,. qui venoil du Lac la *' Piuie. J^ai decqande si Reinhard, ^toit au Lac '^ta Pluie, et il m^a dit qu^ooi. En consequence ^ j^ai envoye McDonald, et Nolln, quand nous 6ti- ^' ons a trente lieues du Lac la Pluie, en avant, pour ^' porter un billet de ma part, et la proclamation ««de Sir John Coape Sherbrooke db 16 Quillet *^ I8I6t le tout adress^ par moi ei De Reiohardi-^ <* Dans le biUiet je lui. priois de m'atlendre, desi- *' rant d'avoir de lui des informations sur co que •^ s^etoit passe disms la Riviere Winnipic."(*) Mr, ranf^Qn whp were ray gqard, and bv the; description I had no doubt but it was De Ileinhard. C^n tpe: foilo:ifiiig daj, as I believe, Imet Mh I>ease, who came fraim Lake la Pluie. I enquirec( whether: De Reiobanl waa at l^abe la Pluie; and< b^ tqld mf| that b» wa*. tn conseqfienne, wl^en we i;rere at thirty' leagues distance frqm I^ke la Pluip^. I sent M* Donald and-Noliii forward to carry! a note from me; together witb the proclama- tion of 8{r John Cbape Shevbrooke of tbd Y6U1 ;Ja}3r, 18:16) the whole addiemed^h}^ me to I>a RaiQhaiHl^ In tbej^xHe I desii«d bim.to,i«aii for me, as I wanted him to give Ae. jofcrmaU^li Qt wbatbadpccurredjui (be River WinDi|>ic.'^ ^,m 182 ' '!. ■?.;■') 'ii ! ". a' <■« "i :■ -I »;,'! ^! Ir"' ^:>'* |a fitvation aetuelle de De Reinhard au moment d« oette conversation dani laquelle mes savaos con* freres disent qu*il a fait )a confession de ce meur- tre. Le Fort William a ete pris et restoiten pos- session du Milord Selkirk. %c capitaine b Or- sonnens s^^toit rendu an Lac. la t'luie avec dix sept hommes armes et dix-hui( Canadiens;, mais le ca- pitaine D^Orsonncps est, comme tl nous ^ dit, uu simple individu, ou un simple particulier. A pre- sent je vous prie de me donner votre attention pour iin moment. Je vous prie de vous souvenir que le Fort William a 6t6 pris par Milord Selkirk, et qu^au tems de cette conversation De Reinhard le savoit. Je prie Pattention de la Cour a cette circonstance, parceque, dans mon humble opinion, son efiet sera de detruire tout-a-fait cette confession. Pour sup- porter ma proposition, j*ai Fhonneur de vous faire voir une distinction dans la situation du prisonnier differente de ce que mon savant confrere Stuart a fait. Jc ne dis pas, sMl plait a la Cour, que De Reinhard etoit actuellement un prisonnier; je ne dis pas que soii corps a ete ventablement empri- sonn^, mais Fargumenl qui j^ai Pbonneur, de sou- inettre a la Cour est ceci. L^embouchure de ce' pays la 6tant dans les mains de Milord Selkirk et ses gens, et une partie de cette memo force ayant (au moment de la confession) entour6 le poste du Bas de la Riviere, (Lac la Pluie,) il n^etoit pas li- bre, et cons^quemment la confession ne pouvoit pas etre prod uit comme une preuve contre le pri- sonnier. n falloit que la consequence de ces cir- constances fut d^exciter de la crainte, et je sou- mets, si I'esprit est excit4 par la crainte, done la confession n est pas libre, et avant qu'une confes- sion puisse etre re^ue contre un prisonnier, il est absolument n^eessaire pour les omoiers de la Cou- ronne d^etablir qu^elle a ^te faite volontairement ^t librement. La regie est gin^rale, et s'il y a ^1 exceptions centre la reffle, c^eti le devoir dee Avocatf de la Couronne ae les produire.(M I •hall refer to M'Nally on Evidence. Under chap- ter 6* rule 9, page 43. '^ A confoBsion forced from *^ the mind by the flattery of hope, or the torture *^ of fear, Gomes in so questionable a shape, when ^ it is considered as evidence of guilt, that no cre- ^ dit ought to be given to it, and therefore it ought *^ to be rejc( ted/^ — Dans ce cas \k assurement la confession de De Reinhard doit etre rejettee. 11 (•) I proceed then to consider the real situation of De Rein- hard at the period of this conversation, in the course of which my learned brethem say, that he made a confession of this mur- der. Fbrt William bad been taken by, and remained in posses- sion of, My Lord Selkirk. Captain D'Qrsonnens had come to Lake la Pluie with seventeen armed men and eighteen Canadi- ans ; but captain D'Orsonnens is, as he states to us, a simple in- dividual, or simply a private person. I now beg you will ho- nour me with your attention for a moment. 1 beg you will re- member that Fort William had been taken by Lord Selkirk, and that at the time of this conversation De Reinhard knew that to be the fact. I entreat the attention of the Court to this circum- stance, because, in my humble opinion, its effect will be wholly to destroy this confession. In order to support my proposition I have the honour to lay before you a distinctive definition of the situation of the prisoner different from that which my learn- ed brother Stuart l^as pointed out. I do not say, may jt please the Court, that De Reinhard was actually a prisoner ; I do not say that his body was absolutely and truly imprisoned, but the areument which I have the honour to submit to the Court is this — The outlet of this country being in the possession of Lord Sel- kirk and of his people, and a part of the same force having, at the very moment of the confession, surrounded the post of Bas de la Riviere (Lac la Pluie,) he ^yas not free, and consequently the confession can not be produced as evidence against the pri- soner. The natural consequence of these circumstances would be to excite fear, and I submit that if the mind is under the ope- ration of dread, it follows that the confession is not a free one, and before a confession can be received as evidence against a prisoner, it is absolutely necessary for the Crown officers to es- tablish the fact th^t it was made voluntarily and in freedom. The rule is a general one, and if there are any exceptions to this rule, it is the duty iof the Crown lawyers to produce them. 1 1 t ,' « '.•.^ ''< \'' m 'ii- mm i ',»;•' '- •+• 4 ■'*,!' ■ ■»•■. ,.ui-i 184 a^^toit (MS 1ibi% an teiDS de !& converifttfofi. Q% toit ioipo^Brble de le Bortii* des mains d« ses enne? mis parcequ'ils avbiedt posddsiiioh du Fort Willii- am, \t seul debouchement du pays d*en baut, et t*il ne pdtlYoit |>a8 ecbapper de \tut mains, il d'^- toit pas libre, et sa (Sonfession n^est pas una preiive, confoimeroent aux loit, cofltre lui* C^est danger reux, tres dangeretlx, d'admettre comma preuva contra un prisonnier, ce qti^il a parl6 sous la con- traint«»(*) I refer again to the i^ame section and chapter of M'Nally. " These rules (says Mr. *' Loft in bis commentary upon Baron Gilbert's ^VEvidence), reflect the brightest lustre on the prin- ^' ciples of English law, wnich benignly considers ^ that the human mind, under the pressure ofcala- ^ mity, is easily seduced, and liable, in the alarm of '' danger, to acknowledge indiscriminately a false- ^' hood or a truth, as different agitations may pre- ^ vail, and therefore a confession, whether made '** upon an official examination, t>r in discourse with ^^ private persons, which is obtained from a defen- *' dant by the impression of hope or fear, howwer ^' sU^hi the emotion is planted, is not admissible *^ evidence.^ Et la raison pour cela, il dit, est €elle:(^) ^For the law will not suffer a prisoner *' to be the deluded instrument of his own convic- *' tion.*' La Cour verra a-present que Pargument de mon savant confrere Stuart, est qu^il etoit uo (*) If that be ttie case, assuredly the confesiion ot De ReiD* bard must be rejected. He was not a free agent at the time of Ihe coDversation. It was impossible to rescue him from the bands of his enemies, because they had possession of Fort Wil- lianu the only outlet of the interior country \ and if he could not esca|)& from their hands he was not at liberty, and his confession is not evidence against him, such as can be received in law. It Is dangerous, very dangerous, to admit what a prisoner may havt laid, under Uie impression of fear, as evidence against h^nij. ^) And the snsoD (ojt that, be says^ is this .:-«- ,"■'>'■'• .» 1*5 prtsomuer ^ctuelf bmiis moi, que son esprit n'etoit pas libre, el que cettecircoiptaoce s^^pposera avec succesconlre la confcssioi^*) I again refer to M'NaUv. Immcdi$telj fi>l!l(>wing the paragraph which 1 have juSl read, he gives an instance ;-« '' Harrison's case> ' of the danger of receiving con- fessions obf&ined through the influ<$nce of either hope or fear. Here a oaaii confessed a murder, and years after^ the individual was found to be alive. £n6n je dis que le Fort Willia?! 6tant pris, et une partie de la m^me jEprce 6tant au Lac la Pluie, il efoit dans les mains de ses ennemis, et n'etant pas ]ibrG, sa confession n^est p^s preuvc;, conformement aux loix.(') jijliornigif'C^eneral-^Th\9 ^^u/nent involves in It Iwo questions; whether certain places were taken to the knowledge of the prisoner, and what influ- jence that ciff^raistance produced on the mind of the prisoner. My learned i^iends, in argfuin? on the Ibrmer enquiry* assume as a facl that wnich does not appear, viz. that Fort L^jlc la Pluic was taken, whereas it stands in evidence that it was not taken till four days after the confession, and instead of influencing the prisonejc to make this confession, it was taken possession pf from the circumstances disclosed in his confession. This I conceive does away with the most considerable part of the arguments of both gent)eme;nv Uut more particularly of my learned friend Mr. Stuart. But my learned friends say that because ^ort (■) The Court will now perceive that the argument of my learned colleague, Stuart, is that he was actually a prisoner, but mine, that his mind was ndl free, and that that circumstance will successfully oppose the confession. ' (•) In eoDcluston, I say that Fort William being taken, and a part of the same force being at Lake la Pluie, he tras in the hands of his enemies, and, not being a free agent, bis confession is not tT^dence, !ic<^rdlpg to law. 186 } \ ^ms I') I'll Si M William had been tiakeii, therefor^ we ought to lose the benefit of this confession ; I really can not see how that circumstance can operate to the exclusion of this evidence, should we for a mo- ment admit the statements of the gentlemen on that subject to be correct. In what way could it lead him to make a confession ? did ft arise from fear that he would 'lose his life, or that he might be put to the sword, if he did not confess? I should think he took the most ready way to sacri* fice his life, to accuse himself to his enemies, as they are called by the learned gentlemen, of a crime which, from the proclamation he had just read, would compel them to make him a prisoner. One of the learned gentlemen has arguea that he was not free at the time of making the confession, and therefore it ought not to be admitted, but supposing, (which however is clearly proved not to be the fact,) that he was under restraint at the time, are not confessions generally made by per- sons in custody ? But he was perfectly free, and I do think that if ever there was a strong case made out, this is it. . The prisoner meets a man with whom he has formerly served in the army ; upon meeting they shake hands, enter into conver- sation, and, under perhaps the influence of con- science, he voluntanly accuses himself of a crime, or confesses the perpetration 6f a murder. If this is not a free confession, I do not think it will ever be possible for one to be made that can \^ offer- ed as evidence against a prisoner. Relative to the letter and proclamation abdut which so much has been said, I do not perceive that they weigh at all on the case. The proclamation contained no general pardon, on the contrary, it called up- on all persons to be aiding and assisting in bring- ing to justice all persons who had committed of- fences, and what the prisoner may now say, as 1S7 to what he inadgined mi^ht be the effect of making a copfesgion, can not oestroy, what we consider a perfectly voluntary confession. We thinly the arguments of our learned friends abundantly shew the danger of departing frodi what I had the hon- our to enforce in opening as the leading, and in- deed the onlyv principle on which it could be in- validated^ namely, that it was made subsequent to, and in consequence of, a proffer of reward if made, or a threat of punishment if it was not made, and I again offer it to the Court. The on<^ 1y circumstances that can prevent a confession of a person from being made evidence against him-f self, is that it can be shewn to have been made under hope, or fear, from direct promises of be- nefit, or menaces of danger. On this opinion we think we may firmly rely as being law, and th^ facts being distinctly proved that this was a free and voluntary confession, it must by your honours be allowed to go to the jury. It may be said, he thought it would make m his favour if he confes- sed, or that he imagined rt would be worse for him if he did not, but his imagination is not to destroy this evidence. He migni choose to ima- gine the world would soon be at an end, indeed were is no answering for a man^s imagination, but that is not to sit aside a deliberate act. Once admit this to be sufficient to set aside a confession, and there never will be another proved In this Court, for all that a prisoner will have to do will be to say, that when he made his confession, he imagined it would be better for him. Your hon- ours know that persons are frequently prosecuted upon their confessions, and though that confession is destitute of any corroborating circumstance, yet, being satisfactorily proved to have been made, conviction has followed, but never would occut Again, if a prisoner were allowed to turn rouni) ^m \- 1 m ■y -'- i'ty^MH ,Ji'-^>' l',W' *!,-,« t!5 i^- If 1 I )■• M ilv;#' 1^1 V?ti !H-r ■ V" < 18a and set his confcssioq jqisidc; bj^ sajing, that at th^ time of making it he thpMght it woum , he hettei^ for him; but even this was not (he case of De ReinhaFd} it does not appear even that he thought it would be better for mm. Qn the. whole^ con- sidering the circumstances under which it w^a made, we contend it is a good confession in law, and therefore contend, on the part of the Crown, that we are entitled to have it received by the Court, and submitted to the jury, who will give that weight to it which theji in their cona|cie|[^es, consider it to deserve. Chief Justice SewelL — On all testimonj offered in a Court of justice,, either in civil or criminal cases, two que&tipns arise : 1st. whether the Court can legally receive it;, and 2d. whether the jury ought to oelieve it; and this is particularly true of confessions in criminal cases. We have at pre- sent to estabh'sh the first point, and, that the de- cision of the Court upon it may be clearly under- «tood, I will state a case. A highway robbery was committed, but it was uncertain by whom : a man in company of some others^ the same night, dropped some words which excited their suspi- cion, an^ they took him before a magistrate^ be- fore whom he admitted himself to be the man, and delated the circumstances of the robbery; he was committed to the gaol, ta await; hia trial ; up- on the trial, his confession was proved, and it be- ing voluntary, without either promise or menace, it went to the jury. Upon his defence it was satis- factorily proved that at the time the robbery had been committed he was at a great distance, and that he had made this confession to enable his brother, who had actually committed the robbery, to make his escape; the confession was evidence for the jurj, though destroyed by subsequent po- sitive testimony 'of an alibi, but that overturnjoj[ Wli-m 489 was the resiilt bt the jury giving credit ^ the « til do awa/ a confession that is already in evidencff Ivho are to be the judges pf that eyidence ? who are to decide what is the effisct produced by it ? we answer in a moqipnty the j'liry, the ju;;y undoubt- edly, but if evidence of a direct and unmediate influence on ^he mind of the, prisoner was brmight forward, then, toe^ The evidence ypvi p^£r, to prpve from the influence upop his mind thathi^ con£^f sion ought hot to go to the jury, is remote, very jremp,te» indeed; too much so^ for us to say that it ouip^^ not to go to them, they wili ^ive w{iat credit to it they think it merits, but it is trenching infinitely tpo far upon their rights, in- deed it would be usurping on the peculiar province of the jury for us to aecide upon the merits of the confession, which we cpnsider we should be do- ing if w^ acpeded to the desires of the prisoner's counsel. Last time this subject was before us, you wenjt no farther than to the general enquiry, whether the prisoner, at the time of makiriff the alledged confession, knew pf the capture of^ort Wiiiiam, aild, upon that question being answered, the compromise, if I may use the expression, wag entered into bjp which tbji^ trial closed* Let me beg thpvgentlemen concerned for the prisoner to recollect, that ta the facts ^hich bear id any way upon the case there can be no objection, but to go into a detail of all the facts connected with this lamentable quarrel, we can not allow them. As a fact, (though I do not see that it can in any way affect the case,) you may prove, if you wish it, that Fort William was taken possession of, and that De Reinhard knew it before he made hit confession. Relative to Fort Lac la Ploie, you can not give evidence that it was taken, till you contradict the present witness, wLq swears that it was not taken possession of for four days after the confession of tne prisoner} and that his mformcH tlon given at thelHUQ pf mal^iog the confeflsionf, suggested the necessity (as a measure of self pre- servation to a certain extent) there was to take it. Mr, Justice Bowfin* — ^The argument we have been attending to has arisen from two questions whicii the counsel for th,e prisoner consider" it their duty to insist on putting to the witness, - cap* tain D^Orsonnens : 1st. whether Fort William. w;^ not taken possession of, or captured, by persons, in the service of the Hudson^s Bay Company, . pre- vious to the pretended confession of De Reinhard at the fort ot Lac la Pluie, and that to De Rein- hard*d knowledge.^ 2d. whether the fort of Lac la Pluie was not also taken by persons^ in the ser- vice of the Hudson^s Bay Company previous to the said confession ?■ We consider the circumstances under which the confession was made as so fair, that we were bound to admit it, andt accordingly received it a» evidence proper for the jury. A fact has come out in the cross exapofinatipn, namely, mat Fort William was before, and, at the time, the prisoner made his confession, in the possession of the Earl^ of Selkirk, it therefore only rem^^s to enquiro whether it was so to the knowledge of De Rein-^ hard, did he know it.'^ the fact is clearly and di- stinctly in evidence, and the influence tbe counsel for the prisoner wish to draw from this fact, in conjunction with what passed at Fort Lac la Pluie, (which I shall presently advert to|) is, that it ought to exclude his confession. By the gentle- men engaged in the defence, the question does* not appear to have been seen in two points in which, I confess, I have, from the first, seen it^ 1st. Thatthie circumstance of Fort William being taken was not strong enough to influence him to confess, and 2d. that, in the nature of things, if all is true that has been asserted; by being silent H51»li I'll''. 'lit .■ .-'iidett H^l^ ,fn!4 |.i,U iie \aA ittiotfaer chance ofescApe, for it appetm to mb to i>e ah act of asadneH to imagiiie, ^at bj ^^nfesBing to his ebeoDies, (as' they are descfibed in the argument to be,) his condition would be Bettered. Relatire to his being a pHsoner, the evidence of captain D^rsonnens positively con- tradicts the assertion. Ca^t^n DXifsonnens says Uiat'he was there as a simple individual, and that an armed force followed nini at a distance, but did nothing for four days after thcheoitfession was tDBJ^p hj the prisoner, and that what was then ^ohe, so far from influencing the confession, was i(u^gested by it, and that De Reinh^rd confessing lie had committed a murder, induced hira^ in obe- dience to the proclamation of the governor, to makd him a prisoner. Except you mean to say ihat the events passing in that country werre mich, that^ rational being would confess, or rathef ac- cuse himself of a crime th&t he never tommilted, I do not see the bearing of your questions^ h will be for the jory to determine ' Whether they Were 50, and upon ti cross examination it VfOuld be Wrong to shut out any facts #hich may lead (o that condlosidfc ; but it is only the facts that can be admitted, and those only that took place pre-V vious to the confession^ and I am fi^ee ito confess that I do not see the bearing of them^ f n;ti^is case," but it is -a fact, and you are entitled tto have it noticed if you .think it importfibt "Crosi £X(aninaiion cfeapimn D^tksdtinmfJe^tinwd (^ Mr^ Stuart. ^oulez vous me dire, capitain D^Orsonnens, si Milord Selkirk otses sens prirent possession du Fort William, et quancf ? ( ' • ) • (I •) Will you tell me, capUan D'OrsonnenS) whether tori iri led be the on- .ayt Ibat but was then was jsing obe- >r, to ) say wfac- it will were lid be ead to at can ^ jc pre- ^onfess ot sett :o have ntitkd ittnued sns, si ssion da Let l«^ 19* Ckiif Justice SeweiL — He has atreadj said that tiord Selkirk et ses gens ont pris possessioD du iFort William dans le mois d'Aout.(y) Mr. Siuart. — But, your honour, it is important to me, in my defence of the prisoner, to shew^ not only that the Earl of Selkirk took possession of the fort, but that he took possessl of it by force, and not only that he took it forcibly, but that he retained it by force. I must be permitted to put that question, as I intend to follow it up bj others. — Mr. Siuart repeated the question. Captain D^Orsonnens. — Le treizieme ou qua- torzieme d'Aout 1816, Lord Selkirk a pris pos- session du Fort William, c^etoit le treizieme qu« ses ^ns entroient au fort, a ma connoissance. Mr. Stuart. — A-t-il ete pris volontairement ; c^est-a-dire avec le consentement des gens qui Pbc- cupoient, ou par force ? parce^ue vous parley de la possession, comme si c^etbit volontairement donn^e a Milord. Dites nous le fait, c'est tout ce que je vous demande, juste, oui ou non ? Captain D^Orsonnens. — Je me considere qu'il le prit par necessite dans Pexecution de $on devoir comme un magistrat.(*") Mr. Stuart. — That 19 merely your opinion, (ot Selkirk and his people took possession of Fort Wflliain» and when? (>*) Lord Selkirk and bis people took possession of Fort WH^ liam in the month of August. (>«) C. D'O.— The thirteenth or fourteenth of August 18I6> Lord Sefkirk look possession of Fort William. IT was on tht thirteenth that his people entered the fort, to my knowledge. Mr. S. — Did he take it iroluntariij, that is to say, with the consent of the people who occupied it, or did he take it bjr force ? because you speak of possession as if it had been volun- tarily given to My Lord. Tell us the fact, that is all I ask of you, just, yes or no ? C. D'O.-^I consider that he took it by QtcfSiity in th« txc* Ctttion of his duty as a inagistrate. .if t *iiiiii. ;•! Wi'l' ', ■ I. ■flirt 5| Mivi! '5;^'** :■■ ;*•;: id4 tVbich I did not ask. I want a direct answer to a Verj plain (Question as to a matter of fact. Wag, or was not, Fort WiJiisfih taken possession of by force ? just, jes or no. - Captain ITOrsonnens, — ^Je me considere qu^il le prit par force, avec raison, ou par necessit^.^) Jnr, Stuart, — We do not, captain D'Orsonnens, ksk jou fbr your opinion of the justice of the cap- ture, or for any thine but a simple, but direct, an- swer to a matter of fact. Was, or was not. Fort William taken possession of by force ? just say yes or no, adcordin^ to your knowledge. Captain D^OrsOnntia, — Le quatorzieme d^Aoiit, 6u environ ce jour \k, le Lord Selkirk a pria pos- session de Fort William. Jc dis cela de nia pto- prc .contioi8Saiice.( * * ) Mr. StUart, — I wish it to be taken down, that Fort William was taken possession of by Lord Sblkirk, to the knowledge of this witness, and I will now ask him, was it taken by force or volun- tarily given up. Was it, captain D'Orsonnens, tak- en by force or hot ? answer just, yes or no. Cixptain D*Otsonnens,—^5& me considere du'il Pa pris par force, mais par necus?it6 dfths l%^uif6^ion de son dteVoir t;6mme-i— i--^^(**) Mr, Stuart. — ^We do not want your opinion, as to why it was taken possession of by force. It was a plain question as to a fact, and I beg that the witness^ ansv^er to the fact, iiamely, tnat be considered the fort to have been taken by force, tbi^j be inserted on ydur honours^ notes. His l!r ^ ( * '*) I consiiler that he took it by force, of tight, or hy rfec^i^Ky. {^*) On the fourteenth of August or about that time, Lord Selkiric! took possession of Fort Williann. I say that from mj own knowledge. (»») I consider that he took it by fdr^e, biit by nrd Selkirk a pris, par force, possession d« Foi^ Wilhakii dans le mois d' Aout 1816.^ Cdpiain [yOts6nnensi'-^Je din cela de ma proprs cbhndssal^ce;("') (' •) C. J. Si-i-^ls it of your owa knowledge that you tay thit ? C D*0. — Yes, I say of my own knowledge, that the fort was lalcen possession of by my Lord Selkirk. I was there in the «1ieettti6n of diy 4uty, and / P^) C. J. S. — Do you say of your own knowledge that Lord Selkirk took possession of Fort William, by force, in the mootk ff August latc. C. D*G.^I My that from my own personal knowledge. if . iWl ■''' ir 7i ■;f'^i i 'm^ .M;'!!' t,.i ! 196 Soliciior General — I* am really ashamed of tlie frequent interruptions I give to the business be- fore the Court, but in begging the Courtis pardon, I beg leave to say that I £ not think the witness ui^derstood the question. In point of fact, he did aot see Fort William taken at all ; he only heard of it, and therefore it can not be evidence. In- deed the witness has only spoken of what he con- fidered, which my learned friend upon the oppo- site side has constantly refused to admit to be evi- dence when that consideration made against him» Might I beg of your honour to put the question to -the witness, whether, to his own knowledge. Fort VVjlliam was taken possession of by force, or even .\t all, to his own proper knowledge, for, in point of fact, I believe, he did not see it taken. His hanour ilie Chief Justice, again pui the quet- lion and captain D^Orsonnens commenctng his reply^ je considere, was interrupted by Mr, Stuart, — I have repeatedly put to you, cap- lain D^Orsonnens, a very simple question ; you uave answered it, by giving, in addition, your opi- nions as to the reasons, or what you called the ne- cessity, that existed for taking it. 1 want merely the fact. You may decline answering the ques- tion, if you. think proper, or if you answer it, let me beg yoii simply to say, yes or no. Do you know that Fort William was taken possession of by force, by the Earl of Selkirk ? simply yes or oor Captain D^Orsonnens, — Non. Mr, Stuart. — ^Let the answer be taken down, if your honours please, for, upon the defence, we shall have occasion to refer to it. Chief Justice SewelL—lihe simple point is, did or did not captain D^Orsonnens see the fort taken by force ? Captain D^Orsonnens. — ^Je ne pourrois pas dire slmpfement oui ou non^ moyennant ^ue si j'avoii /■■ 1^7 the be- ion, less did sard In- con- ppo- I evi- him* on to Fort •even point t quet- I replyy u, cap- ; you ir opi- the ne- merely e ques- it, let o you n of by or nor lown, if re shall |g, did or [aken by ipas dire ■5 j'avoii alnsi rdpondu, pcut-^tre les crimincls paroitroicnt ^tre innocens, et les innocens paroitroient coupa- bles. — Je considere que le fort 6toit pris nar force, roais par n^cessite, c'cst ma croyancc, d'apres c% que j'ai entendu.(") Cfiief Justice Sewell. — We must have the fact whether, of your own knowledge, you speak of its having been taken by force. Did you. Sir, seo it taken, or is it merely from what you have hoards that you speak of Lord Selkirk's mode of obtain- ing possession ? Captain D^Orsonnens, — Jc ne sais pas s*il Va prls par force ou non, comme je ne Pai pas vu prendre en possession. Jc ne sais ricn si Milord gardoit possession par force, Tcte et l^hivei*. J*ai rcstc Id jusqu'au dixicme de Septembrc, et' Milord Selkirk et ses gens etoient alors en possession. Je suis parti alors pour le Lac la Pluiey et je ne sais pas pour combien de tcms aprcs, ils ont reste en pos- session de Fort William que par ouir-dire^ parce- que je n'y ai pas retoume. J'ai parti de Fort William le dixieme de Septembre, et jo me suis rendu au Fort Lac la Pluie, le second ou troisieme d'Octobre. J'ai envoye Nolin et Macdonald avant moi au Fort Lac la Pluie, avec mi billet adresse a De Reinhard. Je me rappeile le contenu ; par la lettre je I'ai pri6 de m'attendre pour me donrier des informations ou des connoissances de cequese passoit a la Riviere Rouge, et dans la Winuipic. Kfa lettre etoit signee par moi, comme capitaine. J'ai toujours sign^ monnom, capitaine D'Orsonnens. J'etois alors a demi-paie, et j'avois le droit de por- ter le titre. C'est probable, et je fcrois que j'ai r*") I could not say simply yes or no, considering th.^t if I bad so answered, the criminals might perhaps appear to be in- nocent, and the innocent might appear guilty. I consider thnt ihe fort was taken by force, but by necessity, that is my belief, accordnig to what I have heard. vP'^ 198 ,' i 1 •>,i ■ WM > ■< ■ Ik', mil 'Hi! 'i ■: .?^; riA'^-> !«,,.■ ' (-..r- :; v:-^-^':>^- m4m lit '! L"/- u^ ■ ajout^, '^ commaiMlant Pavant ffarde des voyageur$ *' de la Compagnie de la Baie d'Hudson,'' ou ^uel- que chose semolable. Je voudrois que le pnson- nier pourroit produire Je billet.(''') Jm. Stuart. — Was the paper to Mr. Dease of the 6th, signed in the same nvay ? Chief Justice Sewell. — The court are decidedly of opinion that it is impossible thej can permit jou to go into an examination of what took place sub- sequent to the confession. What possible influence can an occurrence which took place on the 6th, have on a confession made on the 2d or 3d of Oc- tober? You must Dot^ enter upon circumstances subsequent to the confession, as they cap not af- jfect the confession. Mr. Stuart.~^We consider it to be verj import- ant to us to prove that, throughout the whole of these transactions, he acted in a military capacity. I should imagine that, as a question to credibility, I might be permitted to put the question. Capt D^Orsonnens has said that be went there as a sim- O*) I do npt know whether be took it by force or not, since I did not see it taken possession of. I know nothing of mj Lord^s retaining possession t)f it by force during the summer and winter. I remained there -till the 10th cf September, and My Lord Selkirk and bis people were then in possession. I then departed for Lake la Pluie, and i do not know for what length of time afterwards they remained in possession of Fort William, only by hearsay, because I did not'return thither. I left Fort William on the tenth of September, and I got to Fort Lake ]a Pluie, on the second or third of October. I dispatched Nolin and McDonald before roe to Fort Lake la Pluie, with a r«ote ad- dressed to De Reinhard. I. do not recollect the contents. By the letter I requested him to wait for nm to give me information, or intelligence of what was going on at Red River, and in the River Winnipic. My letter was signed by me as Captain. I always signed my name captain D'Orsonnens. I was then on halfpay, and I bad^a right to bear the title. It is probable, and I balieve that I added ** commanding the advanced-guard of the ** voyageurs of the Hudson's Bay Company," or spmcthini similar. 1 wish that the prisoner could proiduce the note. pie individual. If I can by these questions sub- stantiate that he acted in a military capacity, 1 at once establish the principal part of my defence, for I prove the influence upon tne mind of the prisoner to be sufficient to dp away this pretended confes- sion. Chief Justice SewelL — Any thing antecedent to the confession that by possioility can bear upon it, and that you, Mr. Stuart, think likely to destroy or weaken it, by evincing that it was made under such suspicious circumstances, that it is not entitled to credit from the jury, certainly must, and shall be, received, but we can not, on the other hand^ permit you to adduce evidence of what might have taken place afterwards. We have not allowed the examination of capt. D'Orsonnens to be carried be- yond the 3d. You must remember that on Saturday I opposed it by remarking that it was no manner of consequence how the receipt given to Mr. Dease was signed, as it was given subsequent to the con- fession. The Court have decided that you can not go into such evidence, and we hope you will not attempt it. Cro99 Examination contim^ed by Mr, Stuart, Avez-VQUs dit a Mons. Nolin, ou a Mons. McDo- nald, ou avez-vous donne des ordres d^arretcr le prisonnier ? Captain Vorsonnens. — Non, point de tout; jt les ai dit de lui d^tenir, comme jc pense.(°*) Mr, Stuart, — Detenir ou arreter? Captain jyorsonnens. — Non pas arreter. Je ne puis pas dire si le billet 6toit pour lui prier de (3 •) Mr, S.— Did you tell Mr. Nolin, or Mr. M'Donald, or did you give any orders to arrest the (>r»8oner ? C. Z)*a— No, not at all ; I iQld them to detain him, I think. *:;i. M f,m ,>|: '^ i',.1' inn ! v:' i'^i IV , r ^1 H ':ii .,, ■■•■•t; 'i:^-'?:':^^i %.rm' 'mm Vf. nit';-: 1v i^ilV^^fciflpV' :5: i ■vlyl ."i^fj -j,::^^ ,.' 1^ . . 200 Attendre, ou pour Pordonner de me rester. J'^toit press^ au terns, mais je n'ai pas donn^ dWdre, ni a Mons. Nolin, ni a Mons. IVi'Donald^ ni a aucune autre personne, avaot que je me fus rendu au Lac la Pluie, d'arreter ou detenir le prisonnier De Rein- hard par force. En donnant le billet je les ai dit d^induire De Reinhard de rester pour attendre mon arriv6e. Je les ai dit de Pinduire a rester seule- ment, et comme je connoissois Thonn^tet^ du pri- sonnier, j'etois bien persuade, qu'en voyantla Pro- clamation de Sir John Coape Sherbrooke, et rece- vant mon billet, qu^il resteroit. Quand j^etois pour parler a De Reinhard au fort, il y avoit quelques nommes qui suivoient. Je ne puis dire le nombre juste ni s'lls etoient armes ou non. lis suivoient de loin par curiosite. J'ai arrive au Fort du Lac la Pluie avec deux hommes i|ui etoieut armes, et j^etois arme moi-meme. Les autres suivoient bien eloignes, et je ne puis pas dire s'ils etoient armes ou non. Je n'ai pas regu, ni attendu, une remune- ration de Milord Selkirk, ni de la Compagnie de la Baie d^Hudson. Je n'ai jamais dit a aucune personne que j'attendois une remuneration de Mi- lord Selkirk, ni de la Compagnie de la Baie d'Hud- son. J'ai fait des avances aux gens de Lord Sel- kirk, et de la Baie d'Hudson, de mon propre ar- gent, et j'en ai retir^ depuis le montant, trente- tieuf livres, de Mons. Garden. Je Tai recu dans un seul pajement par une traite sur la banque. Je Tai re^u dans ce mois-ci, entre le dixieme et quinzieme, a ce que je crois. C'^toit avance sur les gages. Je n'ai pas dit, avant d'arriver au por- tage du Jjac la Pluie, que j'avois pris Fort Wil- liam, ni que j^avois pris d^autres forts, et aue je prendrois bien celui-la. Je ne me rappelie pas d Woir dit a la Riviere Rouge, a aucune personne, 3ue je n^etois pas mon maitre, et que mon depart ependoit de Milord Selkirk. II est possibis que lioi je I'ai dit, mais ce n'etoit pas assez frappant poui* m'en rcssouvenir. J'avois un pavilion plants contre ma tente a Lao la Pluie, mais a mon arriv^e je n'a- vois pas de cai.ons. Je n'avois pas de canons mon- ies, qu'apres la declaration faite par De Reinhard. Apres la declaration Mons. Vitchie m'a apporte deux petits canons du portage. Le portage a un mille et demi de distance du Fort Lac la Pluie. C'^toit le cinquieme ou sixieme d'Octobre. J'ai bien expliqti6 a De Reinhard que les hommes qui etoient avec moi, n^etoient pas engages comroe mi- litaires, mais comme colons, pour la Riviere Rouge, et que slls ne vouloientpas prendre des terres a la Riviere Rouge, ils avolent le droit de retourner en Europe par la Baie d' Hudson, ou par Canada, comme ils voudroient. II j avoit une longue con- versation^entre moi, le prisonnier, et Mons. Dease, et j^ai dit au prisonnier apres sa declaration, etc^est tres possible avant la confession, et k Mons. Dease, (parce que la conversation lorsque j'etois dans le fort auparavant eioit gen iral entre les cinq) que je considerois les gens du Nord-Ouestd^avoir commis un grand crime en detruisant la colonic de la Ri- viere, Rouge, et que je considerois ies gens qui a- voient agi en la detruisant egalles a des rebelles, ou meme quails etoient tout-a-fait rebelles, et que ce- la ne pourroit pas passer sans etre puni ; peut-etre aussi qu'en cette meme conversation j'ai dit que Tattendois des renforts de colons pour monter a la iliviere Rouge, s'ils en avoient les mojens. Je n'ai pas dit aue le ^ouvernemcnt alloit y envoycr de grandes (orces.^*') (• » ) Mr. S. — Detain or arrest ? C, D'O. — Not to arrest. I can not say whether Ihc note was to request him to wait for me, or to order hiro to remain for ir.e. I was hurried at the time, but I gave no order either to Mr. No- lin, or to Mr. McDonald* nor to any other person, before I got t« Lake la Pluie, to arrest the prisoner, or detain faioi by force. I 'o;**'! jVtel \m ^m 202 il. :-i ■m wM j,i'i- HI'"'' (: I-''- i Jlfr. Stuart here said, he had fimnished his cross* e:icarmnaiiqn, but begged the Court to keep captain D^Orsonnens in attendance, as he proposed to examine liim on the defence. •> When f gare (hem the note, I told them to induce De jlein- hard to remain there and wait for my arrival. I told them only to induce him to stay, and as I knew the good disposition of the prisoner, I was convinced, that when he saw the proclamation pf Sir John Coape Sherbrooke, and received my note, he would remain. When I was going to talk with De Reinhard at the fort, there were some men who followed. I can not tell the precise number, nor whether they were armed or not. They followed afar off, out of curiosity. I arrived at the fort of Lake la Plqie with two men who were ariQed, and I was armed my- ielf. The others followed a good way off, and I can not say wliAthcr they were armed or not. I have neither received nor A^pected any remuneration from my I^ord Selkirk nor from the Hudson's Bay Company. I never said to any person that I ex- pected a remuneration from my Lord Selkirk, nor from the Hud- son's Bay Company. I advanced money to Lord Selkirk's peo- J>]e, and to those of the Hudson's Bay Company, out of my own unds, and I have since received back the amount, thirty nine pounds, from Mr. Garden. I received it in one payment by a check on the bank. I received it in this month, between the tenth and the fifteenth, as I believe. It was money advanced on account of wages. I did not say before I came to the Por- tage of Lake la Piuie, that I had taken Fort William, nor that I had taken other forts, and that I would also take that one. I do not remember to have said at Red River to any person that I was not my own master, and that my departure depended up- on my Lord Selkirk. It is possible I may have said so, but it was not of that importance for me to remember it. I had a flag lioisled before my tent at Lake la Pluie, but when I arrived there I had no cannon. I had no artillery mounted till after De Reinhard had made his declaration. After the declaratioq Mr, Vitchie brought me two small pieces of artillery from the Por- tage. The Portage is a mile and a half distant from Lake la Piuie. It was the fifth or sixth of October. I fully explained to De Reinhard that the men who were with me were not en- gaged in a military capacity, but as colonists for Red River, and if they declined to take lands at Red River, they had the right of returning to Europe, by way of Hudson's Bay, or of Canada, at their option. A long conversation took place be- tween me, the prisoner, and Mr. Dease, and I said to the pri- soner^ after his declaration, ^nd it is very possible before the 203 LOUIS NOUN, Swam. Jlnd his Examination continued hy the S^fUeitor Gom- ral, Louis JVolin, — Je n'^i pas arrete ni fait prisonr nier de De Reinhard avant $a declaration. Quand j'etois rejoiiidre capitaine D'Orsonn^ns et le pri- 9onnier, ils etoient seq1$, et en dehors du fort. J9 n'ai pa^ cntendu, ayant que De Reinhard a fait sa confession, aucune menace ni aucunc promesse df la part du capitaine D'Orsonnens au prisonnier, ni par aucune autre personne, et je nVi pas fait ni f une ni i^autre moi meme. Quand De Reinhard parloit d^un meurtre qui avoit ete commis a ]a Ri- viere Winnipic, il a notnine la personne assassiinee, Owen Keven J. C*etoit au tems que nous ([^capitaine D'Orsonnens et .moi,) etions dehors nous nous pro- menans devant le fort. II parla alors du meurtre de monsieur Koveny, et je I'ai .entendu dire que, ♦' Mainville avoit tir6 avec un fusil sur monsieur " Keveny, et I'avoit blesse a la gorge, ou au cou, ** et que lui, De Reinhard, I'avoit fini en passant ^^ son sabre, une ou deux fois, au travers de son " corps."— 11 n'a pas fait mention de Pendroit, raai§ que c etoit en has de la Riviere Winnipic. Jc n'aj pas entend.u plus, je mo tenois un pe|i a Tecart, et • ^ - confeBsion, i^4 to Mr. Dease, (for the conversation when I liad been in the fort bjefore was gJBnerai amongst the five,) tliat I considered that the people of the North- West had committed a great crime in destroyins: the Red River colony, and that I con- sidered the people who had been active in destroying it, lib} re- bels* or even that they were in fact rebels, and that that could not P9S3 without punishment ; perhaps also that in the same con- versation I may havil said that I expected reinforcements of co- lonists, to go up to Red River, if they had the means of so do- in^. I did not say (bit gOKerDoient was going to sond a Urge force there. • '1 1- e ■■ ', , : '--s. " ; • i!.. ■ Ik-i - :.:.^*:r- if^fi^^. 1^ .;! ' 1 ■it ■'' ■.^.]:».. ■ '!(■-;: 204 le capitalne D^Orsonnens et De Reinhard sont en- tres dans la maison avant moi, mais jV ai entre ensuite aussi. Le lendemain De Reinhard parla encortt de cette affaire. 11 a parle volontairement du mort de monsieur Keveny. II se promcnoit seul avec moi sur le bord d^un cute ; on se tenoit amicalemcnt sous les bras, et il a parle volontaire* ment du mort de taonsieur Kevenj. — Je ne puis pas dire comment commenca la conversation. Je ne me rappelle si jo Pai demande comment cela s'etoit passe. A ce tems je n'ai fait aucune pro- me^se ni aucune menace, ni je ne disois qu'il seroit mieux pour lui de declarer, ou qu^il seroit puni s'ii ne faisoit pas une declaration, ni aucune ciiose de meme. J ai-dit seulement, ^' que c^etoit bien de " valeur d'avoir fait une telle chose." II m*a dit, ^^ que lorsqu'il etoit au Bas de la Riviere, qui est ^^ Kevenj, mais quails ont refuse, et qu^il a aussi '^ demande la meme chose a lui, mais qu'il a aussi " refus^ de tuer monsieur Kevenj. Qu'apres ce- " la monsieur Kevenj fut cnvoje prisonnier en ^ montant la Riviere Winnipic. Que quelqueg ^' jours apres, il a embarque lui meme avec mon- *' sieur M'Lellan, Grant, Cadotte, et ^^autres per- *^ sonnes, au nombre de dix ou douze, dans un ca- '^ not, et quails ont aussi monte la Riviere Winni- ^' pic. Qu'en arrivant £l un endroit a une petite *^ distance de Tendroit appel^ les Dalles, ils se spnt ** arretes, et apres que lui, De Reinhard, avec '^ Mainville et le fils de Perdrix Blanche, se sont *^ embarques de la dans un petit canot pour aller '' la ou etoit Kevenj, et qu^en allai^t la, c'etoit pour ^^ aller tuer Kevenj, parceque dans ce moment la, ^Mainville s'etoU determine de tuer Kevenj. « ^^ QuMls ont et« a lui, tt ont fait cmbarquer Kevc- ' 205 *' ny dans leur canot, et qu^ayant fait une petite ^^ distance, Keveny a demande a d^barquer ou a *< aller a terra, et quand il £toit pour se rembar- *' quer Mainville a tire nn coup de son fusil sur *^ Keveny, et Ta blesse sur le cou, et que lui, De '' Reinhard, yoyant que Keveny 6toit blesse a mort, '^ a enfonce son sabre, une ou deux fois au travers *^ de son corps ; et il ajouta qu'il Pavdit iini ou a- " cheve ;" les mots ^toient, " et je I'ai fini." II De m^a pas dit ce quails avoient fait du corps, ex- cepts qu'ils Tavoient laisse la sur une petite poitite de pierreou galets. — En 1817, j^ai campe a la dis- tance d^environ un arpent de Tendroit ou De Rein- hard m^avoit dit quails avoient laisse le corps de Keveny. C) (3 3^1 did not arrest, nor make prisoner of De Reinhard, be- fore his declaration. When I went to join captain D*Orsonnens and the prisoner, they were alone, and outside of the fort. I did not hear, before De Reinhard made his confession, any threat or any promise on the part of captain D'Orsonnens to the prisoner, nor on the part of any other person, and I made nei- ther the one nor the. other myself. When De Reinhard spoke of a murder that had been committed at the River Wiunipic, he named the person murdered, Owen Keveny. It was at the time when we,'(captain D'Orsonnens and mj'self) were outside, walking in front of the fort. He then spoke of the murder of Mr. Keveny, and I heard him say that <* Mainville had fired a gun at Mr. Keveny, and had wounded him in the breast or neck, and that he, De Reinhard, had finished him, by passing his sword once or twice thi'ough his body.*' He did not mention the spot, but that it was in the lower part of the River Winnipic. I did not hear any more, I kept a little aloof, and captain D'Or- sonnens and De Reinhard entered the house before me, but I afterwards went in also. On the following day De Reinhard a^ain spoke of this affair. He spoke voluntarily of the dealh of Keveny. He was walking alpne with me on the brow of a hill ; tve were walking arm in arm in a friendly way, and he spoke voluntarily of the death of Mr. Keveny. I can not say how the conversation began. I do not recollect whether I asked him how it happened. At that time I made neither any promise por any threat, neither did I say that it would be better for him to make a dccls^'ation, orthat he would be punished if he dl4 IH ;■ '4 ir I il--ii llltii •-'••- I'v' , f^; tHkfJustke SeUjiU.'^PAoyr itt«, Mr. Solicitor^ tb pot ohe quedtion to him. Par i'information que 06 Reinhard vous a ddnn^e, cotnpreni^z vous FeD* drdit od ]e corps de KeVcny 6toit laisse ? Ltmh JVoiin. — Oui, d^pr^s la declaration de De Rdh^hdfrd j*ai bicn coitfprr?, de ma propre connois- ^ariCe, l^^ndroit oil le metirtr^ avoit ete commis, pjEirCcatie j*avbisr passe la Riviere Winbipic une ou mux ibis auparavaut, ct je me formors, d^apres son mferlS^^tion, une bonne ideie de Pendroit o^ CeFa pbU^dit ^iroir arrit^. II m^a dit qoe c'^tort en haat d^ Dalles, mais il ne m'a pas dit a qne}le distance des Dallas, ni de quel bora de la riviei'e. not make a declaration, nor any thing of the kind, t only said that " it was a serious matter to have dene such a thing." He told me that, " when, he was at Bas de la Riviere, which is a prace in the River Winnipic, he heard Mr. M^Lellan several times ask both Mr. Grant and Cadotte, to kill Mr. Keveny, btit that they refused it, and that he also asked the sstiAe thing of him, but that he toohad'refused to kill Mr. Keveny. That aAer tliis Mr. fCeveny was sent away as a prisoner up the River Win- oipic. That some days after, he himself embairked with Mr. JBrLellan, Grant, Cadotte, and other persons, to the number often or twelve, in a canoe, and that they also ascended the River Winnipic. That on arriving at a place, situated a short drs<- 6mce from the spot called the Dalles, th^y stopped, and after- wards that he, De Reinhard, with Mainville, and the ^n of the White Partridge, had embarked from there in a little canoe, (o go where Keveny was, and that their going there was With the intention of killing Keveny, because at that time, Mainville had come to a determinatft»n to kill Keveny. That they went to Inhere he was, and made Keveny get into their canoe, and ^at, when they had got a (if tie distance, Kevet^y ask^d to land or to'^ on shore, and when be was going to reembark, Main- ville fired his gun at Keveny, and wounded him in the neck, and that he, De ReTiihard, seeing that Keveny was mortally woiirtded, ran his sword once or twice through his body ; and lie added that he had ^iriished, or done for him;** the words w^re, " and I finished him." He did not tell me what ihty did with the body, eicepting that they had left it there on a small stony or rocky point. In 1817, 1 encamped at the distance of about an arpent from the place where, as De Reitihard had told me, they had left Keveby*g body. ■I ■■« I 207 Solicitor General — Arez vous parl6 atfed lei^ JSauvages de cet endroit ?(") • Mr, Stuart. — I object to that, it is not evidence, no conversation with a third person in the absence of the prisoner can be made Evidence. Solicitor GeneraL^-^l was not about to ask him as to a conversation with any particular Indian. I m^ant to ask him whc^ther, according to general repute, this was not the spot where Kevehy wai killed, and we are then goihg on to sheW that at this very spot the remains of a body wete found, which I should consider circumstances proper ta go t6 the jury. Chief Justice Sewelt. — You certainly may ^i^k him on which side of the river the remains of .a human body were fouud, because it is in evi^ dence that it was on the south bank of the riv6r^ that the death took place, but upon the vague tes- timony of a parcel of wandenng Savaged, it li hardly worth while to hare an £utercation about general repute, for what can it possibly amoi/ht to ? what dependence can be placed upon testi-* iftony so extremely loose, that I consider it would really be a waste of time to us.all to attempt td go into it? Solicitor General. — I subcnit to your honodt-'k decision, as I always will, and as on all occasions («3) C. S.S. — By the information which De Reinbard gave you, could you make out thcr place where the body of Keveny had been lefV. L. A".— Yes, by De R^ihhard^s dcclafation I could Well nakeout, from my own knowledge, the spot Where the murder had been committed, because I had passed through the River Winnipic ohce or twice before, and, in pursuance of his infor- mation, I could form a good idea of the spot where it most have happened. He told me that it was above the Dalles, bat he did not say at What distance from the Dalles, nor on which side ,ff the river. S. G.—Did you spMk t^^ilh the Indiaas about that plae^ ? ' ^•■■,i ''■.'A :iC3 "'i[^ 'V^' :' i J lir^ ^ -t 208 it is mj duty to do, but the auestion I proposed to put to the witness was merely desij^ned to lead to an enquiry that I consider will exhibit a strong corroborative circumstance, namely, that at the spot where, according to general repute, Keveny met his death, and was, according to the prisoner a confession, left, the bones of a human being were found. — I shall proceed to examine the witnesi relative to the bones. VH/n SituxrL-^l beg to contend that the evidence wished to be produced by Mr. Solicitor General is totally inadmissible, as I shall shew to the Court that it is that sort of evidence which may preju- dice, but can not enlighten, those who are ulti- mately to decide the point at issue between the Crown and the prisoner at the bar. What can the Crown officers expect to prove by, as it was correctly designated by your honour, this vague testimony. The finding of some bones, when the aide of the river is not proved, when it is not known where the alleged death took place, ex- cept tliat it was in a country where accidents of one kind and another are daily producing cata- strophes which lead to it, and which of itself is a strong reason against receiving such equivocal evi- dence. Numerous must be the remains of \m* man bodies found in an uncivilized, wild, and boundless country, on the borders of rivers, which, it can be proved, have been navigated for upwards of a hundred years, rivers which, from their ra- pids, expese Lj voyagers to those hazards which must frequently be attended with the sacrifice of their Jives. Till evidence is offered that these are positively the remains of Keveny, which I im- agine, with all the ingenuity which my learned friends possess, they will not be able to do, I should nope that your honours will not suffer them to go into evidence, which, I repeat, U only sat •alcuUted U prejudice without enlightening, and therefore, in my humble opinion, ought to h% most scrupulouslj kept from the jury. Solicitor Gtneral,'--i think we have shewn quite aufficient to entitle us to go into this evidnisce, which is certainly corroborative of the confession already in evidence before the jur^r, and if thii should, (as I expect it will,) be decided by your honours, to be admissible evidence to go to the ju- ry, I have no doubt that there will pe then but one opinion of the weight, as secondary testimo* ny, which it ou^ht to have in the unavoidable ah* aence of that primary evidence, which I admit it iff always desirable to produce, but which some- times, as in this case, it is impossible to produce* We have exhibited a confession from the prisoner^ when, conscience-struck, his remorse was such that he became a self^accuser, a circumstance of itself strong enough to warrant the conviction of the prisoner. The confession being admissible evidence, there can, I imagine, be little difficulty hi declaring that any thing having a tendency to corroborate that confession, must also be admissi- ble. The question then is, does the fact of find- ing the bones o( a human being at the spot where the prisoner stated that after killing Keveny, he was left by those who committed the murder, and which common repute fixed as his burial place, the fact being proved, what weight it ought to liave is wiih the jury : I contend it is admissible evidence, and I repeat that I believe there will be but one opinion what weight it ought to have. Mr, Vanfekon,"^l\ me semble que les officien lie la Couronne auroient du prouver que monsieu^ Keveny est veritablement mort, avant qu^'ls par- lent des OS. La premiere question au temoin doit ^tre, ^^ avie2 vous tionnoissatice de monsieur Ke- veny ?** aavez-vous qu'il est mort ? Si le temoiD i . .11. m ^-^w'-w^ ! ";> ) i ' t ■■•'.'■ il 210 repond <)iroui ; done, si on pcut, qii'on prouve que ce cori)8 est absolumcnt le corps dc Keveny^ car la confession n^cst pas sufFisantc, ct jc produis Pau- torite d^unjuge Ic plus savant ct humain,.lejugc Hale, en confirmation dc cctte maximc ('*) 1 nave often known says that venerable and benevolent judge, (I am now quoting from MacNally, chapter 6, rule 8, page 41, who refers to Hale P. C. 284,) ** I have often known the prisoner disown his con- fession upon his examination before the justice, and be sofnetimes acquitted against such nis con- fession." II y a un ras qui est tout-a-falt en point; dans I'esperance de grace, une confession avoit etc faite d'un meurtre, et sur icelle les personnes accu- sees furent. malheureusement ex^cufees ; pendant que quelques ans apres, riiommc se tronvoit en vie. Mon savant confrere, monsieur le Solliciteur Gene- ral dit, que les sauvages ont dit au temoin qu^ici Keveny avoit et^ enlerre. Ensuite, je soumets que les sauvages aurolcnt ete la meillcure evidence, ct, pour (iette raison, qua Tevidence secondaire ne pouvoit pas etrc admise, «ans que les officiers de la Cburonnc fiiisoicnt voir que les sauvages ne sent pas sous la jurisdiction de cctte cour.(^*) :.-ir (3<) It appears to me that the officers of the Crown ought to have proved that Mr. Keveny is really dead, before they talk of his hones. The first question to the witness otight to be, " had you any knowledge of Mr. Keveny ? do you know whe- ther he is dead ?" if the witness answers yes, then, if you can, prove lh.it this body is in fact the body of Keveny, for the con- fession is not sufficient, and I produce the authority of one of the most learned and humane of our judges, judge Hale, in cod- firmation of this maxim. (*') There is a case which is exactly in point. In the hope of pardon a confession had been made of a murder, and upon this the persons accused were unfortunately executed, whilst, ^otne years affervvardt, the man was found to be alive. My learned brother, Mr. Solicitor General says, that the Indians told the witness, that here Keveny bad b&en buried; tbere* "♦'Si.ffi '*f 2ii Chief Jusiic Sett>e//.--Evcry case of law musl Necessarily turn upon its own peculiar circumstan- ces, that is to say, on those peculiarities which are more or less • presented in every case which occupies the attention of the Crown, for example, a murder having heen committed in a populous city, like London for instance, it would certainly be a very su!?picious circumstance if positive testi- mony of the death was not produced. When I speak of positive testimony of the deAth, I meail that positive evidence which results from thd body having been seen and recognised, subse- quent to the death, but in a forest remote and ex- tensive like this, we can not have, and ought not to expect, that exactitude of proof. It is totally impossible that it should be produced, and ap- pears to me unreasonable that it should be ex- pected ; thus situated, we are compelled to resort to secondary evidence, and abandon the primary. The rule undoubtedly is, that the secondary evi- dence shall not be admitted, if it can be fairly in^^ fcrred that better might have been produced. What are the circumstances under which thii question presents itself to us at this moment ? herd is a man left for dead at a spot, described in the prisoner's confession, and by some of the wander- mg Savages of that immense territory. There is no probability shewn, on the part of the defence, that they were known to the officers of the Crown^ or that, by any exertion made by them, these Savages could have been found. What fact is it the Crown wishes to prove by this secondary evi- dence, under circumstances so peculiar, that, as : {'\ i 'fi ( it! fore, I submit, that those Indians would be the best evidence, and for that reason, that secondary evidence coul|d not be ad- tnitted until the officers of the Crovvn made it appear that tbe»ci Jndiani are not within the jurisdiction of this Court. ^ '.ifiA-ii'Xi ■II n i»iiy ',V ^4- /^,.J ::'(6« s •■ • 1 '.lilt i' ■ 'J''''' 212 thej s^Ji the J ^re incapable, and that without a- nj Idchea on their pvt» of proving by that prima- ry testimony which, we all agree, it is extremely oeairable snould be adduced m cases of murder ? it wishes to add to three separate confessions, (that IS) if true,) this additional circumstance, that 01^ the spot where the death is said to have taken place, this witness found a body. We have in evidence, first, his declaration to La Pointe im- mediately after the supposed commission of the crime ; secondly, to captain D^Orsonnen^, as de- tailed so particularly in his evidence, and a third conftssion to this witness, on the day following th^t on which he had made his declaration to cap- tain P^Or^nnens, a confession made in these re- Q^arl^able words, *^je Vaifini,^'' After three sepa- rate confessions, to three different persons, he at last points out the spot where he says the body was left By this witness it is wished to identify thstt at a place, which, at the time De Reinhard described where the body was deposited, the wit- ness, supposed to be the spot, he subsequently ex- ^o^jned, and found there a dead body, tf tlie body $Q fpundcan be proved to be of the size of Keveny, qr that there are ajuy other circumatances leading tp a belief that it was the r^^nains of Keveny, they ipay, at the back of these several confessions, per- happ b)B considered as strengthening the <;ase. I( bow^vpr, the Crown only wish to prove the find- ing of a body by the side of the River Winnipic, it will probably not go for much. From the evi- d^ce offered by the Crown officers, if the juiy infer that Keveny is dead, it does not necessarily ibllow that the prisoner at the bar killed him, the evidence, at the utmost, can go /or nothing more tfian that, it may lead the jury to infer that Keve- Tj^j is dead. I cannot see tnat apy I^gal o2;jec- tjon can be made to (he ijuestion proposed by ths 213 Solicitor General. Here is a fact that a body Wat foand ; what additional circumstances^ connected with the finding, may be in their possession, it is not for us to anticipate, but the present is, I think, a fair question, and my learned . brother agrees with me in opinion. ExctAmoHm reMmed bjf tht Sotieiior General Louii NoUn^ — Je savois^ quand nous 6tions cam- pes la, que c'etoit a pen pres Pindroit, mais je ne savois pas alors qUe c^toit si pres, et Pendroit s^ac- cordoit avee la description que le prisonnier m^en a donn^e. C'^toit une pointe avec des pierres ou galets, avec de tres grosses roches, mais la plus grande partie ^toit un galet. C'etoit a main gauche* en montant la riviere W innipic vers le Lac la Pluie,' et a main droite en descendant au Lac Winnipic. Des sauvages venoient a notre encampement, et ie les ai demand^ oil t toient les os de Keveny ; ils m'ont dit que c^^toit hien pres, et m*ont mene a une pointe de pierres, oil j'ai trouv6 les os d'un homme, k ma croyance. Les os que j^ai vus ^toient dans un tas, et couverts de branches et de feuilles, que les sauvages ont eleve, et fai vu des o^ comm6 les OS des bras et des jambes d'un homme. Je ne les ai pas remu^s, les os, mais en autant que je m^ connois, ils ^toient les os d^un homme. J'ai vu une partie de la tete. Je ne puis pas donner des details sMls etoient les os d'un grand homme. 11 y avoit aussi une petite croix de bois, mise par les sauvages pour marquer que le corps d'un blanc 6toitll('») (**^ I knew, li^b«n we wer6 tfbcatnped there, that it waft near the spot, btit I did not know, th^n that it was so near as it proved, and the spot agreed with the description Which the pri- ioner had given to me of it. It was a point of land with stones, tr smooth rocks, with verjr Urge stools, bat the greatest part J'- !«'« SI: r'-m- mm b.S. '\ ;' ' ■ -i I' , ■* 214 Attorney-General, — Does not yotir honour think that we might now be permitted to go into evi- dence, and shew, that, according to general re- port, these were the bones of Keveny. I humbly conceive that any thing that is matter of general repute we might shew, and that 4( is admissible evidence to go to the jury. Chiefs Justice SewelL — I think not, Mr. Attorney- General ; the fact you have, and it shall go to the jury undoubtedly, that there were bones found at the spot where the prisoner in his confessions, stat- ed they had left the body. The jury, having these facts before them, will make what inferences from them they think proper, but, beyond this I do not think you either ought to be permitted, or is there occasion fo^ you, to go. Mr, Justice Bowen, — You certainly have now as strong a case as possible, I can not see for what you wish to go any farther. Chief Justice SewelL — Such a case certainly as Clever came before a Court to my knowledge. The Court adjourned for half an hour, Mr, JVb- lins word being taken that, in the interval, he pould not communicate with any one on the subject of this trial. The Court having re-assembled, the jury were was a smooth rock. It nras on the left hand going up the River Winuipic towards Lake la Pluie, and on the right hand descend- ing the riv.er to Lake Winnipic. Some Indians came to our encampment, and 1 asked them where the bones 6f Keven/ were ; they told me that it was vtry near, and they took me to a stony point, where I found the bones of a man, according to my belief. The bones which I saw were in a heap, and covered with branches and leaves which the Indians had heap- ed up, and I saw bones like the arm and leg-bones of a man. I did not move them, the bones, but to the best of my know- ledge they were the bones of a man. I saw part of the skull. I can not give any details whether they were the bones of a tall man. There was also a small wooden cross, placed there bjr 4jie lodiaos, to denote that the bod^ ojf ft white man was there. 215 tailed and being present Mr, JVolin was again called and cross examined by Mr, Vayifekon. . ' ' '• ' ' ■ Louis JSoUn, — En 1816, j'etois au fort du Lac la Pluie, au commencement du mois d'Octobre, avec monsieur M 'Donald, avant I'arrivee de capi- taine D'Orsonnen9. J'ai quitte le capitaine D'Or- sonnens avec M'Donald a la distance de vinfi;t-cinq ou trente lieues avant d'arriver au fort du Lac la Pluie. J'ai re^u un billet de capitaine D'Orson- nens adresse a Charles De Rcinhard, le prisonnier a la barre. Je ne sais pas s'il etoit cachete ou non, et je ii''en ai pas examine le contenu. Capitaine D'Orsonnens ne m'a pas donne des ordres, si De Reinhard ne vouloit pas attendre, de I'arreter, ou le detenir par force; if m'a dit seulement de I'induire a rester au fort jusqu'a son arrivee. II y avoitdans le canot avec moi et M'Donald cinq autrcs, dont trois etoicnt armes de fusils Americains, mais non pas les autres. Les fusils Americains sont de plus ros calibre que les fusils de chasse ou de traite. • ^dtoit monsieur M'Donald qui a livre la Icttre ou billet de capitaine D'Orsonnens a De Reinhard, au fort du Lac la Pluie, et j'etois avec lui. Je suis entre au fort, accompagne de monsieur M'Donald seulement, ajant laisse nos hommes a une certainc distance ou nous avions couche. — Je n'ai vu dans le fort, et a I'entour, que sept ou huit, peut-etre neuf, hommes. Le tout que j'ai vu dedans le fort, a ce que j'ai entendu dire, ctoient, im nomme Sayer, De Reinhard, et deux autres ; Roussin en etoit un, mais je ne sais pas que I'autre etoit nomme Chre- tien. Je suis arrive au matin, et capitaine D'Or- sonnens arriva, comme je crois, I'apres midi du meme jour. II arriva au fort seul, avec monsieur Dease. J'ai ete avec De Reinhard, Sayer, et Rous- sin au dcvant de lui. J'etois alors au service de la Compagnic de la Baie d'Hudson, et M'Donald 1. " ) k»^^^ #• ■•■; •.:' t: I'l ■■' m :i\- ,; -^^ b>i^r:- '# tie ftUtSI a toujo i. Ja ne 6618 pas si te capitftind D^rsonneni »ujour8 dit qu^l n^^toit pas au service de ta Compagnke d'Hudsoo's Baie, ni de Milord Selkirk^ et je crois qu'il etoit 1& peur voir le paysf eomme compagnon de Miiord Selkirk^ et que ion id6e k*' toit d'aller au Lac Sup^rieur seulement. Je erdii qu'il portoit son sabre 8ur lui. U ti*avoit pas d*u«> niforme, c'etoit un surtout gris "^u^il portoit | ud vieux surtout gris militaire. Capitaine D'Ofson* nens arriva au fort 8eul« tnais nous pouvions voir du fort les personnes qui sont venues avec lui. Hi ^toient campus a quelque distance^ mais dtt les a tu du fort. Monsieur Stiver et:indi ont parl^ en presence de De Reinhard des difficult^ enfre les compagnies, et de Farriv^e d^un canot appartenant & la GoDipagnie de la B&ie d^Hudson. Je me sCu* tiens d'avoir entendu De Reinhard dire, avant Par- riv^e du capitaine D^Orsonnens, *' qu^il 6teit bien *^ fllch^ que Milord Selkirk avoit pris le Fort Wil* *^ liam, parceque son equipement y 6toit." Je me souviens qu^a Tarriv^e du capitaine DX)fsonnens, qu'il parloit, mais je ne puis pas dire k ce moment ce qu il a dit ; mais je me rappelle qu^il a dit que plusieurs messieurs du Nord-Ouest avoient kt^ pris et envoj^s a Montreal, pour soufirir leur proces, mais je ne me rappelle pss qu'il a par]6 de trahi- son, ou de rebelles, ni si c^6toit avant eu apres Is conversation tenue par De Reinhard aveC le capi- taine D^Orsonnens aont j*ai parl6 auparavant, par^ Cequ^au tems je parlois avec Sayer. Je n^ai jamais connu Keveny, et je n'avois jamais entendu parlsr de lui avant ce tems Id. II est assez frequent d^enterrer les voyageurs le long du chemin. II V a plusieurs tombes sur les rives de la Riviere liVinnipic, marquees par des croix pour indiquer des tombes de blancs. L& oxk j^ai vu les os, je n'ai vu que cette Seule croix. Il n^y a point de didtei l&i et ellek sont ordinairement la ou il y 117 a ctos r&pidM bu chi!kt«s. J« ti*id Jinaii tnten- du parbr que qu>\/ ■■ V:: qiAt 218 /» answer to a qtiestion from Mf* Justice Bowen,-^ Les Saiivages enterrent ordiuaiirement leiirs morts bien en avant dans la terre, a cinq ou six pieds.— ^2nd then continued, J'avois passe deux lois dans Ja Riviere Winnipic, deux fois auparavant que la declaration de De Reinhard fut faite.(^') JACOB VITCHIE, Sworn. Examined by the Attomey-GencraL Jacob F«/c/«c.— J'ai ete aux territoires Sauvages. Je connois lie prisonnier a la barre, et je connois le capitaine D'Orsonnens. Je n^ctois pas present a la conversation entre le capitaine D'Orsonnens et and I talked in De Reinbard^s presence, of the differences be- tween ihe companies, andoftiie arrival of a canoe belonging to the Hudson's Company. I recollect having heard De Reinhard say, before the arrival of captain D'Orsonnens, " that he was sorrj Mylord Seikirli?, had taken Fort William, because bis 'equipment was there." I remember that, when captain D'Orson- nens arrived, he saijJ some thing, but I can not at this moment say, what he talked of, except that he said that several gentlemen of the Nort^-VVest had been taken and sent to Montreal to undergo their trials, but I do not recollect that he spoke of treason, orof rebels, nor whether it was before or after the conversation with De Reinhard held with captain D'Orsonnens which I mention- ed before, because at the time I was conversing with Sajer. i I never knew Keveny, and I never heard him mentioned be- fore that time. It is very common to bury voyageurs along the road. There are several graves on the banks of the River Win- nipic, di.stirjguished by crosses, to indicate that they are the graves of whites. Where I saw the bones, 1 saw only that sin- gle cross. There are no falls there, and they are generally in places where there are rapids or falls, I never heard talk of a- ny one who had perished there, and as there are no rapids, it k not a dartgerous place. The body was not interred because thf^re was no soil there, it was only covered with branches and leaves^ in the Indian fashion. (2«) The Indians generally bury their dead very deep in the ground, five or six feet.— I had passed twice through the rivor Winnipic, twice belbre Dc Rcinbard's declaration was made. 219 le prisonnier. Je suis arrive au portage du Lac la Pluie trois jours apres le capitaine D^Orsonnens. Le prisonnier m'a parie au portage du Lac la'PIuie, et le capitaine D'Orsonnens etoit la. Lors de mon arriv^e, De Rcinhard m'a dit qu'il ctoit prisonnier Eour la mort de Keveny. C'etoit le meme jour. le soir je Pai entendu moi-meme dire a no8 hom- mes, les hommcs de notre brigade, qu'il avoit con- noissance de la mort de Keveny, et il a raconte comment cela s'est passe; qu'il a regu ordre de monsieur Archibald jVl'Lellan de tuer Keveny.("*) Chief Justice Sewell. — I do not think, Mr. Attor- ney-Genera!, that this evidence will do. U is im- possible that this witness can say, that amongst this mass of people no promise, or menace, or un- due influence, had been used. Attorney-QeneraL — ^^1 should conceive I am enti- tled to prove his general confession. I should sup- pose it would not be objected to. It is sufHcient for me that the witness made him no promise, or used undue influence. Chief Juslite Sewell. — Upr'oubtedly if you go to any particular conversation held between a wit- ness and a prisoner, it w.^^uld be all that could bo required. But I can not allow a witness to go in- to evidence of a general statement inculpating the prisoner, made before such a number of people (a») I have been in llie Indian territories. I know the pri- soner at the bar, and 1 know captain D'Orsonnens. I was not present at the conversation between captain D'Orsonnens and the prisoner. I arrived at the pojiage of Lake la Piuie thr«e days aAer captain D^Oriioiinens. Tlie prisoner spoke to me at the portage of Lake la Piuie, and captain D'Orsonnens! was there. At (he time of my arrival De Hiunhard told me that he fvas a prisQner on account of t lie death of Keveny. It was the same day. In the evening I heard him myself say to our men, the men of our brigade, that he knew of the death of Keveny, and he related how that event had taken place ; that he had re< ceived orders from Me Arct^ibald M'Lellan to kill Keveny. P ''^^■- 'Vi 1 "B :r ■• :} 2ie V that it h quite impossible the necessary prelimin^- rj questions can be answered. Examination continued by tht •Attorney-General, "I if: fi-J ^ I i."'. ' r, :! > '-ii' :. A ■4 . •'>',,. ■' >;i" 4/fcrr. ^;t/ar/. — I rise to object to this testimony being gone into ; it is in evidence that he was a prisoner at the time of the conversation) and con* sequently not in a situation to make any thing he might say evidence against himself. Chief Justice SeweiL — Surely you do not offer that as an objection. Is not every man a prisoner in the hands of the law, that he may be Drought to justice, and if, as is generally the case With confessions, he then confesses, is it- to be urj^ed against receiving his confession, that at the time of making it, he was in a situation to be brought to justice : most assuredly not. Mr, Stuart, — This was an illegal imprisonment, a state of duress, from which he had no right to expect any law, but the will of those who thus rmprisoneci him ; a very different situation certain- ly to that of a confession made in the police office below. De Reinhard etoit prisonnier, n*est-il pas ? /. Vitchie, — II n'^toit pas aux arrets. Attorney-General, — II n^etoit pas aux arrets. Mangeoit-t-il avec vous, et couchoit-il ? J.Vitckie, — Oui, il mangeoit et couchoit aveo moi : il alloit et revenoit. Mr, Stuart, — Parfaitement libre, comme vout tt les autres ? /. Vitchie, — II alloit et revenoit comme les aU" (**> The next day I had a particular conrersatioti with him ■ajitu. He teM me tbtt he had been ioitigated by Mr. Arcby— 2U tres. Mm csmitaine D^Orsonncns nou» disoit da Burveiller De ReiDhard, quUl ue so sauvoit |;>aii. Chief Justice Sewelf.~^ous\enr Vitchie) avez^ vous mi aucune promesse, ou aucune menace^ pour rinduire a faire Us declarations que yous al<* tez nous racooter ? J, Vitckie, — Non, monsieur, ;oint de tout, l^ prisonnier et moi nous dtions acfj^aravant du meme regiment, et nous nous promenions ensemblet et jerai demande comment cela s^etpit passq, par- lant de la mort de Keveny/'*) Jiir, Stuart, — Am I to unaerstand that the Cour^ decide that a confession of murder made under a state of illegal duress is a good confession, and proper evidence to go the jury. dkief Justice Sewell. — No, Mr. Stuart, not a con- fession made under illegal duress, it was perfectly legal. A man, confessmg that he had committed a murder, can not be illegally confined. Any of the king's subjects have a right, nay are bound* to secure him, so that he may be brought to jus- tice. . What objection can you offer to such ior dubitably good evidence being received ? jilr. Stuart — I only wish the decision of thft Court, I do not wish to. argue the point. ('>) Jl#r. S. — ^De R^iohard was a prisoner, was he not ? /. V. — He wai not under arrest. A. O. — He was not under arrest. Did he take bis mealfl wrth you, and' sleep ? J. F.-^Yes, he took bis meals, and slept with m« ; he went and came. Mr. S. — ^Perfectly at liberty, like you and the others ? J. V. — He went and came like the others, but captain P^Or^ sonnenfr told us to watch De Reinhard that be might not escape^ C. J. S. — Mr. Vitcbie, did you make any promise, or any threat to induce him to make the declarations which you are going to relate to us. J. F, — No Sir, not any ; the prisoner and I belonged former- ly to the same regiment, and we were walking together, and I asked him how it had happened, speaking of the death of Kevsoy. ii it ♦ ■r' \ ■ ,. » '.vf h ♦"v r m ''■<'! '$■ f I". 1^^ '■..% lilc iMf. - i> !""i Ji Si. /?tfii/.— That 19 not cTidence, what the guide told him. Attoffiij/'Oenetal — ^We do not waot it, I have doQO with this witoet 8« Crau MamiMadom tanduehd by Mr. VoUUm th Si. BduL J. Ft/d^9i— J'ai TU plusieuri croix lur la Riviere WinnipiCf mais non pas ici. Sur la riviere ib sont de distaoce en distance^ mais non pat ici^ et dam De Reinhard m'a dit que le canitaine D'Orsonneof lui avoit envoys un bijlet qu'ii avoit re9u, mais il ne mVn a pas dit le contenu. II m*a dit quil etoit prisonnier quand ie Tai premierement vu seul, au 2portaffe du Lac la Pluie« mais il ne m^a pas dit uanail avoit M pris. Le capitaine D'Orsonneni toit consid^r^ comme le chef, et il commandoit notre brigade. Capitaine D'Orsonnens m^a dit 3u'il se proposoit a'aller en Suisse par la Baie ^Hudson. II conduisoit les gens qui vouloient dei terres a la Riviere Rouge. II m^a dit qu'il voja* geoit par curiosit64ieulement, il ne m*a pas dit qu*il avoit le nom de chef. Tout le monde ^toit au service du Milord Selkirk, et le capitaine D'Or* aonqens les commandoit. Le prisonnier, le troi* iieme ou quatrieme jour apres que je Fai vu au portage du Lac la Pluie, ma dit *'qu*il seroit re* ^ 9U temoin du Roi ; qu'il avoit tout avou^ au ca- ^ pitaine D'Orsonnens, et ^ull alloit faire autant ^ a Milord Selkirk, esp^rant d^^tre re9u temoin *^ du Roi; mais il ne m*a pas dit qu*il a eu aucune 223 iij, muis je ne me rappelle pas ^u*il m*a dit ei quel ondroit il Tavoit rccu. Do Rcinhard mangeoit toujours avcc nous, ot lo capitaine D^Orsonnens. On parloit douvcnt a tablo des messieurs du Nord- Oucst. La conversation ordinaire de capitaine D^Orsonncns ct les autrcs, ^toit que leur commerce etoit ruin6, et que les eeiis alloient £tre envoy^s prisonniers a Montreal, pour faire leur proces. Je ne sais pas si cela fut avant ou apres la decla- ration que Do Rcinhard m^a fait. Je ne me sou- Yiens pas. Chief Justice SeweiL — A-t-il £t6 dit en presence de Rcinhard.^ J, Viichie, — Oui. Je me souviens qu*on-disoit 9a eh presence du prisonnier. Le prisonni'ir etoit connu comme commis du Nord Quest dans (c tems. De Reinhard savoit bien que le Fort Wtlliam avoit etc pris par Milord Selkirk au terns que noi\i sommes arrives au Lac la Pluie. On rre ^ paa oblige de passer par Fort William poUi uller a Montreal du Lac la Pluie, mais c'es', U route o; dinaire ; on peut passer par le Fond du Lac, sana passer par le Fort William. Entre le Fort Wil- liam ct le portage du Lac la Pluie, il y a deux cents lieues, a ce que je crois, et il y a beaucoup de ra- endroits, et pourroit bien s'ecarter. Jq connois le nomm6 Heurter, qui 6toit e'ors engag6 du Nord- Ouest On supposoit qu^il eio'ia la Riviere Rouge. Le capitaine D^Orsonnens a dit, devant De Rem- hard, que c^ctoit dommage qu'un brave hommii comme Heurter se trouvoit avec des rebelles, et qu'il falloit tSlcher de le ramener. Je ne sais pas 81 le capitaine D'Orsonnens a donn6 des ordres a De Reinhard d'ecrire une lettre a Heurter, mais j« sais que De Reinhard a 6cnt a ce nomme Heurter^ \ (' 226 Mi ■■!.#! ',1 rnajs je ne puis pas dire par ordre dc qui. Capitaine JD^Orsonnens m^a ditd^ecrire en bas de la lettre de De Reinhard pour faire savoir que j'ctois la, et pour qu'il vcnoit a nous, aussitut que nous nous serions ren^us a la Riviere Rouge. (") (>•) /. y, — 1 saw several crosses on the River Winnipic^ but not here. On the river thej occur from distance to di- stance, but not here, and in the place which is called above the bailee, I saw but one. I can not say at what distance either above or below the Dalles that I saw other crosses. De Rein- hard told me that captain D^Orsonnens had sent a note to him« which he had received, but he did not toll mc wh»t the contents were. He told nie that he was a prisoner when I first saw him by himself at the portage of Lake la Pluie, but he did not say when he had been taken. Captain D*Orsonnens v;as consider- ed as (be chief, and he commanded our brigade. Captain D'Or- sonnens told me that be intended to go to Switzerland by the way of Hudson's Bay. He conducted the people who wanted to have lands at Red River. He told me that he travelled out of curiosity alone, he did not tell me that he had the title of chief. Every body was in the service of my Lord Selkiric, and captain D^Orsonnens commanded them. The prisoner, on the third or fourth day after I saw him at the portage of Lake la Pluie, told me that, *' he believed he should be received as king's evidence ; that he had confessed the whole to captain D'Orsonnens, and that he was going to do (he same to my Lord Selkirk, hoping to be received as king's evidence, but he did not tell me that he had bad any conversation with captain D*Or- f>onnens relative to such expectation.^ De Reinhard told me that he had received orders to kill Keveny, or cause him to be killed, but I do not recollect that he told me where he had re- ceived such orders. De Reinhard always took his meals with U9 and captain D'Orsonnens. At tabic the gentlemen of the North- West wrre frpqncntly spoken of. The usual conversation of captain D'Orsonnens and the others, was that their trade was ruined, and that their people were going to be sent prisoners to Montreal to tuke their trials. I do not know if this was before or after the declaration which De Reinhard made to me ; 1 do not recollect. C. J. S. — Was this said in the presence of De Reinhard ? J. V. — Yes, I remember that it was said in the presence of the prismer The prisoner was known to be a North- West clerk at the time. De Reinhard knew very well that Fort William h.id been taken by my Lord Selkirk, at the time when we arrived at I^ke la Pluie. One is not forced to pass by Fort WiliiaiD in going from Montieal to Lake la Pluie, but it is the l'^:f|.:|.f|| ipic, jdi- j the ilher lein- him, )tent» V him at say isider- D'Or- by the vanted ed out title of rk, and on the Lake la lived as captain ly Lord be did n D'Or- toU\ me m tobe had re* viWh U9 ! "Nortb- sation of ade wai Boners to 5S before ne ; I do hard? cscnce of .rth-West Ihal Fort line when u by Fort il it is the 227 Chief Ji*siice Setcell.-^Whsii is tliis testimonj to tend to? I do not &ee that it can have any bear-^ ing upon this cause. Mr. Failure de St. Rial — I intend to prove that the same conduct which was pursued with respect to Heurter, was also adopted to other persons^ and that a part of the system by which the com- mercial rivals of the private prosecutor were at- tacked^ was by s^^jucing their servants, and that the witness, captain D'OrsonnenS) was a principal agent in so doing. Attorney 'Gentrcd.^-A shall most certainly object to the course proposed to be pursued by the learn- ed gentlemen, and for a very obvious reason, name* ly, that it can not be evidence. Admitting for a moment, what 1 by no means allow to be realfy the case, but admitting for a moment, that he sue* ceeded in proving that captain D^Orsonnens was a man calculated to deduce the servants of what the learned gentleman, very ingeniously, as answering his own purpose, calls a commercial rivalry, what would it amount to, were the fact proved r How would it rebut ja charge of murder, how set aside ■^*»- Msual route ; one may %o by Fond du Lac, without passing bjr Vort William. The distance between Fort William and th« portage of Lake la Pluie is, I believe, two hundred leagues^ and there are many rapids between (be two places. A strang- er, who had never been hat way, or had only gone that way once, would find it very dt 230 m m • ,'f 'if! I -! iif.UiJ pi*. 1*1 !.• I 1^1 -i^ cipals. It is, in my bumble opinion, extremely important ; they are facts ; what weight they may have on the jury I know not, but, to my mindf they are facts completely at variance with the tes- timony of captain D'Orsonnens, who most expli- citly asserted that he was in that country a simple individual, no way connected with the Earl of Sel- kirk, or either of the rival companiesr, but in fact a private gentleman, travelling n^erely for amuse- ment. As evidence affecting, the credibility of captain D'Orsonnens^s testimoiny, I can not but consider that we are fully entitled to pursue the course adopted by my learned friend. Chief Justice SewelL^^Ta a certain extent, you certainly may pursue it, but not into a history of all the circumstances of this unfortunate business. You may ask him, did Captain D^Orsonnen& give orders to De Reinhard to write to Heurter ? I will put that question tc him. The interrogatory being put in French, J, Vitchie."Je ne sais pas si le capitaine D'Orson- nens a donne ordre d'ecrire a Heurter, mais il m'a dit d'ecrire au has de la lettre de De Reinhard,pour venir a nous, et se rendre a la Riviere Rouge, (j**) Cross examination resumed by Mr, Valii^re de St, Rial. J, Ft/cAie.— J'ctois a Fort William lors de la prise, le treizieme d'Aout, 1816. C'^toit avant ce tems-la dans la possession de la socictc du . Nord-Ouest.(") (34^ I do dot knovr whether ca|)tain D'Orsonneiis gave orders for writing to Heurter, but he told me to write at the bottom uf De Reinhaad's letter, to come to us, and to be at Red River. (3') I was at Fort William at the time of the capture, on the thirteenth of August 1816. Before that time it tras in the pos- aesiioo of the North-West Company. 231 QMestion by a Jwryn\an» — Quel grade aviez vous i* /. Viickie» — J^etois commis au service du Milord Selkirk. Le fort a 6te pris par force, parcequ^on nous avoit jett^ dehors avec notre warranty et tout. II V avoit un homme avec un bugle, et quelqucs uns armes de fusils et de bajouettes. Quelques uns avoient des habits rouges, etant soldats der- nierement d^chargcs. Je pense bien que De Reinhard savoit que Fort William avoit ete pris, mais je ne sais pas sMl avoit connoissance de la maniere dont il avoit ^t6 pris. Dans les conver- sations de nos hommes, on parloit souvent de la maniere devant De Reinharcf, mais je ne puis pas dire, poUr le certain, si e'etbit avant ou apres la declaration qu^il m^a fait. Mr, ValUhre de St Rial — Vous I'avez dit qu'il a ete pris par force-*— —('•) Chief Justice SewelL — You have not yet brought it home that these conversations took place before the declaration. Besides, it is no matter to this case how it was taken. You have it in evidence that, to the prisoner's knowledge, the fort was in the possession of the Earl of Selkirk, how it came to be so id o^f no consequence to the case. Mr, ValHkre de St /^^oA—- With great deference to the Court, I can not see why we should be al- lowed to pfove a fact in the gross^ and then pro- s: ''•) Juryman. — What rank did you hold ? 'r. V--\ was a clerk in Ihe service of my Lord Selkirk. The fort was taken by force, because We were' ■ turned out with our warrant and all. There Wa9 one man with a bugle, and some who were armed with musquets and bayonets. Some had red coats, being soldiers lately discharged. I believe that De Rein- hard knew that Fort William had been taken, but I do not know whether he Was acquainted with the manner in which it was taken. In the conversations of our people they often spoke of the manner in which it had been taken before De Reinhard, but I can not say, for certain, whether this wat before or after, ihe declaration which be made to me. 'if m r.Mt>':i{.fi--rH 232 hibited from ^oing into the detail of the same transaction. We have proved that it was in the possession of Lord SelkirJc, and taken by violence, We now wish to prove by what species of vio- lence, namely, bj armed force, with cannon, &c. and I confess I do not sec the difference, or upon ivhat principle it is, the Court refuse to allow us to go into it. Chi$f Justice Setoell, — I will state the principle, and perhaps you will then see the difference. The principle upon which the Court act is this, that it may be materiieil to prove that the fort was in pos- session of Lord Selkirk at the time, but it can not be necessary to shew that it was taken with can- non. The substantial* fact, that it was in posses- sion of Lord Selkirk, you have. That it was formerly, and is now, occupied by the North-West Company, is mattar of public notoriety. These are the substantial facts, and are all that is reouir- cd, it is of no consequence at all how it was taken. Cross examination resumed by Mr, VaOihre de Si. Real J, Ft'/cAtV.— Cbpitaine D^Orsonnens a dit, de- vant De Reinhard, qu^en consequence des difiicul- tes entrc Milord Selkirk et les gens du Nord- Ouest, ou pour vuider les difficultes cntrc les com- pagnies, que, s^il £toit nccessaire, il auroit des troupes du gouvemement, roais je ne sais pas s'il a dit un mille ou dix mille, ou qu^il a mcntionne le nombre, ou si c^^toit avant, ou apres, la decla- ration que De Reinhard m'a fait. J^ai connn De Reinhard long-terns, il ^toit bien cstim6 dans no- tre regiment. II ctoit un Couleur-Serjeant, ct j'^tois aussi un Couleur-Serjeant.('^) (3^) Captain D^Orsonnens said, before De Reinhard, that in jconeequence of the disputes between my Lord Selkirk ^od.tlie v^ 233 MILES M'DONELL, EsquiRE, Sworn, jSnd examined by (he jJitomey-GeneraL Attomev'General-^Y ou I believe, Sir, have beei^ ki the Indian territory ? Mr. M^DonelL'-iefi, I have. Jlttomey-General. — Did you, Sir, know a person named Owen Keveny. Mr. M^Donell. — Yes, I knew Owen Keveny, he passed the winters of 1812 and 1813, with me at Red River. Attorney-General. — Did you. Sir, ever know more than one person in that country of the >iame of Owen Keveny. Mr. M^DonelL — I never knew but one person of that name, nor indeed of Keveny, except Mr. Keveny. *• Attorney 'General. — How long, Sir, have you been in the Indian territory ? I befieve you generally reside there. Mr. M^Donell. — I do not know that it is exact- ly in the Indian territory, but in the territory of the Hudson's Bay Company. I was at Red River from 1812 to 1815. Attorney-General. — Then, had there been any more of the name of Keveny it is most probable, from your knowledge of that country, and its in- habitants, that you must have known them. Mr. M^DonelL — I generally knew the gentle- North* Weft Company, or in order to settle those di.sputes, be was, if it was necessary, to have troops front goTemment, but I do not know whether he said one thousand or ten thousand, qr that he mentioned any number, or whether it was before or after the declaration which De Reiuhard made to me. I have )[nown De Reinhard for a long time, he was murh esteemed in our regiment. He was a colour-sergeant, and I was also a col- fur-sergeant. N i>s^W I ■ J*' H,'JJ. ■.gW4,.j,,t Fri y-.-Hi rt -i':; m>] 234 men residing there during the winter, as I went every summer to York Fort in the Hudson's Bay territory. I was acquainted with all between the River Rouge and York Fort. Attomey-GeneraL — Did Mr. Keveny, Sir, go to England, and when, and has he returned to your knowledge ? Mr. M'DonelL^ln the autumn of 1813, Mr. Keveny went to England, and I heard that he came out again to the southward, to Fort Albany, but I have not seen him since. Mr, Stuart. — That is no evidence. The wit- ness, I believe, does not even know that he was in England. Mr. M^Donell. — I had a letter from him sayinj^ he was on the point of embarking, and I heard af- terwards that he had been in England, and that he had returned. JIfr. Stuart. — That will not do, he only heafd it. Mtorneu'GeneraU — I do not know that yet. You was, I believe, in England afterwards } Mr. M^DonelL — In 1815, I was taken prisoner by the North- West Company, and sent to Fort William, and afterwards I went to England, and there I heard that Mr. Keveny had returned. I heard it at the Hudson*d Bay HoUse from the gentlemen in the office. j^ttomeiif-General. — ^What sort of man, Sir, was Keveny in appearance ? Mr. M'^Doneil. — ^^. Keveny, Sir, was a slen- der active man, about 5 feet 10 inches or 11 in height, of a fresh complexion, rather young, about thirty I should suppose, with light brown hair. He was a slender man, but very active. Atlomey-GeneraL — Do you know the passes oo the River Winnipic, and was you ever at the jDalles? ., Mr. M''DoneIL — Yes, I know the passes on tbe 235 River •^Vinnipic, and I know the Dalles^ In corn* iDg from the Red River last July, or the begin- ning of August, I landed at a placet en haul des Dalies, where I was told that the murder of Mr. Keveny had been committed. jittorney-GetieroL — Did yott meet any body at the Dalles who knew Mr. Keveny ? Mr. M'DoneU. — No, I did not; at tke placti there are no inhabitants. df /•'ofiM^'Gcn^ro/.— Whicb side of the river did you land, and what did you see? Mr, jWDoneU, — f landed on the left side of the river as you come up, coming towards the Lad dea Bois. i was coming up a<^tttst the stream^ and landed on the left hand side. We were shewn, at a few yards distance from the shore, on a point of tock, the skeleton of some person covered with itones and a few branches. Attomiy^GeneraL — Was it an entire skeleton of a man ? Mr. M^DoneU.^-\ believe there were all the bones of a man. 1 hey were asunder, and there was no flesh, but I have no doubt it was a skeleton of a human being. The bones were not eiitended at length, but put up to<;ether ; those of the legs and body together in a heap. AUomeij-GeneraL — Did you do any thing with them ? Mr. M^Donell-^We buried them more, by put- ting more stones above them. Jittornev'GeneraL^^Do you think they were the bones of Mr. Keveny, or did you observe any thing that would lead you to think they were not the bones of Keveny ? Mr. M^DonelL — I saw nothing that could lead me to think that they were not tne bones of Mr. Keveny, on the contrary Mr. Siuarl. — Thii is mere negative testimony Ill i: 111 J P. wM i|i mm m it - w^ 4i'>' ^f'l ^;?^:' .W'^K 236 founded on opinion, and not admissible, I conceive. Chief Justice Setvell, — I don't know that, Mr. Stuart. It is a fact that bones were found. Were Ihey, Sir, the bones of such a man as Keveny was, of a slender man, five feet ten or eleven high ? Mr. M''DonelL — They were small bones, and of such a man as Mr. Keveny was. Mr. Keveny was a slender man, but tall, and 1 took them for his bones. Atlomey-General — Have you. Sir, any doubt that they were his bones ? Mr. M^DonelL-^l have no doubt that they were his bones. jittomey- General. — ^What sort of man was Mr. Keveny in his temper and deportment } Was he a violent, or what sort of man t Mr. M^Donell. — Mr. Keveny was a man that could be easily managed, he was a man possessed of a high spirit, and a quick sense of honour ; he was quick to fesent an insult, but did not give them. •Attorney 'General. — Was he a strong, athletic man, that would not be able to be managed by one man ; by the prisoner for instance ? Mr. M'^Donell. — I should think one man might easily manage him. I suppose the prisoner to be superior to Mr. Keveny in point of strength. j^ttomey-GeneraL — Was ne a man given to quar- rel more than others .'* Mr. M'^DorieU. — No, I think not. He was a man who would not put up with an insult. Attorney-General — Do you know any thing of his quarrelling with the people he brought out to Hudson's Bay } Mr. M''Donell. — -l have heard that he quarrelled ^ith the Hudson^s Bay people he brought out, but I saw nothing of it. He v/as not more likely to quarrel than other people. I never had any dif- /erepcc with him. 237 Jftiomey-General, — You said that jou put up a cross — was there any there before, and dia you see any other thereabouts ? JUr, M^DoneU. — I put up a cross ; there had been a stick with a wisp of straw acrossit, accord- ing to the Indian manner. I saw no other there. Crosses are generally put at rapids,*where people meeting with accidents are buried, but here are no rapids. Attomey-Generd, — Have you seen the prisoner at the bar before ? Mr» M^Donell, — Yes, I have. AUorney-Genercd. — Will you tell us where you saw him, and relate all that passed between you at that interview ? Mr. M'DoneU.^l left J ort William to go into the interior, that is to Red River, on the 15th October 1816, to go inland, and about three days after, the prisoner joined us where we were fen- camped, and said that he had been sent from Fort Lac la Pluie by captain D'Orsonnens, and was on his way to Fort William, to submit himself to Lord Selkirk. jUtiomey-General. — Did he introduce himself to you ? Mr. M^Donell. — He came to my tent, and we spoke together a great deal about afiairs in gen- eral relatmg to the North-West. AUorney-Getieral. — Did he tell you that he was a prisoner, or did you see that he was one, was he in confinement r Mr. M^Donell. — He told me afterwards that he was a prisoner, but he did not appear like one. He had a gun and ammunition, and a shot-bag on, he did not appear as a prisoner ought to be. Jlttornev'General.-AYdU Sir, relate all that pas- led? Mr. M'^DonelL-^Mter some time wc spoke df ■V rv $, I 2.18 ; m !.l the afimirs of the tarage territorj generally, an J amoDgst others of the massacre in which gover- nor Semple fell, together with his people, by the North- West Company. He then toM me that he also had committed some crime, * .'X was then a prisoner oil his way to submit hirose' j Lord Sel- kirk. I told him I supposed, or believed, that lie had nothing, or not much, to apprehend, as I suppos- ed he had not been guilty of such heinous crimes as the massacre at Red River, upon whicli he said that he also had killed a man belonging to us, and asked me if I would permit him to name him, and I said, yes, certainly. Chief Justin Sewcll. — Will you give us the pre- cise words which he used ? Mr, M^Donetl, — II disoit ; " voulez vous que jc vous le nomme,^* et j'ai rcjiondn, oui.C) Jlttorney-Gencral. — Whom did he name ? 4^r. M'Donell. — He named Mr. Keveny. Attorney-General — Owen Keveny, did no say? Mr, Ju'Donell. — No, he said Keveny, not Owen Keveny. •^ttomey-GineraL-^^Dld lie describe him ? de- scribe his person ? Mr. M Doneli, — No, he did not, I did not ask him, for I was very much affected. He sjaid that Mr. Keveny had come from Hudson's Bay, (he appeared to speak of Mr. Keveny with regret for what he had done,) and that he went with a war- rant from Mr. M'Leod to arrest Mr. Keveny, and brought him to the mouth of the River Wiunipic, he having been taken by himself and another man, named Casseran, to wnere M'Lcod lived, but ht bad previously departed for the north, or interior of the country. He said, that at the time of tak* ing Mr. Keveny, there had been a struggle be- ( >*) He laid ; " shall I oame him to you," and 1 aqiwercd, ^^fi a, 23f> twccii ihcm, (bclw^cn hiinscirand Krvtny,) and as the prisoner told rac, the Bois Brules who were with him, would have killed Mr. Kcvcny, but that he prevented them, saying thai lie could manage Keveny himself. Mtomey'Gencral. — Did the priHoncr speak of tliis as any thing more than an ordinary scuillo ? Mr, M^DonSl, — He spoke of it as of a scuflle, but not one of great diniculty, only that at first he resisted the execution of the warrant, but that he managed him after a scuffle. He went on to tell me that he was afterwards sent from the place called Bas de la Riviere for Fort William, and that some days after he had been sent away, they received news at Bas de la Riviere, that Fort William had been taken possession of by Lord Selkirk, that thereupon a council was held at Bas do la Riviere, at which it was resolved to dispatch Mr. Kcveny rather than he should join Lord Sel- kirk. He, (Dc Rcinhard,) said that he was pre- sent at this council with Mr. M'Lcllan. That Mr. M'Donell, .Tosenh Cadottc, Cuthbcrt Grant, and some others, whose names 1 do not now re- collect, were also present, and that they divided his eflects between them at this council. Attorney-General. — Did he tell you vvliat part 4ie had for his share, as well as who were present ? Mr. M^Donell — No, he did not mention what part of the effects he had. He told me that Mr. M'Lcllan, Mr. M'Donell, Mr. Cadolte, and Grant, were present, and that it was held after tliey re- ceived the news that Fort William had been tak- en, to which place the deceased had been sent. and was then on his passage. Attorney-General. — Did he state to you if :iny representations were made to him on the subject of the persons supposed to be under Lord Selkirk f Mr, M'Donell. — Yes, he said that they reprc- •a-.i I tmM t»*i k ■ M.,- .1 240 fented to him, (the prisouer,) that the deceased was a rebel, and that all the persons employed under my Lord Selkirk were rebels, and were acting against the government, and that the great- est mischief might be expected as he had with him papers and plans which might, and would, be ruinous to the North- West Company. He after- wards mentioned being in a canoe with Keveny in company with a man named Mainville and a Savage commonly called Josd', fils de Perdrix Blanche. Attorney-General — Have the goodness, Sir, to relate to us what he stated to have passed in the canoe. Mr, JWDonelL — He said that, en hau'^ dcs Dalles, they landed, and that Mr. Keveny, for some na- tural occasion, left thcni, and went o little di- stance into the woods, and that, ciuriiipc his ab- sence, he spoke tu Mainville, sayin|^, that if he, (Mainville,) was desirous, (the words were, ^^ si vous avez envic,") ("•) of killing Keveny, that this was a favourable place ; upon which, as Ke- veny was approaching the canoe to recmbark, Mamville discnarged his gun, shooting him in the neck, and that he, (the prisoner,) ran him twice through the back with his sword to finish him. He also said that, after being wounded, Keveny tried or attempted to speak, hut that all he could say was, ^^ you," adding that he did not suflbr long, for that he, (De Ueinhard,) im'mediately put him out of pain. He told me a great deal more which 1 do not now recollect, but I have related the principal parts of our conversation. J^ttontetf'Getteral. — Did he appear penitent, and express sorrow for what he hau done, or account for his conduct ? (*•) If you bare a wislu ■^^% Bed yed rerc eat- I, be ftcr- veny ind a rdrii ir, to in the dalles, ne lia- llo (11- lis ab- it if lie, re, ''si y, that tuibark, in the twice L hiro. Kcvcny e could or long, put him e vhicK ted the Jilt, and accouot 241 Mr. M^DonelL — He appeared very penitent tot \vbat he had done, expressing great sorrow, say- ing that he had been misled, and that it was through ignorf'?ice ihat ho had done it. JiHorney 'General — Did he tell you where Ke- vcny fell, and what they did with the body. jllr.M'DonelL-^Ee told me that Mr. Keveny fell just by or upon the canoe, just as he was going to embark, and I do not recollect that he told me what they did with the body ; I think he did not. // being 6 o^chck, the Court was adjourned until to-morrow at B o^ciock^ Jl, J\L The Chief Justice admonishing Mr, M^Doncll that he must not hold rommunicaiion with any person on the subject of the friaL Tuesday 2(jth May, 1818. PRESENT AS BEFOIIB. The Jury were called over, and being all present, Miles M^Vonell, Esq* was cross-examined by Mn Stuart. Mr. Stuart. — You can not, I imagine, say posi- tively that the bones you saw, en haut des Dalles^ were the bones of Keveny ? Mr. M^Donell. — No, I can not swear they were his bones. Mr. SVi/ar/.— Are you sufficient anatomist to know the dimensions of the bones of a man .0 feet 10 or 11, or to distinguish the bones of a man from those of a woman ? Mr. M''Donell.'"f^o, I can not say that I am. I should know the bones of a very large man so as to distinguish them from a small one, thes« ■y-i ;"!.!:,>:; ■f.,1 «i>i.;; % r -'it 212 were neither, tliey appeared the boues of a man rather above the middle size. J^lr. Stuart. — Did De Reinhard tell you ivherc the council, of which jou have spoken, was held ? Mr, J\l DoticH. — I do not recollect that he said where it was held, but he told me who were there, viz. Mr. M'Lellan, Mr. M'Donell, Mr. Grant, Mr. Cadotte, and others, together with himself. Mr. Stuart. — Are yoii sure he told you Mr. M^Donell was there ? Mr. M*Dor^ll."'Yc8, he told me Mr. M'Donell was present. By Mr. M'Donell I mean, Mr. Alex- ander M'Donell, a partner of the North-West Corapar)\\ I am sure he told me so. Mr. Stuart. — Did ho tell you how many persons were there ? Mr. M'^Donill. — I do not think he gave me infor- mation as to what number of persons were there. He spoke a great deal in French, but, having no- ticed the material parts of his statement, I did not pay particular attention to the more minute. Cluef Justice SewclL — Are you sure, Sir, that the prisoner told you the Mr. M'Donell was Alex- ander M'Don»^ll. Mr. M'DoticlL'-Ue told me that Mr. M'Donell was Mr. Alexander M'Donell, a partner in the North- West Company. Mr. Stuart. — i ou was, I believe, Sir, made a prisoner on'*e ? Mr. M'*DoneU. — I was made a prisoner by the North-Wcbt Company in 1815, and taken to Mon treal. Mr. Stuart. — When did Mr. Keveny go to Etig- ]and } and have you seen him since } Mr. M'Donell.-^h} the autumn of 1813 he went, and I have not seen him since. Mr. Stuart, — Mr. Keveny was a mild man, not given to quarrel, or of a hasty temper, no way urj- governable ? y^^' 243 11 re I? lid re, ^r. Mr. neU lex- Vest ) I liavo been in Iho Indian tfrritorip". In 181G I was in the service of Jhe Norfh-Wosl Com[)any. I was formerly a ser- geant in llx' Meurons rt'uinient. 1 saw Kiiveny's bautjage at ihn fi>rt at 15.IS de la Rivitru ; I received it from a Canadian named Weils, and an Indian called Jose[)l). The trunk which tlioy tielivcrtd to me was marked " Keveny." (< ') Yes, I received a letter from him, but I have not got it here. (*3) //. — I ^vns en^^aged in the North-West Company for three years, hut 1 left belore my engagement was cornpletcil. 1 did not enter into the service of the Hudson's Bay Cou'pany, nfirofiny Lord Solkirk. I never was employed in the service of any other company. Mr. V. F. — III what service have you bthcr capacity ? did you never act as clerk to JLord Selkirk ? • Ikm \ ■ 2?1 Z)r. jillan, — I never acted as clerk to Lord Sel- kirk. Allomey'Genernl. — Lord Selkirk, I believe, wut a roa^jtrate in the Indian territory at that time ? Dr» Mian. — Ho was. Attorney 'General, — Was yon present when the prisoner at tho bar signed a paper, purporting to DC a confession ? Dr. Mian. — I was present when Do Rein- bard signed a paper drawn with his own hand. Mr. Stuart. — How can the witness know that, he did not see hitu write it, I suppose. Attorney-General — I be£^ my learned friend not to interrupt me, 1 shall [)rove it incontcstibly to be his band writing; you , Dr. Allan, that you saw the prisoner sign a ^ ipcr which was drawn up by himself.'* Dr. Allan. — Yes, T understood three day.i be- fore, that he was drawing up one, and ho told mo at the time of signing it, that it was his own liand writing. Attorney'General, — Was you present wjjen tlic paper was given to the Earl of Selkirk by tho prisoner } Dr» Allan.^l was present when the prisoner gave tho paper to Lord Selkirk. Attomey-GeueraL — Was any thing said at tlic time, any promise or threat made use of .^ Dr. Allan. — There was nothing said in my presence, except that Lord Selkirk asked if he wished io add any thing, or take away, or chango any thing, contained in the paper ; and be said, No. There was not any promise or threat made use of; De Reinhard signed tho paper, and then delivered it to Lord Selkirk, and when it was de* livered, Lord Selkirk asked him whether he wish* ed to add, or take awayi any thing from tliat p%* per, IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 11.25 ■iilM 12.5 ■30 ^^™ lii^H L£ 12.0 us 1^ ,_ I 6" '/ f /. Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) •72-4503 v iV 4 •S5 \\ ;\ ,*■ <^^ K<^ ^ ASf' fe, ^ ■, t'l.;' m m'> ^^! m .t 252 Mr. Sluart. — I object to this, as going to prove llic contents of a paper by evidence that is not le- gal. Let the paper be produced regularly. J\lr, Justice Bowen. — 1 suppose you have nq ob- jection as far as the testimony has gone.. You can object to the paper when offered to be made testi- mony. Mr, Stuart. — No. It does not signify to mc when I make my objection to the paper, but I considered it would be savinjj time to do so at the commence- ment of the examination into it- Dr. Allan sa^s distinctly that he was not clerk, but surgeon, to Lord Selkirk, who, as I understand, signs this pa- per as a magistrate ; produce him, or his clerk. Solicitor General. — For all the purposes of this confession, I should contend, may it please your honours, that the present witness was a clerk. Did you. Sir, act as surgeon to Lord Selkirk in witnessing the paper ? Dr, Allan. — ^I was surgeon to Lord Selkirk. I came out as a medical attendant to Lord Selkirk's family. I had never heard of Red River at that time. SoUdtor General. — But you witnfss^d the pri- soner sign it, and say it was his own writing? ' Dr. Allan.— I was present when it was signed. Nothing was altered ; he said he did not wish to alter any thing. Three or four others were also present. JlSfr. Stuart. — I hope the Court are not taking this, before the Crown makes the paper evidence ; surely, till the paper is put in, this can not be evi- dence. ChieJ^ Justice Sewell. — This is evidence only so far as it is a recapitulation of what took place at the delivery of a certain paper which, if not pro- duced, goes for nothing, or if produced, and found inadmissible, the same consequence attends It, U 253 rove itle- ^ob- i can testi- found to be evidence, we then have the whole at- lendant circumstances before us. Mr. Stuart.— h would be more frank of the Crown officers, to state explicitly what it is they are going to prove by this paper. Solicitor General. — We mean to prove a volun- tary confession on the part of the prisoner. Mr. Stuart. — Oh! that is it. Is it.^ Jittorney-GeneraL — ;Certainly it is, and have we not a right so to do ? Mr. Stuart. — Then, if I understand the Crown officers, it is their intention to prove a deposition takfti before a magistrate, by a by-stander, and I object to such proof. Attorney-General. — My learned friend is, I think, a little premature. We have produced no paper. He ci^n not therefore make an objection to tho mode of proof. Chief Justice Seweil. — It is of no very material consequence when the objection is made. You have stated that you intend to prove a confession upon paper, by this witness, and you have examin- ed him relative to the manner in which the paper was delivered to the Earl of Selkirk, and Mr. Stu- art immediatiely, (declarliig that he objects to its being produced,) proceeds to state the reasons for which ne objects. I suppose, according to strict etiquette, the time for objecting would be when the paper is put into the hand of the witness and the question is asked ; is that the paper which you saw signed and delivered by the prisoner at the bar to the Earl of Selkirk ? that undoubtedly is the regular time of putting the question, and you had better reserve your objection to that stage of the examination. J^ttomey-GeneraL-^Did Lord Selkirk send for any person to witness the prisoner sign the paper ? Dr. Man. — Lord Selkirk sent for a gentleman ■y "^ 254 ■J',. 1 belonging to the North-West Company, named Dease, to see De Reinhard sign the paper, and, he sighed it as a witness ; he read the paper, in xoj presence, and signed it as a witness. Auomey-Gcntral. — Did he make any remark on reading it? Dr. Allan. — Mr. Dease read the paper, and ?ftk- ted the prisoner if the contents were true. De Reinhard said, yes, they were true, and sighed it, and Mr. Dease signed as a witness. Mr. Dease read the paper to nimself, and not aloud. AUorney 'General. — Is that the paper, Sir, \^l|jch you speak of.^ ' V Mr^ 3iuart.-^l object to that question. Jdlorney- General. — Is that the paper.** Chief Justice Sewell. — Now is the time certainly for Mr. Stuart to tender his objection, an'J'to be heard in support of it. Mr. Stuart. — The officers of the Crown produce a paper purporting to be a confession of the pri- soner at the bar, takeri before a magistrate, and they propose to prove the signature of Charles De Reinhard, by the gentleman now in the box. To this course of the learned gentlemen We ob- ject, and I shall have the honour very briefly to submit to the Court, the grounds upon which our objections are founded. We object to this paper or confession being proved, unless the magistrate before whom it v^as taken, or that magistrate's clerk, is brought forward to prove it, as it is a confession which, on its very face, shews that It was taken under the statute of Philip and Mary. Here then is the case. We have before us a con- fession or declaration, before a magistrate, on a charge of folony, and the question is, can it be re- ceived in evidence } We say no, except the ma- gistrate or his clerk is produced, according to the provisions of the statute of Philip and Mary. 255 Without reference to the authorities upon the sub' ject, the necessity for a strict compliance with thi» provision of the act must, I conceive, be apparent to every one. At the time of making the confes- sion, he was in the magistrate's hands, who, ac- cording to his judgement might liberate or impri- son him, for the statute of Philip and Mary gives that discretion to the magistrate, but provides a check against magistrates inducing prisoners to confess, by rendering no other evidence sufficient to prove a confession, but their own oath, or that of their clerk who was present at the time of its being made, and the reason is apparent, because it is the magistrate alone who can give what the law invariably demands, the best evidence of any fact that it is wished to prove. Apply it to this case, and it is obvious tnat this gentleman, who was in the room a short time, five minutes per- haps, can not give us that information which the magistrate could before whom the confession was made, and who must necessarily know whether any promise or undue influence was resorted to. Upon the great and leading principles of criminal law, that the best possiJ3le eviaence must be brought before the Court, this confession is inad- missible. What is the best possible evidence in this case, why indubitably that person who knows all about it, from beginning to end. Who is able to give a legal quality to the confession by answer- ing those introductory questions, which it is indis- pensible shall be put previous to any such examin- ation being read in evidence. MacNally p. 41, in a few words, lays down the rule, which it is im- possible to evade. "Before such examinations "can be read in evidence, it must be testified that "they were niiade freely, without any menace, or "terror, or any species of undue influence impos- "ed upon the prisoner," Who, I say, but the .1. :;.i H • 'it ':^ I !/ .a ; 'I M ,1 ■'A li i m ;-:■:< >■■} ^'I'l; Sv H fr> I'-l 1 f M > 'i y-.M 256 magistrate, or his clerk, can satisfactorily prov*! thj^. Here we have a confession attempted to be prpved, without a justice being brought before the Court, or his clerk; and a confession not written down at the moment, when it might be supposed that a sense of guilt burdening the conscience, led to a full developcment of all the circumstances connected with the crime. What certainty have we that threats and menaces were not made use of, or what certainty, on the other hand, have we that promises were not resorted to, to induce the confession. If ray instructions are correct, pro- mises must have been held out, for previous to the confession, I believe, we shall be able to prove that De Reinhard was confined closely and treat- ed with rigour, but that after he had delivered this paper, he was liberated and treated with kind- ness. This circumstance alone is sufficient to ex- cite suspicion, and to dictate the" absolute necessi- ty of most strictly scrutinizing every thing con- nected with this pretended confession. The pe- culiar situation of the magistrate who received this confession forms a reason to examine into this case (more than any other,) with the utmost minute- ness. , Fort William, where the prisoner at the bar was in a rigorous confinement, previous to making this confession, had been taken by, and then remained in possession of, this very magis- trate. A justification for all the violence and ag- fression which characterized the capture of that 'ort was, we are told, that it was mdispensible to enable this magistrate to bring to justice a band of criminals, who had thought themselves above the law. This is the story that had, by every possible means, been circulated in that country, and that all in opposition to this magistrate were rebels and traitors. That story not answering^ except in the wilderness, where information could 157 ■'i no* be obtained, except through the channel and under the observation, of this very magistrate^ recourse was had to the press, to enable the ac* tors in these scenes to stand clear in the public opinion. I hold in mj hand a publication, in which this verj confession is given to the public, and not the confession alone^ but with comments calculated to inflame the public mind, and deprive this unfortunate man, ana every other person any- way connected with these transactions, of a fair and impartial trial. Most sincerely do I tr.u&t, as it is the first, so it may be the last time, we shall hear not only of a British .subject, but of any ^hu-^ man being, having been exposed to the danger of the public ear being poisoned against him by the very magistrate who has received this confession. Here is a magistrate who, to gratify his own de-* sire of revenge, has dared to reveal the King's counsel, which by his oath he was bound to keep secret, and to disturb and sully the pure2i/ pas etre re9ue, parce- que le ma^istrat devant lequel elle a ete faite n'est pas produtt pour la prouver, et secondement, qu^a cause 4e la conduite du magistrat elle, ne doit pas etre re^ue. Le magistrat, le Comte du Selkirk, de quije ne veux rien dire, que comme un magistral; je dis, ce ma^strat a tant meprise son devoir, qu'il s'efibr^oit d'empoisonner Tesprit public, en don*- nant au monde ce papier que les ofiiciers de b Couronne ont produit comme une confession que le prisonnier avoit faite au magistrat ; et ne sebornant pas seulement a Timprimer, ce magistrat, oubliant egalement son rang dans la societe, et le devoir que, comme un magistrat, il devoit au Roi, a se& sujets, et a lui meme, a meme ose commenter sur la confession. Oui, vos honneurs, pas content d'a- "voir public, (contre son devoir,) cette confession, W i%*a pas eu honte d'empoisonner Topinion 'publique contise. le prisonnier, en iaisant des comiQentaifei \{' ■**' «59 . l^^dedsui. Je n^obj^cte pas contre eette confessioDy parceque je la regarde comme le r^sultat d^ua Gompromis atec les officters de la Couronne ; avec moD Bavant confrere le Proctireur General, ou moa pas le resuiiat a tin compromis cusateur particulier et le prisonnier a la barre, Jour quelque dessein qui ne parolt pas a present, e precede k soumettre k la Cour que la loi de«- mande toujours^ et exige m^me, la meilleure evi- dence contre un prisonnier que la nature du cas permettra^ Donc^ je demande, quelle Evidence, dans ce cas^ est la meilleure, de cette confession? Non pas assur6ment le temoignage d^un regardant) non pas celui d^m monsieur qui vous dit qu^il n^a pas Tu le prisonnier Pecrire, non, non pas du Doo*- teur Allan ; mais la meilleure evidence seroit le t^* moignage du inagisf rat devant lequel laxonfession avoit kt& faite, ou de son commis, et non pas celui d'un du monde qui, purement par accident, etoit' present. Regardons cette confession, et le t^moi- gnage du Docteur Allan l^-dessus. Cette confes- sion avoit ete pr^paree d'avance, ce qui n'est pas assur^metit une crrconstance ordinaire; Encore, au terns que le prisonnier Ta livree au magistrdt, il 68t prouvi6 que le Comte de Selkirk demanda, s^il touloit y changer aurescnt, peut- du pri- Bxamen . circon- cun au- istrat a- ,n pour- t a pre- infcette aison le isonnier dVxamincr le mafl^istrat devant Icquel loe oflficicri de la Coiironne disent qu'il a fait sa confession. — La loi dit qu'auparavant qu'une confession peut etre re9ue contre un prisonnier, qu'il sera etabli, qu^clle n^a pas et^ obtenue par des promesses ni par des menaces, et que cette circonstance sera prouvee. Par qui ? Non pas par aucun individu qui, par hasard, ou par accident, se trouve dans le bureau de police, ou dans la chambre d^un magis- trat au terns qu^un prisonnier fait sa confession, mais il est expressement dit, que ccla se doit faire par le magistrat devant lequei la confession a ete faite, ou bien par son commis qui Pavoit 6crite, et pourquoi ? Pour la raison, assurement, que le ma- gistrat, ou son commis, devoit fournir le meilleur temoignage dont le cas pourroit admettre, et la loi exige toujours la meilleure Evidence. S'il etoit possible de permettre la reception d^une confession contre un prisonnier dans Tabsence dii magistrat, ou de son commis, il est empeche de produire, ct depouille de ce qu'il trouveroit sa meiileure defense. C'est le devoir des Avocats de la Couronne de pro- duire le meilleur temoignage, et je demande, le Sroduisent-ils en prodiiisant te Docteur Allan ? Je is que non. Assurement non. Si mes savans confreres, les officiers de la Couronne, disoient que . le Docteur Allan Fa si^ne commc temoin, et done que Tobjet de la loi, savoir, Pidentite de la confession, est obtenu, je reponds, cela nimporte ; la loi cxige que le magistrat, ou son commis, £oit le temoin^ parceque c'est le meilleur temoignage qm est tou- jours demande par la loi. Encore, je soumets a laCour que cette confession ne peut pas etre ad- mise, parceque le prisonnier n'auroit pas le pouvoir de transquestionner le magi«trat.(**) (**) If it please the Court I have the honour, in the first ' place, to submit that this confession of the prisoner can not be if' 4 1 'I M 362 ■<;: >' :*$ V'l > >;'!*! ^mm >l '.i M ■ I i .) , :iit Ailomey-General — He is not prevented bi'inginf^ the Earl of Selkirk, if he thinks him a necessary witness. Mr, Vanfehon, — Je demande pardon a mon sa- vant confrere, mais c^est son devoir de produire le received, because the magtttnite before whom it was made is not produced to prove it, and secondly, that on account of the con- duct of (he magistrate, it oughi wft to be received. The magis> trate, the Ean of Selkirk, of whom I wish to say nothing but as a magistrate ; I say that this magistrate has so widely deviat* ed from his duty, that he has dune his utmost to poison the pub- lic mind by giving to the world this paper, which the officers of the Crown have produced as a confession' y?hicb the prisoner had made to this magistrate, and not con6nin^ himself alone to the printing of it, this magistrate, equally forgetful of his rank in society, and the duty which, as a magistrate, he. owed to the king, to his subjects, and to himself, Ms even dared to com- ment upon the confession. Yes, your honours, Qot satisfied with having published, contrary to bis duty, this confession, he has not been ashamed to poison the public opinion against !he prisoner, by making comments upon it. I do not object to Ibis confession because I consider it as a resujt of an understanding with the officers of the Crown, with ,ray learned brother the Attorney-General, or my learned brother Mr. Solicitor. No, not at all, but I say that it is not certain whether it is not the result of an understanding betweeo the private prosecutor aad the prisoner at the bar, for some purpose which does not bera appear. I proceed to submit to the Court that the law always requires, and indeed exacts, the best evidence against a prisoner, which the nature of the case will pennit. Then, 1 ask, what is, in this case, the best evidence of this confession ? assuredly not the testimony of a bystander, not that of a gentleman who tells you hie did not see the prisoner write it, no, not that of Dr. Allan ; but the best evidence would be the testimony of the magistrate be- fore whom the confession was made, or of his clerk, and not that of one of the persons who happened, by pure accident, to be present. Let us look at this confession and the testimony wbicb Dr. Allan gives concerning it. This confession had been pre- pared beforehand, which is certainly not an usual circumstance. Again, it is in proof that at the time the prisoner delivered it to the magistrate, the Earl of Selkirk enquired whether he wished to alter any thing in it, to add any thing to it, or to take any thing from it. Most assuredly my learned brethren will not say that this conduct is usual. Therefore I ask, why ? for what Mason ? I say the moment we find a magistrate denarting iom 263 tneilleur temolgnage pour prouver son cas, ct si, comme dans le moment present, il prescnte dcs t6* moigna^es d\me autre description a laCour, ce nV»t pas a lui de dire que nous le pouvons produirc. 11 est absolument necessaire, avant que cottc conft^s- the regular course, from tHat moment (here i» grcnl reason (o fear that the whole has not heen honi'sily conducted, and KM>k> ing at the manner in A'hirh this conto^siun of the ;>ri«oncr was made, and alvo at thu mode of its production here, 1 am com- pelled to sa/ that the circum?lunccs are very st.'^ipiciuce. An- other circumstance which renders it of great importance that the magistrate should be propuced, ia this : the confe«<>ion was rea- dy written when it was delivered to the Earl of Selkirk in the presence of Dr. Allan, and, without the Earl of Selkirk is pro- duced, it is impossible to know whether any threat or any pro- mise was made to the prisoner to indude him to confess. Let us look for a moment at the confession. VVhal is it ? it is the his- tory of a murder which is alleged to have been committed ia the Indian territories, and the paper particularly recites that this confession i^ in the prisoner*s own hand writing, and that he made it befbre My Lord Selkirk, one of the magistrates for the Indian territories, who likewise signed it as such magistrate. I hope, and I hope with confidence, that this Court will not in* troduce a rule so novel and so dangerous, as to allow of proving a confession without the production of the magistrate before whom the confession was made. But I am sure that your hon- ours will not permit this confession to be received. Again, I hare the honour to submit that (bis confession can not be lecciv- ed, unless the magistrate who received it from the prisoner be present, because, if he were in the witnesses box, perhaps he might suggest^ something m favour uf the prisoner, or that the prisoner, during the examination of the magistrate, might draw out circumstances which are not khown to any other person. Perhaps it might appear that the tnagistrate had seen the pri- soner before, and thed a circumstanco would be explained, which at present is very difficuH to understand, namely, -horo this confession was obtained, and for what reason the prisoner drew it up. The prisonei' has the right (o examine the magis- trate before /horn the Crown officers say that he made his con- fession. The law dictates that previous to a confession being received against a prisoner, it shall be established that it was not obtained by means of promises or of threats, and that this circumstance shall be proved. By whom ? not by any indivi- dua) who, by chance or accident, happens to be in the police ^e, or in the apartntent of a magistrate, at the time that a t ffl a i, 4 lY'P 264 \\ I i 1' I I I V !r' sion peut etre re^ue, que le magistrat, ou son com- mis, nous dise qu^elle fut faite voloniairement, libre- ment, egalement sans aucune promessc d'avantage, et sans aucune menace de danger. Je veux bien admettre que, si le magistrat et son commis se trouvoient morts, done le temoin actuel seroit ]a meilJeuire evidence ; mais a present il ne Test pas, et je maintiens, avec beaucoup de confiance, que ce n^est aucunement r^pondre a mon argument, que monsieur le Procureur General me dise, que nous avoQs le pouvoir de la produire. Je le sais bien, mais il est de son devoir de prouver son cas par le meiU leur temoignage, et puisque la regie est telle, je dis qu'en produisant le Docteur Allan, messieurs les ofiiciers de la Couronne n'ont pas produit le meilleur temoignage dans leur pouvoir, et la con* sequence naturelle sera que cette confession, n'e- tanl pas prouvee par le magistrat, ne peut pas etre re^ue par la Cour comme evidence p6ur les jures. Ce n'est pas a nous a contredire la confession a- vant qu'elle ait 6te mise en preuve. Pour la met- prisoner k making his confession, but it is expressly directed that it shall be done by the magistrate before whom the confes- sion was made, or bj his clerk who had written it, and why ? certainly because the magistrate, or his clerk, would be the best evidence of which the case would admit, and the law requires always the best evidence. If it were possible to allow a con- fession to be received against a prisoner, in the absence of the aagistrate, or of his clerk, he is prevented from producing, and deprived of, that which he would find to be bis best defence. It is the duty of the Crown lawyers to produce the best testimony, and I ask, do they produce the best, in producing Dr. Allan. I say no, most assuredly not. If my learned brethren, the offi- cers of the Crown, choose to say that Dr. Allan signed it as a witness, and that therefore the object of the law, namely, the identity of the confession, is obtained, 1 answer, that ^oes not signify ; the law requires the magistrate, or his clerk, to be the witness, because that is the best jevidence, and the best evidence is always required by the law. Again, I submit to the Court, that this confession can not be admitted, beqause the prisoner urould not then have the power to cross examioe Jlhe magistrate. 263 tre en preuve, il est absolument necessaire de pro- duire le magistrate et quand il sera dans la boite des temoins, si nous ne pouvons pas prouver quo les circonstances sous lesquelles elle 6toit . faite, la previent d'etre re^ue^ c'est notre faute. Ajant connoissance de cette confession, nous attendions le Comte de Selkirk, et nous etions prepares de 'le voir ; mais a present nous soumettons, avec grande confiance, qiSe vos honneurs ne la recevront pas.(*') Attorney-General — The paper offered as evi- dence on the part of the Crown, I beg leave to contend, is entitled to be received, either as a confession taken before a magistrate, or as a pa- per in the hand writing of the prisoner, which we nave proved it to be. I admit, with my learned friends on the other side, that the rule is to pro- - (*') I ask pardon of my learned brother, but it is his duty to produce the best evidence in order to establish his case, and if, as in the present instance, he offers testimony of another descrip- tion to the Court, it is not for him to say that we may produce it. It is absolutely necessary, before this confession can be re- ceived, for the magistrate, or his clerk, to tell us, that it was made voluntarily, freely, and equally without any promise of benefit, or menace of harm. I admit, that if the magistrate and his clerk were dead, then the present witness would be the best evidence, but at present ti^ is not so, and I very confidently contend, that it is no answer to my argument for Mr. Attorney - General to tell me that we are ^at liberty to produce it. 1 know that, but it is his duty to prove his case by the best evidence^ and since the rule is such, I say that in producing; Dr. Allan, the officers of the Crown have not produced the best evidence in their power, and the natural consequence will be that this confession, not having been proved by the magistrate, can not be received by the Court as evidence for the jury. It is not our business to contradict the confession before it has been put in "proof. To put it in proof it is absolutely necessary to produce the magistrate, and when he is in the witnesses box, if we can not prove that the circumstances under which it was made pre- vent it from being admitted, the blame will lie with us. Know* ing of this confession, we expected to see the Earl of Selkirk, and we were prepared to meet hitn ; but now we submit, witb great confidence, that your honours will not admit it* 266 Ms' 'fi I: m I 'Has* .=' ' sTi /Jl e Reinhard was preparing k confession,) he finishes i^, and in the presence of the witness and others, amongst whom t^as Mr. Dease, a person belonging to the com** pany to which he himself was a ckrk, who read the paper, and afterwards asked De Reinhard if fJie contents were true, to which he answered they were true, the Earl of Selkirk enquires if he wishes to add, to take away, or to altel*, any thing in the paper, and saying he did not, he de- liberately signed it and delivered it to Lord Sel* kirk, the witness, together with Mr. Dease and others, testing the act by putting their names to it. Surely then we are producing, the best possi- ble evidence when we tender this same paper, and prove its identity by producing Dr. Allan, who witnessed the signing and delivery. I know not what evidence can be stronger ; it is the way deeds dre invariably proved, and amply sufficient in the present case. The observations relative to the publication had I think better have been with* held, as I can not see that they were at all called for. We have nothing to do with printed publicationSy on the one side or the other, they can not be evi- dence, and it is to be regretetd that they should enter our discussions. I beg my learnea friends to be assured, that no man can condemn more than I do any thing calculated, in the most remote de- free, to prejudice the public; were I not coufi- ent that it is unnecessary, I would intreat th^ jury to discard from their minds every thing that they may have heard or read of, out of doors, and to let nothing influence their minds in the judger ment they have to form, but the evidence that may be laid before them, and the charge of your honours. Indeed, I believe the Attorney-General die! call their attentioB to this part of their duty. 1 J 271 Id conclusioD, I beg to submit: let. that the con-' fessioo is most distinctly proved and authenticated ; 2d. if it should be thought necessary to produce the magistrate, we may be permitted to proTe, (which we should do by this witness,) that he is incapable of leaving Montreal, owing to sickness ; and 3d. that if a witness is necessary, then that Dr. Allan is a competent witness; he was present at the time, he heard neither menace nor promise ; he heard the prisoner tell Dease the contents were true, he heard him asked if he wished to make any alterations, and heard him answer, that he did not; he saw him sign it; he himself put his name as a witness, and he saw him deliver it to Lord SelkirL What can be stronger evidence against him ? what can be better evidence ? I con- tend that it must be admitted. Mr. VaUiere de ReaL — In reply to the Attorney and Solicitor Genera!, I contend that Allan can not, from his own shewing^, prove all the eircum» stances attending this confession. J'ai demande dans quelle capacite il restoit aupres du Comte de Selkirk. II vous a dit lut meme qu'il etoit son cfairurgien. II n'etoit pas son commis ou greffier. It n'etoit pas son factotum, mais il etoit le mede- cin, ou le chirurgien de fannille de Milord Selkirk,. et ce n'est pas le medecin, mais le commis, d'ua magistrat, que le statu t ordonne doit prouver une confession centre un prisonnier. Le Comte de Selkirk etoit present ici an dernier tenne, et il est du a son devoir, comme magistrs^t dans les terri- toires Sauvages qu'il soje ici a present; et main- tenant qu'il appert qu'il n'y avoit point de commis au terns que cette confession a etc laite, il n^ a au- eune personne que le magistrkt lui meme qui peut la prouver; mais mes savans confreres les officiers de laCouronoe disent, moyennanl que la confession Be soye pas une bonne confession dans la loi cri" ■il'ti "I'M 'V'*" ' 'jrpri^^ 272 minelle, cependant elle est bonne dans la loi com- mune. La loi commune exige le meilleur t£moin« Nous disons, avec confiance de succes, qtie cette confession ne peut pas ctre produite comme Evi- dence, car De Reinhard ne Pa pas fait librement, ni sous la surveillance de la loi. II n'dtoit pas, au tems qu'il Ta fait, en charge d^un connetable, mais il etoit n6anmoJns prisonnier; prisonnier dans un fort, que ce meme magistrat avoit lui meme en premier lieu pris avec des forces militaires, et en- suite retenu par une violence la plus abominable. Je soumets done que, depuis le commencement, durant la continuation, et jusqu^a la fin, cette con- fession n^est pas la meilleure Evidence, et done ne peut pas etre admise centre le prisonnier.(*') Chief Justice Sefoell. — Notwithstanding all the .>J>iiT (**) I asked him in what capacity he was retaiiied about the Earl of Selkirk. He has told rou himself that he was his sur* geon. He was .not his clerk or secretary. He-was not his fac> totuni, but he was the doctor, or family surgeon, of My Lord Selkirk, and the Statute does not enact that the doctor, but that the clerk, of a magistrate must prove a confession against a pri- soner. The Earl of Selkirk was present here the last term, and if is due to bis duty as a magistrate for the Jndian territories that be' should now also be here ; for now that it appears that he bad no clerk at the time when this confession was made, there is no person but the magistrate himself who can prove il. But taj learned brethren, the Crown officer^telLme, supposing the con* fession 4s not a j;ood confession in criminal law, yet it is good in cominon law. Common law requires the best evidence, and oo that account the Earl of Selkirk ought to be^ produced, because he is the best witness. We say, with C5>nfidence of success, that tbis confession can not be produced as evidence, for De Rein* hard did not make it freely, nor under the eye of (he law. He was not, at the time he made it, in thaige of a constable, but he was nevertheless a prisoner; a prisoner in a fort which that same magistrate had himself, in the first place, taken by miKtary forcei and afterwards retained possession of by the most abominable vio- lence. I submit therefore, that from its commencement, during its progress, and until its completion, this confession* is not the best evidence^ and therefore cSin not be admitted again&t the pri* soner.' 873 )Out the his sur- his fac- ly Lord but that st a pri- »tm, and tries that it he had ifTC is no But my the con- Is good in ., and on [ because kcess, that law. H^ [le,buthe that same iarV fo'*®* nable f io- nt, during is not the it the pri* txertioni of the gentlemen who are counsel for th# prifli^ner, notwithstanding all we have heard from thefn» we arc most distinctly of opinioqi. that thia confession must he receive^ as evioeqce |>roper t^ go to the jurj. I shall proceed to shew distinctly that, upon sound legal principles, this is the only conclusion we can arrive at. I shall first take up Philips on Evidence, sect. 5, page 81, ** since ap admission is evidence against a party in civil suits, with much stronger reason is the voluntary con- fession of a prisoner evidence against ,)iim on a criminal prosecution, for it is not to be conceived that a man would be induced to make a free con- fession of guilt, so contrary to the feelings and principles of human nature, if the facts were not true.''— -Then, adverting to a late case, the case of Lambe, he says, ^^ it seems now to be clearly established that, a free and voluntary confession hy a person a^^used of an offence, whether niade before his apprehension or after, whether on ^ judicial examination, or after commitment, whe- ther reduced into writing or not, in short, that any voluntary confession made by a prisoner to any person, at any time, or place, is strong evidence against him, and, if satisfactorily proved, sufficient to copvicjt, without any corroborating circumstan- ces.'' This doctrine was supportedhy my Lord Kenyon in Wheeling's case, 1 Leach Cfrown Cas- es, 34?* Under these general principles, who can doubt diat this paper is a good confession at com- mon law, if a confession made %t any time, and ^0 apf person^ is strong evidence, but this being in wilting, , and signed ny the prisoner, indeed the whole is the v^rjting of the prisoner, is certainly -'stronger. A coni^s^pn. reduced to writing, though not signed, according to ^ late decision, is gpod evidence, {^r.^ «^m^ice Grose in delivering tlite opinio^ of me tw^^lve, judges iaLambe'sqtsey iitat* - tB 1 Wnfl i ii Mat 'WilflV'JI Wm i'lJifn^H ;li i' mm Me ,1. 'I I*,I,>1 274 •d a majority held that such a confession would have b^en evidence at commoh l^w, and that it is not rendered inadmissible by any provision in . the statiates of Philip and Mary, respecting exaini* nations and informations before justices of the peace, ^^ for," he adds, *^ if a prisoner's confes- sion, ev^ when not reduced into writing, be evi- dence against him, a fortiori^ it must be admissi- ble when' taken down in writing, for the fact con- fessed, fieing thus rendered less doubtful, is of course entitled to greater credit, and it would be absurd tb say, that .an instrument is invalidated by a circumstance which gives it additional strength and authenticity." Now, this being the case, what is the paper offered by the Crown, and what is the principle by which its admissibility is to be tried, and tnis principle is stated by Hawkins and Mac IJ^ally, but very clearly in MacNally, rule 11th, page 47. " Confessions are received in evidence, 'or rejected as inadmissible, under a consideration "whetner they are, or are not, entitled to credit." Now, this being the rule, in what shape does the paper before us present itself.'^ before entering tipon the examination on this point, I would re- Dfiind the prisoner's Counsel of that remarkable piecfe of testimony, given in evidence by Vitchie, that the prisoner told him ^^qu'i] avoit tout avoue au capitaine D'Orsonnens, et qu'il alloit faire au- 'taUt a Milord Selkirk, esperant etre re^u tenroin de la Couronne." Here we have his verbal de- termination to nteike a disclosure of the murder, I beg pardon, of what he knew of the dtaih o( Mr. 'Keveny, and we must not, in considering the ad- missibility of this confession, lose si^htoi thisevi- 'dence, that he had previously avowed his inten- ' tjon of making a confession to a magistrate, be- cause MacNally says again, rule lOtbt page 45,— ^^ It has been determined thdt whet% tna accused m 275 mid Bit it n in ami- the nfe8« I 5 cvi- nissi- L con- is of Id be idaled renffth , what L is the s tried, id Mac e nth, ridence, leration credit." ibes the entering luld le- larkahle Biakei a confession in conversation, and afterward* makes another confession before a magistrate, act- ing judicially by taking the same in writing, the> conversation, or parole confession, may be given in evidence,*' but not if it has not been given free- ly and voluntarily. The statute of Philip and Mary requires that a magistrate shall proceed to examine any person brought before him on a charge of felony, by putting such Questions to the prisoner and those who brought nim before the justice, as, in his legal discretion, shall seem ne- cessary, and that this examination shall be taken down in writing, and old writers say, shall be signed. Hence the necessity of producing the magistrate. He puts the questions, his clerk, if be nas one, writes down tne answers, therefore MacNally says, page 41, rule 7th, that on the principle that ^* tne best evidence the nature of the case affords is the only evidence that can be receiv- ed, the proof of such examinations of the prison- er must be made either by the justice of the peace, or the coroner, who took them, or the clerk who wrote them down, that they are the true sub- stance of what the prisoner confessed." The necessity for producing the magistrate is not, ac- cording to the vulgar opinion, to prove identity, but that the paper offered on the trial in evidence is the substance of what the prisoner had confes- sed before him in his examination previous to com- mitment or bailment. But this is quite a different case; this is not the act of a magistrate, not the act o( the clerk to a magistrate, it is the act of the prisoner himself, following up the intention he had antecedently expressed to Vitchie of mak- ing a confiission of all he knew relative to the death of Keveny, he writes the declaration with iiis own hand, which is now produced in evidence agaiust him. There can not therefore be any ne- ' IB m 276 i' • *; \(t .t,l ♦l '> >i:' , jr., f j. . Nl', 5 ii ,'-H, !k oeititf for either magistrate nr clerk to be pro- diiced, for wc have better ; we have the very best, evidence possible. We have the evidence of the pnsoner nimself of what he realij meant to say. Frocecding to tlie evidence of Dr. Allan, what can be stronger? the prisoner hands the paper ihat ho had been, (as Dr. Allan had heard or un- derstood,) Some days previously engaged in p^e- Saring, to the Earl oi Selkirk, who, before De [cinhard signed it, sent for Mr. Dease, a clerk in the same employ as the prisoner, the paper is given into the hands of Mr. Dease, who* reads it, and then asks ^^ De Reinhard is this true ? are the con^tents of this paper true ?''^ and he answers, ^^ they are true," and si^s it, and Mr. Dease and Dr. Allan, and others, who were present, signed it. Under such circumsanccs, can the credit of the paper be for a moment doubted ? can it, flow- mg, as I have shewn it does, from the highest possible source, made by himself, agreeably to a determination he had previously communicated to his old comrade Vitchie, I ^ay, can it for one mo- ment be a question whether or not the Crown are entitled to the benefit of this piece of testimony.