Part 27 (1/2)
Chief Justice Powell, when on the Bench, had a humorous way occasionally, of indicating by a kind of quiet by-play, by a gentle shake of the head, a series of little nods, or movements of the eye or eyebrow, his estimate of an outre hypothesis or an ad captandum argument. This was now and then disconcerting to advocates anxious to figure, for the moment, in the eyes of a simple-minded jury, as oracles of extra authority.
Nights, likewise, there would be to be described, pa.s.sed by juries in the diminutive jury-room, either through perplexity fairly arising out of the evidence, or through the dogged obstinacy of an individual.
Once, as we have heard from a sufferer on the occasion, Colonel Duggan was the means of keeping a jury locked up for a night here, he being the sole dissentient on a particular point. That night, however, was converted into one of memorable festivity, our informant said, a tolerable supply of provisions and comforts having been conveyed in through the window, sent for from the homes of those of the jury who were residents of York. The recusant Colonel was refused a moment's rest throughout the live-long night. During twelve long hours pranks and sounds were indulged in that would have puzzled a foreigner taking notes of Canadian Court House usages.
When 10 o'clock a.m. of the next day arrived, and the Court re-a.s.sembled, Colonel Duggan suddenly and obligingly effected the release of himself and his tormentors by consenting to make the necessary modification in his opinion.
Of one characteristic scene we have a record in the books of the Court itself. On the 12th of January, 1813, as a duly impanelled jury were retiring to their room to consider of their verdict, a remark was addressed to one of their number, namely, Samuel Jackson, by a certain Simeon Morton, who had been a witness for the defence: the remark, as the record notes, was in these words, to wit, ”Mind your eye!” to which the said Jackson replied ”Never fear!” The Crier of the Court, John Bazell, duly made affidavit of this illicit transaction. Accordingly, on the appearance in court of the jury, for the purpose of rendering their verdict, Mr. Baldwin, attorney for the prosecution, moved that the said Jackson be taken into custody: and the Judge gave order ”that Samuel Jackson do immediately enter into recognizances, himself in 50, and two sureties in 25 each, for his appearance on the Sat.u.r.day following at the Office of the Clerk of the Peace, which,” as the record somewhat inelegantly adds, ”he done.” He duly appeared on the Sat.u.r.day indicated, and, pleading ignorance, was discharged.
In the Court House in 1822 was tried a curious case in respect of a horse claimed by two parties, Major Heward, of York, and General Wadsworth, commandant of the United States Garrison at Fort Niagara.
Major Heward had reared a sorrel colt on his farm east of the Don; and when it was three years old it was stolen. Nothing came of the offer of reward for its recovery until a twelvemonth after the theft, when a young horse was brought by a stranger to Major Heward, at York, and instantly recognized by him as his lost property. Some of the major's neighbours likewise had no doubt of the ident.i.ty of the animal, which, moreover, when taken to the farm entered of his own accord the stable, and the stall, the missing colt used to occupy, and, when let out into the adjoining pasture, greeted in a friendly way a former mate, and ran to drink at the customary watering place. Shortly after, two citizens of the United States, Kelsey and Bond, make their appearance at York and claim the horse which they find on Major Heward's farm, as the property of General Wadsworth, commandant at Fort Niagara. Kelsey swore that he had reared the animal; that he had docked him with his own hands when only a few hours old; and that he had sold him about a year ago to General Wadsworth. Bond also swore positively that this was the horse which Kelsey had reared, and that he himself had broken him in, prior to the sale to General Wadsworth. It was alleged by these persons that a man named Docksteader had stolen the horse from General Wadsworth at Fort Niagara and had conveyed him across to the Canadian side.
In consequence of the positive evidence of these two men the jury gave their verdict in favour of General Wadsworth's claim, with damages to the amount of 50. It was nevertheless generally held that Kelsey and Bond's minute narrative of the colt's early history was a fiction; and that Docksteader, the man who transferred the animal from the United States side of the river to Canadian soil, had also had something to do with the transfer of the same animal from Canada to the United States a twelvemonth previously.
The subject of this story survived to the year 1851, and was recognized and known among all old inhabitants as ”Major Heward's famous horse Toby.”
