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Les diagrammes suivants illustrent la m6thode. 1 2 3 1 2 3 4 5 6 ,-^ / V''' SUTHERLAND'S OF THE PROCEEDINGS ON THE TRIAL OF MAGKENZIE, C,/f./9Ji-s^6 ^:. / i CANVASS OF THE PROCEEDINGS ON THE TRIAL OF WILLIAM LYON MACKENZIE, FOR AN ALLEGED vrOLATIO^f OF THE NEUTRALITY LAWS OF THE UNITED STATES ; WITH A REPORT OF THE TESTIMONY— THE CHARGE OP THE PRKSIUING .;UDGE TO THE JL'RY-THE ARGUMENTS OF THJE UNITED STATES ATTORNEY-AND A PETITION TO THE PRESIDENT FOR HIS RELEASE. BY TH: JEFFERSON SUTHERLAND. SACKETT & SARGENT, PRINTERS, No. 1 Nanau-street, corner of Wall. 1840. ^ ^ nr V -v (/ ■JV:. .;.«!». Ws #: K > - ) Jf /■> /a r 4 5 ^' gf ^1 ADVERTISEMENT. The sole object of this publication, is, to cause the President of the United States to be put in possession of a sufficient justifica- tion for pardoning William Lyon Mackenzie, now imprisoned in the common jail of the county of Monroe. It must be known to the American public, that since the con- viction of Mackenzie, numerous petitions for his pardon have been sent in to the President from different sections of the coun- try — and that these petitions have borne the names of many thou- •ands of our most respectable citizens. But, yet, there has been no action by the President on these petitions, and Mackenzie remains a prisoner still, under the sentence of the court. So far as I am informed, the matters presented for the consid- eration of the President, by the petitions in Mackenzie's behalf, ("and upon which his pardon has been asked,) exhibit no ground for the Executive favor, except that of mercy ; .ind on this ground, a pardon could not consistently be granted to Mackenzie, un- less a like favor was conferred on all the other individuals who have been convicted on like cliarges under the same law — and who have as great, and perhaps superior claims, to urge for Biercy. Then, the pardoning of those already convicted for a . Violation of our neutriility laws, would have the effect to put an end to further prosecutions for like offences. Any act which may produce such an effect, cannot reasonably be expected at the hand of the President at this time. The law under which Mackenzie was convicted, is, in no man- ner, a domestic affair of our own, but a ])art and parcel of our treaty relations with the United Kingdom of Great Britain and Ireland, (as it refers to the case in question,) and while there is yet peace between the Sovereign of tliat Kingdom and \hese ^United States, no extension of mercy can be given by the execu- tive of this country to any individuals who have been les;aUy con- victed of offending against tliat law, without violating the faith of our treaty relations — and thorefore it should not be expected. Nevertheless, to correct a violation of our own laws, brought about by the irregularity of a judicial proceeding, would be no act of mercy to an offender — but the mere doing of justice to an individual, and respect to our own institutions ; and a per- formance of that constitutional duty of the President which re- quires him to cause the " laws to be faithfully executed" — and for this none would have a right to complain. In the foilowinyon iMackenzie, was ron- Ticted upon insufticient testimony, and contrary to lew ; as will aj)pear, as your petitioner believes, from an examination of *'./ Canvass oj llic pun cadhi^-s on the trial of llu said William Lyon JWaclcnziv^'''' ad- dressed by this deponent to the Hon. Smith Thomp- son, a copy of which is hereunto annexed, together with the ARiuMENTs of the United iStates Attorney, mode up and published by him, since said trial. Wherefore, your petitioner prays, that the Frt-1- dent will require a report of all the proceedings on the trial of the said William Lyon Mackenzie, ■ om the Hon. Smith Trompson, the presiding judge, L*'d make an examination of the matter — and tbat ic.^j.n'r^ 1o the laivs ami justice to th<' individual may be done, by there being exercised in favor of the said Will- iam Lyon Mackenzie the pardoning power of the Executive. i'our })etilioner is aware that the process of the courts, and the laws of the United Stales, afford the means for a correction of any such errors of proceed- ings as those alleged to have occurred on the trial of the said William Lyon Mackenzie; but, when it is recollected that the said William Lyon Mackenzie is an alien, and a stranger in the country ; and that he 18 altogether unacquainted with the process and pro- ceedings of our courts ; and, therefore, that be may hive been ignorant of the privileges of our laws, un- til it was too late for him to avail himself of those privileges ; or, if his rights were known to him, from his poverty he has been unable to procure counsel to apply for, and prosecute a re-hearing of his cause^ your petitioner believes the interference of the Presi- 4'i B'ri dent, for the purpose of dispensing legal and substan- tial justice, will be deemed, in tiiis instance, to hare been called for. And your petitioner would further represent, that in soliciting the pardon of the said William Lyon Macken- zie at the hand of the President, he asks no favor for a friend. That if the said William Lyon Mackenzie had been legally convicted of the offence with which he was charged, his case, as your petitioner believes, would then have presented no ground for the inter- ference of the President — but your petitioner being conscious that the said William Lyon Mackenzie is not guilty of the charge upon which he has been con- victed, your petitioner is unwilling that the laws of his country should suffer discredit, by an irregular and unjust condemnation of the said William Lyon Mackenzie — and for this reason, and no other, your petitioner asks that his prayer, herein before contain- ed, may be speedily granted. And your petitioner will ever pray, &c. TH: J. SUTHERLAND. New- York, Dec. 27, 1839. and subsian- ance, to hare -esent, that in -yon Macken- no favor for >n Mackenzie e with which )ner believes, for the inter- titioner being Mackenzie is ias been con- t the laws of an irregular '^illiam Lyon > other, your bre contain- er petitioner IRLAND. SUTHERLAND'S AFFIDAVIT. ss. Jn the matter of the trial and conviction of William Lyon Mackenzie, late of the city of Toronto, in the Province of Upper Canada, in the United States Court, on an indictment charging him with having . " in 1837, within the territory and jurisdiction of f of the United States, began, set on foot, and provid- ed and prepared the means for a military expedi- tion, or enterprize, to be carried on from thence, against the dominions of the Crown and United Kingdom of Great Britain and Ireland." State of New-York, ) City and Cotmiy of Neiu-YorJc, 5 Th : Jefferson Sutherland, Attorney at Law, /^Deing duly sworn in the form and manner provided by the laws of the state of New- York for the taking of oaths, does depose and say — that in December, A. D. 1837, he resided in the city of Bufiklo, in said state of New-York. That in the early part of December, this deponent was engaged with a number of the inhabitants of the -Province of Upper Canada, and others, in preparing |the means to effect a political revolution in said Province. That on the 11th day of the said December, as this deponent now recollects, this deponent was inform- ed, that William Lyon Mackenzie, late of Toronto, in Upper Canada, had arrived in Buffalo ; and that i 10 this deponent then called upon, and had an interyie\Y -w with the said Mackenzie, at the house of Dr. Chapin, li in said city of Buffalo. m That this deponent had never, to his knowledge, in seen the said Mackenzie, previous to the said 11th oi \n December, nor had he ever before held any manner at of intercourse with him; and this deponent verily 4< believes that the said Mackenzie had no knowledge I^ of the intended revolutionary movements, the means at for which, this deponent and his co-operators were T then engaged in preparing. w That when this deponent called upon the said Mac- Ic kenzie, he, this deponent, was informed by him, that p he, Mackenzie, had came to Buffalo for no other pur- m pose than to avoid an arrest by the British Govern- d ment in Upper Canada — which statement this depo- nent believes to have been true. ^ That the motive of this deponent in calling on the oi said Mackenzie on the 1 1th of December, as aforesaid, was to ascertain from the said Mackenzie his object in coming to Buffalo — and to induce him to do no act which might interfere with the intended movements of this deponent and his co-operators, with whom the h said Mackenzie was not then included. That the ti said Mackenzie, at the interview, aforesaid, gave his f< assurance to this deponent, that he would immediate- ti ly leave the city of Buffalo and retire into the inte- • rior of this state, where he would contribute articles ^ to some public newspaper, which should favor the « movements proposed by this deponent, and those who ^ were his co- operators — and that he would not person- t< ally interfere with any further revolutionary move- * ments in the Canadas. ^ That previous to the interview of this deponent n »1 ^ ii e< 11 ad an interyie\r 5 of Dr. Chapin, his knowledge, the said 11th oi id an}' manner leponent verily no knowledge ents, the means operators were >n the said Mac- led by him, that )r no other pur- British Govern- nent this depo- n calling on the er, as aforesaid, nzie his object im to do no act ded movements with whom the ded. That the resaid, gave his uld immediate- e into the inte- ntribute articles ould favor the and those who )uld not person- utionary move- this deponent iprith the said Mackenzie on the 11th of December, 1837, he, this deponent, was informed that a public peeting had been appointed to be held at the Theatre, f$k Buffalo, on the evening of the 12th of said Decem- t|er ; and that the said Mackenzie was to be present IKt the meeting, and to address the people. That this deponent, at his interview, as aforesaid, with the said Mackenzie, requested him, the said Mackenzie, not to attend the said meeting appointed to be held at the Theatre, en the evening of the 12th of December — which request the said Mackenzie declined to accede tf , on the ground that it would be disrespectful to the people of Buffalo, for him to absent himself from the meeting, after having accepted an invitation to ad« dress them. And this deponent further says, that he was present at the public meeting held at the Theatre, in the city of Buffalo, on the 12th of December, 1837 ; the same spoken of by the witnesses on the trial of the said Mackenzie ; that he, this deponent, went to the meet- ing in company with the said Mackenzie, and remain- ed with him while there, and then left the meeting in his company ; and he this deponent has no recollec- tion that the said Mackenzie while there " called for volunteers, arms, ammunition," or any other con- tributions ; and if the said Mackenzie had asked for •ay such contributions, this deponent believes he Utould have heard it. That previous to the meeting #the Theatre, on the 12th of December, there had blen in the city of Buffalo a public meeting convened, to consider the condition of the people of the Canadas, at which meeting, there had been appointed an Execu- tive Committee, for the purpose of " calling future "^^etings in relation to the affairs of the Canadas — and U 12 to adopt such other measures as might be called for by public opinion." That