V- n, or tha back covar wlian appropriata. All othar original copies ara filmad baginning on tha flrat paga with a printad or illuatratad impras- sion, and anding on tha last paga with a printad or illuatratad imprassion. Tha laat racordad frama on aach microfiche shall contain tha symbol — ^> (moaning "CON- TINUED"), or tha symbol y (moaning "END"). whichavar aprlias. Laa imagaa auivantaa ont 4t* raproduitas avac la plua grand aoin, ccmpta tanu da la condition at da la nattatA da I'axampialra film*, at an conformiti avac laa conditions du contrat da filmaga. Laa axamplairas originaux dont la couvartura an papiar ast ImprimAa sunt f iimAs an commanpant par la pramlar plat at m tarminant soit par la darnlAra paga qui comporta una amprainta d'imprassion ou d'illustration, soit par la sacond plat, salon la cas. Tous las autras axamplairas originaux aont filmte an commandant par la pramiira paga qui comporta una amprainta d'impraaaion ou d'illustration at an tarminant par la darniAra paga qui comporta uns talla amprainta. Un das symboias suivants apparaltra sur la darnMra imaga da chaqua microfiche, salon la cas: la symbols — »• signifia "A SUiVRE". la symbols y signifia "FIN". Maps, platas, charts, ate, may ba filmad at different reduction ratios. Those too large to be entirely included in one expoaura are filmed beginning in tha upper left hand corner, left to right and top to bottom, ae many frames as required. The following diagrams illustrate the method: Lea cartas, planches, tableeux, etc., peuvent Atre filmte i des taux da rMuction diffArants. Loraque la document est trop grand pour Atre reproduit en un soul clichA, 11 est film* i partir da i'angia supArieur gauche, de gauche k droite, et de heut en bas. an prenant la nombre d'images nAcessslre. Les diagrammes suivants illustrant la mAthode. 1 2 3 1 2 3 4 5 6 ft ' V ^/ L» \A. .«.>_^- ' C t-*w* J (X (rvrU^^ «/l »\A.>^' ^* »» ^--^^ a.-. ft. ::-C_ ■...:... v«^ SUPERIOR COURT. MONTREAL. rl* t" No. ooa. ^ ' John Connolly, Plaintiff ; fe^*'^ '^ VJl. ■ Julia Woolrich, Defendant ; AND Thomas R. Johnson, et ah, Executors and Defwdants par Reprise dUnstance. Present — The IIonble. Mr. JusircE MONK. The facts of this most important case appear from the remarks of the Court (Mr. Justice Monk) in giving judgment for Plaintiif, at Montreal, the 9th July, 1867, as follows : — This is an action instituted the 13th of May, 1864, for the re- covery by the Plaintiflf of the sixth portion of one half of the estate in Defendant's possession, and claimed by Plaintiff as his share in a community of property alleged by him to have existed between his father, the late William Connolly, and Susanne, Connolly's wife, mother of the Plaintiff. The case is onO of im- portance, and involves a great number and variety of questions, both of law and feet. The Court has considered it an imperative duty, as the decision is one of much interest to the parties, and in some measure, to the public, to enter at length into a review V of the peculiar circumstances of the case, and also of the law by which it must be determined. The declaration sets forth in substance, that in the year 1803, the late Wm. Connolly, at the Riviere mix Rats — Rat Rive>* — in the Rebaska, or Athabaska country, in that part of British America, known and distinguished as the Hudson's Bay Terri- tory, married an Indian woman, called Susanne Pas-de^iom, of the Cree tribe or nation ; that this marriage was celebrated according to the usages and customs of the Territory, and could not be otherwise solemnized, as there were no priests or ministers r^isiding there at that time ; that these parties lived together continuously and happily as husband and wife from 1803 till 1832, during which period there were born of this marriage several children, of whom Plaintiff is one ; that Wm. Connolly died at Montreal on the 3rd June, 1849, leaving a large amount of property in Upper and Lower Canada, which is, in part, enu- merated and described. It is then averred, that there was no contract of marriage between the parties, and that consequently a community of property existed between them according to the law of Lower Canada, and that the real and personal estate was acquired during the existence of the marriage ; that Mrs. Con- nolly died at Red River, in the Hudson Bay Territory, on the 14th August, 1862, leaving the Plaintiff, and several other children, her heirs-at-law ; that Wm. Connolly, the father, left a will, dated in 1848, by which he bequeathed all his property to one Julia Woolrich and to two children, issue of a connection between Wm. Connolly and the said Julia Woolrich ; and that the latter took possession of all the estate, and still holds it ; that Connolly, the father, could dispose of only one half of the pro- perty, inasmuch as his lawful wife was living at the time of his death, and she was, consequently, entitled to the other half of the estate, as commune en Mens with her husbands ; thien, alleging baptism of children in December, 1831, the Plaintiff concludes that he be declared proprietor of the sixth part of his mother's half share of the estate belonging to the community, and that Defendant do account. It is to be remarked, that Rebaska or Athabaska is stated (whether in 1803, or at the time of the bringing of the action, does not appear very certain) to be situated within the Hudson's Bay Territory ; and it is also to be noted that the Plaintiff does not pray to be declared the legitimate offspring of Wm. Connolly and the Indian woman, Plaintiff's mother. Defendant pleads that Connolly was never married to Susanne ; that on the 16th May, 1832, he was married to the Defendant, I '^■nv 8 Julia Woolrich, according to the ritea of the Church of Rome, from which date thev enjoyed the titatus of husband and wile, and in this marriagef there was continual acquiescence on the part of Susanne and her family, and among others by the Plaintiff ; that by the laws of the Hudson Bay Territory, and particularly at the Riviere aux Itats, and by the law which has prevailed, in that country for the last 100 years, no community of property resulted from a marriage there. The Plaintiff answers, that at the time of Connolly's pretended marriage to Julia Woolrich, 16th May, 1832, Susanne, Connolly's lawful wife, was living, she having died long after, that h on the 14th August, 1862 ; that Wm. Connolly was born at Lachine, in Lower Canada ; that he had not resided in the H. B. Territory with the intention of remaining, but intended always to return ; that he was in the employ of tlie Company ; returned to Montreal in 1831, and remained in Lower Canada till hU death in 1849. The Plaintiff has ignored entirely the marriage between Wm. Connolly and Julia Woolrich, and the suit has been directed against her as an unmarried woman, as a spinster. Neither by his declaration, nor by his special answer, has the Plaintiff prayed that this alleged marriage be declared null. It is also to be observed, that the Defendant has not, by her plea, asked that the marriage existing between Connolly and the Indian, be de- clared a nullity, or that the Court should hold that such a mar- riage never legally existed. The only questions, therefore, raised by the pleadings and presented for my adjudication, are 1*^ was there a legal marriage between Connolly and the Cree woman ; and if so 2° did a community of property result from that mar- riage, under the cu'cumstances of this case ? Upon this restricted, but intelligible issue, the parties proceeded to the adduction of evidence which will receive the careful con- sideration of the Court hereafter. But before entering upon an examination of this testimony where it may prove concurrent and conclusive ; where it may conflict, or bear a less clear and direct proof of important facts, it' may be proper, with a view to a more easy understanding of the real difficulties of the case, to state generally but briefly, what the testimony of record establishes indisputably as matters of fact in the opinion of the Court. The late Wm. Connolly went to the Indian country as a clerk in the service of the North- West, not the Hudson's Bay, Com- pany, in the year 1802 or 1803. He was stationed at the Riviere aux Rats, or Rat River, in the Athabaska district, which is situated, according to Judge Johnson's evidence, about 2000 miles from York Factory, and over 1200 miles from the Red w ^. River Settlement. In the year 1803 he, hy his own admission, married, according to the customs of the country, the daughter of an Indian chief of the Cree nation, named Susanne Pas-de-nom . The Cree Indians are a tribe whose territory is on the Elk or Athabaska River, near the lake of the same name, and which is about 300 miles from the Rocky Mountains. They were both minors. After their alleged marriage, and up to the summer of 1831, they appear to have lived together as husband and wife at Rebaska and other posts in the North- West country. It is proved that he continually acknowledged and treated this Cree woman as his wife during twenty eig|[htyears, and they had several children. They lived happily, and their conjugal relations, so far as the evidence goesj were those of inviolable fidelity to each other. In the year 1831, Wm. Connolly, (who, after the amalgamation of the two Companies had become a chief factor and member of Council of the Hudson Bay Company in 1825,) came to Lower Canada with his Indian wife and several of his children. He went with them to reside at St. Eustache, where two of his daughters were baptized by a Catholic priest, to whom, and the principal people of the locality, it seems, Connolly introduced Susanne as his lawful wife. She passed by the name of Mrs. Connolly, and associated with the people of St. Eustache as his wife. After remaining there four or five months, Connolly came with his wife and children to Montreal, and there boarded first with his sister, and afterwards with a Madame Pion. There is no proof to show that any intimation was given to Mrs. Connolly of the occurrence which was about to take place on the 16th May, 1832. The Cree woman was still in Montreal when Con- nolly on that day married his second cousin, the present Defen- dant, Julia Woolrich, a lady of good social position and of high respectability. It would appear that the Indian wife felt very sensibly this desertion, and Connolly's marriage to another woman. The Plaintiff contends that this was a repudiation by Connolly of his lawful wife, and that the second marriage is void. The view which the Court takes of this summary proceeding on the part of Wm. Connolly, and of his subsequent union with Miss Woolrich, will appear in the sequel of these remarks, and by the judgment to be rendered in this case. Some time after these occurrences, Susanne was sent to the Red River Settlement, and was there supported in a convent until her death, in 1862, first by Mr. Connolly, and after he died, in 184j9, by the defendant, Julia Woolrich. Of the marriage of Wm. Connolly and J. Woolrich there was issue two children. J. Woolrich died on 27th July, =^S?iS 5 ISfw"), al'ter making a will dated 28th January, 1861, hy which she left several legacies, and amongst others,' j£80 to Smanne and two small legacies to the Indian children, William and Henry Connolly ; but the principal part of the property, which was con- siderable, she becpieathed to her children. Having adverted thus briefly to a series of facts clearly estab- lished, it is proper now to set forth the pretensions of the De- fendant more completely than they have been developed in the pleas. The Defendant's counsel, Mr. Cross, has urged in arginnent at great length, that the Common law of England prevailed at Ilebaska in 180l>, and that the testimony in this case does not establish a legal ma.iriage between Wm. Connolly and the C) ee woman under and according to that law ; that the usages and customs of marriage observed by uncivilized and pagan nations, such as the Crees were, cannot be recognised ])y this Court as giving validity to a marriage even between the Indians themselves, and more particularly, and much less, between a Christian and one of the natives ; that there can be no legal marriage between two parties so situated under the infidel laws and usages of bar- barians ; that the broad and well recognised principle that the lex loci contractus determines the validity of marriages solemnized in Christian countries, according to the laws, sanctions and cere- monies of such countries, does not apply in the present case ; can have no application to the connection existing between Mr. Connolly and this Indian woman ; that even if the Plaintiif could successfully urge this principle of the law of all christian nations, and one so Avell known to the common law of England, yet there is no sufficient proof of the existence of any such usage as that contended for, or that the Plaintiff's parents were ever married even according to the customs of the Cree nation ; that there is no contract, verbal or Avritten, proved ; no solemnization of any marriage established ; that the connection of the Plaintiff's par- ents was fugitive, temporary, dissolvable at pleasure, and had none of the legal or religious characteristics of marriage ; that polygamy is one of the incidents or privileges of barbarian life, and that a law in regard to marriage which sanctions such an anti-Christian usage, rannot be regarded as a foreign law deserv- ing of recognition by this Court ; that no presumption of a mai*- riage can result from the connection of the Plaintiff's parents, because it was broken off by Connolly and was not persisted in till his death, and this argument is urged with double force in this case, as it is proved that by the Indian law, marriage was dissolvable at the will of either party ; that the status of husband 6 I I) and wife between Connolly and Julia Woolrich is beyond tbe reach of question, by a marriage of »S0 years ; that Susanne and the Plaintiff, her child, ac(juiesccd in this marria*5e, and that by general repute, and by his baptismal certificate, it is shown that his status was that of illegitimacy ; that before ho could bring this action he should have established a xfatnH of legitimacy ; that the marriage with Julia Woolrich was solemnized according to law ; that it is and was legal, and must be so considered till the contrary is judicially declared ; that this marriage is an effectual bar to the Plaintiff's pretensions, and finally, tluit there is not and cannot be by law any community of property resulting from this Indian marriage, evidently illegal ; and if legal, none exists by the law of England, which prevailed at Rat River in 1803. There is also another difficulty of a technical chai-acter. It was urged that this action should have been brought by all the children of Coimolly by his first wife, and not instituted by the Plaintiff alone. These are succinctly the chief grounds taken by the Defendant ; they will be more fully explained hereafter. Jf^ Proceeding now to a more minute and leng^ned examination of this case, the first question to be disposed of, whether the law of England in regard to marriage prevailed at Riviere-aux-Ilats in 1808, or whether the law of France or her contiguous colonies, or the Canon law, or the decrees of the Council of Trent, were in force, or whether the Indian custom and usage relative to marriage, constitute the only rule by which this Court can be guided in determining the question of the legality of this marriage between Connolly and the Cree maiden. Mr. Justice Aylwin and Mr. Justice Johnson have been examined in this cause as witnesses. The former gentleman, produced by the Defendant, says : " At the time of the birth of the Plaintiff at Rat River, in 1803, the English law prevailed in the Hudson Bay territory, and has done so ever since — that is to say, it has prevailed since the Patent of King Charles, which regulated that country." Judge Johnson, witness for Plaintiff, in cross-examination, says : " The laws which prevailed throughout the Hudson Bay " territories are the laws of England, with such- modifications as " have been made by the local Councils having- authority under " the Charter to pass such laws. The English common law was " introduced into the country at the date of the granting of the " Charter to the Company by King Charles." From this qvidence, we are left to infer, according to this high authority, the common law prevails throughout the Hudson Bay (( (( (( u u u a territory in virtue of the Charter generally, and in ro;j;ard to all the inha]>itant8 or occupants of the territory, wlietlier natives or Europeans. Mr. Hopkins, witncvss for Defendant, havinjj; he(Mi in the service of the Hudson Bay Company for twenty-five yeai's, and a ^^entleman of ;^reat in dli/jjence, testifies tliat " the laws l)y " which- tlie Hudson liay territory is {governed are the laws (-f " Enj^land, modified l)y certain regulations passed hy the Council " of the Hudson Bay Company." Mr. Hopkins adds: " J know " the place milled lUhmka from offie'tal iNfercourHe, (ind from " havinrf been in the vieinitt/ of It. It in one of the moat remote districts, and is tvithout the limits (;ality is, an near as I can ascertain, situate i)i latitude nhont r)S*^ north, and longitude west from (JreenAvieh ahout 111*^. It is on the north shore of the lake, and ahout <)()0 miles from the Hudson Hay Coast. ■ It is due east ahout MOO miles fron, the Bocky Monn- tains, and due north from the houndary line of the United Stat(\s ahout 050 miles, and it is nearly the same distance, due south, from the Arctic r»r Frozen Ocean. Of course the deviations along the existing lines of travel would make the distances hy these routes much greater than the estimate here made. As hefore stated, I have no positive evidence that any French trader or hunter visited the precise locality called liiviere-aax- RatB during the cixteenth or the first half of the seventeenth century, though there is every reason to helieve they had heen there. It is, in ray opinion, more than prohahle, from all I can collect, or learn from a careful examination of the authorities at my command, that some portions of the Athaltaska country had, hefore 1640, been visited and traded in, and, to some extent, occupied by the French colonists and traders in Canada, and their Beaver Company formed in 1620. From that date, during the thirty years which immediately preceded the grant of King Charles II. in 1670, these trading settlements liad considerably increased in number and importance. If this he true, it will be seen hereafter that, apart from the (juestion of the Company's limits, the Athabaska region was, by a general clause, excepted from the grant of King Charles ; for although neither tlie laws of France, nor those of her contiguous colonies, may have obtained at those distant settlements in 1670, the date of the Hudson Bay Charter, yet I think it is beyond all doubt that the Athabaska, and other regions bordering on it, belonged to the Crown of France at that time, to the same extent and by the same means, as the countries around Hudson Bay belonged to the Crown of England — that is to say, by discovery, by hunt- ing, and trading explorations, — with this difference, that in the case of the French traders there was a kind of occupation, whereas the English never occupied or settled any part of the Hudson Bay coast till 1669. I will assume, for the purposes of argument, that, in both these cases, the principle of public law applied, viz., that in the case of a colony (though they were not plantations or colonies in the proper . legal sense of the terms) acquired by . discovery and occupanc^j which is a plantation in the strict and original