s^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 1.1 ■tt lii 122 ^ U£. 12.0 I : ■ " — Ill '-4 III 1.6 ^ 6" ► Photographic Sd^ioes Corporation as WIST MAtN t^MIT WmSTIil,NY. wi9IO (716)l/2/i03 .^'^^ ^. v\ ^ 4^ 1 CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Instituta for Historical IMicroraproductions / Inatitut Canadian da microraproductions liistoriquas Technical and Bibliographic Notas/Notat tachniquas at bibliographiquaa Tha Instituta has attamptad to obtain tha bast original copy availabia for filming. Faaturas of this copy which may ba bibliographically uniqua, which may altar any of tha imagas in tha raproduction, or which may significantly changa the usual method of filming, are checked below. n D D D D D Coloured covers/ Couverture de couleur I I Covers damaged/ Couverture endommagte Covers restored and/or laminated/ Couverture restaurte et/ou pellicuMe I I Cover title missing/ Le titre de couverture manque I I Coloured maps/ Cartes gdographiquas en couleur Coloured ink (i.e. other than blue or black)/ Encre de couleur (i.e. autre que bleue ou noire) I I Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur Bound with other material/ RaliA avec d'autres documents Tight binding may cause shadows or distortion along interior margin/ La re Mure serr^e peut causer de I'ombre ou de la distortion le long de la marge inttrieure Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches ajouttes lors d'une restauration apparaissent dans le takte, mais, lorsqua cela Atait possible, ces pages n'ont pas At6 filmies. Tl to L'institut a microfilm4 le meilleur exemplaire qu'ii lui a 6X6 possible de se procurer. Les Q<;tails da cat exemplaire qui sent peut-Atre uniques du point de vue bibliographique, qui peuvent modifier une image reproduite, ou qui peuvent exiger une modification dans la mAthoda normale de f ilmage sont indiqute ci-dessous. □ Coloured pages/ Pages de couleur □ Pages damaged/ Pages endommag^es r~rK Pages restored and/or laminated/ Pages restaurtes et/ou pellicultos Pages discoloured, stained or foxed/ Pages dicolories. tachat^es ou piquies Tl P< o1 fll O b< th si oi fll si oi □ Pages detached/ Pages ditachies 0Showthrough/ Transparence Transparence Quality of print varies/ Qualiti SnAgala de I'impression Includes supplementary material/ Comprend du material supplAmentaire Only edition available/ Seule Edition disponible Tl St Tl w M dl ei b( rii rs m D Pages wholly or partially obscured by errata slips, tissues, etc.. have been refilmed to ensure the best possible image/ Les pages totalement ou partiellement obscurcies par un feuillet d'errata. une pelure, etc.. ont M filmtes k nouveau de fa^on A obtenir la meilleure image possible. Additional comments:/ Commentairas supplAmantairas; Soim pages art photortproductkHW. This item is filmed at the reduction ratio checked below/ Ce document est film* au taux de reduction indiquA ci-dessous. 10X 14X 18X 22X 28X aox y 12X 16X aox a4x 28X 32X Ills lu iifier ine age The copy filmed here hat been reproduced thanka to the generoaity of: Library of the Public Archives of Canada The imagea appearing here are the best quality possible considering the condition and legibility of the orifjiriii copy and in iceeping with the filming contract specifications. L'exemplaire fllmA fut reprodult grAce i la gAntrositA de: Lb bibliothAque des Archives publiques du Canada * Las Images sulvantes ont At* reprodultes avec le plus grand soln, compte tenu de la condition et de la nettetA de rexempiaire filmA, et en conformity avec les conditions du contrat de fiimage. Original copies In printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or illustrated Impres- sion, or the bacic cover when appropriate. Ail other original copies are filmed beginning on the first page with a printed or liiustrated impres- sion, and ending on the last page with a printed or liiustrated Impression. Les exemplalres originsux dont la couverture en papier est Imprimte sont filmte en commenpant par le premier plat et en termlnant soit par la de^nlAre page qui comporte une empreinte d'impression ou d'illustration, soit par le second plat, salon le cas. Tous les autres exemplalres originaux sor«t filmis en commen^ant par la premiere page qui comporte une empreinte d'impression ou d'illustration et en termlnant par la dernlAre page qui comporte une telle empreinte. The last recorded frame on each microfiche shall contain the symbol — '^- (meaning "CON- TINUED"), or the symbol V (meaning "END"), whichever applies. Un des symboles sulvants apparaftra sur la dernlAre image de cheque microfiche, selon le cas: le symbols -^ signifle "A SUIVRE". le symbols ▼ signifle "FIN". Maps, plates, charts, etc., may be filmed at different reduction ratios. Thoae too large to be entirely included In one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les certes, planches, tableaux, etc., peuvent Atre fllmte A des taux de reduction diff Arents. Loisque le document est trop grand pour Atre reprodult en un seui cllchA, II est fllmA A partir de i'angle supArleur geuche, de geuche A droits, et de haut en bas, en prenant le nombre d'Images nAcessaire. Les diegrammes sulvants iilustrent la mAthode. ata Biure, A 3 BX 12 3 1 2 3 4 5 6 mimmB OF At a Court of Oyer and Terminer, appointed for the Investigation of Cases from tlie INDIAN TERRITORIES: HELD BY ADJOURNMENT AT Ql-'EDEC, IN LOWER CANADA, Stst OCTOBER, IS19, At \Thich tlie follow'ng Gentlemen, Parlners? of, and connected wilh, THE NORTH WEST COMPANY, viz. ARCHD. N. McLEOD, JAMES LErTH, HUGH McGILLrS, SIMON FRASRR, ALEXR. MACDOXELL, ARCHD, McLELLAN, And JOHN SIVERICHT, TFko were under Accusation hij the EARL OF SELKIRK, «9 Private Prosecutor, for great Crimes nml Offences, alleged to liave bceti by ihcm coinmitted, m.idc tbeir apiicarancc, ii\ pursuance of official noticira given to both parties, and (lematided tlieir trials, vliich they could not ob- tain, because The Private Prosecutor zcas not rmdj/ : with the Jpceclies of counsel, the arguwenfs held on the occasion, and the Decision gircn thereon, PBOM MINUTES TAKEN IN COURT. 2^ulli vendcmus, nuUt >^Er,jDTM us aut DiFFEREMUs.justitiam vel rednm. Magna Ciiarta, Cap. 29. MONTREAL: PRINTED BY WILLI \M GRAY, 18 19. 1-/070 I , 'njmmmomi^mmo n. - •■*^" tf « As a sequel to tlic '' Procccdiiuv ; coinicclcd with the disputes between the E;Vi ! of Sell afi a and (he North West Company at the as.-^'izcs at Yoik in Upj)er Canada, in October J8lS/' and = a ])re.liininary io w\at it may be deemed expe- dient to ]ay before the public" liereafter, the fol-^ iowing rep rt will mo^;! foreil)ly demonstmte the anxiety with which tlic Kortli West Company kI have been from fhp '"^•i^jn'^nccment in invest iaati- arc nnd have been from the eojumcnccment J8l(), continually pressiijo-for a le^al invcstini on jn(o their conduct, the Earl of Selkirk^! taKen advantaiic oft) and i las leir unexampled forbearance, n numerous publications, dissejuinated wit!i industry of implacable mali^;iuty, has con- all 1) (inued to represent tlic nriis" v/ho i\Q^,r:i\ or evaded the J. condrued their silence into an acq 1 ni as " atrocious crimi- ruv, and has uiustcncc \\\ umnifxK; clu.r-es. On the otiicrhand tl )e on^j- Wished to f Koilh \Vest Comj)an3 ^i^ve all aL...^^ J|i-Ui(y themselves by appealin- to llic laws o ineir country, convinced, as has been (he case, mat luii Lorddijp's Jibelluus accusations must tlien ineviloblv S"!! -1 :, \ iv. ■^ • inevilably recoil upon ilieir author. After all their cxerlions to obtain this object, they found themselves scarcely arrived at the threshold of in- vesti»'ation by the acquittal of the few persons >vho had the good fortune to be tried at Yorkj, ^ "when Lord Selkirk abandoned the contest, and fled aNvay to pursue similar manoeuvres in another liemisphere to those he had practiced here. He left, however, his victims labouring not only under the unmerited obloquy of the crimes of which he had accused them, but also under the charge of eva- ding, avoiding, and delaying legal process ag-ainst them. The impartial reports that have been published of the few Ic^l proceedings that have taken place, form a sufficient answer to the accu- sations themselves, and to repel the charge of de- siring to evade justice, it is c.'y necessary to state that, independently of repeated and constant attendance of almost all the accused in every Court and at every Session in the district of Montreal, in the district of Quebec, and in Upper Canada, where their cases could be legally tried, the me- morials and applications to government have been so numerous, that the bare specification of their dates can not fail to strike with astonishment. - In September, 1816, a memorial.was presented on behalf of all the gentlemen w ho had been ar- rested at Fort William by the Earl of Selkirk in the preceding month, ' ' In the same month, one on behalf of Boucher and Brown, charged as principals in the battle at Red River of the 19t . of June, 1816. In December, one separately on behalf of James Grant, a partner of the North West Com- pany, >Yho came down afterwards. In ■»■■• ^. 7^ i ,/- ^Vl V. '■> In March, 1817, all tlicse applications were rc« newotl, and I rials most prcssiugly urged. In June, {817, o\vin\j;to the delays in tlii.^ pro- vince, a memorial yvas pregented in the hopes of obtaining;' in Upper CV.nda all the trials wanted, including- those of Gcori»e Cainpbell and others of Lord Selkirk's settlers accused by him. In August, 1817. a special memorial to obtain the trials of Archibald McLellan^ and James Leith, in Upper Canada, In September, 1817, a memorial praying for the trial of Hector Macdonald, andolhery of Lord Selkirk's settlers accused by him. In December I- 17, a special and urgent me- morial was presented to obtain the triaU of Archibald McLellan, Cuthbert Grant, and otliers. In January 1S18, one for the trials of Seraphim Lamarre, Peter Pangman dit BostoLais, J. B. Desmarais, and Hector Macdonald. In February 1818, one ior the speedy trial of George Campbell in particular, and again. In the same month, a general memorial pray- ing for the speedy trial of al! the parties accused. In March 1818, a memorial on the same grounds as before, praying that all the trials might be had in Upper Canada. In June iS18, strong remonstrances were made to the crown oiiiccLs and to government, respecting the vexalio..* delav that had taken place, in reply to which the iorney generul gne as a reason for tho?«;e delays ^.^t'nhe private *' prosecutor, the I'arl of Selkirk atone possessed "^ the evidence in support of these p«'osecuL us."! In October, 1818, when Hia Gtace the la to Duke »i. r i' Duke of Richmond became Governor, these re- monstrances were repeated, and re-urged. In November, 1818, the memorial to His Grace, which formed the basis of the proceedings now reported, - was presented, and the appoint- mf'nt of a Court in consequence of the same, together with the subsequent attempt made on be- half of the Earl oi Selkirk to put it off, is detailed in these pages. In October 1819, the memorial which produc- ed the final answer given by his Honour the President, that a Cour^ would be holden at Quebec on the 2 1 St of October for the investigation of cases from the Indian Territories, where the par- ties interested must seek legal course and redress; and On the 30th of that month, immediately after the close of this session, re in/ectd, another me- morial was laid before government, repeating the complaiiit of delay, and prayinr for redress. Of the redress which the North West Com- pany have hitherto obtained, the public may now form some judgement. Montreal^ December^ 1819. t 4 % "**-' i^iil. f X-' Jil-' • "» District of! Quebec Seion ot a COURT of OYl^R and TERMINER^ & GENERAL GAOL DELIVERY, as well for the District of Quebec^ as for the Indian Territories^ under a Com- mission dated 29th Aprils 1818*j and continued by Adjournment until Thutsdai/, 2Ut October, 1819. His Honor Chief Justice SeweIl, and Alexis Caron, Esquire^ King's Counsel, ' Jt].AyiNG taken their seats as Commissionen, and the panoel oi the Grand Jury having been called over, a number of gentlemen, under accusation, for o£fencei alleged to have been committed in the Indian Territo* Ties, came into Court, and their appearance was enter- A ed * See Copy of the Commission, Appendix A. ^ ed of record by consent of the Solicitor General^ Charles Marshall, Esquire, (acting iii the absence of the Attorney General,) namely, Archibald Noiiman McLeoD| James Leith, Alexander Macdonell, Archibald McLellAn, HuGi: McGiLLis, and Simon Fraseh, and Mr. John Siveright, Writer. After which the Court adjourned until Saturday th» gSd October. I EsquireS) part- ners of the North West Company, SATURDAYj 23d OCTOBER, FiltSENT AJS BEFdRE^ Upon tiie Court being opened, it was ascertained that tKdxt Grand Jurors were present. The Chief Justice intimated to them, that " tliey were again called to per- " fdrm the duties of Grand JurorS, under the Cbihmis- « sion which formerly tried Charles De Reinhard, and " that (a competent number of their botly being in « Court) fiills of indictment, relative to offences alleged " to have been committed in the Indian Country, being << to be laid before them, was the cause of their being " called upon." Mr. Solicitor General presented two Bills of Indict- ment to the Grand Jury, W"0 stated by their foreman to ^ io the Court, that some hesitation was felt as to proceed- ing upon any bill of the importanc e of those laid before them, with twelve jurors only, and wished steps t(/ be taken to ensure the attendauce of a larger number. The Court, having intimated its acquiescence, was then ad- journed till Monday the 25th October. MONDAY, fSth OCTOBER, PRESENT AS BErORE. The Court being opened, some conversation took place relative to the number of the Grand Jury who were present, and an application made ^t the i tunce of Ffter Buai{ET, Esquire, to be excused from serving on this Grajul Jury, he being the |brotIier-in-law of Archibald P^orman McLeod, Esquire, was acced- ed to by the Court. The attendance of fourteen of the Grand Jury appearing to be secured, a wish that six- teen Ct^ld be obtained, was expressed by the foreman. The Chief Justice recommended them Uy commence an examination of the bills in their possession, and if diffi^^ culty presented itself, to communicate it to the Court, who would then take effective measures to secure the attendance of the absentees. This idea being adopted^ the Court was adjourned till two o^clock the next day. TUESDA . i TUESDAY, 26th OCTOBER, 1819, VBESBNT A8 BEFOBE. The Court being opened, the Grand Jury entered, and returned True Bills of Indictment against the foU lowing individuals in the service of the Hudson's Bay Company, and the Earl of Selkirk, viz.