^ I think thero can not for a moment. There is no necessity to produce Lord Selkirk, or his clerk, or for any further proof, because we have already the highest possible proof, viz. his own confessions, viva voce, completely substantiated by the fulfil- ment in this confession, written with his own hand, of his avowed deteriaiination to Vitchie of making a confession to Lord Selkirk. On what ground can we reject this confession ? I beg the gentlemen engaged \Xi the defence, to recollect thai this was his declared intention, to recoJlect tliat he was brought ifito the room prior to sign- ing it, to recollect that by one of his own fellow^' •«rv^t6 he was asked if it was true, to recollect pi )ne BQO- )Wn are imony ? ire is no is clerk, already feBsions, »e fulfil- bis own itcbie of in wbat beg the recollect recollect 277 that neither mehade nor promise was made to bin, to recollect that, on the contrayr, he was asked if there was anyr thiny he wished to change, any thing to add, any thing to take awaj, and there- fore it is, prima faeie^ a confession voluntarily made, if it is intended to set up the contrary, it must be proved, but certainly there wis neither menace or promise made at the tim(^ of signing it. I repeat, let it be recollected that he had belorc expressed his intention of making a confession to Lord Selkirk, and that he signed this paper, con- taining a confession before his Lordsnip, and in the presence of one of his own party, asking him at the time, ^^ are the contents ot this paper true ?'' and he answered, ** they are true.*^ Let these cir- cumstances be recollected, and, I ask, is it possi- ble that, under such a continuation of eviaence, we can reject the confession, as a confession at common law. Lord Selkirk, as far as we see, took no examination, the prisoner had prepared a detailed statement of the transactions as they oc- curred, which he delivered to Lord Selkirk, who certified it to have been so delivered by the pri- soner, as his account of the -transaction. In mv judgment, it is a manifest continuation of his ori- ginal intention of making a confession. . Wherever we find him^ from the moment he arrived at the encampment, as testified by the two yoyagerg, whenever we meet him in conversation with his friends, we find he persists in the same story, down to Vitchie, to whom he explains the motive for his conduct. He comes at last to Lord Selkirk, and redaces the viva voce narrative to writing, and ikb whole is finished with more than usual caution, four persons being present, one of whom^ wlio mighi ^reaaonabhr be supposed to be favourable to the prisoner, Mr. Dease, reads the paper, aekt iaiD) ^ Rtti^rd is tin* true ?'^ a» if he nad said, /'I km V 'H w ■>'i i 1 4 275 <* did you so kill Mr. Keven j ?" and he says, " yes it is, 1 did/* He then deliberately signed it, and the others witnessed his signing. As a confession made before these persons it must be received. Had it been made only viva voce, it would have been a ffood confession at common law, and it can not be mvalidated by a circumstance that clothes it with additional strength. It is not received as an examination under the statute of Philip and Mary, taken before a magistrate, but as the prisoner's confession at common law, made in his own hand writing, and that part of it must be received. The remainder we have nothing to de with, we only take his own act, that which is in his own hand-writing is evidence to go to the jury, the other part is not. .Mr, Justice Bowen, — This is a proposition so plain, that it is quite unnecessary for me to add to the observations of his honour the Chief Justice, with whom I entirely agree that we can not reject this paper, under the dinerent circumstances which attend it ; circumstances, in my opinion, much stronger than usually attend confessions. The prisoner wrote his own confession, nothing can be stronger evidence than such a confession. Never- theless his. writing his own confession, and Doctor Allan knowing, three days before, that he was en- gaged upon it, may open the door to the prisoner's counsel to shew under what circumstances it was made, but at present I am clearly of opinion that we are bound to admit it, but our doing so does not preclude you from shewing, from other circum- stances, which have not yet appeared in evidence, that, though we receive it now, yet that it ought Dot to be let go to the jury, but tdl these circum- stances are in evidence, I consider it a good cod- fession and legally entitled to be admitted. Mr^ iS/uar^.— -The confession was certainly made « yes ;, and iession ;eived. I have it can clothes das an I Mary, isoner's in hand eceived. nth, we his own ury, the sition so to add to f Justice, ttot reject ces which on, mucb [IS. The [ig can be . Never- nd Doctor hewasen- . prisoner's ices it was pinion that ng so does lev circum- n evidence, lat it ought ese circum- good con- tted. tainly made 27f undf)^ the hope of pardon^ and of being brought forward as an evidence on the part of the- Crown. CMef Justice Sewell, — That is merely his own statement, and can go for nothing, but you may prove any thing you can^ We do not shut the door against your destroying this confession. We only say ih^U prima facie, it must be received, but thit is not intended to preclude you from shewing, any thing to oblige us, by destroying the confession, to tell the jury that they are to lay it aside in toio» Examination resumed by the Attorney-Generttt, Morneij-General^-ls this the paper which the prisoner signed in your presence r Dr» AUan. — It is. I s^w the prisoner at the bar aign it. It is in his hand-writing, and is signed iu two places, in the one Charles Reinhard, s^pd in the other Charles De Reinhard. •<.>^;- The paper (see Appendix Z).) was then put in and read, the Chief Jmtiee directing the clerk of the Crown to read only that which was the- prisoner's own hand" writing, and not the appendage, or certificate, begin-! ning, ^^ Before me, Thomas, Earl of Selkirk,''^ Attorney-General. — Is the appendage or certifi- cate in the hand-vn'iting of the Earl of Seltirk? ' Dr, Allan, — No. It was written by Mr. Becher. Chief Justice Sewell, — You can not put that ques- tion. We have nothing to do with it. We only know the paper as containing the confession of the prisoner, which is at common law admissible evi- dence, and we have received it as such, but we have nothing to do with the Earl of Selkirk. J^WonMy-Gcnera/.— That is the case on the part •f the Crown. Question by a Juryman,^ wish to ask th<^ wit il ' ^ ti! ': f ■■ '*■■*:'; • " '1 ; , i; ■ :/,*; \. i^*' ■• • ;■•% ', Sj' ►s. !\^'i IT-- ■ ■% "•f 4 .F J 28v I168S ^bisiher befdre thepifsoner eiigh^d the i%er« ikrreadit? Dr. AUan, — Yes; I read it, not out lottd^ or to Ihe prisoner, htit I read it to myself. Juryman, — Is it now in the same state? Dr. JlUan. — Yes, except the endorsement Cross examination conducted by Mr. Stuart. Mr. Stuart. — ^Was Lord Selkirk at the time jou «peak of this confession being made, in possession of Fort William, and had he been so for some time previous ? Dr. jSlUm. — Lord Selkirk was then, and bad heen for some time, in possession of Fort William. JUr. Stuart, — ^How long had De Reinhard been at Fort William ra'evious to bis signing the paper ? />r. •^Han. — About a week, I beliete. I under- stood he arrived at Fort William about a week be^ fore, but I was not there when he arrived. Mr. Stuart,' — ^How was he livibg? Was he in close confinement ; was he guarded r Dr. AUan.' — He was living in a ro6m with ano- ther fellowHseijeant of the same regiment There were no sentinels over him. Mr. Stuart, — ^What time of day was it when the paper was signed and vdelivered to Lord Selkirk? Dr. Jllian,-^t was delivered in the evening, about seven o'clock. It was duisk, I recollect, and I should suppose about that hour. Mr. iS/Mar/.— Had you ever seen this, or any paper like it, before the ^day it puiports to have been signed ? Dr, Attan, — I had not seen either this t>aper, or any other like \U previous to the 28th oi October, which was the day it was signed and .deliVerd to Lord Selkirk. Mr^ Stuart. — ^You said, I think, that you knew S81 de was preparing a e6kif6Bftioo; did yoit khow fhat from captain Matthey ? had you sny conyertBatioa with captain Matthey on the eubjeet ? t)r. JUan, — I knew a ftw days before, that h^ was writing something, and I may possibly hay# spoken to captain Matthey about it, but I did not see the paper till I saw it on the 28th of October, when it was signed. Mr, Stuart. — Do you not know, Sir, that thd original of this pretended confession was written hj captain MatUiey, and that De Reinhard only copied it? Dr, Man,-^! do n6t know that the ^iginal of this paper was written by captain Matthey, and copied fey De Reinhard. Mr. Stuart,— 'f^or any similar paper ? Dr, Allan, — No, nor any similar paper. Mr. Stuart. — Oaptain Matthey, I oelieve, had the management of att the afiairs at Fort Wiiliamy at the time you were there ? Dr. AUan. — Captain Matthey regulated the aA fairs at Fort William. Mr. Stuart. — This paper, was it delivered to Lord Selkirk as an inaividual, or in his quality of ^ magistrate .^ >, -u v Dr. AUan.'^lt was laid before the Ea^pl of Sel- kirk in the capacity of a magistrate. Mr. Siuart. — De Reinhard, I imagine* on his arrival at the fort, was taken before the Earl ; was he not ? Dr. AHan.-^ do not know whether the prison- er was taken before Lord Selkii^k at the time of his arrival at Fort William. I was tiot there at that time. Mr. jS/uarif.— He must h«ve seen Lord Selkirk before that time, I presume. He would hardly be a we^k, I suppose^ 0^t Fort WiHiam, without see- ing LordSefkriii M !«■ '■ :>l hi \n wm mm 282 ^ Dr. •fiZtm.-^I dare say that lie did. I sJbou|d aot think that he would be so long as a week with- ' out seeing Lord Selkirk, but I can not give evi- dence to that point, as I was not there myself at the time. ' Mr. Stuart, — I have done with Dr. Allan. > ^ttomey^Generd, — ^Where is captain Matthey, Sir, at present .'^ is he within the jurisdiction of this Court ? rDr. AUan. — Captain Matthey is at Montreal. Mr. Stuart,^^! nave one more question* When, Sir, did you leave Fort William r Dr. jUlan.-^! left FortiWilUam on the I7th of May 1817. Mr. Stuart. -^Vid you reside at Fort William from the time of your going there in 1816, till May, 1817. JDr. Allan. — ^I generally resided there during that period, but not uniformly. . I was sometimei a good many miles distant. DEFENCE. 7%« counsel for the prisoner applying to the Court 4o adjourn for a short time to enable them to arrangi the course of examination of their witnesses^ it was adjourned for an hour and a half during which inter* val the jury were to take their customary refreshment. The Court was accordingly adjourned to half past •ne o'^clock^ P.M. Jli which hour the Court re^assnmhled and the jury having been called over^ and being present. •Mr. ■■,i' ij3iii> :■■ I.. 184 «rmed with swords and pistols ; the maskets, ge* nerstlljr speaking, had baronets attached to thetn, and the force had alto^ther the appearance of a military force. Captain D'Orsonnens was at the head of the force which arrived at Fort Wilitam, and he waa at the head of the first party that en- tered by force into Fort Williaro. On tne evening of the 1 2th of Auffust, we distinctly saw the men belonging to the Tate De Meuron regiment clean- ing their arms, and observed them plant a can- Jtton against Fort William. They were on the other side of the river, but we could see them very l^lainly fron» the fort. At the moment of their ar- rival at Fort William, and before they entered the 4p,rt, a :bugle was sounded, and the men huz- zaed, and cried » aux armes, ai» armes, et aux canons." They then rushed into the fort, and seized two pieces of cannon which were against the mess-house, and planted them in the middle of the square, which was a commanding position. It was a position which commanded the entry into the fort. They loaded the cannon. The men UOder captain D'Orsonncns made a great noise, and were exceedingly outrageous and abusive, and captain D'Orsonnens behaved in a very vio- lent manner. I heard him threaten Mr. John M'Donald, a partner in the North- West Compa- ny, and saw him seize him with one hand, and in the other he had a pistolf which he pat to th« ear of Mr. M'Donald. Solicitor General. — ^This surely can not be evi- ^nce to repel a charge of murder against the pri- soner at the bar, nor do I see that it can havt any effect at all on the case. Chief Justice Seweli. — Nor can it, unless it is ckarly brought up to the knowledge ofthepri- aoner, and ^en it will form a question for the ju- ty to det«ri»ifie, wtiait influ«Dce that knowledge m:':^'? 284 would have upon hii mind. We shall see pre* seotir to what it is to lead. Mr, Siuart. — I can have no hesitation ill imtne- diateij ioformiog mj learned friend, the Solicitor General, what is the object I have in view in the course of examination I am pursuing. From cap- tain D^Orsonnens's testimony, it might also be in- ferred that the fort was given up voluntarily. It will, I am sure, be in the recollection of the Court that, in his examination, captain D'Orsonnens de- scribed himself as a simple individual. I wish, to prove that he was not there ais a private gentle- man, but that he was at the head a military force, that he was not there, as from his represention we might be induced to imagine, solus cum solo, I shall exhibit such direct evidence as to the con- duct of captain D'^Orsonnens that it must material- ly afiect ttie credibility of his testimony* 1 will put the direct question to the witness. Was cap- tain D'Orsonoens armed, and did he act as the head of a military force? did he command it? Mr, J^VTatish, — Captain D'Orsonnens was arm- ed; he had a sword and pistols ; he commanded as the head of an armed body. The officers were dressed in the dbiform of the late De Meuron re- giment, and captain D'Orsonnens himself wore a grey military great coat. Some time after the fort had been taken possession of, a reinforcement ar- rived under the command of captain Matthey, about twenty of whom, with captain Matthey, kept possession of the fort that night, and the next day sentinels were placed all over the fort. On the arrival of captain Matthey, and before the arrival of Lord Selkirk, the sentinels were placed over the fort. Captain Matthey took the com- mand oo his arrival at Fort William, and he ar- rived the same day as captain D'Oraonnens, h« came in the aftemnoon. m m ¥ '.l-i '! i P'i;i::|J|iH' i mi'- '^'i'' 286 Solieiior General — I beg pardon for interrupting Kiy learned friend, but I believe at this time, cap^ tain D'Orsonnens was not there, and as this evi- dence is intended to destroy the credit of captain D'Orsonnens, it is necessary that we should clear- ly understand that we have nothing brought for- ward, except when captain D^Orsonnens was pre- sent. Chief Justice SeweU, — I really can not see what you can have more than you have got. You have obtained the substantive fact, that Fort William was taken by force, (I am speaking to the gentle- men engaged in the defence,) what do you wish for more } It is taken by armed men, cannon are planted, sentinels are placed; what more com- plete possession could be obtained of a place than this? Mr, Stuart. — But we consider it necessary, with deference to your honour, to shew not merely that it was taken possession of forcibly, but that it was retained possession of for a considerable time. Chief Justice SewelL — ^Well, put the general question then ; how long was it kept possession of, and you come at the point a^ once. The question being put, Mr, M^Tavish, — I am not, of my own know- ledge, able to say how long Lord Selkirk retained possession of Fort William. I left it on the 4th of September, and at that time it was in posses- sion of the armed force together with the whole of the property. Fort William is the grand depot of the Nortn-West Company; all the equipments for the interior, and all the returns, pass through Fort William. From the 13th of August till the 4th of l^eptember, the day I left, there was no communication with the Indian tefritory for tht Nortli- West Company, it was entirely cut off. 287 i . CrosS'exnnumti&i conducted hy the AttWMy'G enrol. Mr, J^PTm^ish-^kx the time Fort William wai taken there wav^ upwards of a hundred dien Ihe. > . perhaps in anrl -ibout the fort, there might be up* ivards of two luu dred men. Thcj were not arm- ed, neither wej the cannon loaded. There was no resistance made, nor any opposition further than this e one o'^ the gentlemen belonging to the North- West Com )any said that they could not think of admittinrt so many armed men into the fort, till they knew what had been done with Mr. M^Gillivray and the t^ti ; r gentlemen who had gone across the river, TIk gates were opened, and there was no resist. nrn^ knade. Mr. McDonald held one of the gaic:» a< hi^ left hand, and I was standing by him. Thbi* > was no violence used, except by captain D'Orsonr-teus. I did not see the gate slapped in the face of an/ body. I was stand* ing at the door of the gate, oii^'y a few paces from mr, M'Donald, and I did not sec I'm shut the ffate. At the time captain D'Orsonnen 3 udved, fwas at the gate. I did not know at the time th but I now wi^h to shew ^hat there was no ▼iolence used beyond what v/o!^ necessary to en- force the execution of a civil process, which had been resisted, and I consid^^ we aio entitled to do so. Chief Justice SewelL — ^W^, wished to keep this -out upon the e^fiaminatioivi" chief, it was insisted ■upon being gone into, ai^d now I suppose must be permitted in cross-exanimation. Mr, /S/uar/.— We thought it very material evi- 4lence, and we still think it so. As to the warrant that the learned Solicitor General is enquiring about, I care not a straw about it. If a warrant existed, it jc^n be no justification for the conduct pursued, on the contrary, it greatly enhances the crime. What ! is a warrant issueci against A. B. C. D. E. and F. to justify an appropriation of pro- perty, a seizure of guns, and an occupation of stores, belonging to the great commercial rivals of the very magistrate who issued it, and whose conduct has so largely contributed to all the evils ♦%e have to deplore. jdttomey-General.'^The line of defence taken hj my learned friend is certainly a very. singular one. He would induce us to believe that there was a system of terror produced similar to that which is caused by the sacking of a town. My learned friend's statement is perfectly terrific. Pistols t» ild ill- 5 of ses- pro- ipos- was 3is no o en- i had led to p this \si&ted lusibc jat evi- ^arrant quiring arrant ouduct iccs the X A. B. of pro- ition of kl rivals _ whose [he evil* lakenhy liar one. je was a Iwhich is learned pistols t? 289 heads, the taking of cannon, and [)lanting o lui to command the gate, and all this to p* )pl», who, according his account of the matter, made no resistance whatever. JIfr. Stuart. — That is our defence, and we will prove it, and prove that all these outrages were well known to De Reinhard. Cross-examination reiumed by the Attomey*GentraL Mr.M^Tafiish.-^kiier the fort was taken, I knew of a warrant to arrest some persons on a charge of conspiracy. The names were all in one warrant, which Was signed, Selkirk, and was against some of the partners of the North-West Company. I then saw some persons acting as constables, hut I did not ercviously. The men under command of captain rOrsonnens, besides his violence in putting .the pistol to Mr. M'Doneirs head, seizea Mr% John M'Donald. and Mr. Allan McDonald, two of the partners of the North-West Company, and made them prisoners, by putting sentmels over them, and the day after, I understood, they were taken before Lord Selkirk. His Lordship did not tell me that he was actinff as k magistrate. Two dayg after thtei fort was taken, I was forbid by captain Matthey to go out of it^ or to speak to any of the servants of the North-West Company. I consi* dered myself as a prisoner to a military force. We were treated like military prisoners; we were treated with every indignity. I was forbid, at my peril, to speak to any of the servants of the North-West Company. I was confined to limits in the fort which 1 was forbid by captain Matthey to leave. I slept in the same bed and eat in the same room as i had previously done, but I wai forbid to go oui. We were commanded in a mili- tary manner. Guard was fegnlarly mounted in i7-^ |;^^H'7 'If I y ■'It ! ,';!?; f :|)l »l,.1 Ike fort, and I oomidened viTaelf as « miKtarf liiwooer. This force oonsisted principally of A>- fi^Diffiiers, and I took thom for soldiers. If ihej had beep drest in black clothes, or not in uniform, I should have considered theoi well trained to the use of arms, and very eii^pert in military manoeuvres. Fort William is the principal depot of the North- West Company. Tne correspondence and nrin- bipal books of the company are kept there. Per- sons going into the interior, generally leave their wea^hg apparel and heavy baggage there. 1 did JDot see the persons who were arrested at the time .theiibrtwas taken go away in the custody of con- tstables, but I did see them go With sofdiers. I rtobk them to be soldiers, they wisre in uDiform iand armed, but I do not know whether they were ^n the ipay of His Majesty. I know of an express arriving at Fort William with the iproclamation of •Sir John Coape Sherbrooke, and I asked, and was Tefiitsed, .permission by Lord S^lkii'k to send th^m ^into rthe interior. . £!hief Jvsiice SetueiL — When did it arrive at Fbrt William .J» Mr. J&T 7WmA.>-*I can tell if Permitted to refer -to a deposition whidi I «ade before the Chief Justice of Upper Canada. I peroeive they arriv- «ed in aoanoe on the '22diof August : there were -anuniber of them liddressed ta^^entlemen holdii^ 'cotnmissions as magistrates in the interior, aada 'number of blank ones. 1 asked Lord ^kkirk for «iien and canoes to send them forward, but I wei 'refused. I do not know wrheiher Lord Selkirk ^ent dieln or noit. I know Mr. Pritchard, and I »lcflk>w^fhat he left Fort Williaip ; but I do not ikinow diat he took tlie prodamations. I do not »difnk our gentlemen received their^s from hiia. MraJmsiice Bimm.'-^iyid 'Mr. Pritebard ^ ^ bouttbftt time? «tim6n», th^ nckor^ I dtHiroy h\i evidetio^, attd m ^fopoi^tion &s I de^ttof that,* i Wedben the cag« on tb6 part of the Crd^nv ttvd strengthen the dis- fence oi the pr2i^6n^l kidkmiok ^mnUa By Mr. VdnfiU6H. ♦ Bbmdin.'^A c^ feMs il m'a dit qti'il me iiehdroit i^sfibh^able de roa tj6, ^ le fifti^ on d'sltifi-e acci- dent, prenort d^h^ \& chgnti^r. I> kindeinaiit Viii enCor€! vu le cslp'titine D^Oritoiideds, ^t eh toti- Afiq^eiice de6 dBsitrvatidns qde je tmsoii j'^i ^t£ %hv6j^ ^ Nutre (3ot^ d^ k riViSre; J'ai f u h Fort iVill&tnbfis. lUioii j)fis. 11 ^toii prid par tine force mtiiisurei kt le cdpitahl^ O'Of'i^onnehs la commandbii Jl^. ViMfels(m»^^k^ht vbiis ^bnndis^nc^ tfae U tapitaine D'Orfibtinehs i dit d\i± petddHaid Hii servibe de k Cbihb^^bie qu^il s«roit nri^nx de 1^ duitter,' on kfi^ lii ihesii^urfi dn Nbrd-Ouesi «tbieni des rebellbfi^ bli qtle U;blr ^ommercft jitoii fini. Bhtldin.'-r^ k dit mm mmt diei i'eheJld Si— — Ht*^) Sob'citor Ger^ral^^l objbbt, tH Utd;, to this lih^ of evidence. I do not see what captain D'Orson* nens^s condact, at thd time Fbrt WiUiii&i wds tak* («*)C. B. — At tbht time he told mem would hold mean- ewerable at the peril of mjr life, if fire, or zny other actiideDti should happen in the canoe-^ard. On the following da^ I saw captain D'Orsonnens again, ^nd in conseaiiencie of the remarb I made, I was sent to the other side of me river. 1 saw Fort William taken. It was taken by a militaiy foroe, and (captain D'Orsonnens commanded it. Mr, V. F — Is it within jrottr khoWle^e thAt ci^tain D'Or- iofihens sdld to the persons itt thife itrvieto of tbfe <^itdbany, that it ftroiild be best to leave th^tt^ <^ ttAt th^ jeenttelneii of the JKorth-West ivere rebels, or thiit (bdf fr^ W£ at iA tod? (C. B.--lie said that tfaiey #^ rebels, uid- r- m roit ifcci- fcott- \m tort tairei tiie 11 deU Ouesi ^ UtoU ly 1 saw saw Fort ta^tain iin D'Or- ^, that BH of the •n, lta» to do \vith this Qase» aad still Itsa ha« thi« prel«ii(kd endeavour t^ seduce and debaupb, af mf kanted friend calls it, he servants of th^ o« ther cQBDpanj. I object ta this sort of exaoiinatkMi^ Mr. yanfebm.-'^j learned friend is too tft^^ej for the witness's answer is taken down. Solicitor GeneraL — I beg my learned friend*s pardon, but I am in time sufficient. I object, if ne had answered the question, to his answer gch ing to the jurj, or being on jour honour's notes, for it is not oalj inadmissible, but absurd, to sav that any private individual's misconduct can be evi- dence to eiculpate a piisoner from a charge of murder. What if he did seduce th^ servants of the North- West ^Coinpanj, that is Bot to excuU pate another of their servants from a charge of murder. But my learned friejnd says that he pur*' fues this course to impeach the credibility oi the witness on the part of the Crown, but the learned gentleman must be very well aware that his credi- bility can not be attacked in that way; there are various ways of impeaching the general credit of a witness, hut proving that a fort was taken or that servants were seduced by him is not one of them. Chi$fJmiict SeweU,-^The question relative to the fort is not so, Mr. Solicitor, it is not to gener- al credit, or I should certainly be with you. Biit the question is to^a speciiic declaration as to a mat- ter of fact* which has beep allowed as evidence, * and to which captain D'Orsonnens has been- exa^ mined. •Wr. Jus^ce ffowenj-^li h certainly not to th^ general credit of captain P'Orsonnens, \i\ii to % imrticular fact* He swore distinctly that he did fibt tqow that Fort William was taken by an arm- ed force, because he did not see Lordf Se^j^irl^ take it. Now this witness swears directly ' tp ^ A I? -■ ■ ■ 1 'i .Hl.i ■■■■ ,|P»* 296 contrary, for he fiwears, not only that he saw it taken, but further, that h^ headed the force by lyhich it was taken. Whether the question rela- tive to seducing the servants ou^ht to be allowed, I donH know, but I think not. If it has been asked, and was answered in the negative, then perhaps you ought., Jklr.ranfelson.*—-! shall not press it, I have done with this witness* '''WW mm ' cross-examination condiicted by the Solicitor General Bhndin, — J'ai vu les gens de Milord Selkirk en- trer avec capitaine D'Orsonnens, parceque j'ai inont6 les escaliers \k oii je travaillois. Je croyois que le bruit fut occasionn^ par des gens qui se bat-r toient, et c'est alors que j'ai vu les gens prendre le ibrt tout au clair. Je n'ai pas vu un connetable. Je suis sur que j^ai vu le capitaine D'Orsonnens en- trer avec le monde. Je ne sais pas qu^il a 6(e un capitaine dans le regiment de Meuron, ni je ne sals Eas qu'il £toit connetable au terns que le capitaine ^'Orsonnens entroit au fort. Je n'ai pas vu de connetable. Je ne sais pas que le capitaine D'Or- sonnens entroit comme connetable. ll sembloit e* tre soldat. Je connoissois le captaine D'Orson- neps pour I'ayoir yu auparavant.(* ") ('<>) I saw ihe people of my Lord Selkirk enter with captain D'Orsonnens, because I ascended the stairs at the place where I was workiifg. I thought that the noise arose from people fight- ing, and it was then that I saw the people take the fort quite distinctly. I did not see a constable. | am sure that I saw cap- tain D'Orsonnens enter along with the people. I do not know that be has been a captain in the regiment of Meuron, nor I do not know that he was constable at the time captain D'Orsonnens entered the fort. I did not see any constable. I do not know that captain D'Orsonnens entered as constable. He looked like a soldier. I knew captain D'Orsonpens from baying seen l^im before. ^:.;. ?ii' 297 LOUIS LABISSONIERE, Sworn, And examined by Mr, Vallihe de St. Rial, Labissioniere, — M on nom est Louis Labissoniere. Dans le mols d'Aout, 1816, j'^tois k Fort William, en quality de vojageur employ6 par la Compaffoie du Nord-Ouest. Je me rappelle le treizieme d'A- oiit. Ce jour la nous ^tions tous pris prisonniers par le monde commande par le capitaine D^Orson-* nons, et le capitaine Matthej. Nous etions dans le fort et dehors le fort, soixante ou quatre-vingt hommes, peut-etre raoins, peut-etre plus: je ne puis pas dire le nombre exactement. Nous e- tions pris prisonniers dans le Fort William par le capitaine D^Orsonncns et le capitaine Matthej, qui nous ont defendu de sortir du fort. A chaque porte qui sortit du fort ils ont mis des scntinelies pour nous empecher de sortir. Je ne puis pas dire po- sitivement qui c'etoit qui comm^ndoit, mais il m'a paru, et il a paru a nous tous, qui'ils ^toient com- mandes par le capitaine D^Orsonnens, et le capi- taine Matthejr. Le Lord Selkirk arriva a cet en- droit avant que le fort a kte pris mais il n'a p^S; entre au fort que quelques jours apres. Je ne puis pas dire combien, peut-etre deux ou trpis jours 9- pres. Le jour que le fort etoit pris ils ont pris possession du bureau ainsi que de tout le fort. Ils etoient bien arm6s avec des fusils et d^s bajonettes au bout. Apres que les autres s'y sont joints ils etoient peut-etre deux cent hommes ou plus. La plus grande partie Etoient habillj§e en rouge, et m'ont paru comme soldats. Mr, VaUikre de St RSaL-^Souvenez vous qu^'ls TOUS ont dit quelle seroit la consequence si on les opposoit?(*') (^*) My name is Louis Labisaoniere. In the montb of Au- {uit, 1816, I wu at JPoti William, in the capacity of voyageur li Iff .'!' ■* t J* • .•:l'' fi9i Chief Jmdee Sn^lL — Sur«l}r jrou do n«t think you can put a questicio like that, nor can it be at all necessary for you. Their actions spoke loud enough, their was no occasion for words. I can not see what you would desire more. Mr* Justice Bowm. — Surely you have sufficient •fidence •( the fac;t of the forcible taking posses- sion of the fort. Upwards of a hundred, or per* ^ haps two hundred^ armed men with caoaon» &c. were certainly not playing at soldiers. Exammaiion resumed btf Mr. VaUihre de Si. Rial Ijobissomere.'^^tLVolB beaucoup de peur, et il y avoit one peur g^nerale. J'ai connoissance qoM y avoit de nos gens qui furent mises en prison, mail je ne puis pas dire qu'il y avoit un nomm6 Morri- son emprisonne par le capitaine D^Orsonneos, pour quelqueii paroles qu'il a dit. L'Etang a et6 aussi employed by the North- West Company. I reeomct (he I3tl of Augutt. Oo that day ire were all taken prisoners by tb« people comaaanded by captain D*Ononnens and captain Mat- they. We were, in the fort and out of the forf, sixty or eieh- ty men, perliaps less, perhaps more. I can not tell the number preciselr. We were taken prisoners In Fort Wriliam by cap- lain D'drsooneos and captain Matthey, who ordered us not ts atir out of the fort. They placed sentinels at each gate that «went out of the fort, to prevent us from going out. I can not 4ay positively who it was that fommanded, but it appeared to me, and it appeared to us all, that they were commanded bj .captain D'Orsonnens and captain Matthey. Lord l^lkirk came 4o that part before the fort was taken, but he did not enter the fort till some days aAerwards. I can not say how many, peihaps two or three days after. The day the fort was taken, they to^ possession of the counting-honse together with tiie fort. They w^re weU armed with musquets and fixed bayonets. After the others had joined there were perhaps two hundred men or more. The greatest part of them were dressed in^ red, and they appear- ed to me like soldiers. Mr. r. de St. I?.-— Do you remember that t^ey told you what the ctost^Miiee woold be, if tfaey wert opposed* :;: k 5m fiDprisoime, (mais je ne sais pas par qui,) dans If meine teins. Je n^ai pad Cdnnoi^sahce qualid letf geos partirent pour Montreal, mais je sais que comiDe le nombre^des vojageurs 6toit dimlrtu^ par . ceox qui alloient a Montreal, id Aombre des senti^ nelles a £iiflnu6 aussi. En p^rknt de gens, j4 parle des gens da Ndrd-Ouest qui eioietiit ^ttipri- soDoees par fe capitaine D^Orsoniiens. J^ti Coil* noissance que le capitaine D^Orsonneils ae pft>po- soit de prendre le fort diji Lac la Ploiej. Quelquetf jours avant dialler au Lac la Pluie le capitain^ lI'OrBooDens a dit, ei je Pai enteiidu, au^il dioit hifemer au Lac la t'luie, qu^il y avoit oeaucouj^ de proYisions dans ce fort la, et qu'il seroit bien la. Au terns qu^il nous parloit de vouloir prendre c# fori, it a ait la dessus^ ** je puis bien le prendre u saiuT aucuD danger, ijoes gens sont fut6s, et j^ai *^ des canons.'^ Pai vu le capitaine D^Orsonnena partir arec ses gens pour le Lac la Pluie, et il amena a^ec lui &§ cations qui ^toi^tit months. 11 J ayoit deux pieces de canons qui avoient ^ih pri- ses de Fort William, et elles appartenoient a la Cbmpaguie dn Nord-Ouest. £lle^ avoient ^te prises aux coins de leur grande maison, mais je ne puis pas oie rappeller au juste si elles ^toi^nt de fer ou de cuivre. Le capitaine D^Orsonnens a dit, et je I'ai entendu, que les messieurs du Nord- Ouest etoient envojes a Montreal, et que la plus belle grace quHls pourroient attendre seroit d^||ria peodus. (**) C) t Was rtry mudi afiraid, and tb^re was a general panie, \mwe a knoirki^ that some of our people were put in prison^ bat I can not sajr tbat there was one nained Morrison imprisoned bf captain D'Cksonnens for some words he bad spc^efi. L*£lao§ #aa mo nDpnaooed at the same time, but I do not know hj wboB. I have no knowledge of when the people departed for Hontfeal, but I know that as tbe number of voyageurs was di« Binisbed bj Unse who wept to Montreal, tbo number <»f fleoti'* / i 'i ■/* \* \ "% ■j. . ' i i .» -.il. m ^ "3 '-i 300 K.I '^' J ! ^. CrosS'txaminaiion conducted by the •^itomey'General Labissomere. — Au terns que le capitaine D'Or- «onncns entroit au Fort William, j'y etois dedans. Je lie puis pas dire que le capitaine agissoit com- me un officier de la loi ou connc table. Je ne sail qu'il avoit un warrant a et^cuter. Je n'ai vu au- cun warrant, J'ai vu le capitaine D^Orsonnens quand il est parti avec ses gens pour le Lac la Pluie, et les canons etoient enibarqu^i. lis ^toient montes. Le capitaine D^Orsonncus ne les a pa luonte; ils etoient dej a montes par la Compagnie du Nord-Ouest(") nela was also diminished. When I speak of people, I speak of tbe people of the North- West who were imprisoned by captain D'Orsonnens. I have a knowledge that captain D'Orsonnena Sroposed to himself to take the fort of Lake la Pluie. Some ays before he went to Lake la Pluie, captain D*Orsonnens said, and I heard it, that he was going to winter ai: Lake la Pluie, that there were plenty of provisions in that fort, and that he would be well off there. At the time he talked to us of his intentioD of taking that fort, he said, speaking on that subject, " I can ** take it without any dapg^, my men are dever lellows, and I *Vhave got cannon." I saw captain D'Orsonnens take bis de* parture for Lake la Pluie with his people, and he took cannoD with him which were mounted. There w^r^ two pieces of can- non which had been taken from Fort William,, and they belong- ed to the North- West Company. They were taken from the angles of their great house, but I do not exactly recollect whether thiey were of iron or of brass. Captain D'Orsonnens said, and I b^ard it, that the gentlemen of the North- West were sent to Mont- real, and that the most favourable sentence they could expect, would 1% to be hung. (* 3) At the time captain D'Orsonnena entert^d Fort William, I was in it. I can not say (hat the captain acted as an ofBccrof the law or a constable. I do not know that he bad a warrant to execute. I did not see any warrant. I saw captain D'Orson- ncns when he took his departure with his people for Lake la Pluie, and the cannon were embarked. They were mounted. Captain D'Orsonncns did not mount them ; they were ready mounted, baTiDg beeb moanted by the North- West Company. '<(^ eral •'Or- lans. Dom- i sail a au- nnens ^ac la ttoient > a pas pagn'ie speak of y captaia ^rsonnens e. Some nens said, Pluie, that be would |g intention ,{ it 1 can [ows, and I ^e his de- )ok cannon fces of can- ley belong- \ from the ict whetlwt said, and I .nt 10 Mont- [uld expect. krt "Willia®' [an officer of warrant to fn D'Orson- Uk«laPlu»«« fa. Captam ly moaateo, 391 // being past six o'clock^ the Court was adjourned (ill tO'Tnorrow morning, at eight o\iock, A, M, Wednesday, 27th May, 1818. PRESENT AS BEFORE. The Jury were called over and Mr. WILLIAM MORRISON, Sworn, And examined by Mr, Vanfekon. ' Mr, Morrison, — Mon nom est Guillaume Mor«- risen. J'etois au Fort William au service tonir leur gardes, et ^ flambez kiirs oervelles s^ils sont obslines."— » . «. Quelques jours apres le cs^itaihe D^On^onnens a* j^^*^ nrant assemble ;tous rles gens^et les voyageurs du r- 'Nord^Ouest qul^tiuentiaTors au^fort^ nous a donne ie choix de trois 'choses, premierement, d'entrer <(pour AJilord Selkirk je si|ppose^)ai]^x memes.con- djtions que nous ayions avec le Nord*Ouest, et ^'aller hivemer dans .l?int^rieur, mais je ne saji fas pour qui; secondemeqt, defaire un. voyage au JLac la /Plaief ou troisiemement, de faire deux voj- Ageti aux Milles La*:^, et ensuite se retoumer a ' Alontreal.(^*) jmmmmmmmmmm {'^*) My name isWiUiam Ituvrison. I .was at Fori Wiliian in the service of tl^e North* West,, in 1Q16, and I ^a& there when jmy Lord Selkirk, took pos^eMtioh of it, and it wilt be two yean next AugiMt. It.was taken by a party of men, who appeared in the capacity ^f soldiers, and who .were armed. The arms jreie musquets inth ^ed bayonets. The ^rst appn^cb W91 made in a barge which carried fifteen or twenty mep, and cap* tain J)'Orsonnens was with them. When they were a|l together there were sixty or eighty men. There were officers too, and amongst them, captain D'Onenoei»,jwho was attiie head of^ BOS *^ 3 fait } ont is des estne terns; leureSf )nsieur is nftoi- n senti* iaCeoe^ s^avan* omment egarder xaes, et nes. — ' innens a- igeurs du i a donne d'entrer iineaxon- uest, et ^e ne sail -oyageatt 'euxvoy- ;oumer » L there "^^ The atms ippwiach '»?" lep. aM cap* pcTS too, and ' AUoffM^'Geniral — Your honour ht0 alret«lj de- cided that all this long stornr is not evidcoce.— - I submit that it is a verj unnecessary waste of time* Chief Justice SeweU. — ^I really do not see to what it tcncfs, though I have been unwilling to interrupt the g^entleman, expecting every minute that be would apply it to some part of the case. Mr. VatMsgn* — My verj;nezt question will lyp- ply the whole of what has gone before in the strongest manner, and the Court will, I think) see that we have not unnecessarily occupied its time. advanced partjr which entered the first. There was one Mr. lATherson, and Mr. ATNabb ; but I do not know whether they were officnrs. When they entered I was dose to the gateof the fort, two yards fronorthe gate. I did not hear captain D*Oi:son- oens say any thing, but I beard Mr. M' Donald, one of the Noctb- West partners, request him to go hack, as he had nothing to do there, and the people, or the agents, of the company were ab- -sent. Captain D'Ovs^nncnstbeveupon turned round. He .spoke to hismeo in a laingufge which I djd not understand ; it wasin^t English; and they sounded the bugle, and this force advanced immediatefy into the fort, in double quick time, charging with their muskets and^ bayonets. Mr. M'Donald made no resistance. I can not say what they did in the fort for amoe time, becaHse;! irent out of it. Captain D'Orsooncns placed guards at the gates, sod the North- West people could not, ^or some tioie, either gio in or out ; this continued for three or four hours, when all'bjft- came quiet. ^I know that Mr. DanieP Mackenzie was imprison' cd,/and I ^las itnprisoaed myself for Qvc or six days. Thcfe was a sentinel placed over me, and one day, when. I look^ through th« window, I saw captain D'Orsonnens, who advanced towards \h sentinel and asked bim, " how is it that you suflfer "your pristinei^ to look through their ^windows; make them " keep within their hounds, and blow their brains out if-thoy " are obstinate." A< lew days after^wards captain D^Orsonnens, having assembled all Uie people, and tbevoyageors of the-North- 'West, who weice choii de trois choses ? Mr. Morrison.^-Je Pai demands s'il exigeoit cc- la ? et II a repondu, ** je vous le commaride au nom du Roi.^* II a dit aussi que nous n^avions besoin d'attendrc nos bourgeois ; qu^on ne leur reverroit jamais. L^Etang a £t6 am(m6 devant Milord Sel- kirk pour etre examine. Je suis bien certain qu^il m'a dit, *^ au nom du Roi, jc vous le commande.'y') CrosS'txaminaiion eondueted by the Solidlor General, Solicitor 'General — Have your honours got down what this witness said at the commencement of his examiuation, viz. — that there were from twelve to fifteen men at « first Mr* Justice Bowen, — I have from fifteen to twen- ty men, which was what he said. Solicitor General, It struck me that he said twelve to fifteen, but I certainly must have forgot- ten, as your honours notes say fifteen to twenty. Mr, Morrison, — J^etois a une verge de la porle au terns qu'ils ont eotr6. lis ont entr^ autant quj'ls ont pu par force. La porte n^etoit pas fermup. J'ai mont6 apres a la Riviere Rouge, mais jc n^ai jamais dit aux motifs, ni a qui que ce soit, que ic Lord Selkirk 6toit aux fers, hi qu'jl 6toit garrotte m Fort William. J'ai dit simplement que je Vj ai (•*) Mr. Vk F.—What did ycrti say to captain D'Orsonncw when he gave you the choice of these three things. W. M,-A asked him whether he insisted upon that, and lie Answered, " I command it you in the King's name." He also told us that we had no need to wail for our bourgeois, for we should never see them again. L'Etang was carried before Lord Seilcirk to be examined. I am very certain that ^e said to me, " I com* ** mand it you in the King's nalne.'* ('*) I was one yard from the gate at the time that they eo- ftrt d. They tnteicd, as much as they could) by forct. Tbc ,.:|.M;. tcc- nom esoin erroil ISeU jtneral* it of his ^elve to to twen« he said e forgot- twenty. , \a porle Ant qu'iU 3 ferinee. lis je n'ai it, que ^^ t garrotte le je Vy ai Ip'Orsonncn* I that, and be |» He ateotow Ifor we sMA 1 Loid Se^kiA that they «J 30iS Jihrnej/'General, — I b^g that it may be takefe clown. Mr* MorriswL — Je n^ai jamais dit aux m^stifs ni a aucune autre porsonne que le Grand Chef, le Gouvenicur, avoit envoye des oflfiGiers pour mettre Milord Selkirk aux fers, mais j*ai dit qu^un conne- table alloit monter avec un warrant pour prendre Milord Selkirk^ a ce que j^avois entendu, et rien d^autre cbose. AUomey-Gtnatd, — Regardez oe monsieur^ (Dr. AUatij) le cpnnoittsez-vous ? Mr, Morrisotu^e le connois pour Tavoir vUt malt non pas par nom. Mtorniv-General, — Ne TaTcz-yous pas entendu appel)^ Doctor Allan ? J\Ir^ JHformom-^Ouik Je Pai entendu nomqier Allan. ./^^/omey«>G6nerdl«*-Dottor Allan. A-t-il entri at! fort } Mr, •/Kformoit.-^^-Doctor Allan n^etoit pas pre* sent, k ma connoissance, quand le fort fut pri8.('^) i^Aik forct' Tbt ji;ate was Viol shut. It #ent up )o the R«d IHhrer afterwardf , hut 1 never told the half'breeds, nor any one whomsoever, that Lord Selkirit was in irons, Bor that be was cfaaioed at Fort William. I simpi/ said that I had seen him there. ('V) W. M,-^\ neteir told the half-bmeds, iior any other per- ton, that the Great Chief, the Goremor, had sent officers to put Lord Selkirk in irons, but I said that a constable was coming up with a wamuit to take Lord Selkirk, as I had l^ard, and nothing else. A. 6.~Look at this genllemati, (Or. j^Uon,) do you know him. W, M. — 'I know biro (torn having seen him, but not h.b ■ane. A. (?.— Have you not heard him called Dr. Allan. W, Af.-— Tes, I have heard bim called Allan. A. O. — Dr. Allan, did he enter the fort W. M. — Dr. Allan was not prtwnt, at leait not to my know- ledge, when tht fort was taken. r -'Mi ! if w ,' ■' ':"' '•V'i ^ i^ V ' 306 JEAN CREBASSA, Sworn, ^nd examined by Mr. Stuart, J, t^rebassa, — Je suis coinmls de la Compagnje clu Nord-Ouest, et j'etois tel en 1816, et aupara- vant. Mod poste en 1816 etoit a Bas de la Riviere Winnipic. Chief Justice Seweli. — En quel mois de 1816? J. Crebassa, — Dans les mois d^Aout et de Juil- let. Monsieur Archibald M^Lellan etoit la, il a descendu d'Athabasca, et restoit a ce fort une yartie de Pete. II arriva quel^ue tems en Juillet. 'at connoissance qu^un warrant avoit sortl contre un nomme Oliver Kevenj au Bas de la Riviere. — C'etoit donne par monsieur Norman M'Leod dans le mois d^Aout, 1816, et jecrois sur les plaintes portees par quelques gens qui etbient sous son com- niandement. Apres j^ai vu Keven j au fort en £a» de la Riviere, au mois d'Aout. Mr. Stuart. — Keveny, a-t-il ^t6 mene au fort par consequence de son arret en vertu du warrant que monsieur M^Ledd a sorti ? (*•) SdHcitor'GerieraL — The best evidence will be (»«) /. C. — I am a clerk of the North- West CompaD/, and I was such in 1816, and before. My post in 1816, was at Bas (le la Riviere Winnipic. C. J. S.— Ip what month of 1816. /. C. — In the months of August and July. Mr. Arjcbibali M'Lellan was there. He came down from Athabasca, and re- mained at that fort part of the summer. He arrived some titue in July. I know that a warrant had been issued against one named Oliver Keveny at Bas de la Riviere. It was granted bj Mr. Norman MXeod in th^ month of August, 1816, and I be- lieve upon the complaints of some persons who were under bis command. I afterwards saw KeTeny at Fort Bas de la Tliviere in the same month of August. Mr. S. — Keveny, was he taken to the fort in consequence of his arrest, in virtue of the warrant which Mr. M'Leod had issued. : ^A •TT"" para- iviere 6? B Juil- i, il a rt une contrc rieve. — od dans plaintes on coin- t en Bat au fort warrant will be Lpany, an* [was at Bas -. Arphibali |ca, and le- some time against one t granted by , and 1 be- U under hrt lie la ?jv»«'* isequence of 5 had is»««^" sot the warrant itdelf/ My learned fHend ikips over the most material poitkti namely, the arrest of Mr. Keveny. To see a man after a warrant had heen issued against him^ is no proof that he was arrested upon it. Cfuef Justice SeivelL-^-ABk him whether he saw him at Bas de la Riviere. Crebassa, — Oui, je I'ai vu a Bas de la Riviere.r**) Jittorney^jttwrci, — Did you see the warrant r Crebassa,'~'\ saw the men go after the warrant had been granted by Mr. M'Leod. Attomey-GenemL^^l^hAi is no answer to my auestion. I ask you, upon your oath, did you see le warratit. Just say yes or no? Cr06a«5aw— No, I saw the men go and I heard they went with a warrant Solicitor Gmeral-^-^Then your honour sees it must all be struck out^ for it amounts to nothings being only hearsay evidence. Chi^ Justice SewelL — I do not know that, Mn Solicitor General, this is not the first time we have heard of this narrant. Where, Mr. Crebassa, was this warrant issued ? Crebassa^—Xi Bas je la Riviere. Chief Justice SeweU, — You say that you saw men |ro; who did you see go? Crebassa, — Ve Reinhard and others. Chief Jttstice jSeti;ei/.— Combien ? Crebassa. — Trois, ^ ce que je crois. J'ai en- tendu parler a De Reinhard d^x^cuter un war- rant avec trois hommes.(**) Mr. Justice Bowen,-^l[o\i say you saw Keveny come, when did he come, and who brought him ? (*•) Yes, I saw hioi at Bas de la Kmin. [••)C./. S.^-Howmany? /. C.-^Three, I believe, I he^rd De Reinbaid spoke i; i% txicute a warrant with three men. :f s: r. ■ ■ .3 ■j?'^: v^B 'f'ij ^ { im :. t m %'-' 30$ Crebassa, — Monsieur M'Leod a parti, apre^ qu'il •ortit lo warrant, ppur Athabasca, le roeme jpur; il est parti avant que De Reinhard ^st rev<$ou. (*>') Examination resumtd by Mr. Stuari* CrebasstL^^Je ne connois-pas le noon de bap- t^tue de ce Kevenj, mais ses gens Pappelloieot Oliver Kevehy, a ce qu^on m^a dit Monsieur M^Lellan 6toit d ce £(»rt dans le terns ; le fort de Bas de la Riviere. Monsieur M'Lellan et tous Ics gens du fort ont regu Keveny amicalement. Keve- nv partit du Fort Lac la Pluie. II fut envoye au iVort William comme prisonnier. C'etoit le len- demain qu'rl partit. Quelquee jours apres noug avons appris (") Mr, Justice Bowen.'^Who do you mean by nousf Crebassa.'^Mr, M'Lellan, De Reinhard, myself, and others, who were at the fort of Bas de la Ri<' ▼icrc. Quelques jours apres nous avons appris que (•')/. C. — He was brought in a prisoner by De Reinhard, the prisoner at the bar, ttic same day, I believe ; that is to saj, a person named Iveveoy. C. J. S.— Where v/as Ur. M'Uod ? J, C. — Mr. MXeod i^ent away the same day, afler be bad issued the warrant, tor Athababca. He was gone before De Reiohard returned. V ('^) I do not know the christian name of that K<^veny, but bis people called him Oliv<>r Keveny, as I was told. Mr. M'Lellan was at that fort at the time ; the fori of Bas de la Ri- viere^ BIr. M'Lellan and all th^ people of the fort received . Keveny in a friendly vay. Keveny went away from Fort Lake la Pluie. He was sent to Fort William as a prisoner. It waa on Uie following day that be went away. A few days af- terwards we learnt—— co 'il )ur; CO bap- loient osicur art dc DUslcB Keve- oye au \e len- 38 nouB yjnortsf , myself, e la Ri- Ipris que RcinhaTd, kt is to 8ay» IftcT be bad before De (,evcny, J«* 1 to\d. Mr. kas ae la R'! ort receive* f from Fort iprisoner. »t few d»y« *^- 909 Fort William* ledepdt principal du Nord-Ouest^ a-* roit M pris par Milord Selkirk. De Reinhard y etoh dam le tems, et avoit connoissatice de cette nou* vellc, ainsi que moi. Monsieur Alexander M 'Don- ell 6toit alors a la Riviere Rouj^e, et il a re^u une lettre qii'on lui a envoye pour Finformer de la prise du Fort Williani, et it est descendu en con-^ seqiience immediatement au Bas de la Rivicre.(*^) SoUciior'General — Hoir do jou know that Mr* M'Donell knew it ? J, Cnbasscu — Because I read the letter before it was sent. Examtiaiion continued by Mr* Stuart, «/. Crebassa*'—Aprea son arrivee il y avoit une Cdnsultation tenue pour savoir ce qu'on devoit faire en consequence de la prise du Fort William, et en consequence de cette consultation monsieur M^Lel- lan est parii > n canot avec le prisonniery De Rein- hard, et dV ^ I personnes. Mr.^tuau, — Pout- quel objet? (•*) Chief Justice SewelL — ^Who went with him be- sides? Mr, Stuart, — ^I beg leave to remark that in cross- examination the Crown can extract from him anj (•') A few days afterwards We learnt that l^ort William, th€ principal depot of the Norths West Company had been taken by Lord Selkirk. De Reinhard was there at the time, and was acquainted with this intelligence, as well as m/self. Mr. Alex* ander M'Donell was then at Red River, and he received a let* ter which Was sent hiiti to inform hitt^ of the tapture of Fdrt William^ Md be came down ittihediatiAy in consequence tu Bat de la Riviere. ^ (••) / C.*— After his atrivll fl consuliatlon wast held as in what ought to b^ done in consequence of the capture of Fort William, and in consequence of this consultation, Mr. M*Lel- lan took his departure in a canoe with fhe prisoner, De Rein- hard, and other per^ns. Mr. S.— For what purpose ? * . ¥ r im •■ ■' ■■*!■„ 310 evidence thej think essential, but in producing our testimony to the Court, we have marked out to ourselves a certain course which it is extremely inconvenient to deviate from. CkUf Justice SeweU.'^Mj only object in putting the question was to save time, and in one entry upon my notes, to have the particulars ofthestarU ing of this canoe, which may be a matter of some importance. If to the prejudice of the prisoner, or that it could interfere with your plan, I should not wish it put, but I do t.ot see that it can possi- bly do the one or the other. Mr, Stuart — I will put the question certainly ; who went with Mr. M'Lellan in the canoe, and and what did they go for? J. Crebassa, — ^Monsieur De Reinhard, monsieur Cadotte, monsieur Grant, et d'autres personnes, partoietit dans le canot avec lui, et ils alloient voir s'ils ne rencontreroient pas des canots venant du Fort William avec les marchandises et 6quipements pourTint^rieur; c^est-a-dire pour voir si la com- munication de Fort William avec Pint^rieur ^toit ouverte ou non. Nous avions crainte 'que. Fort William ayant .et6 pris, nos equipements, qu'on at- tendoit d'arriver alors, ne viendroient pas, et c'e- toit un ol^et d^une tres-grande consequence pour nous. Dans ce pays on appele les assemblees te- nues pour consuiter sur les^jQfaires '^des conseils," a Pimitation des Sauvages. J^etois present a ce conseil, ou consultation, tenu a Bas cfe la Riviere, dont j'ai parl^ auparavant. On n'y a pas parle de Keveny a ma connoisaance, mais s^ils ont parle de luer Keveny je m'en serois souvenU. Alexandre M'Donell, Archibald M'Lellan, Cuthbert Grant, Joseph Cadottci, moi-meme, et Charles Pe Rein- hard etoient pr^sens. Mr. Justice Bowen. — ^Y avoit-il d'autres ? ^Cf«6crj«a.-— Qui, Monsieur, mais je ne ine rap out onsieur Bonnes, 5nt voir lant du nementi la com- ur Moit le, Fort m'on at- ;, et c'e- ice pour [bleestc- ient a cc Riviere, parle de parledc Jexandre lit Grant, pe Rcin- 311 ' Selle pas ]es noms. C^^toit le seul conseil tenu \k ans le terns, a ma connoissance, et comme coin- mis principal, je crois quails auroienteu assez de connance de m'avoir appele a aucun conseil t«inu la, et je n'ai pas connoissance d'aucun autre con- seil tenu la alors. Comme commis principal J^ai connoissance de ce conseil, et ce qu'y a ete fait. Je n'ai pas connoissance qu'aucune personne a ce eonseil a dit quelque chose de Keveny, et s'ili avoient parl6 de Keveny^ il faudroit que je le sau- rois. Quand monsieur Keveny est parti, j'ai en- tendu monsieur M'Lellan dire au monde qui le me- noit " d^en avoir bien soin,^^ .et *^ de ne le pas faire de peine.'' Quatre ou cinq jours apres le conseil, monsieur M'Donell s'est retourne a la Riviere Rouge, et en partant il m'a dit qu'on attendoit qu'en consequence de la prise de Fort William, monsieur Keveny reviendroit au Bas de la Riviere, et que dans ce cas, je ferois bien de Penvoyer a la Riviere Rouge comme une place plus commode pour lui, et aussi ou on avoit plus de vivres qu^a notre fort. (•*) («»)/. C— Mr. De Reinhard, Mr. Cadotte, Mr. Grant, and other persons, went in the canoe with him, and they went to «ee whether thejr might not meet any canoes coming from Fort William, with the goods and equipments for the interior ; that is to say, to see whether the communication between Fort Wil- liam and the interior was open or not. We were afraid that, Fort William being taken, our equipments which were then ex- pected to arrive, might not come, and it was a matter of very great consequence to. us. In that country, the meetings which are held in order to consult on matters of business, are called " councils," in imitation of the Indians. I was present et this coun- cil, or consultation, held at Bas de la Riviere, of which I have spoken before. Nothing was said there about Keveny, to my knowledge, but if they had spoken of > Keveny I should have remembered it. Alexander M'Donell, Archibald M*Le!lan Cathbert Grant, Joseph Cadotte, myself, and Charles De Rein bard, were present. Mr. J. £.~ Were thero any others ? *i lu i 7 i 'S'f^WvK '■•■> ^.^immi ' ■■!:/! ■Hi- 'I S12 Cro$S'examina(i&n toniucted hy tfu jftiorne^'Oeneral J. Crebasstt.'^l never saw the warrant of which I have spoken, nor can I say against whom it was issued, hut as I have heen told. The prisoner brought to the fort by De Reinhard abswered to the name of Keveny. I never heard him answer to his christian name, but his people told me Morney-GeneraL — Do not tell us what you Were told, only what you know yourself. /. Cr«6a«ja*--J'ku vu le prisonnier Kevenv, et je Fai parle. J^etois dans la chambre aVec lui. Je ne sais pas de quel pays Keveny ^toit ; il 6toit un grandiiomme (") and of a fair complexion. He was sent from Bas de la Riviere by two small canoes, in the care of one Louis Lacerte, a guide and in* terpreter, vrho had the eommand. Lacerte is a Bois Brul6 or half-breed. There were four or five others who went with him, but whose names I do /. C-<-Yes, Sir, but I do not recollect their names. It was the only council held there at that period, to my knowledge, and as I vras the principal cleric, I believe they vrould have lud isufficieat coi^dence in roe to have called me to any council held there, and f have no knowledge of anjr other council then held there. As principal clerk I have a knowledge of this council and of what was done at it. I have no knowledge that any penon said any thing at this council about Keveny, and if they bad spoke of Keveny 1 must have known it. When Mr. Keveof went away, I beard Mr. M'Lellan say to the people who con- ducted him *' to take good care of him,*' and *' not to give him any offence." Four or five days afler the council, Mr. M'Don- «11 returned to Red River, and on going away, he told me that It was expected that, in consequence of the capture of Fort Wil- liam, Mr. Keveny would come back to Bas de la Riviere, and Ihat in that case, I should do right in sending him to Red River, as a more convenient place for him, and also one where there were more provisions than at our fort. (*") I saw the prisoner Keveny, and I spoke to him. I was in the room with him. I do not know wbat oountrymao Kevenj ^u ; he was a tall man. 313 h\ >ner I to jwer were '?' ct II. Je oit un anoes, nd in* 1 a Bois or five iCB I do ;. It was [lowledge, have liud tuncU held then held [is council my peBon flhcy had [r. Keveor p who con- [o gW« ^'* lid me that If Fort WH- livtcte, and iKcd R»*e'« there there im. l^'* net know. Thej wer« all half-brettds, or Bois Btules. JiOorneff'GeneraL'-^yfdiS he in irons? /. Crc^afjo.-— He was not, to mj knowledge, is irons. wflAmuy-€reRera/.-^DId jou see any irons in the eaooe? y. Cnbassa, — I did not see any. AUomeif'CreMraL — Will jou swear that there were none ? •/. Crtbaua.'^ will swear that I did not see an jt fimd if there had been any I think I should have seen them* AtUmuey-Gmeral — ^Will you undertake to 9weart that he was not in irons when he went away from Bas de la Riviere ? /. Cre6asML— Certainly I will, he was not in irons when be went away, and I never, at any time, saw bim in irons.- We had none at Bas de la Riviere. I never saw any there. He was sent from Bas de la Riviere to Fort William. His people tolcj me be was accused ef badly treating them, ot stabbing eome ef them with a bayonet, but I did not see the wound. When Mr. Keveny was brought to Baa de ]k Riviere he had no baggage brought with faioL After the departure of Keveny his barge with some baggage came to Bas de la Hi vie re, and I saw it Son commis monsieur Collins, demanda permisaioii a monsieur M^Lellan de la mettre' dans im hai^^ard. 11 en a pris Tinventaire, et il Pa mis •dedans. Je o^ai pas vu le mot de Keveny sur le botin, ni grav6 sur un ^^ writing-desk.'* (*^) <^/iDnuy-€neficni/l-^Did you see a :iyritmg-de8k ? /. CreMfsa. — No. {•■») Hit cfeik, Mr. CoUint. asked leave of Mr. M'Lellan t# fot it in as outiioine. He took an inventory of it, and it was put ilk I did Ml see die word Keveny on (he baggage, nor engraved •I a writing desk. 1' nil ^.Z -t ^i; 314 V .'M ...?. ff"'' '♦!• '■ Chief Justice eu;e//.— Then I understand j«u that jou did not see the name of Kevenj on the baggage, neither printed, tvrritten, or engraved on a writmg-desk. J, Crebassa^-f^YeB, Mtorney-GentraL — Did you see any caWes ? /. CrcAcw^a.— Yes, there were four calves, ivhich were killed and eaten by the Indians. I did not eat any of them. I swear that I did not eat any. I was present at the council of which I have spok- en, as a member of it, but I did not give any vote. I was not asked, had I been asked I should have given my opinion. Those I have mentioned before >vere at the council, and I believe Mainville was present also, but I do not recollect right. I gave no vote for I was not asked, and 1 can not saj whether Mainville did or not. There were other Bi)is Brules at the council besides Mainville. L'ob- jet de ce conseil etoit seulement d'envoyer des ca- fiots en avant, pour savoir si les canots avec leg equipements alloient venir de Fort William ou Don, parc^que si on manque de marchandises pour trai- tor avec les Sauvages, et de saines, (fishing-nets,) il faut absolument qu^on p^risse de faim. (")< Mr. Stuart, — I beg tnat may be taken down, it is very important, that, unless they received the supplies which they were expecting, they were exposed to absolute starvation. Jittomcy-Gentral, — I must ask you, upon the oath you have taken, had this council no other object than merely to send off a canoe; >. /. Crebassa. — Le seul objet de ce conseil de com- merce 6toit pour considerer la propri^t^d'envojcr ,i-Vl' (••) The object of this council was solely to send canoes io^ ward, to know whether the canoes with, .the equipments were coining from Fort William or not, because if there is a want of $oods to trade with the Indians^ and of seines, (fishing-nets,) we should absolutely be starved to death. J6U the don ? irhich dnot t any. spok- r vole, have before B was I gave lOt say B other . L'ob- des ca- vec les ou non, )ur trai- nets,) il P •. lown, u ved the ly were he oath \t ohject de com- I'envoycr canoes 4b^ lents were lis a want oi Lnets,) we 315 des canots pour voir s^ils ne renconiraroient pap des canots venant de Fort William, avec les mar- chandises et les ^quipemcnfi, pour empecher d^etre afiam^. Je ne puis pas dire que c'est la coiktume pour les Bois bruits de 8^ass6oir dans un conseil de commerce, mais je sais quMls furent appel^s i jcette occasion. Je n'ai pas entendu parler en con- seil de Kevenj. Le conseil s^asse^oit peut-etre un« demie tieure. Je n'ai pas connoissance d^opposi- ition a la mesure d^envojer un canot. La propo- •sition 6toit faite par monsieur M^Lellan et monsieur M^Donell dialler au Fort William, et personne Pa oppose. Monsieur M'Lellan demandoit qui vou- Joit aller xle bon gre dans \c canot. C^cst tout ce ,qu^j a ete iait. Quelques uns des bois brules ont refuse dV aller par pares8e.C) Momey'Uenercd' — Arejou quite sure that no- thing bu^ indleness prevented them going. Did they not some of them assign a reason ? C^r66af«a.-^ think it ^as nothing but idleness, because they none of them gave any reason,' and I therefore took it to «be idleness tnat prevented them. I know a bois brule named La Pc*nte and he was at th^ council. I do not know that he re- fused to go, or that he gave his reasons for not going. J do not know of his ^l9king a rspe^ch at (>•) The only object of this council of trade, was to consider •f the propriety of sending canoes to see whether they might not meet canoes coming from Fort William with goods and the -equipments, to avoid being famished. I can not say that it is the custom for the half-breedt to sit in a. council of trade, but I Jraoir that they were called upon on this occasion. I did not hear Keveny spoke of in the council. The council sate perhaps /or half an hour. I have no knowledge of any opposition lo the measure of sending a canoe. The proposal was made by Mr. M'Lelian and Mr. M*Donell, to go to Fort William and no body opposed it. Mr. M'Lellan enquired who would volunteer to gp in the canoe. This was all that was done. Some of the^ hall^ breeds refused to^go from idleness. 316 / ik i*' f w M ml thtf council, tior did I hear him saj that he would not fight against the King^s troops. 1 do not know nis father, or that he was tried hj a court ttmrtial for advising his son not to co. Mr. Archi- bald M'Lellan, Mr. Reinhard, Mr. Grant, ond Mr. Cadotte, being partners or clerks of the North-West Couipanj, together with Mainvillc, •■even cr eight other bois bruits, making, I believe, Iwelve altogether, went in the canoe. Thej were armed ; each man had his eun, as is customary in that country. They had nail with them. Shot is the general ammunition in that country, but ball is also taken in case of meeting with large animals. To my knowledge there was not more ball or ammunition than ordinary. Each man had hit gun and some ammunition. I did not aee any war-pieces. Attomey^Genetal — Did you hear any thing at this council about a war. Mr, Stuart. — I object to that question as total- ly inadmissible. jittomey-General.'-^l beg my learned friend^g pardon, but I must know something more about this unl^ely story of calling a council about send- ing off a ^anoe. It is a most unusual council, 1 think, attended by Bois Bruits, who, the witness says, are not ip the habit of attending councils of commerce, though councils of war, I believe, they always do attend." My learned friend must really permit me to know something more of this most extraordinary council, held to determine whether a canoe should be sent off. What could the canoe do if it went ? could it bring the thing that they expected sfty faster ? or, if they were not coming, would a canoe being sent off make any alteration In the situation of those who were at Bas de fa Riviere ? it really appears to me a very mysteri- ous business; to call a councH and invite the Boit fficnd'i r€ about u4 send- luncil, 1 ■witness uncUs of jve, they st really lis most whether Ihe canoe ^bat they , co«»»ng» tUcTation las de la mysteri- Oie Bo»« 317 Brulci tp it) raerel J to deliberate whether a canoa should be sent off or not. ^/r. Stuart,^ think, and I am sure the Court will be with uieip thinking, that it was very natur- al, when they had heard that the great line of communication was cut off between them and their principal depot, that they should bo anxious whe» ther they were to receive any supplies ; for what does the witness say ; ** that unless they had mer- chandize to trade with the Indians, or nfets to fish, that in that country they must inevitably starve/* To provide against such an alternative, or to havQ the earliest information of their real situation, was* I should think, quite reason enough for calling a council. Tbe object for which the council assem- bled was a very natural one, and the witness most unequivocally says that it was confmcd exclusive^ ly to the consideration of the proper steps to be taken in consequence of the outrage which had deprived them of their principal depot. Fort Wil* Ham, and not to devise a retaliation of the aggres** lion, or even to deliberate upon any plan, or any means of regaining that which was rightfully theirs. Chief Justice Seweil.-^Wc are continually going too much into these unfortunate companies* dis- putes. Suppose, at this council, there had been a proposition of the kind your questions are hint- ing at, Mr. Attorney, how would it bear on th^ case ? wliat would it prove that could vary t)iia case in the smallest degree ? Mr. Justice Bmven. — Admit as a fact that tliey had determined to fight their way through, what effect does it have on this case ? Attorney 'GeneraL^^l wish to prove that this coun- cil was not that innoeent assemblage that it has been represented to be, I shall, however, mere- ly, put the direct question to liim. Did you hear any thing at that couocil, iwktivo to war ? er was i I- *'* I .118 there any thing said about it to your knowledge ? J. Creboisa, — Nod. Non pns a ma connoit- fance.(^*)— The council was held ten or twelve days after Kevenj had been sent from Bim de la Riviere, and the canoe, with Mr. M^Lellan and the others, followed on in the same track, indeed there was no other communication. 1 did not see any baggage belonging to Mr. Keveny after the depar* tiire of Mr. MxieiJan, brought to Fort Bas dfo la Riviere. Mr , Stuart, — I object to that, inasmuch as the prisoner was not there, and therefore it can not be evidence, though it may prejudice his cause. JlttorneU'Gmeral — I beg my learned friend^s par- don, but this is testimony, and of a very direct na- ture, for I shall prove that some of Keveny's things were taken to tne fort at Bas de la Riviere by one of the very persons in whose company he was left the last time he was seen by some of the witnesses who were eiamined on the part of the Crown. I shall prove that the Savage Jos6, fils de Perdrix Blancne, took a part of Keveny's effects to Bas de la Riviere, a pretty strong circumstance I think. One, which, at least the jury are entitled to be ac* quainted with. I will put the question again, for I thing the witness misunderstood me, as, I believe, he did see Jose bring the things I allude to. ■^. A few days after M^Lellan departed to go and tee if the canoes, with supplies from Fort William were coming, did Jose, tils de Perdrix Blanche, come to Bas de la Riviere, and did he bring anj thing with him ? JLCrebassa, — Deux ou troii jours apres le de- part de monsieur M'Lellan, j'ai vu une valise et une cassette apport^es au fort en Bas de la Riviere par Jos^, fils de Perdrix Blanche, et un nomme (* *) No. Not to mj kaowledg«« ■ -"T^^r^r-^fw '\^-^ _" weWe deU ndthe I there oe any depar* I do la i as the i not be te. id^spar- irect na- »9 things 9 by one was left ivitnessei rown. I Perdrix 9 to Bas e I think. to be ac- pin, for I 1 believe, to. go and t William Blanche, ►ring any 319 I/Allemand, mais jc n^al pas vu Ic iiom de Keveny dcBsous, ou jo no me souvieos pas que jc i*ai vu. Je lea ai vu an bord de Teau, ot je ne sais pas en qiren est devenu. Je re me souviens ms que c^etoit trois jours juste apra8.(^') — I donotxnow whether it was m week or a fortnight aAer Mr. M'Lellan went away, that the things came. I do not think it could be so long as a fortnight. Je ne puis pat dire qu'il n^^toit pas cinq ou six jours, mais je ne crois pas qu^il 6toit quinze ; mats je ne puis pas jurer qu'il n*6toit pas diz. Je peiise qui c^^toU pres de cinq ou six.(''')— -At the time Keveny went awayi I do not recollect that there were more part- ners or clerks present, than Mr. M^Lell&i, De Reinhard and myself. There were two or three Canadians. Two Canadians who attended to tbo f^rden. The gentlemen there belonged general- ly to Lac la Pluie. Mr, Justice i9oti;sn.—- Did De Reinhard go with the warrant the day it was given, and return the same day ? and how happened it that Mr. M'Leod was not there ? ^ J, Cnbassa, — He had gone away to another post, to Athabasca, after granting the warrant, and oefore De Reinhard returned. AUomey'GeneraL — Could not Keveny have bectt kept at the fort till a better opportunity offered of sending him to Fort William r ^Ti\ Two or three days after Mr. M*Le11an*s departutv, I saw a tnink and a l>ox brought to the furt at Bas de b Riviere, bjr Joseph, fils de Perdrix Blanche, and a man namef! L'AIIemandt^ but I did not see the name uf Keveny upon the- j, or 1 do nbtv/i recollect that I saw it. I saw them at the nater>.«ide, and I do ^-f not know what became of them. I do not recollect that it was tzactly three days afterwards. (^*^ I can not say that it was not five or six days, but I d» Rot believe that it was fourteen ; but I can not swear that it wa« Mt ten, I think that it was near upon five or six. r. .( I ¥J i J?: s I l'*'l i. :i i. 320 Credasta, — ^That was not mj businftss ; t had ■otbiog to do with sending him. ^Uameif-GeMfaL^^l want to know if he could not have been kept at Bas do la Riviere. You have ' represented that Keveny was treated with friend'* ship. Do you call it friendly to send him away with five bois bruits ? if you and 1 were there« and I should send you to Fort William, with five bois bruUs, would you call it friendly ? it is usual to send men of his rank with bois brules ? was there any necessity to sedd him off? Chief Justice Se%6elL-^\ think it is not put in the power of the magistrate to exercise a discretion upon that point. I believe the act only gives pow er to arrest and send the accused to Lower Ca-* nada for trial. AUomeif'General.-^\ merely want to know, whe-* ther or not he could haye b^en kept« or whcthert according to witness's opinion, it was an act of friendship to send a man of Mr. Keveny's rank with bois brules ? Chief Justice SewelL — ^You must not do that; his •pinion goes for nothing. You may ask him whe* ther he could have been kept. Attorney-General. — ^Well, I will put that qucs* tioD to him. Could Keveny have been kept at Bas de la Riviere } are there houses there ? was De Reinhard there .^ Crebassa, — There were houi^es there, so that he might have stopped. De Reinhard was there. I consider that Mr. Keveny was treated with friendship. Attomey-GineraL-^ln being sent with the bois bruits ? Mr, Stuart, — ^They were bound to send him ts Montreal, they could not keep him, tliey exposed themselves to a civil action if they detained hitn. A «/iiror.-~Av«z vous connoissance que Main* ^^: id lid i¥e nd* way ercf five isual Yfaa nthe :etion pow* jr Ca- ', whe- aether, act of •g rank .lal; his itn vrUe* It qucs* [kept at >e? ^a* 80 that ^s there, led vfUh the boii id him ti esposcd id him.. iue M«tt' vAk be Reibhard; ei P^r^rit ^lafache alio;^tit dbiii l6 cahot kvec moilfefeut' IVf Lallan ? Orebassd, — Oui, tnonsieUk fls alloleht i^< tre pidce aU tebii. J 6 n^iob p^4 )m Haiit de Ik Hvier^. i •^ Jtirof. — Avez yoilii«DteDau9 ou avez voiid connoissattce U'un btuit iob j^Uem ku teuk^ Ique le conseil sW tenu ? ^ (?re6(iiira'.^Noh, ttadiisiear, je u^eb ^ paii eb- tendu.(") \ Mr. 8/tMirr/.-^Piet>hapi It Vrill li^ well to eiptaih to the witnesi, what toe juror meads ; he perh^s may think he alludt^ to ]a pubib war, for jbe ci^r'> tainl J :had hewrd of the taking of Fbr^ William. . •/. CreftctfMt.— 3j*ai ^ntendu le^ nouyeifof de la prise da Fort WilKam; mats il nV aivoit iiic^ia Droit ^tiHl y avoit ikne gtibrr^, dan^ l^^ J'^J'^ ®^ d^ 9a du Bat de la Riviere, 4^|||jplcceptiOD que nous avbiis Tego les nouvelfed de \& prise de Fort Wil- liam.f*) . , . •f //offiii^Grcnerail— Had yo^ ttot hieird of the deatfi of governor Seiaaple? , (^^) J«nir.---I}aV6 7011 'a k'nowledgit that M iidTilje', X^ Reio- hird, »M P«rdrix Blfinche, went inlfae canM wich Mr. M'LtlUn ! /.e.r-X^svSir.Mwywtnt. ; , . , ^ . Juror.— Have ^ou a ^nownd^ that they were ieat in the small canoe with Kievenjr ? '/. C.—No; Sir, 1 Waft in anothel^ 'place at l^e tlmp. 1 wu ^t in \be ^per p^t of the ri?er. /uror.r-Did >xM heat; of bm jou Anjr kn^led^^ of a ru- taoor of war, at the time the 'council waa faield ? /. C.-:.N^, Siir, I did ^ hW any. ('«) I heard of the captine of Fort William ; but there wai JM report of the exiateiice bf a War iii the country below Baa^ la Rlvi^, with the exception that We hftd itpeif ed kitwlUgelii aftbetftUogbflWtWiUiani. i '1 . iH !% * 1? n C^^Ji4Stice SMveH^-rr^ m}\ np% suffer it^ Mr. Att6rnev-Gre[n^)ra[. tt Kas notbJDg at ait to do with this trial. I wni' rea4 tp thif Jury his answers to ,^ their questions^ as Ihpe tak^n th^m; ^'if nV avoH'aucuh bruit quil j avoit de guerre dans le pays en deja du iBas de la Riviere, ^PexceptioD que nous avons entehdui, Jans ce terns la, de la prise du Fort WiUiam, comme j'ai deja dit'' (^') MIlCHAEJi CHrfptlEN, Sworn,, »dnd examined byi Mr. ValUh'e de St. Rial Chretien. — J*etois en Vki^ de Pann^e 1816, an service de la soci^lei du Nord-Ouest en qualite d'ufi engage. ^ J*f§toi8 oette ann^e au Lac la Piuie au terns tjuemonsieut* Alcix^uder Stuart arrivala d* Athabasca, a c^ que je crois, mais je he sais pai pour 1^ sur, qu^l est drriv6 d' Athabasca. Environ peut*etre di& jours apred. qu'il arjiva^ nous avons entendu que le Fort Wilham 6tdit pris par les gens du. Milord Soyplrk, et avant ce terns la, ce toiit^toit en i)088es8ioh du Nord-Oue^t Je sais qu^apres cetems^la, le second d'Aoiit — ^vers leSt Micnel-^le second d'O^tobne, le capitaine D*Or- sonnens est arrive au forfr du Lac la Pluie, et que avant son arriv^e monsieur McDonald, un nomine Bonaire, et 'monsieur No^liiii arrivpient au Fort Lac de la Pluie. Ita ont entres et pris monsieur Sajer prisonnier. Mpnsieur Sayer etoit au lit, et lis enti^oient dans sa chajnl>1h&, et Pont pris prison- nier au nom du Roi ; disai^tj *^ nous yous prenoos prisonnier de la part du Roi.^' A oe terns j^^tois en dehors de cette chambre !u. Je n^elois pas dans la chambre, mais j'^tdin si lia pprte« oil je pouvois (^*) iThere was no report of any war in th« countij below B«|iie la Riviere, with the eiception that we'liad heard at that time of the taking of Fort Willfam, as I luive already aaid. ^HK' 3^ jr. tb to lie lion i la '0 6, ail ^uaVite Pluie riva la us pal s avons rir les la,cc Jesus •s leSt D'Or- ctquc nouune tu Fort lonsieur lU lit, et prison- prenons [pas dans poutois jntry bel J^^ voir,' 6^ jdjes ttii^i Vu glrenclii, et j'ai enteodu dire, ^^nb'J^ yoiis jp^ehon^'pVisonnier de la pjartdu Roi/' Monskiii^ IVrDdhald a deihahde oQ etoit monsieur dans lili m^isori de De Reinharcli. p^irceque dans ce tnom^nt je ch^rdhoi§ uhe chaudiere i la liaaisQh de,^ uionsfilBbr Saj^r. Je fdil ensuite dans la maison. de De ,Reinhard, oi) j|ai Vu ^ motisiepr M*pop%ld ave^ d^sitfuies gaMafat' ttionsleui: De^ Reinbiard. Son fusS ^tbit codtre la muraiille. , D^na ce mo^ m<^rit ' ie 'he saiTois paai qii^une force des eens da^,. Milord Selkirk ,etoit ait fprf du . Lac Ija. rFuie, ou ati poilage. Dads IVpf ea' imdi le qio^ Guii-. laddie arriva avec, j)eut^(re, vip^ dea. Meiiiron^^ Aopaf4vaht daiia te cdurs de i^'joiirheey pt Vera deux heures, troia ou quatre Meqh>i^8' ay^ient. ar^ riHs, et kpre^v^^^e s6feit cpuche,' qu ^^QiViron,. lea^ au'trea ^bnft V^i^tirb' '^rbili^eir m^nsjeiur M'Q'onald. Je ^ i^ai pds ^MetiM bdk itbik odi|0)&tre parler en me- nace a Oe Reinl»rd.(^*) """"""" , ' * (i«) In the »udiAifir of isie, t Was. in the. SieHrice of th« North- Wei&i Cdmpatiy, in t)|e capabity of art ehgagtS. I was in that year ki Lalc«' !a Phiie, at tna tftte wben Mr. Aleiander , Stuait aniVed Ifasf^ frpih Atbajba^a, ;^ I beliaye, but I do not knovr ibr cerlliin tbaK he caiiie ftom AthaMta. About per- haps ten dJayiafte^ he oaihe, We heard thaV Fort 'VVilliani iraa , taken hy the bebple O^niy LphI Selkl)rk, and before that period, that furt waft in the po^sljoh of the Nortli-West. I know that after that tttne, On the tecdnd of Aujnist— towards Michaelnia9<^^ on the keeond of Octob^rj,cap(iiih D'Orsoniiens camO to the Tort of Lak« i4Plaie» and that' before his arritai Mr. M' Donald, one named fiooaire, and Mi^.' Nolin, arrived a^ Fort Lake la Piuie. They Entered akid took Mr. Sayet prisoner, Mr. Sayer was in bed, and they went into his loom, and took hini prisoner in the King's name, say jrtg ** .w? t^ jrpit prisoner, in tlU/name of the Kin^*** At ^t time I ^fA outside of tb^Uoovi, butlwMiat . ^dooir, wh\ere I could see, and I saw tbein take biuB,.and heard say the words, '• we take you prisoner iu the name of tho 1= 'I so*' a -,^/^ 324 'A'! Chief Justice SewtU. — ^What is that to prove ? \Mr, VaUi^e de St. Rial-^l am going to prove, as a fact, that those Mcurons used menaces against pe Reinhard. SoKeitor General — The learned gentleman must first prove that the prisoner heard them. Jm, Vallihre de St, R6aU^\ will put the ques- tion to him. What did you hear the Meurons say of De Reinhard ? {which question being treated m French.) 'Solicitor General — ^I object, at^d be^ mj learn- ed friend's pardon, but that will not do, it is not what thej said of De Reinhard, but what they said to him, that is evidence. Chief Justice Sewell^-^You h^d better put the Question generally, whether these men threatened ^e Reinhard, and if De Reinhard heard them. (which tpiesiion being fui,^ Chretien^!] y avoit des Meurons, et je les ai entendu faire des menaces contre De Reinhard, et je p^nse que De ReiD|iard les a entendu. Je le crois.(") ^ King." Mr. M'Donald asked where Mr. De Reinhard was, but 1 did not bear the answer. He immediately went into the house where De Reinhard was, and I saw them, but I was not in De R?inhard*8 bou!it avec le capitaine D^Orsonnens. C4re/t€h.— -Les vingt hommes ont accompagn6 * ie capitaine D'Orsonnens au soir, mais je n^ai pas eatendu qu'ils sont venus a deux heures.^') (^*) Mr.V. de Su A.^Tbe twenty Meurons, when did llicy arrive? M. C, — It was in the evening, towards sunset, and they were fu ■7. v? E m ♦ I i ti w •» , 326 Clmf Justice S$wdL — There i« certf|i^ly some tnistake or coptradictioD. De said j u^t nayr tjbjQM men came with captain DX)r90nnens. J Y^jll^rei^d to you what I have taken on the suhjeqt of jl Meurons. '^ Dans Tajpres mifji lie ncji^pi JC^ . '* lauijdei un MeiiroD, 4rriva ad fort, ayec Mpevipg- '^ 'aine d*bottioi^8, et auparav^ni^ vers deiii heures '^ de Tapres midiv il arrivoit tirpif pu quiatre )Meu- ^ rons avec tiionsi^ur M^Donalai lis spnt yppus <( trouver monsieur M'Pona.ld au f^rt le spir, le ** soieil couctlijiy ou e|i?iron« J^ ^^^PP" ^^^ PB®~ ^' naces faites par les Meurons i^., Some of the jury intimating that Jh^ l\ad not so understood, the miness. j -. •;;)■, ;:--..'.? \vy'.' CkufJuelk^, Sewell.'rVbi^P l^ ^, fhprt-h^i^d ,wri^ er lo toe , Courf,; we can refer tp.ibi|%.. Alr»$il|np- son, do |roar notes accprd with thotie Ihay^.r^^a*^ Read jours if jou please. :. c... / i c ; : . ; •: Mr, iS^MOfi.— Thej dp mk yPM bonppr,^^acf- \j agre'^ with joar npte^. .: I makei^im merplj to fiaj, tJuit tiiejr were wit^i captain, D!Oi^nneQ$^ in the former part of thp testioipoyv ASC^V.yif^t bom- «« ines etoient. ayec le capitjain^D'Qrsonne69,'X'*) widiout aoj; spec^catiipKi 9^ to fimo, 4>r to. their conuo|^; in tib^ latter pcirVpf his,qvt^ei[icet J^repre- sent him as sayinQg, th^jbt.lbey ca^^i^i.witb Cftpfain DK)rBonoei^ tpiiviai'dt evpnipg, wbipb^Wasi (be se- cond time of cap^in. D^Oraonr^epg comipg, as i un- derstand him. Jlfr.^impsifmr/Batf'hMi notes Jrpn^ the mftdian of Mr. VoUihrs. d»SU R44^\ Cej viogt Meorpns qqand arrivpieft^, il^r ?"(• « ) ^nd the jury and prisoner's coun^4 md thaf ufos (hfimmntlr in 9ohi€hAenh4u(mderstood)tkiUfitnefS4i : Vr 'V '-^r^ CA*^/i(|Ac0 iSef<^eftrT-Tib# 1^ita«fi^^ Ma- mined mor^ slpwljri forlorn d^!?i»Hi§diafijUure to take down every Mfor4. Hp>' certainly, did >feay that they arrived v^titbcf^pt^in O^OirspDnens at two oVIodL. It is :0|i boiji our nptes; and I can . not strike i| out. I do not know that it is of any great importance. (**) Tbise twenty men were with captaiQ D*Orsonnens. (•■) These twenty Meuirons, when did they arrive ? * I ; -i I ik) if 828 n? ■.'/ '*' » ChreHen.-^^ epienii^ leg Meurons dir^, *' q0'i1s , qti'118 le prendroif Chirf Justice Sewelfi-^A quislfe hebre? CAfffften^-— jC'^toit yen le toleil couch6, k la bni- nantef vera le seleil ooiiob6. ^ On le tieni i pr6- ^* seht^'* disoiebt^ilsi *'* jauterfbis il aVoit ioih de nous f^ danft le rigiment^ il nous fissoit talller^ mamte- f nani nous allons avoir soin de lui/^ Ifs he di^oient JMis pourquoi ils vetidroient (e meher au pbriage. lis Font amen^ au portage ceniSnie sbir \L lis ^- toient anii^s, tous les hommes qiii eont venus au fort' 6toieht aitn^s avec des fusiluf; Nous^^tions tou^ ensemble^ nials je ne puis pas dire si De Reinhard Va entendu, parceque je ne sais pas pour le sur. Peiit^re qu jl Ta entendu, peiit-^tre no^/ils £- toiisnt toutf dans unci bknde. De Reihhard etoit dans aa chainbre, la porte oi^verte, ei j'^tois dans la cuisine, et je Tai entend(t,'^et je pense dans ma conscience que De Reinfaard les a en tend u. fl 6toit aussi proche d^eux cootme moi. Le capitaine D'Or- sonpen^ 6toit ice temsdans la meme mai8Cn,mai8Je ne Fai pas vii dans la inilme chambre avec De Rein- hard. Je n'ai ppis aueune connoissance d^une dispute e^ltre le caprtaine DK>r8onnen8 et D^ Reinhard. Te^s s^njtsortis ensemble, DeKeinhard; capitaine D'Orsonnens, etlesious^sont partis poiir le. porta- ge du Lac la Pluie. De Reihhara paroissojt avoir Pair cfaagrip.' pes Meurons ^toient Mrieusement ftcb^s centre lui,^ et par leur discoiir^ it me paroissoit qu*ils le haissoient (") ' ' * (••) M. C.-^I heard the Meurons sav, that *< they had en- « tered.the fort to seek for one De Ileti^ard, and that if he did hi De » du ibru- ipr6- ) noire aViite- isoient Il» 4- nos au ns tou^ iinhard le 8ur. , lis *- -d etoit \s dans lana ma IV 6toit D'Or. i,mai9Jc le Rein- dispute iinhard. iapitainc |e porta- rrfrVair It techfo laroissoit '^If be did 329 ChiifJvsiice mart, but now we are goipg to take ** care of him." They did not say why they wanted to take him to the nortagc. They took him to the portage that same evening.' Tliey were armed, ali the men who came to the fort were armed with guQS. We were all together, but I can not sajr whether De Reinhard heard it, hecau<;e 1 do not know it for cer- tain. Perhaps he heard il, perhaps not, they were all in a troop. De Aelnbard was in his room, 4fie door open, and I was in the kitchcfi, and I heard it, inu I beiieve in my conscience that De Jleiqhard, heard .llienoi. J[le yun, as near to them as I was. Cap- tain D'Orsonnens was at the time in the same house, but I did not see htm iii the same roon^ virith Dki Reinhard. I have not any knowledge of a quarrel telween captain D*Gnonnens and De Reioharfl. All Went' out together, De Reinhard, capiain P'OnoDnens, and all of them, wcQt away tc^tber to the portage of Lake la Piuie. I)e Reinhard appearecJ to have a melancho^ , air. Tb^ Meuroins seemed to be seriously irritated against hiiQ, aiid hj their JIanguage it appeared to me that they hated bin. (•") Jlfr. F". itSU /I.— Did ht prohibit you from leaving the fort? , '"\ Jlf. C.—He prohibfted us (6 go away. " •si l> • .'•! 7' i\ ii'-#f S30 • i'^^kUf JuatieeikwelL — ^What can be joar object in wishing to go into end«nce of subsecjuent events? ':Tiiey ecrtainlj can not be brought to boar on this 'question* JUr. VnUiht de St. RiaL-^t%^ youf honour, I ihink ihej will. Our object in ^hus fixamining the . witness \b the same as we yesterday had the ho- nour of submitting to the Court. This course of examination is intended to rebut the evidence of captain D'Orsonnens, who represented himself as a I'ompletely disinterested individual^ and as it af- fects tne credibility of a witness on tlie part of the Crown, we consider it material that we dhould be allowed to shew that he uniformiv apjieared in a \evy different manner from that of a disinterested person. Examination resupxed by Mr, VaUihrt de Si, Rial Chretien. — Le lendemain Ofu sur-lendemain, le capitaine P^Orsbnnens nous a tbus asiiembl^s dans la cliambre de monsieur Dease, et nous a fait de- fense de traitor avec les natifs* ou de roettre pred 8ur Teau pour pecher, ou de faii% la chasse, ni an- trement, et q.ue si on le fesoit, le premier coup qu'il tireroit, seroit en I'air, et le second pour nous cou- ]er au fbn4* Le capitaine D^Orsonhens portoit ioujours un suriout g;ri8 ayec un sabre a son c6t^. Je ne Pai pas vu porter une uniforme rouge. II nous a dit qu^il nous ponaettroit de rester pour six mois, mais ils falldit s*eb aller de dedans le fort. Je sais que le capitdine D^Orspnnend a prid Tam- munition, la poudrc et les balles, et tout le boisson qui ^toiciil dans le fort. II disoit que la raison en iHoit que le fort n^appartcnoit paj aux messieurs du Nord-Ouost, roais a sa Majesty et au Gouverne- ment. II nous a ofTcrt dcs tcrres la, ou on vouloit eii prendre, et nous a dit qu^il avoit la maitrise pour our, I ng the lie ho- jrse of Biice of DBe\f as as it af- ft of A« red in a iteresled en doiuier,,€t4M*4iue partje40t Bdeiaieiireidu Nordf Qi^est aeroit p0f)4uO) et I'autre pertie seroU (shasico (l^|ttjr8, **|iia|0'yous serene biepiavecnouaautres/' La Compagnie du Nord-Oiie^t ^toient les boar- geoift ^e inpnsieur.pelteinhaitl. C^pUaioe D^Or- sonnens m'a dit aussi qu'autrefois il n'y avoit ipst deft Ipix dans xe pay/if iiiaifi,qu*0D (kUoit oomme on .vqujqity iCnais (|ue cela fie soFoit pas tie. inline a pr^r ^ot, p^rcequM ,6toit venp pour ^tablir lee ioix. II . ^^^nirpjoit cb^Fcber pf^f^dftDi^ que je briilois quel- ques papiers, dfis .vieuf papiers, qui ^traiBoieDt, & ma coi^fioissancef depuis Jongtteniis, tdane un han« mxd, .par prdre de inonsieur Dease. J Vi ^)tc ^ lui. Je Pai trouv^ avec son sabre a son cOte. 11 m^ commands de dire la verity, qu^il avcit autant de force qu^un magistrat, et que si je ne disois pas la verity qu'il me passe roit son sabre au travers du corps, quM me trancheroit la t^te, ou que je serois peridu. Quelqucs minutes apres il a ordonne qu^on mopltojit uiie teiate, oil il mV mis, disant que je res- terois li, >' jusqu'si ce que tous partircz pour York, *^ et li, ^ vous ne d^oiarez pas la v6rite, vous se- '^ fez pendu,^* que je ne connoissois par la conse- quence de brikler ces papiers. II m^a laiss^ la jus- qu^aii lendemfin au soir ayec un sentinelle a ma tente. Ceci .s'est pass^ deux ou trois, peut^etre quatre, joprs apr^s ^pe D^ Reinbard fut emprison- ne. On pourroit voir du fort une demie lieue vers le porttige, et pendi^nt ie t^s que j*ai ^tk cmpri- 60Dn6, j^ vu ae(^rqper f^u camp au portage, deux piec^ de c^non de cuiv^re mont^es sur ^urs af- it^ts. Je les ai vu auparavant mont^es sur la bar- que de Fort William, ct je les |ii bien reconnu pour les memes. II y avoit une pile de boulets arran- ge au camp contre les canons. J^ai connoissance (^u^ensuite le capitaine D^Orsonnens a pris posses- sion de tous les efiets qui Violent dans le fort ct M ftpp^i^Doieot au Nord-Opest, d^t il a fait un ■\f vm H •f )" fa . rh •'I;- ij 4-1 l; fl li>-^! i^:V, o 'M 1-. 'W •• M 4 i 141 332 inventaire. ht lendenain j'ai descendu pour Port William. De Reinhard est de»cendu auparavant, piutienra jours aapararant, Faje et LaPeir>(e furent envoy^a en meme torot. •Vr. Juilue J^otom.— Combion de jdura ai* ^^ ♦vant? .' CAral^.— Je ne puis pas dire. Quand je luis arrive au Fort William, Tai trouv^ De Reiohan) prisonnier. II 6toit sard^ par un Meuron i n porte, arm6 auclquefois d*uoe bayonette, duelque. fois des pistotets, quelquefois d*UD fusil. Au bout de deux ou trois jous il fut enlarge, et p^rmis dial- ler et venir au large dans le fort. Le sentinelle ^toitot^'*) (•«) Jll. C— The next da^, or the day after, captaio D'Or. aonnens called us all together in the apartment of Mr. Deaie, lad ordered ui not to trade with the natives, nor to go on the wiler to Ml, nor to go out a hunting, or otherwise ; and that if we did ao, the first shot be would fire would be in (he airi and the » con<|l ,to sink us. Captain D'Orsonnens coostantl/ wore a git; great coat with a sword bv his side. I did not see him wcsra red nniibrm. He told us that he would allow us to remain Ihen tot sis months, but that we must go out of the fort. I know tb^ captain D'PnoQiiens took the ammunition, the powder and the })9\\, and af^ the liquor there was in the fort. He gare for a reason that the fort did not beUmg to the gentlemen of the Nurtb- West, but to Hjs Majesty, and to the government. He oflered to give us lands there, whet^ver we chose to take them, sod told us that be held the freehold so tk^t be could give them, and ifait part of the gentlemen of the North* West would be bwag, ssd 1|ic other part would be driven from the country, ** but jou wiB ** be well off with us.*' iThe North- West CiDmpany were Ibe employers of Mr. De Reinhard. Captain D^Orsonnens told me also, that furmerl v tltere were no laws in that country, but tbt every one did a9 lie liked, but tJiat i) would not be the same dow, because he Iiad comt to establish laws. He sent to fetch ne vhile I was burning some papers, old papers, which, to my knowledge, bad been lying about for a rang while, io ao out- house, by order of Mr. Dease. I yrent to him. I found bim with his sword by bis side. He commanded ppe to tell tbe truib, say tt)g that be bad as much power as a magistrate, and that if I did not speak the trvtb, be would run bis sword through ny Ikk1jf> .; fe ■ «,'• IT Fort ravttnt, a|iUia D*Oi- r. De«M,«id on tbe water Ibatifwcdid , tndtliex- I worttpty >• binwttti > remain tbm . 1 knowlbt )if der and lfc» le gate ^ * oftbtXurtk- He o&«4 lhein,aiidt8W llWem.anditoJ •♦ but you wm my weie <** nDem teJ* "* jntiy.bttliW ■ the same now, nt to fetch »e wliicbi to »! I found bin u> icU tbe trui^ rb my Vo**^ 333 ChUf Juiii€$ Snocff.— Were there MDtiiieli at tbe ouUide door of the fort ? CArwrt^M.— ^i» il 7 tToient des tentinelles en dehors du fort. Penaant le coura de Thhrer il tor- toit une foit arec un de tea caaiaradea A Pautre CQi& de la riviere. J*ai arriv^ au Fort William le premier de Novembre, le jour dea Toussaints, et c^^toit deux ou trois joura apr^ quails ont laisso De Reinhard se promener daos le fort J*ai con- noitsanoe que De Reinhard a tenu une ecole pen* dant Phiver daat le Fort William, et Milord etoit le maitre du fort dans ce tema la.(**) that be would cut off my bead, or tbat I thould be biinc. A few mi- Mlea ifler, be ordered a tent to be pitdied, into wbicb be put me, Mjring that I should reroain there, " until you take jrour " departure for York, and if vou do not declare the tnitb there, " you will be bung,*' that I did not know tbe coooequence of burning tboie papen. He let me remain there till tbe following daj in the evening, with a wntinel at my tent. One can lee bm the fort for half a league tQwarda tfao portage, and during tbe time that I wm impriaoned, I aaw two piecea of braaa cannon» mounted upontbeir carriages, landed at the camp at the portage. I bad seen them before mounted upon tbe Teasel of Fort Willi- an, and I periectlj recognised tbem to be the same. There wu a pile of balls placed at tbe camp next to tbe cannon. I know that aflerwards captain D^Orsonnens took possession of all tbe edects which were in tbe fort, and which lieb>nged to tbe North* West, of which he took an inYcntorjr. Tbe, next day I weet awajr for Fort William. De Reinhard went down before* iorecal dajra before, and Faye and La Poiote were sent at tbe Mr, J. B. — How many days betbrr? M, C— I can not tell. When I arrifed at Fort William, t finiod De Reinhard a prisoner. He was guarded by a Meuron placed at his door, armed sometimes with a bayonet, sometimes with pistols, sometimes with a gun. At tbe end of two or three days be was enlaned, and pertnitted to go and come at large within the fort. The sentinel waa taken away. (*') Tea, there were sentinels outside of tbe ibrt. During tkcoQiseofthe winter be went out onetime with one of bis nwtdes 4o the other side of the river. I arrived at Fort Wil- liaoi on tbe first of November, Alhainti-day , and it waa two er ml . i-d k ■ ' S-'H rail ' ■ ■ ''i- III J, 1 111 ' ' ' ■ ■) -U .i ,1 'I 1,%!. .'I I ^r ' id '■■ I 3^4 sance que monsieur Debfaea^te p^is par foree' die-' vant l^lonlSeikiiie pbtii" fiigni6r'tah'][>apien ('^^ has taken io-^kpPo^e a confeilsiibn; Isf I ^hhil!, a vtry 8ingulai< on^, nanf^ljv to pi'ov^ th^l -the con^ duct of UlM'iiMgiistrate before A^hbth itti^s m^dci may 4iave> b«eti wrong'in other case^. Can'thh be admitted? that a oiagiMfate's ffcihertd -conduct can i)e ^enammed iiltd, <<>i^ >irtd^d' his^ coiidiiti even Id any particular act, ho^vi^t^r ccrnne*cted vntH thb transaction, is a. positibn, i thuikv cbinptetely iiri- tenable. What difference is point of fact is made^ how is the genuineness of the confession afilected,- ij the manner in whidi one of the -witnesseiT wa& led to sien the paper? he 'did sign it, and whe- ther he aid ko voluntarilj or by foh^e^ cah not al- ter the confession itself, which was the deliberate act of the prisoner, previously prepared in his owri hand Vrtitiiigi and thus ^repai^d; its delivery td thb Earl ofSclkirk^ as his confession of the part which he ^ad taken in the murder of Mr. Keveny^ is witnessed by four persdns^ and' what nbssrble differcnciB can th^ manner in ivhich they nappen- ed to become witnesses, make as to the contents •fthe confession ? not a particlei ' Mr, Jttikce 'Bmmy-^ln admitting this confes- sion, it should be reCtfUebtfed, thiit W6 did not al- low that part cf it which is subsequent to the sig- nature. . W« excluded that part beginning, " be^ fore Thomas^ Earl of Selkirk.*' There are no three dayi after that that thejr suflfertd De JReinbard to walk about the fort. I have a knowledge that De Reinhard kept I acbool during the winter at Fort William, and my Lord was the master of the fort at that time. (••) tiaye you any knowledge that Mr. Deasi wajl taiketi hy force before my Lord Selkirk 1o iign a paper ?^ N^: i te' de^ r) [frl«hd ittA!, a [iecon*- } m^dbi coftduct ict even Itcly uri- 18 madet afiected{ ind vbc- ili not at- Jeliberalc eVivery W f the part .. Keveny, t pbssible f happen- contents Lis confe^- lid not al- to the sig- pin^, "^«" src arc no jard to walk nnhtrtl kepU I Lord was iw 1 fr»« taW«tt *^'^ witneises to the confession a^ we. have r receivr.- ed li'r tiM faui< witnesses are^oa part whi$h the Court havf disailoweds which thev have rejec|edt{ Tbe,fac^ that, ata certain dry, DeAeiohaiidflTaf^ a ppsone^r, and tha^t at anQther, he wasjree, ista] factpitoper for yoU; to lay before the jury, au^- they may* if tliey think proper, connect this liber* ation with the confession. But, after we yeetor^^ day, on tho examination of Dr« Allan, xefuaed ta: permit th^ officers of the Crown to prove the suhV sequent part of the pajjeri what possihld use cai») it K9 to go in|o an examiujation as. to the manner in > which rejepted testimony might have been i>btain« ; cd? Mr. Stuart — ^We submit, as we .-are-- always bound. to submit, to the judgement of the Court, ' though at yari^^i^ .with pui? pi^eonoeived opini- ons». bMf, in illiistrationsof why we . thought this : 2iic;stton to be wUhin the limitSi of evideticief thov !ourt will perhaps indulge mewith tlie liberty of making two, or , three , obseTvatious. Dr. AIUai stated m his evidei^q^ that.Mr. Dease, a clerk in the same ^mii^oy as th^ pri^oiM^r, .attended at the delivery ojf this paper ,to the; Ea^rl of Selkirk by^ De Reimhard^ Froi^ that want pf candour, fairr. ness, and frankqe^s,, wiyehruns through the) en**:. tireHtrai]paction9 (1 beg not for ji moment toam«^) pute, thii^ Ijujii pf conduct to iUm ietirned Ciiown ofiVrd cers, for fai?; ind/Bcd; jarp th0y y reinpved > from a cart' pability to , adppt any course thiit coidd/ warrant < such an imput^tioiit,) butt do say, froai; the total - absence of ,, any, thkig, like candour in those who are at the. back, pf.jtbis, prosecution, the naturaL bference which the jury would draw would be* ? that Mr, Dease .attended voluntarily* The adds* tional weight igifcn to the paper by the signature ofaconfidentjal clerk to tN North^WiBst Compa- ny, attesting that, in b'Bpreseince this (Confession i mv' -:\<' ' I' - i / *' *■ ^^ 4?« j| i 1"- 338 wif taade, can not for a moment be orerlooked^ forif sych a peraoii wa» voluntarily present, mak> Ing no objeotjony the evident presumption would be tl|at every thinj^i being perfectly rair, the tes- timony was irresistible. If, instead of this, we prove he was dragged there by four Meuron sol- diers, who were in the pay of the very magistrate before whom the confession was made, we, I thiuk^ account for the finding of a clerk of the North- West Company's name to a confession made be- fore the Earl of Selkirk, and at the same time destroy any supposed validity attached to such a paper by the circumstance. We now wish to prove by this witness that the signature of Mr. Pease Chief JusHee SiweU, — No. Mr. Stuart Mr. Shutrt, — ^1 really beg pardon of the Court. I wish to prove that this pretended examinatioo, which is aetailed on the paper received by ths Court, is not entitled to credit, and that the pains taken to eive it the semblance of eitraordinary fairness, is nothing more than a part of that plot of which the machinery was already prepared^ the mine was ready to be blown, the train wa« laid, so that nothing was necessary but to apply the torch, nothing required, but to have the pa- per already manufactured, signed by the unfortu- nate De Reinhard, whose power of refusings wboae freedom o( mind, may be well estimated, if we prove that those who witnessed this delivery Were not there accidentally, or voluntarily upon an in- vitatroil, bdt were dragged before tne noble Earl of Selkirk, the private prosecutor, by four Meu- ron sdldiers in his own pay. We do think, that, as such a circunnstance can not fail to involve the volantariiiesi of the confession in doubt, we mifi'ht be permitted to prove it, and as we considcrea it oould produce an essential benefit to the prisoner; ^,v. 337 ire felt bound to iinre th« «««-4- Chief Ji,nm S«X-For^"2'°" *"* ** ^--H. not we it, ,YI could, i ta2 X»°7« P*'*' * '="»' tainJjr would. Let us turn fi,'''""^' "'«' <=er- evidehce of Dr. k\Z H. " u"""'"' "> ^e before De Reirihard si<»n«l i^f ^ "'^= present «o Lonl Selkirk, that^? "J Je/.ver«d the^aper fo^ to be present tha upon hk ^'f "'^^ ««•«* was hantfed lo ^r fhT f. "T'r"' «he paper •»d asked the priSr " f S "'"'' " •" himself. Wd answerine ?C^< /"?""*''" D« Rein- »ei. further aVea\ "dolor*'".!' ""^'^ "•"«•" andAe answers, «„„, d7 £ » J' •=°'"'"'*'" as the cncumstance i, it do"s „«» T' '"*""'"• "''ng that is allowed as evidrir '^ P'^ *° »"7 soner, but had the attpL.- u "ff*""'* ">e pn- ifference could it «£"?" t?",''^;?'"^^. Xt d'd, that one of the wf,„e.se, t\ % R<"nhard even taken against h.« i^tr '^'"'* «'"'», or wa« die«? we should tharvr''"" >^' ^'""- «<>'- gentlemen, which voiTth^ T"- ""^ *'"&' judgements, may tL.k 11^ tl T f X""' conduct must be bound. 'our'^^ r °?^''' ''"» "t I'-ted, by rules of W r/'L'^TV?" «»«* be joulde^cU an/thngwhrch wfPt*'^* ''- admit, eonsiaientl/ with som?^ 7 ^'"'' "'' ^an b-t m this i„sta„c{ I can not ^^" P""'='P'«». ground. Tor putting thil ZJn7 '/""*«* ^""r "«e such an express on^f"V * 0"ght not er...ndyoa. WhTtrCro;n'"offl"P'' ('^""'»- !» your question, it was Ln. °*'*=*" "Ejected from that to lend th*' iurvtT- ^P"*""*"-, and 'rate, acting wron^ in-* 1? '"'•"" """ '^e magis. 10 in ''no.hel a,;*;;"" ""•".nee. ''« 'VouI<^; » "• «"». it, as you now m iif UU 1 :•* 11(1 ' 1^ 338 »uy» you only wish to prove that Mr. Dease was not a voluntary witness, as it is in evidence that he was present, I think ^ou can, hut no further than just that fact do I think you can use the ques- tion. Mr, Vanfelson. — We have no wish to use it far- ther. We merely wish to prove that such was the system of lawless violence and outrage carried on in that country, that every thing was done by force, and that opposition was useless as military authority owed it down. Chief Justice Seweil. — I r^s inidi.(") ""^ "" *'<="» Jjeures de I'a- RUDOLPH HALLER « /- the mines was sworn in th^G^^7' "-^"^ '**''* ^'""»inalionconAjediL^!ITJ^ '^f'g*^ "nd Brewer In, Mr. FaJJ^^l. ^* *** ««*«» o/^r. b"' 1816. De ReiZrd etrirL7' ^'^"^ soi.a:cr sous la cai-de H-l J- '", "'o's, et pri- puis pas dire que V-^toit ^~" '^ J"""- J« »• j; pense pendant d°ouZ*""'"'".°'^''' "«»« «"r«'r et entrer au for comii f' "","' P°'»'«>'« qume le fort le seizi/i^e ondr^.^^""''^'*- ^'ai •™cis iwiiord Sf-UrJt r/" / ?"W'%ren. commands par Je capi.aine C/""' '""^' «» •"•ercmentlecapiteine'^D'or^ "''*^;; '»*'» P"*- "'ande En expLat^, Xy^^T^^' ' ""?" ^°'- :^Mattbe/con,„a„£i;r„':„^,avr / go.s.sipe(j focethpr nJ d • . *^"*^"» anti some Obrm.^ ;» '">«er .lo„„ S*„ Fort Wmb*""'T'' "••" »'" ^"^i T^.l 340 -v^^ ncuviemc d'Octobre, et que les deux capitaines ont commands au meme terns, mais je pen8ei*oit que le capitaioe Matthey 6toit plus haut aue Tau- tre, et le capitaioe Matthey a comtoand^ jusqu'au tcms que j^ai quitte-C") j^ttomey-Genirai, — ^We have no questions to put to iJaller. • JEAN BEAUER, Sworn. And examined hy Mr, Stuart. Beauer, — ^Je ne connois pas monsieur John M*Nab. J^ai ete employ^ le quinzieme de ce mob d \ai 'ignifier un ordre de subpoena a Montreal, d<- m part du prisonnier, mais je ne pouvois pas ie trouvcr. Je suis connetable a Montreal. JV^tois a go;> logis chez monsieur Williams, au post ollice 4^"^ iVf ont real. On m'a dit qu'il ^toit parti pour un iii^ liiiie oil douzaine de jours, mais qu^il avoit iais- s^ son butin. J^etois ensuito a Longueil, ou^il ss rctiroit quelquefoiii, et j*ai ei^ inform^ par le cur^, qu^il ne ravoit pas vu pour trois semaines. Je ne puis pas dire s*ii est au service de Milord Selkirk ("■) ] know the prisoner v^i the bar. I vras at Fort Wtiiiin on the nineteenth of October. 1816. De Reinhard was thea there, a prisoner -^nder the guard of a sentinel, and he remain- ed 8u for ten or %lev«>n days. I can not &av that it was tbirteea or fourteen, hut I think it was for ten or eleven days, or nearly that. A^A i that lie was no iun^er coniinc^d, but could go out and in th^ ft^tt m he chose. I left Vac fort the fiixteenth or «• venteenth of November of th'it year, and the people of mj Lord were in posi'f ^siort of thh tort at the time, and during ail the time that 1 was tb^rt. By my Lo 't 1 mean my Lord Sel- kirk. The party was am^i^d aiiJ comni.inded by captain Slat- they, but at first captain D'Orsonnnens had had the command- In explanation, I mean to say that captain Matthey commanded nt my arrival on the nineteenth of October, and tK the two captains commande J at the same time, but I should itiink that captain Matthey was above the other ; and captain Uatihey had the command until 'the time that I leO. i ^1 341 ines \y6\% i'au- put •u 000. Le seizieme de ce mois, j'ai lervi aussi uo ordre sur un nomm^ Jean Baptiste St. Pierre, comsue temoin, pour le prisonnier, et il m^a dit qu^d iroit. II tii*a dit aussi qu^il avoit re9u Par- gent de Milord Selkirk, et qu'il 6toit engage pour partir au Fort William, mais qu'il iroit chcz mon- sieur M^Kenzie pour lui parler. Nous etions en consequence a Tomce de monsieur M^Keiizie ; il a conte ses afiaires a monsieur M'Kenzie, et la des- sns monsieur M^Kenzie lui a dit, qu^il feroit bien d*a?ertir son bourgeois qu'il i^voit re^u un ordre poin* partir pour Quebec. St. Pierre a dit la des- sus; **tu viendras avec moi,^* et en sortantde la porte nous avons rencontre un nomme Harnois.('*) jJUorney-General, — I really must interrupt mj learned friend. It is not the Crown who keeps the man awaj, and I can not see what the ialc coovereatioo of people in the street, is to prove. Chief Justice Sewell, — I do not know, Mr. At- tomej-General. The prisoner thinks it essential (*•) I do not know Mr. John M'Nab. I was employed Uie 6Aeentii of this mooth to serve an order of subpoena u|)on him, at SfootitraJ, on behalf of the prisont;, but I could not meet with hiin. I am a constable at Montreal. I went to his lodgings, St Mr. Wjllbms, the post office at Montreal. Tbejr told me 4at be bad gone away for ten or twelve dnys, but had left his tbn^ tbeie. I was afterwards at Longueil, where he somi-timet wail, and I was informed by the curate that he had not seen hm (or three weeks. I can not say whether he is in the service of my Lord Selkirk or not. The sixteenth of this month I like- wist served ao order upon a man named Jean Baptiste St. Pierre, ts a witaess ibr the prisoner, and he told me he would go. He toU ne also tbat be bad received mojiey from my Lord Selkirk, and thai he eras engaj^ed to depart for Fort William, but that be vodd go to Mr. M'Kenzie, and speak to him. We wen* in cooMqiieBce at Mr. M*Kenzie*s omce ; be related his concerns to Mr. M^Keozie, and thereupon Mr. M^Kenzie said to him, that be would do well to apprise his employer that he had re* ceived an mder to set off for Quebec. Thereupon St. Pierre ^t ** jp> with me," and on going out of the door wc met one Uanioii. . il V.s 342 4 to fhew (hat, though he has lubpoenaed wttQe«^0^ he can not bring them forward, and if he can sheif ivhj he can not, I think him at full liberty to do so. ' Examination resumed by Mr. Sfuarf, Beauer.^^oriant de Poffice de monsieur M^Ken* 2ie un nomme Harnois, un vojageur, a dit qu^il y avoit, en haut de la rue, un anij ou un camarade, '* qui veut vous parler.** 11 a repondu quMl ne pouvoit pas alter, qu'il partoit pour Toffice de son Dourgeois pour arranger ses affaires, et Harnois a dit que monsieur Forrest n*6toit pas la. Rendu un peu plus loin que le march6, nous avons reii- contrS monsieur Heifrter. St. Pierre lui a dit qu^il avoit re^u un subpoena, et ii demanda a Ic voir, eta pris I'ordre, sur 9a J6 lui a dit quMl nV voit rien k faire avec, et il a remis Porare a St. Pierre, et ensuite nous avons 6t6 a Toffice de mon- sieur Gale, qui est, a ce que je crois, du conseil de Milord Selkirk.(-) St, Pierre was here called on his subpcma, but did not appear, upon which Mr, Stuart requested the (/^ fault might be entered. Mr, Gale addressing the Court, stated that as his name had been introduced in a manner that might ere- (»<»)0n going «ut pf Mr. M*Kenzie*8 office, one Harnois, a voyageur, said there was, at tiie lop of the Mrect, a friend or a comrade, "who wants to spealc to you." He answered that he could not go, that he was going to hi^ employer's office to settle bis concerns, and Harnois told him that Mr. Forrest was not there. .Being got a little farther than tb.e market, we met Mr. Heurter. St. Pierre told him that he had received a sub- poena, and he asked to look at it, and took the order, upon which I told him that he had nothing to do with it, and be re* turned the order to St. Pierre, and we afterwards went \o (be office of Mr. Gale, who is, I believe, of counsel for my Lord Selkirk. 343 hew oso. 'Ken. ^u'il y arade^ u'il ne de son ^mois a Rendu na ren- i a dil ada a Ic m'il n'a- Ire k St. de mon- onseil de but did the d^ 1/ 05 his ight cf e- Harnois, a a friend or [bwered that 5r»g office 10 J Forrest was Iket, we met Uived a sub- 1 order, upon I andbeie- *^ent to tbe for my ^^^ tile an nnfavoUrable impression as to the non'Oppear- ante of Si, Pierre, he was desirous of explaining his eonduei to the Chief Justice anJi Court, T%e Chief Justice remarked that, though his name had been intro- duced in the course of the trial, yet it had never been mentioned but with the greatest respect, he was sure, in this Court, and thai, if thought necessary, the Crown officers might call Jnr, Oak, but he (Jhc Chief Justice) did not suppose that they would, J\fr, Gale rejoining thai had his being called upon rested with himself, he should not have interposed the observnlious he had made, but as it rested with the Attorney-Gcnc- nd, he had felt himself bound to protect his own cow duct ; should he not be called upon, he should, (ffcr his honour'^s observations, consider the omission to evince that it was unnecessary, Mr, Stuart, then rose, and intimated to the Court, that the chain of evidence the prisoner'' s counsel had propos- ed to pursue, was here broken ; that they were desirous of shewing a variation between the testimony given by certain witnesses at the proceedings in March on this subject, and those during liie present trial. There being no more commissioners in Court, than regnircd by the patent, he did not know what course the Co.irt might approve, to enable him to attain this point, which he constaered important. The Chief Justice enquir- ed, (Mr, Stuart here hesitating,) wlielher it was the wish of the gentlemen to examine him, and being an- swered affirmatively, stated tluit the difficulty was : If I come down from this bench how am I to eet up again, for it iu as yet an unsettled point, whether a judge can retire from the bench, be exnn\incd, and resume his seat on the same trial, jifter some colhqmtd conversation between the bench and the bar, in the course of which his honour the Cluef Justice, recognized as sound law, that if the interest of the prisoner was to ^e promoted by the examination trr ■** .■If* 344 hifni$lf, howener inconvenimi H might U^ ysiU uoa a paramowU right which his counsel were enhfied //} insisi on^ but that in the prescni cass^ perhaps^ no difficulty might present itself^ as his learned brother^ Mr, Justice Perrault^ who sal on the trial in Murch^ might be examined^ as he was not on the bench on the present trials which intimation being adopted by the prisoner'*s counsel, Mr, Justice Perrault was mii for, but not being found, it was agreed to prcu*d with other evidence, and to obtain the judgeU attend- ance to-morrow* •.tf i ::■ Wm. bachelor COLTMAN, £8V on that point ■> IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 11.25 l^|2£ 125 ■so ^^" ^^H ■^ Uii 12.2 us Si u L£ 12.0 u LA. 1 1.6 Photographic ScMices Corporation 23 WIST MAIN STREfT WnSTBI.N.Y. 14SM (716)«72-4S03 >' OV '^J'' ■' III !» \ I I r u I 346 or to arrest, imasinaiy culprits, that he got th^m, sent them, in conformitj to the act under which the warrant issued and was executed, to Montreal, and had then gone awaj. There, every thing might have been justified, because it was the legal exer- cise and prosecution of legitimate authority. Let it, on the other hand, be supposed, (it is an imagin- ary casb only that I am putting,) but let it be sup- posed that, from very different motives, not to take alleged culprits, not to execute a legal war- rant, not to pui-sue a legitimate and authorised course, that of forwarding those whom he might arrest to a Court where they would receive pro- tection or punishment, according as they merited, let it, I say, for a moment, be supposed that a magistrate could be found so lost to all sense of duty, so insensible to bis own honour, so regard- l<3ss of those laws which he was bound as a magis- trate to enforce, and as a subject to obey, that, un- der pretence of executing a legal process, he .should array a military force, lay siege to, and carry by assault, houses and stores, seize and ap- propriate to his own use their contents, arrest, ^nd confine indiscriminately, the proprietors, their clerks, and their servants, tamper with them in .their confinement, liberating such as came into 'his views, and confining more rigourously such as opposed them ; I say, if such a magistrate could be found, would the legality of the instrument, from its having his seal and signature, be a justi- fication for the outrageous course of procedure I :faave been imagining ? surely not. What ground is there thep, m the present instance, to say that the Earl of Selkirk as a magistrate made a legal entry, that in first issuing, and then in the mode ho adopted to execute, liis own warrant, he had no view but that of tlie upright and enlightened joaagistrale, that no private or interested suggcs- 347 the fort, he instantly ^cL'"T' u"^ S'""'^ •«<» off the guise he had cloaufi, characters, threw Pfculp,?ts,itwasproperlv h """'^7'"'' ''"^te'd got possession odtTl^fu^" "*•?*«''' «nd having fie staio' as suited his fienj'^'''' % '''"•t. therf ten months. To sal j W?h" '"'^' *'^' «'?'". or ^d aggression was Ye l^.fj'' i^-;- "f vfolence moD sense. To say that ft {L "''^'7. *° ^V™' gravated abuse, if not f.''.-^- "*" '"<='' a" ag- terial character as to Ifr?",!'""'"' "^'he 'nagil- hostile rival, is, S^fJif tl^''''-ate in the g"age, not only of common? '''t' ^^^ '«"" also, (for I might muS?^"?*.' ^"' "^the la«r y, that the mVme^t aufc"/''?"'r^'''''>"tend,T .eases, and the tag^f^^ 1r'' \"*°"*> only a private indivSuaJ r S- i.®*^^''' '''comes entry of a sheriff u^n 7 Writ o/^"" '"?'*"'=« "»« &sed admission, thre„tr7« .k *r."''°"' '^ fC" legal entry, and he miX ^"^^ ^°''*"'''«' « a the amount snecifie^ in^K rit ht' Y '• *° ^''^«'- demandmg admission by virtZ 1 Ak '^' 'f ''^'J °^ h.s wnt, he proceeded [oTSltlt.'""'"''''^ ^'^ Pr if, having obtained ent,^ • ! °, ** Premises, cover the hundred n„.. f^' '".***^'^ of levying to , he should ^.SlPtlT£tf '■" '•'"' P--i *7 to the amount nftu ™'®5^®^en"v seize prooer. . .pen I contend that it is eS f J^^ "'"'«« -^ "o. *« subsequent conduct 0^1'/°'; '"^. ''^ ^^ve >«=ause I Contend that thl ^"'l "^ Se)kirk, he necessary power tV """"r' ''« cweeded hn, that he^Xnged Lrr °''*^'*'«=« ♦» ««•« ' •angea Irop the magistrate* to jhe 1 1 1 V .1 I'i M i'j 1 II iH \ '"'l!^' i;i » ^ ,;l. V * 3^ ^i ^ '* tfe> ' JO- ->' 1 A 348 private individual, on this sound and general prin- cipal, that authority abused, ceases to be authori- ty. It is unnecessary to enlarge on this point, as ive daily see or hear of civil actions to recover damages in cases of abuse, or excess, in the exe> cution of processes in themselves legal. In advert- ing to the Earl of Selkirk, it is not to influence the jury as to these disputes, nor is it to address the passions on the conduct of the noble Earl, and the other great commercial company ; I should be unworthy of the gown I have the honour to wear, did I attempt it, but I can not do justice to the prisoner, except I prove that the Earl of Selkirk, by his subsequent conduct, lost his character of a magistrate. This I intend to do by shewing, that at tne date of the lotter I have asked for, his Lord- ship remained in possession of Fort William, and must necessarily, from that circumstance, have acted as a private ijidividual, and De Heinhard being therefore in ^ state of illegal duress, bis confession is good for nothing. Mr. Vanfelson having brief y gom over th^ sam argunieni in French. Chief Justice SewclL — Let us see how the ques- tion comes before us, and our decision will be evi- dent to every man of common sense, to the com- monest of the common, i^s it strikes me. The un- fortunate individual at the bar is accused of the crime of murder, and it is yet in suspense betiireen him and the Crown, whether he is guilty or pot guilty. He is now on his trial before nis country^ and we are bound to receive every thing Q0ered jn evidence for hitn, and every thing offered in evidence against him, as far as consistent with sound legal rules. These can not be broken in ppon to accommodate either party. How then stands the case at this very momenta I h^ve he ques- "l be evi- the com- The uD- pf the between [ty or pot country^ pffered offered in :ent with ►roken m ow tben I have 349 made, (says the prisoner,) it is true, a series of confessions, but I will shew such an influence on my mind at the time of making them, (arising £i*om the hope of benefit, or any thing you choose,) that they ought to be destroy ed. Prove then the cir- cumstances producing tnis influence ; this you do not attempt. Again, supposinj^ the confession signed the 28th October, and dehvered in Novem- ber, bad been delivered to a gentlemen acting aa a magistrate and received as such, what can oc* currences taking place in the succeeding April by possibility have to do with it ? certainly nothing. By no possibility can they affect or alter tlie act finished on the 3d of the previous November. You contend that we ought to receive it, because the confession was taken by a magistrate, we decided that we could not but receive the confession, but not as a confession under the statute of Philip and Mary, and we traced authorities to shew yau that we could not refuse to receive it as a confession at common law, and we received it as a paper deli- vered by tht prisoner to the Earl of Selkirk as an individual, and not in his capacity of a magistrate What then had it been delivered to any body else, or had it been a viva voce confession before any other person, we should have received it, as we did his previous verbal confessions to captain D^Or- sonnens, Vitchie, and others. Under this v^w, which my learned brother as well as myself takes of the subject, I am decidedly of opinion your question can not be received. Mr, Justice Bowen. — I oan not see, for a mo-* ment, how we can entet^tain this question. We are not now enquiring whether a civil action would lie, not enquiring whether Lord Selkirk entered the fort as a magistrate, or if so, whether he kept it too long, and thereby lost his ^magisterial cha- racter, we have not t^keo this ^otifession as a con-f I n ^•1 f lif m ■ft, ifi^t 350 icssion taken befdre a magistrate. It is taken as a narrative made by the prisoner himself, the lat- ter end of October, or beginning of November, of events that had previously transpired, and of the share which he had taken in them. What effect ran what passed in the month of April, 1817, have on what was done in October or November, 1816? could the transaction of the former period be at all changed by what took place at the latter ? it is certainly contrary to common sense to suppose it bould. The question must certainly be rejected. Mr, Stuart, — I would request your honours to insert my question together with your honour's decision thereon upon your honour^s notes, that we may be able hereafter to refer to them, should V9e see occasion, as I think probably we shall. Chief Justice SeweiL-^Yoii wish to go into an ex- amination of what took place in April. Yon ask us to admit evidence of the 3d April, 1817^ to a fact which transpired on the 3d November^ 1816^ prima facie the tnibg is impossible. Next, you ob- ject that Lord Selkirk was not acting as a magis- trate, that we have decided is no matter, for that we have not admitted the confession under th6 statute of Philip and Mary, but at common lavr,' so much you may certainly have down if you think proper. Mr. Justice Bowen.-^We have taken it thus. Mr. Stuart, for the prisoner, being called iipon toi state what he meant to prove by this letter, an- swered, " I mean to prove that his Lordship re- tained possession of Fort Williaiii up to that time, and 2d. that he (Lord Selkirk,) did not act as a magistrate in receiving the confession of De Rein- hard." Mr, Stuart, — I beg the Couft^s pardon, biit I believe 1 am not so fortunate as to be clearly understood. I intended to prove by the witness .% ten as le lat-= jer, of of the ; effect ^, have 1816? ) be at r? it is )po8e it jected. lours to lonour's es, that I, should ihall. to an ex- iTon ask U7, tea L you ob- a magis- for that nder the mon lav^» nifjo" ' it thus, d upon id jtter, an- dship re- that time, [t act as a "DeRein- m, hut I le clearly le witness 351 the possession of the fort by Lord Selkirk ; that f consider a question of fact, the other is a conclu* sipn of law arising from the argument I. have had the honour of submitting, and I take these to be points widely differing from each other. Chief Justice SewelL — I will read to you the opinion of the Court upon your proposition, as we now understand it. Your question to Mr. ColtmaOy was, "have you got the letter?" upon Mr. Stuart being called upon, he stated to the Court, that he wished by this question to prove two points: 1st. that Lord Selkirk had remained in possession of Fort William until the month of April, 1817, and from thence to infer that he did not act as a magis- trate when he received the prisoner's confession, and therefore that it is not entitled to credit, the prisoner being in duress. The Court decided that the letter can not be read for either of these pur- poses; 1st. because Lord Selkirk^s possession on the 28th April, 1817, could not, by any possihili- ty, have innuenccd the declaration of the prisoner De Reinhard, made on the 3d November preced- ing, and 2d, that the Court have rejected the ex- amination said to have been taken by the Earl of Selkirk as a magistrate, because it was not prov- ed either by Lord Selkirk or his clerk, and receiv- ed the paper written by X)o Reinhard, and then delivered by bim to Lord Selkirk, not at all as an examination under the, statute of Philip, and Mary before a magistrate, but as a piece of evidence by confession at common law. Mr. Stuart, — 1 did not call Mr. Coltman to prove that Lord Selkirk acted as an individual^ and not as a magistrate. De Reinhard has made a confession to Lord Selkirk in November, at Fort William, he (Lord Selkirk) at that time being in possession of Fort William ; that was already in evidence. I then wished to have proved that in ; fi' m 11 i I! '■ - *,r I Mi' \i. 1 35 tt ■'i III N I 4 '1 t •*4'l' r ^ it'll i ' t ill li April, 1817, Lord Selkirk still retained the po$- dession, and to do it I purposed to hare produced a letter from bis Lordships from T^hich I propos- Ifd to derive certain legal iriferetices. I shoC^d be extremely concerned if the Court thought 1 would attempt such an irregularity as to oSestion Mr. Coltman upon the capacity in whicn the noble Earl acted. Mr, Justice Bowen. — Yotir wish of having an entry upon our notes of your question, and the decision of the Court thereon, is, I believe, com- plied with. I have made this minute of it. Mr. Bttrart, for the prisoner, being called upon to state what he meant to prove by this letter, an- swered, '^ I ^ean to prove that his Lordship re- tained possession of Fort William up to that peri- od, and from thence to infer that he did not aet at a magistrate, out as a private individual, when he received the pretended confession of the prisoner^ and that it was not entitled to credit, the prisoner being in duress." This the Court overruled, he- Cause it is immaterial, updn the present issue, whether his Lordship retained possession of the fort for six months, or six hours, and because the Court did not admit yesterday the examination of the prisoner said to nave been taken before his Lordship ns a magistrate, it not being proven, but ftdmittea the written declaration of the prisoner, signed on the 28th October, and. afterwards deli- vered to his Lordship, in the presence of the wit- ness Dr. Allan. Jlir. SiuarL — My object was to shew, from this letter, a fact, and thence to infer^ as a legal deduc- tion, thsit the pretended confession could not have been taken by ^e noble Earl, as a magistrate, be- cause he had divested himself, by his conduct, o( ihe qualities of a magistrate. Also, that if receiv- ^ by the Court as a confession made to the Earl 353 t.methauhep„,«,«, J*/,.7;«^^ taken at a I wish the 6,urt to no(;r« fi^ '^'"*J?"'*''"-e«»- twofold. That it can ITL i' "'^ °^>'=««'° « «on, or examination, Ufor„o*''''^ asaconfes- on it* face, it purZ,.,„TK .'?.''«'''*"**• '»'uch» in any other capacity h«.« to Lord Se kirk daring, he was Kate^f^Hel",' .*" "•»• "f^^- «nr ailment is, that as ^1^' *'?'*'"" '" «>rie£ a confession, underthe eteSte "°* ^^'T*''^*'' »» evKlence at common lL«I°it' *' » ?'«=« of per of the prisoner's oiTn ^'" "■"•«'' " « a Pa- delive«d to Ws UrdX h?r""°" "»*• «"«S. ^io which his tSr.^fed?af "'P''^^ Jaw, being HiereforeimiaterW." *' *'°"'®«>'» ^^«»eW«,«r««««/^^,^5^^_ m 'I •4' ■1;, if^:' "'I'mi fil 'Vr.l^i' -Hi* 354 Coaduire Die jUinbatd a MonU^al, ct le commet* ire a la prisoOf et le warrant commandoit au jroo- lier de le recevoir. Je connols Jeao Baptiste Des- Diarais et je Tai vu la.(") ~*->CAiy Justice jS«M;ei/.— Were you not, Sir, to- gether with Mr. Flother, the only magistrates of the Indian territory at that time ? 0:,JUr. Coliman,^ could not exactly answer that question without reference to acts and commis- sions, but I think we were. It was a matter of public belief that after Sir John Sherbrooke^s pjtoclamation there were no other. *'hr. '■ ■ ■ y< ■ Examination resumed by Mr. Stuarts I Mr* Sttiart*'^0^ avez vous vu Desmarais ? wMr, Cokman. — -Je I'ai vu ensuite au Lac la Pluie. li etoii amene devant moi par un nomm6 Michael M'Donell, a C£ que je crois, comme un homme au service de Milord Selkirk, et dont il seroit a pro- posde prendre quelaue temoignage. C^etoitvers ic vingt-cinquieme de Juin, je pense, mais si la Cour me permettroit d'examiner mes papiers, je puis dire exactement. C'^toit le vingt-cinqiiieme de Juin, par sa depoBttionque j'ai ici. Je connois un Sauvage de la Riviere Rouge, communement appeie ^> Fils de la Perdrix Blanche.'' Je Tai vu |f^«) I left Qjilebec last year, and on my route to Red River, I passed Drummond's kiand in Lake Huron, and it was there that I sa.w, the f nspnef at the bar fer the iiist time, ^t was the thirtieth of IHlay, or tlie first day of June^ 1,817, as I believe. Wbeul saw De Reiqhard the first time he appeared to me to he at liber* iy. He was not confined, but he. was there with one Murphf, iiho, I understood, was a constable, !and I belie?e that be wai under his surveillance. I addressed, conjotnU/ with Mr. Fletcb- ejPj ^warrant to that Murphy, to convey De fteinhard to Mont* rtal , And to commit him to prison, and the warrant commanded j the gaoler to receive him. I know Jean Baptiste Desm&iais, Md isaw him Uiere. y w 200- Des- ir, to- aites of Br tliat ooitnU- giUer of >eooke^9 te5 ^^Idsicurs fois darn cette province, et pour la i^eiw i)i<$re fois, ie Tai vu, vers \% fin du mois dii Fev- rier, dam le district de Montreal. II n^ pouvoit pas parler Frangois, i ce que f ai compris. Jb pense qu'il connoissoit un peu de mots, qu^il d6« oitoit peut-etre quel^ues mots. Je connois un nom- ine M'Nab, et je IVi vu 6crire. Mr. Stuctri, — Re^rdez cette lettre, et ayez la bont6 de nous dire si e*est Tecriture de John kl'Nab?(*n Sokciior GeneraL-^ should like just to look at this letter, (having examined itA it purports to be a letter from a Mr. John M'Nab to a captain Matthej. What can that have to do with the case ? 1 submit to your honours that it is totallj irrelevant, and ought not to be entertained. Chief Justice SeweU.'-^Ypu are rather prema- ture. Wheli Mr. Stuart proposes to make it erf" dence will be the moment to eonsider tvhethchr it il relevant or irrelevant. ' Examination resiim^ bj/ Mr, ^tudri, JkTr. iS/uarl.-^Is this letter, Sir, according to your judgment, the hafid-writing of Mr. John M'lN^b ? f I, ! \\ \ H : ii % '**) Mr. S.' — Where did yoii see Desmarais. Mr. t!.-^l saw biiu afiervi'ards at Lake la Pliiie. He wail brought before me by one Michael M*Doii^li, I belief e, a$ a nan in the serf i(ie of thy Lord SeMtifk, from whom it would ha right to receive some evidence. It tf as, I thinjc, about the twen« t/fifth of June, but if the Court will permit me to examinip mjr pa()ers, I can tell exactly. It was the twentyfiftfa of June bjr tisdeposition^ which I have got here. I ktiovr an Indian from Red River, commonly called Fils de la Perdrix 'Blanche, t bave seen him several time^ in this province, atid t|)e last time I saw'him, it was about the end of the month of February ih th# diiitrict of Montreal. He could not spe^k Fretfch, as lundei'- tlood. I think be knew a few wordsj that be coiild p^bnounee^ |ferba]ps, some words. I know one hamed M'Nab, and.I bav^ lecnifm write. .tfr. ;$.~Look at this letter and have the goodneui tos^ 'tfaether it is the writing of John ^I'Nab. ill ■I m ',1 - •;• ''■I / 4' 'd! *'«' « f»«Vd oa the defence! To „ffi "S^**' '■"«'«l» fetter purportiniT (o b^ frn^^'^V "i'J'"'*- »» « a and tho«grf«,ii ° conter ^ '^'■- ^"^ ^'Nab. . hrhethS-it be read o" ^ , V'''^*''^ '""""""• object to it, because it L^-^i ("*' ", ""Z ^"^7 to bestevidence which from A ^"'''^- '» '« "ot tJie M Dot a testimony nnnn 1 "''Jection is that it M'Nab'm such % TLV' »»' a deposition of *?. Ae deponent Va'ttdThl "^"4 P«>"°d *« Court, thej would brenli/ed fT*'^*"''' «'' Neverthe e«8 mv JeamnJ % • . " '^ ''a^e let in »( M'Nab, (thL^ugHhl tt '■'L'^^ -''^ence mght not haVe bfen Sen? ifl "^l\ "«' ^e '^rhnn,) resort in tClX , \*""^ ^°°^^ f^rj testimony. Thlt ! ,? 7n **• ''"'^ ««" We is eW&ent in a moment fo' l°r "^ .'"admissi- «v'dence, it would put h intoV""' '"""'^ «« /*o persons to destroy anV. *«.P<>wer of any fetter it never camTC/ thf?'""- ^ «» *.{ 6owthei*fore could hi, cl^", r'T"" * '««''«' I will not trespass fijrther?,! *r ,• ^^^ *'"' ^7 't ? ™fe that the ti«.* "f, emitted on the o^nprnl 'ifh .•»thT^«:';rte ""i "r p'-^S » "focument not made o„ '/h J"" -''f *«* « « "--was in possessio^of hfpit* "'''' """ ,.U. :i I iii: ft'l * Mi.'!" J .v.|^i !. :H '4,1 558 * S^Uciior Gmeral — It really is hardly necessary Ihat I should pccupj the attention of the Court on a point I consider so ver^ clear. The evidence tendered bj my leajpnedu-iends is, I contend, con- trary to every principle, though they endeavour to establish its admissibility on the ground that they may resort to secondary evidence in the ab- sence of the prif^ary; undoubtedly they maj, when they baVe proved a legial impossibility to produce tjie primary. Have my learned friends subpcenaed M'Nab ? if d:ie^ have, and he has not appeared, where is their i^rrit of attachment, against him? if even they had used their utmost endeavours, by taking the&e indisjpensable prelimi- nary steps to the introduction of secondary testi- mony, and after.all could not have founds him, it would be a misfortune for the prisoner,, but could form no ground for taking as evidence a, document not supported by oath. Suppose there should be occasion to indite M^Nab for perjury, how can ii possibly be done upon a document not subs^utiat^ ed by oath? letters directed to a. defendant,, and Aever having reached* him, have nevei^ been re- ceived as. evidence. It is unnecessary to remark that letters pretended to be written, to a defendant might be made to affect him bothwKys. Accord- ing to the views of the writer, they might be made to prejudice his case, or to benefit him, though! do not see that this letter can do either. This case, however^ is much stronger, for it is not a letter to the defendant, but to a third person, and which^ I believe, it is not pretended the prisoner ever saw. On the whole I really consider I should be trifling with the time of the Court, were I to ar- gue further on this business. Mr. S/tear/.— *I have the honour to submit that the evidence I tender is clearly admissible. This is not a letter fabricated a week or ten days ago^ ■ , ;> ;■ -r^.-(fc sary rt on ence con- aivour i that le ab- may, lity to friends le has chment. utmost pteVimi- py testi- , him, it ut could ocument houldlDe iw ean ^ ^git^ntiat" Mt,, and been re- to remark iefendaot Accord- It be made, though I icr. This X is not a rson, afli le prisoner •ri should -re I to ar- lubmit tbat )le. This days ago^ 359 to give a ccJoui^ittg to our defeBce. It was made in we countrj where the pretended confession took place, find being found long affo, mutilated and torn, in the verj neighbourhood of Fort William, was put into the commissioner's hands. A letter ofthia tenbr, being so found, might of itself fur- nish strong grodnds of suspicion, and be at the same time powerful evidence of its genuine char- acter. We have indeed proved the hand-writing bj the honourable commissioner now under exa- mination; Much to our astonishment, the Earl of Selkirk is not here to give his testimony. W0, knowing of thi^ pretended confession, did not sub- pcena Lord Selkirk, not doul^iting but he would be brought here on the part of the Crown. This confession w^ a matter of such public notoriety, from its having been printed and, circulated with the greatest avidity, that we never questioned But bis Lordship would himself have felt it his duty to attend thbugh not ser ved with a subpoena. In the absence then ofthe noble Earl, from whom^ were he in the box, we might draw the most important information relative to this confession, { should, with confidence, submit we might, consistently with the rules of evidence, introduce this letter* From whon^ is this letter and to whom is it adt* dressed.^ it is a letter from M'Nab, (whom -we could not get here,) in the service of Lord Selkirk to captain Matthey, also in the service of Lord Selkirk, relative to De Reinhard. I should con- tend, as a positive fact, (to go no farther,) which the jury can draw what inferences they please from, that we have to prove that at about the time this pretended confession was made, a letter wd9 written from M'Nab. in the service of Lord SeJr kirk, to captain Matthey, who was also sosituated^ with the exception that he was in command, _and therefore more important to u« to proyCir : '^tl ■KB '■'•i/ •iflai I"' 11 }« ' mrm >r' t } 360 letter, (wliidi we ptodace,) will shew that mefr* sures were resorted to to obtain a confessioD. It will then be for the jury to saj whether this pre* tended confession is that free, that voluntary, de- claration which it has been represented to be, whe- ther the circamstanoes we have proved do not con- tradict such a supposition, and therefore destroy its credibiliij, corroborated as thej will be by thi& letter. Mr, VaUiere de St. Rial, in a very fetp words submiifed to the Court, thai, although it might not bt that strict evidence which would be required against a prisoner, yet as it was a part of a circumstance fa- vourable to the prisoner, the Court would not refuse it, as the consttmt practice of criminal Courts was to relax the strict rules of law in favour of the accused,^ if necessary to let in testimony on his behalf Chief Justice SewdL — ^The Court are Under the absolute necessity of refusing to receive this letter, inasmuch as it is not possible to bring it within any rule for (he admission of testimony. The ar- fument for receiving it, is completely broken down y the circumstances which belong to the letter. Here is a letter from a Mr. M'Nab, to a captain Matthey, (who, for ought shewn to the contrary, might either, or both, have been produced,) of one of whom we have not heard till the present mo- ment, and of the other only incidentally during the trial. Is it then to be said that merely be- cause Mr. M^Nab is not produced, (I do not mean to say that it is any booy's fault tnat he is not,) or that because he is not able to be produced, that therefore we coahl receive any thmg he said or wrote merely because he could not be so produc- ed } most assuredly it will not, unless it was some- thing that had passed upon oath, whether it re- lated to writiDg or utterance. It haft been sug- neSK . It pre-, , de- whe- ivords I not 6e. against ancefd' )t refuse Is was to accusedy ludct the fiis letter, it within The ar- len down the letter, a captain contrary, id,) of one Bsent mo- fly during merely he- not mean je is not,) Juced,that [he said or so produc- ^as 8ome- jther it re- been ^^^ 361 gested that admission might be given to this testt* monjf under the rule that where the primary evi- dence could not be produced, that then seconda^ ry might be resorted to. There are cases undoubt* ediy o£ that nature, as where the magistrate is not able to travel, and had no clerk at the time of tak- ing a deposition, or in the case of a coroner, then the affirmation that the best evidence can not bj possibility be exhibited, opens the door to the re- ception of secondary, but the incapability of pro- ducing the best must be first proved. This is the general rule, not only as to written testimony giv- en under oath, but also in viva voce evidence. It is also ur^ed that, as Lord Selkirk is not here, therefore it ought to be admitted, but the ques- tion immediately presents itself, ^^ why is he not here?" have any measures been taken to secure his attendance ? it is not enough to say that you expected, from the nature of tlie case, he would have been here. If he was an important Witnesa for the defence, it was certainly the duty of those entrusted with it to have taken the requisite steps to secure his attendance. Having failed to do so, you can not certainly be permitted to plead your own omission, or to avail yourself of your own laches, as they are termed in law ; nor is it com- petent to you to say that you relied upon his being produced by the Crown ; if you wanted the Earl of Selkirk as a witness, it was undoubtedly your basiness to provide for his appearance by using those means which the Court have the power of furnishing you. '^tiomey^Generdl. — We have subpoenaed the Earl of Selkirk, but his health prevents his attendance as a witness. Chief Justice SewelL — That does not signify. If De Reinhard wanted the Earl of Selkirk as a wit- ^1698) he should have summoned him; he is ^itl^<^ '^m V.,, 11 i'-ilfl iif ■imi : ;;l \ iii thejurisdiclion of this Court, and his attisndancft might have been secured, or his absence account- ed £br in a satisfactory manner, so as perhaps to admit testimony, (which can not now be receiv- ed,) to prove that promises were made by hioi, according to what you allege. Another ground upon which it is incompetent to you to ask' to intro- duce the letter is, that supposing you to have been under an expectation that the Urown would bring forward the Earl of Selkii^k as a witness up to the fir^t day of the trial, you could not have imagined so since. The circumstance of the wit- nesses being, called over on the opening of this case on the 22u, gave the prisoner and his counsel sufficient notice that neither the Earl of Selkirk, nor captain Matthey, were witnesses on ^he part of the Crown; why not then remedy the oversight, it is now a week since this trial commenced, and there has been sufficient time to have compelled the attendance of both the Earl of Selkirk and captain Matthey; you can not come inta Courts and expect to avail yourself, not of ordinary^ but of extraordinary, laches. A third reasbn there- fore for the Court refuging^ your applica^on, is that a&the witnesses were called over on the 22d inst; the prisoner as well as his counsel^ knew, or might have known, that the Earl of Selkirk and captain Matthey were not called by the Crown, and con- sequently they might have then have subpoenaed them, if not before. Another reason that this let- ter can not be made evidenoei tis, what can occur- rences in May, 1817, have to do with what took frlace in November, 18:16? if it is alleged that he letter has no date, for what reason are we to suppose that it was written before, any more than after, the confession^ I do not imagine that there ^xists any absolute necessity for itf indeed the ve- fj face of the letter warrants a ooiitrary conclusioOfi unt- IB ta ceiv- him, ound intro- have vvould 3SB up have is c&s^ joonse! be part er sight, edv and mpelled irk and , GouTt, ary^ hot 1 ihere- 1, is that ;2d iflst. »r might captaitt [and con- ipoenaed this let- ^n occur- jat took Iged that tte we to. jore than [hat there id the ve- ,ncUision.i 363 What can that part of it refer to which epeaks of the promise of De Keinhard, if it does not refer to the confession ? Does not this very qncertainty: shew the necessity of better evidence being pro^ duced, for^ if we are to presume, we may pre« same unfavourabl^r as well as favourably, for it we evade the rule all is hazard and uncertainty. For these reasons I am compelled to, say it can not bo received as evidence, however unpleasant it is ta do so, and it is not only unpleasant but very much go, to decide against, or exclude, any tbiu^ which the prisoner, or bis legal advisers, m their judg- ments consider essential or serviceable to the de- fence, but in the performance of our duty, we can not help it, and called upon as we are, to decide^ I am bound to say it is totally inadmissible. Mr* Justice J?ou)eii;-7-I am perfectly of the same opinion, but for many reasons I hope it will be ad- mitted to be read after the case is closed,^ so that nothing whioh the prisoner or his counsel may i^ave thought important, may have been kept from the jury, though to me it does not appear that it can make either for or against either the one par- ty or the other. But, as we are called upon t^ legally decide the question, we can not but refuse to receive the letter^ and for this obvious reasoa that the letters of third persons^ never having come to the possession of the prisoner can not be evidence. A prisoner loses nothing by this, for if letters of third persons were to be admitted a^ evidence ybr, they^ must also be admitted asaimU him. That no benefit could accrue from the ad- mission of letters of third persons will be evident in a moment Suppose such a letter to state cor- rectly the circumstances, and to prove the inno* cence of the accusedi then it would be in the pow*^ er of any iourth person to accuse by letter, aud^ llthou^ the prisoner had nothing to do witl^ it ai 'ifeSI m ■■A 'A :lrl! 'h ..iV?> 364 all, it might be made fviclence aeainst him, ahj thus reverse the whole preceding favourable testi- mony. The verj same question occurred in the case of Colin Robertson recently tried at Montreal. It was wished, on the defence, to produce a letter from Cuthbert Grant, shewing from that letter that they had reason to apprehend that the Bois Brules would come down upon them ; but its ad- mission was refused on ihk very ground, that let- ters of third persons could neither be evidence for, nor against, a prisoner. It is stated that its having been torn is a suspicious circumstance, because it manifested a wish to conceal its con- tents. This is mere presumption, and if W^ are io presume, we may presume all roitnd, and see how it will work. May it not be presumed, on the other hand, that there could not be that ^eat anxiety about it, or the more effectual way oi de- stroying it would have been resorted to ; it might have l^en burned. It was torn and scattered to the winds, where it might be, and indeed has been collected, whereas if it was what it was wished should not be known by another, why not destroy it effectually? why not burn it ? the letter is with- out a date, it is true, but there is a part of its con- tents which indicates about what time it must have been written ; the breaking of the ice of th^ river alluded to in thie letter, plainly shews it could not have been written in November, but must have l;>een penned about the time the indorsement spe- cifies. It is however perfectly unnecessary to comment farther upon the subject, aifter the very clear exposition bt my learned brother. Called upon as I am to decide upon the admissibility of the letter, I must d^ide legally, though contrary to my wishes, for I Wish it might be read for the reason I have before assigned, but sitting here to fidnait only legal evidence^ I can not consent to 365 jBti- the Btter etier Bois ,9 atd- it let- dence at iti tance, ;s con- jv^ are tnd see, on the b great of dc- it might leredto as been ■wished destroy is with' its con- jst have \h^ river tould not ist have lent spe- isary to itbe very Called fibility of contrary for the here to Insent to admit that which is so palpably ooposed to everj prineipie of law, yet I wish it mignt be read, lest such an omission might be supposed to be a shut- ting out from the jury of a material circumstance in the prisoner^ favour, and I wish that not only this letter, but, the other also should be read, if the (j^rown officers do, not think such a step incon* sistent with their duty. I beg to remark to the Attorney and Solicitor General, that I, by no means^ wish my reniarks to be contndered as di- recting them what course to pursue, but a merei expression of a private wish, for which 1 assign my reason. jlttornejf'General, — I have no objection to their being read. I consent to both letters being read. Chief Justice SewelL^^het it be entered thus: read by consent of his Majesty^s Crown officers. Read a letter from Mr. John M^JSTab to captain Frederick Matthev^ (Jlfpendix E,) Chief Justice SeweU.-^Do you wish to have thei letter of the Earl of Selkirk read .^ Jlfr.. S/war/.