meaning of the word, the law of the parent states then X 10 V in being were immediately and ipso fgcto in force in these new settlements — that is to say, at Athabaska and on the Hudson Bay ; and that the discoverers and first inhabitants of these places carried with them their own inalienable birthright, the laws of their country. Yet they took with them only so much of these laws as was applicable to the condition of an infant colony. For the artificial refinements and distinctions i icident to the property of a great and commercial people, the mode of maintenance for the established clergy, the jurisdiction of spiritual courts, and a multitude of other provisions, were neither necessary nor con- venient for them, and therefore not in force. The whole of their institutions were also liable to be new modelled and reformed by \!i\Q general superintending power of the legislature in the mother country, and even this doctrine would apply only to newly- discovered and uninhabited regions. Bui in both cases under consideration, the discoverers and first settlers found these wild regions occupied and held by numerous and powerful tribes of Indians ; by aboriginal nations, who had been in possession of these countries for ages ; and in regard to the Cree Indians, it is stated by a writer who professes to have a familiar knowledge of the natives, (Martin's Hudson Bay, pp. 84-85) : " The Orees are the largest tribe or nation of Indians, and are " divided into two brandies — the Crees on the Saskatchewan, and " the Swampies around the borders of Hudson Bay, from Fort " Churchill to East Main. Forty years ago, in consequence of " their early obtainment of firearms, they carried their victories " to the arctic circle and across the Rocky Mountains, and " treated as slaves the Chipewyans, Yellow Knives, Hares, ' " Dogribs, Loucheux, Nikanies, Dahotanies, and other tribes in " the adjoining legions." Now, as I said before, even admitting, which the Court cannot, except for the sake of argument, the existence, prior to the Charter of Charles, of the common law of France, and that of England, at these two trading posts or establishments respec- tively, yet, will it be contended that the territorial rights, political organization such as it was, or the laws and usages of the Indian tribes, were abrogated — that they ceased to exist when these two European nations began to trade with the aboriginal occupants. In my opinion, H is beyond controvf sy that they were not— that so tar from being abolished, they were left in full force, and w&re not even modified in the slightest degree in X e gard to thej axil rights of the natives. As bearing upon this ""^15171 cannot do better than cite the decision of a learned and ■■HIH mmm* 11 a u (( ;( (( august tribunal — the Supreme Court of the United States. In the celebrated case of Worcester against the State of Georgia^ (6th Peters Reports, pages 515-542), Chief-Justice Marshall — perhaps one of the greatest lawyers of our times — in delivering the judgment of the Court, said : "America, separated from Europe by a wide ocean, was " inhabited by a distinct people, dmcTed into separate nations, " independent of each other and of the rest of tiie world, having '* institutions of their own, and governing tliemselves by their '* own laws. It '\t> difficult to comprehend the proposition, that " the hihabitants of either quarter of the globe could have right- ful original claims of dominion over the inhabitants of the other, or over the lands they occupied ; or that the discovery of either hy the other should give the discoverer rights in the country discovered^ which annulled the pre-existing rights of its ancient possessors. " After lying concealed for a series of ages, the enterprise of " Europe, guided by nautical science, conducted some of her " adventurous sons into this western world. They found it in " possession of a people who had made small progress in agricul- " ture or manufactures, and whose general employment was war^ hunting^ and fishing. " Did these adventurers, by sailing along the coast, and occa- " sionally landing on it, acquire for the several governments to " vrliom they belonged, or by whom they v.'ere commissioned, a rightftd property in the soil, from the Atlantic to the Pacific ; or rightful dominion over the numerous people who occupied it ? Or has nature, or the great Creator of all things, conferred " these rights over hunters and fishermen, on agricultmists and " manufacturers f " But power, war, conquest, give rights, which, after posses- " sion, are conceded by the world ; and which can never be con- " troverted by those on whom they descend. We proceed, " then, to the actual state of things, having glanced at their " origin, because holding it in our recollection might slied some " light on existing pretensions. " The great maritime powers of Europe discovered and visited " diJBferent parts of this continent at nearly the same time. The " object was too immense for any one of them to grasp the " whole ; and the claimants were too powerful to submit to the •" exclusive or unreasonable pretensions of any single potentate. " To avoid bloody conflicts, which might terminate disastrously " to all, it was necessary for the nations of Europe to establish " some principle which all would acknowledge, and which should u u a I T 12 \^ " decide their respective rights as between themselves. This " principle, suggeste'* by the actual state of things, was, * that " ' discovery gave title to the government by whose subjects oi* " * by whose authority it was made, against all other European " ' governments, which title might be consummated by possession.' •' (Johnson vs. Mcintosh, 8 Wheaton's Rep., 543. " This principle, acknowledged by all Europeans, because it " was the interest of all to acknowledge it, gave to the nation " making the discovery, as its inevitable consequence, the sole " right of acquiring the soil and of making settlements on it. It " was an exclusive principle which shut out the right of competi- " tion among those who had agreed to it ; not one which could " annul the previous rights ef those who had not agreed to it. It " regulated the right given by disco veiy among the European " discoverers . but could not affect the rights ef those already in " possession, either as ahonginal occupants, or as occupants by " virtue of a discovery made before the memory of man. It " gave the exclusive right to purchase, but did not found that " right on a denial of the right of the possessor to sell. " The relation between the Europeans and the natives was '' determined in each case by the particular government which " asserted and could maintain this pre-emptive privilege in the " particular place. The United States succeeded to all the claims " of Great Britain, both territorial and political ; but no attempt, so far as is known, has been made to enlarge themi So far as they existed merely in theory, or were in their nature only exclusive of the claims of other European nations, they still retain their original character, and remain dormant. ISo far as they have been practically exerted, they exist, in fact, are understood by both parties, are asserted by the one, and ad- " mitted by the other. '" Soon after Great Britain determined on planting colonies in " America, the king granted charters to companies of his subjects " who associated for the purpose of carrying the views of the " crown into effect, and of enriching themselves. The first of " these charters was made before possession was taken of any " part of the country. They purport, generally, to convey the " soil, from the Atlantic to the South Sea. This soil was " occupied by numerous and warlike nations, equally willing and '' able to defend their possessions. The extravagant and absurd " idea, that the feeble settlenients made on the sea coast, or the *' companies under whom ihec^ were made, acquired legitimate ••' power by them to govern the people, or occupy the lands from " sea to sea, did not enter the mind of any man. They were (4 (4 U a a a m 13 " well underatood to convey the title which, according to the " common law of European sovereigns -respecting America, they " might rightfulty convey, and no more. This was the exclusive " righ*. of purchasing such lands as the natives were wilUng to " sell. The crown could not be understood to grant what the " crown did not affect to claim"; nor was it so understood. * * * " Certain it is, that our history furnishes no example, from " the first settlement of our country, of any attempt on the part " of the crown to interfere with the internal affairs of thi' " Indians^ farther than to keep out the agents of foreign powers, " who, as traders or otherwise, might seduce them into foreign " alliances. The king purchased their lands when t/hey were " wilUng to sell, at a price they were willing to take ; but never " coerced a surrender of them. He also purchased their " alliance and dependence hy subsidies ; but never intruded into " the interior of their affairs, or interfered with their self " government, so far as respected themselves only.^"* The ugh speaking more particularly of Indian Lands and Territories, yet the opinion of the Court as to the maintenance of the laws of the Aborigines, is manifest throughout. The principles laid down in this judgment, (and Mr. Justice Story as a member of the Court concurred in this decision), admit of no doubt. Philhmore in his International Law CCXLI. p. 208, Ed. of 1854 says : — " The nature of Occupation is not confined to any " one class or description ; it must be a benefidal use and " occupation fie travail d^ appropriation J ; but it may be by a " settlement for the purpose of prosecuting a particular trade, " such as a fishery, or for working mines, or pastoral occupa- " tions, as well as agriculture, though Bynkershoek is correct in " saying, ' cultura utique et cura agri possessionem quam " maximd indicat.' " " Vattel justly maintains that the pastoral occupation of the " Arabs entitled them to the exclusive possession of the regions " which they inhabit. ' Si les Arabes pasteurs voulaient cultiver " soigneusement la terre, un moindre espace pourraitleur suffire. " Cependant, aucune autre nation n'est en droit de les resserrer, " a moins qu'elle ne manquat absolument de terre ; car enfin ils " possedent leur pays ; ils s'en servent ^ leur maniere ; ils en " tirent un usage convenable a leur genre dc vie ; sur lequel ils " ne rcQoivent la loi de personne.' " " It has been truly observed that, ' agreeably to this lule, the " North American Indians would have been entitled to have " excluded the British fur-traders from their hunting grounds ; 14 II U " and not having done so, the latter must he considered as having " been admitted to a joint occupation of the territory, and thus " to have become invested with a similar right of excluding " strangers from such portions of the country as their own indus- " trial operations pervade.' " Authorities might be accumulated on this point, concerning which al] writers agree. Mr. Fox in the great Debate upon his system of Government for India said : — " It had been often suggested that it would be advisable to " give to the Gentoos the laws of England ; but such an attempt " would be ridiculous and chimerical. The customs and religion nf I ndia, filq fjihftd t»| fm nfih with them." I have no hesitation in saying that, adopting these views of the question under consideration, (and acquiescing, for the sake of argument, in the pretensions of the Defendant) the Indian political and territorial rights, laws, and usages remained in full force — ^both'at Athabaska and in tiie Hudson Bay region, previous to the Charter of 1670, and even after that date,. as will appear hereafter. I come now to the consideration of that Charter ; for it was indirectly or impliedly contended that it not only introduced the common law of England, but abrogated the Indian customs and usages, within the territories. Hudson's Bay had been discovered prior to the attempt in which Hudson perished in 1610 ; but from the voyage of Sir Thomas Button, in 1611, till the year 1667, it appears to have been wholly neglected by the English Government and nation. In the latter year, the communication between Canada and the Bay vvas discovered by two Canadian gentlemen, Messrs. Raddis- son and De Groselliers, who were conducted thither across the country by Indians. Succeeding in this, they returned to Quebec, and offered the dierchants to conduct ships to Hudson's Bay, the proximity of which to the principal Fur districts, was now ascertained. This proposal was rejected, as well as a sub- sequent one to the French Government at Paris ; there they were persuaded by the English Ambassador to go to London, where they were favourably received by some merchants, and persons of high rank, who commissioned a Mr. Gillam, long accustomed to the Newfoundland trade, to prosecute the discovery. Mr. Gillam sailed in the Nonsuch, in 1667, into Baffiin's Bay, to the height of 75° north latitude, and thence to 51'^, where he entered a river, to which he gave the name of Prince Rupert's ; and finding the Indians friendly, erected a small Fort. The persons interested in this vessel, upon the return of Gillam, applied mmmmmm mmmm ■unn ■■■■ 16 to Charles the Second for a Patent, who granted them the Hudson's Bay Charter, dated the 2nd May, 1670, and from which I make the following extracts : — The Charter declares — " We have given, granted, and con- " firmed, and by these presents, for us, our heirs, and successors, " DO give, grant, and confirm, unto the said Governors and " Company, and their successors, the sole trade and commerce of " a/l those seas, straits, bays, rivers, lakes, creeks, and sounds, " in whatsoever latitude they shall he, that lie within the entrance " of the Straits commonly called Hudson's Straits, together with " all the lands and territories upon the countries, coasts, and " confines of the seas, hays, rivers, lakes, creeks, sounds, afore- " said, that are not already actually possessed hy or granted to " any of our suljects, or possessed hy the subjects of any " other Christian Prince or State, witl: the fishing of all sorts " of fish, whales, sturgeons, aad all other royal fish in the seas, " bays, inlets, and rivers, within the premises, and the fish therein " taken together with the royalty of the sea upon the coasts " within the limits aforesaid, and all mines royal, as well dis- " discovered as not discovered, of gold, silver, gems, and " precious stones, to be found or discovered within the territories, " limits and places aforesaid, and that the said land be from " henceforth reckoned and reputed as one of our plantations or " colonies in America, called * Rupert's Land.' " " And further we do by these presents, for us our heirs, and " successors, make, create, and constitute che said Governor and " Company for the time being, and their sucaessops, the true and" " absolute lords and proprietoq^i the same territory, limits, and " places aforesaid, and of all other the premises, saving always " the faith, allegiance, and sovereign dominion due to us, our ♦' heirs and successors, for the same to have, hold, possess, and " enjoy the said territory, limits, and places, and all, and singular " other the premises hereby granted as aforesaid, with their " and every of their rights, members, jurisdictions, prerogatives, " royalties, and appurtenances whatsoever, to them the said " Governor and Company, and their successors for ever to be " holden of us, our heirs and successors, as of our manor of East " Greenwich, in our County of Kent, in free and common socoage, " and not in capite or by knights service ; yielding and paying " yearly to us, our heirs and succeseors for the same, two elks, " and two black beavers, wheresoever and so often as we, our " heirs and successoss, shall happen to enter into the said " countries, territories, and regions hereby granted. " And further our will and pleasure is, and by these presents, /I / t % i ^: I IC [■ a " for us our licirs, and successors, we do grant unto tlie said " Governor and Company, and to their successors, from time to " time, to assemble themselves, for or about any tlie matters, " causes, affairs, or business of the said trade, in any place, or *' places for the same convenient, within our dominions or else- " where, and there to hold Court for the said Company, and the " affaii-s thereof; and that, also^ it shall and may be lawful to and " fcr them, and the greater part of them, being so assembled, " and that shall then and there be present, in any such place or " places, whereof the Governor or his Deputy for the time being " to be one." And the Company has the right " to make, ordain and consti- tute such and so many reasonable laws, constitutions, orders " and ordinances as to them, or the greater part of them, being " then and there present, shall seem necessary and convenient " for the good government of the said Company, and of all " governors of colonies, forts and plantations, factors, masters, " marines and other officers employed or to be employed in any " of the territories and lands aforesaid, and in any of their " voyages ; and for the better advancement and continuance of " the said trade or traffic and plantations, and the same laws, " constitutions, brders and ordinances so made, to put in, use and " execute accordingly, and at their pleasure to revoke and alter " the same or any of them, as the occasion shall require : And " that the said Governor and Company, so often as they shall " make, ordain or establish any such laws, constitutions, orders " and ordinances in such form as aforesaid, shall and may law- " fully impose, ordain, limit, and provide guch pains, penalties " and punishments upon all oflfenders, contrary to such laws, " constitutions, orders and ordinances, or any of them, as to the " said Governor and Company for the time being, or the greater " part of them, then and there being present, the said Governor or his Peputy being always one, shall seem necessary, requisite or convenient for the observation of the same laws, constitu- tions, orders, and ordinances ; and the same fines, and amercia- ments shall and may, by their officers and servants from time to time to be appointed for that purpose, levy, take and have, to the use of the said Governor and Company, and their suc- *' cessors, without the impediment of us, our heirs, or successors, " or of any the officers or ministers of us, our heirs, or success " sors, and without any account therefore to us, our heirs, or " successors, to be made : All and singular which laws, constitu- " tions, orders and ordinances, so as aforesaid to be made, we " WILL to be duly ■ 3^rved and kept under the pains and penal- ty it li a imwim i i i .uwwwMtMtf w, ■'V:-' 17 a ties therein to be contained ; so always as the said kws, con- " stitutions, orders and ordinances, fines and anierciunients, *• be reasonable, and not mntrary or repmjnnnt, but an near as " may be ayrcmblc to the laws, statutes or msto/ns of thin oilr " realm.'''' And the " (iovernor and Cu.apany shall have liberty, full " power and authority to appoint and establish Governors and all " other officei-8 to govern them, and that the Governor and his " Council of the several and respective places wnere the said " Company shall have plantations, fort.*, factories, colonies or " places of trade within any the countries, lands or territories " hereby granted, may have power to judge all persons bdonijinfi " to the said Governor and Company, or that shall Hoc under " the7n, in all causes, whether civil or crimuial, according to the " laws of this kingdom, and to execute justice accordingly ; and " in case any crime or misdemeanor shall be committed hi ai.