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Les diagrammes suivants illustrent la m^thode. 1 2 3 1 2 3 4 5 6 TRIAL OF JOSEPH N. CARDINiL AND OTHERS. TO WHICH ABE ADDED, THE ARGUMENTATIVE PETITION IN FAVOUR 01 THE PRISONERS, AND SEVERAL OTHER PRECIOUS DOCUMENTS, tic. &c. &c. BY A STUDENT AT LAW. MONTREAL: JOHN LOVELL, PRINTER, ST. NICHOLAS ITMET. 1839. i RICE ;— HilLF A DOLIAK. 'I I f! ' 'll b ! .-.r. .«..:.-» FC T7C 3 / 6 i) 5 p. 1 ) ■•/•_,:;* TRIAL OF JOSEPH XARCISSE CARDINAL, AND OTHERS, \ Wednesday^ 2Qth November, 1838. (10 A. M.) Before a General Court Martial, convened on this day, at the Court House in the City of Mon- treal, in pursuance of an order and by virtue of a Warrant from His Excellency Sir Johx Col- JBOKNE, G. C.-B. and G. C. H. &c. &c. Present, the folloicing Members : Major General John Clitherow, President, Lieut. Col. Sir John R. Eustace, 2c? Bait. Grena- dier Guards. Lieut. Col. Henry W. Barnard, do, do, Lieut, Col. William Grierson, 15th Regiment. Lieut. Col. James Crawford, 2d Bait. Grenadier Guards, Major Samuel Diloian Pritchard, Major of Bri- gade, i ill It f Major Henry Townshend, 24th Regiment, Major Arthur W. Biggs, 7ih Hussars. > Captain Willianj Brudenell Smith, 15//t Regimcfit. Captain Robert Marsh, 24/A Regiment. Captain William Thornton, 2d Bait. Grenadier Guards. (/aptain Henry Alex. Kerr, 2d Batt, Royal Re- giment. Captain Augustus Cox, 2d Bait. Grenadier Guards. Captain the Hon. George Cadogan, do. do. Captain Hugh A. R. Mitchell, do. do. The Hon. Dominique Mondelet, Esq., Charles Dewey Day, Esq. and Captain Edward Mullei", 2d Battalion Royal Regiment, jointly and seve- rally Deputy Judge Advocates. Messrs. Pierre Moreau and Lewis Thomas Drummond are employed on behalf of the Pri- soners. John Godard, Esq. Advocate, is appointed Translator, and Mr. Francis Johnson, Student at LaWy performs the duty of Reporter. Serjeant John Wilson, 1st Royal Regiment^ Provost-Marshal, and two Orderly Serjeants. The following prisoners, twelve in number, arc brought to trial : — Joseph Narcisse Cardinal, Joseph Duquette, Joseph L'Ecuyer, Jean Louis Thibert, Jean Marie Thibert, Leon Ducharme, otherwise called Lean- dre Ducharme, Joseph Guimond, Louis Guerin dit Dusault, otherwise called Blanc Dusault, I 5 Edouard Therien, Antoine Cote, Fran9ois Mau- rice Lepaillcur and Louis Lesiege, otherwise called Jjouis Lesage dit Laviolette. The charges exhibited against them, are read by the Judge Advocate, in the following terms, to wit : — "Treason against oitr Sovereign Lady the Queen, between the first and seventh days of No- vember, in the second year of the reign of our said Lady the Queen. In this, that the said Joseph Narcisse Cardinal and others, being subjects of our said Lady the Queen, on the fourth day of November, in the second year of the reign of our said Lady the Queen, and on divers other days, as well before as after, in the said parish of Chateauguay, and also at Caughnawaga, commonly called Sault St. Louis, in the District and Province aforesaid, did meet, conspire, and agree amongst themselves, and together with divers others whose names are unknown, unlawfully and traitorously to subvert and destroy, and cause to be subverted and des- troyed, the Legislative Rule and Government now duly established in the said Province of Lower Canada, and to depose and cause to be deposed our said Lady the Queen, from the Royal State and Government of this Province, and did for that ])urpose then and there incite and assist in a Re- bellion in the said Province; and then and there being assembled and gathered together, and armed with guns, swords, spears, staves and other l^i f weapons, did in furtherance of the said RebeHiony traitorously prepare and levy public v/ar against our said Lady the Queen, and were then and there found in open arms against her Rule and Government in this Province, against the peace of our said Lady the Queen, her Crown and dig- nit}', and against the form of the Statute in such case made and provided." Before pleading to the charge, the prisoners submit to the Court the following Exceptions, which are read by the Judge Advocate, and overruled after a deliberation of about half an hour : — Province ^ The Queen, OF > vs. Lower Canada, y Joseph N. Cardinal & al. "The undersigned, who have been brought forward for the purpose, as they have been in- formed, of being tried upon a charge or charges of Treason, (respectfully reserving the right of objecting to the competence of the Tribunal as- sembled to try them ;) insisting that in their case, the ordinary Laws of the Province cannot be re- pealed, nor the ordinary tribunals suspended ; in- sisting also that the Legislature, under the autho- rity of which the present Court is constituted, has been expressly restrained by the Act of the Imperial Parliament of the 1st Victoria, cap. 9, from departing in an}^ way from the practice of administering the Criminal Law of England, as introduced into this Province, by the Act of the I imperial Parliament of the 14th Geo. 111. chap. 83, or any of the various Legislative expositions of that Statute, by different laws enacted since that period ; and contending that the offence or offences with which they stand charged, are cog- nizable only by a Jury of the country, and that by the mode of trial and the means resorted to, upon the present occasion, they might be deprived of all constitutional means of defence, in which are included the right of the accused to have a list of the Jury, to give him the benefit of the challenge ; the list of witnesses to enable him to detect con- spirac}' and to prevent perjury; a copy of the charge, at least ten days before the day oj trUil, to enable him to prepare himself for the awful day ; sufficient time to procure the assistance of a legal adviser, to speak for an unlearned man ; in fact, all the arms and means of protection, with which the humanity of the Laws of England fortify the prisoner; beg leave to ui^e upon the atten- tion of the Court, that according to the prac- tice of Courts constituted as the present, the ac- cused are entitled to the following safeguards : — 1st. The crime or offence must be set forth with certainty and precision, including time, place and circumstances; in all which the written accu- sation communicated to them, is defective. 2nd. The charge must be furnished in such time before the meeting of the Court, as that the ac- cused may have full opportunity for preparing their defence. In fact, an Act of the Imperial Ih 8 Parliament of the 3rd and 4th Anne, cap. 16, ha;* expressly provided that "persons tried by Courts ** Martial, shall have the benefit of the dct for re- " gulating trials in eases of Treason and mispri- " sion of Treason,^* thus securing to the party charged, an interval of at least ten days, between the service of notice of trial and his arraignment ; whereas the charges were only communicated to them on the 24th day of November instant, at a late hour in the evening, and their trial fixed for the 28th day of the same month, in contravention with the practice of Courts Martial on that point. 3rd. The accused are entitled to a list of the witnesses to be heard against them. Such has been withheld from the prisoners. 4th. They are entitled to a list of the persons ap- pointed to sit in Judgment upon them. No such list has been furnished to the prisoners. 5th. The accused are entitled to freedom of in- tercourse with their relatives, connexions and friends, whilst engaged in preparing for their trial. The relatives, connexions and friends of the pri- soners, have been and continue to be denied all access to them. They have been treated as criminals, whose guilt had been taken by anticipa- tion, and the restraints unjustly and illegally im- posed upon them, have impaired their means of defence. The prisoners accordingly claim the considera- tion of the Court to the matters submitted, and request that all proceedings may be deferred, un- til the benefits, which the practice of Courts Mar- tial constituted as the present and for the like purposes, secures to the parties accused, shall have been extended to them." Montreal, 28th November, 1838. (Signed,) Joseph N. Cardinal, &c. The prisoners having no objection to any mem- ber of the Court, severally plead J^ot GuUtij, and Captain MuUer then addresses the Court as follows, on the part of the prosecution : — May it please the Court, " The prisoners before the Court re charged with tlie crime of Treason, in having conspired to (Jepose Her Majesty from the Government of this Province, incited a Rebellion for that pur- pose, and, in furtherance of such Rebellion, hav- ing stirred up and levied a public war. The crime is in its character and consequences, the greatest which a man can possibly commit, and as it does not frec^uently come within the cognizance of a Court Martial, it may be advisable to submit to you a brief defmition of the distinct heads of the offence of High Treason, under which, it is conceived, the prisoners fall ; then, to call your attention to the specific acts to be proved, that thus you may be enabled to see how far these acts come up to the legal definition of the crime. The Law of Treason, then, in so far as its provi- sions are likely to be applicable to the case be- 10 fore the Court, declares that when a man doth compass or imagine the death of the King, or if a man levy war against the King in this realm, he shall be adjudged guilty of Treason : but in order to bring him within the operation of the Law, he must be convicted of open deed, or overt act, clearly amounting in its indication and character, to a compassing of the King's death, or levying of war against him. As to what overt acts, or in more familiar language, what conduct on the part of the accused, will bring them within these bran- ches of the offence, we have a precise and suffi- cient guide ; for on reference to the best authori- ties on the subject, we find a variety of overt acts specified, among w hich we select as useful to our present purpose : 1 st. The deposing or tak- ing possession of the King or Government, or preparing to do it. 2d, The direct levying, and consulting to levy war. 3d. Joining with Rebels in any act of Rebellion. 4th. Giving assistance or intelligence to Rebels. 5th. (yonstructive le- V3ing war by insurrection to reform supposed national grievances. If any of these acts be brought home to the accused by the evidence of two witnesses, the Court will be called upon, in the conscientious discharge of its stern and im- portant duty, to declare them guilty of High Treason. Now the facts which will be proved against the prisoners, are briefly these : — that they, with a lar^e body of armed men, were* assembled at 11 Chateauguay on the fourth of this month ; that they took a number of prisoners whom they kept confined ; that there existed among them degrees of command and other features of organization, which characterize a regular army ; that they avowed an intention to subvert the Government of Her Majesty, and to establish a Republic in its place ; that they proceeded from Chateauguay to Caughnawaga, and there demanded the arms of the Indians, with the intention above avowed ; and generally that they, with those by whom they were accompanied, were in intelligence and con- cert with Rebels in other parts of the Province, and were engaged in acts of open warfare and Re- bellion against Her Majesty's Government here. It may be added that the men selected for trial to- day, appear to have held stations of command, and to have exercised great influence among their companions. With this explanation, and these facts fully proved, the Court, it is presumed, can have little difficulty in forming an opinion upon the guilt or innocence of the unfortunate men now before it." The first Witness on behalf of the Crown, is called over and examined as follows : — John Lewis Grant. — Resides at Lachine. Knows the prisoners Cardinal, Duquette, Du- charme, Lepailleur and Jean Marie Thibert, the last of whom he, the witness, took himself. On Sa- turday, 3d November, embarked on board the staamer at Lachine, on his way to Mr. John H I 12 M 'Donald's at Chateauguay. When arrived at Mrs. Duquette's, of Chateauguay, inn-keeper, Duquette, at the head of about twenty or thirty armed men, put his hand on his (witness's) shoul- der and made him a prisoner. Duquette was a Chief; his mother said so in his (witness's) pre- sence. Believes he was not armed, when he took him. Asked what all this meant, and ^vsiS told by Duquette, not to be uneasy ; that in two or three days a body of Americans was coming in, and that he^ (witness,) would be as free and in- dependant as themselves. Duquette added he was unwilling to do him any harm. Was taken into a bedroom, where he saw Lepailleur, New- combe, Desmarais, and several other persons, armed with guns and pikes. Saw no other of the prisoners there ; was searched and a pair of pistols taken from him ; a guard was placed over him by order of Duquette, and orders given that he should be treated kindly. In the night. Cardinal came to the house and removed him to his, (C.'s) office, where the witness found J. McDonald a prisoner ; was escorted by a band of armed men, apparently commanded by Cardinal; believes Cardinal was not armed himself. Was kept con- fined with McDonald, till Sunday afternoon, 4th November ; was then removed to one Mallette's, opposite Chateauguay bridge, where he found Messrs. Ellice, Brown, Norman, Bryson and others, who, as he understood, had been made prisoners at Beauharnois. On the Sunday and at I- e .s 1^ Monday, saw from 200, to 300 men, armed; but recognized none of the prisoners, as forming part of the band. On a report that the Indians were coming, they seemed to be in an uproar and flew to the Church. On Saturday week from the day on which he, (wit.) was taken, Newcombe and others, (but none of the accused,) took him with the rest of the prisoners, tied them two by two, put them into carts and conducted them to a place called La Figeonnidre, (20 miles from Chateau- guay,) under an escort of 200 people. On arriv- ing at that place, report was made that the Rebels had been defeated at Napierville, upon which they were released and severed. Questioned by the Court. — Never had any communication with the prisoners ; considers Car- dinal as the principal leader ; was kept prisoner in his office. Recollects having seen Ducharme with one Brault, on his arrival at Chateauguay ; both were armed with guns, and were welcomed by the Rebels. Thinks their intention was all that is bad. Duquette, Lepailleur and one Des- marais, said plainly that the Americans were coming to take possession of the country; that there would be a general rising that night, (Sa- turday, 3d,) and the Government overthrown. Obierved degrees of command among the men by whom he was made prisoner : they mounted guard with an officer, and were organized as a military body ; was taken on the 3d, towards 9, in the evening. Knows nothing of the expedition 1 < f If 14 of Caughnawaga. The individuals of whom wit- ness has been speaking, resicie at Chateauguay. Saw them but through the chink of the window, and heard them speak ; cannot say that he saw any of the prisoners armed, except Ducharme. Questioned by Mr. Cardinal. — Did not hear Cardinal give any orders to the armed band ; does not know whether it was, or was not, at Mr. M*Donald's request, that Cardinal came and re- moved him, (witness,) from Duquette's. Cardi- nal did not come, when sent to for an interview. — By Mr. Duquette. — It was by Duquette's orders, that sentries were put to guard the wit- ness. — By J. M. Thibert. — Does not exactly recol- lect the day he, (witness,) took him; but it was in the forenoon, some days after his release. He, (witness,) went out with M*Donaki and one of the Lachine Cavalry, purposely to take him at his own house at Chateauguay. John M'Donald.— ^Resides at Chateauguay. Knows all the prisoners. '(Here witness ad- vances and identifies them, one after another.) On the night of Saturday, 3d November, at nbout ten o'clock, was in bed; heard a great noise and shouting out doors. Got up, and saw through tbe window about a hundred armed men, >vho surrounded his house ; asked what they wanted at an hour so undue, and in such num- bers, Jean Louis Thibert answered they were going to declare their independance that night. •5 I 15 Refused to open, till he knew what they wanted of him. Jean Louis Thibert replied : "open the door, surrender yourself, and I will save your life ; if not, we will fire and destroy the house." Went to the door with his servant boy, who ad- vised him to resist, saying they had a sword and a gun to defend themselves ; forbade him to fire, saying they were too numerous for them to offer any kind of resistance. The band made a great deal of noise round the house, and knocked re- peatedly at the front and back doors. Told his servant boy to hide himself under the bed, and if possible, to secrete his horse on the opposite side of the river, and inform Mr. Ellice that he had been taken. Opened his door and a great num- ber of men, headed by J. L. Thibert, rushed into the house. Witness recognized but Thibert, who followed him into his bedroom, and requested him to deliver up his arms. Witness answered he had nothing but the gun he actually wore with him, his servant boy having taken away his sword, in concealing himself under the bed. J. L. Thibert requested him to dress himself, and to follow him to his store ; he was armed with a sword. Ar- rived at the store, Thibert ordered him to deliver up all the gun-powder and shot he had in his possession. Gave him a canister containing 25 lbs. of gun-powder, and about 50 or 60 lbs. of shot, being all that he had. On returning to his house, Thibert insisted that he had some more arms. Answered they might look for them, ii*they wanted. ; .,fl HI 16 Kesearclies were made from the cellar to the gar- ret; but nothing was found. Some person of the crowd, (does not know who,) said they must tie him. Thibert, who appeared to act in every thing as the Chief, told him if he would make him- self easy and follow them, he would not be tied. He then took him by the arm and conducted him to the Rebel Camp, near Chateauguay bridgje. On going down, the band increased from 200, to 300 men, all armed with guns, pikes, &c. and taking prisoners all the British inhabitants on the road. One M*I-iean, amongst others, having concealed himself into his chimney, Thibert asked his wife where he was. She answered she knew nothing about it. From the conversation the Re- bels had amongst themselves, they appeared t ; know that M'Lean was not absent. Thibert then ordered one Barthelemi Giroux to light up a candle and put fire to the barn, if M*Lean did not come out; upon which witness intreated Mrs. M*Lean not to suffer that her barn should be set on fire, but tell where her husband was. She then pointed to the chimney and I called out for M'Lean. He came out and Thibert made him a prisoner in very harsh terms. Thibert, of all the prisoners, was the only one present. Together with others, Thibert asked Mrs. M*Lean for a rope ; she gave them one ; and M*Lean was tied, his hands behind his back. Having left M*Lean's, Thibert commanded witness to go with the van- guard, for the purpose of advishig all the loyal 17 inhabitants to surrender themselves, in order to have their lives saved ; which he did, by knock- insr, one after another, at their windows, on Im road. On their arrival at the camp, the pri- soners, nineteen in number, were taken to the of- fice of Cardinal, during the night of Saturday to Sunday. Saw there, under arms, Lepailleur, Du- quette, Guerin, L'Ecuyer and Therien. Cardinal had sometimes a sword, and sometimes a gun ; he appeared to be the chief, an.d gave orders. A consultation was held, the result of which ended in the discharge of all the prisoners, except Grant and witness. Cardinal was the person who dis- charged all the others. Asked Cardinal to per- mit him to go under an escort, for the purpose of securing his books and papers ; he refused, or an- swered he would see ; then asked him why he was the only prisoner detained. Cardinal answered, he, (witness,) was the only one wanted ; he added, that Grant was also a prisoner, and that he had been taken with a pair of pistols upon him. Re- quested Cardinal to-put him together