— *^ for an assault William Williams, John Clarke, John McLeod, Joshua Halcro, Frederick Matthey, Jacob Vitchy, Jacob Welling, Jacques Orchet, Bernarp Re, dit Mayangb, Jacques Bin, Jean Brussel, and Jacques Scbnider, I and false im« Srisonment of ohn Duncan Campbell, and Benjamin Fro- bisher, Esqrs. I partners of the iNorth West I Company, and I several of their ' servants at the Grand Rapid in the Indian Territories, on the 24th of June last. And '^1 , 4 n o, on of Akd 4.HO Against the Same Parties, — for an assault and false im- prisonment of Angus Shaw, John George McTavish,and Wm. Mackin- tosh, Esquires, partners of the North West Company, and several of their servants, at the same place on the 26th of June fast. Mr. Solicitor General acquainted the Court, that he liad no further business to lay before the Grand Jury, but that Mr» Sluart (who was not in Court at that mo- ment) had a motion to submit which might lead to some discussion, though in his opinion it was one which tlie Court would not find itself able to entertain. The Chief Justice enquiring the nature of the motion, the Solicitor General stated, that it went to the discharge of certain gentlemen from recognizances, about which, as he con- ceived, the Court could know nothing, although he would admit that they were in existence ; as also that the gentlemen had appeared in this Court, and their doing so was entered of record. The Chief Justice then informed the Grand Jury, that they were discharged from further attendance, and the Court adjourned till Thursday the 2Bih October. THURSDAY THURSDAY, 28th OCTOBER, PRESENT AS BEFORE. Mr. Vanfelson stated to the Court, that they intended to submit a motion, or motions, for the discharge of se-* veral gentlemen ; that having been compelled to be up late last night, preparing the papers necessarj to be filed on the occasion, the motions were not yet put in writing ; but that the Solicitor General had consented that the motions should be put in after, and that the ar- gument upon them might proceed. Chief Justice Sewell. — ^We must sec the motion. Is it their discharge from recognizances to appear in this Court thf^t you move ? Solicitor General, — If it is, I have no objection to it. jl/r. Stuart. — Our motions will be, that several gen- tlemen now around me be discharged from their recog- nizances, their appearance being of record in this Court ; the circumsta Tees of their cases differ, but each appli- cation will be supported by affidavits. The first in or- der is the case of Archibald Norman McLeod, Esquire, and our motion generally is, that he be discharged from flwy recognizance under which he may be. Solicitor General— I wish rightly to understand the motions, because if simply to a discharge from this Court, I have no objection ; but if beyond that, I do not consent. Indeed I do not suppose your Honours sitting lilting only as Commissioners of a Court of Oyer and Terminer— Mr, Valliere, — ^And of General Gaol Delivery. Solicitor Gtneral. — Admitted. But it is certainly useless to apply to this Court to exercise a power over recognizances which, takeh in another jurisdiction, can not Hy possibility be within its scope. It appears to me to be idle to talk of discharging from obligations to ap- pear at York in Upper Canada, or in another district of this Province, Montreal for instance, or even from ano- ther Court in this very district, by a Court of Oyer and Terminer, and General Gaol Delivery for ^the district of Quebec. Mr. Vmfelson. — ^We will state reasons to the Court in support of thie motion. Chief Justice. — We must see the motions intended to be made. If they are not here, you are not ready. Mr, Valtiere. — The affidavits in support of our mo- tions are here, (those ex parte Archibald Norman Mc' Jjeodf were handed to thte Court,) and we move for the discharge of Archibald Normaa McLeod, Esquire, and other gentlemen, who are under recognizance, from their bail ; and we shall also move that those who have made appearances which have been entered of record in this Court, be discharged by proclamation. The affidavits now before your Honours, are to substantiate, that Ar- chibald Norman McLeod is under recognizances, from which we move his general discharge. The recogniz- ances I believe are admitted by my learned friend, the Solicitor General, although not exhibited here. Solicitor GeneraL'-^l have no objection to say, that in A in point of fact, recognizances have been taken, but thd simple point upon which I will resist the application, i«| that this Court, in my humble opinion, cannot release persons from recogriizances not taken bj its authority^ I will consent to their discharge, except as they may be bound to appear in other Courts ; indeed, there beirtg nothing against them here, a motion for their discharge appear^ to me to be completely unnecessary. Mr. Valliere.^^OuT motions are now reddy, and I ivill read them and file the affidavits. Exparte^ Archibald Nbrman McLeodl. MOTION.— That inasmuch as Archibald Normdn McLeod, a person bound by recognitance, to appear when and wheresoever he may be legally required to an- swer to two certain bills of indictment found against him, and divers others persons at the Court of Oyer and Terminer and General Gaol Delivery, holden in and for the district of Montreal, on the Slst day of F^e- bruary, 1818, and continued by adjournment until the l6th day of May following, one of which bills is for con- spiracy ; and the other charges the said Archibald Nor- man McLeod, as accessary after the fact^ to the murder of Robert Semple, Esquire, has appeared in performance of such his recognizance, and nothing has been objected against the said Archibald Norman McLeod, on the part of our Sovereign Lord the King, the recognizance of the said Archibald Norman McLeod; and of bis bail in that behalf, be discharged. Ex parte 9 Ex parte James Leith. MOTIOr^.— That inasmuch as James Lcith, a per- son bound by recognizance to appear personally at the Court of King's Bench, for the district of Montreal, and also at any Court of Oyer and Terminer, to be held in the district of Montreal, or in any part of the provinces of Upper or Lower Canada, where crimes and offences committed in the Indian territories may legally be heard, tried, determined and judged, has appeared in this Court in fulfilment ot the condition of such recog- nizance, and nothing hath been or is objected against him on the part of our Lord the King, the said James Leith and his bail, in this behalf, be now discharged from the said recognizance. 1 Ex parte Hugh McGillis, Alexander Macdonell, Simon Eraser, and John Siveright. MOTION.— That the said Hugh McGillis, Alexan- der Macdonell, Simon Fraser and John Siveright, be re- spectively discharged by proclamation, if nothing bt- objected to them on the part of our Lord the King. parte 10 A MOTION was likewise made Ex parte Archibald NcLcIlan, anTcll nssurod, that iir origin, lie notice icral, Mr. othing a^ his recog- w I ask, ere founcj rt can Mr. taken, I person sit- were pre- Icrstand it r and Ter- 3 difficulty d to. Mr. mnd at an riiner. he Indian about In- |e commis- mimissien as |it, that un- m preferred fitted In the causeii to be as is to open next week in the district pf Montreal, which will exercise just tiie same jurisdiction. Mr. Vanfi'lson. — It is necessary to remember the pe- culiarities attending these cases. The difficulties of com- munication, and tiie great distance between Lower Ca- nada and the Indian Territories, make it impossible to do more than go and return once a year. Tlie trade of the interior, in which all the parties concerned in these cases are engaged, on one side and on the other, requires therefore that both a certain and a convenieut time should be fixed for investigation, and the moment a day is fixed, it is necessary to carry into effect, without tlie least delay, the measures necessary for obtaining the presence of the witnesses that maj' be required. These measures were taken by Mr. McLeod, and his partners, and eflectually taken, though at a great expense and in- convenience ; and here are the accused and their wit- nesses, ready on the day prefixed at Quebec. Good ! our duty has in every particular been fulfilled. On tlie other hand, let us look at the conduct of the private prosecutor, and his agents. They received notice at the same time as the others, that a Court of Oyer ar rl Ter- miner would sit at Quebec on the 2Ist of October. They received at the same time with the others a notice from the Solicitor General, that the Court would take place on the 2d of November, and informing that his Grace had ordered such a commissioii to open, an^ that the accused were directed to appear before it in order to take their trials. To this communication, it appears that an answer was given, that tlie private prosecutor teas not ready y nor would be ready, eithei in the u.onth oJOc- ■ tober 30 ii!' tobcr, or in the monili of Novcml)er, but perhaps he might be ready in the autumn of 1820 ! This produc- ed the letter from Colonel Ready of the 20th of June, (p. 16i) But this came too late : cd the time it was written, every thing Was in a slate of forwardness for assembling the wi\ esses. It appears by the aflidavits that it was not possible to stop the witnesses from coming down, or reverse the arrangements that had been made, the accused and their witness being already on ll.\e route to proceed to Lower Canada. Pray, what else could be expected after the communications from go- vernment in Februajy and May, if these gentlemen were in earnest in their request to have a Court appoint- ed in which they might take their trials ? Let it likewise be abvays held in mind, that the private prosecutor has himself petitioned for the same object. I will now pro- ceed to sub'iiit to the Court some remarks, in order to prove that it never was the intention of the private pro- secutor to bring the parties whom he had accused to trial. The only object of all his prosecutions, has been to sub- ject the North West Conipany to expense tind inconve- nience, and thereby contribute to their impoverishment and ruin. In support of this'obf'ervation I have to remark, tliat it was not enough to accuse the partners of the North West Company, but in order to succeed in his pla/is it became incumbent on the private prosecutor to lower them in the public estimation, and on this account, we see that in the intervals between the various accusations, pamphlets are published of the most virulent nature, and as fajse as virulent, in order to poiion the public mird. There fw 1 i ': 31 !l fcre There is scarcely a term of reproach, of disgrace, or of infamy which the private prosecutor has not lavished upon gentlemen bearing the best of characters, in order to lower them in the opinion ot their fellow-citizens. The same purpose also strongly and obviously marks all his communications with government. There is not sL single letter, not a single representation made to the Governor or to the officers of ihe Crown, which does not contain the most shameful calumnies, and mcit wicked misrepresentations : and at the moment of his departure from America, he adds another, and more scandalous, and oifensive libel to the many that pre- ceded it. In a memorialj as he calls it, he does not 1 '^- titate to accuse, wholesale, all the autho''ities in the two provinces. In the month of October 1818, this memo- rial was addressed to His Grace the late Duke of Rich- mond, praying him to appoint a Court of Oyer and Ter- miner in like manner as oad, about the same period, been done by the gentlemen of the North West Company. But in this memorial we find all the officers of govern- ment of the province, the Judges, the Sjjecin' Commis- sioners appointed by the Prince Regent, the Law Officers of His Majesty, not forgetting my learned friend on the right, (the Solicitor General,) in short, every individual attached to government, we find them all I say pour- trayed as being lost to every sense of justice and of honour. Such has been his, conduct from the beginning until the end of his career in Canada. But I ought to have noticed that this famous memorial tinished thus. ^' May it therefore please yorr Grac;.', that these matters " may be taken into your consideration, and your au- « thor- i 11 I !■ I^ i 'i !■ u 3S " Ihority exercised {hereon, in siicli manner as may be ** best calculated for the purpose of rendering amenable " to justice and of prosecuting with effect, the persons " guilty of the crimes hereinbefore referred to ; that a " competent and impartial tribunal under a commission "of Oyer and Terminer and general gaol delivery be " constituted in the Province of Lower-Canada, for the " trial of such persons, to continue in the exercise *' cf its powers till the prosecution for the said " crimes Ix; brought lO a conclusion, and for the *' more effectual attainment of this object, that the " conduct of these prosecutions be left to the coun- *' sel of your memorialist, to be carried on by them, as " permitted by law ; and may it also please your Grace " to take such measures as the circumstanaes may re- " quire, respecting the acts of official misconduct here- " In be we complained of, and afford such further re- " dress in the premises as in your wisdom may appear "just. (Signed) " SELKIRK;* I do not know what answer was given to this memo- rial, perhaps it might not be considered as worthy of one. But this 1 know, that instead of prosecuting ti»o trials in the Court he prayed for, as soon as the Earl of Selkirk had signed the memorial, he instantly left Ca- nada for Europe. Immediately on his arrival in Eng- land he adopts the same course. He addressed a com- munication to His Majesty's Government, a studied composition, in which, not satisfied with repeating his calumnies against his opponents, he, with the most un- becoming and indecent effrontery, represents all the au- tliorilirs i :^Hi 0( • thorities of the U\o provinces, as a set of men wholly unwortliy of confidence. Yes, your Honours, in a let- ter to the head of 11 is Majesty's Government, he dares to stale in effect, tlioui^h not in direct terms, that there is not one honest man amongst them, not one who is de- serving of thc^ trust reposed in them by the British Go- vernment, but that they are all, not excepting the learn- ed Solicitor General, prejudicetl and wicked m.en, with- out feeling, without honour, v. ilhout religion. This is the character given to the constituted authorities of the two Canadas by the Karl of Selkirk. Mr. Vovfdfon then proceeded to state the application made to his Honour the President on the 2d of October, by which iije accused still prated to be tried by the Court appointed by his Grace the late Duke of Rich- ; ond, representing that their witne-ses had been brought ciovvn from the interior country from distances of from two to five thousand miles, on the faith of government, that their trials sho a take place in the month of No- vember, and that the countermand had been received too laie to prevent it ; as also Colonel Ready's letter of the 5th October, in which the 2 1st of that month is named as tlie day when the Court of Oyer and Terminer would assemble, before which the ])ersons in- terested M JST sctii legal course and redress. Iter a few further r«] ervations on the assiduity with which the ac- cused ^,.^.'^ rxiwii forward, the hardships they were sub- jcctet! U' \M' iflight of the Earl of Selkirk from America, at the v^ry inoment when the trials at York were taking ^ilacc, he concluded by deprecating further delay, as being, amongst other things, lik'-ly to expose the accus- ed, not only to a continuance of the dreadful inconveni- B ence, / 1 I ■ i H ii i:ti 1 • Hi i I: Si: f nee, nntl enormous expense Ihey had for so long a time suffered, but also to the more serious danger of Liivinji^ tlieir means of defence curtailed, if not annihilat- ed, by the death of their witnesses (already exemplified by that of morethan one ins*ar»ce)* or by the other chance* and accidents incident to human ajfairs, and especially where their witnesses are to be brought down with dan- ger and difliculty for such an immense distance. SolicHoi' Gcncrnl. — I shall trouble the Court very shortly upon the present question, and in doing so I shall hardly notice the arguments produced by my learned friends in support of their application, because I consider them as totally inapplicable to the point whicli ou'dit to cnji;age our attention, namely, whether this Court has an} ' »^Jction at all over the cases of these gentlemen. It ti. ; not appear to me that your honours u ill feel yourselves in vested with autliority even to take their cases into consideration, and I shall there- fore abstain from any observations on the merits which have been so fully gone into by my learned friends. And as to the wretched trash that has been published and Avas alludcxl to in the course of the argument, it is perfectly unnecessary, indeed it would be a waste of time, to advert to it. If, contrary to my expectations, the Court sliall be disposed to entertain the application, I may, in that case, have occasion to file counter-affida- vits io show tliat tiie merits arc not against the Crown. It_^ * Midget Martin, who gave evidence of the most important na- tiu'c botli at Quebec and at York, is lately dead ; Serapliim La IVIar, a most material witness as to almost every transaction at Red Kiver, is al.-o dead ; D. McKinnon, a settler, died in prison at Montreal, &e. i S5 rown. lint na- Hm La It Red Ison at it is tiot mf intention io follow my I^nied friendar through the various remarks relative to the faith of Cjrovcrnmeiit being pledged upoii the present occasion. It is sufficient to say thi(t wliatever has been promised Has been fulfilled. My learned friends could hardly mean that in promising a Court should be held wherein the. difficulties ^hich had unfortunately occurred in the Indian Territories might be examined, the government pledged itself that it should be held wherever and when- ever the accused might demand, and without reference io whether the Crowii was ready to proceed to their trials, thai, they cdidd enforce them, or, in the evcitt of not receiving them, insist upon being discharged from their bait Adopt the doctrine of my learned friends, and the government must not 6nly furnish Courts, but it must furnish evidence also. What is the extent to which iii the present instance the govemmtot went ? It had hearu loosely of offences having been committed by certain persons in the Indian Territories, and jriI an act of grace in answer to petitions from the accused, it saysj you shall have your triali ; and, the Crown possessing at all times the right of choosing its own Court, an intima- tion is given that at the Court of Oyer and Terminer the parties may take such legal course as they may be advis- sed to accelerate decisions on the subject. This is the extent ; but does it amount to a pledge that the cliarges shall be entered upon by the Crown ? No such thing. It irterely says on the 21st October, a Court will sit at Que- bec competent to take cognizance of offences committed in the Indian Territory, and there you may pursue such course as you may think expedient. It was urged by E2 mr I J fi I 1: ;!