— I do not know yet. I can not speak cf a document that 1 have not seen. When I see it, I shall be able to determine whether I wish it read or not. Mr. Justice Bowen. — I thought you called for it yesterday, and that the argument which we had, was because tbe Crown objected to.its production* Mr, Stuart. — I very distinctly staled that my object was to prove that at a certain time Lord Selkirk rei^ained in possession of Fort Williamf and in endeavouring to attain that pbject, I enquir- ed of Mr* Coltman if he, in conjunction with his brother commissioner, had received a letter from the Earl of Selkirk. If 1 saw the letter^ and it proved that circumstance, i should certainly wish It to be read; but I can not state, till I see tne let-" tor, whether 1 am desirous to have it read or not». 4 /^i r,t■ t>ii« j.i im i->S ■2i CAre/* JwHe$ StmdL^-^Vfon flmt subject joa 'mifst ex6>rci86 your own discretion, amd Mr. Colt- man his own pleasure. WeJcnow nothing of Mr Coltman*s letters. If he likes to let you see them, We can have no objection, and if the Crown offi- cers consent to their being read, we shall present lio obstacle, but we have no controul over Mr. t!?oltnian^s letters, nor do we wish to have any. Mr. SiuarU'^ wrllput the direct question, when did Lord Selkirk leav^ |i^ort William ? Mr. C6liman,-^l was not there when he Went away ; I heard that Lord Selkirk Solicitor Generai,^^l beg your pardon, Mr. Colt- man, but ybti must not tell us wnat you heard, as it is not evidence, only what you yourself know from your -own personal observation, is suitable testimony. Examinaiion of Mr* CoUman' resumed by Mr. Stuart. Mir. CoUman. — J'ai k(^ dabs Ics territoires Sau- vages jusqti'« la Riviere Rouge. Toute la Riviere Wmnipic est k ee c6t6 du Lac Winnipic, c^est-a- dire, entre le Golfe de St. Laurebt, et te Lac Win- !nipic; etant, en efiet, entre le Lac Winnipic et le Lac Superieur.('^) Chdef Justiee iScwc^.-^-^urely, at this hour of the trial, there is no geographical difficulty about be- Sng started. Mr. jS^tfirr/^— ^No, your honour : it is only a for- mal piece <>f evidence, which we wish to put on i'eoord. The River Winnipic is, is it not, between the Oulph 6f @t. Lawtence and the Lake Winni- ("') I have been in tbe Indfistn ferritoried as far as Red l^iver. The whole of t^e River Winnipic; is on this side of Lake WinoU piCf that is to saj, between the gulph of St. Lawrence and Uk^ Winnipic, being, in fact> between Lake Wiooipic and Lake Sa- perior. , ^ yOtt ihem, \ offii- •esent r Mr. 3 vrent r. CoU- sard, as f know Buitable \Stmrt. tres Sau- Riviere c'est-a- liac Win- pic et le ibouit bc- iVy a ibr- b put on between te Winni- ce and l>« 307 jpib ? ihc^e ifomi the two extreme points of the fine^ do thej not, between which the River Winnipic lies? Mr» Coltman. — Ci^rtainlj, it is between the Gulpb of St. Lawrence and Lake Winnipic. Mr^ Justice BoweiL^-A should be sorry to say that it lay exactly between those points, as that must depend on which way the river runs. '^# €ro9s^xamination conducted hy the Mtomey^GeneraL Jtlomey'General.*-^A9 you, Sir, in your quality of Commissioner had to examine a great number of persons, you had an opportunity of knowing the circumstances of that country and the events that passed there. Chief Justice SeweU. — What now, Mr. Attorney* General, you are not, I hope, going to attempt an investigation of the state of the country, from the unhappy difierences between these companies ? Attorney^General^—ln the defence, a state of warfare has' been set up as a reason for doing a- way the confessions ; I wish to prove that what my learned f'riends have called a wifrfare^ was no- thing more than the interposition of the force nc-^ cessary to secure the execution of a legal process. Chitf Justice (Siewe//.— Do not, Mr. Attorney- General, 1 beg of you, endeavour to lead us mxa that wide field, after we have diecided that, ex* cepting the fact of Fort William hsiving been taken possession qf by the Earl of Selkirk, to the know<^ iedge of De Beinhart at the time of confessing td captain O^Orsannens, the state of the country is too remotely connected with the circumstances of* the case to be evidence upon this trial. *^ttorney-GeneraL — Do you know captain D'Or- soniieijB.? did yoq meet nim in the Indian terrl* tory? 368 ■i < , , -I-' ill '^■^*^^'" .1? fm>' hi li.'/' B'Pi 1'.'' ifmJ ii'-.fej'-^ ^■' 'fl f 4, Mr, CoUman,^^ie connois le capitaine D'Orton. nens. Je Tai rencontre dans ie territoire Sau- vage.C') Jitiomey'General'^ As a magistrate in that terri- torj, you would have an opportunitj of knowing cenerallj the characters of the persons who were ^ere ? Mr, Stuart. — I trust the Attorney-General will not compel me to object to this line of conduct, Especially after the remark just made by the Court. Morncy^Gmercd. — I am going, after that ques- tion is answered, to interrogate Mr. Coltman re- lative to captain D^Orsonncns generally, and surely i am entitled to do that after his testimony and conduct has been endeavoured to be so impeached. I may support captain D'Orsonnens' credibility on a general point of view after it has been at- tacked. Mr, Stuart— ^Omv evidence affecting the credi- bility of captain D'Orsonnens went to specific facts, not to general character. If the Attorney- General wishes to rebut that evidence, he certainlj can do so^ but he can not go into an examination in support of general character, for it has not been exammed into by us, and it is therefore contrary to first principles to allow it. Mtomeff'Gmeral'^li not permitted to go into t^eneral, I do not see how 1 am to rebut specific facts. Chief Justice SeweH^'-^We have wandered so far in this trial, that we have frequently forgot the first principles of law. If it were doubted for a moment, the very first book upon evidence I should lay my^nd upon, would clemonstrate the cor- fectness of the assertion, but it is unnecessary to , (••) I Icnew ctf^tafA DX)rstonheiia. I did mcfet hwa intte Indiana territoTjr. ^>. 369 son* Sau- terri- were \ yi\\\ iiductf Court, t ques- lan re- 1 8ure\j ny and leached. edibility been at- \e credi- speci&c ttorney- certainly mioation not been contrary go into it specific Iredsofar Wgot tbc tied for a pel should the cor- fcessary to am in tte reftr to tuthotitiM as to the Tarioni waja 6f iili* Eeaokiog the credibility of a witness^ on the one bimI, or of supporting bis testimony on the other. All that is necessary to support the testimony given by captam D*Orsonnens uray certainly be obtained from Mr* Goltman, withont overstepping the rules laid down fof our guidance on the subject. Cross-exammatioH returned by the ^Attomey-GtiMfal. Jtotrntw43en£raL — Aves veus la deposition du eapitaine DH3rsonneus paitni vos papiers ? Mr* Ctfkman.^-^rai telle vari^te des papi< papiers que personnes dans le termoire oauvaee. 11 y en a^ a ce que je crois, parmi le nombre, des declarations a serment de certains faits qui con- tredisent les declarations du eapitaine D^Orsonnens faites aussi sous serment, mais ce n^est pas si moi de dire lequel est vrai. Je ne suis pas en droit de juger les quels ont depos6 la Verite, mais je n^ai, sans doute, aucune raison personelle de douter de la credibility du eapitaine D'Orsonnetis. C^est k cause du nombre des declarations que j'ai pris,que je dis que, suivant mon esprit, les declarations du eapitaine D'OrsoHnens et d'autres pi^sonnes sont coDtradictoires, mais je ne puis pa's dire lesquellef^ sont vraies.('') ■ * (■^] Aitomey-Oeriierfll^^ltz^t 70U' got captain D^Orsbooent* deposition amongst jrour psip^rs ? Mr. Coliman. — I have; such a Variety of papers that I cannqt «ay at the moment whether 1 have, but I know that 1 took bis disposition, and t took other deposiObhs from oitb^r persom in thi Indian territory. There are amoQgst them, I believe, de'cla- ratiofis upon oath to certain facts,' which contradict the deciara- tions of captain D*brsonncns, made also upon oath, but it is not for me tb say which is true. I have no right to judge which of tbetn deposed t)\e truth, but I have, without 4oubt, do perwnat a: A" •4 370 .:» " ' -i ' if rf Mtomty^Gentral.'^X will put a general question to Mr. Cpltroan. Do jou'considei' captain D*Or- aonnens entitled to credit in a Court of Justrce upon his oath ? Mr. Co//mcrn.— -Undoubtedly ; assuredly I would. From what I have seen of captain D^Orsonncns, I think ho acted in the Indian tciritory under a strong party spirit, and some prejudice, but 1 have jio reason to doubt his honour, or the propriety ol his conduct in doing what he conceievd to be so. Attorney 'General. — Have the goodness, Sir, to give your answer in French to the jury. Mr, Co//ma«.-— Assurement, jo crois que Ic capitaine D^Orsonnens est dignc de foi sin* son serment dans un Cour de Justice. Lc capitaine D^Orsonnens a agi, dans les tcrritoires Sauvages, a ce que jc pense, avec un esprit dc parti, et dc prejuge, mais, en mon estime, toujours avec hon- neur et propriete, suivant qu^il I'entendoit.C) Attorney-Genercd. — I have done with Mr. Colt- fnan. Mr, Coltman, — I beg the Court, if not irregular, to allow my evidence to be read over to roe; (tohich was accordingly done.) Mr, Coltman^ ad- dressing the Court, said. There is one word in your honours notes which I would wish to change. I do not intend to say that De Reinhard was " libre.''(") I would rather say, " II etoit ordi- reason to doubt captain D'Orsonnens* credibility. It is because of the number of declarations 1 took that I say that, according to my judgment, the declarations of captain D'Orsonnens and those of other persons are contradictory, but 1 can not say wbicb of them are true. (•") Assuredly, I believe that captain D'Orsonnens is worlhj of credit upon his oath in a Court of Justice. Captain D'Orsou- licns, acted in (he Indian territory, as I think, with a spv^it of ■Rarty, and with prejudice, but, according to my judgment, al- ways with honour and propriety), as it ;ippeared to him. (••| At liberty. lit:':!, 371 / '1 yor- usl'tce ifvould. icns, I iidev a I have rieAy oi be so. Sir, to que Ic sur son capUaine uvages, a iti, et ac avec bon- Mr. Colt- » irregular, ;v to roe; le word in to change. inhard was 6toit ordi- I " It is because Ihat, according I'Owonnens and *»notsayvfi»cb hnens is vrovlbj tulain D'Oisou- [wilU a sp^fit ot judgwcnt, a»- Ito hiro* oairement avec un nomme Murphj. Je croia IV voir vu feult mais ordinairement il £toit sous la surveillaoce de Murphy, qui paroissoit Ic traitor avec confiance comme 8*il do craignoit pas qu^il s'echappatC'*) Morney-GetitraL — Was not Murphy a consta- ble? jl/r. Collman^^—l believe we swore him in a constable. I am nearly confident we did before sending him to Montreal with De Reinhart. Morney-GetieraL'^ls it necessary to guard a prisoner in bringing him through the Indian terri- tory, in the same manner as in a civilized place ? Mr,CoUnmn, — En traversant les pays Saiivages, il n'est pas necessaire de veiller un prisonnier comme ailleurs. II n y a pas occasion pour les memes precautions parcequ^il nV a pas de dangfer qu'un prisonnier s^evade, car s^il s*6chapperoit, il periroit nccessairement de faim dans les Dois, sur tout un etranger ; mais, arrive a Drummond^s Is- land, od les moyens de s^echapper sont faciles, il est necessaire de se servir de plus de precau- tion. (») ' . Re-examined by Mr. Stuart. Mr. Stuart. — ^What distance is it from Drum- •'■ I (*••) He was iriruany wilb one MurpHy. I b«»l:sve that I saw him by himself^ but generally he was und^r the surveillance of Murphy, who seemed to treat him with confidence, as if hh was not afraid that he would escape. (*) It is not necessary to guard a prisoner sio much in passmg through the Indian country, as in other parts. Tbe|[e is no oc- canon for the same pKcautioifis, be'cadse thbil^ fs no danger of a |)risone^s absconding, for, \(\\e were to escape, be must of ne- cessity perish from hunger in the woods, especially a Stranger ; but, when arrived at Drummond's Island, where the means of *0^flb[eiis'kVc^'&e^^^^^^^ ■July last; '* ■"'' kli .W 37% ,m ^<^.^ince that tiW av i. sr,^ '«^**^'''-'^. <'^<«^^2;' htu^ -^nd examined by Mr. Stuart. Cour dci Banc d« Roio^t „"'?•" '^T -^"S"* ^'^ '« dernier terme criminel de c^^%^'"^T '^"^ '« pile une enquete, ou Je co^^ *"■• "'* "^ «P- pour fe meurtn, dW „o„.L Swen fe '"""""'"' te? leprwonnier actuel et L «fveny, cod- MMm, et q.ieXL« r """"""^ Archibald^ Jean Baptiste^La Po,„te Tl^' ?">■•' *'«Je. D'0«onSe„% exaS c'om ' f 'P''?'"« ^'oL "•eat J'etois present toutTr *TT* """^ ««••- ««.«, tousles &S^qur«^»'rrde ' "^< '»"« J^ au ems de I'eMmen, et il^Sl * co«K«quenfe, ^td'80t.*s chores dSme^nr '^"^ ^^ "'«' ?<« «^»>oipag/ "•" *"* "'spectivemeat dans leor I «>BT«s sur Me petite^?! 'ri^' '^".'"'^ <■"'«»' ;.il i Jf If i74 I' ''% r<"M,'i . i^ ■^ ^ ^i r |^ ■ .A if! { 'A: (I s. I r U11 canot, et que Yk dedans il y avoit mobsieur M'Lellan, Grant, Cadotte,et d''autre8 persorines? Mr. Justice Perrauk. — Oui. II I'a depos^. Mr. Stuart. — Avez vous connoissance qu^il a depose que M'Lellan lui a demande, et que Ca- dotte lui a de meme demande, ^' Qu'avez vous fait du prisonnier Keveny ?" Mr. Justice Perrtwlt. — Oui. H Pa depos6. Mr. Stuart. — Quelle jouroee a-t-il dit qu'ils ont vu le canot ? i^ Mr. Justice Perrault. — La cinquieme journee. II a depose que lui et La Poiute, etant sur une isle, dans la riviere Winnipic dans Pete de 1816, )e cinquieme jourapres le depart de Jose qui s'ap- pele Fits de la Perariz Blanche, ils ont vu un canot qui venoit du Lac des Bois, dans lequel etoient M'Lellan, De Reinhard, Cadotte, sept mettfs, un ^anadieo, et Jose Fils de la Perdrix Blanche, qui avoit une rediogotte Ecossoisse sur lui. Mr. Stuart. — ^Avez vous connoissance quil a depose que monsieur Cadotte lui a demande alors, **' Qu'avez vous £iit de prisonnier Keveny ?^ Mr. Justice Perrault. — II a depose que monsieur Cadotte Ta dit en presence de M'Lellan, ^^ QuWz Tous fait du prisonnier Keveny ?". ^, Mr. Stuart. — ^Avez vous connoissance qu^il a depose que monsieur M^Lellan lui a propose la meme question ? Mr. Justice Perrauk. — Oui. II a jur6, ^* que *^ monsieur M'Lellan a fait renouveiler la meme *' question, et qu^il a repondu, ^ peut-etre on ie re- *■ trouvera. Nous Pavons laisse' sur une petite *> isle.' n a jure aussi, ^' que quand Cadotte lui ^*' a parle, M'Lellan etoit bien proche de lui, et ^ apres que lui (Cadotte) nous avoit traits (La *' Pointe et moi) de vauxriens, et qu'il nous a dit ^ bien d'aofres cfaoses dont je ne me souviens pa6 \i a present" 'i vy Bieur mes? le Ca- »us fait nis ont journee. 9ur une de 1816, qui s'ap- i un canot g\ etoient metifs, utt ancbe, qui ce q« >^ '*^ ande a\ors, fy?" . e monsieur I wQu'avez ^ce q«''^ ^ fprciose w Lr6, " q«« Itre on le re- une p«we Cadotte lui te de lui, ct : traits (l* HI nous a a»^ souvienspa^ 375 ^r. SitiarL — ^Connoissez vous qu'il a depos^ aussi que M'Lellan ne lui a rien ait au sujet du Sauvage Jose ? Mr. Justice Perravlt, — Oui. II ajouta, " mon- «< sieur M^Lellan ne m'a rien dit au sujet du Sau- " vage Jose." JUr, Stuart. — Avez vous connoissance que Jean Baptiste La Pointe a depose, *^ Que dans le terns «^ que monsieur M'Leilaalui avoit donne les coups, " qu'ils n'ont pas parle de Keveny ?" Mr, Justice Perrault. — Jean Baptiste La Pointe Mant assermente, j'ai connoissance quHl a depose, *^ Qu'il a re^u dans le meme tems et lieu des coups ^ de perche de monsieur M'Lellan. Qu'il (M'Lel- ^ Ian) avoit saute a terre du canot ct lui avoit ^' donne des coups de perche, et que dans ce mo- «' ment la, il n'a pas parle de Keveny, roais que ^^ monsieur M'Lellan lui a dit qu'il le battoit pour " avoir battu le Sauvage." Mr. Stuart. — Rappellez vous qu'il a dit, " qu'il ** ne souvient s'il avoit explique a monsieur M'Lel- " Ian la conduite du Sauvage vers Keveny qu'apres " qu'il avoit embarque .»*" Mr. Justice Perrault. — Je ne I'ai pas sur mes uotes, et je ne me rappelle pas qu'il a dit n'avoir pas eiplique a M'Lellan la conduite du Sauvage vers Keveny qu'apres qu'il avoit embarqu6 dans le canot de monsieur M'Lellan. II a depose, qu'etant dans le canot de monsieur M'Lellan, les bois brules ont dit, '^ qu'ils vouloient tuer mon- " sieur Keveny," que Mainville disoit, " qu'il auroit " son chapeau," Le Vasseur, " qu'il auroit ses ^' bottes." Qu'ils en faisoient une risee dans lo canot de cela, et que dans ce moment la les bour- geois ne disoient rien, mais rioient, et en faisoidnl un badinage. Mr. Stuart. — ^Avez vous connoissance que sur son transqucstionnement, il a depose qu'il avoit f.-»< R' t f oi >l ■ -i •Atendu un seul coim 376 de fusilt ou deux coups dc (•) Mr, J. P.— -t am ooe pf the jiiclgfs of tbe Goutt of King't Bench fur the district of Quebec, and I sat ia the month of March^ during the whole of the last criminal term of tihat Court. I re- memher an enquirj, or the commencement of a trial, in that term, upon a bill of indictment for the murder of one named Owen Kevenj, against tine {Niesent prisoner, an4 * que De Reinhard parloit Francois assez ♦' bien. Les Meurons ne parloient pas Frangois " comme les Francs." ^ Mr, Stuart, — Faye en parlant de I'arrivee du petit canot, le soir apres la mort de Keveny, a-t-il 3ocu- ;htto i callB lit, ifi idge's lat an- dit, " qu'il ne s'avoh pas si M'LeWan y 6toit voir?"C) J[^r,' Justice PerrauU. — I have not taken that Faye said so. I have it not on my notes. AiiomeyGcneral — Yfe do not wish ta trouble his honour with any questions. lat we ur ad- f us tf ferencc stimony men en- »risonerf >errauU, rown. eslionne- tendu les (;s, etle en loin." nnement, ere dont t occupe, prenoit ,e charitfe que La Francois Imes notes :on. J'a* jois assez Fran9ois [rrivee ofi jny, a-t-ii WILLIAM SAX, Sworn,, . ' Md examined by Mr* VoUiere de Si. Rial Mr. Sax. — Je suis un arpenteur jure. J'ai fait attention, et je connois bien la ligne de division entre les deux provinces du Baut ct Bas Canada, d'apres la proclamation de 1791 du gouverneuret conseil. L^endroit appelle les Dalles dans la rir yiere Winnipic, est beaucoup a Touest d'une ligne tiree vrai nord du lac Temiscamingue au territoire de la compagnie de la Baie d^Hudson.(^) (•) Mr, J. P.— Upon his cross>examination he deposed, ''when we beard the two guns fired, we were encamped, and the weather was cairn, one could hear at a great distance." He likewise deposed upon bis Cross-examination, ** whilst Mainville related the manner in which Keveny-had been killed, De Rein- bvd was busy, but that he had made use of two expressions, Mbat he took him . fur a monster,* and that, * it was an act of charity he had done to him." JIfr. 5.-— Is it within your knowledge that La Pointe deposed that De Reinhard spoke French like a Meuron? Afr. J. P.r—l have not got on my notes that he spoke French like a Meuron. I have taken it, that ** De Reinhard spoke French pretty well. The Meurons do not speak Frendi like the Franks." Mr. S. — Faye when speaking of the arrival of the small ca- noe, in the evening, after the death of Keveny, did he say, that " he did not know whether M'Lellan went to look ?" C^) I am a sworn surveyor. I have paid attention ta the sub- ject, and I am well acq«iainted with the line of division between tiie two provinces of Upper and Lorrcr Canada, according to. thje proclamation of 1791, of the government and council. The 380 ••1^ ■■\'. •<■'; ' V . . ! ^M.;l < 4- .i-i ■1 C.-»tr5 Chief JusHeeSeweH, — Now let us knoWvas froi^ ihe battery of learning I see prepared, 1 suppose we are to havt, as 9X present ad- vised, Mr. Sax's information, or any mforroation, as to the limits' of ancient Canada. The fact oi >vhere the Dalles are situated with respect tp any place caHed the Dalies cm the Ri?er Wjnnipic, is much to (he inrest-ward of a line drawn due north fitwi Lal^ 7emisc9min| to the territor/ ef the Hudson's Bay Conpany^ m} 3B1 ose you mce pose ^cus- nit to luccd Q the iX has ime of ontenj if com- Uppej ,t is evi' clearly that, as that we at which 8 to any issiist me, law> ©y asurei as position. Jifcr y?hich ^d tosub- jctness, it >urse may •esent ad- forioation| jhe fact ol 5Ct tQ a^y line you are at full liberty to obtain from Mr. Sav, thoiitfh, 1 think, their locality is pretty fully estab- lishea. Examination resumed by Mr. Vfdlihre de 8l R6aL Jkfr. /Saff.—-Le8 Dalles se trouveront au norc! dela ligne^taMte entre les Etats Unis et le Pro-^ Tinces du Canada.(') Mr. Stuart. — Call Jasper Brewer, Esquire. Ckief Justice SeweU.'^-^iWjou not take up the ai^tnent upon the point Mr. Valliefe^ has statdd' he intends to submit ? as, if he induces us to -co- incide with him in opinion, > there is an end to thisi trial. Mr. Sfuart.^^We have thought, as we have but one more testimony to Iny belore the Court, xhat we had perhaps better close the evidence, and as it will not occupy manjT minutes, that it might be advisable to defer theargument till the defence, as far as relates to witnesses, is terminated. ' Chief Justice SeweH.-A have no objection, and as your case is so nearly finished, it m^y perhaps be advisable to complete your evidence. J ASP&R BREWER, Esquire, Sworrir ; l/l^lixafnincd fy Mr. Vanfels^n. Mr i Brewer. ^^ie connois le prisonnier a la barre, fet je Vu cohnu dfepuis sept ans. J'etois un officier (un lifeutenant) dans le regiment des'RIeurons, fet DeReinhardv^toit dedans quatre ans. II etoit sergent, et dernierement couleur sergent. II 6toIt (') The Dalles will be found to the norlhvrard of the Vim established between the United States and the Prormces oi Canada. .r-"!! ■i'^-^M ■■',i»:^l 382 h'-'fJ: ■'•■] *$]'■ 'f'i "K'j *i'€ I . 'l,:', [ eoiilcur sergent une grande partic du terns. 11 avoit un caractere excellent au regiment^ ex- tremement honnete et doiix. II savoit s^exprimer ' dans la langue Fran9oi8e, mais non pas bien, bien indifferement. J^ai eu occasion de voir phisieurs do ses rapports ; lis ^toient des rapports de peu de consequence, comme des rapports de garde, nean- moins ils contenoient piusieurs fautes cie langoe. Mr, Vanfekon. — Regardez ce papier. (La con- fession.) Chief Justice SewelL-^P ourquoi ?(•) Wliat is Mr. Brewer to prove about this declaration? I sup- pose he never saw it till you put it into his hanas. Mr, Vanfelson,^^]e dirai a la Cour. Je me pro- pose de demander du teinoin, si avec la connois- €ance qu'il a du prisonnier et sst connoissance de Ja langue Franyoise, il consiJere que c'est possible =qu'il pourroit avoit 6crit cette declaration.(*") jiltomey-GeneraL — I submit that my learned iriends, can not be permitted to put such a ques- tion. Mr, Stuart, — The question is then, whether the evidence propostc! to be go;ie into by my learned (9) Mr. B.^A know the prisoner at the bar, and I have known him for seven years. I was an officer, a lieutenant, in the regiment of the Meurons, and De Reinbard was in it fuur years. He was a Serjeant, and latterly colour-serjeant. He was colour*serjeant far a considerable part of the time. He bore an excellent cbartictcr in the regiment, extremety civil and •quiet. He could express himself in French, but not well, very indifferently. I had occasion to^ see several of bis reports; tliey were reports of not much consequence, sueh as guard-reports, iievertheless they contained several mistakes in the language. Mr. V, F. — Look at this paper, {the confeision.) CX 5.— Why? . ('").! will inform the Court, I propose to ask the witness, 'whether, With the knowledge he.has of the prisoner, and of his Acq'jaintance with the French language*, he conmders it possible for him to have written (his declaration. :^c.' u W ei- rimer , bien l8\eUT8 neude , nean- La con- at \s Mr. 1 sup- is bawls. ( me pro- , connoifi" isance de X poasvbU a learned h a q»®^* i fbetbey Ae lY learned , and I lw^.« , lieutenanU "» Lasinitfouc Iserjeant. We Ihe lime. »« Lety civil and notweW,vejy hie Un&uaS*^- friencly VanfeUon, is, or > not adoiisslble. I think it is, and should lik< to knt « on what grounds it is to bo resisted. As to v lut eiT^^t it maj produce, that is not the questiou. At) her gentleman may think differently to what I (1< as to tliat point. I should submit that, upon such Toof as we have adduced, of the circumstances under wliicj) this pretended confession was made, that at the time of making it he was confined in a fort commanded by Lord' Selkirk, to whom it is al- leged he made it ; when w^ recollect that this confession is as much an accusation of those whom his Lordship considered his enemies as a declara- tion of guilt, I think it comes before us in so ques- tionable a shape, that we ought to be permitted to shew any thing- calculated to weaken its claim to credit. But, confining myself ta the naked ques- tion of law, I contend the evidence is perfectly ad- missible. It is to shew that the prisoner was in- capable, (from his ignorance of the language ia which the paper is written,) of drawing np this pretended confession. I repeat that the question IS not, what weight this may have with the jury, but. whether we have, or have not, the right to put this strong circumstance in evidence be for© them. I confess I shall wait with some anxiety to^ hear what objections the Crown lawyers cani make, and as I shall have the honour of replying to them, I abstain from urging any thing in addjtiou to what 1 have had the honour to submit. AUorneif'Geherql. — The legal objection I make to the introduction of this testimonv. is, that it is not the best evidence which the nature of tho cast affords. It is in proof, upon your honours uotps* that the confession is in the prisoner's own h.>nd- writing. Admit then, for a moment, that it was drawn up by Another, still be must have knowi^ the contents, and if ho copied them, apd signc|^' f- ■1: v ifll • ;;-■ ■.'■'■It / «l''l M • ■I-, . < ■#;; ^^.^! ■'■■ >:,|,: ; ':"■$ I' ■'■■ '!^'^> if I" ■ 384 them, he made them his own. That the confei- sion he delivered to Lord Selkirk is in his own hand-writing, and tliat, acknowledging the con- tents were true, he signed it, and delivered it to Lord Selkirk, we have incontestibly proved by a witness, in whose presence the occurrence took place. It is a misapprehension on the part of mj learned friends who conduct the defence, when they suppose that any tiling done by Lord Selkirk or captam Matthey, relative to its being drawn up, can invalidate the confession. If there is any thing, captain Matthey or Lord Selkirk should be produced. If it is to be staggered at all, it jnust be by legal testimony, aimed directlv at the facts we have proved, and not by asking the opin* ion of this, or any other gentleman, as to the sup- posed capability of the prisoner to do that which It is in evidence he did. Solicitor General. — The question proposed by my learned friend, I contend, is perfectly irrelevant. I agree with my other learned iriend, otuart, that^ in deciding upon its admissibility, what weight it may have upon the jury, ought not to form any part of the consideration, but that its claim to be made evidence should be estimated only by legal rules. But what would be the weight if every thing they offer to prove were admitted ? What would it prove, but that some time ago the prison- er could not write eo Well as he does at present, or did when he drew up this confession ? What #fiect is the circumstance, that in his military re- turns there were some few mistakes, to have on this trial ? It is, however, of no consequence to !p^ ioto an examination of these eircumstances, as It is a matter of complete indifference who guided the pen in the making or preparing the confession which wc have given in evidence, inasmuch as we ^ve satisiactorily proved that he knew the ecu- 'ia$Q|i 385 it to iby t D took ■of my , vrhen Selkirk drawn e is any should Lt all, it Iv at tbe the opin- the sup- lat whick posed by irrelevant, uart, that, freight It form any iaim to be y by legal ^It it every I? What the prison- it present, f What ^ilitairy re- [to have on equence to .stances, as ^ho g«»d®* confession ^uch as w« .y9 the coi*- Htoti, and before hd signed it^ acltii6Wl«dge {\ \'f : "- m *■ -IMB ^'■^■:i:: i V ; 386 .i^ i.J ■^ ^J Mr- I ■h M *. 1 gu^ge ? luid what is the di£ret*ence between sued a case and that we are discussing ? We mean to prove thaV the individual at the bar i$ not able to produce^ such a paper, that he is not sufiicientlj acquainted with the language in which the papei^ is written, to have been capable of drawing it up, and to prove this, whom do we produce ? why, an officer, jinder whom he served tor four years, and who h^f known hitii seven, and this officer tells us thftt such was his limited acquaintance with the language in which this elaborate paper is written, th^t he could not even make out his report, as 'siBrjeant of the day, without its being full df errors. Jt is a jE^jft I consider the jury have a right to be acqu|nited with, and I submit it with great confi- dence that the Court will maintain the same opi» nion. Chief Justice SewelL — The question we are cal- led upon to decide ought not to be complained of by the Cpurt. The counsel for the prisoner are called on by their sense of duty to ofier it, and the Court have no disposition to slight, or disapprove, their exertions. Counsel on the one side, and on the other, have necessarily a certain -bias. We are to hold the balance, and to decide, whether their several propositions shati, or shall not, be admitted, and in arriving at this decision, we can have but one. principle of action, however unplea- sant the enforcing it may be, and frequently is. The principle is : If the proposition is not according to lavf, we can not aamit it, but i|* it is, we must /Kow, what is the question proposed to be put t« itlie witness ? " Is it your opinion that the prison- ^'er' e^r composed this paper .^" If he answers, 'i)pt, is it not mere matter of opinion ? and are we not bound to reject opinion? It is clear, that if tlie contrary w^re to be allowed, we should be left in th^ wide field of presumption, all would be mg ti n to le to ently papei? it up, by, an •s, and teWs U9 Uh the ;vntten, port, as [ errors. ;ht to be lat confi- atme opi- e are cal- ilained of Loner ave it, and the isappro^^e, e, and on bias. VVe », 'whether U not, be 3n, we can .er unplea- jccording to yjQ must 'o be put t» t the prison- be ansv^ers, andarev^e le should be jail >ivouW o« 387 hazard as to whether it was wrote by somebody else : whether forced upon him, or voluntanly ad- opted hy him* or, whether it was first writtea by De Keinhard, and the language being cor- rected by another, then copied by him; would not every thing be mere conjecture and uncer- tainty ? 1$ it not an undoubted fact, upon evi- dence, that it was his own production? Who is to say, that, if it was not the woiik of his own head and hands, that he did opt, in the most so- lemn manner, adop^ it and make it his own ?. Prima facie, it was his own, 2ftid, till it is proved by positive evidence, that it was illegally put upon him, whether it was first written by some one else and then copied by him, or not, still it must, re^ main his own act An act evidently, done in fur- therance of the declaration made to the witnesges^ who have deposed to that point, and signed by himself, and then delivered by himself to the ma- gistrate as his declaration of what he knew of, and what share he had taken in, the melancholy trans^ action, and all this is done in the presence of a number of witnesses, one of whom, at least, could not be supposed to b^ unfriendly, and to him he particularly acknowledged the truth of the papeir. AAer signing it, he deliberately put his ultimatuq^ to the businessT by delivering it to the magistrate as his own confession, stating that he had no de- sire to add to, take away, or alter, any part of it' What difference, under these circumstances, is it to make if even it had originally been written by another? he copied it, he must, therefore, have necessarily known the contents, and if any mis- statement existed, he could have corrected it It is manifest that he was not taken by any surprise, hi must have been well aware of wnat he did. With his ipotiyes for so doing, we can have no- Ithiog to do, but you may, if you can, prove ^in' B- ■-• '■ri:, m ■'- -^ -i^-* '4» «i5 ;»■?*■••■ ii .3;' ^Ci ;i 1 -**, :♦' .. 388 ■' 1' ■' 'fi a'ti. /• lit Si mm mmm ImS 2 !a ■ ' V-'- 5i'J ; j: 1^ uhdue naUoeoce to baye bi^eii a^ed towards him^ biit to go farther than tbib, or to admit such a ^^ibi^. an yoa dow pTO);>o^, would be to open the door of a labjrioth, to Which there wbuld be n6 clue by which to escape. If you want to re- ]n(i?e this eoofessioo^ attack it broadly, . openly, and legaBy. Yoa should begih by proving, if you c^ta, ibat if #as forced upon him in tola, or that it r^^ked from^HD undue mfluence exercised over hii^ Diind, but the one or the other mnst be sub- sfatitiafted by positive Evidence, and before that is dbd^f yoa ought not to expect us to tell the jury th^ they are bound to put this confession alto- gi^tber Out of tfaeir consideration, for we can not di^ it. Relative to Mr. Dease^ I am^ sorry to say, I consider your argument to make asainst him. Yon ^y he il^ a witness by compulsion ; a wit- ness to what? to De Reinhardbemg /orcet/ (ac- cording to the inference you wish us to draw) to Sign this paper against his will ? Where is Mr; Dease? Whose duty was it to bring him here? Certairtly the prisoner's. But what if Efe&se w^s an unwilKng^ or compubatbry, witness ; what if Lord Selkirt said, ^s man is about making a confeisaon^ and you, a? one belonging to the same etnploy, sheM see htm make it ; you sHdll be pre- senit, ^d see all that passes, shall yourself read his co^sdon, shaU witness that every thing a done fairfy on the one side, and voluntarily on the othek-side? If it is said that Mr. Dease was not '^sitDt for tin thi^ whole nlachinery had been pre- p&red, still the fact returns that with the prisoner IS the knowledge of who was present The saitte thing occurs relative to tfae writing. If he did not write it himself, must it not evidently be withia hrs knowledge who did write it ? and; yet, with- out proving that any efibrt has been made to bring these persons here, you ask to go into evidence ■ S' 'it 'iri 399 ich a open lid be to re- ►pienly, , If you that it A over be sub- 5 that is the jury iion alto- i can not y to say, Linst him. ,n ; a wit- med (ac- draw) to ere is Mn lim here? p6iase w^s 5 ; what ii making a o the same liaK be pre- urself read Iry thing *B Wily on the Ise vi^as not been pw le prisoner The saifle if he did not |y ^"^ ^^^^ V yet, ^»«^- Ldc tobnng ^to evidence to prove that the prisoner did n0t write It I ap 4orry9 at all times, to exclude any thidg in the ahape of testimony brought forward by a prispn^r, xirbis legal advisers, but, when ^sontpelfed by du)^ to do 90i I can not helpi it. I am 4epidiBdJy .^f opinioo this question can npt be ddmitted^ Mf' Justice BQum^'^l am ckariy 30 ^oxxlt i&no fact that you are s^king to let in; it is inierely. a mat- ter of opinion which ibe gentlemen at 1^ bar knoiW, equally with the Court, can npt be admitted as e- tidence. The fact that when D© Eeinliard wasja Serjeant in the Meuron regiment bis reports in the French language were faulty, you prOv^? and the jury will make what inference they please from that fact, and perhaps they will make the same as the gentlemen concerned for the prisoner at the bar are desirous of extracting from Mr. Brewer id the shape of evidence. There are twelve jg^ntle- men sworn to decide upon the facts, and they are capable of judging, without having the opinion of Mr. Brewer, upon the prob^gtbiiity of the prisoner having written the paper in question, and it 'is their peculiar province to do so. .Opinion can J^ot be received as evidence, and it is well for a prisoner that it can not, inasmuch as there mi^t be wrong opinioas ^en in evidence, and those unl&voura^ble to him. The question you propose, being only as to the opinion of Mr. Brewer, must not be asked, because the answer can not be received in evi- dence. Tihe fact whether he ever saw any pf the pnson^r's epmpositiofj^ so correct,.^s this paper ypjU nay obtam from bin. Examination resumd %;^* ,][i!^ff^9^f 111 Mr, £retr^.~>Je n'ai jamais vu aucnne ecritlirc iela part du prisonhier, a^issi qorkect^ qlie cette 6^' claration datee le vingt-huitieme 4'Oetpbre I8IG; -Hv in ■'■-■' M -i i;' ml ■mi 390 son ecnture ^toit touioiirs pleine de fautes. Je connois le capitaine DX)rsonnens, et je Pai vq sou- vent ec^re. La signature de ce papier, a moi inaiolienant produit, est l^ecriture propre du capi- taioe D'Orsonnens, et les qualites qui suivent le Bom, la rcftseoiblent, et je n'ai aucun doute que let inots ^^ Capitaine commandant le fort du Lac la Pluie,'' sont de Pecriture propre de lui le capitaine D'Orsonnens.(>') The CapitiJaiion between captain D*Orsonnens and Mr. Deaseput in and read. (jSppendix F.^ Cross-examination (conducted by the Morney-Generd Mr. Br^er.—^r^i quit^e le r^gimept savant De Reinhardy e^ 181 4, Vers la fin de T^te. Quand j'ai parl^ de sa connoissance 4e ^^ l^i?gu^ Fran- ^oise, j^ai purle de sa connoissanc^ alQrSi commp je ne 1 ai pas yu depuis.(**) Mr. WILLUM S. SIMPSON, Sworn, -s . I 11 T I', '■4 '; 1 - - '-^J Si- * - And examined by Mr. VaUihe de St. Rial Mr agent . Simpson.^^\ am at present employed as an I was present dunng the trial of Charlei i (>^) I never sa^ any writing of tlie prisoner*8 so conectat this decldraUdn dated &e tvrenty-eighUi of October, 1916; bis | writing was always full of errors. I krfow captain P'Orsonneos,, and I nave often seen' him Write. The signature tq this paper,! now produced tO me,' U the |jrop^r' band* writing of captaiil D*OisGBaenS) and the qualifications which follow the name, m semble it, and I have nO dOubt that the words ^ captain conj mandin^ the fort of Lake la Fluie," are in the proper band-iniH in|( of him,' captain trOrsonnehs.' ' •' (**) I left t|ie rt^mept before De ]Fl^inbard, in 1814, towar ^ emi of the summer. When I spoke of his knowle^{e of tl FjKnch language, 1 spoke of bis knowledge at the time, asl haVii iot seen him &ioc«. ^' ' and (" 56. Je vq sou- a moi 391 De Relnhard and Archibald M'Lellan in the €burt of King^s Bench in the term of March last. I was present during the whole trial, being employed hy the Earl of Selkirk to take the proceedings steno- graphicall^, which I did. I remember that cap- tain Protais D^Ordonnens was examined as a wit- ness on the part of the Crown in that case. Solicitor GentraL — I do not know what my learned friends intend to prove by this gentleman, nor, indeed, do [ conceive they ought to be per- mitted to examine him, as, certainly, his notes of the trial are not the best evidence. If my learn- ed friends wish to prove contradictions in -the evidence given on the two trials, there are your honours notes, or the notes of Mr. Justice rer- rauit, taken under oath, which they can refer to. Mr, Justice Bowen, — It is certainly a most ex- traordinary, not to say indecorous, proceeding to examine a short-hand writer, who is not upon oath, to diaprove the notes of two judges who thke notes under their oath of office. Mr, Valli^r&tfe St, Rial, — We were merely go- ing to ask Mr. Simpson, whether or not captain D^Orsonnens did, according to his notes, in de- scribing the sort of French De Reinhard spoke, say, ^'11 parle Fran9ois assez bicn, il parle comme ** un Meuron."(*') His honour Mr. Justice Per- rault, probably thinking it of no consequence, did not take it, though captain D^Orsonnens certainly did make use of that particular expression, in de- scribing: De Reinhard's mode of speakin&r French. ¥•1' /» ft t» I It 18, however, of no consequence. I beheVe the case on the part of the prisoner is now closed. Mr, Siuart,-^F or form's sake, we wish to put in and have read, the Prince Regent's proclamation. Attomey^Oeneral. — We have ho objection. ■ ;^^ (*')He speaks French pretty well, bespeaks it like a Meuron ;^ ;ai •:r:,:^ J'K -■ •■ /41J ■ r JF J ■ ■ i 1 - ^'1 : Mi ■mm PrM ■i fi ' .1 ( •<«-■ 39a A ^^VHs ^^ '^ offeredy fmi being printed ect Yorh^ was objected p, as not being an ^teiai pn>- duvtion, A coptf printed ai Quebec by his Majesty* s Imoyrinter was th^efote sent for. . Mr» Stuart. — ^We have closed our testimonj, Yf\th the exception of the prQ9lapiatioi], which we t^ill put in presently. Mtomey-GeneraL — We shall now proceed to call witnesses to rebut the allegations relative to the excess of force or violence, which ha^ been BO frequently adverted to in the defence- , Mr. Stuart.-^l certainly object to any farther evidence being gone into. The Crown closed its case, and we entered ^pon our defence. Nothing remains now but the argi^ meat which wf^ are ready to enter upon. Attorney-GeneraL-^l heg my |eam«d frieed^s pardon, but the inatter is pot quite so pear set- tled. The necessity for our exbibitiqg sulditional testimony arises from the nature of the defence the^ have set up. My learned frie|}ds h^ve maje their principal reliance, tha state of the country where we allege the u^urder to have bei&n com- mitted. They have represented, that a state of warfare, (catljsd bj them a private war) existed, and that the confessions we have provedt aU re- sulted from terror, inspired by the presence of t military force. Now, we desire to i-ebut this tes? timony, by proving that ;t was not a n^ilitary force, but merely a numbf^r of persons su|^oiling a con- stable, and enabling him to exeo^te ^ j^al war- rai^, which had been resisted. This i^ completely new matter. It was not alluded to on the part of the prosecution, so as to render it necessary for the prisonor to disprove our statemept. Mj learn- ed friends have brought it forward ^^ tfa^ir mode of accounting for a series of viva voce declarations of guiJbt on tbe part of thp pri^onej^ termip^^iog '^ pro- lear »el- ^ditional defence country .^ com- slate of evsted) r* ^ '^' knee of * It tbis tes-f iog a con- ical war- omp^eteiy 1 the part tessaryfor My l««^" apir mode jclarations 393 a y^ritteD confession made at Fort William* | sboul<] certainly think I might call the o^icer, who had to serve this warrant, to shew that be was resisted in the execution of the process of a civil magistrate, and that the force that was used was Qo more than what was indispensiblj necessarj to enfpW obedience to tho ^luthority of a ciyil ma^ gistrate. Solicitor General-^l should contend, may it n^ease the Court, that we have a right to impeactt the de.fepdant'8 witnesses, as well as the defendant tbo^eof the Crown, i/not, we do not stand upoQ equal ground. If unfounded statements .?Lre made l^y witnesses on the defence, are we to he debar- red from rebutting them, because we have said our case was closed ? I should think not. If our witnesses are impeached, shMI we not be permit- ted to rebut such impeachment ? I Ao not mean to say, that the course we propose |to pursue, is a usval proceeding, because it is net often that it js rendered necessary, but it is certainly a very jus- tifiable one. I do not know that I can refer to any ^ctoal authority upon the subject, but the reason- ableness of the proposition renders it unnecessary thfit I should A defence usually cpnsijsts of a ne- gation of that which has l^een proved on the pj^rt of tbe prosecution? but ihe 4,eience set up iti the present q^se, is not a sjimp^ denial ^ of the >fact» brqijjljt ibi^^rd by us, ^nd this denii^l ^impprte4 by evidence, but they have goneintp a Jfong in<- vestigatiop of a immher of witness^? to ^hevv tba| a.^tat^epf w^rvfare existed in the Indian :territory^ ai|(^ W^t it w^s under the influence of terror that tbe aev^erai eenie^sions were made, therefore they ouffht to be ^ot aside. We wish to shew tl^at no vm thing exijited, and that ^11 the violence, (if ^y was resorted to) w»s rendered necessary by 4e rt^gistance pf le^l me^iires. We coula pot i: W2 h^fX t»'f \n ■•k". if- '•: ■■.i-'aiV'.- "'. wtw 39i taticipate the defence, but, as in it ihej endea- Toured to impeach our witnesses, we have a right to examine witnesses and produce evidence to re- but it. Where authorities are silent on criminal subjects, the rule is to have reference to civil cases, and here we shall certainly find precedents to justify the course we are desirous of following. When the defence consists of an impeachment of a plaintiff's witnesses, the Court at Westminister Hall dailj present instances of the rebutting such evidence by the examination of additional witnes* ses, and if it is allowed in civil cases, whj should it not in criminal } We wish to prove that a war- rant was issued to arrest certain persons, and that in consequence of its being resisted, it was neces- sarj to emploj a number of persons to support the constable, and thus rebut the charge of a militarj force having been employed. Mt\ Justice Bowen. — In M'Nally, 380, this point is considered. He says, if prisoner's counsel ex- amine witnesses to general character, or to parti- cular facts, then the witness for the Crown, thus impeached, is entitled to rebut these facts, and caU witnesses to his general character. SoUcitor-GeneraL^^The same doctrine is laid down also by Mr. Baron Gilbert, and in Phillips. Jiff. StuarL'-An reply to my learned friends, I beg to remark, that, primd facie, a very strong presumption against them, is, that they are com- pletely out of the regular course. We daily see criminal proceedings, but we never before heard such a thmg asked by the Crown as to be allowed, after the defence is gone through, to produce ad- ditional evidence against a prisoner. The officers for the Crown produce their case, and are asked, have you done r They answer, yes, and then the prisoner proceeds on his defence, and introduces nis witnesses, for what purpose, but to rebat that 396 I right to re- riminal o civil cedents lowing, nent of ninister Qg such vitnes* V should A a war- and that le is laid I Phillip*' friends, I ery strong V are com- B daily see fore heard )e allowed, )roduce ad- "'he officers a are asked, [nd then the introduces rehntthat • ^hich has been exhibited in evidence by the Crownf AAer his case is closed, are the Crown officers to rise again, and ask to produce more evidence, be- cause they feel they are too weak, and that con- viction will not follow? Certainly not. What was the case which the Crown had to make out ? That the prisoner at the bar had committed the crime of wnich they accuse him in the indictment. To do this, they examined a number of witnesses to support, by parole testimony, a written confes- sion, and when they thought they had fully estab- lished his guilt, and had ensured a conviction, they informed the Court they had closed their case. We were, accordingly, put on our defence. In the prosecution of it, have we produced anj newfhcts.^ any facts unconnected with the case they made out r clearly not ; but we have opposed to their evidence, testimony of a contradictory na- ture, and does not that occur upon every trial that takes place ? How did the Crown prove its case ? By getting admitted a number of confessions. How do we prove our's.^ We shew circumstances» which, we contend, will lead the jury to give no credit to them. Are the Crown officers now to turn round upon us, and say, we did not knowy er to use Mr. Solicitor's own words, '* We could not anticipate youi* defence,^' we must strengthen OOF case or you will escape ? What was our ob- ject in meeting the case of the Crown officers ? • Our sole object was to prove that these confes- sions were not entitled to credit, but we did not do it bv attacking the credibility of their witnes- ses. We produced a number of facts, which we thought well calculated to remove any unfavour- able impression they might have made on the minds of the jury. For example, we proved a capitulation between captain D'Orsonnens and |)ease> and that, in signing it, captain D'Orsoh- t m i I:- i -01 Jijf i; j W'i I •J :f :? 9/} .! . II H ;'^-;t ^ :^i 396 neni styled himself, *^ captoin commcindiqg thift /ort of Lac la Pluier' for what purpose was this done ? why, that the jury mi^ht contrast this fact wit|i the qeclaration of captain D'Orsonnens that he was iiothiog more thaq *> un individu simpk.^^ As a substantial fact, we offered evidence that port Williano was taken bj a military force, and that De Reinhard knew of it. Is not this the very substratum, the very res gesta of our defence ? and IS it not in direct contradiction to that exhibited by the Crown ? But is this impeaching their wit- nesses SO as to entitle them to come to your hon- oursf, and ask permission to examine aditional wit- pesses? Certainly not. The distinction between this case and that, is a marked, is a broad, di- stinction. Our impeachment of the witnesses on the part of t;he Crown has been by shewing facts, and nothing now remains but for the jury to judge on which ^ide credibility preponderates* It is really painful to be obligpa, at this late day, to an?ue first principl"«• 'e** Wat iMhe critefio* brlfi?"*"* *""*'""«•*• k?»'edi» Who is to havr,l i" ?**"' « «<> W Crown finished the r ct ^i '"^'bfowf Th^ cause we have shaken Tkr^ „ '*^*'' """J be- we have shewn, incon.ro^Zht ,'"'"'>' " ^•''^'"«* pretended confessions v.'e.J'ff'!"' "»?• «hesff the peculiar state of»h» '^''*'' ^'"o'" "» by "»' 'heircsse to hare shewn '.K •"'^^'■*' P*"-'. o( 'he guiJt of the prisoner bVt^ '"*""''«' '» P'-^v* l^i at the time if rakina-ThJ T" ^""^'^^^ior.s, "«« was notevenTshafowTf' ^' '^^'^'"'^ «''^* f 9olhemise. This thov L "T*="'" 'hat he that we shew he was m7 j^"* '"** ^°' f""*' seeing ress, ,h«j say We h,«V l""^ "f Hfegaldu. •Hheir witneLt at *h*P?""*"^ «»« chslbiht/ «» go intb evidea^ to sltS?K ""^^ '"^ ^-^''^e* ;;» '"•gumentf that mj Wd r ^P'*,"*'' '"'^ »°f The sophism appear" f„^^- '^'*"j'* resort t*- '""-erted yhJ^Z^^J^'^:: ^"'^ ^ave co«. .•« have shaken ouSin^''^ ^°^*' '^'*»«'f- '•8? right to sopport^u''' *''^'*f°'« ^'e havs « wphism^rests in Eo """" witnesses;" The •« a rerb4 attack [^""^^^ "'' ''"'^"'S«- ^ t « «tack that we have made upon the r 1 f ■I r f'^?!? 'ii- it 99tt 1} ■p { % U. X ■..:» '• W^ witnasses. We haye^ not controverted captain D'Orsonnent generally. We have not said that he was an attainted witness. We have not en- deavoured to prove, generally, that he was a bad chtracter. We have not enquired whether his erroneous statements resulted from party spirit. We have not pretended to say that captain D*Or- ionnens acted from malicious motives, or that he was unentitled to general credit. All we say, is, that we have proved, and triumphantly proved it too, that particular facts sworn to by captain D^Orsonnens turn out to be erroneous. With re- ference to the authority of M^Nally, referred to by your honour, 1 beg permission to remark, that it refers only to cases \ery dissimilar to the situa- tion in which this stands. Relative to witnesses to general character, we have examined none. I repeat it, we do not wish to impeach captain D'Or- sonnens* general character. As to particular facts, we have produced no insulated fact not connected with the case, and such, I conceive, any fact must be, to be a particular fact within the meaning of the authority cited, for if a fact is connected with the case, it ceases to be a particular fact, and such is every one that we have exhibited in evidence. We are, therefore, without the rule altogether. To test the argument made use of on the other side, I would ask, where is the line to be drawa ? If it is not where I put it, where shall it be put.^ If the Court decide, they may proceed to prove * additional circumstances to rebut particular factsy I should like to know how many particular facts are to be rebutted ? Is it five, ten, the half of what hav« been produced, or all? What is a whole, but a number of particular facts made up together. 'Where then is the Hne to be drawn .^ where ere we, to stop ? Admit this doctrine, and we launck ourselves on the wide sea, oi^ ^difficulty, lain that en- bad r bw pint. YOv- at be ved it aptain lib le- led to It, tbat B situa- itnesse» lonc. I a D;Or. iar tacts, )nnected 'act must aning of ted with and such evidence, together. \\ie otbev drawn? be put? to pro^«' liar factsy liar facta ,e half of bat is a made up |e drawn? itrine, and difficuUyi 399 joubt, uncertainty, and confusion. Lot us sup- ppse, for a moment, that all the principles of law could be overset, and the evidence admitted which the Crown asks to have let in ; we must be allowed to reply to it, and where is it to end ? The very object of offering evidence on a defence is to con- trovert that which has been offered on the part of the Crown, and can not, therefore, furnish a rea* 800 for admitting additional testimony on the part of the Crown. In the present case again, there are many other points I might advert to. The very nature of the evidence proposed is objectionable. Who is to prove it ? why* the very persons of whom we complain ; a pari of this very force who, from their peculiar situation, we could not cross- ciamine, because they would accuse, and neces- sarily expose themselves to punishment. 1 could not ask one of those witnesses, had you a musket? were you l^rmed, and did you act like a party of moss-troopers? because, if they answered truly, they would be liable to be indicted, and as the Court has done before, it would interpose its pro- tecting arm were such questions attempted to be put, and tell the witness he need* not answer them. Again, the very men who are to be witnesses, are, and have been during the defence, sitting on these benches. I do not mean to cast any imputation on any one of them, but on this aolemn occasion, it was thought necessary that every witness should leave the Court till his evidence was completed, and for what reason, except that he might not be exposed to any improper bias from hearmg the de- positions of other witnesses ? If there were no other circumstance, I should think this alone were sufficient to exclude the proposal of the Attorney- General. He said he nad closed his case, and tanking he had finished, the prisoner entered upon kis defenct. Corading iu the declaration of the .1,^ •^. \^-:-':m ^<^-. 3 ft -! ■ 400 Crown omccrg, he has produced his evidence, and ihe ¥^hoIe has been exhibited before the very per;* 8ons who are now to be called upon to prove the additional part of the case. It is a proceeding as bovel, as extraordinary, and I feel confident the Court will agree with iqe that it is as inadmissible as it is unprecedented. Momey-Geheral, — Upon consideration, we are not disposed tb press our proposition, and particu- iarlj in cOriseduence of the last observation which fell Crom the learned gentleman. The witnesses whom we proposed to examine, having been io Court during tne defence, leads us to abstain from |)ressing that, which, nevertheless, we consider bursiBlves legally entitled to, if we persisted in de- manding it. Chief Justice SewelL — The very object of a trial hy jury is, between affirmation on the part of the Cfrown, and negation on that of the accused, todisco- ' ver the truth. The Crown, in the first instance, (take a case of hoinicide, for example,) avers the guilty the defendant brings affirmative testimony^ and al- teviates the offence from homicide to manslaugh- ter, which has a tendency to abridge the punish' tnent. The CroWn says, I affirm^ and am ready t» torove the defendant stabbed hind. A. comes iDt» Court, on his defence, and says, ! am not guilty; Bk met me in the street, and drew his sword on me, and it was in self defence I wounded him. Here lire tWo affirmations^ one on the part of the CrowD, l^t it was homfcide, and another on the part of the defendant, alleviating the killing to manslaugh- ter. Shall not the Crown be permitted to prov6 this alleviation false ? certainly it must. A word with respect ta testiuony. All persons brought before tne Court are presumed to be honest, it m therefore not necessary that the Crown shduldj prove its witnesses to be entitled to credit, becausel ^'i^i-!;; ' ■ l^y A 4 401 ShaM not th. Crown be perS^ *" **»*i>^oay. lowed. These .re Drincint u^J*. "»•* «» «* •I*^. held and a^te^S .ITj '^.'* *" ^*"« ^ hand, .he Crown t^n^,^„u^ .""' ">« »*er forward at once, or how H L**^*^ '" '" *=*»• what be has to answer? If 3^1 . F^"^ know Wed, a prisoner never could k„rT^ "«" ^J- eemrj to his defence. We^fc^'l^'r"' °*^ ,l>«ek anj par. of the ca», 7l.l ".lf'^'»'«ed to hold i« whether the whofe we^ LTk^f 5?^*^ ^"o*^ «»t would p«K,eed ,0 blZ hfJ^''' *« '''»«"'<*- 1»r, and the Crown \.^- "" "*** "Pon «he o. befo« it beld bacrwouW r"« J" '^'«'' «»•«« which 7. and .hu, ,he ckrl^u^t' ' ''P> »«**^«2 »!»• majr be called a coS JT^^''''*'''''''' '«» «»i«use of, becttirse .L '"P'*'«.*^«i&, a word I CkrfJushe* StwdL--WhL *•;<«• purpose pursuing in iKo"*' S^nt'emeo, •k^to suL. t"; Sr&t *'«''"«»'« y»" "A ,*^m..Sn";Unrrhe*"a'"'^" '""-' S<»-«l "* Wowed bv iCr? «»• «1g:ument, and! shall kr. <« wilirterfu^Lrit'' fr^d, wh^i MwiiXM,, of prXin7 ?I .1 * ""f'ori.ies w, *^?«^s S.«I^^„'^> object to any *'?" MU t ' Im 4:: frf'f If -i (it fM'Mt >• I* ■ ■■*• V'-' iv; ?:: ,J#^-r .'^^ if-^- "I' ihi iiAi'' *i'^ '-^v! ill 40S it 19 inadmissible. He might as well address the jury, which i am sure he would not attempt but really there is Terj little difference between mak- ing observations on the facts of the case, as proposed hf my learned friend and addressing tbe jury. '>^''Jlfr. SiliarL-^l shall have the honour of contend- ing that from what we have shewn the confession is not now admissible evidence to go to the jury. Chief Justice SewelL — That is decided, we there. fore can not hear you upon that point. Mr, Shiart. — ^I should think, your honours, I might be permitted to argue that we have produced evidence on which, (as we contend,) it is inadinis- sible evidence to go to the jury. JIfr. Justice Bowen. — So you may at another stage of the proceedings, should they unfortunate- ly reach that length. In arrest of judgment you would have a i^ht to argue that point. Chief Justice SewelL — It is not because we take it to be evidence to go to the jury that it is to dennVe them of their province of judging what credit i^ '^ to it No Court ever did that, except Courts v .e arbitrary power usurped the seat of justice. Tbei Court told you, during the proceeding, the view they took of their power ; they told you, had youj made out a case to justify it, they would have saidl this can not go to the jury, but after having admit-i ted evidence to go to them because you could notj do so, to ask what you asked, was to require tbel Court to extend its power beyond its limits, andi trench on the real, the undeniable, province oft jury,^ and we said, no, we can not keep it fit them, but it shall go to the jury under all the cirflaor cumstances you have proved, and which you cor sider ought to invalidate its credit. If thejur think witn you it will be well for the prisoner^ it is no longer us that have to do with the confe^ •ion* and therefore it would be useless to addi ai 403 us oil the iiubject. We admitted It to g6 to th« jary after hearing jou very fully upon the subje^f, and we can not now take it away. Nevertheless it goes to them accompanied by all you have proved relative to it, they are now the judges, that is the tribunal which must decide, for we can have no^ thing to do with it. Mr. Stuart, — I am not going td argue in oppo- sition to the opinion of the Court, but I did not consider that I was completely debarred, by its decision during the progress of the trial, from call- ing the attention of the Court to it, now We hav^ proved such strong additional circumstances. Chief Justice SeweU. — Mr. Stuart, I am convinced that you are only doing your duty in the course JOU take, because it appears to you a justifiable one, and calculated to be advantageous to the pri- soner, but I am also convinced that you will ac- quiesce with us that we are only aiming to do ours, and 1 think you will also acquiesce with us, that, iAer our decision, we can have nothing to do with the confession. I repeat it to you, Mr. Stuart, we did hear you upon it ; we heard you, as you know we always do, with pleasure, and we were, however unpleasant, compelled to.declde against you. We can not resume the subject ; it is finished. On the point your coleague has stated you widh t6 argue, the Court will hear you with pleasure. Mr. Stuart. — In excepting to the juriddictiori of the Court, I beg leave to remark, that the excep- tion is made as an exception by the counsel of the prisoner only. Our opposition does not arise from r'aU the cirWanj apprehension as to the verdict of the jury ulti- lately being that De Reinhard is innocent ; but e are counsel for the prisoner, and your honours now that even of technical objections, where the Te of a defendant is at stake, it is the duty of his insel to avail themselves, and although they (88 the pt but a mak- 'oposed iry. jontend- »nfession J jury. ive there- V jnours, I produced IS inadm'is- t it another nfortunate- Jgmentyou ^e we take it is to denrive credit i"' Courts >^ ^^ istice. 1Jb« Iff, the view o«, had you u\d have said avingadmrt- oucouUwll require 1^ Vimils. and irovmcc oCt keep it (tob hich yo« If thejui pri8oneT> ith the coni» [ess to the cor addt '*i''3-r.r ■■V f^ ■ cc llB;V« ■'■"4'- ^^K'Sm 'u I ■ ' / *:;m V»P ifi 4.V '.'! 404 entertain no doubt of the acquittal of the prisoner, ip tbe dutj which, as bis legal advisers, we have to perform, and a trying and distressing duty it is, p^ fcsel ourselves compelled to neglect nothing that, bj possibility, can lead to his acquittal. We iberefbre except to the jurisdiction of the Court, and as I shall have the nonour of being followed hj a leitrned friend with me who has bestowed con- siderable time and attention to the subject, I shall trouble the Coprt very shortly in opening, als I ^l^ll have an opportunity of again addressing the ^urt in reply to the Crown Officers. The first ' objection I shall have the honour to submit, is that the ofience charged in the indictment, if commit- ted at ail, was not committed in the Indian, terri* torj, as alleged, but in his Majesty^s province of Upper Canada. Chdef Justice SeweU, — ^Will you stay one mo- ment. If I understand you correctly, it is a geor graphical objection you make. You argue that Uiis spot, ^^ en haut des Dalles,^' is not in the In- dian Territory, but in the province of Upper Canada. Mr. Stuart, — That is my proposition, and in support of it, I proceed to remark that the first enactment relative to the management of this por- tion of Hia Majesty's dominions took place in 1763. It is known to all of us, that the conquest of thii portion of North America, by the British arms took place in 1759 and 1760, but, from that period to 1763, nothing was dope to provide a govemmeot for, or to regulate, this conquered country. lo that year, ( 1 763) a province called Quebec was created by proclamation. The afiairs of this ter- ritory, notwithstanding the proclamation of 1763^ r^eipained in a very unsettled state till the year 1783, when the whole of the coimtry called Canada was ceded to the Knglish, who have rc^tained poMes- }: oner, have jf itis, Dthmg . \Ve Court, lUowed ed con- IsbaU sing the rhe first it, is that ; commit- iianterri. rov'mce of 405 sion erer nitite. According to the riiolt r^ispecf able historians, we contend, that the portion of coitn^ try thus ceded was exc^ediiigtjr extensive, going, agreeably to some l^riters, a^ far as the river Ohio. Tne pretensions of the French, as we gather from history, carried them into countries distant, remote, and in fart odconnliCted altogether wrth the pro- vince creattid in 1763. The people of Montreal and Quebec, we shall shei^, had k>n^ traded into those ^Miy which are now so fancifully called the Hud- son's Ba]^ territory, and from which, after an un- interrupted enjoyment of trafhc for ages by the French traders, it is now bought to exclude enter- prise sknd competition. It must be apparent to every one, that after the conquest, this immefrise tract df coul^try required a government adapted to the change which had taken place in its circuih- stancets by becoming a prOvih^i^ of another nation. Its remote situation from the parent-state, ren- dered it impossible^ ad well as unadvisable, to le- gislate hastily for its necessities, but the parli'a- m^i proceeded to provide what it stood most in neisd of!; Accordingly, by the 14th of the kin^, the pt^ihce of Quebec wad enlarged, and here let m ttev^id^ki that a great d^al of the misapprc- hension Whi^h ^xisfd on the subject, arises frdin confoundffifg the province (^Quebec, as thus erect- ed and ei&rged, With what, under the Freiidi regime, was^ denominated Canada. This actnierely piN>vided a govi^rtiment for a portion of the con- fjjtimd tiOuAtry, as #ill imnliediately^ appear on Ye- rertingtb hiistory. Advertrhj^ to the 1 4 th of the l»og; the act of 1774; it Will be seen that ihe cdOntry, orected and et^lnrged thereby into this province of Quebec, i^as hot commensurate tb this coutitrv knoWii by th^ rt^attni^ of Canada, a^ a Ffehch coiotiy, and r^cOgniised as such by thfe l^'fettch iCod Bdtish governments. The object of ei '4' mm r 406 ■v't* ■• ;- w this legislative provision was to provide a ^Tenit ipent for that portion of his Majesty's province, whose necessities required it. It was to establish; a teniporary government for a portion of an im- mense continent, larger than England herself^ that this act of the British parliaooent provided. As settlements pushed themselves into tne settle- ments of Upper Canada, as civilization extended its stride, it became necessary to adopt a govern- ment for the whole, and the interval from 177i to 1791, afforded time to maturely (brm a suitable government for the immense territory known as Old Canada. Chief Justice Sew^L — You are making a small D^lstake, it was not to provide a government for Old Canada that the act of 1791 provided, but for the new prqviqce of Quebec. Mr, Stuart^-l know the act of 1791 mentions the province of Quebec, and it speaks also of Ca- nada. The proclamation issued m consequence of this act,*^I contend, must be construed liberally. It must be looked at, not as a deed of property, in which, only a minute survey can be taken ; we must not look at it like lawyers in our study; we must not contemplato. it as the act of aa. attorney i$urrounded by his musty papers and paktshments; But we n^ust view jt as the act of great and enlight- ened statesmen, legislating for the population of an immense and distant territory, with whose wanjts they were acquainted, and whose affections they were desirous of securing by liberal and mag- nanimous policy. But, even looking into this pro- clamation, strictly and minutely, we shall find this country, where it is alleged the offence was com- mitted, to be strictly and minutely the province of Upper Canada, agreeably to the act of |79], upon which the proclamation was grounded. This act. in providing for the more suitable gpy^rnment of nee, 407 the proTince, created by the former one of 1774, divided itvinto two partd,. and, iv6ihink,' even in a strict construction of the provisions of that sta- tute, and the proclamation issued in consequence of it, that, if this offence had been committed at all^ it has been committed in the province of Up- per Canada, and, conseouently, beyond the juris- diiition of this Court. But let us look into this act and proclamation,' with a broad, < liberal, and eahirged disposition, and we must' arrive at the iame conclusion, that, agreeably to this act, this edUHtry must form a part of the province of Upper Canada. I' am weli aware, that \v *he preamble to this act the province of Quebec is adverted to, hut the preambles of ^ts of parliament are never looked at as explaining the design of the legisla- ture, except doubt arises in the construction of the enacting clauses. It is almost superfluous to^t*e- mark that, for ascertaining the spirit of an act of parliament, we must refer to its enacting clauses; if thfey are clear, there is no necessity for refe- rence to the tireamble, which is but an introduc- tioQ^ a sort of preface, setting forth the necessity for legislative provision on the subject of the act, but not making the provision. On the other hand, ! freiely admit, if the words of the act are uncer- tain, if different constructions may be put oh the enacting sections, then w^ ought to go back to the preamble for the intention of the legislature, but that should never be done except doubt and uncer- tainty prevail in the body of tJie act. Adopting this sound principle, let us take up the act we are atthJB moment considei'lryg, and we shall find it so clear that misunderstanding can not exist for a mo- ment. In the proclamation issued in consequence of the 31 St of the king, cap. 31, we find the boundaries of his Majesty's province of Upper Ca- nada thus set forth. After a short introduction. f i ^1 km I'l 1 H 'i>'S 1 1 ■ 1 11 'vL'^hJU m i w % M &-|S ■ '1 » II 1 m ^^^ w '\':s~ 4$B t;i'i ni m '' ' ■^' , A, \) t ..^ :,t" 4Vi ; ir' I. '■■Q U : i: . iv .-St ^tftiog tlMi his M|ij«fty had thought fit« hy and ,^iih wei tt4.^ice of bis privy councri, by an order of councii, to divide fail proviace of Quebec into two diatioct provinces, to be caUed the province of Upper Canada, and the province of Lower Ca- nada, by^ffepar^ticiig the said line of provinces ac- cording to the following line of division, viz :— **( to *' commence at a gtooe boiindary o« tbe nertfa V bank of the lake St. Francis, at the cove west << of PointauBodeU in the limit between the town- '^ ship of Lancaster, and the sei^neurie of New ^^ LongueuiJ^ running along the said limit, in the *^ direction of nortln, thirty-four degrees west, to *f the westermost angle of the said seigneurie of *^ New LoQgueuiU thence along the north westein '^ boundary of the seigneurie oi Vaudreuily running >' north, twenty-five degrees east, until it strikes >^ the Ottawas river, to ascend the said river into *^ the lake Temiscamintf, and from the head <^the ^' said lake, by a line drawn due north, until it '' strikes the boundary line of Hudson's Bay, in- >' eluding all the terrilory to the westwara wi >' southward of the said hne to the utmost extent (' of the eountry commonly called or known by the " name of Canada." .NoW) vt'hat was the utmost extent of the coud* try commonly called or known by the name of Canada* we all know. It is that territory conquered by British arms in 1759, and ceded finally in 1763, to the British Crown, it was Canada recognized as isuch in treaties of peace, and other most import- ant documents entered into between France and England. That is Canada, the whole of whickt after the act of the 3l8t of the king, by the ad?ice of his privy council, his Majesty declared it was his royal will and pleasure, should j&rm the pro- vince of Upper Canada, with die exception oi the cprnparatively small part situated to the north an^ «« quite Mother Sj. ^ndlH^^A"^^^ ^"^^^^ "•eant m designatinff til i,^?"'.^ ".•»' '»»• been Canada. 1/ ,hf, hadW Jntn fr' ^'^ ^PP«' m-b. *h«t«, the Ji,^,w'i'*»«'««J.to form ,,,•«. oowrse was «„p|e a„d oL/ .f*'' province, th« |he utmost extent of country 'clmir t''"*" ""'<' Ih. Ma^stir', province of 0,..i^ ?'^ '""'wn a. the case, tU b^„ wa!^o,^ ^" '* •"" *•« " not u. oow, for , „ ™ "°* "".circumscribed. Let «« «««» pro- J««ation isaued b coS.. ''"'?\'' ''» ""^ Pro- H the act bjwbkhTir °'^"'' ^'^' "^"-^ '««, thatUpper Ca^wl - .*"*^'"'"*«"' '^ pro- "tertitorj to tWeXt/^^*° '"'=''«'« " <»» the - ""WW' C h^ iTil ^f '^ \"*' southward of the •""•Inown bv th« nol! i-^''^^ commonly called «a« that I iXto'd &t" ^ ^™ 4 |«"8act and of tuT i ** '" *"e preamble of '.if ^«p ■'■ If III lH i . ^> ^ Vk:S ■•• ^1; if. vj . J..,'. f^:^ !K:-?r;^f.^i;|i ■fJi ^::.| 1.. '» J:..: - ni? iS ^J? ^m^S^s^- 410 that the preambles of acts of parliament nre, in ge- neral, loos'^ly and vaguely drawn upV and ought to form no criterion bj wnich to estimate the ob- jects contemplated by the acts themselves. That this is the case is known to every lawyer and every legislature. It is to the enacting clauses of any statute that we must refer to ascertain with accu- racy the provisions of the act. Adopting this cer- tain rule lor our guide, here we have a clear ma- nifestation of the'intention of parliament in the act of 1791 ; it was to create two provinces of Cana- da, andf in defining the limits of the Upper, it declares that it shall, in a certain direction, include ** the utmost ertent of country commonly called" What.? the province of Quebec? No! It shall include ^^ the utmost extent of country bommonly *' called and known by the name of Ca»a«/cf." The utmost extent of that country which, as I have be- fore remarked, was the conquest of British valour in 17.59, by force of arms, and wbbh was finally ceded to Britain by the treaty of Paris of 1763, of that immense territory which has never by anj treaty been surrendered, which as it is, and has from -the time of its discovery, as well as its ces* sion, been Jcnown as Canada, must bo the terri- tory which was intended by this municipal enact- ment to form the province of Upper C&nada. That being the case (and I think it is the only construc- tion, even in a minute point of view, that can with propriety be given to me statute,) we fmd that the Dalles are strictly within the province of Upper Canada, consequently out of the jurisdiction of this Court, and the offence charged, if committed at all, is not cognizable under the act upon which the indictment is founded^ ^^ I come now to the more broad and liberal inter- pretation of the act, and I shall, as ( apprehend, hAve no difiicul ty in shewing that we can not arrive 411 inge- ought le ob- That I every of any h accu- hia cer- ear ma- i the act of Cana- Jpper, it I, include . Y called'* Mt shall jominonly dar The 1 have be- tish valour was finally of 1763, of tv by WX3 19, and has as its ces- r. tho terri- cipal enact- Uda. That iy construe- lat can vr'ith :ind that the B0 of UpP«f •risdiction ol if committed upon which liberal inter- I apprehends eannotarrive tt an J other conclusion. The 14th of the king was evidently intended to provide a temporary government for that part ol the newly acquired territory, which stood most in need of it. It was passed at a season of great difficulty, when anxiety and alarm pervaded all classes of society in Eng- land relative to the issue of the disputes between the parent state and those of the colonies which she has since acknowledged as the United States of America. At a period when the intercourse be- tween the province and the mother-country was so limited, that it could hardly be said to belong to it, such was the moment in which the act erecting the province of Quebec was passed ; an act whose temporary nature may be clearly deduced upon a single reference thereto. This province was to subsist only, by the act of 1774, till the king should see fit to alter its limits. In 1791, the si- toatioD of afiairs, relative to this portion of the British possessions, was widely dinerent, and the British parliament proceeded to form a people, whose loyalty during a contest which had severed such numerous colonies from the dominion of Bri- tain, had well entitled iheni to the distinguished and distinguishing privileges secured to them by the munificent act of 1791. Refer to the acts of 1774 and of 1701, and, surveying the difference, is it possible for a moment to imagine that the government of 1791, intended only to legislate for a part of Canada.^ Is it, I would ask, reason- able to consider that the minister of a great na- tion, such as England, contemplating an extensive and valuable, though distant territory, belonging alike by conquest and affection to the mother- ccuntry, and entitled to protection in time of war from its superior strength, in time of peace from its extensive and unequalled trade. Entitled to receive, and have secured to it, the due adminis- i -!..■*' tli-' 412 *!»» ■" , .1 I J'*H im-^mm 'J (ration of justice, and the tmreitrioted anjovment of rtligioufl freedoan. Is it, I ask, reasonable to suppose, that from 1763 to 1791, the great men who presided over the councils of Britain intended at that period to propose a government for a part of Gfinada ? To suppose so is to suppose they were sleeping at their post. Can it, 1 ask, be imagined that a minister could be found so regard- less of his duty, so ignorant of the necessities, so insensible to the lojaltj, of this country, or so negligent to the interests of his master, as in 1791 to propose a government to Apart of Canada? We can not suppose it ; they have not so neglect- ed us* They nave given us a government, and a constitution, superior to any on earth, excepting their own, after which it was modelled. A go- vernment, suited to our necessities, and cained bj our unshaken and persevering loyalty, when revo- lution tore our sister provinces from their allegi- ance, and strove to associate us in the revolt. I ask then, is it for a moment to be behoved, dist such magnanimity would be famished by then advantages beinr confined to only a part of a peo- ple of the stime olood, equally brave, loyal, and grateful, and equally standing in need of, and equally entitled to all these privileges ? If any should' be found disposed to support^ oy argument, a (Contrary opinion, they ought to be confident, •before they make so heavy a charge as is involved .therein, that they can substantiate it beyond the power of contradiction. But there is no occasion to apprehend such an argument, for the prodatta- tion is clear as the noon-day sun upon the subjMt It tells us that the act of 1791 has provided a libe- ral, an equitable, and a permanent government for the brave, the loyal, and grateful, population of an extensive tract of country^ withim jcertaia la- 1 titudet and longitudes, <« incl tiding fl^l the teriitory 413 •* to Um westward and southward of a line drawn M diia north from the head of the lake Temisca- M Biingt until it strikes the boundarj of Uudsoo't ^ Bajf to the utmost extent of the country com- w monl J called or known by the name of Canada.'* What that country consisted in I have had the honour of submitting to the Court in the earlj part of the argument I have had the honour of addressing to the Court. In conclusion, I contend, OD this part or view of the subject, namely, the broad and liberal construction ot the act of 1791, that by Canada must be meant Canada as known to the French, from whom it was taken, and who, io cedinj^ this part of North America to the British Crowo in 1763, actual y, ns a pari: of Canada, ceded the Dalles. Reverting to the whole qucs* tioD, I contend, that, whether tlie act of ?791 is coDStrued according to strict, rigid municipal roles, or contemplated with a broad ^ loeral, and itatesoian-like spirit, the Dalle*? form apart of his Majestj's province of Upper Jui '\da, and if the ofience has been committed at all, it has been com- mitted out of the jurisdiction of this Court. Mr. VaUhe de Sl RSaL-^S'i} plait i la cour, j^ai llumneur de soumettre qu'il me semble que le itatat du quatorzieme du roi, sur lequel messieurs leg avocats de la Couronne comptent, frappe le lectear immediatement comma un acte temporatre, et qull n'^toit pas destine a etre im statut perma- leat 11 est vrai que ?:r>r cet acte des limites fu- reot donnees a Tancienne province de Quebec, mais oes limites devroient exister seulement pen- ^t le plaitir du roi, et son plaisir est clair et coDou par Tacte de 1791, Mais Tobjection prin- dpale de mes savants confreres, les- procureurs de laCooronne a notre construction de cet acte est c^ que dans le preambule ou titre, on trouve la ptorinca da Quibac Mais c'etoit une bonne r»> .It* W ■, .1 X ,uwi t m \mi t fl 1^ . .•!^ .w ;i ' i ,r* i-^ 414 marque die men savant confrere Stuart, que le litre d'un acte n'est rien, quMl est comme le preface d*un liyre, mais qu'il faut regarder aux clauses qui ordoDHent, pour y trouver son esprit. Nous aavons qu'il est necessaire dans le titre d'un acte de raconter le titre du vieii acte qu'on redige^ et c'est peut-Stre par ^ette circonstance que Tes mots ^ ta province de Quibec*^ ont et6 introduits dans l*acte de 1791. Mais nimporte, il est impos- sible de regarder la proclamation du roi, son ordre en conseil, autrement que comme donnant ^^ tout da ee qui a eie connu comme ** Canada," a la province du Haut Canada.— Regardons aux limites, et nous verrons que la iigne de division entre les provinces est ceci, savoir *' d'une borne en pierre sur le bord nord du lac St. *^ Francois a la baie ouest de la Pointe au Bodet '^ dans fa limite entre la jurisdiction (township) de *^ Lancaster et la seigneurie de la Nouvelle Loo* ** gueuil, courant le long de la dite limite dans la di- *^ rection de nord trente-quatre degr^s ouest, jus* ** qu^k Fanffle le plus ouest de la dite seigneurie de ^ la Nouvelle .Longueuil ; de la, le long de la boroc ^ nord-ouest de la seigneurie de Vaudreuil, courant ** nord, vingt-cinq dSgres est jusqu^a ce qu^elle ** tombe sur la nvi^re des Ottawas, pour mon* ^ ter la dite riviere jusqu'au Lac Temiscaming, '^ et du haut du dit lac par une ligne tiree *^ vrai nord jusqu'a ce qu'elle touche la ligne »« bom^e de la Baie d^Hudson, renfermant tout ^ le territoire k I'ouest et sud de la dite ligne j (( jusqu^a I'etendue la plus reculee du pays com> ** muniment appell6 ou connu sous le num de Ca-I *^ nada." Je remarque que ces limites sont trcs bien connues et qu'elles etoient aussi bien connuesj avant la proclamation. Moo savant confrere.! 'Ill 415 I le titre preface clauses :. Nous I'un acte I redisCf que les introduits Bst impoa- Bon ordre Mit ''tout nord da me bomee nu comwe Canada.— quelalignft . ;ecu savoir d du lac St. te auBodet ownsbip) de >uve\le Lon- tedansladi- 8 ouest, jU9- ieieneurie de r die la borne ;^u\l,courant •^ ce qw'®^** pour tnon- 'emiscamingt . ligne tirce fche la Vigne iferinanl tout la dite \\^ lenoniaeCa- lites 8ont trc9 bien connuc« rgnt coniretcl Stuart, a biea expliqu^ Fetendue de ces limites, et il n'en a pas pris une vue trop large. Les mots de la proclamation sont trea remarquables. Apres avoir donne les ligiies qui s^paroient la province du Haut Canada de la province du Baa Canada, elle ajoute, *^ renfemmrU^^^ (une expression tres remarquable,) '^ rmfermani tout le territoirc a t* Pouest et sud de la dite Ijgne,'^ (la ligne tiree vrai nord ^.*i haut du Lac Temiscaming jusqu'a ce qu'elle touche la ligne born^e de la bai'S d'Hudson) '' jusqu^a Petendue la plus reculee du ^i pays communement appelle ou connu sous le nom ^^ de Canada/' Regardons ces mots, '' Tetendue ^^ la plus reculee du pays communoment appelle ^ ou connu sous le nom de Canada/' Les mots ne sont pas '^ du pays communenient appelle ou ^ connu sous le nom de la province de Qie^^ec," non, point de tout, mais ils discnt, '' sous lo nom ^ de Canada,''^ La question done est celle-ci : — Quelle est Tetendue la plus reculee du pays connu eomme Canada ? L'abbe Raynal dans son Hi:)> toire des Indes, parlant de cc pays, au tome 8, livre 17, page 238, dit, ^^ L*annee 1764 vit (^clote *^ un Douveau systeme. On demembia de Canada ^ la cote du Labrador qui fut jointe a Terre-Neuve; ^ le lac Cbamplain et tout Tespace au sud du qua* ^ rante-cinquieme degre de latitude, doiit la Nou- ^ Telle York fut accrue; Timmense tt^riitoire a *^ Touest du fort de la Golette, et du lac Nipissim, ** qui fut laisse sans ^ouvernement. Le reste sous '* le nom de province de Quebec fut sourois a tin ^^ chef unique." La description de cct historiea respectable du territoire qu'on demcmbra donnc une id6e correcte du pays connu comnie Canada. Ce systeme nouyeau, dit-il, donna une partie de Canada a Terre-Neuve ; par une autre partie, sayoir Tespace au sud de quarante-ciiiq dtigi cs de latitude, la Nouvelle York fut accrue ; ^* rimmense I t^t II 416 ^.'|i: ' ''^ ■li ■ ♦■■,' 4., ' II 11 v^a^ '■•'M 5 ''-''' >-'J i ■;1!1 >< ** territoire & Toaest da fort de la Giolette, et da ^ lac Nipissiai, fat Jaitse sans aucun gouveme- *^ ment x'^ (el, coaonw oioo savant confrere Stoart, a bieo sooteou, c^ett cet immense territoire que la proclamadoo de Tannee 1791 a donn^ au Haut Canada comme ^saot partie du pays ^^ appelle et ^ connu sous le nom de Canada'*) pendant que ^ le reste** (de oe pajs connu sous le nom de Ca- nada) ^ fut soumis, sous le nom de province de ^ Quebec k on chef unique.'' J^ai 1 honneur de ioumettre avos bonoeurs que, regardant aux mots de la proclamation de 1791 et en le^ comparaat avec oette detcription de I'abb^ Raynal du terri- 'toire laisse sans aucun gouvemement, nous le IroaveroDS etre le pays aue, par cette proclama- tion, on se proposa ae taire une partie du Haut Canada, dans le tems qu'on declaroit que la ligne seroit ^ tii^ du haut du Lac Temiscaming vrai *^ nord josqu'a ce qu'elle touche la ligne bornee ^ de la Baie d'Hudson," (et en outre) renfer- ^ mant toot le territoire a I'ouest et sud de la ** dite tigne jusqu'a I'etendue la plus reculee du ^^ pays communement appelle ou counu sous le *^ nom de Canada. Ce territoire 6toit alors coiioa sous le Dom de Canada, et il est situe a I'ouest de cette Hgoe li, done par la il se trouve ^tre une partie cfii Haot-Canada. EIncore, je prie Tattention de la Cour a I'ouvrage de monsieur Pinkerton, uo g^ograpbe Anglois tres connu. Cet an teur distin- gue, paHant de I'etendue de Canada y donne des gpranoes liiiiites;('*) vol. 3d, page 234, be sajs, f ■*) MMf H please the Court : I have the honour to submit that itappran to ow that the statute of the fourte«foth of ibeking (ttpoo wbidi the Crown oficeia rely) mu&t instantly strike ibe reader as ben^ a lenpoiarjr act, aod that it never was iniendd to be a peraaaeiit ooe. It is true, that boundaries were ^ireo by this act Id the old pnmnce of C^bec, but these bouodaries wem oelf to if isiii dariiii the king's pleasuif, and bis will ti et dil fefot- Btoafty re qoft a Haut peUe et Mil qut I de Ca- 'ince de ineur de aUx mots )inparaQt du terri- nous le proclama- du Haut lie \a Vigne Lining vrai »ne bornec L'j renfet- sud de la retu\ee du pnu 8ou» le Llora connu Vouest de e etre une e \'attention lukerton, un Luleur di»t\n- y donne des [34, be 8»ysi Lnoar to ««^^ Le«e booodani* 417 • this cbiih'trj** (Canada^) is contputed to extend «« from the gulf of St. Lawrence and isle of Anti- M costi in the east, to the lake of Winnipic in the « west, or from longitude 64** to 97° west (rom «« London ; thirty three degrees, which, in that lati- ^^ATif made known by the act of 1791. But the principal ob- jectioii '.vhicb my lennied brethren the counsel fur the Crown, make to our construction of that act is this, that in the preamble or title tu it, the province of Quebec is mentioned. But it was well remariced by my learned brother, Stuart, that the preamble of an act is nothing, that it is like the preface of a book, but that we must lorik at the enacting clauses, to discover its spirit. We know that it is necessary in the preamble of one act to recite the title of the old act which is amended, and it is, perhaps, to tbt circuipstanco that may be ascribed the introduction of the words, " the province of Quebec,'* in the act of 1791. But that doe* not signify, it is intpossible to con.«ider the proclamation of the king, or his order in council, otherwise than as giving to the province of Upper Canada, *' all the country to the west of a •' line drawn due north from the head of lake Temiscaming to ** the boundary of Hudson's Bay, which was known as Canada.'* Let us look at the boundaries, and we shall see that the boun- dary line between the provinces is this, namely, from *' a '* stone boundary on the north barik of the lake St. Francis, ** at the cove west of Pointe au Bodet^ in the limit betweea <* the township of Lancaster, »nd the seignory of New Loneiueuil, ** running along the said limit in the direction of north tnirty- " four degrees west, to the westernmost angle of the said seignory "of New-Longueuil, thence along the north-western boundary " of the seignory of Vaudreuil, running north, twenty five degrees "east, uutilit strikes the Ottawas River, to ascend the said ri- ** ver into thc^ Lake Temiscaming, and from the head of the said '* lake, by a line drawn due north until it strikes the bound:4r]r "line of Hudson's Bay, including all the territory to the west* " ward and southward of tlie said line, to the utmost extent of the " couhlrycommonly called or known, by the name of Canada." t beg to remark that these limits are very well known, and also that Ibey were well known before the proclamation. My learned brother Stuart, has well explained the extent of these limits, and lie has not taken too wide a purview of them. The words of the proclamation are very remaJjK^ble. After having described the IIdcs which separated the province of Upper-Canada, from the province of Lower-Canada, it adds, *• including^* (a very re^ earkable expression) ** including all the territory to the west ttd south of the said line,'* (the line drawn due north Cran tbf PP ti y' ,.M1 ill 1 M »li , «■ m. ^^'.c)' %^ ^ 418 " tude, may be about twelve hundred geograpbi- *' cal miles. The breadth from the lake of Erie ** in the south, or latitude 43°, may extend to ^ati- *' tode 49*** or three hundred and sixty geographi- *^ cal miles, but the medial breadth is not above two head of Lake Temiscaming, until it strikes the boundary of HuJ.son^s Bay) '* to ihe utmost extent of the country commonly ** called, or known, by the name of Canada.'* Let us consider these words, ** th^ utmost extent of thn country commonly called, ** or known, by the name of Canada " The words are not '* of the country commonly called, or known, by the name of ** the province of Qwe6ec ;" no, not at ail, but they say, •♦ by ** the name of Canada*^ The question therefore is, what is tbc utmost extent of the country known a*; Canada ? The abb^ Raynal, in \a^s History of the Indies, speaking of this countiy, Tol. 8. book 17, page 238, says, ''the year 17C4. beheld the riw ** of a new system. Canada was dismembered of the coast of •( Labrador, which was added to Newfoundland ; of LakeCbam- ** plaio,.j|Qd the whole tract of land to the south of the forty-fifth ** degree of latitude, with which New>York was augmented; of ** the immense territory to the westward of Fort Gnlette aad of ** Lake Nipissim, which was left without a government ; and ** the remainder, under the designation of the province of Quebec, '** was placed under one governor." The description which this respectable historian here gives of the territory thus dismember- ed gives a correct idea of the country known as Canada. This Dew system, he says, gave a part of Canada to Newfnuniliand. New-York was encreased by another part, namely, the tract t» the southward of the forty-fifth degree of latitude. " The im- mense territory to the west of Fort Colette and of Lake Nipi^ ■iro, was left without any government :" (and, as my learned brother Stuart has well maintained, it is this immense territory which the proclamation of the year 1791, gave to Upper-Cam* da, as being a part of the country, ** called or known by the '* name of Canada," whilst *Mhe remainder" (to wit, of the country known by the name of Canada) ** was placed, under « the designation of the province of Qpebec, under one gum- <* nor." I have the honour to submit to your honours that, looking at the words of tlie proclamation of 1791, and compar* ing them with this description of the abb^ Raynal of th«> temtory left without any government, we shall find it tube the countiy which, by this proclamation it was pntposed to make a part of fJpperCanada,at the tim« when it was declared that the line should be "drawn from the head of the lake Temiscaming due north until ^* it ttrikef the bouodary line of Hudfoo's Bay" (and moreover) ■iJA rraphi- >f Erie to \ati- graphi- ove two aundary o£ commonly us consider ,nly called, rds are not the name of ^say, "by what is the Tbe abW ibis country, jheld the rise i Ihc coast oi f Lake Cbam- the forty-fifth lugmented •, of 3olette and of ernment ; and nceofOjiehec, ,lion which lh» us dismember- lanada. This ewfoundland. [y, the tract ti *; u Tbe im* ,'f LakeNipis- as my ieamei mense lerritoty 10 Upper-Caw- known bytw (to wit, of the placed, under ,der one gover- ,r honours that, jl, and compar* 1 of thp territory be the country t, make a part ot [at the line ^ J L due north wtrt (and moreovet) i * hundred/* So far he speaks of the absolute ge* ographical extent of Canada, the subsequent ob- servation, which he makes relative to the original population of the country, strongly supports the argument which we have the honour to submit to the Court, viz. — that this country, described by the abbe Raynal, as ** Pimmense territoire qui fut *^ laisse sans aucun gouvernement,'* is the very country intended by the proclamation of 1791 to receive a government, ana become a part of Up- per Canada. ^^ The original population,** (says Mr. Pinkerton,) *^ consisted of several Savage ^ tribes whose names and manners may be traced " in the early French accounts, which may also be ^consulted for the progressive discovery, the (((irst settlement bemg at Quebec in 1608.— ^' During a century and a half that the French pos- ^sessed Canada, they made many discoveries to- ** wards the west^ and Lahontan, in the end of the ** seventeenth century, has given a tolerable ac- ^ count of some lakes beyond that called Superi- »* or, and of the River Missouri. Quebec being con- ♦*miered by Wolfe in 1759, Canada was ceded to ♦* Grsat Britain by the treaty of Paris in 1763." — Done je soumets avec confiance, que ce territoire i Touest qui a et^ ddcouvert par les Francois et decrit par Lahontan, et d^autres auteurs, sous le nom de Canada, est v6ritablemcnt devenu une par- tie du Haut Canada selon la proclamation de 17919 " including all the territorj to the westward and sooth ward of the " said line to the utmost extent of tbe country commonly called " or IcDovrn by the name of Canada." This territory was then known by tbe name of Canada, and it is situated tn the west- ward of tbat line, and therefore it proved to b«^ a p;>rt of U|>per Canada. Again, I beg tbe attention of tbe Court to the worl^ l*[Mr Pinkerton, a well known English Geographer. This I distinguished author, speaking of the extent of Canada, fivei I ^e7 la^e bounds to it. *© P ^■' it f.Hl m fnSM 420 et cons6quemment qu^ii ne fait pas one partie du territoire Sauvage, fii n'est sous la jurisdiction de cette Cour. L^abb^ Raynai et monsieur Pinker- ton s^accordent dans leur description des limitcs Guest du pays connu srus le nom de Canada^ et {>our la limite sud du CanafJa regardons encore a 'ouvrage de l*abbe Raynal. Get auteur, parlant dans le meme tome de son Histoire des Indes, de Fetendue, sol, et climat, de la Louysiane, dit, (livre 16, p. 111.) *' La Louysiane est une vaste con* *' tr6e, born^e au midi par la mer, au levant par *' la Floride et la Caroline, au couchant par le ^ Nouveau Mexique, et au nord par le Canada, et ^' par des terres inconnues, qui devoient s'^tendre ^ jusqu'a la Bare d'Hudson. 11 n'est pas possible ^ de nxer sa longueur avec precision, mais sa lar* '^ geur commune est de deux cent lieues.^' Ici nous voyons que la limite nord de la Louysiane est le Canada et des terres inconnues qui devoient s^e- tendre jusqu'a la Baie d^Hudson. Avec la procla- mation de Pannee 1791 sous nos yeux, laquelle nous dit que les limites du Haut Canada renfer- ment tout le territoire a Touest et au sud connu sous le nom de Canada jusqu^a Tetendue la plus reculee de ce pays, il est impossible de dire que ce pays la^ qui borne la Louysiane au nord, selon rabbe Raynal, ne fait pas, suivant cette proclama- tion, dans ce moment, une partie du Haut-Canada. Le pay» connu comme Canada s^etend au sud jus- qu^a la Louysiane, et a Touest jusqu^au quatre- Tingt-dix-septieme d6gre de longitude. 11 reste a present a considercr la limite nord du Canada, et ici nous n'avons par la meme certitude. Dans les cartps de la nouvelle France certainement toute la riviere. Winnipic y est renfermee, et la ligne de la limite au nord est tiree dVpres Tinterpretatioo des limites du Canada que nous avons soumis a la Cour. Que cette interpretation est une interpre- **1 tation correcte «t nn'oii » liberty de prier I'atSn J f^'V P"""*""" "« nous coDsitferons r^l! " *** '» ^our i -e o,.! -onnances," tome^ari^, " '«" ^dhs et o;: « France dul/F^vrieTiS"* "\'« Nou^eS "sieurdeChampfain" r^.^'l""' «"" ^veur du ottenues, et proc^rfe, danst t.?"- '""'*'°° P""" '"i clarer d'une mani^rc /a Ss dIT'T" P^S^**'^ '^^- . pnse le gouverneuientle pL '^J K""* q-'avoit cefte partie de leurs nnf •'""'*' <*« ''etendue da '"ujours que to uletffir'? ,"' '' •"""■endra connu comme £,a„! Sf^, ^V' '« Franyois o™ »» »ud et a I'oues. de lEeP'^""'" "^^ ^^"'^da honn^e dans mon di.cou f s- fr™ ''"-'"°""" "^n- Par la proclamation du R^ j" .70^1''^ '»'-<'-"'^. trouvera faire actuellement n»i?^''.'^« fe>re,etse 'l.'i; -.».e .ems excite aucun douter ' ^'""«'"'*I»» f France de les donner n^J '" Pi-erogative J 'a part d'ancuoe au" ,;' „at.r" V'"'^*=''«'»«nt «»» en premier lieu, ord^„„e'7,, • ^^"^ '^»"»°«- :^ Champlain not;e SenVn „?"'"' " '* "'«'"• »o«« personne au dit ™?. ' ^T '*P'*''«nter '' France, et pour cetX/^^ de Ja Nouvelle "bec^anttledansJefleSvesfr ' **"''«"<'« Qu6. 'PP«"^ 'a gnu.de rSe^^crd:r*^r£ M :*: { J -i-*l * Ml 429 «^ pays de la Nouyelle France.** A present nouo Tenons tea pouvoirs qui ont kik donnes par cette conjaiission. ^^ Et au dlt lieu, et autres endroits, que le dit sieur De Champlain avisera boq etre, faire construire 4ii b&tir tels forts et fortresses qui lui sera besojn ei necessaire pour la conser- vation de ses gens, lequel fort ou forts il nous fai'dera a son pouvoir pour, au dit lieu de Que- ec et autres lieux et endroits en i^etendue de notre dit pouvoir, tant et si avant que faire se pourra, etablir, etendre, et faire connoitre, le nom, puissance, et autorit^, de sa Majestc, et ,ep icelle assujettir, soumettre, et faire obeir, tous Jes peuples cfe la dite terre, et les circonvoisins d^icelle, et par le mojen de ce, et de touteg autres voies licites, les appeller, faire instruire, provoquer, et ^niouvoir, a la connoissance et service de Dieu et la religion Catholique, Apes- tolique et Rooiaine : la j etablir, et en Texercicc et profession d^icelle, maintenir, garder, et con- server les dits lieux sous Tobeissance et autorite de sa dite JVlajest^ ; et pour j avoir ^gard et va- 3uer avec plus d'assurance, nous avons en vertu e notre pouvoir, permis au dit Sieur de Cham- plain, commettre, etujblir et substituer, jtels ca- pitaines et lieutenants pour nous que besoin sera, ct parcillementcoamiettredes omciers pour la distribution de la justice, et entretien de ia police, rcglemens, et ordo;inanc.es, jusqu^a ce que par nou.'^ autrement en ait ete pourvu ; trai- ter, conlrart^r, a niepae effet, p^ix, alliances, confederations, bonne amiti6, correspondence, et commnnication, avec les dits peuples et Icurs princes, ou autre avant coprunandement sur eux, entretenir, garder, ,et soigneusement conserver, les trait^s et alliances doqt il conviendra avec eux, pourvu qu'ils y satisfasscnt de l^ur part j ct a Jeur defaut leur faire guerre ouvertc pour les ;• -'^.- d" moins, ;^° 'Wvrc "half **T'* P"™'" « amiablement erS5e^t"^??«e': «. ,ra^q„er « depuis le Hit lieu deQ,^!""^'' " notamment • fes terres et rivieres n..i « j^ i ° '*'*'«"' <'e II nV a point eu des bornes fixees.'* e prie Fattention particuliere de la Cour a Pex- pression, ^^ II n'y a point eu des bornes fixees i ^^ Pouest et au nord-ouest, c'est pourquoi on peut ^' Bupposer qu'elle" (la province du Haut Canada,) h ppMyro les vastes regions qui s'^tendoit vers To* y U5 menc uelle* Bsion, ireuve ement lis que Cham- forts et y adet ans ees ine po3- pr6sent >Bsession lepuis la 3 Canada ant celle 50 regard bar\evoix^ : tons let les limUeft n'feloient ,iniue une iixees au |e de Dtton- cette pro- a tout c« et cotnme L departe- fetre estime fhette, par- \ sa Top(>; 69 fixees. lour a Vex; ies fixees 5i loi on pe« it Canada,) >it vers Vo- ^ cein Pacifique et la mer dti Nord. Las bornes (« qui la sejparent des Etats Uiiis soot si incertainety «* et si tnal ^tablies, et ont ct6 la source feconde d% ^ tant de querelles cntre leg deux puissances, A« qu'eUes ont demands depuis long temt la r^vi* ^ sion qu*on en va faire incessammenti en execution »* des quatrieme et cinquieme articles du traits de ^ pais de J tt 1 5/* Ici nous avons la d6claration da monsieur Tarpenteur gen6ral de cette pro?inc«9 qu^il iCy a point eu des bornes fixees a rouest et au nord-ouest de ce pays qu*on appele Canada. Monsieur Bouchette parle de la proclamation da 1791, mais celle-ci est son opinion. Dans le cas, oil il ne se trouve pas de limites precises fixees, il faut nous inforci^'^r comment ceux qui vivoient alort et qui eurcnt connoissance du pays, comment Jea geographes de ces jours, ont compris le sujet. Ro» gardons done aux cartes geographiqucs, et noua trouverons que la Riviere Winnipic en son entier est depeint comme appartenante au Canada.^* Quand monsieur Boucnette, parlant de ce paya dans sa Topographic, a dit qu^il n*y a point des bornes fixees et ajoute, *^ c^est pourquoi on peut ^'supposer qu'elle couvre Jes vastes regions qui ^ s^etendent vers i'ocean Pacifiaue,** il est bien certain, a ce que me paroitvqu'il parle de la pro- clamation de 1791, quidonne toutle pays, (*^ jus* *^ qu^a Petendue la plus r6culee,^^) commun^ment appele ou connu sous le nom de Canada, a la pro- vince du Haut Canada. Les territoires Sauvages sont au nord de la ligne tirce comme susdit, par- ceque tout le pays au sud et k Touest se trouve dans le Haut Canada. La seule chose a consi- derer me seroble celle-ci ; que la proclamation de 1791, ne donna pas les homes de la province de Quebec couMne les limites des deux provinces, mais que, dans les mots actuels de la proclamation, leg limited du Haut Canada, s^etendent d'un c6t4 I ■ h 1. '.1 426 ** du haut du Lac Temiscatning, par un« ligne ^ tiree vrai nord jusqu^a ce qu^ollo touche la ** ligne borate de la H-^'' d'Hiidoon, retifermant *^ tout le territoire a ■ - <}ewt ct cud de la dite *^ ligne, jufqu^^ Totendt la plus reculoe du payt ** commun^ment appel6 ou comu sous le noni de •* Canada." Par le Fort Bourbon ct le Fort Dauphin, et plusieurs autres circonstances, il est ausni bien cer- tain que ce pays, oi) les Dalles se trouvent, ^tojt possedd par les Fran9oi8, et, comme nous disons, et comme j^^spere, nous avons prouv^ par les cartes ct par les auteurs de grandes lumieres, (avce Icsquels monsieur Tarpenteur g^n^ral de cette pro- vince s^accorde,) que ce pays au sud et a Touest etoit appcI6 ct connu sous le nom de Canada. En- fin, je dis que les Fran9oi8 ont connu ce pays com* me Canada, et quMl n*y a rien au contraire qtron pourroit produire, et de plus si nous ne prodiii* sons pas de preuve absolue que les Dalles sont dedans les bomes du Haut Cfanada, nous avoni prouve qu^il nV a point cu dc bornes fiices, et par la meme autorit^ (une autorit^ bien en droit d^ctre respectee a cause du charge que remplit son au- teur,) qu^on consideroit qu^elle couvreJes vastes regions a Touest et au nord. C^est a vos honncurs a dire, par votre dccibion, si les Dalles so trou- vent y aedan8.(") P») I therefore confidently submit tlint this western territory, wliicli bad been discovered by the French, and is dencribeJ by Lahontan, and other writers, under the name of Canada, became in reality a part of Upper Canada by the proclamation of IT'Jl. and con^equentlv dot^s not form a part of the Indian territory, nor is it within the jurisdiction nf this Court. 'J'he abb^ Rayiial and Mr. Finkerton agree in their description of the western boundary of the country known by the name. of Canada, and iot the fiouthern lioundary of Canada, let u« again look at tha abbt RaynaPs work. This writer, in the same volume of bis fbMory of th« liidiMi trtating of the extent, soil and elinatt of Louyii* 427 «<^*sary to argue it • TJ. .V ." »''»'>« •«>- ha. be«„ producfd. a„d l.T"' **"' "^ '«"»"« «./.«7 learned fr J Zt:^^' '^"*''*'f " P*^®^® ™i'y -iu, iiSr. p " liMda eilends lo Ibe wmli .. fi., V "* eounlrv known » «l "ke north.™ bound„y in, , Xj!'""'"''' " '""''"'ed i^. 7 .^W 10 Ifce French l^r^en. .' '!?."" P''^"'"*' »• 'kJ we*' «MN»rfr7^ 7 "'hich the French TnLlit^^"'"^*''*' »^«»'^ion '.' *. . mi 428 ivhich ther •«< out, viz :— -that if the oflTence al- leged in the indictment to have been perpetrated and that by the prisoner at the bar, has been committed at aH, it must have been in the province of Upper Canada, and consequently out of the fdnnd actually to make, part of his province of Upper Canada, ** as far as the utinusl extent of that country.'* Let us look at this act, and vre shall perceive from it, that the must extended pnwe» were given to the sieur De Chnmpiain, puivers nhlch, it must also be maintained, did n(»t at the time awaken any duubls •s to the right which France had to grant them, nor any impe- diment to their exercise, on the part of any other nation. This commiraion, in the first place, ordains and deputes, *• the sieur ** De Cbamplain our lieutenant, to represent our person in the ** country of New France, and to that effect, we have ordered ** him to go and reside, with all bjs people, at the place called ** Quebec, being within the river St. Lawrence, otherwi^ called ** the great river of Canada, in the said country of New France." Now we will look at the powers which were granted l>y this commission, ** and in the said place, and in other places Tvliicli (he ** said sieur De Champlain may think fit, to cause to be erected ** and built such ft>rts and fortresses as may be wanted and ne- ** ceasary to him, for the preservation of his people, which fort *' or forts he shall keep for us in his power, in order, at llie said ** place of Quebec, and other places and stations within the ex- ** tent of our said fiower, (vice-royalty) as much and as far as ** may tie, to establish, extend, and make known, th6 name, ** power, and authority of his Majesty, and in the premises, t« ** conquer, subject, and bring to obedience all the people ni'lbe ** said country, and of the circumjacent countries, and b/ '* means thereof, and of other lawful means, to call iheni, ** cause them to be instructed, excited, and moved, totvards ** the knowledge and service of God, and of the catholic, apos* ** tolic, and Ilomnn religion : to-establish it there, and in (be ** exercise and profe<>siun thereof, to maintain, guard, and ** keep, the said places imder the obedience and authority of his ** said Majesty ; .ind in order to have regard thereunto, and ** more surely to fulfil the s.ime, we have in virtue of ourfaid, ** authority (vicc-rogal) permitted to the said sieur De Cham- 1 ** plain, to comrtiisbion, appoint, and substitute, such captaint i ** and lieutenants for us, as need may be, and in the likft manner <* to commission officers for the distribution of justice, and (he ** observance of the police, regulations, and ordinances, iint'lhyj •• us otherwise may be provided ; to treat for, and contract, tol ** the same eftcct, peace> alliances, confederations, good frten^r 429 jurisdiction of this Court fn . sition a variety of aJumenJ? K^^^'^ ^^ ^^^« P^ " thai ther fnlfil .k '**' '""^ •"l^r into wi^h t!'^ ^ *'**"«« (be obedience, and the serWci n?J? ."^H^'^'e for the honoL? maintenance, and p.*seS ol^' »»^^''« «»««,!«& " Majesty among=,t thVm • at !•«.» ? ""* authority of h-'s ^i ;; frequent themf in allTafrtv freJ ^ ''?^'' "*»«"/♦. hlum "»d c*t,on. to tn.de and trX^^ZtT' ^^^^'^^^'^''on.comm.^^ "purpose to cau«» to t>e mad/?j ^"'^ .^"*^ PWceably. h^^ll nay be able to penetmte beyoi'S tb!*^'^*'"' ""'" »« fara.S ' and rive« which dischanreXmll. ''"•• »*•'»"« the land! "rence, m order to endeavour »'?'*^* '"^° **»« "ver St. llT ; J> .hiough the said eo" ;" L^hIT;- ^^^---^^way ui «jje East Indies." Here, ZJTl! '''"«^""» of China, and Md powew the most exten^iv? "^ **'* >'""' ^"nours, ,v J« W for all the objoct^lh ^^f/K '^ ''' ^-ernmLt'^f ^ peace and war. to spread the n^^ ^^""* attention, tonuiki ^ .ogof F«nce ovrr\%t„trr,hrr ^ «"^ ^uthoril^Jf •Jeiactly known to Chernselve,"^: "*! ??."P^» «^ which wem ««•<«; "d in the like mantr ^tablist*'''^ ' '*''^'^"* ^« ^ ^od»b.p. with other nation, and T.-*'' "'''"*^^'' ^^^^ «oS' wng in default Iheitof in L ""^^ P""ctJS. and on SS aave been granted unless b/«l ^^''•^'"'^^•on which would rJf ' r '*"*''' «"J rivet* »vhicb 1^ I* ''**' »'"«'*''^ «x ftowed great attention to evtry thing that is interesting on Ibis tublect. I flatter myself that hia wurk niu'^t be esteemed rerjr •troi^ authority. Mr Bouchette, speiiking of Upf)er Canada, says, page 590 of his topography, '* On the west and north west ** no limit* Lt*e bet-n assigned to it." 1 pray the particular at- tentioo of the Ojort to the expression " no limits have been as- '* signed to it, therefore it may lie sup[>o!ied to extend over the ** Tasl region that »pread«i towards the Pacific and tiie Northern ** Oceans. The separation bettveen it and the United States is ** an vague and ilt-defined, and the proli6c source of so manj '* disagreeoie&ts between the two powen, that it has lung called '* for the lerisaoo which is now about to be performed, In fuitil- ** meat of the fourth and fifth articles of the treaty of i)eace o*' ** 1815.'* Hcte we have the declaration of the surveyor-genersi of thi» prr«Tiiice, thai on the west and north we;!! i no limits have been asMcned to the country csliied Canada. Mr. Boucbette speaks of the proclamation of 1791. but this is his opinion. In caae there are no precise limits 6xed, we must enquire bow Iboite who were contemporaries, and who had a knovr ledge of the country, how the geographers of those dayn, understood the matter. Let us iook at the maps, ^nd we shall 6nd that tk whole mi the nver Winoipic is delineated as belonging to Cana* da. Wlmi Mr. Btfucbettc, speaking of this country in his To* .jtj ^^' 431 ouradvantaofc that m #j • he, were exposed to the .i^ '^'"'''^ "'«/ n>af endeavouring to secure the f!° °T?" '»"^? o^" '•^governments. I do L" T' ° ''^'''' ''^«P«'='- sl.§l.rest imputation on ,L J"""!^ '° 'l»'o/the *;»'»en. writers whose optiCtr'T'" ""^ ^«'-/ beeo; With so much abih°r h ""'^.'^o'-t* Imve !!:!^^ «» -ate that ^i^i^tt'.t-'^' '^"' "-^^ luem IS Com- " "»- spread Zil^l^JTr '" "'«"<' oveVrh''va''j1./''*' >"r certain, a, i. np^a^'^if »»'' «'« N„m..„ Je" 3^" »: Z.r !!''• ^'''''> "stir be'tlfe """''' "' '""'Pr^ SfJ^'» ""'""r.l.ofT L^-ll'-^ The Indian ,„!*: -r— '"c pnivince of Ut)i,pr r, •'^ *"® "^'ne of Cana ntories are fo Jh« „ .1 - ' '"^'^ ^«n.'i(]a. Th* 1 ,. "* ^a»a- I! ,4\ m ■>^i 432 •■** ■' I pleteljT finnecessarj, as we have positive acts of the British parliament to guide both the eiamina- tioo and decision of the question. But we do not diflfer at all with our learned friends as to the ex^ lent of territory fonnerlj claimed bj the French, and which undoubtedly came info the possession of the British Crown at the treaty ot Paris of 1763, but all we submit to the Court is, tkat the whole of the French possessions did not con- stitute Canada, but that the country known by the name of Canada, was ' much more circum- scribed in its extent than my learned friends have described (and I doubt not very accurately too) the old French possessions to have been. The argument of my learned friend who opened this question, is that in construing this and every other act of parliament we should proceed in a liberal and statesman-like manner to appiv its provisions. If we trace the movements of the britisn govern- ment, we shall see the impossibility of that con- struction which my learned friends contend for being admitted to be correct. In 1760 these co- lonies were conquered, and capitulated to the British forces. By the treaty of Paris in 1763 the whole of the conquest was finally ceded to h\i Majesty. In 1763 a part of this conquest wn« aban- «lk d an fmnmentof'the province J Tr"- ^°'" "'• .'t^ca. What ibe^roWrce of o'."'^" '" ^""^ i'liW was „ ell known 2^hJ^r ^"^^ "<"»?'*- <*« Quebec act, Ucfinon.*^^' *^°.'»"»'"'lj called *f Ad this act of ml ''T'".*''^' «"«' how V-ncsMge ,•; hoth l.oufe« of . '''?"''"' '» ''t*""'/. "I ">lenlion to dividl hi I **' jP«'-''ament, his roi-I .^provinces, i, waTet^^^^ 1 •'''"lid bo so divided «^w ^l ""* ••«'•'»«. «'«t h"''' ^ created fi.. . l*° P-^vinces '«'ons a«, correct L^.k*"^".!^ ^"'^'^ «>b«er. 5, occause, though the act of i 7W •• ''f4 M^' 434 is professedly an act to amend, not to repeal, that of 177« e".' •' country commonrv ™iu i "^ ''"""daries, » the " of Canida," is cotSve I ^"°'*'' ^^ '^e' naLo her that his Maiestr, 'I ■'',''' " "'"'•" 'Wsman- vince of Queber'^rh'f „t; ;° ^Jj t '^'' ""- q""7' "pon the subject riilJ ^' *"^ "•« only en- fr^^y «n.y of doS'^PT? 1? ">« to be^ "e that one sentence is to prech.rll 'P'^' "''«>"'«•• whole of the first clausi^of T. ^ •'* "'"^^ *« .»!cn ,0,. of his Majesty a^fd t ^^V" ''''''''' «''« clearly expressed. The act „f ,•?« """^'« " so i»ff the title of ,he 14th of , hi U'"' """•• ^cit^ reason ,vh.ch induced the lei^^.^^^'""' "^^'go^ "»« ac for the internal regula.ion^'t/r^. *° P'*" <''« prdvmccs, which his ^aiesfv h»i ^^ 1"'° ^^Pa'a'e al/ntcuiion of forminff,Ty L j^ "^'^'"^ ^.s roy. prownce of Quebec, faZly «''Z;°1 •''" ^'^ 'he^n '• IS in many rcsncct, .nT^i- . . ' '^e said act : condition L a;, ftt *" '^ f ^-S ;^nd that it was cxped"ent ""H '"I P^vince, f"rt 0.. p,.<.,i,i„„ should Ir I. "''T^7 "'« " good government and .L • " .'"^''e for th* hot said that it Un" '"'"^P"'''/ thereof." I, ;f F<.W3,o„ shonfd be made for it' *"'/ "'^ «"•'"«' "h-ch h&J, byproclamatLn h°f' °^*^^^ P'°^'"'<^^ f '^hose liiiiVs had been e.t!i''f"'"'' '" '763. Aen were by the act ofTh" 14,1 rl'" .'^''^' "'^J »»J called the Quebec ac^Mv f '^'T/""" J"«t most surely bo driven ♦„ T ?''"^'' '^^'«nd .T'r. When he sets u^ ! , ° *''* '««' stage of h''''--^«p.e;ao7;-rof;tr li!^ 436 Bt.f ^1 Mf.i ■•l' I ■■I :r 'Si > i si! nicnt that wc ^ei^ierallj most look for a clear expo* sitloD of its objects, but, whilst I admit the correct- ness of that posilion, 1 would also remind mj learned friend that there is a wide difference be* tween the enacting and declaratory clauses of a statute, and that we ought not to set aside the obvious meaning, and overturn the avowed inten- tion of an act of parliament, because of a loose expression in a declaratory cause. I can not think so meanly of the whole French nation as to sup* pose they ever claimed these territories and wil- dernesses, as belonging to, or forming a part of, Canada. As to the authorities my learned friend, who spoke second, has advanced, they can not, in a Court of law, be styled authorities. I have a very great respect for the abbe Raynal, but his work 18 merely speculative and philosophical, aud is no ge(^raphical authority upon a question of territory; the same remark will apply to Pinker- ton, we all esteem it as a very useful work, but it forms no geographical authority in a Court.— Upon the whole I contend with the Attornej-Ge« jieral that the former province of Quebec must be found in the provinces of Upper and Lower Ca- nada, and that no more can oe included in tbem than wliat was contained in that province, for the act by which they were erected into provinces mi nothing more but an act to divide it into two parts, hereafter to be designated Upper and Lower Ca- nada. Again, the learned gentlemen say, that all to the south and west of this line, from Teinisca- luing lake to Hudson ^s Bay, must be esteemed Canada, what then was the use of this act of the 43d of the king.^ The legislature, if my learned fnend^s argument was correct, were idly passing an act that could have no object. Instead of In()ianH|y|]Q|^ territories it is all Upper (Janada, according to myff^o ^^^ learaad irieod^s statement But it is a posit'iof/^ji^ ^ the tk Wed ^tofl of52< «fthe| >i. 437 comphtely untenable for a n./,-,- . ., nada e,.e„d, „„ farther sou.hTnJ V' ^'^ Drovrnw of Q„ehec did, Inv 1 V^'^ ">• Lower Canada to the n, r.l. I "*"■" '''«" doe. provinces are now to b^7o. "S^'.u''*''*- , '" ">« two .heseparation.oon,tUutedZ ' ''^'^^ '"'°™ .nd Vr Canada S'uo'J-'ThT «"■ ^i-'-bec, that part thereof only, S f J P""*' «'«i "f }he proWncc of Lowe^' c^;" ^^^. «.»<» weat of J«lirmed bjr ^our hon- Mr. Stuart.—! confesQ I u-i • . g^unds of confident Jht?.'" T'" '»'•/''<"'« "Ij. If supporting the r Z^.- ""^ ''""'ed friends "rtions entltfe thel ,o e^X'Th ''>' «'?fi''ent as. topale. they have cer.,^-. '"' '■**"'« «'»er an- «id» obtai/4 It! but lui?"'"' ? s:""** ^i Z *«t i» now before thS" ' "P? ""» l^e^tion *« have been submh.Jd S ,1"' ffi"^**"""""' Crown. If there was a„r A- .l''"^''" °f <<>* a««e»<.o„, it was the remaTk o/"^ 'i'"" ''«'»»'«'ed •he Solicitor Generairorl Irr 'r™*^ ^"'^' H b"* in that the learned f^l.f'^" l^'' "f'^^ » ""Slake, for, if my lear^/f""*?'"' '«'* W^e ' « chart, he woul/pLS .fc"''- "^'"'"-'-^ «° "«. whole Indian territories tcSTr"'"" '*"""■ «<" «"ption of them, lie bev^^'rf Tl''"'^. *° '^e de- , "o claim as that riven Vofj ^^^'"^'''y '^'''«''« »c(ofl79i. |f„,„ .£'!*" *°. Upper Canada by the •kole of those of the hTCVb ' r "'' '"'' ">« r ""ewrthofthat line^ TK? ""> .^^f anj. are h«»hi» "vasnotan act wiThouVaS"'? T'"" """"'an object, f t Hr^g Mm ,ht: , 1 .. .:•! • i^ r^ ■s ;•* ■ ■ (* ' I r.& t I'... 'i >^tM 438 an art to extend thf jurisdiction of the provincial Courts to the trit! Qiii^ punishment oi oHTenccs committed in the Indian territories and they are to be found in the immense and almost boundless 'wilderness to the north and west of the province of Up()er Canada, as established bj the net of 1791. The act of the 14th of the kin^ was obvj. ously tcibporary, tho |rroclamation of 1791, dclin* ing the boundaries of the two provinces, and ivhich, I must confess, I was extremely surpriBcd to hear so slightly spoken of by the Crown olticorR, was founded upon an act of a very diflfericnt do scription. The former was merely a temporary, whilst this was apcrmancnt, act. Mr. Justice Bowen.-^From what part of the ad of 1774, do yo{ conclude that it waB only a (em- porary act. I see w^ part of it that warrant} such a conclusion, except with reference to the last clause. JUr, Stuart. — The words there made u$e of are general, and, as I conceive, roust be understood to refer to- the whole of the act. I mean, liow^ ever, independently to contend that tlie time at which that act was passed, and the situation of England with reference to her American colonies, concur to shew that this act was merely temporary. But it is needless to refer to the act of 1774, as it does not bear upon the case, being completely done away by the broad and liberal proclamation of 1791. That proclamation created two provin- ces. I am surprised that the Crown ofHccrs should treat so lightly his Majesty's proclamation, it is certainly not the quarter from which wei should expect it. How was the province of Quebec cre-i ated.^ B^ proclamation ; and surely my learned i friends wdl allow as much weight to one of his Majesty's proclamations as to another. They will not deny the aame power to his Majesty iu 179)/ >■/ * uld divide and enlarge a province in the same way. This he has been pleased toido, and all we have to do with this expression of tho royal will and pleasure is, to adopt it, as the rulo by which we are to be governed, in: considering and deciding the cstion of jurisdiction no^v be- fore the. Court, . d wc contc^nd thatfiloaking" at thid proclamation, it is impossible to say that ihi^ ofienco, if committed at all, was committed within the jurisdiction of this Court, being pcrpef rated nt^ the Dalles^, which form a part of hia .Mn^^ty j: province of Upper Canada, as created Ity'tbi I royal proclamation ol 1791.' ui . ivit!!!;/:-' v) h being now past six o*clock\ the Cdmt was ad- jcurntd till Friday morning at eight o^dock^ji'h J\f.' • V '>t I Friday, 29th May, I Q]B. ^RESENT AS BEFCiS. 'f/ The Court having assembled, the jury were called mr and being all present, ) .,'1 Chief Justice SewelL— Tho Court are most di-i stinctly of opinion, on referring both to the act of: 1791 and that of 1774, that the argument on the defence must fail. What was the object of each !.^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I ■^ Kii 122 £ |£o 12.0 ■it Hiotographic Sciences Corporation 5? -^O <^.*^!^ n.25||l|.4 m6 ^ 6" » 23 WIST MAIN STREfT WIBSTER.N.Y. 145S0 (716) •72-4503 '^ '^%^^ ^ ^.V^ m" m '■f. 'If* n ^f,ps 440 in 1703. That of ) 791 was to separate ori£vide the province of Quebeo into two provineest to be denoniinated Upper and Lower Canada, and make each respectivelj ipdependent of the other, bj- giving a legislature to each respectively, but still retaining between or within toe two provinces, the same eitent of country^ the same space, as the one province contained. What is the act ? What is its object, its avowed object ? To repeat certain parts of the act of 1774; and what is the pavt ite^ealed ? it is that part of it which gives authdrity to the council of the province of Quebec, and what is the reason assigned for so doing ?^ Why,' that his Majesty had signified it to be his royal /will' and* plea^re to divide hk province of Quebec^ • TrO adsert that he intended by this, that the limil^ of the furovinoe ehould be extended hj the sepapation, appears! to mb repugnant to the |»laine^t :{»^nciple£t 6£ common isense, and, there- iomri cmnnoi assent to it.- Thie eftiort hiatory of the act tff^7dl is briefly this. The king signifies to parliament his royal inteiitioh of dividing kis province o^ Quebec, and he calls on the legislature to provide fdv this alt^ration.by granting an acta- dapted to the change. The legislature pass ao act providing for the due government of the two provinces, and under the authority of this act, and the royal proclamation, , the province of Quebec was accordingly divided, Hhe royal proclaraatioa being an exercise of sovereign authority, his Ma- jesty in that act, by and with the consent of his privy council, declared what shall be the line of sepai-fttion between Upper and Lower Canada, and how iniich of ihe lormer province of Quebec shdkll belong to the one, and how ranch to the o^her. The ob^ct p( the liet, arid the object of the royal prcctamation, are so clearly expressed* ;tiiftt W6 ciifi iiot> tor a moorent, doAt opoo tb^ !»■ 441 " p/easure to separate an^tt*"*. ">J^ ^l«A "Quebec." yC?^y:t'^iirr''r^^ ■ Jhe very same words T„,?v ?'*'*" ^^ Why Quebec, not to a^l ,V, ° tl ' ^^Provmce o^ awajr from it. Therefore iLT^^ ""*" '<» '"ke purview, could incJude o^'lv .S^'" ^"""'•' '•• '^e vince so divided, as warZ/ P?" "'^'^e P«>- Canada but it c^^d^ot e«lnTK"""*'> ^^'^r ""te which constituted th!r^ ^^""^ *''°«> «- otherwise it would certi ^'T °^ Q"«'^c, fnlarge «.,her than an ace , T-^" '"> »ct to >?g this opinion, I am S> «" '^ • " •'•'''^«'- ta»fnt, ibr we have ChEl "T'""*"" «"»- ""It upon the sublet, wd heM "T '*"'"*'• P«>-. us. Accordint to n.,r j '''*"'''7 ^on^T* with f Ae «yal PCatioljtr"'^^ "' *'»««* *l»t we consiJer the ar«?m ! ? ^*""'' *° »ay» concerned fo. the priso«lr tfo A^ "^ ^»«'««"e« great ability and iL^ t^f^P"^"*^^ *i»h mtem boundary fThe L"r/';'i,^"«e th« daB, « a line drawn due'^^or h ^^^ ^^'iP"' C"""- «lake Temiscaminff tin ?» .^'^T *« head of ".^ of Hudson^s la 'l'*Th^' "^ '^'»«'«"7 *'" remain with the ^urv f* ; T"*""^ «"" ^ct «r whether this place', ^e d5 " ^^ ''*'» »"> to fc« "'est of the ifne wh Jh We ''' '!3 '^^ " »''«' <* he western boundary of M.m "" ^*'^'*'* to b« ^Ppr Canada. Jf Set «!' *[''•'"*• ^> P'°^'»<* »f ."''»«. o^ to the eas of r "P"""" *<«»' 't i, !'«" the province of1rpi?r»'''^**'-» ''»«. *«« k '».»« ju.5sdiction ; but'^^^K^r*''' r** "'•» '"*" " ««to the west of tKA7/'%«^°P'n'on that ^' wanimous opiS^'I ?'.,' T ?'^''"SJoh ?»"e» are in the^nJ^^ T^" ' declare, that th« «^Kmi,,„f,JJ«^J^» tomtory. and not witht '"*«. bM cleartyTOSl^PP^\«?f Lower Ca. ' wtftm the junadiction of ^fa^ 'IX ilHi! 442 ■ J rif:l !pi ■>zi'y m. Court, by the act of the 4dd Kin^, cap 1 38,ntrhick extends our power to ^Mlie trial ana punishment ^^ of person guiltj^ of offences ^ithin certain parts ^ of Nortli America," • CHARGE TO THE JURY, BY Tire »'■»;.. » ■ ■ HONORABLE CHIEF JUSTICE SEWJELL. < , ■ . ■ t' . /" ■ , . . . . Messieurs les Jures.-Le prisonnier a la barre est accuse d'avoir tue et assassine Owen Keveny dans les territoires Sauvnges. La substance de ce long indictement est ceci, que Charles De Reinhkrd, le prisonnier, ct un nomme MainVille, (qui n^est pas ici,) I'a tue avec un fusil, ou un sabre, ou les deui, fBt que les autres, M'Lellaiiy Grant, Cadottc, ct Pesmarais, ont cte accomplices, c*est-a*di(^e qu'ils avoient, avant ou au terns du meurtre, y aide, ou conseille, mais a present c'cstseuiement avec De Reinhard que vous ayez a faire, L'inidictement comprcnd plusieurs comptes, ce qui est a Pordin- naire, parceque les ofiiciers. de la Couronne ne sa- yent pas toujours a quelle pairtie du cas ils ont rappprt, ou quelle preuve ils seront capable de pro- |duire« {^a charge est contenue genefalement dans les huit chefs, desquels je vous donnerai un abre- ge. La charge dans ]e premier chef estr que De Keinhard a tue Owen Keveny avec un sabre, et que les autres etpientilpj^esens, c'est-a^dirc, actu- ellement aidant au meuntre^ ou prete d^ avoir aid6, a'il avoit ete nepe^jsaire- Par ieisecond, il est accuse avec cette difference seuleoient, ou'iiest accuse de Tavoir tue av^c un fusily au lieu q'un sa< |»re, et les autres d'aydir 444 rcnce dans la loi, qu^en ce cas, \es deut sent 6- galement coupables. II n'est pas necessaire que les deux se soient aides a le tuer, s^ils 6toient pr6- sens, Tun et Tautrc, ils sont 6galetnent coupables. Le troisieme point que vous devez examiner est ceci. Si vous trouvez que le crime a ^te commis, cVst a vous de dire s^il a ^t^ expliqu^ par aucun moyen qui puisse diminuer le crime, et le reduire au degre d^homicide. Sur ce point c'est mon de- voir de vous dire, >que si vous trouvez qn'il a ete tue de la maniere dit dans rindictement, il n^y a point de doute que ie prisonnier est coupable de meurtre, parceque les circonstances de son cas, nuivant le t^moignage que vous avez entendu, m vous laisseroient pas le pouvoir de diminuer I9 crime, aucune excuse ni aucune necessity de IV voir commis s'j trouvant. Done, vous n^avez qu9 les deux premieres questions a considerer; pre- mierement, si vraiement Keveny est mort, et se- condement, s^il a €t6 tue par le prisonnier, ou s^il a et£ iu^ par Matnville du savoir deDe Reinhard, y ^tant present, et y aidant. Voilel, messieurs, les questions. ' Avant d^expliquer le temoignage, il sera nec^s- 9aire de prendre connoissance de Pautorit^ par la- quelle la Coura le droit dejugerle proces du pri- sonnier. Par le statut de 1803, pouvoir a ete donn^ a la Cour du Haut Canada, et aux Cours du Bas Canada de juger et punir les personnes qui ont commis des crimes dans les territoires Sau- vages, et le statut explique bien ce qu^il a enteadu par les territoires Sauvages : il dit, *' Vu que des *^ crimes et offenses ont 6te commis dans les terri- ." toires Sauvages et autres parties de I'Ameriquc, ^ hors des limites des provinces du Haut ou du ^ Bas Canada, ou d'aucune d^eux, ou de la juris- " diction d*aucune Cour 6tablie dans ces provin- ** ces, ou hors des limitts d^aucun gouyernoieptci- ont fc- ire que nt pr6- ipables. liner est coonmisf tr aucun reduire roon de- ii'il a ete iipable de son jcas, itendu, ne iininuer \e aU^delV n'avez qw lerer; pre- Dort, el se- iiier, ous\l ReinhaTUi jssieurs, les 44d (( vil des Etats Unis de rAm^riquc, et done ne «( soot pas du ressort d^aucune jurisdiction quelcon* «« que, et que par cette raison des crimes et of^ ti ienses grands ont rest^s, et pouvoient encore i «^ l^avenir, rester, sans punition et grandement s'au* «t ffinenter. Pour y remedier, qu^il plaise a votre «^ Majeste, d'ordonner, et qu^il soit ordonne par *^ Sa tres excellente MajestI Rojale, par et aveff *^ le consentcment et avis des Seigneurs spirituelt ^^ et tempore! s, et des Communs, en ce parlement (^ present assembles, et par Tautorit^ des memesi «( que depuis et apres la passation de cet acte, *( toutes les offenses commises dans les territoires *« Sauvages, ou les parties de FAmerique bors des (( limites d'aucune des dites provinces du Haut oit «^ Bas Canada, ou d'aucun gouvernment civil des *^ Etats Unis de I'Amerique, seront, et seront esti- '^ m^es d^ctre des offenses de la meme nature, et se« '^ ront jugees de la meme manicre, et sujettes a la " meme punition que si elles avoient ete coitimises ^^ dans la province de Haut ou Bas Canada/' Par consequent il est absolument nccessaire de savoir si Fendroit ou la mort est arrivee, ou le meurtre a ete commis, est bors des limites de Haut ou Bas Canada, ou des Etats Unis de TAm^rique, parce- que, s^il j est, nous avons le pouvoir de juger le prisonnier, et an contraire, s il n'y est pas, nous n'avons pas le droit de le juger. La premiere question done que avez vous a determiner sera o^ est ce que Keveny a trouve sa mort? Non pas dans la province du Bas Canada assurement. II y a deux autres endroits qui demandent voire con- sideration. Premierement le Haut Canada. La limite Quest du Haut Canada est une ligne tir6e vrai nord de la jonction des rivieres Ohio et Mis- sissippi, dans la latitude de 37° 10' nord, et la longitude de 88' 50' ouest. II faut que je vous dise que c'est a nous a determiner la loi, et a vous 446 tux mi mi ■ fi. mm''' it de jiigei* des faits, et suivant la loi nous avons ^h- tendu les avocats sur ce sujet hier, et nous avons declare aujourd'hui aue la limrte ouest du Haut Canada est une telle ligne, et si les Dalles se trou- vent a Test d'uhe telle ligne; elles sent dans la pro- vince du Haut Canada, et cons^uemmcnt hors de notre jurisdiction. Regardons a present aux tc- inoignages. Le preiiiier temoin de la part de la Couronne est monsieur Sax. II a dit, ^* je connois '^ les limites de la province de Haut Canada dV ♦*pres le plan."(**) ''The mouth of tho river *^) CrerUlemen of the Jury. The prisoner at the bar is accused of having killeij and tiiurdered Owen Keveny in the, Indian territories. The substance of this long indictment is this, that Charles de Rein- hard^ the prisoner, and one named Main ville, (who is not here) killed him with a gun, or a sword, or both, and that the others, M'Lellan, Grant, Cadotte, and DeSmarais, were accomplices, that is to say, that they did, before dr at the time of the mur- der, aid in or advise (he dame, but at present it is only with Dc Reinhard that you have to do^. The indictipent comprehends several counts, which is usual, because the officers of the Crown do not always know to what part of the case they apply, or what proof they are able to produce. The charge is contained, gene- rally, in the eight counts, of which I will give you an abstract. The charge in the first count is, that De Reinhard killed Owen Keveny, with a sword, and that the others were present, (hat is to say, actually assisting in the murder, or ready to have assisted^ if it had been necessary. By the second, h'cl is ac- cused, with this difference only, that be is acctised of haring killed bim with a gun, instead of a sword, and the others of having been present as in the first count. By the third, he is accused of having killed him, not with a gun nor with a sword alone, but with both together. The fourth count says, that on6 named Mainvitle killed him with a gun, the others being pre- sent, aiding and assisting him. The fifth count ai^ain says, that De Reinhard killed him with a sword, and that M'Lellan, Grant, Cadotte, and Desmarais, were a6c6mplices before and ailier thi fact. The sixth count accuses him' of having killed Keveny- with a sword, but,, Uke the last, does not say, that M'L^Uan, Grant, Cadotte, and Desmarais, were present, but that they previousljr counselled the murder, and that, after it was committed, they assisted the prisoner to escape. The seventh couint again say?) 447 ins 6n- avons 1 Haut se trou- 3 \a pro- hors de : aux te- irt de la e conno'is liada d'a- IhG nver having li»"cJ •uorics. The jrles de He'"* hat the olUfcis, B accomplices, me of the jnur- ;v comvr*^hc»<^* rs of U»e Crowa anp\y,orwhat .ontained,ftene- ,ou an abstract. ^,d kUled O^efi re present, tnai ready to bave cond» ^^ 'S ac- cused of hating ' the third, he i Int says, thai one K'^'t/sCt M^eWan, Grant, fore and atterthfe Sl'UWan, Gta»^. .committed,*^ count again ^1 ' *« Ohio, that is, where it strikes the baoks of the' «^ Mississippi, and discharges itself into the Mis-« ** sissippi, IS in 37^ 10' north latitude, and longi- « tude, 88® 50' ouest de Greenwich. Une ligne M tiree vrai nord de la, passera par le lac Supe- that De Reiohard killed him both with a sword and gun« and that these same four pctiions were accomplices before and after the fact. The eighth and last count accuses Mainville of having killed him with a gun, and says that De Reinhard was present, and assisting to kill him, and that M'Lcllan, Grant, Cadotte, and Desmarats, were not present when the murder was committed, but that they were accessaries before and after the fact. These, gentlemen, are all (he counts of this indictment. To this in- dictment the prisoner has pleaded that he is nowise guilty. The officers of the Crown say that he is guilty. It is your duty, gentlemen, to declare, upon your oaths, whether the prisoner is guilty or not. Upon this question, there are three points that require, and particularly deserve your attention. The first point is to know whether Keveny was really killed.- The second is to know whether he was killed by the hands of De Reinhard or of Mainville, and, if you find that he was killed by Mainville, to knjw whether De Reinhard was present, assisting him to fiuiah him. It is necessary I sr-hould inform you,- as the law makes no distinction, that in that case, both are e- qually guilty. It is not necessary that both shall have helped each other to kill him, if they were present, the one and the ether are equally guilty. The third point which you must examine is^this. If you find that the crime has been committed, it is for you to say, whether it has been explained by any circumstanr^- that may diminish the crime, and reduce it to the degree of i.or.iiicide. Upon this point it is my duty to tell you, that if you find that he was kil- led in the manner laid in the indictment, there is no doubt but the prisoner is guilty of murder, because the circumstances of his case, according to the evidence which you have heard, would not leave you the choice of diminishing the crime, there not appearing any excuse or any necessity for having committed if. You have, therefore, only the two first questions to consi* der, first, whether' Keveny is really dead, and secondly, whe- ther he was killed by the prisoner, or whether he was killed by Mainville, with the knowledge of the prisoner, he being present/ aiding and assisting. These, gentlemen, are. the (|uestions. Before reciting the evidence, it will be necessary to take no- tice of the authority by which the Court possesses the right of I judging the prisoner's case. By the statute of 1803, power was i':1c 448 '. *> I i.rJ V u ' -S''";, "Ml ^ rietir, et laissera le Fort William a trois quarts "^ d'uii degi*e a l^ouest. Le lac Winnipic est entre M leg 50^* et dl"**" degr^s de latitude nord. Le ^ Portage des Rats est dans la latitude de 49' 45' *' nord, et la loogitude de 94° 6' ouest. Toute given to the Court of Upper Cannda, and to the Courts of Lower Canada, to try and punifch those persons who had coni' mitted crimes in the Indian territories, and the statute clearly •iplains what wat meant by the Indian territories : it says, ** Whereas crimes and offences have been committed in the In* '* dian territories, and other parts of America, not within the ** limits of the provinces of Upp^ r or Lower Canada, or either ** of them, or of the jurisdiction of any of the Courts established ** in those provinces, or within the limits of any civil government ** of the United States of America, and are therefore not cog> ** nizaMe by any jurisdiction whatever, and by reason thereof ** great crimes and offences have gone, and may hereafter go, ** unpunished, and greatly increase. For remedy whereof, may *' it please your Majesty, that it may be enacted, and be it ** enacted by the King*s most excellent Majesty, by and wilb ^ the consent and advice of the Lords spiritual and temporal ** and Commons, in thi;* present parliament assembled, and by '* the aothMrity of the same, that from and after the passing of " this act, all offences committed within any of the Indian ter- ** ritories, or parts of America, not within the limits of either of ** the said provinces of Upper or Lower Canada, or of any civil '* government of the United States of America, shall be, and ** be deemed to he, offences of the same nature, and sbalt be ** tried in the same manner, and subject to the same punishmeot, ** as if the same bad been committed within the province of ** Low«r or Upper Canada.*' It is in conse<)uence absoluteljr necessary to know whether the place where the death occurred, tvhere the murder was committed, is without the limits of Upp^r or Lower Canada, or of the United States of America, for if it is without those limits we have the power of trying the prisoner, and on the contrary, if it is not so, then we have not the right of trying him. The 6rst question therefore for you to determine will be, where was it that Keveny met his death ? Not in the province of Lower Canada certainly. There are two other quarters which require your consideration. First, Upper Ca- nada. The western boundary of Upper Canada is a line drawn due north from the junction of the rivers Ohio and Minsissiippii in the latitude of 37** l(f north, and 88*> bif west longitude - I am bound to tell you that it is we who are to decfd** upon the laWj and you who are to judge of the facts, and^ accordiog tc quarts i entrc d. Le 19* 45' Toute Court* oC ) had com* ule clearly b: it says» d in the In- t witWn Ibe ja, oT eitl«» Is established \ government .fore not cog- eason tlieieol hereafter go, thereof, may led, and be _.t by and with land temporal .roblcd, and by the pa^«ng ** the Indian ter- nitsofeitbeio , or of any c»v>J shall be, an* e, and sMl be tme punisbment, > the ptovince ol uenceabflolulely » death occurred, » Wmits of Upf ' America. fo^iJ rine the pi««?*'; ^"1 not the ngbt youtodeteim.^ i%h-? lectin in* . »« t«» *' ' la !» » '■»'.''"!" decid.^ »?»'''; and, »«»'*"* '449 M la riviere Winnipic est au moins cinq c|egr6, k (i Fouest \e la ligne tir^e vrai nord de Tembou- •t chure de TOhio/' Done i1 est mapifeste qu^Q endroit dans la ionffitude de 94* 6^ ouest se trouble bien k Pouest de la limite du Haut Canada. II j a un autre t^inoin, monsieur Joseph Bouchette, qui ditla mome chose. *^ La limite de la ci-devant province de »i Quebec est une ligne tiree de Pembouchure de ^i la riviere Ohio au nei'd, jusqu^aux limites du *^ territoire de la Compagnie de la Baied^Hudson. «« La latitude de cette embouchure est de 37* 10' «*nord, et la longitude, 88 58' ouest de Green- *^ wich. L^endroit appelle les Dalles est sur la ri- *^ riere Winnipic, quatre lieues au de 14, et au nord ^ du Portage des Rats.'*: Mais cela appartient a une autre partie du t^moignage. Vous voyez que monsieur bouchette et monsieur Sax s^accordent entierement. II y avoit d^autre temoignage sur ce point, mais peut-etre vous n'avez pas de doute que les Dalles sorit a TOuest de la ligne de laquelle cei messieurs, ont parU. Si vous avec aucune doute je vous lirai d'autre evidence. Mr. LevallS^ a yuror.— Non, monsieur, ee n'estf pasnecessaire.(*^) ^ \h I law, we have heard the arguments of counsel on the subject yesterday, and to day, we decided that the western limit of Upper Canada is such a linie, and if the Dalles are to the east of such a line, they are in the province of Upper Canada, and consequently not w*thin our jurisdiction. Let us riow look at the evidence. The first witness on the part of the Crown is Mr. Sax. He said, ** I am acquainted with the boiirtdary of the province of Upper Canada, according to the map. . (*^) *< A line drawn due north from there will cross Lake Su* " perior, and will leave Fort William three quarters of » degree " to the westwat'd. Lake Winnipic is between the 50th and! "61st degrees of north latitude. Thel*ortage des Rats is in " the latitude of iS^ 45' north, and longitude 94° & west.— ^ **Th6 whole of the River Winnipic is at least five degrees to " the west of the line drawn due north from the mouth of the *' Ohio." It i$ td^iefote manifbst that a spot which «i ia Die PF 450 ,;^i fi Chirf Justice SeweiL-AJne autre natiere pour yow a considerer est si les Dalles soul au nurd d^une ligne entre Ics Etats Unis et la province du Haut Canada. (Te^i de consequence d'etre ^tabli, par- ceque si Tendroit est au nord d^une telle ligne, il est viritablement dans le territoire Sauvage, ct s^il est au sud d'une telle liime c'est dans les fltats U- "JlK ■:■*:?" est comme suit : ** L^endroit qu'on appelc les Dalles ^ est sur la riviere Winnipic, quatre lieues au de- *^ \k et au nord du Porta^ des Rats, et du Lac *^ des Bois, apres le plan a^Arrowsmith, et dans la << latitude de 49* 51' nord, et la longitude de 94* ^' 10' ouest/* Voila Je temoiniase le plus clair; mais je desire maintenant d^ipliquer le temoi- gnage de Mr. Coltman. II dit, ^ je ne crois pas ** qu'aucune partie de la riviere Winnipic se trou- *^ vera au sua d'une ligne courant ouest du Lac '^ des Bois, ou au moins une tres petite partie, et ** tres certainement une li^e courant du Lac des ^ Bois a la riviere Mississippi laissera toute la ri- ^' viere Winnipic av nord-ouest d'une telle ligne. longitude of 94*^ 6' west most be much to the westward of the boundary of Upper Canada. There is another witness, Mr.j Jaceph Bouchette, Who sajs the same thii^. *' The boundary " of the late province of Qjtiebec is aline drawn from tbe moutbl ** of the river Ohio, to the north, unto the boundary of tbe ter- j ** ritory of the Hudson^s Bay Company. The latitude of tbtsl «< mouth is 37<> ICT north, and the longitude, 88<^ 58' westl " from Greenwich. The place called the Dalles is upon tbej *< river Winnipic, four leagues beyond, and to the northward o^ ** Portage des Rats." But that beloi^s to anoth i^strt of fii« evidence. You see that Mr. Bouchette and Mr. Sax entireijj agree. There was some other evidence to this point, but perj haps you have no doubt of the Dalles being to the westward (f the line of which these gentlemen spdke. If you have any dom I will read other evidence to you. . JIf r. L. V. — No, sir, it is not necessary^ 461 prcB monsieur Coltman dit la «.-^ "u "•"""e a- Ue monsieur Colfman diL^lT ''""'«• ?» ««>»■ n.da et au nord des Eta a Un? T ''" **'"'* <''«- t'est dan$ fe pays au'on «^ f j •" ''"""^quence '803. ies terS.o7«riaVvS: " '^T '! *'•«•" <«• jlloM regarder le timo,ga^'«,A P'J?"*^ ""M plaint pas des officiere de 1!^ "" '* ^'i"' «•«> «e «fcvoir, et I'ont bien fait o. • "^""f «"" ^ait Jeur »je long, tr^s long, lei Liu T"^"^ '" ^moignag. •feien. 3e la Coufin^t^l^M " """ P*"' 1^« «nl*8confessionsdu So"n Ir 1 S"" '?' '"' *«"*- «MW circonstances au'T^-? ''''"^'•'"ees par plu. *ce dessein, sa Sa^tfo-f tt^""' ''«^"««W l-^. Jtsa confession tecrau'r>-l.'l"'"' ''«^«t f Mainville a «cS |^ ir?«^'''T»' f «««« Jweoj etoit t„6 ; Td JlaS'"^ '^T ,'T«"* f«l tipare, que le d^.!* A ?..1"*"'^ 'e lutiu ,W«. pareequec^t^Vf" "f""'.'^ '"•' appar- •^Bfime terns Vait la s"Jl',; """' . °"""' *!"''' Wmj lemeilleur pour LT V "r*"!"* *"« ««» Kde '» Cou^.nne.'^S^ ,"'• rt'li'" '''•™* ''« '* r *»• J'ai une defeole I ^« ". P™"™'*'- H K Ma defense est que'^'itn ''*'^"'* •"^•- •* k« raonlinaire,quen,aconf» • *j''? P"7« ^^it *"* h 'e pays en ffi'^tTaJfr^ d '"^ """'• '^M^-rf. I !'fl f > ^ ^'W^rwm 'Hy~~ ^i I *52 bt mes eonfessions 6toient les effetsde la crainte, et extorqu6es par les circoostances, et les ev^he- ioieiits qui m^environnoient. Que ces confessions he contiennent pas les faits, mais qu'elles ont ete exigees par les circonstances pour mettre ma vie en surete. 11 a attaque la cr6dibitite des t^moini de la part de la Couronne, particulierement le t^. moignage du capitaine D^Orsonnens, de Faye, et de La Pointe. C^est a vous, messiours, k juger. Les offieiers de la Couronne disent que les confes- 6ions du prisonnier sont confirmees par ces hom- ines, Faye et La Pointe, et le prisonnier dit qu'ii a detruit leur t^moignage en pr^sentant a la Cour quMls s^etoient contraai|s. C'est a vous, messieurs^ ^ juger et non a moi. ^Mon savant confrere, Mr. Justice Bowen, vous lira le temoignage, et vous y donnerez Fattention qu^il m^rite, afin que vous le compreniez bien, et que vos esprits soient satisfaits, et que vous puiasiez connoitre si messieurs les of- fieiers de la Couronne ou le prisonnier ont ^tabli leur allegation. Apres que vous avez entendu le temoignage, je me propose de vOus faire observer quelques particularites dans ce temoignage, qui me paroissent n|cessaires pour votre eclaircissement, tant a regard du prisonnier qu'a Pegard de la Couronne-C •) The evidence was then read by Mr, Justice BoweS' ^1 .*■ /»•) Another matter for your consideration is, whether the. Dalles are to the north of a line Jbetween the (Jaited States, and the province of Upper Canada. It is of importance to ascerlain tbi«, because if the 5pot is to the north of such a line, it is inj truth in the Indian territory, and if it is to the sooth ofwch a| line, it \» in the United States, and consequently not witbin ourj jurisdiction. On this point the evidence is equally as stronfrr on the other Mr. Bouchette's evidence is as foJlows :— " Th " place which is called the. Dalles is upon the river WionipiQ •* four leagues beyond and to the north of Portage des Rats, ana <• of the Lake of the W(»ods, according to Arrowsmith's noap» 4 ••'latitude 49» 61* iiorth,.anil longitude 94» 10' west." TM >rainte, cvfehe- fesftions ODt ete I ma vie t^moini jnt le t4- Faye, ct ^ juger. ^ comes- ces hom- dit qu'ii a a la Cour messieurs, afrere, Mr. , ct vous y aue V0U8 le nt satisfaitst ieurs les ot; .V ont 6tabh r entendu le .ire observer Lge^quin*^ aircisscinent, egard de » Justice B(^' ,lg,tvhctbeTtbcl aited SUtes,atA follows-— .., uL river Wi""?'