with Grant; which was refused by Cardinal, alledging that Gfrant was intoxicated, and made a great deal of nmsie. Grant was drunk* and was very much exf cilecl. Cardinal went out, and returned in the cdiirse of half an hour. Witness repeated his de«> mAnd^ he left again, and came back with Grants iRle kitter had tears in his eyes, and related the itasimefut maimer in which Uiejr had been takexL filie Coiirt Bting near adjoujei^ing:, the prison* B ! i 18 crs submit a motion to the effect that a list of the witnesses for the prosecution be handed to them, accompanied with the place of their residence, and their respective qualifications. The motion is rejected, and the Legal Advisers respectfully insist upon its being eniegistered ; which tho Court rei'uses, upon the ground that it is not cus- tomary to enter or receive any such applications. And the Court is adjourned till tomorrow morn- ing, at ten o'clock.) Thvrsdaij, 29th November, 183S. (10 A. 3f.) After the calling over of the members, the exa- mination of Mr. McDonald is continued ; — Sunday morning, at dawn of day, saw, in Car- dinal's office, Ducharme, armed, and Antoine Co- te, armed with a sword. x\lso saw there Guimond, under arms. They all appeared to come to ('ar- dinal, and receive orders from him. Dining the morning of the same day, saw I^'Ecuyei-, Jean Marie Thibert, Ducharme, Lesiege and 'I'herien, under arms, tlrilling and giving orders. Between eleven and twelve o'clock, on the same morning of the 4th, there was a great bustle amongst the Re- bels ; they said between themselves that the In- dians were coming in. A short tmie after, Mrs. Cardinal came into the house, with tears in her eves. "Witness asked the reason ; she did not an- swer him, and left the house in the course of half an hour. Understood that some of the Rebeljp had gone to Saiilt St. Louis, His impression is 19 st of the to them, sidence, 3 motion pectfiilly lich the not cus- ications. w mo 1*11- A. M.) the exa- in Car- )mc Co- imond, o Car- iig the Jean herien, el ween riinp^ of he Re- he In- , Mrs. in her not an- .f half ebeU ;iou is that Cardinal, Cote, Lepaillenr, Duquette, Gui- mond, Guerin and J. L. Thibert had been takeh prisoners by the Inf.Lorimier Resides at Caughnawaga. On the mo ning of the 4th, at about half-past eight, witness was in his bedroom, when he perceived a man who entered his grand room. Went out, and saw one Ignace Giasson, an uncle to his wife, who told him that the Patriots had arrived into the wood of Caughnawaga. He told witness not to say a word about it, and retired. Saw, in the meantime. Cardinal and Bruyere, who entered his shop. Introd*- jed them into the com- pany room, and drank a glass with them. Asked them what they wanted so earl}- in the morning. They replied they had come to see the Chiefs, in order to get from them the arms of the Indians; asked witness if there was an}- means of obtain- ing them, and what number did they amount to. Witness told them there were about thirty. Car- dinal replied it was not worth coming so far for, and retired, saying he was going down the village, to recover some money from Mr. Charles M*Com- ber. While dressing himself, witness saw Du- quette enter his shop, and speak to his clerk. (Here witness identities the prisoner, by pointing him out with his finger.) Went into the yard, and I 1 ;i i :i I saw one Mcloche, who appeared to form part of the bain I ; retired, not to have any conversation with hitn. Knowing not what to do, witness call- ed at the Piiest's, in performance of his dnty. When 'jut doors, met with an Indian, who told him that the enemy, (meaning the Canadians,) were coming in ; entered the chapel, and infoimed the Priest of it, whilst the latter was saying mass ; then got into the chnrch, called the Indians out, and told them to arm themselves, and prepare to receive the enemy. Tliey went and fetched their arms ; hi the course ol five minutes, they weie all armed and assembled near the May-pole. Ten Indians, (of whom witness was one,) were sent forward unarmed. Arrived at the ('hnpel of the wood, they saw Lepailleur with an Indian, who had a pistol in his hand Lepailleur asked wit- ness why his pistol had been taken away from him ; he added, his intention was not to do any harm to any body. In the meantime, a great num- ber of Canadians, armed with guns, spears, staves, &c., ^urrounded them. Witness recognized none of the prisoners, except l^epailleur, to form part of the band. Asked them what they wanted, sa}^- ing they were suspected by him. They answered they would do them no harm, but were desirous of seeing the Chiefs, to get ihe arms of the In- dians. Witness told them he knew nothing about it ; that three or four of them might come as far as the first house in the village, to ask the arms of the Chiefs ; they all came. Arrived at that i)lace, I 23 part of ;rsation ss call- s duty, old him ) were cd the mass ; IKS out» )are to (1 their eie all Ten c i^ent of the I, who 1 1 wit- f'rom o any n urn- ax es, none part , sa}^- ered nous In- about as far ns of lace, V 1 the Indians who were in ranks, surrounded the Canadians, disarmed them, and made them pri- soners ; after which, they put them into boats, to take them to town. An hour after this, saw Car- dinal, Duquette, and others, who were brought up as prisoners by the Indiims. Questioned by the Judge Advocate — Did Car- dinal make use of any expression of fear or re- gret, during the co:iversation he had with you, on the nnrning of the 4th ? Answer. — Witntiss asked him what was to be- corns of him, if they should not succeed in their enterprise. Canlinal replied, in jest: **J thinic I will be hung; {je crois bicn qucja serai pe?idu,y* The Canadians said, if the Indians would give up their arms, they wouhi not disturb them, and would leave them their Seigniory* They also said that Beauharnois and all the southern shore of the St. Lawrence, had t)een taken, and that St. John's, Isle aux J^oix and Laprairie were to be taken. The band was coming from the rJirection of a pla^e called La Fourchc des Deux Cheminsj (the fork of the two roads,) one leading to Sault St. Louis, and the other to Chateauguay. ' ' Questioned by the Prisoners. — Those of the prisoners whom you pretend to have seen with the band, do they live at Chateauguay? Answer. — Lepailieur lives at Chateaugua}-, Du- quette also. Question. — Were Cardinal and Duquette with the band at Caughnawaija ? m ' \ '■ } ■ ir] 1 1 K: I 1 n Answer. — Jfo. Que8tion.-^Was there any other of the jprispi|i^ault's, on Saturday the 3d? Answer. — It was J. M. '1 hibert. Question. — Were you exeicised or drilled, and by whom? Answer. — \o ; as to him, (witness,) he was not, having been commanded on the evening of the 3d, !-! «i.. i at a late hour, and taken on the following day by the Indians. - * Question. — How were you occupied during the two hours you passed at Chateauguay? Answer. — They were gathered in parties, and speaking together, waiting for drylight. Question. — Were there any sentinels stationed at any place, and where ? Answer. — Knows there were sentinels placed'; doesn't know who they were, as they were placed at some distance from him. Question.— Did you see any person or personis who had been made prisoners at Chateauguay, and who were they ? Answer. — Did not see any. Question. — In what order did the band march from Chateauguay to Sault St. Louis? Answer. — They walked all together when the roads were good ; when the roads were bad, they aeparateil into parties, (pelotons,) from twenty- five to thirty. Question. — Did the Chiefs march with the pt- lotons ? Answer.— They did not. ' ' Question. — Were the Chiefs before? Answer. — They were sometimes before, some- times behind. Question. — What were the degrees of commnnd gmongst them ? _ • ' Answer. — Did not know that there were any degrees cf command ; heard none mentioned. J i ii n,. 33 Question. — Did you receive any orders during the time you were with the band ; and what were these orders ? Answer. — No; there were no orders given; Cardinal and Duquette gave orders. They told them to assemble at the Church, and thence go on to Sault St. Louis. Question. — ^Was there, or was there not in the band, any person called Raquette, Castor, or Frdre- Chasseur? Answer. — There was not. Question. — Was there any other reason for the rising, than to take the arms from the Indians ? Answer. — No ; never heard that it was for any other purpose. Questioned by Cardinal. — Mr. Cardinal told them to march together, when the roads were good. When they were bad, they marched hypc" loions from fifteen to twenty or twenty-five. Question. — Are you not a witness for the Crown ? (Witness says he does not know what answer to make.) Questioned by Lepailleur. — Have you not been arrested by the Indians at Sault St. Louis, at the same time that the prisoners were arrested ? (This question is rejected by the Court, as use- less.) , Pierre Reed, (son of Joseph.) — Resides at Chateauguay. On Saturday the 3d, at six o'clock in the evening, Newcombe came to his house, and n 34 commanded him to go immediately to Duquette's* Witness consequently went there, and found seven or eight individuals. The party increased to the number of about forty ,'from the time of his arrival, until about eight o'clock. Grant then arrived, and was made a prisoner by Duquette. Did not know his name before he heard it pronounced. An hour or two after, the party increased to the number of one hundred, more or less. Henry Newcombe commanded them to go and disarm the Scotch- men, or borrow their arms. About one half of their band proceeded, for that purpose, towards the upper part of the river, and the rest went down. They first went to a Scotchman, who in- stantly gave up his gun. They then came back to the bridge, where, after they had remained for a short while, they were joined by the inferior di- vision, who brought up M'Donald prisoner. Short- ly after, it was decided that they must go to Sault St. Louis, and disarm the Indians. The expedi- tion was commanded by Newcombe and Desma- rais. Threats were made that if any woidd with- draw, he should be fired on. They coiisequently proceeded towards Sault St. Louis, and arrived on the morning of the 4th, at about seven o'clock, in the wood of Caughnawaga, where they remain- ed two or three hours. After which, some one out of the band, (witness does not know who,) said they must scatter ; and they did so. The In- dians having been informed of their arrival, De Lorimier came to them, with five or six other in- ;u; ock, ain- one 10,) In- De in- i i 35 dividuals. De Lorimier spoke to Lepailleur ; but witness does not know what they said one to an- other ; only heard De Lorimier say to Lepailleur, that he must come to the village, to settle the bu- siness with them in one way or another ; they both set forth for that purpose. All the Canadians ad- vanced, in the meantime, towards the village, and the Indians surrounded them. Some of them es- caped, others were made prisoners. Witness re- turned to Chateauguay ; but was taken in the wood, with four or five others. Questioned by the Judge Advocate. — Were the persons who went with you from Chateauguay to Sault St. Louis, armed ? . Answer. — The greater part were not armed ; some of them were armed with guns and spears, and others with staves. « . ; . Question. — For what purpose did the Canadians go to Sault St. Louis ? • - ; Answer. — They went to disarm the Indians. Question. — Do you know what the Canadians wanted with the arms of the Indians ? Answer. — They understood that the Indians were coming against them, and they wanted to have their arms. - Question* — From whom did you understand that the Indians were coming against you ; and why were they coming ? Answer. — From Desmarais and NewcombeJ who said that the Indians were coming against the c2 V f 3G Canadians, to massacre them, together with the Scotchmen. Question. — Did you hear, or in any way under- stand, what was the object of the Chiefs in whose band you were ? Answer. — Witness did not. Question. — In whose name was John Lewis Grant imprisoned ? Answer. — Does not know in whose name Grant was made prisoner ; witness was near him, but he did not hear in whose name he wa§ made prisoner. Question. — Did you see any of the prisoners, either at Chateauguay or Sault St. Louis, on the 4th? Answer. — Cardinal came with them to Sault St. Louis ; but he left them in the wood ; was not armed. Duquette left Chateauguay, to go with them to Sault St. Louis. He had a sword at Cha- teauguay ; does not know whether he brought it with him, or not, to Sault St. Louis. L'Ecuyer set forth with them for the Sault, but left them in the wood ; he had a gun. Saw J. L. Thibert at Chateauguay and at Sault St, Louis ; was not armed. J. M. Thibert left for ihe Sault; does not know whether he was armed, or not. Did not see Ducharme at all. Joseph Guimond set forth for the Sault, unarmed. Does not recollect having seen Therien, either at Chateauguay, or at Sault St, Louis. Cote left Chateauguay for the Sault, unarmed. Saw Lepailleur, first at Chateauguay, > I 97 ith the under- whose Lewis Grant but he soner. oners, )n th€ ult St. is not with Cha- ght it cuyer m in 3rt at 1 not does d not forth aving Saiilt >ault, ^iiay, and then at Saiilt St. Louis ; did not see any arras with him. Saw Lesiege no where. Question. — ^Who were the leaders of the band along the road ? Answer. — They received no orders from any one else than Newcombe and Desmarais. Knew of no other Chiefs than these two individuals. Here the Court is adjourned till tomorrow morning, at ten o'clock. Saturday, Ut December, 1838. (10 ^.3/.) The examination of Pierre Reed, (son of Jo- seph,) is continued : — ^ ' Questioned by the Judge Advocate. — In what order did the band march, from Chateauguay to Sault St Louis ? Answer. — Irregularly, and not like soldiers. Witness was behind, and received orders from Newcombe. (Here the Court interpose, and declare as their opinion, that the witness does not tell the truth. Follows a remonstrance from one of the Judge Advocates, Mr. Mondelet, on the sanctity of an oath, and the liability of the witness, even accord- ing to human laws, to the severe punishment which awaits every perjurer.) Question. — Were there in the band, persons of the name ofRaqiietie, Castor, or Fr^re-Chasseur 7 Answer. — ^Witness heard these names mention- ed ; but does not know by whom they were made use of, nor whom they were applied to. It 1 if! I: 38 Question. — Do you know whether the reason that induced the Canadians to take arms, was any thing else than to disarm the Indians ? Answer. — Has always understood, and still un- derstands, that the only object of the habiianswa.s to disarm the Indians, and afterwards return peace- ably to their homes. Question. — Have you heard, or not, either at Chateauguay, or in going to Sault St. Louis, or elsewhere, that the habitans had risen in numbers, in some other places, and had taken possession of St. John's, Vlsle aux JVoix, Beauharnois, &c. Answer. — Did not hear that they had taken any place ; but understood they had risen. Question. — Did you hear that, whilst in the band ? Answer. — Heard it at Chateauguay, in the band, on the evening of Saturday the 3d. Question. — Do you think the only object of the expedition was to disarm the Indians ? Answei*. — Understood so ; understood also that the object of the habitans was to disarm the Scotch- men in the other parishes. • (This question having been repeatedly proposed to the witness, Duquette respectfully observes to the Court, that only one question ought to be put on the same subject. Duquette grounds his observation upon the fact, that the first answer of the Avitness was not enregistered, because it was too favourable to the accused. Mr. Presi- dent remarks, that it is proper to insist upon the 89 reason rsiS any »till un- ms was peace- ther at uis, or mbers, sion of c. en any in the band, of the that cotch- posed ves to to be Is his iswer se it 'Vesi- In the question, inasmuch as the witness might not have conceived it at once; and tht3 objection is re- jected.) Questioned by the Court. — What was the ob* ject of the habitatiSy in making prisoners ? Answer. — Knows nothing about it. ^ »' . Question. — Are you acquainted with the last witness, (Pierre Reed, son of Antoine,) and do you know if he was or was not in the band, on the 4th? . . , Answer. — Knows him. Has seen him with the band, before entering the wood of Sault St. Loui?, Question. — What was the general impression c f the band, relative to their object ? Answer. — Knows nothing about it. Understood it was to disarm the Indians, Question. — Have you received any orders from any of the prisoners ? — Did you hear them, or any of them, give orders? - . .-; Answer. — Received no orders from any of the prisoners, except from Duquette, when he made Grant a prisoner. Heard none of them giving any orders whatsoevert Questioned by Duquette. — Is it not true that the inn where you saw John Lewis Grant, on Satur- day livening, the 3d November, wjas not kept by Answer.^The meetings were held in a house oc- cupied by itirs. Duquette, as an inn ; but Mr. Du^ quette himself resided there. - '•'^ ' - Jagc^ues T£roni{iahje;r£. — (The evidence is iti- P n :i , 40 :jerpreted.) — Resides at Sault St. Louis. Has been in Court during a few minutes ; but heard nothing. On the 4th of November last, rose early in the morning, and perceived five individuals, who came at a certain distance from one another, from Chateauguay to Caughnawaga, It was about se- ven o'clock. Being surprised to see them so ear- ly at SauH St. Louis, witness left his house to go to one Mr. M*Nabb's, to ask him if he knew what they wanted so early. His brother-in-law was there : requested him to saddle his horse, for the purpose of ascertaining if the report of the womariy {see the evidence of Ignace Delille,) was true or not. He went personally to see, and returned, confirming what the woman had said. He added, that a great number of armed men were coming' in. Witness went, with three other individuals, in the direction of the assemblage, towards the May- pole. Saw on the steps of the Chapel, beyond the village, two individuals, one of whom witness recognized as the prisoner at the bar, Maurice Lepailleur. Went to Lepailleur and his compa- nion with Ignace Delille, requesting the latter ta inform himself of what they wanted. Ignace asked Lepailleur where he came from. He answered, he was coming from Montreal, and had passed by Laprairie. He added, that he was resting himself, being, as he said, fatigued. Lepailleur had a shot- bag with him ; they asked him what he wanted to do with it. He requested witness's companion not to interfere with that, as the bag did not belong 1 ;i 41 [mpa- jr ta isked jred, pdby I self, shot- tdto lion fong to him ; whereupon Ignace requested him to tell the truth, and not to conceal from them what they wished to do. Lepailleur then said to witness's companion : " You know what we are come to do ; we have sent here five of our Chiefs : Cardinal, Duquette, Giasson, Bruyere and Meloche.'* These were the same individuals whom witness had seen early in the morning. Ignace replied to Lepail- leur, that the five Chiefs in question had come into the village ; but that the Indians did not know what they wanted. Lepailleur then said that the Canadians came to borrow the arms of the Indians, and asked Ignace what number did they amount to. Ignace answered he did not know, and that the Indians could not lend them their arms ; that they, (meaning the Canadians,) must consult the (Jhiefs to that effect. The Indians then said that they must take away Lepailleur's shot-bag. Wit- ness consequently proceeded to do so, when Le- pailleur endeavoured to draw from under his coat a pistol, which got entangled in his sash. Witness advanced behind Lepailleur, to take hold of it ; thinks, had he not seized it, he would have shot him. The pistol was charged with ten buck-shot. Lepailleur had on the very same coat that he wears today; his companion fled, and was not taken. He went forward, and gave information to the band, which was armed with guns, forks, staves and spears. When they came to Lepailleur, somebody cried out to him : ^* if you are injured, only say the word." In the meantime, they had all their guns 4\ -■I! ! 