* 1 S6 1 ! I if! ■■ ' ! I If: my learned friends that, except by application to this Court, these gentlemen were perfectly without remedy, but certainly in point of fact, that is not the case. They can apply to the Court before whom the recognizances Lave been taken, or to a Court excercising the same au- thority in the district. A Court of Oyer and Terminer sits at Montreal next week, possessing similar powers to that in which the indictments were originally found.* ApplicJition being made there, it mi^htbc examined up- on the merits (which I should consider can not be done here) and relief probtibly obtained. Another objection that might be urged is that the recognizances are not be- fore your honours, and therefore, legally, their content* are unknown to you. But the true test by which to de- cide this question is first to ascertain whether this Court can interfere in any manner with the proceedings of a Court possessing equal authority in another district. If it can not generalfj/, then to say that it can grant the pre- sent application, is to go beyond the very first principles of common sense. Were I to say that I consent to their discharge here, your honours must be aware (I speak now merely according to my own opinion) that in the Court jat Montreal, where the recognizance was taken, that would avail * n^e Court alluc'cd to, was one of Oyer and Termiaer, and general gaol df'liv«^ry for the diitrirt of Montreal , to supply the place ot the usual teim of the Court of King's Bench which was prevented fron being held m S"rneinber by the illness of the Chief Justico : but the Conn ofiiyer and Terminer under the o- perdlion of wiiiiih the recp?!:niviance:i were taken, was one speci- ally apriointed to be hoi. I -'a par:uanco of applications made for that purpose, by persons whose caries were brought from the Indi- »n Territories. 37 nr avail tliern nothing. Do your honours think, should i^mi foe disposed (which I can not apprehend you will) to dis- charge these gentlemen, that the (Court at Moiitreal must necessarily be bound by that discluirge ? Or should I, at the ensuing Court at Montreal, call on these gentl<;men to appear and on their de&ult, move for the forfeiture of their recognizances, must I take as an answer, that at a Court of Oyer and Terminer in another district, the principals were discharged ? The questions are obvi- ous, jand the answers I think equally so ; that in neither case could a discharge here operate to their advantage* To consent to their discharge here, would be, on my part, if I may be allowed to use such an expression, a legal deception ; certainly, legally speaking, it would 1)6 so, inasmuch as this Court, according to my opinion, possessing no jurisdiction to give them their discharge, Ihey would still be liable to be called on at any time. It is needless to enlarge ; were I endmved with all the eloquence of my learned friends, and to speak for six hours, it could amount to nothing beyond this ; that, according to my judgement, the recognizances not be- ing before the Court, the motion can not be granted, and (which I principally insist upon) that this Court pojn sesses no sort of jurisdiction ov#r recognizances taken in Montreal. Mr. StuarL- — The motions which we submit to the Court, embrace the cases of persons rather differently situated. Some of the gentlemen have presented them- selves before the Court, and had their appearance enter- ed of record umler the belief, as slated in their affidavits, that, although by great seal instruments, they were tj-an,'?- ^ milr h II ! : !) I lit ii I sd thWicd to the ptovince 6f Upper Canada to take tlieiif trials for nil oiTenccs alleged t6 have been by them com<*' ini'l'tcd in the Indian TerritoJTics, and altb and of Mr. Leith, they have given'bail before the cbie^ justice for the district of Montreal ; imd i^otlidi^ case is that of Mr. Mct^flan, ivho* is under Recognizance to sp^ pear in this Court. These then are th6 diitifirctioniii and the whole of the argument will apply to tlhe cases of Mr^ McLebd, and the formeif^ gentlemen, as Hr.^cLellan must, as a mat let of course, be dfischarged. I am fie^ to admit that in submittiuj^ niotionS of this description to a Court, it is tfSnal to support them (by reference to aU' thorities^ but the recognizai^ces whith have been taken in these cases are of so perfectly novd a deteAption, that it is in vain to look for an authority by Which they ^ulc^ according to tlie light I ^joy, bereaisonfed iHpon even by analogiy. If they had been dfawn up accord ii^ to toff of tlie upual forms ^ which instnlmienlf^ of that imtufc are ordinarily tdken, We should have^ felt ounJves IxMtod to criideavoiir to suppcNrt dbr motidh^ by the produHetion of auth0ritie» bearing upon the fq^pUcation, but Jbere^ jfoi * i w ',i— in it foi K ii U 39 for tlie reason I luivc stated, it i3 totally hnpossiblc. The recognizance on tlie part of Mr. McLcod was entered into before the Chief Jnstice for the district of Montreal, and is for his appearance " zclicn and zchercsucxcr he may " be legally required to answer two certain bills of indict- " ment found against him at a Court of Oyer and Ter- miricr and general gaol delivery, holdeu in and for the district of Montreal, on the 21st. day of February 1818, and continued by adjournment until the ICth *' day of May following, one of which indictments " charges him as accessary after the fact to the murder of " Robert Semple, Esquire, and the other with conspira- " cy." Our recognizance then is to appear to answer these charges when and wheresoever we may be legally called upon to do so. Subsequently we shew an order to tjie de- fendant to appear .at a particular day and place in a par- ticular Court. We were ordered to appear on tlie 2 1st. of October at the Court of Oyer and Terminer to be hol- den at Quebec. Here we make our appearance, and cause it to be recorded. But the private prosecutor docs not appear, and nothing being brought against Mr. Lcod we ask for his discharge upon tijc fiamc terms as that which Mr. McLellan will receive. My duty will be to endeavour to shew that Mr. McLeod, under the circum- stances of his case, is entitled to ask in a Court like this to be discharged. Mr. Leod was under bail to ap- pear when and wheresoever required. He has been re- quired to appear here, and his appearance has been re- corded. We nowmove that he be disciiar ;if| i If > il;;; 42 ■:. I j)iT)nv(.linos. Iji ox|)osiiii»- (he Icrriblc niul lianiswii^' t'd'ecls (»f (his syslciu of pcrscciitioii iiiulor Ihe colour of legal process, I .siuill l)e ciireriil ii(»t to travel ouiot'tlie record, bul 1 feel myself im|:eri()i!sly callecl ii|:on v,\\cn ai)plying lo the ("oiirt on IjeliaH'ot' so:uc ol" tlic vietiins (and no snuill number too) of the I'erseveringaud vindic- tive malice of the private i)rosecntor, that I omit nothing^ Avhicli may be calculated to estaljlish in the minds of your honours, a conviction that public justice requires (he Court to interfere, and l»y granting the ai)plication8 now submitted, to alfortl relief to those in whose behalf they are ])resented. In any references Mhich, in the pursnil of this object, 1 may have occasion to make, I sshall conline mysell' entirely to the j)ri\'ate prosecutor's own slatenients, or if I do otherwise, i will give notice. The dilliculties which introduced the system of persecu- tiofj so nmch and so j'islly complaiued of, commenced in the year 1S!4. Sometime about ISl*^^, the Earl of Selkirk, according to Lis own statement, became the grantee of the Hudson's l?ny Company for a large tract vi uild country, over which it is pretended that their charter (among other rights which they claim from it) gives them not only an exclusive righl of trai'e, but the riglit of soil also. The validity of this grant, or of the charier under which the conveyance was made to Lord Selkirk I shall not touch u]H>n ; those arc points to be discussed by persons possessing superior qualifications. One of the stipulations entered into on the part of the liTuntee was that he sliould establish a colony there. For the two lirst years no dillicuKy occurred, no violence of any kind, nor any tliijig to interrupt the liarniony and good 43 good fellowship ■\vliicli might naiiirally be rxprriod would subsist l)d\vo(Mi tho traders oud (he r()h)nisls — persous haviug tlie sarsie orii{;iM — coming from ihe snme rouuiry — mauy of tiMmi uuited by relatiotjsliip — addiug therefore Uieattachmeiils of family and blood — aiul near- ly the whole springing from that part of the counlry, ■which it is only necessary to nanie, and Ihe force of Ihe lies of blood rush instantaneously upon the mind : I speak of the Highlands of Scotlaiul, proverbial for Ihe altach- mcnt which the natives unceasingly bear towards each other. For two ^ears then, all was tranquility, harmony and good will, whatever has occurred since of rancour, hostility and blood thirstincss, we shall shew originated with the agents of the private prosecutor. The first open act leading to the charge, is a proclamation which I will read ; PROCLAMATION. : " Whereas the Governor and Company of Hudson's " Bay, have ceded to the Right Honourable Thomas " Earl of Selkirk, his heirs and successors, for ever, f' all that tract of laud or territory, bounded by a line " running as follows, viz. beginning on thewcslern sliore " of the Lake Winnipic, &c." It is not necessary to road the whole of the boundaries; the dcscriplion proceeds till the line returns " through the middle of the Lake " Winnipic to the place of beginning, which territory is F2 "call- I, : [I 44 !;■'; h '-' called Ossiniboia, and of wliicli, I the undersigned, " have been duly appointed Governor. And Wn ereas " the welfare of the families at present forniinj]f settle- " ments on Red River, within the said territory, with " those on their way to it, passinji^ the winter at York* or " ChurchiU Forts in Hudson*s Bay, as also those who ** are expected to arrive ne^i autumn, renders it a neces- ** sary and indispensil^le pait of ny duty to provide for " their support, in tho yet uncultivated state of the coun- " try, the ordinary resources derived from the bulFalo " and other wild animals hunted within the territory are *' not deemed more than adequate for the requisite sup- " ply ; wherefore it is hereby ordered, that no persons " trpding in furs or provisions within th^ territory for the " Hon. Hudson's Bay Company, the North West Compa- " ny, or any individual or unconnected traders or persons " whatever, shall taHc out any provisions either of flesh, *' dried me^t, j^rain^ or vf'g<''tablcs, procured or raised *' within the said territory, by water or land carriage, *' for one twelvemonth frovi the date hereof, save and *' except what may be judged necessary for the trading ** parties, at this present, within tlic territory, to carry ** tli»!in to their respective destinations, aad who may on '^ due applicatipii to me, pbtain a license for the same. *' The provisions procured and raised as abo|ve, shall '^ be takpn for the use of the colony, ai^d that no loss ** may apcrue to the parties ppncerned^ tl^^y will be paid '-' for hy British bills at the cus^mary rates. And be it " herpbv further made known, that whoever shall be de- *' tected in attempting to convey out, or shall aid and assist " in conveying out, or attempting to carry out, any provi- *' sions prohibited as above, either by water or land carriage, « shall 45 " : hall be iakini into custody, and prosecuted as the la^i-* <•' in such casos direct, and the provisioris taken as well " as any goods or cluittels of what nature soever, which *' may be taken along with them, and also the craft, carr " r\iigid, themselves to; be precluded from obtaining fopd by hunting or lishing, and thus to be leifldesti 'tc of all resources under the ri- gours J! i i Jul I I' !•'.'' s ^\ i '.i i^i i *;• ]'■ 'i 1 46 goms peculivir to tlic climate. As I shall have occasion frequently to advert to this letter, I will read his Lord-^ ship's own words. " You must give them," (the Canadians,) " solemn " warning, that tlie land belongs to the Hudson's Bay " Company, and that they must remove from it ; after " this warning they sliould not be allowed to cut any " timber, either for building or fuel ; what they have cut " sliould bo opcnfj/ and forcibly/ seized, and their build- " ifigs dcsiroi/ed. In like manner they should be Vr'arn- " ed not to fish in your waters, and if they put down " nets, seize them as yeu xcould in England those of a *' poacher. We are so fully advised of the imimpeach- *^ able validity of these rights of property, that there can " be no scruple o{ enforcing them, wherixcr jjou have the ^^ phijsical means. If they make a forcible resistance " they are acting illegally, and are responsible for the " coiiseqi5enccs of what tbey do, while you are safe so " long as you take only the reasonable and necessary " means of enforcing that which is your right." This letter was not acted upon at the time at the lion of the individual to whom it was addressed, for the reason I have just stated, nor did difficulty occur till after the proclamation. It was not till Mr. Miles Mac- donell found that he was no longer entirely dependcjit for supplies, when enabled by ordinary methods to procure them himself, upon the friendly aid of tiic PSorlh West traders, ^holiad constantly relieved the dillicnhies of the selllemeiit to the utmost of their jiowcr, that he is- sued the ]m5clam'dti(>n, the fruitful origin of all the mis- chiefs wiiicli have followed. A small accession to the settleniciit in point \. umbers took place dniing the year /J 47 I'V y^ar 1814, anil being now fully i)ieparcfl to carry into operation the schemes Avhich had been longd^'lermined upon, we find the exclusive right of soil set up in the form of legal notices to the superiniendantsof the North "West stations, to deliver up and quit t!ie various posts they (>ccupied ; they are all in the same terms, and this is one : '' To Mr. Andre Poitras, acting for the North West " Company at Riviere la Souris." " Take notice that by the authority and on the behalf " of 1/our lamUoril, the Right Honourable Thomas Earl " of Selkirk, I do hereby warn you and all your associ- '' ates of the N orlh West Company, to quit the post and " premises you now occupy at Riviere la Souris, within " six calendar months from the datte hereof. Given un- " der my hand at Red River Settlement, the 21st day of " October, 1814. (Signed) "MILES MACDON ELL." Here we find the true source of the ' gitated state of the country ; the North West traders saw that every measure of Lord Selkirk tended to one sole end, their ruin ; and they could no longer doubt but that ^vas his sole object ; and ^^aX^ w hile all this was going on, v. liil*'; every movement shewed the determination to enforce these claims by physical strength, the mist of delusion spiCad with almost magic art, and the private prosecutor •was represented to the public, to the government here, iind at home, as the most injured of individuals, whilst those who in any way interfered with, or, in protecting their own property and interests, opposed this usurpa- tion of power and authority, were stigmatized Avith the perpetration V. I I !1 ■ i; / I. / ■ ? 46 If. ■ ft !