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Loraque le document est trop grand pour 6tre reproduit en un seul clichi ii est film6 A partir de i'angle supArleur gauche, de gauche A droite, et de haut en bas, en prenant le ncmbre d'images nAcebsaire. Les diagrammes suivants illustrant la m6thode. 1 2 3 1 2 3 4 5 6 TRIALS OF Tlifi (\tm ♦ mrm ^nmtm ui ^mnt0, WHO WERE CAPIUIil^JO AT FORI KKIE, C. W., IN JUNE, \m. KKI'ORTEU BY Kouai: 1?. oRKacr and i^. p. kodljn. TO K ONTO: PRINTED AT TUK LEADKU BTKAM-mtHS, G3 KING 8TRKET K^ST. 1H07. • > • REPORT OF THE TRIALS OF THE FENIAN IMllSONEUS AT TORONTO. Fall Afisizsr^ for the Umted Oounties of York and Peel. ToKONTO, MoikIhv, October 8th, i 8GG. The Court of Oyer and Terminer aiul General Jail Delivery t';r the Unilcd Counties of York and Peel, was opened in this city at noon to-day with the usual forms, His Lordsliip the Hon. Mr. Justice John Wilson being the Judge named in the commission. The SuEiiu'f (F. W. Jarvis, Es(|.,) havin):; called the Grand Jury panel, the following gentlemen answered to their names, and were sworn in as Grand Jurors in the usual manner: — John Boswei.l, Esquire, John Auel, Esquire, James Bailev, '* Tauk'^u Ci;o8uy, " IvlCIIAUD llAMILTO>r, " TiiuMAs Kino, " Thomas Mulhollanu, " John Watson, *' W. A. Walkeu, " John Keesou, *' James JJoilton, " James Guaham, " p. iiowland, " James Medcalfk, " Joel Phillips, Wm. Wells, Thomas Ward, Wm. Kutheubord, " Levi Snidek, Esquire. The Grand Jury choso Mr. John Boswcll as their Foreman. His Lounf.Hii', in the course of his charge to the (irand Jury, said — I am sorry to say I fiml a very long list of about ninety cases of a very unusual character, in which most of the accused are said to be citizens of tlio United States, but a few are alleged TRIALS OF FENIAN PRISON EK8. to be subjects of Great Britain. Tliese cases arose from an armed invasion of tliis Province, which is charged to have taken place in the night between the first and second days ot June last, by an organized forco, computed at between five and six hundred men, who crossed the Niagara river from the State of New York, and landed in this Province about a mile below Fort Erie, and remained there about a day. It is alleged that the prisoners now here were of this expedition, and were captured in that neighborhood, after the principal forces had returned to the State of New York. You are aware, as a matter of history, that for some years a conspiracy has existed in Ireland having for its ol)jcct tlie overthrow of the Queen's Government there, and the establishment of a republican government in its stead. For this purpose illegal associations, called " circles" of the Fenian P)rotherhood were formed, with power indefinitely to increase their numbers. These "circles" were not confined to Ireland, but extended to the United States of America, in which, more especially during the last cpiarter of a century, a vast emigration fro^n Ireland had settled. These emi* grants readily accommodated themselves to the circumstances of that rej)ublic, and by their industry and their numbers have acquired in many of the States both social and political influence • but wherever they have gone, they never forgot their kindred and theii' country. In their new homes they retained with deep devo- tion the memory of her nnisic, her song and her scenery, and have cherished with intense feeling the undefined belief that Ireland had been wronged, and that the blight of the wrong "-till rests upon her. To these people and to those who sympathized with them the chiefs of this conspiracy in Ireland looked for material aid, and it is no matter of surprise^that among such a people, Fenian "circles" should have been formed with great alacrity and success, and that enormous sums should have been contributed for its object. So far as we know, until the end of the late rebellion in the United States, Ireland was the only place where an armed resistance to the British Govern- ment was contemplated. About the period of the close of the civil war a division of the Fenian Brotherhood is said to have taken place. Soon after, it Avas said that one part adhered to the originoi scheme of making war in Ireland — the other to make an CHAROE TO THE GRAND JURY. 5 invasion of the British American Provinces for :wo objects ; one, to make tlicm the base of operations agahist tlie Queen's Govern, ment in Ireland — tlic other to annex one or more of these I'rovinces to the United States. To us, who know well the spirit and temper of our people, the scheme in oither view sseepis visionary and im^ practicable, but it found ready sympathy among that large poi-tion of the American people who think that England acted in bad faith in regard to acknowledging belligerent rights to the Southern Con- federacy, and in allowing those ships to leiivc her ports which that Confederacy commissioned to prey upon the commerce of the United States. With this class, quite apart from the ultimate objects of the Fenian conspiracy, the proposal to invade the Provinces found cordial co-operation, for they hoped that the United States would accord such bcliigerent rights to the invaders as would enable them to commission ships to prey on the com- merce of England just as the South had done upon American commerce. Nor arc the sympathy and co-operation of the Amer- ican people less for a scheme which would annex these Provinces with the States of the Union. The native-born citizen of the United States seems earnestly mipressed Avith the belief that the American type of a republican government is the very best ; he seems to take it for granted that rational liberty- can be enjoyed under no other, and that all nations would eagerly adopt it if they had the opportunity of shaking off the governments which oppress them. He appears to discredit the fact that, under a monarchical government, it is possible to enjoy freedom less trammelled by the tyranny of office and party than under a republican government. He thinks it impossible that here we can really be devoted to our beloved Sovereign and her Government — a Government which ho affects to think is overbearing, perfidious, and envious of the power and greatness of the American nation. Unfortunately for our peace, \/c have been reaping the fruits of these opinions. Some of the really well-meaning of the American people, many of the unthinking, and a vast number of those who entertain the opinions to which I have referred have given their countenance, co-operation and aid to this Fenian Conspiracy. Nor ia it at all improbable that the leaders of the two groat political parties into which the United States is now TRIALS OF FENIAN PRISONERS. divided have countenanced the enterprise which tlioy kncnv cannot be successful — on the one hand to obtain the political support of those engaged in the conspiracy, where it has usually been given ; and on the other hand, to divert it to the other party. Professing, as the American people do, to be a people wlio respect themselves — professing to bo a nation which respects national rights — it seems a matter of amazement tliat this conspiracy, whose objects liave been loudl} proclaimed, has not been frowned upon by the American people and denounced by their press as an atrocity, especially upon us, which has no parallel in ancient or modern times, and as one dangerous to their own peace ; for an organization formed to com- mit atrocities in one place may, by an easy transition, become one to commit outrages in another place, to which its direction may be turned. I mention these things to dispel erroneous opinions respecting the events which underlie ainl surround your enquiries on the present occasion, which for any other purpose would bo out of place here, but they extenuate ratlicr than aggravate the conduct of those men, whose imputed crime will form the subject of your investio-atious. Tiie accused are said to be cliiefly of that young, reckless, unthirtking class, but in part of an older and more depraved one, which are seen in tlie principal cities of the United States, and probably most of them joined this nefarious enterprise with the approbation of those to whom they naturally looked up, as a cause worthy of true manhood, the prosecution of which would yield, at least, excitement, and its consummation applause and renown. These considerations and others which they suggest will, T hope, tone down your minds to judicial calmness in the investigations now to come before yon. Remember, the law presumes these men are innocent, and your duty is to consider them so until, by legal evidence, their guilt appears. They are charged witli having feloniously entered Upper Canada on the first and second days of June last, with intent to levy war ajijainst Her Majesty, and with being found in arms against Her Majesty here. As you will presently see, they might have been tried by militia court-martial, but it is better they should be tried here, by the ordinary course of law, for, oxccpting the late invasions, and the continued threats CHAUaE TO TIIK GRAND JlTRY. 7 of tbeir repetition, we arc ami have been in a state of ])rofoun(] peace Moreover, war, its usages and tribunals, are alien alike to our agricultural and commercial people, who would have been shocked when they reflected upon it, that men should have suffered death npon the scutoncc of a court-martial. The statute against which, it will be charged, they have offended ia the 22 Vic, cap. 98, r. consolidation of the 3 Vic, cap. 12, as amended by the 29 and 30 Vic, cap. 4. It enacts, That in case any person being r. citizen or subject of any foreign state or country at peace with Tier Majesty, bo or continues in arms against Her Majesty within Upper Canada, or commits any act of hostility therein, or enters Upper (!anada with design or intent to levy war against Her Majesty, or to commit any felony therein, for which any person would by the laws of Upper Canada be liable to suffer death, then the Governor may order the assembling of a militia general court-martial for the trial of such persons, agreeably to the militia laws ; and upon being found guilty by such court-martial of offend- ing against this act, such person shall be sentenced by such court- martial to suffer death, or such other punishment as shall be awarded by the court. The second section enacts, That if any subject of Her Majesty within Upper Canada levies war against Her Majesty in company with any of the subjects or citizens of any foreign state or country then at peace with Her Majesty, or enters Upper Canada in com- pany with any sucli subjects or citizens with intent to levy war on iler Majesty, or to commit any such act of felo.iy as aforesaid, or if witlt the design or intent to aid and assist he joins himself to anv person or persons whatsoever, whether subjects or alJous, who have entered Upper Canada with design or intent to levy war on Her Majesty, or to commit any sucli felony within the same, then such subject of Her Majesty may bo tried and punished by a militia court-martial in like maimer as any citizen or subject of a foreign state or country at peace with Her Majesty is liable to be tried and punished. The third gcction enacted, That every citizen or subject of any foreign state or country, who ofiends against the provisions of this act is guilty of felony, and may, notwithstanding the provisions 8 TRIALS OP FENIAN PRISONERS. hereinbefore contained, be prosecuted and tried before any Court of Oyer and Terminer and General Jail Delivery, in and for any county in Upper Canada in the same manner as if the oft'encc had been committed in such county, and upon conviction shall suffer death as a felon. By the act 29 and 30 Vic, cap. 4, the third section just quoted was repealed, and the following is to be taken and read as the third section of the first mentioned act: — Every subject of Iler Majesty and every citizen or subject of any foreign state or country, who has at any time heretofore offended, or who may at any time here- after offend, against the provisions hereinbefore contained, shall be prosecuted and tried before any court of Oyer and Terminer and General Jail Delivery, in and for any cou^ity in Upper Canada in the same manner as if the offence had been committed in such county, and upon conviction shall suffer death as a felon. Now there is nothing in these trials to invobe them in doubt or uncertainty. Tiie simple question is, whether these men or any of them entered or continued in arms within this Province contrary to the provisions of these statutes. In these cases, as in all others where the intent is a material question, it may be proved by declarations of intention, or inferred from acts, lo/ the general principle is that a man intended to do what he has done. The counsel for the Crown must prove to your satisfaction thit war was levied, and men were in arms against Her Majesty, contrary to the statute, and that the parties accused were engaged in it, or associated with those who were. In case they are charged as American citizens there must be evidence which satisfies you that they are such citizens. If they are charged not as American citizens the presumption is, that they are Her Majesty's subjects until the contrary appears ; and it will not probably be denied that they are subjects of Her Majesty. I shall abstain from alluding to what was done after war was levied, for except as affording evidence of intention, it is not the substantive offence charged upon these prisoners, and your feelings ought not be excited by unnecessary detail, lest you bo unfitted for calm enquiry. AERAIOKMENT of PBIS0NEK8. In these cases, ns in all others, the Crown undertakes to bring before you evidence to satisfy you of tlie guilt of every man accused. If it does not, ignore the bills. Do not hesitate a moment. Better for the guilty escape than the innocent suffer; better that no trial take place which would result in acquittal, than that the administra tion of criminal justice should be tarnished with the stain of a con- viction which the law would not sustain. As the good people and true from among whom you come were above the meanness of fear, when in the midst of danger and con- flict, and were ready sternly to defend their homes, and to repel aggression, so now let the foehng of resentment find no place in your mnuls in the enquiries upon which you are about to enter; and thus show that you can administer law in its pure and benign spirit. In this way alone can you acquit yourselves with credit and approbation, in the sight of good men, and satisfy your own consciences in the sight of Him before whom all hearts are open. You will now retire, and I am confident that you will enquire earnestly and seriously into every case submitted to you. The Grand Jury then retired to consider the indictments laid before them by the Crown counsel. October 17th, 1866. The Court opened at half-past nine o'clock this morning. During the course of the day the Grand Jury brought in true bills of indictment against three of the Fenian prisoners incarcerated in the old jail. The names of the prisoners are Robert Blosse Lynch, said to be a colonel in the " Fenian Army,'' from Louisville, Ky. ; David F. Lumsden, who claims to be an Episcopalian clergy- man, of Nunda, N. Y, ; and John McMahon, a Roman Catholic priest, of Anderson, Indiana. Subsequently, the prisoners were arraigned. The prisoner Lynch is a middle-aged, medium-sized man with light greyish hair, moustaclic, and short beard. Lumsden i. rather tall and genteel looking, of dark complexion and straight features, the face being cleanly shaven. He would pass for a respectable man of about thirty-five or forty years of age. The prisoner McMahon is a quiet, wily looking man, with several ugly scars on his face and forehead, of dark complexion, medium height, and of about forty- five years of age. 10 TKI aLS of FENIAN PH1S0NER8. The prisoner Lyncli was first plcaced in the dock, and although o :i somewhat defiant bearing, he listened attentively while the clerk ot the Court, (Mr. \V. A. Campbell,) read tho indictment, ?3 follows : — "Canada, County ot'York. one of the United Counties of York and Peel, to Avit: ■'The Jurors of our Lady the Queen upon their oath present tliat Robert Blosse Lynch, late of Louisville, in the State of Kentucky, in one of the United States of America, and now of the City of To- in>nto, in the County of York aforesaid, being a citizen of a certain foreign state, to wit, tl'O United States of America, at peace with Iler Majesty the Queen, with force and arms, heretofore, to wit, 0:1 the first day of June, in the year of our Lord one thousand eight hundred and sixty-six, and wliiie the said foreign state was so at peace with Her Majesty the Queen, at the Village of Fort Erie, in tho County of Weliand, in that part of the said Province called and being Upper Canada, with divers other evil disposed por;-'>ns whose names are to the Jurors aforesaid unknown, did nnhrvfully and feloniously enter that part of the Province of Canada, called and being Upper ('aiiada, aforesaid, with intent to levy war against her said Majesty the Queen, contrary to the form of the statnle in such case made and provided, and against the peace of our said lady the Queen, her Crown and dignity. " And the Jurors aforesaid, up()n their oath aftircsaiil, do further present that the siiid llobert Blosse Lynch being a citizen of a cerlain foreign state, to wit, the United States of AuKU-ica, at peace with Ifef Majesty the Quern, heretofore, to wit, on the second day of June, in the ycpr of our Lard one thousand eight hundred and sixty-six, and while the saiil foreign state nus so at peace with Jlcr Majesty tiie Qucmmi, with force ar.d arms, in the County of \yelland in tliat part of tin ,iald Province called and being Upi)er Canada having before that tinie ioiued himself to, and '/mg then and there joined to divers other evil disposed persons to the Jun-rs aforesaid unknown, was unlawfully and felonous:!^ in arms against our said lady the Queen, within Upjicr Canada, aforesaid, with intent to levy war against (Uir said lady the ()ueen, contrary to tl«e form of ♦ho statute in such case maile and provided, and against the peace vf our lady the Queen, her Crown ancing, with intent to levy war against our said lady the Queen, against the form of the statute in such case made and provided, and against the pcficc of our said lady the Queen, her Crown and dignity." The Ci.EKii — What say you, prisoner at the bar — are you guilty or not guilty? The PrtisoNEu — Not guilty. The Clkrk — Arc you rer.dy frisoncr) — I think you had better fix is Court those upon which the two former prisonei-s were arraigned, the name of course being different. He also pleaded " not guilty" of the crimes with whicli he was changed in the indictment, and stated that !io was not ready for his tiial, but would be in r. few days. ills Lordship informed the prisoner that the sheriff would forward any letters for him which he desired, and his counsel might also get a copy of the process of the Court without extra charge. Tlie prisoner was then removed. TKIAL OF ROBERT BL0S8E LYNCH. 13 TRIAL OF ROBERT BLOSSE LYNCH. October 24th, 1866. The Court, opened to-day at noon — his lordship the Hon. Justice John Wilson presiding. The court-room was crowded with spectators, who appeared to take niucli interes't in the proceedings, and the space within the bar was filled with nicmbei's of the legal profession. The counsel for the CroAVii were the Solicitor-General for Upper Canada (the lion. James Cockburn, Q. C), the lion. John Hillyard Cameron, Q.C., Mr. Robert A. Harrison, the County Crown Attorney Mr John McXab), Mr. James Patcrson and Mr. Jolm Patcrson ; and for the prisoner Lynch it was understood th.it Mr. R. Martin, with whom was Mr. J. Doyle, had been retained. Mr. Kenneth Mac- Kenzic, Q.C., with whom was Mr. W.B. ^forphy, was present to watch the case on behalf of the American Consul. Ilis LoRDSHir — Do you .ippcar, Mr. Martin, for the prisoner Lyncli ? Mr. Martin — Yes, my lord. His LoHDsnip — Are you ready to proceed with the trial? Mr. Mautin — I believe so, my lord. His Lordship — Arc you gofng to proceed, Mr. Cameron, with the criminal business this morning? Mr. J. H. Cameron — Yes, my lord, we arc prepared to go on with the prisoner Lynch's trial, if hi^ counsel is ready. His L )R8iiip — Mr. McNab, T have received a letter from a prisoner of the name of George WcIIp, informing me that $40 was taken from him at Port Colbornc, for which no receipt was given to him. You will inquire into the matter. Mr. McNau — Yes, my lord. The prisoner P^obcrt Blossc Lynch was then put forward for trial. Ho apppcarod quite unconcerned, but was courteous in his bearing towards the Court. The Clerk then called the names on the petit jury panel. The first called was Abncr 3. (fould, sawyer, of the Township of East Gwillimbury, who wan sworn, as also the second, Joha Clarke, yeo- inrf" u TUIAL8 OF FENIAN PItlSONEfts. man, of York. Tlic third, Ar.drcw Graham, fanner, of Markhatn, was cliallciigcd by Mr. Doyle, on behalf of the prisoner. Henry Norris, yeoman, of Albion, was also challongcd. David Mc- Donald, fanner, of King, was sworn. John Lockic, storekeeper, of Yorkville, was cliallenged. Jolm M. Bair, yeoman, of Scarboro', w.ls sworn. Charles Fry, farmer, of King, was also sworn, as well as the next called, Thomas Marston, farmer, of Markham. James McMa^ter, farmer, of Etobicoke, was challenged. Oliver Lnndy, farmer, of (jrwillimbury, was eworn. James Wadsworth, farmer, of Ktobicokc, was cliallenged. George Howard, blacksmith of Stroetsville ; Wm. Atkinson, carpenter, of Aurora, md Ebenezcr Anthony, farmer, of Chingiiacousy, were also challenged. Roderick McLood, yeoman, of Vanghan, was sworn. Donald Carrie, farmer, of Calodon, was challenged. Alexander Neilson, farmer, of Scar- boro', was next called and the oath was partially administered to him when ho was challenged by Mr. Doyle. Mu. C-VMEnoN remarked that tliis was improper. Mu. Doyle said he had not noticed that the oath was being administered. llis Lordship said he wonld allow tlic challenge if the Crown counsel did not object; but the proceeding was very irregular, and must not occur again. If a juror wore challenged, it must be before any part of the oath was administered. Philip Gower, farmer, of Whitchurch, was then called and tworh. Nathan Ir\yin, farmer, of King, was cliallenged. Robert J. Smith, of Yorkville, was also challenged. George Garrow, farmer, of King; George Granger, fanner, of York; and Wm. Corner, fanner, Georgina, were called in succession, and boing unchallenged, were sworn.* The jurymen empanelled to try the prisoner were, tliercfovc, as follows : — Abncr S. Gould, of East G Wil- li mbury ; John Clarke, of York; Daniel McDonald, of King. John M. Bair, of Scaiboro' ' Charles Fr}', of King ; Wni. Comer, of Georgina. Thomas Marston, of Markham ; Oliver Lundy, of Gwillimbury; Roderick ^IcLeod, of Vanghan ; J'hilip (lower, of Whitchurcli ; George Garrow, of King ; George (jranger, of York ; and ♦TIio rinllcngoi wore made by tho prUoncr'g counicl. The Crown iU is not in this Province they should attempt to carry out their design, that it is not hero their battles should be foutjht, that it is not hero thev should commence acts by which they may hope some day or other to find themselves in a position to demand that redress to which they claim to be entitled. We all know from the history of Ireland within the last three quarters of a century that in chat country there has been discontent, that there have been frequent dilliculties of a more or less serious character, and that there has been a degree of burning hatred towards the government of the Empire which many of us are unable to understand, which we can see no reason for, and which do not in our minds justify the unlawful and seditious acts that many a time liave been attempted in that country. We know that secret societies inimical to the government exist in Ireland, that they have on more than one occasion l.)roken out into open war, and that thoy have been the cause of blood-shed, of ruin and of death to thousands. We know that all these things have been brought about by men whom we raust suppose l)elicved they were right, but who were thoroughly misguided and in some c:uses wickedly designing men. We know that on the last occasion on which these misguided men attempted to gain their ends by force, now nearly twenty years ago, they were in a moment scattered to "the wind, and that the very place where they attempted to stand against the forces of Her Majesty was from that time forth the name for alaughing stock — a name that excited onlycontenq)t and derision. Wo know that since that time amelioration after amelioration has been made in the condition of the people of Ireland. We know that even if there lU'c grievances wliich still remaiti it was not the TRIAL OF ROBERT BLOSSE LYNCH. way to obtain tlicir redress by rising in arms against Her Majesty ; that the vast majority of the people of Ireh'ind, and nearly every man amongst its influential classes, have shown themselves adverse to that laodo of settling their diflBculties ; but we know that there is a rainority who are determined to keep the land in turmoil, heart- burning and bloodshed, and who, as it now appears, are not satis- fied with that, but are determined to extend that state of things to another and a distant land. We know that many of them have come to the neighboring country, where, as in this Province, they have full opportunities of hewing out homes for themselves in the woods, or otherwise earning for themselves an honorable livelihood ; and we know that they hope and dream of Ireland some day be- coming a republic with a republican flag floating over it. But we believed till recently that, having had all the advantages of the institutions which others onjojjed in the land where they deliberately chose to place their lot and that of their children* they would not come to a land lying beride them, the people of which are as anxious as themselves to cultivate all the arts of peace and wish to go on conjointly and quietly with thom in the paths of peace — we did not think, we did not dream, that they who com- plained of oppressive force in their native land Avould come to this country, where perhaps there are some people holding to some extent the same opinions as themselves in regard to the condition of Ireland, and endeavor to force the whole people of this country to forswear the allegiance which they desire to maintain, to bring into their happy homes all the horrors of war and bloodshed, to force them to arm themselves in defence of their firesides and families, and to seek to destroy a form of government and institu- tions of which they arc proud, and which there is jiot one soul amongst them willing to exchange for any other form of govern raent or institutions on earth. Now, gentlemen, you are aware that all these, things are true as matters of history. You all know that all the reasons Avhich may exist on the other side of the Atlantic for disaffection towards the government are no reasons which should have created so gigantic a conspiracy, with objects such as this seems to have, on this side of the Atlantic. We all know that while a friendly refuge and home is off'ered in the United 22 TRIALS OF FENIAN PRIS0NEE8. States to every man who desires to go there, cand while like advan- tages are offered to all who choose to coine to this Province, we did not expect, and until a few years ago we did not know, that men over in that countiy were not only engaged in plotting against Her Majesty and Her Majesty's government on the other side of the Atlantic, but that in the course of their plots they should endeavor to make use of this country as a stepping-stone or means to carry out the object of those plots. For the last few years we have heard* however, that such has been the case. We have heard that a small knot of men have entered into a conspiracy for the purpose of con- verting the kingdom of Ireland, one of the three United Kingdoms, into a republic. We have heard that iis the conspiracy progressed a change by degreesfcame over its designs, and that its ramifications became more extended. We know thac it spread from one section to another of the United States, until at length the rumor went abroad that in almost every state in the Union men were engaged in this vast plot, that large -^ums of money were supplied, and that all the means were prepared which were to bring about an act of hos- tility and violence against the dominions of the Sovereign. All of these preparations pointed to the kingdom of Ireland as the place where action ought to begin and the battle to be fought out ; but after a time attention began to be directed to this country, and we heard that instead of Ireland being made the battle-field, Canada was to be made the scene of the fight, that we were to have in- cursions and raids in every direction, that our peaceful people were to be harried and worried — either to be kept under arms to repel raids or filled with anxiety at home for the safety of those who went out to repel the invaders ; and we could hardly bring ourselves to believe that such a state of things could exist as that we were to be !«o attacked by bands of men crossing the borders of a country with which we were at peace — by men who had no possible cause of quarrel with this country, and who had no complaint whatever to urge against our government and people. In the spring of the present year the rumors of an intended attack took more life than ever before. Day after day, messages, and not only messages but men, came from the United States to inform our Government of the efforts that were being made, and the means employed to organize, for the TEIAL OF ROBERT BL088E LYNCH. 3d attack that was to come. These statements were of different kinds, but all pointed to the probability of a serious inroad into the country. At one moment we were told that we were to be attacked in tlie month of March ; at another that the invasion would be made in April ; and then again that the blow would be struck at the end of May or tlie beginning of June. We were further told that an attack would be made not only in one part of the Province, but in different parts of it at the same time, by anned bands who would seek to obtain a footing in this country ; and that when that footing was once obtained, there would be little doubt that additional forces would come to hold the Province against all the power that might be sent against them. There are many who never believed such a thing could take place, avIio never believed that any body of men could be so mad as to make that attempt, who looked upon tlie whole thing as a delusion, and who never woke up to the fact that it was not a delusion until the alarm actually rang through the Province that those men, who were called Fenians, were amongst us, that they were already over our frontier, that they were carrying fire and sword into our tranquil habitations, and that several of the young men who went out in their vigor and their youth — some of them had hardly yet shed their boy- hood and were but verging upon man's estate — had fallen before tho hostile fire of these bauds. We hardly credited the story at first, but at last the truth was forced upon us. AVe believed that as we were dt peace with the United States, they were under obliga- tion to prevent any such hostfle incursion from their country into ours; that the good faith of their military commanders and their own natural anxiety to prevent an act that might lead to tho most serious consequences, wouid render it impossible for such an in- cursion to be made ; but notwithstsnding this belief, we found that armed men, some of them in the uniform of the United States Army, had crossed over from their shore to ours and had engaged in murderous attacks upon our people. You, gentlemen, know tho history of all that followed — that in a short time our people sprung to arms all over the country, that our volunteers in a few hours turned out in thousands with that spirit which has always influenced them to stand by the government of the country 24 TEIALS OF FENIAN rRIS02,'EE8. to which they belong, that thoy marched forth to the frontier from every direction, and that evcrytliing went to :-ihow those misguided men who came over against us that there was no feeling — not simply in Canada, hut in tli'j whole of British North America — in their favor. You licard of no one who wished to join til' t — no one who dcnircd them success in their lawless undertalving. You heard, it is true, wuiling and lamentation and mourning throughout the land for our dead ; but you heard no expression of sympathy — no, not even from thono few among us who share in their sentiments with regard to Ireland — for the men who came over the frontier to cnrry thist desolation among us. You heard of no effort to aid their ciiterpriso, no one was known to coun. tenancc it in any way ; but on the • t-utrary, one general expression of horror and detestation arose against those who, claiming their right to be free in another part of the world, and to govern them- selves according to their own wishes, came hero to force upon us — a free people in the happy and undisputed exercise of our own political rights, and in the full enjoynient of our own free and liberal institutions — systems and governments and institutions which we repudiate, and which wo will have nothing to do with. It was but a sliort time that those iren remained upon our soil. They speedily found how mistaken they v/oro in their belief that they would be joined by a hu'ge numher of our people, and t^^vt numer- ous reinforcements would come from the United States to aid them. They found that the people of this country would not welcome them except in the v.arm manner in \^ich they forced us to receive t,hem. Tiiey saw, but too late, tiiit the act which thoy had com- mitted was one for which they would bo held responsible to the law of the Province ; and those who had so acted, who hj»d pillaged our bouses and shot down our t'ellow-subjects, were in the enritish justice and in presence of that impartial British tri- bunal which ho and many others like him have so often regardcnl with contempt ; for ho knows, as he sits there, that lie may feel sure of a fair and impartial trial according to the just forms of iiritish law, that nothing will be unjustly or unfairly urged against iiim either in address or evidence be)\/nd that which may properly be deduced from the statements made before the court, and proved on the oath ot credible witnesses; and he may feel, and those who defend him may feel, that there is nothing which the Crown desires, either in the empanelling of the jury or otherwise — and it will have been noticed that it has not exercised Its right of challenging — more than that the prisoner jshail have as fair a trial as any nmn who may bo brought before the court ; that tiierc may bo no prejudices attempted to be raised against hira in the position in which he is placed, although wo cannot banish from our minds the recollection of the cloud and gloom that for a time hung over the country anus to indentify prisoners whom I had been instrumental in arresting. The prisoner is a man m hom I think I could recognize among thousands. When I saw him in camp he wore a hat. Mr. Martin — Where did he wear it ? Witness — On the top of his head in the ordinary manner. (Laughter.) His Lordship — There must be no further merriment of that kind. This is no laughing matter. Witness — Tho prisoner when I saw him had the same moustache and goatee that he wears now, and pretty much the same clothing. I am positive about his wearing a sword. It was an ordinary sword, with an iron or steel scabbard. He was walking up and down the road witli the sword by his side when I addressed him. I appealed to him because Gen. O'Neil was engaged, as I saw by glancing over his shoulder, in examining a map. I see no difference between the prisoner and the man I addressed than perhaps he is now a little lighter in < omplexion. TRIAL OF KOBERT BL0S8E LYNCH. 86 To Hon. Mr. Cameron — 1 conscientiously believe the priisonert<> be the same man. Arthur Molksworth, examined hij Hon. Mr. Cameron— ^i live on the bank of the Niagara river near Fort Erie. I recognize the prisoner as one w^hom I saw with the Fenians on the morning of the 1st of June. Ho was just behind them as they were going up to the village. lie was armed with a sword in a steel scabbard suspended from a belt around his waist. He was talking with a man whom 1 knew lived across the river, and I overheard a portion of the con- versation. This man said to the prisoner that hi» son had joined the Fenians, and that he wanted him to take care of him. Lynch said that he would. The men who were marching were armed with rifles and bayonets. Thoy numbered, I judged, about fifteen hundred, walking four abreast. I saw some of them landing. They came from Black Rock, on the ojyposite side, in the State of New York. They cheered when they landed <>n the C!anada shore, and [ saw two flags waving. I was not in the camp, as they would not allow any one to be about it. Thoy marched into the village before they went into camp. Cross-examined hy Mr. Martin — I knew nothing of the prisoner before seeing him on that occcasion. I saw ofl^icers having uniforni-s, some of them United States uniforms, walking along beside the column. All the ofliccrs I saw had swords, but I did not notice any other distinguishing badges. The prisoner had no uniform. I noticed only three ofliccrs hi uniform, but there may have been others. I think there were oflScers on both sides of the column, but I only saw those on one side. The man with whom the prisoner was talking lives in Black Rock. His name isBailpy. I saw the prisoner only about five minutes, and Avhen he stopped talking with the ui.an he followed after the column. He was dressed in the same way as now. I did not arrest him, but I saw him aiter- wards at the jail. I recognized him then, but I did not know anything about Mr. Newbigging having indentified him. Mr.UoN Cameron — All the witnesses saw the prisoners separately, my lord. They were not allowed to go into the jail together. Witness — I do not notice any diflferencc in his appearance from what it was then. His complexion, moustache and beard are 36 TBIA.L8 OF FENIAN PRISONKKS. about the same. x\inoii|r!; the officers I saw was one who came to our house in want of his breakfast. lie wore a uniform with green binding and had a black moustache. He was about the same size as the prisoner and had pretty much the same complexion, but he was a good deal younger. He was not the chief in command. I was standing close to the prisoner when ho was talking to the man. It was then about eight o'clock in the morning. To Hox, Mr. Camehon — I have :.o doubt in my mind that the prisoner at the bar is the same man I saw that morning, as I saw him very plainly. James Stephens, exa.. Ined hrj the Solicitor General — I reside at Fort Erie and was in tliat neighborhood on the 1st of June last. I sa,w the prisoner there on that day. AVhen I saw liim first he wag on the road getting liis men in line to march. He was armed with a sword, but nothing else that I observed. He seemed to be in command of others. They had taken myself and others prisoners, and when he got his men into line we were ordered by him to fall into the ranks. I was about fifteen or twenty minutes in custody, and was in his presence during tliat time. After he had marched us about three quarters of a mile along the river bank he dismissed us. I did not hear any particular conversation among the men. Some of them were rather sassy. (Lauglitti.) They said they were going to Toronto and Quebec. One of them asked me how far it was across Canada — whether it was twenty miles, and I said I thought it was about seven. (Laughter.) They said they liad come to take Canada, and when they liad done it each of them was to have a good farm. (Renewed laughter.) I saw them all day marching around. I was held as a prisoner all day, with a guard over me and my house. They put a guard on m3 after they came back from the ferry. 1 >'iw only part of the force landing. 1 saw no fighting or acts of violence on Friday, because there was no one to fight with. I saw no fighting on Saturday. I was at home all that day, and I do not know what ground they then occupied. The Solicitor-General — How was it, if you live at Kort Erie, you did not sec the fight at the ferry on Saturday ? TEIAL OF ROBERT BL0S8E LYNCH. 