after this meeting on the 5th of December, this deponent had been absent from Buffalo, and having returned on the evening of the 11th, he, this deponent, was informed, as aforesaid, of the meeting, appointed for the 12th, to be held at the Theatre. That after learning of tlie appointment of the meeting for the 12th, he, this deponent, saw one of the committee appointed at the previous meeting, and complained to him of the calling of the subsequent meeting — when this deponent was answered by that gentleman of the Committee, " that the meet- ing had not been called by the Committee." That this deponent then declared to the said member of the Committee, *' that the holding of this subsequent meeting was calculated to frustrate the intended oper- ations in which this deponent was then concern- ed — and in its effect, more likely to injure than bene- fit the cause of the Canadian Patriots. That to this, the gentleman of the Committee replied, " that this deponent might possibly get something out of the tail of the meeting to make up for the injury received.' That this deponent then attended said meeting, on the 12th of December, and while there present, was call- ed upon by the audience to address them — and die so — and in conclusion, said — *' he was going to Can- ada as a volunteer, to assist the people of the colonies in achieving their independence" — and then askec " if there were any others present in the assembb who would go." That, then, as the meeting was a- bout to be brought to a close, this deponent request- ed a gentleman who was present, to ask the people composing the assembly, to contribute " arms ace munitions of war for the benefit of the people of Cm' 13 ;ht be called for Tieeting on the een absent from evening of the , as aforesaid, of J be held at the appointment of lonent, saw one jvious meeting, : the subsequent 5 answered by * that the meet- imittee." That d member of the this subsequent e intended oper- s then concern- njure than bene- I. That to this, replied, *' that jthing out of the njury received.'' I meeting, on the resent, was call- them — and die is going to Can- e of the colonies -and then askec in the assemblj meeting was a- jponent request- to ask the people bute " arms ace le people of Can- Ida — and to bring such as they should be disposed to contribute, to the Eagle Tavern, in the city of Buffalo, where they would be received."" That this request then immediattely complied with by the gentle- as I an to whom it was made, without having communi- ated with Mackenzie on the subject That this de- ponent had not spoken or conferred with the said 5^ackenzie on the subject of asking any such con- tributions of the people of Buffalo. That he, this de- ionent, was induced to request the solicitation for arms, &c. to be made, by the suggestion given him ^ the gentleman of the Committee, before mentioned. Ithat this deponent verily believes, he, the said Mac- kenzie, had no knowledge that a contribution of arms, «r any thing else, would be asked for the benefit of the people of Canada, at the said meeting on the i2th of December, until the same had been done. I And this deponent further says, that after the said ineeting on the 12th of Dec. had adjourned, a proces- •jon was formed in the street, with a band of music, with which this deponent marched through several lireets of the city of Buffalo, as he now recollects, iput, that this deponent did not see or know of the laid Mackenzie being with the said procession ; and If the said Mackenzie had been with it, this deponent iDelieves he would have known it. • That after the meeting at the Theatre on the 12th |||f December, this deponent having collected a quanti- of arms, munitions of war and military stores, he jmoved the same to Black Rock. That this was )ne without tho knowledge or advice of the said Jilackenzie. That this deponent did not ever commu- nicate to the said Mackenzie the object he had in view an proceeding to Black Rock on that occasion. i» That while this deponent was at Black Rock, sonie B I' • i « 14 individuals brought down to that place a quantity of muskets and soldiers' accoutrements, which were claimed by one Lester Brace, and some others, as hav- ing been surreptitiously taken from the Court House in Butfalo. That while Brace and the other individu- als were at Black Rock for the purpose of claiming and ta.xing away the arms mentioned, as they alleged, the said Mackenzie came there without the request, and contrary to the wish and desire of this deponent, and objected to any of the arms claimed by Brace being carried away, and got into a dispute with one Barton and others, which induced this deponent to request the said Mackenzie to go away ; which he, Mackenzie, refused to do ; and this deponent then left B!ack Kock and went to Buffalo, for the purpose of procuring a gentleman there, to go down and bring Mack^ nzie away. That after the first intended enterprise in which this deponent had been concerned, had fallen through, (about the 1 4th of Dec ) this deponent, at the sug- gestion of some other individuals, but without the knowledge or privity, advice or consent of the said Mackenzie, conceived a plan for organizing a military force on Navy Island, in the Province of Upper Can- ada, and commenced the necessary arrangements for that purpose. That when these proceedings were en- terctd upon, there was no arrangement or understand- ing between this deponent and the said Mackenzie^ that he should be engaged or concerned in any such matter ; and this deponent had then no belief or thought that the said Mackenzie would join him, or become in any manner concerned in the organization, o: the maintaining of a military force on Navy Island. That when the said Mackenzie joined the persons who were acting with this deponent, and who were m 16 i a quantity of which were thers, as hav- ; Court House iher individu- >e of clnimins: they alleged, it the request, his deponent, y i3race being h one Barton to request the le, Mackenzie, ;ft Black Kock )f procuring a ng Mackenzie rise in which fallen through, it, at the sug- t without the nt of the said zing a military jf Upper Can- rangements for dings were en- or understand- lid Mackenzie, id in any such no belief or i join him, or i organization, 1 Navy Island. id the persons md who were then about to take possession of Navy Island, this de* ponent objected that the said Mackenzie had been Drought to join them — to which objection this depo- lent was answered *' that it was feared by the people ni Buffalo, that the Governor of ihe Stale of New- York would surrender the said Mackenzie to the Briti.sh authorities in Canada, on the request which had been made for him by the Governor of the Upper Province ; and that he had been sent down by them, to place him safe from an arrest and surrender ," and ibat with the motive of his own personal safety, and liio other, as this deponent verily believes, the said Mackenzie entered upon Navy Island. And this deponent further says, that he was one of the principal officers who took possession of Nary Ikland, and organized a military force thereon, in Jjec, 1837; and this deponent knows of no means hav- .rag been provided, or prepared by the said Mackenzie JK>r that purpose ; and if the said Mackenzie had pro- vided, or prepared any such means, this deponent be- lieves it would have come to his knowledge. And this deponent further says, that he did not at any time receive any money, or other means, from the laid Mackenzie, to be used or expended in the organ- i2ing and maintaining of any military expedition or interprize set on foot, or begun in the United States, to "he carried on against any other nation or people with ^hom we are at peace — and that this deponent has liot at any time acted under, or bf^en directed by the jirders or suggestions of the said Mackenzie. And ibrther this deponent says not. TH: J. SUTHERLAND. Sworn before me the 19th > day of December, 1839. \ Andrew Warner, Commissioner of Dsedt^ \A ^^ A CANVASS m u OF THE PROCEEDINGS ON THE TRIAL OF ^ WILLIAM LYON MACKENZIE. t1 K b ft c y o ti V i; t 2^0 the Honorable Smith Thompson, one of the Jus- tices of the SujJi'eme Court of the United States oj *B.merica, ■({I Sir — Believing you to possess a principle of jus- tice that will command you at all times to respect the rights of individuals, though they may be surround- ed by a mist of prejudices — and that you are not without that spirit of candor and frankness whicli particularly becomes those whom the confidence oi the citizens of the United States has called to fill the most high and exalted judicial stations of our country, I have assumed the liberty of addressing to your hon- or " Ji Canvasfi of the Proceedings on the Trial of Will- iam Lyon Mackenzie ^"^^ before an United States Court, held at Canandaigua, in June, 1837, (at which your honor presided,) on an indictment charging the said Mackenzie with having " within the territory and ju- risdiction of the United States, began, set on foot, provided and prepared the means for a military expedition and enterprize, carried on from the United States against the territory and dominions of the Sove- reign Queen of the United Kingdom of Great Britain and Ireland." On which trial Mackenzie was con- victed and sentenced by your honor, as presiding judge, " to pay a fine of $10, and to be imprisoned for the IT e trial of :nzie. one of the Jus- United States oj rinciple of jus- es to respect the ay be surround- at you are not rankness whicli confidenee of called to fill the IS of our country ing to your hon- he Trial of Will. ted States Court, (at which your larging the said territory and ju- n, set on foot, for a military from the United ons of the Sove- of Great Britain cenzie was con- I presiding judge, prisoned for the :m of one year and six months in the common jail lifthe county of Monroe," where, in pursuance of ilid sentence, he now reniains incarcerated. The object of this Canvass, is, to exhibit th^ fact tfcat Mackenzie has been cojivicted contrary to the ev- idence exhibited asrainst him, and the law applica- ble to his case— and that he is, therefore, now suf- fering an impribonnient under an illegal and irregular condemnation ; and if 1 shall succeed in convincing yibur honor, as 1 believe I may, that the proceedings tMb the trial of Mackenzie were irregular and defec- W^e, I niust believe your honor will then immediate- ly^ comniunicate an opinion, to that effect, to the Pres- ident of the United States, to the end that he may iiiiuse justice to be done to the individual, and respect li^ be given to the staiutes and laws of our country, by ■tikercising the pardoning power of the Executive in faits favor. •Your honor will understand that I ask no favor for afriend— nor do I write for an individual whom I es- teem. But being conscious, from my own personal ktoowledge, that Mackenzie is not guilty of the charge for which he has been condemned, and for which he H now suffering the penalty; and from an examina- ^n of the published reports of the testimony addu- tiid on the trial — the ar^umants of the United States torney, made up and published by him since the al — and your honor's charge to the jnry, believing to be plain and palpable that he has been convicted ll^n the showing of facts, which, however true in themselves, are entirely insufficient to hold him cul- pable within the intent and meaning, or proper con- itruction of the letter of the law under which he has %feen indicted and tried, the respect and love I bear C \A !l I tr iiii' IBif' e IH for the institutions and laws of my country, hate C moved me to make this appeal to your honor, tha: /, " the innocent" may no longer be made to suffer ai p the hand of the law, whether he be friend or foe. In the indictment, the first count charged Mac kenzie with having " within the territory and jurisdic tion of the United States of America, began a cer. c iainmiliinry expedilion, to he carried on from thence ^ against the territory and dominions of Iler Bt^ilanic ^ Majesty ; the said United States then being at peace * with Her Britanic j'Mcijesti).''