■ rl i ^ ' : ) J)erpie- sperity of those for whom he professed the utmost soli- citude, his deluded colonists. So contrary to reason does this course appear, and so obscure, that it would be difficult to arrive at a conclusion as to what could have induced it, but in the instructions ^iven by the let- ter of June 1812, we find a clue to 51II. It is frequently difficult to discover the motives from which tlie conduct or actions of individuals spring, but there is one mode, which as it is the only one that fur- nishes a fair criterion, so also it is ^lic only mode by which an honest min would be desirous that his principles of action should be estimated ; and that is an e^^iQinationof his conduct. If you find it uniformly devoted o? tending to one object, if ^t all times, in various places, aixd ur^- der different circumstances you perceive that the mea- sures of the private prosecutor must necessarily lead to the ruin of the North West Compani/^ then, according to this fair test, that was his object. It is not an acci- dental deviation from, or interruption of, the pursuit that at all invalidates the correctness of this position. If till 1814 nothing had occurred to evince that the means so shamelessly recommended in the letter of 1812 were $3 I' wore to be adopted, it was purely accidental, arising in some instances from more correct sentiments actuating the persons to whom those instructions were addressed, and in otlier^ perhaps from tjieir not possessir g " the ''^. phi/sical means''' of enforcing submission. The test notwithstanding remains a fair one. In the circumstan- ces I have adverted to there are three features all bearing a similar impress — first, the letter of 1812 declaring the rights, and pointing to physical strength as the means of enforcing them, if not immediately acknowledged- then th^ proclamation of 1814 proliibiting the fur-traders from deriving the necessary and ordinary supplies of provisions, and thirdly the notices to quit the trading ])osts or stations occupied by the North West Company. All these point to one end, and each has its particular effect in accomplishing it — that end is — the destruction of the North West Cowi/Jawy-r-ensuring, as a natural con- sequence, the monopoly of thp fur-trade. The peculiar effect will be evident upon a cursory exaniination of the nature of the trade. Extending itself into a wilderness, a distance of five thousand miles, through r.yers inter- rupted by rapids, and susceptible of navigation by the slender canoe of the savage alone — it is evident the trad- ers engaged in itj must depend upon a renewal of their supplies at various points on their route, inasmuch as they are unable from the nature of the navigation to em- jiloy vessels capable of burden. Not like a vessel on a voyage to India, where all the passengers may be ac- commodated with state rooms according to their various ranks — there it is indifferent whether provisions are required for one fortnight, for one month; or for the whole i '. ■' 1 \\ i : 1 I' ( I 64 4 •I . I ■;: ; r !?: i if ; i i ^Iiqle yoy^e, the vessel employed being adequate to its conveyance in addition to her freight — here, small in« deed is tti^ space that can be allowed for the conveyance of the ^lecessary provisions Now, practically, what must be the inevitable consequence of interruption to the receipt of supplies at any one of the intermediate points between the utmost extremes of the point of departure and of destination, the mode of performing the voyage being thus-T-starting from a^iven point, they receive the necessary provisions to take them to the next post or depAt situated at a certa.in distance, arrived there, they are supplied with food for their support to the next star tion, and so continually froni station to station to the ut" most extremity of the route. If then, at any one point, from any circumstances, the necessary supply is not re- ceived, what is the consequence? Why— their destruc- tion—starvation—let the supply fail at one point only, and the circulation is broken, the arterj^ i^ cut — vitality ceases-Tdeath ensues — and as certain as cutting the arter ry is death tp animal existence, ^o is— so mu^t be — frona the v^ry nature pf the trade, the failure of provisions at any one oif the appointed spots for receiving them, and this was well known to the private prosecutor who use^ it therefore as a means ^o accomplish his sole object, the destruclipn of the North West Compani/^ thereby ensur- ing to himself a monopoly of the, fur-trj^de. But to be a liltle mpre minute, let us begii^ with the proclamation and ascertain what would have been tlie consequence of paying obedience to itT^what the consequence of not receiving from the Re d River country the su]>ply of buf- faipe usually obtained from that quarter by the ppsts be- low 55 tow it. The same end as all the other measures point to, must have arrived, namely, the destruction of the North West Company^ and tliat too even here under the form of legal process^. The proclamation is issued under the au« thority of a grant assumed to be legal^ but not obeyed, (and because of the fatal consequences that would ensue, it was impossible that it could be obeyed,) the navigation of the rivter was to be obstructed, and the passage of the supplies prevented. What would have been the conse- quence if resistance had been made? Why, that we should, according to his Lordship, " be acting illegally, ** ahd therefore respbrisible fbr the consequences." Next come the notices to quit,* pointing to the same end, and lo be accomplished by the same means, the form of legal process. Had a single post on this extensive communi- cation been abandoned, again the artery Would be cut, and the same effect be produced — the destruction of the North West Company. \ Ad- * In point of chronological order, Mr. Stuart, might with great propriety have adverted to the actual forcible seizure of the North West Company's provisions at Riviere la Souris in June 1814, unAer colour of legal process, by warrants issued by one person calling himself a governor, to another calling himself a sheriff, be- sides other aggressions, equally attempted to be justified by the pretended legal authority assumed by Miles Macdonell. + The attack upon Fort Gibraltar in October 1815, and the capture, and utter destruction of that post in March following, though part of the same plan for the destruction of the North West Company, yet, as no legal or other pretext was ever brought forvrard to justify them, did not perhaps come within the scope of Mr. Stuart's argument at the moment, as not having been com- mitted tinder the colour of legal process. I '! ifi i: Iv : i 1' r>« .r ii; it Adverting n61f more pnrticulnrly lo the third stronj^ feature. The text is in the EarPs letter before quoted, viz. " if they make a forcible resistanee, /Ary are acting " illegally, and are responsible for the consequences of " what they do, while you arc safe, so long as you take " only the reasonable and necessary means of enforcing " that which is your right ;" thus aiming at the destruc' thn f)f the North fVest Compant/, and that, wider the form of legal process. As a commentary upon this pre* tious letter, I have said, that if the navigation of one of the rivers in this th&in of navig^tioti was stopped, that the same end Would arrive, and the only means of avert* ing the consequence of such an outrage, would be t6 force the passage of the King's highway — ^the highway of nature, which no man or body of men had a right to close or stop. If obstructed^ it is the right of every man to overset the impediment, to abate the nuisance^ certainly without resorting to violence, if that can be helped, but to abate and remove the unwarrantable nuisance is the right, and I will go farther and say, it is the imperious duti/ of every man. This was precisely the case here, precisely the case of the gentlemen here^ of Mr. McLeod and the others, whose affi ^; fortunate afTair, Ir'mrelf and twenty of his followers w and by none more sincerely than by tlie gentle- men who have been so unjustifiably accused of having been accessary' to it, was attributed to the Indians having been incited by the North West Company ^'o destroy ihe Colony, and the gentlemen around me were stigma- tizMl as murderers. After two years unceasing exertions to V ipe away this stain und relieve themselves from th«3 I'-Tifouaded aspersion, by receiving a trial in the face of their country, whilst the private prosecutor was a»activ« in devising means to evade and postpone the investiga- tion constantly demanded by the accused — at length de- lay, procrastination and subterfuge had reached their utmost limits, and the opprobrium which had so long as- sailed and blackened their characters, wa« by the verdict of their country, pronounced a malicious and unfounded calumny, and estsiblished as true the statement which liad been constantly given by their servants and others engag- ed ill the imhappy conflict, that it was in self-defence the melancholy catastrophe ensued. We are authorised to say they are innocent of the blood of that day, because thtir country has declared them to be so, after a solemn i'xamlnation of all that could be adduced to substantiate tie guilt or vindicate the iiinoconce of the accused. It has been manifested to the world that the melancholy bloodshed of thai day, was the result of an unwarrantable attempt to assert and maintain the territorial rights claimed by ^h,e JIudson'*s Bay Company, in co?iformity to the early iiiutructiojis of the private prosecutor in these 5* fi I ec cases, not lo scruple to enforce them Ttlierever th*5 physical means were possessed. Had they in this instance been adequate, the constant object of solicitude, the de- struction of the North West Compaifi/, would hr ve been nearer its attainment. After so melancholy an overthrow to his anticipations it might have been supposed that a course so charged with danger would have been aban- doned. Any other man, when he saw the vast fabric reared by the resources of his mind, thus fallen in ruins, would have paused. One might have thought, capacious as are the resources of his mind, tliat even the Earl of Selkirk would have stopped. But no — so far from dis- aster and disappointment producing with him their or- • I •ii h 1 i- I * 1 ill I having issued his warrant, he, and his adherenis wert safe. Here is the clue, i'lei/ are responsible and i/ou are safe, if forcible resistance should be oftered. i^gain, there is not wanting the clear and distinct expression of Iiis Lordship's expectation that resistance would be made, and we can not but admire the dexterity with which the government was, by anticipation, prepared, in the event of a conflict, to aflix the odium of resist- ance to the law upon those whom he was at the very moment devising plans to render the victims of persecu- tion, under its semblance, thus again scheming to render catastrophes, however fatal, subservient to his views. In a letter to his Excellency Sir John Coape Sherbrooke, after receiving the first information of the affray at Red River, and previous to setting out from St. Mary's on the expedition to Fort William ; after lamenting that in a case wherein he was a party he was reduced to the alternative of acting in his magisterial capacity, or of al- lowing an audacious crime to pass unpunished, he states that he can not doubt but it la his duty to act, though, ho adds, he was not without apprehension that the law may be openly resisted by a set of men, who have been accuse tomed to consider force as the only criterion of right. Happily no resistance was made — the objects of this per- secution under colour of legal process aubmitted to what they knew to be an unwarrantable abuse of authority,^ and resolved patiently William^ and these gentlemen, many of Avhom were pre- sent at the time (and the victims of that aggravated out- rage) were standing at that bar on the accusation of mur- der, which no iloubt would have been preferred against them, I ask what effect would it have before the Court, were I, as their advocate, to have stated that the issuing of a warrant by Lord Selkirk, was a vindictive prostitu- tion of his authority as a magistrate for purposes of ma* levolence, or that it was a mere manoeuvre to get posses* sion of the fort and of the persons of the proprietors; that its object was to enable him to seize their property, to ransack their papers, totally to interrupt and destroy tlieir commerce, by seizing upon their prii?cipal clerk? and servants, some as parties to the alleged crimes, and others as witnesses, thus weakening the means of con- ducting their affairs to an Extent that must unavoidably result in the ruin of the North West Company ? What, I ask, without having a knowledge of the transactions that actually did occur at Fort William, would have been the effect of such a defence ? Why, we should have been told that it was a vile calumny, an indecent asser- tion, an unfounded slander. We should have been taught tJiat even against the humblest magistrate in com- mission, such representations would have been unavail- ing, and we should have been reproved with indignation for daring to ascribe to a magistrate holding the elevated rank of a peer of the realm, an abuse of his office for the purposes of private malice and sordid interest. Had thi» been our defence for resisting the attack, we should most certainly tave been told that it was an aggravation of our crime, \- \ ' t ^ 1 1] , I I; i ■f «* erimc, and a wanton outrage against the character of a distinguished, disinterested, and indefatigable magis- trate. But, resistance not being made, the expcctal justification for all ihe preliminary movements was cut off, and it became necessary to seek for some new co* louring for these unparalleled acts of violence, committed under the disguise of legal process. It became inuis- pensible to discover some grounds of accusation sufficient- ly strong to excite the public feeling, and also to prevent the impression which the letter to Sir John Coape Sher- brooke was calculated to produce upon his mind, being removed by the submission of those ver / persons who had (according to his statement) been so long accustomed to consider force as the only criterion of right, that no- thing could be expected from them but open resistance to the law. To the fertile mind of his Lordship this was no difficulty, and charges of crimes of i^ very deF,criptioii were alleged against the partners and servant^s of tlie North West Company. Treason, murder, c( mspiracy, robbery, and almost every offence in the ca talogue of crime was urged against them. The plan wa s success- ful, for I recollect the degree of alarm that Was felt in this country when the intelligence first reache« 1 here, and the prejudice it excited against the suppose d culprits. I can speak for myself, that those were the : sensations created in my own mind on first hearing of tl lese arrests. Having thus secured the persons of his con imercial ri- vals, seized their goods, and put an entire s toj) to their trade, he had again cut the artery, and the ruin of the North West Company might now be cons' idered com- pletely certain. But this was not enough^ ae seized the books A 65 books of the Company, ransacked their papers, examin- ed their accounts, made Iiimsclf master of their most se- cret and intimate thoughts, through the correspondence of the Company, and this was all done under pretence of searching for evidence against the culprits. Thus, Avhilst the partners were sent away prisoners upon ac- cusations of crimes of which it was impossible they could be guilty, and their servants debauched and seduced from their service, the accuser w as employed in scruti- nizing the books and private papers of those whose de- struction he now felt within his grasp. An act more ilagrant never was committed by man, an act that no- thing can excuse, that nothing can extenuate; and I tremble when I think that at this very moment of usur- pation and outrage, at the very moment of this open, daring, violation of law, which he had himself commit- ted, this mighty magician had the address to direct the tide of public opinion against the very men whom he was endeavouring to destroy, by a persecution under the semblance of law, the most vindictive and oppressive that ever infringed on the rights of human beings. Such was the effect of his exertions, that, obtaining credit for anxious endeavours to enforce the law, and secure tlie punishment of notorious criminals, his opponents became for a time, objects of general horror : but the delusion has passed away, and the stroke recoils upon himself. 1 am at all times disposed to do justice to the talents of the noble Jjord ; none but talents of tlie first order could have devis- ed such plans as he has pursued ; none but talents like his (Could have surmoimtcd the defeats which have opposed his career, and only himself could so frequently have convert- ed those very defeats into the means of increased exertion. I CaN I I t .;j ji I I ! 