42 pointed at the Indians. Lepailleur answered that he was not hurt, and that they ought not to fear, as they, (the Canadians,) would settle the business like brothers, with the Indians. They then began to shake hands with the Indians, saying : "Be not afraid ; we don't come to kill you." Lepailleur asked them if they thought the Chiefs would deli- ver up their arms ; after which, the Indians desired the band to come to the village, and Lepailleur set forth with Ignace, to go and speak to the Chiefs. The band then said : "if we go to the village; you will perhaps make us prisoners?" Whereupon witness replied to Lepailleur: "fear not; I shall settle the business." Witness's object was to make the whole band prisoners, which was impossible, had they remained where they stood. Thought the Canadians had come to make them prisoners; and as they could not do so, the Indians had re- solved to make them prisoners. On entering the village, they surrounded them; whereupon the Canadians asked the Indians what they had said. The Indians, in surrounding the Canadians, told witness to remove, as they were going to fire up- on them, if they, (the Canadians,) fired upon the Indians. The Indians did not wish to fij-e first. The Indian Chiefs gave brders to surround them, saying : "you aie our prisoners," Thus, the In-. dians made them prisoners, Spme qf the Cana- dians ask^d if their ^rms >vqi;14 tje given b^ick to i\\mn \ the fndi^i^s answered, they would think of //, When the Canadians came to ask the aTOS pf « I . I 4B iii jred that t to fear, business en began "Be not epailleur )uld deli- s desired iileur set B Chiefs. lage; you lereupon ; ; I shall 3 to make possible, Thought isoners; 1 had re- ring the ipon the lad said. ms, told Ifire up- ipon the [ire first. Id them, the In-. Oana- i^ck to ihink of the Indians, they said to them : ** We will fight for it ; we shall have yours, or you shall have ours." The Chiefs ordered the prisoners to be taken to Lachine. (Here Mr. President observes to the prisoners that the preliminary answers are entered as fol- lows : — " Was in Court during a few minutes ; but heard nothing.") The prisoners being called over, witness identi- fies the following : — Saw Cardinal and Duquette at Sault St. Louis, on the 4th, unarmed. Did not see L'Ecuyer, nor J. L. Thlbert, nor J. M. Thibert, nor Ducharme, nor Guerin, nor Lesiege. Saw Guerin and Cote, with each a gun ; witness spoke to both of them. Cannot say that he saw Guimond. Saw Lepail- leur, with a pistol ; he appeared to be the leader of the band. W^hen witness asked the band who were the Chiefs, they answered, they were Le- pailleur and the five others. Questioned by the Conrt. — Did you know from any person of the band, what was their object in coming to Sault St. Louis, to disarm the Indians ? Answer. — Their object was to make the Indians prisoners in the Church. (Here the Judge Advocate, Captain Muller, interposes, and repeats the question ; to which witness answers as follows : — ) Heard from some of the band, that the Cana- dians wanted the arms of the Indians, to take La- '.' i mm mmmmmn 1 44 prairie and Montreal, on the same day. This was said after they were made prisoners. None of the Chiefs said so. Blanc Dusault was present when this was said. Questioned by the Judge Advocate. — Heard from some of the band, that the Canadians had ri- sen on that day, (the Uh,) in some other parts of the province ; that they had taken VTsle mix J^olx and Beauharnois, not St. John's ; and that, if the Canadians would lend them their arms, they would take Laprairie. Question 7hy, and for what purpose, do you think that t^^c c anadians wanted to take Laprairie, and aftervr' rds make a descent upon Montreal? Answer.— Caimct ray any thing about it. The Indians who went with witness to the Chapel, are Ignace Delille, JovSeph Kanatahere, and a couple of others. De Lorimier came afterwards. Questioned by the Prisoners. — Can you swear positively that Antoine Cote was armed with a gun? Answer. — Yes. Question. — Are you positive in saying that Le- pailleur told you that there were five Chiefs, or five persofiSf in the village of Sault St. Louis? Answer.— Lepailleur made use of the word Chief. Question. — What word did you use, in speaking to him ? Answer. — Used the word Kohanos, which sig- nifies, in Indian, Chief, w lis was : of the t when Heard had ri- arts of V iNoix if the would do you jrairie, eal? The el, are couple swear with a lat Le- f/jy, or s? word making ch sig- 45 Questioned again by the Court. — Were the guns of the Canadians loaded? Answer. — They were all loaded, and witness has still two of them in his possession, which are loaded. Witness does not count Lepailleur's pis- tol, which was also loaded. After they had taken the arms of the Canadians, they laughed, seeing how they were loaded ; they unloaded them, and said, in jest, that they were still loaded enough to kill them. Narcisse Bruyere. — Resides at Chateauguay ; is a blacksmith. Knows all the prisoners. On the 3d of November last, saw Cardinal, Lepailleur and L'Ecuyer at Chateauguay bridge. Did not speak to them. Saw Duquette in the evening, at his own house. Also saw J. L. Thibert at the bridge. Saw J. M. Thibert going from the Church to the bridge. Saw Guerin on the 3d, at the Cote St, Jean Baptiste, in the parish of Chateauguay, between the hours of three and four in the even- ing. Also saw Edouard Therien there. Saw Me- loche at Sault St. Louis, and J. L. Thibert, as well as Cardinal, on the 4th. Also saw Duquette at Sault St. Louis, with several others. They were all together in the band, when witness saw them. The band was armed, and consisted of about one hundred men, more or less. Does not know who Avere the leaders. They took witness a prisoner, on Saturday night, at nine o'clock. Does not know under whose command the band marched; no Chiefs were made mention of. They told him they 'J li w \\i I , I 4(5 were gone to disarm the Indians. They did not speak to him of any other plan, nor did they tell him what they wanted with the arms. Towards the 3d of November last, there existed at Chateau- guay, a secret political society. Does not know what was the object of that society ; thinks it was to defend themselves in case of a rebelfioi. Wit- ness himself took an oath in the association in ques- tion. Newcombe and Duquette belonged to it, and witness was sworn by Desmaiais, in Du- quette's presence. None of the other prisoners formed part of it. The secret consi^^ted of two signs : the first, to touch one's left nost' il, and the other, to put the second finger of the left hand on the same finGfcr of the rioht hand. I he oath obliged the secret to be kept under { enalty of death, and likewise to obey the 9rder^. of every commander. Did not know from the band, whe- ther their object was the maintaining or the sub- verting of Her Majesty's Govenmicnt. Heard nothing in the society, relative to any intention of proclaiming their independence ; but afterwards, on arriving at Sault vSt. Louis, Cardinal told wit- ness that the moment they would take possession of a place, the mark of independence would be put thereon, and the Americans would come in ; that they would not come in before, because, if they were taken, they would be considered as murderers, and not as prisoners of ^var. Saw se- veral persons armed in the band ; cannot say that they were all armed. I ;■ i ^1 eard on of ards, wit- ssion (1 be e in ; e, if d as V se- that I I 47 Questioned by the Judge Advocate. — When you saw Gu6rin and Therien at the Cbte St. Jean Bap- tiste, had you any conversation with them on the subject of existing troubles? Answer. — They told witness : " there shall be a great noise this niglit ; Laprairic is to be taken." They added, he had better go away, and asked him was he not aware of the troubles which were to take place on that night. Witness continued his way as fur as Ste. Marie, in the ])arish of Cha- teauguay, where iie again saw some agitation. He then proceeded to *S7. Isidore, out of the ])a- rish of Chateauguay, where he could not pass, having been forced to go back. Received a gun, (from Cardinal, he thinks,) on his way from Cha- teauguay to Sault St. Louis ; is not certain whe- ther he Avas present or not. All the people he met on the road, ordv?red him to go to Sault Ht, Louis. On his arrival at the biidge, Cardinal gave him a gun, ordering him to guaJ'd M'Donald and Grant, who were prisoners. Witness went forward himself with his gun. Questioned by the Prisoners. — It is upwards of a month since witness has seen Lesiege. Did not see Ducharme at Chateauguay. When Cardinal gave him a gun, it was to guard Messrs. Grant and M'Donald, who were detained piisoners in the house of one Mrs. Boudria. Received no other orders from him, than to stand sentry. *' (Here the evidence for the prosecution is closed, and the Prisoners are called upon for their lit I' 48 defence. The following motion is presented on their behalf: — ) Province ^ The Queen, OF > vs. Lower Canada. ) Joseph N. Cardinal & al. " The Prisoners, (without waver of any objec- tion or exception by them heretofore made,) re- spectfully move that delay may be granted to them until Tuesday, the 4th day of December instant, to arrange and prepare their defence, and to pro- cure the attendance of witnesses in support of the same. And in furtherance of this, their humble re- quest, the Prisoners beg leave to urge on the at- tention of the Court, the extreme shortness of the time allowed to them to prepare for trial, which has been, in their instance, limited to two days ; for it was not until a late hour on the 25th Novem- ber last, (the Sabbath day,) that they had an op- portunity of conferring with Counsel ; the unusual restraint imposed upon them during that brief in- terval, by having been forbidden all communica- tion with their relations and personal friends, al- though imploringly ^sought for ; the difficulty of obtaining the attendance of their witnesses, who, almost without exception, reside on the southern shore of the St. Lawrence, at a distance of up- wards of twenty leagues from the city, at a season when communication with those parts is next to im- practicable, and in times when the utmost conster- nation prevails among the hahitans of that section i ij-. I edon ;. AL. )bjec- ,) re- I them istant, o pro- of the le re- he at- of the which days ; lovem- n op- usual ef in- nica- s, al- ty of who, Itheni f up- ason oim- ster- Iction 49 of the country ; the practice of Courts Martial, a« laid down in " Simmon's Remarks on the Consti- tution and Practice of Courts Martial," p. 192, {2d edition^) — in pursuance whereof, every prison- er, (though within reach of his witnesses,) is enti* tied to "a day or two, or more, subsequent to tho closing of the prorec;^ion," to arrange and prepare his defence. Other considerations might be dwelt upon by the Prisoners ; but they consider it a work of su- pererogation to add any further reasons in support of a motion, upon the accordance or refusal of which their fate may depend. A Courf. sitting to render justice, and composed of members honour- able in mind and humane in heart, must readily grant a request of such obvious and imperative justice." After a few minutes deliberation, the delay ask- ed for is granted, and the Court is adjourned till Tuesday morning, at ten o'clock. Tuesday, 4th December, 1838. (10 A.M.) After calling over the Members, the Prisoners are called upon their defence, and submit to the Court the following Protest. The Judge Advo- cate who reails it, is interrupted by some of the Members, when arrived at the word '^incompe- tent,'* The deed is stigmatized with the epithet of *• insulting in its terms." Mr. President observes that the Court hold their mandate from superior authorities, and consequently have a right of juris- L, t n 50 diction over the Prisoners ; after which the Pro- test is rejected, without any other form. It shall find a place here : — Province ^ The Queen, OF > vs. Lower Canada. ) Joseph N. Cardinal Sa al. " The Prisoners humbly, but solemnly, protest against the present tribunal, now assembled under the designation of a Court Martial, proceedhig further in the said cause, or compelling the said Prisoners, or any of them, to enter upon his or their defence : Firstly, Because the said tribunal is wholly in- competent to take cognizance of the offence of High Treason, with which the Prisoners stand charged, or to sit in judgement upon them for the said offence, inasmuch as they say : — That by the Act of the Imperial Parliament of the 14th Geo. III. c. 83, it is enacted that the cri- minal Law of England shall continue to be admi- nistered, and shall be observed as law in the pro- vince of Quebec, as well in the description and quality of the offence, as the method of prosecu- tion and trial, to the exclusion of every other rule of Criminal Law, or mode of proceeding therein. That the Statute of the Imperial Parliament of the 35th Edward III. cap. 2, commonly called the Statute of Treasons ; the Statute of the same Par- liament of the 7th William III. c. 3 ; and the Sta- tute of the same Parliament ofthe7thx\nne, c. 21, and diyers other Legislative Expositions of the < 51 le Pro- It shall Sc AL. protest d under iceediiig the said n his or liolly in- Tence of stand for the iment of the cri- |be admi- the pro- >tion and Iprosecu- Ither rule therein, iinent of lalled the lame Par- the Sta- le, c. 21, IS of the I said Statute of Edward III., by different Laws en- acted since that period, formed, and still form, part of the Criminal Law of England, introduced into the said Province of Quebec, by virtue of the said Act of the Imperial Parliament of the 14th Geo. TIL c. 83, and are yet in force hi the Province of Lower Canada, by virtue of the said Act. That bv virtue oftheC' ' «mor. and Statute Law of England, having refevence to criminal offences, and forming part of the laws of this province, a party charged with High Treason is entitled to be tried by a jury of his country, impannelled before the ordinary tribunals, to the exclusion of every other mode of trial ; to be furnished, at least ten days before the day of trial, with a list of the jury, to give him the benefit of the challenge ; with a list of the witnesses for the prosecution, to enable him to detect conspiracy and to prevent perjury ; in like manner, to have at least ten days previous to such trial, to procure the assistance of counsel. That by the Act of the Imperial Parliament of tlie 1st Victoria, cap. 9, under the supposed au- thority of which an Act, (as it is said,) hath been passed by the Administrator of the Government, by and with the consent of a pretended Special Council, authorizing the trial by Courts Martial of all persons, who, since the first day of the month of November now last past, had been or then were engaged in the rebellion therein referred to, it is expressly provided : "that it shall not be lawful " for the Governor and Council, to repeal, sus- d2 'X i 'i t mm 52 " pend or alter any provision of any Act of the Im- **perial Parliament of Great Britain, or of thePar- " liament of the United Kingdom, or of any Act "of the Legislature of Lower Canada, as then " constituted, repealing or altering any such Act " of the Imperial Parliament." That it was not, and is not competent to any lo- cal Legislature, created by the said Act of the Im- perial Parliament of the 1st Victoria, c. 9, to sanc- tion any departure from the practice of administer- ing the Criminal Law of England, as introduced into this province by the said Act of the Imperial Parliament of the 14th Geo. III. cap. 83, or to abrogate any part of the Common or Statute Law of England, having reference to the offences of High Treason, existing and in force at the time of the passing of the last mentioned Act. That the pretended Ordinance of the Adminis- trator of the Government and Special Council of the 2d Victoria, cap. 3, is null and illegal ; not on- ly for the reasons aforesaid, but also because the Council firstly constituted under the Act of the Imperial Parliament of the 1st Victoria, cap. 9, was lawfully dissolved by letters patent of His Excellency the Earl of Durham, the then Gover- nor-General of the province, on or about the first day of June last ; and that the said Ordinance of the 3d Victoria, cap. 2, was enacted with the sanc- tion and advice of the persons composing the Spe- cial Council, so dissolved as aforesaid, without the said Special Council having been reconstructed ; \ >ver- first ;e of mnc- ISpe- \tthe ted; 53 and also, inasmuch as there was no Legislature in session in the province, on tlie day when the said pretended Ordinance purports to have been pass- ted ; the said pretended Ordinance of the 2d Vic- toria, cap. 3, purporting to have been enacted on the eighth day of November last past, whereas the pretended Special Council, by and with whose sanction the said pretended Ordinance was enact- ed, was convened by proclamation to meet only on the ninth day of the said month of November now last past. That, supposing the said pretended Ordinance ofth 1st Vic. cap. 3, had been legally enacted, (which the Prisoners, on the grounds above set forth, distinctly deny ;) yet, inasmuch as the said pretended Ordinance merely assumes the power of authorizing the Administrator of the Province, from and after the said eighth day of November last, to arrest and detain in custody all such per- sons as heretofore had been, or then were, engaged in the rebellion therein mentioned, and because such persons so arrested and detained in custody, to be brought to trial, in a summary manner, by Courts Martial ; and as they, the piisoners, were not arrested after, nor on the said eighth day of November last, but had, in fact, been arrested se- veral days previous to the said eighth day of No- vember last, the said pretended Ordinance could not in any wise be construed in such manner as to render them amenable to a Court Martial, or to ,»ii :4! ;i " I 54 any other Court established under colour of the said pretended Ordinance, Victoria 1st, c. 3. That they, the Prisoners, having been arrested previous to, and bemg in the custody of the Civil Authorities, at the time when Martial Law was proclaimed by the aforesaid Administrator of the Government of this Province, on the fourth day of November last, cannot come within the scope of the said pretended Ordinance, 2d Victoria, cap. 3, which is declared to be founded upon the said pro- clamation of Martial Law, inasmuch as no law or proclamation can have, or be made to produce, a retro-active effect. Istly, Because no Court Martial, even though assembled to try persons amenable to a tribunal of that nature, can subject any individual to the punishment of death for any crime not expressed to be furnished by the Mutiny Act, or by the Arti- cles of War ; whereas the crime of High Treason, now imputed to the Prisoners, which is punisha- ble by death and attainder, according to the laws of the land, is not specified or referred to, in the said Mutiny Act, or in the Articles of War. 2dly, Because the proceedings before the said tribunal, designated as a Court Martial, have not, in their instance, been carried on in the manner required by the law of the land, and the practice of Courts Martial, in all cases over which such Courts have competent jurisdiction. 3dly, Because evidence of a nature favourable >l l! said not, nner ictice such ^ 59 to the Prisoners, although given by the witnesses, was not recorded, and questions tending to elicit other evidence favourable to the Prisoners, were rejected. It cannot be contended that the Prisoners have been foreclosed from thus protesting, inasmuch as the incompetency of a tribunal before which a Pri- soner is tried, may be urged at any stage of the proceedings.