>y " of the said Company's i)lantations, foi-ts, factories or places oi " trade witliin the limits aforesaid, where judicature cannot be " executed for want of a Governor and Council there, then in " such case it shall and may be lawful for the chief Factor of " that place and hie Council to transmit the party, together with " the offence, to such other plantation, factory or fort where " there shall be a Governor and Council, where justice may be " executed, or into this kingdom of England, as shall be thought " most convenient, there to receive such punishment as the " nature of his offence shall deserve." From these extracts it will be seen : 1. What description of territory, rivers, and sea Cv its were ceded ; and that the tenure of these extensive regions av,.s to be that of free and common soccage. 2. That the Company had power to make laws and regulations agreeable, in so far as might be, to the laws and customs of the realm. 3. That the English law, civil and criminal, was introduced and made applicable within the territory to all persons belonging to the Company, or li'ing under them ; and 4. That territories then already actually possessed or granted to any British subjects, oi possessed by the subjects of any other Christian Prince or State, were excepted from the gi-ant. It is no part of my duty, upon the present occasion, to offer any opinion upon the validity of this extraorduiary Charter, though that point is not without interest in this case ; and it is worthy of note, that some of its clauses have given rise to doubts among lawyers, and have been the occasion for considerable 18 controversy both in England and in this country. Several modes of testing the (juestion have been suggested ; but as yet, none have been adopted. Apart from the immense and irresponsible powers conferred upon the Company, it has been contended that the grant in free and common soccage of such extensive regions of territory in tlie actual possession of aboriginal and j)owerful nations was not in the power of the crown, and was a violation of the plainest principles of pubhc international law. Some have gone further, and contended that without the authority of Parliament such a grant of land and exclusive privileges and monoply could not be made ; that the concession of the exclusive right of trade with the Indian tribes was an ill\,al exercise of tne Royal Prerogative ; that the Com- pany have never carried out the intentions of the Crown, either by proper attempts to find a north-west passage to the Southern Ocean, or by makhig useful discoveries and planting, settling, and colonizing the territory ; that they have not attempted, by even ordinary means, to civilize the natives ; nor have they, by judicious and appropriate regulations, laws, and government, endeavoured to render such a vast and important dominion of the Crown beneficial to the Parent State. The Company, when called upon from time to time, have answered these charges more or less sucessfully ; and they have further urged that in the reign following that in which this Charter was granted, the cession received the confirmation of Parliament ; but it was specially provided that the Act of confirmation should only remain in force for the period of seven years, " and from thence to the next session of Parliament, and no longer." After this, no re-confirmation of the Charter by Parliament ever took place, though its existence has frequently been incidentally recognized in Acts of that body, and among others may be noticed the following: — By an Aut of Parliament of Great Britain (43 George III., chap, cxxxviii.), passed in August, 1803, it was provided that crimes committed Avithin the Indian territories, which, though not conveyed by Charter to the Company, have long been leased to them, should be cognizable by the Courts of Upper and Lower Canada. The preamble of this Act recites that crimes and offences committed withm the Indian territories were not cognizable by any jurisdiction whatever. In 1821, an Act (1 and 1 George IV., chap. Ixvi.) was passed extending the provisions of the above-named Act to crimes and offences com- mitted within the territory covered by the Company's Charter, anything " in any grant or Charter to the Company to the con- " trary notwithstanding." This latter Act also gave to the •^' 19 Canadian Courts a right of jurisdiction within the Indian territory, as well as over Rupert's Lund, which is covered by the Company's Charter. All this may give rise to interesting investigations hereafter. But for the purposes of this case, I take the Charter as I find it, and regard it as legally conceding territory and introducing the Common Law of England, with a restricte(i application within the limits of the gi-ant. And conceding this, it he/omes necessary, C / in' the first place, to enquire whether the Athabaska region was ' included within the Chartere oorporum suorum dominium mntuo tradunt et redpiant. By the Civil law it has been regarded as Cnntractun quo hgitima personce riti et mutuo corporum momm dominium et redpiant. So far as marriage requires religious sanciion,, it may be considered maris and feminoi covjunctio individuw vitce retinens secundum pre- scriptum leffum divinarHm et humanarum ad usum conjugalem. Among the chosen people and the heathen nations of antiquity before tlie teachings of Christ, marriage in many respects was not unlike that described as existing among the aboriginal inhabitants of this continent. We must in regard to many of these nations always except the facility of divorce and repudiation. Among some of the barbarians of North America, marriage is said to be dissolvable at pleasure — at the will or caprice of either party — the meaning of which is, I presume, that the causes which justify divorce are very numerous ; and that the formalities to be observed in the exercise of this mutual right of repudiation, are very few. Jr- is a question" of degree ; more or less ; and so far it is different from the law of divorce as it obtains and has obtained among many civilised and christian nations. It seems to be admitted among all Christians, +hat our Saviour imparted to marriage a more solemn and sacred character than it previously possessed ; and the Roman Catholic Theologians and Councils hold, that it was elevated by Him to the dignity of a Sacrament, and that the bond was rendered indissoluble. I have no good reason to doubt but that this has been the doctrine of the Church of Rome, upon the two fii'st points from the time of the 25 Apostles to the present day ; in fact we have the authority of TertuUian, who wrote in the middle of the Second Century, and of msaiy later farthers, that this was the doctrine of the Church ; though of course, it was extremely difficult to impress these doctrines in all their strength and purity upon nations passing from Paganism to Christianity, or to enforce their strict observance amidst the corruptions and violence of a vast Empire perishing from the effeminacy and licentiousness of its people. The Church came in at the decline ; Avhile she prepared to encounter with weapons more powerful than those of man, the wrath of the barbarians, advancing now to the destruction of Roman power and Roman civilization, her work of conversion was still incomplete, and her doctrines not entirely or inadequately asserted. Perhaps during the Centuries of disorder, licentious- ness and violence which preceded and followed the final over- throwing of the Western Empire, it was impossible to inculcate or to enforce those doctrines which were defined and promulgated in later and more Christian times. I am not called upon to detennine that question, but in order to appreciate in a religious point of view one peculiarity of t'lib Indian marriage, that of having taken place by mere consent without rites or ceremony, it becomes necessary for the Court to refer to some of the laws of the Christian Emperors and to PJpistles and decretals of the Popes. Constantine, the first Emperor who acknowledged Christianity on the throne, and many of his successors, expressly recognize divorce in their laws. We have several collections of of Roman !aws since the Empire became Christian, which define what marriage was under these laAvs : — 1st. The Theodosian Code which was published in 438, and 2nd, the Code of Justinian and other parts of his legislation ; in them will be found, in the greatest detail, what constituted a legal marriage. In the Institutes, we find the following : "• Justas nuptias inter se cives romani contrahunt, qui secun- '' dum prsBcepta legum coeunt : masculi (piidem puberes, focminas " autem viripotentes si/e patres-familiarum sint, sive filii-fami- " liarum. Dum tamen, si filii-familiarum sint, conenssum habeant " parentum, quorum in potestate sunt. Instit. lib. i, tit. X, in " princ." This is what the Digest calls the nuptial rite — the essential and legal rite. In a law of Theodorius, we find the folloAving ; " Si donationum ante nuptias, vel dotis instrumenta defuerint, " pompa etiam, aliaque nuptiarum edebritas omittatur, nulhis " sestimet ob id deesse, recte ali5,s inito matrimonio, firmitatem, " vel ex eo natis hberis jura posse legitimorum auferri, si inter 26 a V" pares honestate personas, nullfi- lege irapediente, fiat consortium, " quod ipsoruin consensu, atque amicorum fide firmatnr. Cod. " Theod. lib. Ill, tit. 7, I. 3." This the famous doctrine of Tlieodorius, *lie younger, promul- mulgated 428, and inserted in the Theodorian Code. It was 3ftei vards adopted by Justinian. We find these words in the ';hird chapter of the 22nd Novel : " Nuptias itaque offectus altermts facit^ dotalium non egenis " augmento. Ciim enim semel convenerint sub puro nuptia " aftectu, sive etiam oblatione dotis, et propter nuptias dona- " tionis ; oportet causam omnino sequi etiam solutionem aut " innoxiam. aut cum poena." It will be borne in mind that these pecuniary arrangements were not essential to the niarriage contract ; but they were regarded as evidences of consent and their omission gave rise to serious difficulties. In his Hth Novel. (App. 4) Ave find the law which defines more in detail than any other Avhat shall constitute a legal mfa'riage ; but nothing ip said there about any religious ceremocy. He says : " Et antiquis promulgatum est legibus, et i\ nobis ipsis sunt " hoec eadem constituta, ut etiam nuptice extra dotalia docu- " menta ex solo affectu valeant et rate sint. Cap. IV. in pruic. " Introeuntes testes sine periculo mentientes, quia vir vocabat " dominam cohoerentem, et ilia uUrm similiter nominabat ; eu sic " eis finguntur matrimDnia non pro veritate conficta. Ibid. " In majoribus itaque dignitatibus, et quaecumque usque ad '• nos et senatores ot magnificent issimos illustres, neque fieri haec " omnino patimur ; sed sit omnino et dos, et antenuptialis donatio, " et omnia quae honestiora decent nomina. Quantum vero in " militiis honestioribus et negotiis, et omnino professionibus " dignioribus est, si voluerit legitimd uxori copulari, et non facere " nuptialia documenta, non sic quandocumque et sine cautela, " effuse '^t sme probatione hoc agat, sed veniat ad quandam ora- " tionis domum, et fateatur sanctissimse illius ecclesiae defensori : " iile autem adhibens tres aut quatuor exinde reverendissimorum, " clericorurn, attestationem conficiat declarentem, quia sub Hid " indietione, illo mense, Hid die mensis, illo imqerii nostri anno^ " consule illo, venerunt apud eum in illam orationis domum Hie " et ilia, et conjuncti runt alterutr', etc. Eod. cap. § !•" This legislation continued until the reign of Leon VI, Emperor of the East, in 911. In the West the nuptial benediction was rendered necessary much earlier. In his Capitularies, Charlemagne, in 802, established by law the necessity of the nuptial benediction and the indissolubility of marriage. But, "■ 27 notwithstanding those laws, I think it is beyond doubt that marriages Avere held to be valid without this religious ceremony, and that too, immediately and long after the promulgation of the "apitularies. The authority of Popes and Bishops would perhaps be considered sufficient to establish that fact in a matter of this kind. I find in the reply of Nicholas I, in 866, to the Bulgarians, after stating the ceremonial required in the CathoUc Church to be very much the same as it now is. The following words are to be found in the conclusion : " Hsec sunt jura nuptiarum ; haec sunt, praeter alia quae nunc " ad memoriam non occurrunt, pacta conjugionum solemnia. " Peccatum autem esse, si haec cuncta in nuptiali foedere non " inter veniant, non dicimus, quemadmodum Graecos vos oestimare " dicitis ; praesertim cum tanta soleat arctare quosdam rerum " inopia, ut ad hsec praeparanda, nullum his suffragetur auxilium : " ac per hoc aufficiat secundum leges solus earwm consensus, de " quorum coujunctionihus agitur. Qui consensus si solus in nup- " tiis fortd defuerit, coetera omnia, etiam cum ipso coitu celebrata, " frustrantur ; Joanne Chrysostomo, magno doctore, testante, " qui ait ; Matrimonium non facit coitus, sed voluntas. Ibid." Pope Adrian the Second, successor of Nicholas, was applied to, that he might determine whether a certain marriage, celebrated without the presence of a priest, was or was not valid ; and he wrote to the Bishop of the Diocese in the following words : " Ut autem omnis quoestio super eodem matrimonio de coetero " sopiatur, per apostolica tibi scripta mandamus, quatenus hujus- " modi connubium dissolvi nulLuoniis patiaris, sed firmum facias " atque inviolabile permanere. Si enim alias personae conve- " nientes et legitimae fuerint, et contractus ipse legibus concor- " dans, ita quod non videatur ei de sacris canonibus obviare ; " pro eo quod sacerdos absens fuerit, tale matrimoniuw, non " debet ullatenhs impediri. Ibid. There does not appear to have been any peculiar circumstances about this marriage, except the absence of the Priest ; it is to be remembered however, that several witnesses were present. Pope Alexander the Third, writing to the Bishop of Salerno, says : — " Inquisitioni tuae taliter respondemus, quo si legitimus con- " sensus h, solemnitate quae fieri solet, praesente saeerdote, aut " etiam ejus notario, sicut etiam in quibusdam lads adhuc obser- " vatur, coram idoneis testibus interveniat de praesenti, ita quod " unus alium in suum mutuo consensu verbis expressis recipiat, " utrinque dicendo : Ego te recipio in meair,et ego te recipio in " meam, et ego te in meum ; sive sit juramentum, sive non, non " licet mulieri alii nubere, etc. — Cone. Labb. t. X, col. 1574." II 28 \ M) The same' Pope in writing to an English Prelate, the Bishop of Norwich, makes the following remarks : — " Super eo (juod ex tuis litteris intelleximus virum quemdam " et mulierem, des mandato Domini utriusque, sese invicem rece- " pisse, nullo sacerdote proesente, nee adhihitd solemnitate, " quam solet Anglicana ecclesia exhibere et aliam mulierem ante " carnalem commixionem solemniter duxisse et cognovisse ; tu?e " prudentiae taliter duximus respondendum, (}Uod si primus vir " et mulier ipsa pari consensu de prescnti sese receperint, dicendo " unus alteri : Ego te recipio in meum, et ego te recipio in " meam; etiamsi noninterccsserit ulla solemnitas, nee vir mulierem " carnaliter cognoverit, mulier ipsa primo debet restitui, cftm nee " potuerit, nee debuerit, post talem consensum, alii nubere. — •■' Antonii Augustini antiqu?e decretalium coUectiones. Paris. " 1621, p. 103." Innocent the Third, replying to the Bishop of Brent, says : — " Postulasti utrum ex £olis verbis, et ex quibus matrimonium " contrahatur. No's igitur inquisitioni tuoe taliter respondemus, " quod matrimonium in veritate contrahitur per legitimum viri " et mulieris consensum : sed necessaria sunt, quantum ad eccle- " siam, verba consensvmi cxprimentia de presenti. — Decretal. " Greg. IX, de spons. et matr. cap. 25." In the decretals we find the marriage per verba de prcesenti referred to in language the most precise. It may take place before the priest, or before the relatives and friends of the parties : this kind of marriage may take place without witnesses, provided both parties admit the fact, and even may be proved by a simple presumption arising from cohabitation. It would be fatiguing to cite aufciiorities in support of this view of the Canon law, as it stood in earlier times. It can be easily understood that, as at Rat River — it was not always possible to have any other form of marriage — and under peculiar circumstances there can be no doubt, that such marriages were regarded as valid by the Canon law. These quotations are given to exhibit some of the legislation of the early Christian Emperors in regard to marriage, and to prove also what were the opinions of some of the most learned and illustrious among the Popes of Rome ; and finally what were the principles of the earlier Canon law in this respect. Of course neither these laws nor the opinions of the Popes, necessarily convey what were the doctrines of the Church, but they are worthy of note in a case like the present ; they show that consent was the main element in the contract, that no reli^ioyis or other ceremonies were in every case essential. In 20 the course of time the Ecclesiastical power became more strict ; and the doctrines of the Church, on these subjects, amonii; others, were defined and promulf^ated in the decrees of the Council of Trent. It is unnecessary for me to speak of these decrees, they were never published in En^^land or France, much less in the North West or Athabaska teri-itory, We come now to encjuire Avhat was the Common law of England in respect to marriage ; and what are the forms recpiisite in France and Scotland. In France, before the Revolution, the form of marriage was of a mixed nature, and it was held, by lawyers, that the essence of the marriage consisted rather in the civil contract than in the sacrament or religious solemnization ; for the marriage law of France was derived from the ancient canon law, subject to regu- lations of the provincial councils of the kingdom, agreeably to the independence of the Galilean church, and subject also to the control of the monarch. !None of the orjiinances and declarations of ancient France embody fand enforce, in express terms, the provisions of Papal bulls and the Tridentine decrees relative to marriage. In an edict of Henry IV., 1606, there seems to be a recognition of the authority of the Council. The substitution of the civil magistrate for the ecclesiastics appears to constitute the principal differences between the rules observed during the ancien regime and those of the code civil ; each ex- hibiting an equal precaution in their preliminary forms ; and parental right is scrupulously maintained ; for the declaration of the 24th sesssion of the Council of Trent, which rendered the consent of parents unnecessarry for the validity of marriage, was protested against on the part of France, and was virtually dis- avowed by the Ordonnance de Blois, in 1579, and by the subse- quent royal edicts on that particular point. According to the civil code of France, it seems that a domicile of six months is a necessary qualification for marriage ; after which a municipal offiee j' ftf the commune of the domicile, at the door of the hall of the commune, publishes the names, residence, and age of the parties intended to marry, and tlie names and residence of parents. After this publication, a public act is drawn up, set- ting forth the description of the parties, and the day, time, and place of the publication, a copy of which remains fixed on the door of the hall of the commune, until the end of eight successive days, when the publici^ion is to be repeated with the same formalities. After a lapse of three complete days from the last publication, the marriage may be celebrated on a day appointed by the parties at the hall of the commune, by the municipal H Mi :'»■; C) u;-k-.J.