^ The second and tliirc ** counts were alike, and charged him with havinff sel ^* mi fool a certain military cnterpvizc, to be carried on " under like circumstances, against the dominions ol " Her BriUmir, JS'Jajesly. The fov.rtli mid fij'lli counts t were alike, and charged him with having provided tlu * means for a certain military eapedHion, to be carried ' on under like circumstances, against the dominions P of Her Britanic Majeshj. The sixth and seventh counts were alike, and charged him with having jsre- pared (he means {or a certain military expedition ^ to be carried on under like circumstances, against the dominions of Her Britanic J\lajestij. The eighth and ?'tfi^/i counts were alike, and cherged him with hav- ing provided the means for a certain military enter- prize, to be carried on under like circumstances a- gainst the dominions of Her Britanic Majesty. The i«n/ the nhove rse of all :es. (h in- j» inere are pursued : g of the Stat- nutted against to its true in- 'i offence ? and meaning ^vhichnioved nt. This is 1 construing ^"^- h p. CI, sf paragraph has said— ho might be government elaJions and and in the Hie jury, it pedition to n the Uni- some pow- he statute, orney are ed mean- 8 the Uni- 4 i 21 ted States Attorney has gone on and giren a more extended construction to the law, which 1 conceive it does not admit of — and which, I believe I shall be able to convince your honor, was altogether in error; and that it tnnst have had an unjust effect upon tho minds of the jury in their determination of the ques- tion of the guilt or innocence of Mackenzie. The whole extent of the provisions of the statute un-^ der which Mackenzie was tried, and the only acts made penal by it, are the he^inning, or the setting on foot, or the providiiiii;, or the preparing of the means for a militarT/ expedition or enterprize within the ju- risdiction of the United States, to be carried on from thence against some country or people at peace witk the United States — and no more can be properly giv- en to it. Yet, it was said by the United States Attorney, in his statement of the cause to the court and the jury, (as it appears by his 7th paragraph,) ** that he had reflected much and deeply upon the construction which this provision of the act of Con- gress should receive ; and afler consulting the most approved authors in our language, he felt satisfied, that no person, whether citizen or alien, can, within the territory or jurisdiction of the United States, en- ter upon, commence, promote, or put forward, or sup- ply, procure, or make ready the instruments for any warlike undertaking^ or attempt, or attack, to be con- veyed or conducted out of the territory and jurisdic- tion of the United States, into the territory and dis- trict of country; or to oppose or put down the author- ity of any fpreign prince, or state, or of any colony, or people, with whom the United States are at peace, without subjecting himself to a prosecution under tbitf act." Now, the most of these terms are unknown to the provisions of the statute— and, surely, the learned w •t^wf^ 22 ? ■t gentleman must have hpfnrr^^ 1 1 • h too much refleciro3„l^ '^-^oning facahies "on ofthestatuteofisis oH,r''"'5°'" ''''«««<=- came to such a strained conol.li """''^ "^"*' have ;j.;raW, Which,. ev^;S---J-ea„. as I perceive, to give it such i . "'^ "''''" '"'"'red, tions met with so much suo.r ^ ^ "'^S'-et his exer- the result ofMacIc^n^.vS ''^^,7'^*""'' ^r t is shown by the 7th para iTath ^f i"''' ">« j"ry, as the cause, that this provision of L.." ^'="«'n<'nt of what m legal parlance is cL°"edtl.f "^'f '' " ''"^ "ot use of; and that we must "esont "' '"""'' "^de to ascertain what particuL act 4eh" *"'''^^'"'«« en ;" and from this he start^^ ,? "'^'"^'n foi-bid- t'on, and anon he was lo t n f °," '"^'""° of reflec- the statement of the Un^llrf" I, '=/°"'', ' ^n answer to -tosay that if this '^rxt'c\t%fr{' '^"^^ 181S, contamsno techniV»l . • '"« statute of Plam English ones, whX ed™\;' ^»«« conta,"/ by a school boy. The termslffi/ „ '"'^"nde'-stood not tobe readfiy co'mpre'rendeT" Th '"^ '^^" kn«>vn stituted by the mere coming!;' n ^^ ^'^ "ot con- njen at the impulse of the Imfn,^? <"■« """ber of the gratification of idle currsL '' ""^ "t"""^' °^ ^r possession of arms and muSro;' \ "'^ •>«« d.v.duals-but by the organilat.vfn 7^' ^^ ^ '"^'^ '">- expedfion or^enterLl^^h ' '"""=">' <=haracter for with subordinate officers' a^r-u"'"'" ^ commander •1 ¥:&:' -» 23 'ng faculties of this see- never have 1^ the mean- 's P'ain and as no misti- 'as labored, et his exer- ^tlenced by ^ejury, as atenicnt of '^ lias not, '^nis, made authorities -'n forbid- ofreflec- answer to -y* permit statute of 's contain nderstood '«^«o«, and '" known not con- umber of -e, or for he bare */ew in- '1 some 3ter for inlander togeth- e supe- ■•« 'iil|: nor the right to control the inferior. Without such organization, there is no military character establish- ed — and no body of men would be able to carry on either expedition or enterprize ; they would be alto- gether powerless, capable of effecting nothing, and need the aid of no neutrality law to restrain them. Cons^ress has never intended to restrain the citi- zens o 'the United States from entering foreign ser- vice — or from furnishing the means for carrying on a war to any belligerents whom they please. Any man, whether he be citizen or alien, has a right to go from our shores and join either the loyalists or rebels of any other country — and carry with him munitions of war, if so he is disposed, and no law is broken there- by — and no treaty obligation infringed. To carry on a military expedition or enterprize, organization is the "notrt thing ; and to prevent this being done within our borders, of forces intended to be marched into other territories, is the object of this enactment of Congress of 1818 ; and this is all that any nation or people have a right to demand, by virtue of a treaty of amity and peace. Then, to constitute a military organization, there are two important requisites or agents : the one who gives t^^e detail of duty, and who must be the commander, and necessarily the one who should begin and set on foot a military ex- pedition or enterprize ; and he who provides and prepares the means, which in all military operations are understood to ba the funds for the payment of the soldiers — and for the purchase of stores and muni- tions of war. Thus, it may be plainly seen, the in- tent and meaning of this sixth section of the statute of 1818, is to prevent the organization of military forces within the Jurisdiction of the United States, to 24 k f ' 1.^ \i act agalDflt a friendly nation or people — to which or- ganization, the first and most essential agents are the commanders, and those who furnish the means, (cither in kind, or monies ;) and such persons are alone intended to be held culpable under this law. This is all it is intended to embrace — and the absurd- ity of the United States Attorney, in attempting to maintain that the law meant more than it has ex- pressed — " that all who entered upon, promoted, or put forward, or supplied, or made ready the instru- ments, for any war-like undertaking, or attempt, or attack, to be conveyed or conducted out of the Uni- ted States, into another country, to oppose, or put down the authority of any foreign prince, or state, with whom the United States are at peace" — (words unknown to the statute,) is so palpable, I can hard- ly suppose the opinion to have been honestly en- tertained by the learned gentleman. In this sixth section of the statute of 1818, there is no ambiguity — and no extension can be given to it beyond its letter. It is a judicial principle, that all penal statutes shall be rigidly construed. It is provided by the British laws, which are still applicable to our country, that *' all penal statutes must be strictly construed." Sec. I4th, George II. Chap. 6; cited in Black. Com. Vol. I. p. 88. Then, in the 15th paragraph of your honor's charge to (he jury, it is said — ''if so be, that an individual participates in the getting up of an expedition, it matters not whether he is at the head of such expedi- tion or not. If he is connected in any way what- ever with the expedition — whether as an olFicer or private, or a mere co-operator — it is all the same — «&ch is equally culpable." How your honor could have for a moment enter<» 25 -to which or- ii agents are the means, persons are der this law. d the absurd- tempting to an it has ex- )romoted, or y the instru- ■ attempt, or of the Uni- •se, or put -> or state, e"— (words can hard- onestlj' en- this sixth nibfguity ti its letter, atutes shall the British "ntry, that led." Sec. Com. Vol. >r's chars;e individual edition, it h expedi- ^a.V what- olficer or same — nt enter* lained such an extraordinary, and as I conceive, er- ironeous opinion, as a lawyer, I am unable to under- Itand. The opinion is evidently against the letter, kis well as the intent and meaning of the provisions of the statute in question — and it is by no means in keeping with the principles of common justice. The words of the statute are " that if any person, &c. shall begin, or set on foot, or provide, or prepare, the means for any military expedition or enterprize, &c." This is all it contains — and if the legislators who en- hctedthe law, had intended to embrace all who ^^'par- ticipated, or connected themselves in any way whatever with such military expedition — whether as an officer or private., or a mere co-operator,^^ it is reasonable, as I think, to suppose they would so have expressed it in the letter of the act ; and as they have not done so — and as it is a rule of law, "strictly to construe a penal statute," it is as reasonable a conclusion that the makers of the law did not intend to include all such persons as culpable — and legal so to decide. As it is remarked in the 10th paragraph of your hon- or's charge to the jury — " This law contemplates an expedition to be commenced or to be set on foot with- in the United States, and to operate upon and a- gainst some power with which we are at peace." But, as it is expressed in the letter of the statute, it must be a military expedition^ or there is no offence committed against this law. In all military operations in civilized countries, it has been usual to hold none others than the comman- ders and principal leaders responsible for the general, acts of the expedition or force. The soldiers or indi- viduals who make up the rank and file of ad army, or military body, in almost all countries, and all indtan- d2 26 e«9, are from the eimple and uneducated. M^ny of them are often drawn into the service, and enlist* cd, without a perfect knowledge of the expedition or eoterprize in which they are to serve — and when once embodied they are held by the cords of military discipline ; and while they are thus compelled to follow the orders, and obey the commands of their superiors, they are in general kep' ignorant of all the intended movements of the expedition in which they are embarked. Can such men, I would ask, be held accountable, by an enlightened and liberal gov- ernment, for the general acts of the armed force to which they may chance to belong ] Justice would say no ! It is the leaders — those who command, and those who furnish the means, (the sinews of war,) who can be properly held accountable — and they are these, alone, who have been named in this sixth sec- tion of the statute of 1818, or who have been inten- ded to be included in the provision of the act, by those who made it. This is a principle recognized not ©nly by the enlightened and polished nations of the eitrth ; but by some people who are accepted only as half civilized, the principle has been regarded; and the only violation of it by those claiming to be of the enlightened part of mankind, of a recent date, is the condemnation to chains and slavery, by the British Government, of a number of Canadian Patriots, taken by their forces, during the late revolutionary movements in the Canadas, who were of but the rank of private soldiers. This, however, was the act of a government which was never known to admit right while it possessed the means of coercion ; or to ac- knowledge justice, while it had the power to oppress ; and if Qur government is now to take precedents of injustice and cruelty from the British, then, indeed, 4 «1 r p\ a IT ■i-^ -?