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THE TRIAL OF DANIEL DISNEY, Esq Captain of a Company in His Majesty's 44th Regiment of Foot, and Town-Major of the Garrison of Montreal, at the Session of the Supreme-Court of Judicature, holden at Mon­treal, on Saturday the 28th Day of February, and thence continued by Adjournments to Wednesday the 11th Day of March, 1767, before the Honourable WILLIAM HEY, Esq Chief-Justice of the Province of Quebec, upon an Indictment containing two Charges, the one for a Burglary and Felony, in breaking and entering Mr. Thomas Walker's House, at Montreal, on the Night of the 6th Day of December, in the Year 1764, with an Intention to murder the said Thomas Walker; the other for feloniously and of Malice aforethought, cutting of the Right Ear of the said Thomas Walker, with Intention thereby to disfigure him, against the Form of the Statute of 22 and 23 Car. II. Cap. i. in that Case made and provided.

Supposed to be written by FRANCIS MASERES, Esq Attorney General of QUEBEC.

Qubec, Printed: New-York, re-printed, and Sold by JOHN HOLT; at the EXCHANGE. M,DCC,LXVIII.

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INTRODUCTION.

CAPTAIN DISNEY, with five other Gentlemen, residing in the District of Montreal, had been taken up in the Month of November, 1766, for the cruel Assault com­mitted about two Years ago, upon Mr. Thomas Walker. They were apprehended by Virtue of Warrants of the Honourable WILLIAM HEY, Esq his Majesty's Chief-Justice of the Pro­vince of Quebec, which are sounded upon a long, minute, and positive Information given against them, upon Oath, before the said Chief Justice, by George M'Govock, a Soldier of the 28th Regiment of Foot, who declared himself to have been an Accomplice with them in that Affair, and to have been an Eye-witness of all the proceedings in it. The Persons so apprehended immediately came to Quebec, and applied to the Chief-Justice to be bailed; and many of the principal Persons in the Province offered to become bound for their Appearance, at the ensuing Session of the Supreme Court, at Montreal, in order to take their Trials. But, by reason of the Magnitude of the Crime, (it being a Capital Offence, of a very odious Nature) and the Positiveness of the Charge against them, the Chief-Justice thought he was not at Liberty, consistently with the Rules of Law, to admit them to Bail; grounding his Opinion herein, both on the general Principles of the Law relating to Bail in criminal Cases, and on some very strong modern Authorities on this Sub­ject, and particularly the two Cases of Acton and Greenwood, reported in Sir John Strange's Reports, Page 851 and 1138, which seem to be decisive in the Point. They were therefore committed to Custody, but confined in the easiest and most in­dulgent Manner possible in Mr. William Grant's House, at Montreal, which is said to be the best House in the Province; it having been suggested, as a Ground for this Indulgence, that the King's Prison at Montreal was in bad Repair, and not in a fit Condition to receive them. On the 28th Day of the February following, in the Year 1767, the Chief-Justice held a Session of the Supreme-Court of Judicature at Montreal, both for criminal and civil Matters, which was continued by several Adjournments to the Middle of March. And about the 8th or 9th Day of March, a Bill of Indictment, that had been presented to the Grand Jury against Captain Disney, by the Attorney-General was returned by them a true Bill; and on the 11th Day of the same Month, Captain Disney was tried upon this Indictment, and acquitted.

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The whole Record of this Proceeding from the Bill of Indictment to the Acquittal and Discharge of the Prisoner, inclusively, is as follows:

PROVINCE of QUEBEC ss. BE IT REMEMBERED, That at the Session of the Supreme-Court of Judica­ture of the said Province of Quebec, holden at Montreal, in the Province aforesaid, on the Twenty-eighth Day of February, in the Seventh Year of the Reign of our Sovereign Lord GEORGE the Third, of Great-Britain, and the Territories thereunto belonging, KING, Defender of the Faith, and so forth, before the Honourable WILLIAM HEY, Esquire, Chief-Justice of the said Pro­vince, assigned by Letters Patent of our said Sovereign Lord the King, under the Publick Seal of the said Province, to inquire by the Oaths of honest and lawful Men of the said Province, and by other lawful Ways, of all Treasons, Misprisions of Treason, Murders, Felonies, Burglaries, Trespasses, and other Misdemeanours whatsoever committed within the said Province, and the said Treasons, Felonies, Burglaries, and other the Premisses, to hear and determine according to the Laws and Customs of that Part of of the Kingdom of Great Britain called England, and the Ordinances of the said Province, and to deliver the Goals of the said Province, of the Prisoners therein being, and to inquire by the Oaths of honest and lawful Men of the Province aforesaid, and by other lawful Ways, of all Civil Pleas, Actions, and Suits, as well real and personal as mixed, between our said Sovereign Lord the King and any of his Subjects, or between Party and Party and the said Pleas, Actions, and Suits, to hear and determine, according to the Laws and Customs of that Part of the King­dom of Great-Britain called England, and the Ordinances of the Pro­vince aforesaid, by the Oath of Samuel M'Kay, Esquire, Monsr. De St. Ours, Isaac Todd, Esquire, Monsr. Francis de Bellestre, Lewis Matterel, Esquire, Monsr. De Contrecoeur, Monsr. De Neverville, Thomas Lynch, Esquire, Monsr. De la Bruiere, John Livingston, Esquire, Mr. Jacob Jordan, Monsr. De Neverville, Monsr. De Nor­manville, Moses Hazen, Esquire, Monsr. Dailbout de Cuisy, Mr. James Porteous, John Dumas, Esquire, William Grant, Esquire, Samuel Mather, Esquire, Monsr. Augustin Baillè, and Mr. John Jennison, honest and lawful Men of the said District of Montreal, in the Province aforesaid, being then and there sworn and charged to inquire for our said Sovereign Lord the King, touching and concerning all Treasons, Misprisions of Treasons, Murders, Felonies, Burglaries, Trespasses, and other Misdemeanours, committed within the said District of Montreal, It is presented, in Manner and Form following, that is to say, Province of Quebec, District of Montreal, ss. The Jurors, for our Sovereign Lord the King, upon their Oath, present, That Daniel Disney, of the Town of Montreal, in the District of Montreal, in the Province of Quebec, Esquire, Captain in the Forty-fourth Regiment of Foot, on the sixth Day of December, in the fifth Year of the Reign of our Sovereign Lord [Page 5] GEORGE the Third, by the Grace of God, of Great-Britain, and the Territories thereunto belonging, KING, Defender of the Faith, and so forth, Between the Hours of Eight and Nine of the Night of the same Day, with Force and Arms, at the Town of Montreal, in the District of Montreal, in the Province aforesaid, the Dwelling-house of Thomas Walker, Esquire, there situate, with divers other evil minded Persons, did, feloniously and burglariously, break and enter, with an Intent feloni­ously and of Malice a-fore-thought, him the said Thomas Walker, then and there being, to kill and murder against the Peace of our said Lord the King, his Crown and Dignity: And the Jurors aforesaid, Do further pre­sent, that the said Daniel Disney, on the said sixth Day of December, in the Year aforesaid, at the Town of Montreal aforesaid, in the District aforesaid, did, with divers others evil minded Persons, with Force and Arms, feloniously and of Malice a-fore-thought, and by lying in Wait, make an Assault upon the said Thomas Walker, in the Peace of God, and our said Lord the King, then and there being, and did then and there feloniously, and of Malice a-fore-thought, and by lying in Wait, cut off the Right Ear of the said Thomas Walker, with Intention thereby to disfigure the said Thomas Walker, against the Peace of our said Lord the King, his Crown and Dignity, and against the Form of the Statute in that Case made and provided: Whereupon the Pravost Marshal, of the Province aforesaid, was commanded that he have the Body of the said Daniel Disney, then being in the Custody of the said Provost-Marshal, for the Offence aforesaid, by Virtue of a certain Warrant to the said Provost-Marshal directed in that Behalf, by the aforesaid Chief-Justice of the said Province, before him the said Chief-Justice of the Province, on Wednesday the eleventh Day of March, at the said Court of Oyer and Termi­ner and General-gaol delivery, held by him the said Chief-Justice, at the Court-house at Montreal aforesaid, in the District of Mon­treal, aforesaid, in the Province aforesaid, on the Twenty-eighth Day of February, aforesaid, and continued by Adjournment until the said eleventh Day of March next after following, to answer concerning the Premisses: And on the said eleventh Day of March, the said Daniel Disney was brought to the Bar in his own proper Person by the Provost-Marshal aforesaid, and being then and there arraigned of the Premisses above charged upon him in the Indict­ment aforesaid, and demanded whether or no he were guilty of the same, and how he would acquit himself thereof, he saith that he is not guilty of the same and that he thereof puts himself upon his Country for Good or Evil: And FRANCES MASERES, Esquire, who prosecuteth for our said Lord the King in this Behalf doth the [Page 6] like: Whereupon the Provost-Marshal aforesaid is commanded to cause to come forthwith before the Chief-Justice aforesaid, twelve good and lawful Men of the Neighbourhood of the Town of Mont­real aforesaid, in the District of Montreal aforesaid, in the Province aforesaid, and who neither, &c. to recognize &c. And thereupon Tho­mas Cox, Randle Meredith, Alexander Patterson, Forest Oakes, Jacob Vanderheyden, John Dumoulin, Jonas Desaols, William Wier, Samuel Holmes, James Morrison, John Neagles, and George Young, were by the said Provost Marshal impannelled for this Pur­pose, and being demanded, come, and being chosen, tried, and sworn, to say the Truth concerning the Premisses, say upon their Oath, That the said Daniel Disney is not guilty of the Premisses in the Indictment aforesaid charged upon him in Manner and Form, as the said Daniel Disney, for himself above by his Plea hath alledged, and that he did not withdraw himself for the same: And thereupon it is considered by the Court here that the said Daniel Disney, be acquitted of the said Indictment, and go hence without Day.

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After the Prisoner had pleaded not guilty to the Indictment, and the Jury were duly sworn and charged to try the Issue, the Case was opened to the Court and Jury by FRANCIS MASERES, Esq his Majesty's Attorney-General for the Province of Quebec, (who was the only Person of Counsel for the Crown on this Occasion) in some such Manner as hereafter followeth:

May it please your Honour, and you, Gentlemen of the Jury,

IT is my Duty, as Prosecutor for the Crown, on the present Oc­casion, to lay open to you the Circumstances of the Crime with which the Prisoner at the Bar stands charged; which I am persuaded you will look upon as one of the most outrageous Violations of the of the public Peace and Order that ever was brought before a Court of Justice; Nothing less than assaulting a Magistrate of unblemished Character in his own House, in the Night-time, with an Intention to murder him;—and this in Revenge for an Act done by him as a Magistrate, in Conjunction with three other Magistrates of the Province, in Support, as he thought, at least, of the Laws and Liberties of his Country.—If this is an Action that ought not to be the Subject of a Prosecution, surely nothing can deserve to be so: And if those who are charged with being guilty of it are just Objects of the Compassion of the Public, I know not what Offenders can excite their Indignation. It approaches in a great Degree to the most dangerous of all civil Crimes, High Treason itself, as it has an immediate Tendency to over awe, to check, and even entirely to stop the Proceedings of the Magistrates of the Pro­vince in the Administration of Public Justice; without which our excellent Laws are but a dead Letter, and our boasted Liberties and Properties an empty Sound: And it was attended with Circumstan­ces of deliberate Malice, Revenge, and Cruelty, that, in the Opini­on of all Persons not destitute of the Feelings of Humanity, must make it completely odious: To which may be added the less impor­tant Circumstance of the cowardly Manner of its Execution, if the employing ten or twelve armed Men to surprise and attack one poor, unsuspecting, unarmed Man, sitting peaceably at Home in the Com­pany of his Wife and Family, can entitle it to that Appellation.

Gentlemen, I am sorry to observe further, that the Persons who committed this Outrage were Military Men: For surely this is an Aggravation of the Offence. It is in them an Act of Treachery: It is betraying the high and honourable Trust reposed in them by their King and Country, by employing to the Purposes of Revenge and Malice those Arms which had been put into their Hands for the Protection of their Fellow-Subjects, and the Maintenance of the Public Tranquility.

Gentlemen, I will now lay before you, in the first Place, the Oc­casion that gave rise to the Crime with which the Prisoner at the [Page 8] Bar stands charged, and afterwards the Manner and Circumstances of its Execution and the Share the Prisoner at the Bar took in it.

When the Civil Government was established in this Province, in the Year 1764, a Number of Persons, in the District of Montreal, were commissioned by Governor MURRAY, to act as Justices of the Peace for that District, and new and great Powers of determining. Matters of Civil Property, not belonging to those Magistrates in England, were given them by the great Ordinance of September 17th, of that Year, by which the Courts of Judicature were erected. Among the Persons so commissioned were Mr. Thomas Walker, Mr. Dumas St. Martin, Mr. Livingston, Mr. Knipe, and Mr. Lambe: These Gentle­men, as I am informed, all of them acted in their new Office with Honour and Integrity, and gave general Satisfaction to the People by their diligent Endeavours to promote their Welfare. There was one Abuse in particular which they earnestly laboured to reform, as it was then very generally and very severely felt by the Inhabitants of Montreal, and the Subject of frequent Complaints. This was the Oppression exercised by some Officers of the Army, under the Co­lour and Pretence of their Right of billetting Soldiers. The Power of appointing Billets was often employed by them to serve the Pur­poses of gratifying their private Disgusts, and of extorting Money from the People. Three or four of the most drunken and riotous of the Soldiers would be sent to take up their Quarters at the House of a substantial Citizen, that was thought able to pay a good Price for an Exemption. This would alarm him, and oblige him to make the humblest and most earnest Intreaties to be excused from receiv­ing them; upon which an Intimation would be given him, that, if he would consent to pay Six or Eight Dollars a Month in Lieu of it, he might be excused, and the Soldiers with that Money would pro­vide themselves other Quarters. This the poor Man would readily submit to (if he could by any Means raise the Money) rather than see his House taken up, his Furniture broken and spoil'd, his Provi­sions wasted, and sometimes his Wife and Daughters insulted by such boisterous and profligate Inmates: And thus by paying the Tax required he would obtain his Exemption. They would then go to another Citizen of two, and by the like Menaces extort from them the like Contributions. Those were the Oppressions which Mr. Walker and his Fellow-Magistrates endeavoured to remove. Mr. Walker, in particular, drew out a Scheme for billeting the Soldiers, by which he made it appear, that there was no Necessity that more than two Soldiers should ever be quartered in one House, whereas there were several Houses at that Time that were burthened with five or six: So that the Hardships the People laboured under in this Respect were by no Means Evils of Necessity (in which Case they ought patiently to have been submitted to) but were mere Abuses of Power, to answer these sinister Purposes.

[Page 9]Gentlemen, in the Beginning of the Month of November, 1764. Complaint, that took its Rise from this Power of billeting, was brought before Mr. Walker, Mr. Livingston, Mr. Dumas, and Mr. Lambe, the Justices of the Peace before mentioned, against Captain Benjamin Charnock Payne, of the 28th Regiment, which proved the immediate. Occasion of Mr. Walker's Sufferings. Captain John Fraser, Pay-Master-General of the Troops in the District of Mon­treal, and one of the Prisoners now in Custody on Account of this Affair, had been billeted by Lieutenant Colonel Christie, the Quar­ter-Master-General, on the House of one Mr. Reamue, a French Gentleman in Montreal, where he accordingly resided till the latter End of October, or Beginning of November, 1764, at which Time he was appointed to an Office by which he became entitled to, or at least possessed of, a House at the Public Expence; upon which he left his Quarters at Mr. Reaume's House, and went to live in the House, so assigned him. Mr. Reaume, imagining his Billet was at an End, immediately invited Mr. Knipe, an English Gentleman, who was at that Time in the Commission of the Peace, and who occupied the Rooms underneath those possessed by Captain Fraser and had hired those likewise of Mr. Reaume, at the Time that Cap­tain Fraser was about to leave them, but had not yet taken possession of them, to come and take Possession of them according to his Agreement. But he was prevented from doing so by Captain Payne, who took, Possession of them in the Name and Right of Cap­tain Fraser, who insisted that he still retained a Right to these Quar­ters, and might either occupy them himself, if he so thought fit, or permit any other Person to occupy them in his Name. Mr. Reaume desired Captain Payne to resign them to Mr. Knipe, to whom he had let them; but Captain Payne refused to quit them, and insisted upon his Right to continue in them by Virtue of Captain Fraser's Billet. Mr. Knipe thought these Pretensions of Captain Fraser, to occupy these Quarters thus by Deputy, to be both hard and illegal, and wrote two or three Letters to him to complain of them: But, instead of receiving any kind of Satisfaction, he was answered in a Style of in­credible and unsufferable Insolence. Upon this he applied to the other Justices for Redress; and Mr. Livingston, Mr. Dumas, and Mr. Walker, held a Court in Mr. Reaume's House, to inquire into the Affair; and being satisfied by the Depositions of Mr. Knipe and Mr. Reaume, that Mr. Knipe had, by a fair Agreement, hired the Apartments in in Question of Mr. Reaume, long before Captain Payne came into them, and being of Opinion likewise that Captain Fraser's Right to them was at an End the Moment he became possessed at the Public Expence of another Lodging, which he thought a better one, they determined that Mr. Knipe had a legal Right to the Apartments, and that Captain Payne ought to resign them to him. And accord­ingly, [Page 10] in Conjunction with Mr. Lambe, a fourth Justice of the Peace, they signed a Warrant to a Bailiff, to command Captain Payne to quit that Lodging. In what Manner this Command of the Justices was to be enforced, I do not find to be certainly agreed. Those who are disposed to censure this Proceeding of the Justices, say that there was a Clause in the Warrant commanding the Bailiff to carry Captain Payne to Prison, if he refused to quit the Lodging, and should make Resistance; others inform me otherwise: This however seems to be certain, that it was never their Intention that Captain Payne, should be imprisoned. This will appear by the sub­sequent Part of their Conduct.

Gentlemen, I will now minutely inquire how far these Proceed­ings of the Justices were legal, that is, how far they had Right to inquire into and determine this Contest between Mr. Knipe and Cap­tain Payne, and to enforce their Decision of it (if they did so en­force it) by the Penalty of Imprisonment. But I will only observe that there seems to be a very reasonable Ground for supposing that all these Things were within their Jurisdiction by Virtue of the Powers before mentioned, given by the great Ordinance of Septem­ber 17, 1764, to any two Justices of the Peace to hear and deter­mine any Disputes concerning Matters of Civil Property, not ex­ceeding the Value of ten Pounds, which probably might take in the present Contest. Nor need we inquire whether or no the Decision they thought proper to make, that Captain Payne had no Right to these Apartments, was good in Point of Law: Though here, as well as before, I should incline to think that the Law was with them: For, if we consider that the being free from the Necessity of quar­tering Soldiers is one of the greatest and most valued Privileges of an English Subject—that it is one of the great Points of Liberty ascertained and confirmed for ever by that best of Laws in the Statute-Book, the Petition of Right in the third Year of Charles the First—That all the Laws of England had been introduced into this Province by the great Ordinance of the 17th of September, 1764, and that these favourite and beneficial ones were promised by the King's Proclamation, in 1763—and that in England itself the Troops are only quartered hi Public-Houses, but never in pri­vate ones; and that only by Virtue of a particular Act of Parlia­ment, annually passed for that purpose; we shall nor wonder at the unwillingness shewn by these worthy Magistrates to allow of the Le­gality of billeting Soldiers upon private Houses upon any other Ground but that of mere Necessity; or for any longer Time than such Necessity continued; of which, in the Case then before them, there could be no Pretence, since the Moment Captain Fraser re­ceived a House from the Government, in consequence of his new Employment, which by going to live in it he acknowledged to be better than his Quarters, it was evidently no longer necessary that [Page 11] those Quarters should belong to him. But whether they were right or wrong in their Opinions upon these Points is not very material. This is certain, that they meant to determine a Matter that they took to be within their Cognizance, and that they meant to deter­mine it according to Law, and to do Justice to the Person they thought to be aggrieved. They therefore ought rather to have re­ceived the Thanks of their Fellow-Subjects for their faithful and spirited Discharge of their Duty, than to have become the Objects of so deep and deadly a Revenge.

