The Chief Justice was petitioned by the prisoners to be released on bail, but apparently the influence of Walker was so great, that this was not easy. The whole of Montreal was in a great state of irritable excitement, a deputation of the members of the Council, the principal merchants of Montreal and the officers of the Fifteenth, Twenty-seventh, Fifty-second and Royal American Regiments entreated the Chief Justice to grant the petition of the prisoners for bail, asking him to interpose his authority and to mitigate the rigour of the law for gentlemen, “whose honors we are so well convinced, that we offer to become their bail until the trial.”
The petition is signed by the following: Colonel Irving, A. Mabane,[1] Thomas Dunn,[1] J. Goldfrap, F. Mounier, T. Mills, Members of the Council; Thomas Ainslie, Collector of the Customs and Justice of the Peace; J. Marteilhe, J.P.; J. Collins, J.P.; C. Drummond, Comp. of the Customs; J. Porteus, Charles Grant, S. Frazer, J. Woolsey, W. Grant, G. Measam, T. Scott, J. Werden, E. Gray, J. Aitken, Wm. Garett, G. Allsopp, J. Antill, Gridley, H. Boone, J. Watmough, Samuel Jacobs, H. Taylor, F. Grant, S. Lymbery, Amiet, Perras, Dusault, Deplaine, Fleurimont, Fremont, Perrault, Bousseau, Guillemain, Panet, Beaubien, Principal Merchants; La Naudiere, Crois de St. Louis; Captain Grove, Royal Artillery; Colonel Irving, Captain Prescott, Captain-Lieutenant D’Aripe, Lieutenants Mitchel, Lockart, Dunn, Magra, Doctor Roberts, Fifteenth Regiment; Captain Morris, Ensign Winter, Twenty-seventh Regiment; Colonel Jones, Captains Phillips, Williams, Addison, Davidson, Alcock, Geofrey, Lieutenants Neilson, Dinsdale, Smyth, Aderly, Hamilton, Watters, Holland, Hawksley, Adjutant Splain, Ensigns Stubbs, Molesworth, Fifty-second Regiment; Captains Carden, Etherington, Schloser, Tucker, Burin, Rechat, Ensign McKulloch, Royal Americans.
Whatever the whole hubbub was about it was evidently of such importance that the Chief Justice did not see his way to grant the bail, and it was not until two years later that the case came before the Grand Jury in Montreal. Meanwhile the city had been divided in two factions.
On the 28th of February, the cases against all but Captain Disney were thrown out by the Grand Jury,[2] but a true bill was brought against him. This was on a Monday. Francis Masères, who succeeded Suckling as attorney general, prosecuted for the Crown, and Morison, Gregory and Antill defended Town Major Disney.
We may now tell the story in the words of the report of Chief Justice Hey, transmitted to London on his return to Quebec on April 14, 1767.
“The bill against Major Disney being returned on a Monday, I appointed Wednesday for his trial, his Jury, after some few challenges on both sides, was composed of very reputable English merchants residing at Montreal, of very fair characters & as unprejudiced as men could be who had heard so much of so interesting a story.
“The only evidence that affected Major Disney was that of Mr. & Mrs. Walker & Magovock, the substance of which I will take the liberty to state to yr. Lordship as shortly & as truly as my notes & my memory will enable me to do, all the other witnesses speaking to the fact as committed by somebody without any particular knowledge of Major Disney.
“The narrative will perhaps be less perplexed—The house opens with two doors, one a strong one next the street, (within that a sashed one), into the hall where the Family were at supper when the affair began; short on the right hand at the entrance from the street are folding doors which lead into a Parlour, at the further end of which Fronting the Folding doors is ye door of the bed chamber where Mr. Walker keeps his fire arms of which he has great numbers ready loaded. In the hall almost fronting the street doors, are 2 which lead into a kitchen & a back yeard, through which Mrs. Walker & the rest of the family separately made their escape very soon after the entrance of the Ruffians.