87 Witness — Well, I was not much on my muscle, and 1 did not go to sec it. (Laughter.) I live about a mile and a quarter from the Waterloo ferry, and about the same distance from Newbigging's. Cross-examined by Mr. Mahtin — I saw the Fenians first about day-break when they took me prisoner. I saw the prisoner first about an hour afterwards. He was marching up and down the road talking to his men. I did not see him crossing, and suppose he came over with the main body. I do not know what boat he came in. He must have crossed in some boat, for he could not have waded. (Laughter.) No one seemed to be superior in com- mand to him or to have more to say! Ho had the most " lip" of any of them. (Laughter.) He gave directions to the others and they seemed to obey. Mr. Martin — What movements did you see them execute ? Witness — Well, moving things out of people's houses seemed to be the chief movements they made. (Laughter.) Mr. Martin —You are sure the prisoner is the man who directed tliem ? Witness — Well, if I could see straight, and I think I could, he was the man who put the body in order. He first drew them up in column and tlien gave the order " Forward — March !" and they obeyed him. I do not know where they went after they left me. He had no uniform, but he wore a sword of tlic usual kind with an iron scabbard. After marching about lalf a mile he stopped the body and rested a while. He then again ordered them for- ward, and after going a little more than a quarter of a mile he again halted them. He then came along to where the prisoners were and said — " You individuals there, fall out to the right — you are dismissed !" We fell out as directed, and 1 was very glad of it, for I was not very good on the march. I am sure the prisoner is the same man ; I would know him among a thousand. He is altered a little since then. He is rather faded out and looks slicker. (Laughter.) He was darker and more weather-beaten then, but there is no doubt he is the same man. Thomas MoLESwoRTn,fa:a7ntne(? by Hon. Mr. Cmneron — I reside at Fort Erie, and am the father of the second but last witness. I saw the prisoner on the morning of the 1st of June, and he had arms ■W 88 TRIALS OF FENIAN PEI80NEKS, on him. I saw him on Saturday some time in the forenoon about 11 or 12 o'clock. He spoke to mo. Some said that he w.a8 a Fenian and lie replied that he was a reporter for a paper, and that was the reason he »vas with i'uQm. This conversation took place about the time he was an'csted. I have no doubt this is the tame person I then saw. Cross-examined by Mr. Martin — I got up about daylight and saw the Fenians from my Avindovv landing. They then marched up as far as my house. They came in a body. Some were riding. I remember one was riding. Ap far as I can recollect the man Avho was riding was is uniform. Some straggling ones came to get into my house. When they were marching up to Fort Erie I was ill front of my house. "When I saw them the prisoner, I think, was near the rear end of tlie column. I was inside the gate when they passed. The prisoner had a black felt hat on with a low crov/n. He had a short coat on also. It was about six o'clock on the morning of the 1st of June when he passed my hous?. I could not see whether he was acting as an officer or not. A great number of those who were acting as officers and marching alongside of the column were not in uniform. T do not remember that the prisoner had a sword. I recognized him when he was taken prisoner, as having seen him tha previous day. The prisoner appeared to wear hid board diftereiitly on that day from that which he wears it now. His beard appeared to cover a larger proportion of his face than it does now. His face was browner than it is now. His moustache appeared longer then than now. William Murray, eramined by Mr. Cameron — I have seen the prisoner before. I saw him on Friday, June 1 st, about a mile and a half below Fort Erie. He was standing with seve-al others who were armed. The prisoner had a sword by bis side. I saw him in the afternoon a little down the river in company with some others He was then armed with a sword. T saw them when they landed^ and I then went ti> the telegraph office. I am in the Custom- house. I was j't the fence of the camping ground. They appear ed to be about 900 or 1,000 strong. They were all armed, and liud flags and drums, and bayonets. TRIAL OF ROBERT BL0S8E LYNCH. 39 Ml the ivhalf were Ml tliC others lustom- Cross-examined by Mr. M^^rtin — I live at Fort Erie, and saw the prisoner about nine o'clock at the lower ferry. When they landed first they must have moved to the village and come back again, and then went to Frenchman's creek. The prisoner had a sword, and others had swords also. Tliey were mostly dressed in in black clothes and black hats. T was within fifty feet of them. There were not many middle-aged men like the prisoner. I saw only one other. lie was talking with them. I had no conversation with the prisoner. I saw him next at Frenchman's creek. He Avas talking with another man dressed like himself with a sword and belt. This was during the afternoon of the same day. His hat did not hang over his eyes. It was a black hat, with a stiff brim. He looks n little paler now than he did then. He appearc i to hav^e a larger beard than he wears now. He appeared a little bolder then than he does now. (Laughter.) Major Dixon, examined by Hon. Mr. Cameron — I am an officer in the Queen's Own. I left with the regiment for Port Colborne on the Ist of June and reached there the same dav. Col. Dennis was then in command. I was in command of a company. We were ordered to start on Saturday morning from Port Colborne to meet Col. Peacoekc. We left about five o'clock. We had about 800 men, composed of the Queen's Own, the 1 3th battalion of Hamilton, and the York and Caledonia rifles. We were all in uniform. ITie Queen's Own were in green liniforni ; th*! inih battalion in red tunics, with the ,isual dark trowsers, and the York and Caledon-a companies in rifle uniform. We disombarked at Ridgeway station in order to march. Our march commenced about six o'clock, and we marched about two miles when the leading files of our advanced guards came doul)Iing back. Wo wore all in the road. They put up their rifles with their shakoes oii the bayonet to show that the enemy was in sight. Tlirce companies were then thrown out as skirmishers. Wo advanced some distance when we heard a shot fired. Tlie fire then became general. Ou" men took nossession of a field with stumjjs in it, as they shouhi do to tak« advantage of the cover. It was visible to any one attacking us that we were regular troops. I noticed two men fall about two yards in front of me. I saw some of my men wounded in the field — wounded by „».«i«Hi 40 TEIAL8 OF FENIAN PSTSONERS. those opposed to us. I saw the body opposed to us firing. I saw them through the woods. After a time the Queen's Own retired. Private Whitb, examined btj Hon. Mr. Cameron — I belong to the Queen's Own and was .at Ridgeway. I was wounded in the arm and lost my arm in consequence. T was wounded in the retreat. Adjutant Ottkr, examined by Hon. Mr, Cameron — I am adjutant of the Queen's Own and was at the aff^i." at Ridgeway. I was with the reserve with the commanding oflScer during the greater part of the fight. We marched up to battle in the morning, I saw some of our own men wounded, and one of the 13th, Lieut. Routh. They were wounded by the fire ot the enemy, who must hare known we were Queen's troops. Capt. ScHOFiELD, examined by Hon. Mr. Cameron — On the 2nd of June I was lieutenant in the Welland Battery. We left PortColbome in the morning on the tug Robb and came to Fort Erie, disem- barked, scoured the country, and then came back to Fort Erie. We came iu contact with the enemy about three o'clock in the after- noon in Fort Erie. We had three officers and fifty-four men. Wo were drawn up on Front street with the Dunnville naval brigade. The naval brigade had no uniform. The naval brigade was in front of us, and we saw some men down the river ; then a man raised a white handkerchief and told us to surrender ; then a shot was fired and afterwards a whole volley. Capt. King of the field battery was shot in the leg at the ankle; Lieut. Schofield was shot in the leg; private Bradley was shot in the thigh, and another was ahot in the leg. Our mon retreated and some of them took refuge in a house, and fired on the «nemy. They then threatened to burn us up. Several of us were taken prisoners, and they kept us ti}l about two o'clock in the morning. They said they were going to take the country, and that we wore much mistaken about their number. We were placed in Dr. Kcmpson's drawing-room^ and were guarded by five or »ix men ; and about sixty were stationed *'er the road for three or four hours, Tliern were about «even hundred men in the Fenian army. Crots-txamined by Mr, Maktin — I was principally in company of the adjutant, Fitzpatrick, lie appeared to be about twenty-six years of usit, Si'vcral officers took tea with us. One of them had TRTAL OF ROBERT BL0S8E LYNCH. 41 'OS in man shot field was other took tcncd kept were liout •oom, were ibout had no coat. When I was arrested by the men they took my sword and cross belt, and when being marched to the fort I met Fitz- patrick, who asked me if I were not an officer. I said yes. He then asked me where was my sword and belt. I told him and he brought me back, found the man who had my sword on, made him take it olf and give it to me. 1 saw Dr. Donnelly, a surgeon in the Fenian irmy. He had no arms. Six or seven of the officers took tea with us. The man wlio claimed to be quartermaster had no coat at all. Some o'f the officers appeared young and others quite elderly, I did not see Gen. O'Neil. They told us they had from 800 to 1,260 men at Ridgeway, and that oar forces were v«ry much mistaken as to the force they had — that they had enough to drive our men from their position. When tea wai ready Mrs. Kempson came up and said, " Gentlemen, tea is ready." We rather declined the tea. The Fenian officers then said, " Gentlemen, you had better go down to tea, and if there are any scats left at\er you fill the trble we will tuke seats." We then went first. Tins was the force that was at Ridgeway. They treated ns very well after they got u» into their possession. Hon. Mr. Cameron — Yes, after they had shot your arms and legs off. Thomas Rvali,, one of the Fenian prisoners, examined by Hon. Mr. Cameron. — I was at Fort Erie on the Ist of June last. I came on that day from Bufialo, and crossed over quite early in the morning in a canal boat drawn by a tug. There were a good many on board of the scow. The boat was wfli loadc I down. I walked from Paffalo to Black Rock. Hon. Mr. Cameron — Where did you get your arms? Witness — We got thein in American water. *lON. Mr. Camkron — ^'•, but did you bring them with you, or did you get them after crossing ? WiTNKSH — When we left the land wo had no arms; as wa crossed the river, ai-ms wore given out. We pjot them in American water- Tlie ammunition wus alrea. and went to Col. Peacocke's force. Cross-examineu ,V*r. Martin — I was born in the county of Kerry, Ireland, and uave been in America about a year. McDonnell, of Tennessee, swore me in as a Fenian. I was sworn in on this side, immediately after landing. I do not remember the oath. It was about serving them loyally, or something of that sort. The last was •' So help me God." I did not pay a great deal of attention to the oath. I have turned Queen's evidence. I do not expect to be hanged. I first told one of the turnkeys that I knew something of these men, and I suppose he told Mr. Harrison. I expect to get off for telling ; but do not give my evidence to get oflT. I do not think that it was part of their oath that I was to keep their secrets. I do not remember this being in it. I was in McDoLrell's company. 1 suppose O'Neil was commander. lie was pointed out to mc, and was a young nian with rather light hair. I do not knowtho second in command. He (.ame over about four o'clock in the morning* Some more came after me. I do not know Col. Starr. I do not know Col. Hoy. I know Shields ; he was acting as captain. I do not know Capt. McNally or Col. Bailey. I was in the column formed when thoy landed on this side at daylight. I do not know who marshalled the men. I did not see any man form them in but their captains, 1 never served in a military capacity before. I saw no one except Shields give orders. He wore a felt hat mnd black coat, and had a heavy moustache and revolver. I did not notice whether he TRIAL OP KOBERT BLOfiSE LYNCH. 48 had a sword or not. He was a stout man, about 35 years of age. His moustache was dark. Most of the officers that I saw were dressed in civilians' clothes. One that I saw at Frenchman's creek was not dressed in military dress, nor was it a civilian's. He had on a cloak and high boots. I saw a lieutenant there with a low black hat, who had a broken nose. Mostly all bad black hats and dark clothes. Shields was the oldest man I saw at Ridgeway. At Fort Erie I saw Lynch, and some others as old as Shields. There were a few (one or two) who were as old as the prisoner, and about his age and size, but somewhat taller. I saw two in the lot answering this dcscripton. I saw the prisoner for the first time on the first of June. Ho was at Fort Erie, in the Fenian camp, about 9 o'clock. I cannot tell when he came over. I saw another scow 10 .d come over after us about 7 o'clock. The prisoner, when I saw him first, was walking up and down the Fenian camp near tho arms. This wa? some distance from Fort Erie. I did not notice liim when the men krided, nor when they formed after landing. The firet I saw of him was when we got to Fort Erie. The arms were stacked and the fire lit for dinner when I first saw him. He was dressed in clothes similar to those he has on now. I did not know him at all. I appear against him because 1 saw him there* I do not know anything about any of the others except those in" dited. I know John Meacham ; I slept with him in the jail. I was not sent to sleep with ;hose against whom I was to give evidence. 1 slept with none except Meacham and Foy. I had a conversation with Meachain about giving evidence. He wanted me to go aiid swear against O'Jjonoghue, anrc under very disadvantageous circumstances, and wo are detorti.iiied to do so Id the future. The learned counsel for tho tion went into many particulars of the Fenian society, the ^■cla!H! uul of the Irish in the United States. It was notnocessnr, >r utc nave gone into these matters so fully, though it was very naiiira! that hu should give a history of the whole atfalr. T know well that he intention in doing this was not lo prejucjico you unduly, yet it was tho unavoidable effect ot such a coartc Lo rou^ -^ up any lurkit!rt Erie made all the difference in liis favor, and that the law will be satisfied, and he will be saved from the consccpienccs of the crime charged against him, if it can be shown to your satisfaction that lu^ was tliero as a press reporter. Now, 1 beg to differ altogether from the learned gcntlem m, and to say that there can [be no distinc- tion between members of the press and other persons, and tliat if they choose to accompany an unlawfid band in an enterprise of thi»^ kind, and by their presence and countenance give aid and comfort to any such wicked organization, they becojuc themselves particepa rrimmw, and arc enually witli the others chargeable with all the consequences that may foilow the offence. The law declares that all who arc a.'*scml)lod with rebels in arms against lier Majesty are guilty of treason. It nuittci's not what capacity they assume — no mjittcr whethor they profess t" tight with the pen or with th« sword — if they are present and [give tin* rebels couuten- »nce and oneouragoment they Rve equally guilty with thf»m « TRIAL OF ROBERT BL0S8E ITNCII. 09 even although they never used or carried arms. Now, atler looking at the evidence on both sides, it is somewhat strange that without relying on a single witness called for the Crown, there is evidence to be found, ample evidence, on the other side to convict the prisoner. One of the witnesses called for the defence, O'Malley I think it was, states that the prisoner admitted to him that he came from Louisville with a band of Fenians. Wc have evidence from one or two othei-s of the prisoner's own witnesses to prove that on Friday, the first of June, he was at Fort Eric in company with the Fenians who crossed over from the American side ; and we know — indeed it is not attempted to be denied — that he was there on Saturday, the 2nd of June, that he was arrested there after the Ridge way affair — after that outrage was committed on our people by the band that he accom- panied aero?;, llse frontier. The evidence of these witnesses called for the defence is sufficient alone, without relvinc; on the evidence addur.3d by the Crown, to warrant a conviction. The question for you'c.) consider is, have you f'y reasonable doubt?, in your raindx as to the identity of the prisoner i Do you suppose it possible that there was another man of the same name in that camp, and holding the same rank and authority in the band 3 You know from the first witness called for the Crown, Mr. Xewbigging, that he was directed by some of the Fenians to Colonel Lynch ; that he addressed him as Colonel Lynch; that he did not hesitate to accept that position, or object to being so called, but answered the witnCB* as such ; and that the nuin so addressed and who so answered is the prisoner at the bar. Now, you must cither believe Mr. New- bigging\s evidence or you must reject it. \Va!< there anything in the mode of giving it which leads you for a moment to doubt its truth- fulness ? I do not believe there was. The question then resolves itself into tliis — have you any doubts in your iniads that the prisoner was in company with those who crossed over, and that ho was aiding and abetting them in the accomplishment of the unlaw lul enterprise in which they were engaged? It seems to me that the lacts have been so clearly proved that you cannot hesitate to render k verdict for the Crown. I shall leave the cate in your hauds subject to the charge of his U>rdi»h!p, and satisfied that you knoy> T I c 70 TEIAL8 OF FENIAN PRISONERS. your duty, whether it is a painful duty or not, and that knowing your duty you will do it fearlessly, faithfully and conscientiously. ITis LoRDBiiiP, in charging the jury, said — You must not allow vonr minds to be affected by an idea as to the consequences of what your verdict will lead to. You liave nothing to do with that, and you should disabuse your minds of it as far as possible. Now, this case presents little more difficulty than any ordinary criminal case. The Crown sets up a certain theory sustained by certain facts. That theory and those facts are disputed by the defence. Tlie Crown sets up this — that war was levied by certain unlawfully armed men against Her Majesty ; that ihc prisoner was among those men, either armed like them or giving them countenance or encouragement ; and the Crown moreover undertakes to identify him as one who had command amongst them. The theory of the defence is that the Crown is mistaken in the man ; that he is not the person alleged to have had command, and that he was n t there at the time charged, Tlu* principal witnesses, however, speak of him as being in command. The defence further .says that he is proved to bo a British subject, and not an American citizen as charged in the indictment. Now, with regard to war having been levied, there is the evidence of Mr. Dixon. Mr. White, Mr. Hodder and Mr. Schofield to show you that our troops were there ; that those persons with whom the prisoner is charged with being as- sociated did come in contact with the troops and did kill some of them, did wound others and did take others prisoners ; that they were formed in battle array ; that they marched and wore armed and commanded in military order. These are nil circumstances which, if proved, constitute the offence of levying war and of being unlawfully in arms against Her Majesty. Now, the first question is, has the Crown satisfied you upon that point? Were those persons who were there armed again. ■•t Her Majesty, with intent to do some felonious act — some act calculated to overthrow the government established in this country ? Well, the evidence of those parties who have appeared before you points to that — namely, that those persons referred to were in arms against Her Majesty with intent to levy war. Tliey did everything that the act of levying war can Irad to — they kilietl some, wounded others and I TRIAL OF ROBERT BLOSSE LTNCfl. 71 took prisoncrb of otliers. That is levying war, and those arc all the consequences that the levying of war can give. Now, that is the first point disposed of. The next is was tliis prisoner in command among tliose persons who thus levied war against Ilcr Majesty ? What is the evidence upon that point ? You have first the evidence of Mr. Newbigging, who seems to be a very intelligent man, and who, without any apparent exfiggeration, gave a very clear, straight- forward and distinct account of the attair. He says that those per- sons marched as a body of military men usually marches, although they were not in military uniform, and that they were armed with rifles and bayonets, some of them having swords denoting superior rank among them. They came and pitched their camp in his father's farm, and commenced their warlike operations by taking possession of Avhat lay in their way. They seized three of his father's horses, which fact it was that led him to come do-.vn to the camp and look after thcui. lie says that with a view of getting them to take care of those horses — you can well undcrotand why he should have that anxiety — he went down to the camp to see the person in command, lie says that at +hat time the bridge at Frenchman's Creek as well as the camp was guarded by men who had arms in their hands and who seemed to act as sentries. Ho proves that fact, and his evidence is further proof that they were there in arms contrary to law. He then says that when he reached the camp ae enquired for General O'Neil, who was reported to be chief in command of the body. He was infonned that O'Neil was busy, and that Colonel Hoy was in the camp, but he was referred to Colonel Lynch. Newbigging then went up t.> this person tr> whom he was referred ami aiblrossed liini as (.'oloml I.ync'i without being corrected, and he .'•ays that he liaJ a sword slung from a belt by his side. Now, the principal point in this witness's evidence is whether the person so addressed was the prisoner at the bar. TJie witness .ays the prisoner is th? man, and it is for you to say whether that statement should be received or rejected. Then, there is the cvidoneo ot Arthur Moleswoi fh, who says that he saw the prisoner on the Ist of June early in the nutrning, that he noticed liim particularly because he halted to speak to two men who were there, that it wa.s close by his (the witness's) yard, that he had » rs TRIALS OF FENIAN PHISONERB. i I good opportunity of seeing him, imcl that he had a sword slung by his side in a steel Rcabbard. Young Molcswoith, too, a son of this witness, speaks positively of the prisoner being the person who uas there upon that occasion and arraj'cd in the manner described. He speaks of him as wearing a black folt hat, with a broader brim than those worn here, and a coat which could not be distinguished from that of any civilian. The elder Molcsworth does not speak so positively as the younger, but ho docs say that he lias no doubt the prisoner is the person whom he saw on that occasion. Against these wiuiesses the defence says nothing except that they are mistaken t\s to the man. Then there is the evidence of Stephens^ who says that they took him prisoner at Fort Eric, at which he was not very well pleased, and that the prisoner was the man who made him go into the ranks and who dressed the men into line. Me says further that after he was marched half-a-milc he was dis- missed, and that the prisoner was the one who had charge ©f that part of the force, that ho had a sword by his side, and that at his command they marched forward between eight and nine o'clock in the morning. Next there is the evidence of William Murray, who had two opportunities of seeing the prisoner — iirstin the morn- ing and again in the afternoon — and that on both occasions lie was anued with a sword ; and he says he has no doubt that the prisoner is the man whom he then saw. These, then, gentlemen, are the persons who speak to the identity of the prisoner, and this is the case ^vhich the Crown makes out upon that point. Now, with regard to another point — that of citizenship. The prisoner claims, in the letters which have been read to you, to have come here as an American citizen, and the Crown says it will take him at liis word. The question of law on this point has iu former times led to very serious results. Althcjugh the theory of our law is that a njan who is once ii liritish subject is always a 13ritish subject, the practice has latterly grown up for the Crown not to prevent its sub- jects from becoming citizens of another country or to punish them for throwing otV their allegiance. The Crown allows its subjects tc> become naturalized in anothci' country without prejudice, and so far to relieve themselves from the allegiance they owe as subjects. In this case the Crown then has a right to try the prisoner as a TSIAL OF BOBEBT BLCSSE LTNOH. T8 me iiii mcs lat the mb- loni 9 t(> su !Ct«. IS a British subject, but as he has chosen to throw off his allegiaac^ the Crown says, as it has a right to say — '' Well and good, we will "treat you as r.u American citizen." The prisoner alleges that he did not come to this country to levy war, butfor another and peace- ful purpose ; and it is stated further that he was tot present at the place v.here war was levied at the time when he is alleged to hav%- been seen there by the witnesses for the Crown. To sustain thii^- statement, Cooncy, a cabman, is produced by the defence, wh9 states that on the first of June, at about twelve o'clock, he drovil the prisoner from Buffalo to Black Rock, where he crossed the river. But this statement conflicts with that of another witness, Cormick, also produced by the defence, who says that he saw the prisoner at Fort Erie, between eight and nine o'clock that morning. Now, it appears that either one or the other of these witnesses must be mistaken. If Cormick is right, then his statement corroborates the case for the Crown. If Cooney is right, then his idea as to the time he saw the prisoner in Buffalo is against, not only a witness who is called for the defence, but also against the witnesses for the Crown, who state that they saw the prisoner at Fort Erie, and also saw him marching from there down the river bank, between eight and nine o'clock on the morning of the first. It is for you to say whether you believe the cabman, when he says that h^ drove the prisoner from Buffalo to Black Rock at noon, or, accepting the evidence of the other witnesses, assume that ho is mistaken in making that statement. The defence suggests that the person seen by the tvitnesses for the Crown at Fort Erie was not the prisoner, but some man whose name is unknown, who was called captain, and who i» said to have come from Indianapolis. It is suggested that this man resembles the prisoner, but that the witnesses are mistaken iu assuming it to have been him. You will have to decide whether this theory can be reconciled with the facts testified on oath. Then with regard to the statement that the prisoner was there as a reporter for a newspaper, and that he was seen taking notes without being armed with a sword or otherwise, it will be your duty to consider whether it was not possible for him to have been in com- mand of the invaders, and to hare done the work of a reporter a» well. But supposing that he was there as a reporter, and not boar- T3R TRIALS OF FENIAN PEISOBTIRS. ipg srms^f it is a fact that he was there in furtherance of the object^ of those who were arm6d, if he aided and abetted in the accomplish- ment of their designs, then the law will hold him to be just as guilty as if he actually had arms in his hands. If he was there by accident, as k mere stranger to the others, then it would be very proper to consider Whether it would be fair to charge him in connection with their acts ; but a man can occupy no such equivocal position as that in aaafiitir of that kind. The law will not recognize him as a neutral. If he was there associated with them he became amenable to all the consequences of what they did. If he was there to aid and comfort thiMn in any way whatever— as a spiritual adviser even, or as a medical man, or in any capacity which would give them encourage- ment and assistance, even although he did not bear arms — the law makes no distinction between him or any other who merely assisted about the camp^ and those who actually bore arms and committed aotte of hostility. The law holds all to be equally guUty. I had occ»' sioB at an earlier period of this assizes to explain to the grand jury the law upon this point, and it is perhaps hardly necessary for me no^ to refer dgain so minutely to it. If three or four men conspire togtethor to kill another, and if one of them watches while the others commit the deed, the law holds the one to be just as guilty as they who actually shed the murdered man's blood. Again, if a party of men come together to I'ob a house, and if some of them enter to cotAitiit the robbery, and the others remain outside to give warning, if necessary, those who remain outside are held to be just as guilty of the crime of robbery as those who enter to carry it out. This is the principle of the law in regard to all enterprises of that kind. There can bo no distinction between tho'ie who actually commit the crime and those who, by their preseace and counsel, give aid and encouragement to its commission, A man cannot stand neutral while a nefarious act is being committed. He must either help the perpetrators or ho must dissuade them from the act, and if he cannot dissuade them, he sliould no longer stay there with them, but endeavour to make those acquainted with the matter who would either prevent the commission of the act, or secure the panishmitit of the guilty parties. Well, in this case the prisoner went there, as he says, as a reporter, but if in that capacity he gave ITH^ OF JIOBEST ^LpPSE L-pFCH. •.n countenance and encouragement to the crime, lie cannot e>sy ihti even as a reporter he was there innocently. Those men went there on an unlawful enterprise, and being there with them, the prisoner was either for them or against them, just as the evidence naay tear out. It can hardly be supposed that he was there in an unfriendly attitude to them, but rather to aid them by the statements in regard to their acts which he would make in the newspaper of which he alleges he was a correspondent ; for, does any one beli©r« that they would have allowed him to remain ui tlieir camp if they thought that he was there for a purpose prejudical to themsalves— if, for instance, he was there to report to the government of thi« country the acts which those men were committing ? It is clear that they did not treat him in the sense in which newspaper r-eporters ijsually claim immunity, namely, on the ground that ho intended to report fairly and impartially all that occurred ; for in that case he would have had to make declarations which would not have con- veyed an approval of the proceedings of those men, but would rather have censured them and caused them to desist from their unlawful undertaking. Mr. Martin. — I would call your lordship's attention to the evi - dencc of Whalen, who states that the prisoner dissuaded him from crossing gver into Canada, The Solicitor General. — Yes, but they were both found next morning at Fort Erie. Hon. Mr. Cambbon. — lie evidently did not act on the dissuasion. The SoLi<:!iTOB General. — No, neither himself nor the man dissuaded. His Lordship. — The evidence of Whalen, to which the learned counsel calls my attention, is to this effect : " I remember seeing " prisoner on the first June last at Fort Eric, about one in the after- "noon. He was half a mile from the village. He was walking from "the village. He was walking round. I understood ha was a re- " porter for the Louisville Courier. I saw some of the officers in " command then. I saw no officer resembling the prisoner. I took " notice of his heavy moustache. I did not take notice of his " beard. If his beard had been as large as now I should have noticed " it." On cross-examination Whalen said ; " I was seduced to come ' 1 i Ml . m 78 TBIALS OF FENIAN PRI80NEKS. " over on the Friday and found I was in a bad fix. I asked the advice " of prisoner. He told me to stay till night and get away. He " eftid he had nothing to do with it, only as a reporter. I met with " a'.i accident. I had a minie ball through my neck." If you find that the prisoner was there, although as a reporter, in furtherance of the scheme the band had in view, then he was there aiding the enterprise, just as much, and probably more effectually, than any one who was there in arms. If you find, however, that he was there merely as a spectator, not doing anything wrong, or intending to do it, it may have some weight witli you, even although he did not dissuade the parties from their designs, but you must consider whether in that case he would have been permitted to have gone into their camp and remained along with them. Tt is suggested by the de- fence that this is a case of mistaken indentity — that the prisoner was there in the innocent character of a reporter, and is now mis- taken for one who was in command of those men. Well, it is for you to say from the evidence, whether this suggestion should be iwcepted or not. Persons and things arc i'l lentified by associations of ideas, and although those who speak > indentity may fail in their description of minute marks or signs, yet they may be clear at» to the general appearance of the parson or thing described. Tljis we know is often the case in the ordinary intercourse of lifa, Vour o.vn experience must prove to you that you are often able to identify a thing without having a sufficient knowledge of it lo describe every part correctly. It is for you then to apply that ex- perience in this case, and to determine whether the statements of the witnesses who swear to the prisoner as being the person they saw in command at Fort Erie, are of so probablo ii character as to be received by you with confidence. I now come to the (piostion as to the doubt which may arise in your minds to justify you in acquitting the prisoner. That doubt must be no fanciful idea, founded on some part of the evidence of lesser importance or upon the view you may take of that evidence. It must be a doubt of such a nature that were you to convict the prisoner it would afterwards cause you to feel alarmed as to the justness of your verdict. If the doubt is not a mere passing uncertainty upon some trivial point, but is HuflBciently strong and distinct as would likely be the cause at some TEIAL OF KOBEET BLOSSE LYNCH. rd of loy to on iti .'a, )on ich •ds lie is ns future time of a feeling of uneasiness in regard to your verdict, then it would be a doubt of which you should give the benefit to the prisoner. It has been made a subject of complaint, by counsel for the defence, that application was made and refused to give certain rnrties safe conduct in order that they might come here to give evidence for the prisoner. I cannot see that the complaint is well grounded. I cannot pervert the law in order to tell those {)arties that they might come here without risk of prosecution ; and the Crown cannot allow them to come here without holding them responsible for any acts which might be charged against them, because the Crown also cannot pervert the law to prevent their pro- secution for acts done in violation of the law. It would have been wrong to have deceived those people with the hope that they might have come here free from the risk of prosecution, and therefore it was that 1 spoke plainly and conclusively upon the point when the application was made. I do not think that the counsel for the de- fence has any right to complain because those people were refiiscd safe conduct to appear in this court. Ilis lordship then read over his notes of the evidence, which, he said, he desired tie jury should have placed clearly before them before retiring to consider their ver- dict. It was important that the statement made l>y each witness should be fresh in their memory when they left their box to deliberate. When he read the evidence of the witness Ryle he remarked — The evidence of this witness has been objected to on the ground that he is a notoriously bad character, and his mother has been produced here before you by the defence in order to impeach his vera -ity. He admits himself that he was an accomplice of those men, that he came over with them from IJnffalo, and v,:\< taken prisoner about the same time with the rest, lliis being the case it is not safe perhaps to j)laee much confidence in the statement ho makes in regard to the prisoner, and if you see fit you may throw it out altogether and depend only upon the evidence of the other witnesses. The jury then retired to deliberate upon their rcrdict, and were absent nearly an hour and a half. On returning to the court their names were called over, and The Clerk put the question in the usual form — Gentlemen of the jury, have yon agreed upon your verdict ? . m^ ^ i^m^ i^i^m^&i: 1 1 '11: III I m ^m ',1 is ^^^l^ FQ^j(MAy.-^We J^ave cpme to the ^onisl^Mpp Ihft^ t))(i pr}se»#r Tlb§ v^idijQt haviug bpcii re^o^-^^ oj^ t)^i) ipdjictg[}ent, Th? goLiCiTp^ Cirj|jj|;p^t 89i4=-I jnovp, ipy |pp4, the jiidgweBt pf tj^e pQ»rt pn ^ pri^RPqf <»f ^J^p \\af % % ^rij^g ^f W^lfik h* ^pa b^.ep cpj^vipted, ^is I^BpsfH|p.-rrrR/o|beft B, J^ifch, h^vp you pny tl^|ig to p»y ^hj tUe juclgmenf of th^ cpj^rt 4w^^9 this rroviope. I .state pqyf, j^eforp yoijr lp;"4phiPi the bar, md eM the goijtlenieu present, tji^t I hfwf P^ypr iij any lot oy capapity any part in the raid ; that I came here in the capacity that I represented at the time I carae into tine country ap4 pince ; tji^t J had no idea that I was violating the laws of Canad^ or the neutrality laws of the United States, my own adopted country, and that I ijvas not aware there was any objection tp a reporter following th^ army and reporting for tlie press thp incidpnts and events pf the flption. Had I known that it was an offence I woul4 havp bppn caieful to remain on the other side. With regard to the ipftoner in which th« Grown has conducted tlie prosecution, I must say J think I have been fairly dealt with, and that Mr. Campron ^nd the other gentle- men who have appeared for thp prosecution have actpd very fairly towards me ; an4 1 think I should t^kp ^his ppppytunity of saying so- Jlis Lordship. — Tine reason J asJ^ed you if ypu had anything to say was to give you an oppof^vinity of offering any legal objection* you might have to tiie septpii^je of the Court being passp^ pppn you. The facts of the case i^pop whivelt ari9 np longer open to discussion. The rRisoxKK. — AVith regard to the legal question 1 know nothing, except that I am innocent of tjji? charge of which I am alleged to be gu Ity, and I ple4g:0 psyself bpfow Almighty Qod, before Whom I will appeaf ppBae dajc, th^t I npver savr the witniesp TEIAL OF ROBERT BL088E XTNCH. 