This Warrant of the Justices of the Peace was served upon Cap- Payne the next Day, or rather, if it be true that there was a Clause of Imprisonment in it, but half served by one of the Bailiffs of of the District. For the Bailiff shewed it him, and required him to give up the Apartments to Mr. Knipe; but did not, upon the Cap­tain's refusing to do so, offer to make him a Prisoner, or convey him to the Gaol. He neither laid hold on him, as is usual in Arrests, nor said to him, You are to my Prisoner, nor told him that he had Or­ders to carry him to Prison. But Captain Payne, as if anxiously desirous of suffering an Indignity that might serve to irritate the Soldiers to a high Pitch, and dispose them to some desperate Act of Revenge against Mr. Walker, insisted upon going to Prison, and forced the Bailiff to shew him the Way thither. The Bailiff com­plied, and the Captain went to Gaol: And when he got there, the Keeper of the Prison was unwilling to receive him, because he had not a Warrant directed to himself to authorize him to do so. But the Captain insisted upon continuing in the Prison. In the mean Time the Bailiff went and acquainted the Justices with what had happened, who immediately sent him back to the Prison to ac­quaint Captain Payne that he was not a Prisoner in Consequence of their Warrant, that it never was their Intention to commit him to Prison, and that he might go out of the Prison when he pleased: And at the same Time they sent him a Billet to be quartered at Mr. Croston's House, which was the very best Public-House in the whole Town, the Magistrates being unwilling, except where Necessity o­bliged them to it, to give Billets upon private Houses. Captain Payne, however, thought fit to continue in the Prison, notwithstanding these Declarations from the Justices that he was at Liberty to leave it whenever he pleased; and that his Imprisonment might be the more public and make the deeper Impression on the Spirits of the Soldiers, he had Recourse to a more formal Method of obtaining his Discharge from it, by applying to the Chief-Justice of the Province for an Habeas Corpus: And by this Means he was set at Liberty.

When the Circumstances of this Affair came to be public, and it appeared that Captain Payne had been a voluntary Prisoner, and had continued so for several Days, it was by most People made the [Page 12] Subject of Mirth and Laughter. This enraged the Captain to a high Degree, and made him resolve to seek some immediate Revenge against the Justices, and most particularly against Mr. Walker, as having been the most active Man amongst them in all the Com­plaints about the billeting of Soldiers, and, as he imagined, the principal Promoter of the Warrant by which he was ordered to give up his Quarters, and in consequence of which he had committed himself to Prison. Soon after a Resolution was taken to punish Mr. Walker for his Insolence (that was the Language they made use of) by setting a Mark upon him, or by disfiguring him in some signal and disgraceful Manner: And some of the wickedest and most desperate Soldiers of the 28th Regiment, under the Direction of two Sergeants of the same Character, Sergeant Meas and Sergeant Rogers, were employed to put it in Execution.

Gentlemen, we shall produce a Witness that was himself employed in this Business, and was present at the Execution of it, and who is consequently well acquainted with all the Circumstances attending it. His Name is George M'Govock, and he is a Soldier of the 28th Regiment.

He will tell you, amongst other Things, Gentlemen, that on Monday the 3d of December, 1764, that is, three Days before the Perpetration of this Crime, he was desired by Sergeant Meas (who and before that Time acquainted him with the Design and engaged him to be an Actor in it) to go with him to Lieutenant Tottenham's House at Montreal (a Lieutenant and Adjutant of the 28th Regi­ment, who was deeply concerned in this Affair) to meet some Gen­men who were Friends, as the Sergeant told him, to the Design of configuring Mr. Walker, though they were not of the 28th Regi­ment, and to take an Oath of Secrecy never to discover any of them if they should happen to be present at the Execution of it: That he accordingly went with Sergeant Meas to Lieutenant Tot­tenham's; and that when they got there, the Lieutenant himself opened the Door to them, and was accompanied by Captain Daniel Disney, the Prisoner at the Bar, and Lieutenant Simon Evans, of the 28th Regiment: That Lieutenant Tottenham said to him in the Passage, in the Presence of Captain Disney, Lieutenant Evans, and Sergeant Meas, some Words to this purpose, George, this Gentle­man (pointing to Captain Disney) and others that are within, are de­sirous that you would promise that, if any of them should make any Attempt to disfigure Mr. Walker, you will never discover it, and that you would for their further Security, take an Oath to keep it secret: That there upon he consented to take the Oath, and took it immedi­ately, Captain Disney administering it to him on a Book which Lieutenant Tottenham produced, and which the Witness believes to have been a Bible. Lieutenant Evans at the same Time threatened him, that, if ever he discovered it, he should soon be made an End of, [Page 13] wherever he might happen to live, and that he himself would blow his Brains out. Tottenham thereupon said to Evans, that he need not be afraid of his discovering the Matter; for that Sergeant Meas and Sergeant Rogers knew him very well, and could answer for his being faithful.

After this Conversation in the Passage, Sergeant Meas and the Witness M'Govock went into the Parlour with Captain Disney, Lieu­tenant Tottenham and Lieutenant Evans; and there they saw the following Persons, Captain John Campbell, of the 27th Regiment, Captain John Fraser, the Person already spoken of, Lieutenant-Colonel Christie, Deputy-Quarter Master-General; M. St. Luc la Corne, and Mr. Joseph Howard. He staid in this Room about a Quarter of an Hour, during which Time the Resolution taken to disfigure Mr. Walker was the general Subject of the Conversation. They all expressed their Approbation of this Design, and their Hopes that it would succeed. This Witness says that this Conversa­tion was addressed to him or Sergeant Meas, or spoken with an evident Intention that they should hear it; and that Lieutenant Tottenham further explained to him the Design of introducing him and Sergeant Meas into that Company to be that they might know that those Gentlemen who were there assembled were Friends to the Design of disfiguring Mr. Walker, and that therefore they might not be surprised or alarmed if they should see them engaged in the Execution of it, either before, or at the same Time with, and as Assistants to, the Gentlemen of the 28th Regiment.

Sergeant Meas and the Witness then quitted the Parlour, after a Stay of something more than a Quarter of an Hour, and went, by Lieutenant Tottenham's Direction into the Kitchen to drink, and af­terwards returned home about Nine o'Clock.

Gentlemen, What I have here laid before you concerning this Conversation at Lieutenant Tottenham's House, and the Oath of Secrecy administered to this Witness by the Prisoner at the Bar, I have spoken from the Deposition of this Witness, which I have here in my Hand and before my Eyes, with particular Care not to go one Jot beyond the Contents of it.

Gentlemen, I must further inform you, that this Oath of Secrecy had a great Effect upon the Mind of this Witness; a Circumstance that adds considerably to the Credit of his Testimony. When he had made his first Deposition, which made mention only of Persons to whom this Oath of Secrecy did not relate (which Deposition he swore to before Mr. Dumas St. Martin, the Justice of Peace, on the eight Day of last September) he was asked whether that Depo­sition contained all he knew of the Matter; upon which he de­clared that it did not, but said he would not reveal any more, be­cause he could not do it without accusing certain other Persons that were concerned in that Affair, whom he conceived himself to [Page 14] be under an Obligation never to discover, in Consequence of an Oath of Secrecy he had taken for that Purpose. He was afterwards brought before his Honour the present Chief-Justice, to confirm and swear again to this Deposition in the Presence of Mr. Walker and myself. And his Scruple about the Oath of Secrecy being then mentioned as an Objection to his telling the rest of what he knew, he declared that he would be guided by the Opinion and Advice of the Chief-Justice and myself concerning the Obligation of this Oath: And upon our telling him that we thought such an Oath unlawful and void, that it was unlawful to take such an Oath, and still more unlawful to keep it, as it was contrary to a prior and stronger Obligation that every Man is under, for the Sake of the Public Good, to declare the whole of what he knows concerning any public Crimes, when called upon to do so in the Course of a judi­cial Inquiry, he was persuaded to give up his Scruple and declare the rest of what he knew, which makes the Contents of his second Deposition. This Deposition I took down in the Course of a very long Examination in the Presence of his Honour the Chief-Justice and Mr. Walker; and can safely affirm that every Word of it came freely from the Witness without any Suggestions whatsoever from Mr. Walker; whose Conduct with respect to this Witness, so far as I have been able to observe it, has been so very strict and deli­cate, that, instead of bribing him to swear as he should dictate to him, as Mr. Walker's Enemies have given out, to invalidate this Wit­ness's Testimony, he has barely allowed him a necessary Mainte­nance since he has made those Depositions, (not without some Dis­satisfaction and Complaints of the Witness on that Account) and has cautioned him over and over to say nothing but what he was absolutely sure of: And now, since this Witness has been at Mon­treal he has not taken, as I believe, the justifiable Precaution (nor have I, nor any other Person to my Knowledge, taken it for him) of reading over to this Witness either of his Deposi­tions in Order to refresh his Memory against the present Trial. We leave him to relate to you what he can himself recollect of the Circumstances of this cruel Transaction, unassisted either by our Admonitions or his own former Accounts of them. I will not proceed in the Narration of this unhappy Business.

On Tuesday, the 4th of December, the Day after the Meeting above-mentioned at Lieutenant Tottenham's House, a Plot was laid in Sergeant Meas's House in the Presence of this Witness by Sergeant Meas, Sergeant Rogers, John M'Laughlin, James Coleman and Daniel Ashman, Soldiers of the 28th Regiment, to way-lay Mr. Walker that very Might about the Dusk of the Evening upon his Return from his Store-House to his Dwelling-house, which were at the Distance of about a Furlong from each other. The Design was to beat and disfigure him. (The Word constant [Page 15] used in all their Consultations was, To disfigure.) And the Wit­ness saw them go accordingly in the Evening into proper Places for accomplishing their Purpose, armed with Bayonets, and one of them with a Broad Sword. They staid upon the Parade in Hopes of meeting with Mr. Walker, till past Eight o'Clock, and then went Home, concluding that Mr. Walker must have gone Home by some other Way. And this Witness heard some of them that Evening, give this Account of their Disappointment.

On the next Day, the Wednesday, another Design was concerted at Sergeant Meas's House, between the Hours of Ten and Eleven o'Clock in Morning, to way-lay Mr. Walker again that Evening near his own Dwelling-house, in Order to beat and disfigure him. This Witness was present at Sergeant Meas's House at the Time this Design was concerted; and the Persons who concerted it were Ser­geant Rogers, Sergeant Meas, M'Laughlin, Coleman, Ashman, and Philip Castles, another Soldier of the 28th Regiment. And accord­ingly about Eight o'Clock that Evening these Persons did set out from Sergeant Meas's House to different Parts of the Town, in Parties of two Men each. Rogers and Coleman were in one of these Parties, and did meet with Mr. Walker, and were seen and taken Notice, of by him, as he will inform you, as Persons, who, by their Looks and Behaviour, seemed to have some Design of attack­ing him. But they were prevented from doing it by the Ap­pearance of some People that had happened to come out just at that Time and followed Mr. Walker, and who, these Rus­sians apprehended, might interpose in his Defence or raise an Alarm in the Neighbourhood. They therefore returned to Sergeant Meas's House about Nine o'Clock. The Witness M'Govock heard them afterwards give this Account of their Disappointment.

On Thursday, the 6th of December, the Assault was actually com­mitted. And though they had hitherto, according to the Account of George M'Govock, intended only to beat and disfigure Mr. Walker, in such a Manner as to leave a lasting Mark of Disgrace upon him, they now seem to have changed their Purpose to a safer and more complete Revenge, by resolving first to murder him, and then to carry off one of his Ears in Triumph, as the Indians do the Scalp of an Enemy. That this was their Design at the Time of committing this Assault, will appear, not only from the Manner and Violence of the Blows they gave him, some wounding him on the Head with all their Force with Broad Swords, one with a Tomahawk, another with an Iron Bar upon the Loins, with a Design to break his Back but from the Words spoken by them at that Time, such as that the would finish and dispatch him, and their Declarations that they though he had been dead before they left him. Those Words, and the Blows which they accompanied, and most of the Circumstances attending the Assault itself, will be proved to you by the Testimony of Mr. [Page 16] Walker himself, as well as of the other Witness; and the Presence of Captain Disney, the Prisoner at the Bar, on that Occasion, to en­courage and animate the Soldiers who give, the Wounds, will be proved to you by the united Testimony of Mr. and Mrs. Walker.

About a Quarter before Nine o'Clock at Night, as Mr. and Mrs. Walker, were sitting in their Hall at Supper, a sudden Noise was heard at the Door, as of a Number of People striving hastily to get into the House. This Noise was occasioned by their violent Manner of opening the Outer-Door, though shut only upon a Latch. Mrs. Walker upon hearing it immediately cried out Entrez, imagining it was, a Number of Canadians coming to Mr. Walker up­on Business as a Justice of Peace, as he had that whole Day had a great many such Applications: But almost in the same Instant, look­ing towards the Door, and seeing through the Glass of the inner Door a Crowd of black Faces rising one above another, as they stood on the Steps without, she cried out with the utmost Surprise, Good God! What is this! This is Murder; this is the Army come to revenge themselves. Mrs. Walker saw them first; because she sat with her Face to the Door. Mr. Walker sat at the other End of the Table, with his Back to the Door and very near it; I think he can­not have been more than four Feet from it, which is a Circum­stance, Gentlemen, it will be proper you should attend to. While Mrs. Walker was crying out in the Manner I have mentioned, the Russians entered the Room, bursting open the inner Glass-Door and breaking one of the Panes of Glass; and Mrs. Walker clearly distinguished Captain Disney, the Prisoner at the Bar, to be one of them, notwithstanding the Crape he had over his Face, which is but an indifferent Disguise. Mrs. Walker's Exclama­tion made Mr. Walker turn his Head back at the Instant they were entering, which gave him an Opportunity of having one short, but full View of them, and at a very small Distance, before he received a Blow: And it was in this full and near View of them that he clearly distinguished Captain Disney amongst their Number. He also took such Notice of two other Faces among them, that he thinks he should know them again whenever he should see them: But he declares they are not any of the Prisoners now in Custody in this Place, nor any other Persons whose Names he is acquainted with.

Gentlemen, upon the Sight of these Assassins, Mr. Walker start­ed up from his Chair, and in rising received a Wound on the Fore-Part of his Head with a Broad-Sword. This Wound was five In­ches long, and was given with such a Force that one of Mr. Walker's Servants, who was then attending him and saw it given, con­cluded that it must be mortal to him. Mr. Walker however did not sink under it, but recollecting that his Arms were in his Bed-Cham­ber, he endeavoured to make towards it, in Hopes of making [Page 17] some Defence, and for that Purpose rushed into the Parlour which lay between the Hall and the Bed-Chamber. But he received so many Wounds from five or six of the Russians as he passed, that he never could reach the Bed-Chamber, but sunk down, spent with Wounds and the loss of Blood, into an armed Chair that was stand­ing in the further Corner of the Parlour adjoining to the Door of the Bed-Chamber. In this helpless Condition he received several more Wounds and Blows all over his Body, both with Bludgeons and sharp Weapons, and in particular one very dangerous Blow on the Bone of his left Leg with some Iron Weapon, which the Witness M'Govock will inform you was given him by one Clark, who was by Trade a Smith, who carried with him a Piece of Iron fitted to his Hand besides a Bludgeon. He continued in this Situation for a short Time, half a Minute, perhaps, or a Minute, almost deprived of his Senses, but was roused to make one more Attempt to defend him­self by the Terror occasioned by the Threat of instant Death. For he heard a Voice, which seemed to come from the opposite Corner of the Room, pronounce these Words, Damn him, let me come to him, and I'll dispatch the Villain with my Sword. Upon this he looked up, and saw two Persons, whom he conjectured to be Officers, ad­vancing towards him from the opposite Corner of the Room, from which the Voice had seemed to come, one of whom was armed with Pistols, and the other held a Small Sword in his Hand, which he pointed at Mr. Walker's Breast. This latter Person Mr. Walker believed to be the Prisoner at the Bar; but as his Eyes were then full of Blood from the many Wounds he had received, and his Mind in great Confusion, he will not take upon him to swear it was he. But M'Govock the Accomplice, who was present on this Occa­sion, will confirm the Suspicion of Mr. Walker, and inform you that he saw Captain Disney advance in that Manner, with his Sword drawn, towards Mr. Walker, and heard him pronounce those Words. Whoever it was, you will observe, Gentlemen, that it proves be­yond a Doubt that the Intention of the Assassins at this Time was to murder Mr. Walker, and not barely to disfigure him. Mr. Walker resolved, though quite unarmed, to do what he could to defend himself, and accordingly advanced towards these two Persons and attacked them furiously with his Fists, and had the good Fortune to put aside the drawn Sword with his left Hand without receiving a Thrust from it. But he was immediately surrounded by the other Russians. One of these Seized him by the Throat; and Mr. Walker did the same to him, and at the same Time endeavoured to get near the Fire-Place in Order to take up the Shovel or Tongs for want of better Weapons. Upon this another of them took hold of his Right Thigh, and they both together endeavoured to lift him up and lay him on the Fire; the Terror of which cruel Death giving him new Strength and Spirit, he disengaged himself from them both, [Page 18] by suddenly putting his Hands against the Chimney-Piece, and push­ing himself from it with all his Force. But in the Instant of his doing this he received a deep and dangerous Wound from another of the Assassins on the left Side of the Head near the Crown, which felled him to the Ground; and soon after, while he lay helpless on the Floor, he received another most violent Blow on his Loins, which would have broke his Back (as no Doubt it was intended to do) if it had not been for a large Silver Buckle in the Waistband of his Breeches, which received the Blow and somewhat broke the Force of it, which was such that the Buckle was very much bent by it. After this blow on the Back, Mr. Walker continuing to lie helpless and almost motionless on the Floor, with his Face downwards, one of the Villains either knelt or sat upon his right Side, and cut off a Part of his right Ear, and endeavoured at the same Time to cut his Throat: But finding this to be difficult by Reason of the Motions Mr. Walker made to prevent it by squeezing his Head down close to his Shoulders, and putting up his left Hand (the little Finger of which was by this Means cut to the Bone) and being in a Hurry to get away, as the Neighbourhood began now to be alarmed, he made of with the Rest of his Companions without effecting it, and carried off the Ear in Triumph. They thought however that they had left Mr. Walker either dead or in a dying Condition: For Mr. Walker heard one of them say, just before they went off, Damn him, he is dead, and another say, We have done for him. And with good Rea­son indeed they might suppose so, since there are very few Men in the World that could have survived such a Number of Wounds and Blows as he had received, they being no fewer than Three Score, of which Eight were dreadful Wounds from sharp Weapons, and Fifty-two were Confusions.

