« AnteriorContinuar »
Mr. Emmons to Mr. Thurston.
TORONTO, October 22, 1866. During my absence a telegram from Washington asked me to go to Toronto to confer with you about counsel for American prisoners. Cau I do any good by coming now?
H. I. EMMONS. U. S. CoNsuL.
AN ACT to protect the inhabitants of Upper Canada against lawless aggressions from sub
jects of foreigu countries at peace with her Majesty. (Consolidated statutes Upper Canada, page 933, chapter XCVIII.)
For the protection of the inhabitants of Upper Canada against lawless aggressions from subjects of foreign countries at peace with her Majesty, her Majesty, by and with the advice and consent of the legislative council and assembly of Canada, enacts as follows:
1. In case any person, being 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 commits any act of hostility therein, or enters Upper Canada with a 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 person, agreeably to the militia laws: and upon being found guilty, by such court-martial, of offending against this act, shall be sentenced by such court martial to suffer death, or such other punishment as shall be awarded by the court. 3 V., c. 1, s. 2.
2. 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 company with any such subjects or citizens with intent to levy war against her Majesty, or commits any such act of felony az aforesaid, or, with the design or intent to aid and assist, he 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, then such subject of her Majesty may be tried and punished by a militia court-martial, in like manner as any citizen, subject of a foreign state or country at peace with her Majesty, is liable under this act to be tried and punished. 3 V., c. 12, s. 3.
3. Every citizen or suhject of any foreign state or country who offends against the provisions of this act is guilty of felony, and may, notwithstanding the provisions 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 offence had been committed in such county, and upon conviction shall suffer death as a felon. 3 V., c. 12, s. 4.
CAP. IV. AN ACT to amend the 98th chapter of the consolidated statutes for Upper Canada. Assented
to 15th August, 1866. Her Majesty, by and with the advice and consent of the legislative council and assembly · of Canada, enacts as follows:
1. The third section of the ninety-eighth chapter of the consolidated statutes of Upper Canada, instituted "An act to protect the inhabitants of Upper Canada against lawless aggressions from the subjects of foreign countries at peace with her Majesty,” is hereby repealed, and the foilowing section shall be, and is hereby, substituted in lieu of the said section here by repealed, and shall be taken and read as the third section of the said act.
3. Every subject of her Majesty, and every citizen or subject of any foreiga state or country, who has at any time offended, or may at any time hereafter offend, against the provisions of this act, is and shall be held to be guilty of felony, and may, notwithstanding the provisions 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 offence had been committed in said county, and upon conviction shall suffer death as a felon.
2. In case any person shall be prosecuted and tried, under the provisions of the next preceding section, and found guilty, it shall and may be lawful for the court before which such
trial shall have taken place to pass sentence of death upon such person, to take effect at such time as the court may direct, notwithstanding the provisions of the act of the consolidated statutes for Upper Canada, instituted, "An act respecting new trials and appeals and writs of error in criminal cases in Upper Canada.”
Consolidated Statutes of Upper Canada.
CHAPTER 98-A. D. 1839. AN ACT to protect the inbabitants of Upper Canada against lawless aggressions from
subjects of foreign countries at peace with her Majesty. For the protection of the inhabitants of Upper Canada against lawless aggressions from sabjects of foreign countries at peace with her Majesty, her Majesty, by and with the advice and consent of the legislative council and assembly of Canada, enacts as follows:
1. In case any person, being 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 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, then the governor may order the assembling of a militia general court-martial for the trial of such person, agreeably to the militia laws; and upon being found guilty by such court-martial of offending against this act, such person shall be sentenced by such court-martial to suffer death, or such other punishment as sball be awarded by the court. 3 V., c. 12, s. 2.
2. If any subject of her Majesty, within Upper Canada, levios 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 company with any such subjects or citizens with intent io levy war on her Majesty, or to commit any such act of felony as aforesaid, or if with the design or intent to aid and assist he 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, then such subject of her Majesty may be tried and punished by a militia court-martial, in like manner as any citizen or subject of a foreign state or country at peace with her Majesty is liable under this act to be tried and punished. 3 V., c. 12, s. 3.