81 iy 6B Joseph Stephens, who testified yesterday, till I was brought into his house at the ferry on tlic 2nd of June last. I never spoke to the man or saw him before I was taken prisoner, althougli he has sworn that he spoke to me. The crier of tlio court tlicn proclaimed silence while his lordship passed sentence of death upon the prisoner at the bar. His LoRDSiiii' (who w!is apparently much moved by the painful duty he had to perform) said — I am very sorry to find a man of your age and experience standing where you now stand. You must have seen a good deal of the world ; and you are a man nrt without education and certainly not without intelligence. With regard to the offence of which you have been convicted, the evi- dence is perfectly clear and conclusive that you were there at Fort Erie, not as an unarmed reporter, but with arms and in some kind of command. What that command was does not distinctly a{)- pcar. But if you were there only as a reporter, you would have known, if you had reflected for a moment, that no war had been proclaimed, that there was no war, that the invasion was an atrocious inroad upon this country, and that you were there to report to others who were interested in the success of the unlawful enterprise, and who would gloat and glory over the slain among our people. While a single Avord would have had the effect, or while there was a possibility that it would have had the effect of prejuding your case in the minds of the jury, 1 carefully abstained from uttering it ; but there is no reason now why I should abstain from commenting upon your crime, because every presumption is that you are guilty, and it docs not lie upon me to extenuate your fault or affect not to see it in it^^ present dark light. You and those who were with you profess to have come here to redress the grievances of many centuries and to right the wrongs of an op- pressed people. You alleged that the iron lieel of the Saxon was pressed on the neck of the Celt hundreds of years ago, and that your object was to free your buul from that oppression. If you had reflected you would have seen that you began to do this by at- tempting to inflict upon us the very injuries under which you com- plained your native laud wsus sutferiug. Why should your iron heel be placed upon our necks i In what way did we hurt you that H 82 TRIALS OF FBNIA.N PttlSONEES. i m you should endeavor to do us this grievous^ harm, and why should our homes be made desolate, our young men slain, and our farms pillaged by you? AVill any man of sense answer these plain ques- tions? Was it anything less than murder, was there any possible excuse for you to come here in tlie dead of night, to kill our people, to ravaire our homes and to lav waste our farms and habitations, in ordci, as you say, to relievo the condition of Ireland? What right had you or who could iiave authori 'd any man to commit such a wrong as you perpetrated upon us ? It is putting the matter in a very plain and clear light, just such a light as you must have per- ceived it in if you had thought foi- a moment before going into this mad and wicked entirpiisc. You stand there surrounded by the friends and relations of the :non you f'lew on that oc- casion. If you cimie here as a reporter even, you were not guiltless, because your object was to encourage otners to follow up if the at- tack was successful, or keep them away if the reverse. You could have had no other object liian to slay our peo])lo and destroy our liomes. Mow, looking at it in that light, you cannot be surprised that the law should be enforced and that you should suffci- its dread penalty, as I am very much afraid you will ; for how could we punish the young, iintf fleeting, reckless men who were brought liern by vou and others iike you, who placed confidence in you, ivho put faith in whutyou t>aid — how, 1 say, could avc, in justice, punish thorn if we allowed you the greater criminal to escape? You comi)lain unjustly that, thoso in command of the ag- gressors were uot permitted to come here an 1 testify in your bolialf. Wiiy siiould they be uHowcd to (!ome here ? I endeavored to exi)h'.in to the jury, and you must hav«^ seen it clearly, that I could not pervert the law, and that if the Ciown had jiledged itself to gi\c those nien safe eonduct, the pledge could not have been carried o\it, because, like all otliers who had eo!nmitted crime, they were ninenablc to tiie law. In the course of your trial }i.a have had all the justi;T that could possibly be expected ; you have had the advantage ol a strict observance of all the forms of hvw, and every one abstained from urging too hardly against you t hut which might fairly have been urged. Hut having been Iniw tried and found guilty I would TRIAL OF ROBEST BL0S8E LYNCH. 88 ould rht ore J lavo that snfo like the that f.i a I "lined iliJlVO fail in my duty if I did not point out your crime in its true light, now that I am about sentencing you to appear before a Judge who sees thingji :is they are. It is a very painful thing, the most pain- ful thing that a mpu could be called upon to do, to doom a fellow creature to death ; but the requirements of society whose rules you have outraged urge it upon me and the law of the land demands thatjl should not shrink fr^m the dut\. If I coaid I would. As the luw now stands you might be sentenced to immediate execu- tion. The law puts that discretion in my hands; hut inasmuch as that law was ex post facto a^ to you, T shall certainly not exor- cise any discretion I may have in order to shorten your existence one single hour. And, moreover, as y. ., had a right before that lavr was passed to brir.g into court the whole question ia appeal fro.n the decision of this court, it there was anything wrong in the evidence or improper in the rulings of the court, God forbid that I should deprive you of that opportunity. Yon shall In- dealt with just as the law was when you committed the oticnce ; so that if there has been anything wanting in jnsti(u> during your trial, or if in the opinion of my learned brothel's the evidence does not sustwin the conviction, you will have time and opportunity to appeal against it. If I have received evidence that I ought not to have received, or if I have put a wrong construction upon it in charging the jury, it will bo open to you to complain <>f it; and in order that you may have tlie opportunity of doing so, the execution of the sentence will be delayed till the «'nd of nc\i term, just as if the law had net been passed auJiorizing immediate execution. It now remains for me to pronounce the dread sentence of the law. By the statute; the crime of which you have been found guilty is punishable with death, and I can oxercisc no discretion. The sentence of the court, therefore is, that you, Robert ii. Lyncli, be taken to the place from whcwce you came, and from thence, on Thursday, the 13th of December next, to the place of execution, and that there you be hanged by the neck till you are dead — and may (iod have mercy oa your soul ! The prisoner, who received the sontenc ? of the court with great composure, was then removed. T 84 TRIALS OF FENIAN PRISONERS. TIUAL OF JOHN M'MAHON. Fkiday, October 26, 186 The court, opened at ten o'clock this :>ioniing, and the building- was soon filled l)y an anxious crowd of spectator.s. Mr. Justice John Wilson having taken his seat on the bencli, and the Hon. Mr. Cameron, the Solicitor General and Mr. R. A. Harrison having arrived to cond^ict the case for the Crown, and Mr. M. C. Cameron for the defence, and the other members of the bar engaged by the American Government having also entered tlie court, some prelimi- nary business was disposed of, after which an ordt'r was given to place the Rev. John McMahon in the dock. John McMahou was l)rought into court and placed in the prison- er's dock. He was dressed in a new black coat, cut in clerical style, with black trowsers and vest. He wore around his neck the white band usuallj worn by clergymen of the Roman Catholic church. He was cleanly shaven, and altogether lie presented a respectable appearance, altliough his face and (.'xprcssion were not very intellectual. The Clehk then called the following jurors, who were sworn to try the case : — (ieorge Hutchison, of Albion ; Alexander .Wilson, farmer Jartics McMfwtcr, farmer, of Etobi- coke; Donald Curric, yeoman, of Cale- don; Andrew (Jniliain, farmer, of Miirk- ham ; Ebcnezcr Anthony, fanner, of oi Scarboro' ; Robt. J. Snnth, of Yorkville; James Wadsworth, of Etobicoke ; Natlian Irwin, farmer, of King ; Thomas Jackson, fanner, of Vauglian ; ^yilllam Story, farmer, of Wlute- churoh. Chinguacousy ; Henry Noiris, farnu r, of Albion ; j The Clerk t lien renil tlie ii dictnuMit, the terms of which were similar to the indielmtiil againHt Lyncli, ami to which the primm- fr had pleaded not guilty, and instructed the jury that it whs for them to hearken to the ''videnrc , auii determine whether tlie prisoiuT was guilty or not "uilty. Mr. U, A. Hahhisiun. oil nsiinr ti» open the case for the Crown, TRIAL OF JOHN M'MAHON. 85 of lie* roro i»n- for tlie rnid : — Gentlemen of the jur\' : Tlie prisoner at the bar Is charged with the offences mentioned in the indictment which you have heard read by the clerk of the court. The indictment contains three counts, in each of which he is charged as an Amfcricau citizen. The first count charges liini with having, as an American citizen, entered Upper Canada with certain evil-disposed persons with intent to levy war against her Majesty the Queen ; the second, with having unlawfully continued in arms; and tlie third with being in Canada with other evil-disposed persons, while committing an act of hostility. This indictment was framed under a statute that has been in force in Upper Canada since the year 1840. In that year the legislature of Upper Canada passed an act declaring that in case any person, being a citizen of a foreign state or a subject of a foVeign state, should enter Upper Canada with intent to levy war, and in case he continued in Upper Canada with intent to commit an act of hostility, every such person should be deemed guilty of felony. The same art also provided that subjects of Kcr Majesty, offending undei like circumstances, would also be guilty of the crime of felony. That statute embraced three classes of persons — subjects of a foreign state, citizens of a foreign state, and British subjects or subjects of Her Majesty. The statute provided that subjects of Her Majesty wore liable to be tried for the crimes I have mentioned by court martial, but citizens or subjects of a foreign country so charged might be tried by tlie ordinary tribunals of the country. An act was pa.sso(l during the last scssior of the legislature, not making any now otl'encc whatever, but simply de- claring that in the case of persons who were subjecta of llor Majesty, they might, like citizens of a foreign state, be tried before the ordi- nary tribunals. The act of la«t session created no new offence. Tn that respec', rcforo it is not retrospective. It was made rather in favor of subjects than against them, because it made the ordi- nary mode of trial »|)ply to them the same as to citizens or subjects of a fr»r<»ign state. T make this statement because it has been as- serted that there Idim been ex post facto legislation as to the offence, and I think orronoously assert'^d for the reasons whioh f have men tioned. The prisoner at the l)ar, however, is on his trial charged is an American citizen, and the ft<'t of lust ^iftaion has no refereoce to 86 TEIALB OF FENIAN PKISONERB. him. He is tried under tlic statute of 1840 as it has continued in the statute book from that time to tlie present. In order to consti- tute the offence, and to prove it before the court, it is not neces- sary to show that the prisoner himself, on tlic occasion referred to, was actually in arms. It is enough to show that a body of armed men entered the Province with hostile intent, and that while they were here the prisoner was among them aiding them or encourag- ing them. Now, so far as the prisoner himself is concerned, the evidence that will be submitted to you will show that on the oc- casion of the landing of the men called Fenians at Fort Erie, or shortly after their landing, he was amongst them ; that he was ap- parently acting as chaplain to the force, and tbere will also be evidence that will go to show not merely that he was acting as chaplain of the force, but that he was actually armed, and appar- ently acting as a commander. It will bo shown that he was intimate with the officers who appeared to have supreme control, and that he exercised more than the ordinary control amongst the men. If these facts be shown to you, gentlemen, they will have a strong tendency to lead your minds to the conviction that the prisoner is guilty. AVhat excuse he may offer in explanation of his presence and conduct there I do not know. I intend to make no reference whutcvcr to the circumstances attending the landing of the body of men calling themselves Fenians at Fort Erie. My learned friend, Mr. Cameron, who opened the last case tried, and whose address you probably heard, so fully referred to those cir- cumstances that it is unnecessary for mo again to 8|)eak of them. 1 have now briefly stated to you the nature of the charges against the prisoner, and the nature of the evidence that will bo adducfed in support of the charges. I would add that so far jh the counsel for the Crown are concerned, their desire is that the prisoner — who I believe is a priest in holy orders — shall recei\e a f»ir and impar- tial trial. It is not our business or iaclination to {)re!is the case un- duly against him. Our aim is simply to bring before you the evi- dence which, in the opinion of the Crown, points to his guilt, and leave it to you to say whether or not you are sutisiicd that it es- tablishes guilt. If after hearing it you have any reasonable doubt of bis guiU, of course it will be your duty to give the prisoner th* T TEIAL OF JOHN M MAHON. 87 benefit of that doubt, and acquit him. John Wrat was then called as the first witness for the Crown. Mr. M. C. Cameron — Is the name of this witness on the back of the indictment? Mr. Harrison —No, it is not. Mr. Wray was in court and identified the prisoner, and I now call him to give evidence. Mr. M. ('. Cameron — I submit, my lord, that as this witness's name is not entered on the buck of the indictment, he is not a com- petent witness. His LoHDSHip — I suppose tlic name can be put on. Mr. M. C. Cameron — I submit, my lord, that in a case of this kind it cannot. As I nnderptand it, it is a charge of the same character as the charge of treason, in which case, as counsel for the accused, F am entitled to know the names of all the witnesses before the trial. The indictment in this case, with the names of the witnesses endorsed ui)on it, has been sent to me, but this man's name does not appear, and I have had no intimation that he would be called. Mr. Harrison — If le offence charged were treason, my lord, my learned friend would be right. It is not treason, however, but a statutable felony, and T think we have a right now, .''.sin other cases of felony, to put the witness's name on the indi' tment. His Lordship — So I think. Mr. M. C. Camkuon — Will your lordsliip have the kindness to note the objection ? His LoRUHiup accordingly wrote down the objection, with his ruling that the evidence was admissibk', and addi'd tlia*^ the objec- tion had been taken after the witness had been swor;:. Mis lord ship then read the note ho had made, wherpupon Mr. M. C. Cameron replied — \'es, my lord, but that docs not prevent the evidence of the witness being declared inadmissible. Mr. Harrison then proceeded with the examitiatinn of the wit Tiess. WiTNKHs (John Wray) suid — I live at Kort Krif, and wuh thrre on the first of June last. 1 recognize the pri-^oner at the bar. I «»w him at Fort Erie on that day. The Fenians landed on that day about a miio and a half below Fort Erie, and the prisoner wa« 8B TRIALS OF FENIAN PRISONERS. amongst thom. There were eight or nine hundred of them. Most of them were armed ; but the prisoner had no arms. He "was dressed in black clothes, and wore a black plug hat. It was about eight o'clock in the forenoon when T saw him. The Fenians, after landing, marched up through tlie Tillage and halted within sixty feet of my house, for the purpose of taking breakfast. Some of them came into my house to take breakfast. They remained on the green a couple of hours. When they took their departure some of them left their valises behind them, but the prisoner ordered those who remained behind to pick them up. Mr. Harrison — Who gave the order ? WiTNSss — The gentleman at the bar, sir. His Lordship — What did he order them to do? Wit»;ess — To pick up the valises. He said " the boys may " want them, as we don't know how long we may have to stop in " Canada." They took up the valises, as commanded, and the prisoner went oft with the main body. I saw the prisoner again on Saturday evening after we had the tight with the Fenians. Mr. Harrison — Who were engaged in the fight? Witness — The Fenians and a few of our volunteers who were there. Some of our men were wounded, but I did not see much of the fight, as the Fenians had taken mo prisoner on that day. The Fenians seemed to liave come from the direct'on of Ridge- way. T wiis a prisoner in their hands when I saw the prisoner at the bar. He was supporting u wounded Fenian or dressing a wound on the road. I believed the wounded man to be a Fenian, as he was not dressed in the uniform of our men. 1 did not hear the prisoner say anything to th; wounded man. The next time I saw the prisoner was on the following Sunday, when he was brought down to the village a prisoner by the volunteers. I know that at that time the government of the Queen and tiiat of the United States were at peace. Crosii-e.Tamlned by Mr. M. C Cameron — ''"here were two ferries across the river: the railway and the general ferry. When I first saw the prisoner about a mile and a half from where the Fenians landed he carried a small satchel. I did not speak to him. When tlu! Fenians went away from my place perhaps about half a oii (jiuteiiiro the prisoner h ihe «am# man that you :»aw on tliat oeeasiou i Witness — I am quite positive he is the same muti. Ai-EXANDEP, WiLLcox was Hext cdicd as a witness. Mr. M. C Cameron' made the same objection to this witne.ss a* he had made to the last — his n. iiu' not beiufj on tlie ba<'k of thfe indictment. His Lordship uot(\i this objection also, and sugg'ested lo the Crown counsel the propriety of entering the names on the back of the indictment. Mr. M. 0. Cameron — These witncises, uiy lord, have not been put out ot court. Mr. IIariiison — The witnesses who arc iji court came from l^^crt Erie, and have identified the prisoner as stated by the last witness. Mr. M. C, Cameron — Will your lordship be kind enouo;h to note that this objection was also taken before the witness wivi sworn His LouDSHir — Certainly. Mr. Uarkibon then jtroceeded with the examination. Witness said — I live at Fort Erie. I remember the morning of the first of June lasit. i >.iw tln^ j)riponer on that day at Fort Erie. He was (*tandin[j( talking to the Fenians who remained be- hind aft'cT the main body had left. 1 saw some satchels there, and the prisoner was trying to get thi' men to carry them to the main body. He said it v.'an too bad to leave them behind, a$ the boys Plight want tliem and thf clothes tiioy containfd. I did not hear him say anythinar mure i.nd 1 did not see him ajfaiu. Mr. M, C Camkhov — You saw no tire-anus about him, [suppose; VViTNESH — No sir, 1 did not. Mr. M. C. Camkron— Tl.at will do, Mr. Willcox. Ai.KXAKnKP, MiLLioiV. rraminrd ftv (ff >^oliriior (hntrnl — ■^!^5SS 90 TRIAL OF FENTAN PRISJOITERS. I live at Fort Eric. I saw a considerable number of armed men there on the first of June last. I saw them about five o'clock in the morning, goon after they landed. I saw the prisoner at the bar amongst them. There was a lot of them in a tavern and the prisoner came in as if to induce them to leave it. lie told tlicm to take care what they were doing, but I did uothear him say anything else in particular. He was dressed in black, and had a revolver suspended from a belt by his side. I think he only told the men to take care of themselves. I had some conversation with the prisoner. He said we should not be fright- ened, as the Feoians had not come to hann any civilians. Seme of his companions said they wanted to see the red-coats, and he added : " Yes, it is the red-coats we want to see." The reeve ordered breakfast for them, because General O'Neill said if it were not provided he would ransack the place. The prisoner said they did not intend to remain there very long. The Solicitor General — Did you hear them say that they were ffoino- to advance into the countrv ? Mr. M. C. Cameuon — I object to that, it is a leading question. Witness — I did not hear him say anvthing about their dtsio-ns. Crons-examlned hij Mr. M. C Cameron — The tavern I spoke of IS kept by one Barney McXaney. I keep house in Fort Erie and live about fifiy yards from the tavern. I was aioused that morning by a woman living next door. I looked out at the back door and saw the Fenians drawn up on the green near the school-house. I got my family up and dressed, and got them over to Buffalo as soon as possible. The ferry-boats were running then. After rous- ing the family 1 went out among the Fenians, going out by the front door and then passing around to the back of my lot. I re- mained witii thorn about a quarter of an hour. I til en went back to the house and remained not many minutes, when I went to the tavern. T returned to the house at internals, but did not make much preparation for leaving. It was, I think, between fi\e and six o'clock when I was in McXaney 's (avcm, which is quite close to tlie green, perhaps not more than ten yards from it. Therf vkCVv^ soTon or eight Fenians in the tavern, and several went in along with me. I spoke to them and diank with them. TRIAL OP JOHN m'mAHON. 91 Mr. Cameron- you did not seem afraid of tliem, but mixed with them in a very friendly manner then ? Witness— I waa as social as possible with them. (Laughter.) Mr. CAMERON—Come, now, did you treat them ? WiTNEss-I offered to do so, but they refused, saying that they would treat, as they could afford it better than me. (Laughter.) ' Mr. Cameron— Did you take anything ? Witness— Yes, three or four glasses. Mr. CAMERON—Can you usually stand three or four « bonis" in the morning before breakfast ? (Laughter.) Witness — Yes. Mr. Cameron— How many do you think vou could stand i WiTNESS-Well, I think I might stand about a dozen if I were put to it. (Laughter.) I remained there with them on and ofT till about nine o'clock. It was some time in the forenoon when I got my family off. I was not thinking particularly abr^ut the time The Fenians put a guard on the place. I judge so because they walked up and down vrith guns and bayonets, which was not very usual in the village. I was at the door of the tavern talking to some of the men when I first saw the prisoner. Mr. Cameron— How many were with you at the door? Witness— Not a great m.my- only three or Ibur that I knew. Mr. Cameron— Where did you ever see them before? WiTNESs-I saw some of them in Buffido, and others in Toronto years before. Mr. Camekon— y/ell, what did the prisoner say when he came up ? Witness -He told his companions to keep quiet and take care of themselves. Mr. Cameron— \^%re they making a noise at this time that they needed this caution ? Witness — No. Mr. Cameron— And you say that he had arms when he came up to the tavern ? Witness— Yes, he had a revolver, and I think he hud a bolt, though I am not sure about that. Mr. Cameron — But the last witness said he had no arms. Mr. Harrison— Oh, that was two or three houifj nfterwards. ?B wmmm 92 TRIALS OF FJSKIAI^ FEI30NKK9. li^ when tlie other witness saw him in the village. Mr. Camkron — It was in the villasfe this witness saw liim, fW midei-%taiid him ? WiTKKSs — Yes, it was in the village. I saw the Fenians jyo awav. They dl left in a body except those that remained as jentries. They all st Ml. CiMEKOJT — But you iiav? saia inai you axa Know some them — some whom you were supposed to treat, you remember? What time elapsed between the time you first saw the prisoner and the secoiid ? Witness — It might be about a quarter of an liour. Mr. Cameron — And what time did the Fenians move away from the village ? AViTNESs — I cannot say exactly, but I think it was about nine or ten o'clock. It was about five o'clock in the morning that I first iaw the prisoner, and between five and six o'clock when I saw him the second time. I cannot speak exactly as to the time. 1 was at home the previous night, but not all tlie evening. I was in Mc- Xancy's saloon, I think, that night. I wont there between eight and nine o'clock, I expect, and left between ten and eleven. I did not hear then that the Fenians were likely to come over, and I did not expect that they would. I did not know then that they were gathering at Buffalo, and I h'^ard nothing said about them. I might have Inid a glass of beer there, but I am '^uite sure I had not halt-a-dozeii. 1 do not recollect drinking at all that night, but I will not swear that I was not drinking. I went to the saloon principally to see a game of billiards. I think I was in bed that night by eleven o'clock. I did not go home with anyone from McNancy's. Those who were in the tavern when I left were pretty much people who belonged to the village. I think Joseph Squire was there when I loft. I was not speaking to him particularly when I left. Two men named Thomas and Fairchilds were playing billiards when I went in. I was told just when I quit work that they were going to play that night. I think it was about five o'clock when 1 got up next morning. 1 took four or five '* horns" between then and nine o'clock, but I am quite sure I was not drunk. Mr. Cameron — You are quite sure your vision was not obscured by what you drank ? Witness — Yes, quite sure. I saw some of the residents of tho place that morning near my house and all around about town* Among others I saw Pat Mocney and a man named Fiskette. Mooney was shouting at my door to come out and ^ee the harp of SMAGE EVALUATION TEST TARGET (MT-3) A, ?- ■^ ^ ^r y 5r mC/. //y ^ 1.0 III! i.l S.-i u Its fflll Itt M 12.0 llili !l.8 I 1-25 14 1 1.6 1 — 1 III ==r= ^ _ 6" !>■ /a A ^^■ i^. ^> ^5 C"^^/ PkotogTtiphic Sciences Corpordtion 33 WIST MAIN STRUT WIBSTfRNY I4SI0 (714) •rr4S03 io w?r :$ 94 TRIALS OF FBNIAK PBIdONEBS. ^1^ old Ireland raised in Canada. I saw Mooney before 1 saw tbe prisoner. Mr. Camfron — Now sir, I believe you bave been employed in inducing soldiers to desert. Witness — (energetically) — I never bave. 1 deny it. Mr. Cameron — You did not leave tbe country for anything of tbat kind, then ? Witness — No, not for tbat. Mr. Cameron — It was f^r somctbing else tben ? Tbe Witness declined answering. Mr. Cameron — Did you see a belt worn by tbe prisoner '( Witness — I am not exactly sure about t'le belt worn by the pri&oner. He carried tbe revolve'' near bis breast outside of bi'j coat, so tliat anybody could see it. It wa? a good-sized revolver, but I don't know wbat kind. Examined bi/ the Solicitor-General — I first saw tbe prisoner between five and six o'clock. He told t'rie men to take care of themselves and keep rigbt. I ^aw tbe revay ♦hem for it The boys then came to sliore, and as the bf)at was too small, one of the boys remained on shore, and Mr. McMahon and his companions got into the boat. After the boat wat. i)ushed from shore I heard one of them say '• Father, you had " better take tliU Beat," meaning the stern seal, which was the most comfortable in the boat. It wns rowed up the river with the 1^ I 'it n I! 0^' ir TRIAL* OF FENIAN PRiSOnEBS. intention of crossing to Black Rock dam or North Buffalo? 'f^' thought from the prisoner's dress that he wjis a chaplain. His dresfi was ahout the same as it is now but the coat was not so gen- teel. The hat w.-is rery much worn. 1 did not see him afterwards till I saw him in Toronto jail. All I saw of him that day was when he was going up the road and in the hnat. (7ross-i'^-amined bi/ "Mr. M. 0. CaMerox — I saw no arms in th^ " boat in which the prisoner was. Charles Treble sworn : Mr. M. C. Camkron — The same objection is also made to this witness, my lord. His name is not on the list. His LouDsnip — -I will note the objection. Witness, exnmincd hij Mr Harrison — I live at Fort Erie. 1 was there on the first of June last. 7 think I saw the prisoner theic, but I am not positive as to his identity. I think I saw him on thb 2nd of June, in the afternoon, on "Walnut street. It was after llic engagement:, but how long I can scarcely say. He was walking up the street alone. I was under the impression from his appearance — from his uress — that he was a priest. He had on a long coat such as is usually worn by priests. T could not swear that the prisoner is the same person that 1 saw then. Mr. M. C. Camkrok — That will do, Mr, Treble. Georok McMuRRicn, examined by Mr. Harrison — 1 urn a cap- tain "n the Tenth Royal Regiment. I was at Fort Krio on Sunday, after the battle at Ridgoway. 1 saw the prisoner at a house about ten minutes walk from Fort Erie. He as at the house of a "Major'* Cantie. Cantie was said to be a Major in the Fjniai army, [t was about nine o'clock in the moming wlien I saw the prisoner. A number of our men were with me. Dr. Jamioson, of the 47th regiment, and several others were presetit. Lieut. Dawson asked mo to go over to Cj!nlie*s house in search of a wounded Fenian whom he heard wjis there. The prisoner \sm stunding in the door when we got to tl>e house. Dr. Jamicson asked him wliero he came from, and he replied from the States — somewhere. Dr. Jamicson wiw for letting him go, but I thought it l)cst to place him under arrest, and T did so and placed a squad over him. He said bo cRiue th' re for the purpose of burying the dead. He said h« TRIAL OF JOHN M MAHON. 97 If was in Buftalo and having heard that th«ro wore some dead men at Fort Erie he came over to bury them and perform his duty. He said he was on his way to Montreal to see the bishop. We found a dead Fenian, a Lieutenant Donaghan, in the barn ; he was on his back on a stretcher. We found a wounded Foniau in the hay loft. Tlie prisoner said he did not know that there were any Fenians at the house. He seemed to know there were some dead uien there. We found another dead man near the house, in a work-shop. I then sent the prisoner io the 47th regimeut. Cross-examined by Mr. M. C. Camkron — I was in the house only for a moment or two and did not hear the prisoner make the state- ment he is said to have made about not knowing that any of the Fenians were at Cantie's house. \ heard him say he liad no connec- tion with the Fenians. 1 saw cross-'oeUs in the cellar. They ap- peared to have been thrown down suddenly. I vent into anotlier room and found a sick woman and a young baby there. John Ridoi't, examined hij Mr. Harrison — 1 saw tlie prisoner at Major Cantie's house on the garrison road near Fort Eric. 'Jlie company I was with were out skirmishing, and Lieutenant Daw- ton, wlio was acting major, told us to go over and see if tliere was a wounded man at the liouse, I went over with othars, and asked the parties at the house if there were any Fenians there, and they said no, there were none. I went into the <>ellar and'found some cross belts and coats of t)»e 13th battalion on the floor, as if they had been thrown dowi in a hurry. I then went to the back part of tlie house, and in a dark room found a dead Fenian. 1 also went up on the lott to examine it for Fenians, and a man named Kyler jumped uj) and asked mc not to shoot him. I said 1 would n«t if he would come down. Cross-examined by Mr. M. C. Cameron — ^I'he prisoner told us he did rot know whether there were any Fenians at the house. I fonn . a bayonet and shako under a mattress. Tins was said to be a Fenian neighborhood. Examined by Mr. Hakuison — When I saw the prisoner in the jail he diil not deny having been with the Fonians. DtNNis SrLLivAN swom : Mr. M. C Gamrrox — I also object to tliis witness, my lord, fur i 08 TRIALS OF FENIAN PEISONEfid. •r^ the same reasons given with regard to the others. His Lordship — I will note the objection. Witness, examined by Hon. Mr. Cameron — I belong to the Royal Canadian rifles, and have been one of the look-out party for two years at Fort Erie. I saw Jeremiah Cantie with the Fenians, near the lower forry, on the 1st of June. He had a six-barrelled revolver in his possession. When the Fenians left Cantie left alio. John Medcalf swora : Mr. M. C. Cameron — I also object to this witness, my lord. His Lordship — I will note the objection. Witness, examined by Mr. Harrison — I belong to the Queen's Own, and was with the regiment at Ridgcway. I am employed in the sheriffs office in this city. The battle took place a little beyond Ridgcway. The volunteers were attacked by the Fenians. I saw Ensign McEachren lying dying, and another man was shot by my side. I'lie shots came from the Fenians. I saw the prisoner for the first time in jail in this city, and T told him that Avhat he might say to me would be used against him. I held out no threat nor hope. The conversation we had was to the eft'ect that he was a Roman Catholic priest, was born in the county of Monaghan, Ire- land, and that he came over from Buffalo on the Ist of June. He said he was a citizen of the United States, and resided in Maddison, Indiana. He said when he got to Fort Erie the Fenians took his hat and cloak from hlia and compelled him to go to Ridgcway to act as chaplain for them ; aud that he was within about half a mile of the battlefield ; that hr attended to the wants of the Avoundedby binding up the wounds of both the Fenians and British. Ho said he heard the confessions of five woun'^:.d Fenians who died on Saturday. He said he attended to the wants of the Fenians and British indiscriminately. Several Fenians were killed, he said, but he could not tell the number. Four were killed at Fort Erie ; he said that Col. Bailey of the Fenians was mortally wounded, having received three balls in his body. He told me that when he was ar- rested a list of some boys he wished to send to a Mr. Vaughan ^sm found on his person, but that there was no list of a Fenian company found on him. He said ho had some pistol bullets of his own and •lugs which he picked up at Fort Erie. He had some wafers un- t TRIAL OF JOHN M MAHON. 99 UD- consecrated, some oils and a bottle of peppermint. IB.^ said h* had no arms of any description, and that he was no Fenian. Crosi-ixamined by Mr. M. C. Cameron — lie told me all this at one converbation. He told it first to D. C. McNab. The latter asked him if he had any statement to make, and what he stated was taken down in writing. He stated all along that the Fenians orced hira to go with them in his spiritual capacity and as a medi- cal adviser also. The battle took place on the 2nd of June. T was not wounded. I went down to Fort Erie on Monday. Edward Hodder sworn : Mr. M. C. Cameron — The same objection to Mr. Hodder, my lord. Witness, examined by Mr. Harrison — I am not in the Qucm'r Own. I saw the prisoner at Mrjor Cantic's house, near Fort Erie. I was going along the road with some others, and we heard that the?* was a woiiuded F'inian in a house near by. Dr. Jamieson asked for a volunteer to assist him, and I volunteered. The house was outside the skirmish line and the doctor asked for h guard. Lieut. Davidson sent a corporal and a guard with us, Wlien we got near the house, the prisoner was at the door, but he went in when wt approached. Dr. Jamieson asked the prisoner wh.it i.e was doing there. He said ho came from Buffal© and was on his way to Mon- treal, that somebody had stolen' his vestments, and that he was waiting to get more. Dr. Jamieson asked mc what I thought of the story, and I said I thought it very unlikely. Dr. Jamieson then spoke to Captain McMurrich, and the prisontr was arrested. The prisoner was asked where the wounded man was, and ho denied all knowlcdgccf Fenians, A woman and a young girl whom we saw at the house also denied any knowledge of them. A wounded man and a dead man were then found there, however. I found one in the barn behind the houHo. Crosi-ermnined by Mr. M. ('. Camkrun — Dr. Jamieson askad if there were anv F-Miians there, and *he prisoner said no. That is the answer ho gave Dr. Jamieson. When we were going up to the house ho was near the door, and when we came close up he went inside the Hoor. He told Dr. Jamieson that ho had come from Euti'alo ; that he was going to Montreal, that somebody hft'l stolen his vestroonts, and that he vim waiting for more. I did 100 TRIALS OF FENIAN PJilSONERS. I ! 4. & not hear him tell Capt . McMurrich that he understood there was a dead Fenian there, and that he had come to bury him. There wefe two women and a young girl in the house, all of whom denied that there were Fenir.ns there. To my reoollcction the prisoner said — " There is no .such man here," when we asked for a wounded man. After the prisoner told his story, Dr. Jamieson asked him — " What are you doing here ?" . We were then ordered to surround the house, and I went to the barn, and upon looking through a broken }»oard I saw a dead Fenian. I the n went back to tell Dr. Jamieson, and upon returning found our own men there. Dr. Jamieson found a pocket-book and some papers in the dead man's pockets. Mr Ridout found a wounded Fenian in the loft. The prisoner, when asked if there was a wounded Fenian there, said there was none. Dr. Jamieson found a song in the dead man's pocket, which he admired. Some of the words were — the shamrock shall grow no more in Ireland. Wm. Crump sworn : Mr. M. C. Cameron — 1 object to this wituess, my lord. His name is not on the list. His Lordship — i will note the objection. Witness, examined bi/ Mr. Hdrrison — 1 have seen the prisoner at the bar before, in the latter part of last month in Toronto jail. He told me he came over with the Fenians to dress their wounds. In the first place Jie said to me, '' do you rec(>gnize me ?" When 1 said I did not, he seemed very pleasant, and said what I have stated now i.: court. I think that is about all he said. In the first place I saw the prisoner and half a dozen Fenians praying, and 1 did not want to disturb them. (Laughter.) T afterwards came back, and the prisoner spoke to me. Cross-examined bi/ Mr. M. C. Cameron — Mr. Cameron — Well, Mr. Crump, what brought \on to tlic jail .' Witness — I went there to see the prisoners. Mr. Cameron — To see tlie prisoners, eh ' Was that all i Witness — Well, 1 went tliero to gratify my curiosity, and I thought if I could benefit my country it would be of use for me to go. I was passing the cell door when several of the Fenians were at prayer, and wlien th*^ pri«.oner got up from his knees he Hsko(l TBIAL OF JOHN m'mAHOIT. 101 rae if I recognized him. I said no. He then said he had a mark on his chin which he had a long time. [ said I did not recognize him. Mr. Cameron — Why did yon go to the jail ? Witness— I went there partly tlirough onricsity and partly to serve my country. I am a loyal man— an Englishman, (laughter;) and I thought I might serve my country I went to the jail partly out of curiosity. (Laughter.) I think if I had been able to see into futurity I wouhl have been proiJ-l that I went there that day. (Loud laughter.) I had no conversat'. n with any legal man before going there. (Laughter.) Mr. Cameron~Now you have given us pail ; give us the other part of your reason. Witness— Well, then, I might say, if it came to the point, I went out of curiosit}' — almost entirely. (Laughter.) Mr. Cameron — But what else ? Witness— Well, coming to the point.— (Loud laughter.) Crier ok the Court — Order! Mr. Cameron— You have not told us why you went to th*; jail. Witness— I think I went entirely out of curiosity. (Laughter. I got a statement from one of the other prisoner? Mr. Cameron— Tell us all about it. From whom did you get the other statement.'' W^iTNEss— I got one from the Rev. Mr. Lumsden. Mr. Cameron— You had a fancy for the clergy, eh ? Witness— Well, I am a member of the Cliurch of England. (Loud Laughter.) Mr. Cameron— Oh, you deal with the clergy, then, entirely? Witness— Oh, now, Mr. Cameron, don't quiz me. (La 'ghter.) Mr. Cameron — Did yon speak to any one else in the jail ? Witness— Ves, I did ; but I was afraid to go through the wards unless the turnkey was with me, as I saw a very powerful man there— an awfully big man. (Laughter.) Mr. Cameron— Did the prisoner tell you that he dressed the wounds of the Fenians.^ Witness— Yes, lie told me he came to attend to the wounilB of the Fenians. 102 TBIALS OF TEiaiAS PEI30NERS. it he itii! Mr. Cameron — Did he tell you that he dressed any ? Witness — No! (Laughter.) Now, Mr. Cameron, I do not want to be made a laughing-stock of by you. Mr. Cameiion — Really, Mr. Crump, you are the funniest man 1 ever saw. You seem to think that when you make the people in the court laugh that I am the cause of it. Now, Mr Crump, would you tell mc what business you follow ? Witness — lam a commercial traveller. 