North American. [volume] (Swanton, Vt.) 1839-1841, 1839-11-06
EDITED BY CANADIANS AMERICANS.


Der last, cannot come within the scope OF
the said ptetendcd ordinance, 81 Victoria,
cap s, which is declared 10 be founded
upon The said pioelamalioa Of martial law,
'iuasmuca az 10 law or proclamation can
have, OF be nale 10 produce, retroactive
effect
istv, Because no court martial, even
though assembled TO try persons amenab!e
/ to tribunal Of that nature, can subject
any inditidualsio the punishment Of death
| for any crime nj expressed 20 be- furnished
/ BY the muiiny act, or by the articles Of
war; whereas the crime OF high treason,
now imputed to the prisoners, which is
punishable by death and atlainder, accord
| ing 10 the laws OF the land, is not specified
or referred To, in the said muliny act, or
in the articles OF war.
2dly Because the proceedings before the
SAID tribunal, designated as a court mar
tia, have not in tkeir instance been car
ried on in the manner required by the law
Of the land, and the practice Of courts
martial. in all eases over " hich such courts
have competent jurisdiction.
Sdly, Because evidence Of n nature ia
vourabe to the prisoners, although given
by the witnesses, was not recorded, and
questions tending TO elicit other evidence
favourable TO the prisoners, were rejected.
1t cannot be contended that the prison
ers have been torecIoseG from thus protest
ing, inasmuch as the incompeiency of a tri-
bunal before which a prisoner is tried, may
be urged at any stage OF the proceedings
And inasmuch, moreover, as the objections,
lately set forth, are founded upon the lille
gality OF the proceedings had before the
said tribunal as well previous 10, az
since the opening Of the trial"
JosEpH ". CARDINAL,
0'e"eo .IosEpH DUqUETTE, &c.
Montreal, 4th December, 1888.
The above protest being rejected, the
prisoners beg leave respectfully to submit
TO the Cour, the following moion;-
Province The Queen,
of vs.
Lo,cer canada. Jpn. NJ Cardinal Ell al
Whereas the evidence on the part Of
our said lady the Queen hath been duly
closed in the said cause; and whereas no
leg al evidence hath heen adduced TO esta~
blish the charges against Louis Lesege,
otherwise called Louis Lessge dill Lavio-
lette; and whereas the testimony OF the
said Louis Lesege, otherwise called Louis
Lesage dit Lavioleite, is material and ne
cessary TO The defence Of the eleven other
prisoners now under accusation; they, the
said remaining eleven prisoners, namely:
Joseph Narcisse Cardinal, Joseph Du-
luetle, Joseph L'Ecuyer, Jean Louis
Thiben, Jean Marie Hilbert, Leon Du-
charme, otherwise called Leandre Du-
charme, Joseph Guimond, Louis Guerin
r.. .bn -
sault. Edouafd ThcrieD, Antoine Cote,
and Francois Maurice Lepalleur, having
BY law right to avail themselves OF such
testimony, and to demand thai The said
Louis Lesiege, otherwise called Louis Lee
sage dit Lavoette, be discharged FORTH
with, for the purpose Of giving such testi-
monv (wiihout recognizing the jurisdiction
Of the said court over them, or any Of
them, and without WAIVER Of any objection
by them heretofore signed urged or plead
ed), humby move that the court do take
the case OF he said Louis Lesicge, other
wise called Louis Lesage dit LavioIetle,
into consideration instanter, and iherefrom
discharge The said Louis Lesiege, otherwise
called Louis Lesage dit Layioletie, from
the accusation OF high treason, now
pending against him as aforesaid, in order
that he may be, in due course of law,
examined as Witnesses in their behalf
And The said Louis Lesege, Otherwise
called Louis Lesage dit Lavioetfe,a s we'll
An his own behalf, as in futlherance Of The
above application thus preferred on the
part Of his fellow prisoners, prays that bis
case may be taken into consideration,
instanter, and that he be forthwith
discharged from the said accusation.
The prisoners found their application
upon the practice universally followed in all
courts OF law, binding alike on all courts
martial in their proceedings, hen not other
wise regulated by the statute; and would
humhly refer the court 10 all writer's on The
Rules Of Evidence in criminal cases, and
more especially 10 case in point, namely.
.Staford's Case, II. T. 1901, (K.B
east. SOC, which is referred 10 in Bacon's
.abridgment, under the word: Martial
Law aud Courts Martial, No. $780, in The
following terms: The Mutineers OF The
Bounty were tried by Court Martisl, at
Portsmouth. There being no evidence
against one Of the persons accused, it was
insisted, on the part nf another Of them,
that he had right In examine the first
on his behalf. The Court, however, by