The Ear was immediately carried to Lieutenant Tottenham, as ap­peared by his own Examination, where he says that two Men in disguise and masked, or with their Faces blacked, came into his House about 9 o'Clock at Night, and throwing down a Piece of Flesh upon the Table, said, There's that Rascal Walker's Ear, and then withdrew without saying a Word more. Mr. Welsh, the Offi­cer of General Burton's Guard, and Mr. Baker, the Surgeon's Mate of the Regiment, were at that Time with Mr. Tottenham. But it does not appear that they made any Attempt to stop the Men who brought them the Ear. As soon as they were gone, Mr. Tot­tenham wrapped the Ear up in a Piece of Paper, and sent Mr. Welsh with it to General Burton, who some Hours after sent it to Mr. Lambe, the Justice of Peace before-mentioned, to be disposed of as he should think proper.

These Particulars of this Assault will all be proved to you by Mr. Walker himself without the Assistance of the Accomplice, whose Evidence however will confirm them and acquaint you with the [Page 19] Names of the principal Persons concerned in the Execution of them. He will tell you that the Blow on the Head that brought Mr. Wal­ker to the Ground and quite subdued him, was given him by Ser­geant Meas with a Tomahawk, and that the Person who gave him the Blow on his Back when he was down was Thomas Donnelly, who afterwards boasted of it in the Hearing of the Witness, and said he thought he had broke his Back; and that Sergeant Rogers was the Man that cut off his Ear and carried it off.

While some of these Russians were employed in attacking Mr. Walker in the Manner that has been related, others of them were employed in assaulting and driving away the rest of the Family. Mrs. Walker and Miss Heard (who is since married to Mr. Wade, who was sitting at Supper with Mr. and Mrs. Walker, and John Lilly, Mr. Walker's Clerk) escaped through the Kitchen into the Yard; where, not being pursued, they remained till the Affair was over. John Lilly was attacked by some of the Russians, who gave him three deep Cuts on the Head with a Broad Sword, one of which knocked him down; but recovering himself pretty soon; he strug­gled with one of the Fellows and pushed him into a Window, and then rushed out at the Street Door through the Midst of a Party of five or six more of the Ruffians that guarded it, in Order to alarm the Neighbours; to prevent which two of their Number pursued him, the rest crying out to them, Damn him; shoot him; don't let him escape. But they did not overtake him. And William Fontaine, Mr. Walker's Servant, who was waiting upon him at Supper at the Time of this Assault, was pursued by one of them with a naked Broad-Sword in his Hand into the Gallery: There he escaped the Fury of his Pursuer by leaping down from the Gallery into the Yard through some of the broken Rails. The Stroke aimed at him by his Pursuer fell upon the Rails of the Gallery, and, as he believed, upon his Coat, as he afterwards found it had been cut.

Such, Gentlemen, were the Circumstances of this tragical Affair. Before I proceed to lay the Proofs of them before you, I will beg leave to mention a few Observations concerning the Nature of the Charges contained in the Indictment.

The first Charge in the Indictment is for a well known and very high Offence at the Common Law, called a Burglary; which con­sists in breaking; and entering; a Man's House in the Night time with an Intent to Commit a Felony. In the present Case it is charged that the Felony intended to be committed was a Murder, of which I be­lieve, when you have heard the Proofs of the Particulars I have opened to you, you will have little Room to doubt. If this Inten­tion in the Russians who assaulted Mr. Walker is proved to your Satisfaction, together with the Presence of the Prisoner at the Bar at this Transaction, you must find him guilty of this first Charge in the Indictment, which will render the Consideration of the second [Page 20] Charge of less Importance. But if it should appear to you that the Prisoner was concerned in this Affair, but that there was no Inten­tion to murder Mr. Walker, (though this is what I cannot well sup­pose) the Prisoner must be acquitted upon the first Charge, and found guilty only upon the Second.

The second Charge is founded upon the famous Act of Parlia­ment for preventing malicious Maiming and Mutilation, passed in the 22d. Year of CHARLES the II. and usually known by the Name of the Coventry-Act, from the brave Sir John Coventry, whose Suf­ferings were the Occasion of making it. Concerning this Act of Par­liament two very strange Opinions have been entertained by some Persons in this Province: The First is, that the Act of Parliament is not in Force in this Province; the Second, that, supposing it to be in Force here, the Injury done to Mr. Walker does not fall within it. I will endeavour to shew the Falshood of both these Opinions.

It has been said in Support of the First of these Opinions, that this Law is not in Force in the other Provinces of North-America, and therefore ought not to be so here. This Conclusion is by no Means just. This Province has nothing to do with the other Pro­vinces of North-America; nor indeed have those other Provinces any Connection with each other. The Laws in each Province are different from those in every other, as the different Acts of their Assemblies (which have exercised a Legislative Authority in them) and the different Dates of their original Settlement by English Plan­ters have contributed to vary them. And the Laws of all the Colo­nies are, from the same Causes, different from the Laws of Great-Britain itself. The common Principle, upon which they all seem to be established, I apprehend to be this; that every Set of English Planters, upon their first occupying and settling a new Colony, have carried with them the Laws of England then in Force at the Time of their leaving it to go to the new Colony: That this is the original System of Laws which they imported into the new Colony; and that this System was increased or varied either by new Acts of the British Parliament passed since the Settlement of the Colony, contain­ing express Words extending to it, or by the Acts of their own As­semblies under the Powers communicated to them by the Royal Charters. Thus the Laws of England in Force in the Reign of JAMES the I will be the Basis of the Laws of a Colony that was first settled in his Reign: And in such a Colony the Coventry-Act, which was made in the Reign of CHARLES II. will not of Necessity be a Part of the Law of the Colony, because that Act does not expressly mention the Colonies: It will therefore be, or not be, a Part of the Laws of such a Colony according as their Governor, Council, and Assembly shall have, or have not, adopted it, sup­posing that those provincial Legislatures have a legal Power to make Laws of that high Importance. And thus it may happen that [Page 21] some of the North-American Colonies this Law may be in Force, and not in others. Whether in Fact it is in Force in any of them, we need not here inquire. With Respect to this Province, it is cer­tain that this excellent Act of Parliament is as much in Force here as Magna Charta, or the Petition of Right, or the Law of HENRY VIII. that takes the Benefit of the Clergy from Wilful murder of Malice aforethought, or any other the most useful or most respected Laws of England: For it is founded on the same Authority with them, namely, the Authority of the great Ordinance of the Legisla­ture of this Country, General MURRAY and his Council, of Sep­tember 17, 1764, by which they introduced into this Province, at one Stroke, the whole System of the Laws of England then in Force, and consequently among the rest this excellent Act of Parliament. That Ordinance institutes the present Court of King's-Bench, or Supreme Court of Judicature, in which we are now assembled, and ordains that the Chief-Justice of the Province, who presides in it, shall hear and determine all criminal and civil Causes agreeable to the Laws of England, which certainly must mean the Laws of England then in Being. And besides, the Chief-Justice's Commis­sion, which you have heard read, runs in the same Style with this Ordinance, and directs him to hear and determine all Matters that come before him agreeably to the Laws of England and the Ordinan­ces of this Province hereafter to be made. Either therefore this great Ordinance (upon which all the Proceedings of the Courts of Judicature in the Province, both civil and criminal, have been founded ever since the passing it) and likewise the Directions con­tained in the King's Commission to the Chief-Justice, are void and of no Authority, and none of the Laws of England are now in Force in this Province, but the French Laws that prevailed here be­fore the Conquest are the only Laws that are really still in Force (as they certainly would have been if this Ordinance had not been made) or it must be allowed that this excellent and beneficial Law, called the Coventry-Act, was introduced here by that Ordinance, to­gether with all the otter Laws of England in Being at the Time of passing it.

The second Opinion, that the Injury done to Mr. Walker does not come within the Coventry-Act, though not so intirely destitute of all Colour of Reason as the former Opinion, will yet, I believe, upon Examination appear to be ill-grounded. The Coventry-Act says, that, whoever shall on purpose, and of Malice-aforethought, cut or disable the Tongue, put out an Eye, slit the Nose, cut off a nose or Lip, or cut off or disable any Limb, or Member, of any Subject, with In­tention in so doing to maim or disfigure him, shall be guilty of Felo­ny without Benefit of Clergy. These are the Words of the Act, in which it is certain the Cutting off an Ear is not mentioned. But Gentlemen, is it not plainly comprehended within the Word Mem­ber? [Page 22] To what Purpose, after enumerating the several Features of the Face, does the Statute add the Words Limb or Member, unless it be to extend its Protection to all the other Organs of the Body by using the most general and comprehensive Words the Language affords. Certainly by the Word Limb we must understand the lar­ger Parts of the human Body that are seperate from the Trunk, namely, the Arms and Legs, and perhaps the Hands and Feet, and by the Word Member the smaller Parts of it, such as the Fin­gers, and particularly the Ears, as being more likely to be the Object of a malicious Intention to disfigure by Reason of the Resemblance of such an Injury to a disgraceful Punishment in some Cases in­flicted by the Law; which is the very Sort of Injury this Statute was intended to prevent.

Gentlemen, this Act of Parliament has always been reckoned a most excellent and salutary Law. It was passed in Opposition to the Court, as a Law of indespensable Importance, in the peaceable Part of the Reign of King CEAELES the II. in Consequence of a base piece of Cruelty committed upon Sir John Coventry, a Member of Parliament at that Time, by assaulting him in St. James's Park, and slitting his Nostrils. This was done, as it is generally supposed, at the Instigation of the Court, and probably of the King himself, in Revenge for some light Expressions thrown out By Sir John Coventry, in a Debate in Parliament, reflecting on the King's known Debauchery. Yet notwithstanding the Provocation given by this personal Reflection on the King, the Parliament thought this barbarous Assault such a flagrant Violation of all the Rules of Justice and Humanity, that they immediately prepared a Bill to ren­der the Perpetrators of it incapable of receiving the King's Pardon, and to make all future Offenders in the like Kind liable to be punished with Death; and to this Bill the King gave the Royal As­sent. And it must be observed, that the Parliament that did this was not a factious ill-disposed Parliament, that took a Pleasure in proposing Things that might be disgustful to the Court; but it was that Parliament which, of all that ever sat in England, was most devoted to the Crown, and disposed to concur in almost every Mo­tion and Proposition that came from it—which had repeatedly supplied that King with large Sums of Money, notwithstanding the continual Waste and Misapplication of them, and which, to gratify the Pride and Revenge of his first Minister, the Earl of Clarendon, and the rest of the vindictive Royalists that had returned from Ex­ile, had passed several penal Laws (which still subsist) to prosecute the Protestant Dissenters, had repealed the excellent Act obtained with so much Difficulty from CHARLES the I. for securing to the Nation a Meeting of Parliament at least once in three Years, and had almost established passive Obedience by a Law. Yet even this compliant Parliament thought this a necessary Law—so necessary [Page 23] as to insist upon the passing it in Opposition to the Wishes of the Court. And ever since that Time it has met with the universal Ap­probation of all the English Nation, and has received so much Countenance from the Judges, and been deemed so highly remedial and beneficial to the Subject, that in the only two Cases that have happened upon it (one of which happened about a Year and a Half ago, and the other was the well known Case of Cook and Woodburn) it has met with a large and liberal Construction. This I am sure of, that neither of those Cases comes so clearly within the Spirit and Meaning of the Coventry-Act as the Case now before you does, which seems indeed to be the very Sort of Outrage that Act was designed to guard against: And it seems likewise to come within the Letter of it by giving the Word Member used in the Statute, that, I will not say, liberal, but natural Interpretation that has been already mentioned. But these Considerations will, as I apprehend, become of little Consequence by the strong Proofs by which, I doubt not, you will be convinced that at the Time of committing the Assault the Ruffians who committing it had an Intention to murder Mr. Walker. I will now, Gentlemen, call the Witnesses for the Crown in Support of this Indictment, without trespassing any longer on your Patience.

WITNESSES for the CROWN.
Thomas Walker Esq

ON the sixth Day of Decem­ber, about Half after Eight or near Nine of the Clock Mrs. Walker looked at her Watch, and in about fifteen Minutes after were called out to Supper; as we were sitting at Supper, I with my Back to the Street Door, heard a Noise at the Latch, like somebody wanting to come in in a Hurry, on which Mrs. Walker being at the Head of the Table, said, entrez; the outward Door was thrown open, and through the inner Glass Door I saw a great Number of People disguised, their Heads ap­peared one above another as they stood on the Steps (such as those in Court, pointing to a Number of People) They were disguised many different Ways, some of them little round Hats, others black Faces, others with Crapes, and one with a Tuck of the Hair over the Cap and turn'd in at Top; they burst the inner Door coming in, and broke the Glass, forcing the Bolts of the Door; I turned my Head round on Mrs. Walker's saying, Good God, what's this, This is Murder! I took so much Notice of two Faces that were black'd that I should know them if I was to see them again; but they were not any of those Gentlemen in [Page 24] Custody; have the Idea of them as of a Face drawn with a Pencil; had a distinct View of them. Many of them surrounded as if they would cut off the Communi­cation of the Parlour. On turn­ing round. I received a Stroke on my Head. At that Time I could not tell whether it was a Broad Sword or Bludgeon. When I had received this Stroke I rose up and passed through them to get into the Parlour, in order to pass through it into my Bed-Room, where my Sword and Pistols were, in order to make some Defence. I then received many Blows (but cannot tell how many) Passing through the Parlour Door, they following me in such a Hurry, burst open the Standing-door (they were Folding-doors) being so many of them. Coming to the further End of the Room, and striving to get into my Bed-Room, two Men stood at the Chamber Door, and fore-closing me, pre­vented my opening it; beat me so much, and with such a Number of Strokes. They closed me round with a Curtain, which I suppose prevented their Dashing my Brains out. Was some Time in the Cor­ner, but how many Blows I re­ceived there, cannot tell. But there was Fifty-two Contusions or Bruises. I was swelled from the Shoulders to the Fingers End, there was not a free Part all over my Body. I received a Wound on my Leg, but don't know when. Whilst in the Corner I had no Remembrance of being off my Feet; but seeing the Marks of my bloody Head against the Wall imagine I had lost my Senses; but remember hearing a Person say, let me come to him, I will dispatch the Villain with my Sword; this was the first Thing I heard; and that roused me, and then was de­termined to sell my Life as dear as possible. Having seen Major Disney, not knowing that I had ever disobliged him, I expected Life, till I heard those Words. Major Disney had a Crape on his Face, and I discovered his Face through the Crape. Believe by the Figure that it was he that made use of those Words, having seen him in the Room before I received so many Blows, but I cannot say positively that I knew his Voice, and do not recollect particularly what Dress he was in. Before I received any Blows, or any Thing in the outward Room, I was ful­ly convinced that was Major Dis­ney. A Person made at me and I parried the Blow with my left Hand and struck at him. At the Instant the Words were pro­nounced two or three People came up to me with Swords levelled, but do not know whether any Body made a Pass at me or not, but upon my taking Courage they retreated back: My Eyes were then full of Blood. They then closed; one collared me; I seized and held him, till another took me by the right Thigh, and strove to lift me and set me on the Fire, I then turned myself round setting my Hands against the Chim­ney (the Marks of my five bloody Fingers are on the Jambs of the Chimney) and tore the Side of my Shoe with the Force, and in turn­ing round I received a Stroke (which the Doctor said was that of a [Page 25] Tomahawk) which fell'd me to the Ground, senseless; how long I laid there cannot tell. The first Remembrance after that Stroke was a severe Blow on my Loins, whether by a Tomahawke or Bludgeon, I do not know, but feel it to this Day in bad weather. After that Blow a Man kneel'd, or sat on my right Side, and I felt as if he was attempting to cut my Throat; I then moved my Head and Shoulders and put any Hand up, thinking it was his Thumb, but found a sharp Instru­ment. And he cut the little Fin­ger of my left Hand to the Bone; and it was a Fortnight before I knew that I had lost my Ear. I thought they had aimed to cut my Throat, and thought (at the Time) they had done it. Af­ter receiving that Wound I heard a Voice from one of those Peo­ple present say, the Villain's dead; another said, damn him, we have done for him. A third Person spoke, but I could not rightly understand what he said, but heard some Words; then having lost my Sens­es can give no further Account; but when I did recollect found my­self in the Arms of William Fon­taine my Servant, and one Mr. Pistolet.

The bloody Clothes, Shirt, and the Ear in Spirits were then brought into Court and exposed.

CROSS EXAMINATION. Council for the Prisoner. Morrison.

Q. Who was at Table? Walker.

A. Mrs. Walker at the Head, Miss Hurd, now Mrs. Wade, and my Clerk.

Q. Did you see Major Disney enter?

A. Yes.

Q. What Part or when did he enter?

A. I don't know exactly.

Q. Did you get up when they entered?

A. Yes.

Q. Did you look at the People in getting up?

A. I had looked before.

Q. Do you know whether Ma­jor Disney struck?

A. I don't know. He knows best.

Q. How came you to know him?

A. By looking at him.

A Crape was then produced, and Mr. Walker put it on his Face.

Q. After you had received the Blow what became of Mrs. Wal­ker?

A. Let them answer.

Q. Why could you not tell what became of them, did you not speak to your Wife, or any other Per­son?

A. No.

Q. Did not your Clerk or any other Person assist you?

A. No.

Q. Did not you think to pro­tect your Wife?

A. No.

Q. Then you was stopped at the Corner by three or more, and they kept you for some Time, you don't know what Time?

A. I don't know.

Q. There was two of the Fi­gures you would know?

A. Yes.

Q. Had you never any Oppor­tunity of seeing them?

A. No, and perhaps may ne­ver see them again here.

Q. Pray did you see Major Dis­ney in that Room, did he offer to strike?

A. No. Unless it was him that advanced with his Sword, On see­ing [Page 26] that I jumped and parried it, my Eyes being at that Time full of Blood.

Q. What were the others doing?

A. They were all striking. The first Thing I recollect were those Words which re-animated me.

Q Cannot you guess how long you was in the Corner?

A. No, I cannot say, I lost my Senses.

Q. But cannot you tell how long you was in the Corner without your Senses; methinks it is ve­ry odd?

A. Had you received the same Number of Blows that I did you would not have been very bright I believe.

Q. You heard the Prisoner say, let me come to him and I will dispatch him?

A. I believe that to be Major Disney, but am not sure.

Q. You said those Words were spoke before the Sword was point­ed?

A. I heard them. It was such a Figure as Major Disney; but my Eyes were full of Blood.

Q. Do you know who spoke those Words?

A. I do not know who spoke those Words, but heard the Voice from that Part of the Room, imagining it to be a Per­son that was directing.

Q. You said it was about three Minutes?

A. I do not ascertain the Time.

Q. Do you remember the Per­son that gave you the Blow on your Loins?

A. I do not.

Q. Did Major Disney give any Blows?

A. There were enough to do that Work besides Major Disney, and fitter for the Purpose.

Q. After the Struggling by the Fire I think you said you heard a Voice say, damn him, we have done for him; do you think that was Major Disney?

A. No.

Q. There was a third Person, what did he say?

A. Do not know. I believe I then lost my Senses.

Q. You recovered next Morn­ing a little, did you recollect any Thing about Major Disney?

A. Yes I recollected Major Dis­ney very well.

Q. Did you mention Major Disney?

A. No I don't recollect I did.

Q. You put the Sword by with your Hand?

A. I parried it.

Q. After you parried the Sword what became of him?

A. I struck at him and he re­treated.

Q. You struck him?

A. Ask him, he knows if I struck him.

Major Disney answered, No Sir you did not.

Major Disney asked.

Q. Did you particularize any Person next Morning?

A. I did not know any other Person.

Q. But whether next Morning did you particularize him or another Person?

A. Yes! I recollected one that looked like Lieutenant Hamilton and a little Man like Lieutenant Graham, but did not mention [...] to any Person but to Mrs. Walker and a Friend.