1 1 1' h 1 i 1 ' 1 ; ! i ' 1 1 f I i ■ \ I >. s ■; fid Calumny first assailed the cliaraclers of tliosfc who wcnrf to l)e the objects of his attack • violence succeeded to calumny, and to violence has succeeded a persecution under colour of legal process. The history of the would furnishes numerous institnccs in which persecutions un« der le^al form^ have oppressed mankind, and one looks with an indistinct feeling of horror at the consequences. Look at the bldody revolutions which have spread deso- lation and ruin, like a pestilence, and you will perceive that this is the fruitful source whence they have sprung. The opprcosot has set himself with might and main to accomplish his object^ and then C6vers ovet his open and daring usurpation by oppressive appeals to those very laws he has so flagrantly violated. Reviewing all the means to which the Earl of Selkirk lias had recourse, we see that he was now in his full ca- reer, and would Ihive destroyed the North West Compa- ny, destroyed their funds, destroyed their trade, 6r takeni it into his own hands, taken possesssion of their posts one after another, and thus he would have completely effect- ed his long sought object, the ruin of the North West Com-pany^ ensuring thereby the monopoly of the fur- trade ; and this he would most fully have done, but fot the direct antl immediaite interposition of the sovereign authority, ordering the restitution of the forts, buildings, and trading stations, with the property they contained, to the parties who originally established them. But, though by this interposition of the Prince Regent, some of the various engines of oppression were removed, and the object again defeated, new measures were immediate* ly resorted to. It appeared now to be determined ia at- tempt \ 'I 07 ■' i tempt the entire ruin of the commercial rivals of his Lordship, by removing every individual competent to ^ake a prominent part in conducting the Indian trade, and in addition to subjecting the partners individually to odium by the imputation of crimes, and thereby affecting their credit as merchants, to expose them to all the ex- penses inseparable from legal proceedings, which, it is needless to say, in such cases as these must be enormous. Accusations were immediately brought against as many ^ possible, and it appeared also to be resolved that they shpuld be confined as long as possible, and in pursu-' ance of that plan, individuals have been detained one, two, and three years, demanding their trials, to the sa- crifice of their health, and in some instances of their lives. There was in this Court the other day that miserable in- dividual Boucl^r, who, after a confinement of two years and upwards, at length dragged the private prosecutor, or rather his witnesses, to York, and received his trial, and w^s declared innocent, but at the entire sacrifice of iiis health, by his long confinement. Others of the vic" tims of this system of indiscriminate accusation, have ijifid, o^ying to the length and severity of their irapri- sonmeut. What, if endowed with the eloquence aiul powers of diction posspsseci by thp private prosecutor, would be the picture that might bp drawn of such a per- version of the forms of law I If he and his adherents had felt the weight of such a series of continued and uninter- rupted oppression, undpr colour of legal process, what would have been the representations that he would have presented ? These hardships we h^ve been compelled to si^stain, and although from the result of all the trials that 12 have 1 I t ( ii i /■I i i I 'I i; i ■A '11 ^Ill'l I l-i' I i\ ir .1 16 II 68 have taken place, it is apparent that no individual wlio has been accused, ought to have been punished, yet tliey have been punished with a severity extendii\;:j to ruin of health, and, in some instances as before stated, to loss of life from the oppressive nature of protracted imprison- ment. But in the vast fjibric which the plans of the noble Lord intended to rear, and to which the destruc- tion of the North West Company was necessary as a ba- sis, the death of some its servants was nothing, mere dust in the balance, unworthy of consideration. What, I would seriously enquire, is to be the end of these oppres- sions ? Where are they to stop ? Where is this course, equally alarming to all, to be arrested in its destructive career ? For let us recollect that if in one instance, all the institutions which are framed for our protection can be rendered the instruments of our persecution, they can in another. The consideration is important to all. If a system of obloquy and calumny can set aside *^ onder abortive the safeguards of the law, in the preseni cases, the same system may be resorted to with equal success in cases wherein we — any of us — may be the victims. But affixing odium to those whom he opposed by a sys- tematic course of calumny and misrepresentation, was only one of the vast means brought into the field. Similar odium by similar means must be attached to whoever dared to interfere with, or oppose, in the administration of the duties of their official situations, this unheard of system of persecution. Thus, magistrates, judges, com- missioners, governors, the officers of government here and at home, in short the government itself, were all tnarked as the victims of obloquji^ and declared to be dcs- 69 ,» destitute of principle and of honour, and the Supporters of every euorinily. That such a system has not excited an abhorrence and ahirm proportionate to the dangerous consequences that, flow from it, may >*ell be a matter of astonishment and regret. That we should with apathy behold a tribunal erected above the tribunals of the law, and from the tyranny of which no individual can expect to be exempted — that we should witness it with indilfer- ence is a symptom portending the most pernicious re- sults. Tliat without any effort to withstand its baneful tyranny, we should allow, under colour of legal pro- cess, a system to be established, to which not only our persons, which, compared to our minds, are but as mere shadows, but our minds, our reputations, and our cha- racters are to be exposed as to the peltings of a pitiless storm, can not but excite our surprise. It may serve, however, to shew the address with which the scheme has been conducted, when a plot so deeply laid, so atrocious in its design, and so horrible in its consequences, has failed to excite ihe alarm and indignation of the country. The feeling it onght and might have been expected to have created was one of active sympathy, and earnest endeavour to avert the evil. The calamity to-day i« yours, to-morrow it may be mine; my neighbour's house is on lire, j am proximus ardei Ucalegon.- the next house is burning, mine must succeed it. Re- move from us the safeguard of the law, let this system be established, and we are left in the wide world exposed to malice, persecution and oppression, with nothing to a^ord 1 I : If' I 1 / 1 l'.i :\ J! ': I ' ( ■i! TO tttford us protection, and witlioat a slicltcr from the litorm which threatens our destruction. When such a system, organised and directed by talents of the highest desciiption, aided by ranl^ of the first order, is in ope- ration, deplorable indeed must be the situation of its un- happy victims. It might perhaps be thought, that the ttovercign authority having interposed, all was over, and that the game of persecution by legal process was up; but not so, the active mind of the private prosecutoif was not thus to be stopped i|n its march, and again were the officers of goveriunent to be rendered subservient tp his views. Although perfectly aware that the cases of some of the gentlemen present, anc^ Qf others, had been transmitted to Upper Canada, under great seal instru- ments, authorising their trial for all ofi'ences alleged against them, he applies, through the medium of the crown officer^ to the Court at Montreal for warrants to be issued, which, being granted, haye been sent into the Indian country again to subject them to additional ex- pcnce and inconvenience. What say th^ afliidavits of tlicsc gentlemen, wlio have come voluntarily and made their appearance? that they are " credibly informed, * have good reason to believe, and do in their conscien-r " CCS \'crily believe, that since the day of the date of tl^p " aforesaid instrument, under the great seal of this pro- " vincc, there have issued warrants from some court, judge " or justice, in and of the district of Montreal, for their " apprehension for some supposed crimes or offences al- '' Icged to have been committed by them in the said In- ^' dian Territories, before the day of the date of the said ^ instruments under the great seal of this province, " whicU :l '^ which said warrants the deponents have il^ason to be^ " lieve, and do verily believe, are in force and virtue.'* Yes, they are left as a precious legacy to the North West Company. Their design is clearly to be seen : no soon- er would the persons involved in these accusations, either as parties or witnesses, have returned to the Indian Ter- ritories from Upper Canada, where most of the accused were already bound to appear, than they would, by vir- tue of these bench warrants, be again arrested and brought to Lower Canada. The system of oppression under the colour of legal process then is still in full play, and by thus removing, through accusations, indictments and arrests, all those persons who arc competent to con- duct the intricate business of the interior, the trade must necessarily be transacted to great disadvantage, which, united to the expense inseparable from the constant and iiarassing legal proceedings, it is hoped may accomplish in this way that ruin, which former efforts, gigantic as they have been, have failed to effect. In this manner accusations were again brought forward, and again have the objects of a persecution, as relentless a& extensive, to vindicate their innocence^ It would avail nothing to say, already have we received a trial for these very al- leged offences, and been pronounced innocent by the voice of our country^ already, after years of unceasing clamour for an opportunity to refute the charges, have we at length proved them to be unfounded — these, and similar declarations, will all go for nothing. We arc challenged again to prove our innocence : again is the opprobrium of having perpetrated infamous crimes en- deavoured to be fastened upon us. With his usual daring he ^'1 i ■ f 1 > I I i; I It ; ii! i I) : ^ 11' ! n lie has a*ain called upon us io defend ourselves. The Douglas Lath thrown down his glove. We accept his chal- lenge, and are prepared to meet him : bat, where is the Douglas ? He is not here to redeem his pledge, he has fled from the face of his adversaries, and nis glory is passed by. We have been accustomed to esteem it our happiness ^.0 be born in a country, and under a government, where all are entitled to equal rights in a court of justice; where the poorest peasant and the proudest peer are equally protected by the law. What shall we say then to such a perversion of our privileges and our rights as the oppres- sions exhibited to the Court in the cases of these gentle- men ? Individuals dragged year after year, from Court to Court, from province to province, with their chvtrac- Lcrs tainted by accusations, and seeking to throw back the unfounded calumnies, yet unable to obtain their trials ? What shall wc say to the system of persecution under colour of legal process, when individuals come voluntarily three, four, and five thousand miles, to seize ihe opportunity, which at that distance they have heard will be afforded in this Court of Oyer and Terminer, to persons accused of having committed offences in the I"- dian Territories, of proving their innocence, and to which their accuser has been warned to co?ne prepared to sul)- stantiate their guilt ? What, I ask, shall we tiiink of per- sons, who thus voluntarily surrender themselves, saying ; "We hear we are accused, that charges are alleged "ugainst us, and wc have^ regardless of inconvenience " or expense, come with our witnesses, and supplicate, " in God's name, to be permitted, before the tribunal of *' our country, to clear our characters, thus tainted with " ignominious accusations." — What, I say, shall we think ©f 73 I I <»f their being told, after coming five thousand miles, un- der such circumstances, " you may go b ick again, the Earl of Seller I: is not rcadtf ? Let us f jra moment advert to the circumstances which preceded the appointment of a Court for the trial of of- fences committed in the Indian Territories, as signified by the official letter of the governor's secretary, and the notice of my learned friend the Solicitor General. The agents and partners of the North West Company had been assailed for years with accusations of murder, trea- son, and conspiracy, alleged to have l)cen committed by themselves and theii servanis;. and ha« inefFecti-ally en- deavoured by every means in Iheir power, and every where, in every Court when- they lould legally seek it, to obtain an investigation (tf these charges. — At length, after the proceedings at York had ^Icclarcd two of the principals ar used in the «iffiiir of Mr, Seniple to he in- iioccnt, and a second trial Iwving obtair»ed the same V( diet on behalf of a numt-^r of their partners, accused as accessaries, they resolved t/> petition ti»e highest authori- ty : they asked of the representative of their Sovereign in these provinces, to interpose the authority of His Ma- jesty's government to check this unprecedented system of persecution under colour of the laM', by the appoint- ment of a Court of Oyer and Ternjiuer, before which the private prosecutor and the persons accused should be no- tified to appear with a positive inti> ion to the former, that in case of his default, the prosecutions should be dismissed never to be revived. They praj ed that some termination might be put to this scene of legal oppres- sion, to this tissue of calumny ; that some time might be . , K irre- i "-f - / • 74 •li i 'i ' i! 1 irrevocably fixed as tlie period when they should, by ai public trial by their country, be either restored to their rank in society, or, by their guilt being substantiated, receive the r)unishrnent due to their crimes. In God's name, they implored, let some prospect of a termination of this system of oppression and persecution, be h«ld out — let the result be what it may — come life — come deatli — come what will — come what may- — in GmriS name, let us have our trials. This was the substance of the language of the accused in their petition to Ilis Grace the late Diike of Richmond, immediately after the ac- quittal of the persons tried at York, and the eftect of this application is before the Court. A prospect was held out in the notification before alluded to, that by the ap- ])oinlment of a Court of Oyer and Terminer and general gaol delivery, the di'sired relief w'e their trials. Every thing was put in motion ; the wit- nesses being collected from various and remote posts, the accused, conscious of their innocence, left the Indian country and hastened to the appointed place of trial. After this, and at a time when he was in the Indian country above Fort William, Mr. McGillivray received the letter of Colonel Ready, dated 20th June, contain- iu}i^ information that t/ie private prosecutor pi:as not reaJj/, nor could any time be mentioned when he would be pre- pared, and therefore it would be unnecessary for us to appear at the time we had been directed to do so. The letter I believe does say that some time after next autumn the private prosecutor may perhaps be ready, but I K 2 woukl 16 lip \v6uld ask, can such a procrastination be allowed ? The statement of the agents of my Lord Selkirk is simply that he will not be ready, unsupported by affidavits or docu- ments, or any elucidation as to why, after near five years preparation, he is not ready. I would solenmly ask, can such an answer be received ? Is it enough to tell the victims of this horrid system of legal oppression, after coming thousands of miles, iii obedience to the directions of the government, to claim their trials, that they can not receive them, because the private prosecutor is ^ot recul^ ? Can it, I would ask, be esteemed a sufficient an- swer, whilst at the same time that their trials can not be had, they shall be rendered liable to arrest in virtue of other warrants issued at the instigation of the private prosecutor ? Is it, under all the circumstances of the case, to be endured, that the private pr secutpr shall be able for years to delay the course of equal and substan; tial justice, by withholding- trials from those whom he thinks proper to accuse, by simply saying, when the day arrives, I am not ready? ' «•'. Upon the whole case, which it is impossible to con- :irlies (jfiOciod by it wc nrc entirely i«^nonint : wc aro call-'J i:;u;n hy (he motions to decide an abstract question of law, and, according- to tite liglit we havej we shall do so, without reference to parties or consequences, and Vilmn wc have exhibited the reasons which iniluencc out jiidi;;\>inep.t, wo doubt not that it will be satisfactorily &}'.e\vn tlkit (ho discharge ajked for must be (with the ex- cepUonof 'Ir. JfTcLelian) accordinjj to the rules of law, refused to the parties. The first qiicstian is, can this Ccuit discharge Mi*. McLeod from his recognizances r — ^7e answer, it can not. They were not taken before uSj, but witlioutat pn sent cnteriag into that part of tJie con- liKler.ilion, it is a')w)lute!y necessary that the recogni- zance, bc^iij mailer of rccurd, should l>c before the C' url. I do ii(.t mean tliat the origiiiad record itself sJiouhi be before lis, because, being an inferior Court ourselves there is no possibility of issuing a writ of Certi- orari to bring it in, but an exemplification, under thi; seal of tiie Court wlicru tiie proceedings were had, inighi have iicon here, or id least a s\^ orn olllce-cupy : a copy CYaminal wiili tl'.e origiii.'il and prbved on oatli by the witness wiio examined it. It may be said that the re- coiTiiizancc is proved bvtlie aihdavits that arc here : but it is the record^ and also not a part, but the Zk.