* And inasmuch, moreover, as the objections lately set forth, are founded upon the il- legality of the proceedings had before the said tri- bunal, as well previous to, as since the opening of the trial." (Signed,) J. N. Cardinal, &c. Montreal, 4th December, 1838. The above Protest being rejected, the Prison- ers beg leave respectfully to submit to the Court the following Motion : — Province ) The Queen OF > vs^ Lower-Canada. J Joseph N. Cardinal 5c al. "Whereas the evidence on the part of our said Lady the Queen hath been duly closed in the said cause ; and whereas no legal evidence hath been adduced to establish the charges laid against Louis Lesiege, otherwise called Louis Lesage dit Lavio- lette ; and whereas the testimony of the said Louis • it will be remarked that the prisoners had already attacked the jurisdiction cf the Court, by the Preliminary Exccptiona which tliey submitted, before pleading to the charge. •I I /' I 56 Lesicge, otherwise called Louis Lesage dit Lavio' lette, is material and necessary to the defence of the eleven other prisoners now under accusation 5 they, the said remaining eleven prisoners, namely J Joseph Narcisse Cardinal, Joseph Duquette, Jo- seph L'Ecuyer, Jean Louis Thibert, Jean Marie Thibert, Leon Ducharme, otherwise called Lean- dre Ducharme, Joseph Guimond, Louis Guerin dit Dusault, otherwise called Blanc Dusault^Edou- ard Therien, Antoine Cote, and Francois Maurice Lepailleur, having by law a right to avail them- selves of such testimony, and to demand that the said Louis Lesiege, otherwise called Louis Lesage dit Laviolette, be discharged forthwith, for the purpose of giving such testimony, (without recog- nizing the jurisdiction of the said Court over them, or any of them, and without waver of any objec- tion by them heretofore urged or pleaded,) hum- bly move that the Court do take the case of the said Louis Lesiege, otherwise called Louis Lesage dit Laviolefte, into consideration, inslanier, and tlierefrom discharge the said Louis Lesiege, other- wise called Louis Lesage did Laviolette, from the accusation of High Treason, now pending against him as aforesaid, in order that he may be, in due course of law, examined as a witness in their be- half. And the said Louis Lesiege, olherw^ise called Louis Lesage dit Laviolette, as well in his own be- half, as in furtherance of the above application thus preferred on the part of bis fellow-prisoners, prays ;U \.i ' II be- Ithus rays W 57 that his case may be taken into consideration, in- atanleVi and that he be forthwith discharged from the said accusation. The Prisoners found their application upon the practice universally followed in all Courts of Law, binding alike on all Courts Martial in their pro- ceedings, when not otherwise regulated 'jy the Statute, and would humbly refer the Court to all writers on the Rules of Evidence in criminal cases, and more especially to a case in point, namely, Stafford's Case, H. T. ISOl, {K,B.) east^m, which is referred to in BacorCs MridgmenU under the word : ** jyjarlial Law and Courts MartiaU JVb. 580," in the following terms : " The Mutineers " of the Bounty were tried by a Court Martial, at ** Portsmouth. There being no evidence against " one of the persons accused, it was insisted, on " the part of another of them, that he had a right ** to examine the first on his behalf. The Court, '* however, by the advice of the Judge Advocate, ** refused to let him be examined, saying, the prac- ** tice of the Courts Martial had always been " against it ; and the prisoner was condemned to death ; but, upon the sentence being reported to the King, execution was respited till the opi- ^* nion of the judges was taken, who all reported ** against the legality of the sentence, on the ground of the rejection of legal evidence ; and the party was afterwards discharged." Montreal, 4th December, 1838. I I <( (( t< t( \ \i ■% || (J \ 58 The Court having heard the above Motion, re^ fer to their Legal Advisers. Mr. Day, having ta- ken communication of the case alluded to, accord* ing to the author himself, declares it not directly in point, and consequently inapplicable to the pre- sent case. His observation is grounded upon the fact, that in the trial of Stafford, above quoted, there was no evidence against the accused whose discharge had been solicited; whilst, in this in- stance, the prisoner Lesiege is somewhat implica- ted. And the Motion being overruled, the Pri- soners proceed to the examination of the witnesses for the defence : — (A. J*. Hart, Esquire, joins Messrs. Moreau and Drummond, for the defenee of the accused.) Jean Loiselle, of Chateauguay, farmer. — ; Questioned by J. M. Thibert.—Knowr ' M. Thibert, since his childhood. Question. — Did you see me on the 4th of De- cember, and where ? Answer. — Yes ; in a field near Chateauguay, at about half-past two o'clock in the afternoon. Wit- ness was with him ; they were running away to- gether. Question. — Why did we run ? Answer. — We endeavoured to conceal our- selves. Question — ^Why did J. M. Thibert endeavour to conceal himself? Answer. — He did not tell it to witness. %. 39 I our- N t1 n Question. — In what direction was Thibert run- ning ? Was it not in the direction of his own home ? Answer. — It was. Question. — Do you not know that he ran away to avoid all intercourse with those who had risen ? Answer. — Believes it was for that purpose ; he ran away because he was afraid. Question. — With whom were you, when you met J. M. Thibert? Answer. — Was with one of my brothers, Joseph Loiselle, and one Paul AUeine. Question. — Are you acquainted with one Bas- tien Villamme ? Answer. — Yes. Question. — State if you met him on the 4th, and if Thibert was then present? Answ er. — Was with his brother, w ith J. M. Thi- l)ert and with AUeine, when they met Villamme ; he came on horseback. Question. — Had not Bastion a gun, and did he not command Thibert to go to the camp ? Answer. — Yes; Bastion got down from his horse, and cocked his gun at Thibert, command- ing him to go to the camp. Question. — Are you not under the impression that Thibert went to the camp, merely because he was forced to do so ? (This question is rejected by the Court, it being a matter of opinion. It is thus changed : — ) Did not Thibert follow Bastien, after these me- naces? s . . ! 1" ;H 1 '\ i ! /'/■ I 60 Answer. — Yes ; Bastien conducted Thibert be- fore him as far as the camp, threatening him, and saying he would bring him by force, if he refused to march. Question. — Was Thibert armed ? Answer. — No ; he had nothing in his hand. Question. — Is not Thibert a peaceable, quiet man, and the father of a family, enjoying a good reputation ? Answer. — Yes ; never heard any thing against him. Questioned by Lepailleur.— Do you know Frs. Maurice Lepailleur, and since what time ? * Answer. — Has known him for eight years. Question. — Is he a peaceable man, enjoying a good character, and the father of a family? Answer. — Yes. — By Duquette. — Knows Duquette for three or four years. He enjoys a good character. — By J. L. Thibert.— Knows J. L. Thibert since his birth. He is a good character, and the father of a family. — By Guimond. — Has known Guimond fifteen years past ; he enjoys a good character, and is the father of a family. — By L'Ecuyer. — Does not know L'Ecuyer enough to speak of him, either favourably or un- favourably. — By Lesiege. — Knows Lesiege five or six years. He enjoys a good character; does not know if he is the father of a family. i if \ i: 01 — By Cote. — Has known Cot^ for the last ten years ; he enjoys a good character, and is the fa- ther of a family. — By Therien. — Knows Therien since three years, but very little. Never heard any thing against him ; believes he is the father of a family. Questioned by the Judge Advocate. — How ma- ny persons were taken to the camp by Bastien, when you saw him with Thibert at Chateauguay ? Answer. — Six, Thibert included. Question. — Where was the camp? Answer. — At Mr. Duquette's, near the Church at Chateaugua3\ Question. — At what distance were you from the house of Thibert, when you ran away with him and the others ? Answer. — We were in the fields of Chateau- guay, at the distance of a league or a league and a half from J. M. Thibert's house. Question. — From what direction came Thibert, in his flight ? Answer. — He came from the Church of Cha- teauguay. Question.— How do you know that? Answer. — Because witness ran away with him from the Church. Question. — What distance is it from the Church, to Thibert's ? Answer. — It is about one league and a half, or one league and three quarters. Joseph Loiselle. — Witness confirms the good i I : il ' t i I 62 character given by his predecessor to the above named prisoners. Has known Cardinal for fifteen years ; he bears a good character, and is the father of a family. Knows Ducharme three or four years ; he enjoys a good character. Doesn't know if he is the father of a family. Knows Guerin for four or five years ; he bears a good character, and is the father of a family. Has known Therien for twenty years ; he bears a good character, and is the father of a family. Questioned by J. M. Thibert. — Have you seen J. M. Thibert on the 4th of November last, at what hour, and where ? Answer. — Saw .J. M. Thibert, on the 4th of No- vember, between the hours of two and three in the afternoon, near the millof Chateauguay. He was running away, with four other individuals, at the distance of about fifteen acres from the village. He was not armed. There were then five persons together: witness, his brother, one Paul Alleine, and two other individuals. Thibert fled in the di- rection of his home. He met, in his flight, a man on horseback ; does not know if he spoke to him, or not. The individual on horseback had a gun, and commanded Thibert to go to the camp. He cocked his gun at nim and threatened to shoot him. Does not know whether his intention was, or was not, to shoot him. Thibert went to the camp, after these menaces. John M'Donald, (the second witness for the Crowns) asked witness : *'why do you c^me and give your evidence?" 63 IS Answered r. " in obedience to the summons of the Court." M*Donald said nothing else. Paul Alleine, also confirms the good charac- ter of the prisoners in general. Knows L'Ecuyer these nine years ; he bears a good character, and is the father of a family. (This witness having been brought up to prove the same facts as the preceding witnesses, the Court observes that he is not necessary, and, in consequence, he is not examined.) Fjerrk Jacques Beaudry. — Witness is not gaoler of the new prison of Montreal. Keeps the books and other documents of the gaol. His duty is also to examine the provisions and other arti- cles, which come in and out of the gaol, every day, from twelve to two o^ilock. Question. — On what day has Leandre Ducharme been lodged in the prison of this town ? Answer. — On the 7th of November last. He absented himself since that day, during two nights, (witness cannot tell which,) to go, witness does not know where. He left the gaol under the charge of the Provost -Marshal, and came back un- der the very same charge. John Wilson, Provost- Marshal. — Ducharme slept with his fellow-prisoners, during the nights of the 28th and 39th November, at Potnte-h-Cal- lidre. Laurent Latour, of Lachine, farmer. — Saw Ducharme at Lachine, on Saturday, 3d November, at about six or seven o'clock, A.M. Witness \ % is i I I .* 64 spent the evening with him, at his, (Duch«rnie*«,) cousin's. Saw him also at the door of the Lachiiie Church, on the following day, the 4th, at about se- ven or eight o'clock in the morning. Ducharme's father resides at Chateauguay, and his son often goes to see him there. Questioned by the Judge Advocate. — Lachine is three leagues distant from Chateauguay. The journey can be made in two or three hours by the common way, and in two hours by the steam- boat. The steamboat does not cross on Sunday. Michel Roy Poutelance, of Lachine, farmer. —Saw Ducharme at Lachine, on the 4th, between eleven and twelve o'clock. The steamboat does not cross on Sunday. Ducharme's father resides at Chateauguay, and his son often goes to see him there. On the night of Saturday the 3d, the wea- ther was very bad ; the wind blew, and it rained very hard. It would have been very dangerous to cross over in such weather, from Lachine to Chateauguay. Elizabeth St. Denis. — Is the widow of Jean Baptiste B9udria, and resides at Chateauguay. Knows all the prisoners for several years. Did not see Leandre Ducharme at Chateauguay, on the 4th. Was at her own house on that day. * i about four o'clock in the afternoon, a person ca» a and asked for Mr. M*Donald, who was detained prisoner in her house. Does not kn6w who it was. Ducharme certainly is not the person who came and asked for Mr. McDonald ; he was not l/: « to lean on ted it ^ho lot \* 65 anioiigst those wlio came and asked for him. Saw Cardinal at her own house, when Grant and M*Donald were detained prisoners there ; had no conversation with him. When witness saw Grant on the Saturday night, (3d November,) he ap- peared to be intoxicated. When she spoke to Mr. Cardinal, he seemed afraid of what was pass- ing. He was not armed, nor did he give any or- ders, when she saw him. Question. — Is it not true that one Meloche came on the morning of the 4th to Cardinal's office, and speaking to him and to several others, commanded them to march, and told them that, if they refused to do so,' he would force them, (meanhig Cardinal and others?) (This question being submitted to the Court, Mr. President observes that it is too leading, and must be put in another shape. It is thus chang- ed :— ) Is it not true that one Meloche came, on the morning of the 4th, at Cardinal's office, and if so, state what he said? Answer. — W^hen Meloche came in, there were several persons at my house. On arriving there, he said that every body must go, and asked for Boudria. Cardinal asked what it was; Meloche answered he knew nothing about it. Cardinal then absented himself, and afterwards came back, in a few minutes. Neither Guerin, nor L'Ecuyer, came to Witness's house on the evening of the 3d or 4th, with arms. Saw Lepailleur at her house, £ u , H i I d i GG J' on the 4th, unarmed. She had no conversation either with Mr. IM*Donakl, or with Mr. Grant. Did not see Cote at Cardinar.s, on the 4tl), armed with a sword. Guimond did not come to her house on the 4th, armed, during the time Messrs. Grant and M 'Donald were detained prisoners there. Question. — Had the above-named prisoners been armed, woukl vou not have seen them ? (This question is rejected by the Con. t.) It being Four o'clock, the Court is adjourned till ^omorrov/ mornino-, at Ten o'clock. Wednesday^ hth December^ IS39, (10 A. M.) The examination of V*'idow Boudria is con- tinued : — Questioned by the Judge Advocate. — Saw Grant intoxicaicd. on Sunday morniu;?. He came to her house on that day, at ai)out three or four in the morning, and left at the same hour in the evcnino;. He drank strons; liquors. Saw Mr. Cai- dinal but once in his (C.'s) oflice. Saw Ducharme at no time on the 4th, at Clicieauguay. Saw him the followin« mornino-, alone and unarmed. On her arri> al at her house on P»Ionday, found Grant tipsy. Had spent the whole night by a sick wo- man. Does not keep an Inn. Mr. Cardinal's oflke is in her house. It was let by Messrs. Car- duial and Desmarais. No other person either lodged or boarded with her. Vital DuiviOLci^iELLic, of Chateauguay, far- fl 67 .Hation ulrant. armed her Lcssrs. soners soners 7 )urnec! . M.) S COll- -Saw came r lour in the . Cai- larme w him On Grant V wo- ilinal's i. Car- eitlier -, far- mer. — Saw Lepailleur on the morning of the 4th, between four and half-past four, at Mrs. Bou- dria's ; he was not armed. Also saw Cardinal there, at the same hour. Cardinal did not give any orders, nor was he armed. Questioned by the Judge Advocate. — Did you belong to the Band who made M 'Donald a pri- soner ? Answer. — No. (Here IMr. Duquette rch'pectfally submits to the Court, that such questions onl} are to be put to the witness, as immediatelv derive from the examination in chief. Mr. President o])serves that tlie principle invoked by Mr. Duquette is well founded, but that its application is a wrong- one, inasmuch as the questions put by the Judge Advocate, spring from the examination in chief. He remarks moreover, that the Court is subject to no rule, not even to that whidi obliges the prosecutor to put only such questions, as spring from the examination in chief. The exa- mination is thus contii !ied : — ) Witness went to ]>a's. Boudrii's at about four or half-pasL four, in the morning, because he was sent for their n 1 1 •i ' I ' it ! 1 ! ; «i 72 homes. On Saturday night, (3d November,) it was too dark at Chateauguay, to allow witness to distinguish if the assemblage in question was armed, or not. Two of them spoke to him: Car- dinal and Duquette. J. L. Thibert told him that the people would be risen to disarm the Scotch- men. Cardinal told him : ** So, we are again in troubles ?" Witness asked him what he meant ; to which he replied, he knew nothing more than himself. Duquette seeing witness suffering, told him: "Why don't you return, Mr. Couillard?" Witness issued no icarrants against any of them ; could not issue any warrant against about twenty persons, w'ho were doing no harm. (The evidence on behalf of the prisoners is here closed, and Mr. President observes that the Court is desirous of examining Mr. McDonald a second time. The prisoners object to it, on the ground that he was present in Court, during the examination of the evidence on the Defence. The (yourt is cleared, to dehberate on the merits of the objection. After a few minutes, the Court is open, and decides that Mr. M*Donald is to be heard on a particular point.) Questioned by the Court. — Were you in Court during the examination of the witnesses on the Defence ? Ansv/er. — Entered at different times inside of the Court ; but did not remain more than a se- cond at a time. Question. — You said hi your examination \\\ U .1 73 chief, on the 29th of November last, that on Sa- turday, the 10th, Ducharme came in and told that 1 the Aiiicricans had taken possession of Napier- ville, and that you must go there ; and you said, moreover, that you recognized amongst the es- cort of armed men, Ducharme, who appeared to be the principal leader : declare to the Court, whether the Ducharme you then saw, was or wa^^ not Ducharme, the prisoner before the Court 7 Answer. — Cannot swear positively that ])u- charme was at Chateauguay on the 10th ; was so confused and excited. The witnesses being heard on both sides, the prisoners submit to the Court, a motion, demand- ing delay until tomorrow afternoon, at two o'clock, to prepare their Address. The Couit, ov>"ing to the three festival days, (Frida}', Saturday and Sunday,) immediately successive, reduces the delay to eleven o'clock ; after which, tlie Court is adjourned. Thursday, Gth December, 1S3S. {11 A. M,) Mr. Drummond is allowed to address the Court, as follows, and Mr. Hart joins him in reading the Comments which form part of the Address : — Gentlemen of the Court, "Arraigned before a Tribunal, hitherto unknown to all without the precincts of a bariacks or the limits of a camp ; so formidable in appearance, so vague in its character, so unsettled in its proceed- ings, and called upon to answer for life and libert} , \i li I rl 74 J ' or death and opprobrium to our posterity, we dared to demand the right of every British subjeet : a trial by his peers ; we dared solemnly, but res- ])ectfully, to protest against being compelled to enter into our defence, before a Tribunal whose right to tiy us, as civil subjects of the Crown of England, we could not recognize ; and in so doing, we acted in accoi'dance with a piinciple maintain- ed in eveiy Court of Justice in the known world, not solely in matters where the lives, but even where the most unim|>ortant rights of in(iividuals are at stake, namely : that the jurisdiction of such Court may be questioned by the person cited be- fore it, and the decision of the Tiibunal re([uiied, as to the absence or existence of the jurisdiction so sliadowed with doubt. This declaration was ileemed an insult ! Gentlemen of the Court, ice meant it not as such. Men placed in the awful situation in which we stand, have no tlisposition to insult even the meanest of their fellow-creatures ; much less' to ])rofler outrage to a formidable Tri- bunal, arrayed in judgment against them, and pre- pared to decide upon their fate. V/itli regard to you. Gentlemen, we imj)ute it not to blame, if we have been arraiiined under these forms. We are aware that the ])ower you now wield, has not been claimed by you ; tluityou have not arrogated toyour- selves (he rit» ht to iud"e us : but v.e dared to assert our immunities as JJritish subjects, to aflirm that the authority from which you hold your mandate, had overstepped the .limits prescribed to it by a ¥ I . 