! lo«smilhH»»?J 10' vf««. 1 453 ChirfJ^^^f StwelL — 'Avant qu^ je fasse m^ji remarques sur le t^moignage que vous avez en- core entendu, c^est mon devoir de vous dire qui^ T0U8 ne dicsez pas regler vos opinions sur ce quo je vous dis au moindre degre, mais qu'il faut don* evidence is most distinct ; but I wish now to explain the evidenc* of Mr. Cpltoian. He says, *\I do not believe that any wkt\ ot " the river Winnipic will be found to be fo the southwara of a ** line running west froni the Lake of the Woods, or at least on- *< ly a very small part, and most certainly a line running from "the Lake of the Woods ta4he river Mississippi, ,wiU leave th^ <> whole of the river Wii^nipic to the north-west of such a line. " I twice passed the place called the Dalle^, which is part of •'•the river Winnipic. T^ey are from five to six leagues di^ « stant from Portage des Rats, and from the Xake of the Woods^ «Vto the fn9rth tending a littlf^^^ towards ,; the west." Mr. Gale, wi)0 was examined after Mr Coitman, says^ the same thing, and confirms Mr. Coitman in every particular. This is all the evi- dence With respect to our jurisdiction, and to the locality of the Dalles, and it proves that the Dalles lie to the west of the boun- 4aiy of Upper Canada, and to the north of the United IStates. — Coqsequently it is in the country designated in the &ct of 1803 as Indian territories. Now let us look at the evidence as to the facts of the case. The evidence is very long^ but thie Court do«s not complain of the officers of the Crown, nor of the coun- sel for the prisoner, both have done their duty, and hai^e done it well. Although tlie evidence is long, very long, the facts oC the case are but few. The Crown officers rest their (iase upon the various confessions of the prisoner, confirriM^d by several oir- OQOistances, which, it is said, prove that, it was his intention to l^iii him, and by facts occurring in the execution of that inten- tion; bis public declaration that he had killed him, and his tacit confession th.at he had done it at the time when Mainville related the mode in which Kevcny had be^n killed ; his declaration ^n the things \rere divjded, that the right to have the bebt bebnged to him, because it was he who had killed him, and not only that he uttered these words,- but that at the same time, he made the division between them, keeping the best for him- self. This is the case on the part of the Crown. On the part of the prisoner it is alleged. I have a defence to make. My defence is this. It is not an ordinary defence- My defence >r ■that the situation of the country was so extraordinary, tbat m confession must be void. That the country above was in a state of warfare, and my confessions were the effects of terror, and ^torted by the circumstances and the occurrences by which I s; { 'it U'¥% •'^'■•*iifi*M 'I? ' I'll ^!iM 'i;,: Trfcj " 'ffl'sw^ \m 1 \ fmrn ^' 454 ■ ■• '.y iieiv6^ atitention a la quesfioh criminelle pour savoir s*il est coupable ou lionl Je ruus rappelle Encore que c'est a vous de^uger de ]a credibility des teoDoins, et je dois auasi faire une autte remar- que, savoir que c^est aussi ^ vous de juger de la situation du pays, des circonstances des confes- sions, et g^neralement de la credibility de tout le temoignage. Le fondemeiit de P^vidence des of- ficiers de la Couronne est les confessions du pri- sonnier, confirmees par d*autres temoins, qu^il a tue Keveny. Cette confirtnation, les ofBoiers de la Couronne disent qu'on produit dans T^vidence de Faye de sa conduite au temb quails ont rencon- tre la brigade 4le la riviere Cygne^ et que les gens de cescanots ont dit aux gens cui canotde monsieur M'Lellan, que Keveny etoit en haut des Dalles, et dans Texpression du prisonnier, ^^ qu^il n'auroit pas ^' soin, ou qu'il en auroit bien soin, que c'etoit lui " qui I'aybit pris prisonnier:" maig en mSme terns vous voiis rappellerez que Faye a dit qu'il " ne ^' pouvoit pas dire que. le prisonuier Ta dU eu noe^ was surrounded, ; That these confessions do not relate real facts, but were made .under the pressure of circumstances, in order to put my life insarely. He has attacked the credibility of the wit- nesses on the part of the Crown, particulnrly the testimony of captain D'Orsonnens, of Faye, and of La E^ointe. It is for yuu, gentlemen, to judge. The officers of the Crown say, that the confessions of' the prisoner are confirmed by these men, Faje and La Fointe, an4 the prisoner say« that he has destroyed their testimony, in shewing to the Court that they Contradicted them- selves- It is for you, gentlemen, to judge, and not for me. — My learned brother, Mr. Justice Bowen, will read to you the evidence, and yqii Will give that attention to it which it deserve$>, in cffder that you may thoroughly understand H, and that your jnds may be satisiied, and that you may discern whether the icers of the Crown or the prisoner have established their affir- mation. Afler you have heard the evidence, I propose to my- self Iq bring to your notice some particulars in the evidence, which seero to me to require it for your correct judgment, both with regard to the priioner, and with regard to the Ci'owii. 455 <» nace.** lb dkent aussi ifae La Pointf^ raconte la m^me conversation, mais avec une addition ires importante. II a jare qu'au terns de cette conver- sation il a entendu De Reinhard dire, ^^ J'en aural <^ bibn soHi, c'est moi qui le tuera*" Une autre arconstanoe de soup^on (disent les ofiiciers de la Couronne,) c^at qu'il etoit envoye avec ciqq bois brul6s et ce; fait a ^te confirme paries t^moms du prisonnion ' Une autre partje du tcmoigqage con-? tre le prisonnier, est la conversation entre 1^ gena du canot de MXellan, au tens qu'oii entendpit lo^ eoup de fusil sur Teau, (dqquel je me propose de, parler encore.) La Pointe dit qii*a^ tems, q,uei- ^u^un des bois brules a cri^, ^^ QK les chiensl ils *^ Font tue,^' et qu^^ ce teins. )f^ prisofM^ier De Rein« hard etoit avec Keveny. Messieurs les oflicier? de laCouronpe disent que cette expression faiteau 11107; meat indique I'attente de to* bht fait du pnsonnier Keveny,'' etil dit que Tun des trois qui etoient dans le canot, mais il lie dijt pas lequel, a jr^pondu : '^ il est biea ou neus Tavons " mis*" La f^ointe a doiin^ une relation particu^ liere par laqisdle il dit> que Mainville a raconte la linani^sre dabs laqiielle le meurtre a et^ commis, et la resistance qiie Kereny a fait, et tous les deut fi^acf^imieht en disant, ^' qu^a ce terns De Reinhard *' 6toit bien pr6che,'mais qu'il n'a rien dit." Faye et La Pointe is^accordent encore en representant ^ quails ftirent d^fendus par le prisonnier de parler ^ de ce meurtre j et qu^on leur a dit, que si on par- •* loit du meurtre, qu'ils sferoient punis." Ses con- fessions faites a cinq pei^onnes, sont la pliis forte Evidence cont re le prisonnier. II a fait la meme confession aux cinq personnes, 0t nous avons, (a- pres rargument des conseils,) d^clar^ que nous ne Jes pouvons pas rejetter. ' Premlerement il I'a faite au capitaine DM!)rson^ens ; apres a monsieur Nolin, quand ils se sont ptiomenes ensemble. A- lors il y a sa confession a nion^ieur Vitchie, autre- fois %on camariide, dan$ f^qtiielteil a raconte toutes lies circonstances de la i^brt die Keveny, avec utie autre, savoir, *^ qu^il avoit ^tout avoue au capitine ^ D^Orsonnens, et quit dipit faire autant a Milord *^ Selkirk, esp^rant d^etre recu temoin deia part ^ de la Couronne," mais il n a pas dit qu'il a eu aucime conYenation avec le capitaine D'OrsonBens BW.'M 457. Ires.'' ;ho6e. quel- avdft : alors 5i cette* a qu'ils |ue Tun dit pas Tavons parlicu^ 2ont6 la nmis, et ed deux leinhard ' Faye i^sentant le parler i on par- ses con- Ids forte la meme irons, (a- i nous ne nt il I'a lonsieur Ible. A- I'le, autre- it6 tontes tvec utie Icapit'ine ^ Milord le la part ^u'il a ea irsonaepf sur cette etp^rance. Ensuite nous le trouvons dans les mains ^e Milord Selkirk, avec sa declara- tion, faite de sa propre main, dans son ecriture propre. Ces circonstances vouct considerez sans doute bien fortes, es'^s il y a encore uoe antre, la- quelle, si elle n^«stipas plus forte que les autres, est egalement liigne de, remarque. Je fais allu- sion a sa declaration a monsieur M'Donell. II con)men9oit uiie conversation lui-meme avec mon- sieur M'Donell, et i^ia dit ^^ qu'il etoit prisonnier, ^^ et q»^il avoit tue Un monsieur de la Compagnie; *^ de la fiaie d!Hudson,'* et disoit, ou ajoutoit« /^ Vouiez vous que je vous le nomme ?^' et quand monsieur M^Donell Va dit qu*oui ; alops il nomma Keveny. > C'est une etrconstaqce^ tres extraordi- naire de soi-meme, mais monsieur M^Donell a dil qu^il parloit de Keveny avec regret, et penitence poar ce qu^il avoit fait. La loi considere toujours- uQ acte de la conscience comme une circonstancc d'une description la plus forte. Si une confession est extorquee par Pesperance, ou par la cralnte^ elie n'est pas evidence, mais dans cette confession, faite a-monsieur M'Donell, je pense que vous ver- rez la force de sa conscience. II a donn6 toutes les circonstances particulieres, et monsieur M'Donell ajoute,/> le prisonnier, Pe Reinbard, m'a paru tres *' penitent pour ce qu'il avoit fait, et confessoit ^ qu'il avoit tort, mais qu*il avoit ete induit en er- *' reur par Tignorance." Je n'ai pas voulu expri- mer auCune opinion, excepte celle-ci. La pre- miere fois que les tep»oins disent que le prisonnier a confess^, il n'etoit pa$;SOUs Tinfluence de la peur, ni dans Tattente de bonheur. C^etoit au moment que le petit. canot se rendit a terre, apres que le meurtre est charge d'avoir ete com mis. Si vous a- yez croyance que sa seconde confession a ete in- fluee par les circonstances de la situation dc ce pays ; si vous considerez qu^au terns de son recit '4:5 ! .- :i-,l,i; ■Mt »i-'.F II M'S 438 i yvA lie- i i. ■•7 <■■ IV.S«.^ au capitaiit6 D*Orsbninens il n^^toit pas libre, done v6u8 la rejetterez ; c'est a votid de peser si son es- prit Q^^toit pas Hbre et si vous etes inflaes k Ctoke que c'est aitifiti done rejettez-la. De la nart que part d^ la Couronne il lii'a parb, itiesfiieurs, que je vous devois ces remarques 9ur r^Vijdeiice. Ses confes- sions ont^^t6 faite^ fr^tlem'ment. ^Il en a faite au (iapitaine tt^Orsonnens ; ce qU' il a dit au capitaine D^Ot^onnen^,1k Dieme chose a4-il dit a monsieur Nblin; a Vitchie il a encore dk la meme chose; a monsieur M'Donell ii a dit la meme chose; et assurement au Comte de Selkirk- il a dit la meme chose*' ■ '-i^'-i^iy-' ■ ■'■' '"'■: De la part du 'prisbnnidr c^dst mon devoir dt you^^Iire qu^il a r^i!issi d^etablir un etat dWaires fr^s' extraordinaire. S^il n^a pas prouT^ qu^une guerre ouverte cxistoit dans ce pays, une guerre connue k la loi, il a prouve un etat de guerre actn- eile.-^Les differences qui se trouvent entre les te« moignages de Faye et de La Pointe dans ce pro< ces, et en outre la difl^rence entre I'evidence de Faye dans les deux proces ont et6 egalement prouvees. Faye a dit, (dans ce proces,) " De '*^einhard ne m^a pas dit personnellement qu^il a- " voit tu6 Kevcny." Dans Tautre il a dit le con- traire. il y a aussi une difilerence apparente entre I'evidence de La Pointe dans Tun et Pautre proces. JI a dit dans Tun, quand il a entendu le premier coiip de fu«il, qu'il ^toit a terre, et dans I'autre. qu'il etoit sur I'eau. Je parle a present de cette parfie de son t^mbignage dans lequel H dit qu'un Dois brule a fait Texckmati^n, '^ Oh les chiens ! " lis ont tue Je prisonnier.'*^ 11 m'af paru qu'il y a une contradiction; maid c'est a vous de iuger, et je ne donne point d'opinion — je veufi lirai son evi- dence dans I'autre proces dans la jCour du Banc du Roi, comme elle a ete proc!uite par lejuge Per- rault : itant transquestidnn^ il a dit, "quand nous voir dt affaires qu'une guerre re acto- e les te* I ce pro- lence de rakmcnt itqu'ila- t le con- ite entre [e proces. premier IS rautre. 4e cette idit (ja'»i« ^ cbiensl qii'il y a kjuger, et ' I son evi- du Banc I juge Pe^' ,andno«s 459 <« avons entehdu le coup de fusil, nous ^tlons cftm* <* p^s, le terns etoit calme, on entendoit bien loid.^ Dans ce proces-ci il a donn6 &e' T^vidence tout contraife. Mon frere Bowen, Texamina sur ce point, et je vous lirai son Evidence dans le proces actuel, et done vous jugcrcz, s^il y a une difierence essentiellcr ^' Quand nous etions encore sur Teau, «^ et avant d^arriver, nous avons entendu un coup '^ de fusil ;p^€ toil peut-etrc au moitie du chemin f *^ quelqu^un •. des bois brules, ctant alors dans le ^canot, a dit, avez vous entendu le coup de fusil, " iis I'ont tue." Assurement ces hisloires ne sont pas les ineqaes. — Dans Tun proces, il a jure que le eoup de fusil arriva quand il etoit a terre, et dans le proces aetuel, qu'il arriva pendant qu'il etoit sur Teau. Mat^.de I'autre cute; il faut que je demande Yotre attention a une explication que le teinoin a donne de ce qu-il a voulu d^re quand il a dit ^^ nous " avons entendu le coup de fusil ;" mon frere Bow- en vous lira Texplication qu'il en a donne.(") ('•) Before 1 make my observations upon the evidence jou have again heard, it is my duty to state to you that you must not, in the least degree, regulate your opinions by what I may say to you, but that you. must beftow your attention upon thwi criminal question to decide whether he is guilty or not. I re- mind you again, that it is you who are to judge of the credibility of the witnesses, antl I must likewise make the further remark, that is you who are to judge of the situation of the country, of the circumstances that relate to the corifesslons, and generally of the degree of credit to be given to the whole of the Evidence. The fbuindation of the proof produced by th« officers of the Crowh is the confession of the prisoner, confirmed by other wit- nesses, that he killed Keveny. This confirmation, the officers of the Crown say, will be found in the evidence of Faye, as to his conduct at the time they met the Swan river brigade, and when the people of those canoes said to the people of Mr. M'Lel- lan's canoe, that Keveny was above tl^e Dalles, and in the ex- pressions of, the prisoner, •* that he would not take care, or, " that be would take good care, of him, that it was he who had " taken him prisoner ;" but at the same time you will recollect (hat Faye said, that *' he could net say that the prisoner bad **'^ 460 Mr, Justice Bowen,^-^^ Quaod nouiet'ions d^bar- ''' qp^ a ter&*e j^ai entendu un coup dejijusil; quand ** j^ai dit, que nous ayons enteindu un coup de fu. ^ sil sur l^eau, je n>i pas youiu dire que je Pavois ^^ entendu moi-meme, mais que leg gens dans le »i I'V, M said so in a threatening way.'^ Tlxey aUfif^e also that La Pointe relates the baune cunvenatioiH but with a v,«ry important addition. He swore ihat at the time this conversation took place, he henrd De Reiiihard'say, " I will take good care of him, it HI who will kill him/' Another suspicious cirsumst^nce, sajr the Crown officers, is that he was sent with five i;)oi3 bruits, and this fact has been con5rmed by the witnesses (pr the prisoner. Another part of the evidence against the prisoner, is the conver^ sation between the people of M*Lellan*s canoe, at the time the report of the gun was heard upon the vi'ater. (uf which | mean to speak again.) La Fointe says, that at that jtime one of the h^pis brulds exclaimed, " Oh, the dogs, they hav^ killed him," and that at (hat time the pris^oncr, De Roinhard, was with Ke« viBhy. The officers of the Crown maintain tlrat this expression, made Ose of oh ^ the impulse of the moment, demonstrates the expectation which all who were in the canoe had', that Kevcny would be killed. Another circumstance which demands your attention is this. La Pointe says, that he saw De Reinbard'd sword, but that lie does not know whether it was bloody ; the other witness, Faye, says positively that he saw the sword in his hand, and that he saw spots of blood oh the sword. Both these men talk of Keveny's clothes whicli were in the small ca- noe on its arrival. One says that they certainly v.'ere not the clothes which he bad on at the time they leA him, but he says, upon his oath, that they were Kevcny -s clothes, and that be had 'seen De Reinhard (Keveny) wear them during the voyage.— 3otb of 4bera agree in saying that De Reinhard divided Keve- jny*s things, and both of them, speak of the misunderstanding with the bois bruits, and they also agree in relating the conver- sation which they say took place at the time 'of the division. La Pointe relates that the prisoner said, ** As it was I who kil- *' led him, I will have my choice of (be things, and as Mainville "-was with me and helped to kill him, he shall have more than " the others." Faye, in speaking of this, circumstance, says ,the same thing. La Pointe says, that "on the arrival of the ^* small canoe, some one on shore asked, what had been done ** with Keveny, and that De Reinha-rd, being iben in the canoe, " replied, he is well hidden, he wil) not come back again."--- Faye, in speaking of this conversation, says that " on the arri- *> val of tho canoe, MXelian, Grant, Cadcnle, and another came 401 jbar- uand B fii- avois ws le that La iportant k place, him, it Bce, say jl^s, and prisoner. i conver- time tlie i \ mean ne of the led him;' with Ke- xpression, strates the at Keveny lands your Reinhard'a oody ; the ; sword in i)rd. Both B small ca- »re not the Hit he says, that he had voyage.— ided Keve- derstanding the conver- ge division. I who kil- s Mainville 5 more than —Glance, says •rival of th« been done [n the catjoe, again-' — on the arri- ,Bolh«rcame <^ canot disoient quails Tavoient entcndu. Quand *« Mainville 6toit pour arriver i terre des outardcs «^ se sont adonn^es d passer, Mainville a Iach6 un «t coup de fusil, et en a tu6 une. Qtiand j^ai en- ^ tenau le premier coup, le canot n^ctoit pas en<* ** forward, and that one of the four asked, what (hey had done « with the prisoner Keveny," and he itays, that one of the Ihreu who was in the canoe, hut he does not say which, answered, " He is well, where we have left him." La Pointe has given a separate account, by which he says, that Mainville recounted the manner in which the murder had been committed, and the resistance which Keveuy made, and both agree in saying, that 9t that time De Reinhard was very near, but that he said no- thing. Faye and La Pointe agree again in representing that they were forbidden' by the prisoner to talk of this murder, and that (hey were tuld, that if tney talked of the murder they wuuld be punished. His confesions made to five people are the strongest evidence against the prisoner. He made the same confesisiua to all five, and we have, (after hearing the arguments of conn* sel) deciiled that we could not reject them. First he made one to captain D'Orsonnens ; afterwards to Mr. Nulin, when they were walking together. .Then there is his confession to Mr. Vitchie, formerly his Comrade, in which he relates all the cir- cumstances of the 'death of Keveny* together with another, namely, " that he had confessed the whole to captain D'Orson- " nens, and that he was going to do the same to my Lord Sel- " kirk, hoping to be admitted king^s evidence,*' but he did not say that he had had any conversation with captain D*Orsonnens relative to that hope. Afterwards we find him in the hands of Lord Selkirk, with bis declaration, made by his own hand, ia bis projper hand-writing. You will, no doubt, consider these circumstances as very strong, but there is yet another, which, if it be hot stronger eVen than the others, is equally worthy of remark. I allude to his declaration to Mr. Macdonell. He be- gan a conversation himself with Mr. Macddnell, and told him ' that ** he was a prisoner, and that he had killed n gentleman of *' the Hudson's Bay Company," and said, or added, " shall I "name him to you ?" and ^vhen Mr. Macdonell said '• yes," he then named Keveny. This is a circumstance very extraor* dinary of itself, but Mr. M'Donell sayshe spoke of Keveny with regret, and penitence for what he had done. The law always considers an act of conscience as a circumstance of a very strong nature. If a confession be extorted by hope, or by fear, it is not evidence, but in thii confession, made to Mr. Macdonell, I i«ncy you vfiil perceiva the force of conscieace. He related all 462 ''■y [,'')*« ^ encore en vue. J^etois alors a terre, c^dtolt pref ^ cl^lne heure avant que lyiainville est arrive.^ Chief Justice SeweU.'^y o\x% vojez qu'il.dit en- core qu^il a entendu deux coups, et il n*^ a pas de contradiction dans cette partie de son temoignage. tbe particulars, and Mr> Macdonell adds, " the prisoner, Dc *^ lieinbard, appeared to me to be very penitent fur what h« ** haddone* and confessed that he bad done wrong, but that he ** had been led into error through ignorance.'* I have not been willing to express any opinion exce|>t this. The jirst time thnt the witnesses say the prisoner coniessed, lie was not ntiJer the influence of fear, nor in expectation of guod. This was ai the time when the small canoe arrived, after the murder is charged to have been committed. If you believe that his second conies* sion was influenced by the circumstances of tbe situation of the country ; if you consider that, at the time of his recital to cap- tain D'Orsonnens, he was not free, then you will reject it ; i( is for yuu to weigh whether his mind was free, and if you are led to believe that it was not, Uien reject it. It has appeared to me, gentlemen, that t was bound to make these limarks upon the evidence to you oi) the part of the Crown. Hi^ confessions have Ijeen frequent. He made ope to captain D'Orsonnens; what he said to captain D'Orsonnens, the same thing be said (• Mr. Nolin ; to Vitchie he again said tbe same thing ; to Mr. Macdonell he said the same thing ; and assuredly he said the same thing to the Earl of Selkirk. On the part of the prisoner it is my duty to state to you that he has succeeded in establishing tbe existence of a most extra- ordinary »tate of affairs. If he has not proved that an open war existed in that country, a war known to the law as such, yet be has proved a state of actual warfare. The discrepancies be- tween the evidence of Faye and of La Pointe on this trial, as also the difference between Faye's evidence on the two trials have equally been proved. Faye says (in this trial) " De ** Reinhard did not personally tell me that be had killed Kevc- *V ny/* In the other he said tbe contrary. There is likewise an apparent difference between the evidence of La Poiate on the two trials. In one he said that when he heard the first gun fired, he was on shore, and in the other, that be was on the ira- ter. I speak now of that part of bis evidence in which he says that a bois brul^ uttered tbe exclamation, " Ob, the dogs, they *' have killed tbe prisoner." It has appeared to me that there is a contradiction in this, but it is for you to judge, and I give no opinion. I will read bis evidence as given on tbe other trial in the Court of Kiog*s Bench, as it was produced by Judge -p^i— •^-.,-1' prof it en- ;nage. ner, D« what h« I that be not been ime th^t mile I the as a'^ the 9 charged i\d coTifes* iun of the al to cap- jject it ; it if you are 5 appeared luarks upon confessions Orsonnens ; t he said le o you that most extra- \n open war iuch, yel he pancies he- ihistriaUa* le two trials trial) " ^^ killed Keve- is likewise ^ poiote on the fiwt g"" 19 on the wa- ,hich he say* le dogs, they le that there le, and I gi'« \hc other tnal ed by Jw'iS" 463 maU dani l*un proces il dit qu^il Pa entendu sin- Peau et a present il ^it qu^il £toit a terre. Je vous dis encore que c'est dvous, messieurs, de juger de la croyance que chuque tcmoin m^rite, c^eat a vous dc determiner si La Pointe a expliqu6 la variation. Sif dans vos esprits vous considerez qu*il a parle la verity ^eneralement, et vous etes satisfaits do Texplication de Pevenement du coup de fusil sur l^eau et a terre, c'est voire devoir de le croire, mais, je i:edis que c^est a vous, et a vous seule- ment, de jugcr. Ce sont vos consciences qui doi- vent ctre votre seul guide en juffeant, et c*est u vous seulcment de juger. Je dois vous dire que Faje est coupable d^me ^coiitradiction. En par« lant de Kevcny au terns que M^Lellan Pa battu il a dit, dans c^ proces-ci : Mr. Justice Botoen. — ^* Qiiatre ou cinq jours a- <* pres que nous etions sur Pisle, nous avons vu ap- '^ procher un canot, il y avoit dedans Mr. Archj, ^^ (M^Lelian,) De Reinnard, (le prisonnier actuel,) *^ Mr. Grant, Mr. Cadotte, les nomm^s Desmarais, '^ et Mainvillc, aussi un Canadien nommc Rochon ; ^' ils niontoient la riviere, et gagnoient vers le Lac PerrauU : *' being cross-examined, he said, when he heard the " report of the gun, we were encamped, the weather was caim, " we could hear from afar pff.** On this trial he h^s given evi- dence quite contrary. My brother Bowen examined him oti this point, and! will read his evidence to you on the present trial, and thcA you will decide whether there is an essential difference. ** While we were yet on the water, and before "weanrived, we heard the report of a gun'; it was perliaps " about half-way ; some ohe of the bois brulds then in the canoe, " said, < did you hear that gun, they have killed him.' " Cer- tainly these narratives are not the same. On the one trial he swore that the report of the gun occurred when he was on shore, and in the present trial, that it occurred while he was on the water. But on the other hand, I tpust call your attention tn the explanation which the witness gave of what he meant to say when he said *' we bcaE||^ the report of a gun ;** my brother Bowen will read lo you the explanation he gave. h:l.. h Ifei if- 464 •I i*^'. M des Bois ; ils se Bont approch^ de Pisle ou nous ^ ^tions, une partie d'eui s^estd^barqu^e^mais non ^ pas De Reinhard, ils m^ont demands co que j'a- ^ Tois fait du prisunnier Kevenj, j^ai rcpondu qu^on ^ Tavoit laisse sur une isle ; que le Sauvage qu^on ^ nous avoit donn£ pour guide Tavoit lui-meme lais- ^ 86 1&. Reinhard 6toit dans le canot, et auroit ^ p>eut-etre entendu ce que se disoit a terre. Mr. ** n^etoit pas notre affaire.^('*) (••) Mr. J. B.— " When we bad landed, I beard the report ** of a giin ; ivheo I laid that we bad beard the report of a gun ** upon the water, I did not mean to saj that I had heard it ** myself, but that the people in the cut6t said tfaat they bad ** beard \U When Mainville was about to land, some bustards ** flew past, Mainville fired bis gun and killed one of them ; ** when 1 beard the first gun the canoe was iiot in sight. I was ** then on shore ; it was nearly an hour before Mainville ar* " rived.'» C. J. S. — You see that be still says tbat he heard two reports, and there is no contradiction in that part of bis testimony, but on the other trial, be said that be beard it upon the water, and now he says that he'beard it nbeo be was on shore. I again say to you, gentlemen, it is for you to judge of the belief of which each witness is worthy, it is for you to determine wbelher La Pointe has esplaine3 the variation. If, in your minds, you are satisfied with the explanation relative to the r(>port of the fun upon the water, and on shore, it is your duty to believe im ; but, I repeat to you, it is ibr yon, and you alone, to judge; Your conscience must be your only jniide in detenniii* ing, and it is you alone who are to determine. I nuisl lell you that Faye is guilty of a contradiction. Speaking of Kbveny at the time M'Lellau beat him, be says in this trial. Mr. J. J3.— ** Four or five days after we were on the island^ ** we saw a canoe coming; in it were Mr. Archy, (M'Lella!,) ** De Reinhard, ][the present prisoner,) Mr. Grant, Mr. Cadoite, ** the persons named Desmarais, and MainvIHe, also a Canadii^n *' named Rocbon ; they were going up the river, and were pro- ** ceeding towards the Lake t>if the Woods ; they approached the ** island where we were ; a part If them landed, but not De '' Reinhard j they asked me what I bad done with the prisoner qu qu onl -tbj II II 11 •Kkl LI nous ftk non u qu^oa e qu^on me lais- ;t auroit •e. Mr. mot, La r. Archy it que ce rd the teport port oi' a Run had livard il that Ihey had tome bustards one of them *, sight. I was MainviUe ar- rd two reports, testimony, but [he water, and »ore. I aS'^'n i the belief of jnnine wbelbet ,r minds, you - rep«r* "^ ^^* luty to l)eV>eve you alonp, to J in deter«'"»- ,p I must lell ^kinRofKeveny Pon the isjand. fnt:Mr.Cado|te also a Canadian Land^erepro. ded, but not DC 465 (^ef JntHf S^efi. — La difil^rence entre ce t^itodignage et celui qu^il tt rendu aiiparavant est celle-ci. Dads le termede Mars il a dit quecette cortversation a eu lieu t^h qu^il avoit eaabarqu6 dans h canot^ et ^ present vous cntendez qu^il a jure Hue c*^toit at terre et avatU d^embarquer. Si vous troiivez la contradiction assez forte, |)our d6- trbire 6011 i^'moienage, du peur vous faire dbut^lr de sa y^rite eiilierement, done vous n*j dbnnere2 aucune ck'&jance. II y a d^aut^s circonstancea que le prisonnier, aycc beaucoup de raison^ditStrft a lui tres importi^nted. II dit; prteinl^retnent, qu6 Jdse Flls die la Perdrix Blanche, n^est pas proouit de la part de la Couronne, tet quil avoit raison db Pattendre, parc reconnu.'* Sur ce sujet le capitaine D'Orsonnens a dit, '^ Je tCavois point de canons ^mantis qu^apres la declaration faite par De '' ReinhaH. Monsieur Vitchie m'a apport^ deux ^ petites pieces le ciriquieme ou le sixieme d'Oc- ^ tobre/' II a dit cela sur son transqueistionne, Sur son examen en chef, il a jur^ ; ^^ Nous avons ^ passe par le Fdrt Willlatn, nous siviohs des ca- *' nons, raais pas ^mntis ni aucuHs grimens pour. ^ lis etoient destines pour la Riviere Rouge pour ^la defense de la coionie.^' Voila la difference entre ^evidence des temoind de la part de la Cou- ronne^ ^t de la part du prisonnier, et aussi la dif- ference apparente entre celle du capitaine D^Or-' so&nens sur son examen en chef et sur son trans- juestionne. C'est a vous^nousdevons encore dire,de juger, mais pent etre la difference apparente du te- inoignagedu capitaine D^Orsonnens se trouvera re- conciliee quand nous considetons que le capitaine D^Orsonnens parle toujours de la declaration de ^ Reinhard, c'est a dire son temoi^nage porte )u*un evenement se presentoitavant} ou apres, 011 GO* II: - I k*''i 1%' !■■■■ •■■ '•;%:'■''•" « J; :%i : 1, ' 4UB declaration, ainsi en parlant de Ces canons^ il dity^ '^ qu^il n^avoit pas.des canons mon/^« qu'apres " la declaration de De Reinhard.'^ A I'egard de la difference entre le capitaine D'Orsonnens et les t^moins du prisonnier, c^est votre province de dire ^ que vous donnerez la croyance. Une autre cir- constance qu^ les Conseils du prisonnier ont plaide, est que les Meurons Pavoient iuflu^s de faire- sa confession au capitaine D^Orsonnens^ et que son esprit n*etoit pas libre. Mais, je crains, que cette circonstance ne Faidera pas, parceque tout les te- moins s^accordent que les Meurons ne sont pas ar- rives avant sept heures du soir, etsa declaration a 6te faite a deux ou trois heures de Fapres roidi, cu au plus tard a quatre heures. Encore une cir- constance en favour du prisonnier se trouve dans I'evidencc de monsieur Coltman. II etoit tres a ps II a, messieurs, le droit d'etre estime, non pas coupable, jusqu^au moment que vous etes sat isfaits, et que vous dites, par votre rapport, qu'il est cou- pable. Pour nous caettre en etat de dire s'il est coupable, on non coupable, vous peserez bier, le temoignage de Tun et de Tautre cote. Si, quand tous Tavez considere, vous mettez ses confessions a cote, et avec elles les evidences de Faje et La Pointe, vous direz qu'il n'est pas coupable. Au contraire, messieurs, si vous ne vojez pas un fondement assez fort pour satisfaire vos consciences que c'est de votre devoir de mettre hors de votre crojance, et sa confession et T^vidence du capi- taine D'Orsonnens, de t^aye, et de la Pointe ; je dig si vous Stes convaincus, d'apres sa confession et les autres t^moignages, que le prisonnier est de tout coupable, il faut que je vous dise quil est coupable du crime de meurtre. Le temoigndge fee ¥ 469 d de Bt les e dire •e cir- )\aide, lire sa ue son e cettc ; les te- pas ar- lavatioti Bs midt, une dr- ive dans toit tres monsieur echappe- >chapper. lion pas satisfaits, III est cou- •e s'il est z bier. Ift Si, quand lonfessions ^aye et L* lable. Au ^z pas un [onsciences 'b de votre ^ du capi- |pointe; je confession ionnier est Ise q«'>i e*^ ^^Bjoigndge il^a pr^sente a«icune escuse pour lo priaonnier. Le crime, . suppose que vous le trouvez avoir eik com- mis, est ie crime de meurtre, et de meurtre seule- ment. Les circonstanccs de son cas ne vous ont pas laisse le pouvoir de diminuer le crime jus- qu^aucun autre 6egrk de homicide. 11 n^est pas possible de dire que c'^st manslaughter, ni aucun autre crime que celui de meurtre. Messieurs, a present vous auroz a exerrer vos jugemens sur le t^moignage entier qui a et6 don- ne de la part de la CoUronne, ct de la partdu pri- sonnier, et, en le faisant cette Cour ne vous de- mande pas de donner plus d'attention que neces- saire a ce qui je vous ai adrcsse pour vous con^ duire aux faits et circonstances du cas sur lesquels vous avez a determiner entre la CoUronne et Ic prisonnier. Tout et chaque verdicte doit etre le verdicte dee jures asserment^s pour te rendre. Reflechissez sur votre devoir au prisonuier, mais ^^o^bliez pas que vous en devez im au communite ei\ general. Donnez une attention la plus seri,-> ease i Tentier du temoignage qui a ete r^ndu dan& ce long et tres important proces, et quand vous Pa-^ yez peae j^vec deliberation et que vous avez satis-^ fait d^ vos conscieDces, vous donnerez un verdict^ qui coQviendi^ e^lemetit a Fhonneur et a la reli- gion. Un verdicte apres lequel vous pourrez> dire, iious ayons fhit utae vraie delivrance, entre Dotre Souverain, Seigneur le Roi et le prisonnier Charles; De Reinbard, et nous avons aonn6 un verdicte vrai, conformement au temoignage et a nos serments.(" ♦^) ' (") The differcnqe bet^recn this evidence, an^ that which he gave Iji'fore, is (his. In Marct^ te,r.ni he said that the conr versaliua took plape after he had. embarked Iji the canne, and riow you hear hp siyears that, it waft on shore, and before em- barking. If you consider (he conlradiclion so. great as lo destroy his lestimony, lo make you n litilly doubt his tru!h, 4hen yon vill place no bdief in it TUerc are iKher circumstances which 470 The jury then retired ; after they Jiad been out of Court about an houry h message was sent to them to enquire if it was Ukely that they would soon agree, the answer being in the negative^ the Court adjourned tiU7 o'clock, P.M. Friday Evening, 7 o'* clock. PRESENT AS BEFORE. Brf^ About half-past seven the jury entered the Court and were called over and they being aU present. iitll mm . 11 : 8!J1V'',W»/' ill'' Officer of the Court. — Messieurs, etes vous d'ac- cord sur voire verdict? ' ' /wry.-i-Oui, monsieur. Officer. — ^Qui pariera pour vous ? Jury.— -Monsieur Levalle, tiotre president. tbe prisoner, with mucb reason, says are very important (o bin^. In the first place, be says that Josepb Fiis de Perdrix Blanche, is not produced on the part of the Crown, and that he bad rea- son to expect him» because he was taken by the commissioner for the Indiaii 'territories, in pursuance of the proclamation ot his royal highness the Prince Regent^ for the purpose, as be un> derstood, of being a witness in this cause, and Air. Coltman confirms this^ Another 'circumstance is this. He says that captain D'Orsonnens acted like an officer, whilst he hipiself swore tbat he was tio more than a simple individual. I will avail of this op- portunity to state to you tha't it has not appeared to the Court that captain D^Orsonnens ha^ committed himself, not at all, I make this mention of our opinion, not to direct your's, but bet cause the Court thinks it du6 to soniere and Chretien, and the prisonef, by his counsel, says tbere is a good deal of contradiction in captain D'Orsonnens' own teslimon}'' upon his examination in chief, and his cross-examination. La Bissoniere, speakitig of the cannon says, '* I saw captain '^ D'Orsonnens go away, with his people, for Lake la Fiiiie. [ "saw two pieces of cannon which he took with him. They " •were mounted on wheels ; they belonged to the North West " Company, and had been tal^en at Fort William from the cor- " ners of their large bouse." In his cross-examination he says the same thing j 'f wheh captain D'Oi^onuens wont away for " Lake la Pluie, the cannon were embarked, and they racre ^' ready mo^nted.^^ Chretien, speaking of this ciicuiiistance, says, " At tlie time when I W5s in the tent at the port.igu of '' Lake la Pluie, I savv two pieces of brass cannon, mounted " upon their carrixtges^ landed at captain D'Orsonnens'* camp. " I had before seen these two pieces of cannon on the ve.^sel of " Fort William, and I recollected them well." On this <»ubjoct captain D'Orsonnens says, ** / had no ecnnon moHnted till after " De Reinhard's declaration had been made. Mr. Vjtchie "' brought me two small-pieces, on the fifth ur sixth cf October." :\[ li 47S pi'],^^'" jit ti^i nous le trouyons eoupable devoir assists dans k meurtre, selon le huitienoe chef> ' Chief Justice SewelL — Messieurs, j*al pns la prci- caution ce oiatin de vous dire, si vous vous en rap- pellez, que votre devoir ^toit de dire, s^il (le pri- He said (bat on bis crots-exaininatjon. On bis exaroinalion in chief ^' swore,' ** We Went by the Way of Fort Williain; we ** bad tannon, but not mouiUtd^ nor any matericUs for so doing. ** '/bey were ' intended for Red Riv^r, for the defence of tli6 *' colony.** This cohktilutes (Ee differt rice bflween the evidence ioT the CifOiwn,' Und that oh th^ pirt of t^ prisoner, and also the apparent Variation between that of captain 'D'Orsohnehs on his examination in' cfiief, 4nd bis cross-examinatioh. It is for you, we must .<(ay again, to jud^fe, but perhaps the apparent variation ih captain D'Orsdnnens*. tebtimdiy'ina'y be reconbiled when wo consider thdt cslptairi D^Orsonnens always speaiks of De Rein- bard*s dedai^t'ion, thaf is to say, bis evidence relate! an oc< currence as'bappening before or after, bis declaration, thus,' ^hen speaking of these cannon hie says ** that be bad hot any " cannoii «n^immteioI till after De Reinb'ard's dfeclaratibnA'Witb regard to tbe'yatiation Ibetween captafn D^Orsonnens and the witnesses for the prisoher, it is you^ province to say to whom you will giV6 credence. Another circumstance which the prison"' fr*8 counsel have pleaded* is, that the Meurons bad influenced himi to make 'his confession to captain D^Orsbnnens, and that bis mind was hot free. But I f^iBi that this circumstance will itot avail hint, because all the witnesses agi'ee (hat the Meurons did not arrive till seven d*clock in the evening, and his decla* ration was made at two or three o^clo'ck in the anernobn, or, at the latest, at fouro^clock. Yet another circumstance in favour of tbe prisoner oiicurs iii the evidence of Mr. Coltman. He was very near the United States, so near that Mr.' Cbltnian says he was apprehensive be ihigbt' escapei but be did not attempt to escape. He is entitled, gentlemen, to be cpnsiderea ns not guilty, until the hioment whfen'you are satisfied and (hat you say, by your vcrdict,^ Ihat be is guilty. To ehable you to say whether be is guilty' or not guilty, you will weigh well (he evj. dence on one side and the other. ' If, wh«>n you have considered it, you set bis confesawohs aside, ahd with them the evidence of Faye and La Pointe, you will say that be is not guilty. On the contrary, |entlemen, if yoo do not perceive sufficient grounds to satisfy your conscience thrt it :i your duty to discard from your belief, 'ks well bis cohf^ioh, as the evidence of cap- tain p'Orsonnens, of Faye, and of La Fufnte ; I say, that if yoa are convinced, according to bis confession and the other te ■■- ■Mi' 473 ins W at pre- n rap- le pri- taiion ill lain ; ' we so doing. ce of th6 I evidence id also the ihs on his is for you, it variation I when wo I De Rein- tes an oc- Btion, thus, lad hot any on?r."Wilh >ns and the ly to whom I ihe priiion- d influenced ns, and that nstance will Ihe Meurons id his decla- fnoon, or, at ice in favour ,an. He was inian says he I ot attempt to idered ns not arid that you )le you to say well theevi- ive considered the evidence _. guilty. On ficieiit grounds discard from lence of capr 1 say, that jf and the other fonnier) est ou n^est pas coupable du Grioae de ineurtre; parcequ^on ne vous a pas Iaiss6 le pou^ voir de diminuer le crime k aucun autre degrk d'homicide; s^il est de toiit coupable suivatit cet indictement il est coupable du crime de meurtre, et de meurtre seulement. £t si vous le trouvez coupable comme aidant, assistant, encourageant> et ^tant present, vous le trouvez en e&et coupa- ble du crime de meurtre selon le quatrieme cnef aussi bien que le huitieme. LevalU.-r'^ous le trouvons cpupable sur le hui- tieme. Chief Justice SewelL — Et le quatrieme aussi ? Que drtes vous ?(^^) s evidence, that the prboner is at alt guilty, I am bound to tell you that be is guilty of the crime of murder. The evidence does not pr^ve any excuse for the pri8uQ,er. The crime, sup- posing you 6nd that it l^s ^een. cemniilted, is the crin;te of mur- der, and of itiuhler alone. The circumstances of his case hav« not left you t^e alternative of reducing the crime to any other degree of homicide. It is not possible to say that it is mao* slaughter, no^ any other crime than that of murder. '^ Gentlemen, you must now exercise your ju,dgemei\t upon the whole evidence which has been given both on tl\e part of the Crown, and on the part of the prisoner, aud in doing 5o the Court does nojt require from you to, pay mpre than, ihe neces! (9*) C.J, 5. — Gentlemen, you v^ll do better to relirje, aud> reconsider your verdict. Levalli. — We consider the pri»>ytcr, according to the evidptice we have heard, as guilty of assisting Mainville, who committed ^e murder, and we find him guilty on the eighth count. ..Jiff. J, B. — You ^re not then agreed, gentlemen ; f^r if you '(bd him guilty- of haying been present, aiding, kc. Majnvillc, assuredly rou must find him guilty on the fourth count of the in- dictment, which recounts that charge, and if you understand the fourtH count, you will ^):^rceive that that count charges Maiuville with having killed Keveny, the deceased, with a gun, and De Rcinhard with having been tlien present, aiding, assisting, &c. The eighth count, gentlemen, again charges the prisoner with the same crime, and ill the same degree in law. The only dif-« ference between the two counts is this, by this count tlw crime is reduced, as regards the other persons accused, but not as re- gards the prisoner; and it is he only who is now on his trial, }'ou can not therefore say tb:«t the prisoner is guilty upon the eighth count, and not upoii tl^e fi^VKfib^ because they are both; the same. t. /. 5. — Yes, gentkmen, that i^ Ibe case. Huhe words of one aud the other couhT'are entirely the same, the fuurtli and the eighth counts are yi> holly, as fur as the prisoner is coiiceriud, the same, and it is theieforc wc i*€(]ue8t you will* reconsider your verdict, because if you fnid him guilty on the eighth couitl, i>n^ you say at the same lime be i^ not guilty u}K)n the others, it iij a manifest contradiction, for the fgurtli is precisely the same r.s lh« eighth. . .-« 471 If fst VOUB vcau, oupa- meme it une ne est I which lat the i Qot on ly ihatv id'iciion. verdict ?' retir/B, a«A^ he cvidrnce ) committed »unt. 1; for if you . Majnville, int of the in- dcTstand the e& Maiuvillo un» and De S8i»tii»gi ^^• irisoner wi'n 'he only dif- int Uic crime >ut not as re- on his trial, ij\ty up*^" ^^'^ key are both ;be words o( lie fimrth anvl is coucernni, lco»>sideryow othprs, it^ |y the 54«1P '-^ Mr* Stuart, — We have not ling to d^ with ton* sequences ; that is the verdic Chief Justice Sewell, — But v^ e have, tnd a "^at deal too. We will not take such a verdict We can not receive it. Mr, Justice Btnven. — We can not, Mr. St .art. Mr, Stuart. — Am I then to understand that the Court refuse to receive the verdict. Chief Justice Sewell, — Certainly, Mr. Stuart, w« do refuse. You ask us, in the face of all the world, io let a jury say that Mainville did with a gun kill Owen Keveny, De Reinhard being present, aid* ing, assisting, encouraging, and counselling the murder, and at the same time to let them also lay that he did not kill him, and that he was not €0 present. The thing is absurd. i . Mr, Justice Bowen,'—Yo\i certainly do not sup- pose that we can let a jury say yes and no in the eame verdict, and upon the same fact. Mr, Vanfehon, — Je pen^e,s^il plaita laCour.('^) Chief Justice Sewell. — Mr. Vanfelson, we want no assistance in entering the verdict, neither wiU we withhold the least particle of justice from the unfortunate prisoner, not the smallest you may ha assured of it. Mr, Stuart,"^A\\ we ask is to htve the verdict^ such as it is given by the jury, taken. We hum- bly conceive it is their province to give itf and our privilege to have that verdict, be it what it ' may, entered on record. What may be the con- sequence hereafter I have nothing to do with, I only want the verdict as they gave it by their Ibrp- man. Chief Justice SeiveU^-^Thcj have not given ope, Mr. Stuart ; they are not agreed. A juryman be- hind said they were not •agreed. # .-'\ 1 h; i:i m \:\i] '*. ('♦) la think, if it please th« Court ]i' m 1 m 478 Mr, Slunri. — Then ihej had Ijettcr retire, they laid they had agreed when asked by the officer of the Court Chief Justice SeiM//.— Let the fourth and eisfhth counts to be read to the jury, that part of them, which relates to the prisoner. Et Djessieurs hs jur6i, je vous prie de donner votre attention a la lecture du quatrieme et du huitieme chef de Pin. dictement.C) Mr. StuarL-^U any part is read, I should wish the whole. Chief JuiHce SeweiL — No, Mr. Stnart, the fourth Mid eighth counts are quite sufficient. Read the fourth Air. D'Estimauville. The fourth count was tJien read as far as rehied to ike prisoner, Mr. Stuart'^l wish to enquire if the whole eoont has been read ? Chief Justice SewelL — It has all been read which relates to the prisoner, which is ouitc sufficient. ^ Mr. Siuart/^( any part is read, I should wish the whole. Chief Justici SewelL — ^What, the whole of the indictment, do you mean, or what ? We are not trying the accomplices, it therefore can not be re- quisite to read more than what relates to the pri- soner. Afterwards you may have it read a dozen times if you think proper, nut do let us now un- derstand what relates to this prisoner. Read th« eighth count, as it respects ue Reihhai^d. 7%e whole of the eighth eotmi was then read. Mr. Stuart.'^l hope your honours will lay down the law to the jury on the doctrine of acccssarj beibrfe and aAef the feet, as probably they have not If n- ('*) And, gentlemen of the jury, I he^ jou irill pay attentioi In the reading of 4hc fourth and ei^^th counts of the indictment. 479 , they iccr of eis;hlh urs 1«!9 ion a la de I'iu- jld wish [\\ pay attentioi the indictment- l clearly comprehenilcd tho application of a point of law to the evidence. Chief Justice SewelL — There is no such charge in the indictment as that of accessary before or after the fact against Do Reinhard, and therefore there can be no necessity of explaining the law to the iury on a point not involved in this case. The verdict against De Reinhard can not bo Dian« slaughter, or any diminished homicide. The charee against him is murder, and murder only. Mr. StuarL — I know it ; but the intention of tho jury in the verdict which they returned would, ad it been entered, have appeared. It was not to find him guilty of murder, but of being access sary. Solicitor General. — They can not find such a verdict, for as your honours have remarked there is no charge against the prisoner, but that of niup> der. Chief Justice Sewell.^-l will not certainly per- mit the jury to say the prisoner is guilty of any other crime than that of murder which is charged, but 1 will enter a verdict of not guilty, if returned by the jury, with the greatest pleasure. Mr. Stuart. — I humbly submit that there could be no impropriety in your honours explaining to the jury the application of the principle of an ac- cessary before and after the fact, niasmuch as, from the verdict ofiered by the jury, it is evident they were about finding him so, and what the ef- fect of their so finding would be, I humbly con- tend, is not a question for our consideration at the present moment. Tliey are to give a verdict, and as it is to be their verdict, I submit we are bound to receive it, without enquiring what may or may not be the consequences of that verdict. Chief Justice Sewell. — The law upon the subject of accessary before or after the fact is so clear *ir. ,;:■ m •m tt ■ mi . --• _.jji|; ik ■■«li 450 tbat there tail he no midundersUnditig upon th^ subject, and it Id equally clear that, in no point cpf view, does it stpply to this unfortunate mi^n. An accessary antecedent, to the commission of the of- fence, becomes so by aiding^ pro|^osing, counsel- ling, encouraging, or by any acts which may have direct tendency to excite to the perpetration of crime. An accessary after theofibnce is committed, becomes so by receiving the felon, aiding his escape, or an^ other conduct the tenancy of whicn is, to shield the perpetrator of the crime, or enable him to escape the course of justice. Those are principles of law. This indictment states to us a fact^ namely, that De Reinhard, of malice aforethought, killed the deceased, or was present, aidinj^ and assisting another in the act, and the law, m either of the caseB, Constitutes such a charge, a charge of murder, and of murder only. *^ Mr, Vanfelson rosei hui urns noiptrmiiUed to ad' dress the Court, Chief Justice Sewelt,^^Me6shur6i tous fere2 mieux de vous retirer. •/Hr. LevalU, — Mainville^ commen^oit a com- niettre le meurtre, et De Reinhard ^toit present et I'assistant C'est mon rapport, et le rapport de mes freres, suivant le timoignage comme nous I'avons entendu^ et nous ne rendrons point d^autre. €lhiief Justice^ iS0iof//.-i-C'est a dire, messieurs, nu^il est coupable sur le quatrieme et le huitieme cnef? JUr, I^vd/i^v— C*est la meme chpse.('*) («•) C. J. ;$?.*— Gentlemen, you will do tetter to retire. jLe^Di^.— fifainville began to ijominit .the roiirder. and De Reinhard was present and fissistitig him. This U my verdict, and the vfeidict of my colleagues^ according to the evideno^ we have heard, apd we will return no other. 481 «.rd. kr. Waller, .haThe;. ^ •"'"*'' °f •*- and murder wherU he i, accf .'^- "'' ""■ ''"'"V form a, he stands char^ T^ ' ? """""*' «"« the fourth and eLrhth^uZ :'«'"^"»«nt upon the rest «"V» counts, and not guilty on Clerk of thf P»>.. ^ . hearten ,6 vour Sr®*"'[*'»«" "^ 'he jorr. «orded it. Vo" !!' l'."' ""* ^^O"" have ^: Jw IS accused, in manner »Lf "'""'*"" "^ '"Wcfe ; Pha.'-ged in the fo"rt™ahd .f I^k" "' »»» •<««J^ *f chS?^' ("-^-Aoo, non pas «., ,^ ^.'*¥ Juuke SemeU.—l\ k,,t • ' WM soyez «ous d'acconl il " '., •"*."•'«"«. que Wiier. ^""'' " »aut mieu» da vous IfiSlft *-? -7'* l^*'' be read again fcmauWli?!t*';artf1t wh'^-S^r^r: *>e Reinhard. ^ \ " ^"'©^ relates to De Reinhard. ^^^ '"^^'^ «* ^ r^/a/a/ to ^^if Justice Seumtt ^ 1 '^^^ • Ln«/^_rp. . - " ^S'^^^d. you had better 'iMWl 482 ^A • Mr, Trahan, — Oiii, vos honneurs/ Chief Justice jSett;6//.^Entendez done a present la lecture du huitierne chef, et voyez si vous y trouvez la moindre difference, lis sont, mes« sieurs, tout a fait les memes, en autant que le pri* sonnier y est interesse.('*) The eighth count was then read. Mr Stuart, — I wish to ask if the whole of the fourth count was read. If the jury are to find on ithat count, it should certainly be all read to then). Chief Justice Sewell. — All that relates to the ^prisbner has been read, Mr. Stuart; that part which has been omitted relates solely to the acces- saries, and there can be no need to read it, to ena- ble the jury to decide on the guilt or iniiocence of 'this prisoner. Jur. Siuart, — That is nothing to me, if the jury are called on to find on a count, they ought to near it read. Mr* Justice Bowen.'^lt is most extraordinarj that when we are engaged on the trial, of De Reinhard, upon an indictment for murder, that it can be of any consequence to read to the jury, a charge against four others, who, are charged as being accessaries. They have chosen to have se- ])arate^ trials, and now we must sever the counts aiid charges, as thej respect them. The counts iic>W In discussion ^contain two charges, what re- lates to the prisoner has been read, the whole of what has reference to him has been read, in- deed the whole of the charge, which tp the priso- ner is the same as a count. ('*) C. /. 5. — Have you now rightly heard it, you, Sir, who before did not. Mr, Trahan.'—YeSy your honours. C. /. 5.— Listen then now to the reading of the eighth count, and s^ if you perceive the least difference iii them«- They are, gentlemen, entirely the same, as far as the prisoner ii coocerq^d «sel^ be same thmgi'a^J,'9''-ft '" »<>• P"^*^ reoeat, very resnec(?i,'lr . .u «' "*'? again .to •naj jear it read, indeed7^„ '^ "? * ~'"'*' "»«Jr count shoifld be real? a^d?^7'l°'*"*^"'« <■<»"•»«» Court had no r,vR keLt.y^ °®«*'- °f «ii« 4 « 18 mere y for the :„^'^'^'S?*«»rof a prlsiinM *!'« anjr objection, frol an^^V^ W u"' '"^ ^" "I -It-*, i£ 464 it ought 1o hcf granted, but I rcranjoan not s^iethfi jp^ecessity o\* pjr^jpri^ty ot 9uch reading. ^ z;^ -^ , . Chief Jusftce Setoelt. — What good it js to prpduc^ I know not, but let it be read. , . >(*i-ni ^Uorney-Gener^l'T'^ submit, poaj it please the Court— ' ;J "J ' • "' .*f :f.-->H,-.';Mr bh4ef Justice Sewm.^^Np^ Mr. Attorney-Gene- yal. rray/let it he read, \^ \.. Mr, Justice ^owen. — I do nqt see^nj benefit tYiat is to arise: ^oin it, but if it is. the Chief Jusr tice*$ wibbf^l have no objection to its, being i:ead. Mr, Stuarl.'-^My reason for urging its reading is that,^ if the jury are to(in^ pn it^ qpt one word of it ought to be omitted. vj ojt i * Chief Justice' Sewelk-^l^he > eigtitn, cqunt has Been read withput a word i^eing omitted ; noteveii a name* s Mr, iS/^r/.rrl do not complain p|f that It is thejnirth., ; ■ ^ \ : ^,Vhat it iftay. ^ The fourth cQunt tpfts then r^ad Ihrtmghovi, Prt^oner.'— IVlousifiur D^jpistimauville, aves; vous fim avec cetlt;f j^stigpition du.diablpi (/p the Court.) i^puleis vQus 'n^cj, pprmettre ^e parler un peq dei Chief Justice SeweU, — Certainly, ye^. Pn'spncr.— J<^ suis mortifie d'^entendre I'indictc- inent, i| paroitroit d^pt re ai^ commence paeot. Je pensois qu^il auroit ^te iini. C*est asses; long a present, dix j^urs, et je suis mortifie, bien n]oi;ti- ne, qu*il fesoit plus lopg^ par lisant rindictemeot* («•) Mr. D'E^timauville, have you firtlsbed wilh thU instiga- tion olthe deril ? (to the Cmirt.) Wfll you perquit me to ay'i (ewVord*. Ill . ! . , \ 485 fourth .hen, whicKirS t ^w" '"^ *° *« »eg ^„ be .ake'J^; E^J.^-T^* hope the »e can record their tcrSl 7 ^fl *" ^'^' ^'"^'^ frhat, hi point offset t£vJ„ V ^^n* tpknow, titer it,: if It is a veHilt J i?^' *" that I may hBitierde-chd; d'Snt''!!!^''"' '^""P^We sil^ie Chief Jnsiic^ SwseU iv * pouvons pas 7e recevoir '^*"'"^«''"=to"«. et nous ne i-erofs de faim. *« pas d autre, ^l^e hiou- fourmotH'n ""*' •»«»«. tout d fait, n^' long a ■ WoildWJ!!*r"^' ?" nibrtified to hear fh. j j^"^ '^' . n,orti. I been finX ^l^ .^* /»»« «>«K«n,„g. I ,^5' i " t^"j!f '^ ^'^ '''''^-"^*''-"'™^*-<»«-ei^.b.cr^^^^^^^^^ :'♦ 486 IV U II'- ii.s* ikvS m ^ 'if '^ ri f{Th^jttnf then tj^irtd ofd sliortiy afier retumt^m^ Officer of the Couri.-^Mesgieurs^ etes vous d^ac* pocdaur vptre verdict. - ./wfy.— Owi, n^onsictir^ Officer. — Qiii parler^ pour vous ? Jt«rv.—- Monsieur Sasville. O^eri— Aegardez le prisoimier. Commenl difes yojus? ^^.i' ;coupabie du meurtre et felonie d^ la maojiere etilfprmedonc il est charge daug rindiotementf ou non coupable ? \ J(fr. Sannlk — ^11 est coupable sur le quatrieme ^t le builieine chef de rindictemeot, et non pat ^•upabli^s sur les aufres.(**) Chief Justice Sewei, — -Let ity Mi. Waller, be so f ptered of record. CliBrk of the Crowns (by the /ii/«rprefer.)— Gentle* itnen of the jury, hearken to jour verdict, as the Court h^ve.record^d it You say you find Charles jQe Reinbai'd guilty of the felony and murder whereof he is accused, in manner and form as he ::> ,: . yjC* /. 5.'— We request jmi m\\ retire. It is a contradict^/ ]rei;dit« aud we, cariiiot receive it.,. ^ : A juror.-^-U is useless for me 10 retire, it is my verdict, w\i 1 will-give no other, wete I to die of hunger. ii.t'if. iS.f>i-iryou writ listen to me for a moment; I will ex* fhiu to Jrou. By this veidici, you say, upon ytnir ^tbftt that e,\s family upon the eighth count, and you aUo^say, upon your §art)e Oaths, that he U not guiftv upon all the others ; to say » Is^ a contradiction, for the fourth and the eighth are eiactiy a- like, the same entirely, word for word. (*9) Officer. — Gentlemen, are you agreed upon your rerdict. *• J«ry.*-*Yes. Sir. ;, , . g Qjlictr Tr-Who shall speak for yow ? - rr •yV''''ll'^^^' Sasville. »! fQ^S^«-^Look at the prisoner. , How do you say ? Is be guil* 1y of the murder and felony, fn the manner and f the verdict of the jury, becau<;e they have been allowed tocbnverRe with other people on the fiubject oHheir verdict. We 5hall produce affidavits that the jury have con* versed with individuals oo the subject of this trial. 489 |et do 8 qu6 jet de idualsf speak one to bit trW )ur afin lere are Stuart, ons, Mr. law, and jury and ' oiir ob- me will, »urt. • e Court, ent, the grounds, first step iction. |Stuart,oa motions* kt against the Ithft province 1 offence com- stillnolota Lse they ha\« Lubject oftheir Iry have con- You must be aware tbat the question of juridictron 18 dooe with. You can not intend to argue it a- gain. We gave jou our decision upon it, after a toiemn argument, and the jurj have given jou theirs in their verdict. Do let us know the real, solid, legal grounds upon which jou propose to ditrcuss the motions jou have stated your intention of offering, tlie one in arrest of judgement, and the other for a new trial. Mr. StuarL — 1 will state them more explicitly to the Court. It was my intention and endeavour before, to let the Court know, not what I did not intend to arcue, but that which (with great defer* ence) I (/ta intend, and I proposed to do so, be* cause it was what I felt myself entitled to argue. If the Court differ with me, my duty is of course to submit I will briefly state to your honours the course I propose to adopt, and it will include the grounds of objection submitted by my learned friend who is with me. My first objection goe<) to the question of jurisdiction, which, although considered by the Court to be a point upon which they have decided, I may peihaps be permitted to renew to a certain extent. 1 ao not desire to go again into an extended argument on the sab- ject, but I do ho|>e that in an incidental manner I may be permitted, to a certain extent, to renew the consideration of the jurisdiction, as connected with the question of locality. I proceed to say 2ndlv. That neither this Court, nor any other Court in Canada, has the right to try ^qv felonies. Power is only given them, 1 contend, for the trial •f misdemeanors. 3diy. Waiving the last objection, I submit that, if power to try ror felonies is given to any, still it is only to such as are the usual Courls^^ and not to a Court of Oyer and Terminer. My fourth objection will be, that two separate kKnm '%:i;.:m 1'^ If 'ft'- m 49(r retunis of the jilrj have nat been alloifed by th^ Court to be taken^ although, as I contend, the prisoner is entitled te have the verdict of a jury recorded* without any consideration of what the consequence of that verdict may be. Chief Justice StwcU. — :We can not allo^^ that, Mr. Stuart. We must do our duty whether the Crown or the prisoner may bo affet^ted thereby^ We can not suffer you to argue the propriety of our refusing to receive and record an illegal, be- cause a contradictory. Verdict. All that t^e said to the jury was this, if you find the prisoner guilty of being present, aiding^ and assisting Francois Mainville, to murder Owen Keveny, it must be^ either upon the two counts that charge that crime^ or if you find him guilty upon one count only, arid ■ot guilty upon the rest* then you must find him guilty upon the firs^.t which charges the offence, which is the fourtii count, but we can not take such a verdict upon the eighth, because it would amount to an aosurdity, involving in it a direct contradiction, as the fourtA is verbatim the same as far as the crime of the prisoner is set forth. — We can not, Mr. Stuart, permit you to argue upon the conduct of the Court relative to our refusal to record what^was an illegal, because a contradic- tory, verdict Jwr. Stuart, — t merely state my objections,- and must of course bow to the authority of your ho- nours. My next objection, waiving the forii '^r onesy (thr DO Court in Canada has power to Xij for % felony, or that, if any, it is onfy the usval Courts^ and not a Court of Oyer and Terminer,) will be, that by the 43d of the king, Cap. 1 38, it is only subjects of the king, committing '^ offences in the ^ Indian territories, or parts of America not within ^ the limits of either of the provinces of Upper or '* Lower Canada^ or any civil government of (he Kf J 4»1 f X\Hf , the i jury X the <^ United Stat«t o( Ameri9ii,** over whom tli# ji^ risdicCion of this province is extended, and that, in the present case, the prisoner is not stated ii^ the indictment nor have the Crown officers proved him, to be a British subject, and 1 might add that, in point of law, he is not so. r SoUciior General, — I beg to remark that it was not necessarj for us to prove tliat he was a firi- tish subject, it was sufficient for us to shew that the ofieuce was committed by the prisooef, and, by the act upon which he was indicted, if he bad shewn that he was wrongfully or illegally indicted* he was entitled forthwith tohis acquittal, but the onus probandi lies upon the prisoner* Chief Justice SeweiL — Have you any. fiirther ob- jections, Mr Stuart, to add to those you have al- ready mentioned. "!''. Mr, Siwart. — Misconduct on the part of the ju- ry* and of the officers who had charge of them, during the time they were absent from Court. In mentioning this objection, I beg I may not be un- derstood as intending any thing personal to the jury, very far from it, but I am given to under- stand, and I expect shall be able to substantiate the fact by affidavits, that the jury have been al- lowed to converse with persons on the subject of this trial, and the ofllicer who had them in charge has him/ielf held conversations on the subject with them. In reference to the gentleman thus alluded to (Mr. D^Estimauville,) I oeg to remark that,, as of course it must be under affidavit that this alle- gation must be sustained, we shall give Kim every information in our power as early as pqssil^le, 90 as to enable him to meert, and if he can>. rebut the charge. , , ; <. >; Solicitor General — As it will, perhaps, be lub* cessary torebut t^ie charge that we prepare coiUl- ter-afiidavUs, J should wish some time to b(3 Ap« ,. ''.' if") ." 2 1* B ' *^* i ; ■' * ^1 1 irr ' i 4«^ poinM for oi io rec^e those of the ^soner; that a Suitable arrangement may be made for the discussion of the motives of which my learned friends have given notice ; at present, it is impos* sibte to fix a precise time, as we can not i^rsee to what extent tne opposite side maj carry their sup- |>ort of this charge. JUr. Sitiart intimated^ inaluwtr to ti question from the Court aa to when the a£irtavtts woM be ready^ thatn as a number of person* would hate to be seen bu himself and colleagues on the subject^ and from the late hour^ eouU not be ealled on this evenings they tould not be ready until about the middle of tne next day. After some explanation between the Court and the counsel on both sides^ the Court was ordered' td be adjourned till 12 o*clock on Saturday^ the 30tk instantf and accordingly ujas so adjourned, Saturday^ '30th May^ 18ld. PRESENT AS BEFORE. ' Mr, Stuart. — I rise to state to the Court x that) upon investigation, we have found that the objec-^ tion taken last evening to the conduct of the jurj, and of the officer, under whose care thej had beenf placed, was not capable of being supported bj proof. The circumtitances having been commu- nicated to the prisoner's counsel thej felt them- selves bound, when directed by the Court to 9tate( their grounds of opposition, to include this, at-, though they had not examined the evidence to iustam its validity. Since last evenings our en* 3uiries have satisned us that it is our duty to aban- on the objection, which we now do. We feel< however, that we should be wanting to the gen- tleman (Mr. D'EstimauTille) m whose care the jury were placed, after having for a moment ques" 4fya nef, the rned ipos- se to •8up« •t>that5 5 objeC"* le Tury» id oeeri ted by lommu- t them- to statei this, al- ence id our en* [o aban- e feel< the gen- ;are the Int ques- ^oed hie conduct, if we di^ not thus publiclj de- clare that he has most correctiy fulfilled his duty as an officer of this Court, and that we were mis- infoiTned. For the argument we are not at pre- sent prepared, having been completely occupied in exntuuiing into the evidence by which it was supposed that the allegation just alluded to could bo sustained, we theretore hope for the indulgence of the Court. ^/ier tome conversation between the Courts the Crown officers^ and the counsel for the prisoner, the Court was adjoyrnedtilf Wednesday^ 3a Jtifie, ol 10 o'clock, Jl.Af. ,^ ■, • • Wednesday, 3d June, 1818. Chief Justice SewelL — Are you ready, gentle- men, to proceed with the argument ? Mr. iS/ttar/.— My learned friend, Mr. Vanfelson, will open, and I shall have the honour to follow him, in support of our mption, for a new trial, and in arrest of judgement. Solicitor Genercfl* — I bjeg leave to submit to the Court, whether it may not be a question whether your honours can entertain the motion of my leamed friends^ whether it is competent to the Court to receive a motion, for a new trial in a case of felony, it willy perhaps, be a waste of time to enter upon a solemn argument upon the question till the competency of tne Court to entertain the paotipn shall be decided. We are prepared wU(^ authorities to shew tha^ a motion for a new tri|i| can not be received. Chief Justice S^elL — There is a motion in gar- rest of judgipepit, upon which there can be^siQ question they ^re entitled to he fully heard, ^he better and shorter course, I think, will be'^iit the prisoner's counsel proceed with tlielj-'^argu- ,4*1 M mm ')'m ^ m 49i «i)ent in support of tlltir motion. We will heit> ihem tfll they amve at that part of it whidh may he thought objectiona'blet when they can be stop, ped, and the otijection be heard. Any other course, i fear, wiN occupy more time, dfid present greater drfficulties, ^an this appai*ently direct method. Hear lhe gentlemen so long 'is thi^j keep within 1«ga1 'bounds, when they excee^d thcjUf they of course will be stopped. We will hear yon, Mr. Vanfclson, at you are tp'open tbe flrgamenf upon the motion. Mr. Vkt^ihoH^^^W plait a la -Cotrr, tibus au« rons rhofKifiir de soumettre deux motions'; la pre- miere |)9ur lyi liroccs nouveau, et la seconde una motion en aviret de JDgeinent. Pour appujer la premiere, i! y a trqis moyeM ; .I««wt Que la confession que la Cour a re9ue du Oocteur A^lan, n*etoit pas uue prouve legale centre Ic prisoijoier, etne devroit pas avoir c(e re5ue.('*) Chief Justice Sewed. — if I understand you cor- rectly, the ground you take fs that In ieceivingthc confession of the prisoner, delivered to the tlarl of Selkirk, in the presence of Poctor Allan, at common law, the Court proceeded irregnlarly. Jlir. Fanfelion. — With great diefcrence to the Court, that is onia of thi^ pornis which we submit The second is, misdirection to the jury by the Court, in as much as there was no proof that Owen Keveny was killed: 1 mean there iti^as no proof of the baptismal naime of Keveny, whether it wnt Owen or Oliver^ or any other, name, and the indictment charges It to be Owen KeVeny, and it (■•) Hay it please tlie Cf)«rt. we shailt harif the honour to In^it two motions ; flie fin^t for a iM^W'<(M«il, "iiwl (he lecond, «»«SiNt of jiid)Eement. To f-ifiport the -first, H^Ptt are three IPpMli; M. TiMt the confession vi}uqU the Court received from jlr* AIImi was no leg»l proof against the [|)rifioner, andeugb^ •wit 40 hate tteto feceived. :W ^ ^..'. 4dd 1 may stop- other ireseiit direct 8 thi^y i tbeiu» laryo^i UMiB -au' 1 la pre- iiide une appuyer Q,ue la Lir Man, fisonoier, you cor- ivingthc the Karl AUafi, at « to the e submtt y by thft root that itiras no hcther it and the ly, and it Ihe honour to the tecond, (urt received br,andou$fc- was therefore incumbent on the Crown to have £ roved that it was Owen Keveny who had been ilted ; neither was there any proof ghren of the actual death of Keveny, whicn certainly was a necessary preliminary to conviction. Chief Justice SewelL — 1 must stop you, Mr. Van- felson, but by this course, you are calling upon us to hear the cause again. You must confine your arjg^uments to legal objections, and upon those \ve shall be happy to hear you fully, but your last objections to the not proving the jbaptisnial name of the deceased, and the want of positive demon- itralion of his death, are points that have been settled, and to revive them would be to try the cause again. You would not ask us to try the cause anew. Mr, Fcwi/c/lson.— Non, vos honneurs. Nous au- rons rhonneur de soumettre une motion pour un -' proces nouveau, et nous croyons qu'il n'est pas inal a propo& que nous produirions tels arguments qui se pr^sentent a nos esprits, soignanten meme terns, quails sent reguliers et conformes aux loix. Selon ce principle je soumets, avec la plus grando consideration, a la Cour, que je n^ai pas propose de faire plus que moii devoir au prisonnier exige, parceque ma proposition est fondee sur son droit, mais j.e crains que je n^jai pas bien explique mes pi*opositions a la Cour* Je me propose de sou- mettre a la Cour que mes savans confreres, les avocats de la Couronne, n^out pas prouv6 deux chose8,^.'Sayoir, que Keveny a £te actuelletnent < tue, ni q^! <9'est Qwen Keveny qui est niort. Je ^ p[ends aussi' la liberty de representor que nous-- considefouii la confession de De Reinhnrd quhli ete admise par la Cour>. comnie une nreuve »n»/)i' missible.(*?) ■.HV' li ('*) No, jou hoQouri- We shall have the, honour totubintt €U <:'t. ■^■1 Chief Justice, SewelL^-You wish us to hear Toit upon two points already aolemaly decided. One of them by .the Court, .and the other by the jury. One of then? is a matter of fact fou.nd by the jury, to wit : that OlUfen Keveny is dead, havmg oeea killed by Fi'aD9ois Miainvjiiie^ the pri^ju^ner Charles De Reinhard being present, aiding aiid ds»isting, to perpetuate the murder, and as to the .oilier, the matter qf law, you k,fiow, Mr. VaiifelsoR, jihat you were heard upon it, and we received the con- iession as evidence ai Cimmoajaw, which we could not refuse goi/ig to the jury. We can P9jt jth^jte^ lore hear you upon those points. JUr, Vanfebofu — I beg qiost respectfully to con? tend that it is the privilege of the counsel for ^he prisoner to shew, at this stage of the proceedingSi if they can, that illegal evidence has been adirii^ ted, and without its being any reflection upon the Court, to contend that the jury have been mis- directod. I submit that I may go into an argu? ment upon these two principles, because thejr t\yt nish legal grounds in 6up(>ort of the motions whi . we are to nave the honour to submit ^q your ho? nours. Chief Justice Sewe/l. — You can not, for a mp? a motion for a new trial, and we believe that it will not be wrong for us to urge such argirments as present themselves tu our mincis, taking care at the f;ame time, that they are regular, and con* furmable to law. Upon this principle, I submit to the Court, wilb the utmost respect, that I am not proposing^to do mort than my duty to the prisoner, because my positiotis are built upon what is his right ; but I am apprehensive ff faifle not clear- ly explained my positions to the Court. I propliSe to submit to the Court that there are two things which my jefrqed bretbefn, the officers of the Crown, have not proved, namely, that Keveny is actually killed, nor that Orven Keveny is dead ; I also take the liberty of representing that we consider tlie confession of De Reinhard, which was admitted by the Court, as evidence that wa9 not admisaibie. i iOl One e jury, e jury, g oeen L)har\e8 ssisting, Iver, the the con- we could ly to con? el for thfe )ceeding8» en ailmU- i upon the been mis- an »rgu? le they t'*' Lions wh? Q yoiir W bienlf doubt the readiness of the Court to hear you Apon any and eyery point that, by possibihty, can be of iad vantage to tne uiifortunate prisoner, but these you ihehtidn have been already Argued, and decisions have been giVen upon them. Upon the legality of receiving the confession as evidence, jou addressed the Court at length, and with great ability; yourself, and Mir. iStuart; and we felt ourselves compelled to solemnly decide that it must b^ admitted at comihdil }aw, as evidebce to go to ihe jury. Dii the other pointi which de* 1)ended upon the credibility of witnesses, the jury me decided that Owen Keveny is dM,' having been murdered by Fran9dis. Mainville, the prisoD- er being a principal in the second degree. We cannot therefore, Mr. Vanfefsoh, hear you on that part of your propositions, as it is a fact decided bj the verdict pi the jury. iAfr. Vanfiison, — I should imagine that the re- tisjpt of illegal evidence on a trial, or the misdi* rection df the judge, would furnish strictly legal grounds to ai^ue, on a motion for a new trial, or in arrest of judgement. I beg the Court to consider me &s arguing on general grounds, but I humblj concieve 1 am not beyond my privilege in brinff* iog before the Court these points. I believe it is no unusual occurrence, but the constant practice. Mr. Justice Bowen, — Not, Mr. Vanfelson, to call upon the same Court, which has already de- cided a question, to reverse its decision, and saj that it was in error. Points of law decided in the tower Courts are often brought up to the su- perior, and arguments take place on the correct- ness of these decisions, such as from the Assizes to the Court of King's Bench, but no case, I be- lieve, was ever yet heard of wherein a Court was called upon to hear a solemn argument, the ob- ject of which must be to induce it to reverse its 1 1 Iv ■'Jb -pi '■iy* •'lit rl:'*'r'V m'" *. 498 '''■■iff, 4 ^1 -"■.-' I- 4 f , if*;! ? V. ' m own decision. That is completely bejond usual occurrences. In fact, a proposition such asK ne- ver heard of before. Chief Justice Sewell. — It is the wish of the Court, in refusing to hear an argument on what is in fact already oeoided, (and decided after hearing ar- gument,) in the most solemn manner^ that you should distinctly appreciate our motives for so do- ing. The Indictment charges Owen Keveny to have been killed by iVlainvilTe, the prisoner being a principal in the second degree, oy being pre- sent, aiding in the murder. The jury have, by their verdict, declared Owert Keveny was the per- son killed ; then, as to the proof of the actual death, the verdict equally establishes that point. In the absence of positive evidence of the death, by the body having been seen, the Crown officers produced a chain of testimony, from which, as they contended, the death must be inferred. The jury have, by their verdict, declared that they did 80 infer, and have decided alike, that the man is dead, and that tha man who was murdered by Mainville, was actually, as is charged by the in- dictment, Owen Keveny. They have decided the matter, and we can not meddfle with their deci- sion. Their verdict is upon record, they returned it according to the credit which they gave to the evidence, and not against manifest evidence, and we can not on that ground disturb it. Had they acquitted even against manifest evidence, we could only, before recording the verdict, direct the jury to go out again, and reconsider the matter, but not after the verdict had been recorded, then, though it was a verdict against evidence, we could not set it aside, on a prosecution properly criminal; and though a verdict which convicts may be set aside, under the humane provisions of our law, it is only for being given contrary to evi^ 499 dence; Or the Diisd.Vections of th. • ^ '•ula« are found in 2nd HawkiL l^"*^?^' ^'^*«^ and 12. "" «awicins, cap. 47. sect U Wished that, JcCTZZt- '^"" '• «• ^•'" «»«- af jud,»emeot must be on -^i "°"°'* "» arrest not of fact, and ?hat if a ,w\*7?"" ?<"'aw, and '""•J- «o fact, stiil such fin j;„^ had found eren con- men., .hough a fuShed S'?r ' ''"^ j"''««^ rfation to mercjr. But a verd^^.^- ' " ^comtoen- less oo.pi„,s of law a ft.„ ? ^'"# "^corded, un- would be a iurr Zn! l^ '^•'"''ge*- ThcT- - judges admirs;^4^:i"«^ "P°" factsr instead o^ >« "i'.v'SlrS^'if^^^^ ^"""-^ > »'-• pa- pees, seroit enco« enle^t IT" '"•^"■"ent'^Ie 'a part du prisonnier, ar^JL "'J* «"«»«««. d« «ond,v„ir,'^et ^CTtemen^^^i'^'^^T'' 'J''««W >e pour u„ pr?^riT„/en'a''r'"°*'''»*' I"" en arret de .Wment Pn . " i" "'"' "■•>- •»•«. j'ai I'honneuf dTroL^? ^' *'.* *'*« "««»- «<« du prisonnierne Sr^ "^ '■"' * '='»''"«- rJ"'^*»"rresdeux2r^''' ^°*':? ''"""-•'r !' d" mort actuel de Cei ' nir" ^^ *"'P*«'"« fo^os flu. loi,,etque, eS' " ^*""5?' ?»• «»n. ]"«•«« ont trouv^ ..„. *"''^*»«'"«cton».|e, I ^'n K„ev.(t',/*"' *""«''« Preuve. la morrSf ft'''' i! i ' i _ 1 V ■ ** ■ i- « tmmA 1 ^ a *s* i 'iu W »!''' ■ ■it: I 800 " Chief Juiiiu Seicett, — I must iiiternipt jou^ fot ifk t&n not allow jrou to argue the points you men* tion. You siirelj would not^ on a motion for a new trial, or in arrest of judgement call upon us to let you argue over again everj point which oc- curred in the course of the trial, really you are hf this^urse asking us to take up the cause a- gaif],/ and go through it from beginning to end, point by point, and say whether or not the jury have rightly decided on the matters of fact, and whether the Court have decided right on the ques- tion of law. We can not do it ; if vou have a mo- tion for a new trial, or in arrest of judgement, let them be supported by legal. arguments, and we are ready to hear you at any length your inclina- nation, guided by a sense of duty, may lead you to address us. Solidlor General, — I request permission again to remark, that it appears to me to be a question whether the Court have the power to srant a new trial, and if they have not, that it will be useless for my learned friends to occupy, the time of the Court upon a subject which, perhaps, if strictly looked into, ought not to be entertained at ail. I take it to be a settled point that in no ofifence higher than a misdemeanor, can a new trial be granted, and if that opinion it not erroneous, I should consider that my learned friends can not part of the primner, with the persuasion that it is my duty, equally vay right, two motions, one for anew trial, and the other a motion in arrest of judgement. In support of these motions, I Ibve the honour to submit that the confession of the prisoner ought not to have been received ; again, I submit, certainly with great deference, that your honour's direction to the jury upon the two points, namely, the christiiati name, and the actual death, of Ke* veny, were not conformable to law, and that, in followiDg those directions, the jury found the death of Ozven Keveny, witfaoat any prcwf. 50] , iot men* for a m UB jhoc- lU are use a- D end* ie ]^ry Dt, and le ques- e a mo- ment, let and ^ft r inc\ina- lead you II again to question rant a new 36 useless me of the if strictly 1 at all. I DO offence iw trial be •roneous, l ids can not be permitted to Argue the former motion, but must pontine themselves to that in arrest of judgenient* JUr. StuarLi — I by Do means consider that it h « settled point that » new trial can not be grarite<), ia a case of felony. The course, | believe, which is to be observed in thisargument is, that we shall be first heard in support of our motions and the learned Crown officers will reply to us, In so doing they will oppose such authorities to us as their judgements esteem to weigh against qs,' buX I beg we may be permitted to state the groui)d^ upon which we rely, without interruption. My learned friend, Mr. Yanfelson, wijl open to the Court our reasons in support of ihe mptions, aiid I shall have the honour to follow him. If we ex- ceed the fair limits of discussion or advance illegal positions we sh^ll be stopped by the bench, an^, as is our duty, bow tp any correction lyl^ch its wisdom may dictate. ; ^^, Mr, VanfelsQn.'^Liea oQoyens qui jfai Thonneur de soumeltre pour appuyer les deux motions.que nous proposons de faire a la Cour, savoir. pour up proces nouveau, et en arret de jugement, ^oi^i plusieurSf et aveo la permission de vos honneur^, je prie votre attention a ceu!( qui je produirai pour vous induire a accorder au prisonnier un proces nouveau. Premieremj^nt done, je dis que 1^ cion- fession du prisonnier devant Milord Selkirk ne devoit pas avoir ^t6 re^ue. ^ment. Je ioumets, avec la plus grande deference, que la Cour a mal dirig6 auxjures a regard des bornea de la province du Haut-Canada ; et^ 3ment, j'avance que les ju- res ont trouv6 contre, ou plut6t sans aucune, evi- dence, que le pri&onnier aidoit ^ainville a ttier Oivm Keveny, parceque les officiers de la Couronoe D*bnt pas mis en preuve que Keveny se trouve ac- tuellement mort. ni que c^etoit Owen Keveny qui a i\e tue par Main vi tie. Voila les moyena par i' M e^.- ^ mm f. m^m ■'^MM 502 losquqls je roe propose de supporter la aiotiea pour un proces nouveaii.(") ^ Mr, Justice Bowert.'--And they are groundtf up- on which, I confess, I think we ought not to hear On the face of them is stated what certain- ou. y \y is not a fact, for the verdict of the jury directly and flatly qontradicts it. The verdict ofthe jury« declaring the prisoner to be ^^ guilty of the felony ^^ whereof he was accused, iq manner and form *^ as he stood charged in the indictment,^' expli- citly says, that the man is dead, and equally de- clares that it was Otoen Keyeny whom the prisoner was present aiding and abetting the murder of. I confess that lean not reconcile myself to hear you argue points already decided by the jury, an^ without at this moment expressing an opinion upon Mr. Solicitor's suggestion as to the propriety of at all entertaining a motion for a new trial in a case of felony, [ remark that, if permitted, it must be argued on legal grounds, and not upon matters ol fact, for they were never within the sphere of our dictum; they belonged to the jury, who have de- cided ujpon them according to their judgements and consciences ; we tiaVe ^ecqrded their decision^ (3*) The grounds which I have the honour to submit, in sup- port of the twit motrons which we propose to lay befure (lie Court, namely, for a new trial, and in arrest of judgement, ate several, and, with the permittsioa of your honours, I pray yout attention to thos« I shall producie, to induce you to grant the pri- soner a liew trial. ' In the (u'sji place then, I say, that the priiiuii- er'ii confession before my Lord Selkirk ought nut to have been received. Secondly, I submit, with the greatest deference, that tlie Cuijrt misdirf^cted the jury with respect to the boundaries of th^ province of Upper, Canada ; and thirdly, I maintain that (he jury ha've' found that the prisoner assisted Af ainville to kill (hoen keyeny, contrary to, or rather without any, evidence, inasmuch as the officer* of the Crown have nut put in proof that Keveny k actually dead, nor that it was Owen Keveny, who was killed by Mainville. These are the means by which I propose to support the motiuo for s iiew' trial. :)03 » hear evtain- lirectly ie jury. J felony id for*? ia\ly ile- pfisoncr jrder of. f to hear jury, and nion upon riety of at I in a case it must DC matters ol aereofour ,o have de- udgeinents i\r d^cigioni and we have no right to meddle with it. As to the confession, you nave been heard upon it, and the Court solemnly pronounced as its decision that, as evidence at common law, it was admissible, and could not be withheld from the jury, it, therefore., went to them, and in the exercise of their discre- tion, thej have, unfortunately for the prisoner, believed it. Under tnese circumstances, K think, it is going tor far to endeavour to support a mo" tioB tor a new trial, by iMlHing upon us to say that iu so deciding we acted- contrary to law. As to entertaining a motion for a new trial, I repeat, at pretept J give no opinion^ " JlH^rnty-GeneroL — [ heg permission of the Court to contend, before my learned friend resumes his observatioos, (as it may save time,) that in receiv- ing a motion for a new trial in this case, we are acting in contradiction to first principles. This is a case of felony, and your honours know that it is settled, beyond dispute, that no new trial caii be granted in cases of felony. I find no authority which goes the length of saying that a new trial can be grafted, in a case of felony, under any circumstances. T1^3 attainment of substantial jus* tice, your honours know, is not a principle by whichaCQurtcan be altogether governed in grant- ing or refusing new trials. JLw coft- w jory. )t grant- il it fur- that no tFearn's verruled. t the solfc g of new a defend- the jury b\c failure ant anew endant be rh against Uanceofa je, but the execution, rown " an^ refore, thai gnewtriaU ce, and so oity on the jt upon the g, page 638, I as defend- iminal cases, le neceflsary re could not Bvere ckarly feodanti bad (^ been iiripropcrly convicted. Bnt I think the ^* rule was correctly stated by the counsel for the ^* defendants^ that in granting new trials the Court '^ knowB no limitation, (except in some excepted «* cases,) but they will either grant or refuse a *» new trial, as it will tend to the advancement of «« juEttice. In one class of olfences indeed,^' his lordship adds,*^ those greater than misdemeanors* *' no new trial can be granted at all.*^ After citing such an authority as my Lord Kenyony I consider it unnecessary to trouble your honours further, as RO argument o( mine can^ by possibility, add to the decision of so learned a judge. I proceed to remark relative tp anQther of my learned friend's proposed points, which I consider it would be equally inexpedient (or the Court to entertain, viz. his objections to the want of proof of the baptls- mal name and of the death of Kcycny. They are circumstances involving in them matters ot fact, upon which the jury have givep us a decision, by which we are bound to abide. If their decision is wrong, there is another quarter in which a repre- sentation can be made, and if proper that it should be so, will no doubt be made wjth success. A word as to the confession before Earl Selkirk, which my learned friend states to have been irre- gularly received. It was not put in as a confession made before Earl Selkirk, it was undoubtedly of- fered as such, but was refused admission, except as a piece of evidence at common law. The Court decided, after hearing the learned gentlemen a- eainst it, that it must be so received, it is, there- lore, useless to argue uppn that point, as I take it your honours W|ll not i)e disposed to listen to an argument ag^iiist your own decision, whilst, as io the jury convicting against, or without, evi- dence. It is equally unnecessary I should trpuble the Court, aa I consider the motion that position Vij h ' .! ^Hi I '..J?' )« IS sm ■. \m \ ill 'Jj 4M «r-wff cli was intended to support, viz. one for a new trial, must bo refusftd to be beard. I beg to refer to another authority upon this point, 13^ East^ page 416, the King versus the Inhabitants of Oxford, in a note,(b) *^ In capital cases at the assizes, if ^ a conviction take place upon insufficient evidence, ^* the common course is to apply to the Crown for ^ a pardon, upon a full report of the evidence sent ^ in by the learned judge to the secretary of s4ate *^ for the home department, but I am not ^yvare *^ of any instance of a new trial being granteid io *^ a capital case, and upon the debate of all the ^judge's in Margaret Tinkler^ case, in 1781, it *^ seemed to be considered that it could not be/' Under these authorities, which, for the sake of preserving regularity, 1 have produced as con- clusive against receiving a motion for a new trial, I presuioe tho gentlemen will be compelled by the Court to restraui themselves to the motion in arrest of judgement. J\Ir. SluarU — With permission of the Court, I will state very summarily the ground proposed to be occupied by the prisoner's counsel on tnese mo- tions, for I bipff to say that I consider it by no means a settled point that a motion for a new trial can not be entertained and granted in a criminal case, such as the present. It is true that, as tli« learned Attorney-iGeneral has shewn, there is a dictum upon the subject — — Chiff Justice SewelL — ^Allow me to interrupt you, Mr. Stuart, to say that we will hear you fully on every point which consistently with Qur duty we can do. You know we should be sM to near you on every point, which your jua8;e- ments consider it to be your duty to urge on be- half of this unfortunatej>risoner, but the solid, le- gal points iu arrest of judgement, must not be confounded with reasons to suspend the execution r IriaK Bfer to U page Oxford, lizes, it* ridence, -own for nee sent of ftlate it flmvare raatejd in f all the 1781, it not be.'* ) sake of \ as con- new trial, led by the »n in arrest 507 of the judgement, as they must be addressed to another quarter. It is not necessary to determine at the present moment, how far a new trial can be granted in cases of felony. We will hear you fully on the grounds of your legal, indisputably legal, motion, that in arrest of judgement, and in- cidentally, or by the way side as it were, you may touch upon other matters. If you exceed legal bounds, you must of course, be stopped. I think this course will save much time, and enable you, gentlemen, who are to support the motion, to fully attain the objects you have in view, with^ out trenching on what appears already to have been fully considered, and, in fact, determined. JUn Vanfelson' — l^on^^, 8*\\ plait a la Cour, sur ma motion en arret de jugem^int. je soumets deux propositions. Que cette Co ir n^a pas aupune ju- risdiction, ou pouvoir de pr^.^dre < v^nnoissance dos offenses commises dans !e territoir : ijauvage sous lu statut du 43me. du roi ; et *l"^^^K Que. s la Cour pouvoit prendre connoissano d*aucune olfense, elle n*a pas pouvoir de faire le proces pour auci^ue fclonie. Premierement done, je di^ que cette Cour ne possede point le pouvoir de prendre con- noi&sance des ofienses corori'ses dans le territoiro S^uvage. Cette proposition est une proposition generale. Je dis, generalement, qu'une Cour d*0- jeret Terminer ne possede pas originairement au- cune jurisdictiori pour preddre connoissance des of- ienses como)ises ^^n'*'; le territoire Sauvage, et que le statut du 43me. du roi ne la donne pas a aucune Cour de la province du Bas Canada, mais aux Cours. Dans la [.rovtnce du Bas Canada, le pouvoir de juger des crimes et ofienses commis dans le terri- toire Sauvage, est donne aux Cours usueilcs^ aux Cours ordinaires.—II est bien connu que Ic statut du 34me. du roi couimunement appel^ *' Facte juridique,'' s^pare la province du pas-Canada en t , * ■ iV ,< •'11 V,'} mi m ' ii% 508 '''i§ '■"&-'^'» i% M '^' tfois paHfl, nominees districts, et dans chaque dig^ trict il Alt ^tablie une Cour. Ces districts sont, Ic district de Quebec, le district de Montreal, et Ic district de Trois Rivieres^ et je sQumets a vos hon- neurs que o'est dans les Cours de pes districts que nous trouverons les Cours de cette province du Bas Canada. A pr^sept regardons pour un moment a Facte de Fannie 1803, et nous verrons qu'il s'y trouvera deun ou trois choses tres remarquabies* Lisons premierement le titre et le preambule de cet acte et comparons ies avec le statut du 34Q]e. du rol, cap. 6.(") Tbe act is entitled, ^^ an act ^ for eitending the jurisdiction of the Courts of ^'justice of the provinces of Lower and Upper *^ Canada to the trial and punishment of persons (3*^ Then, may it please the Court, upon my mption in ar< rest of judgement, I submit two positions. That this Court has not anj jurisdiction or power to take cognizance of offences com- nitted in the Indian territories, under tbe statute of the 43d of tbe king, and secondly, that if the Court can take cegiiiz .nee oi any offence, it has not the power to try any felony. lo thefi^^ place, therefore, I say that this Court does not possess thn rigtit to take cognizance of any offences committed in ihe Indian ter- ritories. This position is a genera! one. 1 say generally that a Court of Oyer and Terminer does not originally possess aojr jurisdiction to take cognizance of offences committed in the In- dian territories, and that the statute of the 43d of the kinj; does not give it to any Court of the prorince of Lower Canada, but to the Courts, The right of trying, in the province of Lower Canada, crimes and offences, committed in the Indian territories is given to the wual Couriit to the ordinary Courts. It is well known that tht statute of the 34tb of the king commonly called the ** judicature act," divides the province of Lower Canada in* to three parts, called districts, and a Court was erected in each district These districts are, the district of Quebec, the diitrict of Montreal, and the district of Three Rivers ; and I submit to TOur honours that in these dtstrict-tlourts, we must recognize tbt Courts of this province of Lower Canada. Lvt us now look, for a moment, at tbe Act of Ihe year 1803, and we shall see that it contains two or three very remarkable thin£s. Let us first read tbe title and the preamble of this act, and let us compare then with the statute of tbe 34th of the king, cap. 6. .^ 509 ue d'u^ lont, le I, ei Ic 08 hon- icts que i du Bas oment a qu'il s'y •quables* nbule de lu 34Bie. S^ an act Ilia. ••• lotheM 5ses« thp T'.gbl ihe Indiack ter- gcncrally tbat y jKwsess aojf Ued in Ihe In- f Ihe kins; Am ,r Canada, but TiDce of liO^«» idian lerritone' .tU. ll»^«" ^mmonly c»lW ,wer Canada in- creeled in each bee, the dirtrict ,nd I w^*"'* ;^ istcecogniiew u. row look, fot •bill iee that it Ut u» firtt J*i 18 compare tb«» t* guilly of cnmes and offenceg within certain ptirii ^ of North America, adjoining to the said prorin^ ** ces/' This act was passeain the year 1803, or the 43d year of his Majesty's reifn. The pream- ble fully explains the occasion of passing the act and its objects : *^ Whereas crimes and ofiencea ** have been committed in the Indian terrrtories, *' and other parts of America, not within the limit* •* of the provinces of Upper or Lower Canada, or ** either of them, or of the jurisdiction of any 6( the ** Courts established in those provinces, or withini *^ the limits of any civil government of the United *^ States of America, ana are therefore not cogni* ^ zable by any Jurisdiction whatsoever, and by ** reason whereof sreat crimes and ofiences have ** gone, and may nereafter go, unpunished, and ^ greatly increase/* Ici nous voyons le mal auquet C6t acte pourvoit le remade n^cessaire. C'estce* ci, que dans le territoire Sauvage des grandes of- fenses ont ete commises, et par raison qu'il n^ a- toit point de jurisdiction possedant le pouvoir de faire le proces a ceux qui avoient commis ces of- fenses, lis se sont ^chappes de punition, et qu'on continueroit d^^chapper sans punition si ce n'eut 4te que le parlement eut passe cet acte.(**) The preamble tlius sets forth the nature of tne remedy intended to be applied by the act : ^ For remedy ^ whereof, may it please your Majesty, that it may ^ be enacted^ and oe it enacted by the King^s most ** excel lept Majesty, by and with the consent of *^ the Lords spiritual ami temporal, and Commons^ (**) Here We perceive the evil for Which (his act prorides the lemedj required. It is this, (hat great offences had beea comraitteU iii the Indian territories, and on account of there be- ing no jurlsdfttioii possessing the power of (r)ring those who bad coininided those offences, they had escaped punishment, and would have continued to escape with impunity, if the parliaoaeat bid not passed thi^i act. ■ ' Mm 1 ,, <#' ■,''.'..'4 5i6 '^ in this present parliament assembled, and by ttic ^ authoritj of the same, that from atid after the *' passinc of thi^ act, all offences committed within " anj ofthe Indian territories or partd of America ** not within the limits of either ot the safd provin- •• ces of Upper or Lower Canada, or of anj civil " government of the United States of America, *^ shall be, and be deemed t6 be^ difences of the ^ same niiture, and shall be tried in the same man- ** tier; and subject to the sam^ punishment, as if ^* the same had b^cn committed within the pro- " i^ioce of Lower or Upper Canada." Vbila Fe tJtre et \& pr6arobule de Facte, et sori bbiet se lajsse bien appercetoir pai Pexplicatioil qu on en donne» C^est pour donner aux Cours des provin- ces du Bas et ad Haut Canada, Tautorit^ de juger lea crknes et ofienses conimis dans les pays Sau- vages d^ la m^me maniere que s^ls avoient cid commis dans Tuneou Tautre de c6s provinces; car par cet acte il est declare quails seront, et seront estimes ^tre des ofii^nses de la meme nature, et ' seront sujets a la meme punition. Mais aupara- vant da regarder A Pacte jufidique^ informons nous qu^est ce qu^on dit touchant les Cours des deux provinces, et nous le trouverons dans la troisiuoif^ section de Pacte, faquelle je pfendrai la libertc de lire.(*') " And be it further enacted^ that (**) That is the title and Ibe prtamble to the act, anil Us ob- ject 15 perceivable by \hk Explanation which is given of it. Il is to give to the Courts of tfie provinces of Lower and uf Up- per Canada, authority to try the crimes and offences committed in the lidian territories in the same manner as if they bad been committed in one or the other of those provinces, for, by tliit act, it is deehred that they ** shall be, and be deemed to K ** offences of the same nature, and subject to the same puni»h- ** ment." But before we look at the judicature act, let us en- mine what is said concf^rnini; the Courts of the two province, and we shall £nd it in the third section of the act of the 43'J o^ the klngf which I will take the liberty of reading. M r ir the meiMcu pTovin- ly civil mcrica, of the 16 man- nt, as if the pro- Vdila le dbiet se qiron en (sprovin- t de juger pays Sau- roient et6 inces ; car et seronl . rtature, el is aupava- mons nous deft ^eux troisi^o**^ la Ubertc icted, that 311 i« every such offender^* (that is offenders conveyed according to the provisions of the foregoing clause of the act to this lower province to be dealt with according to law) ** may and shall be prosecuted *^ and tried in the Courts of the province of Lower *^ Canada/' Je prie Pattention de la Cotir a ces z;4ois, *^ may and shall be prosecuted and tried in *• the Courts of the province of Lower Canada.** - C^est dans les Cours non pas. dans la Cour, C'est Us Cours (au pluriel) de la province. Quellei. Cours? assuremcnt les Cours des trois districts de la province, les Cours de Quebec, et de Mont- real, avcc la Cour du Banc du Roi ordonnee a etre tenue a Trois Rivieres, lesquelles ont etc etablies par Tacte du 34aie. du roi auquel nouf regarderons tout a Theure. Ensuite cette section (lit,(**) " or if the Governor or Lieutenant Go- *^ vernor, or person administering the government '^ for the time being, shall, from any of the cir- ^ cumstances of the crime or offence, or the local ituation of any of the witnesses for the prose- ^cution or defence, think that justice may be '^ more conveniently administered in relation to *^ such crime or offence, in the province of Upper *^ Canada, and shall, by any instniment under tho ^^ great seal of the province of Lower Canada, ^ declare the same, then that every such offender ^ may and shall be prosecuted and tried in the ^ Court of the province of Upper Canada, in which " crimes or offences of the like nature are usually % u :*,''■''! m «,'i il. (") I praj fhe aUenHonoftbe Court to these worJ«?, ••nwr ind shall, &c." It in said in the CourU, not the Court. It is thV Ctmrts, (in the plural,) of the province. What Court)? Assur- «JMhe Couiis of the three districts of ibe pro%ince, the Court4 ofQiiebcc, and of Montreal, with the Court of King*s Bench di<, i»cted lo he held at Thwc Rivers, which were established by ^ Cours, dans Ics districts respectifs susdits, auront une jurisdiction originelle, prendront connois- sance, ouiront, procederont, et determineront '' dans le roaniere oi-apres statuee, toutes causes '^ tant civiles que criminelles et dans lesquelles le *^ roi est par tie, except^es celles purement de ju- '^ risdiction d'amiraute, et celles que sont ci-apr^s ^^ excepiees et pourvues fK>ur le distHct inferieur ^' de Gaspe, conime partie du dit district de Que- ^* bee. ' La section prochaine etablit des term^s pour les procedures criminelles a Quebec et -a Montreal ; ^^ Ct pour Tadministration de la justice ^ en affaires criminelles, it est de plus statue par la ^^ dite autorite, qu'il sera teoues par deux ou plus ^ des juffes de la dite Cour du Banc du Roi, un ^' desquels sera toujours le juge en chef de da ^* Majeste pour la province, ou le juge en chef du ^^ Banc du Roi k Montreal, dans cbacun de susdits ^ districts de Quebec et de Montreal, deux ses- ^^ sions de la dite Cour du Banc du Roi par chaque ^* annee pour prendre connoiasance de tous crimes *^ et offenses criminels aux tems et lieux ci-apr^s "* mentionnes,'^ qui aont bien connus. Ici nous voyons quelles soot les ^ Cours usuelles^^ de la KK i^fl 1/4 •ft' \ ■ ■■ • 'PI! trjji 514 M province du Bas Canada. *^ Les Cours du B- . the fottowwg lat ^^iy^ the eiUWi* ** fender tried nngd convicted under this act shall be ^ liable and subject to such punishment as may hj ** any law in force, in the province where he or «* she shall be tried, be inflicted for such crime or ** offence,'' ^^ and such crime or offence may and it •I meat of Courts of King's Bench for the districts of Qjiebec and Moptreal, in these words, ** And be it further enacted by the authority aforesaid, that there shall be constituted and erected ' in each of the said districts of Qpebec and Montreal respect* ively« a Cmirt to be called the Court of King's Bench ; that '< the Court oi King's Bench for the district o< Qjiebec shall con> •» sist of bis Majesty*8 chief justice of the said Court and three •« puisne justices ; and tbe Court of King's Bench for the di- '< strict of Montreal shall consist of his Majesty's chief justice of ** the said Court and three puisne justices ; and that the said •< Cou|l8 in the respective districts aforesaid shall have original '* jurisdiction, or lake cognizance of, bear, try, and determine, '* in tbe manner hereiuafler enacted, all causes, as well civil »s <* criminal, and where the king is a party, except those purely " of admiralty jurisdiction, and such as arc herein after except- •* ed and provided for the inferior district ot' Gasp^, as part of '^ tbe said district uf (Quebec. -' Tbe next section establishes the terms for the crimininal sessions at Qjjebec and Montreal. '* Aqd (or the {administration of justice in criminal cases, it is '* further enacted, by the authority aforesaid, that there shall '* be held by two or more justices of the said Court of King's *' Bench, one of whom shall always be his Majesty's t:bi«f jus- *' tice of (he province, or tbe chief justice of the Court of King's " Bench a( Jilontreal, within each of the aforesaid districts of '' Qpebec and Montreal, two sessions o^'the said Court of King's ** Bench, in every year, for the cognisance of all crimes and *<• criminal ofiencev at the times and places hereafter mentioned,'* which are well knotvn. Here we perceive what are the usual Courti of the province of Lower Canada. The Courts of King's Bench for the districts. But I ought before this to have n^en- tioned the establishment, by the eleventh section, of two terms of tbe Court of King's Bench for criminal and civil causes at Three Rivers, and the powers attributed to \hfi judges there, whjch are exactly the sam^ yrith those of the other districts. — " And whereas it will contribute to the ease and convenience of *' bis Majesty's subjects residing in tbe district of Three Rivers, " that all causes relating thereto be there decided ; be it there- " fore enacted, by the authority aforesaid, that there shall be " held at the town of Three Rivers, for the district of Three '' Rivers, by two of the Justices of the Court of King's Bench *lil .» K' 'VV^ M ■ a 518 m ^ Bhall be laid and charged to have been commit • ^ ted within the jurisdiction of said Court, and ** such Court noBj and shall proceed therein to *' trial, judgment, and execution, or other punish- ** ment, for such crime or ofience, in the same 4« »•< <( 4» «( *( km ; for the districts of Qp«b«c and Montreal, nnd the provincial ** judge to be appointed for the diRtrict of Three Rtveir, h ** Court of King's Bench, to sit in two lerni^ every j'ear, lliAt *' is to sa/i' from the thirteen th to the last day of each of the ** inonliis of March and September, both days inclusive-, (Siin^- ** days and holydays excepted) and during the four first juridical ** days of each of the said terms, i the said tm> justices and pro-' vincial judge, or any' two of them, wilh the chief justice of the province, or the chief justice of the Court of King's Bench ** at Montreal, shall have cognizance of all crimen iind criminal ** oflTencee, &c/' • Here follow the provisions which are wpII known, wilh regard to the s|)ecies of actions over which the rigU of taking tfngnizance extends^ and with regard to the return days, and the section finishcit thus : ** and the said Court of *' King's Bench, to be held as aforesaid, at Three Rivers, and ** the justices' and provincial judge eomposing the same, or any ** of them, shall have, within that district, both in and out trf Court, the same powers and authorities in all cases, as are granted by this act to the Courts of King's Bench of the dis>^ ** tiictsof Quebec and Montreal, and the justices thereof or anr ** of them, in or out -of Court, or out of term." It is h#>re there- fore, may it please the Court, I submit, that we must seek for the iistMM criminal CoHrts of this province, and in one df which the prisoner would have been tried, if his offence had been com>- raitted within Ifae province. I know very well that his Majesty has the power of appointing Courts of Oyer and Terminer, and that the fourth section of this act provides for commissions of Oyer and Terminer in these words. ** Provided always, and ** it it hereby enacted that nothing in this act contained shall ** extend, or be eonsthied to extend, to prevent the Governor, ** Lieutepant Ck>vemor, or person administering the government ** of this province, for the time being, from issuing at any time <* or tiroes,- other than during the sittings of the said terms, com- ** missions of Oyer and Terminer and general gaol delivery, for <* such district and county within ' this province, as shall be « deemed expedient and necessary/'- ^ We say nothing against this provision, we know that it is spe'tiaUy the prerogative of hi< Majesty, and of his representative, to originate commissions ol Oyer and Terminer, but I take the liberty of remaiking, gene- rally, that a Court of Oyer and Terminer and general gaol de- 519 , and ein to )un't8h- I same >rovintiai River», ii I* ear, Uwt xh of the Ive. (Sun- It juridicai (justice of in^'s Bench nd crimiita^ ch are wpM ich the ri?,lt , the return ,id Court ot (livers, and time, or any _ of the dis' lereof or anr is h*'Te there- DUBt wek for one bf which lad been com^ ,t hi« Majes'y erminer, and (inmissions ot jntained shall the Governor, ._ government Sat any tin>« terms, com- ,1 delivery, tor 8, as shall he lothing agaiwt •rogaliveofhw jomtniwwns ol narking, ^^' •neral gao* ^•• «• manner, in every respect, as if such crime or ^ offence had really hccn committed within the *A jurisdiction of such Court,'^ the act goes on to ipake full provision for the issuing subpoenas e a Court designatetl^ by the act of 1803. Let us look at the thir4 section of that ac^, and we shall perceive, from its provisions, the impossibility of a Court of Oyer and Terminer possessing aiitborUy to ^ry offences committed in the Indian ter- ritory, which is alone given to the Courts in wliicb offences of the same nature committed within the province, are usually tried. It is not only that, in speaking of Lower Canada, it is alw^ays said, the Courtis and tha,t, ijn speaking of Ifpper Cana- da, the Courtt is the term made use of, (although I regard tlial circumstance as very strongly indicating the views of par- liament^ but if we look farther to another part of this section, vre shall see that the intention of parliament is so clearly «>x* pressed, that it is not possible to mistake what is meant by the Cwrti of Lower Canada. ... ' ^'i*" ■ K 1 ' ■I if- ■'•* ^M r>ao f i X m <^ed StateB of America, as well a» within the liinit«: '♦ ofeither of the said provinces of Upper or ijower ** Canada, in relation to ''^e trial of anv crimes or ** offences by this a«.f . w Je cogrizaole in such •* Court, or to the mo- k^Aidiy and eO'ectuallj '* brinmng any oifendcrs to justice under this act ^^ as fully and amply as any subpoenas or processes ** are, within the limits of the jurisdiction of snch '* Courts, from which any such subpccnas shall have ** issued as aforesaid ; any act or acts, law or laws, ^ custom, usat^e, matter, or thing, to the con- *^ trary, notwithstanding.** En remarquant sur cette portion de Tacte de 1 803, je soumcts, nvec beaucoup de confiance, qii*une Cour d^Oyer et Terminer, manquant les officiers dont la troisieme clause parle, ne peut pas ctrc la Cour contemplee par les mots ^* the Courts of the province of Lower '' Canada id which crimes and ofiences of the like *^ nature sire usualfy tried,^ parceque nous apper- cevonsquc lie pouvoir est donne aux Cours o\i les juges president. CVst aux juges, par Tacte de 1803, de sortir legalement des subpoenas, &c. Dans cette Cour ci, je dis, (et je le dis avec le plus grand respect pour vos honneurs) qtie nous manquons de juges. Vos honneurs sicgent dans ce moment commo commissaires du Roi, et non pas comme juges. Done, a cause de cette circdnstance, cette Cour ci ne pcut pas etre la Cour usuelle, parce- que dads la Cour usuelle les juges president, et telte Cour la ne se trouve que dans les Cours du PancduRoi-O*) («*) Proceeding to remaik upon this part of the act of 18C3, I submit, with much- confidence, that a Court of Oyer and Ter- miner, not having the oflicers of which the third section speaics. can not be a Court such as was intended to be pointed out br the expression, ** the Courts, lie.** for we find that the povrer is given to the Courts in which the judges preside. It is the judges who, by the act of 1803. are legallj empowered to issue ih 521 iimitr. lower \e9 or I such ituaUy is aci »CCBSCS >f such W have )r laws, e con- mi 8ur s, nvcc Dyer et ro'iBieine itemplec f Lower r the like )S appcr- rfi oH les Vacte dc _jc. Dans lu8 grand ^quons de inoinent [s comwf ice, cclte c, parcc- Isident, et iCours du I acl of 1803. ^er and Ter- [ction speaki. linted out hj lat the pover le. It » the rcred to issue Chief dnnlicc SewelL — ^Wo hope, though joQ r]iifj»(ioti our power, you are not disposed to den/ Hint, in point of fact, we ^rejudget, Mr. ranfeUon, — Assur6raent non, vos honncurs. (a lavtrh.) Nous disons encore ou^une autre dif* terence entre la Cour du Banc du Roi et une Cour d^Oyer et Terminer, se trouve dans Fitendue de Tautbrit^ de Pune et de Tauti'e. II est n^cessairc a cette Coiir ci de s^assemhler actuellement avant qu^elle puiase agir. Avant de s^assembler, on ne peut pas meroe imaner un subpcena, et pourquoi ? parce- qu'iine Cour d*Oyerot Terminer manque dejuges. Let officiers d^une tefle Cour sont des commissaires du Roi, et leur autorite est dc peu de duree, et en m^me terns d\ine nature diflerente depuis le com« mencement jusqu^a la fin a de cello des juges. On pepeut pat emaneriin subpcena, et memc si on en sortit ayant de s^assembler, les commissaires n^oiit pas le pouyoir de forcer un temoin d^y faire atten- tion. On ne peut pas rontraindre un temoin de mauyaise yolont6. La situation de vos honneurs ne resemble pad a celle des juges du Banc du Roi. Votre autorite est comme la Cour elle-meme, de peu dedur^e, pendant que celle des juges de la Cour du Banc au Roi est une autorite pernrianente, et une autorite a'ussi puissante que permanente. C'est pour cela, parceque le pouvoir d^une Cour d'Oyer ct Termmer u^est pas continuel, ni as- iez ou suffisamtnent puissant pour enforcer ses Sroces de la maniere de la Cour du Banc du loi, et parceque les commissaires ne sont pas ^•ibpoenas, ke. Now, in the present Court, I s»y (and I saj it with the greatest respect for your honours) that we have tin judges. Your honours sit, at this moment, as his Majesty'.* commissioners, but not as judges. Therefore, considering this circomstance, this Court can not be the usual Court, because in a usual Court it is the judges who preside, and such a Court can «)fliy be found in the Courts of King's Bench. l:M r t , I • i\ >f ■ ft,. * 522 des juge8.(*') 1 mean need not be, or that, though judges, aa commissioners thej have not the power ofjudges,) que pous iOMmettpns qu'upe Cour aOyer et rerminer R'fSBt pM une Cour ajaot pouvoir de prendre connoissapcp dps pflfenses coipmises dans les territpires $auvage«, p^rcc^OMVll^ manque prcs- que fou« leii caracter^s def Pours us||e|ll^8• Je youdrojs encore remarqu^r qu^en faisap^ In clause pour Tf^pianation de commissippg d*Pyer et 7er< piiner, le parlement a marqu^ fli^tinctement la dif> il&rence entre les deux Cours. L» Cour du Pane du Hoi de chaque district est unc; Pqur PPH teule- ment permanente et puissante, |ni|ifi jppe Cour entiere ou complette dans elle-meme, ajant pou- voir d^executer ses jugemen?. Une Coi^r d'Ojer et Terminer est obligee, par la cinquieme section ^e Tacte juridique, de suspendre ** Pextfcution dq ** chaque sentence ou jugement de telle Cour, qui > ** s^etepJra a la vie ou mutilation, ou a aucunc 'i^m I '1 *'-ii i^ ■'■^ (*') Mr. V. F. — Certainly not, your honours, (a laugh.) We say again that ahotbei* diflfen'tice between the Court of King*s Deno^, and a Coi/rt cfOycrauil Terminer eiht);, in tLo extent of the'autbority of the one and of tbe otber. It xa neces- sary fur tlu> Court actually lo meet, before it can act. Before meeting it can not even issue n siibpoona, and why ? Because a Court of Oyer and Tcnniner has no judges belonging to it. The officers of such a Court, ar« the king's coi Mnissioner^, and lh«ir powt>r is of f4)ort duration, and at the same time of a dilTerriit nature from that of llic Judges, from the beginning to the «nd. A sub|;'*' raflmniistratjon du gouvernement de cette pro- ** vince, soit signili.'ie sur icelle, par ordre sous son ^^ seing et sceau :7 ct la sixieme section mon- iire encore |a difference. Elle ordonne la trans- mission des procedures des Cours d^Ojer et Ter- miner au'gOHverhcur, en certain cas, et ** non seu- ^ lement copies de rintjictement, information, ou (i charge, et de la defense et autres procedures ^ dans chaque cause devant elles; tnais aussi de •* Papper^u etsubstaucedes points admi&en preuve, '^etde leur charge aui jures, et copie c]u verdict, ucomme aussi de toute transaction importante ^^ dans la cause, avec tel|es observations nuelles •* pourront juger convehahle cje faire dan$ chaque ^ telle cause ou proces, le totit sous la signature ^' de la majorite des juges, devant lesquels tei i^ proces a ete pQrt6 ;? et les senles exceptions a cette transmission, se trouvcnt clans |es cas qui ne s'etendront pas ^^ a la vie ou mutilation, ou trans- *^ portation, ni a aucune peine, amende, ou con- <^ tiscationi plus forte que la sonipic'4c vingt^cinq ^ livres sterling.^* Sur ce chef (le roon argument en arret de jugement, que cette Cour pe peut pas prendre connpissance de ce cas, je seumets cjonc generalement QU^une Coiiv i'^Oyet et terminer ne pobsede point ae jurisdiction' qriginellc pour pren- dre connoissance cles bfienses comroises c(aiis le territoire Sauvage, et que le statut du 43tne. du roi la donne seulement aux Cours usuelles dii Bas Canada, et non pas a aucune autre Cour. Que les Cours usuelles au Bas Canada se trouvent dans les Cours des trois districts eriges par Tacte juridique, savoir, de Quebec, de Montreal, et cles Trois* Riviores; qu^une Cour d'Oycr et Terminer ne i.i (J , ■I «. ••I •"' , ■i ■i- ; i:. 'Of 'I •vfl ,1' i '%' m. 524 ^ s^accordn pas, dans sa formation, ni dans set pou- ▼oirs, avec ccs Coiirs usoelles, parcequ^elie man- que de jugcs, et la Cour n^e^t pas pcrmanente, ni fmissante, ni complette dans elle-meme, et que en Couri usuelles de la province se trouvent con- tinues et puiasantes, ct coniplettes dans elle-memes. Je me propose presentcmcnt (1q faire attention a la seconde partie de mon argument^ savoir, que si cette Cour a jurisdiction par c^essus quelques ofienscs commises dans ies territoires Sauvages, n^nmoins elle n'a pas le pouvoir de fajre ie proems pour aucune felonie. Cet acte du 43me du roi, cap. 138, en donnant pouvoir de juger des offenHes commises dans le pays Sauvage et endroits de rAm6rique y decrit, aux Cours des provinces du Canada, n^y a pas compris des fi^ionibs, et vu que c^est cet acte qvii etend la jurisdiction des Cours de Canada au jugemcnt des offenses commises dans h territoire Sai'vage, il faut regarderacet acte pour voir I'etenduc de Tautorite donnee. Regardons done a Pacfe, et nous trouvcrons qu^il donne de Pautorite seulcment dans Ies cas de ' crimes et des offenses, et non point de felpnie. Dans le pream- bule nous voyons qu^^ qui a donn^ occasion a racte est que vu que des crimes et offenses ont ete commis dans Ies territoires Sauvages, &c. pour y rcmedier. ** Qu'il plaise a votre Majesty, ^u'il '* puissc etre statue, et qu^il soit statue par la trcs "^ cxcellente majeste du Roi, par et de Pavis et *^ consentcment des lords spirit^els et t^mporeis, ** ct des Comnuins assembl«:^'8 dans ce present par- ^^ lement, et par la uite autorit6, (jue depuis, et " apres, la pnssation de cet acte, toutes Duenscs," (*•; the words in English are, ** all offences com- (*") It H <>i) thnt account, I sny, w^ juibmlt that a Court ol Oyfr and Torminer is not a Court having power to taicc cogniz •ntfi of i> focnmitlcd in the Iii-Jian territories, b^cau?* if 525 BS pOU- B man- jnle, ni et que ent con- -memes. sntion a oir, que quelques auvages, faiie le 43me du juger ties t endroits ivinces du et vu que , Cours de les dans U acte pour ilegardons donne de tnes et des le pream- occasion a ffenses ont J, &c. pour jest^i, qinl par la ires e Tavis et t^uiporels, csent par- depuia, et 5ffenses,^' nces com- L a Court ot lo takff cognii le«. bpcau^e i^ ** mitted within any of the Indian territoriefl, or ** parts of America, not within the limits of either *^ of the said provinces of Upper or Lower Canada, **> or of anj civil government of the United States of ^ America, shall be, and be deemed to be,ofiences of ia in want of almost all the distinguishing characters of th« usual Courts. 1 would further remark that in making provision for Courts of Oyer and Terminer, parliament has distinctly marked tlie difference between ihe two species of Courts. The Court of King's Bench of each district, is not only a permanent, and powerful Court, but is also an entire and complete one of itself, having power lo execute its sentences. A Court of Oyer and Terminer, is obliged, by the fifth section of the judicature act, to suspend the execution of '* every sentence or judgement of *' such Court, which shall extend to life or limb or to any nc« •' nalty, fine, oi forfeiture, exceeding the sum of twenty-fivo ** pounds sterling, until the approbation of the Governor, Lieu- " tenant Governor, or person administering the government ot *' this province shall be signified thereon, by warrant under his ** hand and seal at arms." The sixth section again displays the difference. It directs the transmission of the proceedings of the Courts of Oyer and Terminer to the governor, *• not only " of copies of the indictment, information, or charge, and of the '* plea or other {)roceedings in every .<>uch cause before them had, ** but tile scope and substance of the points ruled in evidence, and " of their charge to the jury, and copy of the verdict and of every ** material transaction in tht cau^e, together with such observa- " tions as they may think proper to make on every such cause *' and trial, and the whole under the signatures of the majority *^ of the judges before whom every such trial was bad," and4be only exceptions to such transmission are tucb cases as ** sliall *' not extend to life or limb or transportation, nor to any greater ** fine, penalty or forfeiture than the sum of twenty-five pounds *' sterling." Upon this head of my argument in arrest of judge* ment, namely, that this Court can not take cognizance cf this ca&e, 1 have thus submitted generally that a Court of Oyer and Terminer does not possess any original jurisdiction to take citgnizance of offences committed in the Indian territories, and that the statute of the 43d of the king, bestowed this jurisdic- tion solely upon the usual Courts of Lower Canada, and not upon any other Court ; that the usual Courts of Lower Canada must be sought in the Courts of the three districts, of Quebec, of Mon- treai, and of Thiee Rivers; that a Court of Oyer and Terminer does not accord, either in its formation, or iit its autnority, with 'h est donn6e,(*^) ** And be it further enacted that «* e?ery such ofiender may and shall, be prosccutcci *^ and tried in the Courts of the province of Lower ** Canadfll, (dr if the governor or lieutenant go- " vemgr, kc^ here follows the provision for 3u transmitting to the. Court of Upper Canada, whicii it is unnecessary that I should detain the Couii by reading, though in this 6hort sentence the phrase, ** crimes or oficnces" is twice made use of, **in which crimes and offences of the like na- ** ture are usaully tried, &c." In a subsequent part is not perdurable, nor powerful, hor complete in itself, whilst the usual Courls of (he province are permanent, poHeri'iil, ami complete in themselves. I propose now to pay, attciiijon to fhe second head of my argument, to >vit, that if the Court h.ii jurisdiction over .some offences committed in the Indian terri- tories, neviF)rth«l6»s it does nut possess the power of trying any felony. The act of the 43d of the king, cap. 138, in ^ivint^ the power of trying offences commiiteJ in the Indian (ei-ritorifp, and parts of America therein described, to the Courts of the provinces of Canada, has not included felonies therein, aii>^ tioce it is this act that extends the jurisdiction of the Courts vi Canada to (he trial of offences committed in the Indian territo- ries, we must look at the act to see the extent of the authority given. Looking therefore to the ^el we shall find that it givf» power euclutively in the case of crimes end offences, aiKi nut ot' felonies. In the preamble we see that what gave occasion tuthe Sict was, that, crimes and offences had been committed in tire Indian territories, &c.'* for remedy whereof, may it please your *^ Majesty, that it may be enacted, and be it enacted by the *' King's ntost excellent Majesty, by and with the consent anJ ** advice of the Lords spiritual and temporal and Commons in ** this present parliament assembled, and by the authority of ** the same, that from and after the passing of this act, all of- " fences" {*'') In the third section of this act the same description h given. 52^ •h" Courts, ioc«es'7„'it'7„7S«;''Pr this act" Dans C ^T J "?'*' cognizable '« mots me pa,x,K si ^Ti "^^ '''''«» ««=«« " d? plo. statue quK^, J'*^'^*' clief:« il^.j " Lieutenant Gou"en,e„^ t\ ? ^ouverneur, " yant I'administS "^.r, * '" P*"*"-^' a- ;;fa.p«.vi„ceduBasCan'rr n r**'"^ '"''''»" ^^ c.v,lmag,s,n,tesi.„djusScrM«'>n« to act a, of the Indian territories i^ l.u P*'"=«' '"^ «•»/ 'ons taken or g.Ven w iht^ih!"''^ "Pon informs' Lower or Uppir Canal „ ""'^ provinces of V nces, in anVLrt of ?be V.- ""* "'^ ''»'' ««'d pro of America 'a?oris:rttet"'°''^' ""-p^-^' hearing crimes and offences .^^^ '"P'"'.'' ""'j' of F«on or persons Sy of "„'°'"^'"'"« ""/ fence to safe c.!stody. &7 P„ ^ ?""« °'' »f- rkuse, en declarant qu^l J^T- ''''?' '" ""^'ne prendre devant Z^e Tlf '""" ''''"■'•«'«'• «» ««»ne susdit, o« J'aSrK°d" •'^'""'»'«'<"'^« Jetresurementcondui.eeJromehfi?''' °" '^"*^'- > la province du Bas Canada cl^ '=°'»'*"able, personnes coupabJe dWun in^,^"! PtT^onneon -— -. ^y^^ ^os honneui-s) et »-'"'«rC..,d,^ brcommfssicn Antler ^'..^* ''« pn^vince of un.ier uis iiaiid aiid seal, ic.** ,'!; .1 i : • ^' I >' , '• -it J I ?f "?^'^H'r' •^ ■ll k! 628 la d^etre livree a sure garde' pour et re (raitee con* forme a la loi. A present ne reste qu'a savoir, c(* que doit etre coDsidere par la loi comme crime ct offense? et assureihient il n*y a pas de diffiuDlte en disant que les malversations seulement peuvent etre appellees des crimes et offenses, et puisqun depuis le commencement jusqu^a la fin du statut du 43me Geo. III. ce sont les motd *^ crimes et offcn- ^' ses^' dont on fait usage, il est clair que la Cour n^a pas de jurisdiction sur aucune felonie commise dans le territoire Sauvage, miiis seulement sur les crimes et offences qui sont connus sous le horn de malversations ou misdemeanor^, J^ai prid la libcrte de dire que cette Cour, une Cour d'Oyer et Ter- miner, ne peut pa?, prendre connoissance d^aucune offense commise dans les territoire Sauva^es ei que si elle pouvoit en prendre U^aucune offense, elle ne le pouvoit pas d^aucune felonie, parceque les felonies ne sont pas consider^es en loi cotnoac des offenses. Pour soutenir cctte opinion je pro- duirai a vos honneurs une decision des douze juge« d'Angleterre tres recente, dans lecas d^un nommr Shawv qtti fut poursuivi sous Tacte du 42me Geo. III. cap. 85. pour un vol commis par lui dans PA- merique Septentrionalc, et les jurcs Pont trouv6 coupable. En arret de jugement il fut soumis par les avocats du prisonnier que la Cour ne pouvoit pas prendre connoissance sous les mots ^^ crimes ** et offenses commis dans i^Amerique'^ de felonies. On ne nioit pas que les Cours d^Angleterre posse- Jdent generaleinent le pouvoir de juger, aes fe- lonies ca pi talcs commises dans TAmeriquc sous quelques circonstances, r ^is Tindictement, etant ionde sur un acte qui donne seulement le pouvoir des crimes et offenses commis la, les procedures devroieni etre sursis. Je pense que la raison en est claire, c'est parceque les " crimes et offenses" sont des malversations ou misdemeanors^ et non pas 529 [C con* o'lr, e*- lime » 1 ulle eii peuvent pu'isqvio. latut (lit et offen- \a Cour icomnoise nt sur lea e horn tie lalibeile ,r et Tev- J d'aucune iuvages fci le offense, parceque loi commc lion je pro- louze juge* i'un nouimt l42aie Geo lui dans VA- I'ont trouv^ soumi* par ne poayoit ,^g fcfc crirMi de felonies. [terre posse- ger, des fe- \4rique sor.3 iment, etant ^t le pouvoir procedures lla raisonen et offenses , et nonpar des ieionies, et Milord Ellonborougli, le jiige en chef, en prononcant son iugcmcnt sur la motion a soiitonu la position dc monefeurSelwyn, Pavocat du prisonnier, que dans les cnoHs crimes et ojffhuesy dcK felonies n^^'toient pas comprises, et ne pouvoi- ent pas £tre jugees. Jl appert ainsi qu^on consid^re que les Coufs d'Adgleterre, et ces Cours seule- ment, possedent le pouvoii* de juger des felonies ('ommi^^e!) dans certaines parties de PAm^rique.-^ J'oi ici Ic rapport aii long du ces de Shaw, que je |)resi?nte li la Conr, et je crois que vos honncurn troDveront quo mon r^'cit est rorrect.(*'') (Tu'O looks were cffrrcd by Air, Vanfclson.) (*') Again, in rhn annie Miction, declaring that it shall be law- '* ftil foapprahrnd and take belbr<> anj person .10 commissioned " ?s ator^6aid, or V> apprehend and convey, or cause to be sai«* *' ly conveyed, with all convenient rpeed, to the province of ' Lower Canada, any person or persons guilty of any crime or " oiTence, there to he delivered into safe custody, for the pur- " pose of.beinfl; dealt with Dccnrding to lyr,** you see, your bpnours, that the .«»me words are made use of. Now aJ) that vre have to enquire is, what the law considers as a cringe and ofTencn, and certa'tdy there is no difficulty in saying that misde- tne»n'..r4 alone are understood by ctHmes and offences, and as from the beginning to the eftd of the statute oi the 43d Geo. III. (lie words, cnines and offences, are used, it is clear that the Court has no Jurisdiction over any felony committed in the In- dian territories, but only over crimes and offences which arc known by the term of misdemeanors. I have taken the liberty ofitaying that thi.'t Court, a Court of Oyer and Terminer, can not ttke co^rnizance of any offence committed in the Indian territo- ries, but that if it could take cognizance of offences, it could not of felonies, because felonies are not considered as ofiences. In ^up|H)rt of this opinion, I will produce to your honours, a v^ry. nxent decision of the twelves judges of England, in the case of a man nanie«l Shav\ , who was proceeded against under the act or42d, Geo. 111. cap. 86, for a theft he had committed in North America, e«nd the jury found him guilty. In arrest of judgment, Ihe prisoner's counsel submitted that the Court could not, under ibe wortU, »» crimes and offences committed in America," take cosnizance of felon ieA. It wan not denied that, generally, the Courts ot F.n;;lnniloing so was intended to be exclusively possessed by the Courts of the parent state, and their inten- tion is clearly manifested, I think, by the term . ^' crimes and ofiences^' being constantly used, which, '>. i... ■ inent b«ing founded apon an act which only gives power to try crimes and oftences committed there, the proceedings ought to be quashed. I think that the reason for this is plain, because .crimes and offences are misdemeanors, and not felonies; and my ' Lord £llenborough, the chief justice, in pronouncing judgement i»|)on the motion, conBrmed the position of Mr. Selwyn, counsel (ifor the pri'Mmer,4hat felonies were not included in tho term crimes and o0ences, and thcieibre r.ould not bo tried Thus it seems thnt the Courts of England, and those Courts alone, are consider- ed lo have authority to try felonies committed in certain parts of America. 1 have here the repurt at length in the case ol Sbaw, ..at the service of the Court, and I believe that your bonuuR -.will find that my statement is correct. 531 e glil^ Q some A' Lord Ih. vill find ; it cer- ^uasbed^ counsel rimes and Geo. Ul. ciblon was rdoni if ^ concluded » lo have V from the conjunclion 38, is, that jlonies was ovinces by Authority of t possessed their inten- jy the term used, which, accordhig to this late decision, does not include lelonies. Chief Justice Sewell. — This decision upon Shaw's ra^e goes no larther than to the individual act then bei'oie the judges. It was upon that particular statute that their judgement was given, and, per- haps, you have shewn enough to induce us to say that, Under that particular statute, crimes and of- iedctiHy did not mclude felonies. We should, I (luubt ^\oU be disposed to give a similar interpre- tation to the act of 4 2d Geo. III. cap. 85. but we should not go firlhor than that one act with you. We should certainly suy that the 'i2d Geo. III. cap. 85. could have no greater power than the trial of crimes that may bf; prosecuted by indictment and by information. It was in fact an extension of an act passed in ^yi^ William III. to other cases. The question Shaw's case hinged rpon was the point whether, in an act so constituted, felonies were included in the term made use of, and it was sftid by the judges, no; for this plain reason, fc- !onif;s can not be prosecuted by information. Mr, Vanfelson. — A present je soumettrai a la Cour dcs moyens pour suspendre le jugement, si vos honneurs ne m'accordent pas que j'ai suffisam- ment etabli la motion en arret de jugement. Peut- fttre quails ne sont pas 6troitemenl en regie en ar- ret de jugement. JVIais, avec la permission de la Cour, je me propose de les presenter incidcmment. La premiere remarque que j'ai a soummettre est cellc-ci; que la coniession du prisonnier prouvee par le docteur Allan n'est pas une confession fon- dee en droit, et ne doit pas etro regue. Je dis, regardons a cctie confession et nous verrons que c^est une confession avec toute la formalite du sta- tut de Philipe et Marie qui dit que, dans aucune fe- lonie quelconque, ^^ le magistral devant lequel au- *' cuue personne sera prise pour manslaughter ou ,*t 1 !■ -i 'I i%\i^^' % ^ ,jJ2 ^ telonie, avant qxid commette raccuse, le icra ** examiner et prendra IVxamcn de tcl prisonriicr^ " et rinformation de ceux qui l^apportent concer- ** nant le fait et les circonstanccs, et les mCmes, on ^^ aiJtant d^celles que sera d^mportancc, en preuve *♦ de la dile fclonie, (cr^ mettre on ecriture, dans *^ deux jours apn's la di^) examination, et la meme " ecriture sera certifi^e de telle manierc et forme. " ct a tel terns qu'elle anroit et6 ou devroit etre faite, si tcl prisonnicr nvoit etu cautionne/' 6lc. &r;. Voila la description iPun examen sous Pactc du 2 et 3 Philipc et Marie chap. 10. Regardons dory; encore cettc confession et nous troiiverons y de- dans toutcs les formalites, que le statut a prescrit. Toutcs les formaJites, dis je ? Nous y trouve rons plus que toutes. Dans I*anxiet6 de la Cou- ronne pour icndre cette confession plus forte, les temoins ont ^tc produits, mais je soumettrois :\ 1:^ Cour que cette circonstance devroit piritdt la dc- trUire cnticrement, en autant qu^elle etoit original- reroent uno confession conforme aux loix du I et 2 et du 2 et 3 de Philipe et Marie, qui ordorinent que la confession ou examen d*aucune |)ersonnc accus^e de felonic, sera mise en ecriture et certi- fiee par le magistral qui prend Texamen ; elles D^ordonnent pas que des t^moins la certificrontt mais qtie le magistral la certifiera. Je dis done que cette confession 6toit une confession formclle, et auroit du etre prouv^e par le magistral qui Tavoit prise, ou qu ellc ne devroit pas avoir ete re^'uo par la Cour. Mais il sera dit par mes sa- vans confreres, les avocats de la Couronnc, que la confession n^a et^ re9ue par la Cour que comme une confession priv^e, et non pas sous le statut. •/l/r. Justice Bowen, — La Cour I'a re^ue commc un papier prouve d^etre dans Pecriture propre du prisonnier, et par lui livre au Comte de Selkirk : ci Ta re^u en droit commun. rj'33 n'lsoniiicr, [it concer- niCnies, on ,enpreuv«^ ilure, dan^ et la meme c ct forme, levroit etre 16," kc. k(' , Tactc du 2 irdofis doiv' rerons j de- nt a present. ,us y trouve- 6 de la Cou- i\ii8 Ibrlc, loi iinettrois al» p\«t()t la dc- etoU originai- loix du I et 2 nui ordonncnt June i^ersonnc Store et certi- pxamen; eUcs [la cerlificronU Je dis done ssBion formcUe, magUtrat qvu pas avoir ete JUparmes sa- [Couvorne, que our que comme 0U9 Ic statut. [a recue comtnc ture propj:^ J" Ltedl Selkirk: Mr. Vanfelson, — Oui, votre honneur, inais Tar- gunient que je soumets tres humblemcnt sur icelle est ceci, que vu qu^clle 6toit vrairment une confes- fiion formelle, elle rie devroit pas avoir 6t6 ainsi re9ue, et dc plus, que la reg;le cle la loi, qui cxiec toujours la meilleurc evidence, fut negligde en la rccevant ainsi. Admettons, pour un moment, quo la confession iikt ofTcrte en droit commun, dans co cas nous aurions dit, non, cette confession, ce pa- pier, ou par quel nom que vous voulez Pappeler, no pent pas ctre re^u, ou prouvc, par le aocteur Allan, pour cette raison simple, qu^il n*est pas lo meilleur t^moin de la circonstance, et la Cour exigo l^meillr evidence. La confession n'avoit pas etc faite au docteur Allan, le papier n^avoit pas ote livrc au docteur Allan; non, la confession iut faite, ct Ic papier fut livr6, a Milord Selkirk; done on ne pr6tendra pas que le docteur Allan est Ic meilleur temoin. CVst assurcment Milord Sel- kirk, qui est, dc notonetc publiqiie, dans cc mo< ment qedans la jurisdiction dc la Cour, ct auroit du etrp produit par la Couronnc. Commc il u rl6ja ^te reinarque, dans un argument pendant l«> cours de cc proces, il nc convicnt pas a messieurs ies ofTiciers ue la Couronne, de nous dire que nous nouvions Tavoir produit. C'etoit leur devoir de Ic produire, pour prouver cette confession, soit commc un magistral, soit commc la meilleurc cvi< dcncc en droit commun. Et jc prie ^attention dc vos honneurs a cette proposition que, si nous rc« l^ardons ce papier comme une confession sous Tacte, done nous disons qu'elle devroit ctrc prou- vee par le magistral, ou si nous le regardons comme une confession privee, alors nous clisons c'etoit Ic devoir des officicrs de la Couronne de la prouver parl'evidence de Milord Selkirk, parceque Milord ^toit le meilleur temoin, et a caUse de cc que Mi- lord n*a pas ot6 produit, le prisonnier est pris par ':.'u *.;^7I ' f". '• ,t •■■' ,(■• ;'.{•;' 'Ill- 'i.lti ♦I ^, IMAGE EVALUATION TEST TARGET (MT-3) k // // ^.<.^. ^ ^ <^ 1.0 I.I U2|28 125 |30 12^ 140 1 2.0 Fhc^ogFEqjiic Sciences CcHporation ^ ^\ ^ •'^ \ c\ 23 WIST MAIN STtiET WnSTfR,N.Y. 14SS0 (71«) 872-4503 v\ 534 surprise. Incidemment, je soumets que; la mort actuelle n^a pas ele prouviee, et aussi que si un nomme Kevcny a cte tue qu*il n-est pas prouve que c'^toit Owen Keyeny. Le nom de bapteme n'est point du tout prouve. Les temoins ont parle de Kevenj, majs n'ont pas dit pu;en, plus que Jacques^ ou Jean, ou Pierre ; c'est simplement d'un nomme Keveny, quails jparlept. La cpn(ession porte O. Keveny ; non pas Owen plus que Olivipr ; done je dis qu^il n'y a pas un syiiabe de preuve que Owen Keveny etoit celui qui fut tue. - ^\ nous nous trouvons forces d'adroettre qu"*!! y ayoit quelqu'un nomme Keveny de tue, le seul temoignage air su- jet du nom de bapteme nous induiroit a croire qu^ Je monsieur au service de la Compagnie de la B^ie d^Hudson qui a ete tue portoit le nom d^ Olivier. (^"^ (*•) Mr. V. F. — I will now submit lothe Court the molives for suspending the judgement, if your honours will not allow that I have sufficiently established the n^otion in'arrest of judge- ment. Perhaps they may not be strictly applicable to go in ar- rest of judgement', but, with the permission of the Court, I pro- pose to go into them incidentally; The first remark which I shall submit is this. That the confession of the prisoner, proved by Dr. Allali, is not a confession in law, and ought nut to be receiv- ed. Let us look at this confession, and we shall see that it is a confession made witlj all the formality of the statute of Philip and Mary> which says that, in any felony whatever^ the magis- trate before vrhoni any person may be taken for manslaughter or felony, before he shall commit the accused, shall cause him to be examined, and shall take the examination ofsuch prisoner, and the information of those who bring him before him, as tQllie fact and attending circum«tances, and the same or as much of them as shall be of importance in proof of the said felony, shall cause to be put in writing within two days after the said examin- ation, and the said writing shall be certified in the same' manner and torm, and at such time, as the same would or ought to be done, if the prisoner were admitted to bail, &c. &c. Tbi.« is Ibe descriptioQ of an examination under t?^e act of the 2d and 3d of Philip and Mary, cap. 10. Let us again look at this confession, and we shall find it invested with all the formalities prescribed by the statute. All the formalities, do I say? We shall find more than all. The anxiety of the Crown to roiike this confes- r :n' L mort B s\ un prouve iapt,eme nt parle )Ui8 que lent d'uri ion porte cr ; done •euve que lOOS noiis quelquV"? age aU svi- croire qu^ de la Bai^ jrt Ibe motives vfiU not allow arrest of juagc- bie to go in ar- ;e Court. lpro_ rk which I shall wt, ptovedby lot to be receiv- IV see that it IS a statute of Philip tveis the n»ag>F- of mansiaughter shall cause h>m of such prisoner, l,it!hiiTi,ast()tlie [e or as much « said felony, s^a" the said examin- *he pamc manner L or ought to be 1 &c ThiPi»**^* [the 2d and 5d oj at this confess^" aliticl prescribed 9 We shall nna Lke this confer- t 535 Soliciior General. — I would submit that tlie tes- limony of Mr. Miles M'Donell so completely re- inoves all difficulty as to the person killed being, as be is named in the indictment, and as the jury, by their verdict, have declared, Owen Keveny, jfion stronger was such that witnesses to it have been produced, but I woyld submU to the Court that this circumstance ought rather ^vholly to destroy it, inasmuch as it was originally a confession according to the laws of 1st and 2d, and 2d and 3d of Philip saad Mary, whi':h direct that the confession, or examination, of any per^D accused of felony, shall be reduced to writing, and certified by the magistrate taking the examination ; they do not direct that the witnesses shall certify it, hut the magistrate. I say therefore that this confession was a formal confession, and ought to have been proved by the magistrate who had taken it, or that otherwise .it ought pot to have been received by the €ourt. But it will be said by niy learned brethren, the officers of the Crown, that (he confession was oniy-^received by the Court as an individual confession, and not one under the statute. jlfr. /. jB.—^The Court received it as a paper proved to.be in the haad-i!7/iting qf the prisoner, and by him delivered to the tarl of Selkirk ; and received it at common law. r Mr. V. F.-^Yes, your honours, but the argument which I very respectfully submit is this, that, seeing that this confession was in fact a formal confession, it ought not to have been receiv- ed at common law, and moreover that the rule of law which re- quires thdt the best evidence shall always be produced was dis- regaiJed when it was so received. Admit for a moment that the confession had been offered at common law, in that case we should have said, " no, this confession, this paper, or whatever "you please to call it, can not be received, or proved by Dr. " Allan, for this plain reason, that he can not be the best witness " to the circumstance, and the Court requires the best evidence." The confession was not made to Dr. Allan, the paper was not delivered to Dr. Allan; no; the confession was made, and the paper was delivered, to my Lord Selkirk, therefore i! can not be pretended that Dr. Allan is the best witness. It is most assur- edly my Lord Selkirk, who, it is a matter -of public notoriety, is within the jurisdiction of the Court, and ought to have been pro- duced by the Crown, ks it has been remark|3d in the course of an ai^ument which took place during this trial, it does not become the officers of the C«own 1o tell us that we might have lii'oduced him* It was their duty to produce him to prove this confession, whether as a magistrate, or as the best evidence at common law. And I beg your honour\<; attention to this posi- *;! yeV; i';.'<:, i'~T LllJJ^i: ■'-id 536 that doubt could Kardly be entertained upon the subject. Indeed, whatever might exist before th^ verdict, I should congider to be legally removed or set at rest after the recording a verdict finding the prisoner guiKj in manner and form as h^ wag charged in the indictment. >• . ^ Mr. Shiari.'-'l beg to remark, in reply to the Solicitor General, that we are addressing ourselves to the Court upon the law, and every thing con- nected with the record is a mattter of law. To his observations reilative to Mr. M'DotielPs'testimony setting at rest all difficulty upon the identity of the person said to have heeti killed, and the persorl once in the service of the Hodson^s Bay Company; I do not see that it can obviate even tpe smalliest. The utmost length Mr. M'Donell Went was, that a man named Owen Keveny was sotne time in the service of the Hudson^s Bay Company, and that some two or three years before,' he saw him, but has not since. How that is to remove or se^ iiside all, or any, difficulty as to the man killed not be- tion, that if w« look upon this paper as a confession under (be statute, we say, that in that case, it o'jght to be proved by the magistrate; and that if we look upon it as an individual confes- sion, then, we say Ibat it was the duty of the Grown officers to prore it by the evitience of my Lord Selkirk, because his lord- ship was the best wilnesii ; and inasmuch as his lordship has not been produced the, prisoner is taken by surprise. Incidentally, I submit that the actual death ha.s not been proved, and also that, if a man named Keveny has been killed, it>yethasnot been proved that it wa^ Owen Keveny. . The christian name has not been proved at all. The wilnesiies have spoken of Keveny, but have no more «aid Owen^ than Jamcs^ or Johtiy or Peter; it is simply of one named Keveny that they spoke. The confession has it O. Keveny ; not Oav/i any more than Oliver^ I say tliere- fore there is net a syllable pf proof that Owen Keveny was the man that was killed. If we ftud ourseH^s compelled to admit, ibat there was one named Keveny killed, the only evidence on the subject of the christian name would induce us to believe that the gentleman in the service of the Hudson's Bay Con»pany who was killed, bure the name o( Oliver. jn the [>relh^ jmoved finding h^wa£ ion «T»^e^ *^® jvroved by Ibe vidual confes- uwn ofRcers to cause bis M- .rdship has not Incidentallyi and aUo that, has not been name has not >fK6veny,but , or ?