^hole of the record, Avhich nuL-t be exemplified or copied ; it must be from beginning to end before the Court, so tjnt they may j hi 83 wjay be in possession of the full c/Tcct of it, and for tlu^ reason, a partial extract may I^ear a very (lilR nuit im- port from the Avhole taken together ; therefore it is c->sen- tial that the whole record by exempli/ication under th,e seal of the Court, or at least by a sworn ollice-copy, lie before the Court. All our common place books define \yhat a recognizance is. Chilly, V'^^"- ^'^^ ^^y^j " «i rc- " cognizance is an obligation eiitered into before a magis- ," trate, duly authorised fof that purpose, with conditions *' to appear at the sessions or assizes. The party need ** not sign the recognizance, but the record thereof is af- *' tervvards nuide out on parchment, aj;d subscribed by *' the justice before whoni it is taken. But it is a matter " of record as soon as taken and acknowledged, though " not made up by the justice, and only entered in his " book." In 4th Bhckslone also, the nature of recogni- >5ance, its objects, and the modes of discharge therefrom, are fully set forth. As a matter of record then, it is evi- dent that before \vo can possibly interfere, the recop-ni- ,?:ance must, either by cerlificale from the Court whon^ it is taken, or by a sworn oliketcopy, be piodiiced in Court. The aihdnviis of I'le parties that thc} aio under rerogui- 7.ance, can not be leccivcd as t.idci) - llicreof, because.' ut best it is but a pai ' '\A account of thi. 1 w hich Is there- hy gi^en, whereas it is most di^iincll^v slated in all tijc authorities, that Ihe td'ole and not a pari i.i a iccoril must be exeiJiplificd or copied. Ar» exemplification of the record under thesesil of t!ie Couil when the proceed- ings havt; t<'ik;;n place, or a sworn oJlite-ccpy of the en- tire record, h the Icpst cvideiice that tlie Court can re- quire of the cxiaicnce of recognizances, beciuse upon no L2 \ci$ I i I ' W |! 1 !i I t I ^V ^ 0%l IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 11.25 m 12.5 Ut iU 12.2 " 6" i .^ P ^ ^ ^ ^_y ■^ ** Hiotographic Sciences Corporation 33 WIST MAIN STI HIT WltSTU.N.Y. MSeti (716) 172-4503 \ '•♦, ^q- ^^ <> •^ ^/"V. ^o^ ":;1 ^^% F.^ %o V J ^ T < f^ r 1 t f, 111 i n !) it if Urn !' it i 1^ » 9* less evidence is it competent to the Court to proceed up* on any thing connected with them. A recognizance tak- en by other than this Court to be within our jurisdic- tion, must be certified in some shape to us by the autho- rity by which it was taken, und in the absence of such certificate it is totally impossible that we can in any way interfere. In the ordinary fulfilment of their duties, the justices who take recognizances, must, in pursuance of the statute, deliver them on the first day of the next ses- sion to the Court in which the parties have been bound io appear, and they are then filed by the proper officer, so that they may be regularly proceeded upon, and that, in case of forfeiture, they may, according to the prac- tice at home, be estreated and sent up into the Court of Exchequer. How is this Court to know whether the re- cognizance in the present case has been fulfilled or be- come forfeited. Having no return made to it, nor indeed any evidence, that is legal evidence, of a recognizance having been entered injtoat all. Recognizances can only be discharged in the way now sought for, by the order of a Court to which they arc certified by the justices by whom they were taken. The evidence of their having been entered into, must be their production in one of the shapes that have been adverted to. In Peakt's Evi' dence, page 28, the various forms in which matters of tecord can be produced before a Court are fully pointed out, but none of these have been adopted on the present occasion. Supposing this rect^nizance to be forfeited and estreated into the Exchequer, from negligences of the parties to fulfil the conditions of the bond, and that Application was made for a quietus ; the first step in that case 85 I 111, 11 case wouM be to obtain a constat, an instrument which is prepaied by the proper officer, at the solicitation of any person intending to move in the Court of Exchequer for the discharge of any thing. The constat is declared to be more certain than a certificate, because it certifies all that appears upon the record — ^but we have no record before us, how therefore could a constat be prepared, when we are ignorant of the very condition of the obli- gation, the non-fulfilment of which has occasioned the forfeiture. It is impossible for us to accede to the mo* tions, without a trace of a recognizance before us, nor an exemplification under the seal of the Court where the proceedings have been had, nor even an office-copy. From the exhibition of the contents of the record by one of these means it is thf .t the Court must receive its infor- mation of the tenor of a recognizance. It can not obtain it by any other means. There is a case in 1st StrangCy page 210, in which it was moved that the keeper of re- cords in one of the counties, might attend a trial at bar in the Court of King's Bench, with some of the original records which on a former trial it had been objected wero worn out and obliterated ; but the Court refused the ap- plication, saying that they never did it, but a rule for copies might be had. The Court further observed, that the officer who had the custody of the records could not be examined as to their substance, though he might give evidence as to their general condition. From this it is manifest tha« were the officer of the Court who has the keeping of this record here under examination, he could not be allowed to testify as to the matter of the recogni- zance. If that was the case in the Cou rt of King's Bench at I! ^ '^ii \\ ! I iii: 11^7^ ■ ;.'. ^ m Hi u i i:- I rM i I- 86 lit Iiome, it is manifest that the copy of tiie recorcl ouglit to be here, as it is the only admissible evidence of the re- cognizance tliat can be given : any other proof must be incomplete and not entitled to be received. In all matr lers of record the whole record, and not a part only, must be exemplified or (copied in order that the Court may be in possession of the full effect of it. A partial ex- tract will liot suffice, it must be the complete, entire, fac 'Simile as it were, of the record, so that its true import may be ascertained, which can only be determined by the exemplification of the whole. Again, how could the cfficer of the Court make his certificate of a forfeiture without the recognizance, and he is under a penalty if he does not, under a penalty for each failure, the one moiety to the u^e of His Majesty, and the other moiety to the use of whoevtr will sue for it. Yet, no record be- ing returned to him, it would be an impossibility that he could say whether the recognizance had been forfeited or net. The application to us on behalf of Mr. McLeod is, that the recoiinizauce of himself and of his bail be dis- charged, hp having (as stated in the motion) appeared in performance of such his recognizance. In discharge of what recognizance ? How can we cancel a recogni- zance, the original of whicli is not here, nor any kind of a certilied copy ? In whatever pohit of view the sub- ject is examined, the difilculty recurs, and we find it impossible io grant the rcjief that is asked by his counsel. The application on beh;ttf of a number of other gen- tlemen is, that they ma}^ be discharged bj proclama- tion, and their counsel having represented, as do their affi- 87 affidavits, that they do so to avoid being arrested upon, \varraiits, which it is stated are in force and virtue a>- gainst them. ' But how can we grant these gentlemen rc^ ?icf, even slioulil the warrants have been obtained illcv gaily. The commission under which the Court in thfe district oiF Rforttreal [that found the indictment*, satfe was' precisely the same as that under whicfi this Court is . hblden, equal in power to this, and exercising a juris- dictibli perfectly similar. A writ of certiorari would iiot bring* their proceedings before us ; it would not lie from u4 t© a CJourt every way co-equal with ourselves, and possessing a jurisdiction in the district of Montreal co-extcrisive with that of this Court in the district of Quebec. The Court at Montreal where the proceedings in the cases of these gentlemeii have been hieldj was a C3ourt of Oyer and Terminer and general gaol delivery, and so is this ;* but they hate separate jurisdictions, and can not interfere with each other, as we are advis- ed, and nothing has been adduced to shew that legally we can exercise any authority out of the district of Quebec. Tliese gentlemen think proper to come here arid enter an appearance, and men seek to. be '^'".charged from indictments found in another district,' because they can not be iried in this, tf the case of Piatt is referred to it will be found exactly similar to this in principle. Iii that case, the application was made in an ordinary Court of ■\:\ •• ■i V .fit ! A /,■• * But the Court at Quebec was specially appointed, as ap- pears in the Commission (Appendix A.) for the trial of cases froni ihfe Indian Territories, which it aeemS was not so with regard to that of Montreal, which is alluded to. I { I ; i-.i ! ; S6 \ V4. ':>! * 1 1 ■• 1 It {} fiisi ; . !. Oyer and Teimiiier, and general gaol delivery to admit a prisoner to bail for treason alleged to have been com- mitted without the realm, he being found in the gaol, and having complied witli Jie forms of the act which empowers a Court thus constituted, to admit a ^'prisoner committed for high treason to be discharged or to be bailed, according to the circumstances in which he stands at the moment. This is an application to dis- charge persons by proclamation, against whom indict- ments have been found, and, as is alleged^ warrants have issued in another district for offences committed in the Indian territories. So far the cases are analogous as they are founded upon offences committed out of the ordinary jurisdiction of the Court in both instances, and the power of the Court of Oyer and Terminer and ge» nenl gaol delivery in either case to proceed to trial, must be conferred under a special authority. An ordi- nary Court of Oyer and Terminer and general gaol de- livery for the district of Quebec, could not take cogni- 2ance of offences committed in the Indian territories, which is without its district, neither could the ordinary commission of a general gaol delivery for the county of Middlesex, extend to the trial of a prisoner accused of a murder, or high treason committed without the realm. But the statutes of 35 Henry YIII. and [the 43d of the King, confer an extra jurisdiction ; the one authorizing treasons, &c. committed out of the realm to be tried un- der a special commisson, and the other conferring on the usual Courts of either district of Lower Canada, and by instruments under the great seal of this province, de- claring that justice may be more conveniently adminis- tered iV 89 iered in Upper Canada upon the Courts of that province also,* the power of trying offences committed in the In- dian Territories and consequently out of their ordinary jurisdiction. A great deal has been urged relative to the transmission to Upper Canada of the individuals for tri- al for all offences who have been subsequently indicted in Montreal for offences alleged to have been commilted in the Indian Territories previous to the date of the great seal instruments. If the Court who have found the bills of indictment had no power to do so, can i£e have power to interfere. How can we possess any superior power Qver offences committed in the Indian Territory beyond a Court of a siniilar description in another district. By what mode can we get their proceedings before us ? A certiorari could not issue directing a Court co-equal with ourselves to send them up. Py the statute 43. Geo. III. any of the usual Courts in this province are competent to the trial of indictments for offences allege^ to have been com- mitted in the Indian Territories — theu we can not inter- fere. If it is (as undoubtedly it is) at the option of the Crown to select its judicature, and it has done so, as- suredly in those particular cases, wre stand in the predi- cament of haying no power ^o try the defendants, and, therefore this application to us to discharge them aiid their bail from recognizances entered into in conse- quence ©f proceedings had in that very Court, which the Crown has chosen, is nugatory. The application ought to be made to that Court which has powpr to try the of- fences alleged to have been committed. It is useless to petition this Court, because we in fact, have no power M over * See Api^endix B. being the act of the 43d of the King allud- ol to, jcommonly called the Canada Jurisdiction Act. \'\' i I •. ! 11^ ^li n 1 L ! \ ■ i ■1 1 t i ,;h ! , t 1. 1 1. y ! ) ' i 1 ; Ci ■ , • ^ 1 If ' ^'1 I \'. i] ■ i Ik over mafters done in another jurisdiction, at least you d* not attempt to shew us that we have any jurisdiction. We are a Court sitting under a general commission of Oyer and Terminer and general gaol delivery, and tlie distinction between our authority and that of a superior Court is manifest. In 12th Modern Reports there is a case in which the distinction of jurisdictions is com- pletely set forth : it is an admiralty case. The sugges- tion was that process had been issued of a thing out of their jurisdiction, but the Court held that their process would shew as a matter of record how it came within their jurisdiction, and presuming that every thing had been done right till the contrary had been shewn, refus- ed to interfere in the way they were petitioned or mov<: ed to do. This is completely the case here, except that we are an inferior Court, and the application in that case was to the Court of Icing's Bench. Proceedings in the cases under discussion have been had in another district^ the district of Montreal, and the Court in which thej have been taken is a competent authority to continue them. If they have been in error, an application to the Court of King's Bench | in that district might be made to remove their proceedings, and by that means the neces- sary correction would be made. In these cases indictments have been found, and pro- cess of Court has issued in consequence thereof. The exercise of the sovereign authority in the election of its Court is apparent. It is no informal notification we have of this circumstance. The act of electing the Court of Oyer and Terminer for the district of Montreal, has been followed up by the interposition of the grand jury, who have returned bills against the defendants. The solemn act Hi tl irct of the CrowD is therefore evident from the applica- tions themselvesj because the necessity of relief arises therefrom. The diflferent Courts of competent jurisdic- tion are all open to the Crown, and although the pro- ceedings had in the Court that has been selected are not before us in any shape^ the applications shew that pro- ceedings must have been had. Upon the whole argu- ment we would remark that there should ha.ve been shewn some act of the government selecting this as the special Court in which the applicants were to receive their trials befoie these motions could be presented with a prospect of success. In the opinions which have been submitted to the Court the question involving the difficulty has not been touched at all. It has not been attempted to be shewn that we possess a jurisdiction in the cases that have been presented to our nDtice. The difficulty in this is precisely that which occurred in PlatCs case. Over oi- fences conunitted in the ordinary way in the County of Middlesex^ the general commission of gaol-delivery, un- der which the Court sat authorised them to act, but the case of Piatt j[was that of high treason, committed mth' out the realniy and therefore by the statute of 33 Henry VIII. only to be tried in the Court of King*s Bench or under a special commission, and therefore the Ccurt said, *' to petition a Court of gaol-delivery who have uo " power at all to try the prisoner is nugatory and " void." In the particular . cases before us we are equally without jurisdiction. Some of the gentle- 4nen are not under recognizance, nor are there any re- cognizances before us at all. In the argument very great anxiety has been shewn to impress upon the Court the liardship of the cases of these gentlemen and of the dif- M 2 , iculties 'Iki iii i I ! {• i f\i '-l I ; ■f } n Jiculties io which they will be subject should the Court refuse io grant their motions, but the very principal dif- ficulty of the whole has not even by inference been adver- ted to. These indictments being found ate not to pre- vent the individuals affected by them from proving their innocence io another Court, but it must be noticed that they were not called to substantiate it here. -According to the affidavits the recognizance entered into by some of the gentlemen was tt> appear when and wheresoever' they might be legally required so to do. But they were not called upon to appear here to answer to indictments found in a Court of another District, and over whose proceedings it is impossible that we can have any con- troul. I shall make no reference to the observations that have been addressed to our discretion upon the merits of the applications arising from the peculiar circum- ttftncesofthe cases. Of them we can know nothings that is, they can not operate upon our decision on the abstract question of law contained in the motion. Up- on them, the gentlemen under recognizance, with th€$ exception of Mr. McLellan, can takei nothing. With respect to the other gentlemen as they are in noway be- fore us, we can give no opinion. Upon the whole, here we have no jurisdiction in these cases ; the pro- ceedinf^ in them liave been found in a court of another district co-equal