1 have been a salesman in Mr. McMaster's, and if you want to find my character you had better go there and ascertain for yourself. Mr. Cameeoh — Had you any other business? Witness — (Excitedly) Yes, and 1 am a respectable ncan. (Laughter.) Mr. Cameron — I do not want to find out unythinj;;- about that ; but I want to know if you ever wanted to illuminate the world ? Witness — I have been travelling with coal oil lamps for Noah L. Piper, and you, Mr, Cameron, have seen me at Cobourg. (Laughter.) Mr. Cameron — Yes, I thought so ; that will do. Hon. Mr. Cameron — That is the case for the crown. Mr. M. C. Cameron — I am not going to call any witnesses for the defence. Hon. Mr. Cameron — Then go on ; 1 will speak after you. Mr. M. C. Cameros — 1 do not think you have a right to do so. Hon. Mr. Cameron — Li all crown cases the statute gives tbc crown prosecutor authority to address tliejury last if lie desires to do 80. His LoRusuxi' — I believe .so, too. Mr. M. C. Cameron — Yes, if authorised in writing, and if you ptay you are so authorised, I supi)08e it is all right, Mr. M. C. Cameron then proceeded lo address the jury, lie said: — May it please your Lordship and Gentlemen of the Jury, my learned friend, in opening this case for your consideration, told you there were thrc* distinct counts in the indictment, charginj,^ the prisoner i Iliree different ways, with complicity in the Feniai' raid ; and the first charge is, that being a citizen of the United States, he entered Canada in arms, to levy war upon Her Majesty. m TRIAL OF JOHN M*MAHON 103 The second is, that he joined himself with divers other evil-disposed persons in arnns, with intent to levy war against Her Majesty. And the third is, that he committed an act of hostility against the Queen by assaixlting and attacking certain of Her Majesty's subjects; with intent to levy war against Her Majesty, As to the first charge, and in connection with that charge is made the statement that he is a citizen of the United States, Dealing with that as it is pre- sented in the first instance, I submit that the Crown has failed to give any evidence that the prisoner entered Canada in arms, I will read the count in the indictment in order that you may see the order in which the offence is charged, and I will submit that lie cannot be convicted under the indictment. Assume, as charged, that he is an American citizen, in that case, unless it is estab- lished that he himself has been in arms, the statute is en- tirely against his conviction ; and though it may be an offence against the law of the land, for which the prisoner may be tried, to be associated with others who are in arms for the purpose of levying war or other treasonable acts, under this peculiar statute, those present must be in arms, and it will not do to say merely that he was in company with those who were in arms, Now, the charge is, that the prisoner, being a citizen of a foreign state, to wit, the United States of America, entered Upper Canada with intent to levy war on Her Majesty, and the language of the statute is as follows, — [Mr, Cameron here read the clause of thr statute under which the indictment was framed.] — From this it is manifest that a person associated with others who are in arms, but who commits no act of hostility, is not amenable under the statute quoted. Then, the next clause of the statute, as I submit, applies to cases where British subjects are doing cei-taiu illegal thine:*, and provides that if a man joins himself to them to aid in doing these things, he shall be held responsible, and I submit that under the statute as it now stands, it is ncccsssary to establish that the prisoner was here in arms, that if he was associated with those persons for the purpose of discharging any duty which might attach to the peculiar position which he held Avithout intending to .-lid the design ; and I svbmit that if he, as a clergyman, was along with them, administering the consolation of religion to the 104 TRIALS OF FENIAN PBI80NEK8. dying and wounded, he is not within the meaning of the statute. It is contended for the prisoner at the bar that he stands in that position, and that he did not come at all in a condition that woula tend to aid the invaders in any way, that he was not there for the purpose of tating the lives of any of Her Majesty's subjects, and that h^ was there only for the purpose of hovering around during the battle, to administer to the dying of either our friends or of the people with whom he was associated. Again, he has not thought fit to exercise the right to challenge. I am not aware that any of you belong to the same religion he does. Except in one in- stance, no challenge has been made, and that case was where the prisoner's attorney represented that the party challenged made use of expressions in reference to the case which were so strong that it would not be safe that any man's life should be tru.sted in his hands. You may, therefore, be very much opposed, many of you, to the Catholic religion not one of you, I suppose, are followers of that religion; but you are bound to consider the position in which the prisoner was placed. It if. nart of the case here on be- half of the crown that he was here as u priest ; and the single cir' cumslance to militate against him is the statement of Mulligan ; and in reference to him, I think there is not one that could set his testimony in the case to establish that the prisoner was in arms against that of the other Crown witnesses. I submit, then , that whatever your prejudices may be against the ministers of the Catholic church, if there is any who have such prejudices among you, that they ought to be dispelled from your minds. I am one of those who do not entertain prejudices against any man for his re- ligious belief; because I would consider it to be a shame on my part to assert that all others must be wrong and I right. Thus I have put the position in which the prisoner must stand ; and even if you are satisfied that he came to Canada with those parties, you would still have to be satisfied that he came for the purpose of aid- ing them, and not for the purpose of ministering to the wants of those who might be injured. We have found that ministers on both sides during the great war in the United States were allowed to mingle nmong the armies unmolested, as non-belligerents, and if they V le not now entitled to be considered in that character, it TRTAT. OF JOHN M MATTON. 105 )f to (I it would be against the civilization of onr apco. With re~ard to thd circnin stances nnder which the prisoner is here, the evid< nee on behalf of the crown is from gentlemen who eay that about Revcn o'clock on the day named a body of armed men arrived at Fort Eri<^, and that when they got to town the prisoner was seen there, not with arms, but only with a valise in his hand. This is what one Mr. Rae said. Another party said that he recognized the prisoner ordering some parlies to take up certain sat'hels, saying the boys might want them ; and that others said, speaking of the same conversation, insead of saying, that he ordered the thing to bo done, he understood him to mean that the parties might want clothing. It was said that the prisoner came over to aid and com- fort those invaders, and be vkith them, so that if any of ihese men were hurt or wounded on that occasion, he should comfort or suc- cour them. The question is, was he there simply as a Christian minister, or endeavoring to aid and encourage tliose engaged in the undertaking. Can yon say that a minister, nnder the circum- stances in which he was placed, surrounded by woi:nded men could have acted differently, or 1' it, in so acting, he was engaged in anything like a hostile encounter. Now, we have it that h« is seen at the Fenian encampment, at Newbigging's place, and hotli these gentlemen spoke clearly and conclusively that they saw him there in the encampment without arms. Then, we have him ob- served by two men, Rae and Li? companion, without arms; and later in the day, in the encampment at Newbigging's farm, he was also seem without arms. After that again wp find him going away to a boat, as testified by Newbigging. He was, apparent. leav- ing at that time and was going to Bufiiilo, as was representci The boat certainly went in that direction. There is no further trace of that boat afterwards. No one speaks of having seen the prisoner again until after the engagement had taken place at Fort Erie. Andwhat was he doing there then 'i He was there, not with arms in his hands but attending to wounded persons. He was engaged in the minis- trations of his church, or in dressing the wounds of the Fenians, as it is represented. The next seen of him we tind him at the house called Major Cantie's. He is asked what he is doing, and varions versions of his answer have been given. And here I would call ■■i m If T f^ tj;; |.p6 TRJAL OF F:i:Kf AV VRISOVSM. your aitontiou (o »ho Inct tlmt it w very didlcnU lo place .'mplioit reUancc ii.< niiylhing conuiif^ i^ccotui band i'mm n man. Here wp flu'l o own behalf, lie has simply to answer the evidence brought fo'*ward ; and if that doe* not prove strong enough to convict him, without leaving any reasonable doubt or. the minds oi those empunnellcd to try him, than be is as much entitled to an accputtal .is if he brought the strongest evidence to show that he was not there. iNo one pre- sanies to say that they saw him come there. He says he came over intending to go to Montreal, and it is matter of evidence that there is constAnt conimnnication between the Uj.ited States and the Canadian shore by means of ferry-boats, and that he co'Ud have crossed that way. 1 herciore, when he makes the statement, there is nothing improbable iu it. lie says, further, according to ■PP"!) U' 1 1 TRIAL OF JOirK" mVaHOW. m the evidoncp. of tho orown, that lio wns forcer! to join these partiw, Bnt tho crown «iiy« that Matomont in iiioonHislcnt with the faeits; for wo find him voiiintarily cnprafrod in pcrfonninfi; cortain acti^ not boinpj at all under coercion at tho timo. Yon hav,; it declared, nn ft matter of fact — whether it were conslRtcnt or not with his allegation of innocence — that he wan i hi m at the time. Now, it is quite probahlo that most of those engaged in the raid at that time were Ucman Catholics. Thoy were ;iot wholly and solely of that creed, hut it ih generally believed that very many of them be- longed to it. Wo nho know that thoso professing this religion lay great weight oji tho administration of the rites of the church, when they are in danger of dying. Therefore, is it not at all im- probable that we should fin.l thiit the prisoner, being on the Fort Krio sido of tho Niagara rivor, should Ix! found acting as lie had brnn. It is not unnatural oinnlikely that being there lie would bo found admiiilHtering the <;(»n8olation ofrcligicn to wounded or dying men. There is nothing but Milligan's statement to caaae you to put an unfavorublo constniction oi bis conduct. Tlicrc is nothing except that and that other stf.tement which the prisoner is represented by Mr. Crump to have made in jail. According to that witness, ihu prisoner's own statcmut t was that he came over hero to driRS tho wounds of such as might be sufferers on the battle-field. I ask you what weight yon can attach to the testi- mony given by a man in that way and n.idcr these circumstances. Take his general statement as against this— a statement made not merely once, but as given by Diigald C McNab and Metcalf. There ho told what ho was doing, and ho made the same statement time and again. But Crump goes to see him and he suddenly tells quite a ditlerotit story. He says he como over with the Fenians to dress the wounds of such as might be wounded. Is ?t at all likely that within one month of his trial he would make a declaration of that kind— stronger acrainst himself thai, an}* made by him at any previous time . In looking at this point, I ask yon to consider tho manner of the witnoss (rump, when he medc the statement in the witness box. I have no doubt tho -prisoner did cta^.e that be dressed the wounds of Fenians. But that he ever told Crump he came over specially for that purpose is, I submit, no; tt i 108 TRIALS OF FBMAN PRISONERS. 1 • I i i • i all probable. A man of his intelligence would not be likely to make nny declaration of that kind ; and I say it would bo unsafe and unfair to any man standing in the box as the pri oner docs, to attach any weight or importance to the declarations of such a wit- ness as rrump. We have his own counter declaration, which the crown chooses to use, and which is onsif tent with the facts shown in evidence, and from that it appears that he might have been there without being in actual hostility — without being a Fenian in prin- ciple • r aci. He was there, he tells us, because he was on his way to Montreal, was stopped in hia progress, and was caused to remain with these men in arms. Again, in Canada, it is said, ho joined himself to certain evil disposed persons in arms, bringing the of- fence under the second section of the net, which, I contend, does not apply to citizens of the United States ; and the prisoner is not charged in any other sense. On this indictment, I contend that he could not be found guilty of any of the charges, being a subject of Her Majesty. I shall submit that the evidence establishes that he was in point of fact a subject of Her Majesty at the time ho crossed to Canada, for you have no evidence in reference to the matter more than his own statement. There is no evidence that he is a citizen of the United States. There in no evidence even of what is meant by a (-itizcn of a foreign state. The statute speaks of citizens or subjects. But there is no evidence given to show what constitutes a oiiizen of the United States, or whctlier this per- son was a citizen, nothing more than his own satemunts. Ho says he was born in Ireland ; and that convtitutes him a British subject. As a matter of law, it has been held that a man who is once a British subject continucH to bo a British subject, nctwith- standing a change of r:sidcnoc or his becoming a citizen of another State. But then it is said that he said he was a citizen of the United States ; that is the statement Metcalf makes in reference to him. Therefore you have only his own admission with reference to it, and you arc asked to take that adminsion against him. But what he says in his own favor you will bo told to disregard. You will be told aa a matter of fict when he makes an assertion in his )avor, it is not to be rouud on. But it will be for you to decide that point, gentlemon. And, ' TRIAL OF JOHN m'mAHON. 109 in this connection, I would call your attention to certain remarks made by a very tenownel judge. He said, and well said, and it has been repeated by many distinguis led men since — " it is better that five guilty men should escrxpe punishment than that one inno- cent man be found guilty and punished," That statement is one that commends itself to our reason. It is one that commends itself to our merciful sense of what is riglt and wrong. You are there empannelled not to press any point against the prisoner. You are there under the Constitution under which he is tried, to give him the benefit of every reasonable and jupt doubt ; and I ask you can you see so far into men's hearts and rainda as t<( be able to deter- mine positively that the statement which is made against the prisoner is true, while that which is in his favor is false ? Can you say on your oaths, that he, a mininscr of tho Gospel, who had been discharging those trusts and duties which we say ought not to be discharged but by those men fully feeling the awful res- ponsibility of their position — men who pre-eminently believe in truthfulness — can you^ from the evidence produced, believe him to be guilty of the falsehood which has been represented? Other persons had been cap..ured and forced to serve in a similar way and he Avas not better able to resist the Fenians than any of Her Majesty's subjects, who were captured and detained, nor perhaps as well. It is for you, gentlemen, to judge of tho confiiciing statements. It is for you to say whether that which tells against him shall be accepted, and that in his favor be discr.rded — that the one report is true and the other report false. But, recollect, when you are discharging that duty that if you declare the statement in his favor to be false, you arc thus deciding in view of consigning a fellow creature to tho gallows. Tho third count of the declaration charges — that being a citizen of a certain foreign state, at peace with Her Majesty, tho prisoner assaulted and attacked certain of Ilcr Majesty's subjects with intent to levy war. What do we find as a matter of evidence with regard tc that charge ? There is no evidence that ho com- mitted any such breach of the law. On the second ol June, it is a fact that ho was teen without arms in his hands, lie is observed merely ati«Qding wounded persons. Now, I ask you, can the evi* -I iti lit TB4k1M t» tmttAlK PRmOKBBS. i m if 1 1 ■I 1 #€ftcie fatJsfy you thirt! h» has been guilty of an act of hostility by iisiltilting Her Majesty's subjects, with intent to le^^y war: or waa ke' engaged simply in ministering to the wants of wonnded per- son* ? This man, having been seen in company with Fenians, they charge thftt he was associated with them. What is the evidence on (this point ? Newbigging says he was down at the Fenian camp set^wal times that day and spoke to the commander. Gen. O'Neil, «hr being engaged in that way. I submit Ihat any man who was there for a peaceful purpose is not in any worse position than a doctor who goes to the battle-field to dress the wounded. The prisoner says he is no Fenian. Humanity would revolt at the idea of any one passing by wounded men — Fenians or no Fenians — without rendering them assistance. And if our people had treated the Fenians in any other way, they would have been denounced throughout the length and breadth of the land as a disgrace to our humanity. But our brave men in the field acted nobly in this respect. They took care of the wounded Fenians, and attended to their wants just as well Ai6 those of our own friends. I say, then that if our people do this and may not be charged with being criminals, then this pris- oner at the bar ought not to be considered as in arm", and an inradcr, because he was there attending wounded men, even al- though they had been arrayed in arms against llcr Majesty. With t'egard to Milligan's statement that the prisoner had a revolver, I would remark that that witness is the only one who states that ho saw it. The questions arise, did he then see the prisoner at all on the occasion referred to ; is he confounding him wiih some one eUc ; or if he did ceo him, is he representing truly the manner in which he saw him? On the night before, you find, he •ftjrs that ho sat np late, and that on the next momiug he TBUL OF 70HB U'yAHQV. in took several gluees of liquor before breakfast. Is such a maa, think f oa, one whose recoUoction can be depended on ia any shape or way ? I say it is altogether unsafe to rely on it as against that of every other crown witness. MiHigan will not go so far as to indicate the color of the belt in which, l)e says, the prisoner kept the pistol, or even whether he had a belt at all or not — siiow- ing how defective his memory must be. Can you place credit on such testimony i If you are men with such strong prejudices against Fenians that it is only necessary to accuse a nsan of being one of them, to cause you to find him guilty, then you may do so. But if, ns I hope you are, prepared to act justly and impartially, you will be very careful how you will value testimony such as that. Of course, you must have some feeling of indigna- tion at the Fenian atrocities which have been committed. Thronghont the length and breadth of the land there is but one sentiment with regard to the acls of these Fenians. They are justly regarded as being as villainous a herd of men afc ever disgraced our common humanity. That is my feeling cowards thco« men. But in a court of justice my feeling is that they and every r ne connoctod with them are entitled to have their cases fairly and di -.passionately considered, with no more prejudice against them than, would exist against any one charged with crime under ordinary circumstances. You must not allow any prejudices yon may have against Fenians to weigh with you in considering this case ; for the prisoner tolls yon fairly and squarely that ho was not one of them — that ho .vas a clergyman, whose duty it was to minister to pet sons in exiremis the consolations ofr«- lie;ion — consolations which were surely needed. If these were the bad men wc suppose and believe them to have been, then I say they did want the ministrations of religion — if roiigion conld be of service at that time. Our belief may be that the ministrations of religion were not of senicc at that time. But others, wo know, entertain rt [different belief. The Roman Catholics say that the Church should control the thought of its people, and we, as Pro- testants, while disputing that right, sliould be prepared to aecord the right to those who think differently from U8 to judge and think for tbomselvca. That being aoeordod, tho priMoer 112 TRIAtS OF FENIAN PrtlSOlTKRS. U i: 3:] \»ith faith in the administration of his Chnrch, mnst have felt that, had though we bilieve them to be, they needed him at their side. For much as we condemn thci'- acts — and ene- mies of ours though they be — we should be sorry to think of these men being sent from time into etornity unprepared for their last end, and without having an opportunity of receiving those vari- ous consolations of religion w hich he could offer them. I have now, 1 think, reterrcd to all the circumstances connected with this case which seem to require any allusion on my part at the present time. I appeal to you on behalf of the prisoner, who does not stand before you as having been actually in arms, or prepared to take away the life of any individual in the community — or pre- pared to shed the blood of any of Her Majesty's subjects— and I say he is cmitled to the most favorable consideration which you can L'ive his case. The evidence does not, T submit, establish that he was in arms or associated with those in arms, or that he com- mitted the alleged act of hostility by a tacking any of Her Majesty's subjects. But on the contrary, if his statement is to be believed, be w-'w there vs a peaceful minister of the Gospel, to give the con- solttLion of religion to those who most needed it, and I would re- peat to you that which counsel should always do in acrimii al of- fence, that it is the boundon duty of t'le jury to give a prisoner the benefit of any reasonable doubt that they may entertain. That is your duty, gentlemen. We cannot fritter away the rights of parties charged before us by saying that is a matter of fact to be proved by them ; you should not speculate in reference to it. I say you mmt take all iho circumstances into account. I am aware that his lordship will say, in all probability, that you are not to conjure up doubt?. But I do not iisk you to do so. I simply ask you, as thinking men, to take the story and say, whether honestly .ind fairly and without reasonable doubt, you can come to the conclusion that it was a falsehood, where it worked in favor of him. If you do so you con- sign him to the gallows. And I submit that though you -have uoihing to do with tho puni-hment of the prisoner, still you are responsible for your verdict, and cannot leave out of sight the cir- cumstance th)i' your verdict affects the wkole future of his life. You cannot let that out of your consideration. You are the par- TBIAL OF JOHN m'mAHOM. ties who punish. You pronounce the words that render punish- ment a mere matter of clock-work or machinery to follow. And now, in onclusion, I call upon you, gentlemen, in the name of British justice, to give the prisoner the benefit of every reasonable doubt the case presents. Hon. J. H. Oamurok replied on behalf of the Crown. Ho said : — May it please your lordship: gentlemen of the jury — The prisoner cannot say that he has not been most ably and eloquently de- fended. He could liave found no one probably at the bar in this country who was better fitted to take up his defence, and I am Bure no one could more ably and eloquently have urged every point that could have been advanced on his behalf, than my learned friend and namesake who has just sat down. But I think ray learned friend is mistaken both in the view of the law which he offers for the guidance of the court, and of the facts which ho offers for your instruction ; and it is my duty, in a case of this momentous consequence, to endeavor to place before both the court and jury the law and the facts in the manner iu which they strike the Crown, subject to the opinion of thecourt upon the law, and leaving you vhen you retire by-;vnd-bvc to decide which it the more correct view accordin*^ to the evidisnce. Now, I say iti the first instance, as a proposition of law, tnat my learned friend's view of the counts of this indictment is wrong — ti.ni. there is no necessity whatever that the prisoner at the bar or iiwy person on- gaged in the raid, and tried separately and singiy, should be proved to have been actually iu arms on the occasion. The statute does not require it, and the biw requires no more than the statute demands. The statute declares that if a party enter* Upper Canada with intent to levy war, that is an oft'eucc. It BRy« that if a man ba and continue in arniB in Upper Canada, that is also an offence. And it further says that if a man ontora Upper Canada with intent to levy war, and commits a felony, which i,^ ordinary time* js punishable with death, that is also nn offence. Bi'.t it aays furtlier that all those are separate crimes, each of viU'wh may be oharged separately against a prisoner accused of them. In this case the count upon which we rely more than on ^ny of the oUitni U that which charges tho prisoner with having entered M ■ 114 TKIALS OF FENIAN PRISONERS. Upper Canada with intent to levy war. Tf that intent is proved, then the prisoner is liable to be found guilty of the felony ch(irged. It is not necessary to show that he entered the country actually in arms, nor that he continued in arms, because there is no law more clear than that, in the highest crime knowu to our laws — the crime of treason — the mere fact of a man being with a party committing treason, even if he takes no psirt in the overt acts, is just as guilty, if by his presence he aids and comforts them, as the man who fires a gun and kills a subject in the pursuit of the treasonable pur- pose. The law holds him responsible beoauae ho ia there aiding the general design. IL would be a mistake if the law were not so. It would be entirely wrong if men engaged in the commission of crime could shelter then .selves under the pretence that it was not their hand that intlicted the blow, that took away the articles stolen or that forged the [)aper — that tliey did not commit the ••rime, but that they merely st<»oil at a distune and watched while others committed it, prepared to give them advice as to how it should be done, or warning in case they should be interrupted. If the law were of that nature such men would be held to be inno- cent although, perl^aps, they were the very means of preventing, from parties coming forward to avoid the completion of the crime, while only they who actually struck the l)low or stole the article would be held to be guilty. The law. wliicli was devised for the protection of society, t?ould re(!Ognise no su(}h doctrine. It wa-^ too wise, it preserved too well the safeguards of society, to permit, any man to procure or encourage the commission of a criminal act and allow him to go scot free on the plea that his hand was not the hand that actually committed the deed. Thcrefoi-e his lord- ship, when he addresses you, will tell you that my learned friend's law is in that respect entirely wrong, that there is no necessity to prove that the prisoner himself bore arms ; and his lordship will toll you moreover tliat if he was here with a body of men who bore arms and continued mi arms in this country with intent to levy war, he is as much guilty us the men who tired the shots that killed our fellow-subjects at Ridgeway and wounded them at Fort Brie. That is the law ; it is well that it should be the law ; and i( is well that all should know it is the law, so that before any otic tb:al of JOHN m'mahon. lis to Iwill ivho to thai <'ort lolU' lends countenance to tlite commission of a crime he maj know that he cannot hope afterwards to slielter himself under th«i excuse that he did not actually commit it. My learned friend says also that this man is not to be regarded as a citizen of the United States, but that having been once a British subject he must always be held to be a British subject. It is true that it has been a doctrine of our law that " once a subject, always a subject," and the doctrine of our law has not been changed in that ri pect - ut according to the law of England the power the Crown excrcis,es in regard to that law places no ban and makes no charge against a man who, having been a subject, offers allegiance to another country, where on one side he receives protection aad on the other yields allegiance. The law of Etigland does not interfere with such a man's position or make his act a crime ; but now and then, with regard to snb- jwcts residing in a foreign state, the Crown issues proclamations ad- vising them a;* to the course they should pursue in case of war. There is nothing, however, in the law of England that prevents any man from receiving the protection of oi offering his allegiance to another state, or that prevents him calling himself a citizen of that ?*tate, while his allegiance to his own coxmtry continues. The statute which has lately been passed clearly and plainly lays down the diatinctiou between a citizen of a foreign stsite and a"8ul>* ject, because it distinctly declares that citizens or subjects ot a foreign state — distinguishing between that class and tboso who are subjects residing in that state — have no right to come over to us and levy war; and should they do so, whether they are subjects of Great Britain or not, being citizens of that country they may he ••barged as ."uch, it the Crown chooses to sink the fact that the} are subjects. That is what the Crown does in this case. We do charge that the prisoner came from the United States as a citizen of that country, and therefore comes under the very pro- visions of the law a.s a oitizcn of a foreign state who invades our shores, and if shown to be guilty must suffer the consequences. That isthe law, and if there has been any mistake in regard to it my learned friend knows that it is open to him in another tribunal to make objections to it and obtain the benefit of the mistake from that tribunal. Well, then, 1 think that mv learned fiic.\d'8 law 116 TRIALR OF FENIAN PRISONERS. upon both of these points will be declared by hid lordship to b« incorrect — that neither was it necessary that we should prove the prisoner to have been in arms, nor that we should prove more than we have in regard to his citizenship. Now we come to the pri- soner's own declarations and to that which is really the main point in the whole of this matter, as to whether you believe he is guilty of the facts charged or not, I agree that the benefit of every reasonable doubt ought to be given to the prisoner. I agree that where yon find that there are really reasons in your minds that would make you feel a solemn doubt as to whether yon ought to convict the prisoner or not, it is your duty to give him the benefit of the doubt. But it is only that kind of a doubt which the law recognises the benefit of which my learned friend is entitled to claim from you. In order to come to a solution of any doubt that may exist in this case we have to examine all that the prisoner has himself said and all that my learned friend desires that you should take from his statements. I wish to lessen in no one par- ticular whatever weight those statements may possess ; but at the same time I am bound to lay before you the manner in which they were made by the prisoner and the variations to be observed in them according to the evidence that has been placed before you. We have heard nothing to show that our witnesses are unworthy of credit. My learned friend assumes nothing against them except that wluch may be drawn from their manner and conduct in the witness-box, and we have a right, m the absence of testimony to the contrary, to assume that they ai-e men of truth and good char- acter who have endeavored to explain to you, to the best of their recollection, what really occurred. Now, we all well know how freq iently men who see the same transaction will vary in their accounts of it, and I am never surprised at these discrepancies, be- cause men standing in different positions in regard to a scene which is being enacted before them, or whose minds are not probably worked up to the same point of keen interest and observation, or with their attention perhaps not fixed in precisely the sameT way, will afterwards give dificrent accounts of the same transaction. Not only the events of eve'-y-day life but history tells us that that ii the case, for it is one of the common results of tho fallibility of TklAL OF JOHN M MAHON. 117 hnman judgment But although there may be that difference in the accounts of any particular event, wc may at the same time have no doubt as to the fact itself Thus no one can doubt the fact that the prisoner was at Fort Erie at the time stat«^d. We are all satis- tied on tliat point. There is no doubt, that every one of those witnesses who swore to his presence saw him as stated, the only question in rci^ard to his identity being that which arises in refer- ence to the position in which he was seen. In respect to that the prisoner made statements to different people ; and my learned friend says that if the Crown takes the statement of an accused person, they must take it all, that they cannot sift it and say one part is true and the otlicr is not That is mistake both in point of law and of fict, because we know that a person in jeopardy will often make a statement that is partly true and partly false in order to screen himself. It is proper and right in such a case for the juiy to sift the statement and lake that part which is true, rejecting tliat winch is mauifestly false. The law upon this point roads thus: — " It seems now to be settled that the wliolc of the *' prisoner's statement must be taken into consideration by the jury, *' who are not bound to take what he has said in his favor to be " true, because it is given in evidence by the prosecutor, but are to '* weigh it, with all the circumstances of the case, and determine " whether to believe it or not. The jury may, therefore, believe *' one part of the prisoner's statement and disbelieve another. '* They may believe that part which cliarges the prisoner and " reject that which is in his favor, if they see sufficient grounds ** for so doing. In determiniug whether the statement be true or " not, the jury sliould consider wlicther it be probable or impro- " bable in itself, and be consistent or inconsistent with the circum- " stances of the case. If what he said in his own favor was not cori- '* tradicted by evidence offered by the prosecutor, nor improbable " in itself, it will naturally be believed by the jury, but they are not " bound to give weight to it on that account, but are at liberty to ** judge of it like other evidence by all the circumstances of the " case." Now, gentlemen, that is exactly the case here ; and if my learned friend had one continued statement of the same character from the prisoner — if one single statement made by him had only y i lis TRIALS OF FGNIAN fRISONIBS. been offered by the prosecution — my learned friend's position would have been infinitely bettor than it is now ; but we are bound to point o'-it to you that not only have the different statements made by the prisoner not coincided, but that they absolutely conflict. We have him on one occasion statins that he came over from Buffalo with the Fenians for the purpose of dressing their wounds and ministering to their spiritual wants. We have him on another occasion stating th'it he came over on tho ferry on the 1st of June, when he was seized and arrested by the I'enians and kept amongst them against his will ; and on a third occasion we find him stating that he was on his way to Montreal and found himself unable to proceed further, after reaching Fort Eric, in consequence of the disturbance caused by the raid. Now, we have hero three dis- tinct statements made by the prisoner. Which of them is true i Did he come over with the Fenians, or was he seized by them, and, a? he says, were his vestments stolen and himself detained, or was he on his v, ay to Montreal and accidentally detained at Fort Erie f Is it probable that any one, desiring to go to Montreal from Buffalo, would go by the way of Fort Eiie, when lie could go directly cast- ward from Buffalo ? Mr. M. C. Cameron — What is the difference of fare between thai, and other routes ? Hon. Mr. Cameron- — I know nothing of the difference of fare, but I only ask is it a natural conclusion that a person intending to go to Montreal from Buffalo would cross over to Fort Erie ? Then, as to the second statement made by the prisoner, that ho was com- pelled by the Fenians to remain with them, it is disproved by the fact which has been sworn to that at three o'clock on the afternoon of Friday ho got into a boat with three other parties to go to Buf- falo. He went away in that boat on Friday. If there was com- pulsion used to mal:e him remain with the Fenians, how was it he returned to be arrested on Saturday 3 Did he come back, as he him- self said, to dress the wounds of the Fenians? Did he know that they were going out on Saturday morning to fight the Queen's troops at Ridgeway ? Did he come to aid and assist them as their spiritual adviser? Do?a not the evidence point distinctly and clearly to that being the caiw ? Can any one doubt that TRIAL OF JOHN M MAIION. 119 he returned voluntarily to give those reckless and criminal men the aid and comfort of his presence and encouragement in their wicked work ? Is there a doubt that he was scon there binding up the wounds of the injured Fenians, and giving them consolation, and that he was arrested on Sunday morning at Major Cantie's place near Fort Erie? IIow did he get back there, af^er leaving in a boat on Friday, if it was not voluntarily and to aid the Fenians? Is there not, on a whole review of the evidence, reason to believe that those parts of his statements which make against himself are true, as the Crown states, and that those parts which make in his favor arc untrue ? Why, gentlemen, apart altogether from the statement of Milligan, who saw the prisoner actually in arras, noth- ing more is required, in my judgment, to justify conviction than the lat-it, which cannot be denied, which indeed is admitted by my learned friend, that the prisoner was there to aid the wounded among the Fenians and to give religious consolation to the dying. t?ui8 to the best of his ability, and perhaps far more powerfully and effectively than many with arms in their hands, giving aid and assist- ance towardfi the accomolishment of the wicked designs those men had in view. It is nothing to you wheiher he went as a Roman Catholic or as a Protestant clorgyinan. It is enough for you to think of him as administer of religion, giving him all the power and influence that the character of a minister of religion will con- fer upon him. Think of him not as a Roman Catnolic minister, but, if possible, as a minister of the religion of Christ ; and then consider what his position was amongst those men, and ask your- selves whether, under all the circumstances, the poor miserable dupes who were led to commit these crimes against our country, should be put forward, convicted and punished, while those men should be set free who, like the prisoner, although net actually in arms, counselled and advised Ihem, and to vihom they looked as to a superior for instruction and guidance, for aid in their difficul- ties, and for comfort in their last extremity ? If those men hardly dared to go into the conflict withiut their spiritual advisers by their side to ease their troubled minds as well as to bind up their wounds — if those men felt it necessary to have the aid of their ministers in their unholy enterprise — it was surtly the duty of ISO TRIALS or FENIAN PRISONERS. men like the prisoner who wielded influence among them to held aloof fro. them, fo wa-u them of the criminal nature of thoir ilosigiiH, and to refuse theui aid and encourngenu/nt in the pursuit of them. Ift it to us to ajtpeal, whose homos have been desolated and whose youusx iikmi have boon struck down, that the minister of religion sln»\)id bo allowed to escupo because, although he did not acttially bear a;mij, ho gave the ii;5"'jncc of his holy office to those who carried tiro and sword and desolation into our happy homes and tiresidos ^ Is tJiat the gro\ind upon which he should be hcl tho guilt of the prisoner, do Mot lot any prejudices or feeling deter you from acquitting him ; bnt if, on tlir^ other hand, the evidenc- leads you to tho belief that, in coiitradi<'tion of his own statement, he is one of those who advised and encouraged the men who committed that outrage upon our people, then you must banish from consi- deration every thought but the thought of doing your duty. His Lonnsiiip then cluirgod the jury saying — You liave to deal with the facts set before you in evidence, and I have to deal witii tho 'aw as it bears up(»n tho subject. As a matter of law I shall state to yon that it is not necessary that every man should be found in arms in order to be held guilty of the o.Teneo of levying war. The statute does not mean that. It means tliat every one who comes into the country with intent to levy war is guilty of felony, whether lie actually bears arms or not. Tho other reading of the 'aw is impressed by the counsel for the defence; but I have left my reading of it open, so that if In- thinks 1 am wrong ho may have tin; oppor'unity of obtaining tho opinion of my learned hrothers on tho point. At present, however, you aro brmnd by my reading of tho law, and I say therefon^ at tho beginning that it is not necossnry, in order to establisii the charge of levying war, to «hi~>w tliat the prisoner bore arms jit al', but it is only necessr.ry to show that he was nssociated with others and engaged in tin* gen- eral enterprise. If he was there involuntjirily and against hiti will, then ho is not guilty. Tim opinion is not to go abroad as ibunded upon Authority that because ho is a priest wearing tho rot)e» of his office ho might with im^nmity go thoro with those men. Tlio fact tUit he is H priest will not protect him in the conuuit>9ion of aq 122 TRIALS OF FENIAN rElSONKKS. nnlawt'iil act, nor would a doctor, dthoagli there to dress the injuries of tlio wounded, be entitled to pr*: tcction under similar circumstances. Tii legitimate warfare there arc certain rules observed by nil civilized nations : the dead are decently buried, the wounded attended with care, the prisoners treated with humanity, non-coinbatants such as chaplains and medical men are not interfered with while in the proper pursuit of their humane calling, and private rights and private property are respected. But this was not war in that sense, n(>r were these men a regular army. If anvthiii'v at all thev were a band of nuu'auders who came from a country at peace with us, to eonunit an assault upon an unortending people ; ar.d although perhaps they had the sympathy of a large number <»f the people of that country, sail their act was a violation of the laws of that countr'; as well as of our own. That fact should be borne in mind, because there have been a good many things urged which it would be proper to urge if there had been legitimate warfare, but which have no force otherwise. Now, the Crown undertakes to })rovc tluit these parties ca'Mc to wage war tiuon Ilei Majesty, and the charge against the prisoner is that he was ime of the parties wno came with that intent. JIi5 answer to thai is that he was u<»t one of them ; first, he says that he was there, not t<» I'-vy war, but as ,\ minister of religion, and again that he was there against his will. As regards the lirst part of his answer, what 's the evidence ? The first v/it- nesf.es who speak of liis being ^Iicre are Ilae and Willcox, who speak of him as being there soon after the landing, and their attention was railed to him from this circumstance : Rae says that the main body had moved forward, leaving some stiagglers behind ; some of the main body had left their vhIIscs, and the prisoner said to these stragglers "Take up these valises, beenu^■e the boys may "want them." AVell, does that show that he was tlu're against his will — that anybody was compelling him to go with the main body J The defence says that h(^ was detained tliere by forces, but if you believe this witness you nmst believe that he vias not there as a pri'or.er or und(>r any compulsion, but as an aidcR in the general design. 