33. Every citizen or subject of any foreign state or country who offends against the provisions of this act is guilty of felony, and may, notwithstanding the provisions herein before 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 offence had been committed in such county, and upon conviction shall suffer death as a felon. 3 V., c. 12, s 4.
[From the Toronto Globe of the 25th and 26th of October, 1866.)
THE FENIAN TRIALS.
Proceedings in court yesterday-Colonel Lynch in the dock--Opening address by Crown
council-Evidence against Lynch-d Fenian one of the principal witnesses. The trials of the Fenian prisoners commenced yesterday, in the court of assize, Mr. Justice Jobu Wilson presiding. A lady and gentleman from Chicago occupied a seat on the bench near his lordship. In order to prevent the overcrowding of the court, the sheriff gave strict directions to his men to keep out of the body of the chamber, and that portion allotted to the bar and press, those who had no direct business there ; but, in spite of every precaution, scores found their way in, and by the time the judge took his seat, the seats for counsel and Dearly all the available sitting and standing room inside the bar had become monopolized for the most part by those who had no interest in the proceedings, except as spectators. The gallery was the only portion devoted to the public at large, and the entrance to it was besieged by hundreds, so that when it was opened the first rush of people filled it completely, and no more could by any possibility get in, nor could half of those who were in get out again should they feel so inclined. The body of the chamber being reserved for jurors was aboat the most comfortable place, not being too full. The portion partitioned off for the convenience of the bar bad to be thinned out by the sheriff's orders before proceedings could be commenced.
Shortly after twelve the sheriff called over the names of those summoned as jurymen, a proceeding which occupied no little time, as the panel was nearly double as large as usual, and contained the names of sixty-five competent to serve.
The counsel for the Crown present were Solicitor General Cockburn and Hon. J. H. Cameron, Q.C., and for Colonel Robert B. Lynch, the first prisoner to be tried, Mr. Richard Martin, of Hamilton, and Mr. J. Doyle. The American consul occupied a seat near counsel.
The Jury.-The lawyers on both sides being ready, Colonel John B. Lynch was brought into the dock, and stood up while the clerk of the court read the indictment to him. Lynch looked on this occasion somewhat more nervous and anxious than on his first appearance in the dock. The sheriff then proceeded to impanel the jury, when the following persons were called and sworn in: Abden S. Gould, sawyer, East Gwillimbury; John Clarke, yeoman, York; Daniel McDonald, farmer, King; John M. Beare, yeoman, Scarboro’; Charles Fry, farmer, King; Thomas Marston, farmer, Markham ; Oliver Lundy, farmer, Gwillimbury; Roderick McLeod, yeoman, Vaughan ; Philip Gower, Whitchurch; George Garren, farmer, King; George Granger, yeoman, York; William Corna, Georgina.
Challenges. The following persons, called to serve on the jury, were challenged by prisoner's counsel at different times: Andrew Graham, Markham; Henry Norris, Albion; John Lock, storekeeper, Yorkville; James McMaster, farmer, Etobicoke ; James Wadsworth, far. mer, Etobicoke; George Howard, blacksmith, Streetsville ; William Atkinson, carpenter, Aurora; Ebenezer Anthony, farmer, west half of Chinguacousy; Donald Currie, farmer, Caledon; Alexander Neilson, farmer, west half of Scarboro': Nathan Irwin, farmer, King; Robert J. Smith, Yorkville. There were, in all, twelve challenges.