with cftirselvcs, and it is impossible that we can interferd with them, whatever the Court of King's Bench might feel itself authorised ijo do. ^ ' > '■'■ • "^ The order of the Court is that the gentlemen do take* nothing by their motions. Mr. McLellan, there being nothibg alleged against him on the part of our Sove- reign Lord the King, is discharged. ' ' - * The Court was then adjourned till the 24th day of January 1S20. ap- 93 : ^ ' (APPENDIX A.) . ,yf PttOVlNCE OP ^ J ^ . i I. Lowlr-Canada. J * ' ^ ; ^ (Signed) J. C. SHERBROOKE. GEORGE the Third, hy the Grace of God, of (L. S.) the United Kingdom of Great Britain and Ireland, Kin§^, Defender of the Faith, TO our trusty and well beloved, the Honourable Jonathan Sewell, Esquire, Chief Justice of and for our Province of Lower-Canada, the honourable James Monk, Esquire, Chief Justice of our Court of King^s Bench for our District of Montreal, in our said Province of Lower- Canada, the honourable Oliver Perrault, and Edward Bowen, Esquires, Justices of o»ir Court of King's Bench, for our District of Quebec, in oxir said Province of Lower- Canada, the honourable Isaac 0gden, James Reid and Louis Charles Foucher, Esquires, Justices of our said Court of King's Bench, for our said District of Montre- al, and the honorable Pierre Bedard, Esquire, the Pro- vincial Judge for our District of Three Rivers. Know Ye, that we have constituted and assigned you^ or any two of you, of whom wc will, ydu the said Jona- tlian Sewell, or you the said James Monk, to be one, out Justices, the Gaol of our said District of Quebec of th f ' i 1 j 1 ' '1 iHi I) i ) TT • i\ 94 iipoR v/h&i to Justice shall appeHaiii, according to the l^iiws and customs of England, and of our said Province of Lower-Canada, saving to us our amerciaments and other things to us thence appertaining. For we have commanded our SherifTof our said District of Quebec, lliat at a certain day, which you or any two of you, of whom we will you the said Jonathan Sewell, or you the said James Monk, to be one, to him shall make known, all the Prisoners of our said Gaol, and their attachments before you, or any two of you, of whom we will, yoa the said Jonathan Scwel!; or you the said James Monk, to be one, he then cause to come. In Testimony whereof, we have caused these ouf Letters to be made Patent, and the great seal of our Province of Lower Canada to be hereunto affixed, and the same to be entered of record in our Register's office^ dr office of Enrolement, in our said Province of Lower Canada. Witness our trusty and well beloved, Sir John Coape Sherbrooke, Knight Grand Cross of the most Honourable Military Order of the Bath, Captain Gen- eral ancUGoverndr in Chief, in and over the Province of Lower Canada, Vice Admiral of the same, &c. &c. &c. at our Ca'sflecf St. Lewis, in our City of Quebec, in our said Province of Lower Canada, the twenty ninth day of April, iii the year of our Lord, one thousand eight hundred and eighteen, and in the fifty-eighth year of our Reign. --'■- ' " ^*'-*'*/"^. - '• (Signed) J. C. S. (Signed) John Taylor,J ' "• ' Depy. Secy. »M »■ 'ik- ^4 pRt" i, ' "-I 91 i \> FaoTiNci OF > X^owEn Canada. $ ' ' (Signed) J. C. SHERBROOKH. GEORGE the Third, hij \h^ Grncr of God, of (L. S.) the United Kingdom of Great Hritain an^ Ireland^ King, defender of the Faith, TO our trusty and well beloved, die Honourable Jo- nathan Sewell, Esquire, Chief Justice of and for our Province of Lower Cann da, James Monk, Esquire, Chief Justice of our Court of KingV Bench for our District of "Montreal^ in our said Province. Tiie Honourable Oli- ver Perrault, and Edward Boweu, Esquires, Justices of our Court of King's Bench for our District of Quebec, in our said Province of Lower Canada, the Honourable Isaac Ogden, James Reid, Louis Charles Foucher, Esquires, Justices of our said Court of King's Bench fo^ our District of Montreal, and the Honourable Pierre Be^ dard, Esquire, the Provincial Judge for our District of Three Rivers, in our said Province. Know Ye, that wc have constituted and assigned you, or any two of you, of whom we will you the said Jona- than Sewell, or you the said James Monk, to be one, our Justices to enquire more fully the truth, by the oatlis of good and lawful men in the District of Quebec, in our said Province of Lower Canada, and by other ways, methods, and means, by whicli you shall or may tl^c better know, as well within liberties as without, by whom the truth of the matter may be the better known and en- quired into, of all Treasons, Misprisions of Treasons, Insurrections, Rebellions, Counterfeitings, Clippings, Washings, False Coinings, and other falsities of the mo- (; ]■■ ;if Hi! i It ■ ^ ,( ■I • ffaiuCi. f#l^ \i\i- ;M^^ ^^f : Ml K 5 ij 45 .^ money of Great Britain and other Kingdoms and Domi* jiions whatsoever, and of all Murders, Felonies, Manf slaughters, Killings, Burglaries, Rapes of Women, un- lawful Meetings and Con^ enticles, and unlawful utter- ing of Words, Assemblies, Misprisions, Confederacies, False Allegations, Trespasses, Riots, Routs, Retention, Escapes, Contempts, Falsities, Negligences, Conceal- ments, Maintenances, Oppressions, Champerty, Deceit, and all pjlher evil doings, offences, and injuries whatso- ever, and also the accessaries of the s^me, within the District aforesaid, as wellwithin liberties as without, or committed within any of th^; Indian Territories, or part^ of America not within tliie limits of either pf the said Pro- vinces of Upper or Lower Canada, or of any civil gov? crnment of the United States of America, by whomso- ever, and in what manner soever, done, committed oy perpetrated, and by which person or persqns, how and after what manner, and of all otlier articles, and circum- stances, concerning the premises, and pvery of them, or any one or more of them, in any manner whatsoever ; and the said Treasons, and other the premises, accord- ing to the Laws and customs of England, and of our said Province of Lower Canada, for this time to hear anc| determine, and therefore we command you, that at cer- tain days and places which you or any two of you, of whom we will you the said Jonathan Sewell, or you the said James Monk, to be one, shall for this purpose ap- point, you do, concerning the premises, make diligent enquirj', and all and singular th^ premises hear and de* termiiie, and those things uo and fulfil in form aforesaid, ivhifh aje to be done as to justice doth belong, accord- iT r^. ., of the ap- ^gent de* Isaid, lord' '• Mm Ing to the laws and customs of England, and of our said Proyince of liower Canada, saving to us our amercai- ~inents and other things to us thence appertaining. For Vfe have commanded, and hereby do command, our She* riff of our said District of Quebec, that at certain days and pUices which you or any two of you, of whom we will ydu the said Jonathan Sewell, or you the said James Monk, to be one, shall make known, to cause to come before you, or any two erf* you, of whom we will, you the said Jonathan Sewell, or you the said James Monk, to be one, such and so many good and lawful men of his Bailiewick, as well within liberties as without, by whom the truth of the premises may be the better known and enquired into. In testiiniony whereof, we have caused these our letters to be made patent, with the great seal of our said Province of Lower Canada to be hereunto affix" ed, and the same to be entered of record in our Register^;? office, or office of Enrolements, in our said Province of Lower Canada. Witness our trusty and well beloved. Sir John Coafe SHEaenooKE, Knight Grand Cross of the most Honourable Military Order of the Bath, Captain General and Governor in Chief in and over the Province of Lower Canada, Vice Admiral of the same, &C. &c. &c. at o^r Castle of Saint Lewis, in our City of Quebec, in our said Province x>( Lower Canada, this twenty ninth day of April, in the year j'uj V ^ . Depy. Secy. > '^■ N. B. A subsequent instruBKmt added the name ol Alexis Q!aron, £s^nire, King's Counsel to the Cojj^mipsion. ' - • N • ' AP- ! ; i I, .1 i :\ . [1 f : t 1 •j 'i ' n t; r) jiiill f 1 i- ,:; T ■■-: i^' '■ ^:? ',' , .^< ■f li J' { i 1 ii t i IV 98 M * list (ii'n ii >»j)t,; ,, T (APPENDIX B,) Anno Quaoragesimo tertio GEoiicii m. Heois. CAP. cxxxviii. -ijiifi ati'* ii.ruri't n'jfia'^ML An Act for extending the Jurisdiction of the Courts of Justice, in the provinces of Lower Canada, and Upper Canada, t^ the trial and punishment of persons guilty of crimes and offences, within certain parts of North ' America, adjoining to the said provinces. '? ...^s. f • (11/A AirotrsT, 1803.) A:- ■ -i-^ tr... Wfl e R E A s crimes and offences have been committed in the Indian territories and other parts of America, not ivithin the limits of* the provinces of Upper or Lower- Canada, or either of thera, or of the juri&dictiou of anjr of the Courts established in thoke provinces, or Tvitbiii the limits of any civil government of the United States gf America, and are therefore not cognizable by any juris- diction whatever, and by reason thereof great crimes and offences have gone, and may hereafter go unpunished, and greatly increase —For remedy whereof, May it please your Majesty, that it may be enacted, and be it enacted by the Klng^s most excellent Mr^esty, by and with the consent and advice of the Lords spiritual and, temporal and Commons, in this present parliament assembled, and by authority of the same, That from and after, the passing of this act, all offences committod witbin any of the Indian territories, or parts of America, not within the limits of either of the said provinces of Upper or Lower Canada, or any civil government of the United States of America, shall be, and be d^med to be offences of the same '9> ixame nature, and shall be tried in the same manner and sub- ject to the same punishment, as if the same had been com* mitted within the provincesof Lower or Upper Canada. 2d. And be it further enacted, that it shall be lawful for the Governor or Lieutenant Governor, or person ad- ministering the government, for the time being, of the province of Lower Canada, by commission, under his Ikand and seal, to authorize and empower any person or persons wheresoever resident, or being at the time, to act as civil magistrates and justices of ihe peace, for any of the Indian territories, or parts of America, not within the limits of either of the said Provinces, or of any civil government of the United States of America, as well 99 within the limits of either of the said provinces, either tipon informations taken or given within the said pro^ vinces of Lower or Upper Canada, or out of the said pro- vinces, in any part of the Indian territories, or parts of America aforesaid, for the purpose only of hearing crimes and offences, and committing any person or persons guilty of any crime or offence, to safe custody, in order to his or their being conveyed to the said province of Lower Canada^ to be dealt with according to law, and it shall be lawful for any person or persons whatsoever, to apprehend and take before any person so commissioned as aforesaid, or to apprehend and convey, or cause to be safely conveyed, with all convenient speed, to the pro- vince of Lower Canada, any person or persons guilty of any crime or offence, there to be ..:*-•;% ^U ■ f?.v ->^^ -iftf ■ lift I ! ' i i 101 <)eiflTa1id and effectual, and be in full force, and put in execution in any parts of the Indian territories, or other parts bf America, out of, and not within the limits of 4he civil government of the United States of America, as vrell as within the limits of either of the said provinces of tipper or Lower Canada, in relation to the trial of any crimes or <^ffences by this act made cognizable in such Court, or to the more speedy and effectually bringing Itny offender or offenders to justice under this act as fully and amply as any subpcenas or other processes are with* in the limits of the jurisdiction of this Court, from which any such subpoenas or processes shall have issued as aforesaid ; any act or acts, law or laws, custom, usage, matted or thing to the contrary notwithstandjn^. 4th« Prodded ahoays^ and be itfufthtr enacted, that if any crime or offence charged and prosecuted under this act shall be proved to hayebeen committed by any |)ersen or persons ndt being a subject or subjects of His Majesty and also within the limitti of any colony, settle- ment or territory, belonging to any Bi^ropean states, tlie Court before which such prosecution shall be had, shall forthwith acquit such person or persons,' i^ot being suc^ subject or subjects as aforesaid, of such charge. §th. Proved nevertheless f that it shall and may be lawful for such Court to proceed in the trial of any other |)erson being a subject or subjects of his Majesty, who shall be charged with the same or any other offcnce<, notwith« standing such offen-c ^hall appear to have been commit- ted within the limits of any colony, settlement or territo- . Ty, belonging to any European state as aforesaid. i f t I ( ; I! 1^ lit! ,,ij f AP- /■'T !0S !!'t j;M'i ; m MM I i 1 ' ,-,; iiKjFjfio jf)' ' (APPENDIX C.) ■ 7 %af. r>rft»{«fi'Kr Memorandum md Abstract of papers Jiled in CeurthiJ If, ;,t- ■ (Jit iji'? '■■ . ;;...,4i.^ .« -J • sSj/ c consent, • I. — rGeneral afEdavit of Henry McKenzie, Esqiiire, .^ j^. , of which the following i§ a copy t-*- ># i "j ^ i Province of > ' • n.!^Mt.r_ t^i *"^■^v^f^.^ 10 ?w«/ifr.:. A >{ "^i V>** ' General Gaol Delker^. '"' ' Sxparte Archibald Norman ) tT^^i?: Cottr/ q/* Oi/cr and Terminer anct . f '-'*' ^i''; J<*u McLboo, Esquire, et aU Henry McKenzie,of Montreal,^in the district of Moni* real, esquire, merchant, one of the agents of the North West Company, being duly sworn, deposeth and saith, that since the month of September, of the year 1816, he has been principally employed as agent on the parts of the partners and servants of the said conipaiiy, who were and are alledged to have q6mmit;ted crimes and of&nces in the Indian Territories, and as such agent was one of the persons who, from time to time, had communica- tion with His Majesty's Provincial Government, and jllso with the law servants of His Majesty in this province and iu' Upper Canada, respecting the said supposed crimes and offences, and the trials of the said partners and servants of the Nortli West Company, who were alledged to have committed the same. That the Honor- 2(ble Williaiii McGillivray, principal agent of the said N^orth West Company, had the principal management Hud conduat of the said correspondence, as well witli^ His • *'.t. ■. "4 103 His Majesty's Provincial Government in tlie said two provinces, asivith the law servants of His Majesty in the same provincci^, and that the letters, notices, ans- wers, and other commnnications, as well from govern- m;;nt as from the said law ofitcers, were for the most part directed to hin as such principal agent. That the said William McGillivray is at this time absent from this province ; and this deponent is well informed, and doth in his consciehce verily believe^ that the said Wil- liam McGillivray is now at York, in the province of Upper Canada, there to attend as witness and private prosecutor in a Court of Oyer and Terminer, or some other Court having criminal jurisdiction, on a certain indictment found agiiinst Thomas Eurl of Selkirk, and ■ diverts others, for a conspiracy said to have been enterc. m I i K I ! I !«! t lihtoaAnexed marked A. (l.) is ktnusjukd cotrect capy^ in ibis deponent verily and in his conscience believes. l)hat *■'- ■•■■■■^ on •i it (1.) This memorial, after giving a brief outlin* of the pro- ceedings of the Earl of Selkirk^ and the. vautiotti delays which took place in the imbsequetlt law transactions, Mrent otx to relatt his Lerdship's conduct in the following tarms :~^ rr\ (( 4t (( U « " The £2arl of Selkirk, however, insteiid of ' "uting to tneet the investigation of his own conduct, or to support hb charges against his prisoners, proceeded to the interior of the Indiaii countries, from vrhence he only returned to this proivince in January last, and then, iniMead of eStaUishing his ehai||«8 a* gainst the partners and servants pf the North West Company who had been so long waiting for trial, he beilt his Whole at»» tention to framing and producing fresh chargjss against penom " still ronaining in the interiof coiutry, and who could not for *' many Aonths have an opportupity to defend dwmselveik A ** Court of Oyer and Termlber, competent under the dovinis* " sions already mentioned, to try ihe persons under reoognizanga *V and waiting for trial, beiiig held at the seat of govemnwnt in *' Upper Canada ip April last, these persons proceeded thithetr ^* with their witnesses at gneat ezp^nce, and with much person^ " iuconvenienca, but no prosecutor i^peared, nor Vfen tb« *' crown Uwyejri furnished vnth the necessary instructions oi^ evidence to bring forward any churges against them, although such charges, jmd d|k:uments purporting to support them, had ** been long before printed and indnstriousty circulated by tho *^ Earl of Selkirk and his adherents in both provinces. In tha *' mouth of July, however, when it was perfectly notorious and • ** well known to his Lordship that the necessary avocations of ** the season required the presence of the agents and partners of M (( ' d?