*/ 27 ed. M^ny of :e, and enlist- expedition or e — and when ds of military compelled to lands of their ?norant of all ion in which 'ould ask, be 1 liberal gov- med force to ustice would wimand, and 3WS of war,) ind they are is sixth sec- been inten- the act, by recognized d nations of cepted only arded; and be of the date, is the he British 1 Patriots, 'olutionary ut the rank le act of a dniit right or to ac- > oppress ; 3edents of 1, indeed, 4id Warren die for nothing, and Washington con* quer in vain. On this reasoning, I assume it to be the intent and jiieaning of this sixth section of the statute of 1818, to f REVENT FOREIGN BELLIGERENTS, OR THKIR AGENTS, TROM ORGANIZING MIL'.TARY FORCES WITHIN THE BOR- DERS OF THE UNITED STATES, TO BE FROM THENCE MARCHED INTO FOREIGN STATES AT PEACE WITH THE UNITED STATES — and that its provisions only make <:ulpable, those who are the military commanders, and the officers of subsistence, who furnish the ineans — and who, only, could begin, or set on foot Buch expeditions and enterprizes as are had in view by this law. In this examination of the second branch of the enquiry, I believe I shall be able to show, that by the testimony adduced on the trial of the said Will- iam Lyon Mackenzie, it was not established that any such offence had been committed, (by any one,) as this sixth section of the act of Congress of 1818, was intended to punish. In the 4th paragraph of your honor's charge to the jury, it is said — "if there be any citizen among us who may wish to embark in any attempt to liberate other countries, we do not prevent him, nor does the law. Every man may shoulder his musket, alone, ex- patriate himself, and go into the service of any body of men, or any nation he pleases. It is his right if he pleases to exercise it. Under the sixth section of the neutrality act, nothing of this kind is prevented." Now, then, as your honor has embraced the occa- sion to say that such are the rights of citizens, I shall take it for granted that the same privilege be- longs to foreigners who may chance to be within our borders— though your honor would seem to deny such ^Q V' li application of the principle, in a subsequent part of your honor's charge to the jury. Yet — that there should be the same law for the Jew and ihe stranger, was a principle contained in the Mosaic code — and I have always understood that ours embraced aa much. To us, who are citizens, your honor would seem to say go — but then, like the Egyptian Pharaoh, you follow us with a host for our destruction. The first matter shown by proof, is this; Joseph B, Latlirop, sworn as a witness on the part of the prose- cution, is reported to have testified, " that previous to the taking possession of Navy Island, (of which, however, he made no pretention to know,) in Dec. 1837, a public meeting was held at the Theatre, in the city of Buffalo — that Mackenzie was there and addressed the meeting — told the sufferings of the people of Canada, and drew a parallel between their grievances, and those of our forefathers — alluded to the succor which they had received from foreign countries, and asked for aid from our citizens for the people of Canada. That I was present at the meet- ing at the Theatre, and while standing on the stage near Mackenzie, expressed a readiness to proceed to Canada, and invited others to go with me. That when the meeting was adjourned, he came out and found the street in front of the Theatre full of people — and that there was martial music, and a procession formed, which followed it through the streets of Buffalo ; and that I was one of the procession ;" and it is also reported that one William C. Hoyty ' «" ji as a witness on the part of the prosecution, • '^»ated Lathrop in all the above matters — and c ' testified, " that the procession, with the mu- < ' tp the house of Dr. Chaoin '* •M a] #i ll yi ^1 P til c< w sequent part of et— that there d rhe stranger, c code— and I embraced as honor would »tian Pharaoh, ction. lis; Josephs. of the prose- that previous d, (of which, ^^y) in Dec. Theatre, in s there and rings of the etween their ;^alluded to rom foreign zens for the it the meet- 1 the stage ) proceed to me. That e out and of people — procession streets of •cession ;'' w C. ffoyt, osecution, Iters — and h the mu- 29 *"' Let this all be accepted as true, and what does it amount to in support of the charge ? That American Ijitizens, or aliens even, may not follow a band of mu- $[c through the streets of one of our cities, without fhereby committing an offence afjainst our laws, I am yet to learn. The procession which was formed in ^he streets of Buffalo on that evening, was composed I3f some of the most respectable and wealthy citizens pf our country — and they never dreamed of commit- ting an unlawful act. Nor did we suppose we had jcommitted any offence at the public meeting. The question had been put to the judges of the United States Court, in New-York, by a public meeting, whether it v/ould be a violation of the neutrality act to furnish supplies, money and munitions of war, to enable the people of Texas to carry on war against JVIexico, a nation with which we were at peace. The answer was given, " that the mere meeting together of .individuals, or raising of money, or the collection of arms, to send to Texas, was no violation of this law, because it conttmplaies the jilting out of an expedition in this country^ and sending such expedition to another country ; and we had not then learned there was to be any difference in the construction of the neutrality law in relation to Canada from that of Texas — and there- fore, we could not deem we had done any thing wrong at the Theatre. It is, also, said in the 17th paragraph of your hon- or's charge to the jury, " that there was nothing which Mackenzie did at the meeting wrong — that if he had stopped with what he said in ihe meeting, nothing would be found against him." Then, if your honor will allow this opinion to apply to all who were present at the meeting, no offence was committed there. ^ ^ 30 '\ -l. I'he next matter exhibited is by the testimony of Lester Brace and James L. Barton, who were sever- ally sworn as witnesses on the part of the prosecution. Brace is reported to have testified, " that on the 20th of December, 1S37, (as I find it stated in the report of the testimony ; but it is said to have been on the same night of the meeting, as the testimony has been rehearsed by the United States Attorney,) he went in pursuit of a quantity of arms which had been taken from the Court-house in Buffalo — that he proceeded to Black Rock, and there found two or three wagons loaded with muskets — and persons taking them out and distributing them to 60 or 100 men, who were there, and who shouldered them. That the men then marched down to near the ferry, where they placed a guard across the street, and removed all the muskets into a vacant house. That at about 2 o'clock in the morning he saw me at Black Rock, handing out arms — and that I appeared to be in command." [Brace, in stating that he saw me at the time men- tioned, at Black Rock, handing out arms, labored under a mistake ! It was at the Eagle Tavern in Buf- falo that he saw me — and not at Black Rock.] Brace is reported further to have testified, "that at 9 o'clock in the morning he returned to Black Rock — where there were not so many men as on the night before. That he saw Mackenzie there — that he then asked for the arms, saying they were taken from the Court House. That Mackenzie said he hoped he would not interfere with the muskets, or take them away — that^they were the very property they were trying to get, and what they wanted — and if they had had them at Toronto, they would have succeeded. That Mackenzie said, they wanted the arl in EJ Bi col thl bJ wi ai .1 81 testimony of were sever- prosecution. : on the 20th the report of )een on the )ny has been ) he went in i been taken »e proceeded iree wagons ng them out , who were »t the men where they oved all the 2 o'clock in k, handing 3mmand." * time men- w, labored em in Buf- ;k.] ied, I ^l!^ only one who objected to the arms being taken^— but* notwithstanding) that they did take the arms and car- ry them back to Buffalo." Barton, (as it appears by the report of his testimony — and as it is rehearsed by the United States Attorney,) made no mention of having seen any sentinels at Black Rock; and Brace did not swear that there were any sentinels when he went to Black Rock in the morning ; and had it been light at 2 o^clock,it is in no manner probable he would have seen any thing that looked like sentinels at all. That there were no sentinels at 9 o'clock in the morning, when Brace, Barton and Mackenzie were at Black Rock, is not left a mere matter of presump- tion. It is, as I think, clearly established. As your honor has rehearsed the testimony of Brace in the 19th paragraph of your honors charge to the jury — " Mac- kenzie was the only one who made any objection to the taking away of the arms." Then, it does not ap- pear that either Mackenzie, or the sentinels, (if any such were ever posted,) were very potent in their resistance ; as the testimony of Brace and Barton, shows that they did, in defiance of all objections, take and carry back to Buffalo all the arms they found;'*'* and according to the rc^port of Brace's testi- mony, " he had not much trouble in the matter." What, now, I would ask, Joes this exhibition of facts establish !" That there was a "military array," as your honor has said, at Black Rock. Certainly not. It could not be a " military array" which would al- low two individuals unopposed, to take and carry a- way all their arms. It is a violation of common sense, to suppose the affair at Black Rock, described by the witnesses, to have been an array of any kind— di( sh 35 taken— butt tns and car* appears