North American. [volume] (Swanton, Vt.) 1839-1841, 1839-11-20

o""'s".DSHh !" DNt"''s LAY, HHSfe Int y
are 10 be made slaves. Joseph L'Ecuyel
and Antoine Cote pave been pardoned, on
giving very heavy bail that they would not
leave the province without the permission
Of the Governor Gensfai and that they
would report themselves every month tc
the nearest justice Of the peace.-ED.1
Here follows the argumentative petition
in favour Of the prisoners, submitted 10
His Excellency Sir John Colborhe, on the
day which preceded that of the execution
Of Messrs. Cardinal and Duqnette:-
"To His Excellency Lieutenant Gene
raj Sir John Colborne, Knight
Grand Cross of Her Maiesty's Most
Honorable Military Order of the
Bath and OF the Hsnoveran Order,
Commander of Her Maiesty's Forces
10 the Provinces Of Upper and Lower
Canada, and Administrator of the
Government of the Province of Lower
Canada, SC. sc. &c.
May it please your Excelency,
eve, Aaron Philip Hart and Lewis
Thomas Drummond, of the city of Mon
treal, Esquires, Counsellors at Law, duly
admitted and authorized 10 practice AS
such in the province Of Lower Canada,
beg leave respectfully to present to your
Excellency this, our argumentative petit
ton, on behalf Of Joseph Narcsse Card-
nal, Joseph Duquette, Joseph L'Ecuyer,
Jean Louis Hilbert, Jean Marie Thibert,
Leon Ducharme, otherwise called Leandre
Ducharme, Joseph Guimond, Louis Cue
rim dit Dusault, otherwise called Blanc
Dusaut, Edouard Therien, Antoine Cote,
Francois Maurice Lepaillenr, and Louis
Lesiege, otherwise called Louis Lesage dit
Laviolette, and to pray that, in considera-
ton of the causes and matters hereinafter
set forth, your Excellency will be pleased
to withhold your sanction or approval of
any finding or judgment rendered, or to be
rendered, by certain court martial, pre-
sided over by MAJOR General Citherow,
which assembled al the city of Montreal,
on Wednesday, the 2Sth day OF November,
now last past, for the trial of the prisoners
above named, upon charge of High
Treason.
We beg respectfully TO submit, the fol-
lowing propositions:-
1stly. That the said Prisoners, as civil
subjects Of the Crown of England, and not
soldiers, were and are not liable to be tried
by Martial Law.
2dly. That the Ordinance alleged to
have been passed by the Administrator OF
the Province Of Lower Canada and Spe-
cia Council, as the Cd Vic. C. 8, tending to
render the civil subjects OF Her Meiesty
amenable TO Courts Martial, and intituled !:
=" An Ordinance for the suppression OF the
F" Rebellion which unhappiIv exists within
" this Province of Lower Canada, and for
+" The protection, of the persons and pro-
"perties of Her Majesty's faithful SUBJ
iects within the same" is illegal and
nullity, and can have no force nor effect in
this Province.
3dy. That the said pretended Ordin-
ance, supposing il TO be legal, can in no
wise effect or be so construed as to extend
the controul of Courts Martial, or OF any
Military Tribunal organized in virtue
thereof, to the case Of the Prisoners.
4thly. That supposing the Prisoners TO
be, or to have been, amenable to Martial
Law, the proceedings in their case
have been repugnant TO the laws of the
land and the practice Of Courts Martial
and were and are altogether illegal, null
and void.
The doctrine laid down in our first pro-
position is so unquestionably true, as 10 re.
qure 10 arguments in support Of it; we
will, therefore, on this point, restrict our
selves to two quotations, the one from the
celebrated Sir Mathew Hale, the other
from report of the case of Sergeant
Samuel George Grant, argued in the
Court OF Common Pleas, in England
Trinity Term, 1892, in which the funda-
mental principles Of this doctrine are fully
set forth.
Sir Matthew Hale, in his History OF the
Common Law OF England, 10 speaking Of
martial law, expresses himself as follows:
=" But touching the business of martial
law, these things are to be observed: Istly,
that, 10 truth and reality, it is not law,
bu; something INDUCED, rather than allow
ed, as a law; the secessity OF government,
order and discipline In an army is that only
which can give those laws a countenance:
guod enim nseessitss eogtt defendi. 2dly,
this INDUCED law was only 10 extend to
members % the army, or to those of The
opposite army, and never was so much in
dulged, as intended 10 be executed or ex-
ercised upon others foI Others, who had