The witnesses were also called, and those that counsel for the defence wished out of court until their evidence was called on were ordered into the jury-room. Address of Crown counsel.—Hon. John Hillyard Cameron, Q. C., then opened the
He said: May it please your lordship and gentlemen of the jury, the trial of the prisoner, Robert B. Lynch, is one of great importance, not merely to himself—and the importance to himself is very, very great, indeed, when you reflect that the issues of life and death are dependent on your verdict—but this trial is of great importance to the whole of the people of the province. It is important to our position as a colony of the empire and to the manner in which it is to be hoped we shall be allowed to pursue our peaceful avocations in all time to come. The prisoner has been indicted under a statute passed under very peculiar circumstances a great number of years ago. It will be within the memory of most of you, probably, (and some of you may have personal knowledge of the fact,) that, in the year 1837, there were difficulties arising in both sections of Canada, and, in consequence of these, armed bands, both within and without the country at that time, having urged themselves forward against the sovereign, it became necessary to take steps to mark the feeling of the people of the country and to vindicate the law against those endeavoring to levy war against her Majesty the Queen and to destroy the constitution under which the people of Canaila lived. It was then believed that the general law of the land, and that under which parties placed in the position of those now offending against the law were indicted, was not of the character it ought to be in order to secure speedy justice to those situated as were those now about to be brought before the court. Accordingly, a law was passed, the effect of which was to erect a military tribunal, if those administerirg the law thought such a course necessary, and provide a more speedy trial under certain circumstances, which the law pointed out. Under that law, various persons taken in arms, some here and some coming from & foreign country, were tried by direction of the judge of the day; and that law was deemed to be so beneficial on such occasions that, though the occasion for its use had happily passed away, it was allowed to remain on the statute book of Upper Canada, in order that if, at any future time, persons engaged in attacks on the peaceful, unoffending people of the province, those committing such outrages might be made amenable to the provisions of the act, if gov: ernment thought necessary. It provides, as I have said, for trial before court-martial, and that that which, under ordinary circumstances, would have been a crime of high treason should be only one of felony, although the penalty is made the same as in the case of high treason. But, while this is the case, the law provides also that the ordinary tribunals of the land might be made use of if, at any future time, the law of the land required vindication in any way similar to that period. The law gives, therefore, the opportunity to bring such cases as these before a court-martial or before the ordinary tribunals of the country, where those constituting such tribunals—as the jury before me-might pass judgment on the accused. Under that statute you are now impanelled to try the prisoner at the bar, at a period of nearly thirty years from the time the act passed, the government believing that in one respect, though not in all, the present circumstances are very similar to those under which offenders were arraigned at the time the statute came in force. The government were determined to vindicate the law in the person of the prisoner and his accomplices; not that they intended exercising the extraordinary powers with which they had been vested. The prisoner would receive as fair and full a trial and defence as any of our own people would in ordinary times, although the offence was a most extraordinary one in its character. The prisoner stands before you to-day, gentlemen, indicted on three counts. The statute under which he is indicted recites that it is " for the protection of the inhabitants of Upper Canada against lawless aggressions from subjects of foreign countries at peace with her Majesty ;" and the first clause, under which the prisoner stands indicted, declares that in case any person, being 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 Cavada, or commits any act of bastility therein, or enters Upper Canada with design or intent to levy war against her Majests, or commits any felony thereiu for which any felon would, by the laws of Upper Canada, be liable to sutter death, then the governor may order the assembling of a militia general court-martial, for the trial of such person agreeably to the militia luws; and, upon being found guilty by such court-martial of offending against this act, such persons shall be sentenced by such court-martial to suffer death or such other punishment as shall be awarded by the court." The third section adds further that “every citizen or subject of any foreigu state or country who offends against the provisions of this act is guilty of felony, and may, notwithstanding the provisions herein before 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 offence had been committed in such county, and, upon conviction, shall suffer death as a felon." This is the law under which the prisoner stands indicted and on which the three counts charged against him were framed. In the first count he is charged with entering Upper Canada with intent to levy war against her Majesty. The second