1-1 73 ; dared lect : a Lit res- iled to whose 5\vii of doing, intain- woild, t even ^idiials )f such ed be- [uii ed, diction )n was It, ice awful tion to tures ; c Ti-i- d pre- ard to it' we e ar(; been }our- \ssert 1 that id ate, I ■y ' a Su})erior Power, which, with an eye ever watch- ful over the liberties and privileges of all who owe it allegiance, had forbade even the slightest inter- ference with the forms hitherto adopted in this country, in the trial of suj)])osed criminals. And therefore, we called upon you to pause, ere you proceeded to enregister a judgment against any one of us, not for ourselves alone, nor in the names of our wives and children, who, under presump- tion of our guilt, have been banished from their homes, by the brand of the incendiarj , to seek the roof of charity, in the name of that God who protects the shelterless ; not only on behalf of the hundreds who, lingering like ourselves in the dark dungeons whence we have been dragged hither in chains, awaited whh anxious car and beating heart, a decision to them of such vital im})ortaJice, l)ut also in the names of half a million of our fel- low-countrymen, any one of whom may, at a mo- ment's warning, on a bare shadow of evidence, be cited before you in judgment, to be surrounded in that dread hour, b}' all that can appal, deprived of all that can su))port the human heart in such a situation, and utterly stript of that armour with which the humanity of English Law, as extended to this Province, had hitherto encircled the ac- cused. But the fiat has gone forth ! You have decided, (or rather you have assumed,) that you are duly empowered to judge us. As we must, therefore, for the present, submit to the decision of a Military Tribunal, we deem ourselves fortu- li ? 1.1 76 n I?, I! I ' : nate in behoUling, in the persons of our Judges, many whose high reputation sulTiciently warrants us that thev will not stain their laurels with aught savouring of injustice, and others who, bearing on their countenances the impress of high aspirings, will not cloud their rising fame, by allowing any preconceived opinions which the breath of malice may have wafted to their ears, to influence the de- cision which they iiave solemnly pledged them- selves before Heaven, to render according to the evidence. No, Gentlemen of the Court, in your consideration of the case now before you, you will discard from your memory all recollection of recent events ; you will show to the world, that your minds are a])ove being tainted with preju- dice ; you will set at defiance the bloodthirsty cravings of that portion of public opinion, iDhich, alone, is not at this moment mute, and which so peremptorily demands not punishment to the guilty', hut death to all the accused ; and you will be govern- ed in your deliberations by the following propo- sitions, upon which, before commenting separately upon the evidence adduced, as well against, as in favour of each of us, we beg to rest our defence : Firstly, The rules and doctrine of evidence, as admitted by law in all criminal cases, or on pleas of the Crov/n, are adhered to in the same manner upon trials of Courts Martial, the only exceptions being where the proceedings have been otherwise regulated by the Statute. Secondly, That cases of High Treason, being 77 udges, arrants I aught ling on >irings, ng any malice the cle- tliein- I* to ihn 1 vour i, you tion of d, that preju- thirsty ivhichy lich so overn- 3ropo- irately I as in fence : ce, as pleas anner ptions irwise being in no wise contemplated by the Statute, either as to the mode of trial, or the meed of punishment, must be regulated by the aforesaid rules and doc- trine of evidence before Courts Martial, (if such Courts can ever be competent to take cognizance of offences of that nature.) Tliirdly, Thai two lawful and, (to use the lan- guage of the old iwiihovs,) pi'oveable witnesses are required, to convict a piisoner in all such cases of High Treason. Fourthl}', That there exists no crime vvliere the will counteracts the d(3e(l ; or in other words, that threats and menaces, duress per minus, which in- duce fear of death or of bodily harm, take away for that reason tlie guilt of ap])arcnt ciiine, allea:^t before the human tribunal. — Sec Blackstonc^ vol. 4, p. 29, Edition of 1793. Comraenis of Lcandrc Ducharnie. It has been stated by John Lewis Grant, the first witness on the part of the Prosecution, that he saw me in arms at Chateaugiu^y, on }ii:s arrival there, at an early hour, in the evening of the 3d of No- vember last. It is not astonishing, (however to be regretted.,) that a man who v/as, on that occasion, (as it war, proved by Mrs. Boutlria,) in a rotate of intoxication, should make a statement so false, so positively disproved by two unimpeachable wit- nesses, with wiioml spent that nighl and a part of the following day, up to noon, in the parish of La- chine, on the other side of the lake, and at the dis- \^^ j f *1 ir: I I 78 tancc of three leaj^ues from the phice where Grant pretends he saw me. lUit, tliat another witness wlioni w^e must presume to have been in his sober senses, since nothing to tlie contrary has been proved ; an indiviihial invested with the sacred character of a magistrate, should so far forego his duty as a Christifin, bound " no! to brai" false tes- timony against his neighbour^''^ as not only to de- ch\re positively that I was in arms at v hateanguay, on the 4th of November, at d.iwn of diiy, but also, on Saturday the 10th; although it has been proved by my witnesses, beyond a shadow of doubt, that an the 1th, at that hour, I was at Lachine, and on the 10th, in the connnon gaol of tliis district, which I entered on the 7th of that month, and have sinoe inhabited. Mr. M' Donald j)resnrrje(l, no doubt, that the close conlinement wiiich J am subjected to, would preclude all possibility of evidence be- ing procm'ed to rebut these statemerits; that none but the €ye of the Unseen wonld be enabled to detect a fraud so well calcidated to eiTecthis nefc- rious designs ; but, thanks to my kind friends, am- ple means ]iave been afforded me, not cnlytocon- vhice you. Gentlemen, of the falsivy of his testi- mony with regard to m5'self, but, doubtless, to in- duce yon, likewise, to reject aU his testimony. True, after having heard his evidence contradicted by my witnesses, Mr. M' Dor aid slat 3d, in answer to a (question proposed to him by the Court, that, owing to the excitement and confusion of the mo- ment, he might have' fallen into error, in stating ' V e Grant uitness is sober IS been sacred ego his ilse ics- { to (le- in.c?iiav, lit also, proved bt, that and on , which e sinoe doubt, )jccted CO be- lt none >led to s nefb- Is, am- o con- testi- to in- nony. ilicted nswer that, mo- tat insi" 71) that he saw me on the lOth. Such an error miirlit possiljly have occurred, were that slatemont taken alone ; but wheii considered in connexion withth(5 conversation wliich he asserted he had with nie, on that occasion, the j)ositive averment that I was the leader of his escort, the resentment and partiaHty displayed by hitn, while :*:'iving cvithince against us, and tlie threats he Ihdd out to our vritnesses, to in- timidate and deter thop.i from ap{)earini.^ in our be- iialf, his false usssitions cannot, by auy sketch ot charitable feelin,<]^, be attributed to a mere lapse of memory. The al)ove statetnent, made by John J^ewis Grant a'ld John ?.I'l)onald, the onlv wit- nesses who liave attom'ptcd to impeach my cha- racter, having been thus (!irect!y contiadicted and disproved, there remains of record against me but one assertion, made by ?dr. M' Donald. That as- sertion, unsur])oi'te'), as it is, bv the testimonv of any other witness, would form no legal pro:J' to support an accusation of this nature, even under the very improbable supposition that the Court would feel disposed to give the sliglitest credence to any portion of IMr. IM'Donald's evidence. I, therefore, await witli co.ifidenc'e, at your hands, Gentlemen of the Court, that acquittal which will restore me to the arms of an aged parent, whose gray hairs may not, I trust, go ((own in sorrow to the grave. «'i (I 80 Comments of Jean Marie Thlbcrt. Gentlemen, 1 am another of the prisoners who have been so decidedly marked out by M* . IVI'Donald, in his evidence, as having l)een in arms dunng the whole time that he was at Chateauguay a j)ri3onei' ; yet, Gentlemen, strange to say, I was, as 1 have proved by Pierre llochon, a Tugitive, and concealed in d/ifferent ])arts of the country, above the village of Cliateauguay, fiom the Ith until the 10th of No- vember. It is, however, not astonishing, that Mr. M'Donaid's evidence should be so ilutiv contra- dieted respecting myself, when it has been so po- sitively set asiilc with regard to a fellow-prisoner, Ducharmc, whom he distinctly swore to have com- manded ilio j)arty which proceeded to La Pigeon- nicre on the 10th; although, at that very time, Ducharme v.as a })risoncr in the Montreal gaol. I must bc.^: to l:e allowed, in order to ihew the in- credible character of Mr. ?.l 'Donald's testimony, i^enorally to weigh, even more heavily than my fel- low-prisoner has done, upon that ])art of his evi- dence ; and, should the Court be of the same opi- nion as I am, it must be compelled, in justice to die Prisoners, in the interests of truth, totally to re- ject the testimony of that witness, noCv/Idistanding the apparent respectability of his charactor. You v/ill recollect, Geutlemeri, tr.At Tilr. IM 'Do- nald cahul}' and cooliy swore that Ducharme v. as the one who came into the room where he was imprisoned, and told them that the Americans had 81 the same taken Napierville, ordering them, j time, to prepare to go thither ; that he was the one who caused them to be tied two by two, and put into carts. But, after having ascertained that the alibi was clearly proved, he came before you again, and stated that, owing to the huny and confusion, and the number of armed men, he uiight have been mistaken as to the person referred to upon that occasion. Gentlemen, is not that too strange an absurdity to be believed? Another hidividual, who comes alone into the loom, to r(.'latean event of such importance, who lies the v-itne.'s, who es- corts liitti ^rom Chateauguay to La yi^eonni^rCf to Le mistaken for the man whom the witness de- clared he had seen during all the week, actively engaged, and under arms in the rebel ranks ! Gentlemen, Uucharme's is not a face lo be mista- ken for another ; his is not a countenance to be easily forgotten. Mr. M' Donald's desire of re- venge for his own wrongs, can alone explain his testimony. To that revenge, Diichar.ne aud I were both to be sacrificed. Ac^ c.rdhig to his statement, we were both drilling ; we were both in arms ali the week ; when, in fact, (as it has been clearly proved,) the one was in prison, the other concealed in the woods. Thus, Gentlemen, the evidence of Mr. McDonald, regarding nie, being set aside, (as it must be by you all,) what remains against me? — Pierre Reed proves that I was one of the band that went to Caughnawaga ; thatl or- dered him to go to the Sault, and that I was arm- ilj n t ' 1 ; 82 ed with a gun. Gentlemen, this is false. Does this evidence agree with that of the two Loiselles, both of whom proved that, when trying to avoid being forced to join the insurgents, 1 was flying towards my home, when arrested by one Vil- lamme, and forced, by threats, even at the muzzle of a gun, to go to the camp ? Bruyere also states, that he saw me on the way to the Sault, but un- armed. The evidence of these witnesses, even though it were not so contra Victory as it is, would still, from the circumstance of their being accom- plices in the crime imputed to me, be insufficient in law, to convict me of High Treason, when un- supported, as it is, by other testimony. I, there- fore, pny an acquittal. ; i' Comments of Joseph JV. Cardinal. Gentlemen, The imputations cast upon me by Mr. John M 'Donald, must, for the reasons set forth by my fellow-prisoners, (reasons too obvious to dwell up- on,) be set aside. I would merely ask the Court if it is not possible, nay, highly probable, that, had the Court questioned him as to his certainty with regard to all the material assertions made by him against us, he would have declared himself to be equally doubtful, as in reference to his statement respecting Ducharme ? If excitement and confu- sion operated on his mind, to such an extent as to induce him to attest upon oath, the purport and precise words of a conversation which hj alleged 83 Doea idles, avoid flying 3 Vil- luzzle itates, it un- even would ccom- ficient 3n un- there- John |y my 11 up- ourt |t, had with him o be iment lonfu- as to and ?ged he had held at Thateauguay with that individual, at a time when the latt^^r was in this city, is it not to be presnmed that all his statements, with regard to what occurred on the first night of his imprison- ment, when his excitement and confusion might be supposed to have been at the highest pitch, are wholly unworthy of credence ? But this, though a strong argument against his testimony, dwindles into weakness, when compared with the startling fact that he has been directly contradicted by po- sitive and unii'ipeachable evidence, in five mate- ri; ' points. The evidence of John Lewis Grant, upon the ground assigned by Ducharme, is equally incredible, at It'ast with regard to any thing w hich iiQ pretended to have witnessed on the night of the 4th November last. The evidence given by De Lorimier does not tend to establish the charges, inasmuch as no overt act laid in the charges, nor any other, Jhas been proved by him. Tenihatie has named me, but merely to state that he saw me a prisoner in the house of an Indian, at Sault St. Louis. This is the only admissible, the only le- gal testimony adduced against me, inasmuch as the evidence given by Pierre Reed, (fils d'Antoine,) l)y Pierre Reed, (fils de Joseph,) and by Bruyere, icj of that nature which, by some legal writers, has been considered totally inadmissable, and cannot, at least, come under the designation o^ prove able evidence, by which alone an accusation of this na- ture can be supported. 84 Comments of Jean Louis T/uOert. Gentlemen, Were the evidence of Mr. John McDonald not so completely destroyed by the numerous false statements r ^de by him, as clearly demonstrated by my fellow-prisoners who have preceded me, I should enter into a discussion of its merits. But can you. Gentlemen, in adopting, as you necessa- rily' must, the sacred principles of law upon which we rest our defence, give a moment's credence to a single statement made by that witness? — No, GentJemen of the Court; it would be an insult to suppose, for one moment, that you could do so. The two Reeds and Bruyere have stated that they saw me at Sault St. Louis, on the morning of the 4th ; but. Gentlemen, I ask you if it has been proved, in the course of the trial, that the object the band had in view, whotever it may have been, was known to me, or that any person explained that object in my presence ? True, it has been asserted that an individual, in advaii ;e of the band, made some explanatory state- ments ; but 1 humbly contend that, as it has not been established in evidence that any such state- ments were made in my presence, I cannot be convicted of the traitorous intent of subverting the Government, even thoui^h the Court should be of opinion that the testimony of three witnesses, who gave their evidence merely in the hope of obtain- ing pardon of an offence similar to that which is 85 lid not s false st rated . me, I . But ecessa- which iiice to ?— No, suit to do so. at they of the ^ been object I been, )lained lual, hi state- las not state- lot be Ing the be of }, who tbtain- lich is I now imputed to me, could be considered suffi- cient. Pvioreover, whatever may be the character of the deed, there exists no crime when Ihe outward man is not the free agent of the mind within him. Had I met, and conspired, and agreed, with others, traitorously to subvert and destroy the Govern- ment, as charged against me, should 1 have been seen agitated with fear, and weeping at the idea of being compelled to leave my home, for an object to me unknown ? — I had no object in view, but to screen myself from the threats of violence held out to me. I knew nought but the determined pur- pose of the individual who commanded me. Comments of Joseph VEcuyer, Five witnesses have mentioned my name in the course of the trial. M*Donald's evidence has al- ready been sufficiently commented upon. Teron- hiahere stated, in the first instance, that he saw me at Sault St. Louis, on the 4th of November last ; but, on recollecting himself, said positively that he did not see me. There remains, then, nought against me, save the testimony of the two Reeds and Bruyere. This testimony is not of that unim- peachable nature which the law demands in sup- port of a charge of High Treason ; moreover, the traitorous intent not been proved against me. 86 Comments of Antoine Cbte. The evidence which affects me is so contradic- tory and imperfect, that, I trust, the Court will not hesitate to declare it wholly insufficient to support the accusation preferred against me. The first witness, Pierre Reed, (fils d'Antoine,) stated dis- tinctly that I was at Sault St. Louis, on the 4th November ; whereas Pierre Reed, (fils de Joseph,) proves that 1 was not there. The Reeds both concur in affirming that, wherever they pretend to have seen me, I was not armed. On the other hand, Teronhiahere, the only witness who states that I was at the Sault, said I was armed with a gun. If the evidence of the Reeds be taken, that of Teronhiahere must, necessarily, be rejected ; in that case, the assertion of my having been in the band, w\\\ be supported only by two witnesses, against whose testimony the strongest objections have been urged by some of my fellow-prisoners who have preceded me, tending to shew that such evidence can only be admitted in support of other testimony, and can never be considered, when alone, as sufficient to convict. If, on the other hand, the evidence of Teronhiahere be taken, and that of the Reeds rejected, there will remain but one witness against me. In either case, I am en- titled to, and confidently pray for, an acquittal. \[ 87 Comments of Edouard Theriin. Gentlemen, Mr. M*Donald has alleged that I was at Cha- teauguay bridge, under arms. The credibility of this witness has been utterly destroyed. Pierre Reed and Bruyere are the only other individuals who state that they saw me, and they merely as- sert that I was at the bridge, without connecting me with any armed band that might have been there ; nor does either of them state that I was armed. Even supposing their evidence to be un- impeachable, there exists not of record sufficient proof to convict me of the crime laid against me. f, therefore, confidently claim from you. Gentle- men of the Court, that acquittal which, by law, I am entitled to. esses, ctions oners such other when other , and but en- 1. Comments of Duquette, Lepailleur, Giiimond and Dusault. As the hour fixed for the meeting of the Court rapidly approaches, we are compelled to unite our defence, and to entreat the Court to afford us the benefit of all the objections urged by our fellow- prisoneis, against the evidence produced on the part of the prosecution, in so far as they can be made to apply to our cases ; and, trusting to your generosity and justice, we leave our cases, with- out any comment, to your investigation. Ml 1 ' It n >v ; 88 Comments of Louis Lesiege, otherwise called he- sage dit Laviolette, Gentlemen, My name has been mentioned by only one, out of the number of witnesses produced by the Crown, namely, by Mr. M*Donald ; there is, therefore, no legal evidence before you, to support the charges exhibited against me, and I await at your hands that acquittal which, in law, I am entitled to, and now humbly demand." The Address of the Prisoners having been heard, the Court is cleared ; and, after about two hours, the Judge Advocate, Mr. Day, reads the following Reply, partly prepared on the preceding day:— " May it please the Court, This protracted trial has, at length, reached the point at which it becomes the duty of those con- ducting it, to offer their closing remarks upon the proceedings before the Court, with a view of re- calling to attention the legal definition of the of- fence charged ; of examining how