'ITiat is the tirst fact for you to judye upon. J)oeH the evidence "how t)ijit tji*-' pmoncr came there against his will or V,> i» TliiAL OF JOHN m'MAHON. 1S3 (.{■ •-Is it- ho i( ir i.it ll; lid UJIV w his (1> .' v<»u i.s a the t.» ai aid them in their projects ? If he came there vohmtarily to aid them, then he is guilty under the lirst count of the indictment — he is found associating with them and furthering their aims, and hav^ng d'>ne that he is juBt as Uablc as if he had borne arms and were found lighting in the front of the battle. It must be observed that the ioarncd counael fov the defence does not impugn the evidence of either of these witnesses. Thc^i as regards the witness Milligan, who also saw the prisoner there, it is for you to say how far you can rely upon his statemen*'* ; if you cannot rely upon them with confidence — that is, reasonable confidence — then reject his evidence. Milligfin says that the prisoner was in amis with the rest, and if you can believe him it would appear ^ it he was personally armed ; but that is not a material fact, for as I read the law it is not necessary, asi I have told you, to prove that he was actually in arms in order to establish the intent. Milligan says that the prisoner was advising the men to take care of themselves. Why ? for what purpose ? If they had come over in foolish igno- rance of the law, or in wilful violation of it, would you not liavc thought that ho w>inld have told them to go back again, if he had not been in favour of what they were about to do ? If ho was not there to aid thoiii, wouM ho not have told them that their oiiti-r- prisc was illegal and advised them to return ? Well, after getting breakfast they moved down to Newbigging':* farm and there con- structed their camp. Wo find the prisoner in the camp along with them. Is ho tiiore by com})ulsion ? Is there any evidence of that? He is seen talking with the iflicors of the force, thosp apparently who were in comniand of the canij). (Jne of the New- biggings nays that ho waw him tlien^ ; titat ho aft<>rwards proceodod witli two or thro" others to the hank of the river; that then* they saw two boys rawing a boat down Jjo river ; that thoy hailed it and asked the hoys to take them over the river; that the prisoner then embarlvoc; with the others ; that they doehu'od tlieir iutentictn of going to the Amorioan shore; a\Ml that one of them called him " Father," and said " Yo\i had bettor take his seat." The witiu'ss saw no more, but tho other N>wbigging !;aw them cross in the course usually taken by boats passing to the Anierieati shore, and the inference is that they went over to the other side. That was I; 124 TRIALS OF FENIAN PRISONERS. on the afternoon of Friday the 1st. We hear nothing more of the prisoner, according to the evidence, till he is found at "Major" Cantie's house— a man who is proved to have joined those people when they came over, and who lias not been heard of since. He was found there after the buttle at lUdgeway. Three of the wit- nesses spoke to him there, and he does not appear to have given exactly the same account of himself to all of tbem. Mr. Mc- Murrich says that the prisoner told him that he came over to bury the dead and perform his duty, that ho was on his way to Montreal, and that ho did not know if there were any Feniaus in the house. Mr. Ilodder and the other witness say that the prisoner was asked if there were any Fenians there and he replied "no"; that atter- wards a dead and a wounded Fenian wore found in the house; and that the prisoner said he had lost his vestments and was wanting to get others. Now, these two statements might be construed very diflcrently as against the prisoner, but when both are taken together they point to the inference that he had knowledge of the operations of the Fenians, and desired to conceal it. You are asked by the Crown, is it likely that, if one man were dead in the barn and another wounded in the house where Fenians were sure to find symj)athy and succor, the answer given by the prisoner was bulicvMl by him to be true, that there were no Feni.'ins there, taking into consideration liis own avowal that he was there to bury the dead, to dress the wounds of the wounded and to give spiritual consolation to the dying? Is it likely that he was there in the character he wants you to believe he bore — that of chaitlain or priest — and yet was ignorant of the [)rcsenc(' t)f these men ? The ( 'rown .says that it is not likely, and that ho was prevaricating and telling what was not true. Now, as jo peojdo giving dit!orcnt accounts of the same thing, it is very often hl>n(^^tly done i>.nrevented its subjects from migrating from England, but it has been the modern policy for many years rather to facilitate tlieir going if by doing so they thought they could better their condition. The population in nniny places had become too great in proportion to the means of subsistence, and it Wi'.s therefore thought wise to permit the emigration of those wlso desired to leave the country-. The Crown Las not in late years dictated as to where its subjects should go or how they should conduct themselves. They have been allowed to go to the United States, which invited to its shores the |»eople of all the eotnitrles of Europe, to become sub- ject to that country, ami to actiuire the rights of citizenship. The rule of law is and always has beiin that once a subject always a subject, and that iloctrine carried to an <'\t.rftme as between Eng- land and America led, in fait, to the war of IHTJ, for it arose in this way, that do things, to enter into certain enterprises, whicli they would shrink from if they had not the sanction of religion and were buoyed up with the certainty, in their own minds, that they wnuld not die unrcgencrated. It is not surprising therefore to lind tliat men who engage in such ncfaiious undertakings as these should feel encouraged by having among thein those who would bind up their wounds and afford them spiritual comfort in their dying moments. If you find that the prisoner was there for the express purpose of giving them to understand that if anything occurred to any of them he was ready to bind up their wounds, to receive their dying confessions and to absolve them of their sins — and in his capacity of priest he was bound to grant them absolution if their confessions were sincere — and if these were means by which others were induced to join and follow the fortunes of the band, then he was giving them all the aid and comlxjrt necessary to make him to all intents and })urposes a party to the enterprise. The questi< n then is, was he there for that pur})os<' ? The ('rown says that lie was. Tlie defence, on the contrary, says that no one should be convicted of the charge of levying war under such circumstances, and it is urged that the doctors who dressed the injuries of the wounded might just as well be arraigned and convicted. IJut those who (iflcr this objection do not make this distinction : that a doctor, hearing of casualties after a coniiict of this kind, might go to the assistance of wounded parties, es)»ecially if he had previously dissuad I them, as was his duty, against their unlawful enterprise ; but it would be improper ftir bin) to acc('mpany them before the battle, thereby giving them that encouragemer.t and comfort in their design that might be atforded by his presence. If we permit strangers to come into this country and enjoy the protection of our laws, they owe certain duties in return which they cannot evade, it is their duty, as it is that of the subject, when Ihey see a crime being committed, cither to jtrevent it or give inforuiation in order to procure the punish- ment of the guilty parties. Now, the prisoner came Ijere cither with an innocent or with a crimiuHl purpose. If lie came iiino- 128 TRIALS OF FENIAN PRISONERS. CO nth", the moment he knew that it was the object of those men to tread flown our laws and carry war into onr country, it was his duty to turn them, if possible, from their design, .".nd failing in that to go away from them and inform tlie authorities of ihelr un- law iiil aims. If he failed in that duty, even although all he says be true — thrtt he Icept them from being drunk, thereby preventing the eonmiission of greater outrages, that he bound up their woimds, that he consoled the dying, and that he did everything which as a hunume man and a priest he should have done ; — even were all this tru«\ T say, if he failed in the duty he owed to the law which was being outraged, he was guihy of aiding them in their enterprise and doing all in his power to promote it, just as much as if he was armed with pistol, sword or other weapon. Now, then, does the evidence point to that as being the case i If it does, then ho is guilty ; if it does not, he is innocent, lie rays he was forced to join thctn and was detained by compulsion ; but where is the least evidence of that? A man may have been forced to join the band, and indeed some of the witnesses who have been examined before you were held as prisoners ; but do you tind evidence of com- pulsion in the fact that the prisoner was. marching in the rear, that lie gave orders for the valises which had been dropped to be picked up, and that that having been done he again fell quietly into the rear and marched on with the rest? Is there any evi- dence of coercion tb.ert' ? If not, where is it ? You have it only in liis own assertion. The rule of law with regard to statements made by accused parlies is that you give them the benefit of those state- ments as far as they are shown to be true or consistent witli the facts ; l)ut if they are proved to be untrue and inconsistent with the facts, th^n you ar(^ to give no credence to them whatever. Then, you will recollect that the prisoner followed the band to the camping ground and was seen there by some of the witnesses. Was there any coercion'uscd to keep him in the camp 1 AVas lie heard to protest that he was there against his will ? Nothing of the kind, lie was found there associating with the ofiicer« in command, with no app.'.rent restraint over his movements. At three o'clock on Friday afie;iioon he was scon going quietly in a boat to Buffalo. Who or what comjiclled him to go back from Buffalo to tho Cam.- TRIAL OF JOHN m'MAHON. 129 Ml re dian side ? Who took him to Ridgeway afterwards ? Was it upon compulsion that he returned and remained till Sunday, when he was arrested at Cantie's house ? There is no answer in the evi- dence as to that. It has been said that if there is any doubt in your minds you should give the prisoner the benefit of it. It is true, that is your duty . If you find on a careful survey of the evidence, that there is anything to create a doubt in your minds, then it is your duty to ac(|uit him. But it is not your duty to conjure up imaginary doubts. A doubt Avhich wciuld justify you in acquitting him is something that would alarm your minds after- wards in case of conviction and lead to belief that you had been Avrong in your verdict — not such doubts as ingenious counsel may suggest, but what may faii'ly arise on viewing all the circumstances of the cjise. If two or three men were spectators of a fight it is probable that the account givcii by each of the transaction would diflfer from that given by the others in certain particulars more or less import- ant ; but because of that variance which would arise from the difterentvjaspects in which the transaction was viewed, would any one say that it had not occured at all ? The clear picture the Crown wants to make out is that the prisoner came there of his own accord. lie wore the priestly robe and was regarded with all the reverential foeling that orduiary men bestow upon the wearer of that robe. He was there, even according to his own showing, to bind up the wounds of the stricken, and to whimper Ihc consola- tions of religion into the cars of the dying. lie says that that was his duty. Well, that idea of his duty may have proved one of the greatest possible incitements to the others to prosecute their unlawful undertaking. If that was the case, was he not giving them all the aid and encouragement a man could give ? Was his conduct consistent with tiie conduct of a man obliged to go there and remain with them, or do not all his acts point to the conclusion that he was there voluntarily ? If ho was there by accident while on his way to Montreal, as he asserts in one of his statements, and if while there ho saw a dying man and aided him in his last ex- tremity, one would hardly be warranted in saying he was guilty of levying war ; but is that the fact, or is it only a pretext afterwards thought of to color the crime with wliich he is charged ? It is for N 130 TRIAL OF FEliriAN PRISONERS. m you to detennino this question according to the evidence. I have made such remarks as will, perhaps, allow you to see your way clearly throufyji the ingenious mist Avliich may have been thrown around the case by counsel, 1 will now read the evidence, and it is your province to believe what you please and reject what you please as unworthy of credence. If all tlie circumstancps lead you to doubt that tlie prisoner was_ there to aid the enterprise, then you should not convict him. The policy of tlie law is not to convict an innocent man, l>ut to not allow a guilty man to escape on any j)retcxt he may set up. The prisoner, you should bear in mind also, is entitled to bo considered imiocent until the Crown step by step shows him to be guilty. In some parts of the world it is the object of criminal prosecutions to find an Jictiiscd party guilty by every means that can possibly be employed. He is interrogated by the Judge, urged to make statements which may be tortured into evidence against him, and by other moans entrapped into'admissiors of guilt. In this country we do not allow that, a.ul such modes of enquiry are unknown. We rathei- err, if wo err at all, in the o+hcr direction, and surround the accused with every protection. The people who speak our tongue have always been and arc tenacious of their personal rights and jealous of their liberties. They would not suffer the law to condemn a man on suspicion ; and wlxen, therefore, an accused person is placed upon ti'ial the law holds that until his conviction every presumption is in favor of his innocence, and after he is pronounced guilty every presumption is in favor of guilt. A man stands erect and clear until the voice of society, speaking in the recognized mannei- and with the recognized authority, declares him to be guilty. With regard to the legal objections that have been raised, you have nothing to do with them ; if they are good your [verdict, should it be for conviction, will not be sus- tained. It is every man's right t persons who might be wounded or dying, then he committed n offence vvliich comes within the meaning of the statute. His Lordship — My reading of the law, as I stated to the jury, {9 that if the prisoner came into the country as a priest, for the pur- pose of aiding and comforting those Avho bore anns, then he came precisely on the same footing as if he, himself, had borne arms in his hand. If I am wrong in that reading of the law, then the whole chai-ge to the jury fails. Mr. M. C. Cameron — ^The way in which your lordship puts it TRIAL OP JOim iI*lCAttOIf. 133 it is, that if the prisoner came to adminster spiritual comfort to those wlio might be wounded, it was an offence which comes within the statute; but I hold that it must be shown that he came here with intent to levy war. His Lordship — Well, perhaps I misdirected on the whole sta- tute? Mr. M. C. Cameron — Ihese, at any rate, my lord, are the ob- jections I raise on behalf of the prisoner. I hope your ^ordship will note them, but if you tlecline I certainly will not put thi»m into writing. His Lordship — Oh, if you put it on that ground I will not de- cline to note them. Let us hear your first objection. Mr. M. C. Cameron — Well, I object, first, that your lordship charged it as a duty legally incumbent upon the prisoner to have interceded witli those men against the commission of the acts con- templated, and that having failed to do so he is responsible for the consequences. His Lordship — But I have withdrawn that direction. Mr. M. C. Cameron — Well, I wish it to appear on your lordship's notes that the jury were so charged, and that the direction was af- terwards withdrawn. His Lordship noted the objection. Mr. M. C. Cameron — I submit, my lord, that under the first count of the indictment your lordship should have directed that at the time the prisoner entered the country it was with the intent, not to levy war against Her Majesty, but to administer the consola- tions of religion, and that being the intent, he is guilty of no of- fence under the statute. I submit that under the second count your lordship should have told the jury that they must find that the pri- soner was actually in arms before he could be convicted of intent to levy war as charged. I submit that under the third count your lordship should have directed the jury that the prisoner could not be found guilty of levying war unless he himself committed an overt act of hostility against Her Majesty, not that he was there with others who did. If he were indicted for treason, then he would be liable for the acts of the others, but not otherwise. But if he is liable to all the consequences of treason, h« ought \ ^ hare 134 TRIAL OF FENIAN PRISONERS. - • all the benefits of one who is so charjjed, in wliich case only those witnesses would bo called aiijfunst him whose names wort' on the bacl; of the indictment. His LoHnsiiip — Well, iny nilinu- with regard to the two last objections was very emphatic — that he is answerable for the con- sequences of all the others ilid if he was there to aid and comfort them. Mr. M. C Camkkon — 1 further take exception to the charge, that your lordship slinuld have told the juvy, that there was any evidence to prove that the prisoner is a . Hizen of the United States ; and I submit that the citizenship m«ant in tne statute niusi bo proved as constitutino^ citizenship in a foreign country, and that as the prisoner's statement is, that he is a British subject, 1h must be indicted as such. ilon. Mr. CamuROn — Why should his statement that he is a British subject be better than his other statement, that he is an American (utizen i Mr. M. C. Cameron — I submit that [the Crown is bound to prove the fact of citizenship. Hon. Mr. Camkron — V»'ell, we take his own statement as pioof, although we wo\dd prefer that lie should be tried as a British subject rather than as an American citizen. Mr. M. C. Cameron — I do not like what your lordship stated about clearing away the mist that ingenious coimsel had succeeded in throwing around the case ; but I do not raise this as an objection on a point of law, although, a remark of that kind was perhaps more prejudicial to the jirisouer than the most direct charge against the law. Hon. Mr. Camrrun — Perhaps my learned friond does not like to be referred to as ingenious. lliA LoRDHiiH' — The remark was not applied to the learned counsel. If he thinks ho he is mistaken. It was in reference to the mist that often surrounds eases of this kiinl. Mr. M. C. Cameron — Your lordship will recollect that you spoke of the mist thrown around the crro l»y ingenious counsel. His LoRDHiiip — 1 did not say " ingenious counsel," but I tliink it is 80. I should be doing your talent great injustice if I tihould think otherwise. TRIAL OF JOHN M'MAHON. 135 lUe kink ut.l The jury returned to the court-room about seven o'clock, after an absence of tlu'ce-quartei's of an hour. The clerk, liaviiig cailed over their nanics, asked them if they had agreed upon llieir verdict, wliereupon the foreman replied that they had agreed \)pon a verdict of Guilty. This verdict having been recorded upon the indictment, Hon. Mr. Cameron — I move, my lord, that th.e judgment of the court be passed npon the iirisoner at the bar. Ills LoKDsmi' — John McMahon, have you anything to say why the sentence of the court should not now be passed upon you for tb" felony of which you have been convicted? The I'uiHONKR (who?e voice was at first low and broken, but afterwards firmer and more distinct) addressed the court as follows : — According to the testimony given against me, if it was true, 1 would have nothing to say, my lord ; but I do declare here that 1 am unjustly charged and convicted — I am not guilty. At the time that Milligan and Hu'.livan swear that I wm at Fort Erie, before you and God and all present 1 was in' liufl'alo. I was honestly going on my journey to Montreal, and I am not guilty. I beg your lordship's pardon if T say anything that is not pleasant or agreeable. If I was guilty 1 would sid)mit, but if you execute me my blood will cry to heaven for vengeance upon those that are the cause of my death iiuioccntly. I was going after jny brother's aft'airs to Montreal. T left my own house at halfpast seven o'clock on Wednesday the 'M){]\ of May hist to go on that journey I took the railroad car at eight o'clock, went to bed, came on my way straight, and arrived at ten o'clock <»•« Fi-jday night the Hist of May in Ihift'alo. 1 went to the Franklin House, stopped there, had i)ed and breakfast, went to visit my friends, Mr. ^^aurico N'anghan ami his brother Dan. V'aug'ian. It was the moment of nine o'clock when I crossed over on the ferry-boat on mv way to >b)iitreal. I was looking for the railroad otHco to get a ticket, but what with one excitement and — (here his words were inaudible) — so 1 am innocent my lord. I cannot plead guilty. T am innoe(«« His Lordship — John McMahcn, the jury have found you guilty on evidence which, I think, adm.ts of no doubt. That you were a participator in the acts of those people, that you forwarded their designs, and that you were willing to lend them all the assistance in your power, is but too clear ; and it is a painful fact that you, a clergyman of a church whosf creed is peace and whose ministers in all ages and every land — to their credit be it spoken — have done all in their power to prevent bloodshed and war, as it became them to do ; — that you, a clergyman . of that church, should stand in the position you occupy to-day. So far you have forgotten what was due to the professions of your church in that respect, iind so far as you gave countenance to those men you forgot the mission with which you were charged, and that was peace. If you had ct)me here, as you would now lead us to believe, (piietN to administer the consolations of religion to the dying man, anU 'o whisper into his ear forgiveness of his sins, as you no doubt honestly believe you have the power to do, you would not have stood in the peril you are now exposed to. If you had waited till there was a conflict, and then sought permission to cross over to perform your Christian mission, all you would have had to do to enable you to come here innocently, would have been to remain on the other side till you were told that something had happened — that there were dying men reqiiiring your religious offices ; and then if you had come across the frontier, declaring what your intentions were, I am sure there would be none to prevent your carrying cut your object. However inimical they might be to your church, however much they might detest t)'3 crime of thep.c people, there is not a man in the Province owh would have said no to your journey. IJut that^was not the way you came to this country. On the contrary, you came here «s a priest giving all the sanction you could to the acts and designs of men who had faith in your religious ministrations, who had faith in your church ; and they went on boldly in their unholy purpose, no doubt aware that you were close at hand to assist them if wounded and to give them forgiveness if they fell. There islittlo very little roaaon to doubt that. Now, that being the case, is it not plain that you should b« hold to a strict account for what you I TRIAL OF JOHN m'MAHON. 137 in RC, if tlo it ou did ; is it not sad and painful that one in whom those men placed so much rcliencc, one wlio they believed possessed snch great powers, should have given encouragement to wage wa'- upon us, to desolate the homes of our people, to plunder 'and rob and slay as ihoy did ? I have indeed a very painful duty to perform — one that I would gladly avoid if I conld ; but, I have no alternative, no discretion in the njatter. The doom of the law is death for the crime of which you iiave been found guilty, and I but sit hero humbly to carry out that law and to pronounce its penalties. If you have anything to say why mercy sli<.uld be extended to you, you will have time to apply for it. If in the course of the trial 1 have sail! a woril that oualit not to have been said, vou will have ample opportunity of complaining of that, for though the law ex past facto authoiizes me to sentence you to immediate execution 1 will not exerci. the judge who tried these cases to order the execution of the sentence sooner if lie thought it necessary to do so. In my opinion it is not necessary. I do not think it is advisable to do an/thing hastily in connection with these trials. A gross outrage was done upon us ; but we arc n people win love to be guided by law, and law is never hurried in uny of its operations. So that in that view of it you will have the full term whi>li shall elapse before the carrying out of the sonteiice in which to make any complaint you may have to urge .•gainst anything I have directed or charged as law, or against any other mistake that may have been made in respect to this trial. If F have fallen into any mistake in my view of the law, I shall be happy to lio puv right; if I have made any mistako in regard to the facts, 1 shall be as pleased as you to find that I am wrong. The execution of the sentence will therefore be delayed, or rather the time will be extended,so that you will have opportunity to make aj»plication if you wish to avail youraelf of it. You have had a fair and impartial trial. The jur)-, I think, have come to a right conclu»ion upon the facti li 138 TRIALS OF FENIAN PKI60NER8. * 1 Iwi presented to them ; and as for the law, I may be wrong in the view T take of it — for man is always fallible — and for your sake I hope 1 am. I ha\ no desire to harrow your feelings with any further ob- servations. Anything that I can say would, T am .iware, have little effect upon yon as yon stand there; but I must add this — that if you had acted as a clergyman of your church is expected to act, as clergymen of your churdi have acted in all ages of its history, you would have been earnest in dissuading those men from engag- ing in what they did, yon woidd have set your face resolutely against the undertaking, and yon might probably by your determined oppo- sition have prevented them froiu taking one step hi their unlawful designs. • * say that you failed in your duty, and that you for- got your hoi vfion, when you failed in that respect. As T said before, yon will have time to apply for a full consideration of your case by my br otherjudges if any error has been committed here by me ; and you will have time and opportunity also, before your sen- tence is carried out, to apply to your Maker for the forgiveness of your sins. The sentence of the court is that you, John McMahoii, be taken hence to the place from whence you came, and from thence, on Thursday, the UUh day of December, to the place of execution, and that there yt)U be hanged by the neck till you arc dead — and may eiit his head forward for a few minutes, as if engaged in prayer. Mr. Thurston, the American consul, was present during the pro- ceedings; and Mrs. Lumsden, a young and lady-like j»ersou, sat near her husband's ounsel, and, as might naturally Im' siijtposed, she v/as bi'ried in y^rief and anxiety. Bishop Coxe, <>f Buffalo, and several Ameriran gentlemen, ami the Rev. Dr. Fuller, Rev, Mr. Darlin;/ auti a number <»f other clergymen, of T(»rt»nt<), were also present, aui! a^)peared to take much ii\tcrest in the proceedings. The Clkuk then called the following jurois, w iio answered to their • nan)es, anf hostility in the Province with the same intent. — And it will he contended that though weslioidd not be able to show that the pil.-oner ever carried arms on the occasion, and with tlie design alluded to, still there will be sullicient evidence laid before you to lind him guilty of one and all the counts; there will be evidence to show that he was takiag part with the I'enians — sym- pathizing with them, acting in conceit with them, and eomlucting him- self in other ways which could justify you in coming to the conclusion that he was one of that party who so entered Canada and con- tinued in arms, and committed acts of hostility, 'i'he lirst evidence we will bring before you will show the prisoner to have been walk- ing with the invaders, in con\j»any, <'r apparently ii> couununication with a HKiu on liorsebaidc at Iheirluad, in the villiage of Fort Erie. That was early in the dav. Again lie will be shewn to have been in the Fenian caujp, »>n N"ewbigging's farm, during the day, about dnsk or dark, lie was thereto all appearance one of themselves — talking, and apparently advising with tin; oflhu'rs, and being evi- dently in authority and exercising a certain amount of control. For the purposes of this trial we contend that it matters not whether he was in command as an officer, who intended to ct>uduet the military niovenients, or whether he was there as a clergyman, administer- TRUL OF DAVID F, LUMSDEN. 141 ing spiritual consolrt <\ advice or encouragement. Subsequently we find liim in conversation with Mr, Newbigging, touching pro- l)crty taken by the FenianH; and it will be shown that lie had a certain amount of influence witli the Fenians to enable him to do certain things to benefit the Newbiggings. We will prove this to you that on one evening he arranged to invite himself" aiul the leading ofKeers of the party to the Newbiggings, and there took tea, and that on leaving he expressed himself in such a way as led to the supposition that he was one of them. It will not be pretended, I think, that he remained with the Fenians during tlie nights of the 1st and 2nd of June. The next evidence 1 propose to ofler brings us to the morning of the 'Jn* to show that he claims, or ilid claim, to be such ; otiu'rwisc we could not bring him before you nmlerthis indictment. In this, as in all other trials, the Crown is bound to make out a case. I do not know what the defence nuiy be, but the Crown will, at all events, be bound to make out a case beyond all rcasoiuible dotd)t ; aiul if such reasonable doubt should remain on your minds after having heard the evidence, then you are bound to give it in favor of the prisoner, and actjuit him. Ibit if we make out for you a clear, satisfactory case, beyond reasonable doubt, it will be your duty, remembering your oaths, to give a verdict in accordance with the evidence, and find him guilty. In deciding on your verdict it will be your duty to consider the eviden<'e fully, fairly and imjiartially, without being biased on the one side or the other by anything which has been said to you or which you may have read in the newspa- pers or elsewhere, I will now proceed to call witnesses. 142 TRIALS OF FENIAN P/IISONEBS. :? n I GEORaE Dagger was the first witness called. Mr. M, C. Cameron — I object, my lord, to this witness, as his name is not on the back of the indictment. His Lordship — I over-rule the objection. Mr. M. C. Cameron — I may as well state hero, my lord, that I intend to object to all witnesses of tlie same Icind that may be produced, because [ submit that ilieir names should have been placed on the back of the indictment. George Dagger was then sworn and examined by Mr. Mc- Niib — I live at Fort Erie, and 1 suw the prisoner on the Friday morning, when the Fenians first came over, on the garrison road, about two miles from the landing place. He was shaking hands with Fenian officers, who were on foot, and who wore swords. He then walked awoy, and 1 did not see him again till I came to Toronto. Ttiere njust have been between six and sevev hundred men there then. Cross-examined hy Mr. M. C'. C.vmeron. — I am a laborer ; I re- side at Fort Erie, and work on the Grand Trunk railway. I was ealleil up from my bed at three o'clock on the morning of the first of June l>y Mr. (ioldie, of the railway, who iaid that the Fenians were coming. Mr. Cameron — Well, what did you do then \ Witness — I stayed at home to look after the children. I stood on the ontside of the door doing nothing. J was not hilling away anywhere that morning, but I live in a lonesome place. (Laughter.) I did not see the Fenians land. When 1 saw them they were coming t»y ny door at about hali'-past ^i\*i o'clock in tlu; nioriiing. 1 was standing outside about half an hour before they <'aint' along. 1 got breakfast l»cfore they came. I took a bit(! of bread and some tea before they came up. I .saw about live or six hundred Fenians coming up the road ; anil one of them was on Dr. Kempson's horse; others were afoot. They were on the road «»n the Hats, about as far away from me us from here to the othersideof the courthouse. 'Hjey came up in military order and halted. .All the citizens about my j)lace ran away. Mr. M. C. Cameron — There is a strange story about your liid- ing in a hog-pen. (Laughter.) TEIAI. OF DAVID F. LUMSDEN. 143 Witness — That was not the case on Friday. It was on Satur- day. (Langhter.) Mr. M. C. Cameron — Then on Friday you were disposed to do nothing, and on Saturday you got into a hog-pen, (Laughter.) Witness — Yes, after doing my duty like a man as long as I could, I ran off, and if you were there you would get into a hog- pen too. (Jj'uighter.) f saw the prisoner first on Thursday, and he was pretty well " tight." I saw him at Mr. Smith's taking a glass of litjuor. It was not at Smith's, but at Seth Harris'. I saw him take the Tupior. I know the }rrisoner because he wore a long coat and plug liat. I saw no othei-s there with that costume — people around there can't aflbrd it. (Laughter.) I was at Seth llan'is' on that Thursday morning between eight and nine o'clock. T do not know who else was there. I drink to excess one© in a while, but 1 was not drunk during the Fenian excitement. After leaving Seth Harris' I went to work. Tlio coat the ((risoner had on that morning was larger tlian that he wears now. I wa* taken prisoner by the Fenians about ten o'clock, but they let mo go when I told them the British troops were coming, and that they liad better clear. The Fenians came u)» like a crov.d of black- guards, as they were. (Lajighter.) I then thought it necessary to go and protect my children. T felt tliey were not safe, and feel they are not yet. I saw the Rev. Mr. McMahon tlierc also. 1 am sure [ saw the prisoner there Avith the Fenians. I didn't know the prisoner's name, but he is the man I saw there. I saw liim after- wards in jail in May or June. Mr. M. < '. Cameron — WHien did the Fenian raid take place ! Witness — The second of June, 1 think. Mr. M. C. Cameron — .\nd yet you said you saw the prisoner in jail in May. That will do. Examined by }>\r. McNau — About 800 or 900 Fenians came over the hill on serving this I felt insulted and told him if he thought 1 would betray him he \vM belter ni>t tell me any more; but if he had any more to tell nn> to coine to the house. We went into the house, andhesaid if 1 would give him |25 lie might be able to get thi; horses back, because its he vas amongst a strange lot of fellows he could only approach tlnin by bribery. 1 told him caiulidly that 1 had given all my loose money to a friend to take care of it for nu'. ILe asked for an onler on that i>erson for the money, which I refused. He made no fur- ther demand, T then told him that as his men had been anxious to sec the red coats they would be gratified if they waited a little w hil(\ I told him that if a tight took place I would stand by m\ property ; that if 1 fell 1 woidd not miss my horses, and that if I survived 1 knew the Government would make good my losses, 1 then went to the camp and the prisoner said lie would do all he could for me. He suggested that 1 she ild invite the officers to tea, T TBUL OP DAVID F. LUMSDEN. 147 as it miglit do me good in getting back my horses, but I refused, iis my wife was ill. He then invited the officers himself to take tea at my house, and Col. O'Neil, Col. Starr, Capt. O'Leary and the . prisoner himself, therefore came up to tea. The conversation at the lablo was general— nothing being said about the object of their visit. The prisoner gave me a jirotection paper — as follows : — "June 1st, 1800. "Let no man touch anything oi? this estate. By order. "Col. STARR. "Indorsed by his chaplain, "B. F. LUMSDEN." Soon afterwards I saw some parties going into the stables, and I went out to test the value of the protection paper, but when I did so I had no occasion to speak to the men as they were coming out of the stable. The parties remained to tea about half-an-hour. lit the evening I heard that the Fenians Imd driven oiV my cattle. 1 spoke to the prisoner to do what he <• did to get them back. He at first refused, but then complied, and w ent and pointed out Col. O'Neil, who gave me a verbal order to take my cattle away. When I returned to the house the prisoner was in the company of Mr. Murray and Mr. Smith, of Buffalo— friends of my own. As botli gentlomen were about to return to Butialo tin; prisoner proposed to go w ith tlicm, but whether be went or not [ do not know. On the following morning, the 2nd of June, 1. saw the prisoner at the camp ground. T remarked that the aspect of thinu's had chanc-ed siiire yesterday. He replied that he had been led to l)elieve the Fenians had lL.'O,000 men in Canada. 