[Page 27] The Court then put:

Q. If Mr. Walker was acquaint­ed with Major Disney?

A. Yes, he used to visit at my House, and I used to be on Terms of Friendship, was very well ac­quainted with him, particularly on my first Tour to Canada, he being one of Mr. Gage's Family.

COUNCIL.

Q. When you saw Major Dis­ney first it was surprising you could not tell his Dress?

A. I could not.

Q. Had he any Thing at all on his Head, or in what Manner was the Crape fastened?

A. I do not know, but think he had a Hat on.

The Council for the Crown then thought proper to call some Evi­dences, to prove that the Fact was really committed, fearing the Length of Time might have era­dicated so base an Action out of the Minds of the Public, as they rather seemed to stifle and make it appear as an unpopular Prosecu­tion, &c. &c. &c.

Mr. Boone, Evidence for the Crown.

Having been at Major Walbrun's, a Tavern on the Parade, I met a Parcel of Men running, amongst which was a Musician, I asked him what was the Matter, the Mu­sician answered, Mr. Walker was murthered: I then went to Mr. Walbrun's▪ and told it, and then went to Mr. Walker's, with other Company. I thought his Wounds very bad: I did not think him likely to live; saw his Wound on the Ear and Cheek very bad, and thought that the Wind Pipe was really cut. The Doctor thought it was dangerous. Being asked on what Account? Answered, He did not know, but the Doctor thought it dangerous, and the one on the Crown of the Head he thought was most dangerous.

Q. With What Instrument do you think the Wound was done?

A. I thought it must have been with a Broad Sword.

Q. Did you think they were all done with a Broad Sword?

A. They were to the best of my Knowledge.

Q. What length did you think?

A. Some appeared to be about three Inches and an Half, one very deep.

Q. Did you meet any People in the Street running away disguised?

A. Coming out of Walbrun's, I saw some People running very fast; but did not see whether they were disguised. They were run­ning from Mr. Walker's towards the Parade.

Q. Do you know any Thing further of that business?

A. No.

Q. Did you ever hear any Per­son, or Major Disney, confess any Thing previous to that Affair?

A. No.

CROSS EXAMINATION.

Q You went in with some other Gentlemen and saw him sitting in a Chair: do you recollect what Day, Year, &c.

A. I recollect the Year, not the Day.

Q. What Year?

A. About two Years ago.

Q. What Time of the Night?

A. About Nine of the Clock.

Major Disney then asked him, if he had ever heard him speak in [Page 28] Mr. Walker's Favour or against him?

A. No, never.

Monsr. Pistolet for the Crown.

Q. Did you see Mr. Walker the Night he was atacked, and what Hour?

A. Between Eight and Nine O'Clock I heard a great Noise. Mr. Walker's Servant, after climbing over the Wall, knocked at our Back-Door, the Kitchen.

Q. What did you do?

A. My Father opened the Door for the Servant, and was much surprised at his crying Mr. Walker was assassinated; on which I and my Father went to Mr. Walker's House to see what was the Mat­ter; but my Father did not enter Mr. Walker's House, but I entered with the Servant, and found Mr. Walker stretched on the Floor.

Q. Had Mr. Walker his Senses when you entered?

A. He had not Time to answer. I heard some Cries in the Street, and feared that some of them were in or about the House, and finding myself alone, took a Reso­lution to go out of the House.

Q. Did you meet any of the Ruffians coming out of the House.

A. No.

Q. None that was disguised?

A. No.

Q. Did you find the House emp­ty, only Mr. Walker's Family?

A. I only saw Mr. Walker. Mrs. Walker was out in some of the back Houses, as I heard some Cries.

Q. Who told you that the As­sassins were about the House?

A. I was in the House and heard it said in the Street.

Q. What did they say?

A. They thought that some of the Persons might still be hid in some Part of the House

Q. When you left the House did you return a second Time?

A. I would have entered, but Mr. Lamb at the Door hindered the People going in.

Q. What did you observe in that little Time when you saw Mr. Walker?

A. Nothing.

Q. Was there a great Quantity of Blood?

A. I saw Mr. Walker almost co­vered with Blood.

CROSS EXAMINATION.

Q. Your Father's House join [...] Mr. Walker's?

A. Only a Wall.

Q. Did you come into the House with Mr. Walker's Servant▪

A. Found him lying on the Floor weltering in his Blood▪ came back a second Time but was prevented.

Q. Do you know what Day, Month and Year?

A. The sixth Day of Decem­ber, 1764.

Q. Was there any Body with Mr. Walker in the Room when you entered?

A. No.

Q. Did you see Mr. Boone?

A. Yes, the second Time I think I saw Mr. Boone with Mr. Lamb.

Q. What Hour of the Night do you think it was when you en­tered the first Time in the House?

A. About Nine o'Clock; but I do not remember particularly.

Q. Do you think it was half after Nine that Time?

A. About that Time.

Monsr. St. Anges, for the Crown.

Q. Did you see any Person com­ing [Page 29] out from Mr. Walker's about the Time he was assassinated?

A. No. I saw Soldiers going from one End of the Street to the other.

Q. Were they diguised?

A. No, not in the Day, but in the Night. They had flapt Hats.

Q. Were they disguised in any other Manner?

A. They had long Blanket Coats.

Q. Did those Hats seem intend­ed to cover their Faces?

A. Yes.

Q. At what Time of the Night did they pass?

A. About Seven and Eight for two or three Days.

Q. Whether on the sixth Day of December did you see any Per­sons going to or coming from Mr. Walker's?

A. Yes, about seven o'Clock.

Q. Did you see any Person a­bout the Time the Affair happen­ed?

A. No.

Q. Did you hear any Person speak about Mr. Walker that Even­ing?

A. No.

CROSS EXAMINATION.

Q. At seven o'Clock in the Evening have you seen any Peo­ple with Crapes on their Faces?

A. Yes. I saw them after their coming out from Mr. Walker's.

Discharged.

William M'Carty, for the Crown.

Q. On the sixth Day of De­cember, 1764, did you see, before the Assault on Mr. Walker, any Persons armed or disguised?

A. About half after eight of the Clock that Evening [...] saw six People turn round [...] Howard's Corner going to [...] Mr. Walker's.

Q. How were they dressed?

A. In Blanket Coats and Bon­nets, or Handkerchiefs tied round their Heads. The first was a very tall Man, and had a Broad-Sword in his Hand that glistened; this was about half after eight o'Clock.

Q. Did you hear them say any thing?

A. I heard them talk, but could not hear any thing. They march­ed two and two, and were about six or eight in Number.

CROSS EXAMINATION.

Q. Did they go towards Mr. Walker's?

A. Yes.

Q. Did you see any of their Faces black'd?

A. No. I saw their Backs.

Q. You say it was on the sixth of December. Pray what Kind of Weather was it at that Time? Was it not the usual Weather for that Time of the Year? Were they dressed in any other Manner than the Time of the Year re­quired?

A. I took them to be Panies, it was light Moon-light Nights.

Mrs. Martha Walker, for the Crown.

Q. What did you observe?

A. I observed first the Rattling at the Door; heard a Number of Foot-steps, and supposing it to be People, coming on Affairs of Jus­tice, I cried out, Entrez, and seeing a Number of People one above another on the Steps with­out, cried, Good God, what's this? They rushed in all together, and I cried out, this is Murther! And the first Person I could see to know was Major Disney, and a­nother, that seemed to enter first, I took for Lieutenant Hamilton, [Page 30] as he had been at the House before about a little Business

Q. Did you see Major Disney?

A. Yes, I saw him one of the Hindmost, with red Breeches and Waistcoat, a Canadian Gown, and a Crape over his Face.

Q. You say that Major Disney had a Crape over his Face?

A. It was close to his Face, and I discovered the Features of his Face.

Q. He was one of the Hind most; did you see him do any Thing?

A. No. Knowing Major Disney by Sight, and seeing the others dressed in red Breeches, and know­ing another Person or two, I thought they were the Army coming to revenge themselves. Then Miss Hurd took hold of my Arm and dragged me out through the Kitchen, &c.

CROSS EXAMINATIONS.

Q. What time of the Night was it?

A. About half an Hour before that Affair, one Mr. M'Lean, an intimate Friend of Captain Fra­ser's, came in without having any Business, at least as appeared to me, and not having any particu­lar Intimacy at the House, it seem­ed something remarkable, He told a Story of some Person toward or below Quebec, having been very ill used and abused, by a Parcel of Canadians, his Cariole taken away, &c. which surprised me much, as the Canadians were generally a ve­ry quiet People. After he had finished his Story he went out and the Servant came and told us Sup­per was ready, and I looked at my Watch, and it was not the u­sual Hour: I told Mr, Walker he had better sup in the Parlour, be­ing the Room we were then in, he not being well, and I would keep him Company; however we went out to Supper, and he was eating a Bit of Toast when he received the Blows: It was then about three quarters after eight o'Clock.

Q. Can you recollect what Number?

A. Cannot recollect the exact Number.

Q. Did you see Major Disney the first?

A. No! Lieutenant Hamilton; but as he has never been accused by others I might be mistaken.

Q. How long did you remem­ber remaining in the Yard?

A. About three Minutes; but cannot remember positively.

Q. What Situation was Mr. Walker in?

A. He was in a terrible Situa­tion: I embraced him, and he seemed to know me.

Q. About what Time did you come in?

A. About three Minutes. I sent a Servant to see what Situa­tion Mr. Walker was in; being im­patient met him; he cried, Oh! my Master is all in Blood.

Q. Can you recollect any Per­son that was in the Room.

A. No, not particularly.

Q. Can you ascertain the Time from the first Entrance of the People to the Time you came in­to the Parlour to Mr. Walker?

A. No: It might be three or four Minutes.

Q. Could it be more?

A. [...] know; it seemed very [...] me.

[Page 31] Q. You observed the Waistcoat and Breeches, did you observe the Manner the Crape was tied round his Face

A. No.

Q. Had he a Hat on?

A. I do not know.

Q. Had he any Thing in his Hand?

A. He had a drawn Sword.

Q. You are sure it was drawn?

A. Yes, it glittered.

John Lilly, for the Crown.

Q. Was you present at Mr. Walker's Table when the Assault was made?

A. Yes.

Q. What did you observe then, or how many Men?

A. Five or six.

Q. Did you know any of them by Resemblance?

A No, I can't say that I could.

Q. Did you hear them say any thing?

A. No.

Q. Did you see any of them strike Mr. Walker?

A Yes.

Q. With what?

A A Broad Sword.

Q. How many Blows?

A. One. When I saw Mr. Walker struck I went to help him, then being attacked myself by a Man I drove him on a Trunk, and thinking Murther intended run out. The first Blow was given with a Broad-Sword.

Q. What became of you after you pushed the Man on the Trunk?

A. After that I received two Blows on my Head.

Q. What became of you after­wards?

A. I got out at the Street Door?

Q. What did you see at the Street Door?

A. Five or six Persons standing at the Door, and five or six in the House.

Q. Their Dress?

A. Blanket Coats, cropt Hair and black Faces, their Hats dis­figured, that is, those in the House. As soon as I got out I cried Murther, and one of them cried, fire at him, don't let him escape, and two of them pursued me, and I said nothing, but run on, and went to the Foot of the Lane; they immediately returned again, and so did I, and went to one Mr. Prevost, a Cooper, al­most opposite Mr. Walker's House, and desired they would come, and said I believed that Mr. Walker's Family were all murthered: There was Monsr. Prevost, ano-Person, and a Soldier of the 28th Regiment; they would not go, but took me by the Arm and pul­led me into the House; they would hardly let me go out again; but I got out, and then saw People com­ing out from Mr. Walker's, and took them to be the People that committed the Affair, and ob­served them going towards Mr. Murray's: I followed them and went into Mr. Murray's.

Q. When did you go back to Mr. Walker's?

A. I was pushed out of Mur­ray's House by one M'Killip, who told me to go away as I kept bad Company; then Murray spoke to me, and I returned in about ten Minutes to Mr. Walker's, and found him lying on the Floor, a­bout a Foot and Half from the Fire, speechless.

Q. They exhorted each other to shoot you: Could you guess at any of them by Size or Shape?

A. I was all over Blood.

[Page 32] Q. Did you observe what kind of Dress?

A. Some Blanket-coats, others Coats, white Sleeves, Faces blackt and Cropt Hats. No Body spoke within the House except Mr. Wal­ker, crying Murder.

Q. How long was it from the Time of the Beginning of the Ac­tion to the Time you went to Mr. Feltz's? (A French Surgeon.)

A. About a Quarter of an Hour.

Q. In what Time after did Mr. Feltz arrive at the House?

A. It was upwards of twenty Minutes before he arrived.

Q. How long did you take the Action to have lasted?

A. About seven or eight Mi­nutes.

CROSS EXAMINATION.

Q. Had they Crapes or black Faces?

A. I do not know.

Q. Had any of them Canadian. Gowns?

A. I did not observe.

Q. You was very particular in observing the Hats: Do you think it is possible that they could have Gowns without your Knowledge?

A. They might have, the Peo­ple being in a Huddle together.

Q. Was you bye when Mr. Walker received the first Blow?

A. Yes.

Q. Were they not all in when Mr. Walker received the first Blow?

A. Yes. They were all one be­hind another, but within the Door.

Q. You run away into several Houses, and all that; saw several People coming out, which you imagine to be the People; and that it was about seven or eight Minutes, the whole Transaction?

A. Yes, I imagine them to be the same People.

Q. Did you go to Dr. Feltz?

A. Yes.

Q. Who was with him?

A. Mrs. Feltz and Mr. St. Luke.

Q. When you came back to the House again, and entered the Room, and found Mr. Walker in the Condition he was in, was there any Body there?

A. Yes.

Q. Who?

A. William Fontaine Mr Walker's Servant; but do not recollect any other Person.

Q. How long did you stay in the Room. Had you any Con­versation with the Servant?

A. No, I found him in the same Situation as he had not moved.

Q. How long was it since you quitted the House first to the Time you found Mr. Walker lying wel­tering in his Blood, with his Ser­vant?

A. It might be perhaps about twenty Minutes.

Jury. Q. Do you think it is possible that you could have known your most intimate Friend thus disguised?

A. I could not for the short Time I had, in the Situation I was in; but having longer Time I might.

Q. Pray was Mrs. Walker car­ried out before you left the Room?

A. I cannot tell.

Counsel for the Crown.

Q. Pray did you mean you could not have known your Friend thus disguised on Account of the Confusion?

A. A Person unconcern'd, or [Page 33] one that had not received the Blows, might have known them if he had known them before.

Q. Did you speak to Mr. Walker?

A. No, I did not speak to him.

Q. What Time did Mrs. Walker return after you returned?

A. In a little Space of time she came up to Mr. Walker.

Jury. Q. Did you know those three Gentlemen before the Affair happened?

A. Yes.

Court—Q. Did you know Ma­jor Disney before the Affair hap­pened?

A. Yes.

William Fountaine, Servant to Mr. Walker, for the Crown.

Q. Was you present when Mr. Walker was assaulted, the sixth December, 1764.

A. I was.

Q. What Number of Men did you see enter the House?

A. Five or six.

Q. What Manner were they dressed?

A. Their Faces and their Hands blackt, different Dresses and different Sizes.

Q. What were their Hands and Faces blackt with?

A. I cannot tell if they were blackt with Crapes or blacking.

Q. What had they on their Heads?

A. Small round Hats that had been cut.

Q. What Coats had they on?

A. Could not say for Coats: Their outward Garments where white.

Q. What Arms?

A. Armes, Blanches, or cut­ting Weapons: I can not tell if they were Swords or Cutlasses. but know they were cutting Wea­pons.

Q. Had they any other Arms?

A. When the came in I saw no other.

Q. Were they drawn?

A. Yes.

Q. Did they enter with drawn Arms?

A. As soon as they entered I saw their arms drawn.

Q. In what manner did they come in; how was the Door fast­ened?

A The outside and inside Doors were shut with Latches; they opened the outside one, and for­ced the Second, breaking a pane of Glass.

Q. Did you see them strike Mr. Walker?

A. Yes, I saw him struck.

Q. Was the Stroke sufficient in your opinion to kill Mr. Walker?

A. Yes I thought the Stroke would have caused his Death.

Q. How many did you see strike him, Mr. Walker.

A. One or two.

Q. Did you know any of the Persons that entered?

A. I think I knew one of them.

Q. Who was he that you knew?

A. I thought it was Capt. Fra­zer, by his Size, Corpulence, Manner of Behaviour, Shape of Body.

Q. By any other Marks did you know any other Person?

A. No.

Q. Had that Person that you believed you knew, had he a Crape over his face?

[Page 34] A. He was black in the same Manner as the others

Q. Were his Hands blackt?

A. The Hands and Faces were black all of them.

Q. How long did you stay in the Room after the first Stroke given?

A. I Saw Mr. Walker receive seven or eight Strokes.

Q. How long did you stay in the Room?

A. I can't tell exactly the Time, I saw them strike Mr. Walker and Mr. Lilly, and saw Mr. Lilly en­gaged with one of them against the Window, and at the same Time one of them would strike me, at which I run away, and the Man pursued me into the Gallery; being pursued so fast, I threw myself through the Rails of the Gallery. I saw a Stroke made with the Cutlass next Morning, and found my Coat cut, but do not say that the Sabre cut it, but thought it to be the same Man that made a Stroke at me in the Room.

Q. Did you hear them say any Thing during the whole Time?

A. No, not one of them.

CROSS EXAMINATION.

Q. You saw Mr. Walker receive some Blows, and some aimed at Mr. Lilly: Pray where was Mrs. Walker?

A. Mrs. Walker made her Es­cape through the Kitchen.

Q. Did Mrs. Walker quit the Room before you?

A. Yes.

Q. How long?

A. I cannot directly tell, I went out in a very little Time.

Q. Was it one Minute?

A. I cannot tell.

Q. How long was it from the first Time the Men burst the Street-door to that Time?

A. I cannot fix any Time.

Q. Could you fix it to a Minute?

A. No.

Q. How long from the Time you threw yourself over the Rails till you returned again to your Master?

A. About five or six Minutes; perhaps more or less.

Q. What Situation did you find Mr. Walker in?

A. Spread before the Fire on a Carpet, stretched with his Hands on his Wounds (as described in Court) and had I not come, he would have been suffocated in his Blood.

Q. Was there any Body in the Room when you returned?

A. No, all alone.

Q. Did you know how long they had been gone before you re­turned?

A. No, not seeing any of them.

Q. Was Mrs. Walker in the Room before you came in.

A. No.

Q. Was you the first Person that found your Master?

A. I was the first that took him up as he was on the Carpet.

Q. Could he speak?

A. No, He was not in Situa­tion to speak, for he could not support himself; when I let him go he fell down again.

Q. Did you see your Mistress come into the room?

A. Yes, a little Time after.

Q. About what Time.

A. I cannot say what Time.

Q. Was it in two or three Minutes?

A. I do not know

[Page 35]Q. What Hour of the Night was it when these People first came into the House?

A. Between Eight and Nine; I cannot fix the Time.

Q. Was not your Master at Supper?

A. Yes, just set down to Sup­per.

Q. Was it the usual Time?

A. No fixed Time, within a Quarter or Half an Hour, some times sooner or later.

Q. You don't know any of those People but one?

A. No.

Q. Did you see any of the Waistcoats or Breeches of these People?

A. No, they having the Table and Stove between me and them when they came in.

Q. What Part of the Room was you in; by your Master or Mistress?

A. I was on the left Side of by Mistress.

Q. When Mrs. Walker came [...], how did she behave?

A. Came in crying out aloud.

Q. Did she speak to him?

A. Yes, she spoke to him, but do not know whether Mr. Walker answered or not.

Jury, Q. Did Mr. Walker re­ceive any Wounds before Mrs. Walker went out?