-A.-':.-lL2i:.. t:C*.K,> ■*,-*■-' -.■ '. ^-A'-iV^'Oik;- ■■■ 80 officer, in the presence of four witnesses. The officer, after ad- dressing the parties on tlie subject of their duties, receives their separate declaration that they take each other for husband and wife, and then, in the name of the law, pronounces them to be united in marriage, and a public act is immediately drawn up and recorded. According to the law of France, it is only in virtue of this act that the rights belonging to marriage can be maintained in that country, so that, like the marriage act of England, the law of France, as to the form of marriage, is not merely directory, but prohibitory also ; admitting (as it seems) no marriage to bo valid that has been contracted within the territory according to any other form, than that prescribed by the civil code of the kingdom. The decree of the Council of Trent was never recognized in Scotland. In marriages at Gretna Green, a blacksmith has sup- plied the place of a priest or a magistrate. By the canon law, there being as before msntioned, a distinc- tion between the contract de proesenti and promise de futiiro ; the former constituting a good marriage of itself ; the other not, unless followed by copida or some other act which is held in law to amount to the carrying the promise into eflFect : and this canon law prevailing in Scotland, Lord Stowell adjudged that under the Scotch law, the contract de proesenti does not require con- summation in order to become " very matrimony ;" that it does ip^ facto et ipso jure constitute the relation of man and wife. (Dalrymple vs. Dalrymple, 2 Haggard's C. R. 54 ; 4 Eng. Eccl. Rep. 485.) This position was approved in the House of Lords. (McAdam vs. Walker, &c., 1 Dow. 182.) By force of such a contract in Scotland (without religious cele- bration). Lord Stowell, in the Dalrymple case, pronounced Miss Gordon the legal v^rife of Mr. Dalrymple, an English officer, who, after making in Scotland a contract of marriage with her, was married in England to Miss Manners, the sister of the Duchess of St. Albans. In Spain the decrees of the Council of Trent were received and promulgated by Philip II. in his European dominions. But the laws appUcable to her colonies consisted of a code issued by the Council of the Indians antecedent to the Council of Trent, and are to be found in the code or treatise called Las Siete Partidas and the laws of Tore. The law of marriage as contained in the Partidas is, that " consent alone, joined with the will to marry, constitutes marriage.^^ (10 How. 182.) It is matter of history that many marriages were contracted in the presence of civil magistrates and without the sanction of a 81 prie?t in Spanish colonies, ■which have since been ceded to the United States. (Id. 180.) Whether An actual contract of marria<;e, made before a civil magistrate (and followed by cohabitation and acknowledgment), but without the presence of a priest, was valid, and the offspring thereof legitimate according to the laws in force in the Spanisli colonies previous to their cession to the United States, was a question in Hallett, &c., vit. Collins, and it was determined in the affirmative. But it may be asked, what were the pature and obligatory force of a contract per verba de proc^enti by the Engjfsh common laAv, l)revious to the passing of the Marriage Act, in the 26 Geo. II. 'i It was supposed by Gibbs, C. J. of the Common Pleas, that before that Act, marriages in England were governed by the canon law, and that a contract of piarriage entered into per verba de proesenti, should be considered an actual marriage if followed by cohabitation. (Lautour, &c., vs. Teesdale and wife. 8 Taunt. 830, 4 Eng. Com. Law, Rep. 299.) Lord Ellenborough also thought that a contract of marriage ^>f?r verba di 'prcenenti would have bound the parties before that Act. (King vh. Brampton, 10 East 288.) And the opinion of Gibbs, C. J., has some support in the language of Sir William Scott, in Dalrymple vs. Dalrymple. But in that case, it was of no importance whether or no the canon law of Europe was intro- duced into England as part of its law ; the only question in the Dalrymple case, in respect to the canon law, being whether it was introduced into the law of Scotland. In the United States, the Courts of several of the States have gone quite as far as Chief Justice Gibbs. Thus it has been laid down by the Supreme Court of New York, that a contract of marriage made per verba de prcesenti imounts to an actual marriage, and is as valid as if made in facie eeclesice^ (Fenton vs. Reed, 4 Johns. 52 ; Jackson vs. Winne, 7 Wend. 47) ; and by the Supreme Court of Pennsylvania, that marriage is a civil contract which may be. completed by any words in the present time without regard to form. (Hantz vs. Scaly, 6 Binn. 405 : Patterson vs. Gaines and wife, 6 How. 587.) And upon the ground that parties have power to contract marriage inter se, without the intervention of a clergyman — that such is the common law — the Supreme Court of New York, in the absence of proof to the contrary, presumed this to be the law of Connecticut at the time of the marriage, which was in question in Starr, &c., vs. Peck, I Hill 271. To the view of the common law of England, acted upon in ' ^ f 82 li. the American Union — the same taken by Chancellor Kent in his commentaries, and Jud^e Story in his treatise on the Conflict of Laws — ^Lord Campbell, in tl,e case of The Queen vh. Millis, called attention in the llouse of Lords to the fact that the United States " carried the common hiw of En^^lan*! along Avith them, and jurispi'udence is the department of human knowledge, to which, as pointed out by Burke, thev have chiefly devoted them- selves, and in which they have chiefly excelled." (10 Clark k Fhm. 777. ) A view of the law different from that which Lord Campbell sought to enforce was taken by Chief Justice Tindal. This J^idge, who, foi- learning and ability, Lord Campbell has pronounced, is not inferior to the most distinguished of his prede- cessors, endeavoured, in the case of The Queen vs. Millis, to show that the law by which the spiritual courts of England have from the earliest time been governed and regulated, is not the general canon law of Europe imported as a body of law into England, and governing those courts pymna viffore, but, instead thereof, an ecclesiastical law, of Avhich the general canon law is no doubt the basis, but which has been modified and altered from time to time by tlie ecclesiastical constitutions of the English bishops and archbishops, and by the legislature of the realm, and which has been known from early times by the distinguishing title of the king's ecclesiastical law. (10 Clark & Fin. 678.) The opinion of a majority of the common law judges of England, as delivered by Chief Justice Tindal, was, that by the law of England, as it existed at the time of the passing of the Marriage Act (1758), a contract of marriage per verba de prceaenti was a contract indissoluble between the parties them- selves, affording to either of the contracting parties by applica- tion to the spiritual court the power of compelling the solemniza- tion of an actual marriage ; but that such contract never constituted a full and complete marriage in itself, unless made in the presence and Avith the intei«vention of a minister in holy orders. The opinion delivered by Tindal, C.J., was dissented from by Lord Brougham in the House of Lords ; he thought it reasonable to presume thjit the English laAv touching marria^^e^- Avas the same with the general law of catholic Europe, untiLiH^as shown that England had receded from that law. (P. 722.) He considered that she had not so receded until the Marriage Act ; and therefore, that until that Act, the English law agreeing with that of all Europe, a marriage per verba de prcesenti Avas valid without the intervention of a priest. (P. 732.) With Lord Brougham concurred Lord Campbell (p. 746) and Lord Denman (p. 804). These three judges Avere of opinion that before Lord A 88 Hartlwicke's Act of 1753, a contract per verba dc pra-ncutl was, hy the English law, a good marriage, ipnum matrimonium, (p. 829) ; Lord Campbell distinguisliing between the case of a mere betrothment ; a mere executory contract per verba de prcfsenti for a marriage thereafter to be solemnized, tlic parties not meaning to be husband and wife until such solemnization ; and the case of nnpticB per verba de prw^fMi without any contem- plation of a future ceremony as necessary to complete the relation of husband and wife, (p. 749.) But the Chancellor (Lord Lyndhurst) did not consider that by the law of England, previous to the Marriage Act, a contract of present marriage had so great an effect as was ascribed to it by these three judges. He considered such a contract a marriage for many, but not for all purposes ; and that in order to constitute a marriage in its complete and perfect state, solemnization was necessary. (P. 844, 5.) Lord Cottenham laid down that the consequences of a valid marriage must be, 1st, to give to the woman the right of a wife in respect to dower ; 2nd, to give to the man the right of a husband in the property of the woman ; 3rd, to give to the issue the right of legitimacy ; 4th, to impose upon the woman the inca- pacities of coverture ; 5th, to make the marriage of either of the parties living the other with the third person void ; and then he proceeded to show by authority that none of these consequences followed from a mere contract of marriage per verba de pra^sentL (P. 878.) Lord Abinger concurring with Lords Lyndhurst and Cotten- ham, the votes were equal — that is, three for reversing and three for affirming. According to the ancient rule in the law, semper prcBSumitur pro negante^ the House affirmed the judgment of the Court of Queeil's Bench in Ireland, holding that a contract of marriage per verba de proisenti in the presence of witnesses does not, in England or Ireland, constitute a valid marriage at the common law, unless it be also in the presence of a regularly ordained minister ; and, consequently, holding the accused who, after such a contract with one woman,^ married another, not to be guilty of bigamy. (P. 907.) By the authority of this decision, the Court of Exchequer has said it was bound. (Cathenvood va. Caslon, 13 M. & W. 261.) The laws which control marriage in civilized countries are in- tended to operate as a protection and not a prohibition. It is to be presumed that parties in barbarous or foreign countries, are to be entitled to an exemption from the strict rule, whenever it is shown that insupportable obstacles alone had occasioned the de- viation from established forans ; and it appears at the same time 3 Y ' '•1 d - II: 84 tliat the marriage, although irregularly had, is in fact a bona fide marriage, free from all suspicion of fraud and clandestinity ; for the law of England, in proscribing a form for its own subjects, does not compel them to impossibilities ; and it is difficult to sup- pose, when a marriage is shown to be complete according to general law, that it could be hold to l)e a nullity, merely on ac- count of a deviation in point of local fonn, arising out of circum- stances which it was not in the power of the party to control, more especially as to deny to parties so situated the rights which, according to natural law belong to every free agent, would have an immediate tendency towards encouraging those unlawful con- nexions which are injurious to society, and subversive of morals and religion. But however limited the degree of indulgence permitted in this respect by the courts of other countries, it is evident from the valuable judgment in the case of Ruding vh. Ruding that those of England (whilst they admit the universal authority of the lex loci, in determining the validity of marriages, pleaded to have been had according to law, and acknowledge the validity of marriage had in conformity to its regulations, without considering Avhether they are more strict or less cautious than our own) do not admit opposite propositions in an equal extent by laying down a positive rule that no marriage is valid that has not been hadjACording to the law of the country of its celebration. In support of what I have here stated, the Court deems it interesting to make the following citations from the decretals: — " Ex parte C. mulieris nobis intimatum est quod Andreas " juramentum proestitit, quod eam ab eo tempore pro conjuge " temeret, et ei sicut uxori suae fidem servaret, Ipsa quoque eidem Andreae juravit se ilium pro marito habiturum, et fidem tanc^uam viro proprio servaturam : quo facto praenominatus A. reliquit eamdem. Quia igitur nemini licet uxorem suam sine " manifests, causS- fomicationis dimittere, ei; tunc eam sibi recon- " ciliare bebet, aut ipsS vivente continere ; mandamus, quatenus " eumdem ut superinduct^ dimissa, et ad uxorem suam redeat, " et eam maritali affectione pertractet, monitione praemiss^, per " eccles. cens. cogatis. Eod. tit. cap. 9, Voy. auQsi le chap. II. de proesumptionibus, et le chap. 6. de eo qui cognovit consan- guineam, etc. " Si matrimonia it£b occulta contrahuntur, quod exindd legitima probatio non appareat, ii qui ea contrahunt, ab ecclesia non sunt aliquateniis compellendi. Verum si personoe contrahen- tium haec voluerint publicare, nisi rationabilis causa proepediat, ab ecclesiS recipienda sunt et comprobanda, tanqu^m h, princi- pio in ecclesiae conspectu contracta. Ibid, de clandestina disponsatione, cap. 2. u it it ii ii ii ii ii ii (( ii '^.\ «>.) *' Vt'iiiciiH ad iioH (iu. sua nobis rolatioiio inoiiHtruvit, ((uod " iu doino sua muliorem quaudam receporit, do (jufi, proleiii " habuit, cui fidem coram jJuribus proestitit, (|Uod earn duccret " iu uxorem. Interim autcm ciim apud domum vicini sui per- " noctavorit, ejus filia nocto iHa sccum concjibuit, (juos pater puello) simul in uno lecto inveniens, ipsum earn per verba de a n u n a n qui posset ui virum constantem cr'' :o, eam desponsavcrit) " adhaerere faoias, ut uxori. Ibid, do spousal ot matrium. cap. 15. — Is quid fidem dedit M. mulieri super matrimonio contra- hendo, carnali copula subsecutfi, si in facie ecclesiie ducat aliam et cognoscat, ad primam redire tenetur : (piia lictJt proc- sumptum primum matrimonium videatur, contra proesumptionem tamen hujusmodi non est probatio admittenda. Ex quo sequitur, " quod nee verum nee aliquod censetur matrimonium ([uod do " facto est postmodo subsecutum. ^od. tit. nap. 30." In conclusion, I quote the opinion of M. Agier, in his Treatise on Marriage, vol. I., pp. 122 and 123 : " Le concile de Trente, pour faire cesser rinconvenicnt de la " clandestinitd, a ordonn^ que les mariages ne seraient contrac- " t^s valablement qu'en presence du propre curd. Mais, sans " examiner pour I'instant si le concile en ce point n'a pas exc6d6 " son pouvoir, j'observe d'abord qu'Jt cet dgard il introduisait un " droit nouveau ; et en consequence le ddcret pbrte qu'il ne " sera execute dans chaque paroisse que trente jours aprea sa " publication. Ainsi, jusqu'fi. ce moment, et dans toutes les " paroisses ou il n'avait pas encore dtd public, les mariages out ** pu se contractor valablement comme autrefois, sans Tinterven- " tion d'aucun pretre. " J'observe ensuito que le ddcret du concile de Trente est " subordonnd, comme toutes les lois humaines, k la loi supdrieure " de la ndcessitd ; d'ou il suit que son execution cosse dans les " endroits ou il ne se rencontre pas de pasteur en exercice, " ni porsonne qui en tienne la place ; c'est la decision uniformc " des canonistes." It may bo well to remember that, in 1803, at Riviere aux Rats there were no priests, no ministers, nor is it , proved that there were any magistrates at that place, or in the neighbourhood. It was a barbarous country situate in the remote wildemessesli^^ of North Western America ; religion had not as yet proclaimed her authority ; had not inculcated her teachings, nor extended her sanctions to the domestic life of the inhabitants. Christianity had /= 86 not built her tciujtloH, nor had tlio cccleamHtical |[M)wt'r Hciit forth (Iccrct'H for the guidaiicu either of the Kuropeaii, or the native. Civiliziitiou had nuide n(» Horiourt impression ; had exerted no salutary influence over those wild regions ind those wilder natio* s of the forest. Associatin;; with Indian warriors, hunters and fishermen, and trading, harterini^ in trinkets, mjiskots, rum and peltries, tlio servants and clerks (►f the North West Company, it is easy to su))po8o, were not very successful in inculcating; mo- rality among the natives, or in maintainin"; their own ; it can, without difficulty, bo hnaginod that the intercoinse and traffic between these men and tlie 8ava;;es, were not likely to fonn a very reli/^ious or refined community. The restraints of law, or the sanctions of religion so far as they rccogtiized either, it may he presuriied were not extremely efFectivo in controlling such a mixture of barbarism and peculiar civilization as prevailed in the Athabaska comitry in 1808, and previous to that time. At such a j)lace, surrounded by such influences and such unfavorable circumstances, if Mr. Connolly, whose moral character seems to have been without reproach, desired, whether from feeling or interested motives, to take this Indian maiden to his home, he had one of three courses to pursue ; that was, to marry her ac- cording to the customs and usages of the Cree Indians — to travel with her between three and four thousand miles in canoes and on foot, to got married by a priest or a magistrate — or to make her his concubine. I think the evidence in this case will clearly shoAv which of these three courses he did adopt, and which of them, during a period of twenty eight years, he honorably and religiously followed. The first enquiry to be made then, is, whether in 1803, at Rat River, in the Athabaska territory, there existed among the Cree Indians there and in the neighbourhood, any native usage, law or custom relative to marriage among the Indians themselves, and also in regard to the European tra(i.3rs and the Indian women ; if so, whether that custom has been proved and what is the nature of it. Before proceeding to exa- mine the evidence of record, and upon which the decision of the Court must of course mainly rest, I may appropriately advert to historical testimony, establishing the existence generally of such a law or custom among the natives ; and as there was a striking similarity in forms, ceremonies and usages of marriage among all the tribes and nations of North American Indians, (with the ex- ception of some /.f^xican tribes) from the Gulf of Mexico to An ti- costi and the frojion Ocean, it will be apparent that the law of the Crees was not exceptional, but entirely in harmony with, and conformable to the general usages of the barbarians over the entire continent of North America. 