«<«»•» V^ Tbe confess''"" er, I say there- sveny was tUe .elled to admit, [\y evidence on ' loWievetliat Coa.rany wV.e 537 ing proved to he Owen Kcvcny, or how it has a 'tendency to shew that it was Owen Keveny, I confess [ can not comprehend. •' Mr. Justice Bowen.-^l confess I sit, and have for 'sometime sat, very reluctantly, to hear an argument bpon either point, as I consider them both to be settled in a maklner which precludes us from hearing thdipi namely, they have been de- cided by itie voice of the couptry, i;?hose peculiar right, indeed their eplusive fight, it is to decide. 'They baVe, in their verdict finding the prisoner guilty in manner and form as he stood charged in the indictment, Ueclarcd that Keveny is dead, and that it iyas Ou^en Keveny, whom the prisoner aided Matnville to kill, because the indictment charged hirn with' hai'in^ helped,' aided, and assisted, Mstinville, to kill Otvenr Kevenyi not Oliver^ or any othfer KeVeny,' but Oii;en Keveny. On the point of law involved in this objection, relative to the prbof or description of the deceased^s name, it is hardly necessary that I should say any thing, thinking as I do that we ought not to hear you onthiJpartof the subject at all. ' If there is a imateriai error, so as to rehder the indictment in- sufficient, the Court will feel itself bound to arrest the judgement. '^Put supposing that the question had been raised at an earlier period,' that the jury had not, by their verdict,' sm^'Oweti Keveny was killed, what would hav6 been the effect ? The object of description is certainty, and it might be a question whether the indictment is not sufficient for that purjpose.' It is hot an uncertainty as to the defenda^fit himself, ahd we know that it has been adjudged that an indictment for an assault, against John, parish-priest of D. in the county of G. is good, without mentioning his surname ; this is mentioned in 2rid Hawkins, cap. 25, sect. 1 and % and he argues if a wrongful surnad^e of the hi ^38 i ■ iof ml A* ,9 i1-! ■j;^ P. :';■ Ml' _ *; 1 i T: : ^^^^kMK ■f ml 11: |i mtwM HI ',;| f .j" ' J". ijili^ . Uefi^ndant himself will pot vitiat« an indictment ae hath been more fully shewn, section 69, surely a fortiori the omission of the surname of any other person will not vitiate it, espcciallj where such person is otherwise described with such qertaintj that it is impossible to mii^take him for any other. t merely mention this for yoqr consideration, but, returning to the quection of how far we ought to hear you at all, 1 am clea4'Iy of opinion that our entertaining it piust imply that we havq legal doubts of the correctness oi the jury's finding, that we consider it a verdiqt against evidetice, or con- trary to his honour, the chief justice's, directions; our hearing you certainly implies that doubt exists in our minas, now, if doubt docs not exist in onr minds, we ought not to hear you argue what the jury havfe solemnly decided, accorjdjng iQ rxij opinion. ' i, Mr, Vanfelson.—l submit to your honours that I am not beyond the legal right of argument uporj the point, and that it is one, which, in strict iegaj construction F am privileged to argue, and upon this ground, I would again argue, that the finding of the jury, Vi^ith po evidence of the actual death, is contrary to the opinion of thp greatest and sound- est lawyers that ever practiced at the bar or orna-r mented the bench. Lord chiefjusticeHaleis exceed- ingly pointed on this subject ; he says, vol. 2d, page 290. " I would r^eyer convict any person of mijr- " der, or manslaughter, unless the fact was pfbyed " to be done, or at least the body found dead, for " the sake of two cases, onq nientioned in my « Lord Coke, P. C. cap. 104, page i32, a War- *' wickshire case, which is mentioned in a note. " Thjit case was this, an uncle, who had the " bringing up of his nieCe, to whom he was heir " at law, correcting her for sprpe ofience, she was " heard to say, ' good uncle, do not kill Bie,' af- 639 lent as surely f other e &uch srtainty ^ other, m. but, light to hat our ing, that or con- rections ; ibt exists ist in our ivhat the g ^^ ^y lOurs that nept upon itrict legal and upon be finding Lual death, mdsound- X or ornar isexceed- il.2d,pagc ion ofmur- as proved . dead, for ,ed in >y ;2, a War- in a note. |o had the was heir ie, she was ill me,' af- •^ t^r which time the child, could not be founc^ ** whereupon the uncle was committed upon sus- *^ picion of murder, and admonished by the justices ^^ of assize to find out the child by the next assizes, *^ against which time he could not find her, b^ut ^^ brought another child as like her in person and '^^ yyas Received by a stranger, and af- *' terwardi?, when she came of age to have her ^^ land, came and demanded it, and was directly " proved to be the true child." ^The other is thus stated by the learned and venerable judge, " an- ** other that happehed in my remembrance in Staf- ** fordshire, wnere A. was long missing, and upon •* strong presumptions, !&. Was supposed to have f murdered him, and to have consumed him to " ashes in an oven, that he should not be found, " whereupoji B. was indicted o( murder, and con- " victed aqd executed, and within one year after, " A. returned, being indeed sent beyond sea by ♦' B. against his will, and so, though B. justly de- *' served death, yet )ie was really not guilty of *' that offence for which he suffered.'* Ces iueux cas induisoierit ce grand et tres savant juge* a dire que, dans un cas de iheurtre ou d'honiicide, W ne voudroit jamais condamner, a moin^'qu^ le fait fut absolument prouve avoir ^te commis, ou du inoins que le corps mort futtrouve.(**) • Mr. Justice Bowen, — Well, now apply your law (") These two cases induced that great and very learned ju^ge to declare, that in a case of murder or homicidt*. he would never convict, unless Ihe fact was absolutely proved to have been committed, or thait at least the dead body had been found. m m III f ' |; if*- > 540 ISfj • ri ■ 1 Kls'^m^: ■ , fii ?•. IVwhI jp', ' : III ' R:*a|' ?f '.■ ; • m 5 Hjij^ -^i nlJ^^ 1' B^» -^ 1. v.^i •• s . Hp/^flw ^HrH' c v.^^K^H H/'; YKu ,'Xi ^MB^^jKmPcM HIRwj^j^HH »' ''^' ■''; I^HV' ' V ^^B^^l K'v^'lji^' ' V ■■ ! ■ m Si ■ _ IE/>^9^ BBJ- J^nB K^^B' '^"'' K'Imm! WM %t' ^^B^w^BiH i.'^n /il"'j/^ ^K^nvS -^ 'fr'l' Kifll 8 T" '■ iPfml 9 f- Bft ■■'&' fiKwl f^m BBL' MtM^BffWM 4^m§ , P||h m |-'' ffiiUf^^H tJHf '^j f ^^mn IP' ,f !■ ■'mImImI i.'ijK ..'^ril hC^Bm 'im ^■'■'■•- tm'f^X^^^^UMBa ^^ vHe " i »-«9^^H ^fjW :'f'4_ P''1ImBpmH ^-wm fir/'':' ft^'Pfl^^H I^B '.^ir-'ii ■■p)f '■; ;f ^R ■^■■^ IV^ffl M. |,''' K|^|KipM :i^B, i;-*j[ • ■ ^'^^iBB^tM lb' ^'"^^ * ■■ 1:^^^^ fw ' ' P^^sH^ l^w ■,'■■ K jpJ3HK (MMpI ^■^^Sjl ;"i: kmkJI^B^hm S^bH' <'^'''' PMflj^^p^ ^^H'' ''■'■«' yjpg^^i '^'W '■ ; ?$B ''^I^^^MB^^Q ;■ :'ffE& ■ " ■f'M 'sK^S^n f'i "Sffll' ■ ■'" ■ '''■'' Ui jBh^Ik(M ftj.-aff.; :,''>.'' ^wm^^H fejBf- [:.,:, ::, ifli^El^ ^w' I ''-^i m^P ^' ;';•!'■ '#ll^wW mm. ' ,'v Mi 'm f^ ^V^ mmm tlH^iJI^: F-^-.i '■)!!■ if-'-: I-- -^i/- !».• Af ^*f Hi ' " 1 ..*:s &-.>l J ».l. v*', : .-rU iR «?'.*,.■»•■ 3 gtSB '^^ '' HI H^^K ^ -''•:■' to the case before us ; you remember alsq thcrt are his own confessions. Mr, Vanfelson.— Out, ijoaisjedis que sa confes- sioB nVpas ete prouy^ selon les r^glea. (**) Haw- kins says, book 2d. cap. 46, sect. 44, "but if a " confession be not taken in writing, parole testi- " mony may be given of it, and the prisoner theie- " on convicted, although it is totally uncorrobo- " rated by any other evidence." Ici |a confession est ^crit, et je soumets que I'evidence verbalc dq* Pocteur Allan est contre la regie. Otez la con- fession du prisonnier, et il n^ a pa§ un syllabe de iemoignage de la mort de Keveny. Lies circon*. tances qui sont considcrees par Milord Hale comme necessaires deprouver, sont, la mort actuelle, par le corps ayant etq tpouve, ou que le meurtre ayQ ete yu quand il fut commis, et la sagesse de cette opinion est bien marqiier. par un cas qui se trouve dans Leach, torn. 1, Cas 127. C'est le cas du Roi contre Jane Warrickshallj dans une note; un ou trois hommes-— mais je le lirai. (") ♦' Three men ^^ were tried and convicted for the murder of Mr. *f Harrison of Campden in Gloucestershire. One *> of them, under a promise of pardon, coYifessed " himself guilty of the fact. Tne confession was *' not, therefore, given in evidence against him^j (*') Yes, but I say that his conlession was not proved in con- formity with the rules. (*") Here the confession was written, and I submit that the parole evidence of Dr. Allan is against the rules; now, if we fake away the confSession of the prisoner there does not remain a tittle of evidence of the death of Keveny. What my Lord Hale considers it necessary should be proved is the actual death, ei- ther by the corpse havihg been found, or the murder having been seen to be committed ; and the wisdom of this opinion is confirmed by a case in Leach, vol. 1. case 127. It is the case of the King versus Jane Warrickshail, in a note, a case where three men — but I will read It — ■.■Vit' m ih 541 ) thcrt confes- ') Haw- but if a )le testi- er thei e- corrobo- onfession rbalc dv^^ 5Z la con- yllabe de J circons- lie commc iielle, par lurtre ayq 3 de celtc i se trouve cas du Roi note; un Three men ier of Mrl ire. One confessed jBSsion wafc •ainst hiriiT Iprov c(l in con- lubmit that the now, if we U not remain a Imy Lord Hale llual death, ei* [lurder having [this opinion is It is the case a case where I c I " and a few jrcars afterwards it appeared that Mr. •* Harrison was alive." Dans ce cas Thonime fut malheureusement execute, et npres, nous vojons que Harrison so trouvoit en vie. II j a un autre cas de la niemc nature, duquel je mc souviens a ce moment ; c^est Ic cas dVn homme qui, dans une querelie avec un autre est tombe ou fut jetto dans une riviere, et n'ajant pas paru pour qudlque terns apres, I'autre (etant jugeS fut trouve cou- pable de sa mort. Quelques annees apres, rhomihd "u'on croyoit avoir ete noye, fut decouvert en vie* /application que je desire, faire est bien claire. C'est que dans le cas present, le corps mort n'a }as 6t6 vu, ni raccompiissement du crime, et que, a confession exceptee, il n'y a pas un syllabe a'e- vidcnce de la mort actuelle, et de plus, que cette confession elfe m^me n^est pas Evidence de la mort d'Owwi Keveny. Je soumets avec confiance, vu que j^ai Topinion d^un juge aussi savant que Milprd Hale, que, dans uncas de meurtre, la seule certitu-f de de la mort de Pindrvidu charore d'avoir et6 tu6,est qu^on avo'it vu commetire le meurtre, ou du moins que Ic corps mort ayoit ete trouve. Je dis quMl lest absolument n^cessatre, avant de trouver un prisonnier coupable de meurtre^ que la mort ac- tuelle soye incontestablement p oiivee, et daHs ce cas, je soumets, qu^elle n^est pas prouvee jusqt^^au moment present. Avec ces cas devant nos yeux,- ftous devrions etre tres'circonspects. C'est sur ees fondemens que j'ai Phonneur de soumettre Ics* motions, !«»«»*• de faire un proces nouveaii au pri- sonnier, et si la Cour ne Taccorde pas, jepresente des observations en arret du jugement Mon sa- vant confrere Stuart me suivra, et il expliqucra i la Cour plus au large les autres raisons que nous avan^ons pour so utenir ces motions. Mes argu- menssesont porte? a Tetendue suivante, sur les not evidence of the death of Owen Keveny. I subn^it with confidence, con- sidering I have with me the opinion of so learned a judge as my lord Hale, that, in a case of murder the only certaiiity there cari be of thfe death of the individual charged tti have been killed; must arise from;) the murder having been seen, or at least from the dead body having been found. I say that it is absplulely neces- sary, before finding a prisoner guilty of murder, that the actual death be undeniably proved, and in this case I submit that it bas not been proved up to the present moment. With these cases be- fore our eyes we ought to be extreniely cautious* It is upon these grounds that I have the honour to submit the motions ; in the first place, for a new trial fur the prisoner, and if the Court does riot grant that, [ offer observations in arrest of judgement. My learned brother, Stuart, will follow me, and will more full/ expilairi lo the Court the other reasons which we allege in sup- port of the motions. My arguments upon the two positions go to the length; that the Court is not possiessed of any authority to try offences committed in the Indian territories, or, if it has suck •9 dan» )ir pour , aucuni' DH n'au- actuelle 'y a pas meurti'fc e dans ce e en vie. Jour pour I que j'ai cecuted^ and B. There is e at the mOt [lother, either g.yis appe^r- ;d) was found naiv, who was to be alive. plain. It is sen, no more th iKe excep- nce of the ac- , not evidence iifidence, con- a judge as mjr iiity there cart e been killed; at least from iolulely neces- ihat the actual unit that it has jtsft cases be- L It is UP"."^ le motions •, ni ,d if the Court of judgement, rill more lulty allege in sup- ^0 positions go ,ny authority to L if it has such ' dhief Justice Sewell. — Before Mr. Stuart corm^ tnences his argument, I wish to remark that in all the cases you have alluded to relative to cir- cumstantial evidence, the obvious question of the actual death must have been left to the jury. In this case, the question of the actual death of the man, and who it was that was killed, (if s^n^ per- son was,) went to the jury, surrounded with aU the circumstances which, in your, opinions, les- soned or destroyed their weight and credibility. The evidence of the death, of who killed, of who was present, aiding, and who il was that was kil- led, have been credited by the jury, who have fo«}nd the prisoner guilty, in manner and form as he stood charged in the indictment. It is their Terdiety and on circumstances upon which thej tvere the sole judgesj. Mr. Justice Bowen.-^n slating there was no evidence but the prisoner's own coniession, I think, you appear to have forgotten the evidence of the two voyageuFs, Faye and La Pointe, as. well as the circumstance of the clothes being in the canoe and the division of the butin, Mr, S/war/.— The first question before th6 Court, appears to me to be, can a new trial be granted in a case of felony ? or, to meet more directly Mr. Solicitor GeneraPs objection, the enquirj is ; can the Court entertain a motion for a hew trial, in a tase of felony ^ Upon the former part or eiiquiry^ a power for smaller o^ences, it Joes riot extendi to any felony j and further (Hat the confession ought riot to have been rec(eive■ i'.'isr * '.'V44 / can a now trial Lo grunted in a case of (e\»ny / i find a dictum of my Lord Konyon that it could not, but I find, also a later decision than that of m^ Lord Kenypn^ in East, p. 416, iii which it i . (^aiJ that the point is not settled in Ehp^land, l)ut ihat the impression seemed to be that there couhl nor. Having thus produced before the Court contcndini; authontiefi, the one, thedictumof a venerable and learned judge, entitled unquestionably to our re- spect, but, with great deference, notwithstandinc^^ •all my respect, 1 remctiiber that it is only his die turn, not given as a judgment after hearing, in solemn argument all that could be urged in sup- port ofa contrary opinion, but incidentally ex ptY>^« ^or a hew trial, and our civil code is infinite!) more careful in protecting our property, than our cri- minal law will be in prcser\'ihg the lives of the ac- cused. Another reason in support of my position that a motion for a new trial ought to be even more fully entertained in criminal than in civil cases, 1 '^• . I ■ ■ 64i >* thk, that if a iurv in » „• i •oBwritofattaiatVcoLot r* »"» ''"W" criminal ca,e»« n-rircf « ,.? •.?'*"*='' "''"''t in * criminal than in a dv cL iTu'' *""*'"S'"- *" » pew trial can „o, be erne, ' i„ J^ ""^ """'^ for criQiinal matters, there il,' '"" ff^n'ed, i„ fully convictJd. SuDn„.1 '^' . '"'♦''"er wrone- a conviction take, place wifLl'**"^ "'?'' ^"PPos« a right to put. Su^Z 7JT""'"* ' ''«^« conviction Wi,|i „„ e"C Jf .v '^' ^ *="?''«' rial con not be erarited ?h •'i"*''^ '<' '^ « new l«cau,e that can^lo" be'nfe t""' ""° '<"»edyT "^nW or form a grounln^'"' "l?'T''»' ^a^dg- wuld hear an atefmem IT" '"""'' *''« Couf t wrest of judffm^ I . PP*""* °'^* ""^'on in pnsoner, would be the m^. ' *'* "f^'"'''" to a po»verof theCrST,^,>.ri'^'" ^ "««J« ««> the » admit that the aTJicaSi ™ JLT'''^ '"^ S'^-'teA Moder such cimBaie "£L^ '° '""''*' ^"<'. g«nted, but it ij onir in !L ^l^^^'^^^ would be aoeietrial. that S^^'imptj^T.''' "^ T*^or, for ran b(B broiiffht beA,r.-7ir rJ^ ""^'"Sf of the jurv ^^aCf^SS^tc^tltf ««io„ 'they it" "^ *=''°'^"«»«d with whSe,' Wemandin^t.g"r^,/;,P^™*«°ded by whaJ:;^' 'JO" may be mha orZ' "^ •"**? '"' ""sdirec^ "H> besf andS tnuXTT T^ "^ "^^e, by •p-«'- -om:!y:';fta"^^>_whiist: b^ cases no counsel *•'' i-'t; I* ' t-5 if,' i. IIJ^: u^- ir* (.■■■ 546 ig heard on behalf of a prisoner. All that thd jurjr bear, for the purpose of assisting their judgmentsf either on the law or facts of the casie, though so necessary in most criminal cases to a pnsoner that his counsel should be heard, is the judge^s expo- sition of the one and the other. Far is it from mj intention to do any thiog beyond addressing a ge- neral argument to the Court upon this point, yet I maybe permitted to urge that, as the best and most enlightened may err, the door ought to be opened wider, rather than closed, to the mtrodup- tion of the only remedy that can be applied to the consequences of such error, omission, or misdirec- tion, and as the consequences of either are infi- nitely more important in the one than in the others there is, I imagine, tenA)ld more reason for grant- ing a new trial in criminal, than in civil cases. I call upon the learned Crown officers, in opposing this doctrine, to shew me the principles upon which their opposition is founded. I call upon them, af- ter I have shewn that the point is as yet unsettled in England, to substantiate by argument, in the absence of authority, the (to my mind) strange pro- position, that a remedy shall not b6 applied to an error affecting the life of a man, whilst they would extepd it to every case of mere property. I call up- on them to say why the mouth that has been clos- ed during a prisoner's trial for his life (by, as I Baid before, a peculiar anomaly, which does not al- low counsel to be heard on his behalf,) is to re- main sealed after his conviction^ whatever Diaj have been the error, omission, or misdirection that occasioned it. I conteqd that the entertaining a motion for a new trial in all cases, criminal as well as civiH is in the discretion of the Court, who will grant or refuse it, as appears to them most conso- nant to the ends of justice, which I take to be the governing, principle of all judicial proc/^edings. i i- not the Crown be LZht Ta^V""*^^"'* »grM on all handi L?! f T?'" P?"lon, but it is ^.bed, upon the edaitab?e l*"! T ""^ ^ ^is- " one and the sarne ofleSet5^*i '"'° ''''»«« «>«• 'e« «i>at leading mMrm^rfa"?."'? ^*° •"«=«•" But '«'?«cle,s,ii| tKbnveli?^'*''-'''r'fP™dence be *^ «had in civil caselwWeT T"^^ ^ »" &•*«<- »nd Mw trials granM A, ^'"^ *"•« *«« -sWe, <=o«*d be in no worse situntil "^Z'"* ""^ P^oner *nt„tto I shouwiSne ^".l''!*> « P^«- !je granted fb a prisoner It !?„, IT *'^*' «'«'«W (he Grown if asjfed tL ff ''' ^T^^^^^ to whicl^ ihe Crown stand, f ^'««'*nt situation in f 7 'Sbject in p'i onefe'^KP"^*-- «»<» •'«« »'. precJudes 1*1.6 idfa Tat Xv ? J*^- "P"" *"• fo'anewtrial.Wi^AeDrinrnf^r"''' *''*' ask te pnsone,^ to bbpoirie a*^ w P'' "'^S'^nting them *fc?ttte Court „ponh-^Sr''^P.T*'^« But a«de the yerdictfahd SS '^"T^ '^'7 ^^t Woov, is a doctrine in sunlw r '', ^."i "» '=«'^s of «nfi W tb Vine r^K/:;'t "^^^ '^ith *'",.8hew that a pmomf^A^Z^K'^'' ^bkh »h?re *• defendant TaMul«S" T »* g«n«ed Je M convicted in a crimS L*H ' ''"' .""'J' ''''•"» f-nd m the 2d .ection?Sr thl P""' ^- '» » '' ■' V i 54fl 1^ I. ■ VM (sm . " ■ 4c U:.i i,V,'. I* (■ '•fi; ^V minal and ca|Ntal caset, but otherwise it id, whftre «« he is GonyiGted''— Liev. 9. Mich. 12Car.(L B. Ri Anon.— 4Ddeed there is a case of a defendant be^ ipg. discharged p{ a verdict, and receiving a new trial as late as 26th Elizabeth, the doctrine, there- fore, notwithstanding the dictum of my lord Ken- yon, for whose decisions no man entertains a more profound respect than myself, I consider at least to be open to discussion, and the more especially as I have shewn to the Court that at a verv late date the question was not considered as settled in England. ChdefJusiice SewelL^-An the case you refer to, in the time of Elizabeth, the new trial was granted l^efore |he recording of the verdict, in such a case probably the same thing would be done again^ Upon a disagreement of the jury, the defendant was asked if he would be discharged of the jury and their verdict, and he agreed to it ; he was tri- ed by another jury upon the same indictment, was founa guilty, and had judgetnient to be hanged* It ia Man^ell^s case^ I presume, that you reiifirred to. . Mr. Siuart.^At was, your honour. Chief Justice 5«i;e/if.— Then it is one of another kind, as a new trial was granted there, before the verdict was recorded. The verdict of the jury has been recorded in this case,^ and the question it how can it be set aside? Mr. Siuart—^There u another in Hawkins^ where a new trial was grafted after the verdict had been recorded. I can not, at this moment, re- fer to the page of Hawkins, but I will send it tt your honours. Chief Justice iSewe^.— Do, i{you please, .for I d# not recollect it. Mh Stuart.'A will. I speak with confidence oil the subjects as I was Idoking at it tlH» momiDgt m 549 and It win be s&e^n iU * • ««? immemorial, „ei*;;K°\'"*'»"'=««^ capital criminal ca«esTand 't ^" »"°««d in We and learned juCs mi'^"?^'' '""^ venera- .''^"fcts M to the pripXl ^^y have entertained Ibe length of saT.LTha.!*!^'!^' ""V have gorl as I ha% shewn, ait hlf f" ^ ^°" W ^■r PonsWered^o be so therl Zn r '" ^"5'«'"'' warn no d'oubt on the minds .tn^'/J '"'"?'"^' '^- competency to enferta^a 1,; "'^. ^°'"-«' «« «° i«s verd.ct. and grant a n^w tr^al Zh" '"' '''"'^ *''« % argument on 'thig^w,' '^f'. " "»« P'-'Jsent case. Iherefore, be to enforcrthe i F"^ °"* '''"' ofthe m6tion hpingLal^P^t^"'^^'''' justice ^ark, m .r^ferenee^to^'tn-o^' '"""'^ J"''' re- Bovren's hint as to new ,SAT"'' **'• ^"'^''^'^ the part of the CrowTin • "!? """ved for on "'^Orp.^n. «r .W S J" inTh"'^ »<=q"i«al, ,h^ ."•■nal prosecutions ans £'„^. J^°^"' •""»« all cri- •» ;N fpdiptment far^erTi S " ""' '"'"''^''^ ?f the case, and that, if twe?v« r u-""""" J-^''^" h-« peace, crown, and diSv hf''" ^'''^'^^'^ ''"J frjflged upon, it is reasS' . "** ""^ ^e"' in- "'» be satisfied with suXfiS" ° ^-^P^e that h" pie has been reoog^ed and *?^J ""'' '^ia princi. «™yhave been S for 1 "^ T'"^''«n new "''demeanors, sTs^t W 7'^ "'^ acquittal ,„ J'?ai*d away'tte Slf J P'-f' H^^'ng thus eoftipeteney, we eritAT.V ' ^P^ *''« question of 'ff "1 the case of ChaXs rl n '• ?'' 8^»< » new «a«s€^ rt IS biiJr brrnr^ « -^ ^^ ^"'s mdtftm, b#* ,t«*«rtc2Lt^ea^'^|°-f^^^^^^^^ »-- '►0«gn.e„t.i:t„«t'tt:^^be^^^^^^ .jn.A? !;^ Til? ■ J 550 \

abridge excluding propose 10 the verdict, rting to be pitted to be ^ confession igiptratc, as ^a^ irregu- moivl*'^- * ed as a con- o have bee^ t wilt be s^w, [on law, and >ut I qontena before a ma- evidence at magistrate, or former dew- ,neous which ,ade before a lacistrate, or ,o the CroinB J offer tbis^t .^jte. It^ouU when we ob- his clerk prov- ing the paper-writing which purported to lie the prisoner'^s confession, to say; we arc going to prove bj this witness that the prisoner wrote the paper and delivered it to A. B. or C. There can be no doubt but, 'n that case, the Court would have said, we will not receive it except you bring A. 6. or C. because A. B. or C. woula be the best evidence, which is in every case, criminal or civil, what jthe law invariably insists upon. Had the best evidence been produced, either regarding it as a confesston at common law, or under the statute, ^tiil the efiect would have been the same to the prisoner, as the same individual would have been produced, the Earl of Selkirk. Knowing of this aper-writing, we concluded that, if attempted to e made evidence against the prisoner, it could ly be effected by Earl Selkirk. If it was to be I on made evidence as a confession under the statute, he must ajppear himself, being the magistrate, a« it was well known to us he had no clerk ; if it was to bo offered as a paper-writing, and, therefore, good evidence at common law, stiii Lord Selkirk must appear as thje witness, because )it had been delivered by the prisoner to him, and he was therefore the best evidence^ which is what the law insists at all times upon having produced. There can be no question that, had this paper l3een in the hand-writing of Lord Selkirk, or his clerk, that it would not have been received, unless they were here to prove it, and the circumstance (if its being in the prisoner's writing, does not alter the argument at all ; no greater legal certainty is given to it. The acts of Philip and Mary do not re- quire that the magistrate should take the exarai- tration in his own writing, but that the examina- tion shall be put into writing, and signed by the magistrate, and, upon the trial, shall be proved by hino, or his clerk. An additional reason might 'm"'^ ^M iM ''■i'':wM 95i% t; .... «^ j if Jp* I'A , h ' 1)6 urged from tbe general necegsitj of proving that at the time of makiug the confesiiioR tho per-' son was free, or i^ not, that the restraiot imposed was a legal restraint, aqd.^bat Dp. improper in-i duceoients were held out to obtain the coniestiion^ and. who is to prove thiB but tho magistrate? if the confession i& tq be received a^ comdion law/. $til|, upon the principle of having the best evi- dence, the necessity presents itself agaip^ who can best prove that no pcoinit^O' or menace was niade. use of to induce a confession P Certainly the an- swer is immediately, he to whon) the eonfesf^ion was made, and applying this rea^ning t;o tb.e pre" sent case, either asa confession at common hiw, or one under the statute, it was necessary to have produced the Earl of Selkirk. But I go' a step farther, and leaving the general rule, 1 say that, , in the present case, it was specially requiaite^ irom the very extraordinary nature of tn^ circijHnstaiices "^vhich are connected with it, that Lord Selkirk should have been brought here by the Crowm it he did not come here himself as a magistrate with hi? returns^ &c. — though it might have well been expected that his own anxiety, in a case where personally he- was so much? aad'hi^ own honour so deeply, concerned, would his^ve outstripped the tardiness of a legal obligation to appear — for, at the time of makmg this confession, De Reinb^rti was under restraint^ 'a restraint imposed by my Xiord Selkuk, the which, if not imposed by ma- gisterial authority, must necessarily, have been an illegal dure^, and had been so from the I9th of October, a period of ten^ays, the confession being delivered to Lord Selkirk upon the 28th, and three or four days after he. was set at liberty^ a very strong circumstance certainly, and one upoa which bad my Lord Selkirk been here, as it was his duty to have been, and? as. his own feelings, J^ ii' i - 053 proving ^ impos<^ oper in* ^niestjion, ^te? If hon law* « best evi- , ^hocan i,va9 rtjade; ijjt the an- Ejonfesfiion qntaw, or y to have go' a step 1 say that, jiaite^ Crom c^jHustftnces rd Selkirk Crowns it istr?ite with well been jase wher^ ,wn honour Itrippetl ibe Lp — Cor, at \e Reinbar'?iQn, occa- sioned his h^ing set at liberty. " AH this itifdrma- tion, sd'ifnportant not only to the prisoner^ but to the caus^ of substant^l inapgrtial justice, we are shut oui from by a course ^hJcfe, we contends exposed the jury to the influence of that which although allowed 4ol?e given in evidence, was not legally so, and, therefore; the'verdict is- in feet against evidence* Our objection haa a vei?y nar- row compa«S!. ' The confes^ioti was a -confession before a. ttiagistrate^ upon sthfe a^*n the paper was proper eyideftce to go to the JHfrp,' if any part of it wafe entitled to find its way toi Ihem, and that it was not competent to tbe Ctfttrt; to enquire what the contents of any part of % nright be ; if a discovery was ttiade that a part was a magistrate's certificate, t to it contained his examination of a person making a confeseion, or that it was the confession itself, still the certificate ; admis* , we al- ^as not he case Hhin the iven bet- rt of my ir judge- ed of the there it* t thccon- lut I beg, I have to tniUed to ^g offered iog it 9^d- sotier^ the the entire itire paper argue that after pro- fitend that >ne», to the itided over no answer at common magistrate yr, and feel i\\ that wa& ^O' to the ind its ^vay .ent to the any part of that a pai t ,ntained his [nfeesion, oi' le certificate ^55 ought) as forming a part of the paper produced, to have gone to the jury. I will put a case, suppose i^tfo certificate stated that i^Tider his examination iviff prisoner had been contumacious, and had re- fuseqUo Answer certain questions, and thereupon h&d been Btretcfaed upon a rack, and told he should suffer "tt^ pains unless he answered the questions put to^HilDf and being relieved, he then wrote his confession ;/ 0n his trial it is made evidence at com- i^n law i^gdifist him, being proved by some byc« stander, I should a^k, ought not such a certificate t0 go to the jury ?• woula it be any answer to say; thfs paper th^ prisoner wrote and delivered to th^ magistrate is r^eived at common law, and there- fore the magistrate's certificate is not required, it is not evidence.' No, Certainly not; nor, as we contend, is it in this case. ' It Vonld have been proved and repeive4 as (gvidence,"^ had the confes- lion been made' so under the statutes of Philip and Mary, and though received as a paper-writing at common law, ought not, according to our view of the suyect, to have been kept from the jury. The second point 'which f shall have the honour to present is one thatv of course, I offer with great diffidence.' It is that this honourable Court, in its charge to the jury, misdirected it upon t^o points; first, as to the limits of hi^ Majesty's province of Upper Canada, and also to the interpretation of the western boundary, as settled by the act of 1774, in its explanation or conslmction of the term northward^ which your honour directed the jury, must be considered to mean dui northi ' In reneiv- ing, to a pertain extent, that i^hich your hdnpurs might coQsidie^r as already decided, l beg to m^n<- tion that it is not my intention to touch upon the former part of the objection, because it was argu- ed to its full extent, and your honours decided that our view of the question was wrong, bi^ the latter li'-' 'f II $56 m-i I' ■if. il ■ 4 pi If 1^ (J,-. ■... 4^' life 1 objection was bj some means omitted. It will be 111 the rocol lection of your honours that, on that occasion, we cohtenjed that the province of Up- per Canada exceeded in its limits the extent uhich ooMfided the anticnt province of Quebec. That point, may it please the Court, having been dis- cussed, and so positive an opinion given on iit in your honours decision, will bo completely aban- doned, but that which it is my intention to address the Court upon, is the construction given to a prtn of the boundary, set forth in the prcambfe to the act, usually called the Quebec act. I will read a part of these boundaries, so as to introduce the point I intend to argue fairly to the Court': after tracing the line to the northwest angle of the late provinceof Pennsylvania it goes on to describe its bourse thus, " and thence along the western boun- *• dary of the said province until it strikes \heri- ** ver Ohio ;. and along the bank of said river west- ** ward to the banks of the Mississippi, and north *< wafd to the siouthern boundary of the territory " granted to the 'merchants adventurers of Eng- ** land trading to Hudson's Bay, &c. &c." Upon ibis portion of the boundary it is that f propose to found my obser^'ations, and the objection which, with great difference certainly, I start to the opi- nidn which your honour holds is,' that northward, means to continue fltong the banka of the Missis- sippi, ae the -course of that river, which is in 9l northward direction,' thought not cfec nortJi^ •and we consider this to be the construction war^ rai^ted by law and usage; and, (1 again beg that I may be understood, as speaking with the greate&t doterencc,) more consistent with the 'intentions t>i th6 iSct as expressed therein. '■■*^i*^i -^^f Chief Ji(9iiceSemll--^Ths^t, Mr. StoaH, Is the sackie point whicb we have already 'decided. We beard you- and Mr. Vail ie re in sokinn argument ^7 on that 3 of Up- nt which :. That been dis- n ort it in eljr aban- o address to a prtrt ble to the iU read a oduce the tiirtV after o{ the iatc Jcscvibe its lern boun- kes\he n- river west- and rior//i e territory rs of Eng- C." Upon propose to ion which, to the opi- norfheard. the Missis- ivcr, which dite north juction wa^ nbeg that I the greate&t fl^ntions ol itttt, is the ;idcd. We \jkpbib h][ the |)oints connected with the boundtariesi both in relation to ti e Upper province and the American line, and gave you our soleain d«cisiorl upon them. We have followed it up by taking tlio. verdict of the jury upon that soleiun decision.— ^ That verdict declares that the oifence was coqa- knitted in the Indian territories, or parts of America^ not within the limits of either of the provinces of Upper or Lower Canada, or of any civil govera- roent of the United States of America, and tlie jury so founds after we had chained them on the law of the subject, and such as we laid them down were to be considered by them the boundaries of his Majesty's provinces of Upper and Lower Ca- nada in relation to each other, and to the United States of America. We can not alter that ; it must be to another quarter that you must make your appeal, to that quarter where this case must finally tend; indeed, after having given our decision, you ought not to raise the Question. The jury, upoii dur directions as to the law, have decided the fact^ with which We did' not meddle, having no autho- rity to db^o. They have decided that, according to our defining of the boundaries of Upper Canada; and the line of s>paration between his Majesty'^ possessions and the late provinces, the Dalles are in the Indian territory, or parts of America, not within the province of Upper or Lower Canada,, or of any civil government of the United States of America. If we have done wrong, you know how to retnedy the error, and you may depend that eVery opportunity will be given to enable yen to avail yourselves of tlie mercy of the Crown, but J ^e can not, without legal grounds are shewn ttf lis, disturb their verdict. We can fiot hear you upon the poiht of jurisdiction again, the questioa Being, as far as lies in us, already settled. Mr, Justice B^wtn expressed his entire concurrmei ill. ^ ii ■^4 I!: V 558 «^A thi(chitfju9tieey and added^ that he had a long time tai yoiif^ieiuafpons of regret to hear the dueussion en the /ormfn:.)boint iJnat ttt admission was greaii^ mi variane* Ufttkhiis otvn sertse o/ft&priety aShough he had nol inteifered,,., ^. Sltia»»/.<— If that is the obihion of ttie Court, I shall npt presumf to urge jt iarther, but proceed at oDce td the third jaointy :^|iich I profx^se toad- dace in 8Ut^)fK>rt of my ihotiph for a. hew trial, viz. that no legal evidence has b^o broduced to tho jury 6f tbfe actual death of Owert iCeVeny. thief Jmtice Seweli,'y4 CBih not hear joiii Mr. Stuart, iLippn that point either^ ,^ Vou knoir that it hacr been e()ually solemnhr decided* and bv the siame authority. It was a »ct, ahd solely If ith the jury, and they have decided that the death has actually occ^uried. Their verdict solemnly declarer to the Court and to the world, that Oweri Keveny was mbrdered, and wej can riot alloW ^ou to say, that he was hot, and hear you argue Upon the at-r sertiori. You knaiv we can not, then whtattJeinptit.^ Mr, Stuart — Then t sh^Il pt*bceed immediately tb the motion in arrest of judgement, on solid^ legal, grounds^ upon which nb iquestioh of right can possibly arise, assuring the Court at the same time that I did riot consider the question relative tb the American line as having been decided, or I certainly should not have raised it again. As to the prtiof of the death, I intended to argue upon it incidentally, a coursie which I thought tne Court Qad permitted Us to take, biit I certaibly shkil, riow 1 know its pleasure, corifine myself to the legal grounds which support a motion in arrest dt judgement. And I stkte, sis the first feature of my argument tipori it, that this CouH has no power to try afiy onence committed in the Indian territory; aiid 2hdly, If it has, it do^s not possess power to try for any felbtiy, or, in other wolji^ cussion greatltf UhougU I Court, pr6ce«w ibal it I A bir the J Vrith the Beath has [y dedarefi eii Keveny ^ou to say, boh the ai^ Ltttemptitr ttinedlateW t, oh 8oVia» ►ii of right it the sam^ [ion relative icided< or I tirt. As to §5i tiy broad position it, that this Court has no juris-' diction at all, or if any, it is confuted to misde- meanors, and is incapable of trying any felonj. Before I enter upon the (juestion itsell, I must look at thr, act upon which this indictment is founded, and when I so look at it, I fmd it to bo *^ an act for extending the jurisdiction of the ** Courts of justice in the province of Lower Ca- M nada and Upper Canada to the trial and punish- *^ ment of persons guilty of crimes and offences ** within certain parts of North America adjoin- *^ in^ to the iiaid province^'^ My object in read- ing Its title is to shew, ft*om the \ery nature of the act, that its construction ought to be most rigourous and strict, seeing that it trenches upon one of the fundamental principles of the com- mon law of England, viz. that of locality of ju- risdiction and trial. This statute, it will at once be remarked, gives jurisdiction to tryicrimes and ofiences committed out of Lower Canada to thei Courts of this province, thus giving jurisdiction where there is no locality, and not only does thiir act of a British parliament assume the right of so doing as far as England herself may be interested therein, but also for the whole of Europe aa fat as their (Subjects are concerned. Again look at the nature and state of the country ; it is Indian territory, and it furnishes a strong additional rea- son for calling for the most strict and rigourous toDStruction of such an i(ct. Look at this country ^ver which this act assumes a power and jurisdic- tion^ and we find it a country with no government It all, (that is, no civilized government,) still in pos- session of the wild natives, the aborigines of the soil,' trho still consider themselves the lords of it, ami it nay be questioned whether the power of legrsla-' iioQ over it actually exists as a right. The right ^legislation over this country assumed by £ug^ -Oi *\ , 4 m* Iw't'iv » ffl^l K ' « ^ Bi M*''^S ■&. ^H M M '^'JE'I ^^r;M ' -1^'^ ^^^|; .. Jr x9r |H i^^'^p ;.ftjB 11 K IR'^' P SliSMfc B f '^ wil&K'' - ilL <^ ^60 kfid^ , t saj« dflay. yir«li b^ d6ubt^d. Hbi^ d^cT &h^ oblaiRJt ?. ) Tbera are only two ways, J tont^nd, Isy whicii the right oftegislfttjod c^n be Sttaitmd b^ pnj naitiob,. viz. dj * eecupancy^ or by -conquest; and by iMjithei? pX these did JEngland attain the right bf legislitibn for the tndiaft territory. The hci of non-oecupancy is matter oif notoHety ; i would ask then fropQ whom did she conquer it? BoVfrom the French, for they ney'er held an ad- Terse j^ossefcsion of itv an adverse possession ha$ never beten held by England^ for sho never had any occupancy, no adverse, possessiob, Wfcis eve^- held by atw foreign Eutv>pean nation, no adverse bccupancy hafe been ttnaintained by kny nation but the United States. They have beeri ai war witli some of the Indian nations^ and they^ have held, iand do fititi hold*, an adverse p6d$e$sion of some bf tfaeiir land ^, but they are the only i^ation who llHve acquired Indian lands by a cdtirsb Which the law of liatmod acknowledges as conferring the iright bf bgisiation.^ It might have been sapposed ^t (he French had a poss^&^ion vr bcctipanc^, be- ^uae i^bme of their traders visited Certain parts of • thi« Wild country $ but their traders never dared to asimnie kii adverse occupancy. They had their tndmg post^ ;, how f by dufierancev They ei- plored the wilderness ; how ? upder th^ protei^tidh af its native lOi^ds, but they neVer dared to think bf an adverse possession. It might, in the same wajr, bb supposed that Ehgland had maintained a poflsessidn of this countiry) becaiise she contii^ued the trade which had been carried oh by the French, iftnd iilcreaeed tt, but she had not therefore anr jpossession of the country, or any portion of it faioed from the natives by cobqueSt, and retained y actual ocoupency. What occupancy has Eng- ^nd, or what occupaOcy had France ever in thii boimtry P ^ot^ wh^tevet-, they visited it as traders; tied by >qufe9t; Mil the '. Thft riety ; I qijer it ' 1 an nd- sion ha$ ever had o^dverse )QLtioh but ^ar 'With lave held, n of some iialion Who ^hich the ferrmg the . ■• ^eaA 561 Wa'' Were permitted to traffic, and erect trading- posts, but the- French and the British have no bt^ore real occupancy or poissession thereby, than the J have of Smyrna or Constantinople, because the J have established factbries there. The ground I take and the position I maintain is this, that, the British havie only a precarious possession of any part of this immense and uneiplored wilderness, a possession similar to that enjoyed by the French tt?aders, by permission from the aborigines, not acquired by conquest, and therefore incapable of being transferred or ceded, nor indeed was it ever attempted to be ceded to the British govem- ment; ibr the possession of the French was, at its utmost extent, a permission to erect trading-posts. Mr, Justice Botcen. — -Do you intend to say that it wa9 not ceded to England at the treaty of Paris of 1763, or that the Court of France had no right to cede \t? as according to your argument they could not legislate for it, having no occu- pancy in point of fact, and never having acquired the right of occupancy by conquest. Mr. StuarL—^i do certainly ; but I shall come to that point presently. I beg leave now to contend that this Court has no jurisdiction given to it by the statute of the 43d Geo. III. cap. 13^. The title of the act I have just read, and its object is so well known that it is unnecessary to read the preamble and first enactment, wherein it is set ibrth at length. It recites that g^eat crimes and offences, committed in the said Indian territories, have gone, and maj hereafter go, unpunished, and greatly increase, for the remedy whereof, this act declares that all offences committed in the said In- dian country, not cognizable by any jurisdiction whatever, shall be, and be deemed to be, offences of the same nature, and shall be tried in the same manner, and subject to the same punishment, as N N 1 i m ■':■ W'J TO if! ^^ 662 if the same had been committed within the protince of Lower or Upper Canada ; the second clause of th^ act, authorises the Governor, Lieutenant Go* yenior, or person administering the government for the time being, to empower persons to act as civil magistrates, and justices of the peace, in the Indian country, and makes it lawful for any body to apprehend, and take before any person com- missioned as aforesaid, or to convey, or cause to be conveyed, any person guilty of a crime or of- fence, to the province ol Lower Canada^ and there to deliver him into safe custody, for th^ bur- pose of being dealt with according to laWj The third clause demands very particular attention, as it provides for the trial of the persons so brought down. The moment we have read this clause it strikes me that it can no longer remain a questioa that this Court does not possess any jurisdiction over the Indian territory ; the only act which ex- tends the jurisdiction oi the Courts here to take cognizance of offences committed there, is the one I hold in my hand, viz. 43d Geo. III. cap. 138, and this act does not give any power to this Courts I will read its own declaration of the Courts ts which it delegates these new and extensive powers^ sect. 3d. ^^ And be it further enacted that every "such offender," (that is, every such offender ss sent,) '^ may and shall be prosecuted and tried in ^ the Courts of the province ef Lower CaOada^ ^ (or if the Governor, or Lieutenant Governor, ^ or person administeriRg tbo government for the ^' time beii^, shall, from any of the circumstanceK ^' of tlte crime or offence, or the local situation of *' any of th^ witnesses for the prosecution or de- '^ fence, think that justice may be more conVeni- *^ ently sdministered, in relation to such crime or ** offence^ in the province of Upper Canada, and ^^ shidl, by any instrument under the great seal of , iii; 563 eUuse of snant Go- »verDment I to act as tce, i» tbc any body rson com- »r cause to riinfe or of- inadttf and for th« bur- law. The kttefttioii, ae 80 brought his clause it Q a questioQ r jurisdiction ict which 6X- herc to take re, is the one •ap* 138, and Ibis Court* I je Courts ts [nsive powersf 'sd that every ^h offender as &L and tried in lower Cattada< tut Governor, nment for tbt circumstance* ;al situation of ^GUtion or dc- [inore conVeni- a«ch crime or |r Canada, ana ie great seal of | V the province of Lower Canada, declare the **• same, then that every such offender may and H shall be prosecuted and tried in the Court of *^ the province of Upper Canada,) in which crimes *^ and offences of the like nature are usually tried, t' and where the same would have been tried if t' such crikne or offence had been committed within M ,■•^ i- l^fl M^E-"-* ||;' H I"'' ••. f-i ^ 1 ' ^-^ J ^H Ml \ '■' •■ <•■'■ B i 8^9 tai^E'^-'H ,^^ 1 *■ A 1 ^64 4^6} .arc not. Again, I might be permitted to re^ murk, that the words of the act are the Courts where such offences are usually tried, and must tlicrefore, ex necessitate rei^ mean Courts . already established, not to be established, and where shall we look for Courts which, at that time^ usually tried crimes and ofTcnces ? Wc must look to the Courts of King's Bench of the three districts ; for it can not, I should think, be contended that a Court not in existence, not (if 1 might use the expression) born, not yet brought to life, could be that usiuil Court, wherein offences of a like nature, committed within the province, would have been tried. The Courts of King's Bench, being the ordinary and established Courts of the pro- vince, must have been the Courts contemplated by the statute, and most correctly designated by the framers thereof, *' the Courts where oifcnccs are usually tried." A Court of Oyer and Terminer is a Court of a day, and can not be the Court in- tended ; the Courts of King^s Bench are perpe- Inal, and must therefore be the usual Courts, ^here is another reason which completely ex- cludes ,the idea of a Court of Oyer and Terminer being intended, but the point has been argued with so much force by my learned friend^ Vanfel- son, that I shall barely mention it, as a concluding objection, which I oner to the act under consider- ation being construed as extending the jurisdic- tion of the Lower province to the trial of any crime or offence committed in the Indian territory by a Court of Oyer stnd Terminer. The act in ques- tion, when speaking of Lower Canada, invariably jsays the Courts ; the offenders are to be prosecuted and tried " in the Courts of Lower Canada, in ^^ which crimes or offences of a like nature are ,<' usually tried, and where they would have been ,« tried, ^c. &c." what are these Courts.'^ they fjCfi I Courts id must . already ere shall , usually jk to the ricta; for d that a L use the ife, could of a like ,'ould have nch* being f the pro- nteinplated jignated by ere oifenccs d Terminer [\e Court in- are perpe- iiial Courts. ,pletely ex- id Terminer leeti argued ;nd4 Vanfel- |a concluding icr consicler- the jurisdio of any Clime irritory by a act in ques- la, invariably ,e prosecuted Canada, m ie nature are i\d have beeo lourts? they must be, I agatin say, those of the King's Benc^), for we know no other Courts wherein crimes and offences are vsually tried. Again, " and it shall ** also be lawful for the judges and other officers of " the said Courts to issue subpohnas, &c." what Courts but those of the King's Bench in this pro- vince meet this description.'* What Courts have judges and other officers, their sheriff, their pro- thonotaries, &c. ? not Courts of Oyer and Termi- ner assuredly, but the Courts of King's Bench, provided for by the judicature act, which not only establishes Courts, but to the several Courts gives what is necessary to the pormamcnt adminis- tration of justice, judges and other ofliccrs. As upon this part of the subject I may have to enter more fully, in examining, if it should be thought a Court of Oyer and Terminer has o?>^ jurisdiction over offences committed in fhe Indian territories, how far it extends, I leave it for the present, and, as I may not have succeeded in satisfying tlio Court that it has no jurisdiction over the Indian territory for the trial of any offences committed therein, I shall now submit some observations, in support of another branch of my argument, namely, that, if it sliould be found to possess jurisdiction at all, it is only a limited one, viz. over misdemeanors, under the term *> crimes and oifences," and does not extend so as to enable it to take cognizance of any felon}^ I advert tb the case of Shaw, produced at large by my learned friend who is witli me, and with confidence' submit it as conclusive on every point that bears upon' this divlsibn of out: argument. It first, I think, 'establishes that, al- though the term "crimes and offerieeV mi;^ht in general be supposed to include felouifes,' yet' that, under the circumstatnCes of extra-jurisdiction con- ferred by »4his act, in opposition, or cbntrary^ to the common law, a construction, the most limited ' V i- mi m '',?i^ .^i: if'**- M v ' ., 'M' 566 must be necessarily given to the terms, and under such a construction, the delegated power extends to no higher crime or offence than misdemeanor. The reason why this construction is ^iven to sta- tutes conferrine an extra-jurisdiction ts, that as no p^er to legislate over this territory or country exists in the colony or province to whose Courts authority to try crimes and offences is given, it is necessary that every thing affecting the life of an individual shoul4 he considered m^ the Courts at home, under the eye of the parent government, whither points, such as those arising in the pre* sent case, may be speedily referred, and a final de- cision given thereon, from an accurate knowledge of the whole circumstances having been obtained by the investigation having passed, as it were, im- mediately under the personal observation' of thpse who have ultimately to decide. I contend that Shaw's case distinctly establishes that by the term ** crimes and offences'' it is only intended to j^ive the power to Iry for misdemeanors, for it is proved by tne proceedings in that case being quashed, that an indictment, even in the Courts at hom^^for a felony, founded upon an act giving extra-juris^ diction over "crimes and offences" could riot be supported, and if it could not at home, I suppose it will not be contended that it can here. It is then, I consider, evident, (however I might be dis- posed to admit that, under a general construction, the power of the Court might, under the term " crimes or offences,*' in its own district, take cog- nizance of felonies, though felonies do riot, in law, come under the denominatidn of either the one or the other,) that felonies can not be considered, un- der thiB act of the 43d of the Kinig, as compre- hended under the description of *^ crimes or onen- *^ ces," because the extra-judicial authorrty confer- red^ demands imperatively that the strictest inter- ''mil £67 i under extends meanor. I to 8ta- i^t as no country e Courts ven, it iff life of an Courts at irernfnenti 1 the pre- a final de- Lnowledge 1 obtained ; y/eve, im- >n' of tbpse ntcnd that )y the term led to feive it is proved \ff quashed^ tthom^i'for extra-jurisi ,uld dot be , I suppose lere. U is jight be dis- lonstruction, ir the term ;t, take cog- riot, in law, Ir the one or isidered, un- as coropre- .ies or offen- lority confer- rictest inter* pretation be given to it, and in the strict legal construction of the words, '^ cringes or offences,^* felonies are not comprehended; I contend thus, upon all the general principles of law, which are alike familiar to the dourt, as they are well esta- blished ; and I consider it needless to trouble the Court farther upon this head, after so late a deci- sion on the point as the case of Shaw, upon which we rely. The Court will find that it goes all the extent for which we have contended, and particu- jbirly establishes the principle^ that the statutes of this description, and the 42d Geo. III. cap- 85, on which Shaw was indicted, was one where they make use pf jthe terms " crimes or offences,*' do not jtherein embrace felonies. I contend farther, that it was the duty of the King^s law-officers to allege jo the jindictment, that De Reinhard was a King's subject This also is a specialty arising fron^ the pature of |he ji hrisdiction, for I am free to admit that, iQ general cases, such as those which occur in Quebec in Lower Canada, or London in England, or griy place known to be in the King's dominions, it is pot necessary for the indictment to do more than^ilege that the offence was committed against the peace of our Lord the King, his crown and dignity, biecause every person found in his domini- ons Qwes him a temporary alle^ande, and it mat- ters not to the law what the individual is who com- mits an infraction upon it, whether he is a foreign- er or a native subject, for, whilst receiving the protection of a government in its territory, he owes obedience to its laws. Widely different, as I con- ceive, is our case. We were not, (admitting for a moment the entire representation of the Crown to be correct,) receiving any protection from the Brit- ish government, therefore could owe it no allegi- ance ; in this wild country, destitute of the form of a civilized government, I would ask what even, by m 9 iit] t n P^:m:-k % y,' 'if , i ^ i'l3 ,! It 4.'. ■ ml Hi' \ 568 possibility, we could have violated ? How c^n it be said tnat we b&ve violated the laws of our So- vereign Lord the King, when not the shadow of his law could be found there, and, non constcU, that the very time and place where this offence is al- leged to have been committed, we were not in the acknowledged territory of some foreign power, of the United States, for instance, (contend that under this act, so various in its provisions, and as extraordinary as various, absolute certainty was indispensiblo, and that an essential feature is wanting in the indictment, by the omission of the Crown to aver that the prisoner was a subject. Admit, for the sake of argument, that the British legislature may pass a law to bind its own subjects in a foieign landi a point upon which, perhaps, much might be said, but admit that every nation has the power at all times to legislate for its own sub- jects ; will it be pretended that she ha& the right to legislate for those of other powers. It may be said the prisoner was known some time ago to be in the British dominions, or that his occupation had made him owe allegiance. It did so, but it was a tem- porary allegiance only, which was paid and ended with quitting her service and territory. I contend this omission to charge the prisoner with being a sub- ject, and that the offence was committed within the King^s dominions, is as fatal an omission as if the words, ^^ against the pieace of our said Lord "the King, his. crown and dignity," had been left out. In supporting this position I submit to the Court that this offence, being charged as commit- ted in the Indian territories, without alleging that it was in the KingV dominions, non co»«/ia/, but it was *in that part of these Indian territories if committed wherein, the act itaelf acknowledges, as well as the indictment, that unless a subject, he could not be tried. The indictment sets forth that '.* Charles De 569 7 c^n it our So- adow of (a/, that ice U al- ot in the ower, of end that s, and as inty was eature is ion of the a subject, he British rn subjects I, perliapSf nation has 8 own sub- li tke right It may be s ago to be upation had t was a tcin- l and ended contend this leing a sub- itted within iiission as if Ir said Lord ^ad been left ^broit to the as commit- legingthatit L but it was ^fcommitted is well as the ;ould not be Charles De f* RjBinhard, late of a certain place in the river Win- '^ nipeg, not known by any name, and not cqmpris- »^ eel in any parish or county, but situated in the- '( Indian territories, or parts of America not within »' the limits of either ol Hie provinces of Upper or ( "* Lower Canada, or of any civil govc ment of the " United Stales of America, &c." and the act de-« dares, in extending the jurisdiction, that it is to the prosecution and trial of persons committing oA*ences in the Indian territories, or parts of Ame- rica not within these provinces, nor within the li- iiiits of any civil government of the United States of America; looking then at the indictment it ap- pears to me as if it was drawn up expressly to shew that the offence was committed in a place where no jurisdiction could be exercised by the British government. The offence is not charged . 10 have been committed in the King^s dominion^, nor is the prisoner charged to be a subject of the King, two substantial averments to make in every' indictment, but especially in a case founded upon a statute giving a jurisdiction at open war with the very first principle of oiir conimon law, that local- ity alone gives the right of jurisdiction. The ge- neral rule upon every indictment is, that it ought to be certaiq to every intent, without any intend- ment to the contrary, having the same certainty as a declaration, for all the rqles.that apply to ci- vil pleadings «^re applicable to criminal accusations. Can it be said that this indictment is certain ? must it inevitably follow that this ** certain place with- " out a name, in the river Winnipeg, not compris-' ^^ ed in any parish or county, but situated in the In-. " dian territory," is not within th6 limits of some o- ther government, to whom the prisoner must have Qweda temporary allegiance. The strictness with which indictments are construed, and the rigidity with which all their form»*are^ insisted upon by J •>,■ ii: % I mm m\ "'t»T K''m {■H-i ■ ■.-■ '■ *^ ■ '0 : I:-? ff'v^ mm «70 judges^ even in ordinary cases, where eyerj thing Deing perfectly known to all the parties, it can b^ only for forin^s sake, are well known, and it is need* less to adverf ip the circumstance that the omis- sion of a word,* of a syllable, nay almost of a let- ter, will quash an indictment; but here, in a ca8« 80 completely iiii gen^ris^ jnvplved in doubt and uncertamty as to jurisdiction, in a case founded upon a statute which, I Repeat, in giving jurisdic- tion to these proyinces^ trenches upon the very foundations and fundamental principles of the com- mon law of England, namely, the association of locality and jurisdiction ; the Crowii officers, ii) iheir indictment, throw aside every rule which has heretofore guided our practice, or, when nieglect- «id, taught us, by the consequences, the; necessity of being guided by them, and content themselves with simply averring that this nameless place is within the jurisdiction of this Courlc. In Shaw's case the venue is laid in a parish at London or Middlesex. Mr. JmttQi Bowen, — Then you contend, I sup- pose, that the indictment should have stated that he, the said Charles Do Reinhard, being a subject of his Majesty, and late of a certain place in the river Winnipeg, not known by any name, and not comprised in any parish or county, but situated in the Indian territories,' or parts of America, not with- in the limits of either of the provinces of Upper or Lower Canada, or of any civil government of the United States of America, but inrithin his Ma- jesty's dominions, and the jurisdiction of this Court, sciUcetj in the parish of Quebec, in the county of Quebec, in the district of Quebec, three negatives which would have made the indictment voia. Jl/r. Stuart, — No, your honour, I only contend, that it should have charged, in addition to ths words contained in the- indictment, that the place ^^ses ry thing t can b^ , is need- be omis- of a let- in a ca8« toubt and founded t jacisdic- ' the yciT f the com- ociation of officerSf »i> which has en negUct- p necessity themselves lesft place is In Shaw's London or )end, I sup- stated that jg a subject i^ace in the lme» and not [t ftituatcd in lea, not witb- jcs of Upper ivernment of thin his Ma- rfthii Court, le county ot •ee heeatives at void. [nly contend, lition totht lat the place 671' was in the King's dominions. . inig it have said at Red River, or any other plac< r^Mr, Justice J5ou;«ii.— You argi- that t, e omis- sion of the scilicet is fatal, that ii ou^hi io ha !)ccn laid as committed at a place which is ext? i- parochial, situated in the Indian territories, wit! n his Majesty's dominions, to wit, at Red River. '* Jl/r. Stuart, — Yes, I do. The Crown officers have very wisely laid it as being contra pacem do- 'mini regis. Solicitgr General — I bog to mention to the Court (hat the okniesion of the scilicet is not the result of any oversight on our part, but that, when prepar- ing th^ indictment, it was considered by us to be mere surplui^age, and therefore rejected as unne- cessary; '^Y? charge it to be against the peace of our Lord the King, (lis crown and dignity, as suf- ficient.' '♦ • ' • •»; ' Mr» Stuart* — ^Tbat is tlie point upon which we are at tissue, yon say the offence was contra pacem do- mini regis corOnam et dignitatem ejus^ and we ^ay he had wo pax at all to keep there, and this answer 1 make to shew 'that tl^ 'averment, that it was in the King'fr dominions, was absolutely necessary. Had they done that, they wouil^^ the moment it was establisheid, ' have shut out all argument T)n the quiestion of his being a subject, because, if he was in the King's 'dominions, he owed the King a tempbrarv all^ance,^but,'as we say he is not a subject, ne owes'ho natural allegiance, and from accidental circutta^tances alone can it be required from him, arid therefore the ipbligation should be averred and proved. However much I might be disposed to aoubt the right of England, or any other nation, to legislate for even her own subjects in foreign states, yet it can not, I imagine, be con- tended, if she does possess that right in reference to those who owe her a natural allegiance, that she It*; 'i X I '. .1 'a IJ: = J &: . f: i !'? !;|v.j Kiwi ■ _. I ■*'■, 'i t •Hl72 ran ex tend it to all wlm, from rlrcumstances> owetf her a temporary all<;giance only. That being the case, I say, upon the Crown's own shewing, it ii not evident that temporary allegiance was due from the prisoner, over whom the King possesses no natural authority, he being a foreigner, and on its own shewing, there is no proof that, instead of this offence having been committed contra pncem do- mini regis, li was not committed contra pdcem Unit- ed States, The argument which I purpose to ad- duce to the Court, Dranches itself into two distinct propositions, upon ieach of which i shall briefly remark, and I none satisfy the Court that these omissions are fatal to the indictment. I contend first then, may it please the Court, as a broad and marked position, that the British legislature pos- sess no right to legislate for a country still in the possession of the Indians, and secondly, that, ad- tnitting even that they have the power of Icgislat- iiig for their own subjects any where, it is oijly for Mem in a foreign country that they can do so; up- on both these points 1 argue that the indictment is radically defective. ' sJair, Justi(ie Bowen. — Have yotf Considered what tvill be the effect of the fourth clause, which makes some provision upon (hat subject. It enacts that if any " offence charged and prosecuted under " this act shall be proved to have been conunitted " by any person or persons not being subject or " i^ubjects,'' and so on. When must this b^ prov- ed } necessarily it miist be upon the trial, because, upon such proof being exhibited, the Court is di- rected forthwith to "acquit such person or pcr- ** sons not being such subject or subjects as afore- ** said, of such charge." Who then is to prove this.^ assuredly, the prisoner, not only because he Is the most interested in proving it, but because he is the best able to do so. The Crown haveiie 673 :es, owed being the vingi it ii was due posscsf^es er, and on instead of tpncemdo- ydcem Unit- pose to ad- [WQ distinct \in\\ briefly that these 1 contend I broad and islature pos- f still in the y, that, ad- r of Icgislat- it is only for ndoso; iip- ic indictment neaiiB of knowing his birth, parentage, and edl(p catioiN and ouglit not to be called upon to provtt it. He himself knew his birth-place, and all the circumstances necessary to secure his acquittal, if iiuproperly indicted, and he should luive proved them so as to hav« entitled him to have his dis- charjB^. h was his duty, not that of the Crown. Mr, Stuart. — Y'our nonour'o observation com- pletely confirms my argument, that \\io omissioii of the averment is fatal to the indictment. From the manner in which ihis indictment is drawn up^ we should not have been allowed to deny our be- ing a subject, and to go into evidence to substan- tiate such denial. It would not have been compe- tent to us to do 9o, because it was not in issue between us and the Crown. This answer was not put in upon the trial, because we should not hav« been allowed to go into evidence upon it, inasmuch fts the question under trial was, guilty or not guilty, not, subject or no subject. We could not^ under the general plea of not guilty, a plea which, fiom the manner that the indictment was drawR up in, constituted the only one we could make. I say, we could not, under that plea, go into evi- dence of De Rcinhard not being a subject, though the moment wo established that fact, he would, under the act, have been entitled to his acquittal, be- cause it was not averred upon the indictment that he was so, and consequently formed no part of the issue in contest between the Crown and the pri- soner. The suggestion of his honour, Mr. Justice Bowen, abundantly strengthens the argument which I have had the honour to submit in support of the position that the indictment is defective,- from its not averring that we were a subject, be- cause had it been done, we should have negatived the averment, and have been entitled to an ac- Huittal , I! i 574 m <' ■■i- Chief Juftiee Setv^lL — Not exactly so,, Mr. Stuart : ^Ccordiii^ b iny idea, there is anotheh, difiiculty tthich yoii:. Would li^ve to surmount :; when you had ^hewn iticontrovertiblj that f)e Reinhard, was Dot a subjeipt, 'that would only be half the boint )irbich it would be necp^sary for you to establish, so as to entitle the prisoner to his acquittal, under the clause to which^ iny brother Bowen has so cor- rectly, (and adviint^geously too,) drawn your at- tention. I will read yo^ (2or it is very short) the whole clause, sothat.yoii tnay clearly compre- hend it^ verbfOim et Utetatim : *^ 4th. Provided al- ^' ways, and be it ifurther enacted, tKat if atiy ^' crime or ofience charged and prosecuted under **^ this act shall be proved to have been committed ^ by any person or persons hot being a subject br ^ subjects of his Majesty, and also lyithin the ij. *^ niits of any colony, settlement, or territory, be- ^^ loilging to any European states^ the Court before ^ which such prosecution shall be had, shall forth- ^ with acquit such person or persons, not being such ^ subject or subjects as aforesaid^ of such charge.^' You will observe that this clause does hot put it into the poweir of the Court to aicquit him forth- with, eten if it should be allowed that he proved himself to be a foreigner, he must, beyond inak- ing it appear that he is rot a subject, go on, and also shew the offence tp have been committed *^ within the limits 6f aiiy ci>lony, settlement, or ^^ terrritory, belonging to any ifuropean states,^* befeHs it is in the power of thb Court before whoin the trial Was holding, to say that the prisoner ihust be forthwith acquitted df such charge. The pro- vision tnay have been dictated by some such sug- gestion as this ; relative to being a natural-born subject, it can be known only to the prisoner with certainty, the Crown has no opportunity of being acquainted therewith. The Crown might saj r. Stuart: .difficulty ivhen you ihard, was the boint estabiidh, lt?il, und<;r lias 80 cor- 7Ti your at- short) the ly comprc- rovided al- that if atiy silted under I comnoitted a subject bv rithin theli- Brritory, oe- Court before I, shall forth- ot being such iuch charge" «s tiot put it lit hitn forth- aX be proved [bejpnd inak- V go od, aiid IB committed [ettlement, or pean state*,' before whoin irisoner toust le. The pro- le ftuch sug- natural-born prisoner with unity of being [n migbt say thus, ** jou know, but i do not know, whether joii are a natural*born subject, or whether the offence was committed, but jou, the prisoner, if jou are not a natural-born subject, which we can not know, or if you shew, we can not rebut, as we can not prove a negative, must go farther, and to be entitled to demand your acquittal, must prove that it was within the limits of any colony, settle* ment, or territory, belonging to any &nopean states, as well as that you are not such subject as this act gives the power to try for any crime or offence committed any where m the Indian terri- tories.*^ i have stated that which appears a diffi- culty which you have not advertea to, that we may hear you upon it, as you may perhaps ob- viate what at present strikes the Court as a con- siderable obstacle to his acauittal, though it were established that he, in reality, was not a subject. Mr. StuarL-^l am certainly much indebted to your honour for so doing, but I would remark that we are not asking for the acquittal of the prison- er, or contending upon, or as to, what would have entitled him to it, but we are contending that, upon the face of this indictment, that which ought to have been averred is omitted, and that such omission, is a fatal omission, and ought to arrest the judgment of the Court, and in thanking yout honour for your obsewations, I do it because they most forcibly manifest that the prisoner hag been deprived of the opportunity of shewing that which, when proved, must have secured his acquittal. The indictment does not aver that he was it subject, he could not^ therefore be permitted to prove the contrary, because this answer would tmmediately have been given by my learried friends, *^ we do not aver him to be a subject." I say that th^y ought to have so averred him, because, if lie was not a subject, they had no right to try V (411 ! 1 , '. -f ■ I :> : • 'MS [■'I'l-f .il m :j71> him. The motneni: that he was not a subject, tlif* prosecution must stop, nor would the Court have a right, I take it, to try even a subject, if the olFcnc^ was put of the King's dominions. , . Jilr, Justice Bowen. — Perhaps that is not quite so clear ; dnd if you attentivielj read the 4th clause, I think you will find that his not being a subject is not sufficient forthwith to stop a trial, but, as was pointed but^by the Chief Justice, he must go farther. By the 5th clause you will find the. direct reverse of youi* last position to be law. It is in these last Words, ," provided nevertheless, that it " shall and may be lawful for such Court to pro- '' ceed ill the trial of any other person being a " subject or subjects of his Majesty, who shall be " charged with the same or any other offence, not- *' withstanding such ofTence shall appear tb have *' been committed within the limits of any colony, *' settlement, or territory, belonging to any Eu- •' ropean state as aforesaid," Here you see that provision is especially made for the trial of anj subject, notwithstanding his offence shall appear to nave been committed within the limits of any co- lony, settlement, or territory, belonging to any European state. Mr, SiuarL-^Uhe principle f advert to as com- pletely sustaining the argument I have submitted^ IS the great principle of public Ikw, that no natioti can legislate for the subjects of another, unless whilst they are receiving, in the territory of that natioil, the protection of its laws; and that allegiance and protection, are reciprocal obliga- tions; thus I say that the British parliament could not, by this act of the 43d, legislate for a subject of the United i^tates, jn the Indian territory belong- fng to the United States. I do not know that it could even for its own natural born subjects, but that must be the utmost length to which it could 577 . l"7; 'a'^ .CS^ar^r ' ^"*^-- Then n^'ps, that he prisoner ir„!!k^ii^"'?«don,i. he .s a foreigner" (arheiVandr"'' ''^ *^''^ »«=' if legiance, because thT 21 ■ "'^^^ "" natural al- inseparable frorth^ben.fiPr"'" "'"''"^giaoce 1, 'he latter i, noTrZwedVr''''^'' ^here f»d ought hot ,0 be de^tded TK- '" "°' '"^^'J' t-on that is true in the SunLif J' " " P"°P°«- 5th clause of the acf fT """""'etl sense. ^Phe nation or this prirf5;/£.Xt%'"'°''r» '^ «■»'- ^"has no hibftation^ by the ^JtLH^ ^'■'■'' ""at J.nncmle,.6f international l!ri?'*',''P'' P"hlic to talk of the imberfa?n, r ^' '''°»''' h« absurd China; thenXt'TSCitT?' !T'-ti"gfor terntoo. of anj other poir nI'"??'"'" ''°'- 'he ^on,m„ted in 'china, thnffinW '•''^'^'■'*"°ff«n«'« London, it can onlv be VhSe tW TS*"*** '« natural-born subiect nf .k d • ■ .* "lender is a therefore iocapibClf ever Jiv "/'''' S''"'*'^' «»J «hl-gation of a'^legiance Mv '''""S '"»'«e>f of the two or thtee po,n1s?a„d 5 In? I?""'- ""'"^'^^ 'oely necessaVv ,hat Z t^V y'' "" abso- •n the limits of theuS Sh* r'"";'"«*' «'''h- was committed withStt 'J^^' ft ^'^.°'. ^^at it then go one step farther Zl . ^ ? ''ommions. I necessary that i Sd f '^^ ''•^' '« '" «S"al|y Reinhari was a subject of t'^- "'T''^ ^at De 'he. right assumed^ he ,Sr^- ^.''o "ot admit eg'^lating for its o/n suyS'T;" '.""^ ''^^ of »7! I do not admit, nor do V^ T'^ *«"•"- 1 « not.necessarv that I ,h u,"^ ""^ righ'— ,'>'«"' for me to sLw ,hit It if *'° '"' '" « ""fi- l"» averment should hate bl^n "^T'^'y "'at from the Crown's own shewlr "?^''^' ""''' as I*" ii>- if?^ ^ V •.-«.' A. ri*>' IP"* i.li m 7- ■ - r^. '.I \ -,' fSi iA 67? )iii^t have been committed out of the King's do^^ minions, it should have been averred that it was committed by a subject of the King. Respecting the Indian territory m which it is charged the ei- fence was committed, and which the Crown offi- cers appear to consider a sufficient description, I observe that I do not concur with them in opinion, for several and, to my mind, weighty, reasons, and I first submit to the consideration of the Court that neither France nor England have, or ever had, any title, adverse to that of the Savages, to thrs territory } that they have not, nor had they ever, any possession de jure, or de facto, or any beyond the toleration given by the Indians, who are (as I shall presently have occasion more fully to shew) completely an independent nation. I remark that one of the persons included in this indictment is a Ikavage, ana he stands indicted for an offisnce com- mitted on his own soil, the soil of which he is one of the lords, as being one of the aborigines, in a Court of a country foreign to him, and to which he owes no allegiance, and of whom he knows nothing, but that he permitted them to trade in his territory. I would ask 6f my learned frlendsi^ if that individual was tried, convicted, and exe- cuted, whether it would not, according to princi- ples of national law, be a just cause of war? I would ask, whether, upon all the acknowledged principles of national intercourse, which are usu- ally known among civilized states, under the ap- pellation of the law of nations, that would not be the case? and in their absence, I would ask, whether they, knowing no civilized rule for their government, would not be entitled to blood for blood ? ^' You have taken the blood of our brother, and we will cause the blood of your brother to be shed to atone for it." That this territofy is theirs is evident from the actitself which calls it Iru^n mn, become ou^«. LTa i "eto ,'"^"7' H •« «»«; verjr naturallv arises out „f t».^"*"^'^*«"» which *»"'. I ao. aware thaHt 1 ''If ^'^ "<' *« «"•«"- ar« satisfied with vlt i3,?„?^ *"'^ *hat natiL The erection, for mltunce 3'TS "^ °'=''"P»ncj. "me a rea/, or ims^ein^^yluf " %-P«>st it tfie be „,ade. As a par "of fc:'?^ P'''.«=*'' Ws ?« them to be bi".2M.''^''*«f*"»'' and ought "■"posed by the awof'naS'! ^''" °''%««'0W benefits in Which thoTecivSiJ^H r'"8^ "-^'^ ^h^ Ifrticipate, but it is no „ "^""^ °^^^ earlh '^at the Indian tr bos Xu^d'f "^""-^ o*" '-mperative "on. or that lliey sho"M 7. ^''f of Quebec bjr one of the chi.T^- ?"P'»"'* made in had received and nourished Lw"".'"'"'^' ""'r become their oppressors Ah ^' ^'**" "''on/, pccasiop vet to make ";.nK ""' "l^^ """o "o W%ae/the ciSsVnce . * T^P^"*' «'«' » «tuationin which thTSn „"r*"" '^t '''''^^«»t to those with whom we are mo^ "* ■"^'"' «'«'•« fong .t a.ay be beforthe^'^tke S?"""'*''-. ''°'' t>oa we can not say. wZZ^th ""T '"'»«- are now small as L reeds of i°'t *?'*"•''' '^bo complained, who are ^rmi,L^'""'* "'«' «aohem their convenience, but C 11 f '°.T''* P"^'" ^r possession of the \SlTtoU"'^T'"' »«""I 'rees, and become he scour^-t fT*'"'*^ "P '"o protect them, remans in ♦h?^ "^ "'°«' '^ho'^now ' conclude mj aSme„ 1 1. ^°'°" °'' "«'«• Bui acM posses/on fas ever ^0"^^^.""''' « "o ""•J: by the British'oa^i^;, SaTasfo "^""^ ♦*"•"- session was ever taken nf it lb. "° adverse pos- nation it might bltplej fhftT'*i ^"T "^^^^ an authorii/to legis aTfor Zl^''?'''"'^ ^'^'"'^^ "sh legislature could not for LI "'"'7' ""^ »"- '"J right to make la w" ^ Wn^ °"."'' *"**"'"» '"bjects, in the Ind^aTtlrri orv'"^' ■*!;' 'T »*'» *at they could even go ihat len^.h^'l*''* ^ «''°"'t admitting or denying the rL»^"'' ''"«• «"tbout «"bjec.s, .-, couldVxlnd LT?k' °""'" /''«'■' own wbfend that it was m^ ? '^"''.*'"- ^ therefore Cbarles De RelnCd"; T^A '\^^''^ "«' *-t.asco^mrd:!t£tess^^^^^^^ ..'■ il ■ ■- . Pi IW^ m'gm m iSiiJl-J < H' ■■ ^ « ,1,' m2 Indian territories are not part of those dominions I consider to be satisfactorily established, not only by the Indians making peace and war as other in- dependent nations do, but, I think, it will be evi- jdent that this hftdependence has been, and is. re- cognized by Great Britain herself. If 1 only Vefer to the numerous treaties inade with the Indians by the British nation, I completely establish my point I need, indeed, only look to the very act upon which this indictment is founded, and I de^ duce the same favourable confirmation of my fo* sition. It is an act for the pnnishmeni of crimes and. offences committed in the Indian territories. It is not even called the British territories, and must be inte**^ded to bring to punishment persons owing allegiance to Britain, either from the offence being committed in the British dominions, or from the offender owing a natural allegiance to the British Crown, and neither of these alKimportaot characteristics ^re avowed in the indictment We contend that both are necessary, and wei consider that this circumstance, in -conjnnction^with the other arguments wehiatve had the honour to submit, furnish ' grounds which wi41 induce the Court to< accede to our motion in arrest of judgement. jittome^-Generai,-'ln reply to my learned friends, I beg to contend that the case cit^d from East, of the King against the inhabitants of Oxfbrd, I con- aider to be conclusive against the argument to shew that a new trial can be granted. The course to be pursued, if any of the evils tvhich my learned friends have so feelingly described should occur, 18 there distinctly pointed out '^ In capital cases ^ if a conviction take place at the assizes upon in* *^ sufficient evidence, the common course is to ap- *^ ply to the Crown for a pardon^ upon a full re- •* port of the evidence sent in by the learned judg6 J* lo the secretary of state for the home depart* J '2\l I\ 693 consider mj Jearried frfe" d ' ?"' ''«'»/*. :;n Mai^ar^^t'Sle; «ct't ,t? '.''«' J"fc " to be considered thai ■•»?„ I J '^?'' '* «eemed »re the «,r, of c„es wh ch «'/,r' '^•^ . »<•*«.« reduced to the necessity of n^'^. • "'°'' ^'''^"<'* are 'hat a new trial may £ iCldT^ '? ».""«'"^'es ,ef a capital nature, f apnrK " "'H"'""'* ''^^es not be disposed t^ (^"^^he firi^'"'!.'' "'""' "^''l that It can, by grant^ one i^V"'^^^' !° ^»''«=e ^"v th^ po^tive it^ ;" s^rj i? "pp°- that they can not be ffran W ^u . Kenyon, '«ngth ^^.hich the resfa^h „''; ^"" ""« "'"""^ enables then, to add^e di^ "^ '''^•■'""' '""ends *at the point is not yet ,1 tfe"^ "Ji'"'°""«"' i''. after a debate between , he whfl '" ?"?'""''' ^u rtseemedto be consfdi^'d th^t it'ci''uJ"^8*'' This was in 1781. A ffreat dll K ?"'*^ ""* *»o. »7 learned friends, parSarK *" H"^ "^^ ^T S'«arf, upon the haVSSSl ^j"^ "7 friend, Mr. and o,her cases of a sSSarnatu "f '^T '" *»"'' pot being atle to erant new t rf,l i ^""? *« ^^"'t M merely imarinafy «nS J ^'*' '"'* *''« hardshio " .ewmiied. ^Ev5^fJ'2r'-' '5« «»o»en?^ <*'ves he would ga.{ by f „T^ 'f^T 'J ^'end con. fak-ng a motion L an/w trfT. ."i ' '''•"'"'^'' '''e ^ ^..' ;■ v t 584 tion of the Court to whom the motion i« address- ed, hu can eflect at present. Evei*y thinjr tha^ could be shewn upon tt motion for a new trial ad- dressed to the Courts can now be shewn' in an ap- plication to the protecting and sure remedy against improper conduct on the part of the jury. Apply to the mercy of the Crown, but certainly not to the Court fpr a new trial, who,sny9 the dictum of my Lord Kenyon, can not grant it. And if k could, what is the advantage ? the Crown can at once remedy the evil, whereas a jury can notv On the subject of the confession of the prisoner, and of the actual death of Owen Keveny, my learned friends took nothrng, npr could they, as they olearly were not topics that could be argued on a motion for a new trial, were your honours even disposed to be of opinion that you could entertain such a motion. I would, however, just remark, relative to the con- fession, that my learned fri^^nd^s observations might have had some weight if the cenfession* had not been in the prisoner's own hand,- vyri ting, but now they Can not possibly have any, for the confession, being in his own hand-writing, is a complete and satisfactory answer to every thing that has beery said relative to it, as he there acknowledges the murder, and details the circumstances which un» fortunately led. to, and attended, its perpetraticn. The next point urged by my learned friends wa& one of considerable delicacy, though unquestion " )j\y one o^ solid right, viz : the supposed misdirec- tion of the Court relative to the boundaries, but as, in the former instance, they gained nothing by their objection, as they had, during the trial, urg- ed it, and after all of us being heard at length up- on tlie question, your honours solemnly decided it, and the jury, in appreciating the fact, adopting, as they were bound to do, your honours judgment on the legal points submitted and disputed in the ar- idflrcss- np; tha^ trial ati- n an »p- 7 against Apply y not to (ictum of f it could, [I at once On the and of the ed friends jarly were ijtion for a ►08ed to be ) a motion, tothecon- tions might oxv had not ,g, but now confession, >mpletc and at has been kvlcdges the |s which un- lerpetraticri. friends wa» jnquestion ' [ed misdire*.- ries, but as, nothing by [le trial, urg- it length up- \y decided »t, adopting, as liudgroenton ed iu the ar- A84 gument, b^ve, by their verdict, set completely ut rent the question of locality, (at least as far as we CBM possibly have to do with it,) that verdict de- €(aring the prisoner guilty in manner and form as he stood charged in the indictment. The indict- ment charged hib with having aided, helped and abetted, one fran^ois Mainvilie, on the ^^ eleventh ** day 6f September, in the fifty sixth year of our ^^ Sovereign Lord George III, with force and arms «^ at a certain place in the river Winnipeg not ^' comprised in any 'parish or county, but situated ^* in the Indian territories, or jparts of America not >^ within the. limits of cither of the provii^ces of '* Upper or Low^r Canada*, or of any civil govcrn- '^ ment of the Uqitc^ States of America, but with- '* in the jurisdiction pf this Court." Here the questions of locality and jurisdiction are directly met by our charging'the oQence to have been com- mitted at a certain place ivilhoui the limits of the province, &c. but, nevertheless, within the juris- diction of this Court. Upon this statement the point of law contained in the indictment was rais- ed by my learned friends, aric{ discussed, both in re- lation to the locus in "quo^ and to tjid jurisdiction of the Court. The one ws^s iinally determined by the verdict of the country, and the other by the judgment of the Court. > Jhe Court decided the southern and western bouiiclaries of his Majesty's antient province ofQ^cbc^c ^0 constitute the south- ern and western lit^its'of his new provinces of Up- per and Lower Canada,' and the jury, £issisted bj that decision^ by their verdict, say,' "we have '^ proved the death to hiave taken place without " the limits of the province, &c." • Again, the in- dictment, in the counts upon which t)js I^einhard has been convicted, charges thi\t he was aiding, helping, abetting;, comforting, and maintaining, the said Francois Mainvilld to commit and perpetrate *'?l '■•^I ■ 1' . > 5 i i 5B6 ;r .1 I- i'iil ■f IS ' 1^1 ^; ^., I , f^ I: > a felony and murder, (at this certain place so as aforesaid described,) by makinj^ *^ an assault upon .■** one O^en Keveny in the peace of God, and of ^ our said Lord fhe King, then and there beinir, ^ with a certain other gun of the value of live shi|. ^ lings charged and loaded with gunpowder and si ^ ieaden bullet, whicl) last mentioned gun he the *^ said Francois M^inville ip both his bands, to, a- ** gainst, and upon, the said Owen Keyenj, feloni- *^ ously, wilfully, and of his majice aforethought^ ** did shoot off and discharge, &c. giving unto him ^ the said O^ven Keveny one mortal wound of the *^ depth of five inches, and of the breadth of one *^ inch, of which last mentioned inortal wound ho " the said Owen Keveny then and there instantly *• died,'* Ant} the counts conclude by saying— ^ And so the jurors aforesaid, ii|K>n their oath a- ^ foresaid, do say th at the said Francois Mainville, ** Charles De Heinhi>rd, Archibald M'Lellan, Cuth- *^ bert Grant, Joseph Cadotte, and Jean Baptists ^* Desmarais, him the said Owen Keveny, then and ^ there within tln^ jurisdictioii aforesaid, in manner '^ and form last aforesaid, feloniously, wilfully, and *^ of their ma,lice aforethought, did kill and mur- ^ der, against the peace of our sai^ Lord the King, •♦ his crown, aiid dignity." If ^® ^^^ "<>t provect the death of the man we should no.t have support- ed our indictment ; the same observation will suf- fice as to identity, for it was Owen Keveny we charged as having instantly died of the mortal wound which was given to him, and the verdict of thejury says, that it was Owen Keveny who was feloniously assaulted by Mainville, and received from him one mortal wound of the depth of 6ve inches, and of the breadth of one inch, of which last mentioned mortal wound he the said Owen Keveny then and there instantly died, and the pri- soner Charles De Rcinhard is found guilty, in man- li.i,!..; A 687 ilaoe so M tsauU upon od, and o( lere being, of fiva shii- wder and a gun he the lands, to, a- ^eny, feloni- forethouffht, ng unto nim found of the eadth of one al wound he icrc instantly by saying— their oath a- 018 Mninville, •LeUan, Cuth- ean Baptiste cny, then and lid, in manner , wilfuUy, and kill and mur- ord the Ring, d not proved lave support- ,tion willsuf- Keveny we ^f the mortal [d the verdict reny who was and received lepth of five ^h, of which je said Owen [, and the pri- ;uilty, in man- ner and form as charged, of having been present* aidlnp^, &c. the said Francois MainviUe to ccmmit fhe said felony and murder. These points there- fore were conclusively settled bV those if hose se« veral functions gave them authority to settle them. There remains nothing then tb consider but the question of jurisdiction, in relation to its extent, as conferred by the act. One objection of my learn- ed friends, and particularly insisted on by my friend Stuart; was, that the rigorous construction which he contended the act conferring jurisdiction inde- pendent of locality, (thereby trenching, as he said, upon the fundamental principle of the common law^ that locahty atone gave power,) precluded felonies from bein^ taken notice of under the general term *^ crimes and offences.^* It appears not to be se- riously qu^Stiohed, (though c\c>ubts were said to ^itst on tlT0 ifubject,) that in a case of felony committed in the district or in the province, the Coui'ts of the ^^eyerar districts of the province might, under th^B general description of *' crimes «i or offences,'* take cognizance, but my friend Stuarty says, as the murder 'was committed in the Indian territory, it must go home for trial, be- cause the right of ttying Tor felonies committed in places over ifrhich an extra-judicial authority has been given belosjgs ^lone to the' parent state. It was also urged by my learned friend who ad- dressed you first, that the constitution of this Court was such as to prohibit cognizance being taken by it of felonies comrriitted in the Indian ter- ritories, for, said the learned gentleman, ^' your honours are ntH judges, but commissioners, and the act of 1803 requires that judges shall belonv to the Court taking cognizance of crimes and of- fences committed in the Indian territory, 1)ccause, said my learnt frien'is, " it is to judges that the power of issuing subpoenas is granted or given by Ht Ml r'i ^1 i ■i.. t' fc 'J l^ t.' 588 the act.*' Another objection of my learned friends, which may be associ^ited with this part of tlreir argument, is the difierepce in the words Court and Courts^ as applied to the two provinces. It is^ say the learned gentlemen, the Courts of the Lower province, whose power or jurisdiction is extended, and this is but a Cotirt, and, as presid- ients or commissioners of this Cpurt, your ho- nours are not the J»dges of the Courts spoken of in the act, and they consider this a? additi- onally supporting their position that a Court of Oyer and Terminer is not included in the act of 1803. It is constantly, they urge, the plural number in which the statute speaks of ^Kthe Courts'^ of the Lower province, and in the singular ^^ the " CourtV of the Upper province. There is one other point of objection made by ray learned friends, closely connected with this part of the question, which I will mention, because, I believe, 1 shall (hen have enumerated ail that were ad- vanced rielatiye to the constitution of the Court, and the necessarily limited powers which such formation enabled it to exercise, and I propose to advert to the whole of them at once. The objec- tion was, that the Court over which your honours are presiding, was not thep established, and there- fore could not be meant. On these objections, I say, first, that, in reference to the act meaning the Courts then established, there is nothing in the act itself which indicates that its operation was to be confined to the Courts il^ established, or to re- strict its extension to any Court that might here- after be established, proved it should be a Court in which a crime or offence of a similar nature to any sent from the Indian territory could be tried, if committed within the province. .A Court of Oyer and Terminer and general gaol delivery was well known to the provinces of Canadai' bj^fore ^sd the passing of the act by the imperial parliament, and murder was a crime usually tried m them, if, when they were held, there were persons accused of that crime of whom the gaol required, to be de- livered. I should think the more rational con- struction of this clause of the act would be to con- sider it as meaning the various descriptions of Courts, in which offences of all the difierent de- grees of enormity are severally tried, if committed within either of the provinces, and, admitting that interpretation, we all know a Court of Oyer and Terminer an,d general gaol delivery, is a Court wherein felonies and murders are tried, if ^there happen to be any felons and murderers of whom, at the session, the gaol requires to be delivered. All, I contend, meant by the act was, that an of- fence committed in the Indian territories should be prosecuted and tried in precisely the same way as if it had been committed within the body of one of our own distrii ts, and a Court of Oyer and ^Terminer, being a competent Court to try a mur- der alleged to have been committed in the district of Quebec ; a Court of Oyer and Terminer is, and must be, a competent Court to try the prisoner for a murder perpetrated in the Indian territories^ under this act, which directs that the offence, tvhether the crime be a felony or a misdemeanor, *^ shall be, and be deemed ta be, an offence of ^^ the same nature, and shall be proisccuted and ^Mried in the same manner, as if the same had *^ been committed within the limits of the province '* where the same shall be tried under this act.'' In fine my learned friends contend that no Court that was not actually in esse at the time of passing the act of f80X is competent to try under if, whilst my position is, that these terms in the act, ** usually tried^ and where the same Would have *' been tried," &c. have reference io the time at mi- 1 *.--i?. S90 iiirmch the ofieiibie require^ to be trIeJj and, under this coi^struction, any person now in tho gaol of ttiis, district, upon a charge of murder will receive hifi tnal before jour honours at |his Court of byer and^Terminei* and gefieral gaol delivery, and I fartiier ipontend that a Court of Oyer and Termi- ner, beihg known to the constitution of both pro- vinces of Canada, before the passing of the act of 1803, was sufficiently in esse to pe adihitted, (eren under iny learned friend^s inter jpretatiod as to the necessity of its so beings) to a partici- pation in the iiitended jurisdictioh conferred by that statute. Having established that the dbjec- iioD against this very Court not being in esse in 1803 must fail, as well as shewn its power to try ibr felooies committed in the district of Quebec^ it is necessary to follow up the enquiry, and prove that there is nothing that disqualifies it from exer- cising a similar jurisdiction over offences committed in the Indian territories to that with which the ether Courts of the province are invested. Mj learned friend*s objection is twofold, your hdhbiirs are not judges, but commissioners, and it is the Courts of Lower Canada to whom power is giveu to try, &c. As to the distinction arisirig from tlie plural number being made use of by the act lelative . to Lawer, and the singular when it speaks of Up- per, Canada, I imagme a word will suffice. In the Upper province there is but one Court usually trying crimmal matters, whilst in Lower Canada there are more. The objection received as to your honours is equally unavailing. Your honours are, for all the substantial purposes of the administra- tion of criminal justice, at this moment judges, as fully as if sitting m bench or at bar. Having power to coalpel the attendance of witnesses, and to fulfill all the duties attached to the office, from the trial of a larceny, to the passing against a prisoner the ' ''U- Istl.j ■«» , under gaol of receive ofbyei- r, and 1 iTerml- loth pro- f the act idttiitted, pretatioii a partici- Perr^d by ;he objec- ifi e$S6 in wer 10 try X Quebec, and pro^e from ^*^f" I committed I \?hich the sted. My ,ur honbuTs ,d it 18 the reris giveu ig from die , act velative . leaksofUp- suffice. In poart usually [wer Canada jd as to your ihonours are, s administra- it judges, as iaving po>J«v iandtofulfitt [rom the tna^ prisoniW tD« Ail judgbeDt of death. On another poiAt sugeeste^ by my learned friends, as connected with the o^ fence charged, I think their observations very pe- culiar. It, says my learned friend, it shall be found that a Court of Oyer and Terminer can take cognizance of offences committed in the Indian ter^ ritorj, still its ubwer is, by the act of 1803, ex»- tended only to tne trial of misdemeanors. This i» not an objection to this particular Court) or toi Courts of Oyer and Terminer generally, oatlie ground of inferiority of jurisdiction, hut is an ob- jection founded upon the wording of the act which gives jurisdiction to the Courts of justice of the province of Upper and Lower Canada for the trial and punishment of persons guilty '^ of crimes and otfences'^ within certain parts of North America. These words, ^^ crimes and offences,^' only give the power of trying for misdemeanors, and conse- quently, according to my learned friend's explica- tion of the act, no Court in Canada can try, under this act, for a felony, because, as he argued with •me degree of ingenuity, felony is no crime. • A conclusion which, 1 confess, I can not see how my learned friend arrives at, and one certainly very dissimilar to those which Mr. Justiee Blackstbne, in his Commentaries, so clearly lays down, and se incontrovertibly establishes. I beg to refer th6 Court to Blackstone, 4th volume, cap. 1, pages 1 to 5, for an accurate definition of me nature of Crimes. *' A crime^ or misdemesnor^ is an act '^ committed or omitted, in violation of a public *^ law, either forbidding or commanding it. This ge- ^'Deraldefiqition comprehends both crimes and mis- ^' deipesnors, which, properly speaking, are mere ^ synonymous tennis, though, in common usage, the ^' word crimes is made to denote such offences as are *' of a deeper and more atrocious dye, while smal^ *^ ler faults, and omi&sionii of less coosequencc, are 'N:^ ddii m i*«Hi ■*/*'• ''''■'■ Til.:; ^^■.•■ ' ■ ,. ■■'■*':: " ■ mm '''■ i:: Mi, 1'^. ^ '^ compriseci under the gentler names of misdemrsn- ** ors only." • Here, I think, we have authority which yljioM justify us in opposing a contrary opinion to Our learned friends, and in saying a nouraer, being aii b£knce of a deeper and rr/ore atrocious dye, is a crime; but we nave no occasion to advance our own apprehension upon the subject, fo^ Sir Wm. Blackstdhe expressly telU us, in the sakne page, ;ti?hen enlarging upon this gbneral distinction; ** treason, murder and robbery, ire properly ^^ ranked among crimes,'' and he giVes^ in very few words, the reason, *^ since, besides the injury «^ done to individuals, they strikeat the very being ^ of society, which cati not possibly subsist where ^^ actions of thid sort are suffered to escape withim- '^ punity." Having premised in the foDdwing para- graph, that ^ in all cases the crime includes an in- " jury," that ** every public oflfence is also a private, ^^ wrong, and somewhat more ; it affects the indivi- ^ dual, and it likewise affects the community;'' he says, in applying this principle to the crime of mur- *^ derf murder is an injury to the life of an individual, *^ but the law of society considers priticipally the ^ loss which the state sustains by being deprived *^ of a member, and the pernicious example there- « by set for others to do the like." In relation to the act of the 42d, and the case of Shaw produc- ed upon it by my learned friends, and so confi- dently relied on by thein, I remark that, if that act is ejtamined, it will be found to have been made for a very different purpose. It will be evi- dent in a moment that the object of that act wals to prevent, or punish, the commission of frauds* but very different are the objects oi' the 43d. Its preamble explicitly sets out by a declaration that, ** whereas great crimes and offences have been ** committed in the Indian territories and other •* parts of America." &c. " and that great crimes 593 isdemrsn. itywlikh ►pmion to ', being au dye, U a ranee our Sir Wm. itoe page, llslinction; J properly esi in very 5 the injury : very being ibsist where ape wilbim- dwing para- ;\odes an ^a- jso a private, ctstheindivi- infinity ;" be icriiheofmur. m individual, ittcipally Ibfe ing deprived ample tbere- n delation 10 ibaw produc- ^ahd soconfi- k that, if that [o have bceri It will be evi- ithat act wd9 00 of frauf* the 43d. Its claration that, es have been •|es and other great crime* ^ and o£fcnces have gone, and may hereafter go, '.« unpunished^) and .^grtatlj inqrease,'' to prevent whicn th^y p)*ay his Majestj that it may be enact- ed, and by the statute it is-enacted, that all ofifences coiuQlitted in the Indiaif territory shall be deeqaed to be of the sauae nature, jshall be tried in the same manner ia the Courts of the provinces, and subject to the same punishment, as if they had been torn- niitted within the province where the trial is held. In Lower Canada, felony is a crime; crime, in- cludes murder; niurder is tri^d in & Court of Oyer and Terminer, which has power to award the pu- nishment, which is death. It apt^ears to me, there- fore, that, iti every respect,; the offence of the pri- soner is included m the act, and may be tried. by this Court as far as depends on its constitution 9^d the right of jurisdiction; it remains only to consi- der the objectiohs to the manner in which the in- (lictmcnt accuses him, and this, my learned friend says,, is defective, because we have not averred him to be- a subject. There is one remark that^ upon the act of the 42d, I omitted, which I will submit before I enter upon the question of the in- dictment. The £^Gt of the 42d, as I have shewn, was for a very di(ferent purpose to that of the 43d, but I would ask of my learned friends, whether, or by what rule, it mii^t necessarily- follow, that> because, by one act, power is given to try /or mis- demeanors, it may oot, by another, be extended to felonies.^ 1 would ask uv what authority it is that the wisdom of the British legislature, is to be re- blricted to the mere power of conferring jurisdic- tion over misdemeanors to the Courts of the Colo- nies, if they see fit? I now proceed to consider the objection raised to the indictment, and in' reply to it, I contend, first, That it was unnecessary, secondly, That it would have been improper, to have averred that De Reinhard was a subject, oc ■n u9. • -M n .1 ^L'^^'l fe P F ■■■»,.i<>i ' 594 P 'ml' .' '- >' iv ■.y^-*? that the offence vtras committed in the King^s Jo.' minions. That it was not necessary to.aver that he Mras a 8ul)ject, 1 refer to the mdictments under the act of 35th Henry Vin,to be found in Chitty, as pre- cedents. These were indictments upon ih^ statute which gives power to try foreign treasons in the King's Bench, or by a Court ofOyer and Terihin- cir, in any county appointed by the commission. Hawkins, in setting forth this act, declares it to be for a remedy and declaration to clear up the doubts which before existed upon the questions, as to in what manner, and at what place, high treason done out of the realm was to be tried, and by the act S.lth Henry VIH, cap. 2, treasons, &c. done out of the realm of England, '^ shall be from *^ thenceforth enquired of, heard, and determined, ^^ before the King^s justices of his bench for pleas ^^ to be holden before himself, by good and lawful ^^ men of the same shire, where the said bench ^^ shall sit and be kept, or else before such com- ^* missioners, and in such shire of the realm, as " shall be assigned by 4he King's Majesty's com- *^ mission, and by lawful men of the same shire, in ** like manner and form, to all intents and purpo- *^ ses, as if such treasons, misprisions of treasons, ^^ or concealments of treasons, had been done, per- ^ petrated, and committed, withhi the shire where ^' they shall be so enquired of, heard, and deter- ^^ mined, as aforesaid." Here then is a statute pro^ viding for the trial of an offence, whose very es- sence is that the individual guilty of it was a sub- ject, and owed allegiance, committed out of the realm^ directing that it shall be tried by lawful men^ in like manner and form, to all intents and purposes, as if it had been done, perpetrated, and committed, within the same shire wnere it shall be so enquired of. Nr * )g can, I think, be more direct jn point than this, but upon reiereoce to 595 Mctmehls upon tiiis „,-,„. /• M out of L ri aS fh/"'?" f""'^ com- was not thought necessTr^^. . ''•'^'='' *»« ^nd it elu^ve, tfat J abstain f,l 1% •'''''>? ><> con- further „„ ,his objecL, To h '"^ ""^ ^^o*""! cont.»uai,on, J submi. .k . r «"<'ciment. !„ -nt ha. a Vigh. tot'i ft .''""*'' S"-™' legiance, they are amenihl! . '/°''*«° ">«"• al- coumrf but of the .lab? '" /''« 'aw's of the t;' •■' 'vifl not be t :i";'^r "^ ^^ '■'• "^•hin it! of your honou,^ farther o"^ ^11^?*' °" '"« f-ne fence was actually comLv?J'"' P"'"*.' «« «/»is of- 'f'^a-'^e »rc do n6t ff™„ 1^ T ^"'"h '«rri(orv' •Aeface of po,i,.Ve acW "^ '^^--ned friend,, fn ofboundar/hoes run ami ^f '"'"'""'"*' "f treaties % he Hnlish ifoverhmpn/! '"^»■as considered '" "'e C.,nvn of G eatfir ,«f *7""'">' ^'''""g V " h respect to not provinH. • '<»"«'de'^tio„. , '"I'ject, ,t is true tba' X fl t P^" "^'- *« ^e a T'«s proof that a person *=''""'« "f «he act Jat .lie offenc, was cSted »•.." '"'/>'^'' -"d «^ a colony, settlement oTterir'"^ .•''** '''■»'■'« M European Stale, before a '•°'^^' ''«'<"'g'ne to Jj' »'?'".te. shall be tnhwff'"'""': ''>'''«'e'f on IjW « ,t required ? Not tf h'' ^"'3"'"«<' J but of J-ny learned friends e,lire J^ ^'■*"'"' «""'ai„|y. Ifeanswerisapp pypbow so? why not'^ K, becauseT" a 'ei ""^ -^ir d ^of ^be P"er proved bv tli» ^ . '""*'ance that can be Kiomplete^^^ t:P"?7«'-- h is a circum! 506 if ,r. ,-fM: He^ "' ^ '' l^iBs '^^p . ' \ BHK> !^^ i^ l^^iffl '^1p8 wM^al' ,' ^^ -^ '-' ^^^'. ■.■,;-;■, ffi-p ■■'H''- ^Ki|K '■■ ' ^([y- BMi^^BK : ; /-» y-.^ ■ n^W*'Jj'BR ■ ' • .^-' E^lBtf^ ' flR( "h , 1 M^E ■ • ffln -^i ' ' W^^^'W^ ''■■"' '*^' "P' 'f'^i SBf' 'JWk i^* '<^'' -^ ' ' mil ^3-"r||;.m, ^^^3^H '■■■*' i' ■■ a*:* ''^^' H'liiii we bring home to a prisoner the charge laid against him, he adftertd that he was not at th« place at the time ; upon his defence he must prove this to entitle him to nis acquittal^ and in proving that he was not where th6 indictment charges him to have been he must shew where ho ;n^as. So in this case, we charge him with being accessary to the murder of Owen Kevenj; the Cruwh was not called upon to destroy its own case by averring that he was a British subject, because if it had averred it, the onus probandi would lie upon the Crown ; it would hav6 been bound to have proved that which it is at all times difficult to dubstantiate satisfactorilj, viz': the birth-place of the accused. If the prison- er had made it a part of his defence that he was not a subject, he had at once the evidence in his own hands, he would have been put to no inconveni- ence on the subject of substantial ting that which be alleged, but my learned friends appeared, till your honours reminded them of it, to have forgotten that it was necessary that a prisoner should go a step beyond the shewing that he was hot a sub- ject, before he would, under the statute, be enti- tled to his acquittal. By the fifth clause, the in- tention of the legislature isi so clearly exhibited, that my learned friend's argument, though certainly very iiigenious, must totally fail, for it is Hot left in any degree of uncertainty wh^her a British subject can be tried for crimes and offences committea ii the territory of another state, for it ^ipressly de claftes he may. It reads thus, " Provided never *^ theless, that it shalt and may be lawful for suci " Court to proceed in the trial of any other perj *' son, being a subject or subjects of his Majestj ^ who shall be charged tvith the same or any otb " offence, notwithstanding such ofience shall aj *^ pear to have been committed within the limits ** any colony, settlement, or territory, belongi b Ci m to ie to no inconveni- 597 -"so"fta^'^"* "" "'•--aid... lie,, ted in a foreign state, ,/,e*,/°' ""^n^es commit. argument, .therefore Ir v "^ '^'^^^ rriendC ^"'"'C? to charge the ^ff'"* to ,he defect ,C milted fn the k.fo-'l 1"5?'?*'« "> have been com Pr^ss/J authorizes the S> '"'"''"/« ">« act J"- dommmns, so as it is „o7'^''/f 5' °"' ofthcJUnl'l ^o.fre eniitJed to hisacnT,;,.! •'"'•'* of America ^relyto prove pne ^ tS '' ''"f "°' ""^S 'Dg (hat he was not a , >l!- : P"'"'*- His prov "ff; ^'s proving that "^•/*'=L.'^°''W not besuffi •"'f ^ ."viti;;,, the^KtU*^^ <5?"'=« ^^^ "ot co«: Hre the Court can ac^ui? "^* "^'"'«' •' musT ^d prosecuted under 2"c, ^1^ f^''"" charged «ffence was committed nof' ^ ^"'^^d th^Uhe . %'8dpmin/ons, bu ato^-,.""'^; ""' W""" the g'"/. settlemen't, prtrnS'" I^t '^""'^ "f^oSe European state • an,T ,' ^'^"'"f/' i>e/onff nff to an^ «oas„eharged;„Tj,o'Sf>''4tf^^^^^^^ . *« Majestj. There r.."*""* a subject «f 598 w P ' _ ■ « -:■ ''^ > ft' 'f/ ■ Mi ^'' ■ 1^ ^ ■i • M - ''■ 1 1 'T" '''ffi| if 1 •. ^, ■tii. '-^ ^ 'I- had he proved, what the act renders it nccessarr to prove to entitle a prisoner to his acquittal, ami which, 80 fbr from debarring the consideration ot* the question of subject or no subject, it would have formed a part of the question at issue, be- . cause he is charged ivith having committed this offence within the jurisdiction of this Court. To be within the jurisdictiorv he must be a subject of ihe King, or the offence must have been committed within the King^s dominions. The points there- fore of subject or no subject, and of King^s domin- ions or not, were fairly included in this issue, and npon it the prisoner might have said, T am not guilty in manner and form as I stand charged in the indictment, for I am not a subject of his Ma- jesty, and the offence was conimitted within* a co- lony, settlement, or territory, belonging to another European state. Having proved this, we know the consequence; the Court woukl have been bound forthwith to acquit him. Another ground of objection by my learned friend, Stuart, and In- sisted upon by him at very considerable length was, that the British government had no title to this territor)/. My learned friend by saying that there was no title m possession of the governtnenf, explained that he did not mean they required a title-deed as an authority, but he said tney had never acquired a right either by occupancy or con- quest. My learned friend, with very great inge- nuity, represented the Indians as having a govern- ment cfe /«c/o, and a possession rfcyac/o, and would induce us to believe, that very great hardship and injustice would be done to this independent peo- ple, possessing, to use my learned friend's own strong language, all the attributes of a sovereign people, by its being determined that the Courts of tne province of Canada, through an act of the! imperial parliament, had had their jurisdiction eX'B/br 599 ^nd .n which, .s far as pote ±" """V'^''^ "v^.' ibe nght of govem,nr,h ° r.-l" ^"'"""••rato justify ,he,> leSBhtiJt acLf "** ffo^^roment gov- "ght that Great Britain^ '*■ '^'''^ « t^,e mense territory 1,?u" P^^^^" over this ;i^ » 'h^ act is'^'re dl.V •rj'''^^v'K"'''''- ♦-'4' f'ons appear, whenever the?„ ^^''«'-7«>- the In- "«. for to whom do thev^n .1 ?' '" '" '^'^« •''ev 'o their Great Father % ,h^ ^7 P^'^^'O" bu{ opposition to mr learneW / .*''T*'°'"« '^"ntend, i„ "7' « not defec^tiVe, "hat he"'S- "'"•""' '"'^''^ ' H "-henit «char^;da, bri^^ "-^ " P'^P^^iy o'^our Lord the Kinff th„; T^ T'"'' ">« Peace --o^aveave:'.7£ttp';?--rC^^^^^^ "ill !.!' 600 H^ mt I ) ^* ■ subject^ seeing that, in default of proof, the C lier stage of the argument I took the liberty of stating to your honours my belief that the mo- tion for a new trial, in a case of capital felony, could not bo entertained by the Court.' I still feel considerable confidence in the correctness of the opinionV but it is Certainly with the greatest defc- rencc"ihat> as the basis of my observations, I as- sume it to be law, that the motion for a new trial in this case can not be entertained. Whatever confidence"! before felt upon the ubject tan not but be increased when, at the present moment, I refer to the arguments of my learned friends,' and find that airtheir ability andl industry in research could not produce a single case to support the contrary o|l)inion, for the utmost length tnat they discovered any authority to go, was to say that it was believed the matter was not finally settled, but that the general -opinion, upon a debate of the whole of tne judges, appeared to be that it could not be granted. Thus situated I feel persuaded your honours will not, in k case so completely no- vel, accede to the motion for a new trial. But we do not rely upon negative evidence in the opinion which we submit of the incompetency of 6ur learn- ed friend's proposition, because the case cited byi my learned friend, the Attorney General, from 6tD I , the V^rowTi nent For li no doubt , the Solici- )n (or a new ;ourt, whilst itail ihe pri- ich my learn- ty, gubmitted a Bew trial » . At an ear- the liberty of that the mo- r-apital felony, rt. I still feel cCtncss of the greatest dcfc prvations, I as- for a new trial .J. Whatever ubject can not csent moment, led friends; and try in research to 8\ipport the ength that they IS to say that it ally settled, but debate of the 36 that it couW feel persuaded completely no- atrial. Buty^c e in the opinion ',cyof6urW ic case cited hv I ;eneral,froro6lh 6ai Term Reports, containing the dictum of my Lorl l^enyon, that in one class of offences, those greater than misdemeanors, no new trial can bo granted a^ aiit puts all the arguments of the counsel on the other side upon thiq part q£ the subject completely hois da comnnt. This dccistion of the enlightened and venerable judge, I take it, will not be set aside by your honours in the absence of any con- dieting authority, for I advert again to the cir- cumstance of my learned friends on the other side not producing a single case where a new trial had been granted, (rior has there I>een any, except that in Levinz, which has since been overruled,) and rhat all the length they went wa.s to adduce an instance wherein it is said that the matter does not appear to Im; fully determinf;^ J in England whether it may not be granted. Uudci these circumstan- ces, we can have no apprchensior ^iiat there is any thing so peculiar in this cape, as to indu'' '^ your honours to sanction, with the we '^ht of your deci- nion, a contrary opinion to that of my Lord KenyoiK With respect to tlie popular part of the urgument, so fully enterect into by my (riend Stuart, as to the hardship to prisoners of rcfusii^g a new trisSil in cri- minal cases, arising froin the absence of a remedy against an improper verdict by a jury, as a writ of attaint will not lie against them, from the impos- sibility of pleading that ' a verdict was against,' or without evidence, in >«r^3st of judgment, from titt; peculiar anomaly that counsel are not heard on behalf of the prisoner in cases of felony, and that, as new trials are {rranted in civil cases, a fortiori^ they ought to Lie m^ criminal ; the plain answer is, if tney were granted to prisoners, they must also be to the Crown, for it is just as possible that a jury may acquit against the weight of evidence, or upon improper testimony, as well as convict a pri- soner. Indeed it appears to me that if my learnetl ..*. ' » m -'s ^1 602 fnend^s proposition was established as the ordina? rjr practice of criminal Courts, the hardship woulcl be greater to prisoners than at present, as tne prin- ciples of humanity, which always influence the ad- ministration of our criminal law and the conduct of juries, inclines rather, 1 think, to the acquittal, than to the conviction of a prisoner, under tne cir- cumstance alluded to by my learned friend. Pre- cisely the same answer will suflice as to counsel for a prisoner addressing the Jury, the prisoner would gain nothing by that being the practice, be- cause the Crown ofliccrs must then be permitted to do so, wliiist as to no remedy existing, if a new trial can not be granted in a case of an improper verdict, inasmuch as it does not furnish a legal ar- gument upon c motion in arrest of judgement, mj learned friend, the Attorney Genet al, has correct- ed that error by pointing to a sure remedy in the mercy of the Crown. Subject as every human institution is to crroi* from the frailty of our ja- turcs, it would be presumption to imagine that improper verdicts may not sometimes be given, but it is the happiness of a deieudant, who may be affected by such a verdict, that he has a sure pro- tection against the consequences of such error in the mercy of the Crown, which never fails, upon a proper representation of the case, to extend its prerogative, and remedy the misconduct, or mis- apprehension, of a jury, by pardoning the pri- soner. This is therefore the quarter to which my learned friends must direct their application, and if it is well founded, there can be no doubt of its suc- cess. The observations which I have addressed to the Court on the principle df competency in en- tertaining the motion, I would also remark, may serve, in a great measure, as answers to the ex- pediency ot granting the motion. There is, ac- cording to our idea, no necessity for doing so, t« mi 603 ibe ordina? Iship would as tne prin- snce the ad- i conduct of B acquittal, nder the cir- iend. Pre- to counsel the prisoner practice, be- le permitted tiqg, if a new an improper ih a legal ar- dgemcnt, my , has correct- emedy in the Bvery human y of our .la- nnagine that cs be given, , who may be as a sure pro- such error in jr fails, upon to extend its iduct, or mis- ling the pri- p to which mjr lication, and if >ubtof itssuc- Lve addressed Ipetency in en- remark, may rs to the ex- There is, ac- doing so, t« f nabic the prisoner to escape the effects of ihe vciv. (lictof the jury, even if my learned friend^s argu- ments as to the propriety which dictated it, were admitted to be correct, and that in justice and law he ought to escape them, for he has a more sure remedy open to him in the Royal mercy, and the power of the Crown is equal 1o its mercy and its justice. I>pon this part of* my learned friend^s ar- guments, I therefore forbear troubling the Court farther. We coiisider tirst, with the greatest de- ference to your honours, that the authority of my Lord Kenypn is decisive in support of our opinion upon the incompetency to entertain the motion for a new trial, and we see nothing in the case made out by my learned friends that would sustain such amotion, were ii competent to the Court to re- ceive it. Whatever may be your hunour^s opinion on that point, I feel confident you will do me the honour tq coincide with me, that the previous argu- ment of my learned friends, even admitting eyery statement ^o be undeniably correct, can not bo made to bear on their motion in arrest of judgment. My confidence of being supported by the Court in this, that onlj for matters on the record, can judgment be arrested, arises from the numerous authorities on the point. The first to which I re- fer is the most elementary book, indeed may bo ra)l«d the {grammar of law. I mean Mr. Justice Blackstone. In vol. 4, p^ge 375, (Chnstiar^s edi- tion) he describes, in considering of "judgment t* and its consequences," what may be offered in arrest or stay of judgment by a defendant, upon a capital or inferior conviction. *' He may," says the learned judge,"" at the period of being asked " if he has any thing to offer why judgment should *' not be awarded against him, as well as at his ar« '* raignment, offer any exceptions to the indict- " ment, as, for want of suflicicnt certainty in setting '• U BH Ihi mi t it r ^ forth either the person, the time, the place, ei *^ the ofieiice/' ' In another place, speaking upon this subject, he oB£>erves that, on no other ground than matter of Ijivir can it lie. Comyn's Digest, vol. 5, word, plead^rsy lettejr S* 47, considering of the avoiding of a verdict by arres} of judgment, says, ** after a verdict a man may allege any thing in '* the record in arrest of fudgement, wh^ch may be *^ assigned for error after judgement,'.' and the same learned judge in his Digest, as authority, re- fers to Ist Siderfin, 85, that a ^* prisoner shall not *^ tender any matter for stay of judgement, but ^^ what arises on the indictment/' Again, the same doctrine is expressly laid down, in the case of Bell and Steward, M. 23. Geo. l(. in Wilson's Reports, vol. 1. page 2.'i5. *^ After a verdict the *' Court will suppose every thing to be right, iin- *^ jess the contrary appears on the record,^' apd this very opinion was given upon a motion ip ar- rest of judgement, wherein, its not appearing upon the declaration, that the cause or action atpse within the jurisdiction of the Court, and the pos- sibility that the debt might be such a one as that Couf t had no jurisdiction of, were made the prin- cipal grounds upon which the motion was urged, and judgement was accordingly given for the plaintitf/ * In the case of Sutton versus Bishop, in 4th Burrows, page 2287, the sam« principle is laid down. In this case, which was one wherein a defendant had been improperly convicted, the Court held that, *^ he was entitled to some relief *^ but in what mode he should receive it was not *' easy to determine." The counsel for Bishop had contended that he ought, in some way, to have liberty to avail himself of the benefit of a particular provision of a statute, and amongst others suggested an arrest of judgement, Upon this the Court said, *^ there was no pretence Ic 605 *< arrest the judgements, because nothing api>ear^ *^ on the face of the record to justify it, and the. •^ Court ought not to arrest jude^cmentd upon mat- <^ ters not appearing upon the face of the record) *^ but are to judge upon the record itself, that ^ their successors maj know the grounds of their *^ judgement/* I have before noticed that the case in Siderfin goes so far as to say that the prisoner shall not tender any -matter for stay of judgement, but what arises on the indictment. These autho- rities are some of them civil, and some criminal, but they all arrive at the same conclusion, that nd points can be moved in arrest of judgement but solid matters of law, which appear upon the re« cord. The same opinions are set forth in various cases in which the conduct of the jury, &c. is considered as affecting the judgement, in 2d Hale 307; Coke upon Littleton 227, B. 1st Lord tlaymohd, 232. iSalkeld, vol. I. p. 77, and 317 bf same vol. and the conclusion which my friend, AJr. Chitty^ makes upon the whole is, I submit^ perfectly correct in law. ^^ The causes on which ^^ this motion may be grounded, although numc- <' rdus, are confined to objections which arise oti ^^ the face of the record itself, and which make ^< the proceedings apparently erroneous, and there- ^^ fore, no defect in evidence, or impropf;r conduct ^' in the trial, can be urged in this stage of the ** proceedings." Chitty, Ist vol. p. 661. Upon this part of my learned friend's arji^ument, I shall close my observations by remarking that, what- ever weight in another place the circumstances Ihey adduce; may have in obtaining mercy for the tmfortunate prisoner, they can not here have the feffect of obtaining a new trial, nor can be of any Consideration on a motion in arrest of judgement. The Court, having admitted my learned Aiends tti make these reraarfcd^ incidentally, I felt it mj 600 - » m ^ft f/' ; ftaty to submit some observation iti reply to them; having done so; j proceed to consider their argu- ments relative td the jurisdiction of the Courts both as it was qniestioned, under their objections to an J Court ha\'k)^ the power to try for a felony comoiitted in the Irtdian territory, and also to a Court of Oyer and Terminer being invested with that power; the position of my learned friends I take to be, that no Court, and if any, that it is not a Court of Oyer atid Terminer and general gaol delivery, that is invested with power, oy the act of 1803, to try for a felony committed in the Indian territories. My learned friends refer to the preamble of the act and, the words ^^ crimes and offences^' being used, and also Courts in the plu- ral number. They insist that it is only misde- meanors which the terib *^ crimes and offen- ces,'* made use of In the act, give the power of trying, and also that that power, udder the de- signation of Courts is only given to the ordinary Courts of the several districts of the province. — But, if my learned friends had gone on to the fourth clause, they would have found that clause conclusive against their construction, as to the word Courts^ (the species of oiFcnces intended by the act will be considered presently,) there they Would have found that power is expressly given to the Court before whom such prosecution shall be had to acquit, under certain circumstances ; the fourth clause is, " Provided always and be it fur- ** ther enacted, that if any crime or offence charg- *^ ed and prosecuted under this act shall be prov- *' ed to have been committed by any person or *^ iiersons, not being a subject or subjects of His *^ Majesty, and also within the limits of any colony, " settlement, or territory, belonging to any Euro- •* pean state, the Court before which such prose- *^ cutiou shall be had, shall forthwith acquit such 607 them J argu- Courl^ ections felony io to a d with lends I lat it is general by the d in the er to the mes and the plu- ^ misde- d offen- pbwcr of the de- ordinary vince. — In to the at clause IS to the mdcd by [leie they Jy given llion snail jces; the be it fur- cc charg- be prov- )erson or ;t8 o'f His ly colony 1 my Euro- ich prose- quit such '< perdoh or persons, not being such subject oH ^ subjects as aforesaid, of such charge.'* Her«' then wc see that povrer is not exclusively confin- ed to the Courts^ according to noy learnd friends contruction of the term, but, the |K>wcr of acquit- tal is expressly given to the Court before whoDi such prosecution may be had, which clearly shews that a Court may try crimes and offences commit- ted in the Indian territories. The reason of the word being used in the plural in relation to Low- er, and in the singular number, in relation to Up- per, Canada, was very suitably explained by the Attorney General to arise from the difference in the judicial establishment in the two provinces. Then as to the term usually ; ^^ in which such " crimes and ofl'ences are usually tried," I contend that, bj this expression, all legal Courts must be meant, and, according to this construction, that we can not measure the degree of use, or frequen- cy of usage, of such Court, but that every Court legally having the power to try the particular crime or oflence, if committed in either of \he provinces^ Ifi^as meant by the lej?islature, as a Court where crimes and oiflcnces oi the same nature arc usually tried, and consequently^had jurisdiction given to it to try offences committed in the Indian territory. A Court of Oyer and Terminer is such a Court in ihe province of Lower Canada, and therefore this is a Court where crimes and offences of the like na-^ ture as that of which the prisoner has been con- victed are usually tried, and therefore competent to try such a crime or offence^ though committed in the Indian territory. In reference to my friend Stuart's observation that this act must be most ftlrictly and rigorously construed, I have to remark that 1 differ compiciely with him. On wliat it is that he founds his opinion^ 1 do not know. He Assigned as one reason, tliat it trenched upon, what 6oa •.mm %>'''!«, ' ■■■J' 4^.-! '; ■<', '■■: ■ >r i ■:,,.i ■ u X A mm If ■ he termed,, a fundaiueDtal principle ol the coirninoii law of England, whicb invariablj associates locali- ty and jurisdiction. The enquiry which su^ests itself to me as proper to make previous to deciding upon its construction is this ; is the statute of 43ct. Geo. Ill, a retnetdial or a pebaj statute } If it was a penal statute, I should agree with my learn- ed friend that it ou^ht to receive a most strict and rigorous construction, but it is a remedial act in its fullest extent, arid as such, \ contend, in op position to my learned friend, that it ought to re- ceive the most extensive and liberal interpretation, because such, acts are invariably construed in tht most liberal manner, and such is the construction that I think I feel warranted in believing this act will receive from your honours, and if it receive thie extensive construction 1 contend for, it will include ^11 Courts, and must take in a Court of Oyer and Terminer. Again, in deciding upon the construction which any act of parliament ought te receive, I should think it highly expedient to en- deavour to ascertain what were the objects tlie le> gislature had in view in pa^ssiiig it. What was the mtention of the legislature in passing this act is knanifest from its preamble. Which states that, *^ whereas great crimes and offences have been ^ committed in the Indian territory, &c. which are *^ not cognizable by any juried icti on whatever, and *^ by reason thereof great ci'imes and offences have ^' gone, and tiiay hereafter go, unpunished and ** greatly increase." This, was the evil which this lact was intended to remedy, and as great crimes and offences had gone uiipunished, and apprehen- sions were entertained that they might still do so, bnd greatly increase, there was a necessity for speedy punishnient of crime in the Indian territory, that retributive justice might overtake the daring ofieitders whd had long fearlessly committed all 609 5oinVnon s locali- deciding Q of 43d. ? If U ny learn- 3st strict jedial act id, in op jht to r( the parliament be best accomplished, but by giving power to all the Courts to take cogniz- ance of similar offences committed in the Indian territory to those which are usually tried therein when committed within their respective provinces ? This was done, and in extending the jurisdiction to the Courts where offences of a Tike nature would have been tried^ if committed in the province, it in- eluded a Court of Oyer and Tei^miner. That it should have done otherwise cannot^ for a moment, be imagined, I think, if we look at the constitutioti of the other criminal Courts here. The Court of King's Bench holds two short terms annually, or iocase of the Chief Justice being sick, or. »% as wti m : i 610 the caie some (line ago, absent from tbe province, or, from any circumstance the Court wai not full, or, as lately at Montreal, the Court was incomplete, or would not sit, there could be ho way of admi- nistering speedy justice to crime, or to the indivi- flual accused, (perhaps wrongfully,^ but by a Court of Oyer and Terminer, or rather tnan that, do my learned friends contend they should not be tried at all. Supposing some of the individuals accus- ed arrived at Montreal, according to the course prescribed by the statute, immediately after the session had closed, are they to wait five months for their trial, without there ^ bein^ any possibility of having justice earlier renderedjbetween the Crown and the prisoners ? This surely could not be the in- tention of the legislature by the general expression that offences committed in the Indian territories are to be tried in the Courts where similar offences, if comknUted within the respective provinces, are usu- ally, and would seyerally be tried. In Lower Cana- da as well as Upper, a Court of Oyer and Termin- er is one of the usual Courts for the trial of murder and felonies generally* and is therefore a competent Court to try under this act the same offences, when sent down for trial to these provinces from the In- dian territories^ That this is a fair construction of the act in question, 1 feel satisfied, if not to tbe very letter, certf inly according^ to the intent, which is the rule of law. There is another point my learned friends, have dwelt on contiderably, and upon whicjh; they; appear to me to place a reliance but little warranted by any argument which they adduce to suppprtithe correctness of their position. It is that Cour/f bemg used io the plural number, in relation to Lovirer Canada, it must have refer- ence to the three Courts attached to the districti tf the.province. I contend^ ir: opposition to that > H province, I Dot full, complete, of admi- [le indivi- fy a Court at, do my t be tried lals accus- tbe course f after the months for >s8ibility of the Crown it be the in- l expression rritories arc offences, if es, are usu- 40wcr Cana- nd Termin- al of murder a competent ences, when from the In- construction ifnottothe itcnt, which ^r point my |erably, an 1> '■:;^ f^ '* able work, whicti I repeat is tlie grammar of law* he would find that his own authority is directly in opposition to the argument which lie has submit- tea. *^ The generaldefinition of crime,*^ he says, *^ comprehends both crimes and misdemeanors *^ which, properly speaking, are mere synonymous *^ terms, though in common usage,** (in what common usage? why, in common usage among lawyers, among that class of persons for whom his work was more particularly intended,) *^ the word '^ crimes is made to denote such oflences as are of *^ a deeper and more atrocious dye,** and a little lower down, in the very same paee, he settles the matter most conclusively as to what kind of oiTen- ces ought to be ranked among crimes ; ^^ but,** he says, ^^ treason, murder and robbery are properly *^ ranked among crimes.** This is a part ol Mr. Justice Blackstonc^s opinion which did not appear to attract my learned friend*8 attention ; nor does the recent case of Shaw, produced by my learned friends, at all vary or oppose this doctrine. Mr. Selwyn, in opening the case on behalf of the pri- soner, abandons all idea of questioning the gene- ral power of the Court, under the term ^^ crimes *^ and offences,** to try for felony, and the decision of my Lord Ellenborough was not at all influenced by a consideration of the right of trying felonies tinder that general definition, but in arriving at his own decision, the point upon which his judge- ment was formed was, that tnis particular statute, for the prevention of frauds, did authorize it, and that, therefore, the proceedings must be quashed. In forming his judgement he adopted, and, as I humbly conceive, he sanctioned, the correctness of the position, which 1 have had th« honour al- ready to submit as a sacred legal rule, '^ that every ^^ statute ought to be construed according to tht «i:5 of law, BCtly in submit- he says* meanors mymous in wlisit I amon^ ^hom his the word as are of d a little ettles the I of offen- i but," he > properly ,rt ot Mr. lot appear • nor does ny learned rine. Mr. of the pri- tho gene- I ** crimes ie decision influenced ig felonies irriving at his judge- liar statute, ize it, and . quashed. and, as I jorrectiieis honour al- I' that every ling to tilt " intent of parliament," as well as another rerv similar, ** that every statute ought to bo cxpounJ- ** ed, not according to the letter, but ncconling to ** the intent." Adopt this rule, and what was the intent of the act of 1B03? not to prevent frauds, or to punish mere wrongs of property, not to bring to justice individuals who had been guilty of sliglit misdemeanors ; no, the preamble of the act recites, in a manner too plain to be misunderstood, or to allow it for a moment to be supposed that it was made to repress and punish slight oifenccs, that, whereas great crimes and offences have been committed in the Indian territories, and by reason of their not bcn^*; cognizable by any jurisdiction whatever, these great crimes and ofleuces have gone, and may hereafter go, unpunished. To remedy this great evil, the act ot the 43d Geo. III. was passed. What these great crimes and ofiences were, unfortunately, was matter of public notoriety, in tlie dreadful state of this devoted and unhappy country. It was not misdemeanors that constituted the great crimes and oil*ences, but robberies, arsons, murders, and every other atro- oiTence that adds to the dark catalosrue cious of felonies. And to suppose that by this act the smaller offences were intended only to be prose- cuted, tried and punished, would be to suppose that it was proposed to hold out encouragement to the perpetration of the larger ones. But it is contrary to common sense thus to interpret the act of the legislature. They gave the power to try for crimes and ofTenccs, for great crimes and onences, and the conclusion I arrive at on this part of the subject is, that felonies are crimes ; and adopting the rules for construing acts that I have just quoted from Comyns* Digest, vol. 5. word Parliament. Letter R. 10, one remark 614 If m * I'i". .^ ■ 1 ' ; t 1 "i Wr i « r ?■ . I ..')■ more occurs on the point of the proper mode of Gipounding statutes. Comjns, s&me word and number, sajs, *^ if the en(» '^^:lg W4>rds can take *♦ in the mischief, they sha'' V A^t^inded for that ** purpose though the preao^ule doen not warrant *« it/' Bassett versus Bassett, M. 1744, 3 Atkins, 203. Here tho preamble does warrant it, it is crimes and ofteticcs that have been committed ; the title warrants it, it is an act to extend the ju- risdiction to the trial of crimes and offences ; the enacting sections warrant it, the second speaks of crimes and offences, and of persons g^iltj of attff crime or offence, the third speaks of everj suck offender, evidently referring to the former descrip- tion of persons guilty of any crime or oflence. — TlxTo can be no doubt that this act, being a higldy remedial one, must be construed to include all crimes and offences. I say that, a necessity exist- ing for the punishment of murder committed in the Indian territories, the parliament, by this act, gave under the term ** crimes and offences,'' power to the Courts of the two provinces, (and amongst them to this Court) to prosecute, try, and subject to punishment, all persons accused and convicted of murder, or any other felony. Relative to the omission of proof'^as to the baptismal name of Ke- veny, of his actual death, ana of the admission of the confession in a manner which ray learned friends consider irregular, I consider that I should be most unwarrahtauly trifling with the time of the Court were I, after the solemn decision the whole of those points have received, to offer any thing in the shape of reply to my learned friends. The Court solemnly decided the admissibility of the confession, and it would be indecorous in me, had your honours decision been contrary to that which admitted the confession to go to the jury ; node of ord and an take for that warrant I Atkins, ant it, it minitted ; id the ju- [ices; the speaks oi' Ity of omf jverj svch )T dcBcrip- offence.— ,g a higlilT ncluue all siity eiist- lUed in the l8 act, gave ' power to d amongst ^nd subject I convicted tive to the ame of Ke- dmission of By learned aX 1 should the time of Jecision the [to offer any ned friends, lissibility of )TO\}s in me, •ary to that to the jury ; 61d as It 1S9 It is completely unnecessary. As to the death and baptismal name of Kereny, I should be most terribly infriiigpng upon the province of the jury, were I to presume to stir their decision ; each of these points have been decided by the Court, or by the jury, according as they appertained to the one or the other. I decline, therefore, offer- ing any argument upon either of the points, and shall proceed to a consideration of whether it was necessary to have stated on the indictment that the prisoner was a subject This is clearly a question of law, and therefore as clearly a proper point to be insisted upon in arrest of judgement, but my learned friends appear to overlook that the onus ffobandi^ by the (ourth and fifth clauses of the act, IS completely thrown upon the prisoner. It is he who must prove that he is not a subject of his Ma- jesty. After we have proved our allegation that the ofifenca was committed in the Indian territory we have gone far enough, our case is proved, and it is the prisoner who must produce negative tes- timony, or evidence that he was not a subject of his Majesty, and that the offence was committed within some European colony or settlement All that was necessary in the indictment was to have averred that the offence was committed within the jurisdiction of this Court, in the Indian territory, sed tnajore ceriiiudine^ we have described it as be- ing perpetrated at the said place in the river Win- nipic ; tne jury have said that the offence was per- petrated there, and it is not competent to the pri- soner, after his conviction, to turn round upon us and say, you have not averred that I am a subject Admitting what my learned friends advance to be the fact, viz. that De Reinhard is not a subject, still that alone would not entitle him to his acquit- tal. It is very true that the act does say to "•''I mm IJ!. 619 M ' . '• ^m ■#%■ r^j ^8ure to a prisoner an acquittal forthwith, that i( must be proved that he is pot a subject of his Ma- jestj^ but it does qot saj that, if he stops at liav« ing proved that he is not one of his Majesty's sub- jects, he shall be forthwith acquitted, but that, if he is an alien, and the offence was committed within some European colpny, or settlement, then the Court, before whom his trial is held, shall forthwith acquit him. But although necessary for him to prove himself an alien, i^nd also that the ofieiicf! was committed within an European settle- ment, before he could obtain an acquittal forth- with, yet had we averred him to be a subject, and failed in our proof, we shot^ld have destroyed pur own charge, and though tlie ofieqce might not have been committed within any European settle- ment, yet he must have been acquitted. Upon penal statutes, your honours know, that it is not only unnecessary to aver that which may be ne- gatived and therefore destroy the charge, but that It is not necessary to state provisoes and excep- tions. The utmost latitude my learned friends could takp, as affording a chance of acquittal in this case, was that, provided De Reinhard wa« not a subject, and his offence was committed in an European settlement or colony, he must be ac- quitted. Matters of defence, it is well known, the prosecutor need not anticipate, these were purely matters of defence, and as the efiect of not proving an averment that the prisoner was a subject, would have been to negative our phargc, we have not made it. This doctrine h supported by a variety of au horities which are yery summarily stated by my learned friend, Mr. Chitty, vol 1st, p. 284, that the necessity for the prpving the excuse lies upon the defendant, and thp contrary need not be ^verred by the prosecutor. Our not stating the # 61V lb, that H »l* his Ma- ^8 a,t hav- igty's sub- ut tbat, if Donomilted Qaent,tbcn held, sbaU ccssary fov (o tbat the jean settle- littal fortb- a subject, e destroyed .e migbt not »pean settle- Lted." Upon liat it is rioi may be ne- rge, but that J and excep- irned friends acquittal in [cinbard wa* iuiitted in an must be ac- \ known, the were purely f not proving ibject, would we have not by a variety ily stated by ,, l8t, p. 284, |e excuse lies need not be ,t stating tlie l>rispner to be a subject in no way deprived ^lim of the opportunity of shewing that he was an alien, because it is one of the enacting clauses of the act ;ivhich <;ives him the right of shewing all that i^i necessary for his acquittal. My learned friend say$ farther, in speaking upon this subject, ^^ if •* the exceptions themselves are stated in the && enacting clauses, it will be necessary to negative *^ them, in order that the description of the crime «« may in all respects correspond with the statute/^ Then, if this is the case on penal, surely on re- medial, statutes, which this is in the highest de- gree, it can not be necessary for us to aver that which might destroy our indictment. The pro- visoes of th^ fourth and fifth clauses are purely matters of defence, and the statute opens the door for their admission, but at the same time it must be remembered that it is op the prisoner that the weight of proof is placed. I must confess that I do not clearly understand my learned friend^s ar- gument relative to its being pur duty to aver that the oflTence was committed in the king^s dominions. Had the indictment stated jthat it was committed therein, it would have been bad, for the statute expressly sets forth that this act is tQ give cogniz- ance over offences committed in the Indian coun- try, not within the limits of either of the provincebi of Upper or Lower Canada, pr within the limits of any civil government uf the United States of Ame- rica, and which are therefore not cognizable by any jurisdiction whatsoever. Had we, I therefore repeat, charged the olTcnce as being committed in the King^s dominion^ the indictment would have been bad. Mr. Justice Bowen, — In this case of Shaw's I perceive the indictment charged the oflence to have been committed in British North America, tp 'll'^'ii Sit »»*. l ^- * ri -J T '*'' ^' wit, at the parish of St. Mary la bonne, in the county of Middlesex. Sohcttor GeneroL — Wc are aware of the scilicet. it is a vnry old ibroi to chargu offences committed obroad, as being at a certain place, viz : at Mid- dlesex. This, though not inserted, has not been overlooked, but we thought it unnecessary. We have charged the oflfenco to have been committed contra pacem donuni regis^ which y/e consider to b« sufficient, as we arc justiiied by precedents in in- dictments for ofTences committed at sea and in fo- reign parts, in which the offence js laid contra pu' ccni domini regis, which have always been held ai good indictments. I believe I have adverted to all roy learned friend's arguments, and whilst I apo- logize for the length of time, I fear I havi^ so uii* profitably occupied, I beg leave to make my ac- knowledgements for the indulgent hearing the Court has favoured me with. Air, Stuari. — In reply to the arguments which my learned friends, the Attorney and Solicitor General, hav^ presented to the Court in opposition to our motions for a new trial and .in arrest of judgement, I shall trespass but very shortly upon the attention of your honours. To the observa- tions which we nave already had the honour of submitting as to the right possessed by the Court to grant a nei,v trial, we have nothing to add, as we do not consider that our learned friends have at all met them by argument, though they havi denied their correctness. The remarks as to the inconveniences which would result to prisoners from the Crown moving fo^new trials, should tho^ be granted to prisoners, and a variety of sugg;e.s- tions of a similar description, furnish, in our opini- on, no answer to the authority which we produced and supported by analogy. The arguments whkh iLOL'ii •ij B,, in the [le scilicet. jommilted : at Mid- not been jary. We committed aider to be icnts in in- i and in fo- J eontra p5- „ in our opnii- A we produced umonts whjch • 619 we adduced were broad and extensive, applicable to ef ery case calling for the interposition ot the power ofthe Court, our argument upon this part of the question was that the principles of (Criminal, were analogous to those of civil, law, and that, as a new trial can be granted in a civil case, so it ought and might be in criminal cases. To these propositions my learned friends have given no answer, except Producing a dictum of a toarned judge, for whom entertain as high a respect as they possibly can do, saying that a motion for a new trial in crimin- al cases could not be granted, to which we havt^ rejoined by exhibiting a later authority of a con- trary description in which it is said that the ques- tion is not yet settled, besides the authority from Viner in which it is possitively laid down that it maybe, and an instance exhibited when it was granted. I quit, however, that part of the ques- tion, and on the motion in arrest of judgment I a- gree with my learned friends, the Crown officers, that nothing certainly can b« admitted on a motion in arrest bf judgment, except matters which ap* pear upon the record ; but I would submit to the Court that this very circumstance of precluding any thing but absolute matters of law from being adduced, furnishes a strong argument in favour of the principle of granting a new trial, or of enter- taining the motion for one m all criminal cases as fully as a motion in arrest of judgment. J purpose to enter more'mihutely than 1 did before upon the branch of the question which is connected with a consideration of which were the Courts to whom this extended jurisdiction was given by the act of 13d Geo. III. And I set out by saying that I per- fectly agree with my learned friend, Vanfelson, that it was given only to the Courts of the three districts of the province established by the judica- ! . -'A I i'lip] 620 lil w mi V 4 ■■'it,' ; ; / i * Mi 1 ' il "..V/ '■M i'!