A. He did receive one or more before she was gone out.

Mrs. Wiggans for the Crown.

Q. Do you remember the As­sult made on Mr. Walker the 6th December, 1764?

A. I remember to have heard it.

Q. Do you recollect any Per­ [...]s diguised come into your House about eight o'Clock?

A. Do not. I never heard by it till Mr. Crofton told me of it a­bout a eleven or twelve of the clock at Night.

Q. You never heard it mention­ed that such a Thing was designed?

A. No, never heard a word of it: Indeed I never did.

Q Did you not speak to Mrs. Mees, and advise her to go and lay the whole Affair open?

A. I did not see her the next Day.

Q. When you did see her, did you ever say that you advised her to go and reveal the whole affair?

A. I say I never did say any such Thing.

Mrs. Case for the Crown.

Q. We are informed that you know a great deal of the Affair of Mr. Walker's Assault?

A. Yes, have heard of it.

Q. Did you see any Persons go into his House or coming from his House?

A. No.

Q. Did you hear any Persons declare that they would take Re­venge of Mr. Walker for imaginary Insults before the Affair hap­pened?

A No! I am come here to an­swer relative to Mr. Disney, and no other Person.

Q. Did you never hear Mr. Dis­ney, make Use of any Expressions?

A. No.

Q. Do you know Mr. Disney.

A. Yes, like a Child, living in Mr. Burton's Family.

Q. Did you never hear of any Expression made Use of against Mr. Walker?

A. No.

[Page 36]

GEORGE MAGOVOCK for the Crown.

You are now called upon to give Testimony on this Occasion.

Q. Do you remember that As­sault on Mr. Walker?

A. Yes.

Q. Was you present.

A. Yes.

Q. Was Major Disney the Pri­soner present at it?

A. Yes.

Q. Was you a Soldier in the 28th Regiment?

A. Yes.

Q. Was there any Plan laid to to disfigure Mr. Walker?

A. There was.

Q. When and where did you first hear of such a Design?

A. At Lieutenant Tottenham's.

Q. How long before the Ac­tion?

A. About six or seven Days.

Q. Did you hear any Thing of it before, and how long?

A. About six or seven Days I say.

Q. But had you heard any thing of it before that Time?

A. Yes, amongst the Soldiers and Sergeant Mees.

Q. What did they say was in­tended to be done?

A. They had a Mind to cut and disfigure Mr. Walker on Account of his Treatment to Capt Payne.

Q. When you went to Mr. Tottenham's who took you there?

A. Sergeant Mees.

Q. Did he say there were some Gentlemen not belonging to 28th Regiment, and not be surprised at seeing them, as they were Friends to the 28th, &c. for the disfigu­ring of Mr. Walker?

A. Yes, he did.

Q. What was the Purpose of his carrying you to Tottenham's?

A. He knocked at the Door, and Mr. Evans, Major Disney, and Mr. Tottenham, came out into the Passage.

Q. Did they speak to you?

A. Yes.

Q. What did they say, and who spoke to you?

A. Mr. Tottenham, who said there was some Gentlemen that I might see in there, Friends to the 28th, and not to be surprised, as there was one of the 27th Regi­ment that would be concerned in disfiguring Mr. Walker.

Q. Did any of them require you to be secret?

A. Yes, Mr. Tottenham told me I must take an Oath not to discover any of those Gentlemen [...] should see in the Parlour.

Q. Was any Day fixed at that Time.

A. No.

Q. Did any Body swear you?

A. Yes.

Q. Did they make you kiss the Book.

A. Yes.

Q. Who administred the Oath?

A. Major Disney (looking at the Prisoner.

Q. What was you to keep secret?

A. Not to be surprised, or discover any of those Gentlemes that I should see: If I should find them difiguring Mr. Walker before the 28th Regiment had done it.

Q. When you had taken the Oath did they introduce you in [...] the other Room?

A. Yes

Q. Did Major Disney go in the Room?

A. Yes.

Q. What was the Subject [...] Conversation?

A. The chief was cutting [...] Walker.

Q. In what Manner did [...] mention it?

[Page 37]A. They said they might meet him in the Street; but did not mention cutting his Ear.

Q. How many Minutes did you stay with them?

A. Not very long.

Q. Where did you go after?

A. Into Mr. Tottenham's Kitch­en.

Q. Did any Thing pass in Mr. Tottenham's Kitchen?

A. No.

Q. Where did you go next?

A. To Sergeant Mees's House.

Q. Was you ever sent for to Mr. Tottenham's again?

A. No.

Q. Was you ever sent for to Mr Tottenham's before that Time, about that Business?

A. I was there several Times.

Q. Do you know any Thing of an Attempt made on Tuesday to disfigure Mr. Walker?

A. I know three Men that stood on the Parade, intending to meet Mr. Walker going or coming from his Store, saying, if they could see him they would lose their Lives but they would cut or disfi­gure him.

Q. Did you hear them speak of that affair on Tuesday?

A. Yes, they said they had mis­sed him, but if they could they would meet him next Night.

Q. Did any of them go?

A. Yes, two of them went next night.

Q. Who were they?

A. Coleman and James Rogers.

Q. Where did they go?

A. To the Street leading to Mr. Walker's below, between that and Mr Lamb's.

Q. How came they to place themselves there?

A. Because they had looked a­bout the Store and could not find him.

Q. Did they expect to meet him at Mr. Lamb's?

A. I suppose so.

Q. They were only waiting; were they armed?

A. Yes, with Swords, and one Pistol.

Q. What Dresses?

A. Blanket Coats.

Q. Had they any Crapes or any Thing on their Faces?

A. No.

Q. Did you not see them on their Stand?

A. Yes.

Q. At what time did you see them standing to wait for Mr. Walker?

A. Before Eight o'Clock.

Q. Did you hear them speak of it next Morning?

A. Yes, they said they had seen him, but could do nothing, as another Man was coming behind him; shortly after I had parted with them, they told me they did not attack him.

Q. Where did those People make ready to go on this Expe­dition?

A. At Sergeant Mees's.

Q. Who?

A. Sergeant Rogers, Sergeant Mees, Coleman, M'Laughlin, Phil­lips, Castles, Rosburne, Daniel Ashman, Thomas Donelly, &c.

Q. These People all set out from Mr. Mees's; at what Time?

A. A little before eight of the Clock.

Q. What Dresses were they in?

A. Blanket Coats, Faces cover­ed with Black, Coleman with a Crape over his Face.

[Page 38] Q. Did you see these People go into Mr. Walker's House?

A. Yes.

Q. Who went in first?

A. Coleman.

Q. Did you see him strike Mr. Walker?

A. Yes, he was the Man that gave the first Blow.

Q. You saw Major Disney there?

A. Yes.

Q. How was Major Disney dressed?

A. In a long Blanket Coat, a Crape over his Face.

Q. What Arms?

A. A Sword and a Stick.

Q. How many more Persons was there, besides those that went to Sergeant Mees?

A. About seven or eight.

Q. And do you know from whence they set out?

A. No.

Q. You did not hear it said?

A. Do not know.

Jury. Q. Did Major Disney speak; how did you know him.

A. By his Make and every Thing else; have known him many Years.

Q. Did you see Major Disney strike Mr. Walker?

A. I saw him draw out his Sword and run.

Q. How did he carry his Sword?

A. Under his Blanket-coat un­der his left Breast.

Q. Did you see him draw it?

A. I saw no Scabbard.

Q. Did you see him in the out­ward Room in the Hall?

A. Yes.

Jury. Q. Did you know that he was to be there?

A. No.

Q. Who gave the Wounds to Mr. Walker?

A. Coleman, then Rogers.

Q. What Resistance did Mr. Walker make?

A. He endeavoured to make through them, Coleman, Rogers, and Ashman.

Q. What Time did Major Dis­ney advance with his Sword?

A. Before he fell; that is be­fore I took Notice he was fallen.

Q. Where did Mr. Walker go after the first Blow?

A. He went into the next Room, and went into the Corner of the Parlour close to the Door of the other Room.

Q. Did you see him there?

A. Yes.

A. I saw him engaged, that he could not make any Resistance, having received so many Blows.

Q At that Time did you see Major Disney?

A. No

Q. What did Mr. Walker then do?

A. He moved from thence to the Fire-place.

Q. What made him move to the Fire-place?

A. I suppose they jostled him in struggling.

Q. When he was near the Fire­place did you see him engaged with any Body?

A. I saw John Clark, a Black­smith, strike him on the Leg with a piece of Iron.

Q. Did that make him fall?

A. I suppose so,

Q. You said you saw Major Dis­ney advance with with his Sword, did he say any Thing?

A. He might perhaps say some­thing, but I did not take Notice of him as others spoke; I did not [Page 39] positively hear him say any Thing.

Q. You saw Major Disney ad­vance with his Sword, did he make a Thrust at him?

A. No,

Q. You say you went out of the Room; how long did you stay?

A. A short Time,

Q. Did you return, and what did you see?

A. I saw Rogers on him, and engaged in cutting off his Ear,

Q, Did you see him cut off his Ear?

A, Yes, I did,

Q. Did you hear him say any Thing?

A, Nothing particular,

Q, Did you imagine Mr. Walker was killed when you quitted the House?

A, Yes we thought so,

Q, What made you and them think so?

A, Sergeant Rogers said he thought he was dead, that he thought he had cut his throat, but however he had his Ear,

Q. Did you hear any one say they were sorry he was not dead?

A, Yes,

Q, Who said so?

A, Philip Castles and Ashman; they were sorry as there would have been no more said of the Af­fair,

Q, Did the Blow seem intended to kill?

A, Yes, and the Party thought they had killed him: I heard them say, he's dead, the Rascal was not liked,

Q. Which way did they go af­ter quitting the House?

A, They went in three Parties, one towards the Parade, another towards the Recollets Street, and one towards the Market-place,

Q, In which Party did Major Disney go?

A, I cannot say which of the three.

CROSS EXAMINATION.

Q. Was you one of the Con­sultation?

A. Yes I was,

Q. You agreed on a Plan to be sure?

A. Yes,

Q. I should be glad to know that Plan; was it to strive to cut and disfigure Mr. Walker; was it agreed at that Plan that his Ear was to be cut off?

A. No, not at that Time,

Q. I suppose you will give us an Account of the different Stations you were to act in?

A. There was no particular Thing mentioned at that Time to strive to cut and disfigure Mr, Walker.

Q. What particular part was every one to have?

A. No particular Part to each, every one to do his best,

Q. Pray what Part was you to act?

A. Was to let Capt. Payne and Tottenham know if any of the Party were taken or wounded in the House.

Q. Did you execute that?

A. Yes.

Q. You mentioned something about something previous to be executed, what was that?

A. James Rogers, Coleman, Ser­geant Mees and Daniel Ashman, were to go on the Parade, in Or­der to way-lay Mr. Walker coming from his Store.

Q. How do you know?

A. I was on the Parade, but not with those People.

[Page 40]Q. Did you stay on the Parade all the Time they were there?

A. No, I did not, but I went to the House where they came when they returned, and could not find him.

Q. The next Day was there not another Plan laid; were the same Men there?

A No, only two that I saw, Sergeant Rogers and John Coleman, one in one Corner and another in another.

Q. How long did they stay there?

A. Perhaps Half an Hour. I was at a House they came to, and they said they had seen him, but could not attack him as some Per­son was coming after. They did not stay three Quarters of an Hour.

Q. How do you know that?

A. Because they came to a House where I was.

Q. You said you was employed to carry Messages from Mr. Wal­ker's House to Payne and Totten­ham; and who appointed you?

A. Rogers and Mees.

Q. What Time of the Night was it when you saw Capt. Payne?

A. A little before Eight.

Q. What Day of the Month, Year, &c.

A. No Answer.

Q. What Year?

A. About two Years ago, but do not recollect the Particulars, as I made no Memorandum.

Q. What Hour of the Night was it?

A. Little before Eight I think.

Q. When you carried the first Intelligence to Capt. Payne, Had you seen those People in Mr. Wal­ker's House?

A. Yes.

Q. Pray what Part of this Tra­gedy had been acted before you gave this Information to Capt. Payne?

A. They were in the Parlour.

Q. Had Mrs. Walker fled out of the House before you returned, and the others?

A. They had all fled.

Q. Did you go into the Par­lour

A. Yes.

Q. Had Mr. Walker gone in?

A. Yes.

Q Had he received any Wounds before you went?

A. Yes.

Q Had he been knocked down?

A. Yes.

Q. Then it was you went out?

A. Yes.

Q Before he fell?

A. Yes, When he fell.

Q. What did you say to Payne and Tottenham?

A. I told them that I had gone into the other Room, and that none of the Party was hurt or taken.

Q. What distance of Time was it before you returned to Mr. Wal­ker's?

A. A few Minutes, not two.

Q. Did you speak to him, and are you positive he was there?

A. Yes.

Q. When you returned again what was become of Mr. Walker?

A. He was close by the Fire­place, quite overcome.

Q. In what position were the rest of the People?

A. A good many about him, and some at a Distance.

Q. What were they doing?

[Page 41]A. I saw Rogers cut his Ear off and the Blood run.

Q. Did he get any Blows?

A. I saw several strike him.

Q. What manner did he lay?

A. He was not quite down, but lying on his Side.

Q. You say when you returned that People were about him, and saw Sergeant Rogers cut off his Ear?

A. He was not quite stretched out.

Q, Pray in what position was Sergeant Rogers?

A. He was standing over him, and took a Knife out of his Breast and cut off his Ear,

Q. After you had seen this, ac­cording to your Discription, after the Ear was put off, did you see him receive any more Blows?

A. I did not see any Person strike him after that; it might be.

Q. How long did you stay there?

A. It was only a short Time.

Q. What did you do then?

A. I went off as well as the rest.

Q. Did you all go away.

A. Yes.

Q. And pray how often did you go backwards and forwards between Mr. Walker's and Capt. Payne's?

A. Twice; the second Time I told him that Rogers had cut off Mr. Walker's Ear.

Jury.—Q. What was your dress?

A. A Blanket Coat, Cap and Stick.

Q. Was your Face black'd?

A. No.

Q. Nor Crape over it.

A. No.

Q. Were your Hands black'd?

A. No.

Q. Were any of the Company's Hands black'd.

A. Yes.

Q. Were they all?

A. No.

Q. Whose Hands were black'd?

A. Thomas Donnally and Ros­burne, &c. I am sure there were fix that had their Hands black'd, but do not recollect the rest.

Q. In what Manner were these People black'd?

A. With Grime and Grease.

Court—Q. If after the Ear was cut off he returned after coming from Captain Payne's.?

A. I did return.

Q. What Posture was Mr. Wal­ker in when you returned?

A. He was lying on the Floor.

Q. How long did you stay after that, and the rest of the People; was at a Minute?

A. Yes, it was.

Q. What was the Account you gave Capt. Payne, &c.?

A. I said I had seen Rogers take his Ear off.

Q. What Reply did Payne make.

A. Go and get the Party off as soon as possible.

Q Did you all go away together?

A. As fast as we could get out.

Q. Did Major Disney stay all the Time?

A. I don't know whether Ma­jor Disney staid all the while.

Q. Was he there when you came in the first Time?

A. Yes, I am sure of that.

Q. Was he there the second time, after your giving an account?

A. I did not take notice of him at that time.

Q. Before you went out the first Time you told me that Mr. Walk­er had gone into the Room, and that Mr. Walker had received se­veral Blows, and that Mr. Walker had received a Blow from a Man with an Iron Bar?

[Page 42]A. Yes, to be sure he did at that Time and after.

Q. That you went out after that Affair to tell Capt. Payne?

A. Yes.

Q. Did Mr. Walker receive any more Blows after receiving the Stroke with the Bar of Iron?

A. Yes.

Court.—Q. Was the Blow given by Clark before or after Major Disney advanced with his Sword?

A. Yes, it was before.

Q. Pray how were the People dressed?

A. All dressed in Blanket Coats, only Philip Castles.

Q. How many Canadian Gowns were there. Did you see?

A. There might be others un­der their Blankets; I took no particular Notice of any but Philip Castles.

Q. You did not observe any others with Canadian Gowns but Philip Castles?

A. No.

Q. What had Major Disney on?

A. A long Blanket Coat.

Q. You spoke particularly about Rogers, Coleman, and other black'd Faces, pray was Major Disney's black or White?

A. A Crape over it and FurCap.

Q. Pray how was it fastened?

A. Tucked under his Cap.

Q. Did it hang loose about his Head?

A. No, pretty close to his Skin: I do not say positively.

Q. Did you hear him speak to any body else?

A. No, I did not hear him.

Jury.—Q. Did you hear one of them speak; you named one, who was it?

A. Lieutenant Scott.

Q. What did he say?

A. I know what. Let me come up and I will teach him.

Q. When did that Speech hap­pen?

A. It was before his Ear was cut off.

Q. Was it before he received the blow with the Iron Bar or not?

A. Before.

Q. Did Mr. Scott advance with his Sword in his Hand?

A. He held it up; it was a Broad sword.

Q. At the Time that Major Dis­ney advanced how near was you to him?

A. Not above four Feet from him.

Q. Did you hear him make use of any Expressions?

A. He might, but I did not hear him.

Q. After the whole Affair was over, and all these were retiring, pray what o'Clock was it?

A. I cannot be exact, but am sure it was before nine o'Clock. Have no Watch.

Court.—Q. Do you know how long it was from the Beginning of the Affair until they all quitted the House?

A. It might be a Quarter of an Hour more or less: I think it could not be more: I think it was.

Q. You said it was before eight of the Clock?

A. It was before eight o'Clock we quitted Sergeant Mees's House.

Q. You could not be long a go­ing to Mr. Walker's House?

A. No. not very long; but I am sure it was not nine before the Affair was over,

Q. You say Major Disney had a [Page 43] long Blanket Coat, and pulled his Sword from out of his Breast; you saw him?

A. Yes, I saw him.

Q. Pray what Waistcoat had he under it?

A. I could not see, his Blanket Coat doubling over.

Court—Q. You set out from Sergeant Mee's with the Party?

A. Yes.

Q. Did you see them dressing themselves?

A. Yes.

Q. Why was you the only Man not disguised?

A. Because I was to have no Hand in the Cutting, but to go backwards and forwards.

Q. Do you say all that left Ser­geant Mees's were blackt?

A. All but two and myself.

Q. After the whole Affair was over you say you divided into three Parties?

A. Yes.

Q. Where did you go?

A. I went a-cross the Parade and through St. Lawrence Gate.

Q. What became of your Par­ty?

A. They went out of St. Law­rence Gate some of them.

A. Where did the rest go?

A. Some went one Way, some another, some staid about Totten­ham's.

Q. What became of the other Parties that went towards Mr. Fraser's, did you know where they went?

A. Only that one went one Way and another the other.

Q. Pray what became of you?

A. I went to Sergeant Mee's: They came in at the Quebec Gate, then went out at the King's Store, and over the Wall, and then re­turned at a Sally-port

Q, Was the Quebec Gate left open?

A, Yes it was.

Q. At this Transaction of the sixth December, were you at Ser­geant Mees's before Roll-calling?

A. Yes, I was there an Hour before Roll-calling, and returned from Roll-calling to Sergeant Mees's, staid there a little, and then went to Case's.