1 then told him that as li(> had a«.'ted the part of a friend to me the previous day 1 would advise him to jret out of the country as soon as possible. He said he had done nothing to implicate him ; that In^ had come simply to report mattei's as a reporter from some newspaper. T did not liii.l the Frni;uis in the camp in the morning. Cross-examined hij Mr. (Jamehon — The prisoner only acted the part of a friend throughout. If I had been in his jinnitiun on Sa- turday I might have made my escape. Joseph NKwnioaiNO sworn andexamiaeJhij IIoii. Mr. Cameron — I am the son of the last witness. I saw the prisoner in the Fe- 148 TRIALS OF FENIAN PEISONERS. Ik nian camp on the first of June, and w^ion I was speaking to Col. O'Nei! aljout protcotion for my house h ■ came up, touched mo on the shoulder, and said lie woiild make it -il riofht. After this the Fenians took fourteen of our sheep and kiiied them. They had our (•attic also hat gave them back. The prisoner came with me to our house, and when .nhout crossini; the britluje a Fenian presented a li;iyoiici, and refused to allow us to pass. !VIr. Lumsdeu then ])ut up his liand; said ho waslhe ohaplain ; that it was all right. Some one from liehind sung out, "all right: pass those men," and we were allowed to pass on. Mr. Lumsdeu told me he was no Fenian ; that he had ov.ly come for the purpose of doing good. 1 said that if that was his object it was certainly j)rais('W(n1hy. He did no* explain his position as chaplaui. \ introduced him to my father and ilid not st't' him again. CiTfiH-exauiincd by Mr. Oamkrov — The sentinel at the bridge did not seem to know the prisoner, but when the party from behind said " jmss those men," we were allowotl to proceed. Tiii)M.VH NKwnioaiNo sworn and examined hij Hmi. Mr. Came ron — I mpauy with my father, but me as a Fenian prisoner, i saidti* him when he came on board that I was surprised to see a respectable looking n)an like him charged with Fenianism, and asked him what account he had to give of himself. He rcplieu that he was not a Fenian, that he had been in the Feniai' camp, but that he had gone there thinking it was his duty to take care of and comfort the woundeil and dying, and that be was a minister of the Episcopal Church. I asked him for proof of hi-i being a Protestant clergyman, and he handed me a letter from Bishoj) Potter, i said, after reading it, that that was all very well; but 1 could nol understand how a Protestant elergymau could be of any use among such niflians, whom, if they had any religion at all, were Roman (/atholics. lie said he had passed hin>- self otV as a Roman Oatholic priest. I asked if he knew anybody in Fort Eric, and ' " said he knew the Rev. Mr. itreenham there, and could get a cerliticati' b'om him that he was a Froteslant clergyman and not a Eenian. When we got to Fort Eric I allowed him to go to see Mr. (ireenham to ijct the cirtitlcate. He came baik, autl I found with some ditlicnlty that he liud not been tu see Mr. Ureenham. JotSPH ScHRVKK »woru auJ examineil bij Mr. McNab — Hire at Ill 150 TRIAL OF FENIA.N PRISONERS. 1 ^: i it « ; ! ^ 1 ; 1 ■ Fort Erie, and mjus acting- us. chief constable there on Saturday, June 2nt| 1 arrejited tlic prisoner, and put Iniii on board tlie tu<^ Robb. John Medcalk sworn an { exandncd by Mr. Ilarrison — 1 l)elongto the Queen's Own Rifles, of this city, and wasatlhe Ridgovvay fight on tlie :2nd of June. Thu governments of Canada and the United States wort' then at peace. The (iueen's Own, tlie i;Uh Battalion, and two ritle companies wore attacked by a body i>f anr.cd I'^onians. I saw Ensign McEachnMi lying wounded, and, afterwards, dead, and J saw a man shot dead at my side. J saw the prisoner in the jail. lie told me ho was an .Vmcriean citizen ; that he was born near Edinburgh, Scotland ; that he was an Episcopal clergyman, and had resided at Nunda, New York State ; that he had come with the Fenians to see if he could be of any use to the people iu Ca- nada, and strive to wave property ; that he was arrested on the bank of the river, at Rlaek Rock, wliile waiting for a boat to carry him over to UnlValo; that he had been to see Mr. (jreenham, but that he was not at home, and that he was not a Fenian, anil did not be- long to thuni, [ held out no inducement to him to inuke the above statement. The evitfence for the pro.iecution being closed, uitnessea were called for the defence. Jauks Fi'i.LER nworn and i.iunii>>eJ by Mr. M. C. Cameron — 1 am a physician, and practice • ledicine iu Syracuse, Xew York, I liHxe known the prisoner since the fjth of June, 180'>. He held the poyiti' .. of Rector of Trinit\ Chnreli there. He left Syracuse about the middle of hist May. 1 was senior warden of Trinity Church, Syracuse, and was intimately acijuainted with llie prisonei. 1 am an Englishman by birth. 1 believe the pris<»ner is a Scotch- man, i hiring tlie tiuu> lie wan in charge of that church he was decidedly anti-Fenian. He was accustomed to drink too much at times. Hi* character otherwise was good. He iefl voluntarily and against an urgent remonstranee by the parish. Hon. Mr. (.'amkuon — I object, my lord, to tlie>e statements of opinion being rereived as evidence, Idchusc they refer to a period long before the lime of the Kenian rai Cameron— >1 Hubiuit that 1 have a right W put u di- TRIAL OF DAVID F. LCM8DEN. 151 rcct question t.) the Avituos to ascertain wliat the prisoners views were on tlie Fenian <|Uestion liet'ore he left Svracnsc. lion. Mr. Camkuon— I still object to allow as evirisoner is iharyed. Ills LoHDHiiie — J must inle a'^'aiiist the !^Toun\ the prisoner"-; counsel. W iTNKSs — When the prisouor left Svracnsc he was "'oinL' to Ninida, in LivinL^stone county, in the same state. CJkokuk MoitoAN I III, I. sworn ui/'f cratnined h>t Mr. M (' C'dwtmm— i reside in Syracuse, aiid am the rector of St. Paul's cliurcji there. I have known the prisoner since the autinnn of \M\. I was a rlassmate of his iu ITarlfortl Colle,!L;-c from that titne lill the suninier of ist7. and wason intimate lcrm> with him. He can M' from Kdinlniri.h, Scothin I. From I«I7 I did not >cf hiin f'M- eighteen ycjii'.-. Iii.luly, ISlir), lie canu' to Syraeu-c to ocok a sittiation there. His character during; all the time I knew him was entirely uiit xceptionahle. He was a man not at all likely ',to join the Fenians. When the citizens of Syracuse heard of his arrest they were thiniderstruck, and thou'-'i it incrediM-'. Tlicie uas mu( h c\ciiciiicnl aitout it in thi- i 'i> IJistioe ('<>\K sworn and cxaiuii '■ M ''. Cmueron I am tlf^ Bishop of tiH< Episcopal ('htir< n, Diocese of New \'..iK. ,My^im|irc.->iuii i^ thai tin- pris" > Bufiab in June last to answer my citation. He had reiiderc' tiimsejf suijecl to discipline f..r inteinpcrunre. IIi-> Urst aj>pe«rancc at fklfFah* Mas before this, of his own a< cord t" eoin[>lain of him If with humiliation and cimiritiou for iiilemperaiiec, and he n'cp . h{^ truly sorry ami penitent for his misconihn I. This was, I liiink, in March of the present year. I'indiiiK him so penitent, and -upp. '^■ iit.t;' that this was his tirst fall, T sent him to Xunda, intei I to allow him to reiinin llierc if he c<.Mdu<'ted hiniself well. uninst imiiiprliHtely aftei. cmitrary to m\ e.\[H'clationH, he nuMConducted liiniself in a similar way airain. I was then obliged to tjive notice to i;isliop I'ottcr, of New Yoik, who wuh hi;( Diocesan, of the con- duet of ]m presbyter. On the OOth of May I hud an interview with 152 TRTAL OF FENIAN TBISONERS. ]' • Lniiisck'H, ami aflvi^cd him to rc(|UC'st a Husperision and not be tried lor Ills ottcncc. \ also sent a Itittcr to liishop Potter, advising the latter to suspend him, as liis usefuhiess as a clergyman was at an end. . It is my impression that the ju'isoner said a( this inter- view that he thonghl of going to Canada to get a situation, lie also said in.' would go and live at Fort Krie, as it was cheaper to board lliere than in BuH'alo, Cross-exaiiiincd hij Hon. Mr. Camkiion — When the prisoner was", at Hartford I was rector of St. John's church there, f always heard him spoken of as a clergyn)an of great usefulness. Mr. ((KKKNHAM nwoni and examined hy Mr. M. C. Cumerou^—l am the rcetor of lb- church at Fort Krie, The prisoner came to nu' on the evening < f the Tuesday before tlu^ raid, and introduced himself to me as a brother clergyman from the States. ] asked hiiu to walk in. ff • told jue he had come to JJullaloto see liishop C'oxe, and bad soiiu thoughts <»f ap[)lying for a churcli in the dio- ress to which I belonged, lie did not stop with mc that night, but said he had better go back to Buffalo.- On Wednesday morn- ing f saw him in the street at Fort Va-'w. [le presented a disrepu- table and dissipated appearance, and I avoided coming in contact with him. On Friday morning, June 1st, I saw him in front of my house talking excitedly and trying to induce the villagers to resist the Fenians. He told the villager.s to shoot them down, and said that even the women would tight. "I called t»ut to him and said, "Mr, Lumsden you are giving very bad advice. It is perfectly absurd to think that a lot of unarmed villagers could resist these men. If they bhouhl happen to kill one of the Fenians it would be the signal for a general massacre." lie said, " Well, my Scotch blood cannot stimd it," and he went away. On Saturday, I was taken prisoner by the Fenians, and so was Dr Trowbridge, of DuffaK). While a prisoner, 1 heard Gen. O'Neil talking with !)r, Trowbridge, of Tlnffalo, and O'Neil said to liim that he knew the prisoner and did not wish to have anything to do with liini, as he was a Dritish spy, Mr, IIakkiso.v — We hab, 1 made the remark, at the time, " I am surprised that man was arrested." Jamkb Clakk sworn and examined bi/ Mr. M. C. Cameron — I think I saw the prisoner on the 2nd of June, My impression is that this is the man. 1 never saw him before or since. I saw him as he was leaving the ferry boat, W. M. Thompson, on Saturday morning. I was about to take the boat for Buffalo at the same time. He made a very strong impression on my mind, because he said tome, " you are safe now, Mr. Consul, the troops arc here." ! think a steam boat had come down there with a small force of vo- lunteers before this time. Hon. Mr. Cameron — The Wclland battciy was not there till the ufternoon. The Robb came down, 1 think, befon; twelve o'clock — how much before I do not know. Mo3Es Sr.MMEUs sioorn and examirteU by Mr. M. C. Cameron — I reside in Syracuse, and publish and edit a newspaper. I hare known the prisoner since October 1865. He wa« then rector of a church in Syracuse. He was intemperate during tliat time ; in other respects he had a good character. 1 was acquainted with men who avowed themselves as head-centres of the Fenians there. I know that Lumsden was an avowed opponent of Fenianism. I heard of his arrest with a good deal of surprise. He was well known in the city. I got up a paper. signei Hi vice of the Fonians, if, as an act of grace and courtor.y, he invited those officers l'»tr;i. X(»\v, I wcnild ask yuu, as reflecting men, 1o consider whether there was anythinii; in that cireunistanee to show complicity .>:(ii t!ie Fenians, wlietiier ii w.is natural or nniiatnrnl that the ])risuner should have so acted, wlirtlier it indicated an in- tention on his |>;iit to do wrong, or whether il indii ted just what a rea,soiud)le urn, liki' Mr. Liiiusdeii, uiigliL have suggested for the purpose of doiuj^ a service \r, Mi-. Xewhiggiug. If it was an eijui- vor-al position in whi(di tiiC prisom-r placed himself, and simply fMjuivocal, then the jury is JMiur.d, under the ol (ligation they have tfiken, to !ie(piit hini, l)Ce;uif law, and you are hound to t)b- scrve it. Now, jtassing to a further eonsider.'f.tion of the facts, what do wo find? Thnt on the night of Friday the 1st of -lune, aeitord- iiig to Mr. Newbigging, Mr. Lumsden, the piisoner, went fivray from his house in eompanv with Smith and Murray to go to IJuf- falo. What dt) we find in support of th;it statement J Why, we find by reference to the buidcs of the Til't House in Ibilfido tliat the nanui of Mr. Ijumstlen a])p -ar-; tiieic i . his own handwriting, iu sueli u j.jsition that it e()uld not have bet n put tkere tinless at m late hour that day ; and we find in additi(Ui, tliat on tli" following niorning, Saturdny, the prisoner retnrneil to Foi"t F.rie and was seen by Ml'. l>lidv(! landing from the tt'rry-boatjrHlir.-t observation being *' Wc are safe now,*' because he saw th;ttsome iiritisu ;^oldiers were then ])reHcnt. Yon will id)servo ther-fore that nt the time the bat- tle was g«>ing on at JM.lgeway the jirisituer was not and eould noi have been there, if tin- statement^ made by .Mr. 1 lodges and Mr. lUake areet>rreet, ani that he hail no hiiuil whatever in that aet of fii»«tility. On tlie contrary he nnnle the de(daration then that he WA8 no Fenian, that he was desirous of giving all the assistine«' in his power to the ninhorilies on this side, mid tleit his ln'art i.nd KonI were witli ns in our etlbils to v\]yr\ the invad<'r, W'«'re there any other eirenniHtane<'s to show that these expre^-*ionH truly indi- TRTAT. OF DAVm F. IXMSDEN. 163 I't of (1 Ik- ill liDtt inly in all res- poctt. except for his unfortunate hiil)it of intemperance; — I say, we liave it as a lamcitahle fact that Mr. Lumsden had lapsed in rc- n'ard to sobriety and occupied the position of one wlio coidd not i-ontrol liis desire for stronj; driidc. In ('onscquen< e «tf that fault, he was summoned by liis Bishop to IJuffalo. lb- v, out there and afterwards crossed ovi-r from Ihdfalo ti> lM)rt Kric to see the Itev. Mr. Greenham. Mr. Lumsden saw that <;-ontletnan on the 21)tli of May, and was at his place on that day, afterwards returnintc to Buf- fi. lo and havini; an interview with liishop Coxe on the HOth of May, Hceordiny; lo :i memorandum entered in IVishop Coxe's book. The prisoner, who in (ousoipirnce of that unfortunate habit of his was no lontfer tittcd for usolulness in the place wliere Bisliop Coxe Inid sent him, appears then to have jijonc to Fort Erie to see whether lie I'ould not lind employment on this siiU; of the frontier. The Fe- nian invasion then took place, and there is evidence — although I think Lewis, who tfives that evidence is mistaken — that the prisoner was at Fort Erie on tin* afternoon of Thursday the Slst of May. In that statement the witness may be right or he may be wrong, but it does not signify whether the prisoner was there that afternoon or not. On the niglit \A' th<' lUst of May, or early on the inc ruing of l-'riday the 1st of ,Iuin\ the Fenians crossed over; but we tind that on that night Mr. liUnisden was at the Mansion n<>use in the citv of J>utl'alo, in company with Mr. Cook, wlto ^aid that he met Mr. I/umsdcn lu'tweeii nine and ten o'clock that idght and was with him till eleven or twelve o'clock. The proprietor of the Mansion House tells UH to»t that he had a bed and slept there that night. — Now, supposing that the ju'lsouer was Identitied with (he Fenian organization, wius there any ol'ject why he shouhl have concealed the fuft .' Was it not a matter of fact tlmt those who were engaged in it— O'N'eil, l(«>y and all of them — boaHte«l of it, were proutj of it, riftuntcd themselves in military uidforin if they hud uniform, p»- '"F Iftit TRIALS OF FENIAN PRISONERS. 1^ m m raded with music and banners, and sLowed themselves to be just wliat they were { Had Mr. liUnisden then, if he was with and of them, any occasion to conceal the fact { Had he any reason for resorting tu those methods for the purpose of covering his real de- signs ^ J.)id he go to I)ed on tiie night of the invasion and remaiji there till mornintj; just as a mere biind i Did he (-all any one to witness tlial he !>lept there th.at uiglit. in tirdiM' to make a ease that he might afterwards show to prove that he hail no connection with them { Xu, there was no preparation of that kind, for we find that he simply went to bed without drawing any special attention to the fact. Well, he is found the following morning at Fort Frie. If we take the statement of Dagger he must have been there at a very early hour; but in all probability that witness has mistaken some body else for the prisoner, bei'ause, aciMirding to Whitney, the pro- prietor of ttie Mansion House, he slept tlu're that night and left in ihe mo/uinu between six and seven o'clock. Then, he is afterwards seen in tli« village, and by whom ? IJy Mr. (ireeidiam, who says he heard him trying to induce the villagers to rally for the purpose lif resi**ting Ihe Fenians. Mr. <«reenliam irntkes the representation to him that that would be a wild proceeding, because a few uniu'med >illagers would never be able to stand beiore so many armeil n»en. Mr. Lumsden, in reply, declares, '* My Sootrh blootl is up," and then walks awa> . Well, he in next I'ouiid in tlie Fenian camp. Wliat does that I irt amount to { Was every num who was 8een in that camp a Fcuian i W so there are a good many then in court to-day who ought to be placed upon their trial *\»r ciMuplicity with the Feniaus. Why, it was u military spectacle, au»l like all such din- jpluys drew many to witness it; and so people fiom the neighboring country and many from BuffHlo canus tu gee it. We have the fact, then, that strangers were tliere — not strangei-^ armed lik«' the Fcui- auD, and participating in their deKigtiH, but strangers who had noth- ing in common with them, and who were then! nn'rely to gee what the Fenians were doing. Doeg tliat indieateauy crime, then— tlio mere liicl of men lieijig se«'!J in the Fenian eneampnu'Ut / If it doeg not indicate crime in the prigoner's case, what in it that does indicate that he was implicated with tliem ( Is it the »et of graeu lie committed in hia dosire t'> aggist the num Anthony i The cuurt 1 TRIAL or DAVIt) F. LtJMSDEN. iM will not allow us to give evidenceof the suspicions thus attached to the prisoner when he was with the Fenians in their camp, but you saw by the testimony of one of the Newbiggings that when the prisoner songlit to leave the camp ho was challenged by the sen- tinel and not allowed to get out. It seems to have been more easy to get into the camp than to get away from it. You will have seen from the evidence that though it was a military encampment the oi-ganization was not very complete. They did not keep it with that eare which would be observed in a regular military camp ex- pecting the approach of an enemy. Xo one halloing " Let that man pass," would induce a sentinel tu allow a person to go out of u camp if there was anything like strict watch and guard kept, or military discipline maintained. The y>risoner said '* 1 am the chap- laifl," but the sentinel did not know whether that was his characte'* '. r not, and refused to allow him to proceed until some one called out !rom behind to let him pass. Xow, suppose that the prisoner went there and ottered *o become chaplain and actually did become chaplain t».» that force, while his intention was, not to assist the Fe nians, but the British forces sent to oppose them — in that case you could not find him guilty of being in arms with intent to levy war against Her Majesty. Wm it an act of war to endeavor to induce Geu. O'Neil to surrender those horses l>etoiiging to Mr. Newbig- ging/ Was it being in arms with intent to levy war, was it com- mitting an act of hostility with intent to levy war, to do the same tiling^ These aie ([uestions which y<»u will have to ask yourselves ; and I submit that in the evidence ottered to you the t'rown has failed to show that the prisoner was with those men with intent to levy war on tlmt occasion. There will be Certain legal questions connected with this and the ])revious trials which will afterwards be raised — one of which will be directed against the whole proceed- ings in these eases. I shall submit that the act of Parliament under which the prisoners are being trieil is not now in force in reference to ott'ences t)f this kind, because it is superseded bv a later act of the Im])erial Parliament; and I shall submit that the two acts can* n«)t be allowed to stand together, but that the charges against these parties must be laid under the Imperial act. V»)U. howe\er, havei nothing to do with that question of law ; you are to deal oidy with v^ ■! 1 f 160 TRIALS OF FENIAN PRISONERS. ^1 fuct-s. One of the facts yon have to deal with is the intention of the party a(rcu;;o(.l in entorin^'the Province, and that is a grave (jues- tion for yonr consideration. Vou are to say, in view of the circum- stances lu'oiiLjht i»cfore you in eviels that there is no reason why he should dis- trust any o»ie because he belongs to a ditferent Christiim dcuomi- natiou from himself. He feels that if they arc gooil members of any bran(di of the Christian (dmrch, and are guided by the princi- ples of Christian justice and charity, they *'an not conscientiously convict one who had no intention of doing wrong, lie has there- tore otl'ercil no objection toany jurt)r because of the particular form of his Christian belief. Now the position in which you stand is, perhaps, n very painful one. It is represcntc*! throughout the city that there is no uso in oUVring a defeuco fi»r any man wlio may happen to have the misfortune to bo charged with complicity in th« TEIAL OF DAVID F. LrMSDEX. 167 •ilv my iitt Fenian raid ; that thcrf is a foregone ronclu«ion to cli?truf^t and discredit every such person, and that whatever exruse he mny offer, no matter how re.isonable, it is to he regarded only a*; evidence of his guilt. It i« painful when such is lound to be the fa<'t — when declarations nf that kind arc made on the streets — when the free source and fountain of justice is sapped in that manner — win ii men's minds are so prejudiced that the very i»eoplc of the country in which tlie trials are being conducted say it is impossible to obtain a fair and impartial trial. K that is the jmsoner's misfortune on this occasion, he will have to put up with it. You are the tribunal which the law of the land places there for the trial of the men who arc charged with complicity in that outrage by the Fenians ; but at the same time you arc there as the })rotector'- of the riglits and liberties of these men, not to destroy them. That is the posi- tion in which you stand ; and if the declaration is true that a jury ! 'tn in>t be found in this (rountr}' who, under any circumstances, will not give the benefit of a doubt to men charge*! with Fenianism, then I say the country lisis sunk so 'ow that it would be well if its government were overturned, for no hordfj of rufKans like the Fe- nians could by any possibility make it worse. But 1 hope it is not so. I hope I am speaking to men who feel an liouest desire to do j\isti(!e — not to men avIio resemble demons determined to destroy iiunnm life rightfully or wrongfully. If we are resolved to find the prisoners guilty in every ease, we would be worse than those men who came here with arms in their hands, fortliey would at any rate nu'ct us in battle nnui for man, where every one would have a chance for his life. If it is the determination «if the juries in tiiese cases to take away life at all hazards, then imlecd I sav there is no hope r)r the eounlry. I will hero refer to another nnixim of the law w|ii(d» shouM have weiglit with yun un this occaMion, and it is this — " .SVmy>r/* hiinh f«t ei'i'urein pnninDihr.r parte inlseriordla' >]uam, f.r jHii-tejuxlitUr'^ — it is always safer to i-rr on the side of acipiittal than on the .'•ide of piini^hnient r oti the part of nuM'cv than on the >ide of striet law. 'I'liat is a maxim whiidi the law eonrts lay down, and whenever it i«i violat»>i| there is a w runt; done far "reater than when a criminal puts a i>ist«)l at the lu-ad of another and bli»ws liis brains out. <«entlenieii of the jury, tlie prisoner at the b.nr stands 168 TRIALS OF FENIAN PRISONERS. 11 :»i i there to answer for his lite ; hut it is not he alone who stand* be- fore you to be etlected by the verdict you are to render. There are others who stand in a position of peril— others near and dear to the prisoner, others who have received their life from him, and one who has vowed to be his partner and helpmate so long as life shall per- mit them to live together. There are his wife and helpless children wlio at this moment are resting in dreadful suspense, anxiously thinking of what a British jury may do im-eference to tlic husband and father who has ehoseji to assume the position of an American citizen — thinking that in a British court of justice he will receive that fair trial vrhich it has been our boast to give to every man charged with crime ; and it is for you to say whether their expec- tations of that fair Briiish trial are to be disappointed by men who have forejudged their father's case, condemned him in advance to the gallows and them to misfortune, misery, and despair. I am very well aware that in coming to your decision it is not the innocent that you are to regard ; for if a man commits a crime he docs it with a knowledge that his punishment will bring punishment also to the innocent who are connected with or dependent upon him. — Nevertheless, those who strike the blow, those who condemn the prisoner by th(>ir verdict do an injustic*' upon the wife and children if they fail to gi\ e the accused the benefit of every reasonable douht. I appeal to you to consider the antecedents of this gentleman — to consider what you h;ne heard announcdl that those anteeedents have been in direct antagonism to the Fenian organization, and that tliey show that he had no feeling whatever in common with its members. Th(5n, having considered those facts, you will find that he came here with no intent to act in concert with those parties — you will find that although he wjis seen in their midst it. was with no design to aid Init rather lo oppose them ; and 1 sulimit that the ((vidence in not forthcoming, that if the prosecution should ransack the United States and Canada from end to end they would never find the first man to say, that Mr. Lumsden placed himself in communication with O'Ne.il or any "iic else belonging to the Fenian organization with a view of serving the infamniis undertaking in which they were engaged. It is said that, if innocent, the prisoner might )mvc brought the officcrp t Avould not have arisen in favor of the prisoner? (tcntlemen of the jury, your position is a responsi- ble one, and the position I occupy as the counsel of the accused is also a responsible one. I have felt great anxiety in regard to it, and should T fail to lay the prisoner's case before you in the manner which jiresents its best aspect to the court, and to you, I would be doing him a grievous wrong. T have, however, exercised my judg- ment, and employed what legal knowledge I possess, to the best of my ability. If 1 fail to place the case before you in its best light, vour resnonsibilitv is not removed or lessened on that account. If the learned judge on the bench, in the charge Avhieh he will pre- sently deliver to you, takes too strong aviewof the evidence on one side or the other, your responsibility is not thereby removed, be- cause whether 1 fail in my ject to cliarges of this kind. If enough of armed men were not caught to make an example of hy punishing t.Uem, I would liave let those who were noncotnbatants at least es- cape. Here, however, is one of them before you, gentlemen of the jury, and I submit that you must be satisfied that there is no reasonable do ubt that his story is false, when he says that he was not there to assist the Fenians; and that yt that those circumstances must create. You ha\c it in evidence that the whole village council of Fort Krie, with the exception of one man, went down to tlie Fenian camp for tlie purpose of soliciting protection for the place. Was soliciting protection in that way an act of criminality on their part ? No ; but here is a m.;n, who, be* cause he was heard to solicit protection for others in the same way, is accused of complicity in the crime of tliose men who levied war. God help this country if a conviction follows an accusation upon this ground! If that were so it would be the greatest curse that could fall upon the land that that outrage was committed at Fort Erie — not because of the injury done by the outrage itself, but bef'ause it will be shown to have so changed the minds of onr people as to make them forget the law, forget justice and forget mercy — to make them follow their own passions rather than to set the captive free when mercy, reason, and all he circumstances should lead them to lind a verdict of acquittal. I cannot see into your minds, gentlemen of the jury, and what 1 say to you may appear ridicu- , V IM; m TRIALS OF FENIAN PRISONERS. lou8 and absurd. You may have suspicions as to the prisoner's innocence, and when suspicion is entertained, everything, even th<* slightest circumstance, often tends to corrobonite tiiat suspicion. But I entreat you, on behalf of mercy, on behalf of those who are dependent upon this prisoner — I entreat you above all in the name of Justice— not to allow prejudices to weigh on your minds;, and to remember that a day of reckoning will come for all, and that those who forget mercy, may themselves be denied mercy when it will be needed by all. I will leave the case in your hands, feeling that you have listened to me patiently ; and I trust in God that when you retire to consider this matter you Avill weigh it carefully, honestly, and conscientiously, and not with a desire to condemn a human being to tht gallows, though he may have the misfortune to stand in an equivocal position. Under any circumstances the responsibility rests with you. Hon. J. H. Camerok replied for the Crown. He said : — May it please your lordship : gentlemen of the jury — My learned friend seems to think that it is rather strange on the part of the Crown tliat of the three trials that have taken place, two of them should have been of parties whom he terms non-combatants. I am sure he must have seen from the course of the former tiials as well as of this, why it was that the Crown singled out these parties to be first arrainsred before the court for trial. I am sure that the whole country and himself must fairly understand that reason, and that there can be no mistake in any quarter about it. The Crown selected the men who were represented to them as being the leaders and inciters of the men in custody. If these parties had been passed over, and the rank and file of the band had first been placed on trial, then the Crown would iiave been liable to the charge of impropriety, to which they do not lay themselves open by doing what they believe to be right and endeavoring to bring to justice those Avho were in arms and who advised and encouraged the invasion, before proceeding against those who were the mere dupes of the leaders. There is no desire on the part of the Crown to place upon the prisoners any onug which they ought not to bear ; there is no desire to deprive them of the benefit of any doubt which they should reasonably have, and there is no wish that they should first ,vliole that rown the 3 had t been o the open ing to iraged mere Drown l)ear ; which -hould TBUL OF DAVID F. LUMSDEN. 1T5 not receive every particle of conftideration and the advantagt> o*^ every right which the law, the constitutions of the ronn^ry and the principles of justice fairly give them. On the contrary, I feel that in the trials which have already taken place the Crown has not strained a point against tlie prisoners, hut has yielded as far as it could; and that in those which arc to come it will yield in the same manner, except when the counsel for the defence attempts to strain the law in favour of the prisoner and attempts to give it a construction which it will not hear, for in that case we will have to resist and explain the law impartially as it bears upon the case. My learned friend tells yoii tliat the prisoner was unfairly dealt with because evidence which was otiered here of his declarations and acts in a foreign land was excluded by the, court and not allowed to be submitted to you for your consideration. But my learned friend knov.s that the law of this country is not applicable to those acts in any case, and that no declarations which bear upon those acts can be or ought to be admitted in evidence. He knows also that the rule applied in this case is the same as is applied in a simple case of petty larceny. The rules of evidence are the same in all cases whether they are high or low, great or small cases, Avhethcr the consequences of conviction be merely a day's imprison- ment or the taking away of a human life. You and land the judge arc all alike l)0und by those rules of evidence, from which we cannot depart, and no appeal to your feelings or passions can in the least degree affect the ruling which the judge is bound to give in his opinion of the law, or the obedience which you as jurors are bound to give to that ruling. It is therefore vain to declare that injustice has been done to the prisoner when by a rule of law statements are excluded which in law are not evidence at all. The rule has been so clearly and distinctly laid down as to the dechu'ations a prisoner may make that it is quite enough to point to the ruling of Ihejudgc without referring to those cases in law where the precedents are given. Now, my learned friend has alluded to certain matters of circumstantial evidence in this case, and argues that evidence of this kind is delusive and should not be taken as sufficient to con- donin the prisoner. It uuiy happen that in one case out of a thou- sand.a mistake occurs and a man is wrongfully convicted on such ovi- hV warn 176 TKIALS OF FENIAN PKISONERS. ■I ! hi dence. That has happened and may again happen as long a>. fallible nifnliaveto pronounce upon acts which they themselves do not see. We all form our conclusions upon the evidence which is offered by our senses. We nv \ 1»<' mistaken as to what wo see — we mav not get the right versions of what wc hear. In all the transactions of life wc arc liable, with the fallible j\idgments of men, to be deceived. iHit it i^ no reason why we phould not believe ouroye-sight or our hearing, because some time our eye-sight may be mistaken or our hearing may lead us .astray. AVe arc not to apply any gen- eral rule t<. cases of circumstantial evidenco, but decide each according to the facts presented. You are therefore to ask your- selves whether the v-ircumstances which have t)een proved against this mail are trustworthy. Is there a doubt that the prisojier was at Fort EvW on the 1st of June, wh-.'.n tlie Fonians were there ? Is there a dvyubt that he wrote that paj)er which has been produced before you? Is there u doulit that he was present with the Fenia»i otticers at Ncwbigging's taking supper, and that he declared he was a Roman Catholic priest instead of a minister of that Church which it ought to be his glory and his pride to serve in ? 1'hf re can be no doubt in all this. It is established by my learned friend's own case, as well as by that of the Crown. It is not therefore a case of purely circumstantial evidence with which ynii have to deal, but one i i which n'.y learned friend has properly brought bcforo you the true basis upon which you must determine your judgment. Tt is (juite true the priHoner is charged here in three counts of the indictment — one with haviii;:- entered the IVovince with inteut to levy war against her Majesty ; the other with having contiuiiod in the IVovince with a like intent; and the thinJ with having committed acts of hostility witii the same intent. Any one of thcsi' counts is an offence which the law declares to be death, if guilty of one, the prisoner is guilty of all so far as ihc consequence of guilt is concerned. The crime is tl.^' same in each CH»e, the penalty is the same, and, gentlemen, h<- may beconvict<>d of each and .'ill (»f these counts without having actually borne arms or engaged in the cuitlict that took jtl.icc. Jle in eipudly as guilty a.s the prisoners wliiime with which he is charged; and it is not his part to show you tiiat he had not that intent. The law presumes the prisoner to be innocent, and unless we can prove him t<» be guilty it is your duty to acij.iit him just aa it was our duty lo put him upon his Iri.ii, after finding hiin in the circumstances in which he w.-is found. But. if he is to be ac(piitted upon a doubt, it is not a mere funcitnl doubt t>f winch y mission is peace. ]{r nays he belongs to the Kpiseopal Churi'h of the I'nit**! States, und according to his own statenu'nt. it was with the view of olfering spiritual couHolation to the wounded and «ly':ng that he went there among those people- -not to give aid merely tojlie njemhers of the organization, but also to tho»o of our own po->ple who might fall in TRIAL OF DAVID F. LUMSDEN. 1T» the confilct with them. Mj learned friend says that that was the prisoners object, but you do not find him making that declaration iu eveiy case and holding to it. At one time he tells Mr. Moles- worth that he is a reporter for the New York iltrald. Then he says that that ia not the case, but that he was seeking some mission in Canada. Again we are told, and we hear it with great regret of on* holding his sacred office, that his habits of life had brought him into a position in which he did not know what ho was doing, and it is given as an excuse why he should not be visited with the penalty due to the crime of which he is charged, that those habits had rendered him unconscious of the whole matter. Well, gentle- men, we cannothelp feeling that under any circumstances — whether he should go from that dock a convicted felon or acquitted of the crimo charged against him — it is a matter of regret that one v/ho wears the garbuf a minister of the gospel should have so far forgotten himself as to allow that enemy to steal into his brain whicli tends to destroy man altogether ; but, however much we may regi'ct it, we know that drunkeness is no excuse for crime. It would be an unfortunate thing if we should allow ourselves to say that a man, by drunkenness, places himself in a position in which he is incapable of judging of what he owes to his fellow men, and is freed from all responsibiUty for what he may do in that state. The law does not, and caiiiiot recognize drunkenness as a palliation for wrong-doing. Indeed, instead of that, it rather regards drunkenness as adding to the crime a man may commit. There cannot then, in this case, be any cxcusvi that from the circum- stance of habitual disflipation, the prisoner did not know what he was about and nhtMild not be held to account. But is it the case that ho was in such a condition ? AVas he intoxicated when he signed the document, taking upon iiimself the «tate and character of chi^U.. ' tl»e horde of ruffianfuvho came over to dtstroy us? Nm he »obor or not sober when he went amongst those people as a Roman Catholic prieHt, forgetting and denying the church to wliich he belongs? Was ho there aiding, assisting and comforting them, or was he not there for that purpose ? Did the belief of those people, thatke was there Ma minister ofthe gospel to counsel and advise them, •trengtlien them in their purpose and encourage tlicui to carry tire and sword amongit us \ Surely, if in his capacity bk minister of the IP 180 TRIALS OF KENIAN PRISONERS. gospel, he desired to do what was right, one would think lie would have told those men to abandon their unlawful desij,ni and roturn to the place from wl'tnce they canio. But it is for you to ju act in accordance with the convictions of truth forced upon us, und having done that we must bt; content t(» leave the consequences with the Ahnighty. You know your verdict, if one of guilty, can alone be followed by sentence of douth as prescribed ' TRIAL OF DAVID F. LUM8DEN. 181 5 had could trials le will hispcT cases* it the jifter rown pend who o the rii^ht, that for, li'oord- liuvo ■ take (xioiiH, malic truth IcHVO id, \( ribed by the law. You cannot hel}) that sentence, and the judg-e has no power to lessen it. You know that a verdict of acquittal will send the prisoner forth to rejoice the hearts of his wife and his children ; and we will be glad if you can conscientiously return such a verdict. We are all desirous, notwithstandino; that a horde of ruffians invaded our land and threatened to destroy our free government and institu- tions, to show that every man is sale in a Jlritish court and before a British jury ; and we have no desire unduly to press iipoii you one jot or tittle of evidence against the prisoner, wliile, at tho same time, we cannot allow the law or the evidence to be unfairly strained in his favor. If you tind in your hcart.