8T lusu^^e VVaHhin;:;t(>n Irvin;:;, in liis A.storia, HJiyn, in rot'croiico to tliis '* The rtiiitor rcpairH not to tlio bovver of lii.s njiHtirss, *' hut to her I'athcr'H lod^^c, und throws down a present at his " te(«t. Jlis wiHlies aro then disclosed hy sonic discreet friend " employed hy him for the pnrposo. If tlie suitor and his " present find favor in the eye of the fatiier, ho ))reaks tl»e " matter to his (hiu<;htor, and in»piircs into tlie state of her " hicliiiations. Should her answer Ite favoral)lo, tlie siiit is " accepted, and the lover has to make further presents to the " father — of horses, canoos, and other valuables, accordinj; to " the beauty and merits of the bride ; lookin«i; forward to a " return in kind Avhencver they shall "^o to housekeepin*:;." — (Cap. 56, p. 4f>2.) Hildretli, in his History of the United States, says (Cap. 2. p. 62) : " Marria«^e was a sort of purchase — the father rcceivin;^ " presents from the husband hi exchan^^o for his daughter, who, " after a few months of fondling and favor, fell to the condition of " a domestic servant. Polygamy was not common, except among " the chiefs ; but there were no objections to it. Every Indian " bad as many wives as he could pay for and support. It was, " indeed, the labor of their wives that enabled the chiefs to " maintain the hospitaUty proper to their station. The Indian " husband divorced his Avife at pleasure. In case she proved " unfaithful, he might put lier to death. Unmarried women " might follow, with little reserve, the bent of their inclinations ; " but the Indians of both sexes, as a general rule, were remark- " able for continence. The affection of the women for their " children was unbounded ; the fathers also were very indul- " gent." Bell, in his Statistical and Philosophical Geography of North America, says : " None of the North American tribes, however " rude, are. unacquainted with the institution of marriage. They " generally are contented with one wife ; sometimes they take " two, but seldom more than three. The women are under the " direction of their fathers ip the choice of husbands, and very " seldom express a predilection for any particular person. Their " courtship is short and simple. The lover makes a present, " generally of game, to the head of the family to which the " woman he fancies belongs. Her guardian's approbation " obtained, he next makes a present to the woman ; and her " acceptance of this signifies her consent. The contract is " immediately made, and the match concluded. All this is " transacted without ceremony — without even a feast. The " husband generally carries his wife among his own relations, .41 'S:| 88 I If / !L^ " where he either returns to the tent that he formafly inhabited, *' or constructs a new one for their own use. They sometimes, " but seldom, remain among the wife's relations, /riiesc con- tracts are binding no longer than during the will of both (( a (( u n a a u parties. If they do not agree, the woman retunis fo her " relations, and if they have any children, she takes them along " with her; but after they have children, a separation very " seldom takes place. If a woman be guilty of adultery, and her husband be unwilling to divorce her, he cuts oflf her hair, which is considered the highest disgrace ( u^ which can be put upon a female." — (Vol. 5, cap. 2, p. 274.) ■ Bancroft, in his History of the United States, says (Vol. III., cap. 22, page 266) : " And yet no nation has ever been found " without some practical confession of the duty of self-denial. God hath planted in the hearts of the wildest of the sons of men a high and honorable esteem of the marriage bed, " insomuch that they universally submit unto it, and hold its " violation abominable. Neither might marriages be conti acted " between khidred of near degiee ; the Iroquois might choose a " wife of the same tribe with himself, but not of the same cabin ; " the Algonquin must look beyond those who used the same " totem, or family symbol ; the Cherokee would marry at once a " mother and daughter, but would never marry his own imme- " diate kindred. " On forming an engagement, the bridegroom, or, if he were " poor, his friends and neighbours, made a present to the bride's father, of whom no dowry was expected. The acceptance of the presents perfected the contract ; the wife was purchased ; and, for a season at least, the husband, surrendering his gains as a hunter to her family, had a home in her father's lodge. " But, even in mp.rriage, the Indian abhorred constraint ; and, from Florida to the St. Lawrence, polygamy was peinnitted, " though at the north it was not common. In a happy union, " affection was fostered and preserved ; and the wilderness " could show wigwams where ' couples had lived together thirty " ' an'', forty years.' Yet love did not always light his happiest " torch at the nuptials of the children of nature, and marriage " among the forests had its sorrows and its crimes. The Infideli- " ties of the husband sometimes drove the helpless wife to suicide ; " the faithless wife had no protector ; her husband insulted or " disfigured her at will ; and death for adultery was unrevenged. " Divorce, also, was pennitted even for occasions beside adultery ; it took place without formality, by a simple separation or desertion, and, when there Avas no offspring, was of easy occur- (( a it a li (( (( (( ? 39 ** fence. Children were the strongest bond ; for, if the mother " was discarded, it was the unwritten law of the red man, that " she should herself retain those whom she had borne or nursed." (Vol. III., cap. 22, p. 226.) (See Catlin's Letters on the North American Indians, vol. I., Letter 26, p. 213.) It would be easy to multiply historical authorities on this point, both from English, American, and French historians. They are unanimous, and all go to establish this Indian custom of marriage and its incidents ; and among these incidents, divorce at will is, no doubt, clearly shown. How far this right of divorce at will aflfects the present case, will be seen in the sequel of these observations. But we have other evidence of this custom ; the Court has proof before it, which I am bound to regard as conclusive, and that is, the clear and concurring testimony of witnesses, produced by both parties, and placed on record in this cause. The first witness to whose evidence I shall refer, is that of Amable Dupras. In answer to the question as to the custom of the Cree country, he says : "La fa^on de ces pays est que ' lorsqu'on avait en vie d'avoir une femme, on allait demander ' au pere sHl voulait nous la donner, et si le pere voulait ' donner sa fille, on allait leur acheter quelque chose pskv recon- ' naissance. Ordinairement, c'Stait la fagon du pays de ' donner un prSsent au pere de la fiMle donn^e en mariage. * Ce n'^tait pas loisible d'avoir plus d'uiie' femme. Un homme ' qui Stait marid, comme cela Halt regardi^ comme etant Men ' maris et le mariage Stait regards comme les mariages dHci ; ' et dans le mariage, des noces se faisaient camme dans le ' mariage et les noces dHei. Des Canadiens se mariaient et ' faisaient des noces la comme ailleurs. C^etait imp)ossihle de ' se marier autrement, parcequ'il n'y avait pas de pretres ni *■ ministres dans le pays a ce temps-la, les femmes conservaient ' beaucoup d'autres nations. J'ai souvent vu faire des mariages ' dans ce pays, et je parle de cette coutume avec connaissance. ' J'ai ^t^ souvent moi-meme a des noces." This witness seems to be a man of considerable intelUgenco. He is seventy-two years of age, and in earlier life had been fourteen years in the North- West territory. He knew five or six nations ; and says that, in regard to marriage, this was the general custom. This testimony is, moreover, corroborated by that of a man of the name of Noel Annance, produced on the part of the Plaintiff His evidence is somewhat remarkable, and is to the following effect : — ^'* The Indian customs do not differ much with rega-d to marriagea. The custom of polygamy prevails universally V^" J f/ ii 40 '* among the Indians, particularly with the chiefs, in con8e(iuence " of their ability to support a number of wives; I do not say that *' I have ever known of any persons behig murdered in consc- " quence of a regular intercourse between the sexes. I have " myself seen them greatly ridiculed, and have heard the women " talk especially. V/hen a man and a women live together, they " are called man and wife. I could not say that I ever knew of " any distinction being made in the Indian territory or North- " West hi regard to any man and woman who live together. *' The woman is always called the wife of the man with whom " she lives, without regard to the maimer of marriage. It is always presumed that she has been regularlg bought. When I say that a man cannot legally have two wives in the North- West or Hudson Bay territory, I do not mean that the Indian " law prohibits it, but that the law of the civilized people — that " is, the Hudson Bay Company's servants — are against it. It is " only sometimes that the subject of giving away a girl is " mentioned to the chief, and that purely out of deference to " him. The term squaw, signifies a woman or wife ; a young " woman is called hwvk squaw. A woman who lives with a man " is called that man's squaw, which, in fact, means a wife. If I had a squaw or wife in the Hudson Bay territory, she wonld be called Annance's squaw — meaning my squaw or wife. There was a chief at Faaser River, whom I knew well, who had ten squaws or wives. His Indian name was Saseatan." The Rev. Pierre Aubert, Pere Oblat, testifies as follows : " Si elle n'^tait pas chrdtienne lors de son union avec William Connolly, il faudrait une dispense selon la regie gdnerale des his ecalesiastiques.^^ But he says that, acco'diii- •"o the custom of the country, " VSjpoux offrait des prisenu^ quand les ' presents Staient accepts s les parents donnaient en marriage ' leur jille a Vepoux qui la preyiait alors pour femme.^'' This gentleman was several years in the Hudson Bay territory, and his attention had been much directed to the customs of the coun- try in regard to marriage. He adds : " Les pretres ne sont allds " jusqu'a risle de la Crosse s'y dtablir, qu'en I'annde 1843. " Avant ce temps-la, il n'y avait pas de registres dans ce paysl^." Another witness of great experience and intelhgence, Pierre Marois, thus deposes : " Un homme par la ne pouvait pas prendre " plus qu'une femme, et nous regardions cette union comme " I'union do mari et femme par ici, et union aussi sacrde. J'j^i " dtd mai'id 1^ moi-meme a la fa^on du pays. J'ai vdcu vin-: . " trois ans avec elle, et elle est morte il y a huii ans paF'it .^ Quand on voulait se marier dans le Nord Otiesty il fallait de- a u u (( u a a (.(, a a iJilX'M- 41 (( iiiander mi pare ct a la mere lajillr tpt'oii voula'it avoir, d *<'«7."< " emmmtaient^ on. dfmmuialt aprrt( an, /toarf/colH la jwrmisHlun '' de He marier, et ci'talt Id toute la crrcHtonie ; ct ajn'ca ccla, " tious nous conaiderionH coiiune viari e/ J'emine leijittmes comvte " id, comme si 7iou8 etions maries a Veylisey This evidence is strongly, entirely corroborated by Alexander Robertson and Mr Ilerriott, both men of education and long arid varied experience in the North West regions. Mr Robertson -was in the employ of the Hudson's Bay Com- pany ; he entered the service in 1812, and remained in the North West thirty-six years. He says there was but one form of mar- riage in the North West, and that was the giving away. He sa^v his men get wives in the way he mentions, that is, from their re- latives ; they gave presents if they pleased ; he considered this a marriage according to the customs of the country. Mr Herriott says : " In 1809 I went up to the Hudson's Bay territory. I went in the employ of the Company. I havo risen from apprentice clerk to that of chief factor, from the lowest grade of clerks to the highest position in the Company's employ, except that of governor. I lived in that country up to September, 1864, constantly. I have met the late William Connolly there at Stewart's Lake, in the years 1828 and 1829. " This was the first time I met him, ^e was married then. I " think his wife was a pure Indian of the Cree Tribe. He had " three or four children." — " When I nay 7narried, I mean ac- " cor ding to the custom of the country, which tvas hy aa ayree- " meni between the father of the girl, and the person tvho was " going to take the girl to wife. They lived as married people " when married in this maniier. I considered it as binding as if " celebrated by an Arch-bishop. I was married after the custom " of the country myself. The first clergymen that I b\yf in " that country was in 1838, their names Avere Blanch v, and " Damase, they passed me at Edmonton on the Saskatchewan. ^'' These were the first priests I saw since the year 1809 in that that country. Rebaska is from six to seven hundred miles north from the Saskatchewan. The first clergymen that ' went up the English River went up some time in the forties. I was never there myself. None could have gone there without my knowledge. There was no Courts of Justice " in the Nortb West, except at the Red River Settlement, and " that at a coiiparatively late dale. We followed the English " Law ; it was not customary for the Europeans to take more ^' than one wife ; it was not customary for the Europeans to take " one wife and discard her, and then take another. The marnage u a li u (( <4 u a (( li 42 u m 4#t according to thr. cmtom above described was considered a marriar/e for life. I considered it so. I know hundreds of people living and dying with the woman they took in that way and without any other formalities. According to my opinion this marriage lasted during the Ufetime of the parties in as " binding a manner as if married by a clergyman. The first " missionary that I ever heard of coming was to the Red River Settlement, far to the South of us, was in the year 1819 or 1820, 1 will not be sure as to the date, it may have been 1816. I jieaer heard of :.ny Jesuit Missionaries, nor of any Roman '^^ Catholic Missionaries having resided at any of the Company's posts previous to 1840. These last missionaries came to the Saskatchewan and *^o the English River. I never heard of, or have met anybody in the North West territory who had been married by a priest or clergyman in the North West territory previous to eighteen hundred. There were no Jesuits in that country when I went there. I resided nearly eleven years at " the Red River Settlement. I knew all the European settlers " there until the last four years. I never met any person living " at Red River Settlement who was married in the North West " territory by a clergyman resident in the North West territory " previous to eighteen hundred. I have never seen or heard of any person being married at York Factory or Norway House, or at any post on the Saskatchewan, by a resident clergyman, previous to the year 1817. I know of instances of persons nit ''Hod after the custom I have described bringing their wives inio . '^zed countries and re-marrying them according to the "forms . civilization; but I know of no instance where they " have been so brought into civilization without going through " that form. I know that William Connolly brought his wife down to Canada. There is no rule amongst the natives by which a wife is entitled to property by virtue of her marriage. When a man dies, his family, wife Lnd children inherit whatever he leaves. Had I come to a civilized community, I believe I " should have married according to the civilized forms of solemnizing marriage, I should have done so to please people and to conform to the customs of society." Joseph Larocque, a witness for the defence, in answer to a question in cross-examination, by which he was asked, " How did " a chief clerk, partner, or bourgeois take an Indian wife in the " North- West country ?" says, " He took her by the consent of " her parents and relations ; there was no other ceremony except " the giving of a few presents. The man theii lived with her as " long as he liked or she liked." He adds " that he does not (( (( (( u u (( (( (( u (( a (.(. u t( (( (( (( (( 4( U m 43 i§ " think any of these marriages were legal, because there were no " priests or ministers there." The Court has examhied w ith great care the cross-examination of thes J witnesses, and also the evidence adduced by the defend- ant on this point, but has found nothing to contradict or, in the slightest degree, to invalidate this testimony. It stands unim- peached, and, in my opinion, is unimpeachable. This law or custom of the Indian nations is not found recorded in the solemn pages of human commentaries, but it is written in the great volume of nature as one of the social necessities — one of the moral obligations of our race — through all time and under all cir- cumstances, binding, essential, and inevitable ; and without which neither man, not even barbarism itself, could exist upon earth. It is, I think, conclusively established in this case, by the evidence of intelligent and experienced men, as being an existing and immemorial usage observed and consecrated in one of the most sacred and delicate relations of human life, even among the bar- barians of North America. As such, with rJl its imperfections in a religious view of the holy sacrament ard sanctities of mar- riage, it is entitled to the respectful consideration of this Court. It exacts the solemn consent of parents, and that of the parties who choose each other, for good or for evil, as husband and wife — it recognizes the tie and some of the sacred obligations of married life ; and it would be mere cant and hypocrisy ; it would be sheer legal pedantry and pretention, for any man, or for any tribunal, to disregard this Indian custom of marriage, inspired and taught, as it must have been, by the law and the religion of nature among barbarians, who, in this essential element of a moral life, approach so near to the holy inculcations of Christianity. I apprehend that it is not much more Icose or immoral than the well-known laws of GretnarGreen, which dispense with the con- sent of parents ; a marriage according to this usage of the Crees Avould, in the opinion of the Court, be as solemn and as binding in the eye of the law, as many which the greatest English judges have declared valid. I shall have occasion to refer to this more particularly hereafter. But the defendant contends that, even admitting the existence of this Indian law or custom, there is no legal or conclusive evidence in the record to show that WilUam Connolly was ever married to the Cree woman according to this alleged usage. If this be true — if the testimony upon this point be illegal, be not conclusive — then there is an end of the plaintiff's case. I come, therefore, to the consideration of the proof which he has adduced of his father and mother's marriage ; and this evidence, if admis- .'A I- % 'X' 44 Siiblo ami siilfieleiit in law, results (Ist) from a cohabitation of t\venty-ci;i1it years, (liirinu; which time they were reputed to be husband and wile-— hud the daiuH of niiirried persons, and were known and acknowled;j;ed as such by all the world ; and (2nd) from jVIr. Connolly's repeated and solemn declarations that he had married his Indian wife according to the usages and customs of her tribe or nation, and also from the statements of Mrs. Connolly herself, that she had been married in the manner described by William Connolly. I shall examine, in the first place, the proof of cohabitation and repute. Mr. Alex. Robertson, witness for the Plaintiff, says : — • " I saw the late William Connolly for the first time in 1815 or " 1816, at Cumberland House, in the North-West territory. He " was then in the employ of the North-West Company. I entered " the service of the Hudson Bay in 1812, and during my service " of thirty-six years I saw the said William Connolly very often " at different posts in the North-West territory, at which time " there were no priests or ministers there. I often saw Susanne " at his house at the difierent posts, and he introduced her to " me as Mrs. Connolly. She passed and was universally " acknowledged as his wife at the different posts where I met " her. She was called Mrs. Connolly, and her children by " William Connolly were always acknowledged in public as the " lawful issue of their marriage. There were plenty of white " people there connected with the Company, and they all lived " inside the fort, in the Company's houses, and I heard them " and their wives, white and Indian, and their servants, call " Susanne, Mrs AVilliam Connolly. The fact is, they were " acknowledged to be man and wife everywhere I met them. " Connolly made money in the Company, and brought down his " wife and family to Montreal, many years after I first saw them " in the North-west. She and her children first went to St. Eustache, and then came to Montreal, where they boarded u u with Madame Poulin, Connolly's sister. She was, when in Montreal, called old Mrs. Connolly." " I was intimately acquainted with said William Connolly in the North West, and he never lived with any other woman than his wife, said Suzanne. William Connolly and said Suz- aane were living together as man and wife for about thirty " years to my knowledge." John E. Harriot, witness for Plaintiflf, says : " The Indian " woman that the late William Connolly was living with, was " regarded by all persons living in that country and by myself " as his wife. In speaking of her, the late William Connolly a a (( a 45 (( n a a a " was accustomed to call her his wife, atid treated lior as liis « wife." Amable Dupras, tdinoin pour le Demandcur, dit : " A co " temps-l\, c'est-firdire vers 1818, et pendant tout Ic temps, j'ai " connu Monsieur Connolly et Madame Connolly. J'ai entendu Monsieur Connolly me dire lui-meme que c'^jtait sa femme, et elle ^tait connu par tons les voya,^eurs conruio la femme de Monsieur Connolly. " William Connolly et sa femme Suzanne ont vdcu paisiblemcnt au vu et an s^u de toute leur famille prenant la (jualitd de mari et femme, pendant le temps i\ne je les ai connu." Le dit Amable Dupras r(5pond comme'suit aux questions qui lui sont faites i\ ce sujet : — '*Hi'Mion. — Pendant (piel laps de temps cst-il h votre con iiaidsance que M. Connolly et sa femme Suzanne ont vecu ensemble comme mari et femme, publiquement, au vu et 8(;u de leur famille et le public ? — R(}po7ise — Pendant cinq ans, c'est- a-dire pendant que je les ai connu. Question. — Avez-vous entendu le feu William Connolly lui- meme dire que la dite Suzanne etait sa femme ? — Reponse — Old, Monsieur. " Monsieur Connolly m'a dit que sa femme dtait la fille d'un chef qu'il avait mariSe.'