far the facts proved correspond with this definition ; and, fi- nally, of directing the enquiry, whether the crime of High Treason, as charged against the prison- ers, has been brought home to each individual among them. The duty, in this instance, although of an im- portant, and we may add, a solemn nature, is by ill J t lied Le- one, out Crown, sfore, no charges nds that ind now ig been out two ads the eceding hed the se con- )on the of re- the of- facts and, fi- 3 crime prison- ividual an im- is by 80 no means difficult of performance ; the rules of the law are so precise, and the evi. Photographic Sciences Corporation 23 WIST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4S03 i\ ■^ '^N o^ 1 A^ '^ L 1 > I ■-' u ^ 1 I 1 i i 1 : i 94 he heard, before le-^^'ing Chateauguay, that the habitaiis were rising in every direction ; this he heard while at Chateauguay, with the band, on the Saturday night, (3d November.) Sixth. The Indian, Teronhiahere, the eighth witness for the prosecution, confirms the evidence of the previous witnesses who have spoken of the attempt to disarm the Indians, and he states, in answer to a question proposed to him, that he un- derstood that they, (meaning the body who came to disarm the Indians,) wanted to get the arms, to take possession of Laprairie. They said they were going to take Montreal the same day ; they told him, (witness,) so, after they had been made ;.;isoners ; Blanc Dusault was present when some one in the crowd said so ; and again, some one in the crowd said the Canadians had risen in other parts ; they did not say they had taken St. John's, but that they had taken I'lsle aux Noix and Beau- harnois, and added, if the Indians would give up their arms, they would take Laprairie. Seventh. Narcisse Bruyere, who has given tes- timony as Queen's Evidence, a witness of great importance, in all essential matters, confirms the evidence of the preceding witnesses, and as to what occurred both at Chateauguay and Caugh- nawaga ; in answer to a question proposed, lie stated that " w lien we, (meaning the band of arm- ed men with whom he was,) got near the Sault St, Louis, he asked Mr. Cardinal what his plans were ; ke, (Cardinal) said, *^ that a$ soon as they had taken i; hat the this he on the eighth idence 1 of the tes, in he un- > came •ms, to 1 they ; they i made 1 some ane in other ohn's, Beau- ve up n tes- great iS the as to augh- d, he arm- It St, irere ; aken 95 possession of one place, the mark of independence would be put there, and the Americans would come in, and that they would not before, because they would be considered as murderers, if they were taken, and not as prisoners of war ;'* and, again, he says that Guerin and Therien told him that a blow was to be struck at Laprairie that night, (Saturday, the 3d November,) and asked him if he was not aware of the disturbances there were going to be every where that night ; they said that Laprairie was going to be taken that night. Such are the facts before the Court relative to the existence of an armed body, assembled with treasonable designs, and aiding in a general re- bellion ; they surely afford a full measure of evi- dence of each and all of the overt acts laid in the charge, viz : the conspiring to subvert the Govern- ment, and depose the Queen from her Legislative rule in the Province, the inciting and aiding in a rebellion for that purpose, the preparing and le- rying war against Her Majesty, and the being found in open orms against her Government. Were any further evidence necessary on this fjubjcoi, we might urge, as indications of a treason- iible design, the military organization which ex- isted among this assemblage of men, the disarm- ing of Her Majesty's loyal subjects, and making them prisoners, and the existence of secret socie- ties and secret oaths, as established by Bruyere ; but we feel satisfied that the Court can have no a / r 1 f . 1 ! i i: \ i 1 i t 96 hesitation in arriving at the conclusion, that the crime of High Treason was committed by a body of men, as well at Chateauguay as at Caughnawa- ga, between the first and seventh days of Novem- ber last. We have now to enquire whether the prisoners at the bar have been identified as participators iu this crime ; and in the examination of the evidence, with a view to the settlement of this question, we deem it unnecessary to quote those passages in which the various individuals before the Court are mentioned. Such a course wor'd be exceedingly cumbersome, and serve only to embarrass and per- plex ; we shall, therefore, merely name the wit- nesses who depose to each individual, in order that the number by which he is identified, may be at once ascertained. We first take up Cardinal, whom we find iden- tified as having been at Chateauguay, on the 3d and 4th, among the armed body of men, by M 'Do- nald and Grant, and as having been at Caughna- waga With the expedition there, by De Lorimier, Ignace Delille and Teronhiahere, and as having been at both places, by the two Reeds and Bruyere. The offence is thus brought home to him by eight witnesses, exclusive of two or three who were examined on the defence ; and it may be re- membered that the whole evidence goes to show that he was a man of much influence and activity, and held an important station in the rebel Camp. 07 that the T a body ghnawa- Novem- irisoners ►ators ill vidence, tion, we sages in iourt are eedingly and per- the wit- in order may be nd iden- theSd M«Do- aughna- orimier, having ds and him by ee who r be re- show ictivity, Camp. The next name on the list, is Duquette; he is identified as having been, on the 3d and 4th, in the body of armed men, first, at Chateauguay, by M'Donald and Grant ; second, at Caughnawaga, by De Lorimier, Delille and Teronhiahere ; and third, as having been at both places, by the two Reeds and Bruyere : eight, exclusive of two or three witnesses examined on the defence ; he ap- pears to have been an active and influential man, and to have held a station of command. L'Ecuyer was seen, on the 3d and 4th of No- vember, at Chateauguay, in the body of armed men, by M'Donald, the two Reeds and Bruyere : four in all, exclusive of the widow Boudria, who speaks of him in her evidence given on the de- fence. Jean Louis Thibert is shewn to have been at Chateauguay, with the rebel force, on the 3d and 4th of November, by M'Donald, the two Reeds and Bruyere ; the last three also saw him at the Sault St. Louis : four in all, exclusive of the men- tion made of him bv the witnesses on the defence ; it must be observed of him that he appears to have been in authority, and that M'Donald was made prisoner by him. Jean Marie Thibert was at Chateauguay, and accompanied the expedition to the Sault St. Lou- is, but stopped short of the latter piace, in the wood near it ; this appears from the testimony of M'Donald, the two Reeds ^hd Bruyere : jour in number. t I G wBsssa Mi I' 1 1 ' I f' ! ii i! 4! 1 '! , i t 98 Joseph Guimond was seen, on the 3d and 4th of November, among the rebel force at Chateauguay, by M*Donald and the two Reeds, who also saw him in the expedition to the Sault ; the witnesses against him are three in number. Louis Guerin dit Dusault was seen, among the rebel forces, on the 4th of November, by McDo- nald, at Chateauguay and in the expedition to the Sault, by the two Reeds and Bruyere, and at the Sault, only by Delille and Teronhiahere : six in all. Antoine Cote was seen, on the 4th of November, at Chateauguay, by McDonald, and there and at the Sault, by the two Reeds, and at the Sault alone, by Teronhiahere : four in number. Francois Maurice Lepailleur is proved to have been, on the 3d and 4th of November, at Chateau- guay, by McDonald, there and at the Sault, hj the two Reeds and Bruyere, and at the Sault only, by Teronhiahere, De Lorimier, Delille and Teni hatie : making together eight ; he is proved to have been an active man, and to have held a station of command. Edouard Therien was seen at Chateauguay, among the armed force, on the 4th, and at St. Jean Baptiste, in the parish of Chateauguay, by Bruy- ere, on the 3d, but not with a body of men ; he was with Guerin dit Dusault, and, from his conver- sation, evidently aware of, and implicated in the disturbances then aboCit to take place ; the witnes- ses asainst him are two in number. 1 4th of 10 saw nesses ig the Vl«Do- to the at the six in ;mber, and at Sault a have ateau- ilt, ly t only, Teni ohave ion of jguay, .Jean Bruy- !n; he onver- in the ^itnes- 99 Leon or Leandre Ducharme was seen at Cha- teauguay, on the 4th, 5th and 6th, by ^T*Donald, Grant and Veuve Boudria, a witness examined on the defence. Louis Lesiege dit Laviolette is identified by but one witness, M*Donald. Such is the evidence in support of the pro- secution ; a few words will suffice to dispose of that adduced on the defence, which appears to have had a three-fold object : first, to shake the testimony of M*Donald, by contradicting some of his statements, and of Grant, by shewing he was intoxicated ; and second, to prove that force was employed, particularly in the case of the twoThi- berts ; and third, to estabUsh an alibi in favour of Ducharme. With regard to the testimony of McDonald aiid Grant, it may be remarked, that its entire rejectiori by the Court could not affect the position of ain of the prisoners, except Therien and Ducharme ; the others, exclusive of Laviolette, are sufficienth identified without the assistance of these two wii:- nesses ; we shall, therefore, reserve what we have to say on the subject of their credibility, until we come to the examination of Ducharme's defence As to the question of force, it must be apparent to the Court, thst no case has been made out, even in favour of the Thiberts, and much less in favour of the other prisoners. Giving to Jean Marie Thibert the full benefit of the evidence on this point, we find it refers to a period subsequent to g2 mmm 100 1 i i 1 I! 1 t i } P. ,i: i < : 'Mi the commission of the offence which has been proved against him. The offence was committed on the night of the 3d and the morning of the 4th, before ten o'clock ; the force, (if force it can be called, which was exercised by one man against siXi) was employed on the 4th, about half-past two o'clock ; the evidence does not meet the case ; it might have been rejected, when offered ; it can now have no influence upon the opinion to be formed of the man's guilt or innocence. As to Jean Louis Thibert, his pretence of hav- ing been forced, is equally unsupported ; the evi- dence of Couillard, who alone speaks to it, tends rather to criminate, than justify the unhappy man ; aware of the approaching crisis, trembling with ap- prehension of its consequences, with sufficient time to flee from a participation in its dangers and its guilt, he still goes on, with a strange infatua- tion, and exhibits himself as an actor and leader in the very enterprise which he professes to de- plore. We must declare, then, that the attempt to prove force or compulsion has failed so totally, that it becomes unnecessary to enquire minutely into the law relative to the nature and degree of force which shall justify a man in concerting with and aiding traitors ; it is enough to state, in the gene- ral terms of a writer of high authority, that "the only force that doth excuse, is a force upon the person, and present fear of death, and this force and fear must continue all the time the party re- 101 5 been imitted he 4th, can be against a St two ase; it an now formed of hav- le evi- , tends Y man; rith ap- ftlcient Ts and ifatua- leader to de- prove that it to the force h and gene- "the )n the force ty re- mains with the rebels ; it is incumbent upon men who make force their defence, to show an actual force, and that they joined pro timorc mortis, et re- cesser ant quhm cilo poitiercmt.^^ We leave to the Court the application of this rule to the case before it. We now come to the consideration of the evi- dence adduced by Ducharme to prove an alibis and to an examination of the incidental question, whether he has succeeded in destroying the cre- dibility of the witnesses McDonald and Grant. With regard to the cilibi, Ducharme has proved by Latour and Portelance, that he was at Laclnne on the 3d of November, and spent the evening there, and that he was seen there on the 4th, be- tween seven and eight in the morning, and again, between eleven end twelve, and that two or three hours are required to make the passage between that place and Chateauguay. M*Donald says that be saw him at Chateauguay, on Sunday morn- ing, about daylight, on the same day, about four o'clock, and on the Monday or Tuesday follow- ing. Veuve Boudria states he was at Chateauguay on Monday, the 5th, and Grant swears he saw him there, armed, with one Brault, without specifying the day ; but as Grant was captured on the 3d, and Ducharme on the 7th, it must have been be- tween those two days; the alibi, therefore, if proved on the 4th, (which we much doubt,) is not proved on the following days, and, consequently. 1 nn mm (II ! 1' «^'1 I ' in I* ii Ui ■■ i) 102 cannot avail the prisoner ; the evidence adduced in support of it, resolves itself thereby into a ground for impeaching McDonald's testimony, which now calls for examination. It must be admitted, that McDonald has been contradicted in his statement that he saw Du- charme on the 10th of November, and that a strong doubt, if not an absolute contradiction, has been cast upon the accuracy of some other statements, more material to the case before the Court. The rule to be applied to a witness so situated, is that if, without impeachment of general character, he be contradicted on an immaterial point, such con- tradiction will not discredit him ; if he be contra* dieted in material points, his evidence, when un- contradicted, will not, generally, be altogether re- jected, but it will be received with caution, and require to be confirmed. If the prisoner were on his trial for murder, and the evidence against him drawn solely from a witness situated as M 'Donald now is, we should be disposed to say, that it would be insufficient to justify a conviction ; we give this example as an illustration of our understand- ing of the rule ; but after all is said, it is a question for the conscience of each individual member of this Court, to determine whether, and how far, he believes or disbelieves IVl*Donald's testimony. As to Grant, the only ground for the impeachment of his credibility, is the statement made by Veuve Boudria, that he had been drunk, and was intoxi- cated, {en train,) We do not think this evidence U dduced ground ch now IS been w Du- strong s been iments, , The is that ter, he :h con- contra- en un- ler rc- n, and ere on st him )onald would 3 give stand- estion 3er of ar, he As ent of /^euve titoxi- ieuce 103 has been carried far enough, materially to shake your faith in his statement ; he may have been in- toxicated, and yet, fully capable of observing and remembering what passed about him ; his story is uncontradicted, and generally confirmed by Veuve Boudria ; and, moreover, if intoxicated at all, there is nothing to shew that he was so, after Sunday morning, the 4th November, and he does not say that he saw Ducharme upon that day. Upon the whole, therefore, the Co; ?t, although it will examine with care the statements of this wit- ness, will not be disposed to der'are him riAWOr- thy of belief. We do not especially allude to tlie character of the witnesses on the defence, because they have proved so little that can avail the prisoners ; it ought not, however, to be overlooked, that thosn upon whom reliance is principally placed, viz : the two Loiselles, Alleine, Veuve Boudria, Du- mouchelle and Rochon, appear, from their own declarations, to have been accomplices in the guilt of those for whom they testify, and, like them, li- able to be accused before this Court. And while on the subject of accomplices, it may be well, in answer to a remark of one of the pri- soners, in reference to the two Reeds and Bruy- ^re, to satisfy the Court as to the rule applicable to evidence cf this nature. The rule is this: that in strictness of law, a prisoner may be convicted upon the testimony of a single evidence, since, where competent evidence is adduced, it is for th« fi( I ■A << ! i \v\ I ■■ i ll' ? 1 ' 104 jury to determine on tlie effect of that evidence ; in practice, it is usual to direet the jury to accjuit the prisoner, where the evidence of an accomplice stands uncorroborated in material circumstances ; this, however, is a matter resting entirely in the discretion of the Court. And it may also be here noted, in answer to an allegation made by Cote, that no act of treason was brought home to him ; that the doctrine of the law, as applicable to all the prisoners, is, that when a connection between several parties is once es- tablished, by proof of their conspiring to act in concert together for the attainment of a common object, then, whatever is done in pursuance of the conspiracy by one of the conspirators, though un- known perhaps to the others, is evidence against them all. In conclusion of the entire case, we feel bound to declare our opinion : first, that the evidence of the offence charged, is perfect against Cardinal, Duquette, L*Ecuyer, Jean Louis Thibert, Jean Marie Thibert, Joseph Guimond, Louis Guerin dit Dusault, Antoine Cote and Fran9ois Maurice Lepailleur ; second, that if the Court be of opinion that M*Donald is unworthy of credit, even in state- ments directly confirmed by Grant, and collateral- ly so by Widow Boudria, the prisoner Ducharme will stand in a doubtful position, and the Court will determine how far he is entitled to the benefit of that humane rule which says, that all doubts shall be resolved in favoUi of the accused ; third, that 105 dence ; ► accjuit )mplice tances ; in the 5r to an treason 3 of the it when [ice es- ) act in Dmmon J of the gh un- against bound ;nce of rdinal, , Jean jruenn aurice pinion I state- ateral- harme rt wUl efit of shall that if the evidence of McDonald be rejected, the cri- minality of Therien rests upon the evidence of Bruyepe alone ; and fourth, as to Lesiege dit La- violette, that the evidence is insufficient to v^rarrant his conviction. We have thus exposed, for the consideration of the Court, the evidence bearing upon the present prosecution, and all material points connected with it. In reply to the moving appeal from the prisoners to your humanity and compassion, we can only say, that the duty resting on the Court is one independent of, and above the impulses of feeling, and must be sternly performed according to the law and evidence of the case. With these observations, the Judge Advocates, having endeavoured to fulfil their duties before this Tribunal, to society, and to the accused, await the decision which your consciences may dictate, and which justice may approve." After the Reply, the Judge Advocate intimates to the Prisoners, that the sentence will not be communicated to them, until sanctioned by His Excellency the Commander of the Forces ; and the Court is cleared, to deliberate upon the ver- dict. Here terminates the Trial of the twelve prison- ers of Chateauguay and Sault St. Louis. Mn (;, 106 1 Petitions and Executions, ^c, ^c. ' ' ' • • ' ' ' The sentence has been since known to the pub- lic. Two of them have been acquitted, Edouard Therien and Louis Lesiege, otherwise called Lou- is Lesage dit Laviolette ; the ten remaining otherg were condemned to death, two of whom, J. N. Cardinal and J. Duquette, were executed. '; !