by ihearsed by mention of and Brace inels when and had it )robabIe he ^e sentinels 3ck in the )nzie were fpresump- As your in the 19th k—" Mac- •jection to 368 not ap- is, (if any t in their d Barton, objections, arms ihny ice's testi- tter." libitioQ of array," as iinly not. would al- 3 carry a- common described y kind — and if there had been any thing like a military expe-* dition or enterprize about the matter — the testimony shows the ending, and not the beginning of it. The testimony of Brace, alleging that he saw me at Black Rock, and of having seen sentinels posted there, is in discredit. It is his bare assertion, unsupported by corroborating circumstances. The time was 2 o'- clock in the morning — a time when darkness pervad- ^ — and how was he to discern, through the curtain of night, who was there, or what was going on ? He says " he saw me there — and I appeared to be in command." Yet, of me, the commander, as he supposed, and the only person there whom he knew, he makes no demand for the arms which he alleges to have came all the way from Buffalo to look after ! I will not pretend to deny that Brace was at Black Rock at the time he has testified — or contradict his assertion " that he saw wagons there, loaded with arms and munitions of war." But, if so, 1 must con- clude that he, in passing near the wagons in the street, ran against some individual engaged in unload- ing the arms, who bade him get out of the way, per- haps with a threat — and that his fears then constraed the man into a sentinel, and magnified some six or a dozen persons into sixty or " a hundred men in arms." And this is all that Brace's story maintains with any degree of probability. In the 18th paragraph of your honor's charge to the jury, it is said, " there was no law which authorized this array, or those threats" — in allusion to the story of Brace about the sentinels. But, then, in this, I believe your honor is altogether mistaken ; as it is provided by Sec. 2. Title V. Chap. X. Part I. of the Revised Statutes of the State of New-York, as fol- lows : ' I 36 m " § 2. It shall be the duties of uniform companiei and troops to rendezvous by companies and troops with- in their respective beats, in addition to their general rendezvous, [first Monday of Sept. — and one day be- tween the first of Sept. and the 16th of November,] one day in each year, at such time and place as their respective commandants may direct — and as much oftener as a majority of all the members of the campany or troop may direct ;" And if there was not this law to authorize a military array, if there had been one, your honor must know, there was no law prohibiting it — and that is one and the same thing as a law to authorize it. In this country, I believe, the right of wearing arms is secured to every one by the constitution and laws. Nor do I understand, if a stranger meet me in the street and attempt to deprive me of my property, or that entrusted to me by another, without legal process, I commit any offence against our lawsy should I threaten to shoot him if he did not desist. In the 19th paragraph of your honor's charge to thejury, itis said, "whether he, (Mackenzie) wa» one of those who started the expedition, or a leader in the expedition, does not appear, nor is it material; for there appears to have been all the regulations of officers, &c. which is usual in military arrays." As to this point of your honor's. c/ia?*g-e, which relates to the construction of the provisions of the statute, I I 've already shown wherein I deem your honor to hive been in error — and the other part of this your hon- or's charge, recited above, I do not find supported by any of the published reports of the testimony, nor by the testimony as rehearsed to the jury, by the United States Attorney. Brace is reported to have testified " that he saw me at Black Rock, where I seemed to '^ ' w z: m companiei I troops with- their general one day be- November,] 5 and place rect — and as mbers of the lere was not if there had was no law same thing of wearing titution and meet me in ly property, ithout legal our lawsy t desists charge ic enzie) was or a leader t material ; ulations of ays.'» As relates to statute, I ir honor to J your hon- pported by »y, nor by he United e testified seemed to to be in command ; and Van Rensselaer, who was call- ed general ;" and this was all that was testified to in relation to there having been any military officers at Black Kock. Then, two officers, and those comman- ders, by no means constitute "all the regulations of officers, which Is usual in military arrays ;" and I conce.ve your honor was greatly in wrong by so charging the jury. In order to give a military character to any body or collection of men, much more must necessarily be done, than what was shown to have existed at Black Rock. The orq;anization of a'' military array ,"^ requires the appointment of officers, not only, but the engagement of soldiers ; and this could not be shown sufficiently, for a conviction under this sixth section of of the statute of 1818, by proof of the mere presence of a number of unknown individuals. These " men and arms'* were sworn by Brace to have been near the ferry, the common highway from the United States to Canada ; and your honor has con- ceded, "that an individual may freely and lawfully shoulder his musket and go into the service of any body of men, or any nation he pleases." Then, I would ask, if it be not extremely erroneous to decide, that when a few individuals, moved by a imilar impulse, but coming from different directions of our country, with an intention, in common, of en- gaging in an attempt to liberate another country, chance to meet or come together at the common place of embarkation, without the proof of any under- taking to serve as officers or soldiers, they have there- by committed an offence against our neutrality laws ; and that the saoue '* arsons would not have been cul- pable if they bad kept out of sight of each othar ! It is f e, to my understanding. II lil.'i' ': mb 98 |, If your honor pleases, I will suppose — a vessel is put up in this port for Matagorda, in Mexico ; I have purchased a quantity of arms and munitions of war which I wish to have conveyed to Mexico, to he used by the Federalists in carrying on their revolution, and 1 ship them as freight on board this vessel. In this there is nothing unlawful. Then, whilst I am em- barking my goods, other individuals of whom I may, or may not, have had any previous knowledge, learning of the destination of the vessel, and wishing to embark in the service of the Federalists of Mexico, come one after another, to the number of sixty, or as many as the vessel can accommodate, and engage their passage ; in this there would be nothing unlaw- ful ; and should any of those who are to embark with my goods, volunteer to assist me in putting them on board — and while they were rendering me such assistance, an individual, without making himself known as an officer, should come up and demand pos- ' session of my goods as stolen property, and then be told by the person rendering me the service of putting my goods on board, to go away or he would shoot him with one of my muskets he may chance to have in his hand, I would, then, put the question to your honor, if the existence of such facts would make me culpable under this sixth section of the statute of 1818 ? My opinion, is, that it would not — and I trust your honor holds the same. Yet, what was shown on the trial of Mackenzie, (giving the fullest force to every word of the testimony, and accepting every word of it to be true,) makes not so much of a case as^'this I have stated'; and I contend that it was in DO manner shown on the trial of Mack ejizie' that tbtrtwa* organized at Black Kock, at the time mtD- 39 • vessel is put CO ; I have tions of war o, to be used t'oiutioD, and sel. In this it I am em- /hom I may, knowledge, and wishing s of Mexico, sixty, or as and engage hing unlaw- ^mbark with ng them on ; rne such ing himself Jemand pos- * and then be -e of putting vould shoot nee to have question to vould make e statute of -and I trust was shown est force to ting every ouch of a that it WIS (ienzicthBt timemtn* tioned by the witnesses Brace and Barton, a military expedition or enterprize, as alleged. But could it for a moment be supposed that any thing shown on the trial of Mackenzie established the charge, or the fact that any offence had been com- mitted, by any one, against the provision of this sixth section of the statute of 181S, I would enquire, what was there to tix the commission of such ofience upon Mackenzie ? As it will have been perceived, I have contended that your honor was in error in supposing that the law could be properly so construed as to hold any one but the commanders, or principal leaders of the expedi- tion or enterprize, as culpable; yet, as in these pro- ceedings under consideration, the distinction does not necessarily arise ; therefore, in this examination of the third and last branch of the enquiry, I shall con- sider the proceedings, without taking the different ground from that which your honor has assumed. ~ That the evidence adduced on the trial of Macken- zie, to establish the fact as charged in the 12th and 13th counts of the indictment, (and there are none others of the counts to which the testimony would ap- ply, as they have not the proper stile of the British Government, which is material,) '' that the Province of Upper Canada was a colony belonging to the United Kingdom of Great Britain and Ireland ; and that with the said United Kingdom of Great Britain and Ire- land, the United States were at peace," was sufficient, there can be no question. The production of the treaty of 1S15, was the best evidence of the fact that could be given. But, while 1 admit that so much of the case was properly made out against the accused, I shall contend that all the material parts of the sev- ill 40 I ' eral averments contained in the indictment, remained wholly unsupported by any legal evidence. The first that was attempted to be proved against Mackenzie, was his speech at the Theatre in Buffalo, on the 12th of December, 1837 ; and as to this, your honor has said — *' there was nothing which he did in the meeting wrong, &c." Your honor then proceeds in the same paragraph — '* but after the meeting, we find Mackenzie joining himself with Sutherland, who asked for volunteers, and begged men to join him, in presence and near by the defendant. Sutherland vol- unteered to carry cut the views of Mackenzie." I must now stop to enquire, what were the vieivs which it was alleged, by your honor, I had vol- unteered to carry out ? Mackenzie had expressed no views of attempting to fit out a military expedition or enterprize in the United States — nor of committing any oflence against the laws of our country. By no means — nor was it testified, that he did so. The broadest scope which could be given to the views al- ledged to have been expressed by Maclienzie, on that evening, I find in the language of the United States Attorney, in rehearsing the testimony of Lathrop, to the jury, which is contained in the 4th paragraph of his canvass of the testimony, it is thus said — '* on the night of the 12th of December, 1S37, there was a very large assemblage of people at the Theatre, in the city of Bufftilo— that Mackenzie was present and made a speech, at the close of which, he called for volunteers and contributions of money, arms, and mu- nitions of war, to aid in the struggle to revolutionize the government of Upper Canada." This is what the United States Attorney had made Mackenzie say, with the help of the witnesses, Lathrop and Hoyt ; I Sf 41 remained d against 1 Buffalo, his, your he did in proceeds eling, we and, who n him, in riand vol- ie." were the had vol- )ressed no edition or )mmitting ^ By no so. The views al- ?, on that id States Uhrop, to agraph of -" on the e was a re, in the sent and :alled for and mu- lutionize ^hat the zie say, I Hoyt; and if he had said as much, and I had volunteered t» carry out such views, I might have proceeded to do so to the fullest extent, independently of myself, or in conjunction with Mackenzie, without committing any infraction of this sixth section of the statute of 181S, or any other law of the United States, if the previous decisions of the Supreme Court of the United States, are now to be regarded. I cite IVIieaton^s United States Reports, Vol. VII. p. 253. Your honor then continues to say in the same par- agraph, " that Sutherland goes out. There is music at the door, and a party follows that music with Suth- erland ;" and your honor then tells the jury — " it is, therefore, for them to say, whether the defendant, (Mackenzie,) did or did not, that night, accompany Sutherland ; although there appears nothing to show that the defendant, (Mackenzie,) ivas with Iiim until the nnxt day at Black Rock.