- ^ '< ' ' w t'' mU «*:^ ■l ■ lure act and can not extend to this Court.— My reasons for agreeinff with him are numerous, and 6rst, 1 submit that this power must of necessity be given to a Court then in existence. That the act could not contemplate conferring jurisdiction on a XJourt not in bcin*!;, I think a self-evident proposi- tion. 1 ask then, (not to detain the Court by a pro- tracted discussion upon this very manifest pomt,) was this Court in existence at the time, or is it to be said tiiat tiie lop^islature looked forward in 1B03, for ten, tweh'c, or fifteen, years, and seeing that a Court of Oyer and Terminer would be sitting, conterred upon it, by anticipation, jurisdiction over ciimes and odcnccs connnitted in the Indian terri- tory. 1 take up the act of ]803, and | observe that it gives jurisdiction to the Courts of Lower .Canada, and to the Court of Upper Canada, under special circumstances. To what Courts, I ask? It muat certainly be to the Courts having power to try then, at the time the jurisdiction was confer* red, lo the Courts that were in case^ and not to Courts that were only in posse. In referring to th« preamble I perceive one of the reasons for passing this act was tijat olfenccs required to be punished. over which the ealablisliod Courts of this fmivincf had no jurisdiction, and the statute proceeds immr diately to confer authority to the Courts of this province for the prosecution and trial of olFencet committed in the Indian territory, and directs that they shall be prosecuted and tried in the same man- ner in which olfenccs of the same nature are usual- ly tried. I again remark that, from the nature ol the jurisdiction to be exercised, the Court of King's Bench best comports with the importance of it, tlie Court of King's IJench is identical, and perpetual. whilst a Court of Oyer and Terminer is changcaHIe, and temporary. Whatever may be tjjo variation iirt.— My roU8, and c€8sity be lal the act ction on a it proposi- t by a p» *>• [est point,) , or 13 »^ ^^ ird*inl»03, Being tbat a be sitting, idictioo over Indian tein- ^a ( observe t8 of Lower anada, u"J«' Kins, I askr /.ng power ^'^ 621 •r its officers, however death may reniovo thosit who occupy its bar, and dii^nify its bench, the Court ol* Kind's Bench remains tlie same. Its power is not arrested by the mutations of time, op the ehat)cres of circumstances. Its processes are always in force. Its authority is nlways in exercise, whether it is term or vacation, still the identity and perpe- tuity of the Court is preserved. Its judges may be removed by casualties, or may vanish by death, but the Court is perpetual, it exists for ever. It participates in, or rather is, the seat of the mo* narcirs power, and, like the King, it never dies. The Court that we have the honour to address in another room is a Court for ever. It hits been, and will continue so a thousand years hence : that Court will exist for ever, and although dilFerent judges preside over it, it will still be the same Court: the Court of Kin^^s Bench. It could not bo meant Courts that might be erected, for where was the certainty they would be erected, and, when erected, what was the certainty of their dura- tion. That forms a considerable objection in our mind to any but the Courts of the three districtst being considered the usual Courts of the province. However much we may respect this Court, wc ran not but recollect that this Court is ephemeral, it was born a few days ago, and in few days hence it will die, and be no more heard of Another material difference between the Courts is found in the mode of appointing tl.'osc who are to hold the pleas. In the regular Courts they do not depend on the choice of any governor, they arc the King's judges, independent of every consideration, de- jwnding on no contingency, removed by no incident except^death. Although your honours nrajudges^ yet it does not vary my argument at all; the ap- pointment of C^iurts of Oyer ai)d Terminer is ft Mh'i: -,i ^1 n ' i V M V »■ ■•.'>Li;f«'K>l » 'iil-'iSk?! 622 1 f Pi " M liTerj high prerogative, a prerogatito ccrtaiulj; where the King, who is the occasion, names his own judges. ,1 do not, for a moment, insinuate that is not his prerogative, or that it is, or has been, Improperlj used, but I 8ub(|it it is a very high prerogative of the Cr^wn, and; with the page of bistory open to our view, we might be allowed to ask, mignt it not be made a powerful engine of oppression ? Another dtfierence that I notice ig, that the judges are judges of the districts at large, and not confined to any particular one. For these reasons, we think, there is such a ditference be- tween the judges of the Court of King^s Bench, and the justices, or commissioners of a Court of Ojer and Terminer, that *.vc arc induced to believe that the legislature did not intend, bv the word judges, anr otner than the regular judges of the districts of the province. I come now, to the words, or part •f the ac t, wherein tlie Courts of the province are specified, and contend that the difierence is equally striking. My argument is that your hon- ours-are sitting under a commission as justices of a Court of Oyer and Terminer, and that this can not be the Courts of the province mentioned in the act as the Courts wherein offences of a like nature are usually tried. The third clause expressly pro- vides that every ofTehder may and shall be prose- cuted and tried in the Courts of the province of Lower Canada, unless he shall, for certain rea- sons, be transmitted to Upper Cana(]a for his (rial. 1 allege that this Court can not be the Courts dc- ;signated \u the clause of the act 1 have just re- ferred to. If Mook to its commiosfion, I sliall sec it is a Court for the district of Quebec, not for the three several districts, and therefore can not be the Courts of Lower Canada. When we have the Courts of Montreal, of Three Rivers, and ofQu**- 623 tec, tliere we huvm *u r, I Lo,vcr Canad,, a„3 Jf. ^Z'f ^'^ 1'- ?'•''»!»»• o^ » ;h.. an, to ,rj, off2i^S^^"^ ^T ^-''••'« terntorj. I (.ke it t|«, S " .""^ '"«"«» Co-rO, a prisoner l.a. not "u*!, "? ''"« «»'e.e «lio law intended hi™ ,o h«L V"*" ^'"^^ *»'icb probable that .be legij^fe^jp^""; " migb.be or upon .ome Courts^rhi. „r ~"*'^''«' «•» one »aj net upon anotl,er-!I_ •"""'»§«• wbich it jour ;ietS.f S:?aL n. ''"-^'''•"* 'o , ihat would be a ft *"". °"^ "Wcc.ion dulrict, when it i, th« r T ' "l"^ " ^""'^ "f a offence. coD,„.i Lj i„" .ST ,«'"> «'* «o try for H» , , , . . . . .^ ,- - IlJ '.>■■< mm: I' 7** 'J •1. , 1 (I t , I. / *f This cTesbriptioh presentd a mixed dueslion of h\r and of fact. Tne judge directs the jury on the law, and the jury find the fact upon that direction; it is put upon record, and it is then, wo are told, too late to plead that it was not in the King^s do- rninionSf and We owed him no allegiance, that wc were not one of his subjects. At present, non constat^ on the Crown^s own shewing, that this of- fence might not be committed within the territory of some European nation. I said before, and sajr still, my learned friends were bound, in their in- dictment, to give due certainty, and I allege that they did not. I was misunderstood by my learned friends before, it was not my intention to inbist upon that being, introduced mto the indictment which would maKe it completely inoperative, but I stated that^ merely to charge the onencc as con- frd pacem dotnini regis was not sufficient, bccauge the offence^ if committed, might not have been against his peace, because he might not have any peace to break, and that it was incumbent upon the Crown, to prove tiiat it was against his peace, before it could be entitled to ask thie conviction of the prisoner. As to the laws of other nations, I know nothing of them till they are brought into evidence, nor any that justify one nation legislating for another^ My learned friend, the Solicitor Ge- neral, produced a most extraordinary reason for extending the power of trying ofienccs cominittcd in the Indian territory to Courts of Oyer and Ter- he spoke of the inconvenience that might miner arise from the incompetency of the Court ofPCing's Hench, from its not being full. I would asl if it be possible that the learned Crown officer can, with complacency, contemplate the Court of King's Bench of Lower Canada, as not assembling from incompetency. Are the private or personal feel- ,11 uf ia\r ry on the [\ircction; are lold» liing'8 do- B, that wc ■esont, non hat this of- le terntory re, awd *?! in their in- allege that r my learned ion to insist 5 indictment jerative, but fence as con- lent, because ,t have been not have any jumbent upon inst his peace, . conviction oi ler nations, I brought into •lonVegislatmg * Solicitor be- [ry reason for ces committed Syerandlcr- ^ce that migW !ourtofKing.« vould asl »i »t II officer can, :ourtofKing'» isembUng/rom personal te*^' 625 itlgs of a Judge, or two judges^ to interfere If ith the jurisprudence of the country, &nd the regular and due administration of justice between man and man. Ii the stream of J^w and justice to bo stop- ped through the disinclination of any individual whatever, t hope dot. 1 shall now adVert very briefly to the distinction which we draw between crimes and felonies. I take it t6 be a fact that will not be denied^ or I will produce authorities upon the point, that persons may be tried in Eng- land under the statute of Henry VIII. for felony. That being admitted, I refer to the act of 1803, and find it is to giv^ jurisdiction over crimes and offences, which are not cognizable by any juris- diction whatever. It might narrow my observa- tions very much by stating that because treason and murder committed abroad are cognizable by the statutes of Henry VIII. they can not be under this act *, fbr this act only gives jurisdiction over crimes ftnd offences committed in the Indian terri* tory which are not cognizable by any other juris* diction. I will read the introduction of the pre* amble. ** Whereas crimes and offences have been ** committed in the Indian territories and other ^ parts of America not within the limits of the *' provinces of Upper or Lower Canada, or either ^ of them, or of the jurisdiction of any of the Court! ^ established in these provinces or within the li- *' mits of any civil government of the United States " of America, and are therefore not cognizable by ** any jurisdiction whatever, and by reason thereof " great crimes and offences have gone, and may *' hereafter go, unpunished, and greatly increase, "for remedy whereof/' For remedy of what? why, evidently for the crimes and offences that were not cognizable by any jurisdiction whatever. If then I shew that the offence for which that man mi 626 if I !'.'>' hai been conricted is cognizable at the King*i Courts at Weitmiotter, I think ^ go a long waj to shew that he has been illeffallj sot for thai this is not tne crime, or one of the crimes oyer which the legislature intended to give the Courts of Canada Jurisdiction^ because it was onl^ to the trial of offences not cugnizable bj anj jurisdic- tion, that the 43d Geo. Iff. made provision. I would ask if it is not evident that there are two ofiences, viz. treason and murder, whicn can not be tried under this act, because thejr can be tried in England ; the case of Shaw completely cm- braces this principle. That the statute must be strictlj construed^ f notwithstanding the observatiooi of Mr. Solicitor General that as a remedial sta- tute it ought to receive a most liberal interpreta- tion, I contend that its construction ought to be most rigorous, and for tne reason^ I before as- signed in the early part of this discussion, viz. that where jurisdiction is conferred independent of locality, there the greatest strictness ought to mark the construction of acts of parliament; va« rious reasons might be assigned, but I will not detain the Court by reference to them, as we think, in that case, yuur honours will find the doctrine completely recognized. Here the case is much stronger, a Court does exist wher^ cog- nizance can ^ taken of this ofTence ; the Kin^s Court at Westminster. I shall refrain from trou- bling the Court further, conceiving^ I have offered sufficient in support of our propositions, the one for a new trial, and the other in arrest of judsc- inctit. A new trial we consider ourselves entitled lu, upon the ground of the irregular receipt ol'i the confession, and the misdirection of your hoD- uurs as to the boundary-line, inasmucn as jou laid down northward to mean due north. In arifs* tan i Ihe King'i a long way so, for that i crimei oyer v« the CourU as only to the any jurUdic- provition. 1 there arc two which can not ly can be tried joropletely cm- itatute muut be iheobeervatioDi Et remedial sta- jcral interpret^. ion ought to be on I before as- diicuseion, viz. id independent of itnesd ought to ■^parliament; va- , but I will not to them, as we in will find the , Here the case cxiBt Wherp co|j. We; the King* efrain from trou- ijr 1 have offered .litione, the one - arrest of judee- [ourselves entitled tcular receipt ot rtVon of your hon. linaBmuch as J^*^ G27 of judgement, I conceive the indictment to bo de- fective and tliat this Court has no jurisdiction. 7%« argument being closed^ the Court was utl- journed tilt Friday nu>ming^ the 5th imtanl^ at 10 o'eioekf A, M. .\ 4' 'H ft ^, IMAGE EVALUATION TEST TARGET (MT..3) 1.0 HO ^^" 25 2.2 II >•■ ^ "^ ym A / Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. MSSO (716) •72-4503 •NS V ) in t Wi-i 'm '^mt'f 6^5 Friday, 5th June, 1818. PRESENT AS BEFORE. Chief JusHce SewelL — The Court is now called upon to deliver the judgment on the ground urged by the gentlemen who are counsel for the prisoner, on a motion in arrest of judgment, and also for a new trial. Jn support of the motion in arrest of judgment, the jurisdiction assumed by this Court has been objected to, on a variety of grounds, and very strictly oxamined, and in so doing, it has been held by the prisoner's counsel, and opposed by his Majesty's Crown officers, Ist, that the statute of the 43a of the King does not give to any Court the power which we have assumed in trying the prisoner for a felony, and Sdly, that, on the Quebec act, in con» junction with the 31st Geo. III. we have put a misconstruction, and have misdirected the jury, who have consequently delivered an erroneous yer- dict. The gentlemen argued first that, under this act, no Court has jurisdiction over felonies com- mitted in the Indian territory, and they- further urged thfit, if that power is given to any, it is by pre-eminence to those Courts which were then ex- isting, and which had been previously known as the established Courts of the province, and this» being an extraordinary, or special Court, itti power is de- nied. They have further avowed that, if they ad- mitted that cognizance could» under the act, be taken of felonies, and by this Court, still the judg- ment ought to be arrested, because it was necessary that it should have appeared upon the indictment that the prisoner was a subject of his Majesty, and that the ofience was committed within his Majesty^s dominions, neither of which avermeftts are made, and it is contended that for these omissions, judgment ought to be arrested. In exhibiting the reasons upon wiiich the Court found its judgment, there are three 'I* m ^fc air /-M- ■ ' '^ i i I., Kit* " '4. .-*. f. Mi^ 6^6 points arising out of the statute of 45d Geo. III. Cap. 138, connected with the question of jurisdic- tion, which will demand our serious consideration. I notice, before stating them, that, on the l.^tl;i of the King it is alleged that we hav.e put a construc- tion as to the boundaries of his M^jes|ty'§( ^ciei^t province of Quebec, >yhich is erroneous* apd that we have followed up that miscipnstruction, \^y mis- directing the jury as to the limits of the province of Upper Canada. The argument of the learned gentlemen then states that, by this misdirection and misconslruction, we liave assumed a jurisdiiction which is not warranted. There were jtwp minor points stated, but having been before decided by the Court and the jury, they need only be mentioned : the first was as to any proof of the actual death of Keveny, and the second tiiat the cqnfessiop said to have been made before the Earl of Selkirk, \y as im- properly received as evidence. These are the whole of the points which have been suggested, and the Court will consider them in the order they have been now recapitulated. Upon the question of jurisdic- tion, there are three points arising immediately out of the act of the 43d Geo. III. cap. 138, as stated by the counsel. 1st, by this statute po jurisdiction is given to any of the. Courts. of the province, to try for any felony comnaitted in the Indian Territories, ^dly, that it has not given jurisdiction ta this Court to try for any offence conimittedii^ the Indian ter- ritory, and, 3dly, that it was necessary to aver in the indictment that the offence was committed in the King's dominions, and that the prisoner was a subject of his Majesty. These points demand, and have received, the most serious attention from the Court, and thj^ result of our consideration, as well as the reasons which have induced it, I shall deve- lope in delivering our judgment. The object of the 6^7 act ot the iii of the Kltig, As we gather from its entire context, taking the act as a whole, appears to hav« been thi^ ; to give jutisdiction 16 the govern- ment of Lower Canada, for the punishtnent of ofi fences committed, hot solely ih the Indian territories ^hich were considered ds bdbngirig tb the tiritish dominions, but in dthet parts of America, viz. in European settleinents, if committed by subjects ; for this purpose in the enacting clabse, after having recited in. tne preamble the necessity for the act, it declares that "frdm and kfter the Jjassing of this act ««all offences, committed Withiii any 6i the Indian "territories, or jparts bf America, nbt \vithin the "limits of either of the provinces of Upper or Low- " er Cana(k, or of any civil government of the "United States of America, shall be, and be deem- " ed to be, offences of the sattie nature, and shall be "tried in the same manner, and subject to the same "puhishment, as if the same had been committed "within the jprovince of Lower or Upper Canada." In the second clause, it gives to magistrates, whom it authorises and empowers the gbvernor| fieiiteniarit governor, ^c. to appoint, power, through the Indian territory, ahd iti both Canadas, to commit any person guilty of any crime or offence, and makes it lawful for any persbh to apprehiend and detain for the purpose of their b'eitig cony eyed to Lower Cana- da, any persbh so guilty ; " 2d, and be it further "enacted, that it shall oe lawful for the governor "or lieutenant governor, or pdrson administering " tiie government for the time being of the province "of Lower Canada, by cdmtoissiori under his hand I "and seal, to authorise and empower any person or "persons, wheresoever resident or being at the time, "to act ais civil magistrates, and justices of the "peace, for any of the Indian territories, or parts of ^* Aoiericii, not within the limits of either of the S/f; ''0 I'^i. 1 1,. ..% ■»■ 'B ■ 6^i «* said provinces, or of any civil government of tli< *« United States of America, as well as within the( "limits of either of the said provinces, either upon " information taken or given within the said proving " ces of Lower or Upper Canada, or out of the said provinces in any part of the Indian territories or parts of America aforesaid, for the purpose only of hearing crimes and offences, and committing any person or persons, guilty of any crime or oil " fence to safe custody, in order to his or their be- " ing conveyed to the said province of Lower Cana- ** da to he dealt with according to, lawv and it shall ** be lawful for any person or persons wbatsoever, to appreheiid and take before any person so coin* niissioned as aforesaid, or to apprehend and convey, or cause to be safely conveyed, with all conven- ient speed, to the province of Lower Canada, any person or persons, guilty of any crime or ofc " fence, there to be delivered into safe custody, for *« the purpose of being dealt with according to "law.** The third prpvides, iii certain c^ses, for the tttins- misSion of the crime or offence, for trial (if* th6 governor shall see fit,) to the province of Upper Canada, but it enacts that every such offender may be prosecuted and tried in the Court of the pro- vince of Lower Canada, and that he shall be sd, un- less •* the governor, lieutenant govertior, or person " administering the government for the time being, " shall, from any of the circumstances of the crime " or offence, or the local situation of any of that %it* " nesses for the prosecution or the defence, think that "justice may be more conveniently administered, " in relation to such crime or offence, in the province j " of Upper Canada, and shall, by any instrument, "under the great' seal of the province of Lower " Canada, declare the same, then that every such « (( « « « « (( C( fl< mo ** offender may and shall be prosecuted and tried, *« in the Court of Upper Canada, in which, crimes << or offences, of the like nature, are usually tried, .'* and where the same would have been tried, if such <* crime or oifence had been committed within the " limits of the province, where the same shall be «* tried under this act." This clause goes on to provide that " every offender tried and convicted, " under this act, sliall be liable and subject to the « same panishment, as may by any law in force, in the ''province where he or she shall be tried, be in- "flicted for such crime or offence " Another pro- vision made in this clause is, that the crime and of- fence, " may and shall be laid and charged to have "been committed within the jurisdiction of such <* Court," and that the Court shall proceed on it, in every respect, as if it had really been committed iathe province, or within the jurisdiction of such Court. Having thus declared the mode of trial, and gi\^n the power of awarding punishment, the clause pro- ceeds to give power to take the necessary steps to ftecure and enforce the attendance of witnesses. Authority is therefore given, to the Judges and other officers of the Courts to issue subpoenas and other processes, and such subpoenas and other pro- cesses are made as valid and effectual, and are to be in full force, and put. in execution, in any parts of the Indian territories, &c. as fully and amply as any such subpoenas, or other processes are within the limits of the jurisdiction of the Court from which such subpoenas may have issued. By the next clause, the fourth, it provides and enacts ''if any " crime or offence, charged and prosecuted, under 'Hhis act, shall be proved to have been committed " by any person or persons, not being a subject or "lubjects of his Majesty, and also within the limits l-j'l 690 M f S.lESv' '. l/l " .-1 It ! fc, ftt. ■< / " *♦ of any colony, 8ettleiyi0nty oi* territoiy, t)elong, <r of any eivih^ed govertf* nt of the United States of America, jLJpon what artof the evi^epce they \ave made up their ver- ict, it is not for us to say, but it is therefore im- h •" -VT'i "• ill* S 6S2 ^ ^}t m^' material, upon this finding, wliethf r he was a subject or not, because, being in the Indian territories, as described, he owed a temporary allegiance, and was clearly within the jurisdiction of this Court, which is what the Crown alleges. If, instead of this, the offence had been bona fide committed in some colony or settlement belonging to some European state, then the prisoner should have shewn it, as also that he was an alien. To enable him to do this, it was not necessary that the Crown should have alleged him to be a subject, nor that the oflence was com. mitted in the King's dominions. In the general course oi practice it might be necessary for this plea to i>e made in abatement, or in accordance with general principles to plead it in law, but under the present statute, it evidently is not so, for upon the general plea of not guilty, it is competent to him to prove that he is an alien, and that the ofifence was committed in a colony belonging to some European state. The statute provides that pleadings in bar, or abatement, are unnecessary, because it admits them to be proved upon the general issue. If we again read the fourth clause, together with the 6f^h» this will be apparent in a moment. ** 4th. Provi- «< ded, and be it further enacted, that if any crime «< or offence charged and prosecuted under this act <* shall be proved to have been committed by any *< person or persons, not being a subject or subjects *< of his Majesty, and also within the limits of any "colony, settlement, or territory, belonging to any *' European states, the Court before which such *< prosecution shaii be had, shall forthwith acquit « such person or persons, not being such subject or « subjects as aforesaid, of such charge. 5th. Provi- *< vided nevertheless, that it shall and may be law- <*iul for such Court to proceed in the trial of any| " c ther person being a subject or subjects of his • 6dS "iongingto^-L^g Vj^tttement. or territory. Z upon the trial of the irenir«i " '" PW« two facts medi.teljrentitle hK^;tr."h' "''*='? *'" ^"^ M was observed bv 1,^ T- ?" »«iu»t«al, but. F«pner. and for. as we tlSk ^ r^*"*"*" "P»" «i« obvious. He can best prov^J.. ^*'°" ""fficiently most interest i„ doW so Tft , ■ "" "^^'^ « has do sk' ^'''^ «hewn f colony, and why shouK .. ^'" "" ^•"ope- &ronrable circumstances thin ^"^ ""'' '» more where half of what musThave conifT. fo««rt'on, « cut away by the find „^ of X ' '" '^^^"^ flares tlmt the offence waf coJifJ"/?' ^'"''h de- temtory. and not ih anv Ku^ '"^'' '» 'he Jndian ^™g the sute of the ZXr^tV^r^' ^his beaded, for it is rtsit« Kit': lit m • ^ ■■«: Mr . 1 "■I v I .^ ft T dttti upon the Court to hold him to b6 tn dlietl, ttnd entitled to an arrest of judgment, without a tittle of proof, not 80 much even as an affidavit^ that he is so, whilst, on the other hand, the positive finding of the iurj declares it to be a matter of no consequence, as the offence was committed in the Indian territo- ry, it is manifest if, before the finding of the jury, We could not extend to him the riffht of acquittal, or relieve him fj^om the authority of the statute, that we can not now that the verdict of the jury has ac- tuidly disproved half of that which it was necessary for him to prove, to justify the Court in forthwith acquitting him. This much then, relative to the person of the prisoner« and I now shall consider the crime wherewith he is charged. It is felony and murder, and it has been argued, and very ably ar- gued too, by the gentlemen engaged on the defence, that we, that is the Courts generally^ have no jurisdicftion over felonies committed in the Indian territories! and specially it has been urged, that a Court of Oyer and Terminer has not. It will be betteii* for us therefore to settle this pointy and we will enquire first, whether to any of the Courts of this province jurisdiction is given over felonies Com* mitted in the Indian territory^ and if we find that there is, we will prosecute the enquiry so as to as^ certain whether this Court ought to be considered one of them. In reference to the first question j the gentlemen engaged on the defence, in support of their position, have produced the case of Shaw at large, and contend that it satisfactorily proves that« Under the term " crimes and ofTences^** power is not given to try for a felony. Any decision of my Lord EUenborough is unquestionably entitled to the ut- most respect, and so is this, stnd it will receive it from this Court. It is evident, upon looking at Shaw's case, that it is nothing more than a trial »ei an allien, ^rtd thout a tittle of nti that he is so, tive finding of \a consequence, Indian te^rito- ing of the jury, )t of acquittal, he statute, that he jury has ac- t was necessary t in forthwith relative to the all consider the is felony and very ably ar- on the defence, •ally^ have no in the Indian urged, that a >t. It will be pointi and we the Courts of r felonies Com- ' we find that |r so as to aS' be considered irst question ; 3e, in support rase of Shaw at ly proves that, *■ power is not m of my Lord ed to the ut- vill receive it ;>n looking at ihm a trial 635 arises, i, an extension to „;k" "^^'"^ «'•«*'» cm^ statute, a statute of wL'/n fT '^ * P^^S provmon for the trial if ^*"'' **»?> ^hich mado onlv Al;!^^ ™«4eineanor8. and m; ? ' """^^ ZnL '^ " *" ""doubted iirnn? I '""den'eanors leJonv can «/%♦ I "uicH princiDift nP !..>„ .. *e'onv can nou* '="„ '1 r'"">'« of aw E "•warding punishaie it u?n„ , '"'?'* *'>e power of toe statute upon which H.» „ ?' . ""' '"eluded in I was not doubted that th»"'"''i'°" *«» ofied crimes and offences f n% f^P'^^ation of the wrZ"' 'Je manifest difference h«fi ^^'^ «ere we see «;« principle, and the sSS^l^r ^^''' "P^^t.^'n' particular oaeo !»# T^^'?* appucation rxt-u . " tngjudg^enStbji^^^^^^ in^! Kive that th^dls^^^'n"'''*'"* «'*'"»S w^ Keason.andi??l"ita:^^^^^^^^ -((!.■' f'-'i mu'^'J.^- J*. 5 ■ J; €S6 f -iff ft 'Pi:, "■ '' ':V ■¥M '»-i;/ i; * a \'4. J^il - < i ^'iin -i 4 '-I last edition of dial work, with Mr. Cliristian'ts notes, there is, at this place, some potes relative to the distiQction between crimes and misdemeanors, in which language can not be clearer or stronger, and I add them because, since Mr. Blackstone is no more, this construction of* his sentiments comes Vrom a man certainly entitled to our highest respect, and I will therefore read it, ** In the English law, mis- ^ demeanor is generally used in coutra'distinction ** to felony, ;;nd misdemeanors comprehended all in- " dictable offences, which do not amount to felony ; "as perjury, batteiy, libels, conspiracies, attempts " and solicitations to commit felonies, &c." In the following page, in considering the distinction between public crimes, and private injuries, he Is equally clean ♦* The distinction," he says, "between pub» " lie crimes and private injuries seems entirely to " be created by positive laws, and is referable only '* to civil institutions. Every violation of a moral " law, or natural obligation, is an injury, for which •* the offender ought to make retribution to the in- ** dividuals who imnieJiately su^er from it, and it is *^ also a crime, for which he ought to be punished to " that extent, which would deter both him and ■* others* from a repetition of the oflfence. In posi» *^tive laws those acts^^are denominated injuries, " for which the legislature has provided only re- " tribution, or a compensation in damages ; but when "from experience it is discovered tlfat this is not " sufficient to restrain within moderate bounds ''certain classes of iniuries, it then becomes ne< "cessary for the legislative power to raise them '* into crimes and to endeavour to repress them "by the terror of punishment, or the sword of the ** public magistrate. The word crime has no tech- '* nical meaning in the law of England. It seems, ♦' when it has a reference to positive law, to com- suan's notes, ative to the emeanors, in stronger, and kstone is no ts comes from t respect, and ish law. mis- tra-distinction sbended all in- ,unt to felony, ^cies, attempts ,&c." In^^^^ nction between ^ he is ^^*^y "between pub- •ms entirely to referable only ion of a moral jury, for ^^''^ tion to the in. rom it, and It IS , be punished to both him and rence. In P^ inated injunes, ^vided only re- ^ages; but when tltat this is not ,denite bounds ^n becomes ««' r to raise them repress them iie sword of the imc has no tech- (and. It seems. [iv^ law, to com- 1 637 <^ Jl^rehend those Acts which subject the ofFendei' to ^'punishment. When the words high crimes and '* misdemeanours are used in prosecuting by im<^ ** peachment, the words high crimes have no defin* '< ite signification, but are used merely to give great*" ** er jMemnity to the charge." One of the objects thf^n of legislative interference is, by the ten or of the punishment upon the offender, and the sword of th^ civil nmgistrate, to repress crimes* From Mr. Black^tOne's definition, and Mr^ Christianas notes^ there can be no doubt then entertained, but that the words ^* crimes and offences" may, and do, in ordin^ ary acceptation, include felonies $ it only remains then to enquire, does the term <* crimes and affeti* ces," under the present statute, include^ $nd give jurisdiction over them ? The true question is this^ ^hether^looking at the statute upon which the pri$« oner is^ charged^ in connection with its conte^ct^ it {^pears to have been the intention of the legisla* t»re to give jurisdiction in cases of felony^ by the use of the words " crimes and offences^" which so firequently appear in the enacting clause of this ^tatute^ This clause is certainly most comprehen^^ sive i it i$ in general words, and amply sufficient to include felonies. The jurisdiction is given ip these ifotdsf which must certainly comprehend felonies. Sec< 1^ "AH offences comntitted within any of the *< Indian territories, shall be, and be deemed to be, '^offences of the same nature, and shall be tried in ^*the same manner, and be subject to the same pun- '^ishment, as if the same had been committed with« **ia the provinces of Loiirer or Upper Canada." The words made use of are, all offences, and any of the Indian territories^ but, notwithstanding this gen-« end description as to crime and locality, it has been urged, however, at bar, and plausibly urged too, that the preamble a£ this statute is dififerent, it will be 8 S 4 ii * 5r J '4 't '!i '( S .* I it « •■;■!', m 1 ^^ .'1 f ( ess necessary, therefore, to have recourse to the pream^ ble, to ascertain whether it is in opposition to these words, and it is as follows: *< Whereas crimes and *' oifences have been committed in the Indian terri- *' tories, and other parts of America, not Within the ** limits of the provinces of Upper or Lower Cana- '* da, or either of them, or of the jurisdiction of a* ** ny of the Courts established in these provinces, or '< within the limits of any civil government of the ** United States of America, and are therefore not '* cognizaUe by any jurisdiction whatever, and bjr *' reason thereof, great crimes and offences have ** gone, and may hereafter go, unpunished and great- ** ly increase." Now it is said, in reference to this, (and said truly,) that for murder committed by a sub ject in a foreign territory, thereny was a jurisdiction, already estabfished by the Act of d3d, Henry VIII. cap. 23. and a method provided, in which that juris- diction shall be csirned into effect, viz. <* that murder ** confessed by a person, who' has been examined by ** three o£ the Council, or who is vehemently sus- ** pected to be guilty, may be heard and determined «< before commissioners of Oyer and Terminer, in ** any county of England to be named by the ** King." Originally this Act extended to treason, and misprision for treason, but has been repealed in relation to those crimes, but not in relation to mur- der. Here then, it has been argued, is the Court where the offence of murder, if committed in for- eign. parts, should be tried. The question is, is this the true import of the preamble of the act of the 43rd, Geo. lit. cap; 138 ? Does the context agree with the text ? The preamble can not be understood bat with reference to the state of America. The object of the whole statute, is to provide a local ju- risdiction in America, for the trial of crimes com- mxtted in the Indian territories, and why ? The i 639 preamble of thp «/^* * n «^; that great crimeTant "ffel: """*"*• ^' telJs where does it say thev-ro*^** "* committed. erQ,„ada. whereTer^foTr""?^'' Not in Low-' P« Canada, where thev^fL"? *"«'** not in Up. "• the limits of any civIL^*^' '*" *"*'' ' ""t wh?. States pf AmericJ^whll ^r™"?^!!* **^ the United mention of the proVincHf P ^ "i*"" ''« *"«d : tM, «d States of An^ricl !^^'""^''""^«>ftbeUnit- T»'^ must be unSSd ?„""r''**"* *''«» the* "?'« strictly Jocal '^e „~f^'t?''*°*J''"««* cnmes are committed in the iSnf "^'^ • ""^^'es that no cognizable, by unvi^]^^"''' 'f ^tory. and are '«. m America.) o^r "/tCnfe*''"'''?*^^'-' CthaJ adapted to the Decessi^f t h^ ^ *»yj"™diction "■e legislature say, weSl fof *^!; ^J' ""s act, erect a competent jurl2„n- ^T^^ °*' t^s evil, [ f"8 appear a fair a„H -!k " '" America. Shoald pWe, yet itZylgl te th?"*'^'»" °*^^'' not always a guide to exm>™i^/* Preambles^ fi^W. versuslidingrjo 'Tm f^"**V C"** «>f are not, most certaini v 1 V ^- * ^- ^ar. If. Thev I explain, it can not rest™"n th? ^ Preamble may " clauses." In this ami ii^ "® *"' «!» of enacting Uble and e^C/ct^tL't '* '^^- ►Wher, as the context of fhl^.^ *** ''* construed l-eitations on th"?ffect o?^ '''*'"u^ That these .mm upon enactiuff df P^'T'''^'' «"• ^^eir o- k numerous authoriti« ? f t" »*=*• «« cor- honstrate. J Sj h^. "'«''* •«» produced to p-^ as clearly es abthwr/' ^'P^yjf^to one o^ K that fehe preamW^ "'^ P^^^PJe I have laid K jointly be coSS' wTth ref^^'"* ''''''^^ r <^ the ihimere of T staTut. '^^^pn<^e to the in- H' niust be our iuWeIn ^' ^''•5') "P**" «" ««- K or «positriro"u?hrr"rS'L!^"t # 646 Viner*! arbridgement, l^ vol. p. 521| sec. 100, it h said, ** the preamble is a key to open the minds *' of the makers, and the mischiefs they intend to ** remedy j" this was said by Dyer, ch. J. Pl. S()9, in case of Stowel, rersus Zoiich ; I refer also to Coke upon Littleton, 79 a, for the same doctrine. At the same place in this volume of Viner is the dic- tum of three justices, in the case of Barker versus Riding beforementioned» relative jto preambles, and it is imn^ediately followed by an extract from 8th Afod. 144» in the case of the King versus Althoes, which elucidates and enforces the position relative to the joint exposition of the clauses and preamble. •• Per. Cur, It is no rule, in the es^poaition of stat- " utes, to confine the general words of the enacting *^ clauses to any particular words introducing it, or ^* to any such words even in the preamble itself j it ^* is true, 'my Lord Coke commands a const|:uction ^ which agrees with the preanibte, but not such as "may confine the enacting pait to it." My Lord Chancellor Cowper, a man most certainly en- titled to our respect, seenqis to go i^U fours with this construction, in ssiying that he could, **by no means, "allow the notion that the preamble shall restrain " the pperatton of the enacting clause, and that, be- ^ cause the preamble is too narrow or defective, ^* therefore the enacting clause, which has general " words, shall be restrnined from its full latitude, **not within the preamble, W. m. s. rep. 3S0, trin. ** 117169 in case or Copeman versus Gallant." This opinion on the Coventry act seems expressly adapt- ed to this case, and is conclusive as to the mode in which law, as well as common sense, requires that preambles and enacting clauses shall be construed in Illation to each other. The piinciple has indeed been carried much farther, it has been held that, ^' all things which may be taken within the mischief "of the statute, shall be taken within the equity of ^< it," and, under this interpretation, it is said tbat, consideration b^ing given to *'the true reason of "the remedy, and then the office of the judge- is aU " ways to make such construction as redresses the ** mischiefs, and advances the remedy, and to sup- " press subtle inventions and evasions for continue " ance of the mischief, 'axii pro privato commodo, and > " to add force and life to the remedy, according iai " the true intent of the makers of the act, pro bono ^* publico,** This also is from 19th Viner, page dQH,' Without saying tliat it is the province of the judgt^* to go that length, I shall apply the general I'ules tO' thiscase^ In the first instance, the words that givj* the jurisdictioa are, ♦* all offences committed witbin ** any of the Indian territories shall be, and be deem- ** ed to be, offences of the same natiire." How can * words be stronger or more general? If we go a lit-* tl^ farther to tlie third clause, we shall find it enacts, *' that the Court may and shall proceed therein," (that ia in each case of crhne or offence committed ia the Indian territory,) "to trial, judgement, and *' execution^ or other puniahment^ for such cuin^ or K <: i yWfwy^r^ 1 Pf] il W9% »> :l 64« ** offence in the sdtne ihanner^ cis if such crime or of. ^* fence had been redly committed within the juris- ** diction of such Court." These words are cer. tainly as general, and as strong, as those of the for. mer clause, which gives the jurisdiction. It is im- possible to make tl>em stronger, or more general, and it is equally impossible to take for them an in- terpret^toh more limited than the words impoit, and that too when it is confirmed by a second, which, without any exception, certainly confirms the most extensive jurisdiction. But there is a part of these words which requires and deserves a more particular consideration. What are we to understand by the words, judgement and execution, in connection, as they are, with the words, " or other punishment ?** By the two expressions, the act must surely refer to the same punishment as is usually awarded, in umilar cases, in the province where the same may be tried, deferring then to the case of Shaw, which is a clergyable ofience, what would be the record ? or take a case nearest to that of the prisoner, a case ci* felony and manslaughter, which may be found in Blackstone's appendix. Hunt's case ; '* upon their •^cmth say" (that is the jury) "that the said Peter ^^ Hunt is not guilty of the murder aforesaid above ^ cWged upon him, but that the said Peter Hunt ^is ginky of the felbnious slaying of the aforesaid ** Samuel Collins, and that he had not, nor hath, any ** goods or chattels', lands or tenements, at the time *' of the felony and manslaughter aforesaid, or ever « afterwards to this time, to the knowledge of the « said jurors : And immediately demanded of the « said Peter Hunt, if he hath, or know^th, any thing « to say, wherefore the said justices here ougnt not, << upon the premises and verdict aforesaid, to pro. « ceed to judgement and execution against him, who ^< say eth that he is a clerk, and prayeth the' benefit of mmr- m 643 m rime or of- 1 the juris- 3 are cer- t>f the for- It is im- •e general, hem an in- ds import, md, which, IS the most irt of these e particular and by the nnection, as Dishment ?" surely refer gtwarded, in ; same may Shaw, which the record ? ioner, a case be found in ^upon their said Peter •esaid above Peter Hunt ihe aforesaid lor hath, any at the time Jd, or ever edge of the tided of the jh, any thing ought not, id, to pre isthim,who « clergy to be allowed him in this behalf ; whereupori> *< all and singular the premises being seen, and by «* the said justices liere fully understood, it is con- ** sidered by the Court h^re that the said Peter Himt *< be burned in the left hand and delivered, and im- « mediately he is burned in his left hand and is de- « livered, according to the form of the statute." What then do judgement and execution imply? they imply that punishment which i^ usually award- ed in all cases of felony and pre«eminently the pun- ishment of death ; judgement and execution mtmt imply, in the language of the law^ uUhnum supplu dum, the judgement of death, and its execution, and that it is the punishment of death which is by these words designated in the statute, is manifest from what immediately follows, viz. or other pun^ ishment. The words are, •* the Court may and *' shall proceed to trial, judgement, and executioner ** or other punishment, for such crime or offence, iri "the same manner in every respect, as if such crime "had been committed within the jurisdiction of such* " Courts." To what end is it, if onl^ any other punishment than that of death may be awarded un- der this act, to what end, I ask, is it that the words [judgement and execution are made use of ? It is oQanifest, it is evident, that the legislature, in this I act, intended to give us the power of proceeding to judgement and execution, to award the punish-' Uent of death, emphatically the ultimum supplicium [of the law. If so, if power is expressly given to in- Ijlict the punishment of death, it must necessarily fol- IW that it was the intention of the legislature, by ithe previous clauses, to give the power of trying for Ifelonies, because the punishment of death can only^ |l|e inflicted after convictions for felonies, and the ^plications, which were drawn from the preamble ky the gentlemen engaged on the 'defence, arc ne^ m U4f ^esaarily done away. If these words^ . judgerneni gnd eKecutioo, by i^itl >ind technical coDstructioni mean the uliimum mpfikiumt we, that it the Courts i)f LiOwer Canada, have these poweis^ and th«!re is nothing to stay us in this Court if we have them^ and that we have them,, can, I think, haitdiy be de^ lfi«d« It is . useless to comment at length upon clauses which< in the strongest and most forcible way, declare, ixf almdst every word, that .we have tliis power. By ihe first clauses in the sict it is de* eiarod, that the ofilence shall, be tried iii the same manner as if the same had been cc^nunitted in Low" ej^ Canada^ Now we try by various waysi in crim- inal proceedings, but always by aiury, sometimes by the Court of King's 3ench, and semetimes by a Court of Oyer and Terminer. By the Sd clause it Jwovides that the offender may and shall be proses ^uted and tried in the Courts of the province of JLower Canada. It does not mention any. particu- lar Courty it is a^ if it said in any Court \ let theof^ fence be tiied at the customary tribunal ; but pro- ceeding a little farther in this clause, it designates, to a certain extent, what Court ; ." the Court in *f which crimes and offences <^ alike nature are V usually tried,'' that is to say# in any Court not a civil, hut criminal. Court ^ and it goes on to say, as a. further designation, and certainly it is a most d^ cisive one, ^' and where the same would have been /'tried if such crime or offence had been committed ** within the limits of the province." What can be plainer, let me ask ? where, had this offence been committed within this district, would it have beei tried, but in this Court ? The Crown has the right bf choosing its own Court ), would it not have been in this Court that the prisoner would have been tr^ ed ? '5uese clauses are so forcible, and carry their own strength so Completely with them, that it is re< ti tic \ iudgemetii jistructioiii the Courts iiid tiaefe is luive ihefn< Mjdly be de* engtb upoii ost foTciWc ,at .w« bave suet it is de- . ift the 8*«»e itted in Low- rays» in ccira- aonietimesby [ietime8 by a e 8d clause it hall be prose- le province ot , any. particu- irti let the ot- inal; but pro- L It designates, tbe Court ift ' ^e nature are ly Court not a ^ on to say, M it is a «no»^ ^^ )uld bave been .^en committed ^ What can be lis offeree been Id it bave betf U bas the nght ' not have been I , have been tri- fnd carry their | ^ ;, Uiatitisie- 645 ally unnecessary to expatiate upbn them; 1 shall now touch brieny upon the other points. AVhat I hare hitherto said has been upoii the 4dd, what I bave now toi^emark upon, is* that which is connect-^ ed with the i4th» of the King. The points connect- ed with this act had been already decided dur- ing the trial, yet if there had been any thing advanc- ed to induce the Court to change its opinion, you shoi|ld assuredly have had the advantage of it, but there is nothing : the act of the 14th of the King, is commonly called the Quebec Act; In the first dause of this act, the boundaries of His Majesty's ancient province of Quebec are described. It is unnecessary to read the whole, biit it reatches the riv- er ** commonly called Niagara, and then along by ** the eastern and southeastern bank of Lake Eiie, 'unishment those who so daringly violated the law. It was under these circumstances that you, in cold and unprovoked malice, took the life of Keveny, and stand to receive the judgment of the law for the felony and murder. I should be un- woVthy of the situation I hold if I could, even to you, say any thing for the purpose of aggravating feelings already, 1 hope, sufficiently agitated. No, the whole is a duty too painful to allow such an un- wortliy feeling to creep in, and that which yet i e- ains is the most painful. Before that last and igonizing part of my duty is performed, it is right # m articularly, fear your's doubt that lat marked y atrocity. : in derelic- wbich your Lyou, if not m took was ircumstance II as a civil g your crime ; laws which , wlieii you lat life which, id to protect, )«! you was his country, arrested him, advert to the coinmitleeh [e crime had ood subject, . in bringing violated the IS that you, the Uie of ment of the 'ould be un- [uld, even to aggravating itated. No, such an un- liich yet le- that last and d, it is right 651 to tnention, but not to excite a hope of pardon, that . sometime will elapse, from the peculiar cireximstan^ ces of your case, previous to the judgment being carried into execution, but let the delay not delude you into a hope of pardon, and that you can ulti- mately avoid your sentence^ No, in this world there? is no hope for pardon, there can not be ; whoso sheddeth man's blood, by man shall his blood be ihed, is the law of God and man on earth. Whilst I say this, I am bound, on the other hand, to protect you from despair ; there is another world, another bar at which, and another judge before whom, you! hav« to appear, and where you, a murderer, to your unspeakable joy, may hope for pardon, by sincere and heartfelt repentance towards God through our Sav- viour Jesus Christ. Let me then urge upon you > most strenuously, by a consideration of your need ol^ the atoning blood of a Saviour, to wash you fr your guilt, to use the interval between this aw: and that still more awful, moment which will, though delayed for a time, soon introduce you to another world, in recommending to the Saviour of the lost, your precious and immortal soul ; and I conjure you let not a hope of pardon lead you to trifle with the pre- cious moments between you and death. It is my duty thus solemnly to out you on your guard against such a delusion; however long delayed, the execution of your sentence must arrive eventually. I have little more to say to you on this awful occasion, only, as I always do from persons in your situation, endeavour to draw from you a lesson of instruction to those who surround you. We behold in you an awful exam- ple of the depravity of human nature, and ought to learn to watch our footsteps lest we fall. Till you went into that unhappy country, you appear to have supported the best of characters in the army, I H mm , mi and ail a maii. tiotv guarded then ought \^e to be against the first tenip^Qiia to iin^ seeing that such h oun alippery footboid» that Aere ar/e nonoibut, even Mrith the be&t "principles^ may fall, ere he id aware^ into the worst and most atrocious crimes. By the absolute example of you^ Charles De Reinhard, I wish to warn this assembly that the-first impression of crime must be resisted peremptorily* however slight, ^r there are none* (as you are aii awful example,) l^ut may be suddenly destroyed by its advances. You go* from this tribunal to another, where mo- tives may be estimated^ and to your unspeakable joy, at that bar is the Saviour of the world, who laid down his life ibr enormous sinsr such as yours and ours, for the sins of the whole world. Let me recommend ^ you to him in fervent prayer, and to his blood which l^eanseth fjfom all sin. Bring to mind that nothing t the most sincere md contrite repentance can imately secure an^ interest in his atoning bloody and may a consciousness of, an interest in it give you relief in your mind till the period, and support you at the time, of your ultimate punishment. : i<3rhe judgment of the law is, that you Charles De Beinfaiard, be takento the goal of our Lord the King, for the district ;o£Quebec, and from thence to the place of execution, on Mcmday now ;n^xt arriving, being the 8th of this instant June, and there be hang^ ed by the neck. till yon are dead, and tliat afterward your body be dissected and anatomized^ And may that God,4.to wdiose intercesuon and tri- bunal I have recommended you, have mercy upon your soul. IFINIS* »' .it ..*. \Ve to be r ibftt such Mbttt, even pis aware^ 3. By the leinhard, 1 [iprewion of ever slight, I example,) ivances. where mo- leakable joy, belaid down :s aod ours, 5 recomtnend I blood which that nothing )entdnce can toning bloody in it give you support you nt. : . tt Charles De [ord the King, ^ence to the Uxt arriving* here be hang- Ihat rfterward ion and tri- mercy upon :¥>^'i^' \ > l±3 (APPENDIX A.) ipROVlMeS OF 7 Lower Canada. J (Signed) J. C. StlERBROOKR GEORGE the Third, by the Grace of Gody oftM (L< S.) United Kingdom of Great Britain and Ire* land, King, D^ender of the Faith. TO otir trusty and ^ell l^eloyecl, the Honourable J6ha|]iail Sewell, Esquire, Chief Justice of and for our iVovince of Lower Canada, the Honourable James Monk, Esquire, Chief Justice! of our Court of King's Bench, for our District of Montreal, in our said Province of Lower Canada, the Honourable Oliver Perrault^ and Edward Bowen, Esquires, Justices of our Court of Kings Bench, for our District of Quebec, in our said Province of Lower Canada^ the Honourable Isaac Ogdeii, James Reid and Loub Charles l^oucher. Esquires, Justices of our said Court of King's Bench, for our said District of Montreal, knd the Hon- ourable Pierre Bedard, Esquire, the Provincial Judge fw our District of Three Rivers^ Know Ye that We have constitutecl and assigned you, or any two of you, of whom we will, you the said Jonathan Sewell, or you the said James Monk, to be one, our Justices, the Goal of our said District of Quebec of the Prisoners therein being for this time to deliver, and therefore we command you, that at a cert»n day, which you or any two of you, of whom we will, you the said Jonathan Sewell, or you the said James Monk, to be one, shall appoint, you do meet at our City of Quebec, in our aforesaid District of Quebec, our Goal of our aforesaid District 2 of Quebec to deliver, and to do thereupon what to Justice shall appertain, according to the Laws luid customs of England, and of our said Province of Lower Canada, saving to us our anier- ciaments and other things to us thence appertaining. For we have commanded our Sheriff of our said District of Quebec, that at a certain day, which youw any two of you, of whom we will you the said Jonathan Sewell, or you the said James Monk, to be one, to him shall make known, all the Prisoners of our said Goal, and their attachments before you, or any two of you, of whom we will, you the said Jonatliip Sewell, or you the said James Monk to be one, he then cause to come. In Testimony whereof wo have caused these. our Letters to be made Patent, and the gr^at seal of our Province of Lower Canada to be hereunto affixed, tod the same to be entered of record in our Register's office, or office of Enrolement, in our said Province of Lower Canada. Witness our trusty and well beloved. Sir John Coape Sherbropke, Knight Grand Cross of the most Honourable Military order of the Bath, Captain Gen- eral and Governor in Chief, in and over the Province of Lonrer Canada, Vice Admiral of the same, &c. &c. &c. at our Castle of St. Lewis, in our City 51^ Quebec, in our said Province of Lower Canada, the twenty ninth day of April, in the year of our Lord, one tliousand eight hundred and eighteen, and in the fifty eighth year, of our Reign. (Signed) J. C, S. (Signed) John Taylor, Depy. Secy . 3 ••<■•< ■< -^oc* >••>■>•■■*— Province of 7 Lower Canada. j (Signed) J. C. SHEKBROOKE. GEORGE the Third, by the Grace of God, of (L. S.) the United Kingdom of Great Britain and Ire- land, King, defender of the Faith. TO our trusty and well beloved, the Honourable Jonathan Sewell, Esquire, Chief Justice of and for our Province of Low- #■ Justice shall Bngland, and UB our araer- ling. For we it of Quebec, rou, of whom le said James e Prisoners of or any two of ^ell, or you the me* our Letters to ihce of Lower be entered of )lenient, in our trusty and well jrand Cross of I, Captain Gen- wince of Lower at our Castle of )vince of Lower jar of our Lord, 1 the fifty eighth er Canada, James Monk, Esquire, Chief Justice of our Court of King's Bench for our disirict of Montreal in our said Prov ince. The Honourable Ofiver Perrault, and Edward Bowen, Esquires, Justices of bur Court of King's Bench for our District of Quebec ih our said' Province of Lower Canada, the Honoura- ble Isaac bgdehj James Reid, Louis Charles Foucher, Esquires, Justices of our said Cburt of Kings Bench for our District of Montreal, and the Honorable Pierre Bedard, Esquire, the Pro- vincial Judge for our District of Three Rivers in our said Province. Know ye, that we have constituted and assigned you, or any two of you, of whom we will you the said Jonathan Sewell, or you the said James Monk, to be one, our Justices to enquire more fully the truth, by the oaths of good and lawful men of the District of Quebec in our said Province of Lower Canada, and by other ways, methods, and means, by which you shall or may tlie better know, as well within liberties as without, by whom the truth of the matter may be the better known and enquired into, of all Treasons, Misprisions of Treasons, Insurrections, Rebellions, Counterfeitings, Clippings, Washings, false Coin- ings, and other falsities of the money of Great Britain and other Kingdoms and Dominions whatsoever, and of all Murders^ Felonies, Manslaughters, KilUngs, Burglaries, Rapes of Women, unlawful Meetings and Conventicles, and unlawful uttering of words, assemblies. Misprisions, Confederacies, False allegations, Trespasses, Riots, Routs, Retention, Escapes, Contempts, Falsities, Negligences, Concealments, Maintenances, Oppres-* sions. Champerty, Deceit, and all other evil doings, offences, and injuries whatsoever, and also the accessaries of the same, within the District aforesaid, as well within liberties as without, or committed within any of the Indian Territories, or parts of America not within the limits of either of the said Provinces of Upper or Lower Canada, or of any civil Government of the United States of America, by whomsoever, and in what man- ner soever, done, committed or perpetrated, and by which person or persons, how and afler what manner, and of all other articles, and circumstances, cuuccrning t?ie premises, and every of them, If*' m w or any one or. more of them, in any inanner whatsoever; and the said Treasons, and other the premises, according to the Laws and customs of England, and of our said Province of Lower Canada, for this time to hear and determine, and there- fore we command you, that at certain days and places which you or any two of you, of whom we will you the said Jonathan Sewell, or you the said James Monk, to be one, shall for this purpose appoint, you do, concerning the premises, make dili- gent enquiry, and all and singular the premises hear and deter- mine, and those things do and fulfil in form aforesaid, which are to be done as to Justice doth belong, according to the Laws and customs of England, and of our said Province of Lower Canada, saving to us our amerciaments and other things to us thence appertaining. For we have commanded, an(^ hereby do command, our Sheriff of our said District of Quebec, that at certain days and places which you or any two of you, of whom we will you the said Jonathan Sewell, or you the said James Monk, to be one, shall make known, to cause to come before you, or any two of you, of whom we will, you the said Jonathan Sewell, or you the said James Monk, to be one, such and so many good and lawful men of his Bailiewick, as well within liberties as without, by whom the truth of the Premises may be the better known and enquired into. In testimony whereof, we have caused these our letters to be made patent, with the great seal of our said Province of Lower Canada to be hereunto affixed, and the same to be entered of Record in our Register's office, or office of Enrolements, in our said Province of Lower Canada. Witness our trusty and well beloved, Sir John Coaps Shersrooke, Knight Grand Cross of the Most Honourable Military Order of the Bath, Captain General and Governor in Chief in and over the Province of Lower Canada, Vice Admiral of the same, &c. &c. &c. at our Castle of Saint Lewis, in our City of Quebec, in our said P-?vince of Lower Canada, this twenty ninth day of April, in the year of our Lor^ one thousand eight hundred and eighteen, and in the fifty eighth of our Reign. (Signed) J. C. S, (Signed) John Taylor,"! ^ Depy. Secy. } joever; and ding to the Province o€ ,, andtViere- ;e» which you ud Jonathan jhall for this 8, make dili- ;ar and deter- mid, which are to the Law» Qce of Lower IT things to us a, an<^ hereby ' Quebec, that two of you, of t you the said » cause to come 1, you the said to be one, such liewick, as well »f the Premises r In testimony le made patent, |er Canada to be Record in our ir said Province beloved, Sir OSS of the Most General and Lower Canada, Castle of Saint '/ince of Lower rear of our Lord the afty eighth I) (APPENDIX. B.) Charge to the Grand Jury, Delivered by the Chief \ Justice, 18th May, 1818. Gentlemen, THE system of criminal Jurisprudence which obtains in this Province, is more carefij of the life and liberty of the sub- ject, more provident in its dispositions to secure an impartial and careful investigation, than any other. It is not the off- spring of speculative theory, the labour of the closet accom- modated to the political views and designs of the Government, but the result of experience designed for the benefit of society, matured by the joint wisdom of successive legislators of all ranks and many centuries, and intimately connected with a con- stitution which perfect!/ attains the end of the civil and social union of mankind. By the authority of H|s Majesty's Commissions of Oyer and Terminer, and General Goal delivery, which have just been' - read. You, Gentlemen, have been called to participate in the administration of this excellent system, and, by the oaths which you have taken, you arc installed in an Office, highly honourable, and as extensive as it is honuorable. You are especially required to give attention to the mat- ters which you receive in charge from the Court, and to the accusations which the Crown Officers may submit to your con- sideration. But it must be remembered, that these are by no means the limits of your inquiries. It is your duty to search out, if it be possible, the concealed perpetrator of felony and misdemeanor, committed within the sphere of yoHr investiga- tions. No wrongs, no oppressions, are beyond your authori- ty — Whatever touches or affects the safety, the honour, or dig- nity, of the Crown, does violence to tlie rights of individuals, is forbidden by law, or is inconsistent with the public peace, is a proper object for your animadversion. No man, if culpable, is exempt from your accussing power, the very lowest, if inno- cent, is entitled to your protection. m 9 Tliisy gentlemen, is ao important trust, a trust which interests equally the Sovereig-n and his people^ and which you are to ex- ecute with prudence and deliberation, diligence, integrity, se- cresy, and courage, and, haying bound yourselves to this effect by an oath, originally framed in a clear and distinct view of all that is demanded of )>ou by the Law, your oath is, in fact, the best guide to the performance of your duty, aqd it behoves you to hold it in faithful recollection, as much in tenderness to your own consciences, as in duty to his Mf^esty, and to the community at large. You are bound by this oath diligently to enquire and make ** true presentment of all the matters and things which are giv- " en to you in charge," and ** to present all things truly as " they come to your knowledge, according to the best of your « understanding." Words so comprehensive demand no com- ment ; it is necessary only to remark, that the true and dili* gent inquiry which you have promised to make, does not bind you to this extended examination and severe scrutiny, neces- eary upon the trial of an offender. The object of this institu- tion is not ultimately the g^ilt, or innocence, of the accused, but to enquire, and to pronounce, whether the matter with which he stands charged, be, or be not, so circumstanced as to call for farther investigation. You are to present him for trial, if you have reasonable grounds (o believe that the charge IS founded in truth, to S9ve him fironfi this ignominy, the dan- ger and the inquietudes of a trial, if his innocence is apparent upon the Evedence adduced in support of this indictment, or so fairly to be presumed from it, that it cim not conscientiously be doubted. To do more is to protect the accused from the due course of Law, to invade the province of the petty jury, and to usurp from them the legal right of ultimate decision, to which they constitutionally, and exclusively, are entitled.— You have sworn, *< not to present any man from envy, hatred *' or malice," by which you engage to reject the influence of every wicked motive, but, to save yoH from an opposite ex- treme, you have also sworn, *' not to leave any man unpresent- ed for favour or affection," by which you engage to reject even / •hinteresU I are to ex- ;egrity, "c- o this effect t view of all lig, in fact, d ii behove* enderness to . and to the ire and make irhich are giv- ings truly as e best of your mand no corn- true and dili- does not bind crutiny, ntces- of this institu- afthe accused, le matter with rcumstanced as present him for Ithat the charge jminy, th^ dan- jnce is apparent idictment, or so conscientiously ;cused from the the petty jury, late decision, to are entitled.— im envy, hatred th« influence of an opposite ex- ' man unpresent- r^ to reject even the Influence of pity, compassion, and benevolencp, towardf delinquents of every description, to extinguish <»ich feelings by a sense of superior duty to ihe general body o. the public, lest they should excite in you sentiAeilts which might induce you to favour a criminal, and which ought, therefore, studious- ly to be avoided, because, if you favour, i/ou pardon^ and \u pardoning, you assume, on the other hand, a prerogative, con- stitutionally and exclusively, entrusted to the Crown. With a knowledge of the frailty as well as the depravity of our natures, the oath requires you, and you have sworn to abandon, even the ** hope of reward," and to discard all '* fear." A covenant that your conduct, in every respect, shall be disin* terested, impartial, and absolutely free from all pusillanimous apprehensions of consequences. This, with your promise to keep secret the King's evidence and counsel, your own coun- sel, and the counsel of your fellow jurors, constitutes the sum of your engagement. ' \ ^ . Gbmtiemen, We are aware the duties of a grand juror so frequently re- turn to many gentlemen in this district as to render them in some degree irksome, but we are convinced there are none among ^ou who regret the time or trouble which they require. If there was one, we would beg him to consider the high na- ture of the functions which he executes, their importance to himself and to his fellow subjects, and while he reflects that the corrupt performance of a grand juror's duty exonerates the guilty, punishes the innocent, and, by undervaluing the admin- istration of Justice, greatly injures the Government of his coun- try, we would beg him to remember, that a negligent and im- peifect performance of that duty produces the same effects. The inquest by a grand jury is indeed a privilege of high and inestimable value, but the mere form of it is nothing ; much of personal convenience and individual comfort must be sacrificed, if we mean to preserve an institution so pre-eminently bene- ficial te ourselves and to our country. Gbktlemen, Upon perusal of the Sheriff's calendar, we no not perceivii that it exhibits any comAments which require particular no* tice at this moment, it may however happen, that in the pro* gress of your enquiries some points of law may occur upon which you may be de||rOus to take the opinion of the Court, and, if this should be the case, you will find us at all times ready and desirous to afford you every assistance in the execution of your duty which it » in our power to give. The charge tvas likewise repeated in French hy the Chief Jus* ttce. It (U — — <-«-<"">">->"-**' (APPENDIX. C.) Province op Lower CAH'ADAt . . District OF Quebec, TO WIT. J At a Session of Oyer and Terminer and General Gaol De^ livery of our Sovereign Lord the King of and for the District of Quebec in the Province of Lower Canada, begun and holejeo at the Court- House in the City (?f Quebec in the said Districi. of Quebecyon Monday the eightevntli day of May, in the fifty eighth year of the Reign of our Sovereign Lord George the Third, by the Grace of God, <^ the United Kingdom of Great Britain and Ireland, King, defender of the Faith, before the Honourable Jonathan Sewell, Chief Justice of the said Province of Lower Canada, the Honourable Oliver Peirault, and Edward Bowen, Justices of the Court of King's Bench f ■; '«,H ./ar |; I- ^ii ':'■>■;-' ■■'Mi IS-:* 4v ' 55' V-J aM •yp' H iBgand maintaining, die said Charles de ReiiUiard the Moay and murder last aforesaid in manner and form last aforesaid to do, commit, and perpetrate : and so, the Jurors aforesaid, upon their oadi aforesaid, do say, that the said Charles de Reinhard, Archibald M'Lellan, Cuthbert Grant, Joseph Cadot, and Jean BapUste Desmarais^ him the^said OwenKeveny, then and there, within the jurisdiction aforesaid, in manner and form last aiore- said, feloniously, wilfully, and of their malice aforethought, did Icill and murder, against the peace of our said I^ord |he King, his Crown and Dignity, And the Jurors aforesaid, upon their oath aforesaid, do fur- ther present, that one Fran9ois Mainville, late of the said place, in the River Winepeg, Labourer, and the said Charles de Rein- hard, Archibald M'Lellan, Cuthbert Grant, Joseph Cadot and Jean Baptiste Desmarais, not having the fj^ar of God before their eyes, but being moved and seduced by the instigtetion oi the devil, on the said eleventh day of September, in the fifty sixth year aforesaid, with force and arms, at the said place in the River Winepeg, not comprised in any parish or county, but situated in tlie said Indian Territories or parts of America not within the limits of either of the Provinces of Upper or Lower Canada, or of any civil Government of the United States of America, and b^ing within the jurisdiction of this Court, in and upon the said Owen Keveny, in the peace of God and oi' our said Lord the King, then and there being, feloniously, wil- folly, and of their malice aforethought, did malce an assault, and that the said Francois Mainville a certain other gun, of the value of five shillings, then and there, charged andJpaded with gunpowder and a leaden bullet, which said last n^ntioned gun the said Franftns Mainville in both his hands then and there had and held to, against, and upon, the said Owen Keve- ny, then ai>d there, feloniously, wilfully, and of his malice afore* thought, did shoot off and discharge, and that the said Fffan9oi8 Mainville with the leaden bullet la:it aforesfud, ont pf the gun last aforesaid, then and there, by the force of the gunpowder last aforesaid by the said Fran9oi8 Mainville so shot off and discharged, as last aforesaid, the said Owen Keveny, in and upon the neck of him the said Owen Keveny, und^r the lei^ \ I •d tihe Mony t aforesaid to foresaid, upon de Reinhard, dot) and Jean hen and there, brm last aiore- rethought, did .ord Ihe King» resaid, do fur* ' the said place, IharlesdeRein- eph Cadot and of Qod before e instigfction ol ^r, in the fifty be said place ia rish or county, arts of America « of Upper or le United States )f thia Court, in of God and ofc feloniously, wil- take an assault, I other gun, of ^ged and. loaded idlastmfsntioned hands then and laid Owen J5:eve- * his malice afore* the said FKMa9«« out pf the gun the gunpowder so shot off and Keveny, in and (r, under the left m ear of him the said Owien Keveny, then and there, felomous]y« wilfuDy, and x)f his malice aforethought, did strike, penetrate, and wound, giving to the Si d Owen Keveny, then and there, with the leaden bullet last aforesaid, so as aforesaid, shot off and discharged out of the gun last aforesaid, by the said Fran- cois Mainville, in and upon the neck of him the said Owen Keveny, under the lefl ear of him the said Owen Keveny, one mortal wound of the depth of five inches, and of the breadth of one inch, of which said last mentioned mortal wound, the said Owen Keveny, then and there, instantly died, and that the said Charles de Reinhard, Archibald M'Lellan, Cuthbert Grant, Joseph Cadot, and Jean Baptist« Desmarais, feloniously, wil- fully, and of their malice aforethought, were then and there, present, aiding, helping, abetting, comforting, and maintaining, ^e said Franfois Mainville the felony and murder last afore* laid in manner and form last aforesaid to do, commit and per- petrate : and so the Jurors aforesaid, upon their oath aforesaid, do say, tliat the said Francois Mainville, Charles de Reinhard, Archibald MXellan, Cuthbert Grant, Joseph Cadot, and Jean Baptiste Desmarais, him the said Owen Keveny, then and there, within the jurisdiction aforesaid, in manner and form last afore- said, feloniously, wilfully, and of their malice aforethought, did kfll and murder, against the fteace of our said Lord the King, his Crown and Dignit3% And the «Turors aforesaid, upon their oath aforesaid, do fur- ther present, that the said Charles de Reinhard, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the said eleventh day of Sep- tember, in the fifty sixth year aforesaid, with force'and arms, at die said place in the River Winepeg, not comprised in any parish or county, but situated in the said Indian Territories, or parts of America not within the limits of either of the Provinces of Upper or Lower Canada, or of any civil government of the Umted States of America, and being within the jurisdiction of this Court, in and upon the said Owen Keveny, in the peace of God and of our Lord the King, then and there being, felonious- ly, wilfully and of his malice aforethought, did make an assault, and that the said Charles de Reinhard with a certain other 'I'll i I IM; :fiM • ■ m 16 11- 'i ■ I-*' Iff' # «word or sabre made of iron and steel of the value of five shil- lings, which he the said Charles de Reinhard in his right hand then and there had and held, him the said Owen Keveny, in and upon the back of him the said Owen Keveny, under the left shoulder-blade of him the said Owen Keveny, then and there feloniously, wilfully, and of his malice aforethought^ did strike, stab, thurst and penetrate, giving unto him the said Owen Keveny, then and there, with the sabre last aforesaid, in and upon the back of him the said Owen Keveny, under the left shoulder-blade of him the said Owen Keveny, two mortal wounds, each of the breadth of two inches and of the depth of six inches, of which said last mentioned mortal wounds he the said Owen Keveny, then and there, instantly died; and so the jurors aforesaid, upon their oath aforesaid, do say that the said Charles de Reinhard, him the said Owen Keveny, then and there, within the jurisdiction aforesaid, in manner and form last aforesaid, feloniously, wilfully, and of his malice afore- thought, did kill and murder, against the peace of our Lord the King His Crown and Dignity, and that the said Aichibald M*Lellan, Cuthbert Grant, Joseph Cadot, and Jean Baptiste Desmarais, before the felony and murder last aforesaid by the said Cnarles de Reinhard, in manner and form last aforesaid, done and committed, to wit, on the said eleventh day of Sep- tember, in the fifty sixth year aforesaid, with force and arms at the said place in the River Winepeg, not comprised in any parish or county, but situated in the said Indian Territories, or parts of America not within the limits of either et the Prov- inces of Upper or Lower Canada, or of any civil government of the United States of America, and being within the jurisdic- tion of this Court, did feloniously, wilfully, ana of their malice aforethought, incite, move, procure, counsel, stir up, and abet, the said Charles de Reinhard to do and commit the felony and murder last aforesaid, against the peace of our said Lord the King, his Crown and Dignity : and that after the felony and murder last aforesaid by the said Charles de Reinhard, in man- ner and form last aforesaid, done and committed, the said Ar- chibald MXellan, Cuthbert Grant, Joseph Cadot, and Jean , of five shU- right hand Keveny, in r, under the y, then and thought) did [lim the said , aforesaid, in ly, under the r, two mortal f the depth of vrounds he the id; and so the ly that the said eny, then and nner and form s malice afore- of our Lord the said Aichibald iJean Baptiste aforesaid by the 1 last aforesaid, nth day of Sep- >rce and arms at »mprised in any |dian Territories, iher et the Prov- ivil government ithin thejurisdic- la of their malice (tir up, and abet, lit the felony and t said Lord the |er the felony and .einhard, in man- ;ed, the said Ar- Cadot, and Je&n 17 Baptiste Desmarais, well knowing the said Charles dc Reinhard to have done and committed the felony and murder last afore* said, in manner and form last aforesaid, on the said eleventh day of September, in the fifty sixth year aforesaid, with force and arms at the said place in the river Winepeg, not comprised in any parish or county, but situated in the said Indian Terri- tories, or parts of America not within the limits of either of the Provinces of Upper or Lower-Canada, or of any civil govern* ment of the United States of America, and being within the jurisdiction of this Court, him, the said Charles de Reinhard, did Wilfully, and feloniously, receive, harbour, and maintain, against the peace of our Lord the King, his Crown and Dig* nity. And the jurors aforesaid, upon their oath aforesaid, do fur- ther present that the said Charles de Reinhard, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the said eleventh day of Sep- tember, in the fifty sixth year aforesaid, with force and arms, at the said place in the river Winepeg, not comprised in any parish or county, but situated in the Indian Territories or parts of America not within the limits of either of the Provinces of Upper or Lower Canada, or of any civil Government of the United States of America, and being within the jurisdiction of this Court, in and upon the said Owen Keveny, in the peace of God and of our said Lord the King then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault ; and that the said Charles de Reinhard, a certain other gun of the value of five shillings, then and there charged and loaded with gunpowder and a leaden buUet, which gun he the raid Charles de Reinhard in both his hands then and there had and held to, against, and upon, the said Owen Keveny, then and there feloniously, wilfully, and of his malice aforethought, did shoot off and discharge, and that the said Charles de Rein- hard with the leaden bullet last aforesaid, out of the gun last aforesaid then and there by force of the gunpowder last aforesaid by the said Charles de Reinhard so shot off and discharged as lait aforesaid, the said Owen Keveny, in and upon the neck of 18 t r i ui.' 'ifm 'life Ilim the said Owen Keveny, under the left ear of him the said Owen Keveny, then and there, feloniously, wilfully, and of his malice arorethought, did strike, penetrate, and wound, giving t6 the said Owen Keveny, then and there with the leaden bullet last aforeHaid, so as last aforesaid shot off and discharged ou^ of the gun last aforesaid by the said Charles de Reinhard, in and upon the neck of him the said Owen Keveny, under tlio left ear of him the said Owen Kevaiy, one mortal wound of the depth of five inches, and of the breadth of one inch, of which said last mentioned mortal wound the said Owen Keveny then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say that the said Charies de Reinhard, him the said Owen Keveny, then and there, within the jurisdiction aforesaid, in manner and form last aforesaid, feloniously, wil* fulfy and of his malice aforethought, did kill and murder ,again8t the peaqe of our said Lord the King his Crown and Dignity. And that the said Archibald M'Lellan, Cuthbert Grant, Joseph Cadot, and Jean Baptiste Desmarais, before the felony and murder last aforesaid by tlie said Charles de Reinhard, in man* nerand form last aforesaid, done and committed, to wit, on the said eleventh day of September in the £fty sixth year aforesaid, with force and arms^ at the said place in the river Winepeg, not (joraprised in any parish or county, but situated in the said In- dian Territories or parts of America not within the limits of either of the Provinces of Upper or Lower Canada> or of any civil government of t^e United States 6f America^ and being within the jtirisdictidn df this Court, did feloniously, wilfully, ahd of tlieir malice aforethought, incite, move, procure, counsel, stir up, and abet^ the said Charles de Reinhard to do and com- niit the said last mentioned felony and murder, in manner and form aforesaid^ against the peace of our said Lord tJie King, his Grown and Dignity. And that after the felony and mur- der laist aforesaid by the said Charles de Reinhard, in manner and form last aforesaid, dOne and committed* the said Archi- bald MXeilan, Cuthbert Grant, Joseph Cadot, and Jean Bap- tiste Desmarais, well knowing the said Charles de Remhard to have done aud committed tl^e said felony and murder last a&re* .™.. a. the ».a p^J^Z'liZ ^'^^'>' *'* *•-- -- "y parish or county, but ZZi T^^^' """ ™"'P"»'^d in "•es or parts of Ameri!" nT„ h •'" ?* ^'■'' '""'»» Terri.o. ProWnces of ,;pp„ ' Wc T'" . ' "■"'" "' '"'"^' «f *e »ent of the United StaJ. !f A ' "' "''"'^ ''''' S-erri- jurisdictionofthis Court hiithe^Sh""," '>' '"""" "'« wdfully. and feloniously, receive V»K "*'"'""''' '«'» the peace of „„r ,.id LordX Ki^! ."'"'r"' """""""• "«■""■"' Ad the jurors aforesaid, upo^'th 'T"""'' "^'S'-''^- further prc«!„t, that the said rh»^ . '""' ''*°'«*'"'' = do -efearof God before hreylh" k'- ""■■"■""' "<" "-% ced by the instigation „fh7^'''''' ''^'"g ""vedand sedu! of September, i„ the fiftyi''' ™ ">/ «"* «'-en.h day ."da^s. aUhe«„dp,acei be.ivrwfr"''"' ^'' '"^- ed m any parish or countv h..! . ,^^S, not compris- •ories, or par,, of An,er of nor^h '" *^ '""'- ^erri- tte Provinces of Upper or Lw r cl . ' ""''' •"" -">- ^ erament of the United States T' '""^'' <"• "f^y civil gov- jurisdiction of this Court, fa It"""'"^.'"^ "^'"8 ""h'" Ae » *e peace of G«, and of ou, JJ^ ""I f" «-» K-eny tee being, feloniously, wilfult a!^ i^""" ""^ ^"S *en and *> «ake an assault ; td It IhTsS ^f * f '«"""«'"• » certain other gun of th» . i „ "'*' ^« Reinhard, •^e charged and';i:?;j;':;f«- ""'""^^ ""» '» -'- *»»«. and that the «ud Ch^ks 1 B . t"' ""^ """ *- "»net last aforesaid, out of ,tl f "'*"'' '""* «*« leaden 'kere, by force of Ae ' 1 1/"" *"' '"■'"^■■''. '"en and Cl-^les de Reinhard If X:'" 'f '«'--''- by the s J *e «.id Owen Keveny fa 1'"' ^'f^"'' "» '«« aforesaid, "»™ Keveny. Adefhe iSeT^f V "f "' """ '*^«^'' ^^^y- ^^■■'k 20 'm ^■y ■■• f» 3 S'-'i" ■^ forethought, did strike, penetrate, and wound, giving to the said Owen Keveny, then and there, with the leaden bullet latt aforei^aid, ho as aforeiaid shot off and discharged out of the gun last aforesaid by the said Charles de Reinhard in and upon the neck of him the said Owen Keveny, under the left ear of him the said Owen Keveny, one mortal wound of the depth of five inches and of the breadth of one inch, and that the said Charles de lleinhard also with a certain other sword called a sabre made of iron and steel of the value of five shillings, which he the said Charles de Reinhard in his right hand then and there had and held, him the said Owen Keveny, in and upon the back of him the said Owen Keveny, under the left shoulder- blade of him the said Owen Keveny then and there feloniously, wilfully, and of his malice aforethought, did strike, stab, thrust, and penetrate, giving un^o him the said Owen Keveny, then and there, with the sabre last aforesaid, in and upon the back of him the said Owen Keveny two mortal wounds, each of the breadth of two inches and of the depth of six inches as well of which said mortal wounds so as aforesaid given by the said Charles de Reinhard to the said Owen Keveny with the leaden bullet last aforesaid in and upon the neck of the said Owen Keveny under the left ear of him the said Owen Keveny, as of the said mortal wounds so as aforesaid given by the said Charles de Reinhanl to the said Owen Keveny, with the sabre aforesaid, in and upon the back of him ths said Owen Keveny, under the left shoulder-blade of him the said Owen Keveny as last aforesaid, he the said Owen Keveny then and ther^ instantly died. And 80 the 'jurors aforesaid, upon their oath aforesaid, do say, that the said Charles de Reinhard, him the said Owen Keveny, then and there, within the jurisdsction aforesaid, in manner and form last aforesaid, feloniously, wilfully, and of his malice afore- thought, did kill and murder against the peace of our said Lord the King, his Crown and Dignity ; and that the said Archibald M* Lellan, Cuthbert Grant, Joseph Cadot, and Jean Baptiste Desmarais, before the felony and murder last aforesaid, by the said Charles de Reinhard, in manner and form last aforesaid, done and committed, to wit, on the said eleventh day of Sep- wing to the un buUct iMt at of the gun and upon the eft ear of him depth of five ^e said Charles pallid a sabre ngg, which he then and there and upon the e kft shoulder- ,ere feloniously, ke, Btab, thrust, eveny, then and pon the back of ,ds, each of the fix inches as well riven by the said I with the leaden ,f the said Owen en Keveny, as of ^ the said Chirles le sabre aforesaid, eveny, under the y as last aforesaid, ^tlydied. And .said, do say, that [wen Keveny, then in manner and If his malice afore- je of our said Lord I the said Archibald and Jean Baptiste ,t aforeswd, by the form last aforesaid, iventhdayofSep- temper, in the fifty sixth year aforesaid, with force and armt, at the said place in the river Winepeg, not comprised in any parish or county, but situated in the said Indian Territories or parts of America, not witliin the limits of either of the Provinces of Upper or Lower Canada, or of any civil govern- ment of the United States of America, and being within the ju- risdiction of this Court, did feloniously, wilfully, and of their malice aforethought, incite, move, procure, counsel, stir up, and abet, the said Charles de Reinhard t« do and commit tlie said last mentioned felony and murder, in manner and form aforesaid, against the peace of our said Lord the King, bis Crown and Dignity— and that, after the felony and mur- der last aforesaid by the said Charles de Reinhard in manner and form last aforesaid, done and committed, the said Archi- bald MXellan, Cuthbert Grant, Joseph Cadot, and Jean Bap- tiste Desmarais, well knowing the said Charles de Reinhard to have done and committed the felony and murder last afore- said, in manner and form last aforesaid, on the said eleventh day of September, in the fifty sixth year aforesaid, with force and arms, at the said place in the river Winepeg, not com- prised in any parish or county, but situated in the Indian Territories, or parts of America not within the limits of either of the Provinces of Upper or Lower Canada, or of any civil government of the United States of America, an(f being within the jurisdiction of this Court, him the said Charles de Reinhard did wilfully, and feloniously, receive, harbour, and maintain, against the peace of our said Lord the 'King, his Crown and Dignity. And the jurors aforesaid, upon their oath aforesaid, do fur- the present, that the said Francois Mainville and Charles de Reinhard, not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, on the said eleventh day of September, in the fifty sixth year aforesaid, with force and arms, at the said place in the river Winepeg, not comprised in any parish or county, but situated in the Indian Territories, or parts of America not within the limits of either of the Provinces of Upper or Lower Canada, d2 m 1:% S' I" V m of any ciTil government of the United States of America, and being within the juriidiction of thii Court, in and upon the said Owen K«veny, in the peace of God and of our said Lord the King, then and there being, feloniously, wilfully, and of their malice afc rethought, did make an assault ; and that the said Francois Mainville a certain other gun of the value of five shillings, then and there charged and loaded with gun- powder and a leaden bullet, which gun he the said Francois Mainville in both his hands then and there had and held to, a- gunst, and upon, the said Owen Keveny, then and there, felo- niously, wilfully, and of his malice aforethought, did shoot off and discharge, and that the said Francois Mainville with the leaden bullet last aforesaid, out of the gun last aforesaid, then and there b}' force of the gunpowder last aforesaid by the said Francois Mainville so shot off and discharged as last aforesaid, the said Owen Keveny, in tmd upon the neck of him the said Owen Kev- my, under the left ear of him the said Owen Keveny, then and there, feloniously, wilfully, and of hie; malice aforethought, did strike, penetrate and wound, giving to the said Owen Kev- eny, then and there, with the leaden bullet last aforesaid, so as aforesaid shot off and discharged out of the gun last aforesaid by the said Francois Mainville, in and upon the neck of him the said Owen Keveny, nnder the left ear of him the said Ow- en Keveny, dlie mortal wound of the deptli of five inches and of the breadth of one inch, of wliich this said last mentioned mortal wound he the said Owen Keveny then and there in- stantly died : And that the said Charles de Reinhard, feloni- ously, wilfully, im the said Ow- iive inches and last mentioned [en and there in- .einhard, feloni- |t, was then and Ing, comfoiting, the felony and aforesaid to do, aforesaid, upon /an^oisMainville JKeveny then and .sly, wilfully, and [rder, against the and Dignity.— And that the said Archibald MXellan, Cuthbert Grant, Jo- seph Cadot, and Jean Baptiste Desmarais, before the felony and murder last aforesaid b^ the said Francois Mainville and Charles de Reinhard, in manner and form last aforesaid, done and committed, to wit, on tlie said eleventh day of September, in the fifty sixth year aforesaid, with f«rce and arms, at the said place in the river Winepeg, not comprised in any parish or county, but situated in the said Indian Territories, or part£ of America not within the limits of either of the Provinces of Up- per or Lower Canada, or of any civil government of the United States of America, and being within the jurisdiction of this Court, did feloniously, wilfully and of their malice aforethought, bcite, move, procure, counsel, stir up, and abet, the said Fran- cois Mainville and Charles de Reinhard to do and commit the ■aid last mentioned felony and murder in manner and form afore- Mud, against the peace of our said Lord the King, his Crown, aad Dignity. And that after the felony and murder last afore- said, by the said Fran9ois Mainville and Charles de Reinhard in manner and form last aforesaid done and committed, the said Archibald M'Leilan, Cuthbert Grant, Joseph Cadot, and Jean Baptist.: Desmanus, well Icnowing the said Francois Mainville, and Charles de Reinhard to have done and committed the felo- ny and murder last aforesaid, on the said eleventh day of Sep« tember, in the fifty sixth year aforesaid, with force and arms, at the said place in the riv^? Winepeg, not comprised in anj parish or county, but situated in the said Indian Territories, or parts of America, not within the limits of either of the Pro- vinces of Upper or Lower Canada, or of any civil government of the United States of America, and being within the jurisdic- von of this court, them the said Franfois Mainville and Charles de Reinhard did wilfully, and feloniously, receive, harbour, and maintain, against the peace of our said Lord the King, his Crown and Dignity. i -'Hi %i^,'' ' mm -■>''?i^- *■* - Ho«4rxl*»H .'i -: ' < «4 •If ^it^ii' ?S- t (APPENDIX. D.) DSclaration et Cwrfession de Charles De Reinhard. MO I, gouBfiigr^, Charles De Reinhard, m'tftant rendu prison- nier a Capitaine D'Orsonnens au Lac la Pluie, le 2 d'Octobre, 1816, en coiiE^quence de difF(§rcntes circonstances arriv^es de- puis le terns de mon service dans la Compagnie du Nord-Ouest, et pour ce qui a rapport ft la mort de Mr. O. Keveney, fail ▼olontairement la declaration suivante : — Ayant fini mon terns de service comme Garde Drapeau dam le Rdgiment De Meuron, j ai tt6 recommandt- par Mr. le Lieu, tenant de Mesani, commandant de ma Compagnie, k Messieun W. M'Gillivray et M'Leod, pour Atre commis dans la Cora, pagnie du Nord-Ouest, et j'al obtenu ensuite mon cong^ du R6giment le 24 Avnl, 1816, par recommendation particuli^re faite k son Excellence le Gouvemeur Sir Gordon Drummond. Je me suis engag^ avec la plus liaute opinion que j'ai re^ue de Mr. Mesani pour servir avec tout b zdle possible une soci^t^ la plus honorable, et prot^gde par le Gouvernement, et j'ai ^t^ trds satisfait de partir pour le Nord en compagnie de Messieurs les Lieutenants Mesani et Brumby, qui avoient permission d'ab> sence du regiment pour six mois, sur la demande de la Com- pagnie du Nord-Ouest, pour rendre un compte impartial au Gouvernement de tout ce qui se passeroit dans ce pays. Durant le voyage, j'ai entendu parler plusieura fois d'une op- position, sans comprendre oA et comme elle ^toit, jusqu'ft ce que nous sommes arrives eu Lac la Pluie, oi^ Mr. Mesani m'infonna, comme Mr. M'Leod souhaitoit, que je misse mon habit militaire, ainsi que mon camarade Heurtre, Messieurs M'Gillivray, M'Leod et Mesani nous ayant recommand^ de les prendre avant le depart de Montrtfaly pour paroitre dans un Conseil des Sau* vages, qui eut lieu dans la chambre d'audience oil Messieun Mesani et Brumby pnt ^t^ introduits comme Capitaines, moi et Heurtre d leur cote comme gens du Roi. Mr. M'Leod dirigeoit le discours pour I'interprdte, et faisoit expliquer aux Sauvages, ce qui s'^toit pass^ ft la Rividre Rouge, oO Mr. Robertson avoit 1^ jt rendu prison. e^d'Octobre, ;e8 arriv6€*dc- duNoTd-OucBt, KKevcney, fa» ae Drapeau dani par Mr. le l-ieu- gnie, a Mewieun ,18 dans la Cora- te inon congfe du ^tion particuliire rdonDruininond, 3nqueyaire e de Messieurs les permission d'ab- lande de la Com- |ompte impartial au ins ce pays, .ieurs fois d'une op- 5toit,3U8quaceque . Mesanim'inf'*""** mon habit militaire, aieurs M'GilUvrayr deles prendre avaot |„n Cooseil des Sau- idience oil Messieort ,e Capitaines, moi et Vlr.M'Leoddirigeoit ,riquerauxSauvage8» Mr. Robertson ftvoit prii le fort comtne un voleur, les prisonnicrs maltraitds, ct aprds le pillage teut brdl^, et ce qu'on avoit ik craindre d'uutres vio- lences : en consequence le Gouvemment avoit envoys Messieurs les Officiers, pour voir que justice f(it rendue, ct Mr. MXeod invita les Sauvages de prendre parti avec la Compagnle du Nord- Quest, et de leur donner assiMtunce pour d< fendre leur droit ; sur quoi un chef des Sauvages et vingt-quatre de ses jeunes gens, aprds avoir re9u des presents et ammunition, sont partis le lende- main avec la brigade, la moitie dans leurs proprcs canots, et la moitie dans ceux de la brigade. Arrives au fort Bas de la Rividre, Mr. M'Leod fit ouvrir les caisses d'amnes, et armer les Canadiens ; on cmbarqua deux pidces de canons de m^tal, et la brigade monta jusqu'i la Rividra des Morts, pour y attendrc encore des canots d' Athabasca, qui sont arrives le lendemain. Le 22 Juin, la brigade est avancde dans la Rivi Ire des Morts, et rcncontra deux barges de colons, dont Mr. M'Leod visita toutes les cassettes, coffres, &c. et garda beaucoup de papiers ; il ne fit prisonnier que Mr. Pritchard, de qui les premiers details des ^vOnemens qui ont eu lieu, k la Ri- viere Rouge, furent obtenus. Ayant retrogad^ jusiqu'au campe- inent pr^ctfdent avec les colons, Mr. Bourke qui ^toit bless^, et trois autres scrviteurs de la C»mpagnie de la Baye d' Hudson, ont 6t6 faits prisonniers, et mis tous ensemble dans une tente, dont j'avois la surveillance; Le lendemain Mr. M'Leod et les autres propri^taires pr^sens, avec plusicurs commis, sont partis en canots alleges pour la Fourche, ainsi que Messieurs Me^ani et Brumby, qui aussitot aprds leur retour et celui des autres Messieurs de la Riviere des Morts, sont partis avec Mr. Hughes pour Fort William, pour apporter les nouvelles k Mr. Wm. M'Gillivray, et de \k se rendre d Montreal in[un6diatement. Apres que la brigade fut rassem- bl^e, on m'envoya avec les prisonniers au Bas de la Rividre, et la brigade se reudit au Grand Rapide, craignant que Mr. Ro« bertson n'interceptat les canots charg6s d' Athabasca, et Mes- sieurs M'Donell et M'Lellan sont arrives quatre ou cinq jpurj* apres moi, au Bas de la Riviere, avec quinze Bois-^rul^f^^.. trois canons, dont deux petits de metal ct un de fer, deux fusils de D ; .' E j i I 1 ' •' ' ii, ^,iM I n ; \i.> M «i':' kmm 96 rempart, et environ cinquante fusUs— mouaqoete— de Taiicien modele de I'arm^e.*— Au retour de la brigade du Grand Rapide les prisonniers ont ^t^ embarqu^s pour Fort WiHiam, et j'aire9a la direction sous le comniandenient de Mr. M'Lellan de mettre le fort en ^tat de defense, tant centre Mr. Robertson, qui a ^te suppose viiuloir prendre ce poste de provision, od il y avoit quatre ou c>nq cent sacs de p^mican, qu'a recevoir avec les ca- nons et quarante fusils en r^crve toujours chai^^, diaque ca* not de la Compagnie de la Baye d'Hudson qui tenteroit de pas- ser stet poste. Ayant appris, ^e le Milord Selkirk 6toit arriv^ au Sault avec grand nombre d'honimes, canons, &c. on redoubla de vigi. lance au Fort, M'Lellan faisant crmre k tout le monde, que le Milord ^toit leur plus grand ennemi, avDissant son caractdre de toute maniere.—- et repr^sentant le pamphlet de Mr. Strahan comme parlant de Milord avec trop de moderation, publiant Topinion de trois avocats pour prouver la nullit6 de la chartre, et repr6sentant Lord Selkirk comme agissant sans autorite et faisant des loix k sa fa^on ; — que le Gouvemement ('toit d€cide- ment en faveur de la Compagnie du Nord- Quest, puisqu'il avoit envoys deux officiers, pour voir que tout €toit en r^gle :— que tout ce que fait Lord Selkirk est sans la connaissance, ou I'a- i;r4inent du Gouvemement. Dans le commencement d' Aoiit on a apipris au Bas de la Ri- viere, qu'ii ^Loit arrive dans le lac du Bonnet une barge d'An- glois de la Baye d'Hudson avec pen de monde. Par les pre- iniers canots charges pour Athabasca il arriva un homme de cette bai:ge, qui dit, qu'il ne pouvoit plus rester avec Mr. Ke- ven> qui commande cette barj^e, et que ses camarades ^cbap- peroient aussi a la premiv re occassion. — Quelques jours apres quatre autres hommes de cette barge sont arri^^s avec d'autres canots pour Athabasdk. Deux ou trois jours apres Mr. M'Leod ^';ant arrivd du Fort William examina les hommes, dont un nomn:^ Flay a fait serment, que Mr. Keveny avoit crueUement maltrait^ Itti et ses camarades ; sur cela Mr. M*LiM>d donna un warrant ccmtre lui, et nomma moi, et un de ses propres hom- mes nomm^ C'astalo, comme conn^tables poor aller TarrSter au portage, o\i ses gens Tavoient abandonu^. Mr. MXellan or- 27 de Vancien and R9pide a de mettre OB, qui a ^t6 od il y avoit ■ avec les ca- (, chaque ca- iteroit de pas- su Sault avec tibia de vigi- monde, quele m caractdre de le Mr. Strahan •ation, publiant % de la chartre, gans autoritg et 5nt t'toit d«cid§- L pwsqu'il avoit en r^gle ;— que gissance, oul'a- au Bas de la Ri- une barge d' An- de. Parlespre- iin hommede ler avec Mr. Ke- ivades ^cbap- [ques jours apreB rtUs avec d'autre« Urea Mr. MXeo»i [bommea, dontuii I avoit cruellement [lyrLeod donna un ges piopres hom- : aUer rarrfeter au Mr. MXeUan or- donna six Bois-Brul^s avec moi pour assitance ; en arrivant sur les dix heures du matiui j'ai trouv€ Mr; Keveny dans sa tente, et je lui ai annonc^ ma mission, le faisant prisonnier au nom du Roi ; il fut tr^ surpris, il saisit ses pistolets pour se d^fendre, — Lui ayant repr^sent^ que son opposition a la loi seroit une , cause inevitable de sa mort immediate, ii resta tranquille et de- manda & voir le warrant par lequel il ^teit arr^t^. — L'ayant lu, il vint de nouveau furieux» et j'avois beaucoup de peine 4 em- p^cher les Bois Brul^ de le tuer. Mr. Keveny fut emmen^ prisonnier au Bas de la Riviere, j'ai laiss^ Tinterpn te Primeau pour avoir soin de ses propri^tes d^jk sous la charge de son com- mis, nomm^ Cowly, et son domestique, un Irlandois. Arrives au Fort avec le prisonnier, il eut une vive dispute avec M'LeU Ian, pr^tendant ne pomt etre sous la jurisdiction du Canada, ^tant sur le territore de la Compagnie de la Bayc d' Hudson, il prdtendoit £tre ind^pendant de la loi du Canada. Le lende- main vers les dix heures, il fut embarqu^ pour Fort William avec cinq Bois-BruleS, h qui Mr. M'Lellan remit des fers pour en faire usage en cas que le prisonnier fit resistance. J'ai en- suite appris des Bois-Brul^s, t|U'arrive au portage, le prisonnier se conduisit de maniere a les obliger de le garrotter, et lui met- tie les fersaux mains. Le commis de Mr. Keveny, (Cowly) etant abandonnd, se rendit au Fort, demanda a Mr. M'Lellan .le recevoir centre un re^u la barge avec la charge, et de lut accorder la liberty, et encore un homme pour retourner avec un petit canot au Fort Albany, d'o^ ils etoient venus. Le re9u a 6t6 delivrd pour quatre veaux, une alembique, une caisse d'ar- mes, des quarts de bceufs sales, farine, &c. &c. Au retour de Primeau au fort il d^livra des papiers de Mr. Keveny k Mr. MXellan, et il garda pour lui les habillemens qu'il ( Mr. Keve- ny,) avoit laiss^s en partant pour Fort William ; il fit en outre present k Mr. M'Lellan de livre, flacon k vln, chandeliers, lasses, et autres petits articles. Parmi les papiei;s il y avoit des instructions impriniecs d'Hud- son's Bay. J'ai appris que Mr. M'Doneil ayant rencontre le prisonnier et les cinq Bois- Bruits, rempla^a les cinq Bois- Brnl^s, par deux jeunes Canadiens, et un Sauvage comme gui- ^8 I flip dc pour conduire le prisonnier au Lac la Pluie. Messieurg Stuart et Thompson ayant rencontr^, trois ou quartre jours apr^s, ce canoty le firent retourqer. Les Canadiens et le Sauvage 8*6- tant disputes, ils se s^parerent, et les Canadiens, ignorant le ' chemin, n'ont plus pu suivre leur route, ont abandonnd le pri- sonnier dans une petite isle, et sont rest^s dans une autre isle pas loin de lui. Mr. Stuart ^tant arriv6 au Bas de la Rividrc avec la nouvelle que Fort William ^toit pris, M'Lellan I'envoya avec un canot all ge k Athabasca, pour avert^r Mr. M'Leod, et . un autre k la Rividre Rouge, pour avertir Mr. M'Donell, qui ar- riva au Bas de la Rividre, le 4 de Septembre, dans la nuit, avec les Bois-BruMs et des Sauvages. Pendant tout ce tems on at- tendoit Mr. Keveny, qui n'arrivoit point, et on conjecturoit ou que le Sauvage I'avoit tu6, ou que les Canadiens s'^toient tfgar^s, ou que le canot avoit fait naufrage. Le 5 de Septembre, Mr. M'Donell et M'Lellan ont assemble tout le monde au Bas dc la Rividre pour un conseil ; on reprdsenta dans une proclamation la prise du Fort William, et les dangers qu'on courroit en per- mettant a i'ennemi de p<^n6trer plus avant, et demanda, ceux qui voudroient se rendre volontairement au Lac la Pluie, de s'annoncer. La plupart ayant refuse et pr^fercj d6fendre leurn terres k la Riviere Rouge, Mr. M'Lellan a pris un canot allege avec Mr. Grant, Cadot, et moi, ses Bois- Bruits, et son domes- tique, un Canadien, dans I'intention de se rendre au Lac la Pluie pour apprendre des nouvelles, et en mcme terns chercher k ddcouvrir ce qu'^toit devenu Mr. Keveny. Pendant le voyage la conversation gdn6rale £toit que si on le trouvoit, il failoit le tuer, dtant un ennenii C^termin^ de la Compagnie, et qu'il poutrpit faire beaucoup de dommageiiJa Rivic^rc Rouge, si dans le tems il auroit occnsion de prendre vengeance. Aprcs quatre jours t»e marclie, le h'auvage s'cst trouv^ prrs d'unc petite ri- viere, quelques heures apr a on apper^ut les Canadiens, auxquels M'Lellan administroit beaucoup d'invectives, et plusieurs coups de perches, pour avoir hattu le Sauvage ct*aban(ionD^ le pri- sonnier. Les BoIs-Bru!^s ont insultd les Canadiens pour avoir emp5ch6 le Sauvage de tuer le prisonnier. qui, disoient-ils, au- roit du ctrc mis k mort au moment qu'il fut prip. Mr. M'LeU ,1' ^9 Messieurs jours apr^) ftuvage s'6- ignorant le Lonno le pri- le autre isle e la Riviere llan Venvoya . M'Leo^* et onett, quiar- i la nuit, avec •e tems on at« onjecturoit ou 5toient *gar^8. sptembre, Mr. leauBasdcla e proclamation jourroit en per- deinanda, ceux ac la Pl"»e, de : d6fendre leurs un canot alKge et son domes- ndre au Lac la e terns chercher indantle voyage voit, il fa^^oit le pagnie, et qu'il c Rouge, si danR Aprcs quatre d*unc pi'titcri- idiens, auxquels plusicurs coups janAonn^ le P'^'- .diens pour ovoit disoient-ils, au- Ian 8*£tant inform^, oik il pourroit trouvcr le prisonnler, il prit les Canadiens dans le canot, le Sauvage y ^tant d6j^, recouvert d'un manteau Ecossois, afin de n'6tre pas reconnu. Mr. MXel- lan en fut furieux en arvivant a I'isle oO le prisonnier avoit 6te abandonn^, sans le trouver, croyant qu'il s'etoit 6chapp^ du c6t6 ^e la Baye d'Hudson, et chercha chez tous les Sauvages, jusqu'^ ce qu'il le trouva par sa tente, qui ^toit prds d'une faraille de Sauva^es, k qui MXellan fit pr^ent de rum et tabac, et traita un petit canot pour faire embarquer le prisonnier avec moi et un Bols-Brui^, et le Sauvage, disant h moi, '* faites " croire au prisonnier qu'il doit descendi^ au Lac la Pluie. « Nous ne pouvons pas le tuer ici parmi les Sauvagos. Nous « vous attendrons plus loin, et quand vous trouverez un endroit (< favorable, vous savez ce que vous avez a faire."— ~Sur quei il partit. Environ trois quarts d'heures aprts que les femmes Sauvages eurent fini de gommer le petit canot, j'ai fait embar- quer le prisonnier avec tout son baggage,, a I'exception d'une valise et un portemanteau qui furent mis dans le canot de Mr. M'Lellan, et environ un quart de lieue de la la riviere faisant u'l r* 'de et Mr. Keveny ayant demand^ de mettre pied a terre pou . lesoins, j*ai dit d Mainville, (le Bois- Brule,) "nous " soiiifnes assez loin des Sauvages, tu peux tirer quand il sera " proche pour se rembarquer," le Sauvage tenoit le canot parde- vant, et moi j'etois aussi h terre. Quand Mr. Keveny approcha pour s'embarquer, Mainville lui lacha son coup de fusil, dont le contenu lui traversa le cou, et comme j'ai vu que le coup n'c- toit pas assez mottel, et que Mr. Keveny vouloit encore parler, etant tomb6 en avant sur le canot, je lui ai pass^ mon sabir par derricre le dos contre le cceur a deux reprises afin de termi- ner ses soufFrances. Etant bien mort, ils d^pouillerent le cadavre, et le portdrent dans le bois. M'^tant rendu au camp de Mr. I M'Lellan, qui, en voyant arriver Ic petit canot, il envoya Mr Grant et Cadot, pour me demander si Mr. Keveny etoit tud. Ayant repondu qu'owiVils m'informtrent que Mr. M'Lellan le» avoit envoy^s pour me donner la direction de dire qu'il n'est pas tu^, sur qu«i je leur dis, qu'il est tud, et que je ne le cacherois pas, puisqu'il etoit execute par ses ordres. Arrives au camp, / MXellan a demand^ les details du meurtre, que je lui ai don- nd, comme ci-dessus, et je lui ai remis sa tente, sod lit, et tout 1e bagage; il examina tous les papien pendant la nuit, bHilant les uns et gavdant les autres» et le itste il remit k ma discrd- tion : Tai distribud entre les Bois-Brul^s quelques habillements porti^s. Mr. Grant demanderent la tente, et Mr. Cadot diffi^r- entes articles, et je ooniptois degarder un coffre avec des habille- ments fins, pour ma part, mais tous fut laiss^ en cache pour le recour du Lac la Bluie. Nous arriv&mes le 13 St'ptembre au 8oir, ail Fort Lac la Pluie, oti trouvant que le fort n'^tait pas occup^ par le partite Lord Selkirk, Mr. MXellan proposa de se rendre au Fort William pour obtenir des intelligences, ce qui ayant ^t^ refus^ par les Bois-Brul^s, il me proposa d'y desceD- dre dans un petit canot avec deux ou trois Canadiens, mais Mr. Dease ayant sa famille au fort, demanda et obtint d'y aller a ma place. Mr. MXellan partit pour le Bas de la Rivi.re, le dix-sept, et moi j'dtois pour rester au Lac la Pluie jusqu'au re- tour de Mr. Dease ; le 2 Octobre de grand matin j'ai re9u une lettre du Capitaine D'Orsonnens, qui avoit appris par les Sau- vages, que j'^tois 1^ ; il m'avertbsoit de ne pas fuir de Tendroit, qu'il avoit absolument k me parler concemant les afiaires de la Kivierc Rouge, m'envoyant en m^me terns une copie de la pro' clamation du Gouternenient. Capitaine D'orsonnena ^tant ar« five sur les deux heures avec Mr. Dease, et m'ayant expliqud les circonstances des deux Conipagnies, et que ceux du NorJ- Guest, qui etoit a la Kividre Rouge seroit consid^re com- me rebelles au Gouvernement s'il persistoit dans leur condui- te, je fus des plus surpris de cette nouvelle, ct sourtout fremis d'horreur au crime afFreux, auquel ces Messieurs du Nord- Quest, m'avoient fait participer, peude jours auparavant sur la personne de Mr. Keveny. — Ayant cru jusqu a ce moment la m'^tre conform^ aux voeux du Gouvernement — sur quoi je me rendis prisonnier au Capitaine D'Orsonnens, et lui donnois tous les details ci dessus. Fort-WiUiaWt /e 28 Oetohre, 1816. (Signe) CHARLES DE REINHARD. Commis de la Campagnie du Nord'Ouest -^J .31 ^ goo lit) et tout la nuit, brftlant lit imadiscr^- oes habillements [r. Cadot difiKr- avecdeshabiUe- ea cache pour le 13 Soptembre au le fort n'^tait pas :.eUan proposa de telligences, cequi oposa d'y degcen- nadiens, mais Mr. obtint d'y aller a B de la Rivi re, le Pluie jusqu'au re- Matin j'ai re^u une appris par les Sau- as fuir de I'endroit, it les affiures de la Ine copie de la pro- irsonnena ^tant ar- m'ayant eUpliqu^ ]ue ceux du Noid- |it consid^re corn- dans leur condui- ct sourtout frerois messieurs du Nord- lurs auparavant sur squ'a ce moment la int— sur quoi je roe et lui donnois tous BiroRE Thomas, Earl of Selkirk, one of his Majesty's Jus- tices assigned to keep the peace in the Western District of Up- per Canada, and idso in the Indian Territories, or parts of America not within the Provinces of Upper or Lower Canada, appeared, Charles De Reinhard, charged with the crime of murder, who being examined, confessed that he had assisted in murdering Mr. Owen Keveny, and gave in the annexed statement, written with his own l^and, on the seven preceding pages and signed with his name, declaring that the same con- tained a true account of the transaction, and of the reason by which he was misled to participate in such a crime. (Signed) C REINHARD, dommis de la Compagnie du Nord 04est. Dedared before me at Fort William, en the Sd day of November, 1816. (Signed) SELKIRK, J. P. In presence of *\ J. Mathey, Capt. late •D. M. Regt. I Jcdin William Dease, V Witnesses. John Allan, Alex. Bridpord Becher^ '.Us '. ■ >E REINHARD. Ignie du Nord'Oued I ^^ji ft! If all that might ging, burnt the whole, and tliat, because there was reason to be apprehensive of other violences, government had, on that ac- count, sent those gentlemen, the officers, to see that justice waf done, and Mr. M'Leod invited the Indians to take part with the North West Company, and to render them assistance for the defence of their rights. Upon which one of the Indian chiefs, and twenty four of his young men, after having received presents and ammunition, took their departure the following day, with the brigade, half of them in tlieir own canoes, and half in those belonging to the brigade. On his arrival at Bas de la Riviere, Mr. MXcod caused the cases of arras to be opened, and armed the Canadians two brass pieces of cannon were embarked, and the brigade moved on to Deadman's River, in order to wait fur more canoes from Athabasca, which arrived the next day. On the 22d of June, the brigade proceeded along Deadman's River, and met with two barges with colonists, all whose boxes, trunks, &c. Mr. M'Leod examined, and kept a great many papers : he took no one prisoner but Mr. Pritchard, from whom the first accounts of the occurrences that had taken place at the Red River were obtained. Upon returning back to the preceding encampment with the colonists, Mr. Burke, who was wounded, and three other servants of the Hudson's Bay Company, were made prison- ers, and put altogether into a tent, the overseeing of which was committed to me. On the following day Mr. M'Leod and the other partners present, together with several clerks, took their departure in light canoes for the Forks, and in same manner, Messrs. Mesani and Brumby, immediately after their return and that of the other gentlemen from Deadman's River, departed with Mr. Hughes for Fort William to convey the news to Mr. M'Gillivray, and thence to repair forthwith to Montreal. After the brigade waa reassembled, I was sent with the prisoners to Bas de la Riviere, and the brigade went to the Grand Rapid, fearing that Mr. Robertson might intercept the Athabasca loaded canoes, and Messrs. Macdonell and M'Lellan arrived at Bas de la Riviere four or five days after I did, with fifteen Bois Brtdhy thre©- 'if 4 4 rT*: -• f ,: i i 34 i pieces of cannon, two of which were brass, and one iron, two wall pieces, and about iifly guns, musquets of the old army mod- el. On the return of the brigade ^rora the Grand Rapid, the prisoners were embarked for Fort William, and I received in- structions under the orders of Mr. MXellan to put the fort in a state of defence, as well against Mr. Robertson, who was sup- posed to have it in view to take possession of that provision post, where there were four or five hundred bags of pemican, as for the purpose of giving a reception with the cannon, and forty musquets in reserve, which were kept always loaded, to any ca- noe of the Hudson's Bay Company that might attempt to pass the post. Having learnt that My Lord Selkirk had arrived at the Saul^ with a great number of men, artillery, &c. double vigilance took place at the fort, M'Lellaa making all the people believe, that my Lord was their greatest enemy, degrading his character in every way, and representing Mr. Strahan's pamptilet as speaking of my Lord with too much moderation, publishing the opinion of three lawyers in order to prove the invalidity of the charter, and representing Lord Selkirk as acting without authority, and making laws according to his own good liking; that the govern- ment was decidedly in favour of the North West Company, since they had sent two officers to see that every thing was in order : that all that Lord Selkirk did was without the knowledge or the approbation of government. In the beginning of August, intelligence was received at Bas de la Riviere, that a barge or boat with a few men, £nglish, from Hudson's Bay, had arrived at Lake Du Bonnet. By the first loaded canoes from Athabasca, a man belonging to that barge, arrived, who said that he could not continue any longer with Mr. Keveny, who commanded that barge, and that his com- rades would equally desert the first opportunity. A few days afterwards, four other men belonging to that barge, arrived with other Athabasca canoes. Two or three days after, Mr. M'Leod having arrived from Fort William, examined these men, one of whom, of the name of Hay, made oath, that Mr. Keveny had cruelly ill-treated him and his comrades, upon which Mr. M'Leod S5 ie iron, two Idarmynttod- , Rapid, the received in- it the fort in who was 8up- jrovision post, mican, as for an. and t'oity ed, to any ca- tempt to pas* edatthe Saul^ J vigilance took e believe, that is character in hlet as speaking ng the opinion of the charter, |t authority, and that the govern- Company, since ig was in order ; lowledgeorthe , recdved at Bas men, English, Jonnet. By the elonging to that linue any longer (and that his com- \ty. A few days Irge, arrived with lfter,Mr.M'Leod [leaemen, one of Ir. Keveny had IhichMr.MXeod granted a warrant against him, and nominated me, and one of his own men of the name of Castalo, as constables, to go and arrest him at the portage where his people had abandoned him. Mr. M'Lellan ordered bix Bois Brules to accompany me to as- sist ; when' I came there, about ten o'clock in the morning', I found Mr. Keveny in his tent, and I apprised him of my mis- sion, making a prisoner of liim in the Ki^j's name ; he was much surprised, and seized hold of his pistols to defend himself. Having represented to him that his immediate death would be tlie inevitable consequence of his opposition to the law, he be- came quiet and required to see the warrant upon which he was arrested. Having read it, he again became outrageous, and it was with difficulty I prevented the Bois Brules from dispatch- ing him. Mr. Keveny was conveyed as a prisoner to Bas de la Riviere, I left Primeau, the interpreter, to take care of his property which was already under the charge of his clerk, nam- ed Cowly, and his servant, an irishman. Having arrived at the fort with the prisoner, he had a violent altercation with M'Lellan, pretending not to be under the jurisdiction of Cana- da, being upon the Hudson's Bay Company's territory, he pre* tended to be independent of the law of Canada. On the follow- ing day, about ten o'clock, he was embarked for Fort William, in company with five Bois BrulcSy to whom Mr. M'Lellan gave irons in order to make use of them in case the prisoner should resist. I was afterwards informed by the Bois Brules^ that when they came to the portage, the prisoner behaved in such a way as to force them to bind him and tq handcuff him. Mr. Keveny 's clerk (Cowly) being Icfl by himself came to the fort, and requested Mr. M'Lellan to receive against an acknowledg- ment, the barge with its loading, and to grant hun his liberty, together with one man to return in a small canoe to Albany Fort, whence they came. An acknowledgment was given for four calves, a still, a cose of arms, quarters of salted beef, flour, &c. &c. On Primeau's return to the fort he delivered Mr. Keveny 's papers to Mr. MXellan, and he kept for himself riie clothes which he (Mr. Keveny) had lett on going away for Fort William ; he besides made presents to Mr. M'Lellai^ of a . « ,4, . m 36 f ^IMB''! '?ifl :^ M, feu ?• 1 ag^BS i- ■^K'lB^Mrai If.,', sjp^^9 *5 Si^ffl ■yj^^^^wl »!*' vS'^i^^s '^ BM^ffiB^^ Uf Pf-. ^n^i^^^^XEfl f I'l^^^^I ^;v ■1 i ll^:,^ 1 f '^ ■ ■ v^'» ■ >'■ ' , pVlv^' 1 1 ^■i.r.r'-> fi book, a cane wine buttle, cundleaticks, tea cups, and other Bmall articles. Among.>t the piipern there ivere printed instructions from Hudson's Bay. I was infiirmcd that Mr. Macdonell, having met the prisoner and the five Bns BrtdSs, replaced the five Bois Brides, by two young Canadians and an Indian as j?uide, to convey the prisoner to lake La Pluie. Messrs. Stuart and Thomson, having, three or four days afterwards, met this canoe, caused it to turn back. The Canadians and the Indians liaving quarrelled, they separated, and the Canadians, being ignorant of the way, were no longer able t") pursue their route, abandon- ed the prisoner in a small island, and stopped themselves at an- other island not far from him. Mr. Stuart having arrived at Bas de la Riviere riith the news of the taking of Fort William, Mr. M'Lellan dispatched a light canoe for Athabasca to apprige Mr. McLeod, and another to Red River to apprise Mr. Mac- donell, who arrived at Bas de la Riviere on the 4fth of Septem- ber, in the night, with the Bois Brules, and Indians. All this time Mr. Keveny was expected, who did not arrive, and con- jectures were formed either that the Indian had killed him, or that the Canadians had lost their way, or tt>at the canoe had been lost. On the 5th of September Mr. Macdonell, and Mr. M'Lellan convoked all the people at Bas de la Riviere to hold a council ; the capture of Fort William was stated in a procla- mation, and the danger represented which would be incurred by allowing the enemy to penetrate farther ; and those who chose to volunteer their services to go to lake La Pluie were de- sired to declare themselves. The greatest number having re- fused and preferring to defend their lands at Red River, Mr. M'Lellan took a light canoe with Mr. Grant, Cadot, and me, his Bms Brules^ and his servant, a Canadian, with the inten- tion of proceeding to lake La Pluie in order to obtain intelli- gence?, and at the same time to endeavour to discover what had became of Mr. Keveny. On the voyage the general tenor of the conversation was, that if he was found, he ought to be dis- patched, as being a determined enemy of the Company, and ca- pable of doing much harm at Red River, if after a while he 37 and other ctions from neU, having the five Bow 19 j^uide, to Stuart and ,et this cantw, ndians having )eii»g ignorant ,ute, abandon, imseives at an- ing arrived at Tort William, >asca to apprige priae Mr. Mac- 4th of Septem- dians. All this arrive, and con- 4 killed hiro, or the canoe had jdonell, and Mr. Riviere to hold ited in a procla- luldbe incuned and those who ,a Pluie were de- imber having re- Red River, Mr. Cadot, and mc, vrith the inten- to obtain intelli- iiacover what had general tenor of , ought to be di8- lompany, and ca- after a while he should have the opportunity of taking revenge. After four days roareh, the Indian was found near a small river, a ie«r hours afterwards the Canadians were perceived, upon whom M'Lellan bestowed much abuse, and a good many blows with » canoe pole, for having beaten the Indian, and abandoned the prisaner. The Bois Bruits abused the Canadians for having prevented the Indian from killing the prisoner, who said he ought to be put to death the moment he was taken. Mr. M'- Lellan having enquired where he might meet with the prisoner, took the Canadians in his canoe, the Indian being there u'ready, covered over with a Scotch cloak, that he might not be recog> nized. Mr. M'Lellan became enraged when he came to the island where the prisoner had been left and he did not find him, believing that he had escaped towards Hudson's Ray, and he searched amongst all tlie Indians, until he found him out by his tent, which was pitched near an Indian family, to whom M'- Lellan made a present cf rum and tobacco, and traded a small canoe, in order to embark the prisoner with me, and a Bois Bruit: and the Indian, saying to me, ** Make the jirisoner be- " Ueve that he is going to lake La Pluie. We can not kill him " here amongst the Indians. We will wait for you farther on, " and when you come to a suitable place you know what you " have got to do." Upon which he went away. About three quarters of an hour afterwards, when the Indian women had finished gumming the small canoe, I caused the prisoner to em- bark with all his baggage, with the exception of a trunk and a portmanteau which were put into Mr. M'Lellan's canoe, and about a quarter of a league from there, where the river makes an elbow, and Mr. Kcveny having asked to go on shore for h\» necessities, I said to Maiuviile (the Bois Brule J " We are " far enough from the Indians, you may fire when he comet " near enough to embark," the Indian held the canoe fast by the bow, and I was also on shore. Upon Mr. Keveny's ap- proaching, in order to embark, Mainville fired his gun at him, the contents of which went through his neck, and as I saw tliat the wound was not mortal enough, and that Mr. Keveny still attempted to speak, having fallen forwards upon tlic bdat, I run I :t' ■5 4 .. iAm m v:;?-i.i' t! I'M ]%v. 98 wty iword h«hind hi« back through hia heart In two thruiti, in iKdur to put hiia out ofhiM puin. Ueing quite deud, they itrip. ped th;; i>ody, and carried it into tiie wood. Having got to iMr. M'Lelluii'ti camp, who, whf n he mw the fuiail cunoe ar- iiTe, he sent Mr. Grant and ('adot, to u»k me whether Mr. kevuny was killed. Having replied in the aifirmative, they told mo that Mr. M'LcUan had sent theni to give me orders not to say ho wuh killed, upon which I said, that he wait killed, and that i would not conceal it, as it liad lieen done by hU orders. NMicMi w'C came to tlie camp M'Lellan required to know the detail* of the murder, which I gave him as above, and I gave up to Iiim IiIk tent, bis bed, and all the baggage. During the night he examined all the papers, burning some and keeping others, and the rest he \el\ to my discretion : I distributed amongst tlie Dots Jirulh some clothes t)iat had been worn. Mr. Grant otikcd for the tent, and Mr. Cadot for sundry arti- cles, and 1 reckoned upon keeping a box with good clothes for my share, but the whole was left concealed, (en caches J till we should corae back from lake la Pluie. On the 13th of Septeni* ber in the evening wc arrived at Fort lake La IMuie, wkere, finding that the fort was not in the occupation of Lord Selkirk's party, Mr. M'Lellan proposed to proceed on to Turt \V illiam to procure intelligence, but the Bois Bruics having refused to do hO, he proposed to me to go down in a small canoe, with two or three Canadians, but Mr. Dease, having his family at the forty asked and obtained leave to go in my stead. Mr. M'Lellan took his departure for Bas de la Riviere on the seveu« teentb, and I was to remain at lake La Pluie, till Mr. Dease's return ; on the 2d of Octobt r, very early in the morning, 1 re* ceived a letter from Captain D'Orsonnens, who had learnt from tlie Indians that I was there ; he admonished me not to fly from the place, that he positively must have some conversation with luc about the Red River affairs, sending me at the same time a copy of the Governor's proclamation. Captain D'Orsonnens having arrived about two o'clock, with Mr. Dease, and having explained to nie the situation of the two companies, and that those who belonged to the North-West who were at the Ked ro thfUiU, in A, they utvip- luviug g»>t to tall cttnou ar- vhether Mr. r^native, they 5 me orders not ffO* killed, and , by hi» orders. \ to know the >ve, and 1 gave ;e. During the le and keeping , . 1 distributed had been worn. for sundry arti- good clothes for en cache J till we ( I3tb of Septeni- La I'luie, wkete, of Lord Selkirk's to I'ort William ■aving refuged to small canoe, wilh ing his fiu">ly »t my stead. Mr. iere on the seveu- lill Mr. Dease* he morning, 1 re- 10 had learnt from je not to liy from conversation with it the same time a Itain D'Orsonnens lease, and having [mpanies, and that were at the Ueil 50 River, would be considered as rebuls by govcmmcnr, if thcr persisted in their conduct. T htub much surpri«ed at this intoU ligence, and above all I uliuddered with horror at the dreadful crime in which those gentlemen of the North West had enufied me to participate, a few days before^ upon the person of Mr. Keveny — haviug till that moment conceived that I liad l)eon acting in conformity witli the wiKhes of government — >V here- upon I gave myself up as n prisoner to C'nptaia D'OrKonnens, and gave him all the above mentioned details. (Signed) C. UG UEINHARD, Clerk jofthr North JVrst Company. Fort'WilHam^ ihc'mh October, I8U;. ti \n M ^- ! I , pn 40 (APPENDIX E.) BY HIS ROYAL HIGHNESS THE PllIflCE OF WALES, fteaRHT of the United Kingdom of Great-Britain and Ireland, in the name and on the behalf of His Majesty, A PROCLAMATION. J. C. SHERBROOKE, Whereas by an Act of the Parliament of the United Kingdom of Great-Britain and Ireland, passed in the forty' tliird year of His Majesty's reign, intituled " An Act for ex. " tending the jurisdiction of the Courts of Justice m the Prov- *' inces of Lower and Upper Canada to the trial and punishment ** of persons guilty of crimes and offences within certain parts " of North* America adjoining tc the said provinces," it is, *' amongst other things, enacted, that all offences committed *' within any of the Indian Territories or parts of America not " within the limits of either of the said I'rovinces, or of any *' civil government of the United States of America, shall be, ** and be deemed to be, offences of the same nature, and shall ** be tried in the same manner, and be subject to the same pu- " nishmcnt, as if the same had been committed within the said ** Provinces of Lower or Upper Canada." And whereas, by the said Act it is a\»o enacted, *' that it shall be lawful for the Gov- " ernnr, or Lieutenant Governor, or person administering the ** govtrnment for the time being of the Province of Lower *' Canada, by commission, under his hand and seal, to author* *' ize and empower, any person or persons wheresoever resident *' or being :it the time, to act as civil magistrates and justices " of the peace, for any of the Indian Territories or parts of *' AnKiIca not within the limits of either of the said Provinces, '• or of any civil government of the United States of America, *" its wt'U '.IS within the limits of cither of the suid Provinces, " either upun iiilorniatitrnK t;)Ivi>n or given within the .said Prov* *' iiuos of I.owor or Uppor Canada, or out of the said Provinces ''in :in\ pirt*; oi" tlui Indian Territorits. or parts of America w m and Ireland, of the United in the forty, ^n Act for ex- ;e in the Prov- ind punishment n certain parts ovinces, it >8» nces committed of America not inces, or of any merica, shall be, nature, and shall to the same pu- 1 within the said I whereas, by the (vful for the Gov- idministering the >vince of Lower seal, to author- •esoever resident ates and justices lories or parts of le said Provinces, ;ates of America, ,e suid Provinces, r»n the said Prov- ihe said Provinces Lrt« of America 41 •• af<»resuid, for the purpose only of )iearingt:rimcs and offences, '< atid curamitting any person or persons guilty of any crime or " offbiice to safe custody, in order to his or their being convey- " ed to the suid Pro\rince of Lower Canada, to be dealt with " according to law,", and " that it shall be lawful for any per* ** son or persons wimtever to apprehend and take before any '' persons so commissioned, >»j aibresaid, or to apprehend and ** convey, ur cause to be safely conveyed, with all convenient ** speed, to the Province of Lower Canada^ any persbn or per- " sons guilty of any crime or offence, there to be delivered into <( safe custody, for the purpose of being dealt with according ** to law t" And whereas, by the said act it is also further en- acted, ** that every such offender may, and shall, be prosecut- <* ed and tried in His Majesty's Courts of the Pruvince of Low- " er Canada, in which crimen and offences of the like nature ** are usually tried, and where the same would have been tried ** if such crime or offbnce had been committed within the limits ^' of the Province where the same shall be tried under the said " Act ; that every offender tried and convicted under the said " Act, shall be liable and subject to such punishment as may, **by any lev in force in the Province where he or she shall be ** tried, be inflicted for such crime or offence, and that such ^' Court may and' shall proceed to trial, judgment, and execu- '* tien, or other punishment, for such crime or offence in the " same manner in every resp;!ct as if such crime or offence had " been really committed within the jurisdiction of such Court, "and to proceed also in the tti'A of any person, being a sub- '• ject of His Majesty, who shall ^e charged with any offence, " notwithstanding such offence shall appear to have been com- '' mitted wkhin tlie limits of any colony, settlement, or territo- " ry, belonging to any European state." And, whereas divere breaches of the peace and acts of force and violence have late- ly been committed within the said Indian Territories and parts of America mentioned and described in the said Act of Parlia- ment, which have arisen from contentions between certain mer- '^liants carrying on trade ard commerce in the said Indian Ter- ntoties, under tlie names of the Hudson's Dny Company, and the F "m^ i /-'-I 42 Hf ■>»..!- 'Ill North We*t Company respectively, and other persons, their wr. vants, agents, or adherents, of whom some have entered into, and seized, and occupied by force, and with strong hand, lands or possessions therein, taking and by force retaining, di^ vers goods, wares, merchandize, and other property, and ob- structing the passage* of navigable rivers, and other natural posses of the country, and others have met together in unlaw- ful assemblies, formed divers conspiracies, and confederacies, committed murders, riots, routs, and affrays, and appeared, gone, and ridden, in corapaniea in military array, with armed force, and have rescued themselves and others from lawful ar- rest and custody ; We do, therefore, in the name and on the behalf of His Majesty, publish this praclamation, hereby call- ing upon the said merchants, so as aforesaid carrying on trade aikd commerce, in the said Indian Territories under the names of .the Hudson's Bay Cempany and the North West Company, respectively, and upon each and every of them, and upon ail other persons, their servants, agents, or adherents, and each and every oi them, to desist from every hostile aggression or attack whatsoever, and in order to prevent the further employ- ment of an unauthorized military force, We do hereby require all persons who have been heretufore engaged in His Majesty Is service as officers or soldiers> and a» such have enlisted and engaged in the service of the said Hudson's Hay Company, or North West Company, or either of them, or of any of theiir servants, agents, or adherents, to leave the service in which they may be so engaged, witliin twenty-four hours after their knowledge of this Proclamation, under penalty of incurring our most severe displeasure, and forfeiting every privilege to which their fonnor employment in His Majesty's service would other- M'ise have entitled them. And we do, under similar penalties, hereby require of all and (^very person und persons whomsoever, whom it doth, or sliall, or may, in any wise concern, the re- stitution of all foits, buildings, or trading stations, with the pro- perty which they contain, which niny liave been seized or tak- en possession off by either party, to the party who originaliy established or constructed the same, and were possessed there- 4$ oiis, their ier- entcred into, strong hand, retaining, di- jerty, and ob- other natural ther in unlaw- confedemcics, and appeared, ly, with armed from lawful ar- une and on the on, hereby call- irrying* on trade under the names West Company, ;ro, and upon all erents, and each tile aggression or e further employ- do hereby require in His Majesty's kave enlisted and kay Company, or of any of their service in which hours after their Ity of incurring our privilege to whicb irvice would other- ir similar penalties, sons whomsoever, concern, the re- |tions, with the pro- |)een seized or tak- irty who originally re possessed there- of previous to the recent disputes between the aforesaid compa- nies; and we do hereby reqoire, in Hke manner, of every per- son and persons whomsoever whon* it dotli, or shall, or may, in any way ooncem, the removal of any blockade or impediment, by which any party, person, or persons, may have attempted to prevent or in'c»:i'pt the free passage of traders or otiiers of His Majesty's subjects, or of the natives of the said Indian Territories, with their merchandize, furs, provisions, and other effects, throughout the lakes, rivers, loads, and every other route or communication heretofore used for the purposes of the fur trade in the interior of North America, and full and free permission for all persons to pursue their usual and accus> tomed trade without hindrance or molestation, hereby declaring that nothing done in consequence of this Proclamation shall, iu iny degree, be considered to affect the rights which may ulti- mately be adjudge^ to belong to either or any party, upon a ftill consideration of all the circumstances of their several claims. And whereas, for the purpose of restraining all offences in the Mud Indian Territories, and of bringing to condign punishment die perpetrators of all offences there committed, His Excellen- cy Sir John Coape Sherbrooke, Knight Grand Cross of the most honourable military order of the Batli, His Majesty's Cap- tun General and Governor in Chief, in and over the Provinces of Lower and Upper Canada, Nova Scotia, New Brunswick, and their several dependencies. Lieutenant Geueral and Com- mander of all His Majesty's Forces in the said Provinces, &«. &c. &c. by and with the advics of His Majesty's Executive Council of and for the said Province of Lower Canada, hath nominated, constituted, and authorized, the honourable Wil- liam Bachelor Coltman, one of the members of the said coun- cil, a Lieutenant Colonel in His Majesty's Indian Department, and one of His Majesty's justices of the peace for tlie Western district of the said Province of Upper Canada, and John Fletch- er, Esq. Barrister at Law, one of the principal poUce-nwgis- trates, and Chairman of His Majesty's Court of Quarter Set- lions for the district of Quebec, a Major in the said department uod one of His Majestv's justices of the peace for the said Wesi^ f: .ii% '(i 1'^^ . >;i \ #1 E;-1 1 i|f^.| r ^- , M j| ■ 1 1 Wr i?i m WMwmm Kif' M rw3i\ -ft : .^iW mmmmm ^'t' F i '"SSris .1(R > ^Vfii B3.^ % !■ 11^3 ;:i^ 1 ii P ■flip Wi^ ■'ifi 3^'* k" wE''* . m #r n W' B*.^* J f 'U P'" ,% -i; !^t'^ Bmv 5lllfd K'^ ^j'-ipi p[ [fm i''.£i,ft j Ik'' > ■K'ipr'^ K'' |-|^^ m>'^- ^K W W-^^m^ H^^' SM^K] MVi^ B'fl^sB^ S«t ' • Mia ^ m. rm ¥4 mi -ifl . K1f)iii<«U3r-i KK\i '•- IBi^B^ w'' K«^^ m'- rH By fflffiBKin^ BB? 4 |5!p ^^ H^-' i>j i-;"l< Bi^ r w 4i era district of Upp6r Canada, to act at civil nwgistrates and justices of the peace for the said Indian Territories, and parts of America aforesaid, as well without as within the said Pro- vinces of Lower and Upper Canada, under and by virtue of the •aid Act,, and also His Majesty's special comAiissioners, for enquiring into, and investigating, all offences committed in the •aid Indian Territories, and the circumstances attending the same, with power ^nd authority for such purposes. And whereas, the said William Bachelor Coltman, and John Fletch- er, are immediately about to proceed to the said Indian Ter. ritories, in execution of the trust so reposed in theai. We do, tiierefore, hereby strictly charge and command, in the name 9nd on the behalf of His Majesty, all sherifib, bailiff, constables, and other officers of the peace, and all others His Majesty's offi- cers, servants, and subjects, civil and military, generally Iq their several and respective stations, to make diligent enquiry and search, to discover and apprehend all persons who have been, or shall be, guilty of any such crimes or offences as a- foresaid, or any other crimes or offences whatsoever, within the Indian TerriUuries, or parts of America in the said act rocntion« ed and described, whether without or within the said Pro* vinces of Upper or Lower Canada, axid to cause them to be carried before the said William Bachelor Ci>l (man and John fletchcr, or one of them, or such other magistrates as may hereafter be appointed for the like purposes, or otherwise be invested with competent jurisdiction in that behalf, to be deajt with according to Law, and by all lawful means and ways whatsopver, to repress and discourage all such crimes and of- fences, requiring and directing them and each of them, as well within the said Indian Territories, or parts of America, as else- where, to be aiding and assisting to the said William Bachelor Coltman and John Fletcher, in the execution of the duties wherewith they are charged as such magistrates and special commissioners as aforesaid, in all their endeavours for the re- pression and discouragement of all such crimes and offences wheresoever, or by whomsoever perpetrated or committed, for the detection and apprehension of all such persons as have been, « ristrates an(i ;g, and parU le taid Pro- virtue of the tissioners, for imitted in the attending the puses. And i John Fletch- id Indian Ter- hew. Wedo» , in the name a Majesty's offi- ^, generally in diligent enquiry rsons vho have jr offences as a- foever, within the aid act mention, in the said Pio- iuse them to be Itman 6x4 Jo^^ rjstrates as may or otherwise he •half, to be dealt leans and ways [h crimes and of- ofthem, as well .,roerica, as else- I^Villiam Bacliclor jn of the duties [ates and special ours for there- ies and offences committed, for Ions as have been, or hereafter shall be, concerned orimphcated in the perpetration thereof and for tlie maintenance and preservation of the peacQ and of the laws. In faith and testimony whereof, we, by our express com- mand, in the name and on the behalf pf His Majesty, have caused the great Seal of the Province of Lower Canada to be hereunto affixed. Witness our trusty and well beloved. Sir John Coape Sherbrooke, Knight Grand Cross of the most hon- ourable military order of the Bath, Captain General and Gov- ernor in Chief of the said provinces of Lower and Uf^er Cana- da, Nova 3cptia and New Brunswick, Lieutenant General and Commander of all His Majesty's forces in the said Provinces, ffc. &c, at the Castle of Saint Lewis, iA the City of Quebec, in the said Province of Lo#er Canada, this third day of May, in the year of our Lord Christ, one thousand eight hundred and seventeen, and in the fifty seventh year of His Majesty's reign. u. C o« Bi/ His Excellencies command JOHN TAYLOR, Deptif, Seclif.. H 1 m :''k t ' 4« -•k' APPENDIX E. Captain Fredbkiok Matthet, Dear Sin, William* is this moment expediting Charrith, and Mo- rache. Rein hard refuses to come to Mr. Murphy's chambers. He says, neither his Lordship or you said any to him on that ar- rangement ; that he is comfortable where he if and that his de- termination is to perform the promises made to Earl Selkirk and to you. Be so good as give Mr. Bonrke a hint that when he requests any thing his lists may be correet and signed by himself or Mr. Bepber, as they will be kept for his Lordship's inspection. The ice is again driven to our shore in a very narrow line, the bay will soon be clear. I am, Yours very sincerely, (Signed) JOHN McNAB. f- [endorsed] Letter from Mr. John McNab to Capt. Frederick Matthey regarding Reinhard. Maylbll. Filed and read 28th May. (Signed) J. B. • The mutilated state in which McNah's letter now is, tnm its liaving been torn and pasted together Again, nuA^ it uncertain vrhether the name iii WiUiam or Willan. 