Within the Court House on Richmond Street took place in 1818 the celebrated trial of a number of prisoners brought down from the Red River Settlement on charges of ”high treason, murder, robbery, and conspiracy,” as preferred against them by Lord Selkirk, the founder of the Settlement. When our neighbourhood was itself in fact nothing more than a collection of small isolated clearings, rough-hewn out of the wild, ”the Selkirk Settlement” and the ”North West” were household terms among us for remote regions in a condition of infinite savagery, in comparison with which we, as we prided ourselves, were denizens of a paradise of high refinement and civilization. Now that the Red River district has attained the dignity of a province and become a member of our Canadian Confederation, the trial referred to, arising out of the very birth-throes of Manitoba, has acquired a fresh interest.
The Earl of Selkirk, the fifth of that t.i.tle, was a n.o.bleman of enlightened and cultivated mind. He was the author of several literary productions esteemed in their day; amongst them, of a treatise on Emigration, which is spoken of by contemporaries as an exhaustive, standard work on the subject. For practically testing his theories, however, Lord Selkirk appears to have desired a field exclusively his own. Instead of directing his fellow-countrymen to one or other of the numerous prosperous settlements already in process of formation at easily accessible and very eligible spots along the St. Lawrence and the Lakes Ontario, Erie and Huron, he induced a considerable body of them to find their way to a point in the far interior of our northern continent, where civilization had as yet made no sensible inroad; to a locality so situated that if a colony could contrive to subsist there, it must apparently of necessity remain for a very long period dismally isolated.
In 1803, Bishop Macdonell asked him, what could have induced a man of his high rank and great fortune, possessing the esteem and confidence of the Government and of every public man in Britain, to embark in an enterprise so romantic; and the reply given was, that, in his opinion, the situation of Great Britain, and indeed of all Europe, was at that moment so very critical and eventful, that a man would like to have a more solid footing to stand upon, than anything that Europe could offer.
The tract of land secured by Lord Selkirk for emigration purposes was a part of the territory held by the Hudson's Bay Company, and was approached from Europe not so readily by the St. Lawrence route as by Hudson's Strait and Hudson's Bay. The site of the actual settlement was half-a-mile north of the confluence of the a.s.siniboine and Red Rivers, streams that unitedly flow northward into Lake Winnipeg, which communicates directly at its northern extremity with Nelson River, whose outlet is at Port Nelson or Fort York on Hudson's Bay. The population of the Settlement in the beginning of 1813 was 100. Mr. Miles Macdonell, formerly a captain in the Queen's Rangers, appointed by the Hudson's Bay Company first Governor of the District of a.s.siniboia, was made by the Earl of Selkirk superintendent of affairs at Kildonan. The rising village was called Kildonan, from the name of the parish in the county of Sutherland whence the majority of the settlers had emigrated.
The Montreal North West Company of Fur Traders was a rival of the Hudson's Bay Company. Whilst the latter traded for the most part in the regions watered by the rivers flowing into Hudson's Bay, the former claimed for their operations the area drained by the streams running into Lake Superior.
The North West Company of Montreal looked with no kindly eye on the settlement of Kildonan. An agricultural colony, in close proximity to their hunting grounds, seemed a dangerous innovation, tending to injure the local fur trade. Accordingly it was resolved to break up the infant colony. The Indians were told that they would a.s.suredly be made ”poor and miserable” by the new-comers if they were allowed to proceed with their improvements; because these would cause the buffalo to disappear.
The colonists themselves were informed of the better prospects open to them in the Canadian settlements and were promised pecuniary help if they would decide to move. At the same time, the peril to which they were exposed from the alleged ill-will of the Indians was enlarged upon.