^^ With due deference to your honor, I contend that this was error ; as nothing can be properly inferred against the accused, which does not necessarily fol- low such unlawful acts as have already been substan- tiated by proofs— and as nothing unlawful had been proved against Mackenzie, of his acts at the Theatre, in Buffalo, it was not, as your honor charged, within the province of the jury " to decide whether he did or did not accompany me" — even if there had been any thing unlawful in that act. In this, as well as in many other points, your honor seems to have done violence to the rule of law, which declares " that all those facts necessary to have ex- isted in order to constitute an offence, must be set out in the indictment — and must be proved." In I. Stark, JEvidtnccy p. 444, it is said, " when there is a failuro - p2 ' •• ' mm 4S ■\i U :'4 i ■Vr #■■• I s M ;)^i R^i- '-IF of evidenre to establish any one essential averment, the court directs an acquittal in a criminal cause — or directs the plaintiff' to be nonsuited in a civil case.'* Same authority — p. 371, it is also declared, "that every material and essential allegation, and every cir- cumstance descriptive of its identity, must be proven [not presumed] as averred." Had this principle been recognized on the trial of Mackenzie, I must sup- pose be would have been acquitted. When, as it was testified by Brace, sentinels were posted at Black JRock — AJackenzie ttcus not there. The whole ai;^ ^7 connection Mackenzie is shown to have had jc affair at Black Rock is this. While a quantity of arms were at that place, which Brace and B^> if n had claimed as stolen property — . he came there ana ohjtc^ed to the arms being tak- en away — and said, " they wanted them in Canada— and that as soon as the committee in Buffalo could be consulted, the arms would be paid for, or secu- rity given for them." What brought Brace and Barton to Black Rock? The answer is — to get the arms which were there— and which were alleged to have been surreptitiously taken from the Court House. Then Mackenzie in- terferes to produce an arrangement, and a settle- mejot"- as he says they are wanted in Canada. That arms were wanted in Canada he knew — and if he had but surmised these arms in question were about to he carried into that country, for the use of the PatTiots--it was both natural and proper for him to have interfered to prevent the object being frustrat- ed ; and if there had been a military expedition or enterprize on foot, he might hnwe done all that if Alleged against him, and estabJisbed tbeiet^ no cv* att thf pal wi fr H "^ ^!IV 43 averment, cause — or vil case." ed, « that very cir- 36 proven ciple been nust sup- nels were noi there. is shown k is this, ce, which •operty— eing talc- panada—- lalo could or secu- k Rock? 5 there— Jtitiously enzie in- a settle- Canada. 5w — and on were J use of for him frusirat- lition or that if no ev- idence of his connection with it. He must, in course, have wished success to any undertaking to aid his countrymen to free themselves from British thraidoin---and may not he, as well as an ordinary attorney, interfere to settle a dispute in relation to the title of property, without making himself cul- pable in matters with which he is not other- wise connected? Such is the opinion I hold— and I believe it to be correct. in the 18th paragraph of your honor's charge to the jury, your honor says, *' it has been shown that Mackenzie made a speech to the people, which was calculated to excite them to resist any attempt which might be made to lake away the arms, held by those ^as your honor words it,) in military array," and Irom this draws an inference, that Mackenzie was Connected with the matters at Black Rock. In this your honor, very strangely overlooks the fact that is shown, that whatever may have been the ob- ject of Mackenzie's speech, it had no influence to to produce any such excitement — and that the arms were nevertheless taken, without resistance, and car- ried away ; and that it is not in accordance with the principle of our laws, that any man should be con- demned for his bare intentions. I come now to examine the testimony in relation to the occupation cf Navy Island — and I think I might best begin with the consideration of the 22d paragraph of your honor's i;/irtr;rre to the jury, which, with due deference to your honor, and with a disposition to be altogether respectful, I must say, is one of the most extraordinary advancements I have ever heard of in in a court of law. Your honor savs— ** there is no •vidence to show that Navy Island was occupied by ■M - !f 44 m f , f. an armed force previous to the military congregation at Black Rock. That it is therefore, proper to sup- pose, that that military array was the force which en- tered upon Navy Island, particularly as we have no evidence that it was disbanded, and as we find Suth- erland, defendant and others who were at Black Ruck, on the Island." If this be a legal construction of testimony — if suppositions can be thus extended against an accus- ed in our courts, whose life shall be held secure? or who.se liberty shall be vouched safe to him 1 Let these opinions advanced by your honor become a judi- cial rule, and every banker may be convicted as a rob- ber — and every merchant as a thief. Your honor says — " we have no evidence that, (the affair at Black Rock,) was disbanded." But, let me ask — did not Brace and Barton, both testify " that they took and carried off from Black Rock, all the arms they could find ?'^ And was not the disarming—" a disbanding of the expedition," if there had been one organized ? Was it proved that any individual who was seen at Black Rock, was ever seen on Navy Island, except VanRen.sselaer, Mackenzie and myself? And has not your honor told us that we had a right to shoulder our muskets and go to Canada if we pleased? And where is the evidence that we did not enter upon Navy Island in precisely the manner your honor has told us it was lawful for us to go? I look in vain for it in the published report of the tes- timony — and neither your honor, nor the United States Attorney , has stated any such to have been de- posed. In this, surely, your honor would reverse the legal and just rule, " that a man should be presumed innocent until you have proved him guilty"— for you ifr : :oDgregation per to sup- :e which en- we have no e find Suth- Black Ruck, testimony — ist an accus- leld secure ? ) him 1 Let jcomeajudi- ted as a rob- icethat, (the But, let me estify « that [)ck, all the isarming— "a fid been one ividual who en on Navy and myself? e had a right anada if we that we did the manner IS to go? I of the tes- • the United Jve been de- reverse the }e presumed y" — for you 45 judge him guilty, without having proved one fact which went to make up the offence. Mackenzie, on Navy Island, was in his own country — out of the jurisdiction of the laws of the United States, where he had a right to be; and so far as the United States government was concerned, it was not unlawful forVan Rensselaer, myself or any other citizen of the United States, to he in arms on Navy Island. Then, from the exercise of a lawful act, shall an unlawful one be inferred! If there was nothing wrong in our being on Navy Island — and f.ny possibk manner of our getting there without committing an offence against our own government — no oflTence can be presumed. In law, the possession of property is i^rima Jacie evi- dence of ownership. If an indivdual possess a watch, it is to be presumed he came honestly by it— until it is established by positive proof that it was obtained by fraud or force. It should be presumed that Van Rensselaer, Mackenzie and myself, in proceeding to Navy Island, went in the manner allowed by our laws, until, by positive testimony, it is established that our course was unlawful. Again; the legality as well as the propriety of in- quiring into acts done beyond the jurisdiction of our goveinment, in prosecutions of this nature, may well be questioned. The foreign country which has been entered into by the inquiries on the trial of Macken> zie, has been proved lately to have been in a &tate of civil commotion— and the person on trial to have been in arms against the goverment thereof, which circum- fitanoes, with the fact that the suhpcenas of the court have no force there, precluded even the probability of the accused being able to bring into our courts such witnesses as might be necessary to rebut the teitimonj T^ T 1 40 I II i: 'i ii r, ? i ;! - I ;i-\ t' I- iH ii' of those brought by the United States Attorney ; or of the accused being able to have testimony taken by commission in a country where he is attainted of treason : And then ; the offence created by the pro- visions of this sixth section of the statute of 1818, will always have within our own borders, the neces- sary witnesses to fix it upon the real perpetrators, whenever the offence has actually been committed. That all the testimony given on Mackenzie's trial, in relation to the transactions on Navy Island, was ir- relevant — and ought not to have been admitted. Nor were those proceedings any of the matters charged in the indictment. There is one other point to be examined. In the 2Cth paragraph of your honor's charge to the jury, it is said, " it appears that Sutherland was there, (at Black Rock,) Sutherland who had been at the thea- tre — Sutherland who had aided in raising these forces, and who appeared to be the chief officer of the ex- pedition. Was the defendant, (Mackenzie,) connec- ted with him ?" Then your honor goes on to say, "the answer to this question must depend in part, upon the Proclamation which has been brought into court." This Proclamatioiij which the United States Attorney in the 5th paragraph of his canvass of the testimony declares to be " material and important," is a paper, that one Cadwailader, sworn as a witness on the part of the prosecution, is reported to have testified, '* he was employed to print, in Dec. 