^ a doubt, a reasonable doubt, as to his guilt, no one will rejoice more that he should have the benefit of it, than those whose duty it was to place him at the bar for trial ; no one will be more glad to see him restored to that position which those who know him told us he formerly occupied — an ornament of the church to which he belongs, no longer to be seduced from the path of morality and holiness by that demon of dmnkenuesH, which after all, is the root of alltlsc evil that has befallen him. His Lords!.. " then charged the jury, lie said — It very seldom happens in this country that counsel finds it necessary to remark to the jury upon the ruling of the court upon points of law. Your duty is to deal with the facts presented to yoii —mine with the law bearing upon those facts ; and I ran no more pervert the law, than you the facts, and do my conscience justice. The counsel for tlie (lefencc complains that T have ruled out evidence which would have borne in favor of the prisoner. Now, supposing a man were put upon his trial for stealing or for murder, would it be evidence that ho did not commit the crime, for another to come forward and say — " I have heard him express obhorrence of theft, and say that the man "who committed murder ought to he hanged." Indeed, mij^fht not this language be used in order the better to screen )»iin from the cotiscqucnrcs of his subsetpient act ? So it is in thid cju»e — evidence as to wliat the prisoner may have luid at a former trial, hjis no bearing upon the tiuestion as to whether he is or is not guilty of the crime rharced against liim. The law limits evidence of this kind to the re$ ffettta^ the thing itself. Everything that relates to that ttiing is evidence, but what occurred before that is not evidenct I i , 'i 182 TBIALS OF FENIAN PRXdONEES. Now by that rule the evidence offered by the counsel for the defence has been excluded and that ruling oui^hi not to be a cause of com- plaint to the jury, because it is not wrong. With regard to another statement made by counsel I never before heard it alleged that a fair trial could not be obtained in this province for any man charged with crime — I certainly never before heard such an allegation made in this or any other court in the laud. The prisoner at the bar is charged in the first count with havi^ig entered the province with intent to levy war against the Crown ; then in the second count, Le is charged with having joined himself to other evil disposed persons in arms, in this province, with intent to levy war ; and in the third count he is cliarged with having committed an act of hostility, with intent to levey war on Her Majesty. Now, as I have instructed previous juries, it is not nccessar\', in order to con- stitute the ortencc charged, that the prisoner should have borne arms on that occasion. If you find that some persons bearing- arms were in the Province, with that intent — and tlmt is the first thing you have to inquire into — and that the prisoner was aiding, assist- ing and counselling them, then he was in arms just as well as th« rest of those with whom he was associated. Suppose, for instance, that a number of parties entered into a conspiracy to murder a man or to rob a hoiise. Those who watched, stood on guard, counselled, or aided in any way, were just as guilty in the eye of the law as those who actually (.'ommittcd the crime. So in regard to this prisoner, if you Hud that he was there aiding, counselling and abetting those who were engaged in levying war, the law holds him guilty of the offences charged in the indictment. A number of armed men landed at Fort Eric on the Ist of June last, encamp- ed near that place, aid afterwards marched to Uidgeway, where Rn act of hostility was committed ajainst Uer Majesty. The first point is therefore made out, if you believe the facts, as stated iii the evidence. The next question is whether the prisoner waSjf there, aiding and assisting those v irties. What in the evidence lipoa this point? The prisoner wjus scon by 'he first witness, shaking hands with the officers in command — one ^js'iccially who was riding Dr. Kempson's horse, and thou with other officenij Msociutcd with him. IJe whs next tcon, at tht oatiip, waikiog ■ tKIAl/ OF DAVID F. LUMSDE2f. 188 atout, and it is for you to say whether he was there as a stranger as has been suggested, or as one acting with the persons in the camp. He was next heard of at Newbigging's, to whom he gave the paper that has been put in. Now, whether he was chaplain or not, in fact this paper is evidence that he regarded himself as having something to do with tlicm, in that capacity, and the rule of law is that, until it is satisfactorily explained and made to appear other- wise, a man is presumed to be what he professes to be. Thii paper then, which has been proved to be in the prisoner'^ hand- writing, represents that ho was ohaplain to that fonie, and that he endorsed the order ot one of the officers in command giving pro- tection to certain property. The Crown relies upon that as evidence showing that he was associated with them, and acted with them in tlic accomplishment of their object. Now, docs it satisfy you on that point, as lar as it goes ? The next point relied upon by the Crown is his invitation to the officers to take tea at Mr^ N^wbigging's house. Are you satisfiod that this f.ict establishes the prisoner's connection with them? The evidence in the first instanc* rather points to his having been in the camp, the first day and the following night ; but the evidence for the dcfcnc 3 seems to show that he returned to Tiurtalo in the evening. It i^•■ lor you to consider whether what he did on all those occasions bea ■.* out the idea that lie was of them, aiding them, stssisting them, and counselling them in tlie way cliarged. If the evidence does bear out tliat idea, then no matter whether he was there in the character of a chaplain or anything else, he is guilty of being in arms. Now, what is the answer of the defence, to that i The prisoner says tliat he bore A vcrj' respectable ch?iracter, that he was a clergyman of the Epis- 4-,opal church, and that ho coaducted himself very properly until Jie fell into the bad habit of intenjperancc. Finding that the habit over- powered him, he resigned his office at Syracuse, the people, however, wisliing him to r»Mnain. lie then sought and obtained employincnt nt Nunda, whore he thouiclitthat perhaps his usefulness would not be impaired ; but soon the old habit appeared, and the Bishop gave him to understand that lie wished to see him at Butlalo, From f ihese facts, gentlemen, you learn that the man felt, no doubt, that })K' was a kind of u vagabond on the face (»f the earth, and it isjust 184 TEIAL8 OF FENIAN PEISONEKS. w Vi possible that falling into those bad habits he got among those people not knowing r ightly what he did. But the law does not allow drunkenness to be set up as an excuse for crime, because, whon a man's habits lead him to do wrong, it is a voluntary act on his own part; it is his own misconduct that puts him in the way of doing a wrongful act. The fact that the prisoner contracted bad habits, is, however pressed upon you. and you will, of course, give it consideration ; and if the man was really intoxicated, of which there is no evidence, then you are placed in a position of some difficulty. The law does not alloAV drunkenness to be given as an excuse for crime, but no man of reflecting mind, will fail to s«c a* distinction thus — that if a ptrson placed himself in a position in which he "ommittedan act M'hich he did not originally contemplate it may become a question whether it might not be unjust to say that he is to be held responsible for all the consequences of that act. However, none of the witnesses speak of hun being intoxicated when he committed the acts charged as showing his complicity with those who were the criminals on that occasion. All of them point to his having been sober on those occasions — looking, it is true, like a man who had been dissipating, and who bore what is known as a "seedy" appearance. Perhaps ho was reckless, and that is the most that can be said of his conduct in reference to this question of drunkenness. Having made these observations I will read over the evidence, and otfcr any comments that may be necessary to make it clear. You should give it your grave consideration. It does not lie in the mouth of the prisoner to say — "I have been a good man, and was a good man before I fell into this trouble, and therefore I ought to be acquited." Evidence as to character should weigh with a jury only, when it becomes a question whether a man would do a certain act charged against him — not when the facts pointed to his liaving committed the act. If the crime appeared in so doubtful a light as to make it somewhat uncertain that the person charged committed it, and if that person could show that before he was so charged he bore a good character, then, evidence of that kind would entitle him to the benefit of the doubt. \)\\t if you foimd that a mail with a good character fell into the habits the prisoner seems to have contracted, then he was the sort of man wlio was TRIAL OF DAVID F. LUMSDElf. 185 prepared to do almost anytMxigthat fell in his way, and it was no excuse for him to say that before he had learned those habits he was a man who had borne a good character, and would not have . committed a crime. If the evidence leaves no doubt on your minds as to the guilt of the prisoner, it is your duty to find a verdict accordingly ; but if it leaves a reasonable doubt — not a fanciful doubt or ono conjured up by ingenious counsel — then it is equally your duty to give the prisoner the benefit of that doubt, llie counsel for the defence has alluded to the fact that the future prospects •f others, as well as of the prisoner, depends upon your verdict. Well, that is r. thing which you ought not take into consideration. One of the safeguards of society is that men have certain ties which operate in i estraining them from acts of misconduct. Men may be found who would willingly jisk their own reputations, but who would be sorry to have a stigma cast upon their wives and their children This is one of the securities for the well-being of society ; and when a man disregards those tics, and does wrong, although it i& true that the family suft'ercd according as the husband and father suffered, still that ought not to be taken into consideration in cases of this kind. A man ought not to be excused from crime, because he has a wife and children. No doubt, it is very lamentable that any of his crimes should fall upon them, but the law cannot help it, and he should consider it before he exposes tJicm to the danger. I will now read over the evidence, ui order that it may refresh you:* niemorios. Having done so, his lordship dismissed the jury. Mh. M. C. Cameron — I rcncAV my objections, my lord, that I took on the trial of McMahon, and make also an additional objection. It is, that as the rmi)ovial act 11 Vic, Cap 12, provides for offences against the Crown similar to this, it must overfido the Canadian act, which was passed previous to it, and under which these prisoners are being proceeded against. Iliri Loitnsiup — I will make a in'ti; of the objection^. The jury retired to consider theii verdict at twenty minutes to six, and returned at eight o'clock, v.ith a verdict cf Not Guilty. The prisoner was then discharged. ir At , n ■■: 186 TRIALS OF TENIAN PPJSONEBS. w I ill TRIALS OF OTHER PRISONERS. Toronto, Nov. 5, 1866. The court opened at noon to-day — His Lordship Mr. Justice John Wilson presiding. Benjamin Pahry, h youth of sixteen years of age, was put for- ward for trial upon an indictment charging him a.s an American citizen, and containing three counts, as in previous indictments, with having invaded this country, on the first of June, with intent to levy -war, &c., on Her Majesty. The Hon. J. H. Cameron, Q.C., Mr. H. A. Harrison and Mr. John McNab, appeared for the Crown, and Mr. Kenneth McKenzie, Q.C., Mr. James Fleming and Mr. H. B. Morphy for the prisoner. The evidence for the prosecution showed that the prisoner was arrested with the others at Fort Erie, and for the defence it wa.s shown that he came with the Fenians from Cincinnati, for the pur- pose of seeing his uncle, who lived near Fort Erie ; that he was at Kidgeway when the firing commenced; that a man asked him to hold his gun, and then ran away ; whereupon the prisoner also ihrew down his arms and retreated, Verdict- — Not Guilty. TuuoNTO, Nov. 7, 1806. The court opened at ten o'docik (o-day — His Lordshif) Mr. Justice John Wilsou presiding. William Slavin was placed in the dock. He was charged in the indictment as an American (-itizcn, with having invaded this country with intent to levy war, &c. Tlie Hon. J. H. Cameron, Mr. R. A. Uai-iisoji and Mr. J. McN'alt appeared for the Crown, and Mr. McKenzie and Mr. James Flem- ing for the prisoner. The evidence for the prosecution showed that the prisoner was armed with a Fenian ritle when he was arrested near F«»rt ]'>ie on the 2nd of June. Mr. McKenzie sul)iuitted to llic court tliut liicro was no (!vi- dencc to sustain the charges in the Indictment. The prisoner had not been proved to have been at the battle of Kidgeway, nor at TRIALS OF FEOTAX PEISONEES. 187 Fort Erie when Colonel Dennis engaged the Fenians, and as a mat- ter of law he could not be tried under the statute 29 and 30 Vic, cap. 4., as that Act was passed on the 10th of xVugust, subsequent to tilt time the alleged offence was said to have been committed. Hrs LouDsiiip overruled the objections, on the ground that the statute referred to was in force at the time the offence charged was committed, so far as regarded American citizens, but that it had been amended, and at once re-enacted, so as to include British subjects. Verdict — Guilty. Sentenced to death. Toronto, Xov. 8, 1866. The court opened at ten o'clock this morning — His Lordship Mr. Justice John Wilson presiding. Patrick O'Neil, a lad of eighteen years of age, was placed in the dock and put forward for trial. There were six counts in the indictment; the 1st, 2nd and 3rd charging him as an American citizen with having invaded this country on the first of June, with intent to levy war, tkc. on her Majesty and the 4th, 5th and 6th charging him as a British subject with lii^h treason. The same counsel as in the previous cases appeared for the Crown and for the prisoner. Before the prisoner pleaded Mr. McKenzie moved to quash the indictment on the following grounds : — 1. On the grounds of misjoinder of counts ; that under the first, second and third counts, he is charged as an American citizen under the first clause of this act. 2. That he is charged, in the fourth, fifth and sixth counts, as a British subject, under the second clause of this act. That in the sixth count he is charged with what amounts to high treason. .S. That a man ranuot bo a citizen of a foreign state, andaBritisb subject at the same time. There could not be distinct offencei charged in the same indictment. 4. That it appears on the face of the indictment that oft'ences charged therein against the prisoner were committed in the county of Welland, and the indictment therefore could not be legally preferred against him under the statute 29 and 30 Vic, cap. 4, sec. 3 in this I A. IMAGE EVALUATION TEST TARGET (MT-3) / W ... ^ (9 4. y. WJ.A 1.0 I.I .25 ^K4 1^ •^ lil^ |{|lj2.2 - IAS liilO '•4 illlM.6 ^ <^ *^'-^ ^ Photographic Sciences Corpordtion s >^-'^ #C^ \ "Q V i3 WIST MAIN STRUT WIBSTIRN Y MStO (71*) •7'»-4503 Vv ^<^ !^ &$• &"< & I'l-i 188 TRIALS OF FENIAN TKISONERS. r i I court, it being a court for the united counties of York and Peel; the authority of the statute, being restricted to single counties, and that the indictment and verdict are illegal, Mr. R. a. Harbison .lontcndcd that Mr. McKencie hau placed a wrong construction on the interpretation clause, and that as to the second ground, his Lordship had already overruled thai objec- tion, by his decision on the application of the same nature, that v»'as made the previous day. Ills Lordship overruled the objections raised by Mr. McKenzie. Mr. McKfiNZiR asked for time to consider what course he would purQue— whether to demur or advise tlie prisoner to plead over. JIis LoRDB5£ip granted the request, and the prisoner was removed. I'atrick McGrath was th'en placed in the dock, indicted as an American citizen with having invaded Canada on the Ist of June, and committed an act of hostility against Her Majesty. The same counsel as in the previous cases appeared for the Crown, and - ject with liigh trejison. Mr. Mackenzie said he would advise the prisoner t(» plead autrefois tcquit. Toronto, Nov. 9. 1860. Tlie court opened at ten o'clock this moniing — His Lordship Mr. Justice John Wilson presiding. Danikl Dr. j>mond was placed in the dock charged as an Amer- TBIAia OF FEW IAN PEISOKEES. 189 ican citlzeu, with having invaded Canada on the 1st of June, with intent to lev}' war, addition of Mr. Feriton for tho prisoner. Mn. McKknzik, on behalf »)f the prisoner, challenj^ed the array in the following fonn : — Ar.i«r- )11 tilt! llu; Ml for array TEIAL8 OF FENIAN PR1S0NEE8. 191 In the Court of Oyer and Terminer, and p-eneral jail delivery, in, and for the United Counties of York and Peel, the 13th dayof November, in the year of our Lord, one thousand eight hundred and sixty six : — The Queen vs. D^nikl Whai.en — And now as thisday cotiie, as well tha said John Alexander Macdonald, who for our said Lady the Queen, pro- secutes in this behalf, as the said Daniel Wha'en in his own proper person and the jury thereupon empanneled, likewise come; and thereupon the said Darnel Whulen challenges the array of the suid p'tnel, because the said paniiel was arrayed, returned and made up by Frederick William Jarvis, E quire, now and at the time of the making of the said array, sheriff of the united counties of York and Peel, from an illegal and insufficient petit jury list. And the suid Daniel Whalen shows and states to the court nere, ')"), adopted a resolution allirming the ex- pediency of selecting a full jury list for the superior courts, for the year of our Lord, 1H(JG, suU u full p<;tit jury list was not selected. That a great numb 'r of person.^ (pialilied and competent for the per- tf)rmanco of the dulici of petit jurors for the superior courts, in, and for the uiiiied counti<;s of YorK and Peel, who.so naMiea am inserted upon the proper roll of poticju'ors for the year A. D. 1H6G, for the said united counties, to wit, TiOO nnines, were not proposed ior selection, or selected >'nd traiirtl'crroU upon the said petit jiu-y list, as tho law directs, but on the contrary thereof, were omiHcil and left olf, and other namort were selected and transferred in their i)lucn utid stead. That the cliuirnuui of tho Quarter Sessions of the peace, for tho united counties of York arul Peel, and tho clerk of iho peace for the same united counties, ha\>; nut tcrlii'icd undfr their hands in tho jurors' book for th» united count ii'S of York and IVel, for tho year of our Lord, one ttiou.iand eight hundred and n\\ty six, immediately after such pt tit jury list. i'hat tiic! [-.ctit j-.iry list, from wliicli tho said panel was arrayed, returned nnd made up, wa.>i not on any day, or at any time, duly selected and trans- ferred from the proper roll in open court, at the law directs, oud tbot the If ! i 192 TRIALS OF FENIAN PEIBONEPS. Mi said petit jary list is not certified in any manner whatever on the said book, by the said chairman and clerk of the peace. That the several names entered upon the said petit jury list from which the said panel is arrayed, returned and made up, were not selected and transferred from the properjury roll, in the order and manner as demanded by sec. 53 of the act respecting jurors and juries. That the names and additions of the several persons inserted upon the roll ot petit jurors for the superior courts for 1866, were not openly and audibly called aloud by the clerk of the peace, as proposed to be selected to serve as petit jurors for the superior courts, nor did the chairman of the Quarter Sessions, nor any member of that court put to the other selec- tors the question whether the said names or any of them should be selected for the petit jurors of the superior courts, as directed by law, before th^ir names were inserted upon the petit jury, and from which the said pan«I was arrayed, returned and selected. Ili3 LouDSHip refused the ohalleii2ce, on the jiround that sufficient cauHc had not I'oeii shown l»y Mr. McKenzie to support it. ' The trial of the prisoner was then postponed till to-morrow. Toronto, November 14, 1866. The court opened at ten o'clock to-day — His Lordship Mr. .histice John Wilson presiding. Danikl Whalen was j)laced in the dock, and his trial pioceeded with. The evidence showed that the prisoner was engaged it the fight at Ridgeway, and that lie was wonnded in tlie nock and shoulder- Verdict — Guilt V. Sentenced to Death. John Quinn was then placed in tho dock, and replied through his counsel that he was not ready for his trial. Mr.McKen7.ie moved to have the trial postponed till the follow- ing assizes, and put in an affidavit in support of his application. His Lordship hold tli.a the affidavit was insufficient, and the < *rown insisted on proceeding. Mr. McKenzie challenged the array. riie Hon. Mr. Cameuon traversed tlic clndlcnge, and His Lord- RitiP appointed Messrs 11. V. >Stepliens and C. V. Varnioll as triers, who, upon being sworn in disposed of the matter in dispute, by finding for the Crown. The trial of the prisoner was then pro'-oedcd with; ho being indicted as an American citizen, with having cntcro llurd „f June lie had no fireanns. Verdict — Not Guilty. Mr. McKenzie gave notice that he uould apply to the Court of Queen's Bench, for a new trial in the cases of tl„« .onvi-ls Lvu.-l. Jlaydcn, Slavin, Wlmlen, and (^niun. The court then adjtnirncd till after Term. ,,,, ^ , '''<"!<'Nin the special plea. The prisoner was then arraigned and tried. Verdict—GriLTv. Sentence deferred. Toronto, Jan. 14, 1867. Tlie courtopened this morning— His Lordship Mr. Justice Morri- son presiding. Thomas H. Maxwell was placed in the dock, indicted as an American citizen, with having invaded Canada on the 1st of June with intent to levy war, &c., on Her Majesty, and as a Brilish sul. ject, for high treason. The same counsel appeared for the Crown, and t\,v the prisoner, as in the previous case. Mr. McKenzik objected that the jurors had not been summoned under precept for the county of York. His Lordship noted the obiection. The evidence for tlie Crown, showed that the prisoner was formerly a resident of Toronto, that he had been in the battle at Kidoevay, and was wounded. Verdict— Gltilty of high treason. Sentence deferred. James Burke was placed on trial indictcda*- an American ciii;;pn, with having invaded Canada on the 1st of June, with intent to levy war, r the Crown, ami Mr. McKenzie and Mr. Fleming for the prisoner. Mu. McKki>7.ie claimed that the prisoner should be tried by a jiiry lialf alien. Hrs Lordship granted the request, but after a learned discussion it was decided to proceed Avith an ordinary British jury — the prisoner being indicted as a British subject for high treason. Mr. MoKenzie requested his Lordship to note that he made the s^me objection to this case, as he had to the former juries. His Lordphip took a note of the objection. The evidence showed that tlie prisoner had come to Canada on his way home, to see his father, who lived in Welland. Verdict — Not Guilty. John O'Connor was then placed in the dock. Hon. Mr. Cameron, Mr. R. A. Han-ison, Mr. ^IcNab, and Mr. Patterson, appeared for the Crown, and Mr. Patrick McCurrie, of Guclph, defended the prisoner. The indictment contained six counts, the *:-. .-.hree charging him as an American citizen with having invaded Canada on the 1st of June witli intent to levy war against Her Majesty, and the last three as a British subject for high treason. The evidence for the Crown showed that the pnsoner wiis with the Fenians at Fort Erie on the 1st of June, and that when he was arrested he carried a sword. Verdict — Guilty. Sentence deferred. Daniel Quinn was next put forward for trial. if TRIALS OF FENIAN PRigONEKS. 16*7 Hon. Mr. Cameron, Mr. Harrison, and Mr. McNab, appeared Ibr the Crown, and Mr. McKciizie and Mr. Fleniinsl for the defence The evidence for the Crown showed that the prisoner was one of the Fenians that had landed at Fort Erie on the 1st of June, and that he stated that the Fenians had olian^ed the name of Canada to that of the Irish Republic. Verdict— Guilt r. Sentence deferred. Toronto, Jan. 10, 1867. Ihe court opened this morning-His Lordship Mr. Justice Morrison presiding. Joiix RoGAN was placed in tlie dock charged under the six counts ir. the indictment. The prisoner stated that ]ie desire.l to bo tried by a jury half alien. " -> J ' A jury composed of six British subjects and six American citi- zens was then empannclcd to try the case. The same counsel as in the previous case appeared for the Crown and for the defence. Hon. Mr. Cameron stated that the Crown had elected to try the pnsor.er on tiie llrst three counts, [EUtJ. It \VH8 fitatod in cvKU'i.cc thfif tlio jx-i.-joncr was s^m-ii in tlio, com- pany of a number if aiiiu'd Ivnia.is at. lM»rl J'h'ic, on the 2nd of June, and that he ictreaUul to iho woods, was pursued and ar- rested. Verdict — GriM'Y, willi a recommendation to mercy. Sontcuco deferred. ToiioNTo, Jan. *J4, 1807. T\\v court opened t!iis mornint;' — Ilis Lordsliip Mr. .Insticc Mou- uiHON presiding. TiiuMAs lviN(} wiis put forward for trial, clianiod as aa American citizen, with levying war against tlic (^ueeii. lion. Mr. Cameron, Mr. xMcNah, j.-id Mr. .J. I'atterson, a])peareil for the Crown, and 1). B. Uoad, Mr. !MeKenzio, Mr. Fleming, and Mr. M»)rphy appeared for the prisoner. The evidence lUiowed that tlie prisoner was on guard at I'ort Erie, and that ho w.'Uh armed with a I'euian ritlo and l>ayonet. The evidence, however, not being very definite, the jury returned a verdict of Not Guilty. Jons Gallagher was placed in the dock, e'^argod as an American citizen with having inviuknl Canada to levy w.ai on Her Majesty. Uoi.. Mr. Cameron, Mr. McNab, and Mr. .1. Patterson, appeared for the Crown, ami Mr. Mclvenzie and Mr. Fenton for the prisoner. it was stated in evidence l)y a Ff^iian convict that the prisoner came from Cincinnati witli the Fenians to inva; L'»rdship Mr. .luhtice Moiirihon |»re8iding. John (Jrace was placed in the dock, charged as an American citizen, Avith levying war on ller Majesty. Ti>e prisoner claimed to be tried by a jury half ulie.i, bu* hiiI.- scvjuently withdrew his refpiesl, and asked for a jury from the ordinary list. Hon, Mb. Cameron at first raiscMj an objection, but suliBOfpiently eonsented, provided his Lordship saw fit to grant the retpicst. Ills Lordship granteii the foUowhig prisoners: — I'atuicu: Norton, W. JI. Maxwell, Tatrick O'Nbil, James Bcrke, Damkl Qjinn, Pah. I'eteh Lkdwitii, John O'Connor, John Kookhp, Owen Kennedy, Barney Dinn, and John Gallauher. Mr. McKen/.ik asked that the s'^ntence about to be passed o'l Owen Kennedy be ib'Iayed till the in-xt sitting of the court, as he had no doubt there luul been u mistrial, ;nid he desired to hikv exceptions in tlie liigher courts. Ilia LoRusHiP replied that lie did not see that the prisoner wouhl be deprived of any adxantage by the sentence being passed upon him. The jury had recommended the prisoner to, mercy, and he would forward ittcv the Kxccutivc. Ho theti sentenced the prisoner to be liung on the 6th of March. lli« LoRDHiiiP nl.so setiteuccd the nthcr jtrisoners to be huiig on the 5th of .March. JUDQMENTg OF THE 8UPEEI0B COURTS. 808 JUDGMEiNTS IN APPEAL THE QUEEN AGAINST JOHN M'MAHON. Court op Queen's Bench, Dec. 1, 1866. Draper, C. J., delivered the judgment of the Court of Queen's Bench in his case. The prisoner was indicted, tried and convicted ht the last assizes for the united counties of York and Peel,under the consolidated statutes of Upper Canada, cli, 98, which enacts that in case any person becominof a citizen or subject of any foreign state or country, at peace with Her Majesty, be,or continues in arms against Her Majesty, within Upper*Canada,or com- mits any act ot hostility therein, or enters Upper Canada wit'i design or intent, to levy war against Her Majesty, or to commit any felony therein, for which any person would, by the laws of Upper Canada, be liable to Buffer death, may bo tried by a militia general court m«^rtial, or (S. 3) may be p.'osecuted and tried by any court of Oyer and Terminer and gen- eral jail delivery, in and for any county in Upper Canada, in tie same manner as if the oflence had been committed in such county, and, upon conviction, shall suftbr death as a felon. The indictment contained three counts, charging, first, that the prisoner late of Buffalo, in the State of New York, one of the United States of America, being a citizen of a certain foreigr state, to wit, the United States of America, at peace with Her Majebty the Queen, on the 1st of Juno, 18C6, and while the said foreign state was so at peace with her said Majesty the Queen, at the village of Fort Eric m the county of Welland, in that part of the said province, called and being Upper Canada, with divers other evil disposed persons, whose names are to the jurors aforesaid unknown, did unlawfully and feloniously enter into that part of the Province of Canada called and being Upper Canada, with intent to levy war against her said Majesty the Queen, contrary to the form of the statute, &c., and against the peace, &c. The 2nd couni commenced in a similar manner, and charged that the prisoner, havin^ before that time joined himself to, and being then and there joined to divers other evil disposed porsons, to the juvors aforesaid unknown, was unlawfully and feloniously in arms against our said Ludy the Queen, within Upper Canada aforesaid, with intent to levy war against our said Lady the Queen, contrary to the form, &c. The 3d count, commences similarly, charging that the prisoner having before that time joined himself to, and being then and there joined to, divers other evil disposed oorsons, to the jr.rors aforesaid unknown, and Wo-r-i then and there unlawfully and feloniously in arms against our said Lad^ the Queen, did unlawfnlly and feloniously commit an act of hostility against our said Lady tho Queen within Upper Canada, in this, that the prisoner on, Ac, together with the said other evil disposed persons, armed and arrayed in u war-like manner, feloniously did assault certain of her Majesty's liege 8ubjecta, in the peace tf our Lady the Queen, then and there being with intent to levy war against our said Lady the Queen against the form, &c, Mr. McKenzio has moved for a now trial. The first ground taken is that there was no legal evidence to prove that the prisoner was a citizen 20* TRIAL8 OF FENIAN PRISONERS. Ill of the United States of America, while there was direct eviJeuce, on the part of the Crown, showing that the prisoner was a natural bora British subject. The evidence touching this question was that the prisoner stated to John Metcalf (a witness) that he was a Roman Catholic priest, born in Monaghan, in Ireland, That he was a citizen of the United States, aid came over from Buffalo on the 1st of Juiie, and landed at Fort Erie. I he prisoner also stated to William Crumb (another witness) that he came over with the Fenians to dress the Fenians' ivounds. It was t)therwi30 proved that a body of Fenians landed at the lower itivry at Foil Fiiic. and that they came in canal boats towed by tugs. Tiio^e men were armed. Th'j prisid'ier also said to another witness that he came from some place in Illinois, in the State.s. The argument in support of this objection was, that the Crown had made the statements of the prisoner their only evidence cti this point. That they wore therefore bound to tako his state- ment as true that he was a British born pubject ; from which fact it was alleged, that by the law of England he could never relievo himself from the dut'es and obligations of native allegiance, and the law of Eng- land in that particular ivas the law of Upper Canada, The additional as- sertiou made by the prisoner could not, though taken to be equally true, affect the legal consequences of the first. The native allegiance of neces- sity, was the earliest, attaching from his birth. The citizenship of the I'nited States could only be of subsequent adoption under some assumed law of the United States, conferring such power of adoption upon the sub- jects or citizens of other governments, which law was not proved. Nor could the court judicially take notice of it ; and whatever its power in the United States, it had noue in the British dominions, and when the prisoner was within them, he was by law a British subject to all intents j and if he violated our laws, he did so as a British nuojoct, not as a foreign citi- zen. DRAPEll C. J.— In Mneas Macdonald's case (Foster 59) the court laid it down that it is not in the power of any private subject to shake off his ullogianco, and to transfer it to a foreign prince. Nor is it in the power of any foreign prince, by naturalizing or employing a subject of Great Britain, to dissolve the bond of allegiance between that subject and the Crown, But that learned writer suggests the question how far "pruden- tial considerations grounded on reasons of state, or evnn the principles of natural equity may, under certain circumstances, induce the Crown to dis- pense with a vigorous execution" of that law. And he adds that cases may be put which will be consiaorcd exceptions to the general, but '* not universally true" rule. It is, however, needless to go beliind the con- clusion of Blackstouo : — "Natural allegiance, is, therefore, a debt of grati- tude which cannot bo forfeited, cancelled or altered by any change of time, place or circumstances," The prisoner's counsel, however, upparerdy seek to invert this rule, aiid to deduce from it an obligation on the part of the sovereign to recognise the continuance of the relation of subject; notwithstanding a distinct repudiation of the relation, and an assertion of a status enti.ely at variance with it. And thus they claim that the pris- oner, who is charged with and convicted of acta which involve a most fla- grant breach of duty as a subject, may iasiat that the Crown must recog- nize him in that character, though merely to vary the language of the chargp or tlje lechnical character of his crime. The authorities cited and JUDGMENTS OF THE SUPEBIOR (XHJBTS. 203 commented upon, all refer to the duty iind respoosibility of a natural born labject. None of them show that it is compulsory on the Grown to treat him, who has cast off his allegiance, as still a British subject, or that the Crown having the right to deal with him as a traitor cannot proceed against him as guilty only of felony. In Hale's Pleas of the Crown it ia said, the King nay, if he pleases, proceed against a traitor for felony, and anciently a pardon ot all felonies discnarged some trrisoner from Buffalo to Black Bock, opposite to Fort Erie, on liis way to Canada, and separated from him at Black Rock between 8 and 9 on the morning of the 1st of June. He gives the same reason for his non- uttendance at the trial, as the previous deponent, and says he is prepared to attend any court to give evidence to the above effect. The two points of contradiction in the evidence against the prisoner relate to his being armed, and to his being among the invaders in Canada at an early hour, 6 or G o'clock on the morning of the 1st of June. The first allegation is in my judgment for reasons already given of no importance, unless as affecting the credibility of the witness or witnesses who stated it j the sficond is tlic only matter of fact referred to in the affidavits of the two Vaughans. Assuming that these two deponents had been at the trial and had con- tradicted Sullivan and Milligan, and had been believed by the jury, it would not, in any view of tha evidence have affected the verdict, for it was not material to the question of the prisoner's guilt or innocence of the charges contained in the indictment, whether he joined the invaders early on that moraiug, and crossed with them, or whether he came after them and joined them in Canada at a later hour. The fact that he was there at mnc, and bis subsequent conduct remains, and the proof of this is given i JUDGMENTS OF THE 8UPERI0K COURTS. 209 ( by other witnesses than Sullivan au' Milligan. I cannot omit to notice that the prisoner has abstained k ti any observation upon th(>. evidence of his having gone back f om Canada to the United States, or if he did so, to explain his return or attempt to reconcile it with his as- sertion proved at the trial, that the Fenians compelled hira to go to Ridge- way to act as chaplain for them. I abstain from comment on some of the statements contained in the affidavits of the two Vaughans. They certainly are suggestive, and at a trial must have lead to some more special inquiries. On the whole I am of opinion that no ground taken by the prisoner's counsel as a reason for granting a rule to show cause is sus- tained, and that upon the principles which govern us in granting new trials, we could not make such a rule absolute in this case. I agree with what was said in Regina v. Fick, 16 C. P. U. C. 388, that unless there be some probability that the rule, if granted, would be lade solute, it should not be granted at all. I refer to the cases of the Quoeti v. Chubb, 14 U. C. C. P. 32,and the Queen v. Hamilton, 16 U. C. C. P. P.40. In the lat- ter it was held that the discovery of evidence to impep.ch the testimony ( a fortiori) the character for veracity of a witness examined at the trial, is no ground for a new trial. Jn the former, that affidavits of facts which were not shown to have become known since the trial, were not admissi- ble oa a motion for a now trial. Both these cases were elaborately dis- cussed by the Bench and at the Bar, i .dthe authorities exhaustively con- sidered. The other grounds of application I have, as fully as time per- mitted, carefully exammed and weighed. I cannot arrive at any other conclusion than to refuse the rule. THE QUEEN AGAINST LYNCH. IIagauty J., delivered the judgment of the court in this case. This case differs from the case against M'Mahon, chiefly in the fact, that after it was proved for the prosecution that the prisoner had declared himselt on at least two occasions since his arrest, in writing, that he was an Amer- ican citizen, and came to Canada as such, his counsel called a witness to prove that he was born within the Queen's allegiance. The learned judge told the jury that where there was evidence of a prisoner being born a British subject and he declared himselt or claimed to be a citizen of the United States of America, that the rule of law was, once a British subject always one. But as the British government had not held a man culpable for becoming a citizen of allot'^er state, the jury might properly take the prisoner at his word, and it would be better to consider hiui a citizen of the United States if he claimed lo be one. The motion for a new trial is on the grounds similar to those in the M'Mahon case. An affidavit of the prisoner is filed, lie swears that he was taken by sur- prise on the trial, haviir^ no knowledge of the evidence against him, and consequently unprepared tor defence. That lie was not in anus, and did not wear a sword, as was swori to by Moh'sworth, Stevens and others. That ho believes they mistook him fur a person named " Iloozier " who WU3 present at the raid, and who did wear a Rword and wns in command of a number of Fenians. He can produce evidence of this, and that the person referred to bears a stiiking resemblance to him, and that he might easily be mistaken ior him. That he camo to Canada on the oc- casion referred to simply as a reporter for the Louisville Courier, and had 210 TRIALS 01 FENIAN PKI80NER8. ! I nothing to do with the invasion, and he can prove thi" by the evi- dence of Mr. McDermott, of Louisville, his employer. That he can also show by the evidence of Col. O'Neil, and others, belonging to what is called the Fenian brotherhood, that he never was a member of that organiza- tion, and had no act or part in the invasion of Canada, provided a safe conduct be granted to said O'Neil, and the other witnesses referred to. That he is wholly innocent of the felony for which he has been tried, and that his innocence can be made to appear by the evidence aforesaid, if an opportunity is allowed for a new trial. The evidence against the pris- oner is very strong. The landing of a large body of invaders from the American side of the river, their being armed with rifles and bayonets, marching in order, having officers over them, some in uniform, some in plain clothes, with green flags with harps, and drums. That they took prisoners and confined them ; that they said they were going to take Can- ada and have farms ; that two fights took place with th3 Queen's troops at Fort Kris, and near Ridgeway, and men were killed on both sides. Five witnesses identified the prisoner as being with the invaders ; that he had a sword ; that he marched with the men. One witness saia he was spoken of by the men as Colonel Lynch, and that he was addressed by that name. Another said beseemed to be in command. Another that he had heard him give the word of command. He was not in uniform. He stated to some that he was a newspaper reporter. The evidence of prisoner's identification, and of his being, acting in aid of, and in concert with, the body of invaders that came over from the United States, is much stronger than in the M'Mahon case. That the object of those persons was to wage war against the Queen, and that they actually did so, seems to be established beyond reasonable doubt, and also such acts and such purpose could have but one meaning, viz., that charged in the indictment. It is not easy to see how on such evidence the learned judge could have done otherwise than to have told the jury that there was evidence to sup- port the indictment, if they gave credit to the witnesses. Assuming that we may receive the affidavit of the p -isoner, it seems to us wholly in- sufficient to warrant our interference. He names no person who can be produced to contradict the testimony of his wearing a sword, a matter in itself not essential. From the day of his arrest, he has apparently based his deienco on the allegations that he was a newspaper reporter, and a non .imbatant, and if such a defence were available, he ought to have been Tjrepared to establish it. It would be contrary to all our practice as to aSddavits of surprise, and as to the existence of fresh evidence, to con- sider the statement before us of sufficient ground for interference. The prisoner we think wholly mistakes the nature of the charge against him, when he urges his character as a newspaper reporter to establish an im- munity from the consequences of being present in apparent cooperation with the invaders. If a number of men band themselves together tor an unlawful purpose, and in pursuit of that object commit murder, it is right that the court should pointedly refuse to accept the proposition that re- sponsibility for their acts does not extend to the surgeon who accom- panies them to dress their wounds, to the clergyman who attends to offer spiritual consolation, or to the reporter who '"^olunteers to witness and re- cord their achievements. The presence of any one in any character aid- ing, abetting or encouraging the prosecution of the unlawful design, must involve a share in the common guilt. The judgment of the court in the II. JUDGMENTS OF THE SFPEEIOE COURTS. 