• lU HI ^ ( 'Hi; I Here foUows the Argumentative Petition in fa- vour of the Prisoners, submitted to His Excellency Sir John Colborne, on the day which preceded that of the execution of Messrs. Cardinal and Du- quette : — « To His Excellency Lieutenant General Sir John Col- borne, Knight Grand Cross of Her Majesiy^s Most Honourable Military Order of the Bath and of th4 Hanoverian Order, Commander of Her Majesty^ $ Forces in the Provinces of Upper and Lower Cana- da, and Administrator of the Government of the Province of Lower Canada, S^c. fyc. fyc. May it please your Excellency, " We, Aaron Philip Hart and Lewis Thoroai Drummond, of the city of Montreal, Esquires, Counsellors at Law, duly admitted and authorized to practise as such in the Province of Lower Ca- nada, beg leave respeetfully to present to your 107 Excellency this, our Argumentative Petition, on behalf of Joseph Narcisse Cardinal, Joseph Du- quette, Joseph L'Ecuyer, Jean Louis Thibert, Jean Marie Thibert, Leon Ducharrae, otherwise called Leandre Ducharme, Joseph Guimond, Lou- is Guerin dit Dusault, otherwise called Blanc Du- ■ault, Edouard Therien, Antoine Cote, Francois Maurice Lepailleur, and Louis Lesiege, otherwise called Louis Lesage dit Laviolette, and to pray, that, in consideration of the causes and matters hereinafter set forth, your Excellency will be pleased to withhold your sanction or approval of any finding or judgment rendered, or to be ren- dered, by a certain Court Martial, presided over by Maj'^r General Clitherow, which assembled at the city of Montreal, on Wednesday, the twenty- eighth day of November now last past, for the trial of the prisoners above named, upon a charge of High Treason; We beg respectfully to submit the following propositions : — Istly. That the said Prisoners, as civil subjects of the Crown of England, and not soldiers, were and are not liable to be tried by Martial Law. 2dly. That the Ordinance alledged to have beer passed by the Administrator of the Province of Lower Canada and Special Council, as the 2d Vict. c. 3, tending to render the civil subjects of Her Majesty amenable to Courts Martial, and in- tituled: ^^ An Ordinance for the suppression of *' the Rebellion which unhappily exists within ihi* *: !• i I t 1 ' ■ i. ' '-• l' i; .1 i ; ; f . Ul , \ ni! '1 Ail lOS " Province of Lower Canada, and for the protec- " Hon of the persons afid properties of Her Ma- ^^jesty*s faithful subjects within the same,^ is ille- gal and a nullity, and can have no force nor effect in this Province. 3dly. That the said pretended Ordinance, su[^^ posing it to be legal, can in no wise effect or be so construed as to extend the controul of Courts Martial, or of any Military Tribunal organized in virtue thereof, to the case of the Prisoners. 4thly. That supposing the Prisoners to be, or to have been, amenable to Martial Law, the pro- ceedings in their case had, have been repugnant to the laws of the land and the practice of Courts Martial, and were and are altogether illegal, null and void. The doctrine laid down in our first proposition is so unquestionably true, as to require no argu- ments in support of it; we will, therefore, on this point, restrict ourselves to two quotations, the one from the celebrated Sir Matthew Hale, the other from a report of the case of Sergeant Samuel George Grant, argued in the Court of Common Pleas, in England, Trinity Term, 1792, in which the fundamental principles of this doctrine are ful- ly set forth. Sir Matthew Hale, in his History of the Com- mon Law of England, in speaking of Martial Law, expresses himself as follows : — " But touching ** the business of Martial Law, these things are ** to be observed: firstly, that, in truth and reali- 100 f! ** ty, it is not a law, but something indulged, ra- " ther than allowed, as a law ; the necessity of *• gov«rnment, order and discipline in an army is ** that only which can give those laws a counten- " ance : quod enim necessitas cogit dcfendi. Se- " condly, this indulged law was only to extend to " members of the Army, or to those of the oppo- " site Army, and never was so' much indulged, as " intended to be executed or exercised upon " others ; for others, who had not been listed under " the Army, had no colour or reason to be bound by *' Military constitutions, applicable only to the " Army, whereof they were not parts ; but they "' were to be ordered and governed according to *' the laws to which they were subject, though it were a time of war. Thirdly, that the exercise of Martial Law, whereby any person should lose " his life, or member, or liberty, may not be per- " mitted in time of peace, when the King's Courts are open for all persons to receive justice, ac- cording to the laws of the land. This is, in substance, declared by the Petition of Right, 3, cap. 1, whereby such commissions and Martial Law were repealed, and declared to be contra- ry to law." — Hale's Hist, Com, Law, p, 45. The opinion of the late Chief Jusiice Loughbo- rough, as expressed in the case above alluded to, and the arguments of Sergeant Marshall, are so strong and explicit as to induce us to cite them at length, in so far as they are in point : — " Sergeant " Marshall, in support of the motion for aprohibi- (( (( (( (( (( (( <( it ! * IH i-;t' i ) ( ;• , I !■ 1 '1 ! I , I ! 1 ' <( (( (( t( It t< t( (( (( (C i( << <( il (( (( <( <( (( (( (< (( (( (( (( t( {( (( «( i( no tion, argued, with great ability and ingenuity, the following points, on which he pleaded the Court ought to grant a prohibition : firstly, that the plaintiff. Grant, was not a soldier, and there- fore, not liable to be tried by Martial Law, &c. &c. &c. On the first ground he observed, that if there be a case in which, above all others, it becomes the Courts of Westminster to be par- ticularly watchful over the right of the subject, it is in the case of a Court Martial deciding on the extent of its own jurisdiction. It is not dis- puted that a Court Martial has power to try the question, 'whether soldier or not ;' that power must be inseparable from their jurisdiction. But they exercise it at their peril, and it benoves them to have the most ex[)licit and unequivocal proof that a man is a soldier, before they ven- ture to put him on his trial for any offence what- ever. If it shall be in the power of any Milita- ry commander to take up a man under pretence of some supposed Military offence, and it be in in the power of a Court Martial to give them- selves jurisdiction over him, by deciding him to be a soldier, upon evidence such as has been re- ceived in the present instance, the liberty of the subject is at an and, and the Army may, as soon as its commanders shall think fit, become the sovereign power of this country. That, in fact, the plaintiff was not a soldier, appears from the proceedings before the Court Martial." * ♦* Secondly. Evidence was received against the Ill (i (( ti it it tt it a it a it it a tt It it it (( (( C( (( n (( ti it <( «( I( tt tt he plaintiff, which was not admissible by the rulei of the Common Law ; and evidence for him re- jected, which ought to have been received. Every Court which assumes the name of a Court of Justice, must have some principles or rules for its guidance in the investigation of truth. The rules of evidence of the Common Law, at least so far as they are applicable to criminal proceedings, are neither numerous nor complex, but plain and simple, and are founded in wisdom, and established by the experience of ages. The rules of evidence are, perhaps, those, of all others, which ought to be kept in- violate, with the most religious veneration. The whole administration of justice, both civil and criminal, in a great measure, depends on them. A Military Court Martial is the mere creature of the Mutiny Act, and has not the smallest sha- dow of authority, but what it derives from that act. It is impossible that it can have any an- cient or inunemorial rules of evidence peculiar to itself. Now, it may be laid down, as a clear and indisputable principle of law, that wherever an Act of Parliament erects a new Judicature, without prescribing any particular rules of evi- dence to it, the Common Law will supply its own rules, from which it will not suffer such new erected Court to depart. This would hold even in matters merely civil, and surely much more strongly in questions of a criminal nature." ** This is not mere theory, but the law of the II m 'ji' ii i J ': ** land, and the general practice of Courts Mar- " tial is conformable to it." " Loi'd Loughborough, in delivering the judg- " ment of the Court, amongst other remarks, thus " expressed himself : — " : • ** In the preliminary observations on the case, " my brother Marshall, (continued the learned '* Judge,) went at length into the history of those *♦ abuses which prevailed in ancient times. This ** leads me to an observation, that Martial Law, ** such as it is described by Hale, and such also as " it is marked out by Sir William Blackstone, •* does not exist in England at all." ** Where Martial Law is established and pre- " vails in any country, it is of a totally different nature from that which, by inaccuracy, is called Martial Law, merely because the decision is by '* a Court Martial, but which bears no affinity to ** that which was formerly attempted to be exer- ** cised in this kingdom, which was contrary to the constitution, and has been, for a century, total- • *• ly exploded. Where Martial Law prevails, the authority under which it is exercised, claims a jurisdiction over all Military persons, in all cir- " cumstances; even their debts are subject to en- " quiry by a Military authority. Every species '* of offence committed by any person who apper- " tains to the Army, is tried, not by a civil judi- ** cature, but by the judicature of the Regiment ' '* or corps to which he belongs. It extends also " to a great variety of cases not relating to the dis- (( (( (( (k (( \l I 1 I <« adg- thus' ■ » (( ;ase, (( rned (C liose « This (( ■^ WT* (( -iaw, so as t( /x«-fc f\ f il .one J • a pre- a 3reiit (C ailed (( Isbj a ty to (< jxer- <( ) the (C otal- • <( ,the t( ns a (< cir- a t en- ' a icies ti per- ii udi- ti lent ' it also (( dis- (( a 113 cipline of the Army, in those States which sub- sist by Military power. Plots against the So- vereign, intelhgence to the enemy, and the Hko, are all considered as cases within the cognizance of the Military authority. In the reign of King William, there was a conspiracy against his per- son, in Holland, and the persons guilty of that conspiracy, were tried by a Council of Officers. There was also a conspiracy against his person in England ; but the conspirators were tried by the Common Law. Within a very recent pe- riod, the incendiaries attempting to set fire to th3 docks at Portsmouth, were tried by the Common I^aw. In this country, the delinquen- cies of soldiers are not triable, as in most coun- tries in Europe, by Martial Law; but where they are ordinary offences against the civil peace, they are tried by the Common Lav/ Courts. Therefore, it is totally inaccurate to state Mar- tial Law as having any place ivhatever, witlmi the realm of Great Britain, But there is, by the providence and wisdom of the Legislature, an Army established in the country, of which it is necessary to keep up the establiahment. The Army being fixed by the authority of the Legis- lature, it is an indispensable requisite of that es- tablishment, that there should be order and dis- cipline kept up in it, and that the persons who compose the Arm} % for all offences in their Mi- litary capacity, should be subject to a trial by their officers. This has induced the absolute ( ' i } 1 ' 1 1 1 li { -1 1 ll ■ I I I i ' I " I i I] 111 1'! {H I 114 * necessity of a JMutiiiy Act accompanying the ' Army. It has happened, indeed, at difl'erent * periods of the Government, that there has been * a strong opposition to the Establishment of the ' Army ; but llie Army being established and vo- * ted, that led to the establishment of a Mutiny ' Act. It is one o])ject of that Act, to provide for ' the Army ; but there is a much greater cause ' for the existence of a Mutiny Act ; and that is, * the preservation of the peace and safety of the * kingdom ; for there is nothing so dangerous to * the civil establishment of a State, as a licentious ' and undisciplined Ar.ny. The object of the ' Mutiny Act, therefore, is to create a ('ourt in- ' vested with authority to try those who are a « part of the Arjny, in all their different descrip- ' tions of officers and soldiers ; and tlie object of ' the trial is limited to breaches of Military duty, ' even by that extensive power granted by the ' Legislature to His Majesty, to make Articles of « War. Those articles are to be for the better ' government of his forces, and they can extend ' no further than they are necessary for the regu- ' larity and due discipline of the Army.'* The second proposition is one of vhal import- ance to all Her Majesty's subjects in this Pro- vince ; and we trust we shall be enabled to esta- blish its soundness, by the following arguments and reasons : — Istly. Because the said pretended Ordinance of the 2d Vic. c. 3, was not passed by the Gover- ^ M 115 ing the ifl'erent as been t of the and vo- Mutiny k'ide for r cause that is, ' of the rous to entious of the )urt in- p are a escrip- ject of Y duty, by the icles of better extend 3 regu- mport- s Pro- esta- mients inance IJover- nor, or person authorized to exeeute the commis- sion of Governor, by and with the advice of Coun- cillors, or the majority of Councillors, in Council assembled, in manner and form as required by the Act of the Imperial Parliament of Great Britain, passed in the first year of Her Majesty's reign, and intituled ; " An Act to make temporary provi- sions for the Government of Lower Canada ;" but was passed by and with the advice of a supposed Council, consisting of persons not appointed in and by virtue of a Commission, or Commissions, issued by Her Majesty, under the Great Seal of the United Kingdom, or of any instructions under Her Majesty's Signet and Sign Manual, and with the advice of her Privy Council ; inasmuch as the said Council, by whom the said first above men- mentioned Ordinance purports to have been en- acted, was dissolved, by Letters Patent under the Great Seal of the Province, issued by His Excel- lency the Earl of Durham, Governor-General of the Province, bearing date on the first day of June, one thousand eight hundred and thirty-eight, and another Special Council was subsequently or- ganized in its stead. The instructions given by Her Majesty, at the Castle of Buckingham, on the fifteenth day of Fe- bruary last past, were set aside by the subsequent Royal Instructions, dated from Windsor, April thirteenth, one thousand eight hundred and thirty- eight; and the Earl of Durham, consequently, dissolved the Council, as it was composed on the u2 I il It i ' t'! 'i 1 I i ; i ; ! i'' f IP I > 1 ■ ■ i 116 first of June last : a proceeding anticipated l)jr your Excellency, as it appears by the letten ad- dressed by your Excellency to each gentleman whom you required to accept the appointment, wherein it is stated that (he appointment teas but provisional^ as the Royal Instructions conveyed to your Excellency, would he revoked and super- seded by those of which the Earl of Durham would be the beanr. We would most respectfully direct the attention of your Excellency to the Proclamation issued by your Excellency, from the Castle of St. Lewis, at Quebec, on the first day of November last, noti- fying the inhabitant! of this Province, that the Administration of Government had devolved upon you, and that your Excellency had assumed the same, wherein is contained the following words : " 1 have, therefore, with the advice of Her Ma- "jesty's Executive Council of this Province, ** thought fit to issue this Proclamation, to make <* known the fame ; and do hereby require and «< command that all Her Majesty's officers and ** ministers in the said Province, do continue in " the due execution of their several and respect- «« ive offices, places and employments.'* It, there- fore, appears evident to us, that, inasmuch as no dissolution of the Council, as constituted by the Earl of Durham, had taken place, and as no re- appointment of the Council, organized under the instructions issued by Her Majesty, on the fifteenth day of February last, had been made, the Coun- s i i 117 tillors by the Governor-General appointed, wer# the Special Councillors by whom your Excellen- cy should have been advised, from the period when your Excellency reassumed the Adminis- tration of the Government of this Province. 2dly. Because the said pretended Ordinance purports to have been passed upon the eighth day of November last, at a time Avhen no Legisla- ture was in session in this Province, inasmuch as the said supposed Council, by the Proclamation of your Excellency, dated at the Castle of Saint Lewis, at Quebec, on the second day of Novem- ber last, was convened to meet on the ninth day of the said month of November, at the Govern- ment House, at the city of Montreal. It is clear that the body, consisting of the Go- vernor and Special Council, being altogether dif- ferent in constitution, from either the consilmm Regis Ordinarium, or the Magnum Consilmm^ and being nought else but a controlled and re- stricted Legislature, must be goveriicd, as far as possible, by laws and usages of Parliaments, whe- ther Imperial or Colonial. "Now, it is an esta- ** blished rule, that Parliament shall be called to ** meet upon a certain day, and at a certain place. ** Faciemus Siimmoneri, etc. . . . ad cerium dieniy " et ad cerium locum, says Magna Charla; and '* the rule is never departed from. It is likewise ** admitted, that Parliament begins at the day to " which it was prorogued, and noi before.^^ Ar- guing, then, by analogy, we contend that the Pro- s^j ■SR91 Mill ' 1 1 J I, • ! » ! U 1 ' ; ■Ha si , , , Ml it^i! 1» .i : ^^ ? I ; 118 clamation of His Excellency, convening the sup- posed Councillors to assemble on the ninth of No- vember last, should have been carried into effect by the assembling of the said supposed Council- lors, to proceed to business upon that day. And this doctrine is founded upon common justice, as the interests of Her Majesty's subjects require that every Special Councillor should have an op- portunity of giving his vote, and declaring his opi- nion upon every question affecting the lives and properties of his fellow-subjects, and the general welfare of the Province ; a privilege which he might be prevented from exercising, by the cir- cumstance of the Council being assembled at a day earlier than that wh^ch was the only day known to him, as the one appointed foi his appearance at such Council. 3dlj'. Because, supposing the said Special Cou^'il to have been legally organized, and duly con\ icd, the Administrator of the Government, with ihe aid of such Special Council, could not pass any law tending, like the said pretended Or- dinance, to set aside the Common Law of Eng- land, and wholly to supersede the mode of admi- nisteriiie: the Criminal Law, hitherto followed in this Province. The position, that no Colonial Legislature can enact any Statute or Ordinance doing away, or interfering with the Common Law of England, has been assumed and ably supported by several learned Jurisconsults. The Attorney General RawHn, thus speaks of the power of Co- 119 the sup- thofNo- to effect Council- r. And jtice, as require 3 an op- his opi- v^es and general hich he the cii- at a day nown to ance at Special id duly nment, ild not ed Or- f Eng- f ad mi- wed in olonial linance n Law ported torney of Co- lonial Legislatures : — " But, on the other hand, it ** cannot be granted that they are capable to en- ** act, at their own pleasure, what they think fit : ** for they cannot, by a law, alter the Common Law *' of England, and the settled course of proceed- " ings thereon. They cannot change the com- ** mon securities of the kingdom." But were we to admit that, in some cases, a Colonial Legisla- ture may depart from this rule, that admission could not impair the truth of our proposition, in- asmuch as the said pretended Ordinance, having lor its object to set aside, in this Province, the Common Law of England, to abrogate the provi- sion of Magna Charta^ to repeal the Statute of the Imperial Parliament of the 25th Edward III, cap. 3, commonly called the Statute of Treasons, together v/ith the divers expositions of that Sta- tute, by different laws enacted since that period, and wholly to destroy the securities common to all the civil subjects of Her Majesty, has been enact- ed in direct contravention of the Imperial Statute of the 1st Vi;.. c. 9: which, in creating that tem- porary species of Legislature, expressly limited its power by the following restrictive proviso : — " Nor shall it be lawful, by any such Law or Or- ** dinance, to repeal, suspend, or alter any ])rovi- " sion of any Act of the Parliament of Great Bri- " tain, or of the Parliament of the United King- •* dom, or of any Act of the Legislature of Lower ** Canada, as now, (then,) constituted, repealling or ^* altering any such Act of Parliament." I ' ', lit'. 