“The account which Mr. Walker gave to the Jury upon the trial was that on the 6th of Decr. 1764 at ½ past 8 in the evening Mrs. Walker looked at her watch and said it was time to go to supper—that the cloth was laid in the hall but that he not having been very well that day she was persuading him to stay & eat his supper in the Parlour—that they staid about 10 or 15 minutes in this and other conversation & then went into the hall to supper—that he sat with his back to, & very near the street door—that he had been but a very little time at supper when he heard a rattling of the latch of the door as of Persons wanting to come in in a hurry—that Mrs. Walker said Entre, upon which the outward door was thrown open & thro’ the sash of the inward one he saw a great number of People disguised in various ways, some with little round hats others with their faces blacked, and others with crapes over their faces—that he had time to take so much notice of them as to distinguish 2 Persons whose faces tho’ blacked he was sure he should know again if he saw them—that they burst the inward door & several of them got round to the doors leading to the Parlour as designing to cut off his retreat into that room—that upon turning his head towards that room he received from behind a blow which he believes was given with a broad sword,—that he passed thro’ them into the Parlour receiving many wounds in the passage got to the further end of the room near the chamber door before which stood 2 men who had got before him & prevented his entrance into it—that these 2 with others who had followed him striking and wounding all the way, sett upon him & forced him from the door into window, the curtains of which entangled itself round him and he believes prevented their dashing his brains out against the wall, that he received in the whole no less than 52 contusions besides many cuts with sharp instruments—that he believes during the struggle in the window he was for some little time deprived of his senses, sunk in stupefaction or stunned by some blow, till he heard a voice from the opposite corner of the room say ‘Let me come at him I will dispatch the Villian with my sword’ that this roused him and determined him to sell his life as dear as he could—that ’till this time tho’ he had apprehended & experienced a great deal of violence, he did not think they intended to take away his life because he had seen Major Disney in the outer room & knowing he had done nothing to disoblige him, he did not believe that he would have been amongst them if they had intended to murther him—that he broke from the persons who held him in the window & advanced towards the Part of the room from whence the voice came where 2 persons were standing with their swords in a position ready for making a thrust at him, but does not know whether they actually made a Pass at him or not, that he put by one of their swords with his left hand upon which they both retreated into the corner—that his Eyes at this time being full of blood, he was not capable of distinguishing the features of a face with great accuracy, but from the size & figure & gesture of the person whose sword he parried & from whom he believes the words came, he thought it to be Major Disney—that several of them then seized him at once (one of them in particular taking him up under the right thigh) and carried him towards the fire place with the intention as he believed to throw him upon the fire—that the marks of his bloody fingers were upon the jamb of the chimney—that he turned himself from the fire with great violence & in turning received a blow on his head which the surgeons say must have been given with a Tomahawk—which felled him to the ground & after that a blow upon his Loins which he feels to this day—that then one of them sat or kneeled by him (he lying at his length upon the floor) andeavouring as he imagined to cut his throat—that he resisted it by inclining his head upon his shoulders & putting his hand to the place, a finger of which was cut to the bone—that it was a fortnight before he knew that he had lost his ear, his opinion all along having been that in that operation they intended to cut his throat & believed they had done it—that one of them said the Villian is dead, another Damn him we have done for him, and a third uttered some words but his senses then failed him & he does not recollect what they were.
“This was the whole of the Evidence given by him in Court in the cross-examination great stress was laid upon his positive manner of swearing to Major Disney in disguise upon the transient view which by his own account he had of him, and under the circumstances of terrour and confusion which such an appearance must have occasioned; to which he answered that he had time in the hall before any blow was given to take a distinct view of him, and that he actually did do it, and tho’ it was true he had a crape over his face, yet it was tied so close that he discerned the features and Lineaments of it very perfectly and that he was positive it was Mr. Disney, of his dress other than the crape upon his face he could give no account, and then he was questioned if he had not often declared that he knew nobody but upon slight surprise he said that he remembered Mr. Disney perfectly the next morning, but that he mentioned him to nobody but Mrs. Walker, charging her at the same time to conceal it, because he thought he had suffered by her in discretion in mentioning the name of another Person whose influence with People in Power had prejudiced the inquiry which was then making into the affair.