3*"< t;. «? Il ihy's chambers, him on that ar- ind that his de- to Earl Selkirk hint that when nnd signed by rhis Lordship'i ihore in a very ely, iHN McNAB. jdcrick Matthey J. E. APPENDIX F. 1.ES circonstances alannantes oCk sc trouve dans ce moment ie poste de la Lac la Pluie a forc6 le Capt. P. D'Orsonnens de s emparer des armes et munitions du Fort occupy par la com- pagnie du Nord Quest, pour la surety des sujets de sa Majesty qui se trouvent dansTendroit* Cette mesure indispensable pour la tranquillity du public dtante a Mr. J. Dease, chef du poste, lesmoyens de traitor avec les Sauvages qui pourroient faire un mauvais usage des armes et munitions qu'ils recevroienfe. En outre le Capt. P. D'Or»onnens pouvant assurer sur sa parole d'honneur qu'il attend ik chaque instant un ordre rcgulier, conformement k la loi, pour le deguerissement du Fort occupy par la compagnie du Nord Quest : le Capt. P. D'Orsonnens et Mr. J. Dease, commis en chef do la compagnie du Nord Quest att Lac la Pluie, ont jug^ convenable pour la sureti de chaque in- dividu interess^ dans les circonstances actuelles de prendre un. Inventaire de tons les Eflfets appartenans & la compagiflte du Nord Quest dans Tendroit, en y incliiant les caches de provisions qui seront annonc^e jusqu*i la fin de Tann^e, pour que le toilt toit fidelement remis aux commis de la compagnie d'HudsoU qui sont presens dans I'endroit : cette compagnie rendra uifi . compte exact selon la loi, de tous les objects qui auront 4t4 re- mis i leurs commis par ceux de la compagnie du Nord Quest— le Capt. P. D'Qtsonnens se rendant caution de Texecution de ect arrangement. P. J. D'QRSQNNENS, Contt, le Poste du Lac la Pluie, JQHN W. DEASE, Commis en chef pour Nord OuesU jVuHi its having been ■ (Sd.> hether th« oamc '» ■ c 1 (Sd) 1 TEMOINS, 1 Jacques Chastellain, 1 Ctmmis pour la comp, d' Hudson, 1 Louis Nolik, 1 Commit compagnie d' Hudson. tM 4» !'•:*' t '( 1. TRANSLATION. THE alarming circumatanCei tinder which the post of Lake La PJuie is, at this nioment, placed, have compelled Capt. P. D'Oraonnens to seise the arms afid aitimunitiofi of thte fdrt oc- cupied by the North W^st Company, for th6 Mf^ty of his Ma- jesty's subjects who ar6 on ttie spot ; this meaiure, indispetosu* ble for the tranquility of th6 public^ depriving Mr. J. Dcoae, chief df the post, of the means of tradii^g with the Indians, who might ntake a bad use of the arms and ammunition they might receive. Besides,* Capt* P. D'Orsonnens, hating it in his power, toagi lure upon his word of honour, that he is ettery ihtihent in ex- pectation bf a regular order, cidiiformable to IikW, for the quit- ting of the fort occupied by the ICorth W(!«t Company, Capt. P* D'Orsonnens add Mr. J. Deiis^, thief cl^rlt of thd North IVest Coitipany hi the Lake Ld Pttiie, haVe deemed h ejcpcdi- etit for the security of every iuditidliai involved in the presctit circiupstanceii, to take an inventory of all the effects belonging to the North West Company ih the place, iiidudirtg the Caches ofprovishiis* which may be announced until the end of the year, in orckr that the whole may be faithfully delivered up to the clerics of the Hudson's Bay Company, who sire present on the spot : tii^t Company will render an exact accoctnt, according to law, of all the matters which will have been delivered to their clerks by those of the North West CompiUiy, Capt. P. D'Orson- nens rendering himself responsible for the execution of this ar- rangement. (Signed) ■r.r t^ ' p. DORSONNENS, Commanding the post of Lake La Pluie. (Signed) JOHN W. DBASE, Chief Clerk for the North West Company. WITNESSEP. Jacques Ciiastellain, Clerk for the Hudson s Bay Company, Louis NOLIN, - Clerk for the Hudson s Bay Company. , • Caciirs nre hiJinp plncfn, either diiic i« tlie sronnd. or plac.id upon scaflbUtj In the inu'rior of tlio wi .ois, wlinre provisions andotlier articles, are secretpd dur- ing the winter, or during the ahiwnrc of tlie proprietors, to be fetched awar iu the spring or on their return. Tin- Ciclies nlluded to iiere wercdeoofs of wiiJ rii*^ (xdlecied by the ludiuus and uthein iur tlie lue of the North Wvst Company. 49 APPENDIX G. }■ fnoviMCE OF Lower Cawada, City and District of Quebec, BE it remembered, that at a Special Sut^siun of Oyt*r ami Terminer and general gaol delivery} of our Sovereign Lord the King, of and fur the district of Quebec, holden ot the city uf Quebec, in the aforesaid district of Quebec, on M ondoy the tfightecnth day of May, in the fifly eighth year of the Reign of our Sovereign Lord George tiay wherefore the faid commiuioneni here ough. lOt. upun tit preniiiffl and verdict aforesaid, to procevd to judgintitt and execution against him, who having nothing to say to ioipdic the judgment of law, and all and singular that premises being •een and by the said justices here fully understood. It is ccn. ■idered by the Court here, that the said Charles De R • i Special Session qf OYER and TERMINER, and General Gaol Delivery. Tuesday^ June Otih 181 8. PRESENT* His Honor Chief Justice Sewell, , The Honorable Mr. Justice Perrault, The Honorable Mr. Justice Bowen. Alexis Caron, Esquire, King's Counsel, and Chairman of the Court of Quarter Sessions for the District of Quebec, a Special Com- missioner. The Special Commission appointing George Pyke» Esquire, Advocate General, and Alexis Caron» Esouire, King's Counsel, and Chairman of the Court of Quarter Sessions for the District of Quebec, Com- missioners of the Court of Oyer and Terminer and General Gaol Delivery, were read by the Cleik of the Crown. Attorney Qenerah — I move that Archibald M^ Lellan be put to the bar for the purpose of arraign* ment. . k. r'. A hr^j if I;' Mr. Stuart.-r-l resist tlie motion of the Attorney General on several grounds ; indeed, afler what has passed, I should not have supposed that the Crown Officers would have proceeded with any more trials on this indictment at present. However as they have, I oppose the arraignment of Mr. M'Lellan for r- Chief Justice SeifvelL^-l do not think that at pres- ent we can hear you, Mrf Stuart. The indictment must be first read to him, and tlien you may demur, pr plead to it, as you think proper. Mr, Justice Boxcen, — Yes ceilainly it must be read to him first, for at present you are not before the Coart. Till he is formally accused by the indict- ment being read to him, he is not iu a situation to be heard by the Court. Let that be read, and then he can plead according to his discretion. Mr, Stuart, — We have no objection — It is a mere flatter of course. Chief Justice bewell — No not quite soon an in- dictment for murder. But unless the indictment is read you cannot plead. When that is done, you can plead what yoii like. Mr. Stuart. — My objection to any step being tak- en relative to the other persons named in the indict- i|ieiit is, that the Court can not proceed to decide the limits of Upper Canada, and that till that (juestiou is settled, it is yseless to exppse these persons to the hazard of a long imprisonment, whilst the necessary represent^itions ;ire made tp the Government at liome. Chief Justice Sewell^^-U you'*lhink proper you can ptate your ol)jectipn in the form of a demur; er [to the indictment, or you can put in a special plea of exceptions to our Jurisdiction. The indictment \)e\i)g read dopi> not deprive you of any privilege ^^' B Attorney er what lias the Crown more trials ver as they .. M*Lellan that at pres- I indictment may demur, mnbt be read it before the y the indict- a situation to ead, and then n. It is a n\cre so on an in- indictmeut is is done, you jtep being talv- II in the indict- lI to decide the that (luestiou persons to the It the necessary lovernment at )roper you can a dcmiu'iei [to jpccial plea ol' he indictment any privi'^^g^ you at present possess, it rather opens the door to you to make your objection. That is our opinion. Mr, Stuart, — Well, if so, we do not care when it takes place ; it may as well be now. Chief Justice SewelL—^l do not see how it can well be otherwise. His pleading must appear upon the record. To do this, lie must plead sonuahing, or else how can he be heard by the ('ourt. Mr, Justice Bowen, — The issue to be tried is at present unknown, nor can it, in a legal point of view, be known to us till the defendant pleads to the in- dictment. If you except to the jurisdiction, you, I imagine, will do so on the substantial averment of the indictment that the ottence was committed in the Indian Territory. This can be done in the form of a demurrer or special exception to the power of the Court. Mr, Stuart.-^t appears to iiie that it would he far preferable, and that the ends of justice would be equally attained, were the remainder of the trials on this Indictment to be laid aside till this point is de^ cided by the high authority to whom the whole is to be referred. It seems to me rather an extraordin- ary step on the part of the Crown to press these proceedings under the very peculiar circumltances of the case. I perhaps might be permitted to move the Court that they would make an order that fur- ther proceedings upon this indictment be staid till the points in controversy are settled. Chief Justice Sexvell.-^^ol at present you can not, you can not come by way of motion, because you are not on the record. You must first plead some- thing, and then we will hear you in any way your judgment may point out as most suitable. Archibald M'Lellan uas then put to the Bar, Clerk of the Crowii, — Archibald M'Lellan, Hold up your right hand. 1'. i i:l'< *1*^. ■( , ' I H ^H,| ., m V: l-kJ^ ^'M' ' *§W i-.~\,W '''5 . i. ,i^ . ill '■|i& ■ The prisoner was then arraigned upon ihe indictment. \^Appendix to De Jteinhard's Trials C] Ckrk of the Crown, — How say you, Archibald M*Lellan, are you guilty of the felony and murder whereof you stand indicted, or not guilty ? Pmontfr.— Not guilty. Mr. Sttiart.^'l beg to mention to the Court thus early that we merely put in this plea, that we may appear on the record. We shall have a special plea to put in, but it will require some time to prepare it Mr, Justice Bowen.^^There will be no difficulty about giving you any time you may require, but let the arraignment be finished. Clerk of the Croiwi.— How will you be tried. Frisoner.-^By God and my Country. Clerk of the (Jrown.'^God send you a good deliver- ance* When will you be ready for your trial ? Mr. Stuart^^The special plea which we have to prepsire will necessarily take a considerable time to draw up, as we must copsult together upon it. I should think however we catl be ready by Thursday. Cbi^' Justice SewelL-^Y ery well, if that is agreea^ ble to his Majesty's Crown Officers, we have no ob. jection. Solicitor General-^-Vfe have no wish unreasona. bly to press upon the prisoner, but we trust the gen. tlemcn will then be ready. In the interim I move, as a matter of course, that Archibald M'Lellan be committed to prison. Mr. Stuart — Mr. M'Lellan is on bail, which I conceive is quite sufficient. He is under security to a large amount. CbieJ' Justice SeweJl — After his arraignment he can not be permitted to be at large. Let the Court be adjourned till Thuisday morning at eight o'clock, A. M. he indktmenU u, Archibald and murder Ity? the Court thus that we may I a special plea e to prepare it e no difficulty require, but let I be tried. try» 1 a good deliver. our trial? hich we have to liderable time to tther upon it. I ly by Thursday. ifthatisagreea. we have no ob. wish unreasona. gve trust the gen- i interim I move, laid M'Lellan be m bail, which I under security arraignment he farge. l^et the lorning at eight Thursday, Wth June, 1 81 8« PRESENT, His Honor Chief Justice Sewell, "* The Honorable Mr. Justice Bowek. Alexis Caron, Esquire, King's Counsels Attorney GeneraL^^l move that Archibald M'LeU Ian be put to the bar. Mr. Stuart. — Mr. M'Lellan has most strongly so- licited his counsel to allow the plea of the general issue to stand to the end, that he may receive a spee- dy trial. We have, after great doubt as to the pro- )riety of our so doing, in a legal point of view, at length acceded to his urgent representations, and our only plea is. Not Guilty, Our own opinions ad to the special plea are not at all changed, for in adopting this course, we are rather surrendering our own judgments to the anxiety of the defendant, who, conscious of his innocence, prefers an imme- diate trial under some disadvantages, to protracting the process by availing himself of any privilege which the law gives him, though his counsel felt it their duty to plead it in the first instance. Expecting that our plea would have been put in, our witnesses are not in attendance to day, but tiiey shall be to- morrow. Attorney General.'^l hope there is not to be any more delay, Mr, Stuart, — The late hour at which we consent- ed to this course, left us no opportunity of securing their attendance. To-morrow, however, we shall be fully ready, as I assure the learned Crown Offi- cers, we are as anxious to receive our trial, as they are to put us upon it. Indeed I think we give a tolerable strong assurance uf our anxiety, by adopt- ■m .m'f' ■&m p 'J. ■■■■ i Xilf ■■ ,ii ■ft I A 'v -t,*.: Ing our present course» and abandoning all the ad- vantages of demurring to the indictment. The defendant is in close custody, consequently no in. convenience can occur to the Crown from the delay. Chief Justice SewelL — Adjourn the Court till eight o'clock A. M. to-morrow. And I beg, as I did on the former trial, to remind the gentlemen who are summoned to attend as jurors of the vast importance it is to the justice of the country, and to the prison- er, that every privilege given by the law to both parties should be secured to them. The right of challenging jurors belongs alike to the Crown and the prisoner, and it is a most important one. The Court is about being adjourned until the hour of m eight o'clock to-morrow momipg, and we feel as- sured that it is unnecessary tx> add any thing fur. ther, as an inducement to every gentlemen summon- ed as a petty juror, to be punctual in his attendance at that hour. The Court was then adjourned till eight o*clock 4" M* to-morroto. A » • 9 Friday, nth June, 1818. PRESENT, t-A„0N. Esquire. King's Counsel. DOMINUS HEX, -, S»^£Ji?«OEREiNHARD If °''«"'"dictment CurSnp^y' Mi,Er.LA5 ' ^"'' tfie murder of O. Mr. Attorney-Gcneral. Uniack/ George Vanpelson. ^ ' Andrew Stuart, f „ J. R. Valliere de St. Keal, j '^*^"'''«- , Archibald M'T o7i..« . Unghis challenges, lhen^^f":,^,f. '^ «^«- t^ part ^ tlie Croun, andiZT^ -"^ '"'"^ """i^. on John Orchard '{'*"'' Glattever, 'acques LA I'Yeur. ,;*''**''«« '■'kanquii,. f 'EORGE Poars {)avid Golstrom, Jacques Boilieu, Janiel Golstrom. John Hersev, Joseph Defoi. The Clerk of ,he Cro-Jn T ? "^'°'- ^-'■e^ae„era,pr^J?,lCeTot%£ .,"4 •* '*1.-< -i ■ 1 Wt§i * •'t W'l W'^ ■:*c:i 10 count, wliicli embraces the iburtli, and in additiun, diaries the prisoner with being an accessary afler the fact. Aitornet/ General-^ 'Ye», your Honour, I tliink we had. — Read then the preandile, and afterwardi^ go on to the eighth count, Mr. Waller. The preamble was then read. — ( Appendu to foHner trial C.J Chief Justice SavelL — Before the count is read, I would remark that it is the right of the cotmsel for the prisoner, to insist on his behalf, that the whole indictment be read, if they think proper.. If less than the whole is read, it must be by their consent, "but as the eighth count contains the whole of the allegation against the defendant, it perhaps will be thought unnecessary to trouble the jury with the whole of this long indictment, but if there exists the slightest wish to liave the whole read» let it be men* tioned. jVfr. Stuart. — We have no desire to have it reail. 2'ho eighth count teas thifi read htf Mr. Widh\ tvho informed thejuri/ that to this indictment the pis- oner had, vpon his arraignment, p!eaded. Not Guiltify and for his trial had put himself upon God and his Counlrj/y which Countrif they were ; they would, UieU' Jore, stand together and hearken to the evidence. Attorney General, — May it please the Court j (lentlemen of the Jurv, The prisoner at the bar, Archibald M'Lellan, isl accused of the crime of murder in kdling one Oweii| Keveny in the Indian lerritory. By the indicl-, ment, or that part of it which you have just heardj read, you must have perceived that the present pris-J oner is not charged as being the actual perpetrate of the nmrder, the accusation against him is thatiid 11 in addition, pessary after )ur, I think d afterwards did' tofof^iCf' iiBt is read, 1 lie counsel tor iiat the wi^ole roper. 1*" ^ess J tneir consent, le whole of* the perhaps will be jury with the there exists the , let it be men. 10 have it reail !,y Mr. f^«"^'» fictment the pnn- \ded. Not Gwltjfy Ui God and his \hetf would, Uien- \he evidence. the Court > iald M'Lellun, i^' ^aiing one Owcnl By the iniuct- have just heard L the present m [ctual perpetrator lust him is that In was ail accessary, both before, and after, llic com- mission of the oftbnce. The principal, Charles dc Heinhard, gentlemen, has been convicted in this Court of the murder charged in the indictment to have been conmiittcd by the j)erson8 named therein, and the record oi his conviction will, in the progress of this trial, be produced and made evidence against the defendant, as establishing (as it is incumbent upon us to do) beyond the power of controversy, the actual commission of the murder to which we allege Archibald M*Le1lan was accessary. A very tfew words will suffice to explain what is meant in law by accessary before and after the fad. An ac- cessary before the fact, in law, is one who, though absent at the actual perpetration of the murder, has, before its commission, invited, counselled, or in any way led to, the crime being perpetrated, and the punishment of the law is the same to the accessary as to the actual murderer. The crime of accessary after the fact, (which is another branch of the accusa- tion a^'-ainst the prisoner at the bar,) consists in liarbouring, or affording protection, to the murderer, the fact being within the knowledge of the person affording the protection. Each of tiiese seyiarate allegations we expect to sustain satisfactorily so as to compel you, in the discharge of your duty, to say the prisoner at the bar is guilty of the crime whereof he stands charged in the indictment. The prisoner at the bar, gentlemen, is a partner in the North West Company, and the deceased Owen Keveny was a servant in the employ of the Hudson's Bay Company. Of these two Companies and their unfortunate disputes, it is impossible but you, gentle- men, as well as other persons, nuist have heard a great deal, but it is your bounden duty to discard liorn your minds every thing you may have heard or lead upon the subject, and, uninfluenced by any Krf m - !• I r, ,' Wn i r It: 12 thing but what shall be placed before vou in evidence, and the charge you will receive IVom tiie bench, conscientiously and impartially render justice to the Country, and to the prisoner, for, gentlemen, wc seek not the conviction of the accused, imiess in the investigation you arc about making, we bring home to your consciences the absolute impo. ^/^^^ \ >. 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) •72-4503 4^^ ^"5^" ""^ \ El opposition was noade by him, and v^ry high lan- guage took place between him and De Reinhard. It will, I think, appear a singular cirGumstance, that M'Lellan, the very last time he was seen, should have left him in the company of tli^ very persons who had executed that warrant, and who, trora their previous quarrel, might be supposed to bfe his ene- mies ; and this, it will be shewn to you in evidence took place after that in a general conversation, which M'Lellan did hear, (or, as he was in a situa- tion to have heard, it will be for you to determine, whether he did or not,) the killing of Keveny by these two men was freely spoken of: The conduct of the prisoner at aaother time, will also furnish a strong circumstance against him, I allude to the time, when he fell in with the two Canadians, (of whom I have spoken before,) after their separation from Jose in consequence of the quarrel, Enquiring of these lads why iliey had beaten Jos^, they told him that he had attempted to kill the prisoner, and that, having preverted him, he had first quar- relled with, and then left, them. To this M'Lellan answered, that it was none of their business, and flew into a violent passion, beating them with the perch of the canoe. He then took these men into his canoe, and proceeded in search of the deceased, who had been previously left on a small island from the Indian not permitting him to embark in the ca- noe with them. A conversation in this canoe will be proved to have taken place at this time, (which I think it will be impossible to say M'Lellan did not hear,) in which the killing of Keveny was so freely talked of, that his butin was divided. This conver- { sation took place between the Half- Breeds upon re- ceiving information from some canoes coniing in a contrary direction as to where Keveny was j they informed them, that they had seen his tent, ** en igh lan- .einbard. nee, that I, should y person^ trom their ; his ene- i evidence nversation, in a silua- determine, Keveny hy 'he conduct ;o iurnish a lude to the nadians, (ot ir separation ; t^pquiring 5^, they told the prisouer, lad first qijar- this M'Lellan business, and lem with the [ese men into the deceased, all island from [ark in the ca- ks canoe wiU time, (which 1 .ellan dvd not was so freely This conver- breeds upon re- ;s coniing m a .nv was-, they his tent. - eu 1^ haut des Dalles," and a very remarkable converse, tion took place between the prisoner and those be* longing to the brigade they met. M'Lellan en- quired how he managed to live, and receiving for answer that sometimes he bought from the Savages, and sometimes he stole, he replied in this significant expression* ** Cest bien, il ne volera pasplus long terns, demain a eette heures son affaire est finie.*' (A) after retaking Keveny, he proceeded on his way> leaving him to follow with De Rein hard, Mainville, and 3os6, who were to conduct him to Fort William. M'Lellan went about three leagues and then encamp- ed for the night, and it was between these two (^aces, " en haut des Dalles," where Keveny was retaken, and the place of encampment, that the murder was committed. Some time afler thev had encamped, the small canoe which had been left for the others to follow in, arrived at the encampment, but Keveny was not therej the other three were, and what I tliink you will consider a circumstance well calculated to prove the charge we bring against the prisoner of harbouring the murderers, well knowing they had been guilty of the crime, is, that they^ brought with them the clothes of the deceased in a bloody state, and the canoe also was in a similar condition^ Gen- tlemen, there are a variety of strong circumstances connected with the cause which, although, perhaps, they do not amount to that positive proof which on many charges the Crown are capable of bringing forward, yet, when the whole are combined, they form such a mass of evidence against the prisoner, that there can scarcely exist a doubt as to his guilt. Again, recollect his anxiety to retake the deceased, his apprehension that the young Canadians had let him escape, his anger at not finding him on the ( ' ) 'Tis well, he will not steal any more, to-morrow at this hour his business is done. 16 island where they described he had been left, and h it not singular, after all this anxiety, that he did iiot take him with him in his own canoe, when he was bound to keep him safely, so as to h^nd him over to the laws of the country. It will be proved also, that at the timfe the canoe arrived without the de- ceased it excited no surprise in the prisoner, but that De Reinhard communicated the catastrophe to those who were standing by. Saying, " s*affaire est bieri faite, il est bien cach^— il ne reviendra plus." Q) No difference was made in the deportment of the prisoner towards the tnurderer, they continued to live, to eat, to sleep, together. If it is alleged they could do no other in travelling in a canoe, yet cer- tainly they could when encamped. 'J he day after the arrival of the little canoe, as will also be shewn in evidence, a division of the butin of Mr. Keveny was made, and that the prisoner received a pair of boots, a loaf of white sugar, and all the papers be- longing to him. Another very strong circumstance that A^ ill be testified to, is that Mr. Keveny, at the time he received his Wound from the gun twaw.— No :, its course was certainly nor- therly, inclining a little, as I think, to the west. I Examination of Mr. Coltman, resumed by the Attorney General Mr, Coltman,^^! passed the Dalles twice in the [year 18X7. / Attorney General — ^What distance are they from I the mouth of the Lake of the Woods ? * thief Justice Sewell — You had, I think, better as- I certain from Mr. Coltman, what distmce they are from the beginning of this river — whkh question be* \^put by the Attorney General Mr, Coltman,^^From the beginning of the river IWinnipic, that is at the Lake of the Woods, I should Ithink the Dalles from twelve td perhaps twenty liailes distant, but I can not speak with accuracy, as llhave no other way of judging but from the time I took in passing to them. The ^^'spot called the [Portage des Rats I always understood to be the most laorth western point of the Lake ot the Woods. It Iwas always represented to me as such, and from all Ithat I saw or remarked it appeared to be so. A iue west line drawn from the Portage des Rats would, »s I think, entirely leave the whole of the river Win- Dipic to the north of it. It would, as I think, leave ym i ii 20 the whole of it to the north, but I can spyeak with great confidence that by far the greater part must be so left. Attorney General-^ AWovr me to ask you, Sir, if any part of the River Winipic should not be to the north of a due west line, whether that part would be the Dalles ? Would such a line leave the D«lles to the north ? Mr. Coitman. — I have no doubt at all hut the Dulles wo^ld be to the north of snch a line. If any part of the River Winnipic is not to the north of such a line, it, must be a very small part, but the Dalles I can have no doubt ar6 to the north. I con- ceive the western boundary fixed by the statute, namely a line drawn due north from the junction of tl».e Ohio and Mississippi Rivers, would leave the Dalles far t^ the >yest. Croas examination conducted hy Mr. Siudrtt Mr. Coliman.-^! have no personal knowledge pf the latitude ai^d longitude of the junction of tlie CMyo and Mississippi rivers. My opinion is fouuded iipou the universal fk^prt of geographers. I Wjas never at the junction of these rivers, bUit I have been in Upper Canada. Fort William ^s at the head of Lake Superior. I have, been there, and it is generally considered to be within the limits of the Province of tipper Canada, y Mr. Stuart. — poes not the ordinary process of a magistrate of t^per Canada issue for onences com- mitted at Port William ? Mr, Coltman. — It has been universally reputed that the King's process issued in Upper Canada is enforced there, and I believe it to be the case. Chief Justice Sewell. — I do not think that a ques- tion which can be, with propriety, put to Mr. Colt- man. The construction of the statute is with uSi\ «••»;■:), ^l speak with part must you, Sir, if Qt be to the ,art would be je D9lles to i all but the iine. Kany the north of part, but the nottlft. Icon- y the statute, 1 the junction ould leave the if r. Studrt I knowledge of ion of the Oluo s founded upon I wia? neveir II have been in ,e head of Lake it is generally the province ot lary process of a )r offences com- ^ersally reputed [pper Canada is be the case, ink that a ques-l put to Mr. Colt. Itute is with usA and that being the case, the effect of a process at ^ any particnla^ spot must depend upon its latitude, and longitude. That you may ascertain from Mr.* Coltman, and then we will, if necessary, decide the point of jurisdiction. Mr. SttiarL — Do you know the latitude and lon- gitude of Fort William ? Mr, Coltman. — I do not think, or perhaps I ought to say I do not know, that the latitude and longitude of Fort Wiliiam have ever been ascertained with sufficient accuracy to enable me to speak with cer- tainty or confidence, but every account that I know of fixes it to the west of a line drawn north from the junction of the Qhio and Mississippi Rivers to tlie Hudson's Bay Territory. My knowledge of the latitude and longitude of the junction of the 0-' hio and Mississippi Rivers and of Fort William, is clrawn from simili^r sources and of tlie same kind, bjUt differing in degree, as niore scientific persons I^ave visited and ascertained the latitude and longi-^ tude of thejuqcti6n of the rivers Oh;fo and Mis#^ sissippi than .that of Fort Wilfiam. JOSEPH BOUCHETTE JUNIOR, mm, and examined hy the Attorney General, liltr. Bouchetfe, — I am Deputy Surveyor General of this Province. ^^^^ / Chief Justice SewclL-^The Deputy of the Survey- or General I imagine ybu mean. Sir ? Mr: Bouchette, — I am Deputy to itiy father, the Surveyor General of this Province. From different authors and inaps, I am acquainted with the lati- tude and longitude of Portage des Rats. It is in 49^ 39' North latitude, ^nd 94*=* 5' Western longi- tude, calculating from the meridian of Greenwich. Qmf Justice SewelL — Was you ever there, Sir ? Mr, Botwhette. — No; I never was, I have al- ways considered the north west point of the Lake »:'■ r I $ of the Woods to be to the westward of Portage dei Rats, and it is, according to maps, in 49** 58' north latitude, and in 94** 25' west longitude. The western boundary of Lower Canada is an astro- nomical line dra^vn from the junction of the Ohio and Mississippi Rivers, due north towards the Hud- son's Bay Territory, in which course it would strike Lake Huron and leave the Lake of the Woods to the west of it. Chief Justice SewelL — How much to the west ? Mr. Bouchette. — About six degrees to the west. The general course of the Winnipic is north, with about thirty degre^U of west, and is all to the north of a line drawn due west from Portage des Rats. Cross ea^aminaHon conducted by Mr. Valliere de St* Real Mr. Bouchttc^The latitude of Fort William is about 48*^ 16' North.— At that latitude the length of a degree of longitude is computed at about fifty five miles; that is to say about five miles shorter than at the equator. In saying ori my examination rn^hief that my knowledge of the line&and latitudes ana longitudes was gathered from' maps, I referred to the map of North America by Axrowsmith of London, and the map of my father, the Surveyor General. X have no knowledge that my father was ever higher up the country than Niagara, nor have 1 any reason to believe he ever was, indeed I do not think he ever was, in the Indian Territory i^ Solicitor General — You, I suppose, do not know whether he has been or not into the Indian Terri- tory ? Mr. Valliere de St. Real. — Have you not, in con- versation on thib subject, heard the Surveyor Gene- ral say he had iiever been there, or did he ever say that he had been there ? Valliere de St* 23 ever Mying he had ^ot been ih^ ""^^ofced iZ think luy father was ever hf^hi fif ' ^"' ^ «>« "ot can not telJ whetheTCche fcl^" ^''«««- I Arrowsmith's. or if they exacdv -T*^ "^"^ r*!* «•«« relative to n.y evidenL rl '^f'^* " ""ose parts consulted a,,/ other ^1/ ''"^^ "°* particC notaswornsLeyon iTLlh?" '"'^^^' I«» HUBERT FAYE J "" "«''*^^» ^««" «". {u a cSsfefst firdS*'?^""!"*"- Ifcla Pluiedansun cannf f *^ /*' Parti du M'Donell et Mens. Cadotte pT^H'^' P"' ^«'«^ Mons Cadotte „„ coLSrl *"n''°"'S«°«. «* Nord Quest. La nnnt? ' • ® '* Compatnie dn triimes deux p^fcSr •'°"™'^ "o"' reico„" toundescaLts-lySt!ir'*"' ^^ "'"■^'«. "t J^«^*. Je n'avois nas ^nn • P"«0"nier et dnq r«ir r'^ '■' ^KnXr etie'r. ?""""•"' nanmer Keveny.. Mons M"?^ ,.J? ^ *' entendu » dejeuni avec Inf. efemn.*^ Pi'"^" ^"^ ^ P*'^. et yo^ a un nomm6 U Pointe ''^''''"r ' '''=« "rdr^s d Jos^ FiJs de h Perdrix £' t T ^^"^^^ "'"""^ duprisonnier. et I'amener J.!' T^ Pf'"''^ *='"''-ge Wage avoit un fnsi]fX ^" ^''^ '» Huie. £e >nn*5. Nous partimes en^PmKi ^°'"*« "'«^toit pas en charge. (') ""^ ^"'^"""e avec Je priso«„i^ I ^^Xj^tJut "^'"^ -'f *« North West Com„ ""e under thi com^nd Jm V '?« I*^' UHutT^' «--o.te.c,„,or..eK^fe-j;- K« ^1 't P:l i, Solicitor General'^l am now about putting a question about which as there may be some doubts, I will state its nature atid object in English, that the mind of this witness may not be exposed to preju. dice. My object is to prove that at this time there existed a manifest intention to kill this unfortunate man. Chief JusHce SewelL-^Wh'dt has that to do with the prisoner at the bar, whose name even is not yet mentioned. Solicitor General, — ^We will bring it home to the prisoner after. Though M'Donell may be said to be now hors du combat^ and the evidence we have given may not appear to apply, we shall incontesti* biy connect the whole of the circumstances and the prisoner with them. At this moment the prisoner (Keveny) is delivered up to this party who take him in charge, and we shall shew that they afterwards met the prisoner at the bar, and that shortly after meeting him, Keveny was taken out of the custody of these persons, and handed over to his murderers* Eventually we shall connect these two branches of the testimony, and distinctly connect the prisoner with both pieces of the evidence. Indeedi unless permitted to take this course of laying every thing before the jury in the order of time in wiiich they occurred, I fear the evidence will appear confused. day, we met two 8maH canoes aiscendirtg Ae river, and in one of the canoes there was a prisoner and Ave Metifs. 1 had not, at that time, any knowledge of the prisoner, but he was a white man, and I heard him called Keveny. Mr. Macdonell conversed with him, and breakfasted with him, and afterwards he gavt udersto nv?, to one named La Pointe, and to an Indian of the name of Joseph, son of the White Partridge, to take charge of the prisop- er, and carry l^hi to Lake La Pluie. T^e Indian had a gun, and 1 asked Mr. M^dptiiill for onie, but he refused i^. La Pointe Was not ariTied. We set off together having the prisoner In chan^e^. , putting a »me doubts, ish, that the jd to preju. L8 time there unfortunate . to do with ren is not yet t home to the ay be said to nice we have all incontesti. Lances and the it the prisoner ' who take him ley afterwards t shortly after of the custody his murderers. wo branches of ;t the prisoner Indeed^ unless ig every thing 1^ wiiich they >ear confused. Iver, and inonecJ lifs. 1 had not, at le was a white roan, [leU conversed with he gavi '^«le«*<» Uofthe name of large of the pnson. Vn had a gun, and ted it. LaPointe [g the prisoner in 25 Chitf Justice SewcU. — I do not for a moment in- sinuate that you would do any thing wrong, Mr. So- licitor, but it is really a pity to lose time by attempt- ing to go into an examination of circumstances with vhich the prisoner is not shewn to have the slightest connection. It certainly is reviving the course ob- jected to on the late trial, and wiiich was then de- clared to be inadmissible. Connect the prisoner i^ith transactions you propose to make evidence against him. Examination resumed by the Solicitor GencraL Taye* — Nous partimes avec Keveny, et apr^s, en consequence de chicane entre Jos^ et lui, nous I'avons laiss^ sur une isle, parceque le Sauvage, qui ^toit notre guide, ne vouloit plus I'embarquer. Ensuite nous avons rembarqu^, et quelques jours apr^s, il y avoit une querelle entre La Pointe et Jos^, et ils se battoient ensemble, et Jose nous a quitt^^ J'^tois avec La Pointe en recherche de Keveny, mais ne le trouvant pas, et ne sacbant le chemin, nous avons debarqu^ sur une petite isle, pour attendre des canots. La cinquieme journee nous avons vu un canot approcher, et dans ce can6t il y avoit Mons. Archy, (le prisonnier a la barre,) Mons. Cadotte, Mods. Grant, Mons. De Reinhard avec sept metifs. Jostle Sauvage etoit la — Mons. Archy commandoit le canot, comme on m'a dit, et d'apres ce que j'ai vu. Je n'ai pas entendu autre que Mons. M'Lellan donner des ordres. Mons. Archy est un associ6 de la Compagnie du Nord Quest, et il y avoit deux 6u trois commis avec lui. Mons. Archy a debarque et I m'a attaqu6, et m'a donne des coups de baton, pais jene sais pas pourquoi. (0 (») We set off with Keveny, and afterwards, in consequence ofdisaereements between Joseph and him, we left him on an "'111 KM' U^ 26 Mr. ValRere de St. Real — I beg that may be taken down. Chief Justice SewelL^-^Yous ne savez pas pour- quoi? Fai/e. — Je ne sais pas ponrquoi. Mons. Cadotte rti'a demand^, " qu'avez vous fait avec le Sauvage ?*• et j*ai r^pondu qu'ils se battoient ensemble, et le Sauvage se sauva dans les bois. Cadotte ensuite m'a demands pourquoi j'ai battu le Sauvage, et je Tai dit que c'^toit La Pointe qui I'avoit battu et que i le Sauvage se sauva dans les bois. Apres iious avons | embaiqui dans le canot pour aller chercher Keveny, et j'ai racont^ dans le canot, et aussi a terre, ce quel s'e toit pass6. Je I'ai racont^ a tous ceux qui pouvoient m'entendre^ et nous 6tions tous ensemble, et Mods. I Archy y ^toit dans le canot et a terre, mais je ne sais pas s'il m'a entendu ou non. Mons. M'Lellan m'a parl^, mais je ne me souviens pas ce qu'il adit| J'ai raeont^ tout ce qui s'^toit passe entre le Sau- vage et nous, et que le Sauvage voulut tuer Keveny. I Je ne me rappelle pas ce que M'Lellan a dit. Je ne connois pas s'il ^toit content. C'6toit avant de lui avoir racont^ cela, qu'il nous avoit battu. II ne paroissoit pas en colore contre le Sauvage. Je ne[ puis pas dire s'il etoit fach6 contre lui ou non, par* island, because the Indian, who was our guide, would not let him embark again. We then re-embarked, anid a few days afterwards,! a quarrel occurred between La Pointe and JosepJi, and thejrl fought, and Joseph left us. I went with La Pointe in search ral Kevery, but not finding him, and not knowing the way, we landedl on a small island to wait for canoes. On the fifth day we saw al canoe coming, and in that canoe were Mr. Archy, (the prisonerl at the bar) Mr. Cadotte, Mr. Grant, Mr. De Reinhard, with! seven metifs* Joseph the Indian wa» there. Mr. Archy coni-f manded the canoe, as I was told, and according to what I saw.l I heard no body but Mr. MXellan give any orders. Mr. Arcbyl is a partner of the North West Comoany, and hi had two or threej clerks with him. Mr. Archy landed, and attacked me* and bca me with a stick, but I do not know for why. 27 savez pas pour- eeque je ne Pai jamais vu auparayant. Ensuite nous nous sommes tous embarqu^s, M'Lellan avec les autresy dans le canot. Le lendemain nous avons rencontr^ cinq ou six canots, par qui nous avons appris que Mons. Keveny ^toit plus loin en haut des Dalles dans la riviere Winnipic, et apr^s nous avons trouvd Keveny d Pendroit. Je ne connois pas si c'dtoit Mons. Ducharme, mais quelqu'un a demand6 I des gens des canots, comment Keveny fesoit pour vivre, mais je ne sais pas si Mons. Archy Pa entendu. Nous avons parl^ tous ensemble, et quelqu'un a de- mandd, comment fait il pour vivre, et quelqu'un I repondoit, que quelquefois il voloit des Sau vages, et quelquefois il achetoit. Je ne sais pas en quelle I partie du canot M'Lellan etoit d ce moment. Je ne uis pas que M'Lellan a entendu cette conversation. Je ne puis pas dire. M'Lellan etoit plus jproche que moi et je Pai entendu bien. J'etois un peu plus I loin que Mons. Archy. Je ne parlois pas alors et dans ce moment je n'ai entendu aucune replique 4 cette reponse. Je Pai entendu bien mais je ne sais {pas si M'Lellan Pa entendu ounon, mais certaine- ment il ^toit plus proche que moi. ( ) (•) 1 do not know for why. Mr. Cadotte asked me, "what have you done with the Indian ?" and I answered him that they had fought together, and the Indian ran away into the woods. Cadotte then asked me why I had beat the Indian, and L told him, that it was La Pointe who had beat him, and that the Indian ran I away into the woods. We then embarked in the canoe to go ia lea^ch of Keveny, and I related, both in the canoe, and on shore, what had happened. I related it to all who could hear me, and we were all together, and Mr. Archy was there, in the canoe, and on shore, but I do not know whether he heard me or not. Mr. I'Lellan spoke to me, but I do not recollect what he said. I I related all that had occurred between the Indian and us, and that the Indian wanted to kill Keveny. I do not remember what Mr. M'Lellan said. I do not know whether he was pleased. It was I before telling him that, that he beat us. He did not appear to be angry with the Indian. I can hot say whether he was angry with him or not, because I never saw him before. Afterwards wc all . A 28 Mr. Stuart,-'^ All this goes for nothing, I presume, till my learned friends shew that Mr. M'Lellan took part in this conversation. I imagine your honour will not put it on your notes. Solicitor OenerdL — I contend that it ought to be taken down. The witness goes the utmost length any man desirous of speaking the truth can do. It is impossible for him to say that sound went into a person's ears, but he proves that he might have heard, by proving he was in a situation where it was almost impossible but he must have heard. Chief Justice SewelL — I do not think that is so clear, for he does not even know in what part of the canoe Mr. M'Lellan was sitting. Solicitor General,— But does hot your honour think that, as he was in the canoe, it is reasonable to in. fer he «nust have heard what passed. Mr, Stuart, — And suppose he did, is that to con- Vict a person of being an accessary to the crime of murder ? Am I, or any spectator, for example, to be made responsible for all we might bear pass even in this Court? Or, I would ask, must it unquestiona- bly follow that because ^ person is near enough to embarked, MXellan with the others, in the canoe. The next day we met five or six canoes, by which we learnt that Mr. Keveny was farther on, above the Dalles in the river Winnij^ic, and after- wards we found Keveny at' the place. I do not know whether it was Mr. Ducharme, but somebody asked <:he people of the canoes, how Keveny managed for his living, but J do not know whether Mr. Archy heard it. We were all talking together, and somebody asked, " how does he manage for his living ?" and some one an- swered, sometimes he stole fropn the Indians, and sometimes lie bought. I do not know in what part of the canoe M'Lellan was at that time. I do not know that MXelli^ hear4 this conversa- tion. I can not say. M'Lellan was nearer than I was, and I heard it very well. I was a little farther off than Mr* Archy. I was not then speaking, and at that time I heard no reply given to this answer. I heard it very well, but I do not know whether ^i'LcUun heard it or not| but certainly he yras nearer than I wa^* 29 g, I presume, kl»LeUaii took your honour it ought to be itmost length Lh can do. It id went into a e might have ►n where it was learil. ink that is so ^rhatpartofthe ur honour think asonable to in- [, is that to con- to the crime of for example, to t hear pass even it unquestiona- lear enough to ^noe. The next day »t that Mr. Keveny kvinni^ic, and after- lot know whether it jeople of the canoes, not know whethei ether, and Boraebody and some one an* and sometimes he Eanoe M'Lellan was |ear4 this conversa- than I was, and! tianMr. Archy. 1 rd no reply given to not know whether nearer than I wa^* attend to a conversation, that he actually does so attend ? Examination resumed by the Solicitor General, Faye, — Dans ce tems je n'ai entendu aucune reponse, mais apres, et au tems que nons ^tions dedans le canot, j'ai entendu quelque personne dire, « il ne raangera pas long tems." Je ne sais pas en quelle partie du canot la personne ^toit, ou si M'- Lellan I'a entendu. (') ChieJ Justice SewelL^-^1 should be sorry to reject one tittle of evidence that ought to go to the jury, l^ut really I can not see how thjs is to bear against the prisoner at the bar, Mr, Stuart, — In producing their case, my learned friends make some omissions which are exceedingly important when facts are exhibited, namely, the time and plage where they occurred. But, sup- posing they were supplied, still my learned friends must go considerably farther, and prove, not only the presence of Mr. M*Lellan, but a participation and approval of what was going on. This must form the substratum, that M'Lellan was present, and heard, participated in, and approved of what passed. Chief Justice Sewell.-^We had this difficulty on the last, and also on the former trials, and we then decided that evidence could not be accepted of con^ yersations which it was not proved the prisoner par- ticipated in, or approved. In the present case we do not see how this is to be brought home to M** Lellan. You prove no participation ; he does not say a word, nor does the witness know whether he pven heard a word, This man gives so imperfect ('') At that time I did not hear any answer, but afterwards, and whilst we were in the canoe, I heard some person say ** he >vill not eat a long while." I do not know in what part of th^ cauoe the person was who said so, nor whether M'Lellan heard it. 30 a narrative, that I really do not see "what is to be made of it. He does not know where the persons were who held the conversation, whether behind or before him ; he does not know who they were, in fact he appears to know nothing, but that they were all in a canoe, and that he heard what passed. It would be higlily dangerous to admit as evidence that which is not clearly brought home to a prisoner, and you certainly have not brought this conversation home so as to make it evidence against M'Lellan. If you can shew he was in a situation near enough to have heard, in the common course of things, it is a fact you may prove, but even then I do not think much could proceed from it, for though thus situ- ated, he might not hear. Solicitor General, — I consider that is to go the length of saying that a witness must swear that a man positively hears a thing i that I consider to be impracticable. Examination contintied. ¥aye, — ^Je pense que I'homme qui parloit etoit par devant moi. Je ne sais pas si M'Lellan etoit devant moi, ou en arri^re. Je ne puis pas dire s*il parloit haut, ou comme je parle actuellement. (*) Chief Justice Sewell, — It comes again exactly to what he has said twice before. You perceive he will not fix the place, or whether the person spoke loud or not. Can such evidence bear against a pri- soner ? Examination resumed by the Solicitor General Faye. — ^J'ai entendu quelqu'un dire, mais je ne sais pas qui I'a dit, qu*il ne mangeroit pas long tems. ( B ) I think that the man who spoke was before me. I do not know whether M'Lellan was before me or behind me. I can not say whether he spoke loud, or as I am speaking now. /hat is to be e the persons lier behind or hey were, in hat they were it passed. It I evidence that t prisoner, and conversation nst M*Lellan. near enough of things, it is [ do not think gh thus situ- is to go the t swear that a consider to be i parloit etoit kl'Lellan etoit s pas dire s*il llement. (") lin exactly to u perceive he person spoke I against a pri- or General, e, niais je nc ; pas long tems. ore me. I do not nd me. I can not ; now. 31 ^^'^V^T^'.I^J^ pas W dans Je canot ^ ' *^^'* ^'"rt par devant moj Chief Justice Seweli r»\ dans Je canot auCePel ^""''.M-Lkan «o}t fo.t plus pr^s de ce" e pe^Lr* •'" "' ^'* ?<« «'« Les associfes et commis oS ^"^ """ °» "on. A^ns le milieu du cS MoT^.r"';.^ ''^n-^^t mihey u„ pe„ en avant. "*' •^^«^'» ^^it au loiS/r^" ^*'^^^-Co„,n,ent parfoitil? p.,. II f"^*^-."-'' parloit assez fort dokf m^- i. "f*^'°'''=«'j»raejeparle TpSt T ' ^"^^n^re. qui parloit ^toit par devant moiT P^i-spHne r^t'T*'^ ne sais pas. CO Omef Justice Seae// Wu ^ .^ , ieuelL—Whut can you make of all this? wfteif would not eat a lone while 1h!v . *L® ®*'^ ^'^a* the pri- I'Vr&Jil; ISZ SS" •"^'• 0. tr — The one that finnt« J *"°^®' ^ '"'as behind. «• *•— I do not know. ■ 33 i''f Fai/e, — Nous avons trouv^ Keveny camp6 avec des Sauvages, mais je ne sais pas. Mons. M'Lellan ne Pa pas piis dans son canot. II a dit qu'il ne le laisseroit pas entrer dans son canot. (' ") Chief Justice SewelL — I wish before we go on, to clearly understand whether M'Lellan said any thing, and what, at the time of the expression, « il ne mangera pas long terns." The Solicitor General accordingly put a question founded on his honour^ s remark* Faye, — ^Je ne sais pas. Je ne sais si M'Lellan a parl^ alors* Au terns que nons avons laiss^ Keveny il est reste avec Charles de Reinhard, un nomm^ Mainville (je ne sais pas son nom de bapteme) et Jose, ou Perdrix Blanche, pour nous suivre dans un canot que les Sauvages gomtnoient alors. Solicitor General.^ — Avez vous entendu des me- naces contre Keveny ? Faye.^-^y-M entendu des menaces de Charles de Reinhard. (") Mr. Stuart. — I do trust the learned Solicitor General is not endeavouring again to make us ac- countable for any one's conduct but our own. I object to the last question, upon the principle al- i*eady so frequently recognized by your honours. Chief Justice Sewell.-~-You must, Mr. Solicitor, first connect these people by some act before you ( * • ) We found Keveny encamped with the Indians, but I do not know. Mr. M'Lelkn did not take him into his canoe. He said he would not let him get into his canoe. ( > 1 ) H. F. — I do not know. I do not know whether M'Lellan spoke then. At the time we left Keveny, he remained with Charles de Reinhard, one named Mainville, (I do not know his christian name,) and Joseph, or White Partridge, to follow us in a canoe which the Indians were then gumming. S. G.^ — ^Dld you hear any threats against Keveny ? H. F. — I heard a threat of Charles de Reinhatd's. endu des me-> ie Charles de P "3 lo,D, maisje J'ai bien enJeS n"'' ^ J'^'"" MainviIIe disoit. "i^^t!!} P*''®'" ^^ son butin Ilsaoiem proche de moPet ^"?-* «">chapeau. parfe 4.ce tem^ci. f.^) ' ^* Parloient comme je (^J Justice Seteea—T'^.i ■narcho t dans le terns "fj^" ^^f Le canot Mgeoient. "*^ ** °<»"s ^tions dix qui P^Hf Justice Seasell 4 * voire serment; U'LdUn Tf Tf . ''""no'ssance^ sur ou non. P^ ** ^ons. Archy I'a entendu ^f Justice Seteell —A t ;i r, u I parler. (w) *' P^* Je ne I'ai pas entendu h»Iw«., when lKhi,?'„Tt.?'^"^'*°*' »««»'>«'* "flere Kevenv was ««i* ««<. t i.^' before com nff to cHa «i™ "ot take care?' Mr MM^^ i,^ '^''^ **»°^ him prfsonef Ld V *^ II! ' """^h e«nTO. The caDM j„ ' ?*• crwn-officen.) ft ' E 4i H>?' ft It !' '.IV li: i 1 Si Mr. Stuart'-^Then I consider the whole of this evidence liable to the objection we have before made, and which the' Court held to be valid. Chief Jmtice SeweU.^^lt rests with the jury^'t* give what credit they think proper to the evidence, and also to say whether he did or did not hear. The Crown has merely proved that he was in the canoe. It bein^ now half past one o'clock, the Court will adjourn, ror half an hour, to allow the jury to take the refreshment which is prepared for them. The Court was accordingh/ a^oumed. Afternoon, The jury being called over and all present, the examina- tion of Hubert Faye taas resumed by tJie Solicitor General, Faye, — Laissant Keveny, Id dessus nous avons continue notre route, environ Irois lieues, quand nous avons debarqud. Le soleil n'^toit pas encore couche, et alors nous avons rest6 pour la nuit. Apr^s ^tre camp^, j'ai entendu un coup de fusil. J'etois alors i terre, mais je ne sais pas oi!i ^toit Mons. M'Lellan. J'ai entendu un nomme Desma- rais dire, " oh les chiens Tout tue." (*'*)• Mr, Valliere de St, Real, — ^That can not be evi- dence what Desmarais said. Only the hearing of a C. J. S. — To your knowledge, upon your oath, did M'Lellan hear or not ? H. F.— I do not know whether Mr. Archy heard it or not. C. J. S. — Did he speak, or did he not ? H. F. — I do not know ; I did not hear him speak. ( * * ) Leaving Keveny, thereupon we continued our route about three leagues, when we landed. The sun was not set« and then we stopped for the night. After bemg encamped I heard the report of a gun. 1 was then on shore, but I do not ki^ow where Mr. M'Lella<) was. I heard one named Desmarais say, *' oh, the dogs have killed him." S5 " coiip de fusil" (no very extraordinary event in a country whose inhabitants live by the chase) can be received in evidence. A fact it certainly is, but not one from which I apprehend my learned friends ex« pect to make much. Exandnation resumed hy the Solicitor General, Fai/e, — Ensuite j*ai vu le canot de De Reinhard qui venoit, mais Mons. Keveny n'^toit pas dedans. Mons. Archy et quatre autres ont couru au bord de I'eau, et on demandoit ; " qu'avez vous fait avec le prisonnier," et quelqu'un dana le canot, (mais je ne puis pas dire qui,) a repondu, " il est mort ;" je n'entendois pas si M'Lellan a dit rien, il etoit alors plus loin que moi ; il n'a paru ni content, ni fach^, mais je ne I'ai entendu rien dire. De Reinhard a debarqu^, mais je ne sais pas s'il a racont^ les cir« Constances de sa mort. Mainvilie les a recont^. Q^) Mr, Valliere de St, Real, — The Solicitor General surely does not intend to offer Mainville's story of what happened when M'Lellan was not present, as evidence against him. Chief Justice Sewell, — That will not do certainly, unless M'Lellan was by and participating in the conversation, or it was proved that the facts came subsequently to his knowledge. Examination resumed by the Solicitor General. Faye, — Mainvilie les a racont6 au soir, mais les bourgeois n'^toient pas avec jious. lis n'koient pas * ( > ^ ) Afterwards I saw De Reinhard's canoe a coming, but Mr. Keveny was not in it. Mr. Archy and four others ran to the water side, and it was asked, ** what have you done with the prisoner," and some one in the canoe, (but I can not say who,) answered, *< he is dead." I did not hear whether Mr. M'Lellaii said nothing, he was then farther oft* than I was ; he did not ap- pear either pleased or vexed, but 1 did not hear him say an/ thing. De Reinhard landed, but I do not know that he related the circumstances of his death. Mainvilie related theia. 9f r m ,> :■*. ■ -'V avec les engages mais un peu plus loin, ^t Mons. M'Lellati n'y 4t6it pas aVee nous, mais avec les bourgeois. J'ai vu afebarquer le butin de ,K<:veny, et j'ai vu que de Reinhard avoit les clefs de son cofire et'def se^ valises, malis je ne sdis pa^ si M'Lellah l^s a vu. Certainement il ^toit assez proche pour les avoir vu, s'il avoii regards. II y avOit une valise avec des papiers, laqueile de Reinhard ouvroit, et, examinant les papiers, ii les jettoit dans la tente des bourgeois, 05 M'Lellan restoit. Mons. M'Lellan les a lu, les a dechird et bruU. Je suis sur qu'ih ^toient les papiers hors de la valise de Kcveny que Mons. M'lwellan a hi, dechir^, et brul^. ^e les ai vu, mais je ne les pouvois pas lire. De Reinhard a garde Jes bottes de Keveny, et il y avoit aussi un pain de sucre blanc qui I'appartint, qu'i) (de Keiu- hard) a mis, et je l!ai vu, dans le panier de Mons. Archy. II avoit voulu y mettre avant du the quiappar- tint a Keveny, mais M'Lellan I'empechoit, disant en ineme terns qu'il n'avoit pas besoin de cela. Je ne sais pas si M'Lellan I'a apper^u quand il y a mis le sucre. Le lendemain nous nous sommes rembar- qut^s, et Mons. M'Lellan a encore lu des papiers, et les a dechir^, mais je ne puis pas dire s'iis etoient ceux de Keveny. Avant de partir j'ai entendu Mons. Archy dire, de mettre le petit canot en feu, qui avoit ^t^ laisse pour De Reinhard et Keveny, mais je ne savois pas pourquoi. II y avoit beaucoup de sang dans le canot, mais je ne sais pas, et il n'a pas dit, pourquoi il falloit le bruler. Avant d'em- barquer, an bord de I'eau, j'ai re9u des ordres de ne pas parler de la mort de Keveny. C'etoit De Reinhard qui m'a defendu de parler de cela, et je lui ai promis que je n'en parlerois pas, mais je ne sais pas que M'Lellan ^toit 1^ dans ce moment. Q^) ( 1 * ) Mainville related them in the evening, but the gentlemen (bourgeoia) were not with us. They were not with the seivants I, et Mons. lis avec ies de Kfcvcrvy, de son coffre [»Lellahl^sa che pour les rt line valise [ ouvroit, et, s la tente des US. M'Lellan lis sur qu'ib I Kevenyque \€. ^e les ai )e Reinhard a ivoit aussi un ju'il (de Hein- lier de Mons. Lithe qui appar. :hoit, disant en le cela. Je ne ,d il y a mis le mmes rembar- des papiers, et le s'iis etoient j»ai entendu canot en feu, |d et Keveny, ^voit beaucoup pas, et il n'a Avant d'ero- is ordres de ne C'etoit De e cela, et je ,s, mais je ne moment. Q^) (but the gentlemen Iwith theseivants 37 Mr. Stuart'-^l trust your honour will observe that it was. to De Reinhard only that he promised not to speak of the death of Keveny. Chief Justice SewelL — De Reinhard; qu'est ce qu'il vous a dit, ou defendu ? Fai/c-^il m'a defendu de parler de cette affaire \i, et je lui ai dit que je n'en parlerois pas. (•') Examination resumed by the Solicitor General Fayc-^Ze ne sals pas si M'Lellan et De Reinhard se lont rencontres comme des amis. Je ne sais pas comment M'Lellan a re9u De Reinhard, mais iis (engages) but a little farther, and Mr. M'Lellan was not there with U8» but with the bourgeois. I saw Keveny 's things landed, and I saw De Reinhard have the keys to his box and trunks, but I do not know that M'Lellan saw them. Certainly he was near enough to have seen them, if he had looked. There was a trunk with papers, which De Reinhard opened, and, examining the papers, threw them into the tent of the bourgeois, where M'Lellan stayed. Mr. M^Lellan read them, and tore and burnt them. I am certain that they were the papers out of Keveny's trunk, which Mr. M'Lellan read, tore, and burnt. I saw them, but I could not read them. De Reinhard kept Keveny's boots, and there was Ukewise a loaf of white sugar that belonged to him, which he, De Reinhard, put, and I saw it, into Mr. Archy's basket. Before that he wanted to put some tea in, which belonged to Keveny, but M'Lellan prevented him, saying he had no occasion for that. I do not know whether M'Lellan perceived it when he put the sugar in. We re>embarked the next day, and Mr. M'-< Lellan read more papers and tore them ; but I can not say whether they were Keveny's. Before we went, I heard Mr. Archy tell, to i burn the small canoe which had been letl behind for De Reinhard and Keveny, but I do not know for what. There was a great deal of blood in the canoe, but I do not know, and he did not say, vhy it was to be burnt. Before embarking, at the waterside, I received orders not to speak of the death of Keveny. It was De Reiahard who forbade me to speak of that, and I promised him that I would say nothing about it ; but I do not know that M'- I Lellan was there at that moment. ( * '' ) C. J. S. — De Reinhard ; what was it that he said to you, lor what did he forbid you ? I H. F.-~He forbade me to speak of that business ; and I told Ihim that I would say nothing about it. -'> 'III 38 '1 m V' ' I'; > [>. ■ I'M m *^w m ;f:- «# ont niangd ensemble. lis voyagoient ensemble, e n'ont pas disputed, et ont rest^ ensemble dans 1 milieu du canot, corome ^ I'ordinaire, dans la barr des bourgeois* Ce soiree ie me suis couch^ avan les autres, et je ne sais s'ils couchoient ensemble Quand il fcsoit beau, on ne montoit pas la tente, e chacun couchoit de son bord. (**) Cross examination conducted by Mr, Stuart. Faye, — Quand Mons. M'Donell a rencontre Kcveny il l*a trait6 amicalemcnt, et ils ont dejeun^ ensemble. Mons. M'Donell Ta don«i6 une bouteille de vin et une bouteille de rum. Je me rappelle que j'ai dit qu*il y avoit une querelle entre La Pointe -et la Sauvage, et Josd ne parloit pas Fran9ois. C*est la coutume de ce pays pour tous les Sauvagesj d'avoir des armes. Ce n'est pas le fa9on dans canots alleges, pour les bourgeois et les engages del parler ensemble ; ni pour les hommes; de parler Punl avec I'autre, et ce canot de Mons. M'Lellan ^toitl un de I'espece qu'on appelle allege, Les bourgeoisl et les engages chacun s parlent ent^e eux dans leurl barre. Je parle, par example, avec mon camaradcl et les autres chacun avec son camarade, et^ce n*est| pas la fa9on de s'occuper de ce que les autres disentl Nager dans un canot est ouvrage assez dur, et faitl du bruit. C'est la fa9on de chanter quelquefoisl dans les canots. II y avoit cinq ou six canots quel nous avons rencontre, chaque avoit six ou sept hoifrl mes. Les bourgeois et les engages ne couchent pa( as (18) I do not know whether M'Lellan and De Reiphard ne if they were friends. I do not know how M'Lellan receivet Pe Reinhard, but they eat together. They voyaged togetherJ and did not quarrel, and they remained together in the middle ( the canoe, as usual, in the bar of the bourgeois. That evening went to bed before the others, and I do not know whether the slept together. When the weather was fine, the tent was noj pitched, and every one lay down where he liked. %■ S9 • t ensemble ct |en8®"^We, et je ne sais pas que De Reinhard couchoit * , I 4jing* le lavec les bourgeois cette soiree. II voyageoit en la iseni e ^j^^jglmeme barre du canot comme auparavant. (''>) lis' couch^ avant I Solicitor General, — i wish that taken down, iioient ensemble. I Mr. Stuart. — I am now going to ask him a ques- it pas la tente, et Ition, his answer to which may lessen my learned ■friend's anxiety on the subject. I shall ask him 7tf Stuart Bwhether there was any othc r place in the canoe * . .Bwhere he could go. The state of the country and lell a rencontrt ■ i^g ^^^^ ^^ travelling, must be taken into consider- ;t ils ont /**^J^"|, lation, and then a great deal of what the crown offi- le '^e*'*PP®\^^^"^|factorily accounted for. It is very different, travel- iing in a canoe from sailing in a vessel which has its abin, state rooms, and accommodations, according tous les ►^j*"^**S"Bto the rank and situation of its passengers. Living le fa9on dans lesm ^^^ ^jj^ country, where there is no habitation et les engages deK^ ^^^ j^^^ ^^ ^^^ Vn^xBXi, the cabin of the Savage, ^'"^A/iU ^ir^t"** ^^^®^^ different from enjoying the comforts and s. M Lei Ian e oi ■.Qnyeniences civilization affords. Here necessity e. Les bourgeoisP^ ^ \ilQ eux dans leur ec mon camarade larade, et^ce n'est le les autres disentl assez dur, et fait lanter quelquefois lU six canots que lit six ou sept honJ- entre La Fointe oit pas Fran9ois. tous les Sauvages (»») When Mr. M'Donell met Keveny, he treated him in a riendly way, and they breakfasted together. Mr. M'Donell gave m a bottle of wine and a bottle of rum. I recollect that I said at there had been a quarrel between La Pointe and the Indian, id Joseph could not speak French. It is customary* in that antry for the Indians to have arms. It is not the muae in light inoes for the gentlemen (bourgeois) and servants (engages) to onverse together, nor for the men to speak to each other, and lis canoe of Mr. M'Lellan was one of the kind which is called i^inecOUcKentpafc^'^ (aWege.) The bourgeois and the engages converse re- r Bpectively each amongst themselves in their bars. For instance, I Ik to my comrade, and the others each to his comrade, and it is t usual to mind what the others say. Paddling in a canoe i» enough work, and makes a noise. It is the custom sometimes change places in the canoes. There were five or six canoes we met with, each had six or seven men. The bourgeois and e engagls do not sleep together, and I do not know that De einhurd slept with the bourgeois that night. He voyaged in >e same bar of the canoe as before. land De Reinhard me iow MXellan receivei hey voyaged togetherJ Eether in the middle (t kois. That evening )t know whether the ine, the tent was »«] liked. '.r^ %M. if-t; b >" K jp^p JaTOteaHII ^K H H 1^^^ ^fe ■s^M* B» 4b cotiipeis the asjsociation of all ranks of persons en* gaged in traffic. Mr, Stuart^ having put a question Jbunded on this position, Jtaye, — Oui, c'^toit necessaire que De Reinhard restoit dans la barre avec les bouigeois parcequ'il ne pouvoit nager, et il n'y a pas de place entre les voyageurs. Les commis et les bourgeois marigeoient toujouis ensemble, et De Reinhard mangeoit au meaie terns que M'Lellan, mais il n'y avoit pas une table. Aux repas lis se mettent en cercle, et les bourgeois et commis mangent ensemble. Campus, le| commis sont comme les bourgeois, ils ont les Bs^es tentes et le meme feu. Lorsque le canot de De Reinhard arriva chez nous, un coup de fusil avdit ct^ tird sur une outarde ; c'est moi qui Pa plume. C^O Mr, Stuart, — I wish, that to be taken down. C'etoit necessaire, je crois, que M'Lellan prenoit De Reinhard avec lui, parceque c'est difficile pour un horn me seui de faire son vivre dans ce pays la ? Faye, — M'Lellan ne pouvoit pas laisser De Rein- hard en cet endroit ; il y seroit mort. II seroit mort de faim. II y avoit ordinairement huit engages avec les bourgeois dans un canot de cett^ espece, mais en partant des Dalles nous ^tions quinze. II y avoit ordinairement trois ou quatre bourgeois, quelquefois mais un seul. J'ai entendu M'Lellan dire qii'il ne prendroit pas Keveny dans son canot ( 3 " ) Yes, it was requisite for De Reinhard to remain in the bar with the bourgeois, because he could not paddle, and there M was no room among the voyageurs. The clerks and partner* always took their meals together, and De Reinhard took his at the same time as M'Lellan, but there was no table. At meals they sit in a circle, and the partners and clerks eat together. When encamped, the clerks are the same as the partners, thct have the same tents and the same fire. When De Reinhard s canoe came where we were, a shot fired from a gun had killed » bustard : it was I who plucked it. une boite ou" burZZ'ruir, P?P'5« ^^odltZl couW not distinguTKevL*^''"" '*'"^' that he LeHan's. nor from the pfS'Xf/'^''' ^^«"> M'! Srg>e La Crifi^WSidans I'entr.e de ,a Lap U m ' ^'" "^"s a questinnA - . ^ap'taine Lac la PJnie. ^^estionne, et amene au yf^^tf Justice Sewell n^ mom? ^^"'^^^.-Comme prisonnier ou te. Faye -Dancr*^ toke De Reinhard wkX^*'T^'^» ^ ^e^eve, that M'T «ti . himself to subset rth^^™'*"^*^*"^^ '« AfficuJt fo^ *" '*^'*"^^ H. F— IVT'r II ^* country? »"mcuit tor a man by do not recoS i^*^P.f '" "« ^anoe ^«M,mJT,? '^'^ be »ri.m„ u *'">' Ihey were Tk ™'' ™ i-ei an, but F * # # p ■ f 4S '. * ctions menes tie van t mi Lord Selkirk, qui nous 3 fait prcter scrment. Q^} JEAN BAPTISTE LA POINTE, sxvorn, and cxainined bij the Attorney General. La Foinle, — Mon nom est Jean Baptiste La rir.pagnie du Nord Ouest. J*ai connu un nom. mt Owen Keveny. Je i*ai 16911 avec Faye, et Jose, on garde pour le mener an Lac la Pluie. CV'toit dans I'automne de cette annee, la fin d'Aout ou le commencement de Septembre pendant la recolte dc la. Du Bas de la Riviere nous avons et^ au Lac des Bois, oa i>ous avons rencontre Mons. Thomson, qui nous a fait retourner, ct en bas des Dalles nous avons laisse Keveny sur une petite isle. Le Saii- vage Jose et moi avons eu une querelle et en conse- quence nous nous sommes scpares. II nous a quitte. Attorney Gemrah — Jos^ a-t-il montre un dessein (le tuer Keveny ? (•-•') ( =»» ) H. F — I was taken prscner at the entrance of the river La Croix, and La Pointe also, by Capt. D'Orsonnens ; who ex- amined us and took us to Lake La Pluie. C. J. S. — As prisoner, or as witness ? H. F. — At that time 1 did not know why, but I was taken by Capt. D'Orsonnens. I was examined by Capt. Matthey and snother, but I do not recollect his name, and the following day we were taken before my Lord Selkirk, who took our oaths. (33) L. p. — My name is Jean Baptiste La Pointe, and in the year 1816, I was in the service of the North West Company. I knew one named Owen Keveny. I received hhn, together with Faye and Joseph, under our guard, to convey him to Lake La , Pluie. It was in the autumn of that year, the end of August or j the beginri'n«:j of September, at the time of the harvest there. From Bas de la Riviere we went to the Lake of the Woods, where j we met Mr. Thomson, who made us turn back, and below the j Dalles we left Keveny on a small island. The Indian Joseph, and 1 I, had a quarrel, and in consequence we separated. He went | away from us. A. G. — Joseph, did he shew any intention of killit^g Keveny Wh T- *.: ■*,s reason so frequently aSn'dd.r- '^''?''°"' «" «ie these trials and susuhedLvor h^ *'"^ '^""«« «*• , ty«c/- Justice Se-Ju rl I-^ ^°'?°"'"- frequently said btw ~ f "'^^ '"■''^' «« I have avons SSn7l.r "cKr f ''^««' »- sachant pas le chemin n,!. Keveny, mais, ne Petite il, parceque nou /•""' '"'"'^ ^"' "«e ecarter. et pour atte.^re des clnT J"? "'' ^« °°"« JOurn,?e. nous vimes uTctZT'- . ^-^ '^'''lU'eme 'a Ilivifere, et le priso"nier M-r^r^""* ''« J^as de "v-ecDe Reinhardrc" dl- r "" ?'°'' '''^'<«ns Plusieurs ««/, An.4/ (St. ''"•'• ^^f^^nville. et canot oft ^toit M'Lelkn „^ j' '^"' ^'"'^ dans le ™ fait de Jo.r:?de Kevent"''p''' '' ^"^ """^ que Josd avoit voulu tuer If If ^* ^^^^ " '^Pondu , f lu.-, mais qu'on Vo t^^^'y et tirer son*^ fusil I ; otte a dit. « sierra salons Tn w" ' '"'" .'1"°' ^^^ ' "cela ne nous regardoit ms f- 'f ^"^ ^'''''" «* que 'ons des coups de bl „n " s '^"^, " "°"« '"^^■- Mand^barqua etnnn. ^l" '''=''' Mons.M'. Apr^ nous Cs''eSi"^'''^!,'^°"l'^'J«Perche. Mons. M'Lellan. et 1 Wr,^'. ''''"^ ^^""t de t^ttu parceque 'j I^iiftatt,. "^'l'' "°"^ «^°-t Pmoauier et Cadotte e lonf '«,«auvage. Le «trois fbis plus pmSe ',n ''f '^''''"^'•^'^^"ot. f'and Cadotte a dit "ce „' "/ '' ''*".""'' '>"''' "loi Men.. Archy a deba,w ' P"' ^•■'" '" "^^ ^nsuitc' Pemerois que^Mons 3 a e.^"^ " , ^'''''' J« 0.1 autre moi et Cado«e • ;? ? ^^"'^" ''^ ^'O" versa- fvoir eniendu. La ,nLL '*"''^'''^^P'«'=hepour. I '" "^^ ''"'""i-uH parlor de tuer ^ ' .!«•? I *■ 44 Keveny, et de se partager son butin. L un disoit qu'il auroit son chapeau, et Tautre qu*il auroit ses bottes. M'Lellan ^toit present et poiivoit I'entendre comme moi. Les bourgeois dans le canot en rioient. Chief Justice SewelL — Le prisonnier, rioit il ? La Pointe, — Oui, pour le sur, quand Mainville disoit qu*il auroit son chapeau, il rioit commc les autres. lis ont parle pour le certain plusieurs foh de I'intention de tuer Keveny, mais je ne puis pas dire combien de fois, c'^toit presque tout' leur dis- cours. (2^*) ( -* * ) L. P. — After we had separated, we went back in order to look for Keveny, but not knowing the way, we stopped at a small island, because we were afraid of losing ourselves, in order to wait for canoes. On the fourth day, we saw a canoe coming from Bas de la Riviere, and the prisoner MXellan was in it, with De Reinhard, Cadotte, Grant, Mainville and several bois bruits. Cadotte, who was in the canoe where M'Lellan was, enquired of us what we had done with Joseph and with Keveny. Faye re- plied that Joseph wanted to kill Keveny, and fire his gun at him, but that he had been prevented, upon which Cadotte said, " you blasted blackguards, it is false," and that *■* that was not our busi- ness," and that " we deserved a threshing." Upon this Mr. M'- Lellan landed, and beat us with a canoe pole. Afterwards we embarked in Mr. M'Lellan's canoe, and he told us that he had beat us because I had beat the Indian. The prisoner and Cadotte were together in the canoe, and three times nearer to each other than to me, when Cadotte said, *' it is false ;" and then Mr. Archy landed and beat us. I should think that. Mr. Archy heard the conversation between me and Cadotte ; he was near enough to have heard if. The same day I heard Mainville, Vasseur, and the hois bruits speaking about killing Keveny, and dividing liig things amongst themselves. One said that he would have his hat, and another said that he would have his boots. M'Lellan was present and might have heard as 1 did. The gentlemen in the canoe laughed at it. C. J. S. — Did the prisoner laugh ? L. P.— Yes, for certain, when Mainville said that be would have his hat, he laughed as the others did. They assuredly .spoke several times of the intention of killing Keveny, but I can not say bow often ; it was almost the only subject of their conversation. ;^ un disoit auroit ses tl'entendve J canot en ioit il ? i Mainville comtne les lusieurs fon tie puis pas )Ut* leur dis- ,t back in order we stopped at a irselves, in order ^ a canoe coming Ian was in it, with veral bois bruits, iwas, enquired ot jveny. Faye re- ire bis gun at him, Wte said, "you was not our buti- [pon tbis Mr. M'- g Afterwards we U us tbat he had isouer and Cadotte .arerto each oUier mdtbenMr.Archy . Archy beard the [s near enough to /•lie, Vasseur, and . and dividing .>» ;e would have his boota. M'Lellan Tbe gentlemen in Lid that be wouU hey assuredly spo^ I L, but 1 can not sa} iSieir conversation. 45 Chief Justice ScwelL — Le prisonnier a-t-il parld dans ce terns 1^ ? . La Fointe. — Non, pardonnez moi, non pas a ma connoissance, niais il en rioit, Apres que nous avons rencontre les gens do la Riviere Cy<>ne, j'ai entendu un bois brul^ demander, •* Ou ttoit Ke- veny," et ils disoient, ** ii est en haut des Dalles Un bois brul^ ensuite demanda, " comment fait-i. son vivre,** et apres la reponse, que quelqiiefois i] voloit, et quelquefbis il achetoit, les bois brule's ont jette un cri de joie, disant, ** il ne volera-pas plus long terns." Mons. Archy etoit la, mais je ne sais pas s'il etoit assez proche pour entendre ce discours ou non, ni s'il .^toit dans le canot a ce moment, mais s'il n'etoit pas dedans, il n*etoit pas loin, car on partit de terre tout de suite, et les canots ^toient siir le bord. II ^toit dans le canot lorsqu'on partit. Nous avons continue notre route. En bas des Dalles, avant de rencontrer les gens de la Riviere Cygne, et avant que nous sommes arrives a I'isle oh. nous avions quitt J Keveny, De Reinhard a dit ** J'en aurai bien soin de lui" (Keveny) " c'est moi qui le tuera." Apr^s etre debarques sur I'isle, nous rem- barquames, et De Reinhard n*dtant pas encore embarqu^, quelqu'un des bois brules, mais je ne connois pas qui, a dit h M'Lellan, que ce seroit De Reinhard qui tueroit Keveny, et M'Lellan a repondu " De Reinhard est trop palot, il n'est pas assez alerte pour le tuer." Keveny n'etoit pas sur Pisle ou nous I'avions quitte. De la nous nous sommes retourn^s aux Dalles, et jusques la, depuis la rencon- tre des gens de la Riviere Cygne, on fut sombre, et j je n'ai pas entendu de conversation. Nous avons trouve Keveny en haut des Dalles, campe avec les Sauvages. Nous nous sommes rembarquds, mais De Reinhard est reste avec Keveny et Mainville, pour suivre dans un petit canot. Les autresse sont 46 ^m m WBm^' ^H i^HEMk' Ik cmbarqucs avec M'Lellan dans son canot, et je I'aij euteudu dire que Mainvillt^, le Sauvage, et De Rein- hard alloient rester, pour amener Keveny. Je nel sais rien pourquoi ces hommes ^toient laisses. Keve- ny auroit bien pu etre mis dans le canot de Mons. Arcliy, inais il dit quil ne vouloit pas I'embarquer dans son canot, mais je ne sais pas pourquoi, il n'en a donne aucune raison. II s'^toit decharg^ d'une dixaine de janes de folle avoine de differentes grandeurs, qu'il a mis en cache, et il a pris le lit dc Keveny, une de ses valises, une boite couverte de peau de veau marin (seal skin,) et d'autre butin de Keveny, dans son canot. Suivant m on id^e, ou dans uion estime, le canot ctoit capable de lui prendre et son butin. 11 n'dtoit pas un petit homme, ni un| homme aussi gros comme vous (the Attorney Gene- ral) par cxemple. Apres avoir pris son butin, nous I avons marche deux ou trois lieues, et avant d'arri- ver a terre nous avons entendu un coup de fusil. I Je nc I'ai pas entendu moi meme, mais les gens du{ canot Pont entendu, et quelqu'un a demande, ** entendez vous ce coup de fusil ?" et Desmarais, h ce queje crois, disoit, **ils I'ont tu^." Je n'en- tcndois pas le coup dans ce terns. M'Lellan etoit dans ce moment entre Desmarais et moi. Desma- rais etant dans le devant du canot, et moi dans le derriere, mais je n*ai rien entendu de la part de Mons. Archy, ni des aiitres bourgeois. A ce mo- ment ils m'ont parus plus serieux qu'a I'ordinaire. Uu peu de tems apr^s, j'ai entendu moi meme un coup de fusil, et alors nous etions campus a tene. Je ne sais si Mons. Archy Ta cctendu ; il ne me Pa pas dit. Uu peu de tems apres le petit canot est paru, avec Mainville, De Reinhard, et Jose. A ce moment un autre coup fut tire, comrae ils disoient, sur une outarde, et je l*ai vu tomber dans- Tcau quand le canot approcha. Au tems de i'arrivce du 47 not, et je Tai ;, et De Rein, eveny. Je ne iaisses. Keve- lot de Mons. s Tembarquer urquoi, il n'en ichargi d'une de diflerentes a piis le lit de ,e couverte de lutre butin de ;n id^e, on dans 5 lui prendre et homnie, ni un Attorney Gene- son butin, nous t avant d'arri- coup de fusil, ^is les gens du 1 a demande, et Desmarais, u^." Je n'er.- I'Lellan etoit moi. Uesma- let moi dansle de la part de is. A ce mo- X Tordinaire. moi meme mi e. mp^s a terr [u ; il ne nie I'a etit canot est t Jose. A cc .e iis disoient, ,er dans- Teau le I'arrivce da petit canot, Mons. Archy n'avan9oit pas, et Mons. Keveny n'y ^toit pas. Je n'ai rien entendu que ceci : ^ leur arriv^e quelqnes parsonnes se sont avanc^es, et un des bois bruits a demande, " quelle nouvelle ?'* Je ne sais si M'Lellan en etoit un, mais je n'ai pas alors entendu aucune observation de la part du prisonnier. J^ ne sais s'il en a fait a d'autres. C'^toit De Reinhard qui parloit dans le canot, et non pas Mainville. Mainville a debarqu^ le butin de Keveny. Quand Mons. Archy a vu que Keveny n'y ^toit pas, je ne I'ai entendu exprimer aucune surprise, ou se mettre en colere. Quand le canot a mis a terre j'ai vu les hardes de Keveny dedans pleines de sang, et elles furent lavees devant la tente de M'I.ellan, mais il n'a rien dit la deseus, ni bien ni mal. J*ai vu un bois bruld mettre un pain de sucre blanc dans la tente de M'Lellan, et son domestique sucroit le tbe du prisonnier avec. II n'avoit pas de sucre blanc auparavant. Je n'ai pas vu les bottes de Keveny en possession des metifs, mais je les ai vu dans la tente du prisonnier. Avant ce tems le prisonnier n'avoit pas de sucre blanc. Le lendemain et apres, le prisonnier et De Reinhard ont mange ensemble, comme auparavant. Le prisonnier a dit, en ma presence, "faites bruler le canot," et Faye y ^toit, avec les autres, dans le campement, qui etoit de trente pieds carres. 11 etoit aussi pres que moi, et le prisonnier parloit aussi haut ([ue je parle. II a dit de bruler le canot, parceque tela pourroit donner quelque connoissance aux Sau- vages, ou k quelqu'autre Canadien qui pourroit passer par la, du meurtre. 11 y avoit aussi de la farine de Keveny dans un sac, qui fut embarqu^e dans le canot le lendemain, et les bois brules en ont fait des galettes, dont le monde, avec moi meme et le prisonnier, ont mang^. J*ai vu De Reinhard ouvrir lie coffre de Keveny, mais je ne sais pas s'il I'a ouvert 4S W 1 ii M'}} nvec la clef ou non. Les papieis ont 6i^ pris par le prisonnier, et je puis dire sur mon seriueiit, que les papiers etoient les papiers de Keveny parceque je les ai vu. lis ont etfe pris par le prisonnier dans la cassette qu'il a port^ lui meme contre le feu. De Reinhard ne prenoit pas les papiers hors de la cas- sette, et M'Lellan I'a jwrte lui meme, et apr^s que partie du monde etoit couch(^e, il a examine les papiers et les a jett^ dans le feu i mesure qu'il les examiuoit. 11 n'etoit pas dans sa tente, raais contre le feu, et De Reinhard n'y ^toit pas alors. C'^toit la cassette de Mons. Keveny, je puis dire sur mon serment. Mons. M'Lellan n'avoit pas brule tous les papiers, mais le lendemain il en a encc^e lu dans le canot. 11 a lu un, et dit aux bois brules, •• c'est bien bon que Mons. Keveny soit mort, parceque," iTiontrant le papier, il leur dit que ** Keveny avoit le pouvoir d'avoir des troupes du Roi pour aller prendre vos terres a la Riviere Rouge.** Quelqu*un des bois bruits a dit "c'est done un de ses papiers?" et il a repoftdu, **oui ;*' j'ai vu Mons. Archy de- truire les papiers quand il tHoit dans le canot. 11 les a jett6 dans la fleuve avec des pierres pour les enfoncer. Avant de partir le matin, M'LelJan m'a dit de ne pas parler de ce meurtre la, disant, " prenez gaide de parler du meurtre de Mons. Keveny, parceque vous autres seriez punis par nous." JI nous a dit aussi que le crime est cgalement a nous et que nous serious punis, et Cadotte nous a dit que nous serious pendus. Plusieurs fois apr^s, en chemin, I il nous a defendu de parler du meurtre de Mens. Keveny, et encore quand nous fumes rendus au Lac la Pluie. C'etoit M'Lellan qui dtoit le maitrej dans le canot. De Reinhard a gardd ses arraes dans] le canot. Mons. Archy m*a parui en colere auj terns qu0 t^ous avions quitt6 Keveny sur la petitJ isle, et qu'il pensoit qu'il avoit echapp^ a ses gensi ;:i *9 It^prisparle I mais je n*ai jamais entendu aucun repfoche, ni lent, que ^^^ I expression de colere, coDtre De Reinhard, ni Main- parceque je I ville, ni contre Jos^. lis ont M mieux que nous mmer dans la I autres, car ii neleur apas donn^ des coups de baton le feu< l^e I comn^e a nous autres^ c'est k diiv k Faye et k 318 de la cas- | mol. («) et apres que pxatnin^ les ■ (*•) C. J. S — Did the prisoner gay any thipg at that time? * ^ ,-\ ip, I L. P.— i-No, excuse me, not to my knowledge, but he laughed sure qu u ics ■ ^ j^^ ^^^^^ ^^ j^^^ ^^^ ^^^^ ^1^^ people of Swan River, I heard te, mais contre ■ a half breed enquire, "where was Keveny," and they said, *« he alors. C'^toit ■ is abwe the Dailes." A half breed then asiced, "how does he A' ^ siir mon I 8®' '"* living," and after the answer was given that sometimes he aire su ^ ■ ^^^1^^ ^^^ sometimes he bought, the half breeds uttered a cry of pas brule tOUS ■ .^^ exclaming, " he shall not steal much longer." Mr. Archy cncC:'e lu dans ■ was there, but I do not know whether he was near enough to hear 1 rules '* c'est I this conversation or not, nor whether he was in the canoe at that ^^ * pnne ** I '"'*'"**» ^^» *^**® ^®* °®* *° *^» ^® ^^ "°^ ^^^ ®^» ^*^^ w® imme- 3rt, parceq » ■ aiately left the shore, and the canoes were at the water^s edge. ** Keveny avoit ■ ug ^^g in |he canoe when we pushed o£F. We continued our Roi pour aller I route. Below the Dalles, before we met the people of Swan »> Ouelou'un I ^'*^'» ^^^ before we came to the ii^and n^here we had left Keveny, re. '^u 4 ^^^ ■ jjg Reinhard said " I will take good care of him (Keveny) " it de ses papiers . ■ j^ j ^j^^ ^iU jjiU him." After having landed on the island, we ons. Archy de- I re-embturked, and De Reinhard not being yet on board, one of' {p canot. II I ^^ half-breeds, but I do not know which, said to M'Lellan, that ^^' iiT les ■'*'^ow^d ^^ D® Reinhard who would kill Keveny, and M'Lellau pierres pou ^ ■ ^^^^rg ^^ «< Dq Reinhard is too much of a milksop, he is not alert n M'LelJan m a ■ enough to kill him." Keveny was not on the island where we disant •'preneZ ■lad left him. Thence we returned to the Dalles, and from the ^' \if * Keveny Btime we met the people of Swan River, down to the time we got MonS. ^^ J I there, the people were dull, and I heard no conversation amongst J par nous. ^^ I them. We found Keveny abpve the Dalles, encamped with the (ralement a nous ■ Indians. We re-embarked, but De Reinhard remained with; & - - <)U niiplKi>vpnvanfl IVfainville. to follow in a small canoe. The others ?f nous a dit que 1 Keveny and Mainville, to follow i tte Tio thiamin lembarked with M'Lellan in his canoe, and I heard him say, that apr^S, en CnenUUi Hi^„;„ -„^ ^l,^ Itwlinn. nnrl rie " ' eurtre de Mons. apr^S, en cne • ■Mainville, the Indian^ and De Heinhard, were going to remain ^ ~ ''"'* |behind, in order to convey Keveny. I know nothing of why ese men were left. Keveny might have been put in Mr. Archy 's 11^, but he said, that he would not take him in hi^ canoe, but do not know why, he gave no reason for it. He had lightened t by unloading ten jars of wild rice of various sizes, which he creted, and took Keveny's bedding, one of his trunks, a box )vered with sealskin, and other things of Keveny's in his canoe, ccordit^ to my opinion, as far as 1 ^an judge, the canoe was G fumes rendus au aui ^toit le maitre rd^ ses armes dans aru en colere au! eny sur la petit«| .happ^ a ses gens, I,. I .til" 50 H ^^S K'^« v'^EW' «Bnl t ^Mm ^^w 1 1 V ,/t // being six o\lock the Court were adjourned till to-morrow at 8 o'clock^ A, Af. the Vhie/' Justice or- dering La Poink to lie committed to the care qf Mr, Gauvin the constable. nbic to hold him and his baggage. He was not a little man, nor was he so large a man as you for instance, (speaking of the At- torncy General.) After having tiiken these things on board, \re proceeded two or three leagues, and before landing we heard the report of a gun. I did not hear it myself, but the people in the canoe heard it, and some one asked, *' did you hear that gun ?" and Desmarais, I believe, said ** they have killed him." I did not hear the report that time. MXellan was at that time between Desmarais and me. Desmarais being in the head of the canoe, and I in the stem, but I did not hear any thing said by Mr. Archy» or by the other gentic:men. At that juncture they ap- peered to mc to be mure serious than usual. A short time after- wards, 1 heard the report of a gun myself, and we were then encamped on shore. I do not know v nether Mr. Archy heard it ; he did not tell me so. A little while afterwards the small canoe made its appearance, witli Maikiville, De Reinhard, and Joseph. At that moment another gun was fired, as they said, at a bustard, and I saw it fall into the water as the caooe approached. At the time of the arrival of the small canoe Mr. Arcny did not come forward, and Mr. Kcveny was not tliere. I heara nothing but this : on their arrival some persons advanced, and one of the half-breeds asked, ** what rews ?" I do not know whether M'- Lellan was one of them, but I did not then hear the prisoner make any observation. I do not know whether he made any to others. It was De Reinhard who spoke in the canoe and not Mainville. Mainville landed Keveny's things. When Mr. Archj saw that Kcveny was not there, I did not near him express any surprise, or put himself in a passion. When the canoe put ashore, I saw Keveny's clothes in it, full of blood, and they were washed before M'Lellan's tent, but he said nothing about it, neitlier good nor bad. I saw a half breed, put a loaf of white sugar into MXellan's tent, and his servant sweetened the prisoner's tea with it. He had no white sugar before. I did not see Keveny's boots in posstssion of the half-breeds, but I saw them in the prisoner's tent. Before that time the prisoner had no white sugar. The following day and afterwards, the prisoner and De Reinhard eat their meals together, as before. The prisoner said in my presence, **■ burn the canoe," and Faye was there, as well as the others, in j the camp, which was thirty feet square. He was as near as 1 1 was, and the prisoner spoke as loud as I speak. He said the canoe wa::> to be burnt, because it might give some knowledge to 51 djoumed till f Justice or- care qf Mr. a little man. ^^^ iking of the At- igs onboard, we ing we heard the he people in the hear that gun ? led him." 1 ^'^ that time between Bad of the canoe, ing said by Mr. juncture they ap- L short tiwe after. ,nd we were then Mr. Archy heard erwards the small De Reinhard, and ed, as they said, at Saturdai/y ' Mh Jim 1818. PRESENT AS BEFOUE. The Jury having been called over, and being all re* sent, the cross ej:amination of La Pointe waa ju- ducted by Mr. Vanfelson. La Pointe^-^J* ^tois dans le canot dc Mons. Ca- dotte, (et Mons. M'Doneil dtoit \k aussi) enbas dcs Dalles, quand, pour la premiere fois, j'ai rencontre Mons. Keveny. II ^toit venu avec cinq bois-brul^s» deux de qui ^toient nomm^s Matin et Vassalle. the Indians, or to some Canadian, who might be passing by, of the murder. There was also some flour of Keveny 's in a bag» which was put on board the canoe the next day, and the hair- breeds made cakes of it, of which all the people, myself and the prisoner included, partook. I saw De Reinhard open Keveny's chest, but I do not know whether he opened it with the key or not. The papers were taken by the prisoner, and I can say upon my oath, that the papers were Keveny's papers because I saw them. They were taken by the prisoner m the box, which he carried himself to the fire. De Reinhard did not take the papers out of the box, and M'Lellan carried it himself, and after part of the people were gone to bed, he examined the papers, and threw tnem into the fire in succession as he examined them. He was not in his tent, but at the fire, and De Reinhard was not there then. 1 can say up«n my oath it was Mr. Keveny's box. Mr. M'Lellan had not burnt all the papers, but on the Allowing day he was still reading some of them in the canoe. He read one and said to the half-bieeds, " it is very well that Mr. Keveny is dead, because," shewing the paper, he told them that, " Keveny had the power of getting King's troops to go and take your lands at Red River." One of the half-breeds said, *' that is one of his papers then?" and he answered,^* yes." I saw Mr. Archy deatjroy the papers when he was in the canoe, he threw them into the river with stones to make them sink. Before starting in the morniog, M'Lellan told me not to speak of this murder, saying, ''take care not to speak of the murder of Mr. Keveny, for you and the rest of you would be punished by us." He said also mat the crime was equally attributable to us, and that we should be punished, and Cadotte told us that we should be hung. Several liines afterwards on the way, be forbade ut to mention the murder of 'l^i i-.u mm ilk t y^ /i-f m ^^^^ Ih' if i ^'' H i 4* . mt p 1 '1 sf m m ■f i 'i 1 ! u:';::?; ', !, ^£j. m " ^■i :*: i. m^' ^e Mons. McDonell se disoit un des associds du Nord Quest, et avoit ie commandement de notre canot. Mons. Keveny avoit les fers aux mains, et Mons. Mcroneii les lui fit oter. lis ont parl^ et mang^ ensemble, mais, comme ils ne parloient pas Fran9ois, je ne les ai compris. Aprils, Mons. McDonell I'envoyoit avec nous autres, et gardoit les bois-brulds ci Bas de la Riviere. Quand je dis nous autres, je veux dire moi, Faye, et Josd Ie Sauvage nomme Perdrix Blanche. Mons. McDon. ell I'envoyoit au Lac la Pluie, et c'est Ie chemin au Grand Portage, et la route pour venir ici. Quand Mons. McDonell nous Pa donn6 en charge, nous avons fait des objections parceque nous n'avions pas un guide, mais Mons. McDonell nous a dit que Je Sauvage seroit notre guide, vu qu'il connoissoit bienle chemin- 11 nous repugnoit de venir avec Jos^, qui ne parloit pas Fran9ois9 mais Mons. Mc* Donell nous a dit de laisser faire Jos^ ce qu'il vou« droit, car autrement il nous laisserott dans Ie che- min. Avant de partir McDonell I'a donq^ deux bputeilles de boisson. J'ai bien compris quei comme notre guide, Jos^ dtoit Ie roaitre du canot, et que quand il voudroit debarquer il falloit Ie iaire. Faye et n)oi ^tions novices alors dans ce pays, et ^vions peur des Sauvages. Nous partimes et laissames Keveny sur une isle en bas des Dalles, mais non pas tout de suite* Nous ne lui avons laiss6 aucun fusil, ni de quoi faire de feu^ et je ne saia qu'il en avoit. Mr. Keveny) and again when we were come to Lake La Pluie. It wag M'Lellan who was master in the canoe. De Reinhan! retained his arms in the canoe. Mr. Ardiy, appeared to mc lu be in a passion at the time we had left Keveny on the small island, and when he thought that he had escaped ffom liis people, -but I never heard any reproches, or any expressions of anger, either against De Keinhatd, or Mainville, or againsl Jbseph. They were hetter off than we were, for they were not beat as wc were, that |s Faye and me. 5$ es as8oci<$8 du nent de notre aux mains, et [Is ont parl^ ei e parloient pas Apr(i8, Mons. tres, etgardoit Quand je dis ^e, et Jo8<5 le Mons. McDon. St le chemin au [lir ici. Quand ti charge, nous i nouB n'avions 1 nous a dit que qu'il connoissoit t de venir avec mais Mens. Mc s^ ce qu'il vou, ^oit dans le che- Ta donn6 deux pris que, comme u canot, et que tlefaire. Faye pays, et ^vions les et laissames |es, mais non pas iiss6 aucun fusil, |a qu'il en avoit. Lake La ?!«*«. jioe. De Reinharcl fappearedto me lo Vonthesmallislan^, ^m his people, but [ns of anger, either Weph. Theywjre tt 08 we were, tnat n nV avoit penonne sur I'isle ; plus loin, en haut des Dalles, a deux ou trois Jieues, il y avoit des Sauvages. 8'il savoit nager il pouvoit «n sortir, n'ayant pas loin ^ la terre tcrme. II y avoit de bois, et il auroit pu faire an radeau. II n'avoit pas une bache, ni une scie. C'cst diiBcile c^rtainement de faire un radeau, n' ay ant pas de liache ni de scie. I^es canots passent par Id, ct il auroit pu y embar- quer. Apres I'avoir quitt6 nous retourn&mes aux Dalles avec Jos^, et if a ach<^t^ un canot, et nous avons pass^, en re-descendant, au large de Pisle oi!k nous avions laiss6 Keveny. II y avoit un pavilion U, mais je n'y ai pas vu une tente. Quand j'y ai vu an pavilion, nous avons voulu aller d terre pour le reprendre, mais le Sauvage ne vouloit pas, disant que le canot ^toit trop petit, et il nous disoit, nage, na^^— Ayant cass6 le canot que nous avions aupar- avant, le Sauvage avoit achet^ un plus petit que I'au- tre. Je n'entendois pas la langue Sauvage a ce terns, mais il nous disoit, nage, nage, et non s dpnnoit des coups d'aviron par dessus le march^ -, il nous ver- geoit souvent, Le Sauvage ne parloit pas Francois ; le seul mot qu'il dit, ^toit, nage, nage, Nous lui avons fait des signes pour aller d terre et de ne pas nager i ce terns, mais il faisoit signe de la t^te et disoit, qiut'Ouit qita-om, (que veut dire non^ a ce qu'on m'avoit dit avant,) et quand nous avons nagd it gouvemoit le canot au large de I'isle ou ^toit Kev- eny. A la chute des Esclaves nous avons mis k, I terre ; c'est un portage, et c'est Id que le Sauvage nous a quitt^. J'ai eu difficult^ avec Jos^, et nous nous sommes battus, et il nous a laiss^. Nous vou- lions manger, mais le Sauvage ne vouloit pas nous permettre. Jos^ a voulu tirer sur moi, mais Faye lui a 6te son fusil. II a pris un aviron pour me Ifrapper, et je lui ai donn^ un coup de bois. Apr^s Ique Faye lui eut 6t^ son fusil, on vit qu'il n'avoit pas de pierrey mais je ne le savois pas auparavant. 54, •>i < t Is- MS' JJi ^h. 'Si •U «^:; viv a ce que je me souviens. Jos^ se sauva dans les bois, on I'appelloit, mais il grattoit, (c'est d dire il alloit bien vite.) Nous partimes avec I'intention de retourner a Keveny, mais comme il y avoit bien des isles, nous creignames de nous ^carter, et nous avons reste a tone pour attendre des canots. Le prisonnier a la barre nous y trouva, et Mons. Cadotte nous de- manda ce que nous faisions la, et je lui ai dit comment nous etions 1^. Mons. Archy alors a debarque et nous a battu. Mons. Archy a debarque le premier, et c'etoit assurement avant que Mons, Archy debar- quoit, que je Pai racont^ a Mons. Cadotte, et Mons. Cadotte ensuite disoit, " vous mentez, ce n'est pas vrai," et done Mons. Archy m'a battu, mais il ne dit pas pour quoi, et je me sauvois. II disoit, ** mon ♦' sacre gueux, tu es dans une isle, et je t'attrapperai "bien." Avant que M'Lellan a debarqu^ nous avons dit a Cadotte, et aux autres, que le Sauvage qu*on nous avoit donn^, avoit voulu tirer sur Kev- eny, et qu'il avoit voulu tirer sur moi, et nous avoit maltraite le long du chemin. Cadotte nous montra le Sauvage, et nous a dit " ce n'etoit pas vrai, que c'^toit nous qui Pavions battu." (2*^) ( ^° ) I was in Mr. Cadotte's canoe, (and Mr. Macdonell wai there likewise,) below the Dahes, when 1 met Mr. Keven}'for the first time. He came with five half-breeds, two of whom were called Matin and Vassalle. This Mr. Macdonell, called himself one of the North West Partners, and had the command of our ca* noe. Mr. Keveny had handcu£& on, and Mr. Macdonell caused them to be taken off. They conversed and eat together. Af- terwards Mr. Macdonell sent him with us, and kept the half breeds at Bas de la Riviere. When I say usy I mean, myself, Faye, and .Joseph the Indian, called White Partridge. Mr. Macdonell sent him to Lake La Pluie, and that is the road to the Grand Portage, and the way to come hither. Wh,en Mr. Macdonell gave him in ( Iiarge to us, we made objections because we had no guide, but Mr. Macdonell told us that the Indian would be our guide, since he was well acquainted with the way. We were averse to going with Joseph, who did not speak French, but Mr. Macdonell told lis to let Joseph do as he liked, for if we did not; he would leave 55 iauva dans les (c'est a dire il : I'iiitention de f avoit bien des r, et nous avons , Le prisonnier adotte nous de- taidit comment adebarque et cque le premier, IS. Archy debar- idotte, et Mons. ez, cen'estpas )attu, maisilne II disoit, " men it je t'attrapperai , debarqu^ nous que le Sauvage lu tirer sur Key- loi, et nous avoit [otte nous montra Loit pas vrai, que I) I Mr. Macdonell wai ItMr.Kevenyforthe II two of whom were tonell, called himself command of our ca- r. Macdonell caused eat together. At- Q kept the half-breeds In, myself, Faye, and ' Mr. Macdonell sent 10 the Grand Portage, kcdonell gave him m V had no guide, but Id be our guide, since ■ vere averse to going Mr. Macdonell told not, he would leave Mr. Vanfelson.'^Je voudrois vous demander suf voire serment, au terns que Mons. Cadotte vous a montre le Sauvage, n'avez vous pas dit que c'^toit Faye qui I'avoit battu, et si Faye n'a pas dit que c'etoit vous, et si vous ne I'avez pas contradit. us on the way. Before we departed Macdonell gave hinr. two bottles of liquor. I fully understood that, being our guide, Jo- seph was the master of the canoe, and that, when he wanted to put ashore, we were to do it. Faye and I were then novices in that country, and were afraid of the Indians. We departed and left Keveny on an island below the Dalles, but not immediately. We left him no gun, nor any thing wherewith to make a fire, and I do not know whether he had any materials for the pur].'ose. There was no body on the island. Farther on, above the Dalles, at two or three leagues distance, there were Indians. If he could iwira he might get away from the island, for it was not far from the main land. There was wood there, and he might have made a rail. He had no axe, nor any saw. It would certainly be difficult to construct a raft without either an axe or a saw. The caooes pass that way, and he might have embarked on board of diem. After having left him, we returned to the Dalles with Joseph, and he purchased a canoe, and we passed, in going down, at a distance from the island where we had left Keveny. There was a flag there, but I did not see any tent. When I saw there was a flag, we wanted to go on shore to take him on board again, but the Indian would not consent, saying that the canoe was too tmall, and he said to us, paddle, paddle. Having broken the ca- noe which we before had, the Indian bought a smaller one than the other. I did not understand the Indian language at that time, but he said, paddle, paddle, and he bestowed upon us blows with a paddle into the bargain, he often flogged us. ' The Indian did not speak French ; the only word which he said was, paddle, jaddle. We made signs to him to go on shore, and not to paddle then, but he made a sign with his head, and said, qua-oui, qua-oui, (which signifies, no^ as had before been told me, ) and when we paddled he steered the canoe at a distance from the island where Keveny was. At the Slave Fall we landed : it is a portage, and I it was there that the Indian quitted us. We wanted to dine, but I the Indian would not permit us. Joseph wanted to shoot at me, I but Faye took away his gun from him. He took a paddle to I strike me, and I gave him a blow with a piece of wood. After , Faye had taken away his gun, we saw that it had no flint, but I did not know of that before, as far as I can recollect. Joseph ran away into the woods, we called after him, but he scratched on, (that is to say, he went very fast. ) We departed with an m mi. .1 ..> - - • lif.' ■ hi*-. if IS E M Si 'I'M 9 "fc ''S ^6 Xtf Poin/^.— Now ; je n'ai pas dit alors que c*^- toit Faye qui I'a battu. J'ai dit que c'etoit inoi qui Pavoit battu, parcequ'il a tire sur moi, et je n'ai pas entendu que Faye a dit que c'dtoit rooi. (^') Mr, Vanfekon reminding La Pomte that he was upon his oath, again put the question^ and received a similar anmer* Chief Justice SewelL — Je voudrois savoir du te- moin, si a l*ordinaire les gens d'un canot conversent general ement, ou les bourgeois entre eux et les en- gages entre eux, et non pas autrement? La Pointe. — A I'ordinaire les bourgeois ne con- versent pas avec les engages dans les canots, mais les bourgeois parlent ensemble et les engages entre eux. Excepts pour les affaires les bourgeois ne parlent pas avec les engages dans les canots. (^8) intention of returning to Keveny, but as there were many islandi, we were afraid of losing ourselves, and we remained on akiort to wait for canoes. The prisoner at the bar found us there, and Mr. Cadotte asked us, what we were doing there, and 1 told him how it came that we were there. Mr. Archy then came ashore and beat us. Mr. Archy landed the first, and it wa» certainly before Mr. Archy landed, that I related it to Mr. Cadotte, and Mr. Cadotte thtn said, ** you lie, it is not true," and then Mr. Archy beat me, but he did not say why, and I ran away. He said, *'you damned rascal, you are on an island and I shall soon catch you." Before M'Lellan landed, we said to Cadotte, and to the others, that the Indian who had been given to us, wanted to shoot Keveny, and that he wanted to shoot me, and had maltreated ug aU the way. Cadotte pointed out the Ipdian to us, and said to us ^' that IS false," and that it was us who had beat him. ( 2 ' ) Mr. V. F. — I desire to ask you, upon your oath, at the time that Mr. Cadotte pointed out the Indian to you, did you not say that it was Faye who had beat him, and whether Faye did not say that it was you, and whether you did not contradict it ? L. P. — No, I did not then say that it was Faye who had beat i him. I said that it was I who had beat him, because he fired atj me ; and I did not hear Faye say that it was I. (3 8) C. J. S. — I wish to know from the witness, whether it I is usual for the people on board a canoe, to converse generally I together, or the gentlemen (bourgeois) amongst themselves, anaf the servants (engag6s) amongst themselves, and not otherwise? ^7 ^f^'J ^^^minaiion resumed by Mr v ^rr f out de cauot, qu'H d2e„T wf '." «"'''« °" -" jJe les donner. Quand „1 ^"?'' ''« <>»* besoin pas aise de nage et de pari TH'^'^K. ^' '^'^t Parle plus que^deux fbfs eel t °"; ^""^ ''^«»s puis pas dire combien M " ^T™^^' '"ais je ne Parl^ de le tuer! eUoAn,^ "^'".^ ^' Masseur ont ny ils etoient ceux ^ riff'} ^' *"^' ^ev"! butin- Mainville disoit m „ ^"'.''^ P^'tager son fou ses bottes. B'autres bot bn^"''""'' *1"''^ «"- je ne connois pas Jeurs ZmT pZ"^' °"* P^"-^^' ^ais sa couverte, un autre ses^nil"" ^"^'^ <1»''J auroit f sais pas en queUe nalp i ''^ ^'''*™°^'«- Je Je ne sais pas si j'" tofs devant '''"'°' J'^'°'« ^^oZ ne me rappelle aufX.f . ?" ^" »''"^''e, et ie f ne puis pas dire oi S's nf "' '*?''"*' >"«•■« i;omn,eschangentbie„LmSen,T ''°'''*- ^^« J etois contre ie gouverna I fl "''^^ant. «ais si f O"'. niais je nl suis pal' sur si TvJ • ' ''^' ''°"^- gouvemail, ni si j'^ois en avl. -^ ^°"' centre ie J'etois en avant il y avoit I , °" "" '"■"' --e- Si cot6 en ani^re de raoT CW^ '""^'"^ ^^ <^'>aque dutroisiemerang. ™i j'etois Lm 'V ""^"'^ '^" "" y ayoit trois hommes de Saa ° l".'^ go"vernai). il ■no.. J>vois presqtie toSs m" '' ,f " ^^^"' ''« !^i3e„VL iacr^^titu'et:.:^-^' b jh/can^''^^^^^^^^^^ -■* the en,„,,, peai. 10 Uieengagts „ Uie cuoe.. ds m , .'I 1,1 v^' r m 6t,-j-. r>:;-- ^fv^. '!'.* :-«*,. II changeoit sa place bien souvetit, mais je ne me souviens pas s'il avoit change plus souvent que moi. (^9) Chief Jtistice ScvtelL — I wish, Mr. Vanfelson, to put one question to him, as I think it will settle where his station was. Ecoutez temoin ! Quand vous avez nag6 en avant du canot, fut il votre dos ou votre face qui ^toit contre le prisonnier ? Souvenez vous pour un mo- ment. La Pointe, — C'^toit mon dos assurement quand je nageois en avant du canot. (^*^) (30) It is generally to the guide, or to the man at at the stern of the canoe that they give their orders. It is to him they address their orders when they have occasion to give any. When we embark- ed with the prisoner, there were fifteen m the canoe, and there were nine or ten of us who paddled. It is not easy to paddle and to talk at the same time. We talked more than twice that day, but I can not say how often. Mainville and Vasseur talked of killing him ; and when the talk was about killing Kevcny, it was they who spoke of dividing his property. Mamville said that if he killed him he would have his hat ; Vasseur that he would have his boots. Other half breeds joined in the conversation, but I am unacquaint- ed with their names. One said he would have his blanket, another his leather breeches. I do not know in what part of the canoe I then was. I do not know whether I was at the head, or in the stern, and I do not recollect who was in the same bar with me. I paddled some times behind, and sometimes before, but I can not say where 1 was then situated. The men often change pla- ces in paddling, but if I was next to th^ steersman, there were three ranks ofmen on each side between me and tlie bourgeois, but I am not sure that I was next to the steersman, nor whether I was before or behind. If I was before, there were two men on each side behind me. That is to say that I should have been one of the third rank. If I was next to the steersmen, there were three men on each side before me. I had almost always MXellan in front of me, sometimes facing me fully, and sometimes side^ay^ He very often changed his place, but I do not know whether he changed oftener than I did. (="») C. J. S Listen, witness! when you paddled in tliei forepart of the canoe, was it your back, or your face that was | turned towards the prisoner ? recollect yourself an instant. j "^ L. P — It was my back most certainly when I paddled in tkej forepart of the canoe. irement quaiid 59 ^^f Justice Sffwell -^li^ present ^ ve,y „,aS~S„f?™« to n.e to be at the jury. We therefore tried ^ ^ ."' P^t^^^en of wears to us to establish ^trT^^^' ^«^' --^ i' eny. et ils I'ont 4 gommer T"' ^ ™«tre Kev! <* qu'ils disoient^P^'al af„> •'.'•"'?"•■« P^ dire ment.(»0 * ''^ P'"''"ent tranquiJe. i^ntef Justice Seweil—Xif, d*^.. »«• • <3e cette conversation et?^ £ ^T^'l ^" *««* ««/hapeau. il Stlv^^ff '','''\l"'^' ^^oit mediatement en avant Oua^w v''^"" '^ "^"S ™- furoit ses bottes, il "toit 111 ^^""^ * dit qu'il ifis bourgeois. " '"''"'' ^^ "^me barre av6c Chief Justice Sewett no«„ i le prisonnier M'lST' '^^^^^^ J'*™ avec geit^lf^^^-^"'' danslan>.me barre. etil „«. m f *f • ■ ■ ,i.--L m P it**." ■ » i 60 3/r. Vanfelson, — Est il commun pour les voya- geurs de nager dans la mdme barre avec les bour- geois ? La Fointe. — Oui, quelquefois, quand le canot est trop charge. Je suis certain que Vasseur ^toit la, et Mainville ^toit sur une barre en avant de moi, et centre les bourgeois. Dans les canots alleges, de la grandeur de celni du prison nier, il y a ordinaire- ment huit nageurs, et deux ou trois bourgeois, mais nous etions dans ce canot, qui'nze ; dix nageurs, quatre bourgeois, et Jos^ qui ne travailloit pas. An terns que Vasseur disoit qu'il auroit ses bottes, il ^toit dans la meme barre avec les bourgeois, et tournoit la tete vers le derriere du canot, 06 ^toit Mainville, et ordinairement il avoit son visage con- tre iDoi. Mr. Vanfelson. — N'avez vous pas, au terns que vous avez trouv^ Keveny, entendu De Reinhard dire que comme le canot de Mons. M'Lellan etoit trOp charge, qu'il n'auroit soin, et qu'il resteroit avec Keveny, ou n'avez vous pas entendu Mons. M'Lellan due a De Reinhard, ** comme le canot est trop charge, et vu que vous I'avez pris prison- nier, vous avez mieux rester avec lui, et nous suivre dans le petit canot ?" Rappellez vous bien que vous etes sur votre serment. La Fointe — ^Je me le rappelle bien. Je n'ai pas entendu* De Reinhard dire a ce tems, qu'il n'auroit pas soin, qu'il I'avoit pris, et qu'il resteroit, et je n'ai pas entendu Mons. Archy dire qu'il ne I'avoit pas pris, et couime De Reinhard I'avoit pris il avoit mieux de rester. Mr. Vanfelson. — En quelle partie du canot poii- viez vous mettre Keveny tt trois autres, en meme tems que Vasseur etoit dans la meme barre avec les bourgeois? ir les voya- rec les bour- l le canot est seur etoitla, ,nt de moi, et alleges, de la y a ordinaire- ourgeois, mais , dix nageurs, illoitpas. Au ses bottes, il bourgeois, et :anot, oii ^toit son visage con- J, au terns que X De Reinhard M'Lellan etoit qu'il resteroit eutendu Mens. -omme le canot Lvez pris prison- ii et n<^us suivre IS bitn que vou8 Je n'ai pas s, qu'il «'a"^^!^ resteroit, et jc qu'il ne Favoit .voit pris il avoit le du canot po«- uitres, en roetne le barre avec les en 61 La Poinie, — On auroit pu mettrc IfeVeny entre les deux rangs de nageurs, inais ce n'est pas a I'or- dinaire qu*on met des gens entre les nageurs. Ou bien au fonds du canot, ou certainement il n'auroit pas 6t6 bien a son aise, mais il pourroit s*y tenir. Mr. Vanfelson, — Done, si je vous comprends, vous voulez dire, sur votre serment, que dans un canot de la longueur de celui la, avec deja quinze hommes et leur butin dedans, vous pouviez, sans danger, prendre encore De Reinhard, et trois au- tres, avec leur butin, et faire la traverse ? sur votre serment est il vrai ? La Pointe, — ^Je n'entendois pas dire que les qua- tre pouvient y aller ; mais si on eiit pris Keveny et son butin alors, il auroit etc dangeieux de faire la grande traverse, s'il eiU vente, avec un canot aussi charge, mais jusqu'a la, cela auroit pu alier. C'est dangereux de traverser le lac avec des vents. Le soir, au campement, je suis bien certain, que je n'ai pas vu de feu devant la tente du prisonnier. S'il y avoit un bon feu devant la tente des bourgeois, comnie a i'ordinaire, je Taurois bien vu, pour le cer- tain. Quand le petit canot est ariive a terre, Mons, M'Lellan etoit a la distance de cette chambre, ou nviron, ou peut-6tre moins, a ce que je pense ; ilusieurs se sont avances, mais je ne sais pas si M'- Han y etoit, ni s*il a dit quelque chose. Je ne mis pas dire qu'ils (De Reinhard et M'Lellan) ont ange ensemble ce soir, mais le lendemain matin 8 ont dejeune ensemble, et pendant le restant de a route ils ont mang^ ensemble, jusqu'au Lac la luie, et au Lac la Pluie. Mr, Vanfelson, — Les bourgeois sont ils ordinaire- entp^le mele, avec les voyageurs et bois brules, u dans leur tehte avec les commis et interpretes ? La Pointe. — ^Je ne puis pas dire que les bourgeois les engages sont ensemble d i'ordinaire. Les m 61 mt M itip m •■■:■ ■■'(}" ... y IP;'.-' !fe 'In! ii"* "i J bourgeois et com mis mangeoient ensemble avec les interpretes, et les engages mangeoient an feu, mais ils viennent d'un feu k I'autre, et badinent avec les engages. Mr. Vanfelson.-'-'Je vous demande si, contre la Yolontd des bois brules et Sauvages, Mons. M'Lellan auroit pu prendre De Reinhard, Mainville, et Jos^ prisonniers ? La Pointe. — Si les bois brules et les Sauvages s*y fussent opposes, le prisonnier n'auroit pas pu pren. dre De Reinhard, ou Mainville, ou Josd, quand il auroit voulu le faire. (^^) ^33^ Mr. V. F. — Is it usual for the voyagers to paddle in the same bar with the bourgeois ? L. P. — Yes, sometimes, when the canoe is overloaded. I am certain that Vasseur was there, and Mainville was on a bar before me, and next to the bourgeois. In light canoes, of the size of that of the prisoner, there are generally eight paddlers, and tvo or three bourgeois, but there were fifteen of us in that canoe ; ten paddlers, four bourgeois, and Joseph, who did not work. At the time that Vasseur said that he would have his boots, he vas in the same bar with the bourgeois, and turned his head towards the stern of the canoe, where. Mainville was, and he generally \m his face towards me. Mr. V. F. — Did you not, at the time you found Keveny, hear De Reinhard say, that as Mr. MXcllan's canoe was too much loaded, he would not care, and that he would remain with Keve* ny, or did you not hear Mr. M'Lellan say to De Reinhard, the canoe is overloaded, and it was you who took him prisoner, you had better stay with him, and follow us in tlie small canoe?" Be sure to remember that you are upon your oath. L. P. — I certainly remember tliat I am. I did not hear De Reinhard say at that time, that he would not care, that he had taken him, and that he would stop ; and I did not hear Mr. Archy say that he had not taken him, and that as De Reinhard had tzucen him, he had better remain. Mr. V. F. — In what part of the canoe could yon have put Keveny and three others, whilst Vasseur was in the same bar witb the bourgeois. L. P. — Keveny might have been put between the two ranks oJ paddlers, but il; is not usual to put aoy body between the pad dlcrs. Or else in the bottom of the canoe, where he .would cer tainly hot have been at his ease, but he might Kav^ been p there. 65 lemblc avcc les nt ail feu, mais tdinent avec les le si, contrela Mons. M'Lellan unviUe, et Jos^ les Sauvages s'y oit pas pu pren; a Jos^, quandil Chief Justice SewelL^^I do not see what this ha» to do with the case. Mr. Vanfelson. — I beg your honuor to take his an* swer, as my next question will, 1 think, clearly shew its importance to the prisoner. Mainville, n'est il pas un bois bruld ? La Pointe, — Oui, il est. Mr. Vanfelson. — ^Jos6, est il un Sauvage ? Mr. V, F. — Then/if I understand you, you mean to say, upo» jour oath, that in a canoe of the lengtli of the one in question, which had already fiileen men and their baggage on board, yoa could, without danger, take in addition, Be Remhard, and three others, with their baggage, and make a traverse. Upon your oath, is that true ? L. P. — I did not m^n to say that the four could have gone ; but if^e had taken Keveny and his things then, it would certain- ly have been dangerous to have made the great traverse, if the wind blew, witli a canoe so much loaded, but till then, it might have done. It is dangerous to traverse the lake when it blows* In the evening, at the camp, I am quiie sure that I did not see any fire before the prisoner's tent. If there, had been a good fire before the tent of the bourgeois, as usual, I certainly must have leen it. When the small canoe arrived at the shore, Mr. M'« agers to paddle in the i8 overloaded. 1 am lie was on a bar before anoes, of the size o hi paddlers, and two of is in that canoe; vho did not work. At ave his boots, he was ed his head towards ^ and he generally bad iLellan was, I believe, at the distance of this room, or thereabouts^ ^' BDerhaps less ; several came forward, but I do not know whether found Keveny, hear ■M'Lellan was amongst them, nor whether he said any thing. I canoe was too much Bean not say whether they, (De Remhard and M'Lellan) supped * Id remain with Keve-Btogether that evening, but on the following morning they break- 1^ _ « . _i-_-j i< 9& Hf^te^ together, and during the rest of the voyage they took their ials together, as far as Lake La Pluie, and at Lake La Pluie. Mr. V. F. Are the partners generally pell mell with the voya- lurs and half-breeds, or in their tent witli the clerks and interpre- as to De Reinhard, 10 took him pnsone . in Uie small cancel' mr oath. «» I did not hear De ot care, th_athc_h;*^ L. P. — I can not say that the bourgeois and the engages are Jly together. The partners and clerks took their meals to- er, and with the interpreters, and the engages their's at the e ; but they come from one fire to the other, and joke with the j68. Mr. V. F. — I ask you whether Mr. M'Lellan could have taken Keinhard, Mainville, and Joseph, prisoners, against the will the half-breeds and Indians ? dv between i»« r*"* J^* P« — If the half-breeds and Indians had opposed it, the 1° Where he .would cerBrisoaer could not have taken De Reinhard, or Mainville, cr Jo- rdidnothearMr.A-hl as De Reinhard had] '.ould you baye H ,as in the same barwitkl «tweenthetwoj=».te^ L v^here •• — j^b 1 miffht ha:^^ t^cen P'wph, if he had wanted to do so. m ..ike.' ''- Wit ■'' 64 La Pointe* — Certainement. Les bois bruWs el les Sauvages sent proches parens. Apres que D( Rrinhard a dte pris par le Capit. D'Orsonnens, je ne les ai jamais vu manger ensemble, ni souvent en. semble dans la tente, mais peut etre lis en ont fait. (^0 Chief' Justice SewelL-^1 have not taken any thing relative to De Ileinhard, it does not bear on tins case at all. La Pohite. — Avant le moment qu'ils ont part age le butin de Keveny, Mons. Archy n'avoit nen que de Sucre Saiivage. Le pain de sucre blanc fut poile dans la tente par nn bois brulc. Je ne Tai jamais VII dans la tente, mais j'ai vu un bois brult^ le met* tre dans un panier aupres de sa tente. Au tenis que je Tai vu mis dans le panier, j*etois a la distance, de la longueur de la boite des juges. Je ne sais pas que le bois bruM lui a parl^ au terns qu'il a mis le Sucre dans le panier. C'est le lendemain que j'ai vu les bourgeois prendre du th^ avec du sucre blanc que leur domestique y mettoit. Ce n'etoit pas Jef memo soir, mais le leademain que je les ai vu prenJ dre du tiit^ avec du sucre blanc. C*etoit Rochonj son domestique, qui m*a dit que M'Lellan n'avoitl pas du sucre blanc, et je n'en avois pas vu aupara-l vant. C'^toit lui, Rochon, qui coupoit le sucrej Muns. M'Lellan avoit auparavant de sucre gris ou Sauvage. C'etoit lui, Rochon, qui mettoit 'e sucre dovan* iux, mais je ne Ten ai pas vu mettre wiar'sle^ lasses. ('^") ( 3* ) Mr. V. F. — Mainville, is he not a half-breed? L. P. — Yes, he is. Mr. V. F. — Joseph, is he an Indian ? L. P. — Certainly. The l*alf-breeds and Indians are neari lationli. AfVer De Reinhard was taken by Capt. D*Oisonnen$, did not see them eat togetii'.!, or often in the tent together, bii they may have done so. I ( '* ) Before the time that the)* divided Keveny's- things, Wj Arr;hy had nothing but Indian (maple) sugar. The loaf of wliil bois brulds et Apres que De )rsonnens, je ne ni souvent en. ctre ils en ont taken any thing lot bear on this lu'ils ont partage n'avoit nen que •e blanc fut poitii Je ne I'ai jamais joisbrul^ leiTiei. tente. Au tenis ^etois a la distance es. Jenesaispas' ems qii*i^ a ^^^^H endemain que j'ail vec du Sucre blanc 3 Ce n'etoit pasleF ^ je les ai vu pren- C'etoit Rochon, M'Lellan n'avoit rois pas vu aupara. coupoit le Sucre t de sucre gris oa' mi mettoit »e sucre ■^vumettrewiar^i^lei a half-breed? Id Indiana are neari W Capt. D'Oisonnens, ^ the tent together, \>i Id KevenvV things, jl lugar. The loaf oi«i"| 05 Ctiitf Justice Sevcell — Of what consequence is it whether the domestic sugared the tea or not ? Do let us, if you think it important, understand what he means to say upon tliis apparently trifling sub- ject. La Pointe.'^Je n'ai pas vu le domestique dans la tente,. mais je Tai vu couper le pain de sucre blanc. Au terns dont j'ai parleque Mons. M'Lellan examinoit et iisoit les papiers de Keveny, il etoit contre notre feu. II les prenoit dans la cassette, c'^toit le prisonnier qui I'apporta contre le feu. ( ^) Mr. Vanfelson.'—'Wili your Honour take that ? Oiief Jtistice SewelL — What difference who took them ? Mr. Vatifelson.-^l beg to mention one circum- stance, and I trust your Honour will see why it is important. Faye, in his evidence, said that it was De Reinhard who brought it. La Foinle, — Je n'ai pas dormi cette niiite h, Ce soir la, on m'a defendu de parler de la mort de 'Keve- ny. Cela me donnoit a peuser, et j'avois peur des bois sugar was carried into the tent by a half-breed. I never saw it in the tent, but I saw a half-breed put it into a basket near his tent. At the time that I saw it put into the basket, I was at the ^stance of the length of tlie judges' bench. I do not know that the half-breed spoke to him at the time that he put the sugar in die basket. It was the next day. that I saw the gentlevnen take tea with white sugar, which their servant put into it. It was not the same evening, but the next day, that I saw them take tea with white sugar. It was Rochon, his servant, who told me that M'Lellan had not any white sugar, and I had seen none before. It was he, Rochon, who broke the sugar. Mr. M'Lellan had nothing before that but grey or Indian (maple) sugar. It was he, Ro- chon, who placed the sugar before them, but I did not see him put , any into the cups. ( 3" ) I did not see the servant in the tent, but I saw hinj break the loaf of white sugar. At the time of which I spoke, when Mr. M'Lellan, examined and perused Keveny 's papers, he was at our ilre. He took them out of the box. It was tlie prisoner who ear- ned the box to the fire. t '/ '^ I 'A I W' ^ m F''- :^ .•■'• r • 'Li tfJi 9)' i* 'r/*i'i ^■ s ;ii "m 66 bru16s, dc De Reinhard, et dc tons. Je pensois que les papiers dtoicnt les papicrs de Keveny parcequ'ils ont tt6 tirC>s de la cassette de Keveny, et je n'ai pas vu aiiparavant line telle quantity de papiers. C'est ce qui m'a fait croire qu'ils dtoicnt ceux dc Keveny. Je n'ai pas connoissance que, rendu au Lac La Pluie, Mons. M'Lellan a 6t^ le sabre et le iusil de Te Reinhard. Rendu au Lac La Pluie, mon cousin, La Pointe, vint me dire d*aller trouver le Capit. D'Orsonnens, et j'y fus. II me demanda si j'avois aucune connoissance de la mort, ou du meurtre, de Mons- Keveny, et je fus envoye, avcc Faye, au Fort William, oi j'ai fait ma declaration devant le Capit. Matthey, qui Tecrivoit, et apres, j'ai fait serment sur ma declaratipn. Mr, Vatifdson — Depuis que vous I'avez fait, je dcmande, sur votre serment, si vous n'avez pas dit a qui que ce soit, ni entendu dire par Faye, que quand vous avez vu le pavilion, ou la tente de Kev- eny sur Pisle, que Jos^ avoit voulu mettre a terrc pour prendre Keveny, mais que vous et Faye ne vouloient pas le permettre ? Gardez vous bien sur votre serment. La Pointe, — Quand? Mr, Vanfelson, — N'importe quand; I'avez vous jamais dit, ou entendu dire par Faye ? La Fcinte, — Ni I'un, ni I'autre. Je ne I'ai ja- mais dit, et je ne I'ai jamais entendu dire par Faye. Mr, Van/elson, — Ni raconte a qui que ce soit que vous I'avez entendu dire par Faye ? La Pointe, — ^Je ne I'ai jamais entendu, et je ne I'ai jamais raconte a personne, qui que ce soit, que je I'ai entendu. (^') C ) L. P.— I did not sleep that night. That evening I had been ordered not to speak of Keveny s death. That made me thoughtful, and I win afraid of the haJf-breeds, of De Keinhard, and of all. I considered the papers to be Keveny's papers, be* (37 AUGUSTIN POIRIER dit DE LORGE, suvm, and exambted bjj ihe Attorneij General, Pomer dit De Large, — J'etois en 181 6 dans le territoire Saiivagc avec Colishe Diicha'rme t ii bri- gade. En allant ii la riviere des Cy«^nes, j*ai ren- contr(5 le prisonnier a la barre. C\-toit cu bus dcs Dalles dans la riviere Winnipic que je l*ai rencon- tre. J'ai entendu Mons. M'Lellan demander d Colishe Dncharme, si nous avions connoissance, en cjiemin, de Mons. Keveny, et Colishe a repondu, qu'oui J qu'il I'avoit vu, et I'avoit parltJ. Le pri- sonnier a demands alors, " comment Keveny faisoit pour vivre ;** Colishe a repondu, ** quelquefois il " achcte des vivres des Sauvages, quelquefois ils lui '^en donnent, et quelquefois il en vole." Sur cela M'Lellan a dit, " He bien, c'est bon, il ne volcra " pas long terns ^ demain a ces hcui es ci, son affaire cause they were tfdcen out of Keveny's box, und X had not before taken notice of such a quantity of papers. I do not know that, when he came to Lake La Pluie, Mr. M'Lcllan took De Rcin- hard's sword and gun away. Wti[en we were at Lake La Pluie, my cousin, Fayc, came to tell me to go to Capt. D'Orsounens, and I went. He asked me whether 1 had any knowledge of the deatl), or of the murder, of Mr. Keveny, and 1 yvaa sent, with Faye, to Fort William, where I made uiy declaration before Capt. Mat^hey, who wrote it out, and afterwards, I made outli to my declaration. Mr. V. F. — Since you made it, I ask you, upon your oath, whether you did not say to any one, or hear Fayc say, that, when you saw the flag, or the tent of Keveny on the island, Joseph wanted to go on shore to take Keveny, but that you and Fays would not let him ? Take good care, you are on your oath. L. P.— When? Mr. V. F. — No matter when ; did you ever say so, or hear Faye say so. L. P. — Neither one nor the other. I never said so, nor did I I ever hear Faye say so. I Mr. V. F Nor told any one whomsoever that you heard I Faye say so ? L. p. — I never heard it, nor did I ever tell any person what-* I ioever that 1 had heurd it. en Hi A ■I. \- ••1 ••sera faite, pent etre ne verra-t-il plus le sol ** coucher,"(3*) The Court adjourned for half an ^our^ to allow t Jury to take r^reshmenL Saturday Afternoon. The Jury being called over, and all present, M ValUere de St, Real stated that they had no que tions to put to Poirier dit de Lorge, FllEDKRICK DAMIEN HEURTER. swori and ejpamined by tJie Attorney General. Heurter.'^En 1816 j'etois dans les pays Sai vages, dans la partie qu'on appelie, Bas de la, rivi^i Wiiimpic. Je connois le prisonnier d la barre, et j connois Alex. McDonell. Je ne puis pas dire oii est ;i present, niais je crois qu'il est' encore dans Ic territoires Sauvages. A ce que j'ai oui dire» il es parti pour les Montagues des Roches, et je 1 crois. (^^) Chief Justice Scwell. — Is that in the United State! of America? (3«) In 1816, I» was in the Indian territory yi\\h Colislif Ducharme in a brigade. On the way to Swan River, I met t'l prisoner at the bar. It was below the Dalles, in the river Winni- pic that I met him. I heard Mr. M'Lellan ask Colibhe Ducharme, whether, on our rvay, we had heard any tiling of Mr. Keveny, and Colishe answered, yes, that he had seen and spoke to him. The prisoner then asked, '* how docs Keveny do to live ?" Colishe answered, sometimes he purchases victuals from the Indians, sometimes they give him tliem^ and sometimes he steals them." Upon which M'Lellan said, " very good, 'tis well, he will not steal a long while ; tomorrow by this time, his business will be done, perhaps he may never see the sun set again." (3°) In 1816, I was in the Indian country, in the part called Bas de la Riviere Winnipio. I know the prisoner at tne bar, and I know Alex. Macdonell. I can not say where he is at present, but I believe he still remains in the Indian territory. According to what I have heard, he went away t9 the Rocky Mountains, aud I believe it. 69 t-il plus le Boleil I houVf to allow the Afternoon. J all present, Mr, t they had no ques^ rrge. ilURTER, sworn, neij GenevaL ans les pays Sau. e, Bas de la riviere lier a la bane, etje ; puis pas dire ou il est' encore dans les j'ai oui dire» il est Koches, et je le the United States territory wit^ Colishe JSwan River, I met t'l' [lies, in tlie river Winni- ask Colishe Ducharroe, tiling of Mr. Keveny, leen and spoke to him. lenydotoUve?" Colishe Tuals from the Indians, [times he steals them." I, 'tis well, he will not le, his business will be t again." itry, in the part called jprisoner at the bar, and hi'here he is at present, \ territory. According : I Rocky Mountains, and Heurter.'^l do not know, your Honour. I know the hand writing of tlie prisoner. I have seen him write frequently. Attorney Gwerfl/.— Did you ever. Sir, see in a letter, a paragraph in the hand wiiting of the pri- soner, any thing relative to Mr. Keveny ? Mr. Stuart. — I object to the question, and at tlie tome time can not refrain from expressing my sur- prise that the learned Crown Officer should put a question^ which he knows, according to the very first rule of evidence, is illegal. Attorney GeneraL-^l should contend, under th^ circumstances of this case, I am entitled to put this question. I prove Mr. McDonell, (o whom the letter was addressed, is beyond the Rocky Moun^ tains. Chief Jutsice SewelL^^Yoa do not prove that he is out of the jurisdiction of this Court, which must formi the substratum for the admissioti of secondary evidence. Produce the letter, or prove that tlie per- son to whom it was addressed is beyond the juris- diction of this court. You know that, in every case, that is the rule. Solicitor Gewtfrfl/.— Undoubtedly, your Honour, that is the rule, but probably your Honour will I agree with us that this is not an analagous case, and that, having proved Mr. McDonell to be beyond the Rocky Mountains, vfe have proved sufficient to entitle us to introduce this secondary evidence as I the best which the nature of the case affords. Ctntf Justice SewelL — The answer is clear, if you I only read the words of the statute upon which the indictment is founded. •♦ That from and .ifter the repassing of this act, all offences committed within r any of the Indian Territories, or parts of Ameri- r ca not within the limits of either of the said Pro- r vinces of Upper or JUower Canada, or of any civil ■;*■'■' .**.■■•■■ t * ' ■ ' • » ■ ■'■' Mi ^^ 't 11 .' ■ -^ J? ... ,,,. |# r. 1'- ■ ■ V ■;'♦• IfV-; ■' '•-♦'?:• :r;i. It ■' * ■ wm is^'"^ rni^i wj^jk •''■'' g^I^^BH'c K-^ m ■A »* government of the United States of America, *• shall be, and be deemed to be, offences of the ** same nature, and shall be tried in the same maiu ^' ner, and subject to the same punishment, as if " the same had been committed within the Province " of Lower or Upper Canada, Attomei/ General,"^lt is not proved by this wit- ness, but that Mr. McDonell is in the United States. But I should contend that, in proving he had gone into an unexplored country, we have proved sufficient to let in the evidence we present. We wish to prove by a person who saw the letter, what its contents are, and we offer this as the best evidence in the absence of the letter, and under the impossibility of producing McDonell, to whom it was addressed. Chief Justice SeweU. — Do not let me mislead you, or let you fall into error, Mr. Attorney, on the ^ hand, or misunderstand you on the other. 1: 5 basis of your argument I take to be this, that M^ Donell is not to be produced from peculiar circum- stances. If I am in error, set me right. If that is your position, we reply, you have not proved that he is out of the jurisdiction of this Court, and till you do that, you know, equally as well as the Court, that you can not be permitted to introduce secondary testimony. Attorney General, — The basis of the argument upon which I contend for the right of producing evidence of the contents of this letter is, that the best evidence on the subject, namely the letter it- self, is lost That being the case, I submit, in ex- amining a person competent to speak as to its con- tents, from having actually seen the letter, that I am offering evidence which ought to be admitted. However, I will proceed with the examination, and when I come to prove the contents of the " letter, my learned friends can make their objections. 71 Examination resumed hf the Attorney General. # Heurter, — ^J*ai vu une lettre ^crite dans le moii de Septembre 1816, et signee avec la signature de Dease. EUe ^toit addressee au proprietaire ea charge du poste de Bas de la Riviere. Je connois bien I'ecriture du prisonnier. Je I'ai Vu 6crire plu- sieurs fois. (*') Attorney General — Did you ever see in the hand writing of the prisoner a letter, or part of a letter, giving an account of what had become of Keveny ? Mr. Stuart, — I object to that question. Chitf Justice SewelL — Do you mean, Mr. Attor- ney, in this letter you are speaking of, or some other which you intend to produce ? Attorney General. — I ask him if in this, or any, letter ? Hettr/er.— Au troisi^me page de la lettre de Mons. Dease, il y avoit de I'ecriture du prisonnier en crayon. (*^) Mr. 5/war/.— Stop, Mr. Heurter. Surely, your Honour, unless the letter is produced, the Attorney General will not be allowed to examine in this manner. Chief Justice Sewell. — ^Yes, Mr. Stuart, all that has come out as yet is undoubted evidence. As a fact, the Attorney General shews that this witness knows the hand writing of the prisoner, and that he saw some of it in pencil in a letter written by a Mr. Dease. The contents of this writing is not as yet attempted to be made evidence. (**) 1 saw a letter written in the month of September, 1816, and signed with the signature of Dease. It was addressed to tho partner in charge of the post of Bas de la Riviere. I am well acquainted with the hand writing of the prisoner. I have oAen seen him write. (*' ) On the third page of Mr. Dease's l6tt«r, thero was lomf^ writing of the prisoner's in pencil. •1 ♦ 7^ m AUormy General — I shall first trace the letter 1 Mr. McDonell's hands and then offer^ the conten in evidence. Po you know a Savage named Josi conimonly called Fils de la Ferdrix Blanche ? Jleurier. — Qui, je le connois, et c'etoit lui qi portoit la lettre avec un nomme AUetnagne, et j Tai vu la donner ^ Mons. McDonell. Le lend( main j'ai vu une lettre sur la table de Tappartemer de Mons. M'DpncU, elle ^toit ouverte abrs, et j Pai lu. CO " Chief Justice SewelL^-^How do you know this t be the letter bi ought by the Savage Jds6? The lei ter was not open, nor did you examine it, I suppose at the moment that it was brought. Hcufrfer. — ^Je ne puis pas dire tout k fait que c'^ toit la m^me lettre. Je ne suis pas bien hiir qui c'etoit la m^me lettre, non pas bien sur. Q^) Chief Justice *^^aW/.— Very well » now remember, you are not to speak as to the contents of that pari of ai!y letter which was in the prisonei^s hand wri. ting, whether it may make for, or against him. You ^ saw a letter brought by Jos^, and gjven by him and one named Allemagne, to Mr. McDond Subsequently, namely, on the next day, you saw « letter on the table of Mr. McDonell, and in tbat letter was somethinff in the hand writing of the pri- soner at the bar ; wnat that something was (at pre« «eiJt at least) you must not tell us. E.vanunaiion resumed hy the Attorney General, Heurter, — C'etoit Jos^ qui portoit la lettre, et je Pai vu la donner a Mons. McDonell. Suivant la ?^— ■ (43^ Yt;g, I knovv- him, and it was he who carried the letter, together with a man of the name of Alleinagne> and I saw him give it to Mr. Macdoncll. The next day 1 saw a letter on the tab in Mr. ^V<^doneir» apartment ; it was then open, and I read it. (4^)1 can not whoUy say that it was the same letter. J an not quite sure that it was the same letter, not quit^ sure. race the letter to ffer the contents age named Jos^, c Blanche ? et c'aoit lui qui yiemagne, et je onell. Le lende. I de I'appartement iverte alors, etje you know this to ge Jbs6 ? The let- mine it, I suppose, It. tout a fait que c'6 pas bien sur que )iensur. (^3) 11 , now remember, )ntents of that part risonei^s handwri- r, or against him. •^os^, and gfven by to Mr. McDooeH lext day, you saw a >onell, and in that I writing of the pri- lething was (at pre is. ' ittomey General Irtoit la lettre, etjel Sonell. Suivant la who carried the letwJ laBncandlsawhiingy V a letter on the tebtt fen open, and I read It. [the same letter, i^ [, not quite sure. 73 • rurneUr Mons. M'Donell e^t a I'autre c6te des Mon- tagnes des Roches. (^^) Attorney General — You saw the letter delivered to him at Bas de la Riviere by the Savage ? Henrter, — Oui, je I'ai vu. Attornet/ General. — Et le lendemain vous I'avez vu sur la table de Mons. McDonell. (*'') Chief Justice SewelL — Stop, Mr. Attorney Gene- ral. Do not talk of the letter. Of a letter upon Mr. McDonell's table you may. I stopped the witness when you were questioning him upon this point before, and he very properly said that he could not say that the letter, which he spoke of as having seen on Mr. McDonell's table, was the let- ter which was the day before brought by the In^' dian. Ask him about a letter, or fifty, if you think it of any importance, but not about t)ie letter, as he has fairly, and honourably to himself, told us that he can not say that it was the same letter. Avez vous vu une lettre sur la table de Mons. McDonell et quand ? Heurter.^-Le lendemain j'ai vu une lettre sur sa table avec la signature de Mons. Dease. C*etoit 9ddress^e au proprietaire en charge au fort au Bas de la Riviere. Je ne sais pas qui prendroit cette lettre. Je ne Pai pas vu depuis, et je ne sais pas ce qu'elle est devenu. Chief Justice SewelL — Qui 6toit alors en charge du fort au Bas de la Rividre ? Heurier, ^^Mons, McDonell etoit alors le propri- etaire en charge du poste au Bas de la Riviere. (^*^) (**) It was Joseph who brought the letter, and I saw him l^ive it to Mr. Macdonell. According to report, Mr. Macdonell \ii OD the other side of the Rocky Mountains. (««) H.^Ye8, 1 saw it. A. G And the next day you saw it upon Mr. McDoneH's table? (♦*) On the followhig day I saw a letter on his table, with I tbe signature of Mr. Dease. It was addressed to the partocT K ■ M :-f'^ If n ft 'J¥ •"' indiau Ternto. ing tlie best evi- The act pioviilii he enloicinj; oIk. that all olleucfs this act shall Im le same had been You would not, 1 for secondary evi. committed in ilus g positive, we can iito one charged to an Territory, be- equally within our ust iall. perfectly nuj^ato- rved beyond the person, exceptini; jund to undertake I * I help that, inhe I has done wn)»»J?« enquire. W f sit Ibut to adminifiUi torncy Genei-al. I the bar at Kcd fard of the death 77 of Kcveny before I saw him. Je Pai demand<^ oti il ovoit laisse Do Reinhard^ et il m'a repondu qu'il I'avoit laisse au Lac la Pluie avec deux hommes, (voyageurs,) et un jjetit canot, pour I'avertir, ou lui (jonner d'intelligcnce au Fort Douglas, si Mi Lord S(5lkirk s*avan(;()it avec ses gens vers le Lac la Fhiie. (^^) 1 saw a trunk at lied River belonging to Mr. Keveny. J'ai vu uu pupitre portatif, et une valise rondo, u la Riviere Rouge, qui avoient appar- tenus il Keveny. 11 y avoit des planches de cuivre marqiK^es du nou) de Keveny. Lc norn de Keveny ^toit sur tons les deux, sur le pupitre portatif, et sur le coliie. De Reinhard m*a envoyd par le pri- sonnier, h ce qu*il a dit, I'ordre de lui ach^ter un cheval. Le prison nier m'a dit que je pouvois em- ployer le butin dans le cofTre de Keveny pour acli- eter un cheval, en me disant que De Reinhard avoit assez de butin a lui pour payer le cheval, et qu*il n'avoit pas besoin de prendre un cheval du magazin. Dans le mois de Decembre qui suivoit, j'ai vu la cassette et le pupitre portatif de Keveny au Fort Douglas. J'ai voulu emporter la cassette de De Reinhard 1^ oij je demeurois. Le prisonnier m'a dit que je ferois micux d'emporter la cassette et le pupitre de Keveny, craignant que les Anglois, ou la Colonic de la Riviere Rouge, ne viendroient au fort bient6t, et reconnoitroient la cassette et le pupitre de Keveny. (*^) 1 formerly was a serjeant in the {*'') I asked hini wliere he had lefl De Reinhard ; he an- swered nie that he had lelt hiui at Lake La Pluie, with two men, (voyageurs,) and a small canoe, to apprise him, or send him word, at Fort Douglas, whether my Lord Selkirk advanced with his people towards Lake La Pluie. {*') I saw a portable desk, and a round trunk, at lied River, which nad belonged to Keveny. There were brass plates on them marked with the name of Keveny. The name oi Kevenv was I both upon the portable desk and upon the trunk. De Reinhard ient to me by the prisoner, as he told me, an order to buy him a •^rl m P i r* '/• ,. Vi*^ 78 ^leuron regiment, and was employed as clerk to tiic regiment. Aflcr the disbanding of the regi. uient, I went into the Indian Territory in the ser- vice of the North West Company. Cross examimtion conducted by Mr. Stuart. • • Ilmrter. — Je ne me rappelle pas s'il y avoit quel, qu'nn pr6sent a ces conversations mais cela pourroit etre. Je ne puis pas dire mais c'est possible qn'il y avoit. J'etois en connoissaiice avec Dc Reinhard quand nous tHions au meme regiment. II 6toit ami de moi, Mr, Stuart. — Oii est ce que vous avez re9U Ic butin de Keveny ? (*^) Chief Justice SewelL — He did not say that he re- ceived the butin, he said he saw a trunk and writing desk belonging to Keveny at Red River. Mr, Stuart, — I know that, but I must repeat my question to the witness, and obtain an answer to it. Ou est ce que vous avez re^u le butin de Keveny ? Heurter, — Je Tai recu ^ Bas de la Riviere, horse. The prisoner told me that I might make use of the thinj^ v'hich were in Keveny 's trunk to buy a horse, telling ine that De Reinhard had property enough belonging to him to pay for the horse, and that there was no necessity to take a horse from the store."* In the month of December following, I saw Keveny'i trunk and portable desk at Fort Douglas. I wanted to take away De Ileinhurd's trunk to where I lived. The prisoner told me I liad better take away Keveny's trunk and desk, in the fear that the £nglish, or the lied River colony, mightsooncpmetoth^ fort, and might recognize Keveny's trunk and desk. ( * » ) H. — I do pot recollect whether there was any one pre- sent at these conversations, but it might be the case. I can not say but it is possible tliat there was. I was acquainted with De Reinhard when we were in the same regiment. He was a friend ef mine. Mr. S. — Where was it that you received Keveny's baggage ? * Meaning to take goods from the store on De Reinliard's ac- count, for the purchase. iloyed as clerk to ding of the regi. jrritorv in the ser- ^ty Mr. Stuart. . Eis s'il y avoit quel, mais cela pourroit ?st possible qn'il y kvec Dc Reiiihard lent, II 6toit ami ous avez re9U le 3t say that he re- trunk and writing River. I must repeat my n an answer to it. nitin de Keveny ? la Riviere, make use of the thingi se, telling ine tliat De him to pay for the ike a horse from the iring, I saw Keveny's s, I wantec) to take . The i^risoner told and desk, in the fear might soon come to th^ nd de^k. re was any one pre* the case. I can not acquiunted with De nt. He was a friend Keveny's baggage ? on De Reinhard's ac- . Mr. Stuart.— ^ti («>\ t \ tions to put to this ; tness In.'iV/^"*' °^' I'"?*' left in my haiub, as I "..u^ ?u' J^ '""' ''« wi | be Uon will prove to C exceedili? ''"* '''' '^'^"'i^t prisoner, and we must KSjT**".""' »« the cou«e ,n conducting it?^'^""'"^'^ *" take our own t%/ Justice SeKell—T„ j, . theie are three paniet*^ ;„ conducting thi, trial trust equally deSro ^0^ " tfJi"'' i'"^'^' """l I V.Z. the Crown, the CounXfnf th"*^ ""ct justice, he Court, but we must undmun^ ' ?"'"'"«'•• «nd ty appears, whether it is a reaf^ ' *''™ " *ffi™l- «> that we, who can havl n^^ ° * u ""««'n«y one. to both parties in co„duc«L *''' ' ''"f '^ •'° J"«tice over, the trial, may not K*" "^"^ presiding error. ^^ "<*' ^7 misconceivingfall intS Jtinftt Je'Sr'^ ^"'' '""" ''^^^ ^o"^ ««u ce bu- I Heurter. — £ntr«» lo «„• -x jeSeptembre IsTc. j'STiT h'f^^'™*P«^"'e de Perarix Blanche a bL 1 ,» r'^"!'" "^""'^ ^''» Jun cofte oval-rond et ,m • ^''''^re- II y avoit oun-eau de toSe. avte"" ITl T'**'^ •^"» "n Jos^ m'a dit avo r rencontrrS. p ^t^^''^ ''«»"s- hmt charge' de me les remmj ^M?^^' I"' ^'a- |PM i Bas de la Rivi^rp f > ** i^Han n'^toit q«n2e jours auparfS UrT V'"^ '' ^'"^t Par ["•^me soirje les ai en^oXrMnn^'L^^^'"'^- i« [achambre, mais il rSrt dS'' ***=Donell dans N« qu'ils ^oient envoyi 7^11^"^ ^^ ^^ ♦L H:. 