^ Noel Annance, witness for Plaintiff, says : " I then found at Connolly's post at New Caledonia the family of said William Connolly, consisting of his wife, as he told me, and some girls and boys." " I remained at New Caledonia, when Mr. and Mrs. Connolly were living there, four or five days, and then returned to my post. They were living there at that time as man and wife. This I know from what I could see, and from what Mr. Connolly told me. He told me several times that she was his wife, and the mother of his children, and that he had been married to her " according to the custom of the country ; that at that time ho " was seventeen and she fifteen when they were married." " I boarded at Pion's a week with Mrs. Connolly in Montreal. " She w^ao then called Mrs. Connolly." " I never knew or heard of any man and women living together "•in the North West without being married." K^v. Fran9ois M. Turcotte, de St. Gabriel, dit : " Monsieur " Connolly m'a dit lui-meme que la dite Suzanne dtait sa femme, sa " propre femme. Je I'ai interroge sur I'usage de prendre plusieurs " femmes, et il m'a r^pondu qu'l respectait trop sa femme pour " se permettre de faire usage d'autres femmes." (( a ii a (( n (( (( il m m 46 a n u (( (( (C a a PieiTo Marois, t(!moin produit par lo Douiandour, dit : " Jc I'ai " toujours connu (Suzanne) pour la femme do feu William " Connolly et j'en ai jamais connu d'autres pour sa femme. J'ai " 6t6 quatre ans dans I'emploi de la compagnie du Nord Guest, " et dix-sept ans dans la compa<]^nie de lai IJaie d'Hudson. Pen- " dant tout ce tem[)8 la j'ai connu le feu William Connolly, et sa " femme, sauvagesse. J'aihivern(j (juartre ans Ji Fort Cumberland. " Sa femme (jtait avec lui 1\. Quand il nous disait de faire quelcjue chose pour Madame Connolly, il nous dismt: Allezdonc faire ceci ou cela pour ma femme. II vivait avec sa femme comme les autres bourgeois, et elle dtait connue par tout le monde li^ comme Madame Connolly. C'est i\ ma connaissance (i[ue Monsieur et Madame Connolly ^taient marids selon la coutume du pays." Judge Johnson, in his deposition, says : " I cannot tell how long Mr. Connolly lived in the Hudson's Bay Territory. I understand that Mr. Connolly lived with his Indian wife until " the year 1832. I never heard that Mr. Connolly had more " than one Indian wife, and always heard that he was a moral " and well conducted man." Joseph Mazurette, aneio^ voyageur, dit: " La femme do " Monsieur Connolly ^tait de la tribu des Crees. Je les ai connu " que pendant le cours de deux ans, c'^tait tout le temps que " j'^tais 1^. lis ont v^cu la comme homme et femme quand je les " ai connu. Madame Connolly ^tait connue entre tons les bour- " geois et entre tous les engag^is comme la femme de Monsieur " Connolly This is the principal evidence of the cohabitation of Mr. and Mrs. Connolly as husband and wife in the Indian country. The Indian woman throughout all the North West territories, at all the trading posts, and settlements there, was considered and treated both by natives and Europeans as his lawful wife, during a period of nearly thirty years ; the children, moreover, were regarded as legitimate — Connolly acknowledged her as his wife — gave her his name, and bestowed it upon his oflfspring. It is really very difficult to conceive how, upon such facts proved beyond the possibility of doubt, this connection should be con- sidered by any Christian or civilized Court, under the circum- stances of this case, as concubinage, and the Indian woman as Mr. r^^nnoUy's concubine, branding the children who bore his name as illegitimate. But it may be, and it has been, said, that this is precisely the way they do things in the North West. That living with her publicly, treating her and acknowledging her as his wife in that country, amount to nothing ; it is an understood thing, 47 a man takes a Sfjuaw, lives with her as- long at it suits him, and then discards her as ho would a mistress. It is true, he therchy bastardizes and makes outcasts of his children ; — it is also true that when youth and beauty have faded, when the [)urity and di<];nity of innocence have been destroyed by the contamination of unlawful passion, the trader consigns his Indian wife and oftspring to the contempt of the world, dismisses her and leaves her to pass the wretched remnant of her life in solitude and despair. That such is the custom of the country may or may not be the case ; but the European settler cannot act after this fashion. Without contesting this view of the position, without discussing its rea- sonableness or morality, but admitting all that is contended for, there is something more in this case. Mr. Connolly did not restrict his conjugal intercourse with this Indian woman to the country where such extraordinary usages prevail ; it was not only in the North West that he cohabited with her, and treated, and acknowledged her as his wife ; but he brought her to Canada, and continued the same intercourse and treatment here ; and in connection with this branch of the case, there is a fact of consider- able importance, and one, which so far as it goes, has received the serious consideration of the Court, not only in regard to this question of repute and cohabitation, but also with reference to another point, which will require to be carefully examined and decided hereafter. The proof of the facts just adverted to, is in the opinion of the Court conclusive. Henriette Routier, produced on the part of the Plaintiff, says : " Je demeurais avec mon p^re dans la paroisse de St. Eustachc " en 1831. Le feu William Connolly venait dans le mois de " septembre 1831 k St. Eustache, avec sa femme, une sauvagesse " nomm^e Susanne, et leur famille au nombre de six, et tenait " maison vis-?i-vis le magasin de mon pere. L'ain6 de ses enfants " est le Demandeur en cette cause, qui ^tait alors fermier de M. Smith, mon oncle, k St. Eustache. Le dit William Connolly introduisait la dite sauvagesse Susanne k tous les voisins comme sa femme, et I'appelait Mrs. Connolly. Elle recevait des visites 1^, et ma mdre y faisait visites. lis ont rest^s 1^ jusqu'a I'ann^e suivante, et quelques uns de leurs enfants ont 6t^ baptis(3S k St. Eustache. Madame Connolly faisait des achats au magasin de mon p^re, et M. William Connolly venait payer pour elle. Le Demandeur pouvait avoir alors vingt neuf k trente ans. Le pretre qui a baptist les enfants est M. Turcotte, et il venait " souvent faire visite dans la famille de M. William Connolly." Mr. Turcotte, the priest, says : " J'ai connu William Connolly, " le pdre du Demandeur, dans I'ann^e 1831. C'^tait k St. I,;l (( (( m 48 41 S'. il (( (( u (( a n KiiHtachc, h la Uivirre tn.' t'>if(tnfn Iri/itimcH do William Connolly. Le nom do la f'ommo dc; fou Wil. Connolly, dtait Susanno,, saiiva;^esso. 7)/. If//. Connolly/ m^a dit hti-meme, que la (lite Sumnne etalt Hafemine, sa proprefhrnnr.^^ The cross examination of these Avitnesses elicited nothing which materially, if at all, aftects the force of their testimony, from which it is clear that Mr. and Mrs. Connolly lived together as husband and wife at St. Eustache, in Lower Canada ; and other witnesses })rove that he afterwards brought his wife and children to Montreal, whore they remained some time boarding, fi»'st with (JonnoUy's sister, and afterwards with a Madame Pion. But there is no satisfactory evidence to show that they lived together as mnrried persons at Montreal. Besides this, as has alre.ady been intimated, there is something more in this part of the case ; in addition to the evidence of cohabi- tation and repute both in the Indian country and in Lower Canada, wo have the express declarations of the late William Connolly himself, that he married Susanne according to the usages and customs of the country. The Honourable Mr. Justice Ayhvin, a witness produced by the defence, and intended no doubt to sustain effectually the pre- tensions of the Defendant, deposes " That his (Judge Aybyin^) " uncle Connolly told him that he Avas about thirteen yearsipl(Qn " the Indian country, and that it was difficult for him to control the get a a n " Indians in their trade with the whites ; that he had to " woman whom he would have to buy from her father ; that ho " had got a chief who had groat interest among the Indians, that " this man had sold the mother of the Plaintiff to the late William "• Connolly; when Plaintiff was born, he, the father, was only fourteen or fifteen years of ago, and his Indian wife (sic) woman was about twelve years of age. " The late William Connolly's Indian wife (sic) woman, was " the daughter of a chief of what nation I do not know. The late " William Connolly said that he had bought the said woman, that " after the purchase he had difficulty with the father in his trade, " and upon the strength of it had boon obliged to use violence to " the father. After treating him well he had become tractable."" It does not api)ear that Mr. Connolly told his nephew. Judge Aylwin, whether he had purchased the Cree woman as a slave, as 40 a coucubino, or as a wife. Hut the Court will give his memory the benefit of the doubt ; and as slavery did not exist in the North West, and as eoncubinaj^e is illicit, and the purciiasing a young woman for that purpose is infamous, the Court will assume that Mr. Connolly purchased the Cree maiden from the Indian Chief her father, intending to make her his wife according to the custom of the country, and not as a slave or concubine ; and there is no difficulty in this presumption, seeing that he lived with her and acknowledged her as his wife, during a period of nearly thirty years after this purchase. When Mr. Connolly was desirous of having his two daughters baptised at St. Eustache, in 1831, he went to the Rev. Mr. Turcotte, the priest of the parish, and requested him to perform that duty for him. Mr. Turcotte hesitated about baptising the young ladies as the legitimate offspring of William Connolly and the Indian woman. He says he had very serious doubts about the precioo character of this connection ; he asked a great num- ber of questions in regard to the Indian custom of marriage, and whether he, Mr. Connolly, had married Mrs. Connolly according to that usage. From Mr. Turcotte's evidence, Connolly seems to have been very earnest and impressive ; for the occasion was rather a serious one, and there could be no compromise, evasion or smoothing matters over, with the priest, who received the assurance from Mr. Connolly, that he had married Mrs. Connolly according to the Indian custom ; that she was his lawful wife, and that he had always respected her too much to take another woman, and thereupon the priest baptised the children as the offspring of William Connolly and Susanne, a squaw. I shall refer to the latter part of his evidence hereafter. The witness Annance says, Connolly told him " several times " what the Indian woman was his wife and the mother of his " children, and that he had been married to her according to the " custom of the country, that at the time of their marriage he was " seventeen and she was fifteen," and it is worthy of remark that if they were married in 1803, the evidence of record shows that Connolly stated his age correctly to Annance, and erroneously to Judge Aylwin ; for he was then seventeen years of age, not fifteen as he told his nephew. The same statement in regard to his marriage was made to other witnesses ; and he seemed always •particidarly desirous of impressing upon those he associated with, that the Indian woman was his wife. Whatever may be thought generally of evidence by the admission of parties, no objection to that description of proof can he urged in the present case ; these admissions were repeatedly and solemnly made, and on one occasion m, ) r.. I ■ii?*: 50 of i^roat delicacy and 'mtorost to Mr. ('oimolly. This evidence is moreover conclusively corroborated l>y other testimony of record. The cross-examination of these witnesses elicited nothing which materially, if at all, affects this testimony. On the part of the Defendant no less than fourteen witnesses have been examined. Two of them, Marie Bourgeois and Mario Poulin, are nieces of the late Mrs. Connolly (Woolrich), aiid Judge Aylwin, who is hernephew. All these witnesses will have a share '-^ Connolly's estate, provided the present heir dies without chile' Another, Elizabeth Woolrich, is the second Mrs. Connolly's sister. Of course all these persons state with a peculiar emphasis that the Indian woman was Connolly's concubine ; that all thd off- spring are illegitimate ; and that the Indian family recognized Mrs. Connolly (Woolrich) as the lawful wife of their relative. This was natural, and was to bo expected : but the tone of their evidence is somewhat remarkable, and in any view of it, is not very material, except that of Judge Aylwm, who has stated facts of great importance in this case, as has been seen already, and as will be seen hereafler. Mrs. MacDougall says she knew Mr. Connolly and Julia Wool- rich well — " her (Mrs. McD's) brother was a Northwester and " very intimate with Mr. Connolly ; he and others blamed him for " bringing the Indian woman here at all, and pitied her. Mv " brother pitied the Indian woman because he brought her down. She says the second Mrs. Connolly passed as Connolly's legitimate wife, and the children of the Indian woman as illegiti- mate. The evidence of Elizabeth Woolrich, the sister, who may hereafter share in the estate, (as she says), is very strong in language and in expression of opinion. If the Court were obliged to adopt her testimony, or if it regarded it even as of much importance, the case would be easily disposed of It is quite natural that she should entertain very decided *?ws in a case like the present. Her testimony, however, amoi o v«ry little, in my opinion, and can have no material effect upon tne case. The evidence of the other witnesses, with the exception of Mr. Hopkins, Mr. Boucher, and Mr. Larocque, is immaterial. I have already had occasion to refer to Larocque's deposition. He is the principal witness for the defence, and it is proper I should give the whole of his evidence. It is very pertinent, and exhibits a state of things in the North- West Territory in some respects remarkable. As he depicts it, there is great room for judicious and perhaps extensive reforms. He was examined at Ottawa City and says : *' I do not know the Plaintiff except by repute. I was well " acquainted with the late Julia Woolrich, but do not know the 61 " other parties in the cause. \ was well acquainted with the " late William Connolly, the one who married Julia Woolrieli. I " went up to the North-Wewt with him in iHOl. We l»oth went " up as clerks in the North- West Company. 1 was in the service " of this Company until it was amaly;amated with the Hudson's " Bay Company, and remained in the service of tlie latter " Company until 1880. I was partner in the North-West " Company, and shareholder in the Hudson's I3ay Company. I " was present at the marria^ijo of Julia Woolrich and William " Connolly. I was intimately accfuainted with the sciuaw woman " that William Connolly brou<;ht down with him. Jie was never " reputed to be married to thin Indian woman^ but I do not " know that if he had not fallen in with Miss Woolrich that ho " would not have married her. He wan fond of hin children " &nd the Indian woman. This Indian know very well at the *' time that ho married Julia Woolrich. I had conversation with " the Indian woman about the marria;[;o. She laughed and " talked about it, and said that she^ Julia Woolrich, had only *' got her leavings. She was a Cree woman I believe. I imdcr- " stand and speak the language well. I had occasion to see her " often at this time, and had frequent conversations with her " about William Connolly's marriage with Julia Woolrich. She " did not seem to care much about it. She lodged at that time " at Pion's, in Montreal. I was not much surprised at her not " caring. She had some hopes that Connolly would have married " her ; and I think if he had not fallen in with Julia Woolrich " that he would have married her. Bnt she seemed not surprised " at his marrying a white woman. But among other things she " said ' he will regret it bye and bye.' It was very common to " change women in the Indian country. The French Canadians *' in the North-A'^est Company's employ and the English did it " too." " This practice was common amongst the natives also. There " was no ceremony in those days about taking a woman or leaving " her either. The women themselves did not care about it. " They did not care for their husbands, but they were very fond " of their children. " I saw Connolly in the interim a few times, and heard of him " often enough. According to reputation he was not married. " That is, he was married according to the custom of the country " there, — that is taking a woman and sending her off when he " pleased. When I say the custom of the country, I mean that " the people did that as a common practice in those days. There " was not a legal binding marriage, there could not be in those " davs. (( u n a u a (4 li ii (( U u u u (( it (( (( (( u u (( u (( ii ii ii (( u a ii 62 " Some of the servants of the coiipany brought wives or women with them to Canada and marrwd them there according to the legal fonns of Canada. On' me contrary, some lived with won'jn in the interior and did not marv^.thcm, and abandoned them; and others lived with them, arid abandoned them to marrj white women in the civilized world. One Mcintosh, I believe, but I am npt sure, '''that he remarried when he came with her to Canada. " John McGilvrxk^ lived wifR an Indiairf woman in the interior, but he did not marry her. He married a Scotch woman, I do not know where. , , " Allan McDon)jell broughj^liis Indian wife down with him to Canada, and, I think, got miarried to her. tknew old Hughe^ and his Indian wife who came to Canada. / do not think he remarried when he came to Canada. They lived togethei^in Canada for some time. I believe there are other instances, but I do not recollect them at present. There were but few of the servants of the Coiuj^jiny who did not ta^e women when in the interior and live with them. But there \jrere very ^ew who brought them into civilized society and married them. The Cree Indians, like all the rest of the tribes, were wild and savage, but not more sojbhan the other tribes. " At the time I conversed with the Indian woman in question she admitted that she was hot married to Mr. Connolly. It was from her that I understood that she had hoped that he would marry her, on account of his children, of whoih he was very fond. I recollect one John George Mcintosh, who had several women in the Indian country, all fine girls, most of them half-breeds. He changed from one to the other, and had children by most of them. He afterward? married a Scotch woman. Sir George Simpson had plenty of women everywhere in the interior, whom he lived with whSp he went to the different places where they lived. The practice was so very common that it was not thought strange. It was about the time of Mr. Connolly's marriage with Julia Woolrich that I had frequent conversations with his squaw." Cross-examined. A/ Question. — Was Wm. Connolly married to the Indian woman referred to according to the customs of the country ? Answer. — He took a tvoman according to the custom of the country. You may call it marriage if you please. It was the only kind of marriane that could be there, — that is^ take a woman when you please and leave her when you plea»i;. 