^ *i the > i Hi ♦••• ', I on 105 on or aljout the 3d day of February next following and now past, ihe said Duke of Richmond, then Governor in Chief kl <( «( t( << 4( It <( (( u M (( <( U « (( • • «( (( »^' 108 li, ' ■■■'; li»i having wen and perused the original thereof. That n written notice from Charles Marshall, Esquire, Solicilor General of Lower Ciinadu, was given by him to the siiid Wiiiium McGillivray, and came by post to him nt Mont- real, on or about the 26tli of May last past, and this de- ponent saw it then at Montreal aforesaid, in the hands of •'• ■>' " '. ' >• > I., .-lit.ii. .va:* •..•,' M.^L '■'!.! marked' ft it « «« ** seize tiieir netsia a rrouatry where fish I'orms their solesubsist- " ence during the winter, evinces such hardened depravity of mind, and crueUy of disposition, that your memorialists could not expect it to be bohuved on any less authoj^ity than the evi> denco of his Lordship's own liaud, which they will produce Tor your Grace's satisfaction, but the letter they nmst retain t* be brought forward in the courts of justice in England/' The memorial then goes on to state the various |legal pro- ctedings till then had in the Courts of L«wer and Upper Canada, and, expatiating upon the unnecessary measure of warrtmts being ihsued against parties who were constantly in attendance, or on their way seeking their trials, proceeds to make an oiler, that '.' if- " any individuals connected with the North West Company shall - ♦* be selected by the crown lawyers as persons against whom- " there is fair and reasonable ground of accusation, your laemo- " rialists will use every effort to procure such persons for trial, " and any of thair partners they will absolutely engage to pro- " duce." The memorial concludeg with a short recapitulation •f Lord Selkirk's projects and raanceuvres, his persevering malignity and- " inveterate enmity towards the North West Company, in devig- " ing means of continued persecution from proceedings which *.' are now proved to have been from the beginning, maHcious, «* vexatious, and Unfotmded," and finally prays for a special Court of Oyer and Terminer in the words, — quoted page 13. the said William McGillivray, of which notice the copy .u. 1P- ■'. 105 marked C, and also subjoined to the said herein before- mentioned copy murited A, is a true copy, to tlie best of tiiis deponent's knowledge and belief. C^) And this deponent upon his oath aforesaid, further saith, that up- on the receipt of the said notice froui the said Solicitpear, pages 14, 15, 16 and 19. (3) Mr. J. D. Campbell ^nd others who, ia pursiiance of tha notices given, were voluntarily xmx their way from the int^-rior coun- try in order to have their trials, were forcibly taken in June last by the people of the Hudson's Bay Company (jis appi»ars by the indictments tor assauU and false imprisonment menticnod pages 4 and 3,) and carriinl round by Hudson'*- Bay, where they were de- tained a considornhle timt% and by having been conveyed by 'that circuitous route, thoy did not reach Montreal till the 3(;th of No- vember, whilst otherwise they would hare presented themselves with the other gentlamea ttt the Court of which tho procecdiuga are here reported. '/ :1 ' If ( ,i •v.. v. ^ n ^ ! 11 9-^ I S W: ' w S- no absence from the trading posts of the said North West Company on such their voyage to Quebec, ivhich mea- sures 'were in consequence immediately taken, as far as the same were practicable ; and this deponent further saitb, that he was personally present in the Court of King's Bench Iield for the cognizance of crimes and offen- ces at Montreal, in the month of March 1818, and that he theji heard Norman Fitzgerald Uniacke, Esquire, At- torney General of Lower Canada, publicly say and de- clare in his place in Court therj, that no impartial Jury could be had in the district ol Montreal for the trial of the crimes and offences committed in the Indian Territo- ries, and that he would not voluntarily brmg any persons to trial for such crimes and offences in the district of Montreal, and that he would give his opinion to that ef- fect to the Governor ; and this deponent further saith, that from that open declaration of the Attorney General, it was thence forward bona fide believed by this depo- nent and the other agents of the North West Company, as he verily believes, that no trials would thereafter be had at Montreal for any crime or offence said to have been committed in th^j Indian Territories, either by the partners and servants of the North West Company, or by the Earl of Selkirk or his servants ; and this deponent further saith, that certain bills of indict- ment had previously been found in the said Court a- gainst John Spencer, Colin Robertson, and other ser- vants of the Earl of Selkirk, for certain crimes and of- fences alledged to have been committed by them in the said Indian Tcrritoriesj upon which biliS| such of the .. ^. said Ml ■ %, 111 feaid persons thereby accused, ivlio Lad appeared there^ to, had respectively filed pleas to the jurisdiction of the •aid Court, and that the said pleas were never brought to a hearing, or in any wise proceeded upon by the law servants of the crown. That bills of indictaient were found in the said Court in the same month of March, 1818, against divers servants of the Earl of Selkirk, for crimes and offences supposed to have been committed hj them in the Indian Territories, that is to say, against Colin Robertson, John Bourke and Michael Heden, for a riot and false imprisonment, against John Spencer and Miles Macdonell, as accessaries before and after the far\ to grand larceny ; against Michael Macdonell and Miles Macdonell, as accessaries before and after the fact, to ^'•stnd larceny; against Colin Robertson, John Bourke, Michael Heden, Martin Jordan, Michael Kilbride and Hug^ McLean, tor stealing in a dwelling house above the value of forty shillings ; and against Miles McDo- nel, for an, assault and battery, which several indict- ments were not proceeded upon in the same term •£ March, having been found towards the close of that term. And this deponent further saith, that a Court of Oyer and Terminer and general Gaol Delivery, being holden at Montreal aforesaid, in the month of May in the same year, the said attorney general Norman Fitzgerald Uniacke, Esquire, intimated to David Ross, Esquire, of counsel for the said North West Company, on the Vih day of that month, that if new bills of indictment were not preferred by the said North West Company in that Court of Oyer and Terminer, and found against said Colin r>^ ; /'ht 'I . n ] ' *' ^n I 1 I: ■ lit I r iH ■* !>«■* ^*: i* i :« if Colin Robertson, John Bourke, Michael Heden, Joh« Spencer, Miles Macdonell, Michael McDonell, Martin Jordan, Michael Kilbride, and Hugh McLean, during the sitting of that Court, he, ihe said Attorney General, ■would enter a noli prosequi in each of the said several indictments found in the said Court of King's Bench in the month of March then last past, and that this informa- tion having been communicated to the agents of the said North West Company, the said William McGilUvray, principal agent of the said company as aforesaid, wrote and sent to the said Attorney General, and also to the Solicitor General of this province of the 11th of the same month, certain remonstrances in writing, bearing date the same day, and directed to the said Attorney General and Solicitor General, of which remonstrances * a true copy is hereunto annexed marked D, And this deponent further saith, that the facts stated and set forth in the said written r^nonstrances, and each and every of them, are true to the best of this deponent's knowledge and belief. And this deponent further saith, that on the l6th day of the same month of May, the said Attorney General did file a noli prosequi in and to each of tlie said several bills of indictment so found In the srid Court of King's Bench in the month of March aforesaid. And this deponent farther saith, that on the second day of June of the same year, the said William McGilUvray wrote to his Excellency Sir John Coape Sherbrooke, then governor in chief of this province, the original let- ter, of which a true copy marked E. is subjoined to the ^ said remonstraac* D. and at tlie same time sent to the * ^ " ' , ' said 'If V < 113 eaiil Sir John Coape Shcrbrooke, a copjr of the said re- monstrances, 'i'hat in answer to the said letter, the said Sir Jqjhn Coape Sherbrooke wrote and sent to the said William McGillivray, the letter of which a true cop^ marked G. is also subjoined to the said hereinbefore mejitit)ned copy of remonstrances marked D. and also sent to the said William McGillivray, with tb o same let- ter on or about the 23d of the same month of June, copy of a letter or report from the said Attorney General, bearing date the 19th of the same month, and of which a copy marked F, is also hen^unto annexed, subjoined to the aforesaid remonstrances. And this deponent fiir* ther saith, that after ivards on or about the 3d day of October of the same year 1818, the said William Mc- Gillivray wrote and sent a letter to Lieutenant Colonel Ready, civil secretary to the Duke of Richmond, then governor iA chief of this province, to be laid before the said Duke of Richmond, with certain remarks in writ- ing inclosed for that purpose with the said letter, and of which letter and remarks copies marked H. and I. are al- so subjoined to the said copy of remonstrances here- unto annexed marked D. And this deponent further also saith, that the said remarks in writing are a true and correct statement of the facts therein stated to the best of this deponenf s knowledge and belief. And further, that on or about the eleventh day of October of the same year, the said William McGiUirray received from the said Lieutenant Colonel Ready in answer, a certain let« ter dated the 9th day of the same month, and of which a true copy marked J. is also gubjoined to the said copy P ef V •I ' M ^ ^%.- , I ,^' k^i' t\ / i n I r ;4 f. \ ' t.-"' 1 .' 114 •f remonstnuices marked D. hereunto annexed (4.) Antl this deponent further saith, that he is credibly infornied| hath good and sufficient reason to believe, and doth in his conscience verily believe, that warrants have been issued at Montreal in the summer of the year 1818, for the apprehension of a large number of partners and ser- vants of the North West Company and others, at the suit of the Earl of Selkirk, and that the said warrants have been directed to^ and are to be executed in the Indian Territories by divers servants of the said Earl, and other persons partial to his interests, and personally hostUe to the said North West Company ; and that the said warrants have been sent into the interior of the In- dian Territories, there to be carried into execution and effect. And this deponent further saith, that he hath seen one of the said warrants at Sandwich, in the hands of one James Mcintosh, then in the service of the Earl of Selkirk, which warrants, signed by Frederick William Eimatinger, sheriff of the district of Montreal, was di- •'•'.^ ' : >■ - ■■., /^ rectei, ■ ;,v . - h' .' ". !!0. ^: ^' % .« t (4) These remonstrantes to the Crown and to Goremmeat with the Attorney GenOTal's report, and remarku on that report form a series of bulky dociimentt containing for the most part a recapitulation of the matters^ the main substance of which is iuter« woven in the preceding pages, uA it is Mi therefort deemed ad- •oesMry to insert them here. ^ ¥- 115 wcted to the bett of this deponents reco1Iectio« and b«* lief, to one Robert Dickson, one John Ijaw, one Duncan Graham, one Louis La Freniere, one Lauia Gagnon, on« Patrick Corcoran, and the said James Mcintosh, and commanded them to apprehend and tike the Honorable William McGillivray, Archibald Norman McLeod, Duncan Cameron, Jolm Dougald Cameron, Alexander McDonelt, John Duncan Campb^l, James Leith, John McLaughlin, John Thomson, Hugh McGillis, Archi- bald McLelhin, John Haldanc, James Hughes, Thomaf McMurray, Daniel McKenzie, John McDonald, Allen McDonell, James Grant, Seraphim Lamar, John Sive- right, Simon Fraser, Cuthbert Grant, William Shaw^ Peter Pangmau dit Bostonais, Alexander Fraser, Michel Bourassa, Thomas McKay, Robert Montour auas B ,.„ , , S8th day of October, 1819, J ; Before me, (Signed) ALEXIS CARON- P$ a. ...f OS iV^- ,( / »^', A :«1 m II.— General Affidavit of Archibald Norman McI itreal in ately on nfbrmed nst hini^ eal, and •endercdt ce entcr- the said s Monkj lontreal, night be id made endance at Que- frora the Indian i' \ J I? Indian Territories from a distance of several thousand miles ; and further, that he had in conjunction with Mr. r^citb, prcspiited his memorial to his Honor the Prcsi- Jent, wliich produced the letter of Colonel Heady in reply, dated the 5th October, inserted in page »!>. V. — Affidavit of James Leith, Esquin-, on his own be* h.ilf, stating his having given bad at lied River to the Hon. W. B. Coltraan, special coinmissioner^ in Septem- ber 1817, to appear in the Court of Ki„g's Bench at Mdntreal ; that he had done so, and that he had there entered '.nto a fresh recognizance to ajji^t ,it at itie ensu- ing term of that Court, and also at any 0A. J In tkeOmrt of Operand Terminet and Gentrtd Gaot IkUwnf, fficpiurie Albxakder ^MTacdonsll. Aleu^wi^r Macdonell of Laser SUnje Lake in the Indiap T^rniorie^ |pw at the jtty of Quebec, merchant, hpartiit of the Hetf#i llV'ellO&pany, being dnly sworn, deposetb atij taith, ftkiA onJr«^ut the fOth day of May lafitpa^ this deponent the distance ef^more tHIto city of Quebec, and haVlijig crimes and ofihicei weti rants issued at Montreal fof ftom that place with the im er Canada io take his trial did^ipcordingly arrive at Fo: pot # ||ie said North West C^] at Lesser Slave Lake at thonsaml miles from thif viously heard that great his charge^ and war* ihensioB, he depart* proceeding to Low* rges existed, and ^ principal^e* about thft 14th day Kxf #idy last, thele tb with the agenti of the mid North Weftld^any. 1^4 he had previomily met the llonora!]^iirilUam McG^|» ▼ray, princ^ agtiit of thefpid Noith West Company, betweai ' ffi 111 nrx'.Jiii < L. " ' SiatT i,:A IS 'til it |l< g ! fll! I'.l 1 1 119 between Fort William nnd I.nc 1;i Plulc and li.id been in- formed by liim Ihat a Conrt of Oyer ji"d Tciminor sbould be holdcn at Quebec on llic 2d November next A)r (lio trial of all crimes and oObnccs nllcdgcd to liavc luvu committed in the Indian Territories, and tlic said Willi- ain Mc Gillivray bad llien informed this deponent tliat a notice to that cITcct liad been (ransmillcd to him by tlu? Solicitor General of Lower Canada, ■\vliereupon this de- ^ poncnt determined to come to Quebec to take his trial iKjforc such Conrt. TJiat the deponent left Fort Wil 1 iar.i on the 22d day of August last on his journey to Quebec for the purpose aforesaid and brought several Avitacss-'Vi Tvith him from the interior of the said Indian territory. That the distance between Fort William and Lcssci* Slave Lake exceeds two thousand miles, and tliat travel- ling between those two places is extremely difficult, and this deponent further saitli that he did personally attend this Honorable Court on the 2lst. of October instant, wa«; then and, there with his witnesses ready to take his trial for any crime or ofTcnce which ought io be laid to Iiis charge and that he was so present in consequence as well of .the said information so by. him obtained at Lesser Slave Lake, as of his subsequent conversation with tho said William ]\Ic Gillivray between Lac la Pluic and Fort William, and also in consequence of a letter from Lieut. Col. Ready, civil secretary to his Honor the Presi- dent, dated the 5th day of October instant, in answer io the petition presented to His Honor the President of ihh Province by Messieurs James Leith and Archibald Nivj- man Mc Leod on the second of the same month, whic h last letter informed the said petitioners that a Coiut. of Oyer 120 Oyer tind. TcnmccT ivns Yn be- half, thailio had been tried upon an accusation of felony and murder in the present Court, on the 15th Jane.ary 1S18, and bad been acquitted; that he then had enter* cd into a recognizance for bis further appearance to an- swer to such other and furtljcr charge as might be pre- ferred against him. That he has in consequence been l)ecn compelled to resort to this province from time to time to prevent his said recognizance from being forfeit- ed ; that nothing had since been preferred against him or any matter objected figaijist him in this Court on the part * of the Crown, and that nevertheless there are at this time "warrants in existence in the Indian Territories foj* his ap- prehension on a charge or charges of some supposed of- fences. ,■ - I - I ! ■ I - - I I -■ ■■ ■■ ■ I - ■■ ' • ' ~ ib) See said Icitcr dated 5th October, 1819. pajje 19. FINIS. / Wm. GUAY, Pnn>/..