DISCOURS DE M. FITZPATRICK

The prosecution having declared their case closed, **. Fitzpatrick addressed the court.

MR. FrrzparTriok.—May it please the court: At the request of the counsel who are associated with me in the case, I beg leave to renew the application which T made at the tirae of the arraignment of our clients, and which application I then understood wus kept in abeyance by Your Honors : that the Crown should be called upon

‘to elect between the two charges contained in the two counts of

this indictmer+, before we are asked to proceed with our evidence.

In renewing this application, I shall not trouble the Court with a

vepetition of the references to the different authorities which I had

the honor to put before you in the-first instance. I presume Your

Honors have got a note of them,

I desire, in addition, to ask the court to take the responsibility of. F us

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saying, as matter of :aw, that there is now before this court evidence suficient to justify Your Honors in calling upon us to offer any evidence whatever under the second count of the indictment, and I ask Your Honor: also to say, as matter of law, that the crime of conspiracy to defraud, charged in the second count of this indictment, has been made out prima fucie to the satisfaction of Your Honors by the Crown.

The charge, in the second count of the indictment, is to the effect : That the Honorable Honoré Mercier and Ernest Pacaud, in the year 1891, did unlawfully combine and conspire together by divers

. false pretences and divers means and devices to unlawfully obtain

and acquire to and for themselves of and from a certain institution

in the city of Quebec, called the Caisse d'Economie, a large sum of money, to wit, the sum of $60,000, of the moneys of the said insti-

tution with intent to cheat and defraud the said institution thereof. The law which governs cases of this sort may, I! think, be safely stated by me to be practically undefined and undefinable, Your. Honors will find that the scope of the law of conspiracy has been extended by successive generations of judges from he time that we first find it in the Statute of Edward I, until it finally reached its culminating point in the extraordinary doctrine laid down by Judge Fitzgerald in the “ No Rent Manifesto” case in Ireland, and by Recorder Bompas in the “ Trades Union ” cases in England.

In consequence of those judgments and of the abuses which crept into the administration of justice, the whole subject of the law of conspiracy was brought up for discussion in the English House of Commons, and there a lengthy debate was had on a resolution introduced asking the Government to define the law of conspiracÿ

‘ in such a way as to make it cease to be what it had become, à

standing menace to the liberty of the subject. Your Honors will find that débate, —and I think it interesting to read —in the English Hansard Debates of 22nd March last. The whole subject of the law of conspiracy is there discussed, from a legal standpoint by the first legal minds of England, and from a political standpoint by the foremost statesmen of the Empire. Nothing, however, appears to have resulted from that debate, except to üraw the attention of the public to the ridiculous éxtremes to which the doctrine of conspiracy had been pushed. To such extremes has it been carried that a dull and passionless legal text writer like Roscoe mentions cases in which a charge of criminal conspiracy may be maintained, and then says

- thut the vagueness of the definitions leaves in the hands of the

judges to declare it to be a crime to do almost anything which the

judges regard as a moral wrong, or politically, or socially dangerous.

1 state all these things simply to put before Your Honors my appreciation of the duty which you are called upon to perform in this case

and to enable Your Honors to understand that, if you have great . latitude in the interpretation of the law of conspiracy, there is the

corresponding responsibility which #ttaches to the éxercise of your Jiscretionary power.

For the purposes of this case, however, I am willing to accept the definition of conspiracy as it was given to us by the leading counsel for the Crown, when he opeued his case to the Jury.

My learned friend, Mr. Stuart, said that conspiracy might be defined as “ the unlawful combination of two or more persons to do “an unlawful act, or to do an act lawful or indifferent in itself by “ ynlawful means” This is the definition to be found in the 3rd volumes of Russell on Crimes.

‘ An indictement for conspiracy must show, and the proof must establish at least, an unlawful agreer. ent for an unlawful purpose or to effect à lawful pupose by unlawful means.

The unlawful combination is therefore the gist of the offence, that is to say, there must be an unlawful agreement between two or more persons ; and unless that unlawful agreement has been proved to the satisfaction of the Court to have existed between the persons here charged, until the foundation of the whole charge is made out, we urge that yours Honours should not allow the case to go to the Jury. The Queen and Taylor 25 Law Times N. 8, p. 75.

The indictment here charges that the Defendants, Mercier and Pacaud, did fraudulently combine to obtain of and from Her Majesty by false pretences the sum of #$60,000, and alternatively they are charged xith having conspired to defraud the Caisse d'Economie of the same sum of money by means of the same false pretences.

The fraudulent combination is therefore limited to the two defendants, The uniawful object which they are charged with having sought to obtain is stated to be the obtaining $60,000, the monies of the Bank and of the Province, the means used, false pretences,

Let us now go over the evidence of the Crown to see if that fraudulent combination, that common design which is the root of the charge, has been proved to have existed between the two Defen- : dants. In the first place we have it established that in the year 1887 the Administration, which had just then come into: office, deemed it necessary in the public interest to establish a central stationery bureau through which the different public offices would be supplied with snch stationery as they required. À contract was then prepared by which a Mr. Langlais, a stationer, in good credit and in a large way of business in Quebec, and who had been in the habit of supplying the public offices since 1873, was given the exclu-

sive right to supply this Bureau for ten years. The contract was

not finally executed then, for some reason which is not made per: fectly clear, but Langlais continued his eflorts to get the contract,

had different interviews with the members of the Government, nrg

ing upon them both verbally and in writing the advantages to be derived from the establishment of a central bureau an. from the

prntse of such a contract to à —. Hdiidesl dr vhioh 1e a

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