'li 5 ' ' ': J i 1 < 'A \ i i 1 L 120 In oue word, the passing of the said pretended Ordinance has presented the strange anomaly of a subordinate Legislature, setting aside an import- ant portion of that Charter to which it owes its ex- istence. But it were vain to dwell longer on a point so fully discussed, when the Imperial Par- liament declared the illegality and absolute nullity of a proceeding somewhat similar in character, though bearing no comparison with the supposed Ordinance now under consideration, in regard of the disastrous tendency of the latter enactment* 3d Proposition i—^That the said pretended Or^ dinance, supposing it to he legal, cminot be so con- strued as to extend the controul of Courts JUartial, or of any Military Trihunal organized in virtue thereoft to the case of the Prisoners, To support this proposition, we have only to state, that seve- ral of the Prisoners were in the custody of the Ci- vil Authorities, previous to the proclamation of Martial Law by your Excellency, on the fourth day of November last, and that all had been arrest- ed before the passing of the said pretended Ordi- nance. If, therefore, the said pretended Ordinance were made to extend to them, that enactment must evidently be retroactive and retrospective, which may not be the case with a penal law. This principle stands recognized by the Jurispru- dence, not only of England, but likewise of all other civilized countries. In England, the rule and law of Parliament are, that : " J^ova conslitu- 121 tended laly of mport- its ex- r on a d Par- nullity racter, )posed aid of ent* ed Or' w con- ariial, virtue jpport ; seve- he Ci- on of fourth irrest- Ordi- nance tment ctive, law. ispru- of all i rule islitu- " Uo fuiuris formam debet imponere ; twn prmle- ** ritts.^* La Lot ne dispose que de Vavcnir ; elle H^ a point d^effet retroactif. Such is the rule laid down by the second article of the Hire prelimi- naire de la publication des lois^ the result of the sage deliberations of the most learned French Ju- risconsults. And, indeed, it would be a mon- strous doctrine, that a criminal Statute should have the effect of an expost facto Law. This doctrine is most strongly and pointedly upheld by a learned Barrister, {Paca, in his argument re- ported in Chalmer's opinions, to the following ef- fect :) — " It is an established rule of law, that " statutes have no retrospect ; they look forward " only, and prescribe for the time to come : for, " upon no principle of natural justice, can a man's " actions fall within the cognizance of a law made " and enacted expost facto" The following au- thorities are equally conclusive on this point : — " And not only is it the doctrine of the English " Law, that a statute is not to have a retrospective " effect ; but it is also founded upon the principles *• of general Jurisprudence. A retroactive statute " would partake, in its character, of all the mis- " chiefs of an expost facto law, as to all crimes " and penalties, and in matters relating to con- tracts or propert}^, would violate every sound principle. JSfo act or omission done or made be- fore the promulgation of the lata which forbids it, can be punished as an off'ence,^^ (( (C (( f i!!|!' ^ 111" P. vhen a copy of the charges alone was furnished them. That a list of the witnesses and of the Members of the Court should be so furnished in all cases, is laid down as an axiom by Tytler ; and although other writers on the constitution and practice of Courts Martial, deny the correctness of the doc- trine in its fullest extension, yet are they all una- nimous in declaring that, in cases of High Trea- son, these advantages must be extended to the accused. In fact, the Statute passed by the Im- perial Parliament, in the 3d and 4th years of the reign of Queen Anne, chap. IG, expressly pro- vides, that persons tried by Court Martial shall have the benefit of the Act for regulating trials in cases of Treason and misprision of Treason ; the Statute therein alluded to, being the 7th Anne, «hap. 21, which provides, that all persons indict- ed for High Tn ason, or misprision of Treason, shall have, not only a copy of the indictment, but <-\\ :> I I :^ fii i ) 12S a list of all the witnesses to be produced, and of the Jurors impanelled, with their professions and places of abode, delivered to them ten days before the trial, and in the presence of two witnesses, the better to prepare them to make their challenges and defence. Not only yvere the Prisoners kept in total igno- rance of their approaching trial, until three days previous to their arraignment ; but no list of the witnesses to be produced, no intimation of the names or qualifications of those who were called to decide upon their fate, was ever communicated to them. These restrictions were, in their case, pecu- liarly oppressive, inasmuch as being all, with one .single exception, inhabitants of the parish of Cha- teauguay, situate on the southern shore of the Saint Lawrence, and the day following that on the evening of which they were notified for trial, being the Sabbath day, they could scarcely communi- cate with any of their relatives, before the awful hour of arraignment had arrived. If, struggling against such disadvantages, they succeeded in convicting the principal witness produced against them, of the most glaring perjury, and in impeach- ing the testimony of another, might they not, we humbly ask, (had the privileges which, by law, they were entitled to, been extended to them,) have found means to impeach all the witnesses of the Crown, with equal success, and set at nought the whole of the evidence adduced against them ? I .-^l 129 and of ms aiul before ies, the llenges il igno- e days of the of the called licatcd pecu- th one f Cha- bf the on the being nmuni- awful angling ed in gainst )each- >t, we law, hem,) jes of ought lem? We ask if it was not possible? — From informa- tion obtained since the trial, we deem it more than probable, that such would have been the re- sult. The mere possibility of success, had a list of witnesses been furnished, renders the with- holding cf such list, we do not say illegal, (for it is so in fill cases,) but, in this instance, highly un- just. The Prisoners have a complaint equally grievous to make, on the ground of no list of the Members of the Cojrt having been fin'nis>hed to (hem, inas- much as they have been thereby stripped of a privilege which is never denied to the meanest soldier in the ranks, hov/ trivial soever may be the offence he is arraigned for : we mean the right of challenging the individuals who may be called upon to judge him. 3dly. During the course of the trial, several Members of the Court absented themselves, on various occasions, during the examination of wit- nesses, and on returning, resumed their seats. These facts are established by the affidavits here- with produced, and respectively marked : A, 13, C, D. The circumstance of the Members alluded to having so absented themselves, although each withdrew but for a short period of time, is, of it- self, sufficient to annul the whole proceedings; and, in support of this position, we respectfully beg to quote the following passage from Simmon's Constitution and Practice of Courts Martial, page 175, Ed. 1835 : — " As it is essentially necessary I' 1, ^ ' !i ; 'li 132 othly. On the same daj', the PriiL oners, before proceeding to adduce evidence in their behalf, moved for the immediate discharge of Louis Le- siege, otherwise called Lesage dit Laviolette, on the ground that no legal evidence having been adduced against him, the eleven remaining Pri- soners were, in law, entitled to the benefit of his testimony, which they alledged to be material to them, in their defence. The IMotion, (2) which was rend, and appears on record in the cause, was not granted, although the legality thereof was sup- ported by a precedent so precisely in point, that we deem it advisable to quote it at full length : — Petersdorf^s Mridgement, verbo Martial Law and Courts Martial^ 2, JSlaff'ord^s case, H, T, 1801, K. B. 1 east, 306 :" " The Mutineers of the ** Bounty were tried by a Court Martial, at Ports- ** mouth. There beins: no evidence a^rainst one " of the persons accused, it was insisted, on the *• part of another of them, that he had a right to « examine the first on his behalf. The Courts «* however, by the advice of the Judge-Advocate, «* refused to let him be examined, saying, the prac- «* tice of Courts Martial had always been against «< it ; and the prisoner was condemned to death : " but, upon the sentence btiing reported to the «< King, execution was respited till the opinion of «• the Judges was taken, who all reported against " the legality of the sentence, on the ground of (2) Ste tht Tiial. , 133 ers, before leir behalf, Louis Le- iolctte, on ivir.g been laining Pri- lefit of his material to , (2) which cause, was of w as sup- point, that I leni^th : — rtial Law ise, H, T, eers of the 1, at Ports- gainst one ed, on the a right to 'he Courts Advocate, , the prac- len against to death : ted to the opinion of ed against grouiid of ** the rejection of legal evidence ; and the party ** was afterwards discharged." The imperative justice of grmting such applications is so evident, that it would be idle in us to dwell on the subject ; suffice it to say, that the practice of Courts of Law, founded on reason, have ever been ready to grant motions of that nature, in order that the prosecutor may, in no case, be allowed to deprive a party accused, of his witnesses, by indicting them conjointly with him. The only reason offered by one of the learned Judge-Advocates, in support of the decision of the Court, respecting this motion, was that there appeared on record the testimony of one witness, tending to implicate Lesiege ; while, in Stafford's case, cited by the Prisoners as a precedent, no evidence had been adduced against the individual whose discharge had been demanded. But, it is indisputable, that, in a mat- ter of this nature, where the evidence of two cre- dible witnesses is required to convict the accused, the maxim of the Civil Law, ^^imus testis, .ullus testis,''^ must apply, and that the statement of one witness, even when unimpeached, (and the testi- mony of the witness now referred to was, in many respects, so palpably false, as to elicit against him severe animadversions fjom the same learned Judge-Advocate,) cannot be regarded otherwise than as a complete nullity. Moreover, in the case of Mu? /ratt and others, referred to by Simmons, in the work above cited, p. 430, the sentence pas- sed upon Muspratt by the Naval Court Martial, ■■ r f r V f i 1 1 1 1. •> ■- ,i'^ 1 ^ri 134 before which he was arraigned, with nine others, for .Mutiny, was set aside, in consequence of the Court having refused to discharge two of their number, Byrne and Norman, in order that Mus- pratt might call them as witnesses ; although the evidence for the prosecution had affected Byrne And Norman to a certain extent, but not material- ly ; and in declaring the illegality of the sentence, in so far as it concerned Muspratt, the twelve Judges of England were unanimous, as well as in Stafford's case. 6thly. In trials of Court Martial, it is necessary that every question, whether originating with the prosecutor, the prisoner, or a member of the Court, should be entered by the Judge- Advocate on the record of the proceedings. {Vide Sim- mons, p. 189.) This practice was departed from throughout the whole course of the trial of the Pri- soners ; and thus, many questions which tended to ©licit answers favourable to them, were rejected without any formal deliberation ; and the strenu- ous efforts made by their Counsel to procure the enregistration of such questions, proved unavail- ing. Had such questions been recorded, on a re- viiion of the proceedings, it would have been ob- vious whether their rejection was justifiable, or not. That such was the illegal practice followed dur- ing the trial, is established by affidavits of the Counsel who assisted the Prisoners. It would be too tedious to insert, in a document like this, all ■■\,-f..^. 135 others, e of the of their at Mus- ugh the I Byrne laterial- ;ntence, twelve i\\ as in cessary ^ith the of the dvocate e Sim- id from he Pri- ided to ejected strenu- ire the mavail- n a re- en ob- )le, or d dur- of the uldbe nis, all the questions so proposed and rejected ; but the undersigned Counsel, if required, can produce the greater part of them. We might dwell upon the illegality of the proceedings in various other in- stances, such as deliberations held and judgments rendered by the Court, subsequent to the hour of four in the afternoon, in direct contradiction of the Statute, the fact of the examination of one of the witnesses of the Crown having been carried on in a whisper, between the witness and the inter- preter, through whose medium alone the answers of the former were conveyed to the Prisoners; but we feel confident that the statements which we have already fairly and conscientiously made on the subject, are more than sufficient to convince your Excellency of the correctness ofour last pro- position. It will, doubtless, be urged, by the learned Gentlemen who have superintended the proceedings upon this trial, that the Court by which the Prisoners were tried, is not an ordinary Court Martial, but a tribunal of a novel character, the mere creature of the Ordinance, arbitrary in its proceedings, and wholly untrammelled, either by the Articles of War, or the Common Law ol the land. It must appear strange that we should antici- pate, from those learned Gentlemen, an argument so monstrous in its nature, so disastrous in its ten- dency, founded, as it is, upon a denial of the first principle of legal liberty, that offence, and trial, ' •I li lit: 136 and punishment should be fixed ; and strange it would be, passing slramre ! had we not heard it urged sufliciently often to obviate all possibility of misconception on our part. We have now concluded (his tedious examination of the trial of the Prisoners, a task which we have imposed upon ourselves, not only from a sense of the imperative duty we owe our clients, whose lives may depend upon our exertions, but also from a deep and hearlfelt conviction that, in fulfil- ling that duty, we would be vindicating, at the same time, the majesty of the law, which has been trampled upon, and asserting the rights of the subjects, which have been perilled by the danger- ous precedent established in this case. In the performance of that task, we have abstained from exercising the ingenuity of the Advocate, and have taken an impartial view of the matter, guided solely, as we have been, by the unquenchable light of reason ; for the broad principles of Law we have invoked, cannot be said to rest on any other foundation than on those feelings of justice and humanity, which the Supreme Ruler of na- tions has implanted in the breasts of all men. We trust, that under the guidance of these rights, we have succeeded in convincing your Ex- cellency of the correctness of the propositions we set out with, and in establishing, beyond a sha- dow of doubt, that the proceedings had in refer- 137 enee to the Prisoners, have been illegal, unconsti- tutional and unjust. If so, our object is attained." (Signed,) A. P. Hart, Lev/is T. Drummond, Attornies. Montreal, 20th December, 1838. District OF Montreal. Affidavits produced in support of the above Pe- tition, (A.) DoM. Regina, vs. Joseph N. Cardinal et al. " Lewis Thomas Drummond, of the city of Montreal, Esquire, being duly sworn, deposeth and saith : — That the Exceptions, (3) whereof a true copy IS hereunto annexed, were, to the best of his be- hef, fyled by Joseph N. Cardinal and his fellow- prisoners, when arraigned before the Court Mar- tial, which tried them for High Treason, and be- fore pleading to the merits of the atscusation pre- ferred against them ; and that, as the Deponent understood from one of the Deputy Judge Advo- cates of the said Court Martial; the said Excep- tions which were overruled, appear upon the Re- cord of the said Trial. (3) See the Trial. 11 I'm U'.f i 1^ 1 i 168 Anil further tlie Deponent saith upt, and katli signed, the present Deposition having been read to him." (Signed,) Lewis T. Drummoxd. Sworn before me, at Montreal, this 12th day of December, 1838. (Signed,) F. E. Leclere, J. P. U (B.) Province ^ Dom. Regina, OF } VS. T^ower-Canada. ) Joseph N. Cardinal et al. " Andre Romuald Cherrier, of the city of Mon- treal, Student at Law, being duly sworn, deposeth and saith : — That being present in Court, on Saturday, the first day of December instant, during the trial of the said Joseph N. Cardinal and others, he saw one of the Members of the Court, who was seated next to the President, on the left of him, the said President, (but whose name is unknown to this Deponent,) rise and withdraw from the Court for a short period of time, during which the examina- tion of one of the witnesses for the prosecution was continued, and evidence taken and recorded. That on his return, the said Member of the Court resumed his seat. That on Wednesday, the fifth day of December instant, the two Members of the ■.^ 139 Court, then occupying the first and second places •n the right of the President, absented themselves from Court for a period of time not less than fif- teen minutes, during which the evidence went •n uninterruptedly, answers having been given and recorded during their absence ; and on return- ing, the said two Members lastly alluded to, re- sumed their seats. And further the Deponent saith not, and hath signed, the present Deposition having been read to him." (Signed,) Andre Romuald Cheurier. Sworn before me, at Montreal, this 12th day of December, 1838. (Signed,) P. E. Lkclere, J. P. (C.) District ) Dom. Regina, Montreal. ) Joseph N. Cardinal et al. «* Lewis Thomas Drummond, of the city of Montreal, Esquire, Advocate, being duly sworn, deposeth and saith : — That during the course of the trial of Joseph N. Cardinal and others, a certain Protest, where- of a true copy is hereunto annexed, was present- ed to the said Court Martial by the Prisoners, '[f ,i|!|^^ 140 previous to entering upon their defence, and re- jected by the said Court Martial, the President refusing to allow the said Pjolci^t to be entered upon the Records of the Trial. That during tho Trial, several of the Members of the Court Mar- tial absented themselves from the Court for short periods of time, during which the examination of witnesses was carried on uninterruptedly. That on returning, the said Members of the said Court resumed their seats respectively. And further the Deponent saith not, and hath signed, the present Deposilion having been read to him." (Signed,) Lewis T. Drummond. Sworn before me, at Montreal, this 12th day of December, 1838. (Signed,) P. E. Lecleue, J. P. (D.) Province ) Dom. Regina, OF > vs. Lower Canada. ) Joseph N. Cakdinal & al. " Pierre Moreau, of the city and district of Montreal, Esquire, Advocate, being duly sworn, deposeth and saith : — That he acted as Counsel for the Defendants in the above named cause, and assisted them before the Court Martial which tried them, between the twenty-eighth day of November last, and the sixth 141 • day of December instant. That he was present in the said Court during the whole course of the said Trial, save during an absence of a few hours on the first day, and not more than a few minutes on any one of the subsequent days of the saidTri-- al. 'J'hat the questions proposed by this Depo- nent and the other Counsel employed by the Pri- soners, were not, nor v/as any of them, enrcgis- tered on the Records of the said Trial, previous to being submitted for the approval of the Court. That several questions were proj)osed by the De- ponent, and by his brother Counsel, on behalf of the Prisoners, which this Deponent deemed per- fectly legal, and such as would have been unhesi- tatingly admitted before the ordinary Tribunals, and which, moreover, had a tendency to elicit an- swers favourable to the said Prisoners ; but the said questions were rejected. And the Deponent hath signed." (Signed,) Pierre Moreau. Sworn before me, at Montreal, this 12th day of December, 1838. P. E. Leclere, J. P. N.B. — We are compelled, by circumstances, to suppress several other Documents, which should have found their place here, and were, in fact, printed, to form a portion of this Pamphlet. {jXote of the Author.) ',«»'■