1S37 — that the printinjj was done in the city of Buffalo — that Mackenzie read the proof in B:iff*alo — and that part of the edition was sent to Navy Island — but that he did not know that ai:y of them was published in Buf- falo." It was entitled " Proclamation by Wm. Lyou 47 Itorney ; or nony taken attainted of by the pro- ite of 1818, the neces- erpetrators, committed, ie's trial, in and, was ir- nitied. Nor era charged ed. In the o the jury, IS there, (at U the thea- hese forces, ' of the ex- e,) connec- on to say, Jnd in part, rought into litcd States vass of the important," >s a witness •d to have 'ec. 1S37— iffalo— that »d that part >ut that he 'ed in Buf- Wm. Lyou Mackenzie, Chairman pro tern, of the ProTincial [Pro- visional] government of the State of Upper Canada ;'^ and is alleged by the United States Attorney, to bear date, December 13, 1837 — though I do not find in any report of the testimony, that it was so dated. The fixct that Mackenzie issued the Proclamation in question from Navy Island, as assumed by your honor, is unquestionably true; but I cannot perceive that it contains any link of testimony whatever. The Proc' lamalion says — ** We have procured the important aid of General Van Rensselaer, of Albany, of Col. Suth- erland, Col. Van Egmond, and other military men of experience" — but 1 am wholly unable to understand, wherein, this should be, ac the United States Attorney has alleged, " an important declaration and admission'' against Mackenzie. The object avowed in the ProcJamatinn is the es- tablishment of the independence of Upper Canada by an overthrow of the British power therein. An in- tent to do this, included no contemplated violation of the laws of the United States. Nor does the paper have any weight to show Mackenzie's consent to any unlawful act which may have been committed by Van Rensselaer or mvself If the whole of the facts stated in the Proclamation were true, and it had been published with the privity and consent of all those who were therein named, it goes to establish no one fact in support of the aver- ments contained in the indictment against Mackenzie. It bears date at a place within the Province of Upper Canada, where alone is there any proof of its publica- tion ; and contrary to the assertions of the United States Attorney, there was no fevidfence adduced to «haw that it was printed before the occupancy of Il / I ( ■ '-I 48 Nary Island by the Patriots. (Indeed, there was no proof to show when or by whom Navy Island was taken possession of in 1837.) It is perhaps, evidence of the sinj^le fact ihat Van Rensselaer and myself had been employed by the provisional government, then on Navy Island, to aid, as military otiicers, in achieving the independence of Upper Canada— subject to being controverted by ourselves. But the proving of this one fact establishes the existence of no wrong — as we had the right of being so employed. In the 2 1st paragraph of your honor's charge to the jury, your honor has said, " But this Proclamation-" is only important, because it shows that the defendant, ( Mackenzie',) recognizes Sutherland and Van Rens- selaer as co-operators with him in the expedition. — Thus recognizing these men, he becomes identified with them. If it is proven that Sutherland was a co- operator with the defendant, (Mtickenzie,) he is res- ponsible for the acts of Sutherland. The defendant, (Mackenzie,) did co-operate with Sutherland, (as your honor says,) is evident from the testimony :" And this I add — 1 may have done so without committing any offence against the laws of the United States ! N According to the arguments of your honor, I had a right to go into Canada, there to enter the service of the Patriots — but if they employed me, they must take me as a man takes a wife — and make themselves responsible for all my previous trespasses and debts. The object to be pursued, as avowed in the Proclam" a/ion, was the achievement of the liberties of the peo- ple of Upper Canada — and not to commit a violation of the laws of the United States. If it were true that I volunteered my services to Mackenzie, to serve in Canada, aa a military officer, and be had aoeepted my 49 ere was no Island was )s, evidence myself had Ejnt, then on n achieving ct to being ing of this ong — as we mrge to the clamation — B defendant, Van Hens- :pedition. — s identified id was a co- ,) he is res- B defendant, id, (as your >ny :" And committing States ! nor, I had a B service of they must themselves ind debts, le Proclam" of the peo- a violation were true sie, to servA K)eeptedmy ■ervices — there was no wrong, and nothing to be con- strue^' 'nto an offence against the laws of the United Stat( Such an engagement did not embrace the fitting out of an expedition in the United States — nor for my unlawful acts, (if there were any,) did Mac- kenzie thereby, become responsible, as your h'^nor has declared. He could not, by any accepted principle of law, be deemed responsible for any unlawful acts rjk committed by me, unless it was shown he had ex- ' pressly directed them — or been present and counte- nanced their performance. Hence, it is, that this l*roC' lamaliony as a matter of evidence to sustain the in- dictment, entirely falls to the ground. Yo'^r honor was certainly in error, in charging the jur3 that if it is shown there was a combination, eacL . .nose in the combination must be held respon- sible for the acts of all his co-operators" — although it is tFue, *^ that when several combine together for the same illei>^al pui pose^each is the agent of the rest ; and any act done by the one, in furtherance of the unlawful design, is in consideration of law, the act of all. •S'/o/icV case, 1793, cited in Starkie's Evidence. Vol. I. p. 223. In the case of conspiracy, it is cited in same authority, Vol. I. p. 234, " In Hardy^s cafi-'y (Gurney's edition. Vol. I. p. 360 to 369,) BuUer J. said — in an indictment of this sort, (for con- spiracy,) there are two things to be considered ; first, whether any conspiracy exists ;• next what share the prisoner took in that conspiracy. But the same learned judge afterwards added, " before the evidence, (that is of the conspiracy so proved to exist,) can affect the prisoner materially, it is necessary to make out another point, namely, " that he consented lo the extent that ike others did.^* 50 The principle your honor has advanced, only applies when the acts are unlawful in themselves, and neces- sarily connected with, or are in furtherance of the avowed objects of the combination. The lav/ in re- lation to partnerships may be cited to sanction this principle The United States Attorney, in the 8th paragraph of his canvass of the testimony, has said—" in order ^.o subject a party to the penalties of this act of Con- gress, it is not necessary for the prosecution to prove the expedition actually invaded into, or proceeded against the neutral nation : it is enough if we show the intention of the parties, lo the satisfaction of the jury." In assuming this principle, he is undoubtedly correct — but, then, there was no offer of proof to show that the matter at Black Rock, which has been called a " military array," was admitted by Macken- zie, or any other person connected with it, to have been intended to be carried on against the dominions of the United Kingdom of Great Britain and Ireland, or any other country at peace with the United States; and this appears to be well understood by the United States Attorney ; for he goes on to say — " in this case I have chosen to prove the military expedition was conducted into the British territory." Had he done so, it would, without question, have been sufficient to show the intent. But this he did not do. I chal- lenge any one^to point to a single item of evidence adduced on the trial of Mackenzie, which went to es- tablish the alleged fact that any military evpedilion or enterprize, began and set on foot within the juris- diction of the United States^ was conducted to JVart/ Island^ in 1837--in which either William Lyon Mackenzie, Van Rensselaer, cr myself, were in any I ^ 61 y applies id neces- ce of the av/ in re- tion this )aragraph in order t of Con- i to prove proceeded we show ion of the doubtedly f proof to 1 has been Y Macken- it, to have dominions nd Ireland, ted States; the United in this case idition was ad he done sufficient to ). I chal- of evidence went to es- evpedition t ike juris- led to J^avy Ham Lyon ere in any manner connected or concerned. It is apparent that not only a link of the testimony is out — but that the whole chain is gone, which should reach from Black Rock to Navy Island. Where, then, is the testimony on which William Lyon Mackenzie has been convicted of having of- fended against the provisions of the act of Congress of 1818 ? The answer is this — and this only. It was proved " that he came to Buffalo about the 11th of Dec. 1837, and on the evening of the 12th of the same month, he, by invitation, attended a public meeting of the citizens of Bufialo, at the Theatre — ♦old the grievances of ui-i people of his country — and (as the witnesses have said,) called upon the citizens of Bufialo to give aid — in example of that which our forefathers had received in their struggle for inde- pendence:'' and in this, as your honor has said, there was nothing wrong. " That, subsequently, there was a quantity of arms at Black Rock, placed in a vacant house, near the ferry, and that when one Brace and one Barton came there to claim the arms, Mackenzie was there and objected to the arms being taken away, and said they were the very property they were trying to get, and what they wanted — if they had had them at Toronto, they would have succeeded. That they wanted the arms in Canada — and that as soon as the commit- tee in Buffalo could be consulted, the arms should be paid for, or security given for them :" and in this there was nothing wrong, as it was testified that notwithstanding Mackenzie's interference, "Brace and Barton did take and carry away such of the arms as they could find." '* That, on or about the 20th of December, 1837, 0% I i / t Sf:- he was seen oa Navy Island, in the Prorince of Up- per Canada, with a body of armed men ; and that from thenee he issued a Proclamation^ as chairman pro tern, of a provisional government:" but this con- atituted no offence against the laws of the United States ; though, on this showing, alone, Mackenzie has been convicted of the charge contained in the in- dictment. In the 23d paragraph of your honor's charge^ it appears your honor told the jury, ** that they must not say by their verdict, that all men may come to this country when they please, and aid in fitting out expeditions against other countries, with which we are at peace." To this sentiment, 1 say, amen ! and had Mackenzie been proved to have been guilty of any such offence — or had hi been Icf^alhf convicted of the matters with which he was charged, and for which he now stands condemned — he might sulTer the penalty of the laws which he had violated — and I should then have been one of the last to make an ap- peal in iiis behalf-, fur I am not one who desires that our country and our laws, should be made the sport of foreigners ; and I hold that when such are regu- larly convicted of having oli'ended against our neu- trality laws, they are thrice as guilty as citizens. In supposing that Mackenzie could have ^^ began, set on foot a military expedition or enterprize," as or alleged, 