80 Mons. McDonell pourqiioi il nie les avoit renvoy< et il m'a dit qu'oii pjirteroit sous peu pour la Rivii^i Rouge ou je pourrois les envoyer ; ce que jc f\ J'ai pa *ti moi tn^me quelques heures apr^s pour 1 Riviere Rouge, et ces eftets y t'urent port^s dans 1 tneme brigade oCi j'^tois. Je me suis rendu k Foi Douglas, oil je restois une dixaine de jours. L conversation dont j'ai parl^, que j'avois tenu avc Mons. McLellan, ^toit deux ou trois jours apn son arriv^e au Fort Douglas. Mons. M*Lellan ei arrive cinq ou six jours apres moi, et c'etoit deu ou trois jours aprcs qu*il arriva. Les gages de D Reinliard le mettoit en ^tat d'avoir un cheval en c pays li\ Dans ce pays la on ne paye pas pour c qu'on achate en argent, niais en marchandises comme fusils, chemises, et hardes. J'ai eflective ment achate un cheval pour De Reinhard. Mons M'Lellan ne m'a jamais donn^ un ordre pour sij verges de drap. J'ai paye la moiti^, ou peut ^\n plus que la moiti^, du prix du cheval, quarante neu piastres, en chemises et mouchoirs. (^^) ( ' 1 ) Between the fifteenth and seventeenth of September i816, 1 received some things from Joseph, fils de Perdrix Ulancb^ fit Bas de la Riviere. There was an oval- round trunk an a portable desk in a canvas cover, with the name of Keveny there on. Joseph told me that he had met De Reinhard who had de KJred him to deliver them to me. M'Lellan was not at Bas del Utviere at that time, he had left it a fortnight before for La La Pluie. The same evening, I sent them to Mr. MacdoD into his room, but he refu.^ed to receive them. I told him De Reinhard had sent them, but he would not receive them, next morning he sent them back into my room. I was not tl ut the time. On my return 1 enquired of Mr. Macdonell whjl had sent them back to me, and he told me that in a few davi | party would be going to Red River whither I might send the which I did. A few hours afterwards I took my departure fielf ibr Red Fiver, and those things were conveyed tliitherini siune brigade in which { was. I went to Fort Douglas, where] remained ten days. The conversation which 1 .mentioned i having held with M'Lellan, occurred two or three days aflerl arrival at Fort Douglas. Mr. MXellan arrived five or six ' tm es avoit fenvoy<<. u pour la Riviiire r •, ce que jc fis. ires apris pour la jnt port^s dans la Hits rendu ^ Fort le de jours. La j'avois tenu avec trois jours apres ons. M'Lellan est i, et c'etoit deux I Les gages de De )ir un cheval en ct paye pas pour cc en marchandises, ies. J'ai efl'ective. Reinhard. Mons. un ordre pour six oiti^, ou peut ^trel leval, quarante ncufl 18. CO ' enteenth of Se][>teinbcf,l I, 6l8 de Perdrix BlancheJ n oval-round trunk air lenameofKevenythep s Reinhard who had a flan was not at Baa del rtnight before for La Lhem to Mr. Macdoi them. I told him ' ^Id not receive them, f room. 1 was not t ►f Mr. Macdonellvhyi ,e that in a few dajfi her I might send ther 1 took my departure n e conveyed thither m Fort Douglas, whtft] ,» which 1 .mentioned! o or three days after I arrived five or s'x («! JOCELYN WALLER, Esquire, sworn and examine ed by the AUortiei/ General, Mr. Waller. — I am Clerk of the Crown, and of the Court now sitting. I have the record of the conviction of Charles Pe Reinhard in this Court of Oypt and Terminer, for the murder of Owen Keve- ny. I can produce it. I have it here. Attorney GeneraL^^l move that the said record be produced and read. Cki^ Justice Sewell. — Let it be read. The Clerk of the Croxvn accordingly read the record. Attorney General — Thit is the uase on the part •f the Crown. '^^-^~m,im DEFENCE. NICHOLAS DUCHARME, mom, and emnnned by Mr. Vanfelsan. Ducharme."^' ktois dans les pays Sauvages dans \Yii^ de 1816 ; et dans le mois d'Aout ou Septem- bre de cette annee, ^'6tois guide d'une brigade du Nord Ouest qui alloit k l-x Rividre des Cygnes. II y avoit dans cette brigade un nomm^ Augustin Foirier dit De Lorge, un voyageur. Je le connoia [depuis dix ans. Dans le terns que De Lorge ^toit er me, and it was two or three days after he arrived. De |Reinhard'8 wag««f ^-> "serment, Mr. Vanfehon. — A prt^sent je voudrois savoij-, ucharme, dans le tern? que votre brigade a ren- ntre le canot de Mons. M'Lellan, a-t-il demaiuk le vous, Colishe, ni vous aviez eu connoissance eu emin de Mons. Keveny, et si vous y avez rcpon- , et ce que vous avez dit ? Rappellez vous bien. Ducharme. — Non, il ne m'en a demand<5 rien. ons. Archy ne m*a parl^ de Keveny. Mr. Vanfehon. — Encore, je voudrois savoir si ous. Archy, le prisonnier, vous a demands, comment Keveny fesoit pour vivre," ct si vous ez rdpondu, " que quelquefois il voloit, et quel- quefois il achetoit ?" * Dwc//arm?.—- Non, point de tout,, jol Pun ni [autre,- •- ' -^^^^ ■' nnier avec qua- Dalles. Nous ons. Archy ^toit rme," et ensuite ; terns que vous je Vai dit, qu'il les vents avoient rl^ a ceux de ses im^ ma P^P^' ^! , nous autres qui I Ions. Viger. Je Apres quelques )arquer," ou qu'il it qu'il falloit es. prendre quelque 'avoit pas de quoi e qu'il vouloit de •e chose, qu'est ce ke^ummcrof I816,and that year 1 was guide ISwati River. In this roirier dit De Lorpe,| ^ars. At the time l)c| riih fourteen other per-l ^e put on shore. Mt.| I moruinp, Ducharme, •c you Wft the Grand tie time, as the wind. ^oseofhispeoplci^hori Uune gentleman tron fwasM?. Viger. Ijn ^•hile I taid to Vieffj tmbark." He repliefl [hould take somethw Mr. MUlV f(M»J^ ■* re on. l&c. ^S E'- -vj '• V %l "1 w y i 1 84 Mr, Vanfelson, — ^Je voudrois encore demander , avez vous entendu M'Lellan dire, '< H^ bien ! c'ei '*bon, il ne volera pas long terns, demain ^ c( <' heures son affaire sera faite ?** ou rien autre chos de Mons. Keveny? Ducharme, — Non, point de tout, Mons. Archy n m'a pas parle un seul mot de Keveny. J*en sui sur. (•'^) ( ' 3 j Mr. V. F. — Listen Ducharme. During that time dii Mr. M'Lellan say any thing about Keveny ? and if he said thi least thing about him, what was it ? D. — He said nothing about Keveny oil the time I was there He did not say one single word to me about Keveny, nor to Hie people. Mr. V. F. — As you were the guide, if the prisoner had said any thing about him, it would have been to you. D. — Yes, certainly, but he did not say a single word abwit Keveny. While Mr. M'Lellan was takmg what he wanted b my canoe, a half-breed came and asked me whether I harl sm Keveny, and I told him that I had seen him above the Dallei, I have said that I knew De Lorge for ten years, I believe tk it is twelve years that I have known him. He always bore ai indifferent character amongst us, a very bad character. Mr. V. F.-^Doe8 he generally speak the truth ? Df — ^Certainly not. Mr. V. F. — According to all that you have known, and aO that you have seen, of De Lorge, is he worthy of belief upon hi oath, or would you believe him upon h\» oath ? D.~-No, I should not believe nim upon his oath. Mr. V. F. — Now I should like to know, Ducharme, at tk time that your brisado met Mr. M'Lellan's canoe, did he ask o you, Colisne, wheUier you had learnt any tiling on the way abovt keveny, and if yoH replied, what it was that you said ? recolleii yourself well. , D.-^No, he asked me nothing. Mr. Archy did not speak u me about Keveny. Mr. T* 1^ — Aeam, I should like to know whether Mr. Ardi^i the prisoner, asked you, '* how Keveny managed for his living/ and whether you waswiered that ** sometimes he stole, and eonie times he bought victuals ?" D.— No, not at all, neither one nor the other. Mr. V. F.—I wish iFurther to ask ; did you hear M'Lellan f9]p *'good, very well, he will not steal a long whiles to-roorrfnri core demander j « H^ bien I c'est 18, demain ^ ces I rien autre chose I ^ Mons. Archy ne i jvetiy. J'en suii During that time did ,v? and if he iaid the the time I ww ^^H ut Keveny, nor to the the prisoner had said ? a single word abwitl nir what he wanted m ,e whether I ha^Wwo him above the Da^lo. ti years, I beheve M . He always bore ai| tad character, he truth ? u have known, and M orthv of belief upon hi j >ath? 1 his oalh. ow. Ducharmc, atw '8 ianoe, did he ask " Uiing on the way abo It you said? recoUeii| ^rchy did not speak t ow whether Mr. ArchjJ lanagedfor^^'«l>^*"8'^ U he stole, and eon" teea.MXellaaMJ ng whilcpto-nioirfffii 86 Mr, Vanfehon. — I should now wish that De Lorge shouFd be brought into Court, that the jury may be satisfied the witness on the part of the crown is the same De Lorge that this man has reference to> "v hen he says he is not worthy of belief upon his oatftt* > Augustin Poirier dit De Lorge came in Court, Mr. Vanfelson, — Est cela le nomm^ De Lorge de qui vous avez parl6 ? Ducharme, — Oui. Mr. Vanfelson. — ^Je.voudrois encore vous deman- ds? ) au terns qu'un bois brule vous a demands si vouji avez vu Keveny, et que vous avez repondu, ** ou'h il est en haut des Dalles ;" les bois brulds ont ils jett^ un cri de joie, et disoient ils qu'ii ne vole« roit pas long terns. i)ttcAanMe.-— Non, assureraent non. II n'y avoit que ce seul mot. 11 n'y a pas eu un cri de joie par les gens de M'Lellan, ni point de tout. (''') Mr. Vanfelson. — I beg the Court to notice tlwt, because it refers to a part of La Pointe's testimony. Dans les pays Sauvages, sous quel nom ctes vous connu ? II this time his business will be done," or any thing else about Mr. Keveny. D. — No, not at all, Mr. Archy did not say a, single word to me about Keveny. I am sure of it. {**) Mr. V. F. — Is this tlie man named De Lorge, of whom youi^ke? D.— Yes. Mr. v. F. — I would wish further to ask of you ; at the time that a half-breed enquired, whether you had seen Keveny, and that you answered, " yes, he is above the Dalles," did the half-* breeds shout for joy, and did they say that he would not steal a long time ? D. — No, certainly not. I1iat was all that was said. There was DO shoot amongst MXellan's people, nor any at all. \l\ ■•Ml i^y^r-^l 60 D^charme, — Jc siils generalcment connu dans leu pays Sauvagcs sous ie iiotn dc Colishc Du- charme. (*') Cross cxaminalion conducted hij the Attorney General Dncharmc. — Je siiis au service de la Coinpagnie du Nord Ouest. C*est Tan vingUsixi^me que je suis au service de la Compagnie. Je suis bien paye, et je suis dans lour service encore. Mons. M'Lel- lan n'a pan parte un mot, non pas nn seul mot, de Mons. Keveny, ni c\ moi, ni a aucun autre dans le canot. En descendant j'ai vu une tente ; la tentc dc Mons. Keveny, a ce que jc crois. Je l*ai vu A neuf heurcs du matin, et c'etoit vers dc ux heures du meme jour, quy j'ai rencontre le prisonnier. Je n'ai pas dit a Mons. Arciiy que je I'ai vu. Je n'ai pas parle un mot de Keveny. J*ai connu De Lorge depuis douze anndes, et son caiact^re est chetif et mauvais. Attorney General, — Comment savez-vous que son cuiact^re est mauvais? Diichamjes, — Je le considere comme mauvais, parcequ'il a desertd de son canot, et il a generale- uicnt un mauvais caractere. Attorney Geneial. — Mais dites moi ce qu'il a fait de mauvais. (***) ( ^ ■• ) Mr. V. F. — By uluit name are you known in the Indian country ? D — I am generally known in (lie Indian country by the name of Colishe Diicharnjc. ( • I ) 13. — 1 am in the service of the North West Company. This \& the twenty sixth year that 1 am in the service of the Company. I am well paid, and I am still in their service. Mr. M'Lcilun did not speak one word, not one single word, about Mr. Kiveiiy, noilher to me, nor to any other in the cnuoe. in going down I Kaw a tent; the lent of Mr. Ki\eny, as I believe, i s^u it ut nine o'clock in tlie moining, and it uus about two o'clock nn the sauit duy that 1 met i:.c piixoncr. 1 did net -tell Mr. wm: ttomey General I'ai Ml. Je n'ai ez-vous que son n ce qu'il a fait known in the Indian ountry by the name ^^'tf Justice Setren t i proper question fb. jt^J l^, "ot consider tl.nt a generally, into liis means of I.' . • • " '"'"'^ ^"lU're. ofhis character, bnT^o" as fnT',""^. '^ '^""wledge may enquire ho^ he acouiro nrt''''''y "^*'- Yo>, Lorg6's general character .1'"^ knowledge of De '•t should go ab7oLlat°,"J^"«»n that rather than part to conceal any thTn„ ,1 Tf ""^ ^"''' <"« 0"r question, though c^erta"| Z^f^:' '^^Jf^to the If the Court think proncr /« ,fi "' ""admissible, 'hall make no objectbn W„ [ "^ " *° ""^ P«. we pose to it. indeed, after" the l^'^r """"'"ff to op- we have attacked De L,te wnl ""*"""■ ■" ^h'^'' complain of anv question h^v, T- .'"'Y'^ "" "ght to endeavour to supH heir Ln '•, '^' ^^°«'" -"aj Chief Justice h^Vn Th^ i *""'=''• exceedingly clear '{l~^I,'4"ip°» t|"-« ^"bject f, ly be impeached by 4 LT ^ ^"'"'•'« ^^an on- terand reputationTam ,1 :!>"''** °^ »•" ^harac- general character if De { or ' f T^'''' *" ^^^ t've to a defendant's charts??; .^"ot'ler rule rela- F'Ple. If a defendant en- i I, . ""' "'"'' *'"= Pn""- ine evidence as to h^^K' ;??'"» -'"^ ''^ "««"- m support of it. even then I o« "^-^ ""'"S witnesses "mme as to particular S^Zr'"'"'' """ ""* ^- '?tness as to the part cuhr 'ft. 1 *"!" T" «•* ""'s h's opinion. J'-^t'cuiar lacts on which he founds Jil^mcy General—With ornof i r ^^not touch ^ili:^^'SS1^ Igte '''"oSn; 'f^;.''. ""[ ^y - -'« about Ke,e. • '^different and bad. "'^'^ '^' '**''« J'^". «nd hi. cha««^ I '''"'«" "'^' « hat h.n, he. dono .hat i. bad? r # 88 an authority applicable to the point under consider- ation. 'I his man says he considers De Lorge a bad man because he has deserted. A great deal may come out on that point. Chirf Justice SewelL — Then shew me what does apply to it It has been my authority for upwards pf twenty five years at the bar and on the bench, and will remain so till I am convinced I am in er- ror. If different principles should govern our deci* sions, shew us the authorities by which they are sup- ported, and we will embrace them, if they convince us that we have previously been wrong, though for years we have been governed by this and similar authorities. "^ Mr. Stuart — I think I have a right to complain of one part of my learned friend's conduct, which is, that he should represent that it is only because De Lorge deserted that we consider, or rather have proved, him to be a bad man. The verv reverse is the fact. We proved him to be unworthy of belief upon oath by this witness, whose cliaracter we shall support by the most respectable testimony, and we ;diall also produce additional evidence as to the total worthlessness of this man, De Lorge, from almost innumerable circumstances. Chief Justice SewelL — If to his general character, you may undoubtedly examine witnesses as long as you like, if it is to particular facts you wish to gOt and thence to infer that his character generally isj bad, you certainly can not. If you have fifty wit- nesses, bring them afterwards to attack those of the I Crown, or to support your own if attacked, which is an alteration from tne practice heretofore, and Ij think a very proper one. ider consider- e Lorge a bad :eat deal may aie >what doe» y for upward* on the bench, ed laminer- overn our deci- ch they are sivp- if they convince ,iig, though for this and siinuar ght to complain conduct, which : is only because •r, or rather have le very reverse is nworthyo^^^M liaracter vi^e shaU istimony, and ve ice as to the total ge, from ahnost reneral character, messes as long as you wish to go, kter genetally ^ )uhave fifty/J^- ttack those of the ,• attacked, which [heretofore, and i 89 Cross ejcamination resumed by the Attorney General. Ducharmc, — J'ai vu la tente de Keveny en haut des Dalles d neuf heures du matin, et le meme jour a deux heures de i'apres midi, j'ai rencontr^ Mons. M'- Lellan. Je n'ai pas dit a Mons. M'Lellan que j'ai vu )a cente, et je n'^tois pas surpris de la voir, parce- que c'est comtnun parmi les Fran9ois. C*etoit une tente de toile ce que n'est pas commun parmi les Sauvages, mais parmi les Canadiens elles sont com- munes. Je n'ai pas vu une autre en allant ce tour Mr. Stuart. — I shall now call witnesses to support Ducharme*s testimony, or rather his character for veracity. I shall call Colonel Fraser. Solicitor GeneraL-r^-The course proposed by my learned friend is rather a novel, but perhaps in this case, a very necessary one. The general mode, I believe, is to consider a witness's evidence and character good, till they are attacked. My learned friend's witnesses appear to be an exception to the general rule, and he is, I suppose, going to givf them a good character, from a conviction that the contrary ma.y be attempted (how successfully I will not say, tho' certainly something like alarm is ex- hibited in this course,) to be established. It is npt» however, a very regular, any more than a usua]» practise. Mr. Fanfelson.^^We have, by a witness, an en- tire stranger here, attacked the testimony of the {*'') I 89W Keveny*8 tent above tho Dalles at nine o'clock in |tlie morninff, and the «ame day at two o'clock in the afternoon, I net Mr. ATLellan. I did not tell Mr. M'Lellan that I had seen Ite tent, and I was not surprised at seeing it, because it is a usual liing amongst the French. It was a canvas tent, which is not ^ommon amongst the Indians, but amongst the Canadians they re common. 1 did not see any other in going tliat trip. M h^'y , 90 w M Crown, we certainly have a right to shew his cha- racter to the jury. Solicitor General. — Oli certainly, I dare say it is very necessary. ^ C/iief Justice SewelL — Yes, you may do that- Solicitor General — We have not the slightest ob- jection. Colonel ALEX. FRASER, sworn, and examinedf by Mr, Vanfelson. Col Fraser^-r^l know Nicholas Ducharme com- tnonly called Colishe Ducharme. I have known him upwards of twenty years. His general charac- ter is most excellent. Cross examination conducted by the Attorney General CoL Fraser.~^l have been in the Indian Territory more than twenty years. I am not now a partner in the North West Company. I was a partner for almost twenty yiears, and I was in the country nine years before I was a partner. FRANCOIS TAUPIER, sworn and emmined, bj Mr. Valliere de St. Real. Taupier, — Je connois Augustin Poirier dit De Lorge depuis quinze ou seize ans. Je le connois- sois premierement dans les pays Sauvages, o^ il a toujours reste, et moi aussi, jusqu*a ce que nous avons descendu. Personne n'avoit bonne opinion de lui, et on le consideroit comme uu homme eo qui c'^toit impossible d*avoir confiance. Je le con* sidere ainsi moi meme. D'apres son caractere general il seroit impossible de le croire, mdme sur son serment. Je suis un voyageur, et j'ai souveot voyag^ dans un canot allege. Je connois le portl d'un tel canot. Ilsontentre vingt sept et vingtl h ;♦;;;■ 91 shew his cha- I dare say it is ay do that, the slightest ob- and examined, Ducharme com- 1 have known J general charac- Attorney General J Indian Territory ot now a partner was a partner for the country nine and e^aminedi btf leal. m Poirier dit De I. Je le connois- [* Sauvages, oii il a m'a ce que nous lit bonne opinion le uu homme en iance. Je le con- [res son caractei«| •roire, m^nie sui ir, et yai souvent huit pieds de gabarc au long du fond. L'equipage d'un tel canot est de huit hommes ^ Tordinaire, avec ieurs provisions et butin, et deux ou trois bour- geois. II seroit impossible de fairc aucune marche avec seize hommes et leur butin et provisions. II &udroit suivre le rivage, et cela me me ne seroit pas sur. II y a ordinairement a chaque canot un guide qui est maitre du canot, m^me quand les bourgeois y scat, et il met X terre comuie il veut. En faute de guide c'est le devant du canot qui' est maitre. Si les bourgeois vouloient charger le canot plus que le guide ne trouve convenable, il a Tautorit^ de I'empecher. Si le guide n'a pas voulu pour prendre un homme, il ne pent pas aller, parcequ'ils sont gens ayant connoissance du chemin et sont tovijours maitres dans les canots. Quand les bour- gedis ont des ordres d donner cY'st au guide, ou au devant du canot. Je n'ai jamais vu en route que les bourgeois et les autres hommes conversent, except^ par necessite, et ce n*est pas 1* usage pour les hommes de jaser ensemble, parcequ'en parlant ils n'avancent pas. C'est ouvrage assez dur de na- ger, et pendant qu'oii nage c'est necessaire, ou il faut, qu'on parle bicn fort pour s'entendre. S'il y avoit trois hommes sur une barre, on ne pourroit pas nager. Chi^ Justice SewelL-^Dc quelle largeur est une bapre ? Taupier, — La barre du milieu est au bourgeois, et a quatre pieds de largeur. Celles des hommes sont de trois pieds et demi le premier cotitre les bourgeois, et en diminuant de I'une a I'autre. Je fais des canots. (^^) (^ » ) F. T. — I know Augustin Poirier dit De Lorge forfifteca I or sixteen years. I knew him first in the Indian Territory, where until we came doMrn. No one had a WM considered as a man in whom it I'.li 11 ?i"^'« •J * »M/\ia le DOltl he always lived, and I too, u ' connois ^^rjgood opinion of him, and he igt sept et vinj*" 9^ ,«\i ■;:^. m p ' y ' r^ CV055 ejcaminalhn conducted by the Attorney General, Taupier, — 5g suis au service de la Campagnie dii Kord Ouest. Tous les engages du Nord Oucst sont d*un bon caractere. Je n'ai connu que De Lorge qui n'ctoit pas. Je demeurs a Cliambly. De Lorge ^toit au service de la Compagnie du Nord Ouest six ou sept ans, et il a deserte. II n'6toit pas de- charge pour mauv^ise conduite. Dc Lorge a con. tinu^ au service plusicurs ans. J'^tois avec lui, et j'ai couch6 aVec lui la nuit qu'il a deserts. II a was impossible to have confidence. I coniiiJcr liim in tlie same light my self. Taking his general character into considerutioti, it would be impossible to believe hiin, even upon hitt oath. 1 ant u voyageur, and I have often voyaged in a light canoe. 1 know the burden of such a canoe. I'hey are between twenty seven and twenty eight feet in leugUi along the bottoito. The <:rt:n' of such a canoe consists generally of eight taien with their provisionji jind baggage, together with two or three gentlemen. It wouM l)e impii'ssibte to make any progress with sixteen men and their baggage and provisions. It would be necessary to follow the M'indiagft of the shores, and that even would not be safe. In each canoe there is generally a guide who is master of the canoe, even when the bourgeois are on ooard, and he puts ou f^hore ns he likes. When there is no guide it it the frdnt man ^devunt) of the canoe, who is master. If the bourgeois were inclintd to load the caiiou more than the guide thought right, he ha^ power to pre- veiit it. If the guide would not take a man on board, hu can not go, for .they are people who know the route, and are aivi'Hvs masters in the canoet>. When the gentlemen have any orders to give, it is to the guide, or to the front man (devant) of the cano* . 1 never knew that the gentlemen and the other men converntl together on the way, unless from necessity, and it is not tlic custom fur the men to chatter to one another, for by talking tiicy are prevented from getting on. It is hard enough work to pad- dle, and whilst paddling, it would be necessary, or it can not be avoided, to speak very loud, in order to understand one anotlici. if there were three men upon a bar they could not upon C. J. 8 — Of what size is a bar ? paddle. P. T. — The niiddle bar is that of the bourgeois, and is of the size of four feet- i'hose of the men are, tliree feet and a half, the first next the bourgeois, and so on diminishing fironi one to the otiier. I axw a canoe- ranker. 93 omey General Campagnie d\i ord Oucst 8ont lue De Lorge Jy. De Lorge u Nord Quest n'6toit pasde- c Lorge a con- oisavec lui, et deserts. H a cr Inm «n tl»e satnc intoconsitleviitHrti,it on his oath. I «>" ^ iht canoe. I ^"ow twecn twenty sfvtn Itorti. The < ri w ol ; with their provwiom ;entlemen. It wouil itefn wen and tncir lessary to follo^v tli« not be safe. Ir^ each ler of tin tanoe, oen juts on phore as he int man ^aev.mt) ol were inchntd to load It,hehttf powertopre- lan on board, he can ,ute, and are alv*»y8 eu have any orders to devant) of tl.e canc other men converst.l , and it is not the T, for by talkjPK they nough work to pajt- ary, or it can not be lerstand one anoUiti. lid not paddle. Lrgeois, and is of the tree feet and a ha», finishing itow one to deserts dans la iiuit ; nous co'jchions ensemble, et ie matin il 6toit parti. Attorney General — Vous dites qu'il' a deserts, que comprenez vous par desertion ? Tanpier. — 11 me paroit qu'un liomme deserte, si deux se couchent ensemble, et qu'au matin un est parti, et a void le chapeau de I'autre ; et au matin quand je m'dveillois, j ai trouv6 qu'il dtoit parti, et mon chapeau aussi. Je n'ai vu que huit hommes ct les bourgeois dans un canot comme celui dc Mons. McLellan. (w) JAMES CHISKOLvI M'TAVISH, sworn, and e^vmnined by Mr, Stitart. Mr, McTavish,-^ was formerly a clerk to lite North West Company. We endeavour to select the best men ; that is, men of the best character we can, for employment. I know Augustin Poiricr dit De Lorge, and have known him for several years, a part of which time he was in the service of the North West Company. I had, from my situation, means to know hiK general character. The gene- ral character of De Lorge was that he was a very ( * • ) F. T. — I am in the service of the North West Company. All thp servants of .the North West Company are of good cliarac* ter. I knew only Dc Lorge who was not. I live at Ciuimbly. De Lorge was six or seven years in the service of the North West Company, and he deserted. He was not discharged for bad conduct. De Lorge remained several yeais in the service. I was with him, and we slept together the night he deserted. ] le deserted in the night ; we slept together, and in the morning be was gone. A. G. — You say he deserted, what do you understand by de- sertion. F. T. — It appears to me that a man deserts, when two sUh>p together, and m the morning one is found to be gone, and to huve ttoien the hat of the other ; and in the morning when 1 waked I found he wOs gone off, and my hat v^ ith him. I never mw more than eight men and the bum^geois, in u cauot* like thnt of Mr. M'Lelian. » 94 disaffected servant, and not trustworthy. From v/UsLt I know of liim, and of his general character, I consider it so bad, thai I wv/uld not believe him upon his oath. Chi^ Justice SeweJL — 1 do not; Sir, exactly un- derctand what you mean when you say that De Lorge was a disaffected servant. Would you ex. plain what you would have us understand by the term ? Attorney General. — I feci obliged to your honour for putting the question, as it is quite a new term to me, as applied to servants ; disaffected, I have always utiderstood to mean disloyal, and 1 do not see how that is to apply to persons in their situa* tions, as servants to a trading company. Mr, McTavish. — I always found him a displeased and discontented servant ; dissatisfied with every thing that was done, and extremely disaffected to the interest of his employers. Cross examination conducted hy tlie Attorney General, Mr, McT'avish, — I was eleven, years in the ser- vice of the North West Company. We endeavoured always to select the best men we could for employ- ment. Dc Lorge, to my knowledge, was eight years in the service of the North West Company. When I lell the Indian Country he was either m the stTvice of the Hudson's Bay Company, or of the Earl of Selkirk, having, as I understancl, deserted the Company's service, before his engagement had expired. Attorney General, — A person quitting the seiTice of the North West Company, and entering into that of tlie Hudson's Bay, or of Earl Selkirk, would not, I believe, stand very high with the North West Com))any ? orthy. From eral character, )t, believe him ;ir, exactly un- n say that De iVoulil you ex- crstaiid by the to your honour ite a new term itlected, I have , and 1 do not } in their situa- any. him a displeased sfied with every ly disaffected to ittorney General wears in the ser- We endeavoured ould for employ, edge, was eight West Company. le was either in >mpany,oroi'the ;rstand, deserted [engagement had Itting the senice M entering into Irl Selkirk, would Iwitli the North 95 Mr, M'Tavhh, — He would stand high with them afler quitting, if he had finished his engagement like an honest man, but certainly not, if he went away before his term of engagement was up. Attorney Generals — You do not, I believe, engage persons in your service, but for a term of years, and they sign agreements before they go up? Mr, M ravish, — Persons in the service of the North West Company generally enter into indent- ures for a term of years before they go up to the Indian Territory. Attorney Gena^al,-^- And it is not an unusual thing, I believe, for persons who are dissatisfied, or, to use your own term, disaffected, to quit the service pre- vious to their indentures expiring, by what you call desertion ? Mr. M*Tavish, — I have, during the eleven yean that I was in the Company's service, known but few persons quit it before their indentures had ex- pired, and among those who did, but very few who were honest men in other matters. Attorney General, — How, Sir, is a person to be relieved from the service of the Company, if dis- satisfied with it, except by what you call desertion ? Mr. M'Tavish, — Very easily. If persons go up to the Indian Territory, and do not find it suit them, upon applying to the Company, they are permitted to return as passengers, in the first canoes that are going to Montreal. Attorney General. — I would again ask you. Sir, whether by disaffected, you mean that De Lorge was any thing more than a servant not quite satis- fied with his employers ? Was he quarrelsome ? Mr. M*Tavish. — By dissatisfied, I mean that he was a man not easily pleased, a discontented, dis- satisfied, servant himself, and one who tried t« 96 make others so. I can not say that he was particu< larly quarrelsome. 7/ being past six o*clock\ the Court was adjoumec till 8 o'clock A. M. on Mmday morning, Monday \5th June 1818, 8 o*clock A, M, PRESENT AS DEFORE. Tlie Court being assembled^ the jury were called ffver^ and being all present. JEAN. CREBASSA, sworn, and examined by Mr, Stuart, Mr, Crebassa, — I was in 18lG, and still am, a clerk in the North West Company's service. I have been so for upwards of sixteen years. The summer and autumn of that year, I was stationed at Bus de la Riviere Winnipic. I have knowledge that Mr. Keveny arrived there between the middle and latter end of August, but I do not recollect on what day it was. lie was a prisoner, in custody of Charles Dc Reinhard, who was accompanied by a man named CastcUo, one called Matin, another La Plante, and two others, whose names I do not re- member. He arrived at Bas de la Riviere, about two o'clock in the afternoon, and went away from there the next morning. They were sending him to Lac la Pluie, and thence to Montreal. Lac la riuie and Fort William are in the usual route from Bas de la Riviere to Montreal. Louii Lacerte, La Plante, Michel Matin, and two others, whose names 1 have forgot, went with him. Mi\ Stuart, — W^ere not Vassall and Vaudrie the other two, do you think ? Mr, Crebassa, — \os, they were the other two. Neither De Reinhard, Mainville, nor Jose Fils de he was pariicu- f was adjourned ling. o'clock A. M. If were called over, t. xamined hy Mr, and still am, a any's service. I :een years. The \ I was stationed have knowledge tweenthe middle [) not recollect on iier, in custody ot :companied by a I^tin, another La ,mes I do not te- la Kiviere, about L went away from ;ere sending him lontreal. Lac la usual route from .ouis Lacerte, La icrs, wbose names and Vaudriethe the other two. m Jose FUs dc 97 la Perdrix Blanche, accompanied him. We had no persons but bois brul6s at Bos de la Riviere when Keveay arrived, excepting two old Canadians, engages, who were accustomed always to stay in the fort, and work at the farm, and in the garden. The distance between Bas de la Rividre and Lac La Pluie is about seven days march for a light canoe well manned, and nine or ten for a loaded one. Four or five days afler, Alexander McDonell arrived at Bas de la Riviere. He staid one day there, and then proceeded to Riviere Rouge his nsual post. The capture of Fort William was not then known* Four or five days afler, we received information from Mr. Stuart, who came to Bas de la Riviere, that Fort William hail been taken by the Earl of Selkirk. Mr. Stuart came in purposely to communicate this information to us, and to other of the North West posts. It is two days march from the first post at the Forks of Red River to Bas de la Riviere, and information of this circumstance was communis cated to Red River, and Mr. McDonell came do«vn in one day afler. Mr. Stuart. — I understood you that it was two days march, how did Mr. McDonell come in one ? Mr. Crebassa, — He came down in one day, that is, he set off in one day atler the information was re- ceived by him, and arrived at Bas de la Riviere in six or seven days after the communication had been forwarded to Red River. Mr. Stuart. — There is one question occurs to me which 1 ought to have put at an earlier stage. Was Mainville at Fort Bas de la Rividre when Kevenj first went down to Lac la Pluie ? Mr. Crebassa. — He was. Chief Justice Sewelh — 1 will then make a forme? pait of the evidence read thus in my notes, " Main* N 9S ville did not go with him, but was at tlie fort at the time he went away.'* Mr. Stuart. — Did the capture of Fort William occasion any extraordinary feeling at Bas de la Riviere ? Mr. Crebassa.'-^The capture of Fort William occasioned great anxiety lest the ordinary supplies should not come, as Fort William is the usual chan- nel through which supplies come to the interior, and very great iniury was apprehended to the trade. Personal injuries were also anticipated to the part, ners, and others accustomed to trade with the North West Company. In the first place we apprehended great danger nom the want of provisions, as, if we did not receive our usual supplies from Fort Williaqi, having no merchandize, we could not barter with the Indians for provisions ', and if we had not where- with to buy food from the Indians, we must certain- ly starve. V/e were also in want of nets for fiish- ing, as we depend a good deal on that source for supplies in that country. Mr. Stuart. — It became then a very serious mat- ter to you if you had neither merchandize to bar- ter with Indians, nor fishing-nets, as of course with- out them you could catch no fish. Did you, Sir, or the gentlemen at Bas de la Riviere, take any step in consequence of this state of things, and what measures was adopted ? Mr. Crcbassa. — It was in consequence determined to fit out a canoe, to go in the direction of Fort William, and see whether any canoes were coming into the interior. This canoe proceeded the day afler Mr. McDonell's arrival, and Mr. McLellan went with it, as it was considered an object of suffi- cient importance that the principal partner at the station should go. lliere also went in the canoe, Cuthbcrt Grant, Joseph Cadotte, Charles De Rein, /^^- 99 tlic fort at the f Fort William at Bas de la f Fort William rdinary supplies 1 the usual chan- the interior, and id to the trade. Led to the part- le with the North we apprehended visions, as, if we :om Fort William, not barter with ive had not where- , we must certain- of nets for fiisli- i that source for very serious mat- rchandize to bar- as of course with- Did you, Sir, f^re, take any step things, and what luence determined lirection of Fort lioes weie coming loceeded the day Id Mr. McLellan an object of snffi- i\ partner at the Int in the canoe, Charles De Rein, hard, Mr. McLellan's body-servant Rochon, one Lorrain, Michel Matin ■ Chirf Justice SewelL--^Yo\i stated, Sir, some time ago, that this Michel Matin went in the canoe with Keveny when he was sent to Lac la Pluie. Here ii some mistake, I fear. He could not have gone with Keveny and then go with Mr. McDonell. Mr. Crebassa. — He did go with Mr. Keveny, but when Mr. McDonell met them, he put Mr. Keveny in charge of Faye and others, and Matin returned with Mr. McDonell to Bas de la Rividre, and now accompanied Mr McLellan to go and look for the canoes. Mr, Stuart — Do you recollect any others who went? Mr. Crebassa. — Yes. Le Vasseur, La Plante, Vassalle, Vaudrie, Lorrain, and some others, I be- lieve ; tliey had all returned when Mr. McDonell went up to his station. Mr. Stuart. — I beg that may be taken down. Chief Justice SewelL — Did Mainville go with them ? Mr, Crehassa.'^YeSf he did. Examination Resumed hy Mr. Stuart, Mr. Crebassa. — Un canot pent faire quarante cinq milles par average (^) Mr. McLellan returned to Bas de la Riviere, twelve or fifteen days after he had lefl it, to the best of my recollection. De Rein- hard was not with him when he arrived. He arriv- ed about three o'clock in the aflernoon, and re- mained there that and the next day, and on the day next but one after, ♦he went to the Forks of Red River, which was his station. I am acquainted with Mr. Heurter, He was, I believe* at the time, a (**) A cunoe can go, upon an aYtf&ge, forty fiv^ mllos, 100 t' t rtl h m I'-y i*?*^f J I AWff.9't ^ ■ tlerk iu the sdrvice of the North West CompanVf as he was acting as such. Heiirter had lefV. Fort * Bas de la Riviere previous to Mr. McLellaii's arriving there. He did not leave alone, but with a brigade for Red River, whore he was going to winter, There arc several posts on the Red River, and the stationing the different persons is regulated at Red River, whither Mr. Heurter was going, and he would proceed after wards to such station as his en)p]o)'era might appoint him to. 'J he first time I saw Heur. ter afterwards, was at the Forks of Red River, and he was then in the service of* the North West Com- pany ; this was in the month of March following. Kochon and Vasseur were, I think, the only enga. ghs who went in the canoe with McLelian, the others went from feeling a common interest in as. certain ing whether canoes were coming inio the in. terior. They went voluntarily. Wlien Kevenv arrived at Bas de la Riviere, he was in custody of De Reinhurd. It is not usual to have handcuffs at the North West })()sts, n(M- were there any at Bas de la Riviere that I know of at the time Keviny was there. Had tliere been any there, as 1 was chief clerk, 1 think 1 must have known it. ("One ofthejm^y was reported to be sick and Doctor JFargues was sent for, J Mr, Crc/w.v.9^.— When Kev(?ny first went from Bas de la Riviere, Mr. McLelian told Lacerte and the others to take gooil care of him, auil to treat him kindly. 1 hoard hiiu give these directions. Cross cjcamination conducted by ih • Attorney General Mr, Crebassa.' — It was about four or five leagues distance from Bus de la Rivitrrtt, higher up, wliere Keveny was apprchendetl by De Reinhard. The canoe in which McLelian went away had no other 101 object in view than to ascertain if provisions and goods were coming into tlie interior. The persona who went were armed, according to the custom of the countiy, that is every man had his gun. I hoard instructions given by McLellan to be kind to Keveny, and to take care of him. Tliey were given to five bois brules. The bois bruUs are half In- dians. Attorney General — Had either of these bois bru- its ever been at Montreal ? Mr, Crebassa, — Lacerte had been at Montreal. I do not know for the others. Attoimeif Cicneral, — His iiaving been there could not, I believe, teach him much of the way. He went when he v/as a childi did not he ? Mr, Crchassa. — Yes, he went down when a child, and returned when he was a man. Dr. Fargttes W'(W then suorn to examine the jury- man as to the state qfhis health, and to report to the Court his opinion whether the juror was capabte of siintaining the fatigue ofattenrting to the trial. The Doctor, shortly ajkr, reported that he did not consider the state of the gentleman* s health to be such as to pre' venl hh attending, JAMES CHISHOLM McTAVISH, mom. and examined by Mr, Vanjelson, Mr, McTavish,^^! was at Fort William from the month of June m 1816, till the 4th of September in the same year. Mr, Van/elson,-^Wixs it taken possession of by an armed force, and wiien ? Mr, McTavish, — It was taken on the 13th of August, by an armed force. Mr* VanfciSQn.-^l^tMe how it was taken. lot •^ f M' Solkitor General. — Surely the time of the Court is not to be taken up by un examination m to how Fort Wi!lia»i was taken. What effect can the man- ner in which it might be taken have upon a charge oi* accessary before anil after a murder ? Ckie/ Jus/ice SfXcvlL — I do not see of what service it can possibly be to shew how Fort WiUiam was taken. The fact you have obtained ; I should think that quite sullicient. * Mr. Fsa. Mr. Ctebafi>a haa sworn, that io cor^sequcMice ot^lu- Ciipture of I'ort Willirtiri, they dispaiched a eim>e !oiis.*e wljcUt.T tho fjoods aiul provisionn which tht'y were accuftonuii to receive from I'ort W illiam, and which were then expected, Were coniii*^. In my humble opinion it is of great conseijince to tiie prisoner to prove the manner in which the fort was captured, bccnujse. your honour, you will recollect that the •ending of tiiii* canoe has been represented by luy learnt d breth- ren, the officers of the Crown, as the result of a conspiracy againit the Ui'c of Mr. Keveny. 5 of the Court tion as to how t can the roan- upon a charge or? e of what service ,rt WiUiam was • I should think iir, inon objct est cbassa. Mors, le la prise lUi 1 oi t ur voir si les mar- yit aciouturtit^ tic 1 attendoit d re humble opinion, au prisonnier Ae Li fort, parceque, I bien, que d'cn. par mes savans lonne, comme !• la vie de Keve- yavfehon. Las taken forcible It, by the Earl of U to corrojorate tlic has sworn, lliai \a »,, they thspaiched a Lw which thty wort [nd which were then Ipinion it is of grcRt Kner in whicli the tort lill rtcollcct that the \y my iearma breth- Wa conspiracy ogainit 105 Selkirk, and was retained in his possession, to my knowledge, till the 4th of September, when I led it. I know that,* in consequence of the tal ing oi Fort William, the communication from Montreal to the interior was entirely cut off, and they who had pos- session of the fort, ^that is Lord Selkirk,) prevented any canoes from gomg into the Indian Territory, At the time of taking the fort, ttie canoes and goods were all ready to start, if they hail been permitted. Their detention was productive of great inconve- nience, and might have occasioned the most serious consequences to all who were in the Indian Terri- tory. The clerks and servants of the North West Company were exposed to a state of starvation, owing to the canoes not going, as usual. The ca- noes usually depart for the interior, from the latter end of June to the early part of August ; from about the beginning of July to the 12th August. Cross examination conducted by the Attorney General. Mr, McTVnywA.— Lord Selkirk stopped the canoes from going into the interior. I applied to him re- peatedly, both in writing and personally, for leave to send oil* the canoes, but he said tltat he could not permit them to proceed, but I do not recollect that he gave any reason. Attorney General — Had you heard of the destruc- tion of governor Semple and his people ? Chief Justice SewelL — No, Mr. Attorny General^ vou must not attempt to put that question ; it can {have nothing to do with it. Attorney General. — ^l beg the Court's pardon ; I I want to refresh this man's memory, that perhaps he may remember that the circumstance of tlie destruc- tion of governor Semple, was assigned to him as the reason why the canoes were not permitted to pro- ceed The stoppage of the canoes has been proved. 104 i.m i »!('■ m. ^^%' and is in evidence before the jury ; if we can prove that a reason for stopping them was given, have wf not a right to place it before the jury, «o that the) may judge whether it was not a justification ? Chi^ Justice SexvelL — We are not trying Lord Selkirk. The prisoner shews the fact that the ca< noes were stopped, why they were stopped, can be of no consequence to this trial. It can not alter the fact. The reason the prisoner went off in the canoe has been stated to be that, Fort William being taken, they were apprehensive that their supplies might be stopped. They have now gone a step farther, and proved that Fort William was taken, and that the canoes were stopped, and that the supplies did not go up. This is the fact, which can not be varied as to the prisoner, by any reason being assigned for so preventing them going up. Attorney General, — I beg leave to submit, that if it is. necessary to the defence to prove that the ca- noes were stopped, it may perhaps be of equal im- portance to the Crown to shew that they were pro- perly stopped. Mr, Stuart. — I should like to know what difference it was to make to the prisoner if he was to starve^ whether it was because the canoes were rightfully or wrongfully stopped. Attorney General, — I have no desire to waste time In argument. I shall repeat the question, and the Court will dispose of it as they think proper. Had you heard of the death of governor Semple, and the destruction of his people, and was not that assigned to you as a reason for not permitting the canoes to proceed ? Chief Justice SewelL — I can not allow it, Mr. At* torney General. . Were I to do so, the gentlemen on the other side would wish, and be entitled, to g^ into their history of this transaction^ and wher« if we can prove given, have we y, 60 tliat they ification ? lot trying Lord ict that the ca. stopped, can be can not alter the It off in the canoe iliam being taken, supplies might be itep farther, and en, and that the supplies did not tt not be varied as ng assigned for so to submit, that if rove that the ca- s be of equal im- lat they were pro- low what difference lie was to starve, ;s were rightfully iesire to waste time [question, and the link proper, governor Semple» I and was not that lot permitting the it allow it, Mr. At^ BO, the gentlemen ■ be entitled, to go ction, and whert 105 should we end ? uiul besides all wliicli, it has not the most remote bearing on the case. MICHEL MAi:rN being called, -entered the box. TIte Solicitor General slated that be/ore Matin was stvorn, lie wished to cjramine him as to his religious helirfj upon which Matin staled himself to be qf the Roman Catholic religion^ but has not lateUj tak- en the communion. Being questioned as to his tmderstanding and knowledge (^' an oath ; he an- swered'-^ Matin, — Je suls sorinente pour dire la veritiJ. Chief Justice Sewell, — Et si vous lie le dites pas, quelle sera la consequence ? AfflA'n.— Que je serai damne. ("2) Chirf Justice Sewell, — Let him be sworn. He was accordingly sworn, and examned by. Mr. Stuart,. Michel Matin, — Mon nom est Michel Matin. Je suis un natif du pays d'en haut. Je connois le poste de Bas de la Riviere, et j*y ^tois en 1816. Je con- nois La Plante. II in'a demand^ dans V€i6 de 18]6y d'aller plus haut avec lui et De Reinhard pour pren« dre quelqu'un prisonnier, et je suis all^. De Rein- hard alloit comme connetable. J'ai 6t6 U en canot* II y avoit deux ou trois lieues de distance de la jusqu'i Pendroii oi De Reinhard (Keveny) ^toit. Apr^» que nous Tavons pris prisonnier nous nous sommes re- tourn^s directeroent au fort, ou nous sommes arrives vers cinq heures de I'apr^s midi. II y a couche, et le lendemain nous sommes partis avec Keveny pour le C be? (•«) M. M. 1 am sworn to tell the truth. And if you do not tell it, what will the congequeace II'' M. M.— -That I shall be damned. o lOti m '4' ^ ." ? '■AV, M "if '-it" ' Lac la Pliiic. Avant ca M^ns. McDonell ^toit tendu de Fort Williana, mais il n'etoit pas arri' II y avoit dans les caiiots, La Certe» La Plan Vassall, Vaudrie, et moi, et nous ^tions dans de petits canots» parcequ'il n'y avoit pas un grand not au fori. La Certe nous a dit que les ordres Mons. M'Lellan 6toient dWoir bien soin de Ke ny ; quand nous partimes da Bas de la Riviere, n'ai pas vu des fcrs aux mains dans le canot ; n pas des manchettes. Apr^s avoir quitt^ Bas de Riviere, nous en trouvdmes des manchettes au P tage, dans le barge de Keveny. CVtoit ^ une c tance de deux ou trois lieues plus haut. On lul r ces fers. Nous avons march^ qiiatre ou cinq jou avant de rencontrer Mons. McDonell. Au Bas la Riviere nous avions laiss^ De Reinhard et Ma ville. Lorsque nous rencontr&mes Mons. McDc ell, il nous fit revirer et retoumer» et il don Keveny en charge k Fave et La Pointe, avec Joi pour Tamener au Lac la Pluie. J'ai connoissan que Mons. McDonell lui fit 6ter ses fers, et I'a trai amicalement, et dejeun6 avec lui, et il lul a doni de Sucre blanc et deux bouteiiles de rum, i ce qi je crois* Mons. McDonnell parloit au Sauvaj Josd, par interpr^te, en Sanlteux. Je le parle m ra^me. Le Sauvage savoit la route, et il pai Saulteux, et je le parle. Mons. McDonell I'a d et jc I'ai entendu, "d'avoir bien soin du prisonnie et lui rend re au Lac la Pluie aussi vite que possibl tt)ur y roDcontrer les canots qui monteroient a wvi^re Houge et retourner les avec." Cadot 6toit I'interpr^te, et j'ai entendu McDonell donni ces ordres, et je les ai bien compris. Corame Josep venoit de la, cela lui coutoit d'y retourner, mais Ci dotte Je persuada consenter. Avant que nous pa times du Bas de la Riviere, M'Lellan n'avoit pi «icore vu McDonell. .Fai entendu toute laconve cDoncll ^loitat- I'etoit pas arriv^. :ertc. La Plante, ) 6tiona dans deux pas un grand ca- que les ordres de lien soin de Keve- I de la Riviere, je lans le canot ; non r quitt^ Bas de la nanchettes au Por- CVtoit iiunedis. shaut. Onlulmit Liatre ou cinq jours, )onell. Au Bas de Reinhard et Main, nes Mons. McDon- lumer, et il donna I Pointe, avec Josd, J'ai connoissance isesferst etl'atraiU li, et il lui a donn6 s de mm, i ce que parloit au Sauvagt ix. Je le parle moi route, et il parle f. McDonell Ta dit, 8oin du prisonnier, |si vite que possible, i monteroient a la avec." Cadotte McDonell donner IS, Corame Joseph etourner, mais Ca- ant que nous par- iLellan n'avoit pai idutoutclaconver. 107 sa^on cntre Cadotte et Jos^, et cntre McDonell et Cadotte. Faye et La Pointe f urent cnvoy^s avec Jos^ et Keveny. Joseph avoit son fusil, conime c'est I'usage et necessaire en ce pays B, en cas que les vivres roanquent. La Certe, La Plante, Vassall, Vaudrie, et moi, ^tions des engages. Nous avons re^u des ordres de Mons. McDonell de retoumer avec lui ; il nous a dit de retourner avec lui, au Bas de la Rivi^e, et nous le fimes. Le guide est celui 3ui conduit la roarche et regie le tems du depart et 'embarquement, et Jos^ ^toit le guide de ce canot. Ala Riviere Rouge, ous avions appris que Fort William avoit tt6 pr ar les gens du Mi Lord. J'y ^tois mont<^ avec Mons. McDonell, et en conse- quence nous avons descendu au Bas de la Rividre. De la, comme les canots de Fort William avoient manqu^s terriblement, nous partimes avec Mons. M'Lellan pour rencontrer les gens des canots qui I montoient A la Riviere Rouge, et pour nous assurer s'ils venoient Desmarais ^toit le guide de ce canot* et il Y avoit qui partoient avec Mons. M'Lellan, Lorrain, Vasseur, bonhomme Montour, moiy Main- ville, Vassall, et un nomm^ Rocbon. Mons. Archy l^toit bourgeois du canot, et avec lui il y avoit Ca- dotte, Grant, et De Reinhard. Nous nous sommes Ireadus au Lac la Pluie, et en allant nous trouvdmes |jos^ sur la pointe d'un galet dans la riviere Winni- pic. II n'avoit qu'une chemise pour s'habiller, et il I'avoit de couverte, point de tout. A cette saison, 3ptembre, il commen9a faire froid, le matin et le }ir. M'Lellan le fit embarquer avec nous. Nous kvions pas d'attente de trouver le Sauvage 14. , Mr, StuarU — ^Le Sauvage, qu'est ce qu'il a iit ? («) (") M. M^— My name ii Michel Matin. I am a native of ic country above. I know the poft of Bat de la Riviere, and I ^ufi tl;cre in 1816. 1 \ iu>w La Flante. — la the lummcr of ISlb'i 1^ # IMAGE EVALUATION TEST TARGET (MT-3) // 4^ ^A 1.0 I.I z m 12.0 ■ 2.2 140 iJ& PM>4|<4 ^ 6" ► Hiotographic Sdaices Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14S60 (716) S73-4S03 J 108 SoUcilor GeiieraL — Wliat the Savage said can not be evidence. he asked me to go higlicr up with him and D.e Reinliard to take some one prisoner, uiiu I went. De lleinhard went as a constable. I went there in a canoe. It was two or three leagues distance from there to the place where De Reinhard (Keveny) was. after we bad taken him prisoner, we returned directly to the fort, where ire arrived about five o'clock in the afternoon. He slept there, and the next ddy we went with Keveny to Lake La Pluie. ^ Be- fore that Mr. Macdonell had been expected from Fort William, but he had not arrived. In the canoes there were La Certe, La Plante, Vassall, Vaudrie, and I, and we were in two small canoes, because there was no large canoe at the fort. Lacerte told us that Mr. McLellan's orders were to take great care of Keveny. When we left Bas de la Riviere, I did not see any irons for the hands in the canoe, no handcu^. After we had lefl Bas de la Riviere, we found handcuffs at the portage, i^ Keveny 's barge. It was at the distance of two or three leagues higher up. These irons were put on him. We proceeded four or five days before we met Mr. Macdonell. We had left De Reinhard and Main- ville at Bas de la Riviere. When we ntet Mr.' Macdonell, he made us tack about and return, and he gave Keveny in charge to Faye and La Pointe with Joseph, to be conducted to Lake La Pluie. I have a knowledge that Mr. Macdonell caused his irons to be takep off, and treated him in a friendly way, and breakfasted with him, and gave him some white si^ar, and two bottles of rum, as I believe. Mr. Macdonell talked with tl^e Indian, Ji)seph, by an interpreter in the Saulteux language. I speak that lan- guage my self. The Indian was acquainted with the route, and he speaks Sauteulx, and I speak it. Mr. Macdonell told hiin, and I heard it,^* to take great .care of the prisoner, and take him to Lake La Pluie as speedily as possible, to meet the canoes whick would be goin^ up to Red River, and to return with them." Ca* dotte wds the mteipreter, and I heard Mr. Macdonell give these orders, and I understood them very well. As Joseph had come from there, he did not like to return, but Cadotte persuaded hin to consent. MXellan had not seen Macdonell before we left Bsi ^ de la Riviere. I heard the whole of the conversation betweci Cadotte and Joseph, and between Macdonell and Cadotte. Faye and La Pointe were sent with Joseph and Keyei)y. Joseph ha his gun as is customary and necessary in that country, in OA rrbvisions should fail. Lacerte, La Plante, Vassal, Vaudrie, ar , were engages. We were ordered by Mr. Macdonell to retw with him, he told us to return with him to Bas de la Riviere, at we did so. The guide is he who conducts the marcn and rego 9tes the times pt departure and of embarkation, and Joseph «i 109 lire said can not B Reinliard to Uke I went as a constable. >e leagues distance keveny) was. rfter tly to the fort, where 51. He slejpt there, ake La Pluie. Be- from Fort WiUiam, • were La Certe, La e in two small canoes, t Lacerte told U8 •eat care of Keveny. see any irons for the ehad left Uas de U in Keveny's barge. It es higher up. These ir or five days betore Reinhard and Main- t Mr.* Macdonell, he ?eK.eveny in charge to onducted to Lake La ioneli caused his u-on8 Iv way, and breakfasted andtfvobotUesofrum, tVe Indian, Joseph, ye. I speak that lan-l 'd with the route, and Macdonell told him,! prisoner, and take hitjl lo meet the canoes wluckl jturn with them." Cal •. Macdonell give thesel As Joseph had cornel I Cadotte persuaded H loncll before we left Baj conversation betwectf ai and Cadotte. Fayj « Keveiiy. Joseph '' |in that country, in < ' e. Vassal, Vaudrie, an r. Macdonell to retu* Bas de la Riviere, a itri the marcn and reg Ekation, and Joseph - Mr, Stuart, — It has been admitted to be so all along, and must again be admitted. It has been made evidence for the crown officers when against the prisoner, and must now be against them, when it makes in his favour. Solicitor General — This is merely parole testi- mony. Mr. Stuart, — It goes to credibility of witnesses, and we may certainly introduce it. Maiin.—^On lui demanda pourquoi il ^toit en cet etat, et il noiis Pa dit, mais je n'ai pas entendu sa plainte contre peisonne. Mons. Archy y 6toit. Jos^ avoit sa main blessde, et une bosse sur la tete. Je ne puis pas dire les jours exactement, mais peut- etre qu'il y avoit trois ou quatre jours apr^s que nous ^tions partis de la Riviere Rouge, lorsque nous ren- contratnes Joseph. II lui fit donner quelque chose pour se couvrir, mais je ne me souviens pas ce que c'etoit. Apr^s cela nous avons rencontr^ Faye et La Pointe sur une isle, a environ une demie lieue. Us crioient apr^s nous, et nous avons mis a terre. Nos gens ont demand^ de Faye et La Pointe, pour- the guide of that canoe. At Red River we had learnt that Fort William had been taken by the people of the My Lord. I had gone up with Mr. Macdonell, and in consequence of that, we came down to Bas de la Riviere. Thence, as -the canoes from Fort William had terribly failed, we departed with Mr. McLellan to go and meet the people, who were going up to Red River, and to ascertain whether they were coming. Desmarais was the guide of this canoe, and there were' who went with Mr. McLellab, LorraiB, Vasseur, Bonhomuie Montour, me, Mainville, Vassal, and one named Rochon. Mr. Archy was the bourgeois (commander) of the canoe, and there were with him, Cadotte, Grant, and Dq Reinhard. We proceeded to Lake La Pluie, and on the way we found Joseph on a rocky point on the River Winnipic. He had nothing but a shirt to clothe him, and he had no blanket, not any. Atthat season, September, it began to be cold, mornings and evenings, McLellan made him embark with us. We had no expectation of finding the Indian there Mr. S — The Indian, what did he say ? % ' li ll 110 4uoi lis ^toient li, et oh ^toit Jos^ i ils repondoSent que le Sauvage avoit voulu les tuer, et qu'il s'^toit sauv^ dans les bois. Quand Faye et La rointe voy. oient le Sauvage ils se defendoient Pun sur I'autre. Le Sauvage disoit que Faye et La Pointe l*avoient battu, et qu'il se sauva dans les bois. Faye disoit que ce n'^toit pas lui, mais La Pointe qui ra battu, et La Pointe disoit que c'^toit Faye qui avoit battu Joseph. Mons. M'Lellan a debarqu^ et les a bien reproch6 de ce qu'ils avoient battu le Sauvage, et avoient voulu le tuer, et comme Faye et La Pointe rioient de cela, il donnoit des coups de perche i Faye, Nous primes Faye et La Pointe avec nous, et la me me journ^e nous rencontr^mes les gens qui alloient a la Riviere des Cygnes, en brigade. lis ctoient cinq ou six canots, et les canots ^toient en general de la largeur de cinq hommes. Colishe Du* charme ^toit leur guide. Avant cette derniere ren- contre, nous demandames de Faye et La Pointe, ou ils avoient laiss^ Kt)veny. lis nous disoient qu'ils Tavoient laiss^ sur une isle, mais je ne roe SQuviens qu'ils ont dit combien de jours qu'ils I'a. voient laisse. Le Bunhomme Montour, qui est un bois-brule, a demande a Ducharme s'il avoit eu de connoissance de Keveny, et il a repondu qu'il I'avoit vu cette journ^e en haut des Dalles avec les Sau* vages. Je n'avois rien entendu, le long de la route, de la part de M'Lellan, ni 4'aucune autre personne dans le canot, ni aucunes paroles par rapport ^ Kev- eny qui indiquerent que M'Lellan, ou De Rein» hard, ou aucun autre dans le canot, avoient dessein de tuer Keveny, jusqn'au moment que nous ren- contrames les gens de la Riviere des Cygnes. J'^tois la premiere barre, imm^diatement apr^s les bour- geois, depuis le moment que nous avons reqcontr^ Jose, jusqu'a la rencontre des gens de la Riviere des Cygnes, et apr^s j'^tois toujours en avant de Faye 4^ Is repotodoieBt ct qu'il s'^toit La Fointe voy. un sur Tautre, ointe I'avoient u Faye disoit ic qui I'a battu, qui avoit battu 1^ etles abien le Sauvage, ct ^e et La Pointe ps de percbe i )inte avecnous, xtoes les gens , en brigade. Hi anots ^toienten es. ColisheDu- 5ttc derniere ren- re et La Pointe, s nous disoient , mais je ne i?ie jours qu'ils Pa- itour, qui est un s'il avoit eude mdu qu'il Pavoit -38 avec les Sau* Kong de la route, ]e autre personne it rapport ^ Kev- 1, ou De Rein- avoieut dessein , que nous ren- Cygnes. J'^tois apr^sles bour- avons rencontr^ e la Riviere des avant de Fayt 111 tt La Fointd, qui ^toient contre le gouvernail. En partant de la brigade, nous suivimes vers les Dalles, et c'est la route ordinaire pdur gagner le Lac la Pluie, (•*) tttm f ••) He was asked why he was in that situation, and he told us now it was, but I did not hear his complaint against any one. Mr. Archv was there. Joseph had his hand wounded, and a lump upon his head. I can not say how many days exactly, but per* haps it was two or three days after we had lefi Red River that we met Joseph. Something vna giten him to cover himself with, Imt I do not recollect what it was. After Aat, we found Faye and La Pointe upon an island, about half a lei^ue off. They called to us, and we put ashore. Our people enquired of ("aye and La Pointe why Uiey were there, kad where Josenh was ; they replied that the Indian wanted to kill them, atid that he had run away into the woo(^ When Faye and La Pointe saw the Indian, tb^ laid the blame on each other. The Indian said that Faye and La Pointe had beat him, and that he fled into the woods. Faye said that it was not him but La Pointe who had beat him, and La Pointe laid that it was Faye who h&d beat Joseph. Mr. M cLellan land- ed, and reproached them much for havmg beat the Indian, and wanting to kfll him, and as Faye and La Poiute laughed at that, he gave Faye blows with a canoe-perch. We took Faye and La Pointe with us, and the same day, we met the people who were going to Swan River, in brigade. There were five or six canoes,^ and the canoes were generafiy of the size of five men. Colishe Dttoharme waa their guide. Before meeting these last, we had aiked Faye and La Pointe where they had left Keveny. They uAd us thf,t they had left him upon an island, but I do not re- |neiidt>er thi^ they said bow many days it was since they had left ' Im. Bonhomme Montour, who is a half-breed, asked Ducharme hether he knew any thing of Keveny, and he answered that he ad seen him tiiat day above the Dalles with the Indians. I had leard noting on the way, on the part of McLellan or of any her person in the canoe, nor any words relative to Keveny, which idd indicate that McLellan, or De Reinbard, or any other in canoe, bad any design of killing Keveny, until the time when met the people of Swan River. I was on the first bar imme- tely behind the bourgeois, from the moment that we had met ith Joseph, until the meeting with the Swan River people, and ^rwards I was all the time before Fa^e and La Pointe, who ere next the steersman. On parting nom the brigade, we pur- our wav towards the Dalles, and that is the usual route for >ing to Lake La Pluie. i 112 Mf\ Stuart. — Perhaps, gentlemen of the jury, yo would wish to haVe a map before you* One wa accordingly handed to them. Matin, — Nous avons trouv6 Faye et La Point au matin, et la m^me journee que nous avons ren contr^ les gens de la Riviere des Cygnes. Nou i'avons trouv^ en haut des Dalles avec les Sauvages Pendant tout ce tems, apr^s avoir laissd les gens di la Riviere des Cygnes, je n'ai pas isntendu parle dans le canot, par qui que ce soit, de tuer Keveny ni de Keveny point de tout. Je n'ai rien entendi de Vasseur, ni d'aucun autre, qu'il auroit les bottei de Keveny, ni son chapeau. (^*) Mr, Stuart, — There is now only the intermediate time, namely while they were in company with the brigade, to cover. Ecoutez Matin ! Pendant le tems que vous 6tiez avec la brigade de la Riviere des Cygnes, avez vous entendu aucune parole de Keveny ? Matin, — Non je n*ai pas. Je n'ai entendu au- cune parole de cette sorte. Mr, Stuart, — ^S*il avoit ^td dit, auriez vous Pen- tendu ? ou quelque chose de semblable ? Matin, — Si quelque chose de semblable eut i\i dit, je Paurois certainement entendu. Nous etions quinze dans le canot avec le baggage. Q^) ( 65 3 ) We found Fay& and La Pointe in the morning, and on the «ame oay that we met with the people of Swan River. We fouad him above the Dalles with the Indians. During the whole of this time, after 've had parted from the people of Swan River, I did not hear speak in the canoe, by any one whomsoever, of killing Keveny, lior of Keveny at all. I heard nothing said by Vasseur, nor by any one else, that he would have KevenyV boots, or hit hat. (88) Mr. S. — Listen Matin ! During the time that you were with the Swan River brigade, did you hear any word about killing Keveny ? M. M. — No, I did not. I did not hear any word of the kind. Mr. S — If it had been said, would you have heard it? or any thing similar ? . Tt^.:.ia US lof'the jury, you t you. One was lye etLa Pointe i nous avons ren. ; Cygnes. Nous ivec les Sauvages. laiss^ les gens dfe s ^ntendu parler de tuer Keveny, I'ai rien entendu il auroit les bottes y the intermediate company with the atin I Pendant le edela Riviere des lucune parole de n'ai entendu ati- auriez vous I'cn. 3lable ? semblable eut tit idu. Nousetiom [age.r) Ithe morning, and on the Iwan River. We found kring the whole of A« I of Swan River, I QW 5 whomsoever, of killing ^thingsaidhy Vasseur, kev&^fs ^ootsy orhii le time that you were anv word about kdliiig any word of the kind, have heard it? or any Mr. SiuarL^-^Thert is another question I have omitted. Vasseur ou nageoit-t-il ? eu quelle partie du canot ? avec les bourgeois ? . Matin. — Vasseur nageoit au devant des bourgeois. II ne nageoit pas dans la barre des bourgeois, et je n'ai jamais vq aucun engag^ nagei* dans la barre des bourgeois. Ayant quinze hommes dans le canot de Mons. McLellan, c'etoit impossible d'embar- quer Keveny et son butin. II- y avoit la un petit canot. Oq employa les Sauvages pour le gommer ; nous partimes, et De Reinhard, Mainville, et Jos^, restoient la pour attendre que le petit canot fut pret» etpouramener Keveny' dans ce canot. C*est it Tordinaire qu'on laisse quelque personne qui sache le chemin, comme un guide, et Jose avoit 6t6 laisse comme un guide. Nous autres bois bruits etlons de la Riviere Rouge, ^et ne connoissipns pas cette route. Desmarais connoissoit le chemin, mais il ^toit le guide du canot de Mons. McLellan. Ex- cepts Faye et La Pointe, qui avoient dija ab^ndon- n^ Keveny, il n'y avoit des Canadiens que Rochon dans notre canot ; tous les autres 6toient des bois bruits. Le soleil pouvoit avoir une demie heure, ou une heure, de haut, lorsque nous campames pour la nuit. Au camp les bourgeois avoient une^ tente et les engages un feu. II y avoit un feu cette nuit devant la porte de la tente de Mons. McLellan* Apr^ j'ai vu le petit canot arriver. J'^tois alors sur la gr^ve, M'Lellan n'6toit pas la, mais je ne sais* pas s'il ^toit dans sa tente, ni oi!i il ^toit. De U nous partimes le lendemain sur notre route pour le Lac la Pluie, et nous fAmes trois ou quatre jours d nous y rendre. J'ai toujoui^ continue a nager dans IS-'1 M. M.— >If aqy thing similajr had been said, I should certainly Ihave heard it. There were fifteen of us in the^canoe with thf baggage. , _ 114 Id meme place. Je n'ai aucune connoissance qu McLellan a montr^ un papier k De Reinhard, < lui a dit, ou a dit aux autres, que cVtoit bon qi Keveny avoit^t^ tu^, parcequ'il avoit le pouvo d'avoir des troupes du Roi pour prendre nos terrt sur la Riviere Rouge. McLellan vouloit aller pli loin rencontrer les gens, mais nous ne voulions pa la saison 6toit trop avanc^e. Nous restdmes deu jours au Lae La Plqie, et done Mons. McLflla s'est retoumd avec les autres au Bas de la Riviere, e] cept6 De Reinhard, Faye, et La Pointe, qui restoier au Lac la Pluie. Les armes appartenahs k De Reir hard, savoir, un sabre et une carabine, furent' a[ port^s du Lac la Pluie au Bas de la Riviere dan noire canot. Je n'ai entendu aucun cri de joi quand nous avons rencontrd les gens de la Rivi^r des Cygnes, et qu*ils nous ont dit quails avoient v Keveny. Je connois Mons» Heurter. J'ai vu d 1 Riviere aux Souris, deux jours de marche au de li du Fort Douglas, la valise de De Reinbard. (^'^) ( ^"^ ) Vasseur paddled before the bourgeois. He did not die in the bar of tlie bourgeois, and I never saw an^ ^gage diing in the bar of the bourgeois. Having fifteen men in Mi McLeIlan*s canoe, it was impossible to embark Keveny and hi baggage. There was a small canoe there. The Indians wer employad to gum it. We departed, and De Reinhard, Mainvillc and Joseph remained behind to wait till the small canoe was ready and to convey Keveny in that canoe. It is usual to leave a per son who knows the way, as guide, and Joseph was left there a guide. We half-breeds were from Red River, and were not ac quainted with that route. Desmarais knew the way, but he wai guide to Mr. McLellan's canoe. Save Faye and La Pointe, vh( had already abandoned Keveny, there was no Canadian in oui canoe but Rochon ; ^11 the others were half-breeds. The m might be half an hour, or an hour, from setting, when we en- camped for the night. There was a fire that night before the en< trance of Mr. M'Jbellan's tent. Afterwards I saw the smtdl canoe arrive. I was thm on the beach. Mr. McLellan was not th^e, but I do not know whether he was in his tent, nor where he wtt We set off from there the next day on our way to Lake La Pluie^ nd we were three or four days in getting there. I always coo* jonnoissance que 3e Reinhard, et cVtoit bon que avoit le pouvoir rendre nos terres vouloitaller plus » ne voulions pas, us rest&mes deux Mons. McI^Uan s de la Riviere, ex, ointe, qui restoient rtenans ^ De Rein. rabine, furent' ap. i la Riviere dans lucun cri de joie jensde la Rivte t quails avdient vu irter. J'ai vu 4 la B marche au de la ^ Reinhard. C'') eois. He did not pad- &r saw any eagage pad. mg fifteen men in Mr. ibark Keveny and his 1 Ire. The Indians were be Reinhard, MainvUle, |e small canoe was reiAit is usual to leave a per- Lephwas left there as liver, and were not ac. >w the way, but he wa» tye and La Pointe, who IS no Canadian in oui half-breeds. The 8uii| setting, when we en- aiat night before the en. ids I saw the small canofr [cLellan was nQt there, ;ent, nor where he w» j way to LakeLa Plu^'f there. I always cm- fe 115 Cross examinalion conducted by the Solicitor General. Matin. — On parloit dans ie canol. Je ne puis as dire que j'ai tout entendu ce que s'est dit dans e canot. Pendant tout ce voyage je n'ai jamais entendu le nom-de Keveny dans le canot. J'ai en- tendu une fois un bruit de la mort de Keveny, mai.s ni avant cela, ni apv^s, ai je jamais entendu le mom de Keveny. J'^tois present au terns que De Rein- hard et Mainville Tont pris prisonnier. Keveny entra dans sa tente, et en sortit avec un fusil band^, tt VQuloit ti]:er sur De Reinhard. Je le saisis, et lui 6tois son fusil, que j'ai debandd moi m^ine. II y avoit beaucoup se resistance, mais ils parloient Anglois, et je n'ai pas compris ce qu'ils ont dit. Je n'ai pas entendu des ordres de faire bri^ler le canot. C'^toit Desmarais qui coiiimandoit le canot, et c'est le guide ordinairement qui commande, Je ne puis pas dire pourquoi le canot ^toit brul^, mais il y avoit du sang dessus, et je Tai vu. Vasseur a dit, " il faut que j'aille mettre le feu a ce canot." II n*a pas braid. Si Mons. Archy a parld de la mort de Kev- €vy, je ne I'ai pas entendu. II parroissoit bien en peine de sa mort par sa contenance. Je ne I'ai tinued to paddle in the same place. I I ave no knowledge that McLellan shewed a paper to De lleinhard, and said to. him, or Isaid to the others, that it was well that Keveny had been killed, Ibecause he had the power of getting King's troops to take away loar lands from us at lied River. McLellan wanted to go farther, lin order to meet the people, but we would not ; the season was Itoo far advanced. We remained two days at Lake La Pluie, and JMr. McLellan then returned with the others to Bas de la Riviere, excepting' De Reinhard, Faye, and La Pointe, who remained at Uke La Pluie. The arms belonging to De Reinhard, namelv a Rword, and a carbine, were brought from Lake La Pluie to Bas ie la Riviere in our canoe. I did not hear any cry of joy when ve met the people of Swan River, and that they told us they had «en Keveny. I knew Mr. Heurter. I saw De Reinhard's trunk It Riviere aux Souris, which is two days march beyond Foif *)ougla8. , t , 116 rien entendu dire de sa niort, mais il ne jasoit pas avec De Reinhard, et j*ai bien vu qu'il ne le reojar- doit pas comme auparavant, et il n*avoit pas le nieme air. Je ne suis pas connii par auciin autre nom dans les territoires Sauvages que Michel Matin. (^^) The Court arfjourned for half an hour to alUm the Jury to take refreshment, ■ ' ' . Monday Afternoon. The Jury being called over, and all present. Colonel ALEXANDER FRASER, sworn, and ex- amined by Mr, Van/elson, Col. Fraser.-^l know the prisoner at the bar, and have done so for upwards of twenty years. I knew hirrj when he was a boy. He was always reputed to be a very honest, humane, and worthy man. ( • " ) There was talking in the canoe. I can not say that I heard 'all that was said in the canoe. Daring the time this voyage lasted, I did not hear the name of Keveny mentioned in the canoe. I once heard a rumour of the death of Keveny, but neither before that, nor after it, did I ever hear the name of Keveny mentioned. I was present at the time when De Ueinhard and Mainville took him prisoner. Keveny went into his tent and came out with a cocked gun, and was going to fire at Y>e Reinhard. I seized him, and took his gun away, which I imcoci.ed myself. There was a good deal of resistance, but they spoke English, and I did not un* derstand what they said. I did not hear any orders given to burn the canoe. It was Desmarais who comnr.anded the canoe, an J It is generally the guide who commands. I can not say why the canoe was burnt ; but there was blood upon it, and 1 saw it. Vasseur said, ** I must go an0 set fire to that canoe." It did not burn. If Mr. A rchy spoke of Keveny 's death, 1 did not hear him. He appeared by his countenance to be much cdncerncd on account of his death. I heard nothing said about his death, but he did not converse with De Reinhard, and 1 saw very well that he did net look upon him in the same light as before, and he had not the a^me manner. I am not known in the Indiaa Territoiy by any other name than that of Michel Matin. tie jasoit pas LI nc le re.o:ar- it pas le nieme lutre nom dans [atin. r) lur to allow the all present, sworfif aud ex* on. T at the bar, and years. 1 knew always reputed worthy man. cnn not say that I the time this voyage ^'ntioned in the canoe. ,»y, but neither before f Keveny mentioned. I and Mainville took [id came out with a ihard, I seized him, lyself. There was a fish, and I did not un- lany orders given to iniT.anded tlie canoe, I can not say why ►on it, and 1 saw it. canoe." It did not [ath, 1 did not hear L much c6ncerned on (about his death, but ll saw very well that s before, and he had he Indian Tenitory 117 TlusHrn. WILLIAM BACHELOR COLTMAN, 6Wom, and examined by Mr, Stuart. Mr. Coltman. — I am one of the commissioners for the Indian Territory, appointed, as I understood, by Itis Royal Highness the Prince Regent, and in consequence it became my duty to proceed to the Indian Country. I left this in 1817, on the 5th of May, and arrived at Red River about the 5th or 6tli of July ; about that time, I can not say exactly, as I have no note ot it. Some of the servants of the Hudson's Bay Company thought themselves enti- tled to act as magistrates generally, but I believe they declined actmg whilst I was there, under a kind of protest. There was no magistracy appoint- ed in the Indian Territory by this government, un- der the Statute of 43rd Geo. Ill, Cap 138, except Mr. Fletcher and myself. There were no consta- bles except special ones, no Courts of justice, nor any gaols, recognised by law. I know the prisoner at the bar. I saw him at Fort Douglas, on Red River, two or three days after my arrival. He was in confinement at the time I arrived, and I saw him a day or two after ; it was, I think, on the seconit day after my arrival at Red River. I thought it my duty to see him in his place of confinement, to ascertain that he was not treated with any unneces- sary degree of harshness. I wish to add that I also saw him on the following day, for the purpose of re- ceiving a declaration which he stated he wished to make to me ; that was on the 9th of July. Mr, Stuart, — Have you tliat declaration. Sir ? Mr, Coltman, — No, I have not. I had it till it was fyled with other papers with the Attorney Gen- eral. Mr. Stuart.^^WBS it an examination taken by you as a magistrate ? i^-t^i lEIiJ •4 ■ 1 r,?:-5 f • i-'i Ji TtS M .'^ i; ••4).? 'Ij . 1' ■ v^*li- P :\ fetl m ■■ j>i4 -^ ■M > ■ t ■ "M i ; ,t'v \ ^ 1 ;-fr,i > •■: t <(.. T V" ■"■ ;■%? ■■ \\i ... ,. ■1 ■ 1 ,|| i^r '-'i •■ '.': ' '^ ^fv^ ^..^^■! t -^il' ilfr. Coltnum."^It was not exactly an examination it was a voluntary declaration on the part of Mr M'Lellan. Oiitf Justice Seweli, — Have you got it, Mr. At torney General ? Attorney GeneraL^^Yes, I have got it, but it i( not evidence, and therefore there is no necessity t( produce it. His own decalration can go for nothing Chitf Justice SevoelL'-^Prima facie^ it certainly ii not evidence. It might, however, if read, save 2 great deal of time and trouble, but exercise youi own pleasure. ^ Attorney General.'-^l do not consent to its bein^ read. Mr. Stuart. — ^We certainly shall not press it, h objected to. But we thought it would be the besi evidence that we had demanded of the commissionei now in the box, the fullest investigation of our con- duct, as w^ell as of the information which we had given to him, and of our wish that the persons capa^ ble of giving evidence should be secured. Attorney GeneraL^^My learned friend mistakes, it is no evidence at all, nor can it be made so. It is merely a prisoner's own declaration, which is never admitted to go to the jury. Chief Justice SewelL — M'Lellan might have taken a copy of it, and have read it in his defence, and it would then have been before the jury, which is all that is now wished. Mr, Stuart. — A most important fact we have ob- tained from Mr. Coltman's evidence. That as soon as he arrived at Red River, where Mr. I'Lellan was^ he went to him to receive a declaration which he had expressed a desire to make. This is a case of a'very peculiar nature, and although we are well aware that tliere are technical objections to this pa* ]y an examinatiotit the part of Mr. ii got it, Mr. At- got it, but it 18 is no necessity to ;an go for nothing. n>, it certainly is ; if read, save a )ut exercise your nsent to its being 1 not press it, if i^ould be the best rthe commissioner gation of our con- m which y/e had the persons capa- ecured. friend mistakes, be made so. It ion, which is never might have taken is defence, and it Ury, which is all b fact we have ob* ce. That as soon re Mr. I'Lellan ieclaration which I. This is a case ough we are well actions to this pa- 119 promoted thereby. '' ^^ ^^ "*« case would be ^^tf Justice Seoipli v at . certain given d,?. M, cil" ' ^'^ ««" the pnsoner his declaration «k?^ received from h" confinement: pS„° th^r* *** *^l''"''J«=t ^ »"ve no objection Sat tTI part £!.7" "«<«« will the persons who might be &'"*""* ^ "^curinK ject should be read. *"«'«»«« upon the sub- Mr. Sttsart^We wish A» > .• i •ny part is to be withheld ^^^ ?"?«' '^^ i if none should be read ' ^^ **'"'<' P«fer that attorney General.— Th^n „„ , •ny part of it being read? ''*' """^ ^n^nt to ^^l^^^'ion resumed l>, Mr. Stuart. H'Leilan Skl'St hL^r™*'""" '^''Mr. fore. It was a declmtion wh.Vh ^" ^^'n'ned be. ed to make, and I reS ? ^"^ *^*^ '»« '^"h- -»whet4-;;^3SlittJl'^ rat'on. ItsproductionSd«vr^"^?*"«^«<^la- I «nd there cin be no SlTt*'**™'*'«'»"etime, , Solicitor Ge,u!ral-iiTe . "*"* * technical one. W this decIaraS to be exWhf. !? P'"**^"'=«' «' »^- "«? to say it is not a t^K^- i^^ "« evidence, I objection that we have^»^?^ ^'•* * substantikl. h't legally. b^mXeSS *''?^^'* « "<><' "ot a:,-£i.arstatemenTlJS^^^^ ^fngt?Sti;1„7^ ^^*'- «"«* - dose the-King's ev^enc^ '"'''' ""^^ ^ *« ^'s- 150 MT' StmrL-^l beg my learned friend's pardon but it would not be to disclose the Kins^s evidence it would be merely to shew that M'Lelkn was an^^ ioiis to give every information in his power i:eiativ( to the occurrence, and to have every person s^curei that was likely to give any information on the sub je^t. But I will pr<)ceed with my examination, anc shew these circumst^ces by the Hon* Commission er by whom the declaration, which the Crown re fuses, was received* JEa^canination resumed by Mr. Stuart Mr. Coltman.'^Isa.vr'Mt: M'Lellan, at his own request, on the 9th day of July, at Red River. Mr. StuarL—^Dld he give you the names of the persons who were with him in a canoe at the time the supposeft murder was committed ? Solicitor GeneraL-^We have no wish to exclude testimony which can be received, but does your Honour think that a question which can be put? I do not intend to argue upon it, but it strikes me as being completely inadmissible* Chief Justice SewelL^^^What is asked of Mr. Colt* man is merely the ' account given to him by Mr. M'Lellan in July 1317, £ind to prove that it was accompanied by a wish that the necessary evidences ^ for his trial might be secured. This certainly he zniay obtain from Mr. Coltman in evidence, and it will be for the jury to give it what weight they think proper. ^. ^ ' r ' JEa^amination resumed hy Mr* Stuart Mr, Cloftwwwi.— He stated that there were with him in his canoe at the time the murder of Keveny was supposed to have been committed; one Cuth- bert Grant, one Joseph Cadotte, Jean Bapiiste Des- j marais, Augiistus Rochon, Hubert Faye,* one La ^ ifiked of Ml?. Colt* ta him by Mr. Iprove that it was BC^ssary evidences [This certainly he evidence, and it rhat weight they 1^1 Pointe, Joseph Loirain fils, Michel Matin, one Vas- seur, one Vaudrie, and Vassall. He also stated, that the last time he saw Keveny he was with sev- eral Indians, and in company of three other persons* The three were Charles De Reinhard, who had be- fore executed a warrant granted by Archd. Norman McLeod against him, Mi^inville a bali-breed, and a tJavage named Jos^, Fils de Perdrix Blanche. H9 requested that ^11 these persons might be secured, and sent to Montreal to give evidence on his trial. 1 recollect that I stated that the expense would bp very great, and I objected to it on that account. He said in a case like this, expense ought not to be minded. I did not take it on papei', but I recollect it distinctly ; they were words to that effect which were made use of. Mr, Stuart. — Did you, Sir, take any measures, or were any measures taken, in consequence ? Mr. CoUman. — ^l was embarrassed, and, after con- sideration^ determined that it would be right, as he was indicted, to make known the prisoner's wish to his friends, and I have every reason to believe steps were taken in consequence, indeed I know some were taken by them. It did not appear to me that I iiad any legal authority to incur so heavy an ex- pense, or even to compel them tos come and attentl the trial. By compelhng them to attend, I mean I had no authority to secure their attendance by taking them into custody. I would wish to add, however, that I did, at the expense of government, bring Fils de la Perdrix Blanche to Montreal. He only spoke Indian, and I not speaking it at all, 1 had very little communication with him, but he cer- tainly came down under the impression of appearing as a witness, but whether for the Crown or on the defence, was not explained to him. He was at this time at large, and at a distance, and I conceived Q f r .128 that there was no other way of procuring his att dance, but in this manner as a witness, and I thou it material to have him, in some shape or other, a testimony on this affair. Mr. Stuart — Were measures taken to furnish 1 with religious instruction, so as to qualify him to come a witness ? Mr, Coltman, — Measures were taken to instr his mind on religious topics, particularly as to nature of an oath. I could have wished they 1 begun earlier, and that they had continued fo longer period, but measures were taken. It v ultimately undersoood, at least during a certain tir that the individual was to be received as a Kin evidence, by me at least it was ; indeed I may [ it was so understood. Mr. Sttuirt. — I beg leave to state our object, is to prove that this individual was first received a King's evidence, and was then indicted. I woi ask Mr. Coltman whether he was received as King evidence by the King's lawyers as well as the King commissioners ? Mr. Coltman, — He came down undoubtedly 'the expense of the government, under the impre sion that he was to be a witness, but he did ni know for whom. My own opinion was that I ought to be a witness for the Crown. I commun cated that opinion to the King's Crown officers i the time, to the Advocate General, now Mr. Justic Pike, and to the Attorney General, and I had lei ters from them which certainly led me to conside that he was accepted as a King's evidence. I ac cordingly communicated the circumstance to M' Lellan's friends. When he was brought down t( Montreal, he was placed in charge of an officer ol tlie Indian department, an interpreter of the Crowfli 1«3 procuring his atteii' itiiess, ai^d I thought s shape or other, as taken to furnish him to qualify him to be* •e taken to instruct larticularly as to the ve wished they had ad continued for a ere taken. It was uring a certain time; jceived as a King's ; indeed I may state our object. It ftras first received as 1 indicted. I would IS received as King's as well as the King's wn undoubtedly at] under the impres-l ss, but he did not )imon was that be own. I communi. Crown officers at ral, now Mr. Justice ral, and I had let- led me to consider! 5 evidence. I ac- cumstance to M'- brought down to I re of an officer of )reter of the Crown, f land received instructions from a priest belonging to [the seminary. Mr. Stuart, — I beg to enquire if the Crown offi- Icers will now admit the declaration of M'Lellan to [be read to the jury. Attorney General — We do not see that it ought Itobe. Mr. Stuart, — The situation of the prisoner was, I and still continues to be, a very peculiar one, and in I addressing myself to the Court, I hope not to go I beyond, but I shall strive to reach, the bounds of professional duty, and those to their utmost extent. Fort William was taken possession of, and the pait* ners of the North West Company were taken prison- ers, and held out, not only in this Indian country, but elsewhere, as rebels, and persons guilty of the highest crimes and misdemeanours. A system of proscription was adopted against all who differed with the stronger party. A system of intrigue, which perhaps is ^till carried on, that those who sit in the same room, eat at the same table, drink of the same cup, should be made the instruments of mutual suspicion and jealousy. When every man was apprehensive lest his fellow should become his accuser. Such a system as this was calculated to excite alarm ariy where, but much more in this re- mote and destitute country ; destitute of all those safeguards, which the law and its correct adminis- tration affords to us. Well might this system of proscription excite alarm in a country where the Earl of Selkirk was the only magistrate. I am not beyond the facts, when I say, this only magistrate was the great and only accuser, and that his inten- tion, and perhaps his only intention, was to destroy this commercial company, who were his great rivals. A witness falls into his hands, if he does not answer hh purpose, he is changed from a witnes to a pris- 1^4- oner, and indicted. Look on the other hand Faye, La Pointe, and Heurter, where, prima fact more culpability attaches, they, instead of being i dieted, are made witnesses. Solk'ttor General — I object to my learned fr ient course, because his observations are a series of a cusatioiis not founded on fact. ^ Mr. /fiiTwflr/.— These round assertions of the S licitor General, I beg to say, are not by any mea decorous, nor such as are usual in this Court. ^ Solicitor General-^Then I must say Mr. Stuj is not correct in throwing imputations upon witnesse which are not justified by any thmg that has appea ed in evidence. Chief Justice SewelL'—You know, gentlemen, wit how much pleasure I always hear you upon any sul ject which yoti think proper to address the Com upon, but we can not permit this sort of replicatio to go on. When by any means you get beyond th coohiess of argument, it is our duty to intei*fej e, a well as when you exceed the limits of legal argu metit. I would, Mr. Stuart, ask you to point ou how, by possibility, the coiirse you have adopted is to effect any tiling in favour of your client, and on the other hand* we must remark that the mon eligible mode of arresting any irregularity in argu ment is to apply to the Court. Solicitor GencraL — In stating that my learncf t friend was incorrect in his representations, I liad nc design to say that it was intentionally done on his part, far from it, but that his statements were total ly unsupported by evidence, ^nd that, if investigat- ed, I believed the reverse would be fornd to be 5tli€ case. Chief Jmti^e SewelL — Thank God, our bar is net v.iin that state that we need be fearful of any mioUii' derstanding. Let the cause go on. 125 that my learned [entations*, I liad no jonally done on his Iteraents were total- that, if investigat- [id be found to be Mr. Stiutrt. — I shall state as summarily as I ean, and in a way as little calculated to offend as I am able, the unfortunate situation of this prisoner, and of every other person in that country, whose views and objects were opposed to those of the private prosecutor in this case. First, let it be remembered that in this Unfortunate country there was no estab- Ushed magistracy. That there was only the Earl of Selkirk acting there as a magistrate. The talents of the noble Earl are well known, whilst his elevat- ed rank entitles him to our respect. The differen- ces between the two Companies, to which the noble Earl and the prisoner severally belong, are well known, and, without again enumerating the va- rious acts of aggression which have marked tha con- test, it is sufficient to say that it belonged, from the pecuhar situation of affairs, to the Earl of Selkirk, to the private prosecutor, to say whether an individ- ual was to appear in Court as a witness, or as a prisoner. Take the instance of the Indian Jos^, After the faith of the government was plighted- that he was to be a witness on the part of the Crown, after the communication of this circumstance has been made to the prisoner and his friends/ from the most respectable source, who has testified to the fact, suddenly the Savage is to be indicted, and we are to be deprived of his testimony. I do not in- tend to get out of the abstract question, but let us now, for a moment, turn to the conduct of the prison- He calls upon the Hon. Commissioner as soon er. as he arrives, and requests, (after giving him a full account of all he knows of the transaction,) that all the persons capable of being witnesses* may be sent down. Under this request three persons were even- tually sent dbwn. It was thought so important, that the measure was adopted. The prisoner, thus easy as to the result, kiH)wing that these persons 1^6 lure to be witnesses upon the part of the Crown waits patiently till his prosecutors put him on hi trial, when, suddenly, he finds himself deprived c their testimony, by their being indicted as partici pators in the same offence. 1 intend to go one ste farther. Perdrix Blanche was actually received s an evidence for the Crown by its officers, and, ur der their directions, received instructions of a rel; gious nature^ to qualify him to give evidence, ye when upon subsequent examination his evidence i not found to be of sufficient importance to render worth while to retain him as an evidence for tli Crown, then he is immediately to be indicted, an we are to be deprived of his testimony. Desmarai is just the same case. He is brought down as witness, but before the trial, is included ixi the sam indictment, but in a different degree. The hardshi of the situation in which the defendant, and an other person opposed to the views of certain persons stand, consists in this, that, from the peculiar situ tion of the private prosecutor, whom he will he pu into the indictment, and brings into court as apr sorier, and whom he will he puts into the subpoenj and brings him forward as a witness. By th means, having the two strongest passions of the In man mind, hope and fear, at his command, it is eas to conceive what must be the effect of such an infli ence. Not to mention any names, but what, would ask, distinguish the cases of three of the prii cipal witnesses on the part of the Crown from Grai or Cadotte ? Three are brought to the witness be to testify, whilst the two are to be arraigned an tried at the bar. I can not but advert to the pec liarity of the situation in which the private prosec tor and those of the other Company stand towart each other. I do not accuse the noble Earl of pa tiality, but perhaps it is not going too far to sa; ¥'■ H that, so situated, it would be scarcely possible for any man so entirely to divest himself of personal feeling, as not to be influenced, in somo degree, by it. Looking at the scenes that have been presented to our view, and presumption might lead us to ira- xnagine we discovered, in the events of the Indian Territory, the force of this principle* The vigil- ance of my learned friends could not extend to Eed River, they must necessarily be dependent on the assistance and representations of the magistracy, and looking at what, or rather who, is that magistracy, contemplating the deep interest and heavy stake he has in the events that take place there^ I say the presumptive idea is, though, no doubt, the magis- trate is innocent, yet the presumption will present itself that, surrounded as our natures are by trailty, ^ and exposed as our judgments are to influences often so secret and subtle as almost to defy detection, parsonal feeling may have had some share in the course of procedure that has been adopted. To finish my observations, which have extended them- # selves to a much greater length than I intended, I would remark that I did think, having been depriv- ed of all the witnesses on whom we had a right to calculate, the oflicers of the Crown would not have objected to the declaration of the defendant being read. Jos^, on whom we confidently relied as a witness on the part of the Crown, is indicted; Desmarais is inc&cted ; Grant and Cadotteare in- dicted ; and thus, deprived of our primary, we ai'e compelled to resort to secondary, testimony. Chief Justice SewelL — You have got one point relative to Jose established, namely, that he was sent to receive instruction as to the nature of an oath, and that,-' up to that time, he was intended to be used as a witness. You therefore only require to prove the second, namely that he was indicted. 'I UB Attorney General*^^lt is a little singular, I th to attempt to prove by the coramissioner what done in his absence. As to this history of cal witnesses, I do not know to what my learned fri refers. He appears to speak as if witnesses had b taken on, and then hunted olf, to all insinuation that kind I am completely indifferent. The c< missioner' undoubtedly acted with great caution, the Crown never pledged itself to make Jos witness. Chief Justice SewelL — There was a little unne< sary heat on this occasion which I was sorry to serve, because, I am happy to say, it is what we strangers to. Mr. Stuart's position was this : persons whom we intended, and also those wh we had reason to believe the Crown proposed, produce as witnesses, have been indicted, and are thereby deprived of our primary, and theref ought to be allowed to introduce secondary, te niony. The Crown officers may be assured that feel it my duty, my bounden duty, to protect th( if attacked, and it is my pleasure to do so whene\ they are ; but the object of the defence was men to shew why they could not produce, what is calle the best evidence. Here are five persons, say th( indicted for being present at the supposed murdi Perhaps I am not right in my conjecture, but t jury might insist upon their being indicted, a the sand reasons might be assigned without attachii ^ blame to the Crown officers. The only necessai question is this ; was Perdrix Blanche indicted i terwards? Examination resumed by Mr. Stuart* Mr. Coltman. — Perdrix Blanche was, as I believi subsequently indicted. I saw Desmarais at Lac I [he was, as I believe, )esmarais at Lac la ^129 • vie Piuie, in going to Red Rivei^ about the 2Uh of June. When I first saw him I understood hd Vas guide to a canoe of goods belonging to the £arl of Selkirk. He was produced to me as a witness* and « ' I think, as positively as I can remember, speaking only from memory, that he was brought to me by an agent of Lord Selkirk's ^ one Michel McDonel^ and this same Desmarais has no dc^ibt been since indicted for the same ofience. I took no step my« self to bring down Rochon. I represented the pri- soner's wishes to have every body brought down, but Rochon was not brought down*. Cross examination conducted by the Attorney General. Mr, Coltman, — I do not know why Rochon was not brought down, I heard many reasons assigned, but I am not sufficiently acquainted with their truth to assert they were correct. I believe that at this time he is in the Indian Territory, within the pro- cess of this Court. At the time it was thought ex.* ipedient to take Fils de la Perdrix Blanche as a Crown witness, it was not known what Perdrix P Blanche cbuld prove. Indeed it could not be known, as he was unacquainted with the nature of an oath till he was instructed therein. I did not I feel myself warranted in promising him that he was * to be a witness, without the sanction of the Crown {oSlcers. At that time he was with the witness for ||^ the defence. I afterwards received a letter from I the Attorney General wishing to have him, aslsup** pQsedi for a King's evidence. I accordingly ap- plied to the gentlemen of the North \yest Cpmpa- t |ny, and they produced him. I applied to them sp I that he might be instructed in the nature of an oath, as he came down to be a witness either on the part of the crown or for the defence. I had never ia words, but I think I had by actions, expressed R i ?♦ *..)il # '^ » 3rou that he ought t^^e retnrned to the North W< CompAny, from whom I had received him under idea that he was to be a witness. He was indict afterwards, but I understood that, by order of t 'Attorney General, notice had been previously giv to him, that he could not be received us a witnc for the Crown. Mr. 5lMart4ii*This is our defence. Attorney General — As Des Loges* charactei^ li been somewhat attacked b^ Ducharme^s and oth testimony, I wish to examine pne or two witness in support of it LOiTiS NOLIN, swarn^ and ewamned hy ike a torney Generai, , Nolm^r^e connois Augustin Poirier dit D Leges depuis trois ans. II s'est assez bien compo t6. Je ne puis pas dire qu'il parle toujours la ver te, Je pe le connois pas assez bien pour dire s' est <:royab]e| et digne de confiance^ mais le ne Vi •jamais attrapp^ dans un n^ensonge. (^) ]i£L£)S McDONELL, Esqji^rpt sworn and €xan ine4 by ifie Attorney Genial ^ '^^Mr, McDoneiL-^l know Augustin P^s Leges Poirier dit Des Loges. He. went with me to Hud son's Bay from jack I^iver and bapk again to Re( Kiver. I do not know his general chahicter in thi Indian Teiritoiy. I do not know enough of hio to speak to it, but I know nothing against him This^ voyage was four y^ars ago, it took nine weeks and since tl^at time he has been with me about t«( (••) Ikaaw Augustin Poirier dit Des Lbges since tjira jevs. He conduct^ himself prettv weU. I can not say thst In always speiihs che truth. I do not know enough of him to m Hrhawer ne is worthy of belirf, or that confidence can be pM III him* bat I never caoght him in a lie. to the North West ived htm under an He was indicted , by order of the ►n previously given lived V^ * witness nee. ^es* charactei^ has [larihe^s iind other 5 or two witnesses n Poirier dit Des assez bien compor* rle toujours la veri- bien pour dire s'il ic^, Hiais ^ ne Tai get &) », swam an4 ejiam- Justin r^s Logesj it with me to Hud. lapk again to Red al chalracter in tlie jw enough of him thing against him. it took nine weeks, \mth me about t*p i ^ei Lbgei tince t^nee . I can notMy thathe enough of bim to ^ idence can be *" ISl A % ^ m months at Red River. That was the last year. I can not say that ever I heard his character from the North West Company, I know no reason for not be- lieving him upon his oath«- Cross examination conducted by Mr, Stuart. Mr. McDonelL — I have no further knowledge of him than what I state. He was a Soatman, and of course, fronfk our different stations in life, no famili- arity existed between us. I never heard any thing to lead me to think him unworthy of credit upon his oath. Attorney General'^Thk poor man is at a great distance from where he is known, and no persons are here who can speak, particularly to his character. We have finished. ^t-€^.4-AW9>"y*-*' CHARGE TO THE JURY, # BY THE CHIEF JUSTICE. GENTLEMEN OF THE JURY I WE have, at length, arrived at that point of this important enquiry, when the whole matter is about to be submitted to ^our solemn and ultimate decision, and in handing it over to that decision, it is the duty of the Court to endeavour to eclaircise those parts of the subject which may appear to them to require it, but in so doing it is not their inten- tion, because it is not their right, any more than their duty, to suggest any opinion on the facts of the case ^ that, gentlemen, is exclusively your part^ # J 312 and being so« the Court ^o not think it right to say any thing to you in their charge which could l)e considered as indicating an opinion on the facts of ' I the case. The only and sole object of tlie Court in addressing you will be to place the subject, with re- ference to the crovv^ and the prisoner, in all its beiirings before you, exhibiting those particular points of the ca^ which appear to militate against him, and equally so those which, as they militate •igainst the crown, must consequently niake for the prisoner, and thus assist you to form, but not to guide, your judgment. Bnt, gentlemen, with re- spect to the law that may arise on any of these points, as the facts are exclusively your's, so the law is ex- clusively our's ; and as we are bound to give defer- cnce to your judgment on them, so the constitutioti ordains that we are entitled to similar consideration * from you as to points of law, and, gentlemen, it i> this happy union of the respective duties assigned to each that renders the system of jurisprudence which we are this moment administering the first in l^the world. — The accusation against the prisoner is contained in the last count of an indictment con- sisting of eight, but as far as ^he present defendant is concerned, it is the eighth alone by which he is to be affected, for if he is by your verdict to be con- victed, it must be on the eighth, for, as the facts %k have appeared on the part of the Crown, it is only to ^ that count that they apply. Tliis count charges a man, named Mainville, with having killed Owen Kevenj', with a gun loaded with powder and ball, thereby constituting him the principal in the first degree. De Reinhard is charged as a principal, in the second degree, in being present at the time, that is to say, that though he did not kill him, yet he is as guilty as him whose hand actually perpetrat- ' ed the crime, because he was there. It is there- IT' 133 fore of no consequence to enquire whether it was by Muinvillo's hand, or not, that the man was kill- ed, because De Reinhard has been convicted, and the record of his conviction has been produced and made a piece of evidence against the prisoner M'Lel- lan. liic charge Jgainst him and others, .but with whom, however, you have nothing to do, is that he was an accessary before and after the fact. The principles upon which these distinctions of degree ill the same crime proceed will appear, if I state a case, to be briefly and distinctly this, and I think you will immediately perceive its force. Three per- son^, determined among themselves that they will comniit a murder, the whole three having thus pre- concerted the commission of the crime, two of them go to carry it into effect, and one, by accident or design, remains behind ; of the two that thus go, one only actually perpetrates the crime ; he, gen- tlemen, becomes the principal in the first degree, by having with his own hand committed the mur- der. The one who accompanied the murderer, as he was with him, aiding and assisting, or was ready to do so, if necessary, forms a criminal in the second degree ; whilst the third, who has joined in precon- certing the murder, but afterwards stays behind, or by some accident was not present, or did not go, he is the person guilty of the crime in being an ac- cessary before the fact. I think, gentlemen, after this exposition, the principle must be so apparent, that you can h^ve no difficulty whatever in its appli- cation. Having thus exhibited the principle, for a moment apply it to this case. I mean, gentlemen, only hypothetically. Mainville actually did it, he killed the man, and De Reinhard was present at the time. Previously, in company with Mainville and De Reinhard, the prisoner M'Lellan had advis- ed, counselled, commanded, or even consented to 4\ . ISi t*^ iw. the murder. The ^application is obvious, Mainvi is the principal in the first degree, De Reinhard the second, and M'Lellan would be the accessa before the fact. But, gentlemen, let me beg y not to mistake, and imagine by what is; meant mei 1y as an hypothetical elucidation of the case I h just before put, I charge the prisoner of partaki in the least, or smallest degree, in the justness the application, for I should be most unwarrantat intrenching on your province, I am only endeavoi ing to explain to you, in the clearest manner pos ble, the principle as laid down in the books, and which I shall presently have occasion to refer you authorities, that, in exercising your peculiar rig of deciding on the guilt or innocence of the acci ed, you may satisfactorily comprehend the law up which the application to the prisoner is to be mac Now, gentlemen, we will examine what is necesi ry to constitute the crime of being an accessary i ter the fact, for not only is that man guilty who i vises, counsels, commands, or even consents, t< murder, though he does not commit, nor assist, i even be present, at it, but also lie that aflerwa comes to a knowledge that a murder has been co inittcd, and who, with that knowledge, not o neglects to declare it to a magistrate, but goes tlier, and aids the murderer to escape the justice the \ iolated law, he is, gentlemen, also an acces rv, but as the former was in law considered an cessarv before, so the latter is considered an ace sary after, the fact, it is not a mere omission perform a duty, it is not a negligence to give in mation to a magistrate, so that the hue and cry be raised after the murderer, that will suppor charge of accessary after the fact, for such cond though reprehensible in the highest degree, amoi €>nlv to misprision of felony, an offence most bvious, Mainville De Reinhard in be the accessary , let me beg you [lat is meant mere- of the case I had loner of partaking in the justness of lost unwarrantably am only endeavour, arest manner possi- 1 the books, and to ision to refer you as your peculiar right cence of the accus- •ehend the law upon soner is to be made, ine what is necessa- jing an accessary af- man guilty who ad- even consents, to a mmit, nor assist, nor ) he that aflerwards urder has been com- nowledge, not only' isti^te, but goes tar- escape the justice ot en, also an accessa- / considered an ac considered an acces- a mere omission to ligence to give infor- the hue and cry can tliat will support a ,ct, for such conduct, hest degree, amounts iin offence most un' 195 4oubtedly of a very high diMcription, but not the aggravated one charged in .this indictment. He who is guilty of merely concealing a felony is guilty of 9 misdemeanor, which is punishable by fine and inqipFisonment, ^nd the offence is a fnispri^on of fe- lony, but if this is carried any farther than a culpa- ble remissness of duty, then t^e offisnder becomes an accessary after the fact ; that this is a correct exposi- tion of the law, gentlenien, { shall produce to you some of the best authors, and you will in a moment see that I have stated it correctly^ A very learned and able criminal jurist, Mr. Justice Forster, says, page 1^. in considering the statutes upon which the doctrine of accessary before ^nd after the fact are founded. ** The statutes are the 4th and 5th Philip <«attd Mary, and the 3d and 4th of William and f« Mary.'* The words of the former which are de». scriptive of the oiience are, ' If any person sjiall ma.* ^licioasly counsel, hire, or command ;^ the latter ^•retaineth the words counsel, hire, or command, « and addeth others, ' shall comfort, aid, abet, and M assist;' from these words, which, it naust be ad- f* mitted," (he proceeds,) •* are descriptiVjB of the of <* fence, the prisoner's counsel," (that is in the case then beforehim,) 'f concluded that, without a personal ** immediate communipation q£ counsels, intentions^ f* and viewsfromthesupposedaccessariestothe princi* •? pals, there can be no accessary before the fact. f*But the judges are of opinion that whosoever procur- f* eth a felj^ny to be committed, though it be by the ^f intervention of a third person, is an accessaiy be- •f fore the feet, and within these statutes. For" (he adds) ** what is there is the notion of commanding, " hiring, coqsealling, aiding, or abetting, which may " not be effected by the intervention of a third per- ^' $on, without any direct or immediate connection " between the first mover and the actor." He then \n m 136 i-m'i t^^-i >:t m^i ■Hi-"i.i i^a ym \ k Cites, several authorities, and refers to a variety ot cases, and among others to Dalton, C. 161. S. 6. vrhere the doctrine is more briefly setforth^and alae to various proceedings against accessaries b^ore the fact, all chaiging them as ** procurers of the felony/' The conclusion, however, at which. Mr. Justice iForster arrives, is this, ** It is,'* he says, " a princi- ** pie ia law which can never be controverted, that *' he who procureth a folony to be done is a felon,'' and he concludes by mentioning the difference be- tween a principal and an accessary. ** If present, " (that is at the perpetration of the oiifence) he is a *' principal, if absent, an accessary before the fact." Now, genUemen, let us for one moment refer to the testimony which has been given upon this trial, and see how far the prisoner at the bar, agreeably to this definition of an accessary before the fact, is guilty or innocent. Upon examining the evidence, if it ap. pears to you in the same light that it does to the Court, we think you will find no testimony that goes the length of making him an accessary except before the fact acf^rding to law. If you believe in the exists ence of a conspiracy to take away the life of this man Keveny, but still apprehend that the utmost length the witnesses have gone, is to prove 2 tacit consent on the part of the prisoner, or perhaps a •very culpable negligence in not preventing it taking place; then, gentlemen, it is my bounden duty to tell you, that though such conduct amounts to an o^nce^ and is punishable as such, yet it does not tnake the prisoner an accessary before the fact. It is necessary to constitute the prisoner in the eye of ,the law an accessary before the fact, that it be prov- ed that he, not meidy did not prevent, as perhaps he might have done, (1 am now leaking merely hypotheically) the murder being committed, but that he actually consented to its perpetration. It 137 to a variety ot e. 161. S, 5. Btforth>andals0 varies before the softhefeloBy.*' iclt Mr. Justice Bays, •• a princi- ntrovertcd, that done is a felon/* e difference be- y. "If present, B oflfence) he is a before the fact." ►ment refer to the ion this trial, and , agreeably to this le fact, is guilty or vidence, if it ap. t it does to the istimony that goes ary except before 5lieve in the exists le life of this man hat the utmost to prove z- tacit ler, or perhaps a ^venting it taking bounden doty to amounts to an yet it does not Jbre the fact. It [ner in the eye of !t, tiiW it be prov- vent, as perhaps speaking merely committed, but perpetration. It will nevertheless be foryot^, gentleni^i to determine whether the evidence before you proves that he gave his consent, that he acquiesced in the muHrder being committed. It will be for ^ou to say whether it has been a tacit acquiescence to its perpetration, manifested by a culpable negligence in not prevent* ing, but without having excited it, or even given his heart's consent to its commission, or whether the crime was, instead of being a mere neglect to do a diity, proceeded in, on the contrary, from a wish for his death. Whether his silence resulted from malice, for then gentlemen, I am bound to tell you that, if yoii adopt that opinion, it is not merely an omission of duty, not merely a negligence, of which the prisoner Will be guilty, butj if from malice, if^ from a secret wish in his heart for the death of this man, he has abstained from preventing the murder, then, gentlemen, it is, I repeat, not merely a negli- gence in not preventing the murder, but it is a criminal abstaining, the result of malice afore- thought, and the law, judging of offences by the quo animo wherewith they are committed, declares such a consenting to be an actual participation iit themurder, and that the ofiender is as guilty, (though not presetit at the commissioirof the crime,) as the felon who actually takes the life. It amounts to that crime which Mr. justice Forster, in comment- ing on the act, or rather the case then before him, says. " It would be a reproach to the justice of the kingdom to suppose that he is not an accessary.'' My Lord Hale, than whom no more respectable authority can 1)e mentioned, maintains the same position, page 615 of his learned work he says, '* Misprisroii of felony, is the concealing of a felony, *< which a man knows to have been committed, but " never consented tOtfor if he consented^ lie is either " principal or accessary J* Again, he says at the s^imt S ii 4;^ !■■ - f 158 place ; ** An accessary before^ is h^ Uiat, being a| ** sent at the time of the felony l^eing cQtnmittel *tention ) give information guilty of conceal- t is the wicked de- stitutes the crime. ' the lawy he must [murder. But,gen- ly to escape^ he has mch the law pun- The olTence which, guilty of) is ^ms- en, ^, on the other bis re the fact? Before dismissing the consideration of how far it has or has not been proved that he was an accessary after the fact, J will again take the liberty of drawing your attention to the authority of Hawkins, that you may clearly appreciate the di- stinction which the law makes between a negligent concealfuent of a felony, and the crimie of being ac- cessary after the fact. In discussing the question " wliat (kind of receipt of a felon will make the re- ceiver an accessary after the fact,'* he says, "it seems agreed that, generally, any assistance what- soever given to one know:? lii be afeloii^ in order to hinder his being apprehended, or tried, or sufferr '^ ing the punishment to which he is condemned, is a ^* suSicient receipt for this purpose." jSp ftr gentlet a « <( <( 141 men, you perceive this writer goes all Jours with what I have been addressing to you, as the princi- ples of law by which your judgments are to be guid- ed in arriving at a decision, on this branch of the accusation. Hawkins goes on to elucidate this po- sition, ^* as where one assists him with a horse U} • « rideawaywith, or with money or victuals to support " him in his escape ; or where one harbours or corir ** ceals in his house a felon under pursuit, by reason ** whereof the pursuers cannot find him, and much ** more when one harbours in his house and openly " protects such a felon, by reason whereof the pursu- " ers dare not take him." It is also laid down by a variety of authorities, ** that all who, feloniously and " with an evil mind, receive a felon are accessaries to "the felony." Sir Edward Coke, in his f* second ir.- ** stitute," describes such tobe accessaries, *< who, " knowing of a felony, receive the felon, and not " only cpnceal his oftence, but favour and aid him "that he be not known." In hi^ •« third institute,'' he saith, "if one receive a thief, and aid and M maintain hiip in his felony, he is an accessary.'' By which expressions it seems to be implied that there ought to be some other circumstance besides that of the bare suffering of a person known to be a fe;lon to be in one^s house, to make a man an ac- cessary. In the present case, periiaps, it can rot be disputed that a knowledge of the felony has been brought home to the prisoner, but the question will arise, is it thtt knowledge which amoimts to more than a concealment. You probably will be of opinion with the Court that nothing Jjeyond that has been proved* It may amount to a most culpable negli. gence, but is not, according to our idea, that aiding to escape which is necessary, according to the au- thorities which I have read to you, to constitute an individual^n accessary afler the f^ct. If, gentlemen. :■ -''1 H2 I have formerly pointed out what I conceive t make against the prisoner, so I am now bound t< tell you what we think makes for him. But let m agaiil remind you that it is not what we say that i to regulate your opinion. You are not, gentlemen to adopt the opinion of the Court, and to make i yours, because it comes from the bench. You ari not to make up your opinion by my doctrine. You verdict, gentlemen, is to be most emphatically you own verdict, and in forming it, you are to take th( opinion of no man upon earth but your own. Yoi are that country upon which the prisoner has pu himself for his triaL Jt is you who have sworn dulj to try him, and make a just deliverance bettveei our Sovereign Lord the King and himself, and t( do that you must fully and impartially deliver youi jDwn opinion, unfettered and uninfluenced by the sentiments of any man, I shall now briefly advert to the first point that presents itself in the present case, that is the point of jurisdiction. The indict ment now luider trial is founded upon the act of the 43d of the King, which extends the jurisdiction e the Courts of justice of the Provinces of Lower anc Upper Canada to the trial and punishment of per sons guilty of crimes and offences within certair parts of North America adjoining to the said Prov inces. In the recent trial we had an opportunit} largely to consider the boundaries of Upper-Canada as settled by the statute of 1791. We were calle( jippn then to declare or decide, what was the western boundary of that province, and, as in dutj bound, according to the light we possessed upoi the subject, we charged the jury that the westeri boundary of the province of Upper Canada was, *♦ a line drawn from the head of Lake Tomiscannin^ <* due north, till it strikes the boundary line of Hud "soil's Bay," but also including ** all the territory to 14S ^WWr , I conceive to now bound to im. But let ine at we say that is not, gentlemen, and to make it bench. You are doctrine. Your mphatically your >u are to take the your own. You prisoner has put have sworn duly iverancc betjveen 1 himself, and to Lially deliver your influenced by the low briefly advert «lf in the present •ion. The indict^ jpon the act of the he jurisdiction »f nces of Lower and unishment of per- >es within certain ; to the said Prov- !d an opportunity of Upper-Canada, We were called e, what was the 3, and, as in duty e possessed upon that the western )p€r Canada was, ,ake Tomiscanning idary line of Hud- all the territory to ** the westward and southward of such line, to the ut- <* most extent of the Country commonly called or ** known by the name of Canada ;" and we are also clearly of opinion that, in so charging the jury, we only gave them as the western jonndary of Up- per Canada that which formed part of the western boundary of the ancient province of Quebec. In this opinion the Court are unanimous, for I have consulted my learned brothers who sat with me in the late trials. We also concur in declaring that the western boundary of Canada is a line drawn astronomically, '* North, from the junction « of the Ohio and Mississippi rivers, till it strikes « the southern boundary of the Hudson's £ay "territory," and we consider the point of de- parture to be in 88<^ 58' of western longitude. As we^ gentlemen, are bound to take from you all decisions upon questions of fact, so you are bound to receive from m decisions upon questions of law. Having given you our decision as to the limits of 1: Upper Canada, and the line of separation between the United States and the two Provinces, it remains only for you to settle one point ; are, or are not, the Dalles within those limits ? That is a question completely with i/ou» It is a matter of fact, and is exclusively t/our province to decide. I shall now call your attention to the evidence that has been produced, as it relates to locality, because by that will, indeed I might say, must^ your judgement be guided, in deciding whether the Dalles are, or are not, without the lines which separate the United States and the Province of Upper Canada from the Indian Territories. Upon this subject, we have^ first, the evidence of Mr. Coltman, who knows and lias visited the spot. He tells us that " during the ** last year he passed through the Lake of the Woods ** into the river Winnipic, that the course of that riv- ** er is northerly, inclining a little west, and lliat he ^^^yr 144 ill «« <( •• eoueeives the Dalles to.be from twelve to, perhaps^ twenty miles from the beginning of the river at tne " Lake of the Woods, and Mr. Coltman also states that he always considered and understood Portase ' des Rats to be the north westernmost point of the Lake of the Woods," and on this part of the ques- tion he concludes his evidence by saying, ** a due " west line from Portage des Rats would leave, as *' he thinks, the whole of the River Winnipic to *' Uie north of it." Mr. Bouchette's testimony cor* roborates that of Mr. Coltman as to the locality of the Dalles, which are therefore stated to be situated from twelve to fifleen leagues (miles) farther north than Uie boundary line described. We therefore think it right to tell you, (as we told the jury in the late case,) that^ if in examining the fact, you find that the Dalles are to the north of a line drawn due west from the most north western point of the Lake of the Woods, then you are bound to say that it is not in the United States of America, for whether such a line would reach the Mississippi or . not is of no consequence to this 'trial, as a line drawn to that river would have just the same effect. It re- mains only to enquire ; is it within the province of Upper Canada ? As I abstain from reading more evidence than I consider necessary to shew, and I presume satisfy you on, the point to which I am di- recting your attention, upon this branch of the question, involving our jurisdiction, I shall read you the testimony of Mr. Bouchette, which is exceed- ingly clear as to the locality of the Dalles in refer- ence to Upper Canada. Mr. Bouchette says, " from ^< different authors and maps I am acquainted with «« the latitude of Portage des Rats. It is in 49° " 39' north latitude, and 94*' 5' western longitude, *' calculating from the meridian of Greenwich." He says furtlier " th%t the western boundary of Ca. ve to, perhap, ;he river at tbe lan also states rstood Portage 3St point of tBe rtof the ques- laying, "a due vould leave, as ;r Winnipic to i testimony cor^ , the locality of d to he situated i) farther north We therefore old the jury ill g the fact, you h of a line drawn itn point of the tound to say that srica, for whether ippi or . not is of ne drawn to that effect. It re- i the province of n reading more to shew, and I which I am di- i branch of the 1 shall read you which is exceed- Dalies in refer- lette says, " from acquainted with Its. It is in 49° [estern longitude, of Greenwich." boundar); of Ca- U "nadais a line drawn astro omical north from "the junction of the Ohioaih. Missis^ )pi R ersto *• the Hudson's Bay Territory, and that s»u j, line •• would leave the Lake of the Woods, and t e rivet "Winnipic, entirely to the west, about six .eagues " to the west." You have now, gentlemen, before you the whole of the evidence on the subject of the jurisdiction, and there can be no manner of doubt, if you credit the testunony, that the Dalles are to the north and west of these lines which we have, as the expositors of the law, felt ourselves bound to tell yoQ» constitute the boundaries of Upper and Lower Canada in relation to each other and to the United States of America. This question will be submitted to the decision of his Majesty in CouncD^ as it is onl^ by his Majesty, with the assis&nce of his Councd, that the boundaries or limits of fiis ter- ritories can be legitimately and permanently defined* Tlie question, however, having been incidentally brought before us, we have been compelled to de-* clare the limits of Upper Canada. As judges of the law, we have done that which we could not avoids and as the same authority which appoints you the sole judges on matters of fact, constitutes us equally 80 on points of law, we are bound to tell you that our decision upon the law of the case must be your guide, for, if on the one hand, we are bound to re* ceive your decisions on matters of positive evidence^ so on the other, you are equally obligated to adopt our decisions on points of law as your only guide. If, ulthnately, our judgment, or rather decision, should be set aside, by the competent authority, any inconveniencre w^ich may result from our erroneous direction will assuredly be obviated, but at present U'e feel it our duty thus to define the boundary lines, and, comparing ou^^ecision with the evi- dence which T have recap inSSated, it is, I think, ap« ^ T k 146 parent that the spot, •• en haut dcs Dalles/* is from eighteen to twenty miles beyond the American line» and from four to five leagues witliout the boundary of the Province of Upper Canada. Relative to the I^wer Province it is unnecessary to say any thing. The locality, involving in it the question of joriadic- tion, being thus disposed of, we shall now proceed to the consideration of the case itself; and the Court recj^uests your most particular attention to that part of It which relates to the charge against the prisoner of being an accessary before the fact. The course I propose to pursue is precisely that which was tak- en in the last case. I shall first read to you the whole of the evidence without any comment what- soever, so that you may have, clearly and distinctly, the whole of it before you, and after having so done, I shall endeavour to point out certain parts which, in the judgment of the Court, make against the pris- oner, and also certain parts which make for the pris- oner, and then, without further observation, shall l^ave the whole case to your ultimate dedaion. The Chief Justice read his notes of evidence^ donm to Hubert Fay^s^ (Page 27.) **Jeneconnoispassi **c*etoH Mons. Ducfianne mats quelqi^un a demands M des gens des canots, ^c" Upon this part of the evidence, gentlemen, I just remark that this witness differs very materially from another, who was pro- duced on the part of the Crown at a later period* and, whose testimony, if believed* goe&veiy strongly against the prisoner. I aUude to Des Loges' evi- dence, (Fage Gj.j He represents that it was the prisoner who made these enquiries, while Faye, from the whole tenor of his testimony on this part of the case, as fully establishes that it was some other per- son, though he can not say who, because he repeat- edly says that Mr. Archy, (as he caUsthe prisoner,) 'was there with them, biit that he does not know whether he heard what passed* which clearly man I. fested that, according to his statement, it was not M'Lellan who put the questions. I just notice this difference, as it occurred to my mind at the mo- ment, repeating, at the same time, what I have be- fore endeavoured to impress upon your minds, that it is merely our duty to point out to you whatever suggests itself to us as important in the evidence, but that it is with you, and with you only, that the decision between ttie credibility of opposing testimo- ny rests. The Chitf Justice resumed^ and continued the reading of the evidence to (Page 36.) " Avantde **partir j'ai entendu Mons, Archy dire de rncttre le **petit canot en feut ^c" The statement of the witness, on this part of the subject, differs considerablv from that of his fellow voyageur La Pointe. This wit- ness, Faye, says, when speaking of tiie prisoner having ordered the canoe to be burned, and in an- swer to an enquiry which was made as to the reason, « U y avoit beaucoup de sang dans le canot, mais ie ** ne sais pas pour quoi, et il (M'Lellan) n'a pas dit, **pour quoi il falloit le bruler." La Pointers testi- mony (page 47) confirms Faye as to the prisoner or- dering the canoe to be burnt, but he goes on to say that at the time he assigned a reason for the order, and you will remember that La Pointe testified that Faye was present ; his testimony is, " le prisonnier ** a dit en ma presence, * faites bruler le canot,' et *< Faye y ^toit avec les autres dans Ic campement, * qui 6toit de trente pieds carr^s. II ^toit aussi " pr^s que moi, et le prisonnier parloit aussi haut " que je parle. II a dit de bruler le canot, parceque '* cela pourroit donner quelque connoissance aux sau" <* vages^ ou a quelque autre Canadien qui pourroit ** passer par Id^ du meurtre" Michel Martin, a wit- ness examined on the part of the prisoner, gives a flifTerent account altogether to that of either of thf % 'm ■4 tin- 1 ■ ' jX . ' 1 1, i 'dH «i; ' before said, it is merely to assist you, not to dictate to you, by any means, not in the smallest degree. The verdict is to be yours, as I am confident it will, (as it ought,) be a perfectly free and unbiassed ver- dict, perfectly uninfluenced by any thing that has or may fall from the Court, otherwise than, as I have before explained, it is entitled to require your adop- tion of its decision. The entire case, gentlemen, as it now presents itself to you, resolves itself into a question of dredibility, and the guilt or innocence of the prisoner depends, as far as relates \o the testi- mony which has been produced, upon the degree of credit you attach to three witnesses produced on the part of the Crown, viz. Faye, La Pointe and Des Loges. If, gentlemen, you believe them, that be- lief must, indisputably, lead to the conviction of the prisoner. The circumstances they sweai to are, tliat the prisoner had the entire command of the party, that he was a partner of the North West Company, and the others being clerks and servants were consequently under his controul. This ap- pears to be true, for it is not contradicted by any evidence on the part of the prisoner. They speak also of the conversation in the canoe, shewing from it a manifest predetermination to take the life of Keveny ; this circumstance, but with some variatibn, is sworn to by all ; they agree, however, in the main fact that a conversation relative to the killing of this man did take place in the hearing of the prisoner, and also that he participated in it to a ceitain extent. The circumstance of his receiving the sugar and ap-« propriating it to his own use ; his receiving the pa- pers, examining them, keeping such as he thought advisable to keep, and burning the rest, or otherwise * i % 150 fm 'U, m r^ ^m making away i^^ith them, the burning of the litt canoe by his 6wn orders, and, as sworn to by one the witnesses, for the avowed purpose of preventii it being seen by the Indians or Canadians who mig come that way, for La Pointe distinctly swore ths at the time of giving orders to burn the canoe, ] assigned as a reason, « que cela pourroit donn " quelque connoissance aux Sauvages ou a quelqi " autre Canadien qui pourroit passer par Id, c " meurtre ;" du meurtre were the words the prison ' used, according to the testimony of this witness, bi you ought also to recollect that the other, Faye, say equally positively, that the prisoner simply orderc it to be burned, but gave no reason whatever for s doing, and you should also remember that bet Faye and La Pointe agreed that they were hot present at the time when the order was givei This is a difference in the evidence on the part ( the Crown, which we have done our duty when w have recommended to your notice, it is you, and yo only, who are to decide on the credit due to th one or the other. The injunctions of the prisone not to speak uf the afiair, is related by the witnesse with little variation, and, if credited, forms a stron| circumstance against him. His expressions upoi reading part of Keveny's papers in the canoe, " iha *' it was well he was dead, as he had the power o ** getting troops to take their lands" (i. e. of th( haif-breeds,) " at Red River** ('Page 51 J His re ception of De Reinhard when he came withoul Keveny, his eating, sleeping, and journeying, witli him, and manifesting, according to these witnesses, a general disposition to be friendly to him as before ; all Ihese, gentlemen, are strong circumstances against the prisoner at the bar : so much so that, ii you credit the witnesses, it is the duty of this Court to say, that the Crown officers have made out their 151 case against the prisoner, and, notwithstanding these differences upon particular facts, you wiU feel oblig- ed to render a verdict of guilty. But, to do that, you must believe the witnesses on the part of the prosecution, and discredit those in favour of the prisoner. To their evidence it is now my duty to request an equal share of your attention, as it goes to contradict in almost every particular, certainly in the most essential ones, the evidence of the principal witnesses for the Crown. And first, relative to Des LogeSy whose testimony is so. strong against the prisoner, he stated, if you recollect, gentlemen, that in 1816 he was in the Indian country, with one Colishe Ducharme, that they were in the' same brig- ade, and that, going to Swan River, they met the prisoner, and he then went on to relate a conversa- tion which he swore took place between them. On the part of the prisoner, this man Nicholas Ducharme, (commonly known in that country by the name i of Colishe,) is the first witness called^ (Page^l.J and he says positively, that no such conversation did take place, and that all which passed between him and the prisoner was an enquiry as to the length of time since he had left the Grand Portage, and his own answer, that owing to contrary winds he had been a long time on the journey or voyage. A num- ber of questions were put to mm, in which different parts of the conversation related by Des Loges were embraced, and to which he most positively gave a denial, contradicting in toto the whole that this Poirier dit Des Loges had sworn to, with the single exception of the fact that they did meet the prison- er in going to Swan River ; in no other part of their testimony do they agree. Thf before, ^ntle- men, between this contradictory testimony it is for you to decide ; the Court would be assuming to itself a part ©f your prerogative were it to give am !f. : ^V'!' 'A r *in It if': IM m imiB ^fl B, m •m t 15^ opinion upon it. You must hold the b^lancei fttii impartially weigh the various and extremely contn dictory parts of the evidencei and, according to you conviction, credit or reject the testimony of th witnesses. The only assistance a jury can have forming a just decision upon contradictory testimc ny, is the characters of the individuals who give it and in the present instance you have had evidenc produced as to the character of these two mei Ducharme and Des Loges. Two persons of gres respectability, one of whom has known him fo twenty years, say the -old man, Ducharme, bears i most excellent character, whilst three witnesses givi Des Loges one of the most infamous description asserting generally that they do not consider hin entitled to credit upon his oath, and that they wouk not believe him on his oath. If, gentlemen, yoi believe Ducharme, there is not only an end to Dej Loges testimony, but also to Faye and La Pointe'Sj for a great pait of what they gave evidence to, is contradicted by Ducharme. La Pointe you wilJ recollect swore that upon the answer of the Swan River people that sometimes Keveny stole, and sometimes he bought, the half-breeds set up a shout of joy, saying, " il ne volera pas plus long terns." ("Page 4f5,J Ducharme swears positively the re- verse, that there was no shout of joy amongst the people of the prisoner's canoe, nor any at all. Faye also relates a conversation which Is contradicted by Ducharme. It may be proper here to remark that the stories of the two men differing so widely, and the character of Des Loges being intended to be attacked, the gentlemen who conducted the defence, desir^ that Poirier dit Des Loges might be brought into Court, to let Ducharme declare whether the witness on the part of the Crown was the person of whom he hud been speaking. Des Loges. comino; 153 1^ into Court was declared by Ducharme to be the person whom he had meant, and whom he had con- tradictedi in the most solemn manner, in almost every particular to which he had sworn. I will re« fer yoti, gentlemen, to the testimony of Ducharme,* because, if you believe him, you ^must throw on one side the whole of Des Loges evidence, and the greater part of Faye and La Fointe's. Being asked, (Page 82J whether during tlie time they were in company with the brigade f^om Swan River, M*- Lellan said any thing and what ? He answered, " II <* ne parloit pas un mot pendant tout le tems que "j'^tois H. II ne m'a aiiftmement paild de Keve* «« ny, pas un mot, ni au train." H? also, in answer to a^ question, whe^er if the prisoner had said any thing it would not, as he was guide, have been to him, said, it certainly would, but that M'Lellan did not say a single word about Keveny ; he added that a half-breed made some enquiry whether witness had seen Keveny, mnd that he had told him, yes, he had seen him above the Dalles. He was again asked by Mr. Vanfelson ; « Dans le tems que votre brigade a # "rencontr^ le canot de Mons. M'Lellan, a-t-il de- " mandd k vous, Colishe, si vous aviez eu connois- "sance en chemin de Mons. Keveny, etyavezvous " repondu, et qu'est ce que vous avez dit." He re- plied, " Non, Mons. Archy ne m*en a demands rien, ni m*a parl^ de Keveny :" Again being asked, "Si Mons. Archy, le prisonnier, Ta demands, " comment Keveny fesoit pour vivre, et s*il a re- " pondu — que quelquefois il vole, et quelquefois il " achete," he again answered, " Non, point de tout, ** ni Tun ni Tautre.** A third question was put in the same manner, whether, (upon the answem^hich he, in his last reply had denied having been made at all,) he heard M'Lellan say, " H^ bien, c'est bon ; ** il ne volera pas long-terns, demain u ces heures son U m s mm wm * Hi *i !Ji: ci- t «« IfAs i^' 154 *« affairs s^ra faiwf^' to which he replied in the san manner — " Nod pdrint de tout." Tliese direct coi tradictions to De^ Loges* evidence, \i^ credited I you, must of course conDpletely do it away, knd j they are also opposed to the statements ot Ta^iftn , La Poiiite in varioul particulars, will ha\e a sim lar eflect upon their tekimony-i— But, gentlemen, \\ * Court give no opinion upoii the subject, it is entire left to you to decide where the preponderance < credil)ility attaches itself. All the' Court wishe and ail it will do, is to ppint ou^ the striking par of the evidence to your potipe, and then k ave it 1 * your decision. It is, W#ever, impossible, n yc believe Diicharme, that you can for a moment ei tertain Pes Logos* testimony. Relative to the e§ei it will have upon the two Canadians* evidence, tl Court can not but remark that they appeared to fei as if they yet recollected the cof^ dt baton by the referring to it so frequently, and it will b» for yo to say whether that circumstance Ina^irhave had an; and what, influence upon their testimony, but thei ^ very frequent reference to the circumstance prove that it has made a very strong impression upon thei minds. You will consider whether it is of a natui calculated to bias their evidence. Another circun stance, ^hich you can not but have noticed, relativ to these two m, en, is that they never recollect tli person who said this, that, or the other, nor th « piece where they were at the time they relate transaction to have occurred, thougfi they are s very minute in their narrative of particulars, and tlii forgetfulness*is on points which it might be siif pose^hey would particularly remembtr as beiiii conni^lteti with their own occupation. But, wliils on parts of traiisactions which it would not be sui prising ii'iecollection failed them, they are exceed jngly positive, of others which it would be mori * whilst La Pointe states (Page 47.^ that he saw a bois brule or half-breed put it in the tent of M'Lellan* In their account of the destruction of the papers alleged to have belong- ^ ed to the deceased they e^i|^lly differ- Faye's state- * ment is (Page 36. J that there was a trunk contain- ing pa|)ers which was opened by De Reinhard, and> examining the papers, he threw them into the bour- geois' tent, where M'Lellan stayed, who read them» and tore and burnt them there. La Pointe gives altogether a different account of this part of the transaction* J[n«the first place he says they were read and burnt at the engage's fire ; that they were not taken out of the cassette by De Reinhard, but Were brought by Ithe prisoner himself to the fire of the engage's in the trunk or cassette, and not by De Reinhard, and what is most singular, that De Reinhard was not there at all. These striking dif- ferences in their testimony will be sufficient perhaps to shake your confidence i^ either, if not perhaps to destroy their testimony altogether. The Coijrt however gives no opinion upon the credibility of it ; it is your own unbiassed decision, which must regu- late your verdict, but it is our duty to notice to yoii equally the favourable and unfavourable parts of the testimony, and in so doing I must now obscM^e, in- dependently of the differences between their own * statements, that the oath of Michel Martin goes to coutradict them at almost every point. Relative ta ' \ .4. *, '^ ^ :r. . n. ■ * 1 ' ii; 'Ji fr * briiles was tiiUivotdable. Relative to the prisofi< following Keveny, ke says the reason was becaut he had heard of the capture of Fort WilUaro, whic w^0ta not known at the time Keveny was sent awa When this information was received at Bas de Riviere I think he must have known of Keveti having been turned over to the two Canadian lad ^*1ind the Indian Jos^, tHough it is not in evidenc that he did, but the circumstance of his being di tained, owing to the quaprel of these people, certaii ly could not have been in his own knowledge* Tn ^ prisoner's account of meeting him is that he cam * upon him accidentally, and takes him up that h might be forwarded on to this province. Th reason of his going in the little canoe, if you believ Martin, is because it was impossible he could go i the large one from its being already overloaded, ir deed the evidence o i the part of the Crown, thoug it goes tlie length of saying that he might have bee taken in the canoe of the prisoner, yet says that hi would not have found himself ** a son aise." These circumstances seem to explain those whid appear unfavourable to the prisoner down to tha pcnod ; down to the time of this parting with Keve nv the last time that he was seen alive. It only re niaiiis to notice the evidence as to the conduct o\ the prisoner atler the time when, I think it can nol be doubted but, the fact of the murder wr« within his knowledge. Faye an^giLa Pointe concv in re^ present 'Tig that the prisoner treated De Reinhanl m every particular as before, that they eat, drank and slept together, as usual, and that they saw no differ- ence. Martin says certainly they did eat and drink togetJier, yet that he saw a difference in Mr. M*- Leilan^ and that he did not look upon him in the same light as he had formerly done. Some enquiry was also made as to the possibility of this sort of in- ff'W # ^^0 m ^ :^ tercourse being avoided, which you will doubtless re- collect, and give to it what weight you tliink proper. The Court^ gentleftien, will mak^. no conclusions sa to these very contradictory and extraordinary state- ments. Our duty is merely to put them before you, and this we have done, on the one side and on the dther, to the end that you may correctly apply cach*||i| part of the evidence to the point of the case on which it bears, and when you have maturely and conscientiously considered it, in all its bearings, that you may satisfactorily and conscientiousTy say ^whether Archibald M'Lellan, the prisoner at the 4ar, is guilty or not guilty. jlrhe Jury then retired, and in about ten minutes re- ^ turned, saying that they had agreed in their verdict which wa^ to be delivered by Mr. Measam. Clerk of the Crown.— How say you, is Archibald M'Lellan, the prisoner at the bar, guilty of the felony and murder whereof he stands indicted, or not guilty ? Mr, Measam.^NOT GUILTY : The verdict was Jormally recorded. The Jury aS' sentedto the record, and the Chief Justice, having thanked them for their attention, they were dis^ charged* * The Attorney General stated to the Court that he ^ had other matters against Mr. M*Lellan, one of which was a cJiarge qf being an accessary qfier the J act, to the. murder of Governor Simple, and Mr. APLcllan, giving ^isjactory hail to appear to answer to the cfiargp, was then liberated. FINTS. * t-^