Q. Did you stay ten Minutes?

A. Yes, between six and seven o'Clock.

Q. At Case's, was that the ex­act Time; answer?

A. I did not regard exactly the Time; I will not be positive; It might want a Quarter perhaps.

Q. After leaving Case's where did you go?

A. To Sergeant Mees's I say.

Q. What Road did you take?

A. Down by the great Church and so to Mees's.

Q. So you went no where else?

A. No.

Q. Did you see Capt. Payne at Sergeant Mees's?

A. Yes, a little before that Af­fair.

Q. How long had he been in Town?

A. I do not know; he did not tell us, nor did I ask.

Q. Did you drink together?

A. There was Rum.

Q. Who paid for it?

A. I did not pay for it.

Q. Was he disguised, was his Face blackt?

A. No.

Q. What Time did you see Capt. Payne?

A. [...] came out much the sa [...] Time, and Capt. Payne staid [Page 44] opposite the House of one Bellair with a Party.

Note, Bellair 's opposite the End of Mr. Walker 's House,

Q. The second Time you went out to give Intelligence, was there any Person with them?

A. No, not any body.

Q When you crossed the Pa­rade did you meet any body?

A Yes, one Grubb a Soldier; I did not take any Notice of any Person but that Solder.

Q. Did you see one Falconer?

A. I did.

Q. Who was with him?

A. Lieutenant Keough.

Q. Were there any Soldiers with him?

A. I did not see any.

Q. What was he doing there?

A. Looking about as a Guard.

Q. Was he one of the Party, did he know of the Fact?

A. I suppose they did.

Q. How was he dressed?

A. In Blanket Coats.

Q. How armed?

A. Mr. Keough a Sword and long Stick, Capt. Falconer a Dag­ger and Pistol.

Q. How did he carry the Pistol?

A. In his Breast, Dagger by his Side.

Q. After you quitted Mr. Wal­ker's House, going over the Pa­rade, did not you run fast; was you walking or running?

A. I was walking at first, then I went pretty smartly.

Q. How near were you to Capt. Falconer?

A. I Went close to him.

Jury.) Q. What Waistcoat had he on?

Oakes) A. A red one.

Jury.) Q. Had he Stock or Neckcloth?

Oakes) A. I do not know.

Court Q. Where did Capt. Payne keep the Guard?

A. At Bellair's.

Q. Did you see him before you went in to Mr. Walker's?

A. He came out with us from Sergeant Mees's.

Court. Did Capt. Payne come out with you?

A. Yes.

Q. Did he take Guard there at that Time?

A. Yes he did.

Jury, Q. Where did you carry the Message to Payne and Totten­ham?

A. Just at Bellair's House.

Gregory. Q. Why you said just now that you carried it to Capt. Payne at Sergeant Mees's.

A. No, I did not; you mistook me.

Jury. Q. Was Major Disney one that had his Hands blackt.

A. No, I did not observe.

Q. You must have observed when he came to present his Sword?

A. No, I did not.

This Witness being dismissed the Counsel for the Crown desired that Mr, Walker might relate a Circum­stance corroborative of Part of Ma­govock 's Testimony,

THOMAS WALKER.

I drank Tea at Thomas Lamb's, Esq then a Magistrate, on Wed­nesday Evening, and about eight o'Clock Mrs. Walker sent a Servant after me; coming from Mr. Lamb's in the narrow Part that leads to my House, I met two Men in Blanket Coats, with Clubs, who seemed very menacing. Mr. Lamb [Page 45] wanted to borrow two? Volumes of Shakespear, and sent his man after me, so that nothing happened from these People that Night.

James Case, of the 27th Regiment, for the Crown,

Q. Did you see People coming from Mr. Walker's House the 6th of December, 1764?

A. Yes.

Q. The same Night.

A. Yes.

Q. Which way did they seem to be going?

A. From Mr. Walker's House; between eight and nine.

Q. Was it before or after Roll-calling?

A. There is Roll-calling at Re­treat-beating and eight o'Clock, but there was not that Day to my Knowledge.

Q. You guess the Time between eight and nine?

A. Yes.

Q. You say they were running as if they were running from Mr. Walker's House?

A. Yes.

Q. How many did you see?

A. Five.

Q. Did any body go in pursuit of them?

A. Yes, one Grubb.

Q. Did you know any of them?

A. Simon Evans, Capt. Payne and Rogers.

Q. Did Payne say any thing to you?

A. Yes, he said go back again, but he did not, and Rogers cut him on the Head with something like a Broad-sword. I watched Payne and Tottenham into Totten­ham's House.

Q. Did you see Magovock?

A. Yes, that Night I parted with him at seven or eight o'­Clock at my House.

Q. Where did he go?

A. I cannot tell.

Q. Did he say any thing about his Business?

A. Yes.

Q. What did he say?

A. You will hear something remarkable between this and next Morning.

Q. Did he say any Thing about Mr. Walker?

A. No, only that a great Event would happen.

Q. What Time he come?

A. Between six and seven o'Clock; and was with me about an Hour.

Q. Did you see Major Disney that Evening?

A. No, I cannot say it is him; two People crossed the Parade, one tall, the other a little Man, about half after Eight.

Q. who were those People; do you know them?

A. Neither was Major Disney. One a tall Man, the other a little Man.

CROSS EXAMINATION.

Q. Pray what Condition was Magovock in when he came to your House, was he drunk?

A. He was not very drunk.

Q. What do you call drunk; was he able to stand?

A. Yes.

Q. To walk?

A. Yes.

Q. Was he able to go about Business?

A. Yes.

Q. What Time was it that he left your House?

A. About half after seven o'Clock, Magovock asked me if he [Page 46] might lie in my House. I told him no.

Q. Why?

A. Because it was improper for a Soldier to lie out of his Quar­ters.

Q. How near together was it that you left the House?

A. About a Minute.

Q. Where did Magovock go?

A. Intending to go for his Quar­ters.

Q. What Street did you live in, was it in the Street Colonel Christie lived?

A. Yes.

Q When he left your House did he go down that Street to­wards the River?

A. Yes.

Q. Where did you go when you parted with Magovock?

A. To the Recollet's Street; but stopped to talk with one Johnson in the Way, then went down di­rectly to the Parade.

Q. When you came to the Pa­rade what did you see?

A. I met them crying, stop them, stop them, they have killed a Mer­chant: And met Payne, Evans, and Rogers.

Q. How long was you coming from your Quarters to the Pa­rade?

A. About three quarters of an Hour.

Court.—Q. How do you know the Time; in what Manner did you divide your Time?

A. By Guess.

Q. When Magovock asked to lie in your House, do you think if you had consented he would have gone to Bed immediately?

A. No! the Man was sensible enough.

Henty Mertz, Soldier of the Royal Americans, for the Crown.

Q. Did you see any Person the Night of the Assault going to or coming from Mr. Walker's?

A. The Evening about Eight or Nine, I met a Number of disguised Persons, some blackt, some in Blanket Coats; but thought they were going on some Frolic: Did not much mind them.

Q. Were they going towards Mr. Walker's.?

A. Yes, towards.

Q. Did you know them?

A. I did not know them all, but some of them.

Q. Who did you know?

A. John Mees, Coleman, and Daniel Ashman.

Q. Where did you meet them?

A. Just in the main Street at the End of a little Street that leads to Mr. Walker's near to a Tavern that Mr. Murray keeps.

Q. Did you know any body else?

A. No.

Q. Was Major Disney there of that Party?

A. No.

Q. Did you see Magovock there?

A. I did see a Man like Mago­vock, with a Blanket Coat, and a Stick his Hand.

Q. You had known Magovock before this?

A. Yes.

Q. How long?

A. Three or four Years.

Q. You was well acquainted with his Person?

A. Yes, and to the best of my Opinion he was one of the Party.

Q. Those Persons that you knew again had they disguises on their Heads?

[Page 47]A. Daniel Ashman had not.

Q. Did you speak to them?

A. Yes, I spoke to Ashman.

Q. What did he say?

A. Never you mind it.

Q. Did nothing else pass be­tween you and Ashman?

A. Not at that Time.

Q. Did you see him again?

A. Yes, I saw him after.

Q. Where did you see him?

A. At a little Sally-port by the Governor's House.

Q. Was that Sally-port open?

A. Yes, it was open at a little after nine o'Clock.

Q. Who did you see with Da­niel Ashman?

A. Sergeant Mees. Then I asked Ashman what they had been about, having heard something of the Affair; he said I believe we have done for Mr. Walker.

Q. You did not see Major Dis­ney in that Group of fourteen or fifteen?

A. No, not to my Knowledge.

CROSS EXAMINATION.

Q. You did not speak to Ma­govock?

A. No.

Q. How did you know it was he?

A. Having drank with him very often, according to his Size, &c. so knew it was him.

Jury.—Q. Had he any Thing remarkable to the rest?

A. No.

Q. You did not see his Face?

A. No.

Q. Nor hear him speak?

A. No.

Counsel for the Crown.

Q. Some of them had Crapes over their Faces?

A. Yes some of them; Ashman had not, Coleman had something black, or a Crape over his Face.

Q. How near was you to them?

A. Half the Breadth of the Street.

Q. Could you know their Fea­tures notwithstanding their Faces being blackt and disguised?

A. No, being Moon-light.

The Counsel for the Crown not thinking any more Evidence neces­sary, rested the Matter here, and the Council for the Prisoner opened his Defence as follows:

N. B. There were three Gen­tlemen of Counsel for the Prisoner, Mr. GREGORY, Mr. MORRISON, and Mt. ANTILL.

The Prisoner's DEFENCE. Counsel for the Prisoner.

After the long Evidence laid be­fore the Court, and from the vast Contradictions of Things that in­terfere with each other, I think that nothing ought to be rested on that Evidence, But as it is a Crime so below a Soldier, and for fear the least Sully should remain on my Client, I will take up a little Time, and hope I shall be able to take that away, that he had the least Hand in it. I believe no Man can look on such a Crime with more Contempt than I do, &c.

We shall call a few Evidences. Madam Landrieves for the Prison­er, as interpreted by sworn Inter­preter.

Q. Do you remember some Time in the month of December, the sixth, being at a Ball at Doctor Robertson's?

A. Yes.

Q. What Time of the Day did you go?

A. At four o'Clock.

[Page 48]Q. Did you see Major Disney?

A. Yes.

Q. What Time did he come there?

A. At five or h [...] after five.

Q. What Time did Major Dis­ney stay there?

A. All the Evening.

Q. What Time did he go away?

A. Between three quarters af­ter nine and Ten.

Q. Did Major Disney go out of the Room from the Time he came in, till he went away?

A. No.

Q. Could he go out without your Knowledge?

A. No.

Q. How did you pass you Time?

A. At Half after four we began to boil Melasses, or make Tire.

Q. Major Disney, was he there?

A. Yes! and play'd a great many Pranks with me.

Q. What did you next?

A. We drank Tea.

Q. How long did the boiling of the Melasses last?

A. About three Quarters of an Hour.

Q. Did Major Disney drink Tea?

A. Yes.

Q. After having drank Tea what did you do?

A. We play'd at Blindman's-Buff.

Q. How long did that last?

A. Perhaps Half an Hour.

Q. After that did you dance?

A. Yes.

Q. Did Major Disney dance?

A. Yes! with me.

Q. How long did you dance?

A. Till Supper.

Q. What Hour?

A. Half after Eight or three Quarters.

Q. Did Major Disney dance all the Time till Supper?

A. Yes.

Q. Did Major Disney sit down to Supper?

A. Yes, next to me.

Q. How long did you sit at Sup­per?

A. Till we heard the News that some People had ill-treated Mr. Walker at his House.

Q. Did Major Disney stay at Table till that Time?

A. Yes.

Q. What Time did he go away from thence?

A. A Man came from General Burton for Major Disney; because the Officers were called on that Occasion.

Q. About what Time was that?

A. About ten and half after.

Q. What became of Major Disney?

A. He went away.

CROSS EXAMINATION.

Q. Madam were your Eyes fix­ed on Major Disney from six o'Clock to half after Nine?

A. No. I had them not more fixed on Major Disney than any other Person.

Q. Did you play at Cards?

A. No.

Q. Did you go out at any Time?

A. Yes, I was absent about five Minutes; I left Major Disney in the House, and found him there on Return, at three Quarters after Eight.

Q. Did you look at your Watch when you went out and returned, to know five Minutes?

[Page 49] A. No. But I said five Minutes thinking that was more than the Time I took,

Q. Was you never absent but that one Time?

A. No.

Q. You are very sure you left him and found him on return?

A Yes, very sure.

Q. Was there any alteration in Major Disney's Dress or Appear­ance from the Time you went, when you returned?

A. No, be seemed just as fresh, and seemed to be as composed.

Q. How were the Company employed in the Time of your Absence?

N. B. A. They were fitting round the Stove till the Table was laid, &c. &c.

Mrs. Campbell, for the Prisoner.

Q. Do you remember where you spent the Evening the Night the Attack was made on Mr. Walk­er?

A. Yes.

Q. Where?

A. At Mr. Robertson's.

Q What Time did you go?

A. Half after three, or four o'Clock.

Q. Did you see Major Disney?

A. Yes.

Q. What Time did he come?

A. Between half after four and five.

Q. When did he leave it?

A. Between three quarters af­ter nine, and ten.

Q. Did he stay there during the whole Time?

A. Yes.

Q. Without going out?

A. Yes.

Q. Do you think it possible that Major Disney could be absent without your Knowledge?

A. No: It is not possible.

Q. Who did Major Disney dance with?

A. Madam Landrieves.

Q. What was the Reason Ma­jor Disney left the House?

A. For the Affair of Mr. Walk­er; there came a Soldier to fetch him.

Q. From whom?

A. General Burton.

Q. At what Time were they informed of that Affair?

A. By the Soldier that came on the Part of General Burton, at nine o'Clock.

Q. Before or after Supper?

A We were just at Table.

Q. Was it before or after Sup­per?

A. We were at Supper.

Q. Did you know it before Supper?

A. Yes.

Q. Who informed you?

A. Mr. Howard.

Q. Was Major Disney at Sup­per at that Time when Howard in­formed you?

A. He was.

Q. Had Major Disney been ab­sent at all during the whole of coming in and going away?

A. No.

Q. Was you absent during the Time?

A. No.

Q. How did you pass the Time that Evening?

A. First, making Tire, then Blind-man's buff, after that dan­ced.

Q. How long?

A. Just till half after eight; till Supper.

Q. Who danced with you?

[Page 50] A. Mr. Robertson.

CROSS EXAMINATION.

Q. What Reason did you re­gard Major [...] that he could not go out without your Know­ledge?

A. There were [...] few in Com­pany that Major Disney could not be absent without my Knowledge.

Q. Did you never leave the Room to go into another?

A. Yes.

Q. About what Time?

A. About half after four or five.

Q. The only Time?

A. Yes.

Q. How many Couple were there dancing;

A. Five Couple.

Q Was the whole Company employed?

A. No, one Lady did not dance.

Q. Did you dance till Supper?

A. Yes.

Q. Did Major Disney dance the whole Time?

A. Yes.

Q. Whether in the Dances the whole Company were employed in dancing all the whole Time?

A. Yes.

Q. Did any of them sit down sometimes?

A. They were too few.

Q. What Dances?

A. English Country-dances.

Q. Were they all employed?

A. Yes.

Q. At what Time did you be­gin.

A. Half after seven.

Mr. Robertson, for the Prisoner.

Q. Do you recollect where you spent your Evening 6th December, 1764?

A. Yes! at my own House.

Q. What Company had you with you?

A. Captain Campbell and his Lady, Capt. Evans and his Lady, Mrs. Landrieves, Mrs. Howard, Mrs. White, Major Disney, my Wife and myself.

Q Was Major Disney there?

A. Yes.

Q. What Time did he come?

A. About five o'Clock.

Q. What Hour did he leave your House?

A. About three quarters after nine o'Clock.

Q. Was he absent from your House from the Time he came to your House to that Time?

A. He was not absent but two or three Minutes, from five o'Clock till that Time.

Q. How did you spend your Time?

A. Making Tire, then play'd Blind-man's buff, then danced, then eat a little Supper.

Q. If after you began those Things Major Disney was of your Party?

A. Yes.

Q. Who did Major Disney dance with?

A. Madam Landrieves.

Q. Who did you dance with?

A. Mrs. Campbell.

Q. Pray do you know the Rea­son of his going away when he did?

A. An orderly Sergeant or Sol­dier, from General Burton, came.

Q. Did he mention the Reason?

A. I don't recollect.

Q. Did you hear before then, of [Page 51] any Accident happening to Mr. Walker?

A. Yes I did, about half an Hour before that Time.

Q. From the Time Major Dis­ney came to your House, till the Time he left it, did you quit your House?

A. No: I staid there all the Time.

Q. Do you recollect any Lady being absent for about four or five Minutes?

A. Yes, Mrs. Howard, Mrs. Landrieves, and Mrs. White.

Q. Was Major Disney absent from that Time?

A. No, he was not absent du­ring the whole Time.

CROSS EXAMINATION.

Q. Major Disney was in Com­pany at your House for four or five Hours together?

A. From half after five till ten.

Q. He did not go out of your House till that Affair?

A. No. The Person that came told him that General Burton want­ed him.

Q. You did not observe whe­ther he was absent for a small space of Time?

A. I did not observe; but he might be absent for a Minute.

Q. Whether you have a Memo­ry that he was absent, or only mean to say that you think he was?

A. I don't know that he was.

Q. Did you ever miss him from the Company?

A. No.

Q. But he might be?

A. No.

Q. You was there the whole Time?

A. Yes.

Q. Did you go out of the Room into any other [...] of the House?

A. Yes.

Q. Did you ever leave the Com­pany any Part of the Time?

A. No never, but the Com­pany changed Rooms.

Q. Is it usual for you to take such particular Notice of the Company?

A. There was so small a Com­pany that none of them could be absent without my Knowledge.

Q. What Hour did you begin to dance?

A. About seven o'Clock.

Q. How long did you continue dancing?

A. Till Supper. I am positive from the Time, that Major Dis­ney or any one else, could not quit the Room till Supper, without my Knowledge.

Mrs. Howard for the Prisoner.

Where did you spend the Even­ing, Thursday, sixth December, 1764?

A. At Mr. Robertson's.

Q. What Time did you go there?

A. About five o'Clock, or sooner?

Q. What Company was there?

A. Madam Robertson, Madam Campbell, Madam Evans, Madam Landrieves, &c.

Q. Major Disney, was he there?

A. Yes.

Q. How long did he continue?

A. I saw him there as long as I staid.

Q. How long did you stay?

A. Till a quarter after eight, then went out to my own House, [Page 52] then returned in about four or five Minutes.

Q. Major Disney he there when you returned?

A. Yes.

Q Who went with you?

A. Madam Landrieves and Mrs. White.

Q. Did you see any Alteration in his Dress or Manner when you returned?

A. No, none,

Q. Pray do you remember how Major Disney was dressed?

A. Plain Scarlet Coat with yel­low Lapels.

Q. Have you seen that Major Disney quitted the House after your return till he went away?

A. No.

Q. Was it possible that Major Disney could quit the House from your return, till he was sent for?

A. No, it was not possible.

Q. How did you pass the Even­ing?

A. Making Tire.

Q. Who danced with you?

A. Capt. Evans.

Q. Who with Major Disney?

A. Madam Landrieves.

JOSEPH CASE.