53 Question. — What do you mean by a legal marriage ? Answer, — I mean by a priest or a minister. Thpre were no priests or ministers in the North- West country, where Mr. Connolly resided, when he took this Indian woman. He could not be married in any other way than; he was, except that he might have married before witnesses. I cannot say when ministers or clergy^ien came to the Red River. I do not -know anything about it. Question. — How long did Mr. Connolly live with his Indian wife ? Ansiver. — He took her when he first went uj) to Rat River, about 1803, and kept her always until he went down to Montreal. He had a good many children by her. He lived with her over twenty years. I never heard that he lived with any other woman, although he might have. The marriage of William Connolly to Julia Woolrich was not over pleasing to the Indian woman. She might J^vg^scolded about, it, She did scold a good deal about it, and she felt annoyed, au^_±aid he would regret it. The Cree women were true to their fancy through fear. Question. — Were the Cree women, married as this Indian woman was to Mr. Connolly, generally true to their husbands ? — Answer — They were so when they were fond of them, and when they were not fond of them they were not. Question i — What year did you have conversations with Mr. Connolly's Indian wife, about his marriage to Julia Woolrich ? — Answer — About the time they w^ere married, I do not recollect the year. I never saw Mr. Connolly visit the Indian woman at Pion's, he might have done so but I do not know. Question. — When you refer to its being common to change women in the Indian country, was not this practice confined to the " voyageurs" and understrappers of the Company ? — Answer — Yes, generally so. Question. — How did a chief clerk, factor, partner or bourgeois, take an Indian wife in the North West country ? — Answer — He took her by the consent of her parents and relations. There was no other ceremony than the giving of a few presents. The man then lived with her as long as he or she liked. Question. — When did you travel with Mr. Connolly or see him in the interior ? — Answer — I cannot say what years, but I saw him at various times, and travelled with him for weeks in canoes. There could not be any legal marriage by priest or clergyman in those days in the interior, because there was no priest or clergy- man there. , I cannot say positively that Mr. Mcintosh remarried his Indian wife, as I don't know anything at all about it. I do x 54 not know whether John McGilvray brought his Indian wife to Canada or not. I don't know that John McGilvray married a Scotch woman ; I only heard so, that is I heard that he married Miss McDonald, a daughter of Miles McDonald in Upper Canada. I do not know whether Allan McDonald remarried his Indian wife after he came to Canada with her, or not, but I think he did. The case of Hughes is the only one amongst gentlemen, I remem- ber, who lived with his Indian wife in Canada without remarrying her according to the form practised in Canada. Question. — Were you a partner in the North West and Hud- son's Bay Companies ? — Ansiver — I had shares in both Compa- nies, I was a partner in the North West Co., and also a share- holder in the Hudson's Bay Co. Question. — When Mr. Connolly's Indian wife admitted to you that she was not married to Mr. Connolly, did she not mean accord- ing to the custom of Canada, that is to say by a priest or clergy- man ? — Answer — Yes, I believe so, there was neither priest nor clergyman there. That question she could not answer, because she did not know anything about it. In a legal sense she did not understand what marriage meant, she expected that Mr. Connolly mi(/ht have kept her as they do in the Indian country. She had always been living with him up to that time as far as I know. Question. — Mention how long John George McTavish lived with one of the girls referred to and where ? — Answer — He took Yacko Tinneys, she was a half-breed in the Rocky Mountains Spokane House, and lived with her about nine months. After which he took a daughter of McKenzie, on the Columbia River somewhere, he remained with her about the same time. I saw him afterwards in Montreal with a Scotch woman I heard he was married to. Sir George Simpson found women provided for him by pimps at the posts as he went along, he would keep them for some time and then give them to some clerk and promote him. The late William Connolly must have had by his Indian woman, six or more children. Mr. Connolly never had hut one Indian wife to my knowledge. A common man could not take a woman without the permission of the Company. Question. — Did you ever hear the Indian woman called Mrs. Connolly ? — Answer — Yes, I heard her called so by all the engaged men of the Company, they did so out of politeness. Any clerk having a woman the men called her Madame. I never heard of any of the men keeping two women at a time, it was not customary. A man could only have one wife at a time. The husband was obliged to clothe her, and as to living, she was obliged to live on the fare of the country, fish or flesh. I never 55 heard that the Indian woman lived with any body else but Wm, Connolly, and do not think that she did." As before stated, the Court has considered it right to give the whole of this man's deposition, in the first place, because his testimony is very peculiar, and because he is the principal witness for the Defendant, in regard to the state of society in the North West. There are some incoherencies and many contradictions in his evidence. In one place he says Susanne did not seem to feel the repudiation and second marriage very much, and afterwards, he says, she scolded very much and was annoyed about it. The account given of the morals of the traders clearly proves that great licence and disorder prevail in those countries. The Court will not and cannot believe the picture here given to be true. But if it were intended to show how little law or morality is to be found in the Hudson's Bay country ; how impossible it was for men to consider themselves under the mori.1 restraints of marriage, in a country where debauchery and lawlessness were so prevalent, there can be no doubt that object has been successfully attained ; but perhaps it is to be regretted that some portions of this evidence should have been introduced into the record. It is worthy of remark, however, that Mr. Connolly did not belong to the class of persons more particularly referred to here. He was free from the vices and licentiousness of those who surrounded him ; and it was creditable to him and his Indian wife that in a country, such as that described by the witness Larocque, their conjugal relations were marked by fidelity and devotion to the duties which that relation imposes. Upon the strength of all this evidence, it was strenuously contended by Mr. Stephens that the Court had proof of the Indian custom, and what that custom was ; that we had cohabitation and repute during twenty eight years, and the birth and bringing up of a numerous family ; that this repute and cohabitation , and the paternal care and education of the children, were known and conspicuous not only in the North West Country, but also in Lower Canada. That there was, moreover, Connolly's express declaration that he had married this woman according to the native and Indian custom or usage, and his delib< rate stateratnit that she was his lawful wife, and that as suob, he respected her too much to take another woman. Tht anied Counsel then proceeded to show, with great cogency oi argument and the citatiJiu .arents ; that it was sufficient, even under the conmion law of England, ;».nd that it was legal, complete, and unanswerable, u this case. 56 The Defendant, however, has recorded her objections to all this evidence, and it was contended at the argument, that this attempt to prove a marriage by oral testimony was contrary to law, and directly against the provisions of our statute. (Chapter 20, Con. Statutes of Lower Canada.) This Act does not apply to marriages solemnized without and beyond the limits of this Province. It could have no applica- tion whatever to such marriages, and there is no rule of evidence better known, longer recognized and more enforced than this ; " That where there are no registers kept, no public records of marriages in existence, a marriage may be proved by parole testi- mony ; by witnesses who were present, or by the declarations of the parents." It is also held that where registers have been lost or destroyed by fire, war, or other causes, parole testimony of marriage will be admitted. Lord Stowell and the best text writers have repeatedly stated the law to be as stated by the Plaintiff's Counsel, and as a matter of fact and constant and universal practice, such is undeniably the law. It is too elementary to be disputed — too well known to require the citation of authorities to support it, though some will be mentioned hereafter, in order that even upon this point there may be no doubt or misapprehension. But admitting its legality, the main difficulty consists in this : does all this testimony amount to proof of a marriage which this Court is bound to recognize as valid ? This brings me to the consideration of the law which defines what marriage is, and what testimony will constitute proof of its existence. It will be borne in mind that at Riviere mix Mats, in 1803, there were no priests, no ministers, no magistrates, no registers ; that the decrees of the Council of Trent had not been promulgated there ; that neither the ordinances nor the declarations of the French kings, nor the English marriage acts were in force in that distant and barbarous region ; that if, besides and in addition to the Indian usage or custom, any European law obtained there, that law was the common law of England ; that there has been adduced and placed of record in this cause, indisputable evidence that Mr. and Mrs. Connolly cohabited as husband and wife during a period of twenty-eight years ; that the Plaintiff was born of that union, and that William Connolly, by repeated and solemn declarations, stated and admitted, that the Indian woman was his lawful wife. To this may be added the fact, also proved and of record, that this woman declared to sf'veral witnesse'S, that she had been married to Connolly according to the law and custom of her nation. Before the citation of authority it may be proper to refer to the testimony of two Reverend Gentlemen, Mr. Turcotte and 67 Mr. Aubert, Priests of the Roman Catholic Church, witnesses for the Plaintiff, and the Rev. Mr. Boucher also a Priest of the same Church, examined on behalf of the Defendant. It is unnecessary to say that the Court could not in a matter of this kind be governed by their opinions, yet their evidence is a part of the record and it is not without importance. Mr. Aubert says, in cross-examination : Quand je dis qu'on savait (jue la dite Susanne avait 6t6 mariee au dit William Connolly, je le sais d'abord par I'opinion publique, et parce qu'elle meme me Ta dit, et (ju'elle me I'a dit en me racontant le fait. Question. — Quelle sorte de manage est-ce ? — Bfponse — Celui qui ^tait en usage alors pour tout le monde. Question. — Est-ce un mariage ou reconnu par I'eglise ou par les lois civiles en aucun cas que vous pouvez rapporter ? — It^ponse — Pour la Idgitimit^ du mariage on le considere comme valide, dds qu'on se conforme aux usages adrais dans le pays oii Ton se marie. Je n'ai pas eu occasion d'examiner cette question sous le rapport civil. Question. — Savez-vous que bien souvent les chefs ont plusieurs femmes? — RSponse — Pour les chefs natifs nds Sauvages, c'est vrai, mais pour les blancs, je n'ai jamais connu de bourgeois de la compagnie en avoir plus qu'une. Question. — En cas qu'un chef natif se transportat dans un pays civilisd, et ayant quatre ou G\m\ femmes Sauvages prises suivant I'usage du pays sauvage, est-ce que toutes ces femmes seront legitimes, soit aux yeux de I'eglise ou de la loi ? — RSponae — La premidre seule sera legitime, et toutes les autres ne seront pas consid^r^es comme des femmes legitimes. Question. — Par quelle loi ou r^gle ^crite ou comment autre- ment ^tablie, sera faite une telle distinction entre les femmes d'un chef Sauvage, pour l^gitimer Tune d'entr'elles, et rejeter les autres? — RSponse — Selon les lois eccl^siastiques ; elles se trouvent dans le droit canon ; pour les lois civiles je n'en sais nen. Question. — Pouvez-vous citer une loi ou le texte de loi dans le droit canon h, I'appui de ce que vous dites ? — R^ponse — C'est dans le traits du mariage. Si j'avais su q.e vous me deman- dassiez le chapitre, j'aurais emport^ le livre. Question. — Savez-vous si le mariage, selon la coutume sauvage, porte des consequences diff^rentes, et met la femme dans une position tres-differente, du cas d'un mariage dans un pays civilis^ ? — Reponse — ^a ne dit rien ; ^a dt'pend des moeurs, des usages, des pfiys, quant au traitement des femmes et aux droits. 58 Question. — Selun votie oimiion, je deinaiule si par Ics lois sauvages la derniSre femmo aura une prdfdrencc sur les autres. Estrce (jue la rtigle sora renvers<5e par le transport du domicile dans un pays civilise? ? — lleponse — Si les Sauvages restent infid^les, I'^glise n'a pas v\ s'occuper de leur conduite ; mais s'il veut rentrer dans Teglisc, lYglise I'obligo c\ reprendre la premiere fcmrae, parce (ju'elle la considero comme la sculo l(5gitime, j\ moins qu'elle no veuille pas se faire chr^tienne. QueHtion. — Au cas qu'un homme et une femme se marient Solon la coutume sauvage, s'ils veulent devenir chr^itiens, est-ce (ju'ils n'ont pas d'autres devoirs k faire ; on est-ce qu'ils doivent so faire remariei par un curd ? — Reponse — Non, parce qu'ils sont ddjt\ mari(is. Question. — Dans I'^jglise catholique, n'est-co pas que le mariage est un sacrement, et que c'est un devoir de recevoir la bdnddiction nuptiale ? — R^ponse — Oui, le mariage est considdrC) comme un sacrement, mais la presence du curd comme tdmoin ndcessaire est re(|uis pour valider les manages \k ou le ddcret du concile de Trente a dtd publid, man on il rCapas St^ puhli6^ le» parties peuvent contra eter mariage validement sans la presence du cure d'apres les lois de V^glise. Le seid fait que les Spoux se prennent dans Vintention de se marier est assez, sans Vimpo- sition d'aucune c/^r6monie. The Rev. Mr. Turcotte, after having spoken of the marriage of Mr. Connolly and Susanne, says in cross-examination : — " D'apres mon opinion ce mariage dtait valable selon les " regies de I'Eglise Catholique Romaine, c'est-^ire qu'en " principe, c'est le consentement mutuel qui fait le mariage. Si les parties sont des catholiques romains, I'dglise reconnaitra une telle union, si le fondle de Trent n^etait pas public Id.^^ The Rev. Mr. Boucher, a witness for the defence, was the confessor of the late William Connolly ,^-he had baptized one of his children by Julia Woolrich. He was an intimate friend of the second family. He had been for eight years a missionary at Red River, and knew the customs of that part of the country well. Speaking of polygamy among the natives, he knew of no case of a European having two women at a time. Concubinage is the prevailing vice in the North West ; thinks Mr. Connolly was not married to Susanne, and when asked if he was not aware of the existence of such a marriage according to the custom of the countiy, he answers: — " Je ne coimais pas de coutume autorisant le dit mariage, no " pouvant autoriser comme coutume ce (jui est une action " ddfendue de Dieu et de I'Eglise. Je regarde comme crime " une liaison semblable." (( il 59 lie says that such a connection as that between Connolly and Susanna was concubinage — not marriage. This gentleninn also states that the Plaintiff, and all Connolly's children by the Indian woman, passed for illegitimate. According to what is stated by these witnesses, though in some degree conflicting, I am inclined to think that if this marriage took place according to the usages of the natives, it would l)e regarded as valid by the Roman Catholic Church. I have referred to their testimony to show the opinion of Churchmen on this point. It will bo re- marked however that Mr. Boucher docs not reason much upon the matter, but expresses simply his private opinion, and takes merely a moral or religious view of this kind of marriage. Among the authorities cited by Mr. Stephens, one of the Plaintiff's Counsel, are the following : *' Le mariage, c'est I'union ou la socidt(3 legitime do Thomme *' et de la femme qui s'unissent pour perpdtuer leur espece." — Toullier, Vol. 1, No. 489. " La loi ne consid^re le mariage que comme un contrat civil." — ToulUer, No. 494, Vol. 1. " By the law of nature, by the canon law, previous to the " Council of Trent md by the law of England as it stood " before the passage of the first marriage act. — (A. D. 1753), " and by the law of Scotland and France, nothing need be added " to this simple consent to constitute a perfect marriage." — Bishop on marriage. Vol. 1, page 219, Section 218 ; and see cases cited in notes. " In most of the tribes, perhaps in all, the understanding is " that the husband may dissolve the contract at pleasure. It is " plain that among the savage tribes on this continent, marriage " is merely a natural contract, and that neither law, custom, \^ " religion, has affixed to it any conditions or limitations or forms, " other than what nature has itself prescribed." — Bishop on marriage, Vol. 1, No. 223. " In a state of nature, says Lord Stowell,the contract of present " marriage alone, without form or ceremony superadded, consti- " tutes of itself complete marriage." — Lindo vs. Belisario, 1 Hagg. Con. 216, 280 ; 4 Eng. Ec. 367, 374 ; Bishop Vol. 1, No. 19. " If practically a man and woman recognize each other as in " substance husband and wife, though they attempt to restrict " the operation of the law upon their relation, the law should " hold them — public policy requires this, the peace of the com- " munity recpiires it — the good order of society demands it — to " be married persons, unless some statute has rendered the '" observance of some form of marriage necessary." — Bishop, Vol. 1, No. 227. 