count charges jhim with being in arms with the same intent; and the third charges him with having committed an act of hostility with the same intent; so that on this indictment it will be your duty to inquire whether any one of the three counts is proved against the prisoner. The consequences that would result from your conviction of prisoner's guilt, you have, as a matter of course, nothing to do with. The case of this man, gentlemen, and of all the others similarly situated as he is, is one of great peculiarity and of the greatest importance. It is well known throughout the world that the government of the country to which we belong is at perfect peace with the United States. We have no quarrel with that government or the people of that country, as such. We are subjects of her Majesty, desirous, as colonists here of pursuing our own course, and going on in our own peaceful way-anxious to cultivate all the arts of peace at home and abroad-desirous to do all we can to extend what we believe to be the future of our own country in the manner which will best serve us. We feel that one of the chief objects we ought to aim at should be, as far as we can, to remain at peace and amity with the powerful people living south of us-people in a great measure of the same bone and sinew as ourselves. We are at peace with that great country, and have done nothing to lead any of the peɔple of that land to make loroads on us. We have no desire to break in on them; and hence we feel that to justify any hostile incursions on us, there must be peculiar circumstances, which have certainly not arisen in this case. Some of the men to be brought before the court are charged with being subjects of her Majesty ; many claim to be citizens of the United States--they claim all the protection and rights awarded to citizens of that country. These people could have no right whatever, without cause of quarrel, to make a raid on us, kill our people and destroy their habitations. No idea they might entertain of any wrongs which, as her Maj. esty's subjects, they had to endure—no idea they might have of any means of redress which lay in their power, could justify or extenuate their crime in coming in on us. And wbat. eevr they might say in reference to the position they occupied in another land, it was beyond a doubt that they had no claim against the people of this country, they had no right or ground of attack on the inhabitants of Canada. We are here the subjects of her Majesty, contented with the manner in which the laws are administered and the country governed, content with equal rights and equal justice, which are offered to all here. Living thus under the sway of our sovereign, we find it hard to imagine that any body of men should be stirred up to bring amongst us strife and bloodshed in order to set right what they conceive to be grievances. And we feel, too, that even though they entertained the belief that their wrongs should be redressed, and thought it would be advisable for them to appeal to arms, it is not on this country they should make their descent—we feel that it is not here their battles should be fought-we feel that it is not here they should commence those acts, by means of which they hope some day to find themselves in a different position from their present one. From the history of Ireland, we know that over and over again many of her people bave been discontented. There have been difficulties, and there has been, unfortunately, a degree of bickering and hatred which inany of us are unable to understand. We cannot see any reason for, or justify those extreme measures which have been from time to time adopted. Secret associations, organized for the overtbrow of the government, have existed, and sedition in that land has broken out into open warfare, and been the cause of misery, bloodshed, and ruin to thousands and tens of thousands. Many of these men acted from conviction, but they were misguided, and we know how little they effected towards stirring up the whole body of the people. We know that on the last occasion on which an uprising was attempted, it was a miserable failure, and that the only place at which those in rebellion then sought to make a stand against the arms of England, had been rendered memorable by the ridicule which attached to it as a battle-field. Amelioration after amelioration had been given that land, and if any section of its people imagined they were wronged, we know that the course lately taken by some of them was not the right one to secure a redress of their grievances—we know that they should not rise in arms against her Majesty, and endeavor, by force of arms, to obtain that which a vast majority of the people of Ireland were averse to-thus creating bloodshed, misery, and beart-burnings there. Not satisfied with that, they endeavored to extend their plotting and javasion to another land, whither many of their countrymen had come-men who had, perhaps, once added to the discontented at home, but who were now living at peace-men who