Q. Was you sent by General Burton to fetch Major Disney?

A. I was sent by General Bur­ton. A Number of Merchants came to General Burton and told him such an Affair had happened. The General comes to me and said, Case, put on your Hat, and run to Major Disney, give my Compliments to him, and tell him I want to speak to him. Not to come without him. I went to his House, not at Home; the Servant told me he believed he was gone to a Dance, and believed to Mr. Robertson's, made the Man take his Hat and go with me: Then went to Madam Landrieve's; he was not there; then went to Mr. Ro­bertson's, three Servants were standing at the Door, I asked if Major Disney was there, the Ser­vants said he had been there all the Evening.

Q. What Time was it you was there?

A. I believe about half after nine of the Clock. I told the Ma­jor, who did not stand to ask any Questions, but took his Hat and walked all the Way before, with a plain Suit of Clothes and a laced Hat, his Hair frized, not the least disordered.

Q. Was you a Soldier at that Time?

A. Yes, in the 27th Regiment.

Mrs. Ermatinger, for the Prisoner.

Q. Do you recollect being at Mr. Walker's after the Affair?

A. Yes.

Q. Had you any Coversation at that Time with Mr. Walker, touch­ing the Knowledge of those that committed the Affair?

A. Somebody asked Mr. Walk­er if he knew any Person; his Answer was, That he did not; but believed that he knew Lieutenant Scott, by the Figure and Manner of his Clothes; but only presumed.

Mr. Samuel Ma Kay, of the Royal Americans, to the Character of Magovock.

Q. Do you know George Mago­vock?

A. Yes.

Q, Pray how long did you know him?

A. Ever since he came over; [Page 53] think it was in 1756. He was drafted. He was in the same Company I Commanded.

Q. What is his general Charac­ter: Do you think he is a Man that can be taken for his Oath?

A. He has been flogged several Times for stealing: Well known by several Merchants when he was draughted. Mr. Duncan men­tioned particularly Magovock as a good for nothing Fellow.

Jacob Moran, Sergeant-Major, to the Character of Magovock.

I have known him since the Be­ginning of 1758.

Q. What was his Character?

A. A Man of a very bad Cha­racter; has been flogged for se­veral Crimes; have heard that he deserted once; that he used to steal sometimes: I can give none but a bad Character of him.

Farrel, to his Character.

Q. Pray do you know George Magovock?

A. Yes.

Q. How long?

A. Since the Year 1754: Well acquainted in Ireland.

Q. What is his general Charac­ter.

A. I never knew a good one, always a bad one: He was always a forsworn Man and Thief in the Royal Regiment; a Man not to be credited, and told a Story of his listing, and swearing he was an English altho' an Irish Man, &c.

The End of the Prisoner's Evidence.

After the Prisoner's Council had closed the Evidence in his Defence, the Attorney-General made a Reply, to nearly the following Purport, but less fully and with less Warmth.

'May it please your Honour, and you Gentlemen of the Jury,

"I Beg leave to trouble you with a few Observations upon the Evi­dence that has been produced in the Prisoner's Defence. This Defence seems to consists of two Parts, The one is an Attempt to prove that the Prisoner was engaged in Company at Dr. Robertson's House, during the Time of the Assault upon Mr. Walker, and consequently that he could not be present at it; the other is an Endeavour to discredit the Witness Magovock, by suggesting that there are Contradictions in his Evidence, and making him pass for a Man of a bad general Cha­racter.—This, I think, is the Plan and Substance of the Defence.

"As to the first Part of this Defence, the Presence of the Prisoner, [...] another Place, I must begin by observing, that it is always looked [...]on as the worst and weakest Kind of Evidence that can be made use [...] in the Defence of an accused Person, and is seldom allowed to [...] any Weight in Opposition to a positive Charge, supported by witnesses of Credit: And this for a very obvious Reason, because it the easiest of any Sort of Evidence to be contrived by the Friends of [Page 54] the Prisoner in order to save him, if they are Persons, as too often is the Case, whose Attachment to his Welfare will lead them to trans­gress the Bounds of Truth in his Behalf. To make this Kind of Evi­dence in any Degree satisfactory, it is necessary that several strong Circumstances should concur. The Witnesses, who testify the Pre­sence of the Prisoner at another Place at the Time of the Commission of the Crime, ought to be Persons of undoubted Credit, free from any Connections with the Prisoner (whether of Kindred, or Friend­ship, or Interest of any Kind) that may in the lead tend to biass them in his Favour; the Place at which they saw him ought to be far dis­tant from that where the Crime was committed, so far distant that it should be impossible, or next to impossible, for a Man to go from the one Place to the other in the Time between the Commission of the Crime and his being seen at the other place: This Place ought likewise to be a public Place, where People who have no personal Acquaintance with each other meet by Accident, and the Persons who attest the having seen him there should be Persons unconnected and unacquaint­ed with each other, as well as with the Prisoner. This would be a Proof of an Alibi that would deserve considerable Regard. Thus, if Captain Disney had been proved to be at Quebec, which is 180 Miles distant from Montreal, at the Time of committing this Assault, or within a few Hours, or half a Day, of that Time—and this, not by one or two Friends, who should say that they saw him there that Day in private, but by Witnesses that had no particular Acquaintance with him, and who should testify that they saw him at some public Place there, as, for Example, on the Parade exercising the Soldiers, or on the Mar­ket-place, or at Dinner with a numerous Company at the Gover­nor's Table; and if the Witnesses who had sworn this should likewise tell you to what Cause or particular Circumstances it was owing that they could remember their having seen him there on the Day of this Assault, when they, probably, are not able to recollect on what Day they saw him immediately before, or immediately after, it— Such a Testimony would really be important, and might perhaps deserve to be set in Opposition to the positive Evidence of the Wit­nesses in Support of the Charge.—But how different from this is the Alibi Evidence that you have heard! Three Ladies, and Dr. Robertson, have told you that Captain Disney spent the Afternoon and Evening with them a Dr. Robertson's House in Montreal, not two Hundred Yards distant from Mr. Walker's House. Two of those La­dies Mrs. Howard and Mrs. Campbell, are the Wives of two of the Prisoners now in Custody for this Affair; and the latter is likewise the Daughter of another of those Prisoners. The other Lady, Mrs. Landrieves, is a very intimate Acquaintance and Friend of Capt. Dis­ney's. And Dr. Robertson has given strong Proofs of his eager De­sire to get both this and all the other Prisoners for this Affair dischar­ged, and has gone much greater Lengths for this Purpose than the [Page 55] mere Love of Justice and a Concern for accused Persons, apprehend­ed to be innocent, usually carries Men to: He has, since the Chief-Justice has been in the Town holding the Sessions of the Supreme-Court, been busily exercising his Office of a Justice of Peace with Respect to this Affair, by taking Depositions relating to it. I leave it to him to explain, or to you to conjecture, whether he could have any other Design in doing so, than to influence, in a clandestine Man­ner, the Minds of Men in Favour of these Prisoners, by setting up a Parcel of private Evidences taken thus before him, in Opposition both to that which should be offered to the Grand-Jury, and to that which should be given here publickly in Court before you, Gentle­men, in Support of the Prosecution. One of the Persons whom he has thus examined, has since made Oath before the Chief-Justice, in my Presence, that he had been thus examined, upon Oath, by this very Zealous Magistrate. Such, Gentlemen, are the Witnesses that are brought to support this Alibi.

'Gentlemen, these Witnesses have not told to you to what particu­lar Circumstance it is owing that they remember so exactly the Man­ner in which they spent their Time on the 6th of December, 1764; without which it must needs appear strange that they should remem­ber it so exactly. Can they tell where and in what Company, and in what Manner they spent their Time on the 6th of December, 1765, or even on the 6th of last December, though only three Months past? —Or can you, Gentlemen, those of you that were then in Montreal, remember distinctly where and how you spent your Afternoon and Evening on that very same 6th of December, 1764? If you cannot, is it not somewhat surprising that these Witnesses should be able to do it so exactly, without some particular Circumstance to induce them to take Notice at the Time, or soon after, of the Manner in which they spent that Day? This Circumstance I should have been glad to be informed of.—Was it that they suspected that Captain Disney or Mr. Howard, or Captain Campbell, or Mr. Simon Evans, or any other Person in that Company at Dr. Robertson's, would ever be ac­cused or questioned about this Assault upon Mr. Walker?— Such an early Suspicion, Gentlemen, would, in my Opinion, have been no small Presumption that some of that Company were guilty of it.—What other Conjecture to form concerning the Cause of their remembering so well the Manner and Company in which they spent that Day I know not.—'Tis certain they have help'd us to no other.

'But Gentlemen, other Things in their Evidence afford Matter of Surprise. They not only remember of what Persons the Company consisted, and how they spent their Time, but declare that they are confident that Captain Disney was present in the Company during the whole Time that each of themselves was present there, though that Time was near five Hours.

'Gentlemen, this bold Assertion deserves to be examined, in or­der [Page 56] that you may fully understand it, and assign to it its proper De­gree of Credit, which I believe you will judge to be but little. It may be understood in two different Senses: It may mean either that these Witnesses in their Eyes continually fixed upon Captain Disney, so that he never was out of their Sight and Observation during the whole five hours, which would indeed be a positive Assertion absolutely in­consistent with the Charge; or it may mean that they did not indeed keep the Prisoner continually in their Sight during that whole Time, but only that they saw him there at several different Times during their being together, and that they did not miss him or observe that he quitted the Company during that whole Time; and therefore that they, by Inference, conclude that he did not quit it, because, if he had done so, they think it highly probable that they must have taken Notice of it.—'Tis in this latter Sense the Evidence of these Witnes­ses, must be taken: The other is too bold, or rather desperate, a Kind of Evidence for any People to deliver in a Court of Justice with any Expectation of being believed: And accordingly you must have ob­served, Gentlemen, that when the first Witness was asked whether she had her Eyes fixt continually upon Captain Disney during the whole Time (which she must have said if she had meant positively to af­firm that he was there the whole Time) she readily answered that she did not keep her Eyes thus continually fixed upon him, but that she saw him there very often, and never observed that he left the Com­pany, which she says she could not but have done if he had ever left them, because the Company was but small: And the other Wit­nesses answered in the same Manner. Now this is not a positive As­sertion that Captain Disney was there all the Time: It is only a ne­gative Proposition, or a Declaration that they did not observe him to leave the Company in all that Time, which is a very different Thing. For, Gentlemen. This Declaration, that they never observ­ed him leave the Company, may be true, and yet the Inference they would draw from it, that he never left it, may not be so: He may have left the Company more than once, and they not have observed it, especially for so small a Time as five or six Minutes, which is suf­ficient for his attending a Transaction that happened only at the Dis­tance of Two Hundred Yards from the Place where the Company was assembled, And therefore, Gentlemen, the Evidence of these Witnesses, supposing it to be strictly true, does not positively prove the Prisoner's Alibi, but only gives Room for a probable Inference in Support of it, which being but a Presumption, ought not to be set in Opposition to the positive Testimony of three Witnesses in Support of the Charge against him.

'But, Gentlemen, we may go still further. This Evidence of the Prisoner's Alibi is not even a very strong Presumption. For where is the great Improbability of a Person's absenting himself once or twice from a Company of eleven Persons (which was the Number [Page 57] assembled at Dr. Robertson's) for a short space of Time, such as five or ten Minutes, without being observed by the other Persons in the Com­pany, and that too with such particular Attention that they shall be able to recollect it a long Time after?—Such a Want of Ob­servation of the Motions of the rest of the Company, as not to recollect such little Absences of some one of them, is surely by no Means un­common. Gentlemen, I appeal to yourselves, whether when you happen to be in a Company of a Dozen People for five Hours together, who are met together for the Sake of Mirth and Amusement, you are apt to watch each Person in the Company so very carefully that you can falsely declare afterwards, upon Oath, which of them absented himself from the Company for a little While, and which did not, and can be sure that during the whole Time such or such a particu­lar Person of the Company never left it, even for the Space of five or ten Minutes? Gentlemen, is it your Custom to watch your Company so narrowly: I believe I may say that it is not.—And in [...] present Case is not the Difficulty of observing and remembering [...] Particulars increased by the Variety of Pastimes with which this Com­pany amused themselves?—They were not all the while en­gaged in Parties at Cards, or in dancing, in which Case they might perhaps observe what became of their Partners and the others engaged at play with them: But they spent Part of the Time in making Syrup, Part of it in dancing, Part of it drinking Tea, and Part of it, Gentle­men (which is worthy your Attention) in playing at Blind-man's-buff. Can they be supposed, during all those different Amusements to have been so very watchful of each other? They should at least have ex­cepted those parts of the Time they were playing at Blind-man's-buff, during which they acted the part of the blind-Man.

'Gentlemen, I could not but admire the Rapidity and the Positiveness with which some of these Witnesses delivered their Evidence, particu­larly the first Witness. The Answer was ready almost before the Question was pronounced. I believe she never repeated her Creed or her Catechism more readily or nimbly. She told you the exact Times at which each different Amusement began, as readily and precisely as if she had been reading an Account of them from Minutes of that Af­ternoon's Entertainment taken down at the Time. One Thing only escaped her uncommon Memory, till she was induced to reccollect it, by a positive Question put to her concerning it. This was that she herself was absent from the Company for Part of the Time this Com­pany has been said to continue together. Gentlemen, this Circum­stance she forgot to tell you in her original Account: it was drawn from her in the Cross-examination. But when she did declare it, I make no Doubt, Gentlemen, that you observed the great Importance of it. Gentlemen, it tends to nothing less than to make her Evidence and that of Mrs. Howard (who was absent with her for that little Time) I say, it tends to nothing less than to make the Evidence of both these [Page 58] Witnesses (admitting it all to be strictly true) of little or no Effect in supporting the Prisoner's Alibi. For observe only the Time of this Absence. This Witness and Mrs. Howard have both of them told you that it happend about three Quarters of an Hour after Eight o'Clock, that is, as near as can be judged, at the very Time of the Assault com­mitted upon Mr. Walker. Just at this critical Time they left the Com­pany and went to Mrs. Howard's House for a Table-Cloth, leaving the Company employed in no common Amusement, such as Cards or Dancing, that might require the Presence of them all, but fitting round the Stove till the Supper should be ready: They staid away some little Time, which they think was about five Minutes, and then returned to Dr. Robertson's. Gentlemen, this Time of their Absence may not improbably be a good deal more than five Minutes—per­haps a Quarter of an Hour, or twenty Minutes. Such Mistakes in the Measure of Time happen every Day, where People judge of it without looking at a Watch, as these Ladies have declared that they did.

'In this small Space of Time it was possible, for aught that is con­tained in the Evidence of these two Ladies, for Captain Disney to have have quitted the Company and stept Home to his Lodging, and, there making the little Alteration in his Dress which was necessary to disguise him, to have gone into Mr. Walker's House, and been present for two or three Minutes during the Assault upon him, to overlook and encourage the Persons employed in it. The change of Dress for this Purpose would take up a very short Time. It was only throwing off his Coat, and flipping on a Canadian Gown instead of it, and put­ting a Crape over his Face and a cut-round Hat upon his Head with the Crape tucked in under it. This was the only Change made in his Dress from that in which he appeared at Dr, Robertson's: For the Pri­soner's Witnesses have told you that he was that Day dressed in Scarlet and Mrs. Walker observed that he had a red Waistcoat and red Breeches under his Canadian Gown.

'This slight Change of his Dress he might easily make, and be present at Mr. Walker's House, for a few Minutes, then change his Dress again and return to Dr. Robertson's, in the Compass of a very small Time. We may therefore consider the Evidence of those two Ladies as contributing very little to support the Prisoner's Alibi. It it must therefore rest principally upon the Testimony of Mrs. Campbell, a Lady that is the Wife of one, and the Daughter of another of the Prisoner's now in Custody for this Assault, and that of the very friendly Dr. Robertson, whose Zeal in the Defence of these Gentlemen has been so great as to lead him to take Depositions concerning this Affair, even since the Chief-Justice has been here in Town to hold this Session.

'Such, Gentlemen, is the Alibi to which you are desired to give Credit: An Alibi declaring the Prisoner to have been at a Place not Two Hundred Yards distant from the Scene of the Offence. Pretended to [Page 59] be proved by four Witnesses, but in Truth not positively proved by any one of them, (none of them swearing that they had the Prisoner con­tinually in Sight during the whole Time they were together) but grounded upon a Presumption only, and not a very strong one, that, if he had quitted the Room, though for a very small Space of Time, as five or ten Minutes, during any Part of the five Fours they were toge­ther, they must have taken Notice of it.—And even this poor Presumption is found, upon a Cross-Examination, to be supported by only two of these Witnesses, the other two having confessed that they themselves were absent from the Company for a little Time, just at the critical Juncture of the Commission of the Crime—And this Proof, imperfect as it is, made by Witnesses under a strong and evi­dent Biass in the Prisoner's Favour. This wretched Alibi you are re­quired to believe in opposition to the positive Testimony of three Wit­nesses, two of whom are Persons of unblemished Character, and per­fectly free from Prejudice against the Prisoner, and the third was an Accomplice in the Fact. You cannot, Gentlemen, remain long in Doubt which of these two Testimonies to prefer.

'Gentlemen, I have said that Mr. and Mrs. Walker are perfectly free from Prejudice against the Prisoner. I will explain what I mean by that Assertion. It cannot be pretended that they are free from Resentment against the Prisoner: They must be exempt from human Passions if they were: But their Resentment arises merely from this very Injury with which he is now charged, and from their own certain Knowledge of his concern in it. That, and the Prisoner's Declaration before-hand, That he would be revenged upon Mr. Walker, for his Ill-treatment of Captain Payne, are the only Grounds that Mr. Walker has for any Resentment against Captain Disney. And such a Resent­ment cannot be called a Prejudice against Captain Disney, or in any Degree affect the Credibility of Mr. Walker's Evidence or this Occasion, because the very Existence of such a Resentment supposes necessarily that of the Crime with which the Prisoner stands charged as the Cause and Ground of it. It might indeed affect Mr. Walker's Evidence on any other Prosecution against Captain Disney, either for an Injury done to another Man, or for another Injury done to himself: But in the present Case it cannot have any such Effect. Till this unhappy Vio­lence, or a very little Time before it, Captain Disney and Mr. Walker had lived upon good Terms with each other. Captain Disney himself has informed you that he did so: He has declared that he always en­tertained a Respect for Mr. Walker (that, I think, was his Expression) and expressed it in Coversation whenever he had Occasion to speak of him: And he has called a Witness to prove that he did so. And Mr. Walker has told you that he trusted so much to the Professions of Re­gard that Captain Disney had often made him, and was so conscious in his own Mind of his never having given him any Cause of Offence, that, when he distinguished him among the disguised Ruffians that [Page 60] were come to assaut him, he was encouraged by the Sight of him to hope that his Life was not in Danger, and that the Mischief intended him was only a severe Beating, or Wounding, or something short of Death, in Revenge for the imaginary Insult upon Captain Payne, till he was forced to think otherwise by those dreadful and murderous Words, pronounced from the opposite Corner of the Room by the Man who advanced against him with a drawn Sword, Damn him, let me come to him, and I'll dispatch him with my Sword.

