44 The Fraser River Mines.

bills agst both the prisoners for murder. The Grand Jury made
presentments of 3 public inconveniences :—

1. The practise of carrying offensive weapons on the person,
especially in the neighbourhood of towns.

2. Some arrangement about the permits; goods bought in Vic-
toria and properly paid on and cleared up here are, it appears, subject
to seizure higher up the river after being sold here by importers to
smaller traders, unless these last produce alsn a permit; and

3. The want of a port of entry in the Fraser.

The trial of Jones was ultimately postponed on the application of
Mr. Pearkes.*7 That of Niel was proceeded with. I found it neces-
sary to withdraw from the jury all the capital part of the case: it was
a stidden combat, it appeared, in wch the deceased had fired the first
shot. It occurred in a drinking saloon: gaming was going on: and
arose out of a quarrel about the change for some money, apparently
lost at cards. The jury were partly from the necessity of the case,
partly from the prisoner being entitled to have half foreigners on his
jury ; not necessarily citizens of the U. S., but foreigners of some sort.*8
They were a remarkably intelligent jury. The defendant urged that it
was in self-defence. I charged the jury pretty strongly for man-
slaughter: in fact, it appeared to me a case too clear for them to
require to turn round in their box. They did not, however, come to
a decision until they had been locked up for near 5 hours, and sent for
me twice—once I wrote; once I went in to them. They could not in the
end agree to guilty or not guilty: so at my suggestion, made three
hours before, they at last sent in a special verdict, finding: Ist, that
Niel killed the deced by firing at him; 2nd, that the deceased had
fired at Niel; but that, 3rd, they could not come to any decision on
the evidence whether Niel had retreated as far as he could previously
to firing, wch last finding was not to be wondered at, seeing that not
only was there no evidence that he shewed any unwillingness for the
combat, but that he expressed his readiness: “If that is your game,”
he cried, “I’m in”; and advanced firing bullet after bullet with fatal
precision, drilling the deced at every shot. This amounts to man-
slaughter: the deced (although the jury do not say so) having, on
the evidence, fired the first shot. If Niel had fired the first I shod

have been obliged to let the case go to the jury for wilful murder.*®

(57) George Jones, accused of the murder of H. Wallace at Yale on December 14, 1858. It
was this difficulty in securing the attendance of witnesses in the constantly moving community of
miners that doubtless induced Captain Whannell to arrest them so as to have them available when
required.

(58) By the law as it then stood an alien was entitled to a jury of which one-half were
foreigners; but, as Judge Begbie points out, the necessity of the case would have effected the
same result. See, too, the Jurors Proclamation, March 8, 1860.

(59) This was the case of which Mr. Hicks had written, November 12, 1858, ‘‘ that a more
cool and deliberate murder seldom occurs.’’ See his letter, ante, p. 18, and note (37) thereto.