Moreover, attacks with fire-arms were made on the houses of the colonists, and acts of pillage committed. The result was that in 1815, the inhabitants of Kildonan dispersed, proceeding, some of them, in the direction of Canada, and some of them northwards, purposing to make their way to Port Nelson, and to find, if possible, a conveyance thence back to the sh.o.r.es of old Scotland. Those, however, who took the northern route proceeded only as far as the northern end of Lake Winnipeg, establis.h.i.+ng themselves for a time at Jack River House. They were then induced to return to their former settlement, by Mr. Colin Robertson, an agent of the Hudson's Bay Company, who a.s.sured them that a number of Highlanders were coming, via Hudson's Bay, to take up land at Kildonan. This proved to be the fact; and, in 1816, the revived colony consisted of more than 200 persons. On annoyance being offered to the settlement by the North West Company's agent, Mr. Duncan Cameron, who occupied a post called Fort Gibraltar, about half a mile off, Mr. Colin Robertson, with the aid of his Highlandmen, seized that establishment, and recovered two field-pieces and thirty stand of arms that had been taken from Kildonan the preceding year. Cameron himself was also made a prisoner. (Miles Macdonell, Governor of a.s.siniboia, had been captured by the said Cameron in the preceding year, and sent to Montreal.) A strong feeling was aroused among the half-breeds, far and near, who were in the interest of the North West Company. In the spring of 1816, Mr. Semple, the Governor of the Hudson's Bay Company, appeared in person at the Red River, having been apprized of the growing troubles. During an angry conference on the 18th of June, with a band of seventy men, headed by Cuthbert, Grant, Lacerte, Fraser, Hoole, and Thomas McKay, half-breed employes of the North West Company, he was violently a.s.saulted; and in the melee he was killed, together with five of his officers and sixteen of his people. Out of these events sprang the memorable trials that took place in the York Court House in 1818.
The Earl of Selkirk being desirous of witnessing the progress made by his emigrants at Red River, paid a visit to this continent in the autumn of 1815. On arriving at New York he heard of the dispersion at Kildonan, and the destruction of property there. He proceeded at once to Montreal and York to consult with the authorities. The news next reached him that his colony had been re-established, at least partially. He immediately despatched a trusty messenger, one Lagimoniere, with a.s.surances that he himself would speedily be with them, bringing proper means of protection. But Lagimoniere was waylaid and never reached his destination.
It happened, about this time, in consequence of the peace just established with the United States, that the De Meuron, Watteville and Glengarry Fencible Regiments were disbanded in the country. About eighty men of the De Meuron, with four of the late officers, twenty of the Watteville, and a few of the Glengarry, with one of their officers, agreed to accompany Lord Selkirk to the Red River. On reaching the Sault, the tidings met the party of the second dispersion of the colony, and of the slaughter of Governor Semple and his officers. The whole band at once pushed on to Fort William, where were a.s.sembled many of the partners of the North West Company, with Mr. McGillivray, their princ.i.p.al Agent. Here were also some of the persons who had been made prisoners at Kildonan.
Armed simply with a commission of a Justice of the Peace, Lord Selkirk then and there, at his encampment opposite Fort William across the Kaministigoia, issued his warrant for the arrest of Mr. McGillivray.
It is duly served and Mr. McGillivray submits. Two partners who came over with him as bail are also instantly arrested. The prisoners had been previously liberated and information was procured from them.
Warrants were then issued for the arrest of the remainder of the partners, who were found in the Fort. Some resistance was now offered.
The gate of the Fort was partially closed by force; but a party of twenty-five men instantly rushed up from the boats and cleared the way into the Fort. At the signal of a bugle-call more men came over from the encampment, and their approach put an end to the struggle. The arrests were then completed, and the remaining partners were marched down to the boats. ”At the time this resistance to the warrant was attempted there were,” our authority informs us, ”about 200 Canadians, _i. e._, French, in the employment of the Company, in and about the Fort, together with 60 or 70 Iroquois Indians, also in the Company's service.”
The Earl of Selkirk was plainly a man not to be trifled with; a chief who, in the olden time, would have been equal to the roughest emergency.
The prisoners brought down from Fort William, and after the lapse of nearly two years placed at the Bar in the Old Court House of York, were arraigned as follows: ”Paul Brown and F. F. Boucher, for the murder of Robert Semple, Esq., on the 18th of June, 1816; John Siveright, Alexander McKenzie, Hugh McGillis, John McDonald, John McLaughlin and Simon Fraser, as accessories to the same crime; Cooper and Bennerman, for taking, on the third of April, 1815, with force and arms, eight pieces of cannon and one howitzer, the property of the Right Hon.
Thomas, Earl of Selkirk, from his dwelling house, and putting in bodily fear of their lives certain persons found therein.” The cannons were further described as being two of them bra.s.s field-pieces, two of them bra.s.s swivels, four of them iron swivels.--In each case the verdict was ”not guilty.”
The Judges were Chief Justice Powell, Mr. Justice Campbell, Mr. Justice Boulton, and a.s.sociate Justice W. Allan, Esq. The counsel for the Crown were Mr. Attorney-General Robinson and Mr. Solicitor-General Boulton.
The counsel for the prisoners were Samuel Sherwood, Livius P. Sherwood, and W. W. Baldwin, Esq.