had deliberately chosen Canada as their home-who were fully satisfied with it. Men come amongst us to endeavor to force the people from their allegiunce-to bring ruin and wretched. ness in our midst by causing us to defevd our homes and hearths from invaders coming from a country with which we are at peace. The statements I have made are true-are matters of bistory-and all the reasons which might exist on the other side of the Atlantic are not sufficient to create so gigantic a conspiracy as seems to have sprung up on this. And while in the United States, as well as here, a free home is offered to all, we did not expect that men were to be found over there plotting against the power of her Majesty on the other side of the Atlantic-much less men who would endeavor to make this country the stepping-stone to such an end. For the last few years only, we have been hearing of such cases. At first, there was a small gathering of men who formed themselves into a little knot of covspirators, whose object was to convert Ireland into a republic. By degrees there was a change, and the ramifications of the conspiracy became more extended. From one section of the United States to the other, the rumor went abroad that in almost every State there were men engaged in this vast conspiracy. There were said to be subscriptions of arms, and everything neces. sary to bring about an act of hostility and violence against the dominions of the sovereign was said to be forthcoming. But every indication pointed to Ireland as the place where the action originated, and where the battle would be fought out. After a time attention began to șe directed towards this country, and it was confidently asserted that instead of Ireland being made the battle-field, this province of Canada was to be the field of fight. We were, it was said, to have incursions and raids in every direction-our peaceful people were to be worried by being kept in arms, or in a state of anxiety for the safety of those going to the battle-field. We could hardly bring ourselves to imagine that such a state of things could exist; that we were to be attacked from the borders of a country with which we were on the most friendly footing, and by a people with whom we had no cause of quarrel. In spring, the rumors became more rife. Day after day men came from the United States to inform our government of the efforts made and the means used for invasion. At one moment we were to be attacked in March, then in May; and then we were informed that some time in May, attempts would be made in different places, by armed bands, to obtain a footing, and that once that were obtained, the means would be offered to those coming over to hold this province against all the power her Majesty could bring against them. Many never dreamed that any body of men could be found anywhere, so mad as to make such an attempt on this province, and they looked on the whole thing as a delusion, and never woke up till the alarm rang throughout the whole province that these men, calling themselves Fenians, were marching on us; that they had landed on our shores, and were carrying fire and sword into the peaceful habitations of our people; that our young men, full of hope and vigor, had shed their blood repelling the invaders. The history of the few days that followed that invasion, you know; how, within a few hours from the time the news first reached us, the people sprang to arms all over the country-the volunteers turned out in every direction ; and if more were wanted to show the futility of the invasion, it was shown in the fact, that though the misguided invaders were led to believe there was a considerable feeling in their favor, they found no support whatever in the country. You heard nowhere of any one desirous of joining them, or of any wishes for their success. During the short time they remained on the soil, they found how utterly mistaken they were, either in their calculation of being joined by our people, or by those of the United States, on whom they relied. They saw they could receive no welcome here, except such as we have extended to these prisoners; when, too late, they saw that for their acts the law would hold them responsible, and any who could, were glad to escape in ignominious flight to the place from whence they came. There were some who remained behind in our hands as hostages for their acts—as those who would have to answer to the law for every single wrong these men had committed; and among those who 80 stand, is the man before you this day, who, under the name of Robert B. Lynch, is here, charged as havivg bad a command amongst these men-as having a knowledge which should have taught him better—as being more responsible than the mere scum of those engaged. He stands here to answer with his life, if he be found guilty, to the charge brought against him-he stands here to answer for the sorrow, desolation, and death caused by him and his fellows. It is a solenn position in which he is placed, and it is a solemn duty we have to perform towards him. And I may add, that it is well for him, in our exercise of that duty towards him, in the position in which he is placed, that he bas to be tried by that British justice which he and so many others seem so ready to condemo-it is well for him he knows he is sure of a fair trial; that there will be nothing unjustly or unfairly urged against him, either in the address to the court or the evidence, beyond that which can be substantially proved. He can feel assured that there is nothing the Crown desires, either in the array of jurors or anything to be brought before the court, or anything his counsel may desire with regard to witnesses --- he can feel, I say, that there is nothing in this way he may not have as fully, freely, and fairly as can be offered to any man, without the slightest danger of any prejudice, except the natural prejudice arising from his position, and the recollection which we cannot banish from our minds, of the bloody scenes of June last, and which we would be more than men if we could forget. The evidence which we bave to offer, I shall briefly detail to you. The indictment declares that we are at peace with the United States, and as a matter of fact I shall have to ask that question. The indictment