'pon my word, your honor has done great in- justice to the good sense and character of the Amer- ican people residing on the western irontier. As to Mackenzie having provided or prepared the r::>o:ins for an expedition or enterprize, the fact, which is well known, that he was at the very moment a refu- i 4^ of Up- nd that lairman his con- United Lckenzie i the in- ar^e^ it ?y must come to incr out hich we en ! and ;uiity of convicted and for uffer the — and I e an ap> ires that he sport re regu- our ncu- iizens. "began, rize," as great in- le Amer- As to le rn«»!;ns which is t a refu- "J f^rviceS'— there was no wrong, and nothing to be con-^ s(rued into an offence against the laws of the United States. Such an engagement did not embrace the fitting out of an expedition in the United States — nor for my unlawful acts, (if there were any,) did Mac- kenzie thereby, become responsible, as your honor has declared. He 'could not, by any accepted principle of law, be deemed responsible for any unlawful acta committed by me, unless it was shown he had ex- , pressiy directed them—or been present and counte- nanced their performance. Hence, it is, that this l^roc" laination^ as a matter of evidence to sustain the in- dictment, entirely falls to the ground. Your honor was certainly in error, in charging the jury, *' that if it is shown there was a combination, each of those in the combination must be held respon- sible for the acts, of all his co-operators" — although, it is true, " that when several combine together for the same ilUf^al purpose, each is the agent of the rest ; and any act done by the one, in furtherance of the unlawful design, is in consideration of law, the act of •, all. Slone^s case, l79QyC'iied in. Starkie's, Evidence. Vol. I. p. 223.; In the case of conspiracy, it is cited in same authority, Vol. I. p. 234, " In HardyU ! co.f«, (Gurney's edition, Vol., I. p. 360 to 369,) Buller J. said — in an indictment of this sort, (for con- spiracy,) there are two things to be considered ; first, whether any conspiracy exists ; next what. share the prisoner took in that conspiracy. But the same learned judge afterwards added, " before the evidence, (that is of the conspiracy so proved to exist,) can affect the prisoner materially, it is necessary to make out another point, namely, << that he consented to thi •xUnt that tht others did.^^ n 63 he'was vsen on Navy Island, in the Province of Up* per Canada, with a body of armed men ; and that from thence he issued a Proclamation, as chairman pro tern, of a provisional government:" but this con- stituted no offence against the laws of the United States ; though, on this showing, alone, Mackenzie has been convicted of tlie charge contained in the in- dictment. In the 23d paragraph of your honor's charge, it appears your honor. told the jury, ^MhiU they must not say by their verdict, that all men may come to this country when;they please, and aid in fitting out expeditions against other countries, with which we are at peace." To this sentiment, 1 say, amen ! and had Mackenzie fc^een proved to have been guilty of any such offence — or had hj been lt»;allij convicttd of the matters with; which he was charged, and for which he now stands condemned — he might suffer the penalty of the laws which ho had violated — aud< I should then have been one of the last to make an ap- peal in his behalf; for I am not one who desires that our country and our laws, should be made the sport of foreigners ; and I hold that when such are regu- larly convicted of having offended against our neu- trality laws, they are thrice as guilty as citizens. In supposing that Mackenzie could have ^'begani or set on foot a military expedition or enterprize," as alleged, 'pon my word, your honor has done great in- justice to the good sense and character of the, Amer- ican people residing on the western frontier. As to Mackenzie having provided or prepared the means (or an expedition or enterprize, the fact, which is well known, that he was at the very moment a refu- 53 of Up- nd th«t liairman his con- United ackenzie n the in- har^e, it ey must come to ting out rhich we len! and utity of convicted and for ufferlhe J — and' I ke an ap- sires that the sport ire rcgu* our ncu- tizens. " began, »rize," as great in- le.Amer- As to le means which is it a refu- u gee in the country, naked and pennyless, i3 a suffi- cient denial of the charge. What was done by the people of the frontier, in aid of the struggle for Canadian Independence, was, alone, prompted by the love they bore for repub- lican INSTITUTIONS — and the desire they entertained that all America should be free ! What then took place, would have occurred if William Lyon Mac- kenzie had not been there. American people with American principles, require not the agency of a stranger and a refugee to move them to act in such a cause. When they interfered in the political affairs of the Canadas. they did so because they believed there was to be a hearty struggle for liberty : and of this interference, Her Majesty's High Commissioner and Governor General of the Provinces of Canada has said it was " somewhat generous" — and we who were the actors, believe it to have been quite so. If the gossiping editors of newspapers in our coun- try, for the purpose of cramming the gaping multi- tude, have seen tit to represent Mackenzie as the principal agent in proceedings in which he had no more real importance than a chip in a flood — it is no reason why discredit should be made to come upon our judiciary institutions, in carrying out the joke, by making him responsible for those proceedings : — Nor should he be held accountable for matters which he neither controlled nor had any real agency in, be- cause his vanity may have led hira, like the fly in the coach, to cry out — " what a dust 1 raise P' and the more especially, when there has been no testimony given of his having committed any one unlawful act. Our laws are intended to have regard to ofl^ences and not to individuals — and ought to be applied without H 54 i prejudice, whether it were a British Marquis on trial for breaking the lamps in our streets, or a Canadian x'alriot, on a charge of having attempted to fit out an expedition within our borders, to give political liberty to the people of his country. In the second paragraph of your honor's char ore to the jury, it is said, " admitting it to be true, that all that Mackenzie is charged with having done, had been done vvith impunity in the case of Texas, South America, Greece, &c. — it had no bearing in his case." This may be true, in point of law — but jus- tice requires some modification of the rule. In a free government, like ours, the laws are formed to secure the conceded rights of the people. They are the rules adopted by the expression of the public opinion, for the government of our intercourse in society. The public voice is the true basis of ev- ery law; and the public voice may deprive a law of its force — and in eflect annul it, though it be per- mitted still to hold a place upon the statute book. — The legislative representatives of the people, mista- king the \\'\\\ of their constituents, sometimes make laws which are altoijether disregarded. Other laws, popular when enacted, become odious in time, and lose their effect by general consent. This has of- ten occurred in our country, while the obnoxious, or dire^arded laws remained for years unrepealed. It would be a tyranical and unjust principle that would allow a law which has been suffered to remain a dead letter for many years, and its provisions to be viola- ted with impunity, to be put in force against a par- ticular individual, while thousands offend and go un- molested. True liberty can only exist where the laws have an equal effect on all who are in the community. 55 I At this very time, a statute is in existence in this state, declaring the passing, offering to pass, or receiving the notes of banks not incorporated by the legishiture of this state, under ihe denomination of five dollars, a misdemeanor, and subjecting the of- fender to (ine and imprisonment. Yet, the law has been regarded by no one— and the bills it was inten- ded to prohibit from circulation, have remained in general use, as a currency, throughout the state. — The clergyman receives them in payment for his la- bor in the holy desk — the lawyer, the judge, and the clerks of our courts take them for their fees — the merchant accepts them for his goods— and the me- chanic, and laboring man is paid with them for his services ; and no one is prosecuted for a violation of the law. Under these circumstances, to inflict the penalty of this law in a few isolated cases, would be t'he extremest act of tyrany. If it be allowed, then our laws are no longer the means of preserving the well being of society — but become engines in the hands of the wicked for the purposes of revenge. If the people will violate a law, duly enacted by the legislature, and make void its whole provisions for mere convenience sake, how much more tolerable might the violation of a law he regarded, when it is done for the purpose of giving political freedom to a people, groaning under the oppression of a military despotism. 1 have now canvassed all of that I conceive to be defects in the proceedings on the trial of Will- iam Lyon Mackenzie — and 1 must believe I have made it apparent to your honor, that there was great error committed in the said proceedings — and that Mackenzie has been convicted contrary to the facts^ iF" , ,, .-A : 56 and in violation of the law applicable to his case; and that, therefore, his case presents a proper ground for the interference of the Executive Authority of the government. In choooingthe language for the expression of my opinions and arguments, in these pages, it has been my desire to be respectful and courteous ; and if I have expressed aught in a manner that may be deem- ed exceptionable, I beg your honor will not regard it as resulting from any intention, on my part, to be indecorous. If I ask your honor to reverse an opin- ion — it ought not to be regarded a disrespectful as- surance. All courts of appeal are founded upon the presumption that subordinate courts may err ; and the volumes of judicial reports, now in use in our courts, afford knowledge of many instances of learn-' cd judges, when sitting in the superior tribunal, vot-» ing to reverse decisions made by themselves while presiding in a court below. Then?fore, I request that your honor will certify to the President of the United States, by an early day, the proceedings on the trial of William Lyon Mackenzie — and that your honor will make such other suggestions to the presi- dent as shall enable him speedily to cause the release of Mackenzie from imprisonment, by granting to him a pardon ; and thereby to remove what is now re- garded a just matter of complaint by a large portion of the people of the United States, and may other- wise be fixed as a stain upon our national character, and a discredit to the perfectness and justness of our institutions. Very Respectfully, Sir, ' Your Obedient Servant, TH : J. SUTHERLAND. ,t » t sase; and r ground Ihority of ion of my has been and if I be deem- ot regard art, to be e an opin- ectful as- l upon the err ; and se in our s of learn^ 3unal, vot- ves while I request lent of the edings on d that your I the presi- the relense ting to him s now re- rge portion nay other- character, ness of our ILAND.