211 ive as n- le Un, un- ion an ler re- lid- list he preceding case applies to the objections urgedM>n behalf of thia prisoner as to his nationality. Affirmative evidence of his having been iborn in Tieland was given. There was direct proof that the body of the invaders came from a foreign country with which we were at peace, and prima facie vre think they might be reasonably assumed to be citizens or subjects thereof. The prisoner declared that he came over as a reporter for an American paper, and that he was an American citizen. It appears to us that the Crown may properly allow him the political staius which he claims for himself, and that if the sovereign within whose allegiance he may have been born,does not insist to treat him as a traitor on that doctrine of extreme right, there is nothing in the case presented to us calling for our interference on this ground. He could be tried on the same law in Upper Canada as a British subject, for the same felony as that for which he has been convicted, and an indictment slightly varying the former de- scription ot the persons with whom he was acting, in levying wai or en- tering the province to levy war, &c. Were we called on to declare the law on an indictment for treason against a born subject, we should have moat likely to adopt the view of the prisoner's counsel. As it stands before us the sovereign waiving her extreme right, and prosecuting the prisoner as a foreigner, we see no just ground for holding the direction of the learned judge to be erroneous in law, or the finding of the jury unwar- ranted by the evidence. As the case is reoorted to us we do not find that any complaint was made at the trial of the learned judge's direction to the jury on this point, nor did the prisoner's counsel aik that the point of hia nationality should be submitted as a question to the jury. Nor that the counsel pressed the jury or asked them io acquit on that ground. Nor did the prisoner ii his affidavit in applying for a new trial, assert that he was a British subject, or that he claimed such position or desired to have it submitted to another jury. We think there should be no rule. THE QUEEN AGAINST THOMAS SCHOOL. Morrison, J., delivered the judgment of the court in this case. — In this case the indictment differs from the indictment in the cases of M'Ma- hon and Lynch, in which judgments have just been delivered. It contains six counts ; the three first being counts similar to those in the cases of M'Mahon and Lynch, charging the prisoner as being a citizen of a foreign state and in the last three counts charging the prisoner as being a sul^ect of her Majesty, &c. This case was also tried at the last York and Peel assizes before Mr. Justice John Wilson. After the case was called on, Mr. K. Mciienzie, Q. C, the prisoner's counsel, objected to the in- dictment because it contained the two sets of counts, and h*i contended that the prisoner should not be called upon to answer both sets, and that the Crown should elect on which set of counts it would proceed upon. On the ground that the prisoner was thereby forced to defend him- self against two distinct offences, and was thereby embarrassed in his de- fence. The learned judge overruled the objections and declined to put the Crown to an election. The prisoner was found guilty on the fourth and fifth counts, and acquitted on the other counts. During the present term Mr. McEenzie moved this court for a rule nisi to set aside tne ver- dict, and for a new trial, the verdict being contrary to law and evidence, and the weight of evidence, and he based bis application upon eleven grounds. He also moved on the ground of earprise, and in support of the latter It ii n2 TRIALS OF FEITIAN PRISONERS. ground filed an aflBdavit of the prisonftr. As to the first 8even grounds taken, which are objections in various ways, that there was no evidence to shew thut the prisoner intended to levy war against the Queen, and for misdirection and nondirections in respect thereto. Siiniliir obj«f- tions were taken in the cases of M'Mahon and Lynch '^ it is, thfrel'oie, unnecessary to discuss the merits of snch objections as the jud^^nnents in the cases I refer to fully dispose of them. The ei;j;hth objection is, that the Inaperial act 11 and 12 Vic., cap. 12 overrides iho Provincial act un- der which tho prisoner was convicted. Upon an examination of the Im- perial statute I see nothing whatever to sustain the obection. The ninth objection is, that the weight of evidence went to show that the prisoner's presence at Fort Erie was under compulsion. The evidence taken at the trial shows beyond doubt that the prisoner was at Fort Erie ; that he was armed with a rifle and bayonet ; that he formed one of a guard detailed to take charge of prisoners taken by vhe invaders, and that he acted in ihat capacity. Five witnesses were ca'iled and examined on the part of the prisoner to show that he was intoxicated at the time he left Buffalo, and when he crossed the river at Fort Erie. All the evidence went to the jury, and it was a matter solely for them to decide. The prisoner in his affidavit, filed on the motion, admits that he was at Fort Erie and bore arms as stated on tho trial, but stated he was there on com- pulsion anci bodily fear from the threats of the Fenians. il« shows no ground of surprise while the line of defence set up at the trial goes far to negative any such ground upon this ninth ground, as well as that of surprise taken on the twelfth ground. I see no reason for granting a rule. Nor do I see anything in the tenth objection, that there was no evidence that the persons with whom tlie prisoner joined himself were citizens of the Uniicd States as alleged in the fourth count. The objection is met with the proof that the persons referred to came from the United States, and as said by ray brother Hagarty in the Lynch case, they may be reasonably assumed to be citizens thereof. As to the eleventh objection which was strongly pressed by Mr. McKenzie — that the learned judge refused to require the Crown to elect whether it would proceed against the prisoner as a British subject or as a citizen of the United States, and that the prisoner was thereby forced to defend himself against two distinct offences, and was thereby embarrassed in his defence, the case of the Queen vs. John Mitchell J Cox 1 is an authority in support of the learned judge's ruling. In that case the prisoner was indicted under the Imper- ial statute 11 and 12 Vic. cap. 12. The indictment contained ten counts and at the trial the prisoner's counsel, Sir Colman O'Loghlen objected as in this case, that the indictment charged the prisoner with two distinct felonies, viz., compassing to deprive and depose the Queen from her style, honor, and royal name of the Imperial Crown of the United Kingdom, and compassing to levy war in order by force and constraint to compel her Majesty to change her measures and counsels. And it was contended that the indictment should be quashed or that the Attorney-General should elect as to which of the couits he would proceed upon. After argument on the part of the prisoner's counsel, Baron Lefroy, in giving judgment says:— "We do not think it necessary to call on the Attorney General as we have had a full opportunity of considering the subject in consequepce of the amendment which was very fairly made yesterday evening oy Sir Colman O'Loghkn of the grounds on which he intended to rest his «p- jrDQMENT3 OF THE SUPERIOR COURTS. 213 plication, and we think it of great importance where we find the law well settled and an established practice, not to appear to entertain anj doubt upon it." We are called upon either to quash the indict-nent, or put the Attorney General to his election as to which of the counts he will pro- ceed upon. Jt is admitted not to be an objection which will vitiate an indictmeijt that it contains several distinct cbarcfcs, even of felony. But it is said that if it appear before the prisoner has pleaded or the jury be charged, that h« is to be tried for separate offences, it has been the prac- tice ot the jcfJges either to quash the indictment lest the prisoner should be confounded or prejudiced in his defence, or to put ihe prosecutor to his r-lection on which charge he will proceed, but that these are matters of discretion. We quite concur in the statement of the prisoner's counsel that there are several compassings charged in this indictment and that they are charged as distinct felonies, lint the authority to which I am about to refer will show clearly that there is no grounds on that account for either quashing the indictment or making a case of election. We have looked through all the cases on this subject. One of the latest, we think, lays down the rule in such a manner as to commend itself to the judgment as well from the reasonableness of it, as from the high authority of the two learned judges, who decided the case upon great deliberation. Mr. Baron Parke and Mr. Justice Patteson (Rex v. Blaekson et al 8th C. & P. 43) and in applying the rule there laid down, he says " there is no re- pugancy in the different offecces charged, they constilute but one corpus delicti laid in different ways ; the overt acts are the very same which are charged in support of all the counts, except the two last. If the prisoner is prepared to meet them as applied to one, he is prepared to meec them as to the rest. As the offences therefore charged are in r.o wise repugnant, nor does there appear to be anything by which the prisoner could be em- barrassed or prejudiced in hia defence, we cannot see any ground either for quashing the indictment or putting the Attoi ney General to his elec- tion, and the n?otion must conseq' ently be refused." It is the usual prac- tice when it is uncertain whether the evidence wiii support the charge as laid to insert several counts in an indictment. What this prisoner was called on to meet was the levyin^j of war or the intent to do so. The question of his being a British subject or a citizen of a foreign state could not have embarrassed him in bis defence, for as said in the case cited : if he was prepared to meet the one set of counts he was prepared to meet the other. The learned judge reports to us that when the objection was taken at the trial he stated to the prisoner's counfiel, he could notsee in what way the prisoner's defence was embarrassed. It was for the prisoner to say whethe r he was a British subject or a citizen of the United states : that if he claimed to be one or the other the learned judge said he v/ould put the Crown to an election, and that the Crown was prepared to do so, but that the prisoner's counsel declined ; afterward on the trial the question of his being a British subject was not disputed. I am therefore of opinion that there should be no rule. THE QUEEN AGAINST WILLIAM SLAVIN. Court oii* Common Pleas, Dec. I, 1866. Adam Wilson J., delivered the judgment ot the Court of Common Ple.is in this case. The prisoner, Wm. Slavin, was tried at the last assizes for the united counties of York and Peel, before Mr. Justice John Wilaon, 214 TEIALS OF FENIAN PRISONERS. and convicted on lue second count of the indictment for that he " being a citizen of a certain foreign state, to wit the United States of America, at peace with her Majesty tiie Queen, heretofore, to wit on the second day of June in the y ir of our Lord one thousand eight hundred and six- ty-six, and while t\v lid foreign staf-^ was so at peace with her Majesty, with force and arms iii the county of Weiland, in that part of the province called and being Upper Canada, having before that time joined him- Eslf to, and being then and there joined to divers other evil-disposed per- BODS to the jurors aforesaid unknown, was unlawfully and feloniously in arms against our said lady the Queen within Upper Canada aforesaid with intent to levy war against our said lady tht Queen contrary to the form of the statute in such caeo made and provided «nd against the peace of our lady the Queen her Crown and dignity." The statute under which this prosecution has been carried on is chap 98 of the consolidated statutes for Upper Canada. The act so consolidated was originally passed in the 3rd year of her Mejesty'a reign, but the effect of the revision, classification and consolidafion by chap. 1 of the consolidated :;tatute3 in- tituled an act respecting the consolidated statutes for Upper Canada" passed on 'he 4th of May 1859 wag " to all intents as though the same [the cousuiidated statutes] were expressly embodied in and enacted by this act to come into force and have effect on, from and after such day.'' The first section of chap. 98 declares that " in case any person being a citiiaencr subject of any foreign state or country at peace with her Majw- ty, be or continues in arms against her Majesty within Upper Canada, or commits any act of hostility therein, or enters Upper Canada with design or intent to levy war against her Majesty, cr to commit any felony therein, for which any person would by the laws of Upper Canada be liable to suf- fer death, then the Governor may order the assembling of a militia een- eral court martial," &c. And the third section of the act (as amended I j the 30th Vic. cap. 4) provides that every such person may, nevertheless, " be prosecuted and tried before any court of Oyer and Terminer and Gen- eral Jail delivery in and for any county in Upper Canada, in the same manner as if the offence had l.en committed in such county, and upon conviction, shall suffer death as a felon." The count seems to have been drawn from the 2nd section of the statute, whicli applies only to subjects, and from the Ist section which apnlics only to foreigners compounded together. Such a count has entaiieu much nioit proof on the Crown than need have been nssumed, but still when proved there is left a distinct statutable offence, stated against the prisoner, of being in arms a^ainsit the Queen. It was proved that the prisontT was a citizen of the United States and crossed from Buffalo to Fort Erie in a skiff on Thursday tho Blstof May, between G and 7 in the afternoon, and that a man he did not know paid his passage over. That on Saturday the 2d of June, about 4 o'clock in the morning he was about a mi!:; below Newbigging's, which is about a mile lower down than where the main body had crossed, with a rifle and bayonet similar to those which the Fenians then had and which he said he had picked up on the road. Ife said ho was tired and asked for a place to lie down. He said he had been out all the previous night ; that he had been with the Fenians, but ho was not one of them, and he ■aid that he had left them at a place which was said to be about three miles from Limorid^e, and that be lay by tho fence till the main body had JUDGMENTS OF THE SUPERIOR COUUTi?. Sift passed and he then returned. The other general facts of the case are that a large body of armed men who are spoken of by the witnesses as Fen- ians, crossed over from BiifTalo to Fort Erie on the morning of the Ist of June and marched in the course of that night and the next morning to Limeridge, where a fight took place between thia body on the one side and the Canadian volunteers who had been called out to repel this descent and outrage by the other, and that many persons were killed and wound- ed in the engagement on both sides. Tie volunteers were in uniform and proper martial array. It was a contest between two organized forces. Her Majesty's forces on the one side and these invaders on the other. Mr. McKenzie, Q. C, has applied for a rule, calling on the Attorney General to show cause why the verdict against the prisoner should not be set aside and a new trial granted, for causes which are set out at considerable length in the motion paper, but which may be fully stated as follows : — I St. That there was no legal evidence at the trial that the prisoner was a citizen of the United States of America, as alleged in the indictment; 2ad. That the prisoner intended to levy war against the Queen ; 3d That he waa inarms in Upper Canada with intent to levy war; 4th. For the reception of improper evidence on behalf oi the Crown, of a collision having taken place between Her Majesty's volunteer troops and the armed body of persons which crossed from Bufifalo, and of the circumstances con- nected therewith, although the same took place in the absence of the prisoner and several hours after he was arrested ; and 5th. Because the Imperial act ot the 11th and 12th Vic. chap. 12, provides for offences against the Crown similar to those alleged against the prisoner and overri les the Provincial act under which the prisoner was trif d, and whivh was passed previously to the said Imperial act. x\s to the 1 st objection, it was sworn that the prisoner said he was an American citizen, a native of New York, f nd that he had been in the American army, and there was no evidence whatever in contradiction of this. The admissions and declarations of the prisoner were, unquestionably, evidence against him. As to the 2nd objection, it was shown that several hundreds of armed men came from the shore of the United States and landed in this province at and uhout Fort Eric. Very shortly after the prisoner himself came from the same place ; that the prisoner was with them all the night of the 1st of June, and that ho was early on the morning of the 2nd of June seen carrying a rifle and bayonet similar to those which the nbove armed men had, and altogether different from those .vhich were used by any of Her Majes y's troops, which ho said he had found upon the road. It was also shown that this armed body was organized , that it encamped and marched in militiry order; that it took prisoners and fought Ilcr Majesty's troops upon that iay, and killed ami wouiuled several of them. This was evi- dence, more t)v le.is, against the prisoner, and a'though there was ('videnco also very favorable for him, it was nevertholesa impossible to say tlioro was no evidence that ho intended to levy war. Wo do not "list uss the groutiil taken by Mr. MeKonzie, and argued so strongly up- on fills point, that this intent wut not to bo collected from any actor act , rt'hntiver; not by being armed: not by marching in military array ; not by taking ptisonera ; not by figliting Her Majesty's troops; nor even by wounding and lulling them; for it can seareely be necessary we should K.iy, that bdlnm />rr f»i«.v«ffi is some evidence of an intent to levy war, anU perhans it might justly be considered as the most unequivocal and con- 21« TRIALS OF FENIAN PEISONESS. ▼kioing evidence of such an intent. It was argied that this intent could not be gathered by any otlicr means than by the passicg of a resolution, or by some verbal or written declaration, plainly expressiiig that the pur- pose was to levy war. Wo say nothing further on the r.-int. As to the 3rd objection — The evidot;ce shows as to the fact tbit the prisoner was in arms at 4 o'clock on tho morning of the 2nd cf June, and that he had been witli the foreign armed body during the ni^ht befure ; that is, that h*" was with the same armed body which fought Her Majesty's troops a few hours afterwards. It is true lie said ho had found the rille and bayonet that morning on the road, and it is true there was evidence that he was not actually armed the night bolore ; but the jury had to pass upon this conflict of testimony. It is quite sufficient for us that we are not able to say there was ' no evidence that the prisoner was in arras in Upper Canada in the manner slated in the indictment. This point was argued as if it were necessary the prisoner should have had arms actually upon his person at the time in question. We do not adopt this view of the statute. We iliink that every artilleryman in charge of a gun, though carrying no arms upon his person, may properly be said to be in army ; that two persons having only one rille between them, may, although one ot them alone 's carryinjr it, bo said to be in arms ; that an oiliccr commanding a numbe;* of men who are armed, may altlunigh he carries no arms himself, bo considered to bo in arms. All who are concerned in and 'ire present at the coramission of ftn offence are principals, and are alike culpable in law. As to the fourth objection, wo think that whenever a joint participation in any enterprise is shown, that any act done in furtherance of the common design is evidence against all who were at any time concerned in it, and therefoie the fighting which took place on the day that the prisoner was ariested, and after his an est was some evidence that such lighting was contemplated by the parties while the prisoner was with them before his arrest. In Frost's case (9 C. and P. lofl) Tindal, C J., said : " It may also be shown by acvs done afterwards what the common design was." The last objection does not exist in fact ; for the provincial act of 1840 was by the consolidation in lS5t) re-enacted and istlierefore later in point of time than the Imperial statute referred to. 'J'he miestion as to any conflict between them does not therefore arise. Wo do not profess to have scanned the evidence with the view of saying whethc. J. jury might vr might not, fu'rly con- sidering it, lia\e rendered a verdict of acquittal. We have already declared on several oocnsions thai this is not our province under the statute ; it is Nutficient for us to say that there was eviaence which warranted their find- ing, and it is cpiitc impossible for us to say in the terms of the motion that there was no evidence against the prisoner. A now trial is then asked for upon the grounds disclosed in the affidavits filed. One of t!io aflidavita which is made by Mr. Fenton of this pluce relates to his searching and en(|uii ing for an order of the executive council under the statute ot the last session, aul,horizing the trial of the prisoner to bo held which is of no con- sequence now, as this grnurd of motion has Iieen abandoned by the jiris- oncr'b counsel. The only other affidavit is the one which is made by the prisoner himself, and it is in these words, so far as is material to the pres- ent quostion. "That I had no knowlodg«j of the nature of the evidence to be produced against me. and by reason thereof was taken by surpris**. I say tliat I am innocent of the charges upon which I was indicted, and particularly the charge of boing in arms against Her Majesty the Q.ieen. JUDOMENTS OF THE SUPERIOR COURTS. 817 1(1 'M. I am iaformod and believe that every effort was made by my attorneys fo procure the attendance of Mr. Macleod, a most material witness for me :it my said trial, but without avail. If a new trial be granted by this honorable court I shall be able to secure the attendance of suid Macleod as well as other w^itn'^sses who have offered to give material evidence ia my behalf, uad I verily believe that I shall be able to show that I had nothing whatever to do with the invasion of this province by the Feninna in the month of June last." That tho prisoner ** had no knowledije of the evidence to be produced against him" is no ground of surprise, for no one is obliged by pleading or otherwise to disclose the evidence by which hin case is to be supported ; it is sufficient that the party is fully apprised of the case or charge which it is proposed to prove against him, and be must then, being so informed, prepare himself to repel it. We cannot conceive a simpler case than the present to be answered, if it be capable of bei"g an- swered, and accordingly all the evidence which was given by the prisoner was directly applicable to the point of his defence ; but the jury were not satisfied with it. No false swearing or exaTrgeration is imputed to 'he Crown witnesses and no kind of ground is shown upon which we t aid properly interiere to avoid this verdict. If a new trial were to be grantsd upon such an affidavit no verdict could uver stand, and the rule of law would practically be that every casa must be tried at least twice beforo it should be considered to be final. Before concluding our observations we wish to refer to some of the passages of the charge to the jury of Chief Justice Tindal on the tr'il of Frost, a charge which nas been described as "the model andexamp'ar of judicial discrimination and impartialty," and which places upon a true and just footing the kmd of evidence which may be admitted and relied upon for the purpose of proving the intent with which a party has done or has attempted to do particular acis charged against him and which unanswerably disposes cf the argument of the prisoner's counsel that no act whatever, however violent or hostile, no battle or fighting with the Queen's troops, however serious, could be used as evidence of an intent to levy war. We quote from the short-hand i.otes of the trial taken by Joseph and Thomas Gurney and published in London in 1840 — At page 089 the Chief Justice said : It is not,, however, an un- reasonable thing, and it daily occurs in investigations, both in civil and criminal, that if there is a ceitain appearance mad? not against n party, if he is involved by tho evidence in a sUate of considerable suspicion, ho is called upon for his own sake, and hi, own safety, to state and to bring forward tho circumstances, whatever they may be, which might reconcile such suspicious appearances with perfect innocence ; therefore the learned counsel of the prisoner, although he entered his protest against his being necessarily required to make such a statement, proceeds to say, that tho case of the prisoner at the bar was uno that was perfectly innocent, that is, perfectly innocent 8.'> far as regards the crime of high treason. He staled that it was never intended by the prisoner either to take tho town or to attack tho military, which latter act was purely accidental ; that all that was intended was, to make a demonstration to tho matcistracy of Newport and the county, the strength of those persons who were called Chartists, for tho signal purpose and design of inducing the magistrates either to procure tho liberation of one Vincent, and three other persona, wto had been convicted of some political offence, and were then confined im Monmouth jail, or, at all events, to procnre a mitigation in their mode of treatn^ent whilst under imprisonment." At page 695 be says: '*If n^ TttlAIS OF FENIAN PHISONEfifr. ■ i there had been no other evidence against the prisoner at the bar 6XC*pt the fact of the conflict that took place between tne soldiers and the mob, who were led en by him, certainly it would have been very important to s«e whether they had any knowledge that there were soldiers there at all, and to show that they had an object, perfectly distinct from any wish to attack the soldiers ; that they meant nothing but to rescue certain prisoners who were confined in the inn. But this is not the whole of the evidence that will be before you on this point ; because you must take into your consid- eration, when you are determining upon the intent and purpose of the prisoner at the bar, not only what took place at the immediate momciit of the conflict at the Westgate Inn, but also the information which he had received just before from the witness Coles, that some of the soldiers had gone to the Westgate Inn j the conversation in Frost's presence on that occasion ; and still farther, the general evidence relating to tho bringing down so large a body of men into the town. This must have been done with some intent or other: what that was you will have to determine upon the whole of the case." At page 748 it is stated that the mere de- mand by an armed mob that Her Majesty's troops, whilst they were under arms and acting in preservation of the peace, should surrender themselvea as prisoners was not only an act of a very hostile nature, but that it amounted to high treason; and at page 764 it is stated that "a premedi- tated design to attack the soliders, willcongtitute high treason." There are also many other passages in this admirable charge, containing a clear expos- ition on this important part of the law, which quite warrant us in forming the opinion we nave expressed, but which in no instance countenance the doctrmo which was put torward by ihe prisoner's counsel. In the Queen vs. Finkle (15 c p. 453) the inexpediency of granting rules nis''' in criminal cases, where there \vas no probability of their being made abso- lute, was referred to, and acting on tne views then expressed, we think we ought to refuse the rule. The rule will therefore he refused a nd the con- viction is affirmed. THE QUEEN AGAINST PATRICK McGRATH. Court ok Queen's Bk.vch, March 9, 1867. Draper, C. J., and Haoarty. J,, delivered judgments in this case . The prisoner was indicted under the third section of Consol. Stat. U. C, ch. 98— that it, under ihc section substituted for the third section of the original act, and directed to be taken and read ad such third section, by the statute 29-30 Vic, ch. 4, sec. 2. The substituted third section read thus : " Every Huhjeot of Her Majesty, and every citizen or subject of any " foreign state or country, who has at any time heretofore offended or "may at any time hereafter offend against tho provisiori of this act, is "and shall be held to be guilty of felony, and may, notwithstanding tbt " provisionfl hereinbefore contained, be prosecuted and tried before any •' court of Oyer and Terminer and General Jail Delivery, in and for Rny '• county in Upper Canada, in the same manner as if the offence '.ad been '• committed in such county, and upon conviction shall fliiffer death as u •' felon." The third r^ection, for which thi« was subjrtituted, oontainbd substantially the same piovisions, but oxtonded only to citiaens or subjectn of any for- eign stttte or couDtry. JUDttltt -xiT3 OF THE 8UPEE10B COURTS. 219 By the first section of this act (ch. 1)8) any citizen or subject of any foreign state or country at poace with Her Majesty, who is or continues in arms against Her Majesty within Upper Canada, or commits any act of hostility therein, or enters Upper Canada with design or intent to levy war against Her Majesty, or to commit any felony therein for which any person would, by the laws of Upper Canada, be liable to suffer death, may be tried and sentenced by a Militia General Court Martial. The second section is, that if any subject of Her Majesty, within Upper Canada, levies war against Her Majesty, in company with any subjects or citizen of any foreign state or country then at peace with Her Majesty, or entPTS Upper Canada in company with any such subjects or citizens with intent to levy war on Her Majesty, or to commit any such act or felony as aforesaid, or if with the design o'* intent to aid or assist ho joins himself to any person or persons whatsoever, whether subjects or aliens, who have entered Upper Canada with design or intent to levy war on Her Majesty, or to commit any such felony within the same, sach subject may be tried by a Militia Court Martial, in like manner, &c. Under this act the prisoner was indicted at the court of Oyer and Ter- miner and General Jail Delivery held in and for the County of York, on the 13th January, 18fi7, before Morrison, J., charging him as a subject of Her Majosty, that ho on, &c., al &c., in Upper Canada, in companv with divers citizens of the United States of America, then at peace with Her Majesty, feloniously did enter Upper Canada with intent to levy war against Her Majesty, against tho form, &c. The second count stated tha* certain poisons entered Upper Canada with intent feloniously to make war on Hor Mtjesty, and that the prisoner feloniously joined himself to such persons with iiitent and design to assist tbf>m in levying war. The third count stated that the prsoner, in company with divers citizens of a foreign state (as before), who were unlawfully and foloniously assem- bled, armed, and arrayod in a warlike manner against Her Majesty, did feloniousb- 1 ;vy war against Her Majesty, &c. To this indictment tho prisoner pleaded aulrefwis actiuit, on which the Attorney General joined issue. It was proved that at the court of Oyer and Torminor and General Jail Delivery lield for the County of York, tho prisoner had been, on the 8th of December, 1866, triod upon an indictinont fo*" felony, the first oount of which indictment charged him, '' bein;' a citizen of a certain foreign state, "to wit tho United Stftes of America,'' on, &c., at 4c., And while tho said foreign state wu>i at peace with Her Majesty, with feloniously entering Upper Canada, with divers other persons, with intent to levy war against tho Queen. The Hccond count charijed that the prisoner, being a citizen of a certain foreign state (as in the lirat count) having bofo o then joined hiin • self, and being then and there joined to divers other persons, wan felon- iously in arms against Her Majesty, within Upper Canada, with intent to levy war against the Queen, ilc. The third count bogan like tb« othur two, an'l allegwd that tho prisoner, having before joined himself and bt.'ina then joined to divers other persons who were foloniously in arms aijainst Her Majesty, did feloniously commit an actof hoatility against Her Majesty willtin Upper Canada, in this, that, he and the said other persons. arme v. Wigqcs, lb. 4,') b ; (Xm. Dig., Indictment, li 9 Cox 58. K. McKcnzie, Q. C, contra, cited Re^ v. Sheen, 2 C. & P. 634 ; Rex V. Wildey, 1 M. & S. 184 ; Regina v. Atistin, 2 Cox 59 ; Vandorcomb^ s case, 2 Loach C. C. 720; Rex v. Clark, 1 R. & B. 473; Rex v. Birchenou(^h, I Moo. C. C. 477 ; Regina v. Gould, 9 C. & P. 364. DRAPLll, C. J. — If the prisoner might have been convicted upon the first indictment, although in fact ho was acquitted by a mistaken direction of the judge, he may plead flM/rc/bis ac^i«'<. As where S. was indicted of burglary laid upon the Lst August, and the evidence shewed it was done on the 1st of September, and not on the first of August, and thereupon ho was acquitted, and again indicted, laying the true day, it was held he onght not to be tried again "for he moiight have been found guilty on the first mdictment" — 2nd Inst. 318. Therefore, if the pubstituted section in substance and effect n-.alce3 it indifferent whether the prisoner was a citizen of a foreign i tate, for that the offence and felony are the same, then his acquittal when charged us a foreij^ncr, though by direction of or in accordance with the opinion of the judge who tried him, is an acquittal of the felony, and he cannot be put a second time in peril on account thoreot. The words are even/ subject of Her Majesty, and every citizen or subject of R foreign state, who has, &e. it is contended that these words mean neither more nor less than every person, who has, &c. But the section goes on thus, " who has at an^ time heretofore offended or may at any time hereafter offend against the provisions of this act, is nnd shall bo held to bo guilty of felony," &c. As the act originally stood, a British subject could only be tried by court martial for the compound offonco described in the second section, and that second section does not constitute the compound offence a folony. If it has done so, I apprehend the trial might have been before the ordi- nary tribunals as well as before a court niurtial. The second section is not in express terms altered by the laKor statute, nor, as far as I see, was it the intention to alter it further than by declar- ing the offence, defined to be felony. It is a felony not simply t onsisting of levying war in Upper Canada against the Queen, or of enlermg into Up- JCJDGMENTS OF THE 8UPERIOR COURT^;. 931 per Canada with intent to levy war, or to commit any felony therein punish- able by death ; but the doing these or some other acts in company with for- eigners, with the intents mentioned, or either of them ; and this enactment IB confined to British subjects. 'J he first section points at the subjects of foreign states at peace with Her Majesty, and does not combine the acts which in the socond section are made punishable with an association with Bri'.ish subjects, Under it foreigners may bo tried and convicted, though none but foreigners have offended. British subjects do not commit the statutable felony unless by reason of their association with foreigners. The offence against the acts committed by a British subject, requires proof, not only of the status as such subject, but also of the joining with foreigners in the commission of it. The same evidence, irrespective of national status, which will convict the foreigner, would not convict the subject ; a man indicted under this act as a foreigner is entitled, on proof of his being a subject, to an acquittal, because as against the subject additional averments and proofs are necessary. I think, therefore, that the substituted section does not make the change in the law which was suggested, and that the new third section must be construed as intended to preserve the distinction between the offences committed by a foreigner or a subject of Her Majesty. But apart from this, it is contended that the substance of the offence char,'ed in both the indictments is the same. I think the authorities lead to a contrary conclusion. If A. commits a burglary, and at the same time steals goods out of the house, if he be indicted for larceny only and be acquitled, yet he may be indicted for the burglary afterwards. And e converso, if indicted for the burglary with intent to commit larceny, and he be acquitted, yet he may bi; indicted for the larceny, for they are several offences, though com- mitted at the same time. See 2 Hale, '245, where other analogous cases are also put, and among them this : that a man acquitted of stealing the horse, hath been arraigned and convicted of stealing the saddle, though both were done at the same time. In more modern times Vandercorab's case (2 Leach TOH) sustains the same doctrine, and contains a reference to leading authorities down to that period. I refer also to Regina v. Glsson['l C. & K. 781) Regina v. Green, (2 Jur. N. S. 1140), and Regina V. Kidght, (I Leigh & Cave, C. C. R. .378). A comparison of the two indictments brings to view variances which are substantial, not mere differences of time, place or quantity, such as by averment, might always be shown to be merely form, and not of the essence of the oflence chained. It is (juite true that on the first indict- ment, if hn had been a foreigner he could have been legally convicted, but inasmuch as the evidence then given proved he was a British subject, his life nevpr was in legal peril up jn if. It is not enough to say that possibly on the first trial he might have been unable to prove his actual 5^a<«.