60 " Whenever inarria<5o in governed by no statute, consent consti- " tutes marriage, and that consent is shown by their living " together." Bishop, Vol. 1, Nos. 229 and 230. " But whenever tlie matter is not governed by any doctrine " there to be mentioned, no particular form for expressing the " consent is necessary, nothing more is needed than that in " language which is mutually understood, or in any mode decla- " ratory of intention, the parties accept of each other as husband " and wife." — 1 Frascr Dom Uel, 145 ; Bishop marriage, Vol. 1, No. 229; " Quant aux enfants niis do cos mariages putatifs, ils sent " li-i4^'j^.w 61 tliat a marriage, good by the uv loci^ is valid every where, docs not apply — that no Christian Court of Justice can recog- nize and give validity to a marriage solenniized according to such a usage or custom, and consecjuently, upon the Plaintiff's own view of international law, I am hound to adjudge and declare this pretended marriage vo'd. This is certainly a very strange pretention ; and I confess my inability, after much research, to find any authority of sufficient weight to countenance such a proposition. Let us encjuire now what is the law as laid down on this point, and ascertain if the decisions or the text writers of authority, so far as I have l)cen able to examine them, have made such a distinction. By what law is the validity of a marriage to be decided ? " As to the constitution of the marriage, as it is merely a perso- " nal consensual contract, it must be valid everywhere, if cele- " brated according to the lex loci.'' — No. 110 Story Conflict of Laws, pages 203-205 ; No. 80 Story Conflict of Laws, Ed. '57, pages 110-218. " Validity of marriage depends upon the lex lod of place of " solemnization." — Latour vs. Teesdale, 8 Taunton, 830. Lacon V8. Higgins, 3 Starkie, 178 and 183. " The general principle certainly is, that between persons mi " juris^ marriage is to be decided by the law of the place where " it is celebrated. If valid there, it is valid everywhere." — Story Conflict of Laws, Ed. '57, page 218, sec. 118 ; Id., pages 220-223. Dalrymple vb. Dalrymple, 2 HaggCon. R., 54i Lacon vs. Higgins, 3 Starkie 183. Kent vs. Burgess, 11 Sim 361. Merlin Rep. Vo. Marriage, sec. 1, page 343. Pardessus, vol. 5, page 6, tit. 7, cap. 2, art. 1481 to 1405. Pothitor, Marriage, No. 263; Catherwood vs. Caslon, 13 M. & W. 261, Connolly vs. Connolly, 7 Moore 438 ; Broom's Legal Maxims, Ed. of 1858, page 461 ; BouUenois Obseiv. 46, p. 458, &c., &c., &c. " With respect to marriages contracted in a foreign country, " they are considered as valid by our law, if made in such form " as is deemed sufficient m the place where contracted." — Rex vs. Brampton, 10 East, 282. Latour vs. Teesdale, 2 Marsh, 243. Doe vs. Vardill, 5 Barn & Cress, 438. " Ainsi les enfants qu'vine femme sauvage aurait eus d'un " sauvage dans un pays oii il n'y aurait point de lois ^tablies, " seraient regard<3S comme legitimes, meme parmi nous, quand " mSme le pere et la mere n'auraient suivi d'autres lois que celles " qu'ils se seraient impos^es ; de meme, ceux de deux ^poux, " Anglais ou Chinois, qui auraient accompli les lois de I'empire " de Chine ou du Royaune de I'Angleterre." — Merlin, Marriage, sec. 2, § 1. I ii^i- ,r H2 ii u u Tjoi'd Stowell, in dccidin;^ on the validity of a marriage cele- luiitcd in (Scotland, says, " that the only principle applicable to " such a cusf by the law of England is, that the validity of the " marriage rights must bo tiicd by reference to the law of the country where, if they exist at all, they had their origin. Having furnished this principle, the law of England withdraws altogether and leaves the legal (juestion to the exclusive judg- " ment of the law of Scotland." — Dalrymple vs. Dalrymple, 2 llagg. Cons. Reports, 51), " It is, therefore," adds Lord Stowell, " to be advised, that " the safest course is always to be married according to the law " of the country, for then no question can be stirre.d ; but if this " cannot be done on account of legal or religious difficulties, the " law of England docs not say its subjects shall not marry " abroad." — lluden vs. Smith, 2 llagg. Cons. Reps., J371. And again, tho case Grimshire vs. Grimshire. The same high authority insists with great force upon the ob- servance of this stringent and universal rule of the jus gentium. He says : " Why may not this Court then take notice of foreign laws, there being nothing illegal in doing it ? From the doctrine laid down in our books — the practice of nations — and the mischief and confusion that would arise to the subjects of every country from a contrary doctrine, I may infer that it is the consent of " all nations, that it is the jus gentium., that the solemnities of " the different nations with respect to marriages should be " observed, and that contracts of this kind are to be determined " by the laws of the country where they are made. If that prin- ciple is not to govern such cases, what is to be the rule where one party is domiciled and the other not ? The jus gentium is the law of every country, and is obligatory on the subjects of every country. Every country takes notice of it ; and this Court, observing that law in determining upon this case, can- ' not be said to determine English rights by the laws of France^ but by the law of England^ of which the jus gentium is part. All nations allow marriage contracts ; they are '''■juris gen- tiuMj'^ and the subjects of all nations are equally concerned in " them ; and from the infinite mischief and confusion that must " necessarily arise to. the subjects of all nations, with respect to " legitimacy, successions, and other rights, if the respective laws " of different countries were only to be observed, as to marriages " contracted by the subjects of those countries abroad ; all " nations have consented, or must be presumsd to consent, for " the common benefit and advantage, that such marriages should " be good or not, according to the laws of the country where they u (( (( i( u ii 4C u il ii a a 68 a are made. It is of equal eonscMiuoncc to all that one luk- in these eases should he ohsoived hy all nations— that is, the law " where the conUaet is made. By ohservin;^ this law, no hicon- " veniencc can arise ; hut infinite mischief will ensue if it is not." And here it may bo proper that I should refer more particu- larly than I have heretofore done, to one noticihle incident in these Indian marria;^e8, and that is poly^^amy. It was contended that this imparts to this connection its infidel character, and render it unworthy of recognition as a legal marriage by this Court, and excludes it from the operation of the j^oneral rules 80 clearly enumerated and laid down in the authorities which I have just cited. But it is obvious, and must be conceded at once, that this is an incidental, not an essential element, in the law or custom of marriage known among these aboriginal tribes. It is an abuse, but not a condition of or an essential ingredient in these barbarian rites and obligations of matrimony. If proved at all in this case, it is manifestly established as the exception, not the rule ; and in regard to marriages between Christians and the natives, it is iiot proved to he the eustom. It may have occurred in the case of some profligate men possessed of great power and authority in the Indian country, but as a general rule it was not known or practiced even among the natives. Mr. Connolly was not among those who sanctioned or connived at such an abuse of those sacred obligations which bound him so long and with so much fidelity to his Indian Avife. The fact is, I have nothing to do with polygamy in this case. It does not in any way come up for my consideration, except in so far as it is an infi- del and unchristain abuse of a foreign law, occurring in isolated cases, and which I am not bound to adjudicate upon, and whicli it is no part of my duty to recognize or sanction in the slightest degree, or in any way whatever. And heve 1 may remark that although polygamy was allowed among the Jews, as a general rule they were content with one wife. Diodorus also informs us the Egyptians were not restricted to any number of wives, but that every one married as many as he choose, with the exception of the priesthood, who were by law confined to one consort. It does not, however, appear that they generally took advantage of this privilege ; and Herodotus affirms that throughout Egypt, it was customary to marry only one wife. It is easy to reconcile these statements,, by supposing that Diodorus speaks of a law which permitted polygamy, and Herodotus of the usual custom of the people ; and if the Egyptians were allowed to take more than one wife, we may conclude, from the numerous scenes illustrative of their domestic life, that it was an event of rare occurrence. f m :VJ;I TTT TT * V ,.:? ■•T O-.. <* A M «->v»» . **^ V y v» r r*-^ V' X ♦ X ^, ^c lo Jl P«jJ>J>^'H}[ !'^ ptjjrtlmtcUj'tojfcti \l»^ l^t ft is neither reputable VoibaS*. (trie >\Jftt^u«-to divorce nbr without very 00)50111 loii:^n u)i^H;lb!i)i reiisr)»h< ; JUKvtlii inijO^iii ireu, OA 110 objection cuh ho niiiclc wlibnMliore is 110 i'uinily, it is, required, evj^iu this edso, that her wishes, aiiH Uion^ (ij[ hot parents, Hhoul(N)e consulted ^lind many niarriage ooniraots stipulate that the ^il'e shall have no pftrtner in the harom. \ And although this- "48 law which Christianit^jr oxpresslv con- demns," yob I do not iMfiik I can go so ifar as t) say, tW its existence among the Crbes rendered Mr. Connoily*s n\{irriage ♦ith the Indian a nullity. KAVther>j»Mr. Cro^ft,^tho learned Counsel f(?r tho Defi^jidant, with, groat fJI'ce and plausibility,, has argued ^hat there are other radical defects in /this alleged marriage which, in his opinion, prwludeii the. Court from regarding' this union as legal matrimony. It was cowtonded by him that no formal contract of marriage, verbal or written, has boon pr^jjd ; that a custom which dj^ponsos with this as a basis of marriage^ ^lych tequires no witnesses, the int6Vvention of no civil or religious authority, which is accompanied, by' no solemn or suitable ceremonies, exacts the observance of no religious rites hx santtix)n8 whatever, and is a mere question of consent alone, is no mar^ago between a Christian and an infidel. It* must btj cojiceded that all this goes to the very heart of this case ; 4nd these %rgtiment8 have received the most anxious consideration of the Court. In deciding this point, I think I pij^y take it for granted, and it will be admitted at once, *hat the difference of religion or of race, the fact of one party being a Christiilfi and the other jfegan, cannot materially, if at all, affect the question. These parties were under the circumstances sui juris, %hd they could, even according to the Defendant'^iew of the case, hive been legally married by proper authority. I am not aware of any English law which prevents a British subject from marrying an infidel, or which would render his marriage with a ^agan illegm. Jf this be a marriage at all, it is- quite true that it was a marriage Avithout the intervention of any civil authority, and without any religious or ecclesiastical sanction. The Court^^as to deal with it as a matter of consent, an agreement to*be husband and wife, followed by concuhitus and 'long cohabitation, and general repute. I think I cannot do better than cite the Words of the 'great Lord Stowell, giving judgment in ^he Dalrymple case. — (2 Haggarct's Consistory Reports, vol. 2, 'page 62.)— He<^-says : " MaVriage, being a contract, is of course consensual (as is " much insisted on, I observe, by some of the 'learned advocates) " for it is of the essence of all contracts, to be-'constituted by the f5r) (( consent of parties. CouHt'imiiH non mnrnfufHH fan,' matrimn- ** w/wm, the maxim of Oic Roman civil law, i8, in truth, tlic maxim " of all law uj)on the Hubjcet ; for the eomnifntuH may take place, " for the more ^^ratification of present appetite, without a view to " any thing further ; hut a marriage must ho something more ; it " must he an agreement of the parties looking to the comortium " vital : an agreement indeed of parties capable of the (mwubituH, " for though the eonnthifm itself will not constitute marriage, " yet it is so far one of the essential duties, for which the parties *' stipulate, that the incapacity of either party to satisfy that " duty nullifies the contract. Marriage, in its origin, is a " contract of natural law ; it may exist between two individuals " of different sexes, although no third person existed in the " world, as happened in the case of the common ancestors of " mankind : It is the parent, not the child, of civil society, " * Prindpiwm urbis et quad scminarinvi lieipuhlioa'.^ In civil " society it becomes a civil contract, regidated and proscribed " by law, and endowed with civil consecpienccs. In most civili«ed " countries, acting under a sense of the force of sacred obliga- " tions, it has all the sanctions of religion super-added : It tlien " becomes a religious, as well as a natural, and civil contract ; " for it is a great mistake to suppone that, because it is the one, " therefore it may not likewise bo the otlior. Heaven itself is " made a party to the contract, and the consent of the indivi- " duals pledged to each other, is ratified and consecrated by a " vow to God. It was natural enough that such a contract " should, under the religious system which prevailed in Europe^ " fall under ecclesiastical notice and cognizance, with respect both to its theological . Toulher, liv. 1, Tit. III., No. 871. Civil Code, Art. lOn. And again "• There must be an intention to reside permanently." It would be easy to adduce pages of authority which would go to corroborate the doctrine here laid down, but the Court deems it unnecessary to do so. Ilie principle is well known and every where acknowledged, that the intention to remain permanently must be combined with the fact of residence. In some cases this intention may be presumed, but in this instance there is no room for presumption ; and if any presumption whatever covdd be invoked, it would be against the supposition that Connolly had abandoned his domicile of birth, with the intention of forming a new one in the North West territory. But we have positive evidence to show that he never had such intention, but entirely the contrary ; he intended to return so soon as he could get rid of the coimtry, and live happily in a civilized country. This, no doubt, was his intention, was always his intention, which he finally carried out; for he lived in Lower Canada eighteen years after his return and marriage to Miss Woolrich, and then died here. He had made his fortune, the object he had in view in going to the North West, and then returned. The a.^hnuii revcrtrndl is clearly and conclusively established hi this Ci,.de. But then it may be said, and has been urged in argument, that a residence of thirty years confers upon a man a domicile, particularly Avhere he has been married and brought up his family, and carried on and transacted also his chief business in the locality. It will be remembered that lapse of time does not alter the case, when there is a constant, a persistent, intention to return, and no intention to remain. Where the animus manendi is wanting, and it is beyond all (piestion as a matter of fact that where the matrimonial domicile of the wife is different from her husband, it does not cause him to lose his domicile of birth. No argument, no authority, is retpiired to prove such to be true as propositions of law. But conceding, for the sake oi taking a full and complete view of this matter, that Mr. Connolly, without any intention of remaining, but determined always to return to Canada, did ac([uire a new domicile hi the North- West territory, the next duty of the Court will be to deter- mine at what precise point iii that vast and wild region Mr. Con- nolly had his domicile. Was that domicile at Rat Kivcr, or Fort Chippewayan, at Great Slave Lake. Lesser Slave Lake, the Rocky 82 Mountains, Vancouver's Island, or the Mackenzie River ? was it at Rainy Lake, the Lake of the Woods, Fort Cumberland, York Factory, or Norway House ? v/as it at Isle h, la Crosse, Rat River, or Fort William ? He seems to have visited and to have resided v/ith his family at all or nearly all these places, and it is in evidence that he frequently came to Canada, and more particu- larly, he was present at the baptism of Plaintiff in 1813 and was at Montreal in 1814. Now in regard to these trading posts, it must be borne in mind that they were situated widely apart — in some cases more than a thousand miles distant, over impassible regions of wilderness. He was a fur trader, and in the prose- cution of his business, he went to and fro from trading post to trading post, up and down great rivers, over mountains, across prairies and lakes, and through forests where the European had no settled home, where neither the hand of man nor the arts of civilization had subdued the wilderness or reclaimed the barba- rian. The success of his trade itself depended upon barbarism upon the cunning and active co-operation of the native savages and the successful entrapping and slaughtering of the beasts of the for- ests. He Avas a dweller around the Indian hunting grounds, and a dealer in furs and skins. There were then no houses except within the forts, no villages, no colonies, no plantations, no civilized settle- ments, no political or municipal limits, circumscriptions, or institu- tions, in most of these places ; there were no Courts of law, and scarcely any law, except the will of the trader, and the native cus- toms and usages of the Indians. And there was a good reason for the absence of these, because, as before stated, the pecuniary success of both the Hudson's Bay and the North West Companies depend- ed upon retaining those vast regions in a state of barbarism, and they had the power to exclude all other traders and settlers, and consequently to prevent the introduction of every element of European civilization. Can the Court under these circumstances determine where Mr. Connolly's domicile was, in the North West ? It seems to me to be impossible. But I might, I think, go further, and say that under the circumstances to which I have just adverted, and situated as Mr. Connolly was, he could acquire no legal domicile at Rat River ; and in any case, I am clearly of opinion that whatever kind of domicile he may have acquired — for example, we may assume that his matrimonial domicile was there — yet, as a matter of fact, he did not lose hh original domicile, his domicile of birth ; and in support of this view of the law, it may be proper to refer to some additional authorities on this point, cited by Mr. Stephens. am 83 " It ought always to be remembered that the