'Gentlemen, this Evidence of Mr. and Mrs. Walker, appears to me to be so weighty, that' if the Alibi Defence of the Prisoner had been supported by positive Evidence absolutely inconsistent with the Charge —if not two only, but all the four Witnesses had positively sworn, that at eight o'Clock exactly they had sat down to play at Whi [...] with the Prisoner, and that they had never left the Table till the Mes­senger came from General Burton with the News of the Outrage com­mitted upon Mr. Walker, but had been all the While either at the Table playing themselves, or near it, looking on upon those who did play, and that the Prisoner had never cut out, but had been one of the Players during the whole of that Time, so that he must have been con­tinually before their Eyes.—and if the Persons who testified this had not been the intimate Friends of the Prisoner, or the Wives and Daughters of the other Prisoners, but Persons entirely unconnected, and very little acquainted, with them—I say, Gentlemen, that is the alibi Defence of the Prisoner had been supported by such a posi­tive Testimony instead of the imperfect and precarious Evidence which you have heard, yet still the Evidence in Support of the Charge would deserve to be preferred to it.—This may, at first Sight, seem a harsh Position: But it will be found upon Examination to be built upon a Principle of Candour and Charity, which directs us to think as fa­vourable of human Nature as the Circumstances of the Case will per­mit us. Gentlemen, it would be a bad Dilemma for you to be reduced to, if you were really under a Necessity of disbelieving the Witnesses on one Side or other, and consequently of supposing those on one of the Sides to be guilty of wilful Perjury. But if you were reduced to this Dilemma, to which Side would a moderately good Opinion of human induce you to impute the Perjury? To those who give Evidence to take away the Prisoner's life or to those who give Evidence to save it? Is it not more natural that Men should commit Perjury to rescue a Man from Danger than in order to effect his Destruction? In the former Case they may think perhaps that the Benevolence of the Intention with which they commit this Crime may somewhat extenuate the Guilt of it; in the latter Case they must feel that the Guilt of the Perjury is aggravated an Hundred-fold by the Wickedness of the Intention with with it is committed. The former is a Crime which Men of loose Principles may be supposed capable of committing, and which indeed is very frequently committed; the latter is a Crime too black for even [Page 61] wicked Men, and seldom or never known to have been practised.— But, Gentlemen, you are fortunately not reduced to this Dilemma, since the Evidence advanced in the Prisoner's Favour has been shewn to be not irreconcileable with the Evidence in support of the Charge. The Prisoner may have spent that Evening in the Company of his three fair Witnesses, and yet have been absent for a short Time to partake in the Revenge taken against Mr. Walker, without being missed by them.

'Gentlemen, that the Prisoner spent that Evening either in the Company at Dr. Robertson's, or in some other numerous Company. I think is highly probable. I should have imagined he had done so if he had produced no Witnesses to prove it: For it is but a reasonable Precaution for any Man to take, who intends to be concerned in any dangerous Transaction, for which he may afterwards come to be ques­tioned. He thereby furnishes himself with a ready Defence against any Accusation of having been engaged in it that happens to be made in a loose and general Manner, without narrowly enquiring into Circum­stances. How can it be supposed, will he say, that I was present at such a Transaction, when such and such Persons can testify that much about the Time at which it happened, or at least not above half an Hour or an Hour, before or after it, I was in their Company, employed in Dancing or some other such innocent Amusement." such a Defence will do very well to answer the Suspicions and Hints thrown out against him in common Conversation, and will pass with many People for a full Justification; and, perhaps, with a little Improvement (if the Witnesses are well disposed towards the Prisoner) by varying the Time and other Circumstances in the Manner requisite, it may meet with Credit even in a Court of Justice; whereas, if he had spent his Time at Home in a solitary Manner till the Time of committing the Crime, he could have nothing of this Kind to set up in Opposition to the Tes­timony in support of the Charge against him.

'These, Gentlemen, are the Observations I thought it necessary to offer to you concerning this boasted Evidence of the Prisoner's Alibi, which makes the principal Part of his Defence. I am sensible they have taken up too much of your Time; but I knew not how to make them shorter. I hope therefore you will excuse this Prolixity, and at the same Time will further indulge me with leave to make a few Remarks on the second Part of the Prisoner's Defence, which consists in an En­deavour to discredit the Witness Magovock.

'Gentlemen, it is of no great Consequence in the present Prosecu­tion what Degree of Credit this Witness deserves, as the Change is sup­ported by two Witnesses of indisputable Credit without him. However, I can see no Reason for treating his Evidence with the Contempt which the Gentlemen of Council with the Prisoner have affected to shew for it. He certainly is not a good Man: No Body has pretended that he was so. He owns that he was an Accomplice in this wicked Action, which no good Man could be concerned in: And Lieutenant Ma Kay [Page 62] has said, that, when he knew him in the Army, he was sometimes guilty of Theft, and has been punished for it by a Court Martial. I readily believe this. But does this render what he says as a Witness in a Court Justice of no Weight or Consequence? Does it follow, be­cause a Soldier has been guilty of Theft, a Crime too common amongst them, that therefore he will be guilty of the great and deliberate Crime (one of the most heinous that can be committed) of swearing falsely in a Court of Justice to take away another Man's Life? Surely it does not: And the Law, Gentlemen, in the Case of Accomplices deter­mines that it does not: For it allows their Evidence to be received against their Fellow-criminals, nay, to be alone the Ground of a Con­viction, without any other positive Testimony, provided there is some concomitant Evidence arising from Circumstances to make it probable. Numbers of People have been condemned upon such Evidence, and with the general Approbation of all the World: And there are now in Quebec Goal two Soldier under Sentence of Death, for breaking open Mr Woolsey's Cellar in the Night Time, and stealing a Cask of Wine from it, who were convicted upon the single Testimony of an Accomplice with them in the Fact, together with a Proof by Mr. Woolsey and his Clerk that the Cellar had been broke open by some­body or other and the Wine taken away. How much more then does such a Testimony deserve to be regarded when it does not stand single, but is made use of only to confirm the positive Testimony of two other Witnesses of indisputable Credit, which is the Case with the Evidence of this Witness on the present Prosecution.

'Gentlemen, the Credibility of a Witnesses Testimony does not de­pend merely upon the Goodness of his Character. The Probility of the Story he relates, the Agreement of it with other well-known Facts, the Minuteness and Particularity of the Circumstances he mentions; and his Illiterateness and Ignorance and utter Incapacity to invent them, if he was wicked enough to endeavour to do so, may make his Evidence deserve to be believed by those who have no Oppinion of his Virtue. These, I presume, are some of the Grounds upon which the Law ad­mits the Evidence of Accomplices, and allows it to have considerable Weight: And these are the Grounds upon which the Evidence of this Witness Magovock deserves to be regarded. Gentlemen, can you sup­pose this Witness, who can neither write nor read,—I say, can you suppose him capable of inventing so long and particular a Story as he has related to you, and which is attended with some Circumstances so uncommon and surprising? Is it likely that he should think of so remarkable a Circumstance as that of the Consultation at Lieutenant Tottenham's House on the Monday preceding the Assault, in which the Prisoner at the Bar administred to him the Oath of Secrecy, unless these Things had really happened? Would he have refused to deliver his whole Evidence about this Matter at once in his first Deposition, if he had not been under the Restraint of such an Oath? Is there any Reason to [Page 63] suppose that he is so refined and ingenious a Villain, as to able to invent such a Story about an Oath of Secrecy, merely to make himself pass for a Man of some Conscience, and give Credit to the rest of his Evidence? I cannot, for my Part, have either so bad an Opinion of his Heart, or so good an one of his Understanding, as to suppose this: His Testimony therefore deserves the same Degree of Credit as is usually given to the Evidence of Accomplices, notwithstanding the Endeavours that have been used to asperse his general Character. It remains that I make a few Remarks upon the Evidence he has delivered at this Trial, and the Inconsistencies which the Gentlemen of Counsel for the Prisoner have observed between the different Parts of it, and between some Parts of it and the Evidence of some of the other Witnesses.

'One of these Contradictions is, that he said in his Cross-Exami­nation that he carried the Intelligence concerning the Progress of the Assault upon Mr. Walker to Captain Payne and Lieutenant Tottenham at Sergeant Mees's House, whereas he had before said that Captain Payne and Lieutenant Tottenham were, during that Assault, standing in the Street in which Mr. Walker's House is situated, near the House of one Bellair, a Baker, which is almost directly over-against Mr. Wal­ker's House. Gentlemen, I doubt not you must have observed that this Mistake was never made by the Witness, but by the Counsel that cross-examined him, who, throughout the whole Cross-examination, en­deavoured to confound the Witness and bewilder his Understanding, by asking him a Variety of Questions unconnected with each other and without any Method or Regard to the Order of Time, with a View to draw him in to make sudden Answers that might not be confident with each other. But in this he was disappointed by the Steadiness and Clearness with which the Witness gave his Answers to all the Questions that were put to him. With Respect to the pretended Contradiction now under Consideration, the Witness's Evidence was really as fol­lows: The Prisoner's Counsel had asked him whether he had seen Captain Payne before he went into Mr. Walker's House, to commit the Assault; to which the Witness answered that he had seen him before at Sergeant Mees's House, and that they had come out from thence at the same Time. After another Question or two, the Counsel asks him where it was he carried the Intelligence concerning the Progress of the Assault to Captain Payne and Lieutenant Tottenham; and the Witness answers, in the Street near Mr. Bellair's House, which is al­most over-against Mr. Walker's. Thereupon the Counsel pretends that this is inconsistent with his former Answer; for that in that he had declared that he had carried the Intelligence concerning the Assault to Captain Payne at Sergeant Mees's House. But the Witness immedi­ately answered, that the Counsel had greatly mistaken him; for that he had never said any such Thing, but only that he had seen Captain Payne before at Sergeant Mees's House, and that Captain Payne had set out with them from that House: And this, Gentlemen, I dare say [Page 64] you observed to have been really his Evidence. Indeed this is a Mi [...] take which it is absurd to suppose he could have made, unless he had been quite a Stranger to Montreal; because otherwise he could [...] know that Sergeant Mees's House was at too great a Distance from Mr Walker's for a man to have gone thither twice with this Intelligence in the short Space of Time the Assault was carrying on in the Manner he had related; so that, if he had invented the whole Story, he would have assigned some nearer Spot of Ground for the Place [...] which Captain Payne and Lieutenant Tottenham waited to superintend and cover the Assault, and to receive the Intelligence he carried the [...] concerning its Progress. In Truth that Part of Mr. Waelker's Street which was near Mr. Bellair's House, and, within a Dozen Yards of Mr. Walker's, was the Spot he all along mentioned as the Place [...] which he delivered his Intelligence to Captain Payne and Lieutenant Tottenham, both in his Answers to the Questions put to him by the Court and in his Cross-Examination by the Prisoner's Counsel.

'The next Contradiction imputed to him is, a Mistake in Point of Time. He said it was about eight o'Clock, or a little before▪ when the Ruffians left Sergeant Mees's House to go to Mr. Walker's to make the Assault, and that it was near nine o'Clock, but not quite nine when the whole Affair was over: And yet he says in another Part of his Evidence that he believes the Assault did not take up above a Quarter of an Hour. Gentlemen, I confess there is this Inaccuracy in the Witness's Evidence, and am desirous that it should have its due Weight with you in the Prisoner's Favour. But can this much avail him [...] —Can the Mistake of a poor common Soldier concerning the pre­cise Time of a Transaction he relates, when he judged of it only by guess and without either Watch or Clock, impeach the Credibility of his Testimony concerning the Transaction itself, when that Testimony is rational and consistent with itself in every other Particular? Certain­ly Gentlemen, it cannot. Mistakes of half an Hour, or even a whole Hour, are frequently made by Men who observe Time much more carefully than such Persons as the Witness can be supposed to do; and indeed they hardly deserve to be called Mistakes, because the Differ­ence of Clocks is sufficient to account for them. This seems to me to so usual and natural, that, in my Apprehension, no Evidence whatso­ever concerning the precise Time of any Action deserves to be much regarded, though delivered by the most respectable Witness, unless the Person who delivers it declares at the same Time that he looked at a Clock or a Watch at the Time the Action happened, or immediately before or after, or else took particular Notice that it happened at the Time with some other regular Transaction that is always carried on at a fixt Hour, such as the ringing of the Bell of a Church or Convent for Morning or Evening Prayers, or some other such remarkable Cir­cumstance. Without some such Circumstance I can easily imagine that the most honest and judicious Person in the World may mistake [Page 65] a full Hour in the Time of any Transaction he was present at, and should think it a mere chance if he was exact. In the present Case the Witness said he believed it was a little before eight when they set out from Sergeant Mees's House to commit the Assault: in which, I am persuaded he mistook the Time by more than half an Hour, for that it must really have been more than half an Hour after eight; at least by Mr. Walker's Clock; because Mr. and Mrs. Walker, and the Clerk and Servant, who have been examined in support of the Prosecution, fix the Time of the Assault pretty exactly. And where now is the great Wonder that a common Soldier, who had no Watch, and whose Mind was flurried with the thoughts of a dangerous Expedition he was going to be concerned in, and with some strong Liquor he had taken to prepare himself for it should think it was only eight o'Clock when in Truth it was half an Hour or forty Minutes after?—I say, what is there to be sur­prised at in such a Mistake? More especially when we consider that possibly the Clock at Sergeant Mees's House, if there was one there, or, if there was not, the Clocks in his Neighbourhood, by which he and his Family had judged of the Course of Time during that Day, might very well be forty Minutes flower than Mr. Walkers's. Surely it deserves very little Consideration. Those triffling Inaccuracies, which may be so easily accounted for, seem to me on the Contrary to add Strength to the Evidence of a Witness rather than to render it less cre­dible, since they shew that the Witness answers fairly and honestly what his Memory suggests to him, without having artfully framed a regular Story with every Circumstance in exact and perfect Order, that he might guard against the Possibility of a Surprise.

'The next Contradiction insisted on by the Counsel for the Prisoner is that concerning the Prisoner's Dress. Mrs. Walker has said that he was dressed in a Canadian Gown, and the Witness Magovock has said that he was dressed in a Blanket Coat. Gentlemen, there is a real in­consistency between these Testimonies. But, I believe, you will hardly think it of much Importance. It is easy for Magovock to have mistaken the Dress of Major Disney amongst the Number of Persons he saw on that Occasion, and yet to be very certain of his Person; as the Person of a Man makes a much stronger Impression upon the Mind and Memo­ry of a Spectator than his Dress. And it must be remembered that Macgovoek has told you that Major Disney was not one of the Party that dressed themselves at Sergeant Mees's House, and set out from thence to go to Mr. Walker's (in which Case it might perhaps be expect­ed that Macgovock should remember his Dress exactly) but was one of the additional Party that came in to assist and protect the former, whose several Dresses it can hardly be supposed that he can recollect with perfect Exactness.

'But, Gentlemen, the main Foundation of this Objection to Mac­govock's Testimony is by no Means favourable to the Prisoner, as will appear if we consider it a little further. The Objection I take to be as follows: Macgovock's Evidence concerning Major Disney 's Dress is [Page 66] cntrary to Mrs. Walker 's, and therefore false; and consequently the rest of his Evidence is likewise either false or doubtful. What then, is it admitted that Mrs. Walker's Evidence concerning the Prisoner's Dress on that Occasion is true? Nothing More is wanted on the Part of the Prose­cution. The Prisoner was present at the Assault in a Canadian Gown according to Mrs. Walker's Evidence; and Macgovock has been Mis­taken in his Dress, and deserves therefore no Credit in any other Part of his Testimony. Let then his whole Evidence be set aside as doubt­ful and good for nothing, since Mrs. Walker's Evidence is thus admit­ted to be true.—But if Mrs. Walker's Evidence is not allowed to be true—if the Person she saw there in a Canadian Gown was not Major Disney, but some other Person—then where is the In­consistency of her Testimony with that of Magovock's? She may have been mistaken in the Person she took for the Major, and yet the Major may have been there in a different Dress, that is, in a Blanket-Coat, ac­cord to Macgovock's Evidence. The most that can be made of this Ob­jection, if a mistake about the Prisoner's Dress can be thought to be of such high Importance, is to get rid of the Evidence of one of these two Witnesses; in which Case the Prosecution will rest upon the Evidence of the other of them, and of Mr. Walker.

'These are, far as I can recollect, the principal Contradictions in the Witness Magovock's Evidence on which the Gentlemen of Counsel with the Prisoner have insisted: And, I presume, Gentlemen, after what has been offered to your Consideration by way of Reply to the Conse­quences that have been attempted to be drawn from them, that you will be clearly of Opinion that they do not materially affect the Credit of the other Parts of this Witness's Testimony. But, as has been be­fore observed, the whole Evidence of this Witness might very well be set aside, if there was Reason for it, and yet the remaining Proof in support of the Prosecution would be more than sufficient to be the Ground of a Conviction, being the positive Testimony of two Witnesses of indisputable Credit. Mr. and Mrs. Walker, who have sworn that they saw the Prisoner in Mr. Walker's House at the Time of the Assault. This is a solid and substantial Proof in support of the Prosecution, which neither the imperfect presumptive Evidence of the Prisoner's Alibi, given by Witnesses strongly byssed in his Favour, and by the Wives and Daughters of Fellow-Prisoners, nor the Mistakes of a third Witness (though they had been as important as they have been shewn to be in­considerable) can impeach. One Thing only can be alledged to di­minish the Weight of it and plead somewhat in the Prisoner's Favour, which I doubt not, Gentlemen, has already occured to you: I mean the Circumstance of the Prisoner's being said to have been disguised by a Crape that covered his Face. This, it might be thought, must have made it difficult for Mr. and Mrs. Walker to descern the Features of his Face; without which it is possible, and, in Favour of Innocence, might per­haps be presumed, that they had mistaken some other Man that resem­bled [Page 67] the Prisoner in Size and Shape to be the Prisoner himself; and that the Hurry of their Spirits on such an alarming Occasion had strengthed the Impression made by such a Resemblance and contributed to confirm them in this Mistake. This is, in my Opinion, the most important Consideration that can be offered in the Prisoner's Favour▪ But, Gentlemen, in answer to it I must observe, that both Mr. and Mrs. Walker have sworn that they distinguished the Features of his Face which takes away all Room for such a Mistake. And that it is by no Means difficult to discern a Man's Features through a Crape you will easily be convinced upon trial. Mrs. Walker has brought here into Court a Peice of Crape of the same Kind with that which was drawn over the Face of the Man she took to be the Prisoner (and which is of the same Kind that Officers wear upon their Arms for mourning in Order to enable you to make this necessary Trial. Take this with you, Gentlemen, when you withdraw to consider of your Verdict of this important Occasion, and try yourselves how far it is capable of concealing a Person's Features. I believe you will find it to be but a poor Disguise, and will soon be of Opinion that Mrs. Walker, at the Distance of about ten Feet, and Mr. Walker at that of only four Feet might very well have been able to discern the Features of the Person upon whom they fixed their Eyes to have been those of the Prisoner at the Bar.'

The Attorney-General having ended his Reply, the Chief-Justice summed up the Evidence to the Jury, who, after withdrawing for about half an Hour, brought in their Verdict that the Prisoner was Not Guilty: And the Prisoner was thereupon discharged.

[Page 68]

THIS Day personally appeared before me Isaac Todd, Esq one of His Majesty's Justices of the Peace, Mr, John Welles, Merchant and made Oath on the Holy Evangelists, That the annexed is an exact of Copy of the Evidence on the Part of the Crown, and also on the Part of Daniel Disney, Esq as taken down by him in short-hand the Day of Tryal, at the Court-House in the City of Montreal, on Wednesday the Eleventh Day of March; and that here is not, to the best of his Knowledge and Belief, any Thing either added or diminished; and that what [...]dence was delivered in French, was taken down as interpreted by Mr [...]allwey, sworn Interpreter.

(Signed) JOHN WELLES.
Sworn before me, this 23d March, 1767.
(Signed) ISAAC TODD.
FINIS.

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